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Give me an ear!

Friends, Romans, countrymen, lend me your ears!” We’ve all heard that line from Shakespeare’s Julius Caesar hundreds of times, used and misused in so many contexts.

But maybe we weren’t quite expecting it to be, um, literally true.

1793 NC court order, 25 lashes

So The Legal Genealogist was spending another enjoyable evening with my friend The Complete English Lawyer, a wonderful 1820 overview of English law introduced to readers here, and stumbled across some punishments which seemed, well, let’s say to my 21st century mind (or even to the 18th century mind I’m sometimes accused of having) a tad, um, cruel and unusual.

For example, The Complete English Lawyer tells us, the following crimes carried the death penalty:

     •  Unlawful hunting.1

     • Sending a letter threatening to kill someone or burn a building unless something valuable is paid over.2

     • Any arson.3

     •  Any larceny from a dwelling to the amount of 40 shillings or more.4

     •  Robbing the mail, no matter what the value was of what was taken.5

     •  Theft of or killing an ox, bull, cow, steer, bullock, heifer, calf, sheep or lamb.6

     •  Stealing any cloth or woollen manufactures at night.7

     •  And one that baffles me … cutting down any hop-binds growing upon poles.8

And we find some punishments that we might characterize as downright shocking:

     • Perjury was punished by “six months imprisonment, perpetual infamy9, and a fine of 10l. or to have both ears nailed to the pillory.”10

     •  Getting into a brawl in a churchyard and hitting another person with a weapon — or even drawing the weapon with intent to use it — was an affray and the person would be excommunicated, “have one of his ears cut off; or, having no ears, he branded with the letter F. in his cheek.”11

     •  For claiming to be unable to pay your debts, the penalty was to be “set in the pillory for two hours, with one of his ears nailed to the same, and cut off.”12

     •  Anybody who forged a deed, court-roll or will with the intent to affect someone else’s right to real estate was punished by “standing in the pillory, and having both his ears cut off and his nostrils slit, and seared; by forfeiture to the crown of the profits of his lands, and by perpetual imprisonment.”13

But hey… we didn’t allow anything like that here in America, did we? At least not after the ratification of the Bill of Rights on 15 December 1791,14 right? Because that document contains, among others, the Eighth Amendment which, in its entirety, provides that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”15

So we can all sit back and pat ourselves on our red, white and blue backs and sneer politely at our cousins across the Pond, right?

Think again.

Because our research here in America into our own ancestors and their doings may turn up some crimes and punishments that aren’t a whole lot different from what was going on in England.

Ears were lopped off here just as they were in England. People were branded, flogged, locked in the public pillory, and tied to a stool and repeatedly ducked under water — and this sort of thing wasn’t just done before the Bill of Rights: some of these punishments persisted well into the 19th century.

In February 1791, just months after it ratified the Bill of Rights16 the New Hampshire Legislature enacted a law that included, for some offenses, that “the convict was to be set in the pillory, whipped, imprisoned, bound to good behavior, or fined, or suffer any or all the foregoing punishments.”17

In 1792, a Virginia statute calmly provided for the fees to be charged when a person was whipped — 42 cents “For whipping a servant, to be paid by the owner, and repaid by the servant; For whipping a free person by order of court (to be paid by such person)…; For whipping a slave by order of the court, to be paid by the county, and repaid by the public…”18

In 1807, Tennessee law provided that a horse thief “should receive on his or her bare back a number of lashes, not exceeding thirty-nine, and be imprisoned at the discretion of the court for not less than six months and not more than two years, should sit in the pillory two hours on three different days, and should be rendered infamous–and be branded with the letters H. F. in such manner and on such part of the person as the court shall direct” with death for a second offense.19

It wasn’t until 1825 that a Pennsylvania court held it cruel and unusual for a common scold to be “placed in a ducking or cucking stool, and be plunged three times in the water.”20

In 1828, the Virginia Supreme Court held that whipping a defendant (“punishment of offences by stripes”) wasn’t cruel or unusual.21

In 1832, punishment for larceny in Florida meant a “fine, whipping or the pillory, in the discretion of the jury.”22

In 1833, the Alabama Supreme Court noted that a person convicted of larceny of items worth $20 or more “shall receive thirty-nine lashes, upon his or her bare back, and shall stand in the pillory, at the discretion of the court; so as not to exceed two hours in each day, for three days” and horse stealing “by a fine, not exceeding five hundred dollars, imprisonment, not exceeding one year, thirty-nine lashes, and branding, with the letter “T,” either in the face, or on the right hand.”23

In fact, whipping wasn’t considered a cruel or unusual punishment for a very long time: “On the contrary, it was the kind of punishment … most usual, and known to and sanctioned by the law.”24 It was upheld as a punishment by the Delaware courts in 188625, the Maryland Supreme Court in 188326, the North Carolina Supreme Court in 192727 and by the Hawaii Supreme Court as late as 1931.28

And the death penalty was imposed here for a wide variety of offenses we wouldn’t imagine today:

As late as 1817, North Carolina still had twenty-eight felonies, or major crimes, punishable by death — including arson, burglary, murder, highway robbery, bestiality or sodomy, duelling, bigamy, prison escape, concealing childbirth, stealing slaves or helping them to escape, kidnaping free blacks and selling them, and conspiring to incite a slave insurrection; as well as second offenses of horse-stealing, maiming, forgery, and counterfeiting (including counterfeiting of lottery tickets).29

In fact, before 1900, the U.S. Supreme Court had talked a lot about cruel and unusual punishment — defining it, for example, as burning at the stake, crucifixion, breaking on the wheel, or the like30 — but it didn’t actually declare a punishment to violate the Eighth Amendment until 1910 when it struck down a law in what was then the territory of the Philippines that included lifelong consequences for a false entry into official records.31

So don’t be surprised by what you find in those old court records. That “give me an ear” bit might just have been literally the truth.


 
SOURCES

  1. John Gifford, Esq., The Complete English Lawyer; Or, Every Man his own Lawyer : Containing a Summary of the Constitution of England; Its Laws and Statutes, 4th ed. (London : A. Whellier, 1820); CD-ROM reprint (Columbia, Md. : Archives CD Books USA, 2002), “Offences against Public Justice,” at 169.
  2. Ibid.
  3. Ibid., “Offenses against the Persons and Property of Individuals,” 212.
  4. Ibid., 218.
  5. Ibid., 219.
  6. Ibid., 220.
  7. Ibid., 224.
  8. Ibid., 235.
  9. Infamy rendered the person incompetent as a witness and carried other legal status disabilities. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 619, “infamy.”
  10. Gifford, The Complete English Lawyer, “Offences against Public Justice,” at 167.
  11. Ibid., “Offences against the Public Peace,” at 170.
  12. Ibid., “Offences against Public Trade,” at 174.
  13. Ibid., “Forgery,” at 236.
  14. See “The Bill of Rights to the U.S. Constitution, December 15, 1791,” Library of Virginia, Virginia Memory (http://www.virginiamemory.com : accessed 10 Oct 2012).
  15. U.S. Constitution, Eighth Amendment; Cornell Legal Information Institute (http://www.law.cornell.edu : accessed 10 Oct 2012).
  16. Wikipedia (http://www.wikipedia.com), “Bill of Rights,” rev. 6 Oct 2012.
  17. State v. Almy, 67 N.H. 274, 276 (1892).
  18. William Waller Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia, from the first session of the Legislature in the year 1619, vol. 13 (Philadelphia : 1823), 396.
  19. Dagley v. State, 144 Tenn. 501, 509 (1921).
  20. James v. Commonwealth, 12 Serg. & Rawle 220, 225 (Pa. 1825).
  21. Commonwealth v. Wyatt, 27 Va. 694, 700-701 (1828).
  22. Ex parte Bell, 19 Fla. 608 (1883).
  23. Prince v. State, 3 Stew. & P. 253 (Ala. 1833).
  24. United States v. Collins, 25 F. Cas. 545 (C.C.D.R.I. 1854).
  25. McCoy v. Sheriff of New Castle County, 14 Del. 433, 442-443 (Del. Gen. Sess. 1886)
  26. Foote v. State, 59 Md. 264, 270 (Md. 1883).
  27. State v. Revis, 193 N.C. 192 (1927).
  28. In re Candido, 31 Haw. 982, 997-998 (1931).
  29. David Walbert, “Criminal law and reform,” North Carolina in the New Nation, North Carolina Digital History, Learn NC (http://www.learnnc.org : accessed 10 Oct 2012).
  30. In re Kemmler, 136 U.S. 436, 446 (1890).
  31. Weems v. United States, 217 U.S. 349, 366 (1910) (the sentence involved “confinement in a penal institution for twelve years and one day, a chain at the ankle and wrist of the offender, hard and painful labor, no assistance from friend or relative, no marital authority or parental rights or rights of property, no participation even in the family council. These parts of his penalty endure for the term of imprisonment. From other parts, there is no intermission. His prison bars and chains are removed, it is true, after twelve years, but he goes from them to a perpetual limitation of his liberty. He is forever kept under the shadow of his crime, forever kept within voice and view of the criminal magistrate, not being able to change his domicile without giving notice to the “authority immediately in charge of his surveillance,” and without permission in writing. He may not seek, even in other scenes and among other people, to retrieve his fall from rectitude. Even that hope is taken from him, and he is subject to tormenting regulations that, if not so tangible as iron bars and stone walls, oppress as much by their continuity, and deprive of essential liberty. No circumstance of degradation is omitted”).
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