Punishment, Crime, and the Bodies of Slaves in Eighteenth-Century Jamaica

Punishment, Crime, and the Bodies of Slaves in Eighteenth-Century JamaicaAuthor(s): Diana PatonSource: Journal of Social History, Vol. 34, No. 4 (Summer, 2001), pp. 923-954Published by: Oxford University PressStable URL: http://www.jstor.org/stable/3789424 .

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PUNISHMENT, CRIME, AND THE BODIES OF SLAVES IN

EIGHTEENTH-CENTURY JAMAICA

By Diana Paton University of Newcastle

Students of criminal justice, crime, and punishment have long insisted that to understand the role and operation of law in any society, it is necessary to go beyond the examination of statutes.1 The texts of statutory laws reflect pressures on lawmakers and may reveal an elite's sense of the ideological, social and

political needs of the moment. They do not, however, reveal the working of the law in daily life. Laws may be ignored; they may be applied in ways that differ

markedly from their wording and from the intentions of those who drafted them.

Especially in the case of criminal law, we need to look at the workings of courts and other judicial and penal institutions to understand how the law was actually applied, interpreted, and understood. In this article, I use a newly discovered record of slave trials in eighteenth-century Jamaica to investigate the quotidian practices of the slave courts. Jamaican slave courts and the punishments they inflicted, I suggest, enacted rituals that both dramatized and sustained the power relations of this colonial slave society. Rather than representing the supposed common discipline of all to a single rule of law, as did the contemporary English spectacle of trial and punishment, Jamaican judicial practice emphasized the difference between enslaved and free, and valorized the slaveholder's private penal power.

The injunction to examine the working of courts in context is relatively eas?

ily obeyed in societies where judicial decisions were diligently recorded. English historians, for instance, have used the reams of paper generated by the courts

that dealt with serious crimes. As a result we have detailed accounts both of

the relative frequencies of different kinds of criminal prosecutions and the out?

comes of those prosecuted, and of the nature of interactions in and outside the

courtroom.2 Even in England, where many court decisions were recorded, the

great majority of legal interactions are beyond the reach of the quantitative historian, since they were made by magistrates who did not note down their

decisions.3 In addition, legal records produced within the common law tradition

rarely give more than summary information about the content of cases; they lack the detailed records of evidence produced by continental European legal systems.

If it is difficult to assess the quotidian operation of the law in England, it is

very much more so when we turn our attention to Britain's Caribbean colonies,

especially prior to the late-eighteenth century "amelioration reforms." In Jamaica slave crimes, whatever their seriousness, were tried before 1788 in slave courts

overseen by groups of magistrates and freeholders, without juries.4 Although the

courts were supposed to keep a record of their proceedings in a distinct book,

very little evidence of their day-to-day operation survives, quite likely because

many of the magistrates involved failed to observe this legal requirement.5 Nor

are newspapers, for later periods an important source for the study of court

proceedings, available for the period prior to the 1780s.6



924 journal of social history summer 2001

As a result of these evidentiary limitations, scholars who have attempted to examine the operation of law in Jamaica and other British Caribbean slave so? cieties have usually relied on anaiyzing developments in colonial statute law and in particular on the slave codes. These sources are useful: the successive criminalization of more and more actions by slaves, from drumming, to hunting, to gathering after dark provides a telling measure of the planters' sense of inse-

curity and of slaves' efforts to gain areas of autonomy within their constricted lives.7 Nevertheless, the examination of the slave codes cannot tell us how law

operated in daily life. It cannot reveal which of the myriad offences for which slaves could be prosecuted did in fact lead to court cases. Nor does analysis of which punishments were legal tell us how they were used.

Some historians have found sources that have enabled them to analyze the routine practice of Caribbean courts, including slave courts. Elsa Goveia's work on the Leeward Islands analyzed some cases from Montserrat.8 Emilia Viotti da Costa and Mary Turner have both used the records of Protectors of Slaves to

investigate the daily struggles between planters and slaves in British Guiana in the 1820s.9 Mindie Lazarus-Black analyzed the records ofjohn Grant, a Jamaican judge from 1774 to 1784, arguing that his decisions show that the courts allowed the free poor a space for resistance.10 As a result of this work we now have a much more fine-grained understanding of the uses of law by multiple parties in Caribbean slave societies during the late period of slavery.

This article represents an attempt to extend the work of these scholars by ex?

amining sources from an earlier period, the mid eighteenth century. While there are some studies of criminal trials of slaves in British North American colonies in this period, scholars of Caribbean slaves' trials all draw their conclusions from cases heard in the mid-17 70s or later, that is, after the Caribbean planter class, in recognition of the growing movement against the slave trade, began to pass laws "ameliorating" slavery.11 My main source is a summary, made in 1834, ofthe decisions of the slave courts of the parish of St. Andrew from 1746 to 1782.12 The document gives details of 162 cases involving 202 defendants. I use this document to analyze both the crimes prosecuted and the punishments inflicted. On the basis of this source I suggest that, although Mindie Lazarus-Black may be correct in arguing that Jamaican courts provided poor free people a space for resistance and in doing so promoted hegemony, her attempt to extend this conclusion to slaves' dealings with the courts is misleading. Certainly, the slave courts operated according to their own rule of law, but the specific legality ofthe

regime in which they worked made little reference to abstract claims of the jus? tice ofthe trial proceedings themselves, nor did it claim that justice was open to all. Rather, the dominant experience of legalities from the slaves' point of view was of terror and violence. The slave courts' attention to legality was expressed most particularly in the minute detail with which they specified the punishments to be inflicted. In addition, the bodily punishments described in the Jamaican document worked differently to those punishments that have been analyzed by historians of Europe and North America. The drama presented by these Jamaican punishments was about power and difference, rather than cohesion, community, and shame.

There are problems with the St. Andrew source. The document is now in the Public Record Office, among several enclosures bound with a despatch sent



PUNISHMENT, CRIME, AND THE BODIES OF SLAVES 925

from the Jamaican governor to the Colonial Office in April 1840. Aside from the fact that it relates to the parish of St. Andrew, it is not connected to the other documents with which it is bound, which deal with conflicts among St. Andrew's magistrates in deciding a case involving a disputed wage claim between a planter and an employee in the months after the end of apprenticeship, It may be that the document is simply filed by mistake; that the clerk who gathered the documents for enclosure with the despatch accidentally picked up this one also and transmitted it to London, where it has remained ever since. The lack of contextual information makes this a very fragmentary source. However, the fact that the summary was made in 1834, the year in which slavery was replaced with the transitional system of labor and social relations known as apprenticeship, suggests that its production resulted from the anxieties about law, justice, and

jurisdiction that accompanied that transition. We do not have access to the original from which the summary purports to

have been made. It is possible that the 1834 document is a forgery; that no original ever existed. This is not likely, however: there would have been no advantage to be gained from such a forgery, and the crimes and punishments recorded do

not jar with what we already know of Jamaica in the mid-eighteenth century. What is certain, though, is that considerable detail was lost in the process of

summarizing. For the first case, the summary provides a copy of the original record book, including the names of the witnesses and magistrates. Even for

this case we do not have a transcript of the evidence given in court (such a

transcript would be unlikely to have been made for any common law court in

this period), or descriptions of the crime from indictments or depositions. For

the rest ofthe cases we have far less detail: the document gives only the name(s) ofthe defendant (s), a brief description of their crime, and the court's decision.

The preparer of the summary tells us that the sentences were recorded "in the

words of the original," but the crimes are mostly described more tersely, giving almost no evidence ofthe context in which they took place. As a result, it is not

possible to investigate the ways in which different parties attempted to make

use ofthe court as a performative space, how defendants and witnesses narrated

their actions and interactions, or the ways in which magistrates used the trial

setting to convey moral lessons.13 In addition, there may well be some cases

missing. Although there is at least one case in every other year, there is a gap with no cases between 1756 and 1763, suggesting that some may have been lost.

Quantitative analysis of these cases, should, then, be used with care.

The fact that the records are those of the slave court also limit the kinds

of cases that could be heard in it to those in which slaves were defendants.

This obvious point is nevertheless significant, for it means that we cannot use

this source to investigate the full extent of legal consciousness among slaves. If

enslaved people did, from the earliest period of slavery, try to use legal resources

to limit their oppression, this document would not reveal that practice. However, in this period there was no mechanism by which a slave could institute a legal case against his or her master. The only way such a case could come to court

would be if a free person decided to prosecute a master on behalf of a slave.

In these circumstances the case would be heard in the common law courts of

assizes, quarter sessions, or petty sessions.

Despite these limitations, this document is, as far as I know, the best source for




determining the everyday practice ofthe slave courts in this period. It is, I believe, the only record of everyday slave court decisions in the British Caribbean prior to the 1770s, and one of very few records for this period from any Caribbean court.

Although it presents the proceedings of only one part of the criminal justice system, that part, having jurisdiction over more than 90% of the population, was by far the most heavily used.

The parish of St. Andrew, where these trials took place, surrounds Kingston, Jamaica's major city. The parish is mountainous, with the terrain rising steeply from sea level to above 3,000 feet. Its boundaries in the eighteenth century extended north to the center of the island, encompassing part of the Blue Mountains. However, its administrative center, including its court house and

parish Anglican church, was on the southern edge of the parish, at Half Way Tree. Half Way Tree, then a small settlement just north of Kingston, has since been subsumed within the city. It is now a significant intersection within the

metropolitan district of Kingston and St. Andrew, and a major terminus for buses to and from other parts of the island. The heart of the parish's wealth was produced by slaves on the Liguanea Plains, which had been dominated by large sugar estates since the late seventeenth century. Coffee and livestock were raised in the more mountainous areas. As elsewhere in Jamaica, land, wealth, and slaves were concentrated in the hands of a relatively small elite.14 In 1730, the only year for which we have census data broken down by parish, St. Andrew recorded a population of just over 7,800, of whom 92.9% (7,246) were enslaved. The small minority of free people was surrounded by an enslaved population experiencing demographic disaster, in which the population could increase only by massive imports of new slaves. In the fifty middle years ofthe eighteenth cen?

tury nearly 300,000 slaves were imported into Jamaica, but the total enslaved

population was only 125,000 higher in 1775 than it had been in 1730.15 The enslaved population was predominantly African born and suffered extremely high mortality. Its cultural links with the various African societies from which its members came were sustained by new arrivals from those societies. The slave court thus operated in a context in which there could be no assumption that

authority and hierarchy would appear natural or organic. Even if they recorded all court cases involving slaves in the period covered, the

St. Andrew records would not include more than a fraction of the punishments experienced by slaves. Slaveholders had a great deal of power to punish their slaves privately. The first comprehensive Jamaican slave code, passed in 1664 and

largely modeled on the Barbados slave code of 1661, placed almost no limits on the slaveholder's power to "correct" his or her slaves. Masters were not allowed to "wantonly" kill their slaves, but if a slave died in the course of a punishment for a "misdemeanor," the law stated that "noe person shall be accomptable to

any law." The 1696 slave code, which persisted almost unchanged until 1788, did not mention what was to happen if a slave died in the course of being punished. It did make the "willing, wanton, or bloody-minded" killing ofa slave a "clergyable" felony, for which a person convicted would receive the minor punishment of being burned in the hand.16 In 1717 it was made illegal for a




master to "dismember" a slave on his private authority, on pain ofa fine of ?100. This was how the law stood in the period covered by the St. Andrew slave court records.17

The slaveholder's power to punish was legally considered a delegation of state

authority. The 1664 slave code explicitly delegated state sovereign claims to the slaveholder, requiring that "all small... misdeamenours shall be heard and determined by the master of the Slave or Slaves."18 Even if the misdeameanour was discovered by or committed against a person who was not the slave's master, the master still had the authority to decide on guilt and punishment. Only if the complainant was not satisfied with the punishment given to the slave by the master was he or she to take the complaint to a JP, who could order additional

punishment. Although this explicit delegation of sovereignty was not included in the 1696 slave code, the mentality it expressed persisted. Some masters used the language of the courtroom themselves: Thomas Thistlewood, an overseer based in the parish of Westmoreland, noted in 1752 that he punished a slave for "several misdemeanors."19

As well as legitimating the slaveholder's direct right to punish, the state pro? vided resources for the punishment of slaves on the private authority of their masters. Slaveholders could hire state employees to flog their slaves. For in?

stance, a 1709 pamphlet describes the whipping of a woman who "had stole a Silver Cup, or some such small thing, from her Master." The writer notes that the master "might either correct her in his own House, or order her to be chastiz'd in the open Market, by the hands of the common Whipman." In this

case, "He chose the latter."20 The "common Whipman" appears to have been an individual employed by the parish, whose services could also be purchased by a planter.21 Small-scale, urban slaveholders probably made most use of this

service, for there would be little advantage to estates in sending slaves away for

flogging. We do not know to what extent slaveholders in St. Andrew either pun? ished their slaves or used the state "Whipman" to have them punished. Clearly, though, the records we have here are not the complete story of enslaved people's encounters with legalized violence.

The records from St. Andrew refer to only one part of what was a dual sys? tem of criminal justice, in which one system existed exclusively for free people, and another exclusively for slaves.22 Between 1664 and 1788, slave crimes were

tried before a slave court composed of five persons: three freeholders and two

magistrates.23 Magistrates were drawn from local property holders, and were

almost without exception major planters. There was no jury and no appeal.24 This dual system of justice was first adopted in the Barbados 1661 slave code, which became a model for many ofthe other slave colonies. This code explicitly declared that "Negroes" were a "heathenish, brutish, uncertaine and dangerous kind of people," unfit to be tried according to English law. The system of slave

courts was unique to the English colonies. In other American slave societies, which based their slave law on Roman law, slaves were tried in the same courts as

free people, although under discriminatory legal codes.25 The difference between

the two systems is less a question of greater or lesser degrees of oppression than

it is one of the cultural significance of law.26 In the French, Spanish, and Por?

tuguese traditions, judicial procedures were not ideologically charged as markers

of freedom and national identity, as they were in England. The symbolic im-




portance placed on jury trial in the English legal tradition made slaveholders reluctant to allow it to be used to try slaves.

The Jamaican slave courts operated informally. Like English magistrates' hear?

ings of the same period they did not take place on a regular schedule, but rather were convened as required. Nor did they always take place at designated court houses. The St. Andrew trials are interspersed throughout the year, following no discernable pattern in terms of when or how frequently they were held. This lack of regularity has wider implications. In eighteenth-century England the

regular courts, especially the assizes, took place accompanied by ritualized dis-

plays of power which, it has been convincingly maintained, constituted a large part of their purpose. Douglas Hay argues that the twice-yearly assizes were "a formidabie spectacle ... the most visible and elaborate manifestation of state

power to be seen in the countryside, apart from the presence of a regiment." The English courts presented a carefully managed spectacle that dramatised the

majesty and essential justice of the law, and the access of the whole commu?

nity to the rights of the "free born Englishman." Even while the law sustained

systemic class and gender hierarchies, great pains were taken to emphasize that all were subject to a unitary system of justice.27 The Jamaican court system told a different story, one centered on the division of the population into free and enslaved. Each group was tried in its own courts. The assizes and quarter sessions

courts, conceptualized as the top layer of the judicial system, had jurisdiction over only the small free minority of the population. As a result they did far less business than the English courts on which they were modeled. The majority of the population could under no circumstances be tried in them. The slave courts were presided over by well-known local figures rather than judges, and assembled

quickly when required. Although no doubt the magistrates in charge attempted to use the occasion to convey the justice of their decisions, the performance of

necessity was much less elaborate and seen by a smaller audience than was the

English equivalent.

II

The appendix to this article categorizes by offence and punishment the 162 cases in the St. Andrew records, which involved 202 defendants.28 Although the law defined many crimes, it is clear that many of the offences laid down by the slave codes were rarely, if ever, prosecuted. Rather than pursue the myriad slave offences against plantation security, prosecutors focused attention on a few.

By far the most significant was property crime. More than half ofthe defendants, a total of 106, were tried for crimes involving theft or possession of stolen goods. Most of these cases (seventy) were thefts of livestock: primarily sheep, but also

goats, cattle, hogs, fowls, and horses. In addition, slaves were prosecuted for

stealing other kinds of plantation produce, including sugar or canes (five cases) and coffee (four cases). (See Fig. 1.) These thefts reflect the mixed coffee, sugar, and livestock-based organization of production in the parish. They suggest a

thriving illicit trade by slaves in stolen livestock, which may well have been destined for the nearby Kingston markets.

Many ofthe crimes tried by the slave court were "status offences," that is, they could by definition be committed only by slaves. Prime amongst these offences




Figure 1

Goods Stolen in Theft and Possession of Stolen Goods Cases

<3T O* ^c

o?

fcrfjr ?V? &

* ??

-8? #

Type of Goods

Source: "Copy of the Record Book of the slave trials of St. Andrews Jamaica from 17 March 1746 to 16 Dec. 1782" enc. in Metcalfe to Russell No 51, 5 April 1840,P.R.O. CO 137/248. Total adds up to more than 106 because some cases involved theft of more than one type of goods.

was the crime of running away, for which forty-one slaves were prosecuted. The time the slave had been absent was usually specified, and varied from thirty days to four years, with a median of six months. (See Fig. 2.) In nine cases the time absent was not specified, but in all except one of these the crime of

running away was combined with another offence: either theft, or the slave was said to be in "rebellion," a term that seems to mean that he or she was armed. Johnson, for instance, was tried in 1753 for "running away and continuing out in an armed manner in open rebellion against his master." Planters rarely prosecuted slaves for running away until they had been absent for at least six months unless the runaway was also deemed "rebellious" or stole from the estate. With two exceptions, those runaways prosecuted for named periods of less than six months were also alleged to be rebels or thieves. Other sources demonstrate

that running away for shorter periods was very common, but was tolerated or

punished privately, rather than prosecuted in court.29 These records suggest that

running away for less than six months was considered a normal part of the




Figure 2

Reported Time Absent of Slaves Prosecuted for Running Away

Time absent

Source: As for fig. 1. Offences recorded as "running away for upwards of 6 months" are included in the "6 months" total, those given as "upwards of 12 months" are included in the 12 months total, and so on.

pattern of resistance and accommodation that made up daily life. Beyond six months away, slaveholders had little hope that the slave could be returned and

effectively subordinated to the discipline of slavery; this was the point at which

they began to turn to the courts. In later years the cut-off point was written

precisely into the slave codes, with legislation that defined a slave who ran away for six months or more as an "incorrigible runaway," who could be subject to more severe punishment than those who ran away for less than six months.30 Because there was another legally sanctioned system of punishment, the private power ofthe slaveholder, the slave courts were used to present an ultimate threat rather than to sustain everyday discipline.

In addition to the runaways said to be in rebellion, twenty-one people were tried for crimes of violence against their owners or other authority figures. (There were also a few cases in which theft was combined with violence against the slave's owner.) One such case took place in 1768 when a slave named Roger was convicted of "wiifully and maliciously" attacking one man, a bookkeeper, and for

"assaulting biting and wounding" another. For these crimes Roger was sentenced to death. Particularly intriguing is a 1748 case in which Billy, Flora, Daisey, and Francoise were convicted of "throwing stones and brickbatts at a member ofthe

assembly Mr. J Dunston as he was returning from the place of election." There is a suggestion here that the four may have been acting in the awareness of the

significance of election day events and were using this opportunity to make a

political point. Theoretically, these acts of violence or "abuse" could have led to the prosecu?

tion ofa free person who committed them. However, with many of these crimes,




the fact that the defendants were enslaved meant both that they were more likely to be prosecuted and that, if convicted, they would suffer more severe penalties. In constructing crime, Jamaican law did not abstract violence from the relation?

ship between the parties involved in it. The principle that violence by slaves

against white people was more serious than violence among slaves or among white or free people had been codified since the late seventeenth century. The 1664 slave code created the crime of "offer[ing] violence by striking or otherwise to any Christian," for which the punishment was whipping for a first offence, and the slitting of the slave's nose in addition to a whipping for the second of? fence. However, the principal of whiteness became salient very rapidly: in 1674 the crime became assault on a "white Christian," explicitly excluding from its definition slaves or free blacks who had converted. In 1677 the definition shifted

again: the offence became "assault on a white person." The 1696 slave code re? tained this definition of the crime but simultaneously simplified and increased the penalty, which became "death or any other punishment," at the discretion of the court. This definition remained in force until the 1816 slave code shifted it to "white orfree person," presumably in response to the free colored population's campaign for civil rights.31 It was, presumably, the law against slaves offering violence to a white person that legitimated Roger's death sentence. These laws extended and racialized the English legal principle of "petit treason." Under this theory, murder by a subordinate?a wife, child, servant, or apprentice?of the person who had legitimate authority over him or her?husband, father, or master?was considered treasonous within the household, a crime analogous to treason against the state.32 Jamaican lawmakers expanded this idea so that all white people had legitimate authority over all slaves. A violent act by a slave

against a white person could never be just that; it always carried with it the

implicit threat of slave rebellion and the overthrow of white power. The threat to the social order represented by slaves' violence can be seen in

the court's response to an event in 1774. In that year five enslaved men were

convicted of the murder of "Edward Seymour, planter," which they carried out

using "sticks and clubs" as weapons. Such terse descriptions tell us nothing of

the context in which such crimes took place. But four years earlier another

man, Daniel, had been convicted of "violently assaulting Sir Edward Seymour with a large clasp knife," a crime for which he received 300 lashes and was

then transported. Seymour, it appears, was a repeated target for the expression of slaves' hostility. His murder took place in a period of heightened anxiety about slave rebellions. The most significant eighteenth-century Jamaican slave

rebellion began in 1760; it took more than a year to suppress. In 1774 itself an

alleged conspiracy was uncovered in Westmoreland, leading to the execution of

at least one slave.33 In response to Seymour's murder, Dick, who was found to

be one of two "principals" in the crime, was sentenced to be "hung up in body chains till he be dead." Anthony, the other "principal," was to be "staked down

and made fast to the ground and burnt till he be dead." Frank, found to be an

accomplice in the murder, was to be hanged and then to have his head severed

and stuck on a pole. The other two men involved were transported. I will have

more to say about the precision of such sentences later in this article. For now, it is sufficient to note that they represent a response, not to murder per se, but

to the murder in particular of a propertied, elite, white man.




This is made clearer when we look at the small group of offences that can be identified as involving attacks on other slaves. Nineteen slaves were tried for

killing other slaves (thirteen cases, including one in which seven slaves were

tried for "forcibly entering a house, stealing various articles and killing a negro female therein"). The records give little detail about the circumstances under which these incidents took place. In a 1771 case, for instance, we know only that the slave Philip was charged with "killing a slave." That these cases were

prosecuted at all suggests that the offences were considered reasonabiy serious? after all, to kill a slave was to destroy a piece of valuable property. Still, acquittals occurred at a much higher rate in these cases than for most other crimes. Fewer than 50% of slaves charged with killing other slaves were found guilty. This

high acquittal rate was achieved because the slaves were frequently successful in

pleading that they acted in self-defense or in defense of their masters. Worcester, for instance, was acquitted in 1753 on the grounds that he had killed "in defence of his master's property." Most of those who were convicted received the death

penalty. However, they did not undergo the additional mutilations suffered by Dick and Anthony.

The last significant group of crimes reiates to obeah, a Caribbean complex of beliefs and practices aimed at manipulating the natural and social worlds, which is usually glossed as witchcraft or sorcery. Obeah was not criminaiized until 1760, when an anti-obeah law was passed in response to Tacky's Rebellion, and all five cases in the St. Andrew records took place after this date. Sarah, for instance, was charged in 1772 with "having in her possession, cats teeth, cats claws, jaws, hair, beads, knotted cioths, and other materials relative to the practice of obeah to delude and impose on the minds ofthe negroes." She was transported, as were the other two slaves found guilty of practicing obeah or possessing materials for its practice. It is notable that two ofthe five charged were women, casting doubt on Patterson's assertion that obeah practitioners were generally men.34

III

Prosecution in the St. Andrew slave courts did not automatically lead to conviction. Of the 202 defendants in the St. Andrew records, forty-nine, nearly a quarter, were acquitted. Cuba, for instance, was charged with stealing five

dollars, and acquitted. The court ruled that the prosecution was malicious, and ordered that the prosecutor (unnamed in the records) should pay the costs of the case.

In some cases the court made efforts to distinguish precisely those parts of a charge of which a slave was guilty. Two of the seven charged in 1767 with

"forcibly entering a house, stealing various articles and killing a negro female

therein," were found guilty of breaking and entering the house, and of beating the woman. But the court also decided that they were not guilty of taking anything with intent to keep it, nor was the death ofthe woman proven to be a result ofthe wounds inflicted by the defendants. (Of the five others, three were found guilty of all the offences while two were found not guilty.) Despite this distinction, the

punishment was still severe: the two received seventy-eight lashes each, and the court ordered that their right ears be "severed close to their heads, and nailed to the cotton tree."




Using the courts entailed some risk for slaveholders, opening a space over which they did not have complete control. A revealing incident recorded by Thomas Thistlewood demonstrates this. He came across Congo Sam, a slave who had run away from the estate that he managed, while walking in the nearby morass. Congo Sam attacked Thistlewood with a "bill," (a machete or cutlass) and he was only rescued with the help of another of his slaves, a man named Lon? don. Between the two of them, Thistlewood and London overpowered Congo Sam, and brought him back to the estate. Thistlewood laid charges of assault

against Sam, and sent him to the gaol at Savanna la Mar to await trial. How?

ever, when the trial took place the next month, London unexpectedly refused to act as a witness. As a result Congo Sam was acquitted.35 Nevertheless, we should not assume that all the acquittals occurred against the will ofthe master or prosecutor. The evidence in the St. Andrew document is too abrupt to know for certain, but the acquittals may well have included cases in which masters

prosecuted their slaves but then failed to appear as witnesses. This practice, which certainly took place in nineteenth-century Jamaica, avoided damaging punishment to the slave, while emphasizing both the master's power and his

magnanimity.36 It extended the sense that the courts were under the control of the master.

There is, however, little need to investigate elaborate manipulations leading to acquittals, for comparatively speaking these courts convicted at a very high rate. The conviction rate of 75.7% was substantially higher than that of English courts in the same period. Beattie's study of criminal trials in eighteenth-century Surrey, England, found that juries returned guilty verdicts in between 31.9% and

69.7% of cases depending on the crime, with forgery at the low and attempted rape at the high end of this scale. Property offences (representing 97% of the

cases examined by Beattie) led to guilty verdicts in 65.5% of cases.37 In compar? ison with what we know about other slave courts, the St. Andrew's court also seems to have convicted frequently. Elsa Goveia found that in Montserrat in

the 1780s and 90s the majority of cases tried by the Council were dismissed for

lack of witnesses or evidence.38 Schwarz's study of Virginia found overall con?

viction rates of 70%, while Hindus, in a study of antebellum South Carolina, found a conviction rate of 67% for men and 60.2% for women.39 The Jamaican conviction rate was thus higher than those found in all these studies.

The occasional acquittals at the St. Andrew court should not be taken to

imply either lenience or that the verdicts led slaves to think of the courts as a

location in which they could exert power. The acquittals were not distributed

evenly: ten of them, just over 20%, were for crimes identified as being committed

against other slaves, although only 11% of all the cases involved such crimes.

In particular, the crime of killing slaves was treated much less seriously than

was the murder of white people. A higher proportion of slaves charged with this

crime were found not guilty than of almost any other: eight out of nineteen, or more than 40%.40 In contrast, the court returned a verdict of not guilty in

only two cases of violent challenge to white authority or in which the slaves'

behavior was identified as "rebellious." This was one of the lowest rates of not

guilty verdicts, confirming that a major function of the slave laws and the slave

courts was to enforce the subordination and deference of slaves to white people as a group. Mindie Lazarus-Black hypothesizes, on the basis of Schwarz's and




Goveia's studies, that "the lack of predictability of verdicts of all but a few kinds of case, was critical to the development of the hegemonic force of the rule of formal law in British Caribbean slave societies."41 On the basis of the evidence from St. Andrew, however, it appears that this hypothesis needs at the very least to be modulated to take into account change over time. It may well be that the

post-amelioration courts, in which slaves were empowered to complain against their masters, operated to this effect. But verdicts in mid-eighteenth-century Jamaican slave courts were in fact reasonabiy predictable in those cases that mattered most to the maintenance of slavery. While not certain, verdicts were a good deal more predictable than in English courts. Before seeking to explain "hegemony" we need to have more substantial evidence that such a state was in fact achieved.

IV

Why did prosecutors bring these cases to court? Given that planters were able to punish their own slaves, why bother to use the institutions ofthe state? Several reasons are possible. In some cases, the prosecutor was not the owner of the slave. This was the case with the prosecution of a slave named London, for

"wilfully running against the chaise of Dr Dallas." In punishment London was to receive thirty lashes at the court house, and a further thirty at a local tavern. His master had to pay Dr. Dallas twelve pounds in compensation for the damage to his chaise. London was effectively held to ransom until his master paid up: he was to be held "detained" until the money was "delivered over to Dr. Dallas." A similar case was that of Juice, charged with stealing the sheep of Mr. Seagreave. He was found guilty, but in mitigation the court decided that he had acted "to

supply the loss of some sheep that was lost belonging to his master and not for

any profit to him." As a result he received thirty-nine lashes for a crime for which

many were transported or executed. In these cases Dr. Dallas and Mr. Seagreave apparently believed that prosecution was necessary if the slaves concerned were to be punished.

London's and Juice's cases were unusual, however. Free people who thought that slaves had committed an offence against them did not generally prosecute the slave concerned. Probably more often, the free person informed the owner or overseer of the slave, who would then take responsibility for his or her pun? ishment or prosecution. This was the procedure set out in the initial slave codes, and it seems to have persisted even when it was no longer explicitly required by law. Thus in the first case in the St. Andrew summary, which is the only one for which we have significant detail, the two slaves Phippa and Adonis were charged with theft of sheep that did not belong to their master. Nevertheless, their master

brought the case. This practice allowed for the prosecution of slaves in a way that reinforced, rather than disrupted, slaveholders' authority over their slaves. Dr. Dallas's action in going to court suggests either a breakdown in neighborly relations among slaveholders, or that London's master was of significantly lower status than was Dallas.

Some cases, then, were brought by planters in order to reassure neighbors that slaves' wrongdoings were taken seriously. Such prosecutions also reaffirmed the

principle ofthe slaveholder's disciplinary power over the slave. But in many cases




there was no question of anyone else being involved, since it was the prosecuted slave's owner or overseer who was damaged most directly by his or her actions.

Running away, for instance, might in the long term create a threat to the order of slave society as a whole, but its prime "victim" was the master or estate that lost the slave's labor as a result. In these cases, and the unknown portion of the other cases in which slaveholders prosecuted their own slaves, the decision to prosecute was based primarily on the dynamics of the relationship between slaves and estate authorities. Slaveholders who took their slaves to court probably hoped for a punishment more severe than they could legally order themselves:

mutilation, transportation, or the death penalty. There seems to have been a

rough dividing line between acts to be punished by the slaveholder and those that would be prosecuted in court.

Part of the decision involved a weighing of material factors. When a slave was sentenced to life imprisonment, transportation, or death, the court also decided on the value of the slave, and this sum was paid to the owner out of

parish funds. The practice was instituted by the 1717 "Act for the more effectual

punishing of Crimes committed by Slaves," which limited the value allowed to

forty pounds. The compensation functioned as a form of collective security. It lessened the likelihood that slaveholders would try to sell off their unruly slaves to unsuspecting purchasers. It also gave planters an incentive to have their most

disruptive slaves tried and sentenced, rather than keeping them on in the hope that some work could be got out of them. As David Barry Gaspar points out with regard to the same practice in Antigua, compensation, paid as it was out of general taxation, also represented a subsidy by non-slaveholding taxpayers to slaveholders.42

Some feared that this policy could be dishonestly manipulated. A house of

assembly committee of 1739 reported that several slaves had been executed for

thefts and "other crimes of no great account," and that many prosecutions were

"put on foot for the sake of lucre." It recommended that slave valuations in

theft cases should take account of the value of the stolen property, and that no

compensation be paid if the articles stolen were worth less than thirty pounds. The assembly did not go quite this far: it passed an act the next year denying compensation to the owners of slaves convicted of the theft of property worth less than five pounds.43 Compensation continued to be regularly paid, however.

Seventy-two slaves were either transported or sentenced to death in St. Andrew

during the thirty-six years covered by the slave court records. Even if the owners

in all the theft cases were disqualified from receiving compensation because the

goods stolen were of low value, there would still have been forty-two slaves for

whom compensation was paid. Despite this, more was involved in the decision to prosecute than a simple

effort to exchange troublesome slaves for compensation. Although a substantial

portion of slaves were transported or killed as a result of the court's decision, others received lesser penalties or were acquitted. It seems that the courts gave slaveholders an additional arena in which to demonstrate their power. Both mas?

ters and slaves must have been aware of the potential for prosecutions resulting in severe penalties. Without that potential, slaveholders would have found the

suppression of slave resistance even more difficult. Morris argues that in colonial

Virginia slaveowners used the courts to "affirm their power and authority."44




This was also true in Jamaica, but this affirmation took place in a context of weakness: the planters' control was fragile and needed constant support. The

performance was aimed at convincing slaveholders themselves ofthe legitimacy of their power as much as it was directed towards their slaves. Slaveholders'

participation in slave trials, whether as magistrate, freeholder, or prosecutor, affirmed their private power to punish. By dividing slaves' acts into those that should be ignored, those that should be punished immediately, and those that should be tried by a slave court, planters asserted the fairness of their private penal authority and of their control over prosecutions. While court documents

encourage us to read the operation of the courts as abstracted from the rest of

society, in practice there was a constant, if implicit, interaction between the different levels of judicial proceedings, both private and state-operated.

V

The slave court had significant latitude in choosing punishment: for many crimes the punishment fixed by statute was "any penalty as the court shall see fit." The St. Andrew slave court made use of several distinct punishments: flogging, mutilation of the defendant's body, transportation, and death. The first three of these punishments were frequently inflicted in combination with one another. Punishments were usually recorded in great detail. The appendix categorizes the

punishments recorded. There was substantial overlap between the punishments used by the slave

courts and those used in the punishment of free people by courts of the same

period in both England and Jamaica. All used death and flogging. Convicts in

English courts and Jamaican slave courts, although not free convicts in Jamaica, might be punished with transportation. There were, however, also significant differences. Free people in England and Jamaica were increasingly sentenced to

imprisonment for minor crimes, a punishment that was not used by the St. An? drew slave court. The slave court made frequent use of mutilatory punishments, which were not used either in England or for the punishment of free people in Jamaica. Moreover, even when the same punishments were used, they had different meanings.

Few prisons existed in Jamaica in this period. With the exception of a 1683 law which does not appear to have been implemented, no legislative provision was made for the building of prisons until the very end ofthe period covered by the St. Andrew records. Prior to 1759, the island seems to have had one prison: the Middlesex County Gaol in Spanish Town. In that year, an act provided funds for the building of two new county gaols, in Savanna La Mar (for the county of Cornwall) and Kingston (for the county of Surrey, to which St. Andrew

belonged).45 These gaols were used almost exclusively to hold free people, both debtors and those sentenced to serve time in prison. From the late 1770s parishes began estabiishing workhouses, which housed runaway slaves, slaves privately committed by their owners, and slaves given prison sentences by the courts. St. Andrew did not build a workhouse until the late 1790s.46 No sentences of

imprisonment were recorded by the St. Andrew court. This is a major distinction between the slave courts' practice and the punishment of free people in England and Jamaica.




More comparable to English penal decisions was the slave courts' substan? tial use of transportation as a punishment. Forty-seven St. Andrew defendants were sentenced to transportation, with individuals convicted of most of the ma?

jor categories of crimes receiving this punishment. Transportation was also the

primary punishment for serious crimes in the English criminal justice system between 1718 and 1775.47 Transportation of criminal slaves began soon after the English colonization ofthe island: the 1696 slave code specified that slaves who ran away for more than twelve months were to be declared "rebellious," and could be sentenced to transportation. In addition, slave courts could decide to punish slaves with transportation for any crime deemed a felony. If a slave was so sentenced his or her master or mistress was responsible for arranging that the slave was sent off the island.48 Phippa, the first person convicted in the St. Andrew records, was directed to "immediately receive on her bare buttocks one hundred lashes and be transported off this island by the first opportunity by her said master." Neither in this case nor in the statutes was any additional provision made for how the transportation was to take place: we must assume that slaves were sold to slave traders. The system persisted in this form until 1792, when the state took over responsibility for selling slaves sentenced to transportation.49

Transportation from Britain and Ireland was in this period also organized through a mixture of public and private authority: the courts, having sentenced someone to transportation, paid contractors to transport that person to the colonies and sell their indentures there.50 However, unlike the Jamaicans, the British and Irish convicts had no masters. Therefore, the state had to take respon? sibility for making the contracts for their transportation. Nor did transportation make its British and Irish subjects slaves; instead, they were usually sentenced to servitude for a fixed period of years. There was no legal provision for trans-

porting free people from Jamaica in this period, and the surviving records ofthe

Jamaican assize courts include no examples of such a sentence. With the exception of transportation, all the punishments given in St. An?

drew involved the public infliction of pain on the body of the convict. They worked through presenting a "spectacle of suffering," in the words of Pieter

Spierenburg.52 The "spectacle" was achieved through the permanent marking of the slaves' bodies as well as through the scene of the punishment itself. Some suffered the scarring inflicted by flogging; others the even more painful and per? manent disfigurement ofthe loss of one or both ears, the splitting ofthe nostrils, and on two occasions, the cutting off of a foot.

Flogging was by far the most commonly used punishment in the St. Andrew court records, used in eighty-eight of the 153 cases in which a punishment was

applied. The Jamaican magistrates thought of flogging as the mildest available

punishment. When used on its own it was primarily inflicted in minor cases of theft and for threatening behavior to a free person short of actual violence. Lashes were usually ordered in groups of 39, 50, 60, 78, or 100 lashes. (See Fig. 3.) The average number of lashes given was seventy-six, although they ranged from a minimum of nine to a maximum of 300. The latter was the punishment of Daniel, who assaulted Sir Edward Seymour with a knife. His sentence, clearly

exceptional, was to receive "100 lashes under the gallows with a rope round his

neck immediately and on the 29 March 100 lashes more and on 31st March

100 lashes more to be well laid on by the common executioner and within 21



938

25

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journal of social history summer 2001

Figure 3

Number of Lashes Inflicted on Defendants Punished by Flogging

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Source: Asfig. 1.

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Number of lashes

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days thereafter to be transported." Sentences of 200 and 300 lashes were given on only four occasions, on three of which the convict was also mutilated or

transported: these high numbers of lashes were not routine. This widespread use of flogging was in certain ways equivalent to contem?

porary English practice and to the penal patterns of the Jamaican assize courts.

Whipping was among the most frequently used punishments in England in the

early eighteenth century, and it was also used occasionally by the Jamaican assize courts.

In both jurisdictions, the whipping was generally carried out "at the cart's

tail," that is, the convict was tied to the back of a cart and whipped along a

specified route. For instance, Ruben Hymans, a free, and presumably Jewish, man convicted of stealing silk at the 1774 Surrey Assizes, was sentenced to be "tied to the tail of a cart and led through Port Royal Street and Harbour Street" in Kingston, and to receive a total of thirty-six lashes at six specified locations.53

Similarly, the slave court sentences for floggings usually directed precisely where

they should take place: at one or another tavern, at the court house, beneath the

gallows, under the cotton tree. Frequently the magistrates directed that a certain number of lashes take place in one location, followed by a second flogging in a second place. This was also the contemporary British practice. Despite these

similarities, there was a significant difference in extent of the punishment. The

Jamaican court of assizes sentences of flogging were usually for thirty-nine lashes, and the maximum number given was 117.54 Studies of eighteenth century Eng? land have found penalties of from two to twelve lashes or sentences of whipping "until the blood comes," although military courts consistently ordered floggings of much greater severity.55

In both England and Jamaica, flogging was considered disgraceful. It was not inflicted on gentlemen or gentlewomen because their supposed greater honor




meant that its loss through whipping "would be a greater punishment than the law intended."56 In Jamaica, a popular association between flogging and en? slaved status developed over time. According to John Stewart, the maroon war of 1795 began because the maroons were offended when two of their number were flogged after being convicted of stealing a hog. Stewart claimed that the maroons were indignant "at this ignominious sentence: they said, that if the white people had put their companions to death, they would not have com?

plained; but to disgrace and degrade them by a punishment inflicted only on

slaves, was such an injury and insult to the whole tribe as could only be atoned for by a retributive vengeance."57 Scholars today disagree with this assessment of the causes ofthe conflict, but this narrative demonstrates contemporary opinion about flogging.58 Despite this popular belief, though, flogging was not reserved for slaves. The assize courts awarded sentences of flogging to free people until

slavery ended.59 Further research is necessary to ascertain if these sentences were

disproportionately inflicted on free people of color and Jews. The twenty-five slaves sentenced to death in St. Andrew in these thirty-six

years also had parallels in the English criminal justice system, where executions took place after almost every assizes session. The death penalty was also imposed on free people tried in Jamaica at the assize courts. Slaves sentenced to death had committed crimes including running away for long periods, harboring a run?

away while possessing arms, stealing livestock, assaulting a planter, and murder. Most of these were simply ordered "to be hanged," itself a highly visible pun? ishment that took place as a public spectacle. Some, like the men convicted of Sir Edward Seymour's murder, received aggravated versions ofthe death penalty, including being burnt alive and having their heads severed and placed on poies after execution. Slaves convicted of running away for two years and of admin-

istering poison also received aggravated versions of the death penalty. Several

slaves found guilty ofthe murder of other slaves were hanged, but no additional mutilation of their bodies was inflicted.

Hanging remained in common use in Europe until the nineteenth century, but the accompanying practices of burning the bodies ofthe hanged or display-

ing their heads on poles were rarely performed by the eighteenth century.60 The

same is true of free people sentenced to death in Jamaica in this period: they were always sentenced simply to be "hanged by the neck until dead." In Jamaica, as in other societies where slave punishments have been studied, punishments for slaves were generally more severe than were those of free people. The point, however, is not simply to read penalties on a scale from lesser to greater severity. The punishments involving destruction of the convicts* bodies communicated

specific meanings for the English planters who designed them. In English penal tradition, attacks on convicts' bodily integrity had come to signify by the eigh? teenth century that the convict was a traitor, a rebel against legitimate authority. Those convicted of high treason were decapitated and had their heads placed on poles. The bodies of women convicted of petit treason were burnt after the

convict was first strangled by the hangman.1 The relatively common use of

these kinds of aggravated death penalties for slaves in Jamaica and other slave

societies thus expressed the sense also implied in the expansion and racialization

ofthe concept of petit treason for slaves.62 Slaves constituted a group of people




for whom almost any "crime" might be defined as treachery because it could be

interpreted as resistance to the social order of slavery. This association of slave crime with treachery was continued in the slave

courts' frequent use of bodily mutilations short of death. The St. Andrew court ordered the physical mutilation of forty slaves. Occasionally these mutilations were ordered on their own, but more commonly were accompanied by floggings, and sometimes preceded transportation. For example, Nero and Duckie, con? victed in 1747 of stealing a parcel of cured coffee, were both sentenced to have their right ears cut off close to their heads, and to receive sixty lashes. On two occasions the court ordered that convicts have a foot removed. More frequently one or both ears were cut off. Sometimes the court also ordered that a convict's nostrils be split.

Further evidence of the slave courts' use of mutilation is provided by W.

J. Gardner. Gardner, writing in the late nineteenth century, used eighteenth- century records of the St. Ann's Bay and St. Thomas in the East slave courts,

apparently now lost. He listed punishments including branding and the removal of legs and noses, as well as the mutilatory punishments listed in St. Andrew. Gardner noted that, as in St. Andrew, these punishments were frequently com? bined with floggings. In one case, that of Priscilla, who had run away, "[bjoth ears were cut off. She was placed in chains, and sentenced to receive thirty-nine lashes on the first Monday in each month for a whole year."63

In the St. Andrew records, sentences involving mutilation were presented in detailed and finely calibrated language, although the principal on which the calibration was made is hard to detect from the record available. Fine distinctions were made within the available mutilatory punishments. Thus, the court always specified whether the right or left ear was to be cut off. The lower part of an ear was to be cut off in some cases, while in others the court directed that the ears were to be cut off close to the convict's head. In one case in which six slaves were convicted of running away the court made a precise discrimination among their punishments. Quaco was to be transported. Ben was to have half his right foot removed. The other four men?Ned, Cudho, Quamina, and Cuffee?were to receive 100 lashes on their buttocks, and their right ears were to be cut off.

Some of the punishments moved beyond even this level of horrifying speci- ficity to give instructions about what was to be done with the removed body parts. Removed ears were to be nailed, variously, to the gallows and the cotton

tree, to the gate at the watch hut, and on one occasion to "the tree against the mill house on the Barbican estate." In one case, a slave named Richmond was sentenced to receive "50 lashes at the foot of the gallows well laid on his bare

buttocks, his right ear then to be cut off close to his head and nailed to the

gallows, immediately after which 50 lashes more to be well laid on."64 The fact that severed ears remained attached to locations around the parish long after the punishment had taken place extended the spectacular effect of punishment beyond the brief moment of its actual infliction.

The detailed records of the slave court betray a symbolics of mutilation that bears investigation. And yet, there is a danger that in seeking to interpret the finer details of such punishments we efface the violence inherent in their infliction. The alternative to analysis, however, is simply to express horror at the brutality of such punishments, a position which serves primarily to provide reassuring




emphasis on the distance between our society and the society under study. Rather than take such a position, I try here to understand what these punishments may have meant to those who experienced, ordered, and observed them.

Punishments involving the bodily mutilation of individuals not sentenced to death had fallen out of use in Europe prior to the eighteenth century. Ac?

cording to Pieter Spierenburg, cutting off the foot of a convict was not used after the sixteenth century. Although cutting off an ear persisted longer than other mutilatory punishments, it did not continue beyond the late seventeenth

century.65 The surviving records of the Jamaican assize and grand courts reveal no free people sentenced to punishments involving mutilation in this period.66 Very little historiographicai attention has been paid either to the meaning or the decline of this kind of punishment; historians have been more concerned to discuss the significance ofthe public execution. While it would be inadequate to assume that societies in which regular hangings were considered both essential and just had a profound respect for the physical integrity of the poor and the

criminal, it nevertheless cannot be insignificant that European convicts were not in the eighteenth century permanently mutilated, while mutilation of the bodies of slaves took place in many New World slave societies. The Jamaican practice of cutting off slaves' ears call to mind the punishment established in the 1723 Virginia slave code for perjury by slaves: they were to have their ears nailed to the pillory and then cut off, after which they were to be flogged.67 The readiness with which the slave court ordered the severing of slaves' ears and the slitting of their nostriis must have been facilitated by and also con? tributed to the slaves' status as non-persons. The only British analogue for these

punishments was in the case of individuals convicted of high treason, whose bodies were sometimes mutilated prior to their being executed. This again sug? gests that crimes committed by slaves were conceptualized as treacherous by definition.

Historians have rightly stressed that the spectacle of executed bodies and removed body parts worked to display the power ofthe state. But this was always a complex and meaning-laden display. Why were these locations in particular? the gallows, the cotton tree?chosen for floggings and for the display of the removed body parts? Pieter Spierenburg's work on the "infamy" ofthe hangman and, by extension, the gallows suggests that nailing convicted slaves' ears to the

gallows aimed to invoke that infamy, associating it with the criminal and his or her crime.68 The use of the cotton tree was, however, a Jamaican innovation. An example was the case of Horace, discussed above. He was sentenced to "39 lashes on the bare buttocks before the court house door, 39 more before the

cotton tree and his right ear cut off close to his head and nailed to said tree." As

well as the cases in which ears were nailed to it, there were four occasions when

the court instructed that floggings should take place beneath the tree. Half Way Tree was sited around a very large and old silk cotton tree from which it took its

name, and it is presumably this central location that is referred to. The massive

cotton trees were highly significant within Afro-Jamaican cosmology. African

and Afro-Creole Jamaicans believed that each person has a dual spirit: one, the

duppy that left the body on death and returned to its ancestral lands, and the

other, known as the shadow, that accompanied a human being during life. The

shadow was vulnerable to being caught by obeah practitioners, who could trap




it and keep it in a cotton tree. If the shadow was not released, the person who had lost it would die. Ritual objects placed within a cotton tree could release the shadows caught there. Objects placed in a cotton tree often included the hair or nails of the person concerned.69 Most information about the place of the cotton tree in Jamaican belief comes from planter observers in the eighteenth and nineteenth centuries, and from twentieth century ethnographies. However, an 1831 trial for obeah also demonstrates their importance. A witness, Jane Henry, gave evidence that she had gone to Polydore, the defendant, for advice because her brother was sick. Polydore told her that he "had her brother's shadow in the cotton tree and his hand nailed to it." Henry went on to describe a ritual

involving the sacrifice of a cock at night: the cock's blood along with rum was

poured onto the cotton tree, after which Polydore told Henry that he had pulled her brother from the tree. The shadows of two babies, he said, remained in the tree.70 While we do not have direct evidence, it is likely that the association between the cotton tree and shadow-catching was significant in Jamaican slaves'

understanding of the mutilatory punishments that involved the tree. The planter-magistrates' instructions in cases like Horace's suggest that cotton

trees had symbolic meaning for Jamaican whites also. The precise nature of that

meaning is less clear. The magistrates may have been seeking to displace the

power of obeah from the cotton tree by demonstrating their greater power over the bodies of African and African-Jamaican slaves. It is also possible, however, that they recognized the power associated with the tree and aimed to use it to their own ends, hoping in a sense to trap the shadows of their victims as well as

physically mutilating them. The belief in the symbolic importance ofthe cotton tree was something that Jamaican whites were aware of, tried to manipulate, to some extent adopted, and in doing so, probably increased. The violence of their efforts warns against a sense that cultural creolization involves merely the

intertwining of different cultural strands. Rather, the elite's use ofthe cotton tree

suggests the contested and power-laden nature of processes of creolization.71

VI

Even where the Jamaican slave courts made use of spectacular punishments such as flogging and the death penalty, which were also prominent in English criminal justice, their meanings in Jamaica differed from those attributed to them in England. Several historians have analyzed the spectacle of the public execution, describing it as a carefully staged ritual by which elites attempted to demonstrate the unity ofthe community/2 At least in the official view, the crowd and the authorities which collectively watched the punishment demonstrated their wholeness, differentiating themselves from the convict whose crime had

placed him or her beyond the boundaries of the community. In these events the physical infliction of the punishment on the condemned person was only part ofa complex set of practices which included processions, speeches, and ser? mons in addition to the hanging itself. These were religious rituals, in which the condemned was east as a sinner, and played a crucial role in participating?or, sometimes, refusing to participate?in the appropriate public display of peni- tence, making "last dying speeches" warning the onlookers not to participate in crimes, and so on. Historians debate the extent to which the crowd received the




message intended for it, but agree that the crowd was meant to be awed by the semi-sacred power ofthe state, and to assent to the justice and appropriateness of the punishment. Steven Wilf has shown how defenders ofthe public execution in the mid-eighteenth-century tried to re-organize its ritual elements in order to simultaneously control and re-emphasize the crowd's role.73 The taunting received by prisoners during the procession to Tyburn was considered by some

eighteenth-century penal theorists to be a valuable part ofthe punishment itself. I have found no eighteenth-century description of rituals surrounding the

execution of a slave in Jamaica. It is likely, however, that many of the ritual elements from English practice were maintained. Clearly there was a permanent gallows in St. Andrew. The instructions about the location of floggings suggest there was a sense of communication with an audience. Emilia Viotti da Costa has shown that the rebels in Demerara in 1823 were hanged with much ceremony, including processions and religious speeches made by the prisoners.74 It would be

surprising if similar measures were not undertaken in Jamaica. But what was the

meaning of such rituals in a slave society? Who was the audience? Did masters

gather together slaves to take them to watch a public execution? And what lessons did slaves who did watch learn?

It is possible that some Jamaican executions took place without significant crowd participation. Thomas Thistlewood's starkly casual comment about the execution of a slave from his plantation suggests that this happened in at least one case. He recorded in his diary, "Received ... Robin's head, who was hanged yesterday for running away with those two boys. Put it upon a poie and stuck it

up just at the angle ofthe road in the home pasture."75 The execution apparently took place elsewhere, without even Thistlewood's presence.

In those cases where masters did take their slaves to executions, the dynamic must surely have been very different to a European execution. We have almost no evidence from Jamaica on this topic, but there is some from other slave societies. An article on criminal justice in Georgia quotes, without analysis, a fascinating description by a 16-year-old white girl ofthe execution ofa slave for attempted rape in 1821. Her description claims that slaves participated in the event with the same motives as free people: "The high and low the rich and the poor the free and the bond alike pressing forward to the gallows their desires of seeing the

law enforced and crime meet its own reward." But later in the description she

notes: "On one side ofthe gallows were the colored people and on the other side

the white people who had gathered on the little hillock. It was quite gratifying to the feelings to see the willingness of slave owners to teach their Slaves an

important lesson by sending them here to day."76 In this case, then, the slaves

may not in fact have chosen to attend. There is a world of difference in the

meaning of a ritual of power which members of a crowd choose, for whatever

reason, to participate in, and one at which their attendance is compulsory. As

Viotti da Costa argues, punishment in slave societies produced "an arbitrary,

haphazard, and discriminatory justice, whose primary goal was to display and

reinforce the absolute power of master over slave."77 Slaves were constructed as

lying beyond the boundaries of the community. While the rituals of execution

and mutilation emphasized the power of the state, they did not construct the

watching audience as an organic community. Before the nineteenth century very few Jamaican slaves were Christians, so the religious meaning ofthe ritual would




have been very different, and the condemned slaves would have been unlikely to produce the "appropriate" penitent speech of the condemned sinner.

Reinforcing the point that these punishments communicated a different mes?

sage to a different audience than did spectacular punishments in non-slave so? cieties is the fact that the pillory and the stocks were absent or almost absent from the Jamaican slave courts' penal repertoire. The pillory was occasionally used as a penalty for free people, as for instance in the case of Samuel Thornton, a carpenter sentenced to spend four hours in the pillory in Kingston for his par? ticipation in a fraud.78 Stocks (also known as "bilboes") were a commonplace feature of plantation discipline, but were used only once by the St. Andrew slave court. Richard Franklin was put in the stocks for 2 hours only on conviction of

"beating and abusing" a planter. The court noted that the punishment was light and said that this was because the planter "did in some measure take his own satisfaction by beating the said negro man and putting him in the stocks."

In their frequent use in contemporary England, shame was a constitutive part of the punishments of pillory and stocks. Being put on display in such a way meant that the whole of the criminal's community knew of his or her trans-

gression. The community was expected to, and usually did, participate in the

punishment through taunting and throwing rotten vegetables and fruit at the detained person. According to John Beattie, "public punishment performed the wider function of reaffirming the moral boundaries of the society."79 The lack of shaming punishments for Jamaican slaves underlines the difference in the

meaning of public punishment for slaves and free people. While in European punishments of display the watching crowd was supposed to be both participating in the infliction of and being intimidated by the punishment, for watching slaves the expectation was that punishment served purely as intimidation. Whippings were inflicted in very public places: the market or central square in towns; in front of the great house on plantations.80 But fellow slaves were not expected to taunt or shame the individual undergoing punishment, and that individual was not expected to feel disgraced. The displays of the mutilated body parts of convicted slaves were less about gaining assent to the power of the state than

they were about emphasizing the extent of that power.

Slave law backed up and legitimated the private power of slaveowners. The slave courts and the punishments privately ordered by slaveholders worked to?

gether to name slave resistance as crime, an essential requirement for the ide?

ological reproduction of a slave society. The slave courts in which slaveowners came together to assert the legitimacy of their power played a key ideological role in transforming, from the point of view ofthe planters, what was otherwise naked violence into legitimate punishment. By allowing unlimited "correction," as did early slave codes, the law domesticated and naturalized the conflict be? tween master and slave, analogizing it into the equivalent of the relationship between husband and wife, or father and child. At the same time, the existence of the slave courts asserted that this privatized "correction" operated within an overall system of law. In a situation in which planters may well have found it hard to have confidence in their natural authority, these laws and practices reassured them that their power was familiar (in both senses), organic, and natural.




The evidence of the St. Andrew slave court confirms the conclusions drawn

by scholars who have worked from statutory law: these courts operated a severe

system of trial and punishment. But it also provides evidence about the day-today use of statutory law that cannot be obtained by examining statutes. The St. Andrew court records suggest that, despite the multiplicity of illegal actions that slaves could commit, slaveholders were primarily concerned about two crimes:

running away and theft. The records also give some insight into the variety of strategies adopted by slaves to survive their enslavement, including theft of plantation produce. In addition, they provide hints about conflicts among slaves. The variety of cases involving violence committed by one slave against another demonstrate that in discussing slave "crime" we are not always dealing with clear-cut resistance. The limitations of this evidence, however, make it difficult to draw any firm conclusions about the social context of these events. Such cases demonstrate the need for more research on the social history of

eighteenth-century Jamaica, about which we still know surprisingly little. What is clearly shown by these records is that Jamaican penal practices were

similar, but not identical, to those of other eighteenth century British colonial slave societies. Throughout the British colonies, ruling classes adapted English penal practice, changing it so that it was more suitable for the slave societies

they established. The changes made in the process were substantial, including the

operation of parallel court systems and the use of punishments that were rarely or never used by courts in England. Like the slave courts in the North American

colonies, the Jamaican slave court used punishments that focused intensely on the bodies of those it convicted of crime. These punishments were brutai and

violent, but they also carried meanings recognizable to English observers. How slaves read the punishments is more difficult to ascertain, although the use ofthe cotton tree is surely significant. For English audiences in the colonies, the routine

use for slaves of punishments that symbolized treachery underscored the claim

that enslaved people were outsiders who had to be perpetually subordinated to

all white people. Any challenge to this subordination was, or could become, rebellion against legitimate authority. As in England, authorities managed the

scene of both trial and punishment. But whereas in England this management aimed at producing a sense of cohesion, in Jamaica it emphasized the outsider

status ofthe majority ofthe population.

Department of History University of Newcastle Newcastle Upon Tyne NE1 7RU United Kingdom



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ENDNOTES

1. I would like to thank Douglas Hay, George Reid Andrews, and Kate Chedgzoy for their carefui readings of this article, and Jonathan Dalby for sharing with me data from his work in progress on the records ofthe Jamaican Assize and Grand Courts, held in the Jamaica Archives, Spanish Town. This study is now published as Jonathan Dalby, Crime and Punishment in Jamaica: A Quantitative Analysis ofthe Assize Court Records, 1756-1856 (Mona, Jamaica, 2000).

2. Some of the more important qualitative and quantitative studies include J. S. Cock? burn, A History of English Assizes, 1558-1714 (Cambridge, 1972); John Beattie, Crime and the Courts in England 1660-1800 (Oxford, 1986); Douglas Hay and others, Albion's Fatal Tree: Crime and Society in Eighteenth Century England (London, 1975); Peter Linebaugh, The London Hanged: Crime and Civil Society in the Eighteenth Century (Cambridge, 1992); and, on church courts, Laura Gowing, Domestic Dangers: Women, Words, and Sex in Early Modern London (Oxford, 1996).

3. This does not mean they cannot be studied: memoirs of magistrates, magistrates' notebooks, and books of advice to magistrates have all been used to try to reconstruct their work. See Norma Landau, The Justices of the Peace, 1679-1760 (Berkeley, 1984); Robert B. Shoemaker, Prosecution and Punishment: Petty Crime and the Law in London and Rural Middlesex, c. 1660-1725 (Cambridge, 1991); Douglas Hay, "Patronage, Paternal? ism, and Welfare: Masters, Workers, and Magistrates in Eighteenth-Century England," International Labor and Working Class History 53 (1998): 27-48.

4. As a result of the slave code passed in 1788, slaves indicted for serious crimes were tried at slave courts convened after the regular Quarter Sessions courts, at which verdicts were reached by juries and decisions were recorded. "An Act ... for consolidating and bringing into one the several laws relating to slaves and for giving them further protecting and security for altering the mode of tryai of slaves charged with capitai offences and for other purposes," P.R.O. CO 139/44, hereafter cited as 1788 slave code.

5. "An Act for the Better Order and Government of Slaves," P.R.O. CO 139/8, here? after cited as 1696 slave code.

6. The National Library of Jamaica holds copies of the Royal Gazette from 1780 to 1782 and, with a few exceptions, from 1790 on. Other newspapers are available from later periods.

7. See for instance Elsa V. Goveia, The West Indian Slave Laws of the 18m Century (Barbados, 1970); Orlando Patterson, The Sociology of Slavery: An Analysis ofthe Origins, Development and Structure of Negro Slave Sockty injamaica (London, 1967); Edward Brath- waite, The Development ofCreok Society injamaka, 1770-1820 (Oxford, 1971); Neville Hall, "Law and Society in Barbados at the Turn of the Nineteenth Century," Journal of Caribbean History 5 (1972): 20-45. For an attempt to get beyond statute law see two articles by Mindie Lazarus-Black: "John Grant's Jamaica: Notes Towards a Reassessment of Courts in the Slave Era," JourrudofCaribbean History 27, no. 2 (1993): 144-159 (which deals only with the courts in which slaves could not be tried) and "Slaves, Masters, and Magistrates: Law and the Politics of Resistance in the British Caribbean, 1736-1834," in Contested States: Law, Hegemony, and Resistance, ed. Mindie Lazarus-Black and Susan F. Hirsch (New York, 1994), pp. 252-280 (which tries to interpret Caribbean slaves' experience of legal processes, but does so on the basis of very little evidence from the Caribbean, hypothesizing instead on the basis of evidence from North America).

8. Elsa V. Goveia, Slave Society in the British Leeward Islands at the End of the Eighteenth Century (New Haven, 1965), pp. 195-6.

9. Emilia Viotti da Costa, Crowns ofGlory, Tears of Blood: The Demerara Slave Rebellion of 1823 (New York, 1994), pp. 63-74; Mary Turner, "The 11 O'clock Flog: Women, Work,




and Labour Law in the British Caribbean," Slavery andAboUtion 20, no. 1 (1999): 38-58. The Protector of Slaves was a new judicial position created in some British colonies in the nineteenth century, with responsibility to hear slaves' complaints against their masters, mistresses, and managers.

10. Lazarus-Black, "John Grant's Jamaica."

11. Studies based on eighteenth century North American slave trial records, which are much better preserved than those from the Caribbean, include Philip J. Schwarz, Twice Condemned: Slaves and the Criminal Laws of Virginia, 1705-1865 (Baton Rouge, 1988); Philip J. Schwarz, Slave Laws in Virginia (Athens, 1996); Betty Wood, "Until He Shall Be Dead, Dead, Dead: The Judicial Treatment of Slaves in Eighteenth-Century Georgia," Georgia Historical Quarterly 71, no. 3 (1987): 377-398; Alan D. Watson, "North Carolina Slave Courts, 1715-1785," North CaroUna Historical Review 60, no. 1 (1983): 24-36; Philip D. Morgan, Slave Counterpoint: Black Culture in the Eighteenth-Century Chesapeake and Lowcountry (Chapel Hill, 1998), pp. 394-88 and 468-73.

12. "Copy of the Record Book of the slave trials of St. Andrew Jamaica from 17 March 1746 to 16 Dec. 1782" enc. in Metcalfe to Russell No 51, 5 April 1840, P.R.O. CO 137/248.1 infer that the copy was made in 1834 from a note at the end stating that the first case recorded took place 88 years ago, and the last 52 years ago.

13. Of course, the sources from which historians have investigated these topics have generally not been trial records themselves, but depositions taken in advance of trials and judges* addresses to grand juries.

14. William Claypole, "Land Settlement on the Liguanea Plains, 1655-1700" (MA thesis, University of the West Indies, 1973). On Jamaican livestock farms see Verene Shepherd, "Alternative Husbandry: Slaves and Free Labourers on Livestock Farms in Jamaica in the Eighteenth and Nineteenth Centuries," Slavery and Abolition 14, no. 1 (1993): 41-66.

15. Richard B. Sheridan, Doctors and Slaves: A Medical and Demographic History of Slavery in the British West Indies, 1680-1834 (Cambridge, 1985), pp. 102-3. The figure of 300,00 is the number of slaves imported minus the total re-exported. Figures for St. Andrew are from Robert V. Wells, The Population of the British Cobnies in America Before 1776 (Princeton, 1975), p. 198. The white population of Jamaica was also failing to reproduce itself: see Trevor Bumard, "A Failed Settler Society: Marriage and Demographic Failure in Early Jamaica," Journal qf Social History 28, no. 1 (1994): 63-82. Burnard takes insufficient account ofthe fact that the white population's failure to self-reproduce was not only due to its failure to survive long enough to have children, but also because many ofthe children that white men did father were not considered white because their mothers were women of color.

16. 1696 slave code. The law stated that the "second offence" of willing or wanton killing would be "deemed Murder," and thus subject to the death penalty. This provision was unusual in British colonial slave societies, but I have found no evidence that it was ever used.

17. Richard S. Dunn, Sugar and Slaves: The Rise of the Planter Class in the English West Indies, 1624-1713 (New York, 1973), pp. 238-244; "An Act for the Better Ordering and Governing of Negro slaves," P.R.O. CO 139/1 (hereafter cited as 1664 slave code); 1696 slave code; "An Act for the more effectual punishing of Crimes committed by Slaves," 1717, P.R.O. CO 139/8.

18. 1664 slave code. This language was also used in the 1674 slave code, "An Act for the Better Ordering and Government of Slaves," P.R.O. CO 139/3.




19. Douglas Hall, ln Miserabk Slavery: Thomas Thistlewood in Jamaica, 1750-86 (London, 1989), p. 46.

20. Letter from a Merchant at Jamaica to a Member of Parliament in London touching the African Trade. To which is added, a speech made by a black ofGardaloupe [sic], at the Funeral ofa Fellow-Negro (London, 1709).

21. This practice was expanded and formalized with the establishment of parish workhouses in the late eighteenth century.

22. A full discussion of Jamaican criminal law can be found in Adolph Edwards, "The Development of Criminal Law in Jamaica up to 1900" (PhD Dissertation, University of London, 1968). See also Goveia, West Indian Slave Laws, pp. 19-35; Brathwaite, Development ofCreok Society, pp. 16-20, 292-3; Dunn, Sugar and Slaves, pp. 238-46; Edwin Horatio Watkins, "A History ofthe Legal System in Jamaica, 1661-1900" (PhD Dissertation, Sheffield University, 1968). The description ofthe procedures outlined here is based on these sources and the slave codes.

23. The summarizer of the St. Andrew document inconectly declared that "each case [was] adjudged by 5 justices of the peace." In fact, the details of the first case suggest that the law was being followed conectly. The court, it says, was made up of "two of his majesty's justices ofthe peace ... together with ... three freeholders ofthe said parish."

24. After the passage of the 1788 slave code, slaves were tried before a nine-man jury for felonies and before two magistrates for lesser crimes. The 1816 slave code increased the jury to twelve. There was still no provision for appeal. "An Act for the subsistence clothing and the better regulation and government of slaves for enlarging the powers of the council of protection for preventing the improper transfer of slaves and for other purposes," P.R.O. CO 139/62 (hereafter cited as 1816 slave code).

25. On Caribbean slave law see Dunn, Sugar and Slaves, pp. 238-46, and Goveia, West Indian Slave Laws. South Caroiina's 1690 slave code, which was also the model for Geor- gia's slave code and was somewhat modified in North Carolina, was based on the Barbados precedent. For an important study of North American slave law, which unfortunately pays no attention to Caribbean precedents, see Thomas D. Morcis, Southern Slavery and the Law, 1619-1860 (Chapel Hill, 1996). Alan Watson, Slave Law in the Americas (Athens, 1989) contains a succinct discussion of statutory slave law throughout the Americas, although it makes little attempt to analyze the way in which law was applied. Watson bases most of his discussion of slave law in the English colonies on South Caroiina's slave codes, but recognizes their Barbadian background.

26. Older comparative studies of slavery frequently placed great weight on the difference between English and Iberian slave law, and often concluded inconectly that slavery in Brazil and the Spanish colonies was mild. See in particular Frank Tannenbaum, Slave and Citizen: The Negro in the Americas (New York, 1947); Herbert S. Klein, Slavery in the Americas: A Comparative Study of Virgjmia and Cuba (Chicago, 1967). For a more convincing comparative view, see Robin Biackburn, The Making ofNew World Slavery: From the Baroque to the Modern 1492-1800 (London, 1997).

27. Douglas Hay, "Property, Authority, and the Criminal Law," in Douglas Hay, et al. Albion's Fatal Tree: Crime and Sockty in Eighteenth-Century England, (New York, 1975), pp. 17-63, quote on p. 27. Hay does not attend to the law's maintenance of gender hierarchy.

28. I have not attempted to analyze the cases by gender. Although it is clear that a large majority of defendants were male, too many ofthe names are either iilegible or not definiteiy male or female to make it worthwhile presenting quantitative information. Nor have I analyzed the cases by year or in terms of the numbers of defendants involved in each case, although such an anlysis could produce interesting results.




29. Hall, ln Miserable Slavery; Michael Craton and James Walvin, A Jamaican Plantation: The History of Worthy Park 1670-1970 (London and New York, 1970), p. 144.

30. The 1788 slave code introduced this distinction.

31. My emphasis. 1664,1674, and 1816 slave codes, and "An Act for Governing Slaves," P.R.O. CO 139/5, 1677. The penalty under the 1816 code was "death, transportation, hard labour for life or limited time or other punishment as the court directs."

32. Shelley A. M. Gavigan, "Petit Treason in Eighteenth Century England: Women's Inequality Before the Law," Canadian Journal of Women and the Law 3 (1989-1990): 335- 374; Morris, Southern Slavery and the Law, p. 265; Robert J. Steinfeld, The Invention of Free Labor: The Employment Relation in EngUsh and American Law and Culture, 1350-1870 (Chapel Hill, 1991), pp. 57-9.

33. On Tacky's Rebellion of 1760 see Michael Craton, Testing the Chains: Resistance to Slavery in the British West Indies (Ithaca, 1982), ch. 11. On the Westmoreland conspiracy see Edwards, "Development of Criminal Law," p. 265.

34. Patterson, Sociology of Slavery, p. 189.

35. Hall, ln Miserable Slavery, pp. 54-56. It is not clear why a guilty verdict could not be obtained on Thistlewood's evidence alone.

36. For evidence of this practice in nineteenth century Jamaican slave courts see the records ofthe St. George slave court, 1822-1831, Jamaica Archives 2/18/6.

37. Beattie, Crime and the Courts, table 8.3, p. 411. I have added guilty verdicts and partial verdicts, where the jury found the defendant guilty ofa lesser crime than s/he was charged with.

38. Goveia, Slave Society in the British Leeward Islands, p. 176.

39. Schwarz, Twice Condemned, p. 50; Michael Hindus, "Black Justice under White Law: Criminal Prosecutions of Blacks in Antebellum South Carolina," Journal of American History 63, no. 3 (1976): 588.

40. In addition the 1 arsonist was found not guilty, as were 2 of the 5 charged with obeah, 2 ofthe 4 charged with possessing weapons, and both those charged with violence against animals. Of the other crimes, significantly less than 40% were found not guilty.

41. Lazarus-Black, "Slaves, Masters, and Magistrates," p. 265.

42. David Barry Gaspar, " To Bring Their Offending Slaves to Justice': Compensation

and Slave Resistance in Antigua, 1669-1773," Caribbean Quarterly 30, nos. 3 and 4 (1984): 45-59. See also David Barry Gaspar, Bondmen and Rebels: A Study ofMaster- Slave Relations in Antigua: With ImpUcationsfor Colonial British America (Baltimore, 1985). Similar practices existed elsewhere in the British and French Caribbean, and in mainland North America, where the first compensation law was passed by Virginia in 1705. For details see Gaspar's article and Goveia, West Indian Slave Laws, pp. 22 and 36; Morris, Southern Slavery and the Law, pp. 253-6; Marvin L. Michael Kay and Lorin Lee Cary, " 'The Planters Suffer Little or Nothing': North Carolina Compensation for Executed Slaves, 1748-1772," Science and Society 40, no. 3 (1976-77): 288-306; Wood, Black Majority, pp. 280-281. The vestry records for St. Andrew, which would record payments of compensation, do not survive for this period. However, vestry records from other parishes, held in the Jamaica Archives, suggest that slaveholders usually but not always received the maximum valuation of ?40 for executed slaves.




43. Assembly committee report of 1739 and 1740 slave code both quoted in Edwards, "Development of Criminal Law," p. 136.

44. Morris, Southern Slavery and the Law, p. 250.

45. "An Act for Erecting and Appointing Common Gaols at the Town of Kingston in and for the County of Surrey and at the Town of Savannah La Mar for the county of Cornwall," P.R.O. CO 139/20.

46. Workhouses were required to advertise the runaway slaves they held in the Royal Gazette. A survey of all available editions found no advertisement placed by the St. Andrew workhouse before January 1799. The workhouse was probably established in 1798, but I was unable to find copies of the Royal Gazette for that year.

47. A. Roger Ekirch, Bound for America: The Transportation of British Convicts to the Cobnies, 1718-1775 (Oxford, 1987).

48. 1696 slave code. If the owner failed to transport the slave, that slave was to receive the death penalty.

49. For further discussion of the transportation of slaves see Diana Paton, " An Inju-

rious Population': Race and Slavery in the Transportation of West Indian Convicts," unpublished paper presented at the conference "Colonial Places, Convict Spaces: Penal Transportation in Global Context, c. 1600-1940," University of Leicester, December 1999.

50. John Langbein, Torture and the Law ofProof: Europe and England in the Ancien Regime (Chicago, 1977), pp. 39-43; Ekirch, Bound for America, pp. 70-86.

51. Jonathan Dalby, personal communication.

52. Pieter Spierenburg, The Spectacle of Suffering: Executions and the Evolution of Repres? sion (Cambridge, 1984).

53. Case of April 1774, in Assize Court, Suney, Pleas ofthe Crown, April 1770?July 1783, Jamaica Archives.


55. Beattie, Crime and the Courts, p. 462; Arthur N. Gilbert, "Military and Civilian Justice in Eighteenth-Century England: An Assessment," Journal of British Studies 17, no. 2 (1978): 51, shows that the average number of lashes in sentences for desertion in military courts was more than 600 throughout the eighteenth century, although many of these sentences were reduced to between 200 and 400 lashes by royal prerogative.

56. Beattie, Crime and the Courts, p. 463.

5 7. John Stewart, A View of the Past and Present State of the Island of Jamaica; with Remarks on the Moral and Physical Condition ofthe Slaves, and on the Abolition of Slavery in the Cobnies (Edinburgh, 1823), p.l 1.

58. See Craton, Testing the Chains: Resistance to Slavery in the British West Indies, pp. 213-14.


60. V A. C. Gatrell, The Hanging Tree: Execution and the English People, 1770-1868 (NewYork, 1994).




61. Gavigan, "Petit Treason"; Ruth Campbell, "Sentence of Death by Burning for Women," Journal of Legal History 5, no. 1 (1984): 44-59. Thanks to Doug Hay for these references.

62. For examples of the use of aggravated forms of the death penalty in other eighteenth- century British colonial slave societies see Wood, BlackMajority, p. 283; Gaspar, Bondmen and Rebels, pp. 22-35; Philip J. Schwarz, "Slaves and Capitai Punishment in Virginia," in Slave Laws in Virginia (Athens, Georgia, 1996), p. 72; Wood, "Until He Shall Be Dead," pp. 281-2

63. W. J. Gardner, A History of Jamaica from its Discovery by Christopher Columbus to the Year 1872; Including an Account of its Trade and Agriculture; Sketches of the Manners, Habits, and Customs ofall Classes ofits Inhabitants; and a Narrative ofthe Progress of Religion and Education in the Island. (London, 1971 [1873]), pp. 177-9, quote on p. 178.

64. Such instructions were only given from 1767 on, although it is possible that prior to this the public display of severed body parts was standard practice and thus did not have to be specifically ordered.

65. Pieter Spierenburg, "The Body and the State: Early Modern Europe," in The Oxford History ofthe Prison: The Practice of Punishment in Western Society, ed. Norval Monis and David J. Rothman (New York, 1995), p. 48.


67. Thomas D. Monis, "Slaves and the Rules of Evidence in Criminal Trials," Chicago- Kent Law Revkw 68, no. 3 (1993): 1216. This provision was also adopted by North Carolina. Watson, "North Carolina Slave Courts." Wood, Black Majority, p. 278, and Wood, "Until He Shall Be Dead," p. 389, show that similar practices also existed in South Carolina and Georgia.

68. Spierenburg, Spectack of Suffering, pp. 16-23.

69. On the role of the cotton tree in Jamaican obeah see Mervyn Aileyne, Roots of Jamaican Culture (London, 1988), p. 86; Richard D. E. Burton, Afro-Creok: Power, Op? position, and Play in the Caribbean (Ithaca, 1997), pp. 99-100; Robert J. Stewart, Religion and Society in Post-Emancipation Jamaka (Knoxville, 1992), pp. 140-142; Mary Turner, Slaves and Missionaries: The Disintegration of Jamaican Slave Society, 1787-1834 (Urbana, 1982), p. 56.

70. Trial notes from special slave court, St Dorothy 28 July 1831, enc. in Sligo to Glenelg No 315, 9 Feb. 1836, P.R.O. CO 137/209.

71. Creolization, along with the similar concepts metissage and hybridity have been of

major concern to recent students of colonial and post-colonial societies. In the Caribbean context important works include Brathwaite, Devebpment ofCreok Society, and Burton, Afro-Creok.

72. This paragraph is based on Gatrell, Hanging Tree; Spierenburg, Spectack of Suffering; Linebaugh, London Hanged; Louis P. Masur, Rites of Execution: Capitai Punishment and the

Transformation of American Culture, 1776-1865 (New York, 1989); Steven Wilf, "Imag? ining Justice: Aesthetics and Public Executions in Late Eighteenth-Century England," Yale Journal ofLaw and the Humanities 5, no. 1 (1993): 51-78; Randall McGowen, "The

Body and Punishment in Eighteenth-Century England," Journal of Modern History 59, no. 4 (1987): 651-79; Thomas W. Laqueur, "Crowds, Carnivals, and the English State in

English Executions, 1604-1868," in The First Modern Society: Essays in English History in Honour of Lawrence Stone, ed. A. L. Beier, David Cannadine, and James M. Rosenheim

(Cambridge, 1989), pp. 305-355.




73. Wilf, "Imagining Justice."

74. Viotti da Costa, Crowns ofGlory, pp. 242-3. Viotti da Costa notes the difference between the quiescence at the Demeraran rebels' executions and the executions of po? litical prisoners in England, where supporters came out to cheer. Her description of the rebels' execution suggests greater similarity with executions of non-political prisoners in England.

75. Hall, ln Miserable Slavery, p. 30.

76. John C. Edwards, "Slave Justice in Four Middle Georgia Counties," Georgia Historical Quarterly 57, no. 2( 1973): 265-73, quotes from pp. 267-8. See also Wood, Black Majority, pp. 283-4.

7 7. Viotti da Costa, Crowns of Glory, p. 231.

78. Case of April 1777, in Assize Court, Surrey, Pleas of the Crown, April 1770?July 1783, Jamaica Archives.

79. Beattie, Crime and the Courts pp. 461-9, quote on p. 469.

80. This was also true in Brazil, where slaves were publicly flogged in the central squares of towns. See illustration in Emilia Viotti da Costa, The Brazilian Empire: Myths and Histories (Chicago, 1985), p. 141; Mary C. Karasch, Slave Life in Rio de Janeiro, 1808- 1850 (Princeton, 1987), p. 123.



Documents

Punishment, Crime, and the Bodies of Slaves in Eighteenth-Century Jamaica