Crime and Punishment in American History - Lawrence M. Friedman [152]
This was, of course, a big, famous case. It received the full treatment. In 1800, just as today, big, famous cases existed in a different world, procedurally speaking, from the small, routine case. It is much harder to get to know the ordinary case, the small fry wriggling in the sea of criminal justice. We know, though, that most of these cases, early in the century, actually went to some sort of trial. Most of these “trials” were short; most of the defendants had no lawyer, and had to cobble together whatever they could say or do in their own defense; and there was not much quibbling about niceties of evidence.
What was the quality of justice in these courts, and in these cases? It is hard to be sure. We will take a single example, one of hundreds of its type, no doubt—a trial of an ordinary, but serious crime. The year was 1816; the defendant, a “young female” named Eliza Perkins; the place is the Court of Sessions in New York. Perkins is accused of stealing Nathaniel Hopping’s pocketbook, with $140 inside. This is grand larceny; $140 was a good deal of money at the time. Hopping, a married man, came over from New Jersey one evening and went to the house of a certain Mrs. Daniel. Perkins was there, dancing. She “manifested much fondness” for Hopping and even “hung round him.” They danced, and Hopping bought her some gin. Then she “absented herself.” Hopping stepped outside and saw her there, but “she fled from him.” A little while later, he realized his pocketbook was gone. When he managed to get hold of Perkins the next morning, she begged him “not to send her to Bridewell”; she promised to “restore the money.” She gave him back twenty-eight dollars. She had paid off some debts with the money.
Eliza Perkins was in deep trouble, but she knew enough to get herself a lawyer. He went on the attack—rather clevely, too. How do we know, he asked, that there was “an actual felonious taking”? What if Perkins had found the pocketbook on the floor? Perhaps Hopping, he said, making fun of the man’s name, “in hopping about right merrily at the sound of the viol, with these Cyprian damsels,” “dropped it inadvertently.” Nice try; but the jury was not convinced. They “immediately pronounced her guilty, but recommended her to mercy, by reason of her youth.” Her sentence was “suspended until the next term.”8
The defendant in this case was young, and a woman, and on the fringes of respectable society, or worse; and in debt. She was convicted of the crime. But the few lines of the report strongly suggest that this was not a foregone conclusion. Her case had not been hopeless from the start. She had an advocate; she had a chance to win—and a chance for mercy, if nothing else. In the event, she did get a suspended sentence rather than a jail term. It is easy to be cynical about the myths and ideologies of justice. The scales of justice were undoubtedly tilted; there were so many ways in which the powerful and the comfortable were better off than the lowly poor. Tilted, yes; but not completely fallen on their side.
Rough Justice
The bottom layer of the system is, in many ways, the most obscure. Here we find literally thousands and thousands of sub-planktonic cases, cases of vagrancy, petty assault, drunkenness, and disorderly conduct. In some places, the judge was a justice of the peace; he disposed of his docket in a quick-and-dirty way, a bit paternalistically, without a jury, and almost always without lawyers. The justice himself was usually not a lawyer, either. These lower courts were often the locus of homespun, rough-and-ready justice for the masses, a form of what Max Weber called khadi