Thursday 13 April 2023
14.00 - 16.00
Legal Semantics and Practice
Sarah Bloch :
“The Head did not fall on the First Strike”– Public Executions in Switzerland during the 19th Century
The death penalty is still today a current and controversial topic. My PhD project investigates the issue mostly in the 19th century in Switzerland. During this period the death penalty was according to the current law a standard punishment and was carried out publicly (Sig. StAB C 1820). My main ... (Show more)
The death penalty is still today a current and controversial topic. My PhD project investigates the issue mostly in the 19th century in Switzerland. During this period the death penalty was according to the current law a standard punishment and was carried out publicly (Sig. StAB C 1820). My main interest lies in these following research questions: How did the participants, the practices and the discourse of the death penalty in Switzerland change and develop during the 19th century before its abolition? Which reasons made it possible to stage the spectacle publicly until the late 1800 in liberal cantons like Bern, Zurich and Lucerne?
My document collection includes local newspapers, final statements by the delinquents or the priest before and after an execution respectively, interrogation- and council protocols, files of the delinquents, laws, rulings and regulations. This paper will emphasize on where and how executions were performed, staged and how these rituals looked like. It searches for written or oral rules of the procedures. Crucial as well is the social identity of the delinquents.
In Bern, the ‘Ceremoniale’ describes the process and rules of public executions; if those were followed, the event was assessed as a ‘success’ (Sig. StAB A I 525). To underline the state-power and set an example for the spectators, it was necessary that the ‘spectacle of suffering’ took place in public, in front of a large crowd (SPIERENBURG, 1984, p.vii). This raises the question, if these rare public executions were able to fulfil their purpose of deterring the audience and setting an example? To answer this question, it is necessary to investigate on how the people around the scaffold reacted, when witnessing a public execution. What did the coverage of local newspapers look like? Can examples be found in the documents? Did cantonal differences in the practice exist? How did the supporters of the death penalty and the abolitionists argue for and against the punishment? These are decisive factors for investigating the public discourse and how opinion making processes worked.
With regard to the social identity of the criminals I have found some samples of documents of how an interrogation has occurred. These protocols are very important and helpful written testimonies as they offer the delinquents a voice to make their cases heard. One problem concerns the authorship of these documents: who wrote them? Normally it was some clerk, but in this regard, how authentic can they be? Nevertheless, these statements contain information about the social habitant of the criminal, his/her felony, and his/her justification and motive for committing the crime. I want to use these data to create an overview of all the delinquents, who were publicly executed in these three cantons of Bern, Zurich and Lucerne during the 19th century. The chart provides the name, age, marital status, profession, home town, offence as well as how and where they were executed and the exact date. The occupation is a significant piece of information, since it can be an indicator of class affiliation. Accordingly, the question also arises as to whether more people were executed from a certain social class? Were there trends, and if so, how can they be explained and displayed and can the documents support them?
The motivation behind writing this monograph is to produce a new and additional study with alternative perspectives for the research field in Switzerland and Europe as well. (Show less)
Sara Butler :
Inquests of Hate and Spite: what can we Learn about the Medieval English Legal System from Inquests for Bail?
In medieval England, pre-trial bail was not typically an option for those accused of homicide. Ostensibly, a danger to society, accused homicides were expected to spend their time until trial in prison, one hopes atoning for their sins. The only exception to the rule was when the defendant claimed to ... (Show more)
In medieval England, pre-trial bail was not typically an option for those accused of homicide. Ostensibly, a danger to society, accused homicides were expected to spend their time until trial in prison, one hopes atoning for their sins. The only exception to the rule was when the defendant claimed to have been accused both falsely and maliciously. From the late 12th century, it was possible for the defendant (or, more likely, someone on his behalf) to purchase a writ de odio et atya (of hate and spite) commanding the sheriff to assemble a jury for a preliminary inquest into the nature of the accusation. If the jurors determined that the defendant was indeed innocent of the charges, then he was released from prison on bail until his actual trial. The subject of bail, and the accompanying process of the inquest de odio et atya, has received little attention by historians since Elsa de Haas’s 1966 study. Despite de Haas’s attentive scrutiny of the process, there are still questions that remain unanswered: what was the purpose of bail? Was this part of the twelfth century legal revolution’s advocacy of defendants’ rights, refusing to permit the falsely accused to sit in prison for four years until the next eyre? Or, was it about money? Both the inquest and the punishment of sureties when defendants skipped out on bail would seem to have been a valuable source of income for the crown. How likely were juries to decide in favor of bail? Did the nature of the accusation (whether it sprang from a private appeal, or a public indictment) have any impact on the pattern of those who were granted bail? Is it possible that the inquest de odio et atya was part of the crown’s larger campaign to whittle away at the legitimacy of the appeal (that is, private prosecution)? What were jurors’ standards for evidence when it comes to determining who should be released on bail? How much can these trials tell us about the refinement of the categories of excusable and unexcusable felony, as well as the distinction between murder and homicide? This paper hopes to answer these questions using evidence drawn from the 2,245 surviving inquests de odio et atya (held at The National Archives in the C 144 classification). (Show less)
Christian De Vito :
Sedimented Norms and Punitive Practices in the Eighteenth-century Spanish Empire
In eighteenth-century lawsuits across the Spanish empire, prosecutors, lawyers and the accused referred to legal, canonical and moral sources spanning from the Bible and Medieval Canons to Roman law, "immemorial" indigenous “customs” and sixteenth-century jurists in order to legitimize or contest punishment. This paper looks closely into some of these ... (Show more)
In eighteenth-century lawsuits across the Spanish empire, prosecutors, lawyers and the accused referred to legal, canonical and moral sources spanning from the Bible and Medieval Canons to Roman law, "immemorial" indigenous “customs” and sixteenth-century jurists in order to legitimize or contest punishment. This paper looks closely into some of these lawsuits and asks, among other things: how these references were selected and how they changed across time; how their ranges shifted vis-à-vis distinct types of lawsuits, courts and crimes; at which specific stages of the trial they were mentioned; and what role they played in the discursive strategies around punishment.
By investigating how distinct norms produced at various moments in history came together, and were played against each other, within specific lawsuits, this paper seeks to contribute to ongoing debates on: legal pluralism/multi-normativity; the transmission, circulation and discontinuity of norms; and the practices and legitimation of punishment.
The presentation is based on sources held at the Archivo General de Indias (Seville), the Archivo Nacional del Ecuador (Quito) and the Archivo General de la Nación and the Archivo Arzobispal of Lima. (Show less)
Diogo Paiva :
Perspectives on the Mortality of Portuguese Convicts in the 19th Century and Degredo as a Death Sentence in Disguise
The Degredo was a penal transportation system put in place by the Portuguese crown to punish serious crimes, such as murder, rape, or theft. Its origins go back as far as the Middle Ages, and it has persisted until the prelude of the Second World War. Such longevity made a ... (Show more)
The Degredo was a penal transportation system put in place by the Portuguese crown to punish serious crimes, such as murder, rape, or theft. Its origins go back as far as the Middle Ages, and it has persisted until the prelude of the Second World War. Such longevity made a deep impression in the mentality of Portuguese subjects and still today people refer to it as an expression of banishment or deprivation. Along with the idea of Desterro, another penal displacement of the Portuguese dictatorship, the relation to death is direct. In our memory, one would perceive going to degredo as a sort of one-way ticket to an infernal land, where death was close to unavoidable.
This grim perspective might be an exaggeration, however, mixed by real information and stories of those who were waiting to be shipped overseas. Was this real? Or did this idea of death served the purpose of deterrence of crime? How a system that was discussed as a form of settlement and colonization can also be a promoter of death among those it intends to use as colonization agents? And to what extent much of the representation of death in degredo permeated the historiographic analysis?
In the second half of the 19th century, the African colonies received a substantial number of convicts from Portugal. Upon being convicted, despite avoiding a formal capital punishment, those sentenced to degredo faced a perilous journey from the moment of being convicted until the end of the sentence. Serving the sentence meant being detained for weeks, while waiting to depart, embarking in a ship, and traveling imprisoned in the lower deck for a few months until reaching the destination and then surviving variable harsh conditions of sub-Saharan African territories. This paper takes into account the available data to establish the mortality hazard by using individual life course analysis, defining the risk of death at each stage of a convict’s path considering its origin, sex, age and destination. This demographic approach is then combined with an analysis on the representation of death and its association with the penal transportation, the mechanisms used by the convicts to minimize the risk of dying and the policies applied by the State to avoid high death numbers. It is from the discussion of both approaches, with an understanding of the role played by death in Portuguese penal transportation system, that one can evaluate the successes and failures of the degredo in the 19th century. (Show less)