Early Modern Punishment

A/N: Part I, Paper 16 essay from Lent term of the 2008/09 academic year. I was supervised by Dr. M. Laven at Jesus. 

Many would contend that the chief reason for the violent punishments of the early modern period was their value as a deterrent. This is a justification which has retained a large body of support right up to the present day. Yet no matter how painful and fierce the punishment devised, crimes continued to be committed. Therefore there must have been other reasons for the centrality of physical punishment to the judicial system. Juette points to the cost of institutional punishment, such as prisons, as part of the pragmatic reasoning behind punishment of the body. However I would suggest that the true answer lies in more theoretical justifications. Foucault argues that early modern punishment was solely concerned with the body. Early modern understandings of the self suggest the opposite; by punishing the body physical punishments attacked the ‘outer’ self. Yet in doing so physical punishments also inevitably attacked the ‘inner’ self. Intrinsically bound up with the early modern preoccupation with honour, physical punishment left a visible mark for the whole community to see.

Before looking at these reasons for the centrality of punishment of the body to the early modern judicial system it is first necessary to consider the central assumption of the question. Was punishment of the body central to the judicial system? It was certainly an important part of the system. The number of capital offences increased; In England the number of capital offences grew from around fifty in 1603 to over 200 by 1815. Yet in practice such punishments were carried out far less often than one might expect. Capital punishment in particular was often avoided through successful petitioning. In England for example in 1603 the chances of those sentenced to it actually being executed was one in four. By 1815 that figure had fallen to one in ten. Davidson found that fines or banishment were the usual punishment for sexual crimes in Italy, despite the fact that Pope Sixtus V had decreed they were capital offences in 1586. Scribner even found that in early modern Germany criminals were issued with ‘Uhrfehde’, documents which acted as a kind of criminal record and negated the need for punishment of the body. However even with these exceptions in mind physical punishments were still a common occurrence; and certainly the threat of harsh physical punishments was ever present. Looked at in this way it is fair to say that punishment of the body was central to the early modern judicial system.

Why then was punishment of the body so important to the early modern judicial system? One reason that is perhaps not immediately apparent is the way in which it promoted equality. The Florentine authorities of the sixteenth-century claimed that corporal punishment was preferable to fines as the poor could not afford to pay them. This equalisation could work the other way too; the son of a noble could meet the same violent end under the law as the son of a peasant. It would be wrong to assume that practice necessarily followed theory however. Whilst there was supposedly equality before the law the reality was that criminals from the upper orders were only rarely subjected to the humiliating physical punishments. Where cases were brought, if the accusers could not be bribed into silence, they could afford legal professionals and their respectability and status would have weight with the judge. So whilst for example an adulterous woman of the lower orders might find herself before the courts, the upper orders were likely to deal with the matter privately so as to avoid scandal and public loss of faith. So whilst the theory of equality before the law was attractive its constant undermining in practice means it cannot have been a primary reason behind the centrality of the punishment of the body to the early modern judicial system.

The more pragmatic concerns with finances and social realities do however hint at another possible reason for the centrality of bodily punishment to the early modern judicial system. Alternatives such as prisons were simply too expensive. Take for example the development of early workhouse like institutions to deal with vagrants and the able bodied poor. Such institutions proved costly and ultimately ineffectual; Jacob Stroit argued in 1605 that the houses of correction established by the English Poor Relief Act of 1576 served simply as ‘a step and an inevitable degree unto the gallows as most me do observe’. In Germany and Scandinavia experiments with such institutions were soon abandoned in favour of the more usual corporal punishment. Prisons were generally seen as merely somewhere to hold prisoners awaiting trial or execution; although there were some exceptions like the Parisian hospital to hold fallen women founded in 1656. The reasons for this under use of prisons were primarily fiscal. If a member of the household was incarcerated their income was lost, and might sink the rest of the household into poverty. In addition if the accused had dependent children or elderly or sick relatives, the care of these might fall to the community which would mean further expense. It was for this reason that the husband of Maria Lautt made such exhaustive attempts to save his wife from imprisonment or banishment in the 1670s. On her eventual banishment the clerk recorded she had only been spared it so long thanks to her ‘good, pious husband, as simple-minded as he was patient.’ The reality was much more likely to have been that he needed his wife’s income and help in the domestic setting rather than unwavering devotion in the face of her continued adultery. However whilst such examples might provide reasonable justification for the use of corporal punishment, they do little to explain the reliance on capital punishment, which would inconvenience the family and community indefinitely.

Maybe the real reason for bodily punishment being so central to the early modern judicial system was simply that it was indispensable. At a time when the policing system was still embryonic and alternatives such as prison and exportation were costly or unfeasible, it stands to reason that bodily punishment might provide the backbone of the justice process. Even in cases where it was not carried out the mere threat of such vicious punishments were deemed invaluable by contemporaries. Undoubtedly it held more weight than the German Uhrfehde. In 1535 for example Claus Straubinger told the mayor that even if he were bound to keep the peace seven times over, he would still ignore it. This was exactly the sort of attitude the authorities were keen to stamp out and by making examples of criminals they hoped the message would get across. As the Florentine ufficiali di notte remarked in 1434 of sodomites: ‘if, out of every thousand, just one is punished fully… all of them will fear.’ Yet the fact remains that no matter how harsh the punishment crime continued to be committed. Even as crowds gathered to watch thieves die a slow, painful death at the gallows pickpockets seized the opportunity to steal. Indeed even amongst those who were endured physical punishments many reoffended. Rublack, for example describes a female thief who, having previously had her ear mutilated, was sentenced to have the ear cut right off. So whilst the perceived deterrent of physical punishment played a large part in its centrality to the early modern judicial system, its obvious flaws must mean that there was something else underpinning its perceived indispensable nature.

Foucault claimed that for much of the early modern period punishment was concerned only with the body, rather than the soul. Bearing in mind early modern understandings of the self this would imply that punishment sought to impose only upon the outer self. So, for example, a thief might be whipped but then the matter was dropped. It had no impact on his future of his character. Rublack rightly disagrees with this analysis. Early modern people believed that the inner self almost invariably manifested itself in the outer self; Castiglione for example writes that a bad tempered person will also be physically ugly. Therefore mutilating the body was a way of showing the world the sinfulness of the criminal’s inner self. The same idea is evident in the practice of torturing the accused; attacking the outer self was seen as a way into the truth of the inner self. Although it was understood that false confessions could be made under torture; Maria Sauer said of her confession of infanticide in1699 that she had had to ‘lie out of pain’. But in general this link between the two selves was understood to be irrefutable. The branding of vagrants for example was just a way of providing an obvious sign of their ‘lazy’ and criminal nature to everyone they encountered. Bodily punishment then was about more than simply inflicting pain.

Connected to this idea that punishment of the body was meant to mark out the criminal is the concept of honour. Many historians, such as Lyndal Roper, claim that honour was fundamental to early modern identities. Women were at pains to protect their honour, understood by contemporaries to be their chastity, and both sexes were quick to defend their honour from insult or attack. Defamation was viewed as a serious crime in this period and the law courts were often called upon to settle honour disputes. Punishment of the body was humiliating in its visibility. Branding and mutilation were permanent markers of the criminal’s loss of honour. Public whippings or a spell in the pillory might not have had the same physical permanence but their public nature resulted in the same loss of honour. In a society where communities were close knit such humiliation was not something easily or quickly forgotten. Rublack describes women who could still freshly recall such public punishments of neighbours from over forty years earlier. Similarly the public executions and display of the corpses was more than just a simple deterrent to any with likeminded intentions. It was the ultimate humiliation for those concerned. Fueme writes of the execution of Giovanna Bonanno for supplying poison. Her body was hanged from a high gallows to symbolise the severity of her crimes; from that height it would be most visible and so allow more people to see the corpse. Punishment of the body was deemed so central because it simultaneously punished both the outer and inner self. The outer self suffered the physical pain, whilst the inner self was left to deal with the psychological pain of the loss of face associated with the visible punishments.

 In conclusion then punishment of the body was so central to the early modern judical system for a number of reasons. On a practical level it negated the need for expenditure on penal institutions and enabled criminals to be dealt with quickly and decisively. Whilst on a more theoretical level corporal and capital punishment offered the useful myth that all could be equal before the law. Its role as a deterrent was deemed invaluable by many contemporaries and this was the major argument against its abolition well into the nineteenth century. Yet I would contend that underlying its role as a deterrent was the principle reason for its centrality to the system; the way in which it could simultaneously deal with the body and the ‘soul’ to use Foucault’s terms. Far from singling only one out for punishment, physical punishments caused pain to the body or ‘outer’ self, whilst their public and visible nature caused pain to the ‘soul’ or ‘inner’ self. By injuring the individual’s sense of personal honour punishment of the body thus acted as a doubly effective punishment and no doubt was supposed to be twice as effective a deterrent because of it.

• Cohen. T. and Cohen. E; Words and Deeds in Renaissance Rome: Trials before the Papal Magistrates, (1993), intro, ch. 4. 
• Foucault, M; Discipline and Punish: The Birth of the Prison, (1977), ch. 1. 
• Juette, R; Poverty and Deviance in Early Modern Europe (1994), chs. 8, 9.
• Brackett, J. K; Criminal Justice and Crime in late Renaissance Florence, 1537-1609, (1992), intro, ch. 5. 
• Castan, N; ‘The Arbitration of Disputes under the Ancien Regime’, in Bossy, J. ed., Disputes and Settlements: Law and Human Relations in the West, (1983). 
• Cattelona, G; ‘Control and Collaboration: The Role of Women in Regulating Female Sexual Behaviour in Early Modern Marseille’, French Historical Studies, 18, (1993). 
• Scribner, R. W; ‘Police and the Territorial State in Sixteenth-century Wuerttemberg’, in Kouri, E. I. and Scott, T., eds., Politics and Society in Reformation Europe, (1987).
• Chaytor, M; ‘Husband(ry): Narratives of Rape in the Seventeenth Century’, Gender and History 7, (1995). 
• Leboutte, R; ‘Offence Against Family Order: Infanticide in Belgium from the Fifteenth to the Early Twentieth Centuries’, in Fout, J. C., ed., Forbidden History: The State, Society and the Regulation of Sexuality in Modern Europe, (1992). 
• Muir, E. and Ruggiero, G; eds., History from Crime, (1994), ch. 3.
• Davidson, N; ‘Theology, Nature and the Law: Sexual Sin and Sexual Crime in Italy from the Fourteenth to the Seventeenth Century’, in Dean, T. and Lowe, K. J. P; eds., Crime, Society and the Law in Renaissance Italy, (Cambridge, 1994). 
• Rublack, U; The Crimes of Women in Early Modern Germany, (1999), chs 2-3.