Crime and Punishment in American History - Lawrence M. Friedman [39]
They had a point. English criminal justice was a patriarchal jumble, a peculiar mixture of extreme legalism and extreme discretion. The penal code seemed utterly pitiless; anybody who stole so much as a silver spoon or two could be sent to the gallows. But, as Douglas Hay has argued in a brilliant essay, there was an inner and perhaps subconscious logic to the system.3 Many poor souls were indeed sentenced to death, and many ended up swinging from the gallows. But others escaped death, because some squire or noble put in a word for them, and evoked the king’s mercy. This combination of mercy and terror, Hay argues, built a stronger, more efficient structure of social control than terror alone could have done.
This kind of system did not suit the American condition, or the American mind. It appeared (and was) autocratic. It depended on patronage, on the networks that tied together the big landowners in England, the crown, the nobility; on the dependency of poor tenants and farmers who rented or held land on great estates. That system was lacking in America.
A republican criminal justice system would look quite different. It would not tolerate cells of uncontrolled discretion, if at all possible. Popular government was supposed to be a government of laws, not of grace and favor. This meant that all crimes, and their punishments, should be embodied in a single, clear, definitive code.
Law had to be an open book. “Laws, to be obeyed and administered, must be known; to be known they must be read; to be administered they must be studied and compared. To know them is the right of the people.” Edward Livingston wrote those words, introducing his proposed penal code for Louisiana in 1822.4 In the event, Louisiana did not adopt the code; but the code idea made important conquests in many states, and a reform spirit pruned the criminal law of those features that looked the most irrational.
Codification and the republican idea, for example, were in conflict with the concept of the “common-law crime.” This term had two rather different meanings. It referred, in the first place, to traditional crimes—acts recognized as crimes whether or not there was a specific law on the subject, because “everybody” simply knew these were crimes. Murder, in other words, was a common-law crime, whether or not some state had a formal text that prohibited murder. Of course, every state in fact did have a law against murder; this meaning of the term was therefore not very important.
The other sense of the term carried more weight. To put it bluntly, it referred to the power of courts to invent new crimes. A penal code, if it was (in theory) gapless and complete, would put an end to the power of judges to create new common-law crimes. In United States v. Hudson and Goodwin, decided in 1812, the defendants had been indicted for libeling the president and Congress (they had, in print, accused the president and Congress of “having in secret voted $2,000,000 as a present to Bonaparte, for leave to make a treaty with Spain”).5 The criminal laws passed by Congress did not cover this offense in so many words. The Supreme Court felt this was a crucial—and fatal—flaw. There was no such thing as a federal common-law crime. Unless Congress gave an explicit green light, by passing a law, the courts had no power to punish, no matter what a person may have done.
This was, of course, a federal case; the decision had strong overtones of states’ rights. This was early nineteenth-century federalism—a niggardly view of the power of Washington, as compared to the power of the states. The states were, in fact, much slower to rid themselves of the concept of common-law crime. In a Maine case in 1821, defendant dropped the dead body of a child into the Kennebec River. No statute made this a crime as such; but the defendant was convicted, and the highest court of Maine affirmed. From childhood on, said the court, “we all have been accustomed to pay a reverential respect to the sepulchres of our fathers.” There