Crime and Punishment in American History - Lawrence M. Friedman [13]
The “common law” was, essentially, the law of England; and the common-law countries today are colonies of England, former colonies, and colonies of colonies: the family includes, among others, Canada (except for Quebec), Australia, New Zealand, Barbados, Jamaica, and quite a few African countries. In Europe in general, in Latin America, and (by adoption) in such countries as Japan, a different historical tradition prevails, the vast civil-law system.’ (Civil law, by way of Spain and France, has been a major influence on the law of Louisiana, and has also made a mark, by way of Mexico, on such states as Texas and California.) The two systems differ in a number of large and small ways. The jury, for example, is a common-law institution; in some civil-law countries only trained judges decide on innocence or guilt.
There are other important traits that set common-law systems apart from other legal systems. Compared to continental systems, they put a great deal of emphasis on the spoken word. The heart of the criminal trial was and is oral testimony—examination and cross-examination-and the lawyers run the show. The judge sits on the bench as a kind of
* For a concise introduction to the civil-law system, see John H. Merryman, The Civil Law Tradition (2d. ed., 1984).
august, reverend umpire. On the European continent, a trial consists mostly of shuffling pieces of paper about. Lawyers have a less prominent role than judges, who investigate, develop evidence, and present it to other judges, who in turn decide the case.
Crime-handling in common-law England, on the eve of settlement, distinguished between serious crimes (felonies) and not so serious ones (misdemeanors). Serious crimes got serious treatment. It took a two-step process to convict a criminal. Before someone could be tried for, say, grand larceny, he had to be indicted by a grand jury. The grand jury, an ancient institution, was a panel of men drawn from the community who heard evidence about crimes. But the grand jury did not itself decide on guilt or innocence.3 If the case seemed strong, the grand jury “indicted,” or, as they put it, returned a “true bill” (in Latin, billa vera) ; if the evidence was weak, they returned a “no bill,” and the accused went free. If the grand jury indicted, the case went to court, to be tried by an ordinary jury (or petit jury).
One striking aspect of trial was the system of private prosecution. English law had no district attorney, no public prosecutor. If you were a shopkeeper, and you caught a thief robbing your store, it was your responsibility to bring him to justice. A constable might help you chase and catch the thief; but that was all. In any event, the money for the prosecution would have to come out of your pocket.
So much for felony trials. Also under the umbrella of criminal justice were thousands upon thousands of smaller cases, cases of petty crimes. Local courts handled these, mostly without the drama of juries and the hurly-burly of a felony trial, and without the paraphernalia of the upper courts. In England, the local justice of the peace—a squire or gentleman who lived in the area—was in charge of these proceedings. Procedure and substance were as different from the world of the great courts of London as night from day. But both levels were important; and both had a profound effect on the system of criminal justice that developed in the colonies.
The colonial world is not easy to capture in a few short pages, and its criminal justice system is no less elusive. The further we look back in time, the dimmer the world gets, and the stranger. Individual years, decades, and centuries tend to blur into “periods.” In our own lives, ten years