In a reformist push to reduce the widespread use of the death penalty in the new Commonwealth of Virginia, Thomas Jefferson drafted “A Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital” in 1779. This was Bill 64 of 126 bills put together by Jefferson and the Committee of Revisors to rationalize law after the colonial period. The draft in Jefferson’s hand contains many reasonable reductions of penalties but then comes to a couple of sections that make for bizarre reading today.
Instead of executing those found guilty of “rape, polygamy, or sodomy with man or woman,” Jefferson proposed castration for men and, for women, “cutting thro’ the cartilage of her nose a hole one half inch diameter at the least.”
Jefferson also proposed proportionate maiming for those who intentionally maimed the faces of others. His variation of the eye-for-an-eye system of justice, the lex talionis or law of retaliation, read, “Whosoever on purpose and of malice forethought shall maim another, or shall disfigure him, by cutting out or disabling the tongue, slitting or cutting off a nose, lip or ear, branding, or otherwise, shall be maimed or disfigured in the like sort…”
When this package of bills was finally put before the Assembly in the sessions of 1785–1786, Jefferson was away serving as the US Minister to France. Fifty-six of the Committee of Revisors’ bills were enacted. James Madison reported to Jefferson that Bill 64 lost by one vote. This was because, writes historian Emily Cock, the holdout wanted to “retain horse-stealing as a capital offense.” Or, as Madison summarized, “Our old bloody code is by this event fully restored.”