Crime and Punishment in American History - Lawrence M. Friedman [26]
Branding and mutilation labeled a man or woman a deep-dyed sinner. The next step was banishment: exclusion from the community altogether. A criminal could be banished because (as a heretic, for example) he was a permanent danger, or because of repeated criminality. Those who would not repent, those who could not be regathered into the bosom of society, had to be driven out.g Elizabeth Martin, of New York City, was a “very Low Notorious Wicked Woman” whose life and habits were “evil,” and who was “Reputed a Common Whore as with Negro Slaves as to others and a great Disturber of the Peace.” She was ordered to get out of the city in 1738; when she refused, she was given thirty-one lashes and chased out forever.49
The Death Penalty
Of course, the ultimate form of banishment was death; from this, there was no danger of return. A death sentence meant the gallows; hanging was the usual way of carrying out the sentence. There is a fairly large literature on the death penalty during the colonial period. By the standards of the times, and by English standards, the colonies were far from bloody. By our lights, however, it seems barbaric to execute anyone for sodomy or adultery; but colonial leaders thought otherwise. And in a few regards, colonial law was more severe than England’s. Adultery was not a capital offense in England; but it carried the death penalty in Massachusetts Bay. In 1644, Mary Latham and James Britton were executed for adultery; she had betrayed her elderly husband and boasted of it.50
This was, however, a rare event. Apparently the colonists had misgivings about executing adulterers. In some instances, juries simply would not convict, because they did not want the death penalty imposed.51 After the mid-seventeenth century, there were no more executions for adultery;52 after 1673, executions for buggery, too, came to an end in New England.53
Some of the other capital laws were also all bark and no bite. Under the Laws and Liberties of Massachusetts (1648), a “stubborn or REBELLIOUS SON” sixteen or over “which will not obey the voice of his Father, or the Voice of his Mother” and instead lived in “sundry notorious crimes” was to be put to death. (Apparently a daughter so rebellious was unthinkable.) Cursing or smiting a natural father or mother was also a capital offense. But nobody, it seems, was ever put to death for these crimes. Prosecutions were rare; and the punishments milder. In the 1660s, Joseph Porter, Jr., a very rebellious child indeed, called his father “theife, lyar, and simple ape, shittabed.” He cut down his father’s fence, set fire to a pile of wood near the house, and called his mother “Gammar Shithouse, Gammar Pissehouse, Gammar Two Shoes.” He also “reviled Master Hauthorne, one of the magistrates, calling him base, corrupt fellow, and said he cared not a tird for him.” Porter also challenged the power of the authorities to punish him. An English royal commission agreed with him; his conviction was not in accordance with English practice. 54
On the whole, English law was more liberal with capital punishment than colonial law. In England, men and women swung from the gallows for theft, robbery, burglary; in the colonies, this was exceptionally rare. Property crimes were, on the whole, not capital. All things considered, too, the colonies used the death penalty pretty sparingly. Some capital laws were, as we have seen, dead letters. There were, it seems, only fifteen executions in Massachusetts Bay before 1660: four for murder, two for infanticide, three for sexual offenses, two for witchcraft; four Quakers were also put to death.55 In Pennsylvania, there were apparently only about 170 convictions in capital