The Pathos of Politics (113-6) Continental Europe

 Continental Europe

One of the chief differences between the common law in England and that evolving on the continent was the degree to which the Roman legal legacy had an impact. Unsurprisingly, Italy was the home of Europe’s first major center of legal study. One feature of the new learned law that did not derive from Roman practice was the use of punitive punishment.

Roman law gave considerable discretion to judges, who may establish their own system of punishments, including creating new ones. Those eliminated were the harshest retributions that seemed inapt. Imprisonment offered an appealing alternative. Whereas a prison sentence was reversible if new evidence appeared, mutilation or a capital penalty was not.

Medieval Italian law regarded requital as both a punishment for wickedness and a potential vehicle for reformation.

As Italian cities grew, so too the crime problem. During the 14th and 15th centuries, lawmakers fit punishments to crimes with rational precision. This spelt a general reduction in the physical severity of sentences. From the 12th to 15th century, what had been harsh bodily punishments were succeeded by fines. In the 14th–15th centuries, fines were often combined with imprisonment.

Germany in the late Middle Ages was the most fragmented of the European kingdoms. Local power went unchecked, as royal authority and its jurisprudence were limited. Hence, Germany relied upon local custom, which dictated both procedure and punishment. Canon law applied in German lands, but it was confined to ecclesiastical courts.

In capital cases, mutilation was often a prelude. Nobles were beheaded, while lesser men were broken on the wheel, burned, or hanged.

Prisons served as a mitigation of the death penalty, or an alternative to a fine when the offender was insolvent. Except for mitigated death sentences, prison terms were typically short. But by the 15th century, especially among cities, terms of imprisonment varied considerably.

Well into the early modern period, German prisons were comparatively ad hoc. They might be rooms and holes in the foundations of local forts, in the cellars of town halls, or in subterranean chambers known as Locher. Prisons were local facilities regulated by local authorities.

Learned Roman law did not seep into German courts until the end of the 15th century, and it was not until 1532 that a full-fledged criminal code appeared, by way of Emperor Charles V.

Like Germany, the Scandinavian countries favored punishments that entailed property loss, mutilation, or death. Iceland occasionally imposed penal servitude.

Although imprisonment was employed in canon law courts in northern Europe and Iceland, it was not used in Scandinavia until the 16th century, when labor camps were gradually introduced. This applied as well to the Low Countries.

France comprised territorial principalities until the late 12th century, when Philip II began centralization. Nonetheless, jurisprudence remained largely regional until Napoléon.

Custodial imprisonment was long common in France. From the 13th century, prison as punishment became more common. Blasphemy was an offense for which one would serve time.

Royal prisons were better regulated than the provincial variety. They were supposed to have reasonable quarters, with residence not intended as a punishment in of itself. At least bread and water were provided, though in some cases prisoners could pay for better food, or have it delivered by relatives or friends.

In royal prisons, prisoners were deprived of their clothes, and made to wear a simple garment that was readily identifiable, so as to help mark escapees and those permitted on brief outside visits.

The sexes were routinely separated in royal prisons, with guards of the same gender if possible. One of Joan of Arc’s complaints was that she had not been accorded female jailers.