Taxonomy and Jurisdiction

In 1703, Adam Latham, a laborer, and Joan Mills, wife to another laborer, were brought before the county court in Kent County, Delaware, charged with fornication and adultery. For punishment, Joan Mills was publicly whipped, twenty-one lashes on her bare back well applied, and sentenced to one year in prison at hard labor. Adam Latham was sentenced to twenty lashes. This was not the first time the two had gotten into trouble. Adam, indeed, had been charged once before with the same crime, "the Sin of Incontinency and fornication," but he had been acquitted then, the court having ordered him only to post bond guaranteeing good behavior. Now that he had broken his word, he had to endure not only physical punishment but

also the public disgrace of "wear[ing] a Roman T on his left arme on the Outside of his uppermost garment . . . for the space of six months next."^[23]

As a forerunner of Hester Prynne, and a male one to boot, Adam Latham perhaps has some claim to our attention, although we should also note that his ordeal was in no way out of the ordinary. Indeed, for all its colorful pathos, the trial of this unfortunate but apparently unpenitent couple turned out to be common enough, quite unremarkable really, as trials of this type were very familiar sights in the colonial courtroom. In the seventeenth and eighteenth centuries, offenses against morality (which meant sexual offenses, for the most part) were classified as criminal offenses; they came under the jurisdiction of penal statutes and were routinely prosecuted. In eighteenth-century Pennsylvania, the penalty for the third adultery conviction was twenty-one lashes, seven years in jail, and marking with an "A" on the forehead.^[24] Even harsher measures prevailed elsewhere. The Massachusetts Code of 1648 made adultery a capital offense.^[25] The Duke's Laws of 1665 in New York had a similar provision.^[26] The death sentence was in fact rarely invoked—the harsh penalty being a matter of some dispute—but lesser punishments such as whipping, forfeiture, fines, and imprisonment were standard measures, because according to the legal thinking of the seventeenth and eighteenth centuries, sexual offenses were not only morally transgressive but also criminally sanctionable.^[27] William Nelson, studying court records in colonial Massachusetts, reports that between 1760 and 1774, a total of 2,784 prosecutions came before the Superior and General Sessions Courts and that, among these, 1074 were for sexual misconduct (the bulk of which being fornication). In other words, offenses against morality accounted for as much as 38 percent of all prosecutions and made up the single largest category of crime.^[28] This astonishing fact had something to do no doubt with the proverbial zealotry of the Massachusetts Bay Colony, but as we can see in the trial and tribulation of Adam Latham and Joan Mills, even in Delaware (as well as in New York, Pennsylvania, Maryland, and Virginia), crimes against morality were arraigned in the courtroom no less than in the pulpit. At once reprehensible and indictable, they were subject not only to divine retribution but also to criminal prosecution.^[29]

The lack of separation here between morality and legality, or, as was more often the case, between immorality and criminality, points

to a judicial universe recognizably different from our own. What has transpired, in the three hundred and fifty years separating us from colonial America, is nothing less than a transformation of the criminal law, a transformation reflected not merely in its stipulated contents but more fundamentally in its range of enforceable meanings, in its designated sphere of operation, and in its infrastructural relation to other vehicles of justice. That transformation changes the way "crime" itself is defined. What counts as a crime, what suffices as punishment, who is charged with its administration, and how that specific penalty must accord with the general prohibition—these taxonomic and jurisdictional changes are the very ground upon which the criminal law might be said to have a history.

Writing about a comparable shift in taxonomy and jurisdiction in seventeenth-century English law, Christopher Hill has described the abolition of church courts as an "intellectual and moral revolution." What ensued, according to him, was a growing wariness about the question of boundaries: a growing separation between legal and ecclesiastical discipline and a growing distinction between sin and crime.^[30] Hill's focus here on the question of boundaries—on the shifting lines of demarcation between adjacent jurisdictions and between categories of offense—seems to me crucial in any historical theorizations about the law: about the shape it comes to take, the sphere it comes to occupy, and the neighboring institutions it comes to adjoin within a social order. Following his lead, we too might want to direct our focus not on the legal domain as it is presently composed but on the shifting contours of its composition: on the fit (or the lack of fit) between categories of the law and categories of ethical judgment. Between the reprehensible and the prosecutable, between what is condemned as sin and what is punished as crime, there is a margin of discrepancy, historically variable and historically significant.^[31] The history of such variations casts light not only on the law itself, on its functions and limits at any particular moment, but also on the particular social structure which gives rise to such functions and such limits.

Indeed, what we witness in the colonial courtroom is precisely the absence (or at least the minimal presence) of such a margin of discrepancy. Sin and crime were more or less synonymous in colonial America, synonymous and coextensive. Because sin was readily translatable into and enforceable as crime, the problem of jurisdictional boundaries was neither very acute nor even very meaningful. Thus,

when the Massachusetts law of 1665 referred to fornication as "a particular Crime, a shameful Sin, much increasing amongst us,"^[32] the apposition of the two words—"Sin" and "Crime"—revealed no uneasiness, no sense of possible disharmony, but rather the assurance of a clear connection, so clear that it seemed not a connection at all, but simply the reiteration of the selfsame term.

By contrast, the modernity and liberalness of our own legal culture would seem to reside in the collapse of that assurance. The identity of sin and crime, so calmly assumed by the Massachusetts lawmakers of 1665, is now a subject that inspires anything but calmness. Especially in the context of homosexual practices, tempers have flared up on just this point. "What is the connexion between crime and sin and to what extent, if at all, should the criminal law of England concern itself with the enforcement of morals and punish sin or immorality as such?"^[33] This was the question put forth by Lord Devlin, a distinguished writer on criminal law and a leading protagonist in the contemporary debate about law and morals. The question was loaded, for its occasion was the controversial appearance of the 1957 Report by the Committee on Homosexual Offenses and Prostitution (commonly known as the Wolfenden Report ), which in no uncertain language had denounced any attempt "to equate the sphere of crime with that of sin." "There must be a realm of morality and immorality," the report said, a realm "which is, in brief and crude terms, not the law's business."^[34] Lord Devlin disagreed. He strongly objected to the report's separation of "crime and sin, the divine law from the secular, and the moral from the criminal." For him, "the criminal law [must] overlap the moral law," because the two "happen to cover the same area."^[35]

Devlin's legal and moral geography has not gone unchallenged. Indeed, on this point he has come under fire from some formidable critics, including H.L.A. Hart and Ronald Dworkin.^[36] Behind these critics stands the venerable tradition of analytical jurisprudence—from Jeremy Bentham to John Stuart Mill to John Austin—a tradition whose central tenet (in the words of Austin) is that "the tendency to confound law and morals is one of the most prolific sources of jargon, darkness and perplexity."^[37] The determination not to succumb to such jargon, darkness, and perplexity was one of the impulses behind legal change in the nineteenth century, and by and large it was an impulse that prevailed. By the time Oliver Wendell Holmes set out, in his celebrated 1897 essay "The Path of the Law," to "dispel a con-

fusion between morality and law," he was speaking from a mainstream position. "The law is full of phraseology drawn from morals," Holmes said, and "continually invites us to pass from one domain to the other." He wished that "every word of moral significance could be banished from the law altogether," so that we might "rid ourselves of an unnecessary confusion." Conceding that there might be "some plausibility to the proposition that the law, if not a part of morality, is limited by it," he insisted nonetheless that "this limit of power is not coextensive with any system of morals."^[38]

And indeed, in the course of the nineteenth century, the coextension of law and morality—and the coincidence of sin and crime—was effectively brought to an end. Criminal prosecutions for moral offenses declined sharply after the Revolution—to an average of eleven cases per year between 1786 and 1790 and to fewer than five cases per year in the four decades thereafter.^[39] The moral domain, it would seem, was quietly slipping out from under the law's jurisdiction, now increasingly construed as a limited arena. It is a telling sign that during this period the law was frequently described as a bounded enclosure, as a "sphere," a "realm," an "area," or a "province," the last word figuring conspicuously, for example, in the title of John Austin's influential lectures, The Province of Jurisdiction Determined (1832). The law was spatialized in the nineteenth century; it had a specific locale and a specific set of boundaries. Henceforth its sphere of operation was to be narrow, precise, sharply delimited. Its enforceable meanings were to be "compressed to the smallest possible compass [its] language would bear."^[40] Against this background—against this contraction in semantics as well as in applicability—it is not surprising that in his celebrated essay Oliver Wendell Holmes should choose the word "path" to characterize the legal domain, for narrowness and linearity were indeed the defining attributes of "the law [taken] as a business with well understood limits, a body of dogma enclosed within definite lines."^[41]