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.