Crime and Punishment in American History - Lawrence M. Friedman [31]
Imprisonment
We have discussed the colonial system of corrections. From our standpoint, what is most obviously missing, as a punishment, is imprisonment. And, in fact, loss of liberty was not a standard way of making criminals pay. It was not totally unknown: a proclamation in Maryland, for example, in 1661 prohibited the export of “any sort of Come or graine out of this Province without expresse warrant ... under the penalltie of twelve moneths Imprisonment.”88 But Douglas Greenberg found only nineteen cases in New York between 1691 and 1776 in which jail was the basic form of punishment applied.89
A society short on labor was reluctant to lock people up; but it would be wrong to suggest that the colonies made a deliberate decision not to use jails for punishment. That would be anachronistic. The penitentiary system was basically a nineteenth-century invention. Nobody in the colonial period had yet advanced the idea that it was good for the soul, and conductive to reform, to segregate people who committed crimes, and keep them behind bars. Quite the contrary: rubbing the noses of offenders in community context was an essential part of the process of ripping and healing, which criminal justice was supposed to embody.
In one interesting and revealing case, Charles Sheepey, of Burlington, in West New Jersey (1687), was convicted of raping Elizabeth Hutcheson. (Sheepey used a time-honored defense: “hee had Carnall knowledge of the body of the said Elizabeth severall tymes,” but it was no rape—she “was alwayes as willing as hee.” The jury was not convinced.) The court sentenced him as follows: to be whipped, between the hours of two and three in the afternoon “upon thy naked Body at a Carts tayle,” all the way from the house of one John Butcher, to the house of one Abraham Senior, and then down to the “Markett house,” as many “stripes laid on as to the Magistrates ... Shall be thought meet”; and then to be taken and kept “in Irons for the Space of three Moneths,” and during that time, to be whipped three more times, on the seventh day of each month. During his three months’ imprisonment, the prisoner was to work for his bread; after that period was up, he was to be brought out during every quarterly session of the court, for a year and nine months more, to be “whipt in manner and forme as afore is mentioned.”90 Sheepey was one of the few who was sentenced to loss of liberty; but even for him, imprisonment was imbedded in a system of public, community sanctions.
There were, of course, colonial jails; and they were used. Jails had various functions. They held prisoners who were waiting for trial. They also housed debtors—imprisonment for debt was still the rule.91 A thief who was ordered to make restitution, and failed to do so, was a kind of debtor; he, too, might be kept in jail. But under a New Hampshire law of 1718 no person “convicted and sentenced for committing of Theft” was to remain in prison “for and on account of Restitution or Damages” more than thirty days, unless the creditor was willing to pay or guarantee keeper’s fees, up to two shillings and six pence a week. If the creditor failed to pay, the keeper could set the prisoner “at Liberty.”92
Imprisonment for debt was certainly, from our standpoint, harsh; but the debtors who were “imprisoned” were not necessarily locked in cells. In many colonies, a debtor could more or less come and go as he pleased, so long as he stayed within a certain area (the “prison bounds”); he went back to jail at night, to sleep. These “bounds,” or limits, could be liberal or severe, and they could grow or shrink, as the legislatures decreed. In 1774, debtors in the Hartford, Connecticut, jail pleaded to have the bounds extended to Main Street, “so that they could beg for alms and ask travelers to carry messages for them.”93 Debt prisoners were entitled to