Michigan Law Review Volume 80 Issue 6 1982 From Pillory to Penitentiary: The Rise of Criminal Incarceration in Early Massachusetts Adam J. Hirsch Yale University Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Criminal Law Commons, Law and Society Commons, Law Enforcement and Corrections Commons, and the Legal History Commons Recommended Citation Adam J. Hirsch, From Pillory to Penitentiary: The Rise of Criminal Incarceration in Early Massachusetts, 80 MICH. L. REV. 1179 (1982). Available at: https://repository.law.umich.edu/mlr/vol80/iss6/4 This Article is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. From Pillory to Penitentiary: The Rise of Criminal Incarceration in Early Massachusetts by Adam J. Hirsch* I. INTRODUCTION. • • . • • . • • . • . • • • . • • • . • • . • • • • • • • • • 1179 II. INSTITUTIONAL TRANSITION•...••.•.••••..•.•..••••••.•• 1181 A. The Gaol in Early Massachusetts ................... 1182 I. Function . 1182 2. Institutional .Design .............................. 1187 B. The Rise of the Penitentiary ......................... 1191 III. THE IDEOLOGY OF CRIMINAL PUNISHMENT •••••••.•••.. 1192 A. The Rothman Thesis ................................ 1192 B. Images of.Deterrence . 1194 I. Beccarianism .................................... 1195 2. Massachusetts Legislation ....................... 1197 C. Images ofRehabilitation ............................ 1203 I. The Workhouse ................................. 1204 2. Solitary Confinement . 1207 3. Rationalism ..................................... 1210 4. Massachusetts Legislation Revisited .............. 1213 IV. SANCTIONAL TRANSITION ............................... 1220 A. Punishment in Early Massachusetts ................. 1221 I. Puritanism ...................................... 1221 2. Communitarianism .............................. 1223 B. The Breakdown of Crime. Control ................... 1228 I. Change . 1228 2. Reaction . 1234 3. Independence ................................... 1242 V. EPILOGUE: TO 1830 ..................................... 1246 A. The Legislative Transition . 1246 B. Patterns ofIdeology ................................ 1250 VI. CONCLUSION ••.•.•••••••••.•••.••••.••••••••.••••••••••• 1262 I. INTRODUCTION Today, most Americans take incarceration for granted. It is the routine sanction for serious crime in our modem system of justice, * M.A., M. Phil., J.D. Yale University. - Ed. 1179 1180 Michigan Law Review [Vol. 80:1179 seemingly as elemental and inevitable a part of that process as police arrest, state prosecution, and judgment by one's peers. Punishments by their nature are meted out in units of years and months (if not dollars and cents). To be a "convict" nowadays is to be a person "serving time" in a prison cell for the commission of a crime. Yet the frozen landscape of the criminal justice system, when glimpsed in the light oflegal history, melts quickly; conceptual conti­ nents drift, oceans of doctrine ebb and flow. The wholesale incarcer­ ation of criminals is in truth a comparatively recent episode in the history of Anglo-American jurisprudence. Before the nineteenth century, offenders faced a variety of sanctions, including the pillory, the lash, the gallows, and exile. Though not unknown, "the sentence of confinement" was a rarity.1 Thieves in early Massachusetts served their victims, not time.2 The term "convict" applied literally to all persons found guilty, not to persons under prison sentences. 3 This is not to say, of course, that incarceration per se originated in modem times; prisons have always played a role in Anglo-Ameri­ can jurisprudence.4 But before the American Revolution, prisons served principally a congeries of nonsanctional functions - some of which remain familiar, others of which have fled the scene.5 While the transition from the old forms of criminal sanction to incarceration was perhaps not, as Jeremy Bentham claimed, "one of the most signal improvements that have ever yet been made in our criminal legislation,"6 one does not overstate to call it a signal devel­ opment in the history of Anglo-American criminal justice - a devel­ opment, one may add, that still wants adequate examination, much less explanation.7 This Article attempts to do both for one sample region: Massachusetts. Though the jurisprudential movement from pillory to penitentiary took place throughout the new American re- I. G. BRADFORD, STATE PRISONS AND TIIE PENITENTIARY SYSTEM VINDICATED 11 (Charlestown 1821) (published anonymously); see notes 34-41, 227-49 infra and accompanying text 2. See notes 243-48 i'!fra and accompanying text.· 3. J. HOWARD, THE STATE OF TIIE PRISONS 19, 296 (rev. ed. 1929) (first ed. Warrington 1777). 4. The Latin root of the word •~ail" (or "gaol") is "gaviola," which means cage or hole. This probably indicates the earliest form of this familiar institution. 5 OXFORD ENGLISH DIC• TIONARY 546 (1961). 5. See notes 13-33 i'!fra and accompanying text. Nor was the prerevolutionary function of imprisonment static. For an example of a prison function that had expired before the colonial emigration, sees. Mn.sON, HlsTORICAL FOUNDATIONS OF TIIE COMMON LAW 359-60 (1969) (Imprisonment for refusal to plead). 6. J. BENTHAM, A view of the Hard-Labour Bill, in 4 WORKS OF JEREMY BENTHAM 31 (Edinburgh 1843) (1st ed. London 1778). 7. See notes 69-79 i'!fra and accompanying text May 1982] Pillory to Penitentiary 1181 public, as well as much of western Europe, our limited focus presents a case study, a,nd a jumping-off point for further research.8 The story of the rise of the penitentiary in Massachusetts has many facets, and this Article addresses each in tum. Part II sets the stage by contrasting the penitentiary with an institutional predeces­ sor in the criminal justice system: the colonial gaol. While the gaol and the penitentiary both held inmates against their will, they shared few functional or administrative attributes. As Part II shows, the system of incarceration represented by the gaol differed dramatically from the system of incarceration represented by the penitentiary. In order to explain the transition to the penitentiary, one must first explore its ideological origins, and this exploration is under­ taken in Part III. Although the penitentiary arose in the midst of a revolution in the theory of punishment, Part III asserts that the ideo­ logical blueprint upon which the builders relied had actually been developed at a much earlier date. Intellectual innovation did not prompt the transition, for Massachusetts had merely dusted off a venerable ideological construct that might have been implemented at any time. Why Massachusetts chose the late eighteenth century to do so is the problem explored in Part IV. Here, the analysis shifts from crim­ inological theory to social reality, to an examination of the criminal• sanctions originally adopted in colonial Massachusetts and of the so­ cial setting that made those sanctions effective. Part IV concludes that widespread demographic changes occurring over the course of the eighteenth century weakened the initial system of crime control, and created a fear that crime had reached crisis proportions. In desperation, lawmakers turned to incarceration as ~e most promis­ ing means of restoring the status quo. Part V shows that the process of assimilating the new punishment into the Massachusetts legal sys­ tem was gradual, and marked by a continuing debate over the effi­ cacy and aims of the penitentiary. In the course of detailing these results, this Article also responds to some prior students of incarceration in America. Special attention is given throughout to David Rothman, whose pioneering scholar­ ship on this problem invites ·admiration - but also skepticism. II. INSTITUTIONAL TRANSITION The penitentiary was not the first facility for physical restraint to play a part in the process of criminal justice. It was preceded by the 8. This Article is the first installment of a larger study contemplated by the author. 1182 Michigan Law Review [Vol. 80:1179 gaol, an institution· shrouded in antiquity. Still, a comparison of these two institutions reveals sharp contrasts, and provides an over­ view of the transition that this Article explores. A. The Gaol in Early Massachusetts I. Function The Puritan colonists who repaired to Massachusetts in the early seventeenth century set out to build a model society for the edifica­ tion of mankind.9 Without forsaking their English heritage, the Pu­ ritans hoped to erase those features of English life which affronted their vision of a godly community. The gaol, an institution of long standing in England, apparently did not represent such an eyesore. Although a number of Puritans had languished in prison at the insti­ gation of Bishop Laud, 10 the colonial leaders quickly decided to build one of their own. 11 Opened in 1635, the Boston gaol served as Massachusetts' sole prison for eighteen years. But as settlers fanned out into the wilderness, organizing new townships as they went, local facilities for incarceration sprang up elsewhere. By 1776 Massachu­ setts was divided into fourteen counties, and each was required by law to maintain its own county gaol. 12 Imprisonment played a variety of roles in the legal system