LF: THOMAS JEFFERSON’S VIEWS ON CRIME AND PUNISHMENT

The whipping post was a common punishment for lawbreakers.

In 1778, Thomas Jefferson began working with a committee to reform the criminal code in the Commonwealth of Virginia. What the committee proposed may come as a surprise to modern observers. Below are some of the notable excerpts of the proposal, known as the “Bill Proportioning Crimes and Punishments”, or Bill 64.

* * * * *

EYE FOR AN EYE

Adopting a lex talionis approach to justice — better known as “eye-for- an-eye” punishment — committee the proposed poisoning as a punishment for people convicted of poisoning:

Whosoever committeth murder by poisoning shall suffer death by poison. [1]

Similarly, the proposed punishment for disfigurement was disfigurement:

Whosoever on purpose and of malice forethought shall maim another, or shall disfigure him, by cutting out or disabling the tongue, slitting or cutting off a nose, lip or ear, branding, or otherwise, shall be maimed or disfigured in like sort: or if that cannot be for want of the same part, then as nearly as may be in some other part of at least equal value and estimation in the opinion of a jury and moreover shall forfiet one half of his lands and goods to the sufferer. [1]

SEX CRIMES

Castration and mutilation was proposed as the penalty for certain prohibited sex acts, such as having multiple spouses or committing the act of sodomy.

Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting thro’ the cartilage of her nose a hole of one half inch diameter at the least. [1]

It is relevant to note that sodomy is broadly defined as any sex act that does not involve one penis and one vagina. Any other sexual activity — regardless of consent — was prohibited. This might have condemned even straight, married couples engaged in oral sex.

RESTRICTIONS ON SPEECH AND RELIGION

Controversial speech and religious practices, such as witchcraft, were prohibited. Witches — or those labeled as such by the courts — were to suffer public whippings and/or the punishment of “ducking.”

All attempts to delude the people, or to abuse their understanding by exercise of the pretended arts of witchcraft, conjuration, inchantment, or sorcery or by pretended prophecies, shall be punished by ducking and whipping at the discretion of a jury, not exceeding 15. stripes. [1]

An early sketch of a colonial “ducking chair.”

“Ducking” involved strapping the guilty party — typically a woman — to a so-called “ducking stool.” This was a seat connected to a long arm of a large wooden contraption. Once bound to the seat, the victim would be wheeled around town, suspended over water, and dunked repeatedly to a jeering crowd.

Ducking was derived from an earlier punishment for witches in which the accused were bound and thrown into water to see if they floated — the supposed test of establishing whether a woman was a witch. However, by the 1770s, ducking was primarily an act of public humiliation and censure, used in an era when public reputation mattered much.

ALL SENTENCES FINAL

When a death penalty was imposed, there was no appeals process. The sentence was quickly executed. There was no opportunity to be granted a retrial based on new, exculpatory evidence.

Whenever sentence of death shall have been pronounced against any person for treason or murder, execution shall be done on the next day but one after such sentence, unless it be Sunday, and then on the Monday following. [1]

After a death penalty was imposed, the corpse was to be displayed in a gibbet. It would be a crime to take away the body.

Whosoever committeth murder by way of duel, shall suffer death by hanging; and if he were the challenger, his body, after death, shall be gibbeted. He who removeth it from the gibbet shall be guilty of a misdemeanor; and the officer shall see that it be replaced. [1]

Captain William Kidd’s body displayed in a gibbet. (Source: The Pirates Own Book, 1837)

According to Wikipedia, “A gibbet is any instrument of public execution, but gibbeting refers to the use of a gallows-type structure from which the dead or dying bodies of executed criminals were hanged on public display to deter other existing or potential criminals. In earlier times, up to the late 17th century, live gibbeting also took place, in which the condemned was placed alive in a metal cage and left to die of thirst. As well as referring to the gibbet as a device, the term gibbet may also be used to refer to the practice of placing a criminal on display within one. This practice is also called ‘hanging in chains.’”

The article continued, “Gibbeting was a common law punishment, which a judge could impose in addition to execution. This practice was regularised in England by the Murder Act 1751, which empowered judges to impose this for murder. It was most often used for traitors, murderers, highwaymen, pirates, and sheep stealers and was intended to discourage others from committing similar offences. The structures were therefore often placed next to public highways (frequently at crossroads) and waterways.”

* * * * *

POLITICS AND COMPROMISE

These punishments likely come as a shock to modern readers and would certainly have been excluded by the yet-to-be-written U.S. Constitution, which was amended to forbid “cruel and unusual punishments.”

It is relevant to note that the existing code of laws in Virginia — which James Madison described as the “bloody code” — included generous application of the death penalty. Reducing certain crimes to whipping, castration, and public humiliation was actually a liberal reformation; a reduction of punishment.

The use of the death penalty for sodomy was a carryover from British law imposed in the colonies. Yet in the 1770s, the culture had not changed much in that regard, and it was still acceptable and preferred to punish sodomy and many other crimes by death.

Jefferson’s objection to the overuse of the death penalty was noted in his writings:

“On the subject of the Criminal Law, all were agreed that the punishment of death should be abolished, except for treason and murder; and that, for other felonies should be substituted hard labor in the public works, and in some cases, the Lex talionis. How this last revolting principle came to obtain our approbation, I do not remember…It was the English law in the time of the Anglo-Saxons, copied probably from the Hebrew law of ‘an eye for an eye, a tooth for a tooth,’ and it was the law of several ancient people. But the modern mind had left it far in the rear of it’s advances.” [2]

Though Jefferson played a central role in the committee, he was unsettled with some of the results. As he opined about the Crime and Punishment bill to fellow committee member George Wythe:

“I have strictly observed the scale of punishments settled by the Committee, without being entirely satisfied with it. The lex talionis, altho’ a restitution of the Common law,…will be revolting to the humanised feelings of modern times. An eye for an eye, and a hand for a hand will exhibit spectacles in execution whose moral effect would be questionable… This needs reconsideration.” [3]

Ironically, the bill’s ultimate failure was because it was too liberal. The proposal was rejected before the General Assembly on June 18, 1779, because its punishments were viewed as too lenient.

Jefferson’s friend and political colleague, James Madison, later wrote to him in 1787 regarding the outcome of Bill 64, saying, “A rejection of the Bill on crimes and punishments…was lost by a single vote. The rage against Horse stealers had a great influence on the fate of the Bill. Our old bloody code is by this event fully restored…” [4] (The penalty for horse stealing was proposed to be reduced from death down to three years’ hard labor.)

The failure of Virginia’s Bill 64 paved the way for a new Revised Code to be enacted, and on December 10, 1792, sodomy and other crimes were codified as capital offenses. In 1800, a second reformation effort succeeded and the punishment for sodomy was reduced to imprisonment for a period of “not less than one nor more than ten years.” [5]

While Virginia’s Bill 64 appears to be draconian by modern standards — and it is draconian — it is important to relate it in the context of the prevailing laws and views the 1770s. It would also be disingenuous to make the assumption that the resulting committee proposal was an ideal creation in Jefferson’s eyes. Realistically, it was a product of compromise and politics, something which was endorsed as a way to spare the lives of people who would otherwise be put to death for certain crimes.

This article is not meant to be a condemnation of Jefferson, as his motivations were undoubtedly more freedom-oriented and just than most of his contemporaries. What can be deduced is that personal freedom was heavily infringed before, during, and after the signing of the Declaration of Independence. When modern folks pine for the “good old days” in post- colonial America, which supposedly embraced uninfringed liberties, some historical context is sorely needed.