Practice:
Empirical Examples of Punishment
Locke makes a fundamental claim that all human beings are born equal. From this, he develops his ideas of punishment in the state of nature, in that all individuals are placed on a level playing field with regard to retribution for crimes against others. This universal view of equality, however, does not translate into case studies of real governments. It becomes blatantly clear that with regard to punishment, class standing and gender roles create distinctions in the handing down of sentences. Two examples will help illustrate the unsavory details of punishment in eighteenth century Britain.
Jamaican Slave Courts
An analysis of Jamaican slave courts by Diana Paton illustrates this dichotomy between the Lockean ideal of equality and the reality of punishment in Britain and its colonies. This writing analyzed documents from Jamaican slave courts in the eighteenth century to discover how slaves were punished relative to freeholders. Before even analyzing the data, the notion of equality is severely damaged. The necessity for different courts for different classes of people separates them from one another and opens the door for inequality.
This inequality was clearly the case for Jamaican slaves. The slave courts lacked a fundamental feature found in the freeholder courts: trial by jury. As Paton explains, "The symbolic importance placed on jury trial in the English legal tradition made slaveholders reluctant to allow it to be used to try slaves" (927-8). This reluctance stems from a desire to maintain the hierarchical structure of the slave labor societies. In doing so, it also eliminates the equality of humans in a punishment system.
The system also affirmed the lack of separation between the social interworking of the colonial society and the punitive structure. The slave courts, as Paton notes, were "aimed at convincing slaveholders themselves of the legitimacy of their power as much as it was directed towards their slaves" (936). Because the slaveholders participated in the punishment, they were in relation to the slaves both in a higher social class and in a position of political power.
The Jamaican case also illustrates the social stratification within British society. Paton explains that "Convicts in English courts and Jamaican slave courts, although not free convicts in Jamaica, might be punished with transportation" (936). This indicates that not only were there differences in punishment between free people and slaves, but there were differences between free people in England and free people in Jamaica. This affirms the notion of a punitive hierarchy, and thus provides an empirical critique to Locke's ideal punishment.
Execution of a Woman
By the late eighteenth and early nineteenth century, the tone in the British Parliament had been one of reducing the use of the death penalty. As an 1829 account from the London Sun indicates, the use of the death penalty as a means of punishment was still both used and approved of by popular sentiment. The article relays the events surrounding the execution of Esther Hibner, a 61 year-old woman accused of murdering a young girl through malnourishment. As a gauge of popular views, this article indicates that punishment like this was used as a spectacle. The introduction notes that she was executed "amidst the cheers and yells of an immense number of spectators." The punishment did not serve to seek retribution for wrongdoing, as Locke would see as its purpose. Instead, the execution served as entertainment rather than as a deterrent. The flowing description of the event of her execution shifts the focus away from the crime and onto the punishment, illustrating the popular role of punishment and, like the example of the Jamaican slave courts, shows that the ideal view of punishment is not the empirical one.
Next: Conclusion
Click for larger image
