The procedure of inquisitio, or government-instigated investigation, in contrast to private accusation, was the type of procedure by which most homicides, “professional” or “notorious” thieves, public assassins, foreigners, and contadini were tried, convicted and punished. While vendetta-control cases went to the courts via the private accusation procedure, those crimes the commune sought to punish or deter went to court by means of the inquisition procedure.
Not only had the reforms created, or at least encouraged, a dual system of criminal law, but the duality, the divisions into separate spheres of accusation and inquisitio, was dysfunctional. Theoretically homicide was a crime in the sphere of inquisitio, but homicide, in certain forms, was closely related to assault, an “accusation type” crime. Indeed many homicide cases were what can be called “assault-homicides,” that is, they were assault cases in which the victim happened to die, and many assault cases were merely assault and not homicide only because the victim was rescued by mediators.
Both murder and assault frequently were crimes of passion, and often it was not possible to know at the time of the act itself whether a crime of murder or simply an assault had taken place. When murder was a crime of passion, it, like assault, was likely to be viewed with tolerance. Many murderers were not turned in and were never sentenced to corporal punishment because crimes of passion, even if deliberate and intentional acts, were, according to vendetta mentality, an acceptable way of settling disputes. Violence in personal relationships, even when it escalated to murder, was a act which still was viewed as one which could be expiated, as a personal injury against an individual. But the criminal justice system did not reflect these popular perceptual categories. Judges, in their sentencing of criminals who were not contumacious, did have the authority to distinguish murder “furioso” from other types of homicide, such as hired assassination, and could modify the penalty as they wished. They had no such option, however, in cases where the murderer chose to ignore court orders and had been banished. Banishment decrees did not distinguish between the two types of homicide and therefore murderers who had committed crimes of passion and fled the scene were banished under the same harsh terms as hired assassins and those who murdered their victims in the course of a robbery. The community, however, made the distinction that the law failed to make. Such murderers would often escape capture, and would be supported, while under ban, by their families and fellow villagers and might even come to terms and forge a peace agreement with the heirs of their victim.
The distinctions between “public” and “private” spheres of criminal prosecution, between the procedures of accusation and inquisition, between vendetta control and deterrence of marginal criminality, thus reveal a basic ambivalence in the community’s view of crime and criminality, between those crimes and criminals to be tolerated and those to be feared. The development of public authority in criminal justice, the expansion of the role of government, and the criminal law reforms of the popular party, had resulted not in a monolithic impartial system but in a dual system of social control. Moreover, this dual system had been shaped and fashioned by a particular kind of government. In the 1280s the government was dominated by a noble faction, the Geremei, a faction sympathetic to popolo ideology, and criminal justice was structured for a particular political context, one in which the government was sensitive to the demands of the popular party, and in which noble faction and popular party had become a temporarily unified political entity. As we shall see, however, when the political environment changed, so too did the theoretical basis of penology and the actual pattern of the prosecution and punishment of crime.