(excerpted by Clifford Stetner)

 

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...not difficult to understand that an animal found this place warmer than elsewhere’ (quoted in Zevaes, 201—14).
 

Eighty years later, Leon Fauchei - drew up his rules ‘for the House of young prisoners in Paris’:
 

'Art. 17. The prisoners’ day will begin at six in the morning in winter and at five in summer. They will work for nine hours a day throughout the year. Two hours a day will be devoted to instruction. Work and the day will end at nine o’clock in winter and at eight in summer.
 

Art. 18. Rising. At the first drum-roll, the prisoners must rise and dress in silence, as the supervisor opens the cell doors. At the second drum-roll, they must be dressed and make their beds. At the third, they must line up and proceed to the chapel for morning prayer. There is a five-minute interval between each drum-roll.
 

Art. 19. The prayers are conducted by the chaplain and followed by a moral or religious reading. This exercise must not last more than half an hour.
 

Art. 20. Work. At a quarter to six in the summer, a quarter to seven in winter, the prisoners go down into the courtyard where they must wash their hands and faces, and receive their first ration of bread. Immediately afterwards, they form into work-teams and go off to work, which must begin at six in summer and seven in winter.
 

Art. 21. Meal. At ten o’clock the prisoners leave their work and go to the refectory; they wash their hands in their courtyards and assemble in divisions. After the dinner, there is recreation until twenty minutes to eleven.
 

Art. 22. School. At twenty minutes to eleven, at the drum-roll, the prisoners form into ranks, and proceed in divisions to the school. The class lasts two hours and consists alternately of reading, writing, drawing and arithmetic.
 

Art. 23. At twenty minutes to one, the prisoners leave the school, in divisions, and return to their courtyards for recreation. At five minutes to one, at the drum-roll, they form into work-teams.
 

Art. 24. At one o’clock they must be back in the workshops: they work until four o’clock.
 

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Art. 25. At four o’clock the prisoners leave their workshops and go into the courtyards where they wash their hands and form into divisions for the refectory.
 

Art. 26. Supper and the recreation that follows it last until live o’clock: the prisoners then return to the workshops.
 

Art. 27. At seven o’clock in the summer, at eight in winter, work stops; bread is distributed for the last time in the workshops. For a quarter of an hour one of the prisoners or supervisors reads a passage from some instructive or uplifting work. This is followed by evening prayer.
 

Art. 28. At half-past seven in summer, half-past eight in winter, the prisoners must be back in their cells after the washing of hands and the inspection of clothes in the courtyard; at the first drum-roll, they must undress, and at the second get into bed. The cell doors are closed and the supervisors go the rounds in the corridors, to ensure order and silence’ (Faucher, 274-82).
 

We have, then, a public execution and a time-table. They do not punish the same crimes or the same type of delinquent. But they each define a certain penal style. Less than a century separates them. It was a time when, in Europe and in the United States, the entire economy of punishment was redistributed. It was a time of great ‘scandals’ for traditional justice, a time of innumerable projects for reform. It saw a new theory of law and crime, a new moral or political justification of the right to punish; old laws were abolished, old customs died out...
 

Today we are rather inclined to ignore it; perhaps, in its time, it gave rise to too much inflated rhetoric; perhaps it has been attributed too readily and too emphatically to a process of ‘humanization’, thus dispensing with the need for further analysis. And, in any case, how important is such a change, when compared with the great institutional transformations, the formulation of explicit, general codes and unified rules of procedure; with the almost universal adoption of the jury system, the definition of
 

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the essentially corrective character of the penalty and the tendency, which has become increasingly marked since the nineteenth century, to adapt punishment to the individual offender? Punishment of a less immediately physical kind, a certain discretion in the art of inflicting pain, a combination of more subtle, more subdued sufferings, deprived of their visible display, should not all this be treated as a special case, an incidental effect of deeper changes? And yet the fact remains that a few decades saw the disappearance of the tortured, dismembered, amputated body, symbolically branded on face or shoulder, exposed alive or dead to public view. The body as the major target of penal repression disappeared.
 

By the end of the eighteenth and the beginning of the nineteenth century, the gloomy festival of punishment was dying out, though here and there it flickered momentarily into life. In this transformation, two processes were at work. They did not have quite the same chronology or the same raison d’être. The first was the disappearance of punishment as a spectacle. The ceremonial of punishment tended to decline; it survived only as a new legal or administrative practice. The amende honorable was first abolished in France in 1791, then again in 1830 after a brief revival; the pillory was abolished in France in 1789 and in England in 1837. The use of prisoners in public works, cleaning city streets or repairing the highways, was practised in Austria, Switzerland and certain of the United States, such as Pennsylvania. These convicts, distinguished by their ‘infamous dress’ and shaven heads, ‘were brought before the public. The sport of the idle and the vicious, they often become incensed, and naturally took violent revenge upon the aggressors. To prevent them from returning injuries which might be inflicted on them, they were encumbered with iron collars and chains to which bomb-shells were attached, to be dragged along while they performed their degrading service, under the eyes of keepers armed with swords, blunderbusses and other weapons of destruction’ (Roberts Vaux, Notices, 21, quoted in Teeters, 1937, 24). This practice was abolished practically everywhere at the end of the eighteenth or the beginning of the nineteenth century. The public exhibition of prisoners was maintained in France in 1831, despite violent criticism — ‘a disgusting scene’, said Real (cf. Bibliography); it was finally abolished in April 1848. While the chain-gang, which had dragged convicts
 

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across the whole of France, as far as Brest and Toulon, was replaced in 1837 by inconspicuous black-painted cell-carts. Punishment had gradually ceased to be a spectacle. And whatever theatrical elements it still retained were now downgraded, as if the functions of the penal ceremony were gradually ceasing to be understood, as if this rite that ‘concluded the crime’ was suspected of being in some undesirable way linked with it. It was as if the punishment was thought to equal, if not to exceed, in savagery the crime itself, to accustom the spectators to a ferocity from which one wished to divert them, to show them the frequency of crime, to make the executioner resemble a criminal, judges murderers, to reverse roles at the last moment, to make the tortured criminal an object of pity or admiration. As early as 1764, Beccaria remarked: ‘The murder that is depicted as a horrible crime is repeated in cold blood, remorselessly’ (Beccaria, 101). The public execution is now seen as a hearth in which violence bursts again into flame.
 

Punishment, then, will tend to become the most hidden part of the penal process. This has several consequences: it leaves the domain of more or less everyday perception and enters that of abstract consciousness; its effectiveness is seen as resulting from its inevitability, not from its visible intensity; it is the certainty of being punished and not the horrifying spectacle of public punishment that must discourage crime; the exemplary mechanics of punishment changes its mechanisms. As a result, justice no longer takes public responsibility for the violence that is bound .up with its practice. If it too strikes, if it too kills, it is not as a glorification of its strength, but as an element of itself that it is obliged to tolerate, that it finds difficult to account for. The apportioning of blame is redistributed:
 

In punishment-as-spectacle a confused horror spread from the scaffold; it enveloped both executioner and condemned; and, although it was always ready to invert the shame inflicted on the victim into pity or glory, it often turned the legal violence of the executioner into shame. Now the scandal and the light are to be distributed differently; it is the conviction itself that marks the offender with the unequivocally negative sign: the publicity has shifted to the trial, and to the sentence; the execution itself is like an additional shame that justice is ashamed to impose on the condemned man: so it keeps its distance from the act. tending always to
 

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entrust it to others, under the seal of secrecy. It is ugly to be punishable, but there is no glory in punishing. Hence that double system of protection that justice has set up between itself and the punishment it imposes. Those who carry out the penalty tend to become an autonomous sector; justice is relieved of responsibility for it by a bureaucratic concealment of the penalty itself. It is typical that in France the administration of the prisons should for so long have been the responsibility of the Ministry of the Interior, while responsibility for the bagnes, for penal servitude in the convict ships and penal settlements, lay with the Ministry of the Navy or in the Ministry of the Colonies. And beyond this distribution of roles operates a theoretical disavowal: do not imagine that the sentences that we judges pass are activated by a desire to punish; they are intended to correct, reclaim, ‘cure’; a technique of improvement represses, in the penalty, the strict expiation of evil-doing, and relieves the magistrates of the demeaning task of punishing. In modern justice and on the part of those who dispense it there is a ...shame in punishing, which does not always preclude zeal. This sense of shame is constantly growing: the psychologists and the minor civil servants of moral orthopaedics proliferate on the wound it leaves.
 

The disappearance of public executions marks therefore the decline of the spectacle; but it also marks a slackening of the hold on the body. In 1787, in an address to the Society for Promoting Political Enquiries, Benjamin Rush remarked: ‘I can only hope that the time is not far away when gallows, pillory, scaffold, flogging and wheel will, in the history of punishment, be regarded as the marks of the barbarity of centuries and of countries and as proofs of the feeble influence of reason and religion over the human mind’ (Teeters, 1935, 30). Indeed, sixty years later, Van Meenen, opening the second penitentiary congress, in Brussels, recalled the time of his childhood as of a past age: ‘I have seen the ground strewn with wheels, gibbets, gallows, pillories; I have seen hideously stretched skeletons on wheels’ .... Branding had been abolished in England (1834) and in France (1832); in 1800, England no longer dared to apply the full punishment reserved for traitors (Thistlewood was not quartered). Only flogging still remained in a number of penal systems (Russia, England, Prussia). But, generally
 

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speaking, punitive “practices had become more reticent. One no longer touched the body, or at least as little as possible, and then only to reach something other than the body itself. It might be objected that imprisonment, confinement, forced labour, penal servitude, prohibition from entering certain areas, deportation—which have occupied so important a place in modern penal systems—are ‘physical’ penalties: unlike fines, for example, they directly affect the body. But the punishment-body relation is not the same as it was in the torture during public executions. The body now serves as an instrument or intermediary: if one intervenes upon it to imprison it, or to make it work, it is in order to deprive the individual of a liberty that is regarded both as a right and as property. The body, according to this penality, is caught up in a system of constraints and privations, obligations and prohibitions. Physical pain, the pain of the body itself, is no longer the constituent element of the penalty. From being an art of unbearable sensations punishment has become an economy of suspended rights. If it is still necessary for the law to reach and manipulate the body of the convict, it will be at a distance, in the proper way, according to strict rules, and with a much ‘higher’ aim. As a result of this new restraint, a whole army of technicians took over from the executioner, the immediate anatomist of pain: warders, doctors, chaplains, psychia­trists, psychologists, educationalists; by their very presence near the prisoner, they sing the praises that the law needs: they reassure it that the body and pain are not the ultimate objects of its punitive action. Today a doctor must watch over those condemned to death, right up to the last moment — thus juxtaposing himself as the agent of welfare, as the alleviator of pain, with the official whose task it is to end life. This is worth thinking about. When the moment of execution approaches, the patients are injected with tranquilizers. A utopia of judicial reticence: take away life, but prevent the patient from feeling it; deprive the prisoner of all rights, but do not inflict pain; impose penalties free of all pain. Recourse to psycho- pharmacology and to various physiological ‘disconnectors’, even if it is temporary, is a logical consequence of this ‘non-corporal’ penality.
 

The modern rituals of execution attest to this double process: the disappearance of the spectacle and the elimination of pain. The same movement has affected the various European legal systems...
 

...There are no longer any of those long processes in which death was both retarded by calculated interruptions and multiplied by a series of successive attacks. There are no longer any of those combinations of tortures that were organized for the killing of regicides...
 

1760...procession from Newgate to Tyburn was abolished...French code of 1791—‘Every man condemned to death will have his head cut off’...
 

...guillotine...Contact between the law, or those who carry it out, and the body of the criminal, is reduced to a split second.
 

It is intended to apply the law not so much to a real body capable of feeling pain as to a juridical subject, the possessor, among other rights, of the right to exist. It had to have the abstraction of the law itself.
 

the crime — and that crime must be faceless. (the more monstrous a criminal was, the more he must be deprived of light: he must not see, or be seen. This was a common enough notion at the time. For the parricide one should ‘construct an iron cage or dig an impenetrable dungeon that would serve him as an eternal retreat’ — De Mokne, 275-7.) The last vestige of the great public execution was its annulment: a drapery to hide a body. Benoit, triply infamous (his mother’s murderer, a homosexual, an assassin), was the first of the parricides not to have a hand cut off: ‘As the sentence was being read, he stood on the scaffold supported by the executioners. It was a horrible sight; wrapped in a large white shroud, his face covered with black crêpe, the parricide escaped the gaze of the silent crowd, and beneath these mysterious and gloomy clothes, life was manifested only by frightful cries, which soon expired under the knife’ (Gazette des trihunaux, 30 August 832).
 

At the beginning of the nineteenth century, then, the great spectacle of physical punishment disappeared; the tortured body was avoided; the theatrical representation of pain was excluded from punishment. The age of sobriety in punishment had begun. By 1830-48, public executions, preceded by torture, had almost entirely disappeared. Of course, this generalization requires some qualification. To begin with, the changes did not come about at once or as part of a single process. There were delays. Paradoxically, England was one of the countries most loath to see the disappearance of the public execution: perhaps because of the role of model that the institution of the jury, public hearings and respect of habeas corpus had given to her criminal law; above all, no doubt, because she did not wish to diminish the rigour of her penal laws during the great social disturbances of the years 1780-1820. For a long time Romilly, Mackintosh and Fowell Buxton failed in their attempts to attenuate the multiplicity and severity of the penalties laid down by English law — that ‘horrible butchery’, as Rossi described it. Its severity (in fact, the juries regarded the penalties laid down as excessive and were consequently more lenient in their application) had even increased: in 1760, Blackstone had listed 160 capital crimes in English legislation, while by 1819 there were 223. One should also take into account the advances and retreats that the process as a whole underwent between 1760 and 1840; the rapidity of reform
 

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in certain countries such as Austria, Russia, the United States, France under the Constituent Assembly, then the retreat at the time of the counter-revolutions in Europe and the great social fear of the years 1820-48; more or less temporary changes introduced by emergency courts or laws; the gap between the laws and the real practice of the courts (which was by no means a faithful reflection of the state of legislation). All these factors account for the irregularity of the transformation that occurred at the turn of the century.
 

It should be added that, although most of the changes had been achieved by 1840, although the mechanisms of punishment had by then assumed their new way of functioning, the process was far from complete. The reduction in the use of torture was a tendency that was rooted in the great transformation of the years 1760-1840, but it did not end there; it can be said that the practice of the public execution haunted our penal system for a long time and still haunts it today. In France, the guillotine, that machine for the production of rapid and discreet deaths, represented a new ethic of legal death. But the Revolution had immediately endowed it with a great theatri­cal ritual. For years it provided a spectacle. It had to be removed to the Barriere Saint-Jacques; the open cart was replaced by a closed carriage; the condemned man was hustled from the vehicle straight to the scaffold; hasty executions were organized at unexpected times. In the end, the guillotine had to be placed inside prison walls and made inaccessible to the public (after the execution of Weidmann in 1939), by blocking the streets leading to the prison in which the scaffold was hidden, and in which the execution would take place in secret (the execution of Buffet and Bontemps at the Santa in 1972). Witnesses who described the scene could even be prosecuted, thereby ensuring that the execution should cease to be a spectacle and remain a strange secret between the law and those it condemns. One has only to point out so many precautions to realize that capital punishment remains fundamentally, even today, a spectacle that must actually be forbidden.
 

Similarly, the hold on the body did not entirely disappear in the mid-nineteenth century. Punishment had no doubt ceased to be centred on torture as a technique of pain; it assumed as its principal object loss of wealth or rights. But a punishment like forced labour or even imprisonment — mere loss of liberty — has never functioned without a certain additional element of punishment that certainly concerns the body itself: rationing of food, sexual deprivation, corporal punishment, solitary confinement. Are these the unintentional, but inevitable, consequence of imprisonment? In fact, in its most explicit practices, imprisonment has always involved a certain degree of physical pain. The criticism that was often leveled at the penitentiary system in the early nineteenth century (imprisonment is not a sufficient punishment: prisoners are less hungry, less cold, less deprived in general than many poor people or even workers) suggests a postulate that was never explicitly denied: it is just that a condemned man should suffer physically more than other men. It is difficult to dissociate punishment from additional physical pain. What would a non- corporal punishment be?
 

There remains, therefore, a trace of ‘torture’ in the modern mechanisms of criminal justice — a trace that has not been entirely overcome, but which is enveloped, increasingly, by the non-corporal nature of the penal system.
 

The reduction in penal severity in the last 200 years is a phenomenon with which legal historians are well acquainted. But, for a long time, it has been regarded in an overall way as a quantitative phenomenon: less cruelty, less pain, more kindness, more respect, more humanity’. In fact, these changes are accompanied by a displacement in the very object of the punitive operation. Is there a diminution of intensity? Perhaps. There is certainly a change of objective.
 

If the penality in its most severe forms no longer addresses itself to the .body, on what does it lay hold? The answer of the theoreticians — those who, about 1760, opened up a new period that is not yet at an end — is simple, almost obvious. It seems to be contained in the question itself: since it is no longer the body, it must be the soul. The expiation that once rained down upon the body must be replaced by a punishment that acts in depth on the heart, the thoughts, the will, the inclinations. Mably formulated the principle once and for all: ‘Punishment, if I may so put it, should strike the soul rather than the body’ (Mably, 326).
 

It was an important moment. The old partners of the spectacle of punishment, the body and the blood, gave way. A new character came on the scene, masked. It was the end of a certain kind of tragedy; comedy began, with shadow play, faceless voices, impalpable entities. The apparatus of punitive justice must now bite into this bodiless reality.
 

Is this any more than a mere theoretical assertion, contradicted by penal practice? Such a conclusion would be over-hasty. It is true that, today, to punish is not simply a matter of converting a soul; but Mably’s principle has not remained a pious wish, Its effects can he felt throughout modern penality.
 

To begin with, there is a substitution of objects. By this I do not mean that one has suddenly set about punishing other crimes. No doubt the definition of offences, the hierarchy of their seriousness, the margins of indulgence, what was tolerated in fact and what was legally permitted — all this has considerably changed over the last 200 years; many crimes have ceased to be so because they were bound up with a certain exercise of religious authority or a particular type of economic activity; blasphemy has lost its status as a crime; smuggling and domestic larceny some of their seriousness. But these displacements are perhaps not the most important fact; :the division between the permitted and the forbidden has preserved a certain constancy from one century to another. On the other hand, ‘crime’, the object with which penal practice is concerned, has profoundly altered: the quality, the nature, in a sense the substance of which the punishable element is made, rather than its formal definition. Undercover of the relative stability of the law, a mass of subtle and rapid changes has occurred. Certainly the ‘crimes’ and ‘offences’ on which judgment is passed are juridical objects defined by the code, but judgment is also passed on the passions, instincts, anomalies, infirmities, maladjustments, effects of environment or heredity; acts of aggression are punished, so also, through them, is aggressivity; rape, but at the same time perversions; murders, but also drives and desires. But, it will be objected, judgment is not actually being passed on them; if they are referred to at all it is to explain the actions in question, and to determine to what extent the subject’s will was involved in the crime. This is no answer. For it is these shadows lurking behind the case itself that are judged and punished. They are judged indirectly as ‘attenuating circumstances’ that introduce into the verdict not only ‘circumstantial’ evidence,
 

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but something quite different, which is not juridically codifiable: the knowledge of the criminal, one’s estimation of him, what is known about the relations between him, his past and his crime, and what might be expected of him in the future. They are also judged by the interplay of all those notions that have circulated between medicine and jurisprudence since the nineteenth century (the ‘monsters’ of Georget’s times, Chaumie’s ‘psychical anomalies’, the ‘perverts’ and ‘maladjusted’ of our own experts) and which, behind the pretext of explaining an action, are ways of defining an individual. They are punished by means of a punishment that has the function of making the offender ‘not only desirous, but also capable, of living within the law and of providing for his own needs’; they are punished by the internal economy of a penalty which, while intended to punish the crime, may be altered (shortened or, in certain cases, extended) according to changes in the prisoner's behaviour; and they are punished by the security measures that accompany the penalty (prohibition of entering certain areas, probation, obligatory medical treatment), and which are intended not to punish the offence, but to supervise the individual, to neutralize his dangerous state of mind, to alter his criminal tendencies, and to continue even when this change has been achieved. The criminal’s soul is not referred to in the trial merely to explain his crime and as a factor in the juridical apportioning of responsibility; if it is brought before the court, with such pomp and circumstance, such concern to understand and such ‘scientific’ application, it is because it too, as well as the crime itself, is to be judged and to share in the punishment. Throughout the penal ritual, from the preliminary investigation to the sentence and the final effects of the penalty, a domain has been penetrated by objects that not only duplicate, but also dissociate the juridically defined and coded objects. Psychiatric expertise, but also in a more general way criminal anthropology and the repetitive discourse of criminology, find one of their precise functions here: by solemnly inscribing offences in the field of objects susceptible of scientific knowledge, they provide the mechanisms of legal punishment with a justifiable hold not only on offences, but on individuals; not only on what they do, but also on what they are, will be, may be. The additional factor of the offender’s soul, which the legal system has laid hold of, is only apparently explanatory and limitative, and is in fact expansionist. During the 100 or 200 years that Europe has been setting up its new penal systems, the judges have gradually, by means of a process that goes back very far indeed, taken to judging something other than crimes, namely, the soul of the criminal.
 

And, by that very fact, they have begun to do something other than pass judgment. Or, to be more precise, within the very judicial modality of judgment, other types of assessment have slipped in, profoundly altering its rules of elaboration. Ever since the Middle Ages slowly and painfully built up the great procedure of investigation, to judge was to establish the truth of a crime, it was to determine its author and to apply a legal punishment. Knowledge of the offence, knowledge of the offender, knowledge of the law: these three conditions made it possible to ground a judgment in truth. But now a quite different question of truth is inscribed in the course of the penal judgment. The question is no longer simply: ‘Has the act been established and is it punishable?’ But also: “What is this act, what is this act of violence or this murder? To what level or to what field of reality does it belong? Is it a phantasy, a psychotic reaction, a delusional episode, a perverse action?’ It is no longer simply: ‘Who committed it?’ But: ‘How can we assign the causal process that produced it? Where did it originate in the author himself? Instinct, unconscious, environment, heredity? It is no longer simply: ‘What law punishes this offence?’ But: “What would be the most appropriate measures to take? How do we see the future development of the offender? What would be the best way of rehabilitating him?’ A whole set of assessing, diagnostic, prognostic, normative augments concerning the criminal have become lodged in the framework of penal judgment. Another truth has penetrated the truth that was required by the legal machinery; a truth which, entangled with the first, has turned the assertion of guilt into a strange scientifico-juridical complex. A significant fact is the way in which the question of madness has evolved in penal practice. According to the 1810 code, madness was dealt with only in terms of article 64. Now this article states that there is neither crime nor offence if the offender was of unsound mind at the time of the act. The possibility of ascertaining madness was, therefore, a quite separate matter from the definition of an act as a crime; the gravity of the act was not
 

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altered by the fact that its author was insane, nor the punishment reduced as a consequence; the crime itself disappeared. It was impossible, therefore, to declare that someone was both guilty and mad; once the diagnosis of madness had been accepted, it could not be included in the judgment; it interrupted the procedure and loosened the hold of the law on the author of the act. Not only the examination of the criminal suspected of insanity, but the very effects of this examination had to he external and anterior to the sentence. But, very soon, the courts of the nineteenth century began to misunderstand the meaning of article 64. Despite several decisions of the supreme court of appeal confirming that insanity could not result either in a light penalty, or even in an acquittal, but required that the case be dismissed, the ordinary courts continued to bring the question of insanity to bear on their verdicts. They accepted that one could be both guilty and mad; less guilty the madder one was; guilty certainly, but someone to be put away and treated rather than punished; not only a guilty man, but also dangerous, since quite obviously sick etc. From the point of view of the penal code, the result was a mass of juridical absurdities. But this was the starting point of an evolution that jurisprudence and legislation itself was to precipitate in the course of the next 100 years: already the reform of 1832, introducing attenuating circumstances, made it possible to modify the sentence according to the supposed degrees of an illness or the forms of a semi-insanity. And the practice of calling on psychiatric expertise, which is widespread in the assize courts and sometimes extended to courts of summary jurisdiction, means that the sentence, even if it is always formulated in terms of legal punishment; implies, more or less obscurely, judgements of normality, attributions of causality, assessments of possible changes, anticipations as to the offender’s future. It would be wrong to say that all these operations give substance to a judgment from the outside; they are directly integrated in the process of forming the sentence. Instead of insanity eliminating the crime according to the original meaning of article 64, every crime and even every offence now carries within it, as a legitimate suspicion, but also as a right that may be claimed, the hypothesis of insanity, in any case of anomaly. And the sentence that condemns or acquits is not simply a judgment of guilt, a legal decision that lays down punishment; it bears within it an assessment of normality and a technical prescription for a possible normalization. Today the judge — magistrate or juror — certainly does more than ‘judge’.
 

And he is not alone in judging. Throughout the penal procedure and the implementation of the sentence there swarms a whole series of subsidiary authorities. Small-scale legal systems and parallel judges have multiplied around the principal judgment: psychiatric or psychological experts, magistrates concerned with the implementation of sentences, educationalists, members of the prison service, all fragment the legal power to punish; it might be objected that none of them really shares the right to judge; that some, after sentence is passed, have no other right than to implement the punishment laid down by the court and, above all, that others — the experts — intervene before the sentence not to pass judgment, but to assist the judges in their decision. But as soon as the penalties and the security measures defined by the court are not absolutely determined, from the moment they may be modified along the way, from the moment one leaves to others than the judges of the offence the task of deciding whether the condemned man ‘deserves to be placed in semi-liberty or conditional liberty, whether they may bring his penal tutelage to an end, one is handing over to them mechanisms of legal punishment to be used at their discretion: subsidiary judges they may be, but they are judges all the same. The whole machinery that has been developing for years around the implementation of sentences, and their adjustment to individuals, creates a proliferation of the authorities of judicial decision- making and extends its powers of decision well beyond the sentence. The psychiatric experts, for their part, may well refrain from judging. Let us examine the three questions to which, since the 19X8 ruling, they have to address themselves: Does the convicted person represent a danger to society? Is he susceptible to penal punishment? Is he curable or readjustable? These questions have nothing to do with article 64, nor with the possible insanity of the convicted person at the moment of the act. They do not concern ‘responsibility’. They concern nothing but the administration of the penalty, its necessity, its usefulness, its possible effectiveness; they make it possible to show, in an almost transparent vocabulary, whether the mental hospital would be a more suitable place of confinement than the prison, whether this confinement should be short or long, whether medical treatment or security measures are called for. ‘What, then, is the role of the psychiatrist in penal matters? He is not an expert in responsibility, but an adviser on punishment; it is up to him to say whether the subject is ‘dangerous’, in what way one should be protected from him, how one should intervene to alter him, whether it would be better to try to force him into submission or to treat him. At the very beginning of its history, psychiatric expertise was called upon to formulate ‘true’ propositions as to the part that the liberty of the offender had played in the act he had committed; it is now called upon to suggest a prescription for what might be called his ‘medicojudicial treatment’.
 

To sum up, ever since the new penal system — that defined by the great codes of the eighteenth and nineteenth centuries — has been in operation, a general process has led judges to judge something other than crimes; they have been led in their sentences to do something other than judge; and the power of judging has been transferred, in part, to other authorities than the judges of the offence. The whole penal operation has taken on extra-juridical elements and personnel. It will be said that there is nothing extraordinary in this, that it is part of the destiny of the law to absorb little by little elements that are alien to it. But what is odd about modern criminal justice is that, although it has taken on so many extra-juridical elements, it has done so not in order to be able to define them juridically and gradually to integrate them into the actual power to punish: on the contrary, it has done so in order to make them function within the penal operation as non-juridical elements; in order to stop this operation being simply a legal punishment; in order to exculpate the judge from being purely and simply he who punishes. Of course, we pass sentence, but this sentence is not in direct relation to the crime. It is quite clear that for us it functions as a way of treating a criminal. We punish, but this is a way of saying that we wish to obtain a cure. Today, criminal justice functions and justifies itself only by this perpetual reference to something other than itself by this unceasing reinscription in non-juridical systems. Its fate is to be redefined by knowledge.
 

Beneath the increasing leniency of punishment, then, one may map a displacement of its point of application; and through this displacement, a whole field of recent objects, a whole new system of truth and a mass of roles hitherto unknown in the exercise of criminal justice. A corpus of knowledge, techniques, ‘scientific’ discourses is formed and becomes entangled with the practice of the power to punish.
 

This book is intended as a correlative history of the modern soul and of a new power to judge; a genealogy of the present scientifico-legal complex from which the power to punish derives its bases, justifications and rules, from which it extends its effects and by which it masks its exorbitant singularity.
 

But from what point can such a history of the modern soul on trial be written? If one confined oneself to the evolution of legislation or of penal procedures, one would run the risk of allowing a change in the collective sensibility, an increase in humanization or the development of the human sciences to emerge as a massive, external, inert and primary fact. By studying only the general social forms, as Durkheim did (cf. Bibliography), one runs the risk of positing as the principle of greater leniency in punishment processes of individualization that are rather one of the effects of the new tactics of power, among which are to be included the new penal mechanisms. This study obeys four general rules:
 

1. Do not concentrate the study of the punitive mechanisms on their ‘repressive’ effects alone, on their ‘punishment’ aspects alone, but situate them in a whole series of their possible positive effects, even if these seem marginal at first sight. As a consequence, regard punishment as a complex social function.
 

2. Analyse punitive methods not simply as consequences of legislation or as indicators of social structures, but as techniques possessing their own specificity in the more general field of other ways of exercising power. Regard punishment as a political tactic.
 

3. Instead of treating the history of penal law and the history of the human sciences as two separate series whose overlapping appears to have had on one or the other, or perhaps on both, a disturbing or useful effect, according to one’s point of view, see whether there is not some common matrix or whether they do not both derive from a single process of‘epistemologico- juridical’ formation; in short, make the technology of power the very principle both of the humanization of the penal system and of the knowledge of man.
 

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4. Try to discover whether this entry of the soul on to the scene of penal justice, and with it the insertion in legal practice of a whole corpus of ‘scientific’ knowledge, is not the effect of a transformation of the way in which the body itself is invested by power relations.
 

In short, try to study the metamorphosis of punitive methods on the basis of a political technology of the body in which might be read a common history of power relations and object relatios. Thus, by an analysis of penal leniency as a technique of power, one might understand both how man, the soul, the normal or abnormal individual have come to duplicate crime as objects of penal intervention; and in what way a specific mode of subjection was able to give birth to man as an object of knowledge for a discourse with a ‘scientific’ status.
 

But I am not claiming to be the first to have worked in this direction.
 

Rusche and Kirchheimer’s great work, Punishment and Social Structures, provides a number of essential reference points. We must first rid ourselves of the illusion that penality is above all (if not exclusively) a means of reducing crime and that, in this role, according to the social forms, the political systems or beliefs, it may be severe or lenient, tend towards expiation of obtaining redress, towards the pursuit of individuals or the attribution of collective responsibility. We must analyse rather the ‘concrete systems of punishment’, study them as social phenomena that cannot be accounted for by the juridical structure of society alone, nor by its fundamental ethical choices; we must situate them in their field of operation, in which the punishment of crime is not the sole element; we must show that punitive measures are not simply ‘negative’ mechanisms that make it possible to repress, to prevent, to exclude, to eliminate; but that they are linked to a whole series of positive and useful effects which it is their task to support (and, in this sense, although legal punishment is carried out in order to punish offences, one might say that the definition of offences and their prosecution are carried out in turn in order to maintain the punitive mechanisms and their functions). From this point of view, Rusche and Kirchheimer relate the different systems of punishment with the systems of production within which they operate: thus, in a slave economy,
 

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punitive mechanisms serve to provide an additional labour force —and to constitute a body of civil slaves in addition to those provided by war or trading; with feudalism, at a time when money and production were still at an early stage of development, we find a sudden increase in corporal punishments — the body being in most cases the only property accessible; the penitentiary (the Hospital... the Spinhuis or the Rasphuis), forced labour and the prison factory appear with the development of the mercantile economy. But the industrial system requires a free market in labour and, in the nineteenth century, the role of forced labour in the mechanisms of punishment diminishes accordingly and ‘corrective’ detention takes its place. There are no doubt a number of observations to be made about such a strict correlation.
 

But we can surely accept the general proposition that, in our societies, the systems of punishment are to be situated in a certain ‘political economy’ of the body: even if they do not make use of violent or bloody punishment, even when they use ‘lenient’ methods involving confinement or correction, it is always the body that is at issue — the body and its forces, their utility and their docility, their distribution and their submission. It is certainly legitimate to write a history of punishment against the background of moral ideas or legal structures. But can one write such a history against the background of a history of bodies, when such systems of punishment claim to have only the secret souls of criminals as their objective?
 

Historians long ago began to write the history of the body. They. have studied the body in the field of historical demography or pathology; they have considered it as the seat of needs and appetites, as the locus of physiological processes and metabolisms, as a target for the attacks of germs or viruses; they have shown to what extent historical processes were involved in what might seem to be the purely biological base of existence; and what place should be given in the history of society to biological ‘events’ such as the circulation of bacilli, or the extension of the life-span (cf. Le Roy-Ladurie). But the body is also directly involved in a political field; power relations have an immediate hold upon it; they invest it, mark it, train it, torture it, force it to carry out tasks, to perform ceremonies, to emit signs. This political investment of the body is bound up, in accordance with complex reciprocal relations, with its economic use; it is largely as a force of production that the body is invested with relations of power and domination; but, on the other hand, its constitution as labour power is possible only if it is caught up in a system of subjection (in which need is also a political instrument meticulously prepared, calculated and used); the body becomes a useful force only it is both a productive body and a subjected body. This subjection is not only obtained by the instruments of violence or ideology; it can also be direct, physical, pitting force against force, bearing on material elements, and yet without involving violence; it may be calculated, organized, technically thought out; it may be subtle, make use neither of weapons nor of terror and yet remain of a physical order. That is to say, there may be a ‘knowledge’ of the body that is not exactly the science of its functioning, and a mastery of its forces that is more than the ability to conquer them: this knowledge and this mastery constitute what might be called the political technology of the body. Of course, this technology is diffuse, rarely formulated in continuous, systematic discourse; it is often made up of bits and pieces; it implements a disparate set of tools or methods. In spite of the coherence of its results, it is generally no more than a multiform instrumentation. Moreover, it cannot be localized in a particular type of institution or state apparatus. For they have recourse to it; they use, select or impose certain of its methods. But, in its mechanisms and its effects, it is situated at a quite different level. What the apparatuses and institutions operate is, in a sense, a micro-physics of power, whose field of validity is situated in a sense between these great functionings and the bodies themselves with their materiality and their forces.
 

Now, the study of this micro-physics presupposes that the power exercised on the body is conceived not as a property, but as a strategy, that its effects of domination are attributed not to ‘appropriation’, but to dispositions, manoeuvres, tactics, techniques, functionings; that one should decipher in it a network of relations, constantly in tension, in activity, rather than a privilege that one might possess; that one should take as its model a perpetual battle rather than a contract regulating a transaction or the conquest of a territory. In short this power is exercised rather than possessed; it is not the privilege’, acquired or preserved, of the dominant class, but the overall effect of its strategic positions — an effect that is manifested and sometimes extended by the position of those who are dominated. Furthermore, this power is not exercised simply as an obligation or a prohibition on those who ‘do not have it’; it invests them, is transmitted by them and through them; exerts pressure upon them, just as they themselves, in their struggle against it, resist the grip it has on them. This means that these relations go right down into the depths of society, that they are not localized in the relations between the state and its citizens or on the frontier between classes and that they do not merely reproduce, at the level of individuals, bodies, gestures and behaviour, the general form of the law or government; that, although there is continuity (they are indeed articulated on this form through a whole series of complex mechanisms), there is neither analogy nor homology, but a specificity of mechanism and modality. Lastly, they are not univocal; they define innumerable points of confrontation, focuses of instability, each of which has its own risks of conflict, of struggles, and of an at least temporary inversion of the power relations. The overthrow of these ‘micro-powers’ does not, then, obey the law of all or nothing; it is not acquired once and for all by a new control of the apparatuses nor by a new functioning or a destruction of the institutions; on the other hand, none of its localized episodes may be inscribed in history except by the effects that it induces on the entire network in which it is caught up.
 

Perhaps, too, we should abandon a whole tradition that allows us to imagine that knowledge can exist only where the power relations are suspended and that knowledge can develop only outside its injunctions, its demands and its interests. Perhaps we should abandon the belief that power makes mad and that, by the same token, the renunciation of power is one of the conditions of knowledge. We should admit rather that power produces knowledge (and not simply by encouraging it because it serves power or by applying it because it is useful); that power and knowledge directly imply one another; that there is no power relation without the correlative constitution of a field of knowledge, nor any knowledge that does not presuppose and constitute at the same time power relations. These ‘power-knowledge relations’ are to be analysed, therefore, not on the basis of a subject of knowledge who is or is not free in relation to the power system, but, on the contrary, the subject who
 

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knows, the objects to be known and the modalities of knowledge must be regarded as so many effects of these fundamental implications of power-knowledge and their historical transformations. In short, it is not the activity of the subject of knowledge that produces a corpus of knowledge, useful or resistant to power, but power-knowledge, the processes and struggles that traverse it and of which it is made up, that determines the forms and possible domains of knowledge.
 

To analyse the political investment of the body and the micro­physics of power presupposes, therefore, that one abandons — where power is concerned — the violence—ideology opposition, the metaphor of property, the model of the contract or of conquest; that —where knowledge is concerned — one abandons the opposition between what is ‘interested’ and what is 'disinterested’, the model of knowledge and the primacy of the subject. Borrowing a word from Petty and his contemporaries, but giving it a different meaning from the one current in the seventeenth century, one might imagine a political ‘anatomy’. This would not be the study of a state in terms of a ‘body’ (with its elements, its resources and its forces), nor would it be the study of the body and its surroundings in terms of a small state. One would be concerned with the ‘body politic’, as a set of material elements and techniques that serve as weapons, relays, communication routes and supports for the power and knowledge relations that invest human bodies and subjugate them by turning them into objects of knowledge.
 

It is a question of situating the techniques of punishment —whether they seize the body in the ritual of public torture and execution or whether they are addressed to the soul — in the history of this body politic; of considering penal practices less as a consequence of legal theories than as a chapter of political anatomy.
 

Kantorowitz gives a remarkable analysis of ‘The King’s Body’:
 

a double body according to the juridical theology of the Middle Ages, since it involves not only the transitory element that is born and dies, but another that remains unchanged by time and is maintained as the physical yet intangible support of the kingdom; around this duality, which was originally close to the Christological model, are organized an iconography, a political theory of monarchy, legal mechanisms that distinguish between as well as link the person of the king and the demands of the Crown, and a whole ritual that reaches its height in the coronation, the funeral and the ceremonies of submission.

 

If the surplus power possessed by the king gives rise to the duplication of his body, has not the surplus power exercised on the subjected body of the condemned man given rise to another type of duplication. That of a ‘non-corporal’, a soul’, as Mably called it. The history of this ‘micro-physics’ of the punitive power would then be a genealogy or an element in a genealogy of the modern ‘soul’. Rather than seeing this soul as the reactivated remnants of an ideology, one would see it as the present correlative of a certain technology of power over the body. It would be wrong to say that the soul is an illusion, or an ideological effect. On the contrary, it exists, it has a reality, it is produced permanently around, on, within the body by the functioning of a power that is exercised on those punished — and, in a more general way, on those one supervises, trains and corrects, over madmen, children at home and at school, the colonized, over those who are stuck at a machine and supervised for the rest of their lives. This is the historical reality of this soul, which, unlike the soul represented by Christian theology, is not born in sin and subject to punishment, but is born rather out of methods of punishment, supervision and constraint. This real, non­corporal soul is not a substance; it is the element in which are articulated the effects of a certain type of power and the reference of a certain type of knowledge, the machinery by which the power relations give rise to a possible corpus of knowledge, and knowledge extends and reinforces the effects of this power. On this reality-reference, various concepts have been constructed and domains of analysis carved out: psyche, subjectivity, personality, consciousness,
 

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etc.; on it have been built scientific techniques and discourses, and the moral aims of humanism. But let there be no misunderstanding: it is not that a real man, the object of knowledge, philosophical reflection or technical intervention, has been substituted for the soul, the illusion of the theologians. The man described for us, whom we are invited to free, is already in himself the effect of a subjection much more profound than himself. A ‘soul’ inhabits him and brings him to existence, which is itself a factor in the mastery that power exercises over the body. The soul is the effect and instrument of a political anatomy; the soul is the prison of the body.
 

That punishment in general and the prison in particular belong to a political technology of the body is a lesson that I have learnt not so much from history as from the present. In recent years, prison revolts have occurred throughout the world. There was certainly something paradoxical about their aims, their slogans and the way they took place. They were revolts against an entire state of physical misery that is over a century old: against cold, suffocation and overcrowding, against decrepit walls, hunger, physical maltreatment. But they were also revolts against model prisons, tranquilizers, isolation, the medical or educational services. Were they revolts whose aims were merely material? Or contradictory revolts: against the obsolete, but also against comfort; against the warders, but also against the psychiatrists? In fact, all these movements — and the innumerable discourses that the prison has given rise to since the early nineteenth century — have been about the body and material things. What has sustained these discourses, these memories... and invectives are indeed those minute material details. One may, if one is so disposed, see them as no more than blind demands or suspect the existence behind them of alien strategies. in fact, they were revolts, at the level of the body, against the very body of the prison. What was at issue was not whether the prison environment was too harsh or too aseptic, too primitive or too efficient, but its very materiality as an instrument and vector of power; it is this whole technology of power over the body that the technology of the ‘soul’ — that of the educationalists, psychologists and psychia­trists — fails either to conceal or to compensate, for the simple reason that it is one of its tools. I would like to write the history of this
 

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prison, with all the political investments of the body that it gathers together in its closed architecture. Why? Simply because I am interested in the past? No, if one means by that writing a history of the past in terms of the present. Yes, if one means writing the history of the present.
 

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...there was scarce]y any need to add others, or to enter the difficult and dubious combinatory of clues; the confession, provided it was obtained in the correct manner, almost discharged the prosecution of the obligation to provide further evidence (in any case, the most difficult evidence). Secondly, the only way that this procedure might use all its unequivocal authority, and become a real victory over the accused, the only way in which the truth might exert all its power, was for the criminal to accept responsibility for his own crime and himself sign what had been skillfully and obscurely constructed by the preliminary investigation. ‘It is not enough’, as Ayrault, who did not care for these secret procedures, remarked, ‘that wrong-doers be justly punished. They must if possible judge and condemn themselves’ (Ayrault. I, chapter 14). Within the crime reconstituted by writing, the criminal who confessed came to play the role of living truth. The confession; an act of the criminal, responsible and speaking subject, was the complement to the written, secret preliminary investigation. Hence the importance that all this procedure of an inquisitorial type accorded to the confession.
 

Hence, too, the ambiguities of its role. On the one hand, an attempt was made to introduce it into the general arithmetic of evidence; it was stressed that it was no more than one proof among many. It was not the evidentic... nor was it the strongest of the proofs, it was not in itself enough to bring conviction, it had to be accompanied by additional, circumstantial evidence; for it is a well known fact that the accused sometimes declare themselves to be guilty of crimes that they have not committed; the examining magistrate had therefore to carry out additional investigations if he possessed no more than the confession of the accused. But, on the other hand, the confession had priority over any other kind of evidence. To a certain extent, it transcended all other evidence; an element in the calculation of the truth, it was also the act by which the accused accepted the charge and recognized its truth; it transformed an investigation carried out without him into a voluntary affirmation. Through the confession, the accused himself took part in the ritual of producing penal truth. As medieval law put it, the confession ‘renders the thing notorious and manifest’. To this first ambiguity was added a second: as a particularly strong proof, requiring for a conviction only a few additional clues, thus reducing
 

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to the minimum the work of investigation and the mechanics of demonstration, the confession was therefore highly valued; every possible coercion would be used to obtain it. But, although it had to be, in the procedure, the living and oral counterpart of the written preliminary investigation, although it had to be its reply, its authentication, as it were, on the part of the accused, it had to be surrounded by guarantees and formalities. It preserved something of a transaction: that is why it had to be ‘spontaneous’, why it had to be formulated before the competent court, why it had to be made in full consciousness, why it should not concern impossible things, etc. Through the confession, the accused committed himself to the procedure; he signed the truth of the preliminary investigation.
 

This double ambiguity of the confession (an element of proof and the counterpart of preliminary investigation; the effect of constraint and a semi-voluntary transaction) explains the two great means used by classical criminal law to obtain it: the oath that the accused was asked to make before his interrogatory (and therefore under threat of perjury before both human and divine justice; and, at the same time, a ritual act of commitment); judicial torture (physical violence to obtain truth, which, in any case, had then to be repeated before the judges, as a ‘spontaneous’ confession, if it were to constitute proof). At the end of the eighteenth century, torture was to be denounced as a survival of the barbarities of another age: the mark of a savagery that was denounced as ‘Gothic’. It is true that the practice of torture is of ancient origin: it goes back at least as far as the Inquisition, of course, and probably to the torture of slaves. But it did not figure in classical law as a survival or defect. It occupied a strict place in a complex penal mechanism, in which the procedure of an inquisitorial type was reinforced with elements of the accusatory system; in which the written demonstration required an oral correlative; in which the techniques of proof administered by the magistrates were mingled with the methods of the ordeal to which the accused was challenged; in which he was called upon — if necessary by the most violent persuasion — to play the role of voluntary partner in the procedure; in which it was a question, in short, of producing truth by a mechanism consisting of two elements — that of the investigation carried out in secret by the judicial authority and that of the act ritually performed by the accused. The
 

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body of the accused, the speaking and, if necessary, suffering body, assured the interlocking of these two mechanisms; that is why, until the classical system of punishment was re-examined from top to bottom, there were so few radical criticisms of torture (the most famous being Nicolas’s Si la torture est un moyer virifier les crimes of 1682). Much more frequent were simple recommendations of prudence: 'Judicial torture is a dangerous means of arriving at knowledge of the truth; that is why judges must not resort to it without due consideration. Nothing is more equivocal. There are guilty men who have enough firmness to hide a true crime... and innocent victims who are made to confess crimes of which they were not guilty’ (Ferriere...)
 

On this basis one may see the functioning of judicial torture, or interrogation under torture, as a torture of the truth. To begin with, judicial torture was not a way of obtaining the truth at all costs; it was not the unrestrained torture of modern interrogations; it was certainly cruel, but it was not savage. It was a regulated practice, obeying a well-defined procedure; the various stages, their duration, the instruments used, the length of ropes and the heaviness of the weights used, the number of interventions made by the interrogating magistrate, all this was, according to the different local practices, carefully codified. (In 1729, Aguesseau ordered an investigation into the means and rules of torture used in France. For a summary of the findings, cf. Joly de Fleury, 322-8.) Torture was a strict judicial game. And, as such, it was linked to the old tests or trials — ordeals, judicial duels, judgements of God — that were practised in accusatory procedures long before the techniques of the Inquisition. Something of the joust survived, between the judge who ordered the judicial torture and the suspect who was tortured; the ‘patient’ — this is the term used to designate the victim — was subjected to a series of trials, graduated in severity, in which he succeeded if he ‘held out’, or failed if he confessed. (The first degree of torture was the sight of the instruments. In the case of children or of persons over the age of seventy, one did not go beyond this stage.) But the examining magistrate did not employ torture without himself taking certain risks (apart, that is, from the danger of causing the suspect’s death); he had a stake in the game, namely, the evidence that he had already collected; For the rule was that if the accused ‘held out’ and did not
 

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confess, the magistrate was forced to drop the charges. The tortured man had then won. Hence the custom, which had been introduced for the most serious cases, of imposing judicial torture ‘pending proof’: in this case the magistrate could continue with his investigation after the torture had failed; the suspect was not declared innocent by his resistance; but at least his victory saved him from being condemned to death. The judge kept all his cards, except the principal one.  Omnia citra mortem. Hence the recommendation often made to magistrates, in the case of the most serious crimes, not to subject to judicial torture a suspect against whom the evidence was sufficiently convincing for, if he managed to resist the torture, the magistrate would no longer have the right to pass the death sentence, which he nevertheless deserved; in such a joust, justice would be the loser: if the evidence was sufficient ‘to condemn such a guilty person to death’, one should not ‘leave the conviction to chance and to the outcome of a provisional interrogation that often leads to nothing; for it is in the interest of public safety to make examples of grave, horrible and capital crimes’ (Rousseaud de la Combe, 503).
 

Beneath an apparently determined, impatient search for truth, one finds in classical torture the regulated mechanism of an ordeal: a physical challenge that must define the truth; if the patient is guilty, the pains that it imposes are not unjust; but it is also a mark of exculpation if he is innocent, In the practice of torture, pain, confrontation and truth were bound together: they worked together on the patient’s body. The search for truth through judicial torture was certainly a way of obtaining evidence, the most serious of all — the confession of the guilty person; but it was also the battle, and this victory of one adversary over the other, that ‘produced’ truth according to a ritual. In torture employed to extract a confession, there was an element of the investigation; there also was an element of the duel.
 

It is as if investigation and punishment had become mixed. And this is not the least paradoxical thing about it. Judicial torture was indeed defined as a way of complementing the demonstration when ‘there are not sufficient penalties in the trial’. For it was included among the penalties; it was a penalty so grave that, in the hierarchy of punishments, the ordinance of 1760 placed it immediately after
 

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death. How can a penalty be used as a means? one was later to ask. How can one treat as a punishment what ought to be a method of demonstration? The reason is to be found in the way in which criminal justice, in the classical period, operated the production of truth. The different pieces of evidence did not constitute so many neutral elements, until such time as they could be gathered together into a single body of evidence that would bring the final certainty of guilt. Each piece of evidence aroused a particular degree of abomination. Guilt did not begin when all the evidence was gathered together; piece by piece, it was constituted by each of the elements that made it possible to recognize a guilty person. Thus a semi-proof did not leave the suspect innocent until such time as it was completed; it made him semi-guilty; slight evidence of a serious crime marked someone as slightly criminal. in short, penal demonstration did not obey a dualistic system: true or false; but a principle of continuous gradation; a degree reached in the demonstration already formed a degree of guilt and consequently involved a degree of punishment. The suspect, as such, always deserved a certain punishment; one could not be the object of suspicion and be completely innocent. Suspicion implied an element of demonstration as regards the judge, the mark of a certain degree of guilt as regards the suspect and a limited form of penalty as regards punishment. A suspect, who remained a suspect, was not for all that declared innocent, but was partially punished. When one reached a certain degree of presumption, one could then legitimately bring into play a practice that had a dual role: to begin the punishment in pursuance of the information already collected and to make use of this first stage of punishment in order to extort the truth that was still missing. In the eighteenth century, judicial torture functioned in that strange economy in which the ritual that produced the truth went side by side with the ritual that imposed the punishment. The body interrogated in torture constituted the point of application of the punishment and the locus of extortion of the truth. And just as presumption was inseparably an element in the investigation and a fragment of guilt, the regulated pain involved in judicial torture was a means both of punishment and of investigation.
 

Now, curiously enough, this interlocking of the two rituals through the body continued, evidence having been confirmed, sentence passed, in the actual carrying out of the penalty; and the body of the condemned man was once again an essential element in the ceremonial of public punishment. It was the task of the guilty man to bear openly his condemnation and the truth of the crime that he had committed. His body, displayed, exhibited in procession, tortured, served as the public support of a procedure that had hitherto remained in the shade; in him, on him, the sentence had to be legible for all. This immediate, striking manifestation of the truth in the public implementation of penalties assumed, in the eighteenth century, several aspects.
 

1. It made the guilty man the herald of his own condemnation. He was given the task, in a sense, of proclaiming it and thus attesting to the truth of what he had been charged with: the procession through the streets, the placard attached to his back, chest or head as a reminder of the sentence; the halts at various crossroads, the reading of the sentence, the amende honorable performed at the doors of churches, in which the condemned man solemnly acknowledged his crime: ‘Barefoot, wearing a shirt, carrying a torch, kneeling, to say and to declare that wickedly, horribly, treacherously, he has committed the most detestable crime, etc.’; exhibition at a stake where his deeds and the sentence were read out; yet another reading of the sentence at the foot of the scaffold; whether he was to go simply to the pillory or to the stake and the wheel, the condemned man published his crime and the justice that had been meted out to him by bearing them physically on his body.
 

2. It took up once again the scene of the confession. It duplicated the forced proclamation of the amende honorable with a spontaneous, public acknowledgment. It established the public execution as the moment of truth. These last moments, when the guilty man no longer has anything to lose, are won for the full light of truth. After the passing of the sentence, the court could decide on some new torture to obtain the names of possible accomplices. It was also recognized that at the very moment he mounted the scaffold the condemned man could ask for a respite in order to make new revelations. The public expected this new turn in the course of truth. Many made use of it in order to gain time, as did Michel Barbier, found guilty of armed assault: ‘He stared impudently at the
 

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scaffold and said that it had certainly not been set up for him, since he was innocent; he first asked to return to the chamber, where he beat about the bush for half an hour, still trying to justify himself; then, when he was sent back to execution, he ascended the scaffold with a purposeful air, but, when he saw himself undressed and tied to the cross before being stretched, he asked to go back to the chamber a second time and there made a full confession of his crimes and even declared that he was guilty of another murder’ (Hardy, IV, 80). The function of the public torture and execution was to reveal the truth; and in this respect it continued, in the public eye, the work of the judicial torture conducted in private. It added to the conviction the signature of the convicted man. A successful public execution justified justice, in that it published the truth of the crime in the very body of the man to be executed. An example of the good condemned man was Francois Billiard, a senior postal official, who murdered his wife in 1772. The executioner wanted to hide his face to spare him the insults of the crowd: ‘ “This punishment, which I have merited, has not been inflicted upon me,” he said, “so that I should not be seen by the public. . .“ He was still wearing mourning dress in honour of his wife. He was wearing new shoes, his hair had been recently curled and powdered, and he had a countenance so modest and so dignified that those present who found themselves observing him more closely said that he must be the most perfect Christian or the greatest of all hypocrites. The placard that he was wearing on his chest had gone askew, and it was noticed that he had straightened it himself no doubt so that people could read it the more easily’ (Hardy, I, 327). If each of the participants played his role well, the penal ceremony had the effectiveness of a long public confession.
 

3. It pinned the public torture on to the crime itself; it established from one to the other a series of decipherable relations. It was an exhibition of the corpse of the condemned man at the scene of his crime, or at one of the near-by crossroads. The execution was often carried out at the very place where the crime had been committed —as in the case of the student who, in 1723, had killed several persons and for whom the presidial court of Nantes decided to set up a scaffold in front of the inn where he had committed his murders (Nantes, F.F. 124; cf. Parfouru, XXV). There was the use of
 

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symbolic’ torture in which the forms of the execution referred to the nature of the crime: the tongues of blasphemers were pierced, the impure were burnt, the right hand of murderers was cut off; some times the condemned man was made to carry the instrument of his crime — thus Damiens was made to hold in his guilty right hand the famous dagger with which he had committed the crime, hand anc dagger being smeared with sulphur and burnt together. As Vicc remarked, this old jurisprudence was ‘an entire poetics’.
 

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 gestures. Thus justice had the crime re­enacted before the eyes of all, publishing it in its truth and at the same time annulling it in the death of the guilty man. Even as late in the eighteenth century as 1772, one finds sentences like the following: a servant girl at Cambrai, having killed her mistress, was condemned to be taken to the place of her execution in a cart ‘used to collect rubbish at the crossroads’; there a gibbet was to be set up ‘at the foot of which will be placed the same chair in which the said Laleu, her mistress, was sitting at the time of the murder; and having seated the criminal there, the executioner of the High Court of Justice will cut off her right hand, throw it in her presence into the fire, and, immediately afterwards, will strike her four blows with the cleaver with which she murdered the said Laleu, the first and second being on the head, the third on the left forearm and the fourth on the chest; this done, she will be hung and strangled on the said gibbet until she be dead; and when two hours have elapsed her dead body will be removed and the head separated from it at the foot of the said gibbet on the said scaffold, with the same cleaver she used to murder her mistress, and the same head exhibited on a pole twenty feet high outside the gates of the said Cambrai, within reach of the road that leads to Douai, and the rest of the body put in a sack, and buried near the said pole at a depth of ten feet’ (quoted in Dautricourt, 269-70).
 

4. Lastly, the slowness of the process of torture and execution, its sudden dramatic moments, the cries and sufferings of the condemned man serve as an ultimate proof at the end of the judicial ritual. Every death agony expresses a certain truth: but, when it takes place on the scaffold, it does so with more intensity, in that it is hastened by pain; with more rigour, because it occurs exactly at the juncture between the judgment of men and the judgment of God; with more ostentation, because it takes place in public. The sufferings of the condemned man are an extension of those of the judicial torture that precedes them; in the judicial torture, however, the game was not yet over and one could still save one’s life; now one will die, without any doubt, and it is one’s soul that one must save. The eternal game has already begun: the torture of the execution anticipates the punishments of the beyond; it shows what they are; it is the theatre of hell; the cries of the condemned man, his struggles, his blasphemies, already signify his irremediable destiny. But the pains here below may also be counted as penitence and so alleviate the punishments of the beyond: God will not fail to take such a martyrdom into account, providing it is borne with resignation. The cruelty of the earthly punishment will he deducted from the punishment to come: in it is glimpsed the promise of forgiveness. But, it might be said, are not such terrible sufferings a sign that God has abandoned the guilty man to the mercy of his fellow creatures? And, far from securing future absolution, do they not prefigure imminent damnation; so that, if the condemned man dies quickly, without a prolonged agony, is it not proof that God wishes to protect him and to prevent him from falling into despair? There is, therefore, an ambiguity in this suffering that may signify equally well the truth of the crime or the error of the judges, the goodness or the evil of the criminal, the coincidence or the divergence between the judgment of men and that of God. Hence the insatiable curiosity that drove the spectators to the scaffold to witness the spectacle of sufferings truly endured; there one could decipher crime and innocence, the past and the future, the here below and the eternal. It was a moment of truth that all the spectators questioned: each word, each cry, the duration of the agony, the resisting body, the life that clung desperately to it, all this constituted a sign. There was the man who survived ‘six hours on the wheel, and did not want the executioner, who consoled and heartened him no doubt as best he could, to leave him for a moment’; there was the man who died ‘with true Christian feeling, and who manifested the most sincere repentance’; the man who ‘expired on the wheel an hour after being put there; it is said that the spectators of his torture were moved by the outward signs
 

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of religion and repentance that he gave’; the man who had shown the most marked signs of contrition throughout the journey to the scaffold, but who, when placed alive on the wheel, ‘did not cease to let Forth the mast horrible cries’; or again the woman who ‘had preserved her calm up to the moment when the sentence was read, but whose wits then began to turn; she was quite mad by the time she was hanged’ (Hardy, 1, 13; IV, 42; V, 134).
 

We have come full circle: from the judicial torture to the execution, the body has produced and reproduced the truth of the crime—or rather it constitutes the element which, through a whole set of rituals and trials, confesses that the crime took place, admits that the accused did indeed commit it, shows that he bore it inscribed in himself and on himself; supports the operation of punishment and manifests its effects in the most striking way. The body, several times tortured, provides the synthesis of the reality of the deeds and the truth of the investigation, of the documents of the case and the statements of the criminal, of the crime and the punishment. It is an essential element, therefore, in a penal liturgy, in which it must serve as the partner of a procedure ordered around the formidable rights of the sovereign, the prosecution and secrecy.
 

The public execution is to be understood not only as a judicial, but also as a political ritual. It belongs, even in minor cases, to the ceremonies by which power is manifested.
 

An offence, according to the law of the classical age, quite apart from the damage it may produce, apart even from the rule that it breaks, offends the rectitude of those who abide by the law: ‘If one commits something that the law forbids, even if there is neither harm nor injury to the individual, it is an offence that demands reparation, because the right of the superior man is violated and because it offends the dignity of his character’ (Risi, 9). Besides its immediate victim, the crime attacks the Sovereign: it attacks him personally, since the law represents the will of the sovereign; it attacks him physically, since the force of the law is the force of the prince. ‘For a law to be in force in this kingdom, it must necessarily have emanated directly from the sovereign, or at least been confirmed by the seal of his authority’ (Muyart de Vouglans, xxxiv). The intervention of the sovereign is not, therefore, an arbitration between
 

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two adversaries; it is much more, even, than an action to enforce respect for the rights of the individual; it is a direct reply to the person who has offended him. There can be no doubt that ‘the exercise of the sovereign power in the punishment of crime is one of the essential parts of the administration of justice’ (Jousse, vii). Punishment, therefore, cannot be identified with or even measured by the redress of the injury; in punishment, there must always be a portion that belongs to the prince, and, even when it is combined with the redress laid down, it constitutes the most important element in the penal liquidation of the crime. Now, this portion belonging to the prince is not in itself simple: on the one hand, it requires redress for the injury that has been done to his kingdom (as an element of disorder and as an example given to others, this considerable injury is out of all proportion to that which has been committed upon a private individual); but it also requires that the king take revenge for an affront to his very person.
 

The right to punish, therefore, is an aspect of the sovereign’s right to make war on his enemies: to punish belongs to ‘that absolute power of life and death which Roman law calls ... imperium, a right by virtue of which the prince sees that his law is respected by ordering the punishment of crime’ (Muyart de Vouglans, xxxiv). But punishment is also a way of exacting retribution that is both personal and public, since the physico-political force of the sovereign is in a sense present in the law: ‘One sees by the very definition of the law that it tends not only to prohibit, but also to avenge contempt for its authority by the punishment of those who violate its prohibitions’ (Muyart de Vouglans, xxxiv). In the execution of the most ordinary penalty, in the most punctilious respect of legal forms, reign the active forces of revenge.
 

The public execution, then, has a juridico-political function. It is a ceremonial by which a momentarily injured sovereignty is reconstituted. It restores that sovereignty by manifesting it at its most spectacular. The public execution, however hasty and everyday, belongs to a whole series of great rituals in which power is eclipsed and restored (coronation, entry of the king into a conquered city, the submission of rebellious subjects); over and above the crime that has placed the sovereign in contempt, it deploys before all eyes an invincible force. Its aim is not so much to re-establish a balance
 

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as to bring into play, as its extreme point, the dissymmetry between the subject who has dared to violate the law and the all-powerful sovereign who displays his strength. Although redress of the private injury occasioned by the offence must be proportionate, although the sentence must be equitable, the punishment is carried out in such a way as to give a spectacle not of measure, but of imbalance and excess; in this liturgy of punishment, there must be an emphatic affirmation of power and of its intrinsic superiority. And this superiority is not simply that of right, but that of the physical strength of the sovereign beating down upon the body of his adversary and mastering it: 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 — 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’. When the jurists of the eighteenth century began their polemic with the reformers, they offered a restrictive, ‘modernist’ interpretation of the physical cruelty of the penalties imposed by the law: if severe penalties are required, it is because their example must be deeply inscribed in the hearts of men. Yet, in fact, what had hitherto maintained this practice of torture was not an economy of example, in the sense in which it was to be understood at the time of the ideologues (that the representation of the penalty should be greater than the interest of the crime), but a policy of terror: to make everyone aware, through the body of the criminal, of the unrestrained presence of the sovereign. The public execution did not re-establish justice; it reactivated power. In the seventeenth century, and even in the early eighteenth century, it was not, therefore, with all its theatre of terror, a linger­ing hang-over from an earlier age. Its ruthlessness, its spectacle, its physical violence, its unbalanced play of forces, its meticulous ceremonial, its entire apparatus were inscribed in the political functioning of the penal system.
 

This enables us to understand some of the characteristics of the liturgy of torture and execution — above all, the importance of a ritual that was to deploy its pomp in public. Nothing was to be hidden of this triumph of the law. Its episodes were traditionally the same and yet the sentences never failed to list them, so important were they in the penal mechanism: processions, halts at crossroads
 

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and church doors, the public reading of the sentence, kneeling, declarations of repentance for the offence to God and to the king. Sometimes questions of precedence and ceremonial were settled by the court itself: ‘The officers will ride according to the following order: namely, at the head two police sergeants; then the patient; after the patient, Bonfort and Le Corre on his left will walk together, followed by the clerk of the court and in this manner shall go to the market square at which place the judgment shall be carried out’ (quoted in Corre, 7). Now, this meticulous ceremonial was not only legal, but quite explicitly military. The justice of the king was shown to be an armed justice. The sword that punished the guilty was also the sword that destroyed enemies. A whole military machine surrounded the scaffold: cavalry of the watch, archers, guardsmen, soldiers. This was intended, of course, to prevent any escape or show of force; it was also to prevent any outburst of sympathy or anger on the part of the people, any attempt to save the condemned or to have them immediately put to death; but it was also a reminder that every crime constituted as it were a rebellion against the law and that the criminal was an enemy of the prince. All these reasons —whether a matter of precaution in particular circumstances or a functional element in the performance of the ritual — made the public execution more than an act of justice; it was a manifestation of force; or rather, it was justice as the physical, material and awesome force of the sovereign deployed there. The ceremony of the public torture and execution displayed for all to see the power relation that gave his force to the law.
 

As a ritual of armed law, in which the prince showed himself, indissociably, both as head of justice and head of war, the public execution had two aspects: one of victory, the other of struggle. It brought to a solemn end a war, the outcome of which was decided in advance, between the criminal and the sovereign; it had to manifest the disproportion of power of the sovereign over those whom he had reduced to impotence. The dissymmetry, the irreversible imbalance of forces were an essential element in the public execution. A body effaced, reduced to dust and thrown to the winds, a body destroyed piece by piece by the infinite power of the sovereign constituted not only the ideal, but the real limit of punishment. Take the celebrated torture and execution of Massola, which took
 

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place at Avignon and which was one of the first to arouse the indignation of contemporaries. This was an apparently paradoxical ceremony, since it took place almost entirely after death, and since justice did little more than deploy its magnificent theatre, the ritual praise of its force, on a corpse. The condemned man was blind­folded and led to a stake; all around, on the scaffold, were stakes with iron hooks. ‘The confessor whispered in the patient’s ear and, after he had given him the blessing, the executioner, who had an iron bludgeon of the kind used in slaughter houses, delivered a blow with all his might on the temple of the wretch, who fell dead: the morris exactor, who had a large knife, then cut his throat, which spattered him with blood; it was a horrible sight to see; he severed the Sinews near the two heels, and then opened up the belly from which he drew the heart, liver, spleen and lungs, which he stuck on an iron hook, and cut and dissected into pieces, which he then stuck on the other hooks as he cut them, as one does with an animal. Look who can at such a sight’ (Bruneau, 259). In the explicit reference to the butcher’s trade, the infinitesimal destruction of the body is linked here with spectacle: each piece is placed on display.
 

The execution was accompanied by a whole ceremonial of triumph; but it also included, as a dramatic nucleus in its monotonous progress, a scene of confrontation: this was the immediate, direct action of the executioner on the body of the ‘patient’. It was a coded action, of course, since custom and, often quite explicitly, the sentence prescribed its principal episodes. Nevertheless, it did preserve something of the battle. The executioner not only implemented the law, he also deployed the force; he was the agent of a violence applied, in order to master it, to the violence of the crime. Materially, physically, he was the adversary of this crime: an adversary who could show pity or ruthlessness. Damhoud~re complained, with many of his contemporaries, that the executioners exercised ‘every cruelty with regard to the evil-doing patients, beating them, buffeting and killing them as if they had a beast in their hands’ (Damhoud~re, 219). And for a long time the habit did not die our.3 There was still an element of challenge and of jousting in the ceremony of public execution. If the executioner triumphed, if he managed to cut off the head with a single blow, he showed it to the people, put it down on the ground and then waved to the public who greatly applauded his skill by clapping’. (A scene observed by T. S. Gueulette, at the execution of Montigny in 1737 — cf. Anchel, 62—9.) Conversely, if he failed, if he did not succeed in killing the ‘patient’ as required, he was liable to punishment. This was the case of Damiens’s executioner who, being unable to quarter his patient according to the rules, had to cut him up with a knife; as a result, Damiens’s hair, which had been promised to him, was confiscated and the money obtained from the sale given to the poor. Some years later, an executioner at Avignon caused excessive pain to three bandits, who were nevertheless formidable characters, whom he had to hang; the spectators became angry; they denounced him; in order to punish him and also to protect him from mob violence, he was put into prison (Duhamel, 25). And, behind this punishment of the unskillful executioner, stands a tradition, which is still close to us, according to which the condemned man should be pardoned if the execution happened to fail. It was a custom clearly established in certain countries: in Burgundy, for instance (cf. Chassan~e, 15). The people often expected it to be applied, and would sometimes protect a condemned man who had escaped death in this way. In order to abolish both custom and expectation, they had to revive the adage, ‘the gibbet does not lose its prey’, to introduce explicit instructions in capital sentences, such as ‘hanged by the neck until he be dead’. And jurists like Serpillon or Blackstone were insisting in the middle of the eighteenth century that a failure on the part of the executioner did not mean that the condemned man’s life was spared (Serpillon, III, ...). In his Commentaries on the Laws of England, Blackstone remarks: ‘It is clear, that if, upon judgment to be hanged by the neck till he is dead, the criminal be not thoroughly killed, but revives, the sheriff must hang him again. For the former hanging was no execution of the sentence; and, if a false tenderness were to he indulged in such cases, a multitude of collusions might ensue’ (Blackstone, ...). There was something of the ordeal and something of God’s judgment that was still indecipherable in the ceremony of execution, In his confrontation with the condemned man, the executioner was a little like the king’s champion. Yet he was an unacknowledgeable and unacknowledged champion: the tradition was, it seems, that when the executioner’s letters were sealed, they were not placed on the table, but thrown on the ground. The various prohibitions surrounding this ‘very necessary’ yet ‘unnatural’ office are well known (Loyseau, 80-1). The executioner may have been, in a sense, the king’s sword, but he shared the infamy of his adversary. The sovereign power that enjoined him to kill, and which through him did kill, was not present in him; it was not identified with his own ruthlessness. And it never appeared with more spectacular effect than when it interrupted the executioner’s gesture with a letter of pardon. The short time that usually elapsed between sentence and execution (often a few hours) meant that the pardon usually arrived at the very last moment. But the ceremony, by the very slowness of its progress, was no doubt arranged to leave room for this eventuality. (Cf. Hardy, 30 January 1769, I, 12 and14 December 1779, IV, 229; Anchel, 162-3, tells the story of Antoine Boulleteix, who was already at the foot of the scaffold when a horseman arrived carrying the celebrated parchment. Shouts of ‘God save the King’ arose and Boulleteix was taken to the tavern, while the clerk of the court made a collection on his behalf.) The condemned always hoped for a pardon and, in order to drag things out, they would pretend, even at the foot of the scaffold, that they had further revelations to make. When the people wanted a pardon they called for it aloud and tried to postpone the last moment, looking out for the arrival of the messenger bearing the letter with the green wax seal and if necessary claiming that he was on his way (this happened during the execution of those condemned for the uprising against child abduction on 3 August 1750). The sovereign was present at the execution not only as the power exacting the vengeance of the law, but as the power that could suspend both law and vengeance. He alone must remain master, he alone could wash away the offences committed on his person; although it is true that he delegated to the courts the task of exercising his power to dispense justice, he had not transferred it; he retained it in its entirety and he could suspend the sentence or increase it at will.
 

We must regard the public execution, as it was still ritualized in the eighteenth century, as a political operation. It was logically inscribed in a system of punishment, in which the sovereign, directly or indirectly, demanded, decided and carried out punishments, in so far as it was he who, through the law, had been injured by the crime. In every offence there was a crimen majesraris and in the least
 

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criminal a potential regicide. And the regicide, in turn, was neither more nor less, than the total, absolute criminal since, instead of attacking, like any offender, a particular decision or wish of the sovereign power, he attacked the very principle and physical person of the prince. The ideal punishment of the regicide had to constitute the ... of all possible tortures. It would be an expression of infinite vengeance: French law, in any case, made provisions for no fixed penalties for this sort of monstrosity. For the execution of Ravaillac the form of the ceremony had to be invented, by combining all the cruelest tortures then practised in France. For Damiens, an attempt was made to think up still more atrocious tortures. Suggestions were made, but they were considered to be less perfect. So the form of Ravaillac’s execution was repeated. And it must be admitted that it was relatively modest if one thinks how in 1584 the assassin of William of Orange was abandoned to what seems like an infinity of vengeance. ‘On the first day, he was taken to the square where he found a cauldron of boiling water, in which was submerged the arm with which he had committed the crime. The next day the arm was cut off, and, since it fell at his feet, he was constantly kicking it up and down the scaffold; on the third day, red-hot pincers were applied to his breasts and the front of his arm; on the fourth day, the pincers we’re applied similarly on the back of his arm and on his buttocks; and thus, consecutively, this man was tortured for eighteen days.’ On the last day, he was put to the wheel and ... (beaten with a wooden club). After six hours, he was still asking for water, which was not given him. ‘Finally the police magistrate was begged to put an end to him by strangling, so that his soul should not despair and be lost’ (Bran..., II, 191—2).
 

There can be no doubt that the existence of public tortures and executions were connected with something quite other than this internal organization. Rusche and Kirchheimer are right to see it as the effect of a system of production in which labour power, and therefore the human body, has neither the utility nor the commercial value that are conferred on them in an economy of an industrial type. Moreover, this ‘contempt’ for the body is certainly related to a general attitude to death; and, in such an attitude, one can detect not only the values proper to Christianity, but a demographical,
 

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in a sense biological, situation: the ravages of disease and hunger, the periodic massacres of the epidemics, the formidable child mortality rate, the precariousness of the bio-economic balances — all this made death familiar and gave rise to rituals intended to integrate it, to make it acceptable and to give a meaning to its permanent aggression. But in analysing why the public executions survived for so long, one must also refer to the historical conjuncture; it must not be forgotten that the ordinance of 1670 that regulated criminal justice almost up to the Revolution had even increased in certain respects the rigour of the old edicts; Pussort, who, among the com­missioners entrusted with the task of drawing up the documents, represented the intentions of the king, was responsible for this, despite the views of such magistrates as Lamoignon; the number of uprisings at the very height of the classical age, the rumbling close at hand of civil war, the king’s desire to assert his power at the expense of the parlements go a long way to explain the survival of so severe a penal system.

In accounting for a penal system involving so much torture, these are general and in a sense external reasons; they explain not only the possibility and the long survival of physical punishments, but also the weakness and the rather sporadic nature of the opposition to them. Against this general background we must bring out their precise function. If torture was so strongly embedded in legal practice, it was because it revealed truth and showed the operation of power. It assured the articulation of the written on the oral, the secret on the public, the procedure of investigation on the operation of the confession; it made it possible to reproduce the crime on the visible body of the criminal; in the same horror, the crime had to be manifested and annulled. It also made the body of the condemned man the place where the vengeance of the sovereign was applied, the anchoring point for a manifestation of power, an opportunity of affirming the dissymmetry of forces. We shall see later that the truth—power relation remains at the heart of all mechanisms of punishment and that it is still to be found in contemporary penal practice — but in a quite different form and with very different effects. The Enlightenment was soon to condemn public torture and execu­tion as an ‘atrocity’ — a term that was often used to describe it, but without any critical intention, by jurists themselves. Perhaps the

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notion of ‘atrocity’ is one of those that best designates the economy of the public execution in the old penal practice. To begin with, atrocity is a characteristic of some of the great crimes: it refers to the number of natural or positive, divine or human laws that they attack, to the scandalous openness or, on the contrary, to the secret cunning with which they have been committed, to the rank and status of those who are their authors and victims, to the disorder that they presuppose or bring with them, to the horror they arouse. In so far as it must bring the crime before everyone’s eves, in all its severity, the punishment must take responsibility for this atrocity: it must bring it to light by confessions, statements, inscrip­tions that make it public; it must reproduce it in ceremonies that apply it to the body of the guilty person in the form of humiliation and pain. Atrocity is that part of the crime that the punishment turns back as torture in order to display it in the full light of day:

it is a figure inherent in the mechanism that produces the visible truth of the crime at the very heart of the punishment itself. The public execution formed part of the procedure that established the reality of what one punished. Furthermore, the atrocity of a crime was also the violence of the challenge flung at the sovereign; it was that which would move him to make a reply whose function was to go further than this atrocity, to master it, to overcome it by an excess that annulled it. The atrocity that haunted the public execu­tion played, therefore, a double role: it was the principle of the communication between the crime and the punishment, it was also the exacerbation of the punishment in relation to the crime. It pro­vided the spectacle with both truth and power; it was the culmina­tion of the ritual of the investigation and the ceremony in which the sovereign triumphed. And it joined both together in the tortured body. The punitive practice of the nineteenth century was to strive to put as much distance as possible between the ‘serene’ search for truth and the violence that cannot be entirely effaced from punish­ment. It set out to mark the heterogeneity that separates the c-rime that is to be punished and the punishment imposed by the public power. Between truth and punishment, there should no longer be any other relation than one of legitimate consequence. The punish­ing power should not soil its hands with a crime greater than the one it wished to punish. It should remain innocent of the penalty

that it inflicts. ‘Let us hasten to proscribe such tortures. They were worthy only of the crowned monsters who governed the Roman5’ (Pastoret, on the subject of the punishment of regicides, H, 6i). But, according to the penal practice of the preceding period, the proxim­ity in the public execution of the sovereign and the crime, the mix­ture that was produced in it of ‘demonstration’ and punishment, were not the result of a barbarous confusion; what joined them together was the mechanism of atrocity and its necessary concatena.. tions. The atrocity of the expiation organized the ritual destruction of infamy by omnipotence.

The fact that the crime and the punishment were related and bound up in the form of atrocity was not the result of some ob­scurely accepted law of retaliation. It was the effect, in the rites of punishment, of a certain mechanism of power: of a power that not only did not hesitate to exert itself directly on bodies, but was exalted and strengthened by its visible manifestations; of a power that asserted itself as an armed power whose functions of maintain.. ing order were not entirely unconnected with the functions of war; of a power that presented rules and obligations as personal bonds, a breach of which constituted an offence and called for vengeance; of a power for which disobedience was an act of hostility, the first sign of rebellion, which is not in principle different from civil war; of a power that had to demonstrate not why it enforced its laws, but who were its enemies, and what unleashing of force threatened them; of a power which, in the absence of continual supervision, sought a renewal of its effect in the spectacle of its individual mani­festations; of a power that was recharged in the ritual display of its reality as ‘super-power’.

Of all the reasons why punishment that was not in the least ashamed of being ‘atrocious’ was replaced by punishment that was to claim the honour of being ‘humane’ there is one that must be analysed at once, for it is internal to the public execution itself: at once an element of its functioning and the principle of its perpetual disorder.

In the ceremonies of the public execution, the main character was the people, whose real and immediate presence was required for the performance. An execution that was known to be taking place, but

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which did so in secret, would scarcely have had any meaning. The aim was to make an example, not only by making people aware that the slightest offence was likely to be punished, but by arousing feelings of terror by the spectacle of power letting its anger fall upon the guilty person: ‘In criminal matters, the most difficult point is the imposition of the penalty: it is the aim and the end of the procedure, and its only fruit, by example and terror, when it is well applied to the guilty person’ (Bruneau, unnumbered preface to the first part).

But, in this scene of terror, the role of the people was an ambigu­ous one. People were summoned as spectators: they were assembled to observe public exhibitions and amendeshonorables; pillories, gallows and scaffolds were erected in public squares or by the road­side; sometimes the corpses of the executed persons were displayed for several days near the scenes of their crimes. Not only must people know, they must see with their own eyes. Because they must be made to be afraid; but also because they must be the witnesses, the guarantors, of the punishment, and because they must to a certain extent take part in it. The right to be witnesses was one that they possessed and claimed; a hidden execution was a privileged execution, and in such cases it was often suspected that it had not taken place with all its customary severity. There were protests when at the last moment the victim was taken away out of sight. The senior postal official who had been put on public exhibition for killing his wife was later taken away from the crowd. ‘He was put into a hired coach; it was thought that if he had not been well escorted, it would have been difficult to protect him from being ill-treated by the populace, who yelled and jeered at him’ (Hardy, I, 3 z8). When the woman Lescombat was hanged, care was taken to hide her face; she had ‘a kerchief over her neck and head, which made the public murmur and say that it was not Lescombat’ (Anchel, 70—71). The people claimed the right to observe the execu­tion and to see who was being executed. The first time the guillotine was used the Chronique de Paris reported that people complained that they could not see anything and chanted, ‘Give us back our gallows’ (Lawrence, 7iff). The people also had a right to take part. The condemned man, carried in procession, exhibited, humiliated, with the horror of his crime recalled in innumerable ways, was

offered to the insults, sometimes to the attacks of the spectators. The vengeance of the people was called upon to become an un­obtrusive part of the vengeance of the sovereign. Not that it was in any way fundamental, or that the king had to express in his own way the people’s revenge; it was rather that the people had to bring its assistance to the king when the king undertook ‘to be avenged on his enemies’, especially when those enemies were to be found among the people. It was rather like a ‘scaffold service’ that the people owed the king’s vengeance. This ‘service’ had been specified in the old ordinances; the edict of 1347 concerning blasphemers stipulated that they would be exhibited at the pillory ‘from the hour of prime, to that of their deaths. And mud and other refuse, though no stone or anything injurious, could be thrown at their faces. The second rime, in case of relapse, it is our will that he be put in the pillory on a solemn market day, and that his upper lip be split so that the teeth appear.’ No doubt, at the classical period, this form of participation in the torture was no more than tolerated and attempts were made to limit it: because of the barbarities that it gave rise to and the usurpation it involved of the power to punish. But it belonged too closely to the general economy of the public execution for it to be eliminated altogether. Even in the eighteenth century, there were scenes like the one that accompanied the execution of Montigny in 1737; as the executioner was carrying out the execu­tion, the local fish-wives walked in procession, holding aloft an effigy of the condemned man, and then cut off its head (Anchel, 63). And very often, as they moved slowly in procession through it, criminals had to be ‘protected’ from the crowd — both as an example and as a target, a possible threat and a ‘prey’, promised but also -. forbidden. In calling on the crowd to manifest its power, the sovereign tolerated for a moment acts of violence, which he accepted as a sign of allegiance, but which were strictly limited by the sover­eign’s own privileges.

Now it was on this point that the people, drawn to the spectacle intended to terrorize it, could express its rejection of the punitive power and sometimes revolt. Preventing an execution that was regarded as unjust, snatching a condemned man from the hands of’ the executioner, obtaining his pardon by force, possibly pursuing and assaulting the executioners, in any case ab,,sin~rh~ii,~·~o~ ,,,,-J

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causing an uproar against the sentence — all this formed part of the popular practices that invested, traversed and often overturned the ritual of the public execution. This often happened, of course, in the case of those condemned for rioting: there were the disturbances that followed a famous case of child abduction, when the crowd wanted to prevent the execution of three supposed rioters, who were to be hanged at the cemetery of Saint-Jean, ‘because there were fewer entrances and processions to guard’;’ the terrified executioner cut down one of the condemned men; the archers let fly their arrows. It occurred again after the corn riots of 177$; and again in 1786, when the day-labourers marched on Versailles and set about freeing their arrested comrades. But apart from these cases, when the pro­cess of agitation had been triggered off previously and for reasons that did not concern some measure of penal justice, one finds many examples when the agitation was provoked directly by a verdict and an execution: small, but innumerable ‘disturbances around the scaffold’.

In their most elementary forms, these disturbances began with the shouts of encouragement, sometimes the cheering, that accompanied the condemned man to his execution. Throughout the long proces­sion, he was sustained by ‘the compassion of the meek and tender­hearted, and with the applause, admiration and envy of all the bold and hardened’ (Fielding, If the crowd gathered round the scaffold, it was not simply to witness the sufferings of the condemned man or to excite the anger of the executioner: it was also to hear an individual who had nothing more to lose curse the judges, the laws, the government and religion. The public execution allowed the luxury of these momentary saturnalia, when nothing remained to prohibit or to punish. Under the protection of imminent death, the criminal could say everything and the crowd cheered. ‘If there were annals in which the last words of the tortured and executed were scrupulously recorded, and if one had the courage to read through them, even if one did no more than question the vile populace that gathers around the scaffolds out of cruel curiosity, one would be told that no one who had died on the wheel did not accuse heaven for the misery that brought him to the crime, reproach his judges for their barbarity, curse the minister of the altars who accompanies them and blaspheme against the God whose organ he is’ (Boucher

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d’Argis, Iz8—9). In these executions, which ought to show only the terrorizing power of the prince, there was a whole aspect of the carnival, in which rules were inverted, authority mocked and crimina]s transformed into heroes. The shame was turned round; the courage, like the tears and the cries of the condemned, caused offence only to the law. Fielding notes with regret: ‘To unite the ideas of death and shame is not so easy as may be imagined ... I will appeal to any man who hath seen an execution, or a procession to an execution; let him tell me. When he hath beheld a poor wretch, bound in a cart, just on the verge of eternity, all pale and trembling with his approaching fate, whether the idea of shame hath ever intruded on his mind? much ]ess will the bold daring rogue, who glories in his present condition, inspire the beholder with any such sensation’ (Fielding, 450). For the people who are there and observe, there is always, even in the most extreme ven­geance of the sovereign a pretext for revenge.

This was especially the case if the conviction was regarded as unjust — or if one saw a man of the people put to death, for a crime that would have merited, for someone better born or richer, a com­paratively light penalty. it would seem that certain practices of penal justice were no longer supported in the eighteenth century — and perhaps for longer — by the lower strata of the popu]ation. This would explain why executions could easily lead to the beginnings of social disturbances. Since the poorest — it was a magistrate who made the observation (Dupaty, 1786, a~) — could not be heard in the courts of law, it was where the law was manifested publicly, where they were called upon to act as witnesses and almost as co­adjutors of this law, that they could intervene, physically: enter by force into the punitive mechanism and redistribute its effects’ take up in another sense the violence of the punitive rituals. There was agitation against the difference in penalties according to social class:

in 1781, the parish priest of Champr~ had been killed by the lord of the manor, and an attempt was made to declare the murderer insane; ‘the peasants, who were extremely attached to their pastor, were furious and had at first seemed ready to lay violent hands upon their lord and to set fire to the castle. Everyone protested, and rightly, against the indu]gence of the minister who deprived justice of the means of punishing so abominable a crime’ (Hardy, IV, 394).

There was agitation, too, against the excessive sentences passed on certain common offences that were nor regarded as serious (such as house-breaking); or against punishments for certain offences con­nected with social conditions such as petty larceny; the death penalty for this crime aroused a great deal of discontent, because there were many domestic servants in a single household and it was difficult for them, in such a case, to prove their innocence, and also because they could easily be victims of their employers’ spite and because the indulgence of certain masters who shut their eyes to such behaviour made the fate of servants accused, condemned and hanged even more iniquitous. The execution of such servants often gave rise to protests (cC. Hardy, 1, 319, 367; III, 227 8; IV, i8o). There was a small riot in Paris in 1761 in favour of a servant woman who had stolen a piece of cloth from her master. Despite the fact that the woman admitted her guilt, handed back the material and begged for mercy, the master refused co withdraw his complaint; on the day of the execution, the local people prevented the hanging, invaded the merchant’s shop and looted it; in the end, the servant was pardoned, but a woman, who attempted, unsuccessfully, to stick a needle into the wicked master, was banished for three years (Anchel, 226).

One remembers the great legal affairs of the eighteenth century, when enlightened opinion intervened in the persons of the piziloso.. pize~ and certain magistrates: Calas, Sirx’en and the Chevalier de La Barre, for instance. But less attention is given to the popular agita­tions caused by punitive practice. Indeed, they seldom spread be­yond a town, or even a district. Yet they did have a real importance. Sometimes these movements, which originated from below, spread and attracted the attention of more highly placed persons who, taking them up, gave them a new dimension (in the years preceding the Revolution, the affair of Catherine Espinas, falsely convicted of parricide in 1789, or the case of the three men of Chaumoni, con­demned to the wheel, for whom Dupaty, in 1786, wrote his cele­brated memoir, or that of Marie Fran~oise Salmon, whom the parlement of Rouen in 1782 had condemned to the stake, for poison­ing, but who in 1786 had still not been executed). More usually, those disturbances had maintained around penal justice and its manifestations, which ought to have been exemplary, a state of permanent unrest. How often had it proved necessary, in order to

ensure order around the scaffolds, to take steps that were ‘distressing to the people’ and ‘humiliating for the authorities’ (Argenson, 24I)? It was evident that the great spectacle of punishment ran the risk of being rejected by the very people to whom it was addressed. In fact, the error of the public execution created centres of illegality:

 

on execution days, work stopped, the taverns were full, the authori­ties were abused, insults or stones were thrown at the executioner, the guards and the soldiers; attempts were made to seize the con­demned man, either to save him or to kill him more surely; fights broke out, and there was no better prey for thieves than the curious throng around the scaffold. (Hardy recounts a number of cases like the important theft that was committed in the very house in which the police magistrate was lodging — IV, ~6.) But above all — and this was why these disadvantages became a political danger — the people never felt closer to those who paid the penalty than in those rituals intended to show the horror of the crime and the invincibility of power; never did the people feel more threatened, like them, by a legal violence exercised without moderation or restraint. The solid­arity of a whole section of the population with those we would call petty offenders — vagrants, false beggars, the indigent poor, pick­pockets, receivers and dealers in stolen goods — was constantly expressed: resistance to police searches, the pursuit of informers, attacks on the watch or inspectors provide abundant evidence of this (cf. Richet, ii 8—i 9). And it was the breaking up of this solidar­ity that was becoming the aim of penal and police repression. Yet out of the ceremony of the public execution, out of that uncertain festival in which violence was instantaneously reversible, it was this. solidarity much more than the sovereign power that was likely to emerge with redoubled strength. The reformers of the eighteenth and nineteenth centuries were not to forget that, in the last resort, the executions did not, in fact, frighten the people. One of their first cries was ~o demand their abolition.

 

To clarify the poIi~3cal problem posed by the intervention of the people in the spectacle of the executions, one need only cite two events. The last took place at Avignon at the end of the seventeenth century. it contained all the principal elements of the theatre of-’horror: the physical confrontation between the executioner and the condemned man, the reversal of the duel, the executioner pursued

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by the people, the condemned mart saved by the ensuing riot and the violent inversion of the penal machinery. A murderer by the name of Pierre du Fort was to be hanged; several times he ‘had aught his feet in the steps’ and had not been able to swing freely. ‘Seeing this, the executioner had pulled his jerkin up over his face and struck him below the knees, on the stomach and on the belly. When the people saw that the executioner was causing him too much pain, and even believing that he was killing him down there with a bayonet ... moved by compassion for the patient and fury at the executioner, they threw stones at the scaffold just as the executioner knocked away the two ladders and threw the patient down and leaped on to his shoulders and kicked him, while the wife of the said executioner pulled at his feet from under the gallows. In doing so, they made blood come from his mouth. But the hail of stones came thicker — one stone even struck the hanged man on the head — which forced the executioner to dash to the ladder, which he descended so rapidly that half-way down he fell from it, and struck his head on the ground. Then a crowd of people fell upon him. He got to his feet, bayonet in hand, threatening to kill anyone who came near him; after falling several times, he finally got to his feet, only to be beaten by the crowd, rolled in the mud and nearly drowned in the stream, then dragged by the excited and enraged crowd to the University and to the Cordeliers Cemetery. His servant was also beaten and, with bruises on his head and body, was taken to the hospital where he died some days later. However, some strangers and unknown people mounted the ladder and cut the rope while others caught the hanged man from below after he had been hanging there longer than it took to say a full Miserere. The crowd then smashed the gallows and broke the executioner’s ladder into pieces. Children carried off the gallows and threw it into the Rh6ne.’ The condemned man was then taken to a cemetery ‘so that he should not be recaptured by the law and from there to the church of Sainte-Antoine’. The archbishop gave him his pardon, had him taken to the hospital and asked that particular care be taken of him. Lastly, adds the writer of the account, ‘we had a new suit, two pairs of stockings and shoes made for him. We dressed him in new clothes from head to toe. Our colleagues gave him shirts, breeches and a wig’ (Duhamel, ~—6; scenes of this kind were still]l taking

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place in the nineteenth century — cf. Lawrence, 56 and 195—8). The other event took p]ace in Paris, a century later. It was in 1775,

shortly after the corn riot. Because of the state of extreme tension -among the people, the authorities wanted the execution to take p]ace without interruption. Between the scaffold and the public, kept at a safe distance, two ranks of soldiers stood on guard, one facing the execution that was about to take place, the other facing the people in case of riot. Contact was broken: it was a public execution, but one in which the element of spectacle was neutra]ized, or rather reduced to abstract intimidation. Protected by force of arms, on an empty square, justice quietly did its work, if it showed the death that it had dealt, it was from high and far: ‘The two gallows, which were eighteen feet high, no doubt by way of an example, were not set up until three o’clock in the afternoon. From two o’clock, the Place de Gr~ve and all the surrounding streets had been filled with detachments of different troops, some on foot, some on horse; the Swiss and the French guards continued to patrol the adjacent streets. No one was allowed on to the Gr~ve during the execution, and all around one could see a double row of soldiers, ­bayonets a~ the ready, standing back to back, so that some looked outwards and some mb the square; the two wretches. .. cried out a!] the way that they were innocent and continued to protest in like manner as they mounted ihe ladder’ (Hardy, 111, 6~). Whatever the part played by feelings of humanity for the condemned in the abandonment of the liturgy of the public executions, there was, in any case, on the part of the state power, a political fear of the effects of these ambiguous rituals.

Such an equivocal attitude appeared clearly in what might be called the ‘gal]ows speeches’. The rite of execution was so arranged that the condemned man would himself proclaim his guilt by the amende /honorable that he spoke, by the placard that he displayed and also by the statements that he was no doubt forced io make. Furthermore, at the moment of the execution, it seems that he was given another opportunity to speak, not to proclaim his innocence, but to acknowledge his crime and the justice of his conviction. The chronicles relate a good many speeches of this kind. Were they actually delivered? In a number of cases, certainly. Or were they

6ctional speeches that were later circulated by way of example and exhortation? This, no doubt, was more often the case. What credit are we to accord, for example, to the account of the death of Marion Le Goff, who had been a famous bandit leader in Brittany in the mid-eighteenth century? She is supposed to have cried out from the scaffold: ‘Fathers and mothers who hear me now, watch over your children and teach them well; in my childhood I was a liar and good­for-nothing; I began by stealing a small six-hard knife.. Then I robbed pedlars and cattle dealers; 6nally, I led a robber band and that is why I am here. Tell all this to your children and let it be an example to them’ (Corre, Such a speech is too close, even in its turn of phrase, to the morality traditionally to be found in the broadsheets and pamphlets for it not to be apocryphal. But the existence of the ‘last words of a condemned man’ genre is in itself significant. The law required that its victim should authenticate in some sense the tortures that he had undergone. The criminal was asked to consecrate his own punishment by proclaiming the black­ness of his crimes; he was made to say, as was Jean-Dominique Langlade, three times a murderer: ‘Listen to my horrible, infamous and lamentable deed, committed in the city of Avignon, where the memory of me is execrable, for having inhumanly violated the sacred rites of friendship’ (Duhamel, 32). In one sense, the broad-sheet and the death song were the sequel w the trial; or rather they pursued that mechanism by which the public execution transferred the secret, written truth of the procedure to the body, gesture and speech of the criminal. Justice required these apocrypha in order to be grounded in truth. Its decisions were thus surrounded by all these posthumous ‘proofs’. Sometimes, too, accounts of crimes and infamous lives were published, simply as propaganda, before any trial had taken place, in order to force the hand of a court that was suspected of being too tolerant. In order to discredit smugglers, the Compagnie des Ferines published ‘bulletins’ recounting their crimes: in i76S, it distributed broadsheets against a certain Montagne, the leader of a gang, of whom the writer himself says: ‘Some thefts have been ascribed to him the truth of which is somewhat uncertain.. .; Montagne has been depicted as a wild beast, a second hyena to be hunted down; given the hotheads of the Auvergne, this idea has caught on’ (cf. Juillard, 24).

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But the effect, like the use, of this literature was equivocal. The condemned man found himself transformed into a hero by the sheer extent of his widely advertised crimes, and sometimes the affirmation of his belated repentance. Against the law, against the rich, the powerful, the magistrates, the constabulary or the watch, against taxes and their collectors, he appeared to have waged a struggle with which one all too easily identified. The proclamation of these crimes blew up to epic proportions the tiny struggle that passed unperceived in everyday life. If the condemned man was shown to be repentant, accepting the verdict, asking both God and man for forgiveness for his crimes, it was as if he had come through some process of purification: he died, in his own way, like a saint. But indomitability was an alternative claim to greatness: by not giving in under torture, he gave proof of a strength that no power had succeeded in bending: ‘On the day of the execution — this will seem scarcely credible — I showed no trace of emotion, as I performed my amende honorable, and when I finally lay down on the cross I showed no fear’ (the Complainte of J.-D. Langlade, executed at Avignon 12 April 1768). Black hero or reconciled criminal, defender of the true right or an indomitable force, the criminal of the broadsheets, pamphlets, almanacs and adventure stories brought with him, be-. neath the apparent morality of the example not w be followed, a whole memory of struggles and confrontations. A convicted criminal could become after his death a sort of saint, his memory honoured and his grave respected. (This was the case of Tanguy, executed in Brittany about 1740. Before being convicted, ic is true, he had begun a long penitence ordered by his confessor. Was this a conflict between civil justice and religious penitence? CC. Corre, 21.) The criminal has been almost entirely transformed into a positive hero. There were those for whom glory and abomination were not dis­sociated, but coexisted in a reversible figure. Perhaps we should see this literature of crime, which proliferated around a few exemplary figures,5 neither as a spontaneous form of ‘popular expression’, nor as a concerted programme of propaganda and moralization from above; it was a locus in which two investments of penal practice met a sort of battleground around the crime, its punishment and its memory. If these accounts were allowed to be printed and circu­lated, it was because they were expected w have the effect of an

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ideological control — the printing and the distribution of these almanacs, broadsheets, etc. was in principle subject to strict control. But if these true stories of everyday history were received so avidly, if they formed part of the basic reading of the lower classes, it was because people found in them not only memories, but also prece­dents; the interest of ‘curiosity’ is also a political interest. Thus these texts may be read as two-sided discourses, in the facts that they relate, in the effects they give to these facts and in the glory they confer on those illustrious’ criminals, and no doubt in the very words they use (one should study the use of such categories as ‘misfortune’ or ‘abomination’ or such epithets as ‘famous’ or ‘lamentable’ in accounts such as The History of the Lift, Great Robberies and Tricks of Guilleri and his Companion-s and of their Lamenw~Ue and Unhappy End.

Perhaps we should compare this literature with the ‘disturbances around the scaffold’ in which, through the tortured body of the criminal, the power that condemned confronted the people that was the witness, the participant, the possible and indirect victim of this execution. In the wake of a ceremony that inadequately channeled the power relations it sought to ritualize, a whole mass of discourses appeared pursuing the same confrontation; the posthumous proclamation of the crimes justified justice, but also glorified the cri­minal. That was why the reformers of the penal system were soon demanding suppression of these broadsheets.7 That was why the people showed so lively an interest in what served more or less as the minor, everyday epic of illegalities. That was why the broad-sheets lost their importance as the political function of popular illegality altered.

And they disappeared as a whole new literature of crime deve­loped: a literature in which crime is glorified, because it is one of the fine arts, because it can be the work only of exceptional natures, because it reveals the monstrousness of the strong and powerful, because villainy is yet another mode of privilege: from the adventure story to de Quincey, or from the Castle of Otrwzro to Baudelaire, there is a whole aesthetic rewriting of crime, which is also the appropriation of criminality in acceptable forms. In appearance, it is the discovery of the beauty and greatness of crime; in fact, it is the affirmation that greatness too has a right to crime and that it even
 

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becomes the exclusive privilege of chose who are really great. The great murders are not for the pedlars of petty crime. While, from Gaboriau onwards, the literature of crime follows this first shift: by his cunning, his tricks, his sharp-wittedness, the criminal represented in this literature has made himself impervious to suspicion; and the struggle between two pure minds — the murderer and the detective —will constitute the essential form of the confrontation. We are far removed indeed from those accounts of the life and misdeeds of the criminal in which he admitted his crimes, and which recounted in detail the tortures of his execution: we have moved from the exposition of the facts or the confession to the slow process of discovery; from the execution to the investigation; from the phy­sical confrontation to the intellectual struggle between criminal and investigator. It was not only the broadsheets that disappeared with the birth of a literature of crime; the glory of the rustic malefactor and his somber transformation to a hero by the process of torture and execution went with them. The man of the people was now too simple to be the protagonist of subtle truths. In this new genre, there were no more popular heroes or great executions; the criminal was wicked, of course, but he was also intelligent; and although he was punished, he did not have to suffer. The literature of crime transposes to another social class the spectacle that had surrounded the criminal. Meanwhi]e the newspapers took over the task of recounting the grey, unheroic details of everyday crime and punish­ment. The split was complete; the people was robbed of its old pride in its crimes; the great murders had become the quiet game of the well behaved.
 

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