Shame, Blame, and Culpability: Crime and Violence in the Modern State 9780415537223, 9780203110621

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Shame, Blame and Culpability

This ground-breaking collection of research-based chapters addresses the themes of shame, blame and culpability in their historical perspective in the broad area of crime, violence and the modern state, drawing on less familiar territories such as Russia and Greece, not just on material from familiar locations in Western Europe. Ranging from the early modern to the late twentieth century, the collection has implications for how we understand punishments imposed by states or the community today. Shame, Blame and Culpability is divided into three sections, with a crucial case study part complementing two theoretical parts on shame, and on blame and culpability, exploring the continuance of shaming strategies and examining their interaction with and challenge to ‘modern’ state-sponsored blaming mechanisms, including allocations of culpability. The collection includes chapters on the deviant body, capital punishment and, of particular interest, Russian case studies, which demonstrate the extent to which the Russian, like the Greek, experience needs to be seen as part of a wider European whole when examining ideas and themes. The volume challenges ideas that shame strategies were largely eradicated in postEnlightenment Western states and societies, showing their survival into the twentieth century as a challenge to state dominance over identification of what constituted ‘crime’ and also over punishment practices. Shame, Blame and Culpability will be a key text for students and academics in the fields of criminology and criminal justice, law and European history. Judith Rowbotham is a Director of SOLON and one of the General Editors of the Routledge SOLON series and a noted interdisciplinary scholar working in law, history and criminology. Her research interests include the presentation or reportage of the legal process, including the criminal justice system, in various media formats (nonfiction, including newspapers, and fiction) and issues of gender, violence and cultural comprehensions of the law in action, from the late eighteenth century to the present. Marianna Muravyeva is Associate Professor of Law at Herzen State Pedagogical University, St Petersburg, Russia, and a senior researcher at the University of Helsinki. Fluent in several languages and an acknowledged interdisciplinary scholar, she specialises in gender history, history of crime and violence against women in early modern Europe. David Nash is a Director of SOLON and one of the General Editors of the Routledge SOLON series. He has researched and published extensively on the history of the secular movement in Britain as well as on the links between religion and crime. He is an acknowledged world expert on the history of blasphemy who has given advice on the issue to a number of governments in the Western world and who regularly comments on the matter for the media. He is currently working on a volume investigating twentieth-century dimensions of shame.

Routledge SOLON Explorations in Crime and Criminal Justice Histories Edited by Kim Stevenson, University of Plymouth, Judith Rowbotham, Nottingham Trent University and David Nash, Oxford Brookes University

This series is a collaboration between Routledge and the SOLON consortium (promoting studies in law, crime and history), to present cutting-edge interdisciplinary research in crime and criminal justice history, through monographs and thematic collected editions that reflect on key issues and dilemmas in criminology and socio-legal studies by locating them within a historical dimension. The emphasis here is on inspiring the use of historical and historiographical methodological approaches to the contextualising and understanding of current priorities and problems. This series aims to highlight the best, most innovative interdisciplinary work from both new and established scholars in the field, through focusing on the enduring historical resonances to current core criminological and socio-legal issues.

1. Shame, Blame and Culpability Crime and violence in the modern state Edited by Judith Rowbotham, Marianna Muravyeva and David Nash

Shame, Blame and Culpability Crime and violence in the modern state

Edited by Judith Rowbotham, Marianna Muravyeva and David Nash

First published 2013 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN Simultaneously published in the USA and Canada by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2013 selection and editorial material, Judith Rowbotham, Marianna Muravyeva and David Nash; individual chapters, the contributors The right of the editor to be identified as the author of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Shame, blame, and culpability: crime and violence in the modern state/edited by Judith Rowbotham, Marianna Muravyeva, and David Nash. p. cm. — (Routledge SOLON explorations in crime and criminal justice histories; 1) Includes bibliographical references and index. 1. Shame. 2. Blame. 3. Crime. 4. Violence. I. Rowbotham, Judith. II. Muravyeva, Marianna. III. Nash, David (David S.) BF575.S45S522 2012 152.4′4—dc23 2012004638 ISBN: 978–0–415–53722–3 (hbk) ISBN: 978–0–203–11062–1 (ebk) Typeset in Times New Roman by Florence Production, Stoodleigh, Devon

Contents

Notes on contributors

vii

Preface: Towards a history of shaming and blaming

xi

XAVIER ROUSSEAU

Acknowledgements Introduction

xv 1

JUDITH ROWBOTHAM, MARIANNA MURAVYEVA AND DAVID NASH

PART I

Theorising shame 1

Vergüenza, vergogne, schande, skam and sram: litigating for shame and dishonour in early modern Europe

15

17

MARIANNA MURAVYEVA

2

Fama, shame punishments and the history of justice in the sixteenth and seventeenth centuries

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ANTONELLA BETTONI

3

Towards an agenda for the wider study of shame: theorising from nineteenth-century British evidence

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DAVID NASH

PART II

Rethinking blame 4

The shifting nature of blame: revisiting issues of blame, shame and culpability in the English criminal justice system JUDITH ROWBOTHAM

61

63

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Contents

5 Guilty before the fact? The deviant body and the chimera of ‘precrime’, 1877–1939

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NEIL DAVIE

6 The ‘convict stain’: desistence in the penal colony

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BARRY GODFREY

PART III

Issues of authority in shame, blame and culpability 7 Penance, compensation, terror: the theory and practice of capital punishment in early modern France

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111

PAUL FRIEDLAND

8 Hurt, harm and humiliation: community responses to deviant behaviour in early modern Scotland

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ANNE-MARIE KILDAY

9 Violence against honour: shame and the crime of rape in the age of the Greek Revolution (1821–1828)

141

KATERINA MOUSADAKOU

10 ‘Treat them according to the European tradition’: the discourse of blaming the poor, the problem of professional beggars and attitudes to poverty in modern Russia

152

JULIA BARLOVA

11 Shaming punishments of women in Russia in the nineteenth and early twentieth centuries

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NATALIA PUSHKAREVA

12 Insulting the Russian royal family: crime, blame and its sources

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BORIS KOLONITSKY

13 Crime and culpability in the community, the newspapers and the courts: the case of the feuding society of Crete (Greece)

199

ARIS TSANTIROPOULOS

Bibliography Index

215 221

Notes on contributors

Julia Barlova is Associate Professor of History at the World History Department, Yaroslavl State Pedagogical University, Russia, specialising in problems of poverty in modern Europe and the history of social policy. The author of over forty articles in such research fields as the eighteenth century: British political and cultural history, her latest publications include ‘The System of Poor Relief in Britain’, in Dialog so Vremenem: Almanach Intellektualnoi Istorii IVI RAN [Dialogue with Time: Intellectual History Review, Institute of Universal History, Russian Academy of Sciences], 28, 2009; and ‘Sir Frederic Morton Eden and His Work “The State of the Poor”’, Voprosi Istorii [Issues in History], 5, 2009, 162–70. A monograph, Punish or Help? Attitudes to Poverty and the Poor in Modern Britain, will be published in 2012. Antonella Bettoni completed her Ph.D. in legal history in 2004, and her present research interests include early modern and modern juridical doctrines of infamy, of ‘social danger’ and of certain aspects of the criminal trial (crime information, res judicata). Recently, she has started studying Home Rule implementation in Northern Ireland and the discipline of political crime in the United Kingdom. The author of numerous scholarly articles and chapters, she is currently a research assistant at the Istituto di Studi storici, University of Macerata, Italy. Neil Davie is Professor of British History at Université Lumière Lyon 2, France. His research is mainly in the field of criminal justice history, particulary the history of criminology and penal policy in the Victorian and Edwardian periods. His published work includes Visages de la criminalité: À la recherche d’une théorie scientifique du criminel-type en Angleterre, 1860–1914 [Criminal Faces: In Search of a Scientific Criminological Theory in England 1860–1914] (Kimé, 2004), and Tracing the Criminal: The Rise of Scientific Criminology in Britain, 1860–1918 (Bardwell, 2005). He is currently working on a study of the penitentiary movement in Britain, 1770–1850, also to be published by Bardwells. Paul Friedland is Associate Professor of History at Bowdoin College and a Visiting Fellow at the Centre for European Studies, Harvard University. His

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research includes the history of France and Europe more widely (including Russia) in the early modern period and the eighteenth century, with a particular focus on spectacle and theatricality and the role of crowds and the state. His publications include Seeing Justice Done: The Age of Spectacular Capital Punishment in France (Oxford University Press, 2012), Political Actors: Representative Bodies and Theatricality in the Age of the French Revolution (Cornell University Press, 2002) and numerous articles. Barry Godfrey is Professor of Social Justice at Liverpool University. He researches the history of crime, criminal justice policy in the realm of sentencing and the management of habitual and serious offenders, and has an interest in longitudinal studies of offenders and offending. His latest books, written with colleagues, include two volumes in the Clarendon Series in Criminology (Criminal Lives, 2007; Serious Offenders, 2010). In 2012, Policing the Factory will be published by Continuum. Anne-Marie Kilday is a Director of SOLON and Professor of Criminal History at Oxford Brookes. Her specialist teaching focuses on the history of violent crime and its punishment in Britain and America. Her research focus is on the history of crime, examined through a range of different contexts and perspectives. She has published extensively on the history of criminality with a particular focus on female violence in the early modern period and beyond. Her most recent monographs include Women and Violent Crime in Enlightenment Scotland (Boydell, 2007) and (with David Nash) Cultures of Shame: Exploring Crime and Morality in Britain 1600– 1900 (Palgrave Macmillan, 2010). She is currently working on two book projects: A History of Infanticide in Britain since 1600 (forthcoming, Palgrave, 2013) and The Violent North? A History of Crime in Scotland since 1600 (forthcoming, Routledge, 2014). Professor Kilday is an editor of the SOLON e-journal, Law, Crime and History. Boris Kolonitsky is a Vice-Rector and Professor at the European University in St Petersburg. A specialist in Russian pre-revolutionary political history, he is the author of over one hundred publications. His books include Simvoly vlasti i bor’ba za vlast’: K izucheniiu politicheskoi kul’tury Rossiiskoi revolutsii 1917 goda ]Symbols of Power: The Political Culture of the Russian Revolution of 1917] (Dmitry Bulanin, 2011); ‘Tragicheskaia erotika’: Obrazy imperatorskoi sem’I v gody Pervoi mirovoi voiny [‘Tragic erotica’: The Images of Russian Royal Family during the First World War] (Novoe literarutnor obozrenie, 2010); and (co-authored with Orlando Figes), Interpreting the Russian Revolution: The Language and Symbols of 1917 (Yale University Press, 1999). Katarina Mousadakou is a professional historian, with an MA in Modern and Contemporary Greek History from the University of Athens, where she is also a Ph.D. candidate. Her research interests cover many aspects of social history: the history of private life, social institutions, education, police and

Notes on contributors

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justice, and gender history, as she speaks Greek, English, French and Italian. She has undertaken research projects with the National Hellenic Research Foundation, the Academy of Athens, the University of Athens, the Athens Byzantine Museum and the Music Library of Greece, regularly presenting papers at international conferences. Publications include ‘Community and Embassies of the Greek regions under Venetian rule. Aspects of institutions of social concern’, Eoa and Esperia, 7, 2007, 191–212. Marianna Muravyeva is Associate Professor of Law at Herzen State Pedagogical University, St Petersburg, Russia, and a senior researcher at the University of Helsinki. The Russian local organiser of the SOLON conference in St Petersburg, she specialises in the gender history, history of crime and violence against women in early modern Europe and is the author of over one hundred publications, including edited volumes such as Vina i pozor v kontekste stanovleniia evropeiskikh gosudarstv novogo vremeni (XVI–XX vv.): sbornik statei [Shame, Blame and the Modern State (XVI–XX centuries)] (European University Press, 2011); Gendernaia istoriia: pro et contra [Gender History: pro et contra] (Nestor, 2000). Recent chapters and articles include ‘Le viol dans les codes militaires russes de Pierre le Grand à l’Armée rouge’, in Raphalelle Blanche et Fabrice Virgili (eds), Viols en temps de guerre (Payot, 2011) and ‘Sexual Variations’, in Julie Peakman (ed.), Cultural History of Sexuality, Berg, 2010, Vol. 4. David Nash is a Director of SOLON and Professor of History at Oxford Brookes University, a Fellow of the Royal Historical Society and one of the General Editors of the Routledge SOLON series, Explorations in Crime and Criminal Justice History. He has researched and published extensively on the history of the secular movement in Britain as well as on the links between religion and crime. He is an acknowledged world expert on the history of blasphemy who has given advice on the issue to a number of governments in the Western world and who regularly comments on the matter for the media. His publications include two ground-breaking monographs on blasphemy, Blasphemy in Modern Britain 1789–Present (Ashgate, 1999); Blasphemy in the Christian World (Oxford University Press, 2007); and (with Anne-Marie Kilday) Cultures of Shame: Exploring Crime and Morality in Britain 1600–1900 (Palgrave Macmillan, 2010), and he is currently working on a further volume investigating twentieth-century dimensions of shame. Natalia Pushkareva is Professor and Head of the Department of Gender Studies at the Institute of Ethnology and Anthropology, Russian Academy of Sciences, and President of the Russian Association of Researchers in Women’s History. A specialist in the history of Russian women, she has written 8 monographs and over 450 articles, chapters, etc. Her key works include Zhenshschiny Drevnei Rusi [Women of Ancient Russia] (Mysl’,

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Notes on contributors 1989); Russkaia zhenshschina: istoriia i sovremennost [The Russian Woman: Past and Present] (Ladomir, 2002); Women in Russian History from the 10th to the 20th Century (M.E. Sharpe, 1997).

Judith Rowbotham is a (founding) Director of SOLON, one of the General Editors of the Routledge SOLON series, Explorations in Crime and Criminal Justice History, a Reader in Historical Criminal Justice Studies at Nottingham Trent University and a Fellow of the Royal Historical Society. Her research interests include the presentation or reportage of the legal process, including the criminal justice system, in various media formats (non-fiction, including newspapers and fiction) and issues of gender, violence and cultural comprehensions of the law in action, from the late eighteenth century through to the present. Her long-term research project focuses on the exporting of legal cultures to the British Empire and its modern legacies. Publications include Crime Intelligence, A SocioLegal History of Crime Reportage from c.1760 to the Leveson Enquiry (with Kim Stevenson and Samantha Pegg, forthcoming Palgrave, 2012); Gender, Violence and Visibility: Interpreting and Managing Public and Private Violence c.1760–2011 (forthcoming, Routledge SOLON, 2013) as well as numerous articles. Aris Tsantiropoulos is Assistant Professor of Social Anthropology at University of Crete (Greece) and has conducted fieldwork and archival research in Crete. His current research uses historical and psychoanalytical anthropology, discourse analysis to focus on interconnections between forms of local violence and the state and social memory (especially in its connection with traumatic facts). Publications include The Blood-feud in Contemporary Mountainous Crete (Plethron Editions, 2004); ‘Collective memory and blood feud: the case of mountainous Crete’, Crimes and Misdemeanours, 2(1), 2008; and ‘Social and economic transformation in central mountainous Crete: the village Zoniana as a case for a preliminary approach’, Ariadni, 13, 2007.

Preface Towards a history of shaming and blaming Xavier Rousseau

Since the 1980s, the argument for a return to defamatory and stigmatising penalties in criminal justice management has made a reappearance in the West.1 This resurgence seeks to affirm the legitimacy of public sanctions against behaviours judged to be anathema to law as well as to society. Such impulses are a response to a perceived failure of preventive and reconciliatory policies, particularly incarceration. At a time when the media consistently highlights the negative impacts of crime, resorting to an insistence that miscreants are publicly vilified and/or publicly express their culpability offers a way of escaping the modern reliance on the monopoly of prison sentences as the only available sanction in law. It also enables the ‘public’ to participate in what has come to be termed ‘restorative’ justice. In the United States, for example, four categories of delinquents have become the key targets for such defaming penalties: first-time offenders and juveniles, minor offenders, sex offenders and, more recently, commercial offenders. However, criticisms have also arisen relating to the uncontrollable (and unpredictable) character of those penalties that the state ‘legitimately’ delegates to the population at large. Such penalties arguably subvert the fundamental ethics on which American democracy was built – i.e. ‘restraint and sobriety’.2 Jurists, philosophers and sociologists have noted the extent to which a return to defamatory penalties represents a deep rupture with the penal philosophy inherited from the eighteenth century. Many Enlightenment philosophers, whether upholders of the Lumières, the Aufklärung or English liberal rationality, denounced defamatory penalties that drew on concepts such as the primacy of the individual will (moral freedom or religious choice) or pointed to conduct where the nature and extent of the delinquency involved was debatable (adulterous behaviour, bigamy). Beccaria, Voltaire, Bentham and other critics of ancien régime justice powerfully emphasised the destructive effects of defamatory penalties leading to the ‘civil’ and social death of those condemned. Indeed, the major, contemporary juridical systems of the West were built on the foundations of such lucid analysis of the abuses inherent in shaming punishments. More recently, Foucault, in analysing Damiens’ tortures, showed the extent to which the ‘infamy’ inextricably associated with punishment has served to reinforce the ideology of sovereign power.3 From

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the end of the eighteenth century, the laws of national states have favoured the progressive disappearance of both defamatory penalties and public penalties as signs of an increasing ‘civilisation’ in the moralities and manners of their citizens. Nevertheless, penalisation involving strategies to slander, and so shame, individuals never entirely disappeared as evidenced in the twentieth century by ‘totalitarian’ regimes or in colonial societies. The stigmatising practices of Nazi, Stalinist or Maoist justice find echoes with the culture of lynching that developed in the southern states following the end of the American Civil War, or the use of public penalties by European colonists to reinforce segregationist policies.4 Similarly, the European experience shows the extent to which even parliamentary democracies utilised such forms of popular justice in the aftermath of its two world wars, as illustrated by the shaming treatment of collaborating French women in 1918 and 1943–44.5 Far from being eruptions of uncontrolled violence, a recourse to defamatory punishments appears to be a marked phenomenon in periods when there is a reduction of state legitimacy, such as at the end of military occupations or conflicts. Defamatory penalties may, therefore, frequently manifest themselves in the context of a weakened state as a means of political relegitimation. This debate around the re-emergence of defamatory penalties invites historians to revisit the history of stigmatisation observable in pre-modern Europe, for example. The emergence of various forms of defamatory sanction at the end of the Middle Ages and their subsequent incorporation within legal processes and penal practices characterised European justice from the sixteenth to the nineteenth centuries. Such penalisation represented innovative attempts to address the issue of problematic public and moral behaviours that had previously been managed by a system of levying fines.6 Historians of premodern Europe have renewed our knowledge of the mental competencies of pre-modern humanity by drawing on anthropologists’ work on ‘honour’-based societies.7 Anthropological concepts have consequently been used as an interpretational model, particularly when working through extensive judicial archives with material testifying to the range of behaviours and rituals involved in conflict resolution, resulting in the histories of the emotions current in European society from the thirteenth century onwards.8 A return to examining emotions through historically inflected legal analysis is perceptible in such a project as this, which tries to look beyond the over-generalising conclusions provided by the interpretations of political or social histories. The anthropological approach to honour and shame as the bases of social relations in pre-industrial societies also influenced Norbert Elias’ perspectives on the transformation of moral values in the West. He delineated two tendencies: one top-down and the other bottom-up. The socio-political perspective (top-down) insists on the actions of a modern state in gradually imposing a monopoly on the legitimate use of force. This evolution is manifested by the disciplining of populations via public expressions of shame. The socio-anthropological perspective (bottom-up) sheds light on the development of Western societies towards an increasing individualisation in

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lifestyles. On the level of individual mores, this movement is accompanied by an internalisation of the values of honour and shame. Elias’ approach does not contradict Foucault’s conclusions, but underlines their common descent from Max Weber’s central assumption about the ability to detect (in Western history) a process of rationalisation, involving the gradual emergence of those bureaucratic forms of power which constitute the modern state. Among the most efficient of these, law and an associated model for the public delivery of justice have, over the long term, steadily imposed themselves as practices rationalising the processes involved in conflict resolution. This was Western society’s mighty Leviathan, guaranteeing the stability of conflict resolution between citizens, between communities and between states. Such forms of justice delivery were imposed first by an integration within state-managed legal systems of the existing stigmatising practices and functions of local communities, and subsequently by their reduction over time to a minimal expression involving such communities. Thus, a position developed where the death penalty had to be performed without accompanying shaming rituals, and then without public visibility, as expressed first in the development of the guillotine during the French Revolution, followed by the disappearance of public executions in France. After the first conference volume devoted to a multidisciplinary approach to violence,9 Shame, Blame and Culpability extends SOLON’s investigation of the modernisation of European societies by exploring the dimensions of the transition to modernity from pre-modern society, a transition which is clearly illustrated through change and continuities in the uses of law and criminal justice processes. As a number of the case studies reveal, the volume also shows the dangers of and limits to the current ‘rediscovery’ of the social power of shame, pointing up the destructive uses that post-modern states can make of such policies. This volume therefore presents an important revisiting of a nexus of values relating to norms within modern societies. It does so in a number of ways, including its discussion in various chapters of the anthropological concepts in use in modern law and justice systems; by a continuing emphasis on research undertaken in Southern and Eastern Europe to challenge the certainties of established European research; and, finally, by its comments on the transformations of what constitutes ‘shame’ in modern societies. The value of this work lies in its insistence on the phenomena revealing shame’s complexity and the polysemia of shaming practices. On the one hand, it insists on the variety of ‘reputations’ depending on cultures, social memberships, gender and age. However, additionally it particularly insists on the ambivalence of fama (reputation), coming into play in slandering processes and in the subsequent practices aimed at recovering individual honour. The volume demonstrates the range of ways in which, over time, modern states constructed their modernity, by differential integrations of the oppositions between cultures of responsibility and ones of guilt. Thus, a valorisation of practices for allocating blame and culpability enabled their widespread emergence in modern Western Europe. In this sense, shame is a ‘social

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emotion’. If expressed differently in pre-modern and modern society, it remains at the heart of modern society, now fostering individual and internalised guilt instead of externalised dishonour. Finally, regulation by shame, if it largely depends on values popularly promoted as constituting social status, leaves room for personal agency in the construction or reconstruction of individual honour. The second characteristic of the volume before us is its presentation of a variety of case studies, including pre-modern Russia, the Balkans, Greece and even Australia. This contributes substantially to a ‘de-Westernising’ and thus a globalisation of the debate process on shaming. Lastly, these contributions highlight the extent to which the processes of shame, blame and culpability are at the heart of the evolution of relations between communities and the modernising state, including explorations of individuals torn between their community and the state. Crimes of honour and defamatory penalties are two manifestations of shaming at the extremes of the legal/judiciary chain. This work thus insists on the transformations manifest in shaming processes in the eighteenth and nineteenth centuries and their integration into law and judicial practices, as shown by the distinction that modern jurists have consistently made between natural and civil honour. As a complete and rounded volume, the editors and contributors invite us to reflect on a history of honour and shame, examining both the heights and the depths of humankind and human nature.10

Notes 1 John Braithwaite, Crime, Shame and Reintegration, Cambridge: University Press, 1989. 2 James Q. Whitman, ‘What is Wrong with Inflicting Shame Sanctions?’, Yale Law Journal, 107(5), 1998, 1055–92, p.1089. 3 Michel Foucault, Discipline and Punish, The Birth of the Prison, New York: Vintage Books, 1979. 4 Pieter Spierenburg (ed.), Men and Violence: Gender, Honor, and Rituals in Modern Europe and America, Columbia, OH: Ohio State University Press, 1998. 5 Fabrice Virgili, Shorn Women: Gender and Punishment in Liberation France, Oxford: Berg, 2002. 6 Xavier Rousseaux, ‘“Sozialdisziplinierung”, Civilization of Manners and Monopolisation of Power: Towards a History of Social Control in Southern Netherlands 1500–1815’, in Maria Ågren, Åsa Karlsson, Xavier Rousseaux (eds), Guises of Power: Integration of Society and Legitimation of Power in Sweden and the Southern Low Countries, ca 1500–ca 1900, Uppsala: Uppsala, History Department, 2001, pp.109–31. 7 Julian Pitt-Rivers, The Fate of Shechem or, The Politics of Sex: Essays in the Anthropology of the Mediterranean, Cambridge: Cambridge University Press, 1977. 8 Daniel L. Smail, The Consumption of Justice: Emotions, Publicity, and Legal Culture in Marseille, 1264–1423, Ithaca, NY: Cornell University Press, 2003. 9 Shani D’Cruze, Efi Avdela and Judith Rowbotham (eds), Problems of Crime and Violence in Europe 1750–2000, Lampeter: Mellen, 2010. 10 Daniel L. Smail, On Deep History and the Brain, Berkeley and Los Angeles, CA: University of California Press, 2008.

Acknowledgements

The editors, and the Directors of SOLON generally, would like to thank Herzen State Pedagogical University, St Petersburg, for its hospitality at the conference which saw the inception of this volume, and all the paper-givers at that conference, including those not contributing to this volume. It was a lively and important conference, and their contributions helped to shape the Introduction to this collection. We would also like to thank George Nianias of Denholm Hall for his generous contribution via the Nianias Foundation, which enabled this conference to take place, and Oxford Brookes University for their support for UK speakers. We would also like to express our gratitude to the Routledge team, including Tom Sutton and Nicola Hartley, for their help and support in guiding the volume through to its final appearance.

Introduction Judith Rowbotham, Marianna Muravyeva and David Nash

Background The legal history of crime and violence, and its management by the state, is a well-established field of study, and one with an extensive historiography, especially for Western Europe and the Americas.1 This is the second volume in a series that seeks to widen considerations of this socio-legal history by examining these themes within the context of the management of crime and violence by states. The series also does this by approaching these concepts from interdisciplinary perspectives (chiefly law, history and criminology), and also by expanding the usual locational perspectives for such studies, to include Northern as well as Eastern Europe in this comparative exploration of themes and issues. As with the first volume, Problems of Crime and Violence in Europe, 1780–2000,2 this collection emerges from an important conference, Crime Violence and the Modern State II: Blame, Shame and Culpability, which took place in St Petersburg in May 2009. This conference adopted the tropes of shame, blame and culpability to advance understanding of the processes through which crime was managed and, in particular, punishments, formal and informal, have been used by the modern state and accepted (or not) by societies or groups within these states. There are often expectations that ‘shaming’ punishments do not easily fit into a ‘modern’ state framework for the management of crime and violence, and that the ‘civilising process’ means a move away, over a historical timeline, from shame to the more ‘sophisticated’ and ‘modern’ conceptualisations inherent in the operation of blame and culpability. These were stereotypes we sought both to explore and to challenge, by asking the extent to which all three approaches could, in theory and in practice, work together within state management processes. Our starting point was to query the extent to which ‘modern’ states have, from medieval times and with surprising longevity, continued to find it important to use the concepts of blame and culpability in association with shame as the end product of criminalisation processes, making all three core pillars of a criminal justice system. This of itself raised several questions, including the apparent or even alleged ‘modernity’ of such concepts and their

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usage in this context. How has blame/culpability been placed and described by particular societies in particular times and places? Have certain types of individual or group conduct been targeted increasingly for attention by state authorities (local or central) within this process, especially that coming under the heading of interpersonal violence, and, if so, why? Historically (with the exception of murder) everyday interpersonal violence has been seen as more ‘private’ and less part of the public province of the state.3 Is it a feature of ‘modernity’ to find it being progressively targeted by state procedures instead of being left to internal community management, or is the interest of the ‘modern’ state simply an enhancement of a pre-existing interest in interpersonal violence? This is an approach that takes further, and questions, some of the issues raised by scholars of violence in the modern era such as John Carter Wood.4

Blame, shame and culpability – and modernity Why shame, blame and culpability? What this collection will demonstrate is that these apparently similar terms cannot be seen as interchangeable, and yet there can be complimentarities between them, both in the theoretical frameworks in which they operate and the actual practices pursued by states. We here understand shame as an essentially public thing, as part of longstanding community strategies for management of offensive behaviour that may, or may not, have a formal legal dimension to it. Blame rests on ancient cultural formulae for allocating responsibility for ‘bad’ behaviour among the players in an offending scenario, enabling punishments to be mediated according to the levels of blame allocated to those most responsible for the offending. Culpability, by contrast, is a more mechanistic process, located firmly within formal legal processes and requiring an assessment of ‘guilt’, rather than blame or shame. Culpability implies offending that results from a state of mind where individuals, either deliberately or negligently, cause harm, but where that harm may not be to another individual but to the state. Thus, in making these terms our defining and unifying core, our aim is not semantic imprecision. Instead, it is an extended and sustained discussion of just why it is important to conceptualise these terms and explore their applications within modern states, especially when looking beyond anglophone scholarship. Use of these concepts also invites the reader, if indirectly, to reflect critically on the usefulness of the civilising trope put forward by Elias and others, which has already received direct critical attention in the previous volume.5

The modern state, law and violence Behind these questions lie deeper questions about the state and its relationship to its citizens. Any normative account of the proper role, reach, content and enforcement of the criminal law depends on a political conception of the role and authority of the state, and how this has changed and evolved over time,

Introduction

3

though legal theorists have too rarely articulated such historically inflected conceptions in any depth.6 Does an examination of the operation of the law (particularly in the processes of allocating blame, shame and culpability) in historical context reveal a broad consensus about what constitutes criminality within those parameters? Can an historical examination of a criminalisation process, one advanced by ideas of blame and culpability in particular, be revealing of the state responding to popular concerns about violence, or instead be a process where the state and its supporting elites are out of step with popular understandings of what constitutes unacceptable violence? Where does shame locate itself in terms of such popular understandings? Indeed, given that violence as a descriptor in itself carries connotations of conduct that historically go beyond the normal parameters of interpersonal reactions, when (chronologically) and why does the label of violence become applied to particular manifestations of personal conduct? When identifying ‘violence’ and its application to situations, how far does it signal a transitional community response, reflecting new or enhanced concerns over the acceptability of types of visible behaviour that are labelled as ‘violent’? This collection demonstrates that it is by no means clear that there has been a linear development, amounting to modernity, in attitudes towards what comes to be labelled as violence in different times and places. Instead, the chapters show how complex and fluid, over time, such conceptualisations have been in different regions, and for different reasons. The context in which this is explored is that of the ‘modern’ state and its laws, broadly comprehended. If ‘modernity’ in relation to errant behaviour that is targeted by law is a term much used, but not always well understood, the same holds true for what constitutes a ‘modern’ state. Implicitly at least, those who work in the areas of crime and legal history will look to Foucault and Elias, and the concepts they inspired relating to the modern state as a promoter of ‘disciplined’ and ‘civilised’ conduct.7 But, as several of the chapters in this collection reveal, even analyses of aspects of criminalisation in Western European states do not always readily fit into a model which, from the eighteenth century on, identifies a will to create a disciplined and orderly state by the imposition of greater central authority upon everyday life through the processes of the law. This collection illuminates this complexity and challenges established certainties about chronologies and characteristics of modernity. A key theme in this book is the promotion of a greater understanding of the relationship between law and culture. Here we look beyond a model that moves from an early modern dynamism to a more modern, state-controlled, ideal type to one that is, again, less predictably linear and where community reactions to state interventions are also less predictable. For all these reasons, this collection on the ‘modern’ state includes a wide chronological range to reflect the complexity involved in the development of what can be labelled a ‘modern’ state. This challenges established understandings of the way in which criminal justice systems have operated by using these concepts (which do, indeed, materialise as social phenomena,

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attesting to their significance). By using a set of concepts that have relevance to diverse societies and legal systems, we can reveal unexpected similarities and cross-fertilisation of ideas as well as differences, and the reasons for these differences. The chronology moves away from the ‘usual’ constraints dividing the early modern from the modern, because these are largely Western European or anglophone conceptualisations that distort the realities in other regions that comprise, historically, a more integral European unit in terms of crossinfluences and references. Broadly, we conceive of an identifiable emergence of an entity that has a claim to be identified as a ‘modern’ state from certainly the sixteenth century and have included chapters that explore the evolution of key ideas and institutions from that period onwards. As the chapters also indicate, history, law and other disciplines interested in the issues covered in this collection need to think afresh – to problematise in different ways – a number of core concepts identifying the modern state and its management through the tropes of crime and violence. The issues of what constitutes, and of where responsibility lies for, crime and violence in the modern state is partially dealt with by exploring the identification and measuring of the ‘harm’ of such acts from the perspective of both the individuals affected and the state. This is further contextualised in this Introduction by an outlining of how the chapters debate the issues of blame, shame and culpability, and the implications this has for existing scholarship.

Languages of law and modernity An aspect of modernity is often held to be the development of robust, sophisticated languages of law (particularly over the last 250 years), suggesting a key role being played by the Western European based Enlightenment.8 However, it cannot just be assumed that the Enlightenment was crucial in such development. There was clearly, for instance, a preparedness in the minds of Russians and Venetians to engage with such a development, because there was already a robust and complementary tradition there. Thus, this volume also challenges existing scholarship to consider the implications of the point that ideas are rarely a one-way street. There has, historically, usually been an exchange of ideas and experience, fostered through contacts that are broadly economic and cultural, between apparently disconnected states and regions, traceable even before the French Revolution, as the conference underlined.9 So, it must be asked not just what impact European ideas had on Russia, but also what was the impact Russian ideas had, say, on Western European understandings. The historical dimensions to the interchange of ideas relating to values, emotions and perceptions will require more work than that indicated here. Equally, how universal has a ‘popular’ belief in an equitable or ‘just’ world been, and how substantial, in practice, has been popular commitment to concepts of justice and equal access to justice? There are competing issues

Introduction

5

here, ones debated in the West since the days of classical Greece, including the invocation of the idea of lex naturalis, or natural law, and allied concepts such as ‘natural justice’ or ‘natural right’ (ius naturale). The debates testify to a long-standing tradition that certain things are ‘of nature’, and thus that, regardless of a different custom or culture, disputes can or should ‘naturally’ be ‘reasonably’ resolved in order to restore balance and equity in communities.10 In summary, there has traditionally been an investment by Western intellectual thinkers in the belief that the world is fundamentally equitable and that either nature, or God as the divine force governing nature, will ensure the maintenance of that balance in some way. How widespread was that belief, and how did it survive into modernity?11 Have ‘modern’ criminal justice systems incorporated that belief into their processes? A modern Western tradition of community resentments over state actions (including the criminalisation of some behaviour) suggests that this has not been perceived as happening by communities, but what have been the reactions to state actions in non-Western states?12 Has it been a universal that perceptions of such actions as overweening intrusions by authority have, on occasions, undermined the practical effectiveness of the criminal justice process and so the reputation of the state? The underlying theme of this volume is thus strategies for managing justice, examining both community and state inputs into such strategies. An important aspect of these explorations is to highlight the continuing role of shame, and its use by communities and state agencies. This is followed by a section on modern invocations of blame and culpability as ways of contextualising understandings of the continuing use of shame in both the criminalisation and punishment processes. The implications that the continuing invocation of shame in these processes have for the ability of states to impose management strategies within legal processes is explored in the final section, where a series of case studies show shame, blame and culpability in operation.

Managing justice: the role of shame A common, almost rhetorical, question has been to query whether, in practice, it has not provided ‘better’ justice when states largely leave many areas of everyday conduct up to the judgement of and consequent management by local communities. Historically, however, states have shown themselves increasingly reluctant to be so laissez-faire about this aspect of social management. A clear testament to this reality is provided by the increasing sophistication of Western criminal justice systems as they have proceeded to criminalise more and more areas of everyday life, not simply during these last ‘modern’ centuries but during the last millennium. All the chapters thus provide some challenge to those conclusions reached by Foucault, and relied on so heavily by crime historians in recent years, that ‘shame’ was something that largely disappeared from the armoury of state management of crime and transgressive behaviour – a move supported by communities and individuals who, it used to be argued, no longer supported shaming punishments such as the stocks.

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In order to point up both continuities and changes, we have divided the book into three sections, looking first at shame as a factor in the management of crime and violence, then examining blame and culpability in operation. The final section is based on a series of case studies drawn from across Europe, but particularly featuring Russia as well as Greece and Britain. As a starting point for the first section, Muravyeva provides a comparative perspective, analysing concepts of shame and honour in different European contexts. In seeking out a pan-European approach, or indeed a multi-layered and differing approach governed by other local or specific national factors, she analyses the meaning of these concepts in English, French, German and Russian penal laws, offering penetrating conclusions from those comparisons. Thus, in assessing the prevailing assumption that there was a north–south divide around the issue of honour – with the Mediterranean countries exhibiting something of an obsession with this – Muravyeva demonstrates the existence of a more complex reality, which is also touched on (at least implicitly) by Bettoni and later Friedland. Thus, as her systematic analysis of shame punishments and their function underlines, a focus on honour was, in fact, scarcely geographically unique if the terminologies used do not always make this immediately obvious. There is a need to explore the extent to which the value systems governing and shaping shame are key to understanding its wide currency and operation throughout the early modern period, as well as to their enduring legacy. Shame and honour emerge from many of these chapters in ways that reflect the points raised by Muravyeva: they act as remarkably effective measures of social control, while being also more flexible than the social control label suggests. All protagonists in shame episodes could manipulate many of shame’s components. This perhaps strengthened its power, making it both a formidable deterrent and flexible enough to enjoy a remarkable level of popular assent for long periods. In its focus on the operation of shame in earlier periods, Bettoni’s chapter highlights the echoes between an early modern desire for shame punishments and impulses, which are surprisingly close to the surface of modern society also. This is her inspiration for an investigation of how the concept of fama (reputation) amounted to a sophisticated tool in the hands of the early modern community and its courts, one shown here to have acted as an effective discretionary instrument used by both legal processes and individuals to establish the ‘infamous’ character of an offence or an individual performing such offences. She argues that the pre-modern state could engage in a process of seeking to remove the responsibility for identifying bad fama, and so the justification for deciding punishment, from local communities, while the stigma of shame in punishment was diluted by a state anxious to counteract community power via control over popular justice. Bettoni reflects that gradual state interest and encroachments upon the power and ideas underpinning justice had, over time, a corrosive effect upon the power, significance and consequences of fama. However, she points out also that this project was not totally successful, since that power persisted in the interactions of daily life

Introduction

7

away from judicial reach, and this, again, is a perspective that finds echoes in many of the chapters found in Part III. Drawing the threads of this section together, Nash seeks to suggest a methodological agenda for the scholarly study of shame that moves interest beyond the previously chronologically bound conceptions of the primitive and the civilised. Using already available work, and rejecting the simple reading of modern emotional individualism inspiring guilt rather than shame, he suggests precisely why socio-cultural historians and socio-legal scholars should seek to explore this area. Analysing how theoreticians such as Elias and Foucault created something of an aura and stranglehold around the teleological model of behavioural change, Nash advocates a more nuanced look at how shame had a still more resonating function in a modern society, precisely because it was modern. This is both challenged and affirmed by concluding chapters in Part III by Aris Tsantiropoulos and Boris Kolonitsky. Chapters from Part III generally take this agenda for the study of shame further, as reforms to systems of control and punishment explored by these case studies demonstrate how locales and power structures can be seen to have incorporated shame, rather than actively transcending it. Yet shame could also appear in other places and assume new guises. Thus, issues in behavioural propriety around drink, marital discord and shame punishments, alluded to by Nash, appear also in other chapters to suggest a continuity of shame’s existence as a social emotion. The power of the growing mass media emerges within some of these new studies as allowing the machinery of modernity to be harnessed for what some would consider older purposes. This allowed shame to be exercised around figures of national prominence transcending its existence as a primitive face-to-face emotion, a perspective requiring us to look back to earlier operations of shame.

Managing justice: the role of blame and culpability Part II, on rethinking the patterns of blame and culpability in relation to shame, starts with Rowbotham’s chapter, highlighting the use by state mechanisms of blame and culpability as ways of containing and contextualising older shaming processes at a time when the criminal justice process was being ‘modernised’. The process of prioritising the allocation of blame is shown to have become a ‘modernising’ device that promoted a reliance on state-managed formal justice processes, where culpability was used to justify the state’s actions in deciding on punishment strategies. True, older elements of shaming were retained as key aspects of a criminal justice process, operating in practice as a factor promoting popular assent to the increasing criminalisation of private behaviour. She argues that effectively, shame remained a more informal aspect of the criminal justice process, encouraged by the state as an essentially private reaction to standards of criminality established by that process, an attitude that persists today within a number of punishment and rehabilitation mechanisms. Public knowledge is also shown to be a continuing factor in the

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continuing role of shaming as an aspect of criminalisation – both Nash and Rowbotham emphasise the importance in modernity of the developing mass media as a channel of communication between state and community in conveying the grounds on which shame should be felt as a result of the allocations of blame and culpability. Again, this has interesting echoes in the case studies in Part III, where, for instance, Tsantiropoulos indicates the role of the media in identifying the tensions between localised shaming mechanisms and the ‘blame’ perspectives of the state-controlled formal justice system. In arguing that this has worked within the modern state because it permits a continuing degree of community involvement in the punishment process at least, enabling an easier acceptance by such communities of the arrogation of power over blame and culpability by the state, this chapter provides a perspective that enables reflections on the case studies of Barlova, Pushkareva and Mousadouko, for instance. However, provocatively Rowbotham concludes that a weakness of more recent criminal justice processes may lie in the fact that this shaming dimension of the system has fallen into abeyance in states such as the UK, as a result of a shying away by the formal legal process from the public shaming process – a point underlined further by Kolonitsky’s chapter exploring the usages of blame, shame and culpability by the Russian state. Helping to explain this reduction in the usage of shaming strategies, Davie’s chapter focuses on the early developments in what has become modern criminological theory with its emphasis on blame and culpability rather than shame. His chapter provides an exploration of the uneven history, during the late nineteenth century, of what he terms ‘precrime’, encompassing crime prevention and social cleansing initiatives that have little to do with the issue of individual choice to offend, which is implicit in shaming processes. He outlines the thinking and imperatives behind the search for the physical identifiers of a criminal type, with their implicit rejection of the voluntary impulses that justify and underpin a shaming process. Davie reveals the spectacular range of techniques and technologies that offered a ‘science’ of culpability as an alternative to older methodologies of shame and a consequentially simpler blaming process. In noting that a reappraisal of the supposedly opposing views of Francis Galton and Alphonse Bertillon allow us to see that they were much closer in intent than has previously been realised, Davie powerfully argues that Galton and Bertillon’s work should be seen together as part of a pattern of integrating generalised approaches to criminal identification that significantly shifted the emphasis to culpability, rather than choice, within Western criminology, with a consequent reshaping of how blame itself was understood. Although he accepts that by the 1950s such views had slid firmly from fashion as environmental explanations returned to criminological considerations, Davie’s conclusion is that such attitudes have had an enduring impact on the ways in which modern states understand criminality and incorporate that understanding into criminalisation processes. The re-emergence of ‘biological’ or ‘biosocial’ criminology in the 1980s, for

Introduction

9

instance, and the advent of DNA profiling and biometrics have served to relocate culpability back within the inevitability of an individual’s physiological and psychological make-up, reducing official recognition of the value of shaming processes. The importance of Barry Godfrey’s chapter is that it unpacks the enduring attraction of shame – its community value, effectively – within reactions to a criminal justice process where the original contemporary emphasis was on the mechanisms of blaming on the basis of an identified culpability. He unpicks the shaming and blaming intrinsic in the cultural construct of the so-called ‘convict stain’ which has permeated Australian society since the start of transportation of criminals there. It is shown to be enduring in terms of its historical power, but it is also shown that the post-colonial modern state has found it useful to ‘reinvent’ the reality of that shaming legacy as a way of absorbing those ‘shamed’ by the convict stain into a modern national identity. Thus, in the modern context this stain has a sustained impact in ways that can appear ambiguous but actually reflect the changing attitudes of the state and its relations with popular community perspectives. If it started as a shameful inheritance, it was then used to indicate a potentially dangerous behavioural compulsion allegedly passed though families, because that was useful to the colonial state and dominion of its time. However, it has now become a marker of individual Australian identity, consequently carrying considerable cachet in a context where the formal criminal justice process and the academic contextualisations of this have both rejected the value of shaming as an element within criminalisation. This chapter thus reveals the ways in which practical objectives (notably, here, the creation of an Australian identity ‘other’ to the original British character of the colony) can create apparent contradictions between theory and practice. This also reveals the extent to which shame, in particular, enables a socialisation, rather than a social control process such as the case studies from Pushkareva and Kolonitsky, in particular, also reveal.

Managing justice: issues of authority Our final, and particularly substantive, part on ‘Issues of Authority’, comprising the final seven chapters, constitutes a series of case studies through which, as has already been noted, the ideas suggested in the previous two parts are explored through examinations of the changing patterns and balances between the uses of shame, blame and culpability. This enables a consideration of the importance of these tropes to the management of violence within and by the modern state. We pursue here a broadly chronological approach to the case studies, to enable a comprehension of just how challenging the idea of ‘modernity’ and the state actually is. Issues of culpability and punishment are key to Paul Friedland’s reassessment of conventional historiographical approaches that identify execution as the ultimate in culpability. Conventionally, an eleventh-century

10 Rowbotham et al. ‘legal revolution’, arising out of a codification of law leading to a greater consciousness of a need for crime prevention, had seen an increase in the use of corporal and capital punishment with an overtly spectacular element stressing both blame and culpability but, as Friedland points out, with shame still part of the endgame. Are we mistaken in trying to find an overarching coherence to blaming and culpability mechanisms? Using capital punishment as his marker, Friedland suggests that instead, we should see a collection of practices that are conceivably unrelated and may actually have been contradictory in the historical past. This provides an echo of the points raised in Part II in particular, highlighting the complexity of the processes involved. His case study of France suggests that examining a period of legal history where deterrence was a subordinate consideration offers useful insights that can be used to evaluate the nature and function of punishment in the relative context of shame, blame and culpability, including both community participation and the role of penal laws that stress restorative elements of justice. A plurality of motives emerges where individuals saw executions as opportunities for public penance (which partakes of traditional shaming processes), but also where the public execution process was central to the assertion of the importance of formal legal processes. Formal state punishment went hand-inhand with ‘shaming’ religious ceremonies of ‘self-abasement and compassion’, confirming justice as originally actively restorative, but also underlining the significance of the role of community support via demonstrable participation in the process. The role of the community and the dialogue between state and community justice mechanisms is also central to Kilday’s chapter, which investigates how communities used shame to provide a palette of very gendered responses to forms of deviant behaviour of men and women within the Celtic fringes to Britain – Wales and Scotland. These allowed for unofficial ‘comment’ upon such behaviour that sometimes supplemented and sometimes substituted for official action. Both Kilday on Scotland and Pushkareva on Russia emphasise the gender dimensions to shaming in particular, which (implicitly at least) has also continued to shape ideas of culpability in blaming mechanisms. Kilday argues that early modern Scottish versions of the skimmington ride were solely reserved for women who committed criminal, especially sexual, offences as a tool of unofficial community discipline. Riding the ‘stang’ was not only shameful but also physically painful, thus aiming at punishing the body through such actual suffering. Echoes of this perspective are to be found in nineteenth-century Russia, where community shaming often involved physical hurt to women, thus making the process function as a regular punishment even where a strictly legal criminal offence did not exist. The gender dimension to shaming highlights the widespread nature of the complex patterns and tensions resulting from interaction between state and community powers of action. Russian strategies resonate with those practised by states further to the west in Europe, while also revealing some interesting and unexpected cultural divergences in terms of gendered attitudes to the blaming process in

Introduction

11

particular. Female virtue is, unsurprisingly, shown by Pushkareva to have been a significant factor in community assessments of socially offensive behaviour, but in different locations the community emphasis on what constituted that virtue shifted. This meant that establishing an overarching central state policy for the management of what would come, in modern terms, to be defined as domestic violence was problematic at best. Of particular interest is the highlighting of actions and strategies intended to repair reputation, and revoke sin and shame within communities, rather than to highlight its existence. This resonates with the attitudes identified by Friedland and Bettoni, for instance, as community reactions that materially lessen the power of the state to regulate types of private behaviour. The role of the state and its delegated authorities is thus, in Kilday and Pushkareva, revealed against a background where there were diverging developments in attitudes towards shaming punishments within communities, including a reality that, into the twentieth century, authority did identify some aspects of customary behaviour and the shaming norms it supported as socially useful to it, which is further addressed in Kolonitsky’s chapter on state crime and its management. These gender considerations, as well as the dangers of assuming a linear modernising process, is a significant theme in Mousadakou’s chapter, with its concentration upon examples of shame and culpability viewed through the quintessentially gendered crime of rape, its ‘use’ and perpetration in the Greek Revolution of 1821–1828. In moving considerations of rape outside the normal Western trope, Mousadakou notes that the twin imperatives of violence and honour clashed in debates over the cultural and consequently the legal treatment of rape as an accompaniment to conflict, which again provides an interesting resonance with Bettoni’s comments on fama and those of Tsantiropoulos on issues of honour and blood feud in Crete. Like his, her case study reveals that the key context within which a search for justice was pursued was that of the presentation of conflicting stories, ones where rapes perpetrated by one’s own ‘side’ were glossed over, while those perpetrated by opponents were used to create narratives about shame and dishonour as part of a wider battle to assert cultural as well as legal authority. Thus, the potential for justice in such rapes was inflected by a web of tropes that superficially focused on the rhetorics of honour and truth, but were actually deeply rooted in an established shaming machinery that (wittingly or unwittingly) withheld ‘modern’ standards of individual ‘justice’. Challengingly, implicit within this discourse is the concept that these older traditions provide mechanisms equally as capable as blame and culpability processes of modernising and ‘civilising’ societies. In discussing the tensions between older traditions and ‘modernising’ ideas, Barlova’s discussion of the shame and blame associated with the treatment of poverty in Russia (during the nineteenth century in particular) provides an interesting reflection on the tensions created where state policy challenges established community attitudes about just treatment of individuals and groups within society. In highlighting the endurance of older traditions within

12 Rowbotham et al. ‘modernity’, her discussion on the ‘modernising’ trope involved in the interchange of ideas between Europe and Russia reveals also the significance of differences in perception and comprehension across locational and cultural divides when reading texts produced in one locale within the context of another. This theme had been an important feature of the conference, where discussions on, for instance, the use of Blackstone’s Commentaries by Catherine the Great in her will to ‘modernise’ the Russian legal system had revealed how apparently dissonant such echoes of the same discourse can appear.13 Modern Western discourses associating poverty with individual blame in the context of the management of poor relief were received in Russia from the seventeenth century onwards. Given a tradition (or popular belief therein) of universal philanthropy to any in need, the challenge of discriminating to identify ‘deserving’ objects for poor relief was always likely to be problematic, even shameful for those seeking to implement such new ideas within the context of a Russian state coping with a number of other challenges, including urbanisation and industrialisation. In Russia, the dialogue between ideas of acceptable poverty and those paupers who were a culpable drain and menace to society and the state, thus warranting harsh management, was never satisfactorily resolved because of a stubborn resistance to such blaming mechanisms. Continuing the focus on Russian management of shame and blame and state interventions based on culpability, Boris Kolinitsky explores the crime known in many locales as ‘lese-majesty’. Insulting royal family members in early twentieth- century Russia remained a state crime, one that was approached (for the most part) very seriously by the authorities. Yet Kolonitsky reveals that what was at the heart of this criminality was not what would be considered, in Western Europe, a serious threat to state security. Its Russian perpetrators are here revealed to have been mainly those who, in other locales, would have been considered guilty of socially offensive behaviour, committed drunkenly, carelessly or angrily. The management by local authorities and elites of offenders is shown to be both arbitrary and entrenched, but consequently, as also susceptible to manipulation by all sides for essentially local purposes, enabling a continuation of a subversive shaming tradition. It does reveal a considerable web of state surveillance, but also a high degree of community collusion, as this surveillance enabled individuals to develop strategies to subordinate and threaten other individuals. This involved a conscious use of state resources in an individual or community interest, meaning that this crime and the action taken against miscreants represent especially interesting insights into public opinion and how this escalated into a species of blame culture which continued, quite deliberately, to be used by authorities after 1917. The concluding case study returns attention to the issue of a persistence of more traditional attitudes to shame, clashing with and challenging the dominance of official mechanisms for allocating blame on the basis of identifying relative culpability. Tsantiropoulos’s chapter on the modern contexts of a ‘feuding society’ focuses on a series of revenge-related incidents

Introduction

13

that occurred within the space of a half hour in one Cretan village in 1955. Competing public discourses were produced around this event revealing these clashes. If the outcome was apparently that local community notions of honour, revenge and feud were made to live with a more centralised modern (and metropolitan) world, Tsantiropoulos also shows that, over fifty years later, local comprehensions of what constitutes justice continue to rest upon traditional conceptualisations of shame. These have been given longevity by memory linked to other powerful notions of locality and habitus, and are fiercely antithetical to the notion of judicial ‘closure’. Thus, in noting the divergent intentions of the two competing courtroom narratives (that of the legal process and that of revenge/honour), Tsantiropoulos argues that long periods of modernity have not produced a likelihood of any reconciliation between the two. It is an interesting challenge for the management of crime and violence within the twenty-first century ‘modern’ state, at a time when many states in the Arab world and Mediterranean periphery are emerging from the ‘Arab spring’ and will need, as part of that recreation of their state systems, to address the issues of management of crime and violence.

Concluding reflection This collection offers some theoretical revisits, some new theoretical work and a number of illuminating case studies that take the historico-legal investigation of blame, shame and culpability into some new territories, thematic and locational. While current knowledge of states in Northern and Western Europe is reasonably comprehensive, this collection revisits some of these states in order to open windows on to some less well-known geographical areas, in both the recent and the more remote past. The editors of this volume hope that this range of insights will inject new depth and range to the wider conclusions that scholars currently draw about this engaging and vital topic, and in providing a concluding Bibliography, highlighting key texts available in English that have been used to shape the ideas of the editors and the individual authors, they hope it will also be a stimulus to further work and reflection, which not only brings together ideas and themes such as shame, blame and culpability, but also encourages further interdisciplinary work that transcends traditional locational boundaries such as national and regional divisions.

Notes 1 See, for instance, Pieter Spierenburg, A History of Murder: Personal Violence in Europe from the Middle Ages to the Present, Cambridge: Polity, 2008; T.R. Gurr, Violence in America: The History of Crime, London: Sage, 1989; S. BodyGendrot, Violence in Europe: Historical and Contemporary Perspectives, New York: Springer, 2007; Nicola Lacey, State Punishment: Political Principles and Community Values, London: Routledge, 1994; Mark Jones and Peter Johnstone, History of Criminal Justice, Amsterdam: Elsevier, 2011; B.S. Godfrey, C. Emsley and G. Dunstall, Comparative Histories of Crime, Cullompton: Willan, 2003; John Carter Wood, Violence and Crime in Nineteenth Century England: The Shadow of Our Refinement, Abingdon: Routledge, 2004.

14 Rowbotham et al. 2 S. D’Cruze, E. Avdela and J. Rowbotham (eds), Problems of Crime and Violence in Europe 1750–2000, Lampeter: Mellen, 2010. 3 See, for instance, J.R. Ruff, Violence in Early Modern Europe, 1500–1800, Cambridge: Cambridge University Press, 2001; E. A. Johnson and Eric Monkonnen, The Civilisation of Crime: Violence in Town and Country since the Middle Ages, Urbana and Chicago, IL: University of Illinois Press, 1996. 4 Wood, Violence and Crime. 5 See D’Cruze, Avdela and Rowbotham (eds), Problems of Crime and Violence, especially Introduction. 6 See for example, Alan Doig, State Crime, Cullompton: Willan, 2010; David Faulkner, Crime, State and Citizen: A Field Full of Folk, Winchester: Waterside Press, 2006; Lacey, State Punishment; Don Gibbons, Society, Crime and Criminal Behavior, Upper Saddle River, NJ: Prentice Hall, 1992. 7 See, for example, C. Pierson, The Modern State, London: Routledge, 1996; Wood, Violence and Crime. 8 See, for instance, M. Fitzpatrick, The Enlightenment World, Abingdon: Routledge, 2004; G. McDowell, The Language of Law and the Foundations of American Constitutionalism, Cambridge: Cambridge University Press, 2010. 9 C. Evtuhov and S. Kotkin, The Cultural Gradient: The Transmission of Ideas in Europe 1789–1991, Lanham, MD: Rowman & Littlefield, 2002. 10 Levi Strauss, Natural Rights and History, Chicago, IL: University of Chicago Press, 1953; D. Hedley and Sarah Hutton, Platonism at the Origins of Modernity, New York: Springer, 2008. 11 See, for instance, N. Lacey, ‘In Search of the Responsible Subject: History, Philosophy and the Social Sciences in Criminal Law Theory’, Modern Law Review, 64(3), 2001. 12 On the issue of community reactions to such encroachments, see E.P. Thompson, Customs in Common, Harmondsworth: Penguin, 1991, for the classic perspective that marries a consciousness of law with state action and community perceptions. 13 For further details of the conference, see Conference Report, Crime, Violence and the Modern State II, Crimes and Misdemeanours, 2009, 3(2).

Part I

Theorising shame

1

Vergüenza, vergogne, schande, skam and sram Litigating for shame and dishonour in early modern Europe Marianna Muravyeva In a moderate government, the idea of shame will follow the finger of the law . . .1

Introduction Historians have recently rediscovered shame as a fruitful and rich topic. However, its meaning has hardly ever been conceptualised and used as a tool to build a bigger picture. Shame has been approached from different disciplinary perspectives: psychology, sociology, anthropology, cultural history, criminology and others to create an overarching history of emotions and so reveal its importance for contemporary society.2 There are several sets of questions to be addressed through a reconceptualisation of shame. As an emotion, a type of passion, shame fits with the idea of a dichotomy between passion and reason, thus representing a non-rational ‘social’ emotion, activated both externally and internally for the very specific needs of an individual and a community. Shame has been consistently shown to be relatively successful as a strategy for upholding certain values, such as honour. Assuming that shame was (and is) a pan-human emotion, how universal was its functioning in European societies? Were the concepts of shame and honour interconnected in the same way in different European environments so that we can speak about an emotional and cultural unity within Europe? Or was this interconnection modified according to the specific conditions of each locality, producing the individual shame and guilt cultures as suggested by cultural anthropologists? To answer these questions, this chapter focuses on the analysis of the concepts of shame and honour in different European countries during the period when Europe was trying to discover its identity through reason and enlightenment. This chapter begins by giving an account of the understandings of shame relevant in various disciplines, followed by a brief analysis of the lexicography of ‘shame’. After that, the focus is on shame as a means of punishment in different European penal codes in order to provide the necessary legal background. Finally, it will explore internal and external connections between shame and honour through analysis of the public litigation and associated penances to be found in various European jurisdictions.

18 Marianna Muravyeva

What is shame? Ideal definitions versus material realities Aristotle called shame a ‘phantasia’ – imagination about a loss of reputation.3 The causes of shame were directly related to a person’s position in any given social situation and to the value placed on that position. Shame was enabled in certain circumstances: there could be no shame where there was no reputation to lose, where the loss of reputation was not recognised, where its loss was merely imagined, or where its loss had no repercussions. Shame activated the close interconnection between a variety of social institutions: where one’s reputation really mattered, where the opinions of others were valued, where social rank was effective, where credit could be given and debts owed, where honour could be realised or lost, where there were fragile bonds of intimacy, and where social prestige could be measured according to one’s institutional access to the truth.4 So Aristotle originally saw shame as socially constructed and dependent on the opinion of others. Aristotle also connected shame with reputation or honour, supposing that feeling shame was possible only in a situation where one’s reputation might be at stake. During the Enlightenment, Immanuel Kant offered the same connection between honour and shame but in the very different light of regarding law, duty and responsibility as the new markers of human morality. Kant approved of the love of honour, seeing it as an anticipation of moral concern that should ultimately be assimilated into a properly moral conception of self-respect. Desire for honour, in Kant’s point of view, was a longing for the actual esteem of others. In practice, that meant acting in ways that ensured an avoidance of meriting the scorn of others, regardless of their actual opinions.5 In the Doctrine of Right, however, Kant claimed that some killings, those committed to avoid dishonour or disgrace, should be punished less harshly than other kinds of homicide. He suggested that people have something amounting to a right to uphold their reputation and social standing. Kant argued that because the state could not be authorised to defend our honour, individuals always retain some sort of authority to do this on their own initiative and judgement.6 Kant used two explicit examples – infanticide and killing in a duel – of how this right to act in defence of honour could be exercised to avoid shame and why the punishment should consequently be lesser than in other cases involving killing. Thus, in the case of an unmarried mother killing her newborn child, Kant argued that, a priori, the authorities (the state) could not punish an act that was the product of a situation which was itself outside its own law. In other words, since an illegitimate child was born outside the law, it could not as such be protected by that law. It was possible for the evidence of shame to be destroyed in the shape of the child, yet the shame of the mother could not be taken away or cleansed by any law, which made infanticide a sort of compulsive killing.7 Kant here seemed to claim that the mother had a right to preserve her reputation for chastity, and that the mere existence of her illegitimate child infringed that right. The mother could not call upon the state to remove or conceal her child

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as such a move would be a public acknowledgement of the child’s reality, producing the consummation of the very disgrace that she had desperately sought to avoid.8 At the end of the nineteenth century Friedrich Nietzsche identified Kant with what came to be called ‘guilt cultures’.9 In the light of Kant’s treatment of honour it is difficult to assess his ideas as typical of guilt cultures, which instead makes Kantian philosophy a transitional mode of knowledge. Kant undertook the analysis of shame and honour from a rational point of view, the results of which might have sounded unpleasant. It is Kantian treatment of shame that undermined the strict division between ‘guilt’ and ‘shame’ cultures and ultimately brings us to reassess their connections historically. The division between shame and guilt cultures are well known from anthropological work. According to this distinction, a guilt culture construes morality along the lines of a legal system, emphasising ideas of authority, obligation and responsibility within a modern autonomous self. Shame cultures, by contrast, are supposed to be fundamentally concerned with the nature of a person’s entire character, assessed with respect to the social roles that he or she occupies. Margaret Mead argued for the existence of cultures marked by an absence of the internalisation where individual members are controlled by fear of being shamed, but where (as long as no one knows of one’s misdeeds) individuals can and do dismiss misbehaviour from their minds. Members of a guilt culture, on the other hand, are compelled by their conscience to repent and atone for sin. Therefore, socialisation and modernisation are said to be at the root of this difference.10 The Mediterranean basin, the Japanese, the Bedouins of Egypt and the Russians of Muscovy were all classified as shame cultures, while modern Western European nations were labelled guilt ones.11 However, both cultures seem to develop parallel to each other, or, to put it differently, shame and guilt developed in relation to each other and other concepts such as honour, blame and culpability. Thus, John Carroll defined five stages of cultural evolution in England based on attitudes to guilt: the era of naive culture (that of early medieval England: no guilt); that of superficial guilt (1200–1530: medieval Catholicism); that of rampant, uncultured guilt (1530–1600); that of parricidal guilt (1600–60); and finally civilised guilt (1660–1800).12 Taking into consideration the development of shaming in England, especially during the last three stages of guilt, it is obvious here that both concepts were well articulated and functioned together, enabling English society to cope with various political, social and economic issues. Historical approaches to shame are originally based on the works of Elias and Foucault. Despite their different approaches, both saw the late early modern period (stretching into the eighteenth century) as crucial for the internalisation of shame as a result of the emerging conscious self. By creating the internal spaces of the soul, shame became the self-controlled internal emotion that eroded and diminished its public presence. Through it, Elias grounded the change in manners and thresholds of sensibility, while Foucault explained the changes in discipline and control.13 Indeed, shame was

20 Marianna Muravyeva particularly visible in state and communal penal policies. Shame punishments, exercised on different levels, appealed to external control by either authorities or communities. It was the application of shame punishments that marked more or less progressive societies (according to Foucault) and which were eroded by Enlightenment attitudes to penology and the coming spread of incarceration as a substitute to physical and public punishments.14 The recent renaissance of shame punishments, through discussions by criminologists around the positive and negative aspects of shame, suggest that shaming was a stable form of community management, even in the situation when it was not supported by the omnipotent state.15 Authors such as John Braithwaite have argued that using appropriate ‘good’ shaming might help in the reintegration of criminals into society. A distinction is made between shaming (good) and stigmatisation (bad), taking shame and humiliation as core emotions. The reasoning advanced by Braithwaite for the effectiveness of shaming was that sanctions imposed by friends and family members (including the manipulation of shame) have more effect on the offender than sanctions imposed by a remote legal authority.16 Therefore, shaming has a better deterrent effect than other forms of punishments, especially for young offenders. What is shame, then? If it is an important concept, have the contents been consistent over time? How much does early modern shame differ from current understanding of what amounts to shame? Did understanding of shame in various European societies differ significantly? The question of definition contributes to the methodological discussion of the extent to which emotions are similar or different across cultures and times.17 A modern definition, from the Oxford English Dictionary, defines shame as a ‘painful emotion’ that follows the ‘consciousness of something dishonouring, ridiculous, or indecorous in one’s own conduct or circumstances . . ., or being in a situation which offends one’s sense of modesty or decency’.18 The analysis of seventeenthand eighteenth-century dictionaries gave almost identical definitions: Shame sometimes means that uneasy consciousness of self-condemnation that arises in the mind of a person upon or after the commission of any unwarrantable act; also disgrace or public degrading or punishment etc, sometimes it means the uncovering and exposing the private parts of the body to public view, by way of ridicule, scorn, punishment and contempt.19 Samuel Johnson in his Dictionary called shame a ‘passion’, felt when reputation was supposed to be lost and which was sometimes expressed by blushes.20 French language used several words for shame – la vergogne and la honte (and additionally ignominia, pudor, verecundia). The Dictionnaire de l’Académie française (1694) called la honte a ‘trouble of mind’, produced by the image of disgrace which might occur.21 Russian words sram and styd meant a disgraceful state, dishonour together with a substitute term for genitalia.22 However, shame, as such, was a passive word meaning a feeling of disgrace,

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fear of dishonour, while active shaming belonged within words such as infamy (as in peines infamantes in French) and dishonour (as beschest’e and shel’movanie in Russian or Ehrenstrafen in German). Each of them had a clear legal connotation and tradition of legal use deriving from the Roman law, which is discussed by Antonella Bettoni in her chapter. To understand the connection between shame and dishonour, an examination is necessary of systems of official infamy and dishonouring punishments in early modern Europe.

Shame and power Shame has been exploited by penal systems since ancient times in both secular and ecclesiastical domains of power. Closely connected with certain value systems where reputation/honour were understood as mechanisms of appropriate behaviour, shame remained an important identity element in the community. Infamy and dishonouring punishments aimed at the honour/ reputation of a person; damage or loss of honour/reputation broke regular social ties within the community and demanded restoration. However, shameful marks produced by branding or whipping helped the authorities and the community to locate a shamed person and assign an appropriate place for them. It has been argued that shame penalties often ended up targeting the wrong people because they failed to fulfil the deterrent function of punishment; they may have deterred behaviour that was not bad, but simply unpopular, while failing to deter far worse behaviour.23 Nussbaum and others have claimed that shaming penalties very quickly ended up being used to stigmatise whatever group happened to be unpopular at the time: sexual minorities, Christians, and, in the era of Christian hegemony, heretics.24 Shame penalties were applicable to a wide range of sexual misconduct, including sodomitical offences in (mostly) Western Europe. The punishments for sodomy included whipping, branding and the pillory or stocks, and were generally administered in front of an assembled crowd, relying wholly or partially on notions of shame as a mode of both punishment and deterrence. Targeting certain sexual minorities represented a dilemma for the European legal systems. Sodomy was a crime which, together with certain other criminal practices involving moral judgements (such as adultery, fornication, theft, fraud, etc.), was punished in a specific way that required the participation of the local community. However, the strategy used for the public shaming of sexual misconduct was quite ambivalent per se, as publicity given to nonconventional sexualities such as sodomy (a crime ‘not to be named’) made them visible, ensuring a higher level of public awareness of their very existence. Shaming penalties had acquired elaborate mechanisms by the eighteenth century and were included in the majority of European penal codes. Their purpose was twofold: to discourage the perpetrator from straying again, and to alert the community to the presence of a potential offender in its midst. They also made the community complicit in the working of the law and the state,

22 Marianna Muravyeva displaying community consent to a wide range of social and moral boundaries, and making community members less likely to become offenders themselves.25 These punishments typically included the public display of both a criminal and his actions, and targeted not only the soul, but the physical and social body of an offender. As Anne-Marie Kilday and Natalia Pushkareva show in their chapters on the shaming of women in Scotland and Russia, these punishments inflicted a great deal of physical and mental pain in addition to doing profound damage to their reputation/honour. Penalties always followed certain rituals, being administered in the same model fashion.26 This reflected the necessity of communal participation in a regular and organised manner, with ritual providing a framework for certain activities viewed as effective and restorative. In early modern Europe, shaming existed in two different forms of official punishments: as a goal of punishment (shaming per se – to shame an offender for the certain inappropriate criminal act) and as a way of punishment (dishonouring – to punish the offender in a certain, non-honourable way, by beheading, for example). In the former case, the punishment could be administered by both the community (without any legal sanction) and by the authorities and the process allowed an offender to remain in his or her community. In the latter, punishment was administered only by the authorities and deprived an offender of any chances to return to his or her community (whether by execution or by banishment). Moreover, shaming often functioned as an additional penalty to other capital or non-capital punishments. German lawyers clearly followed the division described above, distinguishing between Schandstrafe (shaming penalties) and Ehrenstrafe (dishonouring penalties). Schandstrafe were viewed as a type of civil discipline carried out by a public servant.27 Varying from city to city, they included penalties such as shaving the head, slashing clothing, house arrest, being kept in a ‘fool’s cage’, standing in front of the church or in the market square, labelled with a reference to their offence, carrying the ‘sinner’s stone’ (Lasterstein) or a wooden (Geige) or iron (Halseisen) collar around the neck, or wearing a ring with bells on the head (Springer).28 Ehrenstrafe included whipping, being put in the pillory, branding and execution in a dishonourable fashion (hanging by the neck, breaking on the wheel, hanging upside down by one foot, etc.). These penalties were imposed by courts and carried out by a state official, usually the executioner. French and Russian penal laws had slightly different conceptualisations of what were labelled shame or infamy punishments. French lawyers (especially Daniel Jousse) distinguished three categories of punishments: those affecting a convict’s body or the liberty of the convict were afflictifs; those affecting a convict’s honour were infamants; and those involving property were pécuniaires. Infamy punishments included parading culprits through the streets in a straw hat, official blaming, different types of fines (in addition to other infamy punishment); deprivation of office, of salary, of privileges; also public expulsion, with belongings, from the home; and, finally, public destruction of writings (tearing or burning) by the executioner.29 Pastoret categorised the types

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of deprivation as a form of civil death, which included public admonitions and prohibition from certain places as official blaming, but he added the public announcement of the criminal details, the pillory and iron collar together with punishment by effigie, whipping, and punishments applied to the corpse and the possession of the convicted.30 Russian law made a distinction between light and heavy dishonourable punishments. The first category included the deprivation of rank and salary, or banishment from the state. The second, heavy dishonour, was called shel’movanie (from the Polish szelma and originally from the German schelm). This included the public naming of the criminal as schelm, nailing a plate with the criminal’s name to the gallows and breaking his sword. Shel’movanie involved exclusion from the community of good and faithful/loyal people and established the criminal’s debarring from participation in any legal transactions (as a witness, a plaintiff or a defendant) or in any type of government role.31 All convicts who were publicly punished automatically became shel’movannye, or outcasts from society. Public punishments usually included torgovaia kazn’ (market execution) and politicheskaia smert’ (political death). The first case included public scourging on the scaffold. The second category is particularly illuminating. Political death was inflicted for capital offences but only imitated the death penalty: on the scaffold, the executioner would announce the political death of the convict, but instead of actually executing him/her, would scourge him/her severely, after which the convict would be exiled to Siberia (or some other remote place) forever.32 Thus the Russian strategy, especially in the seventeenth and eighteenth centuries, was to substitute for actual executions a metaphorical or symbolic death penalty for capital offences (including treason or lese-majesty, as well as witchcraft, robbery and rape) where the convicted man or woman was pronounced as dead to their own society, but actually condemned to live in exile. Various statistics from early modern Europe give a relatively clear picture of the categories of offence that warranted shaming punishments. Jörg Wettlaufer’s analysis of substantial data, mainly from Germany and France, established that shaming followed three broad categories of offences: scolding and blasphemy (28 per cent), adultery and sexual misconduct (20 per cent), and theft (17 per cent).33 In England and Wales, the records from the Old Bailey between 1674 and 1800 suggest that theft was the leading group of offences under its jurisdiction punished by whipping or branding, together with libel and sexual misconduct (keeping a brothel, prostitution etc.).34 Fraud (25.2 per cent), together with moral offences (24.7 per cent) and theft (12 per cent), were three leading groups of offences punished by shaming in eighteenth-century Massachusetts.35 It is not a coincidence that it was these offences that invoked shaming and dishonouring punishments. Sexual misconduct, scolding and other oral insults (either of a person or God), theft and fraud all broke the internal community systems of honourable behaviour. They damaged collective honour (because the mala fama could be then inflicted on the community in general) and as such demanded dishonour as a reparation for this damage.

24 Marianna Muravyeva

Restoring honour: litigations over dishonour Shaming punishments represented the external effects of the operation of shame within the community. Litigation over dishonour charges portrays a complementary picture of the importance of the shaming process. The legal protection afforded to honour suggested that it was an important social and political element in society. Additionally, honour was a crucial aspect of personal identity, which placed it among other important personal ‘goods’, as property to be fiercely protected. Provisions for litigation over dishonour are known in almost all European penal laws as well as provision for legal protection from types of insults, defamation, slander and certain types of physical assault. Thus, in England (where honour has been presumed to have been subsumed into the concept of individual reputation in the seventeenth and eighteenth centuries) suits for defamation from all sorts of people dramatically increased in numbers during the second half of the sixteenth century and into the seventeenth century, just as they did in France, Italy, Germany and Muscovy.36 Every person (even serfs) enjoyed the possession of honour as a personal token of their moral and social standing in the community. What remains controversial about the perception by many contemporary social researchers that shame is a social and cultural construct shaping both personal identity and place in the community is its universality or specificity. Anthropologists working on the Mediterranean have long argued that there is a peculiarly Mediterranean notion of honour, different from other European countries.37 Most noteworthy here has been the central position of women in their social value systems. Women held the key to a family’s honour because of their sexual power; promiscuity could disgrace families, whereas modesty reflected well upon the household.38 However, Nancy Kollmann has classified seventeenth-century Muscovy society as a type of ‘shame and honour’ Mediterranean society.39 It is not surprising that Muscovy had much in common with Greece: most of its laws and didactic literature was derived from Byzantium, to the extent that the Legal Code of 1649 (Sobornoe Ulozhenie) recognised the compendium of Greek laws (the Kormchaia book) as its official source.40 However, the Northern Somalis and the Bedouins also demonstrate striking similarities with Mediterranean regions.41 This suggests that honour as a concept was (and is) universal to humanity, but that its expressions differ over time and space. Additionally, it can be argued that the regular stress laid upon female chastity as the main component in female demonstrations of their honour, along with the general identification of women as the key identifiers of social honour, create the potential for additional research agendas, such as whether women could enjoy natural honour unconnected with their sexuality. Across Europe, late eighteenth- and nineteenth-century lawyers divided honour into natural and civil components. Natural honour, or bona fama, was viewed as an image of an individual being morally virtuous and faultless, and it was ascribed to the individual by natural law. Civil honour, or dignitas civilis,

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expressed a legal concept of appropriate (expected) behaviour consistent with the customs and norms of society.42 Crimes against ‘honour’ included several aspects, all of which were held to damage or deprive another person of his/her honour. They included both verbal and physical actions: slander, defamation, libel, plus exposing ‘shameful’ parts of the body with the purpose to insult somebody, making insulting gestures, and, ultimately, certain types of physical assault. For verbal insults to amount to an attack on honour required several contextualising conditions. Under German law, these included the humiliation of a person in the eyes of others through spreading rumours that were damaging his/her reputation or dignity; breaking a prohibition on spreading insulting or humiliating information about a particular person; the false character of such insulting or humiliating information.43 This last principle was very significant for any accusations of dishonouring an individual, as the principle of exceptio veritatis was often used by the defence to prove the validity of insults. Thus, in the Russian Legal Code of 1649, it was stated that: If someone curses someone else, calling him a whore’s son [vybliadkom], and that person whom he called a whore’s son proceeds to petition the sovereign against him about the dishonour; and it is conclusively established about that plaintiff in a trial that he is not a whore’s son: after investigation, order him to exact double the compensation for his dishonour from that person who called him a whore’s son without any mercy. If [witnesses] testify in an investigation about that petitioner that he is in fact a whore’s son, that he was begotten by a concubine before [the father had] a legal wife, or while [he had] a legal wife, or after [he had] a legal wife: reject such whores’ sons [in their claims for] compensation for dishonour. Do not consider [him one of] the legal children of that person who begat him by a concubine and do not give him the service landholdings and hereditary estates of that person who begat him illegally. If that person who begat that whore’s son by a concubine marries that concubine: he still shall not consider that whore’s son [one of] the legal children. That person shall not give his service landholdings and hereditary estates to his whore’s son because he illegally begat that whore’s son by his concubine prior to the marriage.44 This article is significant for various reasons. It clearly stated the validity of exceptio veritatis and the importance of actual honourable behaviour: one could not lose honour if he or she had jeopardised its possession by dishonourable actions. It proves that sexual reputation was important not only for women, but also for men; this whole article was devoted to men. It discussed the situation with illegitimate births (showing concern with the legitimacy of nobles’ children and hereditary rights) and recognised that Russian nobles had

26 Marianna Muravyeva official concubines (a controversial question in the literature). Finally, it legally denied any compensation for dishonouring comments that rested in actual illegitimacy. This, however, did not mean that an illegitimate child could not file a complaint about dishonour, if there were other verbal or physical insults. His/her illegitimate status did not deprive them of a right to defend themselves against other slanders and forms of defamation. It also provides evidence that every person in society originally possessed honour that was dependent on personal actions rather than social standing. However, the Consitutio Criminalis Carolina in Art. 110 defined punishment for liber famosus even if it was proved that the humiliating information were true.45 While Clarus, who was very influential in Germany, accepted exceptio veritas, Carpzov insisted that where the objective behind the crime was to make an insult damaging to another person’s honour, their actions could not be justified by exceptio veritas.46 German lawyers also added the animus injuriandi principle, meaning that such an insult had to be premeditated, that is, that an insult expressed a conscious intent to humiliate and damage a person’s honour.47 This principle caused difficulties in the everyday practice of courts: it was difficult to distinguish whether someone called another person ‘a whore’s son’ in a fit of anger or was genuinely questioning the legitimacy of a person’s birth (which was a perennially difficult concept to prove). English law was explicit in treating slander and libel as verbal or written insult of a severity to amount to actual damage to an individual. The requirement to gain compensation for ‘dishonour’ needed proof that damage was in fact done, which prompted a wide usage of exceptio veritas.48 Russian law could well be compared with English law here as a plaintiff had to prove that damage took place de facto. The Legal Code of 1649 allocated 73 articles (Chapter X, art. 27–100) simply to the different types of compensation available for dishonour. These articles listed the different social groups who were assigned a specific compensation as well as certain individuals (for example, the abbot, the cellarer and the treasurer of the Troitskii-Sergiev monastery) with specific personal compensations. Compensation could include both monetary and physical penalties (whipping, imprisonment etc.). Compensation for wives was set down at double their husband’s income, and for daughters it was quadruple their father’s income (X:92). Therefore, the legal protection of honour depended on the gender, as well as the social and professional status of an individual. However, the 1649 Legal Code was not specific about what constituted ‘dishonour’ (beschest’e). The list of physical injuries protected by dishonour charges included ‘painful violation’ (muchitel’noe narugatel’stvo), chopping off a leg or an arm, cutting off the nose, an ear or lips, putting out somebody’s eyes (XXII:10) or whipping of the body (XXII:11). Compensation for each injury was 50 rubles (a large sum at this period). The list of oral insults was not detailed with the exception of Article 280 (calling somebody a whore’s son). Other articles simply used a ‘bad words’ formula (X:105). This silence is compensated by rich legal data, which suggests that every insulting word had

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the potential to produce a suit for dishonour. In practice, the most commonly visible terms producing such an outcome were use of the word ‘thief’ and insults against social status (calling a noble person a servant).49 Sexual slander played an important role in dishonour, but it was not simply applied to women. In one interesting document from 1633, a suit brought by an officer, Andriushka Bermatskoi, complained that Colonel Krasnoi accused him of all types of ‘idle behaviour’ (bezdel’e), including setting up a bathhouse, which allegedly started a fire in the neighbourhood. Bermatsoi explained these false accusations by citing an argument (nedruzhba) over a female serf who belonged to Bermatskoi, returned to him in a legal decision in the courts. In his counterclaim, the colonel accused Bermatskoi of setting up a bathhouse to lie with the woman (valialsia), who previously accused Bermatskoi of sexual violence.50 Male sexual conduct was the core of this dispute, with both men seeking to prove that they had not had sexual relations with the woman, since this would have damaged their honour. Most European laws dealing with what amounted to dishonour commonly worked to protect a person’s reputation from damage. Such damage contained the potential for being shamed in the eyes of their community as a result of the exposure to dishonour, either false or true. That exposure, if not legally limited, could lead to community shaming, a quasi-legal ritual, divorced from official penal law. The question of shame as a motivation for such litigations is more controversial. Did shame as an emotion provide a sufficiently strong motive for an individual to start litigation for dishonour? In other words, did insulted people feel genuine shame when they were assaulted, with words or physically? It can be safely assumed that those people who committed what they were accused of probably felt shamed simply from the exposure. Those people who were dishonoured by being falsely accused, however, would have felt anger, indignation or other sufficiently powerful emotions that prompted them to go to court. Physical injuries represent a different case. To have one’s ears, nose or lips mutilated produced a visible injury and made a person a cripple in a society where such physical mutilations were associated with those who were suspected of having an evil nature and performing evil deeds. In this context, sexual assault on a woman was considered to be against her honour. This very specific gender component varied in different societies, especially when it came to rape of a prostitute. Thus, according to the Consitutio Criminalis Carolina, a prostitute could not be raped (Art. 119 referred to ‘chaste’ women) as she did not possess that specific female honour which manifested itself as chastity. However, the Russian Military Legal Code of 1716 (in the commentary to Article 167) explicitly stated that a prostitute could be raped and that the judge should investigate the case while not taking into account the issue of the reputation of the victim.51 Russian law also allowed a dishonour compensation for rape as for any other physical injury, treating it as ‘painful violation’. To conclude from this that Russian society was not concerned with female chastity and did not value it would be inaccurate. Here shame became a universal emotion experienced by women as their intimate sphere was violated and this was exposed to the public gaze.

28 Marianna Muravyeva

Conclusion A group of scholars from the University of Amsterdam conducted a test study of how honour was understood in what they called honour-based and individualistic cultures, taking the Netherlands and Spain as case studies. They found that the prototype of shame in both countries consisted of transgressing social rules, resulting in negative feelings and withdrawal. However, people’s experiences of shame were shaped by the main focus of their culture: by honour in Spain and by individual autonomy in the Netherlands.52 Another group of scholars coined the term ‘cultural scripts’ to allow the trans-historical study of emotions. They have suggested that there is a need to question the match between researchers’ own normative scripts for emotion (shame in our case) and those of the culture whose effects they expose. In other words, to understand shame as an emotion in a given time and space, we need to identify the value system that nourished it and provided it with internal and external modes of expression. Early modern European society was based on honour as its ultimate social value. The concept of honour was coined not only by customary practices, but also by Christian thought, and included various, some of them gender-specific components. The loss of honour led to social death, the gain of honour to social elevation. Honour could be given and taken. It could be damaged, compensated and restored. The manipulations of honour by authorities and by communities provided a flexible and efficient system of social control, in which an honour network was much more effective in looking after individuals than the penal state machinery. The authorities could sanction dishonour based on a legal verdict, creating an effective restraining tool on individual conduct – that of shaming via various types of shaming penalties and dishonouring punishments. In cases where the dishonour came unsanctioned from a private individual acting on his or her own, the threat of the consequent shame from such unofficial actions had the power to initiate official action. This generally came in the shape of litigation where authorities, again, decided whether honour should be restored or confirmed its removal. By awarding a compensation for dishonour, authorities reinforced this value system. They could also shift the burden of shame to those initiating insult, making them responsible for damaging the values and threatening the social foundations and stability of a community. Thus, shame became a crucial element of social control and restraint whose deterrent effect was viewed positively and made consistent with the given system of values.

Notes 1 William Eden, Principles of Penal Law, London: B. White and T. Cadell, 1771, p.49. 2 See the classic article by Peter Burke, ‘Is there a Cultural History of the Emotions?’, in Penelope Gouk and Hellen Hills (eds), Representing Emotions, Aldershot: Ashgate, 2005, pp.35–48. See also Susan J. Matt, ‘Current Emotion Research in History; Or, Doing History from Inside Out’, Emotion Revue, 3, 2011, 117–24;

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18 19 20

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Geil Kern Paster, Katherine Rowe, and Mary Floyd-Wilson (eds), Reading the Early Modern Passions: Essays in the Cultural History of Emotions, Philadelphia, PA: University of Pennsylvania Press, 2004, pp.1–20. See Aristotle, Rhetorics, 2.6.1348a22–36. Available at: http://rhetoric.eserver.org/ aristotle/rhet2–6.html (accessed 6 December 2011). On the analysis of Aristotle’s attitude to emotions, see Daniel M. Gross, The Secret History of Emotions: From Aristotle’s ‘Rhetoric’ to Modern Brain Science, Chicago, IL: University of Chicago Press, 2006, especially pp.40–3; Juha Sihvola and Troels Engberg-Pedersen (eds), The Emotions in Hellenic Philosophy, Dordrecht: Kluwer Academic Publishers, 1998, especially pp.1–21. David Sussman, ‘Shame and Punishment in Kant’s Doctrine of Right’, The Philosophical Quarterly, 58, 2008, 300–1. Immanuel Kant, The Metaphysics of Morals, Cambridge: Cambridge University Press, 1996, pp.104–6. Ibid., pp.108–9. Sussman, ‘Shame and Punishment’, p.311. Friedrich Nietzsche, On the Genealogy of Morals, Indianapolis, IN: Hackett Publishing Company, 1998, pp.35–66. D.L. Cairns, Aidos: The Psychology and Ethics of Honour and Shame in Ancient Greek Literature, Oxford: Clarendon Press, 1993, pp.27–47. See, for instance, Millie R. Creighton, ‘Revisiting Shame and Guilt Cultures’, Ethos, 8, 1990, 279–307; Nancy Kollmann, By Honor Bound: State and Society in Early Modern Russia, Ithaca, NY: Cornell University Press, 1999; David Nash and Anne-Marie Kilday, Cultures of Shame: Exploring Crime and Morality in Britain, 1600–1900, Basingstoke: Palgrave, 2010, pp.1–25. John Carroll, ‘The Role of Guilt in the Formation of Modern Society: England 1350–1800’, The British Journal of Sociology, 32, 1981, 459–503. Norbert Elias, The Civilising Process, Oxford: Blackwell, 2004, pp.414–21; Michel Foucault, Discipline and Punish: The Birth of the Prison, New York: Vintage Books, 1979. For critiques of both, see Nash and Kilday, Cultures of Shame, pp.1–25. See, for instance, Adam J. Hirsch, The Rise of the Penitentiary: Prisons and Punishment in Early America, New Haven, CT: Yale University Press, 1992, pp.3–68. See Aaron S. Book, ‘Shame in You: An Analysis of Modern Shame Punishment as an Alternative to Incarceration’, William and Mary Law Review, 40, 1999, 653–86, especially pp.658–60. John Braithwaite, Crime, Shame and Reintegration, Cambridge: Cambridge University Press, 1989, pp.4–73; Eliza Ahmed, Nathan Harris, John Braithwaite and Valerie Braithwaite (eds), Shame Management Through Reintegration, Cambridge: Cambridge University Press, 2001, pp.69–83; Martha Nussbaum, Hiding from Humanity: Disgust, Shame and the Law, Princeton, NJ: Princeton University Press, 2004, pp.203–23. Cross-cultural studies of emotion have provided evidence for both similarities and differences between cultures: P. Ekman, ‘An Argument for Basic Emotions’, Cognition and Emotion, 6, 1992, 169–201; R. Harré, The Social Construction of Emotions, Oxford: Basil Blackwell, 1986; C. Lutz and L. Abu-Lughod, Language and the Politics of Emotions, Cambridge: Cambridge University Press, 1990. Oxford English Dictionary. Available at: www.oed.com/ (accessed 12 December 2011). For example, Thomas Dyche and William Pardon, A New General English Dictionary; to which is Prefixed a Compendious English Grammar, London: Catherine and Richard Ware, 1760. Samuel Johnson, A Dictionary of the English Language: in which the Words are Deduced from their Originals, and Illustrated in their Different Significations by Examples from the Best Writers. To which are Prefixed a History of the Language, and an English Grammar, London: Longman, Hurst, Rees, Orme, and Brown, 1805, vol. 4.

30 Marianna Muravyeva 21 Dictionnaire de L’Académie française, Paris: Coignard, 1694, vol. 1. For other French dictionaries with similar definitions, see Jean-François Féraud, Dictionaire critique de la langue française, Marseille: Jean Mossy, 1787, vol. 2; Jean Nicot, Le Thresor de la langue francoyse, Paris: David Douceur, 1606. 22 Slovar’ Akademii Rossiiskoi po azbuchnomu poriadku raspolozhennyi, St Petersburg: pri Imperatorskoi Akademii Nauk, 1822, vol. 6. See also Slovar’ russkogo iazyka XI–XVII vv, Moscow: Nauka, 2006, vol. 27. 23 Eric A. Posner, Law and Social Norms, Cambridge, MA: Harvard University Press, 2000. 24 Nussbaum, Hiding from Humanity, pp.234–35; Mark Gustafson, ‘Inscripta in fronte: Penal Tattooing in Late Antiquity’, Classical Antiquity, 16, 1997, 79–105; Christopher P. Jones, ‘Stigma: Tattooing and Branding in Graeco-Roman Antiquity’, Journal of Roman Studies, 77, 1987, 139–55. 25 Jody Greene, ‘Public Secrets: Sodomy and the Pillory in the Eighteenth Century and Beyond’, Eighteenth Century, Theory and Interpretation, 44, 2003, 203–32, p.207. 26 The ritualistic nature of early modern punishments is fairly well researched. See Paul Friedland in this volume; also Pascal Bastien, L’exécution publique à Paris au XVIIIe siècle: Une histoire des rituels judiciaries, Seyssel: Champ Vallon, 2006; Norval Morris and David J. Rothman, The Oxford History of Prison: The Practice of Punishment in Western Society, Oxford: Oxford University Press, 1998, pp.44–58. 27 Richard van Dülmen, Theater des Schreckens: Gerichtspraxis und Strafrituale in der frühen Neuzeit, Seiten: Verlag C.H. Beck, 1988, pp.68–71. 28 Ibid., pp.64–80. See also Satu Lidman, ‘The Importance of Honour: Differences based on Having or Losing Honour in Early Modern German Society and Law’, in Eva Johanna Holmberg and Tom Linkinen (eds), Practices of Inclusion and Exclusion in Premodern Culture, Turku: Turun yliopisto, 2005, pp.201–28. 29 Daniel Jousse, Traité de la justice criminelle de France, Paris: Debure, 1771, vol. 1, pp.68–76. 30 Claude-Emmanuel de Pastoret, De loix pénales, Paris: Buisson, 1790, vol. 1, pp.121–40. 31 ‘Kratkoe izobrzhenie protsessov ili Sudebnykh tiazheb’, in A.G. Man’kov (ed.), Zakonodatel’stvo perioda stanovleniia absolutisma, Moscow: Iuridicheskaia literatura, 1986, pp.424–5. 32 On political death in this period, see the following acts and ordinances: Polnoe sobranie zakonov Rossiiskoi Imperii [PSZ] (St Petersburg: v tipographii II otdeleniia, 1830), III, no. 1349, 1362, 1395, 1722; IV, 1893; VII, 4343 art. 6, 4431, 4460; X, 7882; XI, 8056; XII, 8944, 9312; XIII, 9871, 9875, 9879, 9911, 10086, 10087, 10110, 10113; XIX, 13545; XXII, 16566; XXIII, 16910. On market death, see Richard Hellie (ed. and trans.), The Muscovite Law Code (Ulozhenie) of 1649, Part 1: Text and Translation, Los Angeles, CA: Charles Schlacks, Jr, 1988, I, 3, 5; II, 13; VII, 28; X, 5, 8,12, 31, 129, 170, 171, 186, 188; XI, 27; XVII, 34, 36; XXI, 55, 56, 59; XXII, 11, 12; XXV, 1, 3, 4, 9, 15, 16, 19, 123; PSZ, I, 441 art. 22; II, 733, 1110, 1192; III, 1693; VI, 3760; VIII, 5528 art. 4; IX, 6335 art. 7, 6506; XI, 8601; XIV, 10305, 10306, 10687; XX, 14275; XXII, 16022. 33 Jörg Wettlaufer, The Evolution of Shame as a Prosocial Emotion: A CrossCultural Study on Conflict and Cooperation in Historical Sciences (working paper, 2008); and database, available at: www.shamestudies.de (accessed 12 December 2011). 34 Online Proceedings of the Old Bailey, 1674–1913. Available at: www.oldbailey online.org/index.jsp (accessed 13 December 2011). 35 Linda Kealey, ‘Pattern of Punishment: Massachusetts in the Eighteenth Century’, American Journal of Legal History, 30, 1986, p.173 (Table 1).

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36 There is a substantial literature on dishonour litigation and concepts of honour; for example, J. Ina Habermann, Staging Slander and Gender in Early Modern England, Aldershot: Ashgate, 2003; Martin Ingram, Church Court, Sex and Marriage in England, 1570–1640, Cambridge: Cambridge University Press, 1987; M. Lindsay Kaplan, The Culture of Slander in Early Modern England, Cambridge: Cambridge University Press, 1997; A. Sharpe, Defamation and Sexual Slander in Early Modern England: The Church Courts at York, Reston, VA: Saint Anthony Publishing, 1980. For France, see James R. Farr, Hands of Honour: Artisans and Their World in Dijon, 1550–1650, Ithaca, NY: Cornell University Press, 1988; David Garrioch, ‘Verbal Insults in Eighteenth-Century Paris’, in Peter Burke and Roy Porter (eds), The Social History of Language, Cambridge: Cambridge University Press, 1987, pp.104–19. For Italy, see Peter Burke, The Historical Anthropology of Early Modern Italy, Cambridge: Cambridge University Press, 1987; Thomas V. Cohen, ‘The Lay Liturgy of Affront in Sixteenth-Century Italy’, Journal of Social History, 25, 1991, 857–77. For Germany, see David Martin Luebke, ‘Serfdom and Honour in Eighteenth-Century Germany’, Social History, 18, 1993, 143–61. For Spain, see Renato Barahona, Sex Crimes, Honour, and the Law in Early Modern Spain: Vizcaya, 1528–1735, Toronto: University of Toronto Press, 2003. 37 J. Pitt-Rivers, The Fate of Shechem, or, The Politics of Sex: Essays in the Anthropology of the Mediterranean, Cambridge: Cambridge University Press, 1977, p. xi; David D. Gilmore (ed.), Honour and Shame and the Unity of the Mediterranean, American Anthropological Association, 1987, pp.2–21. 38 See, for example, Katerina Mousadakou’s chapter on rape in early nineteenthcentury Greece in this volume. 39 Kollmann, By Honour Bound, pp.24–30. 40 Hellie, Muscovite Law Code, preamble. 41 Frank H. Stewart, Honor, Chicago, IL: University of Chicago Press, 1994, pp.75–7. 42 Christian Hübner, Ueber die Anwendbarkeit der Bergbaustrasse in Deutschland, Leipzig: Gothe, 1796, pp.37–44; Christian Reinhold Köstlin, Abhandlungen aus dem strafrechte, Tubingen: Laupp, 1858, pp.4–7. 43 Christian Reinhold Köstlin, ‘Die Ehrverletzung nach deutschem Rechte’, Zeitschrift fur deutsches Recht und deutsche Rechtswissenschaft, 15, 1855, 170–87. 44 Hellie, Muscovite Law Code, art. 280. 45 Johann Christoph Koch (ed.), Hals- oder peinliche Gerichtsordnung Kaiser Carls V, . . .: nach der Originalausgabe vom J. 1533 auf das genaueste abgedruckt und mit der zweiten und dritten Ausgabe . . . , Giessen: Krieger, 1824, art. 110, p.55. 46 Julius Clarus, Practica criminalis seu sententiarum receptarum, Venice, 1595, book V, p.120; Benedict Carpzov, Praxis rerum criminalium, Wittenberg: M. Henckel, 1670, vol. II, quest. 73–7. 47 Christian Reinhold Köstlin, ‘Die Ehrverletzung nach deutschem Rechte’, p.183. 48 Thomas Starkie, Treatise on the Law of Slander and Libel, London: J. and W.T. Clarke, 1830, pp.119–26. 49 See, for example: PSZ, I, 597; III, 1460. 50 S.I. Kotkov, A.S. Oreshnikov and I.S. Filippova (eds), Moskovskaia delovaia i bytovaia pis’menost’, Moscow: Nauka, 1968, nos 10–11, pp.48–51. See translation in H.W. Dewey and A.M. Kleimola (trans and eds), Russian Private Law in the XIV–XVII Centuries, Ann Arbor, MI: University of Michigan Press, 1973, pp.12–17. 51 ‘Artikul Voinski’, in A.G. Man’kov (ed.), Zakonodatel’stvo perioda stanovlenija absolutisma, Moscow: Iuridicheskaia literatura, 1986, p.359. 52 Agneta Fischer, Antony Manstead and Patricia Rodriguez Mosquera, ‘The Role of Honour-Related vs. Individualistic Values in Conceptualising Pride, Shame, and Anger: Spanish and Dutch Cultural Prototypes’, Cognition and Emotion, 13, 1999, 149–79.

2

Fama, shame punishments and the history of justice in the sixteenth and seventeenth centuries1 Antonella Bettoni

Introduction Consider a typical North Italian city: in the train station with walls covered in graffiti a passer-by comments: ‘If I caught those who wrecked this place, I would chain them to the wall and make them clean it with their tongue!’. This harsh statement raises several linked considerations. The type of punishment fantasised about here falls within the category of shame punishment, because of the very public methodology envisaged. The passerby probably did not know he was evoking a punitive trope routinely used up to the eighteenth century, one which implied a large and arguably systematic community participation but which had been superseded by the demand for an exclusive right of punishment by the state. This reopens the question of reutilising shame punishments as substitutes for imprisonment, which has produced a lively debate in Western scholarship from the 1990s, as an examination of Nussbaum’s work indicates.2 Nussbaum differentiates between Communitarians,3 who argue for a return to use of shame punishments again, and Liberals, arguing that such a return is both useless and harmful. Communitarians argue that the causes of social disorder and declines in behavioural standards lie in the lack of social inhibitions. Thus, deviant individuals should be stigmatised as part of a process restoring community order, thereby conferring on shame penalties a deterrent effect.4 Liberals question the wisdom of liberal democracies inflicting such punishments and the benefits that states gain from dispensing shame punishments. Western legal systems, they argue, cannot sustain the infliction of shame penalties because they have already ‘articulated the distinction between shame and guilt, viz that shame . . . pertains to a trait or feature of the person, whereas guilt pertains to an act’.5 In this chapter, one of the most interesting lines of reflection concerns an intertwining of these conflicting perspectives in the application of shame punishments, including the active role played by the community.

Shame and community The pre-modern community was central to everyday human experience: individuals were important only in so far as they belonged to a community of

Fama, shame punishments and history of justice 33 some kind. The power of prescribing and endorsing norms was a widespread power, pertaining to every plural associate social body.6 There was no single sovereign legislator, the law was the expression of social bodies, while the complex duty of harmonising norms and settling jurisdictional conflicts was the preserve of jurists, who guaranteed its efficient functionality. Justice and its administration were thus affairs of central concern to communities in the interests of their individual members. The community protected and acted as guarantor for them, while adopting strategies in order to settle conflicts. The concept of crime as an act affecting the whole community derived from this, meaning an important part of the delivery of justice was dealing with vendetta as a concept. Vendetta was an everyday aspect of the management of conflict in pre-modern communities. The right to it was one possessed by a crime victim,7 but its practice also involved wider community networks, not merely the families of the individuals directly concerned.8 Thus, the social strategies accompanying vendettas went beyond retaliations and reprisals to include negotiations intended to restore peace. Such negotiated justice had a strong communitarian nature, but it meant that those without community (vagrants, idlers etc.) were abandoned to the vagaries of public justice, which lacked the personal dimension, making it more apparently arbitrary.9 This is not to say that, at times, individuals with community standing did not resort to public justice when seeking a more public reparation for a suffered wrong. At such times, public justice had the power to define and conclude a particular lawsuit, providing a further element of evaluation for historians. However, it is a measure of its subordination to the pursuit of more private justice negotiations that the processes of public justice could always be halted by any subsequent agreement between the parties in a case. Consider also the development of fama, best understood as constituting individual reputation,10 which (within the criminal justice process) enabled judges to proceed ex officio in the inquisitorial trial format that came to characterise the judicial apparatus of much of pre-modern Europe.11 A collective community voice could indict culprits for misdeeds in the context of fama and so set in motion a further manifestation of public justice. It was accepted that each individual had a claim on a community’s fama, but that no single individual had full power over it. Equally, that community was the dominion in which a man’s fama existed, and that individuals had, therefore, to be jealous guardians of their fama.12 From individual good or bad actions, good or bad fama could result, according to the judgement of the community, which had the power to consume and present actions in ways that labelled them as pertaining to good or bad fama. Thus, to be effectively operational, an individual’s fama needed to be disseminated through the multi-voiced community even though it remained the responsibility of the individual to maintain their good fama, suggesting a powerful social control mechanism at work.13 A failure to maintain fama by a failure to behave honestly and according to socially accepted rules opened up the individual to the ‘infamy’ of shame punishments in what was, for contemporaries, a well-defined process.

34 Antonella Bettoni In terms of criminal justice, the fama of any criminal deed had to be differentiated from the fama possessed by a community – an identification process that was the duty of the qualified members thereof, those who were boni et honesti viri (good and honest men).14 A further dimension to an understanding of how shame worked in pre-modern justice can be gained from exploring those practices of the Catholic Church that utilised fama. Initially developed by the Church to stem either heresy or immoral behaviour by clergy, the concepts of purgatio canonica15 and, later, inquisition,16 also partake of fama, understood within a communitarian logic and promoting the use of the inquisitorial trial system. In practice, within the justice process, therefore, infamy constituted the loss of one’s good fama, imposing a particular stigma on those who suffered such punishments. It constituted serious damage to an individual’s social identity. There were, in practice, two forms of infamy: infamia iuris (legally defined infamy) and infamia facti (infamy defined by individual conduct), both possessing juridical consequences, which were more serious for the former than for the latter. In practice, infamia facti represented a degree of nonconformity to rules and social behaviour rather than actually law-breaking actions. Consequently, punishments for infamia facti were a community responsibility, where it was a matter of a stigmatising social stain to punish those who, for some reason, avoided conviction in a formal criminal trial. It was damaging in the realm of social rather than legal discredit, accompanied by a clear humiliation process that acted as a form of satisfaction of the claims of the ‘victim’ of offending actions.17 However, to be adjudged guilty of infamia facti did have legal implications. For instance, it devalued any testimony given in court emanating from such individuals. By contrast, there were two constitutive elements of infamia iuris: culpability in the eyes of the law and personal culpability. In some examples of infamia iuris at work, the focus was on crimes characterised by their capacity to create a social scandal and associated with high levels of individual notoriety within the community where the law, acting as the voice of that community, could be invoked without the active intervention of a judge in the infliction of a suitable shaming punishment. Success here depended on the law remaining in accord with community standards and mores, so that there could be a reasonable expectation that what amounted to the law would be invoked in the form of automatic community condemnatory conduct towards a culprit in such cases. Categories of crime of this kind included conduct that was always susceptible to community moral disapproval such as prostitution, pimping, adultery, bigamy and sodomy, but also included ‘offences’ such as the marriage of widows during the first year of mourning, usury, circus games and theatrical performances. What these all have in common is their public nature, ensuring that they were widely known and thereby productive of scandal in an era when the avoidance of scandal was a major social concern.18 More formal shaming processes, those involving a judge, constituted infamia per sententiam. Here the power to inflict ‘infamy’ lay with the judge but within

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carefully prescribed limits.19 In reaching decisions, not only the factum rei but also the factum iudicis, in the shape of evidence-based decisions to convict, was necessary. Essentially, factum iudicis consisted of a final judgement pronounced on an individual convicted of a crime identified in law as productive of infamia per sententiam, or shame inflicted by the terms of the sentence. All the crimes constituted as an actio famosa produced infamia per sententiam, including actiones publicae such as lese-majesty, murder and forgery, and actiones privatae, which covered private crimes deriving from criminal deeds and contractual deeds, although these were not all automatically ‘infamous’ in their effect. The process located any decision to impose infamy on an individual via a shame punishment in the hands of the judge alone, but acting on behalf of the community. A judge could decide to award a shame punishment on the basis of the seriousness of the context of a particular incident, even where the crime was not ordinarily among those that produced infamy. This bestowed on judges a significant power because, unlike other punishments at a judge’s disposal, damage to an individual’s fama was permanent. There was thus an expectation that judges would be extremely cautious in inflicting such. The public implementation of most shame punishments (flogging, putting in the pillory) involved the entire community as an indispensable component, both as audience and instrument in its execution. Without a community presence, there was no reason for such shame punishments. The use of shame punishment is thus noteworthy as being appropriate to a system of negotiated justice, where the community cooperated with the state in maintaining order by inflicting such punishments, making them a res publica (public matter). Therefore, shame punishments are fitted to justice formats that delegate parts of their functions or duty of implementation to the community.

The changing context of shame and justice Over time, as part of a process towards a centralisation of forms of government, the administration of justice became more institutionalised and so less intimately entwined with community processes. The realisation that judicial administration provided a major element in the consolidation of a government’s power over individuals and communities ensured a development in how crimes were conceptualised. Offences defined as being against public order were redefined to constitute, instead, offences against the actual state because of the role it arrogated to itself as guarantor of the public peace. As an instrumentum regni, a tool of government, the law thus privileged the development of an identifiable criminal law and accompanying criminal procedure.20 The practical result was, gradually, to deprive the more localised community of its traditional rights to settle disputes via the mechanisms of negotiated justice.21 Hegemonic justice proceeds from above, deriving from a state arrogating the right of judging and punishing to itself. Here it was based on a trial system initiated ex officio by a judge, supported by gathered evidence

36 Antonella Bettoni and concluded through the infliction by that judge of a punishment reflecting state priorities. Shame punishments are badly suited to such a top-down system because they entail a high degree of active community participation in resolving the issues. However, in practice, this elevation of hegemonic justice did not mean the immediate disappearance of negotiated justice. The process was more gradual, as jurists regularly noted.22 The legal emphasis on the fama of the accused, though, did diminish in a context where the administration of justice became ever more an affair of offices and mechanisms. In this significant change to the legal landscape, hegemonic justice interposed between community and its management of crime by taking over both community and justice administration by claiming an impartiality that manifested itself in the symbolic representations of justice. To the statues of justice that adorned public spaces, a blindfold was added to its other two classic attributes: the sword and the scales.23

Fama and the modernising of inquisitorial justice Originally, the inquisitorial trial was strongly linked with issues of fama, providing a trusted and legally accepted community voice. However, this community power was so eroded by the sixteenth century that Julius Clarus, a well-known criminologist of the day, suggested that fama as a concept had already been abandoned by the criminal justice process.24 This meant that by the seventeenth century, the power of the community to negotiate with the justice system had disappeared, to be replaced by the finality of a judge’s statement based on the official process. Clarus, for example, confirmed that throughout the Italian princedoms the established reality was that judges had the power to initiate an inquisitorial trial regardless of actions taken by the parties concerned to either move to trial or settle the dispute out of court.25 Carpzov, a renowned German jurist of the seventeenth century, declared that a settlement reached between offender and victim did not have the power to remove the will of the state to exact public revenge; while the victim could act to his own detriment, he did not have the right to remove that power from the res publica.26 Brunnemann argued additionally that even a judge lacked the ability to agree a negotiated settlement because once an inquisitorial trial had been initiated, judges could only inquire, convict or acquit, because it was only for this purpose that they were appointed.27 Shame punishments inflicted by the law and the community thus lost some of their significant consequences for those on whom they had been inflicted. For example, traditionally such individuals had been excluded from providing evidence in other trials because they lacked fides, but within the new system their testimony could be accepted in a case as long as it was corroborated through torture, which acted to ‘purge’ their infamy.28 There was much debate among jurists over this, however, testifying to the enduring attraction that fama had within the criminal justice process. Farinacius, in his Praxis et Theorica Criminalis, argued that among those deemed ‘infamous’ because of infamia

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iuris, there was a difference between those who had become so as a result of infamia ipso iure and those who had become so because of infamia per sententiam.29 Such a division was a regular issue of debate for seventeenthcentury jurists,30 with some declaring it explained the absence of the infamia ex genere poenae. Carpzov, for example, recognised that certain punishments, such as whipping and hanging, were considered ‘shaming’ by popular opinion. However, he maintained that it was not the punishment that shamed individuals. What did was the cause (causa), justifying the award of a particular sentence for a crime that did so. Those causes that did not generate infamia iuris could not make a convicted party juridically infamous.31 Others argued that, since the punishment for a crime encapsulated a final judgment on individual fama as an essential prerequisite, it was the sentence that inflicted the shame.32 It mattered because it had implications for the relative power of the state over the criminal justice process. For contemporary jurists, though, it was not only the issue of the powers possessed by judges – there was also the matter of shaping popular opinion on the topic. People in the community had to accept that they did not have the right to label an individual as ‘infamous’ because that individual had had to suffer a shaming punishment of some kind.33 The community had to be educated to accept that it was up to the state-imposed law, not either judges or communities, to established the infamy (or lack of it) of a particular criminal act. What this meant in practice was that the sphere for application of the infamia per sententiam was significantly reduced. Jurists now indicated paths that could be followed in order to avoid infamy, even when an individual had the misfortune to be involved in a criminal trial for iniuria. Aretinus had already suggested, in the fifteenth century, that it could be sufficient to appear in court with a procurator or to pay a fine before the issue of the sentence.34 A substantial number of noteworthy German jurists in the two subsequent centuries referred to a practice in the Reichskammergericht that could be invoked to avoid sentences carrying ‘infamy’ for those convicted of iniuria.35 Berlich’s reference to this practice suggested the development of sophisticated and realistic strategies that sought to justify the preservation of an individual’s fama on grounds such as the high social costs he would suffer due to, for example, exclusion from colleges, associations, guilds and other aspects of the daily business of the community.36 Equally, ‘infamy’ deriving from breaches of contract (ex contractibus) appears to have been avoidable if the defendant either appeared in court with a procurator37 or settled the dispute with the other party via a transaction amounting to restitution.38 True, the shaming associated with infamia ipso iure maintained its significance, but its importance lay in the particularly criminal nature of the deeds associated with it. This was made easier because some earlier ‘offences’ were no longer held to cause public scandal, such as the marriage of a widow during the first year of mourning or theatrical performances. There was, nevertheless, a legacy in terms of the shame associated with judgments derived from infamia facti despite the efforts of jurists to

38 Antonella Bettoni re-educate the community. It demonstrated a considerable and apparently extraordinary survival capacity, thanks to the resilience of its community dimension.39 This dimension was stubbornly resistant to external interventions, which conferred on infamia facti an impenetrability to the official gaze. It partook of the processes of natural justice within communities, notably in its characteristics of inflexibility of core attitudes towards the moral dimensions of various actions. Neither princes nor popes had the power to remit, quash or wipe out a community’s internal judgmental perspective on a man or woman if they chose to award them bad fama, as many jurists pointed out.40 Authority cannot change the vox populi (popular opinion). Farinacius reflected: the prince cannot take away or remove the infamia facti, because men’s opinion of an individual’s goodness or badness cannot be eradicated by the prince, neither can that prince make people believe a man is good when they believe and want to believe him to be bad.41 Some jurists, such as Oddus Sfortia, argued that fama could be restored to an individual by an eminent authority whether religious, such as the Pope, or secular, such as the prince, if they so chose.42 However, this was more flattering to princely prerogative than as a realistic assessment of the impact of such authority on popular feeling.43 A German case study is revealing of this reality. Attempts were made to remove the degradation associated, under infamia facti, with some ‘defiling’ trades by the promotion of alternative perspectives. German jurists indicate that such attempts, while supported by authority and those involved in those trades, were not successful in changing the attitudes of a wider populace.44 Instead, the ordinary community continued to identify as ‘infamous’ those individuals occupied in defiling trades. In other words, communities continued to reserve to themselves the privilege of deciding who was to be inflicted with infamia facti.45 Kathy Stuart stresses the insistence of, for instance, Stryk46 and Heineccius47 that the continuing stigma on these trades derived specifically from the actions of town guilds members in direct contradiction of specific government decrees.48 She reflects: ‘For centuries artisans defied governmental attempts to rehabilitate dishonourable people. From 1548 through to the eighteenth century, imperial and local governments regularly issued mandates attempting to cleanse defiled trades of their stigma of dishonour.’49 Their objective was to keep members of such trades out of the town guilds. Thus, ‘While seeming to pay obeisance to the absolutist pretensions of their patrician lords, acknowledging the patricians’ claim to sovereignty in deferential language and gestures’, such artisans were ‘absolutely intransigent in question of honour’.50 She adds: Ritual pollution conflicts over dishonour followed a typical pattern. A person of dishonourable background [who] tried to gain admission to

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a guild, or a guild member violated pollution prohibitions, thus dishonouring himself. The honourable guildsmen denied admission or expelled the dishonourable person from the guild, whereupon the dishonourable person appealed to the city government. The authorities saw dishonour as a kind of social cancer that caused the economic destruction of individuals who became defiled, and threatened to spread beyond them to swell urban welfare rolls. Accordingly, the magistracy proclaimed that the dishonourable candidate was in fact honourable, and ordered the guild to accept him. But the authorities were frequently unable to enforce their command. Dishonour conflicts dragged on for years or decades, and in most cases the dishonourable candidate never gained admission to the guild.51 As she concludes, ‘State formation, the application of “social disciplining” and the expansion of dishonour in the early modern period are interdependent historical processes’.52 In so far as infamy and shame punishments are concerned, it can be concluded that there were two identifiable paths along which early modern states moved. One path was directed towards gradually divesting shame punishments of their practical impact (for example, admitting the testimony of ‘shamed’ witnesses in prosecutions) and so of their social value. The other path led towards a limiting of the sphere of application for shame punishments, permitting only acts identified as ‘infamous’ in law and sanctioned a such by a judge’s declaratory pronouncement or sentence (therefore eliminating infamia ex genere poenae and attempting to curb the impact of infamia facti). More generally, the question of shame punishments fell within the criminal politics of the new states, which aimed at divesting the community of any share in judicial administration. However, such attempts were not automatically successful in terms of changing community attitudes towards shame as a tool for internal social control in the daily life of a community.

Notes 1 A version of this chapter has been published in the online journal Forum Historiae Iuris. 2 The question was reintroduced by John Braithwaite, Crime, Shame and Reintegration, Cambridge: Cambridge University Press, 1989, p.226, outlining the problems and hypothesising a form of shaming, which he labelled reintegrative shame as a way of controlling crime as opposed to disintegrative shame (stigmatisation), which instead ‘pushes offenders toward criminal subcultures’: ibid., pp.12–15; see also Martha C. Nussbaum, Hiding from Humanity:Disgust, Shame, and the Law, Princeton, NJ: Princeton University Press, 2004, p.413. 3 Braithwaite, Crime, pp.85–94, for a definition of communitarianism. 4 Nussbaum, Hiding from Humanity, pp.227–8; 238–9; D.M. Kahan, ‘What do alternative sanctions mean?’ University of Chicago Law Review, 63, 1996, 591–653; D.M. Kahan, ‘The progressive appropriation of disgust’, in S.A. Bandes (ed.), The Passions of Law, New York: New York University Press, 1999,

40 Antonella Bettoni

5 6 7 8 9 10

11 12 13 14 15

16

17 18 19 20 21 22

pp.63–79; D.M. Kahan, ‘What’s Really Wrong with Shaming Sanctions’, Texas Law Review, 84, 2006, p.2075 (revised 6 November 2008). Nussbaum, Hiding from Humanity, p.229. P. Grossi, L’ordine giuridico medievale, Rome: Laterza, 1995, p.195. M. Sbriccoli, ‘Giustizia criminale’, in M. Fioravanti (ed.), Lo Stato moderno in Europa: Istituzioni e diritto, Rome: Laterza, 2002, p.164. Ibid., p.164; A. Zorzi, ‘Fracta est civitas magna in tres partes’, Conflitto e costituzione nell’Italia comunale: Scienza e Politica, 39, 2008, p.75. Sbriccoli, ‘Giustizia criminale’, p.166. For a more detailed discussion of fama, see J. Thery, ‘Fama: l’opinion publique comme prevue judiciaire: Aperçu sur la revolution médiévale de l’inquisitoire (XIIe–XIVe siècle)’, in B. Lemesle (ed.), La preuve en justice de l’Antiquité à nos jours, Rennes: PUR, 2003, 119–47; M. Vallerani, ‘La fama nel processo tra costruzioni giuridiche e modelli sociali nel tardo medioevo’, in P. Prodi (ed.), La fiducia secondo i linguaggi del potere, Bologna: Il Mulino, 2007, 93–111. For the early modern period, see A. Bettoni, ‘Voci malevole: Fama, notizia del crimine e azione del giudice nel processo criminale (secc. XVI–XVII)’, Quaderni Storici, 41(1), 2006, 13–38. On this matter, see Thery, ‘Fama’; Bettoni, ‘Voci malevole’. See Decretum Gratiani, pars II, causa 12, quaestio 1, cap.10 Nolo ut. Also G. Todeschini, Visibilmente crudeli: Malviventi, persone sospette e gente qualunque dal Medioevo all’età moderna, Bologna: Il Mulino, 2007, p. 243. On the social control exercised by the community by way of the attribution of good or bad fama in England, see B.A. Hanawalt, ‘Of Good and Ill Repute’: Gender and Social Control in Medieval England, Oxford: Oxford University Press, 1998. Saint Thomas Aquinas, Summa Theologiae, Rome: Marietti, 1952, paras IIa, IIae, quaestio 73, art.3. Purgatio canonica consists of an oath taken by the defamed person together with a lawful number of compurgatores (people who guarantee the trustworthiness of the person who is taking the oath). Used particularly to purge oneself from the crime of heresy, it was also invoked by priests to defend themselves from the bad fama of living with a woman. See Decretum, pars 2, causa 2, quaestio 5; Liber Extravagantium, lib.V, tit.34. See also P. Landau, Die Entstehung des kanonischen Infamiebegriffs von Gratian bis zur Glossa ordinaria, Cologne: Böhlau Verlag, 1966, pp.10–20; A. Fiori, ‘Inchiesta e purgazione canonica in epoca gregoriana’, in G. Gauvard (ed.), L’enquête au Moyen Age, Rome: Ecole Française de Rome, 2008, pp.29–39. R.M. Fraher, ‘IV Lateran’s Revolution in Criminal Procedure: the Birth of Inquisitio, the End of Ordeals, and Innocent III’s Vision of Ecclesiastical Politics’, in Lara R. Castillo (ed.), Studia in honorem eminentissimi cardinalis A.M. Stickler, Rome: Las, 1992, pp.97–111. In practice, it also spread to both illegitimate children and those who did jobs considered intrinsically dishonourable. Bartolus a Saxoferrato, In primam Codicis partem (commentaria) . . ., Venetiis, 1581, lib.2, tit.4 De transactionibus, lex 41 Si quis maior, n.10. On the arbitrium iudicis, see M. Meccarelli, Arbitrium: Un aspetto sistematico degli ordinamenti giuridici in età di diritto comune, Milan: Giuffrè, 1998. Grossi, L’ordine giuridico medievale, p.31. Sbriccoli, Giustizia criminale, pp.164–73. M. Sbriccoli, ‘Legislation, Justice and Political Power in Italian Cities, 1200–1400’, in A. Padoa Schioppa (ed.), Legislation and Justice, Oxford: Clarendon Press, 1997, p.49; Albertus Gandinus, Tractatus de maleficiis, Venice: Cominum de Tridino, 1555, rub. De transactionibus et pactiis in maleficiis, n.13 in fine.

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23 On this issue, see the exhaustive though ponderous work of M. Sbriccoli, including ‘La benda della Giustizia: Iconografia, diritto e leggi penali dal medioevo all’età moderna’, in M. Sbriccoli, P. Costa and M. Fioravanti (eds), Ordo iuris: Storia e forme dell’esperienza giuridica, Milan: Giuffrè, 2003, pp.41–95; also the interesting interpretation of A. Prosperi, Giustizia bendata: percorsi storici di un’immagine, Turin: Einaudi, 2008. 24 J. Clarus, Sententiarum receptarum liber quintus, cit., § finalis, quaestio 6, § praeterea scias, in fine. See also Bettoni ‘Voci malevole’, pp.13–38. 25 Clarus, Sententiarum receptarum liber quintus, cit., § finalis, quaestio 58, n.1 versic. Sequens, and n.2 versic. Sed punctus. On this point, see I.B. Baiardus, ‘Additiones ad Iulii Clari Librum Quintum sive Practicam Criminalem’, in J. Clarus, Liber Quintus sive Pratica Criminalis, Venice: ex typographia Baretiana, 1626, § finalis, quaestio 58, additio at Parum prodesset, which declared that in the Papal States, settlements were permitted only in case of minor offences such as verba iniuriosa (verbal offences) and pugna (fights). On settlements in criminal matters, see M. Sbriccoli, ‘Lex delictum facit: Tiberio Deciani e la criminalistica italiana nella fase cinquecentesca del penale egemonico’, in M. Cavina (ed.), Tiberio Deciani (1509–1582): Alle origini del pensiero giuridico moderno, Udine: Forum, 2004, pp.110–11. 26 B. Carpzov, Practica nova imperialis Saxonica rerum criminalium, pars 3, quaestio 148, Lipsia: sumptibus Ioannis Christiani Kleibii, 1747, nn.1–18. 27 J. Brunnemann, De inquisitionis processu, cap.VI, De executione sententiae condemnatoriae, nn.2–9. These matters are also dealt with in A. Bettoni, ‘Res judicata and null and void judgement in the Italian and German doctrine of Sixteenth and Seventeenth Century Criminal Law. Certain interpretative profiles’, Crime, Histoire et Sociétés/Crime, History and Societies, 12(1), 2008, 65–96. 28 A. Bonfranceschi, Additiones ad Angeli Aretini De maleficiis tractatum . . . , Venetiis: Societatem Minimam, 1555, vers. Qui iudex statuit terminum quatuor dierum, n.28; Jason Maynus, In primam Codicis partem Commentaria, lib.1, tit.4 de summa trinitate et fide catholica (critical edition 1), lex 1 cunctos populos, Venitiis, 1590, n.46; E. Bossi, Tractatus varii qui omnem fere criminalem materiam excellenti doctrina complectuntur, tit. De tortura testium, Venetiis: Altobellum Salicatium, 1570, n.3. 29 P. Farinacius, Praxis et Theorica criminalis, pars 2, quaestio 56, n.5; P. Farinacius, Variae quaestiones et communes opiniones criminals, Lugduni: sumptibus Iacobi Cardon and Petri Cavellat, 1621, lib.2, quaestio 56, n.5. 30 Nicolaus de Tudeschis (Abbas Panormitanus), Commentaria secundae partis in secundum librum Decretalium, Venetiis: apud Iuntas, 1588, tomus IV, lib.2, tit.20 De testibus et attestationibus, cap.54 testimonium, n.6 circa in medio; Maynus, In primam Codicis, lib.1, tit.4 de summa trinitate et fide catholica (critical edition 1), lex 1 cunctos populos, n.44. 31 Carpzov, Practica nova imperialis, pars 3, quaestio 135, nn.46–52. Others agreeing with Carpzov include Matthaeus, De criminibus, lib.48, tit.18, cap.3, nn.6–7; Brunnemann, Commentarius in quinquaginta, vol. I, lib.3, tit.2 de his qui notantur infamia, lex 22 ictus fustium, n.1; S. Stryk, Usus modernus pandectarum, vol.14, lib.3, tit.2 De his qui notantur infamia, par.13, in S. Stryk, Opera omnia, Florentiae: apud Josephum Celli, 1841; J.G. Heineccius, Elementa iuris civilis secundum ordinem Pandectarum, vol. 6, lib.3, tit.2, par.412, Frankfurt: apud Franciscum Varrentapp, 1757. 32 Brunnemann, Commentarius in quinquaginta, vol. I, lib.3, tit.2 de his qui notantur infamia, lex 22 ictus fustium, n.6. 33 Ibid., De his qui notantur infamia, lex 22 Ictus fustium, nn.2–6. 34 Angelus de Gambiglionis (called Aretinus), De maleficiis, Venetiis: apud haeredes lacobi luntae, 1555, vers. Dictum Sempronium in CCC librum Bononiensem

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35

36 37

38 39 40

41 42 43 44 45

46 47 48 49 50 51 52

sententialiter condemnamus, n.3. Both possibilities are foreseen also by Carpzoz, Practica nova imperialis, pars 2, quaestio 94, nn.82–3, 87. A. von Gail, Practicae observationes ad processum iudiciarium imperialis Camerae, Antwerp: Guilielmum Lesteenium and Engelbertum Gymnicum, 1653, lib.1, observ. 65, n.6; C. Besold, Consilia Tubingensia, Tubingae: typis Philiberti Brunnii, 1661, pars 3, cons.158, nn.56–57, for example. Berlich, Conclusiones practicabiles, pars 5, conclusio 63, n.36. H. Doneau, ‘Commentaria de iure civili’, in H. Doneau, Opera Omnia, Rome: Josephi Salviucci, 1828, vol. 5, lib.18, cap.8, par.V; Brunnemann, Commentarius in Codicem, vol. I, lib.2, tit.12 ex quibus causis infamia irrogatur, lex 22 fidem rumpens societatis, n.1. J. Harpprecht, Commentaria in quatuor libros Institutionum, vol. 4, lib.4, tit.16 de poena temere litigantium, par. ex quibusdam, Frankfurt: Ioannes Saurius, 1598, n.17. Baldus de Ubaldis, In sextum Codicis, Lugduni: Iuntas, 1577, tit.7, lex 2, n.9, clearly stated: ‘Unde videtur facilis descensus et c. quem semel horrendis maculis infamia nigrat ad bene tergendum multa laborat aqua.’ T. Decianus, Tractatus criminalis, tomus I, lib.5, cap.48, n.31; F. Duaren, ‘In primam partem Pandectarum sive Digestorum methodica enarratio’, in F. Duaren, Opera Omnia, Luca: Josephi Rocchii, 1765, vol.1, lib.3, tit.2 de his qui notantur infamia, cap.2; E. Peters, ‘Wounded Names: the medieval doctrine of infamy’, in E.B. King, S.J. Ridyard (eds), Law in Medieval Life and Thought, Sewanee, TN: University of the South, 1990, 43–89, especially p.84, n.94. Farinacius, Praxis et Theorica criminalis, lib.2, quaestio 56, Frankfurt: Palthenius, 1605, n.343. O. Sfortia, Tractatus de restitutione in integrum, quaestio 93, Venice: Lucianum Pasinum and Marcum Amadorum, 1584. See also the quotation of the passage in Farinacius, Praxis et Theorica criminalis, lib.1, quaestio 6, n.45 versiculo et in proposito scias. For example, see Stryk, Usus modernus pandectarum, vol.14, lib.3, tit.2 De his qui notantur infamia, par.5. H. Bocer, ‘Disputatio de infamia et infamibus’, in Disputationes de universo quo utimur iure, Argentorati: Lazari Zetneri, 1634, vol. 2, classis 6, disputatio 8, thesis 1, n.27; Brunnemann, Commentarius in quinquaginta, tomus I, lib.3, tit.2 de his qui notantur infamia, Ad rubricam, n.7. Stryk, Usus modernus pandectarum, vol.14, lib.3, tit.2 De his qui notantur infamia, par.5. Heineccius, Elementa iuris civilis secundum ordinem Pandectarum, tomus VI, lib.3, tit.2, par.410. K. Stuart, Defiled Trades and Social Outcasts: Honor and Ritual Pollution in Early Modern Germany, Oxford: Oxford University Press, 1999, pp.1–2. Ibid., p.7. Ibid., p.16. Ibid. K. Stuart, ‘Disonore, contaminazione e giustizia criminale ad Augusta nella prima età moderna’, Quaderni Storici, 33(3),1998, 677–705, see especially p.679.

3

Towards an agenda for the wider study of shame Theorising from nineteenthcentury British evidence David Nash Shame is a phenomenon as old as, if not older, than man.1 I did not fear punishment, but I dreaded shame: I dreaded it more than death, more than the crime, more than all the world. I would have buried, hid myself in the center of the earth: invincible shame bore down every other sentiment; shame alone caused all my impudence, and in proportion as I became criminal the fear of discovery rendered me intrepid.2

Introduction Shame, beyond the early modern period, is surprisingly little studied among historians in Western Europe and this gap is also especially prevalent in Britain. Such an oversight and lacuna is surprising and represents something of a lost opportunity for the discipline of social and cultural history. Shame is fundamental to many aspects of the history of behaviour and emotions, yet so often it appears to be a strangely intangible force, insisting that the historian must look very carefully to identify the phenomenon and chart its precise influence on both events and social phenomena. Importantly, the study of shame has been substantially colonised by other disciplines with agendas that historians have had to assimilate before further exploration can occur. Anthropologists and sociologists have been in the forefront of most modern attempts to analyse and quantify shame, but invariably they do so from the perspective of a thoroughly modernised society that draws precise and coloured conclusions about that modern society through meticulously observing thoroughly modern individuals. This is scarcely surprising since the individuals involved in these disciplines obviously do not have the opportunity to interview and interact with people from the past as historians do. One fundamental issue that is a product of this, something that should not be forgotten, is the fact that in the West, these disciplines meet individuals who they would describe as civilised and advanced almost all of the time. As such, emotions such as humiliation and shame are often hard to encounter and may be systematically submerged within such a society. When the phenomenon of shame does get mentioned, this is to describe it as, generally speaking, some

44 David Nash form of primitive emotion. This is also in part influenced by many of the standard definitions of shame, notably that offered by the Oxford English Dictionary.3 These existing definitions are inclined to see shame as static, uncomplicated, one-dimensional, instantaneous, and its effects socially marginal and isolated. One other, perhaps unwitting, quality of these definitions that is especially unhelpful is their capacity to reinforce the idea that shame exists solely within primitive societies, which modern and sophisticated ‘guilt’ based cultures have transcended. These views of shame’s primitive nature become associated with the pre-industrial, economically backward and the socially underdeveloped in the contemporary world.

Shame, guilt and modernity From this perspective, it is extremely difficult to get a sense of what shame might have been like in the historical past, when issues occasioned by the present are so persuasively occupy the minds of these practitioners. When these concentrate upon modern, sophisticated society, it is generally suggested that shame forms no part of its make-up and has somehow been replaced by the related but indisputably modern emotion of guilt. This emotion of modernity, guilt, is seen as being characterised by its almost total focus on the individual as the unit of feeling and emotion.4 Within guilt it is the individual who transgresses, feels the need to atone and then ultimately rebuilds their own self and esteem without reference to external society. Thus, within this paradigm, shame is associated with the collective, while guilt becomes associated with the individual. Those who have been braver with their assertions have problematically produced generalised or ‘ideal type’ definitions and some examples of shame allegedly in action in contemporary contexts. This has led to criticism of such approaches as over-theoretical and lacking the credibility provided by concrete examples. Where it is possible to get some sort of chronological understanding of the issue of shame, the insights provided by philosophers and their own perspectives demonstrate different species of bias, which themselves can affect how we view this phenomenon historically. Such views are often teleological and thus can sometimes produce a distorted and crude ‘linear’ view of the history of shame. These often look for a point in the past which is the commencement of an epoch-shaping society in a direction away from shame. Alternatively, they can see a point in the past where the communal and subjective were replaced by a rationality and codification of human behaviour which, for this analysis, was emphatically a change for the worse. The first of these tendencies is represented by the ideas of Norbert Elias and his ‘civilising process’.5 In this he suggested that the growth of the small but influential commercial class in late medieval Europe created a conscious desire to escape the confines of behaviour that limited the influence and expansion of that class. Elias looked at the whole range of mundane behaviours, which he categorised under the following headings: ‘behaviour at table’;

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‘changes in attitudes towards the natural functions’; ‘on blowing one’s nose’; ‘on spitting’; ‘on behaviour in the bedroom’; ‘changes in attitudes towards the relations between men and women’; and, lastly, ‘changes in aggressiveness’. In most of these categories Elias cited a significant number of examples from a diverse range of sources. Although the time period referred to in each example does differ (for example, it is possible to argue that consciousness about personal hygiene and behaviour at table developed first), there is an overall and sustained chronology of the improvement of manners and behaviour.6 The whole tenor of these examples, and the chronology they speak of, is unequivocally a thrusting away of the primitive and uncouth as a conscious process societies indulge in to make themselves ‘civilised’. Thus, this analysis has an inbuilt, judgemental chronology from primitive to civilised and, it should be noted, it also has a vested interest in marginalising these earlier tendencies. Thus also they are discussed with emphasis on their backward nature and to place them in relationship to what forms of behaviour come after them. This means that the process of change towards modernity inevitably, and perhaps mistakenly, takes centre stage within this analysis. Yet there is also what we might describe as an alternative pessimistic teleology offered to explain some of this. Foucault expressed suspicion, scorn even, of the Enlightenment project, which represents a reverse reading of the civilising and modernising project outlined by Elias.7 This involved picking apart the humanitarian claims of reformers in almost all areas of social and cultural life. The rationality that was the keystone of new humane and enlightened thinking was an especially vilified target of Foucault and his followers. So the argument runs, this rationality provided statistics and empirical facts to create various regimes of specialised social knowledge. These asserted their power in the form of self-legitimating professions that claimed jurisdiction over a range of society’s problems and forms of dissident behaviour. Within this behaviour tendencies that did not fit with humane modernising notions became pathologised. This is important in theoretical terms, given that so many of Foucault’s critiques of Enlightenment rationalism focus upon the discourses of these professions and their attempts to do this. Thus, some of these forms of what Elias classified as primitive behaviour became idealised and celebrated in the analysis of Foucault. They are generally portrayed as expressions of the subjective expressive will, which are subsumed, marginalised and eradicated by the rational pathologising of an array of professional experts and the unquestioned power they wield. This is a teleology that works backwards from a state of tyrannical modernity to a point in the past where an organically ‘subjectivised’ society changed for the worse. Both these theories about human behaviour are locked into an overarching and descriptive thesis that somehow bypasses the nineteenth century, precisely the period where modernity is supposedly most fully realised for both their purposes. Elias is apt to see the process well concluded by this point, so the search for shame is a search for its remnants civilised into benign unthreatening forms. Foucault, on the other hand, looks backwards far beyond the nineteenth

46 David Nash century to look at the formation of his dangerous professional hierarchies that are predominantly seen to coalesce at points in the eighteenth century. Thus, both do not effectively acknowledge the existence, longevity or importance of shame within the nineteenth century, nor do they offer signposts or explanations for any existence that shame might possess within modernity. Yet precisely in this period, episodes where the ‘social emotion’ of shame is displayed provide an unrivalled historical window into the emotional and psychological lives of past individuals and societies undergoing the change to modernity. These are episodes where unadulterated shame break the surface in nineteenth-century society, and communities signal to us the importance of issues associated with the cohesion of community, the changing nature of the community’s power over the individual, and the changing place and importance of the self as an historical concept. Although the non-historical disciplines, notably anthropology, have associated shame with the primitive and the rural, it should also be noted that the nineteenth, or bourgeois, century contained notable manifestations of shame and anxiety.8 The terrifying fear of sudden catastrophic poverty and disastrous downward social mobility and, indeed, the acquisitive struggle to reach prosperity is a central theme of much Victorian fiction such as that by Anthony Trollope or Mrs Henry Wood. Nineteenthcentury bourgeois societies conceivably had a greater and deeper sense of shame than the rustics of the previous three generations. Fear of debt, bankruptcy and loss of social position regularly occupied the drawing rooms of the middling sort and we can readily see this in action. Habits intended to deliver restraint, moderation and sobriety became fundamental to middle-class bourgeois identity. Indeed, we should be aware of how fictional depictions of shame and behaviour based on this ideal may have kept popular conceptions of shame, and responses to it, alive in the minds of the readership for these works. Given these apparent opportunities, it remains further perplexing that the issue of shame around modernity has not attracted the attention of more sociocultural historians or socio-legal scholars before this point in time. It is also a mystery for another reason, since the two major paradigms shaping the subject should, on the face of things, have had much to gain from an extensive study of the subject. Social history’s interest in class should have made the study of shame one of its central occupations. Similarly, the postmodern challenge to the paradigm of class-orientated social history should have explored the potential of many narratives and discourses around shame since these involved the creation and use of highly codified language to describe or narrate social realities. These would also have helped mould identities that outflanked what postmodernists saw as the privileging of class discourse. Postmodernists should also have been wise to the importance of this whole area since stories and narratives are also central to the human experience of shame. A still further, important, reason for studying the history of shame is that late nineteenth-century society’s ability to supersede it, and modernity’s desire to erase it from public space, have been, arguably, less than successful. One

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element in the discussion is the developing role of various media in portraying shame that can twist and distort both fact and interpretation. In this we rediscover that ‘shame’ had its uses to a society that should arguably have outgrown it and its power. It tried to create and influence public opinion, but also on occasions became a trope central to entertainment and for constructing the uncivilised other. This resonates with some elements of modern entertainment culture that have rediscovered both the innate power of shame and its efficient ability to convey other cultural messages. Given this concentration upon shame’s interaction with modernity, the potential value of two other theorists can be usefully suggested. Erving Goffman’s work is valuable for studying individual encounters with shame in the past.9 His ideas function well for those interested in emotions that involve the perception of the self and its interaction with the wider world of social encounters. Goffman’s concentration upon the idea of social performance (within situations he called ‘frames’) suggests that this is more important than the guilt-based idea of the robust self, and indeed goes as far as to even deny its existence. Thus, the performances that create the self-image, and their occasional failure, suggest how such activity (even within modernity) is fraught with unpredictable dangers and opportunities for the individual. This also especially suggests how the social emotion of shame might retain its significance and possible longevity.10 Within modern contexts, it is worth noting that the wider frozen or slow-motion ‘framing’ provided by newspapers and printed media, as suggested by Jurgen Habermas, created and nurtured a wider community for the portrayal of socially damaging and expressive incidents of misbehaviour.11 In a way, the twin approaches of Goffman and Habermas placed faith in the ability of the social to successfully mediate stress and express norms, but they both also empower individuals to resist attacks upon themselves and preserve ideals of community acceptability.

Mapping modern shame The historical context for the discussion of modern shame in the nineteenth century begins by discovering and mapping the earlier history of regimes of discipline, whether these were external or internal. Puritanism itself became closely identified with biblical shaming practices in England, while Scotland developed its own species of discipline centred on Calvinism and the power of the local kirk (church). The eighteenth century saw the development of manners as a more refined and subtle method of controlling appetites and behaviour, although it would be misleading to suggest that these replaced the need for more direct controls on errant individuals. Here one of the clear historical paradoxes that cluster around the issue of shame is encountered. If obvious socially visible shame punishments were necessary to maintain order and decorum, then individuals (arguably) did not have a sufficiently developed sense of shame that prevented them from transgressing. If it required cultures of manners to create embarrassment among more socially aware individuals,

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then we are at once required to qualify the distinction between primitive shame cultures and modern guilt ones. Shame punishments are frequently seen as the blunt instrument, yet it is precisely this bluntness that suggests individuals punished by this regime may have had a comparatively undeveloped sense of shame. Within more refined cultures of embarrassment, the very fear of shame constituted intense psychological knowledge of its power, even if it had never actually been experienced by the individual. Thus, we might be forced to conclude that shame had a more real presence and effect on supposedly more modern cultures of manners and behaviour than it may have done on supposedly more primitive shame cultures. As has been noted, the eighteenth century was characterised by a growth in politeness and manners, but there was also a complementary interest in the cult of emotions. This was driven by the culture and machinery of politeness in the form of instruction books and the didactic literature of various genres. However, emotions were also increasingly foregrounded by enthusiastic and charismatic versions of Christianity that stressed the feeling and response to salvation – as William Miller suggests, ‘emotions were in vogue among the high and the low’.12 The quest to become polite and peaceable may form a central part of the longue durée history of behaviour. However, that change was neither homogenous nor uniform and it was by no means complete, and deeper research should illuminate this still further. Other critiques have been prepared to see alternative subcultures challenge politeness or have seen the etiquette of politeness used to inflict physical or psychological cruelty. Others still have also seen how politeness has been harnessed and turned to use by women seeking to police and expose the cruelty of private violence.13 Thus, the remainder of this chapter seeks to showcase how far work has already progressed in filling in the gaps related to shame’s latter history in Britain. This then moves on to suggest an agenda for its further study, to suggest locations where shame might also be fruitfully explored alongside some suggestions about the sources that might legitimately be used to develop these further insights. Work undertaken by myself and a fellow colleague at Oxford Brookes University has sought to place shame on the map by describing its pre-nineteenth-century history and episodes where it breaks the surface at points within nineteenth-century society. To explore the nuances and the still effective and potent force of shame in nineteenth-century society this volume also showcased the use of the fully realised and finely detailed case study where the interactions and particularly the choices open to protagonists are most fully visible.14 The case study is important because the narrative form allows the reader to follow a sequence of events and, if necessary, to pause and reflect on the courses of action open to the protagonist for whom shame is a central issue. This is especially important because it illuminates the crucially significant elements of choice and their apparent multiplicity within such incidents. This again allows the reader to weigh up the other issues that influence this (such as age, marital

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status, class, nationality, gender, etc.) in order to fully comprehend the issue of shame for this individual and the society they interact with.

Developing cultures of shame Cultures of Shame commenced with examples that demonstrated the operation of shame within what conventional historians would see as its classic setting – namely, eighteenth-century British society.15 This age was not so much premodern as obviously supplanted by the reforms in thinking and practice that began to appear at the end of that century and accelerated significantly in the nineteenth century. Initial chapters reveal ‘classical’ shame strategies at work, but importantly suggest how some aspects of shame and shame punishments were ambivalent, even at this early stage. The punishment for an infanticidal mother on the way to execution was spectacularly overturned when she providentially survived the ordeal of the gallows. The ability of the governing authorities to control shame and shape how this individual was treated fell to pieces as the populace discarded this didactic shame in favour of their own individualised responses. Here, the infanticidal mother’s shame was contextualised around providential survival, allowing those who had taunted her to conduct a dialogue with their own shame about their own behaviour and its acceptability or otherwise.16 This unreliability of shame punishment is further showcased by a chapter that discusses the pillory and how this was used as a shame punishment to safeguard the reputation of authority. Yet this also proved to be ineffective when shame punishment was used against ideological dissident, an episodic occurrence by the end of the seventeenth century and an increasing concern by the end of the eighteenth century.17 Those whose ideological or psychological defences were strong enough to resist the pillory – or even on occasions to turn its theatre to their own ends – demonstrated its ineffectiveness as a shame punishment. While this historiography up to this point would fit with modernising notions where shame was replaced by more sophisticated methods of control and regulation, the study of shame in relation to punishment reform yielded some slightly different conclusions. The work of the classical Enlightenment theoreticians of punishment (Beccaria, Bentham, Hume and others) denies an unequivocal modernisation of penology that left behind the primitive, supposedly barbaric and anachronistic ways of dealing with society’s miscreants.18 While there was clearly an attack on arbitrariness alongside a belief that cruelty could be excessive, there was considerably less agreement about the nature of shame within punishment. This was not systematically removed or discarded but, instead, was recognised as having a thoroughly valuable role to play in the new regime of rehabilitation. 19 Indeed, this is where some sort of dissension from the idea of a crude chronological difference between epochs of shame and modern guilt appears. Shame’s survival as a component of incarceration became thoroughly modernised by this process, and in the theories of some of its proponents, central to the individual’s reaction to the punishment they

50 David Nash received.20 Those who could repent at leisure, while incarcerated, would now supposedly most easily and readily feel shame for their actions and conduct. From here the analysis in our text investigated a number of different examples where the precise meaning and function of shame could be explored, including an elaboration of the shame of a clerical miscreant in nineteenthcentury Ireland. Blackguard and immoral priests who misbehaved and called the notion of religious vocation and office into disrepute were scarcely unique to this part of the world and their behaviour would represent a fruitful area of further investigation elsewhere. This particular priest, in late 1820s Wexford, was the centre of a controversy that saw him brought before the Bishop’s Consistory Court in Dublin, accused of a range of offensive behaviours.21 Yet there was also evidence that the local community used these accusations, at the instigation of the local landowner, as a method of removing an individual they profoundly disliked. The court case itself functioned as piece of theatre in which the ability to shame was a contested prize and the protagonists displayed their conceptions of both proper and improper behaviour. The priest was acquitted, but the case enables questions about the shifting nature of shame and how shame-ridden accusations were constructed to attack unpopular authority figures. If the priest were guilty, the accusations suggest how an individual could have so dramatically misjudged his community as well as his own standards of behaviour before his audience. Whether true or false, the accusations suggest that rural communities in the nineteenth century were prepared to use the law in quite sophisticated ways to shame and indict poor behaviour. The phenomenon of marital breakdown was also discussed in a story that illuminates the shame that could lurk within the dark corners of nineteenthcentury personal life: that of a husband who was prosecuted in Jersey in 1870 for excessive cruelty to his wife.22 He had been reported for confining his wife’s head in an ‘iron mask’ and incarcerating her for long periods in a ‘cage’, thereby refusing to allow her to leave the family home or to undertake dayto-day business. When the case came to court, the husband admitted that the mask had been constructed to combat his wife’s severe and enduring problems with alcohol. He had tried to turn to his local community to assist him in this task, even requesting that a local woman should model the bridle to ensure that it was fit for its purpose. The whole venture had been designed to save both the husband and his wife from ruinous shame in the wider community. However, the husband’s actions were swiftly reported to the authorities and the shame of the court case exposed his failure as head of the household and questioned his status as a concerned husband, balancing the shame of his wife’s drunkenness against the assertion of his authority and discipline by displaying her in an iron mask. The magistrate informed the husband that he did not need such customary and anachronistic solutions but instead required a legally sanctioned divorce. This episode demonstrated the enduring power of communal constructions of proper behaviour and the willingness of the community in practice to protect family and reputation. It also showed the

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conflict between such constructions and the laws proffering alternative legal solutions. Moreover, the story itself was written up in three conflicting ways in both local and national newspapers, providing insights into how the issue of shame was tailored to specific audiences and actively consumed by these audiences. In the London papers the story ran as picaresque farce that invoked and played upon discourses of the uncivilised Celtic fringe and its inhabitants as obvious figures of fun. The reportage in provincial papers took the incident more seriously, but focused on the uncivilised behaviour of a foreign ‘French husband’. The Jersey papers took the opportunity to demonstrate the civilising power of the law and the quest of local authorities to uphold this and brand the actions of the husband as uncivilised. The theme of creating and managing audiences for shame also emerged in the book on a somewhat grander scale, with an examination of the construction of a thoroughly modern and urban culture of shame. Through sustained criticism of the Victorian monarchy in the 1860s, and in particular its sexual impropriety and neglect of duty, middle-class radicals gained assent for their own definition of morally upright behaviour.23 Criticising the monarchy’s behaviour allowed middle-class cultures of propriety to gain confidence and set themselves in opposition to the behaviour of the ruling class. This demonstrated the evolving modern functions of shame and similarly developing critiques of the idea of morally uplifting example associated with social status. It analysed motivations for cultures of abstinence and how these inform understandings of social change in the nineteenth century. In the context of modernity, it also examined the use of modern idioms – such as newspapers, publicly reported speeches and wide circulation pamphlets – within a wholly modern urban context. These constructed and operated thoroughly modern mechanisms of shame (thus, unlike pre-modern conceptions of shame) in that they allowed individuals to be appalled by the moral behaviour of people they had never met. Finally, there was an exploration of the ways in which shame may have come to be deliberately submerged by the conscious actions of modernisers of various kinds at the end of the nineteenth century. Their ideologically motivated attempts to remove barbed aspects of shame from the study of folklore indicate a genuine historical, and arguably historiographical, reason for shame’s consignment to a role in the primitive past.24 While study of this area is underway, it is imperative that we seek to sketch the future directions of research and how consolidation of the modern study of shame might be accomplished. This needs to consider three related areas. The first of these is the construction of an agenda for the study of shame with a clear sense of what it can illuminate. The second is to consider the other places that a historian might look in pursuit of this ‘social emotion’ and its real effects. Lastly, such an agenda needs to appreciate, and be inventive with, the sources it might use to investigate the phenomenon of shame in its many guises. An agenda for the study of shame needs to have a clear sense of what the phenomenon can illuminate. A particularly important element here is to

52 David Nash suspend notions of the modern and primitive that might otherwise colour the analysis an individual might offer. By examining real situations the historian eschews the problems associated with orthodox ideal-type readings of how individuals should behave in a given society that has been characterised and categorised by other disciplinary perspectives. Thus, for the historian, a supposedly ‘modern’ reaction by an individual alongside a behaviour that might be characterised as ‘primitive’ should henceforth be capable of being accepted and should present no analytical problems – both behaviours are thus real products of a specific historical context.25 Shame should also be informative about the location of authority within modern society. Whether power was centralised or dispersed, a frequent mode of analysis beloved of Foucauldians, might well become evident in episodes where individuals have to control, submerge or indeed let out and articulate shame. This also asks questions of how effective forms of central authority might have been in policing people or persuading them to police themselves. The nineteenth century witnessed the reach of forms of advice in a veritable tirade. Pamphlets, conduct books, newspapers homilies and religious sermons produced a considerable body of theorising about behaviour and the role of governing passions alongside the necessity for their subjugation, whether this was dispensed in a didactic or consumed in a self-reflecting manner. This also opens an intriguing agenda about discussing how far individuals invented and moulded authority for themselves. Self-help and autodidact life choices may well have had somewhat different conceptions of shame and how it could operate independently of other conventional systems of authority that were trying to offer a more conformist and mainstream definition of shame and model behaviour. Related to this idea of governance it would be pertinent to ask questions about the mechanisms people adopted to control the behaviour of themselves and others. Certainly, a history of the nineteenth century can see traditional methods of shaming (the pillory, rough music, the skimmington ride and the scold’s bridle/branks) augmented, and in many respects supplanted, by the assault upon reputation through new media. However, aspects of identity around class, ethnicity and gender would also have further influenced where shame appeared and conceivably the forms it took. More needs to be known about how these dynamics may have been causal factors in demonstrations of, or conscious feelings of shame, whether enacted against individuals or internalised by them. A history of shame across the nineteenth century also needs to examine what Elias termed the shifting thresholds of repugnance. This, at first sight, would seem to justify aspects of the ‘civilising process’ narrative and teleology. However, this is precisely why investigation of repugnance, and triggers for such feelings, would be so potentially useful for scholars to analyse. It would not be at all surprising to see such thresholds move at uneven rates within different geographical regions or countries. Perhaps, more importantly, significant evidence may be found that questions the whole idea of thresholds of repugnance, as indeed a teleology of any sort. Sources may reveal that

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53

thresholds retreat in the face of a renewed sensibility that is less sensitive or conscious of repugnance, or even cares little about the concept. This again could be related to a whole host of factors that only close examination of actual episodes would realistically uncover. If these thresholds of repugnance were in a sense to be regularly shifting and become obvious especially because they are contested, then this would further problematise the range of ideas that argue for a teleological and ultimate arrival of modern behaviour and a civilised modernity. A corollary of this last speculation is that if such thresholds of repugnance were capable of being in flux, then an appreciation is also needed of what this might do to some of the established histories of politeness. These trace alterations in the flashpoints of bad behaviour to show the waning of tolerance of the cruel as well as physically and psychologically damaging behaviour within the family, marriage or other kinship networks. Currently, this historiography is unproblematically teleological with changes in behaviour generally cited as progressive and unequivocally sustained. Once again, a comparative perspective would also significantly enrich analysis here and would allow us to get much closer to a more satisfactory historical perspective upon behaviour patterns and the many variegated expectations of these. Perhaps the most important question of all, which arguably most of these speculations are building towards, is to ask the question of where shame, now uncovered from attempts to hide and ignore it, may fit into our spectrum of the history of modern emotions. Henceforth it would become necessary to think about how shame, in its modern guises, fits in with the other emotions we are aware of. It may still perhaps have a complex relationship with guilt that would need systematic study and unlocking. Does the relationship between shame and guilt mirror a more complicated version of the division of public and private that its originally theorised stark dichotomy seemed to suggest? Or does the reinvention/reinvigoration of shame within new media mark it out as a species of publically stage-managed reaction to scandal and celebrity, requiring a closer engagement with the work of Habermas? Does the power of shame lurk within the modern as the ultimate social emotion, almost lying dormant like some form of ultimate punishment? Certainly, one reading of the reform of punishment and its capacity to subsume and make active use of aspects of shame is to see it as a potentially intrinsic social sanction within both supposedly ‘primitive’ and supposedly ‘modern’ society. There may also be a latent or substantial gap in the operation of shame and our knowledge of it. While public tolerance of behaviour, appearance or lifestyle may become more relaxed, the private aspects of shame may not advance quite so quickly, leaving a disparity between a benign public image of an individual and a disparaging personally held private one. Confrontations with an unsatisfactory version of the self have not after all been wholly secularised and the nineteenth century’s evangelical revivals may have provided moments when this flawed self was foregrounded for individuals. Moreover, in other areas, beauty

54 David Nash treatments, slimming regimes and various forms of therapy represent methods of dealing with shame induced by the conception of the flawed self.26 Similarly, just how far shame lies behind the outbursts of other emotions we are likely to encounter is a further source of potentially fruitful insight. The capacity for other outpourings of emotion, within wholly modern scenarios, to have their roots in feelings of shame needs much closer scrutiny and this may yet produce some surprising and indeed perplexing results. Likewise, the ultimate modernising of shame, which comes upon civilised society apologising for collective action, also needs to be considered and analysed. Examining apologies for the action that societies and institutions have taken in the past against minorities or members of that society would further produce insights that further problematise the interface between shame and guilt.27

Ways forward Where now might the inquisitive scholar seek to find elements of shame at work in nineteenth-century society, not simply in Britain but also in other European countries? Certainly, investigations up to this point have revealed the fertile territory inherent in court records of a number of varieties. These have illuminated instances where an individual’s methods of escaping shame have caught them out and resulted in the intervention of authority. Clearly, other areas of behaviour might well provide scope for the appearance of shame in relation to actions taken for a number of wholly ‘modern’ reasons and around more ‘modern’ crimes. Many instances of fraudulent behaviour in the nineteenth century, for example, were inspired by a desire for social acquisition and respectability, which too often outpaced the capacity of the individual to provide this for themselves through lawful means. There was also a systematic establishment of new ‘courts’ of judgment, which arguably had little to do with the criminal justice process. The new idioms of trial by journalism and the sophisticated mechanism of court reporting were enabling mechanisms in allowing gossip and scandal to become genres of their own. Yet the criminal court was also a place where norms were re-established. Very often courtroom decisions and verdicts can be read as amounting to a pronouncement on the nature of shame and the feelings of individual protagonists within a particular case. Similarly, there must also be significant scope to investigate the phenomenon of the contrite and ashamed miscreant who acknowledged the transgressive nature of their behaviour or reactions, carrying this further into their own personal punishment. In connection with this, some study of recidivism viewed through the prism of shame would also yield new insights into the management (or otherwise) of errant behaviour. This would also suggest that the relationship between impulsiveness and shame indeed deserves further investigation. Certainly, this reaction was seen as a component part of reactions to the act of suicide in Victorian Britain.28 Indeed, suicide itself may also provide an unfortunate outlet for shame as a

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55

society found problems with mitigating it in other ways and certainly this consideration must be borne in mind alongside ideas of improvement, class and gender identity, and moral propriety. Moreover, damaged and thwarted expectations within gender or social groups may have activated the shame that preceded suicide.29 The Victorian discovery and ‘exaggeration’ of the suicidal tendency may have produced a growing leniency towards its policing and punishment, but may indeed have done little to mitigate or remove the individualised shame that provoked suicidal feelings.30 Where institutions increasingly came into contact with the public at large is also a further instance where investigations of how shame entered the purview of nineteenth-century life. It has been noted how punishment regimes (in the abstract) conceived of shame as an intricate and vital part of penal systems. We would do well to know more how these ideas spread throughout Europe and how plausible they seemed to each different society at the precise period of reform and indeed beyond this. While it was clear that those who theorised about punishment felt comfortable that they had strictly and humanely reconfigured it to perform new and useful functions for society, the questions remain about how these found their way into such systems when they were constructed and implemented. Were those in charge of penal policy, institutions and systems wholly convinced they understood shame as characterised in these writings? Did they maintain and try to realise the same idealism that saw reform of shame punishment as beneficial for all? Lastly, it would be invaluable to know just how far shame actually functioned as the penal theoreticians of the end of the eighteenth century supposed it would. Were criminals throughout Europe truly brought to a realisation of their culpability and wretchedness by the systemic and calculated application of shame on the private incarcerated conscience? Importantly, the first half of the nineteenth century was also the age when systems of poor relief were reformed in countries throughout Europe. Some of these were indigenous responses, while others were, to a greater or lesser extent, modelled on practice elsewhere. The philosophy behind them was a tightening up on the contentious practice of outdoor relief that occurred in response to a perceived drain on local and national capital resources. Certainly, in the Poor Law (Amendment) Act 1834 in England the idea of ‘less eligibility’ was a key component of attempts to manage supposedly excessive burdens posed by paupers. However tightly this regime was applied (and scholars have spent much time indicating that practice was anything but uniform or consistent), it clearly meant that regimes of scrutiny and deterrence were important factors in managing claims for poor relief. Shame here had a dual existence. It was clearly theorised at an official level and a language was constructed about it in relation to the categories of the ‘deserving’ and the ‘undeserving’ – categories as a later chapter in this book testifies left a significant footprint across Europe. This modernisation of shame and the use of it to achieve other behavioural outcomes obviously mirrors the arguments constructed around the new function of incarceration. Certainly, it is clear that

56 David Nash shame must have functioned as a dynamic within the process of applying for poor relief, making such encounters more confrontational and potentially more emotionally driven. Unquestionably, there is ample evidence that the deterrent aspect of the workhouse was internalised as a desire to avoid the shame or stigma of incarceration as a clear consequence of an unacceptable level of poverty. In England this was potentially exacerbated by the anatomisation of the poor, which occurred as result of legislation (the Anatomy Act 1832) and sought to provide the medical profession with fresh cadavers for experimentation.31 The shame provoked by this also provided one impetus for the innumerable burial clubs and insurance schemes that aimed at staving off the hated pauper’s burial. In an age that believed in the literal resurrection of the body, this brought the issue of shame terrifyingly close to the heart of poverty. This also suggests that investigating the shame associated with pauperism should be increasingly more sophisticated and coherent. Moreover, such investigation also needs to appreciate that shame could also be used as a weapon, around poor relief, to fight back against breaches of natural justice. The flavour of both of these is present in this stanza from an 1842 poem by William Gaspey entitled ‘Poor Law Melodies’: Oh! there are those in power who seek The poor and aged to oppress, Who glory when they crush the weak And make them feel their helplessness. And they would tear thee from my side, To join the wretched Union slaves, Almost the light of heaven denied – Far happier they if in their graves!32 This indicates that the issue of shame and stigma around poverty may have obviously sharpened as a result of species of modernisation and utilitarian reform. This area also provides a reminder that any history of shame should also consider its ability to be communicated and transmitted to future generations as a species of especially potent collective memory that becomes hard to expunge. The National Health Service in Britain during the first fifty years of its existence after 1947 was frequently hampered and inconvenienced by the wishes of patients to avoid ‘confinement’ in certain hospitals and care homes rather than others. Those premises that were unpopular with patients and potential patients were those that had previously been workhouse buildings under the poor law regimes. For such individuals, association with these, even years after the workhouse had been decommissioned and the building refurbished, invoked feelings of stigma and shame. One further area for the investigation of personal shame might be associated with the growth and development of longer and more intense schooling throughout Europe, alongside the capacity for late nineteenth-century

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57

registration and census initiatives to confront the issue of the literacy of individuals. There are plenty of examples of those who hid their illiteracy or conversely hid their literacy from the prying eyes of census enumerators, church wardens, parish overseers and other forms of authority. Similarly, individuals were wholly capable of hiding their reading and intellectual accomplishments from others simply as a matter of discretion and habit. Jonathan Rose cites one Scottish labourer, John Bethune, whose writing of a guidebook Tales and Sketches of the Scottish Peasantry (1838) was conducted ‘as stealthily as though it had been a crime punishable by law . . . as soon as the footsteps of any one were heard approaching the door, copy-book, paper, pens, and inkstand, were thrust under (a) covering, and before the visitor came in’.33

Conclusion It can be concluded that shame in the post-1800 period is at last coming to be recognised and acknowledged. Its history transcends the social science models that have seen it as a primitive hangover left behind by teleological theories of social, psychological and civil development. While past work supported the many teleological narratives of modernisation and civilisation, it is time to question the enduring validity of these and to explore new explanations of potential partial or uneven development. It is imperative that this is done through the exploration of real examples where the nuances and context can be brought to bear, and to place their weight upon analysis. Shame’s influence as ‘the social emotion’ is becoming crucially recognised and its endurance beyond the coming of modernity is starting to influence areas of social and cultural history. However, a full and complete appreciation of its magnitude across chronology and geographical space is still required, and accomplishing this will eventually be the work of many hands and disciplines.

Notes 1 K. Riezler, ‘Comment on the Social Psychology of Shame’, The American Journal of Sociology, 48(4), 1943, p.458; 457–65. 2 Rousseau’s Confessions, cited T.J. Scheff ‘Shame and Conformity: The Deference– Emotion System’, American Sociological Review, 53(3), 1988, pp.399–400; 395–406. 3 The Oxford English Dictionary notes shame to be ‘The painful emotion arising from the consciousness of something dishonouring, ridiculous, or indecorous in one’s own conduct or circumstances (or in those of others whose honour or disgrace one regards as one’s own), or of being in a situation which offends one’s sense of modesty or decency.’ 4 S.P. Garvey, ‘Can Shaming Punishments Educate?’, University of Chicago Law Review, 64(4), 1988, p.766. 5 Norbert Elias, The Civilising Process, Edmund Jephcott (trans.), Eric Dunning, Johan Goudsblom and Stephen Mennell (eds), Oxford: Blackwell, 2000. 6 See ibid. For ‘behaviour at table’, see pp.72–85; for ‘changes in attitudes towards the natural functions’, pp.109–14; for ‘on blowing one’s nose’, pp.121–6; for ‘on

58 David Nash

7

8

9

10 11 12 13 14 15 16 17 18 19

20 21 22 23 24 25

spitting’, pp.129–32; for ‘on behaviour in the bedroom’, pp.136–7; for ‘changes in attitudes towards the relations between men and women’, pp.142–60; for ‘changes in aggressiveness’, pp.161–72. The writings of Foucault are numerous and are supplemented by a number of interviews clarifying and developing his ideas further. However, for a way into his method and parts of his analysis which amounted to a sustained critique of the Enlightenment, see M. Foucault, Madness and Civilization: A History of Insanity in the Age of Reason, London: Tavistock, 1965; Discipline and Punish, Harmondsworth: Penguin, 1991; Archaeology of Knowledge, Abingdon: Routledge, 2002; The Birth of the Clinic, Abingdon: Routledge, 2003; The Order of Things, Abingdon: Routledge, 2001. For material on the construction of bourgeois society in late eighteenth- to early nineteenth-century England, with an appreciation of its attendant anxieties, see Leonore Davidoff and Catherine Hall, Family Fortune: Men and Women of the English Middle Class, 1780–1850, Abingdon: Routledge, 2002. For works that are important in this analysis, see Erving Goffman, The Presentation of Self in Everyday Life, Harmondsworth: Penguin, 1959; Stigma: Notes on the Management of Spoiled Identity, Harmondsworth: Penguin, 1963; Behaviour in Public Places: Notes on the Social Organisation of Gatherings, Free Press, 1963; Interaction Ritual: Essays on Face-to-Face Behaviour, Princeton, NJ: Princeton University Press, 1971. See John Braithwaite, ‘Shame and Modernity’, British Journal of Criminology, 33(1), 1993, 1–18. This area is best approached through J. Habermas, The Structural Transformation of the Public Sphere: Inquiry into a Category of Bourgeois Society, Cambridge: Polity Press, 1992. W.I. Miller, Humiliation and Other Essays on Honour, Social Discomfort, and Violence, Ithaca, NY: Cornell University Press, 1993, p.199. P. Langford, ‘The Uses of Eighteenth Century Politeness’, Royal Historical Society Transactions, 12, 2002, pp.311–31; E. Foyster, ‘Creating a Veil of Silence? Politeness and Marital Violence in the English Household’, ibid., 395–415. David Nash and Anne-Marie Kilday, Cultures of Shame: Exploring Crime and Morality in Britain 1600–1900, Basingstoke: Palgrave, 2010. Ibid., Ch. 2 Ibid., Ch. 3. Ibid., Ch. 4. Ibid., Ch. 5. It is interesting to note that even John Braithwaite, the modern doyen of those critical of ‘reintegrative’ forms of punishment, nonetheless followed the orthodox chronology of criminology. Braithwaite accepted the apparent historical demise and failure of stigmatisation in punishment. However, he saw reintegrative forms as wholly dispensing with shame and transcending it, if only until the late twentieth century when he was a leading figure in reactivating critiques of incarceration. The argument discussed here contradicts this chronology and suggests a more obvious, and self-conscious integration of shame in the nineteenth-century reform of punishment. See Braithwaite ‘Shame and Modernity’. Nash and Kilday, Cultures of Shame, Ch. 5. Ibid., Ch. 6. Ibid., Ch. 7. Ibid., Ch. 8. Ibid., Ch. 9. It is worth considering how the historiography of politeness actively enhances the ‘shame’ replaced by ‘guilt’ paradigm. Similarly, the uncritical acceptance of Elias and his theories by some historians of crime likewise accept a teleological transformation of ‘shame’ into ‘guilt’.

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26 See Donald Capps, ‘Sin, narcissism, and the changing face of conversion’, Journal of Religion and Health, 28(3), 1990, 233–47. 27 Here we might think of the idea of collective shame, guilt and atonement for the Holocaust of 1941–45, for the Catholic Church in Ireland’s failure to tackle the problem of paedophile priests, for the Australian and British governments’ respective apologies for the mistreatment of forced migrant children. 28 See Barbara T. Gates, Victorian Suicide: Mad Crimes and Sad Histories, Princeton, NJ: Princeton University Press, 1988, pp.16–17. 29 See, for example, Epilogue in Georges Minois, History of Suicide: Voluntary Death in Western Culture, Baltimore, MD: Johns Hopkins University Press, 1999, for material on the prevalence of single male suicides in early nineteenth-century France. 30 Gates, Victorian Suicide, pp.166–7. 31 For more on this area, see Ruth Richardson, Death Dissection and the Destitute, Chicago, IL: University of Chicago Press, 2001. 32 William Gaspey, Poor Law Melodies, and Other Poems, London: Longman, 1842. 33 Jonathan Rose, The Intellectual Life of the British Working Class, New Haven, CT: Yale University Press, 2002, p.60.

Part II

Rethinking blame

4

The shifting nature of blame Revisiting issues of blame, shame and culpability in the English criminal justice system Judith Rowbotham

Introduction When we criminalise acts or individuals, the issues are complex, and for that reason it is worth starting this analysis with some of the relevant basic facts and assumptions that operate in this area. At its simplest, a crime is an act that is recognised as injurious, not just to the individual or individuals directly targeted by the act, but also to the welfare of others, amounting to conceptions of both the community and/or the state. What contextualises this, both for consumption by the wider community and in order to ensure its support for a criminal justice system, has been a blaming and shaming process, focused on types of crime and individual performances of particular crimes. There has been no fixed certainty about what does or does not constitute a criminal act. However, one of the features of modernity (not solely in Western states) has been an increased imperative to promote order by expanding the criminalisation process.1 While this imperative has been manifested by states, it has generally had the acquiescence at least of society overall for this development. This process has not concentrated simply on regulatory offences, or acts traditionally likely to be considered threatening to the state, from murder to treason. Increasingly, the focus has come to be on behaviour involving interpersonal violence in some way. This has had interesting implications for the ways in which societies and states have used the concepts of blame and shame to frame the discourse on crime in general, as well as on individual offences. This chapter undertakes a case study of the English experience of these issues, which can be used to point up both difference and contiguities.

Criminalisation in action In England, behaviour that in the eighteenth century would have attracted little attention or disapproval was, by the middle of the nineteenth century, being criminalised. This process of an expanding criminalisation of aspects of individual conduct in daily life has continued, relatively unabated, to the

64 Judith Rowbotham present.2 A study of the nineteenth-century context in which the relevant legislation governing such conduct was conceptualised, processed and enacted reveals that this relates to the broader development of a new consciousness among social and political elites. This manifested itself in the shape of a perceived need for the state to assume a direct responsibility for regulating individual choices and actions, resulting in pressures on the state to enable this through formal regulation to compel outcomes. The move from permissive to compulsory legislation in areas such as urban infrastructures and public health, including the compulsory Vaccination Acts of the Victorian era, was accompanied by a similar will to particularise in ever greater detail the nature of offensive behaviour on the part of individuals within the criminal law. This enhanced the state’s involvement in the practical regulation of such behaviour via its criminal justice process.3 It seems that, as the state has turned to social welfare legislation as a way of improving the life quality of individuals, an accompanying trope has been the will to associate such ‘generosity’ with expectations of increased conformity to standards of behaviour that befitted the improved welfare provision. There was, for example, great irritation at the failure of the labouring poor to take up the offer of free vaccination against smallpox after 1850, with an accompanying persistent refusal on the part of authority (political and medical) to accept that working-class ‘conscientious objectors’ to vaccination were being anything other than obstinate and shiftless.4 There was also regular condemnation of the group dubbed ‘refractory paupers’ – those who rejected workhouse rules and sought to make trouble, such as Mary Hatton and Ellen Brown. In 1865, these ‘middle-aged women’ were charged with destroying their clothing in Rotherhithe Workhouse because they had been denied a settlement in England and told to walk to Liverpool, where they would be returned to Ireland. Refusing to listen to their complaints on the grounds that it was ‘useless attempting to argue with persons like the prisoners’, Mr Traill (the Greenwich stipendiary magistrate) sentenced them both to ten days’ imprisonment with hard labour, on completion of which they still had to walk from workhouse to workhouse en route to Liverpool.5 A will to punish such recalcitrants severely for such ingratitude is evident in most cases – witness the later treatment of Anne Nagle in 1880. The Westminster stipendiary magistrate fined Nagle a fee of £5 (with the option of a month’s imprisonment for failure to pay) for being a refractory pauper, a fact evidenced to him by her ‘taking two bottles of gin to St George’s Workhouse, Chelsea’.6 It is plain that the imposition of a fine was a fiction as, being a pauper, such an immense sum was beyond Nagle’s means and so she went to prison for the month, at a time when four-fifths of all Victorian prison sentences were for less than four weeks.7 The consequence of such attitudes towards socio-cultural non-conformity has been the criminalisation in individuals of certain previously ‘normal’ social behaviours in the interest of a supposedly broader social welfare.8

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Culpability, blame and shame This has meant that the criminal justice process has become an increasingly complicated affair. If, as a process, criminalisation has always gone beyond the purely legal, or culpable, the modern reality is that a balance in terms of official and societal reactions towards the contextualising tropes of blame and shame is increasingly difficult to identify, let alone maintain. Culpability may be defined as the legal (or legally derived) concept of deciding guilt or innocence in terms of the outcome of a criminal charge, where guilt is formally seen as representing legal responsibility for an offence that may, or may not, be recognised as such by public opinion but which is adjudged by the law to have caused harm to the state and/or the community. In this, it is relatively easy to identify a role for blame, but where does that leave shame, in the public senses discussed elsewhere in this volume?9 In reality, the wider and more public remit of the procedures amounting to criminalisation looks further than the basic legal decision. The terminology of blame and shame describes essentially emotionally grounded and publicly revealed moral judgements that are invoked to add texture to a legal decision, aiding the explanatory and justificatory processes that are an essential part of the law’s public performativity. For instance, in societal estimations of human actions, both crimes and prosecutions can be assessed as ‘blameworthy’, being driven by ‘negative’ or unacceptable emotions, including greed or malice. These emotions distinguished accidental from criminal harm, whether that harm was deliberately or culpably negligently imposed. It is in this identification process that the origins of the conceptualisation of mens rea – the mindset necessary within the modern state for the identification of a criminal act – lay. Historically, the modern significance of mens rea to English comprehensions of criminality was established as part of the process of the formalisation of the criminal justice process as a discrete area of law during the eighteenth century in particular. Mens rea constituted a key technical element in the development of the adversary trial process, enabling judges and magistrates to allocate fault or blame as part of a concrete process.10 The origins of identifying an individual mindset as a distinguishing factor in criminality, however, lay in the medieval moral judgements that looked less to action and more to emotion, notably to expressions of malice and similarly immoral and so blameworthy attitudes as impulses to wrongdoing. It ensured that it was not the individual but the wider community that decided on the relative shamefulness of an action. The continuation of this informal social tradition adds an enduring moral complexity to the broader communal understanding of what differentiates a crime from other harmful action, thus laying the foundations for the allocation of blame and, on that basis, of shame or stigmatisation. Shame is not, in itself, a modern legal concept and yet it remains intrinsic to the socialisation of most criminal justice processes, as the unspoken popular moral justification to contextualise the formal criminalisation of certain activities. At any time, and in any place, that moral system may shift,

66 Judith Rowbotham but in one form or another, it remains a constant theme. In today’s relatively secular society there is a diminishing likelihood that states, in particular, will label offences in ways that refer to their ‘sinfulness’. However, a humanist moral expectation of ‘good’ and ‘bad’ conduct still remains in the thinking of both states and communities, if less explicitly voiced than in a more religious age such as the Victorian era in England.11 Shame is generally seen as a consequence of blameworthy conduct – those blamed for criminal acts have been expected to take responsibility for their offensive behaviour by demonstrating ‘shame’. Modern media presentations of criminality still wish to insist on the importance of blaming and shaming,12 because feeling shame has thus traditionally been accepted as a preliminary step towards a reintegration of offending individuals into communities.13 The popular expectation is that a combination of shame and remorse have a powerful impact on the likelihood of desistance from crime and social recognition of a reform, resulting in communal reintegration, making shaming a quintessentially social affair, potentially.14 However, the level of shame expected is now heavily dependent on the amount of blame formally allocated to an individual on the basis of culpability for a crime, because that proportionality in turn governs expectations of formal as well as informal sentencing. There is an unease within the formal mechanisms of the modern criminal justice system about the independence of the shaming process from formal judicial practices. Yet it retains a role within supposedly reformed and modernised versions of justice and punishment because of the need to retain the support of the wider community for the criminal justice process. Thus fundamentally, the identification of an action as ‘shameful’ remains crucial to a popular comprehension of a deed as criminal.15 The basic response of any society, and any socially recognised exercise of institutional authority, is to demand some form of consequential response aimed at those performing a crime. This takes the shape of a penalty or punishment, and that response is likely to have a retributive or reformative (i.e. a moral) dimension, according to the amount of blame allocated to the various parties.16 Thus, crime has now, and always has had, both a physical and a moral dimension to its active and consequential realities. In sum, this amounts to the process of criminalisation. Criminalisation is associated with a longstanding expectation that individuals who commit crimes, especially crimes where there is no accepted justification to mitigate the impact of the crime, must be blamed for their actions. So, as a consequence of that blaming process, they must suffer unpleasantly to a degree in order to make some recompense to society, as a form of ‘justice’. The perennial issue is not just who should be responsible for legislation to criminalise certain behaviours, but also who should have the prime responsibility for managing the societal recompense made by those convicted of criminal conduct.17 Should it be the offended community in a direct manner, or an indirect one, through the mediation of the state’s formal criminal justice system? The issue of where blame lies and how to apportion shame is key to understanding the respective responsibilities of state and community in the criminalisation process.18

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Apportioning blame and culpability: managing shame As already mentioned in the Introduction to this volume, there are some competing issues here, which have been debated in the West since the days of classical Greece, including the idea of lex naturalis. Yet is this debate really central to popular as well as legal understandings of a criminalisation process? For those with a historical perspective and an interest in such issues in the present, questions occur about when and how states should intervene.19 These are nuanced by a consciousness of past community resentments at overweening intrusion by authority that can undermine the practical effectiveness of the criminal justice process and so the reputation of the state. Questions historians ask can often be reduced, in terms of their possible implications, to the issue of whether, in practice, it has not proved to be ‘better’ justice when the state largely leaves many areas of everyday conduct up to the judgement of communities. Historically, however, states have shown themselves increasingly reluctant to be so laissez-faire about this aspect of social management. A clear testament to this reality is provided by the increasing breadth of remit and thematic sophistication of Western criminal justice systems as they have proceeded to criminalise more and more areas of everyday life, not simply over the last centuries but the last millennium. Within most state-sponsored criminal justice processes, all parties are required to accept the ability of that system to decide on the ‘truth’ of a crime. In the adversarial English legal machinery the system pronounces judgment on the competing narratives put forward by prosecution and defence. Once convicted, there is an implicit expectation in most formal criminal justice systems that the convicted individual will then accept his or her fate as the ‘right’ or the ‘just’ outcome. This is because this in turn justifies the actions of the state and, indirectly, of the aggrieved community or individuals in the community – those bringing a prosecution and subsequently labelling convicted parties as ‘criminal’.20 In eighteenth-century England, in the days of the Bloody Code, there was enormous pressure on those convicted to admit their guilt in their own words, especially if they were among the unfortunate 12–15 per cent actually brought to the scaffold.21 It was such an essential part of criminalisation in its widest sense that a sophisticated media industry rapidly grew up around this aspect of the sentencing process. The execution ballad or broadsheet industry flourished, and this media strategy was to pre-prepare the populace for any execution in the expectation that the convicted man or woman should embrace their culpability, identifying the reasons for this as a kind of self-abasement. They would thus establish the customary acknowledgement that their conviction was right and just before their deaths.22 It is worth remembering that the English Parole Board today requires that same acceptance of a ‘just’ conviction before releasing prisoners early from a sentence, and that those convicted of serious crimes such as murder who refuse to make this acknowledgement are refused parole on the grounds of this nonacceptance of guilt. This still remains a key condition for release back into a

68 Judith Rowbotham community that endorsed the initial conviction by supporting the operation of the legal system.23 This helps to explain why, mutually, states and societies could demonstrate, at times such as during the last half of the nineteenth century, confidence in the ability of the criminal justice process to cope with crime and the contextually related process of criminalisation. Consider, for instance, the thinking behind the belief in pre-modern England that ‘murder will out’. If the murderer was not discoverable by human science and will, then the operations of God, in days when the state had a high-profile ecclesiastical as well as a secular aspect, could be relied on to reveal the guilty. One way or another, the state (in this case as God’s representative on earth) would get its man (or woman).24 One of the most enduringly popular tales of murder was the so-called Red Barn Murder of 1827. Maria Marten was shot by her lover, William Corder, but the murder was not discovered until Maria’s stepmother had a series of dreams, in which Maria’s spirit informed her that she had been murdered and her body buried in the Red Barn. This consequently persuaded her husband to investigate. Once the body was found, William Corder was immediately the main suspect, as the barn had been the couple’s usual meeting place and it had been Corder who, since the last time that Maria had left her father’s cottage, had been responsible for vague claims of Maria’s whereabouts and good health – this last claim manifestly false. Corder pleaded not guilty, was tried, convicted and hanged. He confessed his guilt the night before his execution, but implicitly also sought to blame his victim for her fate. They had quarrelled because, he suggested, she was being unreasonable in her demands on him and was also pregnant again. It is interesting to reflect, in terms of the criminalisation process, that this confession of Corder’s has had little publicity and the later versions of the popular tales and plays depicting the Red Barn Murder tend to show Maria as a completely innocent and wronged maiden. However, as a mother already of two illegitimate children by two fathers (one living by Corder’s older brother, the other deceased by William), maiden she certainly was not. But, the traditions of blame and shame demanded from the start that she be cast as a victim. Thus, while the Newgate Calendar, for instance, did mention the ‘unfortunate step’ that ‘ruined the character’ of Maria, its emphasis was on her ‘artless and inexperienced character’.25 What this sordid little murder narrative also reveals is the way in which blame was added to culpability in the daily operation of the criminal justice process and thereby, of the importance of blame to a shared process that was an essential element in making the law, especially the criminal law, acceptable to society in its daily operations. Blame came into play to mediate the respective contributions of the parties to a crime (victims and perpetrators, and even, more widely, states and communities). Historically, blame thus performed a key role in the sentencing process, both socially and legally. Outside the formal court system, that ‘sentencing’ of the guilty involved the more emotional and less obviously legal invocation of ‘shame’. However, in

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English history in the eighteenth, nineteenth and even early twentieth centuries, that emotional and informal sentencing was justified by the assigning, in the courts, of sentencing strategies that were explicitly justified by the allocation of blame. In many ways, therefore, blame has long operated as a key bridging factor in the English system, bringing both the legal and the societal – or popular moral – elements to a point of agreement. In arriving at a position where blame can be appropriately allocated during a criminal action, legal culpability must be decided so that blame can then be introduced as a moderating factor before the shame dimension is invoked. The English criminal law relies on ‘the right to be heard’ (audi alteram partem) of all parties in a case involving a crime, but also of the need for community involvement in some form. Nemo judex in parte sua (no person may judge their own case) is the principle underlying the role of someone in the character of an adjudicator in more minor crimes, and judge plus jury in more serious crimes. This principle was seen as ensuring the key aspects of natural justice from Roman times on, and so in ensuring the acceptability of the criminalisation process.26 In the English system, as part of that process, the representatives of the state in the community – magistrates, judges and juries – agree on the culpability of one party or the other in a criminal case. Once that formality has been decided on, via the adversarial process, the greater complexities of blame come into operation to govern the application of sentencing as a key part in the public criminalisation process. The starkness of the adversarial system’s allocation of culpability is, or can be, mitigated by a process of allocation of blame for a particular crime.27 The question is how far individuals involved as ‘victims’ of crime have contributed to the commission of the offending acts remains to be answered. Did they, or to what extent did they, bring their fate on their own heads? As part of the adversarial process that developed from the late eighteenth century, this examination of the evidence provided by the questioning of witnesses on both sides was presumed to help not just the uncovering of the truth but also the respective responsibility of victim and perpetrator. Here an intricate set of formulae, relating to general issues (class, gender, race, age) as well as to the specifics of a crime, operated within the legal framework provided by the courts to decide how blame should be allocated in individual cases. In other words, the extent to which discretion in sentencing should, or should not, be used and how ‘criminal’ an act or an action then becomes.28

Social dimensions, or making punishments ‘fit’ the crime The allocation of blame is crucial not just to the dispensing of sentences by a formal legal system but also to the more informal, social dimension to any punishment. This is the pressure to feel more or less shamed by committing a particular crime or type of crime in particular circumstances around particular types of people. The criminal justice process in the English state, like that in most Western states, is rooted in what may be called a guilt culture. Deriving

70 Judith Rowbotham originally from Greek dramatic tradition, especially the tragedies,29 the concept of guilt has been seen as central to a subsequent process of criminalisation by a formal legal system through its allocation of blame to the parties involved. As Bettoni’s chapter in this volume shows, it has been argued that as part of a modernising process with more formal justice processes being promoted by states as an adjunct to the exercise of state authority, the culturally contextualising emotion of shame was replaced by the emphasis on guilt. However, as already noted in this chapter, and as further underlined by Bettoni’s chapter in this volume, as well as those of Nash and Kilday, shame has had a resilient, if increasingly informal, role within modern criminal justice processes.30 Shame is accepted by authorities mainly because of its longassumed ability to deter those awarded a shaming identity with a popular aspect from continuing a criminal career. This resilience is rooted in the reality that shame exists also as a wellestablished and effective social management tool for averting or controlling socially, but not legally, ‘bad’ behaviour within families and communities (strategies for enforcing an avoidance of certain types of behaviour and appearance in order to avoid ‘shame’).31 However, in recent times, when the state has assumed more and more responsibility for social regulation, the older habits of communities taking action themselves to criminalise individuals and behaviours in their midst by using shame as the main punishment (after an informal establishment of culpability and blame) has been frowned on. It has been, for the last two hundred years almost, a reality that for shame to be invoked acceptably within such a socially condemnatory process, it has had, in the official gaze, to be invoked solely in association with the formal criminal justice system.32 The state readily assumes the prime responsibility of establishing culpability and blame because that burden enhances its hegemonic power over the daily life of communities. In practice, this has consequently largely limited and shaped the official dimensions to the shaming process into appropriate and approved forms.33 Historically, in England and Wales, for example, the record for the period from the mid-nineteenth century at least indicates that the degree, intensity and extent of shame associated with culpability has been mediated by the proportion of blame that, on the basis of comment made in the courts, the criminal is held to have for his or her acts. After the realisation of that formality, it was accepted that a shaming ritual of some sort could be safely invoked. In a relatively successful criminal justice system, such as operated in Victorian England (with all its flaws), that format worked reasonably well, for most of the time. It is, perhaps, a mark of the lack of success of the current system of criminalisation in the UK that there are now renewed mutterings about the ability of the state to establish an effective criminalisation policy. This happens alongside associated grumblings about the need for communities to take action once more on their own account to deal with crime in their midst – to the growing alarm of the state.34

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Shame has historically been allotted among the players in a criminal drama according to a complex formula that has taken into account general issues (class, gender, race, age) as well as the specifics of an individual crime. The weight given to the various elements in the formula has shifted, as has the estimation of blame, but not culpability as the key legal concept. Much of the focus of scholarship has been on prominent, and serious, crime, yet that crime currently represents typically around 6 per cent of the total crime committed in most Western systems. In England, that percentage has remained relatively stable since the development of the modern criminal justice system there in the middle of the nineteenth century.35 When it comes to serious crime, stereotypically it has been seen as ‘easier’ to consider the full range of evidence involved, since such serious trials – even in the mid nineteenth century – generally took longer than the apparently more perfunctory process in the summary or magistrates’ courts. Thus, the issues of culpability, blame and shame can be explored more readily by scholars relying primarily on an examination of cases from the Assizes.36 However, looking at nineteenth-century cases in the English summary courts, especially through the lens provided by Victorian media reportage, indicates the extent to which blame was a key element in the criminalisation interface between the legal system and wider society. Magistrates (especially the legally trained stipendiary magistrates who were an important part of the urban summary court system) were the major intermediaries between the state and the community, given that all criminal justice prosecutions started in the summary courts. Their powers of judgement and the exercise of discretion enabled them to steer a nuanced path that balanced satisfying the needs of the state to manage the criminal justice process and to be identified as the main providers of ‘justice’ alongside the needs of the community for a comprehensible and acceptable justice process. The Jervis Acts 1848–49, which gave a modern face to the criminal justice system in England, were radical in the emphasis they placed on the summary courts as the main dispensers of justice.37 However, the system could only work when it had the confidence of both the state and the wider community – and the daily diet of media reportage from the summary courts reveals the complex and sophisticated interface that magistrates created in this period between the competing demands of the state and the people.38 What this reveals is that the involvement of the state in the criminalisation process covering ‘ordinary’ or everyday crime altered the nature of shame and so the nature of criminalisation. For instance, it has been said that the modern criminal justice system depends on a public stigmatising of ‘culprits’ and that is read, generally, as being the same as in more traditional, communityorientated shaming rituals.39 However, stigmatisation is not the same as shaming, although there is clear overlap in terms of the official and communal disapproval of acts and individuals. The real issue is that stigmatisation involves a marking or branding process, physical or moral, that is more enduring than shaming. Historians working in the period up to the early

72 Judith Rowbotham nineteenth century have shown that for most minor or summary offences, shaming – especially when community managed – involved a ritual humiliation that was an end in itself, and undergoing such a process was the start of an individual’s community rehabilitation. Stigmatisation was reserved for those whose actions placed them outside the community permanently, and often, in reality, targeted those already outside, such as vagrants, and identified members of a supposed habitual criminal class.40 At the start of the twenty-first century, the situation is very different. Criminalisation seems now to be associated more with stigmatisation than shaming, even for ‘everyday’ offending. The consequent problems range from encouraging a more persistent recidivist pattern among offenders (lacking accessible forms of rehabilitation into workplace communities in particular) to a gap in perception of the seriousness of offending between society and the legal system. Here, the reluctance of local communities to shame – or rather, arguably, to stigmatise – their juveniles when caught out in offensive behaviour has provided a moral panic. This is a real problem for the organisations charged with policing communities in various ways, because of the need for such policing strategies to command the broad support of communities.41 Manifestly, today, they often fail to win such support, as does the legal system and the result is a refusal of elements of society to join in with the necessary end part of the criminalisation process – the shaming of individuals convicted of wrongdoing by the criminal justice system.42 The result is a worrying disjuncture between official and societal perceptions of how to use a criminalisation process, instead of agreement. The extent to which the current scenario represents a change as much in community as in official attitudes is emphasised by an examination of crime reportage from the last half of the nineteenth century. Such reportage, especially that from the summary courts, reveals that a key issue for a legal system that ‘worked’ to assure communities that justice was being done in the courts, was ensuring that stigmatisation was only employed when the allocation of blame to the respective parties in a trial warranted an enduring public aspect to the shaming element in the punishment process. It was, in other words, important to identify if there was a culprit and, if so, who was that culprit. It was not necessarily the individual actually convicted under the strict letter of the law. One typical case underlined this – heard before Mr Arnold, the stipendiary of Clerkenwell in 1870, as reported in the Daily Telegraph, which was then still a paper aimed at a working-class readership. It commented that: On Saturday, Mr. Arnold had an opportunity of showing that the process of imprisonment for debt for small amounts, which works some hardship among the really poor, who are not paupers, could be rendered very harmless indeed in the hands of a magistrate who was determined to take the circumstances of the defendant as well as the strict letter of the statute into account.

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It should be recalled that then, as now, imprisonment even for a brief period was likely to carry a stigma where it was associated with a financial matter (not always with interpersonal violence) that could make it difficult to get further employment after release, compounding the difficulties of those struggling to cope. In this case: Mr. Edmund Buckland, a commission agent, of Battersea, was summoned on behalf of the London Gaslight Company to show cause why he should not be committed to prison in default of paying the sum of £9 0s 9d ordered to be paid under a summons for gas consumed. Culpability was thus legally established: Mr Buckland was a defaulter – he ‘admitted the debt’ and, as the Daily Telegraph noted, ‘ordinary procedure . . . is generally very severe’, meaning a period of imprisonment with all the ramifications that would have for his continued employment and for his family. However, in this case there was seen to be an ostensible and a real culprit. Ostensibly the blame for the criminal action lay with Mr Buckland; in the eyes of Clerkenwell Police Court in 1870, it was the London Gaslight Company that was really blameworthy. As the newspaper report reflected: Gas companies are, as a rule, so unsparing in their exactions and so summary in their proceedings that they can no more look for sympathy than a solicitor need do who sues for payment of an abnormally long bill. It must be remembered that they can always protect themselves by insisting on a deposit should their customer seem likely to be a large consumer, and then it is their own fault if more than a quarter is ever in arrear, since they can cut off the supply, and gas, though scarcely so indispensable as water, is, to those who have used it, a necessary of life. . . . How many . . . would cheerfully pay every quarter in advance if only assured that they paid for no more than they consumed in the shape of light, and if the mystery of the meter, whose dial-plate runs up thousands of feet with such magical rapidity were explained to their satisfaction! Mr Arnold consequently ‘expressed his intention to make full use of the discretion conferred by the new Masters and Servants Act, which prescribed the same form of procedure in Police courts as that used in County courts for the recovery of debts’. The ‘acute representative of the gas company’ then enhanced his share of the blame because he ‘pointed out that the powers vested in a County court judge could not be exercised in this case, inasmuch as gas companies had an Act of their own that provided that in default of distress the magistrate should – not might – commit’. To the cheers of the court, ‘Mr. Arnold allowed that the clause was imperative, but being satisfied that the defendant could not pay, he ordered imprisonment for a day only’, a clear acknowledgement through the reportage that it was the actions of the company and their representative that were stigmatised as being shameful, not those of the unfortunate Mr. Buckland, earning £1 per week, who was ‘locked up till 5 o’clock and discharged’.43

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Public dimensions What reportage from the Victorian summary courts underline is that there was an extensive sense of community involvement in the daily proceedings before the magistrates, whether they were stipendiaries or benches of lay magistrates. The staple diet of these courts included cases where there were many actions that required the presiding magistrate(s) to make judgments that went beyond a responsibility for adjudicating on the legal culpability in any case. For the most part, magistrates (especially, but not exclusively, the urban-based stipendiaries) made it plain, in their comments on a case, how they were allotting blame and how this affected the actual sentence passed, especially in cases of violence. The Offences Against the Person Act 1861 is important because it confirmed the summary nature of most everyday interpersonal violence, permitting the solution to any incident brought before the courts as a ‘crime’ to be worked out visibly. In most cases of trials for summary violence of some form, conviction and the reasons given by the magistrates for that conviction and the subsequent sentence sent a signal to the wider community about whether or not to add on a societal process of shaming or in the worst cases, of stigmatisation, of an individual, and indeed of his or her family.44 The process of allotting blame in a legal framework was crucial, as were mechanisms for publicising that process. It was a formula for creating order out of the disorder of crime, as well as a tried and tested deterrence strategy, by promoting certain ways of understanding (via the media of the day) how and why a particular action amounted to a legally defined criminal event. It did so because, potentially, it enabled the continuation of a high level of community involvement with, and approval of, the criminal justice process in that it could permit (even encourage) the shaming or stigmatisation of the most blameworthy individuals in a case. Therefore, acting as a mediator between the official and the popular perspectives to criminality in this respect was the modern media. What made the modern media valuable to state authority was that it could provide what was, to a considerable extent, a uniform approach to applying a blame formula, but it did so in ways that actively invoked the approval of the wider community for the official criminal justice process. Thus, in England a feature of the modernising of the criminal justice system, involving an emphasis on the summary courts, was the deliberate promotion of a dissemination of the daily events in those courts to not just a local but also a national (possibly international) audience. The opinionated commentary that contextualised this reportage could also indicate and steer the approved forms of community shaming or stigmatisation that could acceptably accompany a formal sentence.45 The will to seek precedents in law spread to societal judgements on offenders via this modern media reportage network because so much of that reportage was done by lawyers.46 In previous, less expansive eras (in terms of media coverage), local communities had generally worked out their stigmatisation or shaming policy with reference mainly to

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local issues and a personal knowledge of the individuals involved, rather than accepting a more stereotyped ‘top-down’ set of judgments. It worked in England and Wales because, from the mid nineteenth century, in the aftermath of the Jervis Acts, magistrates became entrusted with over 90 per cent of the everyday decisions in the operation of the criminal justice process, and the media gave wide coverage to this everyday reality.47 The reformulation through the Jervis Acts of most criminal activity as ‘minor’ crimes or misdemeanours (including most juvenile offending) meant that magistrates became the usual dispensers of justice, deciding on appropriate punishments. This, via media reportage in particular, could initiate a wider stigmatisation within the community to accompany a prison sentence. In deciding, for instance, whether a prison sentence should be accompanied by hard labour, the magistrate sent a signal that was well appreciated by audiences of such legal performances, whether as direct or alternatively as indirect consumers via the newspapers. For example, for anyone with a claim to social status and respectability, serving a sentence with hard labour was accompanied by a lasting social stigmatisation that affected not just the individual but also his (usually, his) family.48 It was thus rare for respectable men to be awarded this in the magistrates’ courts unless some unusual circumstance warranted it or unless the system was not working properly. The Daily Telegraph, for instance, commented on the ‘Severe Sentence’ passed in 1870 on a hitherto respectable farm labourer for stealing potatoes from his employer: he was given three months with hard labour.49 Earlier that year, the same paper had reported the suicide, in Nottingham prison, of Henry Sharpe who was serving a sentence of eighteen months with hard labour for an aggravated case of bigamy. In a note left in his cell, Sharpe, a respectable man up to his conviction, insisted on his sanity in choosing to kill himself and the implication in the reportage was an understanding that there was, for him and his family, little left waiting for him but an enduring stigmatisation after his release.50 Emphasising this point was the case heard contemporaneously before Mr Woolrych, the Lambeth stipendiary, where James Morgan, a cab driver, failed to defend himself against a charge of concealing a sovereign and ended up with a sentence of six weeks, accompanied by hard labour, thus ensuring that he would lose his badge and so his livelihood in a respectable trade.51 Most of the time, as the Buckland case demonstrated, Victorian magistrates and the communities they served – or managed, depending on your perspective – were generally, but not always in broad agreement. This was especially in trials that involved a different sort of violence: violence by the state in the shape of a resented and legally enforceable compulsion to a specific course of action. The Vaccination Acts provide clear evidence for this.52 There were magistrates, for instance, who made use of hard labour as an element in sentencing parents to prison for non-payment of fines levied as a result of resistance to vaccinating their children. When the unfortunate conscientious objector was released, he or she could expect – regardless of whether they had served hard labour or not – to be met by cheering crowds and even the odd brass band . . . serving as a

76 Judith Rowbotham public expunging or rejection of the stigmatisation intended by the state as a material factor to induce compliance.53 This was an important disappointment to a state that relied on social pressure, via the stigmatisation process, to enforce compliance with the law and desistance from repeat offending when it came to minor crimes. An example of this was the strategy used when binding individuals over to keep the peace: they rarely, in the Victorian era, put up their own security. They had to find friends, neighbours or employers to put up the money for them. That, in itself, was an embarrassment – a shame, rather than a stigmatisation – as the reportage underlines, to the individuals affected. This was thus a strategy seen by the community as a whole, and battered wives in particular, as an especially fruitful use of societal shaming as a part of the overall state-sponsored criminal justice process.

Conclusion Much more could be said about how both state and communities used the summary courts in ways that linked culpability with blame and then utilised shame (and occasionally stigmatisation) in a linked formula that took account of respective blames in allotting shame as a key element in the criminalisation process. Blame was capable of being used both by the legal system and by communities. Close examination reveals that each side was often talking about something different, but there was enough common ground to make the invocation of blame a workable tool as the bridge between culpability and shame. It was, for instance, particularly valuable for women. Women who had been raped could avoid for themselves the actual stigma associated with that charge by utilising a lesser assault charge, solely managed in the summary courts, where they had a chance of getting a conviction. At least here they could get the satisfaction of smearing a man’s respectable reputation with the shame (and if they were lucky, implied stigmatisation at least) of a conviction for inappropriate behaviour.54 Equally, the use of the summary courts as the main arena for dealing with juvenile crime could avoid a lasting stigma that might prevent their subsequent reformation and rehabilitation. As this indicates, shame remained a key part of the criminal justice process, but one that was managed in collusion between the state and the community, and that avoided, so far as practicable and right, the extremes of stigmatisation. All this was made visible in a criminalisation process that depended heavily on the public gaze, and thus media reportage was an intrinsic part of that process. It worked, for the Victorians, overall. On one hand, it prevented some of the physical, if not the psychological, excesses of a community generated shaming ritual such as the physically damaging skimmington ride discussed by Kilday in this volume.55 On the other, it gave communities the illusion at least of involvement in the criminal justice process in ways that satisfied both them and the state. We have now lost much of the shaming ritual associated with such a visible and inclusive criminal justice process, yet stigmatisation still remains.56 However, that is very largely at the disposal of the formal

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process and is less associated, now, with community involvement. It would not be possible to turn the clock back. However, in losing this community involvement, especially via shaming rituals, with the criminalisation process, the British state has lost much of its power to involve communities positively with its management of the criminal justice system. That is, or should be, concerning for any state concerned about the functionality of its justice system in the light of diminishing public support.

Notes 1 E. Avdela, S. D’Cruze and J. Rowbotham (eds), ‘Introduction’, Problems of Crime and Violence in Europe, 1750–2000, Lampeter: Mellen Press, 2010. 2 See, for instance, N. Lacey, ‘Contingency and Criminalisation’, in I. Loveland (ed.), The Frontiers of Criminality, London: Sweet and Maxwell, 1995, Ch. 1. 3 See, for instance, Martin Weiner, Men of Blood: Violence, Manliness and Criminal Justice in Victorian England, Cambridge: Cambridge University Press, 2003; Judith Rowbotham, ‘Criminal Savages? Or Civilising the Legal Process’, in J. Rowbotham and K. Stevenson (eds), Criminal Conversations: Victorian Crimes, Social Panic and Moral Outrage, Columbus, OH: Ohio State University Press, 2005, pp.91–105. 4 Judith Rowbotham, ‘Legislating for Your Own Good’, Liverpool Law Review, 30(1), 2009, 13–34. 5 Police News, The Times, 16 July 1865. 6 Law and Police, Pall Mall Gazette, 29 March 1880. 7 Philip Priestley, Victorian Prison Lives: English Prison Biography 1830–1914, Abingdon: Routledge, 1999, p.52. 8 See, for instance J.J. Rodger, Criminalising Social Policy: Anti-Social Behaviour and Welfare in a De-Civilised Society, Cullompton: Willan, 2008; Lorie Charlesworth, Welfare’s Forgotten Past: A Socio-Legal History of the Poor Law, Abingdon: Routledge, 2009. 9 On law and guilt, see in addition to texts already referenced in previous chapters, J. Tangney and R. Dearing, Shame and Guilt, New York: Guilford Press, 2003. 10 See, for instance, Alan Norrie, Crime, Reason and History: A Critical Introduction to the Criminal Law, Cambridge: Cambridge University Press, 2001, pp.13–15. 11 S. Karstedt, M. Levy and B. Godfrey, ‘Introduction’, ‘Markets, Risk and “WhiteCollar” Crimes: Moral Economies from Victorian times to Enron’, British Journal of Criminology, 46(6), 2006, 971–5. 12 See, for instance, Elizabeth Kirkwood, ‘Put the Blame on Them’, New Statesman, 2 July 2009. 13 Here it should be noted that shame is not the same as remorse: most theologians would argue that it is possible to feel shamed without feeling remorseful, for instance. See, however, G. Maxwell and A. Morris, ‘The Role of Shame, Guilt, and Remorse in Restorative Justice Processes for Young People’, in E. Weitekamp and H.-J. Kerner (eds), Restorative Justice: Theoretical Foundations, Cullompton: Willan, 2002, pp.267–84. 14 J. Braithwaite, Crime, Shame and Reintegration, Cambridge: Cambridge University Press, 1993. 15 See D. Nash and A.-M. Kilday, Cultures of Shame: Punishing Moral Lapses in the West 1750–1900, Basingstoke: Palgrave, 2010. 16 On the tensions between what constitutes culpability and justice, shame and blame, see, for instance, A. Norrie, Punishment, Responsibility and Justice: A Relational Critique, Oxford: Oxford University Press, 2000.

78 Judith Rowbotham 17 Ralph Henham, ‘Exploring the Relationship between Sentencing and the Legitimacy of Trial Justice’, International Journal of Law, Crime and Justice, 39(3), 2009, 65–82. 18 J.J. Rodgers, Criminalising Social Policy: Anti-Social Behaviour and Welfare in a De-Civilised Society, Cullompton: Willan, 2008. 19 See, for instance, N. Lacey, ‘In Search of the Responsible Subject: History, Philosophy and the Social Sciences in Criminal Law Theory’, Modern Law Review, 64(3), 2001, 350–71. 20 See, for instance, V.A.C. Gatrell, The Hanging Tree, Execution and the English People, 1770–1868, Oxford: Oxford University Press, 1987. 21 Judith Rowbotham, ‘Punishment and Execution – 1750–2000’, in D. Nash and A.-M. Kilday (eds), Histories of Crime: Britain 1600–2000, Basingstoke: Palgrave, 2010. 22 P. Linebaugh, The London Hanged, Harmondsworth: Penguin, 1991. 23 M. Cox, Remorse and Reparation, London: Jessica Kingsley Publishers, 1999. 24 See, for example, M. Gaskill, ‘Reporting Murder: Fiction in the Archives of Early Modern England’, Social History, 23, 1998, 1–30; M. Gaskill, Crime and Mentalities in Early Modern England, Cambridge: Cambridge University Press, 2003; see also Gatrell, Hanging Tree. 25 ‘William Corder, executed 11th of August 1828 for the Murder of Maria Marten, in the Red Barn, the Crime being Revealed to the Victim’s Mother in Three Dreams’, The Newgate Calendar, London, 1828; Wiener, Men of Blood, p.139. 26 James Fitzjames Stephen, A History of the Criminal Law of England, London: Macmillan, 1883. 27 Ibid., p.84. 28 Judith Rowbotham and Kim Stevenson, ‘Introduction’, Criminal Conversations, pp.xxi–xxxii. 29 See, for instance, D. Cairns, Aidos: The Psychology and Ethics of Honour and Shame in Ancient Greek Literature, Cambridge: Cambridge University Press, 1993. 30 Nash and Kilday, Cultures of Shame. 31 For example, P. Gilbert and B. Andrews, Shame: Interpersonal Behaviour, Psychopathology, and Culture, Oxford: Oxford University Press, 1998. 32 Nash and Kilday, Cultures of Shame. 33 See, for instance, P. Joyce, Criminal Justice, Cullompton: Willan, 2006. 34 B. Risman, ‘What is Wrong with the Criminal Justice System?’ Law Journal, 2002. Available at: www.thelawjournal.co.uk/Article%20Criminal%20Justice%20 System%201a.htm (accessed 17 June 2009). 35 Howard Taylor, ‘Rationing Crime: The Political Economy of Criminal Statistics’, Economic History Review, 51(3), 1998, 569–90. 36 Weiner, Men of Blood is a typical example of this scholarly reality. 37 Indictable Offences Act 1848; Summary Jurisdiction Act 1848; Justices Protection Act 1848; Petty Sessions Act 1849. 38 Rowbotham and Stevenson, Criminal Conversations. 39 See, for instance, J. Braithwaite, ‘Shame and Criminal Justice’, Canadian Journal of Criminal Justice, 42(3), 2000, 281–98; N. Walker, Punishment, Danger and Stigma, Oxford: Basil Blackwell, 1981. 40 Nash and Kilday, Cultures of Shame. 41 A. Roberts, Juvenile Justice Handbook, Oxford: Blackwell, 2004. 42 Jane Abbott, ‘The Press and the Public Visibility of Nineteenth Century Criminal Children’, in Rowbotham and Stevenson (eds), Criminal Conversations, 23–9. 43 Police Intelligence, Daily Telegraph, 2 June 1870. 44 Rowbotham, ‘Civilising Savages’. 45 See, for instance, Judith Rowbotham, Kim Stevenson and Samantha Pegg, ‘Children of Misfortune’, Howard Journal, 42(2), 2003, 107–22.

The shifting nature of blame

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46 Judith Rowbotham and Kim Stevenson (eds), Behaving Badly: Visible Crime, Social Panics and Legal Responses, Aldershot: Ashgate, 2003; Rowbotham and Stevenson, ‘Introduction’, Criminal Conversations. 47 Margot Finn, ‘The Authority of the Law’, in Peter Mandler (ed.), Liberty and Authority in Victorian Britain, Oxford: Oxford University Press, 2006, pp.159–78. Peter King makes the telling point that magistrates had possessed significant powers in daily life before 1848, but undoubtedly, the reform of the criminal justice system enhanced their role. Peter King, Crime and Law in England 1750–1840: Remaking Justice from the Margins, Cambridge: Cambridge University Press, 2006. 48 Judith Rowbotham, ‘Only When Drunk: The Stereotyping of Violence in Britain, 1850–1900’, in S. D’Cruze (ed.), Everyday Violence in Britain, c.1850–1950: Gender and Class, Harlow: Longman, 2000, pp.155–69. 49 ‘Police Intelligence: Severe Sentence’, Daily Telegraph, 9 April 1870. 50 ‘Determined Suicide of a Convict’, Daily Telegraph, 8 January 1870. 51 ‘Police Intelligence’, Daily Telegraph, 11 February 1870. 52 See Rowbotham, ‘Legislating for your own Good’. 53 See, for instance, ‘Last Night’s Telegrams From Our Own Correspondents’, Banbury, Daily Telegraph, 23 June 1875. 54 See, for instance, Kim Stevenson, ‘Crimes of Moral Outrage: Victorian Encryptions of Sexual Violence’, in Rowbotham and Stevenson (eds), Criminal Conversations, pp.232–46. 55 See also Nash and Kilday, Cultures of Shame. 56 E. Ahmed and N. Harris, Shame Management Through Reintegration, Cambridge: Cambridge University Press, 2001.

5

Guilty before the fact? The deviant body and the chimera of ‘precrime’, 1877–1939 Neil Davie

Introduction The term ‘precrime’ would not be coined, of course, until Philip K. Dick wrote his short story ‘Minority Report’ in the 1950s,1 but the idea that the deviant body may offer up clues to both present and future criminality has a much longer history. Such a conception depends on a two-part theory of criminal causation. First, it requires, as Cesare Lombroso famously put it in Criminal Man (1876), that certain criminals are considered ‘born for evil’, condemned to wrongdoing by atavism or degeneration (or both); unable to escape from the nefarious effects of a defective biological inheritance. Given that in such cases ‘all social cures break as against a rock’, nothing can be done to prevent such individuals from fulfilling their sinister destiny, runs the argument, except to sentence them to indefinite incarceration – or death.2 British alienist Henry Maudsley had argued much the same point in the early 1870s, rejecting the notion that criminal behaviour was simply a matter of ‘yielding to an evil impulse or a vicious passion which might be checked were ordinary control exercised’. He considered that ‘For the most part’, the tendency to commit crime was ‘an intractable malady, punishment being of no avail to produce a permanent reformation’. Indeed, such could be the accumulation of physical and mental defects over the generations, Maudsley reasoned,3 that it was unrealistic to expect an individual to be ‘re-formed’ within the space of a single lifetime: ‘Can the Ethiopian change his skin or the leopard his spots?’ In his view, clearly not.4 This gloomy prognosis, repeated in a series of books and articles penned by Maudsley during this period,5 was that the criminal would inevitably persist in his or her wrongdoing, much as ‘the dog returns to its vomit and the sow to its wallowing in the mire’.6 However, a second set of assumptions needed to be grafted on to such biological determinism for the deviant body to become a witness for the prosecution against its owner. In a well-known passage, Maudsley had observed in 1874 that ‘lunatics and criminals are as much manufactured articles as are steam engines and calico-printing machines’, but recognised that ‘the processes of the organic manufactury are so complex that we are not able to follow them’.7 All was not lost, however. Maudsley’s criminal

Guilty before the fact? Deviant bodies 81 manufacturing process was perhaps out of reach, but there existed a range of performance indicators, as it were, in the form of distinctive anatomical and physiological traits.8 For those individuals unfortunate enough to possess the physical traits corresponding to this ‘criminal type’, it could be reliably assumed that defective biology would reveal itself in criminal behaviour. By the beginning of the 1870s, the hunt was on among European and American specialists to pinpoint just what those traits were. Skulls were measured, cadavers dissected and convict mug-shots scrutinised in an effort to draw up a definitive list of unequivocally criminal physical characteristics.9 As Lombroso himself recognised, such a conception raised considerable difficulties when it came to apportioning culpability and blame.10 Havelock Ellis would later sum up the problem as follows: If, as now scarcely admits of question, every truly criminal act proceeds from a person who is, temporarily or permanently, in a more or less abnormal condition, the notion of ‘punishment’ loses its foundation. We cannot punish a monstrosity for acting according to its monstrous nature.11 The watchword of the criminal anthropologists was thus not retribution but ‘social defence’. It was acknowledged that in certain cases it would be ‘necessary to separate the offender from his social environment for ever’ in order to protect the public.12 Gone was the optimism of the early prison reformers, convinced that a spell in a specially conceived ‘moral hospital’, isolated from the criminogenic environment on the outside, would successfully cleanse inmates of their deviant propensities so they would in time be reborn as useful members of the community.13 Instead, it was suggested that incorrigible offenders be sentenced to long-term incarceration in malariainfested agricultural colonies or set to work underground in the mines. If, as expected, the death toll in such cases was to prove high, was it not, argued Italian positivist Enrico Ferri, ‘much better that these should kill off criminals, than honest workmen’?14 As for those who, as Lombroso put it, ‘repeat their sanguinary crimes and threaten the lives of honest men for the third or fourth time . . . in spite of the prison, transportation, and hard labour’, there was no other option but the death penalty. ‘Shall we hesitate’, he asked, ‘when it is a question of suppressing some few criminal individuals, a hundred times more dangerous and fatal than a foreign enemy, in whose ranks a chance bullet may strike a Darwin or a Gladstone?’15 My intention here is not to consider in detail the theories of Lombroso and the criminal anthropologists,16 but rather to explore some of the consequences of the assumptions underlying their work in the period from 1877 – the significance of which date I shall explain presently – up until the outbreak of the Second World War. The centrepiece of my argument is a reappraisal of the criminological work of Francis Galton and Alphonse Bertillon. It will be suggested that their approaches have more in common than has often been acknowledged, and that the popularity of Bertillonage from the 1880s should

82 Neil Davie not be seen as the triumph of an individualising paradigm in criminology and the end of attempts to establish generic ‘criminal types’. Indeed, the continuing importance of a ‘precrime’ approach to criminal aetiology in the late nineteenth and early twentieth centuries reveals that the discipline retained close links to its Lombrosian roots, despite vociferous contemporary claims to the contrary.

The lumper and the splitter? The criminology of Galton and Bertillon The Lombrosian theories of the born criminal have been ‘exploded’, wrote senior British prison administrator Sir Evelyn Ruggles-Brise in 1910. It was now just a matter of ‘fir[ing] the last shot at this deserted ship’.17 RugglesBrise was confident that a statistical study of the British prison population nearing completion would do just that.18 Confirmation that Lombrosian criminal anthropology was already holed below the water-line by this period would appear to come from David Garland’s influential 1988 article on the history of discipline. Although his remarks deal specifically with the British case, his conception of an epistemological hiatus in criminological theory and practice in the 1890s has much wider implications: The psychiatric and medico-legal framework within which Britain developed its early criminological science [from the 1890s was] . . . not concerned to isolate discrete types of human individuals and classify them by means of racial and constitutional differences. . . . Within the classification system of morbid psychology there were a variety of conditions which criminals were typically said to exhibit – insanity, moral insanity, degeneracy, feeble-mindedness, etc. But generally speaking, the criminal was not conceived as a psychological type.19 The chronology of Garland’s epistemological shift dovetails nicely with pioneering work by Allan Sekula in the 1980s on approaches to criminal identification.20 Sekula used the examples of Francis Galton’s composite portraiture and Alphonse Bertillon’s system of anthropometric measurement to argue for a profound change in the nature of criminological knowledge in the late 1880s or 1890s. The idea of a ‘criminal class’, undifferentiated and relatively easily to distinguish, which had dominated at mid-century,21 was increasingly replaced by a new conception of the criminal, emphasising the absence of any clear frontier between normality and abnormality, criminality and respectability. Any link between specific physical traits and criminal behaviour was thus rejected.22 The result of this shift was a move away from the search for generic evidence of criminal types to a more individualised approach, with each criminal body conceived as possessing a unique configuration of body parts of varying shapes and sizes. In this conception, the deviant body would continue to be a valuable resource for identifying offenders, but only as a means of establishing or verifying individual identity.23

Guilty before the fact? Deviant bodies 83 As far as Galton’s experiments with composite portraiture are concerned, Sekula and others24 are right to emphasise its links to theories of the criminal type. The project was launched in 1877 at the behest of Sir Edward Du Cane, recently appointed as head of Britain’s newly unified prison system, with the explicit intention, as Galton later put it, ‘to discover and to define the types of features, if there be any, that are associated with different kinds of criminality’.25 Galton was provided with some 600 mug-shots of convicts from Pentonville and Millbank, along with details of their crimes and criminal records to sort the portraits according to offence, before picking out ‘typical’ representatives of each.26 Only subsequently did he consider photographically superimposing multiple images in order to come up with ‘pictorial statistics’ of crime in the form of composite portraits.27 Du Cane had clearly been preoccupied by these questions for some time. In a talk to the Social Science Association in 1875, he had spoken of that ‘considerable proportion [of criminals] who have certain physical characteristics in common’, adding that ‘many instances may be found in which their physical characteristics approach those of the lower animals’. He even provided a photograph of one particularly striking convict, described as bearing ‘an extraordinary likeness’ to ‘what Professor Darwin calls our “arboreal ancestors”’.28 Quite when Du Cane began to suspect that perpetrators of different kinds of crime might have contrasting facial traits is not clear. However, that he did believe such criminal subtypes to exist is confirmed by a letter he addressed to Galton in 1880, which survives in the archives of University College London. ‘Special forms of crime have a typical characteristic face’, Du Cane wrote, ‘crimes of violence and crimes of lust certainly have.’29 Du Cane would only make one public pronouncement on the Galton project, however. He declared in 1878 that he hoped that the composite portraits would help to ‘track it [crime] out to its source and . . . check it there instead of waiting till it has developed and then striking at it’.30 What exactly Du Cane meant by this remark is not entirely clear, but it is reasonable to assume that he hoped Galton’s method would generate handy albums of ‘typical’ criminal faces – perhaps with subdivisions for rapists, burglars, and so on – which could be issued to policemen on the beat. If this supposition is correct, then presumably such albums would have been intended both to point investigators in the direction of likely suspects, and also to flag petty criminals whose physiognomy gave them away as the serious offenders of the future, and who could thus be punished with an ‘exemplary’ sentence intended to dissuade them from further wrong-doing.31 Such an approach, a precrime department in all but name,32 would have fitted Du Cane’s oft-repeated maxim that only by catching offenders at an early point on their criminal trajectory was there any hope of reform.33 On the face of it, Alphonse Bertillon’s approach is entirely different; a search not for a generic criminal type, but the identification of a single individual thanks to his or her unique combination of body measurements.34 Bertillon’s

84 Neil Davie anthropometrical technique, dubbed Bertillonage, made its debut in the Paris Préfecture de Police in 1882. A development of pre-existing anthropological practice, Bertillonage was based on the collection of standardised anthropometric data among criminal suspects, which would then be entered on a ‘signaletic’ card, invented for the purpose. Bertillon boasted that with the database composed of thousands of such cards organised into a number of groups and subgroups on the basis of particular measurements (height, head length, arm span, right ear length, etc.), it was possible to verify in a matter of minutes if a suspect’s profile matched an individual already on file. Anthropometric data could also be circulated to local police via the portrait parlé, or spoken likeness, whereby individual identity was condensed into a biometric code. This was based on the quantification of up to one hundred precise facial measurements, together with – for ‘exotic’ criminals – information on ‘race’ and ‘skin colour’. Bertillon would also experiment with the use of annotated stamp-sized photographs for similar purposes.35 In a context of rising international concern about the difficulty of accurately identifying habitual criminals, the appeal of a system which ‘created a definition of the individual that the body could not escape’, as Simon A. Cole puts it, was clear. By the early years of the twentieth century, Bertillonage had been adopted in Britain, Germany, Italy, Portugal, Spain and Romania, and had made significant inroads in the Americas and the Middle East.36 Although Bertillon drew on anthropometric and craniometric techniques developed by physical anthropologists (among them his own father) in their search for discrete human ‘races’, he would appear to have eschewed their obsession with constructing typologies on the basis of shared anatomical and physiognomic traits. Thus, Bertillon is widely seen as a ‘mere’ criminalist rather than a criminologist,37 working in an entirely different tradition from Galton, one that would throw up other individualising technologies such as fingerprinting and DNA profiling, rather than focusing on the criminal attributes of generically defined groups such as the weak or feeble-minded, degenerate and unfit.38 A closer look at Bertillonage reveals a rather more complex picture, however. First of all, there is unequivocal evidence that Bertillon himself adhered to the tenets of racial anthropology. In a verbal exchange with leading French anthropologist Paul Topinard in 1886, Bertillon distinguished his own approach, what he called ‘judicial anthropology’ from that of the ‘ethnic’ anthropologists, but made clear that both drew on a common methodology to which he subscribed: One approach compares races, the other individuals, in order to establish their similarities and differences. Ethnic anthropology creates common types or averages resulting from a large number of individual observations, and then compares them. It is clear, however, that two individuals can be compared in the same way. The methods of study are thus identical. In order to constitute types, the anthropologist chooses those traits which

Guilty before the fact? Deviant bodies 85 vary the most between races. We do the same thing when we compare individuals.39 Indeed, it was precisely such a typology of races that Bertillon had sought to establish in his own 1882 survey of anthropological data, Les Races Sauvages. The book follows contemporary practice in the field in combining anthropometrical (particularly craniometrical) data with generalisations on the cultural and moral characteristics of different non-European peoples, with a pronounced emphasis on the ‘primitiveness’ and ‘inferiority’ of the latter.40 In another publication from 1890, he went as far as suggesting that Galton’s composite portraits could be of value to anthropologists in their efforts to establish ‘average profiles’ for particular ethnic groups.41 However, was the distinction between a generalising ‘ethnic anthropology’ and its individualising ‘judicial’ sister discipline as watertight as Bertillon implied, and modern researchers have tended to assume? New evidence from a paper read by Bertillon to the 1896 International Congress on Criminal Anthropology in Geneva strongly suggests that it was not. At the end of his paper, he suggested that when a sufficient number of criminals had been studied according to his anthropometric method, it would be possible, as he put it, to ‘establish the frequency of malformations and facial anomalies among the various individuals, as well as the correlation between these anomalies and their individual criminal tendencies’.42 Like Galton, Bertillon had already come to the conclusion that photographic portraits were useless in this respect,43 but he clearly remained convinced that a variety of criminal subtypes did indeed exist. Interestingly, the 1893 edition of his book of signaletic instructions contains a revealing section devoted to ‘Descriptive Information’. Bertillon noted how it was often possible to differentiate without exactly knowing how, between the town dweller, the countryman, the mechanic, the industrial worker, the general labourer, the street pedlar, the former sales assistant, the sailor, the military man, the horse trader, the déclassé, and the various kinds of habitual offenders: vagrants, beggars, thieves, gambling den owners, procurers, pederasts, rabble-rousers, and so on.44 Such ‘general impressions’, he added, were ‘the direct result of an individual’s race, nationality and social background, together with their upbringing, education and occupation’. This information, he concluded, was of ‘great signaletic interest’.45 It is in this context, perhaps, that we should see the comment attributed posthumously to Bertillon by Alexandre Lacassagne, that the list of measurements that made up the portrait parlé ‘could never give more than an indication, which would vary from one locality – and from one race – to another’.46 However, could the hard data of anthropometry prove itself capable of plotting the frequency of criminals’ physical malformations and anomalies,

86 Neil Davie and correlating them with different types of offender, as Bertillon had hinted at Geneva? One possible avenue for progress in this area was to establish a regional typology of criminal types, a predictable choice, perhaps, given the extent of anthropological interest in the subject.47 Thus, in the late 1880s, Bertillon’s Identification Service at the Paris Préfecture de Police constructed a regional map of France’s criminal population, based on a study of 25,000 criminals born between 1835 and 1869. Cephalic index, eye colour, height and foot size were used as indicators. They even mounted an exhibition on the subject in 1889 to present their findings to the public. Thus, individuals belonging to the ‘Celtic type’ of criminal were characterised by a wide head, dark eyes, small stature and large feet, while those of the ‘Mediterranean type’ were rather tall, with a long, narrow head, brown eyes and small feet.48 Such types mirrored the kind of descriptions found in the works of contemporary anthropologists such as John Beddoe.49 The regional study that formed the basis of the 1889 exhibition by the Paris Préfecture had presumably been one attempt to quantify that ‘variation’. In similar fashion, Bertillon amassed a collection of some one hundred photographs of ‘professional calluses’ in the early 1890s, a copy of which was sent to Francis Galton via the British Embassy in Paris.50 So presumably if local gendarmes had been on the look-out for a deviant Breton weaver, the Identification Department of the Paris Préfecture would have been able to provide information on likely stature, head shape, foot size and finger calluses. If Bertillon had hoped to move on from such ‘shoe-maker anthropology’ (as one critic disparagingly put it)51 to a more sophisticated typology of criminal types, possibly with the kind of predictive capability that Galton and Du Cane had been aiming for a couple of decades earlier, there is no record of it ever having been attempted, at least not by him. Others were ready to step into the breach, however, like American psychiatrist and prison doctor W.A. M’Corn, who published an article in 1896 in the American Journal of Insanity devoted to ‘Degeneration in criminals as shown by the Bertillon system of measurement and photographs’.52 One of his colleagues noted in the same journal the following year: It will not be many years, I believe, before the [anthropometrical] method will be a part of the routine examination in all our prominent institutions for the abnormal classes of every kind, for there are whole groups of important structural characters, particularly the inherited and congenital ones, which cannot be satisfactorily determined by any other method.53 Although this confident assertion would never be fully translated into reality, a number of American criminal anthropologists, such as Hamilton Wey and August Drähms, would continue to draw on Bertillonage in the coming decade in their search for accurate markers of degenerate status.54 If it is accepted that the Frenchman considered such a use of Bertillonage to be both desirable and possible – my reading of his comments at Geneva –

Guilty before the fact? Deviant bodies 87 then it is surely misleading to construct a theory of an epistemological watershed in the 1890s on the back of the supposed contrast between the lumpers and the splitters. Instead, both Galton and Bertillon’s work should be regarded as representing that intermeshing of individualising and generalising approaches that, as Cole has shown, have characterised the emergence of each successive system of criminal identification since the nineteenth century. Whether it be photography, anthropometry, fingerprinting, or, latterly, biometrics and the DNA profile, Cole reveals evidence of what he calls an ‘irresistible temptation’ to apply each new method to look for signs of past or future criminal behaviour in the body itself, ‘hom[ing] in on the common physiognomic attributes of known criminals in order to . . . identify criminals prospectively, even before they commit crimes’.55 Galton’s career provides a textbook case of Cole’s thesis. Despite his failure with composite photography in the 1870s, Galton continued his efforts to isolate generic traits common to all criminals. When mug-shots proved a deadend, he turned to fingerprints. Ironically, what would come to be seen as a powerful tool for individual forensic identification was initially no more than a by-product of Galton’s obsession with finding objective generic indicators of inferior cerebral and physical status, a key objective of the newly named science of eugenics.56 As in the case of composite photography, however, Galton was forced to admit that his researches had not turned up any eugenic gold-standard. ‘I have prints of eminent thinkers and of eminent statesmen’, he wrote in 1892, ‘that can be matched by those of congenital idiots. No indications of temperament, character, or ability are to be found in finger marks, so far as I have been able to discover.’57 Galton’s admission did not stop others from looking, of course, and like Bertillon’s anthropometric system, fingerprints were eagerly seized on by adepts of degeneration theory looking for reliable markers of inferior biological status.58 As late as 1930, Karl Pearson was still holding out hope that, with ‘larger collections and more modern statistical methods’, differences would come to light. For this died-in-the-wool eugenicist, it was simply inconceivable that patterns had been ‘scattered almost indiscriminately among the ten fingers’.59 In fact, as David G. Horn has noted, virtually any body part was ripe for analysis of this kind, in order to differentiate individuals and help establish social risks. He gives the example of one of Lombroso’s assistants who proposed an anthropological classification of fingernails according to shape, and claimed to have uncovered a ‘morbid conformation’ among the appendages of born criminals and the mentally ill. Another Italian researcher, based at Alessandria’s Royal Asylum for the Insane, developed an instrument called an otometer, supposedly capable of measuring ‘criminal’ ear types.60

The Lombrosian legacy in Britain and the United States When considering mainstream criminology in the period from the 1890s, it is important, as Daniel Pick has noted, to penetrate the verbal jousting that often

88 Neil Davie characterised debates between rival criminological schools in order to ‘examine exactly what was rejected and what (wittingly or unwittingly) was accepted or simply assumed’ by contemporary practitioners.61 In fact, most criminologists, certainly up to 1914, shared the view that for certain kinds of criminal at least, there was a strong, if not cast-iron, link between the presence of physical defects and past or future deviancy. In other words, it was assumed there was a category of the criminal population more or less condemned to wrong-doing by inherited biological defects, and that those defects could be identified through distinctive anatomical and physiological body traits. This did not stop a majority of specialists from rejecting out of hand Lombroso’s unchanging checklist of atavistic stigmata (and indeed, atavism tout court), or from dismissing as alarmist some of the apocalyptic predictions of the degenerationists and the eugenicists. A typical example of such a stance is that adopted by leading British Edwardian forensic psychiatrist, Charles Mercier. A well-known critic of Lombrosian methods and an outspoken opponent of eugenics,62 Mercier nevertheless conceded that there existed a group of ‘truly instinctive criminal[s]’ whose criminal behaviour was ‘due to the absence or imperfect development of an instinct that other people possess’. Neither ‘the ancient method of brutal severity’ nor ‘the modern method of providing [offenders] with beer and skittles, with newspapers to read and Sophocles to listen to’, he added, were of any use in dealing with this incorrigible group, whom he dubbed ‘moral imbeciles’.63 In fact, as Matthew Thomson has shown in the British case, the evidence given before the Royal Commission on the Care and Control of the FeebleMinded (1904–08) reveals a wide measure of consensus on both the existence of an endemically criminal mentally deficient group of the population, and the need to control procreation among this problem group by a policy of longterm, possibly indefinite segregation – a new application of the ‘precrime’ approach to crime.64 It is also clear that in this period psychiatrists and prison doctors continued to map the physical defects they considered to be associated with mental deficiency, often using language that reflected the researches of the criminal anthropologists at the end of the previous century, and indeed to the ‘criminal-type’ theories of the 1860s and 1870s.65 It was the question of the scale of the problem represented by biologically driven deviance that divided opinion, rather than its existence. Thus, Dr David Nicolson, Superintendent of the Criminal Asylum at Broadmoor, spent the major part of an 1895 talk to the Medico-Psychological Association rubbishing Lombroso and his works (it was he who coined the phrase ‘shoe-maker anthropology’ cited earlier). However, in the discussion that followed his paper, he made the following revealing admission: I am entirely in agreement with much of the phraseology and the descriptions of the criminologists, [66] but I repeat – and this is the point which I wish to make quite clear – that these descriptions only apply to a minority of criminals. What I object to is that a description – honest, true,

Guilty before the fact? Deviant bodies 89 verbose if you like – applicable to the few should be held up to the world as being applicable to the whole criminal class. I have never said that there is no truth in what these criminologists, or criminal anthropologists, or criminalists, say. There is truth in it. But having begun at the wrong end by analysing the body and mind of a few individuals, they have built up by a process of synthesis a scheme which cannot possibly be conceded as generally applicable.67 Others were less sanguine. Asylum-based psychiatrist Dr Alfred Tredgold was one among his profession warning that ‘a tide of degeneracy’ was about to wash over the nation, and that failure to act could have potentially catastrophic consequences, including a rocketing crime rate. A 1908 paper of his, entitled ‘The Feeble-Minded: A Social Danger’, circulating among members of Asquith’s Liberal cabinet, warned darkly: ‘Delay is dangerous, the disease has already spread to such an extent and the case has already become so urgent that we must not wait.’68 In a textbook on mental deficiency published a few years earlier, Tredgold had argued that ‘anatomical anomalies indicative of arrested development are of much more common occurrence [among criminals] than in the normal population. The same is true of the face, jaws, palate, and body generally; in the habitual criminal stigmata of degeneracy abound.’69 Similar views were to be found among other asylumbased psychiatrists of the period.70 As for Charles Goring’s The English Convict (1913), the statistical study for which Sir Evelyn Ruggles-Brise had held out such hopes, it did indeed roundly condemn Lombroso’s methods and dismiss his unchanging checklist of anatomical and physiological ‘stigmata’.71 That being said, Dr Goring defended the idea that ‘the criminal diathesis . . . is inherited at much the same rate as are other physical and mental qualities and pathological conditions in man’, and went on to describe as ‘trifling’ the effect on the individual of environmental factors such as ‘parental contagion’ or ‘social inequalities’.72 In order to attack ‘the evil at its root’, Goring resorted to the familiar preventative solutions favoured by the eugenics movement: ‘the regulat[ion of] the reproduction of those degrees of constitutional qualities – feeble-mindedness, inebriety, epilepsy, deficient social instinct, etc. – which conduces to the committing of crime’.73 As late as the end of the 1920s, the Medical Inspector of Prisons and future Medical Director of Prisons, Sir William Norwood East, was still suggesting that the generalisations made about criminal types by earlier generations of criminologists could be applied to ‘imbeciles and others now segregated under the Mental Deficiency Acts’. He also urged the measurement of cranial circumference as a useful diagnostic tool, as well as resurrecting a theory common among criminologists in the 1880s and 1890s that criminals tended to develop a distinctive physiognomy or ‘gaol look’ as a result of repeatedly expressing the same deviant instincts and emotions.74 While such sentiments would seem to indicate a considerable measure of continuity with the criminological work we examined at the beginning of this chapter, it should

90 Neil Davie be remembered that Nicolson, Ruggles-Brise and Norwood East, like most mainstream criminologists of the period, all insisted that biologically determined deviance – on the face of it the only kind capable of yielding precrime-style evidence – was confined to a relatively small proportion of the criminal population. In fact, as fears of a marauding army of delinquent – and sexually active – mentally deficient youths began to fade in the 1920s, this Lombrosian strain of criminology lost rather than gained in influence, both in Britain and the United States.75 There remained, of course, those – often, but not uniquely, active in eugenics movements around the world – who continued to believe that defective biology provided the key to understanding crime, and some continued also to seek confirmation for their theories in anthropometric number-crunching. One of them was Ernest A. Hooton, a Harvard-based physical anthropologist, who published a number of works on the anthropology of crime in the late 1930s.76 Castigating his fellow criminologists for having precipitously abandoned the study of the physical hereditary characteristics of criminals, he claimed his own study of some 10,000 offenders had revealed that a Lombroso-style criminal-type did exist after all. Among the recurring physical traits he found in his sample of criminals were sloping foreheads, pointed chins, long necks and round shoulders, all indicative, in his view, that ‘the biologically inferior, the organically inadaptable, the mentally and physically stunted and warped’ were responsible for the majority of crimes.77 Hooton held out little hope for such ‘low-grade human organisms’; his only solutions were the ones familiar to supporters of eugenics: ‘extirpation’ or ‘complete segregation in a socially asceptic environment’.78

Conclusion Like Lombroso before him, Hooton’s work was roundly condemned by mainstream criminologists and sociologists for its shoddy methodology, circular reasoning and value-judgements, notably in a highly critical review from 1940 by anthropologist Ashley Montagu and sociologist Robert K. Merton.79 Hooton’s influence would live on, however, into the 1950s in the work of his former colleagues at Harvard, William Sheldon of the husband and wife team of Sheldon and Eleanor Glueck.80 Sheldon had picked up an idea from The American Criminal that a series of physical subtypes, or ‘somotypes’, could be reliably linked to particular offences. Although Sheldon’s work was subjected to the same kind of devastating criticism as that of his mentor ten years previously,81 he remained convinced that there was a close connection between biology and crime, and also like Hooton (and Goring before him), had little to offer those muscular and stocky ‘mesomorphs’ apparently condemned to endemic criminality, except long-term segregation and forced sterilisation. As for other eugenicists, the result of inaction, according to Sheldon, would be cataclysmic: an unprecedented wave of lawbreaking and even social breakdown.82

Guilty before the fact? Deviant bodies 91 By the 1950s, however, few were listening to such doom-laden prophesies, and the concept of precrime largely vanished from criminological discourse, until the birth – one might say the re-birth – of biological or ‘biosocial’ criminology in the 1980s.83 Taking a long view, however, it could be argued that the period between 1945 and 1980 was unusual in its concentration on environmental explanations of crime, and that the current situation, with lively and often heated debate between advocates of biological and social aetiologies represents a more common pattern in the history of criminology. As we have noted, the arrival on the scene of new identification technologies such as DNA profiling and biometrics has offered fresh possibilities to those eager to find clues to present or future wrongdoing in the human body.84 Indeed, some researchers in this field have gone as far as suggesting, in language reminiscent of Henry Maudsley, that ‘bad brains lead to bad behaviour’, and, moreover, that what makes them ‘bad’ can be visualised thanks to sophisticated brain imaging technologies.85 Clearly, the full history of precrime remains to be written.

Notes 1 Philip K. Dick, ‘The Minority Report’ [1956], in The Collected Stories of Philip K. Dick, New York: Citadel Press, 1991, vol. 4, pp.71–102. 2 Cesare Lombroso, Crime: Its Causes and Remedies, New York: Little Brown & Co., 1911, p.447. See Cesare Lombroso, Criminal Man, Nicole Hahn Rafter (trans.) and Mary Gibson (ed.), Durham, NC: Duke University Press, 2006. 3 Maudsley was drawing here on the Lamarckian theory of dégénérescence popularised by French alienist Bénédicte-Auguste Morel, 1809–1873, and in particular the latter’s 1857 work, Traité des dégénérescences physiques, intellectuelles et morales de l’espèce humaine, Paris: J.B. Ballière, 1857. For Morel’s influence on Maudsley’s thought, see Daniel Pick, Faces of Degeneration: A European Disorder, c.1848–1918, Cambridge: Cambridge University Press, 1989, pp.207–9. 4 Henry Maudsley, Responsibility in Mental Disease, New York: Appleton, c.1900, originally 1874, p.35. 5 See, for example, Henry Maudsley, The Physiology and Pathology of the Mind, London: Macmillan, 1867; Maudsley, Body and Mind, London: Macmillan, 1870. On Maudsley’s views, see Trevor Turner, ‘Henry Maudsley: Psychiatrist, Philosopher and Entrepreneur’, in W.F. Bynum, R. Porter and M. Shephard (eds), The Anatomy of Madness: Essays in the History of Psychiatry, London: Routledge, 1988, vol. 3, 151–89. 6 Maudsley, Responsibility in Mental Disease, p.35. 7 Ibid., p.30. 8 David G. Horn, ‘Making Criminologists: Tools, Techniques and the Production of Scientific Authority’, in Peter Becker and Richard Wetzell (eds), Criminals and their Scientists: The History of Criminology in International Context, Cambridge: Cambridge University Press, 2006, pp.317–36, p.317. 9 Neil Davie, ‘Born for Evil?: Biological Theories of Crime in Historical Perspective’, in S.G. Shoham and Paul E. Knepper (eds), The International Handbook of Criminology, London: Taylor & Francis, 2010, pp.30–1. 10 Lombroso, Criminal Man, pp.92–3. 11 Havelock Ellis, The Criminal, London: Walter Scott, 1890, p.233. 12 Enrico Ferri, Criminal Sociology, New York: Appleton, 1896, p.207.

92 Neil Davie 13 Randall McGowen, ‘The Well-Ordered Prison, England 1780–1865’, in Norval Morris and David Rothman (eds), The Oxford History of the Prison: The Practice of Punishment in Western Society, Oxford: Oxford University Press, 1998, pp.71–116; Robin Evans, The Fabrication of Virtue: English Prison Architecture 1750–1840, Cambridge: Cambridge University Press, 1982. The term ‘moral hospital’ comes from Frederic Hill, Crime: Its Amount, Causes and Remedies, London: John Murray, 1853, p.150. 14 Ferri, Criminal Sociology, pp.248–50; 265. 15 Lombroso, Crime, pp.426–7. 16 On this subject, see Mary Gibson, Born to Crime: Cesare Lombroso and the Origins of Modern Criminology, Westport, CT: Praeger, 1992; David G. Horn, The Criminal Body: Lombroso and the Anatomy of Deviance, London: Routledge, 2003. The introductions to the two recent translations of Criminal Woman and Criminal Man are also useful in this context: Cesare Lombroso and Guglielmo Ferrero, Criminal Woman, the Prostitute and the Normal Woman, Nicole Hahn Rafter (trans.) and Mary Gibson (ed.), Durham, NC: Duke University Press, 2004; Cesare Lombroso, Criminal Man, Nicole Hahn Rafter (trans.) and Mary Gibson (ed.), Durham, NC: Duke University Press, 2006. 17 Sir Evelyn Ruggles-Brise 1910, cited, Victor Bailey, ‘English Prisons, Penal Culture and the Abatement of Imprisonment, 1895–1922’, Journal of British Studies, 36, 1997, 285–334, p.314. 18 The study in question is, of course, Charles Goring, The English Convict: A Statistical Study, London: HMSO, 1913. However, the outcome was not quite the devastating broadside that Ruggles-Brise had predicted. 19 David Garland, ‘British Criminology Before 1935’, British Journal of Criminology, 28(2), 1988, 1–17, p.3. 20 Allan Sekula, ‘The Body and the Archive’, October, 39, 1986, 3–64. Carlo Ginsburg had already sketched out a similar argument for the significance of Bertillon, although he places Galton, through his work on fingerprints, on the same side of the epistemological divide: Carlo Ginsburg, ‘Morelli, Freud and Sherlock Holmes: Clues and Scientific Method’, History Workshop Journal, 9, 1980, 5–36. 21 Victor Bailey, ‘The Fabrication of Deviance?: “Dangerous Classes” and “Criminal Classes” in Victorian England’, in John Rule and Robert Malcolmson (eds), Protest and Survival: The Historical Experience, London: Merlin Press, 1993, 221–57. 22 Martin J. Wiener, Reconstructing the Criminal: Culture, Law and Policy in England, 1830–1914, Cambridge: Cambridge University Press, 1990, pp.244–56. 23 Sekula, ‘The Body’, p.19; Ginzburg, ‘Morelli, Freud and Sherlock Holmes’, pp.25–6. 24 For example, David Green, ‘Veins of Resemblance’, Oxford Art Journal, 72, 1985, 3–16. 25 Francis Galton, Memories of My Life, London: Methuen, 1908, p.259. 26 University College Library, London Galton Papers, 158/1B, Home Office to Francis Galton, 18 April; 22 May 1877; Francis Galton, ‘Composite Portraits’, Journal of the Anthropological Institute, 8, 1879, p.143. See Neil Davie, ‘“Une des défigurations les plus tristes de la civilisation moderne”: Francis Galton et le criminel composite’, in Michel Prum (ed.), Les Malvenus, Race et sexe dans le monde anglophone, Paris: L’Harmattan, 2004, pp.191–220. 27 Francis Galton, ‘Generic Images’, Nineteenth Century 6, 1879, p.162. He wrote: ‘Composite portraits are . . . much more than averages, because they include the features of every individual of whom they are composed. They are the pictorial equivalent of those elaborate statistical tables out of which averages are deduced. There cannot be a more perfect example . . . of what the metaphysicians mean by generalisations’ (p.163).

Guilty before the fact? Deviant bodies 93 28 Edmund Du Cane, ‘Address on the Repression of Crime’, Transactions of the National Association for the Promotion of Social Science, 1875, 302–3. A photograph of the same convict also appeared in an article by prison doctor David Nicolson in a gallery of portraits of ‘weak-minded criminals’, ‘The Morbid Psychology of Criminals’, Journal of Mental Science, 21, 1875, 250. Nicholson described the criminal in question as ‘a veritable missing link’. 29 University College London Archives, Galton Papers, 152/6A, Letter, Sir Edmund Du Cane to Francis Galton, 12 February 1880(?). 30 Galton, ‘Composite Portraits’, pp.142–3. 31 See Neil Davie, Tracing the Criminal, Oxford: Bardwell Press, 2005, pp.100–4. 32 This parallel is explored in Neil Davie, ‘Identifier les tueurs-nés’, Le Monde diplomatique, December 2002, p.31. 33 Du Cane, ‘Address’, p.277. 34 Sekula’s comment, ‘The Body’, p.19, that ‘Bertillon remains an ignored mechanic and clerk, commemorated mostly by anecdotal historians of the police’ still appears partly true, though since Sekula’s article, there has been a considerable growth of research in this area, mostly by French scholars. See, for example, Pierre Piazza, ‘La fabrique bertillonienne de l’identité. Entre violence physique et symbolique’, Labyrinthe, 6, 2000, 33–50; Martine Kaluszynski, ‘Republican Identity: Bertillonage as Government Technique’, in Jane Caplan and John Torpey (eds), Documenting Individual Identity: The Development of State Practices in the Modern World, Princeton, NJ: Princeton University Press, 2006, pp.123–38; Ilsen About, ‘Les fondations d’un système national d’identification policière en France 1893–1914. Anthropométrie, signalements et fichiers’, Genèses 54, 2004, 28–52; Vincent Denis, Une histoire de l’identité: France, 1715–1815, Seyssel: Champ Vallon, 2008; Dominique Guillo, ‘Bertillon, l’anthropologie criminelle et l’histoire naturelle. Des réponses au brouillage des identities’, Crime, Histoire and Sociétés, 12(1), 2008, 97–117. The online resource ‘The Bertillon Project’ provides a useful survey of the latest thinking on the subject. Available at: www.projetbertillon.com (accessed 12 December 2011). 35 Christian Phéline, ‘L’Image accusatrice’, Les Cahiers de la Photographie, 17, 1985, 118–19. 36 Simon A. Cole, Suspect Identities: A History of Fingerprinting and Criminal Identification, Cambridge, MA: Harvard University Press, 2001, p.53. 37 For a useful discussion of this distinction, see Peter Becker, ‘The Criminologists’ Gaze at the Underworld: Toward an Archaeology of Criminological Writing’, in Becker and Wetzell (eds), Criminals and Their Scientists, pp.105–33. 38 Sekula, ‘The Body’, p.18. For more recent statements of the same position, see Dominique Guillo, ‘Bertillon, l’anthropologie criminelle et l’histoire naturelle: des réponses au brouillage des identities’, Crime, History and Societies Crime/Histoire et Sociétés, 12(1), 2008, 97–116; George Pavlich, ‘The Subjects of Criminal Identification’, Punishment and Society, 11(2), 2009, 171–90. 39 Alphonse Bertillon, ‘Discussion sur l’identification anthropologique’, Bulletin de la Société d’Anthopologie de Paris, 9(1), 1886, 114 [author’s translation]. 40 Alphonse Bertillon, Les Races Sauvages Masson, 1882. See, for example, p.62, where ‘negroes’ were described as ‘remaining throughout their lives over-sized children fired by the passions of adults. They are incapable of controlling themselves.’ Bertillon speculated that the intellectual inferiority of Blacks was to be explained by the ‘premature suture of the cranial bones among members of this race’ [author’s translations]. 41 Alphonse Bertillon, La Photographie Judiciaire, avec un appendice sur la classification et l’identification anthropométriques, Paris: Masson, 1890, p.5. 42 Alphonse Bertillon, ‘Résultats obtenus par l’anthropométrie au point de vue de la criminalité: Quelles sont les lacunes à combler?’ Congrès international de l’anthropologie criminelle: travaux du IVe session. Genève, 1896, Geneva: Georg and Compagnie, 1897, pp.65–6 [author’s translation].

94 Neil Davie 43 Alphonse Bertillon, L’Identité des Récidivistes et la Loi de Rélégation, Paris: Masson, 1883, p.11. 44 Alphonse Bertillon, Instructions signalétiques, Melun: Imprimerie administrative, 1893, p.105 [author’s translation]. An English translation of this edition, Signaletic Instructions, was published by Werners, Chicago, in 1896 with the assistance of a former Chicago Superintendent of Police, but is shot through with errors. 45 Ibid. 46 Alexandre Lacassagne, ‘Obituary of Alphonse Bertillon’, Archives d’Anthropologie Criminelle, 29(243), 1914, p.163 [author’s translation and emphasis]. 47 George W. Stocking, Jr, Victorian Anthropology, New York: The Free Press, 1897. 48 Archives of the Préfecture de Police de Paris, file no 191, ff.568–75, Mémoires anthropométriques de Mr Alphonse Bertillon, 1879–1889: ‘Etude Anthropométrique des populations de la France et des pays limitrophes’, 1889. 49 John Beddoe, The Races of Britain: A Contribution to the Anthropology of Western Europe, Bristol: J.W. Arrowsmith, 1885. 50 University College London Archives Galton Papers, 172/13, 201, Letter, Alphonse Bertillon to Francis Galton, 10 March 1891; University College London Archives Galton Papers, 201, Letter, Alphonse Bertillon to Francis Galton, 3 August 1891. 51 David Nicolson, ‘Presidential Address’, Journal of Mental Science, 41, 1895, 579. On the context for these remarks, see Davie, Tracing the Criminal, p.152. 52 W.A. McCorn, ‘Degeneration in Criminals as Shown by the Bertillon System of Measurement and Photographs’, American Journal of Insanity, 53(1), 1896, 47–56. 53 A. Hrdlicka, ‘A Few Words about Anthropometry’, American Journal of Insanity, 53(4), 1897, 521. 54 See August Drähms, The Criminal: His Personnel and Environment, London: Macmillan, 1900, p.92, where the author refers both to his own and Dr Wey’s use of Bertillonage. For the background, see Nicole Hahn Rafter, 1997, Creating Born Criminals, Urbana and Chicago, IL: University of Illinois Press, 1997, Ch.6. 55 Cole, Suspect Identities, pp.26, 305. 56 Galton wrote in 1883 that it was his intention to ‘touch on various topics more or less connected with that of the cultivation of race, or, as we might call it, with ‘eugenic’ questions’. Francis Galton, Inquiries into Human Faculty and its Development, 2nd edn, London: Dent, 1907, p.17. 57 Francis Galton, Finger Prints, London: Macmillan, 1892, p.197. 58 Cole, Suspect Identities, pp.106–9; Horn, ‘Making Criminologists’, pp.23–4. 59 Karl Pearson, The Life, Letters and Labours of Francis Galton, 3 vols., Cambridge: Cambridge University Press, 1914–30, vol. 3, 1930, pp.139–40. 60 Horn, ‘Making Criminologists’, p.25; Cole, Suspect Identities, p.58. 61 Pick, Faces of Degeneration, pp.180, 185. 62 See Davie, Tracing the Criminal, pp.150–1, 153, 155, 188–9, 240–3. 63 Charles Mercier, Crime and Criminals: Being the Jurisprudence of Crime, Medical, Biological and Psychological, London: University of London Press, 1918, pp.236, 282. 64 Matthew Thomson, The Problem of Mental Deficiency: Eugenics, Democracy and Social Policy in Britain, c.1870–1959, Oxford: Oxford University Press, 1998. 65 Davie, Tracing the Criminal, Ch.4; Mark Jackson, The Borderland of Imbecility: Medicine, Society and the Fabrication of the Feeble Mind in Later Victorian and Edwardian England, Manchester: Manchester University Press, 2000. 66 It is interesting to note that at this period in Britain, the label ‘criminologist’ continued to be associated with the biological approach of the criminal anthropologists. 67 Nicolson, ‘Presidential Address’, p.590 (author’s emphasis). 68 Arthur F. Tredgold, ‘The Feeble-Minded – A Social Danger’, The Eugenics Review, 1(2), 1909, 104.

Guilty before the fact? Deviant bodies 95 69 Arthur F. Tredgold, Mental Deficiency (Amentia), New York: William Wood, 1908, p.296. 70 See Davie, Tracing the Criminal, pp.160–5. 71 Goring, The English Convict, pp.173, 370. 72 Ibid., pp.288, 368. 73 Ibid., p.373. When The English Convict was published, a number of those government officials who had sponsored the study publicly disassociated themselves from Goring’s findings, while Ruggles-Brise’s preface to the published work deliberately tried to tone down its author’s more provocative conclusions, emphasising instead the need to address those social and economic problems conducive to crime Davie, Tracing the Criminal, pp.238–41. 74 William Norwood East, The Relation of the Skull and Brain to Crime, Edinburgh: Oliver & Boyd, 1928, pp.17–18; William Norwood East, ‘An Introduction to Forensic Psychiatry, Churchill, 1927, quoted in Joe Sim, Medical Power in Prisons: The Prison Medical Service in England 1774–1989, Buckingham, Milton Keynes: Open University Press, 1990, p.64. For earlier views along these lines, see Davie, Tracing the Criminal, p.159. 75 Thomson, Mental Deficiency, pp.252–7; Rafter, Creating Born Criminals, Ch.11. It is interesting in this context that in later editions of Tredgold’s textbook, the author sought to distance himself from the idea of a generalised ‘criminal type’, which he had come to consider ‘ridiculous’ and ‘unscientific’. See Tredgold, Mental Deficiency (Amentia), 3rd edn, New York: William Wood, 1920, p.385. 76 Earnest A. Hooton, The American Criminal, Cambridge, MA: Harvard University Press, 1939; Earnest A. Hooton, Crime and the Man, Cambridge, MA: Harvard University Press, 1939. 77 Hooton, Crime and the Man, p.33. On Hooton’s research, see Nicole Rafter, ‘Earnest A. Hooton and the Biological Tradition in American Criminology’, Criminology, 43(3), 2004, 753–4. 78 Hooton, Crime and the Man, p.309. 79 Robert K. Merton and M.F. Ashley-Montagu, ‘Crime and the Anthropologist’, American Anthropologist, 42(3), 1940, 384–408. 80 William H. Sheldon, Varieties of Delinquent Youth, New York: Harper & Brothers, 1949; Sheldon and Eleanor Glueck, Unravelling Juvenile Delinquency, Cambridge, MA: Harvard University Press, 1956; Sheldon and Eleanor Glueck, Physique and Delinquency, New York: Harper, 1956. 81 Edwin Sutherland’s review of Sheldon’s methodology was particularly damning. See Sutherland, ‘Critique of Sheldon’s Varieties of Delinquent Youth’, American Sociological Review, 18, 1951, 10–13. 82 Sheldon, Delinquent Youth, pp.836–8. 83 For a survey of the field edited by two of its leading exponents, see Anthony Walsh and Kevin M. Beaver (eds), Biosocial Criminology, Abingdon: Routledge, 2008. For a more critical appraisal, see Nicole Rafter, The Criminal Brain: Understanding Biological Theories of Crime, New York: New York University Press, 2008. 84 Ibid., Chs 9–10; Davie, ‘Born for Evil?’, pp.43–6. 85 Adrian Raine, ‘Biological key to unlocking crime’, 2004. Available at: http://news.bbc.co.uk/go/pr/fr/-/1/hi/programmes/if/4102371.stm (accessed 15 April 2009). For the context, see Neil Davie, ‘Visualiser le cerveau criminel? Biologie, déviance et la nouvelle phrénologie’, in Michel Prum (ed.), Ethnicité et eugénisme: discours sur la race, Paris: L’Harmattan, 2009, 179–201.

6

The ‘convict stain’ Desistance in the penal colony1 Barry Godfrey

Introduction To the tune of the Beatles’ ‘We All Live in a Yellow Submarine’, visiting English cricket fans serenaded their Australian counterparts during the 2010 Ashes campaign with the refrain: ‘You All Live in a Penal Colony.’ This was another incident, not only in a long history of sporting rivalry, but also another in a long line of taunts and jibes at Australia’s associations with convicts and criminality between 1788 and 1868. As is well known, the Australian colonies in the eighteenth and for much of the nineteenth century were stocked with British criminals who had escaped the gallows, but had been viewed as dangerous enough to be sent to the furthest outpost of empire. The legacy of those beginnings continues to be noted in jokes and in historical publications. ‘Its raison d’être was embarrassing’, Terrill stated of the nation at the time of the Australian bicentennial celebrations.2

Convict heritage The free settlers who followed the convicts into Australia certainly struggled hard to distinguish themselves from the unwilling emigrants who had preceded them. Even in death, distinctions were made, with the graves of convicts, even those who had served their time and who had become free men, angled in a way that marked them out from the respectable dead.3 The nation conceived in original sin faced insidious and long-lasting allegations that criminal inclinations, temperament, and/or habits had been genetically or socially transmitted from convict ancestors to modern-day Australians. The putative ‘convict stain’ has been debated many times in the national media and in the public houses, and it is still routinely mentioned in tourist guidebooks.4 Only in the 1960s and 1970s, when many other established traditions were challenged, did Australians begin to shake off a label that had been around their necks since transportation had ended approximately a century earlier.5 At the start of the twenty-first century, rather bizarrely perhaps, it was revealed that Prime Minister Kevin Rudd’s family lineage contained convict ancestors on both the patriarchal and matriarchal sides of his family – ‘thieves

The ‘convict stain’ in penal colonies 97 and robbers’ – Rudd’s opponents, the Murdoch-owned The Times, gleefully noted.6 In fact, Rudd had never been shy about his heritage and had already boasted of having convicts on both sides of his family – ‘an absolute pedigree’, as he called it – an absolute Australian heritage, he might have said. Indeed, this feature of his family line placed him squarely in the company of approximately two million fellow Australians who also shared a convict heritage. Currently, the experiences of convict ancestors’ lives are celebrated in many published books.7 A connection back to Australia’s convict-founding fathers is no longer a thing to hide. Instead, the convict stain has become a mark of pride rather than a mark of stigma, although the reality of convict life, and the means by which they reformed their lives (if indeed they did), remains rather less known to the public consciousness. We should not be surprised by this since the ways in which offenders have changed their lives around has received very little attention from historians. Moreover, the appetite of the public is capricious and can be fickle. While there is a good deal of media appreciation for the country that made good despite its insalubrious past, the majority of people tend to believe that, like ‘leopards that never change their spots’, criminals seldom change their ways.

Transportation, desistance and change The chapter will expand on previous work in this area to explain how convicts were able to remake their lives in a new land.8 It will then go on to explore two concepts that may take forward debates about the process of desistence from offending, in both the historical and the modern setting. The first of these is the concept of ‘good enough desistance’. Criminals are a varied group of individuals. They experience onset into offending at different points in their lives (though usually as juveniles), and they end their careers at different points and for different reasons – when they receive enough support or find reasons to stop offending, when they get too old to carry on offending, or when they die. Some experience regular bouts of incarceration, others are luckier. Some are never caught. Work by scholars such as Stephen Farrall, Maruna, McNeill and Whyte and others, has explained that desisting from crime can be a slow and uneven process, and that many people can continue to offend, even though the frequency of their offending reduces, or the offences they commit progressively become less serious.9 What of those who do commit offences less regularly, or commit more minor crimes, but who continue to do so for the rest of their lives? Obviously, they are doing less harm to society (and themselves in all likelihood), but is that good enough? Is it sufficient to transform burglars into shoplifters? What would constitute ‘good enough’ desistence? The second of these concepts discussed is the importance of ‘pace of change’ in the progress of offenders towards rehabilitation. The decisions that individual offenders make when stopping or slowing their offending are embodied and psychological, individual and societal.10 The factors that

98 Barry Godfrey influence their decisions are connected to their relationship-networks and also to their wider environment.11 There remains no simple formula that can be successfully applied to each offender – no magic bullet – yet certain factors such as relationship formation and gaining employment could be said to be generally supportive of desistence. Possibly because the desistence factors that have been identified operate in the present, or within discrete periods, and concern individual offenders, criminologists and policy theorists in the modern period have overlooked a factor that is traditionally the province of historians – changes in society that occur over long periods of time. In particular, it may be possible to identify the pace of change in society, and to chart how this impacts on the behaviour of individuals in that society (in this case, their propensity to desist from offending). Changes in the crime rate have been examined in relation to changing economic cycles but always at the aggregate level. What, however, is the impact of economic shifts, or the growth or decline of societal infrastructure at the individual level? Does a society ‘on the up’, with growing levels of social infrastructure (booming economy, libraries, museums, educational establishments, social clubs, healthcare facilities, welfare provision, sporting clubs, and so on) support desistence in individuals? If it does, is it the pace of change that encourages desistence too – does the dynamism of fast-growing societies encourage desistence more than a slow-growing society? Do declining communities inhibit or retard processes of rehabilitation? With the data collected as part of a number of historical projects, it may now be possible to attempt to answer some of these questions for the first time.12 This chapter begins the process of thinking about these issues, examining the penal colonies of Tasmania and Western Australia as its starting point.

Origins and development of the transportation system The eighteenth-century system that underpinned the humorous cricket songs and the sardonic taunts was the decision of the government to cast criminals away from British shores on a major scale. A will towards the abandonment of capital sentences for certain felons in Great Britain had caused debate as to what alternatives existed for the proper punishment of transgressors from the late sixteenth century, when the issue of removing overseas persistent offenders had first been discussed seriously, and a number of schemes were tentatively tried during the seventeenth century, starting in 1609. The focus was on those who were seen as incorrigible in their persistence in roguery.13 In 1718, the British Parliament officially adopted a policy of convict transportation for those who it was not appropriate to send to the gallows, but who were considered either dangerous or a drain on society.14 The Transportation Act 1718 banished British convicts to the American colonies for sentences of seven or fourteen years and the sentences meted out by the major criminal courts eventually saw approximately 50,000 offenders shipped in shackles from Liverpool, Bristol and London to colonies in eastern North America (mostly to Massachusetts,

The ‘convict stain’ in penal colonies 99 Maryland, Virginia and North Carolina). On arrival they could be sold by the ships’ captains to agents supplying labour to mills and plantations. Indeed, the free settlers who received them were allowed to buy convicts throughout (and sometimes beyond) their official sentences. The convict men and women served as labourers to several of the colonies in eastern North America between the mid-seventeenth century until American Independence in 1776.15 The British government concluded that it needed a new penal site after the American colonies had revolted and refused to serve any more as a convict repository. Australia offered the advantage that it was vast, largely unpopulated, and far enough away to discourage convicts from returning (although a good many did, unofficially). The ‘First Fleet’ carried 750 convicts to New South Wales in 1788, but when colonists in the eastern colonies agitated against more convicts arriving, the ships were diverted away from New South Wales to add to the population of Van Diemen’s land. By the 1850s, colonists in Van Diemen’s land (later known as Tasmania), also began to oppose any further importation of convicts and in 1856 transportation was halted.16 Thereafter, only the Swan colony in Western Australia (Fremantle/Perth districts) was willing to take convicts; and, in all, approximately 10,000 convicts were transported to Western Australia between 1850 and 1868, advertised as a temporary expedient in order to feed their labour needs.17

The courts and the everyday convict experience Some have described the routes that individual people took through this probationary experience and the uneven progress that some of them made on their journey to freedom. There have also been publications that have explored the fortunes of particular convicts, especially while they were subject to convict regulations.18 This chapter attempts to link data from before the transportation moment, together with the convict experience, and also with details of life after emancipation. It also attempts to trace the involvement that ex-convicts had with the civil courts (the magistrates’ courts’ of Perth, which also covered Fremantle, and Hobart), which has tended to be ignored by researchers. By layering together data from convict records, English census records, English Assize and Quarter Sessions court records, and Australian magistrates’ courts, it has been possible to compile information on the personal lives, offending and employment careers of people transported to Western Australia and also to Tasmania, and to comment on the progress towards desistence that they made.19 There was frequent press comment about recidivists – ‘More Horrible Outrages by Ticket of Leave Men’, for instance.20 What evidence is there, however, of the recidivism that would betray the convict stain, and what evidence is there that criminal careers continued for a significant length of time after transportation? Aside from an abiding contemporary belief in the intergenerational transmission of criminality (which was fallacious),21 it must have been the regular appearance of convicts and ex-convicts in court that caused a sustained belief in a criminal stain that echoed down the generations.

100 Barry Godfrey The everyday involvement that probationers and emancipated convicts had with the lower courts is not well documented, possibly because this would require heavy data collection and transcription, labour-intensive crossreferencing and a full set of court registers, but this work (if it were done comprehensively) would be illuminating. This chapter reports on some limited sampling of Australian court records, but even so, the results are intriguing. In the main, convicts appear to have found themselves before the lower rather than the higher courts (Superior Court records rarely featured convicts) or before officials in the penal colonies.22 Records from the magistrates’ courts reveal that a significant percentage of offences coming before the courts were committed by convicts and emancipists during the convict period (60 per cent in Perth, 1854, 40 per cent in Hobart in 1836). However, the majority of these offences were the kind of common-or-garden offences committed by men right across the British Empire – for example, charges for drunkenness, fighting and low-level public order offences.23 In Perth in the mid 1850s, about half of the population of the colony (54 per cent) were convicts, with only 46 per cent being free settlers or the children of free settlers.25 The figures show that about half of the offences dealt with in court were committed by those at some stage of the probation or convict system, and therefore it would be reasonable to conclude that rates of crime among the free and unfree were very similar. As Finnane has pointed out, however, the demography of settler communities is different from convict colonies.26 The children of settlers were included in population figures, but rarely appeared in court statistics, because they were under the age of criminal prosecution. Taking those children out of the calculation reveals that convicts were actually over-represented in the criminal courts. As time went on, and the convict system petered out in Australia, convict and ex-convict groups still committed disproportionate amounts of crime (given their numbers), respectively, in Western Australia and Tasmania). In Perth, in 1870, twelve years after transportation had ended, they were responsible for about a third of all crimes.27 They still figured disproportionately highly in the 1880s (albeit at a lower rate due to the declining number of Table 6.1 Offences in Perth 1854–1880, percentage of unfree defendants24 Offences

1854

1870

1880

Minor violence Minor property Major violence and major property Disorder Regulatory (prison, courts and probation) Regulatory (non-convict) Total cases (%) Total cases (number)

39 60 50 41 98 28 60 550

64 74 92 77 98 46 75 2974

50 52 88 66 100 43 64 1536

The ‘convict stain’ in penal colonies 101 Table 6.2 Status of those prosecuted at Hobart court 1836

Free Unfree

1870

1880

1890

No.

%

No.

%

No.

%

No.

%

168 118

59 41

385 283

58 42

534 217

71 29

592 83

88 12

Table 6.3 Offences committed by convicts/emancipists (total offences in brackets)

1836 1870 1880 1890

Property

Public order

Violence

Regulatory non-convict

Convict Total regs

14 (15) 38 (58) 34 (69) 8 (39)

20 (129) 286 (418) 272 (522) 137 (391)

0 (14) 3 (54) 1 (55) 0 (188)

17 (120) 23 (131) 3 (93) 1 (49)

66 1 0 0

117 (278) 351 (661) 310 (738) 146 (667)

surviving convicts and ex-convicts). So, by 1880, twenty-five years after transportation to Tasmania had ceased and over a decade since convicts had been last conveyed to Western Australia, approximately one in three of the defendants who appeared in court had a convict history. Numbers of the convicts who had arrived in Perth and Hobart in the 1850s must have died by 1880, and those who had survived would have been advanced in age. However, because Perth magistrates’ court documents routinely recorded the convict number (when there was one) of all those accused of crimes and they also recorded whether men were born free or were ex-convicts, and Hobart court registers similarly recorded whether defendants were free men, natives to Tasmania or convicts (with the name of the ship they had arrived on also recorded), it is possible to trace the length of some criminal careers (see Table 6.4). In Perth, in 1880, nearly one in ten men transported between 1861 and 1868 appeared in court. More surprisingly, about one in twenty men transported before 1861 also appeared in court. This means that a significant number of Table 6.4 Appearances in Perth court and date of arrival in Western Australia, 188028

Transported in 1850–55 Transported in 1856–60 Transported in 1861–68 Born free

Number accused

Total number transported (% of total)

% of those transported who offend in 1880

152 88 364 436

3706 (38.2%) 1796 (18.5%) 4198 (43.3%) 0

4.1 4.9 8.7 0

102 Barry Godfrey Table 6.5 Appearances in Hobart court, 1820 and 1836, with date of arrival in colony 1820

1803–1810 1811–1815 1816–1820

1836

Number

%

Number

%

2 4 27

6 12 82

6 27 80

5 25 70

transported men continued to offend for decades after their pardons were granted and their time was done. Data on the percentage of convicts who offended in Hobart long after their sentence had expired is not currently available, and the data for 1820 and 1836 does not involve large numbers of people. However, the data indicates that over twenty years after their arrival in Tasmania, ex-convicts were still, as in Perth, committing offences (constituting about one in twenty defendants in Hobart magistrates’ court). As stated earlier, in general the offences they committed were low level – alcohol-related disorderliness and regulatory offences in the main. They were not, on the whole, serious crimes, although some serious offending did occur, of course, as the earlier extracts from The Mercury showed. However, rather than thinking that the existence of the convict legacy is proved by this evidence of bad character, and rather than thinking of this continuing low-level offending as evidence of a lack of reformation, it might instead be useful for us to employ a concept of ‘good enough desistence’ or ‘imperfect rehabilitation’. This would describe convicts and emancipists who struggled hard to make new lives but who occasionally fell foul of the law, usually being involved in an episode of drunkenness or a breach of some regulatory offence. Is it now possible to employ a distinction between those who carried on committing serious offences – of which there were very few – and those whose offending stopped or carried on at a very low level (drinking, vagrancy etc.), of which there were many examples.

Interpreting the evidence It appears that the mass of convicts transported to Western Australia faced many challenging circumstances, which many overcame, but which some did not. The experiment in transportation was born out of expediency and the British search for a convenient place to warehouse their problem populations. The system suited the needs of the Australian settlements, at least until the mid nineteenth century. The convicts made a great contribution to the fabric of Australian towns and cities, and subsequent generations of children of convicts would open up the agricultural hinterland, build beautiful cities, fight at Gallipoli and contribute to society in a myriad of ways. For those expirees

The ‘convict stain’ in penal colonies 103 who could adapt to the colonial life, and who had the support of friends, family, employers and possibly other community groups, and also a bit of luck along the way, new opportunities opened up. For others, emancipation from convict status still left them facing a hard struggle to survive and prosper. No wonder some turned to drink and ended up in court for disorderliness and other minor offences. So why did some of the transported men keep out of trouble, while others continued to find themselves before the court? Why were so many low-level offences committed by convicts? Why did they not continue to offend at a higher, more serious level? Perhaps transportation hit many people so hard that all they were left with was a washed-up life, alcoholism, and drifting both through life and the colony.29 The punishment of their criminal past impeded a criminal future, with many left incapable of carrying on a life of offending because they were physically incapable of doing so. This would be consistent with the findings of previous studies of habitual serious offenders in the nineteenth and twentieth centuries, where long prison sentences or consecutive incarcerations tended to quash criminal careers and lives in equal measure. Modern criminological studies of desistence from crime offers us additional reasons by way of explanation.30 Many researchers have suggested that marriage and relationship formation are important in stabilising or reducing individual offenders’ propensity to offend; and, indeed, many convicts found a partner and did actually settle down. They also found employment, which provided financial benefit, use of time and association with good role models, and institutional support, all of which supported desistence from offending. Convict labour was the foundation of social and economic policy in Western Australia and Tasmania, and unfree labour brought about the changes in infrastructure and the physical fabric of the colonies which eventually brought them success. This brings us to the importance of ‘place’, which has been much less discussed by desistence experts (although it has long received attention from criminologists who have investigated reasons for onset, or persistence in offending – indeed, dating back to the Chicago School). This can be understood as the general ‘feel’ of a place, or ‘habitus’; how individuals react and relate to their environments, the extent to which social institutions have been developed; and how well supported are the important weak social ties that stretched beyond kin to acquaintances, neighbours and people in the locale.

Physical context to the convict heritage in Western Australia and Tasmania The last convict ship, the Hougomont, docked in Fremantle harbour on 9 January 1868, the last tranche of convicts disembarked into a very different colony, not just from that of its origins in 1829 but also from that of 1850, when labour shortages had threatened the continued progression of the colony. The addition of cheap convict labour during the following years had reinvigorated the colony, as its infrastructure and community facilities

104 Barry Godfrey demonstrated. Perth had become ‘a viable city which acted as a social net that dragged in more and more settlers’.31 After the ending of transportation in 1868 (or, strictly speaking, by then penal servitude overseas), there were, in 1871, just under six thousand people in Perth, a city which now boasted a cathedral, a town hall and other substantial government buildings, as well as a boys’ school. It had continued to grow, acquiring more public buildings, including another cathedral and a new courthouse. As a result of the gold rushes of the 1890s, the population of Perth grew exponentially, first to 36,824 people and then, by 1901, to 107,203.32 It is also easy to draw a similar pen portrait for Hobart demonstrating developments during both the convict and the postconvict periods. Early colonial structures in Hobart, such as the docks (constructed in 1808) and the Commissariat’s Store (built in 1810) were constructed using convict labour, and were used to bring in labour and supplies in order to establish the colony. The nascent town grew and began to attract free settlers, although some thought that the character of the incoming adventurers and parvenus was not much better than that of the convicts.33 The town grew from a collection of crude dwellings into a rudimentary town until Governor Macquarie encouraged a more planned element and the building of new civic institutions, such as a courthouse, a barracks, a new market and a hospital.34 This infrastructure served a population of approximately ten thousand people by 1820, and thereafter the exploitation of Tasmania’s natural resources encouraged further inward migration. Exporting wool and wheat sustained Hobart in the 1820s and 1830s (by which point the population of Hobart Town was over twenty thousand). Social and political infrastructure was also put in place over that time. A Newspaper Reading Room was established in 1822 for the literate, and to encourage literacy generally a number of primary schools were built. In 1828 there had been just eight schools, but by 1835 there were four times that many, with that number continuing to increase steadily as the century progressed. By 1858, Hobart Town had grown to occupy approximately a square mile, the population was nearing sixty thousand and economically, visually and socially the town was very different from the place at which convicts had first landed. Hobart now had a Supreme Court (1824), Botanical Gardens (1828), a new Government House (built in 1829 to replace its dilapidated predecessor) and the Theatre Royal (1834) for entertainment. Tasmania, including Hobart, experienced an economic downturn in the 1840s, with labour shortages in the 1850s as men left to find gold in Victoria. Hobart’s development slowed and public buildings were not erected as quickly as they had been (although Hobart was clearly already a place of importance). St David’s Anglican Cathedral was only built in 1868, followed two years later by a new Public Library (1870). The economic fluctuations continued, with the boom years of the 1880s being followed by the bust of the 1890s, when recession and economic downturn returned to Hobart. Why is this important? The issue of environment or innate inclination as inducements to crime have already been discussed, and the debates were an

The ‘convict stain’ in penal colonies 105 important element in contemporary attitudes towards offending and the likelihood of desistance, and so in the estimations of culpability and blame that are the focus of this volume. Thus, a discussion of the success of the environments in which convicts found themselves, especially as their sentences expired and they became free men, serves to contextualise the complexity of the desistence process. As Godfrey and Cox have argued, ‘The integration of convicts into respectable society’ was complex and went beyond events such as marriage and employment.35 It was not just a matter of getting married and finding a job. What was required was the existence of a ‘respectable society’, prepared to ‘reach out’ and thereby to ‘incorporate and accommodate those who could be tolerated’. The existence of the institutions of an established civil society were thus essential, including churches and a variety of agencies, prepared and able to help, which would also include ‘political and trade union organizations looking for recruits’.36 As various scholars have pointed out, the existence of such a sizeable number of convicts and former convicts amounted to a community that could not, safely, be excluded from everyday society, including politics and unions, for any length of time.37 At the same time as nineteenth-century demographic realities saw the incorporation into respectable society of the working classes in Britain, so Australian convicts (or at least a fair proportion of them) had to be ‘brought into society, brought into employment, brought into social networks, brought into repute – in order for that society to progress’.38 Indeed, the considerable pace of change in Hobart and Western Australia may have given individuals an impetus to involve themselves in the growth of social infrastructure, building social capital as they went, and those processes of societal and individualistic change combined to increase pro-social attitudes and encourage desistence from offending.

Conclusion Further research will be needed before anything more conclusive about ‘pace of change’ and its power to impact upon rates of desistence/persistence can be said.39 Not least, it would be critical to construct a rigorous methodology to investigate how, and in what ways, the changes in the pace at which society was growing impacted on the lives of individuals (examining rates of marriage, number of children born, gross domestic product and average wage rates, perhaps?). Nevertheless, should that be achieved, it could open up new vistas and perspectives on desistence/persistence in growing/declining communities, thus contextualising further an understanding of the issues surrounding blame and culpability, as well as locating and illuminating the role of shame as an inherited factor. ‘Evidence’ for the existence of a convict stain in Australian heritage is baseless.40 Instead, the successful reformers tended to get married and have good children, largely because they married and had children, as well as gaining employment and some support from the wider community. Those transported men who did not reform tended to stay childless, and also drunk

106 Barry Godfrey and dissolute. Their criminality died with them. The stain, however, persisted as a cultural phenomenon for over a century. What that tells us is that people (in the nineteenth century and today) tend to believe that criminals never stop offending, and so never stop blaming them, even though our previous studies show that the majority of even the most persistent offenders do stop offending.41 There was, and still is, a persistent belief that criminal traits passed down from father to son, even though our previous study of the intergeneration transmission of criminality shows that the rate was actually very low.42 The ‘stain’ ultimately lost its power in the 1960s and 1970s not because there was so little evidence to sustain it, but because, ironically, new pride in convict heritage became politically expedient for a more confident and nationalistic Australia, a country that had developed at such a pace as to encourage involvement, integration and desistence from crime. In growing this new society, Australia had to put aside criminal pasts and accept that some desistence was better than none. Perhaps other societies today would benefit from such an approach.

Notes 1 Some of the data in this chapter was originally published in B.S. Godfrey and D. Cox, ‘The “Last Fleet”: Crime, Reformation, and Punishment in Western Australia after 1868’, Australian and New Zealand Journal of Criminology, 41(2), 2008, 236–58. 2 R. Terrill, The Australians: The Way We Live Now, Sydney: Doubleday, 1987, p.28; H. Mackay, Reinventing Australia: The Mind and Mood of Australia in the 90s, Sydney: Angus & Robertson, 1993. 3 S. Potter, ‘Alfred Daniel Letch. A white-collar convict’, in J. Sherriff and A. Brake (eds), Building a Colony: The Convict Legacy, Studies in Western Australian History, 24, Perth: Centre for Western Australian History, 2006, p.44; B. Reece, ‘Writing about convicts in Western Australia’, in Sherriff and Brake (eds), Building a Colony. 4 There is considerable evidence that nineteenth-century Australians believed that the propensity to criminality was transmitted either socially or biologically from parent to child (more especially from father to son). The residents of Perth and Fremantle were warned by commentators in the eastern colonies that the convict heritage would ensure persistently high crime rates would blight their community for years. See R. Hughes, The Fatal Shore: A History of Transportation of Convicts to Australia 1787–1868, Sydney: Collins Harvill, 1987, pp.579–60; Henry Reynolds, ‘“That Hated Stain”; the aftermath of transportation in Tasmania’, Historical Studies, 14(53), 1969, 19–31. 5 R.D. Lambert, ‘Reclaiming the ancestral past: Narrative, rhetoric and the “convict stain”’, Journal of Sociology, 38(2), 2002, 111–27. 6 The Times, 1 August 2008. 7 See, for instance, L. Frost and H. Maxwell-Stewart, Chain Letters: Narrating Convict Lives, Melbourne: Melbourne University Press, 2001; A. Hasluck, Unwilling Emigrants: A Study of the Convict Period in Western Australia, Oxford: Oxford University Press, 1959; D. Dunstan, Owen Suffolk’s Days of Crime and Years of Suffering, Melbourne: Australian Scholarly Publishing, 2000; R. Erickson, The Brand On His Coat: Biographies of Some Western Australian Convicts, Nedlands, WA: University of Western Australia Press, 1983; T. Garth Hyland,

The ‘convict stain’ in penal colonies 107

8 9

10 11 12 13 14 15

16 17

18 19

20

Thanks a Lot, Guv! The Stories of 8 Convicts, from Trial in England to Detention and Freedom in Van Dieman’s Land, Brisbane: Impressed Publishing, 2004; H. Maxwell-Stewart and S. Hood, Pack of Thieves? 52 Port Arthur Lives, Port Arthur: Port Arthur Historic Site Management Authority, 2001. Godfrey and Cox, ‘Last Fleet’; Frost and Maxwell-Stewart, Chain Letters; Maxwell-Stewart and Hood, Pack of Thieves; H. Maxwell-Stewart, Closing Hell’s Gates: The Death of a Convict Station, Sydney: Allen & Unwin, 2008. S. Farrall, Understanding Desistence from Crime, Cullompton: Willan, 2005; S. Maruna, Making Good: How Ex-Convicts Reform and Rebuild Their Lives, Washington, DC: American Psychological Association Books, 2001; F. McNeill and B. Whyte, Reducing Reoffending: Social Work and Community Justice in Scotland: Social Work with Offenders in Scotland, Cullompton: Willan, 2007. D. Gadd and T. Jefferson, Psychosocial Criminology, London: Sage, 2007. Farrall, Understanding Desistance. ESRC RES–062–23–0416; Leverhulme Trust funded project F/00130/H; British Academy Large Grant project LRG–45478; and the Historical Violence Database. Available at: http://circ.osu.edu/researchprojects/hvd/. See J. Beattie, Crime and the Courts in England, Princeton, NJ: Princeton, 1986, pp.470, 619; Norma Landau, Law, Crime and English Society, 1660–1830, Cambridge: Cambridge University Press, 2002, p.139. See W. Oldham, Britain’s Convicts to the Colonies, Sydney: Library of Australian History, 1990. For a discussion of the process, see G. Morgan and P. Rushton, Eighteenth Century Criminal Transportation: The Formation of the Criminal Atlantic, Basingstoke: Palgrave, 2004; G. Morgan and P. Rushton, Rogues, Thieves and the Rule of Law: The Problem of Law Enforcement in North East England 1718–1800, London: University of London Press, 1998; A.R. Ekirch, Bound for America: The Transportation of British Convicts to the Colonies 1718–1785, Oxford: Clarendon Press, 1987. The transportation of criminals to the American colonies was a major cause of Republican discontent, but, as Ekirch points out, the practice did actually continue for a short period, through private entrepreneurs, after the War of Independence, ending in 1785. M. Finnane, Punishment in Australian Society, Oxford: Oxford University Press, 1997; Hughes, Fatal Shore. The history of transportation in Western Australia is not much studied (in Hughes, The Fatal Shore, just seven pages were dedicated to Western Australia), possibly because after the Penal Servitude Act 1857 it was formally labelled penal servitude overseas, with an official expectation that those thus transported would return to Britain. For some comment, see A.F. Calvert, Western Australia: Its History and Progress, London: Simpkin, Marshall, Hamilton, Kent & Co, 1894; F. Crowley, Australia’s Western Third: A History of Western Australia from the First Settlements to Modern Times, London: Macmillan, 1960; B. Kingston, The Oxford History of Australia, vol. 3, 1860–1900, Oxford: Oxford University Press, 1988; P. Statham, ‘Why Convicts I: An economic analysis of colonial attitudes to the introduction of convicts’, Studies in Western Australian History, 4, 1981, 1–10. See Frost and Maxwell-Stewart, Chain Letters; Maxwell-Stewart and Hood, Pack of Thieves; Maxwell-Stewart, Closing Hell’s Gates; Godfrey and Cox, ‘Last Fleet’. Ibid. on Western Australia; on Tasmania, see B. Godfrey, ‘Time, place, and “pace of change” in convict rehabilitation’, unpublished paper presented at Crime, Violence and the Modern State III: Law, Order and Individual Rights – Theory, Intent and Practice, 2011, September 8–10, Université Lyon Lumiérè. The Mercury, 26 July 1860. On the same day an editorial in the same Australian paper went on to comment that ‘There is something absolutely sickening in being called upon day after day to record the perpetration of the most horrible crimes by

108 Barry Godfrey

21 22 23 24

25

26 27

28

29 30 31 32 33 34 35 36 37 38 39 40 41 42

the monsters now being turned loose amongst us with tickets-of-leave from Port Arthur.’ On this point, see B. Godfrey, D. Cox and S. Farrall, Criminal Lives: Family, Employment and Offending, Oxford: Oxford University Press, 2007. Maxwell-Stewart, Closing Hell’s Gates; E. Jenks, A History of the Australasian Colonies (from their foundation to the year 1893), Cambridge: Cambridge University Press, 1896. Godfrey and Cox, ‘Last Fleet’. Figures constructed from published sources and court registers. In the category of Minor Violence we include assaults and threats. Major Violence and Property is made up of robberies, burglaries and housebreakings; and Major Violence includes murder, manslaughter, rape, wounding, and aggravated assault. In Public Disorder are cases of obscene language, drunkenness and profanities. Regulatory (prison, courts and probation) relates to regulations breached by convicts, i.e. absconding from lawful custody, breaching ticket-of-leave conditions and curfews. Nonconvict Regulation comprises breaches of various bye laws, i.e. grazing cows on recreational land, cruelty to animals and so on. Van D. Driesen, ‘Convicts and migrants in Western Australia 1850–1868’, Journal of the Royal Western Australian Historical Society, 72(1), 1986, 50–59; D. Van Driesen, Essays on Immigration Policy and Population in Western Australia 1850–1901, Nedlands, WA: University of Western Australia Press, 1986. Finnane, Punishment. In fact, 36 per cent of crimes were committed by freemen, 53 per cent by reforming convicts, 11 per cent by TL/CP (in 1880 convicts/expirees had a higher offence rate than free men: 1.6 offences per offending convict to 1.3 offences per offending free man). This table is generated from the actual number of transportees and freemen appearing in a three-month period and multiplied by four to get an annual figure (sixty convicts have unknown number or are allocated convict numbers after transportation ended; these are not included in the figures presented). Table originally featured in Godfrey and Cox, ‘Last Fleet’. Godfrey and Cox, ‘Last Fleet’. See Farrall, Understanding Desistance; J.H. Laub and R.J. Sampson, ‘Understanding Desistance From Crime’, in M. Tonry (ed.), Crime and Justice: An Annual Review of Research, 26, 2001, 1–69; Maruna, Making Good. Godfrey and Cox, ‘Last Fleet’, p.241. Ibid. See also M. Vivienne, Travels in Western Australia, Being a Description of the Various Cities and Towns, Goldfields, and Agricultural Districts of that State, London: William Heinemann, 1902. J. West, History of Tasmania, 2 vols, Launceston: Henry Dowling, 1854, p.121. M. Roe, The History of Tasmania to 1856, Hobart, 1856, p.34. Godfrey and Cox, ‘Last Fleet’, p.241. Ibid. See, for instance, S. Nicholas (ed.), Convict Workers: Reinterpreting Australia’s Past, Melbourne: Cambridge University Press, 1988. Godfrey and Cox, ‘Last Fleet’, p.241. See, for instance, S. Niven and D. Stewart, ‘Resettlement outcomes on release from prison’, Home Office Findings, 248, London: Home Office, 2005. See G. Wood, ‘Convicts’, Journal of the Royal Western Australian Historical Society, 8(4), 1992, 177–208. B. Godfrey, D. Cox and S. Farrall, Serious Offenders: A Historical Study of Habitual Criminals, Clarendon Series in Criminology, Oxford: Oxford University Press, 2010. Godfrey, Cox and Farrall, Criminal Lives.

Part III

Issues of authority in shame, blame and culpability

7

Penance, compensation, terror The theory and practice of capital punishment in early modern France Paul Friedland

Introduction Undoubtedly, the best known reading of early modern capital punishment is that offered by Foucault’s seminal text Discipline and Punish. Foucault seems to characterise every crime as an affront to the sovereign, and every punishment (particularly capital punishment) as a sovereign attempt to restore authority and deter future criminal acts through a spectacle of ‘terror’: By breaking the law, the offender has touched the very person of the prince; and it is the prince – or at least those to whom he has delegated his force [i.e. the executioner] – who seizes upon the body of the condemned man and displays it marked, beaten, broken. The ceremony of punishment, then, is an exercise of ‘terror’.1 However, Foucault’s understanding of pre-modern punishment is more nuanced than implied here. He carefully stresses that ‘punitive measures are not simply ‘negative’ mechanisms’, ones that make it possible to repress, to prevent, to exclude, to eliminate. They are ‘linked to a whole series of positive and useful effects which it is their task to support’.2 Distinct from whatever executions may have expressed about sovereign authority, Foucault acknowledged that certain aspects of public punishment involved a ritual re-enactment of the crime itself: A public execution justified justice, in that it published the truth of the crime in the very body of the man to be executed . . . There were even some cases of an almost theatrical reproduction of the crime in the execution of the guilty man – with the same instruments, the same gesture.3 Nevertheless, perhaps because of the rhetorical power of such quotations, Foucault’s characterisation of public executions as a display of sovereign might has been expanded upon by scholars from a variety of disciplines. To cite one example, the sociologist David Armstrong has recently argued that the crowds who watched executions

112 Paul Friedland saw in the marking of one body by another an overt manifestation of the power of sovereignty over its subjects. Thus for the ordinary people power was glimpsed only with the concrete spectacle of the sovereign’s hold over other bodies.4 However, although this characterisation of executions has been very influential, other scholars have proposed very different readings. Michel Bée, for example, has focused on the ways in which spectators experienced executions, not as a ‘terrible’ spectacle, but rather as a profoundly moving, even spiritual, ceremony.5 Esther Cohen has explored the ways in which medieval punishments served as rituals of ostracism and banishment much more than as spectacles of didactic deterrence.6 Several historians of Britain have noted a propensity toward a boisterous, almost carnivalesque attitude among crowds, an image apparently at odds with the image of cowed spectators conjured up by those who imagine a spectacle of terror.7

Contextualising law and punishment These various readings can appear mutually exclusive. It seems unlikely that pre-modern spectators who watched public executions were, at one and the same time, terrified into submission, spiritually moved, partaking in a ritual of communal ostracism and behaving in a festive manner as if they were watching some sort of entertainment. So which reading is the most apposite? This chapter proposes an approach to the subject that permits a multiplicity of interpretations, one that perceives capital punishment less as a coherent and unified concept and more as something comprising a bundle of different conceptual strands, each with its own historical trajectory. The suggestion is that the theoretical intent of punishment envisaged by jurists and government officials, the actual penal practices that developed over time, and the ways in which people watched executions, may have had little to do with one another. Indeed, they may have functioned largely at cross-purposes, not only in the distant past, but in modern times also. A rough outline sketch of the historical evolution of these separate conceptual strands (the theory, practice and ways of watching capital punishment) provides an essential contextualisation for understanding punishment in the modern period.8 The dominance of the paradigm of deterrence in modern thinking means that an exploration of the logic of punishment at a time when deterrence was not the overriding penal principle has the potential to offer significant insights not only into past theories and practices but also into present-day preconceptions about the nature of punishment. The period between the fall of Rome in the fifth century and a renaissance in Roman legal studies towards the end of the eleventh century presents such a moment. Deterrence had been a cornerstone of Roman penal theory, but the decay of Roman civil and judicial institutions foregrounded a very different set of penal strategies. A cursory glance at the surviving legal texts reveals multifarious reflections on punishment that had little to do with deterrence.

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The laws of the Salian Franks, who had conquered large portions of the former Roman province of Gaul, were almost entirely unconcerned with future deterrence, being infinitely more interested in addressing specific crimes that had already occurred. To the modern eye, the Pactus legis Salicae looks very much like a price list. The section ‘Concerning the Theft of Pigs’ contains twenty articles, stipulating fines that vary, depending on whether the pig was one year old or two years old, whether the swineherd was present or not, and whether the pig was a boar (gelded or non-gelded) or a sow (breeding on nonbreeding). The same punctilious levying of fines was applied to different ways of stealing cattle (fourteen different situations), sheep, dogs and birds (around five different ways each), and even to the theft of bees.9 The basic principle of Salic law was that if one committed an act that had negative consequences, one had to make things right. If someone stole a pig, then the thief had to ‘undo’ what had been done: the pig had to be returned to its owner (or its price paid to the owner) and that owner had to be compensated for loss of use, so that things could be made right, or restored, as much as possible, to their pre-existing state. Essentially, Salic law functioned according to a logic that is not unlike the one that governs modern insurance companies. The essential question that it asked was: What will it cost to compensate for damages? This question was applied to all ‘injuries’, whether caused by accidental harm or intentional acts. If an individual killed someone accidentally, then that individual was required to compensate the victim’s family. Equally, if an individual committed homicide intentionally, that individual was also bound to compensate the victim’s family. Rather than reflecting the degree of intentionality, the punishment was almost entirely a function of the worth of the victim: the wergeld, literally the price of a man in gold. The more valuable someone was, the more expensive he or she was to kill. Interestingly, Salic law was not at all concerned with controlling what we would today call ‘crime’. There seems, generally, to have been little conception of crime in the modern sense of the term. Salic penal law was interested only in individual, separate acts of harm and in consequent appropriate compensation. There was very little corporal or capital punishment. Corporal punishment usually took place only if the offender was a slave and did not have enough money to pay compensation when, so to speak, compensation was exacted in flesh. Thus, slaves found guilty of petty stealing were fined 120 denarii or, lacking the money to pay, sentenced to 120 lashes of the whip. If a very serious crime was committed, then compensation could be demanded in the amount of a person’s life, meaning that if the offender was free, he or she would be sold into slavery but if the offender was already a slave, then the penalty would be death, almost always by hanging. The death penalty for free Franks was exceptionally rare. Until fairly recently, scholars tended to assume that the Pactus legis Salicae as well as legal texts produced around the same time by other ‘barbarian’ tribes (including the law codes of the Ripurian Franks, the Visigoths and

114 Paul Friedland Burgundians) were representative of a body of ‘Germanic’ law. The obvious differences between these codes, stressing compensation over all other penal principles, and Roman law, with its preoccupation with intent and deterrence, seemed indicative of two discrete bodies of law. One theory held that, at least for a time, Roman and Germanic law coexisted, being applied personally rather than territorially. Roman subjects fell under the jurisdiction of the former: members of the various Germanic tribes were subject to their own respective codes. Another theory saw Roman law surviving only in isolated areas, as a largely scholarly enterprise, with Germanic law codes eventually becoming the law of the land for all, regardless of their background.10 Doubt has been cast recently on the very existence of purely separate Roman and Germanic peoples in this period, on the basis that the various ‘Germanic’ tribes had adopted Roman customs and language long before they become masters of the former empire. Thus, the new rulers may have merely written down certain pre-existing, informal customs traditionally practised in various regions of the empire, which had never been codified. Rather than being the expression of Germanic tribal law, Salic law may instead represent a codification of established Roman customs in provincial areas. Consequently, what previous scholars had interpreted as the supplanting of Roman law may simply have been a gradual decay in the formal judicial institutions of Roman civil society (lawyers, judges, courts, etc.) and their replacement by a less formal, more customary system of law-enabling dispute and injury resolution without recourse to a formal court.11

Rethinking punishment practices Regardless of whether termed ‘Roman’ and ‘German’, or ‘civil’ and ‘provincial’, it seems clear that several different ways of thinking about and practising punishment existed. In addition to the vestiges of Roman law, emphasising deterrence, and codes such as the Pactus legis Salicae, emphasising compensation, the Catholic Church was concurrently developing an entirely different conception of wrongdoing and the process of righting of wrongs. Sinful individuals atoned for their actions through the once-in-a-lifetime performance of public penance. At the beginning of Lent, sinners would appear in church with shaven heads, holding torches of heavy wax. At a designated moment in the service, they would prostrate themselves before the faithful, rolling on the floor and begging forgiveness; the faithful would weep, pray and express compassion for these penitents. This ceremony of self-abasement and compassion would be followed by a ritual expulsion of the sinners, most of whom would be banished for months (sometimes years). During banishment, they would be required to abstain from certain things (meat, alcohol, sexual relations, etc.). At the conclusion of their sentence, they would be welcomed back into the community in a ceremony of reconciliation.12 Rather than existing as discrete approaches to crime and sin, something of a process of cross-fertilisation seems to have occurred. Penance came to

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mirror contemporary conceptions of penal compensation. Instead of undertaking the once-in-a-lifetime act of atonement, sinners began to pay, literally, for their sins, through pro rata monetary fines.13 Conversely, secular compensation punishments began to incorporate certain aspects of public atonement spectacles. By the time of Charlemagne’s Capitulary of 802, punishment apparently had become a hybrid combining payback and public penance. Broadly, penal practices in France in the centuries after the fall of Rome were characterised by the formal merging of compensation and public penance, with Roman conceptions of exemplary deterrence relegated to the margins. Additionally, many disputes between parties were probably settled by less formal, extra-judicial procedures.14 Change occurred towards the end of the eleventh century, with the rediscovery in Italy of the Corpus Juris Civilis, the compilation of Roman legal texts that had been assembled by the Byzantine Emperor Justinian. Justinian’s compilation effected a profound cultural revolution in the theory and practice of punishment, offering a whole system of legal principles that proved enormously compelling to contemporary jurists as well as to sovereign rulers just beginning to lay the bureaucratic foundations of modern states.15 Roman law was infinitely more theoretically complex than the simple system of fines found in Salic law. The crucial distinguishing factor was Roman law’s preoccupation with intentionality and deterrence, as opposed to damages. Justinian’s compilation introduced into European law a form sliding scale of culpability, determined by the absence or presence of malice aforethought: If someone draws his sword or strikes with a weapon, he undoubtedly did so with the intention of causing death; but if he struck someone with a . . . saucepan in the course of a brawl, although he strikes [the blow] with iron, yet it was not with the intention of killing. From this it is deduced that he who has killed a man in a brawl by accident rather than design should suffer a lighter penalty.16 Clearly, this method of adjudicating the amount or degree of punishment was entirely different from that of the Pactus legis Salicae. Roman penal law was much less concerned with rectifying what had already taken place than with preventing crimes in the future. Crimes without intentionality were punished much less severely, because they were largely unpreventable. Crimes plotted in advance could be prevented. Thus, Roman punishments were necessarily public, exemplary and spectacular, so that those contemplating a crime might calculate the potential costs of committing that crime and, ideally, be dissuaded from going through with it. As a passage in the Justinian Code put it: punishments must be public and severe so that ‘the punishment of one [individual] might inspire fear in the greater number’.17 In the wake of the rediscovery of the Justinian’s compilation of Roman laws, infused with intentionality and deterrence, a legal revolution swept through Europe, spreading outwards from Italy into France and Britain initially. Within

116 Paul Friedland two centuries of the rediscovery of the Corpus Juris Civilis, Roman law had achieved a cultural conquest of many of the same territories that, a millennium before, had been ruled by Rome. A new theoretical uniformity settled across Europe, and a kind of narrowing of penal principles took place. Scholars and public officials were united in the conviction that the purpose of punishment was primarily, almost exclusively, to prevent future crime in the public interest.18

French realities In France, the renewed ascendancy of Roman legal theory and practice is clearly seen in the various codifications of customary laws appearing around the turn of the thirteenth century. These compilations were undertaken largely as a way of preventing traditional laws and customs from being swept away in the rising tide of Roman legal theory. Paradoxically, however, the very act of codification, often undertaken by jurists trained in Roman and Canon law, ended up facilitating the intrusion of formal Roman legal principles into customary law. Specifically, even in the earliest customals, the distinctively Roman concern with intent and malice aforethought are perceived to overshadow the traditional concern with compensation and reparation. At the same time as this infiltration of customary law, penal practices were also changing. Not only were they becoming harsher, with corporal and capital punishments applied much more frequently, but they were also becoming more spectacular. At first, the elements of spectacle took the form of crude ‘addons’ to already existing punishments. Around the twelfth century, for example, the pillory began to be used as a means of publicly displaying someone prior to other punishment. In the thirteenth century, fourches patibulaires began to proliferate throughout France. These multiple gallows were constructed on hilltops as a means of maximising the spectacular aspects of simple hangings. It enabled the exhibition of several corpses long after the execution, serving as a warning to those who would flout the law, both maximising and lengthening the didactic potential of punishment. For particularly egregious crimes, it was considered necessary to add something spectacular prior to hanging. Criminals were dragged through streets tied to a hurdle, or mutilated in some fashion before being hanged. It was around this time also that burnings, public drownings, beheadings and executions on the wheel became common, each method providing a particular spectacle to suit the specific crime or the social status of the offender.19 The concept of spectacular deterrence thus dramatically altered punishment practices. An examination only of customary law texts could lead to the impression that Roman conceptions of penal deterrence had completely triumphed, replacing pre-existing principles of compensation and Catholic conceptions of atonement. However, an exploration of the ways that people attended and experienced these spectacles of punishment leads to a more complex realisation. It was around this period of time that the prevailing theory

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of punishment (intended aims) and perceptions of punishment (the ways people understood and participated in public rituals of punishment) began to diverge radically from each other. In other words, people were still attending these spectacles as if they were rituals of public penance rather than spectacles of terror intended to frighten them. Just as spectacles of religious penance had involved the sinner’s public expulsion from the community, so too did secular criminal punishments in medieval and early modern France perform the public ‘outcasting’ of the offender. Although minor crimes were still punished by fines (just as today), the punishment of crimes of a certain degree of gravity began with an induction into liminality, a moment marked by the executioner’s touch. The fundamental importance of this moment can only be grasped if we understand that executioners were not ordinary people who happened to have an unusual job. In pre-modern France, executioners were a people apart, an entire outcast race who married among themselves and who never came into regular contact with other people.20 They wore special costumes and distinctive patches to make them instantly recognisable from a distance. They had a monopoly on the cleaning of sewers; they exacted tribute from lepers and prostitutes. In many ways, they were almost like sovereigns of the underworld, and in keeping with this sovereign status they had the unusual privilege (shared only with the king) of being able to walk into the marketplace and seize a percentage of all goods sold there. Because of the profane nature of their touch, however, they were required to seize their rightful share with a special tin spoon so as not to contaminate the remaining produce.21 The moment, therefore, when this untouchable person actually laid his hand on the body of the convicted criminal was a profoundly transformative moment in which the accused ceased to be (temporarily or permanently) an ordinary member of the community and so safe from the executioner’s touch. Instead, the criminal became, at least for the duration of the spectacle, the executioner’s subject. After the moment of seizure, usually located inside the prison walls where the offender awaited the court’s verdict, the executioner would lead the offender outside, where a public reading of the sentence would be held. The very fact of being seen in public in the hands of the executioner was inherently defaming. For some offenders this public shaming would constitute the entirety of the punishment. They would be displayed in the pillory, which essentially functioned as a device to freeze time, to hold and display the convicted criminal in the executioner’s grasp for several hours, sometimes even for days. Duly chastened, these offenders were then allowed to return to their lives. Those who had committed more serious crimes were required to perform what was called the amende honourable – the fine of honour – which bore an unmistakable resemblance to the traditional spectacle of public penance. They were required to walk barefoot, usually dressed in a long shirt without a belt and carrying a long, tapered two-pound candle. In front of the main door of the church, they had to kneel down and publically beg the forgiveness of God, the king and the law.22 Those being banished, either temporarily

118 Paul Friedland or permanently, were then escorted to the gates of the city and cast out. Permanent banishment, incidentally, was considered to be a form of capital punishment because it entailed what was called ‘civil death’: not only a loss of one’s place in the community but also the forfeiture of worldly possessions. Those who had been sentenced to death went through these same rituals of shaming and atonement, but then, unlike all the others, they embarked on a final procession through town towards the place of execution. During this procession, bells tolled and people lined the streets to watch. In Paris, the condemned would stop before the Convent of Filles-Dieu to receive a glass of wine and a piece of bread as a symbolic, Eucharistic, last meal. They were often handed a little wooden crucifix to carry on the final leg of their journey to the scaffold. The whole procession was not unlike a living tableau of Christ’s journey down the via Dolorosa, which communities traditionally re-enacted on Palm Sunday.23 The prayers and songs of those who attended executions are indicative of the pronounced air of religiosity that often characterised public executions, not only during the Middle Ages, but through the early modern period as well, as in this account of an execution in northern France in 1760: [The condemned] . . . helped with the singing of the Salve Regina, which being finished he kissed the Cross: having turned toward the people, he exhorted them to pray to God for his soul . . . Having received the blows of the iron bar on the wheel, he started singing the Veni Creator. After he had finished the first verse, the public sang the second, the condemned took up the third and so on until the end. He then asked the hangman to beg the people to say the Miserere in Latin for him while he recited it in French. M. Méritte, the priest, took up the Parce Domine, parce populo tuo ne in aeternum irascaris nobis. The public repeated it; then M. Méritte sang the Miserere. After the final verse, the public again repeated Parce populo tuo. Then the priest and the condemned followed with the second verse in a strong and energetic voice. Around the middle of the Miserere the voice of the condemned became weak.24 In certain regions of France, the religious aspects of executions were perhaps more pronounced than in others. In common with parts of Italy and Spain, southern areas of France were home to confraternities of lay penitents who took upon themselves the task of accompanying those condemned to death on their journey to the scaffold. Clad from head to foot in the colour of their confraternity, replete with a large, pointy hat, these penitents (who were ordinary members of secular society but who belonged to these semi-secret brotherhoods as a form both of sociability and public service) helped to imbue the execution of death sentences with an aura of pronounced religiosity.25 The religious nature of executions and the spiritual interchange between the condemned and the crowd are very difficult to square with a characterisation of executions as an ‘exercise of terror’. However, good evidence that rituals of punishment had functions beyond the dictates of spectacular deterrence is

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provided by the fact that if a crime had been committed, but there was no live, human body to be punished, the ritual of execution would take place anyway. An effigy would be substituted for an absent offender and the ritual would be enacted on a straw dummy or his painted image. Alternatively, the execution would itself be represented in a publicly displayed painting. If the offender had died, the punishment would be performed on the cadaver. If the offender had been an animal (if a pig had eaten a child, for example), then after conviction, the punishment would be performed on the body of the animal.26 The ritual of execution was so profoundly important to the community as a means of healing and reparation that it took place even when there was very little hope of a deterrent effect. The practice of punishment, in other words, the ritual itself, unfolded according to a logic that was very different from the prevailing understanding of punishment’s theoretical intent.

‘Watching’ executions There is one last historical trajectory that remains to be mapped: the transformation in the way that people watched executions. Up to the turn of the sixteenth century, executions almost always proceeded along the lines already laid out, with a penitent and remorseful criminal on the one hand, and a crowd of people on the other who found the experience meaningful and moving. In the early sixteenth century, however, a mutation in viewing habits took place when Lutherans convicted of heresy refused the role of the repentant sinner. Instead, these condemned heretics often went to the scaffold joyfully, singing and smiling. This unprecedented behaviour essentially short-circuited the traditional dynamic of prayer and reconciliation, and spectators suddenly found themselves standing back and watching out of sheer curiosity. As one contemporary put it, spectators came to watch a Lutheran be put to death in 1539 in order to see ‘something new’.27 The pre-scripted ritual of atonement, in which actors and spectators knew exactly what was about to transpire, was replaced by a spectacle whose unfolding contained the potential for surprise. One never really knew in advance whether heretics, in their final moments, would repent and go to their death as remorseful sinners, or whether they would remain defiant until the end, singing the praises of the ‘true religion’, and shouting otherwise unmentionable epithets about the established authorities, both religious and secular. While the former might be moving, the latter offered the potential for a radically new spectacle. By the mid-sixteenth century, the idea of executions as spectacle rather than as ritual had spread beyond religious executions to ordinary criminal executions. The first eye-witness accounts appear of people who watched executions out of sheer curiosity and wealthier people began to rent out windows overlooking executions to interested spectators. One of the earliest such accounts is contained in the diaries of Felix Platter. A medical student from Basel, pursuing his studies in Montpellier, Platter recorded that, in July 1555, he dined

120 Paul Friedland with a well-regarded local doctor, who subsequently ‘took me to a house where there were many ladies as well as gentlemen, and from which I watched the execution’.28 This interest among the wealthier classes in watching executions as a form of voyeuristic entertainment continued through the seventeenth and into the middle of the eighteenth centuries. Figures such as Madame de Sévigné traded titbits of gossip with friends and family about the latest executions they had witnessed with an excitement and enthusiasm that strikes our modern sensibilities as odd. For those who could not be present in person, titillating accounts of the latest crimes and punishments were found in Rosset’s Les Histoires tragiques de nostre temps. First published in 1614 and reprinted many times over the next century and a half, it was one of the best-selling texts of the early modern period, no doubt because of its ability to make readers feel as if they themselves were spectators at the executions it described in gleefully tragic detail. Thus, two different ways of watching executions seem to have coexisted through the early modern period. The older way, which involved remorse and prayers and sympathy, and the newer way, which had nothing to do with remorse, but was all about spectacle and excitement. To a certain extent, whether one watched an execution as a religious ritual or as a curious exhibition depended upon one’s socio-economic position. At the same event, one could expect to find some praying and singing around the scaffold, while well-todo others looked on from windows as if at a show, eating snacks and chatting. At some executions – particularly of famous criminals – everyone, regardless of class, got caught up in the spectacular nature of the event. Spectators at the execution of a notorious criminal such as Cartouche in 1721 may well have numbered in the hundreds of thousands. This enthusiasm for executions constituted a problem for the prevailing theory of deterrence. Out of concern that public executions were enjoyable, not terrifying, officials began to experiment with ways of reducing their spectacular elements. In 1738, windows overlooking the execution site were blocked, the justification being that it was inappropriate to watch executions in this way. However, spectators were so determined, that some sneaked in and pried open the windows.29 Two decades later, Madame Lescombat’s execution for arranging her husband’s murder drew enormous crowds, due to her reputation as one of France’s most beautiful women. No doubt hoping to preserve the deterrent potential of the execution while minimising the potential for voyeuristic curiosity, the authorities covered Lescombat’s face with a veil. This novel idea did not turn out very well, however. Spectators, catching sight of someone in a veil being led to the scaffold, began to scream that the person being executed was a substitute, not Madame Lescombat.30 In many respects such suspicion was perfectly logical as the entire purpose of spectacular justice supposed to be that people could actually see justice being done. The inherent contradictions between the theory of exemplary deterrence and a rising

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voyeuristic spectacularity were simply too complex and too dimly perceived by all concerned, so it was easier to conclude that the veiled woman was not Lescombat. This crisis in the theory and practice of punishment was ultimately resolved by the humanist penal reformers of the second half of the eighteenth century. While clinging to the concept of deterrence as the sole purpose of punishment, they postulated that cruel bodily punishments might have the opposite effect of inciting a taste for violence. From the late eighteenth century onwards, punishments became increasingly unspectacular. Although the novelty of the guillotine initially attracted thousands of spectators, one of its most important functions was to reduce the timespan of the moment of actual, physical punishment. In the aftermath of the Terror, guillotines throughout France were moved from town centres to their outskirts. Authorities did everything they could to minimise the spectacle short of formally excluding the public; thus, executions were performed with little advance notice, and often at dawn, as the dim light impeded visibility. Police cordons kept spectators at a distance, and after 1870 scaffolds were banned, with executions performed at ground level. Finally, in 1939, after illicit photographs and a film of Eugen Weidman’s execution were splashed across tabloids worldwide, the French government ended public executions.31 Thereafter, until the outright ban on capital punishment in 1981, all French executions occurred behind closed doors, witnessed only by government officials, judges, police, defence attorneys, a doctor and a chaplain. The long reign of spectacular justice had come to an end.

Conclusion In conclusion, the theory, the practice and the perception of punishment all evolved along separate trajectories. The transformation of punishment theory from a system of compensation for past damages to one primarily concerned with deterrence of future crimes created a logic that was foundational in modern states. Practice evolved through a hybrid of compensation, public penance and ritual expulsion to a modern disappearance of ritual practices as executions were reduced to their essential physical function of ridding communities of certain dangerous or undesirable individuals. Finally, the way people watched executions evolved from participation in a ritual of atonement and healing, through an almost voyeuristic appreciation of executions as spectacle, towards the modern era of invisible punishment, where non-capital and capital punishments alike are performed behind closed doors. In theory, the public, or at least would-be criminals, are somehow still meant to derive a lesson from punishment, without actually having seen anything at all. In practice, spectacular didactic punishment has been replaced by a form of social surgery in which problematic individuals are removed from society with as few witnesses as possible.

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Notes 1 Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan, New York: Vintage, 1979, p.49. 2 Ibid., p.24. 3 Ibid., pp.44–5. 4 David Armstrong, ‘Bodies of Knowledge: Foucault and the Problem of Human Anatomy’, in Andrew Blakie, M. Hepworth, M. Holmes, A. Howson and D. Inglis (eds), The Body: Critical Concepts in Sociology, 5 vols, London: Routledge, 2004, vol. 3, p.112. For similar readings, see Andrew Cutrofello, Continental Philosophy: A Contemporary Introduction, London: Routledge, 2005, p.380; Jonathan Joseph, Social Theory: An Introduction, Edinburgh: Edinburgh University Press, 2004, pp.188–9. On the fixing of Foucault’s characterisation of punishments in theoretical imaginations, see David Garland, ‘Death, Denial, Discourse: On the Forms and Functions of American Capital Punishment’, in David Downes, Paul Rock, Christine Chinkin and Conor Gearty (eds), Crime, Social Control and Human Rights: From Moral Panics to States of Denial: Essays in Honour of Stanley Cohen, Cullompton: Willan, 2007, p.141. 5 Michel Bée, ‘La société traditionnelle et la mort’, XVIIe Siècle, 106–107, 1975, 81–111; ‘Le spectacle de l’exécution en France d’Ancien Régime’, Annales E.S.C 38(4), 1983, 843–62. 6 Esther Cohen, The Crossroads of Justice: Law and Culture in Late Medieval France, Leiden: Brill, 1993. 7 Thomas Laqueur, ‘Crowds, Carnival, and the State in English Executions, 1604– 1868’, in A.L. Beier, David Cannadine and James Rosenheim (eds), The First Modern Society, Essays in English History in Honour of Lawrence Stone, Cambridge: Cambridge University Press, 1989, pp.305–55. Also V.A.C. Gatrell, The Hanging Tree: Execution and the English People, 1770–1868, Oxford: Oxford University Press, 1994, pp.90–6; Randall McGowen, ‘Civilising Punishment: The End of Public Execution in England’, Journal of British Studies, 33(3), 1994, 257–82, p.274. 8 See Paul Friedland, Seeing Justice Done: The Age of Spectacular Capital Punishment in France, Oxford: Oxford University Press, 2012. 9 Katherine Fischer Drew (ed. and trans.), ‘Pactus legis Salicae’, The Laws of the Salian Franks, Philadelphia, PA: University of Pennsylvania Press, 1991, sections II–VIII. 10 See P.S. Barnwell, ‘Emperors, Jurists and Kings: Law and Custom in the Late Roman and Early Medieval West’, Past and Present, 168, 2000, 6–29. 11 Ibid. 12 O. Watkins, History of Penance, 2 vols, London: Longmans, 1920, vol. 1, pp.424; 482–3; vol. 2: pp.552–3. On continuation of the practice, see Mary Mansfield, The Humiliation of Sinners: Public Penance in Thirteenth-century France, Ithaca, NY: Cornell University Press, 1995. 13 Cyrille Vogel, Le pécheur et la pénitence au moyen âge, Paris: Éditions du Cerf, 1969, pp.15–28. 14 Patrick Geary, ‘Extra-Judicial Means of Conflict Resolution’, La Giustizia nell’alto medioevo (secoli V–VIII), Spoleto: Centro italiano, 1995, 569–605. 15 The timing of the mysterious ‘discovery’ of Justinian’s texts was not entirely accidental. The papacy was beginning to take on sovereign state characteristics and had ambitions to assert authority over the people and property of the European Roman Catholic Church. The papacy needed not simply a code of laws, but a whole administrative system of justice. Justinian’s compilation provided an underlying sense of the meaning of justice and the very principles that lay at the foundation of law, lacking to all recent codes of law. J. Berman, Law and Revolution: The

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16 17 18

19 20 21

22 23

24 25 26

27 28 29 30 31

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Formation of the Western Legal Tradition, Cambridge, MA: Harvard University Press, 1983. Alan Watson (ed.), The Digest of Justinian, Philadelphia, PA: University of Pennsylvania Press, 1985, Bk. 48, 8, 1, 3. C.9.27.1, quoted in Jean-Marie Carbasse, Histoire du droit pénal et de la justice criminelle, Paris: Presses Universitaires de France, 2000, pp.65–6. Ken Pennington, ‘Innocent III and the Ius commune’, in Richard Helmholtz, Paul Mikat, Jörg Müller and Michael Stolleis (eds), Grundlagen des Rechts: Festschrift für Peter Landau zum 65 Geburstag, Paderborn: Verlag Ferdinand Schöningh, 2000, pp.349–366; Richard M. Fraher, ‘The Theoretical Justification for the New Criminal Law of the High Middle Ages: Rei publicae interest, ne crimina remaneant impunita’, Michigan Law Review, 1984, 577–95. For the evolution of spectacular justice, see Friedland, Seeing Justice Done, Ch. 2. Also across much of northern and central Europe. On executioners, see Jacques Delarue, Le métier de bourreau: du Moyen Age à aujourd’hui, Paris: Fayard, 1979; Kathy Stuart, Defiled Trades and Social Outcasts: Honour and Ritual Pollution in Early Modern Germany, Cambridge: Cambridge University Press, 1996. On the historical relationship between public penance and the amende honourable, see Jean-Marie Moeglin, ‘Pénitence publique et amende honourable au Moyen Age’, Revue historique, 604, 1997, 225–69. For the various interconnections between rituals of criminal justice and Christ’s Passion, particularly the relationship between medieval Crucifixion paintings and contemporary criminal justice rituals, see Mitchell B. Merback, The Thief, the Cross, and the Wheel, Chicago, IL: University of Chicago Press, 1999. Recueil de journaux caennais, cited, Michel Bée, ‘La société traditionnelle et la mort’, XVIIe Siècle, 106–107, 1975, p.98. Louis Guibert, ‘Les confréries de pénitents en France et notamment dans le diocèse de Limoges’, in Bulletin de la Société archéologique et historique du Limousin, 27, 1879, 27, 5–193; especially pp.34, 40, 126–34. Paul Friedland, ‘Beyond Deterrence: Cadavers, Effigies, Animals, and the Logic of Executions in Premodern France’, Historical Reflections/Réflexions historiques, 29(2), 2003, 295–317. The classic text remains E.P. Evans, The Criminal Prosecution and Capital Punishment of Animals, London: William Heinemann, 1906. Quoted, David Nicholls, ‘The Theatre of Martyrdom in the French Reformation’, Past and Present, 121, 1988, 49–73, p.69. Félix et Thomas Platter à Montpellier, 1552–1559 – 1595–1599. Notes de voyage de deux étudiants Balois, publiées d’après les manuscrits originaux appartenant à la bibliothèque de l’université de Bale, Montpellier: Camille Coulet, 1892, p.107. Archives nationales AD III 8 contains Gueullette’s 1738 account of his struggles to find a window from which to watch an execution. Ibid. A German serial killer.

8

Hurt, harm and humiliation Community responses to deviant behaviour in early modern Scotland Anne-Marie Kilday

Introduction Since early history, shaming mechanisms have been systematically used by legal authorities to penalise offenders and to deter others from similar criminal activity. Well-catalogued examples include the march to the gallows, the dying speech, the branding of thieves, the use of the pillory, and the whipping of convicts at appointed stations through a particular community.1 Clearly, aspects of humiliation have always constituted the essence of punishment and the function of shame as a tool to control personal conduct certainly pervaded the minds of the early modern general populace. Regularly they put into practice a variety of forms of ‘street theatre’, designed to humiliate the offender concerned, to dissuade others from behaving badly and, depending on the offence committed, either to expel the perpetrator from the community or to reintegrate them into the fold. This type of communal shaming punishment worked alongside more formal judicial responses to bad behaviour in an attempt to uphold the moral integrity of the populace. Historians of Europe and North America from the early modern period to the twentieth century have already documented the relationship between forms of deviant behaviour and the community-based reactions that were consequences of individuals disregarding widely accepted social standards.2 Instances of communal shaming, more commonly recognised as ‘charivari’, ‘characteristically involved a noisy, mocking demonstration usually occasioned by some anomalous social situation or infraction of community norms’.3 While these shaming practices occur, both across time and between cultures, it is important to recognise, that the experience of ‘charivari’ was not uniform nor readily comparable across contexts. In sixteenth-century France, for example, Nathalie Zemon Davis demonstrated that episodes of ‘charivari’ took place on very specific occasions, most commonly in relation to a proposed second marriage when there was a significant age discrepancy between the husband and his prospective bride. The shaming rituals that ensued were led by the youth of the community, but the proceedings appear to have been relatively jovial and carnivalesque in atmosphere, rather than rebellious or injurious.4 In a similar vein, studies of

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communal shaming practices in North America have shown that ‘charivari’ were occasions for gaiety, celebration and fun, rather than episodes of unqualified humiliation.5 A different picture emerges in Russia, however, not unlike that of the United Kingdom in terms of the degrading treatment and stigmatisation that victims received, as well as the extensive nature of community involvement. However, thieves were the main targets of Russian ‘charivari’, rather than moral transgressors, and this is where the Russian and British experiences are at odds.6

British historiographical context In the British context, thus far, most of the research carried out on community reactions to bad behaviour has been confined to the English context during the early modern period. Historians such as Martin Ingram and Edward Thompson in particular have contributed much to our understanding of these humiliating episodes, although due to poor record survival, it is difficult to determine just how common these instances actually were.7 English historians prefer to use the term ‘rough music’ rather than ‘charivari’ when describing the various forms of communal humiliation practised there since the sixteenth century. ‘Rough music’ involved a brutal cacophony of noise, regularly accompanied by drama or ritual, which directed blatant mockery and opprobrium towards individuals who had transgressed particular community conventions. The forms of ‘rough music’ varied in form according to the particular circumstances of each individual case, but they were regularly ‘a highly ritualised expression of hostility’8 and could be both physically injurious and emotionally traumatic. As well as the din or ‘music’, members of the community met together to clash pots and pans in the proximity of the offender’s residence to draw attention to the unfolding scene. The event might involve ‘the riding of a victim (or proxy) upon a pole or donkey; masking and dancing; elaborate recitatives; rough mime or street drama; the parading and burning of effigies; or indeed, combinations of all of these activities’.9 Occasionally, in early modern England ‘rough music’ was prompted by unpopular officials or industrial-related grievances.10 More commonly, however, it occurred due to domestic complaints of one type or another. These could include scolding, wife-beating, cuckoldry and, generally, offences committed against a patriarchal notion of marital roles. In addition, impropriety of a sexual nature (such as sodomy or fornication) was also targeted, while adultery, in particular, was one offence that was regularly censured in early modern England.11 Throughout early modern society, the maintenance of patriarchal values was a key concern. It was widely believed that conformity to patriarchal authority within the family resulted in a corresponding obedience to the state. It followed on from this that any threat to the patriarchal system threatened the entire social and political order and could not be tolerated.12 In the main, from the 1560s onwards, this threat came from ‘unruly’, independent women, evidenced by

126 Anne-Marie Kilday a significant increase in court business targeted against such women in England. Women who stepped outside the boundaries of ‘normal’, ‘acceptable’, ‘feminine’ behaviour (for instance, by attempting to rule their masters or husbands) had to be reproached and reminded of their place both within their own domestic arena and wider society. Disdain for extra-marital impropriety and sexual misadventure has an even longer history than the concerns with patriarchal authority just outlined. Shaming punishment functioned in England at this time as a means by which a scandal could be publicised and ‘communal harmony’ could be maintained by reminding the populace of their moral duty.13 Although in the main sexual misdemeanours were usually not deemed ‘criminal’ and appeared rarely before the judiciary, ecclesiastical discipline tried to curb this kind of behaviour, which it regarded as wicked, dangerous and a scourge on society. This alluded to the broken relationships and illegitimate pregnancies that were considered a common consequence of such behaviour.14 Initially, it did this within its own jurisdiction, but after the decline of the Church courts from the late seventeenth century onwards, religious authority was best represented by the Church’s involvement in community affairs.15 Thus, episodes of ‘unofficial’ communal humiliation were particularly good opportunities to demonstrate the resilient power of the Church at a local level. The English historiography of communal shaming punishments has identified several key characteristics of this type of popular custom. First, although the episodes were of a rebellious nature, they were not disorganised in terms of how they were executed. This is because, in order for ‘rough music’ to be effective, the target had to be a recognised member of the community and the imposed punishment had to be based on a deliberate decision by the majority of that community.16 Secondly, class hierarchies did not wholly restrict ‘rough music’ to plebeian culture in England during the early modern period, as there are examples of landowners and noblemen being abused.17 However, in the main, this kind of degradation was committed between ‘common folk’. Finally, scholarship has revealed that the disgraced victims of ‘rough music’ in England were more commonly male than female, and that when women were targeted, they were usually shamed in effigy, rather than in person.18

The Scottish experience: gendered shaming No detailed work has yet been carried out on the equivalent Scottish experience of this type of communal opprobrium. This is surprising, as recent research has shown Scotland to have a relatively unique context for both criminal enterprise and for reactions to its perpetration, which stems from the relationship between legal and Church authority.19 For instance, scholarship has shown Scottish women’s criminality to have been more significant compared to that uncovered in other European countries during the early modern period. Scottish women did not necessarily rely on male criminal

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accomplices, as seems to have been the case elsewhere, but rather they were autonomous participants, even in instances where violence was deployed.20 In part, the high proportion of women in Scottish indictment records reflected the authorities’ preoccupation with female deviancy. During the early modern period, Scotland was a staunchly Calvinist society. Any individual who stepped outside the boundaries of acceptable behaviour could expect a stern reaction from both the clerical and judicial authorities. This was particularly true in the case of criminal women, however, as not only had they behaved badly as individuals, but they had also betrayed the notional qualities of their sex. In response to this, the Scottish authorities made frequent examples of deviant women through public trials, high conviction rates and an elaborate punishment regime. In practical terms, this meant that a system of close and generally efficient surveillance operated in early modern Scotland which actively involved senior members of the Scottish Church. By working in tandem, Church and judiciary established a particularly effective investigative framework whereby suspect individuals were detected, arrested and interrogated prior to trial.21 Quite whether this distinctive context extended its reach to affect public notions of propriety and attempts to maintain communal and ideological harmony will be the focus of the remainder of this chapter. For instance, did the Scots engage in public shaming rituals in the same manner or with the same frequency as their English counterparts during the early modern period? How did the influence of the Scottish Church affect the form, duration and outcome of instances of public shaming? Was any judicial reaction to community-based opprobrium ever evident? Which crimes and which criminals did the Scottish populace single out for ‘popular’ condemnation and why? In particular, acknowledging the violent nature of Scottish female criminals, to what extent were shaming rituals gendered north of the Tweed? We must ask how did communities respond to women who had ‘behaved badly’ and had thus betrayed the notional qualities of their sex? This chapter will attempt to address these questions and suggest additional avenues for further and deeper study. So how does the English experience of ‘rough music’ outlined above compare with that of its northern neighbour? Evidence can be traced in a variety of different types of Scottish source material from court records, Church documents, local correspondence, poems, broadside ballads and newspapers. However, coverage is patchy and in places incomplete. Nevertheless, an analysis of the material that does exist indicates that the study of Scottish incidents of ‘rough music’ suggest some substantive differences with the English and wider European experience to date. Between 1680 and 1740, sixtyeight cases of ‘rough music’ in the lowlands of Scotland can be identified.22 Precisely fifty-two of these were targeted against women and the remainder against men. Already, then, a greater propensity can be identified in the Scottish cases geared towards the targeted humiliation of women than the judicial context outlined above might have led us to expect.

128 Anne-Marie Kilday Two main forms of ‘rough music’ operated in early modern Scotland. The first of these was called the ‘branks’ (known in England as the ‘scold’s bridle’ or ‘the chastity belt for the tongue’).23 This mechanism for humiliation is not normally considered by historians to be a form of ‘rough music’ in England as it was considered a tool largely confined to the privacy of the marital relationship.24 However, the community-endorsed, ritualised nature of this punishment in Scotland might encourage a revisiting of historical categorisations of how ‘rough music’ could be expressed. The punishment was said to have military origins and its usage can be traced back to 1574, when it was employed as a torture device to procure confessions from alleged Scottish witches.25 From the 1600s onwards, however, the punishment was applied more generally, and rather than being confined to insolent scolds (as was the case in England), it was used in Scotland to curb various forms of female rebelliousness – typically, instances where traditional patriarchal roles had been abused. In England, ‘scolds’ bridles’ were usually applied by victimised husbands, but in Scotland, the procedure was more public and communally orchestrated, with the women of the neighbourhood regularly working closely with Church officials to ensure its proper administration and was ultimately effectiveness. All of the evidence uncovered for the use of the branks in Scotland testifies to it being a gendered punishment exclusively reserved for wayward or ‘deviant’ women. After 1570, in fact, there are no surviving recorded instances of men receiving this humiliating punishment in a Scottish context.26 The nature and range of offences for which women could be ‘branked’ are evident from the following series of examples.27 Agnes Hogg and Helen Cuthbert were made to wear the branks in Glasgow in 1579 after they repeatedly defamed the good name and character of the local minister, James Gray, accusing him of lusting after young girls by lying on the floor to look up their skirts during the dancing lessons he administered.28 Elizabeth Shaw was similarly branked in Edinburgh in the early seventeenth century on account of her having disciplined her daughter Janet too severely with a horse whip after she had accidentally broken some crockery.29 In 1698 Anne Gilbert was branked for attacking her husband with a meat cleaver after he rebuked her cooking one evening.30 In the Borders town of Jedburgh, in 1706, Isobel Nicol was similarly punished for attacking her father and brother with a smoothing iron and a broken bottle when they forbade her to attend a local dance with her sweetheart.31 So how exactly were these women punished for their outlandish and unfeminine behaviour? Well, usually at the instigation of Church officials, several women from the parish would congregate outside the residence of the culprit concerned. They would raise a din by singing loudly or by crashing pots and pans together, so as to alert the rest of the population to the scene. The women then entered the culprit’s residence, dragged her outside by whatever force was deemed necessary, fitted the ‘branks’ on to her, and then paraded her about the community. The humiliation lasted until the culprit swore to behave more appropriately in the eyes of God, and if this was not

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forthcoming, the whole debacle could be repeated on successive days until acquiescence was achieved.32 A subsequent branking was rarely necessary, however; as E.J. Guthrie describes, ‘the discipline never failed to effect a complete reformation.’33 Indeed, to date there have been no recidivist branking episodes uncovered in pre-modern Scotland. Most probably, the combination of communal and ecclesiastical humiliation served to completely subjugate the ‘offender’ and render her contrite and compliant thereafter. From the evidence gathered here, it seems the branks functioned effectively as a shaming tool for unruly Scottish women. In Scotland the actual device used for branking the victim was arguably less humane than that used in England. It is unclear whether these devices already existed in different regions during the pre-modern period or whether they were constructed to order for each specific shaming episode. The ‘branks’ was a commonly skeletal iron helmet that was secured in place at the back of the head by a padlock. There was an iron loop at the front for affixing a chain by which the offender could be led around. Fixed to the inner portion of the helmet was a piece of metal, which (when the instrument was properly fitted) pressed the tongue down and effectively ‘branked’, or bridled it. The longer the length of the mouthpiece, the worse the punishment, as it would cause the offender to retch, especially if they struggled. Moreover, despite regional variations in the basic structure and ornamentation of the helmet, all of the Scottish branks still in existence have elevated rasps or spurs attached to the mouthpiece that caused serious lacerations to the mouth when the offender was in motion. If this were improperly fitted, the mouthpiece could move about, smashing teeth and macerating gums with every pull of the chain-leash or every lurch.34 Of course, all of this had to be endured in the public glare, and the psychological scars of this shame punishment must have persisted long after the physical scars had healed over. Ingram describes the branks as having ‘a very brief history’ in England and argues that during the early modern period, it was rarely put into practice.35 The device does not seem to have been used in Wales or Ireland during that time and, according to Brushfield, its use had started to decline in England by the latter 1700s.36 Branking in Scotland was also relatively rare, but patchy record survival, particularly in relation to burgh records, may well have suppressed the true number of recorded branking incidents. In preparation for this chapter, the author uncovered some sixty-four episodes of branking in Scotland from 1600 to 1900, using material such as sentencing records and victims’ bills of complaint at the conclusion of their punishment.37 However, John Harrison’s detailed analysis of the well-preserved Stirling Burgh Records, 1600–1722, revealed more than one hundred branking-related punishments directly sentenced in that area alone.38 If record survival allows, a more detailed analysis of local sources might reveal that the use of the branks was far more extensive than current thinking suggests. Certainly, the use of the branks in Scotland seems to have had a much greater longevity than in England. From the early seventeenth century, English

130 Anne-Marie Kilday shaming rituals favoured the cucking-stool or ducking-stool for scolding based offences.39 Yet this transformation seems not to have occurred in Scotland. Numerous eighteenth-century examples of branking exist north of the border, as does a case from as late as 1858 against Katherine Crawford, a husbandbeater from Paisley (near Glasgow).40 This suggests the Scots retained the use of the branks largely because the alternative, ducking, was widely regarded as an ineffective shaming tool. Ingram has argued that ducking rituals regularly backfired as the offender rebelled against their requisite punishment, giving orations from the stool about the absurdity and iniquity of their circumstance.41 It is unlikely, given the regular involvement of the Scottish Church in these shaming episodes, that the authorities would permit anything other than total disgrace and humiliation at these communal shaming ceremonies. In contrast, branking appeared as a trusted strategy, one they had confidence in because its power had been observed. Branking was thus a key procedure for the shaming of women in early modern Scotland, amounting to a humiliating and brutal gendered punishment not solely restricted to scolding offences, as in England. Nor was it largely private in nature or only officially sanctioned, as Harrison has suggested.42 The spectacle of branking was a community experience, regularly instigated by Church officials and (interestingly) often played out by women against women. As Christina Larner has pointed out, ‘a patriarchal social structure divides women. Largely dependent for their livelihood on the goodwill of men, most women will not only conform, but will also attack women who by their nonconformity threaten the security of the conformist women’.43 Perhaps the need to retain respectability and security helps explain why Scottish women were often the key players in the use of branks to shame their erstwhile sisters. The reservation of branking as a specific punishment for female ‘offenders’ is not entirely clear. It is likely that Scottish society believed that shaming punishments, generally, were more effective on women since respectability realistically generated their right to status and esteem within the community. Certainly, this notion is confirmed when comparison is made with the treatment of Scottish men for similar misdemeanours. On the whole, for ‘offences’ such as fornication, minor assault and defamation, men were ordered to be exposed on the ‘govis’ (pillory) or the ecclesiastical ‘stool of repentance’ for a period of time with a list of their offences pinned to their person.44 Although protracted and undoubtedly embarrassing, this type of punishment seems relatively pusillanimous when compared with the brutalising punishment of the branks, so often accompanied by a ritual enactment culminating in a degradation of the female form.45 The need to make an example of unruly women within the community was also mirrored in the courtroom. As already discussed, the Scottish judiciary seemed eager to inflict exemplary punishments on women accused of ‘unlawful’ behaviour during the pre-modern period.46 They could not be allowed to betray the notional ‘feminine’ qualities of their sex, nor could they be permitted to offer encouragement to other like-minded viragoes. There was

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a perceived need within multiple layers of authority in Scottish society to subject unruly women to the accepted values of patriarchy through shame and opprobrium. It was assumed that episodes of public humiliation would not only curb female wrong-doing per se, but it would also remind other women of their duties and obligations.

The broader experience of shaming The other key form of ‘rough music’ operating in Scotland was a version of the familiar English skimmington ride. This particular shame punishment is regarded by historians as the most common example of ‘rough music’ or ‘charivari’ occurring in the United Kingdom during the pre-modern period,47 although determining its frequency is problematic.48 Although shame was central to all skimmington rides, there were significant regional variations in the implementation of the punishment. Irrespective of location, ‘rough music’ preceded this particular type of shaming event, where individuals from the local community gathered outside the residence of the intended target to make a lot of noise, thus attracting the neighbouring populace to the scene. In southern England, a skimmington ride then involved the target being taken and seated (usually backwards) on a donkey, in order to be led around the locality to the jeers and heckling of the community. Sometimes the target would be punished in person; sometimes an effigy would be used.49 The use of a donkey and the notion of riding backwards as a form of shame punishment constituted attempts permanently to stigmatise participants.50 Most commonly, the English skimmington rides, in shaming the individuals involved sought not only to publicise the scandalous nature of their situation, but also were making a blatant attempt to evict the culprits from the community permanently.51 The Welsh form of the skimmington ride was known as Ceffyl Pren or ‘wooden horse’. Here, the process was relatively similar to its English equivalent aside from the fact that the individuals concerned were carried around the neighbourhood on a piece of wooden apparatus, instead of riding backwards on an animal. The apparatus concerned was often a ladder that had been elaborately decorated by the community to look like a horse or donkey.52 In the northern parts of England and in Scotland, the version of the skimmington ride in operation was called riding the ‘stang’. A stang was a long, unshaven wooden pole, usually a tree trunk or equivalent.53 This version of the skimmington ride combined several aspects of both the southern and Welsh versions of this type of shaming punishment. The process leading up to this punishment was relatively similar, save for the actual ride itself. Instead of a donkey or ladder being used, the individuals concerned had their hands tied behind their back, they were straddled over the stang and their bare legs were tied together below the knees. The stang was then lifted high into the air and swiftly lowered, causing the victim to cry out in pain each time he or she rebounded off the stang. As the tree trunk used

132 Anne-Marie Kilday was rough and abrasive, the individual’s thighs, legs and genital area were regularly ‘fearfully torn and scratched’ and, by the end of the riding, it was not unusual for individuals to be rendered unconscious by the suffering they had endured.54 When compared to the other versions of the skimmington ride, riding the stang was particularly injurious and humiliating. The psychological trauma and physical suffering caused by this treatment must have been substantial for the individuals involved. Additionally, the stigma of enduring this shame within the public arena was almost certainly overwhelming and inescapable. Generally, this kind of communal punishment could be imposed for a range of reasons but, as with branking, typically resulted from a perceived abuse of the moral or patriarchal order, usually adulterous behaviour or repeated acts of domestic abuse.55 Its obvious function was to publicise a local scandal to the wider community. The specific manner in which the skimmington ride occurred depended on the offence that had been committed. Episodes could escalate or indeed recede (regarding the hurt inflicted and the humiliation received) entirely at the community’s discretion.56 Examples of such ‘rough music’ can be found as late as the first third of twentieth century in England, although few examples survive for Scotland or Wales and instances of its use become rare and unusual after 1900.57 Despite the relative lack of evidence for any regularity in use of skimmington-type punishments in the north after 1850, there is still little evidence to support Violet Alford’s contention that throughout history, the practice was exceedingly rare in northern areas compared to southern ones. A study of the Scottish records alone reveals numerous examples of riding the stang throughout the pre-modern period, and other studies have pointed to copious northern English examples.58

Reflections on communal shaming punishments There are some important and interesting conclusions to be drawn from the various types of communal shaming punishment in pre-modern Britain. First, the practice of customary punishment in England and Wales during this period differs from the Scottish experience since in Scotland, both branking and riding the stang were predominantly instigated by Church officials.59 This was rarely the case in the known English or Welsh examples, suggesting that even by the seventeenth century, the dominance of the Church was less pronounced in community affairs south of the Tweed. Secondly, although in England men and women received this punishment – sometimes simultaneously if an adulterous couple were targeted, in Scotland and indeed in Wales, only women were regularly the victims of this form of opprobrium. The English examples often replaced potential female targets with an effigy or a substitute male participant dressed in her likeness.60 In English skimmington rides where women were targeted, the shame of the event, even by association, was deemed sufficient punishment. In Scotland, however, the humiliation ritual was seemingly considered incomplete or ineffective if the

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offender did not directly participate. Crucially, the gender of the offender could not be used in mitigation. Once again, then, the evidence indicates an overt imperative to punish unruly women in particular areas of pre-modern Britain. It is difficult to ascertain why this was the case, but it seems that offences against patriarchy or moral strictures, committed by women, were regarded with much more seriousness in the Celtic fringe than in more central regions. The reasons for this dichotomy are yet to be fully explored or understood, but may reflect the more cohesive nature of social relations in the relatively community-based and unindustrialised areas of Scotland and Wales in the period before 1850. Communities in these areas may well have taken authority into their own hands, persuaded and encouraged by the inconsistent and incomplete reach of centralised justice. Women, regarded as the moral guardians for future generations, were arguably considered a wholly appropriate target for this community-based regulation. The fact that so many of the Scottish and Welsh examples of ‘rough music’ relate to rural rather than urban areas in the pre-modern period supports this hypothesis to a certain extent, although more analysis and investigation than there is room for here is necessary in order to come to firmer conclusions.61 This last point relates to the final comparative conclusion to be drawn that in English skimmington rides actual physical abuse was largely avoided in favour of psychological intimidation or ‘psychic terrorism’.62 However, in Scotland in particular riding the stang could prove both shameful and deleterious. On the whole, the English examples of this type of punishment appear more jovial and humorous in nature, whereas examples from elsewhere exemplify abject hostility and anger.

Scottish case studies A brutal instance of riding the stang occurred in a small town in the southwest of Scotland in the summer of 1721. The local community of Annan had become increasingly incensed by the actions of a woman called Margaret Petrie who was having an affair with not one, but two, of her husband’s brothers. Despite appearing before the local Kirk Session on several occasions to account for her actions, Margaret resolutely made no attempt to hide her illicit activities, as she openly compared the ‘capabilities’ and ‘dimensions’ of each brother when chatting to neighbours and friends. However, when the minister’s wife spotted her running from a barn stark naked, desperately trying to redress herself before her husband returned home for supper, the community (and her long-suffering husband) decided enough was enough. Margaret was dragged by the hair from her home, stripped below the waist and tied to the stang. She was carried through the principal streets of the town over some distance and, as a result, her thighs were ‘dreadfully torn and shredded’ and she suffered ‘an extraordinary flooding’ from her genitals due to the abrasiveness of the tree trunk and the force that the carriers used to bounce her off the stang. Eventually, Margaret was tipped off the stang and thrown into a loch where

134 Anne-Marie Kilday she languished for a time until she was eventually rescued by the local townsfolk in ‘an insensible and bloodied state’.63 This example shows that rather than merely having raucous fun at someone else’s expense, as was often the case in English skimmington rides, Scottish episodes point more towards expressions of communal justice. It appears that, in terms of the nation as a whole, the impact of more central systems of justice was patchy and incomplete in the period before 1850, and thus some neighbourhoods actively retained customary punishment practices for longer. Despite nuances in practice, communal humiliation rituals were more than random acts of boisterous behaviour.64 As in the case above, the participants believed their actions wholly legitimate. They were not only purging the specific offender through the process of humiliation, but they were also reminding their peers and neighbours that they could suffer the same fate if they transgressed codes of appropriate behaviour. Clearly, the Scottish version of this particular form of ‘rough music’ could be brutal, and in this respect riding the stang compares well with the instances of branking already outlined. There are two main contrasts between these types of shaming rituals, in a specifically Scottish context. The first is that men were also made to ride the stang on occasion, whereas branking was solely reserved for women.65 In addition, individuals could be made to ride the stang on multiple occasions in Scotland if the community saw fit, whereas branking was seemingly effective enough to only require a single, one-off application. A tragic case that illustrates both of these characteristics was recounted in the Caledonian Mercury in 1736. George Porteous (from Edmistoun, near Edinburgh) had been made to ride the stang twice by his neighbours for having severely beaten and abused his wife. After the punishment had been meted out for a second time, George was filled with shame and remorse to such an extent that he hanged himself in a nearby orchard. Not only does this episode reflect the imposition of this punishment on Scottish men and the fact that it could be inflicted on multiple occasions, but more poignantly, it reflects the deep sense of opprobrium that could result from communal shaming rituals.66 Another key difference between humiliation rituals across the United Kingdom is that although the range of offences for which individuals could attain communal shame in Scotland was similar to that of elsewhere, the Scots did not appear to adopt the full repertoire of ‘rough music’ evident in England. No instances of effigies being used or burned and no miming, dancing or acting have as yet been uncovered. The Scots seemingly preferred to remove the more theatrical or dramatic elements from episodes of ‘rough music’ and to substitute them for physical abuse and psychological terror. The second key difference to point out is that again, unlike the recorded English and Welsh examples, the Scottish instances of ‘rough music’ were not entirely customary or fully divorced from state-sanctioned authority. Several shaming episodes preceded a court case, as if it was imperative that the community had their say on a given matter, before it was dealt with in the formalised legal sphere. In addition, Scottish Church officials in particular had

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a pivotal role in the regulation of bad behaviour. Intriguingly, ministers were commonly involved in the initial investigations of wrong-doing. They then orchestrated the ‘rough music’ in their parishes and, as if to see the case through to its formal conclusion, regularly testified for the prosecution in court proceedings. This interplay of multiple jurisdictions particularly evident in early modern Scotland is fascinating, as is the relationship between customary practice, the Church and the law, with Church ministers acting as intermediaries between the parties involved. Scottish Churchmen evidently persevered throughout the pre-modern period to retain their authority within and across Scottish society.67 The involvement of the Church in Scottish episodes of ‘rough music’ probably explains why (unlike in England and Wales) there were comparatively few claims for defamation or assault made as a result of community shaming practices. Thus, there may have been a toleration of these traditional mechanisms for ‘control’ among the Scottish populace. However, it is clear that this was not always the case and, as time went on, it seems that these customary practices were increasingly frowned on and curbed by the law. The growing number of complaints and court cases in England and Wales exemplify tensions between communities and the legal establishment. Certainly, it seems that shaming punishments are arguably another example of the slow encroachment upon customary rights that occurred over the course of the pre-modern period. Nonetheless, the pace of this encroachment should neither be overstated nor its triumph assumed to be inevitable. Crucially, then, we need to know more about the relationship between the community, Church and state, and why their reaction to bad behaviour (which at one time was fragmented but complementary) was transformed to be the sole preserve of sovereign authority represented by the secular state. Over time ‘rough music’ was declared ‘rough justice’ and outlawed, to the relief of many unruly Scottish women in particular, but more needs to be known about when this transition took place to say more about its precise causes in these parts of the United Kingdom and beyond.

Conclusion Instances of public shaming have existed throughout history and yet the theory, form and function of these episodes had changed very little over time. Shame was regarded as an essential part of punishment in the pre-modern era, both in relation to officially sanctioned penalties, and in the wider communal arena of ‘popular’ justice. Within the latter sphere, public shaming curbed minor indiscretions, particularly those that challenged the accepted moral code. Through humiliation, offenders would be reformed, potential criminals would be deterred and communities reminded of their duty to behave properly. Within this context and, as the above examples have shown, shame was not merely a one-dimensional tool influencing the actions and behaviour of individuals as traditional definitions suggest. The audience for shaming rituals

136 Anne-Marie Kilday were also an essential element of the process, and their participation in such action indicated a craving to see justice in action. When organised by a community, shaming rituals articulated grievances and enabled groups to regain or claim control over situations requiring ‘public’ intervention or expression. In these episodes, shame was not an inflexible entity, but rather as a dynamic interaction that held enduring significance for all of those involved. The examples and case studies presented in this chapter clearly demonstrate just how humiliating and tortuous communal punishment could be. The employment of ‘rough music’ as a precursor to a prescribed shaming ritual was fairly universal, although with marked regional variations. The wellanalysed English versions of unofficial community shame-based punishments appear to have been rather mocking and jovial in tone and practice. By way of contrast, the hitherto neglected Scottish versions were seemingly implemented as ‘real’ punishments containing a calculated blend of prolonged shame and physical harm. Although there was an obvious ritualistic side to branking or riding the stang, incidents were taken far more seriously by the participants concerned when compared to their English equivalents. The frequency and effectiveness of these types of episodes requires more detailed work on local source material before any more definitive conclusions are made. However, it can be suggested, nonetheless, that the ferocity of the punishments meted out in Scotland, as well as the inevitable and lasting stigma involved, probably resulted in repeat performances being unnecessary. Two further significant points of interest are illuminated by the preceding analysis. The first is that unruly, sexually transgressive or boisterous women were particular targets for communal shaming punishments in Scotland. Such women required exemplary punishment, as it was believed that through their ‘deviant’ actions they had not only shamed themselves, their families and their local neighbourhood, but they had also shamed their gender too by betraying the notional qualities of their sex. All of these factors, coupled with the fierce nature of the pre-modern shaming episodes in Scotland, served to enhance the perception that these disruptive women would make ‘good candidates’ for specific types of opprobrious punishment. From the community’s point of view, the subjugation of these women brought peace to the neighbourhood, facilitating a restoration of the established order. Moreover, miscreants would ultimately benefit from the perceived restorative qualities of public shaming; these invited reformation of character, private penitence, public absolution, and finally reintegration into community life. Another interesting factor identified above is that particularly in the Scottish context, communal shaming punishments could function and work alongside other more ‘formal’ or ‘official’ practices such as church appearances and legal indictments. Rather than operating as a separate, autonomous entity, the community played its part within a complex web of societal layers concerned with the regulation of the bad behaviour, with the authority of the church dominating proceedings. Episodes of communal shaming are one instance

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during the pre-modern period where the Scottish Church could retain its influence and demonstrate its power at a local level, despite the fact that more centrally, the strength of its authority had been undermined and diminished. Despite abundant evidence that testifies to the longevity of public shaming, there are nonetheless, various indications that point to the growing encroachment of the state upon popular practices of this sort. Over time, instances of communal public shaming came to be increasingly regarded as inappropriate and were thought to be uncivilised and overly riotous, rather than reconciliatory and reformative. This wider transformation in attitude towards the use of shame marks something of a social and cultural shift. However, this change was complex and can by no means be equated with either civilisation or modernisation. Important aspects of that change and their history need to be investigated and explored by future research.

Notes 1 For further discussion of officially sanctioned punishments involving the use of shame in the United Kingdom since the early modern period, see D. Nash and A.-M. Kilday, Cultures of Shame: Exploring Crime and Morality in Britain 1600–1900, Basingstoke: Palgrave, 2010; V.A.C. Gatrell, The Hanging Tree: Execution and the English People, 1770–1868, Oxford: Oxford University Press, 1994; D. Garland, Punishment and Welfare: A History of Penal Strategies, Aldershot: Gower, 1985; R. McGowen, ‘The Body and Punishment in Eighteenth Century England’, Journal of Modern History 59, 1987, 651–79; G. Ryley Scott, Flagellation: A History of Corporal Punishment in its Historical, Anthropological and Sociological Aspects, London: Tallis, 1968. 2 For further discussion of the nature and extent of communal shaming punishments, see E.P. Thompson, Customs in Common, Harmondsworth: Penguin, 1991, pp.467–538. 3 M. Ingram, ‘Ridings, Rough Music and the “Reform of Popular Culture” in Early Modern England’, Past and Present, 105(1), 1984, 79–113; pp.105, 81. 4 See N. Zemon Davis, ‘The Reasons of Misrule: Youth Groups and Charivaris in Sixteenth-Century France’, Past and Present, 50, 1971, 41–75. 5 For further discussion, see L.T. Johnson, ‘Charivari/Shivaree: A European Folk Ritual on American Plains’, Journal of Interdisciplinary History, 20(3), 1990, 371–87; M. McKnight, ‘Charivaris, Cowbellions and Sheet Iron Bands: Nineteenth-Century Rough Music in New Orleans’, American Music, 23(4), 2005, 407–25. 6 See S.P. Frank, ‘Popular Justice and Culture among the Russian Peasantry, 1870–1900’, Russian Review, 46(3), 1997, 239–65. 7 For further discussion, see Thompson, Customs in Common, pp.467–538; E.P. Thompson, ‘Rough Music Reconsidered’, Folklore, 102(1), 1992, 3–26; Ingram, ‘Ridings, Rough Music’; M. Ingram, ‘“Scolding Women Cucked or Washed”: A Crisis in Gender Relations in Early Modern England’, in J. Kermode and G. Walker (eds), Women, Crime and the Courts in Early Modern England, Chapel Hill, NC: University of North Carolina Press, 1995, 48–80. 8 Thompson, ‘Rough Music Reconsidered’, p.3. 9 Thompson, Customs in Common, p.469. 10 See, for instance, ibid., especially the examples in notes 4–8 on p.517 and other commentary on pp.516–30; M. Gorsky, ‘James Tuckfield’s “Ride”: Combination and Social Drama in Early Nineteenth Century Bristol’, Social History, 19(3), 1994, 319–38.

138 Anne-Marie Kilday 11 For further discussion of the types of ‘offences’ or ‘bad behaviour’ that could result in instances of ‘rough music’, see Thompson, ‘Rough Music Reconsidered’, especially pp.10–17; Ingram, ‘Ridings, Rough Music’, pp.87–92; V. Alford, ‘Rough Music or Charivari’, Folklore, 70, 1959, 506–7; D. Rollinson, ‘Property, Ideology and Popular Culture in a Gloucestershire Village, 1660–1740’, Past and Present, 93, 1981, 70–97; J.R. Kent, ‘“Folk Justice” and Royal Justice in Early Seventeenth-Century England: A “Charivari” in the Midlands’, Midland History, 8, 1983, 70–85; D.E. Underdown, ‘The Taming of the Scold: The Enforcement of Patriarchal Authority in Early Modern England’, in A. Fletcher and J. Stevenson (eds), Order and Disorder in Early Modern England, Cambridge: Cambridge University Press, 1985, 110–36. 12 For further discussion, see Underdown, ‘Taming of the Scold’, pp.110–21; J.A. Sharpe, ‘Plebeian Marriage in Stuart England: Some Evidence from Popular Literature’, Transactions of the Royal Historical Society, 36, 1986, 69–90; L.E. Boose, ‘Scolding Brides and Bridling Scolds: Taming the Woman’s Unruly Member’, Shakespeare Quarterly, 42(4), 1991, p.195. 13 See Thompson, Customs in Common, p.478; Kent, ‘Folk Justice’, p.74. 14 More serious sexual offences such as sodomy, bestiality or rape would be indicted at a criminal court. On occasion, accusations regarding these offences could also be accompanied by ‘rough music’. See, for instance, Rollinson, ‘Property, Ideology and Popular Culture’, pp.70–97. 15 See Thompson, Customs in Common, p.482. 16 For further discussion, see Thompson, ‘Rough Music Reconsidered’, especially p.10. 17 For further discussion and examples, see Ingram, ‘Ridings, Rough Music’, pp.104–13. 18 Even in instances where English women were the intended target of ‘rough music’, they were regularly displaced in the ritual by male relations, see Underdown, ‘Taming of the Scold’, pp.129, 133. 19 See, for instance, A.-M. Kilday, Women and Violent Crime in Enlightenment Scotland, Rochester: Boydell Press, 2007; A.-M. Kilday, ‘“Monsters of the Vilest Kind”: Infanticidal Women and Attitudes Towards their Criminality in Eighteenth Century Scotland’, Family and Community History, 11(2), 2008, 100–15. 20 See Kilday, Women and Violent Crime; Kilday, ‘Monsters’; A.-M. Kilday, ‘Women and Crime in South-west Scotland: A Study of the Justiciary Court records 1750–1815’, unpublished Ph.D., Strathclyde, 1998; A.-M. Kilday, ‘Angels with Dirty Faces? Violent Women in Early Modern Scotland’, in P. Blanc and R. Hillman (eds), Women, Transgression and Discipline in Early Modern Britain: Social and Literary Explorations, Abingdon: Routledge, 2011. 21 Ibid. all; also A.-M. Kilday, ‘The Barbarous North? Criminality in Early Modern Scotland’, in T.M. Devine and J. Wormald (eds), The Oxford Handbook of Modern Scottish History, Oxford: Oxford University Press, 2011. 22 In this chapter, the lowland region refers to the area of Scotland south of the Forth valley, which includes the central belt of the country as well as the two major cities Glasgow and Edinburgh. 23 See Boose, ‘Scolding Brides’, pp.196–7. 24 For descriptions of the nature of this punishment in England, see W. Andrews, Old Time Punishments, New York: Dorset Press, 1991, pp.42–50; Brushfield, ‘Obsolete Punishments’, pp.42–3. 25 For further discussion on the origins and initial implementation of the branks, see ibid., pp.35–6; J.G. Harrison, ‘Women and the Branks in Stirling c.1600 to 1730’, Scottish Economic and Social History, 18, 1998, 114–31. 26 See, for instance, the evidence presented in this chapter and also Harrison, ‘Women and the Branks’, p.115. In England, the punishment was similarly gendered; see Brushfield, ‘Obsolete Punishments’, p.46.

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27 For further illustration of the wide variety of offences for which women could receive public punishment in Scotland, see Rev. C. Rogers, Social Life in Scotland from Early to Recent Times, 2 vols, Edinburgh: William Paterson, 1884, Vol. II, pp.35–7, 64–5, 230–4, 240–6. 28 Mitchell Library Glasgow: Burgh Records of Glasgow, G 941.435 REN. 29 National Archives of Scotland (NAS), Kirk Session Records (CH): CH2/122/3. 30 NAS, Sheriff Court Records (SC): SC20/5/1. 31 NAS: SC62/10/13 and SC62/10/14. 32 For further discussion of the process, see Boose, ‘Scolding Brides’, pp.205–8; Harrison, ‘Women and the Branks’, pp.116–17; Brushfield, ‘Obsolete Punishments’, especially p.33. 33 E.J. Guthrie, Old Scottish Customs: Local and General, Felinfach: Llanerch Publishers, 1994, p.53. 34 For further discussion of the nature and construction of branks including reference to the more brutal Scottish examples in existence, see D. Wilson, The Archaeology and Prehistoric Annals of Scotland, Edinburgh: Sutherland and Knox, 1851, pp.692–4; D. Wilson, Prehistoric Annals of Scotland, London: Macmillan & Co, 1863, p.520; Brushfield, ‘Obsolete Punishments’, pp.33–48; Boose, ‘Scolding Brides’, pp.205–10; Andrews, Old Time Punishments, pp.38–64. 35 Ingram, ‘Scolding Women’, p.58. 36 See Brushfield, ‘Obsolete Punishments’, pp.36, 46. 37 Although the material collated for this chapter came from an eclectic range of sources, most of the data accrued (some 80 per cent) related to sentencing orders found in Burgh Records and Kirk Session Records. The remainder included Bills of Complaint in the Sheriff Court and the Justiciary Court where victims entered petitions seeking the court’s assurance of their future protection within a community or parish. Sources were analysed through five-year sampling surveys based on locations across the country (where records survived) to provide a national picture of the type of communal shaming punishments in existence. This survey yielded more than 300 pertinent instances of communal shaming. 38 Harrison, ‘Women and the Branks’, p.114. 39 The ducking stool was a chair-based apparatus to which an offender was secured and then dunked (dipped) several times into a local river or cess-pool while a crowd of onlookers jeered. For further discussion, see Brushfield, ‘Obsolete Punishments, Part II’, pp.203–34; Boose, ‘Scolding Brides’, pp.185–9; Andrews, Old Time Punishments, pp.1–37. 40 NAS: JC 26/1037–1041. 41 Ingram, ‘Scolding Women’, pp.61–2. 42 See Harrison, ‘Women and the Branks’, p.118. 43 C. Larner, Witchcraft and Religion: The Politics of Popular Belief, Oxford: Blackwell, 1984, p.86; cited Ingram, ‘Scolding Women’, p.66. 44 This conclusion is based on a survey of the source material listed above in note 33 in relation to misdemeanours committed by Scotsmen, 1600–1900. Far less likely than women to be publicly punished for minor indiscretions, when sentencing did occur, the majority of men (77 per cent) were sentenced to the ‘govis’ or pillory. 45 For further discussion of the gender differences related to shame punishments, see Boose, ‘Scolding Brides’, pp.189–90. 46 See Kilday, Women and Violent Crime, pp.147–57. 47 See, for instance, the discussion in Thompson, Customs in Common, pp.467–72. 48 See especially Underdown, ‘Taming of the Scold’, pp.127, 134. 49 For further description, see Ingram, ‘Ridings, Rough Music’, pp.86, 102; Thompson, Customs in Common, pp.469–77; B.H. Cunnington, ‘A “Skimmington” in 1618’, Folklore, 41(3), 930, 287–90; D.G.C. Allan, ‘The Rising in the West, 1628–1631’, The Economic History Review, 5(1), 1952, 76–85, p.76.

140 Anne-Marie Kilday 50 For further discussion, see Alford, ‘Rough Music’, p.507; R. Mellinkoff, ‘Riding Backwards: Theme of Humiliation and Symbol of Evil’, Viator: Medieval and Renaissance Studies, 4, 1973, 153–76. 51 See, for instance, Kent, ‘Folk Justice’, p.74. 52 See S. Carter Hall, Tenby: Its History, Antiquities, Scenery, Traditions and Customs, Tenby: Mason, 1860, pp.137–41; C. Redwood, History of the Vale of Glamorgan: Scenes and Tales among the Welsh, London: Saunders and Otley, 1839, pp.271–95; R.A.N. Jones, ‘Women, Community and Collective Action: The ‘Ceffyl Pren’ Tradition’, in A.V. John (ed.), Our Mother’s Land: Chapters in Welsh Women’s History, 1830–1939, Cardiff: University of Wales Press, 1991, pp.17–41. 53 For the definition, see W. Grant and D.D. Murison (eds), The Scottish National Dictionary, Edinburgh: The Scottish National Dictionary Association, 1974, Vol. 9, p.2. 54 See Nash and Kilday, Cultures of Shame, pp.37–8; R. de Bruce Trotter, Galloway Gossip or the Southern Albanich: 80 Years Ago, Dumfries: Courier and Herald, 1901, pp.439–43. 55 For further discussion of offences for which skimmington-type punishments could result, see especially Thompson, Customs in Common, pp.493–530. 56 See, for instance, Underdown, ‘Taming of the Scold’, p.131; Thompson, ‘Rough Music Reconsidered’, pp.7–8. 57 See Thompson, Customs in Common, pp.467–538. 58 See Alford, ‘Rough Music’, p.508. There were 136 cases of ‘stang-riding’ uncovered in this present analysis for Scotland in the pre-modern period. For examples of this punishment across England and not just the south, see Thompson, Customs in Common, pp.467–538. 59 This was the case in all of the examples referred to in the preceding note. 60 For discussion of the male domination of English skimmington rides, see Underdown, ‘Taming of the Scold’, pp.129, 133. 61 More than 65 per cent of the ‘stang-riding’ episodes uncovered in relation to Scotland between 1600 and 1900 related to rural areas. For further discussion of the link between Ceffyl Pren and rural areas, see Carter Hall, Tenby, pp.137–41; Redwood, History of the Vale of Glamorgan, pp.271–95. 62 Thompson, Customs in Common, p.530. 63 NAS, Justiciary Court Records (JC): JC26/143–145/2601/2721. 64 For further discussion of the ‘legitimising notion’ associated with skimmington rides and stang-rides, see Thompson, ‘Rough Music Reconsidered’, p.8; Alford, ‘Rough Music’, pp.507, 511; Ingram, ‘Ridings, Rough Music’, p.93. 65 Although many more Scottish men were sentenced to the govis for their indiscretions, nearly a third of the men sentenced to communal shame punishments were ordered to ride the stang. For an example of men’s treatment in this process, see Trotter, Galloway Gossip, pp.439–43. 66 National Library of Scotland: Mf. N. 776, Caledonian Mercury, 29 March 1736. 67 For further discussion, see M. Todd, The Culture of Protestantism in Early Modern Scotland, New Haven, CT: Yale University Press, 2002.

9

Violence against honour Shame and the crime of rape in the age of the Greek Revolution (1821–1828) Katerina Mousadakou

Introduction The Greek Revolution that broke out in 1821 was no bloodless or civilised affair. Lofty ideas, hope and vision along with inevitable violence were its twin driving forces;1 but success (however partial) culminated in a viable nation state. Many different people of different identities and allegiances risked much by involving themselves in the war. The ‘speechless masses’ of bandit groups – known as klephts and armatoloi – included illiterate peasants, artisans and local clergy, together with the local notables, the landowners of the Peloponnesus and the shipping magnates of the islands. These formed a motley revolutionary army that succeeded in transforming local resistance into national feeling. The ‘Struggle for Independence’ – the term the fighters used for their revolution against the Ottoman state – was indeed a story of heroic deeds, self-sacrifice (both individual and collective) and strong feelings of solidarity, but it was also a story of political upheaval and social discontent, civil strife and strong factionalism.2

Violence and honour According to the cultural code practised by the revolutionaries, there were two particularly highly valued ideas: the occasionally related concepts of violence and honour. Violence was a means to respond to the difficulties of the belligerent situation and to gain power, wealth and status, whereas honour was considered a sine qua non element of one’s social existence; its defence depended on physical prowess and one’s ability to fight and use violence efficiently and effectively. Therefore, the two concepts appeared interrelated, but what occurred when these two opposed one another as in the cases of rapes? This chapter focuses on a particular form of violence – the sexual, within the framework of the transitional revolutionary period, the Greek Struggle for Independence (1821–1828) and attempts to trace some response to this question. The words used to indicate rape in these sources are atimazo and diaftheiro. The first translates to mean ‘to deprive someone of their honour’ and the

142 Katerina Mousadakou second, ‘to corrupt’. Therefore, the act of rape had first of all a moral meaning, and so had also implications for the successful maintenance of familial status and power. Doubtless, during wartime many rapes were perpetrated by both sides since this kind of crime was considered a systematic act of war that followed and even symbolised the conquest of a region.3 The violation of the enemy was covertly and silently legitimised by the particular circumstances of the war and, therefore, the Greek memoir writers avoided reporting incidents of sexual violence against Ottoman women.4 However, this was obviously not the case as far as rapes of Greek women were concerned where the issues of morality were clearly viewed differently. Since the latter was considered an act of shame and dishonour for each party involved, the writers not only recorded these rapes but also stigmatised them.

Rape and dishonour: legal issues and sources This study focuses only on rapes of Christian Greek women by Greek men. The previously mentioned memoirs are not the only historical sources for the particular period; there is also the Struggle for Independence Archive.5 However, study of its records indicates that acts of sexual violence were not reported in the new state’s authorities. The majority of records in the police archive concern charges of theft, murders, assaults and economic disputes. Most of the women who appealed to the police were, unsurprisingly, widows or women who for some reason had no male authority figure to defend or represent them. They reported violence in general, as part of a murder or theft attempt, but there is no reference to sexual violence. It appears that it would be extremely disgraceful to them to report such a crime to the new authorities. At this point it should be noted that the new state’s decentralised mechanisms, such as the police, were new, unfamiliar and impersonal institutions. The peasant’s world was immediately and inextricably associated with one’s everyday and familiar objects and individuals. As a result, everything beyond these would be alien and strange, unlikely to attract anyone.6 Therefore, the citizens resorted initially to traditional, local centres of power, showing a preference for tangible and face-to-face resolutions of conflict. In rape cases, women who had male family members would probably turn to them in order to get revenge for their disgrace. As to the absence of rape reports, it should also be noticed that ‘there is no crime more difficult to prove than rape and no injured party more distrusted than the rape victim’.7 Women who wished to make their abuse known to the authorities were probably besieged on all sides by the so-called ‘rape myths’, such as ‘it is impossible to rape a resisting woman’, ‘men risk being falsely accused of rape’ and ‘some categories of forced sex are not really rape’.8 A woman would thus doubt her ability to gain sympathy, let alone reparation, since the blame would probably be put on her.

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After all, before rape became part of the world of violence, society had located it in the world of sin and debauchery. The abused individual had no right to accuse someone else, since she was considered herself contaminated. Her narrative would lack credibility because of the suspicion of her tacit consent and her diabolic sensuousness.9 What would come to prominence upon investigation would be her supposed lustfulness and not the material facts of her torture. She would also have her dirty linen aired in public during the investigation and the court procedure; a secondary victimisation would follow along with the embarrassment and the public humiliation.10 Therefore, according to the customary laws of the Ottoman period, still in effect during the Revolution,11 the woman who could not prove her unwillingness to engage in intercourse was the only one punished. However, if she succeeded in proving her accusation with supporting evidence such as witness testimonies, the offender would be forced to marry her, if she was a maiden, or at least provide some monetary compensation. The worst case for him would be to be sent to the gallows.12

Pre-revolutionary background context The ‘silence’ of rape reports in the Archive, however, along with the narratives from memoirs, permit a tracing of the mentalities prevalent within the social background of the era alongside the perceptions of both the rapist and the victim. According to the memoirs, crimes of sexual violence seemed rare in the beginning of the war. An explanation for the soldiers’ respect for women’s consent could be the widely held providential belief that whoever committed such a disgraceful crime would be cursed to die first in the battlefield.13 This strong belief was important for the cohesion and discipline of the soldiers’ unit (even though most were bandits from the pre-revolutionary era).14 In that period the bandits’ honourable behaviour and respect for the peasants’ women (their wives, sisters and daughters) gained the rural population’s trust. As a result, in the event of an organised persecution from the Ottomans, the bandits knew that they would not be betrayed or given up by the peasants. Moreover, the lack of any rivalry over women, or enthusiasm for the sexual conquest of a woman, helped to maintain the strong masculine bonds of the armed group.15 Any chieftain who behaved inappropriately in relation to issues involving a woman’s honour was abandoned by his men, being considered consequently dishonourable and unworthy of their respect and loyalty. Underlining this was the narrative of a folk song where bandits killed their captain because he raped the woman they had abducted for ransom purposes.16 However, even in the pre-revolutionary period, bandits did not always stick to their code of honour and occasionally committed rapes, as again folk song indicates.17 One of the oldest surviving Greek folk songs relating to this period, from Macedonia, dealt with the abduction of a rich widow by armatolos Nanos:

144 Katerina Mousadakou We’ll go and rob the house of the widow of Nikolos, Where there is much money and silver plates And he lusts for the lady The armed men desire money, they want the valuable coins And Nanos desires the lady.18 In another folk song, armatolos Syros tried to abduct a priest’s daughter. The girl reminded him of her father’s religious and social status; nevertheless, Syros insists on threatening her with his sword, a concept with a clear double meaning.19 Even more characteristic is the song referring to kleftarmatolos Zacharias. The outlaw boasted of violating both the daughters and the daughterin-law of a priest.20 In such narratives, the ideal of respecting a woman’s honour was clearly being ignored. But were these examples exceptions? Or has it to be said that the folk songs of the klephts, known as klephtika, would never refer to such crimes if it had not been in reality a practice for at least some of the outlaws?21 Here it must be added that the memoir writers, as well as these songs, reported rape cases perpetrated by the bandits in the pre-revolutionary era. Kanellos Deligiannis, a notable who, during the Greek Revolution, saw his hegemonic role threatened by his former bodyguards and right-hand men, the kapoi,22 lodged several reports of their dishonourable behaviour: ‘they seem to have no hesitation in assaulting and raping Christian women . . . Kapos Zacharias raped the daughter and the daughter-in-law of a certain priest in Loganiko village.’ The former ‘in absence of his first lieutenant, Koukeas, dishonoured Koukeas’ sister’.23 The writer of this memoir was particularly eager to spoil the image of his political opponent, the eminent revolutionary captain Kolokotronis. That was why he reported that in the past (in 1806), ‘men of the Kolokotronis’ family had corrupted maidens in the village Vromosela of Megalopolis and even the sister of Vrestheny’s archbishop.’24 Deligiannis also described vividly the brutal torture of the daughter-in-law of Dimitrakis, the notable of Karitaina village, and accused Kolokotronis and his men of being the culprits in order to stigmatise them: ‘They not only robbed his property, but also tormented and finally murdered a female member of his family.’25 Meanwhile, another political leader, Ioannis Kolettis, in his declaration to the provinces aimed a series of charges intended to undermine the authority of the local notables. For this reason, he ironically addressed Sissinis, the notable of Gastouni, by saying, ‘you not only abducted and used for your own pleasure the peasant’s beautiful wife, but you also kidnapped his nine-year old little girl, oh, you virtuous man – perhaps in order to use her for your virtuous old age!’26 Such charges suggest that accusations of rape, and especially of young virgin girls, amounted to such a stigma that it was utilised to try to establish a significant and shaming blot on the good name and honour of a political opponent, because female virginity was considered a quality that provoked the deepest respect and almost a sense of awe.27

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Rape in the revolutionary context The reports of rapes in the memoirs increased during the years of the revolution. The prolongation of the Greek Struggle and the ferocities of the civil strife led to outbursts of baser and inferior instincts among the various combatants and led to an increase in incidents of sexual assault. 28 Usually, the perpetrators were irregular soldiers and the victims were defenceless peasant girls, as demonstrated through the evidence available from many characteristic and typical reports. For example, soldiers in the service of Gkouras, the provost marshal of Athens from 1822 to 1825, attacked the village of Chassia and raped its women in retaliation for the peasants’ protest against Gkouras’s despotism.29 On the island of Evvoia, during the dispute between two chieftains, Odysseas Androutsos and Diamandis Nikolaou, which lasted for about a year (September 1822–August 1823), the irregulars of both sides raped many peasant girls.30 In a memorandum sent to Maurokordatos (a politician), the captain of Vlochou, Alexakis Vlachopoulos, and his brother were accused of raping (and torturing with hot irons) honourable women and maidens.31 It is likely that this was a false accusation, however, as it originated from another chieftain, Staikos, who wanted to take control of Vlachopoulos’ territory.32 In August 1823, irregulars from the villages of Valtou, who were known for their extremely unruly behaviour, ‘corrupted’ some refugee women from the village Aspropotamos.33 One year later (in May 1824) a military force of 300 men from the Sarakatsanaioi tribe attacked Syrrako, a village in Epirus, and among other violent actions they ‘wore out virgins’.34 According to accepted morality, a woman’s honour was considered inviolable, a holy male property that her father, brothers and husband had a moral obligation to protect – a hard task during war. The sexual trespasser not only invaded the sexual terrain of his victim but also strove to triumph over the woman’s family. Beyond this, through assaults upon the family’s perception of shame and honour, such a trespasser sought to triumph and establish his conquest over their social and even political territory. Rape was not just violence; it was an honour offence that was used (especially during the civil strife) as means of establishing dominance in the process of the formation of new power relationships. The reputation of the men in the family for manliness was, of course, a deterrent against external outrage but it could not entirely repair the damage if such an attack against its women proved successful.35 This is underlined by the words of Kolokotronis, the military leader of the Greek revolutionary troops, in his declaration to the soldiers, in the camp outside the city of Patra, in March 1822, when he characterised rape as ‘the political death of a family’s honour’.36 The wounded social prestige of the victim’s family could only be recovered through the ‘blood punishment’ of the perpetrator, leading often to a vendetta, a circle of recidivism.37 The sources clearly show that the physical and psychological harm done to the victim was of no significance to this male-dominated society.38 The focus of attention was on the men – on the rapist himself and the male members of

146 Katerina Mousadakou the victim’s family. The physical violation remained something very relative. It seems that the physical vulnerability of those weaker and least able to defend their honour had no special appeal to the revolutionaries’ community. The social status of both the perpetrator and the victim dictated the categorisation of the crime, the offence, its degree and the punishment. As a result, in cases where the offence was committed by a master against his maid servant, the authorities were inclined to give him a relative impunity from the consequences of his action.39 Sexual harassment seems to have been common in working places. Those women who had to work were the most probable victims of their employers. Their exploitation had both a class and sexual basis.40 On the island of Corfu, in 1824,41 a number of cases of rape of this type were reported. In one of them, the accused nobleman testified that he had intercourse with the victim, a fourteen-year old girl, each time giving her money. In this way, the lines between prostitution and rape were occasionally blurred.42 Following a similar line of defence, the men accused sometimes claimed that the accusation was simply a deceit, a form of blackmail, in order to be forced to marry a girl from a lower social class.43 It is also possible to ascertain the decisive importance of social hierarchy as a factor in the following incident. In January 1823, the governor of Athens, Makrygiannis, charged with acting as a guardian of public morals, arrested members of some notable and distinguished families who had tried to ‘take a girl’s honour by force’. They trapped the girl in a coffer and threatened to kill her if she screamed. Makrygiannis, who had frequently utilised violence as means of interrogation, was restrained in this case, confining himself to giving paternalistic counsel. He reminded the young men of their social status and the need to protect their own honour: ‘I will let you go so that you will avoid disgracing your families’ name. But you will have to compensate the girl.’44 Makrygiannis, who acted as the policing authority in Athens at the time, clearly adopted double standards in deciding on the appropriate punishment for such unequivocally outrageous criminal behaviour. He avoided taking judicial or even unofficial action against the young men, showing that penalties were not always imposed on the most powerful.

Soldiers as rapists Obviously, rape was seen as a crime against the value of honour, a mainly moral trauma and an insult to the divine order of a conspicuously religious society. Kasomoulis, the memoir writer and soldier, characteristically noted that ‘the thought that we sank so low as to become rapists, makes my flesh creep’.45 Therefore, rapes of Christian women by Christian men during the frantic and extended war had to be punished severely. According to the testimonies of foreign travellers, the rapist was held up to public ridicule and torture. In 1822, an anonymous German traveller reported that an offender was dragged naked in the streets of Athens with a placard

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saying ‘rapist’ hanging on his chest; he was also harshly beaten.46 A similar punishment strategy was reported in Tripolitsa: ‘they stripped him naked; they tied him on a tree and whipped him 300 times. After that, they dragged him in the streets so that all would see him blood-soaked. The young men hit him as he passed by.’47 That way, the community made an example of the perpetrator, demonstrating that whoever acted as a rapist would receive the same punishment. As far as the attitudes and behaviour of soldiers was concerned, there are a number of informative reports. In 1822, Captain Kolokotronis declared that any soldier who attempted to abduct or dishonour (rape) someone’s wife or daughter would be condemned to death.48 Therefore, when chieftain Vassos Mavrovouniotis failed to punish some soldiers who attempted to commit rape, he was severely reprimanded.49 Subsequently, two second lieutenants in the regular army, under Fabière’s command, who were accused of rape were immediately dismissed.50 In 1828, under Governor Kapodistrias’ authority, and according to a provisional penal law, any soldier who was demonstrated to have raped a woman was condemned to prison for a period of between three months and one year, as well as having to pay financial compensation of one up to six hundred grossia. If the victim was a maiden, the penalty was doubled.51 The punishment by this time was less severe. With the independence struggle coming to its end, the need for strict military discipline was not so pressing. Thus, only if the violation led to a woman’s death would the rapist be sentenced to death.

Conclusion To conclude, in this chapter the crime of rape has been examined as a historical phenomenon, within the specific social and political environment of the Greek Revolution. According to the common cultural code in place during the Greek independence struggle, that crime was sometimes conceived of as ‘a routine activity’, the result of ‘opportunity’ and an ineradicable ‘fact of everyday life’. With the outbreak of war, everybody was incorporated into a world of widespread insubordination and violence. To the extent that masculinity and aggression became the new means to achieve social distinction, the revolutionary society was relatively increasingly willing to overlook, or forgive, crimes such as robberies, looting and even murders. Importantly, however, this was not the case where rape was concerned. Rapes brought a level of dishonour that was never to be entirely forgotten or forgiven. The man who could not discipline his animal strength and passions would be considered weak and thus capable of shaming himself. Essentially, the maintenance of honour was, above all, a struggle for manly self-discipline, triumphing over emotions of cowardice and sensuality. Therefore, it offered an ideal basis for the evolution of a discourse about ‘genuine’ manliness. As a result, given that it was such a stigmatising crime, the reports of rapes of Greek women by Greek men are relatively few. They were only recorded

148 Katerina Mousadakou in written form in the memoirs of politicians and soldiers, not legal records. Despite the ambiguity of the sources, something that tends to blur any concrete assumptions, this chapter has sought to look behind the vela praetenta and trace perceptions of rape in its particular time and place.52 From this, what emerges most clearly is that the ‘Man of the Revolution’ who also behaved as a ‘Man of Honour’ could finally emerge not only politically and socially independent but also as free of blame, shame and guilt. Rape was a choice, not a necessity, of war and the choice between honour of the most highly valued sort and the ignominy that accompanied this crime was very distinct.53

Notes 1 On the theory of violence, see R. Dadoun, La violence: Essai sur l’homo violens, Paris: Hatier, 1999; see also P.Kondylis, Θεωρία του Πολέμου [Theory of War], Athens: Foundation: 1999; F. Engels, The Role of Force in History, E. Wangermann (ed.), New York: International Publishers, 1968; H. Arendt, On Revolution, Penguin, 1991; W. Sofsky, Violence: Terrorism, Genocide, War, London: Granta, 2003. 2 P. Lekas, ‘The Greek War of Independence from the Perspective of Historical Sociology’, Historical Review 2, Institute for Neohellenic Research, 2005, 161–83, see especially pp.161–2, 175. This provides a thorough analysis of the contribution of the Greek War of Independence to a broader societal change, within the wider context of the clash between tradition and modernity. See also D. Dakin, The Greek Struggle for Independence, Berkeley, CA: University of California Press, 1973; on the effects of the war and Greek nationalism in general, see H. Seton-Watson, Nations and States: An Enquiry into the Origins of Nations and the Politics of Nationalism, Boulder, CO: Westview Press, 1977, especially pp.110–17; P. Kitromilides, Η Γαλλική Επ ανάσταση και η Νοτιοανατολική Ευρώπ η [The French Revolution and Southeastern Europe], Athens: Diatton Publishing House, 2000; N. Todorov, Η Βαλκανική διάσταση της Επ ανάστασης του 1821 [The Balkan dimension of the 1821 Revolution], Athens, 1982. 3 In this context, Grotius noted: ‘But what are we to say of the licence to rape the wives or the daughters of the enemy? It is allowed by some and forbidden by others’, H. Grotius, Le Droit de la guerre et de la paix, 2 vols, Basle: chez Emmanuel Thourneisen, 1746, vol. 2, p.263. See also G. Vigarello, Sexual Violence in France from the 16th to the 20th Century, Oxford: Blackwell, 2001, p.15. 4 Especially in wartime, rape was part of a whole world of violence, a form of violence like any other. In cases where the victims were on the side of the enemy, rapes were considered even inevitable; see Vigarello, Sexual Violence, pp.9–23. 5 The study of the Struggle for Independence Archive and, in particular, of the Police Archive, held in the General State Archives in Athens, Greece, is the basic source of my doctoral research: ‘Public security and everyday life during the Greek Revolution: The Archive of the Ministry of Police 1821–1828’. 6 The Greek Revolution led to the ‘new’, but the cultural practices of the past had to be incorporated in the new structures; such a process was bound to cause conflicts into the receptive traditional local communities. By 1827, the war, invasion and anarchy had reduced the rudimentary administrative structure to shambles. For more on the effort to establish the Greek modern state in the revolutionary era, see N. Diamandouros, ‘Political Modernisation, Social Conflict and Cultural Cleavage in the Formation of the Modern Greek State: 1821–1828’, unpublished Ph.D. thesis, Columbia University, New York, 1972. 7 Joanna Bourke, Rape: A History from 1860 to the Present, London: Virago, 2008, p.23.

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8 For an analysis of ‘rape myths’, see ibid., pp.21–49. In this category can be placed the belief that ‘without the enjoyment of pleasure in the venereal act no conception can probably take place’, found in works on medical jurisprudence written into the nineteenth century. Gottlieb believes that ‘this was the reasoning behind a common assumption in law that a woman who bore a child could not have been the victim of rape; if she had been truly unwilling, she would not have conceived.’ B. Gottlieb, The Family in the Western World: From the Black Death to the Industrial Age, Oxford University Press, 1993, p.116. 9 The Greek mountain community, Sarakatsanaioi, believed in both a woman’s natural disposition to evil and the weakness of her will and that that enabled her to corrupt men. See J.K. Campbell, Honour, Family and Patronage: A Study of Institutions and Moral Values in a Greek Mountain Community, Oxford: Clarendon Press, 1964, p.276. 10 In this context, the terms π ορνεία (prostitution) and π όρνη (prostitute) were often used for any woman who might have had a sexual relationship outside marriage. Even the common law considered such women as whores. ‘In fact, in some cases, even women raped by soldiers could be accused of being whores.’ H. AngelomatisTsougarakis, ‘Greek women, sixteenth to nineteenth century: the travellers’ view’, Μεσαιωνικά και Νέα Ελληνικά [Medieval and Modern Greek] 4, 1992, p.349. 11 During the independence struggle, the regular law courts were not operational and most cases were tried by provisional jury committees, arbitrators or temporarily assigned policemen. On the judicial structure of the revolutionary years, see Diamandouros, ‘Political Modernisation’. 12 See M. Tourtoglou, Περί της π οινικής δικαιοσύνης επ ί Τουρκοκρατίας και μετ αυτήν μέχρι κα του Καπ οδιστρίου, Επ ετηρίς του Κέντρου Ερεύνης της Ιστορίας του Ελληνικού Δικαίου της Ακαδημίας Αθηνών [Criminal Justice in the Ottoman era and until the Governor Kapodistrias’ period, Yearbook of the Academy of Athens Research Centre for the History of Greek Law], 15, Athens: Academy of Athens Research Centre, 1968, pp.14–15. 13 See I. Philemon, Δοκίμιον π ερί της Ελληνικής Επ αναστάσεως [Treatise on the Greek Revolution], Athens: P. and A. Soutsos, 1860, vol. C, p.57. 14 The armatoloi were originally men of arms charged by the Ottomans with the maintenance of law and order, and the collection of taxes. The protection they offered easily became a continuous form of disguised brigandage and, by the nineteenth century, the differences between the armatoloi and the brigands or outlaws, the klephts, had been severely blurred. In practice, it often happened that the two groups merged slowly and imperceptibly, leading to a new term: kleftarmatoloi. Diamandouros, ‘Political Modernisation’, pp.120–7. See also D.N. Skiotis, ‘Mountain Warriors and the Greek Revolution’, in V.J. Parry and M.E. Yapp (eds), War, Technology and Society in the Middle East, Oxford: Oxford University Press, 1975, 308–29; J. Alexander, Brigandage and Public Order in the Morea, 1685–1806, Athens: John C. Alexander, 1985; R.V. Boeschoten, From Armatolik to People’s Rule: Investigation into the Collective Memory of Rural Greece (1750–1949), Amsterdam: Hakkert, 1991. 15 K. Simopoulos, Βασανιστήρια και Eξουσία [Torture and Power], Athens: Stachi Publications, 1994, p.486, n.461; P. Rodakis, Κλέφτες και Αρματολοί: Η ιστορικοκοινωνική διαμόρφωση του ελλαδικού χώρου στα χρόνια της Τουρκοκρατίας [Klephts and Armatoloi: The historic and social formation of the Greek area in the Ottoman era], Athens: Ellinika Grammata, 1999, vol. A, p.227. 16 Cl. Fauriel, Chants Populaires de la Grèce moderne, Paris: Firmin Didot, 1824; Greek edn, 1955, pp.37–8. 17 Simopoulos, Torture and Power, p.486, n.461.

150 Katerina Mousadakou 18 G. Chassiotis, Συλλογή των κατά την Ήπ ειρον δημοτικών ασμάτων [Collected Folk Songs of Epirus], Athens: K. Tefanikis, 1866, p.97. 19 A. Politis, Το δημοτικό τραγούδι, Κλέφτικα [The Folk Songs of Klephtika], Athens: Hermes, 1973, p.111. 20 Academy of Athens (ed.), Ελληνικά δημοτικά τραγούδια [Greek Folk Songs], Athens: Academy of Athens, 1962, vol. A, p.329. 21 Rodakis, Klephts and Armatoloi, A, p.228. 22 In the pre-revolutionary era, in Peloponnesus, most local notables entrusted the enforcement of law and order was entrusted to the kapoi, who were also used as their personal bodyguards. For more on kapoi, see Diamandouros, ‘Political Modernisation’, pp.127–31. 23 K. Deligiannis, Απ ομνημονεύματα, Σειρά Απ ομνημονευμάτων αγωνιστών του 1821 [Series of Memoirs of the 1821 Fighters], E. Protopsaltis and G. Tsoukalas (eds), Athens: Tsoukalas and Sons, 1956, vol. A, no. 16, 17, 18; pp.34–5. 24 Ibid., pp.38–40. 25 Ibid. 26 This document is dated 25 December 1824. See T. Stamatopoulos, Ο εσωτερικός αγώνας π ριν και κατά την επ ανάσταση του 1821 [The Internal Fight Before and During the Revolution of 1821], Athens: Kalvos, 1978, vol. A, p.454. The irony is that Kolettis himself, according to another memoir writer, General Makrygiannis, organised the whole scheme to get rid of Christos Palaskas in order to have his wife as a mistress. Ibid., p.78. 27 Campbell, Honour, p.278. Even married women were supposed to remain virginal in thought and expression. Sexual shame was felt to be an inborn moral characteristic that was part of a woman’s personality. Ibid., p.270. On the importance placed on virginity in these societies, see also J. Goody, The Development of the Family and Marriage in Europe, Cambridge: Cambridge University Press, 1983, pp.212–21. 28 On the conditions that led to the civil strife in this period, see J. Petropulos, Politics and Statecraft in the Kingdom of Greece, 1833–1843, Princeton, NJ: Princeton University Press, 1968, especially pp.24–37; 53–106; Diamandouros, ‘Political Modernisation’; also N. Rotzokos, Επ ανάσταση και Εμφύλιος στο Εικοσιένα [Revolution and Civil War in the 1820s], Athens: Vivliorama, 1997. 29 I. Makrygiannis, Απ ομνημονεύματα [Memoirs], S. Asdrahas-Karavias (ed.), Athens: Editions Estia, 1957, p.126. Selections of Makrygiannis’ memoirs have been translated in English, in I. Makrygiannis, The Memoirs of General Makrygiannis, 1797–1864, H.A. Lidderdale (ed.), Oxford: Oxford University Press, 1966. 30 A. Vakalopoulos, Τα ελληνικά στρατεύματα του 1821: Οργάνωση, ηγεσία, τακτική, ήθη και ψυχολογία [The Greek Armies of 1821: Organisation, Leadership, Tactics, Mores and Psychology], Thessaloniki: Vanias Publications, 1991, p.180. 31 E. Protopsaltis (ed.), Ιστορικόν Αρχείον Α. Μαυροκορδάτου [Historical Archive of A. Maurokordatos], Athens: Grapheion, 1971, vol. 4, p.979. 32 N. Kasomoulis, Ενθυμήματα Στρατιωτικά της Επ αναστάσεως των Ελλήνω: 1821–1833 [Military Memoirs of the Greeks’ Revolution: 1821–1833], J. Vlachogiannis (ed.), Athens: Vivliomama, 1997, vol. A, p.355. 33 Kasomoulis, Military Memoirs, p.340. 34 Ibid., p.411. 35 Campbell, Honour, p.271. 36 Vakalopoulos, Greek Armies, p.165. 37 A failure to respond to the insult damaged the prestige of the outraged group and all its members. See Campbell, Honour, p.273, on the Sarakatsanaioi community. For more on vendetta and the many murders that followed insults to a woman’s honour, see E. Alexakis, Τα γένη και η οικογένεια στην π αραδοσιακή κοινωνία

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της Μάνης [Races and Family in the Traditional Mani Society], Athens: Trochalia, 1980, pp.100–15; V. Psimouli, Σούλι και Σουλιώτες [Souli and Souliotes], Athens: Estia, 2005, pp.173–81; compare with M. Hasluck, Ο άγραφος νόμος στην Αλβανία, H. Skoulidas (ed.) and P. and E. Chatzipayli (trans), Isnafi: Ioannina, 2003, pp.197–234, first published as The Unwritten Law in Albania, Cambridge: Cambridge University Press, 1954. See Angelomatis-Tsougarakis, ‘Greek Women’, p.400: ‘the view that women were inferior to men was the norm, despite the fact that it was against Christian beliefs.’ See Vigarello, Sexual Violence, pp.17–20. S. Ploumidis, Έμφυλες σχέσεις και οικονομικές δραστηριότητες 1600–1864) [Gender Relations and Economic Activities (1600–1814)], Corfu: Ionian University, 2008, pp.78–9. Although Corfu, an Ionian island, protectorate of the United Kingdom at that time, did not suffer from the exigencies of the war, the cases mentioned in the local archives are indicative of that era’s mentality. Ploumidis, Gender Relations, p.83. Ibid., pp.83–4. Makrygiannis, Memoirs, p.112. Kasomoulis, Memoir, p.464, n.2. Simopoulos, Torture and Power, p.487. Maximilian Van Kotch, cited in ibid., p.487. Made while encamped outside the city of Patra. See Vakalopoulos, Greek Armies, p.165. Kasomoulis, Memoir, B, p.583, n.1. C. Vyzantios, Ιστορία των κατά την Ελληνικήν Επ ανάστασιν εκστρατειών και μαχών ων συμμετέσχεν ο τακτικός στρατός απ ό του 1821 μέχρι του 1833, Σειρά Απ ομνημονευμάτων αγωνιστών του [History of the Expeditions and Battles in which the Regular Army Took Part from 1821 until 1833, Series of Memoirs of the 1821 Fighters], E. Protopsaltis (ed.), Athens: Tsoukalas and Sons, 1957, no. 9, p.135. Vakalopoulos, Greek Armies, p.236, n.2. Joanna Bourke points out that ‘rape and sexual violence are deeply rooted in specific political, economic and cultural environments’ (Bourke, Rape, p.7). Ibid., p.18: ‘The person who sexually tortures others is a reasoning being who has made choices; those can change . . . By seeing the sexed body as always in the process of “becoming”, of being rendered meaningful, we can imagine a world in which different choices are made. We can forge a future without sexual violence.’

10 ‘Treat them according to the European tradition’ The discourse of blaming the poor, the problem of professional beggars and attitudes to poverty in modern Russia Julia Barlova Introduction The history of poverty, and of the enduring and often controversial social problems raised by poverty, can be studied from various research perspectives: as the history of charity/philanthropy; as a history of social policy evolution; as a comparison of different welfare models; or the different practices of dealing with the poor. It can also be viewed as life experience, by surveying poor people’s ways of life and their values. All these techniques, however, are entwined within the fragile sphere of attitudes. The answer to the question of ‘what to do with poverty and the poor’ has always been determined by the answer to the question of what to think precisely about the problem and how to perceive or judge the ‘poor’ as a social category. Various modes of perception of poverty and the poor in different epochs and countries have determined a particular community’s integrity, social activity, value systems and, no doubt, its priorities in social policy. Modern history has witnessed heated discussions over poverty and the poor in many European countries. The central question of the debate became that of guilt, or whether a poor or destitute person was ‘guilty’ (or not) of bringing about his/her miserable fate. Where the answer was positive, the indigent were considered as ‘deserving’ their ‘stigma of pauperism’, their poverty or unemployment, and the proposed remedy was not help, but punishment. A classic example of such a debate is provided by late eighteenth- to early nineteenth-century England, the first country where modern discussions on poverty and the poor became particularly vocal. On one side of the debate, there were those who argued that poverty was an inevitable phenomenon, that the population was growing faster than the means of its subsistence. Joseph Townsend, Thomas Malthus, Jeremy Bentham and their followers sought to persuade their audiences that the poor themselves were the main cause of spreading pauperism, being reluctant to work while thoughtlessly reproducing themselves. This approach questioned the propriety of any poor relief provided by the state, on the grounds that it further demoralised recipients. Only painful and repressive measures (or, at least, self-help) could lessen the suffering of

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the poor, was the argument. In Townsend’s words, ‘only hunger can set them to work.’1 Although the opponents of this group of influential thinkers tried to look at the problem from ‘humanitarian’ perspectives, the debate was a major factor in the passage of the notorious Poor Law (Amendment) Act 1834, which aimed to replace the earlier system of awarding ‘outdoor relief’ with a reliance on a harsh workhouse-based ‘indoor’ relief system. This outcome seems to derive from a will to emphasise personal responsibility for poverty or wealth, which was in harmony with a Protestant (specifically, Calvinist) value system interpreting wealth and success as properties of God’s chosen people.

Changing attitudes to poverty in Russia A ‘new’ form of social sensitivity had already manifested itself in seventeenthcentury continental Europe, where the emphasis was on blaming the poor for their poverty, which was later expanded upon by Foucault.2 He interpreted it as a deliberate policy of ‘internalisation’ and isolation of the poor as a motley crowd of criminal, insane and disorderly people.3 The realisation of the extent of such attitudes in Western Europe, however, raises a relatively unexplored question: about the migration of such a discourse into Russia, with its Orthodox and paternalistic values, and about the extent to which it influenced (or not?) public attitudes and the dynamics of Russian welfare policy. The Russian attitude to poverty is stereotypically associated with the famous phrase of Ostrovskii: ‘So what if he is poor? If I were poor, I would still be a human being. Poverty is not a vice.’4 The expression ‘poverty is not a vice’ became synonymous with the image of the so-called ‘Russian character’. There is no shortage in Russian proverbs and sayings of examples of similar sayings, instructing people ‘not to build a church, but to relieve the miserable and help the orphans’, or pointing out that ‘the rich man will buy his brain and the poor one would like to sell his own, but no one buys it’, or that ‘the man is a fool but his purse is full’. In general, the picture given from these sources is that it is the rich who are the immoral class, not the poor. In Russian literature and art, this pervasive sympathy towards the poor was often used as an instrument for constructing national identity. Nikolai Karamzin, a ‘Western-orientated’ thinker, in his famous Letters of the Russian Traveller, made a clear distinction between Russian and English perceptions of the poor: In the country where it is believed any sort of industriousness is worthily rewarded, a good man cannot be in misery; and from this maxim they [the English] have generated the rule: ‘he who is poor doesn’t deserve a better fate’ – the horrible rule! Here they make poverty a vice! Ah! If you want to depress any poor thing already depressed with misery – just send him to England: there he will know the torments of Tantalus!5 It is worth noting that A. Lindenmeyr, a historian of charity and social work in Russia, used the expression ‘Poverty is not a vice’ as an advertisement for her famous book.6

154 Julia Barlova However, beginning from the late seventeenth century, that ‘new’ perception of poverty identified by Foucault began to appear in Russia, as can be seen in, for instance, changes in the rhetoric of state orders concerning poor relief. Previously, legislation and decrees dealing with poverty had not included any kind of ‘blame’ rhetoric. When Ivan IV (the Terrible) sent his Message to the Stoglav in 1551, he publicly announced his disgust at the circumstance in which ‘beggars and cripples, rotten and old’ found themselves: ‘in misery, suffering from hunger, dirt and indigence, having no place to lay their heads, they wander around, and despised by all, they die from hunger and cold, unrelieved and uncared for.’ Ivan IV asked rhetorically ‘Whose sin is that?’, making it plain he did not blame the poor.7 Instead, in suggesting what needed to be done through the Stoglav Code, Ivan IV put the responsibility on those who were not poor; alms were encouraged, and almshouses were instructed ‘to prevent any violence or offences’.8 Such measures were not punitive in any way, in an interesting echo of the English system. Tsar Feodor Romanov was the first ruler to perceive strategies for poor relief more in terms of punishment than help. In his Decree of 1682, he proposed that the ‘needy’ should be treated in line with the ‘European tradition’. In other words, he was suggesting distinguishing between the ‘deserving’ and ‘undeserving’ poor, and then a process to ‘catch, isolate and exile’ the latter category, because they were supposed to be guilty of bringing about their miserable own fate, and this situation threatened the welfare of the community and the state. During the time of Ivan and Peter Romanov’s joint reign, it was decreed in 1691 that beggars should be caught and exiled to ‘their previous places of abode’ (an echo of settlement practice).9 If they were caught begging twice, they were to be arrested, whipped and ‘sent to Siberia’.10 This rhetoric culminated during the time of Peter the Great’s sole rule with his labelling of this section of the poor in 1725 as leniviye proshaki, which is apparently a direct translation of the English term ‘idle beggars’, as part of a prohibition on individual charity and personal giving to the poor, a breach to be punished by a fine of five roubles for each offence.11 During the eighteenth century, this ‘new’ attitude towards the poor was mixed with traditional Orthodox values and paternalistic ideas, but even so it had an impact not just on state policy but also on public opinion. In 1724 a self-made peasant, Ivan Pososhkov, published his Book on Poverty and Wealth. The owner of a number of distilleries and sometimes compared to Adam Smith as ‘the first Russian economist’, Pososhkov made some criticisms of Peter the Great’s measures, particularly the prohibition on almsgiving. Peter the Great considered the book provocative and arrested both the manuscript and its author. In detail, Pososhkov argued that ‘God has told us to help the miserable, but our judges punish for this.’ He also laid the responsibility for the peasantry’s poverty on landlords who, he thought, had a duty to ‘feed their peasants but not to let them wander around’, and also to increase the wealth of peasants. However, Pososhkov also gave his opinion that the lives of

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peasants were miserable ‘only because of their idleness’, and that ‘if a peasant is lazy he must be punished severely because he is inclined to turn to robbery and various thefts’.12 Another interesting factor is that the book contains an idealistic picture of a workhouse, an institution then known in Russia.13 Pososhkov argued that all beggars wandering the streets, young and middleaged, should be arrested and that when ‘ten thousand or more of them’ had been assembled, workhouses or shops should be built, where, under proper instruction, much could be done with the hands of those beggars. As a result, beggars, tramps and idle wanderers would vanish, or be turned into manufacturers, and get richer.14

The ‘new’ philanthropy in Russia During the eighteenth and nineteenth centuries, when Russia was transformed ‘in the Western style’, this ‘new’ philanthropic discourse, with its accent on the demonstrative component of poor relief in the shape of the ‘indulgent charity of the well-off towards the miserable’ was a tool in the construction of the popular identity of the philanthropist.15 On the one hand, it was a time when new poorhouses, almshouses and workhouses were opened; on the other hand, as the opening of new houses of corrections underlines, the ordinary poor and needy were accepted by these institutions alongside a dubious company of tramps, criminals (including convicts who for any reason could not be transported to Siberia), those held to be ‘feeble-minded’, and members of other apparently disreputable groups who caused concern to the wider community. However, the general public debate and – which is more important – the public stating of the key question about the nature of poverty and the poor in Russia dates to the second half of the nineteenth century. This chronology can be explained by the contemporary increase in extreme poverty and, in consequence, the expansion in urban beggary, both resulting from Russian industrialisation combined with the repeal of serfdom. Yet, while observing that politicians and thinkers became interested in the problem because its levels had become aggravated, it must be borne in mind that the rhetoric used here is not the language of the poor themselves, but that of those occupying the higher social strata. Such people were becoming uneasy because of the new visibility to them of the problems of poverty. When, after the 1861 repeal of serfdom, the practical responsibility for managing poverty and misery among the Russian peasantry shifted from landowners to the state, including local authorities, the latter consequently began to generate and encourage legislative initiatives and other plans to reform the poor relief system, to prevent it becoming overly burdensome. Tellingly, at the end of the century a special award was established by the Empress Alexandra Fyodorovna for the best published work on the problem. In the terms of the award, special attention was drawn to studying foreign experience and translating the works of foreign authors on the topic into Russian.16

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‘Writing’ the poor: condemning indigence Thus, it is scarcely surprising that the nineteenth century gave rise to numerous Russian texts on poverty, need and misery (identifying beggary as their consequence). These included reports by state officials and lawyers on misery and pauperism; research works on the history of charity and social work in Russia; and narratives describing poverty ‘from below’, on the basis of travels through Russia, talking to the poor and to beggars and vagrants. Despite the difference in styles, objectives and contents, all these writings, directly or indirectly, raised a number of important questions, namely: what are the reasons for impoverishment and destitution, how misery influences the morals of the poor, whether the pauper has a right to ask for relief, and, if yes, then what form it should take. The answers to these questions, accordingly, it was hoped could serve as guidelines for formulating strategies to address the issue of poor relief. Depending on the perspectives and the respective emotional attitude to poverty, these texts fall roughly into two general groups. The starting point for the first and most numerous group was a presumption of blame for individual poverty, accompanied by judgments on the poor as a potentially seditious and criminal threat to society. One characteristic is inclusion of a number of ideas that seem untypical of traditional Russian attitudes to poverty, including an emphasis on the necessity of ‘separating the sheep from the goats’, or of distinguishing between the deserving poor and non-deserving poor. In classifying the poor, ethical language was used to divide them into the ‘virtuous’ and the ‘wicked’ poor. The Vice-Governor of Voronezh, Karnovitch, started his Historical Essay on Beggary (1889) with the following words: When you wish, out of the kindness of your heart, to help your neighbour, you encounter two kinds of the indigent: the desperate, aged, sick and crippled, who, because of the absence of the special institutions, have to beg for help. . . . But you are also addressed by absolutely healthy parasites, pretending to be sick and crippled. . . . So help the former, save them from hunger and cold, but . . . push away the latter. . . . Unfortunately, relief given without making a distinction mainly goes to those wicked, ablebodied parasites who surely and immediately drink it all away.17 He also pointed out that ‘it was England that had first realised that helping the ineligible engenders pauperism’.18 One St Petersburg lawyer, August Levenstim, again distinguished between these two types of the poor in his 1889 Report to the Special Commission of the Ministry of Justice.19 In the Russian translation by Belov of Reverend Thomas Fowle’s The Poor Law, there was an epigram reiterating Edmund Burke’s words: ‘Those who labour are miscalled the poor.’ Belov decided not to translate the epigram into Russian (probably because he was afraid that to Russian readers, these words would seem absurd and cynical).20 Still, its main idea was echoed in the text, where

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the author suggested an ‘improved’ classification of the poor, including ‘those who genuinely had nothing’ and ‘those who possessed their powers of physical labour as their main property and source of wealth’. The idea of labour as a property clearly derived from Adam Smith’s Wealth of Nations, but its different interpretation led to a different conclusion: ‘I will not call a man “poor” if he is young and healthy, ambitious and with strong hands. I can neither call him poor nor feel pity for him.’21 This idea had to be adapted to the Russian ‘soul’, but one of the main arguments favouring this was the threat posed by the rise of professional beggars, which was regularly explained as a consequence of the kind-heartedness of Russians and their indiscriminate inclination to help anyone asking. ‘The cause of beggary’, Levenstim wrote in 1897 in Professional Beggary, Its Causes and Forms, ‘lies in the Russian character that sees in a beggar only a miserable creature and does not ask about its causes.’ He criticised the ‘typically Russian’ custom of seeing ‘a saint in every beggar and wanderer’, deriving from the belief that ‘Christ is still travelling along the World as a wanderer and testing the souls of believers’.22 In Pauper Folk, Maksimov described one set of popular customs about how to deal with paupers and beggars found in Russian villages: Whose tears and prayers will reach God sooner? That of a beggar. . . . Who to ask for help when children are ill or dying? the lucky hand of a beggar: you can give him a dole through the window, he will caress the child . . . there is also a custom of secret charity: if there is a disease or misfortune in the family, you must give food, money and things to the needy at night, anonymously. . . . That is where our one hundred-headed and many-coloured monster of beggary springs from.23 Thus, writings from this first group, in their detailed descriptions, depicted the corruption and vices of beggars. Levenstim remarked that ‘side by side with their drunkenness comes the strongest debauchery’. He claimed people complained they spread syphilis and there were many cases of polygamy among them, quoting as proof a report from a Vitebsk newspaper of a blind pauper living with a thirteen-year-old girl, who became pregnant. 24 In A World of Beggars and Drunkards (1898), Svirskii put into the mouth of a beggar the following statement: ‘I’ve morally fallen down, . . . [am] morally dead. . . . We are ill people, our disease is the paralysis of our will.’25 In Levenstim’s opinion, ‘carelessness and idleness’ were national peculiarities of whole ethnic groups inclined to pauperism and, using data gathered from Perm, Saratov and Tver regions, he singled out the Bashkirs, Tatars, Zyrians, Karels and Roma.26 To the minds of these authors, the amorality of the extremely poor manifested itself in their propensity to cheat ordinary citizens and to conceal large sums of money. Karnovitch informed his readers of one incident in Moscow in 1864 when

158 Julia Barlova the retired official Krasovskii, found regularly standing by the front steps of one Moscow chapels among the beggars, was found dead there. He was a decrepit old man of 75, but in his ragged coat, people found 60,000 roubles in hard cash, along with some banknotes which were absolutely reduced to dust and others which had long been withdrawn from circulation.27 Many similar stories appeared in the newspapers, including the tale that a bourgeois man in St Petersburg had married a pauper woman, who brought a marriage portion of 20,000 roubles, or the story that a pauper had died in Warsaw leaving several thousand roubles (it is interesting that this report appeared in Tambov newspaper).28 Levenstim often referred to the essays of a clergyman, Biriukov, from Perm region who described the beggars of his region as ‘vicious creatures spending huge amounts of money in different places of entertainment’.29 The credibility of such examples, rife throughout Russia, in the context of fears of a further expansion in professional beggary, was not questioned by most readers. Ironically, in appealing for a ‘clear distinction’ between poverty and professional beggary, these authors not only declined to make such a distinction themselves, but, on the contrary, expanded the ‘guilt’ of professional beggars to all the indigent. They apparently suspected the professional beggar within each person who fell into misery and asked for relief. There are many clues helping the historian to uncover the extent of this ‘blaming discourse’. General statements about the poor were sometimes ‘proved’ by particular cases, and statistical data was interpreted to produce biased analysis, that made the guilt of the poor ‘presupposed’. In one of the writings, the fact that from 20 to 25 per cent of all convicts were paupers served to prove the maxim that ‘pauperism is the (pre)condition for criminality’.30 That text insisted also that while it was impossible to determine the total proportion of paupers who were professional beggars, it was ‘obvious’ that ‘beggary was their profession’ for the majority.31 Levenstim argued that if any poor were young and able-bodied, it created a presumption that they preferred beggary to honest labour.32 In speculating on possible remedies, his only response was severe punishment of the poor for such ‘precrimes’. He agreed it was unjust to sentence a person to three years of forced labour for the ‘negligible offence’ of asking for money but added that the threat posed to society by such miscreants warranted it as a deterrent to further serious criminality.33 This absence of a clear watershed between the honest labourer and the evil idler is further illustrated in a description of the pauperisation of families in the St Petersburg’s docks. According to Svirskii, women’s earnings were very small, at eight roubles per month, but this was, for an honest labourer with a family, helpful. The problem was that a married woman could not work for long outside the home. A couple with a joint monthly income of 35 roubles

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could ‘live in clover’, but hard times began with the arrival of the first child and the reduction of the family income to 28 roubles, especially given the rises in rent and food costs. The ‘annual addition’ to the family in the shape of more children meant that the labourer got poorer and poorer, so ‘Misery sneaks up on him as an implacable guest’. He became acquainted with the pawn-shop, then with vodka, then with the slums. His lifestyle changed; he lay on the floor with his family, near another family, eating and drinking together and gradually, as his ways of thinking change, he came to enjoy that lifestyle.34 While apparently sympathetic, this depiction was rooted in two important Malthusian ideas: first, the pauperisation process inevitably led to moral decline; second, poverty grew because of the thoughtless reproduction of the poor. The rhetoric of recommendations about public assistance in most of the writings about poverty, misery and beggary was based on the moral stratification of poverty. Did a particular indigent raise questions about their right to assistance or not? Given the presumption that it was generally ‘levity, idleness and drunkenness’ that had led the poor to the slums, making the poor responsible for their own poverty, if an individual were to remain virtuous in poverty, they would suffer silently and humbly endure hardship.35 The move to ask for assistance signalled that that individual had joined the circle of the immoral poor and professional beggars. It was this logic that determined the severity of the ‘modern’ Russian approach to public assistance, making that assistance more akin to punishment than help. The echoes with the English use of ‘less eligibility’ criteria to distinguish between the deserving and undeserving poor are plain (except that that approach was, by the late nineteenth century, being actively criticised there and Russia’s attitudes were not based in the legal right to relief that operated in England); the intention of making the relief process so arduous was to ensure that only the genuinely destitute would seek it. This was how members of the Special Commission for reforming the poor relief system, led by K. Grot, understood the objectives of modelling public assistance according to ‘the English manner’. A number of them, including a lawyer, Latyshev, an academic, Georgievsky, and a historian, V.I. Ger’e, proposed that assistance should meet only the bare minimum of the most essential needs, to avoid procreating ‘parasites’.36 Ger’e’s priority was developing indoor relief within workhouses, or, as they were known to Russia, industry houses (dom trudolyubiya), echoing Jeremy Bentham.37 Levenstim asked the rhetorical question of whether an institution based on forced, punitive labour was a suitable solution for Russia, and answered it positively, on the grounds that the threat to society represented by beggars, including their inclinations to criminality justified it. He believed the poor had to be detained in workhouses for long enough to ‘cure’ them and accustom them to hard work.38

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‘Writing’ the poor: the reluctance to blame This condemnatory school of thought did not represent the entirety of nineteenthcentury writings about poverty, misery and beggary, however. A second group of writings, though less numerous, displayed at least a degree of reluctance to blame the poor for their own poverty, as well as critical comments on Western models for treating the poor. Interestingly, these texts reveal a contemporary consciousness of the unfair bias contained in the ‘blaming discourse’, even among some local authorities. One document in the Set of Responses by Rural and Urban Local Authorities on the Major Issues of Public Charity, published by Grot’s Commission, clearly demonstrates a refusal to embrace blame mindset. Unlike the others, Vologda District Council insisted it was not opposed to direct charitable giving to those in need, since they believed it was founded on religious principles and was the best way to reach the needy. By contrast, a third institution, standing between the donor or donation and the poor could be reasonably suspected of suppressing relief. These criticisms of public assistance institutions were strongly resented by other officials, particularly because of a fear that such statements would influence peasants’ minds and encourage them in their traditional sympathy for the extremely poor.39 In the area of legal theory, the works of Professor V.A. Gagen of Warsaw University stand out. In the spirit of the times, he devoted a whole series of works to study foreign systems of poor relief, although these works are now practically unknown, possibly because he took a different approach to the concept of borrowing from foreign experience. Gagen formulated the issue of poor relief in a very different way from that of the majority of his colleagues, by arguing for the legal right of the poor to assistance without reference to the issue of just deserts.40 He was equally critical both of liberalism (the basis of the English attitude towards the poor), but, significantly, also of socialism which, at that time, seemed to provide a simple panacea for the oppressed. Gagen labelled them the equal players in the Malthusian campaign long carried on by the scholarly community against the institution of compulsory public assistance. From the liberal perspective, he wrote, compulsory relief of the poor constituted an artificial intervention that intruded into the sphere of the free contractual relationship between the able-bodied person and the employer, reduced the supply of labour, artificially raised wages and forced employers to carry large losses and perhaps even face bankruptcy. His critique of the orthodox Social Democrats and Marxists (represented by Ged, Kautsky, Rosa Luxemburg) was that compulsory relief delayed and hindered the social developments they favoured. Since capitalism promoted the progress of poverty and the progress of crises, the rules of class struggle were challenged by a system that extended its activities to the able-bodied poor because this undoubtedly eased the mass struggles of workers and employers, and reduced the spread of class hatred – that prerequisite for achieving their desired social order.41

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Gagen commented that the ways in which legislation and practice in Europe separated anti-social parasites from the deserving poor was not perfect.42 He noted, for example, the desire of English legislators to include many new categories within the constituency of the undeserving poor, reflecting that in previous periods, a tramp had been sympathetically labelled a fugitive slave, but he was now stigmatised. He criticised the English system post-1834 because, in distinguishing between the ordinary and the occasional poor, it did not hesitate to rank the latter in the category of the undeserving.43 His ironic formulation of the situation there as a result of this ‘benevolent and enlightened law’ was ‘Poverty of the unable to work, Misery of the improvident, Death of the idlers, the strengthening of the powerful’.44 Russia, in Gagen’s opinion, provided a ‘striking example’ where compulsory relief existed for the generally dangerous and mentally disabled, while other categories could only be relieved on an optional basis.45 So, while the state admitted its duty, it never gave an individual the right to make a legal claim. This legal perspective explains why, despite the numerous texts on poverty and misery, Gagen insisted that in recent Russian literature, not a single important work on the topic of the right to relief had been published.46 Certainly, it is only rare that similar ideas are to be found in nineteenthcentury texts, and as a rule these do not provide the basis of the thesis but are included in comments and arguments that did not necessarily coincide with the final conclusions of the authors. Zhbankov’s Some Notes on the Project of Public Assistance did raise the question of the right for relief for ‘all those in misery’ and in his categorisation, he did not treat relief as punishment. Instead, he subdivided it into those needing permanent relief (mentally disabled, widows, elderly, crippled) and those needing temporary relief (drunks, fire victims, the unemployed, prostitutes).47 A thesis discussing the state’s responsibility for the welfare of citizens and obligatory relief for all the indigent was also put forward by Ger’e, whose sympathies were generally inclined to the provision of indoor relief in workhouses.48 Other critical comment can be found in Russian satirical magazines, which constituted an important sector of public thought and which often raised the enduring themes of poverty and wealth. The high-profile aspects of elite philanthropy, set against the background of official indifference towards and contempt for the needy often became the object of satire. Thus in one magazine, Budilnik, the nineteenth century was depicted as a needy old man. His wouldbe benefactors were shown to be motivated by a desire to ‘amuse’ themselves with charity, without any concern about which type of indigent would get the pittances they would raise through their activities. Ladies in high society added that it was only possible to get new dresses out of their husbands for balls held for charitable purposes. Businessmen favoured giving huge sums to these rich and powerful ladies knowing that the money would disappear, but it would be ‘useful’ for them in terms of their reputations.49 Criticisms of the indifference of the wealthy towards the poor is also visible in a poem by Minaev, published in another satirical magazine, Iskra:

162 Julia Barlova I feel pity for you, my unhappy brother, Your burden is heavy and lifelong, And though I won’t give a half-kopeck coin to you, I’ll cry and cry for you . . . And though your feet are bare in autumn and winter, I won’t give a crust of bread to you, But I’ll cry and cry for you.50 There were also many sarcastic comments about the concept of blaming the poor for their own fate. Typical comments from these magazines include, ‘Yes, the poor man is drinking, having a good time, enjoying his life . . . You can find such one everywhere, in every newspaper!’ Or, ‘when we are exasperated by a hungry man who, when without money, resorts to trickery, why not to compare him to a rich man who, having had a three-course dinner, resorts to trickery to get a fourth one?’51 Iampolskii, the specialist in Russian nineteenth-century magazines, detected ‘the obvious irony of journalists about the attitudes of conservative and liberal newspapers that depicted need and hunger as the results of the idleness and drunkenness of common folk’.52

Assessing the nature and extent of Western influences What conclusions can be drawn from studying these paradigms of perceptions of poverty and the poor in Russian public and social thought? By the second half of the nineteenth century in Russia, as elsewhere, two main approaches towards poverty existed, as is reflected in the written sources explored here. The dominant approach reflected an understanding of the problem similar to that of the protagonists of the 1834 reform in England. Later sociologists fitted it into the framework of Social Darwinism.53 Its distinctive features can be summarised as follows: Individuals were personally responsible for material hardships that brought them to the bottom of society (if they were there, they were content with such a lifestyle). Poverty, accordingly, was not an economic, but rather a moral, phenomenon based on personal ethical choices; not the consequence of particular social systems. Indigence spoilt people’s morals; accordingly, every indigent person was a potential beggar and a threat to social stability. Organised public assistance was harmful both to society and to the poor themselves, as it habituated the latter to idleness and mendicancy. For that reason, a system of poor relief must be based on social shaming, discipline and fear of punishment.

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Writings adopting this perspective were, practically speaking, narrowing the complex and topical issue of reforming the public assistance system and improving poor relief practices, including the levels of protection required by indigents and the problem of eliminating begging and mendicancy. By the second half of the nineteenth century such perceptions were well established in Russian public and social thought, appearing even in texts otherwise imbued with sympathy towards the poor. In favour of the presumption that there was a conscious adoption of European perspectives on poverty and the poor was the sustained contemporary emphasis on studying foreign experience – in Levenstim’s words, ‘the experience of wealthier and more civilised countries’.54 Such study was fostered from above, witness the fact that the prize awarded by Alexandra Fyodorovna for the best text on poor relief applied equally to translations. It was awarded for a Russian translation of Aschrott’s book, in German, on the English system.55 Above all, the rhetoric and logic used in arguments in favour of adopting a harsh stance towards the poor and the dispensing of poor relief clearly derived from the English debates in the first half of the nineteenth century. Comprehending the reasons why this perspective on poverty and the poor in Russia was encouraged is not easy. It can be presumed that it was partly as a result of the increase in private charitable initiatives at municipal, regional and Church levels that fell outside state control but nonetheless operated with substantial sums of money. Certainly, it is possible to identify public resentment over the wills of rich merchants such as Gubkin and Syromiatnikov who bequeathed their money to the poor, to be dispersed via direct almsgiving.56 Another credible reason could be a secret desire of the state, at a time of harsh economic and political realities, to transfer the responsibility (guilt) for the general misery of Russian people from government and officials to the population itself, sharing this responsibility/guilt between those who gave alms indiscriminately and those who actually asked for relief. Supporting this are statements such as those made by Maximov, to the effect that the kindheartedness of Russians enables beggars to be well fed, in comparison with the half-starved peasantry.57 Using ‘English’ logic could be useful for supporting proposals such as aiding the poor to work (trudovaya pomosch) through a system based on ‘industry houses’, the Russian version of the workhouse system, that gained popularity in Russia. The legal shift from outdoor to indoor relief in England after 1834 meant that the arguments contextualising the English system were ideally suited to translating for the Russian agenda of convincing people that indoor relief institutions were a positive development. However, this use of English arguments in Russian circumstances cannot disguise the fundamental difference between them, in terms of the differing historical and cultural contexts, which was often overlooked by researchers seeking to explain a ‘failure’ of attempts to reform the Russian poor relief system along Western European lines. In England, the criticisms were aimed at the pre-1834 Poor

164 Julia Barlova Law, based upon the obligatory taxes paid by ratepayers, depicted as ‘ordinary’ people, with the money raised spent on paupers (there was also hostility to the idea of any central state subsidies for poor relief). In other words, the post1834 reform, which continued to be funded through local taxation, was rooted in a general readiness to minimise, though not to dispense with, society’s locally based responsibility for its poor. In Russia, by contrast, the pressure was aimed at the traditional habit of relying on voluntary and private initiatives for assisting the poor. This difference is not immediately obvious to Russian historians, but it indicates that the wrong questions are being asked by numbers of Russian researchers. Furthermore, those ‘foreign experiences’ being studied in late nineteenthcentury Russia drew on the writings and examples of nearly fifty years previously. By this time in Britain, the ideas of Malthus, Ricardo and Bentham were already deeply outdated, and the ideology of social liberalism was in the ascendant. The economic paradigm of studying poverty was developing, where responsibility for poverty was divided into ‘personal’ and ‘social’ categories, with a concentration on elaborations via poverty indexes and similar criteria such as studying family budgets and living wage levels.58 Similar research-based studies did appear in Russia but not until 1918, and this trend disappeared because, as Russian sociologist V. Sycheva, put it, ‘the construction of socialism was declared to be completed, that meant that there were absolutely no reasons for the existence of poverty’.59 Perhaps that is why, in spite of the generally favourable grand rhetoric, none of the Russian authors drawing on this Western-inspired blaming discourse seem absolutely convinced about the propriety of this punitive character to relief, which was evident in the ill-formed and chaotic nature of some proposed measures. Karnovitch, for instance, appealed to the old Russian traditions of helping the poor (such as with nischenskiye izbushki or log huts for beggars in the villages), enthusing that ‘with ten plank beds, a stove, a pot of substantial slop and enough bread’ such establishments did not overburden the poor but did give warmth and sufficient food to the genuinely destitute. However, he then proceeded to blame the moral degradation of a drunken and confused peasantry, as well as indifferent local authorities, and noted the absence of a ‘cordial’ attitude to the problem from the local intelligentsia, who could persuade the peasantry of the necessity to take on the care of their destitute brothers.60 Levenstim’s proposals were even more contradictory. He was certain that repressive measures would result in a collision between the law and public attitudes, but he also advocated the abolition of testamentary charity, the establishment of poor rates and taxes, and an increase in the numbers of free canteens and night shelters. There was also a real difference between the character of English workhouses and those that developed as indoor relief institutions in Russia. In practice, as Bradley has noted, they displayed more preventative and charitable aspects, rather than correctional or punitive ones, in contrast to the more repressive experience post-1834 in England.61

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When historians seek to explain the general failure to establish a centralised state welfare policy in Russia in the second half of the nineteenth century and into the early twentieth century, it is common to stress Russia’s backwardness, the dominance of the rural population and the notorious stagnation of government. To this list the ‘perceptional’ factor needs to be added. Western approaches towards reforming poor relief systems ran counter not only to the Russian political system and social structures, but also, and more significantly, to Russian perceptions of poverty and the poor, and how to deal with them. A genuine adoption of any one of the various Western models was impossible without the establishment of a significantly different perceptional paradigm. However, it was not an easy task to re-educate Russian society as a whole, especially when there was a lack of conviction from so many apparent advocates of the change. The advice given in 1406 by Father Superior of Belozerskii Monastery to one Russian prince that if you cannot fast and are too lazy to pray, you can save your soul by helping the poor, retained its place in collective memory and seemed still relevant to many ordinary people in the nineteenth century.

Conclusion In conclusion, it may be added that the discourse of blaming the poor still exists in the collective conscience of Russian historians. In few texts on the Russian history of poverty and poor relief there is little or no clear distinction between such concepts as ‘public assistance’, ‘public protection’ and the ‘elimination of beggary’. These concepts are sometimes mixed together or are substituted for one another (although the concept of ‘public assistance’ is, of course, much wider). Partly because of the very significant gap in the study of poverty in Soviet historiography, modern researchers risk becoming a hostage of the interpretations laid down in nineteenth-century writings. This explains, in particular, why some bias remains in explanations of the Russian population’s pauperisation with the fabled ‘kindness of Russian folk’, or in ascertaining the validity of claims that ‘most rebellious elements of society came from beggars and the destitute’.62 Still, this bias by no means diminishes the value of research works that emphasise it. Rather, it can illuminate Lindert’s words about the topicality of an enduring dialogue between the ‘wish to help others and the intention to give them stimulus to self-help’.63

Notes 1 J. Townsend, Dissertation on the Poor Law by a Well-Wisher of Mankind, London: Ridgways, 1817, 1st edn, 1786, pp.36–8, 45. 2 Interestingly, the Act for the Relief of the Poor 1601 did not so allocate blame and culpability for poverty. 3 See Roy Boyne, Foucault and Derrida: The Other Side of Reason, London: Routledge, 1990; also M. Foucault, Madness and Civilization: A History of Insanity in the Age of Reason, ed. and trans. J. Khalfa, J. Murphy, Abingdon: Routledge, 2006.

166 Julia Barlova 4 A.N. Ostrovsky, Polnoe sobranie sochinenii, 16 vols, Moscow: GIHL, 1949–54, vol. 1, p.250. 5 N.I. Karamzin, Pis’ma ruaagogo puteshestvennika, Moscow: Pravda, 1988, pp.498–9. 6 A. Lindenmeyr, Poverty is not a Vice: Charity, Society and State in Imperial Russia, Princeton, NJ: Princeton University Press, 1996. 7 Stoglav Sobor byvshyi v Moskve pri velikom gosudare tsare I velikom kniaze Ivane Vasil’eviche v leto 7059, St Petersberg: Izd. D.E. Kozancikova, 1863, pp.1957. 8 Ibid., pp.198–9. 9 See Lorie Charlesworth, Welfare’s Forgotten Past, A Socio-Legal History of the Poor Law, Abingdon: Routledge, 2010. 10 Lindenmeyr, Poverty, p.30. 11 Ibid., pp.30–2. In England, a form of licensed begging was permitted but only to the settled poor. See Charlesworth, Welfare’s Forgotten Past. 12 Ivan Pososhkov, Kniga o skudosti I bogatstve, Moscow: AN SSSR, 1951, pp.166–8 (for an English translation, see Ivan Pososhkov, Book of Poverty and Wealth, London: Athlone, 1987). 13 The first workhouse in Moscow was only opened in 1777, under the terms of Catherine the Great’s Statute on Provincial Administration 1775, enabling the foundation of workhouses for young and idle persons, vagabonds and beggars. See Lindenmeyr, Poverty, pp.33–6 14 Pososhkov, Kniga o skudosti, pp.166–8. 15 E.V. Khraponitcheva, ‘Doma trudoliublia’, Moskovskiii zhurnal, 9, 1999. Available online at: www.mj.ru/99/9/index.htm (accessed 1 September 2009). 16 For more on Alexandra Fyodorovna’s philanthropic efforts, see Lindenmeyr, Poverty, especially pp.274–6. 17 B.G. Karnovitch, Istoricheskaia sapiska o nishschenstyve, Voronezh, 1889, pp.i–iv. 18 Ibid., p.2. 19 See A.A. Levenstim, Professional’noe nishschenstvo, ego prichiny I formy: bytoye ocerki, St Petersburg, 1890, p.4. 20 Belov, Prisrenie bednykh v Anglii, 1899, trans. from T.W. Fowle, The Poor Law: The English Citizen: His Rights and Responsibilities, Littleton, CO: Rothman & Co, 1979 (first published 1881), p.1. 21 Ibid., pp.2–3. 22 Leventstim, Professional’noenishschenstovo, p.5. 23 S.V. Maksimov, ‘Nishschaia bratiia’, in Istoria nishschenstva na Rusi, Moscow: Eksmo, 2009, p.47. 24 Leventstim, Professional’noenishschenstovo, p.41. 25 A.I. Svirskii, Mir nishschikh I propoits, Moscow, 1898, p.5. 26 Leventstim, Professional’noenishschenstovo, p.6. 27 Karnovitch, Istoricheskaia zapiska, p.15. 28 Ibid., p.46. 29 Ibid., p.38. 30 N. Iu. Rozhdestvenskaia, ‘Nishschenstov I bor’ba s nim v Rossii v kontseXIX – nachaleXX veka’, Jaroslaskii pedagogicheskii vestnik, 1(34), 2003, pp.1–6. 31 Ibid. 32 Leventstim, Professional’noenishschenstovo, p.22. 33 Ibid., p.67. 34 Svirskii, Mir nishschikh, pp.206–9. 35 Leventstim, Professional’noenishschenstovo, p.41. 36 For further analysis of the views of the commissioners, see unpublished manuscript by Dr. O. Salamatova, ‘Angliiskoe zakonodael’stvo o bednykhv rsskoi nauchnoi I obshschestvennoi mysli kontsa XIX – nachala XX vekov’. Clearly, though, there are not direct parallels with English workhouses.

Beggars and attitudes to poverty in Russia 37 38 39 40

41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63

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V.I. Ger’e, Chto takoe dom trudoliublie, Moscow, 1895. Leventstim, Professional’noenishschenstovo, p.81. Ibid., pp.14–15. See V.A. Gagen, Pravo bednogo na prizrenie, St Petersburg, 1907; also Brodiaga nishschii I Bedniak v Zapodnol, St Petersburg, 1910; Zapadnoevropeiskii bedniak, Warsaw, 1912; Obiazatel’noe prizrenie trudosposobynykh bednykj v zapadnoi Evope, Moscow, 1910. See also Charlesworth, Welfare’s Forgotten Past for comments on the English legal theory. Gagen, Obiazatel’noe prizrenie, p.4. Gagen, Zapadnoevropeiskii bedniak, p.721. Gagen, Brodiaga, p.41. Gagen, Pravo bednogo, pp.18–19. Gagen, Zapadnoevropeiskii bedniak, pp.12–13. Gagen, Pravo bednogo, p.16. D.N. Zhbankov, Neskoi’ko zametov po povodu proekta obschschestvennogo prizreniia, St Petersburg, 1895, p.22. See E.E. Zadvornova, ‘Istorigrafia sotsial’nogo prezreniia v Rossil vo vtoroi potovine XIX veka’, Vestnik Cheliabinskogo universiteta, Ser. 8, Ekonomika Sotsiologiia. Sotsial’naia rabota, 1, 2001, 95–8. Budilnic, 50, 1900. Iskra, 34, 1865, p.464. I.G. Iampol’skii, Satirischeskie I iumoristicheskie zhurnaly 1860kh.gg, Leningrad: Idatel’stvo Leningradskogo Unversiteta, 1973, pp.106–7. Ibid. V.S. Sycheva, ‘Izmerenie urovnia bednosti: istoriia voprosa’, Sotsiologicheskie issledovaniia, 3, 1966, pp.141–3. Leventstim, Professional’noenishschenstovo, pp.62–3. See the version in English, P.F. Aschrott, The English Poor Law System, Past and Present, London: Knight & Co., 1888. Ibid. Maksimov, ‘Nishschaia bratiia’, p.180. See, for instance, C. Booth, Life and Labour of the People in London, London: Macmillan, 1892, p.33. Sycheva, ‘Izmerenie urovnia bednosti’, pp.146–7. Karnovitch, Istoricheskaia zapiska, p.26. J. Bradley, ‘Moscow Workhouse and Urban Welfare Reform in Russia’, Russian Review, 41(4), 1982, 427–44. See Rozhdestvenskaia, ‘Nishchenstvo I bor’ba s nim’. P.H. Lindert, Growing Public: Social Spending and Economic Growth Since the Eighteenth Century, 2 vols, Cambridge: Cambridge University Press, 2004, 1, pp.3–4.

11 Shaming punishments of women in Russia in the nineteenth and early twentieth centuries Natalia Pushkareva

A weird procession is moving along accompanied by wild howling . . . along the country street. A small and completely naked woman is tied to the front of a cart. Her whole body is covered with blue and crimson bruises, her chest is slashed. It might have been that her stomach was beaten with a wooden branch or trampled under feet by heavy boots – her stomach has become hideously swollen and has turned very blue . . . A high muzhik in a white shirt is standing on the cart . . . he is holding the reins in one hand and a whip in the other hand; he methodically whips the back of the horse and small woman’s body. Behind the cart and the woman tied to it there is a large crowd gathering.1

Introduction: gender, infidelity and honour This passage by Maxim Gorky describes ‘the lead’, a punishment involving torture for a woman’s infidelity that shocked the 23-year-old author. These events took place in July 1891, in the village of Kandubovka, in Kherson province. What have been the sources of, and limits to, cruelty applied to women through customary and state-sponsored legal norms in the historical past? How and when, and under what legal influence, did the idea of imposing shaming punishments on women emerge? What agendas sustained such punishments into the late nineteenth century and what were the consequences of these for a woman disgraced in this way? What defines the Russian defamatory rhetoric justifying such gendered violence towards a woman’s body?2 This theme has previously interested Russian anthropologists, but far from all of its aspects were studied by them.3 Neither infidelity nor honour are gender-neutral concepts; indeed, it is gender rather than social inequality that constitutes the first historical form of social deprivation. For centuries, the concept of masculine honour has been ambiguous about the need for monogamy and modern social attitudes towards masculine honour and fidelity remain ambivalent and polysemantic. Female honour has been a different matter. Even today, female honour remains subject to interpretation, relying on expectations of chastity from single women and fidelity to husbands from married women. It does not require a legal expert to

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conclude that in Russia, as in many other places, the discovery of female adultery is always interpreted as ‘ignominy’ (sorom),4 amounting to the shame and disgrace of a Russian woman. Yet when did such attitudes emerge? How far were such cultural attitudes enshrined in law and what was the role of the Church in sustaining such attitudes? It was the Church that investigated adultery charges. However, state law was significantly influential in urban centres, especially among the upper classes, and it attempted to ameliorate Church influence. The Penal Code 1813, Part III, Section 6 (on punishments for offences against morals or on shameful crimes) specified an equal punishment for adultery for husband and wife, while still acknowledging the role of religious authority through the requirement for: ‘church penance and confinement in the monastery from six weeks up to three months’.5 The Code of Laws 1832 attempted to take adultery out of Church jurisdiction. The Church, though, refused to surrender the power it had over moral issues, justifying its stance as an issue of Orthodox Christian faith. The result was that marital cases were covered by a double jurisdiction during the nineteenth century, with the further complication that at times the legal norms of the old law (based on Byzantine law codes) contradicted new state law (as published in the Complete Collection of Russian Laws by the 1830s). This was particularly relevant to property rights because women were obtaining more legal recognition and independence in such matters. However, state written law in Russia evolved according to the ideological, economic and political needs of the state rather than the individual. Although shame punishments existed in Russian state law, the specifically gendered shame punishments experienced by women were never identified in any state legal codes. However, contemporary lawyers stated that such punishments for women were rooted in the will to ‘shame those who were guilty, to humiliate the vice by punishing those who identified it, to ennoble the meaning of virtue’.6 These different treatments meted out to single and married women are explored in this chapter.

Shaming rituals and marriage: the chaste and the unchaste girl In Russia, it was more permissible for an unmarried girl to conduct herself in ways inviting reproach than it was for a married woman to be unfaithful. When dealing with an unchaste unmarried girl, a general belief existed that she took responsibility for her actions, on the principle expressed by a Tenishev bureau’s informant from Yaroslavl province that ‘If the bitch doesn’t want it then the dog won’t jump all over her’. It is worth noting that a maiden’s ‘compliance’ was held to be justified if her affair was with a man of higher social status or wealth (even local clerks belonged to this category). However, it seemed utterly inexcusable if a maiden yielded her virginity to a poor man (muzhik). Wealth and high social status provided mitigating motives for her sin, although love and lust were condemned as both vicious and depraved. Virginity, for girls from wealthy families, might not have been as important as for poor girls:

170 Natalia Pushkareva ‘a sufficient dowry often covers the bride’s lack of chastity when she is to wed’, claimed one informant from Kaluga province.7 A range of cultural strategies were used to mark out such a girl, especially on marriage. The importance of chastity was incorporated into folk rituals such as the display of a bride’s blood-stained bridal robe to mark her chastity and so her ‘honesty’. Sometimes she appeared in front of the guests in the stained gown; other times she was additionally supposed to sweep the floor, getting rid of the bottles smashed in her honour. More often the stained robe was carried out to the guests and, after such display, it was given to the parents together with wine and best wishes, so they could dance joyfully on it.8 Usually, the demonstration of a bride’s ‘honesty’ took place during a wedding feast, before the roast meat was carved: ‘In the ancient times the display of the newlyweds occurred before the feast. This ritual, intended to verify the woman’s chastity, was so strictly observed that after the feast was set out, guests would demand that the “honour” of the bride be “shown”, otherwise the roast would not be carved.’9 Where there was no display of the stained robe, the main demonstration that the groom had found the bride chaste involved the smashing of dishes, glasses and cups – the symbol of a successful breach of the maidenhead or female ‘treasure’.10 In the Nizhnii Novgorod region, a wedding was considered cheerless and shameful without the smashing of tableware. By contrast, according to an informant from Kaluga province, a groom was supposed to smash the tableware, to ‘break and gnaw’ the spoons to indicate his disappointment at finding his bride unchaste.11 Where the issue of a girl’s ‘honesty’ was a public matter, this was central to any consequent shaming process, even before marriage. In Lithuania and Little Russia (Ukraine), one customary punishment for unchaste girls was to chain (or, to use Ukrainian terminology, shackle) them to the church gates (in Western Russia the iron chain was called the kunitsa or kuna).12 The chained unchaste girl was told she was ‘a disgrace to your parents and a reproach to your kin’. If a girl was to be shamed, this could be initiated by a ‘man scorned’ who had been a previous lover, or simply one offended by her indifference to him.13 It was common first to spread a rumour about a girl’s unchaste ‘dishonesty’, then to tar the gates of the accused girl and finally discuss it at a community meeting. The very act of drawing attention to the girl’s physical condition was itself considered defaming. Subsequently, in association with marriage rituals, the most important and liminal moment of the wedding feast featuring an unchaste bride was a restoration of the bride’s ‘honesty’. In other words, she was required to make a public confession of her guilt and so shame herself. If that happened, the shaming was restricted: There would not be any reprisals and shaming if she had confessed the loss of virginity before she was led into the marriage chamber. The newlywed girl bowed down to the feet of her father and mother, and her in-laws to confess her guilt and ask their forgiveness. Otherwise the shame endured, bringing disgrace to the parents of a bride and all her other relatives.14

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A groom whipping his bride because of her lack of chastity was described in nineteenth-century literature, but there is insufficient evidence that it was actually a regularly used ritual; it was more common for a groom to conceal his fiancé’s offence. An unchaste bride (‘A good sable but a crumpled one!’ according to a Russian proverb) could only be established as a wife by the groom and his family, and the women in particular from the new husband’s family (a mother-in-law or sisters-in-law) possessed a special right to shame any ‘dishonest’ bride.15 In the Olonetsk region, rituals testing the girl’s honesty were performed on the morning after the wedding. The groom and his best man, accompanied by the matchmaker responsible, would be served fried eggs by the mother-in-law. If the bride was found chaste, the yolk was cut out and the best man poured oil in the hole and smashed the bowl. If not, the fried eggs were cut into pieces.16 In Poles’e, an unchaste bride and her relatives were served plain and sometimes salted porridge.17 In the Cherkassky district, it was the groom’s mother who punished an unchaste bride, while the groom had to intervene, declaring he was his wife’s master: she who lost her virginity before marriage doesn’t walk to the table but crawls under it on her knees, showing her face from time to time. The groom’s mother strikes her in her face each time she shows her head until the husband forbids it (‘I won’t allow anyone to beat my wife in my house’), when the bride could emerge from the table and sit next to her husband.18 The shaming of an unchaste girl could spread to her family, but the direct shaming of the father of an unchaste girl was very rare. In the Don region, the parents of an unchaste daughter would be shamed through the singing of specific songs, putting a straw wreath or bread-rings on the necks of parents, and giving the girl’s mother (or if she was an orphan, her female guardian) a herring or sea roach (instead of the chicken that was usually laid on their knees if they had safeguarded their daughter from temptation). In the Kaluga region, it was commonly the bride’s mother who was initially shamed, possibly by being harnessed to a harrow that she had to pull through the village.19 In some places a horse-collar would be hung on the gates or roof of an unchaste bride’s parental home. In other regions a tar bowl (maznitsa), or alternatively sewage, would be daubed on the house walls. Sometimes the shaming was carried out by one of the groom’s male friends, who would climb on to the roof of the parental house with a bucket of water that he would splash from the top as a symbolic sign of the bride’s lack of chastity. These splashes of water represented that everyone had had a share of her. There is evidence that in some places people dragged a used wheel or, in winter, an old sledge20 on to the roof of the house. All these shaming activities were accompanied with verbal abuse, using such insulting words as ‘whore’, ‘strumpet’, ‘scum’, a ‘svoloch’ (deriving from the verb svoloch, to drag), a ‘cuckoo’s egg’, an ‘unworthy insect’.21

172 Natalia Pushkareva The most common shaming punishment before marriage included the symbolism of a horse collar, which indicated submission, although arguably (as a kind of ring or hoop) it also symbolised the vulva. It was hung on a nail, above the lintel of the bride’s house, but was more often put around the neck of the guilty bride and, sometimes, her parents.22 This acted as a symbol of her wild or animalistic nature, and as the direct antithesis of the flower wreath, the symbol of virginity.23 For such purposes, straw collars would be smeared with tar and other filth.24 In the Ukraine, the horse-collar was made of straw and the girl’s plait was untwined, with her face possibly covered by a shawl, she would then be dragged through the streets. Sometimes the girl’s legs were displayed by ‘tying her skirt up to the waist with straw ropes’ as another sign of shame.25 This custom of using a horse-collar as a shaming device rapidly became widespread among other national groups within Russia.26 Other common communal shaming strategies included giving a ‘worn out wine goblet (one with holes) or a pancake with a hole in the middle to the [bride’s] parents, or tying a worn-through bucket to the cart’s arch’.27 Sometimes pots with holes were put on the heads of the matchmaker and a bride’s father.28 It was regularly the case that other women, not men, were deemed responsible for an unchaste bride! In the Vitebsk region, for instance, bridesmaids had ‘shaming collars’ put on them, and they were then ‘led around the village, with the collar’s breast band trailing along on the ground’. Sometimes the bride’s parents and even the matchmaker were included in the parade.29 Indeed, the shaming of a matchmaker (instead of, or together with, the unchaste bride’s parents) was common in some locales. In the Povolzh’e region (Sviiazhsk) there was a special ritual of parit (steaming) the matchmaker. A matchmaker who put forward a ‘dishonest’ bride was laid on a bench in the street with her skirts raised and then whipped with a broom while snow was thrown on her.30 However, in the Arkhangel’sk region, the tradition of shaming a girl who had an illegitimate child had virtually vanished by the end of the nineteenth century. Sometimes such a girl might be thrown out of her parents’ house and denied the friendship or support of other women. If a charge of lack of chastity proved accurate, a girl could also be deprived of the right to twine her hair into a single plait. The community decreed that she had to twine her hair into two plaits instead and use a special headdress called a volosnik, instead of the maiden’s ribbon. Generally, shaming punishments involving hair were very common.31 For example, in the Russian central regions, landowners could order unchaste girls to cut off their plait as a sign of shame.32 Such punishments survived in communities such as Rostov, Poshehonsk, Vladimir, Dorogobuzhsk (Smolensk region) and many other regions where virginity before marriage remained prized, resembling older beliefs associated with early Christian marriage traditions.33

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Caveats and limitations The shameful legacy of such rituals should not be overstated. Apparently, shaming rituals such as ‘covering’ among Ukrainians were actually intended to repair the girl’s sin in the eyes of the community.34 In Russian villages, shaming was not necessarily a public punishment but was imposed by interested individuals. In the central provinces, marriage ceremonies for a girl who had lost her virginity actually included a purification prayer for a bride who had given birth. This enabled her to receive a purificatory certificate from the church wardens who were responsible for investigating cases of extramarital birth.35 Sometimes a demonstration of repentance was required: a priest could impose a penance where a sinner had to crawl thrice around the church on her knees. According to the data, though, this process for shaming and disgracing young women had almost disappeared by the beginning of the twentieth century. It was replaced by ‘a priest’s order to work for him for a few days’ (according to the report of one informant to the Tenishev ethnographic bureau in the mid-nineteenth century).36 Assessment of these rituals indicates that the further away from large urban centres, with their excess of males, the more flexible and restorative were the attitudes towards loss of virginity. While an informant from the Kaluga region reported that ‘there were no occasions when a girl with an illegitimate child could marry’, not so far away, in Tver province, another reported that ‘no public shaming for an unchaste girl was performed’.37 There is no evidence confirming the existence of a systematic use of shaming rituals for girls in Kazan’ region.38 Parents saw nothing wrong with their daughters exploring possible partners before marriage in Perm,39 while in Mezensk district, where orgies reportedly took place, virginity was of little importance. Indeed, a woman who had given birth would find a husband faster than a virgin.40 Describing Sol’vychegodskii district in Vologda region, the informant to the Tenishev ethnographic bureau noted: ‘It’s a rare girl who doesn’t allow herself to be banged by her beloved before the wedding . . . Males claim that it’s impossible to live without it and women say “oh, but we want it more than you do!”’41 In 1841, an observer of peasant life in Kaluga region wrote that chastity is not of great importance for our people . . . In many regions, including Kaluga, the custom has ended of demonstrating the marriage bed. A groom’s parents usually tell him: ‘Take her as she is and don’t go searching for something that you won’t find!’42 In Vologda region, although moral purity was still highly valued and those who had an illegitimate child were considered at fault, there was by this period no imperative for a public shaming (‘unless a husband gives a thrashing to his wife’).43 At the turn of the twentieth century, according to the informant from Bologda, ‘girls managed to avoid any consequences’. The loss of virginity itself ceased to be something revealed on marriage and young men did not concern

174 Natalia Pushkareva themselves with their bride’s virginity. ‘In general, it is possible to say of the relations of young people, that fooling around became quite easy’, as an anonymous observer concluded.44 There are no reports of any shaming rituals in the Russian north for this period, although a bride’s virginity was generally appreciated.45 The same held true for very remote Siberian villages; with an excess of men in the population, any opportunity of intimate relations with a woman was highly valued (especially among gold prospectors). Parents often received generous compensations for their daughter’s loss of chastity and ‘a child from an unmarried daughter was not at all disgraceful’.46 The idea that shaming rituals were ineffective had become quite widespread. One informant from Kostroma region (Varnavinskii district) noted that ‘regardless of the shaming process, you won’t be given another wife’. By the beginning of the twentieth century it was noted that ‘if a husband could not confirm his suspicions of a young wife, he will beat her initially, but then the issue will resolve itself over time’.47 In the Kaluga region, pre-marital relations were becoming acceptable among the young by the end of the nineteenth century. If at the beginning of the century girls were regularly humiliated by relatives with the taunt that she had ‘stained her tail’ before wedding, by its end typical responses to such reproaches were ‘It is my baggage and I will give it to those I want!’48 In Iaroslavl’ region there were acknowledged excuses for grooms who married unchaste girls that also indicate changes in attitudes towards virginity, such as ‘It is not soap – it won’t vanish’.49 Finally, the folk tradition produced a ritual for exculpating a girl wrongfully accused of dishonourable behaviour.50 The strategies for assessing a girl’s honesty became less intrusive by the beginning of the twentieth century. Thus, in Vologda region in 1898, according to one informant, people used euphemisms when enquiring about the virginity of the bride. A groom would be asked ‘Did you tramp in dirt or break ice?’, with answer generally being that he ‘broke ice’, especially if he did not want any publicity.51 In Upper Povolzh’e, the Russian far east and Siberia, it became common simply to display a large bottle or even a broom, tied with a red ribbon, or a pie, with a bunch of red berries or even a red towel on the floor instead of a bloodstained petticoat.52

The threat of infidelity in marriage The treatment of infidelity within marriage was, however, taken more seriously not just by the community but also by the Church and state institutions, and at all levels of society. Violation of matrimonial vows were considered by the clergy as a threat to the very foundations of society. Consequently, the clergy normally unofficially supported the shaming folk traditions for unfaithful wives. At worst, an unfaithful husband merited only a moral reprimand from his priest, but women were treated differently. It is interesting that state law was much more humane and milder towards adulterous women than were the cultural practices amounting to customary law. However, the majority of nineteenth-century lawyers still excluded any possibility of sharing equal responsibility for adultery between men and women.

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Equal responsibility of a husband and a wife for adultery contradicts public consciousness and deeply rooted social concepts and morals, based not on a priori theoretical reasoning, but on the requirements of everyday life, which is a result of certain economic and social conditions. Until the consequences [of adultery] do not change and complete equality of the sexes is attained, or until male responsibility for illegitimate children is made equal to that of women, women in their rights, activities, and ability to earn will be constrained and a wife’s adultery will be treated as more serious and criminal than that of a husband.53 While lawyers were discussing whether it was necessary to punish women for adultery, the ordinary people continued their customary habits. In the upper and the educated classes, adultery could lead to divorce. This could also affect the divorced husband’s career and his social standing, as in Tolstoy’s novel Anna Karenina. Among the lower classes, divorce was less common than the use of shaming punishments aimed at the wives. A husband who no longer loved his wife might turn to the law with accusations of her infidelity to end a marriage, as is confirmed by the hundreds of such petitions submitted to the Russian courts.54 Judging by volost’ court decisions, formal punishments for adultery were not serious. A woman might experience a short period of confinement or have to undertake community work. In rare cases, usually those of paupers, a whipping might occur.55 Backed by a court decision, a husband could also banish his adulterous wife from the marital home without any means of support (or her dowry).56 Unlike their husbands, wives were unable to sue for divorce around marital disagreements and it was only rarely that a husband would consent to a petition for divorce from a wife.57

Shaming rituals within marriage: the unchaste wife Village elders and the community in general treated adultery and the moral lapses of married women much more harshly than the loss of virginity by an unmarried girl. It was said that adulterous wives ‘commit double sin: they break purity and corrupt the law’.58 According to public opinion, it was always a woman’s fault if adultery occurred. One informant to the Tenishev bureau from Iaroslavl’ region described the following incident: ‘Explaining why he forgave his brother [who had tried to seduce his sister-in-law] he responded: “It’s not my brother’s fault, a woman can tempt any fellow as Eve tempted Adam and it was my wife who seduced my brother.” ’59 Such attitudes also explained the popular motivations behind the shaming rituals for adulterous women: ‘It would be right to wipe them off from the face of the Earth or create a punishment that will make other women so afraid they will not tolerate any lewdness.’60 The most detailed descriptions of shaming rituals for adultery come from the south-west and central regions of Russia. According to reports from these areas, the process of humiliating an adulterous wife tended to be initiated by

176 Natalia Pushkareva would-be blackmailers who, when their attempts to get money failed, arranged for the shaming of their targets. As a rule, these were very poor and friendless women forsaken by a husband who had gone to find work elsewhere or widows without family. Such women had little protection nor the means to pay. Such women would be put in chains and ‘bound to the post for a few days’, and dragged around naked while music was played to attract attention to them, with wreaths of budiak (burdocks) on their heads. They could be smeared with tar and beaten unmercifully during the procession, or were compelled to dance or kiss a gate smeared with tar and have dust thrown in their eyes as they passed by.61 The main actors in this were female neighbours together with children and teenagers, who were described as whooping, screaming, insulting and casting stones at the fallen woman.62 In the Zadonskii Cossack villages of Cherkasskii district, it was commonplace to ‘look upon matrimonial infidelity with indignation and contempt’. In pre-modern times, if adultery had become public knowledge, the guilty parties had been led through their village with hands tied, accompanied by the beating of a tin cauldron. There is evidence that the women had been half-naked, another shaming element.63 Also, ‘boys beat on stove dampers, oven shutters and pans; men mocked, made jokes and swore, while women also discussed the case, but in general were more restrained.’ In some Russian regions (e.g. in Iaroslavl’), the community promoted vengeance by the legal wife on her adulterous rival. This might include breaking her windows and smearing her gates with soot and tar. However, by the beginning of the twentieth century Iaroslavl’ volost’ courts treated such action as a summary offence and discouraged it.64 A variety of femalemanaged shaming punishments targeted those wives (and sometimes widows) who sought to ‘steal’ away husbands from their families among Cossacks in Vologda region. Amid familiar shaming rituals criminal actions such as arson or murder or, less seriously, cutting off her braid, tearing her clothes and damage to her personal property would be perpetrated.65 Some Cossacks practised ‘winter bathing on a lasso in an ice-hole’ especially if a husband caught his wife in flagrante delicto. Alternatively, for ‘impudence, infidelity and other crimes the sinner was thrown in the water and drowned for the failure to observe honesty, with hands and feet tied and her shirt filled with sand or with a stone tied around her waist’. Some husbands ‘tied their naked wives to the wall in the yard and left them to be bitten by mosquitoes or at an ant-hill to be eaten by ants’.66 Less extreme punishments took the form of different types of social ostracism, which included not ‘accepting a bow from her’. On his return home, a Cossack had to lift his wife up and kiss her; failure to do that counted as a shaming of her, to be followed by private beatings.67 Cossacks regarded a public confession of guilt by an unfaithful wife to be essential. Only confession could save her from a public shaming since a Cossack man was then expected to forgive her.68 However, there is other reliable evidence which indicates that Cossacks from the Don usually tolerated loose behaviour by married women.69 Extramarital partners were

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called liubiashi (sweethearts) in Don dialect70. In other regions, men arranged to share the same woman as mistress and dubbed each other as brothersin-law, and a married woman was often expected to have sexual relationships not only with her husband, but with his friends and her own father-in-law).71 In some rare cases, when both partners in a Cossack marriage mutually consented to have ‘friends’, under such circumstances this situation was not considered dishonourable.72 In the peripheries, attitudes to adultery significantly differed from those in central regions of Russia. Adultery was punished more and more harshly further down south and less severely further up north. Physical abuse of a wife by her husband was considered acceptable throughout the nineteenth century. In central and south Russia, wife-battering for infidelity by their husbands was especially ferocious. A beating was administered with a bundle of twigs, with the woman suspended upside down in the yard or tied to a wooden plough, or hanging by her plaited hair from the ceiling beam or tied by it to the horse’s tail, while neighbours watched passively: ‘a husband does what he wants’.73 It was accepted that such treatment was the ‘right thing to do’, and that a husband had unlimited power over his wife.74 In Iaroslavl’ region, husbands beat their wives into unconsciousness. An exception could be made if a wife had been adulterous with a rich man. Then, because a husband could profit from his wife’s conduct, he would beat her ‘only for appearance’s sake, so that neighbours wouldn’t laugh at him’.75 Even in the Russian north, where peasants practically never used community shaming punishments for adulterous wives, it was considered essential to allow a husband to take his revenge on his wife. Economically, it made more sense to punish her rather than divorce her. In Povolzh’e, an adulterous wife was supposed to be beaten both in the home and publicly.76 In Tver’, Kostroma and the Russian north it was considered inappropriate to display such matters publicly. Another typical shaming punishment involved harnessing an adulterous woman to a cart, imitating the way cattle were treated in the household.77 By the start of the twentieth century in Altai region, harnessing an unfaithful wife to a cart or sledge (‘a husband compelled her to draw him, while beating her with the lash’) was something still remembered by elderly residents after the Second World War.78 Cossacks used to chain an unfaithful wife to a graveyard cross, with the hem of her skirt strung above her head for the night. The reasoning was ‘Let her appear naked in front of everyone’.79 Extramarital relations became more acceptable with the emergence of economic migration, when husbands or wives left for urban centres to provide for their family. In the opinion of the informant from Vologda, this had ‘fatal consequences: those returning are almost all corrupted’.80 The informant from Nizhnii Novgorod (Lykoianovskii district) noted that ‘cases of matrimonial infidelity happen quite often’, but also indicated innovations that had not been heard of a century ago: ‘In responding to the question: why did she leave her husband, she said: “He was a bore . . . I did not love him.”’81

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Twentieth-century developments Retributive shaming punishments for women slowly disappeared during the wars and revolutions of the first half of the twentieth century. In Soviet times, however, the development of the theme ‘Shame is equal to death’ and Stalin’s pro-birth policy aimed at ‘strengthening the family’ created practical difficulties in obtaining a divorce.82 In different forms, shaming punishments reappeared during these years, aided by the reality that the private life of individuals was becoming more obviously a matter for the state. In these years, intimate relationships became the subject of ‘examination’ (razbor) at the komsomol and party meetings. Even during the more relaxed Khrushchev era, the habit of public discussion (and criticism) of adultery, and the condemnation of adulterous wives within workers collectives, party and trade-unions meetings, remained in place.83 State policy promoted the ‘strong Soviet family’ as a moral control upon behaviour.84 Thus, collective community decisions based on what was claimed to be ‘justice’ frequently turned into a samosud (lynching) until very recently. According to contemporary social psychologists, disciplining the members of a collective resembled the penitential practices of Orthodox Christianity.85 It also echoed traditions of Russian community meetings (especially in the south), which attributed the degree of blame the punishment for women who broke the rules, indicating such social memory did not disappear within a century. Alain Blum, the French anthropologist, has insisted on a careful assessment of industrialisation’s influence on the family relationships, highlighting the conservatism of traditional Russian domestic structures and their preservation of marriage as a basic element of family stability. The USSR might have become an industrialised state, but the old views remained engrained in its social consciousness.86 Today, traditional attitudes defining permissible and prohibited behaviour still prevail, notwithstanding the current devaluation of virginity against a background of easily available contraception and women’s economic independence. The theme of woman’s freedom having gone too far is present in many current mass media discussions and in the countryside at least, it is likely that the idea of shaming adulterous wives remains popular.87 Equally, according to the latest polls, almost a third of educated respondents agreed that a man was justified in beating a wife for misconduct, especially adultery.

Conclusion Nineteenth-century scholars believed that ‘the history of punishments is the history of their gradual extinction’.88 Analysis of the long-term history of shaming punishments of women showed that they had not always existed, so the period of their practice and significance was historically specific. Thus it is possible to agree with Norbert Elias that with the decline of feudalism, shame gained more significance in the structure of human emotions, explaining why

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shaming punishments became especially visible between the sixteenth and eighteenth centuries. In early medieval Russia, when the influence of old pre-Christian moral norms prevailed, shaming punishments do not seem to have been practised and they did not emerge before the sixteenth century. Elias, unfortunately, neglected the shifting nature of punishment from shame to cruelty, which became visible in policies aiming to control criminality among the lowest classes in Europe from the seventeenth century. In Russia, it became obvious with the failure of arbitrary punishments before the abolition of serfdom in 1861. Presumably, it was in the middle of the nineteenth century that the idea of offender reintegration into the community gradually gained weight first in Western and then spread to Eastern Europe, eventually reaching Russia. Independent choices in sexuality and private life have, historically, always been vulnerable to the expansion of power structures according to Foucault. Spaces for mobilisation were produced by the expansion of power control: the more power entering the thoughts of an individual, the more methods of deterrence were required to produce obedience. Disciplining and punishing aimed at strengthening hierarchies. A woman who broke the rules was submitted to the absolute power of those who displayed her, while participation in this terrible spectacle validated power structures. The dominant position of males in the family, the strict prosecution of female matrimonial infidelity, the association made between ‘adultery’ and ‘debauchery’ and the assigning of the responsibility for this debauchery mainly to women was exaggerated in religious dogmas, as these identified woman as the source of sin.89 Early laws (state, customary and ecclesiastical) all promised guilty women physical and psychological punishment, including insults and accompanied by pain and fear. Subsequent Russian authoritarianism formed certain values which it found useful on an individual, case-by-case basis, emphasising respect for male strength, fear of male anger, and female humility and obedience to traditional values. Force and violence were inseparable elements of power; violence against an unchaste girl or unfaithful woman represented a destructive reaction against women’s failure to participate in shared behavioural norms.90 The use of violence against women and the invocation of shaming punishments varied in different locations in Russia. There were certain geographical trends: in the north, shaming became rarer and less cruel, yet the opposite situation was reported farther south. However, there were complexities and exceptions. In the Caucasus, the unchaste bride was subjected to heavy beating ‘by her husband and best men while guests had to spit on her’; effectively she frequently paid for carelessness with her reputation through public humiliation. However, in the same region, a man who corrupted a girl or slept with a married woman was expected (according to local Adat law) to pay with his life, often alongside the woman he had been caught with. Still, any exercise of the right to kill belonged to men, to a girl’s father or a woman’s husband.91

180 Natalia Pushkareva By the beginning of the twentieth century, both teachers and lawyers had actively started to argue against physically cruel punishments. Yet in subsequent crises and social upheavals, this society has tended to appeal to tradition, often producing something incongruous which has failed to correspond to modern thinking or its sense of justice. Interestingly, only the authoritarian elements in traditional culture appeals to such states. However, for real people, their threshold of shame can differ as well as their self-esteem, internal values, their aspiration to be understood, amid the context of propriety accepted by their society.

Notes 1 Maxim Gorky, ‘Vyvod’, Samarskaia gazeta, 26 February 1895, no. 44, p.2. 2 Teresa de Lauretis, ‘The Violence of Rhetoric: Considerations on Representation and Gender’, Semiotica, 54, 1985, pp.11–31. 3 T. Iu. Vlaskina, ‘Devushka-kazachka v predbrachnyi period’, III Kongress etnografov i antropologov Rossii, IAE RAN, 1999, pp.207–8; T.B. Schepanskaia, ‘Zony nasiliia (po materialam russkoi sel’skoi i sovremennykh subkul’turnykh traditsii)’, in V.V. Bocharov and V.A. Tishkov (eds), Antropologiia nasiliia, Moscow: Nauka, 2001, pp.115–76. 4 B. Basylev, Iu. Bel’chikov and A. Leont’ev, Poniatiia chesti i dostoinstva, oskorbleniia i nenormativnosti v tekstakh prava i sredstvakh massovoi informatsii, Moscow: Prava cheloveka, 1997, pp.12–13. 5 M.M. Abrashkevitch, ‘O preliubodeianii po russkomu pravu’, in N.L. Pushkareva (ed.), ‘A se grekhi zlye smertnye . . .’: Russkaia semeinaia i seksual’naia kultura glazami istorikov, etnografov, literatorov, fol’kloristov, pravovedov i bogoslovov XIX – nachala XX veka, 2 vols, Moscow: Ladomir, 1994, vol. 2, p.442. 6 N.A. Kostrov, Iuridicheskie obychai krest’ian starozhilov Tomskoi gubernii, Tomskaia gubernskaia tipografia, 1876, pp.78, 242. 7 Russkie krest’iane. Zhizn’ byt, nravy. Materialy ‘Etnograficheskogo biuro’ kn. V.N. Tenisheva, 5 vols (hereafter RKZhBN), Moscow: REM, 2004–07, vol. II, p.198; IV, p.165; III, p.430. 8 RKZhBN, II, p.429. 9 V.D. Sukhorukov, ‘Obschezhitie donskikh kazakov v XVII i XVIII stoletiiakh’, Russkaia starina na 1825 god, 1824, p.303. 10 RKZhBN, IV, p.267. 11 RKZhBN, III, p.210. 12 A.V. Tereschenko, Byt russkogo naroda, Tip. M-va vn. del, 1848, II, p.111. 13 ‘Samosud’, St. Peterburgskie vedomosti, 201, 1875, p.4. 14 A.F. Kistiakovskii, ‘K voprosu o tsenzure nravov u naroda’, in Pushkareva (ed.), A se grekhi zlye smertnye, 2, p.529; RKZhBN, V.2, 409; II. 2, p.359; III, p.313. 15 A. Kirkor, ‘Etnograficheskii vzgliad na Vilenskuiu guberniui’, Etnograficheskii sbornik, 3, 1854, p.149. 16 A.G. Smirnov, ‘Ocherki semeinykh otnoshenii po obychnomu pravu russkogo naroda’, in Pushkareva (ed.), A se grekhi zlye smertnye, 2, p.602. 17 G.I. Kabakova, Antropologiia zhenskogo tela v slavianskoi traditsii, Moscow: Ladomir, 2001, pp.180–1. 18 Kistiakovskii, ‘K voprosu’, p.554. 19 RKZhBN, III, p.313. 20 N. Krasnov, ‘Istoricheskie ocherki Dona. I: ot Razina do Bulavina’, Russkaia rech’: Zhurnal literatury, politiki, Moscow: Nauki, 1881, p.427; Kistiakovskii, ‘K voprosu’, pp.529, 552.

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21 RKZhBN, III, p.555. 22 Ibid. 23 M.A. Ryblova, ‘Ogon’, voda I skovoroda: k voprosu o pozorischikh nakazaniiakh po obychnomu pravu u donskikh kazakov’, in Dikarevskie chteniia–13. Itogi folklorno-etnograficheskikh issledovanii etnicheskikh kul’tur Severnogo Kavkaza za 2006 g., St Petersburg: Kubanskii kazachii khor, 2007, pp.397–414. 24 Smirnov, ‘Ocherki semeinykh’, p.602; Kistiakovskii, ‘K voprosu’, p.554; Iu.V. Argudiaeva, Krest’ianskaia sem’ia u vostochnykh slavian na iuge Dal’nego Vostoka Rossii (50–e gg. XIX v. – nachalo XX v.), Moscow: IAE RAN, 1997, p.104–26. 25 Smirnov, ‘Ocherki semeinykh’, p.247; M.M. Zhuravchenok, ‘Nabliudeniia, sdelannye v sele Optove Chernigovskoi gubernii’, Trudy ethnografichesko-statisticheskoi ekspeditsii v Zapadno-Russkii krai, snariazhennoi Imperatorskim RGO. IugoZapadnyi otdel, 6, 1872, p.461. 26 T.P. Fedianovitch, Semeinye obychai i obriady finno-ugorskikh narodov UraloPovolzh’ia (kon. XIX v. – 1980–e gg.), Moscow: IAE RAN, 1997, pp.40–1. 27 V.A. Lipinskaia, A.V. Saf’ianova, ‘Svadebnye obriady russkogo naseleniia Altaiskogo gornogo okruga’, Russkii narodnyi svadebnyi obriad, Moscow: Nauka, 1978, p.197. 28 N.A. Minenko, ‘Zhenschina–kazachka v Uralo–Sibirskom sotsiume XVIII – nachala XX v’, in Zhenschina v istorii Urala i Sibiri XVIII – nachala XX v, Ekaterinburg: Bank kul’turnoi informatsii, 2007, p.121 . 29 RKZhBN, II. 2, p.359; A.G. Smirnov, ‘Obychai i obriady russkoi narodnoi svad’by’, in Pushkareva (ed.), A se grekhi zlye smertnye, 1, p.602. 30 N.V. Zorin, Russkii svadebnyi ritual, Moscow: IAE RAN, 2001, p.92. 31 E.T. Solov’ev, ‘Samosudy u krest’ian Chistopol’skogo uezda Kazanskoi gubernii’, Zapiski Imperatorskogo Russkogo Geograficheskogo obschestva, 8, 1878, 17. 32 Smirnov, ‘Ocherki semeinykh’, p.247. 33 Gromyko, Mir russkoi derevni, p.96. 34 V.I. Dal’, Tolkovyi slovar’ zhivogo velikorusskogo iazyka, Moscow: OLRS pri Imperatorskom Moskovskom universitete, 1866, p.121; S.D. Nos, ‘Pokrytka’, in Pushkareva (ed.), A se grekhi zlye smertnye, 2, pp.524–5. 35 I.M. Snegirev, Russkie v svoikh poslovitsakh: Rassuzhdeniia i issledovaniia ob otechestvennykh poslovitsakh i pogovorkakh, 4 vols, Moscow: v. Universitetskoi tipografii, 1833, III, p.33. 36 L.N. Chizhikova, ‘Svadebnye obriady russkogo naseleniia Ukrainy’, in K.V. Chistov and T.A. Bernshtam (eds), Russkii narodnyi svadebnyi obriad, Leningrad: Izd. Vo. Nauka, 1978, p.176; A.F. Kistiakovskii, ‘Volostbye sudy, ikh istoriia, nastoiaschaia ikh praktika i nastoiaschee ikh polozhenie’, Trudy ethnograficheskostatisticheskoi ekspeditsii, p.20. 37 RKZhBN, 1, p.469. 38 ‘Zametka o gramotnosti i nravstvennosti krest’ian Laishevskogo uezda’, Kazanskie gubernvskie vedomosti, 47, 865, p.4. 39 Smirnov, ‘Ocherki semeinykh’, p.248. 40 RKZhBN, 3, p.330; G.A., ‘Vnebrachnye rozhdeniia v Arhangel’skoi gubernii’, Arhangel’skie gubernskie vedomosti, 77, 1870, p.3; P.S. Efimenko, ‘Sbornik narodnyh iuridicheskikh obychaev Arkhangel’skoi gubernii’, Trudy Arkhangel’ skogo gubernskogo statisticheskogo komiteta za 1867 i 1868 g, 3 1869, p.46; M.L. Sel’kova, ‘K izucheniiu semeinykh iuridicheskih obychaev na territorii Arhangel’skoi gubernii XIX v’, Istoriia i kul’tura Arkhangel’skogo Severa, VGPI, 1986, p.123. 41 RKZhBN, 5.3, p.663. 42 RKZhBN, 3, p.432; A.P. Zablockii-Desiatovskii, ‘O krepostnom sostoianii v Rossii. Zapiska 1841 g.’, in Pushkareva (ed.), A se grekhi zlye smertnye, 2, p.707; RKZhBN, 4, p.232.

182 Natalia Pushkareva 43 RKZhBN, 5.1, pp.363, 366. Sometimes such girls could be married off to poorer peasants: RKZhBN, 4, pp.407, 411. In the Far East, she could be married to a Chinese groom: Argudiaeva, Krest’ianskaia sem’ia, p.139. 44 RKZhBN, 5.1, p.575. 45 RKZhBN, 5.4, p.210. 46 P.P., ‘Zametka dlia nravstvennoi statistiki’, Sovremennik, 11, 1858, pp.105–9. 47 RKZhBN, 1, pp.64, 214. 48 Ibid., 3, pp.555–6. 49 Ibid., 2, pp.1, 218. 50 Gromyko, Mir russkoi derevni, pp.5, 99. 51 RKZhBN, 2, pp.2, 562. 52 Argudiaeva, Krest’ianskaia sem’ia, p.208; Zorin, Russkii svadebnyi ritual; RKZhBN, 2, pp.2, 359. 53 Svod zamechanii na proekt osobennoi chasti Ugolovnogo Ulozheniia; St Petersburg, 1885, III, pp.209, 367; Abrashkevich, ‘O preliubodeianii’, p.382. 54 Trudy Komissii po preobrazovaniiu volostnykh sudov: Slovesnye oprosy krest’ian, pis’mennye otzyvy razlichnykh mest i lits i resheniia [TKPVS], 9 vols, St Petersburg, 1872–4, II, p.183; III, p.88; IV, p.654. 55 TKPVS, I, p.402; II, p.35; III, pp.11, 55, 414. 56 Ibid., II, p.183; III, pp.233–44; IV, p.654. 57 RKZhBN, 1, p.477. 58 Ibid., 2, pp.2, 378. 59 Ibid., pp.2, 359. 60 Ibid., pp.2, 375. 61 Kievlianin, no.131, 1870, p.3. 62 ‘Nakazanie cherez posramlenie’, Russkii kur’er, 1879, 64, p.4; ‘Obrazchik krest’ianskogo suda’, Moskovskie vedomosti, 197, 1887, p.3. 63 Russkie vedomosti, 113,1885, p.3; Abrashkevich, ‘O preliubodeianii’, p.453. 64 RKZhBN, 2.2, p.365; 2.1, p.463. 65 Donskie oblastnye vedomosti, 44, 1876, p.5; ibid., 1881, 60, p.3; RKZhBN, 4, p.149. 66 Sukhorukov, Obschezhitie, p.265; N.N. Kharuzin, ‘K voprosu o bor’be Moskovskogo pravitel’stva s narodnymi iazycheskimi obriadami i sueveriiami v polovine XVII veka’, in Pushkareva (ed.), A se grekhi zlye smertnye, 2, p.465. 67 Russkie vedomosti, 210, 1882, p.4. 68 Moskovskii vestnik, 11,1860, p.28. 69 S. Nomikosov, Statisticheskoe opisanie Oblasti voiska Donskogo, Novocherkassk: Oblast. Pravl. Voiska Donskogo, 1884, p.320. 70 T.M. Barrett, ‘“Ne goditsia kazaku zhit’ odnomu”: Zhenschiny i gender v kazatskoi istorii’, Nestor, 11, 2007, p.271. 71 RKZhBN, 3, p.554. 72 Kharuzin, ‘K voprosu’, p.280. 73 ‘Nakazanie muzhem zheny’, Russkie vedomosti, 268, 1884, p.3; N.N., ‘Iz stanitsy Golodaevki’, Donskie oblastnye vedomosti, 99, 1879, p.4; S.S. Kriukova, Russkaia krest’ianskaia sem’ia vo vtoroi polovine XIX v., Moscow: IAE RAN, 1994, p.119. 74 Andrei Troitskii, ‘Muzh–varvar’, Penzenskie gubernskie vedomosti, 240, 1880, p.4. 75 RKZhBN, 2.1, p.463. 76 RKZhBN, 4, p.150. 77 ‘Iz Novomoskovskogo uezda’, Novorossiiskii telegraf, 371, 1887, p.2. 78 A.V. Saf’ianova, ‘Vnutrennii stroi russkoi sel’skoi sem’i Altaiskogo kraia’, in Russkie: semeinyi i obschestvennyi byt, Moscow: IAE RAN, 1989, p.96. 79 M.A. Ryblova, Materialy etnograficheskoi ekspeditsii VolGU za 1999, 2 vols, Volgograd: Izd-vo VolGU, 2000, 2, p.50. 80 RKZhBN, 5.3, p.212. 81 Ibid., 4, p.253.

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82 O. Kaz’mina and N. Pushkareva, ‘Brak v Rossii XX veka: traditsionnye ustanovki i innovatsionnye eksperimenty’ in Sergei Oushakin (ed.), Semeinye uzy: Modeli dlia sborki, 2 vols, Moscow: NLO, 2004, 1, p.200; A. Pushkarev and N. Pushkareva, ‘Ranniaia sovetskaia ideologiia 1918–1928 godov i ‘polovoi vopros’ (o popytkakh regulirovaniia sotsial’noi politiki v oblasti seksual’nosti)’, in Elena Iarskaia-Smirnova and Pavel Romanov (eds), Sovetskaia sotsial’naia politika 1920–1930–kh godov: ideologiia i povsednevnost, Moscow: Variant, 2007, pp.199–227. 83 E.M. Zhidkova, ‘Poprosil proscheniia u zheny i izvinilsia pered kollektivom’, Sotsial’naia istoriia za 2009, Moscow: ROSSPEN, 2009, pp.347–75. 84 Yulia Gradskova, Soviet People with Female Bodies: Performing Beauty and Maternity in Soviet Russia in the mid 1930–1960s, Stockholm: Stockholm University Press, 2007. 85 O. Kharhordin, Oblichat’ i litsemerit’: genealogiia rossiiskoi lichnosti, St Petersburg: EU Press, 2002. 86 Alain Blum, Naître, vivre et mourir en URSS: 1917–1991, Paris: Plon, 1994. 87 A Russian ‘yellow’ newpaper labelled the punishment of a woman by harnessing her in a cart ‘American’: ‘Muzh nakazal zhenu po–amerikanski’, Komsomol’skaia Pravda, 17 August 2005. Available at: www.kz.kp.ru/2005/08/17/doc78295/ (accessed 21 July 2011). 88 J. Jhering, Das Schuldmoment im römischen Privatrecht, Giefien: Emil Roth, 1867, p.4; A.Merkel, ‘Üeber Akkreszenz und Dekreszenz des Strafrechts’, in A. Merkel (ed.), Gesammelte Abhandlungen aus dem Gebiet der allgemeinen Rechtslehre und des Strafrechts, 2 vols, Berlin: De Gruyter, 1899, I, pp.269, 275. 89 I.S. Kon, ‘Muzhchina teriaet svoe gospodstvuiuschee polozhenie: seksual’naia revoliutsiia imeet zhenskoe litso’, Chastnyi correspondent, 16 January 2009. Available at: www.chaskor.ru/p.php?id=26292629 (accessed 21 July 2011). 90 Anthony Giddens, The Transformation of Intimacy: Sexuality, Love and Eroticism in Modern Societies, Stanford, CA: Stanford University Press, 1993, p.121. 91 L. Ia. Liul’e, Cherkesiia: Istoriko–etnograficheskie stat’ l, Kiev: UO MSHK MADPR, 1990, p.44; F.G. Kamkiia, ‘Prestuplenie i nakazanie v obychnom prave abhazov’, in Obychnoe pravo v Rossii: problemy teorii, istorii i praktiki, St Petersburg: Izd-vo SKAGS, 1999, p.217.

12 Insulting the Russian royal family Crime, blame and its sources Boris Kolonitsky

Introduction The pre-revolutionary imperial penal code considered insulting the royal family to be a serious offence punishable with up to eight years of penal hard labour. The offence comprised ‘insulting the Reigning Emperor, Empress or the Heir to the throne, or threatening their Person, the defilement of their image, committed directly or indirectly but with the purpose of disrespecting their Person, or distribution or public display of writings or images, insulting their Dignity’. Other living royal family members covered by the code included the ‘Grandfather, Father or Predecessor of the Reigning Emperor’. However, if the insult was committed without the intention of promoting ‘disrespect’, then the punishment became milder. If the crime was committed as a result of ‘misunderstanding, ignorance or in a drunken state’, the punishment could be similarly lightened.1

Perpetrators and punishments In accordance with the letter of the law sober, literate and educated offenders were to be punished more severely, prompting many perpetrators to feign a lack of education. The Russian researcher V.B. Bezgin, who studied the criminal cases of insult committed by peasants against the tsar during the 1880s and up to 1907, noted: ‘The common feature of these cases was that seditious words were very often pronounced in the pubs by drunks.’2 However, the accused often exaggerated the degree of their intoxication as they logically concluded that the authorities might be more lenient in such cases. It is no surprise that the investigators carefully sought to pin down whether the accused was really drunk during the act as it could clearly influence the punishment. E.A. Kolotil’shschikova, studying the management of such insults in the Tver’ region between 1881 and 1904, has suggested that while an arrest of the perpetrator by the volost’ authorities (volostnoe pravlenie) was usual, the use of imprisonment as the punishment for this crime there was relatively rare.3 This was the case during the First World War, although there were instances of more serious punishments.

Insulting the Russian royal family 185 However, taking a more general view, the basic reality was that insulting royal family members constituted a state crime. Such crimes were included in Chapter 3 of the penal code, entitled ‘Of Mutiny against the High Authority and Criminal Acts against the Sacred Person of the Emperor and Imperial Family Members’. This included the majority of the state crimes before the First World War. In her research into the Novgorod regional police office, M.A. Alekseeva, noted that ‘seditious words’ and ‘criminal expressions’ against the emperor provided the most common occasion for the state offence charge.4 There is evidence from different regions of Russia which confirms this, despite the comments on the Tver’ region. In 1911, 62 per cent of all convictions for state crimes were for lese-majesty. However, the majority of those convicted were not considered to be serious political offenders by the authorities. Most (1,167 out of 1,203) were imprisoned but got away with shortterm detention. This contrasts with the experience of perpetrators of political crimes, which were usually committed by the representatives of the so-called ‘intelligentsia’ (essentially people who had received at least secondary and usually higher education). In effect, the social composition of these convicts differed strikingly. Most defamers of the royal family were day-labourers, miners, and, agricultural workers (in 1911 80 per cent of defamers were peasants). Representatives of national minorities were over-represented in convictions for other political crimes, while the defamers were predominantly Russian (according to the bureaucratic classification of the day, which included Ukrainians and Belarusians).5

Drink and lese-majesty Thus, according to the contemporary criminal statistics the crime of lesemajesty was one committed by drunken Russian peasants. However, it seems improbable that the representatives of other social and ethnic groups insulted royal family members less often or were more careful in their words. Their equal involvement in this activity is confirmed by various sources. The French ambassador, describing the popular spirit in Petrograd in October 1914, noted that insults against the royal family were quite common in the conversations among the Russian aristocracy, yet the participants in these conversations were not prosecuted.6 It is more likely that among Russian, Ukrainian or Belarusian peasants there were people more willing to inform the authorities about the crime, while the educated townsfolk of different social groups very rarely used such accusations in their reports to the police. There were several typical situations leading to insults against the tsar and royal family members. They can be divided into ‘accidental’ insults, ‘carnival’ insults, insults connected with other rural conflicts, religiously motivated insults, and, finally, political insults per se – insults prompted by the unsatisfactory state politics, embodied by the tsar and other royal family members. The speech of many common people often contained plenty of profane words and in this context any mention of the tsar or other royal family members

186 Boris Kolonitsky ‘framed’ in such lurid profane context was formally regarded as an insult, although it might have been so framed unconsciously. One of the accused said that he ‘used profane words routinely as it was common in any other conversation’; another peasant, acknowledging his guilt, said that he ‘used profane words about the Person of the Emperor due to his habit always to swear in conversations’.7 It is possible that the explanations and justifications offered by the accused were inserted during transcription but the context seems quite clear. Thus, in one criminal case of lese-majesty, the following comment was clearly used to argue in favour of a more lenient attitude to the accused: ‘moreover, swearing is very common now, so he could say it not knowing that he insulted the tsar’.8 In some cases the insult was a result of a ‘transgressive’ or ‘carnival’ behaviour happening in an unusual or extraordinary situation invoking special behaviour and special words. In some situations, a drunken person’s behaviour overturned the conventional behavioural code as the sacred in these situations turned into the profane, and high into low. It is obvious that in these particular circumstances, people believed that they could insult both God and the tsar with impunity. Ironically, insults to God and the tsar were intertwined, probably reasserting the sacred nature of the Russian monarchy. In 1911 one peasant ‘being a bit drunk’ plodded through the streets of a working suburb announcing loudly to every passer-by that he did not fear God and did not worship saints; he castigated the Mother of God along with the miracle-worker St Nikolas, plus St Serafim of Sarov and the tsar.9 It is not clear how serious the defendant was in his accusations, but the very fact of his placing the tsar alongside the saints is quite remarkable. It means that a drunken peasant had challenged the established sacred hierarchy, of which the Russian tsar was an essential part. However, this case cannot be treated as an example of anti-monarchical thinking nor as blasphemy since it is not necessarily suggestive of atheistic or anti-clerical attitudes. It is significant that defendants who were intoxicated predominantly insulted the tsar. Thus, for example, very few among those who insulted the grand duke Nikolai Nikilaevitch, who was not a sacred figure, were drunks,10 but drunken peasants often sang songs containing insults to the royal family. Some attained notoriety and became common in villages. It might here be suggested that villages maintained wider folklore traditions when indulging in ‘carnivalesque’ insults to the tsar and his relatives in certain situations. These songs were often very ribald: ‘Our tsar Nikolashka and his wife Sasha and his mother Masha’, following with profane oaths of various kinds.11 Another song, recorded as performed by the 19-year-old drunken peasant, was even more indecent: ‘As our Tsar’s [dick] is three feet and our Tsarina’s [cunt] is broader than a mitten.’12 Yet the singers of indecent songs were not usually the publicists of antimonarchical ideas. Some songs were composed by prisoners narrating their fate: ‘I am going to Siberia,/ Blaming Russia,/ [F**cking] tsar and mother Maria.’13 Sometimes ex-cons were the performers, who thus committed another crime – this time a state one. Thus, on Easter Day 1916, a 29-year-old peasant,

Insulting the Russian royal family 187 who had already served two sentences and was deprived of all the rights and privileges, was heard singing in the street drunk: ‘There is no God, we do not need the tsar, we will kill the governor, we – swindlers and cons – will ride through the whole of Russia.’14 Men conscripted into the army and facing actual battle discovered they had a greater licence to drink, go wild, commit vandalism and hooliganism, all tolerated by authority and custom. There is a suggestion that at times such conscripts consciously used such tolerance to break the law. They used this freedom of speech in particular, taking the opportunity to express their political feelings about the emperor, as in the case of a 20-yearold peasant from Kazan’ region, F.V. Fomentsov. On 3 June 1915, being drunk, he was swearing in the street. A policeman cautioned him, reminding that it was prohibited to swear in public places. Fomentsov noted that he was conscripted and then, in the presence of witnesses, he said: ‘I am going to die for the tsar while he . . . [swearing] did not give us any land.’ As Fomentsov was conscripted, the case was not pursued.15 In many other cases when the accused were conscripted, their criminal cases were similarly overlooked. The authorities obviously did not want to delay their military service by detaining or imprisoning them. It is possible that some reservists, when mobilised, might have preferred a relatively mild punishment – usually an arrest by the volost’ authorities – to immediate dispatch to the front. For insulting the Grand Duke Nikolai Nikolaevitch, one soldier was warned that he was in danger of being punished. His response indicated he did not feel threatened: ‘I am not afraid of that; it’s even better for me, because then I won’t go to the war.’ He stayed under arrest between 24 July and 9 October 1915, but then was returned to the army. His refusal to plead guilty and the absence of witnesses (themselves conscripted and sent to the front) delayed the final sentence, while the accused was transferred from one unit to another and finally, in 1917, deserted. He was subsequently exonerated after the revolution.16 Clearly, in this case his calculations proved correct: committing the state crime of insulting a royal family member helped him to avoid being sent to the front, which probably saved his life. However, it might be suggested that the stance taken by authorities in suspending prosecution of the military served to confirm their special status in the community. Before service at the front or while on leave, the military were allowed greater licence than other citizens. It is not surprising that military personnel committed such crimes openly, demonstrating their disdain for authority. One soldier from the Pavlovskii life-guards, while on leave in his native village in Olonetsk region, set off to visit his friends together with his comrades. In their presence he sang a drinking song, starting with the following words: ‘All of Russia’s celebrating, Nikolai is wine selling.’17 This song obviously originated long before the war, and its established theme highlights popular allegations about the ‘drunkenness’ of the tsar and his profiteering from the state wine monopoly. In July 1914 in Kuznetsk, Saratov region, one drunk told his questioners: ‘He should be not a tsar but a bastshoemaker; if he were a good tsar he would never open state wine shops nor

188 Boris Kolonitsky corrupt Russia through drink.’18 Nevertheless, the restrictions on alcohol selling during the war were paradoxically interpreted by some defamers as a display of the tsar’s support for the alcohol trade. One peasant from Tomsk region, very upset as a result of ‘squandering’ money during Shrovetide 1915, blamed the tsar for it: ‘And all this because our tsar . . . [swearing] closed down all state wine shops. If he did not do that I would get drunk sooner and save this money, f**k him . . . [swearing].’19 Contemporary criminologists considered insulting the tsar to be a crime associated with drunkenness. Certainly, expressions such as ‘being drunk’, ‘was very drunk’ and ‘was relatively drunk’ appeared regularly in such court cases. However, as it has been mentioned, use of these descriptors of drunkenness should be treated carefully. The contexts of some cases indicate a suspicion that a particular miscreant was sober, with the consequent implication that they were fully responsible for the crime they committed. Combating such suspicions seems to have been the main motive for the accused intentionally to exaggerate their degree of intoxication. Typical phrases from the accused in the sources include claims that the defendant ‘was drunk’, ‘did not remember anything, but was not definitely able to insult the emperor’. However, witness testimony did not always support such claims. Commentaries from investigating officers in many cases noted that ‘it was not possible to prove whether he was definitely drunk’.20

Strategic uses of lese-majesty Lese-majesty cannot be exclusively associated with drunkenness. Many rural conflicts were solved with the assistance of a criminal accusation of lesemajesty, conflicts that intrinsically had nothing to do with the emperor, but where, by default, the tsar was used as a powerful symbolic ally by one of the conflicting parties. These conflicts might be divided into ‘vertical’ and ‘horizontal’. The first group includes disputes between peasants and the representative of rural authorities (village elders, volost’ superiors, clerks of rural and volost’ offices, or police). In 1914, there were 120 cases of insults against the royal family committed by peasants (excluding those who were German and Jewish colonists), comprising 64 per cent of all criminal cases from this year. In at least 28 cases, the insults were committed in the presence of authority figures and in at least 8 cases, in some local office (rural, volost’ or village office). In 1915, 35 out of 282 cases occurred in such a local office, and 30 in the presence of representatives of state authority. In the same year, at least 10 representatives of the rural authorities were prosecuted for insults against the royal family, which comprised 27 per cent of all reported cases connected with the different conflicts around executive authority in the rural areas. The authorities sometimes focused upon insults against the symbols of royal power (the shields of elders and other officers, containing the image of the state arms and the tsar’s portrait). At times they consciously provoked

Insulting the Russian royal family 189 individuals into uttering insults in order to have an opportunity to punish them for a state crime rather than for the lesser offence which had actually occasioned the dispute. The normative sacralisation of monarchial power and its symbols provided a convenient channel through which to discipline rural population. Thus, in December 1915, a village elder tried to calm down a drunken junior officer who was on leave from the army in his village. The elder used his shield with the imperial crown on it. The soldier told him: ‘F**k you together with the crown, the tsar and the Russian government.’21 It was probably this reaction the elder wanted, given that he immediately filed a report identifying it as a state crime, and so enabling him to restrain the unruly soldier. Sometimes several accusations appeared around such symbols of authority. In the village of Naskaftym in Kuznetsk district, Saratov region, one E.S. Kianskin, the ex-desiatskii,22 had delivered their shields to the newly elected officers. One, K.P. Builov, was said to have refused to accept the shield. Appalled, Kianskin asked: ‘How does he dare refuse the tsar’s crown?’ Builov responded by ‘castigating the crown’. When they attempted to put the shield on him, he reportedly said: ‘F**k the crown.’ The ex-desiatskii immediately reported Builov to the senior police officer. However, the accused and the witnesses claimed that it was Kianskin who had come to Builov, drunk, and had demanded more spirits as a reward for the delivery of his shield. Exasperated by such insults to the symbol of authority, friends of the newly elected desiatskii had asked Kianskin: ‘How dare you sell the crown?’23 The conflict here is a reversal of the usual scenario, since the reports meet at the point of accusation and counter-accusations. But what was the real reason behind this rural dispute? Was it the reluctance of the peasant to serve as an official representative of authority (something apparent in other cases as well)? Alternatively, was there a fight over possession of the office? Either way, it was another rural dispute shaped around the symbol of authority. The elders, superiors and clerks often used the tsar’s portrait (which always hung on the wall of local offices) as a trigger for conflict. Officials requested visitors not to swear, shout or smoke in the presence of the tsar’s portrait. After these requests, if an irritated visitor dropped some careless or reckless gesture towards the direction of the portrait (or the tsar himself) in the presence of witnesses and officials, they would often immediately report or even arrest the perpetrator on the spot. In other words, in such cases, officials deliberately provoked their fellow-peasants, prompting them to commit state crimes in their presence. In March 1916, for instance, L.S. Rogov, a drunken 43-year-old peasant from Tomsk region, entered the local office. He did not remove his hat, lit a cigarette and started castigating the local clerk. The clerk immediately demanded he remove the hat and stop smoking in an official public place, pointing to the tsar’s portrait hanging on the wall. Rogov, with his hat still on, had said: ‘The portrait of the tsar does not mean anything to me, I do not salute any portraits and have a right to have my hat on and smoke.’ In understanding this case, the question is whether the clerk was genuinely insulted by the peasant’s behaviour; whether he wanted to avoid an unpleasant conversation,

190 Boris Kolonitsky or whether he was deliberately taking revengeful action against this particular peasant?24 At times, such conflicts with the local officials were initiated by someone sober who reasoned that their behaviour underlined their equality with the tsar. One Saratov peasant, upon refusal to remove his hat in the volost’ office, insisted: ‘I am my own tsar.’25 In addition, it cannot always be claimed that cases were deliberately provoked, since rural officials were obliged to report these cases even if they were reluctant to do so. On 14 February 1914, the village of Truevskaia Maza (Iurlov volost’, Vol’sk district, Saratov region) had its local meeting (skhod). The participants conducted a heated dispute over spending by the local elder who spent 3 rubles and 82 kopeks to buy sweets for the local children to celebrate three-hundredth anniversary of the House of Romanov. One 58-year-old peasant, V.F. Podgornov, was not satisfied with such usage of money: ‘Some [cunt] got crowned and we pay.’ He was targeting both figures of authority – the elder and the tsar. However, a satisfactory report was not received by the authorities from the local official witnesses, who had clearly tried to bury it because of the implicit reproach to the elder. However, in the end it had to be formally reported because another drunken peasant, V.S. Karakozov, had informed the village constable about the insult when both had attended a meeting of the local credit society. In those circumstances the village elder had to act immediately, otherwise he was liable to a charge of not reporting a serious crime. He made an official statement the day after the credit society meeting. However, because of the delay in filing the report, the district police arrested the elder, detaining him for seven days.26 By contrast, peasants sometimes pressurised the rural administration, accusing officials of insulting the royal family and the emperor. In one district of Ekaterinoslav region, a 56-year-old volost’ sergeant beat up a local peasant in the local drinking house for non-payment of the local tax. He then ordered the village elder to take the peasant to the local jail in the volost’ office. Another peasant intervened, arguing that the sergeant had exceeded his powers in beating him up. In response, the sergeant (described as sober) started swearing and threatened the protesting peasant with expulsion from the village. The peasant retorted that without proper judicial proceedings, this sentence could be enacted only by the government and the tsar. The tough sergeant ended this legal discussion with the following words: ‘F**k you with your government and your tsar; I will do whatever I want with you.’ The peasants immediately reported the sergeant, who was promptly charged with insulting the tsar.27

Lese-majesty and dispute resolution Conflicts between peasants and rural authorities resembled those in small urban enterprises. Workers could consciously provoke their employers to insult the emperor in order to settle a score with them, as happened in January 1916 in Kazan. The 39-year-old Polish female owner of a washhouse ended up being charged in this way. The background was that she had hit her employee, who

Insulting the Russian royal family 191 warned she would complain to the authorities that the infuriated mistress had insulted the tsar together with the government. During the investigation the owner said that her employees had maligned her out of malice.28 Interestingly, cases of provocation by property holders have not been discovered, probably because they used other methods of exerting control and imposing discipline. Nevertheless, there were other incidents of cases involving power relations that carried an ideological meaning. In this way, property or everyday conflicts were elevated to the level of political confrontation, portrayed in terms of loyal subjects struggling with anti-monarchists. The peasant illegally cutting wood was reported by over-zealous foresters; similarly, prisoners were reported by officious prison warders; soldier’s wives complained about fathers-in-law claiming their pensions; clients of brothels accused prostitutes. Even parents of poor students reported demanding teachers, accusing them of insulting the emperor.29 The second group of conflicts included ‘horizontal’ disputes between neighbours, relatives or peasants from neighbouring villages. These conflicts occurred around about property, crop damage, breaking land boundaries or the cutting of wood. In 1910, M.I. Maiorov, a peasant from Simbirsk village, came to his neighbour and started blaming him for enclosing his allotment. He finally grabbed a spade and attacked him shouting: ‘You fixed your land by Satan’s law. You serve the devil, not the tsar.’ After hitting him several times he ran away. The victim decided that it was more beneficial to accuse his offender of a state crime rather than an ordinary criminal offence and formulated his report accordingly. Maiorov was thereafter detained for seven days.30 These charges could also be used in revenge cases against cheating fiancées and disobedient daughters-in-law. The same method was used: an angry opponent was provoked to insult the tsar and then immediately reported, paralysing all alternative courses of action. Property disputes, family quarrels and everyday conflicts were thus politicised as the far remote emperor became a symbolic ally of one of the warring parties. The case of the three brothers Zhirokhovs, peasants from Volodga region, is illuminating. A forester was searching the property of one brother and found stolen wood. In the resultant outcry, the brothers started swearing. One peasant commented that they could be prosecuted for such behaviour and the infuriated brothers responded by saying: ‘F**k the law.’ Witnesses then added that they had warned the brothers that they could not say this because the law was crowned by the tsar’s crown (it is interesting that the authority of the law was reinforced here through the sacred monarchical symbol). The Zhirokhovs persisted in their insults, saying: ‘F**k your law, the Crown and the tsar.’ The wife of one brother lifted her skirt and, ‘slapping her privy parts’, shouted: ‘Here is your law, the Crown and the tsar, they are all here.’31 In this case the criminal offence was politicised by the enemies of the accused, who wanted them to be charged with a more serious offence than simple theft. These were common provocation tactics in such situations. Thus, the word ‘scum’ was often used in the heat of the dispute and the offended person could

192 Boris Kolonitsky answer with a well-known proverb: ‘I am not scum, I am a tsar’s man’ (there are several cases when these particular words are recorded). The person targeted could thus argue that he personally ‘served the tsar’ or that ‘his sons are in emperor’s service’ and so on. After that, the angry opponent usually insulted the tsar, enabling a report of lese-majesty to be made. In May 1915, one 42-year-old peasant from Tomsk region quarrelled with his female neighbour. In answer to his charges, she said: ‘Although she might have been scum, she was the tsar’s (wo)man, as her sons had all left for the war and were in both the tsar’s and God’s service.’ The peasant had shouted back: ‘They left to serve the devil.’ She reported him and he was charged.32 Neighbours regularly used the imperial symbols in everyday disputes. In September 1915, a 30-year-old peasant from Samara region castigated his neighbour. The latter pulled out the book with the tsar’s portrait and solemnly asked his offender not to swear in front of it. The infuriated peasant immediately redirected his castigations to the portrait, an outcome probably planned by his opponent as he promptly reported the defamer.33

Ethnic dimensions Property disputes often intertwined with ethnic conflicts. Russian peasants could sometimes use such a complaint in the cases of quarrels with their nonRussian neighbours (inorodtsy) by provoking them to insult the Russian tsar. The evidence comes from disputes between Russian peasants with Bashkirs and Kalmyks over mowing and pasture rights.34 In one case Russian peasants from Nagaevo village in Butalovo volost’ (Tobol’sk region) pastured their horses on the Tatar-owned field. During the dispute, F. Nogaev, a Russian peasant, warned H. Abdulov, a 23-year-old Tatar: ‘If you do not stop swearing, I will send a telegram to the tsar.’ He was clearly intentionally provoking his opponent, given that he was scarcely in a position to go to the post office to communicate directly with the tsar. His plan worked – the furious Abdulov shouted in the presence of many witnesses: ‘I will f**k you together with your tsar.’35 He was reported immediately by the Russian peasants. However, this weapon could be used by non-Russians who (at least for the period of the conflict) depicted themselves as loyal subjects of the Russian emperor in order to accuse Slav defamers of the tsar. One day, a resident of Chernigov region appeared in the Maikop section local police office and demanded that those present start a search for his stolen sheepskin jacket. The sergeant suggested he remove his hat in the office since the tsar’s portrait was on the wall. In the resulting argument, the Chernigov resident announced he was nobody’s servant and insulted the emperor. The sergeant reported him to the higher authorities and he was properly charged (and the sheepskin jacket remained undiscovered).36 It was not only Russians who used the tactic of reporting insults to the royal family to aid conflict resolution. Poles,37 as well as those from other nations (for example, Kirgizs), regularly reported their fellow-countrymen. Sometimes, such reports were the result of disputes

Insulting the Russian royal family 193 between merchants and customers, meaning cases involving insults to the tsar were recorded in local village shops and markets. It is a characteristic of such conflicts that it is difficult to assess the genuineness of the complaints. Complainants were clearly positioning themselves as faithful subjects, but at the same time were trying to extract personal profit from the scenario. Their monarchism tended to be pragmatic and functional, whether it was genuine or assumed. The tsar was sometimes insulted for religious reasons. The emperor continued to be the target of accusations from ‘old-believers’ or religious sects, including being insulted as a ‘heretic’ or an ‘antichrist’. In January 1915, V.Ia. Riabinin, a labourer from the luchinkovtsy (lighters) sect, said during a dispute with other workers, that ‘all orthodox believers, including the tsar, are heretics’. He claimed that his fellow-believers did not recognise any emperor and did not serve him, trying to persuade the others to ‘convert into our faith, then you won’t have to serve your tsar’. During the consequent interrogation, Riabinin insisted that he considered that everyone (including the tsar) who practiced orthodoxy differently from Nikon’s way was a heretic.38 Sometimes, peasants held the tsar and his family personally to blame for government failures and made this plain when expressing their dissatisfaction with government actions, such as levying taxes and requisitions, the deprivation of welfare benefits or ordering mobilisation. After 1914, this expanded to include blame for the unnecessary death of their relatives in the war. In 1915, refugees from Vil’na (Vilnius) region were deprived of their rations as a punishment for their refusal to work. One refugee said: ‘When we were driven from there (Vil’na), the tsar promised to feed us, but he deceived us: we do not get anything and will starve to death.’39 This was enough to initiate a charge against this individual.

Spaces and places in lese-majesty The spaces and places used by the defamers are quite significant. The crime often occurred in the local village office because that was where the peasants received unpleasant news: the notification of death or injury of loved ones, of conscription, or information about new taxes. The tsar’s portrait, visibly on the wall, immediately allowed them to identify the main person culpable for that unpleasant news. At the same time, the public location meant that those policing such situations – the local representatives of state authority – had to inform the higher authorities of any crimes committed. However, many other ‘illicit’ conversations which took place in relatively safe spaces – in the house, on the street, in the field and even in the woods – got reported as well. There were also situations when the peasants condemned state policies, even though they were not directly affected by them. These insults might have been the result of a heated conversation about the war, where the tsar and other royal family members were being blamed for starting the war, for leaving the country ill-prepared for the war and for particularly bad strategic decisions.

194 Boris Kolonitsky These conversations were often prompted by the process of reading newspapers and broadsheets aloud. Such insults could be called ‘patriotic’: the speaker identified himself with ‘Russia’ and condemned the tsar or some other royal for the harm they had inflicted on Russia. An increase in the level of insult cases indicates an increase in conflict and social tension within levels of rural society and that people tried to resolve such tensions by using these charges. This increase in ‘simple’ everyday conflicts intentionally politicised by their participants had important political significance, alongside the importance of the specific words used to insult the tsar or the royal family. There were quite a few cases when members of the so-called ‘rural intelligentsia’ – educated peasants, who assisted in the composition of official documents, and who gave legal advice to their neighbours, or ‘unofficial ‘ attorneys, who represented other peasants (and were distrusted by the authorities) – were charged as well. However, the main importance of these cases as a historical source lies in the ability they confer to hear the voice of illiterate peasants, often otherwise hidden from historians, even though it must be accepted that their real words were quite often edited and sometimes altered by reporters, investigators, police or justice officials. In some cases we deal with false reports as police authorities noted that the charge of lese-majesty was often used for revenge in personal matters. With the outbreak of war in 1914, the numbers of false reports increased and a special ordinance reminded gendarmes that they should be cautious, checking all the accusations and their details carefully.40 Thus, in August 1915, in Bobylevka village, in Balashov, Saratov district, some villagers accused the shopkeeper, N.S. Tselikov, of saying: ‘Our tsar is weak and the government consists mostly of Germans who are ready to sell Russia at any time to the enemy.’ Another witness reported that Tselikov claimed that the tsar was ‘weak and mad’ and that the dowager empress Maria Fedorovna lived with Count Frederiks and ‘other Germans’ and that the tsarevich was ‘illegitimate’. However, other villagers interrogated during the investigation insisted that Tselikov was a true patriot and monarchist, and that he was being intentionally slandered by his enemies – the local priest and the clerk of the local rural office. The latter two were members of the committee in charge of distributing benefits to the soldiers’ wives and had abused their position, behaving ‘improperly’ towards these women. The accused in this case had been indignant at their behaviour and publicly denounced them several times, occasioning the report.41 However, in many cases the criminal incident did occur and sometimes, during interrogation, the accused confessed and expressed repentance. Sometimes, physical evidence could support the charge (for example, a torn royal portrait or one with the tsar’s eyes poked out). It must be added that making a false report was also a serious crime, much more seriously regarded than failing to report, a reality probably restraining the flow of false reports.42 The existence of such slanderous cases is also important for the researcher. Those composing false insults probably thought that the police and judges would believe that a specific slander could come from such accused persons.

Insulting the Russian royal family 195 As A.S. Lavrov, who studied false reports and slanders of the eighteenth century, has noted, such false reports needed to be credible to function.43 Possibly, conversations that constituted the false accusations were concocted from disparate sources, with accusers attributing their own words to the accused. Even such false reports contain important information about public opinion, about the circulation of certain hearsay and perspectives on certain images of power.

The impact of war on lese-majesty After the beginning of the war in 1914, Russian criminologists predicted a decrease in the crime of lese-majesty. They hoped that general patriotic enthusiasm, the conscription to the army of potential criminals and, finally, a significant limitation upon the availability of alcohol, would reduce its incidence. This trend was probably quite visible at the beginning of the war when the mass media registered the general decrease in crime.44 Thus, in July 1914 there were 41 cases of lese-majesty and 44 in August; 25 in September, 12 in October and 25 in November. These crimes were assumed to be committed by drunks (at least 12 of the cases in July). However, only one was committed by a drunk in October. This low level can be attributed to the situation at the beginning of the war, when these crimes were not consistently being registered. However, the reality eventually confounded these predictions as the number of cases of lese-majesty increased, including cases of drunken crimes. Peasants obviously found opportunities to get drunk, despite strict control over alcohol sales. Russian newspapers were full of articles entitled ‘The struggle against alcohol’ or ‘Of drunken affairs’. In the cities, people paid triple prices for dangerous alcohol surrogates, sometimes with exotic names (e.g. ‘united madeira’) while Russian villages experimented with illicit alcohol manufacture. Peasants continued their traditional way of life in many ways, which is also clear from cases of lese-majesty during the period. Thus, a 55-year-old peasant from Viatka region was charged with saying: ‘Now our Nikol’chik closed down the pubs and prohibited the making of home-wine, but we have made home brew and won’t submit to Nikol’chik.’45 In January 1915, at least 9 out of 40 registered lese-majesty crimes were committed by drunken defendants. Russian peasants also encountered new reasons to insult royal family members, which was apparent given that 21 out of 41 registered cases of lesemajesty in 1914 were connected with war circumstances. The ethnic and social composition of the accused was changing as well: the ‘Russian’ and ‘rural’ population was now mixing with the representatives of other nations (such as Russian Germans and Jews) and other social groups, which increased other types of conflict, including inter-ethnic disputes. Other conflicts connected with the wartime context were reflected in reports of lese-majesty, conflicts between peasants and refugees, peasants and prisoners-of-war, mostly Slavic soldiers from Austria-Hungary and Germany working in rural areas. An increase in

196 Boris Kolonitsky such cases became an indicator of the level of public discontent and the police responded accordingly. The gendarme report for Riazan’ region in October 1915 pointed to an increase in the crime of lese-majesty. In Samara region, the number of accused increased from 19 to 105 between 1914 and 1916, although not all incidents were registered. A summary report from the Moscow Security Department dated 29 February 1916 declared: ‘We have to state with regret that if we reacted to all the cases of insolent and blunt defaming of the majesty, the trials for article 103 could have reached unprecedented numbers. . . . This demonstrates the mood of the lower classes and bourgeoisie.’46 However, the famous Russian criminologist E.N. Tarnovskii noted a decrease in political crimes during the war, which differed from the general picture of criminality. If we take the general crime picture for 1911 as 100 per cent, then there was an increase before the war (105 and 112 per cent in 1912 and 1913), but after the beginning of the war there was a decrease (102 and 97 per cent in 1914 and 1915). However, in 1916 the amount of crime increased to 128 per cent. Nonetheless, the number of political crimes during the war fell to 41 per cent in 1916.47 If we merely look at criminal statistics, nothing appears to predict the revolution of 1917. In February 1916 a new ordinance in connection with the crime of lesemajesty was issued. The chairs of the court houses (sudebnaia palata) and county courts received a secret directive signed by A.A. Khvostov, the Minister of Justice. The directive explained that after the minister’s report on 10 February, the tsar had made him responsible for all the cases of lesemajesty, with the powers of possible pardon for those who committed this crime out of ignorance, folly, drunkenness or influenced by the extraordinary circumstances of wartime, which were grounds for leniency. The minister required all the chairs to submit lists of cases under investigation and the completed cases where the sentence had not been enacted.48 In the following months, ministry officials looked through the hundreds of cases received from the local courts and, in the majority of cases, the accused were acquitted. The registration and investigation procedure in lese- majesty crimes changed and the authorities rarely reacted to insignificant insults against the royal family.

Conclusion The crime of lese-majesty remains a valuable source for the study of public opinion before the Russian Revolution of 1917. However, the official criminal statistics do not give an accurate picture of some criminal dynamics. Reporting was necessary, even if false, for a crime to be registered. However, attitudes to reporting varied in different parts of the country and over different time periods. This is why the statistics reflect specific types of legal culture and a willingness to proceed – thus some regions have a number of such reports while others do not. However, depending on the general and local political situation, the personality of a perpetrator and circumstances of the act, the authorities could react severely against a petty crime while turning a blind eye to serious

Insulting the Russian royal family 197 offences. These crimes were also lost to the legal system in the turmoil and altered priorities created by mobilisation for war.49

Notes 1 Ugolovnoe ulozhenie, St Petersburg: Gos. Kantseliaria, 1903, pp.35–7. 2 V.B. Bezgin, ‘“Tsar’-batiushka” i ‘narod-bogonosets’ (Krest’ianskii monarkhizm kontsa XIX – nachala XX vv.)’, Trudy kafedry istorii i filosofii Tambovskogo gosudarstvennogo tekhnicheskogo universiteta, St Petersburg: Nestor, 2004, vol. 2, pp.30–1. 3 E.A. Kolotil’shschikova, ‘Dela ob oskorblenii ego imperatorskogo velichestva i lits tsarstvuiuschego doma kak istochnik izucheniia krest’ianskogo soznaniia v kontse XIX – nachale XX v. (Po materialam Tvrskoi gubernii)’, Istoricheskaia pamiat’ i sotsial’naia stratifikatsiia. Sotsiokul’turnyi aspect (Materialy XVII Mezhdunarodnoi nauchnoi konferentsii, St Petersburg, 16–17 maia 2005 g.), 2 vols, St Petersburg: Nestor, 2005, 1, p.143. 4 M.A. Alekseeva, Novgorodskoe gubernskoe zhandarmskoe upravlenie (1867), unpublished Ph.D. thesis, Velikii Novgorod, 2007, p.19. 5 E.N. Tarnovskii, ‘Statisticheskie svedeniia ob osuzhdennykh za gosudarstvennye prestupleniia v 1905–1912 gg.’, Zhurnal ministerstva iustitsii, 10, 1915, pp.43, 47, 63–4. The nationality of the convicts of the ‘dominant nation’ was often omitted, only rarely being specified as ‘Russian’, ‘Ukrainian’ or ‘Belarusian’. However, when the other nationalities were involved, the ethnic identity was always listed. 6 M. Paleolog, Dnevnik posla, Moscow: Zakharov, 2003, p.163. 7 Rossiiskii gosudarstvennyi istoricheskii arkhiv (RGIA), f. 1405, op. 521, d. 476, ll. 310ob-311, 321ob., 387. 8 Gosudarstvennyi arkhiv Saratovskoi oblasti (GASO), f. 55, op.1, d. 458, l. 21ob. 9 GASO, f. 1, op.1, d. 8762, l. 43. This reference has been provided by N.A. Dunaeva. 10 The grand duke Nikolai Nikolaevitch (1856–1929) was the uncle of Nikolai II, the chief commander of the army during the First World War, and was very unpopular due to his conduct during the Revolution of 1905 as well as to Russia’s failures during the First World War. 11 GASO, f. 1, op.1, d. 8762, l. 27. The reference is provided by N.A. Dunaeva. 12 RGIA, f. 1405, op.521, d. 476, l. 11ob. 13 RGIA, f. 1405, op.521, d. 476, l. 34. The other variant of this song reads: ‘I am going from Siberia to Russia, [f . . . cking] the tsar and his mother Maria’ (ibid., l. 514). This song mentioning the emperor’s mother is a possible reworking of some blasphemous verse. 14 RGIA, f. 1405, op. 521, d. 476, ll. 286ob–287. A similar chastushka appeared during the First World War, being popular in Luga district, Petrograd region, in September 1915: ‘We do not need any God or tsar, we will kill governors and go under the Germans’: GARF, f. 102, op. 265, d. 1032, l. 1421–1421ob. 15 RGIA, f. 1405, op. 521, d. 476, l. 317ob. 16 RGIA, a. 1405, op. 521, d. 476, ll. 371on–372 (a brief account of the case, composed for the Ministry of Justice); Central State Historical Archive, Ukraine, Kiev [TsGIAUK], f. 348, op. 1, d. 697, ll. 5–5ob, 6, 15, 30, 31, 36, 60, 70, 80, 81, 85, 92, 96, 113 (investigation materials). 17 RGIA, f. 1405, op. 521, d. 476, l. 335ob. 18 GASO, f. 55, op. 1, d. 458, l.36–37ob; A.V. Posadskii, Krest’ianstvo vo vseobschei mobilizatsii armii I flota 1914 goda (Na materialakh Saratovskoi gubernii), Smolensk: Izd-vo SGU, 2002, p.106. 19 RGIA, f. 1405, op. 521, d. 476, l. 157. 20 RGIA, f. 1405. op. 521, d. 476, ll. 283–283ob, 345. 21 RGIA, f. 1405, op. 530, d. 1035, l. 13ob.

198 Boris Kolonitsky 22 23 24 25 26 27 28 29 30 31 32

33 34 35 36 37 38

39 40 41 42

43 44 45 46 47 48 49

The local police officer elected from the peasantry. GASO, f. 55, op. 1, d. 458, l. 27–31ob. RGIA, f. 1405, op. 521, d. 476, l. 349ob. GASO, f. 53, op. 1 (1917), d. 12, l. 248. GASO, f. 55, op. 1, d. 458, ll. 19–22. RGIA, f. 1405, op. 521, d. 476, l. 392. RGIA, f. 1405, op.521, d. 476, l. 327. RGIA, f. 1405, op. 521, d. 476, l. 16. Gosudarstvennyi arkhiv Ul’ianovskoi oblasti [GAUO], f. 1, op. 92, d. 13, l. 3. Provided by N.A. Dunaeva. RGIA, f. 1405, op. 521, d. 476, ll. 366–7. RGIA, f. 1405, op. 521, d. 476, l. 166. Such provocations were used in Soviet times as well. In L’vov region discontented customers told the Hungarian shopping assistant that she’d better learn the ‘language of Lenin’. She replied that she did not give a damn about the language and the leader. She was reported. See O.V. Edel’man (ed.), Nadzornye proizvodstva Prokuratury SSSR po delam ob antisovetskoi agitatsii i propaganda: Annotirovannyi karalog, mart 1953–1991, Moscow: Mezhdunarodnyi fond ‘Demokratiia’, 1999, p.22. RGIA, f. 1405, op. 521, d. 476, l. 141. RGIA, f. 1405, op. 521, d. 476, l. 323ob–324. RGIA, f. 1405, op. 530, d. 1035, l. 45ob; Gosudarstvennyi arkhiv Rossiiskoi Federatsii (GARF), f. 124, op. 55, d. 114, ll. 1–1ob. RGIA, f. 1405, op. 521, d. 476, l. 245. RGIA, f. 1405, op. 521, d. 476, l. 322ob–323. Patriarch Nikon (1605–81), the patriarch of Muscovy in 1652–66, who was accused of schism, convicted and sentenced to the imprisonment for life. See RGIA, f. 1405, op. 521, d. 476, ll. 399–399ob. Riabinin was sentenced to four months’ imprisonment in the fortress. GASO, f. 53, op. 1 (1916), d. 59. V.F. Dzhunkovskii, Vospominaniia, 2 vols, Moscow: Izd-vo im. Sabashnikowkh, 1997, 2, p. 401. GASO, f. 53, op. 1, d. 12, ll. 297–8. In 1913 there were 14,291 cases of perjury and false accusations while no cases of non-reporting. See Obschii obzor statisticheskikh svedenii o deiatel’nosti sudebnykh ustanovlenii za 1913 god, Moscow: Izd-e 1-go Departamenta Ministerstva Iustitsii po 3-mu deloproizvodstvu Statisticheskogo otdeleniia, 1915, pp.20, 22. A.S. Lavrov, Koldovstvo i religiia v Rossii, 1700–1740, Moscow: Drevlekhranilishsche, 2000, pp.32–3. See ‘Padenie prestupnosti’, Novoe vremia, 25 August 1914. RGIA, f. 1405, op. 521, d. 476, ll. 394ob–395. Nikol’chik is a disrespectful shortening of Nikolai. RGIA, f. 1405, op. 521, d. 476; O.A. Sukhova, Desiat’ mifov krest’ianskogo soznania, Moscow: ROSSPEN, 2008, p.415; B.B. Grave, Burzhuaziia nakanune Fevral’skoi revolutsii, Moscow: Gosud. Izd-vo, 1927, p.77. E.N. Tarnovskii, ‘Voina i dvizhenie prestupnosti v 1911–1916 gg.’, in Sbornik statei po proletarskoi revolutsii i pravu, 2 vols, Moscow: Narkom justitsii, 1918, 1, pp.100, 104, 105. TsGIAUK, f. 1072, op. 4, d. 4, l. 8. This was how General V.F. Dzhunkovskii, the Deputy Minister of Internal Affairs, remembered the situation when conscripts killed a police officer. Judging from his memoirs he, being a general of gendarmes and one of the leaders of the ministry in charge of the state security, did not undertake any steps to find a murderer. Well, how would the hundreds of the present soldiers react on his actions if they glowered at the general with ‘savage faces’? See Dzunkovskii, Vospominania, 2, pp.376–7.

13 Crime and culpability in the community, the newspapers and the courts The case of the feuding society of Crete (Greece) Aris Tsantiropoulos This chapter considers the variety of discourses about crime in a feuding society: Vorizia, a mountain community on the Greek island of Crete. It provides a case study of a chain of retaliatory crimes committed in a period of less than half an hour in 1955, where local people were involved as both perpetrators and victims. The materials used are derived from court archives and newspapers, except where it is research data gained from fieldwork. The main purpose is an investigation of factors affecting the production of different sets of discourses on crime in a feuding society. From this perspective, this chapter is a contribution to analysing the ways in which revenge (sometimes dubbed honour) crimes and the modern state legal system of inflicting penalties on individuals co-exist. At a methodological level, the chapter discusses the relative contributions and limitations of different categories of sources to the investigation of a significant social phenomenon.

Events in a Cretan village On the night of 26 August 1955, in a village of about 450 people in central Crete, during the major feast dedicated to the local patron saint, St Fanourios, one villager, Manousos Dalas,1 drew his knife and killed his neighbour, Yannis Avgeris, because Avgeris had made a number of accusations against Dalas. Immediately after the murder, many shots were fired in different parts of the village, resulting in two more killings: one, a sibling of Dalas and the other, a man related by marriage, Mihalis Thalassis. Immediately after, Kostas Thalassis, a relation of Mihalis, flung a hand grenade into the Avgeris house. This was where relatives had brought the corpse and where many of them still were. The explosion caused the deaths of three people and the wounding of fourteen. An escalation of this local ‘civil war’ was averted after the intervention of the police and the army. The subsequent court proceedings did not take place in Crete, as the law dictated, but in Athens, under rigorous protective measures for the safety of the litigants. This juridical anomaly, ordered by the courts, constituted an attempt

200 Aris Tsantiropoulos to prevent any continuation through retaliatory crimes in the courtroom.2 During the fifteen days of the court proceedings, many villagers were called to testify about the ‘facts’ of the event, and the Athenian newspapers commented at length on the respective court performances of the men and women of this Cretan village. Within the social memory of the local community, these crimes continue to be experienced as a very current traumatic event. That these crimes occurred in the context of a village in Crete, acknowledged as a ‘feuding’ society,3 was the main factor in the creation of a collective trauma and for its transmission to ensuing generations, into the present.4 In contemporary local accounts, these facts are described as a series of revenge crimes that followed first killing consequentially. However, there are many divergences in the linkages between the second and third crimes – namely, in terms of the interval of time between the first crime and the flinging of the hand grenade. Specifically, Manousos Dalas’s crime against Yannis Avgeris was committed because he considered accusations made by his victim, who held the position of forester to the village, that he (Dalas) was guilty of illegal wood-cutting to be an insult to his honour, made to his face. With the second crime – the killing of Sifis Dalas, a relative of Manousos – initially the accused individuals were the husband of Yannis Avgeris’ daughter and the husband’s brother. The same men were initially thought to be the perpetrators of a third crime, where the victim was related to the man who would fling the hand grenade shortly afterwards. A year later, in the courtroom, the witnesses were to name different men as the perpetrators. Also, to this day the local community provides two different narratives of these two crimes. Then, when recounting the crimes committed by Kostas Thalassis, the people claimed: Just after the second crime [the killing of Sifis Dalas], the wife of Kostas Thalassis, who was an aunt of the victim, left the place where the crime had been committed and went rapidly to her house and said to her husband: ‘Are you still sitting idly here? Get up and go to do something rapidly, because they have killed our brother-in-law.’ He responded by asking: ‘Where are my knife and my pistol?’ His wife replied: ‘Why the knife and the pistol? Go to the cellar and fetch a hand grenade and go the Avgeris house where all his relatives have assembled to mourn over his corpse and kill as many as possible.’ In his disturbed state of mind, Kostas Thalassis followed this order.5 Analysing the local discourses about these crimes, it is possible to ascertain that there was more to the incident than a conflict between two groups of siblings. They additionally involved (or accusations are made to that effect) people with ties of affinity to the groups, as well as other co-villagers. Essentially, the whole community was involved in this blood feud, to some extent. Local people claim that the first killing worked as catalyst in the emergence of a situation where previous quarrels or tensions between families

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erupted into open hostility. One of the versions narrating the third crime, the killing of Mihalis Thalassis, confirms this perspective. According to this version, just after the second crime, another Dalas (Manolis) was already involved in a blood feud with the Thalassis family, over a previous killing of another Dalas by a member of the Thalassis family. Attempts made by villagers to bring about a reconciliation had failed. Leaving the first crime scene, Manolis already had in mind using this as an opportunity to take revenge for his own feud. When he then encountered Mihalis Thalassis and the latter started to hurl insults at him and drew his knife, Manolis drew his pistol (acquired during the German occupation) and shot him with three bullets. However, there are also at least two other versions, providing different nuances to the actions and motives of the perpetrators. One is that Mihalis Thalassis was killed by the sons-in-law of Avgeris, the first victim, because he was the brother-in-law of Manousos. The other version is that this crime was committed by Manolis, but the reasoning in this version is that, due to the existing enmity between Manolis and Mikhalis, the latter had been the one to try to seize the opportunity to avenge an insult against him, as Manolis’s son had previously insulted the honour of Mikhalis’s daughter. Manolis had prevented this by killing Thalassis first. Within the courtroom, many of the witnesses rejected their own earlier evidence or contradicted themselves in their testimony to the state prosecutor, insisting that the perpetrators were not the persons who had initially been accused. These contradictions, ambiguities and omissions in the local accounts of the incident were commented on by the Athenian newspapers with phrases such as ‘everyone in this Cretan village just tells lies in the courtroom’; ‘the villagers systematically and collectively are striving to mislead the judges and the jurors’; ‘the truth will never come out from this court case’. They also defined the testimonies as ‘perjuries’.6 However, instead of such simplistic labelling, a meaningful interpretation is possible if we concentrate on the precise local comprehensions of blood feud. Blood feud is conceived of as an extreme action that immediately transcends individual responsibilities and transforms it into a social conflict between two kinship groups, connoting a special formation of social bond between the IIdentity (self-consciousness) and the We-Identity (groupings, society). This bond is defined by a restricted individuation or, in other words, by a high degree of emotional adherence of I to a specific We – that is, mostly a group of people interconnected by kin-ties. Also, because of these specific significances, a duty to commit a retaliatory act is transmitted to succeeding generations and the conflict is drawn out over time and succeeding generations are involved. In local discourses discussing the motives involved in revenge crime, this form of social bond has the position of a ‘nodal point’ – that is, ‘an ultimate fixity of meaning . . . an attempt to dominate the field of discursivity, to arrest the flow of differences, to construct a centre’.7 Fifty-five years after the death of his father, the son of the first victim claimed:

202 Aris Tsantiropoulos One has to take revenge against the kinsfolk of one’s father’s murderer. Unfortunately, I had no close male siblings to support me in committing the crime. When my father was murdered I was a child, my relatives pressurised me to get married very young and now it is difficult to take the decision to carry out revenge because I have male children. My kin should not have pressurised me to get married, and I blame them because they prevented me from taking avenging action.8 In these pronouncements about committing a crime, which define the potential crime not as a horrific act but as a duty dictated by kin ties, one can also detect a hierarchy of the forms of social bonds. The social bond to one’s descendants is stronger than the creation of a social bond of affinity for the purpose of procreation. Taking into account that each person’s bonds, for the purpose of his interests, are differentiating over time, the reality is that they are dependent on the relationships he establishes with other persons or groups (relations of affinity, cooperation for the achievement of economical and political affairs, etc.). The contradictions and omissions in these narratives are not accidental. Instead, it is in the occurrence of these ‘floating signifiers’ and in their definitions of these terms that the different positions in the social network (as well as the processes of changes in it) are reflected, making it impossible to articulate the entirety of a discursive chain.9 Another point accentuated in local narratives is the short time-frame and the extreme intensity of the events: ‘everything happened in a few minutes. The rain of bullets was the same as when someone cups soil in his hands and throws it.’10 This impression is emphasised by the tone of the court testimonies that journalists transcribed in the Athenian newspapers: Suddenly, one of the witnesses says, ‘While I was in my coffee house I heard someone crying: “Help, they’re killing me.” Immediately, I came out of my coffee house and I saw Yannis Avgeris trying to stand up. The blood was spurting from his shoulder like a fountain. Just as I caught him, he died in my arms.’ At the same time, all at once, from ten different sides of the village, sounds of gunshots were heard! [The journalist recording this commented] that although ‘the names of the victim and the perpetrators were not yet known to the villagers, they grabbed their guns and began to shoot one another. Who was shooting? Against who? Nobody knows; it was just random.’11 The contemporary local narratives describing this ‘massive frenzy of violence’, as Athenian newspapers characterised the events, are structured on two ‘nodal points’.12 The first relates to what can be described as the mimetic character of blood-feud violence. There is, in the violence, a desire that is subjected to mimesis as a fundamental thing, defining the totality of human

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behaviour. This desire arises through the imitation of another’s desire and, ultimately, the origins of desire are neither biological nor instinctual, nor simply a response to some desirable object. In the blood feud, because the conflict is drawn out over time and succeeding generations are involved, the original object of hostility disappears and mimetic rivalry degenerates into conflict for the sake of conflict. Each rival becomes a mirror image of the other, returning tit-for-tat endlessly, as ‘mimetic doubles’.13 In this case, the local discourses have been structured as mimetic crimes. Almost all of them (the exception is the third crime) were committed in a minimal interval. Taking into account the divergences in identifying the perpetrators, one could add that this mimetic violence extended to the whole community. However, a concentration solely on the concept of ‘mimetic violence’ is insufficient because it overlooks the issue of the divergences in identifying the perpetrators and also the ‘frenzy’ of violence involved. In psychoanalytic terms, a collective passage à l’acte of extreme violence was sparked off just after the crime against Yannis Avgeris. The argument here is that historical contextualisation, based on archival research, is a prerequisite for the interpretation of such a collective passage à l’acte. Neither the ‘evil hour’ (kakia ora), as the local people allege, nor the established formulas of blood feud per se in that society constitute sufficient explanation. From this perspective, the events of 1955 that this local society experienced can be a paradigmatic case for historicising blood feuds, essentially for researching interconnections between this phenomenon and history. It is not coincidental that 1955, the year of these crimes, was ten years after the end of German occupation of Greece (1941–44) and only six years after 1949 and the formal cessation of the Civil War (1945–49). Specifically, research into written sources and testimonies (newspapers, historical and folklore, etc.) pinpoints significant interconnections between the people involved in the crimes of 1955 and the two important historical facts mentioned above. Dalas, the perpetrator of the first crime, had been an important person in a partisan group that had fought against the Germans and, after the withdrawal of the German army, against the Communists. Relatives of those other men involved in the crimes had made up the core of the first group of partisans, who had had a base in the mountain area of the village and had fought against the Germans immediately after the capture of Crete. In 1943, a battalion of the German army had been defeated by this partisan group in a battle just outside the village. The Germans had avenged their defeat by executing some of the men of the village, driving the rest of the population outside it and blowing up the village itself. This battle (which had killed a close relative of the first victim, Yannis Avgeris, and a man who had been an eminent person and the elected head of the village) continues to be celebrated as an act of resistance. But as part of this memory, there is the belief that this battle, with its tragic consequences for the whole community, had happened because a fellow villager had betrayed the position of the partisans to the Germans. This belief had certainly initiated an act of vengeance just after the end of the war.

204 Aris Tsantiropoulos Subsequently, one of the most significant battles of the civil war had taken place in the wider mountain area around the village, also providing the potential for hostile memories.14 A detailed analysis of the interactions between major historical events and subsequent blood feuds, as a cultural schema where the local people receive and experience historical events and organise consequent actions, is not the purpose of this chapter.15 True, it could be argued that the specific timings and historical echoes worked as a ‘structure of conjuncture’.16 It has been argued that such a structure involves a situational set of relations, crystallised from the operative cultural categories and actors’ interests [where] the notion of action . . . is subject to the double structural determination of intentions grounded in a cultural scheme and the unintended consequences arising from recuperation in other projects and schemes.17 However, challenging that, in terms of the local discourse, the killing of a person as a historical incident that happened once in specific circumstances of opposition or enmity is overlapped by conceptions of its integration into a personal or family history. From this perspective, a past crime becomes a traumatic fact affecting present reality.18 One woman, aged fifteen when the crimes took place and who was blinded in one eye by grenade fragments because, as a relative of the first victim, she was in his house mourning his death, commented: Many men had proposed marriage to me but all of them were widowers and much older than me. I did not want to get married to a man who had been married before. But the young men did not want to get married to me because I was blinded in one eye and they feared the possibility of blindness in the other eye too. Finally, I got married to a man older than me who was also a widower. He had had four children with his previous wife. Very soon I was pregnant, but my husband died one day before the birth of my daughter. One day I went to the funeral of my husband and the next day I gave birth to my child. I was married for just one year. My husband had cancer in his head and nobody informed me about his illness in case it prevented me from marrying him. During the time we were married I had suspicions that he was ill but he was hiding his medicines. I cared for an orphaned child as mother and as father too. That was my fate. But this fate originated not from God but from people (that is, the man who threw the hand grenade).19 Part of the same narrative pattern is the previously mentioned account given by the son of the victim of the first crime, who was pressured to get married by his relatives at a very young age in order to have children and then to consider the consequences for them of any decision to avenge his father’s death.

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Another interesting account is provided by the narrative of the sister of the second victim, a young man of just nineteen who was newly betrothed. He was considered blessed, because in the traditional ceremony where the bones of the dead are subsequently transferred to an ossuary, his bones were said to smell of perfume, an occurrence believed by the Greek Orthodox Church to be a sign of sanctification.20 In this perspective of strong linkages between the individual and his kinship group (primarily with siblings and, by extension, through marriage with groups of affinities), every individual’s social actions contribute significantly to the shared, common affairs of his kinship group, not only as a present fact, but also a future possibility. Conversely, an insult to the honour of one person or an injury against him/her has potentially harmful effects for his/ her total kinship group.21 In the following narrative, the informant carefully identified this issue of the position of the person in relation to his group. The woman blinded in one eye by grenade fragments, who was closely related to the first victim as well as being a near relative of another victim of the handgrenade attack, has said of the kinfolk of the man who threw it (who all emigrated after the murders): There is a God and it is very possible they will pay for their crimes. They also have children. I am at the bottom of the sea and suddenly rise to the surface and at the same time God strikes another person, pushing him to the bottom. Now the blood relatives of the man who killed my sister have a lot of money, but God watches and I pray to God that they will be punished for the loss they caused to innocent members of my family. If they saw their children dead, murdered as my relatives were, only then would they have an idea of the greatness of this suffering.22 This position of the person as a ‘nodal point’ in the local discourses about crime stems from conceptions of identity according to which the person is society’s confirmation of an identity of the self as being of social significance and not as an individual’s awareness of a unique identity.23 A system of values that in the anthropology of the Mediterranean area in particular is summarised as the polarised opposition of honour/shame has reference to these conceptions of the person.24 These personal value systems, because they are inextricably integrated with the social entity appertaining to each individual and therefore with the extent of his or her social and political power, exist in each specific individual inasmuch as they are recognised by the others. As they result from conceptions about social and political power as non-coercive authorities, when one man insults another he simultaneously challenges the other man’s form of this social bond – in other words, his total existence as a social and political entity is threatened. In these competitive contexts, where local conceptions about blame constitute reflected disruptions of a person’s social bond, the crime an individual commits has social and political connotations because it is an action interconnected with redistribution of power between kinship groups, namely, the social process.

206 Aris Tsantiropoulos Halbwachs’ argument that a particular past is preserved and persists into the present because it remains relevant for present cultural formations is useful here.25 Thus, in a ‘feuding society’ the cultural present relations of any alliance, opposition or enmity are linked to past events and past crimes. Under the cultural schema of blood feud, as relations that are extending in time and involving ensuing generations, these ‘nodal points’ structure local discourses on crime. These are less an elaborated narration of an event (a crime) that took place in certain situations and for specific reasons, and more the framing of such a crime through continuing, and commonly accepted, values relating to honour and the need to defend it. Obviously, this narrative format provides room for a perpetual revision of a ‘fact’ to fit current situations and for the present memory of a past crime as a ‘deferred action’ (or nachtraglichkeit) to be loaded with specific sentiments and so impel the commitment of a responsive crime.26 One can see this in the current concern of people in Vorizia to avoid social situations that could create a ‘structure of conjuncture’ with the crimes of 1955, bringing together past and present into one image. The community continues to experience this blood feud as a traumatic event that has disrupted the social bond. Indeed, the community has not since 1955 celebrated its local saint’s day and worship is confined to the liturgy in the church. One local reflected: My village will never celebrate again together. The great lineages have separated into three factions. We are not cohesive as we were before the massacre. It is impossible for all the lineages of the village to celebrate jointly the local patron saint. . . . One year we tried to commemorate the local saint in a feast, but the people did not celebrate, they behaved as if they were at a funeral ceremony.27 Another added, ‘Also, there is great fear that there might be a repetition, with a similar criminal running amok during the feast.’28

Law reports and discourses on blood feud crime The case came before an Athens court in June 1956; the fifteen-day trial lasted from early in the morning until late at night, and numerous villagers gave evidence. Analysis of the material drawn from court archives reveals the construction of a legal discourse about the core facts which diverges from that of the locals. This divergence, found at both the formal and the content levels, stems from the differences between the constructs of blood feud and those of the law. As Pospisil has noted, a feud refers to an ‘intergroup phenomenon’; in other words, it is an internal affair conducted by members of a group who ignore or defy the political authority of an overall political organisation.29 The law, in contrast, is an ‘intragroup affair’, where decisions are made about individual group members who constitute parties in dispute by a higher authority, and those parties are induced or forced to comply with the terms of

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that decision. Additionally, although the law is not confined to judicial procedures, and although negotiation, mediation and arbitration are also legal entities based on established norms, the penal system active in modern societies negates the group cohesiveness by isolating the culpable individual and directly confronting him/her with this authority. Punishment is not given for an action considered to have caused injury to another individual within the group or to the group as a whole; it is given because an individual’s action, through its gravity or repeated occurrence, threatens the wider concept of ‘society’ within the state.30 However, in spite of these contradictions between the models of blood feud and judicial procedure, they can and do coexist in a state, as historical and ethnographic evidence clearly demonstrate. A quick reading of law reports recording the testimonies of the Vorizia people indicates that these do not provide a literal digest of the oral evidence. Each statement takes the form of a short document (up to three or four pages) where the main points of the evidence given was summarised in very brief sentences. In a very few examples there is a very short (one- or two-line) quotation, indicating the local discourse. The task of constructing these discourses must have been huge, given that some evidence was delivered over five or more hours. The vocabulary used in the legal record underlines the extent of the summarising; a considerable number of words used derive from the standard literal or legal vocabulary. However, either they do not exist in the community’s vocabulary or, where they do, are expressed differently in the local dialect. Legal testimony is a discourse constructed according to the decrees of the modern state and its law. The judge is only qualified to assess the relative degree of individual culpability and to impose consequent appropriate penalties, because he does not act as an individual but only implements the law. Also, as Verdier insists, a judge in any litigation testifies to the desire of the whole of that society to distance itself from the person punished. Consequently, the judge is not in the position of an avenger of a crime but that of the protector of the continuation of the existence of the social bond. Consequently, the intention of a sentence is the punishment of a person who causes rupture within society.31 From this perspective, it is reasonable for the concept of individual motives to be essential to litigious discourse. Thus, one of the main questions the judges and jurors have to answer is as follows: are the motives of the defendant of a criminal nature and, consequently, is it necessary to pass a very heavy sentence. Alternatively, were his motives other than criminal, and did he therefore commit the crime in question under a specific psychological pressure? It is argued here that it is in accordance with this logic that the oral testimony was transferred into written evidence in this case, as is evidenced by the following examples: The defendant commits crimes systematically. He shot his father, his mother-in-law and he wanted to kill me too.

208 Aris Tsantiropoulos The defendant Manousos Dalas was a partisan and fought against the German occupiers, he participated in a battle with the German army that took place in the village. I believe that he committed the crime in a drunken state.32 In the same framework, the term ‘blood feud’ is not recorded in the court archives because, from the perspective of the modern state’s law, it is impossible for ‘vendetta’ as a form of ‘primitive law’ to be incorporated into the legal arguments and outcomes.33 Nevertheless, in the direct reportage of the oral evidence found in newspapers, it is plain that in court local people used this term frequently. In the court archives, revenge crime is interpreted as ‘taking the law into one’s own hands’. Thus, the first crime was formally presented as being committed because the victim (Yannis Avgeris) accused Manousos Dalas of being a thief; and when, during the feast of St Fanourios, Dalas had offered Avgeris a glass of wine as a symbolic act of reconciliation, Avgeris had not only refused it, but had also thrown the full glass of wine aside, breaking it. In relation to this specific element in the affair, there is, in the court archives, one very rare example of authentic local speech. Manousos Dalas had reportedly said to one of his neighbours a few days before he had committed the crime in defence of his honour: ‘We, as a family, shall not permit the Avgeris family to condemn and marginalise us in the eyes of the community.’34 The individual implications of taking the law into one’s own hands and committing an honour crime, which then connects with a set of moral values familiar to a wider modern society, is in accordance with the logic of state law. However, the pressure of those moral values associated with honour originated in local custom, and the defence sought therefore to establish alternatively that the defendant acted in a state of extreme mental agitation. Finally, the divergence between the two discourses (that of local society and that of the law reports) is one originating from antithetical starting points. Local society discourse emphasised the predominance of conceptions about collective responsibility, which signifies that the crime acts as proof of the existence of specific forms of social bonds. This becomes apparent not only through the reasons why such action is undertaken, but also in who undertakes it and who is chosen as victim. However, from an official perspective, in front of the court the same person is identified as an object of disorder, because the existence of the state as an overarching authority presupposes a different form of social bond and consequently imposes a different conceptualisation of that individual. All these social and cultural connotations of blood feud as crime identify it as essentially a community affair, and thus cannot readily translate into arguments leading to a verdict within the processes of the state’s law. This accounts for the unfortunately brief defence statements, as Athenian newspapers noted: The defence statements of all the six defendants were very minimal. They did not invoke any conclusive evidence to mitigate their predicament. For

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this reason none of the defendants spoke for more than fifteen minutes. All the defendants’ testimonies were directed against witnesses asserting that they were accused only because of the hatred of their co-villagers.35 This complete antithesis between state law and blood-feud mentality is demonstrated in the dialogue below, as it was quoted in the newspapers: Witness: The ‘fire’ that now burns our village will never be quenched. Public Prosecutor: It must be quenched. After the court has made its decision, everything about these crimes has to finish. Witness: It is like a volcano. The children of the village are coming of age with the memories of their murdered relatives. Public Prosecutor: They must forget. The court’s decision, whatever it is, must be the final solution. If the next generation will not forget, woe betide your village.36 It is noteworthy that in contemporary Greece, law reports today manifest the same structure whenever there are cases of blood-feud crimes committed in Crete (or by Cretans), which remains the only ‘feuding society’ in Greece.37

Athenian newspapers and discourses on blood-feud crime Athenian newspapers commented extensively on the court performances of the locals from this Cretan village, a contrast to the limited reportage of the event itself and the trial in Cretan newspapers. Nearly the whole village travelled to Athens for the court case, where the contrast between rural people and city dwellers became ever more apparent. The Athenian press was publishing daily extended commentaries about the case, including verbatim extracts from witness testimonies. In contrast to the legal record, the bloodfeud dimension was predominant in that reportage. The marginality of revenge crime between nature (instincts) and culture (‘custom’ is the common definition)38 that occurs in a specific place provides points of reference par excellence for civil society to create a discourse about two divergent mentalities, one featuring Greek rural communities and another its urban population. This discourse has a historicity and depicts the formation of post Second World War new identities in Greek society. Additionally, as Avdela points out in her research about honour crime in the same period in Greece, morality is both the key arena for formatting agreements in society and the one that facilitates interference by state political leadership.39 This interference refers to a process of acculturation concentrating on the replacement of the system of ‘traditional’ values (i.e. honour and shame) with a modern consensus, individualistic morality that is in accordance with the expectations of modern civil society (one that Elias would recognise).40 The predominant position taken by conceptualisations of ‘criminality’ is not accidental in this

210 Aris Tsantiropoulos transformation of social values; it favours the imposition of state-dominated ideas of law and order on post-civil war socio-cultural relationships in Greece. Criminality, as a fluid and potentially ambiguous concept, condenses the insecurities and fears of the political leadership about those groups or situations they are unable to govern, in different historical circumstances and cultural contexts.41 Analysing the material from Athenian newspapers about the Vorizia court case, it can be argued that the identity of post-1945 Greek society is the production of polarities alongside a bourgeois conceptualisation of the ‘noble savage’. The main constituent elements of these polarities are evident in the reporting of the differences in the appearance and the performance of the defendants: Five of the six defendants are wearing black shirts because they are in mourning. Dalas: he has pleaded guilty to his crime. A bruiser, with a strong back, a sense of power reflected in his face, and decisiveness in his eyes. . . . Kostas Thalassis: middle-aged, his eyes are like an eagle’s and his expression is fierce.42 Extracts from witness testimony used in the newspapers also emphasise that dialect was at the core of the huge difficulties of communication between the local people and the legal professionals. Polarities such as literacy and orality, law and custom, the urban and the rural as environmental areas, central government and local politics, emotions and reason, constitute the ‘nodal points’ for the formation of the two differentiated mentalities, the ‘modern’ and the ‘traditional’. The Athenian newspapers insisted on the fact that it was difficult to imagine a more complex trial than this one. Apart from the four killings, jurors and judges in the trial were faced with a multitude of other factors that confused this bloody history. The most important was that the witnesses all spoke a Cretan dialect not fully comprehensible in the context of the formal court process. For the court to have comprehended that testimony properly, it would have been necessary for the legal personnel to be Cretan, living near to the village. Only then could there have been a clarification of the different affinities between the accused, the victims and the witnesses. Without a comprehension of the mentality of those intrinsically involved, it was not possible to clarify the facts or for lawyers to provide an effective defence. Finally, on the conceptions of the existence of an ‘otherness’, as it was represented in the Athenian newspapers in reference to the crimes of 26 August 1955, it can be pointed out that this incident contained all the elements necessary for the creation of the new urban and rural identities that were to be the dominant issue for Greek society in the succeeding decades. This is underlined by the way in which the events of 26 August can be summarised into two versions of their ‘context’.

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One version is that a major, bloody madness seized the people of Vorizia that night. The wine that had flowed from early morning enhanced the demonstration of virility, and contributed to the uncontrollable expression of passion and to the clouding of the mind. In such circumstances, no one could possibly refrain from a criminal action. The only mental imperative was the avenging of a sibling’s blood. An alternative one is that the social world of these people has taught them things we all, in our turn, have no knowledge of. They know how to ‘read’ a small cloud in the sunny sky and divine that there will soon be a storm. They know the trails of steep mountains, the footprints of hare and partridge, and the amazing and strange signs from Mother Nature, because they live very close to it. By contrast, we are in the dark on these matters, although we allege that we are citizens of the world.

Conclusion This chapter has suggested that certain specificities of the blood feud as a crime are a locus for investigating a number of matters. The methodological issue has been shown to be a need to establish the respective and complementary contributions, but also limitations, of different categories of sources (state archives, newspapers, ethnographically contextualised oral interviews) to the investigation of a social phenomenon. Analysing the divergent discourses surrounding a chain of crimes that took place in a feuding society at a specific historical point has revealed the origins of these discourses and also the mechanisms of their production. The divergences of discourse about the same phenomenon direct a research focus on to the reasons for its occurrence within a modern society in a modern state, which has more to do with socio-political relations and less with the actual content of law. The work and status of the trial in the domain of formal justice constitutes the official pronouncement of closure through a full and final hearing, and the application of clear norms for conduct, and for judgments based on both facts and these norms. The treatment of crime in a feuding society did not seek to reconstruct relationships or to heal the kin-group of the victim or that of the accused, nor the rest of the community.43 The importance of local conceptions of the blood feud and its socio-political dimensions to the creation of a habitus (a historical and social formation of individual self-consciousness) raises questions about the interrelationship of blood feuds with significant historical facts. It also makes the case for further research to topics related more directly to the phenomena of social memory and trauma.

Notes 1 For ethical reasons, all the names used in this article are fictitious. Only the name of the village is the real one. For this reason also, the individuals quoted in the chapter are not identified beyond confirmation that the oral testimony derives from the author’s fieldwork research.

212 Aris Tsantiropoulos 2 Another incident in the recent past had alerted the courts to the possibility of avenging action being taken during the hearing. In 1947, relatives of victims executed by German forces occupying Crete (1941–45) had killed six defendants accused of collaboration with the Germans in the courtroom. 3 In a ‘feuding society’, the blood feud is a structuring principle at all levels (social networks, economy, politics, ritual). See J. Black-Michaud (1975), Cohesive Force: Feud in the Mediterranean and the Middle East, Oxford: Basil, Blackwell. From this perspective, the blood feud can be considered as a ‘total social fact’, in correlation with the definition of the gift by Mauss; namely, as a fact with aspects at social, economic, political, juridical, ethical, aesthetic, etc. levels; see M. Mauss (1990), The Gift: Forms and Functions of Exchange in Archaic Societies, London: Routledge; also A. Tsantiropoulos (2004), I Vendetta sti sighroni orini kentriki Kriti, Athens: Plethron editions. 4 For a detailed analysis of the content of a social memory that becomes configured in reference to a crime in a feuding society and the ways this memory transmits to the next generations and triggers a retaliatory crime, see A. Tsantiropoulos (2008), ‘Collective Memory and Blood Feud: The Case of Mountainous Crete’, Crimes and Misdemeanours: Deviance and the Law in Historical Perspective, 2(1), 60–80. 5 Oral interview by author with wife of the son of the first victim (Yannis Avgeris), 5 January 2009. Grenades were among the weaponry and ammunitions left over from the Second World War. After the end of the war (and the Civil War) the people had illegally retained them. 6 The Athenian newspapers commenting in this way were: Akropolis; Apogevmatini; Athinaiki; Avgi; Eleftheria; Empros; Estia; Ethnikos; Kyrix; Ethnos; Kathimerini; Ora; Ta Nea; To Vima; Vradyni, and the comments appeared regularly in their columns between 15 and 30 June 1956. 7 E. Laclau and C. Mouffe (1985), Hegemony and Social Strategy: Towards a Radical Democratic Politics, London: Verso, p.112. 8 Oral interview by the author with the son of Yannis Avgeris, Vorizia, Crete, 5 January 2009. Testimony from fieldwork. 9 Lacau and Mouffe, Hegemony. Peculiar to this process of a changing social network in the case of feuding society of Crete are the possibilities of the existence of a blood feud in the same kinship group. For a more detailed analysis on the position of the person in his social network, the limitations of his actions by kinties but also the potential, as well as strategies for manipulating these in the achievement of his purposes, in the case of the feuding society of Crete, see Tsantiropoulos, Vendetta. 10 Oral interview by author with the niece of the first victim (Yannis Avgeris), Vorizia, Crete, 8 January 2009. 11 ‘All were shooting without anyone knowing who kils and why’, Akropolis, 19 June 1956. 12 See Akropolis; Apogevmatini; Athinaiki; Avgi; Eleftheria; Empros; Estia; Ethnikos; Kyrix; Ethnos; Kathimerini; Ora; Ta Nea; To Vima; Vradyni, between 27 August and 20 September 1955 and between 15 and 30 June 1956. 13 R. Girard (1987), Things Hidden Since the Foundation of the World, S. Bann and M. Metteer (trans), Stanford, CA: Stanford University Press, pp.12, 142. 14 E. Kontogiannis (1987), Voriza, Iraklion, 1987. 15 The significant integration of the blood feud with the history of the Second World War and the civil war in Crete is the subject of my research, taking a historical anthropology perspective. In this context, a citation from a report of a member of British Special Operation Executive (SOE) about the political conflicts is noteworthy: Although the peace pact [between communist partisans and the partisans supported by the British] had been undermined, the significant factor that

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24

25 26

27 28 29 30 31

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persists and discourages the escalation to an open civil war bloodshed is not the German army of conquerors as the common external enemy. A Greek may kill a Greek and then get away. But, if a Cretan kills a Cretan, even for reasons of political opposition, he has the responsibilities for engaging in a blood feud that will destroy not only him as an individual but his kindred too. In an island where there is a close bond with kindred and even the third degree cousin is considered as a close kinsman, the penalty is the extermination. See Jack Smith-Hughes (1991), Aporiti Anafora tis draseos tis SOE stin Kriti 1941–1945, Eleftheri Skepsis editions, 1997, p.204. It has to be noted that the name Fanourios, literally means ‘he who reveals’. M. Sahlins (1985), Islands of History, Chicago, IL: The University of Chicago Press, p.125. A. Tsantiropoulos, ‘Collective Memory and Blood Feud’, pp.60–80. Oral interview by author, niece of the first victim (Yannis Avgeris), Vorizia, Crete, 8 January 2009. Oral interview by author, sister of the second victim (sibling of Yannis Avgeris), Vorizia, Crete, 10 December 2009. For a more detailed analysis of this interconnectedness, see J.K. Campbell (1970), Honour, Family and Patronage: A Study of Institutions and Moral Values in a Greek Mountain Community, Oxford: Clarendon Press. Oral interview by author, niece of the first victim (Yannis Avgeris), 8 January 2009. M. Mauss, ‘A Category of the Human Mind: The Notion of Person; the Notion of Self’, in M. Carrithers, S. Collins and S. Lukes (eds) (1985), The Category of the Person: Anthropology, Philosophy, History, Cambridge: Cambridge University Press; also J.S. La Fontaine, ‘Person and Individual: Some Anthropological Reflections’, in Carrithers et al. (eds), Category of the Person, pp.123–40. J. Peristiany (ed.) (1966), Honor and Shame: The Values of Mediterranean Society, Chicago, IL: University of Chicago Press; D. Gilmore (ed.) (1987), Honour and Shame and the Unity of the Mediterranean, Arlington, VA: American Anthropological Association; D. Albera and A. Blok (2001), L’anthropologie de la Méditerranée/Anthropology of the Mediterranean, Paris: Maisonneuve et Larose. Maison méditerranéenne des sciences de l’homme; C. Boehm (1984), Blood Revenge: An Anthropology of Feuding in Montenegro and Other Tribal Societies, Lawrence, KA: University Press of Kansas; J. Ginat (1987), Blood Disputes Among Bedouin and Rural Arabs in Israel: Revenge, Mediation, Outcasting and Family Honor, Pittsburg, PA: University of Pittsburgh Press. M. Halbwachs (1992), On Collective Memory, ed. and trans. Lewis Coser, Chicago, IL: University of Chicago Press. An elaboration of the Freudian concept ‘deferred action’ is used here, namely experiences, impressions, memory traces [that] may be revised at a later date to fit in with fresh experiences or with the attainment of a new stage of development. They may in that event be endowed not only with a new meaning but also with psychical effectiveness. See J. Laplanche and J.-B. Pontalis (1983), The Language of Psycho-Analysis, London: Hogarth Press, p.111. Oral interview by author, relative of the first victim (Yannis Avgeris), Vorizia, Crete, 15 January 2009. Oral interview by author, son of the first victim (Yannis Avgeris), Vorizia, Crete, 15 January 2009. L. Pospisil, ‘Feud’, in David Sills (ed.), (1972) International Encyclopedia of the Social Sciences, London: Macmillan, p.392. N. Rouland (1994), Legal Anthropology, London: Athlone Press, pp.281–83. See ibid., pp.123–4, summarising the work of R. Verdier’s theory of law and exchange.

214 Aris Tsantiropoulos 32 General State Archives, Athens, Dikastika Praktica (transcripts), 1956, vol.1. 33 In Greece, the common use word for blood feud is ‘vendetta’. In Crete, beside the word ‘vendetta’ there is also (mainly at intra-community discussions), the phrase ehoume ikogeniaka, translating as ‘we have inter-family troubles’. 34 General State Archives, Athens, Dikastika Praktica (transcripts), 1956, vol.1. 35 ‘ “Criminals who Shame the Glorious History of Crete” was how the Public Prosecutor described the defendants from Vorizia in his concluding speech’, Apogevmatini, 26 June 1956. 36 ‘The massacre of Vorizia. The fire that now burns our village will never be quenched’, Ethnos, 20 June 1956. 37 Tsantiropoulos, Vendetta. 38 It can be argued that the marginal position of blood feud is analogous with that of incest. See C. Levi-Strauss (1969), The Elementary Structures of Kinship, Boston, MA: Beacon Press, 1969. 39 E. Avdela (2002), Dia Logous Timis: Via, Sinesthimata kai Axies sti Metemfiliaki Ellada, Athens: Nefeli Publications, 2002. 40 N. Elias (1991), The Society of Individuals, Oxford: Basil Blackwell. 41 Ibid., p.184. 42 ‘The bloody revenge of Vorizia. The court witnesses attempt to ease the predicament of their accused relatives’, Athinaki, 16 June 1956. 43 For a more detailed analysis on these subject, see M. Minow (1998), Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence, Boston, MA: Beacon Press, 1998.

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216 Bibliography Carrithers, M., Collins, S. and Lukes, S. (eds) (1985) The Category of the Person: Anthropology, Philosophy, History, Cambridge: Cambridge University Press. Carter, J.W. (2004) Violence and Crime in Nineteenth Century England: The Shadow of our Refinement, Abingdon: Routledge. Charlesworth, L. (2009) Welfare’s Forgotten Past: A Socio-Legal History of the Poor Law, Abingdon: Routledge. Cherniavsky, M. (1969) Tsar and People: Studies in Russian Myths, Boston, MA: Random House. Davie, N. (2005) Tracing the Criminal, Oxford: Bardwell Press. D’Cruze, S. (ed.) (2000) Everyday Violence in Britain, c.1850–1950: Gender and Class, Harlow: Longman. Deonna, J., Rodogno, R. and Teroni, F. (2011) In Defense of Shame: The Faces of an Emotion, Oxford: Oxford University Press. Doig, A. (2010) State Crime, Cullompton: Willan. Downes, D., Rock, P., Chinkin, C. and Gearty, C. (eds) (2007) Crime, Social Control and Human Rights: From Moral Panics to States of Denial. Essays in Honour of Stanley Cohen, Cullompton: Willan. Dubber, M. and Farmer, L. (eds) (2007) Modern Histories of Crime and Punishment, Stanford, CA: Stanford University Press. Elias, N. (2004) The Civilising Process, Oxford: Blackwell. Engel, B.A. (2011) Breaking the Ties that Bound: The Politics of Marital Strife in Late Imperial Russia, Ithaca, NY: Cornell University Press. Erickson, R. (1983) The Brand On His Coat: Biographies of Some Western Australian Convicts, Nedlands, WA: University of Western Australia Press. Evtuhov, C. and Kotkin, S. (2002) The Cultural Gradient: The Transmission of Ideas in Europe 1789–1991, Lanham, MD: Rowman & Littlefield. Farrall, S. (2005) Understanding Desistance from Crime, Cullompton: Willan. Faulkner, D. (2006) Crime, State and Citizen: A Field Full of Folk, Winchester: Waterside Press. Finnane, M. (1997) Punishment in Australian Society, Oxford: Oxford University Press. Fitzpatrick, M. (2004) The Enlightenment World, Abingdon: Routledge. Foucault, M. (1979) Discipline and Punish: The Birth of the Prison, New York: Vintage Books. Foucault, M. (2006) Madness and Civilization: A History of Insanity in the Age of Reason, Abingdon: Routledge. Friedland, P. (2012) Seeing Justice Done: The Age of Spectacular Capital Punishment in France, Oxford: Oxford University Press. Garland, D. (1985) Punishment and Welfare: A History of Penal Strategies, Aldershot: Gower. Garland, D. (2002) The Culture of Control: Crime and Social Order in Contemporary Society, Oxford: Oxford University Press. Gaskill, M. (2003) Crime and Mentalities in Early Modern England, Cambridge: Cambridge University Press. Gatrell, V.A.C. (1987) The Hanging Tree, Execution and the English People, 1770–1868, Oxford: Oxford University Press. Gibbons, D. (1992) Society, Crime and Criminal Behavior, Upper Saddle River, NJ: Prentice Hall. Gibson, M. (1992) Born to Crime: Cesare Lombroso and the Origins of Modern Criminology, Westport, CT: Praeger.

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217

Gilbert, P. and Andrews, B. (1998) Shame: Interpersonal Behaviour, Psychopathology, and Culture, Oxford: Oxford University Press. Gilmore, D.D. (ed.) (1987) Honour and Shame and the Unity of the Mediterranean, Arlington, VA: American Anthropological Association. Godfrey, B., Cox, D. and Farrall, S. (2010) Serious Offenders: A Historical Study of Habitual Criminals, Clarendon Series in Criminology, Oxford: Oxford University Press. Godfrey, B., Emsley, C. and Dunstall, G. (2003) Comparative Histories of Crime, London: Taylor & Francis. Gouk, P. and Hills, H. (eds) (2005) Representing Emotions, Aldershot: Ashgate. Habermann, J.I. (2003) Staging Slander and Gender in Early Modern England, Aldershot: Ashgate. Habermas, J. (1992) The Structural Transformation of the Public Sphere: Inquiry into a Category of Bourgeois Society, Cambridge: Polity Press. Halbwachs, M. (1992) On Collective Memory, ed. and trans. Lewis Coser, Chicago, IL: University of Chicago Press. Hamblet, W. (2010) Punishment and Shame: A Philosophical Study, Lanham, MD: Lexington Books. Hanawalt, B.A. (1998) ‘Of Good and Ill Repute’: Gender and Social Control in Medieval England, Oxford: Oxford University Press. Hutton, M. (2001) Russian and West European Women, 1860–1939: Dreams, Struggles and Nightmares, Lanham, MD: Rowman & Littlefield. Johnson, E.A. and Monkonnen, E. (1996) The Civilisation of Crime: Violence in Town and Country Since the Middle Ages, Urbana and Chicago, IL: University of Illinois Press. Jones, J., Grear, A., Fenton, R.A. and Stevenson, K. (eds) (2011) Gender, Sexualities and Law, Abingdon: Routledge Glasshouse. Joyce, P. (2006) Criminal Justice, Cullompton: Willan. Kermode, J. and Walker, G. (eds) (1995) Women, Crime and the Courts in Early Modern England, Chapel Hill, NC: University of North Carolina Press. Kilday, A-M. (2007) Women and Violent Crime in Enlightenment Scotland, Rochester: Boydell Press. King, E.B. and Ridyard, S.J. (eds) (1990) Law in Medieval Life and Thought, Sewanee, TN: University of the South. King, P. (2006) Crime and Law in England 1750–1840: Remaking Justice from the Margins, Cambridge: Cambridge University Press. Kollmann, N. (1999) By Honor Bound: State and Society in Early Modern Russia, Ithaca, NY: Cornell University Press. Kucherov, S. (1953) Courts, Lawyers and Trials under the Last Three Tsars, Westport, CT: Frederick A. Praeger. Lacey, N. (1994) State Punishment: Political Principles and Community Values, Abingdon: Routledge. Landau, N. (2002) Law, Crime and English Society, 1660–1830, Cambridge: Cambridge University Press. Leatherbarrow, W. and Offord, D. (eds) (2010) A History of Russian Thought, Cambridge: Cambridge University Press. Lindenmeyr, A. (1996) Poverty is not a Vice: Charity, Society and State in Imperial Russia, Princeton, NJ: Princeton University Press.

218 Bibliography Lombroso, C. (2006) Criminal Man, Nicole Hahn Rafter (trans.) and Mary Gibson (ed.), Durham, NC: Duke University Press. Loveland, I. (ed.) (1995) The Frontiers of Criminality, London: Sweet & Maxwell. Manning, N. and Tikhonova, N. (eds) (2004) Poverty and Social Exclusion in the New Russia, Aldershot: Ashgate. Miller, W.I. (1993) Humiliation and Other Essays on Honour, Social Discomfort, and Violence, Ithaca, NY: Cornell University Press. Mironov, B. (2000) The Social History of Imperial Russia, 1700–1917, 2 vols, Boulder, CO: Westview Press. Morgan, G. and Rushton, P. (2004) Eighteenth Century Criminal Transportation: The Formation of the Criminal Atlantic, Basingstoke: Palgrave. Morris, N. and Rothman, D.J. (1998) The Oxford History of Priso: The Practice of Punishment in Western Society, Oxford: Oxford University Press. Morris, H. (1976) On Guilt and Innocence: Essays in Legal Philosophy and Moral Psychology, Berkeley, CA: University of California Press. Nash, D. and Kilday, A-M. (2010) Cultures of Shame: Exploring Crime and Morality in Britain 1600–1900, Basingstoke: Palgrave. Nash, D. and Kilday, A-M. (eds) (2010) Histories of Crime: Britain 1600–2000, Basingstoke: Palgrave. Norrie, A. (2001) Crime, Reason and History: A Critical Introduction to the Criminal Law, Cambridge: Cambridge University Press. Norrie, A. (2000) Punishment, Responsibility and Justice: A Relational Critique, Oxford: Oxford University Press. Nussbaum, M. (2004) Hiding from Humanity: Disgust, Shame and the Law, Princeton, NJ: Princeton University Press. Peristiany, J. (ed.) (1966) Honor and Shame: The Values of Mediterranean Society, Chicago, IL: University of Chicago Press. Pick, D. (1989) Faces of Degeneration: A European Disorder, c.1848–1918, Cambridge: Cambridge University Press. Pierson, C. (1996) The Modern State, Abingdon: Routledge. Posner, E.A. (2000) Law and Social Norms, Cambridge, MA: Harvard University Press. Rafter, N. (2008) The Criminal Brain: Understanding Biological Theories of Crime, New York: New York University Press. Ransel, D. (ed.) (1978) The Family in Imperial Russia: New Lines of Historical Research, Urbana and Chicago, IL: University of Illinois Press. Rodger, J.J. (2008) Criminalising Social Policy: Anti-Social Behaviour and Welfare in a De-Civilised Society, Cullompton: Willan. Rouland, N. (1994) Legal Anthropology, London: Athlone Press. Rowbotham, J. and Stevenson, K. (eds) (2005) Criminal Conversations: Victorians Behaving Badly, Columbus, OH: Ohio State University Press. Ruff, J.R. (2001) Violence in Early Modern Europe, 1500–1800, Cambridge: Cambridge University Press. Scheff, T. and Retzinger, S. (2001) Emotions and Violence: Shame and Rage in Destructive Conflicts, New York: iUniverse. Schioppa, A.P. (ed.) (1997) Legislation and Justice, Oxford: Clarendon Press. Solomon, P.H. (ed.) (1997) Reforming Justice in Russia, 1864–1996, Amork, NY: M.E. Sharpe. Spierenburg, P. (2008) A History of Murder: Personal Violence in Europe from the Middle Ages to the Present, Cambridge: Polity.

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Index

adultery xi, 21, 23, 34, 83, 125, 132, 168–9, 174–8 alcohol see drink and drunkenness Alexandra, Empress see Fyodorovna, Empress Alexandra Alford, Violet 203 alms see philanthropy 154, 163 almshouses see workhouses America and Americans xi–xii, 81, 86–7, 90, 98–99, 107n15, 124, 125, 183n87 Anatomy Act 1832 26 anthropology xii, xiii, 17, 19, 43, 46, 81, 82, 84, 85, 86, 87, 89, 90, 168, 178; and anthropometry 47, 82–7; criminal anthropologists 81, 86, 88, 89, 94n66 Aretinus 37 Aristotle 18 assault 27, 87, 142, 144 assizes 71, 99 asylums 87, 88; Broadmoor 88 Aufklärung see Enlightenment Australia xiv, 9, 96, 97, 98, 99, 100–3, 105, 195 Austria-Hungary, 195 Avdela, Efi 70 bandits and banditry 141, 143–4, 149n14 Beccaria, Cesare xi, 49 beggars and beggary 85, 152–65, 166n11 Belarus and Belarussians 185, 197n5 Bentham, Jeremy xi, 49, 152, 159, 164

Bertillon, Alphonse 8, 81–7; Les Races Sauvages 85, 93n40 Bertillonage 81, 84, 86 biometrics 9, 84–91 Blackstone, William: Commentaries 12 blame xi–xiv, 1–13, 17–28, 32–9, 43–57, 63–77, 80–91, 96–106, 111–16, 118–37, 141–8, 152–8, 160–5, 168–80, 184–8, 190–7, 199–211; and modernity 2–4 blasphemy 23, 186, 197n13 blood feuds 11, 145, 200–11, 212nn3, 9, 212–3n15, 214n33 Bourke, Joanna 151n52 Braithwaite, John 20, 39n2, 58n19 branks and ‘branking’ 52, 128–30, 132, 134, 136, 172 broadsheets and ballads 67, 127, 194 Burke, Edmund 156 Calvinism 47, 127, 153 capital punishment xiii, 10, 22–3, 67, 80–1, 111–13, 116, 118, 119, 121, 175; see also executions Carpzov, B. 26, 36, 37 Carroll, John 19 Catholicism (Roman) 19, 34, 59n27, 114, 116, 122n15; see also Christianity, Church Caucasus 179 Ceffyl Pren 131, 140n61 charity 152, 153, 154–157, 160, 161, 164; see also philanthropy charivari 124–125, 131; see also ‘rough music’

222 Index Charlesworth, Lorie 166n9, 167n40 chastity 18, 24, 27, 117, 128, 145, 150n27, 168–73; and virginity 144, 150n27, 171–5 Chicago School 103 Christianity 21, 28, 48, 142, 144, 146, 151n38, 169, 172, 178 Church 34, 47, 57, 59n27, 105, 114, 117, 126–7, 128, 130, 132, 134–5, 136, 169, 173, 174, 205–6; ecclesiastical issues 21, 68, 126, 129, 130, 179; Orthodox Church and faith (Greece) 205; Orthodox Church and faith (Russia) 153, 154, 169, 178, 193 civilisation xii, 7, 43, 45, 57, 163; civilised guilt 19; and civilising processes 1–3, 11, 43–5, 51–3, 137, 141 Clarus, Julius 26, 36 class 44, 46, 49, 51, 52, 55, 64, 69, 71, 72, 82, 85–7, 89, 105, 120, 126, 146, 153, 160, 169, 175, 179, 196 clergy and clergymen see priests codification (legal) 10, 17, 44, 113–14, 116, 122n15, 169, 184; Bloody Code (eighteenth century) 67; Charlemagne’s Capitulary (802) 115; Code of Laws 1832 (Russia) 169; Consitutio Criminalis Carolina 26, 27; Corpus Juris Civilis (Justinian) 115, 116, 122n15; Legal Code 1649 (Muscovy) 24–26; Penal Code 1813 (Russia) 169; Russian Legal Military Code 1716 27, Stoglav Code 154, 186; see also law and legislation colonies and colonists 9, 32, 43, 81, 96–105, 188; colonial societies xii, 9, penal colonies 98–100 confraternities 118 Corder, William see Red Barn Murder Corfu 146, 151n41 Cossacks 176–7 courts and courtrooms 6, 13, 22, 27, 34, 36–7, 50, 54, 68–69, 70–6, 98–104, 114, 126, 127, 130, 134–5, 143, 175–6, 188, 196, 199–202, 206, 208–210; church courts 126;

consistory courts 50; magistrates or police courts 73–4; volost courts 175, 176, 184, 187, 188, 190, 180 Crete and Cretans 11, 13, 199–203, 209–11, 212n9, 212–13n15, 214nn33, 35 criminality and crime xi–xiv, 1–13, 21–3, 25–6, 33–9, 43, 54–5, 57, 63–77, 80–91, 96, 98–106, 106n4, 111, 113–17, 119–20, 124–7, 135, 142, 144, 146–8, 153, 155–6, 158–9, 169, 175–6, 184–91, 194–7, 199–211; crime rates 98; criminal types 81–91, 95n75; habitual criminals 72, 84–5, 89, 162; honour crime 199, 209; rehabilitation from 101–3, 105 criminal justice xi, xiii, 1, 3, 5, 7–9, 33–4, 36–7, 54, 63–77, 120–1, 211; pathology 45, 83, 89, 145, science 8, 57, 68, 82, 87, 91; see also justice, delivery and concepts of criminalisation 1–9, 63–77 criminalists see criminology: criminologists criminology 1, 8–7, 17, 81, 82, 88, 90, 91, 94n66, 103, 106, 162; criminological theory 8–9; criminologists 20, 36, 84, 88, 89, 90, 91, 98, 103, 195, 196 culpability xi–xiv, 1–13, 19, 34, 55, 63–77, 77n16, 81, 105, 115, 165, 207 culture xiii, 3, 5, 12, 19, 20, 28, 47–8, 49, 51, 124, 126, 180, 196, 209; cultures of shame 47–52; guilt cultures 17, 19, 44, 69 Darwin, Charles 81, 83; see also Social Darwinism death penalty see capital punishment degeneracy and degenerates xii, 80, 82, 84, 86–9, 86, 106 delinquency and delinquents xi, 90 desistance 66, 76, 97–9, 102–103, 105–6 deterrence 6, 10, 20–1, 28, 32, 55–6, 70, 74, 111–16, 118–21, 124, 135, 145, 158, 179

Index 223 deviance 10, 32, 80–2, 86, 88, 90–1, 124, 125, 127, 128, 129, 131, 133, 135, 136; biologically driven 8–9, 80–1, 87–91, 106, 106n4 disgrace 18–20, 24, 57, 126, 130, 142–3, 146, 168–71, 173–74 dishonour and infamy/infamia xi, xiv, 6, 11, 17, 18, 20–8, 33–9, 57, 142–4, 147, 174, 177; dishonourable trades 38–9, 117; infamia ex genere poenae 39; infamia facti 34, 37, 38; infamia iuris 34, 37; infamia per sententiam 37; see also honour disorder 32, 74, 100–3, 153, 208 drink and drunkenness 12, 50, 86, 100, 102–3, 105, 114, 154, 157, 159, 161–2, 164, 184, 185–90, 195–6, 208 Du Cane, Edmund 83, 86 ducking stool 130, 139n39 duelling 19 ecclesiastical see Church Elias, Norbert xii–xiii, 2, 3, 7, 19, 44–5, 52–3, 178–9, 209 Ellis, Havelock 81 England 19, 23–4, 47, 55–6, 63–4, 66–71, 74–5, 125–6, 128–37, 152–3, 156, 159, 162–4 Enlightenment xi, 4, 17–18, 20, 45, 49, 80 ethnicity 52, 84–5, 157, 185, 192, 195, 197n5; see also race ethnography 173, 207, 211 eugenics and eugenicists 87–90, 94n56 Europe, European xii– xiv, 1, 3–4, 6, 10, 12–13, 17, 19–24, 27–8, 33, 43–4, 54–6, 81, 85, 115–16, 124, 126–7, 152–4, 163, 179 executions xiii, 9–10, 22–3, 35, 49, 67–8, 111–12, 116–21, 126, 203, Eugene Weidman, execution of 121; lynching xii, 178; Madame Lescombat, execution of 120–1; see also capital punishment executioners 22, 23, 111, 117 exile, expulsion and banishment 22–3, 98, 103, 112, 114, 117, 121, 131, 154, 175; outlaws 85, 135, 144

fama xiii, 6, 11, 24, 33–8 family and families, 9, 20, 24, 33, 50, 53, 70, 73–5, 96–7, 103, 113, 120, 125, 136, 142, 144–6, 157, 158–9, 164, 170–1, 176–9, 191, 200–1, 204–5, 208; see also monarchy and monarchism Farinacius 36, 38 Ferri, Enrico 81 feuds see blood feuds folklore, folk song and folk rituals 51, 143–4, 170, 174, 186, 203 forensics 87–8 Foucault, Michel xi, xiii, 3, 5, 7, 19–20, 45, 58n7, 111, 153–4, 179 France and the French xii– xiv, 4, 6, 10, 20–4, 51, 84, 86, 111–21, 124 fraud 21, 23, 54 Fyodorovna, Empress Alexandra 155, 163, 166n16 Gagen, V.A. 160–1 Galton, Francis 8, 81–7, 92n20, 94n56 Garland, David 82, 122n4 gendarmes see police and policing gender xiii, xiv, 10–11, 26–8, 49, 52, 55, 69, 71, 126–8, 130, 132–3, 136, 140n65,168–9; femininity and female stereotypes 11, 24, 27, 126–8, 130, 143–4, 149n9, 168–9, 170–1, 176, 179, 190, 192; manliness and masculinity 27, 50, 140n65, 142–3, 145–8, 168, 171, 173, 195, 205 Ger’e, V.I. 159, 161 Germany and Germans 6, 21–6, 36, 37, 38, 84, 114, 163, 172, 194–5, 203–4, 212n2, 212–3n15 Goring, Charles 89, 90 Gorky, Maxim 168 government and governance 23, 35, 38–9, 52, 98–9, 104, 112, 121, 163, 165, 189, 190, 191, 193, 194, 210 Greece and Greeks xiv, 5, 6, 11, 24, 67, 70; Greek Revolution 141–8; 148nn2, 6 Grot, K 159–60 Grotius, Henricus 148n3 guilt xiii–xiv, 2, 7, 12, 17, 19, 32, 34, 44, 47–8, 49, 53–4, 58n25, 65,

224 Index 67–70, 111, 113, 148, 152, 154, 158, 163, 169, 170, 172, 176, 179, 186, 200, 210; guilt cultures see culture Habermas, Jurgen 47, 53 habitual criminals see criminality and crime habitus 13, 103, 211 hanging see executions heresy 34, 40nn2, 15, 119, 193 heritage 96–105 historiography 1, 9–10, 49–53, 58n25, 125–6, 165 Hobart 99, 100–2, 104–5 honour xii–xiv, 6, 11, 13, 17–19, 21–8, 38–9, 117, 141–3, 145–6, 148, 168, 170, 200–1, 205–6, 209; honour societies xii, 6, 18, 21, 23–4, 141–51, 168–9, 199–211 honour crimes, see criminality and crime indigence see poverty infamia see dishonour, fama infanticide 18 infidelity see adultery Ingram, Martin 125, 129 innocence 65, 68, 205 insult 12, 23–8, 146, 150–1n37, 171, 176, 179, 184–97, 200–1, 205 interdisciplinarity 1, 13, 84 International Congress on Criminal Anthropology 85 Ireland 50, 59, 64, 129 Jersey 50–1 Jervis Acts [England and Wales] 1848–1849 71, 75, 78n37 journalism and journalists 50–4, 71–6, 157–8, 161–2, 194, 202, 209–10 judges and the judiciary xiv, 7, 27, 33, 34–7, 39, 65, 69, 73, 114, 121, 126, 127, 130, 146, 149n11, 154, 194, 201, 207, 210 juries and jurors 69, 85, 149n11, 201, 207, 210 jurists, xi, xiv, 33, 36, 37, 38, 112, 115–16

justice, delivery and concepts of xi–xiv,1–13, 32–9, 54, 56, 63–70, 77, 111, 120–1, 122n15, 133–6, 211; community involvement with 2–3, 5–7, 9, 10–13, 14n12, 21–2, 32, 35–9, 50, 63, 66–9, 71, 72, 74–7, 114, 119, 124–5, 130, 134, 136; community justice 2, 20–1, 33–5, 65, 72, 133–5, 146–7, 172, 175–6, 177–8, 208; natural justice 5, 38, 56, 69 Justinian, Emperor 115, 122n15 juveniles xi, 72, 75–6, 97 Kaluga 170–1, 173–4 Kant, Immanuel 18–19; Doctrine of Right 18 Karamzin, Nikolai Letters of the Russian Traveller 153 Karnovitch, B.G. 156, 157–8, 164, Historical Essay on Beggary (1889) 156 Kazan 173, 187, 190 Khvostrov, A.A. 196 Kollman, Nancy 24 Kolotil’schschikova, E.A. 184 Kostroma 174, 177 Language 4, 20, 38, 46, 55, 88, 91, 114, 155, 156, 198n32, 207; see also insult Lavrov, A.S. 195 law and legislation xi–xiv, 2–10, 17–18, 21–8, 33–9, 50–1, 57, 64, 65, 68–9, 72, 74–6, 111–117, 122n15, 135, 143, 147, 153, 156, 161, 164, 169, 174–5, 179, 184, 187, 191, 199–211; Canon law 116; customary law 114, 116, 132, 134–5, 143, 174; exceptio veritatis 25–6; factum iudicis 35; and Germanic law 114; Kormchaia (Greek compendium of laws) 24; legal codes 17, 21, 113–14, 122n15, 169; natural law xiv, 5, 24–5, 67; penal codes 17, 21, 113, 169, 184–5; Roman law 21, 69, 112–16; Salic law 113–15 lese–majesty 12, 23, 35, 185–96 Levenstim, August 156–9, 163, 164

Index 225 Leviathan (Hobbes, Thomas) xiii Lindenmeyr, A. 153 literacy and reading 46, 48, 57, 72, 88, 104, 120, 141, 156–8, 161–2, 184, 194, 207, 210; readerships 45, 72 Lithuania 170 Liverpool 64, 98 Lombroso, Cesare 80–2, 87–9, 90, 91 London 51, 73, 83, 98 Lumières see Enlightenment Lutheranism 119; see also nonconformity Luxemburg, Rosa 160 lynching see execution Macedonia 143 madness see mental deficiency/illness and insanity magistrates 39, 50, 64, 65, 69, 71–5, 79, 99, 100–2, 146; stipendiary magistrates 64, 71–2, 96 magistrates courts, see courts and courtrooms Maksimov, S.V. 157 Malthus, Thomas 152, 159–60, 164 manliness and masculinity see gender marriage 25, 34, 37, 53, 103, 105, 124, 149n10, 158, 169–78, 204–5; polygamy 157 Marten, Maria see Red Barn Murder Maudsley, Henry 80, 91 Mead, Margaret 19 media xi, 7, 8, 47, 52, 53, 66, 67, 71, 74–6, 96–7, 178, 195; mass media 7, 8, 96, 178, 195; see also newspapers, periodicals and news Mediterranean 6, 13, 19, 24, 86, 205 mendicancy see beggars and beggary mens rea 65 mental deficiency/illness and insanity 80, 82, 86–91, 153, 161, 194, 211; feeble–mindedness 82, 84, 88–9, 155; Royal Commission on the Care and Control of the Feeble-Minded 1904–1908 (England) 88 mentalities 143, 209–10 methodologies 7, 8, 20, 32, 84, 90, 105, 199, 211 mimesis 202–3

modernity and modernisation xiii, 1–13, 44, 45, 46, 47, 51, 53, 57, 63, 70, 74, 119, 148n6; modern states 1–4; post–colonial modern state 9 monarchy and monarchism 51, 186, 189, 191, 193, 194, 196; royal family (British) 51; royal family (Russian) 12, 184–9, 191, 192–6 see also Fyodorovna morality and moral values xi–xii, 18–19, 21–4, 34, 38, 50–1, 55, 65–6, 69, 71–2, 81, 82, 85, 88, 124–6, 132–3, 135, 142–6, 156–7, 159, 162, 164, 169, 173–5, 178–9, 208–9 moral panic 72 Moscow 157–8, 196 murder 2, 35, 63, 67–8, 120, 142, 144, 147, 150–1n37, 176, 199, 202, 205, 209 nationalism and nationality 6, 7, 9, 49, 85, 96, 106, 141, 148n2, 153, 157, 172, 185, 192, 195, 197 neighbourhood 27, 128, 131, 136, 197 Netherlands 28 newspapers, periodicals and news 39, 47, 51, 52, 73–5, 88, 104, 127, 157–8, 161–2, 194, 195, 199–203, 208–211; and circulation 27, 51, 158; tabloids 197; see also media, journalism and journalists nonconformity 34, 130; see also Christianity Novgorod 170, 177, 185 Nussbaum, Martha 21, 32 offences and offensive behaviour 6, 10, 21, 22, 23, 34, 35, 50, 63–6, 69, 72, 74–6, 81–5, 90, 97–105, 124–5, 128, 130, 132–4, 138n14, 145–6, 154, 158, 169, 171, 176, 184–5, 189–91, 197; sexual offences 10, 21, 23, 1256, 138n14, 146 offenders, xi, 12, 20–2, 36, 39, 72, 74, 81–3, 85–6, 88, 90, 97–8, 103, 106, 111, 113, 116, 117, 119, 124–5, 129–30, 132–5, 143, 146–7, 179, 184–5, 191–2, 196 Orthodox Church see Church

226 Index Ottoman Empire 141, 142, 143 outlaws see exile, expulsion and banishment pamphlets see newspapers, periodicals and news Paris 84, 86, 118 paternalism see patriarchy and paternalism pathology see criminality and crime patriarchy and paternalism 125–6, 128, 130–1, 132–3, 146, 153, 154 paupers and pauperisation see poverty and indigence peasants 57, 141–5, 154–5, 160, 163–4, 173, 177, 184–95; serfs and serfdom 24, 27, 155, 179 penal codes see law and legislation penal sentences and penal servitude 104, 107n17, 112–16, 135 penology and penal theory and practice xi–xiv, 20–1, 49, 55, 112–16, 121, 146–7, 207 Perm 157, 158, 173 Perth 99, 100–2, 104 philanthropy 12, 152–7, 160–1, 163–4, 166n16, 194; and philanthropists 155 physiognomy 83–4, 87, 89 physiology 9, 81, 88, 89 pillory 21–3, 35, 49, 52, 116, 117, 124, 130, 139n44; see also punishment police and policing 48, 52, 55, 72, 83–4, 86, 93, 121, 142, 146, 185, 187–90, 192–4, 196, 199; gendarmes and gendarmerie 86, 194, 196, 198n49 police courts see courts and courtrooms poorhouses see workhouses, almshouses and poorhouses Poor Law (England) 55, 56, 156, 165n3; Poor Law (Amendment) Act 1834 (England) 55, 153; for poor relief see poverty and indigence Portugal 85 Pososhkov, Ivan 154–5 postmodernity and postmodernists 46 poverty and indigence 11–12, 22, 46, 55–6, 112, 152–65; and poor relief 12, 55, 56, 152–64; paupers and

pauperisation 12, 56, 64, 72, 87, 157–9, 164, 175; Set of Responses by Rural and Urban Local Authorities on the Major Issues of Public Charity (Russia) 160; Some Notes on the Project of Public Assistance (Russia) 161; Special Commission for Reforming the Poor (Russia) 159 precrime 8, 80, 82–3, 88, 90–1, 158 priests 40n15, 50, 59; clergy and clergymen 34, 141, 158, 169, 174; patriarch (Muscovy) 198n38 prisons and imprisonment xi, xiv, 20, 49, 50, 55–6, 64, 73, 75, 80–3, 86, 88, 91, 97, 100, 103, 117, 147, 185, 187, 191 professions and professionalism 26, 45–6, 56, 89, 210 prosecutions 39, 50, 65, 67, 71, 80, 100–2, 135, 179, 185, 187–8, 191, 201, 209 prostitution and prostitutes 23, 25–6, 27, 34, 86, 117, 146, 149n10, 161, 171, 191 psychiatry and psychiatrists 82, 86, 88–9 punishment xi–xiv, 1, 2–11, 17–18, 20–4, 26, 28, 32–9, 43, 47–8, 49, 53, 54, 55, 56, 57, 66, 69, 70, 72, 75, 98, 103, 106, 111–21, 124–37, 143, 145–7, 152, 154–5, 158–9, 161–2, 168–80, 184–7, 193, 205, 207; by communities 5, 10–11, 12, 22, 71, 119, 127–37, 140n65; by compensation/fine 26, 113, 117–18; as defamation xii, 184–5; physical nature of 21, 22, 26–7, 35, 116–17, 130, 168; reform of 53; theories of 117, 119–21; shaming 1, 5, 6, 20–3, 32, 49, 52, 116–17, 124–37, 140n65, 170–4, 178; sodomy, punishments for 21, 34, 126 race 69, 71, 84–5, 93, 94n56; see also ethnicity, eugenics and eugenicists rape 23, 27, 76, 83, 141–8, 148nn3, 4; rape myths 142, 148–9n8 readerships see literacy and reading

Index 227 recidivists and recidivism 54, 72, 99, 107–8n20, 129, 145 Red Barn Murder 68 religion 5, 118–20, 123n23, 136–7, 154–5 reporters and reportage see journalism and journalists revolutions and revolutionaries xiii, 4, 11, 141–8, 178, 184, 187, 196 riding the ‘stang’ see ‘stang’ rights 35, 36, 37, 69, 130, 135, 143, 156, 159–61, 169, 171, 172 Roman law see law and legislation Romania 84 Rome 112, 115–16 ‘rough music’ 125–8, 131–5 Ruggles-Brise, Sir Evelyn 82, 89, 90, 95n73 Russia xiv, 4, 6, 8, 10–12, 19, 20–7; character (Russian) 153, 157; poverty in 12, 153–65; repeal of serfdom 155; state authority 12, 184–96; traditional values 11–12, 153–4, 164, 165, 169, 171–2, 174, 178–9, 189; treatment of deviants and criminals 22–3, 125, 158, 159, 169; women, 10, 22, 27, 168–79; World War I 184, 187, 193, 195–7; writings on the poor 153, 154–5, 156–8, 160–2, 163, 164, 165; see also beggars and beggary; codification (legal); guilt; lesemajesty; monarchy and monarchism; poverty and indigence; shame; workhouses, almhouses, and poorhouses; Western experience/ models of Westernisation Salic Law see law and legislation scandal 34, 37, 53–4, 126, 131–2 science see criminality and crime scold’s bridle 128 see also branks and ‘branking’ Scotland and the Scots 10, 22, 47, 57, 124–37 sentencing xi, 35, 37, 39, 64, 66–9, 74–5, 80–1, 83, 98–9, 102–3, 105, 113–14, 117–18, 129, 147, 158, 187, 190, 196, 207

serfs see peasants sexualities 21, 23–4, 125, 136, 138n15, 179 shame xi–xiv, 1–13, 17–28, 32–9, 43–57, 59n27, 58n19, 63, 65–6, 69–73, 76–7, 77n13, 105, 124, 126, 129–37, 142, 145, 148, 150n27, 169–80, 205, 209; as ceremony 10, 114–15; and community 34, 50–2, 74, 76, 124–37, 140n65; definitions of 18–21, 44–6, 57n3, 65; dishonourable trades 38–39, 117; gender 10–11, 27, 48, 125–31, 134, 143–5, 147, 168–80; and illegitimacy 25–6, 172, 173–4; as insult 16–28, 184–98; in the legal process 70–71; and modernisation 54; and poverty 55–6, 152–67; as ‘social emotion’ xiv, 7, 27, 46, 51, 53 shaming xi–xiv, 1, 5, 7–12, 19–24, 27–8, 34, 37, 39, 47, 52, 63, 66, 70–2, 74, 76–7, 117–18, 124–7, 129–37, 144, 147, 162, 168–76 Siberia 23, 154, 155, 174, 186, 190 skimmington ride 10, 52, 76, 131–4; see also Ceffyl Pren; ‘stang’, riding the slander xii–xiii, 24–7, 194–5 social control 6, 9, 28, 33, 39 Social Darwinism 162 socialism 160, 164 Spain 28, 84, 118 Stalin and Stalinism xii, 178 ‘stang’, riding the 131–4, 136 state authority 2, 3–4, 6, 7–8, 9–12, 21–2, 35, 98–9, 112, 146, 169, 187, 188–90, 193–4 status and social standing xiv, 18, 24, 26–27, 49–51, 75, 86–7, 103, 116, 117, 130, 141–2, 144, 146, 169, 175, 187 stigma and stigmatisation xi–xiii, 6, 20–1, 32, 34, 38–9, 56, 58n19, 65, 71–6, 97, 125, 131–2, 136, 142, 144, 147, 152, 161 suicide 54–5, 75 Svirskii 157–8 Sycheva, V. 164

228 Index Tarnovskii, E.N. 196 Tasmania 98–104, 106 Tatars 157, 192 Tenishev 169, 173, 175 terror 111–12, 117, 118, 121, 134 theft and robbery 21, 23, 52, 97, 144, 147, 155, 191; thieves and robbers 85, 96–7, 113, 124–125, 208 Thompson, E.P. 14, 125 Tomsk 188, 189, 192 traditions: practices, spectacles and values 4–5, 10–13, 35, 36, 52, 63, 65–6, 68, 70, 71, 84, 96, 114, 116, 117–18, 119, 128, 135, 148n2, 154, 156, 160, 164, 172, 174, 178–80, 186, 195, 205, 209, 210 transportation 9, 81, 96–104, 107nn15, 17 Ukraine and Ukrainians 170, 172, 173, 185 uncivilised societies and conduct 47, 51, 137 see also civilisation United States see America and Americans Vaccination Acts (England) 1851–1908 64, 75 vagrancy and vagrants 33, 72, 85, 102, 156 vendetta 33, 145, 208, 214n33 Venice and Venetians 4, 210 violence xii–xiii, 1–13, 27, 48, 63, 73–5, 83, 100–2, 121, 127, 141–3, 145–8,

148n4, 154, 168, 179–80, 202–3; sexual violence 27, 141–3, 145, 148n4, 151n53 virginity see chastity Vitebsk 157, 172 Vologda 160, 173, 174, 176, 177 volost courts see courts volost offices and authorities 184, 187, 188, 190, 192, Vorizia 205–7, 210, 211 Wales and the Welsh 10, 23, 70, 75, 129, 131–5 war xii, 81, 141–3. 145–8, 177–8, 184–5, 187–8, 192, 193–4, 195–7, 203–4, 209–10, 212–13n15 Warsaw 158, 160 welfare 39, 63–4, 98, 152–4, 161, 165, 193 Western experience/models and Westernisation xii, xiii, 1, 3–8, 11–13, 19, 21, 32, 43, 63, 67, 69, 71, 153, 155, 160, 162–5, 179; de–Westernising xiv, 1, 4–5, 11–12, 165 whores see prostitution witches and witchcraft 23, 128 Wood, John Carter 2 workhouses, almshouses and poorhouses 56, 64, 153–5, 159, 161, 163–4, 166n13, n 36 Zemon Davis, Nathalie 124 Zhbankov, D.N. 161