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7 The Convict’s Two Lives: Civil and Natural Death in the American Prison
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| 191 7 The Convict’s Two Lives Civil and Natural Death in the American Prison Rebecca McLennan There is a death in deede, and there is a civill death, or a death in law, mors civilis and mors naturalis. —Edward Coke, The First Part of the Institutes of the Laws of England, 1628 In 1870 the warden and agent of the Virginia State Penitentiary at Richmond dispatched several dozen male prisoners to forced labor camps owned and operated by the Chesapeake and Ohio Railroad Company in Bath County, some miles from Richmond.1 That summer, while toiling on the railroad tracks beneath the hot Virginia sun, several of these prison laborers—including twenty-year-old Woody Ruffin, a former slave from Petersburg—made a break for freedom. The railroad company’s overseers thwarted their escape but not before one of the guards, Lewis F. Swats, had been killed.2 Upon recapture, the prisoners were immediately returned to the state penitentiary at Richmond. Ruffin was shortly thereafter tried before the city’s Circuit Court for the murder of guard Swats. The jury found him guilty as charged, and the judge sentenced him to the gallows. Fighting now for his natural life, not just his freedom, Ruffin appealed his case to the Virginia Supreme Court. Counsel argued that the state’s Bill of Rights guaranteed “a man” prosecuted for a capital or other crime the right to a trial by an “impartial jury of his vicinage” and that Ruffin’s vicinage at the time of the alleged murder had been Bath County, where the crime occurred, and not the city of Richmond. The court ought, therefore, to overturn the Richmond court’s verdict and order a new trial by impartial jury in Bath County.3 (Presumably the defense attorney hoped that a Bath County jury would find Ruffin “not guilty.” Although Virginia had been “Redeemed” the previous year, black men still served on juries, and the majority of Bath County’s population was black). 192 | Rebecca McLennan The court denied Ruffin’s appeal. Writing for the bench, Justice Christian ruled that the state’s 1860 penal code clearly directed that the Richmond Circuit Court “shall have full jurisdiction of all criminal proceedings against convicts in the penitentiary.”4 That Ruffin had been in the custody of a private railroad company operating in another county at the time of the alleged murder was immaterial: If [a state prisoner] can be said to have a vicinage at all,” wrote Justice Christian, “that vicinage as to him is within the walls of the penitentiary, which (if not literally and actually) yet in the eye of the law surround him wherever he may go, until he is lawfully discharged. . . . He is for the time being a slave, in a condition of penal servitude to the State.5 Christian went on to refute the very presupposition on which the substance of Ruffin’s appeal depended: the presumption that Ruffin, as a man undergoing criminal prosecution, was protected by the state Bill of Rights. “The bill of rights is a declaration of general principles to govern a society of freemen, and not of convicted felons and men civilly dead,” the justice objected. As a “consequence of his [original] crime”—the one that had supposedly landed Ruffin in the state penitentiary in the first place—Ruffin had “not only forfeited his liberty, but all his personal rights except those that the law in its humanity accords to him. He is for the time being the slave of the State. He is civiliter mortuus; and his estate, if he has any, is administered like that of a dead man.”6 Having put Ruffin in his supposed legal and moral place—the extra-constitutional graveyard of the civilly dead—Justice Christian upheld Ruffin’s conviction for the murder of guard Swats. He ordered Ruffin conveyed to the gallows and hanged by the neck until dead. Civil death had indeed put Woody Ruffin on a slippery slope. Barred from availing himself of the full protections of the Virginia Bill of Rights, his legal capacity to avert natural death at the hands of the state was significantly compromised; his last remaining chance to defend himself in a court of law against a charge of capital crime had been extinguished. Barring a reprieve, commutation, or pardon by the governor of Virginia, the state’s hangman would substitute a cold, lifeless, body for a living, civilly dead one. Ruffin’s brush with court-ordered death...