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 above quote comes from a section of Bill 64, "A Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital," one of 126 bills submitted to the Virginia Assembly in 1779 by the Committee of Revisors.1 This committee, headed by Thomas Jefferson, worked for two years revising the colonial laws, as Virginia began making the legal transition from colony to commonwealth.2
The primary objective of Bill 64 is indicated in its title, a Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital, and then stated specifically in Section 1 that capital punishment, "... should be the last melancholy resource against those whose existence is become inconsistent with the safety of their fellow citizens" and "... no crime shall be henceforth punished by deprivation of life or limb except those hereinafter ordained to be so punished."3 With these directives included in the introduction, the bill aimed at curtailing the widespread and indiscriminate use of capital punishment, which had been common under colonial law, while insuring a more uniform dispensation of justice throughout the commonwealth.
But then how does the punishment of maiming and disfigurement suggested for the crimes of rape, polygamy, and sodomy become a part of a bill whose aim is more humane and equitable justice? Though the ninety-page report presented to the General Assembly was produced by committee, Jefferson appears to have been the chief architect of Bill 64, as the outline for the bill is entirely in his hand. In his autobiography, he gives considerable attention to the Revisions of Laws and mentions the crime and punishment bill specifically:
On the subject of the Criminal law, all were agreed that the punishment of death should be abolished, except for treason and murder, and that, for other felonies should be substituted hard labor in the public works, and in some cases, the Lex talionis. how this last revolting principle came to obtain our approbation, I do not remember. ... it was the English law in the time of the Anglo-Saxons, copied probably from the Hebrew law of 'an eye for an eye, a tooth for a tooth,' and it was the law of several antient people. but the modern mind had left it far in the rear of it's advances.4
The inclusion of the lex talionis, or retaliation in kind, bothered Jefferson even as he worked on the bill. By letter he consulted with fellow committee member George Wythe and wrote, "I have strictly observed the scale of punishments settled by the Committee, without being entirely satisfied with it. The lex talionis, altho' a restitution of the Common law, ... will be revolting to the humanised feelings of modern times. An eye for an eye, and a hand for a hand will exhibit spectacles in execution whose moral effect would be questionable .... This needs reconsideration."5 Despite Jefferson's reservations, the ninety-page revisal report was submitted with the punishments for rape, polygamy, and sodomy unchanged.
The entire revisal report was not voted on as a unit, and by the time the crime and punishment bill came before the General Assembly, Jefferson was in Paris serving as American envoy. Friend and political colleague, James Madison, kept him informed of the progress of the revisals, and as for the crime and punishment bill, Madison predicted a "vigorous attack."6 Following the passage of the bill of most significance to Jefferson, the Virginia Statute for Religious Freedom, he wrote to Madison extolling the interest it had generated in Europe, and in the same passage admitted that his crime and punishment bill had not met with the same enthusiasm: "In the criminal law, the principle of retaliation is much criticised here, particularly in the case of Rape. They think the punishment indecent and unjustifiable." Jefferson agreed but for a different reason and saw potential misuse of the law: "I should be for altering it, but for a different reason: that is on account of the temptation women would be under to make it the instrument of vengeance against an inconstant lover, and of disappointment to a rival."7
It was not until early 1787 that Madison reported to Jefferson, "... a rejection of the Bill on crimes and punishments ... was lost by a single vote. The rage against Horse stealers had a great influence on the fate of the Bill. Our old bloody code is by this event fully restored ...."8 One could wonder from Madison's remark if the inclusion of the lex talionis ignited any more objection than the reduction of horse thievery from a capital crime punishable by death to one to three years' hard labor.
1. 64. A Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital, June 18, 1779, in PTJ, 2:492-507. Transcription and editorial notes available at Founders Online. The section of Bill 64 quoted above is found on page 497. Editor Julian Boyd prefaces this section with very complete editorial notes. A discussion of Jefferson's participation in the crime and punishment bill is found also in Malone, Jefferson, 1:269-73.