While other facial branding had been used in Britain in the seventeenth century, clergy branding in the most visible part of the cheek nearest the nose only appeared from 1699 to 1706, before it returned to the thumb until abolition in 1779.Footnote 110 The introduction formed part of a general harshening of property laws in the 1690s, but local authorities were hesitant.Footnote 111 In repealing the sentence, Parliament noted that rather than acting as a deterrent or corrective, such offenders, being rendered thereby unfit to be entrusted in any honest and lawful way, become the more desperate, and in the minds of rehabilitative penal reformers like William Eden the use of stigmatising marks impeded reintegration of a reformed individual into society.Footnote 112 Later American critics of judicial mutilations similarly emphasised that such practices were antithetical to civil societies, and that they fixed the individual as a permanent member of a criminal class unable to start afresh in another colony.Footnote 113 Branding on the cheek for offences like counterfeiting coins did, however, remain on the books.Footnote 114 Other facial marks were also inflicted: in London, 1731, Japhet Crook, alias Sir Peter Stranger, had his ears cut, and nostrils slit by the public hangman under an Elizabethan forgery statue. 60 Witte, John, The Western Case of Monogamy over Polygamy (New York, 2015), 400CrossRefGoogle Scholar. To do so in the face, or inflict other permanent injury on the only part of the body almost universally uncovered, was acknowledged as a weighted action. In the bill he cites Fleta, Britton (which prescribed loss of the equivalent member for men, but loss of the offending hand for women) and the law of King Alfred (Ll. To understand Jefferson's proposals it is necessary to examine the fate of equivalent crimes and punishments in the law codes he examined, especially Britain's, and to compare the legal and wider connotations of facial disfigurement that made these proposals coherent in Virginia when they had long ceased elsewhere. Facial marking would continue to be used in British colonies against subordinated bodies: from the branding and judicial disfiguring of enslaved individuals in the West Indies, to the use of forehead tattoos known as godna detailing criminal status in Indian penal law.Footnote 115 Yet, even if corporal punishments such as floggings remained in use in Britain and its colonial regions, forms of legitimate violence designed to ensure lasting stigmatisation were employed by the independent American authorities against their own citizens much later.Footnote 116, Jefferson observed that some of Bill 64's punishments had precedent in the treatment of slaves. 114 Blackstone, Commentaries, IV, 99. Gwenda Morgan and Peter Rushton, Banishment in the Early Atlantic World: Convicts, Rebels and Slaves (2013); Lukasik, Discerning Characters, ch. While obviously a reduction from the death penalty, Jefferson's suggestion that an assailant should be disfigured in like manner was extraordinary. Town, etc., servants and slaves, and most of his personal estate, opinion that mills for flatting and slitting iron should be erected in that Province, [PDF] 1. Davies, Richard (Cambridge, 1995), ch. In his notes on the crime for Bill 64, Jefferson instead cites thelstan's and Cnut's sentence of loss of hand, and common law provisions for it as a capital offence. 2, ed.
A final clue appears in Jefferson's legal commonplace book. The prosecution successfully countered that such logic would exclude femes covert from protection, which would be monstrous: William Brockenbrough and Hugh Holmes, A Collection of Cases Decided by the General Court of Virginia [17891814] (Philadelphia, 1815), 1846. Prior to American independence, the common law of England was imported into the colonial courts, its decisions widely available in printed proceedings, and the Privy Council remained the highest appellate court. The Crowd and Public Punishments in London, 17001820, in Penal Practice and Culture, 15001900, ed. Bilder, Marcus and Kent, ch. 133 Jefferson to Pendleton, 26 August 1776. Published online by Cambridge University Press:
Tracy, Larissa and DeVries, Kelly (Leiden, 2015), 81101CrossRefGoogle ScholarPubMed. 8. 141 Jefferson, in Works of Thomas Jefferson, ed. A Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital, 18 June 1779, Founders Online, National Archives (USA), last modified 13 June 2018, http://founders.archives.gov/documents/Jefferson/01-02-02-0132-0004-0064 (original source: The Papers of Thomas Jefferson, vol. 127 Blackstone, Commentaries, IV, 137 (5 Eliz. Jefferson cites 25 Henry 8. c. 6.
Render date: 2022-07-22T07:16:22.815Z 44 Lukasik, Christopher J., Discerning Characters: The Culture of Appearance in Early America (Philadelphia, 2011), 122CrossRefGoogle Scholar. In general, the reticence which met application of the Act and its capital punishment are commensurate with Jefferson's rescinding of the death penalty. 100223) who introduced nasal mutilation along with loss of the ears for women convicted of adultery.Footnote 137 Jefferson does not refer to Cnut here, but does elsewhere. 1171 . The Rise of Cotton Mills in the South. 8 James Madison to Jefferson, 15 February 1787. Slavery Jotirao Phule (author), P G Patil (translator). 123 Hening, Statutes at Large, I, 2545, 440, 51718. 9 Jefferson to Pendleton, 26 August 1776. for this article. Dea H. Boster, African American Slavery and Disability: Bodies, Property, and Power in the Antebellum South, 18001860 (2013). Anchitell Grey (1769), 33353. He appears to be speaking only of male castration since he goes on to express concern that women will use a false rape charge as an instrument of vengeance against an inconstant lover.Footnote 61 The Virginian legislature had severely restricted punitive castration, and in the nineteenth century it was limited to enslaved men convicted of raping a white woman; other jurisdictions like New Jersey and Pennsylvania extended this punishment to Native American and white men, respectively, even if there is no evidence for the latter that the sentence was ever carried out.Footnote 62, Virginia, leading the five southern colonies, had adopted the Tudor definition and capital punishment for sodomy without enacting its own statutes on the matter.Footnote 63 Subsequent English cases had established high levels of proof of penetration, the irrelevance of consent, etc., and it remained a rare prosecution; John M. Murrin cites only one confirmed sodomy trial in colonial Virginia.Footnote 64 It seems unlikely that women would actually be considered legally capable of sodomy in practice (or similarly, rape), but Jefferson does include this possibility both through the specific punishment, and through including a supporting gloss from Finch that sodomy denoted carnal copulation against nature, to wit, of man or woman in the same sex.Footnote 65, My search of the limited evidence we have for court decisions in Virginia has failed to unearth any cases offering significant revision of, or prosecution under, laws against inflicting disfiguring injuries.Footnote 66 Prior to the Revolution, English statutory and common law was therefore the most relevant corpus available. 57 Jefferson, in Works of Thomas Jefferson, ed. The rise of a progressive penology from the late eighteenth century, emphasising reform rather than retribution, and especially the turn toward imprisonment, would significantly decrease or remove corporal and capital punishments from most European and American jurisdictions. In the Report of the Revisors, the term was altered from cutting to boring. 3. 10 Gul. Europe and especially Britain continued to be the benchmark against which American elites measured civility and rule of law, and this inferiority anxiety was a major driver of legal reforms.Footnote 37 While all states addressed the status of laws inherited from England, some were content to distinguish American legal identity by retaining common law unless repugnant to the constitution.Footnote 38 One of the ways in which Jefferson negotiated a break between English and American was to return to the world of the pre-Norman-conquest Anglo-Saxon, positioning America as the inheritor of this tradition, and encouraging study of the laws, language and culture. 42 Flaherty, David H. (introduction and ed. Until 1623 women could not claim benefit of clergy, and thereafter only for petty thefts; in 1691, clergy was extended to them as freely as men.Footnote 108 Many individuals transported to Virginia would have carried such marks, such as Sarah Plint, indicted for theft on 16 January 1766 and transported for seven years after previously being branded for marrying five husbands.Footnote 109. Jefferson demonstrates a volte-face around the efficacy of shaming for criminal reform. 2 and passim. Ford, II, 401, including Beccaria. Online purchasing will be unavailable on Sunday 24th July between 8:00 and 13:30 BST due to essential maintenance work. 49 Lukasik, Discerning Characters, 11; Miller, Charles A., Jefferson and Nature: An Interpretation (Baltimore, 1988), ch. 146 Peterson, Thomas Jefferson, 1278; Jefferson to Pendleton, 26 August 1776. lfr. 18 Ayers, Edward L., Vengeance and Justice: Crime and Punishment in the 19th-Century American South (New York, 1984), 21Google Scholar; Greenberg, Kenneth S., The Nose, the Lie, and the Duel in the Antebellum South, American Historical Review, 95 (1990), 5774CrossRefGoogle Scholar; Gorn, Elliott J., Gouge and Bite, Pull Hair and Scratch: The Social Significance of Fighting in the Southern Backcountry, American Historical Review, 90 (1985), 1843CrossRefGoogle ScholarPubMed. Compiled by William Strachey (Charlottesville, 1969), xxGoogle Scholar. L., Jeffrey Pasley, Andrew W. Robertson and David Waldstreicher (Chapel Hill, 2004), 79103Google Scholar; Wilson, G. 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10 McLynn, Frank, Crime and Punishment in Eighteenth-Century England, 1989 (Oxford, 1991), 253Google Scholar; Leon Radzinowicz, A History of English Criminal Law and Its Administration from 1750 (5 vols., 1948), I, 36970. British History Online, www.british-history.ac.uk/greys-debates/vol1/pp333-353 (accessed 13 September 2018). 37 Yokota, Kariann Akemi, Unbecoming British: How Revolutionary America Became a Postcolonial Nation, 2011 (New York, 2014)Google Scholar; Pearson, Ellen Holmes, Revising Custom, Embracing Choice: Early American Legal Scholars and the Republicanization of the Common Law, in Empire and Nation: The American Revolution in the Atlantic World, ed. VIII. These punishments were intended to replace the death penalty for these crimes, and as such formed part of Jefferson's attempt to rationalise the Virginian law code in line with eighteenth-century reform principles. 131 Fantina, Robert, Desertion and the American Soldier, 17762006 (New York, 2006), 50Google Scholar; Winchester, Simon, The Surgeon of Crowthorne: A Tale of Murder, Madness, and the Oxford English Dictionary, 1998 (1999), 547Google Scholar. 22 Valsania, Jefferson's Body, 1238; Epperson, Terrence W., Panoptic Plantations: The Garden Sights of Thomas Jefferson and George Mason, in Lines That Divide: Historical Archaeologies of Race, Class, and Gender, ed. C2v, D1vD2r; Konig, David Thomas, Dale's Laws and the Non-Common Law Origins of Criminal Justice in Virginia, American Journal of Legal History, 26 (1982), 35475CrossRefGoogle Scholar, at 370. 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It did not preclude benefit of clergy, as the legislature did in the same period for offences like buggery, with man or beast, horse stealing and rape.Footnote 93 It was not until 1796 that the Commonwealth abolished benefit of clergy and restricted the death penalty to first-degree murder, facilitated in part by the construction of a new jail (opening in 1800).Footnote 94 Inefficiencies in prosecution may have encouraged the reduction of capital offences.Footnote 95 Some corporal punishments remained: misbehaviour within the jail could prompt extendable solitary confinement on bread and water and/or moderate whipping/s.Footnote 96, The 1796 provision for disfigurement offered two forms for the offence: in the first, it reintroduced the requirement for lying in wait alongside acting on purpose and of malice aforethought; on the other hand, it removed these requirements for any who shall voluntarily, maliciously and of purpose, pull or put out an eye while fighting or otherwise, giving theoretically greater protection against the local eye-gouging brawls, rather than the traditionally symbolic nose. 88 Handler, Phil, The Law of Felonious Assault in England, 180361, Journal of Legal History, 28 (2007), 183206CrossRefGoogle Scholar. Into the nineteenth century, slaves faced capital charges for disfiguring white people in cases where white perpetrators would face only fines, pillory or imprisonment.Footnote 124 As Kirsten Fisher notes, the continuation of such practices in the face of increased restraint against white bodies was one way in which racial difference was ingrained.Footnote 125, But despite a significant imbalance in the acceptance, range and frequency of such punishments, corporal punishment including disfigurement was also used on free individuals well into the nineteenth century. Jefferson's provisions to both prevent and enforce forms of disfigurement attest to the importance of appearance. 58 Snyder, Terri L., What Historians Talk about When They Talk about Suicide: The View from Early Modern British North America, History Compass, 5 (2007), 65874CrossRefGoogle Scholar, at 663, 668. Parl. 145 Gatrell, Vic, The Hanging Tree: Execution and the English People 17701868 (Oxford, 1994), 263Google Scholar. A number of men linked to the case criticised the execution (on unknown grounds), two of whom were punished by the loss of an ear and either one year of indentured servitude or whipping.Footnote 128 North Carolina included ear-cropping among its penalties for perjury: those guilty were fined, ineligible to give further testimony in any court, and pilloried for an hour before their ears were cut off and nailed to the pillory until sunset.Footnote 129 New England was the most enthusiastic in its use of branding and other marks, but even Pennsylvania which Virginia would shortly look to after the success of its new penitentiary only removed remaining branding, ear cropping, etc., in 1786.Footnote 130 The army employed branding well into the nineteenth century after it had left other (white) judicial punishments, especially for desertion. 3 Valsania, Maurizio, Jefferson's Body: A Corporeal Biography (Charlottesville, 2017)Google Scholar. 84 T. B. Howell, A Complete Collection of State Trials (21 vols., 1816), XI, 135372. 2 Markus D. Dubber, An Extraordinarily Beautiful Document: Jefferson's Bill for Proportioning Crimes and Punishments and the Challenge of Republican Punishment, in Modern Histories of Crime and Punishment, ed. Please accept our apologies for any inconvenience caused.
17 Meranze, Michael, Laboratories of Virtue: Punishment, Revolution, and Authority in Philadelphia, 17601835 (Chapel Hill, 1996), 188Google Scholar. Julian P. Boyd (Princeton, 1950), 492507); hereafter Bill 64 Online. R. T. Barton (Boston, MA, 1909); Hening, William W. and Munford, William, Reports of Cases Argued and Determined in the Supreme Court of Appeals of Virginia (4 vols., Philadelphia, 180111)Google Scholar; Washington, Bushrod, Reports of Cases Argued and Determined in the Court of Appeals of Virginia (2 vols., Richmond, 17989)Google Scholar. When Beccaria's appeal against capital punishment gained traction among reformers, those still in favour of the punishment were compelled to defend it with unprecedented vigour: Vic Gatrell notes that elaborate pleading was newly necessary, because older certainties had become uneasy.Footnote 145 Jefferson's exhausting annotations of the corporal punishments hint at similar strain to justify punishments that might seem revolting. 20 E.g.
There is also vital and growing scholarship on the disabling of enslaved communities.Footnote 20 As Tristan Stubbs notes, Enlightenment patriarchs like Jefferson in many cases displaced blame for violence onto figures such as overseers, while their own force was subsumed into gentler rhetoric.Footnote 21 Jefferson's strategic use of supervision at Monticello also introduced what scholars have recognised as principles of the panopticon to his plantation.Footnote 22. 76 Hening, William Waller, The Statutes at Large; Being a Collection of all the Laws of Virginia, from the First Session of the Legislature, in the Year 1619 (13 vols., Philadelphia, 180923), VI, 250Google Scholar. They were found guilty, as was Thomas Hand for wounding Joseph Holloway in the arm with a pistol in 1770.Footnote 85 In contrast, Samuel Dale failed to have Thomas Brooks's assault on him upgraded to a felony after he lost the sight in his eye, because unable to prove that Brooks had lain in wait with intent.Footnote 86, The actions required to satisfy lying in wait in Britain were substantially expanded by a ruling from Justice Sir James Eyre in the trial of Thomas Mills in April 1783, which held it sufficient for a man who has a purpose in his mind to do such kind of mischief, and deliberately watches an opportunity to do it.Footnote 87 It would have little effect, however, as the 1803 revision of the legislation removed the requirement entirely: it remained an unclergyable felony in Lord Ellenborough's Act (43 Geo. : Reading Men's Head and Face Wounds in Early Medieval Europe to 1000 CE, Wounds and Wound Repair in Medieval Culture, Zones of Law, Zones of Violence: The Legal Geography of the British Atlantic, circa 1772, Defining and Defiling the Criminal Body at the Cape of Good Hope: Punishing the Crime of Suicide under Dutch East India Company Rule, circa 16521795, Discipline and the Other Body: Correction, Corporeality, Colonialism, Law and Colonial Cultures: Legal Regimes in World History, 14001900, Laboratories of Virtue: Punishment, Revolution, and Authority in Philadelphia, 17601835, Vengeance and Justice: Crime and Punishment in the 19th-Century American South, The Nose, the Lie, and the Duel in the Antebellum South, Gouge and Bite, Pull Hair and Scratch: The Social Significance of Fighting in the Southern Backcountry, American Sphinx: The Character of Thomas Jefferson, Masters of Violence: The Plantation Overseers of Eighteenth-Century Virginia, South Carolina, and Georgia, Panoptic Plantations: The Garden Sights of Thomas Jefferson and George Mason, Lines That Divide: Historical Archaeologies of Race, Class, and Gender, The Rise of the Penitentiary: Prisons and Punishment in Early America, Virginia Law Books: Essays and Bibliographies, Unbecoming British: How Revolutionary America Became a Postcolonial Nation, Revising Custom, Embracing Choice: Early American Legal Scholars and the Republicanization of the Common Law, Empire and Nation: The American Revolution in the Atlantic World, The Transatlantic Constitution: Colonial Legal Culture and the Empire, The Idea of Anglo-Saxon England 10661901: Remembering, Forgetting, Deciphering and Renewing the Past, The Study of Old English in America (17761850): National Uses of the Saxon Past, Journal of English and Germanic Philology, Dale's Laws and the Non-Common Law Origins of Criminal Justice in Virginia, Why Thomas Jefferson and African Americans Wore Their Politics on Their Sleeves: Dress and Mobilization between American Revolutions, Beyond the Founders: New Approaches to the Political History of the Early American Republic, Jefferson on Display: Attire, Etiquette, and the Art of Presentation, Discerning Characters: The Culture of Appearance in Early America, Suspect Identities: A History of Fingerprinting and Criminal Identification, Foul Bodies: Cleanliness in Early America, Citizen Sailors: Becoming American in the Age of Revolution, The Passport in America: The History of a Document, Documenting Individual Identity: The Development of State Practices in the Modern World, Declaring Independence: Jefferson, Natural Language & the Culture of Performance, Pennsylvania History: A Journal of Mid-Atlantic Studies, Animalia Americana: Animal Representations and Biopolitical Subjectivity, Creatures of Empire: How Domestic Animals Transformed Early America, Proceedings of the American Philosophical Society, What Historians Talk about When They Talk about Suicide: The View from Early Modern British North America, The Western Case of Monogamy over Polygamy, Rape and Race in the Nineteenth-Century South, Homosexuals and the Death Penalty in Colonial America, Reports of Cases Argued and Determined in the Supreme Court of Appeals of Virginia, Reports of Cases Argued and Determined in the Court of Appeals of Virginia, Living with Disfigurement in Early Medieval Europe, Fleta seu Commentarius Juris Anglicani sic nuncupatus, The Statutes at Large; 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