Crime and Punishment, History of

I

Introduction

Crime and Punishment, History of, general patterns of crime in the European world across the past two millennia, and the changes in the sanctions deployed against offenders. Crime is the word commonly used to describe actions that the laws of a community or a state deem to be wrong. The laws, in turn, prescribe various sanctions or punishments for the perpetrators of crimes.

Crime is not an absolute—it is defined by law. Hence, while some activities such as theft or murder have been labelled as crimes in most societies, other activities, such as adultery and heresy, have been criminalized and decriminalized as attitudes and beliefs within different societies have changed. Measuring shifts in crime patterns over time, and between societies, is fraught with difficulties, and not simply because different societies have different laws and hence different definitions.

The Babylonian Code of Hammurabi is possibly the earliest legal code, but much Western law had its origins in Ancient Rome. In 451 bc the Roman Republic issued the Law of the Twelve Tables that were to constitute the basis of Roman law. Theft and assault were considered to be offences against private individuals, and consequently required the victim to prosecute the offender before the appropriate magistrates and the assembly of citizens. Additions were made to these laws over time, new courts were developed during the Roman Empire, and a degree of uniformity was consequently imposed over much of Europe. But as the empire retreated and disintegrated in the west, from the 5th century ad, and great migrations of peoples swept across Europe, so new customs and forms of law were established. Some historians argue that it is impossible to speak of criminal law much before the 12th century. It was in the 12th century that Roman law, specifically the Justinian Code, was revived, especially in the universities of Italy. This revival encouraged kings and princes to seek to expand their own authority, particularly over wrongdoers and rivals. It was not until 1532, however, that the Holy Roman Empire issued a full legal code—the Constitio Criminalis Carolina. Moreover, change within different territories occurred at different times and never at the same pace. By the close of the 16th century the relatively centralized kingdom of England had a series of royal laws more or less implemented within its boundaries; the English system was one of common law. The kingdom of France, however, whose borders were continuing to expand, had several hundred separate codes and these were, as in much of continental Europe, generally a mixture of local customary law and Roman law.

While, from the 12th century, formal criminal laws may have begun to be written once again, records from the Middle Ages of the proceedings in courts are few, and basing any estimates of crime on the number of trials for which documents remain is futile. From the early modern period, when a degree of rigour began to be introduced into their record keeping, it is possible to construct some statistics from court records. But there was a variety of courts: borough or burgess courts (in the towns), seigneurial courts, royal courts, and church courts. In addition, there were three forms of legal competence: high, middle, and low justice. There were also overlapping jurisdictions, and offences were muddied by plaintiffs to the extent that some cases brought before church courts manifestly had origins in secular arguments and injuries. All of which makes the collection of statistics for specific offences in the early modern period difficult. The collection of criminal statistics by emergent nation states did not begin seriously until the early 19th century, by which time most courts dealing with criminal matters were essentially state courts. At best, however, these are the statistics of crimes reported to police institutions. No one has successfully explained how the historian might assess or estimate what criminologists call “the dark figure” of crimes that were not reported and hence were never included in these statistics.

Measuring and analysing punishment is more simple, but not as simple as is often assumed. The traditional view was one of linear development. This charted a shift from brutal punishments inflicted on the body during the Roman, medieval, and early modern periods, to the development of the prison during the early 19th century, with the reformation of the offender considered as even more important than his or her punishment. The reality appears to have been far more complex and a variety of punishments have been used over time involving the use of banishment and fines, as well as execution, mutilation, and incarceration (see Capital Punishment). Moreover, while from the early Middle Ages princes and towns increasingly sought to impose their laws on the territories that they claimed, in many areas they met resistance. Some gentry, for example, who considered that their social standing and common sense gave them the right to make decisions and judgments about various injuries and offences, disliked the idea of professional lawyers quoting Latin and using foreign precedents in the courts. And in rural areas especially, communities still sought to resolve injuries and punish miscreants in their own way without recourse to prince or town.

II

Theft, Violence, and Patterns of Crime

Allowing for the problems with different laws and with the statistics, certain generalizations can be made about criminal offences. Serious crime, or felony, can be conveniently divided into two broad categories: offences against the person, and offences against property. Less serious offences, generally called misdemeanours in English, and contraventions or délits in French, cover a range of activity from the victimless crime of soliciting for prostitution, to being drunk and disorderly and to minor traffic violations.

In the medieval and early modern world, when religion and religious belief played a central role within society, heresy and witchcraft were considered major crimes. While the numbers accused of these offences never matched the numbers accused of theft, the violence of the pursuit of heretics and witches, especially in the 16th and 17th centuries, and of the brutal deaths that many suffered as a result of conviction, has given these offences notoriety. There have been some wild estimates of the numbers executed in Europe for witchcraft in the crazes that broke out between 1450 and 1750, and moved, gradually, from the western to the eastern side of the continent. The current consensus, however, puts the numbers at about 40,000. Increasing secularization and rationalism led to the end of these crimes.

The argument has been made that the most significant change in the pattern of crime from the medieval to the modern period was a move from the predominance of interpersonal violence to the predominance of property crime. It is true that the murder rates in the European world do appear to decline significantly from the early 17th century. Murder has always been seen as a particularly reprehensible offence and, in consequence, the reporting and prosecution of murder is generally regarded to have been closer to the number of offences than the reporting and prosecution of other crimes. The first countries to witness the early modern decline in murder were England and the Netherlands. Countries bordering the Mediterranean Sea, where ideas of honour as a key element of a man and a family’s social capital had a much longer life, were much slower in following the trend. Moreover, well into the 20th century in some regions and communities where vendetta remained a way of life, such as Corsica, Sicily, Greece, and the Balkans, killing for reasons of honour tended to be regarded as a crime only by representatives of the nation state such as judges and policemen. Overall, however, substantiating the violence to theft hypothesis remains difficult, and not least because of the evidence for considerable property crime in the medieval and early modern periods.

There is a similar problem with the belief that problems of theft and interpersonal violence were greater in towns. Assumptions that contrasted honest country folk and tricky, dangerous townspeople who took advantage of the anonymity of the town can be found in the classical world. But while certain rural offences, such as poaching, were unlikely in a town, and certain urban offences, such as street robbery, were impossible in a wheat field, the surviving evidence of crime does not suggest that urban crime was necessarily any more widespread, serious, or dangerous than rural crime. Some rural districts became notorious for bandits, especially mountainous border areas where life was hard and where opportunities for smuggling existed. Some urban districts had reputations for danger and criminality. Paris was supposed to have had a criminals’ district known as the Court of Miracles from the Middle Ages; here there was supposed to be a complete counter-society with its own leaders and its own rules, but the notion probably owes more to romance than any historical reality. Finally, given the sharper confines of the towns, and hence the greater possibilities for the management and organization of police institutions and surveillance, it is quite possible that urban areas took a stronger grip on the prevention and detection of crime before the countryside.

Much of the early research into the history of crime was inspired by the idea that the shift to capitalist economies prompted a reappraisal of the understanding of private property and led to the criminalization of certain activities regarded as rights by peasant and plebeian groups. Thus, in the urban or industrial workplace the remnants of raw materials left over in the production process were claimed by workers as their “right” while their employers increasingly demanded that they be returned. In the countryside, the ownership of common land and forest was acquired by gentry, and/or old feudal deeds were dusted off to prove ownership, and the forests and fields were closed to those who claimed the right to gather wood from, or graze their animals on, such lands. Court records from the 18th and 19th centuries especially reveal prosecutions for thefts of raw materials and the pursuit of those seeking to maintain their right to common land. But while there were shifting attitudes to private property, offences that can be equated with conflicts over such rights never constituted the major part of property crimes brought before the courts. A glance through the surviving records of any criminal court from the early modern to the modern periods shows most thefts to have been largely petty, involving household goods, clothing, and tools, and many of the victims were only marginally better off than the accused.

More recently, the growth of feminism and the interest in the role of gender in history has fostered research into violence and violent crime. While a decline in homicidal violence seems substantiated by the admittedly difficult evidence, the extent and pattern of interpersonal violence is less clear. Most men in the Middle Ages carried knives, and so too did many working-class men in the 19th century; a knife was simply a tool for many working men on the land, in towns, or at sea. Serious brawls in taverns could, in consequence, see knives drawn and serious injuries inflicted. Chastising wives, children, and servants for errors and bad behaviour was commonly seen as the duty of the head of a household in the medieval and early modern period. But a new sensibility in the 18th century began to condemn such chastisement, and increasingly cases could be brought before the courts as assaults. From the mid-18th century at least, there are cases of servants bringing their masters to court on charges of assault. At the same time the beating of wives began to be stigmatized and denigrated as the behaviour only of men from the rougher elements of the working class. It was from this social group that most of the accused came, but that could well mean a significant dark figure among their social superiors since there is evidence of cruelty and violence within middle-class and upper-class homes.

The physical correction of wives owed much to Roman law, as it had been adapted by legal scholars in the Middle Ages. The Romans had permitted husbands to kill their wives for certain offences, notably adultery, and while medieval European laws did not as a rule adopt a similar extreme, in some countries and in some regions a double standard existed with reference to adultery into the 20th century. As late as 1907 in France a man who killed his wife having caught her in the act of adultery could escape criminal sanction.

III

Rape and Riot

Domestic violence has been notoriously under-reported; so too has rape. Male rape existed, but appears almost never to have been reported. Sodomy was almost always a capital crime, and those found guilty were generally execrated by the crowds present at their execution or while they stood in the pillory. In early modern France, Spain, and Italy the gang rape of a female appears to have been a demonstration of virility and masculine honour, and a rite of passage for the sons of urban artisans and journeymen. Few of the offenders were ever punished. In most European states rape became a capital crime in the early modern period. However, many early jurists did not conceive of the offence as one committed against a person: since women were principally perceived legally in their relationship to a man, female rape was either an offence against property or an offence against parental authority. It was rare for anyone to be executed for rape unless the victim was particularly young and the crime particularly brutal. Indeed, law books could even suggest that while an assault on a woman of good character might merit death, a master’s abuse of a servant girl might be assuaged with a money transaction. Even in the 20th century the dishonour of rape and the prospect of the intrusive investigation of a female victim’s sex life by male police in private, and by male defence lawyers in public court, probably dissuaded many from reporting an attack.

In the same way that violence against wives, children, and servants could receive a degree of popular sanction, so too could some forms of riot. Food shortages, high prices, enforced military recruitment, and some taxes, could all generate, or at least contribute to, serious protest. The Bastille was stormed on July 14, 1789, when concerns about food shortages were rife and when food prices in Paris had reached a peak. The authorities could also label as riot the folkloric demonstrations that commonly took place in rural communities, against individuals who had offended local mores such as the husband who let himself be cuckolded or beaten by his wife, and the old man who took a young bride. But riot has never been significant in the statistics of crime, and nor has political crime, from sedition to the more serious treason. However, and for obvious reasons, political crime, especially in its more spectacular manifestations such as the wave of anarchist and socialist bombings and assassinations at the end of the 19th and the beginning of the 20th centuries, generates far more publicity than the more common offences of petty theft and assault.

IV

Criminals

The concept of the criminal is relatively recent. But a series of stereotype offenders appear to have been present in the Middle Ages. These were gradually reshaped in the early modern period, and then remoulded as the “criminal class” or classes, or simply as criminals, principally during the 19th century.

Robber knights and robber barons were a phenomenon of the Middle Ages eventually brought under control by the armed might of kings and princes but also, it has been argued, by an increasing gentility of manners among the ruling elites (see Feudalism). The growth of capitalism led to a new kind of robber baron whose offences were not necessarily against the law. However, capitalism and industrialization fostered the development of the white-collar offender who defrauded both companies and investors. It has been estimated that as many as one in six of the company promotions in Victorian Britain were fraudulent. But, aside from various relatively short-lived panics about individual robber barons in the feudal world, or about white-collar offenders in the capitalist world, criminal stereotypes have rarely been situated among the elite.

At times the robber knights of the Middle Ages might have been scarcely distinguishable from bandits, but bandits have had a much longer existence. Bandits could acquire a romantic aura, but often not until after their deaths. Robin Hood is the obvious example, and a man who, allegedly, robbed the rich to give to the poor. There is doubt about the existence of Robin Hood himself, but plenty of other bandits acquired his romantic image from the Middle Ages onward. In reality, however, few ever showed much solidarity with the peasantry and the poor. Bandit groups appear most often to have been united by kinship and friendship. They commonly had links with some local power holders who might even employ them as their own strong-arm men. Individuals sometimes embarked on bandit careers fired by motives of revenge for personal wrongs. They could also be involved in large-scale entrepreneurial activity such as smuggling and rustling. The internal customs barriers in countries such as ancien régime France, for example, created magnificent opportunities for smuggling, both petty and large scale. The best-known bandit of 18th-century France, Robert Mandrin, was involved in massive contraband expeditions with large numbers of armed escorts to protect his enterprise and fight off police and troops. The bandit of the medieval and early modern period was, in this respect, a forerunner of the modern gangster involved in the illegal entrepreneurial trafficking of alcohol, drugs, and people.

Bandits might also be drawn from marginal groups. In the Middle Ages there was concern about the rootless vagabond. Of course, there were indeed vagabonds and beggars, some of whom, most notoriously deserters and discharged soldiers still armed with their military weaponry, could be dangerous. There were also groups, such as entertainers, tinkers, and Roma (Gypsies), whose way of life put them on the road. Particular trades were stigmatized because of the filth or general unpleasantness that surrounded them—knackers (slaughterers of horses), skinners, and tanners are the obvious examples. These were considered dishonourable people—unehrliche Leute they were called in the German lands—who, while their tasks might be based in the urban world, were compelled to live on the edge, or even outside, of the towns. Also significant among the marginalized and the ostracized, were Jews. These individuals and groups, excluded by rural and urban communities, are found in court records charged with various offences from highway robbery to arson. The problem is in assessing the extent to which the stigmatization was self-fulfilling. Once such individuals were excluded, denied ordinary civil rights, and labelled as dangerous, there could have been a strong incentive for them to commit criminal acts as the best way, perhaps the only way, of ensuring a living.

The obsession with the vagrant as criminal had a remarkable longevity from the medieval period until well into the 19th century. The men who argued for a reform of the English police in the late 18th and early 19th centuries, for example, all expressed concern about vagabonds and those individuals who, the reformers believed, preferred a life of idleness and looked for luxury, rather than indulging in respectable labour for an honest wage. Yet while there were continuities in the perception of the offender, there were also shifting perceptions regarding his or her motivation, and these are easier to substantiate than a shift from violence to theft.

As European society became more secular so the perception of criminal offending shifted from a form of sin, prompted by the Devil, to the responsibility of the offender making rational choices. This shift was gradual, but was accelerated by a series of developments particularly during the 18th century. First, the population began to grow faster than the economy, and thousands were forced on to the roads looking for work; a conservative estimate has it that 5 per cent of the population of the German lands were in this situation at the beginning of the 18th century. Some of these probably did resort to brigandage and highway robbery, but the large numbers on the roads served to increase insecurity and fears of crime and criminals. At the end of the 18th century the behaviour of crowds during the French Revolution accentuated fears about the urban poor. In the early 1840s a French police administrator, Henri Frégier, coined the term les classes dangereuses, and this struck a chord with those among the propertied classes fearful of revolution, and fearful especially of the poor in the burgeoning slums of the big cities and the new industrial regions. It was easy to elide dangerous classes and criminal classes.

Towards the end of the 19th century, influenced by new understandings of evolution, a school of criminological thought emerged perceiving the criminal less as someone morally responsible acting as a result of free will, and more as an individual dominated by his or her physiological nature (see Criminology). The principal mover in this way of thinking was Cesare Lombroso, who claimed to have begun to develop his ideas while serving as a military doctor during the Brigands’ War of the 1860s in the south of Italy, and specifically when he examined the head of a notorious, dead brigand, Giuseppe Vilella. Lombroso constantly refined his notion of the born criminal, as did his successors. They increasingly included a number of other elements as working upon the potential offender: feckless parents, drink, poor housing, and so forth. Such ideas suited well with contemporary concerns about race degeneration and the science of eugenics. It encouraged some governments, notably in some states in the United States and in Scandinavia, to introduce sterilization into their penal policy; and it found its worst manifestation in Nazi Germany (see National Socialism).

Away from the stereotypes of bandits, vagrants, members of the criminal class, and born criminals, however, some generalizations can be made about criminals through time. First, the evidence suggests that the majority of people responsible for both offences against property and offences against the person were men, and primarily young men. Women figure most prominently in offences relating to prostitution. In some countries the evidence of recidivism (relapsing back into crime), and this is obviously something that depends on the kind of careful records kept from the 19th century, suggests that women were repeat offenders in greater numbers than men. This is probably due to the stigma of prison, and to the difficulty experienced by women with this stigma in finding respectable work and restoring some vestige of expected feminine morality. Most property crimes did not involve violence or the threat of violence. A high percentage of assaults, from pub brawls to rapes, generally seem to involve people who knew each other, even people who were related. There was stranger-on-stranger violence, especially in offences involving bands of brigands, burglars disturbed in the act, individual highwaymen, or footpads (unmounted highwaymen). But the violence of professional criminals was often committed among those themselves as, for example, when criminal gangs fought over territory for illegal enterprises such as prostitution, illicit gambling, or the supply of heavily taxed or prohibited goods.