Empire of Liberty: A History of the Early Republic, 1789-1815 (84 page)

Everywhere in the eighteenth-century colonies criminals had their heads and hands pilloried and were exposed for hours on end to insults and pelting by onlookers. The stocks were even moved about, often to the particular neighborhoods of the criminals in order to make them feel mortification for their crimes and to teach lessons to the observers. In every punishment
the authorities were determined to expose the offender to public scorn, and with the lowliest of criminals, to do so permanently through mutilation. Persons with a brand on their foreheads or their ears cropped were forever condemned to the contempt of the intimate worlds in which they lived and object lessons to everyone of the consequences of crime.

Since few colonists had believed that the criminals were capable of being reformed or rehabilitated, capital punishment had been common not only for murder but for robbery, forgery, housebreaking, and counterfeiting as well. Prior to the Revolution, Pennsylvania had twenty capital crimes; Virginia had twenty-seven. Executions of the condemned criminals were conducted in public, and they drew thousands of spectators.

The republican Revolution challenged these traditional notions of punishment. Many of the Revolutionary state constitutions of 1776 evoked the enlightened thinking of the Italian reformer Cesare Beccaria and promised to end punishments that were “cruel and unusual” and to make them “less sanguinary, and in general more proportionate to the crimes.”
⁵⁸
Jefferson and other leaders drew up plans for liberalizing the harsh and bloody penal codes of the colonial period. In fact, Jefferson devoted more time to his Virginia bill for proportioning crimes and punishments than to any of the other reform bills he drafted during the Revolution.

A new republican order was emerging, and with it hopes of milder and more compassionate forms of punishment. Students at Yale and Princeton began debating the effectiveness of executing criminals. Did not such punishments do more harm than good? Maybe it was sensible for Britain to have nearly two hundred crimes punishable by death, for monarchies were based on fear and had to rely on harsh punishments. But, said many enlightened Americans, republics were different. They believed in equality and were capable of producing a kinder and gentler people. Americans must not forget, said Benjamin Rush, that even criminals “possess souls and bodies composed of the same materials as those of our friends and relatives.”
⁵⁹

Everywhere enlightened Americans expressed doubts about the effectiveness of the old methods of criminal punishment. A sudden increase in crime in the 1780s suggested to many that bodily mutilations and executions did not deter crime after all. Sheriffs began refusing to cut off the limbs of criminals and to draw and quarter the bodies of those hanged, while others began rethinking the sources of criminal behavior. People, it seemed, were not born to be criminals; they were taught to be criminals by the world around them.

If the characters of people were produced by their environments, as Lockean liberal thinking suggested, perhaps criminals were not entirely responsible for their actions. Maybe impious and cruel parents of the criminal were at fault, or maybe even the whole society was to blame. “We all must plead guilty before the bar of conscience as having had some share in corrupting the morals of the community, and levelling the highway to the gallows,” declared a New Hampshire minister in 1796.
⁶⁰
If criminal behavior was learned, then perhaps it could be unlearned. “Let every criminal, then, be considered as a person laboring under an infectious disorder,” said one reformer in 1790. “Mental disease is the cause of all crimes.”
⁶¹
If so, then it seemed that criminals could be salvaged, and not simply mutilated or destroyed. “A multitude of sanguinary laws is both impolitic and unjust,” declared the 1784 New Hampshire Bill of Rights, “the true design of all punishments being to reform, not to exterminate mankind.”
⁶²

These enlightened sentiments spread everywhere and eroded support for capital punishment in the new republican states. Not that the reformers had become soft on crime. Although Jefferson’s code called for restricting the death penalty to treason and murder, he did propose the
lex talionis
, the law of retaliation, for the punishment of other crimes. So the state would poison the criminal who poisoned his victim and would castrate men guilty of rape, polygamy, or sodomy.
⁶³
In Massachusetts in 1785 a counterfeiter was no longer executed. Instead, he was set in the pillory, taken to the gallows, where he stood with a rope around his neck for a time, whipped twenty stripes, had his left arm cut off, and finally was sentenced to three years’ hard labor.

Although most states did something to change their code of punishment, Pennsylvania led the way in the 1780s and 1790s in the enlightened effort, as its legislation put it, “to reclaim rather than destroy,” “to correct and reform the offenders” rather than simply to mutilate or execute them. Pennsylvania abolished all bodily punishments such as “burning in the hand” and “cutting off the ears” and ended the death penalty for all crimes except murder. Instead, the state proposed a scale of punishments based on fines and years of imprisonment.

With the reliance on imprisonment the Pennsylvanian reformers went beyond the Beccarian proposals for reform and challenged even the
punishing of criminals in public. Since people learned from what they saw, the cruel and barbaric punishments of monarchy carried out in public, said Thomas Paine, hardened the hearts of its subjects and made them bloodthirsty. “It is their sanguinary punishments which corrupt mankind.” If people witness the miseries of the criminal being punished “without emotion or sympathy,” said Rush, then “the principle of sympathy” itself “will cease to act altogether; and . . . will soon lose its place in the human heart.”
⁶⁴

In the larger and less intimate worlds of the growing cities, communal punishments based on shaming the criminal and frightening the spectators seemed less meaningful, especially since the spectators, more often than not, reveled in witnessing the punishments. Instead of having their bodies publicly flogged or mutilated, the criminals, the reformers concluded, should be made to feel their personal guilt by being confined in prisons apart from the excited environment of the outside world, in solitude where the “calm contemplation of mind which brings on penitence” could take place. These new enlightened punishments, declared Edward Shippen in 1785, would bring “honor” to “our rising Empire, to set an Example of Lenity, moderation and Wisdom to the Older Countries of the World.”
⁶⁵

Out of these efforts was created the penitentiary, which turned the prison into what Philadelphia officials called “a school of reformation.” By 1805 New York, New Jersey, Connecticut, Virginia, and Massachusetts had followed Pennsylvania in constructing penitentiaries based on the principle of solitary confinement. Some criticized the practice on the grounds that it rendered the rehabilitated prisoners unfit for becoming useful members of society; these critics accepted the concept of penitentiaries but wanted the prisoners to participate in hard labor (and earn money) as well as having temporary periods of confinement in total solitude.

By the second decade of the nineteenth century, however, more and more Americans were having second thoughts about the penal reform
that a decade earlier had seemed so promising. In Massachusetts the state prison was soon overwhelmed by overcrowding, escapes, violence, and expenses far in excess of earnings. In 1813 the prisoners burned their workshops, and in 1816 they engaged in a full-scale revolt that resulted in one death. At the same time, the released inmates’ high rate of recidivism began to cast doubt on the rehabilitative capacity of the penitentiary. By 1820 the penitentiary as a form of criminal punishment survived the criticism and doubts, but all sorts of proposals for restructuring and improving it were flying about.
⁶⁶

Yet at the outset liberals on both sides of the Atlantic enthusiastically celebrated what they took to be new humane forms of punishment. The penitentiary was of “pure American origin,” noted a sympathetic British traveler in 1806, “and is happily adapted to the genius of the government of the country, mild, just, and merciful.” The object was “to receive the vicious, and if possible, reclaim them to virtue; and is an admirable contrast to the sanguinary punishments of old governments, who, for even pecuniary offences, send them to the other world to be reclaimed there.”
⁶⁷
Nowhere else in the Western world, as enlightened philosophes recognized, were such penal reforms carried as far as they were in America.

S
CHOOLS, BENEVOLENT ASSOCIATIONS
, Masonic organizations, missionary societies, penitentiaries—all these were important for creating a civic society and making people more compassionate and republican. But none of them could compare in significance with that most basic social institution, the family. It was the family, John Adams had said in 1778, that was the “foundation of national morality.”
⁶⁸
Throughout the eighteenth century the family had been the primary place for teaching the young, carrying on work, disciplining the wayward, and caring for the poor and the insane. Yet the Revolution challenged all these familial relationships, not only unsettling connections between fathers and children and husbands and wives but also cutting some of the family’s ties to the larger society and making it more private and insular. The family was becoming a much more republican institution.

Although the relationship between husbands and wives continued to be governed by the laws of coverture that gave husbands full control of their wives and their wives’ property, wives were gaining a new sense of
themselves as independent persons. Lucy Knox, the wife of General Henry Knox, told her husband in the midst of the Revolutionary War that everything was changing. When he returned from the war, he could no longer be the sole commander-in-chief of his household. Be prepared to accept, she warned, “that there is such a thing as equal command.”
⁶⁹

With this remark Lucy Knox was not fundamentally challenging either her domestic situation or the role of women in her society any more than Abigail Adams was in her famous “Remember the Ladies” letter of 1776 in which she told her husband John that “all Men would be tyrants if they could” and predicted “a Rebellion” if the ladies’ needs were not attended to. Both women were only playfully teasing their husbands. Yet teasing can often make a serious point, and in their bantering remarks both wives were undoubtedly expressing a self-conscious awareness of the legally dependent and inferior position of women that was capable of being changed.
⁷⁰

Such remarks certainly suggest that what earlier had been taken for granted was now beginning to be questioned, especially by a new generation of women. Catharine Sedgwick, who would go on to become a celebrated writer of domestic novels, recalled the marriage of her older sister in 1796 as “the first tragedy of my life.” When she at age seven realized that her sister was now to be taken away and be governed by the will of her husband, she was crushed. In trying to console her, her sister’s new husband told her that he “may” allow her sister to visit with her. Sedgwick never forgot that moment. “
May
! How my whole being revolted at the word—He had the power to bind or loose my sister.”
⁷¹

Although there was little change in the legal authority of men over their wives, people’s consciousness was changing. Charles Willson Peale self-consciously painted his many family portraits with the husbands and wives on the same plane—an innovation that other artists adopted as well.
⁷²
Women began to question the idea that marriage was their destiny and to defend the independence of spinsterhood (reinforced, at least in New England, by the fact that women considerably outnumbered men in the older communities). Some objected to the word “obey” in the marriage vows because it turned the woman into her husband’s “slave.”
“Marriage,” it was said, “ought never to be considered as a contract between a superior and an inferior, but a reciprocal union of interests, an implied partnership of interests.”
⁷³
The extraordinary proliferation of references in the 1790s to the marital bliss of Adam and Eve that Milton had portrayed in Book IV of
Paradise Lost
suggests that describing an ideal marriage was on many people’s minds.
⁷⁴
Indeed, popular writings everywhere set forth models of a perfect republican marriage—a companionate marriage. It was one based on love, not property. It was one based on reason and mutual respect. And it was one in which wives had a major role in inculcating virtue in their husbands and children.
⁷⁵

Under this kind of cultural pressure, even the laws began to change. The new republican states abolished the crime of petit treason, which had provided for harsher punishments for wives or servants who murdered their husbands or masters on the grounds that such murders were akin to subjects murdering their king. Women gained some greater autonomy and some legal recognition of their rights to divorce and to make contracts and do business in the absence of their husbands. Divorce, said Thomas Jefferson, would restore “to women their natural right of equality.” In the colonial period only New Englanders had recognized the absolute right to divorce, but after the Revolution all the states except South Carolina developed new liberal laws on divorce, and in some states the rate of divorce increased sharply in the first decade of the nineteenth century. The new ideals of marriage made husbands more publicly responsible for their behavior, and the increase in the number of “runaway wife advertisements” in newspapers suggested that women were asserting themselves in new ways. Women were becoming more independently involved in the courts and legal affairs than they had been prior to the Revolution.
⁷⁶