Systems of Law, Crime, and Punishment
Systems of Law, Crime, and Punishment
Legislation and Institutions. Law in eighteenth- and nineteenth-century Europe was a vast system of social controls by which the propertied elite maintained a rigid stranglehold on society and social development. These laws could be quite harsh—violation of any one of the more than one hundred antipoaching laws comprising the Black Act (1723–1823) in Great Britain, for example, could bring a death sentence. Secular courts, such as the assizes in Britain and the parlements in France, determined the guilt or innocence of accused criminals in trials that made increasing use of witnesses and evidence. The Prussian judiciary was the best-educated in Europe. The crown selected judges on the basis of competence, not social rank. Thus, besides being highly competent, the Prussian judiciary was also the most socially mixed in Europe. More then two-thirds of Berlin’s judges, for example, were from the middle class. In Russia justice was largely meted out by local boyars, who had nearly autocratic powers on their own lands. These boyar-judges generally were not formally educated and usually just bent the law to serve their own interest.
Enlightenment Thought. During the mid to late eighteenth century French philosophes such as Charles-Louis de Secondat, baron de Montesquieu, and Francis-Marie Arouet (Voltaire) argued that the social and political institutions of France (and Europe in general) were constraining progress and did not reflect humanity’s capacity for achievement. Most philosophes argued that justice should be secularized, that a crime’s punishment should not be linked to whether or not an act was a sin in the church. Further, virtually all philosophes were concerned over the enormous advantage the privilege elite possessed in the courtroom. Not only did wealth and prestige allow for a covert manipulation of the judicial system (for example, by bribing judges), but French laws were usually written with separate punishments for the privileged and the common masses. Men such as Montesquieu reasoned that this could only be dealt with through a standardized judicial process in which the law was applied equally to everyone. The philosophes communicated their ideas largely through literary works, books, pamphlets, dictionaries, and legal briefs, for example, not through violence.
A CERTAIN SUBORDINATION
In Adam Smith’s famous economic treatise An Inquiry into the Nature and Causes of the Wealth of Nations (1776), one finds some interesting and cogent theoretical arguments concerning the funding and functioning of the judicial system. Note his argument that if the judges and lawyers of a country are not well paid, they will not execute their offices fairly or efficiently.
Book V, Chapter 1 “Of the Expenses of the Sovereign or Commonwealth”
Part 2 “Of the Expense of Justice”
The second duty of the sovereign, that of protecting, as far as possible, every member of the society from the injustice or oppression of every other member of it, or the duty of establishing an exact administration of justice, requires, too, very different degrees of expense in the different periods of society....
Civil government supposes a certain subordination. But as the necessity of civil government gradually grows up with the acquisition of valuable property, so the principal causes which naturally introduce subordination gradually grow up with the growth of that valuable property. The causes or circumstances which naturally introduce subordination, or which naturally, and antecedent to any civil institution, give some men some superiority over the greater part of their brethren, seem to be four in number....
Justice, however, never was in reality administered gratis in any country. Lawyers and attorneys, at least, must always be paid by the parties; and, if they were not, they would perform their duty still worse than they actually perform it. The fees annually paid to lawyers and attorneys amount, in every court, to a much greater sum than the salaries of the judges. The circumstance of those salaries being paid by the crown can no-where much diminish the necessary expense of a law-suit. But it was not so much to diminish the expense, as to prevent the corruption of justice, that the judges were prohibited from receiving any present or fee from the parties....
The office of judge is in itself so very honorable that men are willing to accept of it, though accompanied with very small emoluments. The inferior office of justice of peace, though attended with a good deal of trouble, and in most cases with no emoluments at all, is an object of ambition to the greater part of our country gentlemen. The salaries of all the different judges, high and low, together with the whole expense of the administration and execution of justice, even where it is not managed with very good economy, makes, in any civilized country, but a very inconsiderable part of the whole expense of government.
Source: Adam Smith, Inquiry into the Nature and Causes of the Wealth of Nations, edited by Robert Reich (New York: Modern Library, 2000).
Montesquieu. Two major works highlighting Enlightenment thought and jurisprudence were written by Montesquieu. In The Spirit of the Laws (1748), a critical historical study of European legal institutions, he argued that laws and justice systems were subject to the historical process and developed over time. In The Persian Letters (1721) Montesquieu stated that nature itself revealed a universal standard of justice which was applicable to all people regardless of lineage at all times. Montesquieu became convinced that only a strong, noble-dominated representative government could balance the potentially autocratic power of the king. His ideal in this regard was Britain’s Parliament.
Voltaire. The views of Arouet (he took the name Voltaire for unknown reasons) diverged from those of Montesquieu in that Voltaire did not trust kings or the nobility to vouch-safe the rights of their subjects. To Voltaire the House of Commons in Britain’s Parliament constituted the best possibility of protection of one’s rights. Voltaire’s writings tended to be more acerbic then Montesquieu’s. In Candide (1759), for example, Voltaire indicted superstition and fanaticism and confronted the contradictory nature of a good, loving God and an evil world. In Voltaire’s view religion’s utility lay in its potential to induce good behavior in society. Unfortunately, Voltaire reasoned, deeply held religious beliefs too easily led to fanaticism and intolerance. Religious zealotry became his bête noire, and he attacked it in the courtroom. In 1761 Voltaire undertook the legal defense of the Protestant Calas family in Toulouse. The father, Jean Galas, was accused of murdering his son to prevent his elopement with a Catholic girl. The father was convicted by the royal court of Toulouse and tortured to death. Voltaire investigated the case and highlighted both the lack of real evidence linking the father to the son’s death and the barbaric torture the father endured before his death. In 1764 the royal court of Toulouse reversed its decision.
Beccaria. Cesare Bonesana, Marquis of Beccaria, exercised, perhaps, more influence on European jurisprudence than any single person. Beccaria was a professor of political philosophy and a royal adviser to the Habsburg monarchy. However, he is best known as the author of Crimes and Punishment (1764), a widely read and highly regarded text on the practical application of Enlightenment notions of jurisprudence. Beccaria states, for example, that standardized trial procedures are essential to ensure that the guilty are punished. He rejected capital punishment and torture because he felt that these practices actually encouraged disrespect for the law. As evidence for this argument he cited a series of public executions in Vienna and in Italy during which the observing crowds became so rambunctious that they began looting and vandalizing property. The element of Beccaria’s work that most influenced judicial procedure in Europe was his notion that the accused should be considered innocent until proven guilty. Beccaria’s text was popular and influential: Duke Leopold II of Tuscany, Gustavus III of Sweden, and Frederick II of Prussia all banned torture in their countries after reasoned consideration of the book. The “Enlightened Despot” Joseph II, Beccaria’s own monarch, resisted the ideas in Crimes and Punishment at first, and only redressed torture in the Austrian penal system when the book came to earn wide respect throughout Europe.
French Parlements. In France parlements (regional royal courts) were headed by a group of judges who were all appointed to their posts by the crown, though most of the judges in fact achieved their appointments by purchasing their offices. In a trial the panel of judges heard evidence and witnesses and rendered both verdict and sentence. In the eighteenth century the king depended upon the parlements to cement his power in regions beyond central France. Besides hearing cases in civil and criminal law, the parlements also reviewed and usually registered royal edicts and decrees in their jurisdiction. Parlements could impede the crown by refusing to register a law, but the king could counter this refusal by appearing in person at the parlement (known as a lit de justice) and forcing the parlement to register the edict forthwith. The political and economic crisis in France in the late eighteenth century frequently set the crown and the parlements against
one another, and because of these situations the parlements became popularly associated with the defense of the nation’s rights against the monarch. The parlement of Paris, the most important of the French courts, took issue with Louis XV over Jansenism (a dissident Catholic movement banned by the Pope in 1713) in the 1750s. Louis expected obedience and angrily denounced the parlement of Paris for flouting his will. His open and vitriolic recriminations of the Paris parlementy however, only served to put the parlement in the position of defending the liberties and independence of the Gallican church against royal absolutism and papal control. Taken together, these perceptions contributed significantly to an erosion of the monarchy’s prestige. During the economic crisis of the 1770s and 1780s the parlements and the crown again locked horns over the issue of taxation. Royal chancellors attempted to solve the crown’s revenue problems by raising taxes.T\\t parlements opposed these measures as it was generally felt among the nobles that any rise in taxes would be followed by waves of peasant unrest. Louis XV rewarded the parlements for their resistance by abolishing them in 1773 and replacing them with new, docile law courts that owed their allegiance solely to the king. Lawyers across France turned their courtrooms into forums for political opposition and generally debated whether actual sovereignty in the French state lay with the people (represented by the parlements) or with the crown in the person of the king. Even after the parlements were restored in 1774, it was clear that they were not strong enough to prevent royal despotism. Many lawyers came to the conclusion that only a British-style parliament could do that. The crown could also take the law into its own hands through an instrument known as a lettre de cachet. These documents were issued in the king’s name and allowed the arrest and indefinite detention (frequently in the Bastille) of anyone for anything, thus bypassing any semblance of due legal process. Traditionally, the crown used the lettres to silence opposition to royal policy, and because of this they became a byword for despotism. A cahier de doléance (list of grievances) from 1788 demanded, for example, that “no citizen lose his liberty, except according to law; that consequently no one be arrested by virtue of special orders, or ... that the prisoner be handed over to the regular courts of justice within forty-eight hours.” Ironically, the parlements went the way of royal lettres de cachet, abolished by the Revolution that they helped to start.
English Assizes. The assizes were permanent, regional courts in Britain that developed from sixteenth-century itinerant courts. English constitutional law was founded on documents such as the Magna Carta (1215), the Petition of Right (1628), and the Bill of Rights (1689), and on the country’s traditional (“common”) legal institutions and practices (for example, the jury system). In Britain, unlike France, Prussia, or Russia, one’s trial was conducted in the courtroom by a single judge and a prosecuting attorney. A defense attorney attempted to demonstrate the accused’s innocence. After the prosecution “rested” its case, determination of guilt was left to a jury of twelve of the accused’s peers. The jury system was unique in Europe and exercised a considerable subsequent influence on the judicial systems of continental Europe. In addition, since the Habeas Corpus Act of 1679, defendants were guaranteed a speedy trial at which the prosecution had to present physical evidence, not merely hearsay, linking the accused to the crime. Lawyers studied law either on the continent at a law school, such as the University of Bologna, or at the increasingly prestigious Cambridge and Oxford law schools.
Law Codes. Civil law codes across Europe during the eighteenth and nineteenth centuries were promulgated by landowners who wished to protect their property. Law codes of the early to mid eighteenth century reflected the strangle-hold that the aristocracy held over the rest of society. By the nineteenth century, however, that hold was slipping, and the legislation reflected this. As law codes came to protect and represent larger proportions of society, they also strongly reaf-firmed the legal subordination of women to men.
Black Act. Since the sixteenth century, English landowners had been steadily expanding and enclosing their property, including their “deer parks” (fenced-in hunting preserves), into lands which had once been commonly held. English peasants continued to use these lands anyway as they had done traditionally, partly to protect the erosion of their customary hunting, fishing, and gleaning (collecting firewood) rights. Initially, the English propertied elites defended their newly emparked lands by setting vicious mantraps and snares in them to snag poachers. The peasantry, however, continued to hunt. In 1723 the Black Act was enacted by Parliament to stop illegal hunting (poaching), and as a result over fifty new capital offences were voted into law. Among the new offences were such things as blackening one’s face with charcoal or grease (hence the act’s name), carrying weapons, poaching game, illegal fishing, tree felling, and gleaning. In The Adventures of Joseph Andrews (1775) by Henry Fielding one catches a glimpse of this sanguinary law code in action: “‘Jesu!’ said the squire, Would you commit two persons to Bridewell (prison) for a twig?’ Yes,’ said the lawyer, ’and with great leniency too; for if we had called it a young tree they would have been both hanged.’” The British peasantry responded with clandestine, uncoordinated agrarian violence, burning barns, killing cattle, and breaking windows. This violence only subsided when the British elites stopped encroaching on common lands in the early nineteenth century, but by that time there was precious little of it left. The Black Act was repealed in 1823 on the grounds that it was no longer necessary to keep peace in the countryside.
Code Napoleon. Most of the cahiers de doléances submitted to Louis XVI on the eve of the French Revolution complained that French laws were neither uniform nor systematically implemented. A codification actually started under the National Convention during the Revolution but was interrupted by the Terror and was not finished. Napoleon, who desired to be known to history as the French Justinian (author of an imperial Roman law code), took up the task in 1804 and finished it in 1807. In France there were literally hundreds of different regional law codes, each a product of the historical development of a particular area. In the south written Roman law predominated, while customary
law, based upon local traditions, was common in the north. Napoleon hand-selected the members of a council of lawyers to codify the French legal morass, personally observed its work, and weighed in on critical decisions. Of the 2,287 articles ensconced in the Code, 1,851 dealt with the rights of property owners. The three sections of the Code were titled: Of Persons; Of Property and Different Modifications of Property; and Of the Different Modes of Acquiring Property. After property the next largest subject in the Code was the family. While Napoleon certainly did not author the entire Code, his hand is visible at certain points. Napoleon personally disliked the feminine influence he perceived in society, and the laws in the section Of Persons reflects this prejudice. Though the Code permitted divorce, the divorce process was made quite difficult (only an option after two years of marriage, and women could not apply for it by themselves). Under the Code, wives owed obedience to their husbands and were forbidden from buying, selling, mortgaging, or giving away property. Parental authority, especially that of the father, was recognized as the glue that held the modern state together. To this end, for example, no marriages could occur without parental blessing. Of course, only the groom could actually ask the parents for permission to wed. The Code was a monument to simplicity, accomplishing the goal of the council to create a complete, logical guide to French law that any citizen could understand. Concrete details and matters of enforcement were frequently omitted in favor of brevity. Article 146, governing marriage validity, for example, reads simply, “There is no marriage when there is no consent.” In addition to codifying the law, the Code also altered French juridical practice. The jury, for example, was adopted from the British legal system. The Code Napoleon proved quite influential across Europe. Wherever Napoleon’s armies went in conquest, the Code followed. Even after Napoleon’s fall and exile in 1815 the transplanted law codes remained in force. Even countries that had despised Napoleon and his armies, such as Spain, had great respect for his law code. In western Germany, northern Italy, and the Netherlands the Code was enormously popular. In Prussia, where Napoleon was generally hated, the Code was abolished in 1815 but was reinstated in 1838 when a council of Prussian jurists who had attempted to create their own standardized law code could produce nothing better.
Corn Laws. The laws collectively known as the Corn Laws were passed by the British Parliament in 1815 and 1828. They imposed a sliding tariff on imported wheat (then called “corn” in Europe), which kept cheap foreign grain out when the price of British grain was high and allowed expensive foreign grain in when the price of British grain was low. The laws were designed to protect landowners but were unfavorable to merchants who imported grain and to British consumers, who had no choice but to pay the high prices for bread. As the population of Britain grew, the demand for grain increased commensurately. A series of bad harvests (1839–1841) were followed by the Potato Famine in Ireland (1845–1846) when approximately one million died of starvation and another one million immigrated to the United States. The specter of a revolution brought on by the “Great Hunger” spurred many liberal politicians to ally with economically liberal businessmen and form the Anti-Corn Law League in 1839. The League enjoyed enormous support from the working class, who were feeling the most dire effects of the famine, but it was ultimately the fear of a Britain-wide workers’ rebellion that convinced the conservative prime minister Robert Peel (1788–1850) that the Corn Laws had to be repealed. By 1846, after a hard-fought struggle with the propertied elites, the Corn Laws were undone. However, the effort won Peel many powerful conservative enemies; in the same year Peel’ government collapsed and he was swept from office.
Urban Police Forces. Through the eighteenth century catching criminals in Europe was left either to very small, barely trained protopolice groups, elements of the military, the local nobility, or to no one. Most criminals were not caught, and most crimes went unpunished. The French Revolution of 1789-1799, however, especially the “Great Fear” in which thousands of French peasants destroyed the feudal documents that bound them to the nobility, provoked a great deal of fear in Britain and across continental Europe. The European middle and upper classes were terrified at the thought of a successful popular insurgency. To reassure them, many European countries created increasingly professional urban police forces that wore special paramilitary uniforms, patrolled the streets, and arrested lawbreakers. In Britain, Home Secretary and future prime minister Robert Peel created an unarmed municipal police force, nicknamed “bobbies” in his honor, which rigorously combed the avenues of British cities for criminal activity. France and Prussia followed Britain’s lead. The new French gendarmerie was four times larger than Britain’s police force, but because it was not well organized nor centrally controlled, it was not as effective at fighting crime. Prussia’s police force, on the other hand, was quite small (only four hundred officers watched more than four hundred thousand Berliners), but it was effective. This efficiency was due partly to aggressive patrolling and the use of new methods of criminal investigation (including criminal profiling and fingerprint gathering) and partly to a willingness on the part of the Prussian police force to savagely beat their suspects. This reputation for brutality made the Prussian police unpopular with liberals but also made them feared by criminals.
Censorship. Virtually all eighteenth- and nineteenth-century European governments relied on some form of censorship to control their citizens. In places such as Great Britain, where constitutional liberalism had made inroads, the press had a fair amount of freedom to print its opinions. In places such as Russia, where autocrats ruled, the press was kept on a short leash—visits from the secret police ensured the cooperation of the print shops. Across Europe, government punished those presses whose publications contained ideas that were deemed subversive or seditious. Criticism of the government could result in nocturnal beatings, secret arrests, the closure of the shop and confiscation of the printing presses themselves, or, at worst, the destruction of the shop itself (usually by fire). In France the iron grip that the early Bourbon monarchs had exercised on the French presses had slipped quite a bit, but monarchs such as Louis XV could still control the print shops when the need arose. His favorite tactic was to arrest a publisher in the middle of the night with a lettre de cachet and imprison him for a few years. Voltaire, for example, was arrested twice and imprisoned in the Bastille for a time. By the late nineteenth and early twentieth centuries the press had become a powerful political tool. Court cases such as that of Henrietta Caillaux, the wife of Joseph Caillaux, the former president of France, were virtually tried in the newspapers. Reporters hung like vultures outside of the courtrooms and published each day’s events, which the French populace eagerly devoured. The frenzied excitement that the press built up around such cases (Henrietta Caillaux had murdered a newspaper editor in 1913 after he attempted to blackmail her) transformed them into national scandals and directly affected the careers of those involved. Joseph Caillaux, who as president had sought political accommodation with Germany rather than military confrontation, was vigorously accused of weak-kneed pacifism in the press. The evidence for his weakness was, according to Le Figaro, a popular French tabloid, the fact that Joseph did not himself murder the editor in order to defend his wife’s honor. An editorial stated that if Caillaux could not defend his own wife, he could not defend France. Caillaux’s political career was badly damaged, and he disappeared from public life until 1924. The editor whom Henrietta murdered worked for Le Figaro. In Great Britain the presses were under the watchful eye of the government until the liberal political reforms of the mid-to-late nineteenth century transformed them into the mouthpieces of British political opinion. In Prussia, Russia, and Austria the press existed on the whim of the ruler.
Imprisonment. Generally, anyone who was arrested in Europe was held in a prison until his or her trial. A convicted criminal could also be remanded to a prison for incarceration as part of a sentencing, though this was not common before the 1820s. Prior to the reforms of Beccaria and the Code Napoleon, prisons such as Bridewell in Britain and the Bastille in France were essentially holding areas where corporal punishment was administered to criminals. The most common form of corporal punishment was flogging with a knottedrope lash. Bridewell (built in 1618 and expanded in 1834) had cells for 800 inmates. Sanitary conditions were generally poor, but until the mid nineteenth century the prison population was not generally very large. After the introduction of professional urban police forces, the percentage of criminals who were actually caught rose considerably and overwhelmed the existing European prison system. European judicial systems struggled under the weight of so many new inmates; many adopted a variety of creative, if cruel and brutal, solutions to the problem. Workhouses, well-policed sweatshops in which convicts were put to work making a variety of products, were quite common across Europe. The underlying principle behind workshops was in essence that very hard work and enforced prayer could reform rogues and allow them to return to society. Beggars and vagrants, who were frequent targets of police roundups, often found themselves incarcerated in workshops—the judicial systems of Europe generally accepted the notions that all beggars were essentially lazy and that hard work was the only way to cure them of this. For the more dangerous criminals (which the justice system deemed unreformable) exile was a common punishment. From 1787 to 1875, for example, Britain exiled some 135,000 criminals to Australia. A further solution was to expand the actual prison system. However, this was expensive and took some time. As a temporary solution, many states resorted to confining prisoners in old ships, which were anchored in rivers or harbors. Food and water were occasionally ferried out to them, and the conditions onboard were uniformly nightmarish. It was also expected that the families of the prisoners would pay the costs of the inmates’ food and lodging. In Russia a vast system of prisons, known as the gulags, was being built in western Siberia. The gulags were labor camps where convicts broke rocks in quarries all day in subzero temperatures.
Capital Punishment. Through the eighteenth and mid nineteenth centuries, death sentences were carried out in public as huge judicial spectacles. Thousands of onlookers would crowd around the executioner and his victim. The crowd
“This text has been suppressed due to author restrictions”
jeered at the convict and cheered his death. Until the invention of the guillotine in the 1780s, common criminals were hanged, and nobles were decapitated with either an ax or a sword. Sympathetic family members frequently slipped money to the executioner to make the death as quick and easy as possible. If this precaution were not undertaken, the criminal might endure great pain while he waited to die. Accounts of English executions abound with stories of beheadings in which it took the executioner as many as fifteen (and sometimes) more blows to sever the neck. The belief was that a gruesome execution would deter criminal activity by providing a horrifying example of justice. A terrifying example of this kind of spectacle can be seen in the 1 March 1757 execution of Robert-Francois Damiens, a man who attempted to kill Louis XV of France. He was “taken and conveyed in a cart, wearing nothing but a shirt, holding a torch of burning wax weighing two pounds” then, “in the said cart, to the Place de Gréve, where, on a scaffold that will be erected there, the flesh will be torn from his breasts, arms, thighs and calves with red-hot pincers, his right hand, holding the knife with which he committed the said parricide, burnt with sulphur, and, on those places where the flesh will be torn away, poured molten lead, boiling oil, burning resin, wax and sulphur melted together and then his body drawn and quartered by four horses and his limbs and body consumed by fire, reduced to ashes and his ashes thrown to the winds.” Influenced by Enlightenment calls for more humane forms of punishment, Dr. Joseph-Ignace Guillotin pushed the National Assembly in 1789 to approve a bill that guaranteed criminals a quick execution. Though he did not invent the “guillotine” execution machine, his name became associated with it because of the legislation he proposed in the assembly. The guillotine’s weighted blade could easily cut through a victim’s neck in a single, quick blow, without any torture. Capital punishment in France also became more egalitarian in that criminals with death sentences from all social classes ended up in the same place: on the guillotine.
Sources
Daniel Balmuth, Censorship in Russia, 1865-1905 (Washington, D.C.: University Press of America, 1979).
Edward Berenson, The Trial of Madame Caillaux (Berkeley: University of California Press, 1992).
Michael Burns, Dreyfus: A Family Affair, 1789-1945 (New York: Harper-Collins, 1991).
John Davis, Conflict and Control: Law and Order in Nineteenth-Century Italy (Atlantic Highlands, N.J.: Humanities Press International, 1988).
E. J. Hobsbawm and George Rudé, Captain Swing (New York: Norton, 1975).
Marie-Christine Leps, Apprehending the Criminal: The Production of Deviance in Nineteenth-Century Discourse (Durham, N.C.: Duke University Press, 1992).
George Rude, Criminal and Victim: Crime and Society in Early Nineteenth-Century England (Oxford: Oxford University Press, 1985).
Bernard Schwartz, The Code Napoleon and the Common-Law World NewYork: New York University Press, 1956).
Robert M. Schwarz, Policing the Poor in Eighteenth-Century France (Chapel Hill: University of North Carolina, 1988).
E. P. Thompson, Whigs and Hunters: The Origin of the Black Act (New York: Pantheon, 1975).