Crime and Punishment in American History - Lawrence M. Friedman [37]
The system, all in all, aimed at honesty and fairness in the use of evidence ; it made increasing use of juries of honest neighbors; it was, in general, not perverted by crass considerations of political expedience; it was fairly independent, within its own frame of mind. Colonial justice was not, on the whole, corrupt; judges and magistrates were mostly strong-minded men, not fawning tools of the crown.
But some aspects of the system seem strange to us, and distinctly unfair. Today it seems obvious that a person accused of crime had better get himself a lawyer; otherwise, he will be hopelessly outgunned. But England did not allow defendants to use lawyers. In theory, the judge would look after the legal rights of the defendant. Criminal justice in England before the days of the lawyers120 was, in a sense, an act of state; it was part of the machinery of government, and the scales of justice were tilted accordingly. The system of private prosecution seemed to suggest a rather different message: a kind of indifference to the prosecution of criminals. Both the lawyerless trial, and the system of private prosecution, bent the administration of justice toward the interests of the rich and powerful.
The colonies, as we have seen, gave up on private prosecution in general; but colonial trials were at first as lawyerless as trials in England. Civil trials, in the early years, were almost as lawyerless as criminal trials. There were, after all, very few trained lawyers in the colonies before the eighteenth century. Judges, too, were for the most part not law-trained. Early colonial leaders tended to be, on the whole, rather hostile to lawyers. Change came about on a piecemeal basis. The eighteenth century saw a more plentiful supply of lawyers.121 Under New York law, counsel could appear in felony cases, but only to help out on points of law. (In misdemeanor cases, oddly enough, the defendant could use a lawyer at any stage of the proceedings.122) In South Carolina, an act of 1731, after reciting that in criminal trials many innocent people might “suffer for want of knowledge in the laws how to make a just defense,” gave defendants in felony cases the right to hire “so many counsel, not exceeding two, as the person ... shall desire.”123 In Virginia, attorneys were taking part in criminal trials in the early eighteenth century; a statute of 1734 gave prisoners the right to “counsel” in “all trials for capital offenses”—if they could afford it, of course, which few could.124 The right to counsel was ultimately written into the Bill of Rights; this guarantee did not come completely out of the blue but was grounded in colonial experience. The revolutionary generation would give due process a push; and there would be a number of spurts and leaps in the next two centuries. But a certain amount of groundwork had been laid in the colonial years as well.
II
FROM THE REVOLUTION TO THE CLOSE OF THE NINETEENTH CENTURY
3
THE MECHANICS OF POWER: THE REPUBLICAN PERIOD
IN 1776 THE COLONIES DECLARED THEMSELVES INDEPENDENT; AND FROM THAT time until 1781, they were engaged in a desperate war with England. It was a war for political independence, a civil war in which many residents had to choose sides, some of them reluctantly. The upheavals of war necessarily left marks on the criminal justice system.
But that system, on the whole, survived the Revolution, and fairly intact. War itself caused temporary local disruptions of process; but the criminal courts kept their basic structure, their methods and procedures. Here there was no revolution, at least not initially. In part this was because the real American Revolution was not the war itself, or independence, though these were, of