Changing Attitudes to Justice

The particular combination of legal, religious and political developments that led to an increase injudicial violence between 1400 and 1600 began to unravel during the following century, both on the Continent and in England.

Historians have argued that the period following the end of the Thirty Years War in 1648 marked an important watershed in the internal organisa­tion of European states. The development of more efficient taxation systems and standing armies improved internal security. In France during the second half of the seventeenth century the number of royal officials maintaining public order mushroomed, including the creation of a new dedicated police force in the capital (1667). Other European states, with the exception of England, followed suit and developed police forces. As a result of these changes, states were in a better position to subdue discontent and no longer required gruesome spectacles to inspire fear among the populace.

These political changes did not, for the most part, result in formal changes in criminal law. One exception was France, where a lively debate about abolishing torture occurred just before the promulgation of a new criminal code in 1670. In the end, torture remained legal, but all the loopholes that had allowed judges to torture suspects more than once were closed; as a result, confession rates of defendants, increasingly aware they would only be tor­tured once, collapsed.

Even in states where no change in penal law occurred, fewer criminals were tortured and fewer still executed. In Nuremberg, the execution rate dropped precipitously during the second half of the seventeenth century. Whereas between 1541 and 1600 an average of 7 individuals were executed each year, the rate declined to 3.5 per year between 1601 and 1660 and to 2 per year between 1661 and 1743.^[649] Although not all jurisdictions show such a consistent pattern of decline in absolute numbers, in most places executions declined as a percentage of final sentences. Overall, fewer homicides and major assaults were prosecuted by the mid eighteenth century due to an apparent real decline in interpersonal violence.

Executions remained important state rituals during the eighteenth century, but breaking on the wheel, drawing and quartering, drowning and burning at the stake were gradually abandoned in favour of more efficient hanging and beheading. Authorities came to realise that excessive violence was not always effective: it did not eliminate witches or murderers, preyed on the vulnerable, and often alienated important power brokers in the community.

Some thinkers critical of witch crazes specifically raised insistent ques­tions about the morality and efficacy of judicial violence. Johann Weyer, Friedrich Spee and Augustin Nicolas, all of whom published between the 1560s and the 1680s, attacked over-reliance on torture in the prosecution of witches and questioned whether witchcraft should be considered an excep­tional crime warranting the death penalty. Positing that many accused witches were mentally unstable and that weak women were easily led into confessing falsehoods under torture, these authors argued that the danger of witches had been exaggerated and that their prosecution had resulted in abuses.

Changes in the standard of proof contributed to the decline of torture and execution in some jurisdictions. Whereas medieval legal theory demanded a full proof, which almost always involved a confession of guilt by the suspect, by the eighteenth century some judges were abandoning this principle to adhere to a lesser standard, proof beyond reasonable doubt. When Pierre Jean was accused of theft in Geneva in 1679, he refused to confess to the main charge: that he had broken into and stolen from the safe of his employers. Despite being tortured repeatedly, Pierre insisted that he had never touched the safe. He nevertheless confessed to several other thefts and, because the circumstantial evidence pointing to his guilt was extremely strong (only he had access to the safe during the crucial hours when the theft occurred), the judges deemed the case sufficiently proven and he was hanged.^[650] Throughout the eighteenth century European states continued to practise a very violent form of justice against a very small minority of defendants whom they felt most threatened public order. Jean had betrayed the trust of his employers and violated the master-servant relationship, thereby undermining the foundation of the social hierarchy; these transgressions justified his torture and execution.

The use of medical experts also became an increasingly important element of some criminal trials. The testimony of doctors, surgeons and midwives both cemented convictions in some cases and mitigated sentences in others. This evolution is particularly notable in the prosecution of infanticide. Throughout the early modern period thousands of women were prosecuted for killing their newly born infants. During the seventeenth century medical evidence was often used to prove that the mother had just given birth or to demonstrate that the infant had been strangled, hence strengthening the prosecution's case against her.

Changes in Christianity also diminished the violence of judicial practice. By the end of the seventeenth century new developments in both Catholicism and Protestantism, including a focus on private prayer and more emphasis on the conscience rather than the body of the sinner, meant that the pain of torture and execution increasingly lost its positive valence. Although execu­tions retained a Christian tone during the eighteenth century, print descrip­tions and artistic representations increasingly focused on public order, rowdy crowds and the need for state power.

The shifting role of religion in public life often referred to as secularisation or desacralisation also moderated the punishment of sin. Although European states remained officially Catholic or Protestant, by the middle of the eight­eenth century some degree of religious coexistence among Christians devel­oped and even Jews slowly gained some civil rights. In this changing context, sin was increasingly considered to be a private matter better handled with religious instruction and fines rather than with corporal punishment. The evolving judicial treatment of suicides is emblematic of this shift. During the sixteenth century individuals who committed suicide were considered to have abandoned God and, as a result, judicial courts insisted that their bodies be dragged through the city streets, burned or thrown into rivers, and denied burial in consecrated ground like those of other criminals; in contrast, by the late eighteenth century self-inflicted death was increasingly decriminalised and framed in medical terms.

In addition, European elites were becoming uncomfortable with many forms of violence, including public execution. Whereas traditionally European nobles (and many urban professionals who had noble aspirations) affirmed their masculinity and honour through the conduct of private feuds and the practice of duelling, by the eighteenth century gentleman increasingly took the view that violence should be confined to just war in the service of the prince and the patrie. In the polite society of the king's court and the urban salon, a code of etiquette known as ‘civility' allowed elite men to redefine their masculinity in terms of cultural refinement, including possessing good taste in music and literature and conversing politely with women. As elites redefined their own identity, their awareness of the difference between their sensibilities and those of the common people increased. Feeling disgust at the sight of public execu­tions became a sign of cultural sophistication and distance from one's social inferiors. As early as 1674 Constantin Huygens, a Dutch statesman, urged stadholder William III to demolish the permanent scaffold in the city centre of The Hague, arguing that it was ‘a too noble and glorious [a] place to be perpetually embarrassed by the sight of wheels and gibbets, to the great chagrin of so many residents of quality'.^[651] William Hogarth's engravings of London executions in which grotesque commoners were depicted laughing and carous­ing in the face of death served a similar purpose.

Over the course of the eighteenth century philosophes associated with the Enlightenment developed this discomfort into a reasoned critique of judicial violence. Montesquieu's comparative analysis of global political systems (1748) idealised the practice of criminal law in England where, he argued, consider­able safeguards existed against unlawful arrest. He also compared European justice to that of ‘despotic' polities such as China and the Ottoman Empire, in which torture and execution were thought to be rampant. By linking good government with judicial restraint, Montesquieu and others implicitly chal­lenged European monarchs to reconsider their penal practices. These com­ments did not fall on deaf ears, and states began abolishing torture during the first half of the eighteenth century: Sweden as early as 1722, Geneva in 1738, and Prussia in 1754. Frederick the Great, king of Prussia, self-consciously embraced the ideals of the Enlightenment and sought to establish a rational, efficient judicial system that avoided the excesses of the past. Nevertheless, we should not overstate the impact of Enlightenment thinkers on the abolition of torture. When in 1780 France abolished investigative torture applied before sentencing, the change was justified with reference to inefficacy, not abuse: the king surveyed a number of magistrates who declared that torture ‘always seemed to them to be useless because it only rarely extracted the truth from the mouth of the accused'.^[652] Torture, which had been in decline for over a century, was abolished in part because it had become peripheral to proving most crime.

By the time Voltaire and Beccaria published their passionate diatribes attack­ing the violence of European justice in the 1760s, many of these changes were already in place: some states had already outlawed torture and executions were a tiny percentage of punitive sentences. Both authors condemned torture, called for greater judicial transparency and advocated for the end to all execu­tions, all important contributions to the development of human rights dis­course. Their publications may have encouraged Austria, Russia, Spain, Italy and the Netherlands to abolish it in the decades to follow. Doing so was useful to states eager to bolster their authority by projecting an image of moderation and rationality just as two centuries earlier brutal descriptions of painful execu­tions had been thought effective propaganda in more uncertain times.

Nevertheless, Voltaire and Beccaria also mischaracterised the justice of their own day as overwhelmingly abusive, violent and ‘barbarous', a radical distortion of actual penal practices that continues to influence us today. Defining torture and execution as archaic and themselves as modern and ‘enlightened', Voltaire and Beccaria constructed binaries that profoundly influenced Foucault and other scholars who define modern justice in contrast to the violence of earlier centuries.^[653] Recognising that during the early modern period most suspects were not tortured and most criminals not subjected to corporal punishment enables us to transcend these arbitrary divisions between pre-modern and modern in order to investigate important historical continuities, such as the use of torture by Western democracies in recent decades, that plague criminal justice practice today.