Public secrets: sodomy and the pillory in the eighteenth century and beyond

The following is an extract from an academic treatise by Jody Greene:


On 11 April 1780, Edmund Burke stood up without notice in the English parliament and gave what might just have been the most unexpected speech of his political career. The topic of Burke's impromptu rant was a "melancholy circumstance" he had stumbled upon in the newspapers that morning. The report detailed the death the day before of a man sentenced to stand in the pillory on Saint Margaret's Hill. The man--along with a codefendant who was also grievously injured--had been forced to submit to the punishment after being convicted of a crime, as Burke put it, "such as could scarcely be mentioned, much less defended or extenuated. The commission of sodomitical practices". Burke subsequently elaborated upon the indefensible nature of sodomy, describing it as "a crime of all others the most detestable, because it tend[s] to vitiate the morals of the whole community". Despite his disgust at the crime, however, and his reluctance even to mention it, Burke felt compelled to call the attention of his colleagues to the plight of the "poor wretch" who had died, and above all to the circumstances surrounding his unfortunate demise (388). Further overcoming his repugnance at the offence, Burke did not hesitate in his speech to condemn the punishment, or at the very least the outcome of that punishment, in the most uncompromising terms: the death of this man, he concluded, should be treated, and thus prosecuted, as a murder.

The case to which Burke alluded involved two men, a coachman named William Smith and a plasterer named Theodosius Read, convicted not of sodomy per se--a capital offense for which they would both have been hanged--but of the lesser crime of attempted sodomy (also sometimes known as sodomitical assault). Well in advance of the hour set for the punishment, a crowd had gathered near the site of the pillory, as was usual in such cases, armed with projectiles including dead dogs and cats, as well as stones. There is no question that both Read and Smith suffered mightily and even risked their lives at the hands of this crowd, who, according to Burke, "attacked [Smith], and his fellow criminal with great fury". In this case, however, there seems to have been a further mortal danger attached to the punishment: Smith was unusually short of stature, and, Burke claimed, this fact led to his rather gruesome death. Unable to reach the holes made for his head and arms, Smith "hung rather than walked as the pillory turned round", falling dead from the contraption at the end of the hour; having, ironically, been hanged after all. Burke's ultimate contention that the officers of the law ought to be held responsible for Smith's death is based on his conviction that they should have intervened when they became aware of his inability to stand in the pillory unassisted. To this end, Burke makes a point of retelling one particularly morbid detail from the newspaper account. While being dragged around by the "instrument," as Burke calls it, choosing a term which still, in 1780, would have carried connotations of torture, Smith "grew black in the face, and the blood forced itself out of his nostrils, his eyes, and his ears". The officers who stood by and watched this happen, he concluded, whether they did so through "neglect, or cruelty," should themselves be subjected to legal proceedings, along with anyone else involved in doing harm to the two convicts.

In a telling inconsistency, however, not all of the surviving accounts of that unfortunate day concur either on the events themselves or on the question of who should be held accountable. In particular, no other version attributes Smith's death so assuredly to the natural misfortune of his stature--and thus, by extension, to the negligence of the officers overseeing his placement in the pillory. In a story in the Daily Advertiser, for instance, Smith's death has nothing to do with the device at all, having been caused directly by the actions of a bystander: "some Person threw a Stone, and hit the Coachman [Smith] on the forehead, and he immediately dropped to his Knees, and was to all Appearance dead." The casual dismissal of specific agency--"some Person threw a Stone"--and the uncomplicated narrative of events suggest that there is no room, and no need, for further investigation. Certainly, the moral and legal consequences set in motion by Burke's designation of the act as a murder are entirely absent here. As a jailer nonchalantly told a convicted sodomite in 1813, upon the man's return relatively unscathed from his stint in the pillory, "it was not intended that you should have come back alive." It was apparently not intended, at least according to the Daily Advertiser, that Smith should have come back alive, either.

The Morning Post offers still another narrative of the events, one so absurd and darkly comical that one suspects its authors recognized and even intended its falsehood to be transparent. With an introductory gesture designed to banish any liability on the part of the authorities, followed by a grudging recognition of at least some role played by the mob, the passage astonishingly concludes by determining Smith's death to have been--however improbably--a suicide:

[Smith and Read] were escorted from the New Jail at ten o'clock, in a very private manner, in a hackney coach, to prevent the rage of the mob, and locked up in the bail-dock belonging to the sessions-house till the time aforesaid [11:45 A.M.]. The under sherrifs, with their officers, and a very great number of constables attended, notwithstanding which they were very severely treated by the populace. When they had stood about half an hour, the coachman sunk down, and endeavoured to strangle himself, in which position he remained till he appeared black in the face, the blood gushing from his ears, when he was taken out, and laid on the pillory. When Smith the coachman was brought back to the New Gaol, a surgeon was sent for, who bled him, but he was quite dead; Reed [sic], the plaisterer, was so severely treated, that it is doubted whether he will recover.

From the very first sentence, this narrative, unlike the previous one, watches its words, keenly aware that questions of liability are at stake. For instance, the passage opens with the bizarre claim that Smith and Read were conducted "in a very private manner" to this most public of punishments. The phrase is clearly designed to emphasize the forethought that went into protecting the two criminals, and to ward off accusations that they were intentionally turned over to the vengeance of the assembled crowd. The sheer number of attending officers is, of course, duly noted, but, more subtly, the account wavers later in the same sentence over the question of who, exactly, was "severely treated by the populace": the constables or the sodomites? Passing quickly over the outrageous claim that Smith--whose hands, we remember, were trapped in the pillory--actually "endeavoured to strangle" himself, we find again the detail about the blood gushing from his ears--a detail that this time serves to emphasize not the barbarity of the device and those who watch over it, but the violence of Smith himself, his capacity deliberately to do himself harm. Here, finally, rather than "dropp[ing] to his Knees" and keeling over dead on the platform, as in the Daily Advertiser account, Smith is painstakingly "laid out," and provided immediately with advanced medical attention in the form of a surgeon. The passage concludes with a gesture of narrative handwringing, in its sad but certain assumption that Read, too, will shortly die. It is not easy to forget, however, that this same gesture simultaneously forecasts the demise of a man who could be construed, among other things, as the most important surviving witness to the events of 10 April, 1780. With Read out of the picture, the authorities will be able to maintain that notwithstanding the unfortunate actions of the uncontrollable mob (against whom the police had taken elaborate precautions), and notwithstanding Smith's unanticipated self-destructive tendencies (for how could the officers of the court have known that he would use the occasion of his punishment to commit such a dramatic act of self-violence?), the death of the two men was something that could have been neither foreseen nor avoided. A melancholy outcome, certainly, but not a criminal one.

I recount these competing versions of Smith's death--or murder, if you prefer--in order to begin to suggest some of the instabilities surrounding the use of the pillory as a punishment in the late eighteenth century--and especially as a punishment for sodomy. On the basis of the death of Coachman Smith at the hands of an angry mob and a negligent police force, Burke concluded that the pillory no longer had any claim to legitimacy as a punishment, for sodomy or anything else. At the end of his speech of 11 April, in a suggestive instance of rhetorical slippage, he called on the House to "abolish the punishment of the pillory, since it was liable to such violent perversion". For others, however, like the anonymous author of the Daily Advertiser account or the jailer in 1813, what happened to Smith was the logical--even the proper--outcome. As an astonished commentator in The Morning Post put it on 13 April, in response to news of Burke's impassioned speech.

Two men, for a crime shocking to human nature, are by the lenity--the too great lenity of the legislature, to be slightly punished by only exposing them to shame. The populace, fired at the guilt--and roused with indignation at the defect in the law, take an executive part in the punishment which natural justice requires. Every man applauds the spirit of the spectators, and every woman thinks their conduct right. It remained only for the patriotic Mr. Burke to insinuate that the crime these men committed should not be held in the highest detestation, and that it deserved a milder chastisement than ignominious death. We therefore see him come forward as the advocate of the guilty, displaying his talents to obtain mercy for sodomites!

On this commentator, the niceties of evidence associated with the prosecution of sodomy as opposed to attempted sodomy are entirely lost. A capital offense, sex between men should be punishable by death--ignominious death, to be precise--regardless of the exact details of the sexual encounter. The nature of the pillory's punitive capacities is here both defined and dismissed as "only exposing [sodomites] to shame." According to the laws of "natural justice," however, shame is simply not punishment enough for a sodomite of any stripe. Nothing short of execution will do.

Despite their obvious differences, however, Burke and his antagonist are in unlikely agreement here about at least one thing: the law is perverted and defective in its current strategies for dealing with those who commit sodomitical offenses. In addition, they agree that the pillory is a dubious and perhaps even dangerous choice as a punishment for such offenders. Finally, they actually agree in remarkably precise terms on the nature of the pillory, which Burke, too, defines in terms of its capacity for shaming. It is, he says, or rather ought to be, "a punishment of shame rather than of personal severity". He defines it again shortly afterwards as an "instrument of reproach and shame". Beyond their all too obvious differences, then, these men actually concur on a number of key points: on the intended use and function of the pillory, on the pillory's failure as a punishment for sodomy, and, perhaps most importantly, on the defective nature of the current English law for dealing with sodomitical offenders. I want to pause over these notable points of convergence, in order to explore why the pillory persisted as a punishment for sodomy throughout the eighteenth century, despite what had, for nearly a century, been widespread agreement concerning its ineffectiveness for crimes of this nature.

The use of the pillory to punish sodomitical offenses was part of a wider system of public punishment in England that began in the Middle Ages and was only just beginning systematically to be questioned. These punishments, which included whipping, branding, and the pillory or stocks, were all generally administered in front of an assembled crowd, and all relied wholly or in part upon a notion of shame as a mode of both punishment and deterrence. The stated purpose of such punishments, delivered for attempted as well as small-scale crimes against property or persons, was twofold: to discourage the perpetrator from straying again, and to alert the community about the existence of a potential offender in its midst. In addition, non-capital punishments kept the state from making itself excessively unpopular by killing too many of its own citizens. Finally, as critics from Sigmund Freud to Rene Girard have shown, such punishments made the community complicit in the workings of the law and the state, displaying consent to a wide range of social and moral boundaries and making community members less likely to become offenders themselves.

For most misdemeanors punished by such public displays, the exhibition of the criminal and the advertisement of his or her crimes did not seem to provoke fears of spectatorial mimesis. With sodomy, however, the case was rather different. Sodomy posed a problem, a problem already evident in Burke s speech, in his allusion to the crime of Read and Smith as one "such as could scarcely be mentioned." If sodomy is a crime not fit to be mentioned, how can the state collude in making that same crime visible, in advertising its existence for the entire populace, by putting perpetrators on public display? If the mere naming of sodomy is not merely indelicate but positively dangerous, is it not more dangerous to draw attention to the crime, to educate the populace about both its existence and the details of its commission, by involving them in the punishment of each and every sodomitical offense? The logic of the English penal code--and European penal codes more generally--required that petty offenders be subjected to forms of punishment carried out by members of the local community, especially in the case of sodomy, which, as Burke so concisely put it, was believed to "vitiate the morals of the whole community." Yet precisely because of this perceived ability to spread and potentially infect the population at large, sodomy was a crime that all authorities agreed was better kept secret from the collectivity. This essay offers an opportunity to explore this apparent contradiction in the legal system--a contradiction that, though occasionally comical, nonetheless had dire consequences for the lives of numerous men, and some women as well, throughout the eighteenth century. Contemporaries did not fail to notice the competing demands of the legal discourse surrounding sodomy, which required both that such crimes be kept secret and that they be denounced as publicly as possible. In fact, a lively debate occurred not merely in England but all over Europe over the course of the century concerning the appropriate means of punishing those convicted of sodomitical offenses, in light of these competing demands. In what follows, I rehearse these debates about secrecy and publicity in the punishment of sodomy, as a small contribution to the history of the regulation of sodomy, and hence of sexuality more generally, in the early modern period.

Yet my reasons for returning to this moment and this place in the history of sexuality are not limited to the otherwise sincere desire to understand something about eighteenth-century English legal and cultural history. I am hardly the first to notice that the contradiction I describe as characteristic of that time and place--the requirement at once to keep same-sex sexual practices secret and to make them public--is one that continues to haunt both the cultural understanding of (homo)sexuality and its legal regulation. As commentators such as David Miller, Eve Sedgwick, Lauren Berlant, and Michael Warner have most influentially shown, the structure of the open secret and the paradox of public sex are ubiquitous features of the history of sexuality in the West. This essay begins from the conviction, first, that in order to understand the comparatively tacit regimes that regulate sexuality in our own times, at least in the United States and Western Europe, we do well to study the explicit regulatory practices of the past; and second, that whatever role secrecy played in those earlier practices has only become more pronounced as punitive regimes have been replaced by more subtle forms of social control. As intractable and impenetrable as the enduring features of modern and post-modern sexuality may seem, it might at least be fruitful to recognize that they have a history, a long history, but so too, perhaps, a teleology as well. Certainly, as Karma Lochrie makes clear in the epigraph to this essay, if we are to understand contemporary sexual categories and their use in the regulation of subjects--subjects like ourselves--our first step must be "to listen rather than to collaborate" in the attempt to naturalize and dehistoricize those categories. This essay is an attempt to initiate such a project of listening, in the full knowledge that what is heard may be incoherent, but that in that incoherence lies some clue not only to our past, but to our present as well.

A short history of the pillory

People are not very willing to ask a man to their tables who has stood in the pillory.--Samuel Johnson

John Beattie, in his comprehensive study, Crime and the Courts in England, 1660-1800, describes the pillory as "the punishment that might stand as a paradigm of the old penal order." Notwithstanding this ultimately convincing claim, however, Beattie devotes only about seven pages in his 600-page study to the pillory, in a pattern followed by other historians of the early modern penal code. These historians, pausing only briefly to discuss lesser sanctions, instead concentrate the majority of their attention on the most spectacular of eighteenth-century punishments, the death penalty. In addition, much scholarly energy has been devoted to two other topics of great importance to penal history that had their origins in this period: the rise of transportation, officially made available in 1615, but rarely used before the Transportation Act of 1718, and, above all, the development of the prison as the premier mode of punishment for criminal offenses, starting in the last quarter of the eighteenth century. Despite these trends in critical attention, however, it is still possible to piece together from the available record a short history of the pillory, along with other examples of what are generally known as public punishments. Through the exploration of such punishments, the outlines of the old order to which Beattie refers become clear, making it possible to see why the pillory should, notwithstanding its neglected status, constitute that order's most representative punishment. In addition, a study of this and other public punishments makes it possible to understand why, against all odds, the pillory should have been selected as the preferred (though problematic) punishment for non-capital cases of sodomy.

In an overview of the early modern penal code in England, France, Germany, and the Netherlands, Peter Spierenburg notes that virtually all noncapital punishments in the seventeenth and early eighteenth centuries entailed either bodily pain or public humiliation. Many, like whipping and branding, involved both. (16) Historians, following Michel Foucault, have focused a great deal of attention on the role of pain in these early modern penalties, and on determining the meaning of pain's subsequent eclipse in the era of the prison. Yet Spierenburg cautions that public humiliation is at least as characteristic of early European penal codes as pain, and possibly more so. While the spectacular dimensions of execution have been amply described elsewhere, he notes that "noncapital physical punishments...were usually dispensed in public, giving them a theatrical character" as well. Perhaps more notably, some punishments, which he calls "nonphysical, public sanctions," appeared to depend entirely upon the element of public humiliation, having no apparent physical dimension at all. Most common among these shaming punishments, at least for men, was the pillory.

We know already from the case of Smith and Read that the pillory could and often did expose offenders to physical pain or death at the hands of spectators. We know, too, that some observers considered such violence a premeditated, necessary, and legitimate component of the punishment. Legal authorities of the period were nonetheless notably cagey on the topic of the exact nature of the pillory, and on the role of violence in its intended functioning. Blackstone in 1769 includes it in a list of punishments "that consist principally in their ignominy, though most of them are mixed with some degree of corporal pain." His list groups together "whipping, hard labour in the house of correction, the pillory, the stocks, and the ducking-stool," without specifying which of these involve corporal pain, and which do not. Two years later, in 1771, William Eden's Principles of Penal Law places the pillory at least implicitly in a motley selection of humiliations that includes "degradations from titles of honour, civil incapacities, brandings, and public exhibitions of the offender." It is suggestive that public exhibition is here separated from patently painless punishments by the physical expedient of branding. It remains unclear from Eden's selection whether or not we are to conclude that punishments like the pillory are supposed to share branding's physical dimension.

The hesitation around the exact corporal nature of the pillory was without question a productive one, allowing those responsible for deciding sentences some leeway within the general category of public exposure to punish the offender more or less severely. By sentencing criminals to be exhibited on market days, in a central location, with advance notice to the populace, and with a limited number of attending officers, judges could virtually assure that the prisoner would meet with a great deal of antagonism from an organized mob. Approaching any one dimension of the sentence differently--choosing a less central location, for example, or providing a larger contingent of police and other authorities--could result in an easier sentence. In addition, in an era in which penal policy was becoming a topic of heated debate, the flexibility of the pillory allowed the authorities and the public to express their discontent with available penal options. As J. S. Cockburn puts it, in an article on changing standards of violence associated with eighteenth-century punishments, "there was a strong feeling in some quarters that mob action supplied inadequacies in the common law." This consensus regarding legal "inadequacies" was particularly notable, as we have already seen, in cases involving same-sex sexual offenses, almost invariably leading to outbreaks of sometimes fatal violence when those convicted of such crimes were made to stand in the pillory. Despite these differential corporal elements, however, and despite the fact that all stints in the pillory must have included at least some level of physical discomfort, the primary purpose of the punishment remained, in Burke's terminology, "shame and reproach." The severity of the punishment--and it was widely feared throughout the eighteenth century--stemmed at least as much from its capacity for humiliation as from the added risk of injury. Moreover, while the pain associated with the punishment eventually passed, to stand in the pillory was only the beginning of what was almost certainly, for most offenders, a life sentence of ongoing personal humiliation.

Beattie is perhaps the clearest of all historians writing on the pillory in his ability to isolate the shaming dimensions of the punishment from its more capricious physical elements. He begins his section on the pillory thus:

Another punishment that sought even more directly [than whipping] to stigmatize and dishonor and to mark out an offender as unworthy of trust or respect was the pillory, in which the prisoner was made to undergo a form of public penance by being exhibited on a platform with his hands and head fixed in a wooden structure.... The point of punishment by public exposure was in those cases not only to chastise the offender and deter him and others from such behavior in the future, but also quite simply to make his identity known so as to forewarn potential victims.

The primary purpose of the pillory was to dishonor the perpetrator, both at the time of his or her punishment and in the future. Without the added physical dimensions associated with public whipping or branding, the pillory promised a kind of pure humiliation, and thereby exhibited the extraordinary power of shame as a penal weapon, as well as its fundamental role in the early modern judicial order. Corporal punishments were rendered more severe by being carried out in public, but the severity of the pillory, at least as Beatrie describes it, stemmed entirely from its publicity. Thus, in contrast to Spierenburg, who dubs the death sentence "the most theatrical of public punishments," we might conclude that the pillory, in fact, deserves that title, given its purely spectacular force.

The variety of offenses punishable by the pillory was closely connected with its capacity for humiliation. While the pillory might be used as a punishment for almost any attempted crime, its use in property violations was infrequent. Most often, it was used to punish two somewhat more slippery categories of offenses. On the one hand, it was associated with crimes that were especially difficult to prevent and tended to be repeated--most notably, sexual crimes such as sodomy, adultery, and the attempted rape of children. On the other (though the two categories clearly overlap in some cases), the pillory was popular for crimes that were more offensive to community moral norms than they were actually dangerous, offenses summarized by one historian as, "hoarding, speculation, dishonest shopkeeping, cheating at cards, pretended fortune-telling, and all minor forms of confidence-trickery." From time to time, the pillory was also used to punish crimes of speech or writing against the state--crimes such as sedition or libel. However, the authorities had to be extremely careful in such cases that the crowd did not sympathize more with the offender than with the officers of justice, as happened in the case of Daniel Defoe, who was pelted with flowers when he stood in the pillory for publishing his satirical tract, The Shortest Way With the Dissenters, in 1703. For the most part, the authorities turned to the pillory only in cases where they believed they could rely completely on the community's cooperation with the system of social and moral norms on which this branch of the penal system relied. If the authorities were going to use public shaming as an exclusive mode of punishment, they needed to be relatively sure that the public would step up to play their part in the theater of justice.

The participation of the community in the punishment of the pillory is, along with its purported lack of a physical component, its most distinctive feature. While the public might be called upon to witness or simply provide an audience for executions and brandings, their participation was always, in some sense, supplementary. Without the community, the pillory as a punishment could not have existed at all. As Beattie puts it, in a passage that summarizes the entire system of which the pillory was a representative part.

The pillory reveals in their clearest form the attitudes and assumptions that much of the broader penal practice of 1660 rested on. Public punishments ... were at least in the part moral-degradation ceremonies in which the crowd that watched played an important part. They were engaged in a renewal of community values by their recognition and disapproval of the deviant act committed by the offender on display. His exposure and punishment were intended to discourage him and others from committing other offenses. And beyond that, public punishment performed the wider function of reaffirming the moral boundaries of society.

It is in the sense here outlined by Beattie, I think, that the pillory can be described as the punishment most characteristic of the older penal order--a penal order that did not yet consider the most appropriate punishment for the vast majority of crimes to be seclusion from the rest of the community in a system organized around the prison, or, even before that, around transportation to a penal colony. Public punishment, even more than physical punishment, disgusts modern western sensibilities. In the early modern period, however, it was considered the only appropriate means not only of punishing offenders, but of ensuring consent among the broader population to social as well as legal norms. As Greg Smith puts it, for many eighteenth-century English observers, "the pillory was the ideal form of popular, retributive justice."

The pillory was not without its critics, however, even in the period described by Beattie, immediately following the civil war. Just over a century later, criticism had grown so much that Burke could suggest on the floor of the Commons that its use should simply be outlawed altogether. The main arguments against the device fell into three groups. Most common were complaints like those advanced by Burke, that the pillory simply offered too much scope for unsanctioned violence and even death. By rendering the intentions of the sentencing judge imprecise--and, on some occasions, by allowing those intentions to be explicitly overridden--the pillory made justice seem disorganized and capricious. That it was the common people who ultimately decided the severity of this punishment only made its general vagueness more threatening and dangerous. From a rather different viewpoint, some worried, on the basis of incidents such as the Defoe debacle, that the public could use a sentence of the pillory to take justice into their own hands, but this time, to render the prisoner's sentence less rather than more severe than the judge had intended. Sometimes, that is, the community simply could not be relied upon to perform their shaming part in the spectacle of public punishment. Indeed, on some occasions, they not only failed to shame the prisoner, but usurped judicial prerogative by freeing him or her altogether.

Yet it is the third set of criticisms leveled at the pillory that is most suggestive for an analysis of its use in punishing sodomitical offenders. For these critics, the main trouble with the pillory stems from the fact that--to borrow a vocabulary most readily associated with Michel Foucault -- it turns the perpetrator of a criminal act into someone whose identity is defined by that act. Indeed, as the first passage above from Beattie demonstrates, this turning of acts into identities was no accident: part of the stated purpose of the pillory was precisely to effect such a transition. Beattie notes that the point of the pillory was to "to chastise the offender and deter him and others from such behavior in the future, but also quite simply to make his identity known". By linking the perpetrator so deliberately in the minds of the community with his or her history of criminal activity, the pillory, like other public punishments, made acts into behaviors, and behaviors into enduring personal attributes. Public exhibition marked the offender off from society for all time, leaving what Beat-tie calls the "stigma" of his or her punishment as an indelible sign of propensities--and even of a full-blown criminal identity.

Eden, whose 1771 tract on penal law offered a newly balanced assessment of the merits and drawbacks of various non-capital sanctions, used identical terminology to express his own reservations about another, related punishment: branding. He writes, "To fix a lasting, visible stigma on the offender, is contrary both to humanity and sound policy. The wretch, finding himself subjected to continual insult, becomes habituated to his disgrace, and loses all sense of shame". Excessive use of shaming techniques, he concludes, will lead, rather paradoxically, to shamelessness, or at the very least, to an incapacity to feel the social force of shame. Though Eden here has in mind a punishment that leaves a visible mark, his remarks are no less germane to discussions of the pillory, given the widespread consensus, articulated by Johnson in the epigraph to this section, that standing in the pillory was intended to produce lasting effects of ignominy, effects that would long outlive the moment of punishment itself. It was intended, that is, precisely to fix a lasting--if not a visible stigma on the offender. Eden himself warns, of shaming sanctions in general, "Let Legislators then remember, that the stamp of ignominy is intrusted to their disposal; and let them use with oeconomy and discretion, this best instrument for the promotion of virtue, and the extirpation of vice". Shame is here figured as a stamp, a lasting impression that separates offenders out from the rest of the population. Such sanctions, Eden continues, "should be applied with great caution," lest, on the one hand, they lose their capacity to shock and engage the public, or, on the other, they create hardened criminals out of petty offenders. Shaming punishments, when applied injudiciously, and perhaps when applied at all, have the capacity to turn miscreants into monsters, behavior into being.

Eden was not alone in his criticism of the pillory as an agent for producing hardened criminals, and he was not alone, either, in his use of the language of stigmatization. In a brief anonymous tract published in 1814, "Brief Observations on the Punishment of the Pillory," the author cites as the first and most important reason for abolishing the device its ability to "set [the criminal] apart for ever as something polluted and debased." In a long and impassioned discussion of the perils associated with an exclusively public punishment, he gives a kind of fantasy genealogy for the development of a criminal identity.

No matter trivial his crime--how deep his anguish--how sincere his penitence--how elevated his capacities--he reads, or thinks he reads, contempt in the faces of all those with whom he converses, and believing himself incapable of becoming respectable, he relaxes all his efforts, and crushes his impulses to virtue. He is defiled with a stain which even his innocence, if subsequently brought to light, could not wash away.

The experience of public exposure may not be capable of making an innocent man guilty of a crime he has not committed, but it is, paradoxically, capable of making him into a criminal. To stand in the pillory incapacitates the offender for respectability or virtue, marking him out with a "stain"--not, this time, a literal stain, but a no less powerful figurative one--that relegates him to a class of individuals similarly demarcated from the rest of the population. As the anonymous author of this pamphlet concludes, sentencing a man to the pillory, regardless of his offense, "send[s] him back into the walks of men impressed with a mark of indelible infamy".

In The Trouble with Normal, Michael Warner writes, paraphrasing Foucault, that modern sexual identity "attaches not to doing, but to being." It has not, he notes, always been this way: "sexual deviance was once more a matter of shame than stigma". In a long passage in which he helpfully distinguishes between the two terms, and thus between the two regimes of which, he believes, they are representative, Warner writes: Stigma, like its etymological kin stigmata, refers to a mark on the body, like a brand or a tattoo or a severed ear, identifying a person permanently with his or her disgrace. Among the Greeks, it may have been punishment for a deed such as treason or running away from a master. It marked the person, not the deed, as tainted. This is what the modern metaphor of stigma singles out. It is a kind of "spoiled identity," as Erving Goffman calls it in his classic study. Ordinary shame, by contrast, passes. One might do a perverse thing and bring scorn or loathing on oneself, only to sober up and make excuses, move to a new town and start over, stay and outlive the memory, or redeem oneself by fine deeds. This kind of shame affects one's biographical identity. The shame of a true pervert--stigma--is less delible; it is a social identity that befalls one like a fate.

What this short history of the pillory suggests is that public shaming punishments for sexual deviance participated in the process of dislodging stigmatization from a literal mark on the body and redefining it as a metaphorical characteristic of personhood. By so doing, they made possible the transformation of doing into being noted by Warner and almost all other critics working on early modern sexualities. The very process designed to eliminate the practitioners of deviant sexual acts succeeded, in predictably Foucauldian form, in offering those same practitioners what Warner calls "a social identity," an identity legible to others as well as to themselves. Failing to punish sodomitical offenses, it was believed, threatened to unleash a wave of sexual deviance across the land. Yet punishing sodomy--punishing it, above all, in public--threatened to do much the same thing. In the words of Eden, in his own careful treatment of a category of crime he calls "certain unnatural abuses of the person,"

The unavoidable and general detestation of mankind will always be a strong barrier against so horrid a crime; but it may be a question, whether the public prosecution thereof be founded in wisdom. Some have thought it unsafe, and likely rather to solicit the attention, than to deter from the crime.

Eden was not alone in his conviction that the public prosecution of sodomy was potentially unsafe, and probably unwise. Nonetheless, like his contemporaries, he found himself unable to balance the competing demands of a penal system steeped in the ideology of shame with a newfound understanding of the manifold dangers associated with publicizing this most secret of crimes.

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