Crime and Punishment in American History - Lawrence M. Friedman [15]
Obviously, it made no sense to reproduce this mess in the New World. The English tangle of courts had evolved in the course of a long, tortured, and unique historical process. It could work—if it worked-only in an old, complex society. A store in New York City or Los Angeles today may make a living selling nothing but soap, or Chinese pottery, or shoes for people with big feet. A tiny town, a mere cluster of houses, will make do with a general store. Similarly, colonial institutions tended to be simple, undifferentiated, and humbly unspecialized—caterpillars where the English courts were gaudy butterflies.
The third factor also drew a line between legal worlds on the two sides of the Atlantic. This was the factor of ideology: the worldview of the colonists, or at least those who called the shots in the colonies. Massachusetts was dominated by the Puritans; Pennsylvania and, for a time, New Jersey, belonged to the Quakers. The laws and legal customs in the colonies were a mirror of what elites, magistrates, and leaders thought about the good, the true, and the right, about justice and order. And this was not the same as the ideas of the landed gentry of England.
Nor were these the same ideas and attitudes that animate criminal justice today, at the end of the twentieth century; or, for that matter, in the nineteenth century. Religion was a powerful influence on society on both sides of the Atlantic; probably more so in New England than in old England. Some of the colonies, too, were deliberate implants, grafted onto the body of an unfamiliar continent for reasons that were, at base, deeply religious. Many colonial leaders were not looking for land or fortune ; especially in the Puritan colonies, they were looking for a way to serve God, the opportunity to build godly societies, societies governed by the word of God. They had clear ideas about what a godly society would look like, and they did their best; but circumstances beyond their control shattered the patterns they had worked so hard to build up. Social and technological change, as well as the brute physical facts of the continent, ultimately undid them. Forces stronger than hurricane winds swept their plans and their structures away.
These, then, are the main themes we will follow out: the role of religion and ideology in shaping criminal justice; how a system of paternalism and godly order developed and then declined; the rising force of new ideas and new facts, and the erosion of the colonial system. But first, we will take a brief look at the nuts and bolts of criminal justice in the colonial period.
Courts and Procedures
As we have seen, court systems were bound to be simpler in the colonies than in the mother country. To be sure, there was a good deal of variation from colony to colony, and a great deal of evolution over time. 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, as the basic trial court was called in many colonies, was a jack-of-all-trades, the workhorse of colonial government. It was an administrative body as well as a court; but criminal work was part of its business, too. Ultimately, in many colonies, there were higher courts that heard appeals, and specialized courts, particularly in cities and towns. In rare cases, a loser could appeal a case to the distant overlords in England.5
An English lawyer would recognize procedures and court jargon as English, but with a difference. Criminal procedure was rough and ready, in contrast to the fashion in London. The small scale of colonial life was responsible