Law and OrderTom Hay talks about crime and punishment in 18th-century Williamsburg. June 26, 2006
Lloyd Dobyns: Hi! Welcome to Colonial Williamsburg: Past & Present. This is “Behind the Scenes” where you meet the people who work here. That’s my job. I’m Lloyd Dobyns, and mostly I ask questions. This time, I’m asking Tom Hay, and in Colonial Williamsburg’s Historic Area, he’s the site supervisor of the Courthouse. I know that outside the Courthouse, you’ve got a pillory and you’ve got the stocks…how many people stick their head through and have their picture taken?
Tom Hay: I have absolutely no idea, but at a rough guess, I would say probably about three-quarters of the people who come through Colonial Williamsburg do that.
Lloyd: I would guess that kids would like that more than adults, but is that a good guess, or a bad guess?
Tom: I would say it’s a fair guess, but think about your average American married couple…
Lloyd: (laughs heartily)
Tom: …every husband wants his wife with her head through the pillories, and almost every wife wants her husband with his head through the pillories. I think wives tend to be slightly nicer than most husbands, but yeah, it is very popular with adults as well as children.
Lloyd: Actually the Courthouse is popular, isn’t it?
Tom: …yes, it is.
Lloyd: You can do things there other than just look.
Tom: Oh, absolutely. We’re told the essence of drama is conflict. Well, that’s also the essence of what goes on in a Courthouse – conflict – whether it is conflict over money, or conflict between an individual and the rules of society. That’s why people come to a courthouse. We made the decision very early on that the interpretations at the Courthouse were going to be substantively different than they are at our other sites.We started off the first year we opened as the Courthouse in 1991 with our “Order in the Court” program. To be fair, and not completely objective, I would say that it’s probably our most popular daytime program offering with our guests, but then, like I said, I am not objective.
Lloyd: Describe it. What do people get to do?
Tom: Well, what we do is go through the various different court records. We try to find cases that are both interesting and somewhat representative of what went on in Virginia county courthouses at the time. It is an interactive program, so our visitors will end up serving as justice, or as litigants, or as complainants, all sorts of different things, so they are part of the program. And one of the nicest compliments we ever got – and this is from one of the ladies that do interviews with our visitors – but this one visitor after a half hour of “Order in the Court” left, and she said, “You know, when all of us went in there…” – and you know, that’s 90 to 120 of our guests – she said, “we were all strangers, but we leave feeling like we know one another.” So we are able to get across a sense of the colonial community.
Lloyd: I certainly have no background in law.
Tom: Nor do I…
Lloyd: But what I do know I’ve gotten from reading. If I have understood my reading correctly, when you were judged in the courthouse in revolutionary times, that was it. There was no appeal, there was no going up [before the judge], whatever he said, that was done.
Tom: Well, when it comes to legal matters, we always like to say “yes and no,” or “yes, with exceptions.” And yes, you are in the main correct. But there are some differences. In civil matters, you can always – in virtually every case – appeal to the high court, the general court, that is down at the Capitol. That’s a whole different subject. In criminal cases, in misdemeanor crimes, the local court is going to be the last word, unless you are able to prove some sort of procedural error and convince the high court to take it on, or if it’s a very, very rare case, and the justices of the local court feel uncomfortable with it enough that they boot it upstairs to the high court. But by and large, the majority of the criminal procedure at the local level is so common and so minor, I mean petty victimless misdemeanors for the most part – failure to attend church, cursing in public, being drunk in public, bearing illegitimate children. It’s the sort of thing that’s not going to get bumped upstairs and will stay right there at that level.
Lloyd: I know the audience just said, “Failure to attend church?!” But that was a crime in those days.
Tom: Yeah – minor – as a modern analogy, it’s much like driving too fast on the Interstate. We all know what the legal speed limit is on the Interstate; we all know that most of us ignore it. We go seven to 12 miles an hour over the posted speed limit, because the real speed limit is different from the posted speed limit. If we do 90 mph on the Interstate, a police officer is going to pull us over and give us a ticket because that is over the real speed limit. And, it’s the same thing in the 18th century; the law says you are supposed to go to church once a month. If you fail to go to church at least once in the month without good excuse, it’s a five-shilling fine. That’s not a whole lot of money. On the other hand, another part of the legal code said that enforcement has to be within two months, and it’s done typically through the grand jury that meets once every six months.
Lloyd: (Laughs) I know how to beat that one…
Tom: Yes (laughs).
Lloyd: That’s not very hard. What were typical punishments in those days?
Tom: Number one is a court fine, again, if it is a victimless misdemeanor, you know that you’re just going to get fined, and unlike a lot of courts today, you don’t even have to pay that fine at that moment, because the man who collects the court fine also collects the local county taxes – that’s the local county sheriff or his deputies. So, you can just tell him to add it to your tax bill, because you’re a local. And if you are a typical farmer living on 300 to 500 acres, no one is worried about you skipping town and leaving your farm behind. So, yeah, they’re willing to trust you on that. For petty larceny, or similar crimes, then you’ll likely get whipped. Or, if you absolutely refuse to pay a fine, or if you are an indentured servant or a slave and don’t have the means to pay a fine, then you might get whipped twice for every shilling of the fine. So whipping was the most common physical punishment. The stocks – the one where you sit – that’s not a formal punishment at all, for the most part. It’s where they put you until you calm down or sober up. It’s the “drunk tank,” or the holding cell of the period.
Lloyd: The “drunk tank” of the 18th century.
Tom: Yes, exactly, and it remained that way as long as they used them well into the photography period. In England, you can see pictures of fellows who looked like the previous night they obviously had too good a time, and they are somewhat the worse for wear still sitting in the stocks. The pillories – the best way to remember the difference between the two is stocks sounds like socks, they’re both for your feet. Pillory sounds like pillows; they are both for your head. If you are in the pillory, you are either there for repeat thefts or for an assault, and you are exposed to public humiliation for up to two hours. Those would be the most common punishments of the day.
Lloyd: Do most people keep that straight – pillory and stocks? Most people that I have ever met refer to the pillory as the stocks and seem to think that’s what they are.
Tom: Yes, there is a very common misunderstanding about that, so much so that at times we have even stationed interpreters out there to talk to people about that, but most of the time they just end up taking people’s photographs, because standing in the pillories is our most popular photo op in the entire Historic Area. Yes, people do get it confused. Some people even call it a “stockade” which in the 18th century was a fort, and in modern times it’s a place for military incarceration, which I suppose is understandable. But yes, [there is] a lot of confusion about that – a lot of people think you might be there for days, when actually it’s just two hours. A lot of people are convinced that rotten tomatoes were thrown at people, and of course Thomas Jefferson tells us that tomatoes are just being accepted into the common diet at this time, so they are for the most part still kind of rare. We do know of one case where a person was much pelted by the populace in his time in the pillories. But the fact that that actually got mentioned in the newspaper to me implies that it was kind of rare. In London, well we know for a fact that people were pelted by garbage – or sometimes even worse – while they were in the pillories, particularly if they were unpopular with the mob. But as we all know, it is human nature to be somewhat meaner in bigger cities. In small towns, or county courthouse communities, where, if you run into someone on the street, chances are you know them. If you tossed garbage at someone who was in the pillories, they are going to know you and remember you and later might have some words with you about that.
Lloyd: What were common crimes in those days?Other than not going to church…
Tom: Or being drunk in public or cursing in public, yes, those are some of the most common ones. Petty theft – and just like today, if you are a respectable member of society, you are not going to engage in petty theft. It’s almost always something that was done by the disadvantaged in society. So we see cases…one of the favorite stories I like to tell comes from Richmond County. Rebecca Dance was an indentured servant, and she was arrested as part of a ring of thieves. The idea was that sometimes indentured servants would set up what today we’d call fencing operations. If you would steal from your master in a day and an age where people don’t move around faster than a man can ride a horse, well you can’t steal your master’s coat and then try to sell it in the same county, because people will recognize it as your master’s coat. So, you might pass it on to another indentured servant, who is going to pass it on to another indentured servant, and so on, and it might eventually be sold two or three counties away. So, they had these kind of informal networks set up for that. When Rebecca Dance was arrested as part of a ring of thieves, well everyone was tried and found guilty. All the men were whipped, but she was let go without punishment. She was arrested again a second time, and the same thing happened. And finally when she was arrested a third time, well, everyone was tried and found guilty, and everyone was sentenced to be whipped, and this time she was whipped, too, but that was not until her third time in court, and she was still whipped less than the men. That gives you a very interesting example of larceny and what could happen.
Lloyd: Yeah, you know you don’t think of a fencing operation in the Revolutionary period. It never occurs to you. You think it’ll be individuals who’ve had a couple of drinks they shouldn’t have had and taken something they shouldn’t have taken, but a fencing operation takes a while to set up.
Tom: Well human nature hasn’t changed. The attorney general’s slave, a fellow by the name of Ned, broke into Christiana Campbell’s tavern and helped himself to some belongings that belonged to some of her guests. He was arrested and tried, and found guilty, but in his case, it was felony theft, and he paid the greatest price possible – he was hanged.
Lloyd: Oh my, that was a hanging offense?
Tom: In his case, it was burglary, since he broke into a dwelling house to steal, but yes, yes, he was hanged.
Lloyd: Oh that seems rather severe even to me.
Tom: Yes, but property crimes were treated quite severely back then.
Lloyd: That’s Colonial Williamsburg: Past & Present. Check history.org often. We’ll post more for you to download and hear.