Crime and Punishment in American History - Lawrence M. Friedman [18]
The Organization of Justice: A System of Amateurs
Colonial justice was a business of amateurs. Amateurs ran and dominated the system. Today, professionals call the shots; men and women with special training, degrees, certificates, full-time positions—police, prosecutors, defense lawyers, social workers, probation and parole officers, corrections specialists of various sorts. Even the criminals are often, in a way, professionals.
Nothing of the sort existed in the seventeenth century. Lay magistrates decided most cases; the jurors, of course, were also lay. There were no police in the modem sense. The local sheriff was in charge of law enforcement; he also summoned the jurors. Constables made arrests, and night watchmen patrolled the streets of the bigger towns.
Constables and watchmen were, for the most part, ordinary citizens. It was a man’s civic duty to serve as constable or watchman. Not everybody had enough of a sense of obligation to make the system work. The Dutch introduced a paid watch system in New York in 1648; in Boston a similar plan took effect in 1663. Both towns later abandoned the scheme because it was too expensive.19 The night watch continued on an amateur basis. A watchman’s duty, in New York (1698), under English rule, was to go “round the Citty Each Hour in the Night with a Bell,” and “proclaime the season of the weather and the Hour of the Night”; if the watchman met “Any people disturbing the peace or lurking about Any persons house or committing any theft,” the watchman was to “take the most prudent way ... to Secure the said persons.”20
Each colony had its own plan for getting an adequate supply of constables. In Georgia, under a law of 1759, they were recruited in a kind of draft system. Free white males between twenty-one and sixty were liable to serve. The justices of the peace in each district were to meet “on some day in Easter week”; the names of all eligible men were to be written down “on divers pieces of paper, and each rolled up by itself, and the said pieces of paper so written and rolled up shall be put in a hat or box [and] well shaken together.” The justices were then to draw out names, serve the lucky winners with a summons, and swear them in as constables ; the term of service was one year. Ministers of the Church of England, of “dissenting congregations tolerated by the laws of England, members of both houses of assembly, commissioned officers of the militia, licensed school-masters, physicians, appothecaries, sworn attomies, madmen, ideots, and sick persons” were all exempt; and a man could hire or induce a substitute to serve in his place.21 In New York, too, it was possible to hire a substitute to serve one’s stint as a constable. Amateur constables could hardly be expected to do the job right. They were sometimes no match for the lowlifes they wanted to arrest. Douglas Greenberg found dozens of instances in eighteenth-century New York in which men assaulted or resisted constables.22
The sheriff was a familiar figure in the various colonies. The governor appointed a sheriff for each county, to enforce the law and act as the chief agent of government in that county. He had a multiplicity of duties. He was in charge of jury selection, as we have mentioned; he was also in charge of jails, prisoners, and the like. Like constables and night watchmen, sheriffs in New York were prone to neglect their business at times; some were reprimanded or prosecuted for malfeasance in office. 23 In Pennsylvania