In a post last year on the subject of the procedure used in 16th century witch trials, I wrote about Flemish lawyer Joost de Damhouder (1507-1581) and his remarkable 1554 treatise Praxis rerum criminalium (Criminal Matters Practice), which was one of the most successful of all treatises on criminal law published in 16th century Europe. That post dealt with Damhouder’s book, which was littered with vivid illustrations depicting crimes and their punishments; it was published at a time when printers were producing a growing number of treatises on specialized topics in the law. Among the authors whose work filled the catalogs of that time, I mentioned an author who was important for his books on criminal law. That author was Hippolytus de Marsiliis (1451-1529). In this post, I want to share something about his books and about the law books of his time.
Hippolytus de Marsiliis was educated at Europe’s most important center of legal study, the University of Bologna. That university had hosted, since the 12th century, the most influential research on the continent both in canon law and in the revival and interpretation of Roman law. These bodies of law were well-developed, highly technical systems of jurisprudence at a time when the laws of European kingdoms and municipalities were frequently much simpler. Their mastery required extensive memorization, detailed study of long, difficult texts, and training in complex strategies of interpretation. This frequently amounted to overtraining from the point of view of managing typical courts of law and their day-to-day affairs–especially in remote locations far from large urban centers. But in the early 16th century, the existence of two distinct tiers of legal personnel was a normal part of civic life–and had been for many generations–one being the beneficiary of extensive scholarly training, the other being trained on the job.
Legal publishing reflected this dichotomy. A book such as the Laienspiegel by Ulrich Tengler, published first in 1509, for instance, presented guidelines for lay practitioners in civil and criminal courts in the Holy Roman Empire in simple enough terms that no university training was needed to follow them. But it also concluded with an entreaty that one should always seek advice from knowledgeable authorities, meaning precisely that class of lawyers who studied the learned law.
The rise of printing put books like the Layenspiegel within the reach of many people who needed practical guidance. But it also created an opportunity for learned lawyers to produce more book-length, subject-specific works that were pitched toward an expert audience. The books that Hippolytus de Marsiliis wrote were of this kind. In a long teaching career (1481-1529) that mainly focused on civil law, he wrote many books. The handful of books he wrote on criminal law grew out of lectures that he delivered between 1510 and 1513 at the University of Bologna on parts of Roman law–specifically subject matter that appears in sections of the Codex and the Digest that deal directly with criminal procedure. These included Lex de raptu virginum (C. 48,8) (on the abduction of women), Lex Cornelia de sicariis et veneficiis (D. 48,8) (on homicide, assault with a deadly weapon, and poisonings), Lex Pompeia de paricidiis (D. 48,9) (on parricide and the punishment for killing close family members), and finally, Lex Cornelia de falsis (C. 9,22) (on fraud). Based on these lectures, he wrote, in the form of commentaries, well-regarded books on these laws in the mode of the medieval Roman law tradition, heavily citing the works of authors such as Baldus De Ubaldi (1327-1400), Alexander de Tartagnis (1424-1477), and Bartolus of Sassoferrato (1313-1357). These commentaries were in print by the mid-1520s, though first editions have not yet been identified for certain. Super lege unica C. de raptu virginum was printed as early as 1521 in Bologna, and there is a possible reference (in Pallotti, below) to a 1517 edition also from that city at the press of Benedetto di Ettore. Another title, Brassea…Commentaria super titulis ff. ad l. cor. de sicar., ad l. pompe. de parrici. et ad l. cor. de falsis, was certainly in print in 1524, but there is also a reference to a 1521 edition of the book from Milan by Giovanni Angelo Scinzenzeler. And finally, Avogadra. Preclarissima commentaria… super titu. c. ad legem corneliam de sicariis, appears in print as early as 1525 (Bologna: Franciscus Garonus).
Two other important works that he wrote on the subject of criminal law and procedure were Tractatus de questionibus, a book about the laws regulating torture, which was printed in Venice in 1512 by Jacopus Borgofranco or possibly in Bologna as early as 1507, and his most well-known book, Averolda, seu Practica causarum criminalium, which was printed as early as 1526 (Venice: Franciscus Baronus). Averolda was, in some ways, closer to a practice manual than the others that he wrote in the same period. Its chapters were arranged, generally speaking, according to the order in which a criminal trial proceeds, so that the first chapter deals with the initiation of an inquisitorial process and later chapters relate to the subsequent phases of the trial. These include rules regarding confession (Averolda, § Postquam), responsibilities of the judge when faced with a guilty plea (Averolda, § Nunc Videndum), the conditions that justify torture (Averolda, § Expedita), and so on. The book is concluded with chapters that add other dimensions to the discussion: one is on trials involving exiles (Banniti), a status similar to outlawry in English law (Averolda, § Aggredior); one is on the use of weapons in criminal acts (Averolda, § Pro Complemento); one is on injuries that result from crimes (Averolda, § Et Quia); and another is on incarceration (Averolda, § Attingam). But the discussion in each chapter is far ranging and touches a wide variety of related topics with heavy attention paid to amplifying and interpreting the sources of Roman and canon law that he was drawing from.
The author hoped that this book would help to professionalize the judiciary, which included people of various levels of education, experience, and, evidently, integrity (Averolda, § Principium, 1). Hippolytus de Marsiliis had the benefit of some experience managing criminal trials and of interacting with practitioners. Although he began teaching at Bologna shortly after receiving his doctorate in utroque iuris in 1480, he occasionally undertook posts in civil government and in the practice of law. He was Vicar General and Syndicator of the Duchy of Milan starting in 1481. He was governor in the Genoese territory of Alberga ten years later. He also held the office of Podestà in the Padua region of Cittadella. Over the last two decades of the century, he also offered legal services in connection to criminal cases (Pallotti).
That experience exposed Hippolytus de Marsiliis to the need to address the training of judicial personnel. Many points in the book raise issues along these lines. Judges should never allow personal prejudice to influence their courtroom practice (Averolda, § Diligenter, 25-27). Judges must scrupulously follow guidelines in the use of torture (e.g., § Expedita, 57). Torture should be inflicted with moderation (§ Expedita, 85). Judges should realize that the threat of torture itself is an act of torture (§ Expedita, 2); that incarceration is a type of torture (§ Diligenter, 11); that death resulting from incarceration is considered death by torture (§ Diligenter, 12). A certain picture of common abuses emerges.
The book became a widely consulted authority over the course of the next several decades, appearing in very many editions. Its stance on torture, that it is a necessary tool, but a powerful one that needs careful regulation, became the norm among learned lawyers in the 16th century. The Law Library of Congress holds editions of the book from 1529 (here depicted), 1551, and 1583.
If you were wondering why the book is called Averolda, it’s because it was dedicated to Altobello Averoldo of Brescia (c. 1468–1531), who was Bishop of Pola (in present-day western Croatia) and three times the governor of Bologna. The author named several of his books for dedicatees. Also, as I mentioned in the title of this post, Hippolytus de Marsiliis was the first professor to be contracted to teach criminal law at the University of Bologna, a position he was offered in light of his practical experience and enormous learning, but which also opened the door to a whole new branch of learning.
For more on his life, see:
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