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  2. Crime and Punishment in the Middle Ages and Early Modern Age
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He provides useful chapter summaries at the end of each chapter. By surveying1, years of history, Shoemaker allows us to see how sanctuary operated at different times and how attitudes toward it have changed. Such a succinct history can be forgiven for failing to address all questions that the material might raise in the detail that one might hope. The problem, however, is that legal text follows legal text in Sanctuary and Crime-- but what did these texts mean to the people who created these texts or copied them in particular contexts?

Why should modern readers care about sanctuary and changing attitudes toward it? And how has the vast amount of scholarship that has been produced on the subject shape our current understanding of sanctuary? Shoemaker could have said much more about these questions. Quite remarkably, the book lacks a conclusion. Sanctuary, like many legal institutions, developed and changed in particular cultures and societies. In practice, however, Shoemaker provides little information to help the reader understand sanctuary in its specific cultural contexts.

For instance, as Shoemaker makes clear, the institution of sanctuary gave clergy the power of intercession.

But he does not discuss the considerable scholarship on intercession and patronage in late antiquity and on the changing relationship at that time between the church and the Roman Empire. That scholarship could have illuminated why clerical intercession resonated so profoundly in the late antique world. Shoemaker does not consider how literature on the sacrality of space and the boundaries created by sacred space might be relevant, nor does he steer the reader to such literature.

A sweeping but short historical survey cannot by definition engage in depth with all the questions raised by scholars studying sanctuary. Yet readers would surely want to know the important questions that have been raised and would want to be referred to additional reading. For late antiquity, Shoemaker acknowledges only in an endnote that others have long linked sanctuary and clerical intercession. One might expect to see that in the text. In addition, when Shoemaker discusses the early modern period and the demise of sanctuary, he apparently repeats the arguments of Trisha Olson without crediting them in the manner one would expect pp.

Shoemaker uses the same explanation, citing Fraher but not Olson.


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In addition, Shoemaker does not cite literature that provides further nuances or possible challenges to his factual claims and analytical conclusions. But it also makes other arguments seem more obviously correct than they are. Sanctuary and Crime describes the age-old debates about the institution of sanctuary as debates about restorative versus retributive systems of justice. The issue of homicide has been the subject of much debate. Was there really such a high rate of homicide in the Middle Ages?

Was there indeed a decline in homicide from the 17th to the 19th centuries? Were Western societies more violent then than they are today? Is a decline in homicide a sign of a moral civilising process? The debate was particularly lively among American researchers, as well as among anthropologists of Southern hemisphere countries who were struck by the differing positions of homicide in American, Mediterranean and Continental societies Research such as that carried out by Robert Muchembled on Early Modern Artois and Claude Gauvard on 14th century France has nonetheless endeavoured to situate all forms of violence in any given society on a continuum in order to measure violence as a symbolic expression of social relationships On the other hand, it has been the object of much research on the 18th and early 19th centuries Analysed either from a Marxist perspective, based on the famous study by Karl Marx on legislation concerning wood theft in Rhineland 41 , or from the perspective of changing sensibilities, theft is currently the subject of important studies being carried out in the context of the industrial revolution For the medieval period, the documents that have been preserved mainly involve heresy.

The few trial records that exist today have made extraordinary contributions to our knowledge of local societies, as has been revealed by the media success of the Le Roy Ladurie study of Montaillou For the 16th and 17th centuries the religious question seemed inextricably linked to the question of moral authority. The schism within in Christianity after led to an increase in crimes of divine lese-majesty in both secular and ecclesiastical jurisdictions, especially where Inquisitions were present. Witchcraft and sorcery now form well-known chapters of modern history. The facts are substantial and the chronology of the witch-hunt that ravaged Western Europe from to is well-established.

Interpretations are many and various characterising repression as a means of disciplining traditional rural practices by the dominant intellectual culture, as an outlet for economic crises and social tensions, as an instrument for the construction of newly-formed lay and religious powers, or as a means of re-articulating the relationship between religion and power. All of these analyses have progressively contributed to explaining the outbreak, the rhythms, the loci and the decline of this vast entreprise of social purification Judicial archives are interesting in that they document not only the repression of sexual behaviour, but also, inversely, the tolerance exhibited toward certain practices Judging by the lightness of fines and the frequency of cases recorded, the records of ecclesiastical jurisdictions and rural court pleas offer a new vision of clerical attitudes towards chastity and the wrong-doings of their married parishioners These tougher measures have been viewed in light of attempts by the bourgeois elite to civilise moral behaviour or to repress popular cultures Opposition to city authorities and the frequent exile of those defeated in political battles, the symbolic role of regicide and the horror of the punishment inflicted, excessively emphasised in Foucault's interpretation of modern justice systems, the practice of exceptional and revolutionary jurisdictions at a time when legislation was trying to make everyone equal before the law and the courts and to extirpate the political from the judicial - all have been studied essentially in relation to political structures and, to a far lesser extent, in relation to criminal structures.

A number of studies have drawn attention to the stereotypical character of this behaviour, which is not as statistically frequent in archives as it is in literary sources or in the mental reconstructions of our contemporaries. On the other hand, particular attention must be paid to the position of women in a social environment in which conduct such as taking sides with men in their quarrels, committing minor misdemeanours or domestic theft, especially of food, could lead to the intervention of the justice system.

Their position as the preferred victims in certain cases e. Apart from the fact that the age of offenders is not always mentioned in records, it is difficult to appreciate the significance of age for periods preceding the 18th century. Furthermore, the important role of unmarried youths in the life of local communities has been underlined for the Middle Ages and the Early Modern period especially in regards to prostitution, collective rape, marriage policies and political protest A link has thus been established between traditional forms of youth associations and the emergence of political groups in revolutionary periods The very different positions within the web of justice systems of long-standing inhabitants, newly-arrived inhabitants, migrants, and outcasts such as vagrants and the unemployed have been mainly studied as urban phenomena.

In the s some researchers, fascinated with crime, largely ignored the measures of its repression. Contemporary studies now distinguish between prosecuted delinquents and those who have effectively received punishment following judicial proceedings. This history of repression, which a recent session of the International Congress of Historical Sciences summarised 55 , allows researchers to depart from historiographical notions that were too influenced by general stereotypes of the barbarism of punishments before the 19th century.

The typology established by Rushe and Kirchheimer could be followed in order to distinguish three types of punishment that were successively used according to three social configurations of repressive societies Other more original penalties, such as redeemable judicial pilgrimages, have allowed some to venture the notion of a penal fiscal economy, notably in medieval cities. This research has been of interest to those modern penologists who are concerned about both efficiently applying financial sanctions in legal cases in which money is the motive such as financial lawsuits, the repression of clandestine traffic and economic delinquency , and about the proper integration of penalties in the broader social system.

The dramatic expansion of the Theatre of Horrors in the cities of northern Europe in the 16th and 17th centuries, and its decline in the 18th century, has been particularly well researched Spierenburg's synthesis explicitly links the evolution of corporal punishment and the emergence of imprisonment. This is a promising avenue because it integrates the analysis of punishment with analysis of societies and underscores the existence of a penal economy that privileges the standardisation of penalties for specific types of social problems.

The disappearance of one standard penalty in favour of another illuminates societal mutations On the one hand, long-term analysis allows the researcher to retrace unexpected correlations from the judicial pilgrimage to banishment, from expulsion to prison. On the other hand, from the study of punishment as a whole, one can measure interactions between alternative penalties such as imprisonment instead of banishment. The distinction between judgements and the actual execution of sentences, notably, for example, in the use of pardons, recalls the gap between discourse and practice.

Beyond considering repression as an isolated model, historians are now interested in the role of punishment within the complex, fluctuating and polymorphous processes of social control. The aims of social control and the means employed for its maintenance expose it mainly as a set of cultural conceptions in pre-industrial societies. Over a period of centuries marked by feudal strife, the church was often the only stable authority and it introduced peace, truces and an entire series of practices aimed at channelling violence Among the bourgeois classes amicitia and coniuratio initiated systems of control among peers in which self-denunciation, negotiation with the injured party, financial and religious sanctions and reconciliation were mutually accepted and valued practices.

Princes and sovereigns, for their part, tried to gain a monopoly of keeping the peace notably by ordering their offices to protect the roads and countryside safe. As for rural communities, they developed sophisticated systems of maintaining social cohesion, and calling on the formal justice system to settle disputes was a last resort The beginning of the modern period was typical of such an obsessive preoccupation with justice.

In order to uphold order against both external and internal threats, heretics, witches, vagrants, suspected dissenters as in revolutionary France , Jews, free masons, homosexuals and immigrants have all at one time or other become victims of stigmatisation. Also, in this context the activities of less conciliatory justice systems that abused public prosecution, investigatory procedures notorious for their secrecy, the use of torture to obtain confessions, corporal punishment and public executions stand out.

At the same time these justice systems were often subject to strong social pressures particularly from victims among the local population, demanding justice. This was particularly apparent perceptible in the context of the 16th century labour crisis, which witnessed the creation of workhouses. From this moment the penal system appear to have focussed on the repression of offences against property, employing more mass prosecutions and the near-monopoly of prison sentences. Furthermore, historiographic debate has constantly brought us beyond the limits encountered in the definition of concepts, the reliability of sources, the methodologies used and the interpretation of quantitative data.

Now much better acquainted with patterns of criminals and their crimes, penal history is interested not only in the motives of criminal activity, but also in the social reactions to crime. From analyses based solely on one type of social reaction, i. Their contributions link the statistics of crime and punishment statistics with larger social structures, which has helped to measure the impact of social relationships and structures in the regulation of conflicts.

Let us now look at how the history of pre-industrial societies has influenced the history of criminal justice and how, inversely, the history of criminal justice progressively influences our knowledge of pre-industrial societies. This discussion will focus on criminal justice, which lies at the core of the ensemble of agents responsible for conflict regulation. However, numerous analyses have demonstrated the central role of the exercise of criminal justice in the definition of autonomously administered territories, as well as the variability of the means of conflict resolution according to the nature of the territorial space in question.

The imposition of fines and judicial pilgrimages, as well as the use of mediators, comprised original forms of conflict regulation that were born in these face-to-face societies. For example, feudal manors, villages and seigniories were more concentrated zones for the expression of power than more expansive territories. Studies carried out on seigniorial justice systems illustrate particular problems arose according to the size of the territory administered and there were particular problems linked to the handling of productive spaces, such as minor infractions on, and the maintenance of, rural and forest property.

Similarly the role played by priests or guilds in urban areas or pastors in consistories of reformed communities, can only be explained by the relatively small size of the communities and confirm the penetration of social ties in justice systems. Whether from a centralised point or via the attribution of particular competences, the state successfully imposed its influence over categories of ever-increasing numbers of people.

It is difficult to comprehend the success of the state without looking at the impact of its various implements. Royal pardon, inquisitions and patrolling constables provide a few examples of the judicial, institutional or military implements that allowed sovereign powers to accustom people to their role in local life. These means contributed to the progressive creation of a coherent space, much more vast than urban communities or villages alone. However, states should not be equated simply with monarchies or nations. States developed in such a way so as to function in a city, in a region or in a confederation.

Nevertheless, the state seems to have followed the example of the monarchy in its development of the repressive justice systems that helped to give birth to greater and greater territorial expanses, as the example of the expansion of the English and French monarchies shows Often, the link between justice and power has been either neglected in juridical studies, or caricatured in politically-oriented examinations ones.

Crime & Punishments in Medieval England

Nonetheless the precise analysis of the real functioning of justice systems reveals the intimate links between power structures and the forms and practices of justice. Whether in the hands of urban oligarchies, rural aristocracies, provincial bourgeois, or officers of the monarchy, all courts favoured specific models when dealing with crime.

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Domain justice seemed to be the most highly developed, or at least the most well-known form of justice. In emerging cities justice systems were organised largely according to bourgeois interests. It is apparent seen that demands for internal security such as the struggle against clan violence as well as exterior security protection against feudal powers and mistrust of sovereigns frequently influenced consular and municipal judges regarding conflicts and their resolutions. The development of different branches of recourse to justice allowed central powers sovereigns or regional powers parliaments, councils and superior courts progressively to accustom populations to new forms of state organisms and ways of handling crime.

Recent criminal history research also reveals the important synergy between the development and the transformation of judicial regulations and the growing pressure of the state as form of modernised, rationalised and bureaucratised power over local populations This is why urban authorities became very quickly interested in setting up structures to fight violence.

Normative measures not only regulated the right to bear arms, but also forbade them within city limits. Administrative practices from Florence to Utrecht repressed the activities of clan chiefs who were considered violent Rural notables were not always able to maintain peace between families whose conflicts might extend to private acts of vengeance.

In this context certain sovereigns in France, Burgundy, Spain and Portugal, for example , intervened to allow offenders to escape from local justice.

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Crime & Punishment

The extraordinary development of pardons, especially in regards to homicide, reveals how, between the end of the 15th and the 17th centuries, a major local problem could be brought under the control of the sovereign, thus reinforcing the sovereign's prestige, authority and power among his subjects The surge of uprooted peasants and jobless workers into the cities weighed heavily on social climates, especially during periods of crisis. At the end of the 15th century, in the middle of the 16th century, during the 17th century wars that devastated central and Northwest Europe, and in even greater numbers in the 18th century, the presence of vagrants and transients became pressing juridical and political as well as social, problems for cities, monarchs and states Initially medieval cities employed collective administrative expulsion, with hardly any recognition that this could only be a temporary solution.

The recurrence of this phenomenon and the organisation of these excluded masses into groups that were perceived as dangerous quickly showed these measures to be ineffective. During the great economic and social crisis of the 16th century, other solutions emerged that were oriented toward placing inactive people into forced labour.

In a more repressive mode, sentencing to galleys or deportation overseas supplanted these models in the context of the military or demographic expansion of the major colonising nations In cities, theses populations certainly felt the severity of repressive measures more than inhabitants. More likely to be suspected, they could be tortured largely because of the way they looked, and they often received the most severe forms of corporal punishment. In the countryside, provosts and marshals pursued them relentlessly, arresting them, judging them and executing them, sometimes without any form of trial.

In both cities and the countryside, bourgeois-controlled justice systems were obsessed by theft and by the extensive damage caused to woods and fields by the practice of gleaning, carried out by women, children and the elderly At the end of the 18th century, seigniorial entrepreneurs keen for the rational exploitation of their property reduced community land use rights and criminalised some activities regarded as customs. Justice thus became class justice, a means for the ruling classes to impose their social priorities and economic objectives on the popular classes The sentence of imprisonment can be included with that of forced labour, the galleys, or deportation, as replacing corporal punishment notably branding, whipping and expulsion which was increasingly deemed an inefficient regulator of wandering and impoverished populations.

The work of historians of criminality has shown the great variability of the concepts of crime and criminals in space as well as in time. We still have to define the structures of these collective representations of crime according to the social classes that perpetuate them. Here we come across a problematic where interest in the long term deep Braudelian time seeks out a difficult association with the deeply-rooted discourses, images and practices of criminal justice.

Crime and Punishment in the Middle Ages and Early Modern Age

One level of discourse comes from the sources of law, particularly from judicial norms and doctrines primary criminalisation. Furthermore, in a period of a crisis of power in place of the cities, this doctrinal discourse betrayed the urban magistrate's shifting preference for monarchical power, shifted over time from divine power. By criminalising theft, homicide and then certain sexual acts, the parliaments of 19th century bourgeois societies, via their environment and their electorate, also revealed the evolution in representations of crime.

Similarly, by decriminalising acts committed in privacy, but by criminalising post-war political, commercial or economic acts, are not post-Cold War societies transposing the social disruption between the small group of dominant classes and the mass of people in social stagnation?

In certain regions of Spain, the Inquisition was concerned less with pursuing heretics than those who committed acts deemed as deviant by local populations In the 19th century, abortion was frequently prosecuted in bourgeois societies even though it rarely led to actual convictions. The emergence of corporal punishment and its progressive replacement by imprisonment, as well as the role of forced labour have all been the object of much theorising and research.

These is the well-known analysis of Michel Foucault on the re-orientation of the focus of repression from the body to the soul of the delinquent, and else the parallels drawn by Rusche and Kirchheimer between labour crises and the recourse to forced labour and imprisonment, or the use of fines and monetary crises. Here we enter the domain of hypothesis, precisely because research on the history of regulation is rare. Western history has presented only typical models of conflict regulation.

First there were violent resolutions such as private vengeance, then peacekeeping methods through mutual forgiveness and the re-inforcement of social links between quarrelling parties.

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These were followed by measures of repression through stigmatisation and exclusion, with focus on specific scapegoats or certain acts witches, vagabonds, sodomites, businessmen, politicians , and pardon appeared as a sign of favour of a powerful sovereign towards his weaker subjects. However, there were also informal means of conflict regulation. The increasing complexity of social relations seems to correspond to an increasing complexity of the means of conflict regulation and its offshoots.

The study of these representations is a challenging yet promising domain and combines the analysis of both theoretical and practical texts with figurative representations of justice, based on judicial iconography and archeology. The image of justice, the representations of judges and the act of judging, models of judicial space from the church to the court house , and religious references to the act of judgement are so many areas where themes important to anthropologists and law historians encounter the preoccupations of philosophers and sociologists From a historian's point of view, these studies can only have meaning if closely linked with the analysis of the rituals and practices of justice systems as they are revealed in archives.

Some research in this direction seems to be taking shape in long term analyses. Rural populations resisted this intrusion, but also revised it and used it in turn to serve their own interests, as is revealed in studies on the strategies of litigation, which existed not only for elites in higher jurisdictions 81 but also for local peasants before consistory courts or local magistrates Due to the methodological statements of authorities on the selection of cases to be heard in court, the role of judicial administration in social regulation rapidly became of interest to researchers.

Sharing many of the concerns of the new history of institutions, historians have revealed the diversity of administrative clusters and the highly organised responses to the problem of crime in Medieval and Early Modern towns and villages in the West. Beyond this diversity, the steady growth of the administrative side of justice, best symbolised by the generalisation, on the Continent, of the romanocanonic criminal trial 83 , is indicative of the increasing modernisation of justice systems in Europe and the increasingly monopolistic role of judicial courts in the regulation of conflicts.

With modernisation, events were recorded, procedures were rationalised and the exercise of justice was bureaucratised. Autonomous cities held on to their institutions until their full integration into nation states. Local practices survived in communities and recourse to official justice systems is but one indication that local social conflict resolution efforts had failed to maintain order. Nevertheless, the ponderous practices of administrations were settling in. Throughout the diversity of traditions English or Continental, northern or Mediterranean , judicial administrations tended to be organised and structured into a hierarchy following the monarchical model.

The genesis of the modern state is an area of research that has had enormous success in the past few years in Europe Nevertheless, much research on the history of crime has revealed that the role of justice, and in particular criminal justice, has hardly been integrated into different studies of the origins of the modern state. One of the seminars in which Herman Diederiks participated in the last few years tried to develop this aspect on the basis of empirical research, regional analyses and further theoretical readings It seems that what is at stake in the stronghold of institutional and judicial functions is mainly symbolic, territorial and political.

It is symbolic in that the control of the power to punish or pardon is more than a means for a local or central power figure to profit from economic surplus. It serves to make the population aware of the existence of a power far superior to local powers, i. It is territorial because the command of the systems of social control justice, police is a means of extending the implantation of the state to frontier or rebellious zones. It is political because, in the end, alongside the control of taxes and war, control of the justice system constitutes a monopoly over legitimate violence which in turn legitimises the state, the successor to the city and the monarch as the sole recourse to social peace.

Who defines crime? Who is defined as a criminal? What are the links between offirial definitions and the representations of social groups or classes of victims, witnesses or offenders involved in acts committed? How do the punishment, the crime and modes of regulation contribute to the construction and the deconstruction of identities, collective psyches and social mythologies?

Through its diversity and complementarity, the work of crime historians without any doubt offers important material for the study of social regulation. We have recently updated our Privacy Policy. The site uses cookies to offer you a better experience. By continuing to browse the site you accept our Cookie Policy, you can change your settings at any time.

Scarborough editor Sign in to write a review. Not available. This item has been added to your basket View basket Checkout. Crime and subsequent punishments are fundamental issues identifying every society. The articles in this volume study medieval laws and documents reflecting on vices, crimes, and wrongdoings and thus give a profound analysis of the premodern world in its development in social, economic, legal, moral, and ethical terms.

Added to basket. Classics: A Very Short Introduction. John Henderson. Classical Literature. Richard Jenkyns. The Mabinogion. Sioned Davies.