Crime and Punishment in American History - Lawrence M. Friedman [12]
All theories of crime are ultimately political. Most of them assume that crime is bad, that criminals are bad, and that crime is a disease in society. But most people would concede that all “crime” is not necessarily evil. Joan of Arc was burned at the stake; now she is a saint. George Washington, a national hero, was, of course, a traitor to the British; they might have hanged him had he lost the war. It was a crime in Nazi Germany to disobey Hitler, or to interfere with his extermination plans; dissidents and rebels were put to death. But these “criminals” seem like heroes to us. Some critics on the far left feel much the same way about rebels in this society. It is even a political statement to approve of sending burglars to jail. Most readers, of course, will be willing to make this kind of political statement. But very few of us approve of the entire system. After all, there have been and still are powerful movements to take things off the list of crimes—fornication, for one. One person’s free speech is another’s sedition. The ebb and flow of opinion on crime and punishment is an essential part of this history.
The following two chapters look at the first of our three main periods : colonial America.
I
TIGHT LITTLE ISLANDS: CRIMINAL JUSTICE IN THE COLONIAL PERIOD
I
THE SHAPE AND NATURE OF THE LAW
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. The legal history of the continent, of course, 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.
And then, of course, the European settlers did not come to an empty land. They thought of themselves as “discoverers”; from their point of view, they had arrived in the unknown, and carved settlements out of “wilderness.” 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.
The native peoples did not, to be sure, have systems of writing. None of them has left behind a written record of their legal system as it was on the eve of European arrivals. But these systems were nonetheless real: vigorous, active, alive. We know something about the way they operated from the accounts of the settlers.1 We know something about them, too, from oral histories taken in later years. Indeed, some of these systems (in modified form) survive to this day.
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.2 Ultimately, the English buried their European rivals, too—the Dutch lost New Amsterdam; and the Spanish (much later) gave up Florida. Essentially, 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