Crime and Punishment in American History - Lawrence M. Friedman [360]
c
Public, of course, did not mean “professional.” It did not mean that the district attomey worked full-time at this job and did nothing else.
d
The Puritan colonies usually applied the term sodomy to homosexual behavior, and buggery to bestiality.14
e
The offending animal was a “deodand,” that is, a chattel that caused a human death, and could be punished or forfeited along with the offending human. Under a law of New Hampshire, for example, the death penalty was prescribed for every man or woman “that shall have Camal Copulation with any Beast or brute Creature,” and the “Beast shall be slain and bumed.”16
f
Under a Rhode Island statute of 1749, a person convicted of adultery would be “set publickly on the Gallows in the Day-time, with a rope about his or her Neck, for the Space of one Hour; and then be whipped. ”45
g
The English, too, used banishment (“transportation”) as a pumshment; and here the colonies were on the receiving end: thousands of felons were shipped to the colomes in the eighteenth century. The colomsts did not always greet them with open arms. In 1670, Virginia, for example, tried to prevent the landing of “jaile birds. ”48
h
A burglar who did his dirty work on the sabbath was dealt with more harshly; in addition to the punishment listed, a first offender would lose an ear; a second offender lost his second ear. 74
i
“Oyer and terminer” means, literally, “hear and determine.” The phrase was used in some places as an ordinary name for certain criminal courts; but the phrase has sometimes been applied to a court specially commissioned to hear criminal cases arising out of some incident or disorder.
j
At a session of July 29, 1707, the General Court of the colony fined Gabriel Newby for burying John Deal, “an Orphant Boy” who belonged to Newby, in violation of the statute. The punishment was hardly severe: six shillings, eight pence, and costs.
k
The statute actually says that what is not presumed is “prepensed malice,” that is, malice aforethought, or, in plain English, a plan to kill; only with this sort of “malice” does a killing amount to the felony called murder.110
l
Guns were not authorized for the Boston force until 1884; in that year, the City Council voted to provide arms, at public expense, and each patrolman got a Smith & Wesson .38-caliber revolver. Before that, in the period after the Civil War, most policemen carried guns, even though these were, strictly speaking, unauthorized.33
m
New York’s law directed the sheriff or under sheriff to be present at the execution and to invite in addition the judges, district attorney, clerk, and surrogate of the county, “together with two physicians and twelve reputable citizens,” whom the sheriff or under sheriff would choose. There could also be up to two “ministers of the gospel,” chosen by the condemned, and “any of the immediate relatives of the criminal” who wished, plus whatever prison officials the sheriff should think “expedient” to be present. But no one else would be permitted to come; and no person under age.
n
Of course, a prison was itself a small, closed community; and whipping survived as a punishment within the prison itself. Sometimes this was explicitly recognized. Virginia’s penitentiary law prescribed that convicts guilty of “profanity, indecent behavior, idleness, neglect ... of work, insubordination, ... assault,” or violation of rules “prescribed by the governor could, ”under orders of the superintendent,” be punished by ”lower and coarser diet, the iron mask or gag, solitary confinement in a cell or the dungeon, or ... stripes.”64
o
Adam Hirsch argues that the penitentiary was neither so novel nor so American as some scholars, notably David J. Rothman, suggest; that the invention of the penitentiary was more evolution than revolution, and that the “new schemes of prison discipline ... reflected no ideological break with previous strains of carceral theory.” The house of correction