Crime and punishment in american history

American legal history begins, conventionally, in the early seventeenth century, when English-speaking settlers first got a toehold on soil that is now part of the United States. However, the legal history of the continent actually began much earlier. There were Spanish-speaking settlements in the sixteenth century, in what is now Florida and Puerto Rico, and there were Dutch settlers in New York in the seventeenth century.

The European settlers did not come to an empty land. They thought of themselves as "discoverers," but there were native societies in America—old, established societies—the peoples that Europeans called "Indians." Each Indian society had its own law-ways, its own norms, its own way of punishing deviants. None of them left a written record of their legal system, but these systems were nonetheless real: vigorous, active, alive.

The settlers of the seventeenth century came at first in dribs and drabs, then in greater numbers; eventually, they overwhelmed the natives and their law. The "clash of legal cultures," as Kawashima has noted, was a one-way street: English settlers "had no intention of learning from the Indians"; rather, natives had to adjust to the white man's law. Ultimately, the story of English law in America is a winner's story: this is the law that prevailed, in modified form, along the Atlantic coast, and then, modified again, across the continent.

Criminal Justice: The Common-Law Background

What kind of beast was the law that the English settlers brought with them? It was the so-called "common law." Legal systems are tied to particular societies. They develop in their societies over time; they do not come from outer space. Legal systems change, but change is mostly piecemeal, gradual; certain structures, frameworks, skeletons persist over time.

The "common law" was, essentially, the law of England. Today, common-law countries include former colonies like Canada (except for Quebec), Australia, New Zealand, and quite a few African countries. Unlike the civil-law system (which has been a major influence in Europe, Latin America, and even Louisiana and Texas), common-law systems put a great deal of emphasis on the spoken word. The heart of the criminal trial was oral testimony—examination and cross-examination—and the lawyers run the show. The judge sits on the bench as a kind of umpire. There is also a distinction between serious crimes (felonies) and less serious ones (misdemeanors), and the process of indictment by a grand jury before going to trial.

Life in the Colonies and the Three Elements of Justice

The colonial period lasted about 150 years, a span of many generations. The world did not stand still. The colonies began as tiny settlements, crude and endangered, scratching a living from clods of earth. On the eve of the Revolution, there were some three million people living in the colonies. Life in New England, the middle colonies, and the plantation South formed part of a vast mosaic, with each colony having its own character and its own law-ways.

Through this mass of detail, a few prime facts shine through. On the whole, life in colonial America was small-scale; it was life among neighbors, in small, tight communities. Moreover, it was life lived in the shadow of a few powerful, regnant ideas about God, punishment, religion, and the social order. Life in the colonies was dominated by ideas about hierarchy and subordination; about obedience to fathers, ministers, masters.

Criminal justice in the colonies was cobbled together from three basic elements:

1. English law: Terms like judge, jury, defendant, felony, and arrest came directly from England.

2. The physical and social environment: English law had nothing to say about dealing with native tribes or slavery. Colonial circumstances bent English patterns out of shape to deal with these new problems.

3. Ideology: The worldview of the colonists. Massachusetts was dominated by the Puritans; Pennsylvania, for a time, belonged to the Quakers. The laws were a mirror of what elites thought about the good, the true, and the right.

The colonies were small, struggling communities, profoundly isolated, teetering on the brink of starvation, and at the edge of the wilderness. This sense of desperation was reflected in early colonial law codes, such as Virginia's code in 1611 ("Dale's Laws"), famous for its draconian bite. In Massachusetts, English legal patterns and institutions were wildly inappropriate for the new reality, so colonial institutions tended to be simple and unspecialized.

Courts and Procedures

Court systems were bound to be simpler in the colonies than in the mother country. At the base of the system, typically, was a single magistrate, the justice of the peace, who handled cases of petty crime in his locality. The county court was the basic trial court, a jack-of-all-trades and the workhorse of colonial government.

Criminal procedure was rough and ready, in contrast to the fashion in London. Puritan justice had a strongly inquisitorial flavor. The judges, who were religious and political leaders, dominated the proceedings. They believed unswervingly in their right to rule in the name of God. In colonial New Haven, for instance, the magistrates' aim was primarily to squeeze confession and repentance out of sinners. The trial was not a charade; it was a ceremony of some importance—a ritual for reclaiming lost sheep and restoring them to the flock.

The Trial as Social Drama

In colonial history, criminal justice was a social drama. These were small communities, tightly organized and tightly run, and the courts were at the very core of colonial governance. In Richmond, Virginia, the administration of justice was a wholly public event. The courts' yards were open and crowded places, magnets for the commoner and the curious. The whipping post and the gaol stood next to the courthouse, and punishments were public displays designed to warn the immoral.

Theatrical elements came out with special force at hangings. The condemned were expected to play the role of the penitent sinner; it was best of all if they offered a final confession, a prayer, and affirmed their faith in the very shadow of the gallows.

Over time, the use of the jury increased. However, many defendants avoided juries and submitted to the court itself because they expected the court to be "patient and lenient." Guilt or innocence was not the only point of the criminal process; the judges were also concerned with "the willingness of the accused to submit to authority."

The job of the jury has changed over time. Its roots go back to medieval England. But the medieval jury was, in a way, the very opposite of the modern jury. Today, the jury is a feisty, independent body. In England in the seventeenth and eighteenth centuries, juries and criminal trials in general were a far cry from what they are today. The judge dominated the proceedings; the jury was much more supine than its modern descendants.