Crime and Punishment in American History - Lawrence M. Friedman [35]
The Eighteenth Century
Research on the colonial legal system has been heavily slanted toward “origins,” that is, the seventeenth century. There is, however, a growing body of research on the eighteenth century, a period of significant change and growth in which the tight reins of the theocracy loosened under pressure. William Nelson carefully examined prosecutions in seven counties in Massachusetts between 1760 and 1774. A fair number of cases (13 percent) were for religious offenses: profanity, nonattendance at church.113 There were still many prosecutions for sexual offenses—fornication accounted for almost 38 percent of the cases in these counties. But almost all of these were brought against mothers of illegitimate children. There had been a crucial change in the nature of these prosecutions. They were no longer directed at sin as such; the point was to nail down responsibility for raising and supporting bastard children. Fornication prosecutions, then, had become a kind of welfare law; a prelude to paternity proceedings—a “kind of registration procedure whose purposes were only coincidentally related to the punitive assumptions of the criminal law.”114
The change was only natural; colonial society itself had changed. Towns were bigger, more diverse; the population was growing; magistrates and divines had lost some of their control. The criminal justice system shifted focus, then, from victimless crimes to more conventional crimes—in particular, crimes against property. Figures for Virginia, too, suggest something of a shift away from morals crimes in the course of the eighteenth century.115
In addition, the criminal justice system became more “English,” more concerned with legal niceties, more technically “correct,” less rough and ready. It came to resemble more the law of the mother country, because society had drawn a bit closer to the overseas model. The small pioneer settlements had moved inland; places like Boston and Philadelphia were still a far cry from London, but they were nonetheless cities, centers of a kind of urban life.
The eighteenth century was the century of the American Revolution, a century of increasing strain between colonies and mother country, ending in war. There were a number of important political trials. One of the most notable was the trial of the printer John Peter Zenger in New York in 1735. Zenger had printed, in his newspaper, articles that attacked the royal governor. He was charged with seditious libel; but the jury refused to convict him.116 The Zenger trial has gone down in history as a landmark on the road to a free press; and perhaps it deserves that fame. Zenger’s lawyer, Andrew Hamilton, tried to argue that truth should be a defense to the charge of seditious libel. The judge felt otherwise ; and he had the law on his side.
This strikes a modem reader as strange. But as far as authority was concerned, truth was irrelevant. The real crime was disorder, ridicule, disobedience, rocking the boat; the critique itself was the crime. Hamilton attacked this notion. When the judge refused to allow his point, Hamilton argued that the jury was the last word on law as well as on fact. In any event, Zenger walked out of the courtroom, free.117
The struggle over political justice grew more and more heated, until it ended in bloodshed and war. Behind the Stamp Act controversy, the writs of assistance controversy, the arguments over the acts of trade, the trials after the Boston Massacre (1770), were two sharply differing conceptions of political authority—and of the part that criminal justice was to play in the polity. British conceptions were in essence still autocratic. Autocracy, however, had decayed dramatically in the colonies. Something new was sprouting out of the rich dirt on this side of the Atlantic. What watered it and weeded this garden