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Le pénal dans tous ses États

 | 
René Lévy
, 
Xavier Rousseaux

- I - Acculturation juridique et intégration nationale

The Nation-State, the Law and the Peasant in Nineteenth-Century Europe

Clive Emsley

Texte intégral

  • 1 C. EMSLEY, Peasants, Gendarmes and State Formation, in M. FULBROOK (ed.), National Histories and E (...)
  • 2 Quoted in A. SHUBERT, A Social History of Modern Spain, London, 1990, p. 182.

1In recent years there has been considerable research into the development of police forces in nineteenth-century Europe. However virtually all of this work has concentrated on urban forces: there has been very little serious investigation of rural police and, particularly, of the gendarmeries. The overwhelming majority of the peoples of nineteenth-century Europe were not urban dwellers and were policed, in addition to the local field guards, by the State’s gendarmes. I have argued elsewhere that, from Ireland to Russia and from Spain to Prussia, at least part of the gendarme's function was to show the flag. They were present in the villages of rural Europe with a complex function: in part they were to appear as the physical manifestation of the State and its law, to protect the rural communities from brigands; but they were also there to ensure that these communities obeyed the laws of the states and this meant ensuring that they met the obligations which the State demanded in the way of taxation and conscription. Like the police forces of the European empires at the close of the nineteenth-century, they were to colonise the rural districts of the nation-State, the final areas of Europe to be subjected to surveillance and control1. As General Leopoldo O’Donnell put it, in extreme terms, with reference to Spain in 1854: 'The distribution of the Guardia Civil in over 1000 detachments amounts to a fully military occupation of the entire national territory'2.

2But the study of gendarmeries leads to other, bigger questions concerning the European nation-State’s spread into its rural hinterland. When can it be agreed for certain that country districts were truly incorporated into nation-states? What was the role of the law in the spread of the State? What was the attitude of the peasant to incorporation and to the State? This paper, based essentially on secondary sources, is directed at these questions, but is little more than a first attempt to chart the territory.

I - THE NATION-STATE AND ITS LAW

3For most of the ruling elites of nineteenth-century Europe, and for a wide cross-section of constitutional theorists and liberal activists, the nation-State seemed the obvious unit either to create or consolidate. New states, such as those of the 'third Germany' - Baden, Bavaria, Wurtemberg, set about creating national identity, while some old ones, notably the empires of the east, set about stifling the aspirations of subject 'nations.'

  • 3 R. LEVY, X. ROUSSEAUX, Etat et justice pénale: un bilan historiographique et une relecture, IAHCCJ (...)

4There has been considerable interest, generating considerable research into the nation-State over recent years, and the topic has been approached from a variety of perspectives. While there has been a remarkable growth in criminal justice history, the law and justice have rarely been among the perspectives adopted for studying the nineteenth-century nation-State. This is a curious omission since penal justice functions as an instrument of the political affirmation of power over a territory. Moreover, it is a cultural carrier of the development of an ideology of both public order and judicial rationality3.

  • 4 Quoted in Ph. CORRIGAN, D. SAYER, The Great Arch: English State Formation as Cultural Revolution, (...)

5Modern nation-states may often have been created in coercion and violence, especially those which emerged from the revolutionary and Napoleonic period, and a leading historical sociologist, Philip Abrams, may have suggested that the 'State' is best understood as 'politically organised subjection'4, but the rulers of states and their apologists always insisted on the idea of their legitimacy and legality.

  • 5 D. CARPENETTO, G. RICUPERATI, Italy in the Age of Reason 1685-1789, London, 1987, p. 173; C. GHISA (...)

6The theorists of the Enlightenment were keen to see a new kind of judicial system based on the certitude of a written code, rather than on a multiplicity and variety of interpretations of common law developed in the medieval period. Antonio Muratori’s Dei difetti della giurisprudenza, published in 1742, praised the kind of legal codification carried out by Victor Amadeus II of Savoy during the 1720s, and opened up the reform debate in Milan, Modena and Naples5. Montesquieu urged that laws should be written in a simple and open manner.

  • 6 MONTESQUIEU, De l'esprit des lois, livre XXIX, chapitre XVI.

"Les lois ne doivent point être subtiles; elles sont faites pour des gens de médiocre entendement: elles ne sont point un art de logique, mais la raison d’un père de famille....
II faut dans les lois une certaine candeur. Faites pour punir la méchanceté des hommes, elles doivent avoir elles-mêmes la plus grande innocence"6.

7Beccaria encapsulated much of the enlightenment thinking in his Dei delitti e delle pene, published in 1764. His ideas were taken up by jurists and enlightened monarchs, notably by Grand Duke Leopold of Tuscany in the penal code which he introduced in 1786. The Cahiers des doléances of 1789 commonly called for simpler and more effective laws. The French penal code of 1791 was the first major manifestation of this new kind of law. It was closely linked with the Declaration of the Rights of Man; the sovereign people were the source of legitimacy, and it was now they who affirmed the penal sanction. According to the historians of the codification of the penal law in 1791, it was

  • 7 P. LASCOUMES, P. PONCELA, P. LENOEL, Au nom de l’ordre. Une histoire politique du code pénal, Pari (...)

"un événement profondément original en raison des frontières et du contenu qu’il donne au droit pénal. C’est en effet un ordre laïque et égalitaire qui est énoncé"7.

8Following on from the French example, a central characteristic of the nineteenth-century State was the way in which it defined itself and its citizens in laws, and these laws were always structured in measured language. The laws were drafted by ostensibly reasoning, pacific jurists; and, as the nineteenth century wore on, they were increasingly debated and passed by ostensibly civilian legislators. The laws were enforced by State functionaries who were also ostensibly responsible to the laws. Yet the law, although manmade, tended to take on a life and mystique of its own. It was above the legislature and the executive, even though it was established by the one and carried out by the other. The Germans spoke of the Rechsstaat, the State based on the law. The law became a cultural conduit by which the State was defined externally in relation to other states and by which, internally, the citizen, and aspects of his (and of course women were rarely regarded as citizens of the nineteenth-century State) behaviour were defined and categorised with reference to the State and to other citizens.

9Of course, once the State has its law, it must have the means to enforce that law. It could develop lowly elements of the old system, as for example in nineteenth-century Russia where the peasant land commune (obshchina) acquired more and more administrative tasks for the central State ranging from tax collection to the maintenance of law and order. Both liberals and socialist populists identified these changes as the State, and its willing agents the kulaks, undermined a traditional and hitherto unchanging element of Russian society. In a typical complaint the UFA provincial zemstvo board protested at the way in which, as a result of a regulation of June 1874, elected peasant officers were subordinated to the district police:

  • 8 C. PAPE, On the Margins of Utopia? Zemstvo Liberals and the Peasant Commune, Russian History, 1984 (...)

"It is not surprising that, having at its head a police agent, who is not held in respectesand who has been placed in an ambiguous position, the [peasant] community is deprived of any independence, any self-esteem, and is capable of the outrages that occur so frequently; the community of economic interests, which ought to direct and restrain the [peasant] community, is unable to overcome the influence of the corrupting principle that has been imparted to the village government"8.

10As will be shown below, the State might also renegotiate powers with any significant surviving local authorities or elites.

11While the concept of 'police' had made considerable progress since the seventeenth century, nineteenth-century states witnessed the appearance of new systems in the shape of professional law officers and professional, bureaucratic police forces. The model for the State-directed rural police forces was the gendarmerie nationale, and its immediate predecessor, the maréechaussée. The Austrian Empire had witnessed attempts to establish a gendarmerie-style force under Maria Theresa and, more significantly, under Joseph II. The Napoleonic Empire led to much of Europe experiencing the model at first hand, and while the French were ejected from their conquests and their satellites between 1812 and 1814, their military-style policemen remained.

  • 9 F. DIEU, Gendarmerie et modernité: étude de la spécificité gendarmique aujourd'hui, Paris, 1993, p (...)

12The gendarmerie nationale, as it was established in 1791, was styled as a 'national' institution; the only other institutions of the constitutional monarchy with 'national' in their name were the assembly, the navy, and the lottery. The gendarmerie was also tied to both the law and the regime. The men wore uniform buttons inscribed 'Force à la loi'; the reverse of their standards carried the motto 'Discipline et obéissance à la loi.' It has been suggested that the oath of allegiance sworn to the political regime was a rite of passage; the first official act of a man as he became a gendarme. The oath was a significant political act during the Revolutionary and Napoleonic periods: following the Law of 24 nivôse, an V, the men swore 'haine à la royauté et à l’anarchie... attachement et fidélité à la République et à la constitution de l’an III'; seven years later they swore 'obéissance aux constitutions de l’Empire et fidélité à l’Empereur'; and, of course, subsequent regimes had their own versions9. Whether, outside of the turbulent days of the revolutions and coups which affected late-eighteenth and nineteenth-century France, these oaths really meant anything significant to men who took them must remain a moot point. But such oaths, and the bonding to the law, were clearly of importance to the jurists, the legislators, and the heads of the successive regimes.

II - THE LAST FRONTIER OF THE NATION-STATE

  • 10 R. AXTMANN, "Police" and the Formation of the Modern State. Legal and Ideological Assumptions on S (...)

13During the seventeenth and eighteenth centuries, the major European states had been involving themselves more and more in the lives of their subjects, seeking to develop and strengthen their economies. Military activity was the main imperative, but as part and parcel of this development State jurists refined the concept of 'police' and police forces were established for better surveillance of the State’s territories and better management of the internal problems which were perceived as threatening to undermine it, notably the vagabond poor and the idle beggar. This process of surveillance and management was best implemented in the principal towns of the states, but in many areas it still remained incomplete in the early nineteenth century10.

  • 11 E. WEBER, Peasants into Frenchmen: The Modernization of Rural France, 1870-1914, Stanford, Cal., 1 (...)

14Beyond the major towns were the rural provinces, often primitive, the last internal frontier for the nation-states. On much of continental Europe these were not finally integrated until the nineteenth century, and even then, as the examples of the Mezzogiorno and the Balkans show, such integration could be fragile. Eugen Weber’s conclusions that the peasants of rural France, at least that part of rural France south of the Saint-Malo-Grenoble line, were not fully transformed into Frenchmen until the period 1870-1914 may not have gone unchallenged, but he presents a convincing case for at least a significant percentage of rural dwellers doing very well without the national language and national measurements, critical of towns in general and Paris in particular and of the State’s justice until well into this period11.

  • 12 S. WOOLF, Napoleon’s Integration of Europe, London, 1991, p. 72-101; S. WOOLF, The Construction of (...)

15And France was an advanced country compared to many. It had been the standard bearer of enlightened rationalism in the eighteenth century. Napoleonic administration and bureaucracy, and the Napoleonic legal codes, had provided the model methods of government for the states of early nineteenth-century continental Europe12.

  • 13 J. BLUM, The End of the Old Order in Rural Europe, Princeton, N.J., 1978; B. MOORE Jr, Social Orig (...)

16Society is never static but the nineteenth-century nation-states of continental Europe were both symptomatic of, and contributors to, an acceleration of change in the old order. The French Revolution and the Napoleonic adventure were a watershed in this, particularly in Italy and Germany; it is a pity that so many books and so many courses in schools and universities take 1789 or 1815 as terminal dates when they would better come right in the middle to demonstrate the significance of the changes wrought between these years. This is not to offer again the hoary old chestnut of the French Revolution bringing about the end of feudalism, yet the late eighteenth and early nineteenth centuries did witness significant shifts in the relation between lord and peasant, and between State authority and rural communities. Jérôme Blum has provided a detailed analysis of the end of the old order in rural Europe, while historical sociologists working on a global scale have been keen to explore the relations between lord and peasant, and between State and rural hinterland, to make sense of the contrasting developments of democracy and fascism and the phenomenon of revolution13. But no-one has yet explored in general terms how the new nation-states began to exert their authority in the countryside, began to establish their laws, and how, in turn, the peasants responded.

17As the French Revolution and Napoleon hammered the old regimes of Europe with a new kind of military might - the mass army, with new ideologies and new administrative models - so the process of economic and social change in the European countryside also gathered pace. The lord’s authority over the peasant was breaking down under a variety of pressures. From the late seventeenth century at least, absolutist monarchs sought to diminish the authority of their nobles over the peasantry and to limit noble privileges. The monarchs were hoping to strengthen their own position, but they recognised the necessity of acting with circumspection, as attacks on privilege and property could rebound on the monarchs themselves. The needs of war, and the French example, helped to prompt the freeing of serfs in Prussia and accelerated the disentailment of lands, particularly church land, in Spain. But there were also pressures over a much longer term.

  • 14 J.Q.C. MACKRELL, The Attack on 'Feudalism' in Eighteenth-Century France, London, 1973, p. 66-76; 1 (...)
  • 15 E.M. LINK, The Emancipation of the Austrian Peasant, 1740-1798, New York, 1949, p. 120-121; R.M. B (...)

18Louis XIV had launched a sustained attack against seigneurial justice, and the authority of the royal courts had been expanded through the use of cas royaux and prévention. French monarchs of the eighteenth century had pursued a rather different policy; they had no intention of undermining their own courts, but they did seek to make seigneurial justice more efficient. However, while the possession of the rights of high, middle, or low justice conferred prestige and guaranteed the seigneur’s ability to get his feudal dues paid, the costs seems to have discouraged the seigneurs in many areas from maintaining the courts, except on the occasions when their own persons and property were directly affected. Also during the eighteenth century, it was almost impossible to find a French publicist prepared to defend the system of seigneurial justice14. Both Frederick the Great and Joseph II sought to prevent the owners of noble estates from exercising rights as judges unless they had successfully completed some legal training. In Austria the new judges had to be paid in money rather than getting their remuneration from fines and taxes in kind such as 'cheese sausages and pickled tongues.' The consensus, according to Edith Murr Link, was that the system of justice improved greatly. Yet probably this consensus needs to be qualified with the example of Prussia where it is clear that, when an unqualified noble appointed a judge for his patrimonial court, that judge invariably remained the noble’s man, and where, as in France, the costs of running such a court could lead to laxity when the noble’s interests were not directly involved15.

  • 16 A. COBBAN, The Social Interpretation of the French Revolution, Cambridge, 1968, p. 27-28; MACKRELL (...)
  • 17 J. BLUM, End of the Old Order..., 1978, p. 207, and ch. 10 in general.

19If it was the war with Revolutionary and Napoleonic France which brought about the disentailment of church land in Spain, the disentailment of feudal lands in France had been progressing for centuries. In the sixteenth century, French jurists came up with the notion of domaine direct, for property which always remained in the hands of the seigneur, and domaine utile, which could be alienated. By the eighteenth century the domaine utile had come to be seen as the true right of property. The 'feudal reaction' of the eighteenth century, by which seigneurs sought to maximise the revenues of their feudal and seigneurial rights, was a perversion of the original purpose of the feudal regime in as much as these maximised profits were in no sense to enable the seigneur to carry out his military duties, and the seigneur did little to protect his peasants16. The' feudal reaction, served further to fray the bonds between lord and peasant. Nor was it confined to pre-Revolutionary France; across much of Europe during the eighteenth century, nobles were acquiring more and more peasant land, resurrecting old dues and looking for new ones17.

  • 18 H. HARNISCH, Peasants and Markets: The Background to the Agrarian Reforms in Feudal Prussia East o (...)
  • 19 J. BLUM, Idem, p. 246.

20The increasing profitability of agriculture brought about by new farming methods and the demands of expanding populations at the end of the eighteenth and beginning of the nineteenth centuries also contributed to the changing relationships between noble and peasant. In East Prussia, for example, peasants who held land recognised the value of producing for the expanding market; they became sufficiently wealthy to pay half or full labour service commutation fees and even, on occasions, to engage the Junkers in lawsuits18. Across Europe bigger farms meant bigger mortgages, and more estates changed hands. The sudden decline in agricultural prices during the second decade of the nineteenth century led to more estates finding new owners as bankruptcies led to foreclosures on mortgaged properties19. The new patterns of cultivation were often regarded with suspicion by the peasantry but they also brought the system of serfdom into question among agricultural theorists: was it the most efficient form of labour? New landowners, not always necessarily noble, and much larger farms further weakened the old links, the validity of serfdom and the traditional justifications of paternalism. 'A single individual now owns the property of ten noble families,' lamented one Silesian Landrats,

  • 20 R.M. BERDAHL, The Politics of the Prussian Nobility..., p. 77-90; quotation at p. 81.

"and, in what to him is a trivial business speculation, he trades an estate as quickly as a suit in his wardrobe and, with the estate, unfortunately also the poor peasants, who in the course of a year often have many lords, each of whom demands more of them than the previous master. In this way it is unavoidable that the bond that once intimately united the lord with his peasants is completely dissolved"20.

21However, it was possible for the frayed ties in lord-peasant relations to be renewed. In spite of emancipation the Prussian Junkers clung to, and reshaped the traditional ideology of landlord paternalism. The Junkers’ economic position greatly assisted them in this; while socially they were a gentry of the old style, they did not derive their income from rents, rather they were agricultural entrepreneurs working their estates for profit. Thus, they had a direct working relationship with their peasants as well as a strong motive to defend Prussian, and subsequently German, agriculture in the market place. At the opposite end of Europe, in Calabria, for a brief period a new system of latifundia developed with landowners guaranteeing employment to the local peasantry thus restoring some strength to landlord-peasant relations and retarding the development of an agricultural proletariat.

22The same broad developments across Europe often had quite different social and political outcomes, primarily because of the different contexts in which they occurred. Thus, in some areas the nation-State moved in to fill what had largely become a vacuum: Ireland presents an obvious example. The Irish gentry considered themselves the equivalent of their English counterparts, but unlike those counterparts, as magistrates, they proved quite incapable of administering the law and preserving the peace. There were a variety of reasons for this, but their incapacity enabled, and arguably even required, the State to develop a centralised gendarmerie, the Royal Irish Constabulary, which was quite unlike the police forces created as a result of legislation enacted by the same State, for England, Scotland and Wales. In France, the increasing reluctance of the old regime nobility to spend time and money on seigneurial justice, except in their own interest, weakened their claims to continue with the role. The formal abolition of feudalism in 1789 created the vacuum which the State could fill with its expanded gendarmerie and new, codified legal system; though, of course, on the ground where regionalisms and old loyalties continued, the reality of change was more gradual.

  • 21 R.M. BERDAHL, The Politics of the Prussian Nobility..., p. 212 and 221.

23In other areas the nation-State was checked in some measure by a still powerful nobility. The Prussian Junkers may, during the eighteenth century, have enforced their rights to seigneurial justice in much the same way as the French nobility, but they did not follow in the steps of the liberal nobility of the French National Assembly. They clung to their powers protesting their loyalty to the king of Prussia, but manifesting hostility to government and administrative changes which encroached on their authority. As the nineteenth century progressed the Junker landowner became, in some measure, the representative of State law, and he often saw the problems inherent in his police and judicial role as a result of such change. The system which developed in Prussia was thus one of much greater compromise between the State and a still powerful gentry21.

  • 22 D. MACK SMITH, Modern Sicily after 1713, London, 1968, chapter 39 and p. 407-408; G. FIUME, Le ban (...)

24Bourbon Sicily was too remote from Naples for any successful administration and control. In many instances the only effective local government in the interior was that of local notables. They avoided the land tax, preserved their latifundi and even extended them at the expense of local communal lands often avoiding the compensation decreed by the State, or delaying payment with interminable law cases. The nobles, and the increasingly powerful middle men who commonly acted as their agents, exercised control through a system of clientage and the use of strong-arm men, which the feeble Bourbon gendarmerie could not displace22. United Italy reveals how a nation-State might also evolve an understanding with its nobility and gentry, but leading to very different outcomes and structures in different regions. In the north, the House of Savoy and its liberal regimes developed an understanding with the local elites, and here the enforcers of the law received a broad degree of legitimacy. In the Mezzogiorno, in contrast, the elites were often as opposed to the nation-State as were the peasants and their urban cousins. Here the old system of political clientage continued and seeped into the fabric of the State itself. The Carabinieri remained outsiders: the law, and positions within the law, were acquired and used to maintain existing patterns of authority and patronage.

III - THE PEASANT’S PERSPECTIVE

  • 23 K. MARX, 'The Eighteenth Brumaire of Louis Bonaparte', in D. FERNBACH (ed.), Surveys from Exile. K (...)

25The word 'peasant' covers an enormous social category. A minimalist definition concentrates on the owner-exploiter. It was this group that Marx considered to make up the mass of the French population but with little awareness of each other, no national links and no political organisation, 'much as potatoes in a sack form a sack of potatoes'23. The maximalist definition of 'peasantry' embraces all of those engaged in agricultural pursuits, including wage-labourers with the owner-exploiters, whose link with the soil tended to give them a similar outlook and life style.

  • 24 P. BURKE, Popular Culture in Early Modern Europe, London, 1978, chapter 1.
  • 25 I. FARR, "Tradition" and the Peasantry. On the Modem Historiography of Rural Germany, in R.J. EVAN (...)
  • 26 D. B. SAUNDERS, Historians and concepts of Nationality in Early Nineteenth-Century Russia, Slavoni (...)

26The emergence of the first folklorists and the 'discovery' of peasants coincided with the late-eighteenth-century deterioration of the old regime. The primitive peasant began to be perceived as the preserver of earlier, and consequently more pure, traditions of the nation24. From the noble savage, the intellectual moved to the noble peasant, but this was more of a political act, harnessing the peasantry for the new national aspirations. In Germany especially, the first half of the nineteenth-century witnessed a 'moral image' bestowed upon the peasant. His frugal life and noble labour were considered as producing virtues such as goodness, humility, loyalty, piety and natural wisdom. This image fed into popular literature, and became increasingly conservative, posing an alternative to the political threat in the cities and the problems generated by the capitalist process25. Of course, where a peasant nation seemed to conflict with the official concept of the nation, its traditions and history might be stifled. In the aftermath of Napoleon’s fall, Zorian Dolega Chodakowski, a Polish-born nobleman who had fought for the Napoleonic Duchy of Warsaw, wrote a history of non-Russian Slavs drawing on the folk songs and stories of Polish and Ukrainian peasants. The work was one of several contributing to a debate about Slavonic culture; but such debates were suppressed under Tsar Nicholas I as official national (narodnost) history began to be produced with an official line on the southern and western parts of the empire26.

  • 27 E. GELLNER, Plough, Sword and Book; The Structure of Human History, London, 1988, chapter 2.

27The spread of the law into the countryside was part and parcel of the development of the State. The State generally insisted that its law was part of a civilising process. Enlightenment thinkers sought the creation of institutions and social organisations which conformed to their perceptions of rationality and civilisation. In the nineteenth century the idea was strongly held that institutions and social organisations were developing progressively along such lines27. The law was more rational and given the way that it was central to the all-important State it was a higher authority than individual revenge, community action or patriarchal action. These latter alternatives were, in varying degrees, portrayed as potentially barbaric and uncontrolled, arbitrary and partial.

  • 28 E. GELLNER, Idem, p. 40; J. FAVRET-SAADA, Deadly Words: Witchcraft in the Bocage, Cambridge, 1980, (...)

28Professional law officers and policemen tended to dismiss the peasantry as ignorant, devious, sometimes dangerous. Some of the early anthropologists described peasant beliefs and practice in rather similar terms. Yet the eighteenth and nineteenth-century peasants lived in a world that made perfect sense to them. Their rituals had a meaning and were not simply to be dismissed as something left from an earlier time, or which the peasants themselves considered to be ineffective. Perhaps it is the 'translation' of these beliefs by rational men for other rational men, which makes the beliefs appear silly; and many such 'translations' have probably suffered from the rational medium’s inability to penetrate the peasant community's perceptions. Examinations of witchcraft provide one, perhaps the best, example of this. Only when she herself was 'caught' did the anthropologist Jeanne Favret-Saada hear the local words for sorcerers in north-west France, let alone have the peasantry sharing any of their perceptions with her; and this between 1969 and 197528.

  • 29 D. MACK SMITH, Modern Sicily, p. 441.
  • 30 Quoted in R.M. BERDAHL, Politics of the Prussian Nobility..., p. 137.

29For the State administrator, and the policeman, the peasant was often a problem who had little conception of, and probably even less time for, the State. The refractory peasant conscripts of Revolutionary and Napoleonic France offer a good example of this. But the problem was not simply a French one. For some years after unification the peasants of Sicily believed that Italia, or rather La Talia, was the wife of Victor Emanuel II29. 'The State is a nonentity for the peasant', declared Friedrich von der Marwitz, 'because he can neither see it nor comprehend it.' Marwitz, a solid example of the conservative, paternalist Junker, went on to explain how best to reconcile the peasant to the State. 'The intermediate authority, the noble lord, however, [the peasant] knows completely because he lives with him, and through him he learns to know the State'30.

  • 31 P. SAHLINS, Boundaries. The Making of France and Spain in the Pyrénées, Berkeley, 1989.

30The implication here is that the State was something which had to be imposed on the peasant. In many respects this has become something of an orthodoxy among historians. They, as well as anthropologists and folklorists, have tended to see the State as created from the centre and requiring the giving up of the peasant’s local sense of place and identity. Yet it seems that, in borderlands at least, the process was rather more two-way. In the Cerdania region of the Pyrénées nationality could be invoked among the peasantry to identify rival towns or villages and to ostracise individuals not behaving in the manner expected by the community. Here the nationality 'French' or 'Spanish' was commonly imposed on the opponent without, necessarily, those using the term admitting membership of the other nationality. At the same time the peasants could oppose the demands of the State within which they lived. While the people on both sides of the border spoke Catalan, it appears that they did not perceive of themselves as members of a Catalan nation31.

  • 32 N. DYONET, L’écho du brigandage dans les cahiers de doléances du Loiret et du Cher, in J. NICOLAS (...)
  • 33 J. DICKIE, A World at War: The Italian Army and Brigandage 1860-1870, History Workshop Journal, 19 (...)
  • 34 A. BLOK, The Mafia of a Sicilian Village, 1860-1960: A Study of Violent Peasant Entrpreneurs, Pros (...)

31In addition to his selective reluctance to recognise or comprehend the State, the peasant was also a problem because several of his activities put him on the wrong side of the law. The most extreme example of the peasant offender was the bandit. The difficulty for the historian is that the word was used to cover a wide variety of offenses. 'Banditry' and 'brigandage' were the State functionary’s words for organised, or semi-organised, activity outside the State’s law. Some of this could be peasant protest, but not all. There were also bandits who robbed and violently attacked members of the peasantry. The difficulty arises particularly where the forces of the State, especially the military gendarmeries, appear to have given rather more form and structure to banditry and brigandage than such activity may, in most cases, have possessed32. In Italy during the 1860s the crime was so loosely defined that a band of three people, armed with agricultural tools could be labelled as guilty of brigantaggio33. The emergence of the notion that Mafia was a kind of criminal organisation in Sicily, rather than a development of the system of clientage, had a similar origin34.

  • 35 I borrow the term from Olwen H. HUFTON, The Poor of Eighteenth-Century France, 1750-1789, Oxford, (...)
  • 36 I. ROSONI, Criminalità e giustizia penale nello Stato Pontificio del secolo XIX°. Un caso di bandi (...)
  • 37 G.A. WAGGONER, The Black Hand Mystery: Rural Unrest and Social Violence in Southern Spain, 1881-18 (...)

32The peasant economy was often an 'economy of makeshifts35,' and the agricultural changes of the late eighteenth and early nineteenth centuries could adversely affect even this difficult existence particularly when communal land was transformed into private property and when, for example, sharecropping was increasingly replaced with new forms of land tenure and a wage-based labour market. Such was the situation in the Papal States, leading to a growing number of braccianti (day labourers) living, hand-to-mouth through activities which were labelled by the law in some instances legal, in others illegal. Much of the petty theft by the braccianti appears to have been tolerated and ignored by the landowners; but during the 1840s, around the town of Filottrano in the Marche, the situation exploded into an alarming outbreak of banditry, and the authorities responded with a massive investigation, a round up of sixty-nine suspects, and the trial of thirty-two36. In Andalusia the extension of latifundismo, harsh working conditions, the end of gleaning, the spread of piece-work for agricultural labourers (trabajo a destajo), together with a rise in population all contributed to the immiseration of the braceros. In turn the labourers responded with uprisings and labour organisation. In the early 1880s the latter resulted in the alarming revelations and trials of the possibly mythical Black Hand (la mano negra)37.

  • 38 See inter alia, P. SAHLINS, Boundaries..., p. 138-141, and 222.

33Elsewhere also, similar changes brought peasants into conflict with the State as its laws were deployed to end many old customs of the rural economy (e.g. gleaning, pasturage and wood collecting on common land) and other ways of making ends meet (e.g. smuggling generated by the State’s creation of frontiers, both internal and external, and poaching since game and other animals, like common land, became 'property.'). Wood collection and gleaning could be central to the economy of makeshifts. Poaching and smuggling both made sense to the peasant; though, in the late eighteenth and early nineteenth centuries, they were not necessarily practised in traditional ways or simply by those eking out a marginal existence38.

34The State jurist assumed that the State brought law and order to places where none had existed before, or where what passed for the law was at best unenlightened and irrational, and most probably also arbitrary, barbaric, and/or partial. The assumption was implicit in many of the traditional histories of State development which tended to associate social amelioration and progress with State action. This poses two key questions: first, how did communities, and individuals within those communities, respond to injuries and offences before the burgeoning of the nineteenth-century State? and second, why, how, and to what extent, did communities accept the new law and justice of the nation-State?

35Rural communities were as hierarchical as any other. The hierarchical divisions could be formalised into a system for resolving disputes as in the case of the old seigneurial courts. While, as noted above, the absolutist states of the old regime had often sought to curb seigneurial power, and in some regions seigneurs had been fully prepared to yield the expensive and troublesome responsibility of administering high, medium or low justice, elsewhere the gentry had clung tenaciously to these rights. As late as the end of the First World War the Prussian Junkers still possessed the rights of policing and punishing workers on their estates.

  • 39 N. CASTAN, Justice et répression en Languedoc de l’époque des Lumières, Paris, 1980, chap. 1; E. C (...)

36But the seigneur, or his representative-a land agent or local judge-was not expected to resolve complaints and injuries simply with recourse to old laws and seigneurial courts. As a man of authority in the community, he might be expected to bring the parties together so as to make an arrangement agreeable to both sides, possibly the return of stolen goods, possibly a marriage in the case of a dishonoured daughter, possibly a financial settlement. The local clergyman could play a similar role; on occasions they used the opportunity of a religious festival or other gatherings to resolve disputes, while offenders used similar gatherings to make confessions and restore wrongly appropriated goods39.

  • 40 F. von HAXTHAUSEN-ABBENBURG, The Russian Empire: Its People, Institutions and Resources, 2 vols. L (...)
  • 41 J.A. PITT-RIVERS, The People of the Sierra, London, 1954, p. 190; J.C. SEBBAN, La sorcellerie en B (...)
  • 42 W. de BLECOURT, Witch Doctors, Soothsayers and Priests. On Cunning Folk in European Historiography (...)

37Other individuals might be approached for help by a peasant victim. The disappearance of an article of property, like other misfortunes such as the sickness of animals, was sometimes suspected as the result of sorcery. The victim’s response was therefore to visit a counter-sorcerer. But even if theft was suspected, the 'cunning man' or 'cunning woman' could be expected to employ his or her powers to identify the offender. Travelling in Russia in the early 1840s Franz von Haxthausen-Abbenburg witnessed a babushka called in to find a thief; surrounded by a group of villagers, she threw bread balls into a bowl of water, naming each ball after one of the watchers and promising that the ball with the offender’s name would sink. Usually, von Haxthausen was told, the offender spoke up before his or her ball was thrown40. Some individuals were marked as sorcerers from their birth; in Andalusia, for example, the sabia, or wise woman, acquired her 'grace' by being born a twin, born on Good Friday, by crying out while still in the wombs by being visited by the Virgin in dreams, or by having particular markings on the palm of her hand. In the Berry some witches were hereditary; here, generally, they were people who did not follow an agricultural trade; and a witch with a good reputation could attract clients from a considerable distance41. But, as has recently been noted, 'the study of cunning folk... has yet to start'42.

  • 43 O. ULBRICHT, The World of a Beggar around 1775: Johann Gottfried Kastner, Central European History (...)
  • 44 J. MOOSER, Property and Wood Theft: Agrarian Capitalism and Social Conflict in Rural Society, 1800 (...)
  • 45 M. BAUMEISTER, Arme "campesinos". Überleben und Widerstand in der Extremadura 1880 bis 1923, Berli (...)

38In some instances the victim was permitted, indeed expected by the community, to exact his own punishment if the offender could be identified. This punishment was generally physical, and it was expected to be kept within certain tolerated levels; it might even conclude with a drinking bout-the Abtrinken of north German artisans which concluded the autonomous justice system of their crafts and which, by the second half of the eighteenth century at least, was also followed among some groups of north German beggars43. There were occasions, however, when exasperated victims, either individually or collectively, went beyond community norms and responded to an offence with ferocity. The peasant proprietors of early nineteenth-century Minden, for example, responded to the wood thefts committed by landless labourers sometimes by appeals to the State’s laws, but also with charivaris, the destruction of offenders’ property and even lynching. They were far more uncompromising than the local gentry who were equally victims44. Yet landowners also sanctioned the summary physical chastisement of offenders, particularly on large-scale farming enterprises where they hired private guards. Physical punishment in these circumstances could be brutal, even lethal. The cattle ranges (dehesas) of Extremadura were notorious for the ferocious summary beatings administered by field guards45.

  • 46 S. WILSON, Feuding, Conflict and Banditry in Nineteenth-Century Corsica, Cambridge, 1988, especial (...)
  • 47 A. BLOK, The Mafia of a Sicilian Village.., p. 110-111.

39In parts of southern Europe, such as Corsica, revenge punishments for slights on a family’s honour merged into the blood feud; but this, unlike the behaviour of the guards of Extremadura, functioned under precise rules like a system of law. There were certain instances which could provoke and justify a vendetta: the dishonouring of a woman, a broken engagement, the killing of a close relative, or false testimony leading to the conviction of a member of a family. A State of hostilities had to be declared, followed by ritual dressing, semi-fasting, letting hair and beards grow, and preserving bloody relics and other reminders of the dead. Children, old men and women were generally immune from the violence; but feuds could get out of hand, break the rules and consequently lead to divisions within families46. A similar style of vendetta existed in Sicily. In March 1871 in Genuardo the 'bandit' Matteo cruelly mutilated and then killed seventy-year old Giovanni Jaconi in revenge for the murder of his father and brothers. 'No-one interfered. Everybody knew that this was to be done one day' recalled one man who had heard the details as a boy. In 1911, after more than thirty-five years in prison, Matteo was released, partly at the instigation of one of Giovanni’s nephews; he travelled to Genuardo and publicly thanked the nephew47.

  • 48 S. WILSON, Feuding, Conflict and Banditry..., p. 85-88.
  • 49 K.H. WEGERT, Contention with Civility: The State and Social Control in the German Southwest, 1760- (...)
  • 50 R. SCHULTE, The Village in Court. Arson, Infanticide, and Poaching in Upper Bavaria, 1848-1910, Ca (...)
  • 51 J.F. SOULET, Les Pyrénées au XIXe siècle, 2 vols, Toulouse, 1987, i, 152; E. CLAVERIE and P. LAMAI (...)

40In nineteenth-century Corsica, where feuding and killing over matters of honour were a way of life, theft was regarded as dishonourable. However, the appropriation of the necessaries of life in time of extreme hardship might be tolerated, and might, in the longer term, have served to strengthen the clientage system48. Elsewhere, in some instances the offender who was a native of the community might be tolerated almost as the village thief. In south west Germany, for example, there appears to have been some toleration of theft, but not of crimes against the person49. Theft in Upper Bavaria, however, could lead to an individual being ostracised from the community and consequently unable to find work; occasionally the outsider, in turn, might then seek revenge by burning the property of his principal persecutor50. Some local offenders could be forced into handing back things they had stolen; but others appear to have terrorised their community into ignoring their behaviour and leaving them alone. The problem is identifying the point at which victims, and communities, drew the line. On occasions it would seem that action was taken when the offender went too far with the goods taken or the violence inflicted, or when it was assessed that he or she had committed just one offence too many. But there were, at times, some in the community, or on its fringes, who were regarded as just too dangerous to seek to apprehend or punish. The man called Roucatian, declared one inhabitant of Soula in the Ariege during the 1840s, 'est si malfamé que presque partout on lui donnait à manger pour se mettre à l’abri des vols ou autres attentats dont on le savait capable: il était la terreur du pays'51.

  • 52 C. LISON-TOLOSAN, Belmonte de los Caballeros Anthropology and History in an Aragonese Community, P (...)

41In the Aragonese community of Belmonte de los Caballeros petty theft by poor members of the community seems to have been considered as largely unimportant. If, however, the offender was a person of some standing, a pudiente, matters were viewed in a different light. There were certain things which a pudiente was expected to do, such as contributing to the maintenance of roads and threshing floors, donating to festivals according to his means. There were also things which he was supposed never to do, such as buying up the land of a family in economic difficulties and stealing. Failure to live up to the code could lead to public shaming-his doors, for example, might be smeared with mud52.

  • 53 J. Le GOFF and C. SCHMITT (eds.), Le Charivari, Paris, 1981; but see also the warning by E.P. Thom (...)
  • 54 S. P. FRANK, Popular Justice, Community and Culture among the Russian Peasantry, 1870-1900, Russia (...)

42Shaming punishments might also be inflicted on other offenders. There is a growing literature on charivari, or rough music, scampanate, Katzenmusik53. This appears commonly to have been directed against individuals who transgressed the accepted sexual mores of a community, though in various forms it could also be directed against other kinds of offenders. In both France and Russia a thief might find himself having half his head and beard shaved. In Russia peasants commonly made an assessment of the scale of harm done and the motivation of the offender, and then inflicted summary punishment following an identifiable code; this was samosud, literally judging by oneself. A thief could be punished by being led round the village (vozhdenie vora, 'leading the thief, or simply vozhdenie) a ritual rather similar to a charivari. Where the offender was not prepared to participate, or when his or her offence had hurt the community particularly seriously, the ritual could be violent. The worst offenders, particularly those from outside the community and horse thieves especially, were brutally killed54.

43The practices described above were adaptable and elastic. They were well suited to small communities where everyone knew everyone else, and where the stranger was viewed with suspicion. Indeed, it would seem that the offender from outside was the one who was treated with the most severity, and the one who was more likely to be handed over to the State’s judicial officials. These societies constructed their own moral order, and were bound by it. But it was not a moral order which the State jurist either approved or understood. Moreover states, whatever their form, have tended to be jealous of their own authority. One element in Max Weber’s definition of the State was its insistence on the sole right to employ legitimate force within its boundaries; the State’s law enshrined and imposed this right.

  • 55 N. CASTAN, Justice et répression..., p. 15; E. FEL and T. HOFFER, Proper Peasants..., p. 362; and (...)
  • 56 R. SCHULTE, The Village in Court..., p. 35-37.
  • 57 J DEVLIN, The Superstitious Mind..., p. 116.

44The State’s laws were used by members of rural communities under the old regime, but not simply because those communities accepted the claims for it being a higher, rational, civilised authority. Peasant sayings reflect a profound suspicion of 'justice' as administered by the authorities and of lawyers in particular. 'Un mauvais accord vaut mieux qu’un bon procès' was a popular saying in Languedoc; while Hungarian peasants warned: 'Beware of three things - the lawyer, the pharmacy, and the inn; they ruin everybody'55. Indeed, well into the nineteenth century, to peasant eyes the law could seem quite irrational. It was possible for a rural community to be convinced of an offender’s identity, yet for the State’s courts to fail to prosecute, or to convict, on the grounds of insufficient evidence56. Some victims of witchcraft, convinced that, having consulted a counter-sorcerer, they had killed their tormentor, found they were not to be prosecuted on the grounds that a case could not be based on what the law considered an illogical, superstitious premise. Others were convicted of murder, when they protested that they had only meant to frighten their tormentor, and yet more, who had planned murder, were given lenient sentences on the grounds that they had acted through ignorance and superstition57. What was rational about such law?

45Similarly, no matter how much the State jurist might insist that the State’s law was impartial, it did not always appear that way to the suspicious countryman. The State’s law depended upon individuals coming forward to give information so that a case might be assessed. If individuals were too suspicious, or perhaps too frightened to come forward, then either no case could be made, or the agents of the State could be put in the position of appearing to take sides in a community squabble. A French justice of the peace outlined the potential difficulties to the minister of justice in Year IV:

  • 58 Quoted in O. FESTY, Les délits ruraux et leur répression sous la Révolution et le Consulat, Paris, (...)

"Le propriétaire qui voit un animal sur son terrain le saisit; cette saisie se fait sans témoins: le propriétaire de l’animal dénonce le saisissant comme voleur; quelquefois on en vient aux mains.... Le fonctionnaire public doit sûrement, dans ce cas, être embarrassé à rendre justice"58.

  • 59 P. SAHLINS, Forest Rights. The War of the Demoiselles in Nineteenth-Century France, Cambridge (Mas (...)

46Under the old regime feudal rights were often contested at law. While the law may have been stacked against them, peasants were prepared to use it, if only as a means of last resort to enforce their claims and their perception of justice. Similarly, during the nineteenth century, peasant communities might follow traditional means and rituals of protest in conflicts over the removal of what they considered to be their customary rights - la guerre des demoiselles in the Ariège, provides one of the best-known examples59 - but they also fought their claims at law.

  • 60 J.C. FARCY, Les archives judiciaires..., p. 340-343 and 346-347; R. SCHULTE, The Village in Court. (...)
  • 61 M. BAUMEISTER, Arme "campesinos"..., p. 178-180.

47The law was also used at times because it was seen by country people as a means of enforcing their perceptions of the social order or of justice. While family or community solidarity could impede the authorities as relatives and neighbours closed ranks to prevent the investigation of an intervillage rixe, and while widows or widowers might refuse to give evidence in court about beatings by their sons, the law could be invoked to bolster male and paternal dominance in the rural household, or to bring justice when all else seemed to have failed. For a variety of similar reasons the paternal relationship between master and servant could be reinforced by invoking the State’s law, but the same law was also ignored at such times as it was considered inconvenient60. When a notoriously dissolute nobleman and a friend attempted to rape a young woman and ended by murdering both her and her mother in Don Benito, Extremadura in the summer of 1902, the local community mobilised to ensure that the State’s law was applied to the full against the offender in spite of his family’s local power. Furious crowds compelled the local priest who had heard the accused’s confession to break the tradition of secrecy; they forced the judges from Badajoz to hold the trial in Don Benito. They were unsuccessful in demanding that the death penalty be carried out in public; but they did force their way into the prison yard to ensure for themselves that the offenders were dead61.

  • 62 Vestnik politsii (Police Herald), 1908, 18, p. 18. My thanks to Dr. Mark Galeotti for this referen (...)
  • 63 J.A. PITT-RIVERS, The People of the Sierra..., p. 169-175 and 190.

48Peasants might use the State’s law also because it was cheaper, easier, and quicker, but this presupposed State functionaries on the ground who could make it so. Such functionaries began to appear in increasing numbers during the nineteenth century most notably in the form of gendarmes or magistrates. In some states these men were very thin on the ground and consequently could have had relativey little impact. 'How was I to enforce the law over a population of 60,000 scattered in 48 settlements with only four sergeants and eight rural guardsman?' queried a Russian police officer at the beginning of the twentieth century62. But where there were policemen comfortably established in reasonable numbers, confident of their strength and the potential for support, they probably appeared to the peasant as worth trying, particularly for protection against brigands-and not all brigands were romantic Robin Floods-or others deemed dangerous or undesirable. Of course, a victim might choose to report a theft to both the local gendarmes and the local sorcerer; in such instances the police could turn a blind eye, though some strongly disliked sorcerers becoming involved in their cases63. Similarly gendarmes could turn a blind eye to charivari; but they could also chose to define it as riot and samosud as, at best, assault and at worst murder. Police activity against these forms of enforcing community norms probably contributed towards undermining them.

49The gendarmes were outsiders in as much as they were posted to their small barracks by a central authority. Mayors and justices of the peace were men from the local community, but as the nineteenth century progressed they became increasingly tied to the nation-State; it was the State which, as often as not, appointed them and underpinned their legitimacy. Their acceptance of the State, and of its legal structure, led them to turn their backs on the local worthy’s traditional role as mediator. In 1833 the Mayor of Teyssieu explained to the Procureur du Roi in Figeac:

  • 64 Quoted in F. PLOUX, L’"arrangement" dans les campagnes de Haut-Quercy (1815-1850), Histoire de la (...)

"Les gens de ce pays-ci ont une habitude bien coupable, selon moi: on tient des propos contre l'un et contre l’autre; on s’engage dans les disputes, dans les querelles qui se terminent ordinairement par des coups et des blessures, et par un arrangement pécuniaire qui lave toutes les infirmités des blessés"64.

50There would have been little point in requesting the good offices of such a mayor to resolve any dispute or offence. As a result, at least in the Haut-Quercy in the first part of the nineteenth century,'arrangements1 began to be largely in the hands of friends and relations of the victim and offender. But as people were required to rely on the good offices of individuals with no particular standing in the community, it was less likely that both sides would readily agree to any settlement. This, together with the gradual decline of church authority, probably served as an additional spur to the peasant victim to seek satisfaction and redress through the channels of the State’s law.

  • 65 M.J. BROERS, War and Crime in Napoleonic Italy, 1800-1814: Regeneration, Imperialism and Resistanc (...)

51The peasant was a pragmatist. He turned to the State’s law when it seemed worth trying after other alternatives had failed, or in parallel with other alternatives-a belt to go with his braces. At times too, it appears that the peasant employed the law less as a means of resolving a dispute or an offence, and more as a means of pressing forward with a long-term problem or feud; the law was another way of eliminating a rival or an enemy, of dishonouring or mining him. The Napoleonic regime in Italy found personal vendetta merging with political rivalry to bring forth denunciations of spurious criminal offences65.

52This pragmatism may also have led the peasant to interpret the rhetoric of liberty preached in revolutionary moments in the manner that best fitted his perception of the world. The high flown political liberty preached by a Mirabeau or even a Robespierre took on a rather different meaning among peasants who had long wrestled with seigneurs and their agents over feudal rights. As one farmer protested in Year VII, the peasant offender was now filled with the idea of his rights.

  • 66 Quoted in J.C. FESTY, Les délits ruraux..., p. 22.

"II se regarde comme unique propriétaire des biens nouveaux qui se trouvent à sa portée, et il ne doute pas qu’il puisse ravager à son gré. II a appris à convoiter les propriétés particulières; selon lui, les unes sont trop étendues, les autres sont entre les mains de personnes qu’il n’a pas eu le temps de dépouiller"66.

  • 67 P. SAHLINS, Forest Rights..., p. 106-109; ID., Boundaries..., p. 229.
  • 68 A. SHUBERT, A Social History of Modern Spain, London, p. 92 and 97.
  • 69 R. SCHULTE, The Village in Court..., p. 180-181.
  • 70 A. de CLEMENTI, Vivere nel latifondo. Le comunità della campagna laziale fra '700 e '800, Milan, 1 (...)

53Peter Sahlins has argued that Revolution left a potent memory in the consciousness of the peasants of the Ariege which was rekindled with the July Revolution of 1830. In 1830 they discarded their disguises as les desmoiselles and assumed the right publicly to take possession of their forests. A generation later, following the February Revolution of 1848 the municipal council of Osseja, in the French Cerdagne, announced that the communes could now take control of their woods67. Peasants in Valencia interpreted the liberal Cortes’s decree of August 1811, which abolished seigneuries, as putting an end to all territorial and jurisdictional privileges. In the revolution of 1868, while the new authorities were arguing in defence of property, landless peasants occupied and divided land which they considered to have been acquired illegitimately and justified their behaviour with reference to the revolution68. The abolition of the last vestiges of feudalism in Bavaria in 1848, and parallel changes in hunting rights, prompted the activity of large gangs of peasant poachers infuriated by the destruction wrought on their land and crops by protected game. The situation was such that the authorities contemplated deploying the army to check the gangs69. The effervescence of the Roman Republic excited peasants in the Lazio who adopted a new attitude to authority and the Papal regime; moreover, as the movement for enclosure developed after 1849, even drovers were to be found in the archives seeking a legal basis for their claims70. The new political language of rights and liberties was, according to the State jurist, underpinned by the law, and no matter that it was interpreted tangentially by the peasant, the two combined to give him a greater awareness of the larger community of the developing State and his place within it.

  • 71 See, for example, C. RAMSAY, The Ideology of the Great Fear: The Soissonais in 1789, Baltimore, 19 (...)

54Part of the problem probably lay in the manner in which information about the law, rights and liberties was spread through the countryside, another subject which has been rarely considered. Country people at the end of the eighteenth century had a primarily oral culture, and while there was a gradual shift to the use of the written word, even by the end of the nineteenth century this oral culture survived, much stronger in some parts of Europe than in others. Furthermore, the oral culture may have employed a patois, or even a separate tongue, at some remove from the national language of the State. There were long sessions of involving the reading out of decrees after mass in French villages in 1789; and while the listeners were used to oral exposition, it remains a moot point as to how much they could have absorbed and understood. Parish priests, schoolmasters, and police officials provided one way for the law to be made public, though such men may not always have had the literacy and knowledge to do this without error. Private intermediaries and attornies, sometimes with an axe to grind, were another71.

  • 72 E. CLAVERIE, De la difficulté de faire un citoyen: les "acquittements scandaleux" du jury dans la (...)

55Moreover, while attempts by the State’s jurists and legislators to extend participation in the legal process also helped to integrate the peasantry, this was not always done as smoothly as was anticipated, or with the results that were expected. In France the jury was created by the judicial reforms of the Revolution. But juries in early nineteenth-century France did not always behave in accordance with the logic of the law and the with rationality expected by the enlightened reformers. The better-off often avoided jury service. In some areas, like the Lozère, many jurors had an imperfect knowledge of French. Provincial juries acquitted the guilty even in the most open and shut cases, and they even convicted against the evidence. It appears that, rather than following the logic of the judicial system, jurors commonly brought to the seclusion of the jury room a variety of assumptions and prejudices which made them sympathetic to local men of substance and influence, and more generous towards offenders against the person than offenders against property72.

  • 73 I. BRIDGEMAN, Policing Rural Ireland. A Study of the Origins, Development and Role of the Irish Co (...)

56The Irish legal system developed out of that was used in England, where the jury had played a significant role in trials since the middle ages. However, by the close of the eighteenth century it was becoming increasingly difficult to obtain convictions in the Irish courts in cases of agrarian outrage, partly because of intimidation, but also, no doubt because of juror sympathy with the accused. Local members of the criminal justice system, together with members of the new Irish Constabulary were required to prepare lists of reliable jurors. Yet it was still not always possible to secure convictions even in what appeared to be relatively straight forward cases which did not involve contentious land issues73.

57In Russia some conservatives opposed the jury system on the grounds that the people were not yet ready for such a step; nevertheless the jury system was established in the Judicial Reform of 1864, one of the most radical and significant of Alexander II’s Great Reforms. In some respects, however, the conservatives were proved right; juries, often largely composed of peasants, acquitted large numbers of those charged with political offences such as sedition or attacks on officials. As a result the competence of the jury began to be restricted. The law of 7 July 1889, establishing one set of restrictions, explained that these were necessary because of

  • 74 J.W. ATWELL Jr., The Russian Jury, Slavonic and East European Review, 1975, 53, p. 44-61: quotatio (...)

"the absence in our country of a proper relationship between the competence of the jury and the qualities inherent in that section of society from which, for the most part, the jurors are drawn.... The jurors, of whom the majority belong to the least enlightened class of the society, successfully fulfil their obligations only in those instances where the simplest criminal deeds are subject to their judgement"74.

  • 75 J. BLUM, The End of the Old Order in Rural Europe, Princeton, 1978, p. 353.
  • 76 M. AGULHON, The Republic in the Village: The People of the Var from the French Revolution to the. (...)
  • 77 M. BAUMEISTER, Arme "campesinos"..., p. 220-238.
  • 78 P. McPHEE, The Politics of Rural Life: Political Mobilization in the French Countryside, 1846-1852 (...)

58Yet the use of the law and involvement with the law, for whatever motive or reason, was a means of further incorporating the peasant into the national community, even if this was not necessarily done in the way that those at the helm of the State would have wished. In addition to the peasant’s awkward behaviour as a juror, while some of the lawyers who took on cases for peasants were pettifoggers intent on squeezing their clients for all they could75, others were political radicals who set out to radicalise the peasants as they worked for them76. The primary school teacher, Bugarin, who advised the small cattle breeders of Alburquerque in the 1890s and helped them to phrase their complaints, may have been a man of the left, and, of course, he was branded as a troublemaker and an 'anarchist' by the authorities and the large landowners, yet no such charge was ever made to stick before a court77. This is not to say that peasant radicalisation was the result of their being acted upon by educated, radical townsmen; contemporary officials may have believed this, and some historians, perhaps undercritical of the official sources, may have perpetuated the belief. Peasant radicalisation in France during the Second Republic, for example, appears to have occurred largely in those areas where the activists appear to have been telling the peasantry what they wanted to hear78.

59Nineteenth-century peasants took from the State what they wanted, and what made sense to them; and as they took, and were forced to partake, so they became more integrated. As the nineteenth century progressed the European peasant was subjected to increasing pressures which extended his perceptions beyond his pays natal - the army, education, greater contact with the outside world through roads and railways. Equally important was the State’s law which defined the peasant’s position in the State, his relationship with other citizens, and increasingly involved him as a participant, some-times willing, sometimes not; and there too were the State functionaries, gendarmes, mayors, schoolmasters and others. Colonisation was not something which the states of nineteenth-Century Europe inflicted simply on Africans and Asians, nor was it just a process of imposition from the top down.

Notes

1 C. EMSLEY, Peasants, Gendarmes and State Formation, in M. FULBROOK (ed.), National Histories and European History, London, 1993.

2 Quoted in A. SHUBERT, A Social History of Modern Spain, London, 1990, p. 182.

3 R. LEVY, X. ROUSSEAUX, Etat et justice pénale: un bilan historiographique et une relecture, IAHCCJ Bulletin, 1992, 14, p. 106-138.

4 Quoted in Ph. CORRIGAN, D. SAYER, The Great Arch: English State Formation as Cultural Revolution, Oxford, 1991, p. 7.

5 D. CARPENETTO, G. RICUPERATI, Italy in the Age of Reason 1685-1789, London, 1987, p. 173; C. GHISALBERTI, 'L’influence du droit révolutionaire en Italie au temps du Directoire', in La Révolution et l'ordre juridique privé, Paris, 1988, p. 551-556. For an interesting perspective on the significance of the new codes see Y. CARTUYVELS, Eléments pour une approche généalogique du code pénal, Déviance et Société, 1994, 18, p. 373-396.

6 MONTESQUIEU, De l'esprit des lois, livre XXIX, chapitre XVI.

7 P. LASCOUMES, P. PONCELA, P. LENOEL, Au nom de l’ordre. Une histoire politique du code pénal, Paris, 1989, p. 9.

8 C. PAPE, On the Margins of Utopia? Zemstvo Liberals and the Peasant Commune, Russian History, 1984, 11, p. 220-235.

9 F. DIEU, Gendarmerie et modernité: étude de la spécificité gendarmique aujourd'hui, Paris, 1993, p. 122-124.

10 R. AXTMANN, "Police" and the Formation of the Modern State. Legal and Ideological Assumptions on State Capacity in the Austrian Lands of the Habsburg Empire, 1500-1800, German History, 1992, 10, p. 39-61; R.M. SCHWARTZ, Policing the Poor in Eighteenth-Century France, Chapel Hill, 1988, p. 21, 25; A. WILLIAMS, The Police of Paris 1718-1789, Baton Rouge, 1979, p. 25-28, 44; 104-111.

11 E. WEBER, Peasants into Frenchmen: The Modernization of Rural France, 1870-1914, Stanford, Cal., 1976.

12 S. WOOLF, Napoleon’s Integration of Europe, London, 1991, p. 72-101; S. WOOLF, The Construction of a European World-View in the Revolutionary-Napoleonic Years, Past and Present, 1992, 137, p. 93-98.

13 J. BLUM, The End of the Old Order in Rural Europe, Princeton, N.J., 1978; B. MOORE Jr, Social Origins of Dictatorship, and Democracy: Lord and Peasant in the Making of the Modern World, London, 1967; Th. SKOCPOL, States and Social Revolutions: A Comparative Analysis of France. Russia and China. Cambridge. 1979.

14 J.Q.C. MACKRELL, The Attack on 'Feudalism' in Eighteenth-Century France, London, 1973, p. 66-76; 150-160; S.G. REINHARDT, Justice in the Sarladais, 1770-1790, Baton Rouge, 1991, p. 56-64.

15 E.M. LINK, The Emancipation of the Austrian Peasant, 1740-1798, New York, 1949, p. 120-121; R.M. BERDAHL, The Politics of the Prussian Nobility: The Development of a Conservative Ideology 1770-1848, Princeton, N.J., 1988, p. 60-62.

16 A. COBBAN, The Social Interpretation of the French Revolution, Cambridge, 1968, p. 27-28; MACKRELL, The Attack on 'Feudalism'..., 1973, p. 61.

17 J. BLUM, End of the Old Order..., 1978, p. 207, and ch. 10 in general.

18 H. HARNISCH, Peasants and Markets: The Background to the Agrarian Reforms in Feudal Prussia East of the Elbe, 1760-1807, and W.W. HAGEN, The Junkers Faithless Servants: Peasant Insubordination and the Breakdown of Serfdom in Brandenburg-Prussia, 1763-1811, in R.J. EVANS, W.R. LEE, (eds.). The German Peasantry: Conflict and Community in Rural Society from the Eighteenth to the Twentieth Centuries, London, 1986.

19 J. BLUM, Idem, p. 246.

20 R.M. BERDAHL, The Politics of the Prussian Nobility..., p. 77-90; quotation at p. 81.

21 R.M. BERDAHL, The Politics of the Prussian Nobility..., p. 212 and 221.

22 D. MACK SMITH, Modern Sicily after 1713, London, 1968, chapter 39 and p. 407-408; G. FIUME, Le bande armate in Sicilia dal 1819 al 1849: violenza e organizzazione del potere, Palermo, 1984.

23 K. MARX, 'The Eighteenth Brumaire of Louis Bonaparte', in D. FERNBACH (ed.), Surveys from Exile. Karl Marx: Political Writings, vol. 2, Harmondsworth, 1973, p. 239.

24 P. BURKE, Popular Culture in Early Modern Europe, London, 1978, chapter 1.

25 I. FARR, "Tradition" and the Peasantry. On the Modem Historiography of Rural Germany, in R.J. EVANS and W.R. LEE, The German Peasantry..., p. 9.

26 D. B. SAUNDERS, Historians and concepts of Nationality in Early Nineteenth-Century Russia, Slavonic and East European Review, 1982, 60, p. 44-62.

27 E. GELLNER, Plough, Sword and Book; The Structure of Human History, London, 1988, chapter 2.

28 E. GELLNER, Idem, p. 40; J. FAVRET-SAADA, Deadly Words: Witchcraft in the Bocage, Cambridge, 1980, p. 65.

29 D. MACK SMITH, Modern Sicily, p. 441.

30 Quoted in R.M. BERDAHL, Politics of the Prussian Nobility..., p. 137.

31 P. SAHLINS, Boundaries. The Making of France and Spain in the Pyrénées, Berkeley, 1989.

32 N. DYONET, L’écho du brigandage dans les cahiers de doléances du Loiret et du Cher, in J. NICOLAS (ed.), Mouvements populaires et conscience sociale, XVIe-XIXe siècles, Actes du colloque de Paris, Paris, 1985, p. 647-58.

33 J. DICKIE, A World at War: The Italian Army and Brigandage 1860-1870, History Workshop Journal, 1992, 33, p. 1-24; at p. 14.

34 A. BLOK, The Mafia of a Sicilian Village, 1860-1960: A Study of Violent Peasant Entrpreneurs, Prospect Heights, III, 1974, chapters 5 and 6; J. FENTRESS, Ch. WICKHAM, Social Memory, Oxford, 1992, chapter 2.

35 I borrow the term from Olwen H. HUFTON, The Poor of Eighteenth-Century France, 1750-1789, Oxford, 1974.

36 I. ROSONI, Criminalità e giustizia penale nello Stato Pontificio del secolo XIX°. Un caso di banditismo rurale, Milan, 1988.

37 G.A. WAGGONER, The Black Hand Mystery: Rural Unrest and Social Violence in Southern Spain, 1881-1883, in R.J. BEZUCHA (ed.), Modern European Social History, Lexington, Mass., 1972.

38 See inter alia, P. SAHLINS, Boundaries..., p. 138-141, and 222.

39 N. CASTAN, Justice et répression en Languedoc de l’époque des Lumières, Paris, 1980, chap. 1; E. CLAVERIE and P. LAMAISON. L’impossible mariage; violence et parenté en Gévaudan, XVIIe, XVIIIe et XIXe siècles, Paris, 1982, p. 176-178.

40 F. von HAXTHAUSEN-ABBENBURG, The Russian Empire: Its People, Institutions and Resources, 2 vols. London, 1968, i, 228-229; see also, S. C. RAMER, Traditional Healers and Peasant Culture in Russia, 1861-1917, in E. KINGSTON MANN and T. MIXTER (eds.), Peasant Economy, Culture and Politics of European Russia 1800-1921, Princeton, 1991, p. 223.

41 J.A. PITT-RIVERS, The People of the Sierra, London, 1954, p. 190; J.C. SEBBAN, La sorcellerie en Berry au XIXe siècle, Cahiers de l'institut d'histoire de la presse et de l'opinion, 1974, 2, p. 137-159.

42 W. de BLECOURT, Witch Doctors, Soothsayers and Priests. On Cunning Folk in European Historiography and Tradition, Social History, 1994, 19, p. 285-303, at p. 299.

43 O. ULBRICHT, The World of a Beggar around 1775: Johann Gottfried Kastner, Central European History, 1994, 27, p. 153-184: at p. 179-181; see also, D. HICKEY, Crop Stealing and the Village Community in the 17th. and 18th. Centuries, Proceedings of the Annual Meeting of the Western Society for French History, 1989, 16, p. 145-153; and, for mid-twentieth-century Hungarian examples, E. FEL, T. HOFER, Proper Peasants: Traditional Life in a Hungarian Village, Chicago, 1969, p. 363.

44 J. MOOSER, Property and Wood Theft: Agrarian Capitalism and Social Conflict in Rural Society, 1800-1850. A Westphalian Case Study, in G.R. MOELLER (ed.), Peasants and Lords in Modern Germany, London, 1987, p. 72.

45 M. BAUMEISTER, Arme "campesinos". Überleben und Widerstand in der Extremadura 1880 bis 1923, Berlin, 1994, p. 154-156.

46 S. WILSON, Feuding, Conflict and Banditry in Nineteenth-Century Corsica, Cambridge, 1988, especially p. 197-198.

47 A. BLOK, The Mafia of a Sicilian Village.., p. 110-111.

48 S. WILSON, Feuding, Conflict and Banditry..., p. 85-88.

49 K.H. WEGERT, Contention with Civility: The State and Social Control in the German Southwest, 1760-1850, Historical Journal, 1991, 34, 349-369: at p. 351.

50 R. SCHULTE, The Village in Court. Arson, Infanticide, and Poaching in Upper Bavaria, 1848-1910, Cambridge, 1994, p. 38-39.

51 J.F. SOULET, Les Pyrénées au XIXe siècle, 2 vols, Toulouse, 1987, i, 152; E. CLAVERIE and P. LAMAISON, L'impossible mariage..., p. 181-183; J.C. FARCY, Les archives judiciaires et l’histoire rurale: l’exemple de la Beauce au XIXe siècle, Revue historique, 1977, 254, p. 313-352: at p. 339-340; T.J.A. Le GOFF and D.M.G. SUTHERLAND, The Revolution and the Rural Community in Eighteenth-Century Brittany, Past and Present, 1974, 62, p. 96-119: at p. 102-105.

52 C. LISON-TOLOSAN, Belmonte de los Caballeros Anthropology and History in an Aragonese Community, Princeton, 1983, p. 107. Unfortunately the Town Council Minutes of Belmonte do not contain the judicial records; Ibidem p. 212.

53 J. Le GOFF and C. SCHMITT (eds.), Le Charivari, Paris, 1981; but see also the warning by E.P. Thompson that while 'there is... a family of ritual forms here, which is European-wide, and of great antiquity... the degree of kinship within this family is open to question.' E.P. THOMPSON, Rough Music, in E.P. THOMPSON, Customs in Common, London, 1991, p. 467.

54 S. P. FRANK, Popular Justice, Community and Culture among the Russian Peasantry, 1870-1900, Russian Review, 1987, 46, p. 239-265; C. FRIERSON, Crime and Punishment in the Russian Village: Rural Concepts of Criminality at the End of the Nineteenth Century, Slavic Review, 1987, 46, p. 55-69.

55 N. CASTAN, Justice et répression..., p. 15; E. FEL and T. HOFFER, Proper Peasants..., p. 362; and for other examples see J. DEVLIN, The Superstitious Mind. French Peasants and the Supernatural in the Nineteenth Century, Yale, 1987, p. 41 and E. WEBER, Peasants into Frenchmen..., p. 50.

56 R. SCHULTE, The Village in Court..., p. 35-37.

57 J DEVLIN, The Superstitious Mind..., p. 116.

58 Quoted in O. FESTY, Les délits ruraux et leur répression sous la Révolution et le Consulat, Paris, 1956, p. 44 note 1.

59 P. SAHLINS, Forest Rights. The War of the Demoiselles in Nineteenth-Century France, Cambridge (Mass.), 1994.

60 J.C. FARCY, Les archives judiciaires..., p. 340-343 and 346-347; R. SCHULTE, The Village in Court..., p. 50.

61 M. BAUMEISTER, Arme "campesinos"..., p. 178-180.

62 Vestnik politsii (Police Herald), 1908, 18, p. 18. My thanks to Dr. Mark Galeotti for this reference.

63 J.A. PITT-RIVERS, The People of the Sierra..., p. 169-175 and 190.

64 Quoted in F. PLOUX, L’"arrangement" dans les campagnes de Haut-Quercy (1815-1850), Histoire de la Justice, 1992, V, p. 95-115, at p. 95.

65 M.J. BROERS, War and Crime in Napoleonic Italy, 1800-1814: Regeneration, Imperialism and Resistance, Criminal Justice History (forthcoming).

66 Quoted in J.C. FESTY, Les délits ruraux..., p. 22.

67 P. SAHLINS, Forest Rights..., p. 106-109; ID., Boundaries..., p. 229.

68 A. SHUBERT, A Social History of Modern Spain, London, p. 92 and 97.

69 R. SCHULTE, The Village in Court..., p. 180-181.

70 A. de CLEMENTI, Vivere nel latifondo. Le comunità della campagna laziale fra '700 e '800, Milan, 1981, p. 214.

71 See, for example, C. RAMSAY, The Ideology of the Great Fear: The Soissonais in 1789, Baltimore, 1992, p. 173-176, and D. MOON, Russian Peasants and Tsarist Legislation on the Eve of Reform, London, 1992, especially chapter 5.

72 E. CLAVERIE, De la difficulté de faire un citoyen: les "acquittements scandaleux" du jury dans la France provinciale du début du XIXe siècle, Etudes rurales, 1984, 95-6, p. 143-166; Y. POURCHER, "Des assises de grâce?" Le jury de la cour d’assises de la Lozère au XIXe siècle, Etudes rurales, 1984, p. 167-180.

73 I. BRIDGEMAN, Policing Rural Ireland. A Study of the Origins, Development and Role of the Irish Constabulary and its Impact on Crime Prevention and Detection. Unpublished Ph. D., The Open University, 1993, ch. 5.

74 J.W. ATWELL Jr., The Russian Jury, Slavonic and East European Review, 1975, 53, p. 44-61: quotation at p. 44; see also, W.G. WAGNER, Tsarist Legal Policies at the End of the Nineteenth Century: A Study in Inconsistencies, Slavonic and Eastern European Review, 1976, 54, p. 371-394.

75 J. BLUM, The End of the Old Order in Rural Europe, Princeton, 1978, p. 353.

76 M. AGULHON, The Republic in the Village: The People of the Var from the French Revolution to the. Second Empire, Cambridge, 1982, p. 155-156.

77 M. BAUMEISTER, Arme "campesinos"..., p. 220-238.

78 P. McPHEE, The Politics of Rural Life: Political Mobilization in the French Countryside, 1846-1852, Oxford, 1992, ch. 5.

Auteur

Professor of history at the Open University (Milton Keynes, United Kingdom) and currently president of the International Association for the History of Crime and Criminal Justice (IAHCCJ). His books include Crime and Society in England, 1750-1900 (second edition, London, 1996) and The English Police: a Political and Social History (second edition, London, 1996). He is currently researching a comparative study of the development of Gendarmerie systems in nineteenth-century Europe.

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