Crime and Punishment in American History - Lawrence M. Friedman [16]
Puritan justice had a strongly inquisitorial flavor, at least in the seventeenth century. That is, the judges, who were religious and political leaders, dominated the proceedings. They believed unswervingly in their right to rule in the name of God and according to the divine plan. They ran the show; juries rarely sat, except where the death penalty was possible; in colonial New Haven they never sat. The magistrates had a paternal-authoritarian aim: primarily they hoped to squeeze confession and repentance out of sinners. This was a task for elites, saints, not for lay juries. Indeed, if a defendant demanded a jury, this might be taken as a sign of obstinacy, a failure to feel and show remorse.8
Gail Marcus has given us a good description of criminal process in New Haven Colony in the seventeenth century.9 Process began when a magistrate learned or heard that someone had committed an offense. He would send out the marshal or a deputy to haul in the offender. The magistrate would examine the suspect privately, often in his own home, but with other magistrates or deputies present. These examinations were “inquisitorial”; the magistrate was firmly in charge—he asked the questions and the suspect answered. There were no lawyers present, on either side.
If the magistrate felt the man was innocent, or the proof too weak, he could dismiss the case; if there was good evidence, or if the suspect confessed, the case was scheduled for trial. Until trial, the defendant was mostly free to go about daily life; in New Haven, no bail was required. This was a small town, a mere village, and apparently it was effective enough to warn a man or woman: appear or else. According to Marcus, only 4 defendants out of 201 did not show up after getting such a waming.
The trial itself took place soon, quickly, and without jurymen or lawyers. Witnesses appeared and gave whatever evidence they had. The magistrate was in firm control. Of course, the magistrate felt fairly sure of guilt before the trial even started; in all but 14 of the 201 criminal trials Marcus studied, the verdict was guilty on all counts. But the trial was no charade. At least the magistrates did not think so. It was, in fact, a ceremony of some importance. It was an occasion for repentance and reintegration: a ritual for reclaiming lost sheep and restoring them to the flock. The “more awesome the experience, the more valuable it could be as a means of humbling” the sinner. In addition, the trial “proved to God and men that New Haven was fulfilling its religious mission.”10 It was a public, open affirmation of the rules and their enforcement ; a kind of divine social theater. It taught people about good and bad, and the wages of sin. It punished the guilty, and made justice and the law concrete.
This was a constant in colonial history: criminal justice as social drama. These were small communities, tightly organized and tightly run; the courts were at the very core of colonial governance. Here is Hoffer and Scott’s description of Virginia justice in the middle of the eighteenth century:
Criminal courts met at the county courthouse. In Richmond, this was a small, square building at a crossroads two miles from the river. Administration of justice was a wholly public event. The courts’ yards were open and crowded places, magnets for the commoner and the curious. Merchant, lawyer, and passerby mingled to do business, hear cases, and perhaps serve on a jury. The ceremonial of the courthouse, coupled with the colonists’ interest in criminal cases involving neighbors, filled court-houses to overflowing.... The seating arrangement and placement of the bench in the courtroom gave visual emphasis to the power of the justices. The whipping post,