Vol. 16 No. 6 (June, 2006) pp.450-453

THE HANGING OF EPHRAIM WHEELER: A STORY OF RAPE, INCEST, AND JUSTICE IN EARLY AMERICA, by Irene Quenzler Brown and Richard D. Brown.  Cambridge, MA: Harvard University Press, 2003.  408pp.  Hardcover. $26.95/£17.95/€24.90. ISBN: 0674010205.  Paper (2005).  $15.95/£10.95/€14.80 ISBN: 0674017609.

Reviewed by John Brigham, Department of Political Science, University of Massachusetts, Amherst.  Email: brigham [at] polsci.umass.edu

When THE HANGING OF EPHRAIM WHEELER, about the last execution for rape in Massachusetts, came in the mail, I had been reading Gustavus Myers’ classic HISTORY OF THE SUPREME COURT, which was written in 1912. Unlike contemporary liberal commentators, Myers links the rise of great wealth and the brutal punishments in the early colonial period to the establishment of the American system of property relations, the rule of law and, ultimately, to the creation of the Supreme Court.

The punishments of branding, whipping and execution that characterized the Puritan colonies and lasted until some time after the Revolution have had particular meaning lately as we try, after Foucault, to understand how authority is wielded in their absence. While the inequalities characteristic of a rise in great wealth have intensified, the public brutality associated with their initial emergence has diminished. Even in the reign of the war on terror, most punishment is hidden and unofficial.

The book on Ephraim Wheeler’s hanging in 1806 seemed particularly apt for trying to understand the transformation in styles of American punishment that has taken place since colonial times. American society has moved from public corporal punishment – in particular what the colonial reformers called “sanguinary laws,” which included death by hanging. Of course, the movement has not been so far and fast as they have moved in much of the rest of the world, but there has been movement to imprisonment and the new penal considerations identified by scholars from Beccaria and Blackstone to Foucault.

Post Revolutionary Western Massachusetts has a special place in jurisprudence for its role in the constitution of American democracy. This area where I am fortunate to work was an exciting place around 200 years ago. It spawned Shay’s Rebellion and raised a number of questions about the new constitutional structure. Just as Shay’s Rebellion was vivid in 1806, many of the aspects of social life present at that time have contemporary manifestations. The house where one of the judges lived in Wheeler’s day stands as the Historical Society in Amherst. The Supreme Judicial Court of Massachusetts still travels to the countryside for sessions, and there is still a Sullivan prosecuting attorney.

The Wheeler book comes from Harvard University Press, a part of another of the institutions of Puritan Massachusetts that [*451] has survived in modern America. Once a colonial seminary, Harvard now thrives in a form that is called “private.” Its press is important, and the picture of punishment it presents in this book, though popularized, has a certain gravitas. The authors’ recount being inspired by Natalie Zemon Davis’ RETURN OF MARTIN GUERRE. And, like this successful book about a French trial, THE HANGING OF EPHRAIM WHEELER is full of popular period pieces. The combination of authority and popular appeal is a feature of work from The Belknap Press of Harvard University Press.

Each chapter of the book begins with an extensive quotation from a primary source, which becomes the basis for the narrative. This is a useful device that helps draw attention to the importance of documentary material in preserving the details of this narrative over two centuries. The quote for Chapter 2 on “The Trial” is extensive. It is from a letter to a Virginia paper of the period that comments on the sentence of death, the crime of rape and the prospects for publishing the transcript of the trial.

Chapters are organized dramatically, with one for the daughter who accuses her father of rape, one for the wife, and one for the condemned man. Each portrays aspects of colonial social life that help us to see that various archaic and little discussed cultural institutions supported the last hanging in Massachusetts. One of those institutions is indentured servitude where orphaned children were all but enslaved to masters for extensive periods. In the case of the condemned, Ephraim Wheeler, it was to a brutal shoemaker. Tales of brutal punishment inflicted privately on Wheeler until he left at 21 mirror the brutal punishment that will be enacted upon him by the state as an adult.

At times the narrative by Irene Quenzler Brown and Richard D. Brown jarringly juxtaposes very early 19th century morality and contemporary values, as when the authors speak of “family violence” and of actions resonating “across time” (p.6). We are currently interested in family violence, and sometimes that lens hypes aspects of Wheeler’s trial and makes the treatment seem a bit ahistorical. On the other hand, the evident public outrage over sexual relations with his daughter that led to Wheeler’s execution is certainly comprehensible today. The racial aspect of the case is handled with considerable understatement, and, as the authors assert, would have been appropriate for the time. Wheeler’s wife Hannah, one of his accusers, is described as “a woman of mixed racial ancestry” who was “taken to be white” (p.269). The book’s contention is that nothing is made of race during the trial.

The historically self-conscious “Aftermath,” where the historian’s craft is on the surface, seems more satisfying in this regard. Here, the political battles between Federalists and Jeffersonians are represented vividly. And, in the context of the time, we are presented with examples of early anti-capital punishment advocacy, which successfully limited the use of execution in Massachusetts. We learn of the judicial embarrassment more than 100 years later over the execution of women [*452] in Salem as witches, and we are encouraged to appreciate the enlightenment values that limited the confidence of those in power that Wheeler’s execution was an appropriate punishment.

The social standing of the main figures of the trial gets a great deal of attention. This was a case held before the Supreme Judicial Court of Massachusetts. The judges were the gentry figures, Theodore Sedgwick, Samuel Sewall and Simeon Strong – all Federalists. Sedgwick and Strong, westerners, went to college at Yale; while Sewall, who was from Boston, went to Harvard. The authors point out that these figures brought the stature of their place in society to the bench. The prosecutor, James Sullivan was a self-made man and a Jeffersonian. The son of Irish indentured servants, he did not go to college but apprenticed at law and had a full career before taking the Wheeler case at the age of 61.

Some scholarship is subsumed in the popular style of the presentation where documentary sources get far more attention than the current students of law and crime who condition our sensibilities to these institutions today. The authority of the state enacted in the last minute reprieve echoes the work of Douglas Hay in ALBION’S FATAL TREE. Although it was not to be a gift granted to Wheeler, the author’s aptly note the relevance of the pardon in Massachusetts in 1806. In addition, the execution spectacle as a waning punitive form says Foucault loud and clear. Hay is not mentioned, and Foucault only briefly.

I like the book for highlighting the relationship between the trial and the lives of prominent members of the community. But in the case of the principals, this was not a case of using the trial to advance careers. The judges and the prosecutor brought considerable stature to the proceedings. Nor can it be said that this execution was in response to the desire for blood on the part of the lower classes. THE HANGING OF EPHRAIM WHEELER, read along with Myers on the Supreme Court, provides considerable depth for his thesis that brutality, economic inequality, and class violence are foundations of the rule of law in America. One has to look beyond the conventions or politics of litigation to see these dynamics. This book helps.

The good burghers of Massachusetts in 1806, the gentry produced for the most part by Harvard and Yale, maintained their institutional authority much as was the case for the most recent nominations to the Supreme Court. Grand figures, elegant, educated, folk send poor men to the gallows, while authorities affirm their standing by the horror of the crimes before them. We do not see executions or other punitive brutality as much today, even when the crimes are horrible, but the social power on which state and law rests seems all the more solid for being out of the limelight

REFERENCES:

Davis, Natalie Zemon. 1983. RETURN OF MARTIN GUERRE.  Cambridge, MA: Harvard University Press.

Dumm, Thomas L. 1987. DEMOCRACY AND PUNISHMENT: DISCIPLINARY [*453] ORIGINS OF THE UNITED STATES. Madison: University of Wisconsin Press.

Hay, Douglas, Peter Linebaugh, John G. Rule, E. P. Thompson, and Cal Winslow. 1975. ALBION’S FATAL TREE: CRIME AND SOCIETY IN EIGHTEENTH-CENTURY ENGLAND. New York: Random House.

Myers, Gustavus.  1912.  THE HISTORY OF THE SUPREME COURT OF THE UNITED STATES.  Chicago: Charles H. Kerr & Company.

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© Copyright 2006 by the author, John Brigham.