Crime and Punishment in American History - Lawrence M. Friedman [38]
Historians for a long time have argued about the nature of the American Revolution. Was it a revolution at all; and if so, in what sense? Did this “revolution” make deep changes—the French and Russian revolutions certainly did—or was it little more than a kind of palace coup, in which one set of elites shuffled off the stage, to be replaced by another?
Obviously, since men fought and died, they thought something fairly radical was at stake; but what was it? It does seem clear that the Revolution boiled up out of a ferment of new ideas, including ideas about the rights of man, and, not incidentally, about criminal justice. The American leaders were intelligent men who read books and discussed ideas. They were very much men of the Enlightenment. They read and absorbed the work of Cesare Beccaria, on criminal justice; they knew about Jeremy Bentham, John Howard, and other English writers on crime and criminal justice.1
Moreover, this was a huge continent, almost empty (from the colonists’ standpoint); there was land to bum. A vast ocean lay between the American continent and the mother country; and the British government did not know at first how to run an empire. (How could it?) There emerged something resembling an imperial policy in the eighteenth century, but by then it was probably too late. The colonies had grown up; they were adults, not children; and they had minds of their own. American reality had formed those minds in rather un-British ways. British institutions could not and did not reproduce themselves, with their traditional strength, on the American side of the ocean.
British criminal justice was monarchic and authoritarian; American criminal justice was hardly democratic (in our terms), but it defined authority in a very different way. Power was, on the whole, quite local. In English legal theory, the king was the “fountain of justice,” the source of all legal authority. But the colonies never bought this idea. For the Puritan leaders, God was the ultimate source of justice, and, in the course of the eighteenth century, more and more colonists apparently came to feel that the people themselves were the arbiters of justice; the king should himself be bound by law; he was not above and beyond it.
The Revolution swept away what was left of royal theories of justice. It did this literally: the king’s name disappeared from legal forms and writs. That fact itself had a certain symbolism. Law was the locus of legitimate authority, and the people were the source of law. The new “fountain of justice” was the popular will. The old theories had been driven out by a century and a half of self-government, in an open, land-rich, new society.2
This chapter introduces the criminal justice system of the post-Revolutionary period. Three themes stand out: the impulse to reform the law, to make it conform to republican ideals; the evolution toward professionalism; and (running through all of these) the influence of American social conditions, in particular, the fantastic mobility of American life.
Reform and Reforming
The post-Revolutionary age was an age of reform in criminal justice. The Bill of Rights, as we will see, codified ideas about fair trials. Reform of criminal justice was in the air. Parts of the old system seemed chaotic and barbaric. The republic seemed to need a new system, more rational, more modem, more just and humane. Reformers, on the whole, hated the death penalty, and, to a lesser degree, other punishments of the body—whipping, torture, and the like. They hated naked authority. They hated boundless official discretion. They hated institutions of grace and mercy, insofar as they were not governed by principles