Crime and Punishment in American History - Lawrence M. Friedman [307]
104 Eli Faber, “Puritan Criminals: The Economic, Social, and Intellectual Background to Crime in Seventeenth-Century Massachusetts,” Perspectives in American History 11:81 (1977-78).
105 Peter C. Hoffer, “Disorder and Deference: The Paradoxes of Criminal Justice in the Colonial Tidewater,” in David J. Bodenhamer and James W. Ely, Jr., eds., Ambivalent Legacy: A Legal History of the South (1984), pp. 187, 193-94.
106 William S. Price, ed., North Carolina Higher-Court Records, 1702-1708 (Colonial Records of No. Car., 2d Ser., Vol. 4, 1974), pp. 351-52.
107 Faber, Puritan Criminals, pp. 138-43.
108 Hoffer, “Disorder and Deference,” p. 193.
109 Louis B. Wright and Marion Tinling, The Secret Diary of William Byrd of Westover, 1709-1712 (1941), pp. 112, 113, 119, 585.
110 William W. Hening, ed., Statutes at Large ... of Virginia, Vol. III (1812), p. 459.
111 Scott, Criminal Law in Colonial Virginia, pp. 202-3.
112 Richard Gaskins, “Changes in the Criminal Law in Eighteenth-Century Connecticut,” American Journal of Legal History 25:309, 319 (1981).
113 William E. Nelson, Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760-1830 (1975), p. 39.
114 Hendrik Hartog, “The Public Law of a County Court: Judicial Government in Eighteenth-Century Massachusetts,” American Journal of Legal History 20:282, 302-3 (1976).
115 Hoffer and Scott, Criminal Proceedings in Colonial Virginia, p. lvi (table 5).
116 For the trial, see Stanley N. Katz, ed., A Brief Narrative of the Case and Trial of John Peter Zenger (1963).
117 See Leonard W. Levy, Emergence of a Free Press (1985), pp. 125-33.
118 David J. Bodenhamer, Fair Trial: Rights of the Accused in American History (1992), p. 28.
119 Thomas Barnes, ed., The Book of the General Lawes and Libertyes Concerning the Inhabitants of Massachusetts (facsimile ed., 1975), p. 50.
120 See John Langbein, “Criminal Law Before the Lawyers,” University of Chicago Law Review 45:263 (1976).
121 For Massachusetts, see Gerard W. Gawalt, The Promise of Power: The Emergence of the Legal Profession in Massachusetts, 1760-1840 (1979).
122 Goebel and Naughton, Law Enforcement in Colonial New York, p. 574.
123 William S. McAninch, “Criminal Procedure and the South Carolina Jury Act of 1731,” in Herbert Johnson, ed., South Carolina Legal History (1980), pp. 181, 182-83. The act also recited that judges in the colony, who “ought to assist the prisoner in matters of law, cannot be presumed to have so great knowledge and experience as the great judges and sages of the law, sitting ... at Westminster.”
124 Rankin, Criminal Trial Proceedings, pp. 89-90.
CHAPTER 3. THE MECHANICS OF POWER: THE REPUBLICAN PERIOD
1 Samuel Walker, Popular Justice: A History of American Criminal Justice (1980), pp. 35-45.
2 On the social revolution, and its relationship to the political revolution, see the important study by Gordon S. Wood, The Radicalism of the American Revolution (1992).
3 Douglas Hay, “Property, Authority and the Criminal Law,” in Douglas Hay et al., Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England (1975).
4 Edward Livingston, Complete Works of Edward Livingston on Criminal Jurisprudence (1873), Vol. 1, p. 148.
5 7 Cranch 32 (1812).
6 Kanavan’s Case, 1 Greenleaf (Me.) 226 (1821). The underlying crime was concealment of the birth of a bastard. Kanavan was indicted in “that he counselled and advised M. E., then pregnant with a bastard child, to bring it forth alone and in secret,” as well as for throwing the dead child in the river. He was sentenced to eight months’ imprisonment.
7 Commonwealth v. McHale, 97 Pa. St. 407 (1881).
8 Vanvalkenburg v. Ohio, 11 Ohio 405 (1842).
9 Rev. Stats. Ind., chap. 61, sec. 2, p. 352.
10 Similarly, there was a maxim that criminal laws were supposed to be “construed strictly.” Joel P. Bishop, Commentaries on the Criminal Law (2d ed., Vol. 1, 1858), p. 114.
11 Jeffrey