This week we’re delving into penal violence in early modern Europe. For most people, we suspect, their familiarity with torture, corporal punishment, and execution for capital crime is confined to some gnarly anecdotes, perhaps a few graphic movie scenes, a little Monty Python, and, if you’re cool like us, your high school history project about medieval torture devices. But everything has a history and those things barely scratch the surface. Legal historians have been uncovering, measuring, and analyzing capital punishment for decades and today we want to share some of what they’ve found.
Marissa: One pleasant May day in 1704, Agnes Catherina Schickin was walking through a village in Tubingen, Germany where she stopped and asked a villager for a glass of milk. After finishing her milk, she thanked the good Samaritan and continued her stroll. She approached a group of young boys and asked one of them to accompany her up the road to give her directions back home. A seven year old boy named Hans Michael Furch agreed to show her the way after she promised him a gift. The other boys, at first, insisted on coming too but she convinced them to stay behind.
Agnes and the boy walked along a path in the nearby forest, which was bustling with hunters, travelers, and woodsmen. As they walked, they chatted, rested, and played games. One witness saw her affectionately delousing his hair, an intimate act often performed between mother and son. Eventually, the boy asked to go home. It was then that Schickin angrily threw him to the ground and, ignoring his pleas for forgiveness, sliced open his throat with a knife she’d been carrying in her pocket. His throat was sliced so deeply that she later testified that she could “look down into his neck.” Leaving him bleeding to death in the forest, Agnes walked to the next town and presented herself to the next people she saw.
Averill: She went compliantly with the town’s imperial Vogt (kind of like a constable in early modern Germany) who took her to jail. She told onlookers confidently that “now the hangman would surely dispatch [her].” Agnes cooperated, making judicial torture unnecessary. During the Vogt’s investigation, he discovered that six years ago, she had slept with a soldier in the forest. Because she declined to be in a relationship with him afterward, he cursed her. Agnes told the Vogt that she “no longer felt right.” She suspected the devil had possessed her. Her neighbors testified to her sudden sexual promiscuity and other strange behaviors since the curse.
Agnes had attempted suicide several times and spent time being treated by a barber-surgeon after one of those attempts. During her period of distress, she also worked as a beggar in the countryside. After discovering that Agnes’s father had taken his own life in the forest long ago the jurists in charge of Agnes’s trial concluded that she suffered from melancholy which she had inherited from her father. Instead of execution, Agnes was sentenced to whipping and confinement in a poorhouse where she would receive medical care and religious counsel.
Marissa: For most people, I suspect, their familiarity with torture, corporal punishment, and execution for capital crime is confined to some gnarly anecdotes, perhaps a few graphic movie scenes, a little Monty Python, and, if you’re cool like me, your high school history project about medieval torture devices. But everything has a history and those things barely scratch the surface. Legal historians have been uncovering, measuring, and analyzing capital punishment for decades and today I want to share some of what they’ve found.
And I’m Averill.
Marissa: And we are your historians for this episode of Dig.
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Marissa: The murder of Hans Michael Furch by Agnes Catherina Schickin was researched and and translated by historian Kathy Stuart. In many ways, this is a surprising story. Non-historians tend to believe that our world is more violent now than it has ever been. As the story goes, it was the 1970s that brought the birth of the “serial killer,” and that 1990s, the video games and movies that desensitize us to appalling violence. But we historians know different, especially early modernists like me. Early modern Europe was an incredibly violent place, and not just during war time. Rapists, child-killers, violent sociopaths, they’ve been around forever.
Averill: Even more surprising, early modern states were not nearly as “medieval” as folks might think, a point illustrated well by Agnes’s story. The state took into consideration Agnes’s state of mind and empathized with her fragile mental state. In an age of witch hunts, even, they resisted the temptation to indict her for witchcraft. Still, this is not how this would have gone down two hundred years earlier and whipping and incarceration in the poorhouse was no walk in the park. Moreover, they did not give her what she wanted, which was death, or indirect suicide. More on that phenomenon later but suffice it to say that the existence of judicial torture, corporal discipline, and capital punishment made early modern Europe a very different place than it is today.
Marissa: We wanted to offer a quick note on definitions. Capital punishment is when a person is put to death by the state– so essentially its another word for the death penalty. Corporal punishment, on the other hand, refers to physical punishment perpetrated on a person by the state. We also have to establish that the complexity of legal jurisdiction in early modern Europe is impossible to overstate. It was a veritable web of overlapping courts and overlapping bodies of law.
The only general principle we can say for sure is that all European states had ecclesiastical courts, seigneurial courts, and state courts. In the early modern period, state courts increasingly encroached on the jurisdiction of the other two. Seigneurial and manorial courts were artifacts of feudal organization. Their jurisdictions (or seigneuries) were determined by the land holdings and privileges of the nobility who presided over them. The complaints handled by seigneurial courts typically look like landlord-tenent disputes. Church courts were internal systems subject to canon law which were designed to minister to clergy and parishioners. Urban courts were also very common. These usually evolved out of city councils in highly populated areas. There were many other miscellaneous courts, such as those attached to town leadership, guilds, or military officer corps.
Averill: State courts took on many different forms, catered to many different constituents, and enforced several different types of law (common law, criminal law, civil law, statutory law, parliamentary statutes, and the list goes on). European states typically had sovereign or superior courts that evolved out of dispute resolution structures within the monarch’s court. Most areas of Europe also operated local royal courts whose jurisdictions could range in scope anywhere from village to city to county to bailiwick (100 parishes).
Marissa: Making things even more complicated, there were several different systems of law, some of them practiced in particular courts, others applicable only to certain people, and others relevant only to certain districts or particular kinds of crimes. Medieval European law was a mixture of Germanic and Celtic customary law, as well as Byzantine and Roman codified law. Throughout the middle ages, different areas of Europe developed both customary and codified bodies of law. Throughout most of continental Europe, codified law reigned supreme. In England, William the Conqueror’s 1066 CE invasion brought the Normal legal tradition to England. This combined with native legal traditions to make English Common Law, a customary body of law revolving around case law and precedent.
Averill: Ecclesiastical courts followed Canon Law, established by the various tribunals and synods of the Roman Catholic Church or the Eastern Orthodox Church (depending on where in Europe you’re referring to). In the British Isles, the church court situation was more complicated. When England separated from the Catholic Church, the newly minted Church of England operated its own ecclesiastical courts under the authority of the Crown. In the 19th century, the Church of England ecclesiastical courts were absorbed by English Probate courts. Once again… this was all incredibly complicated and we won’t elaborate any more on this but keep in mind that we’re trying to summarize trends in a very convoluted legal landscape.
Most of the time, capital punishment was meted out in sovereign or superior courts as well as in urban courts. It might be surprising to you, as it was to me when I first learned this, that the medieval period was NOT capital punishment’s heyday. In fact, it’s quite the opposite. Capital punishment was a distinct feature of Roman law codes, while European law was a mixture of customary traditions and ecclesiastial canon. It was not until the 13th century that European states began to revamp their legal codes in the image of Roman law.
Marissa: Roman law is partly responsible for the gruesome forms of corporal punishment that characterized early modern European penal systems. However, after Roman-style law was adopted in Europe, it took a couple hundred years for levels of capital punishment to rise meaningfully. Some historians, such as Daniel Lord Smail, have argued that thirteenth- and fourteenth-century courts were more likely to punish criminals through predation rather than capital punishment, even when they had committed violent crimes. Predation is essentially the seizure and liquidation of the accused person’s estate.
This was common in the high middle ages because during those years, absenteeism was a serious problem. Few European municipalities had jails so indicted criminals were just notified of their court dates and expected to show up for their trial and sentencing. Unsurprisingly, most people charged with serious crimes absconded. In response, the state seized their estates, especially in Mediterranean Europe. This was more than just a money-grab. It was the ultimate humiliation and resulted in the social death of the accused.
Averill: Germanic regions had always punished violent crime by financial means. The wergeld is the ultimate example. The wergeld was a price put on the life of a murdered person based on their social status. When a person was murdered, their murderer, or their family, was required to pay this price to the slain’s family or their lord. This process was meant to settle the murderer’s debt to society and to prevent blood feuds.
One pre-Roman category of penal violence worth mentioning here is trial by ordeal. I just wanted to point out how incredibly rare and ancient this practice was because it is often conflated with the penal actions of witch hunts in the 16th and 17th centuries. Trial by ordeal required the accused to partake in some kind of dangerous activity such as combat, exposure to fire or boiling water, or taking poison in order to prove their innocence. In the very early middle ages, this practice might be found among Germanic and Celtic populations in Europe.
Marissa: The Roman Catholic Church banned trials by ordeal progressively during the middle ages. The increasing centrality of Roman law to European penal systems marked the death knell of trial by ordeal. Even in jurisdictions subject to Roman-style legal codes early on, conviction rates for capital crimes were incredibly low throughout the 1200s and 1300s. So these horrific punishments were on the books but few people were actually enduring them.
After 1400, the penal systems of Europe changed dramatically. It became more common for European municipalities to have holding facilities as well as constables, vogts, bailiffs and sheriffs to execute arrest warrants. Indicted or even suspected criminals were typically held in custody. With this, criminals’ ability to abscond became very limited. Still, this was not a modern penal system. Despite high levels of violent crime, most European villages and towns had no penitentiaries and no police force whatsoever. This is important for a couple reasons: (1) It means that early modern communities shared, informally, the duties of policing, and (2) it means that punishments needed to be severe in order to deter others from committing similar crimes AND to prevent the likelihood of recidivism (a return to criminal activity after punishment).
Averill: We can get a little peek into how corporal punishment was used as a mode of policing when we look into the history of judicial torture. By judicial torture we mean the application of physical, mental, and emotional pain by an agent of the state. Sometimes, namely in the context of the Inquisition or other operations aimed at rooting out heresy, judicial torture was applied for the purposes of compelling confession. This is often called the “Inquisitorial style” of penal torture and its rooted in Roman law. This is the kind of judicial torture that was taking place during most early modern heresy and witchcraft trials.
Despite the visibility of inquisitorial torture at this time, this is not what most judicial torture looked like. In most jurisdictions, in most times and places, judicial torture was highly regulated, ordered by a judge, and applied strategically to force the implication of accomplices. In a society without a police force, judicial torture was an important tool used to investigate standalone crimes and criminal enterprises.
Marissa: The Carolina Code of 1532 laid out a pattern of torture that was carefully cultivated to increase the probability of accurate information extraction. The code established a prescribed and systematic approach to torture to be carried out by executioners, hangmen, and skinners. The first step was merely showing the instruments of torture to the accused. If the accused failed to confess, thumbscrews were applied but not operated. Thumbscrews are essentially a vice with studs on them that were tightened to crush thumbs and toes. If the accused refused to confess, only then were the thumbscrews tightened.
The process escalated from there, to leg splints, whipping, and the strappado (hanging someone by their arms from behind and strapping a weight to their feet to pull their shoulders and elbows out of their sockets). At each phase, the torturer was, by law, required to allow the accused time to implicate their accomplices before escalation. This method was not so much about punishing the accused as it was about investigating past crimes and criminal enterprises in order to prevent future crime. In a society without policing, corporal punishment, in the form of torture, shaming, banishment, or execution, was the state’s most powerful tool.
Averill: Not all states followed the Carolina Code, however. Some jurisdictions applied torture more strenuous and for longer period of time than human bodies could handle. One punishment common in England was pressing. The accused would be splayed on the ground in the shape of the cross with a board placed on top of them. Weights would be added to the board to slowly crush the accused to death. This method was sometimes used to stimulate confessions but inadvertently resulted in death. One Nottingham man was pressed to death by accident because his torturers were unaware that he was a mute.
In the 14th century, an Englishwoman named Cecila Rygeway was reportedly pressed and starved for 40 days in hopes that she would confess to the murder of her husband. The King was so impressed with her endurance, assuming it proved her innocence, that he pardoned her. By the 1600s, pressing was still used on occasion but typically for people accused of high crimes (like the 44 people pressed to death under James I of England), or of egregious crimes such as family annihilation (which was the case with Walter Calverley of York who was pressed to death after he killed his wife and sons).
Marissa: In this sweet spot, when absconding became difficult, penitentiaries were rare, and policing was needed but hard to come by, this is when we see a drastic uptick in instances of capital punishment. This uptick lasted for several decades. In the town of Chester, England for example, nine offenders were executed per year in the 1580s, and by 1620, the annual average reached seventeen. It was during this spike that authorities meted out their most gruesome punishments; burning alive, drowning, live burial, beheading with the axe, breaking on the wheel, and drawing and quartering (which was essentially live disarticulation and evisceration).
Averill: The punishments that were preferred or abhorred varied over time and space; as it turns out, even the fear of torture and execution were culturally constructed. For example, in England, high-born convicts preferred beheading to hanging. They were customarily beheaded using an ax and block . A good example might be Mary, Queen of Scots, who was beheaded in February 1586. In France and Germany, however, where elites also preferred beheading as an exceptionally honorable way to die, the act was done with a sword. In Muscovy (early modern Russia), on the other hand, hanging was most common but was applied mostly to men. Russian women, on the other hand, were typically beheaded or buried alive. In many jurisdictions, we see gendered preferences, the most common one being that hanging was inappropriate for women. In France, officials took to strapping women’s skirts around their legs so as to preserve their modesty as they swung on the gallows. On the other hand, it was considered to be unproblematic when women were whipped or pilloried nude.
Marissa: In most cases, preferred methods of executions in the 1600s were chosen based on their compatibility with Christian burial. Not only was burning at the stake a painful death, it also destroyed the remains so completely that Christian burial was impossible. The same can be said for drawing and quartering, which resulted in the denigration and destruction of the body in front of a large crowd. Most convicts were granted the mercy of a Christian burial after their execution and, except for extreme cases, suicides were the only “criminals” for whom Christian burial was customarily denied.
Averill: After 1630, execution rates fell dramatically all over Europe and remained low for the rest of the 1600s. By the 1680s, the rates of execution in Chester were 15% of what they had been in the 1580s. Europe, however, did not become less violent. In fact, even though capital punishment was quantitatively more rare, we see a spike in indictments for certain kinds of crime during this lull. We see a peak in indictments for “high crimes” like treason, heresy, witchcraft, infanticide, sodomy, and petty treason. Petty treason is an aggravated form of murder that inverts social hierarchies: apprentices who kill their master, wives who kill their husbands, or sons who killed their fathers.
Marissa: Therefore, even though 1630-1680 marked a lull in the volume of executions, this time also marks some of the most incredible, highly publicized forms of mass hysteria that ended in capital punishment. This includes but it not limited to witch hunts, especially common in Germany and Switzerland; regicides, like that of Charles I who was executed for “high crimes and misdemeanors” in 1649; infanticide panics, like the one in England that resulted in a 350% increase in neonaticide indictments by 1650; or the sodomy and beastiality panics that gripped Britain and colonial New England in the 1640s and 1650s.
Averill: For example, the Earl of Castlehaven, the subject of an excellent legal historian named Cynthia Herrup, was executed for rape and sodomy in 1631. Herrup has found that his sexual proclivities were much less shocking to the jury than his inability to order and administer his household. In New England, on the other hand, Puritan colonists responded to a perceived decline in moral rectitude by prosecuting swells of men, and a host of animals, for sodomy and beastiality. In some ways, it’s hard to believe that this time qualifies as a lull at all. It appears that even though capital punishment was less common during this time, it was just as culturally important as it had ever been.
Marissa: Have no fear though, capital punishment enjoyed another resurgence. Execution rates rose drastically again after 1700. In Amsterdam, for example, nearly twice the number of criminals (281 people) were executed between 1701-1750 than had been executed between 1651-1700 (151 people). But these executions were qualitatively different from those of the previous climax. The more theatrical forms of execution became less common, giving way to droves of hangings and beheadings by sword (remember, a punishment reserved for elites in earlier centuries).
In the rare case when less humane executions were carried out, mercy was generally shown to criminals at the moment of death. In the later 1600s, it became common practice for the accused to be killed discreetly BEFORE rather than during the most gruesome of deaths. For example, in Germany criminals were often executed on “the wheel.” This was essentially a platform that secured the accused as an executioner crushed their bodies with blunt weapons. One could either be crushed from below (which took longer and hurt more), or from above (which resulted in a quicker death).
Averill: During the first spike in executions, criminals were more likely to be crushed from the bottom up. During the peak in the 1700s, criminals were almost always crushed from the top down, resulting in a speedier death. Sometimes, the accused was even discreetly killed BEFORE their body was strapped to the wheel. Another particularly gruesome and painful punishment, burning alive, was made slightly more merciful after 1700 as executioners were likely to strangle or cut the throats of the accused before the flames reached their toes.
If you are thinking this is evidence that the 1700s had grown more humane, however, you would be wrong. In some ways, the increase in capital punishment is MORE alarming in the 1700s than it was earlier. This is because violent crime, still more common than today, was nonetheless on the decline since 1400. This means that, even though fewer homicides and other violent felonies being committed, MORE people were facing execution anyway.
Marissa: During this particular climax in capital punishments, many states changed which crimes were punishable by death. More crimes, especially non-violent crimes, were re-categorized as capital offenses. This trend was experienced by most of Europe, but most notably in England. The Waltham Black Act of 1723 made a whole host of non-violent crimes punishable by death, including forgery, burglary, shoplifting, theft, and unauthorized return from penal transportation, among several others.
In large European cities, imprisonment or transportation to the colonies was becoming a more common option. But even so, several forms of imprisonment might also qualify as corporal punishment. Convicts could be sentenced to hard labor, penal servitude, or a whole host of abusive institutions of retention. The inventive corporal punishments of yore were jettisoned in favor of whipping, branding, and the pillory. In fact, whipping became so common after 1700 that it became mundane to most folks in European cities.
Averill: There was hardly a day that went by that was not punctuated with the sharp sounds of a penal whipping, or “flogging” as it was known. Flogging was both painful and humiliating. One particularly cruel Judge, George Jeffreys, or “the hanging judge,” instructed his hangman to flog a woman thusly: “Scourge her soundly, man, scourge her till her blood runs down! It is Christmas, a cold time for madam to strip. See that you warm her shoulders thoroughly.” Most towns had a customary path that was traveled by the accused as the executioner, skinner, or hangman whipped them according to their sentences.
This procession itself has an interesting history. The location of penal violence took on a new meaning during the 1600s. During the 1400s and 1500s, most towns hosted public executions within the town walls, often near the market or some other populated plaza. The execution structures (usually a gallows) were rarely permanent. In some jurisdictions, they were built new for each execution. In Muscovy, executions were often staged at the scene of the crime. But by 1600, in the midst of high volumes of executions, most towns had built permanent execution structures outside of the town walls. In Middlesex, England, Tyburn was established. Ravenstones, the customary execution structures in German-speaking lands, had mostly been relocated to the city limits. The new permanence of execution structures on the outskirts of town did a few important things.
Marissa: First, it reinforced the stigmatization of the execution place. This stigma was nothing new but the marginalization of the gallows endowed the execution grounds with a permanent stain of dishonor. Criminals accused of aggravated forms of crime, or people who committed suicide, were buried under the gallows as an additional post-mortem punishment. Secondly, this new permanence allowed for the elaboration and ritualization of the customary procession from the jail to the gallows. Some towns had established routes from which they never varied. Others sought to incorporate the scene of the crime into the procession ritual. If the accused was sentences to corporal punishment before their execution, such as nipping with hot tongs, amputation, whipping, or branding, this was sometimes done in from of the house of their victim, or at the scene of the crime.
Averill: Now, back to that second climax in capital punishment after 1700. Hanging became the primary form of capital punishment in the 1700s, especially in England. The rudimentary gallows of the previous century were replaced with gallows that featured “the drop” which allowed the accused to be hanged by way of a dropping trap door rather than requiring them to jump off a stool or ladder. The appalling death penalties of the 1500s were still in use but only under specific circumstances. Criminals convicted of high crimes (crimes perpetrated BY or AGAINST someone who is in a unique position of authority) or aggravated forms of felony were subject to these more brutal forms of execution: burning at the stake for women, drawing and quartering for men.
Marissa: Disturbingly, though, this second spike in capital punishment was accompanied by increases in post-mortem harm, which might take the form of a public dissection or even the display of decapitated heads on a spike. After 1700, executed criminals all across Europe were infinitely more likely to be denied a dignified burial. Paul Friedland calls this post-mortem punishment “permanent exile.” This could be done by way of gibbeting or hanging in chains, which was the display of the rotting corpse in a public place for years.The remains of executed criminals were increasingly desecrated or discarded to add an extra level of horror to their sentence.
Gibbets were human-sized cages meant to house rotting corpses after execution. All over Europe, gibbets were hung in whichever areas allowed them to be visible to most people. In the Netherlands, they swung along the waterways, visible to both land and ship traffic. Gibbets were enduring symbols of the inescapability of punishment and they were found all over London in the 1770s. Robert Hazlitt was executed in 1770 for highway robbery. He had robbed the Newcastle Mail service on Gateshead Common so the Postmaster-General requested that his gibbet be displayed there.
Averill: Six years later, an American named Jabez Maud Fisher encountered Hazlitt’s semi-mummified remains, still swinging in Gateshead Common: “His Flesh seemed perfect and he could not have been long executed. One would suppose from the Number of these distressing objects which throw themselves in our way in almost every Common in England, that it would have some effect in ridding the Kingdom of those frequent Robberies which are committed in every part of the Country. However this and every other terrible Example have failed.”
Marissa: As the need for anatomical specimens increased across Europe, it became more common for the remains of the accused to be subject to public dissection and display in medical schools and anatomy museums. But this dire need for specimens was sometimes sacrificed for other priorities. The Murder Act of 1752, an Act passed by the British parliament, established gibbeting as an alternative to public dissection. Officials hoped that gruesome displays of post-mortem harm might curb what they perceived to be a crisis in forgery, smuggling, and other non-violent crimes.
It may be tempting to conclude that the merciful killings of the eighteenth century were preferable to the tortuous punishments endured by 16th and 17th century criminals. It may also be tempting to conclude that it would be preferable to be a criminal during low rates of execution rather than a criminal during high rates. But in both cases, we would be mistaken.
Averill: To our contemporary sensibilities, it is easy to draw a distinction between judicial execution, which resulted in death, and the range of state-sanctioned corporal punishment stopping short of death. After all, one form allowed a convict to escape with their lives intact, and the other did not. But that’s not how early modern Europeans thought about the process. Capital punishment, and the corporal punishments that stopped short of death, were highly ritualized processes. And death was NOT the worst case scenario. According to historian Paul Friedland, the ritual of capital punishment in early modern Europe contained three phases irrespective of its outcome for the convict: (1) public display and shaming, (2) expulsion and liminality, and (3) death, which could mean either social death or biological death.
The first stage, public display and shaming, was meant to humiliate the accused and give some sense of satisfaction to the victims of the crime. This stage could take many forms but it typically involved a public reading of the convict’s crimes, and some type of public punishment or orchestrated display. Most often, criminals were publicly whipped, branded, or beaten as the community watched. In Scotland, “poorly behaved” women convicted of disturbing the peace or public nuisance were often silenced with a scold’s bridle or brank. This was a leather muzzle strapped around the accused’s head to shame and humiliate her during her trial and punishment.
Marissa: It was common for this step to be repeated several times. In one 1735 punishment meted out in Paris, Pierre Bernard was strapped to a cart which was used to pick up the city’s muck while his sentence was read aloud. He was beaten and whipped by the executioner in sight of the townspeople. He was then transported to several different places in the city. At each stop, his sentence was read aloud, and the executioner beat and whipped him. After four rounds of this, Bernard was transported to the doors of a temple where the last round of sentencing and beating took place. He was branded with the letters GAL and attached to a chain of galley slaves headed for Mediterranean ports.
Bernard’s punishment moved through Paris like a traveling carnival, spreading the news of his shame. This stage of the ritual often looked like this. Adulterers were forced to march naked through the streets. Some criminals were sentenced to ride an ass backwards all over town. But sometimes, this scene played out in reverse. The convict was trapped in one place for a prescribed number of hours, wearing a humiliating paper bonnet or an embarrassing sign. Some of the placards recorded for posterity include “Aggravated Disturber of the Public Peace,” “Would-be Psychic and Sorcerer,” and “Debauched Libertine Who Plays with Little Girls.” By 1500, many towns had specially built pillory towers for the sole purpose of displaying and shaming criminals for their crimes. Convicts’ sentences were read aloud as they were chained to the pillory. In some cases, the sentence was performed repetitively for days.
Averill: Stage 1 (shaming) had much older roots in the late medieval ceremony of penitence that required the accused to suffer public whipping or to perform self-flagellation in a public ceremony. This was a particularly compelling ritual for Catholics who tended to understand pain as a purifying force. Devout Catholics sometimes used this purifying force on themselves, performing mortification like self-flagellation on their own flesh. The most common form of self-mortification was the hair shirt, a garment made of rough, abrasive fabric meant to induce constant discomfort.
Historians sometimes point to the purifying nature of pain to explain the spate of executions perpetrated on Protestants by the Catholic Mary I of England. This understanding of pain did, however, influence Protestant thought as well, which partially explains why Protestants elevated executed Protestants to the level of martyrs immediately after their deaths. These ordinary Protestants had achieved a level of holy purity by way of suffering the pain of execution.
Marissa: In Catholic areas of Europe, the ritual of public penance evolved into elaborate secular ceremonies. In France, criminals were often sentenced to perform the amende honorable. This ritual punishment required the accused to walk barefoot, nude or partially nude, with a rope around their neck, carrying a wax candle and a weight in their hands. In this condition, they were brought to either a very public place such as the entryway to a popular church, the market, or even the scene of their crime. They were then forced to fall to their knees in front of the crowd in order to confess the details of their crimes, and publicly beg forgiveness from God, the King, and the crime’s victims. Historians suspect that amende honorable may have evolved from the the Salic practice of chrenecruda. In cases where a murderer was unable to pay the wergeld, they were required to debase themselves and to uproot themselves from the community, either literally or symbolically.
Averill: Irrespective of the accused’s ultimate fate, they were always compelled to undergo this initial display and shaming before they moved onto the next stage of the ritual. Stage two was expulsion and the imposition of liminal status and it could be imposed on the accused either before and/or after death. Liminality is an anthropological term that, in historian Esther Cohen’s words, “was a means of demarcating the boundaries between the normative community and those who had offended against it.” This stage typically involved banishment or exile of some kind, either temporary or permanent. Stage two of Pierre Bernard’s punishment, for example, was banishment to the galleys, a permanent expulsion and enslavement.
Temporary banishment sometimes ended with the practice of corporal compensation. In other words, a banished criminal might sometimes earn acceptance back into the community by paying a price. That price was typically mutilation of some sort. Most often, mutilation or branding served the purpose of marking criminals who were permanently banished, at least before 1600. Permanent banishment offered none of the solace that death offered to faithful Christians. You were forever condemned to live apart from your community, stigmatized in this life and the next. This was a fate worse than biological death for most early modern people.
Marissa: After 1600, the state began to use targeted mutilations for specific crimes such as sodomy, blasphemy, and theft. Sodomites had their genitals removed, blasphemers their tongue or lips, and thieves, their hand or foot. Thieves were, for most of the early modern period in France, branded with a fleur de lis. After 1724, however, the fleur de lis was replaced with a V. Men who committed a second offense were branded with GAL and sent to a lifetime in the galleys. Women, because they were not eligible for the galleys, were branded with another V and banished to the workhouse. These mutilations permanently marked egregious offenders with the stigma of their crimes.
Averill: Mutilations were also meant to prevent criminals from reoffending. One can hardly commit sodomy without genitals, or blasphemy without a tongue to speak. Mutilations became less frequent in Europe after 1600 but when they were performed, it was typically to mark the crime as a particularly egregious crime, and not the offender as having liminal status. For example, crimes that subverted “natural” hierarchies, like parricide (child killing a father), mariticide (a wife killing her husband), or regicide and attempted regicide, carried an aggravated punishment. In France, these convicts had their hands severed off before their death sentence. In England, women convicts found guilty of these crimes were sentenced to the least humane form of execution, burning alive.
Marissa: In England, after the Waltham Black Act (1724), mutilations were commonly used for property crimes. For example, Sir Peter Stringer was found guilty of forging deeds in 1731. He was sentenced to a time in the Charing Cross pillory. While he was immobilized, “the hangman John Cooper… came up behind him and, with a knife like a gardener’s pruning knife, cut off his ears and held them up so that the mob could see them. Having handed them to Mr. Watson, the Sheriff’s Officer, the hangman slit both nostrils with a pair of scissors…” These sites earned England’s 18th-century penal system the nickname “bloody codes.”
Averill: This brings us to stage 3 of the penal ritual, and that is death. For some, this death was a social death that did not include execution but marred their life on Earth and extended their death sentence into the next life. For many, death meant immediate execution and merciful post-mortem reintegration into the society that had expelled them. For the especially unlucky, stage 3 consisted of both immediate execution, AND permanent exile. Not all convicted criminals made it this far in the ritual. First-time offenders especially were sometimes thrust into the ritual at the beginning and pulled out somewhere along the way to their final destination.
This was actually more common than you might think. In fact, the possibility of a last-minute pardon or commutation of sentencing could be part of the torture. In Muscovy, women convicted of aggravated crimes such as witchcraft or infanticide were buried alive. They were interred standing upright, only their heads exposed. Guards were deployed to guard the accused for days, sometimes weeks, preventing anyone from helping her as she died from dehydration, starvation, or exposure. These women were occasionally pardoned during their ordeal, and allowed to join a convent. This was not typical but it was common enough, however, to make the burial all that more tortuous.
Marissa: Interestingly, death was typically considered temporary rather than permanent expulsion. In 1396, France’s Charles VI issued a decree mandating Catholic confession prior to judicial execution. For the next few hundred years, then, criminals executed in France were buried in consecrated ground and accepted back into the community of the faithful after death. Though statutes varied by jurisdiction, it was common in Christian Europe for criminals to enjoy the benefit of confession, consolation, and company with clergy.
In Catholic Europe, laymen established confraternities designed to officiate at public executions. One of these brotherhoods in France and Belgium called pénitents noirs articulated their duties in their founding articles (translation by historian Paul Friedland):
Art. 6. In so much as one of the principle aims in establishing the pious company of charity is the assistance and consolation of the miserable patients condemned to the ultimate punishment, it is in these sad moments that the light of zeal and charity of the confraternal members must shine forth. As soon as the Rector is warned of an execution, he will assemble all the members of the confraternity in the church of St. Aurelien where the regalia will be brought for the convenience of said confraternal members, after which they will leave the said church, marching two by two in a procession in order to make their way to the prison, and once arriving there they will march in a procession before the patient, accompanied by two ecclesiastical brothers who will exhort [the patient] to die well; these [brothers] will be covered in a black cloth. On the way, they will sing the prayers for the dying, until the execution has been done, after which will be sung the Psalm De profundis, during which time the members of the confraternity will untie the body [of the patient] and will put it in a shroud in sight of everyone and said body will be carried in a coffin by four of the brothers … and the body will be carried to the church of St. Cessadre or St. Aurelien … in order to be buried in the designated place on the following day, the brothers singing, along the way, the Miserere, the De profundis, and other psalms destined for the souls of purgatory.
Averill: Judicial executions often resemble miniature Passion plays, ending in the criminal’s as well as the community’s salvations. Historian Michel Bée calls them “spectacles of sacrifice.” In Paris, it was customary for the executioner’s procession to stop at the convent of Filles-Dieu where the accused would receive a last meal of bread and wine, as well as a crucifix to kiss and wear around their necks.
They had a vested interest in the criminal’s salvation. Michel Bée explains it this way: “The criminal, who has violated the prohibition of murder, has by his act entered into the world of the sacred; he has endowed himself with an energy that renders his presence harmful and contagious; he introduces disorder into society and in the relations between society and the divine; the only reconciliation possible between the murderer and the society rests therefore in the sacrifice which frees him from his stain….” In other words, the penal ritual was just as beneficial to the soul of the community as it was to the soul of the accused.
Marissa: The audience took this very seriously. They sometimes attacked heartless officials, incompetent executioners, or uncooperative convicts who “broke the spell” and ruined the cathartic release they sought. The public was so invested in capital punishment that many historians have argued that, rather than some ritualistic catharsis, public executions were the ultimate entertainment. This model of interpreting capital punishment works particularly well for the English context.
The Middlesex sight of Tyburn, just outside of London, drew thousands of spectators to its public hangings. The accused were made to sit in a cart that was pulled from Newgate Prison, where their sentence had been pronounced, three miles to the outskirts of London to the gallows. Beloved criminals were celebrated, a phenomenon that inspired resentment among public officials and enraged the judiciary. Just as often, the public displayed their disgust with the accused or their approval of the death sentence by teasing the convict and throwing rotten food and excrement at them.
Averill: Irrespective of the standing of the accused in the community, the public hung on every word as they delivered their last speech. Most speeches were subsequently augmented into morality tales that were published and circulated across the country. The gallows at Tyburn were remarkable, consisting of a three-cornered set of cross-beams that could hang 24 people at one time. It was called the Triple Tree and it was typically used every three weeks.
Aristocrats and the respectable classes rented window seats near the events while commoners flooded the muddy field in front of the gallows. Especially infamous executions turned into full-blown festivals. There might be anywhere from 5,000 to 40,000 spectators. The gin was flowing, the pasties were steaming, and the crowd was waiting for a show. The condemned occasionally performed for the crowd, telling jokes, dancing, and delivering monologues to the teeming masses.
Marissa: The communal interpretations of capital punishment (as either a performance of salvation or form of entertainment) are reinforced by the fact that officials went forward with punishment even when there was no body on which to enact the judicial violence. Remember, in the medieval period, when criminals absconded (which they did in the vast majority of cases), authorities seized their belongings, erasing their local identity and finalizing their banishment….Not so in the early modern world.
Averill: When convicts absconded, authorities went ahead, executing the prescribed punishment on a proxy, or effigy. The common conception of an effigy (at least to us Americans) is some three-dimensional scare-crow-looking approximation of a human. This is probably because Revolutionary-era effigies in the American colonies appeared this way. But this was NOT the norm.
Effigies were almost always 2-dimensional paintings or drawings of the accused. In Paris, effigies typically took the form of a quick drawing of the accused actually being executed. In Geneva, effigies were usually paintings of the accused which were subjected to the procession from the prison to the gallows, with no variation from how the execution might have looked if the criminal had been present. The paintings were even whipped or mutilated if that had been part of the sentence.
Marissa: When taken to its rational limit, the whole ordeal must have been ridiculous to behold. In 1539, one French barrister named Jean Frolo was convicted of murder and sentenced to have his hand cut off in front of the house of his victim, and to be executed by hanging. Frolo was somehow absent for his execution so authorities paid a considerable sum for local craftsmen to construct an elaborate mannequin who underwent the punishment in his stead. In Europe, three-dimensional effigies were replaced by paintings or drawings after 1600.
Averill: As absurd as executing a painting may seem, executions in effigy were more common than you could ever imagine. Some excellent historians have been able to quantify the use of effigies in capital punishment. Julius Ruff discovered that one-third of all capital cases were tried in the absence of the accused in southwestern France. BenoÎt Garnot found this was the case for 40% of capital cases in Burgundy. Michel Porret found that 85% of capital sentences in Geneva between 1755 and 1790 were executed on an effigy. There appears to be very little difference between capital execution proper and capital execution in effigy for early modern people. Sometimes, officials did not even bother to indicate whether it was a human body or effigy that underwent the punishment.
Marissa: Effigies were sometimes used in early modern penal rituals when the accused had died by suicide before their sentence was carried out. In some jurisdictions, the corpse of the accused was used in the ritual as if they were alive. Paul Friedland found one case where a convict killed himself but his corpse was so decomposed before he was found that authorities were unable to use it for the execution. They used an effigy instead. Given the ubiquity of executions in effigy, it appears that the fine line between life and death for the accused hardly even mattered. It was the ritual that was important so that, in Friendland’s words, “the fact of the crime itself could be overcome.”
You have to think, though, that the difference between biological life and death would have mattered to the accused, right? One would think so… but I think it’s fair to say that in the early modern world, social death and eternal damnation were also terrifying options. The preference for a “good death” over permanent exile or eternity in hell can be illustrated by the fact that most convicts cooperated with all phases of capital punishment.
Averill: Records typically indicate that in almost all cases, the accused willingly performed their penal ritual. They performed whatever acts of penance were requested of them, compliantly endured their procession, the various indignities and humiliations that marked their trip to the gallows. Most astonishingly, they often delivered last speeches which were published far and wide all over Europe. These speeches often included contemplative reflections on their troubled lives, morality stories meant to steel the next generation against their particular vices, or diatribes about the righteousness of their trial and justice of their sentence. This is best explained by the suggestion that capital criminals took their salvation seriously.
Marissa: The importance of eternal salvation is also illustrated by one of early modern Europe’s most haunting phenomena: suicide by proxy. Suicide by proxy is sometimes called “indirect suicide” and its one of the unfortunate by-products of states who rely on capital punishment to deter crime. The killing of John Michael Furch by Agnes Catherine Schickin is a great example of this. Suicide by proxy can be found in the historical record primarily after 1670, so during that second spike in capital punishment experienced by early modern Europe.
Averill: Because of the prevalence of capital punishment, devout and suicidal Christians essentially used murder as an instrument of salvation. They usually sought out young and innocent, but baptized children to murder. They reasoned that young children were sinless, guaranteed eternal salvation. After murdering an innocent child, they presented themselves to the authorities, eager, for the death sentence, which would, ceremoniously, bring an opportunity for repentance before death, thereby guaranteeing them both self-imposed death (suicide), AND eternal salvation.
Marissa: As I suggested at the top of the show, historian Kathy Stuart, wrote an excellent article (and book chapter) about this where she offers the following explanation for this horrific phenomenon. In early modern Europe, people who took their own lives were denied a Christian burial, especially in Catholic regions. Not only was suicide a cardinal sin, it was thought to pollute consecrated ground. In cases of obvious mental illness, parishes sometimes authorized the burial of suicides on church grounds. Popular belief in the pollutive effect of suicide was so strong that parishioners sometimes disinterred the remains of suspected suicides and disposed of them elsewhere.
Averill: In Germany, one common folk belief was that the bodies of suicides could not be removed from their dwellings via the doorway. Many believed that if a suicide was carried over the threshold of their home, their ghost would return to the house after being rejected by God. Therefore, it became a common practice for the bodies of suicides to be removed through a hole dug under the threshold rather than through the doorway. In most of Europe, the town’s executioner or skinner was in charge of burning or otherwise disposing of the remains of any suicides in their district. Sometimes they buried the remains beneath the gallows, which was regarded as an infamous, dishonorable, and polluted place.
Marissa: Protestant theology regarded suicide differently and did not consecrate burial grounds but most Protestant authorities reinforced the Catholic prohibition on Christian burial for suicides as a means of deterring others from carrying out their suicidal urges. Therefore, all of Europe witnessed spates of suicide by proxy, capital crimes perpetrated on innocents for the sole purpose of provoking the state into taking their lives. This allowed the faithful to achieve their desired outcome, their death, but it guaranteed them the benefits of Christian burial and, by extension, everlasting salvation.
One Swedish man who had a good reputation stabbed a four year old boy in the neck while he played in his yard. During his confession, the man said, “I know very well that there is no surer way to achieve eternal salvation than if the fully conscious soul exits a strong body… and is carried upward toward God by the pious prayers of people of faith… I realized it would be impossible to die this way unless I committed a capital crime, so I thought it would be easiest… if I killed a boy not yet corrupted by this life.” According to his vicar, the man went to his death “joyfully, loudly singing sacred hymns.”
Averill: Suicides by proxy followed a distinct pattern. The victims were young children, or intellectually disabled adults who were child-like. The murders were carefully calculated and premeditated, with the accused taking days or even weeks to plan. The murderer usually heaped affection on the child or plied them with gifts and treats prior to murdering them. The slayings were brutally violent, we’re talking decapitations, drownings, and severe blunt force trauma. The murderer typically presented themselves to authorities immediately after the offense, confessed fully, and gleefully awaited their execution. During the investigations, most perpetrators elaborated on the child’s moment of death, claiming that they solemnly agreed to die, or that they dutifully recited their prayers as they complied with their murderer’s plan. Stuart thinks that these are probably augmented as part of the perpetrator’s psychological need to assure themselves of the child’s salvation, thereby guaranteeing a net gain in saved souls. After all, if the proxy suffered damnation, then the suicidal murderer merely switched their own damnation for the proxy’s.
Marissa: By 1750 or so, the relationship between citizens and the state appeared to have changed. Permanent gallows and the festivals that were launched around them at execution time had an unanticipated effect. The ordered, revered ritual of execution common for most of the early modern period had always served to reinforce the state’s authority. Michel Foucault describes this process as one in which the state establishes its monopoly over legitimate violence.
Perhaps it was the increase in post-mortem punishment, the increased visibility of botched executions, or the re-categorization of property crimes as eligible for the death penalty; historians are not exactly sure. But by 1750, public execution began to work against the state’s aims. The solemn ceremonies of yore had evolved into carnivals reclaimed by “the mob” in OPPOSITION to the state. At the same time, the unauthorized use of human remains by anatomists was a hot-button issue, prompting several anatomy riots, a crack-down on grave-robbing and body snatching, and a spate of anatomy acts which formalized the use of executed remains for anatomical study.
Averill: In Britain, Germany, and Muscovy specifically, later-18th-century reformers harnessed this public discontent to muster up support for penal reform. With the exception of Revolutionary France, where the guillotine separated the bodies of record numbers of aristocrats from their heads, capital punishment was on its last leg in 1790s Europe. Liberalizing European states built penitentiaries and established professional police forces, obviating the need for the dramatic capital punishments of previous centuries. Britain, Scandinavia, continental Europe and Muscovy incrementally abolished inhumane modes of execution and punishments designed to humiliate and shame perpetrators throughout the 1800s.
Marissa: Though public execution remained into the 20th century, imprisonment became the standard punishment, even for some violent crimes, and methods of execution became increasingly humane. German authorities dismantled the permanent gallows and ravenstones in the late-18th and early-19th centuries. Britain abolished most forms of corporal punishment, especially the gruesome mutilation that had characterized the “bloody codes.” In the face of growing secularism and declining executions, instances of suicide-by-proxy plummeted and then disappeared. By 1900, capital punishment was still in use in most parts of the world but was typically reserved for violent and aggravated crime.
This is not at all where the story ends but that’s a story for another episode.
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