Captivity and Imprisonment in Medieval Europe, C. 1000-C. 1300

CAPTIVITY AND IMPRISONMENT IN MEDIEVAL EUROPE, 1000–1300 Jean Dunbabin

CA PT IVIT Y A N D IM PRISO N M EN T IN ME D IEV A L EU RO PE , 1000–1300

Medieval Culture and Society General Editor: Miri Rubin Advisors: Jean Dunbabin and Robert Stacey Medieval Culture and Society provides a frame-work for the study of an array of themes in the history of medieval Europe, including some which are looked at comparatively, and approaches them in the light of the new theoretical reflections. The books in the series will be useful to students, to a wide range of scholars and to the general reader. Written in clear and elegant prose, they concisely present new sources and their interpretation and also highlight underlying method and theory. Published titles Jean Dunbabin CAPTIVITY AND IMPRISONMENT IN MEDIEVAL EUROPE, 1000–1300 Elisabeth van Houts MEMORY AND GENDER IN MEDIEVAL EUROPE, 900–1200 Phillip Schofield PEASANT AND COMMUNITY IN MEDIEVAL ENGLAND, 1200–1500

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CAPTIVITY AND IMPRISONMENT IN MEDIEVAL EUROPE, 1000–1300 Jean Dunbabin St Anne’s College, University of Oxford

© Jean Dunbabin 2002 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1T 4LP. Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The author has asserted her right to be identified as the author of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2002 by PALGRAVE MACMILLAN Houndmills, Basingstoke, Hampshire RG21 6XS and 175 Fifth Avenue, New York, N.Y. 10010 Companies and representatives throughout the world PALGRAVE MACMILLAN is the global academic imprint of the palgrave Macmillan division of St. Martin’s Press, LLC and of Palgrave Macmillan Ltd. Macmillan® is a registered trademark in the United States, United Kingdom and other countries. Palgrave is a registered trademark in the European Union and other countries. ISBN 0–333–64714–9 hardcover ISBN 0–333–64715–7 paperback This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. A catalogue record for this book is available from the British Library. A catalog record for this book is available from the Library of Congress. 10 9 11 10

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CO N TEN T S Acknowledgements Abbreviations 1 2 3 4 5 6 7 8 9 10 11 12

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Introduction The Late Roman Legacy in Western Europe The Means of Detention in the High Middle Ages Castellans, Jailers and Guards The Keeping of Captives in Private Houses Coercive Captivity Custodial and Punitive Captivity Conditions of Captivity Release from Prison Ecclesiastical Imprisonment Imprisonment and the Medieval Imagination Conclusion

1 18 32 46 62 80 98 114 130 144 159 170 175 197 203

Notes Further Reading Index

v

ACK N O W LED G EM EN T S

I am most grateful for advice and help received from various colleagues at St Anne’s College, especially Betty Rutson, Vincent Gillespie, Tom Keymer, Kathryn Sutherland, and Nigel Bowles. Jill Lewis and Peter Ghosh uncomplainingly accepted the larger burden of administration that fell on their shoulders as a consequence of the two terms’ leave I enjoyed while writing this. I would like to record my gratitude to the Fellows’ Secretary, and to the College Librarian and his staff; also to the staff of the Bodleian and the Modern History Faculty Libraries in Oxford, the Firestone and the Institute for Advanced Study Libraries in Princeton, and the New York University Library. My debt to Professor Edward Peters is great, not only for extensive bibliographical suggestions, but also for inspiration from his chapter in The Oxford History of Prisons. Rees Davies, Paul Brand, Berenice Kerr, Patrick Nold and Jörgen Peltzer very kindly furnished me with references. Stephen Davies allowed me to cite his unpublished thesis, and found the relevant passages for me. Sarah Kay not only read a draft of Chapter 11 but she gave me invaluable advice on how to improve it. I would like to thank Miri Rubin and Robert Stacey for their encouragement to go on with the project once I had suggested it, and for their helpful criticisms of a draft. As always, my husband John has been interested and encouraging about what I was trying to do, and endlessly helpful with suggestions.

vi

ABB REV IA TIO N S

AASS

Acta Sanctorum, ed. J. Bollandus (Antwerp, 1643–)

Beaumanoir

The Coutumes de Beauvaisis of Philippe de Beaumanoir trans. F.P.K. Akehurst (Philadelphia, 1992)

Book of Ste Foy

The Book of Sainte Foy, ed. and trans. P. Sheingorn (Philadelphia, 1995)

Bowsky, Siena under the Nine

W.M. Bowsky, A Medieval Commune. Siena under the Nine, 1287–1355 (Berkeley and Los Angeles, 1981)

Chartes de Louis VI

Recueil des Chartes de Louis VI, ed. R.-H. Bautier and J. Dufour, 2 vols. (Paris, 1992, 1994)

Corpus Iuris Canonici

Corpus Iuris Canonici, ed. E. Friedberg, 2 vols (Leipzig, 1879, 1881)

Correspondance administrative

Correspondance administrative d’Alphonse de Poitiers, ed. A. Molinier, 2 vols. (Paris, 1894)

Le droit coutumier de Cambrai

Le droit coutumier de Cambrai, t. 1, ed. E.M. Meijers and A.S. de Blécourt (Haarlem, 1932)

EHR

English Historical Review

Etablissements

The Etablissements de Saint Louis. Thirteenth-Century Law Texts from Tours, Orléans, and Paris, trans. F.P.K. Akehurst (Philadelphia, 1996)

Guillaume le Breton

Guillaume le Breton, Philippide in Oeuvres de Rigord et de Guillaume le Breton, ed. H.-F. Delaborde, t. 2 (Paris, 1885)

Jocelin of Brakelond

Chronica Jocelini de Brakelonda De Rebus Gestis Samsonis, Abbatis Monasteri Sancti Edmundi, ed. and trans. H.E. Butler (London, 1949)

Jones Italian city state

P.J. Jones, The Italian City State 500–1300 (Oxford, 1997)

vii

Abbreviations

viii

Liber Instrumentorum Memorialium MGH SS Olim

Liber Instrumentorum Memorialium. Cartulaire des Guillems de Montpellier Soc. archéologique de Montpellier (Montpellier, 1884–6) Monumenta Germaniae Historica, Scriptores Les Olim ou registres des arrêts rendus par la cour du roi, ed. le comte Beugnot, t. 1 and 2 (Paris, 1839 and 1842)

Orderic Vitalis

Orderic Vitalis, Ecclesiastical History, ed. and trans. M. Chibnall, Vol. 6 (Oxford, 1987)

P.L.

Patrologiae Latinae cursus completus, series Latina, ed. J.-P. Migne (1844–) H. Platelle, ‘La violence et ses remèdes en Flandre au XIe siècle’, Sacris Erudiri 20 (1971), 101–73

Platelle ‘La violence et ses remèdes’ Pugh, Imprisonment

R.B. Pugh, Imprisonment in Medieval England (Cambridge, 1968)

RCA

I Registri della Cancelleria angioina, ed. R. Filangieri et al. (Naples, 1950–81)

Registres

Les Registres de Philippe Auguste, ed. J. Baldwin (Paris, 1992)

Richer

Richer, Histoire de France t. 2, ed. and trans. R. Latouche (Paris, 1964)

RIS

Rerum Italicarum Scriptores

Robert of Torigny

Chronica Roberti de Torigneio, Abbatis Monasterii Sancti Michaelis in Periculo Maris, ed. R. Howlett, in Chronicles of the Reigns of Stephen, Henry II and Richard I, vol. IV, 81–315.

Roger of Howden Sachsenspiegel

Chronica Rogeri de Houedene, 4 vols, ed. W. Stubbs (London, 1868–71) The Saxon Mirror. A Sachsenspiegel of the fourteenth century, trans. M. Dobozy (Philadelphia, 1999)

Strickland, Warfare and Chivalry

M. Strickland, Warfare and Chivalry. The Conduct and Perception of War in England and Normandy, 1066–1217 (Cambridge, 1996)

Suger

Suger: The Deeds of Louis the Fat, ed. R.C. Cusimano and J. Moorhead, (Washington, DC, 1992)

Summa de legibus Coutumiers de Normandie. Textes critiques, ed. J. Tardif, t. 18, La summa de legibus Normannie in Normannie in curia laicali curia laicali (Paris, 1881)

ix

Abbreviations

Tanon, ‘Le formulaire de Guillaume de Paris’

L. Tanon, ‘Notice sur le formulaire de Guillaume de Paris’, Notices et extraits des manuscripts de la Bibliothèque Nationale et autres bibliothèques, t. 32, Part 2 (Paris, 1888)

TRHS

Transactions of the Royal Historical Society

Usatges

Usatges of Barcelona. The Fundamental Law of Catalonia, trans. D.J. Kagay (Philadelphia, 1994)

Vita Gaufredi

John of Marmoutier Vita Gaufredi in Chroniques des comtes d’Anjou et des seigneurs d’Amboise, ed. L. Halphen and R. Poupardin (Paris, 1913)

Wurstemberger, Peter der Zweite

J.L. Wurstemberger, Peter der Zweite Graf von Savoyen, Markgraf in Italien: sein Haus und seine Lande vol IV (Bern, 1858)

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1 INTRODUCTION

‘Whatsoever is so tyed, or environed, as it cannot move, but within a certain space, which space is determined by the opposition of some external body, we say it hath not Liberty to go further. And so of all living creatures, whilest they are imprisoned, or restrained, with walls or chayns . . . we use to say they are not at Liberty, to move in such manner, as without those externall impediments they would’ (Hobbes, Leviathan, Chapter 21).

It is the argument of this book that what Hobbes said in 1651 offers an effective path into understanding medieval ways of thinking about restraints imposed by one man or a collective on the liberty of another. In each case the captive faced barriers to his free movement. These barriers were of many different kinds across the three centuries under consideration. As Professor Edward Peters has perspicaciously pointed out: ‘Confinement varied widely, since imprisonment was thought to be chiefly apprehension and control of someone, not necessarily strict control.’ 1 In other words, the conditions of captivity might range from fairly minimal restraint to extreme physical restriction in tiny prisons; yet what brought all captives together as a group was their subordination to the will of their captors. Prisoners could not again enjoy their natural freedom of movement until they had satisfied the demands laid upon them, where that was possible. This common bond of subordination to the will of another was undermined neither by the large range of

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Captivity and Imprisonment in Medieval Europe, 1000–1300

reasons that led to detention nor by the differences of conditions endured. Working on this assumption, I aim to investigate broadly what I shall consider, initially at least, as a single phenomenon, captivity in all its forms in the high middle ages. I shall try to shed some light on how the medieval authors who wrote about it envisaged it, how its victims experienced it, what those who imposed it on others normally hoped to gain by it, why the use of chains and imprisonment increased over the period, and how justifications for such restraint and normative limitations upon it evolved during the period 1000–1300. Obviously my theme is implicated in the history of legal developments, but my intention (perhaps too ambitious for a book as short as this) is to place legal developments within what I see as a larger contextual framework. The words ‘prison’, and even more ‘imprisonment’, are immediately associated in the modern mind with the penal system. Our first thought is that the subject to be dealt with is the judicial punishment of crime. This mental link has survived intact into the twenty-first century, despite the huge numbers of prisoners of war, political prisoners, and prisoners of conscience on whom our newspapers daily report, and despite our awareness that debtors’ prisons are not long extinct in Europe. The historian of the years 1000–1300 cannot afford so easily to pigeonhole prisons under the heading ‘penal system’. This is not because imprisonment was never in that period imposed as a judicial punishment; as we shall see, it had always been used punitively at least occasionally; it became a commoner sentence in the ecclesiastical courts during the twelfth and thirteenth centuries; and towards 1300 lay courts were increasingly imitating this. But for the most part, those who presided over secular courts in the thirteenth century thought of imprisonment as custodial, a means of preventing the escape of those accused of serious crime, a preliminary to, not a consequence of, the legal trial that law enjoined. They therefore saw it as essential only where jurisdictions chose to limit the days or places on which trials for felony could take place (thereby necessitating delay between arrest and trial); or where inquisitorial forms of trial (with a magistrate conducting examinations of defendants and witnesses) were used – a prolonged process; and neither of these were anything like universal even in 1300. Besides, as we shall see, much if not most captivity throughout the period was coercive, enjoying what was at best an oblique relationship with the processes of law.

Introduction

3

The distinctions between different forms of imprisonment (punitive, coercive, custodial) that sociologists automatically make in the twenty-first century, the early foreshadowings of which can be clearly detected in some societies and some contexts by 1300, would have meant little to the inhabitants of western Europe in 1000. Furthermore, in 1000 the cause that led a man to be restrained had very little bearing on his treatment by his captors; what mattered to his comfort was his rank. By 1300, rank and money, especially money, were still advantageous; but they could not achieve as much. In some jurisdictions those guilty of crime were already conceptually distinguished from prisoners of war, hostages or debtors, even though in terms of the treatment they received the lines between the categories remained blurred. To trace this conceptual development is one of my aims. In practice, the usual form of imprisonment in 1000 was coercive, not custodial or punitive. It was a means of extorting a ransom or a debt claimed by the captor, an instrument of private vengeance, a form of discipline an aristocrat might impose on members of his familia (household), or a method of forcibly withdrawing from the political scene an opponent too dangerous to let loose. By 1300 examples of all these forms of imprisonment could still be found. In addition, hostage-taking remained commonplace, assumed to be the obvious form of guarantee available to negotiating parties to ensure that the terms of an agreement were carried out. But by 1300, the link between imprisonment and the criminal law was becoming more conspicuous; custodial and punitive detentions had begun to overshadow the coercive. The three illustrations that follow have been chosen fairly randomly to illustrate different kinds of captivity across the centuries. In discussing them I hope to pick up any hint there may be of contemporary reactions towards the act of imprisonment, because public attitudes are often our only test of the legitimacy of actions. The first illustration comes from Herman of Tournai’s story of the monastery of St Martin in Tournai in 1093: In those times . . . Everard, the castellan of Tournai, rebelled against Count Robert of Flanders. He maintained a large military force and frequently seized great numbers of men, both rich and poor, from the count’s lands and held them for ransom. Shackled and hungry, they flocked to Abbot Odo (of St Martin’s) and tearfully pleaded with him to relieve their miseries. Moved to pity by their tears, the abbot gave them abundantly of the money that had been given to him and so redeemed many men.2

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Captivity and Imprisonment in Medieval Europe, 1000–1300

This story comes to us from a unique source, and cannot be checked against other accounts. On the other hand, it was written by an inmate of Odo’s monastery, one who had been taught by Odo in his youth, and who knew that Odo’s charitable habits were soon to get him into trouble with his fellow monks. While Herman may well have embellished his tale, and certainly had no incentive to present Everard’s side of the case objectively, nor had he any reason to invent so serious an allegation. In so far as it can be trusted, his story is remarkably revealing. Here confinement rather than captivity was at issue. The people Everard’s soldiers seized had their movements severely restricted by shackles – perhaps so severely that the peasants among them could not work in their fields. But slow progress was possible; they could and did go out to beg. The implication is that, in this instance at least, the shackles put on their legs permitted a degree of mobility yet were sufficiently well made to resist any effort to break them open except by the soldiers’ keys. They presumably therefore had metal locks. As Herman portrayed Everard’s intention, the purpose of the exercise was to raise money fast for his own needs by demanding ransom, while at the same time inflicting misery on the count’s men. Abbot Odo’s reaction was not to attempt to excommunicate Everard or to even to denounce him; he simply paid as many ransoms as he could, thereby ensuring that the shackles would be undone. Odo’s calm behaviour suggests an acceptance that when one substantial aristocrat wielded the sword against another, attacks on that man’s dependants were only to be expected. On the other hand, Herman did call Everard’s defiance of the count a rebellion. So although the chronicler did not specifically condemn the effects of the rising, he certainly regarded the rising itself as an illegitimate action against established authority. The whole episode aroused his disapproval. However, we may surmise that those who supported Everard took a different line. They saw themselves as involved in a defence of customary castellan rights against the tyrannical innovations of the count, whose right to rule was in any case highly questionable. Robert the Frisian, count of Flanders and lord of Tournai, the father of the Robert against whom Everard rebelled, had usurped the county from his nephew in 1071. The new count’s title was by no means as firmly established in law as Herman liked to pretend. The second instance is one of the most famous episodes in twelfthcentury history, the capture of Richard Lionheart by Leopold, duke

Introduction

5

of Austria, just before Christmas in 1192, and the king’s subsequent imprisonment in various castles in Austria and Germany for over a year, until an agreement was made for a substantial sum of money to be paid over for his release. Here considerable numbers of accounts by English chroniclers and briefer records by others survive. In so far as anything can be established of the late twelfth century, the facts of Richard’s captivity would seem to be beyond doubt.3 What strikes the modern reader is Leopold’s opportunism in seizing the wealthy prince as he returned from his crusade against Saladin’s troops in Outremer, an opportunism compounded by the Emperor Henry VI’s determination to exploit the occasion. Richard’s imprisonment until 14 February 1194, and the subsequent taking of hostages in his place, had little if anything to do with judicial proceedings – the trumped-up charges Henry VI at one point brought against the king were easily dismissed.4 Nor was Richard a prisoner of war. His fault was to attempt to travel incognito (admittedly a foolish step) across lands among whose rulers he was unpopular (he had humiliated the duke at the siege of Acre in 1191), at a time when both Leopold and the Emperor Henry were desperate for money.5 The terms for his liberation were a huge payment and some assistance to Henry VI’s projected Sicilian campaign, with hostages sent to the emperor until the money was fully paid up. Though legend soon created a romantic glow around the episode,6 Richard’s imprisonment had much in common with the modern kidnapping of wealthy business men to raise money. Yet the perpetrators of this kidnap were princes of distinction, not perceived by their contemporaries as the medieval equivalents of mafiosi or terrorists. Envy, not abhorrence, was the usual response their deed evoked among laymen (though Leopold was excommunicated for it). As for Richard, that he should have allowed himself to be captured was viewed as a personal humiliation.7 Richard’s conditions of imprisonment were in general those regarded as suitable for a member of the ruling class, except that one contemporary alleged that his guards were not of the requisite status.8 Though locked up, he was not chained; adequate food, clothing and servants were provided for him. And, most importantly, the whole resources of the kingdom of England and his extensive continental lands were tapped to ensure his rapid release. The incident was treated by the English government under Hubert Walter, archbishop of Canterbury, as though it were an unfortunate act of God for which the king’s subjects had

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Captivity and Imprisonment in Medieval Europe, 1000–1300

a duty to offer immediate remedy. Censure of the king’s captors was apparently far from the archbishop’s mind. The third illustration was the fate meted out to Count Ugolino della Gherdesca, briefly ruler of Pisa, imprisoned by his enemies in 1288 and condemned as a traitor because he was alleged to have been responsible for the loss of important Pisan strongholds to Florence and Lucca. Chained and locked up with other male members of his family in a dark, miserable prison, he was left to starve to death.9 Again, the episode was recorded by a large variety of chroniclers, most of whom had only second-hand knowledge of what had occurred. As they saw it, the significance of the episode lay in the turn of the wheel of fortune; ‘how are the mighty fallen.’ They did not reflect on whether this was an appropriate way for the Pisans to treat an ex-ruler. Dante, who by placing Ugolino in the second lowest ring of hell demonstrated his conviction that the death penalty was entirely deserved, did indict the Pisans of great cruelty, but on the grounds that they had treated his children and grandchildren in the same horrific way as Ugolino himself.10 Ugolino’s death illustrates medieval imprisonment at its most wretched. Because the charge he faced was of treason, his rank failed to protect him from treatment usually suffered only by thieves, arsonists or murderers caught in flagrante delicto (red-handed), or by those regarded as notorious heretics. And even these categories of wretches were at least in theory entitled to bread and water before execution. In Ugolino’s case, imprisonment was quite deliberately used as a means of ridding Pisa of what some members of its new ruling class now regarded as the city’s most dangerous enemy, while yet avoiding the potential trouble of a public hanging. It has been customary in the past to regard this third kind of custody as penal, and therefore as different in nature from the other two. Ugolino’s imprisonment followed a trial; it was part of the criminal process. But while his imprisonment was indeed the result of a judicial verdict, the cruellest part of his treatment, the cutting off of food and water so that he and his offspring should die of starvation, was apparently introduced subsequently to any formal court proceedings. In any case, it is over-schematic to draw a clear-cut distinction between his fate and that of the peasants shackled by Everard because, as I hope to show more fully below,11 determining what constituted a criminal trial before about 1200 is difficult, and even after 1200 can be obscure. We have no right to assume that in the incident

Introduction

7

described by Herman of Tournai, Everard’s soldiers were not following an order formulated in the castellan’s court, in other words a form of judicial sentence; the probability must be that they were. If we are to persist in regarding these instances as different in kind because different in degrees of legitimacy – there can be no question as to the difference in degrees of cruelty – it requires clearer grounds for distinguishing morally between the two. The argument of this book will be that such a justification had, after a long gestation, emerged by 1300; in some places and in some contexts criminal imprisonment could be precisely differentiated from other forms of captivity. For example, it was so in Alfonso X’s Siete Partidas, produced by around 1265, and strongly influenced by Roman Law. 12 By then, in Castile crime was clearly seen as an offence against the public good. The sine qua non for this new development, which created a distinction between private initiative and public punishment, was the emergence of the state, a defined geographical area whose ruler had a monopoly of coercive jurisdiction over its inhabitants. Pisa was such a state in 1288. The condemnation of Ugolino was therefore a public act. While Everard’s castellanship had some of the characteristics of a state, its boundaries were too ill-defined and its relationship with the lordship of the count of Flanders too fluid to satisfy the criteria for statehood. Everard’s sentence on the count’s men cannot be clearly categorized either as public or as private punishment.13 These examples are intended to show that the history of the state and that of criminal incarceration are inextricably linked. By studying the re-emergence of the latter in western Europe, I hope to shed a small ray of light on some aspects of the formation of modern western states. In the three illustrations of captivity discussed above, the outcomes represented the interests of the captors; the local powers were using their coercive authority to fulfill their own ends. While there can be no doubt that in the case of Ugolino the intention was punitive as well as coercive, a desire to punish probably went hand-in-hand with the desire to enrich themselves in the actions both of the castellan of Tournai and of the Emperor Henry VI. In so far as they can be gauged, popular reactions to what must seem to us abuses of power were so muted as to offer little basis for a theory that contemporaries regarded any or all of them as morally outrageous. In each case, where there was criticism, it was not directed against the principle that one man might be seized and held by another.

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Captivity and Imprisonment in Medieval Europe, 1000–1300

The theme of this book may be criticized as determinedly unanalytical in lumping all forms of captivity together as the object of investigation. I do not seek to deny that, by 1300, a distinction between those imprisoned for crime and other captives was coming to be perceived, most clearly in England and in the Angevin kingdom of Naples (hereinafter called ‘the Regno’), where the Crown had long claimed a monopoly of higher criminal jurisdiction; also in the Italian city states where the impact of Roman law was strong; and in Aragon and in Castile (where the Crown’s claims were as yet by no means uncontroversial). Yet even in these countries clarity on the issue was only just being achieved by the second half of the thirteenth century. In 1279, Charles I of Anjou had to issue orders to all his officials in the Regno, explaining that hostages should not be treated in the same way as criminals; 14 on another occasion he ordained that those accused of heresy should not have to pay the charges imposed on criminals.15 As for England, the confusion that still reigned between royal, county, municipal and franchisal jails in the thirteenth century argues powerfully against the view that inmates of prisons were clearly categorized by the government.16 For example, as late as the reign of Edward I, the Tower of London might hold prisoners of state like John Balliol, onetime king of the Scots, prisoners of war, felons, Jews under pressure to pay tallages, royal officials who had failed to present their accounts, and hostages.17 This surely suggests that administrative convenience, not perceived degrees of personal guilt, dictated the arrangements. The most controversial assumption I have made in this book is that prisoners of war were often regarded as guilty of crimes and therefore only clearly differentiated from other prisoners where their rank required it or when some benefit to the captor resulted. Detailed discussion will be found in Chapters 6 and 7; but something must be said here in defence of this position in order to obtain a hearing for what follows. Again, the proposition was obviously truer in 1000 than in 1300. In 1000, when most warfare in Europe was between neighbouring lords and most captives had indulged in the looting and burning that was a standard tactic of campaigning, the grounds for special treatment were far from clear. Death or enslavement were the penalties usually meted out to those caught on enemy territory. (Although enslavement was undoubtedly a form of captivity, I have excluded it from consideration in this book; on any interpretation, it was declining fast in western Europe by 1000.) 18

Introduction

9

To be defeated in a skirmish was the equivalent of condemnation in a court of law; it was a kind of ‘judgement of God’. In that sense, trial preceded punishment in war as well as in law. Both laymen and clergy accepted their equivalence; indeed, as Heinrich Fichtenau pointed out, Gerbert of Aurillac, the future Pope Sylvester II, declared that ‘A fight with weapons is more tolerable than a legal battle.’19 In practice war and law continued to be very closely connected throughout the twelfth century.20 Louis VI, surrounded by his entourage, heard complaints from the garrison of Corbeil against Hugh de Crécy in 1108 before he set out to besiege Hugh in his castle.21 When Count Hugo of Dagsburg ignored an imperial order, Frederick Barbarossa waged war against him in Alsace as a punishment for his crime.22 Similarly the newly knighted Count Baldwin of Hainault in 1168 set off to wreak terrible vengeance on the bandits who troubled the county and believed themselves invulnerable because they were related to great men.23 Whether the public assemblies which preceded these military campaigns should be thought of as trying the guilty parties in absentia or simply as declaring war on them cannot be determined. In all three cases the presumption must be that the rulers and their followers regarded the guilt of the accused parties as proved through notoriety. Since those who supported criminals were themselves guilty of crime, there was no basis for treating captured enemies mercifully. On the other hand, around 1100 some princes were beginning to recognize a hazy distinction between wars fought to avenge terrible deeds and wars generated by disputes in which each party had some justification for its actions. In the second case, loyal service to his lord by a captured knight ought not necessarily to be punished severely, as Charles the Good of Flanders famously attempted to convince Henry I of England: My lord king, you are doing something contrary to our customs in punishing by mutilation knights captured in war in the service of their lord.24

In important recent works, both John Gillingham and Matthew Strickland have pointed out that prisoners of war in this category were frequently allowed to go free in return for a ransom, a practice that emerged in Frankish lands in the course of the eleventh century.25 It is certainly true that the upper classes increasingly escaped the instant death that continued to be the lot of bowmen or

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Captivity and Imprisonment in Medieval Europe, 1000–1300

infantrymen caught by their enemies; and therefore that imprisonment until the ransom was paid became common. But this was only one form of the coercive incarceration practised widely by those in arms to extort money, a point that will be developed in Chapter 6. And, as Strickland points out, ‘The custom of taking opponents for ransom rather than slaying them was anything but obligatory, its operation often being subject to a complex blend of military, political and personal considerations.’26 It is true that by 1300 the rules had become much clearer, and the refusal to grant ransom to captive soldiers was seen as a breach of the code of conduct proper to a gentleman, even as an act of injustice. The French fury at the Flemish slaughter of knights on the battlefield of Courtrai in 1302 was a sign of changing attitudes. But it had taken a long time for the French themselves to subscribe to this opinion, and even by 1302 it was not evident to the Flemish, who had been instructed by their leaders not to take prisoners.27 In some societies there seems to have been resistance to distinguishing between those captured in war and other evil-doers. As late as the Rhenish–Frankish peace of 1179, it was laid down that an enemy who was captured must be brought at once before a competent judge.28 In other words, there remained the assumption in this part of the world that captives of any sort should face trial. The aim of this clause was presumably to prevent individuals either from taking disproportionate revenge on their own initiative or from capitalizing on their good fortune by ransoming their captives. Not everywhere was ransoming seen as a chivalric act.29 The ransomer was not necessarily the chief sufferer by the activities of the captive. Why should he be allowed to profit? From the theoretical point of view, the significant development of the twelfth century was the growing currency of the Roman lawinspired belief that the only just wars were public wars proclaimed by princes who had the authority to do so.30 Where this definition was accepted, it became possible to distinguish between the soldier who was doing his duty towards his sovereign and who was not therefore a criminal, and the soldier participating in his lord’s feuds or seeking revenge on his neighbour or promoting his own personal gain, who might deserve punishment for his offences. But even for Roman lawyers the number of wars that could be uncontroversially categorized as public in the twelfth century was infinitesimal. Only in the course of the thirteenth century did armies licensed by kings

Introduction

11

frequently take the field with the object of promoting what was claimed to be the public good. From then on, it became theoretically possible to plead that captivity in war deserved to be clearly differentiated from other imprisonments. Yet even in these circumstances there were factors that might reduce captured soldiers to criminals in the eyes of the victorious party. When Charles I of Anjou invaded the Regno in 1266, defeated King Manfred, the illegitimate son of the emperor Frederick II, and assumed the throne of the kingdom, he treated the surviving supporters of the Hohenstaufen (imperial family) generously, because he recognized that in displaying loyalty to their anointed king they had behaved properly within a (from his point of view) somewhat blinkered vision of their duty. When, however, 2 years later Corradin, the last of the Hohenstaufen, invaded the Regno with an army, Charles was severe in victory. Now he judged that those subjects of the Regno who had fought on Corradin’s side had done so in defiance of the obligation they owed to him, Charles, as their king; they were therefore guilty of treason.31 As Charles saw it, his own invasion of the Regno had been justified as a public war, but that of Corradin was naked aggression against properly constituted authority. In any case, even participation in a generally recognized public war where treason was not at issue did not automatically protect a defeated soldier. As Maurice Keen has reminded us for a later period of the middle ages: Soldiering in the age of chivalry was regarded as a Christian profession, not a public service. Though he took up arms in a public quarrel, a soldier still fought as an individual, and rights were acquired by and against him personally, and not against the side for which he fought.32

What was true for the fourteenth century was more obviously true for the period before wars were often recognized as public. In what follows, I have deliberately said rather little about England. This is partly because Ralph Pugh’s book Imprisonment in Medieval England 33 leaves little more to be said. But it is also because England was precocious in its development of punitive and custodial imprisonment. The royal claim to a monopoly of high criminal justice, which

12

Captivity and Imprisonment in Medieval Europe, 1000–1300

went back to the Anglo-Saxon period and was enunciated clearly in the reign of Henry I, meant that by the later twelfth century at the latest serious criminal cases in the shires had to await the arrival of royal justices to be heard. Consequently sheriffs were obliged to provide some means of detention for the duration for those accused who could not offer adequate bail.34 On the continent and in the rest of the British Isles criminal charges could normally be heard much more quickly, at least before the later thirteenth century. Only in the crown of Aragon35 and in the Regno36 was there an early move towards royal control of criminal justice, and in neither of these was there a system like that of the English eyres. The need to cover the countryside with a network of jails was therefore felt later and more patchily outside England. In one sense the relative absence of English input into this book is a deliberate distortion of the whole picture. On the other hand, the abundance of English documentary evidence relating to penal imprisonment from the later twelfth century onwards could easily swamp that from elsewhere, conferring a spurious uniformity on what was in fact a very diverse scene. Therefore I have chosen to concentrate on other material. There are considerable methodological problems in discussing a subject for which documentary evidence is rare before the thirteenth century, and patchy even then. There are, of course, occasional mentions of captivity in eleventh- or twelfth-century charters, and in the few statements of customary law that predate the thirteenth century. Although archaeological investigations are increasing in number, little of what has been discovered relates incontrovertibly to places of incarceration;37 very few rooms were specifically set aside or buildings erected just for the purpose of keeping prisoners, even as late as 1300. Therefore the main sources of information for the period before 1200 are miracle stories and chronicles, both forms of literary evidence that demand careful handling. For the eleventh and much of the twelfth centuries the authors of the surviving sources were usually monks, occasionally clerks, whose commonest motive in picking up their pens was to edify their readership. Behind the literal truth of what they said, they hoped to introduce their readers (usually composed of monks or of the entourages of bishops) to a richer moral truth that would enhance their understanding and assist them towards salvation. As chroniclers, authors of saints’ lives, or letter-writers, they described incidents in such a way as to underline a moral lesson, usually, when captivity was at issue, either that of the need for repentance or that of the appropriate

Introduction

13

punishment of the wicked. They were only occasionally eye-witnesses of the events they recounted, and frequently had no personal experience of the hectic life led by their lay contemporaries. From their sheltered perspective, they were inclined to view captives, bound by chains of iron, as men in the throes of deep repentance. 38 Penitents and prisoners were both nourished by ‘the bread of affliction and the water of distress’ (I Kings, ch 22, v 27). Consequently the images of captivity monkish authors presented should not always be taken literally. For example, Helmold in his Chronicle of the Slavs, described thus the terrible events of 1112 when Pope Paschal II and his cardinals were captured by Henry V: One might see cardinals dragged away naked, with cords about their necks, with hands tied behind their backs, and enormous troops of citizens being led away in chains.39

It would be a mistake to take this as based on information, secondhand or more distant, of what actually happened. Henry and his soldiers had no incentive to add ritual humiliation to the blow they were already inflicting on the cardinals; and had there been enormous troops of citizens to protect the Pope, the capture could not have been effected. Helmold’s words simply provide an image of the degradation of captivity (perhaps inspired by the kind of captivity he may well have seen, that of Slavs being taken off by slave-traders?) as a means of heightening the shock and horror of the Pope’s treatment by the emperor, while at the same time hinting that the event constituted a form of divine punishment for the sins of eminent churchmen. Cautious though the historian must be in dealing with some authors’ didactic embellishments, a few chroniclers, most notably the twelfth-century Norman monk Orderic Vitalis in his Ecclesiastical History, did provide solid information either about the circumstances of captivity, or about what they took to be the captors’ motives, based on the information that came to them from the many lay visitors to their houses or from those among their number who took the monastic habit as elderly men worn out after a life in arms. The barrier between monks and their relatives in the secular world was not necessarily so high as to deprive all they said of literal value. These nuggets are fundamental to any reconstruction of captivity in the period.

14

Captivity and Imprisonment in Medieval Europe, 1000–1300

Collections of miracle stories, the commonest source of evidence for the eleventh century, pose an obvious problem of interpretation for the historian. All the stories that described the freeing of prisoners by saints were modelled to a greater or lesser degree on the freeing of St Peter by the angel, as described in the Acts of the Apostles, Chapter 12, verses 7–10. 40 The scribes who wrote the stories down combined relative personal remoteness from the circumstances of what they related with an incentive to paint captors in as cruel a light as possible, in order to underline the charity of the saint. The prisons they described were reminiscent of that in which St Peter had found himself: the room was dark; the prisoners were securely chained (the chains brilliantly evoked by the mason who carved the roof of the late twelfth-century chancel in St Peter-in-the-East church in Oxford); outside there were doorkeepers, and beyond them an iron gate cutting off the prison from the rest of the world. Yet the images presented by medieval monks and clerks were not just the fruit of their reading of the Scriptures. Miracle stories were intended to have as wide a circulation as possible in the world beyond the monastic walls, in order to attract pilgrims to the shrines. The potential audience of laymen had not been trained, as a monastic audience would have been, to discount the literal meaning of what they heard in favour of a deeper moral meaning. In some cases the miracle described benefited residents within the neighbourhood of the saint’s church; in some, specific lords were mentioned, in others specific castles with jails.41 Where the audience for the story might be presumed to have, if anything, more precise knowledge of the local circumstances than the narrator himself, then he had reason to avoid gross inaccuracy. His picture of the victim’s sufferings may have been overdrawn, but having set his account in a scene familiar to his hearers, he was bound to give verisimilitude to his picture as a whole. Consequently where local detail is rich, the story can usually be relied on as a convincing portrayal of social conditions. Unfortunately the fashion for providing such detail did not last for long. By the twelfth century miraculous releases were usually said to have taken place far from the shrine itself, thereby reducing the value of the stories as evidence.42 The question of how historians should relate early written customary laws to the ‘reality’ of the society that produced them has spawned a huge literature. 43 The few in number and apparently haphazard compilations of the twelfth century, of which the Usatges of Barcelona

Introduction

15

are by far the most important for the subject of captivity, were not designed to describe all the customs that either did or should have operated in the particular area to which they were relevant at the point in time at which they were promulgated. Some clauses of the Usatges harked back to the Visigothic law codes of the seventh century, other practices described had probably been established in the eleventh century, some were part of peace legislation introduced in the course of the twelfth century, and others again were framed to be more aspirational than practical. But Ramon Berenguer IV (1131–62), who promulgated the original Usatges, and his successors were eventually able to enforce the acceptance of the code as the fundamental law of the crown of Aragon.44 Therefore, whatever the status of the clauses when first promulgated, they did eventually portray something approaching‘the real legal situation’. Rulers could not count on being able to imitate the kings of Aragon. In the late thirteenth century, King Alfonso X was unable to get his Siete Partidas accepted as the law of Castile, despite the fact that the compilation probably included much that was genuinely customary, because his aristocrats objected to the heavy regalian emphasis in the code.45 On the other hand, of the large quantity of statutes produced by Italian cities in the same century a substantial number appear to have been pragmatic responses to immediate problems, which reduces the problem of historical interpretation. And the private French compilations of custom produced in the thirteenth century were increasingly designed to be helpful to men actually engaged in legal business. Most famously, Philippe de Beaumanoir, in his Coutumes de Beauvaisis, completed in 1283, wrote to assist both the laymen and the growing band of professional lawyers who might find themselves in court in that area. Consequently at least some thirteenth-century compilations can be taken almost at face value, as a description of what generally happened. By the later twelfth and the thirteenth centuries, the authors of non-legal sources of information about captivity might still be monks, but more often were clerics or even laymen. These men wrote for more varied audiences, including the frequenters of royal courts and also rich townsmen. Chroniclers were joined by large numbers of writers who limited their efforts to the description of one historical theme or one great event, again for wide audiences. Their handling of the theme of captivity was less implicated in Scriptural exegesis than that of their predominantly monastic predecessors. The kind

16

Captivity and Imprisonment in Medieval Europe, 1000–1300

of didacticism they now favoured was compatible with expounding a more down-to-earth view of what actually happened in jails, only slightly tinged by literary flourishes. Using such writings as evidence becomes easier. But if this spares the historian from one contested zone of interpretation, he faces another: authors of late twelfth- and thirteenthcentury vernacular romans sometimes included imprisonment as one of the many trials faced by their heroes. To what extent they drew on the real to fire the imaginary has for some postmodern literary critics become a pointless question, because they deny the reality of the gulf between the ‘real’ and the ‘imaginary’ in written sources. More traditional historians cannot, however, avoid the problem as easily. It is clear that, as with earlier miracle stories, descriptions of captivity and jails were part of a stock of shared topoi, though now owing much less than in the eleventh century to Biblical exemplars. I have avoided drawing for evidence on purely imaginative literature before Chapter 11; but in my opinion there is sufficient overlap between these topoi and more sober sources to suggest that poets often drew on facts in their descriptions of captivity, and that historians can learn something from the telling detail or personal insight they occasionally offered. Despite some modern scepticism about the value of many judicial records, the documents concerning imprisonment that survive for this period are generally more straightforward to use than literary sources.46 Scribes in chanceries, producing formal instructions from rulers to their servants, indicated what those in authority thought to be the actual conditions of imprisonment. They may, of course, sometimes have been wrong. But chancery clerks were not likely to have been deliberately image-making on a subject that most medieval men preferred not to think about. Similarly, those who recorded the proceedings of the Parlement of Paris (the Olim), an extremely useful source, had little cause for invention. As the sources of information become more abundant in the thirteenth century, so cross-referencing in some cases becomes possible. For example, in the famous case of the imprisonment of King Enzo, illegitimate son of Frederick II, in Bologna from 1249 until his death in 1272, it is possible to compare some of the more colourful statements of chroniclers with the statutes produced by the town government.47 Although only three sets of statutes were produced during the period, and they naturally concerned themselves with the

Introduction

17

problem of guarding so eminent a prisoner, they make some chroniclers’ statements about the ease of access to the prisoner seem unlikely, while corroborating others about the growing financial burden felt by the town as the years went on. This example clearly illustrates the broad proposition here maintained, that it is possible to speak with much greater confidence about captivity and imprisonment in the thirteenth century than in the two centuries that preceded it. Given the problem with early sources, this attempt to study ‘prison before the prison’48 may well be foolhardy. The subject is clearly much broader and vaguer than that which faces historians who begin their work in the later middle ages, by which time the meaning and function of penal imprisonment was clear. Yet the confusing origins of modern incarceration deserve at least some brief investigation, if only as a contribution to understanding a few of the anomalies that grew up, some of which survived into the eighteenth century. And for the historian of the period 1000–1300, the concrete realities of captivity and imprisonment were altered by and intimately related to some of the most important developments of these 300 years. I hope that, by concentrating on a relatively small subject, I shall help to bring into focus aspects of a much broader sweep of the medieval landscape. My debt in this study to Michel Foucault’s Surveiller et punir. Naissance de la prison (Paris, 1975) is at best indirect, because ‘the state’ does not play a major role in my story until the thirteenth century, and then only in some places; and because until very shortly before 1300 there was no ‘theatre’ of punishment involved; in fact one of the greatest dangers a medieval prisoner faced was that of being left to waste away in darkness and oblivion. Nevertheless, Foucault’s book, by drawing attention to the treatment of prisoners and the conditions within prisons, has blazed a trail followed by large numbers of major historical studies,49 and this minor one. Foucault showed that, however great the variation in degree of hardship they faced, those who endured the miseries of incarceration could be studied as a group. He also insisted that the political tactics of those who imprisoned others were a crucial aspect of the whole investigation. While the kind of political tactics he had in mind were rather different from those that will be highlighted in this book, Foucault’s rule seems to me to be applicable to the period 1000–1300.

2 THE LATE ROMAN LEGACY IN WESTERN EUROPE

It is the argument of one very influential historical school led by Georges Duby and his disciples that, while western Europe remained true to the Roman legacy in social and to a lesser extent political matters throughout the first millennium, the year 1000 – or a decade or two later – ushered in a period of substantial change.1 The eleventh century was a revolutionary era, in which new solutions were sought to the problem of keeping law and order, new social institutions and distinctions began to evolve. On this interpretation, what had been done in Rome centuries before now lost its power to stimulate imitation. The alternative and older view, that the formative changes took place in the later ninth and tenth centuries as a result of the disintegration of the Carolingian empire,2 also reinforces the belief that by 1000 the Roman legacy was weak. This is not a proposition from which I would wish to dissent. Nevertheless, it would certainly be a mistake to imagine that, because there was little sign of it in 1000, the Roman legacy on imprisonment had died the death. It was merely comatose. There was in time to be a significant reawakening. In any case, the relative absence of literary sources from southern Europe in the early part of our period may lead us to underplay the importance of Rome. In eleventh-century charters, large numbers of men and women in southern Europe correctly and explicitly traced the customs by which they sorted out quarrels between themselves and divided out property, inheritances, dowries, or dowers, to Roman law, or to the Visigothic or Lombard 18

The Late Roman Legacy

19

versions of that law that had prevailed in the post-Roman period.3 It was the presumed antiquity of these customs that lent them the power, in some circumstances, to prevent feud, to achieve concord by arbitration. Although the sphere of private law was the overwhelming concern of the law cases that have come down to us, the reverence for Roman ways they betray makes it not unreasonable to suggest that in the early eleventh century some memories may have survived, especially in southern Europe, of late imperial uses of imprisonment. However that may be, in the course of the late eleventh and twelfth centuries, these uses were certainly brought back to mind, though only very gradually to practice, by the widespread study of surviving Roman texts, first in Italy and then in southern France and Spain. By the later thirteenth century, Roman law was having a decisive impact on the lives of prisoners in some parts of western Europe. Therefore, a brief survey of the main features of late Roman imprisonment is a necessary preliminary to our main topic. It is important to remember that the Roman empire was not marked by uniformity of institutions or ways of thought. Despite the relative copiousness of records, the administration below the top level was fluid in the extreme. One substantial reason for Roman success was the willingness of its ruling groups to assimilate the culture of Rome with those of the various provinces so that, although there were common features across the empire, there were also many local adaptations; if anything, the impact of local custom grew greater in the fourth and early fifth centuries. More obviously, the empire over which Justinian ruled was substantially different in important respects from that over which Augustus had first taken power. The following remarks can only offer a crude overall picture of the situation, a picture that derives in the main from the Theodosian code (fifth century) and the huge code of Justinian (sixth century). In the Roman empire the provincial governors who were responsible for judicial business were also responsible for overseeing conditions in prisons.4 In other words, prisons were integrated into the administration of the empire, and were intimately connected with the repression of crime. Justinian ordered the bishops to remind the governors of their duty to visit the prison every Sunday.5 Imprisonment was primarily custodial, that is to say of those accused of crimes and awaiting trial. By the third century, when the famous jurist Ulpian wrote, only those defendants whom the provincial governors decided should not be allowed bail or a military guard to keep them

20

Captivity and Imprisonment in Medieval Europe, 1000–1300

secure in their own houses were committed to prison. Since the governor was obliged to take that decision in the light of the accused’s social position and wealth as well as of the seriousness of the crime, prisoners were usually in practice men of the lower classes, the humiliores.6 It was the jailer’s duty to see that they were tried for the offences of which they had been accused, and to this end to clear the jails from time to time.7 The Emperor Constantine, in moderating the ferocity of conditions for those not yet condemned, declared that prison was too harsh for the innocent, but not sufficiently harsh for the guilty.8 Nevertheless the use of torture on the accused, and even on witnesses, in order to obtain evidence for submission at the trials, must have made a stay within the walls terrifying for any inmate. That executions frequently took place on the premises will have added to the sense of doom. And, despite the opposition of jurists to the notion of punitive detention, either incompetence on the part of governors or political embarrassment on the part of the imperial administration, arising from uncertainty as to how to handle a particular case, frequently meant that imprisonment did in practice become a punishment in itself.9 Roman jails were to be found in towns, not necessarily in the provincial capitals. In his treatise on architecture, Vitruvius said that the prison should be close to the forum, the curia, and other public places.10 It was conventionally constructed behind high walls with two chambers, the inner or lower of which was where all prisoners could be guarded at night, and where those held in deepest contempt by their jailers might be pushed into darkness without respite.11 Vivid images of this kind of building were transferred to medieval men and women, both in the descriptions of the imprisonments of Saints Peter and Paul in the Acts of the Apostles, and in the Acts of the Christian Martyrs, some of which made their way into the liturgy in the late antique period. In particular, the stories of the African martyrs, Saints Perpetua, Montanus and Lucius, emphasized the heaviness of the gate that shut behind the captives as they were thrust into the prison, the darkness, the heat, the hunger and thirst of prison, the presence of soldiers demanding money, the chains that bound the Christians, and the torments within.12 In the post-Roman world, the law codes of the Visigothic and Lombard kings indicate the survival of aspects of the Roman prison system, though subject to some alteration. The Visigothic codes of

The Late Roman Legacy

21

the late sixth and seventh centuries took the existence of prisons for granted, making special arrangements to protect society by imprisoning sorcerers and in some circumstances those who defaulted when summoned to court in a dispute; and also keeping convicted criminals in prison until they had paid the necessary compensation for their offences. Prisoners were charged a daily rate to cover the expenses of their stay.13 In early eighth-century Lombard Italy, King Liudprand required his dukes to have underground prisons in their castles for the detention of convicted thieves.14 These codes continued to influence legal proceedings for a long time after the peoples for whom they were named had ceased to rule. In Italy, both the Carolingian and the Ottonian rulers added to the Lombard law. 15 The extended codes were treated as statements of custom well into the eleventh century, and in Apulia beyond then. At the same time, it has been argued, students at Pavia began to gloss and copy a revised version of the Lombard laws.16 The reacquaintance with the barbarian code apparently predated the renewed interest in Justinian’s codex, which grew up in Bologna before the end of the eleventh century or in the early years of the twelfth, and which gradually transformed legal thinking in the Mediterranean parts of Europe.17 Although no such clear link can be established for the text of the Visigothic laws, individual clauses came to be very influential in the law courts of southern France and northern Spain in the eleventh and twelfth centuries. For northern European practices of incarceration the impact of Carolingian legal reforms was more important initially than the study of Roman law. In the capitulary of Aix of 802–3, Charlemagne laid down that each count should keep a prison in his county, and that judges and vicarii (local administrators) should have gallows.18 This showed that the clear connection between prisons and administrative districts evident in Roman times had survived. The implication of the clause, which allowed minor officials to have gallows while only counts had prisons, was that imprisonment was relatively rare. This is also suggested by the instructions issued to the royal missi (special envoys sent to inspect the operation of local administration) in the spring of 802: those who had killed kinsmen (the worst kind of murder) and then refused to accept the punishment prescribed by the competent judges, should be kept ‘in such custody that they will be safe and will not pollute the rest of the people, until such time as they are brought to our presence’.19 In other words, custodial

22

Captivity and Imprisonment in Medieval Europe, 1000–1300

imprisonment was appropriate for those whose defiance of justice was so extreme that they could only be dealt with by the emperor himself and therefore had to be held until this was possible. Most historians of Anglo-Saxon England nowadays believe that that country was deeply influenced by Carolingian practices, though often somewhat tardy in adopting them.20 There were similarities between the arrangements outlined in the Aix capitulary and the much later appearance of county jails under sheriffs in England, and also between the 802 announcement that extremely serious crimes ought to be punished by the emperor alone and the subsequent English royal claim to the same right. But there is more dispute about the extent to which the troubles that faced later Carolingian monarchs prevented Charlemagne’s reforms from taking root throughout Germany and France.21 As has already been remarked, towards the end of the eleventh century northern Italy, and especially Pavia and Bologna, became homes to the study of written law. This study had a direct influence in sharpening what had hithertofore been a very hazy distinction between the prosecution of crimes and other forms of legal action.22 Though the effect of this conceptual advance was fairly slow to be felt in practical terms, it had by 1300 considerably strengthened the linkage in men’s minds between prisons and those accused of crime. In conformity with Roman law, remand rather than punishment was conceived as central to this. Ulpian’s words: ‘Prisons ought to be employed for confining men, not for punishing them,’23 continued to hold sway in the minds of lawyers, though by no means always in the practice of secular courts. Similarly the reading of Justinian’s codex strengthened the association between judicial authority over an administrative area and the right to possess a jail. Some Roman lawyers of the high middle ages took note of the late imperial legislation designed to ensure that prisons should be periodically cleared to bring the inmates for trial before the appropriate legal tribunals.24 Others tightened the Roman law prohibition on imprisoning those who could give bail.25 Less humanely, the scholars found in their books justification for tough penalties, including death or mutilation, for theft or homicide, and also for the application of torture to elicit evidence, or to make men incriminate themselves. It would probably be wrong to suggest that such methods were unknown in western Europe before the intellectuals rediscovered their late antique use; or that pressure to employ them might not

The Late Roman Legacy

23

have occurred without knowledge of Roman Law. But there is no evidence that they were systematically used by judges or jailers before the revival of Roman law studies got under way.26 In some places, memories of the classical past were apparently kept alive by means other than the written word. In ancient Rome, for instance, Servius Tullius had built on the Capitoline hill the state prison known as the Tullianum. Although this building was restored in the middle of the twelfth century as a palace for the Senate, prisons on the hill, to which Saba Malaspina drew attention, were still maintained in the thirteenth century.27 Elsewhere the siting of prisons in gate-houses of town walls in the middle ages may well hark back to late imperial rebuilding schemes. When many town walls were erected or rebuilt in the fourth and fifth centuries in response to barbarian pressure, rooms in the gate houses were probably earmarked as suitable for the detention of enemy soldiers caught in time of siege. That this became common across Europe in later times may, of course, owe as much to convenience as to conservatism. All that has been said about the Roman legacy thus far has underlined the connection between prisons, crime and administrative power. But this was not the sole area of influence. Although we know very little about them, there is evidence for the existence of private prisons in the later Roman empire. Justinian forbade men to lock up others on their own premises, threatening the guilty party with a period of detention in a public jail to match exactly in length the sufferings of his victim.28 He also ordered bishops to release captives from private prisons.29 How widespread such imprisonment was – presumably in some room or cupboard of a private house – we cannot know. However, kidnapping must always have been a difficult offence to prevent because, from the captor’s perspective it was a highly effective form of coercion, and from the victim’s a humiliation and, unless he was completely innocent, not a matter to trumpet aloud. These factors, at least as much as any conscious imitation of the Roman past, ensured that the imprisonment of one man by his neighbour remained a fairly common feature of life in eleventhcentury Europe. More significant for its impact on later generations was the Roman paterfamilias’ right to discipline recalcitrant slaves or even his own relations by assigning them to forced labour in a workshop (ergastulum) on his premises. This differed from a private prison in that its owner could confine in it only a narrow group of people over whom he had

24

Captivity and Imprisonment in Medieval Europe, 1000–1300

clearly defined rights. Conditions within the workshop must have been rather better than those that prevailed in jails. Its function was punitive and corrective; its inmates expected to be released at a specific time from behind its walls, and while within had to be treated reasonably in order to be able to continue working. This kind of detention probably became commoner as the law limited the rights of life and death over slaves once enjoyed by their owners. Very little indeed is known about such places, which are only mentioned in literary sources;30 but they are of clear interest to any historian of subsequent imprisonment. There can be no question but that eleventh-century aristocrats were permitted to punish at their own discretion their serfs (those men and women regarded as bound to provide labour for their lords).31 The disappearance of slavery (even the most determined upholders of its survival do not think it lasted much after 1000 in Christian southern Europe,32 and only a little longer in England and Scandinavia) 33 and the settlement of ex-slaves on the land may have facilitated the extension of a lord’s power of punishment to a larger group of dependent peasants. An early peace association of 1083 excluded from its general prohibitions on violence three forms of corporal punishment, the first of which was that of a lord disciplining his serf.34 A late eleventh-century missal from Volturno contained the prayer: ‘Moderate lords in the discipline of their servants.’35 This aristocratic right probably continued across the centuries from the late Roman empire, though this cannot be proved.36 The connection between corporal punishment and confinement is usually close, and medieval lords, like their classical predecessors, operated under the constraint of punishing in such a fashion as to avoid injuring permanently those workers on whose labour they depended. Away from the lay world, ergastula undoubtedly survived within monasticism. St Benedict of Nursia in his sixth-century Rule laid down provisions for the social isolation of a monk who had sinned so gravely as to deserve excommunication.37 By the second half of the seventh century, such isolation was being secured in a cella obscura,38 later called ergastulum. At the disposal of the abbot, the ergastulum as it evolved apparently provided detention rather than the exaction of forced labour, though St Benedict had assumed that the excommunicate monk would continue to perform the work he habitually did. In the high middle ages, the savage rights of the Roman slave owner

The Late Roman Legacy

25

were radically moderated in the monasticism of western Europe. Yet the vocabulary of the ancient world remained remarkably persistent in use. Jocelin of Brakelond, for example, in his colourful chronicle of life in the abbey of Bury St Edmunds in the second half of the twelfth century, said: We are called barrators (men who vexatiously incite others to litigation) if we gainsay the abbot in anything, whether justly or unjustly, and sometimes we are condemned for lese-majesty either to imprisonment or to exile.39

As we shall see in Chapter 10, monastic imprisonment came, in the course of the twelfth century, to offer a model for the just punishment of secular clerics who had seriously violated either canon or criminal law, and also for heretical laymen. Among the Franks of the Merovingian and Carolingian periods, the prison within the monastic walls slowly spread its shadow. Monasteries came to be perceived by powerful laymen as suitable places in which to detain political prisoners too important to be done to death. So Charlemagne forced his cousin Duke Tassilo of Bavaria to accept the tonsure and retire to a monastery, he treated his rebellious son Pepin the Hunchback likewise, and Louis the Pious followed the same policy with a number of opponents. The practice was continued by the Ottonians. For example, Thietmar of Merseberg, describing the treatment meted out to three men who had plotted against Henry II, recorded that one escaped from custody, the second was sent to the great monastery of Fulda, and the third was held for a long time in a castle.40 Here the monastery and the castle represented the contrast between the traditional and the more innovative places of custody. Because the practice of forcing defeated political opponents to become monks was disapproved of by the ecclesiastical reformers of the later eleventh century, it died out fairly rapidly. Whereas a certain element of continuity can be traced in monasteries between late Roman confinement and the practices of abbots in around 1000, in the lay world the Roman legacy had apparently disappeared almost entirely by that date. The basic connection between prisons and the operation of the criminal law so obvious in imperial Rome seemed to have vanished. There was little need for prisons for legal purposes. Even in England, where royal power was strong and could on occasion be wielded against criminals some distance from

26

Captivity and Imprisonment in Medieval Europe, 1000–1300

its main centres of operation, custody of those accused of crime was rarely necessary. Minor crime was normally dealt with locally in the hundred court, and justice was summary. In some cases those accused of serious injuries or crimes against another party might have to wait for the judgement of the shire court; then, the defendant’s neighbours, or sometimes his lord, were held responsible for producing him in court if he was not of sufficient social rank to stand bail for himself. They therefore had an incentive to pursue him if he attempted to flee before the trial; he, on the other hand, was deterred from flight by the problem of finding a new place to settle without friends, relatives or a lord to help him.41 If the accused denied the accusation made against him, he was required to produce enough oath-helpers to proclaim his good character and therefore his innocence; if he could not do that, then an ordeal could be swiftly arranged to decide the issue. Since most crimes were punished by exile or outlawry, or could be compensated for by payment to the victim or his family (the exception being treason to one’s lord which was often a capital offence), punitive imprisonment was almost unknown.42 Those who could not afford to pay appropriate compensation for the evils they committed might be blinded or maimed or even enslaved (though the last fate was becoming rarer). Therefore on the few occasions on which incarceration of those accused or convicted of crime did occur around 1000, it was on an ad hoc basis. Elsewhere in western Europe, the situation was similar. Justice was summarily dispensed by bishops, counts, viscounts, vicarii, or abbots of certain privileged monasteries, as indeed it continued to be in many places long after 1000. In a world in which most people lived in hamlets or villages, knew their neighbours well, only rarely met strangers or travellers, and looked to their neighbouring lords for chastisement of offenders and solutions to their quarrels, there was usually no occasion for delay in reaching a verdict or imposing a sentence in criminal matters. As late as the second half of the thirteenth century, in an agreement about rights of high justice in a particular village between the abbot of Boisgroland and the lord of Poireaux, it was laid down that a man accused of a crime that deserved the death penalty, mutilation or exile, should be brought before the abbot first for judgement, then if found guilty handed over by him to the lord of Poireaux, who was to impose the sentence and carry it out before dusk on the day on which the accused had been arrested, if that was at all possible.43 In this area, the speed of the

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proceedings meant that arrangements for custody before trial remained unnecessary. But by 1300 this was no longer so in many other parts of Christendom. In most of continental Europe in the later tenth century even important men or those accused of very shocking crimes were seldom judged and sentenced in infrequently held assemblies or by the representatives of distant rulers. Those cited to appear at the next hearing of a local court had little incentive to flee unless they believed their guilt self-evident, because attempting to start a new life elsewhere, with neither lord nor kin to protect them, was a distinctly uninviting prospect. The processes of justice were swift and informal, usually involving the payment of compensation by the guilty party to the victim, or in serious cases the pronouncement of a sentence of banishment, mutilation, or possibly death if treason was involved. A man’s reputation among his neighbours was crucial to the verdict. Records were not kept because once punishment had been inflicted it was assumed that the matter was over. Unlike property transactions, which could cause trouble for several generations, crime apparently rapidly lost its interest to all parties. This was probably because the system was geared to favouring those of high social standing, while exacting harsh retribution from the poor and friendless who would not dare to complain subsequently. In this respect the end of the first millennium resembled most of human history. Therefore the Roman legacy of imprisonment appeared by 1000 to have sunk without trace in a world very different from that in which the Roman customs had been formulated. Where the chroniclers did talk of captivity around 1000, they revealed it as a predominantly coercive measure, from which those travelling from home or participating in conflict, whether in war or political battle, were particularly prone to suffer. There is evidence of the frequent seizure of rich men far from home by outlaws or robbers who intended to force them to pay for their release. The Saracens who captured Mayeul, abbot of Cluny, at some time early in his abbacy (954–994), were seen by Raoul Glaber as bandits; their temerity in thus manhandling one of the most eminent churchmen of western Europe brought against them an offensive that drove them from La Gard-Freinet, their last hold on the western Mediterranean, in 972.44 But their way of filling their coffers was far from unique in the period; indeed, in comparison with some other bandits, they treated

28

Captivity and Imprisonment in Medieval Europe, 1000–1300

their captives with deference. And most other victims of kidnap did not enjoy so sweet a revenge. Despite determined efforts to make travelling less hazardous for clerics or merchants, capturing men to obtain ransoms proved too lucrative to be easily stamped out of western Europe. Then there was a small but significant category of important people who were captured by their enemies in warfare. Under Visigothic law in the seventh century, it had been laid down that such prisoners as could not afford to ransom themselves would be enslaved.45 By the eleventh century, the option of enslavement, at least for Christians, was becoming unacceptable. But that did not mean that prisoners of this type were regarded as guiltless; they had, after all, been attempting to harm their enemies. For the most part they would either be slaughtered or set free on terms. Captivity was too expensive and presented too many practical difficulties to be lightly entered into. Exceptions to this rule might occur where the captives were of sufficient importance to be thought capable of coercing their own allies into compromising or even into accepting the terms the victorious party sought; then the expense was worth accepting. So Pandulf, prince of Capua, was sent as a prisoner to Constantinople when he was caught while besieging Byzantine territory in southern Italy in 968. His intercession by messenger with the emperor Otto I was an important factor in persuading Otto to make peace with the Byzantine emperor John Tzimiskes in 969.46 Another common reason for imprisoning those captured in war was to avoid stirring up hatred among important people. When King Lothaire of West Francia, engaging in his second attempt to conquer Lotharingia in 985, found himself in possession of the duchess of Upper Lotharingia and her young son, he could not free them because they would incite opposition to him throughout the duchy, but nor could he kill them without facing the profound hostility of Hugh, duke of the Franks, whose sister the duchess was.47 The only way out of the dilemma was to keep the pair captive. Lothaire’s death the following year set them free, because the new king, Louis V, abandoned his father’s Lotharingian policy and therefore saw no bar to releasing them. As these two examples show, tenth-century prisoners of war could not be distinguished from political prisoners. But open war was not a necessary condition for the capture of political opponents; guile or ambush could be used against them. Once in their enemy’s hands

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they could then either be coerced into accepting conditions they would otherwise have rejected, or could be kept off the political stage, at least temporarily. In the crisis that followed on the election of Hugh Capet to the throne of West Francia in 987, two distinguished bishops, Arnoul, brother of the recently deceased King Louis V, whom Hugh agreed to elect to the archbishopric of Rheims to reconcile him to the Capetian succession, and Adalbéron, bishop of Laon, suffered imprisonment for short periods. In their releases they were more fortunate than the Carolingian candidate for the throne, Charles of Lorraine, who was captured in 991 and imprisoned with his wife and children; he seems to have died in captivity, probably within a few months. 48 His wife and children passed into oblivion. There were sound reasons for the relative rarity of captivity as a means of attempting to remove a major player from the political stage. In the first place, the imprisonment of a distinguished figure always caused an outcry. According to the chronicler Richer of Reims (whose stories, though overdramatized, usually had a kernel of truth in them), when Charles of Lorraine was handed over to King Hugh, the King was advised to delay his decision on how to treat the prisoner until he had had time to weigh up the number and rank of those who expressed their anger on hearing the news. 49 As it happened, public opinion did not on this occasion deter Hugh from holding Charles, as it had deterred his grandfather Hugh, duke of the Franks, from keeping King Louis IV under lock and key in 945. But clerical censure of the imprisonment of archbishop Arnoul was more effective.50 Hugh was obliged to release him despite his treasonable support for Charles of Lorraine. Public outcry was easily engineered against the captivity of the great. Hroswitha of Gandersheim, describing the capture of Otto I’s younger brother Henry by his half-brother Thangmar and Ebehard, duke of the Franks, told of Ebehard leading Henry, ‘binding with cruel chains his white hands better suited for adornment’.51 As she saw it, it was the chaining of a royal relative that justified Otto in his subsequent hanging of the perpetrators (in fact they were not hanged). While chains were probably regarded as suitable for most people, it is apparent that they were perceived as demeaning to those of high status. Consequently captors who were not prepared to flout conventions as Ebehard was alleged to have done faced the dilemma that their important political prisoners might easily escape, as for example Adalbéron of Laon did from his first imprisonment

30

Captivity and Imprisonment in Medieval Europe, 1000–1300

by Charles of Lorraine and his sympathizers in Laon in 988. The bishop had been kept in a locked upper room (probably in a tower in the city wall), but shinned down a rope from the window, and rode off swiftly on horseback.52 Whether because he was a cleric or on account of his high rank, he had apparently not suffered any physical restraint in his cell. Aristocratic dwellings of the early tenth century, especially those in northern Europe, were not designed to be solid and lasting. The great families were itinerant, stopping in turn at their estates spread over vast tracts of land. Their residences on these estates were usually halls constructed of timber or wattle and daub, often with a tower, and surrounded by earthworks with one gate.53 Although lords might, after victory in battle, take pride in riding through their lands leading their prisoners before them, they had neither the lifestyle nor the accommodation to keep them safely for any length of time. Nor could they yet look to their social inferiors to provide greater security. Only bishops, charged with the defence of their walled diocesan towns, could occasionally offer places suitable for detention. So Otto II commended his cousin Henry of Bavaria to the surveillance of bishop Folcmar of Utrecht after Henry had been captured in an attempt to secure the throne for himself. The fortress of the archbishop of Magdeburg at Giebichenstein must have been unusually defensible, because it was frequently used for this purpose.54 And in West Francia, King Henry I had the count of Bar-sur-Seine held for him by the bishop of Noyon in a tower beside the towngate in the ancient town.55 Where no such places offered themselves, prisoners could not be easily kept. Because captivity had a primarily coercive aim, it was hard to distinguish a prisoner of war from a hostage, and in some circumstances a hostage from an honoured guest. Dudo of St Quentin, writing probably in the first decade of the eleventh century, told a story about the early life of Duke Richard I of Normandy (942–996) that is unlikely to be totally accurate, yet reveals the ambiguous position of many young lords sent to the courts of neighbouring great men in order to learn warfare and polished manners. Dudo declared that, after the murder of Richard’s father Duke William at the hands of Count Arnoul of Flanders, King Louis IV captured the young boy. The Normans raged indignantly at the royal act, while the King maintained that his aim had been to offer an education worthy of his station to the future prince. 56 Though the incident of the royal

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abduction, followed by recapture by a faithful Norman noble was probably dramatized by Dudo, it does underline the vulnerability of aristocratic boys sent to be brought up at the courts of their lords; while they stood to gain influence and friendships there that could much advance their later careers, yet they were at the mercy of their hosts should bad feeling arise between them and their own families. In such a case, they would find their freedom of movement distinctly limited. According to Cosmas of Prague, in 1001 Duke Miesco of Poland succeeded in bribing the Emperor Henry II to imprison the son of Duke Boleslas who was staying with him. Though the young man was not kept for long, Henry’s action certainly soured relations between himself and Boleslas. 57 One instance of custodial imprisonment before trial serves to demonstrate just how unusual and unsatisfactory it was in the early eleventh century: Wipo in his Deeds of Conrad II told of the emperor’s determined pursuit of Thasselgard, who had committed many crimes in Italy in his predecessor’s reign. When Conrad heard that his soldiers had succeeded in capturing Thasselgard as he moved between two of his castles, the emperor was so afraid that the criminal might escape yet again that he ‘traversed almost one hundred Latin miles in a day and a night’ to get there to hold the trial and secure his condemnation.58 In this case, Conrad had a strong personal commitment to put an end to Thasselgard’s career, which made him insist on pronouncing the sentence of death himself. But in order to do so, he had to take exceptional steps. He could not count on secure detention, even for so notorious an enemy as Thasselgard. To sum up, imprisonment around the year 1000 was rare and usually of short duration when it occurred. The sources speak almost exclusively of captives of high status who were kept for financial or political motives. The problems and expense of keeping them secure were considerable. Although our dependence on chronicles for references clearly biases the information in favour of the aristocracy, what we know of tenth-century legal practices argues for the unimportance of imprisonment in the criminal process. Peasants or footsoldiers got short shrift, whether in war or in judicial hearings; the fate of their social superiors depended on the influence of those they could bring to their support.

3 THE MEANS OF DETENTION IN THE HIGH MIDDLE AGES

In the course of the eleventh century, mentions of imprisonment creep back into the sources. In part this is because the number and variety of writings available to historians increase, if by no means as dramatically as they will do during the twelfth and thirteenth centuries. Miracle stories and charters now yield nuggets of information in addition to those from chronicles; and although these nuggets are scattered geographically and often difficult to interpret, they do shed some rays of light on the fate of captives. But it is not just a matter of sources. The other reason for the increase in information is the building of more permanent and better-defended residences for aristocrats, the castles, which permitted easier and rather cheaper detention of peasants or knights. Consequently there was a real, not just a perceived, growth in the number of prisoners. The earliest descriptions of eleventh-century means of detention describe them in a very Hobbesian way as constraints on movement. They suggest that the simplest form of captivity consisted in chaining men to a beam or other heavy object which could not easily be moved. For example, the viscount of Limoges put a serf of Noblat into a heavy neck collar and chained it to one of the posts that supported the tower from which the viscount dominated his neighbourhood.1 The neck collar may have been a form of wooden stocks; but if so, the viscount relied on a chain to prevent the serf from absconding rather than putting his victim’s arms through holes beside his neck. The author of the story of the serf’s miraculous release regarded the 32

The Means of Detention in the High Middle Ages

33

weight of the collar and the fact that the victim was left out of doors, exposed to the hazards of the weather, as the particular cruelties of his treatment. How long the viscount expected him to be there is not stated; perhaps only a day. If the punishment was intended to bring on him the ridicule of his fellow villagers, as stocks in later periods were, in this instance it failed. Instead he became the fortunate recipient of the saint’s intervention. In this case, the victim was intended to be kept where he was put. But neck collars could also be used in moving prisoners, taking them to jail or elsewhere. The complaint of the villagers of Corro in Catalonia in the early twelfth century was that Pere de Bell-lloc had broken into the village, arrested men, and dragged them off, ‘often bound by the throat’, to prison.2 When the Siete Partidas law collection for Castile spoke of imprisonment for the duration of the campaign for those who, when fighting against the Moors, refused to follow orders or fomented discord, or three times recklessly consumed the army’s provisions, what was envisaged was probably some form of neck collar.3 The offenders will in any case have been secured in some way that forced them to keep moving along with the soldiers. Neck collars could also be used in confined spaces. According to the miracles of St Foy, the son of the castellan of Conques was thrown into a dark hovel and then confined by a neck collar which his captors fastened to a large corn store behind him.4 In this case, as with the serf of Noblat, the victim’s fear of choking or suffocating was dwelt upon by the narrator. While neck collars were almost impossible to escape from without divine aid, their cruelty was only too obvious, which may explain why they are less often mentioned in sources later than the eleventh century. The same is true of tight circles of iron, bound around different parts of the anatomy, which were regarded as standard for captives in eleventh-century Flanders, but not frequently found later.5 Shackles, which permitted movement although slowly, might be used as an alternative to neck collars, as we have seen in the story of the large number of shackled and hungry men who besought Odo’s help to pay their ransoms to the rebellious castellan of Tournai.6 They might also be used in prison, though there heavy leg-irons were more common. Metal rings around the wrist similarly chained to the beam or full manacles prevented the prisoner from using his hands to free himself. Both leg-irons and manacles were fastened by bolts, which sometimes proved to be the weak spot in the armoury, breaking or

34

Captivity and Imprisonment in Medieval Europe, 1000–1300

falling apart under such pressure as the prisoner could exert against them. Throughout the high middle ages, a prisoner of less than aristocratic status could expect to be fettered if imprisoned. Documentary evidence demonstrates the trouble lords took to see that chains of all sorts were kept in ready supply. In Henry II’s castle at Caen a house was provided for the blacksmith who made the fetters for his lord’s prisoners,7 a sign that the work involved was regular and important. In 1273 Charles of Anjou had hastily to order a forge to be established at Canosa, because the castellan complained that he had no fetters for the safe-keeping of prisoners.8 The comparatively rare high aristocrat who found himself immured in prison would normally avoid chains. But instances of chaining of knights in the eleventh and twelfth centuries are too frequent to argue for their exemption9 (in some places knights were only beginning their social ascent into the aristocracy in the twelfth century).10 Nor could status guard lords against such a fate where the accusation against them was serious. A charge of treason was enough (according to Matthew Paris) to bind in irons Frederick II’s famous servant Piero della Vigna when he was captured at Cremona in 1249.11 In the course of the eleventh century, chains came to be reinforced by locks or barred doors, with the re-emergence of rooms that could, when needed, serve the function of prisons. All over Europe, though at somewhat different times depending on area, better fortified and more permanent aristocratic dwellings began to appear. As great families restricted the area within which they itinerated and began to put down roots in particular neighbourhoods, they naturally decided to invest more in safer residences, which came over time to symbolize their lordship over the area. Georges Duby first drew attention to this phenomenon in La société aux xie et xiie siècles dans la région mâconnaise,12 a groundbreaking book in which he charted ‘the rise of the castellans’. Working from the charters of the great abbey of Cluny, he argued that the very early years of the eleventh century saw in the Mâconnais the decline of comital power, the loss of authority by vicecomites, along with the disappearance of the old public courts over which they had presided, and their replacement by castellans, resident in new, fortified dwellings, holding courts for their own localities, in which they judged indifferently the cases of freemen and serfs. In other words, the old administrative and legal system that had regulated the lives of free men gave way quite suddenly to a newer,

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and in his view more effective, form of local control in which physical force played a more dominant role than it had done in the past, and in which freemen were subjected to treatment hitherto reserved for serfs. The building of castles was crucial to this change. There has recently been much dispute about this model, both in itself and in its application to areas other than the Mâconnais. 13 Most of the arguments are not relevant to the subject of this chapter, though we shall return to them in Chapter 4. But Duby’s work has focused attention on castle-building all over western Europe in the decades after 1000, on possible links between what can be deduced from charters and the fragmentary archaeological remains, and on a style of building that once again facilitated imprisonment. We are also indebted to Duby for a view of what he initially called ‘feudal lordship’, the power wielded by the lords of these castles, a power based on military force and on the exaction from the local population of what came to be called ‘evil customs’, malae consuetudines. On these there is a large literature, historical opinion being polarized between those who, like E. Magnou-Nortier, regard malae consuetudines as a hostile name for old-established rights, and those who, like T.N. Bisson, see them as imaginative new forms of extortion. 14 Their importance for our subject is that, if new, these exactions offer some explanation for the apparent growth in detention by lords of their peasants: if the lower classes were increasingly burdened by debts, whether of money or of goods, their creditors, the lords, would prefer to use temporary captivity as a means of coercing them into paying, rather than whipping or other physical punishment which might impair their ability to work and thus postpone payment. That castles initially differed radically in architecture from the aristocratic dwellings that preceded them cannot be demonstrated. But they did symbolize lordship more effectively, dominating the landscape with their high towers and creating the illusion of impregnability by their surrounding earthwork fortifications. Over time, castles evolved from simple wooden towers on mottes surrounded by earthworks topped by palisades, to early twelfth-century stone donjons with baileys surrounded by earthworks, and then in the later twelfth and thirteenth centuries into large-scale stone residences with massive stone curtain walls. Across the same period, the quality of the stone work improved markedly, increasing the impression of permanence. As castles grew more expensive to build, so in general they declined in number. Despite variations in timescale over different parts of

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Captivity and Imprisonment in Medieval Europe, 1000–1300

western Europe (new castles were still being erected in fairly large numbers in thirteenth-century Germany), there was little major divergence from this overall pattern. At each stage of the castle’s evolution the builders designed them to withstand the siege weapons available at that time, and also to combine the roles of intimidating the surrounding populace and offering them protection against enemies from elsewhere.15 It is not, therefore, particularly surprising that much of the literary evidence for imprisonment emerges just at the time when castles were being built across southern France, the area which seems to have pioneered the defended dwelling for individual lords in the late tenth and early eleventh centuries.16 If a central reason for the rarity of captivity before the millennium was the absence of anywhere suitable to keep prisoners securely for any length of time, the development of more permanent and well-defended structures may in itself provide an explanation for an increase in the habit of seizing men, whether defaulting dependants or defenceless strangers, in order to coerce them into paying for their release. By the second or third decade of the eleventh century, archaeological investigations have shown that the towers and simple castles built on a model commonly found in France had main entrances that opened to the first floor, leaving the ground floor for storage or other purposes.17 Archaeological findings here fit with the information taken from miracle stories, our chief literary evidence for imprisonment in this period. The simplest type of dungeon from which St Leonard or St Foy led out the captives was a deep hole, freshly dug for the purpose, under the lord’s tower.18 (Here it is appropriate to remember that the word ‘jail’ derives from the Latin caveola, a hollow, cavity, den, cage or coop.) 19 In better-built structures prisoners were kept in an already existing storeroom, either below or on the ground floor of the tower.20 Where a castle was erected on a rocky eminence, as was very common, digging below the foundations was not possible; so the ground floor was constructed as if it were a cell. Access was only through a hole in the floor above; there were no windows and only an air slit high up. The prisoner was thrown down the hole to endure the darkness; the hole was then covered by a wooden trapdoor, on which the guards slept at night. In the day time it might be kept shut by rolling a huge boulder on to it. At the castle of Conques, the prison floor was so far below the trapdoor that it was necessary to shin up a pole to escape.21

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Yet the poor quality of eleventh-century building (in one case a prisoner escaped by tunnelling under the door,22 in another he took advantage of the absence of mortar between the stones of the tower to pull them apart and push his way out, 23 in a third the whole tower in which he had been imprisoned collapsed just after his escape 24), forced the guards still to rely principally on the prisoner’s chains to prevent him from attempting to flee. The frequent miraculous bursting asunder of chains or the equally miraculous discovery that they had become as malleable as wax suggests that the blacksmith’s craft, like that of the builder, left room for substantial improvement. 25 The dungeon in the foundations of the castle survived throughout the high middle ages and for much longer. In some later castles, it was sited on the ground floor of one of the towers of the gateway, and accessible only from the first floor.26 Elsewhere it was in the keep.27 The notorious late medieval Bottle Dungeon in St Andrews castle, with its terrible history, survives to demonstrate to the modern tourist the appalling cruelty of detention in an underground hole. The permanent blindness which afflicted the Bottle Dungeon’s inmates after a period of incarceration was presumably a fate shared by others kept for long periods in similar conditions. Not all eleventh-century lords’ castles were based on the pattern described above; and not all that were had dungeons. Where storage space at ground level was needed, an obvious alternative was to keep prisoners at the top of the tower, from which escape would be difficult. In one eleventh-century case, the prison of Castelpers in the Rouergue was simply a room at the top of the tower beside the lord’s bedroom, but overlooking (perhaps overhanging?) the rest of the castle.28 It had no window, so the prisoner whom St Foy chose to help had to find his way into the lord’s room next door before he could climb down, first the tower and then the very steep cliff side, then run away, still encumbered by his chains. That towers like this were no figments of the hagiographer’s imagination can be shown by later references in more sober works. For example, Suger, the famous royal counsellor and abbot of St Denis from 1122 to 1151, described how Anselm de Garlande, castellan of Corbeil, was captured by Hugh de Crécy and imprisoned in the tower of his own castle, a particularly humiliating change of fortune.29 Similarly Louis VII ordered a captured aristocrat to be held in the tower of Gournay.30 The absence of windows in some tower rooms is attested also by John of Marmoutier, writing c. 1180 but recording events of the

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1120s, who said of some Poitevin knights kept by the seneschal Josselin at the insistence of his lord Geoffrey le Bel, count of Anjou, that they were chained at the top of the tower in a dark room.31 Their sufferings will have been almost as bad as those of the inmates of dungeons. On the other hand, some prisoners who did have windows in their towers may have regretted it. Robert of Torigny described the formidable tower at Henry I’s new castle in Rouen, with its window called ‘Conan’s leap’ because here Henry was reputed to have defenestrated Conan, the traitor, who had presumably been imprisoned there before he met his terrible end.32 Much later Margaret of Burgundy, allegedly adulterous wife of the king of Navarre, was shut up in the bitterly cold tower of Chateau-Gaillard in the early summer of 1314.33 On occasion towers and chains were thought inadequate as restraints. Sometimes prisoners had to share their chamber with a guard whose duty it was to prevent escape.34 Others suffered more fearsome constrictions. According to the Book of Ste Foy, Adalhelm, lord of the castle of Roche d’Agoux, faced with a captive who had apparently demonstrated too much initiative in abortive escape attempts, locked him up in a narrow wooden cage with extremely tight leg-irons to deny him all hope of freedom.35 Much later, after being routed by the Visconti, Napoleone della Torre of Milan was left to die in a cage.36 Then the furious Edward I commanded that Mary, sister of Robert the Bruce, and Isabel, countess of Buchan, be housed in cages attached to the towers of Roxburgh and Berwick castles respectively, apparently exposed to the jeers of passers-by.37 A cage might also be part of a more humane regime. Enzo, bastard son of Frederick II, passed his long imprisonment in the communal palace in Bologna; according to the Annals of Genoa, he had reasonable freedom of movement in a hall during the daytime, but was locked up at night in a small cage.38 The captors of important men clearly anticipated that the hours of darkness, when the guards might well drop into deep sleep, brought real danger of escape which had to be prevented by radical means. Anecdotal evidence points to the tower as the normal place of confinement for those of higher birth, and the dungeon for the peasant or the serf. However this was not the invariable rule. St Leonard secured the release of one man described as miles from a dungeon;39 and conversely a peasant rescued by St Foy had been kept in an upper room.40 Charles of Anjou ordered that his high-ranking Greek prisoners held at the castle of Trani should be confined in the

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39

lower room, where they could be well guarded. 41 While no peasant could enjoy the conditions of honourable captivity extended to some aristocrats, aristocrats who failed to keep faith with princes might easily find themselves suffering the fate of peasants, as happened to Gerald of Montreuil-Bellay when he infuriated Geoffrey le Bel, count of Anjou, for the third time, and was thrown, chained, into a dungeon. 42 Thus far we have considered towers as the major, in early days often the sole, constituent of an isolated lord’s castle. But towers could also form part of town walls or be erected free-standing within such walls. The abbot of Vézelay, imposing peace on the rebellious inhabitants of the town, identified the fortified houses of Vézelay, some with towers, as lying at the root of the opposition he faced there, and therefore ordered their destruction.43 It is probable that these houses and also the far more familiar aristocratic towers found within most twelfth-century northern Italian towns, and surviving to this day in San Giminiano, Bologna and Pavia, were seen as particular threats to the peace at least in part because prisoners might be kept within them. Twelfth-century sources from Italy certainly portrayed the towers as fulfilling in an urban context the same roles as castles in the countryside. 44 In a vivid passage the monk of St Albans, Matthew Paris, described the destruction by the thirteenth-century governor of Rome Brancaleone degli Andalo of a hundred and forty towers in the city.45 The aristocratic clans who used them as their bases in the constant street fighting that beset the city then suffered a terrible, if temporary, blow. Where kings or other great princes dominated towns, royal or princely prisons began to appear in the course of the twelfth century. In England in 1166, Henry II ordered each sheriff to build a prison either in a royal castle or in a burgh, if one had not already been constructed in the county.46 In some cases the buildings were reasonably flimsy; where there was a large and well-defended castle already in a town, small wooden huts were erected within its courtyard. 47 Here the main defence against escape must have been the high surrounding walls and the large number of guards within. The normal place of incarceration in town castles remained the tower. Fifteenth-century evidence points to a tower on the eastern wall of Caen castle as having been a prison in earlier times.48 Philip Augustus erected the expensive ‘tour du prisonnier’, a round stone tower still to be seen at the royal castle in the border town of Gisors, the purpose

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of which was to secure his Norman lands.49 He also ensured tight security for those captured in 1214 at the battle of Bouvines, in the tower of his great castle at the Louvre in Paris.50 The English kings came to favour the Tower of London for those who had aroused their hatred. An alternative, but equally popular and traditional, site for a prison was either in or beside the gatehouse in the town walls. This must have been a convenient place for incarcerating enemy soldiers captured in the course of a siege, and continued to be seen as sensible for other prisoners even in towns where the prospect of siege had receded markedly by the thirteenth century. The Châtelet, where the prévot of Paris had both his courthouse and his prison, was sited beside the gate that controlled the bridge across the Seine; its prison was in a tower of the fortress.51 In 1188 Henry II bought a piece of land beside the city gate in London and paid £36 0s 11d to two carpenters and a blacksmith to build the first Newgate prison, its name an indication of its site. Unlike the Châtelet, this was apparently conceived as a fairly temporary building, with an expectation that it would need frequent repair. In 1236 Henry III ordered the building of a proper prison in one of the turrets of the gatehouse.52 An impression of what a gatehouse jail may have looked like can be gained today in the Alsatian town of Riquewihr, where the Tour du Dolder, much restored over the years but originally built in 1291, rises above the town wall, dominating the market square from within and externally commanding the main entrance to the town. Where royal, episcopal or lordly government was unpopular, the building of such an obvious symbol of oppression as a prison in a well populated area could have its own dangers. Burgesses began relentless and frequently successful battles to prevent lords’ jails being used for purposes of extortion or revenge. Louis VI’s charter for the men of Etampes in 1123 was typical of other charters of the period in laying down that the inhabitants of the town should not be arrested unless they were caught red-handed in committing a crime. 53 The inhabitants of Montpellier in 1204 won from their lord, among the many other concessions in their Great Charter, that he would not arrest them without cause.54 Later James of Aragon, their new lord, saw them destroy his tower and fortress as a symbol of the freedom he had been obliged to grant them.55 In 1257, Charles I of Anjou promised the inhabitants of Marseilles that his officials would not imprison anyone or otherwise detain him against his will if he could

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produce bail, unless the crime of which he was accused was so heinous as to require it.56 These examples illustrate a broader phenomenon so well known as to need only the briefest of mentions here, that of burgess power, more obviously visible in areas of relatively weak lordship, Italy, the Rhineland, southern France. In the course of the twelfth and thirteenth centuries, much criminal jurisdiction, sometimes limited in scope, sometimes extensive, over the inhabitants of towns across the whole of western Europe, passed from bishops, local lords, or kings to urban courts under the control of town councils or communes.57 Whether the town’s representatives were sovereign, as in the Italian city states, or under the regular inspection of princely or royal officials, as in England and, by the second half of the thirteenth century, in much of northern France, the need for a town jail then became apparent. In some cases, as in many English towns, a jail had usually already been established before an element of control passed to the localities. In other places the existing castle became town property. Italian and Flemish towns tended to have to show greater initiative in finding premises for incarceration; the townsmen either raised money for a purpose-built jail or they used space in the palazzo communale58 or in an almshouse59 or, as in the case of Siena before 1327, they rented space in a private palace.60 The consequences of such developments might be considerable. The jail could in some circumstances provide the first and only building that belonged to the town as a whole. So in Scotland, town councils sometimes met in a cellar or in a ground floor room of the prison.61 In these conditions, urban identity was presumably closely linked with the power of detention. This was appropriate, since the control of criminal jurisdiction was the solidest sign of the burgeoning political and economic importance of towns. The podestà (chief magistrates, usually elected for a brief period) or the échevins (urban judges) or the town counsellors were at their most visible and awesome in punishing disorder or dishonesty. Consequently prisons became the subjects of urban legislation in many parts of Europe. In Cambrai, where there had been much friction between the bishop and the townsmen on the question of jurisdictional rights, an ordonnance pour le prison was promulgated in the course of the thirteenth century, in order to ensure that the practices of detention there conformed with the wishes of both parties.62 The prison there represented the part of the judicial system which the bishop was most willing to leave in

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the citizens’ hands even after he had suppressed their commune. Independent Italian cities dealt with details of detention in the course of broader legislation designed to offer solutions to pressing problems. Their self-confidence in tackling their own difficulties was bolstered by their conscious imitation of ancient Rome’s legislative programme. Social status in towns was less rigidly defined than in the countryside. Therefore, it was relatively easy for lawyers based in towns to make the mental leap of relating the conditions of captivity less to rank than to the seriousness of the offence that had led to its perpetrator’s arrest. Beaumanoir, in his famous Coutumes de Beauvaisis, declared that those held for serious crimes should be relegated to the dungeon and put in irons, while those accused of less serious offences for which the penalty would not involve loss of life or limb should be kept in a more humane way.63 On this precept, the miseries that had always attended those accused of treason were to be extended to murderers and other serious criminals of whatever rank. Unfortunately there is too little surviving evidence about French urban jails for us to know whether this kind of legal thinking affected practice. But in Italy, social status was not necessarily forgotten in the actual construction of urban jails. In 1279 the public jail in Florence, the Stinche, was built with the intention of keeping criminals apart from debtors, men from women, and the upper classes from the lower.64 A different kind of social separation obtained in Cambrai where, in the thirteenth century, the jail had relatively airy and clean private rooms on its top floor for those of high status or deep pockets. It is interesting that enough of such people made their way into incarceration for special arrangements to be made for them. Below that, in common rooms, men were kept separate from women.65 Whether there were dungeons below the common rooms is unclear from the surviving text. But there were so at the Paris Châtelet by the end of the thirteenth century.66 In Siena, by contrast, the threefold separation was between those awaiting trial, debtors, and those already convicted of crime, with no apparent social distinctions at all.67 One feature distinguished most medieval town jails from many of their late antique or modern equivalents: the gallows were normally situated, not within or beside the jail, but apart, beyond the town walls (though this was not true of Venice).68 This separation meant that the rituals associated with execution, made famous by Foucault,

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for which fragmentary evidence survives from the end of the thirteenth century, were not before that an integral part of prison life, and even then had relatively little impact on the other inmates. They need not therefore command the kind of attention they usually do in examinations of later prisons.69 The other innovation of the thirteenth century was the ecclesiastical jail which, though still rare, was spreading as bishops, abbots and inquisitors began to appreciate the deficiencies of putting delinquent clerics or laymen who had committed serious offences against canon law into jails run by secular officials. The drawbacks were particularly evident to clerics who, for historical reasons, engaged in constant battles over jurisdiction with their lay counterparts. Unwillingness to cooperate with the prévot of Paris almost certainly explained the decision of the chapter of Notre Dame cathedral to build prisons in its cloister, as it had by 1285.70 These were presumably rather like the huts mentioned above erected within Henry II’s castle walls. An arrangement more inconvenient for the canons could hardly be imagined. But at least they could keep a sharp eye on their prisoners. The bishop of Paris, more sensibly, had his prison attached to the court room of his jurisdiction, the For-l’evêque.71 Inquisitorial prisons, when purpose built, had dungeons and upper chambers like the majority of urban ones. Before leaving the subject, there is one more form of detention in the high middle ages that needs to be considered briefly, because it has been claimed (in my opinion needlessly) to cause confusion for historians. 72 All jurisdictions of the thirteenth century agreed with Hobbes that moral chains, exactly comparable with the physical chains found in prisons, could be created by citizens freely promising to accept some form of long-term restriction on their liberty. Therefore they devised a form of self-binding detention, described in some places as ‘open’ as opposed to ‘closed’ imprisonment. Of this, debtors were often the beneficiaries. For example, in a Venetian statute of 1242, it was laid down that persons cited for debt in the city should initially be confined for 30 days to the central district of Venice; they might not cross a bridge out of this area. Only if they had not paid at the end of this period or if they broke the terms of their confinement order – which could not, presumably, be easily policed – would they be subjected to proper imprisonment.73 This public restriction on the debtor’s liberty was intended to prevent him from fleeing while yet giving him a chance to raise the money he needed. It will have

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made his plight well known to all his neighbours, thereby increasing the pressure on him to pay. There were similarities between this Venetian expedient and the one followed by Philip IV of France with the burgesses of Reims. When that city failed to discharge the full sum it owed for the costs of his coronation in 1285, the king sent a number of the burgesses to the royal city of Laon, where they lived, not ‘in prisione clausa sed in prisione in villa’. (Not in a closed prison but imprisoned within the town.)74 This meant that they were free to move about Laon but on their honour not to leave it. Indeed, so relatively ordinary was their life in their new abode that they were deemed liable to the same taxes as Laon’s inhabitants, a liability against which they appealed unsuccessfully to the Parlement of Paris. Again, the purpose of their confinement, here in an alien rather than in their own city, was presumably to focus their minds on the question of how they could repay the king as quickly as possible. Again, they will have realized that if they did not pay, full imprisonment would follow. Interesting though this form of temporary banishment is, it was an expedient open only to a powerful ruler, and to one who, in the first few months of his reign, did not wish to incarcerate debtors lest he make himself unpopular. We should not imagine most medieval French towns as peopled by displaced persons trying to repay debts. The Grand coutumier de Normandie, one of the earliest surviving law books from the middle of the thirteenth century, spoke of ‘viva prisonia ducis Normannie’ (open [or living] prison of the duke of Normandy) for the custody extended either to the appellant or to the defendant in a serious case who could produce competent guards among his own friends or relations to keep him secure before the trial and produce him on the required day.75 In other words there were localities in which the bail offered to those of good reputation who had not been caught in flagrante delicto might be talked of as a form of imprisonment. Again, a breach of promise by the appellant or the defendant would lead to full imprisonment (which by implication was equated with death). These examples have provoked the suggestion that historians can easily exaggerate the number of persons incarcerated in castles or urban jails by counting those on bail among them. Caution is indeed necessary in checking that full imprisonment was always in the minds of chroniclers or notaries when they spoke of the fate of those who had been arrested. But usually the context makes plain that this

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was indeed the case. It is notable that the Venetian, Parisian and Norman texts used above were all scrupulous to record the unusual meaning of the phrases in their special circumstances. Moral chains clearly did exist in medieval Europe; indeed bail was to be found everywhere as a standard response to an accusation of criminal activity. It could constitute a form of custody, and will be considered as such in Chapter 5. But it was not by most medieval authors left undistinguished from detention behind the walls of castles or jails, despite the wording of the Grand coutumier de Normandie. As for the debtors of Venice and Reims, they were unusually fortunate in being granted time to repay before the prison gates clanged behind them. These instances of ‘imprisonment’ therefore constitute rare usages of the word, not its standard meaning; they need not detain us further.

4 CASTELLANS, JAILERS AND GUARDS

This chapter attempts to investigate two questions: who might establish a prison, and who was responsible for the day-to-day guardianship of its inmates? Although there is little evidence on the second, it is relatively straightforward. The first question cannot be answered more than speculatively, particularly for the early part of the period, even if one takes the view that the proper definition of a prison is the narrower one offered by the Oxford Dictionary of Current English: ‘a building in which persons are consigned while awaiting trial or for punishment’, rather than the broader, initial definition offered, ‘place where person is kept in captivity’. If we assume a close link between prison and the criminal law, then the commonest answer to the question, at least by the later thirteenth century, was the one given by Alphonse of Poitiers’s officials to the abbot of Moissac when he asked to establish a prison: that provided he possessed the requisite jurisdictional rights it was proper that he should build one, despite a previous prohibition laid on such a course of action.1 This answer, however, begs some questions. It is not clear from the letter whether by the second half of the thirteenth century all holders of jurisdiction in Languedoc were licensed to have prisons, or only those who had rights of ‘high justice’ – usually competence to judge cases of homicide, rape, arson, robbery with violence, abduction, or a combination of these, dependent on area and time. The Customs of Anjou and Touraine, which included the hanging of thieves among the rights of possessors of ‘low justice’, 46

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took it for granted that knights or lesser lords in this category could also imprison.2 This was probably not standard practice elsewhere. Nevertheless it was the general rule in western Europe by about 1250 that where imprisonment occurred as part of the judicial process its direction should be in the hands of those who had the right to hear criminal cases. In other words, the power of legitimate incarceration was attached to the possession of legitimate judicial authority. Some time between 1212 and 1223, the then abbot of Moissac had claimed (wrongly) in a letter to Philip Augustus that the abbey was a royal foundation, and had besought the king to restore the abbey’s immunity and liberty.3 The later abbot who wrote to Alphonse of Poitiers believed he was entitled to build a prison because his abbey and its possessions had for generations been exempted from the operation of anyone else’s jurisdiction. Although he was wrong about the antiquity of his claim, it was true that Moissac had had its own court for long enough to put it beyond contest. Therefore, Alphonse’s clerks decided it should be free also to have its own prison, despite their awareness that this represented a volte-face on the part of their master, the count of Toulouse. Their recognition that in granting permission they were innovating is noteworthy. Earlier, prison-building had clearly been forbidden to at least some lords in the county of Toulouse. In a part of the world where comital authority was generally regarded as weak, it is interesting that this prohibition should have been effective, and that the abbot should have taken for granted his need for comital authorization before he set about building his new jail. The abbot’s request suggests that he now perceived the possession of a prison as a symbol of his social standing. If this is so, then prisons had become (like gallows)4 a concrete sign of local power. If Alphonse of Poitiers’ officials were typical in permitting what had earlier been forbidden, the rapid spread of prisons in the second half of the thirteenth century becomes explicable. Both demand for them and willingness to authorize their construction had increased markedly. Charters granting jurisdictional rights and reports of cases brought to the Parlement of Paris make it crystal clear that the prime interest of great men in possessing jurisdiction was the financial profit they could make from the goods confiscated from those sentenced to death, mutilation, or banishment. One unpleasant case before the Parlement of Paris in 1265 saw the canons of the cathedral

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chapter of Sens, which had the right to judge cases of theft within a defined area, disputing with the knight who carried out their sentences whether the chapter might confiscate the clothes which a thief was wearing when he was arrested and pass him over to the knight for execution almost nude.5 Since the right to execute thieves was, in France and Germany, more widely enjoyed than that of hearing cases of homicide, rape or arson, there was room for much legal wrangling over the goods of those sentenced to death. In these circumstances the possession of a prison could assist a lord in his claims where they were contested. To have the captive firmly under one’s own control was a considerable advantage. While lords wanted prisons, kings were growing more determined that only they (or perhaps the more important of their princes) should authorize their possession. In later twelfth-century England (with the exception of the Welsh March and a very few ancient immunities), and in the Regno by the reign of Frederick II,6 the right to exercise high criminal jurisdiction was a royal monopoly; therefore the only legitimate holders of prisons for detaining those accused of serious crimes were, with a very few exceptions, royal nominees, the sheriffs or town corporations in England and the justiciars in Sicily, with subordinate castellans and jailers operating under their control. By the later twelfth century Aragonese kings were beginning to develop a similar form of control;7 by the end of the thirteenth century so were the kings of Castile and of Scotland (though in the latter case not across the whole country).8 In all these states, prisons for custodial detention before trial were increasingly proving necessary, because trials of those accused of serious crimes could only be held at the specific times or in the specific places at which royal judges, officials or their representatives were scheduled to be present.9 Hence a period of delay between arrest and trial was becoming standard. This delay constituted a crucial link between the emergence of the state and the multiplication of prisons. In Italy by the latter years of the thirteenth century, the increasing control of jurisdictional power by urban communes had also led to the building of prisons under communal control in the larger towns. Here the reason for the expanding numbers cannot have been the need to await judges coming from afar; communes all had their own judges and courts to take final decisions. But the development of inquisitorial procedures, to be discussed in Chapter 7, will have caused delay in arriving at a verdict, because enquiries had to be

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conducted by a magistrate to discover what had happened. Then the high level of violence encountered in most Italian towns led to courts becoming swamped by cases, and hence to the postponement of trials. So for rather different reasons from those that operated in the Regno or Aragon, prisons filled up with those accused of crimes too serious to permit of bail. However, Italian authorities followed the same rule that operated elsewhere: prisons, where they were deemed necessary, went with judicial competence; therefore the surviving aristocratic preserves in the countryside also started to acquire them. In France the situation was more confused, with substantial numbers of churchmen and aristocrats across the country exercising criminal jurisdiction by virtue of charter or ancient custom. On the ever-expanding French royal demesne, two systems operated at the same time, with the royal officials, baillis in the north and sénéchaux in the south, steadily increasing the sphere of royal jurisdiction at the expense of aristocratic or ecclesiastical high jurisdiction; clashes between royal officials and local powers were frequent. Princely jurisdiction correspondingly shrank, but still survived in full vigour in 1300 beyond the fringes of the royal demesne, particularly in Flanders, Brittany, Burgundy and Gascony, within which counties or duchies royal officials had no jurisdiction of first instance. Above all these courts stood the royal court which, in the form of the Parlement of Paris, claimed by the second half of the thirteenth century to be the final court of appeal for all lesser courts on the demesne and, controversially, beyond it. The complex local situation in France and the areas on and just beyond its borders necessitated written compromises over powers of arrest and detention. For example, the count bishop of Maurienne shared his jurisdiction with the viscount. While criminal jurisdiction was exercised by a judge nominated by the count bishop, sentences were carried out by the officials of the viscount. The count bishop’s officials, when they arrested delinquents, passed them on for detention in the viscount’s prisons.10 As confusingly, the chancellor of the university of Paris had some jurisdiction over the masters and scholars of that place of learning, yet was prohibited by the papal bull parens scientiarum of 1231 from possessing his own prison. Delinquent scholars had to be detained in the bishop of Paris’s jail. 11 Where no such explicit arrangements were worked out, confusion often reigned.

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In Germany and the Celtic realms, with the exception of the kingdom of Scotland and the part of Ireland under English rule, high criminal jurisdiction was exercised by princes, counts, castellans and their officials at a fairly local level. Where prisons existed they might belong to the crown, to great princes, to lesser lords, to bishops, or to towns. Because justice was based on the localities it remained for the most part summary. Consequently prisons were not necessary everywhere, nor were they frequently purpose-built. The usual places of detention remained the castles of the aristocrats, where all sorts of prisoners continued to be kept together; but there were also jails in town fortifications.12 If broad generalizations as to who had the right to possess a prison are difficult to formulate for the period around 1250, before that date they are much harder. In his letter, the abbot of Moissac was concerned with legitimacy. He constructed his case on what he thought were the age-old privileges of his abbey. But historians of the period around 1050 have until recently commonly believed that no such thinking lay behind the claims of those who imprisoned in the eleventh century, the heyday of castle-building. This, then, brings us back to the problem raised in Chapter 3, that of the ‘rise of the castellans’, here to be discussed in terms of law and rights, rather than of buildings. Historians of a legalistic turn of mind used to see the history of jurisdiction in most of western Europe as having been in ‘public’ hands in the Carolingian period; that is, in the hands of counts chosen by kings, and then delegated by counts to their viscounts or vicarii. Whereas this situation survived or was revived in Germany, England and Italy around 1000, in France and Catalonia it was under increasingly severe challenge by the new class of castellans, who claimed rights of jurisdiction, not in virtue of delegation from above but simply through their possession of the physical force necessary for its implementation.13 This change, often labelled ‘the privatisation of public rights’ or ‘feudalism’, spread to Germany in the second half of the eleventh century, and to Italy, though there with considerable local variation, at about the same time. On this interpretive model, the wicked castellans whom the eleventh-century miracle stories so frequently described as throwing their peasants, and sometimes men of higher birth, into dungeons in their castles, were the exercisers of a new, brutal, and illegal because uncustomary, coercive power.14

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In recent years, this clearcut picture has been attacked from a number of points of view. In the first place, it is debatable how far a thesis propounded principally on the basis of evidence in the Mâconnais should be treated as having general application across France and beyond its borders. While there are grounds for seeing a parallel movement in Catalonia,15 and perhaps elsewhere, there must be hesitation about imposing one pattern of development very widely in Europe during a period of poor communications and little use of written record. Then there is the question of how far the impression of novelty is accurate; it may be rather the fruit of the appearance of new kinds of evidence in the eleventh century, which turn the historian’s gaze away from the aspirations of great monarchs to the situation as it had perhaps always actually existed in the localities. On this hypothesis, viscounts had always behaved very much as castellans were accused of doing. In fact the Miracles of St Leonard encourage such an interpretation, since the first wicked lord from whose clutches St Leonard delivered a peasant was the viscount of Limoges.16 For many parts of Europe there is as yet no proof that some castellans were not the descendants of viscounts or vicarii; in Catalonia some certainly were.17 Consequently they could be thought to have inherited rights rather than seized opportunities. Lastly, there is serious doubt as to whether the antithesis between ‘public’ and ‘private’ on which the model depends was meaningful in that form at any time between the seventh and the later twelfth centuries.18 Whether these arguments can be met or not is disputed; but some weighty historical opinion remains on the side of those who allege a new, brutal and illegal coercive power which came to be exercised primarily by castellans in the course of ‘the feudal revolution’ of the eleventh century.19 More cannot be said here on this highly controversial issue. But it must be conceded on the one hand that Carolingian monarchs had emphasized cooperation with rather than delegation to their aristocrats; therefore specific royal grants were not always necessary to legitimate assumptions of power such as the exercise of jurisdiction or the building of castles.20 Once built, castles as part of a defensive network were the obvious places in which to imprison those who invaded the lord’s territory. So if jails were an innovation, they were not grounded in any clear new constitutional principle. Equally, it seems likely that European aristocrats had always been entitled to imprison the members of their own familia (household and/or serfs)

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as a form of discipline; 21 some of those made famous by saintly deliverance fell into that category. Given these considerations, whatever may be concluded on the broad question of whether there was or was not a ‘feudal revolution’ in the eleventh century, it must be dangerous to assert as a general rule that force, not right, lay behind the castellans’ imprisonment of their own or other people’s men.22 We cannot deduce from miracle stories, which give a victim’s view of what happened, the grounds on which lords thought they could justify their actions. It may be natural to assume that they extended their rights to the limit, and perhaps beyond; but proof that there was no right is lacking. Lords’ ingenuity in thinking out new methods of taxing their peasants should not be taken as a sign that there was no innovation to which they would not stoop. In any case, it is beyond doubt that many castles, particularly those in Normandy and Flanders, were established by political authorities who delegated to chosen castellans the duty of protecting the people and keeping the peace. It is also clear that, in various counties and duchies, castellans were forced to hand over their castles temporarily to their lords as a sign of subordination.23 The ‘independent’ castellan of the Mâconnais had rather few imitators in other parts of France, and those castellans who did grasp their independence frequently lost it again after a short period. Suger’s description of the enforced subordination of the castle of Montlhéry to the king of France was typical of what happened, sooner or later, to castles on the royal demesne.24 In Germany the promotion of ministeriales, men of servile birth, to castellanships was a clear indication of their initial lack of independence from their lords (though they had often acquired independence by the later twelfth century).25 Prisons in castles held by such men were clearly originally authorized by higher authority. They had therefore been legitimated. The whole argument put forward thus far in this chapter must seem rather abstract and lacking in meaning for ordinary people of the period, for whom the experience rather than the legitimacy of imprisonment was presumably the chief reality. Yet it is clear from the complaints made against lords that most of their victims felt their sufferings heightened by a sense of injustice, whether that sense was legally justified or not. The emergence of communities willing to fight against what they saw as arbitrary imprisonment 26 is proof of the depth of feeling on the matter, though not proof that such communities had legal right on their side. As so frequently in human

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history, the battle was between those who saw law as defined by existing custom (the pattern of argument followed in the last two paragraphs) and those who saw it as ‘reason unaffected by desire’,27 in other words law as it ought to be, or in medieval terms, custom as interpreted through the wishes of those who spoke. Both these ways of looking at law were and are valid; but historians, using hindsight and moved by feelings of humanity, have perhaps been too prone to take the second definition. The point to be made here is that legitimacy was a matter of substance in the high middle ages, even to those who did not conceptualize. While many peasants felt bitter resentment at their treatment, the castellans were confident that they acted within their rights. Allegations of novelty were good ammunition in wars of words. It can, however, be argued that the novelty lay less in the coercive power itself than in the opportunities for its use created by the erection of castles and by the economic upsurge that gave lords an incentive to be inventive with forms of taxation. As to the brutality, there is no satisfactory way of determining whether ordinary men suffered more than they had in the past or whether they had merely acquired a new way of making their voices heard. But at least there are some pointers to the second hypothesis. In any case, once we leave the question of who had a right to maintain a prison for that of how and by whom prisoners were guarded, it becomes evident that the close link between a castellan and his prisoners assumed thus far in the argument often did not exist. In other words, the prisoners he guarded were not necessarily either arrested or caught by him; the ‘evil customs’ of the area might have nothing to do with the fate of those detained. In Normandy before the end of the eleventh century, the duke had become accustomed regularly to demand from his lords that they hand over to him their important captives.28 Conversely, he demanded that they guard his captives for him. Over time, this grew to be the custom elsewhere in France, as demonstrated by John of Marmoutier’s famous story of the Poitevin knights handed over by Geoffrey le Bel to Joscelin the seneschal.29 By 1267 the viscountess of Limoges was able to prove that she was the liege lord of a certain castle because she was permitted to keep prisoners there.30 By then, the right to pass over prisoners to the guardianship of others had become a litmus test of effective political power. Whether guarding his own or his lord’s captives, the castellan was initially (and in some parts of Europe throughout the whole period

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1000–1300) the chief officer responsible for the day-to-day treatment of inmates of his jail. Charles I of Anjou, outlining the procedure to be followed when a castellan resigned from his office, ordered that he be held to account to royal officials for all the prisoners detained in his castle.31 On the whole, castellans have had a bad press in their capacity as jailers, based on condemnations of their conduct in eleventhcentury miracle stories. But the evidence is not wholly damning. According to John of Marmoutier, Joscelin the seneschal felt so sorry for the Poitevin knights in his charge that he deliberately created an opportunity for them to plead their case with Count Geoffrey, whose prisoners they were.32 In a similar situation, Ebehard of Hagen had been sufficiently sympathetic to the Saxon hostages the Emperor Henry IV committed to his care to turn a blind eye to their escape.33 Of course, castellans benefited from the fact that, when complaints mounted about their treatment of captives, they could defend themselves by asserting that they were merely carrying out their lord’s orders.34 Even so, as a class, they were by no means always more brutal than their lords. Indeed, the Customs of Touraine and Anjou found it necessary to include the clause ‘No lower lord can release men or women thieves without his overlord’s agreement or order; and if he does release one, and it can be proved and found against him, he loses his administration of justice.’35 Guarding their lord’s prisoners could be a hazardous task. Permitting escapes might result in loss of favour, loss of office, or even imprisonment for the careless. The deprivation of royal goodwill and income which befell Geoffrey de Mandeville when he allowed Ranulf Flambard to escape from the Tower of London was widely feared.36 In the Touraine and Anjou, a castellan unfortunate enough to have a prisoner break out of his jail would at once have to prove by oath that it resulted neither from his own corruption nor from carelessness.37 Otherwise he faced unspecified but doubtless harsh punishment from his lord. Alfonso X’s Siete Partidas also threatened severe retribution for Castilian custodians who permitted or aided prison breaks.38 Besides, there could be additional hazards. The viscount of Mortain, who failed to secure in his royal jail the thief Thomas le Gresle, found himself sued for damages when Thomas escaped and stole from a third party. 39 Although he eventually won his case before the Parlement of Paris, the viscount will have passed many anxious days in trying to compute his potential liability.

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Furthermore, while jurisdictional rights in general were seen as a source of profit, and therefore well worth arguing about, running a prison was beginning to be recognized as potentially a serious drain on resources. In the first place, there were costs associated with making the jails secure. By the second half of the twelfth century, most minor lords could no longer afford to update their castles to the standard that obtained among the great. Consequently they either permitted their fortifications to sink into a state of disrepair, which made them now unsuitable for keeping prisoners, or commended them to a count or duke who repaired them but subordinated the jurisdiction firmly to their own. Secondly, those who found themselves guarding prisoners, either their own or those of their lord, had to pay the guards who prevented escapes, and in some circumstances they might have to pay for their prisoners’ food as well.40 This could lead to serious financial loss unless means could be found of passing on the expenses incurred, either to the prisoners or to third parties. Considerable ingenuity was expended in finding ways of doing this. Hence the instruction sent by Charles I of Anjou to those holding his prisoners from Asti: the captives were either to pay the costs of their custody, reckoned at 3000 l.t.41 a month – a very high sum unless it was intended to cover the expenses of all the more than 2000 prisoners originally captured – or to live on nothing but bread and water.42 The alternatives presented to the men of Asti – either paying through the nose or starving – were commonplace for captives of all categories in the period. Given the costs of repairing castles, it grew to be in the interests of what was in many parts of western Europe an increasingly indebted aristocratic class to limit imprisonment in their own castles as far as possible. This they did by permitting captives held for ransom to return home after giving guarantees that they would pay; by organizing their own courts to produce speedy verdicts and summary sentences; and by passing on to their kings or princes wherever possible either the persons or the costs of those for whom imprisonment was deemed necessary. Richard Lionheart, for example, accepted his obligation to pay from the Norman exchequer costs for the imprisonment of the belligerent Bishop of Beauvais in Normandy in 1198.43 The consequent withdrawal of lesser lords from the story accounts for the increasing concentration in the thirteenth-century sources on royal, official, communal, or urban jails. It was not that castles ceased to be important as places of imprisonment; rather that, except

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perhaps in Germany, castellans were increasingly likely to bear an official title bestowed by their prince, and to perform their duties as his agent. It used to be taken for granted that the partial switch from jails controlled by castellans to those controlled by royal, ducal or comital officials represented an improvement in standards of justice; in other words, that public captivity was automatically better than private. While in the long term there may be something to be said for this point of view, reading the complaints brought against the officials of Louis IX and Alphonse of Poitiers in the surviving enquêtes of the 1250s soon provides proof that contemporaries at any rate often thought officials very corrupt. For example, in a complaint to Alphonse of Poitiers against the constable of the Auvergne, Chatard, Lord of Thiers, bitterly indicted the constable for unfair intervention in a quarrel between the bailiff of Thiers and the bailiff of Pont du Château. According to Chatard, when the bailiff of Pont du Château accused the bailiff of Thiers of beating him, the constable imprisoned the bailiff of Thiers, despite the fact that his lord was willing to stand bail for him and believed him innocent of the charge. The constable kept the bailiff in jail for more than 3 weeks, then charged him 30 livres tours for his release and 10 livres viennois for his costs while in captivity.44 In the end, the lord of Thiers paid the constable 30 livres viennois to settle the matter.45 If the charge was indeed false, the bailiff and the lord of Thiers were both seriously defrauded. Of course, we have only the evidence of one side in this affair. But as Chatard saw it, the constable was using his right to imprison as a means of obtaining ransom in just the same way as eleventh-century castellans had been accused of doing. Such an allegation was far from unique. It would take more than a few enquêtes to cure officials of so lucrative a vice. Whereas eleventh- and some twelfth-century chronicles suggest the close involvement of castellans with the care of the prisoners in their control, this gradually ceased to be the case in most places. Though the tenant of the castle, whether castellan or royal official, still bore the final responsibility for guarding the prisoners, those with large castles and respectable incomes preferred to nominate others to deal with the less savoury side of day-to-day affairs. Castellans, like some royal officials and like the podestà of Italian towns, had by the later twelfth century many other administrative or military tasks to perform. They therefore appointed intermediaries, usually prévots,

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to fulfill minor tasks, including organizing the guards. Hence the reappearance of the jailer, known in the Roman empire but apparently not found in western Europe since the fall of Visigothic Spain. The lords’ example was followed by those towns which managed justice for their own inhabitants, and even a few which did not. For example, by the middle of the thirteenth century, Marseilles had a common jail under a jailer, although the town’s judicial affairs were technically still the business of the comital vicar.46 Jailers had to be paid, and the means of recompensing them were various. In 1270 Alphonse of Poitiers wrote to the seneschal of Agen, telling him to hand over the prison there, along with the comital houses in that town, to the bearer of his letter, who was to be paid 10 deniers tours a day for looking after both houses and prison. 47 Salaried jailers were, however, unusual. Louis IX’s jailer at Nogent-Erembaud was permitted to keep the goods confiscated from robbers in his jurisdiction.48 Charles of Anjou applauded the jailer of Nocera who had done the job for more than 10 years without a salary, and rewarded him with immunity from the heavy burden of the collecta, the tax to cover governmental expenses.49 These privileges, though distinctly useful, were not in themselves enough to live on. Prisoners had to supply what lords and towns did not. By the end of the thirteenth century, the keeping of Florence’s prison, the Stinche, was usually farmed out to the highest bidder (who hoped to enrich himself by taking fees from inmates); the same system operated in Siena,50 and presumably elsewhere. In such circumstances, the successful candidate had not only to recoup his daily costs, but also to recover his initial outlay and to make a profit on which to live. It was not surprising that the jailer was frequently portrayed as avarice incarnate. Yet in some Italian cities, a proportion of the profit from the jail went, not to the official, but into the communal coffers.51 Presumably the financial pressure on inmates was correspondingly increased so that the jailer continued to make a living for himself. The jailer controlled access to prisoners and was the crucial figure in determining the conditions that applied behind the great prison gates. He normally charged, both for the provision of food and for the guards; this latter payment must have been particularly irksome to those from whom it was levied, since it was not by their choice that they were guarded. But there was surprisingly little dispute about it. In Cambrai in the thirteenth century it costs 12 deniers a day to be an

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inmate in the town jail, and considerably more to hire one of the better chambers above the main room.52 In the Châtelet in Paris, even the inhabitants of the dungeon were charged 1 denier a day for their forced residence in the terrible conditions that faced them.53 Everywhere high charges formed a major and thus far too little noticed part of the punishment inflicted on inmates. In the Regno, jailers had the additional responsibility of escorting important prisoners on their journey from the castle in which they had been detained to the court for trial,54 a distinctly hazardous occupation, since the journey provided an opportunity for escape. Alfonso X of Castile wanted to give jailers the yet more onerous task of sending to the local judicial authorities written notification of each prisoner in their care and the reason for his committal, so that a trial could be arranged.55 It is perhaps unlikely that the king succeeded in this aim. But even for those without additional duties, the jailer’s responsibilities were heavy. Beaumanoir held that he was obliged to know exactly whom he had in his jail and why.56 This can only have been easy to discover in places like Venice, where by the middle of the thirteenth century there was a properly organized police force provided by the various quarters of the city and operating under the surveillance of the Signori delle Notte (Lords of the Night Watch), or in the Regno, where a specially appointed posse made all arrests in each area. 57 Elsewhere, establishing the credentials of those who attempted to commit men to prison, whether after a hue and cry, or by a private arrest where that was still permitted, must have been difficult. A man wrongly imprisoned might vent his wrath on his jailer as well as on those who arrested him. The discussion by Peter the Chanter (the distinguished late twelfth-century moral theologian) on what a jailer should do if he knew that one of his prisoners was innocent almost certainly arose from a question asked by a student in Paris based on an actual case.58 That even so clever a man as the Chanter could not provide a straight answer provides an insight into the problems of the office. The sources also have something to say on those who actually guarded prisoners, whose principal task was to prevent escapes. In the eleventh century, castle guard might be an obligation resting on the knights of the surrounding area, each for a set number of weeks in the year.59 But the tendency was for it to be performed in practice by lesser men. In some Tuscan castella, built by aristocrats for the better exploitation of the soil and the protection of its inhabitants,

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castle guard was a duty of the community.60 The guards against whom the inhabitants of St Omer complained in their charter of 1128 seem to have been relatively lowly dependants of the count of Flanders. 61 All these were responsible for the whole castle, not just for any prisoners held within it. By the later twelfth and the thirteenth centuries, when castle guard duty became hard, if not impossible, to enforce, castellans were directly responsible for hiring the help they needed specifically for guarding prisoners. In normal times, this may not have been a heavy burden. But it could rise very substantially when individual important prisoners were consigned to their care. For example, Charles of Anjou stipulated that Henry, once count of Caserta, should be guarded day and night by ten men in his jail in the Regno.62 It cannot have been easy to find so many reliable and fit persons. In 1283 Charles expressed distinct anxiety that the men chosen to guard traitors in four of his castles had become too familiar with their prisoners; if this proved to be true, they should be removed and others put in their place.63 The actively disloyal were probably outnumbered by the incompetent. A sad story in the register of the Parlement of Paris of 1265 tells of a proud father, Thierry Cordery, who volunteered the services of his son Robin to guard a new prisoner in the local castle, assuring the castellan that Robin was very suitable for the duty. The son was therefore taken up to the tower in which the prisoner was being held and left in charge. Unfortunately Robin failed in his task: the prisoner escaped. Thierry was held to have acted as guarantor for his son, and therefore to be liable for the fine that doubtless impoverished him.64 As we have seen, not all prisoners were confined within castles. When the commune of Bologna in 1249 found itself rather unexpectedly in possession of so distinguished a prisoner as Enzo, illegitimate son of Frederick II, it triumphantly consigned him to the podestà’s palace. But it soon came to appreciate the practical problems of keeping Enzo in such style. By the statute of 1252, the commune determined that the prisoner needed 16 guards, to be changed daily. Those eligible for duty were to be 30 years old at the minimum. They were to be paid 2 solidi per day, not to engage in any other duty or games while they were guarding, and to be discharged for 6 months once they had done a 15-day stint. By 1262, the system was no longer working satisfactorily, and the conditions had to be modified. Guards, aged 25 as a minimum, were to be appointed by the podestà

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and obliged to work for 15 days without salary. Clearly the task, once relatively popular, had by long repetition become undesirable.65 Equally the cost of paying for the operation had weighed the commune down. Unusual though it was, the story of Enzo’s captivity illustrates the standard difficulty faced by towns in keeping their prisoners safely. Unlike castellans, town governments could not call on an established system of castle guard or paid mercenaries to provide reasonably well-trained men for the task. Guards frequently had to be found from among the residents of the town or its environs. For example, in 1270, the viscount of Melun agreed with the abbot of St Nicholas of Angers that in Montreuil-Bellay the guard, both day and night, of those arrested for theft should be transferred to the abbot’s men.66 These men were the knights and peasants settled on the abbey’s lands, who had to take over the task as a community obligation, for which they had no special qualifications. In other towns the same task might fall on the guilds. The viscount of Melun in his charter assumed that in most places different people would be employed at night from those on duty in the daytime. This was common practice, because darkness created the perfect circumstances for prisoners to escape, and therefore the guardianship of the building at night was a more onerous task. The use of the guild of butchers to guard York prison was perhaps a rather vivid illustration of the skills thought necessary for such a task.67 That the night guards at the Châtelet in Paris were indiscriminate in their treatment of those who approached the place in the hours of darkness is to be inferred from what befell two servants of the Treasurer in 1311. When they were sent to the prison at night on an errand, they were immediately seized by the watch, who stripped, beat, wounded and ill-treated them in the manner normally reserved for those accused of robbery and murder. For this crime, the only punishment the watchmen suffered was dismissal from their jobs.68 Rulers could not afford to be too harsh in their treatment, because guarding was unpopular. Charles I of Anjou, desperate to recruit sailors in Naples to man his galleys, offered them the inducement of dispensation from the duty of having to guard prisoners at night.69 The care taken to ensure that those put in charge of captive aristocratic ladies were decent and reliable suggests that the run-of-the-mill jail guard was a pretty rough type.70 Whether they were in reality as prone to drunkenness as the chroniclers frequently make out, or

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whether this was merely the conventional explanation for their failure to prevent escape it is hard to tell. Because they were only mentioned when outwitted by their charges, they were always portrayed unsympathetically.71 Kings were prone to threaten serious punishments for escapes. For example, Frederick II’s famous Liber Augustalis, his laws for the Regno, included the sinister clause: We order that guards by whose negligence captives have escaped from custody should, after all their goods have been confiscated, be tormented by the squalor of the prison for a whole year . . . Moreover, those who permit prisoners to escape by fraud should be punished by death in accordance with the ancient laws.72

Alfonso X was also harsh with negligent guards.73 Nevertheless, as we shall see in Chapter 9, prisoners did quite frequently escape, and in practice, there is little evidence to suggest that delinquent guards were usually hanged for their carelessness. They were often either fined or imprisoned themselves, though the occasional unlucky jailer might share the outlawry meted out to the keeper of the Newgate in 1255, who did not manage to buy his pardon until 1258.74 Just as jails were almost all built for other purposes in this period, so those who guarded prisoners in them were usually recruited from other occupations for temporary employment there. Both jails and jailers reflected the unplanned nature of imprisonment and its rapid growth in western Europe.

5 THE KEEPING OF CAPTIVES IN PRIVATE HOUSES

The preceding chapters have perhaps given the impression that, from 1000 onwards, captives were held only in castles or in town prisons. But in the eleventh century and the first half of the twelfth this was certainly not the case; and even in the thirteenth century, the Sachsenspiegel (a private legal treatise compiled by Eike von Repgow between 1220 and 1235 which became very influential across much of Germany) talked of prisoners kept in farmsteads and houses as well as in castles.1 From this it is clear that imprisonment was not in the high middle ages exclusively an instrument by which the great of this world or those endowed with the coercive power of the community oppressed their inferiors. It could still, on occasion and particularly often early in the period, be a means whereby a man could take revenge on his social equal when he was temporarily in a position of advantage. Though evidence for this is necessarily very scattered because the reasons for describing it in writing were not compelling, the subject of captivity cannot be fully covered without at least some discussion of private detention in the period before rulers of territorial principalities or indeed of countries seized the initiative in trying to suppress violence, including kidnap. Even when such rulers had so asserted themselves, only in some places were they successful both in channelling the exercise of high criminal justice into their own hands and in claiming an exclusive right to incarcerate. Consequently in some parts of western Europe there were still by 1300 circumstances in which individuals might find 62

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themselves, whether lawfully or otherwise, chaining or confining others in their own residences, be they castles or cottages. The Normans abandon themselves to robbery and pillage, They slay and capture one another, and bind with fetters.

So Orderic Vitalis described the terror that broke out on the death of Henry I, king of England and duke of Normandy, in November 1135.2 A world in which individuals were at risk from their fellows because strong power ceased to discipline them was a world characterized by robbery, murder, and kidnap. The Franciscan chronicler Salimbene (who had good Parma connections), claimed that the war between Frederick II and Parma in 1245 led to ‘huge numbers of bandits, thieves and predators, who would take men captive, imprison them, and hold them for ransom’.3 Clearly this ‘state of nature’ was a well-worn topos among clerical authors; but their descriptions should not be discounted as evidence merely on that account. Violence was never far from the surface in western Europe in the high middle ages; taking captives to coerce them into providing ransom or conceding some other benefit in practice happened frequently. The first issue that needs to be considered is whether such happenings could occur in relatively normal circumstances. The implications of Orderic’s and Salimbene’s comments are clear: firstly, that it was only when good government was lacking through one crisis or another that kidnapping, and particularly kidnapping for ransom, occurred in the high middle ages; and secondly, that kidnapping was perceived by all but the perpetrators (and even to an extent by them) as a wrongful act. Only the wicked indulged in it. Yet it is hard to see how the conditions they described could have been characteristic only of unusual periods of anarchy, at least in the eleventh and the early twelfth centuries. In any society where ransoming of captives taken in war was practised and where the lines of command were insufficient to ensure that all prisoners were automatically handed over to the prince, there must have been acceptance of temporary imprisonment at the hands of the captor while the captive worked out the means of acquiring the money that would secure his release. The very feature of conflict that Gillingham and Strickland have hailed as signalling the dawn of chivalry will also have enlarged the scope for imprisonment by private initiative and in private dwellings.4

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It was in the past too easily assumed by historians that the denunciations of churchmen like Orderic represented the view of the population as a whole in the eleventh and early twelfth centuries; in other words that there was consensus on the belief that public (royal or princely) power existed or ought to exist to punish the excesses of private greed and ambition, perhaps most obviously exhibited in aristocrats kidnapping other people. However, the recognition nowadays that strong rulers were at least as obsessed with their own and their families’ interests as were the aristocrats5 has meant that the clear-cut distinction once made between royal/public (meaning in the public interest and therefore legitimate) and aristocratic/private (meaning self-interested and therefore illegitimate) has begun to seem an expression of prejudice.6 Recent research influenced by anthropological studies and led perhaps by Karl Leyser’s Rule and Conflict in an early medieval society,7 has drawn attention to the tension between ruler-imposed justice (justice from above) and solutions to disagreements reached by arbitration between aristocrats or by feud; and has underlined the prevalence and social acceptability of the second model. The consequence is that modern historians feel, for the most part, less certain than did their predecessors that they can evaluate public opinion, particularly lay public opinion (for which there is almost no written evidence in the early part of our period). If it is admitted that aristocratic ways of settling quarrels by feud and arbitration had in some places an equal legitimacy with royal justice imposed from on high in others, then there may have been circumstances in which kidnap, as an almost certain concomitant of feud, was viewed as morally neutral. The issue then arises of whether the moral prohibition on kidnapping expressed by Orderic was as acutely and widely perceived in the eleventh as Salimbene thought it to be in the thirteenth century, or as obvious to the inhabitants of, say, southern France as to those of Normandy. If it appears that it was not, then no study of captivity can confine itself to the doings of great men or the inmates of castle dungeons. The seizure of one man by his neighbour, the self-help solution to a major quarrel, deserves inclusion in this study, even if only peripherally to the main discussion. Evidence from chronicles and letters put it beyond dispute that kidnapping of travellers and merchants by armed aristocrats was a common event in the eleventh, the twelfth, and even in the thirteenth centuries; examples are to be found all over the sources.

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The capture of Richard Lionheart in Austria may be discounted as an exceptional case, since it could be argued that by the end of the twelfth century crowned heads had no right to enter the domains of others without advertising their presence and their plans. More typical of the genre was the 2 days spent in prison as a suspected spy at Chatillon-sur-Seine by Gerald of Wales (scholar and unsuccessful claimant to the see of St Davids) on his way back from Rome in 1203; having no means of paying a ransom, he was fortunate in being released by the seneschal of Burgundy.8 At the beginning of the twelfth century the Benedictine abbot Guibert of Nogent seemed almost to take for granted the vulnerability of resident foreigners in his part of the world. Describing Gérard de Quierzy (soon to be murdered) as a man with a reputation for integrity far and wide, he commented en passant that Gérard had kidnapped two young German-speaking boys staying at a local convent under his protection and held them for ransom.9 It was apparently only what might be expected of a powerful layman. On the other hand, Guibert does tell us that Gérard had incurred excommunication for this. By the early twelfth century, churchmen at least clearly regarded such actions as wrong. The notorious attack by Censius on Pope Gregory VII on Christmas Eve 1075 in the course of a papal mass at Santa Maria Maggiore was inspired by hatred rather than the need for money. Censius swept his captive off to a tower at the other side of the city, perhaps intending to hand him over to the Emperor Henry IV, with whom Gregory’s quarrel had already begun.10 Had the Romans not rushed into a rescue operation, destroying Censius’ fortress and killing many of his servants, Gregory’s plight would have been serious. As it was, he returned in triumph to the city. The outrage Censius’ action caused was not forgotten for many years.11 The ground for condemning both Gérard and Censius was expressed in the various fragmentary Peaces of God, those much studied attempts, initiated by princes and by churchmen at intervals from the later tenth century onwards, to defend the weak and otherwise defenceless against the warrior class.12 In addition to prohibiting laymen from attacking unarmed clerics, women, children, and peasants, some Peaces protected merchants and travellers, the classes most vulnerable to armed robbery. Although initially individual lay aristocrats frequently disregarded ecclesiastical sentiment in the matter, refusing to bend to the threat of excommunication,

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there was growing legal pressure on them from both churchmen and rulers to desist from aggression in the course of the twelfth century. Attacks on clerics brought their perpetrators to face prosecution in the ecclesiastical courts. Attacks on merchants and travellers put them into the tougher grasp of lay jurisdiction. In Cambrai, for example, the legal settlement made by Bishop Geoffrey with the townsmen in 1227 laid down that the kidnapping of merchants was to be punished by death. 13 Great men had become increasingly aware during the twelfth century of the financial advantages to themselves that could accrue from protecting merchants. They looked to the example of the counts of Champagne who had enriched themselves by the establishment of fairs in the county, the provision of coin, and the policing of routes.14 Across much of western Europe the selling of safe-conducts for travellers and merchants became a lucrative affair. This was a sphere in which secular law fairly swiftly followed ecclesiastical sentiment. On the other hand, churchmen could not be counted upon to disapprove of all forms of kidnap. Brun, the historian of the Saxon wars, much given to denouncing the wickedness of his adversaries, nevertheless related with approval the forced abduction of the young Henry IV of Germany from his mother’s tutelage by Anno, Bishop of Cologne, in 1062; for Brun, Anno’s plans for educating the prince were so much better than those of the widowed empress that the end justified the means.15 Hermann of Salza, grand master of the Teutonic order, endorsed with enthusiasm the seizure of King Valdemar of Denmark by a German count in 1223.16 In practice, less exalted clerics themselves occasionally engaged in brutal kidnapping throughout the period, in strict defiance of all law.17 Interestingly, those of the eleventh-century Peaces of God that emerged primarily from ecclesiastical circles did not usually attempt to intervene between individuals in the sword-carrying (aristocratic) classes. Though the Truces of God, less common and even shorter in their effects, prohibited violence on certain days, they did not condemn it in principle; the aim was to sanctify particular times of the liturgical year. It is true that the monks and bishops who promoted the peace movement hoped to create on earth a fleeting semblance of the eternal peace that characterized heaven. But they accepted that at best it could only be fleeting, and deliberately limited their aims to this recognition. Preventing the kidnapping of one armed aristocrat by another initially lay outside their province.

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As to the lay aristocrats themselves, their right to fight their equals and do what they would with the defeated rival was a muchcherished privilege. In the eleventh and early twelfth centuries, over most of Europe there was no need to wait either for a superior court to be convened or for a king to declare war against his enemy for aristocrats to feel justified in settling quarrels by force of arms, if arbitration had failed or was unacceptable to one side. To be a member of the arms-bearing class was to be entitled to defend one’s person or one’s property as needed. Despite the crackdown on violence of all sorts attempted by many rulers in the late eleventh and in the course of the twelfth century, the aristocratic right of armed self-defence survived throughout the period. As late as 1283 Beaumanoir said that in the Beauvaisis gentlemen were permitted to sort out quarrels by arms, although the king or count could require them to make peace.18 By that time, however, fighting between French aristocrats had been largely restricted to the ritualistic setting of a law court, in the form of trial by battle. By the early thirteenth century it had been agreed in Cambrai that ‘no free man should fight another without a legal order from the échevins’ (the judges or officials in charge of procedure in the local law courts).19 In such places, full-blown private wars could legitimately be pursued only under the cover of a war declared by the king or a great baron. But in parts of Germany and in Italy, where attempts to restrict fighting had proved much less successful by 1300, the right of self-defence remained largely intact.20 Consequently for long periods of the high middle ages and in many parts of western Europe lay aristocrats accepted that, if defeated in a conflict, they might either be killed or find themselves in an enemy’s grasp, bound, perhaps even chained, until they yielded to the victor’s will, either by surrendering some disputed right or property or by paying a ransom. While imprisonment was obviously preferable to death, it injured a man’s dignity in making him vulnerable to pressure. There is enough evidence in the pages of Orderic Vitalis’ Ecclesiastical History for the early twelfth century to suggest that this was a reasonably common predicament, and that the captor did not always meet with total moral condemnation from his fellow laymen.21 He could, after all, be portrayed as generous in not killing his foe. That private imprisonment was taken for granted can be seen in Catalonia. Among the earliest surviving clauses of the Usatges of Barcelona22 are the following: that the compensation for putting

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a knight into shackles or leg-irons should be half his blood price (the price his relatives could exact from his murderer; wergild); that if the knight was attacked, beaten, wounded, put in an underground cell or held for ransom, the whole blood price was due; on the other hand if he was simply held under guard, suffering no insult or disgrace, and not for any great length of time, the captor was obliged either to submit and pay homage to his captive or must allow retaliation to an equal degree.23 In other words, a sharp distinction was made between conditions of capture regarded as injurious and demeaning to the status of a knight and those for which retaliation was regarded as adequate punishment. These clauses presumed that both parties were of equal rank. But if the captor was of higher rank than the captive – surely a very common case – then the captor was simply to provide a knight of equal rank to the captive either to make submission on his behalf or to suffer the required retaliation. The principle of retaliation here enunciated harked back to the Visigothic law codes, much appealed to in southern France and northern Spain in the course of the eleventh and early twelfth centuries.24 The retribution demanded was intended to create a level playing field between two parties, since each had suffered as much as the other, and therefore to encourage them to make peace. In fact the original victim will have suffered more, because he was taken by surprise, and did not know when he would be released. His revenge, if inflicted on a knight other than his captor, would not be particularly sweet. But at least he was allowed some. The point of these clauses of the Usatges was clearly to deter aristocrats from employing gratuitous violence or holding each other for ransom in underground cells. Unlike Gillingham and Strickland,25 the men who endorsed these conventions did not view ransoming as evidence of the rise of chivalry, but rather as a vice that caused social unrest. Interestingly, there was an assumption that the captor would wish, sooner or later, to put an end to the feud that his action would automatically instigate; the payment of the full blood money was a heavy exaction. While the clauses suggest aristocrats were tolerant to a degree of captivity conducted according to the mores of gentlemen, they were not prepared to condone it. The submission of the captor was necessary before peace could be proclaimed, even where the captive had suffered no corporal indignity. These stipulations imply that a group of knights and lords was meeting regularly, presumably in the court of the count of Barcelona,

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to regulate their own affairs.26 Because the violators of local custom were depicted as willing to submit to discipline, it can be deduced that exclusion from this group would have had serious consequences for individuals. Here, then, there does seem to be a genuinely normative prohibition on the use of excessive force by one armed individual to get what he wanted from another, and disapproval of less injurious forms of captivity. How effective the measures were if they were ever put into practice remains in doubt. By the time the Usatges were promulgated, Ramon Berenguer IV was already asserting his regalian powers. Later laws in the code accorded special protection to lords against capture by their vassals, while treating imprisonment as an appropriate punishment to be inflicted by the ruler (and apparently now by him exclusively).27 Catalan society had become fairly rapidly more hierarchical and more submissive to superior might. The days of unbridled kidnapping were presumably over by the late twelfth century. The area surrounding Montpellier suggests a more individualistic response to the problem of protecting aristocrats against kidnap. Around 1110, William V, lord of Montpellier, swore to his overlord the Bishop of Maguelonne: Listen to me, Walter, Bishop of Maguelonne. I, William of Montpellier, son of William of Montpellier, (swear that) from this time henceforward I shall not capture you, I shall not endanger your life or your limbs, nor shall my man or woman do so by my counsel or according to my plan.28

At roughly the same time, the count of Melgueil and his sister swore to William that they would not kidnap him or endanger his life or limbs; if anyone else captured him, they would have nothing to do with the kidnappers until William was restored to his liberty.29 Oaths of this kind, with specific mention of protection from captivity or from threats to life and limb, became common in the area. Unfortunately there is no chronicle evidence to confirm that kidnap was in practice common in Montpellier at that time. While a count bishop’s fear that he might be captured by a neighbouring lord seems natural enough, similar fears were expressed of the potential dangers posed by men of lower social standing. By 1130–49, the men (those who recognized his lordship) of William VI of Montpellier were taking a similar oath to him in the vernacular, specifically including ‘ni vos prendrai per preison’ (nor shall I hold

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you in prison).30 Here it is noteworthy that William regarded his authority over those who were in some sense in his service as so weak as to need bolstering by such an oath. But occasional instances of men imprisoning their lords certainly did occur in southern France throughout the period, including the capture and imprisonment of the Bishop of Gap by the townsmen as late as 1281. The possibility remained worth guarding against. The Montpellier oaths were distinctive in specifying prohibition on capture in addition to the promise found all over the rest of France not to harm the lord’s life or limbs.31 The aim of the oaths was directly preventative. The clause calling for the social isolation of kidnappers suggests both that the danger of a southern aristocrat finding himself imprisoned by one of his neighbours was a real one and that individual lords did not take the threat of ostracism lightly. Oaths could only be extracted from those who regarded themselves as in some way benefiting by the society of those to whom they swore. The implication would seem to be that in the Montpellier region there was no strong normative prohibition on kidnap, and therefore that individual promises were the best weapon that could be devised to limit it. It appears, then, that there were differences of opinion in different parts of Europe as to the legality of one member of the swordbearing class kidnapping another. Under tough kings like Henry I of England it was not tolerated – if Orderic’s evidence can be relied on. Elsewhere, various forms of deterrent were invented to prevent aristocrats from suffering regularly from capture. Yet the continuing reliance, even by 1300, on feud as a means of keeping the peace, in the Italian cities as in the German countryside, meant that kidnapping among equals could not be totally condemned. 32 It represented, after all, the best means that one party might have of forcing the other to accept its terms, and therefore of putting an end to further violence. Where equality of status between the parties existed, objections to private imprisonment might be muted. But just as, in different fashions, both in the Usatges of Barcelona and in the Montpellier Liber Instrumentorum Memorialium special protection was offered to lords against their own men, so within the family special protection was sometimes offered to fathers. The imperial landpeace issued at Mainz by Frederick II in 1235, just after he had imprisoned his son Henry for life, contained this remarkable clause:

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Any son who plots against his father’s life or viciously attacks him, wounding him or imprisoning him or laying him in any type of bond that one would call imprisonment, and is convicted for it . . . forfeits his legal rights and privileges for ever and may never regain them.33

Any of the father’s ministeriales who were convicted of assisting the son should suffer the same punishment for their treachery; but proceedings must be taken against the son before the ministeriales could lose their rights. The heavy sanction was presumably not just a reflection of the breach of the fifth commandment, or of Frederick’s own fears. It arose from the perception that lords were at their most vulnerable in the domestic setting, where they ought to have felt most secure. The existence of dungeons in their own castles might threaten their own safety as well as that of other people. To turn from the sphere of law to that of politics, in practice it might be difficult to differentiate kidnap from capture in war, even where war was in theory public, because small local quarrels were usually assimilated into the battles of princes. For example, Bernard Itier in his Chronique described the fighting that broke out in 1204 between the family of the viscount of Limoges and the inhabitants of Limoges, backed by the abbot of St Martial. The abbot, Hugh, was captured by Ademar the Young, brother of the viscount, and held for 20 days in his castle, before being released by his own supporters. Not long after, in revenge for the viscount’s imprisonment in Chinon, Ademar captured the abbot again, and made him produce 4 knights as hostages while he negotiated to raise the substantial ransom Ademar demanded.34 That this took place against the background of the war between Philip Augustus and John did not substantially alter the nature of the personal animosity that developed between Hugh and Ademar. The age-old habits of feud acquired new justification when subsumed in the enmities created by war between great princes. In peacetime, since not all feuds were between social equals, those below the rank of knight might find themselves caught up in similar predicaments. For example, at some time between 1101 and 1129, in the course of a feud between a knight of Chartres and the family of Albert Bernard and his brothers, the knight captured a member of the family, Herbert, son of Robert, who was engaged in trading for himself and his father, and had loaded his goods on packhorses. The knight was alleged to have held Herbert for a long time. When he

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did release him, he did not restore the goods to him, asserting that Herbert had already sold them before he was captured. The court of St Père de Chartres judged this to be a lie, and ordered the restoration of the goods to Herbert.35 The point of detaining Herbert was presumably so that the knight could sell the goods before anyone got around to questioning the transaction. It is notable that the court confined its judgement to the goods, leaving aside the issue of whether Herbert’s detention had violated the peace of the area or had inflicted unnecessary harm on him. The illustrations thus far provided suggest that, when individuals took the initiative into their own hands and captured their enemies, they rarely kept them for long. The mid-fourteenth-century Roman statutes laid down punishments for those who kept others for one hour or two hours in private prisons.36 Earlier incarcerations were usually of rather longer duration. But, whether because disapproval of such actions was so strong that men feared savage retribution, or because the chances of the prisoner’s escape were high, or because captives usually gave in very rapidly and paid up the ransom which was asked of them, such captivities usually only lasted a few days. The Chronicle of Morigny related that in 1118 Hugh du Puiset imprisoned his lord Milo de Montlhéry, kept him chained as long as he dared, and when he thought he could keep him no longer got himself out of his dilemma by suffocating Milo, and then creating the false impression that he had killed himself in the course of a botched escape attempt.37 The chronicler clearly assumed that imprisonment could not be lengthy. In this instance, Hugh perhaps reckoned his seizure of his lord was already a sufficiently grave offence to bring on him the punishment incurred by murder, and therefore that it would be more advantageous to stage a suicide than to wait for Milo to be set free by Hugh’s enemies. Alternatively, Milo may have proved so obstinate in resisting pressure that Hugh murdered him in exasperation. Milo was Hugh’s lord; Hugh’s sin was clearly great. He was guilty of treason to the man who had protected and patronized him. Whether, if Hugh had been Milo’s lord, he would have offended at all in imprisoning him would have depended on his motive in so doing. As we shall see in Chapter 6, a man who failed to fulfill the service demanded of him or who infringed on his lord’s prerogatives might well find himself imprisoned. One factor complicates the discussion of lords imprisoning their men: any moral limitations that

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may have been felt on such behaviour did not apply in the case of a lord disciplining his serfs. Those men and women who were deemed to be so economically and socially dependent on their lord that they had no right to leave his land were regarded as his moral responsibility, subject when they erred to such punishments as he thought fit. Since killing them was recognized as sinful and mutilating them might reduce their value to their master, chaining or imprisoning them for long or short periods was a sensible way of expressing the lord’s anger. A common reason for such treatment was that the serf had run away. An indignant letter from the bishop of Orléans to Philip Augustus, complaining that one of the canons of his cathedral had been captured, chained and put by an aristocrat into his dungeon, led the king to order the lord to set the canon free. In reply, the lord promised to produce witnesses that the man was his serf. 38 Here dungeon and chains were accepted by both sides in the correspondence as appropriate coercion for a serf who refused to admit his status; the only issue was whether the canon of Orléans was in fact such a serf. If he was, he well illustrates the twelfth-century phenomenon of rapid social mobility. He also demonstrates that once serfs stopped living in their lord’s household, they became difficult to distinguish from free men.39 Consequently a lord’s right to discipline his serfs may on many occasions have been exercised at the expense of a peasant who believed himself to be of free birth. A variant on this principle of lordly right was to be found in the Jewish community which, exempted as it usually was from ecclesiastical jurisdiction, had a corresponding power to discipline its own members for religious faults. This at least would seem to be the lesson to be drawn from the fine of one mark recorded in the English pipe roll of 1180 as having been imposed on Jeremiah, Jew of Dunstable, for imprisoning Isabelle, a converted Jewess.40 A punishment that would have been entirely appropriate in the case of a co-religionist, because Jeremiah had religious authority in the community, became illicit when Isabelle converted to Christianity, thereby removing herself from the sphere of Jeremiah’s jurisdiction. Yet this removal was itself presumably the crime that Jeremiah had hoped to punish. The comparative smallness of the fine suggests that the government of Henry II did not regard the matter as very serious. Leaving apart serfs, in general the sources suggest that fewer people were regarded as justified in kidnapping their neighbours in 1300 than had been the case in 1000, because in the intervening

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centuries rulers or possessors of jurisdictional powers had decreed such behaviour to be a breach of the peace. From the later eleventh century onwards, some rulers took the initiative in proclaiming the Peace of God across their lands, combining the protection of the weak and defenceless with the punishment of those who harmed them. To mention only a few of the most obvious examples, in the course of the later eleventh century in Normandy and in the empire, the early twelfth century in Flanders, and the mid-twelfth in Aragon and the kingdom of France, emperors, kings, dukes and counts proclaimed peace for their areas and broadened the original concept of the Peace of God to prohibit violence of any kind, whether directed against the weak or against equals. Fines for the infraction of the peace were levied, revenge was, where possible, channelled into prosecutions in court. For example, the peace of Laon of 1128 included the clause that if one man injured another he must pay the legal tariff, plus any medical expenses, to his victim; but he also had to pay a fine to the officials of the town for his breach of the peace.41 In the next century and a half, the punishments for the breach of the peace grew heavier and harsher, while compensation for the victim almost withered away. The implications for private imprisonment of this change in the law were clear. In later twelfth-century peace legislation for Aragon, the Usatges of Barcelona demanded that those who captured others should hand them over to the prince, who would compensate them for their trouble.42 Here, then, inducement was being offered to comply with the new royal monopoly. Arrest by individuals was still possible, but imprisonment was becoming a regalian right. In the Regno and in England, capturing others except as part of an organized hue and cry was clearly an offence; arrests were made by officials, imprisonment was restricted to royal or royally-authorized jails. Elsewhere, although private arrests might still be permitted, serious attempts were made to limit the time period in which a man could legitimately hold another in his own home. A few examples shed light on these developments. The Sachsenspiegel laid down that if a man was charged in his absence with a crime and a date for the hearing was set, should the plaintiff chance to meet the accused before that date, he was permitted to detain him until the accused had provided surety for his appearance. 43 The Parlement of Paris decreed that the citizens of Sens might arrest guilty parties (presumably those caught in flagrante delicto), but they were not

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entitled to imprison them until trial. They must at once hand them over to the royal bailli or prévot.44 In the 1280s, Beaumanoir said that in the Beauvaisis it was permitted to anyone to arrest a man suspected of crime, most obviously if he was fleeing before a hue and cry, but also if he was actually fighting. Indeed, it was a duty to help other men arrest suspects.45 Presumably the intention was that the arrested man be handed in to the jail as soon as possible, but this might not always be immediately. According to the Grand coutumier de Normandie, the man who effected an arrest should not keep the suspect in his own house for more than one night.46 Obviously all these laws imposed serious limitations on the right of private imprisonment. But they also reveal that families might, as late as 1300, still find the master of the household returning from the day’s work with a captive to be held on the premises, even if very temporarily. There could however be dangers for a Saxon in taking the initiative too boldly against a man he suspected of serious crime: If someone wounds or kills another and brings him bound before the court and wants to prosecute him for violating the peace, but does not complete the procedure, then he shall be indicted by the court for the injustice he did to that person.47

The evidence against the defendant had to be watertight before the plaintiff dared risk the predictable injuries that accompanied an act of arrest. Otherwise it would be he who would suffer for it. Despite the risk, the temptation remained strong. Unsurprisingly, the evidence from law cases suggests that the rules limiting private imprisonment were not necessarily obeyed, though disobedience could be severely punished. For example, a case before the Parlement of Paris tells of a certain Guillaume Montacute who captured a knight, burned his house, took his goods, and refused to hand him over to the bailli, despite having begun a legal action against his captive. That action was stopped; Guillaume himself was prosecuted for his breach of the peace.48 In the early part of the period, private imprisonment could also be a punishment that followed after legal condemnation. In the eleventh century in Flanders it was common to find condemned men being handed over to the kin of the injured party for such revenge as they might choose to wreak.49 Though this would often be mutilation (or death), it might be a form of enforced service. In the Usatges of

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Barcelona, it was laid down that ‘if anyone is proven guilty and convicted of homicide, let him come into the custody of the deceased’s next of kin and their lord.’50 These parties were free to do what they liked, short of killing the murderer. This implies custody of the guilty party, probably by the lord. The procedure illustrates the combination of a trial conducted by a royal official with the survival of private vengeance after the verdict. Presumably the next of kin and the lord expected to derive some profit from the condemned man’s service, as well as any pleasure they might get from exacting physical revenge. But this custom of handing the guilty party over to the injured one cannot have lasted long in Catalonia, since a later clause of the Usatges stipulated the requirement to deliver all prisoners to the prince, who would pay compensation for them.51 In Montpellier, the Great Charter of 1204 permitted an inhabitant of the town who had been injured by a stranger resident in the town who then refused to come to court, to wreak such vengeance as he cared on the stranger and his goods, after the council had expelled the malefactor from the town.52 Here, presumably, the vengeance would normally be taken in the form of physical violence; but imprisonment was possible. These were exactly the practices that rulers sought to stamp out because they feared the retaliation that might ensue; therefore by the later thirteenth century, such examples of private punitive imprisonment became very rare. On the other hand, private coercive imprisonment continued to flourish in some parts of Europe. Capturing debtors who failed to pay up was permitted. In Castile, for example, creditors could both arrest and keep their debtors – or even their debtors’ wives and children if the men themselves had absconded – until such time as they were repaid.53 In Montpellier, a debtor who attempted to flee from the town could be arrested and held in irons by his creditor until he paid up.54 A local creditor was free to constrain any foreign debtor in his person and in his goods, though if the stranger was a cleric, only his goods were at risk.55 Local bankrupt debtors were handed over to their creditors, provided the latter were Christian. The creditors were not obliged to sustain their imprisoned debtors unless the latter were starving.56 The implications of these clauses is that Montpellier merchants’ houses were sufficiently capacious to provide room for private prisoners as well as all the family, that such prisoners were reasonably common, and that arrangements for feeding a debtor might often rest with the debtor’s family in these circumstances.

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The Sachsenspiegel points to the same conclusion. A debtor who could not pay up might be handed by the court to the creditor as a servant and made to work until he had discharged the debt. It was up to the creditor whether or not he kept him in bonds, though he must feed him. 57 In Cambrai, if the debtor failed to pay up within 15 days of being arrested and put in jail, he would be handed over to the creditor to be held in irons or in bonds until such time as he had repaid both the original debt and the expenses the creditor had incurred for his imprisonment in the jail and his food within the creditor’s household.58 More curiously, in Lille the debtor held at home by his creditor was to be provided with a feather bed, fresh sheets every 2 weeks, and a coverlet to protect him from the cold. In the daytime he was to be allowed to sit in a room with windows facing the road, and to enjoy a fire, a light and a table with a table cloth and napkins for meals. One disadvantage of his state was that he had chains on each leg, one of which bound him to his guard. Another was that all his other creditors were encouraged to make claims against him at the same time. 59 In Venice, private arrests of debtors were legitimate, though not private imprisonment. 60 Beaumanoir took it for granted that a lord might imprison his indebted serf, but stated that the custom of the Beauvaisis otherwise only permitted it if for a debt to the king or the count, or where the debtor had previously stipulated in writing (presumably in the contract for the loan) that he might be arrested or imprisoned for failure to repay.61 It is unclear from what Beaumanoir said whether, in the latter case, the imprisonment would be private or in the town jail. Whichever it was, the creditor was responsible for feeding the debtor. Lest it be thought that the emphasis on the detention of debtors in private houses in the various law books was a reflection of their addiction to outdated habits, the townsmen of Compiègne successfully claimed their right to hold debtors before the Parlement of Paris in 1262. 62 In most cases (though presumably not in Lille), where the defaulting debtor was handed over to his creditor, the intention was for the debtor to cancel out his debt by working in some way for his temporary master, as the Sachsenspiegel reveals; it was a form of indemnificatory bondage.63 A world accustomed to serfdom regarded this as natural. Where the creditor drew profits from agriculture, he could always make good use of more labour. Yet these circumstances were becoming rarer by 1300. The demand that a debtor should work survived into

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the fouteenth century for those soldiers who found themselves unable to pay their ransoms.64 But by the later twelfth and the thirteenth centuries merchants, now the commonest creditors, had strictly limited requirements for household service in their town houses. In any case aristocratic debtors made poor servants, prone to violence. What the merchants wanted was a means of forcing their creditors to pay up. As will be shown in Chapter 6, in Italy (and in England) by 1300 ordinary imprisonment in the town jail was rapidly superseding forced residence in creditors’ houses. The legislation on debt reveals societies attempting to adjust to increasingly monetized economies, in which large numbers of ordinary men and women might face for the first time a decision on how much they could afford to pay for a loan, and later might discover how seriously they had miscalculated. Very high interest rates and sharp fluctuations in food prices made any such calculation difficult, even for the numerate and experienced.65 Debtors included men and women from all classes. The traditional means of dealing with the problem, enforced service, which assumed that landlords were the creditors and their peasants were the debtors, was now seriously out of date. But finding an alternative that worked was far from easy. A totally different kind of private imprisonment was that already mentioned in Chapter 3, the custody offered either to the accuser or to the defendant by his friends who stood bail for him; this in Normandy was called viva prisonia ducis Normannie (open prison of the duke of Normandy).66 In some cases bail will have had no effect whatever on the life of the party bailed; trust that the accuser or the defendant would present himself on the day of the trial would be normal between friends. On the other hand, if the charge was a serious one, the friends may well have been obliged to confine the accused. When Master Jacques du Mesnil was permitted to leave jail and committed into the hands of two knights, the knights were made to promise that if they failed in their duty to produce Master Jacques for his trial, they would accept fines so high that they might lose all their own possessions.67 In these circumstances it is hard to imagine that they permitted Master Jacques much freedom. By no means all those who were held captive by private individuals met their fate through kidnap; some were prisoners of war, others legitimately held for debt or even for crime. But even as late as the second half of the thirteenth century captives were apparently to be found in private dwellings. A clerk of Toulouse was accused of

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holding a converted Jew – apparently one of Alphonse of Toulouse’s clerks – in a private prison.68 Charles I of Anjou heard complaints that men of the Regno were being detained by aristocrats in private jails in the 1270s.69 Among the many crimes alleged of the citizens of Rome in the thirteenth century was the keeping of private prisons.70 It might be unwise, therefore, to underestimate the number of captives in western Europe by 1300 who languished in locked rooms of which the key was held by their neighbours. Ergastulum meant a store cupboard as well as a private prison; storage space could easily be converted for the temporary housing of one’s enemy. Richer of Reims told the story of how Hugh Capet’s men bundled an inn-keeper into a cupboard when they feared he had penetrated their disguizes.71 The growing sense that this was no longer acceptable meant that writing about it became rare. But for the period as a whole, private initiative cannot be discounted. In this respect, Foucault’s model, with its powerful emphasis on the state control of incarceration, offers no help to the medieval thinker about imprisonment.

6 COERCIVE CAPTIVITY

This chapter and the next are devoted to looking at imprisonment from the point of view of the captors; they attempt to plumb the motives that led men to confine others rather than (or as well as) to kill, mutilate, ransom, fine or free them. Thus they try to comply with Foucault’s rule that the historian should examine punishments in terms of the political tactics they embodied, though the kinds of political tactics discussed have little in common with those on which Foucault concentrated. ‘Keep out of prison and you will pass for a wise man.’1 So William of Paris expressed himself in the second half of the thirteenth century. But in the eleventh and twelfth centuries this was not easy advice to take. The rich and powerful were as obvious targets for those desperate for ransom money as were the vulnerable poor; and they were far more obvious targets for other forms of coercion. Effective avoidance tactics were hard to develop, especially for those who travelled or fought away from home. But staying put could not guarantee safety, as various popes, despite their spiritual authority, found to their cost. One of the most famous incidents in the early twelfth century was Henry V’s capture of Pope Paschal II and 16 cardinals in February 1111, which occurred when the king, accompanied by a large force, marched down to Rome to arrange for his coronation as emperor. This abduction, which caused profound scandal in Europe, took place at an assembly convened for the coronation. The assembly had been preceded by the publication of an agreement secretly arrived at 80

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between Paschal and Henry, on the vexed question of German episcopal possessions and lay investiture. The uproar that followed the publication, especially among German bishops who stood to lose substantially by it, caused the German ruler to act on the spur of the moment. By capturing Paschal and the cardinals, demonstrating the physical prowess of his army, and possibly threatening schism, he obtained from the Pope after 2 months term far more favourable to the German bishops and to himself than the original agreement had offered, in return for little more than the release of the papal party.2 His was in many ways a typical, if dramatic, act of coercion. Although Henry was not technically at war with the Pope, the weapon he had employed was commonplace in warfare. Without his huge escort, the capture would not have been possible; even with it, he encountered difficulties in effecting the escape from Rome. If Henry’s opportunism was unusual only in the scale of his enterprise, Pascal’s plight was typical of lesser men in his situation. He found himself isolated, unarmed, surrounded by soldiers over whom he had no control, and fearful that an antipope might be set up in his stead. His surrender was entirely predictable. Yet the incident of 1111 also demonstrates clearly the drawbacks of kidnapping. The indignation felt in Rome and in other parts of Christendom resulted in Henry’s excommunication and in his failure in practice to obtain the concessions (apart from his imperial coronation) he had wrested. Furthermore, the opportunity for settling the question of lay investiture that had caused trouble for some time now receded dangerously. While in the short term Paschal faced more vociferous criticism for his weakness than did Henry for his bullying, in the longer term the incident provided the new emperor’s growing band of enemies with an excellent propaganda tool. The decades before and after 1100 had seen many attempts at peace legislation in Germany, including the great Peace of Henry IV in 1103; unarmed clergy, along with women and sometimes peasants, were the chief beneficiaries of such attempts to limit aristocratic violence. Paschal’s ill-treatment in 1111 will have shocked Henry’s own countrymen. Not that the notoriety of this event, or indeed the increasing privileges they subsequently earned in canon law, preserved future popes or cardinals from imprisonment by secular powers intent on bending them to their will. It is still uncertain what would have happened to Boniface VIII in 1303 had not the people of Anagni decided to come

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to his rescue when he had been seized by Sciarra Colonna (nephew of the Colonna cardinals with whom the Pope was at war) and a band of French troops; but one much-favoured theory holds that the Pope was to be led off to France as captive of Guillaume de Nogaret (minister of Philip IV), there to be forced into convening a general council of the church at which his own deposition would have been pronounced.3 If this is a correct reading of the Frenchman’s aims, then Nogaret will have regarded his action as the equivalent of the arrest of any accused man to be taken for trial. But papal allies could hardly see it as anything but an attempted kidnap by a man bent on subverting the whole order of the church. It was notable that the future Pope Benedict XI who was present at Anagni adhered firmly to his excommunication of Nogaret when, in 1304, he declared Philip IV innocent of complicity in the terrible events. Contemporary chroniclers were surprisingly mute on the affair which historians have conventionally portrayed as the major turning point in medieval papal history; it must be assumed that both sides hushed it up, the Pope because he had been humiliated, the Colonna and Guillaume because they failed to achieve their aim. Their power of choosing the Roman pontiff made the cardinals vulnerable to similar though somewhat more ritualized pressure. After the death of Gregory IX in 1241, Matteo Rosso Orsini, the dictator of Rome, locked the venerable electors up in the Septizonium (the ruins of a first-century building) on the Palatine, in filthy conditions, in order to force them to elect a new pope quickly. 4 It was said that they had no means even of disposing of the body of one of their number, the Englishman Robert of Somercote, who died during the conclave. Three decades later, incarceration of the cardinals during a papal election was institutionalized by the Church itself in the highly controversial legislation of Pope Gregory X at the second council of Lyons in 1274: the princes of the Church were to be shut up all together in considerable discomfort, their food supply was to be cut down every day until they ended with nothing but bread, wine and water, so that they might stop squabbling and rapidly present their chosen candidate to the world.5 Humiliating though this arrangement was when put into practice, it was generally effective in forcing the quick surrender of factions. It was also less intimidating than other forms of imprisonment we shall consider, because the remedy for their plight lay clearly in the cardinals’ own hands, in an action that they would have to take sooner or later. On the other

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hand, as a form of coercion it did not differ in intention from that meted out to prisoners of war; and in terms of conditions, it was often more unpleasant than those important aristocrats suffered when they were held until they paid their ransoms. By the later twelfth century most princes of the Church no longer engaged in open warfare themselves – the Bishop of Beauvais, brother of Louis VII of France being a notable exception – although they might well get their relatives to do the dirty work for them, as did the Colonna cardinals in their war against Boniface VIII (1296–1303). But earlier, even popes had led armies, and even popes had suffered the indignity of imprisonment after defeat in battle. The Lotharingian Leo IX (1046–54) was captured by the Normans at the battle of Civitate in 1053 and held for almost a year in honourable confinement. Later Norman authors claimed this period as the time at which the Pope conceded the legitimacy of their rule over the lands they had already seized and also of those they would in future seize.6 More significant in the development of Norman power was Innocent II’s capture at Galluccio in 1139, which forced him to recognize Roger, ruler of Sicily, as king of Sicily and southern Italy. 7 In other words, capture of opponents in battle had the same effect as kidnapping – the creation of the opportunity to coerce an unwilling party into surrender to harsh terms. In this respect there was no real difference between great princes of the church and great secular princes. Innocent II’s plight in 1139 was exactly comparable with that of Thibaud of Blois, captured nearly a century before at the battle of Nouy by Geoffrey, count of Anjou. Following his father’s footsteps, Geoffrey had been pursuing the aim of annexing Tours, a town of vital strategic importance commanding one of the few easy crossings of the Loire. The scale of his victory in 1044 so impressed contemporaries that one chronicler said he took 1700 soldiers captive.8 Thibaud, doubtless suffering from shock, could not long withstand the pressure Geoffrey put on him. Within 3 days he had promised to hand over Tours and was released. But his most important henchmen remained in captivity for several months while the details of the peace were thrashed out and arrangements for the handover of Tours were made.9 Similarly in 1174 Henry II made highly effective use of his capture of the Scottish king William the Lion outside Alnwick in July. His decision to move William to the castle of Falaise in Normandy increased the pressure on the defeated monarch. There could be no hope of

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a Scots raiding party helping William to escape from Falaise. He had no alternative but to accede to Henry’s terms, harsh as they were. He paid homage as liegeman to Henry for all his lands, especially Scotland; he publicly submitted to Henry at York; and he handed over five Scottish castles as pledges for his good faith.10 It is hard to imagine that Henry could have won so much without being in control of the Scots king’s person. Both Thibaud and William were captured in war. Valdemar, king of Denmark, was on a peaceful hunting expedition when he was seized by the count of Schwerin, who held him until he promised to surrender parts of the Schleswig–Holstein borderlands recently acknowledged by Frederick II to be legitimately Danish. Although the captors had apparently won by this manoeuvre what they sought, plus a very large ransom, Valdemar reneged on his promise once freed, and it took a bloody campaign for the German princes to gain in practice what they thought they had won by cunning.11 In their eyes, kidnap was obviously a completely legitimate way of asserting what they regarded as their rights. To capture a close relation of an enemy king or prince could usually be very profitable, especially in the eleventh and twelfth centuries, because no family in the public eye could afford the shame of permitting one of their members to languish in jail if some degree of political flexibility would secure his or her release. So Philip Augustus’s capture of Philip of Namur, brother of Count Baldwin IX of Flanders, forced Baldwin to negotiate with the king to obtain his brother’s release and then to withdraw from his alliance with King John of England in 1200, a step he must have been reluctant to take.12 The implications of his withdrawal, both for Flemish and for English history, were profound; from then on, victory went all Philip’s way. However, victory for the captor was not the automatic result of any such manoeuvre, particularly in the later part of the period. Although the same King Philip kept his second wife Ingeborg of Denmark shut up in various castles for 20 years in order to force her to accept the annulment of her marriage and enter a religious order, strong papal support throughout the period stiffened her resistance. She held out relentlessly against the man she believed to be her husband. By 1213 Philip eventually gave in and restored her at least nominally to her position as queen of France. 13 Here he bowed to ecclesiastical opinion; no king of France was entirely happy when under threat of excommunication.

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Papal influence was also crucial in another event that illustrates the limitations of imprisonment as a means of coercion. When Charles of Salerno, heir to the Angevin dominions in southern Italy and to the counties of Provence, Anjou and Maine, was daringly taken prisoner by Roger Lauria in the bay of Naples in 1284, shortly before the death of his father King Charles I, 11 years of hard bargaining followed before terms were agreed between the king of Aragon, the regency government in Naples and the Pope. Charles’s own release from the Aragonese prison occurred in 1288, but three of his sons remained in captivity as hostages until the treaty of Anagni was ratified in November 1295. The willingness of the Angevin court to tolerate this lengthy period of imprisonment for the heir to the throne and his brothers may be ascribed in part to confidence in the civilized behaviour that would, by the late thirteenth century, almost certainly prevail in so public a case; they could trust the king of Aragon to treat his prisoners well. But it should also be attributed to the determination of the popes not to make concessions; Charles of Salerno himself was far more willing to surrender to Aragonese demands than the popes, safely in Rome, would allow.14 On the one hand, the captive Angevin princes were an important pawn for Alphonse III and James II of Aragon. From 1284 onwards, total papal inflexibility in face of Aragonese demands was not an option. But, as it turned out, James II secured considerably less by 1295 than the Aragonese must have hoped to achieve in 1284. It almost seemed as though, the longer the princes’ imprisonment dragged on, the less relevant to the final outcome of negotiations it became. They had to be freed at some point; the patience of Charles II deprived Alphonse and James of some large part of their advantage. These famous examples in the field of high politics were mirrored endlessly in smaller conflicts. Effective coercion could be applied after much less dramatic victories than Nouy, Alnwick or the Bay of Naples. For example, according to William of Poitiers, in 1025 Fulk Nerra imprisoned Herbert of Le Mans at Saintes until he conceded lordship of the county of Maine to the house of Anjou.15 The pages of Orderic Vitalis’ Ecclesiastical History contain many examples of lords capturing their enemies with the specific intent of wresting from them strategically important castles.16 These were the everyday events of warfare in the first two centuries of the period. There could be odd variations on the theme. For example, Duke William of Aquitaine, supposedly acting as guardian to Count Fulk the Young

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of Anjou, abused his privilege by treating him as a captive until he agreed to hand over certain castles on the Aquitanian border.17 Louis VI first judged Hugh du Puiset guilty of plundering the church and the poor, then attacked his castle, razed it to the ground, and bore Hugh off in chains. Before Hugh was released from prison, he had to promise to give up his claim to the castle of Corbeil and to stop imposing taxes and obligations on the churches and monastic houses in his neighbourhood.18 Unfortunately for the king, the effect of this piece of coercion proved to be of very short duration.19 Hugh was soon back at his old ways. The success rate of coercive captivity, though high, was not high enough to make it a foolproof method of attaining one’s ends. Hugh du Puiset’s case demonstrates the point already touched on in the Introduction, that it was difficult before the later twelfth century, and in many cases after that, to distinguish prisoners of war clearly either from criminals or from victims of kidnap. While Suger in writing Louis VI’s biography, portrayed Hugh du Puiset as a condemned breaker of the peace and destroyer of ecclesiastical wealth, Hugh almost certainly regarded himself as the victim of unjustified royal aggression, in which opinion he would have had the backing of a number of French barons. In his eyes, he was simply exploiting established customs in his own favour. Therefore Hugh’s imprisonment, which was to Suger the arrest of a criminal, was to Hugh a kidnap by his enemy in the course of a private and unjustified war waged against him. In a period in which it was accepted that quarrels between aristocrats that could not be settled by arbitration should be so by force, and where wars were usually only personal feuds writ large, distinctions of category among captives can only be arbitrarily imposed by historians. There was an understandable tendency to view the other side in such a war as composed of criminals who had failed to respect established rights. John of Marmoutier telling his famous story of the Poitevin knights,20 made it clear that Geoffrey le Bel regarded himself as entitled to hang them for invading his territory; though he chose on this occasion to exercise mercy, he absolutely refused to see the knights as faithful servants of his opponent in a public war.21 While by the thirteenth century the Roman law-derived notion of a public war was current almost everywhere, it did not in many cases make it easier for all parties to agree on whether a man was a prisoner of war or a criminal. For example, Edward I entertained no

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hesitations about treating William Wallace as a traitor on his capture near Glasgow in 1305; but Wallace and his sympathizers denied that Edward was his feudal lord to whom obedience was owed. In their eyes, it was Edward who was the criminal.22 Whether or not aristocrats treated their captured enemies as criminals, for practical reasons they nurtured a convention of only slaughtering the most hated of them. It made sense for a prince to keep an important captive in order to exchange him, should a highranking supporter of his own side be unfortunate enough to fall into the hands of his enemies. On occasion such exchange could have dramatic political results, as when the men of Hainault were unable to capitalize on their victory and capture of Robert the Frisian, the usurper of the Flemish countship, at the battle of Cassell in 1071, because news was brought to them at the same time that the Flemings had seized their countess Richilda; they were thus forced into an immediate exchange that left Robert in control of Flanders.23 At a lower social level, prudence also instructed princes not to waste precious resources. Initially knights and then by the thirteenth century ordinary trained foot soldiers were perceived as too scarce to be slaughtered without thought. Exchange of prisoners came to be a standard clause in peace treaties of the thirteenth century.24 Usually this could only be effected at the end of many months of war; those who endured tedious imprisonment could not be assured that their own side would secure enough prisoners to obtain their own releases. But at least they had some hope of escaping from their miserable confinement. The calculations of a military commander came to embrace the possibility of wholesale imprisonment of enemy soldiers as a means of depleting the opposition’s forces, while creating the opportunity for his side to open peace negotiations from a superior position. As important as princely strategies was the widespread desire among warriors for self-enrichment. The realization in the later eleventh century that most men of knightly status or above either possessed or could raise enough money for substantial ransoms rapidly led to a difference in the treatment accorded to them. Robert of Torigny recorded that during his Norman campaign in 1152 Henry II sorted out the 20 knights from among his captives and imprisoned them; the 40 archers he had executed.25 In this he set an example that was widely followed by lesser lords. As knights grew richer, so ransoming assumed an ever growing importance in

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warfare. By the later twelfth century able knights like William Marshal could fill their purses from the ransoms they obtained at tournaments, the twelfth-century rehearsals for war.26 Since this subject has been extensively treated in much recent literature, there is no need to say more about it here. Ransoming prisoners of war should, however, be recognized as an aspect of a broader phenomenon, the financial coercion of those temporarily at the mercy of their captors. This was a practice common all across Europe. It is true that, over time, rules developed to protect those taken in battle from the worst aspects of ransoming that faced non-combatants. For example, by the fourteenth century it had become standard practice to permit captives to return home to collect the money due; captors could by then feel confident that their ex-prisoners would reappear with their debts, because if they failed to do so they could be prosecuted before courts of arms.27 But these courts only came into existence in the mid-fourteenth century; before that time, oaths or hostages had to act as guarantees for any temporary release that might be negotiated. Captives could not presume too readily on their host’s good will or his greed; vengeance was still an important element in their treatment, as was made plain by Richard Lionheart’s bloodthirsty attack on the defeated troops of Aimer, viscount of Limoges, in 1183.28 In contexts other than that of the battlefield the practice of ransoming has been condemned as the brutal process it usually was. St Foy released a captive called Rainold who was being moved from one castle to another where conditions would be worse because his captor, the warrior Deodat, wanted to extract more quickly the ransom he had demanded. 29 Orderic Vitalis, describing Hugh of Gournay’s rebellion against Henry I, spoke of how he and his confederates Went out on distant forays in the winter nights, captured knights and peasants with their wives and even infants in cradles, and extorted huge ransoms from them by brutal imprisonment.30

Capturing merchants, travellers, rich young boys, to extract money from their friends and relations for their release was a crime regularly criticized by disapproving clerical writers as a sin characteristic of their lay counterparts. Among the early miracles of St Foy was the release of a pilgrim from the Limousin, captured for ransom at

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Turenne. 31 According to Suger, Hugh du Puiset imprisoned the richest people attending a market by the ruins of his castle;32 his aim was presumably to fleece them of their wealth, which he could then use to rebuild what had been destroyed. As late as 1188 count Raymond of Toulouse was accused of seizing Aquitanian merchants, blinding and castrating some and imprisoning others, presumably to get ransoms from them. 33 It was this widespread habit that was solemnly condemned in Peaces of God, among them the Rhenish– Franconian peace of 1179.34 But persuading armed men to give it up was extremely difficult, because it brought its perpetrators a welcome boost to their incomes almost immediately, while other, more legitimate, methods of raising money might take time. Where the captor was the lord and the victim one of his peasants, the practice of demanding money for release was not always strictly a ransom, despite its frequent portrayal as such. One of the earliest miracles of St Leonard involved the freeing of an inhabitant of Noblat from the dungeon of a ‘tyrant’ who hoped to secure a ransom of 1000 solidi for his release.35 In the lord’s eyes, the peasant was probably a delinquent who had failed to pay the sums he owed his lord in fulfilment of various obligations (1000 solidi was presumably a figment of the author’s imagination); in the peasant’s eyes, the lord was appealing to malae consuetudines (evil customs), which were either of very recent invention or else in themselves so unjust as to be indefensible. The ability of many twelfth-century peasant communities to win enfranchisement from malae consuetuedines – though often in return for a high annual fixed payment to the lord – argues for lords finding it more difficult to defend any arbitrary exactions by the second half of the twelfth century.36 In the case of the inhabitant of Noblat, the lord’s choice of captivity rather than mutilation or whipping for chastising what he saw as the recalcitrant peasant was dictated by his immediate need for money or crops. The tactic would have been pointless had the man chosen for such treatment been living at subsistence level. Creaming off surplus peasant wealth was an activity suited to a period of economic growth. That divine escape of peasants from their lord’s chains should be so frequent a motif in miracle stories – Sigal has counted 98 cases relating to men and 2 to women, mainly in eleventhcentury sources37 – is not in itself convincing proof that pressurizing peasants in this way was commonplace. But the story’s resonance among those who listened to the monkish guardians of the saints’

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reputations suggests that many could easily envisage the circumstances, at least in southern France and Catalonia. On the other hand, the growing ability of peasants to defend themselves is attested in the clauses in charters of liberties like the charter of the abbot of Nonantola for his tenants in 1058, which promised them security from excessive rents and all aggression,38 or that which Louis VI confirmed for the men of St Martin des Champs,39 which laid down that arrests must be only on legitimate grounds. Imprisonment as a means of ensuring that all services owed to lords should be paid in full went back a long way. Evidence from Yvo of Chartres’ letters has been produced to argue that, at least in parts of France in the later eleventh century, lords were entitled to imprison their own men, that is the men of their household (not just the serfs) and perhaps their tenants whether peasant or knight, to get what was due to them.40 By the time of Philip Augustus, imprisonment of men who invaded their lord’s hunting privileges was apparently common.41 At the same time, an inquest revealed that the count of Flanders had arrested any foreigners who tried to settle in his fief at Chauny, so that he could prevent his knights from receiving them. Thus he preserved his own monopoly of settling new men. Only the lord of Chauny was exempt from the operation of this forceful demonstration of local lordship.42 Presumably in such cases the putting of the offender behind lock and key was a ritual designed to enforce compliance rather than a form of punishment in itself. Interestingly, an early version of the Usatges of Barcelona suggests that in the wilder regions of Catalonia in the first half of the twelfth century, turning tables on one’s lord by capturing him was not uncommon. As part of peace legislation, it was laid down that those who had ambushed and imprisoned their lords might in compensation be held in their lord’s prison until they were thought to have atoned adequately for their action.43 There was here no suggestion that the retaliation should be limited in extent to the length of time the lord had endured. Insolence of this type was often much more harshly punished in the thirteenth century, and therefore became distinctly risky as a coercive measure against superiors. Nevertheless the people of Gap imprisoned their bishop in 1281, and in January 1284 the Romans imprisoned Charles of Anjou’s extremely unpopular vicar Guillaume de l’Etandard, in the course of their successful rebellion against Angevin rule which had begun when they heard the news of the Sicilian Vespers.44 As a means of enforcing popular demands, the

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strategy could hardly be bettered, provided that it did not provoke a harsh reaction. The difference between the usual victim of coercive imprisonment that we have been discussing thus far and a hostage was that the hostage was, at least in theory, an innocent third party to a transaction, whose sufferings as a captive were designed to put moral pressure on his friends and relations either to make peace with their enemies on unfavourable terms or to keep the promises they had already given to their enemies. In other words, a hostage was a pawn offered into captivity by the weaker side as a form of guarantee. Such unfortunates continued throughout the period to constitute an important category of prisoner, though their numbers may have declined somewhat in the later thirteenth century, as kings began to demand parcels of territory (including their inhabitants) rather than individuals, as guarantees that promises would be carried out. For example, the people of Flanders in 1304 were required to cede Lille and Douai to Philip IV as security for the payment of compensation for war damage inflicted on France. On the other hand, when the people of Lille earlier in the same year made their own separate peace with Philip, they handed over 40 hostages in the traditional way. 45 Where hostage-taking was a preliminary to a peace-making effort, those chosen for the purpose were usually men of sufficient stature to make their own side willing to accept otherwise unacceptable terms rather than prolong their suffering. If, however, they failed to achieve this, the hostages’ plight could be pitiable, as is well illustrated in a letter of Jacob, abbot of St Just, held by the people of Asti, to Philip, archbishop-elect of Lyon, begging the archbishop to sign the suggested peace with the men of Asti, because he and his fellow hostages would be as good as dead if there was delay.46 The unflattering comments on Philip’s faithlessness in the letter were presumably inspired by his captors’ view of the matter, which may suggest that the abbot was writing under duress. They were, however, not calculated to soften Philip’s heart. The public ill-treatment of large numbers of lesser hostages could be designed to scare the defenders of a besieged city into submission. So, according to the second author of the Song of the Cathar wars, Simon de Montfort had 400 hostages seized from the area around Toulouse in 1216, and his men led them away under the eyes of their relatives:

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Heaping them with threats, with foul taunts, affronts and insults, and disperse[d] them to foreign lands. In heavy irons they go, in chains, suffering grief, distress and pain, the living and the dead all bound together.47

That cruelty of this kind may have been common is perhaps to be inferred from one of the clauses of an agreement made between the count of Melgueil and William, lord of Montpellier, whereby the count agreed to provide 50 hostages for William as security that he would in future keep the peace with him; he also undertook that if any hostage died within 40 days, he would replace him. 48 While this may mean that a high death rate among hostages was only to be expected, an alternative explanation is that the practice of giving as hostages men already in feeble health was common. If so, the lord of Montpellier hoped to circumvent it. In general, hostage-taking showed medieval rulers and lords in an implacable and heartless light. It is surprising that there was not more overt criticism by clerics of the harsh treatment so frequently meted out to such people. But they may have noticed only the comparative comfort usually enjoyed by hostages from the highest social circles. Hostages were by no means exclusively taken in war or given to make or seal a peace. In the Dauphiné a man who had acted as a guarantor for his friend was obliged, when the friend defaulted, to work as a hostage at the creditor’s house to cover the debt. It was fortunate for the generous sufferer that 3 months was the limit of captivity permissible. Richard Lionheart’s release from Henry VI’s grasp in 1194 was only effected by leaving in his place important hostages, including the future archbishop of Rouen, Walter of Coutances, who were obliged to remain in Germany until the huge ransom was paid off. Here, as in the Dauphiné, money owed by one man to another led to the temporary loss of liberty of a third party. The enforced residence of the young heiresses Jeanne and Marguerite of Flanders at the court of Philip Augustus after the death of their father Baldwin IX in the Byzantine empire in 1205 was hostage-taking of a more traditional sort, a symbol of claimed and effective lordship, such as had been practised commonly two centuries before.49 It brought King Philip immediate gain, in that Flanders, long a thorn in his side, was temporarily subdued to his will; but it did nothing to overcome the deep-rooted hostility that was to emerge again in the county in 1213. In so far as Philip was trying to prevent future trouble by taking the girls into his care, he

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was extending the use of securities. His contemporary King John of England, hearing rumours of a plot against his life in 1212, took hostages from the families of many of his important barons, again as a preventive measure. 50 In the same way, representative members of any group held to be guilty of crime or thought to be planning to carry one out might be taken hostage as a means of forcing the whole group either to atone for what it had done or to put their plan out of their minds. The records of the Parlement of Paris show that some chosen rich burgesses of Bourges were put into the royal prison in that town in order to make the citizens as a whole pay compensation for an attack on the papal legate who had been staying with the archbishop of Bourges.51 Similarly, some burgesses of Chartres were thrust into the royal prison at Nogent in 1256 in order to force the body of townsmen to swear that they would not harm the canons of the cathedral; their threat to do so had so scared the canons that they had run away from Chartres.52 In both cases the townsmen were battered into submission by this tactic. Here, hostage-taking and straightforwardly coercive imprisonment became almost indistinguishable, because the sufferers shared the guilt or alleged guilt of the whole group. The most frequent acts of coercive imprisonment, designed to make the victim concede either political advantage or ransom, occurred in the eleventh and the twelfth centuries. They could be found in every geographical area and among all classes of people. But towards the end of the twelfth century, the circle of those able to apply this kind of pressure diminished. The reasons for this are manifold, and some have already been mentioned in other contexts. Castles became too expensive for any but the wealthy to maintain; therefore their possession was increasingly restricted to kings, greater aristocrats, and those officials subordinate to them. Outside Italy, the rulers of towns were usually successful in razing the urban towers that had facilitated kidnap. Both these changes made it harder for lesser lords to impose their wills on others. At the same time, in large parts of Europe there was diminishing tolerance of the practice of feud, a successful attempt to restrict it to the upper classes, and among them to confine its manifestation to judicial duels. This reduced the justification for taking captives. But most importantly, with the development of rulers’ interests in suppressing violence, those who tried to imprison others illegally might find themselves prosecuted for breach of the peace.

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At the same time, there was a growing belief, derived from canon law (for example the law requiring free consent of both parties to a valid marriage) and from teaching in the confessional, that promises made under duress should not bind. Where others had imposed commitments upon a man by force and against his will, he should not be held to them. In practice the process whereby release from such commitments might be obtained varied. Those of higher rank found it easier to get an ecclesiastical or imperial dispensation which explicitly nullified their promises. After his nineteenth months’ captivity by the men of Asti, Thomas of Savoy was quickly able to prevail on the titular emperor Richard of Cornwall (to whom he was related by marriage) to dispense him from the terms of the treaty he had made while still a captive.53 That lesser men could not afford to acquire similar dispensations did not debar them from benefiting to a certain extent from the doctrine that lay behind them. Beaumanoir’s Coutumes du Beauvaisis laid down that anyone who made promises while in prison would be automatically discharged from them if he applied to a court within a year and a day of his release.54 While this was only a local custom, it points to a cast of mind that was widely diffused, and that threatened to undermine the value of imprisonment as a means of coercing anyone to make concessions. On the other hand, Beaumanoir himself provided an example of a court using imprisonment to coerce someone who had alleged that a document was forged; he was to remain a captive until he had either accused someone of the crime or withdrawn his allegation and paid a fine for having made it.55 Though the number of persons able and willing to apply coercion by imprisonment declined sharply in the later twelfth and thirteenth centuries, those who succeeded in consolidating their power continued to find it an excellent means of getting what they wanted, despite any scruples that may have been felt about the method in general. For example, the papal rector of the Romagna imprisoned the syndics of Rimini and Ravenna in 1287 when they refused his request for troops and money made at a parliament at Imola.56 Similarly the kings of England and France and to a lesser extent those of the Regno used imprisonment as a means of ensuring that they made the maximum financial profit from the Jews within their realm. By the later twelfth century, Jews were regarded in all three realms as under the special protection of the crown. For this protection they were required to pay heavily. If they failed to do so, they

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faced arrest and sequestration of their goods. Initially, individuals suffered from this treatment, but later whole communities of Jews could find themselves in jail.57 The tactic, though very successful in the beginning, finished by impoverishing the Jews in both France and England. Finally, both Edward I and Philip IV decided to expel the now almost bankrupt Jews from their respective realms. In Chapter 5 the private imprisonment of debtors in some jurisdictions was discussed. What to do about debt was a question that faced all political powers and communities. At a time of rapid growth in the amount of coinage in circulation and an increasing tendency for rents or dues in kind to be translated into cash renders, men of all classes might find themselves desperately short of money. In this environment, money-lending accelerated across western Europe, to the point where, by the later thirteenth century, important banking houses had emerged, led by Italian or Cahorsin families.58 The great achievements of the ‘commercial revolution’ of the twelfth and thirteenth centuries and the huge fortunes some men built up were balanced by the growth in indebtedness among others. If all that prevented the debtor from repaying his debts was his own unwillingness, then distraint on his possessions was the normal way of forcing him to do so. But this measure might not yield enough to cover the debt; or, in the case of a foreigner, his possessions might not be accessible for distraint. Where bondage was seen as inappropriate, either because it failed to address the requirements of the creditor or because it was viewed as potentially dangerous to the peace of a community, there was no alternative remedy open to the creditor but to imprison the debtor in a royal, official, or urban jail. But if the debtor’s problem was a genuine absence of cash, this course of action might prevent him from earning anything to repay his debts. What was intended as a coercive measure might end by ruining him while offering nothing to the creditor.59 Legal customaries began to mention imprisonment as a means of obtaining repayment for debt in the course of the thirteenth century. As has been remarked, Beaumanoir took it for granted that a lord might imprison his indebted serf, but stated that the custom of the Beauvaisis otherwise only permitted it for a debt to the king or the count, or where the debtor had previously stated in writing (presumably in the contract for the loan) that he might be arrested or imprisoned for failure to repay. 60 In other cases, the debtor’s labour might be exacted to compensate for losses.61 Philip IV, attempting to win

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favour from his subjects in 1303, ordered his officials that they should not permit imprisonment for debt except in cases where they received a letter with the royal seal authorizing it.62 In the Mediterranean world (as in England) there were fewer inhibitions on the matter. Most Italian towns began to abandon the older method of handing the debtor over to the creditor in favour of imprisonment as a means of recovering debt. In Siena and in Florence rooms were set aside in the prison for debtors.63 This may reflect the greater importance attached to creditors’ rights among citizens who made their money by trade than among dwellers in the French countryside. It would be interesting to know how many Italian jailers followed the habit of the jailers of the Fleet in London, in letting debtors out during the day though demanding that they spent the night in jail.64 There is at least a hint that this was the custom in the Regno 65 (pernoctating was a frequent condition set for high-ranking hostages, which may have provided a model for this). Where this was permitted, or where the official eye was closed when it occurred, the debtor might either earn some money or raise loans from others during his daytime excursions. Where there was no chance of leaving the prison temporarily, the outlook for such a captive, especially one without family to help him, could be grim. Pernoctating was therefore in everyone’s interests, provided the jailer’s permission could be obtained at a reasonable price; yet the sources do not suggest that it was frequently offered to debtors. Though available to far fewer people in 1300 than earlier, coercive imprisonment remained an important weapon in the armoury of kings and great princes. Their power was displayed at its most forceful when they threw into jail a person who had dared to defy their orders or when they arrested whole communities as a means of enriching themselves at the expense of others. Nevertheless even they could not afford to make themselves unpopular with too many sections of the societies they ruled, or at least not too many at once. The Jews were vulnerable to the terrible treatment accorded to them only because they could muster little sympathy among the other inhabitants of England or France. Neither barons nor townsmen could be bullied too far; the threat of rebellion was not to be contemplated with equanimity. The safest, as well as the most productive form of coercive imprisonment therefore remained that which succeeded a great victory in battle, whether over rebels or over foreign enemies. In these circumstances the victor’s demands were

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mitigated only by the measure of reasonableness that papal legates might be able to inject into them if the Pope chose to intervene (as, for example, Pope Clement IV did after Henry III’s victory at Evesham in 1265). Otherwise, to be completely trounced in a battle by a ruler who knew the rules was usually to have to surrender completely to his terms.

7 CUSTODIAL AND PUNITIVE CAPTIVITY

It is not easy in practice to draw a clear line between coercive and punitive forms of imprisonment. Beaumanoir’s comment that prison was normal for debtors to count or king1 certainly revealed an official intention to make the debtors pay up; but it also aimed to punish them for their temerity in delaying payment to men of great political consequence. Here the distinction between debt and crime became blurred. Similarly, in the eyes of Charles I of Anjou, those who defaulted on the heavy taxes inflicted on them in the Regno could legitimately be imprisoned as if they had offended against the law.2 This was one of the circumstances in which the possessors of solidlybased political power used the rhetoric of ‘public utility’ to differentiate themselves from other creditors; the people must pay taxes to their rulers so that the rulers might forward the common benefit, as St Thomas Aquinas taught in the schools.3 Therefore, failure to pay was an act detrimental to the common welfare, deserving of harsh punishment. Where principle could less easily be called in justification, powerful men whose anger was aroused by the actions of others might see in imprisoning them both a means of enhancing their own possessions and a way of wreaking revenge. In the middle of the eleventh century Geoffrey Martel, count of Anjou, held Gervais, bishop of Le Mans, for 4 years because the bishop had arranged a marriage hostile to Geoffrey’s political endeavours.4 That this was both a punitive and a coercive action became clear when Geoffrey demanded the castle of Lir from the imprisoned bishop, and did not let him go until he 98

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eventually obtained it. While displaying his wrath in a relentless and public form, the count also derived for himself a concrete advantage. More purely punitive was the right of a lord to discipline his household servants by incarceration. When the bishop of Beauvais imprisoned some of his men in a royal castle because they had injured servants of some merchants of Rouen in the neighbourhood, he was venting his wrath against dependants who had injured his own reputation as a good lord. There was no suggestion that the culprits were serfs. Had they been so, royal justices would not have intervened to release them once the wounds they had inflicted on the merchants had been seen to have healed.5 The incident shows the king’s officials accepting the bishop’s right to imprison in such cases, but also limiting its effect by fitting the punishment to the crime in an unusually vivid way. An extension of this right, and one more frequently visible in the records, was the imprisonment of onetime royal servants who had failed to carry out their master’s orders, or who were being made scapegoats for their master’s miscalculations. One of the charges Henry I laid against Robert de Bellême in 1112 in justification for imprisoning him for the rest of his life was that Robert had failed to render account for royal revenues when acting as the king’s viscount.6 Imprisonment became the standard way of dealing with financial agents who were suspected of allowing money destined for the royal coffers to stick to their own hands. For example, Frederick II in 1233 imprisoned his master of the chamber, two judges and two notaries of the Regno.7 These examples suggest that rulers regarded those who performed administrative tasks for them as being almost on a par with their serfs. They often were, or at least had been, members of the royal familia (household), that elastic term that could be extended to include all those who stayed for any length of time at the royal court and benefited by royal hospitality, as well as the regular domestic servants.8 As with serfs, temporary imprisonment was the most effective way of demonstrating that administrative officials had incurred the wrath of their employer, without impairing their efficiency should they be needed later. The measure achieved humiliation and shortterm misery for the victims, a sharp lesson for their companions, and a sense of authority well exercised for the rulers. Similar treatment could be extended to paid workmen who did not carry out the task for which they had been employed. Charles I of Anjou demanded the imprisonment of labourers who had failed

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to get on with building works in the castles of the Regno; they should remain there on bread and water for the number of days they had wasted. If they could not be found, then their wives and children should take their places behind bars.9 Here, too, the point was both punitive and exemplary: to terrify others into compliance with the royal will. Such actions were increasingly typical of the style of rule that emerged in the monarchies of later thirteenth-century western Europe. Most officials judged to have been delinquent suffered only temporarily. But some met a much worse fate. If Salimbene is to be believed, the archbishop of Ravenna chained and imprisoned his chief administrator, leaving him to be eaten by rats for no worse offence than to have wasted his master’s goods.10 The cruel imprisonment in 1283 of various members of the della Marre and Rufoli families, tax-gatherers of the Regno, was motivated partly by anger that they had made their employer very unpopular, and partly by the belief that they must have been enriching themselves at the monarch’s expense. 11 Their conditions in jail were so appalling that the regency government of the Regno feared one of them might die before being brought to trial. Both the archbishop of Ravenna and the regents of the Regno were convinced on these occasions that they would never again need the services of those they thrust in irons. They could afford to banish mercy from their minds. Less satisfactory for rulers was the combination of custodial and punitive imprisonment they were driven to when attempting to deal with a serious crime committed by someone politically too important to be hanged or executed in the normal way. So in 1124 Henry I of England threw Hugh de Montfort ‘guilty of the most serious crimes with no justification’ into prison for at least 13 years to suffer for his treachery.12 Here long-term imprisonment was resorted to because no acceptable alternative presented itself; Henry did not wish to cause an outcry by executing so important a man as Hugh, despite his support for Waleran de Meulan in his rebellion. To hang the delinquent castellan might well cause serious unpopularity for the king in Normandy. On the other hand, the royal wrath had to find some striking form of expression, because Henry had brought up Hugh at his court and conferred many favours on him before this act of marked disloyalty soured relations between them for ever. Here, then, custodial and punitive imprisonment blended in a fashion that was to become commoner in the later twelfth and the

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thirteenth centuries. The list of great men who suffered prolonged imprisonment when judged guilty of crimes that, if committed by lesser ones would have deserved death or mutilation, was lengthy. In 1235 Alexander II of Scotland condemned Thomas of Galloway to imprisonment in Barnard Castle for his part in the revolt of the Gallovedians; it was not until 60 years later, as an old man, that he was released by Bishop Antony Bek of Durham.13 Charles I of Anjou kept Henry of Castile, half-brother of the king of Castile, in jail after he betrayed him in Rome in 1268; despite endless appeals from his influential relations across Europe, Henry remained there until 1291, 6 years after Charles’s own death.14 Imprisonment in these cases was the only option the captors had. They hoped that ‘out of sight’ would slowly mean ‘out of mind’; that the important sympathizers who had initially rallied to these men’s causes would gradually shift their attention to other people and forget their erstwhile allies. In this their calculation was probably correct. Ironically these alleged criminals suffered rather less than innocent children like Arthur of Brittany, imprisoned by King John as a dangerous rival, or the sons of Manfred, kept in jail for the whole of his reign by Charles I of Anjou. None of these was to enjoy liberty again, Arthur because he was murdered, probably at John’s instigation, and the sons of Manfred because they were as dangerous to Charles II as they had been to his father. Somewhat older candidates for other crowns were occasionally luckier. When Alfonso VI seized the throne of Castile in 1065, he had his elder brother murdered, but the younger one was detained in prison for 18 years and not released until Alfonso was dead.15 The circumstances were similar to those that resulted in Robert Courthose’s detention by his younger brother Henry I of England in Devizes castle between 1106 and his death in 1134. Llywellyn ap Gruffudd in 1255 imprisoned his elder and popular brother Owain for 22 years, after Owain had led what Llywellyn chose to interpret as a rebellion against his legitimate lord.16 John Balliol, one-time king of Scotland, was distinctly more fortunate than other defeated claimants. Powerful French influence secured his transfer from the Tower of London, where he had been jailed after his forced abdication from the Scots throne in July 1296, to the keeping of a papal representative in 1299, and then into the hands of Philip IV in 1301.17 But he never played a political role again. In each of these cases where adults were concerned, the captor no doubt judged that he had imposed a just sentence on a rebel

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against his legitimate authority. Others will have viewed the captives as unfortunate in defeat. Despite their notoriety, such custodial sentences were untypical. Guarding great men for many years was an expensive and tiresome business, only undertaken in the absence of any real alternative. In less exalted circles execution or murder did the job more efficiently. Consequently the only kind of custodial imprisonment ordinary people were likely to meet with was that enforced on those accused of serious crimes who were awaiting trial. Although by the thirteenth century such imprisonment was becoming commoner across western Europe, it was still surprisingly restricted in its use. When in 1188 Philip Augustus confirmed the customs of the commune of Tournai, he recognized the extensive judicial powers already exercised by the town’s representatives, and outlined the complete list of penalties, from executions to fines, that they were entitled to impose in criminal cases.18 But there was no reference at all to jails or to imprisonment. The implication seems to be that in Tournai at the end of the twelfth century, either justice could be obtained so quickly as to make imprisonment before trial unnecessary or a man’s neighbours or his lord could still be relied on to present the accused for trial on the appointed day. That justice might remain summary in some places even in the later thirteenth century is well attested. The Sachsenspiegel laid down that comital courts, those competent to try cases of ‘blood’, would normally be held only every 18 weeks; but it also made arrangements for special sittings when a serious criminal case came up, in order to prevent delay in passing judgement.19 Beaumanoir told the baillis that speed was more important than a proper trial in all cases except where a man might be executed. To prevent wrongdoers from escaping, judgement against them might be pronounced by a small number of jurors who did not need to wait for a regular court sitting.20 The Bologna statute of 1287, an emergency measure designed to protect the popolo against the magnates, laid down that when a magnate attacked a member of the popolo, the podestà should enquire into the matter on the day the crime was committed, if at all possible; and the word of the commoner should be taken both on the identity of the perpetrator and on the nature of the crime. 21 A more summary form of trial could hardly be imagined. And this in the city renowned for its attachment to learned law and to the production of professional lawyers. Despite the exceptional nature of the statute,

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drafted as it was to meet what the popolo regarded as a crisis, it illustrates the general proposition that the smaller the geographical area of judicial competence, the more rapidly justice could be dispensed when needed. In larger jurisdictions and when dealing with serious cases, the older methods of ensuring that an accused person turned up on the day appointed for his trial were, after about 1200, increasingly proving unreliable. With growing social mobility and more people either drifting to towns or settling on newly cleared land, a man’s neighbours were often unwilling, and even more often unable, to ensure his appearance at trial. The authority of lords over their men had in some cases declined to minimal effectiveness in everyday matters. Therefore, the social pressures that had once denied easy escape routes to those of poor reputation were beginning to ease off. Flight and a new identity were now available to those whose neighbours did not trust them, and also to those who knew their own guilt. This factor partially explains why custody before trial for serious offences was becoming a matter of course in some parts of Europe in the thirteenth century. The Customs of Touraine and Anjou assumed that lords possessing either high or low jurisdiction would have a fortified residence with a tower or a dungeon into which accused people could be thrust. In these provinces, where a person was charged with murder or treason, and therefore had to go before a court possessing high jurisdiction, imprisonment before trial was the fate of the accuser as well as the suspect. The lord was required to resist the temptation to grant either party bail. 22 Surprising though double incarceration may seem to the modern observer, it made sense if the custom of Châtelet (the court of the prévot of Paris) also applied in Anjou and the Touraine: here the accuser was warned in advance that if he failed to prove his allegation, he would be subject to the penalty that would have fallen on the defendant, which could be mutilation or even capital punishment.23 The equal treatment of each party highlighted the serious blow to a man’s honour an accusation of murder or treason could constitute; but it was hardly compatible with a clear notion of serious crime as an offence against the public good. It must have been reasonably easy to get away with murder if the stakes were as high as this for a potential accuser. As a whole, the procedure combined custodial imprisonment by a higher authority with what looks suspiciously like the arbitration of a private dispute.

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In 1283, Beaumanoir explained that the imprisonment of a suspect provided time for the plaintiff to formulate his accusation.24 From this it is clear that suspicion or notoriety were enough to secure an arrest in the Beauvaisis, though not enough to ensure condemnation. Once in prison, it was the nature of the crime of which a person was accused that dictated whether he or she was put in the dungeons in irons, as were alleged murderers or others who would be executed if found guilty, or in the more liberal regime on the upper floor.25 This stipulation demonstrates that, as might be expected, there was no assumption of innocence before trial. What Beaumanoir revealed of the Beauvaisis custom was representative of most jurisdictions in northern France, though not entirely of Normandy, where English custom had had its effects. In that province, strong suspicion was also enough to secure imprisonment; but then the captive must be forced to plead before the trial could begin. If he refused to plead, he was coerced into doing so by being held in the dungeon and offered very little food or drink for up to a year and a day. 26 Under such treatment men cracked and either confessed or asserted their innocence. If they pleaded not guilty, a jury could decide whether there was a case to answer; if there was, they would then be tried in the normal fashion. All this could take a long time. For much of northern France, custodial imprisonment before trial was originally meant to be meted out only to those caught in flagrante delicto or those whom another person was willing to accuse. In these cases, the trial was to be held as soon as possible after the arrest and the punishment should follow the trial almost immediately.27 Nevertheless the endless arguments over jurisdictional rights, particularly the lucrative right of hanging thieves, that are to be found recorded with great regularity in the rolls of the Parlement of Paris may well explain at least in some cases why delay crept in.28 More reputably, the new inquisitorial form of criminal procedure increasingly followed in France during the thirteenth century also led to delay. Here, following the method originally developed in the church courts, a judge or a magistrate was burdened with the task of investigating a crime, examining witnesses, and coming to a conclusion on the defendant’s guilt or innocence. Clearly this took time, and in the interval the accused had to be detained. Although France was ahead of Aragon and Castile in adopting the inquisitorial method, and far in advance of Germany where it was only introduced in the fourteenth century, by 1300 the majority of

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French criminal trials seem still to have been conducted by older methods. Where it was introduced, inquisition could have powerful impact on procedures, as can be seen in the following example: In 1260 the Parlement of Paris ordered that four men suspected of having murdered a cleric should be set free after more than 2 years of imprisonment, because repeated enquiries had failed to find any proof of their guilt. 29 As far as can be seen, they were not compensated for the injury done them by their captivity; the only benefit they got from the court was the promise extracted from the cleric’s father that he would not avenge himself on them, despite his obvious belief in their guilt, a belief that had presumably been responsible for their long residence in jail. But at least the use of the new procedure had saved their lives. Had the cleric’s father been permitted to conduct the prosecution himself, as the Châtelet customs prescribed, either they or he would have been condemned long before. In Italy, where the impact of Lombard law remained strong, and where town prisons were established earlier than elsewhere, custodial imprisonment before trial was widespread, despite the frequent sittings of courts in towns. The chief reason for this was that by around 1200 Italian secular courts had begun to adopt the inquisitorial process; by 1300, this was the predominant method of procedure in criminal cases throughout the country, which made Italy unique in western Europe.30 Since there could be no inquisition without the safe-keeping of suspects while the enquiries were undertaken, extended custodial imprisonment became common. The combination of a prolonged judicial process with the high degree of violence experienced in Italian towns resulted in the courts becoming clogged with business, and hence in suspects being made to wait their turn for yet longer in jail. The emergence of jail delivery (a procedure for ensuring that all prisoners were either tried or released) in several towns by the end of the thirteenth century was evidence that the delays were thought to be getting out of hand.31 Behind the specific circumstances that caused trials to be postponed, there can be detected some changes in ways of thought that affected most western European judicial proceedings in the later twelfth and the thirteenth centuries, and played their part in slowing down the processes of justice. In the first place, the question of guilt or innocence began to seem more complex. Slowly it came to be accepted that what appeared to be the facts of a case as initially presented

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might turn out to be misleading or wrong on further inspection. This realization underlay the Scottish assize of 1184 which protected a man caught with goods alleged to be stolen, by giving him the opportunity to produce warrantors to his title to possess those goods before the sentence against him was pronounced.32 Being caught apparently in flagrante delicto was no longer simple proof of guilt. By the end of the twelfth century, worries that the wrong man might be arrested had become sufficiently common for the distinguished theologian Peter the Chanter to debate in Paris the question of what a jailer should do if he knew that one of his prisoners was innocent of the crime of which he was accused.33 Then there was the new question of what crime an accused person was to be charged with. The belief that the intentions of the defendant were relevant to the degree of his guilt and therefore to the nature of his offence was linked to the debates among theologians about the nature of sin. The most famous theological expression of such a sentiment occurred in Peter Abelard’s notorious insistence that those who crucified Christ were not necessarily sinners, since they did what they believed to be pleasing to God.34 The connection between guilt and intention in the measurement of sin penetrated throughout lay society, principally through the confessional practices that became a universal obligation at the Fourth Lateran Council of 1215. Those who were taught to examine their own consciences and make sophisticated judgements about the degree of their own responsibility for evil in everyday life were unlikely to be satisfied with snap decisions in law courts. As early as the late eleventh century, some Italian lawyers raised the issue of differences between intentional and unintentional harm;35 by the early twelfth century the same concern was evident in the charter (traditionally ascribed to 1111) granted by Louis VI to the people of Mantes, which laid down that an injury inflicted by accident should not be treated in the same way as should an intentional blow.36 More than a century later, in a charter granted by Richard of Cornwall to the townsmen of Cambrai, the emperor drew a sharp distinction between murder, the result of premeditated malice, and accidental homicide; in future the townsmen were not required to punish the latter in accordance with the harsh provisions of Bishop Geoffrey’s law of 1227.37 Summary justice had depended on the acceptance by communities that it was the action rather than the intention that dictated the punishment. The new kind of thinking almost automatically demanded slower procedures.

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Just at the time when questions about the nature of crime were being asked, one traditional way of arriving at a verdict in a trial was closed off. The canon law prohibition on clerical participation in the ordeal pronounced in 1215 meant that secular courts could no longer invoke the judgement of God in the time-honoured fashion to decide innocence or guilt when human methods failed. 38 The presence of a priest had been indispensable to the efficacy of this test; without the blessing of the priest the instruments for use in the ordeals of hot or cold water or hot iron lost their power. There has been much historical debate, both on the mechanisms of ordeal itself and on the question of whether it had already evoked any substantial degree of scepticism among the laity before 1215. From the perspective of a study on imprisonment, what matters is that the prohibition constituted yet another barrier to the operation of summary justice. So those in charge of criminal justice across western Europe in the thirteenth century found themselves having to thrash out answers to a series of problems that demanded immediate solution. It was unsurprising that many turned to advice from trained Roman and canon lawyers for help in their dilemmas. The solutions adopted, the inquisitorial form of trial, the use of torture to elicit confessions and evidence, and the employment of trained advocates by each side where old adversarial trials still proceeded, all necessitated delays between arrest and trial. These, along with the demands made by the rulers of some emerging states that serious criminal trials should only be held by royal judges at specific times and places (discussed in Chapter 4), meant that custodial imprisonment was endured by an increasing number of western Europeans in the century before 1300. While the imprisonment of a defendant to permit others to undertake enquiries might in certain cases represent some lightening of the rod of the law, it was commonly accompanied by a new intolerance towards crime of all sorts. Earlier court proceedings had been geared to the punishment mainly of criminals arrested in flagrante delicto or of men of notoriously bad reputation. With the repeated calls by rulers from the later eleventh century onwards for peace and justice on earth, the legal system was increasingly burdened with discovering who was guilty in each case where a manifest crime had been committed. Behind this lay the perception sharply evident across the whole of western Europe from the twelfth century onwards, that any form of violence or theft was a breach of the public peace which should be punished publicly, and by a penalty harsher than

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mere compensation. The move from satisfaction of the injured party and his kin to satisfaction of society as a whole was almost inevitably more protracted and involved more complex issues. If it was right that a thief should be hanged where once he would merely have had to make recompense (a change in the law evident in many jurisdictions across western Europe by the end of the twelfth century), then there had to be greater certainty of his guilt than in the days when the sentence could easily be reversed. Beaumanoir’s view that a suspect should be retained in jail for a maximum of 165 days to allow someone to accuse him, was a clear sign that such a task could no longer be undertaken lightly.39 Where inquisitorial procedure operated, judges had to deal with suspects against whom the evidence was not conclusive, and yet they had to come to a verdict that was, if at all possible, unquestionable. Proof of guilt necessitated either eyewitness accounts or a confession. In one of the earliest statutes involving inquisition, the Montpellier statute on arson of 1233, five witnesses had to be called for proof of guilt.40 In most later cases, two witnesses sufficed. But given the difficulty of finding even two, it is not surprising that many inquisitions concentrated on attempting to secure a confession. The use of torture for that purpose, which will be discussed in Chapter 8, was based on the assumption that the accused would not have been arrested unless there were good grounds for thinking him guilty, and that a confession was worth obtaining by any possible means. It virtually required enforced detention of suspects. Practical considerations reinforced the need for convincing evidence, whether or not inquisition was used: judges had to adapt to the development of appellate jurisdiction in secular courts during the thirteenth century. In imitation of the system found both in Roman and in canon law, and probably strongly influenced by St Paul’s appeal to Caesar, many lay jurisdictions began to allow for the possibility of a miscarriage of justice at trial. Appeals might be to courts of royal officials, of counts or other great lords, or to the royal court itself, as in England, the Regno,41 and, most notably, in France. Appeals against conviction by condemned criminals were fewer than those against verdicts in civil cases (in many Italian towns appeals were forbidden altogether for felonies);42 nevertheless the prospect of an appeal against an unjust verdict affected procedure. At Pentecost 1286 the Parlement of Paris decided that appeals from Gascony should automatically entail the postponement of the sentence unless

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the condemned man had confessed to the act or had been caught in flagrante delicto.43 The general application of such a rule might encourage either careful examination of the facts before the verdict or the use of torture to extract a confession. In France, an appellant against a seigneurial sentence was moved from his lord’s prison to a royal prison, to protect him from the wrath of his first judge until the original verdict had either been upheld or was quashed.44 An aristocrat jealous of his judicial rights would attempt to prevent this from happening by avoiding grounds for appeal. Rushing into sentencing people might no longer be a sound policy. All these developments resulted in a much clearer sense of what a crime was, how a criminal trial should be conducted, and what legal processes should be followed. The confusion between war and trial, crime and civil actions, that I have argued characterized the eleventh and early twelfth centuries began to give way. Even so, the clarity achieved should not be exaggerated. On the one hand, where the guilt of a person accused of a serious crime was deemed to be publicly notorious, all legal process could be overridden and judicial condemnation imposed virtually at once, in order to protect the rest of society from pollution. On the other, it was still possible in some jurisdictions to escape all forms of a trial, even for murder. For example, Charles of Anjou was informed that it remained the custom of Marseilles, even in the 1270s, that a citizen guilty of murder or of grievous bodily harm who fled the town might return and escape all punishment if he was able to reach an agreement on appropriate compensation, either with the victim himself or, if he was dead, with five of his close relations.45 The widespread call for more rational and convincing proceedings in criminal cases was not the only reason for delaying trials and therefore for keeping those accused in prison. In a few notorious instances, delay was brought about by the need to stage a state trial, with all the public participation that this demanded. For example, when Charles I of Anjou decided to execute for treason the last of the Hohenstaufen, Corradin, after the battle of Tagliacozzo in August 1268, he could not proceed to carry out his plan immediately. In order to diffuse public anger, he had to call to Naples two representatives from each of the towns or villages in the two northerly provinces of the Regno to endorse what was done. The trial and execution therefore could not take place until November. In the meantime, Corradin and the son of the duke of Austria were held in

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one of the royal castles in Naples.46 Similarly, when Edward I decided to execute David of Wales after his capture in June 1283, he had to wait for the approval of the parliament he summoned to Shrewsbury at Michaelmas before carrying out the brutal sentence.47 In both cases, the kings felt the need for public displays of support for their mercilessness and endorsement for their interpretation of the law of treason. They wanted the elimination of their enemies to be seen as an act of popular, not private, vengeance. Thus far we have been concerned with reasons for delay between arrest and trial. There could also be delay after trial. In parts of Italy, the granting of pardons to condemned criminals of rank by the communal authorities became so frequent an occurrence as to make prudent a certain hesitation before the execution of sentences.48 Less pleasantly, towards the end of the thirteenth century, elements of Foucaultesque ‘theatre of punishment’ emerged in the executions of even some ordinary thieves or murderers. A society accustomed to seeing thieves left hanging from the gallows had not hitherto been encouraged to take much notice of the actual moment of death, although the sight of the corpse rotting there was intended to be exemplary for weeks afterwards. But the Lille peace ordinance of 1263, which included a clause that a man condemned for murder and robbery should be dragged from the castellan’s jail to the gallows, suggests that a watching crowd was now expected to be gathered for the occasion.49 For famous men, more preparation was necessary. The execution of Philip IV’s minister Marigny in 1315 was clearly stage-managed. That is why it made such a deep impression on informed Parisian opinion (as the Fauvel ms BN français 146 displays).50 The 6 weeks that elapsed between the financial expert’s trial on 11 March and his execution on 30 April were put to good use by the authorities in organizing the event around the gallows at Montfaucon. In the meantime the condemned man was held at the Louvre. The length of some imprisonments is, however, very hard to explain either in terms of arguments over jurisdiction or of the theatre of punishment. If the famous Hebrew poem which celebrates a martyr of Metz in 1276 is even remotely factually accurate, the rabbi concerned was kept in prison for 10 years before the sentence of death passed against him was carried out.51 While some of this time may have been consumed in fruitless appeals to the authorities by his coreligionists, there was probably also some reluctance among a section of the Christians of the town to see the man burned alive.

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Sheer inefficiency could hardly have brought about so long a delay, even if its actual length was somewhat inflated by poetic licence. So prisons came in the thirteenth century to play once again the role that Ulpian had regarded as essential, that of guarding the accused before trial and punishment. Medieval Roman lawyers, following in the footsteps of their classical predecessors, spoke of this as their prime function. This in turn encouraged those dispensers of higher criminal jurisdiction who had hitherto managed without one to set about building a new prison or redesignating existing premises as suitable for the purpose. Even so, bail was still normally granted to those accused of non-capital offences who could produce it. The agreement between Charles of Anjou and the people of Marseilles in 1257 stipulated that bail should not be denied to those who offered it, unless in case of serious crime.52 In the Regno, the rule was that bail was available to anyone not accused of lèse majesté, unless he was caught in flagrante delicto.53 In Siena nobles and men of good reputation might evade prison if accused of crimes that did not carry the death penalty, provided they gave the podestà sureties for good conduct.54 In France and England, where this legacy of Roman law was conveniently not applied, there was more uncertainty on the matter. But the possibility of avoiding prison was open to the wealthy or influential almost everywhere, and while this was so, the link between crime and imprisonment remained loose. Once built primarily for custodial purposes, prisons expanded their punitive functions, up till this point restricted chiefly to the detention of those too politically significant to be executed. In Venice, where Roman law’s impact was minimal, harsh penal incarceration was common.55 Elsewhere it might be used against foreigners who committed thefts, as a miracle story dating to the early 1170s suggests. It tells of a merchant of Lyon who went to a fair at Bar-sur-Aube, one of the Champagne towns of growing commercial importance at this time; there he carelessly left his money bag lying around at his guest house, and it was stolen by some other merchants also staying there. On their way home, these foreign merchants went to Lyon and, through the intervention of Our Lady of Rocamadour, were led to ask for lodgings at the house of the man from whom they had stolen the bag. His wife recognized her property, and quietly alerted witnesses who called in a city judge; the verdict went against the travellers, who were put in prison.56 The whole affair was dealt with on the spot, presumably to the great surprise of the robbers. On the other

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hand, if the story can be believed, their punishment was merely imprisonment. 57 That the same punishment would have been meted out to an inhabitant of Lyon who robbed others of a substantial amount of money is doubtful, because by the 1170s the hanging of thieves had become normal in surrounding places. There is more substantial evidence than a miracle story to demonstrate that prisons expanded their punitive function in the later twelfth and thirteenth centuries. Petty offences, like going out at night without a candle, might be punished by very short terms in jail, in this case one night, perhaps in the stocks, in the stipulation of Alfonso X’s Siete Partidas.58 Beaumanoir favoured imprisonment as a means of punishing social inferiors who insulted their superiors.59 He also declared that those guilty of sorcery which was not intended to lead to the death of the victim might be punished by being put in the dungeon in chains until such time as they had completely repented. 60 Here, then, Beaumanoir clearly embraced not only a punitive but also a reformative function for imprisonment. Mme Porteau-Bitker has pointed out that in the coutumes de Beauvaisis, imprisonment was frequently an addition to other punishments for serious offences. 61 Evidence for this can also be found in the rolls of the Parlement of Paris. For example, when the count of Hainault destroyed the castle of Bon Chien early in the reign of Philip IV, he was required to pay a fine of 40 000 l.t., and to send his bailiff to be imprisoned in the Châtelet for as long as the king thought fit.62 On a less exalted level, an inn-keeper who injured a member of the household of the chancellor of Chartres had to spend 8 days in prison before compensating the chancellor for his misdeed.63 In the Regno, imprisonment might be the precursor of banishment from the realm.64 In other words, monetary compensations, fines or exile in themselves were no longer seen as adequate; some form of public humiliation had to be added to the condemned man’s sufferings before the slate could be wiped clean. Imprisonment provided this relatively easily. An important category of punitive imprisonment was that inflicted on those too poor to pay the fines that their offences would normally have attracted. The length of time they had to spend in squalor and misery was sometimes laid down when they were sentenced. For example, in Cambrai Bishop Geoffrey declared in 1227 that a man who could not pay the fine he owed for a breach of the law should spend 15 days in prison, then be put in the pillory, before being

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banished from the city until such time as he could pay.65 As has often been the case in penal arrangements, the relationship between the seriousness of the crime and the harshness of the sentence was not always obvious. In Paris, a servant who beat a royal sergeant in the cloister of Notre Dame and who could not pay the standard fine was imprisoned for 60 days.66 But at least he had the clear prospect of release at the end of his 60 days; a precise day for the automatic release of others who had failed to pay fines was often left undecided. In the above cases the surviving documents talked with detachment about punitive imprisonment. According to the victims, what they suffered should sometimes more appropriately be seen as revenge. When a servant of the bishop of Laon was captured by the mayor and town counsellors, ‘they extorted from him a monetary penalty by the violence of the prison’. 67 The high charges for food and lodging inflicted on all prisoners by their jailers were regarded as punitive by their victims, whether or not this was the intention of those who legislated for this. On the other hand, on very rare occasions, imprisonment might be seen as offering a measure of security. A knight banished from the royal demesne found in the prison of the abbot of St Richard in Ponthieu a place of refuge where no-one could attack him. Louis IX expressed his anger that the abbot had offered this shelter without consulting him, but did permit him to go on guarding him. 68 The story only makes sense if it was widely accepted that the life of an outlaw was even worse than that of a prisoner. The picture that emerges from the evidence is that once prisons started to be built both in castles and in towns, those in power found uses for them, and therefore built more. While custodial imprisonment was reinforced by the revival of Roman law, punitive imprisonment grew as an ad hoc response to offences that did not fit in well to traditional categories, offences arising from the rapid circulation of money, or from the tasks committed to the new class of bureaucrats. So by 1300 western Europe had some states in addition to England within which a modern system of criminal punishment might be thought to be emerging. But there was little observable uniformity. While a number of different actions might lead to imprisonment, criminals may still have been in the minority among debtors or captured soldiers as the inmates of jails. Power rather than authority remained the dominant factor in imposing imprisonment on other people, and absence of rank or wealth the dominant factor in creating the victim’s submission to that power.

8 CONDITIONS OF CAPTIVITY

The Spanish monk Grimaldus, writing towards the end of the eleventh century, imagined for the knight Servandus, held in captivity by the Saracens, an imprisonment that was little short of hell on earth: Each of his legs weighed down and constricted by the weight of inextricable leg-irons, he was thrust into the depths of a prison, dark, smelly and filthy, and totally deprived of light. There the most wretched man, lacking all comfort and help, was afflicted by the incredible and intolerable pain of horror, hunger, cold, filth, and the weight of chains.1

There is no reason to think that this picture was based on first-hand testimony about, or even on indirect knowledge of, circumstances in the prisons of Muslim Spain.2 It is safer to treat it as a monkish image of imprisonment in the worst form that could be conceived. When the captor was an infidel, narrators felt free to let their imagination take over. So Grimaldus described another prisoner of a Saracen lord as confined for years in a ‘slimy pit’,3 though he was permitted to leave it each day to labour in his captor’s garden. (It is notable that the typical western picture of a captive held by Muslims, whether in Spain or in Outremer, envisaged him as engaged in forced manual labour.) 4 These images of pain, filth and hard labour bore no relation at all to the conditions enjoyed by a small number of relatively fortunate captives of high rank in western Europe at the time. These were the men who were allowed to move freely around a locked room or even 114

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a locked building, unchained and unfettered. Historians have devised the term ‘honourable captivity’ for this state. Perhaps the most famous captive of this sort was Robert Courthose, held by his brother Henry I of England in Devizes castle from 1106 until his death in 1134. It was said that the king treated Robert more like a noble pilgrim than a foreign captive.5 This unusual liberality reflected not just Robert’s merits as a major participant on the first crusade but also Henry’s sense of political expediency. Robert of Bellême was far from unique among Norman barons in thinking that the king had committed an outrageous sin in imprisoning his elder brother at all.6 Any rumour that Courthose was being ill-treated might therefore have brought down rebellion on Henry’s head. Besides, the defeated duke of Normandy had given his promise not to escape, a promise worth paying for with relative kindness. The absence over so long a period of any recorded escape attempt, engineered either by Robert himself, by his son William Clito, or by other supporters, was remarkable. But if Courthose’s life was after 1106 very dull, it was at least reasonably comfortable. Galbert of Bruges gave remarkably precise details of the constraints placed on William of Ypres, unsuccessful contender for the countship of Flanders in 1127 and thought by some to have been implicated in the murder of Charles the Good. Captured by Louis VI and William Clito after they had taken Ypres by siege, William and his brother were brought to Bruges castle, where they were shut up in an upper room. After a while, William was permitted to move about to some extent within the house, but was forbidden to look out of the window, presumably to prevent him from attempting to communicate with possible allies. 7 He was guarded the whole time. But his conditions were far from wretched. Both Robert Courthose and William of Ypres were sufficiently important pawns in the political game for their captors to be willing to pay for special guards for them. The same was true of three sons of Charles II of Anjou, sent to Aragon as hostages when their father was released from captivity in 1288. The terms of their detention were worked out in advance, and allowed them and the other hostages sent with them a reasonable freedom of movement, at least in the day time (a normal condition for hostages of high rank). They could entertain visitors and receive gifts. They had a small complement of personal servants. They lived comparatively well, though their father had to pay their expenses.8 Nevertheless, their long years of

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imprisonment cost them dear in terms of political promotion at home; their father gave important stretches of land and positions to their younger brother Philip of Taranto which would otherwise have come their way. 9 Their own homecoming, which was not achieved until 1295, promised to be a difficult one. As it happened, the eldest of the three, Louis, avoided the problem of readjustment to different circumstances by drastic means: he had devoted his enforced leisure to spiritual matters, and now made up his mind to become a Franciscan, thereby renouncing his right to the throne of the Regno. This was the first step on his path to the bishopric of Toulouse, and then to canonization. Rarely can captivity have had so striking an impact on its victim.10 The others, Robert and Raymond Berengar, did return to the Regno and there had to relearn the ways of a court now almost unknown to them. A man of distinction, surrendering to his enemy in time of war, might on occasion negotiate the terms of his detention. In 1302 John de Lens, the castellan of Ghent, on hearing of the appalling defeat of the French king’s forces by the Flemish at the battle of Courtrai, and fearing that the mob might get out of control, surrendered the castle of Courtrai along with its other defenders to the victorious leader Guy of Namur. Guy undertook that John together with his knights would be kept in a prison in Namur suitable to his rank, without chains, that he would be allowed to have two squires and a barber with him, and that they would be permitted to come and go to supply his needs.11 From this stipulation it can be deduced that both parties took it for granted that John was responsible for his own upkeep while a prisoner. Two named knights captured with him were permitted to go free to negotiate his ransom, and if they failed, another two were nominated for the task, a clause that offers an interesting insight into possible hitches in the process of raising money in absentia. In the terms of his surrender, Jean de Lens was much more fortunate than Philip of Taranto, son of Charles II of Anjou, captured at the battle of Falconaria in 1299. According to a letter from his mother, he was kept in chains in harsh conditions until released under the terms of the 1302 peace between the house of Anjou and the Aragonese.12 If his mother’s information was correct, Philip’s wretched circumstances were unusual for a captive prince of royal blood. Ladies of the highest rank, unless they posed a very real threat to the captor powers, generally received fairly liberal terms as prisoners.

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The author of the Annales Gandenses was furious that Philippa, daughter of Count Guy of Flanders, was kept as a prisoner from 1298 until her death in 1306, in punishment for her father’s attempt to marry her to Edward I’s son Edward, without the approval of – indeed, in the teeth of the opposition – of Philip IV of France, his overlord. But the Franciscan author could not deny that Philippa had been allowed to live with the French king’s sons and daughters.13 The same was true for one of Manfred’s daughters, Beatrice, after her father was killed at Benevento in 1266. She was the only one of her family to escape from harsh imprisonment during the reigns of Charles I and Charles II of Anjou.14 It is perhaps an insight into the conditions of royal children, whose parents feared kidnap for ransom, that their households were guarded so securely as to make them safe places for the detention of enemy princesses. There must, however, have been social awkwardnesses to be faced in living among the enemies of one’s parents. Philippa and Beatrice had been imprisoned for the sins of their fathers. Those who had committed their own faults did not get off so lightly. The allegedly adulterous daughters-in-law of Philip IV were locked in towers of strong royal castles, from whence one later obtained her pardon. The other, Margaret of Burgundy, whose guilt was widely assumed, died after 9 months in jail. If Favier is right in his reading of the chronicle source, her demise was the result of her deliberate exposure to the winter winds in her high and exposed prison at Château-Gaillard. Certainly her death was necessary for reasons of state; her husband had just succeeded to the throne as Louis X, and he had to provide the country with a male heir. His re-marriage would not be possible while she lived. On Favier’s reading, the king’s servants will have been anxious to find a way of killing Margaret that avoided signs of physical violence.15 Concerned as they no doubt were in 1314 to add no flames to the already considerable fires of public discontent across France, they preferred slow cruelty to murder or execution. Dishonourable treatment even of ladies of lower rank could cause serious trouble. Orderic Vitalis believed that one of the reasons for the town of Alençon’s rebellion against Henry I in 1118 was that Count Stephen of Mortain, the future king of England, had imprisoned the daughter of a knight in a tower, committing her to the hands of debauched guards. Her husband, outraged by this, led the conspiracy.16 Among the wickednesses ascribed to Thomas of Marle,

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lord of Coucy, against whom the papal legate Cono launched an excommunication, was that he had chained a countess against all custom. 17 Naturally he was also accused of raping her. In thirteenthcentury Venice, where male debtors were sent to prison, female ones were commended to monasteries or nunneries to persuade them to pay up, a sign that the city authorities did not wish to be involved in allegations of rape.18 A technique which must greatly have increased the misery of captivity, even for those for whom actual conditions were good, was the removal of important men and women as far from their homes as possible. The Emperor Henry III took the countess of the March of Tuscany and her daughter Matilda all the way to Germany, to isolate them from those who might attempt to free them or to make them less malleable in his hands.19 This variant on exile was naturally a practice applied also to men. Frederick II forced his rebellious son Henry out of the German realms where he had acquired some support, and imprisoned him in Apulia, where he was either poisoned or committed suicide.20 Charles of Anjou locked some of the most important of Manfred’s adherents in a castle in Provence after the battle of Benevento in 1266.21 Even where such drastic removals were not practised, it was normal that groups of important captives should be split up among several prisons, so that there could be no chance of conversation between them. Philip Augustus put Count Ferrand of Flanders in the Louvre on his own after the battle of Bouvines in 1214, and divided his other important captives between the two fortifications guarding the bridges linking the Ile-de-la-Cité with the banks of the Seine.22 Ferrand remained in the Louvre, isolated and humiliated, for 12 years. Even for unchained aristocrats, captivity could be a very miserable period. Psychologically, the captive’s pride was seriously wounded, as was Harold’s, the future king of England, when captured in Ponthieu, ‘a misfortune a man as proud as he would gladly have exchanged for shipwreck’.23 The Saxon aristocrats who in 1075 yielded to King Henry IV expecting civil treatment, found themselves in prison, which infuriated them even though their detention lasted only for a few days.24 William of Malmesbury commented of the captive Robert, earl of Leicester: Such consciousness of high breeding he breathed that he could not be humbled by the outrage of fortune.25

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But lesser men did not share such highminded oblivion to circumstance. Injured pride could be aggravated by jailers’ lurid speculations as to what would be the final fate of those in their keeping. When Charles of Salerno was captured in the bay of Naples in 1284, the triumphant people of Messina mocked him as he came ashore, and called for his swift execution.26 Such harassment will have been common. For others, there was the frustration of not being able to do anything to assist their own cause or protect their own interests. Gerald of Wales, captured by the castellan of Chatillon-sur-Seine on his way home from a fruitless appeal to the Pope in Rome, described the misery of having no money with which to buy food, and The depths of despair when he considered the peril of his present plight, which seemed past all cure, and the thought of his captivity and misery, [which appeared] beyond all human solace or support.27

A surviving charter from the abbey of Marmoutier casts interesting light on the mental state of Geoffrey of Chaumont after he had been captured at the battle of Nouy in 1044 and locked up in the fortress of Baugé. There he remained as a hostage while Thibaud of Blois, his defeated lord, arranged for the surrender of Tours. For Geoffrey, the knowledge that his own losses in land might be considerable and that his castle of Chaumont had been temporarily granted to his enemy Lisois of Amboise, must have caused him much anxiety. When the abbot of Marmoutier came to visit him on business, Geoffrey begged him for prayers for his release, bestowing on him a small piece of firewood (presumably the only disposable item he had) to be placed on the altar to jog the monks’ memories. Fortunately for him, the prayers were successful; after about 4 months’ of imprisonment, he was set free, though to a poorer and more dangerous life than he had led before Nouy. 28 It is unclear whether the ability to entertain visitors was a privilege normally attached to honourable imprisonment or whether the friends and relations of a socially distinguished captive had to press very hard to visit him in order to ensure that he was being treated reasonably. Charles I of Anjou certainly came under considerable pressure to allow several of Henry of Castile’s relations to see him after he had been imprisoned for treason.29 In this case, given the seriousness of the offence, Henry’s relations’ fears were

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understandable. But if they complained about his conditions, no trace remains of it. A major drawback to honourable captivity was that, if either the captive or his friends annoyed the captor, privileges could be withdrawn. If Henry of Huntingdon’s testimony is to be believed, the Empress Matilda, infuriated by the Londoners’ refusal to receive her in 1141, blamed the captive King Stephen for it, and ordered him to be flung into a dungeon in chains.30 Furthermore, honourable imprisonment was an expensive affair; if the prisoner’s money ran out, his conditions would automatically worsen, as occurred with King Enzo, who was held in Bologna between 1249 and his death in 1272. Initially the commune must have hoped to ransom so splendid a captive for a very high sum. But Enzo’s father, Frederick II, had failed to negotiate this before his death in 1250, and the terrible fate that befell the other remaining members of the Hohenstaufen family between 1266 and 1268 meant that there was no-one left to whom Enzo could look for release. There are clear indications that the commune found the costs of his captivity an increasing burden;31 Tommaso di Pavia, usually well informed, relates that when Enzo’s own money ran out, the commune had to feed him, and so he grew increasingly emaciated before his death.32 The more powerful or richer the prisoner, the greater the irritant of being a ‘non-person’ while in jail. The early thirteenth-century Enquetes de la maison de paix in Cambrai prevented any prisoner from undertaking legal actions to protect or enhance his property while he was in jail.33 Those jurisdictions influenced by Roman law forbade prisoners to make wills.34 The one comfort in this situation, that being in prison was usually held to be an acceptable reason for postponing the fulfilment of feudal dues or the payment of local taxes, was quite insufficient to outway the disadvantage. Orderic well conveyed the sense of helplessness that might hit a once-powerful warrior, when he spoke of Roger of Tosny lying ‘loaded with chains in prison, weeping and lamenting his impotence’. 35 Though the sources say little about it, the miseries of their situation will have been aggravated by tedium for all prisoners. However short their stay turned out to be, while they were locked up they could do nothing but think. There is an unusual insight into this in the Prologue to Marco Polo’s Travels, where it is recorded that Polo, while a prisoner of war of the Genoese in 1298, ‘wishing to occupy his leisure as well as to afford entertainment to readers’, told his

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adventures to a fellow prisoner, Messer Rusticello of Pisa, who wrote them down.36 But this kind of literary therapy, if it was more than a flight of fancy on the author’s part to catch the reader’s attention, must have been rare. One of the most serious gaps in our sources is that we can only speculate on whether more prisoners suffered from solitary confinement or from being pushed into grossly overcrowded and airless rooms. Such evidence as we have, however, seems incompatible with frequent indulgence in leisurely listening to other prisoners’ travellers’ tales. Whether allowed the relative salubriousness of a tower or kept in the dungeon, chains seem to have been the normal fate of captives of no great political importance, whether knights or commoners. John of Marmoutier’s Poitevin knights in the seneschal Josselin’s keeping had to be released from their chains before they could come down the staircase and sing to Geoffrey le Bel, who happened to be feasting in the castle on a visit. Despite Josselin’s sympathy for the men’s plight, they had suffered considerably from their period of detention. They were thin, pale, and in need of a good wash and new clothes before they were deemed fit to sit at table with the count, who then showed his mercy towards them.37 When Pierre Roger, lord of Cabaret, decided during the Albigensian crusade to release Bouchard of Marly, he first sent for a blacksmith to cut his chains, then let him have a bath and a haircut, and finally gave him new clothes.38 Both these descriptions, with their stress on the need for bathing on release, emphasize what Frederick II referred to as ‘the squalor of imprisonment’.39 Not for nothing did the name of Florence’s jail, the Stinche, give rise in English and in German to verbs expressive of extreme malodour. Standards of hygiene may have been even more abysmal in dungeons than in towers, but the danger of disease was great in either place. When Helias, brother of Count Geoffrey le Bel of Anjou, attempted to seize Maine from his brother, he was captured in 1145, kept for some time in prison at Tours, and eventually set free, but not in time to prevent his death from disease caught in jail.40 The Angevin regency government in the Regno in 1283 was seriously worried when Galgano della Marre, made scapegoat for the unpopularity of the tax regime and therefore imprisoned with almost all members of his own and the Rufoli family, became so ill that it was feared he might not live to stand trial. Their relief was great when he survived to be executed.41

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Cold was another hazard, at least in northern jails and in the dungeons to which heat never penetrated. In some prisons, the inmates were deprived of all their clothes except their shirts, which must have made the cold unbearable. 42 Presumably heat was just as bad in Mediterranean summers. And then there was the absence of light. Prisons were frequently described as ‘shadowy’, even for great ladies like Richilda of Hainault,43 because windows were regarded as potential escape points. Those in the dungeons could hardly see, even in daytime, through the small slits provided for the insertion of food. Disease, cold and darkness went hand-in-hand with hunger. Again, there was a huge gap between the relatively lavish fare provided for some prisoners and the bread and water which was all that was given to others. The general rule was that inmates were responsible for paying for their own food. Where either they or their relations or lords did so, the diet may have been reasonable. Charles of Anjou ordered that the son of Manfred Maletta, one of his most determined enemies, be given a regular monthly supply of corn while in jail.44 Beaumanoir regarded a creditor as responsible for providing food for his debtor’s refreshment, pointing out that it ought to be better than the water and one pennyworth of bread daily supplied to those accused of crimes; he specified soup and wine as well as bread.45 But how the creditor could be prevailed on to pay for this he did not say. In Cambrai, arrangements were more lavish for debtors, with meat, herrings and cheese as well as soup. In this case, it was the jailer’s responsibility to provide the sustenance; but the cost was all passed on, either to the debtor himself if he managed to secure a loan to repay what he owed, or to the creditor who then took charge of him.46 In other words, the decent nourishment may not have been an unmixed blessing, because the expense of it added to the captive’s burdens of debt on release. Eating in prison could, for the privileged citizens of some communes, have a flavour of domestic enjoyment. So in Lille, knightly prisoners, footsoldiers and esquires ate at the table of the rewart (the official in charge of law and order), drank wine, and paid 6 sous or 4 sous, depending on rank, for the privilege. Those not judged of sufficient station to share the rewart’s hospitality ate below the rewart’s table, had to do without wine, but only paid 2 sous for their meal.47 Here, then, there was apparently no difference in treatment between debtors and petty criminals; distinctions were based on whether or not a man participated in the town’s militia, and in what

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capacity if he did. But since those accused of serious crime in Lille were consigned to the castellan’s rather than the rewart’s jail, which was in any case intended only for those recognized as citizens of the town, this was an unusually humane and untypical regime. The punishment presumably lay in the high cost of dining. In 1298 Siena decided to provide food for the poorest prisoners in its jails. Yet this was not enough to prevent a high death rate; in 1327 the city council noted that more than 60 prisoners had died while incarcerated within the past 2 years.48 Elsewhere those who could not pay, along with those accused of serious crime, had to content themselves with bread and water, and were even charged for this where possible. On a few notorious occasions even this bare minimum was provided only rarely. The twelfth-century addition to the miracles of St Leonard, recounting a war between two aristocrats, told of how Hugh when imprisoned was chained in a dungeon and fed only twice a week. 49 The miracles of St Foy spoke of only rotten bread being offered, those of Our Lady of Rocamadour of a deliberate attempt to starve a prisoner.50 The deliberate starvation of Count Ugolino, described in the Introduction, is proof that such things happened at least occasionally.51 For those consigned to the dungeons because suspected of homicide or arson or other capital crimes, the wretchedness of their condition must have been as nothing in comparison with the fate to which they would in all probability be condemned. It was made plain to those in this category that, in the eyes of their captors, from the moment of their arrest they had ceased to be human beings, being reduced to no more than the possessors of objects over the future of which endless wrangles occurred. Prisoners were moved from jail to jail as local lords quarrelled over who should enjoy the profits of jurisdiction in their cases. 52 Occasionally such men did manage to avoid a horrible death, whether by miracle wrought by a compassionate saint, by the opportunity to go on crusade, by human slip-up,53 or by the failure of their accusers to obtain a condemnation. But the chances were not high. How many of the frequent deaths recorded in prison were the result of suicide cannot be known. But some of them clearly were, as in the case of Pierre Crochet of Boissiac, jailed for the murder of a neighbour, who hanged himself.54 The rest were brought about by injuries untreated, by starvation, or by disease. Those captured in battle and thrust into dungeons for rebellion against their lords suffered the same miseries as those accused of

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serious crime (of which, in the eyes of their captors, they were usually guilty). Orderic spoke of Walo of Trie, brother of one of the leading rebels against Henry I in 1119, who on his release from prison died from his wounds and the ill-treatment he had endured in ‘the king’s deep dungeon’.55 The same fate befell Robert de Seilhac in Henry II’s jail.56 In some cases, death was self-induced. Luc de Bar, who had infuriated Henry I by singing scurrilous stories about him, managed to commit suicide by bashing his head against the stone wall while his guards were trying to gouge his eyes out.57 It was difficult for a prisoner’s relations to prove that the lord in whose jail he had died was guilty of homicide. A typical failure was recorded in 1267, when a knight, presumably the possessor of rights of low justice, was found not guilty of the homicide of a man he had put in stocks who was found dead within 2 days.58 Although the Parlement of Paris decided that the knight had arrested the man illegally, the only fine mentioned went to the king for breach of customary law in this regard. The relatives gained nothing by their action. Nevertheless the death of an important prisoner was potentially embarrassing. William of Tudela sang about the decease of the viscount of Béziers in jail at Carcassonne after the destruction of his city by Simon de Montfort in the Albigensian crusade. The jongleur insisted that the viscount had been well supplied with everything, and attributed his death to dysentry, firmly scotching the rumour that he had been murdered.59 The idea that Simon de Montfort might be as responsible for dysentry among his prisoners as for their murder did not occur to him. With the same lack of awareness, Charles of Anjou ordered his officials to buy off with lavish gifts the Venetian consul who complained that one of his countrymen had been wrongfully imprisoned in the Regno and died there.60 Boniface VIII came to rue the fact that his predecessor, Celestine V, who abdicated in 1294, died in papal custody, because it permitted Boniface’s enemies to accuse him of homicide.61 For those who were either charged with or found guilty of lesser offences that involved enforced detention in a town or a royal or comital official’s prison, treatment could vary very considerably. While in 1000, rank was what secured good conditions, by 1300 wealth might be equally efficacious. In Cambrai in the thirteenth century there were private rooms for those who could pay; the upper classes were separated from the lower; and men from women.62 By the end of the century, in the Paris Châtelet, the upper single rooms were light and airy. To qualify for one of these, a person

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needed to be able to pay 4d a night for a bed and 2d for a room, on top of the provision of food. At a lower level was a large communal room for other prisoners. Below that was the terrifying dungeon, whose inmates were charged 1d a night for the privilege of the stinking pain and misery that met them there.63 All prisoners had to have some money or face slow starvation. Those who had plenty could buy themselves relatively decent conditions. But they were also substantially less likely than poor men to find themselves in prison in the first place. The drawback to affluence lay in the liability to pay high charges for release. For example, Amaury Chavelli complained that, although no charge against him had been proved in the courts, he had been imprisoned by the bailiff of Aunis in the Saintonge for 8 days, held in manacles (in annulis), and then made to pay 6 livres and 5 sous to buy his freedom.64 In the case of the Jews, this form of ransoming became institutionalized in France and England. The Hebrew graffiti carved onto the walls of prisons in Auxerre and Issoudun remain as a permanent memorial of the misery and helplessness of Jewish prisoners, waiting for their relations to raise money somehow to secure their freedom.65 Some attempts were made to help the most wretched of inmates. The statutes of Vienna of the mid thirteenth century explicitly forbade the torture of the accused ‘by hunger, thirst, chains, heat and cold’.66 They did not, however, explain how these could be avoided in the average prison. The mention of ‘torment’ in prisons in sources before the middle of the thirteenth century should usually be understood to apply to the wretchedness prevailing there. The lowest levels of peasant presumably suffered beatings in jail as they did outside; but there is little evidence in the earlier period of systematic and widespread physical cruelty, as opposed to systematic and widespread neglect of men’s basic needs. However, things changed. In some prisons by the second half of the thirteenth century torture by rack or beating in order to obtain confessions had become part of the judicial routine; occasionally even witnesses were being subjected to torture to ensure that they told all they knew. The threat to use it was frequently enough to secure what the authorities wanted; but this hardly lessened the terror. Nor was the legal requirement that the confession should be repeated subsequently without torture of much benefit to its victims, who knew that the pain would begin again if they denied it. As and when torture became part of many legal systems, prisons became yet

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more sinister places, increasingly feared by those outside their walls, because they and only they offered the necessary space and privacy within which men’s spirits could be broken. The story of the reintroduction of torture into the judicial process in the course of the thirteenth century has been well told by Edward M. Peters.67 There is no need to repeat here more than the outlines of his argument. He sees the crucial factor not so much in the revival of Roman law itself, although this gave form to it, but in the development of more rational processes of trial in both secular and ecclesiastical courts, which led gradually to the preference for inquisitorial over accusatorial procedure. Where officials, whether of kings, princes, bishops or towns, began to take over the role of prosecuting criminals that had earlier belonged to the victim or to his family, the stress on rational proof of guilt grew greater. The officials found it frustratingly hard to secure either the testimony of two eye witnesses to the crime or the confession of the guilty party. Given that a process of inquisition was supposed not to be begun against an individual unless he was either of evil reputation in the neighbourhood or there was some strong circumstantial evidence against him, the official was bound to press hard for a confession. In this predicament, he was befriended by the Roman law endorsement of torture to extract confessions in some circumstances, and by the contemporary church’s use of torture in cases of suspected heresy and other major crimes.68 While good reputation and high social class would protect many automatically from the torturer’s tools in most actions, some crimes, particularly treason, were regarded as so appalling to man and God as to override this limitation. Indeed, on one occasion Charles of Anjou ordered the torturing of a man already convicted of treason, so that he should suffer as much as possible before he died.69 It should be remembered that by 1300 the accusatorial process of indictment for crime was more common than the inquisitorial across western Europe.70 Even in Italy, where inquisitorial procedures were predominant, the old forms could still be called upon.71 If past historians regarded this as old-fashioned, the value of being up-to-date in similar matters has more recently been questioned.72 French aristocrats continued to insist on the judicial duel as the means of solving disputes between themselves, including allegations of crime, despite the strong condemnation of the church and Louis IX’s purely temporary success in forbidding it. In these cases, the need for a confession was much reduced, and therefore torture was not relied on. In England, where

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criminal trials divided the responsibility between the jury of presentment which indicted and the judge who gave the verdict, again torture was not part of the process. In Aragon, torture became illegal in 1325. Even where it was commonplace, our evidence about it frequently comes from clauses attempting to limit its use, as in Siena.73 In Vercelli in 1241 it was laid down that there should be no torture except of known criminals, thieves, or men of ill repute. In Venice, the permission of all six Signori di Notte (Lords of the Night Watch) was necessary before a man could be tortured, and at least two Signori had to be present during the process.74 Alphonse of Poitiers in his 1251 rules for his officials in the county of Toulouse somewhat euphemistically limited torture to cases in which it was proper.75 While Louis IX licensed its use in criminal cases in France by his great reforming ordinance of 1254, he added that it should not be used on anyone of good repute, no matter how poor. In 1297 the council of Ghent prohibited the torture of the town’s citizens by the count of Flanders and his officers, unless with the approval of the town council itself. Therefore, our image of prisons in western Europe should not by 1300 automatically include a torture chamber or an official specially trained in the application of its techniques; where these existed, we should not assume that they were part of normal procedure. On the other hand, there was no rooted objection almost anywhere to the use of torture against those of ill repute, and the restrictions of its use against others could easily be overcome. In late thirteenth-century Perugia, for example, there was a very rapid expansion in the cases in which it could be applied, because it got results where other methods did not.76 Philip IV’s arrest of the Templars in 1307 is notorious for its demonstration of the ease with which traditional limitations could be overcome. Before 1307 neither the order nor its individual members had seemed at all likely to be accused of ill fame. Socially a fair number of the members were above the category whose rights could normally simply be disregarded. But Philip’s case against them was that their heresy, blasphemy and sodomy were notorious, and that together these constituted crimes sufficiently grave for all restrictions to be overruled in the inquisition process. The scale of the brutality that followed had no parallels in previous French history, and showed the ease with which confessions could be obtained, even to improbable charges.77 The proceedings illustrate one of the points made at the beginning of this chapter, the difference between honourable and ordinary

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imprisonment. Initially, the Grand Master of the Order, the Preceptors of Normandy and Aquitaine, and the Visitor of France, the highestranking Templars, were induced to make public confessions before the inquisitor of Paris to most of the crimes of which they were accused, apparently by threats of torture made by the royal officials who looked after them rather than by the actual application of instruments. Once they had submitted to Philip’s desires, their conditions of detention were reasonably comfortable, even before they were handed over to the cardinals sent by a furious Clement V to assert privilege of clergy in the matter. The bulk of the Templars, however, were much more roughly treated. Philip IV’s instructions to his officials who carried out the arrests were that the prisoners should be isolated and if necessary tortured to obtain confessions. They were to be told that the Pope and the king already had proof of the misdeeds of the order; if they confessed quickly they would be pardoned. Those who held out against these blandishments were to be threatened with death. The instructions were harsh enough; on occasion the fact was worse. Templars were chained and fed on nothing but bread and water for long periods before they had a chance to make a public confession. Some were subjected to the rack and the strapedo; others had the soles of their feet burned. Hardly surprisingly, even those who initially refused to confess mostly gave in quite rapidly.78 Here there is abundant evidence of the means employed to extract confessions before open trial. The royal officials who arrested the Templars used their own initiative and methods appropriate to criminal law to ensure that there would be little or no defence, either of the order or of individuals. The period of imprisonment was certainly employed, as Beaumanoir said it might in some circumstances be, to make the case against the accused. The function of imprisonment was in this case clearly coercive. Once confession became the main form of proof in a criminal action for which there were not two eye witnesses, torture on top of imprisonment was by far the most reliable method of extracting from the defendant what the official conducting the case wanted. But by 1300 this was just beginning to be appreciated. The huge expansion of this procedure in the later middle ages and the early modern period could not yet have been anticipated. The Templar case excited so much notice and gave rise to such long-lasting legends precisely because it was extraordinary.

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It would be wrong to conclude on this grim note without mentioning the charitable activities that might on occasion at least mitigate suffering inside jails. Visiting prisoners was a Christian duty, which ecclesiastical councils had enjoined on Bishops since the time of Justinian.79 Bishop Hildebert of Le Mans found himself briefly in jail as a result of an attempt to assist Count Rotrou of Perche, a prisoner in the tower of Le Mans, who believed himself close to death; after the bishop had heard his confession and confirmed his will, Rotrou begged that his mother be asked to witness the will. Hildebert and the chanter and dean of Le Mans cathedral set off to that lady’s residence, where they were imprisoned by Rotrou’s steward who believed the dean to be implicated in his master’s capture. 80 Whether later bishops, or their substitutes, were as conscientious as Hildebert is not clear. But the thirteenth-century Droit coutumier de Cambrai laid down that visitors should be permitted in the town jail as a matter of course.81 The need to supply food and clothes created occasions for members of a prisoner’s family to come there in any case. Confessors were permitted to provide spiritual help to the inmates.82 Almsgiving was aimed at the poor, of whom no category was more wretched than prisoners; they received occasional help from this source. 83 Complaints about inhumane conditions might well bring a sharp demand for improvement from the authorities. 84 One of the ironies of the medieval system was that, although prisoners were thrust into the dark to be forgotten – it was no accident that by the fourteenth century jails in French castles were known as oubliettes – they were so in places where, in the nature of things, their predicament might come to the attention either of guards in and visitors to castles or of townsmen whose dwellings surrounded the prisons. There was no medieval equivalent of the modern high security jails built out in underpopulated countryside. Consequently, though individuals might be forgotten, the corporate body of prisoners was frequently brought to the minds of those beyond their walls.

9 RELEASE FROM PRISON

Nothing more needs to be said here either of those whose departure from prison led to their immediate execution or of those who died there as a result of disease, ill-treatment or suicide. It should, however, be remembered that a very substantial number of captives in the high middle ages are recorded as having met with one or other of these fates. Nor is there any point in elaborating much on those who obtained release by accepting the terms set by their captors, whether surrender of property or political advantage or payment of ransom or indeed the specific form of ransom represented by substantial costs of residence in jail. One typical example of the benefits accruing to a captor from the release of his prisoner may suffice here: in the mid-twelfth century, Raimond Gauceln, lord of Lunel, recompensed the liberality with which William VII, Lord of Montpellier, had released him from captivity by returning to William’s possession Lansargues, which William’s father had given his father. 1 Such events were too common to excite much interest in contemporary annals, and therefore we know little about them except that they happened. Similarly, the release at the end of their sentences of royal officials and others condemned to precise terms of punitive imprisonment caused no comment. But occasionally releases could be obtained in a very public way. It was the subject for much popular rejoicing in an army when the prison gates were opened after a castle belonging to the enemy had been captured.2 The rebels against Henry III of England in 1267,3 130

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and those in Sicily against Charles of Anjou in 1282, rushed to force open the royal prison gates as the most potent symbol of their rejection of those rulers’ authority. At Bologna in the riot of 1278 the first action of the mob was to free from jail faction leaders whom the papal legate had imprisoned there in an attempt to prevent trouble.4 The implication is that, while people in general were increasingly supportive of human justice as administered by regimes they respected, they viewed the justice of oppressive regimes as purely coercive and therefore to be undermined at the earliest possible opportunity. Sometimes only one prisoner might be the object of a mob’s philanthropic instincts, as when the people of Messina rose in riot in 1168 to free Count Henry who had been wrongfully imprisoned in Reggio by the chancellor, Stephen de la Perche, much hated as a foreigner who wielded excessive power;5 or when a man who had taken the cross was forcibly freed from Agen prison by a crowd who believed that his vow ought to protect him against torture, although he had been accused of beating a priest.6 In this case, widespread dislike and distrust of ecclesiastical jurisdiction in the south of France was probably at the root of the crowd’s anger. Similar excitement and drama might accompany the seizure by a commune of a citizen arrested by a local castellan in defiance of privilege. In Lille, for example, if the castellan refused to hand over a citizen of the town to the rewart when asked, that urban official could unfurl the flags, sound the bell, and lead the town militia up to the castle gates to command the castellan to surrender the accused.7 Though this did not bring the captive release in the full sense, it did mean the exchange of harsh detention for much more comfortable circumstances in the rewart’s jail. While relatively few men could benefit from a privilege of this sort, the militia’s appearance will have caused much stir in the neighbourhood and reminded both the castellan and others that his power was limited. Equally public but much less dramatic were releases as a result of administrative process. During the thirteenth century, when in some jurisdictions courts got clogged up and periods of imprisonment became longer than intended simply because trials were delayed, the process of jail delivery provided a solution. This process, whereby an order was sent from the government to empty the jails and send the inmates rapidly for trial, was in use in England from the 1220s, found in some Italian city states before the last decade of the

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century, and copied in France in 1311.8 It was a purely administrative measure, testifying to the congestion that had built up. The process may have resulted in the accelerated discharge of some men falsely accused; but this was far from being its aim. And it was geographically very limited in its impact. However, it is possible that jail delivery, where it existed, did help some poor victims of the system. Some of those too impoverished to pay the fines imposed on them or to repay their debts might be consigned to prison not for a specific term at the end of which they earned release, but until they could pay. If their relatives either could not or did not take pity on them, in prison they may have remained. Although I have found no concrete evidence to support the suggestion, in these circumstances jail delivery would have provided their one clear hope of escape. At the other end of the social spectrum, and much less publicly, a few important captives had always won their freedom through the intervention of influential men on their behalf. For example, Pope Alexander II in 1067 prevailed on Count Fulk le Réchin of Anjou to release his brother Geoffrey from the chains in which he had held him for many years; unfortunately for Geoffrey, shortly after the Pope left France he was recaptured.9 When lords granted favours of this kind, especially to churchmen, they were participating in the standard diplomatic interchange that characterized the upper levels of European society. Sometimes the church benefited substantially from wielding influence in this way. In the early eleventh century Odilo, abbot of Cluny, ‘with great ingenuity’ achieved the release from prison of a man who, with his four brothers, owned a property close to the great monastery in the Mâconnais. In return, the man recognized Odilo as his lord and arranged that on his death his fifth share of the family property should go to the monastery. This proved to be the first transaction in a series whereby in the end all five parts became the property of the monks. 10 Where the church led the way in requesting mercy, ordinary laymen rapidly followed suit. By 1300, pardons were granted with great frequency to those in Italian jails.11 By the early fourteenth century, when the evidence surviving is sufficient for us to see what happened, French kings were issuing pardons on a considerable scale, both to those who had actually been convicted and to others to excuse them from standing trial.12 Usually some favoured relation or friend made the request; sometimes a sum of money had to be paid to let the captive off the hook. These practices were imitated further down the social

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scale. In the case of the bailiff of Thiers, discussed in Chapter 4, both lord and prisoner had to pay for the temporary release of the bailiff to be made permanent. In Italy and France there was usually no perceptible relationship between the seriousness of the offence alleged or committed and the chance of a grant of pardon. It was a question of whether king, lord, podestà, signor or official wished to bestow a favour on the person soliciting it or not. Yet all the pressure from ecclesiastics and relatives imaginable was insufficient to secure freedom for those who had seriously aroused the wrath of kings. Ferrand of Portugal, count of Flanders, who fought against Philip Augustus at Bouvines, was held in the Louvre for 12 years, until his release in 1226, 3 years after the king’s death. Similarly Henry of Castile, who had betrayed Charles I of Anjou in 1268, remained in prison until 1291, 6 years after Charles’s death.13 In the eyes of their captors, these men were fortunate not to have been executed. They deserved no pity. Although in both cases they did ultimately obtain freedom, the conditions for Ferrand’s release were so harsh as to cause trouble between France and Flanders for many years afterwards; and Henry of Castile had to surrender all future political ambitions. Sometimes release was ascribed to supernatural forces. To return to the subject discussed in Chapter 3, eleventh-century people were particularly liable to account for unhoped for escapes from chains and jails by ascribing them to the miraculous interventions of saints. While we have abundant evidence through the survival of books of miracles for the workings of St Foy of Conques, St Leonard of Noblat, St Dominic of Silos, St Mary Magdalen, and the Virgin of Rocamadur, many other saints were also credited with the same powers. For example, Cosmas of Prague recorded that St Adalbert and St Wenceslas were effective prison-openers.14 As Sigal has pointed out, these saints were all long dead before they worked their miracles; this permitted them to appear in visions to those who prayed to them and give instructions for the escape, a feat that a living holy man could not have performed because he could not have got close enough to the prisoners to break their bonds.15 As has already been explained, it was local circumstances that originally turned churches like Noblat and Conques into important shrines. But they rapidly became places of pilgrimage for men from far afield. Most famously, Bohemund, prince of Antioch, made his way to Noblat 3 years after he was ransomed in 1103 from the jail in

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Asia Minor in which he had been held by the Danishmend.16 Although Bohemund in practice owed his freedom to the generosity (and political good sense) of King Baldwin I of Jerusalem, his pilgrimage to Noblat was a clear sign that he felt his prayers to St Leonard had been answered. The saint’s intervention had prompted the human action. Presumably there were other cases in which what was presented by the monkish recorders as a miraculous escape from chains might equally easily be accounted for by some unrecorded human action. But the large numbers of broken fetters placed around the altars at Conques and Noblat were proof of real gratitude to the saints on the part of many men. The sense that prayers had been answered was widely felt. To the modern secular mind, it perhaps comes as a surprise that not all the beneficiaries of such miracles were necessarily very deserving. In particular, St Foy’s capriciousness may seem hard to fathom. Bernard of Angers described it thus: It makes no difference whether a person is held in prison justly or unjustly . . . Those whom arrogance had once lured into crime come forward from confinement into the light, reformed.17

For eleventh-century clerics, the intervention of the saints in human affairs illustrated the characteristics of the Godhead. Behind St Foy’s unconcern about the innocence or guilt of the beneficiaries of her miracles there lay an Augustinian notion of God as the bestower of grace on humans in accordance with principles not evident to man, and of the Son of God as the One whose compassion was touched by Mary Magdalen and by the thief crucified beside Him. The audience for such miracles had been taught to believe that, although it was necessary to render to Caesar the things that were Caesar’s, the only true justice a man should look for was to be found in God. They knew from Scripture that Pontius Pilate had allowed Christ to be crucified, and that Roman legionaries were responsible for the deaths of Peter and Paul; they knew from saints’ lives that the early Christian martyrs had suffered their fate through the wrongheadedness of imperial officials. These religious facts fortified what they had learned from experience, that human sufferings were not in proportion to deserts. Consequently most men of the eleventh century were not programmed to regard the secular powerful, whether count or castellan, as representatives of some higher human

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justice which should command their respect. To be condemned to prison by the powers of this world was not therefore proof of, or even a prima facie case for, wrong-doing; and where wrong action was involved, God would hear the prayer of the repentant sinner. This frame of mind St Foy shared with a tenth-century aristocrat, St Gerald of Aurillac, who permitted prisoners to escape despite his belief in their guilt and despite his official position as a judge in his area.18 His conduct was imitated by some eleventh-century figures. Herman of Tournai told how Odo of Tournai, in receipt of many gifts for the refoundation of St Martin’s in the city, spent much of the money in ransoming captives.19 In the end, his compassion towards such men and towards paupers grew so excessive that his fellow monks had to strip him of executive power. More surprisingly, the Book of Ste Foy attributed to the aristocrat Gerbert the habit of ransoming those in jail.20 While in Odo’s case his generosity was clear proof of holiness, even if of a rather exasperating sort, Gerbert had not yet at this point enjoyed the miracle that brought about his conversion to God. Bernard of Angers portrayed his action as if it were quite common among the great, a deed of liberality that confirmed high status. By the twelfth century, the frame of mind that had accepted easily miraculous escapes from prison began to disappear. As Sigal has pointed out, there was a sharp decline in the number of such stories in miracle collections, and where they did occur, the events described usually happened far from the place where the miracles were written down.21 The escape miracles in the 1172–3 collection of Our Lady of Rocamadour in Upper Quercy occurred in Lombardy, Majorca, Gascony, Lyon, Savoy, northern and eastern France, nowhere near the shrine.22 Indeed, the author of the Prologue to the collection drew specific attention to this fact: Who can properly describe with due praise and admiration the prisoners who carry their heavy chains, more often doing so from afar rather than nearby?23

While to the author this was proof of the widespread fame of Our Lady of Rocamadour and of the great devotion she inspired, Sigal’s insight might lead a modern reader to focus on the fact that the tyrannical captors who created the opportunity for the miracles had ceased to be neighbouring and in some cases personally identified lords

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and become remote, though still terrifying, figures. The experience of miraculous release was by now removed from the everyday lives of the listeners. This remoteness was well illustrated in the growing favour enjoyed by stories of escape or release by ransom from Saracen captivity, which became very popular during the period of the Spanish reconquest and the early crusades. Clearly, one explanation for this was that such releases actually took place, and were increasingly planned for, as we shall see. But it is interesting that the additional miracles of St Leonard added in the twelfth century describe only either escapes from the Muslims or escapes at home in circumstances where ransom was specifically forbidden.24 In other words, the saint now apparently intervened only when human circumstances made it evident to the audience that the victim’s imprisonment was unjust. The explanation for such a change is not obvious. Power might be as brutally exercised in the twelfth as in the eleventh century. But T.N. Bisson’s study of the complaints of Catalan peasants in the twelfth century suggests that appeals against local oppression to a higher secular authority, in this case the count of Barcelona/king of Aragon, were no longer seen as pointless, even if the appellants alleged abuses by the count’s servants, or in one case by the count himself.25 The growth of what have sometimes been termed ‘territorial lordships’ across western Europe in the later eleventh and twelfth centuries was slowly creating a new situation. The sense of helplessness that marked victims in the eleventh-century miracle stories was beginning to dissolve in the face of a more clearly perceived hierarchy of authorities, some of which might sympathize with appellants. Human injustice might possibly now be met by human remedy. Intellectuals of the twelfth-century renaissance were prominent among those expressing a relatively optimistic view of rulers as sources of justice. In John of Salisbury’s famous words: The prince is . . . the minister of the public utility and the servant of equity, and in him the public persona is borne since he punishes all injuries and wrongs, and also all crimes, with moderate equity.26

This Roman-law inspired view painted princely punishment (which included imprisonment) as necessary for the good of the people as a whole, and indeed protective of the majority. Admittedly, it was only in the top reaches of the hierarchy that true equity could be found.

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But lesser and more fallible dispensers of justice would themselves incur princely punishment if they failed to respect true values. How far John was in the van of public opinion on this subject cannot be established. However, the popularity of appeals to princes and kings in the twelfth century argues for a widespread feeling that superior power was to be equated with power exercised along more equitable lines. Whether or not this opinion was the fruit of blind optimism, it is true that over time the development of professional legal tribunals to assist rulers meant that appellate decisions were reached at least more impersonally, if not necessarily more justly. In the later twelfth and the thirteenth centuries, confidence in human institutions grew apace. As rulers claimed to keep the peace, they created in the majority of their subjects a sense of being protected. Only where a knight was fighting far from home or fighting against his lord was he frequently reduced to the total impotence that had been common for all classes except the greater lords in the eleventh century. The earlier vulnerability of merchants or other travellers was much reduced in certain areas by the self-interested protection offered by princes like the count of Champagne or the count of Flanders. Where rulers took it upon themselves to prosecute criminals, bandits and highway robbers might find the tables turned on them. By the thirteenth century, royal safeguards were available to at least some foreigners travelling through the countryside. Though human help was often ineffective or too late, at least it could now be importuned, by peasants as well as by the rich and influential. Pleasant though this development was for most people, its results for those accused of crime were not on the whole welcome. In the first place, the undiscriminating charity that had to some extent counterbalanced injustice in the earlier period came to be rather more narrowly channelled. As lords institutionalized means of raising their own ransoms from their dependants, and merchants benefited from the growth of credit transactions to pay for theirs, charitable gifts for this purpose became in any case less necessary for any but the poor. Consequently, those who felt a religious duty to assist in the freeing of prisoners tended to put their money increasingly towards captives taken by the Muslims, particularly those seized in Spain and reduced to slavery. Throughout the twelfth century the redemption of captives by Christians resident in the northern kingdoms of Spain grew in frequency; wills made donations for this purpose, hospitals provided alms for captives, and kings, aided by the new military

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orders, promoted it by organizing the mechanisms.27 Similarly in Genoa, twelfth-century wills frequently made provision for the ransoming of captives, either from Pisan prisons (war with Pisa was endemic in the twelfth century) or from infidel jails (Genoese citizens engaged in trading ventures in North Africa, Outremer or Andalusia could find themselves incarcerated far from home).28 By the second half of the thirteenth century, the papacy was rallying Christians across Europe to assist in redemption of those held by Muslims. There could be no doubt that they at least were unjustly held, whereas by then releasing prisoners held in jails at home had become more problematic. If they had deserved their fates, what was the point? Public opinion slowly turned against succouring those in jail. Along with the growing acceptance of John of Salisbury’s belief that punishment of criminals was for the common good, there went the view that every criminal action should be punished, and that harsher punishments than had been inflicted earlier were justified. It was not in the criminal’s interest that he should be allowed to get away scot free, because it endangered his soul. Furthermore, if people got into trouble with the authorities, there was a good chance that they were to blame in some way or other, whether or not they were guilty of the actual charge laid against them. Enforced confession would benefit them. This appears to be the thinking that lay behind the acceptance of torture as a feature of the criminal law. Those looking at prisons from the outside hardened their hearts. Where they did strive to secure pardons or releases for prisoners, it was for those individuals known to them or for relatives, not usually for the poor or undefended as a category. If humans showed less pity, God remained a source of mercy for captives. His saints were still a peculiar channel for this, even when their miraculous interventions to sunder leg-irons or break open bolts became rare. Hence, in the later twelfth and the thirteenth centuries, patronal festivals were occasions for the release of prisoners from town jails. Although the first uncontroversial evidence for this is as late as 1315 at Treviso, the habit by then appears to have been well established. At Treviso, a special feast was introduced in that year to celebrate the candidacy for beatification of Henry of Bolzano. The jail gates were opened only to debtors, and only to such of those whose freedom was voted by a majority of the citizens. Here then there was a clear assertion that humans could rightly judge where

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mercy should be shown; but it was set in the broader context of a religious gesture that firmly put divine above human law, at least for one day.29 The release of prisoners to mark the feast of St Ercolano at Perugia was less restrictive towards the offences of its beneficiaries, but permitted only two prisoners each year to go free.30 Though few people benefited by them, the patronal festivals kept alive the memory of the more active divine intervention that had characterized the past. Despite the standing their power of punishment conferred upon them, there were occasions on which rulers also might decide show mercy. The most public way of achieving this was to offer an amnesty to all captives. One of the earliest recorded was ascribed to Eleanor of Aquitaine, duchess of Aquitaine in her own right and queen of England by virtue of her marriage with Henry II. After rebelling against her husband in 1173, she was confined for nearly 16 years, first in Chinon and then at various English castles, usually Winchester. According to the chronicler Roger of Howden, when her husband’s death in 1189 set her free she took steps to liberate all prisoners in the realm. Her reason, that captivity was ‘pernicious for humans’, reflected personal experience unusual among the ruling classes,31 and a unique display of sympathy. If the story is true (elsewhere Howden credits Richard, not Eleanor, with the amnesty),32 it is the only known occasion on which an ex-captive was able to benefit fellow sufferers. But there is no supporting evidence. If Richard issued the amnesty, then it was a public way of marking his accession, showing his intention to be a less harsh ruler than his father, and winning popularity. He was not the first monarch to do this. Earlier, the coronation of William II of Sicily in 1166 was marked by the opening of prison doors in order ‘to create love’ for the new regime which, given that the new king was only 12 years old, was distinctly in need of whatever strengthening it could secure among its subjects.33 Other rulers exploited a general amnesty for prisoners as a means of earning a popularity when faced with serious rumbles of discontent among their subjects. So Philip IV of France offered one in 1303, when he had suffered a serious defeat in battle and his reputation had become very tarnished as a result of the heavy war taxation he had imposed on both laymen and clergy.34 With the same regard for their own advantage, rulers commonly conferred individual pardons on those prisoners who were willing to join the army or the navy in time of war. When Charles of Anjou planned his great

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expedition against the Greeks in 1281–2, certain prisoners of known military skill were freed to assist in the campaign. 35 Edward I was lavish in grants of this type.36 Even Pope Martin IV found himself so much in need of military expertise in the Romagna that in 1283 he permitted the release of the notorious Guy de Montfort, condemned by the Church to imprisonment for the murder of his cousin Henry of Almain, so that Guy might reinforce the troops of Charles of Anjou on papal territory.37 Clerics preaching the crusade would beg rulers to show similar liberality in this cause, to swell the armies of the church. According to the Grand coutumier de Normandie, while those who had already been condemned for a crime could obtain no advantage from taking the cross, those awaiting trial could postpone the dreadful moment by going on crusade.38 Presumably if they returned alive their chances of not being arrested again for the same offence must have been high, even if they did not enjoy an official pardon. Gerald of Wales, describing Archbishop Baldwin’s preaching mission in Wales in 1188, commented that at the castle of Usk: To the great astonishment of everyone present, and it was, indeed an extraordinary circumstance, some of the most notorious criminals of those parts were among those converted, robbers, highwaymen, and murderers.39

Given the alternative that faced them, historians can hardly share the spectators’ astonishment that such men were willing to join the armies of the Third Crusade. Individual captors might release individual prisoners for a whole variety of often rather singular reasons. A case taken before the Parlement of Paris in 1267 told of the arrest on suspicion of robbery of l’Arbalestier by Hugh of Motte. Hugh enquired of his neighbour Luke what he thought about l’Arbalestier’s guilt, to which Luke replied that he was sure l’Arbalestier was a robber and deserved what was coming to him. However Hugh later released l’Arbalestier without charge, and the newly liberated man celebrated his freedom by burning down Luke’s house. Luke maintained in court that this had been Hugh’s design in releasing him; Hugh denied it, contending that his motive had been a promise by l’Arbalestier to help him catch a particularly wicked robber called le Mesle. 40 Although Luke failed to prove his case, Louis IX later ordered that

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he be given 100 sous to help cover his losses. Whether l’Arbalestier in fact helped to catch le Mesle is not recorded. But his release demonstrated the discretion a castellan might wield over whether or not he prosecuted those in his custody. There were, however, limits to that discretion. When in 1282 the bishop of Clermont released a knight accused of killing his wife, in return for a fine of 600 l.t. and a promise to go to Palestine and stay there till the bishop permitted his return, the Parlement of Paris annulled this judgement and ordered the bailli of Clermont to proceed against the knight in the usual fashion.41 Alternatively a captor might release his prisoner in order to guarantee his own safety, as Pierre Roger, lord of Cabaret set free Sir Bouchard, lord of Marley during the Albigensian war. Pierre Roger feared the army of French crusaders coming into his neighbourhood and hoped to meet with generous treatment if he had shown generosity first. 42 In this he was successful. So too, it appears, was William VII of Montpellier in preventing tedious litigation against him by men who had good reason to hate him, when he agreed to release their father whom he had held in prison for many years.43 Beaumanoir mentioned the possibility of lords releasing prisoners provided they accepted servile status, though this may well have been an out-of-date custom by the time he wrote.44 All those who were released by non-miraculous means might yet find themselves unable to go free if they encountered the quite widespread customary obligation of paying their jailer for unlocking their fetters. In Cambrai in the thirteenth century it was laid down that anyone in irons had to pay 12 deniers for release, while the person in the stocks got away with 4 deniers.45 In the case of those who had been imprisoned because they could not pay outstanding debts or fines, this relatively small sum must often have put a barrier between them and their happy prospect of breathing fresh air again. This charge added yet more weight to the jailer’s burden of unpopularity. In addition to sanctioned releases, there were escapes, a theme much discussed in the literary sources. Saba Malaspina’s description of Conrad of Antioch’s escape from the castle of Montecchio after he had seen his guards fall into a deep sleep is characteristic of the genre. 46 Its literary expression owed something to Virgil, Aeneid bk.2 l.265, as did many other medieval descriptions of similar escapades. But not all escapes were equally dignified. Simon Bloet had to climb

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through a sewer to get out of his cell.47 Worse, Gruffudd ap Llewyllyn lost his life when, according to Matthew Paris, he attempted to climb out of the tower of London, and the rope made of tapestries and sheets on which he was relying broke under his weight.48 Those in authority tried their hardest to make escape too dangerous to be worth it. The Customs of Touraine and Anjou laid down what was a common rule, that if a man imprisoned on suspicion of murder or another crime that carried the death penalty escaped from prison, he would be judged automatically to be guilty of that offence and hanged when recaptured.49 But the threat was not likely to move a suspect who believed his chances of securing a favourable verdict to be negligible. Besides, if the escapees were men of substance, even if accused of treason, hanging them without trial might cause trouble. The large number of influential supporters of Corradin who escaped from captivity in the course of 1268 from various jails in the Regno and in Italy can only make the historian wonder whether Charles of Anjou was trying as hard as he could to hold on to them. Either his reputation for ruthlessness or his reputation for cold efficiency must yield. In practice, recapturing escaped prisoners was always difficult because it normally involved tracking them over more than one jurisdiction, and officials rarely worked as hard to get their hands on other men’s escapees as on their own.50 On balance, attempting escape was a sensible strategy, with what appears to have been a high success rate. The numerous ways in which release might be obtained will have held out at least a glimmer of hope to all prisoners, while making them very conscious of the randomness of fate. It was by no means always the most deserving who found themselves outside the prison gates again. The best ally a prisoner could have was a committed friend who stood in good odour with the ruling powers. But wealth also could play its part in securing release. Once beyond the prison gates, the worst was over. Nevertheless most ex-captives then found themselves grappling with a world grown more hostile since they last saw it. After he returned from imperial territory, Richard Lionheart was persuaded that it was necessary for him to go through another coronation ceremony, in order to wash away ‘the disgrace of captivity’.51 Lesser men faced the financial problems caused by taking out loans to pay their prison costs and their fee for unlocking their fetters. Those who had been imprisoned as part of a criminal process found their good name in the community under serious strain. It would be

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easy for them to sink into the pit of ill-fame. Therefore, the immense sense of relief that accompanied release from the miseries of confinement was often far from unalloyed.

10 ECCLESIASTICAL IMPRISONMENT

It may seem paradoxical that the Church should have led the way in developing and putting into practice imprisonment as a form of punishment, given the stress that has been laid in previous pages on a clerically-inspired sense of the fallibility of human justice and on the Christian obligation to extend charity as a means of moderating the inhumanity of secular powers. But as punishments for crime inflicted by the secular courts grew harsher, so canonists came under pressure to inflict proportionate hurt on clerics guilty of serious crimes. Yet they could not impose the usual lay penalties because these would involve the shedding of blood and therefore constitute a breach of canon law. Imprisonment seemed the only option. As to the treatment of heretics, in many ways the twelfth century saw a replay in western Europe of the ambiguous attitudes towards coercion that had marked the clergy of the later fourth and fifth centuries in the Roman empire. Though clerics of both periods embraced the incarceration of heretics, they did so initially with heavy hearts, unable to imagine any other way of containing the effects of dangerous preaching.1 The late twelfth-century preacher Peter the Chanter, for example, proposed life imprisonment for the obstinate out of a deep horror for judicial execution which had been supported by some of his contemporaries.2 As was usually the case, nobody at first saw a positive case for imprisonment; nobody thought it would do any good to its victims. Its only function was to prevent damage to society. Only once it had become common was it 144

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justified, following the monastic model, as a sensible means of bringing about repentance. These developments lay far in the future in 1000, when neither criminous clerics nor heretics were perceived as problems. The one sphere within the Church in which imprisonment was an accepted punishment by 1000 was in monasteries. The assumption that certain sorts of sin were infectious and therefore dangerous in a close-knit community was common in the middle ages.3 Hence the isolation of monks or nuns who misbehaved themselves was logical, given that banishment from their houses could only be a temporary expedient. In the course of the eleventh and twelfth centuries, resort to imprisonment grew commoner. The nun of Watton in Yorkshire, made pregnant by a young canon, was punished by being shackled as she lay in prison which, if the shackles should be taken literally rather than metaphorically, suggests that nuns were not necessarily accorded gentle treatment.4 The miraculous termination of the nun’s pregnancy, along with the sundering of one of her fetters, was the result of advice given to her in a vision by the recently deceased Henry Murdac who had been archbishop of York. The second fetter fell off later. Hers was a story of true and effective penitence. Men were similarly punished: under the rule of Fontevrault, rebellious brothers were imprisoned.5 By 1206 the Cistercian order had licensed prisons for the enclosure of fugitives and evil-doers among the brothers.6 By the thirteenth century, Carthusian and Carmelite houses incarcerated those who first ran away and then sought to return to the monastic way of life.7 The exact meaning of monastic terminology relating to punishment does, however, demand investigation. For example, in the later twelfth century Jocelin of Brakelond several times referred to the sentence of imprisonment and exile being imposed on monks of Bury St Edmunds who dared to query the abbot’s management of the monastic temporalities. But in one case, that of a monk accused of conspiring against the abbot’s authority, excommunication was followed by chaining for a whole day and night in the infirmary.8 In the text, the severity of this sentence was drawn to the reader’s attention, suggesting that most instances of imprisonment were even shorter; it was apparently little more than a symbolic reinforcement of the real punishment, excommunication. In the same text, exile seems to have meant a short stay at one of the abbey’s dependencies at Castle Acre. Ritual humiliation and temporary loss of influence in

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the abbey were apparently of the essence of these terrible-sounding punishments. How far this was true of other monasteries is an open question. Benedictine houses like Bury St Edmunds may have preserved the moderate temper of their founder at a time when the new monastic orders were treating culprits more harshly. Beyond the monastic gates in 1000, ecclesiastics did not yet nourish any doubts about their competence to punish laymen, whether by the sword or by spiritual ban. Bishops and abbots of churches enjoying immunities were deeply involved in secular jurisdiction. Their courts functioned to sort out claims and punish crimes among the men subjected to their authority, and in some cases also to enforce the Peace or the Truce of God. Their justice was a summary as that found in courts of secular lords, the methods of proof were the same, the outcomes often equally brutal. The one advantage enjoyed by such ecclesiastical lords was the possession of spiritual as well as secular sanctions; they could excommunicate or send on penitential pilgrimage those whom they strongly suspected of crimes that they could not prove, or those whose status protected them from other punishments.9 As a consequence, bishops and abbots had even less need of jails for custodial purposes than had eleventh-century secular lords. The twelfth century saw a slow but steady erosion of ecclesiastical involvement in secular jurisdiction. The clerical purity at which the eleventh-century ecclesiastical reform movement aimed was now seen as inconsistent with the wielding of the secular sword. At the second Lateran Council in 1139 it was decreed that no cleric should be directly involved in jurisdiction of blood – criminal jurisdiction of cases for which the penalty might be either capital punishment or mutilation. The nomination of lay officials to execute the sentences of the existing church courts was a favoured solution to this new problem; it continued to be acceptable in many places throughout the high middle ages. But some critics, both clerical and lay, thought it a compromise in tune with the letter rather than the spirit of the decree. Consequently certain bishops and abbots faced rebellion against their jurisdiction.10 Others quietly ceded their traditional rights without putting up a fight. In towns all over northern and central Italy much jurisdiction passed smoothly from bishops to the leading townsmen.11 In the great episcopal state of Cologne, the people of the city took over the administration of what had once been an important episcopal right and source of income.12 In France, Louis VII and Philip Augustus seized the opportunity

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presented by disputes on the question to reserve the right of high criminal jurisdiction for their own officials when they confirmed charters of privileges for religious houses.13 Where bishops and abbots did preserve their jurisdictional rights, they tried to do so inoffensively. Instructive here was an agreement made between the abbess of Fontevraud and Geoffrey de Montbazon, whose job it was to act as executioner for the abbey. In 1278, Geoffrey persuaded the abbess not to order the burning of a young girl who had stolen from her mistress, but to allow her instead to go on a pilgrimage to Rocamadour. In return for this favour, he acknowledged that he had no right to interfere with the abbess’s court’s judgement; this change of sentence represented an act of grace on the abbess’s part.14 Her concession was probably motivated by concern about forcing her executioner to inflict a punishment that he thought unjust; she chose to show mercy rather than face local anger. One notable exception to this rule that churchmen kept a low profile when passing judgement in criminal cases was, ironically, to be found in the papal state, where the papal right to exercise full criminal and civil jurisdiction through the agency of provincial rectors remained intact and much insisted on, despite privileges of limited exemption granted individually to certain communes.15 Papal rectors were lavish in their use of imprisonment, often causing trouble thereby. For example, in 1278 the rector punished a riot in Bologna by imprisoning magnates from both parties. Their supporters rushed to free them from the Palazzo Communale to which they had been taken, thereby demonstrating the rector’s impotence in the face of mass action.16 This was just one small illustration of the many provided in the later thirteenth century of the proposition that papal claims to temporal authority lacked the physical force to make them a reality. Such lesser ecclesiastical lordships as did continue to take responsibility for secular jurisdiction, though not for the execution of sentences, found themselves under a growing obligation to provide prisons for the remand of those accused of crime. The Chronicle of Jocelin of Brakelond offered an intriguing picture of the difficulties this caused at Bury St Edmunds in the later twelfth century, when the Sacrist who was in control of the town of Bury St Edmunds refused to allow the Cellarer, who had control of certain areas in the suburbs, use of the town prison for the safe custody of thieves

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captured in his fee; hence the Cellarer was often abused for default of justice when thieves escaped.17 When two monks of the same house could not agree on such a point, it is unsurprising that similar squabbles over custody were, by the thirteenth century, widespread elsewhere in western Europe. The partial ecclesiastical withdrawal from secular criminal jurisdiction did not, however, leave clerical lawyers unoccupied. Far from it; the sphere of ecclesiastical jurisdiction grew steadily throughout the period, to the chagrin of some important laymen who tended to see it as more of a threat to their own power than historians, enjoying hindsight, think it to have been.18 Canon law in upholding benefit of clergy (the exemption from trial by a secular court that was enjoyed by all clerics) provided procedures that helped ecclesiastics to resist when laymen imprisoned clerics on their own initiative, without being requested to do so by an ecclesiastical official. The complaint of the Bishop of Maguelonne in 1140 against William VI of Montpellier that he had illegally imprisoned some local clergymen19 was one of many that came to the courts in the twelfth century. But the enforcement of a canon law judgement against an obdurate lay captor remained problematical; those lords who were not deterred from imitating William by a threat of excommunication were not always forced by their secular superiors to desist. The ecclesiastical courts dealt with two different kinds of cases, failures by clerics to live up to the standards demanded of them, whether by breaching the criminal laws of the land or by not complying with clerical discipline, and cases concerning the enforcement of canon law on laymen, usually in matters of marriage or oaths or wills, particular aspects of life seen as having strong religious connotations. Since the great majority of cases that came before the church courts did not involve crime, there was initially little call for custody of those accused. Most litigants were anxious that solutions to their problems should be reached as soon as possible. The commonest exceptions, clerics accused of minor infractions, would not usually take the risk of failing to turn up for trial on the appointed day, because it would result in the loss of their jobs if they were banished for default. The one major problem came when a cleric was accused of a serious crime, for example treason or murder. William of Paris, writing in the 1260s, shed light on the church’s unwillingness to give judgement in such a case. He enjoined those

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who knew themselves to be guilty of a serious offence not to answer the citation to the court. Rather, they should accept with humility the automatic sentences of excommunication and banishment that would follow their failure to appear, remove themselves hastily from the area, repent, and pray that in the future fortune might again favour them. Only if a cleric was innocent and knew nothing could be proved against him should he appear in court. Even then, he should first get his most influential friends to plead with the official of Paris that his imprisonment should be honourable (curiale), and that he should not be subjected to torture.20 This advice, found in an official formulary for use in the diocese of Paris, is evidence of the church’s reluctance to carry out the law if there was a chance of persuading the culprit quietly to run away. It was not therefore surprising that laymen frequently suspected the clergy of complicity in escapes from jail by felonious clerics. By the second half of the twelfth century, as the inquisitorial process of enquiry became normal in the church courts, a delay between the arrest of a cleric and his trial became necessary, in serious cases at least, in order to find witnesses and permit all appropriate enquiries to be conducted by the judge appointed to the case. In the meantime, the accused could not be allowed to escape. The church, possessing few prisons and even fewer guards, often found itself unequal to the task of detaining him or her. For example, when in 1266 the prévot of Compiègne handed over a delinquent cleric to the monks of the local monastery to imprison, the cleric escaped. The prévot rearrested him and returned him to the monastery. But the mayor and the burgesses of the town were so angry at the monks’ incompetence in the matter that they beat them and locked them up in the belfry by way of punishment.21 The Parlement of Paris’ response, that of punishing both the individuals involved and the commune as a whole, did not solve the problem of inadequate security in ecclesiastical jails. The incident suggests that monastic ergastula had, by the thirteenth century, rather little in common with ordinary jails. Consequently churchmen often turned to powerful laymen with castles or to towns with jails to assist them in holding clerical defendants. An element of confusion between the jurisdictions crept in by this means. This confusion was increased in the case of clerics found guilty of crimes that would by the later twelfth century have warranted the death sentence had they been laymen. Once convicted, such men

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were frequently sentenced to life imprisonment. Again, secular officials usually had to provide the prison. There were circumstances in which they were more than glad to do so. At Siena, the ruling Nine insisted that clerical criminals be lodged in the communal prison so that they could not be assisted to escape (presumably by fellow clerics).22 Exasperation with episcopal officials’ unwillingness to guard jails properly lay behind the demand. Once behind the doors of an ordinary jail, a criminous clerk might find benefit of clergy less of a privilege than he had been led to expect. On the other hand, most lords and towns thought guarding such clerical prisoners both expensive and burdensome. Rulers had a clear interest in the punishment of criminous clerks, and an even clearer one where they had initiated the proceedings, as they usually had for treason and frequently also for murder. A notorious example from the end of our period illustrates well the diplomatic problems that could arise on the issue. In 1301, Philip IV of France ordered the arrest of Bernard Saisset, bishop of Pamiers, on an accusation of treason. Saisset’s detention by royal officials clearly breached clerical privilege; and Saisset was a protegé of Pope Boniface VIII. After the bishop had been kept for some weeks in a house in Senlis, Philip accepted that his action was open to question, and therefore handed Saisset over to the archbishop of Narbonne, Giles Aicelin, for safekeeping. But this was insufficient to calm Boniface’s wrath. There followed what was perhaps the most famous of all the clashes between church and state in the middle ages, in the course of which the Pope threatened the king with deposition and the king threatened to call a church council at which Boniface would in his turn be deposed as a heretic. Only the Pope’s death in 1303 put an end to the violent crisis (though the threat of his posthumous trial for heresy rumbled on until 1311).23 By contrast, the later case of Guichard, Bishop of Troyes, while also underlining the Church’s inability to resist arrests of clerics by royal officials or even to insist on their immediate transfer to ecclesiastical safekeeping pending trial, caused little trouble between Pope and king. Guichard, who was accused in 1308 of having murdered Philip’s queen by sorcery and a number of other crimes, was transferred from the archbishop of Sens’ prison to that in the royal castle at the Louvre, a violation of canonical privilege, and yet one that was accepted calmly by Pope Clement V.24 The main reason for this was that the Pope’s attention was absorbed at that time in the Templar

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affair; but he may also have thought that Philip had some moral though no legal right to detain in his own prison the alleged murderer of his wife. The nomination of the dean of Sens as the official guard of the prisoner was designed to set clerical scruples at rest, but in fact it demonstrated the feebleness of clerical privilege where a determined ruler complied only with the letter, not the spirit, of canon law. In Guichard’s case, imprisonment became punitive almost by default. The bishop remained in the Louvre for three whole years while an inconclusive inquest was conducted into the allegations against him. In the end, Clement transferred him to a see in Bosnia to prevent further awkwardness, although by that time he was known to be innocent of the most serious charge made against him. These famous incidents were singular. Had they been commoner, the French church would have found itself compelled to make better provision for imprisoning its own members. That it did not point to the relative ease with which church and state normally reached a compromise on the treatment of those privileged by benefit of clergy who were accused of serious crime. Both Saisset and Guichard were bishops and therefore of necessity figures of consequence. At lower levels of the ecclesiastical hierarchy there was less chance of royal involvement. For the most part, ecclesiastical courts continued quietly to mete out to wrongdoers spiritual penalties, defrocking and excommunication for delinquent clerics, penances and excommunication for delinquent laymen. The only major problem occurred when a cleric was accused of committing a serious crime. In England the Becket conflict of 1164–70 turned on whether such clerics should, after defrocking, be handed over to the secular courts for further punishment. Though the canon law answer came to be that they should not, responsible churchmen grew increasingly worried by the allegation that they condoned crime, and were therefore willing to compromise on specific cases. In the course of the thirteenth century, they tended to favour punitive imprisonment for serious offences by the clergy. In 1298 Boniface VIII formally introduced imprisonment into canon law as a fitting punishment:

Although it is evident that the use of prison is authorized for the prisoner’s custody and not for punishment, we have no objection if you send members of the clergy who are under your discipline, after a confession of crime or a conviction, to prison for the performance of penitence.25

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This ruling, endorsing what had already become customary, solved the problem of what to do with a serious offender, but not the problem of how to find a suitable place for his incarceration. In practice, by 1298 brief incarceration was already well established also for a small number of minor clerical offences. For example, clerics whose testimony in a court of law had proved to be mendacious might find themselves in jail for a short period, as a forceful expression of the court’s anger.26 With such minor exceptions, and the major one of the occasional serious criminal among the clergy, imprisonment was generally thought to be an expensive and unnecessary resort for most categories of offenders against canon law. As William of Paris’s formulary made clear, self-banishment by penitent offenders was seen as a preferable alternative from almost all points of view except that of the angry lay onlooker concerned with law and order. However, the Church’s response to heretics could not be, and long had not been, so complaisant. Whereas most offenders against ecclesiastical authority simply injured themselves, from the early eleventh century heretics were recognized as posing a danger to the public, because they infected others. The varied responses by local authorities, both lay and ecclesiastical, to the early manifestations of popular heresy worried the popes and their advisers. On the one hand, they accepted the canon law prohibition on coercion as a means of converting those in error; repentance and the subsequent re-acceptance of orthodoxy were required to be acts of free will. On the other hand, they could not tolerate the open teaching of what seemed to them vicious and destructive doctrines. 27 As had happened in the fourth and fifth centuries, the social need for suppression eventually triumphed, and persecution began, frequently because there was pressure from lay powers for a swift end to the threat. Where official rebuttal of deviant doctrines did not at once bring about acknowledgement of error on the part of the heretics, ecclesiastics had to use force. The local bishops, on whose shoulders the burden of choosing the appropriate action initially rested, found the challenge insupportable. In 1148 Pope Eugenius III called a general synod at Reims, at which a heretical leader Eon de l’Etoile who had been influential in Brittany was condemned to perpetual imprisonment. Sigebert of Gembloux related that the possibility of capital punishment or mutilation was raised, but that the Pope himself ordered custody.

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William of Newburgh suggested that Eon’s death in prison very soon after his trial was a mercy, since many of his unrepentant followers were later taken from prison and burned (presumably either by a mob or by the decision of a local lord).28 Papal endorsement of perpetual custody in Eon’s case was intended to protect the people of northern France from heresy without executing the heretic, in accordance with the Second Lateran Council’s prohibition on ecclesiastical involvement in jurisdiction of blood. Eugenius, clearly reluctant to hand Eon over to the secular arm, took the only way out of his dilemma that occurred to him. But Eon’s followers’ fate shows that imprisonment, unless the Church could control it itself, was not automatically a way of avoiding the death penalty. The story has recently been told many times, and need not be retold in detail here, of how later popes, with considerable misgivings, were brought around to the view that because, as they saw it, heresy was spreading rapidly, a new form of repression that would have general application must be found.29 The 1184 bull Ad abolendam strengthened the episcopal arm in investigating heresy and ordered secular authorities to assist the bishops, in particular by arresting suspects. In 1199 Innocent III equated heresy with lèse-majesté, thereby providing a legal foundation for the death penalty for heretics, although the decree did not actually stipulate this. At the fourth Lateran Council in 1215 the same Pope endorsed the consignment of such convicted heretics as refused to recant to the secular arm for punishment. In 1231 Gregory IX introduced special inquisitions run by papally-appointed agents, usually Dominican friars, sometimes Franciscans, to hunt down heretics. In 1252 Innocent IV licensed the use of torture to obtain evidence from suspects; by 1256 inquisitors were allowed to absolve each other if they used the instruments of torture themselves, rather than relying on lay agents for the purpose. So those who shrank from shedding blood learned how to use the thumbscrew and the rack. The net effect of these changes was to create a new involvement by the Church in the legal process. After 1191, when heresy was equated with treason, ecclesiastics became the prosecutors as well as the judges in what were essentially criminal trials of an extraordinary kind, in which the usual safeguards of legal process might be ignored in order to preserve the faith of Christians.30 Although the Church never formally endorsed the death penalty, the handing over of obdurate or relapsed heretics to the secular arm inevitably led to that

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conclusion. That these stipulations of canon law would produce difficulties in implementation was obvious. Because the chief aim of inquisitors was to extort confessions from those suspected of heresy, a necessary preliminary to reconciling them (where possible) with the community of the faithful, they took it for granted that arrested suspects against whom there was circumstantial evidence would need to be held, preferably in isolation, while awaiting the proper forms of interrogation, and that those who under interrogation did not at once confess and perform penance would be held until they did.31 The patient interrogation over several months of captured Cathar perfecti demanded lengthy imprisonment; Pierre Autier, the last of the great Cathar missionaries, was kept for a whole year before being burned in April 1310, so that as much as possible could be established about the beliefs he had been propagating and the various people who had assisted him. Lesser men, once confessed, recanted and restored to communion with the church, were not freed from jail until they had implicated others with whom they had allegedly shared their heretical views. In this context, prison brought the inquisitors greater advantage than they perhaps expected. It was a former Cathar, angry that his fellow believers had not contributed to the costs of his food while he was in Carcassonne jail, who betrayed Jacques Autier, Pierre’s son and able helper, to the inquisition in 1305.32 For the purposes of detaining alleged heretics, a minority of bishops did have access to jails in or beside the ancient gatehouses of their walled cities, like the bishop of Noyon in the tower beside the city’s gatehouse,33 or the bishop of Pamiers in the Tour des Allemans. Some others possessed rooms that would serve the purpose in their castles or palaces. But the mendicant friars who from 1231 until 1311 comprised the main body of inquisitors, had never previously had need of such amenities; nor could their houses supply them. Hence a real problem emerged. In some cases, if there was only mild suspicion against a person, the equivalent of a modern probation order might be issued, requiring the suspect to turn up each day and report, though not to be incarcerated.34 But usually this was thought inadequate. The obvious short-term solution was to require secular authorities to imprison suspects for the inquisitors. Charles I of Anjou made detailed arrangements for this in the Regno, stipulating that no charge should be levied on the prisoners of the church while they were in royal jails.35 Where the secular power was as cooperative as this, there was no difficulty. But where local lords themselves fell

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under suspicion, as was the case in parts of Languedoc in the later twelfth and early thirteenth centuries, or where the inquisitors were seriously unpopular, as they were in most of southern France at the end of the thirteenth century, the deficiencies of such an arrangement were clear. Besides, everywhere rulers’ involvement in imprisonment gave them a degree of control over the process that the Church had not intended. For example, in 1291 Philip IV ordered his seneschal of Carcassonne not to arrest suspects at the behest of inquisitors unless the case against them was notorious; and in 1303 he conducted a personal investigation into complaints against the inquisitors. 36 The only alternative available was the construction of inquisitorial prisons solely for the custody of alleged heretics. These began to appear in the south of France in the second half of the thirteenth century. It is not always clear from the records whether these were just wings or floors of existing episcopal or town prisons granted to the inquisitors for their own prisoners or whether they were independent buildings; but in Carcassonne at least a new mur ( jail) was built for this purpose alone. In 1285–6 the consuls of that town upbraided the inquisitor for the appalling conditions within it: Truly this could be called with good cause a hell. For in it you have constructed little cells for the purpose of tormenting and torturing people. Some of the cells are dark and airless, so that those lodged there cannot tell if it is day or night, and they are continuously deprived of air and light. In other cells there are kept miserable wretches laden with shackles, some of iron, some of wood. These cannot move, but defecate and urinate on themselves. Nor can they lie down except on the frigid ground. They have endured torments like these day and night for a long time. In other miserable places in the prison, not only is there no light or air, but food is rarely distributed, and that only bread and water.37

In 1296, the citizens of Carcassonne revolted against such conditions; in 1303 Philip IV feared a more general rising across the whole of Languedoc. Although by then the chief complaint was against those who arrested innocent individuals for financial motives, the illtreatment of such people after arrest added to the local anger. The terrible conditions the consuls complained of were not, however, universally experienced in the mur of Carcassonne. While waiting for and during interrogation, things could be more comfortable, at least

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for those born of well-known families. Bernard, brother of Pierre Clergue, priest of Montaillou and the most notorious of all fornicators and heretics in the inquisition file of Jacques Fournier, Bishop of Pamiers, nevertheless enjoyed a decent lifestyle in that jail in the third decade of the fourteenth century. He had access to the communal room there, he could walk on the city’s ramparts, and he got linen and food sent in by relatives.38 The inequality of treatment accorded to inmates, and particularly the privileges of priests’ families, will have sharpened the anger felt by the citizens of Carcassonne. But once judged guilty, Bernard Clergue died in the dungeon, fettered and wretched, while many other laymen who initially suffered worse conditions were eventually released.39 Once the use of torture was permitted, not only to extort confessions but also to discover the names of accomplices, ecclesiastical jails became as terrifying for at least some of the inmates as secular ones were for those accused of murder. William of Paris, writing in the 1260s, said in his formulary that torture in the officiality of Paris was reserved for notorious criminals accused of serious crimes.40 But that meant that it was not restricted to inquisitions for heresy. Responsible churchmen tried to ensure that due process was followed, that the aim should be get at the truth, not to indulge sadistic instincts.41 However, this demanded considerable patience, which not all inquisitors possessed. At the same time as custodial captivity became miserable, the terms of punitive incarceration imposed tended to lengthen. Over the years imprisonment had emerged in Languedoc as the only suitable means of isolating from society convinced heretics who, even when they had under pressure abjured their heresy, were still regarded as too dangerous to be released into the community. As might be expected, this had happened rather by default than by positive decision; it seemed to be the only resort compatible with the maintenance of the public good, and with the distinction between those convinced heretics who had in the end abjured and those who either refused to do so or had relapsed into heresy after previously recanting (these were handed over to the secular arm). So gradually a lengthy prison sentence had become the toughest form of penance that could be imposed on a former heretic; for some the toughness was increased by perpetual fetters and a diet of nothing but bread and water. For clerics it was routinely preceded by defrocking; for laymen by confiscation of their property, and in some cases also by

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destruction of their houses.42 The length of a heretic’s prison sentence depended on the judgement of the inquisitor. While a few got away with just 1 year, most had a life sentence imposed on them. As nowadays, this only sometimes meant life. Inquisitors could and did free some penitents. But others were condemned to die there, including two figures made famous by Le Roy Ladurie, Pierre Clergue, the highly unpleasant priest of Montaillou, and (it is assumed) Pierre Maury, the opinionated shepherd who talked so freely to Jacques Fournier, then Bishop of Pamiers.43 What happened in Languedoc has been much discussed. The rapid development of inquisitorial techniques and of very harsh punishments for those who did not at once confess are notorious, as is the corruption that very soon crept into the process. But by 1300 this was still very exceptional. Only in northern Italy had there been a parallel development, and there its effects were very much limited by political circumstances. Although the inquisitors regularly visited the Regno in the reign of Charles I, they do not seem to have been particularly active. In northern France they were usually dormant. In Aragon they were remarkably ineffective. Elsewhere they were by 1300 rare and fleeting birds of passage, or never seen, as in England. Nevertheless, the inquisitors’ capacity to override the normal rules of a trial by canon law, and their extensive use of imprisonment, both custodial and punitive, spawned imitation in secular courts. Foucault believed that the great innovation of the early nineteenth century was that prison became an institution for the reform of its inmates.44 In the light of what is now known about medieval ecclesiastical imprisonment, opinions may be divided as to whether the early nineteenth century was as innovative as he thought. As has been shown, the main intention of ecclesiastical punitive imprisonment, monastic as well as inquisitorial, was to bring about repentance and reconciliation, a complete spiritual reformation. In most cases of heresy, abjuration of error, followed by an act of penance, was sufficient to secure release from prison sooner or later. Foucault’s disciples may point out that those who would not abjure faced death and some of those who did abjure after long commitment to heresy were nevertheless regarded as too dangerous to be let loose. For them, spiritual reformation was not enough. Their captors put the safety of the Christian community far above the individual’s act of penitence. Yet that was true also of the authorities of early nineteenth-century western Europe in their dealings with certain

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categories of criminal. The difficult issue is how far attempts to reform a man’s soul can be equated with attempts to reform his social conduct. Since most of those who endured ecclesiastical imprisonment in the middle ages had demonstrated their philosophical errors by their behaviour, the two reformations are not easily distinguishable; so argument on the similarity between medieval ecclesiastical and nineteenth-century secular punishment is likely to go on. From a modern perspective, conditions in inquisitorial jails do not seem to have been conducive to bringing about the reformation of soul to which they were theoretically geared.45 But that is a criticism that has been levelled against virtually all forms of corrective detention over the centuries, including those of the early nineteenth century.

11 IMPRISONMENT AND THE MEDIEVAL IMAGINATION

Prison literature has recently aroused much interest in literary circles. That it has not attracted much attention from medievalists is unsurprisingly since there is very little of it, and even less that seeks to evoke for the reader the actual experience of imprisonment. Yet there are a few pieces that fall into the category, being either literary descriptions of captivity or works written or supposedly written in prisons. It seems worth looking briefly at these, if only because they on the whole confirm the widely-held view that the images produced by poets and others for purely fictional representations were remarkably like those of contemporary medieval authors describing actual situations. In western chronicles or histories of the high middle ages, there was a widespread, if disappointing, absence of desire on the part of authors to engage the sympathies of readers on behalf of captives. Even those who suffered personally usually chose to remain tightlipped. For example, the chronicler of Asti, Guglielmo Ventura, described the course of the initially successful campaign waged by Charles of Anjou’s seneschal of Provence, Philip de Lagonesse, against a combined army from Asti, Genoa, and the lands of the Marquis of Montferrat, which aspired to undermine Angevin influence in Piedmont. The chronicler then went on to say that he himself was among the more than 2000 captives taken by Philip in 1273. Of the experience 159

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he revealed nothing, restricting himself to recounting the various means attempted by the people of Asti to secure the prisoners’ release. The information that he and his fellows were to be kept on bread and water unless they could corporately pay an extremely high monthly rate of 3000 l.t. for food and for the costs of guarding them comes, not from him, but from the registers of Charles of Anjou.1 Guglielmo did not explain how he came to be released, but did let slip that he was back in Asti by the time the inhabitants of Alessandria joined the anti-Angevin alliance. His sympathy with those not so fortunate was evident in the precise detail he then provided on the 180 captives subsequently moved by Philip de Lagonesse to the security of the castle in Aix-en-Provence. He noted that after 5 years and 6 months of imprisonment, during which 50 of their number died, in the end Charles of Salerno permitted their release for a ransom of 8000 golden florins, and the surviving 131 were greeted with much rejoicing on their return to their native town.2 The tone of the narrative is, considering the circumstances, surprisingly unemotional. Perhaps Guglielmo thought that the facts, and particularly the high death rate among those kept at Aix, spoke more eloquently than any personal reminiscence he could give about the conditions to which he had been subjected. The same restraint could be found among poets. A lyric ascribed by its modern editor to Richard Lionheart and entitled ‘La complainte du prisonnier’ is surprisingly uninformative, although it does succeed in conveying the acute sense of frustration experienced by a public figure forcibly excluded from the fray. Richard attacks Philip of France for invading his lands, contrary to the vow he swore; he accuses some of his vassals of disloyalty, others of forgetting him. But the sentiment expressed, that the dead and the imprisoned resemble one another in being rapidly forgotten by their friends, while it may have been widely shared by less exalted captives of the period, is not so strikingly original as to betray any personal experience of captivity on the part of the versifier. The chief theme of the poem is the shame that will fall on all those who will not produce money for Richard’s ransom as soon as possible.3 This is a song for public circulation, an outpouring of anger not of misery. It tells us rather less about the everyday sensations of the captive than does the brief comment of one of those who had accompanied Richard to Outremer: There is certainly nothing more annoying for royal blood than to be subjected to the authority of unworthy people. The freeborn are anxious

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to avoid anything disagreeable or disordered. In any case, experiences are more damaging when they have not been encountered before.4

But even this is a rather wooden attempt to reconstruct the probable sentiments of any captured royal personage. If accurate so far as it goes, it offers little in the way of insight into the humiliation and isolation Richard will have suffered. More empathetic is the trilogy of poems, written in the first person, produced by the thirteenth-century Hebrew poet Todros Abulafia who worked at the court of Alfonso X of Castile. In the first, he describes his bewilderment at being imprisoned thus: ‘Having lost all my possessions, I am at a loss to act’; but he tries to keep his spirits up by remembering that he is physically uninjured although his rings have fallen off (presumably because he has become so emaciated). More importantly, he still preserves his faith, his dignity and his soul, in the midst of all his sufferings. In the third poem, he comforts himself by thinking of his miserable fall as typical of the instability of human affairs. The second poem is the most circumstantial. In it, he prays that the birds who can see into the cell will describe the prisoners’ fate to others, will reveal their hunger and thirst, the horrible insects who crawl around everywhere, and the inhumanity of their jailers and guards.5 In dwelling on the insects, Abulafia offers a highly plausible addition to the traditional picture of misery offered in the more historical sources. These poems may or may not reflect personal experience. Abulafia was in 1289 to be found working for King Sancho IV of Castile, so if what he described had in fact happened to him earlier, the misery did come to an end, though after how long a time we do not know. The use of the first person singular in medieval poetry should not automatically be taken to imply that what follows is autobiographical recital, any more than it would be in a modern novel. But imprisonment was a common enough event in Jewish communities in the thirteenth century to permit authenticity in accounts, whether or not the authors had themselves suffered, and also to arouse an emotional response in the audiences to which those accounts were directed. More broadly, the Hebrew tradition, with its Old Testament stress on the captivity of the children of Israel, and the religious obligation laid on Jews to ransom fellow Jews, easily accommodated to prison poetry.6 In this it was apparently at odds with the Latin tradition, at least among writers of prose. The marked absence of personal recollection, or indeed of sympathetic description of the fate of captives in the

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supposedly factual accounts that have survived from most of western Europe (with the exception of the eleventh-century miracle stories of which enough has already been said) was perhaps a result of the sense of shame captivity inspired in those aristocrats who had endured it and were also of sufficient wealth and education to have the means of self-expression. Despite its relative commonness, imprisonment was usually thought of as a demeaning experience to be thrust into oblivion immediately on release, to be washed out of the system along with the dirt of the jail, lest a man lose status in the eyes of his fellows. Orderic Vitalis (who wrote in the first instance for the monks of his own monastery and only secondly for its lay patrons) was unusual in the first half of the period in offering so many vivid glimpses of life on the other side of the prison door.7 Yet, given the fondness of medieval intellectuals, particularly those of the twelfth century, for following classical or late antique models in literary composition, this relative silence is somewhat surprising. Boethius’ Consolation of Philosophy, with its famous description of its author’s mental tribulations during his period of imprisonment in Ostrogothic Italy, was well known and circulated widely in western Europe from the middle of the eleventh century onwards. It was highly valued for its lesson that the most terrible trials a man might face could enrich his mind and soul. In the circumstances, it is odd that so little echo of Boethius’ highflown moralizing should have resonated among the monks and clerks who found themselves writing about imprisonment.8 Perhaps these authors were too conscious of their lay audience’s prejudices to wish to deter potential patrons by harping on an unwelcome sentiment. Alternatively they may have thought that Boethius’s moralizing needed more explicitly Christian expression to be convincing. Whether or not either of these is the correct explanation for their avoidance of the central message of the Consolation, they certainly knew the text well and were not afraid to make use of two lesser themes from it in the context of imprisonment. These themes had by that time become topoi: stories of authors producing great works in prison and the colourful metaphor of the wheel of fortune. The debate over whether Marco Polo’s travels were actually recounted to Rusticello of Pisa in a Genoese prison, as stated in the preface, has already been mentioned.9 While perfectly possible – the Genoese and Venetians were indeed at war in the last decade of the thirteenth century – the story may have been no more than a literary

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device designed to explain the long flow of uninterrupted narrative that followed, or to create a deliberate contrast between the narrow confinement Polo now endured and the enormous spaces that he had once crossed. Since the Travels were first heard and enjoyed, the question of their veracity has been much debated. Certainty on whether its author was indeed in prison at the crucial point of its gestation is beyond the bound of possibility. But the inclusion of the prison background will have created, at least for some of its more erudite readers, a parallel between the great geographical discoveries the Venetian merchant had made and the large intellectual and moral discoveries previously made by Boethius and recounted in similar circumstances. On the other hand, it would be wrong to assume that all memoranda allegedly produced by prisoners were intended as nods to Boethius. Fleta 10 and The Mirror of Justices11 were texts of a totally different sort. Produced in England in the late thirteenth century, the one in Latin, the other in Anglo-Norman French, they were written by men with considerable knowledge of legal procedure and, in the case of Fleta, of royal and seigneurial household administration. Both purported to have been penned while their authors were in prison; and in each case historians have debated whether this was the truth. 12 Certainly if it was not, some explanation for the fabrications is necessary, since the readership for which the tracts were apparently designed, that of legally-trained laymen, would not normally be disposed to feel much sympathy for condemned criminals. The author of The Mirror of Justices was clearly very disgruntled. He began his distinctly eccentric plea for radical reform thus: ‘I, the prosecutor of false judges and by them falsely imprisoned . . . .’ He went on to develop a scathing attack on the current royal administration of the law, culminating in the enumeration of 159 frequent abuses, the first of which was the king’s immunity from action in the royal courts. His virulence precludes the possibility that he wrote to clear his name with the authorities in order to secure his release, supposing his imprisonment to have been genuine. His claim to have been unjustly persecuted by those he attacked could theoretically be nothing more than a device designed to arouse interest in his readers from the first moment they began to engage with his words, and thus to blacken the reputation of those he was going on to criticize so roundly. On the other hand, such an explanation is at odds with the generally down-to-earth nature of his approach. It is more plausible that he believed his loathing of royal justices to be so widely shared as

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to make his imprisonment a cause for outrage on the part of his reader, not shame to himself. In 1943 Noel Denholm-Young suggested that the author of Fleta, the Latin tract, was Matthew de Scaccario, committed in 1290 to the Fleet in London for 2 years and 2 days for forgery and other crimes; this identification seems plausible.13 It may be that busy professionals such as Matthew enjoyed the leisure to write lengthy commentaries on law only when imprisoned (though the Fleet was hardly renowned for its high standards of comfort, even in the upper chambers); but since much of the treatise was copied from Bracton it was not as large a task as might first appear. Fleta was perhaps composed to advertise its author’s usefulness to future potential employers, a consideration that makes it odd that he should draw attention to his criminal conviction. But perhaps he thought it inexpedient to hide it, since it was already widely known in just that circle where employment might most effectively be sought, those who frequented the royal law courts. The general flavour of the work is too concerned with legal detail to suggest much artifice; nor would the kind of reader Fleta presupposes have been likely to conjure up Boethian parallels spontaneously while reading such an unBoethian work. In other more literary contexts, gobbets of Boethius’s poetry could appropriately be applied to medieval imprisonment. Here is his famous image of Fortune sitting at her wheel, bringing low the great of this earth: So with imperious hand she turns the wheel of change This way and that like the ebb and flow of the tide, And pitiless tramples down those once dread kings, Raising the lowly face of the conquered – Only to mock him in his turn. 14

This image was certainly in the mind of Cosmas of Prague, the early twelfth-century author who wrote the life of Severus, sixth bishop of Prague. The author pictured Severus at the extreme of adversity, the lowest point of the wheel, when he was imprisoned and chained by his local duke. His release, when achieved, brought a steady rise in his prospects, crowned by his election as bishop, which brought him to the wheel’s apex.15 In this instance, a Boethian topos was completely compatible with the conventional view of imprisonment as the worst form of degradation.

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Thus far, the argument has been concerned with literary representations of what purported to be historical fact. But recently the pure fiction of the high medieval period has proved a fruitful ground for scholars to till in their search for personal insights or telling detail about various aspects of contemporary social life and legal custom.16 It seems less than audacious therefore to look very briefly at a few images of imprisonment found in the vernacular poetry of the age, in search of a conventional ‘Platonic form’, the picture that perhaps took shape in the mind of the average lay listener when ‘prison’ was mentioned, either in conversation or in a chronicle. Romances, epics and saints’ lives all have something to contribute to this picture. If it seems superficially unfair to include saints’ lives in the realm of fiction, those lives produced in French verse usually concerned martyrs of the Diocletianic period, about which their authors knew little if anything. The purpose of the works was edification, not historical accuracy. Given what has already been established about the commonest forms of captivity for lords, it is unsurprising that in poems written to entertain the lay aristocracy the captive is normally depicted as detained in a high tower. So Nicolete, the heroine of Aucussin et Nicolete, languishes in her lovelorn state, awaiting release from her eyrie. 17 Her circumstances are considerably less intimidating than those accorded to Bel Accueil in Le Roman de la Rose, where the poet, Guillaume de Lorris, describes with relish the huge size of the castle erected by Jealousy to contain the Rose and Bel Accueil. It is surrounded by an enormous ditch and then by a massive wall; the whole castle is manned by a large garrison, including archers, well supplied to repel any relieving force. In the centre, built on hard rock (so that it cannot be mined), there stands a round tower so well constructed as to make it impregnable to siege engines, at the top of which Bel Accueil is confined. To make matters worse, an old woman, up to all the tricks of would-be escapers, is locked into the tower with him.18 In this state of hopelessness, with the defeat of the beautiful and the outgoing by the mean and embittered, Guillaume de Lorris ended the original version of this famous poem. Jealousy had triumphed; the Rose and Bel Accueil were imprisoned for ever. The original north French listeners to the poem (conventionally dated to c. 1235–40) will have found it easy to envisage the castle by which Jealousy’s victory was achieved; they had only to look at one of the many great fortifications built by Philip Augustus, Louis VIII or Richard Lionheart across much of their countryside, to appreciate their menace.

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Writing several decades earlier than Guillaume de Lorris, Chrétien de Troyes created a similar imprisonment for Lancelot in Le Chevalier de la charrete. Meleagent, determined to prevent the noble knight from returning to King Arthur’s court, has a very high tower of stone built, with only one small window in it, through which food and drink in small quantities can be thrust on occasion. Into this Lancelot is pushed and the doors are walled up.19 There, we are told, the original poem ended. But another jongleur added to the original (with Chrétien’s permission) an ending that totally changed the mood. Lancelot is rescued by a maiden who loves him; she finds an axe with which the captive is able to extricate himself from the tower. Lancelot then rushes to Arthur’s court in time to meet Meleagent’s challenge, beats him in a duel and cuts off his head. The meaning behind the poem as a whole is a matter of much dispute. But the breaking forth from the apparently impregnable prison and the subsequent success of love offers an alternative to the lifelong punishment of imprisonment ordained for Lancelot’s adulterous behaviour that Chrétien is said at first to have favoured. The literary device of putting this ending into another jongleur’s mouth leaves the audience for the poem with the option of accepting it or not. Ambiguity is of the essence of the last part, as indeed of much of the rest, of Le Chevalier de la charrete. While the readers of Guillaume de Lorris and of Chrétien were meant to sympathize with the misery of the captives, the reader of the thirteenth-century Anglo-Norman poem The Walling of New Ross was guided in the opposite direction to rejoice in the absence of escape routes from the town prison, in which the ladies of this new settlement would keep for ever those young men who once lost their hearts to them: And they solace one another declaring that they will build a gate: ‘The Ladies’ gate’ it will be called And there they will establish their prison. And whoever has once entered their prison Will lose his liberty entirely.20

This light-hearted piece offers one glimpse of a very common tradition among poets, that of portraying imprisonment allegorically as the condition suffered by the lover, held in thrall by the fascinations of his lady. But common though this conceit was, it was not particularly

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revealing about the state; and since allegory’s relation to reality is even more complex than that of fiction, no more will be said here of this kind of poetic metaphor. The three French poems cited thus far offer a picture of captivity already very familiar to us: the castle towers or town jails by the gate that have been described in other parts of this book. But all three poems are notable for highlighting the very limited chance a prisoner had of regaining his liberty by any initiative of his own. In other sources, even other poems, prisons were frequently portrayed as porous; Nicolete, for example, escapes with relative ease from hers, only sustaining a few scratches from the brambles when she jumps from her window. As we have already seen, both escapes and negotiated releases were in fact quite common. 21 But Guillaume de Lorris and Chrétien de Troyes would have none of this; their captives totally lost their self-determination. Escape was nigh on impossible. It was left to other poets (real or alleged) to free their heroes from the high walls that surrounded them and launch them on new adventures. For writers of romance captivity was characterized above all by constraints which rendered the captive impotent but did not seriously undermine his dignity; a hero should not lose his courtly characteristics. Epic poets, on the other hand, were more willing to wallow in the miseries inflicted on those whose exploits they sang; revelling as they habitually did in bloody corpses on the battlefield, they could hardly flinch from a little gruesomeness in their descriptions of prison, particularly where the jail was that of a Saracen lord. In Le Moniage Guillaume, when Guillaume is kidnapped from his hermitage and imprisoned in a tower in Palermo, he is surrounded by snakes, tarantulas, toads and spiders. He is allowed no meat, fish or wine, but only small quantities of bread and water. He cannot shave or cut his hair. His clothes disintegrate. Worse, seawater sometimes floods the prison, making his wounds sting and occasionally rising as far as his chin. His jailers are consistently unpleasant to him.22 That he survives this treatment for 7 years must be a source of great wonder to the reader. Western authors apparently regarded Saracens as prepared to sink to any depths in their treatment of Christian captives. Guillaume was innocent, but Ganelon was a traitor. In the Oxford Chanson de Roland, as soon as Charlemagne becomes aware that Roland has been betrayed, his step-father Ganelon, the guilty party, is handed over for safe-keeping to the army cooks, who have the duty of guarding him until there is time to organize his trial. (As non-combatants, cooks

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will have been convenient, or perhaps the only available, guards for prisoners taken while on campaign.) The cooks strike Ganelon with their fists, with rods and with sticks; they pluck hairs from his beard and his moustache; and they put an iron collar around his neck.23 When the army returns to Aix, he is chained to a stake in the citadel, his hands bound with deerhide thongs.24 Given Ganelon’s social rank, it is a sign of the seriousness of the charge that the cooks dare to behave so. But as in literature, so in life: those accused of serious crimes were treated as guilty by their jailers until proved innocent. Traitors’ terrible deaths may often have come as a relief to them. Authors of saints’ lives could describe cruelty and misery while yet reassuring their readers that such suffering would be rewarded. Wace, in his La vie de sainte Marguerite, describes his heroine’s imprisonment after her refusal to marry the son of the Roman governor. There her nurse who has always sympathized with her brings her bread and wine, passing them through a small window. At the same time, she listens to Marguerite’s prayers, remembers them, and later records them. Thus far, the young maiden’s wretchedness is bearable. But then, from the shadows of Marguerite’s cell there come forth creatures far worse than the insects and snakes that bother others: first a dragon who swallows her up but is then cleft in two by the cross she carries, its death permitting her escape; and then a demon who torments her for the rest of her brief life.25 These allegorical creatures are fitting aggravations to martyrdom. They symbolize the darkness and the terrors of imprisonment for those who know their end is near. In some genres, therefore, medieval poets supplied the sympathy with prisoners deficient in the writings of many medieval chroniclers and most lawyers. By their willingness to speak from the captive’s point of view, they struck a different note from the pitiless or at best matter-of-fact tones employed by others to provide details about the inmates of jails. Though the travails of Guillaume and the allegorical beasts of sainte Marguerite stretch the imagination, much of the remaining detail supplied in these and other poems is credible and in some cases fits in with documentary evidence. Well-garrisoned castles, high towers, small windows to which relatives might bring bread and wine, neck collars, darkness and beatings were all features of the worst forms of imprisonment as recorded elsewhere. The literary mentions of these may therefore arguably be used to add colour and individuality to the more sober accounts in charters or law codes. On the other hand, and unsurprisingly, poets had little to say about the

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relatively favourable conditions enjoyed by men such as the debtors of Cambrai or the knights of Lille, or indeed of the captivity of great men like Robert Courthose. There was little to engage the imagination in such carefully organized forms of deprivation as these. It was, however, the poetic image of the dungeon that achieved almost universal currency among medieval men and women when transmuted by preachers into the image of hell, the place of eternal confinement for the wicked. Jérome Baschet, in his Les justices de l’au delà: les representations de l’enfer en France et en Italie (XII–XV siècle) (Rome, 1993), has shown how the penal realities of the twelfth and thirteenth centuries gave form to contemporary popular conceptions of damnation, as evidenced both in art and literature. 26 Dante, though not the first poet to venture into this territory, was by far the best known. His vision of hell as a deep pit, dark and smelly, its inmates suffering extremes of either heat or cold, with every additional form of torture inflicted upon them, is probably the best known image that the medieval world has left to its successors. The worst fate that could befall an imprisoned man here on earth was just a foretaste of eternal punishment.

12 CONCLUSION

Falling between what has conventionally been seen as the period of the decline of the Carolingian empire, when Europe suffered from attacks from Vikings, Saracens and Hungarians, and the later fourteenth century with its problems of epidemics, economic adjustments, rebellion and large-scale warfare, the years 1000–1300 have correctly been painted as a time of expansion, self-confidence and optimism in western Europe. They were marked by economic growth, the spread of towns, and increasing communications across the continent. All three of these facilitated the revival of classical learning and stimulated new intellectual ventures. Among the many facets of the broad cultural revival known as the twelfth-century renaissance were the developments of more rational processes in law courts, and of a science of law in the schools. These, along with the increasing literacy of a minority of their subjects, provided rulers with the procedures and the personnel needed to form the embryonic bureaucracies on which their rule came to depend. Hence the rise of the state, an institution characterized by legislative, executive and judicial functions and formally justified by the benefit it bestows upon its subjects as a body. This book has attempted to trace the ways in which the rise of state power transformed captivity and imprisonment during these crucial three centuries. One of its conclusions is perhaps unsurprising, that by 1300 more remained of the old practices and ways of thinking than is usually conceded by legal historians; and that this was true not only in much of Germany, where state institutions were on a small 170

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scale, but also in Italy, that home of the study of Roman law, and even in the monarchies of England, France, Castile, Aragon and Scotland. Instances of private imprisonment could still be found in most places, especially for debtors. Hostages were still held in prisons – if the practice was declining it was far from dead. Many captors continued to regard imprisonment principally as a means of coercion, with the result that captives were still more likely to be the vulnerable than the evil. The theoretical distinction which was meant to obtain between those prisoners of war regarded as traitors, murderers or thieves and those seen as opponents unfortunate in defeat, was frequently not observed in practice, because the poor treatment of captives of either type increased the pressure on their friends and allies to make concessions to those who held them. And conditions within jails were still determined in many cases by the rank or income of the prisoner. On the other hand, the rulers’ new preoccupation with peacekeeping and with the punishment of those who had breached the criminal law had wrought major changes, both in the character of those liable to suffer from imprisonment, and in the purposes and places of such detention. By 1300, a substantial number of those incarcerated were accused of crime. It is probable that more crimes were avenged by the ruler’s agents than had in the past been avenged by the injured parties, because those agents were protected against the threat of retaliation and were less restrained from prosecution by existing social ties. In any case, the number of crimes committed almost certainly rose as communities became larger and less intimate. On the other hand, catching the guilty parties was now more difficult, as was preventing their escape once caught. The minds of the prudent therefore turned to thoughts of chains and keys. Whereas, in the earlier part of the period, the interval between the arrest of a criminal, his conviction and his punishment was usually so brief as to obviate the necessity for special arrangements, by 1300 custodial imprisonment before trial had become common across Europe. While the reasons for this varied, the result was the same, that imprisonment was everywhere on the way towards being conceived of as a normal part of the criminal process. Local authorities therefore had to supply jails. If purpose-built self-standing prisons were still rare by 1300, rooms had long been set aside in castles and urban public buildings for the purpose of keeping captives, and the number of prisons was increasing rapidly. Once in existence, these

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were soon discovered to be useful for purposes other than custody, including punishment of those convicted and the detention of debtors. To a certain extent, then, the history of imprisonment does provide a concrete manifestation of the rise of abstract state power. From early claims that important captives should be handed over to princes to the later that only those authorized by princes or podestà should be permitted to keep captives at all, and then normally only after a judgement in a royal, princely or communal court, central control steadily manifested itself. The clearer the concept of sovereignty was in any territory, the greater was the need for prisons. The link between the two, stated cogently in much of Justinian’s legislation, was especially persuasive in the Mediterranean areas where the influence of the Bologna law schools spread early and deeply. Yet in England, where Roman law had little practical (though quite a bit of theoretical) impact, a royal prison of some sort was erected in every county that did not already have one during the second half of the twelfth century, well before their spread in Aragon or Castile. Whatever the thinking behind their construction, as a rough and ready guide to the development of state power a count of prisons would probably be useful, though not easy to achieve in many parts of Europe, simply because so few buildings served that purpose alone, and therefore they cannot often be identified from physical or literary remains. On a different plain, the conditions obtaining within prisons may perhaps be taken as an index of popular political thought. For example, the cruel treatment meted out as a matter of course to those accused of treason across Europe seems to demonstrate that ordinary jailers and guards shared their superiors’ views on the heinousness of this crime. Since only the inhuman would betray a sovereign, all charity towards traitors could be forgotten, no matter what their rank. By 1300, this attitude had been extended also to such murderers as failed to obtain pardons from the authorities. To a large extent, the jailers’ reactions were the product of manipulation by their superiors, who showed favour to and approbation of such conduct. The lesson was reinforced by the new rituals surrounding executions, which were the means of convincing the bystanders of the justice and majesty of the state. To this rather simple correlation between sovereign power and imprisonment, imprisonment by the church courts provides a complicating factor. In the first place, clerics could usually infringe

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royal monopolies where they existed by insisting that secular officials guard the clergy’s prisoners in their jails; by 1184 secular officials were obliged to assist in the arrest of heretics; and by 1215 they had to put to death heretics who refused to recant. They were no longer exclusively the agents of their lord. Secondly, secular sovereignty was limited by its incapacity to interfere in the Church’s jurisdiction over its own clergy and its consequent exclusive right to imprison them – though Philip IV of France succeeded in reducing this to the very minimum. These might be considered small and relatively unimportant exceptions to the general rule of rising executive power, were it not that they provided the occasions for some tense and famous conflicts between church and state. But it is rather difficult to argue for the insignificance of ecclesiastical jurisdiction when discussing a field, imprisonment, in which the secular courts regularly followed examples set by their clerical counterparts, both in the custody and torture of the accused before trial, especially where the inquisitorial procedure was used, and in the relatively late emergence of incarceration as a punishment for minor offences or an additional humiliation for those judged guilty of more serious crimes. In this sphere, some of the most conspicuous manifestations of secular sovereignty were mere imitations of the practices of that spiritual authority, the Church, which refused to recognize the rulers’ unconditional claim to superiority. My argument has been that, as confidence in the efficacy of human justice grew, so the need for imprisonment developed. Given the body of evidence for high mortality, callousness and venality in medieval prisons, it may be considered an unacceptable price to have paid for this confidence. Certainly there is no sign that those responsible for the growing numbers of prisons applied to the conduct of affairs within them one tenth, either of the intellectual analysis, the linking of cause and effect, that they happily devoted to other practical aspects of the law, or of the fervent search for justice they could display when their own interests were involved. As S.F.C. Milsom said in 1969, ‘The history of crime, if “history” is an appropriate word for continuation, is a history of institutional expedients all sensible in their day, all in the long run tending to make the subject nobody’s business.’1 The correlation between those accused of serious crimes and those in jail remained poor, because wealth, rank or patronage protected some. So long as debtors, hostages and prisoners of war might face the same conditions as criminals, there

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was little to be said in favour of the logic that supposedly supported imprisonment. And any rational defence of the variety of conditions obtaining within jails is impossible to mount. Yet the modern observer is not in a position to be able to calculate whether fear of incarceration acted as an effective deterrent to crime. Nor can he weigh up the gains and losses involved in the slow abandonment of summary justice. At least some of those unjustly accused of crime must have been grateful for the period they spent in jail, which permitted evidence to be accumulated that the prima facie case against them was misleading. Where punitive imprisonment took the place of enslavement or mutilation, it was presumably an improvement. Dark though it may be, the whole picture is not one of unrelieved blackness.

NOTES CHAPTER 1

INTRODUCTION

1. In Dictionary of the Middle Ages, ed. J. Strayer (NewYork, 1982–89), vol. 10, 130. 2. Herman of Tournai: the Restoration of the Monastery of Saint Martin of Tournai, trans. L.H. Nelson (Washington, DC, 1996), p. 96. 3. J. Gillingham, Richard the Lionheart (London, 1978), pp. 217–40. 4. J. Gillingham, Richard I (New Haven and London, 1999), pp. 237–8. 5. Ibid., pp. 237–8; Helen J. Nicholson, Chronicle of the Third Crusade. A Translation of the Itinerarium Peregrinorum et Gesta Regis Ricardi (Aldershot, 1997), p. 384. 6. The legend that Blondel (de Nesle) went around the castles of Austria singing until he found his master did not appear until the middle of the thirteenth century; see Récit du ménestrel de Reims au XIII siècle, ed. N. de Wailly (Paris, 1876). 7. Roger of Howden, vol. 3, 247–8. 8. Helen J. Nicholson, Chronicle of the Third Crusade, p. 384. 9. Ptolemy of Lucca Annales (Lyons, 1519), 203. 10. The Divine Comedy. Inferno, canto xxxiii, lines 86–90. 11. See below, pp. 86–7. 12. Siete Partidas par. VII, tit. 29. 13. For further discussion, see below, pp. 50–1. 14. RCA xcvii, 35. 15. RCA cxii, 263. 16. Pugh Imprisonment, pp. 57–164 demonstrates the great difficulty this analytically sophisticated historian encountered in trying to label them clearly. 17. Ibid., pp. 122–6. 18. For example P. Bonnassie ‘The survival and extinction of the slave system in the early medieval West’, in Bonnassie, From Slavery to Feudalism in the Medieval West (Cambridge, 1991), 1–59; A. Verhulst, ‘The decline of slavery and the economic expansion of the early middle ages’, Past and Present 133 (1991). 19. Living in the Tenth Century. Mentalities and Social Orders, trans. P.J. Geary (Chicago and London, 1991), p. 424. 20. See F.L. Cheyette, ‘Suum Cuique Tribuere’, French Historical Studies, 6 (1970). 21. Suger, pp. 65–8. 22. K. Leyser, ‘Frederick Barbarossa: Court and County’, in Communications and Power in Medieval Europe. The Gregorian Revolution and Beyond, ed. T. Reuter (London, 1994), p. 148. 23. Giselberti Chronicon Hanoniense, ed. W. Arndt MGH SS, t. 21, p. 518. 24. Orderic Vitalis, p. 352. 25. J. Gillingham, ‘1066 and the introduction of chivalry’, in Law and Government in Medieval England and Normandy, ed. G. Garnett and J. Hudson (Cambridge, 1994), pp. 31–55; Strickland, Warfare and Chivalry, pp. 1–54. 26. Strickland, Warfare and Chivalry, p. 53 27. Annales Gandenses, ed. and trans. H. Johnstone (London, 1951), p. 31.

175

176

Notes

28. W.H. Jackson, Chivalry in Twelfth-Century Germany. The works of Hartmann von Ave (Cambridge, 1994), p. 190. 29. cf. J. Gillingham, ‘Societies in which secular nobles regarded the blood feud as acceptable were . . . unchivalrous’, in ‘1066 and the introduction of chivalry’, p. 33. 30. F.H. Russell, The Just War in the Middle Ages (Cambridge, 1975), pp. 40–126. 31. J. Dunbabin, Charles I of Anjou. Power, Kingship and State-Making in Thirteenth-Century Europe (Harlow, 1996), pp. 55–9. 32. M. Keen, The Laws of War in the Later Middle Ages (London and Toronto, 1965), p. 24. 33. Cambridge (1968). 34. Pugh, Imprisonment, p. 4, on Henry II’s order to his sheriffs to provide a jail in every county where one did not already exist. 35. T.N. Bisson, The Medieval Crown of Aragon. A Short History (Oxford, 1986), pp. 34, 50, 75. 36. D. Matthews, The Norman Kingdom of Sicily (Cambridge, 1992), pp. 174, 246–8, 318, 329. 37. M. de Boüard, ‘De l’aula au donjon: les fouilles de la motte de La Chapelle à Doué-la-Fontaine (X–XIe siècle)’, Archaéologie Médiévale, 3–4 (1973–4). See the discussion in Chapter 3, below on the almost complete absence of buildings or rooms specifically dedicated to the detention of prisoners. 38. H. Platelle, ‘La violence et ses remèdes’, p. 152–4. 39. Trans. F.J. Tschan (New York, 1935), p. 135. 40. In two such stories from La ‘Vita Dominici Siliensis’ de Grimaldo. Estudio, Ediciòn Crìtica y Traducciòn by V. Valcarel (Logrono, 1982), pp. 166–8 and 356–60, the reference to St Peter is explicitly made. 41. For example The Book of Ste Foy, pp. 99, 104, 191. 42. Compare, for example, the original miracles of St Leonard (AASS, November, vol. 3, 155–59) with the twelfth-century additions (pp. 159–73). 43. For a recent treatment of this in relation to some English law codes see P. Wormald, The Making of English Law: King Alfred to the Twelfth Century (Oxford, 1999), pp. 416–76. 44. Usatges, Introduction by D.J. Kagay. 45. On Castilian law see R.A. Macdonald, in The Worlds of Alfonso the Learned and James the Conqueror. Intellect and Force in the Middle Ages, ed. R.I. Burns (Princeton, NJ, 1985). 46. For a brief introduction to the problems of later trial records, see T. Dean and K. Lowe, ‘Writing the history of crime in the Italian Renaissance’, in Crime, Society and the Law in Renaissance Italy, ed. T. Dean and K.J.P. Lowe (Cambridge, 1994), 1–15. 47. L. Frati, La prigionia del Re Enzo a Bologna (Bologna, 1902). 48. I draw here on the title provided by E.M. Peters for his chapter, in The Oxford History of the Prison, ed. N. Morris and D.J. Rothman (Oxford, 1995). 49. For a recent and important contribution which surveys much of the existing literature, see R.J. Evans, Rituals of Retribution. Capital Punishment in Germany 1600–1987 (Oxford, 1996).

CHAPTER 2

THE LATE ROMAN LEGACY IN W ESTERN EUROPE

1. Georges Duby, La société au xie et xiie siècles dans la région mâconnaise (Paris, 1953); his point of view was expressed at its crudest by Guy Bois in La mutation de l’an mil. Lournand, village mâconnais de l’Antiquité au féodalisme (Paris, 1976).

Notes

177

2. J. Dhondt, Études sur la naissance des principautés territoriales en France (IXe–X siècles) (Bruges, 1948). 3. For a summary of recent scholarship on the impact of late Roman vulgar law see P. Wormald, The Making of English Law: King Alfred to the Twelfth Century, 1 (Oxford, 1999), 36–9; For the survival of Visigothic law in the south, R. Aubenas, Cours d’histoire du droit privé (Aix-en-Provence, 1956–62). For Lombard Law in parts of southern Italy, see G.A. Loud, The Age of Robert Guiscard (Harlow, 2000), pp. 33, 71, 140, 286. 4. O.F. Robinson, Ancient Rome: City Planning and Administration (London and New York, 1992), p. 113. 5. J.H.W.G. Liebeschuetz, Decline and Fall of the Roman City (Oxford, 2001), p. 151. 6. P. Garnsey, Social Status and Legal Privilege in the Roman Empire (Oxford, 1970), pp. 131–6. 7. A.H.M. Jones, The Criminal Courts of the Roman Republic and Principate, ed. J.A. Crook (Oxford, 1972), pp. 117–8; A. Levato, Il carcere nel dritto penale Romano dai Severi a Giustiniano (Bari, 1994), p. 197. 8. A. Lovato, Il carcere nel dritto penale, p. 171. 9. P. Garnsey, Social Status and Legal Privilege, p. 147. 10. Quoted by O.F. Robinson, Ancient Rome: City Planning, p. 194. 11. Codex Theodosianus 9.3.1., quoted in O.F. Robinson, Ancient Rome: City Planning, p. 113. 12. The Acts of the Christian Martyrs, trans. H. Musurillo (Oxford, 1972), pp. 109, 217, 219, 221, 225. 13. P.D. King, Law and Society in the Visigothic Kingdom (Cambridge, 1972), pp. 90 note 4, 95, 116 and 98. 14. The Lombard Laws, trans. K. Drew (Philadelphia, 1973), 80, XI, 178. 15. E. Cortese, Il diritto nella storia medievale (Rome, 1995), t. 1, pp. 340–41. 16. C.M. Radding, The Origins of Medieval Jurisprudence. Pavia and Bologna 850–1150 (New Haven, 1988), pp. 78–84. For endorsement of this interpretation, see Patrick Wormald, The Making of English Law, pp. 468–9. 17. Cortese, Il diritto nella storia medievale, pp. 378–9, and note 79. 18. H.R. Lloyn and J. Percival, The Reign of Charlemagne (London, 1975), p. 113. 19. Lloyn and Percival, p. 78. 20. J. Campbell, ‘Observations on English Government from the tenth to the twelfth century’, TRHS, 5th s., 25 (1975), 39–54. 21. For southern France see J. Martindale, ‘ “His Special Friend”? The settlement of disputes and political power in the kingdom of the French (tenth to mid-twelfth century)’, TRHS 5 (1995), 21–57. For Saxony K. Leyser, Rule and Conflict in an Early Medieval Society (London, 1979), pp. 98–107. 22. Though the distinction could be observed also where Roman law had at best only an indirect effect; see S.F.C. Milsom, Historical Foundations of the English Common Law (London, 1969), p. 358. 23. A. Lovato, Il carcere nel dritto penale, p. 247. 24. Siete Partidas, part 7, tit. 29, p. 696. 25. RCA, xxviii, 265. 26. E.M. Peters, Torture (New York and Oxford, 1985), p. 49. 27. Die Chronik des Saba Malaspina MGH SS, t. 35, ed. W. Koller and A. Nitschke (Hannover 1999), pp. 147, 187.

178 28. 29. 30. 31. 32. 33. 34.

35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58.

Notes

O.F. Robinson, The Criminal Law of Ancient Rome (London, 1995), p. 103. Liebeschuetz, The Decline and Fall of the Roman City, p. 151. O.F. Robinson, The Criminal Law of Ancient Rome, p. 15. On the distinction between slave and serf, see R. Fossier, ‘Rural economy and country life’, in The New Cambridge Medieval History, ed. T. Reuter, vol. III, 37–9. P. Bonnassie, From Slavery to Feudalism in South-Western Europe (Cambridge, 1991), pp. 1–63. For the disappearance of slavery in England after the Norman conquest, see David A.E. Pelteret, Slavery in Early Medieval England (Woodbridge, 1995), pp. 252–4. Paul Strait, Cologne in the Twelfth Century (Gainesville, Fl, 1974), p. 24. The other forms of exempted violence were criminal punishment and the disciplining of scholars by masters. G. Loud, Church and Society in the Norman Principality of Capua 1058–1197 (Oxford, 1985), p. 41. It is taken for granted by most French writers, in particular Bonnassie, that it did. Rule of St Benedict, Chapter 25; ed. R. Hanslik, Corpus Scriptorum Ecclesiasticorum Latinorum, 75 (1960), pp. 80–81. Rule of St Fructuosus, PL 87, 1128. Jocelyn of Brakelond, p. 73. Chronicon, ed. R. Holtzmann, MGH SSRG n.s. 9 (Munich, 1996), 399. W.L. Warren, The Governance of Norman and Angevin England 1086–1271 (London, 1987), pp. 39–42. For mentions of it in law codes of the late ninth and early tenth centuries see Pugh, Imprisonment, p. 2. Chartes et documents poitevins du 13e siècle en langue vulgaire, ed. M.S. La Du (Poitiers, 1960), t. 2, pp. 247–8, no. 155. Radulphi Glaber Historiarum libri quinque, ed. J. France (Oxford, 1989), pp. 18–23. P.D. King, Law and Society in the Visigothic kingdom (Cambridge, 1971), p. 162. J. Shepard, in The New Cambridge Medieval History, ed. T. Reuter, vol. III (Cambridge, 1999), p. 615. Richer, p. 138. Richer, pp. 173, 219, 313. Richer, p. 223. Richer, p. 231. B.H. Hill, Medieval Monarchy in Action. The German Empire from Henry I to Henry IV (London, 1972), doc. 6, p. 125. Richer p. 177. On English thegn’s dwellings see P. Stafford, The East Midlands in the Early Middle Ages (Leicester, 1985), pp. 165–7. T. Reuter, Germany in the Early Middle Ages (London and New York, 1991), p. 206. O. Guillotjeannin, Episcopus et Comes. Affirmation et déclin de la seigneurie episcopale au nord du royaume de France (Geneva and Paris, 1987), p. 175, note 13. Dudo of St Quentin. History of the Normans, trans. E. Christiansen (Woodbridge, 1998), pp. 100–111. Chronica Boemorum, ed. D.R. Köpke, MGH SS, t. IX, p. 57. Imperial Lives and Letters of the Eleventh Century, trans. T.E. Mommsen and K.F. Morrison (New York, 1962), p. 80.

Notes

CHAPTER 3

179

THE MEANS OF DETENTION IN THE HIGH MIDDLE AGES

1. Miracula antiqua, AASS, November III, p. 156. 2. T.N. Bisson, Tormented Voices. Power, Crisis and Humanity in Rural Catalonia 1140–1200 (Cambridge, Mass, 1998), p. 84. 3. J.F. Powers, A Society Organized for War. The Iberian Municipal Militias in the Central Middle Ages 1000–1284 (Berkeley, Los Angeles, London, 1988), p. 196. 4. The Book of Ste Foy, p. 148. 5. Platelle, ‘La violence et ses remèdes’, 52–3. 6. Herman of Tournai, The Restoration of the Monastery of St Martin’s at Tournai, trans. L.H. Nelson (Washington, DC, 1996), p. 96. 7. M. de Boüard, Le Château de Caen (Caen, 1979), 13. 8. RCA, lv, 1. 9. For example Vita Gaufredi, p. 194. 10. For a recent summary of a much debated point, see C.B. Bouchard, Strong of Body, Brave and Noble. Chivalry and Society in Medieval France (Ithaca, 1998), 23–7. 11. For a recent discussion, A. Murray, Suicide in the Middle Ages. Vol. I: The Violent Against Themselves (Oxford, 1998), pp. 82–4. 12. Paris (1953). 13. The debate is largely contained within the volumes of Past and Present: T.N. Bisson in 142 (1994), 6–42; D. Barthélemy in 152 (1966), 196–205; S.D. White ibid, 205–23; T. Reuter in 155 (1997), 177–95; C. Wickham ibid, 196–208; and T.N. Bisson’s final response ibid, 208–25. For a recent comment, see Jean Dunbabin, France in the Making 843–1180, 2nd edn (Oxford, 2000), xv–xxiii. 14. E. Magnou-Nortier, ‘Pouvoirs, finances et politiques des premiers Capétiens’ in Pouvoirs et libertés au temps des premiers capétiens, ed. Magnou-Nortier (Maulivrier, 1992), 125–68; T.N. Bisson, ‘The “Feudal Revolution”’ , Past and Present, 142 (1994), 6–42. 15. See G. Fournier, Le Château dans la France médiévale: essai de sociologie monumentale (Paris, 1978). 16. Although the phenomenon of incastellimento was found earlier in Italy, Italian castelli were fortified villages rather than castles. 17. M. de Boüard, Le Château de Caen, p. 104. The same pattern can be found in most early thirteenth-century Irish castles; see D. Sweetman, The Medieval Castles of Ireland (Woodbridge, 1999), p. 68. 18. For example, earliest set of Miracles of St Leonard, AASS, November III, p. 157. 19. Oxford English Dictionary, ed. J.A. Murray (Oxford, 1901), vol. 5, part 22, p. 546. 20. The Book of Ste Foy, p. 100. 21. Book of Ste Foy, p. 150. 22. Book of Ste Foy, p. 149. 23. Book of Ste Foy, p. 185. 24. AASS, November iii, 6th day, p. 157. 25. For example AASS, November III, p. 169; Book of Ste Foy, p. 102. 26. D. Sweetman, The Medieval Castles of Ireland, p. 55, re Nenagh and Ferns. 27. For the variety of places in use in English castles, see N.J.G. Pounds, The Medieval Castle in England and Wales. A Social and Political History (Cambridge, 1990), p. 100. 28. Book of Ste Foy, p. 105.

180 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44.

45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68.

Notes

Suger, p. 66. Registres, no. 25, p. 70. Vita Gaufredi, pp. 194–6. Robert of Torigny, p. 106. J. Favier Philippe le Bel (Paris, 1978), p. 528. Olim, t. 1, p. 210. Book of Ste Foy, pp. 190–91. Memoriale Potestatum Regiensium, in RIS VIII, ed. Muratori, c. 1142. G.W.S. Barrow, Robert Bruce, 2nd edn. (Edinburgh, 1976), pp. 230 and 233 n. L. Frati, La prigionia del Re Enzo a Bologna (Bologna, 1902), 137. AASS, November III, p. 169. The Book of Ste Foy, p. 186. RCA, x1viii, 129 and 133. Vita Gaufredi, p. 222. Hugh of Poitiers. The Vézelay Chronicle, ed. J. Scott and J.O. Ward (Binghampton, NY, 1992), pp. 214, 217, 218. D. Waley, The Italian City Republics (London, 1968), pp. 172–82. For the suggestion that knights and nobles in Italy had once enjoyed the right to prisons, see Jones, Italian City State, p. 420. Chronica Majora, ed. H.R. Luard (London, 1881), V, 209. Pugh, Imprisonment, p. 4. Pugh, Imprisonment, p. 347. M. de Boüard, Le Château de Caen, p. 43. J.W. Baldwin, The Government of Philip Augustus (Berkeley and Los Angeles, 1986), p. 299. Guillaume le Breton, Philippide, in Oeuvres de Rigord et de Guillaume le Breton, ed. H.-F. Delaborde, t. 2 (Paris, 1885), Sections 163 and 200. F.L. Cheyette, in Dictionary of the Middle Ages, ed. J. Strayer, vol. 3, 278–9. M. Bassett, ‘Newgate prison in the middle ages’, Speculum XVIII (1943), 234–5. Chartes de Louis VI, t. 1, no. 207. J. Baumel, Histoire d’une seigneurie du midi de la France: Naissance de Montpellier (Montpellier, 1969), p. 253. Ibid., p. 278. R. Sternfeld, Karl von Anjou als Graf von Provence (1245–65) (Berlin, 1888), p. 291, Clause 15. See e.g. E. Ennen, The Medieval Town (Amsterdam, 1978), pp. 95–126. As in Bologna; see J. Larner, The Lords of the Romagna: Romangol Society and the Origins of the Signoria (London, 1965), p. 48. As Ghent apparently did; Olim, t. 2, 1274–1318, p. 23. Bowsky, Siena under the Nine, p. 117. G.W.S. Barrow, Kingship and Unity. Scotland 1000–1306 (London, 1981), p. 89. Le droit coutumier de Cambrai, pp. 219–21. Beaumanoir, Chapter 1, 48. Jones, Italian City State, p. 382. Le droit coutumier de Cambrai, p. 220. F.L. Cheyette, Dictionary of the Middle Ages, ed. J. Strayer, vol. 3, 278–9. W. Bowsky, Siena under the Nine, p. 118. Jones, Italian City State, p. 378, note 109.

Notes

181

69. See e.g. R.J. Evans, Rituals of Retribution. Capital Punishment in Germany 1600–1987 (Oxford, 1996). 70. L. Tanon, Histoire des justices des anciennes églises et communautés de Paris (Paris, 1883), p. 138. 71. Tanon, Histoire des justices, p. 171. 72. A. Porter-Bitker, ‘L’Emprisonnement dans le droit laïque du Moyen Age’, Revue historique de droit français et étranger, 46 (1968), 215. 73. F.C. Hodgson, Venice in the Thirteenth and Fourteenth Centuries (London, 1910), p. 89. 74. Olim, t. 2, p. 307. 75. La summa de legibus Normannie in curia laicali, p. 188.

CHAPTER 4

CASTELLANS, JAILERS AND GUARDS

1. Correspondance administrative, t. II, p. 229. 2. Etablissements, pp. 26, 29, 30. 3. A.G. Remensnyder, Remembering Kings Past. Monastic Foundation Legends in Medieval Southern France (Ithaca and London, 1995), pp. 127–8. 4. See the arguments over the right to possess gallows in Olim, t. 1, pp. 595 and 750. 5. Olim, t. 1, p. 221. 6. D. Matthew, The Norman Kingdom of Sicily (Cambridge, 1992), p. 318. 7. T.N. Bisson, The Medieval Crown of Aragon: a Short History (Oxford, 1986), pp. 48–50. 8. Alfonso X’s Siete Partidas, Chapter 7, tit. 29, p. 601, explicitly demands royal authorization for jail building; for the royal monopoly, E.N. Van Kleffens, Hispanic Law until the End of the Middle Ages (Edinburgh, 1968), pp. 186–7. A.A.M. Duncan, Scotland. The Making of the Kingdom (Edinburgh, 1975), pp. 185–6, 201–3, 546–7. 9. See also the attempt to introduce such a system in Germany, as recorded in the Sachsenspiegel, p. 131. 10. F. Bernard, Les origines féodales en Savoie-Dauphiné (Grenoble, 1969), p. 111. 11. Chartularium Universitatis Parisiensis, ed. H. Denifle and E. Chatelain, t. 1 (Paris, 1889), p. 32. 12. E.M. Peters, ‘Prison before the prison’, in The Oxford History of the Prison, ed. N. Morris and D.J. Rothman (Oxford, 1995), p. 37. 13. For a classic statement of this point of view, see J.-F. Lemarignier, Le Gouvernement royal aux premiers temps capétiens (987–1180) (Paris, 1965). 14. A theory first worked out in detail by G. Duby, La société aux XI e et XII e siècles dans la région máconnaise (Paris, 1953), and supported by T.N. Bisson, ‘The feudal revolution’, Past and Present 142 (1994), 6–42. 15. P. Bonnassie, La Catalogne du milieu du X e à la fin du XIe siècle: croissance et mutations d’une société, 2 vols. (Toulouse, 1975, 1976). 16. AASS, November III, p. 156. 17. P. Bonnassie, La Catalogne, vol. 1, 173–7. 18. For a recent and interesting statement of this now widely held view, see C. Wickham, Community and Clientele in Twelfth-century Tuscany (Oxford, 1998), p. 102. 19. See Chapter 3, Footnote 13. 20. H. Wolfram, ‘The shaping of the early medieval principality as a type of non-royal rulership’, Viator 2 (1971), 33–51.

182

Notes

21. See above, Chapter 2, and below in Chapter 5; also M. Bull, Knightly Piety and the Lay Response to the First Crusade (Oxford, 1992), pp. 60–1. 22. Cf. P. Freedman, The Origins of Peasant Servitude in Medieval Catalonia (Cambridge, 1991), p. 111, who calls it ‘an abusive right’. 23. C.L.H. Coulson, ‘Rendability and castellation in medieval France’, Château Gaillard, Etudes de castellologie médiévale vi (Caen, 1973), pp. 59–67. 24. Suger, pp. 39–43. 25. B. Arnold, German Knighthood 1050–1300 (Oxford, 1985), pp. 69–75. 26. See above, pp. 40–2. 27. Aristotle, Politics III, 16; trans. B. Jowett (Oxford, 1905), p. 140. 28. Strickland, Warfare and Chivalry, pp. 188–9. 29. Vita Gaufredi, p. 194. 30. Olim, t.1, pp. 264–5. 31. RCA, xcv, 228. 32. Vita Gaufredi, p. 195. 33. B. Arnold, German Knighthood, p. 128. 34. T.N. Bisson, Tormented Voices. Power, Crisis and Humanity in Rural Catalonia 1140–1200 (Cambridge, Mass. and London, 1998), p. 24. 35. Etablissements, p. 30. 36. C.W. Hollister, ‘The misfortunes of the Mandevilles’, History lviii (1973), 19–20. 37. Etablissements, p. 30. 38. Siete Partidas, par VII, tit. 29, p. 698. 39. Olim, t. 1, pp. 251–2. 40. For example RCA, lxxxviii, 21. 41. L.t. = Livres tours. For the various currencies in use in France and their relation one to another, see N. Mayhew, Coinage in France from the Dark Ages to Napoleon (London, 1988). 42. RCA, lx, 248. 43. The Norman pipe roll of 1198 (Stapleton, II), 301, 472. I am indebted for this reference to Jörgen Peltzer. 44. Enquêtes administratives d’Alfonse de Poitiers, ed. P.F. Fournier and P. Guérin (Paris, 1959), p. 40. 45. Ibid., p. 50. 46. RCA, xiv, 1187. 47. Correspondance administrative 2, p. 207, no. 1518. 48. Olim, t.1, p. 668. 49. RCA, lxxii, 139. 50. Jones, Italian City State, pp. 379–80; Bowsky, Siena under the Nine, p. 117. 51. Jones, Italian City State, p. 392. 52. Le droit coutumier de Cambrai, p. 220. 53. F.L. Cheyette, in Dictionary of the Middle Ages, ed. J. Strayer, vol. 3, 278–9. 54. RCA, cix, Documenti tratti da altre fonti, 5. 55. Siete Partidas, par VII, tit. 29, p. 696. 56. Beaumanoir, Chapter 1, 48. 57. F.H. Hodgson, Venice in the Thirteenth and Fourteenth Centuries (London, 1910), p. 103; RCA, xlviii, 261. 58. J.W. Baldwin, Masters, Princes and Merchants. The Social Views of Peter the Chanter and his Circle, 1 (Princeton, NJ, 1970), pp. 167–8.

Notes

183

59. O. Guillot, Le comte d’Anjou et son entourage au XIe siècle (Paris, 1972), pp. 372–5, 382–3; D. Barthélemy, La société dans le comté de Vendôme de l’an mil au XIVe siècle (Paris, 1993), pp. 301–12. 60. C. Wickham, Community and Clientele in Twelfth-Century Tuscany (Oxford, 1998), p. 189. 61. Actes des comtes de Flandre 1070–1128, ed. F. Vercauteren, no. 127 (Brussels, 1938). 62. RCA, lxxvii, 61. 63. RCA, cxi, 190. 64. Olim, t. 1, p. 210. 65. L. Frati, La prigionia del Re Enzo a Bologna (Bologna, 1902), pp. 119, 123–4. 66. Chartes et documents poitevins du 13e siècle, ed. M.S. La Du (Poitiers, 1960), t. 2, p. 8, no. 243. 67. Pugh, Imprisonment, p. 163. 68. J. Strayer, The Reign of Philip the Fair (Princeton, NJ, 1980), p. 232. 69. RCA, xxi, 92. 70. Siete Partidas, par 7, tit. 29, p. 694; Beaumanoir, Chapter 1, 49. 71. For example La Chronique métrique attribuée à Geffroy de Paris, ed. A. Diverrés (Strasburg, 1956), lines 4065–5098. 72. Frederick II. Liber Augustalis or Constitutions of Melfi, trans. J.M. Powell (Syracuse, NY, 1971), p. 41. 73. Siete Partidas, par VII, tit. 29, p. 698. 74. M. Basset, ‘Newgate prison in the middle ages’, Speculum, 18 (1943), 235.

CHAPTER 5

THE KEEPING OF CAPTIVES IN PRIVATE HOUSES

1. Sachsenspiegel, p. 131. Unfortunately the original manuscript of this collection does not survive. But I have assumed that this part of the Wolfenbüttel manuscript of the mid-fourteenth century goes back to the original, because it refers to regular visits from the king to Saxony, which became very rare after 1235. 2. Orderic Vitalis, p. 453. 3. The Chronicle of Salimbene de Adam, trans. J. Baird, G. Baglivi and J.R. Kane (Brighampton, NY, 1986), p. 181. 4. J. Gillingham, ‘1066 and the introduction of chivalry’, in Law and Government in Medieval England and Normandy, ed. G. Garnett and J. Hudson (Cambridge, 1994), 39–55; Strickland, Warfare and Chivalry, pp. 1–54. 5. For example R-H Bautier, ‘La personnalité de Philippe Auguste’, in ed. Bautier, La France de Philippe Auguste: le temps des mutations (Paris, 1982); K.B. McFarlane, ‘Had Edward I a “Policy” for the earls?’, History 50 (1965), 145–59. 6. C. Wickham, Community and Clientele in Twelfth-century Tuscany (Oxford, 1998), p. 102. 7. London (1979). 8. The Autobiography of Giraldus Cambrensis, ed. and trans. H.E. Butler (London, 1937), pp. 313–17. 9. A Monk’s Confession. The Memoirs of Guibert of Nogent, trans. P.J. Archambault (Philadelphia, 1996), pp. 136–7. 10. H.E.J. Cowdrey, Pope Gregory VII 1073–1085 (Oxford, 1998), p. 327. 11. For a twelfth-century echo, see John of Marmoutier’s ascription of the death of Crescentius to Fulk Nerra, Vita Gaufredi, pp. 144–7. 12. H.-W. Goetz, ‘Protection of the Church, Defense of the Law, and Reform: on the Purposes and Character of the Peace of God, 989–1038’, in The Peace of God.

184

13. 14. 15. 16. 17.

18. 19. 20.

21.

22.

23. 24. 25. 26.

27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41.

Notes

Social Violence and Religious Response in France around the Year 1000, ed. T. Head and R. Landes (Ithaca, NY, 1992), pp. 259–79. Le droit coutumier de Cambrai, p. 55. J. Dunbabin, France in the Making 843–1180 (2nd edn, Oxford, 2000), pp. 321–8. Bruno, De Bello Saxonico, MGH SS, t. 15, ed. W. Wattenbach (Hanover, 1880), 2. D. Abulafia, Frederick II (London, 1988), p. 228. For example Olim, t.1, 1254–73, p. 382 where a Poitevin prior was accused in 1271 of having seized two men, amputated the legs of one and maltreated the other so seriously that he died. Beaumanoir, Chapter 59, 1669. Le droit coutumier de Cambrai, p. 55. On Germany, see Frederick II’s Landpeace of 1235, which permitted a man to take his revenge on his neighbour when legal process had failed him; Robert von Hippel Deutsches Strafrecht, band 1 (Berlin, 1925), 123–4, note 9. On Italy, Jones, Italian City State, p. 523. For example Orderic Vitalis, p. 248 when Gilbert of Tillières ambushed William of Chaumont to obtain a ransom of two hundred marks of silver; or p. 396, when Rotrou de Roucy captured the men of Robert of Bellême in the course of a feud. These are very difficult to date. Although the Usatges were promulgated by Ramon Berenguer IV, probably between 1149 and 1151, the substance of the code began to form from the mid-eleventh century; S.P. Bensch, Barcelona and its Rulers, 1096–1291 (Cambridge, 1995), pp. 78, 80. Usatges, p. 66. See Chapter 2, note 3. See Introduction, note 25. T.N. Bisson, The Crown of Aragon (Oxford, 1986), p. 34 demonstrates that this was clearly so for the period after 1150. Similar meetings may have occurred more informally before that time. Usatges, pp. 81, 83. Liber Instrumentorum Memorialium, p. 74. Liber Instrumentorum Memorialium, p. 134. Liber Instrumentorum Memorialium, p. 275. The Letters and Poems of Fulbert of Chartres, ed. and trans. F. Behrends (Oxford, 1976), pp. 90–2. Jones, Italian City State, p. 523; F.R.H. Du Boulay, Germany in the Later Middle Ages (London, 1983), pp. 71–2. Sachsenspiegel, p. 43. Ed. J.-L. Lemaitre (Paris, 1998), pp. 32–3. Cartulaire de St Père de Chartres, ed. M. Guérard (Paris, 1840), t. 2, p. 415. R. Brentano, Rome before Avignon. A Social History of Thirteenth-century Rome (London, 1974), p. 130. Chronicon mauriniacense, ed. L. Mirot (Paris, 1912), p. 23. C.-V. Langlois, ‘Formulaires de lettres du XIIe, XIIIe et du XIVe siècle’, Notices et extraits des manuscripts de la Bibliothèque Nationale, t. 34, part 2, p. 5. T. Evergates, Feudal Society in the Bailliage of Troyes under the Counts of Champagne, 1152–1284 (Baltimore and London, 1975), pp. 16–30, 37–40, 138. H.G. Richardson, The English Jewry under Angevin Kings (London, 1960), p. 29. Chartes de Louis VI, t. 2, p. 92, no. 277.

Notes

42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52.

53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70.

71.

185

Usatges, p. 83. Sachsenspiegel, p. 119. Olim, t. 1, 446. Beaumanoir, Chapter 52, 1570. Summa de legibus Normannie in curia laicali, p. 143. Sachsenspiegel, p. 82. Olim, t. 1, p. 427. H. Platelle, ‘La violence et ses remèdes’, 103–4 and note 8. Usatges, p. 85. Usatges, p. 83. J. Baumel, Histoire d’une seigneurie du midi de la France. Naissance de Montpellier (985–1213) (Montpellier, 1969), p. 244, art. 32 of the Great Charter of Montpellier, 1204. H. Dillard, Daughters of the Reconquest. Women in Castilian Town Society, 1100–1300 (Cambridge, 1984), p. 84. J. Baumel, Naissance de Montpellier, p. 245, art. 35. Ibid., pp. 244–5, art. 33 of 1204 Charter. Ibid., pp. 245, art. 36. Sachsenspiegel, p. 124. Le droit coutumier de Cambrai, t. 1, pp. 8, 9. Roisin. Franchises, lois et coutumes de la ville de Lille, ed. Brun-Lavainne (Lille and Paris, 1842), 55–6. Jones, The Italian City State, p. 378. Beaumanoir, Chapter 34, 1030; Chapter 24, 696. Olim, t. 1, p. 539. Jones, The Italian City State, p. 523. M. Keen, The Laws of War in the Later Middle Ages (London and Toronto, 1965), p. 161. For a recent assessment of the problems, see A.W. Crosby, The Measurement of Reality. Quantification and Western Society, 1250–1600 (Cambridge, 1997), pp. 70–4. La summa de legibus Normannie in curia laicali, p. 158; see discussion above, Chapter 3. Olim t. 2, p. 379. Correspondance Administrative, t. 2, p. 113, no. 1381. RCA, lxxii, 155; xxvi, 36. R. Brentano, ‘Violence, disorder and order in thirteenth-century Rome’, in Violence and Civil Disorder in Italian Cities, 1200–1500, ed. L. Martines (Berkeley and Los Angeles, 1972), 320. Richer, t. 2, p. 113.

CHAPTER 6

COERCIVE CAPTIVITY

1. Tanon, ‘Le formulaire de Guillaume de Paris,’ p. 205. 2. I.S. Robinson, The Papacy 1073–1198. Continuity and Innovation (Cambridge, 1990), pp. 424–9. 3. R. Fawtier, ‘L’attentat d’Anagni,’ Mélanges d’archéologie et d’histoire lx (1948), 153–79. 4. R. Brentano, Rome before Avignon (London, 1974), p. 108. 5. C.-J. Hefele, Histoire des Conciles d’après les documents originaux, trans. into French by H. Leclerq, t. VI, part 1 (Paris, 1914), canon 2, p. 182.

186

Notes

6. Geoffrey of Malaterra, De rebus gestis Rogerii Calabriae et Siciliae comitis et Robertis Guiscardi ducis fratris eius, ed. E. Pontieri, RIS 5(1) (Bologna, 1927–80), 15. 7. D. Matthew, The Norman Kingdom of Sicily (Cambridge, 1992), p. 52. 8. Radulphi Glaber Historiarium libre quinque, ed. J. France (Oxford, 1989), p. 245. 9. J. Dunbabin, ‘Geoffrey of Chaumont, Thibaud of Blois and William the Conqueror’, Anglo-Norman Studies, 16 (1994), 104–5. 10. A.A.M. Duncan, Scotland. The Making of the Kingdom (Edinburgh, 1975), pp. 230–1. 11. D. Abulafia, Frederick II (London, 1988), pp. 227–9. 12. H. Malo, Un grand feudataire: Renaud de Dammartin et la coalition de Bouvines (Paris, 1898), pp. 61–2. 13. J.W. Baldwin, The Government of Philip Augustus (Berkeley and Los Angeles, 1986), pp. 80–6, 357. 14. For a recent treatment of these lengthy negotiations see A. Kiesewetter Die Anfänge der Regierung König Karls II von Anjou (1278–1295) (Husum, 1999), pp. 200–77. 15. The Gesta Guillelmi of William of Poitiers, ed. and trans. R.H.C. Davis and M. Chibnall (Oxford, 1998), p. 58. 16. Orderic Vitalis, pp. 532–4. 17. Orderic Vitalis, p. 76. 18. Suger, pp. 89–90, p. 95. 19. Suger, p. 103. 20. See above, pp. 37–8. 21. Vita Gaufredi, p. 196. 22. M. Prestwich, Edward I (London, 1988), p. 503; G.W.S. Barrow, Robert the Bruce, 2nd edn. (Edinburgh, 1976), pp. 121–6. 23. Giselbert of Mons, Chronicon Hanoniense, ed. W. Arndt (MGH SS, t. 21), 492. 24. For example, the peace between Thomas of Savoy and the people of Asti in November 1256; Wurstemberger, Peter der Zweite, no. 433. 25. Robert of Torigny, Chronica, p. 173. 26. D.J. Crouch, William Marshal. Court, Career and Chivalry in the Angevin Empire 1147–1219 (Harlow, 1990), p. 34. 27. M. Keen, The Laws of War in the Later Middle Ages (London and Toronto, 1965), p. 27. 28. Strickland, Warfare and Chivalry, p. 53. 29. Book of Ste Foy, p. 185. 30. Orderic Vitalis, p 192. 31. Book of Ste Foy, p. 129. 32. Suger, p. 96. 33. Strickland, Warfare and Chivalry, p. 51. 34. W.H. Jackson, Chivalry in Twelfth-Century Germany. The Works of Hartmann von Ave (Cambridge, 1994), p. 90. 35. AASS, November III, p. 156. 36. J. Dunbabin, France in the Making 843–1180, 2nd edn. (Oxford, 2000), pp. 273–7. 37. P.-A. Sigal, L’homme et le miracle dans la France médiévale (Paris, 1985), pp. 268–70. 38. C. Wickham, Early Medieval Italy. Central Power and Local Society 400–1000 (London, 1981), p. 188. 39. Chartes de Louis VI, t. 2 (Paris, 1994), no. 262, p. 58. 40. M. Bull, Knightly Piety and the Lay Response to the First Crusade: The Limousin and Gascony, c. 970– c. 1130 (Oxford, 1993), pp. 60–1. 41. Registres, no. 42, p. 89.

Notes

42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57.

58. 59. 60. 61. 62. 63. 64.

65.

187

Registres, no. 51, p. 99. Usatges, pp. 80–81. D. Waley, The Papal State in the Thirteenth Century (London, 1961), p. 207. Annales Gandenses, ed. H. Johnstone, pp. 77 and 79. For the long captivity of Charles II of Anjou’s sons in Catalonia, see above, p. 85. Wurstemberger, Peter der Zweite, IV, no. 475. The Song of the Cathar Wars, ed. J. Shirley (Aldershot, 1996), p. 116. Liber Instrumentorum Memorialium, p. 13. K.S. Nicholas, ‘Countesses as rulers in Flanders’, in ed. T. Evergates, Aristocratic Women in Medieval France (Philadelphia, 1999), 129. J.C. Holt, The Northerners. A Study in the Reign of King John (Oxford, 1961), p. 83. Olim, t. 1, p. 436. Olim, t. 1, p. 436. Wurstemberger, Peter der Zweite, IV, no. 480. Beaumanoir, Chapter 34, 1030, 1032. Beaumanoir, Chapter 30, 915. P.J. Jones, The Malatesta of Rimini and the Papal State (Cambridge, 1974), p. 31. W.C. Jordan, The French Monarchy and the Jews (Philadelphia, 1986), pp. 63–9, 173, 198, 215. H.G. Richardson, The English Jewry under Angevin Kings (London, 1960), pp. 169–72. A good account of this is to be found in P. Spufford, Money and its Use in Medieval Europe (Cambridge, 1988), pp. 240–63. cf Beaumanoir, Chapter 51, 1539, where bankrupt debtors could not be kept in prison for more than forty days, because there was no benefit to the creditor. Beaumanoir, Chapter 34, 1030, Chapter 24, p. 696. See the discussion above, pp. 76–8. Ordonnances des roys de France de la Troisième race, ed. E.J. de Laurière, t. 1 (Paris, 1723), p. 356. See above, p. 42, Bowsky, Siena under the Nine, p. 118. Pugh, Imprisonment, p. 141. For similar conditions extended to Jews held in the Tower of London between 1275 and 1276, see Calendar of the Plea Rolls of the Exchequer of the Jews, vol. IV, ed. H.G. Richardson, pp. 152 and 152. I am grateful to Robert Stacey for this reference. For the underConstable of the Tower of London permitting individuals to leave for a consideration, see H.G. Richardson, The English Jewry under Angevin Kings, p. 159 and note 3. RCA, lxxx, 254 speaks of ‘pernoctari in carcere Vicemagistri Iustitiarii Regni Sicilie’ of a debtor to the crown.

CHAPTER 7

CUSTODIAL AND PUNITIVE CAPTIVITY

1. See above, p. 95. 2. Codice diplomatico salernitano del secolo XIII, ed. C. Cerucci vol. 1 (Subiaco, 1931), 417, no. 276. 3. In his letter to the duchess of Brabant; see Aquinas. Selected Political Writings, ed. A.P. D’Entrèves (Oxford, 1965), pp. 90–2. 4. Actus pontificum Cenomannis in urbe degentium, ed. G. Busson and A. Ledru (Le Mans, 1901), pp. 365–6. This text says he was held for 7 years, which is incompatible with other evidence; and that he was held in chains, which is unlikely.

188 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15.

16. 17. 18. 19. 20. 21.

22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41.

Notes

Registres, no.100, p. 162. Orderic Vitalis, p. 178. Richard of St Germano Chronica in ed. Muratori, RIS, t. VII, part 2, p. 172. B. Arnold, German Knighthood 1050–1300 (Oxford, 1985), pp. 100–1. RCA, xcvii, 55. The Chronicle of Salimbene de Adam, trans. J.L. Bard, G. Baglivi and J.R. Kane (Brighampton, NY, 1986), p. 401. J. Dunbabin, Charles I of Anjou Power, Kingship and State-Making in Thirteenth-Century Europe (London, 1998), pp. 107, 111. Orderic Vitalis, p. 356. G.W.S. Barrow, Robert Bruce, 2nd edn. (Edinburgh, 1976), p. 156. A. Kiesewetter, Die Anfänge der Regierung König Karls II. von Anjou (Husum, 1999), p. 438. R. Fletcher, ‘A twelfth-century view of the Spanish past’, in ed. J. Maddicott and D.M. Palliser, The Medieval State. Essays presented to James Campbell (London, 2000), 147. B. Smith, Llewyllyn ap Gruffud, Prince of Wales (Cardiff, 1998), p. 74. M. Prestwich, Edward I (London, 1988), pp. 473–4, 490, 495. P. Rolland, Les origines de la commune de Tournai (Brussels, 1931), p. 201. Sachsenspiegel, p. 68. Beaumanoir, Chapter 1, 46. The Towns of Italy in the Later Middle Ages. Selected Sources, ed. and trans. T. Dean (Manchester, 2000), p. 162. For the background, S.R. Blanshei, ‘Crime and law enforcement in medieval Bologna’, Journal of Social History 16 (1982), 121–38. Etablissements, p. 70. Etablissements, p. 11. Beaumanoir, Chapter 30, 917. Beaumanoir, Chapter 1, 48. Summa de legibus Normannie in curia laicali, p. 172. Etablissements, pp. 114–15. Olim, t.1., passim. Olim, t.1., p. 482. Jones, Italian City State, p. 378. Jones, Italian City State, p. 377. A.A.M. Duncan, Scotland. The Making of the Kingdom (Edinburgh, 1975), p. 210. J.M. Baldwin, Masters, Princes and Merchants. The Social Views of Peter the Chanter and his Circle, 1 (Princeton, NJ, 1970), pp. 167–8. Peter Abelard: The Ethics, ed. D.E. Luscombe (Cambridge, 1971), p. 54. C. M. Radding, The Origins of Medieval Jurisprudence. Pavia and Bologna, 850–1150 (New Haven and London, 1988), p. 135. Chartes de Louis VI, vol. 1, no. 47. Le droit coutumier de Cambrai, t. 1, pp. 211–12. R. Bartlett, Trial by Fire and Water. The Medieval Judicial Ordeal (Oxford, 1986). Beaumanoir, Chapter 30, 917. A. Gouron, ‘Medieval courts and towns: examples from southern France’ in Juristes et droits savants: Bologne et la France médiévale, XIV (Aldershot, 2000), 39. RCA, cxii, 203.

Notes

42. 43. 44. 45. 46. 47. 48.

49. 50.

51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68.

189

Jones, Italian City State, p. 380. Olim, t. 2, p. 38. Olim, t. 2, p. 296. RCA, lx, 312. Die Chronicon des Saba Malaspina, ed. W. Koller and A. Nitschke (Hanover, 1999), pp. 214–15. M. Prestwich, Edward I (London, 1988), p. 202. Jones, Italian City State, p. 380; J.-C. Maire Vigueur, ‘Justice et politique dans l’Italie communale de la seconde moitié du XIIIe siècle: l’exemple de Perouse’, Comptes rendus de l’Académie des Inscriptions et Belles-lettres (1986), 323–4. Roison. Les franchises, lois et coutumes de la ville de Lille (Lille and Paris, 1842), p. 125. For a recent treatment of this see Fauvel Studies. Allegory, Chronicle, Music, and Image in Paris, Bibliothèque Nationale de France, MS Français 146, ed. M. Bent and A. Wathey (Oxford, 1998), pp. 36–7. W.C. Jordan, The French Monarchy and the Jews (Philadelphia, 1989), 219. R. Sternfeld, Karl von Anjou als Graf von Provence (1245–65) (Berlin, 1888), 291, clause 15. RCA, xxviii, 265. Bowsky, Siena under the Nine, p. 118. Jones, Italian City State, p. 380. The Miracles of Our Lady of Rocamadour, analysed and translated by M. Bull (Woodbridge, 1999), p. 129. This suggests that the archbishop already had a prison in Lyon, probably in one of his castles or by the town gate. J.F. Powers, A Society Organized for War. The Iberian Municipal Militias in the Central Middle Ages 1000–1284 (Berkeley and Los Angeles, 1988), p. 196. Beaumanoir, Chapter 30, 842. Beaumanoir, Chapter 11, 334. ‘L’emprisonnement dans le droit laïque du Moyen Age’, Revue historique de droit francais et étranger, 4th series (1968), 390. Olim, t. 2, p. 346. Olim, t. 2, p. 64. RCA, lix, 104. Le droit coutumier de Cambrai, t. 1, pp. 9, 10. L. Tanon, Histoire des justices des anciennes églises et communautés monastiques de Paris (Paris, 1883), pp. 134–5. Olim, t. 1, p. 779. Olim, t. 1, p. 435.

CHAPTER 8

CONDITIONS OF CAPTIVITY

1. La ‘Vita Dominici Siliensis’ de Grimaldo. Estudio, Ediciòn Crìtica y Tradduciòn by V. Valcarcel (Logrono, 1982), p. 356. 2. For evidence about actual conditions in Muslim jails in Cairo, see S. Gotein, A Mediterranean Society. An Abridgement in one volume, revised and edited by J. Lessner (Berkeley, Los Angeles, London, 1999), p. 178. 3. I rely here on the translation of C. Smith, Christians and Moors in Spain, vol. 1, (Warminster, 1988), p. 6.

190

Notes

4. Orderic Vitalis, p. 112. 5. C. Tyerman, ‘Were there any crusades in the twelfth century?’, EHR CX (1995), 556. 6. Orderic Vitalis, p. 94. 7. Galbert of Bruges. The Murder of Charles the Good, trans. J. Ross (Toronto, Buffalo, London, 1982), pp. 248, 258. 8. Margaret R. Toynbee, St Louis of Toulouse (Manchester, 1929), pp. 60–62. 9. S.R. Davies, ‘Marriage and the politics of friendship: The family of Charles II of Anjou, King of Naples’ unpublished University of London Ph.D. thesis, 1998, pp. 144–5. 10. Toynbee, St Louis of Toulouse. 11. Chronique artésienne, ed. F. Funck-Brentano (Paris, 1899), pp. 52–3. 12. S.R. Davies, ‘Marriage and the politics of friendship’, p. 256. 13. Annales Gandenses, ed. H. Johnstone (Reprint Oxford, 1985), p. 84. 14. Saba Malaspina, Chronik MGH SS, t. 35, ed. W. Koller and A. Nitschke (Hanover, 1999), p. 128. 15. J. Favier, Philippe le Bel (Paris, 1978), p. 528, a supposition based on La chronique métrique attribuée à Geffroy de Paris, ed. A. Diverrès (Strasburg, 1956), lines 5965–73. 16. Orderic Vitalis, p. 206. 17. Henry of Huntingdon, De Contemptu Mundi, ed. and trans. D. Greenway (Oxford, 1996), p. 603. 18. F.C. Hodgson, Venice in the Thirteenth and Fourteenth Centuries (London, 1910), p. 89, statute of 1242. 19. H.E.J. Cowdrey, Pope Gregory VII 1073–85 (Oxford, 1998), p. 269. 20. For the most recent treatment of this story, see A. Murray, Suicide in the Middle Ages vol. 1 The Violent against Themselves (Oxford, 1998), pp. 50–3. 21. Die Chronik des Saba Malaspina, p. 175. 22. Guillaume le Breton, Philippide, in Oeuvres de Rigord et de Guillaume le Breton, ed. H.-F. Delaborde, II (Paris, 1885), sections 163–200. 23. The Gesta Guillelmi of William of Poitiers, ed. R.H.C. Davies and M. Chibnall (Oxford, 1997), p. 68. 24. The Chronicle of the Slavs by Helmold, priest of Bosan, trans. F.J. Tschan (New York, 1935), p. 107. 25. Historia Novella, ed. E. King, trans. K.R. Potter (Oxford, 1998), p. 106. 26. Die Chronik des Saba Malaspina, p. 360. 27. The Autobiography of Giraldus Cambrensis, ed. and trans. H.E. Butler (London, 1937), p. 315. 28. P. Marchegay, ‘Chartes angevines des onzième et douzième siècles’, Bibliothèque de l’Ecole des Chartes, 36 (1875), 388. On this see J. Dunbabin, ‘Geoffrey of Chaumont, Thibaud of Blois and William the Conqueror’, Anglo-Norman Studies XVI (1994), 104–5. 29. RCA, viii, 533; xlix, 75. 30. De Contemptu mundi, ed and trans. D. Greenway (Oxford, 1996), p. 741. 31. L. Frati, La prigionia del Re Enzo a Bologna (Bologna, 1902), pp. 123–4. 32. Ibid., p. 137. 33. Le droit coutumier de Cambrai, t. 1, p. 31. 34. Institutes of Justinian, Book 2, tit.12.

Notes

35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68.

69. 70. 71.

191

Orderic Vitalis, p. 480. Marco Polo, The Travels, trans. R. Latham (Harmondsworth, 1959), p. 33. Vita Gaufredi, p. 195. The Song of the Cathar Wars, trans. J. Shirley (Aldershot, 1996), p. 40. Liber Augustalis or Constitutions of Melfi, trans. J.M. Powell (Syracuse, NY, 1971), p. 41. Gesta consulum Andegavorum, in Chroniques des comtes d’Anjou et des seigneurs d’Amboise, ed. L. Halphen and R. Poupardin (Paris, 1913), p. 130. RCA, cx, 185, cxii, 60, 519, 586, cxviii, 106. A. Porteau-Bitker, ‘L’emprisonnement dans le droit laïque du Moyen Age’, Revue historique de droit français et étranger, 4th series, 46 (1968), 423. Flandria generosa, ed. L.C. Bethman, MGH SS, t. 9, p. 322. RCA, cxx, 584. Beaumanoir, Chapter 51, 1539. Le Droit coutumier de Cambrai, pp. 8–9, 220. Roisin. Franchises, lois et coutumes de la ville de Lille, ed. Brun-Lavainne (Lille and Paris, 1842), p. 10. Bowsky, Siena under the Nine, p. 117. AASS, November III, p. 171. Book of Ste Foy, p. 190; Miracles of Our Lady of Rocamadour, trans. M. Bull (Woodbridge, 1999), p. 122. See above, p. 6. For example Olim, t. 2, p. 375. For example The Book of Ste Foy, pp. 99–100. A. Murray, Suicide in the Middle Ages, vol. I, pp. 181–2. Orderic Vitalis, p. 220. J. Gillingham, Richard the Lionheart (London, 1978), p. 58. Orderic Vitalis, p. 354. Olim, t. 1, p. 307. Song of the Cathar Wars, trans. J. Shirley (Aldershot, 1996), p. 28. RCA, lxiii, 47. M.M. Curley, The Conflict between Boniface VIII and Philip the Fair (Washington, DC, 1927), p. 138. Le droit coutumier de Cambrai, t. 1, p. 220. F.L. Cheyette, in Dictionary of the Middle Ages, ed. J. Strayer, vol. 3, pp. 278–9. Enquêtes administratives d’Alfonse de Poitiers, ed. P.F. Fournier and P. Guérin (Paris, 1959), p. 27. W.C. Jordan, The French Monarchy and the Jews (Philadelphia, 1989), p. 215. E.M. Peters, Torture (New York and Oxford, 1985), p. 61. Ibid. Where footnotes are not given in the following paragraphs, the information comes from Peters. William of Paris, in his Formulary written in the 1260s, spoke of torture only being used in the officiality of Paris against notorious criminals accused of serious crimes; Tanon, ‘Le formulaire de Guillaume de Paris’, pp. 204–5. This however, implies that it was not restricted to heretics. Codice diplomatico des regno di Carlo I e II d’Angio, ed. G. del Guidice (Naples, 1863), t. 2, doc. 86. For example Etablissements, p. 11. Jones, Italian City State, p. 378.

192

Notes

72. R.I. Moore, The Formation of a Persecuting Society. Power and Deviance in Western Europe 950–1250 (Oxford, 1987). 73. Bowsky, Siena under the Nine, p. 126. 74. S. Chojnacki, ‘Crime, punishment and the trecento Venetian state’ in Violence and Civil Disorder in Italian Cities, 1200–1500, ed. L. Martines (Berkeley and Los Angeles, 1972), p. 224. 75. Enquêtes administratives d’Alfonse de Poitiers, p. 61, clause 24. 76. J.-C. Maire Vigueur, ‘Justice et politique dans l’Italie communale de la seconde moitié du XIIIe siècle: l’exemple de Perouse’, in Comptes rendus de l’Académie des Inscriptions et Belles-lettres (1986), p. 322. 77. M. Barber, The Trial of the Templars (Cambridge, 1978). 78. Ibid., pp. 45–71. 79. Pugh, Imprisonment, p. 320. 80. Actus pontificum Cenomannis in urbe degentium, ed. G. Busson and A. Ledru (Le Mans, 1901), pp. 406–7. 81. Le Droit coutumier de Cambrai, t. 1, p. 220. 82. Bishop Maurice of Paris excommunicated the Prévot of Paris when he refused to allow priests to serve the Eucharist to condemned criminals in prison; J.M. Baldwin, Masters, Princes and Merchants (Princeton, NJ, 1970), vol. 1, p. 157. 83. J. Larner, Italy in the Age of Dante and Petrarch 1216–1380 (London, 1980), p. 206; Pugh, Imprisonment, pp. 319–20. 84. RCA, lvii, 279; lxx, 370.

CHAPTER 9

RELEASE FROM PRISON

1. Liber Instrumentorum Memorialium, p. 276, no. 143. 2. For example Bernard Itier, Chronique, ed. J.-L. Lemaitre (Paris, 1998), p. 32 of Abbot Hugh of St Martial, held for less than 20 days before being released by his own side. 3. G.A. Williams, Medieval London from Commune to Capital (London, 1963), p. 239. 4. J. Larner, The Lords of Romagna. Romagnol Society and the Origins of the Signoria (London, 1965), p. 45. 5. Romuald of Salerno Chronicon, trans. G.A. Loud and T. Wiedemann, in The History of the Tyrants of Sicily by ‘Hugo Falcandus’ (Manchester, 1998), p. 242. 6. Correspondance Administrative, vol. II, no. 1444, 157. 7. Roisin. Franchises, lois et coutumes de la ville de Lille (Lille and Paris, 1842), p. 2. 8. M. Prestwich, Edward I (London, 1988), p. 289; Jones, Italian City State, p. 378; J. Strayer, The Reign of Philip the Fair (Princeton, NJ, 1980), p. 232. 9. Chroniques des comtes d’Anjou et des seigneurs d’Amboise, ed. L. Halphen and R. Poupardin (Paris, 1913), p. 237. 10. Chartes de l’abbaye de Cluny, t. III, ed. A. Bernard and H. Bruel (1894), 304, no. 2118. 11. Jones, Italian City State, p. 380. 12. Registres du Trésor des Chartes t. ii. Règnes des fils de Philippe le Bel. Deuxième partie: Règne de Charles IV, ed. H. Jassemin, A. Vallée and J. Guerout (Paris, 1999), e.g. nos. 3986, 4286, 4465, 4484. 13. A. Kiesewetter, Die Anfänge der Regierung König Karls II von Anjou (1278–1295) (Husum, 1999), p. 438. 14. Cronica Boemorum, ed. D.R. Köpke, MGH SS, t. 9, p. 99. 15. L’Homme et le miracle dans la France médiévale (XI e -XII e siècle) (Paris, 1985), p. 268.

Notes

16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31.

32. 33. 34.

35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46.

193

AASS, November, vol. 3, 159. Book of Ste Foy, p. 102. Odo of Cluny, Vita Sancti Geraldi Auriliacensis, PL cxxxiii, cc. 654–5. Herman of Tournai The History of the Monastery of St Martin of Tournai, trans. L.H. Nelson (Washington, DC, 1996), p. 96. Book of Ste Foy, p. 52. P.-A. Sigal, L’homme et le miracle, p. 270. The Miracles of Our Lady of Rocamadour, analysed and translated by M. Bull (Woodbridge, 1999), pp. 109, 135, 109–19, 121–2, 114. Miracles of Our Lady of Rocamadour, p. 97. AASS, November III, p. 159–75. Tormented Voices. Power, Crisis and Humanity in Rural Catalonia 1140–1200, (Cambridge, Mass., 1998), pp. 1–27. John of Salisbury, Policraticus, trans. C. Nederman (Cambridge, 1990), p. 31. J.W. Brodman, Ransoming Captives in Crusader Spain. The Order of Merced on the Christian-Islamic Frontier (Philadelphia, 1986). S. Epstein, Wills and Wealth in Medieval Genoa (Cambridge, Mass., 1984), p. 187. D. Webb, Patrons and Defenders. The Saints in the Italian City States (London and New York, 1996), pp. 142–3. W. Heywood, A History of Perugia, ed. R.L. Douglas (New York and London, 1910), p. 20. Roger of Howden, Chronica, vol. II, pp. 112–13. Quoted and discussed by N. Kenaan-Kedar, ‘Aliénor d’Aquitaine conduite en captivité. Les paintures murales commémoratives de Sainte-Radegune de Chinon’, Cahiers de civilization médiévale, 41 (1993), 317–30. Chronica, vol. III, 306. I am grateful to Robert Stacey for this reference. Romoauld of Salerno chronicon, in A History of the Tyrants of Sicilty by ‘Hugo Falcandus’, trans. G.A. Loud and T. Wiedemann (Manchester, 1998), p. 239. E. Boutaric, ‘Documents inédits relatifs à l’histoire de France sous Philippe le Bel’, Notices et extraits des manuscripts de la Bibliothèque Nationale et autres bibliothèques, t. 20, pp. 153–4. Boutaric believes the king’s motive was to raise money by selling prisoners their freedom; but the letter says nothing of this; it orders that all confiscated goods should be returned to those freed, which cannot have been cheap. RCA, xcv, 199; cxii, 323. M. Prestwich, Edward I (London, 1988), p. 381. Chronique de Guillaume de Nangis, ed. H. Géraud (Paris, 1843), t. 1, p. 259. La summa de legibus Normannie in curia laicali, pp. 64–6. Gerald of Wales: The Journey through Wales, trans. L. Thorpe (Harmondsworth, 1978), p. 114. Olim, t.1, pp. 265–6. Olim, t. 2, p. 209. Song of the Cathar Wars, trans. J. Shirley (Aldershot, 1996), p. 40. Liber Instrumentorum Memorialium, p. 327, no. 185. Beaumanoir, Chapter 45, 1455. Le droit coutumier de Cambrai, t. 1, p. 220. Die Chronik des Saba Malaspina, ed. W. Koller and A. Nitschke, MGH SS, t. 35 (Hanover, 1999), p. 137.

194

Notes

47. 48. 49. 50.

Henry of Huntingdon, Historia Anglorum, trans. D. Greenway (Oxford, 1996), p. 596. B. Smith, Llewllyn ap Gruffudd, Prince of Wales (Cardiff, 1998), pp. 47–8. Etablissements, p. 58. Codice Diplomatico del regno di Carlo I e II d’Angio, ed. G. del Guidice, t. II 2 (Naples, 1902), no. 85. 51. Roger Howden, vol. 3, 247–8.

CHAPTER 10

ECCLESIASTICAL IMPRISONMENT

1. P.R.L. Brown, ‘Religious coercion in the Late Roman Empire: the case of North Africa’, History, 49 (1963), 83–101. 2. J.M. Baldwin, Masters, Princes, Merchants. The Social Views of Peter the Chanter, 1 (Princeton, NJ, 1970), p. 322. 3. For the link between sin, leprosy and social segregation, see R.I. Moore, The Formation of a Persecuting Society (Oxford, 1987), pp. 61–5. 4. PL, cxcv, 789–95. 5. PL, clvii, 1079–84. I am most grateful to Dr Berenice Kerr for this reference. 6. Pugh, Imprisonment, p. 377. 7. F.D. Logan, Runaway Religious in Medieval England, c. 1240–1540 (Cambridge, 1996), p. 152. 8. Jocelyn of Brakelond, p. 119. 9. Platelle ‘La violence et ses remèdes’, 101–73. 10. For example the abbot of Vézeley; see Hugh of Poitiers: the Vézelay Chronicle, trans. J. Scott and J.O. Ward (Brighampton, NY, 1992), pp. 184–97. 11. For a recent summary of research on this topic, with the emphasis on villages rather than towns, see C. Wickham, Community and Clientele in Twelfth-Century Tuscany. The origins of the Rural Commune in the Plain of Lucca (Oxford, 1998), p. 20. 12. P. Strait, Cologne in the Twelfth Century (Gainesville, Fl, 1974), pp. 23–43, 61–8. 13. J. Dunbabin, France in the Making, 843–1100, 2nd edn. (Oxford, 2000), p. 267. 14. Chartes et documents poitevins du 13 siècle en langue vulgaire, ed. M.S. La Du (Poitiers, 1960), t. 2, pp. 97–8. 15. D. Waley, The Papal State in the Thirteenth Century (London, 1961), p. 75. 16. J. Larner, The Lords of Romagna. Romangol Society and the origins of the Signoria in the Thirteenth Century (London, 1965), p. 45. 17. Jocelyn of Brakelond, p. 100. 18. See e.g. G.J. Campbell, ‘The Protest of St Louis’, Traditio 15 (1959), 405–18. 19. J. Baumel, Histoire d’une seigneurie du midi de la France. Naissance de Montpellier (985–1213) (Montpellier, 1969), p. 122. 20. Tanon, ‘Le formulaire de Guillaume de Paris’, pp. 228–9. 21. Olim, t. 1, p. 236. 22. Bowsky, Siena under the Nine, p. 111. 23. J. Strayer, The Reign of Philip the Fair (Princeton, NJ, 1980), pp. 262–68. 24. Ibid., pp. 300–13. 25. Corpus Iuris Canonici, vol. 2, cols. 1091–2. 26. Bernard Gui, Manuel de l’inquisiteur, t. 2, ed. G. Mollat (Paris, 1964), p. 127. 27. C. Morris, The Papal Monarchy. The Western Church from 1050 to 1250 (Oxford, 1989), p. 344. 28. R.I. Moore, The Birth of Popular Heresy (London, 1975), p. 63.

Notes

195

29. For good up-to-date accounts, M. Lambert, Medieval Heresy 2nd edn. (Oxford, 1992), pp. 62–104; R.I. Moore, The Formation of a Persecuting Society (Oxford, 1987), pp. 100–23. 30. ‘Le formulaire de Guillaume de Paris’, p. 233 lists the exceptional cases to which the normal rules of procedure did not apply. 31. J.B. Given, Inquisition and Medieval Society. Power, Discipline, and Resistance in Languedoc (Ithaca and London, 1997), pp. 51–7. 32. M. Lambert, The Cathars (Oxford, 1998), p. 256. 33. O. Guyotjeannin, Episcopus et Comes. Affirmation et déclin de la seigneurie épiscopale au nord du royaume de France (Geneva and Paris, 1987), 175, note 13. 34. J.B. Given, Inquisition and Medieval Society, p. 61. 35. RCA, cxii, 263. 36. J. Strayer, The Reign of Philip the Fair, pp. 260–3. 37. J.B. Given, Inquisition and Medieval society, p. 64. 38. J. Duvernoy, ‘Le Catharisme en Languedoc au debut du XIVe siècle’, Cahiers de Fanjeaux, 20, (1985), 55. 39. M. Lambert, The Cathars, p. 267. 40. Tanon, ‘Le formulaire de Guillaume de Paris’, pp. 204–5. 41. For example, the bishop of Paris’s 1309 instructions on the methods of interrogation to be adopted in his diocese to establish the guilt or innocence of individual Templars. M. Barber, The Trial of the Templars (Cambridge, 1978), pp. 114–15. 42. Bernard Gui, Manuel de l’inquisiteur, t. 2, p. 127. 43. E. Le Roy Ladurie, Montaillou. Village occitan de 1294 à 1324 (Paris, 1975), pp. 103, 149. 44. Surveiller et punir. Naissance de la prison (Paris, 1975), p. 235. 45. J.B. Given, Inquisition and Medieval Society, pp. 82–4.

CHAPTER 11

IMPRISONMENT AND THE MEDIEVAL IMAGINATION

1. RCA, lx, 248. 2. Memoriale Guillelmi Ventura de gestis civilium astiensium, ed. L. Muratori, RIS t. XI, cc. 161–4. The length of time cited for the captives at Aix is problematic. If it is roughly accurate, they must have been released as soon as Charles of Salerno was sent to Provence as governor, in 1279, and not once he became king, as the narrative implies. 3. Anthologie de la poèsie lyrique francaise des XIIe et XIIIe siècles, ed. J. Dufournet (Paris, 1989), pp. 96–9; English trans. in J. Gillingham, Richard I (New Haven and London, 1999), pp. 242–3. 4. Helen Nicholson, Chronicle of the Third Crusade. A Translation of the Itinerarium Peregrinorum et Geste Regis Ricardi (Aldershot, 1997), p. 384. 5. The Penguin Book of Hebrew Verse, ed. and trans. T. Carmi (Harmondsworth, 1981), 117, 415–6. 6. Ibid., p. 101 on the prison poems of Abraham Hakohen. For ransoming, see S. Gotein, A Mediterranean Society. An Abridgement in one volume. Revised and edited by J. Lessner (Berkeley, Los Angeles and London, 1999), pp. 123, 143–4. 7. See above, pp. 117, 120; also see Orderic Vitalis, pp. 220, 354. 8. William of Malmesbury’s comment on Robert of Leicester, see above, p. 118, may be a nod in Boethius’ direction.

196

Notes

9. See above, p. 121. 10. Ed. and trans. H.G. Richardson and G.O. Sayles, Selden Society (London, 1955, 1972 and 1985). 11. Ed. W.J. Whittaker and F.W. Maitland Selden Society (1893). 12. For Maitland’s view and his own disagreement, see H.G. Reuschlein, ‘Who Wrote The Mirror of Justices?’ Law Quarterly Review, 58 (1942), 265–79. 13. N. Denholm-Young, Collected Papers on Medieval Subjects (Oxford, 1946) pp. 68–79. I am grateful to Dr Paul Brand for corroborating this identification. 14. Boethius, Consolation of Philosophy, Book 2, 1, trans. S.J. Tester (Cambridge, Mass. and London, 1973), p. 179. 15. Cosmas of Prague, Chronicon Boemorum, ed. D.R. Köpke, MGH SS, t. 9, p. 80. 16. For example R.H. Bloch, Medieval French Literature and Law (Berkeley, Cal. 1971); W.H. Jackson, Chivalry in Twelfth-Century Germany. The Works of Hartmann von Ave (Cambridge, 1994), p. 247; F.L. Cheyette, ‘Women, poets, and politics in occitania’, in ed. T. Evergates, Aristocratic Women in Medieval France (Philadelphia, 1999), pp. 138–77. 17. Ed. M. Roques, CFMA (Paris, 1962), p. 4. I am most grateful to Miss E.M. Rutson for this reference. 18. Le Roman de la rose, lines 9311–30. 19. Ed. M. Roques (Paris, 1963), lines 6112–39. 20. ‘The Walling of New Ross – a Thirteenth-century French poem’, ed. H.E. Shields, Long Room, 12–13 (1975–6), 2433, lines 148–54. 21. Chapter 9. See also N. Denholm-Young, ‘Who wrote Fleta?’ p. 74. 22. Le Moniage Guillaume, seconde rédaction, ed. W. Cloetta (Paris, 1906), 198–202. 23. Chanson de Roland. Oxford Text and English Translation, ed. G. J. Brault (Philadelphia, 1984), lines 1821–9. 24. Ibid., ll, 3734–41. 25. Wace: La vie de sainte Marguerite, ed. E.A. Francis (Paris, 1932), p. 23. 26. See pp. 518–32, especially p. 522.

CHAPTER 12

CONCLUSION

1. Historical Foundations of the Common Law (London, 1969), p. 353.

FURTHER READING

No work on this subject can be unaffected by M. Foucault, Surveiller et punir. Naissance de la prison (Paris, 1975). I have not been able to read very much of the huge literature this book has spawned. But I have found very helpful The Oxford History of the Prison, ed. N. Morris and D.J. Rothman (Oxford, 1995); R.J. Evans, Rituals of Retribution. Capital Punishment in Germany, 1600–1987 (Oxford, 1996); and J.B. Bender, Imagining the Penitentiary. Fiction and the Architecture of Mind in EighteenthCentury England (Chicago and London, 1987), three very different sorts of books, all of which are rich in ideas.

Legal aspects Specifically on captivity or imprisonment in the high middle ages, there is comparatively little. Therefore the chapter by E.M. Peters, ‘Prison before the prison: the ancient and medieval worlds’ in The Oxford History of the Prison is especially valuable. A. Porteau-Bitker, ‘L’Emprisonnement dans le droit laïque du Moyen Age’, Revue historique de droit français et étranger 4th s., 46 (1968), 211–45 and 389–428, though narrower in scope, uses a number of texts interestingly. R.B. Pugh, Imprisonment in Medieval England (Cambridge, 1968) is the only book I have found wholly devoted to the subject in the medieval period; although it is admirable in its coverage of sources and judicious in its conclusions, it does now seem rather old-fashioned in approach. J.B. Given, Inquisition and Medieval Society: Power, Discipline, and Resistance in Languedoc (Ithaca and London, 1997) offers a rich insight, strongly influenced by Foucault, into inquisition procedures and inquisitorial imprisonment in Languedoc. In the course of his discussion, Given throws much light on the mur at Carcassonne. M. Basset, ‘Newgate prison in the middle ages’, Speculum 18 (1943), 233–46, is a parallel study of a single jail. There is an article on the Chatelet by F.L. Cheyette in The Dictionary of the Middle Ages, ed. J. Strayer, Vol. 3, pp. 278–9; and M.E. Wolfgang’s piece, ‘A Florentine Prison: Le Carceri delle Stinche’, which is mainly concerned with a rather later period, in Studies in the Renaissance 7 (1960), 148–66. Otherwise the subject of jails does not seem to have aroused much interest. The only book I have found on an individual’s imprisonment is L. Frati, La prigionia

197

198

Further Reading

del Re Enzo a Bologna (Bologna, 1902). Fundamental to an understanding of the re-emergence of judicial torture is E.M. Peters, Torture (New York and Oxford, 1985). While individual captivities are much discussed in historical literature, I have not found any study of captivity in itself. M. Strickland, Warfare and Chivalry. The Conduct and Perception of War in England and Normandy, 1066–1217 (Cambridge, 1996) is indispensable on conditions extended to those held for ransom in one part of Europe in the later eleventh and twelfth centuries. On sources, where English translations exist, I cite these rather than the originals, for ease of access. The University of Pennsylvania Press has done sterling work in commissioning English translations of law codes and tracts on customary law. The following have all proved most useful: The Lombard Laws, trans. K. Drew (1973). The Usatges of Barcelona. The Fundamental Law of Catalonia, trans. D.J. Kagay (1994). The Saxon Mirror. A Sachsenspiegel of the fourteenth century, trans. M. Dobozy (1999). The Etablissements de Saint Louis. Thirteenth-century Law Texts from Tours, Orléans, and Paris, trans. F.P.K. Akehurst (1996). The Coutumes de Beauvaisis of Philippe de Beaumanoir, trans. F.P.K. Akehurst (1992). Unfortunately I was unable to obtain the translation by S.P. Scott of Alfonso X’s Siete Partidas (Philadelphia, 1932), so had to make do with Las siete partidas del rey Don Alfonso el Sabio (3 vols), Madrid 1807. See also: Frederick II. Liber Augustalis or Constitutions of Melfi trans. J.M. Powell (Syracuse, NY, 1971). More localized customary law is to be found in: Coutumiers de Normandie. Textes critiques, ed. J. Tardif, t. 17, Le très ancien coutumier de Normandie (Paris, 1881); and t. 18, La Summa de legibus Normannie in curia laicali (Grand coutumier de Normandie) (Paris, 1881). P. Rolland, Les origines de la commune de Tournai (Brussels, 1931). Le droit coutumier de Cambrai, t. 1 ed. E.M. Meijers and A.S. de Blécourt (Haarlem, 1932). (This is invaluable for information about the town prison.) Roisin. Franchises, lois et coutumes de la ville de Lille ed. Brun-Lavainne (Lille and Paris, 1842), a fascinating treatize by the town clerk, written at the beginning of the fourteenth century. The Great Charter of Montpellier is printed in J. Baumel Histoire d’une seigneurie du midi de la France. Naissance de Montpellier (985–1213) (Montpellier, 1969), pp. 237–59. Some earlier material can be found in

Further Reading

199

Liber Instrumentorum Memorialium. Cartulaire des Guillems de Montpellier, Soc. archéologique de Montpellier (Montpellier, 1884–6). Recueil des chartes de Louis VI, ed. R.-H. Bautier and J. Dufour, 2 vols (Paris, 1992, 1994), includes a considerable number of charters of liberties for localities in or near the French royal demesne. Les Registres de Philippe Auguste, ed. J.W. Baldwin (Paris, 1992) contains useful material for the later twelfth and early thirteenth centuries. The legislation of various Italian communes, covered in the secondary literature cited below, sheds the occasional useful ray of light on concrete aspects of the subject. Unfortunately the proceedings of German town councils were not recorded until the fourteenth century, and little in the earliest records appears to offer information on this topic. The decisions of the Parlement of Paris relating to precise cases are to be found in Les Olim ou registres des arrêts rendus par la cour du roi, ed. le comte Beugnot, t. 1 (1254–73) (Paris, 1839) and t. 2 (1273–1318) (Paris, 1842). Although the judicial records for the Regno in the later thirteenth century have not survived, there is incidental material relating to them, and much direct information about imprisonment, in I Registri della Cancelleria angioina, ed. R. Filangieri et al. (Naples, 1950–). Only England possesses comparable material, fully covered in R.B. Pugh, Imprisonment in Medieval England (see above). The absence in other west European countries of central government records relating to criminal justice means that other sources can only yield at best an impressionistic picture of attitudes towards imprisonment or captivity. On how the criminal law worked in particular places, I have found the following helpful: H. Platelle, ‘La violence et ses remèdes en Flandre au XIe siècle’, Sacris Erudiri 20 (1971), 101–73; F. Olivier-Martin, Histoire du droit français des origines à la revolution (Montdirestien, 1948); E.N. van Kleffens, Hispanic Law until the end of the Middle Ages (Edinburgh, 1968); R. von Hippel, Deutsches Strafrecht, band 1 (Berlin, 1925) – though the author regards the period as offering little to the historian of law; L.I. Stern, The Criminal Law System of Medieval and Renaissance Florence (Baltimore, 1994). There is interesting treatment on the sources for the operation of criminal law in A. Murray, Suicide in the Middle Ages. Vol. 1. The Violent against Themselves (Oxford, 1998), pp. 120–48. The various essays in Crime, Society and the Law in Renaissance Italy, ed. T. Dean and K.J.P. Lowe (Cambridge, 1994), though mainly outside the period under discussion, contain stimulating ideas, as do those in Violence and Civil Disorder in

200

Further Reading

Italian Cities, 1200–1500, ed. L. Martinez (Berkeley and Los Angeles, 1972). On the study of the law, C.M. Radding, The Origins of Medieval Jurisprudence: Pavia and Bologna 850–1150 (New Haven, Ct, 1988) is very rewarding, as is G. Post, Studies in Medieval Legal Thought: Public Law and the State, 1100–1322 (Princeton, NJ, 1964). On the changing form of trials, R. Bartlett, Trial by Fire and Water: The Medieval Judicial Ordeal (Oxford, 1986) and E.M. Peters, Torture (New York and Oxford, 1985), pp. 48–53 on the development of the inquisitorial procedure. On ecclesiastical trials, see J.B. Given, Inquisition and Medieval Society, cited above, and an illuminating essay by E.M. Peters, ‘Destruction of the Flesh – Salvation of the Spirit: the paradoxes of torture in medieval Christian society’, in The Devil, Heresy and Witchcraft in the Middle Ages. Essays in Honour of Jeffrey B. Russell, ed. A. Ferreiro (Leiden, Boston and Cologne, 1998), 131–48. Also L. Tanon, ‘Notice sur le formularie de Guillaume de Paris’, Notices et extraits des manuscripts de la Biblliothèque Nationale et autres bibliothèques, t. 32, part 2, (Paris, 1888), 137–270.

Medieval societies The miracle stories that are so important as sources for captivity in the eleventh century are to be found in: Vita et miracula Sancti Leonardi, AASS November, III, pp. 149–82; The Book of Sainte Foy, trans. P. Sheingorn (Philadelphia, 1995); La “Vita Dominici Siliensis” de Grimaldo. Estudio, Ediciòn Critica y Traducciòn by V. Valcarel (Logrono, 1982). These can be compared against a later twelfth-century collection: The Miracles of Our Lady of Rocamadour trans. M. Bull (Woodbridge, 1999). An interpretation that relies heavily on evidence from the eleventhcentury miracles is that of P. Bonnassie, ‘Descriptions of fortresses in the Book of Miracles of Sainte Foy of Conques’ in Bonnassie, From Slavery to Feudalism in South-Western Europe (Cambridge, 1991), pp. 132–48. There is good commentary on these stories in P.-A. Sigal, L’Homme et le miracle dans la France médiévale, XIe–XIIe siècle (Paris, 1985), especially pp. 268–70. On castles, G. Fournier, Le château dans la France médiévale: essai de sociologie monumentale (Paris, 1978) is basic. On ‘the rise of the castellans’, see especially D. Barthélemy, ‘La mutation féodale a-t-elle eu lieu? (Note critique)’, Annales ESC xlvii (1992), 767–77; T.N. Bisson, ‘The “Feudal Revolution”’ , Past and Present 142 (1994), 6–42; the debate on Bisson’s

Further Reading

201

article: D. Barthélemy and S.C. White in Past and Present 152 (1996), 196–205 and 205–23; and T. Reuter and C. Wickham in Past and Present 155 (1997), 177–95 and 196–208. D. Barthélemy, La mutation de l’an mil a-t-elle eu lieu? Servage et chevalerie dans la France des X e et XIe siècles (Paris, 1997) puts his point of view at greater length. J. Dunbabin, France in the Making 843–1180, 2nd edn. (Oxford, 2000) offers a brief discussion, pp. xv–xxiii. On the fate of peasants, T.N. Bisson, Tormented Voices. Power, Crisis and Humanity in Rural Catalonia 1140–1200 (Cambridge, Mass., 1998). The chronicle sources I have found most useful are: Richer. Histoire de France, ed. and trans. R. Latouche, t. 2 (Paris, 1964); Radulphi Glaber Historiarium libre quinque ed. and trans. J. France (Oxford, 1989); Cronica Boemorum ed. D.R. Köpke, MGH SS, t. 9; Bruno De Bello Saxonico, ed. W. Wattenbach, MGH SSRGt15, (Hanover, 1880); Actus pontificum Cenomannis in urbe degentium, ed. G. Busson and A. Ledru (Le Mans, 1901); Herman of Tournai: The Restoration of the Monastery of St Martin’s at Tournai, trans. L.H. Nelson (Washington, DC, 1996); Orderic Vitalis: Ecclesiastical History Vol. 6, ed. and trans. M. Chibnall (Oxford, 1978); Flandria Generosa, ed. L.C. Bethman, MGH SS t. 9; Galbert of Bruges: The Murder of Charles the Good, Count of Flanders, trans. J. Ross (New York, 1959); The Chronicle of the Slavs by Helmold, Priest of Bosau, trans. F.J. Tschan, (New York, 1935); Giselberti Chronicon Hanoniense 1070–1195, ed. W. Arndt, MGH SS, t. 21; Suger: The Deeds of Louis the Fat trans. R.C. Cusimano and J. Moorhead (Washington, DC, 1992); Vita Gaufredi by John of Marmoutier in Chroniques des comtes d’Anjou et des seigneurs d’Amboise, ed. L. Halphen and R. Poupardin (Paris, 1939); Bernard Itier: Chronique trans. J.-L. Lemaitre (Paris, 1998); The Chronicle of Salimbene de Adam trans. J.L. Baird, G. Baglivi and J.R. Kane (Brighampton, NY, 1986); Die Chronik des Saba Malaspina, ed. W. Koller and A. Nitschke, MGH SS, t. 35 (Hanover, 1999); Chronique latine de Guillaume de Nangis de 1113 à 1300, 2 vols, ed. H. Géraud (Paris, 1843); Annales Gandenses, ed. and trans. H. Johnstone (Reprint Oxford, 1985);

202

Further Reading

The collection Medieval Monarchy in Action. The Reigns of Henry I to Henry IV, B.C. Hill (New York, 1968) is also useful. It is obviously impossible to provide anything but the briefest of bibliographies for individual countries or counties. The following represent starting points only: B. Arnold, German Knighthood 1050–1300 (Oxford, 1985); P. Strait, Cologne in the Twelfth Century (Gainesville, Fl, 1974); D. Abulafia, Frederick II (London, 1988); T.N. Bisson, The Crown of Aragon (Oxford, 1986); The Worlds of Alfonso the Learned and James the Conqueror. Intellect and Force in the Middle Ages, ed. R.I. Burns (Princeton, NJ, 1985); P.J. Jones, The Italian City State, 500–1300 (Oxford, 1997), especially pp. 378–82; W.M. Bowsky, An Italian Commune: Siena under the Nine 1287–1355, (Berkeley and Los Angeles, 1981); C. Wickham, Community and Clientele in Twelfth-century Tuscany. The Origins of the Rural Commune in the Plain of Lucca (Oxford, 1998); R. Brentano, Rome before Avignon (London, 1974); J.-C Maire-Vigueur, ‘Justice et politique dans l’Italie communale de la seconde moitié du XIIIe siècle: l’exemple de Perouse’, Comptes rendus de l’Académie des inscriptions et belles-lettres (1986), 312–30; S.R. Blanshei, ‘Crime and law enforcement in medieval Bologna’, Journal of Social History, 16 (1982), 121–38; D. Waley, The Papal State in the Thirteenth Century (London, 1961); D. Mattthew, The Norman Kingdom of Sicily (Cambridge, 1992); J. Dunbabin, Charles I of Anjou. Power, Kingship and State-Making in Thirteenth-Century Europe (London, 1998); A.A.M. Duncan, Scotland. The Making of the Kingdom (Edinburgh, 1975); G.W.S. Barrow, Kingship and Unity. Scotland 1000–1306 (London, 1981); B. Smith, Llewyllyn ap Gruffudd, Prince of Wales (Cardiff, 1996); J. Dunbabin, France in the Making 843–1180, 2nd edn (Oxford 2000); J.W. Baldwin, The Government of Philip Augustus (Berkeley and Los Angeles, 1986); W.C. Jordan, The French Monarchy and the Jews (Philadelphia, 1986); J. Strayer, The Reign of Philip the Fair (Princeton NJ, 1980). Other themes: Warfare and ransom, M. Strickland, Warfare and Chivalry cited above; M. Keen, The Laws of War in the Middle Ages (London and Toronto, 1965); the Templars, M. Barber, The Trial of the Templars (Cambridge, 1978); heresy, R.I. Moore, The Formation of a Persecuting Society. Power and Deviance in Western Europe 950–1250 (Oxford, 1987); M. Lambert, The Cathars (Oxford, 1998).

INDEX

A Adalbéron, bishop of Laon, 29–30 Alexander II, king of Scotland, 101 Alfonso VI, king of Castile, 101 Alfonso X, king of Castile, 7, 54, 58, 61, 112, 161 Alphonse of Poitiers, count of Toulouse, 46, 47, 56, 57, 79, 127 Alphonse III, king of Aragon, 85 Anagni, 81 See also treaty of, 85 Aragon, crown of, 8, 12, 48, 49, 74, 104, 115, 116, 127, 157, 171, 172 See also Alphonse III, James I, James II, Ramon Berenguer IV Arnoul, archbishop of Reims, 29 Asti, 55, 91, 94, 159–60 Aucussin et Nicolete, 165, 167 B Baldwin IX, count of Flanders, 84, 90, 92 Baschet, J., 169 Bisson, Thomas, 35, 51, 136, 200, 201, 202 Boethius, Consolation of Philosophy, 162–4 Bologna, 16–17, 21, 22, 38, 39, 58, 59–60, 102–3, 120, 131, 147, 172 Boniface VIII, 81, 83, 124, 150–1 Bourges, 93 Bruges, 115 C Cambrai, 41, 42, 57–8, 66, 67, 77, 106, 112, 120, 122, 124, 129, 141, 169 Carcassonne, 154, 155, 156, 197

castles, 34–40, 41, 50–2, 53, 93, 100, 129, 171 Castile, 7, 8, 15, 48, 76, 101, 104, 171, 172 See also Alfonso VI, Alfonso X Catalonia, 33, 50, 51, 67–9, 76, 90, 136 See also Usatges of Barcelona Charlemagne, emperor, 21, 22, 25 Charles I of Anjou, king of the Regno, 8, 11, 34, 38–9, 40, 54, 55, 57, 59, 60, 79, 85, 90, 98, 99–100, 101, 109, 111, 117, 118, 119, 122, 124, 126, 131, 133, 139–40, 142, 154, 157, 159–60 Charles II, king of the Regno, 85, 101, 115, 116, 117, 119, 160 Charles the Good, count of Flanders, 9, 115 Charles of Lorraine, claimant to the throne of France, 29–30 Chartres, 71, 93, 112 Châtelet, fortress in Paris, 40, 42, 58, 60, 103, 105, 112, 124 Chrétien de Troyes, 166–7 Chanson de Roland (Oxford), 167–8 Clement IV, pope, 97 Clement V, pope, 128, 150–1 Cologne, 146 Bishop of, 66 Colonna family, 82, 83 Compiègne, 77, 149 Conques, 33, 36 Conrad II, emperor, 31 Constantine, emperor, 20 Corradin, claimant to the Regno, 11, 109, 142 Cosmas of Prague, chronicler, 31, 133, 164 Courtrai, battle of, 10, 116 203

204

Index

Coutumes de Beauvaisis, 15, 42, 58, 67, 75, 77, 94, 95, 98, 102, 104, 108, 112, 122, 128, 141 D Dante Alighieri, 6, 169 Denholm-Young, N., 164 Duby, Georges, 18, 34–5 Dudo of St Quentin, 30–1 E Edward I, king of England, 8, 38, 86–7, 95, 110, 117, 140 Eleanor, duchess of Aquitaine, 139 Enzo, king of Sardinia, 16–17, 38, 59–60, 120 Etablissements de St Louis, 46–7, 54, 103, 142 Eugenius III, pope, 152–3 Everard, castellan of Tournai, 3–4, 6–7, 33 F Favier, Jean, 117 Ferrand, count of Flanders, 118, 133 Fichtenau, Heinrich, 9 Flanders, 10, 33, 49, 52, 74, 75, 87, 91, 92, 115, 133, 137 See also Baldwin IX, Charles the Good, Ferrand, Guy, Robert I and Robert II Fleet, prison in London, 96, 164 Florence, 6, 42, 57, 96, 121 Foucault, Michel, 17, 42, 79, 80, 110, 157, 197 Frederick I Barbarossa, emperor, 9 Frederick II, emperor, 11, 16, 34, 38, 48, 61, 63, 70–1, 84, 99, 118, 120, 121 Fulda, monastery, 25 Fulk Nerra, count of Anjou, 85 Fulk le Réchin, count of Anjou, 132 G Galbert of Bruges, chronicler, 115, 201 Gascony, 49, 108, 135

Genoa, 38, 120, 138, 159, 162 Geoffrey le Bel, count of Anjou, 38, 39, 53, 54, 86, 121 Geoffrey Martel, count of Anjou, 83, 98 Gerald of Wales, 65, 119, 140 Gerbert of Aurillac, 9 Ghent, 41, 116, 127 Gillingham, John, 9, 63, 68 Grand coutumier de Normandie, 44, 45, 75, 78, 140, 198 Gregory VII, pope, 65 Gregory IX, pope, 82, 153 Gregory X, pope, 82 Guibert of Nogent, chronicler, 65 Guillaume de Nogaret, minister of Philip IV, 82 Guy, count of Flanders, 117 H Helmold, author of Chronicle of the Slavs, 13, 201 Henry I, king of France, 30 Henry I, king of England and duke of Normandy, 9, 12, 38, 63, 70, 88, 99, 100, 101, 115, 117, 124 Henry II, emperor, 25, 31 Henry II, king of England and duke of Normandy, 34, 39, 40, 43, 73, 83, 87, 124, 139 Henry III, emperor, 118 Henry III, king of England and duke of Gascony, 40, 97, 130 Henry IV, emperor, 54, 65, 66, 81, 118 Henry V, emperor, 13, 80–1 Henry VI, emperor, 5,7, 92 Henry, bishop of Beauvais, 55, 83, 99 Henry of Huntingdon, chronicler, 120 Herman of Tournai, 3–4, 7, 135 Hobbes, Thomas, 1, 32, 43 Hugh Capet, king of France, 28, 29, 79 Hugh de Crécy, French baron, 9, 37 Hugh du Puiset, French baron, 72, 86, 89

Index

I Innocent II, pope, 83 Innocent III, pope, 153 Ireland, 50 J jail delivery, 20, 58, 105, 131–2 James I, king of Aragon, 40 James II, king of Aragon, 85 Jews, 8, 73, 79, 94–5, 96, 110–11, 125, 161 Jocelin of Brakelond, chronicler, 25, 145, 147–8 John, king of England, 71, 84, 93, 101 John Balliol, king of Scotland, 8, 101 John of Marmoutier, chronicler, 37–8, 53, 54, 86, 121, 201 John of Salisbury, 136, 138 Justinian, emperor, 19, 22, 23, 172 K Keen, Maurice, 11, 202 L Laon, 44, 74, 113 See also Adalbéron, bishop of Le Mans, 85, 129 Bishop of, 98, 129 Le Roi Ladurie, E., 157 Leo IX, pope, 83 Leopold, duke of Austria, 4–5 Leyser, Karl, 64 Liber Augustalis, 61, 198 Life of St Dominic of Silos by Grimaldus, 114, 133, 176 n.40, 200 Lille, 77, 91, 110, 122–3, 131, 169 Limoges, viscounts of, 32, 51, 53, 71, 88 Llywellyn ap Gruffud, prince of Gwynedd, 101 Lombard law, 18–21, 105 Louis IV, king of France, 29, 30 Louis VI, king of France, 9, 40, 86, 90, 106, 115 Louis VII, king of France, 37, 83, 146 Louis IX, king of France, 56, 57, 113, 127, 140

205

Louis of Toulouse, saint, 85, 101, 115–16 Louvre, fortress in Paris, 40, 110, 118, 133, 150–1 Lucca, 6 Lyon, 82, 111–12, 135 Archbishop-elect of, 91 M Magnou-Nortier, Elizabeth, 35 Manfred, king of the Regno, 11, 101, 117, 118 Marco Polo, 120, 162–3 Margaret of Burgundy, 38, 117 Marigny, Enguerran de, minister of Philip IV, 110 Marmoutier, abbey of, 119 Marra, della, family, 100, 121 Marseilles, 40, 57, 109, 111 Matthew Paris, 34, 39, 142 Mayeul, abbot of Cluny, 27 Messina, 119, 131 Metz, 110 Miesco, duke of Poland, 31 Milsom, S.F.C., 173 Miracles of Our Lady of Rocamadour, 111–12, 123, 133, 135, 200 Miracles of St Foy, 33, 36, 37, 38, 88, 123, 133, 134–5, 200 Miracles of St Leonard, 32–3, 36, 38, 51, 89, 123, 133–4, 136, 200 Moissac, abbot of, 47, 50 Moniage Guillaume, Le, 167, 168 Montpellier, 40, 69–70, 76, 108 See also James I of Aragon, William V, William VI and William VII, lords Montreuil-Bellay, 60; Gerald of, 39 N Naples, 85, 110, 119 Newgate, prison in London, 40, 61, 197 Notre Dame, cathedral of Paris, 43, 113 Normandy, 52, 53, 55, 64, 74, 78, 83, 100, 104, 115, 128 See also dukes Henry I, Henry II, Robert Courthose

206

Index

O Odilo, abbot of Cluny, 132 Odo, abbot of Tournai, 3–4, 33, 133 Olim, 16, 26, 47–8, 54, 56, 57, 59, 74, 75, 77, 78, 93, 104, 105, 108, 112, 124, 140–1, 149, 199 Orderic Vitalis, chronicler, 13, 63, 64, 67, 70, 85, 88, 117, 120, 124, 162, 201 Otto I, emperor, 28, 29 P Pandulf, prince of Capua, 28 Parlement of Paris, 49 See also Olim Paschal II, pope, 13, 80–1 Pavia, 21, 22, 39 Peace of God movement, 65, 66, 74, 89, 146 Peter Abelard, philosopher and theologian, 106 Peter the Chanter, theologian, 58, 106, 144 Peters, Edward, 1, 126, 197, 198, 200 Philip II Augustus, king of France, 39, 47, 71, 73, 84, 90, 92, 102, 118, 133, 146, 160, 165 Philip IV, king of France, 44, 82, 91, 95–6, 101, 110, 112, 117, 127–8, 139, 150–1, 155, 173 Philippe de Beaumanoir, lawyer See Coutumes de Beauvaisis Pisa, 6, 7, 138 Pugh, Ralph, 11, 197 R Ramon Berenguer IV, king-count of Aragon-Catalonia, 15, 69 Raoul Glaber, chronicler, 27, 201 Raymond V, count of Toulouse, 89 Reims, 44, 45, 152 Rhenish-Frankish peace of 1179, 10, 89 Richard I, king of England and duke of Aquitaine and Normandy, 4–6, 55, 65, 88, 92, 139, 142, 160–1, 165 Richard I, duke of Normandy, 30

Richard of Cornwall, titular emperor, 94, 106 Richer of Reims, chronicler, 29, 79, 201 Richilda, countess of Hainault, 87, 121 Riquewihr, 40 Robert Courthose, duke of Normandy, 101, 115, 169 Robert I, count of Flanders, 4, 87 Robert II, count of Flanders, 3, 4 Robert of Torigny, chronicler, 38, 87 Roger II, king of Sicily, 83 Roger of Howden, chronicler, 139 Roman de la Rose, Le, 165–6 Roman law, 7, 10, 18–23, 86, 107, 108, 111, 113, 120, 126, 136, 172 Rome, 23, 25, 39, 65, 72, 79, 80–1, 82, 90 Rouen, 38, 99 Archbishop of, 92 Rufoli family, 100, 121 Rule of St Benedict, 24 S Saba Malaspina, chronicler, 23, 141, 201 Sachsenspiegel, 62, 74, 75, 77, 102, 198 St Omer, 59 Salimbene, chronicler, 63, 64, 100, 201 Scotland, 41, 48, 50, 83–4, 106, 171 See also Alexander II, John Balliol, William the Lion Sens, 48, 57, 74, 150–1 Siena, 41, 42, 57, 96, 123, 127, 149, 202 Sigal, P.-A., 89, 133, 135, 200 Simon de Montfort, count of Toulouse, 91, 124 Siete Partidas, 7, 33, 54, 58, 61, 112, 198 Stephen, king of England, 117, 120 Strickland, Matthew, 9–10, 63, 68, 198, 202 Suger, abbot of St Denis, 37, 52, 86, 89, 201

Index

T Templars, 127–8, 150–1 Thibaud III, count of Blois, 83, 84, 119 Thomas Aquinas, 98 Tommaso di Pavia, chronicler, 120 torture, 22,108, 125–8, 153, 156 Toulouse, 78, 91–2, 127 See also Alphonse of Poitiers, Raymond V, Simon de Montfort, counts Tours, 83, 119, 121 Tower of London, 8, 40, 54, 101 U Ugolino della Gherdesca, ruler of Pisa, 6–7, 123 Ulpian, Roman lawyer, 19, 22, 111 Usatges of Barcelona, 14–15, 67–9, 70, 74, 75–6, 90, 198 V Valdemar, king of Denmark, 66, 84 Venice, 42, 43–4, 45, 58, 77, 111, 118, 124, 127, 162 Vézelay, 39

207

Vie de sainte Marguerite, La, 168 Visigothic law code, 15, 18–21, 28, 68 W Walling of New Ross, The, 166–7 William II, king of the Regno, 139 William the Lion, king of Scotland, 83–4 William VII, duke of Aquitaine, 85–6 William V, lord of Montpellier, 69, 92 William VI, lord of Montpellier, 69, 148 William VII, lord of Montpellier, 130, 141 William of Malmesbury, chronicler, 118, 195 n.8 William of Paris, 80, 148, 152, 156 William of Poitiers, chronicler, 85 William Wallace, 87 Y York, 60, 84 Archbishop of, 145 Yvo of Chartres, canon lawyer, 90