While heads of household had the right to punish infractions within their house, the state and ecclesiastical courts of England and its colonies held the greatest amount of power when it
194 Susan Dwyer Amussen, “Punishment, Discipline, and Power: The Social Meanings of Violence in Early Modern England,” The Journal of British Studies 1, (January 1995): 4.
came to inflicting violent punishments on English subjects. By the time England began
colonization efforts, its penal system was very different from those in other parts of early modern Europe. The most notable feature, to those visiting from other countries, was the lack of
gradations in punishment. Very seldom did English courts mete out fines or prison sentences; they relied almost entirely on physical violence as a means of discipline. Non-lethal
punishments for minor crimes included whippings, standing in the pillory or stocks, and branding. Women who harassed their husbands or committed other misdemeanors might be punished with the cucking stool or the scold’s bridle. While such punishments were a part of everyday life in England, the most common punishment handed out by church and state courts in the seventeenth century was execution. The death sentence was applied to a wide range of
offenses in seventeenth and eighteenth-century England. Anything from petty theft to treason could send a prisoner to his or her death.195
The seventeenth century saw the expansion of English authority into North America. As settlers flocked to Virginia, Maryland, Pennsylvania, and New England colonies, they brought with them English forms of government and law. However, the violence with which the laws of colonial North America were enforced was mitigated by the unusual
circumstances in which the colonists often found themselves. Generally speaking, all of these colonies adopted the use of the same punishments found in England. Hanging, burning, whipping, branding, and maiming where all employed as methods of punishment by colonial courts. However, the crimes to which they applied differed not only from those of England but
195Gregory Durston, Crime and Justice in Early Modern England, 1500-1750 (Chichester, UK: Barry Rose Law Publishers Limited: 2004), 634-636, 668.; Clive Emsley, Crime and Society in England, 1750-1900 (New York: Pearson, 2010)1-5.
also from each other. Furthermore, colonial courts experimented with a wide range of punishments that were not in use in the mother country.196
The laws and court system of Virginia, England’s first North American colony, most closely resembled that of the mother country, although not at first. The first set of laws, passed by the leaders of the Virginia Company, demanded punishments that were a great deal harsher than those utilized in England for the same crimes. The Laws of the Colony of Virginea (1610) made every crime a capital offense. This meant that an individual could be executed for something as minor as using bad language.197 Following the collapse of the Virginia Company in 1619, the colony remodeled its court systems and laws to be identical to those found in England. Despite the acceptance of English Common Law, variations persisted. For instance, Virginian courts were much less likely to give out the death penalty even in cases that called for that punishment. Instead, Virginians depended on non-lethal forms of violence such as
whippings, brandings, and public shaming as punishment. The colony also experimented with non-violent methods of punishment which included a system of monetary fines and forced labor on projects that would benefit the community in which the crime took place. This alteration does not necessarily reflect a change in thought on capital punishment but rather a response to the unique conditions settlers in Virginia faced. Throughout the seventeenth century, Virginia was plagued by appallingly high mortality rates. In a colony where the average life expectancy was in the late twenties or early thirties, it made no sense to execute able-bodied adults when their physical or monetary power could be harnessed to serve the colony.198
196 Kathryn Preyer, “Penal Measures in the American Colonies: An Overview,” The American Journal of Legal History 26, (October, 1982): 326.
197 Christopher Waldrep and Michael Bellesiles, ed. Documenting American Violence: A Sourcebook (New York: Oxford University Press, 2006), 44-45.
198 Oliver P. Chitwood, Justice in Colonial Virginia (New York: Da Capo Press, 1971), 88-90; and Preyer, “Penal Measures,” 329-330.
The New England colonies and Pennsylvania saw the greatest divergence in state punishments from those found in England. Unlike Virginia, the inconsistencies found in these colonies were not a result of instability but rather of the religious beliefs of those that settled in these areas. Both the Puritans and the Quakers had voiced concerns over the types of
punishments handed down in England. Migration to the New World gave them the opportunity to try out new forms of nonviolent punishment. In Massachusetts Bay, Puritan authorities favored a form of law and order based on Biblical precepts. This form of law made property offenses such as theft punishable by fines, forced labor, and corporal punishment; while sexual offenses, such as adultery or bestiality, could draw the death penalty, though they frequently did not.199 Indeed, the court records from Essex County suggest that some areas may have been more lenient. On two separate days, the courts found a total of four people guilty of sexual crimes. Of those, three were sentenced to be whipped while the fourth was ordered to pay a fine.200
In Pennsylvania, murder was the only crime for which one could be put to death. The Quakers, believing that society had a duty to rehabilitate criminals, opted for prison sentences. This is not to say that the Quakers did not make use of violence as a means of disciplining colonists. Many other non-lethal forms of violent punishment were used just as they were in England. The Quakers, however, devised a few punishments that were foreign to the mother country as well. For instance, the crime of rape drew a sentence of castration. Recidivists could be confined to prison for the remainder of their lives or could be forced into servitude.
Sometimes those terms of service would be no different than those who indentured themselves.
199 Preyer, “Penal Measures,” 335-336
200Records of the Quarterly Courts of Essex County Massachusetts, 1664-1665 (Ipswich, MA, 1665), May 5, 1664 and April 27, 1664. The man who was fined had been charged with fornication. However, since he and the woman had married, he was given a lighter sentence than those who engaged in illicit sex and did not marry.
However, Pennsylvania did boast a few examples of English men and women being sold into lifelong slavery as punishment for their crimes.201