Crime and Punishment in American History - Lawrence M. Friedman [33]
There were, to be sure, a few crimes in which women predominated. Witchcraft was one. Women were also more likely to be charged with fornication, at least according to the records in Massachusetts. 100 One reason, of course, was that the evidence of fornication was often right there at hand, in the shape of a swollen belly. Some crimes in practice were specific to women. One was infanticide. Susanna Andrews, who killed her bastard twins, in Massachusetts in the 1690s, went to the gallows for this offense. 101 The women who killed their babies were mostly servants, and unmarried; they were tragic victims themselves of Puritan morality and the double standard.
Infanticide was a difficult crime to prove; unmarried women usually gave birth alone, in secret; and they killed in secret, too. A mother could always claim that the child was stillborn, certainly not a rare event. A Massachusetts statute of 1692, copying an English statute of 1624, referred to “Lewd Women ... delivered of Bastard Children” and made it a crime to “conceal the Death” of a bastard, whether born alive or not; the punishment for concealment was death. 102 But eighteenth-century juries disliked this statute, and there was a tendency toward leniency in such cases and in cases of infanticide. Only one woman was convicted of infanticide in Massachusetts between 1730 and 1780, out of twenty charged with the crime.103
As we have suggested, most of the thousands punished for petty crimes, and for fornication, idleness, and other forms of misconduct, were people at the bottom of the ladder. Ministers of the gospel and substantial merchants were rarely whipped, put in the stocks, or branded. The Puritans in Massachusetts did, of course, punish some of the high and mighty for religious infractions, including heresy.104 But the lash of the law, in all of the colonies, fell overwhelmingly on servants, apprentices, slaves, smallholders, and laborers. In Virginia, as in Massachusetts, the defendants were “day laborers, servants, and poor freeholders.” 105
The state’s right to whip and punish servants (and slaves) was nothing but an extension of the right of the master or mistress. These people freely exercised their right to “correct” their servants, with a whip if necessary. Extreme cruelty was an offense; but it had to be extreme. In North Carolina, a law forbade “private Burialls of Servants and other persons.” As the attorney general, Thomas Snowden, explained, this was to prevent a cover-up by masters who murdered servants, and to end the “barbarous Custom of Burying the Bodys of the Dead in Comon and Unfenced places to the prey of Hoggs or other Vermine.” Every plantation had to have a place set aside for burying the dead; and neighbors were to be called in at burials, who would “in Case of Suspicion” view the corpse.106j
This was the dark side of colonial paternalism; and it was darkest with regard to black slaves, as we shall see. The silver lining of this paternalism, on the other hand, was the tendency to forgive and forget, provided the offense was not too gross; if the sinner repented, he was reabsorbed into the community. Eli Faber found a number of leading citizens in the Puritan colonies, officeholders in fact, who had once been punished for crime.107 Colonial society was, as we have said, firmly hierarchical, and servants had to keep their place. Still, apprentices and indentured servants, people definitely on the bottom, were part of the community; they were supposed to share the norms and beliefs of their betters. Male servants, at least, would someday have a chance to climb the ladder of success. Today, a man (or woman) with “a record” is stigmatized far more indelibly. And,