Crime and Punishment in American History - Lawrence M. Friedman [41]
Silent leges inter arma, as the maxim goes: the laws fall silent during war. War is, after all, a serious business, a matter of life and death; and the roar of guns tends to drown out the song of civilization. There were executions for treason during the war; and instances of harshness and abuse, on both sides. In Philadelphia, David Dawson was executed for treason in 1780, along with Richard Chamberlain, whose crime was passing counterfeit money. The scene is described for us by a Quaker, himself in prison for “disloyalty”: A “Crowd of Spectators” had gathered. The two men “walked after a Cart in which were two Coffins a Ladder &c, each had a Rope about his Neck & their Arms tied behind them.” Dawson’s brother and two sisters walked along with him; Chamberlain, too, was “accompanied by one of his Relatives.” The two men were “hanged on the Commons” at about one o’clock.16
Dawson suffered the harsh fate of those who chose the wrong side. But when the war ended, and independence became a fact, the new nation rethought the problem of treason. The law of treason was thoroughly and decisively revamped. Indeed, the Constitution of 1787 defined treason narrowly. Treason was to consist only in “levying War” against the United States, or “adhering to their Enemies, giving them Aid and Comfort.” This reduced the crime to a naked essence, and swept away large pieces of the traditional definition of treason, which (in England) included a number of other offenses we tend not to think of as treason—counterfeiting, for example, or killing a judge or high government official.17
The Constitution also put procedural restrictions on trials for treason. No one could be convicted of this crime “unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court”; moreover, the punishment could not include “Corruption of Blood, or Forfeiture except during the life of the Person attainted” (Article III, section 3). Treason was the king of crimes; but the Constitution turned it into a constitutional monarch—indeed, conformed it to the requirements, as the framers saw it, of a democratic republic.
PROFESSIONALIZATION
Over the years, there were many crucial changes in the system of criminal justice. One of the most powerful and most marked was the drift toward professionalization. If we take a long-term view of the criminal justice system, from its beginnings in the colonial past to the end of the twentieth century, this is surely one of the master trends of the entire period. In the beginning, as we noted in chapter 1, there were no actors in the system who spent all their working lives in criminal justice. There were no police, professional prosecutors, public defenders, prison wardens, probation officers, detectives, social workers, and the like. There were also few full-time criminals. Laymen, amateurs, and ordinary judges (some of them without any training in law) ran the system, together with a few lawyers, and a ragbag of constables, night watchmen, and haphazard jailers.
The movement away from the amateurs has been strong and (apparently) irreversible. Still, if we compare the United States with other countries, American criminal justice retains a certain amateur flavor to this very day. The jury gives the lay person power at the very core of the system. The history of the jury shows a steady decline in the rate of use of this body; but the jury is still with us, a panel of twelve, picked up off the street, as it were, that holds the power of prison or freedom, sometimes the power of life or death. The right to a jury trial is engraved in the Constitution; there is no chance it will die out completely.
American judges, too, are in a way less professional than judges in most other countries. They are not trained as judges; only as lawyers (and in earlier years, sometimes not even that). Federal judges are appointed; and they serve during “good behavior,” which means,