Trials of the self
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Trials of the self

Murder, mayhem and the remaking of the mind, 1750–1830

Elwin Hofman, Joseph Bergin, William G. Naphy

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eBook - ePub

Trials of the self

Murder, mayhem and the remaking of the mind, 1750–1830

Elwin Hofman, Joseph Bergin, William G. Naphy

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About This Book

This highly original study brings together the disparate histories of murder and enlightenment, prostitution and the cult of nature, sodomy and sentimentalism in order to retell the story of the making of the modern self. It suggests that the history of the self needs to attend more to its class dimensions, and puts this insight into practice by examining the influence of the criminal courts in spreading and negotiating changing ideas of the self. Using criminal interrogations and witness statements, Trials of the self shows that an increasing stress on psychological depth in the late-eighteenth and early nineteenth centuries was not only important for elites, but also for common and illiterate people – sometimes even more so.

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Year
2021
ISBN
9781526153135
1
The self in court: procedures of conscience and confession
In 1757, Joanne Catherine Janssens stood trial for breaking banishment and complicity to murder before the magistrates in Kortrijk. Janssens was involved with a band of vagrant ‘Egyptians’. According to witness statements, they had broken into the house of Joannes van Gampelaere near Tielt on 15 September 1757. Janssens, who was acquainted with Gampelaere’s wife, had talked her way in and then the rest of the band had burst in, robbed the house and stabbed the owners. The Kortrijk magistrates sent word to other cities to arrest all gypsies and two women were arrested in Ghent, one of whom was identified as Janssens. She was transferred to Kortrijk, where she denied that she had been involved in the robbery and murder.1
The local magistrates soon found out that judges in Liùge had previously convicted Janssens for robberies and branded her. She had been exiled from the Southern Netherlands. The magistrates seemed to agree that this allowed them to take harsher measures than usual. On 10 November, the prosecutor went to visit Janssens in prison. Having been imprisoned for almost a month, she asked him whether her case would come up soon. He replied that she could be imprisoned for a long time, as she had denied her presence in the murder. Janssens asked ‘if she had been present, and if she confessed this, would she need to die?’ The prosecutor said that he did not think so. She then confessed that she had been present at the murder scene, but had not been involved and had not been aware of what the others were up to.
Two weeks later, however, Janssens retracted this confession. She claimed that she had only confessed because the prison guard had recommended this. Nevertheless, the magistrates wanted their confession and condemned Janssens to torture. When she was brought to the torture chamber, Janssens immediately confessed that she had been present in the murder, but said that she had been forced by her companions to go along. A month later, the court condemned her to death by hanging.
In the quest for the truth, the judiciary personnel had threatened Janssens, lied to her and condemned her to torture.
How can we understand this criminal procedure? And what does it tell us about the self as practised in criminal procedures? In this chapter, I discuss the changing procedures of criminal investigation and criminal justice in the Southern Netherlands between 1750 and 1830 within their wider European context. My aim is not, however, to write a history of legal doctrines and practices – although that is a necessary part of my analysis. My aim is rather to analyse the underlying suppositions of the criminal justice system, looking for the conceptions of self that were inherent in the workings of criminal courts. The criminal trial was a technology for transforming the self, a technology that both legal staff and defendants used in different ways and to different ends. This chapter will provide an analysis of criminal trials as I argue that they became increasingly focused on people’s inner sides, thus deepening these inner sides and making them more important, especially for women and common people. To do this, I will subsequently discuss criminal procedures in general, the uses of torture, the reforms of criminal justice, confession and resistance to it and the effects of giving an account of oneself in criminal court.
Procedures of truth
The legal system of the eighteenth-century Southern Netherlands was, in many respects, similar to how it had been since the late Middle Ages. In contrast with France, where an ordinance from 1670 regulated criminal procedure, and many other Habsburg territories, where the Constitutio Criminalis Carolina (1532) did the same (though less strictly), there was no unified criminal code.2 Different towns, cities and counties had different regulations and legal procedures. There were central government regulations, regional state regulations and city regulations, local traditions and recommendations by legal scholars. This ‘legal pluralism’ gave the people involved in criminal justice a limited flexibility.3 Nevertheless, even though each court had its own procedural peculiarities, most continental European courts operated in a similar way, in part resulting from the fact that they all referred to similar legal scholars to guide them.4
With some exceptions, urban courts monopolised criminal justice in the Southern Netherlands. Citizens could turn to informal or local means to resolve minor disputes, but major crimes were almost always brought before the aldermen of the nearest town or city.5 The ‘officers of justice’ (the hoogbaljuw in Kortrijk, the schout in Antwerp and the amman in Brussels) were generally responsible for the detection and prosecution of crimes. Because they had few staff, they most commonly only came into action upon a complaint, or when someone found a corpse (surveillance and occasional raids in larger cities notwithstanding).
Once an officer of justice had learned of a serious crime, caught someone in the act or received a complaint, he was to investigate and inform the magistrates of his findings. In some jurisdictions, the officer of justice conducted this preliminary investigation himself; in others a delegation of the magistrates did this. They inspected the scene of the crime, called for experts to conduct a post-mortem and heard witnesses. Clerks wrote everything down more or less diligently.6 If the initial investigation of a crime had been up to the officer of justice, the magistrates were to play a decisive role in the rest of the trial.7 The magistrates consisted of the mayor (in Kortrijk) or two mayors (in Brussels and Antwerp) and between seven and eighteen aldermen of a particular town or city, sometimes accompanied by additional councillors. The central government selected them from a shortlist of nominees submitted by the current bench of aldermen (or other city notables) and appointed them for a limited term. They were always men and always members of aristocratic families or wealthy merchants and had generally not received legal training.8 The magistrates based their decisions mostly on the written court records and acted as a single body. In the trial proceedings, as in most other documents, there are never indications of internal dissent. While magistrates undoubtedly held different opinions, they are difficult to retrieve.9
To decide whether a suspect was guilty, judges were not simply to trust their own opinion. In the thirteenth century, after the abolition of the judicial ordeals, Roman-Canon legal scholars developed an intricate system of proofs to determine the degree of a suspect’s guilt. Most continental European secular criminal courts adopted this system by the sixteenth century. As a rule, judges needed ‘full proof’ to convict anyone to death. Such ‘full proof’ could consist of testimony by two independent and reliable eyewitnesses or of a confession corroborated by a few other indicators. For convictions of lesser sentences, lower standards of proof were required. For corporal punishment short of death, ‘semi proof’ – for instance testimony of a single reliable eyewitness – sufficed. Prostitutes could be expulsed or temporarily confined on the flimsiest of evidence.10 Although courts officially still used the system of proof in the eighteenth century, they almost never applied the complicated arithmetic some legal scholars had proposed in earlier centuries. Most magistrates settled for the vague requirement that proof of guilt had to be ‘clearer than daylight’.11 This left the judges some room for appreciation of the evidence.
Like many of their French and German colleagues, judges in the Southern Netherlands almost always wanted a full confession before convicting someone to death – even if there was sufficient testimonial proof for a conviction. A confession was the ‘queen of proofs’. ‘However certain testimonial proof may be [
]’, wrote the local alderman J. G. Thielen in his commentary on criminal procedure in 1789 (plagiarising his French colleague Daniel Jousse), ‘we can nevertheless reasonably say that this proof may be in error [
]; while a confession, and the knowledge of the accused, is incontestable’.12 The central government officially discouraged any reluctance to convict anyone who did not confess, but it continued up to the eighteenth century.13 In 1766, the council of Brabant argued that even when there was enough proof to convict a criminal, torture was a ‘humane’ instrument, for ‘it served admirably to tranquilise the conscience and the heart of the judge’, who was now sure he was not convicting an innocent man or woman.14
To obtain a confession from recalcitrant suspects, torture could indeed be a solution. But everywhere in Europe, its use in a judicial context was strictly regulated. Before magistrates could apply torture, they had to convict the suspect by an interlocutory sentence. They could only issue this sentence if the material fact of the crime had been proven, if the crime was capitally punishable and if there were strong indications of the suspect’s guilt.15 According to most European jurists, the court needed a ‘half proof’ (e.g. one reliable eyewitness).16 The most common means of torturing suspects were flogging, stretching on the rack or the gradual tightening of a collar with metal pins on the inside. As in eighteenth-century France and Germany, if suspects confessed under these torments, their confession was only legally valid if they confirmed it afterwards, when they were free from pain or restrictions. If they did not confess or retracted their confession, they could not be convicted to death, but they could be convicted to a lesser sentence – or, in some cases, to another torture session.17
When the court was of the opinion that there was sufficient evidence, they closed the case and pronounced a sentence. The judges could find the suspect innocent or guilty, or they could release the suspect under caution because they were undecided. In both cases, they could condemn the defendants to the payment of the legal costs anyway.18 The legal reasoning behind this was that they were partially guilty by portraying suspicious behaviour.19 If they found a defendant guilty, judges pronounced punishments ranging from fines and short-term confinements on water and bread, over declarations of infamy and public whippings, to banishment and death in many varieties. As in most German courts, but unlike in most French courts, defendants generally had no possibility to appeal.20 Convicts could only apply for grace, which I will discuss in the next chapter. If they did not, or if the monarch rejected their application, the court executed sentences as soon as possible.
The eighteenth-century criminal procedure did not generate much discourse on matters of the self or interiority. The ‘law of proof’, which guided criminal courts, aimed to find the truth about criminal acts, not about the criminals themselves. Criminal courts required proof that an individual had committed a crime and did not, at least in theory, care much about motivations or explanations. The criminal justice procedures thus promoted an outward-oriented self, perhaps malleable but rarely explicitly so. Above all, however, the individual psyche was marginal to the criminal procedure.21
The temptations of torture
Although torture was relatively rare in the eighteenth century across most of Europe, the practice demonstrates the law’s attitude towards the self quite clearly. The justification of regulated judicial torture related to the Christian idea that pain and suffering were meaningful and productive. The classic idea behind torture was that by inflicting pain on suspects, their inherently sinful will would be crushed. While in severe pain, people would not be able to concoct false arguments. Pain – and not threats or promises, which defenders of torture decried – would lead to truth. A narrative revealed under torture – a spontaneous truth of the body – was therefore seen as more reliable than any voluntarily disclosed answer.22 This implied a specific view of the self: the mind was deceitful, but the body would reveal the truth when t...

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