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Le pénal dans tous ses États

 | 
René Lévy
, 
Xavier Rousseaux

- I - Acculturation juridique et intégration nationale

Long-Term Developments in Criminal Justice Arrangements and Criminality in the Northern Netherlands European or Dutch Perspective?

Herman Diederiks

Texte intégral

  • 1 See e.g. H. DIEDERIKS, A. HUUSSEN jr., Crime and Punishment in the Dutch Republic, in La Peine (3r (...)

1It is not very difficult to sketch the structure of criminal justice, the pattern of criminality and along with the changes in the development of the Dutch State during the period of the Republic; that is, the period of the Ancien Régime1. I have chosen a different approach. The main question I asked myself whether and when we can speak of a long-term development, whether we can speak of a Dutch structure and a Dutch pattern in long-term developments. I turned the question 180 degrees and wondered whether there was a European context of criminal justice and criminality. In other words: is the nation-state a good unit for analysing the organisation and practice of criminal justice as well as the patterns of crime, or do we have to turn to an international context? I would like to add the problem of caesura in that long-term development; are there breaks on a European scale, on a national scale, or both? Or can we consider groups of countries in respect of breaks? We may think for example of the influence of Napoleonic reforms, leaving out Britain in many respects.

  • 2 J.A. SHARPE, Crime in Early Modern England 1550-1750, London, 1984, p. 225.
  • 3 C. EMSLEY, Crime and Society in England 1750-1900, London, 1987, p. 249.
  • 4 C. EMSLEY, Ibidem, p. 1.

2Most empirical studies concern a special urban, regional or national context. In a bibliographic note to his book on Crime in Early Modern England, dealing with a period of 200 years, Jim Sharpe mentions three monographs offering wide-ranging interpretations of crime and punishment in early modern Europe as a whole. These studies are Rusche and Kirchheimer’s, Punishment and Social Structure published in 1939, Weisser’s Crime and Punishment in Early modern Europe of 1979, and Melossi and Pavarini, The Prison and the Factory of 1981. But Sharpe warns us: all three should be treated with caution, despite their raising a number of important questions, not least those surrounding crime and punishment and wider socioeconomic developments2. In the second volume in the same series dealing with the period 1750-1900, Clive Emsley only mentions the study of Michel Foucault for its wide ranging argument, regretting nevertheless that the bulk of the illustrative material is French. Emsley did not add a warning to the reference, although he states that nobody interested in 18th and 19th century legal and penal reforms can afford to ignore Foucault3. In his survey, Emsley leaves out most histories of crime and criminal justice in Wales and Scotland because of a different legal system and in Ireland with its rural and nationalist rebels together with a paramilitary police4. So, a more or less uniform legal system is considered here as a criterion for the selection of the unit of analysis. I am quoting these two authors because they deliberately take the nation-state with its legal structure as their starting point.

3State formation is a fashionable topic at the moment, and sometimes one has the feeling that State formation serves as a wildcard; like for some other 'subjects industrialisation' is the explanation and for others, 'urbanisation', 'State formation' has taken this role now for many other societal developments. The ideas of Norbert Elias are of course in many ways due to this fashion. The problem with the concept and underlying reality of 'State formation' is the difficulty of operationalisation. Criminal justice may be a strong point in the search for operationalisation of this general process of State formation. The latter has been approached by analysing the income of the state or prince and the increase of it. How much of the national income was taken and spent by the central government? An increase of this expenditure is considered a measure of State formation. But another way to approach the problem of State formation and the increase of the role of the State can be phrased as: How many cases of conflict in an urban, local-rural, regional, or even national society were solved by a central authority? Can we consider growth of this type of activity as a sign of the growing influence of the state? For the Dutch Republic the answer is not that difficult. Formally criminal conflict was solved till the very end of the Ancien Régime on the local level, and officially a central agency did not interfere.

4As state above, I would like to turn the case around and explore European criminal justice and criminality. In case the European aspect is not a sufficient explanation one may turn back to the national, or even local level. Are there studies available on the European level? There are studies trying to cover the development of criminality and criminal justice on that scale. How successfully can this be done, and what kind of specific questions and problems can be dealt with on a European scale? A first observation might be that long-term developments certainly belong to a type of approach apt for a wider geographical unit, in this case Western Europe.

  • 5 B. LENMAN, G. PARKER, The State, the Community and the Criminal Law in Early Modern Europe, in V.A (...)
  • 6 F. EGMOND, De Hoge Jurisdicties van het 18e eeuwse Holland. Een aanzet tot de bepaling van het aan (...)
  • 7 R. LEVY, Ph. ROBERT, Histoire et question pénale, Revue d’histoire moderne et contemporaine, 1985, (...)

5Lenman and Parker warn in their essay The State, the Community and the Criminal Law in Early Modern Europe published in 1980, that there are difficulties in the historical study of crime and law in early modem Europe. They mention the fact that during the Ancien Régime France counted 60 general and 200 local customs and they quote Voltaire who had said that a traveller in France changed law courts more often than he had to change horses5. They point out the diversity of law systems and the attendant problems in developing a general overview, analysis and explanatory context. The Dutch Republic confirms the picture of France. When we only take the example of the province of Holland during the Ancien Régime, we find there were more than 200 jurisdictions with the right to sentence in cases involving the death penalty6. In contrast to Lenman and Parker, Lévy and Robert view the value of local studies for the early modern period more favourably. The French criminologists have doubts about overall archive material, but they give more credit to the analysis of local or regional court records7. Apparently they are happier with the centralised statistics provided since the establishment of a centralised criminal justice system. They don’t bother with the problem of how to make fragmented evidence show a general trend for the earlier period.

  • 8 B. LENMAN, G. PARKER, Ibidem, p. 47.
  • 9 B. LENMAN, G. PARKER, Ibidem, p. 15.
  • 10 M. R. WEISSER, Crime and Punishment in Early Modern Europe, Hassocks, 1979, p. 77.
  • 11 M.R. WEISSER, Ibidem, p. 82.
  • 12 M.R. WEISSER, Ibidem, p. 127-131.
  • 13 M.R. WEISSER, Ibidem, p. 179.

6One way to reach comparison is the numerical approach. For the early modern period officially collected contemporary statistics are lacking and the historian has to create his own tables, and to calculate percentages. Some have doubts about this sort of exercise8. Lenman and Parker state that one of the reasons why quantitative study is so fruitless in early modern Europe is that contemporaries did not usually think numerically. They deny the possibility of measuring criminal trends in early modern Europe9. Looking at Michael Weisser’s book Crime and Punishment in Early Modern Europe we see that this author - unhampered by detailed information or knowledge - describes very wide ranging developments. Weisser suggested covering a long period and a whole continent. We may say that research in the seventies had just started and that Weisser, had to rely on very fragmented empirical evidence, if there was any. Weisser tried to analyse some aspects of the transformation of early modem European society through the perspective of criminality, using the incidence of crime and the behaviour of criminals as a measure of how early modem European society' was being transformed. Nowhere in his study does he define European society and we must assume that he takes early modern Europe as a given entity. The first two chapters include a discussion of the social and legal environment of crime. In a third chapter he traces the beginnings of change in Europe and European crime. The quantitative evidence that we possess, he says, shows a marked increase in all types of reported crime during the period 1500-170010. Crime in rural Europe was moving away from its intra-class character and was beginning to develop, as an aspect of inter-class conflict11. Crime was modernized during the 18th century, with more theft and subsequently, a change in punishment. Weisser presents a description of the case of Piazza and Mora (characters in a book of Manzoni) in Milan in 1630 as being representative of criminal justice in the Ancien Régime. He points out the arbitrariness and cruelty12. For the 19th century Weisser claims a split into two categories of violence: criminal violence and violence as a part of politics. The creation of a police force and of the prison were part of the transition from feudal to capitalistic society. Weisser attempts to explain the historical logic behind crime and punishment13. We may have serious doubts about his assumptions and statements. Since the publication of Weisser’s book in 1979 a great number of local, regional and national studies, covering one or more aspects of historical criminology, have been published. One of the questions to be dealt with here is: how far are we in 1993 and does this long-term and European approach make sense? In connection with this point I would like to introduce the question of the Europeanness of the Dutch case or the Dutchness of the Dutch case.

7For a European perspective on the long-term - including the Dutch case - a starting point around 1250 can be argued for. Ending in the mid - 19th century has also its reasons. During the 13th century the appearance of courts and judges all over Europe was a general phenomenon and archival evidence supports the choice of that period as starting point for reasons of opportunity. Ending up in the 19th century seems a bit arbitrary; but the reasons are: in most countries a national codification has left its traces and helped to create a real 'national' system. Societal developments leading to a common type of society, the Welfare State, especially after the Second World War, might be a reason again to consider the possibility of a European approach. The assumption behind this is that there was a common starting point in the Middle-Ages, then a process of differentiation, ending up at the end of the 20th century again in more commonness than differentiation. The subject can be treated along the following lines: the development of criminal justice systems and of patterns of criminal justice practice, crime patterns and penal policy.

I - ORGANISATION OF CRIMINAL JUSTICE

  • 14 For the Dutch Republic there is the exhaustive study by W. van ITERSON, Geschiedenis der Confiscat (...)

8One of the topics I would suggest for a European approach is the relationship between local courts and the prince in the late Middle-Ages and the changes that occurred up to the end of the Ancien Régime. These relationships can be exemplified by two aspects: the nomination of the urban and rural bailiffs and the punishment of confiscation14. Both were points of discussion and dispute between the prince and urban authorities.

  • 15 R.C. van CAENEGEM, Geschiedenis van het strafrecht in Vlaanderen van de XIe tot de XIVe eeuw, Brus (...)

9The basis of criminal justice in the province of Flanders is threefold: old Germanic law, the communal principle, and the centralistic monarchistic principle to be traced back to Carolingian times15. Was this also the basis in the Northern Netherlands and other European countries?

  • 16 R.C. van CAENEGEM, Ibidem, p. 311-323.

10In the 14th century, the communal principle was visible in the courts of the peacemakers and in the judiciary activities, of the bailiff16. The role of the prince, in Flanders the count of Flanders, can be traced in the courts of the scabini, or aldermen. For the 14th century van Caenegem mentions an average of 465 crimes annually for the city of Gent of which 70 were dealt with by the court of the prince, and 70 were arranged without sentence by the bailiff.

  • 17 K. de VRIES, Bijdrage tot de kennis van het strafprocesrecht in de Nederlandse steden benoorden Ma (...)
  • 18 G. SCHWERHOFF, Köln im Kreuzverhör Kriminalität. Herrschaft und Gesellschaft in einer frühneuzeitl (...)
  • 19 K.W. SWART, The Sale of Offices in the Seventeenth Century, Den Haag, 1949 (reprint Utrecht, 1980) (...)
  • 20 J.E.A. BOOMGAARD, Misdaad en straf in Amsterdam. Een onderzoek naar de stratrechtspleging van de A (...)
  • 21 B.C.M. JACOBS, Justitie en Politic in's-Hertogenbosch voor 1629. De Bestuuroganisatie van een Brab (...)
  • 22 K.W. SWART, The Sale of Offices, p. 71-72.

11A study of criminal justice in the Northern Netherlands in the period before the establishment of the authority of the Burgundian dukes, i.e. during the 15th century, starts with the assumption that the urban institutions provided the basis for modem concepts of administrative, juridical and state law17. Feudal society solved conflicts as family conflicts by peace-making between families. The development of towns created a new form of communal life and the city became a quasi-family. In German one speaks of Schwurbruderschaft and in Latin the concept of Amicitia or conjuratio was in use. The definition of peace within the urban community reflects the idea of a peaceful family. Full citizens had special rights in respect of criminal justice; e.g., they were not arrested before the trial. The urban criminal justice system as it emerged in the later Middle-Ages certainly reflects the origins of urban life as a family. A recent study on criminal justice and criminality in Cologne during the 16th century shows this also18. In a chapter on 'citizens or subjects?' the author deals with the problem of the character of society in 16th-century Cologne. He concludes that it was a commonwealth (gemeyne beste) and he takes the crimes against this commonwealth as measuring stick. But on the other hand there is always the prince, lord or count. In the analysis of the origins in Flanders, van Caenegem gives the bailiff a very prominent role, because the appointment of an officer either by the prince or by the city was a crucial point. The urban bailiff was originally an officer of the count, duke or prince. How could the cities get hold of that office? By paying the prince! The cities themselves were against this practice. So we find that in the city of Utrecht the bailiff had to swear that he had not paid any money to the bishop for his appointment. The bishop was also the secular lord in Utrecht. This system existed in the late Middle-Ages in the low countries, both in the north and in the south19. In a recent study on crime and criminal justice in Amsterdam during the late 15th century and the first half of the 16th it is shown that the city authorities had gained prominence over the office of the bailiff. In 1395 the city and the prince agreed that before his appointment the bailiff had to have lived in Amsterdam for 7 years. The prince also had to accept a proposed candidate, because of certain financial arrangements. The office of bailiff was farmed out or given as a pawn to the city. The city had given a sum to the count and as long as that was not given back, the city was the owner of the office of bailiff20. In a city in the province of Brabant, Bois-Le Duc, the function of bailiff was in the hands of the duke, although the person to be appointed had to be a resident of the province of Brabant in possession of some property there21. After the revolt of the Netherlands against the Habsburg government and the establishment of the Dutch Republic, the sale of offices was limited by the States of the seven provinces. The States of the province of Holland particularly made sure that sale of offices did not penetrate into the court of justice and prescribed an 'oath of purgation' for all public servants. The province of Holland was more successful in this respect than poorer provinces like Friesland22.

12We may speak of a dual system in the Northern Netherlands and also in the cities of Flanders and Brabant. But what about the Hanseatic towns and other German towns? What about the Italian cities? Certainly in England and France the king played a much more dominant role in comparison with the Low Countries.

  • 23 J. B. GIVEN, Society and Homicide in Thirteenth-Century-England, Stanford, 1977, p. 5.

13In England, by the 13th century, the kings had managed to establish a virtual monopoly of the right to judge crimes involving the possible loss of life or limb as punishment23. The instrument was the traveling eyres visiting the hundreds and boroughs hearing all cases of death, accidents and homicide from a group of 12 jury members.

  • 24 J.P.A. COOPMANS, Van beleid van politie naar uitvoering en bestuur (1700-1840), Biidragen en Meded (...)

14In the Netherlands, the concepts of police, and justice, already had a separate meaning before the establishment of the Dutch Republic. 'Police' indicated the executive while the actual administration was increasing in the hands of the 'estates', the body with representatives of the cities and a small minority of the gentry representing the countryside. The courts were gradually pushed back into the role of courts of justice. In the instruction of the Estates of Friesland of 1597 it was stipulated that the court of Friesland had nothing to do with the administration24. So we may conclude that there was a separation of spheres.

  • 25 T. van WEEL, De interjurisdictionele betrekkingen in criminele zaken van het Amsterdamse Gerecht ( (...)

15In the later development of the criminal justice system everywhere in Europe, centralising tendencies can be seen. Even in the fragmented situation in the Northern Netherlands. There, certainly after the mid-18th century, the stadtholder took some central tasks: e.g. atonement. But also, the practice of collaboration between jurisdictions in prosecuting suspects and the use of printed criminal sentences as precedents and examples lead to a more uniform system during the 18th century. Analysis of the correspondence of the Amsterdam court shows that during the 18th century there was an extended network between the very numerous jurisdictions within and outside the Dutch Republic on a voluntary basis. Handing over of defendants or suspects was also common practice. With the arrival of the French this voluntary basis changed into an obligation25.

II - THE STUDY OF THE LAW

  • 26 A.H. HUUSSEN, De betekenis van codificatie-gedachte en praktijk voor de natievorming, Bijdragen en (...)

16We may wonder how far codification of law and making the codified law compulsory contributed to national unity and created a national identity in respect to the way the law was put into practice. Or was it the other way around, national unity creating a uniform system of laws?26

  • 27 P.L. NEVE, Le statut juridique des réfugiés français Huguenots; quelques remarques comparatives, i (...)

17To go deeper, this question may also include the problem of 'justice for whom?' After a long period of formal equal justice for all, we may discover in periods a bit longer ago many discrepancies with respect to equal treatment. Did there exist 'citizens', and citizen’s rights as there are now human rights? The Dutch Republic took in many immigrants; many people persecuted for their religion sought an asylum there and were allowed to practice their religion. But what about legal rights? To take the Huguenots as an example, we find very different approaches towards this special group of immigrants in England, Brandenbourg and the Dutch Republic. In England they were very easily integrated legally, but in Brandenbourg the Huguenots constituted a state within the state with their own courts. The Dutch case was a bit in-between. The Huguenots were given the right of citizenship and were allowed to enter the corporations27.

18Before the introduction of a constitution at the end of the 18th century there were officially no equal rights for all inhabitants of the Dutch Republic, but in practice - e.g. in court trial - every one had the same rights. This did not mean that people had many rights.

III - MODELS OF LONG-TERM DEVELOPMENT

  • 28 N. ELIAS, Über den Prozess der Zivilisation, Basel, 1939 (2 vols.).

19Norbert Elias’ is the most general and best - known of the existing long-term models. The combination of the monopoly of taxation and of the means of violence leading to State formation with less violent behaviour on the street provides an overall model for explanation of very long-term changes28. Ideology follows more or less this process of monopolisation, and nowhere is it a relatively autonomous factor. Although Elias offers a overall model, his examples are mostly from France.

  • 29 Ch. TILLY, Coercion, Capital and European States ad. 990-1990, Oxford, 1990, p. 76.
  • 30 Ch. TILLY, Ibidem, p. 96.

20Another more recent long-term approach is by Charles Tilly in his Coercion, Capital and European States ad. 990-1900, covering a period of one thousand years. He traces two paths to the formation of States: one coercive-intensive and one capital-intensive. The assumption is that a state needs money and in cases with a lack of capital the State needs coercion and with abundant capital that capital will be provided more freely. The need for capital by the State was primarily for external war, the most important factor in State formation in Tilly’s view. For war, income is needed, and income is obtained by a fiscal system. War wove the European network of national States, and preparation for war created the internal structures of the states29. Tilly describes three types of States: the large tribute-taking states, the national states and the systems of fragmented sovereignty such as city-States. He defines three minimum activities for a State30:

  • state-making: attacking and checking competitors and challengers within the territory claimed by the State;
  • war-making: attacking rivals outside the territory already claimed by the State;
  • protection: attacking and checking rivals of the rulers’ principal allies, whether inside or outside the State’s claimed territory.

21To fulfill these tasks the state had to extract money from the inhabitants. Beyond a certain scale however, all states found themselves venturing into three other risky terrains: adjudication (settlement of disputes); distribution and production.

22The problem of this theory is the reification of the state and its definition as an institution with its own will and with organs and brains and an aim. The field of activity is brought back to a system of power relations. Tilly leaves out an important element of all community formation - and State-formation is a special case of that process - and that is the fact that all communities are 'moral communities'. The prince or lord may claim his position as the main judge and in this respect one of the basic elements of State formation is the law and the prince is the embodiment of the law - the law not as an expression of existing property relationships, but as the expression of an ideology. Power relations are human relations and in that sense power relations can not be reduced to economic interests although they are important. Many developments in law and the application of the law are based on a value system grounded in an ideology; in early modem Europe part of the ideology was fear and that fear was exploited by the powerful. For that exploitation the men in power didn’t need an army or other means of physical coercion as Tilly is suggesting. I think that his model is much too mechanistic, leaving out a lot of psychology, and reduces the state to a thing with its own reasoning and rationality. The human networks have disappeared in this approach, and especially in crime and criminal justice - almost absent in his model - although this human aspect is of foremost importance.

IV - CRIMINALITY

  • 31 ) P.C. SPIERENBURG, De verbroken betovering, mentaliteitsgeschiedenis van Preïndustrieel Europa, Hi (...)

23If we turn to criminality and ask ourselves whether we can speak of European or Dutch patterns, the first thing to be said is that a breakdown into categories of crime is required. Much has been done on witchcraft, for instance, on the basis of which Pieter Spierenburg could discover four patterns spread over Europe: the fragmented pattern, the isolated but permanent pattern, the short and the long-lasting panic leading to the prosecution of witches31. The first pattern is found in the Northern Netherlands, the second in England while the short - and long-term panic patterns are more a German phenomenon. In the first place, how can we explain the European-wide phenomenon of the witch trials in general, and in the second place the subdivision in local or regional patterns? The first aspect must be seen in the light of the shared ideology, in this case Christianity, with the attendant system of beliefs. For the second aspect we must look at local circumstances. In most parts of Europe witchcraft trials cover a period of about two hundred years. Before 1500 they were almost absent and after the 17th century they disappear. Can this be explained by European-wide introduction of the inquisition and the inquisitorial system by the secular courts, and by the introduction of torture? Or should these persecutions be viewed more as an outlet for feelings of uncertainty with respect to religion and ideology? How European was that feeling of uncertainty?

  • 32 B. SCHNAPPER, Voies nouvelles en histoire du droit. La justice, la famille, la répression pénale ( (...)

24The crime of usury is also related to Christianity. To what extent was the crime of usury a European crime? This brings us again to the role of the church and the universality of Christendom. Both witchcraft and usury are now no longer on the list of crimes in Europe, but they were at the close of the Middle-Ages, and witchcraft stayed on the list till the end of the 17th century. Schnapper has linked up the prosecution of the crime of usury with economic developments. Periods of greater economic growth witnessed more stimulation of the crime of usury because everyone needed money and it was borrowed visibly. So the church had to react. Periods of low economic performance led to exorcism of usury but also to some approval of it as serving the poor in need of money for consumption32.

25While some crimes during the Ancien Régime derived their definition from religious systems, the explaining factor may be Catholicism or Protestantism. Can we speak of a split of the European world into two worlds in relation to some crimes since the Reformation and a of process of integration after the period of Enlightenment again? The Dutch Republic certainly belongs to the Protestant camp. Can we fit in all other Protestant countries? The answer is affirmative: it is not the Dutch Republic as a separate state that provides the explanatory framework, but the system of beliefs.

26I cannot pursue this topic here and my intention is only to mention it as an example.

  • 33 J.M. DONOVAN, Infanticide and the Juries in France, 1825-1913, Journal of Family History, 1991, 16 (...)
  • 34 S. van RULLER, Genade voor Recht, Gratieverlening aan ter dood veroordeelden in Nederland 1806-187 (...)
  • 35 D. de FEYFER, Verhandeling over den kindermoord, Utrecht, 1866, 57 p.
  • 36 W. WÄCHTERSHÄUSER, Das Verbrechen des Kindesmordes im Zeitalter der Aufklärung, Eine rechtsgeschic (...)
  • 37 J. HAYNAL, European Marriage Patterns in Perspective, in D.V. GALSS, D.E.C. EVERSLEY (eds.), Popul (...)
  • 38 E. SHORTER, The Making of the Modern Family, New York, 1975.

27Infanticide might offer another example of a crime that was considered as such everywhere, but the prosecution and final condemnation of which changed considerably everywhere over time. When we take infanticide during the 19th century in a number of countries the general tendency is one of increasing leniency. Although officially the penalty for infanticide is the death penalty, in most West-European countries the accused were acquitted and given reprieve in case of a death penalty. For France for the period 1825 to 1913 it has been suggested that growing emphasis on honour in the fin de siècle contributed to the rising rate of acquittals33. In the Netherlands the death penalty was abolished in 1870. Between 1806 and 1870, 47 persons were given the death penalty because of what the code pénal called infanticide. Only three of them did not get a pardon. Two of the three women put to death for infanticide were tried during the period of incorporation into the French Empire under Napoleon and only one under the new Dutch King William I34 (In 1866 a dissertation on infanticide at the university of Utrecht showed two tendencies for Europe around 1800: one of more leniency and one of more harshness. French judges kept a more severe point of view. Infanticide was considered as the murdering of close family and had to be dealt with as such35. For Germany the tendency to greater leniency was found already at the end of the 18th century36. The same tendencies can be found in the Netherlands at the beginning, in France at the end of the 19th century and in Germany at the end of the 18th century. Are these conclusions due to shortsightedness in choosing the period or country? In historical demography, the West-European marriage pattern is a well known phenomenon37 and the changes in that pattern at the turn of the 18th to the 19th century, exemplified among others by a growth of illegitimacy, are well documented38. Infanticide and illegitimacy are interrelated and a long-term view and comparative approach may provide another answer to what kind of attitude towards infanticide was dominant in the three countries.

28The crime of sodomy or homosexuality may provide another possibility for a European approach. Around 1730 there was a sort of 'moral panic' about this crime in the Dutch Republic and a great number of people were arrested and convicted. Did the Dutch Republic share this panic with other European countries? England had some prosecutions, but France and Germany did not witness such a phenomenon. Can we take the large-scale prosecution in the Dutch Republic - with its fragmented system of criminal justice - as a sign of national integration? While the high jurisdiction was a local affair, the prosecution was nation wide.

29When we turn to organised crime and wonder whether there was a Dutch pattern, we find in the recent literature that within the Dutch Republic there were at least three types of gangs of bandits, if we take organised crime in those terms. In the province of Holland it was an urban or rather an interurban phenomenon and the gang members were of Dutch origin, but also immigrants; the gangs in the province of Brabant and Limburg were more rural and constituted by native people. This gave the members of the gangs a foothold in the population at large. The third type were the gangs of gypsies and Jews. The gypsies disappeared after 1730 and the Jews were mainly active during the 18th century. We may say that gypsies and Jews were immigrants.

  • 39 F. EGMOND, Onderwerelden: marginaliteit en misdaad in de Republiek, in P. te BOEKHORST, P. BURKE, (...)

30Florike Egmond, because it is her research and publications I am using for this part of the contribution, has found a less stratified organisation in Holland in comparison with the French and English gangs. In Holland a central person like Jonathan Wild, the thieftaker-general, is totally absent39.

  • 40 B. D. PLAUM, Strafrecht, Kriminalpolitik und Kriminalität im Fürstentum Siegen 1750-1810, Siegen, (...)

31In the discussion of crime patterns, the so-called 'modernisation', has become a traditional subject. The transition from a society dominated by violent crime to a society where crimes against property are in the majority, has been found almost everywhere but also almost in any period. So the whole concept lost most of its precision and specificity. An analysis of criminality in the Siegen principality in Germany during the second half of the 18th century shows us that the so-called change in crime patterns during a transition from feudal to capitalistic society, involving a decline of violent crimes and increase in property crimes, does not hold true40. Perhaps the author is trying to compare different things for different periods of different lengths.

  • 41 J.A. SHARPE, Crime in Early Modern England.., p. 171.

32Those attempting to relate changing patterns of serious crime in England with some preconceived notion of economic change must, therefore, confront the problem that the patterns of serious crime do not seem to have changed much between the 14th century and 1800, according to Jim Sharpe41.

  • 42 C. LIS, H. SOLY, Poverty and C.apitalisatism in Pre-Industrial Europe, Brighton, 1979.

33This statement contrasts with a generally accepted view that vagrancy and beggary became widespread all over Europe with the emergence of commercial capitalism. The case has two sides: because of demographic growth and changing patterns of production and participation of parts of the population in that production, geographical mobility increased in Europe since the 15th century. The number of dropouts wandering around increased also. The other side is that the authorities, urban or national, became more aware of idle persons in a situation of shortage or supposed shortage of labour42.

IV - PUNISHMENT

  • 43 S. LUKES, A. SCULL, (eds.), Durkheim and the Law, Oxford, 1983.
  • 44 R. LEVY, Ph. ROBERT, Histoire et question pénale, Revue d'histoire moderne et contemporaine, 1985, (...)

34Do long-term developmental models exist for the overall changes in patterns of punishment? We may refer to Durkheim’s changes from repressive to restitutory law, or the change from criminality against collective property to crimes against individual property43. Durkheim combines the phenomenon of crime with punishment: crime is behaviour that is thought by 'healthy' citizens as being punishable. Durkheim distinguished two laws governing the evolution of punishment; the first law runs as follows: the intensity of punishment is greater in societies of a less developed type and when the central power assumes a more absolutist character. Lévy and Robert follow this line of thought and they say that in France there was a close link between the development of a repressive royal justice and the way the monarchy emerged44. In the Dutch Republic the practice of criminal justice remained largely a communal (urban/local) affair, but in the execution of penalties - e.g. on the scaffold - we find the same harshness, compared to France.

35Is it a question of quality and quantity? The quality of punishment, I would say, is largely a European matter. The quantity, that is the relative number of persons executed in a 'cruel' way, may reflect the character of the administration.

  • 45 S. LUKES, A. SCULL, Durkheim and the Law, p. 106.

36The problem is that of the classification of societies: 17th and 19th century France did belong to the same social type although its major regulatory institutions were quite different. The social typology and the governmental organs run a separate way45. So the explanatory power of Durkheim’s law is not very strong.

1. THE DEATH PENALTY

  • 46 A.H. HUUSSEN jr. Doodstraf in Friesland, 1701-1811, resultaten van een kwantitatief onderzoek, De (...)

37The use of the death penalty and its abolition in a number of countries is of course an interesting phenomenon. Here we see that during the 19th century the nation-state and its parliament had won a very decisive position. In the Netherlands it was the parliament that abolished the death penalty in 1870, but before that year this penalty was seldom used. In the province of Friesland, in possession of an independent court till 1811, no sentence involving the life of the offender, was found after 176546. In general there was an increase of sentences but on the whole we find much more leniency. So the parliamentary decision in the second half of the 19th century came almost one hundred years after the start of the actual decline of the death penalty.

2. THE PRISON

  • 47 P. C. SPIERENBURG, The Prison Experience, Disciplinary Institutions and their Inmates in Early Mod (...)
  • 48 J.G. PETIT, Ces peines obscures. La prison pénale en France 1780-1875, Paris 1990.
  • 49 H. FRANKE, Twee eeuwen gevangen, misdaad en straf in Nederland, Utrecht, 1990.
  • 50 S. LUKES, A. SCULL, Durkheim and the Law, p. 114-120.

38The emergence and development of prison sentences has been well researched and analysed. For the early modem period we have the recent study of Spierenburg47 and for the 19th century there are studies on France by Petit48 and the Netherlands by Franke49, the last two studies together counting more than 1600 pages. Durkheim’s second law is related to the emergence during the 19th century of punishment by deprivation of liberty in prisons50. It is supposed to have become the only means of punishment, with the abolition of the death penalty and other scaffold punishments. One might suppose that in Europe there were two periods of emergence of the prison as a solution for deviant behaviour: the sixteenth and seventeenth centuries and the 19th century. During the first episode the prison movement was limited in geographical scope: the city-states of the Northern Netherlands, some Hanseatic towns and London, whereas during the 19th century it became a European movement.

  • 51 P.C. SPIERENBURG, The Spectacle of Suffering, Executions and the Evolution of Regression: from a P (...)
  • 52 M. FOUCAULT, Surveiller et punir Naissance de la prison, Paris, 1975.

39In another study, Spierenburg has tried51 to demonstrate how and why the public scaffold punishment was replaced by imprisomment, bringing into the discussion the ideas of Michel Foucault52. Although Spierenburg’s arguments as to the low explanatory value of Foucault’s approach are correct, his own evidence and especially the social context is too limited - it is mainly Amsterdam - to explain a European-wide change.

VI - FINAL OBSERVATIONS

  • 53 See SHARPE's article in this volume.
  • 54 R. LEVY, Ph. ROBERT, Le sociologue et l'histoire pénale, Annales ESC., 1984, p. 406.

40Returning to the starting point of this paper, we may conclude that there were general European situations and developments in the criminal justice, punishment, criminality and criminals. How were these linked to those processes - mainly in the 19th century - that made the national states? Has there been a divergence, starting e.g. with a split in Europe between a Protestant and Catholic part? Was there a difference between countries which can be characterized in economic terms as modern? We may think of England and the Dutch Republic on one side and different territorial states in Germany and absolutist France on the other. Did the European countries have a different tempo in the process by which state and society became synonymous? One may say that the contemporary situation in Europe can be characterized as one in which state and society overlap considerably. That was not the case in early modem Europe. During that period the process of integration had to start53. Lévy and Robert speak of a 'société étatique' when this overlapping is maximised54. In that sense, we may say that the Dutch Republic with its small scale and fragmented political structure had a great number of 'sociétés étatiques', certainly in the beginning of its existence.

41One thing seems clear: in the late Middle-Ages, at its origin, the organisation of criminal justice already took two different paths; one path is characterized by an involvement of two forces, the city and the prince and the other path by a dominance of the prince or lord. The first path is found in the Low Countries, but also in German towns; the second path was taken in countries with a king able to monopolise political power in an early phase and here the king’s justice and king’s peace became the dominant organising principle.

42The dominant types of crime, may not be that different all over Europe and the same can be said about the use of punishment. This remark concerns the quality, maybe not the relative quantity of crimes brought before the courts. Perhaps it is now possible to write a more sophisticated overview of criminal justice and criminality in early modem Europe than it was a decade ago.

Notes

1 See e.g. H. DIEDERIKS, A. HUUSSEN jr., Crime and Punishment in the Dutch Republic, in La Peine (3rd part), Society Jean Bodin, Brussels, 1989, p. 133-159.

2 J.A. SHARPE, Crime in Early Modern England 1550-1750, London, 1984, p. 225.

3 C. EMSLEY, Crime and Society in England 1750-1900, London, 1987, p. 249.

4 C. EMSLEY, Ibidem, p. 1.

5 B. LENMAN, G. PARKER, The State, the Community and the Criminal Law in Early Modern Europe, in V.A.C. GATRELL, B. LENMAN, G. PARKER (eds.), Crime & the Law, the Social History of Crime in Western Europe since 1500, London, 1980, p. 11.

6 F. EGMOND, De Hoge Jurisdicties van het 18e eeuwse Holland. Een aanzet tot de bepaling van het aantal, ligging en begrenzing, Holland 1987, 19, p. 129-161.

7 R. LEVY, Ph. ROBERT, Histoire et question pénale, Revue d’histoire moderne et contemporaine, 1985, 27, p. 497-498.

8 B. LENMAN, G. PARKER, Ibidem, p. 47.

9 B. LENMAN, G. PARKER, Ibidem, p. 15.

10 M. R. WEISSER, Crime and Punishment in Early Modern Europe, Hassocks, 1979, p. 77.

11 M.R. WEISSER, Ibidem, p. 82.

12 M.R. WEISSER, Ibidem, p. 127-131.

13 M.R. WEISSER, Ibidem, p. 179.

14 For the Dutch Republic there is the exhaustive study by W. van ITERSON, Geschiedenis der Confiscatie in Nederland, Utrecht, 1957; in most provinces confiscation was abolished around 1730.

15 R.C. van CAENEGEM, Geschiedenis van het strafrecht in Vlaanderen van de XIe tot de XIVe eeuw, Brussel, 1954, p. 327-333.

16 R.C. van CAENEGEM, Ibidem, p. 311-323.

17 K. de VRIES, Bijdrage tot de kennis van het strafprocesrecht in de Nederlandse steden benoorden Maas en Schelde voor de vestiging van het Bourgondisch gezag, Groningen, 1955.

18 G. SCHWERHOFF, Köln im Kreuzverhör Kriminalität. Herrschaft und Gesellschaft in einer frühneuzeitlichen Stadt, Bonn/Berlin, 1991.

19 K.W. SWART, The Sale of Offices in the Seventeenth Century, Den Haag, 1949 (reprint Utrecht, 1980), p. 68-78.

20 J.E.A. BOOMGAARD, Misdaad en straf in Amsterdam. Een onderzoek naar de stratrechtspleging van de Amsterdamse schepenbank 1490-1552, Zwolle/Amsterdam, 1992, p. 22-27.

21 B.C.M. JACOBS, Justitie en Politic in's-Hertogenbosch voor 1629. De Bestuuroganisatie van een Brabantse stad, Assen/Maastricht, 1986, p. 20-30.

22 K.W. SWART, The Sale of Offices, p. 71-72.

23 J. B. GIVEN, Society and Homicide in Thirteenth-Century-England, Stanford, 1977, p. 5.

24 J.P.A. COOPMANS, Van beleid van politie naar uitvoering en bestuur (1700-1840), Biidragen en Mededelingen betreffende de Geschiedenis der Nederlanden, 1989, 104, p. 581.

25 T. van WEEL, De interjurisdictionele betrekkingen in criminele zaken van het Amsterdamse Gerecht (1700-1810) in S. FABER (cd.), Nieuw Licht op Oude Justitie, Misdaad en Straf ten tijde van de Republiek, Muiderberg, 1989, p. 23-48.

26 A.H. HUUSSEN, De betekenis van codificatie-gedachte en praktijk voor de natievorming, Bijdragen en Mededelingen betreffende de Geschiedenis der Nederlanden, 1989, 104, p. 638-653.

27 P.L. NEVE, Le statut juridique des réfugiés français Huguenots; quelques remarques comparatives, in La condition juridique de l'étranger, hier et aujourd'hui. Actes du Colloque organisé à Nimègue, les 9-11 mai 1988 par les Facultés de Droit de Poitiers et de Nimègue (Nijmegen), p. 223-245.

28 N. ELIAS, Über den Prozess der Zivilisation, Basel, 1939 (2 vols.).

29 Ch. TILLY, Coercion, Capital and European States ad. 990-1990, Oxford, 1990, p. 76.

30 Ch. TILLY, Ibidem, p. 96.

31 ) P.C. SPIERENBURG, De verbroken betovering, mentaliteitsgeschiedenis van Preïndustrieel Europa, Hilversum, 1988 (Heksenvervolgingen p. 105-143, especially p. 127-131).

32 B. SCHNAPPER, Voies nouvelles en histoire du droit. La justice, la famille, la répression pénale (XVIe-XXe siècles), Paris, 1991, p. 13-34.

33 J.M. DONOVAN, Infanticide and the Juries in France, 1825-1913, Journal of Family History, 1991, 16, 2, p. 157-176.

34 S. van RULLER, Genade voor Recht, Gratieverlening aan ter dood veroordeelden in Nederland 1806-1870, Amsterdam, 1987, p. 102-115.

35 D. de FEYFER, Verhandeling over den kindermoord, Utrecht, 1866, 57 p.

36 W. WÄCHTERSHÄUSER, Das Verbrechen des Kindesmordes im Zeitalter der Aufklärung, Eine rechtsgeschichtliche Untersuchung der dogmatischen, prozessualen und rechtssociologischen Aspekte, Berlin, 1973, p. 148.

37 J. HAYNAL, European Marriage Patterns in Perspective, in D.V. GALSS, D.E.C. EVERSLEY (eds.), Population in History, London, 1965, p. 101-143.

38 E. SHORTER, The Making of the Modern Family, New York, 1975.

39 F. EGMOND, Onderwerelden: marginaliteit en misdaad in de Republiek, in P. te BOEKHORST, P. BURKE, W. FRIJHOFF (eds.), Cultuur en Maatschappij in Nederland 1500-1850. Een historisc-antropologisch perspectief Meppel, etc., 1992, p. 149-177, especially p. 156.

40 B. D. PLAUM, Strafrecht, Kriminalpolitik und Kriminalität im Fürstentum Siegen 1750-1810, Siegen, 1990, p. 257.

41 J.A. SHARPE, Crime in Early Modern England.., p. 171.

42 C. LIS, H. SOLY, Poverty and C.apitalisatism in Pre-Industrial Europe, Brighton, 1979.

43 S. LUKES, A. SCULL, (eds.), Durkheim and the Law, Oxford, 1983.

44 R. LEVY, Ph. ROBERT, Histoire et question pénale, Revue d'histoire moderne et contemporaine, 1985, p. 484.

45 S. LUKES, A. SCULL, Durkheim and the Law, p. 106.

46 A.H. HUUSSEN jr. Doodstraf in Friesland, 1701-1811, resultaten van een kwantitatief onderzoek, De Vrije Fries. LXXII, 1992, p. 65-74.

47 P. C. SPIERENBURG, The Prison Experience, Disciplinary Institutions and their Inmates in Early Modern Europe, New Brunswick, London, 1991

48 J.G. PETIT, Ces peines obscures. La prison pénale en France 1780-1875, Paris 1990.

49 H. FRANKE, Twee eeuwen gevangen, misdaad en straf in Nederland, Utrecht, 1990.

50 S. LUKES, A. SCULL, Durkheim and the Law, p. 114-120.

51 P.C. SPIERENBURG, The Spectacle of Suffering, Executions and the Evolution of Regression: from a Preindustrial Metropolis to the European Experience, Cambridge, 1984.

52 M. FOUCAULT, Surveiller et punir Naissance de la prison, Paris, 1975.

53 See SHARPE's article in this volume.

54 R. LEVY, Ph. ROBERT, Le sociologue et l'histoire pénale, Annales ESC., 1984, p. 406.

Auteur

Herman Diederiks (1937-1995) was Universitair Hoofddocent at the Department of Socio-Economic History of the University of Leiden (The Netherlands). His interests were in urban history, criminal justice history and in history and computing. He was co-founder and president of the International Association for the History of Crime and Criminal Justice (IAHCCJ). His main publications are Een Stad in Verval: Amsterdam Omstreeks 1800, Demografisch, Economisch, Ruimtelijk (1982) and In een Land van Justifie (1992).

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