‘Thomas Jefferson’ by N. C. Wyeth
“Ideas of justice are as timeless as fashions in hats,” the philosopher John Gray writes. Consider a bill submitted to the Virginia Assembly in 1779, proposing some liberal reforms to colonial laws: Bill 64, “A Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital,” penned in Thomas Jefferson’s own hand. Seeking to make murder and treason the only capital crimes, it was progressive legislation for its day. Bill 64, a product of two years’ deliberation by the Committee of Revisors, grouped rape, polygamy and sodomy together, and prescribed the same punishment for each:
Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting thro’ the cartilage of her nose a hole of one half inch diameter at the least.
The bill’s extensive footnotes review legal authorities from antiquity through the 18th century on criminal law’s greatest hits, such as arson, robbery, counterfeiting, manslaughter, murder and treason, along with some old standards known to very few of today’s felons, like asportation of vessels and horse stealing. When it comes to the rationale for drilling holes in women’s noses, the footnotes are silent, but there is a lengthy disquisition on buggery. Properly considered, Jefferson writes, buggery subsumes two distinct crimes: buggery of people and buggery of animals, the first of which is a serious transgression, the second a hilarious indiscretion.
Buggery is twofold. 1. with mankind, 2. with beasts. Buggery is the Genus, of which Sodomy and Bestiality are the species. 12.Co.37. says ‘note that Sodomy is with mankind.’ But Finch’s L.B.3.c.24. ‘Sodomitry is a carnal copulation against nature, to wit, of man or woman in the same sex, or of either of them with beasts.’ 12.Co.36. says ‘it appears by the antient authorities of the law that this was felony.’ Yet the 25.H.8. declares it felony, as if supposed not to be so. Britton c.9. says that Sodomites are to be burnt. […] The Mirror makes it treason. Bestiality can never make any progress; it cannot therefore be injurious to society in any great degree, which is the true measure of criminality in foro civili, and will ever be properly and severely punished by universal derision. It may therefore be omitted. It was antiently punished with death as it has been latterly. Ll.Aelfrid.31. and 25H.8.c.6. See Beccaria §.31. Montesq.
Jefferson wrote Madison that the bill’s punishment for rape was a hard sell in the Virginia Assembly, where his colleagues found it “indecent and unjustifiable.” He also would support changing the punishment for rape, but only because, as written, “women would be under [the temptation] to make it the instrument of vengeance against an inconstant lover, and of disappointment to a rival.” I think both reasons amount to anxiety about what women might do with the power to hand out gonadectomies like jaywalking tickets, a development that certainly would have made high school U.S. history textbooks more interesting.
None of these considerations seems to have affected the fate of Bill 64. When it was defeated in 1787, Madison attributed its failure not to the brutal penalties for sex crimes, but to the current “rage against Horse stealers,” who would have faced hard labor rather than the gallows under its permissive code.
Laws come and go; below, Charles Manson dispenses timeless wisdom in his song “Don’t Do Anything Illegal.”