. Fifth-century Gaul saw the opposition between the Roman and the barbarian, especially Frankish, criminal-law systems. In Roman society, criminal justice was the affair of the state and the responsible individual. The state prosecuted individuals accused of crimes against the state and public order (treason, sacrilege) or against property (theft) and people (murder, assault). The means of proof was rational (largely testimony), and punishment included execution, imprisonment, banishment, and corporal punishment. Criminal justice in the Frankish kingdom, on the other hand, was conceived of much as civil justice, as a matter in which two families confronted one another. The traditional ven-geance sought (faida) was replaced with monetary compensation (wergeld) detailed in exhaustive lists. The procedure was accusatory, and proofs invoked were co-oaths (families and neighbors swearing to the honor of the accused) and ordeals.
The feudal period saw the rise of seigneurial and ecclesiastical jurisdiction, in criminal as well as civil matters. The high and late Middle Ages saw three fundamental changes: the development of municipal courts, the growth of royal justice, which tended to overshadow the old seigneurial jurisdictions, and the reintroduction of Roman principles of justice, especially of procedure, at first through the church and canon law, then also through royal justice and some lower courts, especially in towns. With the strengthening of the notion of the state, inquisitory procedure began to supplement and then to replace the old accusatory procedure. Testimony and confession, both sometimes induced by torture, replaced co-oaths and ordeals as proof, and the practice of appeal was introduced. Individual responsibility tended to replace collective responsibility, and the intention of the accused became as important a factor as the facts of the crime.
With the growth of public authority, persons accused of crimes against religion (sacrilege, witchcraft, blasphemy), against public authority (treason, counterfeiting), and against public order (procuring, concubinage, gaming, sodomy) were prosecuted, as well as those having committed crimes against people (homicide) and property (theft).
The principal forms of capital punishment were decapitation, hanging (especially for theft), and burning (for heresy, witchcraft, and sodomy). Corporal punishment was reintroduced; the most common mutilation was the cutting off of ears, normally for theft. Whipping was a common punishment, as was being exposed at the pillory for several days. Banishment was frequent; imprisonment, however, was rarely used as punishment. Confiscation of goods often accompanied other punishments, especially when the accused was noble or in cases of heresy, usury, or suicide. Fines were common, and the sum varied greatly; sixty sous, the standard fine in Frankish times, remained the most common.
Leah L.Otis-Cour
Gonthier, Nicole. Délinquence, justice et société en Lyonnais (fin XIIIe-début XVIe siècles). Thesis. Lyon (Lettres), 1988.
Laingui, André, and Arlette Lebigre. Histoire du droit pénal. 2 vols. Paris: Cujas, 1979–80.
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