Criminal Records in Colonial America

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Jul 18, 2015

I admit to being a bit of a history buff. So, when I found myself in Boston last week, I decided to take a tour that focused on Boston’s colonial past and the American Revolution. To my great interest, the tour included a discussion of the colonial legal system and, surprisingly, the system by which the colonists maintained criminal records. While there is much legitimate criticism of our current system of maintaining and reporting criminal records, we’ve come a long way.

In colonial times, the practice was for criminals, upon conviction, to be branded with a hot iron. The brand was in the shape of a letter that reflected the nature of the offense. Burglars and thieves were branded with a capital B or T. Those convicted of manslaughter were branded with a capital M. There were regional variations both in the nature of crimes that warranted branding and the precise brand applied. So, for example, in colonial Maryland, “rogues and vagabonds” could be branded with the letter R.

Generally speaking, brands were applied to the convict’s right hand, which is believed to be the origin of the practice of requiring a witness to raise his right hand when taking a testimonial oath in court. The brand would be obvious to all in the courtroom, who could then judge the witness’ credibility in light of his prior convictions. There was also no question about the accuracy of a person’s criminal records, as they literally carried the record on their body. Repeat offenders were branded on their left hand and/or face, generally the forehead or cheek.

By modern standards, the practice of branding is, of course, barbaric and would never pass muster under the 8th Amendment (prohibiting cruel and unusual punishments). However, at the time, when most crimes were punishable by a grisly death, branding was considered light punishment.

So, whenever you are tempted to complain about the current state of criminal records and reporting, remember, that things have been worse - - a lot worse.

For those interested in learning more about this subject, here is a link to a short article that appeared in the Colonial Williamsburg Journal in 2003: http://www.history.org/foundation/journal/spring03/branks.cfm. For a longer read, try Criminal Justice in Colonial America, 1606-1660 by Bradley Chapin.

Craig E. Bertschi, Partner — McRae Bertschi LLC