Crime and Punishment in American History - Lawrence M. Friedman [17]
Theatrical elements came out with special force at hangings. The condemned were expected to play the role of the penitent sinner; it was best of all if they offered a final confession, a prayer, and affirmed their faith, in the very shadow of the gallows. Thus Esther Rogers, hanged for infanticide in 1701, had a “Radiant Countenance” as she went to her death; and her execution was a “deeply spiritual experience for all those who witnessed her final moments.”12
Criminal process, of course, changed over time. One notable change was the increased use of the jury. Even in the seventeenth century the jury was a regular institution in Maryland trials; the Puritan colonies came to accept trial by jury as well. Practice, however, varied from colony to colony. Peter Hoffer’s research on Richmond, Virginia, for the years 1711 to 1754 turned up relatively few jury trials: most defendants in minor criminal cases “either confessed or did not contest the charges”; only six of two hundred “put themselves upon the county” (that is, asked for a jury).
This may have been, in part, because a jury trial was costly and created a fuss. But Hoffer thinks something more basic was at work: that defendants avoided juries and submitted to the court itself because they expected the court, in return, to be “patient and lenient.” Guilt or innocence was not the only point of criminal process; the judges were also concerned with “the willingness of the accused to submit to authority.”13 This trait, of course, runs like a scarlet thread throughout the story of American criminal justice.
The job of the jury has changed over time. The roots of the jury system go back to medieval England.14 But the medieval jury was, in a way, the very opposite of the modem jury. Jurors were not supposed to be impartial, unaware, blank pages; but, rather, men (no women served) who knew their community inside and out, substantial men, men with a good sense of what was going on and a keen knowledge of the good and rotten apples in their barrel. It was not until much, much later that the jury came to be a panel of men chosen for complete cognitive virginity.
The jury today is a feisty, independent body. It works behind closed doors, and pretty much does as it pleases. In England in the seventeenth and eighteenth centuries, juries, and criminal trials in general, were a far cry from what they are today.15 The judge dominated the proceedings; the jury was much more supine than its modem descendants. Perry Mason has affected our notions of the criminal trial; we think of trials as battles of wits between clever lawyers who use every trick in their repertoire, to convince (or befuddle) the jury. This image is mostly false as to the 1990s, and totally false with regard to trials in Stuart England.
In fact, most “trials,” both in England and in America, were, if not nasty and brutish, certainly short. If you were transported back in time, to London, to the Old Bailey in, say, 1700 to watch criminal justice at work, a number of facts would immediately strike you. First of all, you would notice that the defendant had no lawyer. Most defendants could not afford one, of course; but this hardly mattered, since the accused was not permitted to have a lawyer. He had to face the court alone. The ban on defense lawyers did not break down until the eighteenth century; John Langbein dates the change to about 1730.16
The jury system in the colonies retained, not surprisingly, the flavor of its English models. An early Virginia law (1662) mentions the English practice of choosing juries from “the neighborhood” where the crime took place. In Virginia (the law went on), this was a bit troublesome, because of the “remotenesse