It is easy to imagine that on this early morning in 1395, Antonius, realizing the magnitude of his actions, had little time to fabricate a defense or construct a plan. In late fourteenth-century Reggio Emilia, flight was often the most desirable path open to those suspected of perpetrating felonies. Subsequent witnesses in this murder investigation speculated that Antonius fled the territory of the Villa de Vetto before the first light of day less to evade the law than to avoid the wrath of Caterina's relatives. Propelled by the need to escape retribution, Antonius, like almost half the defendants cited by the criminal court of Reggio Emilia, fled rather than appear before the criminal judge.

The criminal judge of Reggio Emilia had a difficult mandate in attempting to adjudicate major felonies in violent and uncertain surroundings. This small northern Italian city was acquired in 1371 by the expanding dominion of the Visconti of Milan. In Reggio, the rulers of Milan gained a city that was strategically placed but that was also in full economic crisis, largely depopulated by plague and constant war. Many municipalities faced similar struggles at the end of the fourteenth century, but this region was, as Natale Grimaldi observed, perhaps the most desolate in the Visconti realm. A recent study of political identity at Reggio drew a complex portrait of the power dynamics in this beleaguered city, demonstrating the feudal nature of the contado and the complex relationship of the podestà and his retinue with the political life of the city.Footnote ² Registers of decrees from the years of Visconti reign reveal that the scarcity of pecuniary condemnations collected from the criminal court created great difficulty in amassing the podestà's salary; the scarcity of doctors of law in the region also meant that few civil cases could be tried.Footnote ³

Reggio maintained jurisdiction of the surrounding countryside, but the authority of the podestarial court was sometimes tenuous. Certainly, citations to appear before the iudex maleficorum were often unheeded, resulting in a contumacy rate in the court of the criminal judge that averaged approximately 48 percent at the end of the fourteenth century.Footnote ⁴ But although this number appears high, it is not unusually so. A sample of trial registers from Bologna yields a similar result, showing a contumacy rate of 52 percent in 1372, while another sample from Bologna in 1393 indicates that 44 percent of defendants failed to answer their summons.Footnote ⁵ In Florence, records from the early 1380s show a contumacy rate of 56 percent.Footnote ⁶ Some cities had significantly higher rates of contumacy. Fifteenth-century Mantua had contumacy rates averaging between two-thirds and three-fourths of recorded cases, with four-fifths in 1456.Footnote ⁷ Although these numbers may be inflated, as I will discuss below, it is clear that contumacy was widespread, even as courts attempted to compel compliance with their orders.

The problem of contumacy, therefore, was not a localized one, and Reggio's high contumacy rate should not be solely attributed to its difficult circumstances at the end of the fourteenth century. Contumacy was a fact of life in late medieval courts, and recent scholarship suggests that contumacy and its legal remedy, the criminal ban, were tools that served dispute resolution, separating the parties involved to allow a “cooling off” period and serving in this way to limit vendetta.Footnote ⁸ In this view, contumacy could be important to parties involved in processes, allowing them time and opportunity to strategize in an effort to limit the damage of a criminal conviction. Other studies hold that contumacy could even be desirable from the court's perspective, allowing judges to avoid rendering verdicts in contentious or politically volatile cases.Footnote ⁹

This understanding of contumacy as a choice made by parties in conflict is part of a bigger historiographical picture of late medieval justice that has drawn necessary attention to the active involvement of the parties in conflict in the judicial system, rather than portraying these parties as more passive participants in the hands of an impersonal criminal court. Studies of Perugian and Bolognese archival material have demonstrated the use of criminal courts to further political agendas.Footnote ¹⁰ Accusatorial and inquisitorial systems operated in the highly charged political atmosphere of late medieval urban centers, and partisan interests shaped prosecution patterns.Footnote ¹¹ Inquisitorial procedure, the dominant criminal procedure in late medieval Italian criminal courts, was theoretically a more public and impersonal form of justice, but in reality, it shared a great deal with accusation procedure, which allowed much more involvement of the parties in conflict.Footnote ¹²

This relationship between criminal courts and dispute resolution has been the subject of a wave of important scholarship on the late medieval courts, which demonstrates that there was no clear and solid line between the formal systems of justice and the actions and agendas of parties in conflict. Formal prosecution in this sense is repressive justice, whereas conflict resolution is the cornerstone of informal justice inside communities.Footnote ¹³ Trials are a stage in the settlement of a conflict, not an end in themselves; parties could use and manipulate the institutions of justice to assist in their ongoing conflicts.Footnote ¹⁴ Public justice took on the characteristics of informal, private systems of justice, and revenge and the vendetta were not isolated from the function of the criminal courts.Footnote ¹⁵

These important observations on the function of late medieval justice add much dimension to our understanding of conflict and the courts. Trevor Dean's caveat that the criminal justice system offered less room for strategy than did civil justice, however, is important to bear in mind,Footnote ¹⁶ as is his observation that the function of justice was highly localized, with urban centers having a more repressive form of justice than smaller towns had.Footnote ¹⁷

The problem of contumacy provides a small window into this much bigger picture of late medieval justice. Considering the function of contumacy in medieval justice is necessary for understanding the function of the justice system, because it was the result in nearly half of the recorded criminal trials, not just at Reggio but in other cities as well. Contumacy presented a difficult problem for late medieval governments, and it gave a number of puzzles to jurists who tried to define the legal status of those under criminal ban. This article will explore contumacy and its result, the criminal ban, from the perspective of the government, the law, and, where possible, the parties in question, in an effort to shed light on the role of contumacy in late medieval justice.

Contumacy and Law Enforcement

The potential severity of the consequences of contumacy shaped criminal procedure. In the late medieval criminal courts of northern Italy, contumacy carried the weight of conviction. This harsh equation was doubtlessly intended to encourage compliance with a summons to court, something that policing alone could not do. At Reggio, police forces do not appear to have been widespread or particularly effective in capturing contumacious criminals, and there is little surviving documentation of policing in the city. The familiares of the podestà are mentioned occasionally in the records as helping to investigate crime.Footnote ¹⁸ The knight of justice of the commune was obligated, in addition, to capture and bring to justice malefactores and banniti.Footnote ¹⁹ These figures, however, seldom appear in the records. Other policing officials appear in the statutes, although rarely if at all in the criminal records.Footnote ²⁰ The podestà traveled with his own berovarii, a sort of armed police charged with maintaining public order.Footnote ²¹ Only the podestà is described in the statutes as having berovarii, but it is very likely that other officials, such as the knight of justice or the captain of the military, did as well. Certainly in other cities such as Florence, the latter half of the fourteenth century saw an increase in the number of officials employed to maintain law and order, and these men had contingents of berovarii. This increase was common in Italy and north of the Alps as well, probably as a result of the chaos following the Black Death and subsequent revolts.Footnote ²²

Outside of the city, the capitano del divieto was invested with authority over the highways and outlawry. He resided outside the city in Montecchio, a location central to the territories under his jurisdiction, that is, the districts of Parma, Reggio, and Borgo San Donnino. As Andrea Gamberini observed, this official, while acting as a kind of podestà of the district, was regarded very differently by the citizens of Reggio than was the urban podestà.Footnote ²³ While the podestà seemed more a representative of the city to the Visconti, rather than a representative of signorial justice to the city, the relationship between Reggio and the capitano del divieto was more tense. Holding authority over the treacherous highways and mountain passes around Reggio, and entrusted with jurisdiction over contraband as well as over outlaws and those banned for life from the commune, the capitano del divieto received a salary that was to be paid by monies collected from pecuniary condemnations, and this perhaps as much as anything led to a reputation for extortion.Footnote ²⁴ In addition to jurisdiction over contraband, the capitano del divieto received “authority, jurisdiction, and power of pursuing and capturing murderers, highwaymen, assassins, and scoundrels (malandrinos) … and of capturing those who have been banned since the end of the year 1380…”Footnote ²⁵ The capitano del divieto was entrusted with the ability to dispense summary justice to these captured banniti, and he held the ius gladii, though the decree required that he take legal advice in consultation with jurisconsults.

Yet in spite of the presence of these officers, contumacy rates remained high. Other measures against contumacy were necessary, if not to successfully bring the defendant to justice, then at least to make public the government's power and authority to convict. The most important weapon the commune had against contumacious felons was not policing but rather a public citation procedure, and for this reason, the process of citation was carefully delineated in the statutes and recorded in trial proceedings. A careful citation process was needed to ensure that contumacy could reasonably be understood as a voluntary act, not a result of ignorance of the charges. The process made denunciations public and made the community aware of judicial proceedings against their neighbors. It ensured that defendants were aware of the charge made against them, so that contumacy could be interpreted as willful and therefore as a justifiable ground for conviction in absentia.Footnote ²⁶ It also served as a public assertion of the government's jurisdiction over territories and people.

The statutes of Reggio Emilia deal with this crucial phase of the criminal process at some length.Footnote ²⁷ Citation procedure itself, which has been discussed in detail by Pazzaglini,Footnote ²⁸ ensured that not only the accused but also the neighbors of the accused were made aware of the court case. The statutes required certain information to be present in the citation: the name of the judge and the day and hour at which the accused was cited, the name of the accused, and the name of the victim. The place and time of the crime itself were also included. The public crier (nuncius) of the commune attempted to deliver the written citation personally; if this proved impossible, he nailed it to the door of the home of the accused, with two neighbors as witnesses. The accused was also summoned orally. He or she was given a period of not less than three days to respond to the summons. If the person was a foreigner, the citation took place at the public assembly-place of the commune and a term of six days would be allowed for the accused to respond. If the cited individuals did not appear, a further term of six days was allowed for making a defense, and if those accused still did not come, then they had a final term of four days to make it known to the court why they should not be condemned. If they still failed to appear, the defendants were placed under the criminal ban. These periods gave the accused time to respond; at the same time, because these terms were publicly announced, they also created windows of time in which the defendants, their families, and their creditors could take appropriate measures to protect themselves and their assets, as I will discuss below.

Although the criminal ban was not a uniform institution in Italian cities, showing clear local variation in its process and application, the essential point of the procedure was, as Cavalca noted, to ensure that defendants had been cited either personally or, if absent, at their residences.Footnote ²⁹ Therefore it consisted of several stages that were roughly similar. The bannum simplex was issued immediately after the failure to appear, serving as a public warning to the accused to appear before the judge within a certain number of days. The bannum conditionale, issued after the defendant ignored the bannum simplex, placed the criminal under ban unless he or she appeared before the judge. This stage of the ban also included a statement of whether the ban included confiscation of goods or whether the ban was in persona, meaning the defendant's person could be assaulted with impunity. Once the term given in the bannum conditionale expired, the defendant was entered into the books of bans. In the case of crimes that carried a capital sentence, the presence of the ban in the Libri bannitorum was necessary for the ban to be considered valid. These books usually contained only the names of those banned for serious crimes, not for crimes that did not bear a capital sentence, or for civil offenses.Footnote ³⁰ Effectively, those banned for major felonies were set beyond the protection of the law.

The citation process made special provisions for those without fixed residence, requiring the charges to be publicly read. A typical example is the 1373 case of Egen, a German man denoted as forensis et vagabundus. Egen was accused of committing a serious assault against a German mercenary. The trial record tells us that the criminal judge, aware that Egen had no residence in Reggio where he could be cited, ordered the public crier of Reggio to go to the assembly place of the commune, “and there, publicly and in a loud voice, with the sound of the trumpet and a call beforehand, let him cite and require the abovementioned Egen … that he should appear here…”Footnote ³¹ The formality and publicity of the announcements were an important means of publicizing the alleged crimes of the defendants and were a display of the court's jurisdiction. Particularly in the case of the vagabonds, who were unsurprisingly contumacious in 81 percent of the cases where they were listed as defendants, these public citations represent an assertion of public authority over those who existed on the periphery of municipal life.

The hearing of a citation conferred obligations upon the community. Once a ban was pronounced, individuals and communities had the obligation to aid in their capture, and failing to do so could result in criminal charges. Statutes also penalized those who aided persons under ban. During the fourteenth century, penalties for those harboring persons under ban increased. The 1335 and 1392 statutes concerning people who harbor persons under ban also institute pecuniary penalties differentiated by status and ranging from twenty-five Reggian Lire (R.L.) for harboring a banned person, and one hundred pounds R.L. for harboring a rebel, unless they delivered the banned person or rebel into the hands of the podestà and the commune of Reggio. Communities could be held responsible to the sum of fifty-five pounds R.L. Pupils (minor children until the age of seventeen for boys and fifteen for girls; majority was reached at age twenty-five), orphans, widows, and other impoverished people were exempt. The people of the community were exempt in cases where they were powerless to apprehend the banned person or rebel, as long as they denounced the culprit to the podestà, so that the podestà could send his officials there to capture the banned person or rebels.Footnote ³²

The statute from the 1411 redaction that deals with people who harbor banniti is more severe, and leaves judgment to the discretion (arbitrium) of the podestà. This alone is not surprising, as late fourteenth-century statutes in general and the Reggio statutes in particular show a marked tendency to give wider allowance to judicial discretion over the course of the late fourteenth and early fifteenth centuries.Footnote ³³ The 1411 redaction commands that those harboring banned persons or rebels should suffer the same penalty that the fugitive faced. If that punishment were corporal, then the punishment of those providing shelter or refuge would be determined by the arbitrium of the podestà.Footnote ³⁴ Public, capital punishment for this offense again served the dual function of punishment of crime and a public display of the commune's power, intended at least in part to serve as a deterrent to those who would assist outlaws. These laws represent the city's effort to isolate criminals from the community, to aid the capture of criminals, and to make contumacy more difficult.

Despite the apparent simplicity of statute norms, they constitute a notoriously difficult source to interpret. The criminal records from Reggio add some dimension to the problem, revealing that these laws were enforced, although such cases appear with great infrequency. When those who aided the banniti were brought to trial, they were punished, sometimes severely. Encouraging an accused person to attempt an escape could also result in criminal charges. In a 1397 trial, two men, Petrus and Johannes, stood accused of helping Antonius Ciessi, a shoemaker accused of theft, flee the city. The charge against them stated that the defendants knew that Antonius “had been and was denounced and impugned for a certain theft … and [knowing] that the … Lords Podestà and Vicar were interested [in the case] and intended to cause him to be captured, the same Petrus and Johannes exhorted the same Antonius, and persuaded him that he should take flight from the city of Reggio, lest he come to the gallows of the said Lord Podestà.”Footnote ³⁵ The charge alleged that Petrus and Johannes gave Antonius “help, counsel and favor” and accompanied him as he fled the city. In this case, one defendant was absolved while the other received a relatively light fine of ten pounds. The key issue was whether the citation had already been publicly made.

Assisting those who were already placed under criminal ban, however, could have more serious consequences. In 1400, Andriolus de Cremona, a tavern-keeper, was executed for providing assistance to men banned for life from the commune, receiving them in his home and giving them hospitality.Footnote ³⁶ This case also demonstrates that the penalty in the 1411 statutes was in force before that redaction, as the 1392 and 1335 redactions institute pecuniary penalties, but here the judge was allowed to use his discretion to determine the penalty for harboring fugitives.

The public reading of the charges, the requirement of the presence of neighbors to witness the citations, and finally the public proclamation of ban, made the community aware first of the alleged crime and second of the court's jurisdiction and power to penalize crime. As Pazzaglini observed in his study of the criminal ban at Siena, the criminal ban developed as a weapon against contumacy, which became more and more widespread as populations and crime rates outstripped policing resources.Footnote ³⁷ The commune, lacking sufficient policing power to compel compliance with its summons, relied on community involvement in catching and detaining banniti, which was often not forthcoming. This was an old problem, widespread in the Bolognese contado in the thirteenth centuryFootnote ³⁸ and clearly still at issue in Reggio.

For those accused of a felony that did not carry a corporal sentence, and who had some means to settle a fine, answering the summons had benefits. At Reggio, fines ordered in convictions were often not the fines that convicted persons paid. The condemnation records are filled with payments accepted and charges canceled where the amount paid was ultimately less than the amount penalized.Footnote ³⁹ Condemnation records show that people often paid 25 percent less than their condemnation to have their charges cancelled. This was a common practice; at Bologna, condemnation records from this period also show that sentences were mitigated by a quarter if defendants confessed, and by another quarter if the accused entered into a peace agreement with the victim, and could be mitigated yet again if the defendants could prove their poverty.

But those charged with major felonies had good reason to avoid appearance, considering the high condemnation rates of the court. Defendants charged with arson, for example, were almost never acquitted, and were sometimes sentenced to death by burning. Those who enjoyed the protection of powerful lords and those who had little to lose (particularly vagabonds) were particularly likely to avoid response in court. Personal responses to citations were, then as now, the preferred responses of those with strong interests in the community, and of course, those who were captured and compelled to appear.

Contumacy and Conviction

Contumacy had potentially severe consequences because medieval lawyers equated contumacy with confession, and therefore contumacy quickly led to conviction. This practice of convicting absent defendants did not originate from the ius commune and in fact, it was flatly prohibited in the Digest: “… absent persons should not be condemned; for the argument of justice does not permit of a person's being condemned without his case being heard.”Footnote ⁴⁰ However, conviction in absentia was widely allowed by municipal law codes, and again contrary to Roman law, medieval statutory law even allowed the imposition of a death sentence in absentia.Footnote ⁴¹ At Bologna, books of bans from this period show defendants frequently sentenced to death in absentia for major felonies, including murder and theft. Conviction in absentia for a capital crime was problematic, because in some areas, this meant that the contumacious and subsequently banned defendant, if captured, could be led immediately to punishment without ever standing trial. This gave pause to many jurists. Baldus, for example, believed that the ban could result in an interlocutory sentence but not a definitive one, and would have disallowed provisions like those at Bologna which allowed a captured murderer to be led immediately to execution. As Baldus wrote, “The penalty of death cannot be inflicted from contumacy alone, nor is condemnation to death valid by the ius commune, but on this point the captured man can defend himself.”Footnote ⁴² Yet even so, in many cities, statutes decreed exactly this treatment.

The statutes of Reggio Emilia maintain that one who is cited to appear and does not come must be considered as one who confessed, and conviction happened quickly for contumacious felons.Footnote ⁴³ If the accused did not respond to the summons to answer in court, the criminal judge was obligated to place that person under ban within a month.Footnote ⁴⁴ The accused was to be convicted “just as though he confessed and was convicted of the crime for which he was blamed.”Footnote ⁴⁵ This was a common legal fiction; statutes from Ravenna also treat a contumacious defendant as a confessed felon,Footnote ⁴⁶ as did Florentine law.Footnote ⁴⁷ Bologna maintained a similar practice. Most contumacious felons were then placed under a bannum pro maleficio, a criminal ban.

Although ancient Roman law had an institution similar to the medieval bannum pro maleficio in the Republican interdicere aqua et igni, which allowed property confiscation and outlaw status for contumacious criminals,Footnote ⁴⁸ this institution disappeared from criminal procedure during the principiate and was not part of the medieval ius commune.Footnote ⁴⁹ The practice of convicting and banning contumacious felons was a Germanic one, therefore when late medieval jurists commented on the criminal ban, they had no clear categories in Roman law to use as guides.Footnote ⁵⁰ Whereas there was some difference of opinion among jurists over whether contumacy itself was a crime, municipal statutes tended to consider it as such, holding it as a wrongdoing that aggravated the penalty for the original crime.Footnote ⁵¹ The legal status of the banniti pro maleficio developed, albeit unsystematically, in municipal statutes.

The Ilegal Status of Contumacious Felons

In order to explore the functionality of contumacy in the medieval courts, it is necessary to consider the legal status a felon received for his or her contumacy. But defining the status of a banned felon is complex. In the preface to his famous tract on the criminal ban, Nellus da San Gimignano justified his detailed treatment of the subject by painting a picture of the confusion surrounding the bannum pro maleficio

Once placed under ban, the legal status of the defendant changed profoundly, but the nature of that change had local variation and was not always clearly defined. The questions that arose concerning the legal status of banniti had important consequences not only for the people under ban, but also for their families, their creditors, and their communities.

The most complete treatment of the ban comes from the work of Nellus, himself a Florentine jurist and teacher of law who considered the criminal ban through a lengthy discussion based on the Florentine statutes.Footnote ⁵³ His Tractatus banniti was intended as a textbook or guide for judges dealing with this persistent problem.Footnote ⁵⁴ Of medieval tracts on the ban, the work of Nellus is the most exhaustive, comprising some forty-nine folios in the Tractatus Universi Iuris.Footnote ⁵⁵

Discussions of the status of bannitus were complicated by the lack of clear corresponding categories in the Roman law, and Nellus was not the first to recognize the need for cognizant discussion and to attempt explication. Medieval lawyers often solved complex problems by reduction to Roman law categories, and jurists of the caliber of Bartolus da Saxoferrato and Jacobus de Arena wrote tracts on the criminal ban in which they sought to understand and frame the practice in the terms and categories of Roman law. But this was problematic. Roman law dealt with contumacy largely as an issue of the magistrate's ability to exert his authority, and it had no clear antecedent to the bannum pro maleficio. In Roman law, the judge has inherent authority to enforce their summons and their judgments.Footnote ⁵⁶ This enforcement, in the case of those who do not appear, was to be a fine imposed by the judge, not a territorial restriction.Footnote ⁵⁷

Roman law used territorial restrictions as punishments, but these were by nature different from the medieval criminal ban. The much-cited description of territorial restriction in Roman law is that of Marcianus, who wrote that “Exile is of three kinds: prohibition from certain determined places, imposed banishment so that [the exile] is forbidden all places except for one undetermined place, or a tie to an island, that is, a relegation to an island.”Footnote ⁵⁸ The significant difference between these territorial restrictions and the bannum pro maleficio was that the Roman territorial restrictions were sentences and were given as punishments for crime. The medieval criminal ban, however, was not itself a sentence – it was a remedy for contumacy. Exile, relegation, or deportation probably served some of the same functions as the medieval criminal ban, acting as a public punishment and a deterrent while separating feuding parties and possibly encouraging compromise. The ban had obvious similarity to exile in its removal of a culprit from a community. The ban could be lifted; it was not generally inherited. But the ban was not a sentence arising from an adjudicated matter, and connection with these categories, no matter how well developed, could not fully describe the ban as found in medieval statute law.

Although the criminal ban was not a sentence, it had elements of punishment. Indeed, some jurists equated the bannum pro maleficio with a sort of fine. The criminal ban itself was, as Pazzaglini observed, “partly … a feature of judicial process and partly of judicial punishment.”Footnote ⁵⁹ This element of punishment arose from the equation of contumacy and confession, an equation strong enough to allow the most serious penalties to be imposed on absent parties. This deviation from Roman norms did not pass unnoted by the jurists, although again, there was no general consensus in juridical thought on this matter. Jurists like Baldus and Placentinus did not think that the death penalty should result from contumacy alone, believing instead that the ban could result in an interlocutory sentence but not a definitive one. As Baldus wrote, “The penalty of death cannot be inflicted from contumacy alone, nor is condemnation to death valid by the ius commune, but on this point the captured man can defend himself.”Footnote ⁶⁰ Essentially, the problem was whether contumacy should result in conviction, as it was not an adjudicated matter, and if so, whether a contumacious felon, once captured, should proceed immediately to punishment without being heard. Yet statute law in many places permitted exactly this, particularly in the case of those condemned to death in absentia. At Bologna, those under ban for murder were to be executed without a defense within three days of their capture.Footnote ⁶¹

Because the criminal ban developed in local codes, generalizations are difficult to make. There was significant local variation in the circumstances of the application of the ban and in the restrictions placed upon banniti, as well as in the terms of their reinstatement. This confusion was greatly magnified by a lack of specificity in terminology. There were many types of ban, not all of them criminal. Nellus' tract treats those banned pro maleficio, but, as he explained, “plures esse species bannitorum, hoc nomine generaliter assumpto...”Footnote ⁶² The category of “banniti” was immense, encompassing persons banned for all manner of reasons—debt, political reasons, even contagion, as well as crime—yet the term was used freely and sometimes without clarification. Clarification of the legal status of persons banned pro maleficio for contumacy was the subject of Nellus' work, most of which is devoted to understanding exactly what rights a banned person retains and what rights he or she loses as a result of the bannum pro maleficio.

The relationship between banned persons and their cities as well as their families was the central difficulty of determining their status. Are banniti pro maleficio citizens? If they are, do they have any rights? If they do not have rights, do they still bear obligations? Banniti were sometimes compared to others suffering diminished legal capabilities: Jacobus de Arena, discussing the problem of the banned person's power inside a family, ultimately used Roman law, specifically the Codex, to demonstrate that a curator should be given to the children, just as in cases where the parents were taken captive.Footnote ⁶³ Bartolus, asked whether a banned person retains citizenship, declared that if the person suffers a ban which allows them to be assaulted with impunity, then they are as an enemy of their own city (dicitur hostis suae civitatis).Footnote ⁶⁴

Nellus' answer illustrated the problem with a disputation of the jurist Ugolinus de Fontana Parmensis.Footnote ⁶⁵ A certain citizen of Milan was banned from Milan, and went to live in the city of Vercellis, but while he was living there, another man burned his house down. In Vercellis, a statute decreed that anyone offending a Milanese citizen should be punished in the amount of a hundred pounds. The question to Ugolinus was whether it should then be said that the arsonist had offended a Milanese citizen. Ugolinus decided that the banned person could not benefit from the statute, because it was not enough that his origins were Milanese – he must also be in good standing and not under interdict. It was a difficult problem because it was related to the much bigger question of banniti and their status as citizens: what exactly were the rights and obligations of the bannitus? Nellus' answer provided a guideline: a banned person remained a citizen with all the obligations of citizenship, but he or she could enjoy none of its protections.Footnote ⁶⁶

But even inside the category of banniti pro maleficio, not all felons were equal. The bannum pro maleficio did not necessarily include property confiscation. In the Speculum iuris, Durandus allowed severe limitations of rights not in cases of levis causa but only gravis,Footnote ⁶⁷ a distinction Nellus adopted.Footnote ⁶⁸ Johannes Andreae's gloss on Durandus' work makes clear that confiscation cannot be understood as part of the ban, even in a criminal case; it must be expressed.Footnote ⁶⁹ Nellus also reiterated that confiscation is part of the ban only if this is specifically mentioned in the ban.Footnote ⁷⁰ Felonies that did not merit a capital penalty usually resulted in a pecuniary ban which could be lifted if the felon paid the penalty (and this lighter form of the criminal ban is still referred to as a bannum pro maleficio).Footnote ⁷¹ But the ban for some major felonies that carried a corporal penalty could be further designated as in avere, meaning that their property was indefensible, or in the worst cases in persona, meaning their person could be assaulted with impunity. Some people who received the status of bannitus pro maleficio, then, lost civil privileges and owed a fine but could change their status by appearance before the judge and payment of the fine.Footnote ⁷² Others were subject to property confiscation and outlawry.

Like the statutes of Reggio, the statutes of Florence that Nellus discussed allowed some banniti pro maleficio to be offended in both goods and person. These laws posed difficult questions for the jurist. If a person can be attacked with impunity, even murdered, are the statutes that allow such a thing not by nature contrary to justice? Are these attacks or killings justified in all circumstances? How can property be confiscated while legitimate creditors are protected? Is a pecuniary ban the same thing as a fine? As important as these questions were, it is surprising to see the vagueness with which they are left in statute law. The ius commune did not offer clear guidelines for the criminal ban; if the institution developed largely in municipal codes, why did subsequent redactions not take care to clearly delineate the status, rights, and restrictions of banniti, particularly given the scale of the problem? Perhaps these questions were left deliberately vague. No judge or podestà wanted to risk problems in their end-of-term syndication by failing to follow procedure. The vagueness of the statutes allowed flexibility, perhaps coinciding with a general trend to allow increased arbitrium or judicial discretion in sentencing at the end of the fourteenth century.

But if this vagueness made the ban flexible from the government's perspective, how did it affect the functionality of the ban? That is to say, if even Nellus da San Gimignano found this confusing, how could a person living in the community understand the appropriate treatment of one who was banned? Members of the community were obligated to aid in the capture of banniti, but some banniti could be assaulted, or even murdered with impunity, and others could not. Some lost their property, while others retained it. And it must be remembered that this concerns only the banniti pro maleficio – others were banned for debt or other reasons, and their status was not the same as that of one under criminal ban. The communication of the specific circumstances of the banniti must have circulated by means of the public crying of the ban, the crida. Like those proclamations that made up the procedure of citation, the crying of the ban must have communicated the extent of privileges lost by the felon, and this is surely why Nellus allowed confiscation only if specifically delineated in the ban. These cride also imposed obligations on those hearing them to assist in the detention of those named.

The most potentially severe consequences of contumacy and the resulting criminal ban were property confiscation and outlawry. Both confiscation and outlawry were intended as deterrents. Nellus defended statutes allowing outlaws to be killed with impunity because these statutes served the public interest, “so that men will be frightened by wrongdoing, knowing that afterwards, they can be killed with impunity, and so that crimes will not remain unpunished…”Footnote ⁷³ Whether the criminal ban was effective as a deterrent is another question that the sources in examination here cannot answer. That contumacy and the ban could be the objects of some rudimentary strategies on the part of the defendants and their families is reflective of their integration into closely knit communities. The criminal ban developed and endured as an institution because of its particular blend of severity and flexibility.

The Confiscation of Goods and the Criminal Ban

Property confiscation was a real possibility for those who failed to appear in criminal court to answer accusations of some major felonies. Understanding how the confiscation of property worked in the bannum pro maleficio sheds light on the way that this institution was integrated into the life of medieval cities. Necessary protections for those involved in business dealings with the defendant left large loopholes that could be exploited in fraudulent claims on the defendants' property. Nellus dealt at length with the questions of property and rights that faced the contumacious defendant. Should a woman, if banned, lose her dowry? Do banniti lose their rights to make wills? If a ban is pecuniary, can the banned criminal claim bankruptcy? Ultimately, the rule of thumb was Nellus' provision that banniti retain the obligations but lose the rights of citizenship, yet these kinds of property questions continued to be the subjects of learned consilia. This section will consider what happened to the property of a contumacious felon when an order of property confiscation accompanied the ban.

The requirement, discussed previously, that the property confiscation be specifically included in the ban meant that it would have been publicly announced when the bans were read. Although these citations served as public statement of the jurisdiction and authority of the criminal court, they must surely also have served to set the creditors of the felon on notice that claims would need to be prepared and filed on the property. Protection of creditors is perhaps the most important characteristic of this medieval institution, and it made confiscation an effective but pragmatic penalty. At Reggio, persons placed under ban for major felonies could have their goods seized and confiscated by the Visconti court in Milan. The threat of financial ruin, not just for the defendant but for his or her family as well, was significant, and goods of contumacious felons were vulnerable. But in practice the process of confiscation was a long one, with options for protecting the goods of the accused. The procedure was designed to punish the wrongdoer while also respecting the rights of legitimate creditors on those goods, including first and foremost the family of the culprit. These competing concerns meant that the potential for fraud was large, and it is clear that the lords of Milan were very interested in creating a process that protected their rights of confiscation.

Whereas pecuniary punishments were paid into the coffers of the city, confiscated property devolved to the camera of the signori, the Visconti of Milan. The procedure for confiscation of goods was clarified in 1387 by Regina della Scala, wife of Barnabò Visconti and governor of Reggio Emilia. Recognizing the potential for fraud and the necessity of careful procedure in dealing with confiscated property, Regina issued in 1387 a general edict to subject territories giving directions on procedures to be followed in assessing the goods of a contumacious felon.Footnote ⁷⁴

This decree treats the goods of those banned for major felonies for which the death penalty would be exacted: crimes such as homicide, assassination, robbery, arson, or the abduction of a virgin woman. The document tells us that the goods of the felon should be confiscated by the court on the day that the crime was committed. However the document also ensures the preservation of the rights of legitimate claims made by kin. It is necessary, the edict says, to avoid fraud, and to this end, a procedure for dealing with the goods of confiscated felons is set forth. The podestà or rector of the city or land in whose district the crime was committed was bound, after receiving notice of the crime, to send his collector or the foreign notary of the criminal court “to describe the goods of the person impugned for the aforementioned crime…”Footnote ⁷⁵ The goods were inventoried by the notary, who included all the movable and immovable property of the accused, and then the list was sent for approval to the anziani or city council. The podestà or rector was obligated within two days of the crime to see that the description was made. That description within eight days was sent to Milan to the treasury officials.

This means that the confiscation process was supposed to begin immediately on the day the crime was discovered (a die commissi criminis intelligatur). Therefore the confiscation process began before the time required in the citation process had lapsed and thus before the pronouncement of the ban – that is to say, the confiscation process began before the defendant was officially placed under ban. It is interesting to consider this beside the example of the 1397 trial discussed previously, where sentences for aiding a contumacious felon hinged on whether the citation process had been made public. In the 1397 trial, at issue was whether the men aiding the fleeing culprit had heard that the defendant was cited to appear before the criminal judge, and the fact that the citation had not been publicized greatly alleviated the weight of their offense. But this technical detail appears less important in the question of confiscation, where the initial flight of the culprit created a presumption of guilt and grounds for conviction.

This early seizure of goods and property was necessary in order to prevent fraud. The process of confiscation was complex, and determining exactly what property belonged to the person in question could prove a challenge to officials even before creditors began to make their claims. One 1393 case where the defendant was charged with multiple felonies includes an assessment of the contumacious man's property. The record reads: “The things written here are the goods found and described in the home inhabited by Symon Forzani, father of Geminianus Forzani, blamed for a homicide … Symon says the said goods are his, and that his son has not stayed with him for eight years …”Footnote ⁷⁶ Symon had a claim to keep the goods unless witnesses could prove the property belonged to his son. Determining where the property of the accused was, and proving to whom it belonged, was a difficult matter. It was also an opportunity for families to hide property from the court's estimators and avoid confiscation.

Once the list of property was made and the description approved, the podestà or rector issued a public directive that anyone claiming to be a creditor of the condemned was bound within one month to the day the proclamation was made to appear before the podestà or rector and produce in writing everything that she or he claimed to be owed by the condemned man. If the potential creditor lived outside the jurisdiction, he or she was allowed three months to make the claim. Creditors living outside the territory of Milan had six months to make their claim. The period of six months was extended to foreign pupils, widows, and women who claimed rights to the goods. When the set term had elapsed, no further extensions were to be granted for claims. The process is similar to the process of estimation undertaken in the case of an absent person sued in a civil matter.Footnote ⁷⁷

The evaluation of claims made upon the goods of the contumacious felon was probably one of the most vulnerable moments in the estimation process for fraud. When claims were made on the goods of the convicted, the decree required that advocates representing the lords of Milan should be present to defend the rights of the signori. In this system, if the accused had any financial acumen at all, he or she could take measures to protect their assets. Creditors could make claims on confiscated property, and the first creditors were the families of the accused. A petition, also from 1393, concerns the property of Guido and Cresembene de Albinea, who were banned from the commune. Lucia, wife of the banned Guido de Albinea, successfully petitioned the court for the restitution of her dowry.Footnote ⁷⁸ The dowry could provide an extremely effective way to elude property confiscation. Women could shelter their family estate by laying claim to their dowry, as Lucia did, because women stood as legitimate creditors for this property.Footnote ⁷⁹ As Smail observed at Marseille, “The more men were indebted to wives, daughters, and daughters-in-law, the more secure they were from criminal prosecution.”Footnote ⁸⁰ One might extend this observation to all the members of the family or even to other kin or friends who could claim to be creditors. The mother of Guido and Cresembene was granted seventy florins, part of her dowry that had been assigned to her sons' use. Lucia's sons as well were granted the “first third” of the goods, after Lucia's dowry was subtracted.

Children had legitimate claims to their fathers' estates. Law governing the claims and responsibilities of children for their fathers' property and debts was complex, but minor children were owed sustenance. In Genoa, statutes stated directly that children should not suffer because of their father's absence.Footnote ⁸¹ Direct heirs were likewise owed their portion. The 1411 redaction of the statutes at Reggio specifically protected the rights of heirs under the rubric, “Quod ius creditorum et descendencium sit salvum.”Footnote ⁸² Officials had to strike a careful balance between allowing those with legitimate claims (and dependencies) upon the property to receive their due, and avoiding fraud constructed using the guise of legitimate claims.

In recognizing these claims, it might be tempting at first to assume that the government was acting to aid dispute resolution or to ease the situation of the near kin of the felon, and perhaps de facto it was. But the protection of the family's interest in the patrimony has a complex juridical history, and these laws were not constructed particularly for this situation, but rather were applications of larger principles. In statute law, the idea of the pars filii held currency. This idea that the son had interest in the patrimony not just upon the death of the father, but while he was still living, did not have place in Roman law but it was very much part of the medieval ius proprium. Heirs of estates also had some minimum due in the form of the legitima, their minimum provision.Footnote ⁸³ The legitima could not be denied to a direct heir by testament; their rights to this property overrode even the strength of a will.Footnote ⁸⁴ Of course, the son's interest in the patrimony could have adverse effects for the defendant if the condemned person were the son and not the father; in this case, the son's part of the patrimony could be liable for confiscation as payment of the condemnation in a criminal matter. This proposition that the son had claim on the goods of a living father beyond the peculium was debated.Footnote ⁸⁵ However, in Bologna as in other cities, the father's goods could be obligated up to the pars filii.Footnote ⁸⁶

Only after the claims of the family were satisfied were claims of creditors heard. The portion of the goods that devolved to the camera of the Visconti was that portion that remained after all these creditors had been satisfied. In spite of all the care taken to provide against fraud, no public instrument was required to prove a debt. To prove legitimacy as a creditor required only the oath of two witnesses of good fama et opinio. The burden of proof in confiscation fell to the government, which had to honor creditors' claims and had to sue if fraud was suspected. Officials had to prove that goods belonged to the banniti in order to confiscate them, and even confiscation did not definitively remove the property from the families' use. There was considerable room for negotiation and strategy to protect the goods of a bannitus.

Contumacy, even for major crimes which carried a penalty of property confiscation, was surely no guarantee of fiscal ruin. At Reggio, the commune counted itself last, seizing property but then hearing petitions against that property by everyone from the wife and children to the fish vendor and butcher, and paying out sums accordingly. All who could prove themselves to be legitimate creditors of the confiscated estate could make successful claims upon it. In spite of the harshness of the provisions against fraud and the strong language of the statutes, no public instrument was required to prove a claim, and families stood as first creditors. The rights of creditors, particularly the family of the accused, took precedence over the collection of a fine or the seizure of assets. This was part of a long legal tradition that gave special place to the patrimony.

This is not to say that the damage caused by confiscation was negligible. Fines were still collected. Old debts that might have been postponed, had the debtor not been banned, were now collected. Property that could not be claimed was lost. A son's conviction could lead to claims on the estate of his family, though this was limited. Confiscation could certainly be expensive, but it was not necessarily ruinous. This may have encouraged some defendants to take this path rather than face formal justice, or, perhaps more fearsome, retribution or vendetta.

Outlawry: the Bannum in Persona

The most potentially severe consequence of contumacy was outlawry. Removed from any protection of the law, banniti could be killed with impunity. There were inherent difficulties with this proposition, not the least of which was that it allowed and sanctioned murder. Jacobus de Arena disallowed the practice of killing the banned persons with impunity, in large part because he related the criminal ban to the Roman practices of relegatio and deportatio.Footnote ⁸⁷ Gandinus allowed that persons under ban could only be killed with impunity if they were banned for a serious offense. But importantly Gandinus recognized that a statute allowing the murder of banned people with impunity might be strictly interpreted to “permit the slaying of any bannitus condemned for a crime, including a noncapital offense, on account of his contumacy to the court.”Footnote ⁸⁸ Gandinus' concern predicts Nellus' later comments on the difficulties of terminology and the lack of a clear legal status for those banned pro maleficio.

Nellus, however, began his discussion of the consequences of people banned in persona with his unequivocal support for the validity of statutes that allowed this practice: “First therefore I seek whether a statute which provides that a person under criminal ban can be killed with impunity should be considered valid. This question is well known and well worn, so therefore I will not devote myself to it. I conclude that since such a statute is made for the public utility, so that men will be frightened by wrongdoing, knowing that afterwards, they can be killed with impunity, and so that crimes will not remain unpunished, … then it should be said that the statute is valid.”Footnote ⁸⁹ In his support, Nellus here references the Digest as well as Innocent III's famous decretal Ut fame. The murder of a banned person served the public interest, and this was an important part of the philosophy of late medieval criminal justice, having been used also as a justification for the widespread adoption of inquisitorial procedure in the criminal courts.Footnote ⁹⁰ It served the function of a deterrent, and it was a step against the widespread problem of unpunished crime. This question of whether it was legitimate to allow the murder of a person banned pro maleficio was, as Nellus stated, well-worn (trita): he drew from Jacobus de Arena, Johannes Andreae, and Bartolus, to name only a few, and indeed the issue was also dealt with at length in consilia of famous jurists such as Baldus and Angelus de Ubaldi.Footnote ⁹¹

Like the question of property confiscation, the question of outlawing a contumacious felon carried with it a maze of legal complexities. The idea that a murder would go unpunished, or that a person could be assaulted or even killed with impunity, seemed to run contrary to fundamental norms of justice, and the question of when this was permissible was a sticky juridical point. Again, local variation marks the law. The statutes of Perugia allowed bandits to be killed for offenses including assault with bloodshed; other cities such as Vercellis allowed death only in cases of capital crimes.Footnote ⁹² Concerned for public order, Venice would later experiment with laws that allowed outlaws to kill each other in return for remission of their ban, though this had dubious results.Footnote ⁹³ Reggio allowed banniti to be killed with impunity in the case of certain major felonies, all of which were capital; however, not all capital crimes were included in the list, only homicide, arson, robbery, theft, treason, and kidnapping.Footnote ⁹⁴ Statutes appeared in the 1335, 1392, and 1411 redactions forbidding the podestà to make any inquiry into the murders of people banned for those crimes, and these laws were retroactive, requiring that the podestà cancel penalties for anyone who had been banned or fined for an offense against a bannitus. By 1411, the statute included the caveat that those who had peace agreements with banniti could not offend them with impunity, and specified that the property but not the person of those banned for crimes that did not carry a corporal punishment could be offended.Footnote ⁹⁵

The criminal records show that these laws were enforced, and the legal status of a victim as bannitus pro maleficio was an allowable and effective exception to a charge of murder. We find an example of one such individual who is present in no less than five criminal trials, always contumacious, and living his life under ban from the court at Reggio. Roffellus, son of Mathiolius de Roncolo, was charged repeatedly with crimes such as murder, theft, and assault, before his own life ended at the hands of another man in 1388. The first surviving trial in which Roffellus was accused, dates from October 31, 1385. Charged with committing a theft at night (crimes committed at night carried severe penalties), Roffellus was contumacious. Ultimately he was condemned to pay fifty R.L., and “if he does not pay this money, let his feet be cut off.”Footnote ⁹⁶ Almost exactly a year later, Roffellus was cited in court again, this time with seven co-defendants on the charge of murder. Roffellus and his colleagues, along with others “about whose names it is better if we remain silent,” made an armed attack and murdered two men, and this time, Roffellus was placed under a ban of a thousand imperial pounds, and was sentenced to death by decapitation and the confiscation of all his goods.Footnote ⁹⁷

Placed under two criminal bans, assumed guilty of theft and of murder, Roffellus still remained in the territory of Reggio. We meet him yet again in the criminal records, this time in February of 1387. Roffellus was clearly embroiled in infighting among the powerful Fogliani family, and this time, the victim of the assault was “the noble knight, Lord Nicholaus de Lapiagna de Fogliano, resident in the castle of Rondinara” who had been the denouncer in Roffellus' first murder case. Roffellus and his socii made an armed attack against him. Some of Roffellus' accomplices appeared in court and denied the charges (the records do not indicate whether their appearance was voluntary); Roffellus himself remained contumacious.

We meet Roffellus in the criminal court records one final time, in 1388, this time as the victim. On April 6, 1388, a certain Christoforus was accused of murdering Roffellus. On the last day of April, Antonius de Manzano, “notary, procurator, … and dear friend and defender of Christoforus,”Footnote ⁹⁸ appeared before the judge to answer the charges on Christoforus' behalf. He protested to the judge that the prosecution could not continue, because Roffellus was under ban and his name appeared in the books of bans. Antonius produced those documents before the court and also produced the statute that forbade prosecution of the murderer of a person banned for homicide. Twelve days later, the judge canceled the proceedings against Christoforus because the victim was under ban.Footnote ⁹⁹

Roffellus' story as documented in the criminal records illustrates the function of the citation process and also shows that the criminal ban did not necessarily force malefactors to flee the area of the court's jurisdiction, particularly when the criminal was in the protection or service of a powerful lord. Roffellus' life ended with his murder unpunished by law; his killer went free because of Roffellus' status as a bannitus. To consider the criminal ban only in light of statute norms would grossly simplify the reality of jurisdictions and ideas of power in late medieval cities. Law enforcement certainly was not a straightforward implementation of statute law. It was a complex balancing act of political agendas and power.

The permissibility of the murder of a bannitus was only the beginning of the questions surrounding the bannum pro maleficio in persona. Like property confiscation, outlawry raised a host of complex problems, some of which Nellus attempted to field: can a son kill a banned father? Is it necessary that the killer be aware of the ban to make the murder legal? What if the murdered person is a pregnant woman? And there was an obvious moral question as well: even if the statutes permit the killing of a bannitus, does the one killing him not sin in foro conscientiae?

The answer to this last question was obviously more theological than legal, but Nellus treated it anyway. The answer depends on the intention of the killer. If the murder is done with the authority of law, it is not a sin but is rather meritorious behavior, similar to a judge sentencing a malefactor, or to an executioner. It is not a sin if the killer is moved to the act in the interest of public utility. If, on the other hand, the killer is motivated by “malice, and a delight in shedding human blood,” then the sin is mortal.Footnote ¹⁰⁰ But even in this case, although a mortal sin, the act remains legal.

The function of the statute allowing the murder of banniti was public utility. Public utility was the basis of inquisitorial procedure, it was the backbone of the laws of contumacy, and it alleviated the moral consequences of killing.

Contumacy and the Return from Ban

If contumacy did not necessitate a financial disaster, it also did not necessarily result in a permanent criminal ban. Banned felons could return if they paid the sum of their ban, though this was unlikely in the case of murder and other major felonies that carried an amount of one thousand pounds. Other more realistic opportunities for reintegration came in the form of general edicts that lifted the ban in special circumstances, and in the case of negotiation for return, which involved agreements with the victim or the victim's family as well as formal supplication to the lords of Milan.

In times of emergency, the ban could be generally lifted in return for military service. In 1373, for example, a decree lifted the ban for anyone at Reggio banned for any crime including murder, excepting only treason, counterfeiting, or rebellion. The person must have been under ban for a year and must have made peace with the heirs and friends of the dead (heredibus et amicis defunctorum). The term of service owed depended upon the reason for the ban, and this term of service could be halved if the bannitus brought another person into service with him.Footnote ¹⁰¹

Negotiation for return was also a distinct possibility for the contumacious felon. The potential for a capital sentence was a good incentive to flee, and when defendants were contumacious on a murder charge, they were placed under an impossible ban of one thousand pounds. But after a year, culprits could attempt to negotiate their return to the commune. This ability to negotiate a return, like so much about the criminal ban, had a great deal of local variation. At Bergamo, for example, factors of the crime determined whether a convicted person was eligible for recall from a homicide ban. Only those crimes committed without premeditation were eligible for the relaxation of the ban.Footnote ¹⁰² At Bologna, a recall for homicide came with a fine, but that fine could be delayed or spread over time so that the culprit paid a very small amount per annum, sometimes around twenty solidi.Footnote ¹⁰³ Indeed, at Bologna, rules regarding the ban evolved over the course of the thirteenth century to allow more possibilities for reintegration.Footnote ¹⁰⁴ At Reggio, negotiation involved a supplication to the lords of Milan to have the ban lifted and the sentence canceled, and it required that the murderer make a formal, binding peace agreement with the victim's family. A mandatory one-year period had to elapse before the guilty person could enter peace negotiations with the wronged family. This distance was important because it allowed a “cooling-off” period after which the aggressor and the victim or victim's family might choose to enter into a peace agreement. Clearly this period of separation could serve to diminish the danger of immediate retaliation by allowing time for tempers to cool, and equally importantly, providing time for parties to negotiate informally whatever terms were necessary to bring peace. Families could then enter into instrumenta pacis, an agreement for two parties to maintain perpetual peace.

Peace agreements were a common feature of late medieval justice in northern Italy and also in Marseille.Footnote ¹⁰⁵ The use of these agreements in the criminal process and their efficacy to end trials or to mitigate penalties varied a great deal by location. In Florence, transaction of a peace agreement within fifteen days from the crime abrogated a trial.Footnote ¹⁰⁶ At Perugia, peace agreements were effective only in the case of certain crimes, but they could end a criminal prosecution. If a peace agreement was concluded within eight days, the podestà and the city captain could not proceed to sentencing except in the cases of the most extreme crimes, including murder, the breaking of a truce, and assaults resulting in permanent blindness or debilitation of a limb.Footnote ¹⁰⁷At Reggio, peace agreements did not end criminal prosecutions, but they did mitigate penalties by 25 percent. At Milan, a peace agreement was necessary for a person to return from a ban imposed for a violent offense,Footnote ¹⁰⁸ and this appears to be the case also at Reggio. In homicide cases, these agreements were necessarily transacted long after the crime was committed, because such an agreement could only be concluded after the culprit had been banned from the commune for at least a year. Condemnation records at Reggio occasionally note the cancellation of a homicide ban, giving as one of many circumstances of its cancellation the pax.

As Massimo Vallerani observed at Perugia, the instrumentum pacis provided a way for people to return from ban and it limited new sources of vendetta.Footnote ¹⁰⁹ Contumacy and the subsequent criminal ban aided public order by removing the accused from the family of the victim, thus limiting opportunities for vendetta. The peace agreement was not an expression of private negotiation inside a public system; it was an important part of the criminal process and “an adjunct to judicial sentence and ban.”Footnote ¹¹⁰ For felonies that carried a corporal sentence, the first ingredient for the creation of peace agreements and the reintegration of the felon into the community was contumacy.

It is unlikely that any government would wish to reintegrate career criminals, particularly highwaymen and assassins. Peace concords were most often transacted between neighbors, not strangers,Footnote ¹¹¹ and the requirement for a peace agreement probably had as much to do with excluding these types of criminals from reintegration as it had with encouraging negotiations among disputing parties. Whereas the criminal ban could be used for conflict resolution, this was not its primary function. The ban helped the commune enlist the help of the community in law enforcement.