Crime and Punishment

The greater insecurity and consequent hardening of attitudes in the latter decades of the century understandably increased concern for law and order. Yet parlementaires exhibited what may seem surprising moderation in dealing with crime. Each Parlement was virtually autonomous in its own jurisdiction, with little restraint imposed by either royal edicts or rules of procedure.^[46]

Consistent with concern for society, already noted, individual criminal acts often met with a considerable degree of tolerance. Jonathan Dewald's studies of Rouen show that even homicides were often pardoned; fewer than one-third of those accused in his sample were executed. If the family was victimized, however, the reaction of the court was often strikingly different. Infanticide especially, which was regarded as the archetypical crime, was severely punished (90 percent hanged). Sixteenth-century writers, including Henri d'Estienne and Jean Bodin, emphasized the "unnatural"

character of this crime, hard to prove much of the time but threatening to society in its implications. The association with parricide, and the extension of the latter to regicide in the League period, made the emotional "loading" of these crimes very great.^[47]

It was less a particular crime in itself that provoked a severe sentence than the effect on the social fabric. Adultery, for example, might receive a simple admonition, but if the wife ran off with her lover, she might incur the death sentence, as did he. Dewald concludes that there was a "distinction in the magistrates' minds between private vice . . . and those acts of immorality which posed a danger to society at large: which threatened basic social relationships, such as those of the household, or which threatened to upset the ordered existence of the community."^[48]

The incidence of perjury and fraud was great in the litigious society of sixteenth-century France, but these are hard crimes to prove. If convicted, however, one would expect a severe sentence for violation of the trust in the validity of contracts on which society depended. Brigandage, that is, violence against property, even though no homicide was involved, was very severely judged because it constituted an attack on ordered society by "outsiders," who must be kept at bay if they could not be contained. In Rouen Dewald finds an increase of crimes against the family and the community in the latter part of the century, with a concomitant increase in severity on the part of the court, both natural results of civil war, and domestic upheaval. He attributes the court's shift more to Parlement's increased control of the rural areas where such crimes were very numerous than to Counter-Reformation stiffening of standards, but since all these phenomena coincided in time, it is hard to ascertain the casual relations accurately.^[49]

The Mémoires-Journaux record thousands of crimes, but except that all are signs of the evil times, there is no systematic treatment. What we would call today "white-collar crime" is evidence of the power of money and the prevalence of corruption among those who "should know better" and have betrayed their honor. Quite different are the bizarre crimes, usually committed by individuals in the menu peuple , which are treated in the same way as monstrous births or the appearance of comets and other extraordi-

nary phenomena in nature. These are visited on society to indicate God's wrath, as "signs" or warnings, but they are never seriously interpreted except by a few pious souls (like L'Estoile). For instance, in March 1607,

two of the greatest, most famous, notorious robbers of Europe were broken on the wheel in Tours. Just before they died they confessed having committed up to 120 murders. One . . . confessed all and died repentant with great expressions of contrition . . . the other, on the contrary, made an end that matched his life. M. de Graville, secrétaire du roi , has promised to show me the transcript of the proceedings, one of the fine writings of these times and worthy to be saved.

Blasphemous crimes, like sorcery, might call forth extreme measures. A group described as comprising "sorcerers and counterfeiters" was executed in Paris in September 1608. They were accused of holding secret meetings at night in the ditches near Montfaucon, where they allegedly recited the mass backwards, using the body of the Devil instead of that of Christ in their communion. L'Estoile comments,

These would seem to me nothing more than the tales of senile old women except that the iniquity of the times, the disappearance of charity, the trampling of the fear of God underfoot, lend a good deal of weight to tales of such abominations. When injustice, avarice, gambling, and blasphemy are permitted, as they are today, in Paris itself, where les grands set the example, they drag long tails of evil behind them.^[50]

Sorcery is a crime of particular relevance because of its frequent linkage with heresy in sixteenth-century minds. Alfred Soman has worked directly on the handling of sorcery cases in the Parlement of Paris for many years. Through careful analysis of the difficult—and often hitherto unexplored—sources in the police archives, he corrects the impression of earlier scholars that Parlement "automatically confirmed the death sentences of the lower courts." On the contrary, Parlement showed "astounding clemency" in sorcery cases. Between 1564 and 1600 only 30 percent of the death sentences appealed were confirmed, and a majority of the accused was eventually released after a more moderate punishment. Criminal justice was much more rapid than civil justice: most judgments were issued within a month of the accused's imprisonment, and a stay of more than three months in the Conciergerie was exceptional. Soman adds that the vocabulary used sometimes conceals the real extent of parlementaire clemency, "corporal

punishment, for instance, might mean a lifetime in the galleys but it might also mean a 'short' beating." Ninety percent of all sentences (outside the confirmed death sentences) were softened, by comparison with those of the lower courts.^[51]

By the early seventeenth century there was a dramatic decline in sorcery cases, accelerating after the assassination of Henri IV, such that Soman could discuss the decriminalization of sorcery in his 1985 article (the seventh on the subject). Between 1610 and 1620 executions fell to 4.1 percent of those accused (compared to 10.8 in the previous five years), applications of torture to 2 percent (compared to 5.6 percent), while the percentage released rose from 36 to 43 percent. Absolutions and declarations of innocence also increased. Historians customarily attribute the decriminalization of sorcery to a shift in mentalités from belief in supernatural causation to belief in scientific causation, but Soman points out that "the Parlement of Paris had already come most of the way [toward the modern view] at the very beginning of the seventeenth century, well before the great debates of the age of reason." He finds similar contemporary patterns in Spain and England and speculates that these three European nations "were differentiated from others not only by geographic unity and fiscal and administrative power, thus [also] military power, but also by the legitimacy of a ruling regime, especially sensitive in its relations to the people [ruled]." As early as the latter part of the reign of François I, medieval punishments were declining and appeals increasing. "Behind the severe . . . language of royal legislation was concealed a clear tendency toward clemency, at lower levels as well as at the top." This modification in criminal procedure was possible thanks to the consolidation (the increasing incidence) of direct appeal to the Parlement: "a guarantee against cheating, abuse, and false [unjustifiable] zeal [by the accusers]."^[52] Suborning of witnesses and dishonesty of judges, the worst of the previous offenses, were thus drastically reduced.

What was intolerable to the Parlement, was the complicity of officers of justice in the name of justice . . . . During the wars of religion, the dignity of the magistracy seemed tarnished (rightly). The theme is constantly repeated in the presentation of cases.^[53]

It is noteworthy that the examples of parlementaires' concern Soman cites come from members of the parquet who figure among the important spokesmen of our latest generation, Jacques de La Guesle, Louis Servin, Jacques Faye. This is doubly relevant to the present study of parlementaire mentalité : it shows a coincidence with the lesser severity than previously thought (as Soman shows), and it reveals that some leading praticiens , when dealing with real cases, resembled more le parfait magistrat than those so often castigated as self-serving and corrupt.

Another element in the pattern of lessening severity in parlementaire sentences has recently been highlighted by Natalie Zemon Davis. Her particular emphasis is on the "story" through which the circumstances and facts of the crime and the justification of an appeal for pardon are presented by the condemned person. She stresses also the part played by intermediaries through whom the appeals reach the king, "from whom all justice flows," as Pasquier reminded us, "usually through the sovereign courts." When the king sent letters of remission to the Parlement, ratification was predictable. For example, "Of all the people who were in [the Conciergerie] awaiting judicial review of their letters from 1564, when the register begins, to 1580, only 6.5 percent were deprived of the king's grace."^[54] A few lines later Davis comments, "the success rate of remission letters goes beyond the strength of the story, as the supplicant was integrated into the larger build-up of monarchical power. . . . From the Ordinance of Blois . . . through the Republic of Jean Bodin, pardon was celebrated as one of 'the fairest marks of sovereignty."' And Claude Expilly, of whom we shall hear again, said, "Kings have always glorified themselves through their clemency."^[55]

No sovereign was ever more skilled in the exercise of clemency than Henri IV. Davis shows that a significant factor in the success of the remission-pardon process was that the supplicant had to play "by the king's rules, . . . and not recount his adventures as though he were a hero in a folk-tale. . . . The habit of language insisted upon in the letters of remission and the roles in which supplicants were required to present themselves were among the civilizing mechanisms of the early modern French state, reminding people subjectively of the locus of power ."^[56] Among those "reminded," not least were the members of the sovereign courts, who found themselves

increasingly caught in the conflict between representation or transmission of royal power and attrition of their own by the increase in that power.