Dr. Gayle Olson-Raymer
History 110
Unit 1 - Lecture 5 Overheads
    “The EvolvingColonial Criminal Justice System”
  Below you will find the overheads used in Lecture 5 for Unit 1.  Please note that each individual overhead is separated by a solid line.

Lecture Goals:
  1. To define relevant terms - criminal law, common law, crime, criminal justice system - and examine the roots of their English origin.
  2. To learn how the colonists borrowed English traditions about crime and common law and adapted them to their new environment.
  3. To trace the evolution of crime and criminal justice during the colonial period by asking:
  4. To examine the philosophical roots for a separate system of juvenile justice.

Crime - Definitions and Roots

Crime is a social concept based upon social structure (organization of society) and social norms (ideas, customs, habits, attitudes of people).  As such, crime is considered to be an offense against society.  This concept of crime as an offense against society evolved from English tradition.

Common law was an offense against the country that, as such, was to be prosecuted by the King.  It was based on custom and tradition as interpreted by the judges.  It was not written down in a code that one could easily consult; rather it took its form from the collected opinions of English judges who actually created law when they ruled on specific cases.  As new situations arose and more opinions were formed, the common law grew.

Criminal law defines forbidden offenses against society  - by formalizing the common law - and specifies conditions for enforcing and punishing offenders.

To summarize, beginning in the 1400s, the English, and later the Americans, defined crime by:

And they dealt with such crime through a criminal justice system which

 Categories of Colonial Law

1. Crimes involving sexual acts.  Any sexual act other than traditional intercourse between man and wife was a crime in all colonies.  Sex-related crimes were the most frequent of all criminal offenses during the first 100 years of colonization - between 10 - 22% of all court business. Most common were “fornication before marriage;” bearing illegitimate children; and beastiality.  Sex crimes remained on the books in the 18th Century but were prosecuted less often - except for fornication which was prosecuted not because extramarital sex was immoral, but mainly because of the “practical considerations” of colonial society - adultery threatened family integrity and created the possibility of private violence/disorder; fornication among servants that resulted in childbirth left the new mother less valuable as a servant and society was left to support a bastard.

2. Crimes perceived as socially harmful misconduct.  Almost any act that contributed to public and personal disorder was considered a crime - drunkenness, blasphemy, lying, idleness, Sabbath violations.  Such victimless crimes appear more often in 17th Century court records than any other except sex-related crimes. Sabbath violations among the most prevalent crimes during both 17th and 18th centuries.

3. Crimes against the person - both criminal (dealing with public wrongs which involves social harm and violates the norms of the community) and civil  (dealing with private conflicts with violate relationships between individuals).  According to recent historical examinations of surviving court records in most of the colonies, the most common crimes against the person were slander -approximately 17% of all court business in all colonies; assault - approximately 6% of all court business; homocide -  almost always directed at servants and slaves, or related to domestic and inter-familial disputes; and witchcraft.

In the South, crimes against the person were punished the least of any other category.  Citizens of substance often felt it was their duty to defend themselves, their property, their family, or their honor against any real or imagined threat.  Often, when given a clear choice between observing the law or defending their honor - they choose to defend their honor.  These lawbreakers were treated with dignity and respect.  Juries were reluctant to convict a man of murder or assault if he had committed the crime to defend his honor - and action that was, at best, loosely defined.  Often, those convicted of assault were fined less than a dollar.

4. Crimes against property.   Crimes against property were rare - petty theft was uncommon and grand theft almost never occurred. Why?  Stealing property violated both the sanctity of private property and the code of honor that included a strong sense of economic morality.  People convicted of crimes against property received the most serious punishment which was designed to deter other would-be offenders and shame the culprit in the eyes of the community.

In the 18th Century, crimes against property increased as towns became bigger with more diversity and wealth.  Designating crimes became a way to protect property during the 18th Century.  For instance, in Virginia, hogs were a vital part of a family’s economy - more valuable than sheep.  Its laws made stealing hogs a more serious crime than stealing sheep.  In the late 18th Century, this changed even more.  Crimes against property increased, and in so doing, the concept of crime as a product of sin was challenged by a new social concept - crime was the product of idleness.

Criminal Laws

In the colonies, just as in England, common law was more often used to define criminal activity in the earliest years.  Thus, the local magistrates/judges often made, handed down, and interpreted common law for the community.  By the 18th Century, common law was less prevalent and gave way to evolving determinations of law.

Statutory law, produced by colonial assemblies, governed the colonies.  Today, it is written by Congress and the state assemblies.

Constitutional law,  produced by national and state constitutions, governs the organization of the  state and federal government and its relationship with its citizens.

Case law, comprised of the decisions of state and federal courts,  answers questions not answered in constitutions and statutes and declares unconstitutional those statutes that do not fit into the provisions of state and federal constitutions.

Common law is applied; statutory and constitutional law is designed; case law is interpreted.

While 17th Century colonists primarily turned to English common law in the formation of their laws, they also were responsible for determining new laws that were not only different from England, but they contributed to a distinct legal heritage in America.    For instance, in 1636, the colonists of Plymouth created the first set of written laws in the “New World” - and included four completely new laws:

Civil Marriage - England allowed legal marriage only through solemnization in the church.  Most colonies allowed marriage by officers of the civil government;

Land Descent - English law strictly adhered to primogeniture - descending land to the eldest son.  Most colonies gave every heir an inheritance, but usually doubled the portion to the eldest;

Provisions for Widows - English common law assured a widow a life estate in one-third of all the lands of her husband, but no access to his personal property.  Most colonial laws adopted the practice regarding land inheritance, but also added that the wife had an absolute interest in one-third of all his goods and chattels; and

Recording System - In some English boroughs, recordings of property and lands were practiced, but not routinely enforced.  Most colonies introduced a system of recording sales, gifts, mortgages, and other conveyances of houses and lands which guaranteed the security of land titles.


The process began when a magistrate learned or heard that someone had committed an offense.  He would send out a deputy to haul in the offender.  The magistrate would examine the suspect privately, often in his own home, but with other magistrate or deputies present.  These examinations were “inquisitorial”; the magistrate was firmly in charge - he asked the questions and the suspect answered.  There were no lawyers present, on either side.

If the magistrate felt the man was innocent, or the proof too weak, he could dismiss the case; if there was good evidence, or if the suspect confessed, the case was scheduled for trial.  Until trial, the defendant was mostly free to go about daily life; in New Haven, no bail was required.  This was a small town, a mere village, and apparently it was effective enough to warn a man or woman: appear or else.  According to a study by Gail Marcus, only 4 defendants out of 201 criminal trials that occurred between 1638 and 1658 did not show up after getting such a warning.

The trial itself took place soon, quickly and without jurymen or lawyers.  Witnesses appeared an gave whatever evidence they had.  The magistrate was in firm control.  Of course the magistrate felt fairly sure of guilt before the trial even started; in all but 14 of the 201 criminal trials Marcus studied, the verdict was guilty on all counts.  But the trial was no charade.  It was, in fact, a ceremony of some importance.  It was an occasion for repentance and reintegration: a ritual for reclaiming lost sheep and restoring them to the flock.  The trial “proved to God and men that New Haven was fulfilling its religious mission.  It was a public, pen affirmation of the rules and their enforcement; a kind of “divine social theater.”  It taught people about good and bad, and the wages of sin.  It punished the guilty, and made justice and the law concrete.

...Paraphrased from Lawrence Friedman, Crime and Punishment in American History, 1993:25.

Punishing Those Found Guilty.

The English Tradition.  Besides the time-honored tradition of revenge, at least five forms of punishment were practiced over the past 1000 years:

Restitution, the earliest form instituted by King Ethlebert in the 7th Century, required the offender to repay the victim.

Corporal punishment.  Especially flogging, followed by mutilation (rapists were castrated; gossips had their tongues cut out or lips sewn together; thieves had a hand amputated); branding; painful public humiliation (dunking, pillory)

Capital punishment.   Hanging for common criminals; beheading for nobility, church officials, deposed kings, treasonous government officials.

Exile.  Sent to a distant part of the land.  Since the forested land was largely destroyed by the 15th Century in England, exile lost popularity.

Banishment.  Between 1717 and 1781 - between 50,000 - 100,000 convicts banished to America.

The American System.  Like jury trials in colonial America, the punishment portion of the criminal justice system was clearly a social drama.  All colonial punishments served as public “spectacles of retribution that were intended as dramatic examples of the consequences of crime.”   Today, this is what is known as deterrence.  The colonial punishments included:
Fines (could buy way out of crime; the rich paid and the poor physically punished)
Public penance (Drunks wore the letter D; adulterers the letter A; gossips had their loose tongue clamped with the cleft stick or were dunked into cold water)
Confinement in the stockades or local jails
Extending periods of indentured servitude or condemning one to indenture
Whipping - most common corporal punishment
Goal was not just to punish offenders, but to force their confession and gain repentance.  This was equally as public.

 The Colonial Criminal Justice System

1. The definition of American criminal law and the creation of the criminal justice system were evolutionary, not revolutionary, actions that borrowed what was useful from English legal tradition and adapted that to the unique physical and social characteristics of America.

2. The primary goals of the colonial criminal justice system were defined by the social norms of the times: maintaining a well-ordered, godly society by acting as a safety valve for the community; and forcing offending sinners to confess,  repent, and become productive members of the community.

3. Because crime was equated with sin, religion heavily influenced each and every level of the colonial criminal justice system.

4. The judgment (adjudication) and punishment (correctional) phase of the criminal justice process were marked by a high degree of social drama.  Every action was public and designed to reinforce orderly behavior that matched the ideas, customs, habits, and attitudes of the American colonists.

5. The desire to create order by preventing a great deal of criminal behavior was largely successful during the colonial era - homicide and treason were rare, as were the more minor crimes of theft, burglary, and arson.   The two most common major crimes - assault and slander - were largely the product of small-town life in which everyone knew everybody else’s business.

6. Early efforts to legislate morality -  to enforce, adjudicate, and punish victimless crimes - were largely a failure.

7. The criminal justice system was largely patriarchal and hierarchical.  Sinners were identified, punished, and brought back into the fold by the most influential community leaders.  Their judges were the powerful members of the community who made and enforced the laws that affected the less powerful.

8. A separate method for defining and punishing youthful behavior had arisen through the various colonial codes that specified certain crimes of youth.  These laws set a precedent for the separate legal treatment of youth and for creating a special legal category for youth -  status offenses.

9. Individuals had already found ways to “get around the law” - and most methods  favored the rich over the poor through the use of money.

10.The vast majority of persons who worked in the criminal justice system were amateurs - lay persons who were volunteers or forcibly recruited, who worked part-time - with and without salaries, or who assumed their criminal justice job as just one of many other responsibilities.

11. Colonial Americans could be described as intolerant, divisive, and litigious.  Their litigious nature was most often applied to so-called victimless crimes - actions and conduct that empowered colonists considered to be unacceptable by contemporary standards - and unacceptable sexual conduct.

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