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Deviancy

Colonial society bred little crime. Although crime increased in absolute numbers from the seventeenth through the eighteenth centuries, the population expanded more rapidly. Colonial Americans nonetheless had a fearsome interest in controlling social deviancy, and the repeated denunciations of licentiousness and vice in every colony confirm that they worried a good deal about crime, even though it was far less pervasive than today.

The low but growing incidence of crime was largely a social artifact. Total populations were small, and especially in the seventeenth century everyone had a place in which he or she was known to live. Homicide, for example, was often the product of frustration rather than premeditation; it was a violent explosion of built-up social pressures. The cramped quarters in which colonial families lived appear to have been fertile ground for the small numbers of violent crimes. Francis Brooke, for example, became convinced that his wife was pregnant by another man, and he abused her badly on several occasions. He finally attempted an abortion with a pair of tongs, and a badly bruised child was born dead. Brooke claimed that his wife had fallen from a peach tree; the doubtless terrified woman agreed. He received from the court only a warning of God's wrath. 5

By the eighteenth century, with the appearance of the wandering poor, larger towns, and greater geographic mobility, the consensual nature of early American society ebbed. The greater ethnic heterogeneity further disrupted old social bonds. Homicides, assaults, and thievery occured more frequently, and those persons charged with capital crimes seem to have had a significantly greater history of mobility than did the average colonist. Geographic mobility freed the already alienated felon from the informal mechanisms of social control: family, neighborhood, and religious congregation. For example, John Smith, a prominent counterfeiter, traveled throughout the colonies before being caught and hanged at Albany, New York in 1773.

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Crimes against property, which had seldom been prosecuted in the seventeenth century, appeared with greater frequency on court dockets. Only with the emergence of conspicuous wealth at the end of the colonial era do we find sufficiently compelling motives for individuals to become career criminals. Owen Sullivan, the most notorious criminal in colonial America (he had six aliases), was the acknowledged leader of a gang of counterfeiters (that included John Smith) operating throughout New England and New York; like Smith's, his life ended on the gallows.

Americans made social discipline the handmaiden of moral behavior. The Bible and religion were important sources of authority for criminal law, more so in New England than elsewhere. In four of the five colonies in which radical Protestantism prevailed, the Bible furnished transcendent precedents for criminal law. Even in the Chesapeake and southern colonies, which most fully embraced English criminal law sources, an offense against God was also an offense against society.



The close equation of crime with sin and of biblical phrases with statutory language should not obscure the most important source of early American criminal rules: English law. All of the original thirteen colonies derived most of their substantive criminal law from England, but the colonists seem to have been far more influenced by the criminal reform movement in England than were the English. Francis Bacon and Matthew Hale had urged major reforms in criminal law, and colonial legislators knew of and appreciated their efforts.

By our modern standards, colonial criminal law seems harsh, even ruthless. Quakers had their ears cropped, witches were hanged, riotous slaves were burned at the stake, and even some forms of torture were recognized. The Body of Liberties of 1641 in Massachusetts approved torture when "it is very apparent there be other conspirators, or confederates with him. Then he may be tortured, yet not with such Tortures as be Barbarous and Inhumane." 6 In the famous Salem witchcraft trials of 1692, Giles Corey, who refused to enter a plea, was subjected to the medieval torture of peine forte et dure: heavy weights were laid on his body until, still refusing to plea, he was pressed to death.

Yet, when measured against practices in England and Europe generally, colonial America's criminal law was less severe. In the late seventeenth century, for example, only eleven crimes in Pennsylvania were punishable by death, while in England the number was fifty, and that number expanded over the next century to more than two hundred. Moreover, of the eleven capital crimes, only murder and treason mandated capital punishment. The executioner played an important role as a guardian of the social order, in some places with greater prominence than others. South Carolina, at the beginning of the revolutionary era, had ten times as many capital crimes listed in its legal code as did Massachusetts.

Everywhere in the colonies, judges had great discretion when invoking the death penalty, as did juries. Both could, and did, find defendants guilty of lesser, noncapital crimes. Even when convicted, the condemned had a reasonable chance to escape the hangman, sometimes through the practice of benefit of clergy, other times through commuted sentences. For instance, in New York between 1691 and 1776, 51.7 percent of all persons condemned to death were pardoned. 7

Americans favored what they believed to be the rational and just provisions of English law. Crimes against property offer a striking example. In England, theft was the most common crime, regularly punished by death. The early colonial settlements

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were not plagued by thieves, in part because there was little to steal. What was stolen was often consumable (food and clothing), and under the precarious circumstances of life such theft was often a serious matter. Dale's Code, for example, made such thievery during the "starving time" in Virginia a capital crime.

The death penalty was seldom invoked there or elsewhere for crimes against property. Only one person, Daniel Franke of Virginia, was executed for larceny in the colonies before 1660. He had stolen a calf, a chicken, and a napkin. In the eighteenth century, as the incidence of crimes against property increased, so too did harsher penalties. But the colonists refrained from the terror of English law, reserving capital punishment for crimes against property to repeat offenders. In Maryland, for example, where hogs were valued (as was true of all livestock in colonial America), the death penalty was only meted out to persons convicted for a third offense. First-time offenders were usually subjected to punishments meant to degrade and humiliate: branding, whipping, time in the stocks, and multiple restitution. When two Harvard students in the mid-seventeenth century burgled two homes, the college president whipped both in public and sentenced them to pay double restitution.

The colonies founded in the seventeenth century at first gave broad discretion to judges to define the criminal law. By the beginning of the eighteenth century, however, only about 24 percent of the criminal law was based on common law principles; the rest of it was written in codes.

In New England discretionary justice came under sharper attack than in the other colonies. There, by the end of the seventeenth century, more than 90 percent of all criminal actions were defined by statute. Discretionary justice generated political opposition, and as the colonies grew more heterogeneous there were increasing fears that a particular group would come to control the judiciary. Demographic shifts, the rise of a class of wandering poor, and the first stirrings of commercial activity made greater precision in the criminal law useful. The New England colonies moved first, with the Lawes and Libertyes of Massachusetts in 1641, and then the middle and Chesapeake colonies followed, the last with the least fervor.

In the Chesapeake and southern colonies, wealth was in the land, and it could be unlocked only with the compliance of a subservient work force. In Virginia and Maryland, for example, indentured servants comprised a large portion of the population, and black slaves south of the Chesapeake in the eighteenth century often outnumbered white masters. The tobacco colonies permitted judges significant discretion in sentencing masters found guilty of abusing their servants, apprentices, and slaves. The death penalty typically fell only on masters with long histories of mistreating their subordinates. In 1667 John Dandy of Maryland killed his servant, Henry Gouge, and removed the boy's clothes before throwing him into a creek to make it appear that he had drowned. Dandy had previously beaten Gouge, and on one occasion inflicted a severe head wound with an axe. Dandy was hanged.

At the same time, it made no economic sense to hang valuable workers in either the North or the South. Whipping, branding, mutilation, and other forms of corporal punishment seemed a sufficient means of striking fear into servants and slaves. The gallows, for both master and servant, was a mechanism of last resort to control persons with homicidal urges.

Nor was criminal misconduct confined to such matters as theft, battery, and murder. A concern with moral behavior infused the colonial criminal codes. Seven

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teenth-century men and women were adventurous and innovative sexual creatures, and cases of adultery, fornication, buggery, bestiality, homosexuality, rape, and incest enlivened the docket of every court, making court attendance a principal spectator sport. Rural life apparently invited extraordinary sexual activity. Consider, for example, Thomas Granger of Plymouth. In 1642 he was indicted for "buggery . . . with a mare, a cowe, two goats, five sheep, 2 calves, and a turkey." 8 Benjamin Goad in 1673 was sentenced to death in Massachusetts for having committed the "unnatural and horrid act of Bestialitie on a mare in a highway or field." 9 The 1660 case of George Spencer of New Haven shows why colonists regarded bestiality with such horror: they feared the birth of humanoid monsters. This same fascination also figured in their anxiety about witches. Spencer had a deformed eye, and part of the evidence brought against him included a grotesque piglet that "had butt one eye in the middle of the face like some blemished eye of a man." 10 Spencer was sentenced to death, and the sow with which he had had his way was killed with a sword within Spencer's sight before the execution.

Adultery and fornication consumed most of the attention of colonial lawmakers, judges, and juries. The upper classes in colonial society considered it a part of their moral responsibility to impose appropriate forms of morality on the lower orders. Such legislation also served as a handy instrument of social control. Pregnancy reduced the efficiency of servant women, and it created a class of bastards that burdened the already meager local resources. In the eighteenth century, the Chesapeake and southern colonies enacted fervently worded statutes against miscegenation based on the concern that a class of mulatto children would confound the social order. The practice of infanticide was the most shocking response to unwanted pregnancy. Mary Martin, a Boston servant, killed her newborn bastard daughter and hid the body in a trunk. She was hanged. As one student of crime in Virginia has concluded, "the more severe injunctions against immorality were directed in support of a stabilized class system."11

New England was no different from the Chesapeake colonies in dealing with sex offenders. The New Englanders relied more extensively on biblical authority as a source of stringent rules against sexual misconduct, but there and elsewhere prosecutions of adulterers and fornicators were both numerous and largely unsuccessful--at least in terms of stemming illicit practices and illegitimate children. Massachusetts, for example, initially made adultery a capital crime, and the colonies of Connecticut and New Haven followed suit. The punishment was too great for the crime, and the crimes were too numerous to be effectively curbed by the punishment. A sense of resignation set in. The authors of the Rhode Island Code, for example, made it clear that they despised the act "whereby men do turn aside from the natural use of their own wives and do burn in their lusts for strange flesh." 12 Like the English, they designated adultery as a minor crime, but with "this momento, that the Most High will judge them." 13

By the mid- eighteenth century the initial quest for sexual purity had flagged. In New England individuals found guilty of fornication and bastardy were treated with considerable leniency, so much so that men were seldom charged and women were given a reprimand and small fine. By the end of the century the dockets of new state courts, which had earlier bulged with prosecutions against sexual crimes, were filled with an increasing number of cases dealing with the protection of property.

Attempts at social control appeared also in the substantive law of personal miscon

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duct. Puritan New England was in no way unique. Drunkenness, cursing, idleness, and Sabbath violations were matters of great concern in the colonies, as they were in England. The somewhat more stratified social hierarchy of the Chesapeake and southern colonies gave such measures class overtones. For example, Virginia legislation in the eighteenth century prohibited ten specific games to persons of the lower classes. Such measures were aimed as well at encouraging a steady work force. There is little evidence, except in the most controlled circumstances between master and servant, that such measures had any impact. If anything, the Chesapeake and southern colonies were somewhat more lenient in their punishment of personal misconduct.

The colonists placed a premium on schemes of punishment that emphasized retribution, humiliation, and shame. Incarceration was a temporary rather than a punitive measure; it was intended to detain rather than rehabilitate. The colonial judiciary sentenced offenders to wear letters, suffer branding, be whipped, and be subjected to the stocks. Punishment was public and full of warning to potential offenders. In the Puritan colonies the practice developed of delivering a sermon either before the execution or at the gallows. The condemned offered a recital of their crime, and ministers wove together biographical details, scripture, and comment to show how small sins had progressed inevitably into enormous crimes. In some instances, convicted persons were made to suffer with the noose around their neck while the sermon was delivered, even though they were ultimately not to be executed. More than one execution seems to have been bungled. Mary Martin, who had killed her bastard daughter, after confessing on the gallows, "through the Unskilfulness of the Executioner, was turned off the Ladder twice, before She Dyed."14

Punishment also reflected the weight of social class. The pillory, which held up the victim's head, was reserved for the well-to-do, while the stocks, which allowed the head to hang down, were used for the common folk. The challenge of colonial criminal law was not to save or change the offender, but to cow him or her into future cooperation and, at the same time, present society with an example of the consequences of wrongdoing.

The Quakers of Pennsylvania broke most fully with this standard. In 1682, they developed a criminal code that prefigured later developments in the late eighteenth and early nineteenth centuries. The code emphasized the use of prisons and fines, and it forbade capital punishment. The Pennsylvania scheme assumed that individuals incarcerated for long terms would have the opportunity to improve themselves. The introduction of increased English control over the colony in the eighteenth century undermined the plan (the death penalty was restored), but it nonetheless set a precedent for the subsequent introduction of the penitentiary. The Pennsylvania reforms demonstrated how colonial Americans could bend their carried legal tradition to achieve rational and humane ends.

The fairness and efficiency of colonial treatment of the socially deviant remains open to debate. Colonial jurisdictions seem to have extended and clarified concepts of fair procedure, a result influenced by English legal reformers. In practice, therefore, the almost two hundred years of experience with criminal justice in America molded the movement to establish bills of rights in state constitutions beginning in 1775 and later in the federal Constitution. The oppressive acts of the English in the years before the Revolution merely confirmed American belief in due process.

The criminal justice system was extremely limited in the resources it commanded

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and perhaps inconsistent and unjust in the use of the legal process. Social control based on appeals to moral authority were an everyday reality. The Salem witchcraft trials that began in 1692, disregarding the social context that explains them, were a brutal demonstration of the potential excesses that lurked in much of early American criminal law. Yet those trials gained such notoriety because they were exceptional. The criminal justice system of the American colonies were in some ways the most lenient in the Western world.

The system also depended on a good deal of informal bargaining to function. Colonial court records reveal many cases in which prosecutions suddenly stopped-- perhaps in part because of restitution made on a private basis to victims. There was apparently great incentive to do so, because once put on trial, a person was likely to be found guilty. High rates of conviction and low rates of acquittal were typical of colonial criminal courts.

Colonial society was self-policing and the rule of law was often subverted by popular rather than legitimate institutional forms. The sheriff, the constable, and the nightwatchman were hardly police officers in the modern sense of the word. The inability of colonial officials to deliver effectively constituted authority to the distant western regions of the colonies often stirred popular justice, including vigilantism. When, for example, the governor of South Carolina in 1767 pardoned five of six criminals convicted for robbery and horse-stealing in that colony's western counties, its residents formed the Regulator movement. The Regulators tried, convicted, and punished offenders in total disregard of the established criminal justice system of South Carolina. Vigilantism became the darker side of an emerging public will theory of American law.

 


Date: 2015-01-29; view: 1036


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