Crime and Punishment in American History - Lawrence M. Friedman [19]
The office of the coroner was an ancient institution, brought over from England. The coroner conducted “inquests” in cases of violent or unexplained death. A special jury would view the body, under the coroner’s direction, and decide whether it was a case of accident, suicide, or murder: whether, as the words of a New Hampshire statute put it, the person “dyed of Felony, or by Mischance and Accident? And if of Felony, whether of his own or anothers? And if by Mischance or Misfortune, Whether by the Act of God or Man? And if he dyed of Felony, Who were Principals, and who were Accessories?”25
A professional system tends to have clean, clear lines marking off the various “beats” from each other; the lay public is told to keep out. In the criminal justice system, there has been a long-term trend toward professionalism. The amateur world of the colonies drew no clear lines between public and private. The system depended on lay people, as Pauline Maier has pointed out, on traditional institutions, such as the “‘hue and cry,’ by which the community in general rose to apprehend felons.” In other cases, magistrates would turn “to the posse comitatus ... able-bodied men a sheriff might call upon to assist him. ”26 As a result, “the difference between legal and illegal applications of mass force was distinct in theory, but sometimes indistinguishable in practice.”27 The very concept of the “mob” in the eighteenth century has to be taken with a grain of salt.
One American innovation in staffing criminal justice does deserve particular mention. In England, as we mentioned, there was no such thing as a “district attorney,” that is, a paid official whose job was to prosecute crime on behalf of the state. People were supposed to prosecute on their own—and at their own expense. This was quite a burden for a simple shopkeeper, or a tenant farmer, to bear. The public prosecutor—a government officer in charge of prosecution—appeared quite early on this side of the Atlantic. He came to be called the district attorney, or county attorney, or the like. Where did the idea come from? Among the Dutch in New York, an officer known as the “schout” acted both as a kind of sheriff and as a prosecutor.28 This, some scholars think, might be one crucial source of the American public prosecutor.29 Perhaps ; but nothing forced this institution down the throats of other colonies; and the idea of Dutch “influence” is both slippery and implausible. More likely, the concept of public responsibility for prosecuting criminals rang a bell in the colonial mind. c
Colonial society was certainly hierarchical—with a vengeance. Still, it was far less stratified than English society; and the people on top were not an aristocracy. Even in the seventeenth century, colonial society was far more fluid, more open (for white men, at least). Consequently, the law was in some ways more “popular” than in England. Ordinary people have an interest in protecting their bodies from assault, their property from thieves. These interests weighed more heavily in the colonies than in England. In addition, the leaders—magistrates, solid citizens, ministers—saw a sacred duty in enforcing the law. There was an obligation to find and punish bad behavior. The commandments of God’s justice were too important to be left to the whims, and the pocketbooks, of individual victims.
2
THE LAW OF GOD AND MAN
THE COLONIAL SYSTEM OF JUSTICE WAS PATRIARCHAL; AND TO A DEGREE, SUCCESSFULLY so. Sinners were to be punished and brought back into the fold. Every effort was made to bind people in righteousness to their community. The system was also strongly hierarchical. Magistrates and leaders made the laws; the burden fell most heavily on