Punishment

The idea that executing criminals was a symbolic display of state power and an effective deterrent for the common people was largely unques­tioned until the eighteenth century. Executions were major civic events, paid for by the state and attended by hundreds and, in larger cities, thousands of spectators.

Executions were violent public rituals meant to inspire awe and obedience to God and the state. In actuality, however, urban crowds responded vari­ably, usually watching solemnly, but at other times harassing the executioner for killing someone they felt had been wrongly convicted, or mocking the criminal's suffering by throwing dung and other objects at him.

Crowds also identified with the suffering of the criminal, in large measure because Christianity taught that pain could bring one closer to God. Early modern Europeans were accustomed to pain, not only due to the harsh conditions in which they lived but because Christianity celebrated its salvific potential. Catholicism in particular was preoccupied during the fifteenth and sixteenth centuries with Christ's suffering on the cross. The church encour­aged laypeople to identify with Christ and to embrace their own pain - by fasting and flagellation, through illness and death, or at the scaffold - to do penance for their sins. The suffering experienced by criminals was the ultimate spiritual test that, if passed, washed away their sins and rendered them ready to meet their maker. A fifteenth-century Bolognese manual for confessors who consoled convicts in the hours before their death instructed those on death row to identify with Christ:

Do not care for your body, how it must be tied nor how it must be led in sight of all the people. In these hours and at these moments, you must remember that our LordJesus Christ was given into the hands of sinners, and how they took him and tied him, and how they harshly led him like a thief, and how much the people of Jerusalem scorned him.^[644]

Although Protestants rejected penitential practices, they continued to embrace the spiritual potential of suffering as a test of one's faith well into the seventeenth century. As a result, both Catholics and Protestants witnes­sing an execution might construe the convict's suffering as just punishment or (particularly if endured bravely and with an open heart) as penance that might reconcile the sinner with God, or even as proof of innocence.

The rising tide of judicial violence after 1400 can also be explained by the efforts of secular states to centralise authority. Renaissance Italian oligarchs, often troubled by rival factions or popular discontent, sought to bolster their power through the exercise of judicial violence. The use and abuse of judicial power in factional politics was one of the features of the Italian peninsula and is difficult to unravel from the culture of vendetta. The political uses of judicial violence in the city-states of Italy are better documented than those of other parts of Europe, but were by no means exceptional. Everywhere, secular authorities sought to keep the peace by relying more and more heavily on judicial violence.

Keeping the peace was certainly rendered more complex by the challenges posed by the division of Western Christendom after 1517. A century of religious dislocation and intermittent civil war in France, the Low Countries and Germany encouraged vindictive violence in the community and an intensification of judicial violence. In the Dutch-speaking lands, the Protestant leanings and rebellious tendencies of the local population led the Spanish to impose the Inquisition, a development that eventually led to over 1,000 martyrdoms and sparked a revolt; in France, decades of intermittent civil war led to feuds, ambushes between noble rivals and deadly attacks on urban neighbours by Catholics and Protestants.

Another feature of the Reformation and Counter-Reformation was the gradual decline in the power of church courts, which were concerned largely with the reconciliation of the sinner through penance, and their replacement with secular courts more focused on punishment. By the sixteenth century and earlier in some jurisdictions, secular courts prosecuted not only indivi­duals for murder, theft and treason but increasingly moral offences like adultery, sodomy, rape, witchcraft and blasphemy. In the Protestant cities of Germany, new secular marriage courts reconciled estranged couples and authorised divorce but also prosecuted aggressively those who committed incest, bigamy and adultery. Secular courts punished sinners because they felt responsible for maintaining Christian unity and many sins were considered serious enough that the defendants were tortured and, if found guilty, punished with pain. During the sixteenth century it was not unusual for secular courts to slit the tongues or brand recidivist blasphemers, to flog and banish adulterers, and to burn convicted witches at the stake. An exception to the rule is England, where church courts maintained widespread jurisdiction and moderated punishments for sin throughout the early modern period.

Despite the fact that acquittal rates in early modern Europe were notor­iously low, the traditional reputation of early modern justice as uniformly severe and violent is no longer sustainable. Many evaded justice and even among those who were prosecuted, violent punishments were only imposed on a minority.

Finally, most crimes were not serious enough to warrant extreme mea­sures such as torture and execution, which were labour-intensive and expensive (executioners, though sometimes considered social pariahs, could nevertheless enrich themselves). The beggar who stole bread in the market, the young woman pregnant with her fiance's child, the young man who uttered words against God in front of church, the labourer who fought a fellow worker after a night’s drinking - these everyday criminals were dealt with by more moderate means.

Whereas historians traditionally assumed that pre-modern prisons were used only to hold prisoners during a trial, recent research shows that incarceration was a key element of penal practice, particularly in France, Italy and Spain. Inquisitors punished the majority of convicted heretics with long prison sentences designed to reform their ways as early as the four­teenth century. This practice continued during the early modern period: perhaps the most famous victim of inquisitorial justice was the Italian miller Menocchio, whose unique cosmology earned him a punitive prison sen­tence in the 1580s, an experience so damaging to his health and well-being that he temporarily recanted his idiosyncratic religious beliefs.^[647] But secular courts also employed penal incarceration on a regular basis. As early as the fourteenth century Florence, Venice and Bologna established large and permanent prison buildings that were staffed by jailors paid in part by the city. Family members were expected to visit prisoners regularly to provide food and clothing; otherwise, prisoners were subjected to a harsh bread and water diet as well as to the extremes of hot and cold weather. Medieval Italian jails housed prostitutes, men bearing illegal arms, gamblers and men convicted of domestic abuse. Nevertheless, the vast majority of prisoners in Italian and French jails before 1600 were guilty of debt and bankruptcy; often the prison sentence was employed as a means to pressure the debtor’s family to raise the necessary funds.

By the early seventeenth century a different form of prison, known as bridewells and houses of correction, was established in many English, Dutch and northern German cities to house beggars, prostitutes and indigent youth for weeks at a time, to try to teach them useful work skills and transform them into productive subjects/citizens. These institutions were notoriously unsuccessful at reforming their charges and uniformly costly: many German prisons had to close because they were too expensive to maintain. To publicly fund the incarceration of criminals for long periods of time was an expensive proposition that most European states could not afford. In England, bridewells were not able to prevent the expansion of a population of ‘sturdy beggars' considered resistant to reform. Prisons were not a new option for Europeans in the eighteenth century, as Foucault and others suggest, but they became increasingly attractive as questions began to be raised about the usefulness and moral justification of torture and execution.