Crime and Punishment in American History - Lawrence M. Friedman [14]
Real time is thus not the same as social time, or historical time—the time measured by research, reminiscence, and memory. It is convenient to talk about the colonial years as a single “period.” Yet this period lasted about 150 years, a span of many generations; people were born, grew old, died, were forgotten, all within this single “period.” This was about as long a span as the time between the Declaration of Independence and the attack on Pearl Harbor; between the Continental Congress and the third term of Franklin Delano Roosevelt.
The world did not stand still during the colonial period; and certainly the colonies did not. They began as tiny settlements, crude and endangered, scratching a living from clods of earth; poor, isolated, ingrown. On the eve of the Revolution there were some three million people living in the colonies; there were cities, colleges, material culture. Puritan Massachusetts in 1650 was a different place from eighteenth-century Georgia; New York and Virginia contrasted in many ways; and so on. Life in New England, in the middle colonies, in the plantation South, formed part of a vast mosaic: thousands of tiny bits of colored stone. There was an overall pattern, which we can clearly see today; but the patterns dissolve the closer one gets—or the more carefully one looks at details. Each colony had its own character, 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, the afterworld, religion, and the social order. In short, life in the colonies was village life, orderly life, religious life. It was also a life dominated by ideas about hierarchy and subordination; about obedience to fathers, ministers, masters. The colonies had no real aristocracy on the English model, but the leaders of the settlements were neither anarchists nor democrats ; far from it. These facts of structure and ideology made the criminal justice system what it was; they shaped types of punishment and the very definitions of crime.
Criminal justice in the colonies was cobbled together from three basic elements. First, there was English law, or rather, as much of the law and customs as the colonists brought with them from England and remembered. The language of criminal justice was, as it had to be, plain English: terms like judge, jury, defendant, felony, arrest. Whatever jargon of law came to be used (not always accurately) also came over on the boat, so to speak, direct from England.
But the circumstances of colonial life bent the English patterns out of shape. The physical and social environment was the second of the three elements that made colonial law what it was. Life on this side produced problems that life in the mother country never had to face. English law had nothing to say about dealing with native tribes. It had no law conceming slavery. Native tribes and black slaves were part of the colonists’ world.
Also, the colonies were small, struggling communities, especially in the early years. They were profoundly isolated, teetering on the brink of starvation, and at the edge of the wilderness. This sense of desperation was reflected in the early colonial law codes. The first Virginia code in 1611 (“Lawes Divine, Morall and Martiall”), usually called “Dale’s laws,” is famous for its draconian bite. Dale’s laws were a kind of military justice; these were rules drawn up for a scared community, holding on to the tip of a continent by its fingernails.4
Law in Massachusetts did not show the same sort of autocratic desperation, even at the outset. Yet here, too, the brute facts