Crime and Punishment in American History - Lawrence M. Friedman [40]
As late as 1881, the concept cropped up in a Pennsylvania court case. A man named McHale, along with some others, was indicted for stuffing ballot boxes. Nothing in the Pennsylvania code exactly fit the case. The court was willing to stretch a point, reaching into the grab bag of the common law. The issue was not “whether precedents can be found in the books,” but whether the acts “injuriously affect the public.” McHale’s acts shook “the social fabric to its foundations”; the court could not let them go unpunished.7
These were, however, isolated cases. The concept of the common-law crime was in retreat throughout the nineteenth century. In Ohio, the high court stated flatly, in 1842, that “With us, there is no such thing as common law crimes.”8 In Indiana, the Revised Statutes of 1852 baldly laid down the rule that “Crimes and misdemeanors shall be defined, and punishment therefor fixed, by statutes of this State, and not otherwise.”9 In practice, too, the concept became less and less important, simply because more and more states passed comprehensive penal codes; by implication, anything not listed was simply not a crime. Judges had too much power, if they could invent new crimes, or extend old ones by analogy.10
Codification was only one aspect of (technical) law reform. In every state (and territory), there were attempts to smooth out the bumps and eliminate irrationalities. Benefit of clergy, for example, with its odor of archaism, its taint of legal fiction, was an early casualty. Also, the tide was running against bodily punishments, and benefit of clergy usually involved branding with a hot iron. In 1796, Virginia abolished benefit of clergy altogether; and in 1807, Maryland followed suit. The Maryland statute specifically replaced branding with imprisonment, which became, as we shall see, the republican punishment of choice.11
REFORM: THE LAW OF TREASON
One branch of law that called for immediate reform was the law of treason. The Revolutionary War created a rather delicate situation. It was, after all, a civil war; the people on both sides looked alike, acted alike, spoke the same language. “The enemy” was not just Great Britain; it was friends, relatives, and neighbors who took the loyalist side. And the colonists themselves were, in British eyes, traitors and rebels, guilty of treason.
The colonies, too, were engaged in defining treason—as one way of dealing with the enemy within.12 The Continental Congress, meeting in 1776, recommended that each colony enact a treason law, aimed at people who would “levy war against any of the ... colonies” or “be adherent” to the English crown, giving “aid and comfort” to the enemy. These were classic phrases drawn from the English statutes on treason.13 Most of the colonies followed this advice.
Some of the statutes were harsh, extreme; the times were desperate. The Virginia law provided for fines and imprisonment for anyone who might “by ... word, open deed, or act, advisedly and willingly maintain and defend the authority, jurisdiction, or power, of the king or parliament of Great Britain.” Many states seized the property of loyalists: conviction for treason, under a New Jersey act of 1778, carried with it “a full and absolute Forfeiture” of the defendant’s estate, “both Real and Personal.”14 A New York law of 1779 listed, by name, dozens of “enemies” of the state, beginning with “John Murray, earl of Dunmore, formerly governor of the colony of New York.” The law declared these men “Ipso Facto, convicted and attainted”; all their property was forfeited and “vested in the people of this state.” They themselves were “for ever banished”; if they came back to New York, they were “hereby adjudged and declared guilty of felony”