Principal Crime And Punishment in America (American Experience)
Due to the technical work on the site downloading books (as well as file conversion and sending books to email/kindle) may be unstable from May, 27 to May, 28 Also, for users who have an active donation now, we will extend the donation period.

Crime And Punishment in America (American Experience)

,
Año:
2010
Idioma:
english
Páginas:
417 / 432
ISBN 10:
0816062471
ISBN 13:
9780816062478
File:
PDF, 15.89 MB
Descarga (pdf, 15.89 MB)

Most frequently terms

 
 
You can write a book review and share your experiences. Other readers will always be interested in your opinion of the books you've read. Whether you've loved the book or not, if you give your honest and detailed thoughts then people will find new books that are right for them.
1

Developments in Hydraulic Engineering (Developments Series)

Año:
1990
Idioma:
english
File:
PDF, 4.41 MB
2

Transcaucasian Boundaries (SOAS GRC Geopolitics)

Año:
1995
Idioma:
english
File:
PDF, 2.10 MB
AMERICAN EXPERIENCE

Crime and
Punishment
in America
David B. Wolcott and Tom Head

Crime and Punishment in America
Copyright © 2010 by David B. Wolcott and Tom Head
Maps and graphs copyright © 2010 by Infobase Publishing, Inc.
All rights reserved. No part of this book may be reproduced or utilized in any form or by any
means, electronic or mechanical, including photocopying, recording, or by any information storage
or retrieval systems, without permission in writing from the publisher. For information contact:
Facts On File, Inc.
An imprint of Infobase Publishing
132 West 31st Street
New York NY 10001
Library of Congress Cataloging-in-Publication Data
Wolcott, David B.
Crime and punishment in America / David Wolcott and Tom Head.
   p. cm.
Includes bibliographical references and index.
ISBN 978-0-8160-6247-8 (alk. paper)
ISBN 978-1-4381-2689-0 (e-book)
1. Crime—United States—History. 2. Criminal justice, Administration of—United States—
History. 3. Punishment—United States—History. I. Head, Tom. II. Title.
HV6799.W65 2008
364.973—dc22
2008013372
Facts On File books are available at special discounts when purchased in bulk quantities
for businesses, associations, institutions, or sales promotions. Please call our Special Sales
Department in New York at (212) 967-8800 or (800) 322-8755.
You can find Facts On File on the World Wide Web at http://www.factsonfile.com
Text design by Joan M. McEvoy
Maps and graphs by Dale Williams
Composition by Mary Susan Ryan-Flynn
Cover printed by Art Print, Taylor, PA
Book printed and bound by Maple Press, York, PA
Date printed: February 2010
Printed in the United States of America
10 9 8 7 6 5 4 3 2 1
This book is printed on acid-free paper and contains 30 percent postconsumer recycled content.

Note on Photos
Many of the illustrations and photographs used in this book are old, historical images. The quality of the prints is not always up to modern standards, as in many
cases the originals are damaged. The content of the illustrations, however, made
their inclusion import; ant despite problems in reproduction.

To my wife, Elizabeth. Thanks for your loving support.
—D. W.
In loving memory of my nephew, James David Head (2003–2005).
—T. H.

Contents
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter

One
Two
Three
Four
Five
Six
Seven
Eight
Nine
Ten
Eleven
Twelve
Thirteen

Authors’ Preface

vi

Introduction

vii

Old Crimes in the New World: 1500–1699
A New System of Justice: 1700–1789
The American Experiment: 1790–1829
The American City: 1830–1854
A Nation Dissolved: 1855–1869
East and West: 1870–1889
The Gilded Age and Progressive Era: 1890–1913
Bootleggers and G-Men: 1914–1933
World War II and the Cold War: 1934–1957
Civil Disobedience and Civic Reform: 1958–1970
A Crisis of Confidence: 1971–1981
Responding to Urban Crime: 1982–1992
Crime and Justice as Public Issues: 1993 to Present

1
21
41
58
81
100
121
145
170
193
220
238
260

Appendix A: Documents

294

Appendix B: Biographies of Major Personalities

322

Appendix C: Maps

356

Appendix D: Graphs and Tables

361

Glossary

370

Notes

376

Bibliography

385

Index

405



Authors’ Preface
T

his book is intended to offer readers an introduction to the multiple and overlapping stories of crime and justice in American history. In particular, through
its structure it offers readers many different points of entry into the history of crime
and punishment. The chapters are organized chronologically, and each chapter
begins with a narrative introduction that discusses key themes, issues, people, and
events in that period. Chronologies follow, explaining major events factually and
precisely.
Most central to this volume, however, are the original primary sources. Each
chapter features an extensive selection of primary source materials from the period
under consideration. These sources articulate the visions of their time, how contemporaries understood issues surrounding crime and justice. They include newspaper accounts, eyewitness testimonies, laws, trial transcripts, and judicial decisions;
they include the perspectives of leaders, of ordinary people, of criminals, and of
practitioners of criminal justice. Some of these sources contain views that modern
readers might consider admirable and prescient, while others express ideas that
today would be regarded as reprehensible. All, however, express or imply a perspective, and understanding those perspectives is crucial to understanding the sources.
To begin this process it is necessary to try to understand the context in which each
document was created. When reading original sources, it is useful to consider how
the document connects to the larger story. Who expressed what ideas when? Under
what circumstances were these ideas expressed? For what purpose?
The appendices to the book also offer a number of useful tools. A biographical
encyclopedia highlights key individuals, explaining who they were and what they
contributed to the history of crime and punishment. Figures and maps represent
visually crucial trends and patterns in this history. And a detailed bibliography directs readers to the sources used for this book and to the most important scholarly
literature in the field.
An alert reading of the materials presented here—both the primary sources and
the information illuminating the larger context—can reveal how people throughout
American history have come to terms with issues of crime and punishment. These
materials demonstrate the ways in which the history of crime and punishment is
tied inextricably to the history of the United States.

vi

Introduction
I

n the years immediately following the American Revolution, the young United
States lacked most of the criminal justice institutions that are familiar to Americans today. In the 1780s, courts met only occasionally, jails held inmates only
temporarily, prisons for long-term incarceration had not yet been invented, and
full-time professional police did not exist.
Today, the United States maintains an array of institutions devoted to criminal justice at the local, county, state, and federal levels. In 2005, federal and state
prisons and local jails incarcerated more than 2.2 million people, roughly one out
of every 142 Americans. State governments alone spent almost $37 billion on corrections. Likewise, full-time policing and courts had become ubiquitous. Almost
18,000 state and local law enforcement agencies employed more than 1 million
people in 2004 and more than 30 federal agencies employed a total of roughly
90,000 officers. Prosecutors’ offices employed another 78,000.1
In less than two and a half centuries, the justice system in the United States
has experienced a massive expansion and transformation. Did these changes take
place because crime became more pervasive in modern America? Probably not,
although the limitations of long-term statistics on crime make it difficult to answer
this question with any certainty. Instead, the expansion and transformation of the
criminal justice system reflect the transformation of the United States itself during
this period. One premise of this book is that the history of crime and punishment
is the history of America. Concerns about crime and justice emerge from the
concerns of their day, and they change as the more general issues important to the
public change. Crime and justice also provide a window into historical divisions
between Americans; inequalities of class, of ethnicity and race, and of gender have
all shaped patterns of crime and the operations of justice. Finally, the expansion,
reform, and transformation of criminal justice exemplify changes in the American
state as a whole and reflect the debates and conflicts that surrounded changes in
American government. In short, criminal justice history is American history.

Crime and Punishment
in the Popular Imagination
Crime and justice have long fascinated Americans, a fascination reflected in popular entertainment. Films have shaped many Americans’ perceptions of crime. Movies have made icons of fictional criminals ranging from gangster Tom Powers in
The Public Enemy (1931) to drug lord Tony Montana in Scarface (1983) to serial killer
Hannibal Lector in The Silence of the Lambs (1991). Television has concentrated less
on criminals and more on police, but it too has informed popular perceptions of
law enforcement. Shows such as Dragnet (which aired between 1951 and 1959 and
was revived between 1967 and 1970), Hill Street Blues (broadcast between 1981 and
vii

viii

Crime and Punishment in America

1987), Law and Order (which debuted in 1990), and the long-running reality series
Cops (which debuted in 1989) help fashion ideas about crime fighting for multiple
generations of Americans.2 In a similar way, mystery fiction focusing on the work
of detectives has been a staple of popular literature at least since Sir Arthur Conan
Doyle published his stories about Sherlock Holmes in the 1890s. Likewise, much of
the gothic literature of the 19th century—such as the detective stories by Edgar Allan Poe published in the 1840s—focused on crime and justice. And finally, what are
Westerns if not stories of crime and justice transposed to the American frontier?
Widely publicized crimes and criminals have often become prominent because
they touched a nerve in some part of the American public mind, because they
resonated in the culture of the times. For example, the trial of former football star
O. J. Simpson, accused of killing his former wife, Nicole Brown Simpson, and her
male friend, Ronald Goldman, in 1993, initially came to prominence because it
overlapped with the late 20th-century news media’s increasing focus on celebrities.
By the time a jury acquitted Simpson—a black man—in 1995, the case had evolved
into a forum for considering American divisions over race. Likewise, the bootlegger
and organized crime figure Al Capone came to prominence in the 1920s because
he embodied, in an odd way, the American Dream. Capone had risen from obscurity to wealth, power, and fame through personal competitiveness and aggressive
business practices. Although a criminal, he embodied the masculine values most
highly celebrated in the 1920s. In a similar way, bandits such as Charles Arthur
“Pretty Boy” Floyd in the 1930s and Jesse James in the 1870s achieved prominence
because, in times of economic and social change, they presented themselves as
champions of the little people, robbing from the same interests that oppressed the
poor and disenfranchised.
Public understandings of crime and justice have also been linked inextricably
to the intellectual and cultural currents of their day. In fact, crime and punishment
can constitute a forum where these trends are most evident. To a large degree,
crimes become crimes because they violate the norms of a community. Thus, criminal law reflects community values by identifying what not to do, what actions lie
outside of the realm of acceptable behavior. This pattern is perhaps most evident
in 17th-century Massachusetts, when criminal law reflected the Puritan faith of that
colony. Congregational churches regulated individual comportment and behavior,
regarding violations of community norms as punishable crimes. Courts of law also
became forums for debates over how to apply the evidence of faith to temporal life.
The 1692 witch trials in Salem, Massachusetts, for example, turned on the question
of whether spectral evidence, visible only to those confronted by evil spirits, could
be admitted in court. By the late 19th century, few Americans connected crime
to sin, but many connected it to a different pseudoscientific obsession of that era,
heredity. Scholars such as the American investigator Richard Dugdale and the Italian criminologist Cesare Lombroso sought to demonstrate that criminal behavior
resulted from biological failings and could be transmitted to future generations. In
the public mind, purported criminal traits became the best example of the biological science of the time. Finally, in the late 20th century, criminal justice focused
heavily on fighting a war against illegal drugs. This focus perhaps reflects a public
concern with psychoactive substances and a loss of self-control more powerful than
at any previous time.
In short, for much of American history, crime and justice have provided a window through which many people have viewed their worlds. Narratives involving

Introduction

crime—both fictional and real—become focal points for understanding the issues
of the day. Stories of cops and robbers, cowboys and Indians, killers and detectives,
all help reveal what mattered to Americans at the time.

Routine Crime and Social History
The reality of crime in U.S. history is far less dramatic than movies, television, and
stories suggest. For that reason, ordinary crimes represent a useful window into the
ways in which people actually lived in the past, their social history.
Despite the attention that serial killers and celebrity defendants receive, spectacular crimes are quite rare. Most homicides are motivated by jealousy, alcohol,
or a momentary burst of anger. Furthermore, murder is far less common than
casual opportunistic theft, which is far less common than disorderly conduct. In
2003, homicide represented far less than 1 percent of the eight serious offenses that
constitute the Federal Bureau of Investigation’s key nationwide measure of “index
crimes.” By contrast, larceny and theft accounted for approximately 60 percent of
index crimes that year.3 This same pattern is even more striking in earlier periods.
For example, in Alameda County (includes Oakland and Berkeley), California,
between 1872 and 1910, only 6 percent of arrests involved felony offenses, and
only 27 percent involved any other sort of offense against persons or property. By
contrast, 64 percent of arrests resulted from efforts to maintain public order—apprehending the drunken and the disruptive, shooing vagrants off the streets.4 For
these very reasons, crime and justice become a good measure of what people really
did and how they really lived.
Much of ordinary crime and justice has been driven by inequalities of race
and class, power and wealth. American history virtually begins with the inequitable treatment of Native Americans in criminal justice systems established by
European colonists in the 17th and 18th centuries. When colonists and American
Indians disagreed over whether accused offenders should be tried under Native
or European systems of justice, American Indians almost invariably found themselves at a disadvantage. In addition, the poor, the powerless, and the economically
marginal have always represented the majority of people accused of crimes and
brought before the courts. This pattern has persisted even as the particular ethnic
groups that tended to be poor and disadvantaged changed. As a result, immigrants
and their children—particularly the new immigrants from eastern and southern
Europe—constituted the vast majority of people in trouble with the law during the
19th and early 20th centuries. In modern times, this pattern has meant that African
Americans have been overrepresented in the criminal justice system.
This concentration of blacks involved in both crime and justice builds on
the long-term connections between race and power in the United States. Slavery—which persisted in North America for more than two and a half centuries
until finally abolished in 1865—was built on the subjugation of African Americans.
Masters used both violence and the threat of violence to exercise authority over
their unwilling workers. For slaves themselves, crime and insurrection represented
avenues of resistance. Their actions could range from simple and subtle, such as
appropriating food from a master’s garden, to spectacular, such as an 1831 insurrection in Southampton County, Virginia, led by Nat Turner that resulted in the
deaths of 57 whites. Maintaining slavery required an elaborate system of informal
controls and formal mechanisms, such as slave patrols. In the 19th-century South,

ix

  Crime and Punishment in America

these patrols evolved into the earliest systems of policing. Following the end of slavery, vigilante actions such as lynching continued to maintain a degree of control
over the black population.
A similar pattern of efforts to reassert control over African Americans in the
1950s and 1960s helps explain violent resistance to the Civil Rights movement.
At the same time, exclusion from equal opportunities in life and from equitable
treatment before the law has led many African Americans to embrace crime and
violence. The legacy of racial subjugation has been the disproportionate representation of African Americans as both the victims and the perpetrators of crime
throughout the 20th century.
The gender dimensions of the history of crime are less often noted, not because
they do not exist, but because they are so enormous that they seem natural. Men constitute the overwhelming majority of people accused of crimes (and the more serious
a crime is, the more often the perpetrator is male). Until the late 20th century, men
also constituted the overwhelming percentage of people working in all aspects of the
criminal justice system, from policing to courts to corrections. As a result, the nature
of crime and justice have been shaped by masculine notions of honor, whether it be
in disputes such as the 1804 duel in which Vice President Aaron Burr killed former
Treasury secretary Alexander Hamilton or in rumbles between street gangs in New
York City in the 1950s. That said, women have also played substantial roles in the
history of crime and justice. Like men, women have also been subject to criminal laws
and also engaged in criminal enterprises. As women’s roles in society developed in the
20th century, they too became increasingly likely to commit crimes against persons
and property. In addition, women such as Dorothea Dix and Alice Stebbins Wells
stand out for exercising disproportionate influence in the reform of criminal justice.
By the late 20th century, women increasingly assumed professional roles in the justice
system alongside men as police officers, attorneys, and corrections officers.
In short, the story of race and gender in the history of crime and justice reflects
and parallels the story of race and gender in American society. Thus, the routine
crimes that constitute the vast bulk of the justice system’s work are just as significant
as the spectacular crimes that earn most of the attention. These ordinary offenses
help illuminate the contours of life for ordinary Americans.

Law and Order and the American State
In a comparable fashion, the growth of the apparatus of justice parallels the transformation of government. For much of U.S. history, criminal justice has been overwhelmingly local. States have largely determined which behaviors are to be treated
as crimes, local officials have been in charge of enforcement, and county courts
have decided most criminal cases. Prior to the 20th century, the federal government
played almost no part in the criminal justice system. As a result of this very loose
federal system, the United States maintains an incredibly diverse array of policies
and institutions. Rather than discussing a single criminal justice system, it is more
accurate to think about hundreds, if not thousands, of frequently overlapping
criminal justice systems.
This pattern of dividing power between local, state, and national governments
reflects general trends in American history more closely than early 21st-century
observers can easily appreciate. Today, the federal government has assumed the
paramount role in U.S. governance, but that development is fairly recent in his-

Introduction

torical terms and still does not fully characterize criminal justice. For most of the
history of the United States, the federal government has played an extraordinarily
limited role in people’s day-to-day lives. In criminal justice in particular, the federal
government has traditionally had no jurisdiction unless offenses crossed state lines,
and it counted few agencies to take action. The U.S. Marshals Service was the first
federal law enforcement agency, proudly dating its origins to 1789, but for most
of its history it existed mainly to transport prisoners. The Treasury Department
established the Secret Service in 1865 to protect the new national currency against
counterfeiting and other threats; the Secret Service only assumed its more famous
modern function of protecting political leaders following the 1901 assassination
of President William McKinley. President Theodore Roosevelt established a Bureau of Investigation—the predecessor of today’s Federal Bureau of Investigation
(FBI)—in 1908 as a sort of national police force, but, like its sister agencies, it had
very little to do. Only with the passage of federal laws against offenses involving
interstate transport did the Bureau of Investigation assume clear (albeit limited)
functions.
The expansion of federal law enforcement capabilities in the 20th century
paralleled American political development. Under the New Deal of the 1930s,
the FBI assumed a much larger role, leading a “war on crime” directed against
depression-era bandits, bank robbers, and kidnappers. The FBI also positioned
itself at the apex of a nationwide pyramid of law-enforcement agencies, becoming
a national clearinghouse for information and expertise. The federal government
expanded this clearinghouse role in the 1960s in the context of Lyndon Johnson’s
Great Society programs with the creation of the Law Enforcement Assistance
Administration in 1968 to funnel federal money to local police. A growing “war
on drugs” in the 1980s and 1990s and a new “war on terror” in the 2000s led to
legislation extending federal jurisdiction over crime, a sharp expansion of federal
criminal justice administrative capacity and a dramatic increase in the number of
inmates housed in federal, rather than state, prisons. The extension of federal authority in criminal justice matters was really a phenomenon of the latter two-thirds
of the 20th century, and even then it did not supersede the on-the-ground work of
state and local agencies.
Police also represent a comparatively new innovation in American history.
Boston established what is generally accepted as the first full-time professional
police force in the United States in 1838; New York City followed suit in 1845.
Prior to this, American cities had been guarded by casual, part-time, ill-organized
“watches” (often composed of men moonlighting from their day jobs) or constables
who served court orders in exchange for payment. Even with the creation of police
forces, police functioned mainly as all-purpose guardians of public order rather
than law enforcers. As they walked their beats, 19th-century police officers might
be seen checking locks or street lamps, arresting drunks, herding stray cows off the
street, forcefully reprimanding suspected offenders, or slipping into a saloon for a
drink. Only in the late 19th century did police administrators even begin to consider law enforcement their primary function, and police reform became a project
that dominated the 20th century.
For the most part, courts represent the primary components of the local justice systems. In the 19th century, they served as neutral arbiters when citizens filed
complaints against one another. With the arrival of police, courts supported their
work of maintaining order, issuing quick and summary judgments of the many

xi

xii

Crime and Punishment in America

minor offenses that came before them. But like the police, courts changed gradually in the late 19th and 20th centuries. Public prosecutors and trained defense
attorneys increasingly used courts as forums to make cases against and for alleged
offenders. These more professional court officials and lawyers helped make court
operations more routine by encouraging plea bargaining—trading admissions of
guilt for reduced sentences. On the one hand, courts represented the entry point
for most offenders to penalties and incarceration. On the other hand, courts also
represented the best protectors of the rights of the accused, a function increasingly
apparent in the 20th century.
Prisons and jails also exemplify the expansion of criminal justice in American
history. In the 17th and 18th centuries, jails were small and little used. Offenders might be held there while they awaited trial or until they paid debts, but they
would not be sentenced to a term in jail as their primary punishment. This pattern
changed, however, when 18th-century Enlightenment ideas that punishment should
be proportionate to crimes swept the United States; the length of a sentence could
be fixed to the perceived severity of an offense. Larger prisons became America’s
primary mode of punishing criminals in the early 19th century; not only did prisons offer a mechanism for proportionate punishment, they also offered a means of
removing offenders from society and potentially rehabilitating them. Despite their
high ideals and lofty rhetoric, prison administrators more often reverted to using
various forms of brutality to control inmates than working to achieve the goal of
reforming inmates. Nonetheless, the ongoing tension between the opposite goals
of punishment and rehabilitation has become the driving force in the history of
prisons even as prisons themselves have become the most visible emblems of the
criminal justice system.
The history of the death penalty reflects even more sharply ongoing questions
about the purposes of punishment. Should punishment incapacitate offenders, preventing them from committing future crimes by locking them away (or doing away
with them)? Or should punishment rehabilitate them, teach them the error of their
ways, and make them into better people? Should punishment act as a deterrent
to others? Or is punishment’s purpose to enact society’s retribution, taking an eye
for an eye or a life for a life? Controversies over the death penalty have helped to
crystallize these debates and forced advocates on all sides to make their assumptions
explicit. Executions for crimes have been fairly common in American history. That
said, the 19th-century emergence of the prison as a viable alternative to execution
was accompanied by a more general humanitarian criticism of the death penalty.
Over the course of the 19th century, most jurisdictions gradually replaced public,
“outdoor” executions in town squares with private, “indoor” executions behind
prison walls so as not to offend popular sensibilities. By the middle of the 20th
century, the death penalty fell into disrepute due to obvious inequities of race and
class, and in 1972 the U.S. Supreme Court found it unconstitutional in the form in
which it then existed. The Supreme Court reversed this decision when confronted
with new, less arbitrary death penalty laws in 1976, and executions have increased
sharply but not nearly so sharply as sentences of death; in California, for instance,
only 13 prisoners have been executed since 1976 despite the 669 prisoners under
sentence of death in 2008.5 In this modern climate, proper respect for due process
and civil rights demands that cases be examined closely and at length before the
ultimate penalty can be applied.

Introduction

All of these transformations—in police, in courts, in prisons, and in the death
penalty—have been shaped by reform movements, efforts to foster a more orderly
society while improving the effectiveness of justice. In many cases, these reform
movements have reflected the noblest aspirations of Americans. Juvenile courts, for
example, were first established in Chicago in 1899 in order to separate young offenders from criminal courts and jails, to protect them from the harsh consequences
of incarceration, and to offer rehabilitation to the most malleable of offenders.
Juvenile courts also reflect the ways in which the perceptions and aspirations of
reformers were shaped by and confined to their times. These institutions, which
in the 1900s understood informal procedure and judicial discretion to be the keys
to saving young offenders, were widely criticized in the 1960s for this same inattention to due process. The protective juvenile court had itself become a massive
correctional bureaucracy, capable of incarcerating juveniles for years without the
protections that would be afforded to adults. And in the 1990s, juvenile courts faced
a new wave of criticism for their purported ineffectiveness as a bulwark against
youthful crime. As in the case of juvenile courts, reform movements and an ongoing quest to improve society have been key dynamics in American history. Yet as
was also the case with the juvenile court, the outcome has often been an expansion
of the power of the state, the growth of bureaucracy, and criticism on all sides by
subsequent generations.

xiii

CH A P TER ON E

Old Crimes in the New World
1500–1699
During the 16th and 17th centuries, there was no United States and no U.S. system
of crime and punishment. American Indian peoples, who had inhabited the North
American continent for at least 25,000 years, were confronted by colonists from
Spain, France, Great Britain, and the Netherlands, each with its own distinct legal
systems. In the colonies, the crime rate—like the population—was fairly low. Laws
generally focused on establishing colonial power, maintaining social order, and preventing smuggling. Imprisonment was not a viable option in a frontier setting, so
punishment at the hands of the state consisted of fines, humiliation, physical torment,
banishment, or (for some offenses) death.

Crime and Punishment in Native America
In a 1787 letter to James Madison, Thomas Jefferson described the most free
society as being “[w]ithout government, as among our Indians.”1 The belief that
American Indian societies had no government at all was popular among framers
of the American democracy, who found the example inspiring and cited it as evidence that strong governmental control is not necessary and should be abolished.
This dovetailed with the concept of the Noble Savage popularized by French
philosopher Jean-Jacques Rousseau, who held that human beings are inherently
good when living in a natural state but become evil through excessive civilization,
particularly through its political and economic trappings. The conventional view
that precolonial American Indian societies had no form of government is partly
true, relative to European governments of the time (as American Indian societies
were not governed by complex written legal codes), but it does not accurately reflect
the breadth of precolonial American Indian government.
This is particularly evident in the case of the Aztec. The Aztec kingdom, in
what is now Mexico and Central America, was ruled by 20 clans of nobles (pipiltin),
each of which elected a representative to serve as part of the kingdom’s legislature.
Of these 20, one was selected to serve as king for life and three others were appointed to a special executive committee answerable only to the king. Those who
had not been born into the noble caste were classified either as commoners (macehualtin) or as serfs (mayeques) living under the jurisdiction of a clan; they could not


  Crime and Punishment in America

The Aztec, pictured here in 1910, arguably the most powerful American nation at the time of
European contact, had an intricate judicial system enforcing an informal code of law. (Library
of Congress, Prints and Photographs Division [LC-USZ62-99677])

fully participate in the political system and were usually prohibited from owning
land (though exceptions were made for war heroes). Many members of the noble
caste also functioned as judges and were expected to enforce the judgment of the
kingdom and to resolve disputes.
At the opposite end of the spectrum were the Comanche, who lived in what
is now the American Great Plains and in Texas and Mexico. Their leadership was
based on informal democracy. Individual bands of hunters simply elected their
leaders and, for the most part, let it go at that. Comanche leaders were always male;
women had an important role in Comanche society but were excluded from the
political process. At times different groups of Comanche met in common councils,
but they did not follow a common hierarchy. Each leader was responsible for judging disputes that arose within his band, and he frequently relied on trusted advisers
to help render fair verdicts and on swift hunters to help capture fugitives, but there
is no evidence of a formal legal code.
American Indian nations were most often made up of small, semiautonomous
governments held together by a common leader or group of leaders. Most systems
were neither as complex and entrenched as that of the Aztec nor as simple and
informal as that of the Comanche. Nations that relied most heavily on agriculture
were more likely to settle into cities and establish complex systems of government,
while nations that relied on hunting were more likely to be seminomadic and use a
simpler, less formal approach to governance. There is no evidence whatsoever that
any American Indian tribe operated without relying on some form of governance,
but the formality of Native governments varied considerably.
The nations’ specific approaches to crime and punishment also varied considerably. For the Cherokee nation, in what is now the southeastern United States, the
operative value was harmony. The Cherokee harmony ethic called on all members
of the tribe to deal with conflicts indirectly, using mediators, and never express an-

Old Crimes in the New World

This photograph is a portrait of Chief Quanah Parker (1845–1911), last chief of the Kwahadie
(Quahadi) Comanche. Comanche Indian chiefs, who were most often democratically elected,
served both executive and judicial functions. (National Archives and Records Administration
[ARC 530911])





Crime and Punishment in America

This late 19th-century American Indian police unit included both American Indian and non-Indian members. This reflects a degree of
cooperation that is not often found in policing. Jurisdictional conflicts between European-American and American Indian governments,
common in the colonial era, continue to this day. (National Archives and Records Administration [523707])

ger directly at another person. In situations involving personal conflict, the better
Cherokee was expected to perform an act of generosity—regardless of who was
to blame. Those who consistently violated the harmony ethic were shunned or
subject to dark magic. The emphasis in Cherokee culture was on the preservation
of the tribe as a loving, familial unit; in all but the most severe cases, it was not as
important to provide retribution as it was to preserve a safe environment. Direct
retribution, even in cases of murder, was frowned upon. Retribution was to occur,
as quietly as possible, at the hands of objective third parties.
In other cultures, such as the Choctaw nation in what is now the southern
United States, justice and retribution went hand in hand. If one Choctaw murdered another, the offender was expected to surrender immediately to the victim’s
family and face direct retribution. If the murderer refused to surrender, a member
of his or her family was offered up instead. The most important consideration was
that the victim’s family be allowed to seek justice.

Old Crimes in the New World 

One common theme among American Indian systems of crime and punishment is that in disputed cases, tribal elders were expected to render a verdict.
This is why the trait of wisdom was so highly valued among tribal leaders. An
ideal judge would be prepared to place the needs of the tribe above his or her
own prejudices and deliver a verdict that affirmed the tribe’s values as effectively
as possible.
As European empires established colonies in the Americas, these colonies interacted with American Indian governments on issues of criminal justice. Initially,
crime between American Indians and colonists was sometimes regarded as an
act of war committed by one culture against another rather than the actions of
specific individuals. In other instances, crime and punishment were addressed in a
particularly commonsense way: The offenders were punished by whichever nation
or tribe happened to capture them, without extradition. Over time, due in part to
a series of treaties between British colonists and American Indians in the late 18th
century, extradition to the colonies or states became an almost universal practice,
while extradition to tribal authorities became increasingly rare.

Spanish Conquest and the French Trade
On October 19, 1469, a wedding decided the future of Spain. Crown Prince Ferdinand II, heir to the Aragon kingdom in northeastern Spain, married Princess
Isabella I, heir to the Castile kingdom of northwest and central Spain. The two
regions were united after Ferdinand inherited the throne of Aragón in 1479 (Isabella had already become queen in 1474), placing them in control of the bulk of
Spain—and they wanted the rest. Devout Roman Catholics, Ferdinand and Isabella
soon turned their attention to conquest of the Islamic kingdom of Granada in
southern Spain, which fell to their soldiers in 1492. They had successfully made a
single nation of most of the Iberian Peninsula, and it was one of the most powerful
nations on Earth.
Seeking additional trade revenue to fund their military conquests, the Spanish
monarchy sent Italian explorer Christopher Columbus to find a faster trade route
to India. He landed on the island of San Salvador (today called Watling Island) on
October 12, 1492, and discovered the Americas without initially realizing it. By
December 6, however, he became aware that he had discovered a new world—and
he established a base on the island of Quisqueya, which he renamed Hispaniola.
Hispaniola would serve as the de facto capital of the Spanish conquistadores until
their conquest of Mexico City in 1521. Initially, there was some disagreement over
which nations would be allowed to settle the Americas. These concerns were addressed by Pope Alexander VI in 1493, when he declared in his papal bull titled
Inter Caetera that Spain owned the bulk of the Americas and was responsible for
converting its inhabitants to Christianity.
Spain did this by conquering land by force and making American Indians into
serfs under the encomienda system, whereby a group of American Indians would
be assigned to a Spanish administrator and forced to labor on the administrator’s
behalf—sometimes as farmers, sometimes to mine silver and gold. Many encomiendas—or groups of serfs under the control of an administrator—lived under very
harsh conditions in a sort of walking prison. More than 90 percent of American
Indians living in Mexico, South and Central America, and the Caribbean died
during the Spanish occupation, due primarily to the introduction of European
diseases for which they had no natural immunity. The death toll was exacerbated

  Crime and Punishment in America

by casualties from combat, executions, starvation, and overwork. Reformers—such
as the outspoken priest and human rights activist Bartolomé de Las Casas, who
condemned Spanish abuses of American Indians in his Short Account of the Destruction
of the West Indies (1552)—attempted to improve the living conditions of American
Indians laboring under the encomienda system. These attempts went largely ignored,
however. The Spanish government’s gradual and halfhearted attempts at regulation, along with the introduction of African slaves (which began in 1538 in Brazil),
rendered the encomienda system unprofitable and relatively uncommon by the end
of the 16th century—but the damage had already been done.
During its peak in the mid-16th century, New Spain was made up of the southwestern United States, Florida, Mexico, Central America, most of the Caribbean,
and the Philippines and included the modern cities of Santa Fe, New Mexico,
and St. Augustine, Florida. For the first few decades of its existence, New Spain
was essentially a military dictatorship overseen by conquistadores who ruled their
encomiendas with little or no oversight. This changed in 1524, when the Spanish
government established the Consejo de Indias (Council of the Indies) to oversee
New Spain, and even more so in 1527, when the audiencia (court) system came into
effect.
Each audiencia was made up of local oidores (justices), who ruled on a wide range
of criminal, civil, and legislative matters. Unlike in Spain, where the audiencias were
responsible only for interpreting and enforcing the law, audiencias in New Spain
had almost unlimited power to create new laws, strike down old laws, and enforce
existing laws. New Spain’s status as a frontier colony gave immense power to those
charged with ruling over it.
For New Spain, crime was less of an issue than war and treason. When Mexico
City fell in 1521, Cuauhtémoc—king of the Aztec—was captured by the conquistadores, held as a prisoner for some time, and then abruptly executed for “treason”
based on the whims of the military commander who had captured him. Frequently,
other American Indians were imprisoned or executed by the Spanish military. The
audiencia provided some oversight to this process, but only to a point; until the mid16th century, Spain’s conquistadores held almost unlimited power over their subjects.
The power of New Spain in North America faded with time, and the Viceroyalty of
New Spain was finally dissolved after the Mexican revolution of 1821.
The French attempt at colonizing the Americas was far less violent but also far less
successful. In part, this was due to a series of wars with the Spanish; the first French
colony, Fort Caroline in Florida, was destroyed by Spanish conquistadores. France’s
empire was also limited by its approach to colonization. Rather than establish military
control as Spain had done, France sought to establish viable ports for international
trade. At its peak, French territory extended throughout Canada, the Mississippi Valley, and the Gulf Coast and included what would later become the cities of Montreal,
Quebec; New Orleans, Louisiana; and Detroit, Michigan, but it included few French
people other than fur traders and colonial administrators. As a result, the French colonies remained geographically large but sparsely settled and vulnerable.
Rather than enslaving American Indians, the French focused on trading with
them and, in some cases, forming strategic alliances and playing a role in intertribal
war. French colonies in North America simply applied French law when possible,
but the small number of colonists coupled with the remote, frontier society resulted
in few reported crimes. New France officially ceased to be when Canada was ceded
to Great Britain in 1763, and Spain and Britain divided up that portion of French
territory that would later make up part of the United States.

Old Crimes in the New World 

English Law in the New World
Although England was the nation whose colonies later became the United States,
Spain had a head start of more than a century. Pope Alexander VI declared in
1493 that Spain would be given the bulk of the Americas. England, which was at
the time a militarily weak nation, did nothing to colonize the New World. Even
after the Church of England broke with Roman Catholicism in 1534, England

Canadian and Inuit traders barter over white fox furs in this photograph from early 20th-century
Montreal. The French colonies in North America, unlike the British and Spanish colonies,
functioned primarily as trading posts and were generally grounded in mutually beneficial
relationships with Native peoples. (Library of Congress, Prints and Photographs Division
[LC-USZ62-112764])

  Crime and Punishment in America

did not colonize the Americas; this was due in part to ongoing conflicts with the
Spanish and the power of their naval forces. The first attempt at a colony, in 1585,
failed largely because transport between England and North America had been
interrupted by the Spanish. It was not until 1588, when England secured a major
naval victory over the Spanish Armada, that English colonization of the Americas
became a realistic possibility.
The first viable English colony in North America at Jamestown, Virginia, was
founded in 1607. For the rest of the 17th century, the English colonies expanded at
a rapid pace—due in part to overpopulation in England—and, within a matter of
decades, England became the dominant colonial empire in North America.
If harsh by contemporary standards, particularly with regard to their restrictions on religious expression, the laws of the English colonies were for the most part
more lenient than the laws of England. In England, overpopulation had created
an impoverished class of “masterless men”2 who roamed the countryside sustaining themselves on lives of crime. In an effort to combat this, English law allowed
the death penalty for such offenses as theft and robbery and expanded the number
of capital crimes so that by the 18th century, nearly 300 offenses could potentially

In 17th-century England, robbery and other property crimes potentially carried the death penalty—an aggressive measure taken to
combat poverty-related crime. In the British colonies, the death penalty was used far less frequently. (Library of Congress, Prints and
Photographs Division [LC-USZ62-2848])

Old Crimes in the New World 

lead to execution.3 In contrast, most English colonies allowed the death penalty for
only about a dozen offenses. Imprisonment was also fairly rare in the colonies, as it
was in England; the concept of penitentiaries would not emerge on a widespread
basis until the 18th century. Other punishments, such as whipping, humiliation
in the stocks, and banishment were generally used, though serious offenders were
jailed pending trial.
English colonies essentially fell into three categories: the southern colonies (such
as Virginia), which were patterned after English law; the New England colonies
(such as Massachusetts), which displayed more of a Puritan colonial influence; and
the middle colonies (such as Pennsylvania), which generally offered their own variations on English law. It is impossible to definitively assess the crime rate during the
colonial era, because records—even of serious crimes—were not comprehensive.
Nevertheless, existing records suggest an exceptionally low crime rate. In his book
Popular Justice, historian Samuel Walker points out that during the 13-year period
between 1632 and 1645, the county courts of Accomack-Northampton in Virginia
recorded only 60 criminal cases, most consisting of nonpredatory crimes (such as
drunkenness, cursing, and fornication).4
Although English colonial law was sometimes more egalitarian than the law
of the empire it represented, oppressed classes certainly existed in the New World.
Generally speaking, only free white heterosexual Christian males of certain social
status were allowed to participate in the most important aspects of colonial life.
Under colonial law, women were excluded from participation in most government
functions and subject to their husbands in most legal matters. Although there were
laws prohibiting spousal abuse, there was little support or protection available to
women who sought to file charges against their husbands.
In most states, members of non-Christian faiths could be subject to penalties
ranging from banishment to death. Gay men and lesbians were subject to prosecution and possible execution under the capital crime of sodomy. American Indians
who committed crimes against English colonists were treated far more harshly than
their white counterparts.
Indentured servants, England’s masterless men, often traded poverty and the
prospect of debtors’ prison for transit overseas to the new colonies, where they could
live as virtual slaves for a limited period of time—usually two to seven years—and
buy their freedom through labor. Many did not survive their tenure or were forced
to serve for the remainder of their lives through fraud or manipulation. As would
later be the case with African-American slaves, indentured servants played a central
and unrewarded role in maintaining the agricultural economy of the American
colonies, particularly in the South.
The institution of slavery slowly superseded the institution of indentured
servitude. Slavery dates from the earliest years of English settlement in North
America, when four African-American slaves were brought to Virginia in 1619,
but it remained comparatively rare for the better part of the 17th century. The
final decades of the 1600s, however, saw both a codification in colonial law of
what it meant to be a slave and a dramatic increase in the number of slaves in the
American colonies. By the end of the 17th century, approximately 40 percent of
Virginia’s population was made up of slaves. Some colonies had laws against the
abuse of slaves, but they were not widely enforced. Physical punishment of slaves
was regarded as part of normal life, and a 1669 law in the colony of Virginia
actually legalized the killing of slaves, provided that any such killing occurred
during the process of punishment.5

10

Crime and Punishment in America

The colonies most clearly patterned after the English system of crime and punishment, the middle and southern colonies, generally relied on a county system. As
part of his job, the sheriff oversaw law enforcement for his county—but he was also
responsible for other county issues. In some cases, he was assisted in his law enforcement responsibilities by constables, who essentially functioned as police officers but
were most likely part-time employees of the county. These officials conducted little
or no criminal investigation. Cases of homicide came to public attention only when
someone reported a suspicious death to a sheriff or magistrate, who then called
a coroner to conduct a hearing to determine the likely cause of death and the
persons responsible. Under this arrangement, accused killers could rarely be tried
unless they were caught at the scene of the crime or witnessed doing the deed.
The New England colonies largely abandoned the county model in favor of a
town meeting system. New England towns were regarded as voluntary communities, heavily influenced by the theology of Puritanism, a movement that rejected the
Anglican tradition in favor of abolishing Roman Catholic influences and establishing a stricter code of social conduct. The early New England colonies were in most
respects religious communities, dominated as much by church and gossip as by
law. Citizens were expected to monitor the behavior of their neighbors and report
suspicious activities to the local church or, in particularly severe cases, to public
officials. More often than not, however, crimes were dealt with by churches and
resolved by way of public penance or other forms of retribution. Church membership was considered even more important than citizenship, and the churches of
New England had immense power. They were also supported by the courts, which
often banished or hanged religious dissidents, enforced laws prohibiting blasphemy
and witchcraft, and took other measures to support the religious establishment.
The collusion between religious and legal interests was demonstrated clearly in
the Antinomian Controversy, in which Boston’s perceived social harmony—based
on religious and cultural orthodoxy—was challenged by one woman. In 1636,
housewife and herbalist Anne Hutchinson began holding meetings at her home to
discuss the sermons of local minister John Cotton. Cotton preached that the strict
moral code of the Puritans was not necessary for salvation—that salvation is determined by God alone and cannot be influenced by human behavior. This belief,
sometimes referred to as antinomianism (“against law”), ran counter to Puritanism’s
emphasis on strict moral behavior. When Hutchinson’s sermons began to rival
Cotton’s in influence, Massachusetts governor John Winthrop grew concerned that
a woman preacher who railed against the religious foundations of what he called
his “city upon a hill”6 could do immense damage. He had her arrested, brought to
trial, and expelled from the colony. Although he never clarified what the grounds
for expulsion were, they seemed to be based on a mix of two factors: her refusal
to submit to established Puritan gender roles (which called on women to minister
only to other women, if at all) and her success at promoting the antinomian belief
system. John Cotton, who was perceived as less dangerous (in part because of his
gender), was acquitted and allowed to remain in Massachusetts.
This theocratic system was challenged and permanently transformed by the
Salem witch trials of 1692, in which 19 women and one man were killed after being
accused of witchcraft by witnesses who had been assembled by local minister Samuel
Parris. The trials relied heavily on spectral evidence, eyewitness testimony that was
accepted regardless of alibis on the basis that a witch could send her specter to appear
and physically commit any act of which she had been accused. As was the case in the

Old Crimes in the New World 11

This 1892 drawing of “witches” being imprisoned in the stocks evokes the 1692 Salem witch trials. (Library of Congress, Prints and
Photographs Division [LC-USZ62-476])

Antinomian Controversy, the overall effect of the trials was to target women who did
not conform to Puritan societal norms. Outraged officials soon ended the witch trials
and banned the use of spectral evidence, and the backlash from the event left New
Englanders suspicious of prosecutions based on religious zeal.
By the end of the 17th century, the English colonies had significantly changed
their approaches toward crime and punishment. This was due partly to societal
change in North America and partly to changes in domestic English law. Two
pieces of English legislation enacted in 1689, the Religious Toleration Act and the
Bill of Rights, significantly reduced oppression of religious minorities and protected
defendants from unfair trials and cruel and unusual punishment.

New Netherland and the
Problem of Smuggling
When colonists from the Netherlands settled in Manhattan in 1626, they were
in most respects acting on behalf of the Dutch West India Company. The early
criminal justice history of the colony was not promising. Prosecutors were paid
on a commission basis, drawn from fines they were able to win on behalf of the
colony. Defendants were expected to incriminate themselves, and those who were
not willing to oblige were sometimes subject to torture. The situation quickly grew
worse: Governor Willem Kieft, who served from 1638 to 1646, began his tenure
by placing himself in complete control of New Netherland’s highest judicial court.

12

Crime and Punishment in America

Settlers who had grown accustomed to the Dutch tradition of a judicial council
made up of nine independent justices, each with an equal vote, were horrified to
confront a council comprised of two members: Kieft, who had two votes, and a
token second justice, who had one.
Kieft’s greatest blunder, however, was his treatment of local American Indians. In 1639, he began demanding tribute from American Indian tribes residing near the Hudson River. A year later, rumor circulated that a small group of
Raritans—an American Indian tribe living near the Hudson River—had stolen
hogs from colonists. Without investigating the rumor (the culprits later turned
out to be Dutch traders), Kieft responded to the accusation by sending Dutch
militia to a nearby Raritan village, where they destroyed property and killed four
men. Seeking retribution, a group of Raritan warriors killed four Dutchmen in
response. Local tribes refused to pay tribute to New Netherland and frequently
came into violent conflict with Dutch settlers, but a 1642 treaty eased tensions
considerably.
The situation grew far worse in February 1643, when hundreds of men, women, and children belonging to Hudson River tribes, fleeing from combat with the
Mohawk, asked for the protection of the Dutch. Despite the treaty, Kieft was unwilling to give up the opportunity to decimate the river tribes; in the middle of the
night, Kieft sent 120 soldiers to ambush and slaughter them, leaving the impression
that the Mohawk had committed the atrocity. When it became clear that the Dutch
were to blame, all 11 Hudson River tribes converged on New Netherland, burning
settlements and driving the Dutch colonists into New Amsterdam for protection.
When colonists learned of the massacre that provoked the conflict, they appointed
eight counselors to serve in Kieft’s stead and wrote a letter to Holland demanding
that he be recalled. In 1647, he was sent back to the Netherlands, dying when his
boat sank en route. He was replaced by Peter Stuyvesant, who reformed the colony
but was largely unable to undo the damage Kieft’s massacre had inflicted on the
Indian-Dutch relationship. The height of the conflict, making up the years between
1641 and 1645, is remembered as Kieft’s War.
The Dutch colony under Stuyvesant was much smaller than the English, French,
and Spanish colonies, comprising parts of what are today the states of New York, New
Jersey, and Delaware, but it foreshadowed the future United States in several important
respects. The first was its diversity. In 1646 French missionary Isaac Jogues marveled
at the diversity of New Netherland’s most successful colony, New Amsterdam, writing
that “there may well be four or five hundred men of different sects and nations: the
Director General told me that there were men of eighteen different languages . . .
[and] there are . . . Catholics, English Puritans, Lutherans, [and] Anabaptists, here
called [Mennonites].”7 Today, three and a half centuries later, New Amsterdam—now
called New York City—is still regarded as the most diverse city in the United States.
The second was trade-related crime. Smuggling was one of the primary concerns of New Netherland, and many traders were frustrated by the invasive searches and tedious security protocols that the New Netherland government observed.
When the English conquered New Amsterdam in 1664 and inherited its fur trade,
they also inherited its smuggling problem. A century later, transcontinental trade
would force the British to search and seize merchandise in the North American
colonies with very little oversight, and tax revenue lost to smuggling would be
compensated for by new taxes on luxury trade goods. These two factors would
dramatically contribute to the frustration of British colonists in North America, a
frustration that would culminate in the American Revolution.

Old Crimes in the New World 13

Chronicle of Events

1562
• October: The British slave trade begins.

1499
• Christopher Columbus establishes New Spain’s encomienda system when he assigns 300 American Indians to
some of his companions as serfs.

1588
• The English fleet defeats the Spanish Armada, allowing
England to establish colonies in the Americas.

1512
• December 27: The Spanish government implements the
Laws of Burgos, placing American Indians under the
jurisdiction of Spanish law.
1514
• Spain’s King Charles I declares the Requerimiento
(“requirement”), stating that all American Indians must
submit to the authority of Spain and convert to Roman
Catholicism. Those who refuse are subject to deadly
force.
1521
• August 13: The Aztec government of Mexico City surrenders to Spanish conquistadores.
1524
• The Consejo de Indias (Council of the Indies) is created
by the Spanish government to administer criminal and
civil justice in New Spain.
1525
• February 28: The captured Aztec emperor Cuauhtemoc
is tortured and executed by conquistadores.
1527
• The first audiencia (judicial court) in New Spain is established in Mexico City.
1534
• French explorer Jacques Cartier claims parts of Quebec
and Newfoundland for France.
1538
• The Spanish government imports enslaved Africans into
Brazil to replace American Indian workers, essentially
beginning the African-American slave trade.
1552
• Bartolomé de Las Casas publishes his Brevísima relación
de la destrucción de las Indias (Short Account of the Destruction
of the West Indies), which chronicles Spanish abuse of
American Indians.

1607
• May 14: Jamestown, Virginia, the first successful English
settlement in the Americas, is founded.
1608
• July 3: The first permanent French settlement in North
America is established.
1614
• The first permanent Dutch settlement in North America is established.
1619
• August 20: A trading ship docking in Jamestown, Virginia, sells four African-American passengers into indentured servitude in exchange for supplies.
1620
• November 11: The Plymouth Colony of Massachusetts is
founded.
1626
• The Netherlands establishes a colony on Manhattan
island.
1634
• March 25: The colony of Maryland is founded.
1637
• November 12: Religious leader Anne Hutchinson is banished from Massachusetts for stating the belief that salvation occurs by grace and that obeying religious laws
is not necessary in order to achieve salvation.
1638
• Four indentured servants escape from their master in
Massachusetts and encounter and murder a member
of the Narragansett tribe. One of the four dies at the
hands of Narragansett law enforcement representatives,
one escapes, and the other two are tried and executed
by the English government.
1639
• Nepaupuck, a member of the Quillipieck tribe, is
captured by his leader and accused of murdering an

14  Crime and Punishment in America

Englishman named Abraham Finch. He is turned
over to the English government, which finds him
guilty and promptly executes him.
• New Netherland governor Willem Kieft abolishes the
colony’s judicial council and places himself in control
of its criminal justice system.
1640
• July 9: African-American indentured servant John Punch
is declared a “slave for life” by the colony of Virginia,
an incident that marks the official beginning of racial
slavery in the English colonies.
1641
• The Massachusetts General Court approves the Massachusetts Body of Liberties, which promotes jury

trials and freedom from unlawful search and seizure
but applies the death penalty in cases of homosexuality, adultery, bestiality, polytheism, witchcraft, and
blasphemy.
1643
• February: New Netherland governor Willem Kieft’s attack on nearby American Indian villages prompts retaliatory attacks that destroy several Dutch settlements
near New Amsterdam.
1649
• September 21: The colony of Maryland passes the ironically titled Toleration Act, which guarantees religious
freedom for all Christians but mandates the death penalty for non-Christians.

In this 1906 photographic re-creation of a 17th-century Puritan home, a woman sits at a spinning wheel by a fireplace. Colonial
Massachusetts was governed by a strict social code that required neighbors to monitor one another’s activities and was more likely
to address unacceptable behavior in church than through codified legal standards. (Library of Congress, Prints and Photographs
Division [LC-USZ62-90823])

Old Crimes in the New World 15

1660
• June 1: Quaker evangelist Mary Dyer is executed for attempting to spread Quakerism in Massachusetts.
1663
• September 13: Slaves revolt in Gloucester County, Virginia, marking the first organized slave rebellion in North
American history.
1664
• September 8: England assumes control of New Amsterdam (modern-day New York).
1669
• The Virginia Assembly passes a law that declares slaveholders may legally kill their slaves in the process of
punishment.
1670
• September 5: Future Pennsylvania governor William
Penn is acquitted in London on charges of disturbing the peace. He had been arrested for meeting with
other Quakers, a persecuted group in England at the
time.
1674
• November 10: In the Treaty of Westminster, the Netherlands officially cedes New Netherland (now New York
and New Jersey) to England.

1681
• April 2: The colony of Pennsylvania is founded.
1689
• May 24: The English Toleration Act is passed, promoting religious toleration in England and the colonies.
• December 16: The English Bill of Rights, which prohibits
cruel and unusual punishment and punishments without trial, takes effect.
1690
• John Locke’s Two Treatises on Government, which will heavily influence U.S. civil rights law, is published.
1692
• During the infamous Salem witch trials, local officials
in Salem, Massachusetts, try and execute 20 people for
witchcraft.
1693
• May: Massachusetts governor William Phips pardons all
accused witches.
1697
• The Massachusetts General Court declares a day of
fasting and penance in response to the Salem Witch
Trials.
• Samuel Parris, the Salem minister who led the witch
hunt, is fired by his congregation.

16

Crime and Punishment in America

Eyewitness Testimony
The American Indian Experience
After the wars and killings had ended, when usually there
survived only some boys, some women, and children,
these survivors were distributed among the Christians
to be slaves. The repartimiento or distribution was made
according to the rank and importance of the Christian
to whom the Indians were allocated, one of them being
given thirty, another forty, still another, one or two hundred, and besides the rank of the Christian there was also
to be considered in what favor he stood with the tyrant
they called Governor. The pretext was that these allocated Indians were to be instructed in the articles of the
Christian faith. As if those Christians who were as a rule
foolish and cruel and greedy and vicious could be caretakers of souls! And the care they took was to send the men
to the mines to dig for gold, which is intolerable labor,
and to send the women into the fields of the big ranches
to hoe and till the land, work suitable for strong men.
Nor to either the men or the women did they give any
food except herbs and legumes, things of little substance.
The milk in the breasts of the women with infants dried
up and thus in a short while the infants perished. And
since men and women were separated, there could be
no marital relations. And the men died in the mines and
the women died on the ranches from the same causes,
exhaustion and hunger.
Jesuit priest Bartolomé de Las Casas, writing on the effects of
the encomienda system, 1552 quoted in Zinn and Arnove,
Voices of a People’s History of the United States, p. 39.
I am now grown old, and must soon die; and the succession must descend, in order, to my brothers . . . and then
to my two sisters, and their two daughters. I wish their
experience was equal to mine; and that your love to us
might not be less than ours to you.
Why should you take by force that from us which you
can have by love? Why should you destroy us, who have
provided you with food? . . . We can hide our provisions,
and fly into the woods; and then you must consequently
famish by wronging your friends. What is the cause of
your jealousy? You see us unarmed, and willing to supply
your wants, if you will come in a friendly manner, and not
with swords and guns, as to invade an enemy.
I am not so simple, as not to know it is better to eat
good meat, lie well, and sleep quietly with my women and
children; to laugh and be merry with the English; and,

being their friend, to have copper, hatchets, and whatever
else I want, than to fly from all, to lie cold in the woods,
feed upon acorns, roots, and such trash, and to be so
hunted, that I cannot rest, eat, or sleep. In such circumstances, my men must watch, and if a twig should but
break, all would cry out, “Here comes Captain [John]
Smith”; and so, in this miserable manner, to end my miserable life; and, Captain Smith, this might be soon your
fate too, through your rashness and unadvisedness.
I, therefore, exhort you to peaceable councils; and,
above all, I insist that the guns and swords, the cause of all
our jealousy and uneasiness, be removed and sent away.
Wahunsonacock (“King Powhatan”), leader of the Powhatan
confederacy, writing to Virginia colonist John Smith in a
winter 1607 letter, quoted in Nabokov, Native American
Testimony, pp. 72–73.

France and Spain in the New World
The Indians must be made to work for wages in the fields
or in the cities, so that they have no excuse for idleness
. . . This order must be enforced by our justices; private
Spaniards must not be allowed to bring pressure upon the
Indians, even within their own encomiendas. You are to
give orders for proper daily wages to be paid to the Indians themselves, and not to their chiefs, or to any other
intermediaries. They are not to be overworked; and it
must be made clear that Spaniards who disregard these
orders will be severely punished . . .
You are to do justice, and to see to it that the grievances of the Indians are removed, and their tributes lightened; observing and enforcing in all things the provisions
made by the New Laws for the good government of the
Indies.
Instructions to Luis de Velasco, second viceroy of New Spain,
1550, quoted in J. H. Parry, The Audiencia of New
Galicia in the Sixteenth Century: A Study in Spanish
Colonial Government, pp. 65–66.
The encomenderos, who have only been encomenderos,
and not conquistadors, be not deceived, Your Excellency
. . . they are tyrants . . . because those people are free
by right and natural law and do not owe the Spaniards
anything . . . Encomiendas in themselves are bad, wicked,
and intrinsically depraved, not in harmony with any law
or reason, because to give or apportion free men against
their will, commanding them for the good and usefulness
[of the Spaniards] . . . and behind their backs to deprive
kings of their kingdoms and princes and natural lords of

Old Crimes in the New World 17

their domains—is there greater infernal depravity, wickedness and inequity, impiety and tyranny?
Bartolemé de Las Casas, writing in a reply to Fray Matías
de San Martín, bishop of Charcas, quoted in Luis N. Rivera,
A Violent Evangelism: The Political and Religious
Conquest of the Americas, p. 119.
I asked the savages for an Iroquois prisoner, whom they
gave me. I saved him from a good many tortures that
he would have suffered, such as they inflicted upon his
companions . . .
Some days afterward this Iroquois prisoner, whom I
had under guard, on account of the excess of liberty that
I allowed him, got away and escaped, because of the fear
and terror that he felt, in spite of the assurances given him
by a woman of his tribe, whom we had at our settlement.
Samuel de Champlain, The Voyages and Explorations of
Samuel de Champlain (1632), v. 1, pp. 226, 229.
All punishment of innocent subjects, be they great or little,
are against the law of nature . . . But the infliction of what
evil soever on an innocent man that is not a subject, if it be
for the benefit of the Commonwealth, and without violation of any former covenant, is no breach of the law of
nature. For all men that are not subjects are either enemies,
or else they have ceased from being so by some precedent
covenants. But against enemies, whom the Commonwealth
judgeth capable to do them hurt, it is lawful by the original
right of nature to make war; wherein the sword judgeth
not, nor doth the victor make distinction of nocent and innocent as to the time past, nor has other respect of mercy
than as it conduceth to the good of his own people. And
upon this ground it is that also in subjects who deliberately
deny the authority of the Commonwealth established, the
vengeance is lawfully extended, not only to the fathers, but
also to the third and fourth generation not yet in being,
and consequently innocent of the fact for which they are
afflicted: because the nature of this offense consisteth in the
renouncing of subjection, which is a relapse into the condition of war commonly called rebellion; and they that so
offend, suffer not as subjects, but as enemies. For rebellion
is but war renewed.
Thomas Hobbes, from Leviathan (1660), The University
of Adelaide. Available online at URL: http://etext.library.
adelaide.edu.au/h/hobbes/thomas.
The petition of Phillip Corven, a Negro, in all humility
showeth: That your petitioner being a servant to Mrs.

Anne Beazley, late of James City County, widow, dead.
The said Mrs. Beazley made her last will and testament
in writing . . . and, amongst other things, did order, will
appoint that your petitioner by the then name of Negro boy Phillip, should serve her cousin, Mr. Humphrey
Stafford, the term of eight years, then next ensuing,
and then should enjoy his freedom and be paid three
barrels of corn and a suit of clothes, as by the said will
appears.
Soon after the making of which will, the said Mrs.
Beazley departed this life, your petitioner did continue
and abide with the said Mr. Stafford . . . some years,
and the said Mr. Stafford sold the remainder of your
petitioner’s time to one Mr. Charles Lucas, with whom
your petitioner also continued, doing true and faithful
service; but the said Mr. Lucas, coveting your petitioner’s service longer than of right it was due, did not at the
expiration of the said eight years, discharge your petitioner from his service, but compelled him to serve three
years longer than the time set by the said Mrs. Beazley’s
will, and then not being willing your petitioner should
enjoy his freedom, did, contrary to all honesty and good
conscience with threats and a high hand, in the time
of your petitioner’s service with him, and by his confederacy with some persons compel your petitioner to
set his hand to a writing, which the said Mr. Lucas now
saith is an Indenture for twenty years, and forced your
petitioner to acknowledge in the same County Court of
Warwick . . .
Your Petitioner therefore most humbly prayeth your
honors to order that the said Mr. Lucas make him satisfaction for the said three years service above his time, and
pay him corn and clothes, with costs of suit.
A civil petition against slavery fraud (1675), addressed to
William Berkeley, governor of Virginia, quoted in Aptheker,
A Documentary History of the Negro People in the
United States, v. 1, pp. 2–3.

Crime in the English Colonies
And I have nothing to comfort me, nor is there nothing to
be gotten here but sickness and death, except [in the event]
that one had money to lay out in some things for profit.
But I have nothing at all—no, not a shirt to my back but
two rags, nor clothes but one poor suit, nor but one pair
of shoes, but one pair of stockings, but one cap, but two
bands. My cloak is stolen by one of my fellows, and to his
dying hour would not tell me what he did with it; but some
of my fellows saw him have butter and beef out of a ship,

18

Crime and Punishment in America

which my cloak, I doubt [not], paid for . . . I am not half a
quarter as strong as I was in England, and all is for want of
victuals; for I do protest unto you that I have eaten more in
a day at home than I have allowed me here for a week.
Indentured servant Richard Frethorne, writing to his father
in England in March and April 1623, quoted in Zinn and
Arnove, Voices from a People’s History of the United
States, pp. 64–65.
WINTHROP: Mrs. Hutchinson, you are called here as
one of those that have troubled the peace of the commonwealth and the churches here; you are known to be
a woman that hath had a great share in the promoting
and divulging of those [theological] opinions that are
causes of this trouble, and to be nearly joined not only

In 1637, Anne Hutchinson was banished from the Massachusetts
Bay Colony for preaching in her home. She was excommunicated
from the church and moved to what later became Rhode Island
and New York. (Library of Congress, Prints and Photographs
Division [LC-USZ62-53343])

in affinity and affection with some of those the court
had taken notice of and passed censure upon, but you
have spoken diverse things . . . and you have maintained
a meeting and an assembly in your house that hath been
condemned by the general assembly as a thing not tolerable nor comely in the sight of God nor fitting for
your sex . . . therefore I would intreat to you to express
whether you do not hold and assent in practice to those
opinions and factions that have been handled in court
already . . .
HUTCHINSON: I am called here to answer before you
but I hear no things laid to my charge.
W: I have told you already and more I can tell you.
H: Name one Sir.
W: Have I not named some already?
H: What have I said or done?
W: Why, for your doings, this you did harbour and countenance those that are parties in this faction you have
heard of.
H: That’s matter of conscience, Sir.
W: Your conscience you must keep or it must be kept for
you.
H: Must not I then entertain the saints because I must
keep my conscience . . .
W: You have joined with them in the faction.
H: In what faction have I joined with them?
W: In presenting the [Antinomian theological] petition
...
H: Wherein?
W: Why in entertaining [the Antinomians].
H: What breach of law is that Sir?
W: Why dishonouring of parents . . . If [the Antinomians] be . . . of another religion, if you entertain them
then you dishonour your parents and are justly punishable . . .
H: I may put honor upon them as the children of God as
they do honor the Lord.
W: We do not mean to discourse with those of your
sex but only this; you do adhere unto them and do
endeavour to set forward this faction and so you do
dishonour us . . .
Mrs. Hutchinson, the sentence of the court you hear
is that you are banished from out of our jurisdiction as
being a woman not fit for our society, and are to be imprisoned till the court shall send you away.
H: I desire to know [why] I am banished?
W: Say no more, the court knows [why] and is satisfied.

Old Crimes in the New World 19

Interrogation of accused heretic Anne Hutchinson by
Governor John Winthrop of Massachusetts, November 7,
1637, quoted in Hall, The Antimonian Controversy,
pp. 312–348.
Master Ambros Marten, for calling the church covenant
a stinking carrion and a human invention, and saying he
wondered at God’s patience, feared it would end in the
sharp and said the ministers did dethrone Christ, and set
up themselves: he was fined 10 pounds, and counseled
to go to Master [Richard] Mather to be instructed by
him.
An account of a 1639 trial in colonial Massachusetts,
quoted in Powers, Crime and Punishment in Early
Massachusetts, p. 204.
At this court one Margaret Jones of Charlestown was
indicted and found guilty of witchcraft, and hanged for
it. The evidence against her was,
1. that she was found to have such a malignant touch, as
many persons (men, women, and children) whom she
stroked with any affection or displeasure, or, etc., were
taken with deafness, or vomiting, or other violent pains
or sickness,
2. she practicing [medicine], and her medicines being
such things as (by her own confession) were harmless
. . . yet had extraordinarily violent effects,
3. 	she would use to tell such as would not make use of
her [medicine], that they would never be healed,
and accordingly their diseases and hurts continued, with relapse against the ordinary course, and
beyond the apprehension of all physicians and
surgeons,
4. some things which she foretold came to pass accordingly; other things she could tell of (as secret speeches,
etc.) which she had no ordinary means to come to the
knowledge of,
5. she had (upon search) an apparent [nipple] in her secret
parts as fresh as if it had been newly sucked, and after
it had been scanned, upon a forced search, that was
withered, and another began on the opposite side,
6. in the prison, in the clear day-light, there was seen
in her arms, she sitting on the floor, and her clothes
up, etc., a [ghostly] little child, which ran from her
into another room, and the officer following it, it
was vanished. The like child was seen in two other
places, to which [Jones] had relation; and one made
that saw it, fell sick upon it, and was cured by the

said Margaret, who used means to be employed to
that end.
Her behavior at her trial was very intemperate, lying
notoriously, and railing upon the jury and witness, etc.,
and in the like distemper she died. The same day and
hour she was executed, there was a very great tempest at
Connecticut, which blew down many trees, etc.
Governor John Winthrop, describing a capital witchcraft
case in Massachusetts in his journal of June 4, 1648,
quoted in Powers, Crime and Punishment in Early
Massachusetts, p. 460.
Philip Veren was ordered to be set by the heels in the
stocks one hour for disowning the country’s power, in
open court, about forcing any to come to the public
worship.
From court records of Essex County, Massachusetts (1663),
quoted in Powers, Crime and Punishment in Early
Massachusetts, p. 151.

Smuggling and Thievery in New
Netherland
[S]ome Christians attempted . . . to steal maize from
these Indians, out of their cabins, which they perceiving endeavored to prevent, thereupon three Indians
were shot dead, two houses standing opposite the fort
were in return forthwith set on fire . . . Imagining that
the Director had accused him [of stealing the corn],
he [Maryn Adriaenzen] being one of the signers of
the petition he determined to revenge himself. With
this resolution he proceeded to the Director’s house
armed with a pistol, loaded and cocked, and a hanger
by his side; coming unawares into the Director’s room,
he presents his pistol at him, saying, “What devilish lies
art thou reporting of me?” but by the promptness of
one of the bystanders, the shot was prevented, and he
himself immediately confined . . . Shortly afterwards
some of the commonalty collected before the Director,
riotously demanding the prisoner; they were answered
that their request should be presented in order and in
writing, which about 25 men did; they therein asked
the Director to pardon the criminal. The matters were
referred to them to decide conscientiously thereupon,
in such wise that they immediately went forth, without
hearing parties or seeing any complaints or documents.
They condemn him in a fine of five hundred guilders,
and to remain three months away from the Manhatens,
but on account of the importance of the affair and

20

Crime and Punishment in America

some considerations, it was resolved to send the criminal with his trial to Holland.
From The Journal of New Netherland (1647), quoted
in J. Franklin Jameson, Narratives of New Netherland,
1609–1664, The Cumorah Project. Available online at URL:
http://www.cumorah.com/etexts/nwnth10.txt.
This contraband trade has ruined the country, and contraband goods are now sent to every part of it . . . [O]f
inspection and confiscation there is no lack; hence legitimate trade is entirely diverted, except a little, which exists
pro forma, as a cloak for carrying on illicit trading . . . Now
the Company itself carries on the forbidden trade, the
people think they too can do so without guilt, if they can
do so without damage; and this causes smuggling and
frauds to an incredible extent, though not so great this
year as heretofore.

Adrian van der Donk, from The Representation of New
Netherland (1650), reprinted in J. Franklin Jameson,
Narratives of New Netherland, 1609–1664, The
Cumorah Project. Available online at URL: http://www.
cumorah.com/etexts/nwnth10.txt.
Trade has long been free to every one, and as profitable
as ever. Nobody’s goods were confiscated, except those
who had violated their contract, or the order by which
they were bound; and if anybody thinks that injustice
has been done him by confiscation, he can speak for
himself.
Cornelis van Tienhoven, from Answer to the
Representation of New Netherland (1650), reprinted
in J. Franklin Jameson, Narratives of New Netherland,
1609–1664, p., The Cumorah Project. Available online at
URL: http://www.cumorah.com/etexts/nwnth10.txt.

C H A P T E R T WO

A New System
of Justice
1700–1789
By the end of the 17th century, England had emerged as the dominant colonial power in North America. The British colonial presence consisted of 13 viable colonies—Connecticut, Carolina, Delaware, Maryland, Massachusetts, New
Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, and Virginia,
plus Newfoundland and Nova Scotia—with a combined population of 275,000.1
The Dutch colonial presence had completely collapsed with the English conquest
of New Netherland in 1664, the French outposts in North America met with little
success, and the Spanish colonial presence in the Americas, though considerable,
was situated primarily in Central and South America.
Yet by 1790, the British Empire in North America had essentially been lost. In
its place were the 13 United States of America, with a total population of 3.9 million2 and a civilian defense force that had driven away one of the most formidable
armies on Earth. With this transformation came a new attitude toward crime and
punishment based not on social harmony, but instead on protecting individual
rights. Most central to this shift was a combination of two factors that are not
ordinarily associated with one another: international smuggling and European
philosophy.

Molasses, Sugar, and Tea
The early 18th century was marked by an increasingly cosmopolitan society in the
English colonies. Ethnically diverse (including Dutch, French, and German immigrants) and driven by trade, the English colonies in North America represented
a kind of commercial culture that would come to define the American way of life.
Importation and exportation were central to the cultural and economic survival of
the English colonies.
Although smuggling had been a reality in the English colonies for many years,
it became a more serious problem during the 18th century, as the colonies engaged
more and more frequently in foreign trade. A major contributor to the North Amer21

22

Crime and Punishment in America

ican colonial black market was the Molasses Act of 1733, passed by the British
parliament as a means of discouraging foreign trade by levying heavy tariffs against
rum, molasses, and sugar imported from non-British colonies. The legislation primarily targeted imports from French and Dutch territories in the West Indies and
was to encourage trade with struggling British colonies in the West Indies, such as
Barbados. Often viewed as a luxury good, molasses was a staple of 18th-century
colonial America, in large part because it was instrumental to the production of
rum, a vital trade item. The tariffs were a burden on colonists, and they created
the first widespread objection to British taxation. “[M]olasses,” John Adams would
later reflect, “was an essential ingredient in American independence.”3 In response
to the high cost of rum, colonists illegally imported tax-free rum from other European nations.
During the early 1760s, the British government suddenly found itself in need
of revenue. The French and Indian War, in which Britain battled France in North
America for control of Canada and much of the Great Lakes region and Ohio
Valley, began in 1754; in 1756 it became part of the Seven Years’ War, a global
conflict pitting Britain, Hanover, and Prussia against France, Austria, Russia,
Saxony, Spain, and Sweden. By the time Britain had achieved its victory and the
Treaty of Paris was signed, it had sustained heavy losses of all kinds. The sense
in Parliament was that the British military had dedicated much of its resources
to the North American conflict and that the British government deserved to be
compensated by the colonies that had benefited from the war.
Concerned with the increase in illegal smuggling, particularly when it involved
Britain’s wartime enemy the French, the British parliament passed the Sugar Act of
1764 to replace the unsuccessful Molasses Act. The Sugar Act cut foreign tariffs on
molasses by half but introduced new regulations to make smuggling more difficult
to hide. It also introduced new taxes on coffee, sugar, wines, and indigo dye. The
response to the Sugar Act was actually harsher than the response to the Molasses
Act in the North American colonies, but reaction remained relatively mild compared to what would soon follow.
In March 1765, Parliament passed the Stamp Act. This new legislation taxed
all paper used for publication or official business in the North American colonies,
requiring each sheet to bear a stamp as evidence that the relevant tax had been
paid. Colonists viewed the Stamp Act as punitive and unfair, and it was now that
the complaint against “taxation without representation” began to clearly take
shape. The American colonies, accustomed to local democratic processes, operated on principles different from those of the British parliament, which did not
formally represent the American colonies in its legislative decisions. The British
took the position that the American colonies enjoyed “virtual representation” in
Parliament, as a legislator was not expected to represent only the interests of his or
her jurisdiction. The American colonists were also not the only British citizens not
directly represented in Parliament—some regions of England itself had no formal
representation. Still, decisions regarding taxation of the North American colonies
had taken place without the consent of those colonies, and the response was immediate—both in considerable acts of arson and vandalism committed by a group
of violent protestors called the Sons of Liberty and in the Stamp Act Congress,
a legislative session made up of representatives from the 13 colonies who met to
condemn not only the Stamp Act but also the very concept of taxation without
representation.

A New System of Justice

The Boston Tea Party summed up colonial dissatisfaction with British tax and anti-smuggling laws. Ensuring the supply of affordable
trade goods—such as tea, sugar, and molasses—was one objective of the American Revolution. (National Archives and Records
Administration [532892])

Opposition to the Stamp Act grew so pronounced that the tax became impossible to enforce. Yielding to pressure, Parliament repealed the Stamp Act a year
later—but also passed the Declaratory Act, stating that the British government
wielded authority over the North American colonies and could tax or regulate them
at its own discretion.
In June 1767, Parliament made good on its promise through the Townshend
Revenue Act, which taxed imports on tea, paper, lead, paint, and certain kinds
of glass. Once again, the American colonists fiercely objected—and once again
Parliament caved in, leaving only the tax on tea intact. American colonists, now
thoroughly incensed, refused to drink English tea and instead drank slightly less
expensive, illegally smuggled Dutch tea. British lawmakers, not unaware of this
practice, passed the Tea Act in 1773, granting the East India Company—a British
tea company subject to the tea tax—freedom to import its tea directly to North
America without passing through Britain, which would grant it relief from most tariffs and result in a price that, even after the tax, would be lower than the smuggled
Dutch tea. The end result would be a near-monopoly for the East India Company
and near-universal payment of what many colonists regarded as an unfair tax. A
small group of colonists responded with the Boston Tea Party in December 1773,
attacking a docked East India Company transport and destroying almost 100,000
pounds of British tea by depositing it in Massachusetts Bay.
Because the individual perpetrators could not be found, Parliament decided to
punish the North American colonies as a whole. The American Revolution came in

23

24  Crime and Punishment in America

response to the five so-called Intolerable Acts, all in 1774 and 1775: the Boston Port
Act (closing all Boston trading ports until the Massachusetts colony agreed to pay
the cost of the East India Company’s destroyed tea), the Impartial Administration
of Justice Act (granting British soldiers the liberty to be tried in England if accused
of a crime related to riot suppression—a new policy colonists associated with the
1770 Boston Massacre, in which a small group of British soldiers fired into a crowd
of protesters), the Massachusetts Government Act (abolishing town meetings and
giving the British government more direct control over Massachusetts), the Quartering Act (holding colonists responsible for feeding and housing soldiers), and the
Quebec Act (granting greater land rights in the former French colony and endorsing its Roman Catholic culture). Although new British legislation directed against
smugglers led to growing anti-British sentiment in the colonies, equally offensive to
many were the means the British government used to enforce existing legislation.

Writs of Assistance and Bills of Attainder
The Fourth Amendment to the U.S. Constitution states that “no Warrants shall
issue, except upon probable cause . . . and particularly describing the place to be
searched, and the persons or things to be seized.”4 Likewise, Article I, Section 9,
states that “No Bill of Attainder . . . shall be passed.”5 These restrictions were based
on realistic concerns surrounding British policies that were actually put to use in
the years preceding the American Revolution.
Writs of assistance, or general search warrants, were royal orders issued to
customs officials and other law enforcement officers granting them the authority to search any house for any suspected evidence or contraband goods without
making any sort of formal request or establishing probable cause. During the
mid-18th century, they were used primarily as part of a failed effort to prevent
the widespread smuggling that had become common among the North American
colonists, but due to the lack of oversight, abuses were rampant. Customs officials
were allowed to seize material they suspected to be smuggled, sell them, and keep
a portion of the profits.
Because they were royal orders, writs of assistance were effective for the life of
the reigning monarch but expired upon his or her death. After King George II’s
death in 1760, colonial officials were eager to renew the writs of assistance themselves under the principle of royal assent, by which royal orders could be made by
government officials acting on behalf of the monarch. When British officials in
Massachusetts attempted to renew the writs of assistance for their customs officials
in 1761, colonial prosecutor James Otis resigned from his post and argued that
the writs of assistance violated the most fundamental principles of British law. Regardless of whether royal assent granted officials the authority to renew the writs,
a larger issue for Otis was that he believed that they violated the natural rights of
British citizens—the first time a highly visible argument based on natural rights had
been made against British policies in North America. “Every man, merely natural,
was an independent sovereign, subject to no law but the law written on his heart
and revealed to him by his Maker,” Otis argued. “His right to his life, his liberty,
no created being could rightfully contest. Nor was his right to his property less
contestable.”6 The loyal British justices of the court were not persuaded by Otis’s
argument, but one person in attendance—future U.S. president John Adams—was
inspired by the natural rights argument, later remarking that “American independence was then and there born.”7

A New System of Justice

Equally offensive to the concept of natural rights were the bills of attainder
(“taintedness”), which granted Parliament the ability to “stain” an individual by
declaring him or her to be guilty of a crime, claim that individual’s property for the
state, and punish him or her for the alleged offense or offenses without the benefit
of a trial. Although bills of attainder were not frequently used, they essentially
gave Parliament the authority to execute any specific person without trial merely
by accusing him or her of treason. Although many North American colonists were
outraged that this concept existed, the American revolutionaries themselves used
bills of attainder to claim the land of colonists loyal to Britain.

We Hold These Truths to Be Self-Evident . . .
British abuses of power contributed to American policies and declarations protecting the rights of the accused, but the process behind these policies occurred in a
more complex and organic, and less reactionary, manner.
The most significant factor in the overall philosophy behind U.S. human rights
was the Enlightenment, a European philosophical movement that began in the 17th
century and ended in the 18th. The Enlightenment favored a conscious return to the
rationalism of the Greek philosophers and a new system of thought favorable to science and to individual rights. In his Second Treatise of Government (1690), British philosopher John Locke argued that human beings possess natural rights and that legitimate
governmental power comes not from the divine right of kings but rather from the
“consent of the governed.”8 In his Discourse on the Origin and Basis of Inequality Among
Men (1754), French philosopher Jean-Jacques Rousseau argued that human beings are
equal in their natural state and become unequal only when society makes them so;
eight years later, in his The Social Contract (1762), he argued that the ideal government
is a direct democracy, controlled by the general will of its citizens.
The Enlightenment philosopher who had the greatest influence on the American philosophy of crime and punishment was the Italian thinker Cesaré Beccaria.
His work On Crimes and Punishments (1764) was a favorite of Thomas Jefferson, who
copied quotations from it for easy reference. Most central to Beccaria’s thesis was
that the purpose of punishment is always to deter future crime, not to punish past
crime. Revenge, from Beccaria’s perspective, is useless for purposes of criminal
justice. Because the purpose of punishment is to deter future crime, punishments
should be known by the public, be rendered as swiftly as reasonably possible, and
be of a similar character as the crime, so that the people will quickly associate the
idea of the crime with the idea of the penalty.
Beccaria was also a staunch opponent of the death penalty, arguing that it
desensitizes people to the value of human life, violates the natural right to life, and
is less effective as a deterrent than a lifetime of public supervised hard labor. A
dead prisoner, Beccaria reasoned, is of no value to the community; he or she can
contribute nothing, and the deterrent effect of his or her execution will fade almost
immediately as the offender is simply forgotten. But a prisoner serving public hard
labor will never be forgotten—he or she will always be a visible sign of the original
offense—and the fruits of the prisoner’s labor will also serve to benefit the larger
community. In his Notes on the State of Virginia (1785), Jefferson proposed a new law
code for Virginia based on a modified form of Beccaria’s system. Jefferson was
not as strict an opponent of the death penalty as Beccaria, but he believed that
the death penalty should be restricted to cases of murder and treason. At the time
Beccaria wrote, death penalties for property crimes were commonplace in England,

25

26

Crime and Punishment in America

Thomas Jefferson advocated a reformed criminal justice system with fewer capital crimes and
more systematic punishments. (National Archives and Records Administration [532932])

and death penalties for religious offenses were not unheard of. Jefferson’s proposed
strict limits on the death penalty were considered radical and were never adopted
by Virginia’s legislature. Nevertheless, the broader principles of Beccaria’s system
became the principles of the American constitutional framers, and Jefferson himself would be given the opportunity to implement some of Beccaria’s suggested
reforms when he became president in 1801.
The ideas of the Enlightenment were considered highly controversial, but the
writings of early American thinkers became part of the Enlightenment movement;
the framers of American government would base the entire system on the principles
established by philosophers of the European Enlightenment. The Declaration of
Independence was itself a short work of Enlightenment philosophy, proposing that
“all men are created equal”; that “life, liberty, and the pursuit of happiness” are basic
rights, worth more than social harmony or the alleged natural or divine authority
of kings; that governments are social contracts and should be controlled by the gov-

A New System of Justice

erned; and that the sole purpose of government is to protect the rights of individuals.9
These general principles would inform the later constitutional debates.
If the Enlightenment influenced the rhetorical broad strokes and philosophical emphases of the American revolutionary movement, more practical concerns
determined its specific philosophy of criminal justice. Several weeks before the
Declaration of Independence was approved by the Second Continental Congress,
Virginia legislator George Mason drafted a Virginia Declaration of Rights, a document that guaranteed specific rights to citizens of Virginia. These rights included
the right to a jury trial and a ban on writs of assistance (general search warrants).
Both were practical concerns for Virginians: Jury trials had been threatened by the
Massachusetts Government Act (which gave sheriffs the power to appoint juries),
and customs officials used—and frequently abused—writs of assistance in the process of conducting their work.
The Enlightenment also highlighted the paradox of slavery. The 18th century
had been characterized by the slow consolidation of slave labor as slaves participated in both the agricultural economy of the southern colonies and the more mixed
economies of the middle and northern colonies. The early part of the century
experienced overt resistance by slaves. In 1739, the Stono Rebellion created widespread upheaval in South Carolina when more than 20 slaves captured weapons
from