I.

Introduction

History of Crime and Punishment, 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.

V.

Arrest and Policing

In the medieval and early modern periods, unless an offence was specifically directed against a prince or a state, it was generally up to the victim, or the victim’s relatives and friends, to pursue and often even to apprehend the offender. Some individuals went to considerable expense to get valuable property returned. In 18th-century England, for example, victims of horse theft often advertised in newspapers or had handbills printed and circulated; a horse, after all, was a valuable property. Such advertisements often met with success. Entrepreneur thief-catchers also established themselves. They lived by fees and rewards from the State for the apprehension of serious offenders, or fees and rewards from victims. Sometimes they simply negotiated with offenders for the return of stolen property rather than apprehending them and bringing them to trial.

Watchmen patrolled medieval and early modern towns for a period after dark. These were not police officers in the modern sense. At first they were commonly householders carrying out their civic duty, sometimes under duress. Householders were gradually replaced by paid watchmen, who often had regular jobs during the day. In the medieval and, particularly, the early modern period, the word police, or polizei or polizia, had a much broader meaning than a bureaucratic institution for the maintenance of order and the prevention and detection of crime. It was used to refer to the internal management of a territory, usually a city, and particularly to the maintenance of the well-being and safety of the population. Princes also occasionally established institutions to patrol the main roads of their territories and to represent their law in the rural districts. In late 15th-century Spain the Santa Hermandad was created for this reason. The companies of the Maréchaussée were established in France a few years later to protect the king’s subjects from the depredations of the king’s soldiers. By the mid-18th century the Maréchaussée had become the most respected and significant of such institutions in Europe, and during the French Revolution it was transformed into the Gendarmerie Nationale. But, generally speaking, it was not until the 19th century that professional police institutions began to be commonplace across Europe and the US. Thus it was rare before the 19th century that the victims of crime could turn to police institutions to detect and/or pursue offenders.

VI.

Trial

In the Middle Ages only two forms of legal proof were acceptable: the testimony of at least two impartial witnesses, or a confession of guilt from the accused. This created problems. It was often difficult to find the necessary witnesses, and in small communities where everyone knew everyone else impartiality could often be compromised or disputed. The requirement that the guilty confess led to the sanctioning of torture and the notion that resisting torture could purge “partial proofs” such as the testimony of one witness or circumstantial evidence. At least by the early 16th century these practices were perceived as unsatisfactory; courts increasingly began to make decisions on circumstantial evidence, and the use of torture generally declined.

A significant difference began to emerge between the courts of continental Europe and those in England with the use of the jury from around the 12th century. While continental European princes favoured courts administered and directed by professional jurists, in England, even though the king’s law became dominant, decisions as to guilt remained in the hands of jurors. The Scandinavian lands had developed a system of common law similar to that in England, but here too, juries were in decline by the 17th century. During the Enlightenment liberal French jurists looked to English legal practices in the same way that other liberal French thinkers looked to the English constitutional system. A jury system was established in France at the beginning of the French Revolution, and was introduced elsewhere following the successes of the French armies. Napoleon and other absolutist rulers were unsympathetic to the concept of the jury, and there were instances, especially in rural districts, of juries making decisions on prejudice or previous knowledge of the victim and the accused rather than on the evidence before them. But the system was maintained under the Code Napoléon, paradoxically as the English began introducing more and more non-jury trials in those lower courts run by magistrates.

VII.

Punishment

The popular view of barbaric, brutal punishments in the Middle Ages giving way under the pressure of Enlightenment humanitarianism to a more humane system of incarceration, with attempts to reform the offender, is open to a series of criticisms. In particular, while some forms of punishment have been more prominent at different times, a range of sanctions has commonly existed. A simple shift from brutal retributive punishments to reasoned punishments linked with reformation is not born out by the evidence.

There were barbaric and brutal punishments. Under the Roman emperors brutal, exemplary punishments were devised for serious crimes with offenders being crucified (see Crucifixion), burned to death, or thrown to wild beasts in the arena. The aim was to deter potential offenders, and also to demonstrate the power of the emperor. During the medieval and early modern periods, with similar motives, appalling violence was devised for the execution of those who threatened the lives of kings or the disruption of their realm. Hanging, drawing, and quartering was established in England in the reign of Edward I specifically for the public execution of the Scottish knight William Wallace. It became a stock punishment for high treason in England, though by the time of the execution of the Cato Street conspirators in 1820 the part-hanging and the disembowelling before decapitation were omitted. François Ravaillac, who assassinated Henry IV in 1610, and Robert-François Damiens, who tried to assassinate Louis XIV in 1757, each suffered grotesque public executions in Paris that concluded with their bodies being ripped apart by four horses pulling in opposite directions.

Other medieval and old regime executions were rarely as prolonged or as cruel. But there was no notion of reforming the serious offender, and consequently violent punishments that expiated the crime, supposedly deterred potential offenders, and, at times, symbolized the deed, were developed. In some territories a woman found guilty of infanticide was drowned in a sack; a parricide (killer of a near relative) had his, or her, hand lopped off before execution. Heretics might be burned at the stake; arsonists and women who had killed their husbands might suffer similarly. On continental Europe those found guilty of particularly serious crimes such as banditry or murder could have their limbs smashed by the executioner with a large wheel; the broken body was then displayed on the wheel. But most offenders who were executed were either hanged or beheaded. In some countries the execution followed an elaborate ceremony in which the offender, dressed in a symbolic shift (a loose gown), sought penitence in church, and made public atonement before the crowd.

Executioners were sometimes required to mutilate the offender by slitting the nose, cutting off the ears, boring through the tongue, blinding, or branding. Before easily accessible written records, the branding or other marking of offenders was a means of being able to check if an individual was a recidivist. The executioner also carried out corporal punishments such as whipping. Occasionally the site of an offence was chosen as the site for punishment, or part of the punishment. All of these punishments were public and the crowds who assembled to watch made their attitude towards the offender known. Some offenders were sentenced to shaming punishments. Those sentenced to the shame of being exposed in the pillory or stocks could find themselves pelted by crowds who strongly disapproved of their offence. But at times such shaming punishments could backfire on the authorities when the offender was feted and crowds undertook collections on the offender’s behalf; this was notably the case in 18th-century England with some printers punished for publishing anti-government pamphlets or prints.

All of these punishments were the result of some form of legal process in societies with some form of written law. Where local, customary law emerged and developed, in the wake of the retreating Romans, there were probably brutal punishments, but there is not much evidence of what went on. The Vikings were supposed to have had a ritual execution in which the son of a murdered father cut open the ribcage of his father’s killer forming the shape of an eagle with its wings extended. But the evidence for this is to be found primarily in Scandinavian sagas, written down long after they were composed, by individuals who, arguably, were keen to portray the Vikings as particularly bloodthirsty; in addition, there are doubts about the precise meanings of some of the words used. There were blood feuds in the Middle Ages, continuing, as noted earlier, in some societies as vendetta. But monetary sanctions were also used as a way of re-establishing the peace between groups after bloodshed. There is little precise evidence about the scale of capital punishments before the end of the 15th century. Before this date, execution appears to have been perceived as a way of demonstrating power over traitors and outlaws rather than as a judicial sanction. Cruel folkloric punishments existed outside formal law. These were to be found in peasant societies as late as the 19th century and probably had a very long pedigree. Peasants in Russia, for example, trussed serious offenders on ropes over tree branches and repeatedly dropped them on the base of their spine; other offenders were eviscerated with sharpened stakes. But there were other ways of resolving offences and injuries, particularly less serious ones. The vestiges of the non-judicial resolution of conflicts and injuries, with decisions being made by community elders or other individuals of some standing within a community, can also be found well into the 19th century and in some instances even beyond.

Often the non-judicial or infra-judicial resolution of an injury or conflict involved a monetary payment. Such resolution did not necessarily require the employment of legal officials or the courts. The monetary payment was also seen as settling a dispute or injury rather than a punishment. Nevertheless, the use of fines as punishments became significant in the courts during the medieval and early modern periods. In the small, self-regulating community where the fine was determined by community leaders it was paid directly to the victim or the offended party. Fines became attractive to the courts of growing urban societies at the turn of the 13th century since such monetary sanctions could be used to pay for the building or upkeep of city walls. Church courts sometimes imposed redeemable pilgrimages on offending burghers, and in these instances the fines contributed similarly to clerical buildings. Seeing the fine disappear into the coffers of the city-state, or of the Church or the prince, appears to have dissuaded some from using these courts. Nevertheless, the fine remained a common legal sanction for many petty offences, particularly in urban societies from the 16th to the 18th centuries.

Banishment had been used by the Romans principally for dealing with political dissidents. The medieval and early modern courts of city-states and of princes also employed this sanction to eject certain kinds of offender from their jurisdiction. Banishing individuals from a country could be difficult, however, because of the lack of means for systematic enforcement. From the early 17th century the English began to transport serious offenders to distant colonies (see Transportation). Initially, convicts were sent to the West Indies. But in the early 18th century, as a significant alternative to the death sentence for felony was sought, the government opted for the North American colonies, and the number of transportees increased. Australia replaced the Americas following the American War of Independence. As the British government brought its system of transportation to an end in the mid-19th century, so the French began to develop a similar system that was to continue well into the following century. Other forms of banishment continued elsewhere into the 20th century, and as with the Ancient Romans, the political dissident was commonly the target. In the Italy of Mussolini dissidents were exiled to bleak areas of the south; in the Soviet Union of Stalin, offenders in much greater numbers were shipped off to the notorious gulags of Siberia and beyond.

VIII.

The Rise of the Prison

Prisons were also used by the Romans, but not usually as a punishment. They were primarily places to hold the accused awaiting trial, and such practice continued through the Middle Ages. However, increasingly some offences in some territories began to be punished by incarceration. In 1298, as the legal experts of the Italian universities continued to pore over the Justinian Code, Pope Boniface VIII issued a lawbook, Liber Sextus, authorizing abbots and bishops to punish offenders in their courts with prison terms for a specific period or for life. At the same time, Florence and Venice began building public prisons. From the early 16th century it became common for petty offenders to be incarcerated in workhouses. The intention was that the experience would correct the idleness that, it was supposed, fostered wicked habits and crime. In France, Spain, and some Italian states rather more serious offenders were despatched to serve on galleys. The most significant developments in prison as a means of punishment, however, had to await the 18th and early 19th centuries.

In his celebrated pamphlet, Dei Delitti e Delle Pene (On Crimes and Punishments), first published in 1764, Cesare Beccaria crystallized many of the ideas that Enlightenment thinkers were working towards with reference to crimes and punishments. Beccaria insisted that territories with brutal and severe laws produced brutal and hardened criminals. He argued for an end to the death penalty for felonies, and for useful punishment which might reform, but which would also, by making convict labour public, deter potential offenders. Change did not occur overnight, but the late 18th century witnessed the publication of a succession of pamphlets calling for penal reform on the rational lines of the Enlightenment. In 1777 John Howard published The State of Prisons in England and Wales, exposing how men, women, and children were herded together in squalor, some already sentenced, some still awaiting trial. Fourteen years later, Jeremy Bentham published Panopticon, an architectural and theoretical plan for a prison that would enable the constant supervision of its inmates. By the middle of the 19th century most states in Europe and in the US had significantly reduced the number of offences punishable by death, and executions were increasingly moved behind prison walls away from the public gaze. Corporal punishment was also reduced and remained as a penal sanction in only a few states, but in states as constitutionally varied as liberal Britain and absolutist Russia. Again, such punishment was increasingly inflicted in private. Similarly, and principally it appears for reasons of decorum, few governments opted for convict labour on public display, though this was to become a major sanction in the southern US well into the 20th century. The most obvious change from the late 18th to the early 19th centuries was the development of the prison as the principal sanction for criminal behaviour. The early 19th-century advocates of prison reform experimented with various prison regimes. Some favoured convicts labouring in complete silence, their faces masked so that they could be known only by their prison numbers. Others favoured solitary confinement, with the convicts left alone with their thoughts, and invariably a Bible, to consider their wicked ways. The severity of some of the new “penitentiaries” was such that some convicts had mental breakdowns, and some attempted suicide. Concern about juvenile offenders and first offenders mixing with hardened recidivists prompted other experiments with agricultural or industrial schools, or for systems of probation for the first, or very minor, offender. The extent to which the punishment or the reformation of the offender was stressed varied over time as well as from country to country across the 19th and 20th centuries.

IX.

Continuities and Contrasts

Different contexts make different crimes. Adultery, heresy, sodomy, and sorcery were all once capital offences; by the end of the 20th century in most of the Western world, while some might condemn such behaviour, in very few instances were such activities considered to be crimes punishable by law. Theft and interpersonal violence have constituted the principal crimes in the Western world over two millennia, but different contexts shape the behaviour involved in these offences. Changes in men’s fashion meant that the “cut-purse” of the Middle Ages and early modern period transformed into the pickpocket of the 18th, 19th, and 20th centuries. The invention of railways and motor vehicles meant that pulling goods off the back of carts was no longer possible, and new forms of seizure were developed to appropriate goods in transit. Similarly, the late 20th-century developments of the credit card and of bank transfers by computer offered new challenges and new opportunities for offenders. The style of interpersonal violence has not shifted quite so obviously, but in different cultural contexts people have adopted different attitudes to its forms. Premeditated murder has been universally condemned, but killing for honour has not; and nor has fighting or chastising subordinates or dependants.

The dominance of particular forms of punishment has also changed over time. A range of sanctions has always been available, with particular forms being favoured at particular times and in particular contexts. Arguments have raged about the deterrent effect of punishment, especially extreme and violent punishment. But the arguments have never been ones that could be resolved by controlled experiment. Pickpockets were said to have been active in the crowds watching the public execution of convicted pickpockets, and much offending appears to have been opportunist with the perpetrator having no time to consider the potential consequences of a moment’s action.

From the beginning of the 19th century the prison became the dominant form. By the turn of the century penal policy across much of the western world was dominated by optimistic sentiments, not so much for the eradication of crime but certainly for the possibility of reforming many of those who did offend. By the close of the 20th century, however, the mood had changed. There was concern about rising crime manifested in official judicial and penal statistics and played upon by both politicians and the media. Governments, notably in the United Kingdom and the US, were developing pervasive methods of surveillance and tough penal policies.