premeditated murder), using compurgation or other forms of the ordeal
than the duel (though these did require the assistance of the clergy to
invoke God’s judgment); and the special sanctions of banishment and
destruction of the offenders’ houses could be deployed as effectively as
exacting a limb for a limb. But the magistrates’ chief object was to
reconcile a killer with his victim’s kin and prevent feuds. At Tournai
those who killed and maimed were permitted to return if they made
reparation to the kindreds, and paid £10 and £5 respectively to the
municipality. One suspected of hatred or rancour was to give security
for good behaviour to the provost or be deeemed an enemy of the city
(inimicus civitatis). It was open to the provost and jurats to decide that
a boy who accidentally killed another boy was not answerable.^74 For
killing a house-breaker there was no fine to the commune. Even the
king’s jurisdiction in cases of rape might be modified, to the extent that
townsmen could be empowered to see that the ravisher married the
woman and was reconciled to her kin.^75
Jurisdiction over one type of violent crime was recognized as
especially important to a commune. Beaumanoir instructs the lord of a
town not to allow hatreds to smoulder into affrays (mellées) between
families in the community, even if neither side complains. The citizens
of Rouen were granted ‘all pleas and all affrays within the liberty of
Rouen and within the banlieue of Rouen in which death or maiming
(mehaigniez) or other plea of the sword was not in question, provided
also that they were not prosecuted by wager of battle, and saving the
rights of landlords’.^76 It is difficult to believe that the saving clauses were
always observed in the heat of an urban riot. According to Beaumanoir,
those who inflicted wounds in a brawl should be kept in prison for forty
days until the injured were seen to have recovered, and for that period
it was uncertain whether the case belonged to the hauteor the basse
justicier. Yet the law did not prescribe hanging for one who killed in
chaude mellée, unless he was accused and defeated in battle by the
victim’s kinsman, and parlementruled that jurisdiction over theft and
‘simple killing’ was a necessary part of viaria, the policing of the streets.
In urban conditions, substantive distinctions between crimes began to
replace social distinctions amongst the justices and the judged as deter-
minants of jurisdiction.^77
Justice in the towns 59(^74) Recueil des Actes de Philippe Auguste, i. 269–71 (no. 224, cc. 1–16), 334 (no. 279, c.
11), 567 (no. 473, c. 23); cf. Petit-Dutaillis, Les Communes Françaises, 47 ff., for the high
justice enjoyed by the commune of Tournai.
(^75) Recueil des Actes de Philippe Auguste, iii. 26 (no. 977, c. 20).
(^76) Beaumanoir, Coutumes de Beauvaisis, ii. 269–70 (914, 1523); Recueil des Actes de
Philippe Auguste, ii. 446 (no. 858, c. 50), iii. 24 (no. 977, c. 9), 59 (no. 1000, c. 23); cf. ch.
58 of Le Très Ancien Coutumier: Coutumiers de Normandie, ed. Tardif, 1, i. 49 and 2, ii. 46):
De Mesleesin the Latin text and D’Assautin the French; Les Olim, ii. 317 (xviii).
(^77) Beaumanoir, Coutumes de Beauvaisis, para. 1646 (ii. 312), and cf. para. 823 (i. 428–9);