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Cruel and Unusual

YALE UNIVERSITY PRESS

Chapter One

In 1634, THOMAS HARTLEY, from Hungars Parish, Virginia, sent a letter to John Endicott, the former governor of Massachusetts. The letter contained an account of torture by ducking stool: "It is undeniable ye they endeavor to live amiably, keep ye peece in families and communities, and by divers means try to have harmony and good-will amongst themselves and with Strangers who may sojourn among them. For this they use a device which they learned in England, they say, to keep foul tongues that make noise and mischief, silent, and of which I must faine tell you."

The "device," explained Hartley, was especially for punishing women, being designed to deal with a particular area of crime associated with females. One might call it misdemeanor-by-mouth: "They have a Law which reades somewhat in this wise: 'Whereas it be a sinn and a shame for scolding an lying Tongues to be left to run loose as is too often the way amongst women, be it therefore enacted ye any woman who shall, after being warned three severall times by ye Church, persist in excessive scolding, or in backbiting her neighbors, shall be brought before ye Magistrate forexamination, and if ye offence be fairly proved upon her, shee shall be taken by an Officer appointed for ye purpose, to ye nearest pond of deepe streame of water, and there, in ye presence of said Magistrate and of her accusers, be publickly ducked by said officer in ye waters of ye pond or streame until shee shall make a solemn promise ye shee'l never sin in like manner again.'"

The law wasn't just on the books. It was used.

I saw this punishment given to one Betsey, wife of John Tucker, who, by ye violence of her tongue had made his house and ye neighborhood uncomfortable. She was taken to ye pond near where I am sojourning, by ye officer who was joyned by ye Magistrate and ye Minister, Mr. Cotton, who had frequently admonished her, and a large number of People.... At ye end of ye longer arm is fixed a stool upon which sd Betsey was fastened by cords, her gown tied fast around her feete. The Machine was then moved up to the edge of ye pond, ye Rope was slackened by ye officer, and ye woman was allowed to go down under ye water for the space of half a minute. Betsey had a stout stomach, and would not yield until she had allowed herself to be ducked 5 severall times. At length shee cried piteously, "Let mee go! let mee go! by God's help I'll sin no more." Then they drew back ye Machine, untied ye Ropes and let her walk home in her wetted clothes, a hopefully penitent woman.

The colonial American ducking stool could cause physical shock and hurt. If misused, it could kill. In his letter, Hartley reveals both the public's engagement in the spectacle and the woman's terrified expectation of drowning as, again and again, the ducking stool arm forced her to remain under water for half a minute.

Betsey was a loudmouth and nasty. Such types are usually not popular in intimate social contexts, such as a contemporary office building or, in 1634, a small village. The selection of Betsey for several minutes of terror and struggle for air likely had some serious neighborhood, not to mention spousal, animosity behind it. In the American colonies, many punishment practices (most, like this one, imported from Europe to the New World) tended to be public performances, as Hartley's reference to "a large number of people" indicates. Betsey-vulnerable, captive, ridiculous, messy, sodden-makes a ghostly appearance in today's dunking booths, common at rural American fairs. Nowadays, such games are supposed to be all in fun, dumping Boy Scouts and local softball heroes into waters where they choke and struggle and gasp as members of the public try out their aim in a ritual that has no little hint of mock payback.

In colonial times, though, a dunking was a serious legal concern. Governmental representatives oversaw the application of hurt to the local nuisance. A less visible but more significant presence than the magistrate, officer, and crowds in the scene Hartley evokes is what Betsey appeals to as "God." The punishment Betsey fights and succumbs to is a religious ceremony.

As I will argue, American punishment has, with the possible exception of several decades in the twentieth century, been a religious and, more properly, a Christian activity. Religion provides some of the comfort and the pleasure the American public and politicians can derive from punishment. In other words, it is more satisfying to cause pain to another if you know you are right. And the easiest way to know you are right is to understand your actions as God's will. But as this history of American punishment unfolds, it will become clear that the God the punishers call upon commands different punishments at different historical moments.=

In Betsey's case, the God represented by the officer, the magistrate, and the minister has, via ostensibly divine-but locally administered- law, ordered the immersion of a loud woman. Hartley understands the punishment in religious terms. He writes that Betsey "would not yield until she had allowed herself to be ducked 5 several times." Yielding mimics religious conversion. After fighting her punishment for several minutes, the woman gives in to it and calls out, promising to turn to "God" for "help" and to "sin no more." A sharp tongue, which in today's world would be annoying behavior, is for Betsey and the people who witness her punishment an offense against both community and God. Only after they see evidence that Betsey has undergone inspired change do the officials end the punishment.

Hartley's final words-that Betsey, walking home in her "wetted clothes," is "a hopefully penitent woman"-are revealing. "Penitent" is a religious term, meaning one who has done penance. According to the 1551 Council of Trent, which articulated Roman Catholic Church doctrine in response to the challenges of reformers like Martin Luther, "as a means of regaining grace and justice, penance was at all times necessary for those who had defiled their souls with any mortal sin" and was a process "for the reconciling of the faithful who have fallen after Baptism." "Penance" and its associated meanings have been present in American punishment for centuries. One of the synonyms for prison is penitentiary, which derives from the Middle English penitenciarie, an "episcopal prison."

THE SOURCES OF AMERICAN PUNISHMENT

In his recent history of the death penalty in America, Stuart Banner makes a point of discounting myths about execution scenes in the early United States. The philosopher Michel Foucault, one source of those myths, in Discipline and Punish described European execution scenes as something of a free-for-all, replete with pickpockets and raucous, sometimes rebellious crowds. In the new country, at least, writes Banner, such scenes, characterized by gravity and quiet, resembled church services. Prominent ministers of the day presented well-attended gallows sermons and related moral tales about the life and downfall of those about to be executed. Printed broadsides of such texts sold so well that one scholar sees execution literature as the root of American popular culture.

In addition to religiosity, pain, and its accompanying anticipatory terror, characterized these more serious punishments. Early American executions, both the colonial and the postrevolutionary variety, were for the most part accomplished through hanging. The goal of hanging was an efficient and less-than-painful death. In practice, however, those close enough to watch got an eyeful. In a history of the British death penalty, V. A. C. Gatrell describes deaths on the hanging scaffolds, also popular in the American colonies. "What they watched was horrific," writes Gatrell. "People did not die on it neatly. Watched by thousands, they urinated, defecated, screamed, kicked, fainted, and choked as they died." The choking, kicking migration to death often took minutes.

Executions could follow a more painful course if the crime seemed heinous. Under early American laws, women who murdered their husbands and slaves who murdered their masters burned at the stake, a slow and excruciating execution method intended to punish "petit treason." These crimes were a small version of treason, or the act of overthrowing the state, because the law interpreted the home as mirroring governmental power relationships.

Execution methods shared an emphasis on pain, but they had other commonalities as well. Shame was integral to American colonial punishment. Like pain, shame attached to particular bodies via public displays and in some cases through physical marks. The woman in the stocks, the man with his ears nailed to the pillory, the heretic with an H seared into her forehead, the drunkard standing in bilboes (a kind of leg iron) in the hot sun, the woman convicted of sodomy with a half-inch hole carved into the cartilage of her nose (a practice Thomas Jeverson recommended), and the loud woman wearing a gag or a cleft stick-all of these criminals endured great shame. The proximity of shame to pain is evident in this list. The physical marking of faces and forcing of bodies into uncomfortable postures both cause hurt and set the suffering body apart from others, so that onlookers will notice and disapprove.

For the most part, the American colonies inherited their criminal codes from Europe. The predominant influence was Britain, although the legal system of the Netherlands influenced punishments in New York. As the preceding examples have suggested, many laws that the American colonies inherited had their roots in medieval Christian, specifically Roman Catholic, religious practices.

The European rulers of the American colonies used painful physical punishments as a way of maintaining social order from overseas. The king had two bodies: his physical body housed in Europe and the spiritual body, which could inflict severe pain from thousands of miles away.

Corporal punishment thus had a religious component even when the punisher was a monarchical government and not a church. The overseas royalty enjoyed their power through a godly endowment. But the religious aura translated nicely to governments that understood crimes as offenses against God. In a bow to Deuteronomy, the Massachusetts legal code of 1648 prescribed execution for children older than sixteen who "shall curse or smite their natural mother or father." The Massachusetts God was a jealous one. The prevailing Calvinist sensibility in that colony selected Quaker "heretics" for special treatment. The Massachusetts Colonial Records of 1657 list the punishment for Quakers who return to towns that had banished them: "A Quaker if male for the first offense shall have one of his eares cutt off; for the second offense have his other eare cutt off; a woman shalbe severly whipt; for the third offense they, he or she, shall have their tongues bored through with a hot iron."

The nexus of punishment and religious belief is obvious in some colonial laws, such as those that insisted upon church attendance or rebuked blasphemy. But it is also present, for example, in laws regulating sexual activity. More expansive than our contemporary definition of sodomy as anal sex between two men, sodomy laws of the day included, for example, sex with animals.

Sodomy laws began as church laws. In the sixteenth century, however, the English royal court usurped the right to punish sodomy crimes. The transfer of punitive power coincided with the decision of Henry VIII to leave the Catholic Church, which had refused to annul the king's marriage to Catherine of Aragón. Under Henry VIII, church and royal law were no longer in tension. The king was aligned with God, and the king's wishes dressed in divine clothing. Sodomy laws, like other felonies, provided an opportunity for the king to wrest moral power from the church.

One of the sodomy laws of Henry VIII is important in American history because versions of it, derived from medieval church law, traveled into colonial jurisprudence. In 1533, the Act of 25 Henry VIII, chapter 6, determined that the "detestable and abominable vice of Buggery [sodomy] committed with mankind or beast" was a felony punishable by death. Both Plymouth Colony and the Massachusetts Bay Colony maintained laws punishing sodomy with death, a law that continued when the two became a single colony.

Other colonies adopted the death penalty for sodomy. Some imitated the 1533 law. For instance, Rhode Island's first attempt to regulate sodomy was explicit about its lineage: "First of sodomy, which is forbidden by this present assembly throughout the whole colony, and by sundry statutes of England. 25 Henry 8, 6; 5 Eliz. 17. It is a vile affection.... The penalty concluded by that state whose authority we are is felony of death without remedy. See 5 Eliz. 17." In this way, the colonies inherited the tradition of eliding civil and religious power and transferred the practice to colonial governance.

PUNISHMENT, COLONIAL STYLE

Between 1608, the date of the first execution in the colonies, and 1785, when Joseph Ross, one of the last executed for the crime of sodomy, was hanged in Pennsylvania, just over fifty people were executed in the American colonies for sex crimes including "sodomy," "bestiality," "buggery," rape, attempted rape, and adultery. The heyday for sex-crime executions occurred during the first few decades of punishment in the American colonies. In the thirty-six years that followed the first execution in the new colonies, a full third of the twenty-four executed died for sex crimes. These included five sodomites and two adulterers. One was a convicted rapist.

Although the southern and northern colonies alike followed the English law, "the New Englanders' reliance on the Old Testament caused them definitional difficulties," writes Mary Beth Norton. Sodomy law in those colonies had a definition that was both expansive and unstable.

"Sodomy" was a flexible term. Under one set of legal codes, that of the Reverend John Cotton of Plymouth Plantation, the "unnatural filthiness" of sodomy that was to earn the punishment of death included "fellowship of man with man" and "of woman with woman" as well as "buggery, which is carnal fellowship of man or woman with beasts or fowles." A succeeding version of the law in the Massachusetts Bay Colony eliminated the prohibition against what we now call lesbian sex, and a later version also saved young boys and those who suffered homosexual rape from the death penalty. These last two groups, which our current society would consider victims rather than perpetrators, still suffered punishments but not execution.

New Haven provides an example of how broad lawmaking in the colonies could get. The New Haven legal code of 1656 adopted the provisions against sodomy and bestiality that appeared in the Laws and Liberties of the Massachusetts Bay Colony, "but New Haven did not stop there," writes Norton. The New Haven legal code also considered sex between women, sex with immature girls, and masturbation in front of others to be potential capital crimes.

In practice, sloppy application aroused public antagonism. Although capital convictions for sodomy generally required two witnesses, local governments did not always follow such rules. For instance, George Spencer came to the attention of authorities because "it was thought that a recently born deformed piglet resembled him."

Death for sex crimes may have seemed unduly harsh to some colonists. "As was true in adultery cases, some colonists expressed their dissatisfaction with the application of the death penalty to those found guilty of sodomy and bestiality," writes Norton. As earnestly as the New Englanders appear to have believed in the importance of regulating sexual behaviors, vocal disagreement may have slowed down the rate of capital convictions. Moreover, some sex crimes received more frequent punishment than others, and sex regulation via execution happened relatively early in the life of most colonies. The colonies held only two executions for adultery. Both of these occurred in the Massachusetts Bay Colony in 1643. Likewise, the most concentrated executions for sodomy and bestiality occurred before 1644.

DEVILISH CRIME WAVE

After the first surge of hangings for sex, such punishments lost popularity as the colonies turned to executions for piracy or witchcraft. The colony with the reputation for witchcraft executions is Puritan Massachusetts. It is important to note, however, that possessions and witch trials occurred in other colonies and countries and in the decades before 1692, the year of the Salem witchcraft trials. "Colonial courts tried more than eighty such cases from 1647 to 1691, resulting in twenty executions and many more fines, banishments, and whippings," writes historian Kenneth Silverman. "Dozens of other episodes circulated by conversation and gossip."

(Continues...)

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Excerpted from Cruel and Unusual by ANNE-MARIE CUSAC Copyright © 2009 by Anne-Marie Cusac. Excerpted by permission.
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