Yet, despite these divergencies, jurists [of the 17th and 18th centuries] held firmly to the principle that 'imprisonment is not to be regarded as a penalty in our civil law' (Serpillon, 1095 - however, one does find in Serpillon the idea that the rigour of imprisonment is the beginning of a penalty). Its role is rather that of holding the person and his body as security: ad continendos homines, non ad puniendos, as the tag has it; in this sense, the imprisonment of a suspect has a role similar to that of a debtor. Through imprisonment, one has security for someone, one does not punish him. This was the general principle. And although imprisonment sometimes served as a penalty, even in important cases, it did so essentially as a substitute: it replaced the galleys for those - women, children, invalids - who could not serve there: "The sentence of imprisonment for a term or for life is equivalent to being sent to the galleys." In this equivalence, one can see clearly enough the emergence of a possible connection. But, for this to take place, the prison had to change its juridical status.
It was also necessary to overcome a second obstacle, which, for France at least, was a considerable one. Imprisonment was especially disqualified for this role by the fact that it was, in practice, directly bound up with arbitrary royal decision and the excesses of the sovereign power. The "maisons de force," the general hospitals, the "king's orders" or the orders of the police magistrates, letters under the king's private seal obtained by notables or by families, constituted a whole repressive practice, juxtaposed with 'regular justice' and more usually opposed to it. And this extra-judicial imprisonment came to be rejected by both classical jurists and reformers. Prisons are made by princes, said a traditionalist like Serpillon, who sheltered behind the authority of Judge Bouhier: "Although, for reasons of state, princes are sometimes inclined to inflict this penalty, ordinary justice makes no use of this kind of sentence" (Serpillon, 1095). Detention was described by the reformers in innumerable statements as a figure and privileged instrument of despotism: "What is one to say of those secret prisons conjured up by the fatal spirit of monarchism, reserved in the main either for philosophers, in whose hands nature has placed her torch and who dared to enlighten their century, or for those proud independent souls who lack the cowardice to keep silent on the ills of their country; prisons whose gloomy doors are opened by mysterious letters and swallow up forever its unfortunate victims?"
... No doubt these protests, coming from such diverse sources, are directed not at imprisonment as a legal penalty, but at the "illegal" use of arbitrary, indeterminate detention. Nevertheless, imprisonment was seen, generally speaking, as branded by the abuses of power. And many cahiers de doléances rejected it as incompatible with good justice. Sometimes in the name of classical juridical principles: "Prisons were intended by the law not to punish but to secure the persons of the offenders..." (Desjardin, 477). Sometimes in the name of the effects of imprisonment, which punishes those who have not yet been convicted, which communicates and generalizes the evil that it ought to prevent, and which runs counter to the principle of the individuality of penalties by punishing a whole family; it was said that "imprisonment is not a penalty. Humanity rises up against the frightful thought that it is not a punishment to deprive a citizen of his most precious possession, to plunge him ignominiously into the den of crime, to snatch him from everything that is dear to him, to bring him perhaps to ruin and to deprive not only him but his unfortunate family of all means of subsistence" (Desjardin, 483). And, on several occasions, the cahiers demanded the abolition of those "houses of internment": "We believe that the maisons de force must be razed to the ground..." And the decree of 13 March 1790 ordered the freeing of "all persons detained in castles, religious houses, maisons de force, maisons de police or any other prisons, by orders under the king's private seal or by orders of the agents of the executive power."
How then could detention, so evidently bound up with an illegality that was denounced even in the power of the prince, become in so short a time one of the most general forms of legal punishment?
Michel Foucault, Discipline and Punish, trans. Alan Sheridan
