The Punishment Monopoly. Pem Davidson Buck
elite rule. Making this selection may well require another aspect of sovereignty, the ability to declare a de facto or de jure exception, thus getting people to accept that the standard rules, including those of human decency and state protection, don’t apply to these Others.17
Well-managed punishment produces a display of the state’s power over life and death—currently in the relentless grinding of the wheels of the legal system, but in the earlier stages of state formation through the public administration of intense pain: whippings, amputations, and sometimes the dismemberment and annihilation of offending bodies. The fate of a few Scottish Jacobite rebels—a fate Alexander I avoided, though he was probably one of those rebels—makes this clear. They were drawn and quartered: first hung by the neck, cut down while still alive, their innards ripped from their living bodies, and then literally pulled apart by horses tied to their four limbs. The shrieks of one victim, Archibald Burnet, could be heard a mile away.18 It would be hard to misunderstand the warning being delivered. The Powhatan likewise provided spectacular, lengthy, and agonizing deaths, but, unlike English executions, those deaths were considered to be an honor for worthy enemy captives. Ordinary Powhatan criminals were merely beaten to death with cudgels on a sacrificial rock altar.19
Foucault, in Discipline and Punish, begins with an unforgettable description of punishment by drawing and quartering in France.20 Like the English punishment of Archibald Burnet, it was performed by a state in which the power to carry out such a killing was monopolized by the king. With the development of a modern state, however, spectacular punishments waned, and a “different physics of power” emerged,21 in which punishment had to appear to be a result of laws that reflected nature—the natural consequence of crime, rather than merely a king’s prerogative.22 Discipline, not painful punishment, was meant to create productive subjects who, though bowing to sovereign power, remained unable to recognize their own subservience.
Foucault takes the sovereignty that is built on the power to punish as his starting point. However, there is a prehistory to that starting point. Polities moving in directions that eventually lead to what we call states fight long and hard to gain the power to punish, wresting it out of the hands of local people. As a ruling elite becomes stronger, it more and more effectively prevents less powerful individuals or groups from defining and punishing transgressions. Thus gaining a monopoly on punishment is integral to state-making and is required if states are to exist at all. As a polity concentrates punishment in fewer and fewer hands it becomes more state-like, enabling a feedback loop in which greater punishing power allows greater dispossession and a greater concentration of wealth—those hallmarks of a state. In this process Davidsons and Radfords gradually lost their rights to punish as the US state became stronger, preventing any but state-authorized agents from punishing. Sovereignty thus rests at base in the control of punishment. The tales in this book will follow that development.
Throughout this history, other nations surrounded Radfords and Davidsons, all claiming their rights as unconquered, though diminished, autonomous sovereign polities. We can presume the Davidsons were aware of Cherokee and Shawnee struggles to create or maintain sovereignty, just as early Radfords must have been aware of Powhatan and other East Coast nations’ claims to sovereign status. Native Americans, in signing treaties at various times with the US, British, French, and Spanish governments, reserved to themselves territory they continued to claim and certain rights concerning the use of force within those borders. At least in the early days of Radford history, both parties conceived of those treaties as agreements between equal sovereign entities. But by the time Alexander Davidson arrived in Virginia, the conception of Native American polities as equal to colonial entities had disappeared on the East Coast, although it was still relevant west of the Appalachians. The Shawnee leader Tecumseh envisioned another sovereign Native polity north of Kentucky, in the Old Northwest, a vision he came surprisingly close to realizing. I say “surprisingly” because our present understanding of history generally leads us to see such efforts as doomed from their inception because they weren’t on what we see as the inevitable trajectory that led to the United States in its present form. But, had Tecumseh succeeded, that Native polity would have been a sovereign state, controlling the use of force within its own borders; it would have had the right to punish those within its borders as it saw fit; and it would have exercised the right to regulate and defend its own borders in relation to other states.23
THE FOUNDATION OF A STATE’S sovereignty is its monopoly on the use of force internally to control the population and externally to maintain borders. That control depends on the power of a governing elite, a power it could not acquire without dispossession, and punishment is what allows dispossession to exist, with the wealth of the few built on the labor of the many. And that wealth, in turn, feeds the power to use force.
While some who do the work of wealth-making lead reasonably comfortable lives, those who do the hardest and arguably the most productive and important work lead lives of struggle and suffering. This was true of the enslaved, and it is still true. Without the use of force and punishment, it is hard to imagine how the seriously dispossessed, leading lives of deprivation, loss, and exhaustion, could be kept from revolting. Davidsons and Radfords, from Jamestown to Kentucky, were directly involved in the US history of state-making, in the inequality that entailed, and in the capitalism that both depended on and enabled it. Capitalism depends on acquiring labor and resources through dispossession—through the literal taking of people and land to prime the pump of capitalist accumulation. Rosa Luxemburg said long ago that capitalism always requires something from outside capitalism.24 That “something extra from outside” sets off the chain of accumulation. You will see it frequently in these tales. It involves using people and land or other resources that have not come by way of capitalist social relations. This use is not legitimized by paying wages or by purchase; it is the stealing of people, coerced labor, the theft of land, conquest to gain control of critical resources. Acquiring them requires force, chicanery, or dispossession, or all three, and the whole process is enabled by a state that ideologically legitimizes such behavior, that when necessary employs military might, and that provides the necessary policing and punishing needed to maintain it. This is as true today as it was in the days of the slave trade and the colonial plundering of Native American lives and resources.
To talk about dispossession and punishment, about who has the power to punish whom, and how gaining exclusive right to determine punishing is the mark of a sovereign state, I use stories of the intertwining lives of my paternal ancestors, Davidsons and Radfords, with the peoples they encountered, owned, and fought, African and Native American, Scottish and English. All in these tales were caught up in the struggles to establish and maintain sovereignty over a wider and wider area and over more and more people, more and more of whom were dispossessed. That struggle, which eventually led to the formation of the United States, has left its mark on the country today and shapes continuing efforts to mark and legitimize sovereignty. In a world the Native people came to say had been “turned upside down” there was nothing inevitable about the outcome—either then or now.25
CHAPTER 1
Tales of a Mythical Ancestor, Punishment, and Diarchy
Back when I began envisioning this book, I assumed my cousin’s family mythology was that elusive concept called “truth.” We believed that our first Radford ancestor was named Benjamin, one of the early settlers at Jamestown. And “early” we all took to mean within the first few shiploads. My cousin, visiting Jamestown with her children and husband, swears she saw the name Radford engraved on a monument. But when I began genealogical research as well as research on early Jamestown, I found no Radford. Eventually my husband and I went to Jamestown. We had a lovely vacation, and I learned a lot about Jamestown and life there for the English—though much less for the Powhatan—but found no Radford on a monument or anywhere else. It wasn’t until several years later that I ran across what might be the source of the mythology of Benjamin Radford, in an old book on the history of Christian County, Kentucky, where the Radfords who were part of my family eventually moved. There, in black and white, it refers to Benjamin Radford, “one of the first Jamestown settlers in 1607.”1 And yet, according to the records of Jamestown, no such person existed. Further, if he did exist, there is no link between him and