scarlet letter of the law: Hawthorne and criminal justice, The

1.

In the scene of public witnessing that begins The Scarlet Letter, the Governor, magistrates, and elders look down from their balcony to the platform where Hester Prynne stands in proud shame, raised in turn above the grim faces of the milling crowd. The ground-level voices we hear express a resentment quite appropriate to a townspeople both beneath and outside the nexus of unassailable power represented by that balcony, "the place whence proclamations were wont to be made" (64). Though they hold varying opinions of the letter-wearing sentence, in one thing the townspeople's comments are consistent: not they but the magistrates have had the sole power and authority to deal with Hester Prynne. "This woman has brought shame upon us all and ought to die," rants one woman. "Is there not law for it? Truly there is, both in the Scripture and the statute-book. Then let the magistrates, who have made it of no effect, thank themselves if their own wives and daughters go astray!" (51-52).

In Hawthorne's Puritan world, the only decision-makers standing between Hester and the gallows are the all-powerful magistrates. Their word is law, their discretion untrammeled. If the colony has a fully developed criminal justice system-grand juries returning indictments, juries assessing trial testimony and returning verdicts, pre-determined criminal penalties governing the sentencing of offenders-we don't hear about it. Instead, the entire apparatus of the Puritan Rule of Law in The Scarlet Letter is signified by this small group of powerful men, accountable apparently to none but themselves and their God. The first three chapters create the clear impression that the townspeople are wholly excluded from any decision-making role in dealing with crime.' The conflation of religious, political, legislative, and judicial power in Hawthorne's early New England is total: the monolith rules and sentences. The people may mutter, but they must also unhesitatingly obey.

As Hawthorne well knew, however, the legal and judicial authority of the magistrates, particularly during the tumultuous decade in which he situates his tale, was anything but unassailable.2 The colony's criminal justice system had been intentionally structured to counterpoint magistratical power with the peergroup power of grand and petit juries and elected legislators who were not magistrates. And, wherever magistrates nevertheless attempted to exert hegemonic power, their authority was under persistent siege. Juries brought in verdicts which frustrated and undermined magistrates' judicial authority. Agitators for legislative reform worked to set prescribed penalties for crimes with the explicit goal of circumscribing the magistrates' discretionary sentencing authority. In short, the historical magistrates were neither as powerful nor as awe-inspiring as their fictional counterparts.

The wealth of excellent recent scholarship focusing on Hawthorne's Puritan sources has explicated a host of issues underlying the Puritan world of Hawthorne's fiction: the religion, sexuality, and politics of prominent Puritans Anne Hutchinson, Richard Bellingham, and John Winthrop have all been persuasively detailed (Colacurcio, Essays; Arac; Bercovitch; Berlant). But what has not been adequately explored in this most legal of novels is Hawthorne's ahistorical imaging of the machinery of Puritan criminal law. At the same time that the novel seems obsessed with crime and punishment, it avoids-indeed erases-the institutions and procedures that constitute public criminal process. This essay applies a process of double historicization to the novel's exploration of the relation of crime and law to the private individual. The first level of inquiry compares case histories, statutes, and legal disputes of the 1640s to Hawthorne's fictional Boston, to locate points of significant variance. Hawthorne's occasional inaccuracies have been the subject of critical discussion for more than thirty years; as recently as 1988 Michael Colacurcio declared that the novel's "major historical fabrication" was casting Bellingham rather than Winthrop as governor in June of 1642 (110). I argue that a great deal more was changed or eliminated, and that the text consequently bears the traces of a series of historical figures it struggles to suppress. These include, most significantly, the shadows of three: the townsman juror, the whipped woman, and the political malcontent.

Focusing historical analysis on what Hawthorne's text omits will require a reevaluation of the novel's traditional villains, the "grim-visag'd" magistrates whose sentence binds Hester to the red letter of the law. Hawthorne's narrator characterizes them as rigid, severe, and frostbitten, incapable of judging a woman's heart; surprisingly, critics who specialize in exposing this narrator's ironic doublespeak in other areas have accepted such epithets.3 Measured against their historical counterparts, however, Hawthorne's magistrates emerge as distinctly progressive; if they are more autocratic, they exercise their power with compassion and restraint.