Punishments considered cruel and unusual by today’s standards were commonplace in the colonial period. Historian Martha McCartney describes practices intended to shame, horrify and appall.
Harmony Hunter: Hi, welcome to the podcast. I’m Harmony Hunter. Keeping order in the fledgling colony of Virginia was a grave matter in the 17th century Jamestown settlement. Some of the traditions that came ashore in that first colony were carried into 18th century Williamsburg as part of its English inheritance. We’re talking today about crime and punishment on the podcast and our guest today is historian and author Martha McCartney. Thank you for being here today.
Martha McCartney: You’re quite welcome.
Harmony: Well we wanted to jump right into a really juicy and actually turns out to be grizzly topic of crime and punishment. We’re talking about the 17th century, and we’re talking about Jamestown, which is a little bit earlier than the historic period that we normally discuss on this podcast. But Jamestown is the predecessor of Williamsburg. Jamestown is where colonization began in Virginia. The guidelines for crime, punishment and keeping of order are different than what you might expect in another type of social organization.
Martha: And also I would point out that Jamestown was the colony’s first capital city and that persisted until 1699 when indeed the capital was moved to Williamsburg.
Harmony: We know that laws and punishments are harsh and in a minute we’ll talk about exactly what laws and punishments there are, but there’s actually a reason for their harshness. What is it about the Jamestown colony that requires such strict oversight?
Martha: Well, when the very first colonists came, essentially the settlement was organized like a military encampment. And so for that reason, very strict order was necessary and as everybody knows, I think, by this time there was an awfully severe struggle to survive during those initial years. Finally some strong leaders with a very, very deep military background came over in 1610 and 1611 and martial law was imposed.
At that point in time, the death penalty was imposed rather commonly according to a written code of justice that was authored by two of the colony’s principal leaders. That kind of went by the wayside in 1616-1617 and then finally in 1618 the Virginia Company of London did what was called the Great Charter and that made a provision for representative government, giving rise to the Assembly which is an important change because they would be making laws that were applicable to the colony and also the code of justice that was established.
Harmony: So we know that these laws and punishments in colonial Jamestown are severe, but they’re not without precedent. These are actually a continuation of traditions that exist in England, where they’re coming from.
Martha: Yes. Absolutely.
Harmony: What are some of these crimes and punishments that we’re talking about? First of all, what are some of the crimes that we might be surprised to hear today were taken so seriously?
Martha: Oh, goodness. Well, first of all I think it’s important to point out that we had in Virginia a state church at that time; the Church of England, and so church officials were supposed to point out infractions of moral law.
For example, adultery and fornication were punished very harshly. A good example of that might be a woman who had committed adultery might be made to stand up in church, wrapped in a white sheet and holding a wand as a form of public shaming whereas her male partner might be whipped.
Not only the moral infractions like that, but drunkenness was another issue, domestic violence was another issue that they kept a watchful eye on, breach of promise. For things like slander, slander was taken very, very seriously and the rank and status that a person had in society made a huge difference.
For example, it wasn’t wise to slander a public official. If you slandered one of your peers or someone slightly above you, you might be ordered to post a bond guaranteeing your good faith, your good behavior going forward the same as domestic violence, but disagreeing or slandering a public official was much more serious than that.
Harmony: They also didn’t enjoy bossy women.
Martha: No they did not. Women who gossiped were treated to a ride in the dunking stool. That is to say, they were put on an apparatus something like a seesaw if you will with a little seat at one end and a long post and they would be dunked in the river. There was one woman during the early 1620s at Jamestown that really not only combined domestic violence with slander and being a gossip, but after her ride in the dunking stool she was trussed up and towed behind a ship across and back in the James River.
Harmony: My gosh, you could drown.
Martha: Yes, yes. I daresay she probably came very close to that.
Harmony: What are some of the crimes that were specific to James Fort or the outpost, the settlement there in the early days on Jamestown Island?
Martha: When they were struggling to survive and the colony’s population was very small, then a crime such as theft might bring about the death penalty. During that military period that I mentioned between 1610 and 1616-17 when we had the laws divine and martial, the punishments, the death penalty was invoked quite often.
I can think of one example of a person who stole and who purportedly – purportedly, because this isn’t well documented – was chained to a tree until he was starved. Colonists sometimes ran off to the Indians and so the colony began getting a very bad reputation and I think that helped to bring about some of the changes that were introduced in 1618-1619.
Harmony: We’ve talked about the crimes and we’ve alluded to some of the punishments, but what are some of the more common punishments that we’re seeing for these infractions?
Martha: Well certainly being flogged, whipped would be one example right there. Another might be put in the stocks or pilloried.
Harmony: We also see stocks and pillories as not quite the photo op for them as it is for us today. Their ears would be nailed? Their ears would be cut off?
Martha: Well, that would be for something very, very serious. When a person was pilloried or put in the stocks, that was another form of public shaming so they were there so that people could poke fun at them, insult them and so forth so that was ridicule. But the people who truly suffered having their ears nailed to the pillory or being cut off, that occurred because of what were considered crimes against the government that were not quite treasonous, but very severe.
I think of one man who made a mistake of criticizing a judicial decision and so he was pilloried and his ears were nailed. The most gruesome that I can think of, and this is just really awful, a man who was clerk of the Governor’s council slipped some documents out of the colony and sent them to his superiors in England. When it was found out his ears were cut off.
Another individual had his arms broken and an awl, or sharp pointed instrument, was thrust through his tongue. I mean, we’re talking about gruesome things. There was a man who was whipped between the Fort and the gallows and back again. So again, hanging also was a preferred mode when there had been a capital crime committed.
Harmony: And we have to make a distinction between hanging and hanging until death because there actually is a tradition of punishment which involves hanging, disemboweling and quartering.
Martha: Well, the only incident of quartering that I know about occurred in 1710. At that point a group of slaves, indentured servants and some Indian servants who seemingly had been brought in from the Caribbean tried to stage an insurrection one Easter Sunday. The presumed perpetrators were rounded up and interviewed and then after that, it sort of distilled down to a couple of individuals. They were executed.
They were drawn and quartered and in what is, I think, a particularly gruesome scene the quarters were sent out to different parts in the colony and put on display in a public place so as to horrify and appall and therefore keep others from wanting to try the same thing. One man named Salvador whose name implies that he was probably an Indian from the Caribbean or certainly South America, he was drawn and quartered and one of his quarters were put on display near the ferry landing in Jamestown. I think it’s kind of interesting that archeologists during the 1950s on the National Park Service property found a quarter, a male skeletal quarter in a well behind a long row house on the back street there.
Harmony: Maybe it was poor Salvador.
Martha: I’m wondering about that myself.
Harmony: We can only speculate about the motives of the past when we look at it from this vantage point, but it seems to me that these punishments are…they’re extremely brutal. They don’t verge on torture, they are torture and they’re very public, there’s a large element of shaming. Why do you think that was important to 17th century society here in this context when they’re a colony, when they’re an outpost?
Martha: Telegraphing a message. That’s the main thing. After all communication…we’re so spoiled by all the modern communications media, but back then word of mouth was the way it traveled. So consequently, if you committed adultery and the man was flogged or the woman was made to stand up in church in a white sheet that would have been really deeply embarrassing and it might have sent the message, “Oh, we better not do that.”
On the other hand, something more gruesome like defying authority, the fellows that lost the ears and had the broken arms and so on, that was a much more serious message. And, of course, the drawing and quartering that occurred to those two poor individuals that would have sent a strong message to those who were enslaved or who were indentured servants, “Better not misbehave.”
Harmony: This condition doesn’t exist for long. In 17th and 18th century Virginia we actually develop a court system and a new type of penal system. What are the changes that begin early on?
Martha: Well when Virginia’s first colonies, or shires, were established in 1634, there were local courts in each county and there were local justices. They were authorized to try cases of a lesser magnitude and anything that might require capital punishment was still brought to Jamestown to the colony’s central or general court; the Governor’s counsel just had it been functioning since the early 17th century.
Harmony: When we think about some of these punishments that existed and allow ourselves a shiver that that was a part of our English tradition and English inheritance. Today we would think of them as really cruel and unusual. We think of mainly incarceration and the penal system as a rehabilitative system. When we look back at the 17th century and the 18th century, the germ of the American nation, what is it important to remember about their policies and their approaches? What should we keep in mind when we look back at this period?
Martha: I would say that it’s very difficult equate modern society and modern sensibilities to those of the people in the past and if a person was accustomed to these very, very grizzly types of punishment being part of the society they knew, part of human society, it wouldn’t send the shivers that it does today. It just wouldn’t. Certainly it would have been scary and intimidating, but it just simply wouldn’t be very much like today at all.
Harmony: Martha, it’s been a fascinating conversation. Thank you so much for being our guest today.
Martha: You’re quite welcome.