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By Root 1652 0

within the walls of the prison ... or within a yard or enclosure adjoining,” in the county where the prisoner had been tried.58m People from the “middle and upper classes” found public hangings “revolting.” 59 Louis Masur connects the movement to the revulsion against “urban crowds.”60 There was, in the period, a new interest in privacy, seclusion, control of emotions, private space. Public hangings were considered too inflammatory; they excited base “animal” instincts. In earlier periods, periods of autocracy, public hangings may have been important outlets for these “animal” instincts, or may have served as dread warnings of the awesome power of the state. A republican society had different needs and demands: self-discipline, moderation, sobriety.61

This was, as we shall see, a persistent and recurrent theme in nineteenth-century legal culture; it affected whipping, too, and all forms of corporal punishment. People probably came to doubt that corporal punishment did a good job of chastening and reforming deviants. The “infliction of stripes,” according to Edward Livingston, was “momentary” in its application, inimical to the very “idea of reformation,” and when the whipping was finished, the sufferer, faced with “the alternative of starving,” would immediately repeat his offense.62 The aim of criminal justice had to be reformation; reformation meant instilling habits of discipline and strength of character into the guilty soul. Not only did bodily punishments fail this test, but they excited bloodlust and barbarism, encouraging the very behavior they were meant to punish. The remedy was the new path of punishment: the penitentiary system.

The Penitentiary System

Today, jails and prisons dominate the system of “corrections”; locking people up is the primary tool for punishing serious offenders. As we saw, this was by no means the case in the colonial period; jail was essentially a place to hold people for trial who could not make bail, and for debtors who could not pay debts. These primitive jails were not at all like the “big house” of gangster movies; they were dirty, undisciplined, unisex warehouses in which every form and shape of humanity was shoved in, helter-skelter.

All this changed in the republican period. Ultimately the prison became the centerpiece of correctional theory. Whipping, as we saw, fell into disrepute. In an age of rapid growth, impersonal cities, and rootless populations, public punishments (punishments of stigma and shame) seemed to lose their power. These tools worked best in small, closed communities.63n

New ideas about the sources of crime fed the urge to reform. People felt that bad company, vice-rotten cities, temptations, weaknesses in the family were producing waves of crime. They located the sources of deviant behavior in society itself, in the environment. This was, of course, quite different from the classic colonial view, which located the source of sin in individual weaknesses, or in the devil and his minions. But if society itself was corrupting, for some people, what was to be done? One solution was a kind of radical surgery: remove the deviant from his (weak and defective) family, his evil community, and put him in “an artificially created and therefore corruption-free environment.”65

From these notions sprang the penitentiary system. Another root was the old house-of-correction idea.o The Pennsylvania constitution of 1776 called for the construction of “houses,” to punish “by hard labour, those who shall be convicted of crimes not capital.” This constitution still clung to the idea of shaming: the public, “at proper times” were to be “admitted to see the prisoners at their labour” (section 39). In Massachusetts, too, after the state prison was built in 1805, visitors were allowed in for a fee, “which put prisoners on display as if in a zoo”; this system lasted until 1853.67

But the prison of the late nineteenth century was not yet a true penitentiary. In Connecticut, a prison was improvised in 1773 out of certain copper mines at Simsbury. Called “Newgate” after the English