The occurrence and types of crime, as well as the development of institutions of trial and punishment during the years 1500–1800, may be described as moving along lines integral to general trends in the making of early modern Europe: the formation of stratified societies based on elements of class and patronage and the development of centralized states. It is easier to arrive at some general conclusions toward the end of the period than at its beginning.
State Jurisdiction
By 1500 the power to define crimes had all but moved out of the realms of religion, family, and clan into a new and separate sphere, that of the state. Acts amounting to crime were increasingly determined, not by aggrieved parties arguing their case before some form of public assemblage, but by monarchs and princes assisted by combinations of trained professionals and appointed amateurs, operating ever more efficient bureaucratic institutions. Likewise, punishments were constituted in formal law codes and meted out according to standards reflective of societies constituted by groups of unequal individuals. People guilty of the commission of crimes were no longer viewed as ordinary members of society who had gone beyond acceptable behavioral limits acknowledged by religion and tradition (sinners), but as types of people whose lifestyle of poverty predisposed them to a life of crime, creating and spreading an "underworld" of deviants who threatened to overturn decent society. The function of the legal and punitive apparatus, therefore, was changing from capture, trial, punishment, and resolution to deterrence, surveillance, suppression, and exclusion.
At the beginning of the period, definitions of "crime" varied among a multiplicity of locales, regions, states, and between various jurisdictions—communal, seigneurial, ecclesiastical, and royal. There existed no uniformity of opinion as to what kinds of acts should be construed as crimes; therefore, the definitions of "crime" were as various as the many locations where it occurred. In areas where urbanization was the rule, as in northern and central Italy, large and small towns had criminal statutes on their books inherited from the Middle Ages, when communal governments had won their freedom from the jurisdiction of either the papacy or the Holy Roman Empire. Particularly in northern Italy, these laws derived from tribal law (Lombard Law), the criminal codes of Justinian, and the statutes deemed appropriate by local officials. To these were added, by the sixteenth century, the decrees of the princes, ruling over territorial states in increasing number, a power deriving from the Roman emperors. In other societies of Europe as well, tribal law was enshrined in written codes as customary law, along with the statutes of local officials with criminal jurisdictions, to which were added the laws of kings and princes.
This new sphere of state jurisdiction expanded considerably, squeezing to the margins ecclesiastical jurisdictions, its medieval predecessor in the definition and trial of most crime. From the sixteenth century on, ecclesiastical courts only exercised authority over transgressions such as, in England, for example (prior to the dissolution of the monasteries by Henry VIII in 1536), working on feast days and sexual misconduct (fornication), earning them the nickname of the "bawdy courts." After the Reformation reduced the size and scope of the Catholic clergy, it was only in Catholic countries that the church retained jurisdiction over its personnel, in Italy, for example, exempting them from trial in secular tribunals.
Despite the increasing authority and judicial power of the developing state, it would be a mistake to say that the law reflected only the interests and desires of princes. Even though members of the royal family and the princely inner circle were not tried and punished in the legal system for their transgressions, because to admit to bad behavior that the princes were attempting to discourage (in part by their comportment and that of their peers) among their subjects weakened their efforts to lead by example, their professed social values were often identical to those of their subjects. Everyone agreed that theft, assault, rape, and murder, for example, were not to be tolerated because all were disruptive of the conduct of everyday life. Likewise, laws that punished those who sold grain at exorbitant prices during famine should be punished (on the basis that such practice was a form of usury).
On the other hand, many laws clearly did protect the interests of the aristocracy at the expense of the masses of people. In the Tuscan Grand Ducal State, for example, the Medici grand dukes criminalized hunting and fishing in most of their state for everyone but themselves and their aristocratic comrades. Those others caught hunting or fishing could be punished by a series of fines. Clearly, from the sixteenth century on, from the anti-hunting and fishing provisions of the Medici to the infamous "Waltham Black Act" of 1723 in Britain—a series of about a hundred forest laws based in Windsor that prohibited the poor from hunting there under pain of execution—the power to define crime passed into the hands of the princes, becoming a matter of state.
The Typology of Crime
A list and discussion of all types of crimes is impossible, but two significant trends in the typology of crime can be addressed: property crimes and crimes against persons, violent and otherwise, and the incidence of these crimes in rural, compared to urban, environments. Historians of crime influenced by Marxist economic theory have argued that these conjoined issues ride atop the deeper and more profound current then transforming Europe from the medieval to the modern: the development of industrial capitalism. Because the economy of medieval Europe did not produce a plenitude of goods available for theft, nor were the means of production in this agrarian society concentrated in the hands of a few capitalists (thus causing widespread poverty and the need to steal to survive), these historians argue, the majority of crimes were crimes of violence against persons. The onset of capitalist society reversed the situation in early modern Europe, multiplying many times the availability of goods and the extent of poverty, so that thebroadtypology ofcrimeswitched from crimes of violence to crimes against the property of the rich and well-to-do committed by the desperate poor. The agrarian society of the medieval period, with its population scattered across a pastoral landscape, concentrated its violence in its few crowded and noisome cities. Conclusions based on the research of historians of crime since the 1970s, however, disprove this thesis.
More recently, historians of crime have produced research supporting a new thesis that requires a new explanation. Crimes of violence seem to diminish dramatically in frequency in the seventeenth century, but the trend in crimes against property seems to remain stable. So, while Europe became a much less violent place, the rates of property crime remained level. What is surprising is the conclusion that cities were not the locations for the majority of violent crime; that honor goes to the countryside. To explain this conclusion, historians of crime have resurrected Norbert Elias's arguments in The Civilizing Process (1939), which seem to better explain their results. Elias argued for the centrality of the royal courts in promoting the domestication of society from the sixteenth century on. The princes and their peers at court not only set the example for acceptable behavior, emphasizing self-restraint, but rulers also monopolized the means to commit violence within society. Consequently, increasingly complex European societies became peaceful on the domestic level, with low incidences of violent crime. (During this same period, it is also true that Europe engaged in vastly increased levels of violence in wars between its societies and in the larger world.)
Feuds and family honor. Explanation of the types and incidence of violent crime entails explication of a number of important social, political, and economic factors. One reason behind the incidence of violent crime is that assaults and murder were usually the result of the social importance of honor, particularly in Mediterranean Europe. Family and clan were the foundation of European society well past the sixteenth century, but these organizations of people were held together by more than ties of mutual affection: often these groups adhered together to achieve economic and political goals that also tested their mutual loyalty. Fulfillment of basic male roles—son, father, husband, and loyal friend—was required: these men were aggressive, out in society, and politically engaged. Females submitted to the protection and direction of their male relatives. Women were assigned more passive roles as daughters, mothers, and wives, even though many worked in agriculture, business, and industry (cloth workers in Florence, for example). These roles were defined by tradition and by religion; there is nothing surprising here. The reason for going briefly over this familiar ground is that these roles and their constraints shaped the reasons for and the participants in violent crime. Incidences of assault, murder, and rape (another violent, not sexual, crime even then) were overwhelmingly the provenance of males. Violence was often required in the fulfillment of male roles in defense of the honor (read: family or male honor) of women. Violence was necessary to achieve the political and economic goals of the family or clan, and this was true at every level of society excepting the most destitute in rural areas, whose poverty and lack of connections excluded them from the action.
In the Mediterranean region of Europe, family and clan competition, which extended across political borders as well as the physically defined lines between city and countryside, produced the endemic violence of the feud. In urban and in rural areas family- and clan-based feuding was both political and economic in nature. Political goals were often pursued through violence, while economic relations were also protected with violent means, especially in border regions. The cataclysmic episodes of violence that shook many of Italy's major cities during the Renaissance are legendary. By the sixteenth century, however, these violent eruptions, which usually paralyzed political life, had come to an end in the larger cities. In the smaller towns and centers of rural society, located in mountainous border regions, and at the borders of major territorial states, however, episodes of feuding continued to occur, even into the modern period. Feuding was endemic into the seventeenth century in the hinterland of the Tuscan Grand Duchy, periodically roiling the towns of the Romagna. In the mountains of Genoa, feuding continued on the fringes of the Genoese state, coming to an end only with the immigration to America of a significant portion of the population in the nineteenth century. The causes for feuding in these regions were economic and cultural: economic, because the poor quality of land available for agricultural production, and the remoteness from seaports where trade might have been engaged in, meant that subsistence was impossible without the supplemental activity of smuggling, which occurred over routes for which clans fought each other for control; cultural, in that honor came into play in these contests, and honor could only be defended with violence. In the major cities, consolidation of the ruling classes, achieved as a group as in Venice, or more commonly behind one family, as with the Medici of Florence, and the increasingly useful and more peaceful alternative of litigation, worked together to suppress this type of violence. Real and perceived slights continued to occur, but they were contested at a different level of violence.
Very little violence in early modern Europe was unstructured. The tensions, the competitions, the affairs of honor were always present but were pursued in low-intensity conflicts, constituting the larger explosions as the proverbial tip of the iceberg. Explosions of feuding broke out as individual incidents piled up or when a particularly heinous violation occurred or an important person was aggrieved. Even when pacification occurred, individuals and small groups continued to confront each other in the streets of major cities. Efforts to control this type of violence and to limit its effects, with the potential for rupturing the solidarity of the aristocratic class, were focused on supplying an alternative, the ceremonial duel. Historians of dueling agree that they were more often written and theorized about by princes than they were tolerated in actuality. Most famously, the France of Louis XIII, with Cardinal Richelieu as enforcer, absolutely forbade participation in the duel. Likewise, the Medici wrote more about dueling than they tolerated participation in it by their fellow aristocrats. Instead, systematic examination of criminal records in Florence demonstrates that men from good families confronted each other informally in armed street brawls, structurally squeezed into the space between the formal duel, the large-scale combat of earlier times, and the alternative of litigation. Honor would be satisfied, but the story does not end here. In smaller towns, incidents of insulting language and acts—rape, assault, and murder—were usually linked to a level of clan feuding that occurred below the notice of officials. It is easy to see why this was the case: these factions existed in social spaces so small that it was impossible for them to avoid seeing each other on a daily basis. There were, however, other sources of violence.
Aristocratic retainers, whether in urban or rural settings, were responsible for some assaults. If the particular lord whom they served happened to be a protected resident in a foreign town while in exile, his bravos may even have been formally exempt from punishment for their violence under local statutes. At home they were usually likewise protected. These men usually showed off their status and honor by roughing up local townspeople or peasants while they roamed about city streets or country lanes. Soldiers and militiamen were another source of violent behavior. Soldiers may have been completely exempt until the professionalization of armies in the eighteenth century; militiamen were punished in special court sessions in Tuscany.
Still less structured forms of violence, for example, commissioned assassinations, were carried out by men who may have been professional killers with more than one crime in their résumé, but they could just as likely be well-known ruffians who killed when the right price was offered to them. Rape was mostly a group experience in the city, when it did not involve slave and servant women, but was committed by lone assailants in the countryside. In either case, the primary motive was the exercise of controlling power over vulnerable women, not lust. At times, a rape was another expression of lowintensity feuding.
Banditry: theft and violence. The activities of robber bands, constituting a different type of gang violence, also occurred in rural areas far from the seat of centralized power from the sixteenth century on into the nineteenth. In form, banditry had its medieval antecedents in the robberies and kidnappings of merchants as they passed on roads beneath some lord's castle, and in the freebooting mercenary armies of the fourteenth century. These men have been lauded as "primitive rebels," the precursors of modern political revolutionaries, who robbed the rich while protecting the poor, who sang their praises.
But the targets of most bandits in the early modern period were not the rich. For example, in the Austrian Netherlands, the Bokkeryders (the Goat Riders, after a medieval myth), active in the Lower Meuse in the 1730s to 1770s, the politically fragmented area of northeastern Maastricht, were organized around a core group of skinners and ironworkers whom unemployment had hit hard. These men had ties to local elites, as bandits usually did, and preyed on local churches and peasants. In Italy, bandit groups were composed of a core of men who had literally been banned from their home areas as contumacious of criminal charges. Banditry attracted a lot of attention from state officials and princes in the early modern period, as their depredations combined a high level of violence with theft and destruction of property.
A neat distinction between violence and theft is not possible in every case, because theft is often accompanied by violence. In early modern Europe, violence usually accompanied theft in the countryside, where highwaymen employed at least the threat of violence by showing a weapon, along with actual violence. In cities, however, violence seldom accompanied thefts. The category of nonviolent crime consisted of a variety of offenses against various forms of property (everything from trade or farming implements, to money, merchandise, and land with and without buildings), the accumulation of which both determined a person's qualification to participate in political life and conferred social position, if not quite personhood, especially on the bourgeoisie. As the accumulation of wealth came to assume a major place in European society among bourgeois and noble alike, thieves became subject to punishment by capital penalties, even for crimes as petty and necessary as the theft of a fish from the market.
Common types of theft included pickpocketing, burglary of homes and businesses, and theft from markets. The first two were usually the work of professionals, who were constantly on the move between one location and another, although, on occasion, the records reveal the existence of a criminal gang led by a young rogue aristocrat. They disposed of their pilfered items through fences, often Jewish merchants operating secondhand clothes shops or shops where other items, such as weapons, could be sold. Ideally, the stolen items were taken to such a shop for sale in a different locale than that where the theft had occurred; otherwise, the chance that an item might be recognized by its owner was too great. In Florence and elsewhere dealers in secondhand merchandise were subject to regulation because of their role in dispersing the fruits of thefts. At times the poor stole edible goods to ward off hunger, or were accused by neighbors of stealing farm implements.
Other, more sophisticated forms of theft occurred in the world of business. Usury, for example, was both a crime and a sin. Because profit was the inevitable outcome of a good business transaction, merchants devised numerous clever schemes for hiding profits that rose above the levels deemed acceptable by medieval churchmen. At times, bankruptcies of businesses were criminalized because there was always the possibility that what was really going on was concealment from one's associates or creditors of the intention of making off with what remained of the value of an enterprise in financial trouble. Hoarding grain for sale at higher-thanallowed prices during famine or dearth was another form of usury. From the sixteenth century on, the focus on what constituted a criminal act turned to crimes committed by the poor.
Associating Poverty and Crime
In both medieval and early modern Europe it was believed that the poor and crime would always be present in society because of the inherent misfortunes of life and the defective character of human beings. Yet the early modern period witnessed the advent of a decisive and telling sociological change in perception of the poor and of crime that more closely associated the two than before. The medieval poor were the holy poor: women whom fortune had deprived of a husband, children similarly deprived of one or both parents, and the blind or crippled of both sexes. It was the church that ministered to the needs of these unfortunate few, by the early modern period in partnership with the state. Symptomatically, prostitution, which many came to regard as a moral crime in the sixteenth century (everywhere but in Italy, where it remained merely regulated), was tolerantly viewed by the medieval church as the inevitable resort of lone women without a man to financially support them.
From 1500 on, the perceptual gulf between rich and poor widened. One of the reasons, but by no means the only one, was the development of a new self-concept among the wealthy: the rich were coming to see themselves as self-composed, restrained in their behavior and appearance, which reflected their superior inner worth, while the condition, behavior, and appearance of the poor similarly demonstrated their lack of worth. Various religions as well as governments began to note what they described as a great increase in the number of wretched poor flooding the cities.
Historians are not yet certain about the reality of the alleged increase in numbers or about what might have been the cause if the cited rise was, in fact, a reality. There would have been a notable increase in population from the post–Black Death lows reached around 1450, but the curve would not reach its highest point until 1600. It can be argued that city dwellers in particular were seeing two things: first, a real increase in the number of people, many of them poor. But they were also becoming aware of a new phenomenon, the existence of persistent poverty among the working poor and the unemployed. Composed of able-bodied men, this group, which had come into existence during the medieval period, stood out among the growing crowd of holy poor.
Partnerships between the state and religious organizations, both Protestant and Catholic, formed in the sixteenth century in an attempt to find solutions to the problem of the teeming masses of poor people clogging city streets and flowing along country byways. Efforts were made to keep the poor in their home areas, dispensing aid to them there; no one wanted to bear the burden of supporting the nonnative poor. Numbers of wandering poor had been present in medieval Europe, too, which included an uncertain percentage of rogues, people banned from their home areas who had naturally gravitated to a style of life on the fringes of society. The image of the wandering rogue was a common motif of medieval literature.
By the sixteenth century, this image was apparently broadened and applied to explain the character and existence of larger numbers of able-bodied poor men, many of whom were not wandering rogues at all but were, in Florence, for example, recognized by churchmen as being unemployed and in need of assistance. However, in most areas of Europe they did not receive this help; the new state- and religion-based systems of assistance focused instead on the traditional holy poor and single women, marginalizing, sometimes criminalizing, unemployed men. Sir Thomas More, in the introduction to his Utopia, recognized that these men, many of whom were crippled war veterans, were in need of help and posed no threat to society. Unfortunately, this view did not then prevail: the increasing numbers of vagabonds were viewed as threats to rural and urban society alike in an age of warfare and suspicion that produced a demand for order above all else.
In this way, the association between systematic poverty and crime came into existence. But more was needed to produce this newly negative evaluation of the poor; more was needed to create the sociological concepts of "poverty" and "criminality" to replace the poor and those who violated the law but could be brought back into society. Poverty had come to be perceived as a "style of life" voluntarily adopted by those who were too lazy to work. In fact, the records reveal that, in the eyes of merchants and government officials, there was a widespread belief that the working poor abandoned their jobs because they had discovered that they could gather more money by begging in the streets. Criminality was thus characterized as the occupation of lazy men and women who made the decision to obtain money illicitly by disguising themselves as the deserving poor, depriving them of alms and deceiving those who provided those alms. Thus, dishonesty and immorality were learned and taught to the young by those who lacked stable family structures, the primary place where morality was taught during this period. As a result of such thinking, the concept of criminality as a self-replicating style of life that would corrode the underpinnings of decent society if it were allowed to spread unchecked appeared to spring into existence.
The sixteenth century also witnessed the birth of a fascination with the existence of a criminal "underworld," a topic that has also enthralled some historians of the poor and of crime. Some records of police interrogations of beggars from the period have been found, most notably for sixteenth-century Rome. In them, elaborate structures of this underworld of criminal beggars were outlined. By the seventeenth century, particularly in Spain, popular literary motifs of shady characters inhabiting this underworld became widespread. Police interrogations of frightened poor people were likely to produce confirmations of what the interrogators expected to hear. This is just as true of the images of the elaborately imagined structure of the under-world of beggars, where each type of begging scam was taught and practiced by members of something like craft guilds, who then federated together, as it is of the testimonies of women tried as witches, who confessed to truly incredible practices and occurrences under pressure. In this period and later, historians have also found evidence of special "languages" used by criminals to set themselves off from decent people. While this evidence cannot be completely disregarded, in criminal records assembled and examined by historians of crime, no proof of such an underworld exists. One must never underestimate the ability of literary motifs to affect the expectations and actions of educated elites. This was as true of the witchcraft phenomenon of the sixteenth and seventeenth centuries, where elite expectations were shaped by the fifteenth-century Malleus Malificarum, as it was of the documents confirming the expectations of the literate regarding the existence of a criminal underworld. One was as true, in fact, as the other.
Systems of Capture, Trial, and Punishment
The police. Not much is known about the police in early modern Europe. In large part this is due to the informality of policing, often an ancillary responsibility of kings and lesser nobles, whose job it was to provide order in the realm. Italy led the way in forming urban and rural police agencies in the medieval period to deal with crime, while Great Britain joined in at the end of the period. Thematically there is a dual focus: on their effectiveness in capturing violators, and on the issue of police corruption, or what might be called the moral quality of officers.
The Italian cities displayed several different types of police units from the later medieval period. The main force, which was not large in number, was organized as a military unit under a captain of police (capitano del bargèllo or il bargèllo, in Florence), with one or more lieutenants under him and a number of men in squads. In emergency situations they might be aided in the capture of malefactors, or in suppressing crowd violence, by members of the military guard of nobles, which were routinely stationed outside palaces. These military units patrolled the city at night, carried various documents from the criminal courts and magistracies, and made arrests as necessary. To carry out these functions, they had to have achieved some level of literacy. The police captain, at least, kept his ear to the ground by maintaining close familiarity with a number of questionable personalities who served as informers. (Even this early in their history, the police faced the absolute necessity of relying on informants to make arrests.) Very small constabularies were established in the small towns of the countryside. In France, a marshal was established to control crime outside of the cities, while in Paris from 1667 on a lieutenant, a powerful official, was responsible for the control of crime. Great Britain formed centralized "French" police units in London with the establishment in 1770 of the Bow Street Foot Patrol in London, with a contingent also to patrol the countryside, and a similar force for Westminster.
Other squads specialized in the operation of the many jails (including debtors' jails) that the cities established with the extension of municipal control over what had been, in the high medieval period, privately operated places of detention. The most common purpose of jails was to hold suspects during lengthy periods of pretrial detention, which, in early modern Florence, averaged six months. There is some question as to how effectively the guard kept watch over inmates; the reason that Florentine government took over administration of jails was to stop the many successful escapes. Making the owners of these jails liable for financial reimbursement to the city for escapees had not served as an effective deterrent. Escapes still occurred, sometimes under mysterious circumstances. Guards often had contact with prisoners because they not only provided security but also sold food, bedding, and other items to those few who could afford them while they were being held. Prisoners or their families were responsible for meeting the costs associated with maintaining a person in confinement, so the better off the person was, the better he or she lived. The others—the vast majority—starved or marginally survived on meager alms provided by reluctant princes.
The last type of policing was directed at controlling banditry and vagabondage. In Italy banditry was dealt with by ad hoc militia units that conducted campaigns against bandit gangs, hanging as many culprits as they could catch. These campaigns were temporary because of their great expense. Vagabondage was controlled by local police forces: in France, for example, the marshals were charged with controlling vagabondage in the countryside.
Many experts on crime and punishment are harsh in their judgment of the effectiveness and corruptibility of the police in the early modern period, but they were too few and lacking in the technological advantages to match the effectiveness of modern police in the detection of crime and criminals and in the capture of malefactors. Many people charged with crimes simply left the area, becoming contumacious rather than submit themselves to the possibility of detention and punishment. Policemen were paid very little at that time. In fact, the state spent very little on the support of the entire system of criminal justice. As a consequence, the prison situation was designed to provide the police with opportunities to supplement their salaries with the proceeds of legitimate graft. Legitimate graft easily crossed over into illegitimate territory, however, when the police accepted payment for abetting the occasional escape, in falsely imprisoning women on charges of prostitution and then collecting payments to release them, and so forth.
Conversely, others were clearly dedicated to service. There are accounts, for example, of rural policemen who pursued men who had come into the center of towns and small cities to engage in the violence associated with feuding, increasingly using harquebuses (heavy portable matchlock guns) from the sixteenth century on, even though they were outnumbered and outgunned. Because the nature of their work allows them the sanctioned exercise of violence and restraint—thus, the job will attract some persons of questionable morals—and because they are too few in number (but who wishes to live in a police state?) and poorly paid (some police will succumb to opportunities for corruption) policing the police will always be a difficult challenge.
Trial. Many types of courts, tribunals, and magistracies exercised jurisdiction over the adjudication of early modern crime. Although centralization was occurring, it was not achieved in Europe's early modern period. Some courts were professionalized, in that they were staffed with actual judges trained in the law; others were not, as in the English system, where quarter sessions and assize courts were staffed with justices of the peace appointed from the merchant class. Some magistracies, like the Eight on Public Safety in Grand Ducal Tuscany, while having wide but not exclusive criminal jurisdiction, were staffed by selected citizens with no juridical background at all. In Catholic countries, the church retained jurisdiction over its personnel. Finally, some bureaucracies regularly convened as magistracies to adjudicate violations of their own regulations.
Procedure in criminal cases exhibited some important similarities across Europe, despite the simultaneous persistence of differences. Cases were initiated through either accusatorial or inquisitorial process. In the first and older of the two, a case commenced with a private denunciation; in the latter, developed in the medieval period by the church to investigate and adjudicate cases of heresy, the process was initiated by magistrates. Though both types of process existed side by side after 1500, inquisitorial procedure dominated on the Continent—in Spain, primarily in Aragón, in northern Italy, in Sweden, France, and Germany—by the middle of the century. Legislation of special interest occurs in the Carolina of 1532 in the German Empire, in the Royal Ordinance of 1539 in France, and in the Criminal Ordinance of 1570 in the Spanish Netherlands.
England was different in not adopting the inquisitorial process but developed instead, in the Marian Statutes of 1554–1555, its own process initiated by magistrates. The advantage to inquisitorial procedure was the investigative initiative and power conferred on magistrates who were appointed by princes. One need not wait for a complaint from an alleged victim to begin investigating a suspected crime, during the course of which witnesses and suspected culprits were held in jail if they could not make bond. Of course, the vast majority was poor people, who could not afford bond, or political enemies of the princes, who were held secretly. An important point to make is that inquisitorial process had its longer, more complex form, requiring the expertise of jurists, but it also had an abbreviated form that could be utilized by ordinary citizen-magistrates, appointed by the Grand Dukes, and advised only by a lawyer, as was the case with the Florentine Eight on Public Safety. One must be careful, therefore, not to automatically assume that the inception of the inquisition process indicated unidirectional progress toward modernity in every case. In Florence the medieval system, which relied on trained jurists acting as judges, was more "modern," while the early modern system, centered in the city, represents several steps away from professionalization.
Detention was a part of the trial procedure, as was some degree of torture. Defense lawyers were participants when the accused could afford them. Questioning was conducted while torture was being administered, then confirmed with the accused once it had ceased. Those found innocent were either freed without prejudice or provisionally acquitted with the state retaining the option of recharging them in perpetuity, even after their death. Most of those suspected of serious crimes simply fled, entering the state of contumacy despite the severity of the penalties that were statutorily applied in that instance. This was a good strategy, because the state was willing to negotiate lesser penalties with the contumacious in return for submitting themselves to justice.
Punishment. Punishment was effected through afflictive and pecuniary penalties, and forms of penal servitude, with increasing application of a fourth, incarceration and outright expulsion, depending on the polity and the time period. England is the easiest to discuss because, for the sixteenth through the seventeenth centuries, it relied heavily on capital penalties as punishment for a wide variety of crimes, from theft to murder. Great Britain relied on using capital penalties to terrify potential criminals as a deterrent because it did not have police forces to catch violators, and would not have them until the late eighteenth century.
In the Mediterranean countries, pecuniary penalties and forms of penal servitude predominated. In sixteenth-century Florence, imposition of afflictive penalties was heralded as an equalizing reform, because the rich would not be able to lessen the impact of justice by using their wealth. In fact, what occurred in Grand Ducal Tuscany, and in Spain, was the increasing reliance on forms of penal servitude as punishment. Penal servitude derived from the opus publicum ('public works') of antiquity, giving it a long history. Its common form in Italy was in galley service, or service in the mercenary armies that Italian princes were obliged to raise to support the northern wars of their Habsburg masters. The Florentines added internal exile, another punishment with an antique heritage, sending many convicts to reside in Livorno, then a pestilent swamp that the grand dukes would turn into their only port to the Mediterranean. The Spanish also employed convicts in galley service, adding service in mercury mines at Almadén, and presidios ('hard labor prisons') in North Africa and in their American possessions. By 1748 they had abolished galley service in favor of sentences in presidios as the most common type of punishment. The motivation for these types of punishment was the need for manpower to serve the needs of war and of empire.
Reform
The Enlightenment produced an interest in the reform of criminal justice and punishment. The most influential reformer was Cesare Beccaria, the Milanese dilettante. In Of Crimes and Punishments (1764), he proposed standardizing sentences in proportion to the seriousness of the crime without later modifying them, leaving aside consideration of the social differences between victim and culprit if there were any, and ending the practice of judicial torture and the infliction of capital penalties. The inflexible imposition of sentences would convince any potential criminal to weigh the likely result of committing a crime against the unlikely benefits, a calculation that Beccaria was confident would deter potential criminals. As a mode of punishment, he preferred penal servitude in the public interest: why should criminals not be put to use in making restitution to society for the losses caused by their violations? The barbarity of the old system, exemplified above all else by gruesome public executions, had to be brought to an end by a civilized society. During this same period, the English began to rely on a system of imprisonment in the decaying hulks of ships, before turning to a new system, expelling prisoners from Great Britain and Ireland to Australia, America, and Tasmania between 1787 and the end of the practice in 1868. The French also employed a system of expelling criminals to penal colonies in the Americas during roughly the same period.
The development of early modern crime and punishment ends with increasing reliance on excluding undesirable people from decent society. Commission of a crime had come to define an individual for life; exclusion was the proper response before the idea of reforming the criminal took hold in the nineteenth century. This is not to say that disciplinary institutions did not previously exist; the first prisons (as workhouses) were founded in the mid-sixteenth century, but the general adoption of the modern prison and its ideology of reform was not the teleological result of trends in the reform of criminal justice but the result of changes in the way that crime came to be conceptualized as criminality, and violators as criminals.
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—JOHN K. BRACKETT
