Current scholarship is peppered with casual references to “sumptuary laws” whenever regulations of clothing or bodies are at issue. Too often, these references are incorrect, or at best incomplete. This Article is a careful consideration of the various regulations of attire and bodily markings from the Magna Carta in 1215 to the adoption of the United States Constitution in 1789. This Article situates bodily regulation within Anglo-American constitutionalism, including nascent constitutional Tudor-era struggles between the monarch and Parliament, the status of colonial laws, the American Revolution, pre-constitutional slavery, and the formation of the Constitution, including a proposed “Sumptuary Clause.”Robson comments that
It has become common to link current regulation of attire or grooming with former practices known as sumptuary laws. The classic definition of a sumptuary law is one directed at excess consumption. Such a law was arguably in the service of religious or ethical conceptions of the “good life,” and often, but not necessarily, the conceptions of excess varied by status.
Yet we recognize that even medieval regulations of dress were rarely solely sumptuary. Mixed motive regulations contained proscriptions of excess, even as they addressed trade imbalances or other economic concerns. Moreover, many laws governing apparel, as well as regulations of hairstyles and bodily markings, were not directed at consumption. Instead, such laws policed other hierarchies, such as those involving sexuality, gender, poverty, criminality, and slavery. Additionally, they served the interests of nationalism and empire in both economic and political ways.
Thus, all laws governing dress or grooming, whether solely sumptuary or not, implicate constitutionalism with regard to individual rights as well as the structures of governments. This Article centers the constitutional and nascent constitutionalism surrounding regulations of attire, grooming, and bodily markings, beginning with the Magna Carta in 1215 and ending with the creation of the United States Constitution in 1789. Section One begins with the regulation of textiles in the Magna Carta and continues through the Tudor era, describing the various provisions and their purposes. Section Two continues a focus on the Tudor era, arguing that disputes regarding the regulation of attire implicate nascent constitutionalism and democracy. The third section explores how the English used the regulation of dress, hair, and textiles as a method of national definition. Section Four moves to the American colonies, looking at laws and literature that structured society through the regulation of attire and the practice of branding, including in the important pre-Constitutional 1736 case of Rex v. Mellichamp and its relationship to slavery. Finally, Section Five examines the role of textiles in Revolutionary War rhetoric and politics and the rejected Sumptuary Clause of the United States Constitution. At the heart of these examinations and explorations is the intertwinement of the regulation of appearance with matters of democracy, sexuality, and hierarchy.In discussing economic incentives and social regulation Robson notes that
a 1666 Act entitled “An Act for Burying in Wool Only” prohibited the burial shirt, shift, or sheet to be made of anything other than wool, and similarly prohibited the coffin from being lined with anything other than wool. While this may be called a sumptuary law, the stated rationale was not excess in apparel or over-consumption, but the encouragement of woolen manufacturers of the kingdom and the prevention of spending money on the importation of linen. Importantly, it applied uniformly across classes; the only exception was if the person had died of the plague.
An earlier and more well-known law was the Elizabethan Cap Act. A serious decline in employment for “cappers” and other wool workers was the stated motivation for the “Act for the making of Cappes,” passed by Parliament in 1571 during the reign of Elizabeth I. The Act’s remedy for the decline in the wool trades was to require “every person” above the age of six years to wear a cap upon Sabbath and Holy Days. However, although the Act recited that the wearing of the caps was decent and comely for all estates and degrees, the Act specifically exempted “Maydens Ladyes and Gentlewomen,” as well as those who were noble personages, Lords, Knights, and Gentlemen of possession of twenty marks land by the year, as well as their heirs.” Thus, the Act essentially mandated the cap as a marker for lower class status.
A similar marking of the lower classes occurred by the practice of “badging” the poor, prompted by economic interests of a different sort. Beggars were required to wear badges indicating their eligibility for alms in some English parishes and towns since the reign of Henry VIII, and the famous Elizabethan poor law of 1563 required licenses for those receiving poor relief in some cases. However, the “badging” requirement imposed by a Parliamentary statute of the realm in 1697 provided that every person receiving relief, including the wife and children of such person, shall
upon the Shoulder of the right Sleeve of the uppermost Garment of every such Person in an open and visible manner weare such Badge or Mark as is herein after mentioned and expressed that is to say a large Roman P, together with the first Letter of the Name of the Parish or Place whereof such poor Person is an Inhabitant cutt either in red or blew Cloth as by the Churchwardens and Overseers of the Poor it shall be directed.
The impoverished were subject not only to badging, but also to branding, which might be considered a permanent type of attire. During the brief reign of Edward VI, Parliament in 1547 passed An Act for the Punishment of Vagabonds and for the Relief of the Poor, providing that the punishment for both male and female loiterers who did not apply themselves to honest labor was to be marked with a hot iron in the breast with the letter V and to serve as a “slave” for two years to the person who captured him or her. If the vagabond attempted to run away, he or she would be branded again, this time with the letter S on the forehead or ball of the cheek and would then be a slave forever. A second attempted escape would result in the death penalty. Indeed, branding was not an especially harsh punishment, especially in comparison with an earlier statute under Henry VIII that provided the punishment of being tied to the end of a cart naked and beaten with whips throughout the town until the “Body be blody” or standing on the pillory and having an ear cut off. Slavery, however, was extreme, and soon repealed, although vagabond children over the age of 5 were allowed to be “taken into service.”A series of vagabond statutes throughout the Tudor era criminalized the impoverished, migratory laborers, and those who “refused” to work in an era that witnessed the end of feudalism, the plague, and the beginnings of manufacturing.
In addition to economic hierarchies, statutes of attire addressed gendered ones, although often less explicitly. Most notably, the English acts of apparel were directed primarily at males, with the 1510 statute specifically exempting women (as well as, among others, minstrel players). Perhaps this was because males were more preoccupied by clothes than women, or perhaps it was because males in the targeted classes were more visible than women, or perhaps men were deemed to be citizens worthy of regulation while women were subsumed into their male-headed households. However, the statutes of apparel implicitly and at times explicitly presume a gendered division of attire, even if their regulatory focus was otherwise.
The acts of apparel occasionally address sexuality. For example, in 1463 the Parliament of Edward IV criminalized men’s sexually revealing attire. It prohibited the wearing of any gown, jacket, or coat, “unless it be of such Length that the same may cover his privy Members and Buttocks.” The act applied to Knights who were less than Lords, Esquires, and Gentlemen, as well as other persons, and extended the prohibition to tailors who made garments of this short length. Women’s sexuality was also subject to attire regulations, although not in the major acts of apparel. The Parliament of Scotland passed a law in 1458 that regulated silk and furs in a familiar hierarchical manner, and provided that “no labourers or husbands wear any colour except grey or white on work days; and on holy days only light blue, green or red,” but also contained a specific prohibition for women: “no woman come to church nor market with her face hidden or muffled so that she may not be known, under pain of escheat of the cap.” More than a century later, the sumptuary laws were augmented with a moralistic imperative for women expressed in an exceedingly terse statute: “it be lawful for no women to wear above their estate except whores.”