"Justifiable provocation": violence against women in Essex County, New York, 1799-1860.

Moore, Sean T.

Four months after brutally murdering his wife, James Bishop mounted the newly-constructed wooden platform in the center of the Elizabethtown prison yard in Essex County. Displaying all the attributes of the repentant sinner, he climbed the four short steps to the gallows. Nervous and trembling and flanked by the sheriff and two clergymen, Bishop attempted to read a passage from the Bible. (1) Almost fainting and unable to gain his composure, he directed a clergyman to read the sixth chapter of Proverbs warning against the evils of folly and adultery. With the conclusion of the scriptural readings, Bishop regained his poise and spoke in a calm, clear voice to the audience of county officials, clergymen, and newspaper reporters. A local newspaper recounted Bishop's scaffold speech delivered in the shadow of the fourteen-foot-high cross beams. "He cautioned young men setting out into the world to 'shun bad company and vile associations.' He further 'advised and urged all men to be governed by principles of honor and integrity, and ladies to be true to their vows.'" As a final request, Bishop asked that his two-year old daughter Polly be "taught the principles of virtue and Christianity, and directed honestly and guided safely through all the winding passages of the world." With these final words Bishop "took a last leave of the Sheriff, the Clergymen, and Physicians, kissing them all in a very affectionate manner." At exactly one minute past three o'clock in the afternoon on the seventeenth day of March 1843, the executioner chopped the rope holding the two hundred pounds of counterweights and Bishop, with a handkerchief clutched in his hand, was propelled swiftly into the air. Within a minute and a half Bishop let go of the handkerchief as his body violently convulsed in a hopeless struggle with the hangman's noose. In the space of three minutes, his body hung lifeless and motionless in the cool Adirondack afternoon air. The Essex County Times And Westport Herald regretfully noted that James Bishop was the first pe rson executed in Essex County, New York, since its formation in 1799, stating "God grant it may be the last. (2)

In the past fifteen years the study of violence, and specifically violence against women, has provided a wealth of new information on gender relations, law, and society. The most comprehensive studies of violence against women have used divorce petitions and the case files of anti-cruelty societies to examine domestic violence in the late nineteenth and early twentieth century. These authors focus on one type of crime such as wife beating or violence against wives and children. (3) Studies of gendered violence before 1870 which do use criminal court records tend to concentrate on one class of crime such as rape. (4) Other scholars have made violence against women one of many categories in studies of gender systems in Puritan New England or nineteenth-century New York, without giving it full attention. (5) Another approach is to reconstruct women's lives through microstudies of famous criminal cases such as the Helen Jewett murder sensation of the 1830s. (6) Similarly, other historians have focused on a single aspect of nineteenth-century law relating to domestic violence such as the unwritten law, the marital-rape exemption, and the doctrine of mental cruelty. (7)

Historians have pointed variously to failed husbands, men traumatized by the radical new conditions of freedom, young men on the psycho-margins of society, the ideal of male citizenship, and the impenetrable barrier of the "Family Ideal" as central to understanding the social and legal aspects of the murder, rape, and assault of women in nineteenth century America. (8) Despite this creative use of sources, historians have not formulated connections between domestic and community violence or between these categories of crime.

Unlike James Bishop, many men were not prosecuted to the full extent of the law, if at all, for murder, rape, or assault of women in Essex County. Hester Bishop's murder was part of a larger trend between 1799 and 1860 in which violence against women increased as overall violence countywide dropped. After the 1830s, women in Essex County were more likely to be murdered, raped, and assaulted than their mothers had been. In the testimony, the rulings, and the newspaper coverage of these court cases, the level of justifiable violence against women and the sheer number of unprosecuted and initially unreported violence is conspicuous. (9)

This trend offers a striking contrast to fundamental and seemingly progressive changes in family relations, the criminal law, and public attitudes towards violence in antebellum America. During this period, male heads of households increasingly found their authority challenged by evangelical religion, the emergent industrial order, zealous reformers, and judicial intervention in family matters. By the mid-nineteenth century, the ideologies of separate spheres and the affectionate, privatized family displaced the traditional authoritarian, patriarchal family structure. In New York State, these familial changes were paralleled by revision of the criminal laws in 1813 and 1829; the rapid development of reform campaigns against corporal punishment in the home, schools, and prisons; the enactment of the women's property acts, (1848-1862); and the emergence of the women's rights movement in 1848. However, the rhetoric of progressive change masked the reality of increasing violence in Essex County against women in t heir homes and their communities.

An analysis of murder, sexual assault, and "common" assault cases reveals that this was a transitional period in violence against women. Consequently, this study attempts to address the following questions; why did women in Essex County, New York fail to gain stronger redress and protection in the criminal courts from 1790 to 1860 in an era of progressive changes in family relations, reforms in the criminal law, and a growing intolerance toward violence? Moreover, why in a period when violence was generally declining in Essex County, did it increase against women? (10)

I

In the fifty years preceding Hester Bishop's murder and James Bishop's hanging, Essex County experienced two generations of growth and settlement. By the 1840's, the county no longer exhibited the features of a frontier. All but three of the county's eighteen towns were established, and the population was nearing its high point for the nineteenth century. The increase in population and commercial activities was accompanied by an increase in crime. Indictments for all types of crimes rose from 251 in the county's first thirty years to 465 in the period between 1830-1860, an increase of 85%. However, the ratio of indictments to population actually displayed a decline from 1830-4860. With an average population of 11,445 in the first three decades, the ratio was one indictment per forty-five people. In the last three decades when the county had an average population of 28,154, the ratio dropped to one indictment per sixty people. (11) More notably, in Essex County's first thirty years, violent crimes accounted fo r 43% of all incidents. Later between 1830 and 1860, only 29% of the total crimes before the criminal court pertained to violence. (12)

In the midst of this progressive decline in overall violence, a pattern of femicide and especially, wife murder, emerged. The 1842 Hester Bishop case was the first incident of femicide in the county. Additionally, of the nine men tried for murder in the county between 1799 and 1883, only two, James Bishop and Henry Debosynys, both wife murderers, were executed for their crimes. (13) This trend in murders and executions in Essex County represented a new pattern of deadly violence in upstate New York and northern New England. Randolph Roth's study of spousal murder in Vermont and New Hampshire shows that the number of wife murders rose from three in the 1790s to the 1820s to twenty-seven from the late 1820s to 1865. (14) In Albany County, New York a similar trend also developed. Wife murder and femicide appear in the court records beginning in 1840. Between 1840 and 1860, the Albany courts tried twenty cases of femicide of which twelve were wife murders. During this period 35% of all murders were cases of femic ide. Not only was wife murder a new phenomenon, but in the second quarter of the nineteenth century it was the type of homicide most likely to result in the death sentence. Of the four men executed during this period, three were for wife murder. (15) A close examination of wife murder in Essex County discloses the centrality of the victim's character and sexual fidelity in the sentences murderous husbands received and the community's response to marital violence.

William Hayes, James Bishop's nearest neighbor, reported on the night of the murder November 12, 1842 that he "heard a noise in the house after I got a few yards by stopped [and] supposed he was whipping his wife, but hearing no more noise went on." Hayes stated that Bishop "bruised her up once before so badly that I did not think she would live twenty four hours." (16) Hester suffered violence for at least a full year prior to the murder; in this period, the couple shared a house with James's brother, John and his wife. Clara Bishop described her brother-in-law as a harsh man and recalled "his slapping her [Hester] on the head until her nose & mouth bled considerably and she complained of his hurting her head." (17)

Hester tried three times to leave her husband, first on August 20, by boarding a sloop on Lake Champlain and disappearing for ten days, and the last time, weeks before her death. In each case, James searched her out and forced her to return home. Sarah Brooks, who lived in the Hayes's household, remembered seeing Hester the day she returned from the town of Essex, running out of her house naked and covered with blood. When she saw Hester later that day, Brooks told the prosecuting attorney "her [Hester's] eyes were all beat up as big as your fist, and her lips badly swollen." (18) Although the violence committed against Hester was common knowledge, no one reported it to the authorities. Men such as William Hayes were usually reluctant to physically intervene in cases involving domestic disputes. This reluctance may have stemmed from a general regard for familial privacy and a belief that spousal violence was disciplinary in origins and therefore partially justified. (19) Women on the other hand proved most wi lling to provide assistance to victims and testimony once charges were lodged.

Two days after the murder James appeared before the Chesterfield Justice of the Peace to answer the charge of murder. He testified that Hester had been sick all day and fell three separate times that evening, once while fetching water at the brook, a second time in the house when she "struck her face against the light stand," and a final time when she fell "backward in the cellar way." James's explanation that Hester's illness caused her to faint and fall and that she "appeared delirious," failed to convince the Justice of the Peace. (20) The severe injuries to Hester's face and head and the 75 to 100 bruises found on her body supported the charge that James clubbed Hester to death down by the brook. (21) While the prosecutors did challenge James Bishop's description of Hester's death as accidental, neither lawyer set out to contest whether James Bishop cruelly beat or mentally abused his wife throughout the duration of their marriage. Violence against women, though repulsive to the court and the community, w as rationalized and muted by the larger concerns with transgressions of gender roles.

James Bishop's lawyers presented Hester as a woman who neglected her wifely duties and thus was complicit in her own death. Deborah Hayes's testimony reveals the centrality of Hester's character in the defense's strategy. Was it true, they asked Deborah, that Mrs. Bishop fed her daughter Polly raw cabbage for three straight days even though there were plenty of provisions in the pantry, and that she repeatedly neglected to build a fire to warm the house? Did she recall Mrs. Bishop frequently appearing disheveled and dirty? Wasn't it true that Mrs. Bishop had neglected her home and left without explanation on three separate occasions? Hayes asserted that the deceased's neglect of her maternal and wifely duties was forgivable owing to the abuse she endured. Additionally, Hester had been sick with a fever for the last six weeks and had suffered from the natural complications of pregnancy. According to Hayes, Hester had not challenged her husband's authority. (22) The courtroom argument turned not on Bishop's ass ault, but on Hester's moral stature as a wife and mother. The three female witnesses pointed out that if Hester failed in her duties as a wife, and mother, the fault belonged to James Bishop. (23) They claimed that James deprived his wife and child of the proper food, protection, and clothing. Under direct examination, Deborah Hayes explained how Hester subsisted on a diet of raw cabbage while "he [James] had nothing but pork, potatoes, and onions. She had two chemise[s] and one dress. I would not give 50 cents for all her clothing." Clara Bishop recounted that her brother-in-law James beat his infant daughter, Polly, on more than one occasion and that Hester "seemed to have care for the child." (24)

Sensing that the testimony of the three women might be enough to persuade the jury that the murder was premeditated, the defense attacked Hester's sexual reputation, intending to prove that during her ten-day sojourn in Essex the previous August, Hester broke her marriage vows and contracted gonorrhea. Under cross-examination, Jacob Blaisdell, Hester's doctor, admitted that he examined and prescribed medicine to the Bishops for gonorrhea. However, Blaisdell stated "the complaint was not on her at the time of her death." The defense argued that she infected her unsuspecting husband with the disease, which in turn drove him to acts of extreme violence. Circuit Judge John Willard ruled against the defense pursuing this line of questioning, "deciding the transaction to be too remote in point in time to show justifiable provocation; and also remarking that the facts about the disease were already proved and before the jury." (25)

The claim of sexual impropriety failed to sway the jury. Not only did the time between the alleged act of infidelity and the murder undermine the defense's line of argument, the fact that Hester was five months pregnant and had taken her daughter Polly with her when she left in August, also argued against the idea of adultery. Considering that juries as a general rule tended to err on the side of mercy in cases involving the death sentence, the conviction of James Bishop suggests that the guilty verdict rested on more than just the testimony of Deborah Hayes and Sarah Brooks. Based on the evidence offered, it would have been much easier for the jury to find James Bishop guilty of second-degree manslaughter (26)

Both Bishop's status as a relative outsider to the Chesterfield community and the extreme nature of his violence against Hester contributed to the jury's returning a guilty verdict after only twenty minutes of deliberation. The two witnesses called by the defense offered very little testimony and barely knew Bishop. Also, the fact that the Bishops had moved three times in the preceding two years suggested that they were a rootless couple. (27) However, more than his status a newcomer or the extreme violence he committed against Hester, the trial testimony suggests that James Bishop's abuse of his husbandly powers provided the jury with the most important evidence for favoring a guilty verdict. In his sentencing speech, Judge Willard re-emphasized James Bishop's failings as a husband.... "The deceased was your wife--a feeble and unresisting woman; who, notwithstanding your abuse to her, was attached to you--she was entitled to your love--she always treated you with mildness and respect and never gave you any p rovocation for the repeated acts of cruelty which you practiced upon her." (28)

The Bishop trial indicates that "physical correction" of a wife was acceptable by legal and community standards if the wife provoked her husband to resort to violence. Thus, the key evidence in the Bishop murder trial was not so much the history of violence inflicted on Hester, but whether she provoked that violence. According to the defense attorney's scenario, Hester's alleged sexual indiscretion and failure to carry out her obligations of wife and mother, justified her husband's attacks. The defense's inability to produce convincing evidence of either allegation was a primary factor in James Bishop being sentenced to death by hanging.

The Bishops were part of a larger influx of immigrants who supplied the labor for the lumber, mining, and maritime industry in the Adirondacks and the Champlain Valley. What had mainly been an area originally settled by Vermonters and New Yorkers from the eastern counties along the Hudson River was after 1820 home to a growing population of immigrants from England, Ireland, and Lower Canada. (29) The percentage of aliens or unnaturalized citizens in Essex County rose from 1.5% in 1820, to just under 11% in 1835 and reached 15% on the eve of the Civil War. Chesterfield experienced an even faster growth of its foreign born population, rising from 4% in 1820 to 2 1.5% in 1835, and leveling off to 19% by 1870. (30) The "miserable hovel" that James and Hester Bishop lived in as described by the Essex County Republican was a more common site after 1820 as population and commerce both rapidly expanded in the Champlain Valley and Eastern Adirondacks. (31) Many of the new immigrants were rootless like James Bishop, ow ning no land, whose frequent change of residence derived from their following job opportunities, taking shelter with relatives, or petitioning for aid from the county during hard times. The increase in population coincided with the growth of a pauper class. Between 1830 and 1833, the county expenditure for poor relief increased from $420.80 to $5,358.48. (32) For a growing segment of the population of the larger towns in Essex County, the stabilizing ties of citizenship, land ownership, and family legacy were not in place. What gave these men a stake in the larger society of Essex County were their shared roles as fathers and husbands. The community and court recognized the rights of husbands and fathers, no matter how destitute their circumstances, to exercise a reasonable authority over their wives and children. Only when their actions turned deadly or ran up against community perceptions of reasonable husbandly authority, did men find themselves before the court.

Fifteen years after the execution of James Bishop, the Essex Court continued to apply the same standards in cases of wife murder. However, unlike James Bishop, Charles Gibson, who killed his wife Isabella in the town of Chesterfield in 1858, was found guilty of manslaughter rather than murder and sentenced to ten years in the state prison. Though he brutally beat, cut, and bludgeoned his wife to death, Cibson obtained a lenient sentence by emphasizing his wife's marital indiscretions. As in the Bishop case, the victim's character played a primary role. One witness testified that Charles Gibson told him "that [he] disapproved his wife going to the dance that she would go against his words. That men came there [,] got her drunk [,] and held him and ill-used [sic] his wife." Though the trial transcript never actually refers to this incident as a rape, the tone of the testimony implies that this attack on Isabella was a sexual assault. Various witnesses testified that Gibson complained of his wife's drunkenness a nd neglect of her household duties. A neighbor recalled hearing Gibson screaming and hitting his wife, so much that she intervened by knocking on the door. She asked Charles Gibson "what was the matter. Said he came home and found his wife dead drunk and the table stacked up with dishes." (33) Neglect of household duties, sexual indiscretion, alcohol abuse, and disrespect of a husband's wishes provided the justification for Gibson's fatal attack on his wife.

The testimony in both the Bishop and Gibson murder trials demonstrates that some women in Essex County intervened on behalf of their brutalized neighbors and publicly in the courtroom as witnesses. Sarah Edwards related to the court in great detail the horrible beating which Charles Gibson committed upon Isabella. The lurid details of Gibson repeatedly screaming "get up" to Isabella, punctuated with a blow each time, suggest the anger he felt towards his wife. Elizabeth Moyan, another neighbor, swore that Isabella had marks of violence on her body two weeks prior to the murder, indicating that Gibson's abuse of Isabella was periodic and that it preceded the incident at the dance. Indeed, Sarah Edwards provided the most damning testimony against Gibson by testifying that he told her that when he found Isabella drunk on the floor, "he was a good mind to take her life there. He had a good will to. He should if he found her in that situation again." (34)

Such circumstantial evidence of premeditation and graphic descriptions of the murder scene failed to convince the jury to convict Gibson of murder. Sensational descriptions by witnesses at the scene of the crime horrified the judge and jury, as the prosecution hoped, but not enough to find Charles Gibson guilty of first-degree murder. Most disturbing of all was Dr. Jacob Blaisdell's postmortem conclusion that Isabella died a slow death and she suffered five to fifteen hours after the beating before expiring. (35)

In the eyes of the jury, the evidence of premeditation, previous violence, and a slow, possibly preventable death were offset by Isabella's neglect of her domestic duties, alcohol abuse, disobedience to her husband, and most significantly the sexual dishonor she brought upon her husband and herself. The jury seemingly empathized with the crisis of authority and public dishonor which Charles Gibson faced because of her actions. Thus, the alleged rape of Isabella appears as pertinent evidence only in respect to Charles Gibson's defense. Charles Gibson considered Isabella as complicit in her own rape and the jury's verdict supported his contention. Isabella's defiance of both her husband's authority and community mores led to the rape and humiliated her husband. This perceived act of quasi-adultery, in conjunction with Isabella's other transgressions of his authority, translated into justifiable provocation.

Both Bishop and Gibson could be characterized as failed husbands whose frustrations turned deadly. However, this deadly frustration sprang not from an inability to be good providers or respectable and sober husbands, but from a deep sense of intimate betrayal. (36) It is primarily their wives' sexual indiscretions, real or perceived, which drove Bishop and Gibson's violence in a deadly direction. More than any other aspect of the victim's character, sexual fidelity weighed heaviest in the jury and in the community's mind, in deciding the guilt and punishment the murderer received. The Essex County Republican, while describing the execution of Henry Debosynys in 1883, the second man ever to be executed in Essex County, offered its readers a quick sketch of the Bishop trial and execution. According to the newspaper, an intoxicated James killed Hester because he was jealous, "probably with just cause." (37) While James's long string of brutal and debilitating attacks on Hester faded from the public mind, her all eged sexual infidelity remained in the public memory.

The noticeable rise in cases of femicide and more specifically wife murder represented extreme responses by husbands to the decline in traditional male family authority. In Essex County, and in other parts of the state, many wife murders were directly connected to the emergence of a similar violent phenomenon--the unwritten law which also emerged in the 1840s. Even though husbands who killed their wives rarely secured acquittals and often received time in the state prison, and sometimes even the death penalty, their motivations were often the same as husbands who killed their wives' lovers. (38) However, rather then a response to the perceived threat of libertine behavior to the survival of the virtuous republic (39) wife murder was a defense of the core tenets of patriarchy--sexual control, access, and regulation of women's sexuality. In many ways, male sexual authority represented the last bastion of unreformed patriarchy and the one area of family relations which religious, legal, and reform organizations were the least likely to confront. Sexual authority took on deeper meaning to men as challenges from inside and outside the family undermined traditional patriarchy.

II

While wife murderers were usually sentenced to hard labor in a state prison and occasionally sentenced to death, rapists rarely faced conviction or even prosecution for their crimes. Rape was the one area of violence least impacted by the broader social changes in this period. Changes in the laws and a greater willingness by some women to take their assailants to court failed to bring about marked increases in convictions. As in the case of the Bishop and Gibson murder trials, the decision by a court to acquit or convict for rape or attempted rape rested primarily on the character and actions of the female victim. The laws of New York, though revised in 1813 and 1829, remained fixed in regard to evidence of rape. A manual printed for justices of the peace in 1841 repeated essentially the same advice found in an 1803 manual: "If the prosecutrix be of good fame; if she presently discover the offense, and make search for the offender; if the party accused flee; these and the like circumstances give greater proba bility to her evidence." (40) Several factors--the woman's reputation, the time between the attack and the resort to legal redress, level of resistance, remoteness of the location of the incident, and whether she continued to have contact with her attacker after the attack--all influenced the decisions of the judge and jury. Though the revised laws no longer required proof of penetration and emission to sustain a charge, the law still required evidence that some degree of penetration actually took place during the attack. The difficulty of establishing that fact explains in part why, in most cases of rape between 1799-1860, attackers were usually charged with assault and battery with intent to ravish or commit a rape, rather than rape itself. However, even attempted rape charges were often unsuccessful. Almost 40% of these types of cases ended in conviction on the lesser charge of assault and battery. Therefore, it is likely that some of the indictments sworn out for assault and battery may have actually been sexual assaults, but were "down charged" in order to secure a conviction. (41)

The first rape conviction in Essex County, involving a gang rape of an American Indian named Susannah by three white men, took place in 1821 and resulted in the harshest sentence ever handed down by the Essex County court for sexual assault. One man was convicted of rape and sentenced to life in prison and the other two assailants were sentenced to seven years each in the state prison for attempted rape. However, the 1821 rape case verdict and sentences represented an anomaly in the history of sexual assault in nineteenth-century Essex County. Not until seventeen years later, in 1838, when John Burke received five years of hard labor in the state prison for raping Lucy Hedden, a sixty-seven-year-old married woman, did the court secure another conviction. Convictions for attempted rape were also rare. Indictments for assault and battery with intent to rape usually led to conviction on the lesser charge of assault and battery or a complete acquittal. Over the course of sixty-one years, only three of the fifteen charges of assault and battery with intent to commit rape ended in conviction on that charge. Out of thirteen charges of rape during this period, only five resulted in conviction on any charge. With the exception of the aforementioned 1821 rape case, those convicted received sentences of less than five years in the state prison. Therefore, even after the 1829 statute revisions, no Essex court ever imposed the minimum ten-year sentence. The court continued to indict and to convict accused rapists on lesser charges, such as assault and battery, or courts imposed the lightest sentence for rape mandated under the state law. (42) Though it appears that modification in the law resulted in an increase in the number of indictments, convictions remained rare throughout the first half of the nineteenth-century. In sum, out of thirty-one charges of sexual assault for the entire period, only eleven ended in conviction: five reduced to assault and battery; two for attempted rape; three for rape; and one for incest. The l ast drew the second longest sentence handed down by an Essex County court, ten years hard labor in Auburn state prison. (43)

The Edward Talbot case of 1828 illustrates the limited recourse to the law available to women in Essex County. Talbot was charged on the oath of John Shaw, Jr., with assaulting and attempting to commit a rape upon Tacy Shaw, John's wife. Talbot, an acquaintance of John, had stopped at the Shaw residence allegedly to borrow a law book. Tacy and her two children were sleeping when Talbot stopped by. Within seconds of handing him the book, the barely alert Tacy found herself struggling to free her wrist from Talbot's menacing grip. He "offered her a new gown and strove to push her back on the bed stating likewise that he would not begrudge a dollar for a chance." Tacy managed to escape out of the house before Talbot could rape her. After considering her options, she decided to re-enter the house hoping that he had left. Talbot had not left and tried to attack her again, however, she again managed to escape his grip and run out of the house. Shortly after her second escape, two girls passing by the Shaw house agr eed to accompany Tacy back into her home, by which time Talbot had left. The Talbot case concluded with a conviction for assault, not attempted rape. Talbot was fined five dollars and released. (44)

The Talbot case illustrates the difficulty women had in deciding whether to press a rape or attempted rape charge. Though she enlisted the aid of other women after escaping from Talbot, the court record indicates Tracy's reluctance to press charges. "She mite call for help if he attempted again as neighbors lived within call," (45) she explained to Justice of the Peace Baker as to why she did not call for assistance after Talbot's first attempt to rape her. It is doubtful whether on her own Tacy would have reported the attempted rape at all. This incident only made it before the court because John Shaw brought the charge against Talbot. In many cases it was the husbands or fathers of rape victims who influenced whether charges should be pressed against assailants. (46)

A brief review of the state laws affecting the prosecution of sexual violence reveals that despite modifications in the definitions of rape and attempted rape and the enactment of lenient sentencing guidelines women rarely secured convictions against their attackers. Before revision of the state laws in 1813, rape was defined as "unlawful and carnal knowledge of a woman, by force, and against her will." Also, carnal knowledge of "any woman-child under the age often years," (47) or taking a woman against her will and marrying her or forcing her to marry any other person also constituted rape under the state's laws. As in the British legal code during this period, a charge of rape required proof of penetration and emission. All individuals convicted of performing, aiding, or abetting the rape were subject to life in prison. Also inherited from British criminal law was the provision that if a woman was known to be a prostitute or if a woman yielded under duress or after the fact, it did not disallow a charge of rape from being broght before the court. (48)

After the revision of the state laws in 1813, the definition of rape and the sentence of life imprisonment remained unchanged, but the statute now set limits on imprisonment: a first assault with intent to rape permitted a sentence of not more than seven years; and a second such assault allowed a sentence of up to fourteen years. (49) The second revision of the New York Statutes in 1829 furthered shortened prison sentences and added several qualifiers as to what constituted rape. Only proof of the slightest penetration was required, even when the signs of virginity remained intact; and emission was no longer necessary to convict. The revised laws declared a man could be charged as both a rapist and as someone who aided a rape, thus making it possible to prosecute all accused parties on the charge of rape. Previous to statute's revision, only one person in a gang rape could be charged with rape. The remaining perpetrators could only be charged with assisting or aiding in a rape. The new statutes also stated th at a women's failure to resist a sexual assault because she was drugged or deceived into believing that her attacker was her husband, amounted to rape. Finally, the revisers upheld the belief that a man could not be charged with raping his wife, but declared he could be charged with assisting another to rape his own wife. (50)

With the new revisions, rape now carried a minimum sentence of ten years. However, rape by drugging and or by deception limited the sentence to a fiveyear maximum. Because drugging and deception removed the assailant's need to use force or gain consent, the court appears to have viewed the crime as less grievous and the victim as partially complicit. Assault with intent to ravish resulted in a five-year maximum or a five-hundred dollar fine or both. Finally, if an assault with intent to ravish was committed with a deadly weapon, the attacker faced a ten-year maximum sentence. (51) Though the revised law may have encouraged more women to come forward with charges, the Essex County court records indicate that the reduction of penalties did not prompt an increase in convictions.

Beyond having to defend their reputations and proving that they tried to resist their assailants, victims of rape and attempted rape rarely recounted incidents that met the basic rules of evidence, which called for timely reporting of an attack perpetrated by a stranger in a remote location. The circumstances of the Talbot attack were typical of the rapes and attempted rapes that surfaced in the pre-1860 records of Essex County. The offer of money or gifts in exchange for submission or in exchange for silence after a sexual attack, the status of an attacker as an acquaintance, the prevalence of attacks in a supposedly safe or protected environment, and the tendency of perpetrators to display little inclination to flee following an attack disclose why the criteria for gaining an indictment and conviction for rape or attempted rape seldom matched the circumstances of actual rapes.

Of the thirteen cases for which details survive seven sexual assaults took place in a home environment, usually in the victim's bedroom. As Sharon Block found in her study of coerced sex in British North America, rapists often blurred the line between consensual and forced sex by raping their victims in their beds. This "attempt at replicating consensual social and sexual relationships" (52) was exemplified by asking the victim to consent or by offering her money and gifts in exchange for consent or silence. Rape and attempted rape often occurred in plain sight. In nine incidents, bystanders were close at hand, either in adjoining rooms or passing by, or were terrified children. In nearly half of the cases, the attacks were during the day and usually involved two or more assailants. Additionally, in ten out of thirteen sexual assaults the assailant did not flee immediately or demonstrate any sense of urgency or need to escape.

Charles Murphy's attempted rape of Margaret Chase emphasizes the gap between the rules of evidence and the actual details of reported sexual assaults. After Charles Murphy with the help of Charles Blanchard tried to rape Margaret Chase in her own home in 1844 she escaped out of the house and ran down the street with a butcher knife in her hand. Murphy chased her with a club and finally disarmed her and forced her back to the house. Again she managed to escape, taking refuge for the night in a neighbor's house. When she returned the next morning and looked in her bedroom window, she saw Murphy covered in a blanket fast asleep in the bed with an ax lying nearby. Chase hid in the woods until Murphy left. This incident happened while Chase's husband was away for two days. Murphy was brought before the court on charges of assault and battery with intent to rape. Even though the jury found him guilty, Murphy was sentenced to merely ninety days of close confinement in the county jail, although he was placed on a sta rvation diet of bread and water two days a week. Murphy's accomplice Charles Blanchard was not charged with any crime and in fact served as a witness for the people. (53)

On many occasions, women knew their assailants, and these attacks often took place in the presence of their children and while their husbands or other adult males were absent. In the case of Martha Knights, her husband Sydney actually lay dead drunk in the next room. She exclaimed to the judge that because her "husband was so intoxicated with liquors ... I didn't awake him." Martha averted being raped by Robert Gracey, an overnight guest and friend of her husband, by persuading him to let her up to check on her one-year-old child in the other room. She promised to come back to Gracey, but after checking on the child, her husband had roused from his stupor, thus preventing any further attempts by Gracey for the remainder of the night. A week earlier, Martha was not so fortunate. On Christmas afternoon while her husband was away from home, Gracey walked into Martha's bedroom and told her to consent to his wishes, which she refused to do. The only family members in the house were her three children, all under th e age of seven. After a struggle, Gracey forced her onto the bed and pulled up her clothing and raped her. After raping Martha, Gracey tried to persuade her to accept twenty-five dollars to keep quiet about the incident. Though Martha refused to accept the money Gracey left it at her house. As soon as her husband arrived home, she told him that Robert Gracey had raped her. "My husband told me I better not say anything about it unless he abused me again." Though it is not entirely clear why Martha's husband took a watt-and-see attitude toward the rape, the fact that they took Gracey's twenty-five dollars and spent it suggests that the money influenced his attitude. In the 1860 census, Sydney is listed as a boatman which means the winter months taxed the family's finances the most. Maybe financial considerations outweighed his desire to confront Robert Gracey in a court of law. Only after the second incident and at the urging of friends, did Martha report the rape. This incident discloses that even when women w ere eager to press charges, the decision to do so usually depended on the approval of husbands or fathers. (54) Threats of retaliation by attackers, a desire to protect one's reputation, and an understanding that the court rarely found sexual aggressors guilty discouraged husbands and wives from filing complaints. Husbands and parents also hesitated to take action when the rapist was economically linked to the husband or family as landlord, creditor, or boss.

Many of the affidavits speak to this issue because more often than not, the judge or lawyer examining the victim pointedly questioned why the complaint was not brought right away or after the first of several attacks. Women's testimony also expressed the frustration at being coerced into silence for the sake of the family's or husband's reputation or economic well-being. In almost half of the cases victims waited at least two weeks before pressing charges. One third of the victims waited more than a month to bring charges before the court. Almira Hayes told the examiner that her daughter, Sarah Jane Hayes, "complained to me frequently. Mr. Hayes objected the first time to making complaint if he didn't do it again. She [Sarah Jane] wanted to go and make a complaint." However, Sarah's father was worried not only about the reputation of his family and daughter. "He said Ryan was a very ugly tempered man and he might do us great injury." Mrs. Hayes explained that they presently did not have their own place and th at Ryan actually worked for her husband for three days. (55) The Hayes family's fear of Ryan, economic insecurity, and a desire to preserve their daughter's and family's reputation worked against Sarah pursuing her decision to file a complaint.

The influence of fathers and husbands, not only attackers, on discouraging women from overcoming their own trepidation over bringing legal actions was further compounded by male employers. Martha Wright swore out a complaint against John Harris, a houseguest of Mr. Hogle, her employer, for assault and battery with an attempted rape. The Hogles provided a mattress in the kitchen for Martha Wright's sleeping quarters, which left her vulnerable to Harris's advances on the night of April 8, 1851. She appealed to the Hogles to let her spend the night on their bedroom floor; they refused but agreed to leave their door ajar. Later that night, Harris accosted the servant in the kitchen and she called loudly several times for assistance. Mr. Hogle refused to get out of bed, but told her that Harris would not hurt her. When she continued to complain, she told the court "he [Hogle] told me to go back to bed and not act like a deviled fool." Martha's testimony suggests Hogle's complicity in the assault on Martha rather t han negligence. When Wright cried for help, Harris told her to "holler" all she wanted since "Mr. Hogle knew all about it." (56)

Mr. Hogle's wife, Hannah, provided the only assistance she could, given her husband's intransigence. She gave Martha a quilt to wrap herself up in and protected her from John Harris's attempts to pull her clothes up. Whether Martha decided to file a charge against Harris a week after the incident on her own accord, or after encouragement from others remains unclear. It appears that Harris's actions the following day probably prompted the charge, for Harris followed Martha up the stairs with "his person exposed saying he would screw her." "She struck him with a brush and pushed him off." Harris told her "he would screw her well if he did not then he would do it some other time." Martha also claimed that Harris indecently "exposed his person" in the presence of Hogle's wife. (57) The affidavit lists Hannah Hogle as a witness for Martha. Perhaps Mr. Hogle agreed with his wife's actions once he realized that she too could be a victimized by Harris. Otherwise, both women took the initiative to bring John Harris to account. The Harris case displays both the obstacles women faced as well as their agency in situations where they generally lacked familial and institutional power regarding their physical and sexual safety.

The discourse of witness examinations discloses how tough the criteria for gaining a conviction for rape and attempted rape could be. The court always insisted on knowing four things: 1) Were the assailant's pantaloons undone or "his person exposed?" 2) Did the attacker specifically use indecent language to express his intentions? 3) Did the assailant use force and did the victim resist? 4) And did the victim have a social relationship with the assailant? For example, Margaret Hamilton's examiners wanted to know how far John Kelly entered her body and how far her clothes were pulled up. Examiners asked Margaret Chase if she knew about Charles Murphy's reputation as a bad character and whether she drank some of the alcohol he offered her. Victims knew that their success in court depended on proving both their non-consent and the use of force to subdue their will. They usually described the sexual aspect of the crime in brief statements such as "he had connection with me," or "he had his will of me," or "he ent ered my body with his person." (58) As Gathrine Walker asserts in her study of sexual violence in early modern England, "The success of a rape tale depended upon the responses of those who heard it," (59) Victims did not repress their memories of the actual rape or resort to metaphors as much as they geared their descriptions to the court's line of questioning. Examiners wanted proof of intent, overpowering force, and non-consent more than the actual details of sexual violation. Thus, victims described screaming, hollering, and struggling with all their strength to get free of their assailants. Margaret Hamilton said that John Kelly told her " if she would not give him what he wanted he would run the knife right through her." (60) Similarly, Margaret Chase recounted that Charles Murphy threatened to kill her if she did not get back in the house and to "split my brains out or my head open." (61) However, even threats of violence and the brandishing of weapons did not guarantee a conviction. In four instances w here weapons were used against the victim only one resulted in a conviction. In three of the four cases of rape where women succeeded in prosecuting their attackers, overwhelming force was evident. One woman was gang raped, another gagged and restrained, and the third was an older women for whom the threshold of proof of overpowering force was probably less strict due to her age. (62) Along with extreme force and clear indications of non-consent, a women's marital status also affected the outcome of sexual assault charges. Of the cases in which information is available, seven of the thirteen victims of sexual assault were married and six were single. More significantly, three out of the four rapes and two out of the three attempted rape convictions were charges brought by married women.

The difficulties women faced in bringing their assailants to justice and proving rape before the community and the court of law certainly suggest that a significant number of sexual attacks went unreported and unprosecuted. As Table 5 indicates, most women who pressed charges for rape or attempted rape were rarely successful. In Essex County 67% of rape and attempted rape cases ended in acquittal. A brief survey of conviction rates for sexual assaults culled from research on crime in America, England, and Canada indicates that 66% of the time women failed to gain a conviction for rape or attempted rape. The 1790-1933 sample of New York cases reveal a conviction rate of 28%. (63) Interestingly, the New York State Police 26% conviction rate for sexual assault stands in stark contrast to their over 90% average conviction rate for all crime between 1918 and 1933. (64)

While sexual assault represented a small percentage of all reported crimes in Essex County, nearly half of all reported violence against women was sexual in nature. (65) Rape did not exist on the margins of society nor were rapists necessarily the "waste of patriarchy." (66) Eight of the assailants knew their victims and lived very close by. In fact, in only two cases were the assailants described as unknown to the victim. Robert Gracey Junior, who raped Mary Ann McFarlan and Martha Knights, continued to live next to his victims ten years later, as did Tacy Shaw's assailant, Edward Talbot. Rapists and their victims were not marginal, but representative of the Essex County population. Some were indeed rootless men and women, like Lewis Nixon, John Fallon, Margaret Hamilton, and Martha Wright, never appearing in the census or town histories. While the majority of the assailants were listed as laborers, they were not part of a criminal youth subculture or men without ties to the community. Robert Gracey, for ins tance, is listed in the 1850 and 1860 census as a farmer living with his eighty year old father. Edward Talbot, a farmer, along with two other accused rapists, John A. Arthur and John Harris, businessmen, are noted in Smith's History of Essex County as notable merchants. Talbot is designated a "prominent man in the community." The age range of assailants further suggests that this was not a crime confined to young men. Assailants ranged from seventeen to seventy-four and their victims from seven to sixty-seven years old. (67)

Because many rapists were not marginal or outsiders, but neighbors, acquaintances, and employers who often worshiped in the same churches, patronized the same business, and walked the same footpaths, as their victims, women met with less success in the court room. While the depositions of sexually assaulted women emphasized physical resistance, non-consent, flight from the scene of the crime, and seeking and crying out for help, they also contained facts which undermined their credibility. Because women usually knew their assailants, the incident happened in or near the home, charges were not lodged immediately, and assailants offered money or gifts, the onus was on the victims to prove that their actions before, during, or after the attack did not imply consent. (68) A woman's non-consent could be revoked. As exemplified by the experiences of Martha Knights, Sarah Jane Hayes, and Martha Wright, the court often construed a woman's consent through the actions of husbands, fathers, and employers. Judges and jur ies also perceived a woman's implied consent in situations where she unknowingly allowed an assailant into her home or voluntarily agreed to take a walk or carriage ride with the defendant. (69) Women had the triple burden of proving that they did not consent in word or deed, or that consent did not derive from their fathers' and husbands' conduct or from the geography of the sexual assault. Therefore, the discourse of sexual assault in Essex County suggests that even when women were able to provide convincing proof that they were physically and sexually assaulted despite prolonged resistance, they rarely secured convictions because of the broad interpretation of consent employed by the Essex judges and juries. The triple burden of proving non-consent in conjunction with the legal fictions entrenched in the rules of evidence, and familial constraints, gave the advantage to the accused in rape and attempted rape cases.

III

The testimony from the Bishop trial and those of numerous victims of sexual assaults disclose significant toleration of violence towards women in Essex County. However, similar to wife murder, prosecutions of assaults against women underwent dramatic changes in the 1830s. Prior to the 1830s, Essex County heard very few cases of assault and battery against women. Only eight of the thirty-five cases of assault against women resulted in court action during this period. (70) In Clinton County, Essex County's northern neighbor, spouse abuse cases only appear in the records after 1834. (71) The rarity of prosecutions for assault against women suggests that violence against married and single women was widely underreported prior to 1830 and that the court preferred to avoid interfering in family disputes. Changes in the 1830s also suggest that new concepts of marital relations and a growing intolerance towards violence reflected in campaigns against the death penalty, public executions, and corporal punishment, impa cted the way the community and courts handled violence against women. Indictments for assault and battery committed against women rose from 9.5% of all reported assault and battery cases prior to 1830, to 33% of all reported cases between 1831 and 1860. The pattern of reported crimes suggests that women became more willing to press charges against men for all types of violence, as indicated by increases in indictments for rape and assault and battery charges after 1830. Thus, the sizeable increase in violent crime detected in the indictment records was partially due to an increase in women taking men to court. (72)

The interest of the court and the community in prosecuting assaults against women, however, was also rooted in the impact of the temperance movement on the counties in northern New York. From its early beginnings in 1808 in Moreau, New York with its message of voluntary abstinence from distilled beverages, the temperance movement by the early 1830s claimed a membership of 40,000 and twenty-nine county societies. With the growth of the movement came a more radical agenda of teetotalism and a concerted campaign to end the state's liquor licensing system through local option legislation and eventually state prohibition in the 1850s. (73)

Changes in arrest patterns in both Essex and Clinton County reflected the influence of the temperance movement in northern New York. In Essex County the court only began to hear alcohol related cases in the 1830s. From 1830 to 1860, the court heard a total of forty-seven cases representing 6.5% of all criminal indictments for the period considered in this study. (74) In Clinton County the courts did not begin to hear alcohol related cases until the 1840s. However, from 1840-1867, 467 people were prosecuted for crimes involving alcohol. Significantly 27.5% of the convictions in Clinton County between 1816-1867 pertained to enforcement of public intoxication and breach of excise laws as compared to approximately 21% for assault and battery. (75) As early as the 1810s, temperance poems and tales began appearing in the region's newspaper, the Plattsburgh Republican, proclaiming the negative effects of alcohol on the family and community. Interestingly, the transition from moral suasion to legal measures by the te mperance movement in the 1830s coincided with the rapid growth of the foreign born population in northern New York and the prosecution of wife beating and public intoxication cases. (76) While the surviving court records provide little insight into the ethnic background of many of the assailants, it is likely that the temperance literature which connected wife beating and child abuse to intemperate husbands and fathers influenced the courts and the community's interest in prosecuting these crimes. Men like Michael Granger in Clinton County seemed to offer proof of temperance advocates' claims that intemperance led to wife beating and criminal behavior in general. Granger, who was arrested nineteen times between 1847 and 1864 in Plattsburgh, was charged three times for spouse abuse, twice for assault and battery, eleven times for public intoxication, twice for vagrancy, and once for failing to pay a bond. (77)

The underlying implication embedded in the temperance message, that sober men did not beat their wives, ignored other factors in wife abuse cases. As Jerome Nadelhaft notes in his study of antebellum temperance literature, "no other causes of wife torture other than alcohol" were considered and "neither the beatings nor the results were described in detail." (78) The temperance movement's connection between sober husbands and harmonious marital and family relations, though admirable and applicable in many cases, did not displace the primacy of gender prescriptions in the community and in the court's perception and handling of these cases. As the Bishop and Gibson murder trials indicate, wife beating continued to be a largely underreported crime despite the new scrutiny directed towards intemperate men. More importantly, beyond alcohol abuse, a web of social and economic stresses triggered men to beat and sometimes murder their wives.

Robert L. Griswold's study of nineteenth century divorce suggests the continued prevalence and numbers of unreported wife beating cases in America. "From 1867 to 1906 wives received 218,520 divorces because of cruelty ... between 1867 and 1871, 18 percent of divorces granted to wives were on the grounds of cruelty; that figure for the years 1902-1906 was 29 percent." (79) Also, Myra Glenn's research on campaigns against corporal punishment in antebellum America shows that between 1860 and 1878 "a significant percentage of divorces were for intolerable or extreme cruelty. Out of the 7,233 divorces granted during this period for a variety of reasons such as adultery, impotency, drunkenness, and desertion, 2,949 were for cruelty, 375 for extreme cruelty, and 223 for cruel and abusive treatment." (80)

Notwithstanding their disadvantages before the law and within society, women were not passive victims. They fought off their attackers, they stood up and testified on behalf of their friends and neighbors, and used their limited resources to protect themselves. Deborah Hayes's testimony against James Bishop, Margaret Chase's flight from a would-be rapist with a butcher knife in her hand, and Martha Wright's unremitting demand for help from her employer in fending off the sexual attack of a houseguest, reveal that male authority was consistently contested. Women also contested male authority by leaving their husbands. Between March 1817 and October 1819, the Plattsburgh Republican carried eleven different notices of men claiming their wives had eloped from bed and board and that they would no longer be responsible for any debts their spouses accrued. In one case a women responded in the newspaper to her husband's elopement notice by calling him a villain and stingingly remarking on his inability over the years of their marriage to provide her with proper bed or board. In another instance, a woman sought to get the newspaper to print a notice attacking the character of a prominent Plattsburgh citizen, Doctor William Beaumont. The newspaper not only denied the woman's request, but also attacked her character. (81)

While verbal assaults against male authority drew mixed reactions, deadly violence by women against male authority was often considered inconceivable and illegitimate. When Rachael Adams and Hannah Carpenter in 1831 tried unsuccessfully to kill Cyrus Carpenter Junior with an ax the court did not convict the wife for attempted murder, but her friend. Hannah received no punishment and Rachael received two years hard labor in Mount Pleasant prison. Apparently, the Essex court viewed Hannah and Cyrus as victims. (82) Unlike incidents of wife beating where violence by husbands though not condoned, was tolerated in a paradigm of justifiable enforcement of male authority, murderous wives who employed overtly violent means did not fit popular conceptions. When wives did kill family members, the public pictured women like Mrs. Lyman Sperry who poisoned herself and five children in 1819 in the town of Malone. The newspaper reported that Mrs. Sperry had been deranged for some time. Such cases did not raise the controver sial possibility that women would rationally confront male authority with overt physical violence. Thus, female aggression was constructed to accommodate community gender assumptions. (83)

A brief examination of prison pardons for violent crimes in New York by Governor Dewitt Clinton illustrates the perceptions of women's violence in antebellum New York. Clinton approved 2,289 pardon requests in his eight years as governor, but rarely pardoned women convicted of violent crimes. (84) Of the 875 prison pardons from 1819 to 1823, thirty-four went to women, but only two were for crimes of violence--a wife convicted of attempting to poison her husband and a black women who was found guilty along with a male relative of assault and battery with intent to kill. With the exception of one case of bigamy, women who received pardons had been convicted of money and property crimes. The pattern of pardons indicates that grand larceny, for which twenty-eight women were pardoned, was the one category of offence worthy of clemency. Male criminal pardons in New York State for the same period covered the whole range of violent crimes. Sixty-four men were pardoned for violent crimes: one murder, eight manslaughte rs, fourteen attempted murders, ten rapes, nineteen attempted rapes, three assault and batteries, eight arsons, and one poisoning. (85)

When women did press charges for assault, their marital status played a key role in influencing the penalty levied by the court. Though it remains unclear in a majority of the cases whether the victim or the victim's family or friends reported the incident, the court tended to impose stiffer sentences on men who beat their wives than on those who attacked single women. Men who beat their wives usually received time in the county jail, whereas men who assaulted single women almost always received fines. In Clinton County, a similar pattern prevailed. Of the thirty-three men convicted of spouse abuse between 1816 and 1867, sixteen received time in the county jail, six received time in the county jail and a fine, and eleven received only a fine. (86) As with cases of rape and attempted rape, single women usually ranked below married women in the eyes of the law and the sentences reflected this distinction. While the temperance movement mobilized public concern about wife beating, violence against single women wa s virtually ignored by reform groups. Though seventeen of the thirty-seven victims of assault and battery found in Essex County indictment records appeared to be single women, sentences handed down by the court reflected the priority of the law and the community in maintaining the soundness of the institution of the family. (87) Lighter penalties imposed on assailants of single women reinforced the cultural entitlement many men may have felt to discipline or even sexually assault young unattached women. They also served as a warning against female autonomy. No longer considered children, though of marriageable age, adult single women, nominally under the authority of their fathers, pressed their complaints against assailants with little success. For example, when Archibald Key was found guilty for assaulting Jane Walton, he was fined only ten dollars. (88) While the court viewed Key's attack on Jane Walton as grievous, it represented less of a threat to male authority than marital violence, which threatened t o erode the very foundations of the county's communities.

The court's practice of sentencing wife-beating husbands to time in the county jail or charging them hefty fines did not necessarily curb violence against married women by their spouses. The different attitude of the court toward violence against wives and against single women represented the maintenance of male family authority, rather than a higher regard for married women's credibility. As with the Bishop murder case, the severity of the punishment against married men represented a penalty not for the resort to violence alone, but also, because it symbolized a breakdown of family authority which weakened the community.

Married women may have endured more hardship than single women because of their marital status. On June 18, 1846, when Betsey Cook told the Moriah village Justice of the Peace James R. Edgerton how her husband Patrick Cook beat her four days earlier, the judge fined her husband forty dollars and sentenced him to forty days in the common jail. Five years earlier, Patrick had also been accused of assaulting Betsey and received a twenty-dollar fine for his abusive behavior. (89) Since Patrick Cook's name appears in the records for these two incidents alone, there is no way to know if he committed violence against Betsey in the intervening years. in fact, very few men ever appear before the court for abusing their wives more than once. Sentences imposed on married men suggest that the rarity of repeat judgments against wife beaters originated chiefly from the financial not the reformative effects of sentences on the family.

The forty-dollar fine levied against Patrick Cook reduced family resources and so forced his wife and children to share his sentence. Rather than encouraging men to reform their violent behavior, the financial penalties of sentences discouraged women from bringing complaints of abuse before the court. Not only did the penalty hurt the family's livelihood, it reinforced and reminded women of their role as dependents. Additionally, this form of punishment sometimes provoked husbands to further violence against their wives, as a result of the financial loss, public humiliation, and the affront to familial authority represented by incarceration. So long as they remained married, abused wives shared their husband's penalty and reaped few benefits from the legal system. Conviction personified the court's desire to keep domestic affairs within the confines of the family and to pressure husbands and wives to fulfill their respective prescribed gender roles.

IV

Changes in the law of rape, increased publicity and prosecution of wifebeating, and the execution of many and imprisonment of most wife murderers did not result in less brutality against women after 1830. The thirty-five assaults, twelve rapes, thirteen attempted rapes, three incidents of incest, one attempted murder, and three murders--clearly illustrate that women endured an increasing rate of intimidation and violence in Essex County in the first half of the nineteenth century. As Table 5 indicates, sexual assaults rose from eight before 1830 to twenty-three from 1831 to 1860. Deadly violence against women also increased after 1830, rising from zero to four (three murders and one attempted murder). (90) Overall, violence against women increased from 1 indictment per every 763 people prior to 1830, to 1 indictment per every 541 people from 1831 to 1860. Conversely, reported violence against men decreased from 1 indictment per every 123 people prior to 1830, to 1 indictment per every 348 people from 1831 to 1860. After 1830 reported violence against women increased 25% while reported violence against men declined. (91) Additionally, if one reads the witnesses' examinations, trial transcripts, and coroner's inquests for violent crimes it is clear that the rate of unprosecuted and unreported violence against women was also substantial. Often wives, in taking their husbands to court for wife beating, or witnesses in testifying in murder trials disclosed a pattern of violence culminating in the pressing of a single criminal charge. Even in cases of sexual assault, victims often described more than the one incident of violence by their assailant.

The increase in indictments for murder, sexual assault, and assault committed against women in Essex County after 1830, though partially due to the increased willingness of women to file criminal charges, also represented a continuing pattern of pervasive violence. The evidence from trial transcripts and witness examinations from cases tried after 1830 frequently describes episodes of unreported violence. For example, the court records indicate that Sarah Jane Hayes, Martha Knights, Hester Bishop, and Isabella Gibson endured a total of nine unprosecuted violent assaults. Additionally, the meager number of sexual assault convictions in Clinton County Court records suggests that these types of cases continued to be widely underreported. The more populated Clinton County handed down only three convictions, one for rape, one for attempted rape, and one for incest. (92) The references to unprosecuted violence in court documents, the rarely successful prosecution of rapists and would be rapists, and the financial a nd physical consequences for wives that brought charges against their violent husbands, suggest that many women continued to view the court as a last resort for redress.

The increase in violence against women in the first half of the nineteenth century was directly linked to the restructuring of family relations during this period. With the decline in traditional patriarchy came a more virulent emphasis on female sexual fidelity and greater idealization of family harmony. I believe that one largely contributed to the new trend in wife murder and femicide and the other coincided with and reinforced the temperance movement's campaign against alcohol and wifebeating. However, the idealization of the affectionate family and companionate marriage by temperance reformers and lawmakers worked to the continued disadvantage of rape victims. Whereas wifebeating prosecutions represented a defense of family stability, and had become closely associated in the public mind with intemperance, sexual assault was virtually ignored by social reformers. Because rapists were neighbors, friends, acquaintances, and relatives who generally lived and worked in the community, claims of rape challenged the very stereotypes which undergirded community identity. Unlike murder, which represented an aberration of normal society or wifebeating that could be attributed to intemperate men overstepping the bounds of familial authority, rape required a reevaluation of male sexual authority. For reformers and lawmakers, rape raised the troubling questions of female autonomy, consent, and desire which threatened to undermine the very family values they sought to preserve.

This new emphasis on family stability on the one hand led to stronger prosecution of wifebeaters and severe sentences for many wife murderers, while on the other hand it made marital status a significant factor in a woman's success in the criminal courts. Violence against unmarried women resulted in fewer convictions and lighter sentences in cases of rape, and assault and battery. Sentences for homicide in Albany County suggest that this may have held true even in cases of murder. Between 1840 and 1860, three of the twelve cases of wife murder ended in a sentence of death, while none of the five cases of involving the killing of single women drew the ultimate punishment. Four of these men were convicted and sent to prison, one for life and the other three for terms of two to four years. (93) As indicated by the trends in wife murder and femicide in Albany County, New York and northern New England, violence against women in Essex County appears to be representative of broader patterns of crime in the region. F or example, Roth's analysis of divorce in Windsor County Vermont indicates that despite the new focus on wifebeating, domestic violence continued to remain unreported. He found that between 1793 and 1861 only four of the spouses accused of intolerable severity were ever prosecuted for assault. (94) An analysis of prisoners in New York's Auburn state prison in 1850 also discloses that rapists were not young or marginal, but indeed, like their counterparts in Essex County, representative of the general male population. Of the forty-five men serving time for rape, half were twenty five years old and above when they were convicted, over half were listed as skilled tradesmen and farmers, and over half were born and raised in New York. (95)

In conclusion, I would argue that women in Essex County failed to gain stronger redress and protection in the criminal courts from 1790-1860 due to the persistence of patriarchal ideals in the criminal law. Studies of the nineteenth century civil law pertaining to marriage, divorce and the family reveal similar findings. For example, Norma Basch in her study of the New York Women's Property Acts, discloses that the legal fiction of marital unity which undergirded the laws of coverture continued to inform judges' rulings. (96) Also Michael Grossberg's research on the emergence of American family law and judicial patriarchy confirms the dominant conservatism that informed judges' decisions. Grossberg argues that "judges remade the law to aid wives and mothers in performing their domestic chores while at the same time they used their powers to check radical alterations in the subordinated legal status of married women." (97) Both the Basch and Grossberg studies suggest that patriarchy retained a strong hold in t he law.

I believe the persistence of the core tenets of traditional patriarchy in the law was much more broadly based. The evidence in this study suggests that idealization of the family relations and the strong emphasis on women's sexual fidelity and virtue after 1830, not only led to a bifurcated system of justice which punished assailants of married women more severely and consistently than those of single women, but also to emergence of a modified patriarchy--sexual patriarchy. Sexual patriarchy is the desire and insistence by fathers, husbands, and sometimes employers that they have a right to control, regulate, and to defend when possible their daughters', wives' and servants' sexuality and, despite changes in the law, the courts seem to uphold the principles of this ideology in rendering judgments. Arguably, the survival of sexual patriarchy was largely responsible for the disparity between the changes in law and the absence of more rape convictions in Essex County. Though women sometimes successfully challeng ed their husbands', fathers', and employers' authority, the patriarchal ideal was still highly regarded by heads of households, even the most destitute. Regulation and control of a woman's sexuality constituted the one facet of traditional patriarchy that men were most reluctant to concede. The era which witnessed the first women's rights movement and the passage of the married women's property acts also witnessed the emergence of anti-abortion, anti-birth control, and anti-prostitution campaigns. Each of these campaigns shared one central principle, control of women's sexuality. If we add to this list the "unwritten law," which recognized that husbands, fathers, and brothers could justifiably kill an alleged libertine who had been sexually intimate with the defendant's wife, sister, or daughter, it is clear that many men, no matter how accepting of changes in the law, the family, and social customs, identified with the basic tenets of sexual patriarchy.

Table 1

Ratio of Indictments to Average Population, Essex County, NY, 1799-1860

Total indictments 251 Average Population 1799-1830 11445 = 1 per 45
 1799-1830
Total indictments 465 Average Population 1831-1860 28154 = 1 per 60
 1831-1860

Source: Essex County Criminal Indictment Records, 1799-1860
Table 2

Percentage of Violent Crime in Criminal Caseload, Essex County, NY,
1799-1860


Total violent crimes 108 Total indictments 1799-1830 251 = 43%
 1799-1830
Total violent crimes 134 Total indictments 1831-1860 465 = 29%
 1831-1860

Source: Essex County Criminal Indictment Records, 1799-1860
Table 3

Conviction Rate For Sexual Assaults, 1300-1933

 Sexual
Author Region Period Assaults Convictions

Hanawalt England 1300-1348 70 8
Rowe & Marietta PA 1682-1801 96 32
Lindemann MA 1698-1797 40 26
Block British N. America 1700-1820 672 278
Simpson London 1730-1830 375 89
Arnold NY City 1790-1820 48 18
Moore Essex County, NY 1799-1860 25 5
Dubinsky Ontario, CA 1880-1929 348 170
NY State Police NY 1918-1913 1309 338
Total 2983 964


Author Percentage

Hanawalt 10%
Rowe & Marietta 33%
Lindemann 65%
Block 41%
Simpson 24%
Arnold 38%
Moore 20%
Dubinsky 49%
NY State Police 26%
Total 34%

Source: Essex County Criminal Indictment Records, 1799-1860
Table 4

Familial Status of Female Assault and Battery Victims, Essex County, NY,
1799-1860

 Single/
Victim Wife Daughter Family Non-Relation

A&B Against Women by Men 1799-1830 3 2 3
A&B Against Women by Women 0 0 0
 1799-1830
A&B Against Women by Men 1831-1860 10 14
A&B Against Women by Women 1 2
 1831-1860
A&B Against Family 1799-1830 1
A&B Against Family 1831-1860 1
Total 14 2 2 19


Victim Total

A&B Against Women by Men 1799-1830 8
A&B Against Women by Women 0
 1799-1830
A&B Against Women by Men 1831-1860 24
A&B Against Women by Women 3
 1831-1860
A&B Against Family 1799-1830 1
A&B Against Family 1831-1860 1
Total 37

Source: Essex County Criminal Indictment Records, 1799-1860
Table 5

Violent Crimes in Essex County, NY, 1799-1860

Crimes 1799-1830 1831-1860 Totals

Assault 4 22 26
Assault & Battery 79 58 137
AB & Intent to Kill 4 14 18
AB & Riot 4 0 4
AB & Intent to Kill 0 1 1
AB & Intent to Maim 0 2 2
AB & Intent to Rape 4 11 15
Rape 4 9 13
Incest 0 3 3
Battery 1 0 1
Murder 1 5 6
Manslaughter 1 2 2
Riot 6 8 14
Total 108 134 242

Source: Essex County Criminal Indictment Records, 1799-1860
Table 6

Percentage of Violent Crime by Sex, Essex County, NY, 1799-1860

 All Reported
Violent Crimes Against Violent Crimes in

Women 1799-1830 15 (14%) 1799-1830 108
Men 1799-1830 93 (86%)
Women 1831-1860 53 (39%) 1831-1860 134
Men 1831-1860 81 (61%)
Total Violent Crime 1799-1860 242

Source: Essex County Criminal Indictment Records, 1799-1860

ENDNOTES

(1.) In New York State public executions were abolished in 1835. For more on the rise of private executions and the anti-capital punishment movement in New York State and the United States see Louis P. Masur, Rites of Execution: Capital Punishment and the Transformation of American Culture, 1776-1865 (New York, 1989); Philip English Mackey, Hanging in the Balance: The Anti-Capital Punishment Campagn in New York State, 1776-1861 (New York,1982).

(2.) "Execution of JAS. S. Bishop," Essex County Times & Westport Herald (hereafter cited as ECTWH), 22 March 1843. In addition to the reprint of the scaffold speech, the paper also advertised the publication of a pamphlet containing the trial transcript, Bishop's life story and confession. Unfortunately, no copies of this pamphlet have survived. For more on crime literature in the 18th and 19th century see Daniel A. Cohen, Pillars of Salt, Monuments of Grace: New England Crime Literature and die Origins of American popular Culture, 1676-1860 (New York, 1993); Daniel E. Williams, Pillars of Salt: An Anthology of Early American Criminal Narratives (Madison, Wisconsin, 1993); For an analysis of crime literature which utilizes a gender and class analysis see Amy Gilman Srebnick, The Mysterious Death of Mary Rogers: Sex and Culture in Nineteenth-Century New York (New York, 1995).

(3.) See David Peterson del Mar, What Trouble I Have Seen: A History of Violence against Wives (Cambridge, Ma, 1996). Elizabeth Hafkin Pleck, Domestic Tyranny: The Making of Social Policy against Family Violence from Colonial Times to die Present (New York, 1987). Linda Gordon, Heroes of Their Own Lives: The Politics and History of Family Violence, Boston, 1880-1960 (New York, 1988).

(4.) See Sharon Block, "Coerced Sex In British North America, 1700-1820." Unpublished Ph.D. Dissertation (Princeton, 1995). Marybeth Hamilton Arnold, "'The Life of a Citizen in the Hands of a Woman': Sexual Assault in New York City; 1790 to 1820," in Passion and Power: Sexuality in History, Kathy Peiss and Christina Simmons, eds. (Philadelphia, 1989), 35-56. Barbara Lindemann, "'To Ravish and Carnally Know': Rape in 18th-Century Massachusetts," Signs (1984), 63-82. Randolph A Roth, "Spousal Murder in Northern New England, 1776-1865," in Over the Threshold: Intimate Violence in Early America, Christin Daniels and Michael V. Kennedy eds. (New York, 1999), 65-93.

(5.) See Lyle Koehler, A Search for Power: The 'Weaker Sex' in Seventeenth-Century New Englond (Urbana, 1980). Christine Stansell, City of Women: Sex and Class in New York, 1789-1860 (New York, 1986). Myra C. Glenn, Campaigns Against Corporal Punishment: Prisoners, Sailors, Women, and Children in Antebellum America (Albany, NY, 1984). Cornelia Hughes Dayton, Women Before the Bar: Gender, Law, & Society in Connecticut, 1639-1789 (Chapel Hill, 1995).

(6.) See Patricia Cline Cohen, The Murder of Helen Jewett: The Life and Death of a Prostitute in Nineteenth-Century New York (New York, 1998). Srebnick, The Mysterious Death of Mary Rogers.

(7.) See Robert M. Ireland, "The Libertine Must Die: Sexual Dishonor and the Unwritten Law in the Nineteenth-Century United States," Journal of Social History, 23 (Fall, 1989), 29-44. Robert L. Griswold, "The Evolution of the Doctrine of Mental Cruelty in Victorian American Divorce, 1790-1900," Journal of Social History, XX (1986-1987), 127-148.

(8.) See Daniel A. Cohen, "Homicidal Compulsion and the Conditions of Freedom: The Social and Psychological Origins of Familicide in America's Early Republic," Journal of Social History 28 (Summer 1995), pp. 725-764. Roy Porter, "Rape--Does it have a Historical Meaning?" In Sylvana Tomaselli and Roy Porter, eds. Rape An Historical and Cultural Enquiry (Oxford, 1986), pp. 216-236. Arnold, "'The Life of a Citizen in the Hands of a Woman.'" Pleck, Domestic Tyranny, 7-9. The "Family Ideal" consisted of three tenets: domestic privacy, parental and conjugal authority, and preservation of the institution of the family.

(9.) Indictments for all violent crimes in the Essex County dropped 14% after 1830. This calculation is based on all the indictments, 1799-1860 found in the Essex County court records (hereafter cited as ECCR). By justifiable violence I am referring to court cases when judges and juries seem to have based their rulings and verdicts on the belief that the assailant's violence may have been provoked by the victim's actions. The definition of violence I use in this study refers to all forms of physical attack and any type of threat of violence against women. Therefore, rape, attempted rape, incest, child abuse committed against women, assault, assault-and-battery, attempted murder, and murder are all encompassed in this definition.

(10.) The compilation of rapes, attempted rapes, murder, and attempted murder utilized in this research is derived from an examination of all these specific crimes found in the Essex County Clerk's office indictment records for the Court of General Sessions, Special Sessions, and Oyer and Terminer from 1799 to 1860. Supporting documentation is drawn from witness examinations, trial transcripts, and conviction certificates. Assault and assault and battery incidents against women are drawn from all the indictments handed down from 1799-1840 and a sample of conviction certificates. The remainder of assault and assault and battery cases for the period 1840-1860 is sampled from both conviction and indictment records. The overview of all crimes committed against women and men in Essex County is based on systematic quantification of all indictments handed down by the various county judges during the entire period.

(11.) Table 1, Ratio of Indictments to Average Population, Essex County, NY, 1799-1860. The population averages in this table are utilized throughout this study to calculate the ratio of violent crimes to population for the periods 1799 to 1830 and 1831 to 1860.

(12.) Table 2, Percentage of Violent Crime in Criminal Caseload, Essex County, NY, 1799-1860.

(13.) The court records document seven violent deaths, four men and three women between 1799-1860. Only five of the alleged assailants came before the court charged with murder. Among these five cases, the jury acquitted three defendants of all charges. The only man to be acquitted for murdering his wife was Joseph Stroud in 1848, despite testimony given by the coroner at the inquest that the physical evidence indicated that Joseph clubbed his insane wife Mary Ann to death.

(14.) Roth, "Spousal Murder in Northern New England," 71.

(15.) George Rogers Howell and Jonathan Tenny, History of the County of Albany, N.Y., From 1609 to 1886 (New York, 1886), 304-309. Many of the non-wife murder cases dealt with the murder of unmarried women. This analysis is based on 138 cases of homicide listed in the Albany County history for the years 1782 to 1884. Even though 29 of the cases listed do not give the victim's name, sex or race, the heavy concentration of femicide and specifically wife murder clearly shows a dramatic shift in deadly violence between 1840 and 1860.

(16.) William Hayes deposition, People v. James Bishop (Jan. 1843), Essex County Court Records (hereafter cited as ECCR), Drawer T-2, Essex County Clerk's Office, Elizabeth-town, New York.

(17.) Clara Bishop deposition, People v. James Bishop (Jan. 1843), ECCR, Drawer T-2. For more on wife-beating see Del Mar, What troubles I Have Seen: A History of Violence Against Wives; Margaret R. Hunt, "'The Great Danger She Had Reason to Believe She Was In': Wife-Beating in the Eighteenth Century." in Women and History: Voices of Early Modern England, edited by Valerie Frith (Toronto, Canada, 1995), 81-102.

(18.) "Trial of James Bishop," ECTWH, 15 February 1843. The newspaper accounts and trial testimony both state that Hester unexpectantly disappeared from her home three different times, but do not disclose the circumstances surrounding Hester's second attempt to leave James. For more on the pattern of wives escaping from their abusive husbands see Leah Leneman "'A Tyrant and Tormentor': Violence Against Wives in Eighteenth and Early Nineteenth-Century Scotland," Continuity and Change 12 (1997), 31-54.

(19.) See Anne Spencer Lombard, "Playing the Man: Conceptions of Masculinity in Anglo-American New England, 1675 to 1765." Unpublished Ph.D. Dissertation (UCLA, 1998). Pleck, Domestic Tyranny.

(20.) James Bishop examination, People v. James Bishop (Nov. 1843), ECCR, Drawer T-2.

(21.) "Trial of James Bishop," ECTWH, 15 February 1843.

(22.) Ibid.

(23.) Ten witnesses testified at the Bishop trial, three women and seven men. Of the seven men, two were physicians who had performed the post mortern examination, three were the prosecution's witnesses, and the remaining two were witnesses called by the defense.

(24.) "Trial of James Bishop," ECTWH, 15 February 1843.

(25.) "Trial of James Bishop," ECTWH, 15 February 1843.

(26.) An 1841 justice of the peace manual describes second-degree manslaughter as "the killing of a human being without a design to effect death, in a heat of passion, but in a cruel and unusual manner, where it is not committed under such circumstances as to constitute excusable or justifiable homicide." Oliver L. Barbour, The Magistrate's Criminal Law: A Practical Treatise on the Jurisdiction Duty, and Authority of Justice of Peace in New York in Criminal Cases (Saratoga, NY, 1841), 60.

(27.) Ibid. Before moving to Chesterfield, the Bishops had lived in the nearby towns of Port Kent and Clintonville. The Plattsburgh Republican, a Clinton County newspaper which printed a short statement announcing that Bishop had been hanged, claimed that he was a recent immigrant from England. James Bishop is listed in the Essex County Naturalization records, Drawer R-27, as arriving in New York State from England in 1839.

(28.) "Trial of James Bishop," ECTWH, 15 February 1843.

(29.) James W. Darlington, "Peopling the Post-Revolutionary New York Frontier," New York History, 74 (October 1993), 357-360

(30.) United States Census of Population, Essex County, New York, 1820, 1830, 1840, 1850, 1860,1870, microfilm. Compendium of Local History; Being a Guide for the Educator and the Scholar to the History of Essex County, New York, (Essex County Historical Society, 1986), 15-16. United States Census Office, Compendium of the enumeration of the inhabitants and statistics of the United States: as obtained at the Department of State, from the returns of the sixth census, by counties and principal towns, exhibiting the population, wealth, and resources of the country, with tables of apportionment ... to which is added an abstract of each preceding census (Washington, 1841). United States Census Office, The statistics of the population of the United States: embracing the tables of race, nationality, sex, selected ages, a and occupations to which are added the statistics of school attendance and illiteracy, of schools, libraries, newspapers and periodicals, churches, pauperism and crime, and of areas, families, and d wellings compiled from the original returns of the ninth census, (June 1, 1870,) under the direction of the Secretary of the Interior (Washington, 1872).

(31.) "The Gallows in Essex County. Second Execution in its History," Essex County Republican (here after cited as ECR), 3 May 1883.

(32.) Smith, History of Essex County, 276.

(33.) People v. Charles Gibson, Coroner's Inquest, (June 1858), ECCR, Drawer R-18. Interestingly, Gibson appears not to have sought revenge against the men who sexually assaulted his wife. For more on husband's reactions to their wife's sexual dishonor see Ireland, "The Libertine Must Die: Sexual Dishonor and the Unwritten Law in the Nineteenth Century United States," 29-44; Hendrik Hartog, "Lawyering, Husbands Rights,' and the Unwritten Law in Nineteenth Century America," Journal of American History, 84(1997), 67-96.

(34.) Ibid.

(35.) Ibid.

(36.) Roth, "Spousal Murder in Northern New England."

(37.) ECR, "The Gallows in Essex County," 3 May 1883.

(38.) While sexual infidelity and jealousy were not the only motivations behind wife murders a substantial number of the cases I have come across in northern New York were motivated by these very issues.

(39.) See Ireland, "The Libertine Must Die," 29-30.

(40.) A New Conductor Generals: Being a Summary of the Law Relative to the Duty and Office of Justice of the Peace, Sheriffs, Coroners, Constables, Jurymen, Overseers of the Poor, &c. &c. (Albany, 1803), 390. These justice of the peace manuals summarized advice to prosecutors formulated in eighteenth century treatises. William Blackstone, Commentaries on the Laws of England. 4 vols. 1765-1 769, (reprinted Chicago, 1979); William Hawkins, A Treatise of the Pleas of the Crown.... 2d ed. 2 vols. 1724-1726, (reprint, New York, 1972).

(41.) See J.M. Beattie, Crime and the Courts in England, 1660-1800 (Princeton, NJ, 1986), 21.

(42.) ECCR, 1799-1860, Conviction Certificates.

(43.) People v. William Thompson (June 1837), ECCR, Drawer H-22. Thompson was tried and convicted for having sexual relations with his sixteen year old daughter Betsy on three separate occasions. Two other incest indictments that appear to have not resulted in convictions involved incest between a father and his fifteen year old daughter, and between a grandfather and a granddaughter. In the latter case, the names of the parties involved were left blank. People v. Alden Spooner (Jan. 1837) and People v. ? (September, 1834), ECCR, Drawer S-2,

(44.) Tacy Shaw Examination, People v. Edward Talbot (Jan. 1828), ECCR, Drawer S-I.

(45.) Ibid.

(46.) For a similar interpretation about seventeenth century cases, see Cornelia Hughes Dayton's, Women before the Bar: Gender, Law, & Society in Connecticut, 1639-1789 (Chapel Hill, N.C., 1995).

(47.) A New Conductor Generalis, 388.

(48.) Ibid, 389.

(49.) The Revised Statutes of the Stare of New York (Albany, NY, 1813), 550.

(50.) The Revised Statutes of the Stare of New York (Albany, NY, 1829), 663. Oliver L. Barbour, The Magistrates Criminal Law: A Practical Treatise on the Jurisdiction, Duty, and Authority of Justice of Peace in the State of New York in Criminal Cases (Saratoga, 1841), 65-7 1. Though Essex County recorded only one gang rape, instances of men assisting other men to perpetrate a sexual assault wete not atypical. In at least six cases, assailants had accomplices who helped to accost and restrain victims and in at least two other incidents received indirect assistance. In two cases the accomplices were never charged despite being implicated in the attack.

(51.) Ibid. The degree of physical rather than sexual violence seems to have been the logic behind the varying sentences for rape and attempted rape. Until the passage of the Sexual Assault Reform Act, February 1, 2001 drugging was prosecuted as a misdemeanor in New York State. Under the new law drugging is a felony with a maximum sentence of seven years.

(52.) Block, "Coerced Sex," 18-19.

(53.) Margaret Chase Examination, People v. Charles Murphy (September 1844), ECCR, Drawer T-2.

(54.) Martha Knights Examination, People v. Robert Gracey (March 1860), ECCR, Drawer R-18. United States Census of Population, Crown Point, Essex County, New York, 1860, 142. Without more information it is impossible to tell if Martha's husband felt he was compensated for the rape, that accepting the money was better than depending on the court for redress, or that he was afraid of or intimidated by Gracey. This was not the first time Gracey was arrested for rape. In 1854 he was tried and convicted for the rape of Mary Ann McFarlin his neighbor for which he served at least two years in state prison.

(55.) Sarah Jane Hayes Examination, People v. John Ryan (November 1849) ECCR, Drawer S-3. Ryan actually attempted to rape Sarah Jane at least three times over a one year period, twice in her home while her family was nearby.

(56.) Martha Wright Examination, People v. John Harris (April 1851), ECCR, Drawer S-3.

(57.) Ibid.

(58.) Margaret Chase Examination. Margaret Hamilton Examination, People v. John Kelly (June 1848), ECCR, Drawer T-2

(59.) Garthine Walker, "Rereading Rape and Sexual Violence in Early Modem England," Gender and History, 10, (April 1998), 4.

(60.) Margaret Hamilton Examination.

(61.) Margaret Chase Examination.

(62.) Peoplev. Henry Rousenbergh, John Matthews, James Eastwood (May 1821), ECCR, Drawer S-1. People v. Robert Gracey (November 1853), ECOR, Drawer T-2. People v. John Burke (January 1838), ECCR, Drawer S-2.

(63.) Table 3: Conviction Rate For Sexual Assaults, 1300-1933. This table is derived from the following studies: Barbara Hanawalt, Crime and Conflict in English Communities, 1300-1348 (Cambridge, Mass, 1979), 59. G.S. Rowe and Jack D. Marietta, "Personal Violence in a 'Peaceable Kingdon: Pennsylvania, 1682-1801'," in Over the Threshold: Intimate Violence in Early America, Christin Daniels and Michael V. Kennedy eds. (New York, 1999), 25. Lindemann, "'To Ravish and Carnally Know,'" 73,81. "Coerced Sex," 5,163. Anthony E. Simpson, "Vulnerability and the Age of Female Consent: Legal Innovation and its Effect on Prosecutions for Rape in Eighteenth-Century London," in Sexual Underwords of the Enlightenment, G.S. Rousseau and Roy Porter, eds. (Manchester, 1987), 188-189. Arnold, "'The Life of a Citizen in the Hands of a Woman,'" 37, 49. Karen Dubinsky, Improper Advances: Rape and Heterosexual Conflict in Ontario, 1880- 1929 (Chicago, 1993), 172-173. New York State Division of State Police, Annual Report of Division of State Police, 1918-1933. Albany, 1918-1933.

(64.) New York State Division of State Police, Annual Reports, 1918-1933. The incest conviction rate, which I have calculated separately, for the period 1918-1933, was 30%. During this period the New York State Police made 430,127 arrests. Only in 1918 and 1919 when the state troopers conviction rate totaled 84% and 86% respectively, did the total conviction rate fall below 90%.

(65.) Sexual assault indictments represented approximately 4% of the 716 indictments in Essex County, 1799-1860. Out of sixty-eight indictments for violent crimes against women, thirty-one were for sexual assault.

(66.) Porter, Rape, 235.

(67.) United States Census of Population, Essex County, New York, 1830, 1840, 1850, 1860. Smith, History of Essex County, 417,634. Other accused rapists, such as Jesse Lyons who is listed as a tax payer in the 1818 Crown Point assessment rolls, appear to have had more than marginal ties to the communities they lived in.

(68.) On textual analysis of rape narratives in court records see Garthine Walker, "Rereading Rape and Sexual Violence in Early Modern England," Gender and History, 10, (April 1998), 1-25. On rape and interpretations of a woman s consent see Anna Clark, Women's Silence, Men's Violence: Sexual Assault in England, 1770-1845 (New York, 1987); Marybeth Hamilton Arnold, 'The Life a Citizen in the Hands of a Woman': Sexual Assault in New York City, 1790 to 1820," in Passion and Power: Sexuality in History, edited by Kathy Peiss and Christine Daniels (Philadelphia, 1989), 35-56.

(69.) In three clear examples of these type rape scenarios, People v. Edward Talbor (Jan. 1828); People v. John Kelly (June 1848); People v. Daniel Moreau (Jan. 1831), ECCR, Drawers S-1, S-3, S-2, the victims met with little success in court. Of these three cases, one which included a rape, only the earlier mentioned Talbot case ended in conviction--a five dollar fine for assault.

(70.) Table 4: Familial Status of Female Assault and Battery Victims, Essex County, NY, 1799-1860. This table includes all non-sexual assaults except attempted murder, murder, and manslaughter. I have included assault and battery against families in this chart because in each case women were also victims. In one incident a husband and wife were attacked and in the other incident a husband, wife, and daughter were attacked.

(71.) Arrest, Conviction, and Deposition Records of Clinton County for the Years 1816 to 1867. Compiled by Robert Thompson, 1992. Here after cited as CCCR.

(72.) ECCR. The increase in reported violent crime against women appears to be both a product of victims pressing charges more frequently and an actual increase in violence against women. Indictments for assault and battery measured against population disclose a dramatic increase from 1 per every 1,431 people prior to 1830, to 1 per every 1,043 people from 1831-1860.

(73.) Jack Blocker Jr., American Temperance Movements: Cycles of Reform (Boston, 1989), 13. John Allen Krout, The Origins of Prohibition (New York, 1925).

(74.) ECCR.

(75.) CCCR. 395 of the alcohol violations were for public intoxication and 72 for breach of excise laws. In Essex County assault and battery accounted for 24% of total indictments for 1799-1860. The high percentage of prosecutions for alcohol related crimes in Clinton County suggest that support for enforcing temperance was stronger than in Essex County.

(76.) Between 1830 and 1835 the foreign born population for the county increased from 3% to 11%. United Stares Census of Population, Essex County, New York, 1830. Compendium of Local History, 15.

(77.) CCCR.

(78.) Jerome Nadelhaft, "Alcohol and Wife Abuse in Antebellum Male Temperance Literature," Canadian Review of American Studies," 25 (Winter 1995), 37, 33.

(79.) Robert L. Griswold, "Law, Sex, Cruelty, and Divorce in Victorian America, 1840- 1900," American Quarterly 38 (Winter 1986), 722.

(80.) Glenn, Campaigns Against Corporal Punishment, 65.

(81.) "Elopement," Plattsburgh Republican (Hereafter cited as PR), 12 December 1818. Untitled, PR, 19 June 1819.

(82.) Rachael Adams and Hannah Carpenter Indictments (September 1831), ECCR, Drawer S-2. Rachael Adams Conviction Certificate (September 1831), ECCR, Drawer H-22.

(83.) Untitled, PR, 26, June 1819. "Abstract of a letter dated Malone, Franklin Co. June 30, 1819," PR, 26, July 1819.

(84.) Lawrence M. Friedman, Crime and Punishment in American History (New York, 1993), 162.

(85.) New York State Prison Pardons, 1819-1822. Compiled by Linda Ogborn

(86.) CCCR. Unfortunately this compilation of criminal records does not give the name or sex of the victim. All wife beating cases are listed as spouse abuse and all other cases are labeled assault and battery. Therefore, it is impossible to use this extensive index of 1,687 conviction records to examine assault and battery against all women in the county. A sample of Essex County convictions for assault and battery against women reveals that five out of seven wife beaters received time in jail while five our of the six assailants of single women received fines as a punishment.

(87.) Table 6. This calculation excludes two cases where women assaulted other women not related to them. Also, because the Essex County court indictment and conviction certificates specified when an assault victim was the attacker's wife or child, or the wife of another man, I have made the assumption that those documents that deliberately leave out marital status refer to single women who are not related to the assailant.

(88.) Archibald Key Conviction Certificate (June 1841), ECCR, Drawer H-22.

(89.) Patrick Cook Conviction Certificates (August 1841, March 1847), ECCR, Drawer H-22.

(90.) Table 5, Violent Crimes in Essex County, NY, 1799-1860. The actual number of attempted rapes is lower than the number of indictments for attempted rape because in some cases there was more than one assailant charged for the same crime. During this period twelve women pressed charges for rape and thirteen for attempted rape. Of the 242 indictments for violent crimes 68 of the victims were women and 174 were men. 28% percent of all reported violent crimes were committed against women.

(91.) Table 6, Percentage of Violent Crime by Sex in Essex County, NY, 1799-1860. The average population break-down of Essex County by sex during this period consisted of 9,206 males and 8,416 females. I do not offer a racial analysis in this study because, with the exception of one case involving a Native American woman, the assailants and victims in Essex County were white. The largest non-white population in the county, African Americans, reached its highest level, 123, in 1860.

(92.) CCCR. In 1846 the court handed down a conviction for attempted rape and rape and sentences of ninety days and ten years of hard labor in the state prison, respectively. A third man was convicted of incest in 1850 and sentenced to two years hard labor in the state prison. From 1800 to 1830 the difference in population of both Clinton and Essex County was never more than a 1,000 people. However, by 1850 Clinton County contained almost 9,000 more people than Essex County.

(93.) Howell and Tenny, History of die County of Albany, 304-309.

(94.) Roth, "Spousal Murder in Northern New England," 74.

(95.) United States Census of Population, Auburn State Prison, Auburn, Cayuga County, New York, 1850, microfilm.

(96.) Norma Basch, In the Eyes of the Law: Women, Marriage, and Property in Nineteenth-Century New York (Ithaca 1982).

(97.) Michael Grossberg, "Who Gets the Child? Custody, Guardianship, and the Rise of a Judicial Patriarchy in Nineteenth-Century America," in History of Women in the United Stores, Nancy F Cott ed. Vol. 3 (Yale, 1993), 288.