Religious beliefs played heavily in legal thinking of the early colonial period, a period dating from 1607 to the end of the American Revolution (1775–83; a war fought between Great Britain and the American colonies in which the colonies won their independence). The modern American criminal justice system has its roots in the legal concepts carried by early English settlers to the New World. Drawn from the English legal system the colonists knew back home, colonial law evolved substantially through the next three centuries from the time of the first settlements up to the Revolutionary War. Following the war, independence from England allowed a distinctly new American legal system shaped by the experiences of the early colonists.
European settlement of North America
In 1492 the explorer Christopher Columbus (1451–1506) arrived from Spain to what Europeans referred to as the New World. Some seventy years of exploration of the North American continent by various European adventurers followed before settlements began. Explorers discovered the New World was inhabited by many American Indian societies with various legal systems that had developed over thousands of years.
Despite finding existing societies in the New World, Europeans considered Indian culture inferior to their own heritage and decided to create their own settlements. In 1565 Spain created the first permanent European settlement at St. Augustine on coastal land that later became part of Florida. Through the next century, however, most colonists who arrived from Europe to settle the eastern coast of North America were from England. Others came from France, Germany, Holland, and Ireland. Sir Walter Raleigh (c. 1554–1618), with the permission of Queen Elizabeth I (ruled 1558–1603), attempted settlement of the first British colony in 1585 on Roanoke Island off the coast of what would become North Carolina. Known as the "Lost Colony," the Roanoke settlement proved unsuccessful as the colonists vanished without a trace. Their fate remains a mystery to this day.
The curious disappearance of the Roanoke colony did not prevent enthusiasm for colonization of the New World. News of a continent with unlimited opportunities spread throughout Europe. A population growth spurt in the late 1500s and early 1600s had left many in crowded European cities without jobs or land. Religious intolerance and persecution (being treated badly because of one's religious beliefs) was also common. Thousands of Europeans looked to a new beginning across the Atlantic Ocean.
The first half of the seventeenth century saw the establishment of many permanent European settlements in the New World. The British royalty, eager to gain control over any valuable natural resources that might be found, began granting charters (documents granting certain rights to a person, corporation, or group of people) for establishing colonies in the New World. The charters went to companies run by adventurous merchants who recruited settlers. King James I (ruled 1603–25) chartered the Virginia Company of London in 1606.
Jamestown and Plymouth
In 1607 about one hundred settlers sent by the Virginia Company arrived at Jamestown, the first permanent British settlement. It later grew into the Virginia colony. The English merchants who organized the Jamestown colonists expected prosperity or wealth from the venture. They were particularly interested in sources of gold. Not finding great fortune and treasures, the colonists began growing tobacco by 1612 for shipment back to England. Tobacco provided a steady economic base for the young settlement. In 1619 the colonists formed their first representative legislature (body of persons authorized to make and change laws) called the House of Burgesses.
Another settlement occurred in 1620 when the Puritans, English Protestants who opposed the Church of England, traveled across the Atlantic Ocean on the Mayflower. They landed in New England and established the Plymouth settlement. Also known as Pilgrims, they came to America seeking religious freedom rather than economic gain. Before leaving the ship, the Pilgrims created the Mayflower Compact, an agreement to provide "just and equal laws" in their settlement. They agreed to abide by rules for the general good of all.
Half of the Pilgrims died during the harsh winter of 1620–21 but the Plymouth colony managed to survive. Settlers spread out to establish New Hampshire in 1623. In 1630 approximately one thousand Puritans set sail from England in eleven boats for the New World where they established more strict religious communities including the new settlement of Boston. Connecticut was established in 1633 and Rhode Island in 1636. By 1642 Plymouth had grown into the Massachusetts Bay Colony with twelve thousand inhabitants. In addition to family farms, small industries developed around fishing, lumber, and crafts.
Only a few years after the settlement of Plymouth, more colonists, including non-English settlers, arrived a short distance down the coast. In 1624 Dutch colonists from Holland established New Amsterdam on what would become Manhattan Island. They expanded settlement up the Hudson River Valley, later part of New York State. Further down the coast the Calverts of Roman Catholic faith, who had fled religious persecution in England, founded Maryland in 1632. Protestants also arrived in Maryland, and in 1649 Maryland established the first religious toleration act to grant religious freedom in the colony.
Other non-English colonists arrived during this period, including the Swedish in 1638 who established New Sweden, later the location of Delaware. The more numerous English acquired the New Netherlands and New Sweden settlements in 1664 under a charter held by James, Duke of York, brother of King Charles II. New Amsterdam, renamed New York City after the Duke, became a shipping and trade center.
Establishment of colonies continued into the second half of the seventeenth century. In 1663 the British king issued charters for settling lands south of Virginia. The southern charters eventually lead to the establishment of North Carolina and South Carolina in 1712 and Georgia in 1733. The economies of these three colonies varied from small farms and fur trading in North Carolina to large farms, called plantations, owned by wealthy landowners in South Carolina and Georgia. On the larger farms rice and indigo (plants that yield dark blue dye) were major cash crops. Because of the large size of these plantations, the colonists needed more manpower to work the land. They began importing black Africans as slaves to plant, tend, and harvest the crops. Because slavery was banned in England, new laws had to be created to make slavery legal and acceptable in the colonies. New laws, known as "black codes," also dealt with such problems as how to buy, sell, and inherit slaves.
Back to the north of Virginia, William Penn, a Quaker, founded Pennsylvania in 1681. Quakers are a Christian group that formed in England in the mid-1600s who oppose all wars and practice religious tolerance, or acceptance of differences. Penn sought to create a colony, like Maryland, where Quakers and people of other faiths could enjoy religious freedom. Quaker colonies had laws emphasizing harmony and were in favor of solving disagreements peacefully. Remarkably, the Quakers lived in peace with the Indians for the next seventy years.
Despite the many kinds of people living in the colonies, the English speakers and their society dominated and their concepts of law and order became widely accepted. By the mid-1700s the English settlers had formed the original thirteen colonies, each with its own governor and legislature, but all under control of the British king. The thirteen colonies were Virginia, Massachusetts, Connecticut, Rhode Island, New Hampshire, New York, New Jersey, Delaware, Maryland, Pennsylvania, North Carolina, South Carolina, and Georgia.
The once small population of the thirteen colonies grew to some three million people by the time of the American Revolution. By 1783, however, 96 percent of the colonists still lived in rural areas. The uncertain nature of their daily struggle to carve out a life in the New World shaped colonial law. Throughout the colonial period, newly created laws focused on rules of behavior to help assure survival of the colonies by offering hope and stability.
Factors influencing early colonial law
Though the arriving colonists had familiarity with complex European legal traditions, there were few trained lawyers or law books available, so they had only basic ideas of the English common law system. The new setting of the colonies, so different from civilized England, called for new solutions to new problems. Several factors influenced changes in English law, including the fragile frontier existence, an American society distinct from that of England, and later the establishment of slavery.
Fragile frontier existence
Perhaps the most important factor in the fragility of frontier life was trying to establish a way of life in the isolation and desperate condition of the settlements. The first European settlements along the East Coast of North America were tiny and isolated. Of the original 105 settlers in Jamestown, only 38 survived the first seven months from May to December in 1607. The area around Jamestown was marshy and proved to
be poor farmland. It was also a breeding ground for malaria-carrying mosquitoes. The survivors slowly spread out onto surrounding lands but the harsh winter of 1609–10, known as the "starving time," again nearly wiped out the struggling Virginia settlements.
Adding to this delicate existence were numerous American Indian tribes. The Indian peoples greatly outnumbered the early European settlers and the colonists were nervous and suspicious of them. Relations with the Indians deteriorated quickly as the English treated them with little or no respect. Soon the settlers endured not only disease and starvation but hostile Indian attacks.
Given their isolation and vulnerability, the colonists developed their own strict ways of maintaining order so as to protect themselves and allow their small settlements to grow. They used their knowledge of a common law system to come up with new laws. The first colonial legal code, titled "Lawes Divine, Morall and Martiall," was drafted by the Virginia Company in London and sent to the Virginia Colony in 1611. The laws were harsh and military-like, reflecting the serious problems of the settlement. The English wanted to avoid another disaster like the "Lost Colony" of Roanoke twenty years earlier. Their strict behavior codes and hard work, however, paid off. The colonies grew and the communities became more established, able to support its citizens. Other colonial laws followed but were not as severe as the "Lawes Divine."
A new social order
Another factor influencing the development of colonial law was a New World social order very different from the one found in England. The legal system in England was built around the aristocracy (wealthy landowners). No aristocratic social order existed in early colonial society. In most settlements, religion was the driving factor in place of money. Colonial laws were created to reflect these religious beliefs instead of being based on land ownership.
Many early settlers who left England were fleeing religious persecution, or mistreatment. These included the Puritans in New England, the Quakers in Pennsylvania, and the Roman Catholics in Maryland. The fresh start in the New World presented an opportunity to build new societies based on godly ways; what colonists considered good and right in the sight of God dictated their laws. The most important concern was maintaining an orderly, religious life in their small communities. Obedience to those in power, inspired by religious teachings, was most important to the order and survival of each settlement.
Differences from the English criminal justice system
As the first settlements became established, one major difference from the English criminal justice system occurred with the colonial courts. Over several centuries England had developed many kinds of special courts to hear various types of cases. Given the small populations of the North American settlements, the colonial court systems and their proceedings were much simpler and more informal. At first some colonies had too few people to even hold grand juries (groups of citizens gathered to determine if enough evidence exists to have a trial). It would be years before the colonial criminal system became more formal and complicated like those of later years.
The legal system most familiar to seventeenth century colonists was English common law. English common law had been in use for several centuries in England before the New World's settlement. Common law provides a set of rules "commonly" used to solve problems. It is built on a history of judges' decisions rather than relying on lawmaking codes, or laws. In England the decisions that contributed to a common law tradition were written down and compiled annually in legal volumes available for judges to study. Common law developed a reputation for fairness in the courts as well as the protection of individual rights and private property.
Common law distinguished two basic types of crimes, the very serious called felonies and the less serious called misdemeanors. For the more serious crimes, evidence concerning the crime was first heard by a grand jury consisting of citizens from the community. The grand jury decided whether enough evidence existed. If so, an indictment (official charges) was issued charging the person with a crime and leading to a court trial before a regular jury. The judge and jury would then hear the arguments presented by both sides and offer a verdict.
Early English common law had some distinctive qualities. Unlike modern law, no district attorneys or public prosecutors brought court cases against the accused. It was up to the victim of the crime to bring the case to the court and pay for it. As a result, only people of means (having money or property) could pursue prosecutions. Under such a system, many citizens could not afford to press charges against someone who victimized them.
Colonial justice was different from the English legal system in other ways besides the organization of the courts. Early colonial courts had no "professionals," like judges and lawyers. Since the English legal system had been developing for centuries, it had highly trained judges and lawyers who were wealthy citizens of English society. They had no desire to travel and resettle in the New World, so the men running the colonial courts usually had no legal training and were merely respected persons within the community. Since they had no legal training, there was little difference between ordinary citizens of the community and those attempting to manage public law within the courts.
Salem Witchcraft Trials
Trials of the early colonial justice systems often dramatically reflected how different the world of the colonists was from American society in later centuries. The Salem Witchcraft Trials of 1692 is perhaps the most infamous event to highlight these differences. Belief in magic and witchcraft was widespread in the 1600s. Witchcraft, which people believed represented direct human contact with the devil, was one of the most serious crimes in the early colonies. A series of misfortunes—fires, epidemics, costly battles with Indians—affected Massachusetts colonists in the 1670s, 1680s, and early 1690s. The settlers began looking for what was causing such misery.
When a number of persons began exhibiting odd behavior described as screaming, trances, and seizures, the people decided they were cursed or under the spell of witches. Settlers would also explain the sudden death of livestock to witch curses. They believed witches were responsible for bringing God's wrath upon their settlements. An effort to rid the region of these supposed witches led to 154 trials throughout Massachusetts beginning in the spring of 1692. Because of a large number of trials in the village of Salem, they became known as the Salem Witchcraft Trials.
Based on testimony by respected citizens who claimed to have been placed under spells and tortured by visions created by accused, a number of the men and women on trial for witchcraft were convicted. Nineteen of those convicted were executed, including thirteen women. Ten of the executions took place in Salem. Four others died in prison, and one person was crushed to death by rocks for refusing to respond during questioning.
After several months of trials citizens grew uncomfortable with what was unfolding in their communities. The special witchcraft trials were finally halted in late October. In addition, new laws were passed more precisely defining "witchcraft behavior" and what kinds of conduct were subject to arrest and prosecution. Although a few accusations continued, most were dismissed. Witchcraft trials disappeared in the early 1700s.
Though the colonies in the earliest times were led by strong, assertive individuals, they were clearly not dictatorships. The common people were free to use the courts to fix problems and they did so often. The courts were open and available to everyone; they were the place to relieve community tensions and solve disputes between the colonists. Often the opportunity to talk about a complaint was enough
to satisfy the victim without the court actually reaching a verdict.
Local courts and magistrates
While the colonies were different and changes occurred independently through the next century, some basic traits in the court system were widely shared. The major figure in the colonial court system was the magistrate (a local official with limited power), often called justice of the peace or, simply, judge. This person mostly dealt with petty (minor) crimes in his local area. The local trial courts in the colonies were commonly called county courts. Judges overseeing these courts were not professionals but usually religious or political leaders. Some colonies also had higher courts to hear appeals from the county courts. As communities grew larger they developed special courts to hear certain kinds of cases. Occasionally appeals from these various courts would be taken back to England's courts.
Rarely did colonial courts use juries or lawyers. In early colonial times it was difficult to assemble a jury in many areas since the settlements were so small and far apart. Juries mostly served only when the death penalty was involved. For petty crimes, a magistrate heard the case and decided the verdict. Such local courts heard thousands of cases.
Magistrates were fully in charge of the colonial court proceedings. These early colonial justices firmly believed their main role was to enforce God's plan. Their aim was to force a confession from the accused and make them repent (apologize for) their sins. The goal was not necessarily punishment, but confession and bringing order back to the society. If a defendant requested a jury, he or she was viewed as disrespectful of the judge's authority. Many defendants favored not having a jury as they preferred to rely on the mercy of a judge who was often more interested in seeing that the accused give in to his authority than to provide justice.
As the seventeenth century progressed and populations in the thirteen colonies grew, the legal system became more similar to the English court system. Use of juries, dating back to medieval England, increased in the colonies as did the number of lawyers. By the eighteenth century the jury trial was common. By 1730 the defendants were allowed to have defense lawyers.
The legal process
The local criminal process in early colonial times usually went as follows: when the magistrate heard that a possible crime had been committed, he sent the marshal or a deputy to bring in the suspect. The magistrate questioned the accused, often in the magistrate's personal home with other magistrates or deputies present. No lawyers were involved. Based on his findings, the magistrate either dismissed the case or scheduled a trial. Usually the defendant was allowed to go free until his trial with no bail (money held to make sure the defendant showed up for trial) required. These were small communities
with few places for the accused to go or hide. Records show that defendants rarely failed to appear for trial.
Without juries and lawyers, the colonial trials moved quickly as witnesses gave their testimony. Since the magistrate who was to rule in the case was the same who ruled as to whether the person should stand trial, the verdicts were almost always guilty. Trials mostly gave defendants an opportunity to publicly admit guilt and repent so they could resume their roles in society. Order was thus restored. The trial and repentance also served to publicly reinforce rules of conduct and to discourage others from breaking the rules. In such intimate communities, the colonial justice system provided social drama and entertainment. The trials were often well attended by community residents.
Colonial laws emphasized the survival of the settlement by keeping social order. Survival relied on positive contributions from every individual. Given the strong religious beliefs of settlements, colonial law was most concerned with repentance and the return of the defendant back into community life. The colonists also believed in individual liberty (freedom), as first expressed in the 1215 English document, the Magna Carta. Though the Magna Carta had actually established very limited rights, by the 1600s it was believed to define a wide range of individual freedoms. With survival plus individual liberty in mind, magistrates and community leaders set about defining crime.
Policing the Colonies
In the seventeenth century there was no professional police force. Ordinary citizens generally volunteered to enforce orderly conduct. Some communities such as the Dutch settlements in New York and in Boston tried paying "watchmen" in the mid-1600s to look after the behavior of their citizens, but the programs were dropped due to expenses. Nightwatchmen patrolled the streets looking for fires and disturbances. Constables, on duty during the day, apprehended offenders and enforced local ordinances (laws). The early colonial policing system proved loose and unreliable.
As the colonies became more established and populated, the governor in each colony began appointing sheriffs to enforce laws. The sheriff, running the jails, selecting juries, and managing prisoners, served as the top government agent in the county. Usually the community helped the sheriff to capture suspects. Sometimes a posse, a group of people assembled by a sheriff or other county official to help maintain order, was organized. A coroner (a public official who determined the cause of death when someone died unnaturally) was also appointed to look into violent or unexplained deaths, and to organize special juries to rule on cause of death cases.
Colonists, particularly those in the Puritan settlements of New England, considered sin as crime and crime as sin. Since the criminal justice system was a part of the existing religious order of the community, all offenses were against God and society. Laws in the Puritan regions were filled with religious messages. The 1648 Laws and Liberties of Massachusetts, for example, often quoted biblical passages.
Colonists considered lying, idleness (not working), drunkenness, various sexual offenses, and even general bad behavior as crime. Playing certain games in the Puritan colonies, such as shuffleboard or cards, was a crime. Those who flirted could face fines and warnings. Punishment for these lesser offenses was similar to parents punishing their children. Many of the early colonial laws were aimed at keeping the servants, slaves, and youth in line. The courts used shame, scorn, and humiliation to teach lessons for misbehavior. More severe crimes led to whipping and placing the guilty in wooden frames that had holes for heads and hands, called the pillory.
Heresy (holding a belief that conflicts with church teachings) was a major crime that could lead to the most severe sentence—banishment (being forced to leave the colony). A banished individual caught returning to the settlement could be put to death. Another major crime was blasphemy (showing a lack of respect toward God). Blasphemers could be sentenced to a whipping, to the pillory, have a hole made in their tongue with a red-hot iron, or stand for a period of time on the gallows (a wooden structure built for hangings) with a rope around their neck. Other laws punished colonists for not properly observing the Sabbath (Sunday, observed as a day of rest and worship by most Christians) and skipping religious services. Some colonial laws even banned traveling on Sundays. Various forms of these Sunday laws existed in all colonies.
During the early colonial period settlers believed in the supernatural, or unexplained occurrences. The world was full of omens, signs, and marks representing the invisible world. As a result, witchcraft was considered one of the most serious crimes. It was believed that people who practiced witchcraft and had made pacts with the devil.
Like court proceedings, punishment in colonial America was a public event intended to discourage other individuals from committing crimes against the social order. Whipping, the most common form of punishment, generally attracted an audience. Whipping posts were located next to the courthouse so punishment could be carried out quickly following the trial. The goal was repentance of the convicted along with swift lessons for the whole audience.
Besides whipping, branding, cutting off ears, and placing people in the pillory were common publicly administered punishments that set examples for others. As described in noted author Nathaniel Hawthorne's novel The Scarlet Letter (1850), men and women convicted of certain crimes had to wear letters such as a capital A on their clothing in clear view for conviction of adultery (a married person having sexual relations with someone other than his or her spouse) or a B branded on their forehead for burglary. Banishment was a more extreme punishment.
Though less prevalent than the other forms of punishment, hangings also occurred in public places. The convicted were expected to publicly confess while standing on the gallows just prior to their hanging. Many of those attending considered the hangings to be deep spiritual experiences. Executions were far less common in the colonies than in England. An exception was execution for the crime of adultery in
Massachusetts that lasted until the mid-1600s. Murder and rape (forcing someone to have sexual relations) were the main capital offenses as well as repeat offenders in other serious crimes. Use of the death penalty varied among the colonies and was more commonly used in the southern colonies, particularly when applied to slaves in the eighteenth century.
With the colonial courts acting as an arm of the church, in some instances both the courts and the church handed out punishment. For example, for unmarried men and women caught having sexual relations, the court could have them whipped, fined, or placed in stocks. Women bearing illegitimate children (born when the woman was not married) were often whipped. In addition to the court punishment, the church scolded defendants, denied certain privileges, or issued the ultimate punishment—excommunication (taking away the rights to church membership).
Courts did not use probation (sentencing an individual to commit no crimes for a period of time instead of going to jail) as punishment. Colonies did, however, make wide use of bonds in the place of probation. Courts required people who were regarded as troublemakers to put up money (security) to guarantee future good behavior. Those punished with whipping or fines also had to post money to guarantee no further troubles. Bonds were also posted to guarantee appearances at trials as in New York. In some places such as Virginia some members of the community posted money for the accused. The bond system worked well in the small communities where everyone minded (or paid attention to) everyone else's business.
Taking away a person's liberty or freedom was not a common way of punishing criminals in the colonial period. In New York the courts handed out only nineteen prison sentences between 1691 and 1776. With such a small population people were too valuable to local economies to put them away. The colonists also had little money to build prisons and feed prisoners. Prisons were not established until much later in the nineteenth century. Colonial jails primarily held people awaiting trial or who owed money to others (debtors). Debtors were free to leave during the day and work to pay off their debts and then return for the night. Workhouses also existed for the homeless, unemployed, and impoverished (poor). They were expected to learn the work ethic during their stay.
The Colonial Criminal in the Seventeenth Century
Colonial criminals were almost all men. Men were accused of 95 percent of violent crimes and 74 percent of thefts, or an overall 80 percent of the serious crimes. Witchcraft was one of the few crimes where women were the majority of the accused. Another female-related crime was infanticide, in which women killed their newborn children. Those in the lower ranks of the colonial social order, such as laborers, apprentices, the poor, and slaves, received most of the punishment courts handed out.
Controlling slaves was a primary concern of the criminal justice system in the colonial South. Slave owners and overseers policed slave society. The whip was a symbol of authority and used frequently. Whipping was administered swiftly, usually on the plantation, and was often severe. If death resulted, the overseer was normally not charged with murder unless the situation was extreme. Slaves were considered property, and the courts did not expect that a master would intentionally destroy his own property.
Eighteenth century developments
The influence of religion on criminal justice steadily decreased through the 1700s. Towns grew and their populations became more diverse. Social and technological change brought new issues in addition to moral concerns. The criminal justice system shifted from moral crimes (sin) to crimes against property such as stealing or trespassing.
Another example of eighteenth century change was the increasing importance of the "due process" concept in American courts, a concept not embraced in England. Due process means to protect the rights of the accused and not issue a verdict or penalties without using fair lawful procedures (innocent until proven guilty). The concept decreased the power of the judge and the government in controlling the courts. It required fair trials, arrests, and punishment.
Colonies also added district attorney positions. A district attorney is a lawyer who prosecutes crimes on behalf of the community. No such position existed in England where it was up to the victim to pursue the case and pay for prosecution. Since it usually cost too much money for colonists to pay for prosecutions themselves, the popular notion emerged that it was a government or public responsibility to prosecute criminals. This change in the legal system demonstrated how the colonial system helped common people who were the victims of crime. The use of juries also increased. The duties of professional lawyers, however, were still limited to advising the accuser or defendant. Lawyers did not argue cases before the judge or jury.
One unusual aspect of the colonial criminal justice system was dropped as time passed. A tradition from the Middle Ages gave those who could read lighter sentences than those who could not read. By the late 1700s this rule was eliminated from the colonial legal system.
Toward an American legal system
New ideas about criminal justice continued to be defined in American colonial law through the eighteenth century as the colonial and English societies grew apart. For example, the king was considered the source of all English law. The colonies did not agree, considering God the source of justice. The Revolutionary War greatly affected the criminal justice system because America's new independence from England ended the influence of royalty. In the 1780s the Founding Fathers of the nation adopted the republican (a form of government where citizens hold the supreme power) ideal that people were the source of law. As a result, new individual rights were built into the emerging American legal system.
For More Information
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Butler, Jon. Becoming America: The Revolution Before 1776. Cambridge, MA: Harvard University Press, 2000.
Ferling, John. A Leap in the Dark: The Struggle to Create the American Republic. New York: Oxford University Press, 2003.
Hoffer, Peter C. Law and People in Colonial America. Baltimore: Johns Hopkins University Press, 1998.
McFarlane, Anthony. The British in the Americas, 1480–1815. New York: Longman, 1994.
Reiss, Oscar. Blacks in Colonial America. Jefferson, NC: McFarland & Company, 1997.
Taylor, Alan. American Colonies. New York: Viking, 2001.
History of Jamestown. The Association for the Preservation of Virginia Antiquities. http://www.apva.org/history (accessed on August 20, 2004).
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