5 - The Statute Imagined

Summary

The last two decades of the eighteenth century comprised the golden age of American legal reform. Reformers called for replacing frequent clemency under harsh laws with milder codes and fewer pardons. The prisons, not the gallows, became the most important instrument of retribution. In the words of Michel Foucault, penal reform meant the rise of a “gentle way of punishment.” Influenced by debates in neighboring Pennsylvania, New York State also chose this path. America hoped to prove to itself and the world that after its critique of English sanguinary punishment, the republic would prove to be a place where new laws might be designed for those experiencing the regeneration of the American Revolution in the new world. As J. Hector St. John de Crèvecoeur would describe it, America would now be a place of refuge, the “great American asylum.” Alexis de Tocqueville called America “the classical land of penitentiaries.”

The American Revolution, like all wars and upheavals, brought in its wake social instability and crime. In 1799, New Haven lawyer David Daggett published an oration entitled Sunbeams May Be Extracted from Cucumbers – But the Process Is Tedious. A Federalist, Daggett borrows Swiftian imagery to criticize Jefferson and other pie-in-the-sky social reformers – those who believe the experience of revolution might alter fundamental social relations. In this oration, Daggett mocks American Revolutionary theories of criminal law founded upon consent rather than the threat of official violence. “We are seriously told,” Daggett complains, “that men are to be governed by reason.