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The Vanishing Idealism of Criminal Law in Colonial America

James Kalb
Yale Law School
Supervised Analytic Writing—Barbara Black, supervisor
1977
Draft

This paper deals with developments in the substantive criminal law of Pennsylvania, Massachusetts, and New York during what I shall call the “eighteenth century”: the period beginning in Pennsylvania in 1682 with the founding of the proprietary government, in Massachusetts in 1692 with the granting of the Provincial Charter, and in New York in 1691 with the reformation of the court system and the permanent establishment of a legislature. These three colonies, although neighbors, differed radically from each other and from England in their origins, in their political and social arrangements, and in the ethnic and religious makeup of their people. They were thus representative of the diversity of the British colonies in North America, and accordingly one would expect to find great differences in their law, including their criminal law. In the beginning such differences existed. However, during the course of the eighteenth century the criminal law of each of the colonies grew much more like that of England. By the time of the Revolution the original differences from English law had largely disappeared, and the criminal law of the three colonies, especially Pennsylvania and Massachusetts, had become remarkably uniform.

In what follows I will trace these developments and discuss their causes. I will not discuss the entire body of criminal law in each colony, but only the major crimes against the person, against property, and against religion and morals. Other categories of crime, such as contempts of authority, offenses against public order, and currency offenses either tend to be too idiosyncratic in their definition and punishment for comparison to be useful, or raise issues which would inconveniently broaden the scope of this paper.

Of the three colonies, Pennsylvania presents the most striking example of convergence with English criminal law. At the beginning of this period, the criminal laws of Pennsylvania were remarkably humane. The laws dealing with offenses against the person and against property were almost uniformly much milder than those of England; the sole exception was murder, punishable in Pennsylvania, as in England, by death. On the other hand, laws dealing with offenses against religion and morals, while not at all severe by the standards of the time, were taken much more seriously than in England. Thus, such acts as adultery, fornication, and lying, which were not criminal in the mother country, were made so in Pennsylvania. By the end of the period, Pennsylvania law had become much more severe in its treatment of crimes against the person and against property. While not every such crime which was capital in England was also capital in Pennsylvania, the crimes for which most executions took place in England were nonclergiable capital offenses in Pennsylvania. However, the concern about offenses against religion and morality which had manifested itself in the early Pennsylvania enactments had apparently disappeared long before 1776, although the blue laws remained on the books.

Early Pennsylvania legislation can best be understood by considering the legislators. Both William Penn, the founder of Pennsylvania, and most of the early colonists were Quakers, and therefore it is to be expected that Quaker beliefs would have a profound effect on all the institutions of early Pennsylvania, including criminal law. Penn’s purpose in founding the colony was to establish a commonwealth founded on Quaker principles which would provide a refuge where his co-religionists would be free to live in accordance with their beliefs. As one would expect of a person so closely connected with the most powerful men in England, and yet so deeply at odds with the predominant political, social, and moral attitudes of the day, Penn had devoted a great deal of thought to politics and political reform.[.5] In a letter to Friends in Ireland, dated April 12, 1681, he displayed his readiness and eagerness to undertake the task of founding a new sort of government:

“my understanding and inclinations have been much directed to observe and reprove mischiefs in governments, so it is now put into my power to settle one.[1]

The way in which Penn settled the new government was to be heavily influenced by Quakerism.

In their attitudes toward criminal law, the Quakers were distinguished by their sympathy for offenders. They stressed the social and environmental causes of crime rather than the wickedness of criminals, and accordingly emphasized not punishment but rehabilitation. These attitudes sprang from the Quaker beliefs that the “inner light” can be found in each of us, and that accordingly even the worst criminal can reform, and is an appropriate object of sympathetic concern.[2] Quaker attitudes were strengthened by the experiences of many members of the sect, including Penn himself, who were prosecuted and jailed on account of their beliefs. They were further fortified by the authority of scripture. Foxe’s protest against the death penalty for stealing and his suggestion that multiple restitution be substituted was apparently based on the Old Testament.[3]

In accordance with these beliefs,punishments of mutilation, which make rehabilitation all the harder, and capital punishment, which denies its possibility, were to be abandoned in the new colony to the degree possible. In their place were to be put fines, corporal punishment, imprisonment, and restitution. The pauperization of the offender’s family was to be avoided by limiting forfeitures. Moreover, the prisons were to be reformed. Instead of breeding places for vice and disease, they were to be workhouses, where offenders could pay their debts to society and to the person wronged through productive labor.[5]

The initial Pennsylvania legislation regarding crime and punishment, enacted at Upland (Chester) in 1682, fully reflected Quaker ideals. This legislation was proposed by Penn to the newly constituted General Assembly and was on the whole enacted as proposed, although some of the measures proposed were amended before being passed, and others were rejected outright.[6]

This early legislation left only murder and treason capital. Murder was made capital by specific enactment[7], treason by the failure to enact a law covering it, and the resultant continuing applicability of English law. Even in imposing the death penalty for murder, Penn and the General Assembly showed their humane spirit by limiting forfeitures to half the offender’s estate: in England, of course, the entire estate would have been forfeited.

Lesser penalties were imposed for other crimes against the person. Rape, a nonclergiable capital offense in England, was punishable on the first conviction by a year’s imprisonment, whipping, and forfeiture of a third of the offender’s estate. Again, in England the offender’s entire estate would have been forfeited. On the second conviction, the punishment was life imprisonment.[8] Manslaughter, in England a clergiable capital offense, and assault were both punishable in the discretion of the court according to the circumstances of the case.[9] The punishment for manslaughter, however, was to be non-capital.

If the penalties for offenses against the person were astonishingly slight by English standards, the penalties for offenses against property were still more so. Arson, a nonclergiable felony in England, was punishable by a year’s imprisonment, double damages, and corporal punishment in the discretion of the court.[10] Burglary was punishable by quadruple damages plus three months imprisonment[11]; robbery by quadruple damages plus up to 21 lashes on the first conviction, up to 31 lashes on the second.[12] Both these crimes were nonclergiable capital offenses in England. Simple larceny, regardless of the value or kind of goods stolen, was punishable by quadruple damages alone, payable from the offender’s goods or by his labor.[13] In England, larceny of goods worth more than 12 pence or less was punishable by whipping or imprisonment, but larceny of goods worth more than 12 pence was a capital offense from which a series of statutes had removed the benefit of clergy in many cases. For example, horsestealing had been made nonclergiable by 1 Edw. 6, c. 12, s. 10 (1547) and 23 Edw. 6, c. 33 (1548), and stealing cloth or other woolen material from a rack at night was deprived of benefit of clergy by 22 Car. 2, c. 5, s. 3 (1670). Thus the theft of 1 pound worth of cloth under the circumstances above would be punishable by hanging in England, but by restitution of 4 pounds in Pennsylvania.

In harmony with the Quaker view of criminal law as a means of moral reformation, as well as with the idealism of the founder and early settlers of Pennsylvania, that colony began its existence with a comprehensive code for moral and religious living backed up by the sanctions of the criminal law. The provisions of this code reflect both the strictness and the comparative mildness of the Quakers. At the time, the most serious offenses against morality were sodomy and bigamy. Under English law both offenses were punishable by death, although bigamy was clergiable. The humanity of the Quakers reduced this punishment to life imprisonment for bigamy, and to whipping, forfeiture of the offender’s estate, and imprisonment for sodomy. The term of imprisonment for sodomy was to be six months for the first conviction, but life for the second.[14]

However, among the Quakers, humanity did not mean indifference. Thus, certain lesser sex offenses were criminal in Pennsylvania which were not punishable as such in England, where the civil authorities punished only grossly scandalous open lewdness. Incest and adultery were punishable on the first conviction by a year’s imprisonment and forfeitures or whipping, on the second by life imprisonment.[16] Fornication was punishable by corporal punishment or a fine, or by enjoining marriage.[17]

A broad range of other immoral or irreligious conduct was also proscribed. Drunkenness, health drinking and pledging, gambling, swearing, and lying were all punishable by fines of three to five shillings, terms of imprisonment of three to five days, or both.[18] Many of these provisions had counterparts in English law, although it is questionable whether they were often enforced during the Restoration period. Others, such as the proscription of lying, and of health drinking and pledging, did not, and their adoption in Pennsylvania reflected the Quaker emphasis on purity and sobriety of life.[19]

This criminal code, established in the first year or two of the colony’s existence, changed remarkably little before 1700. The chief changes that did occur took place in 1692, when control of the colony was taken away from Penn, all the colony’s laws were abrogated, and a new code of laws passed by the General Assembly had to be approved by Fletcher, the new royal governor and a man with no particular sympathy for Quaker ideals.{19.5] The statutes dealing with manslaughter, rape, arson, sodomy, and lying were not re-enacted.[19.7] The result was that English law became applicable to these crimes, and remained applicable to them until 1700, when other statutes regarding these crimes were passed.

It is not clear what the reasons for this stability were. It may have been that the criminal laws already in existence were satisfactory to the legislators and their constituents; it may just as well have been that the factionalism and general instability of the institutions of government which characterized Pennsylvania during the early colonial period engaged the energies of legislators in other directions. The failure of Pennsylvania legislators after Penn had regained control of his colony in 1694 to enact new statutes to replace those not re-enacted under Fletcher suggests that the latter explanation is the correct one. The failure to re-enact the statutes mentioned above resulted in the creation of four new capital crimes, three of which were non-clergiable. If the legislators had been seriously committed to their old criminal code, and not entangled with other matters, such a change would not have been allowed to stand.

The laws on theft, which underwent considerable development, are another exception to the general stability of criminal law at this time. Apparently theft was an exceptionally troublesome crime in early Pennsylvania. It was found necessary to provide whipping as an additional punishment for thefts of property worth five shillings or more. The penalty for a second conviction for such thefts was set at 39 lashes and banishment, a severe penalty, but still much milder than death, the penalty English law would have imposed.[20] It was also found appropriate to distinguish thefts of living goods from other thefts. The former were punished more lightly if the goods were returned alive.[21]

Other legislation during this period, ancillary to previous enactments, dealt with offenses against religion and morals. One act, passed in 1697, made a woman who had a child during the extended absence of her husband subject to the penalty for fornication.[22] It seems strange that the penalty imposed should be that for fornication rather than that for adultery. Apparently, the General Assembly soon came to think so too, since three years later the heavier penalty was imposed.[23] Another 1697 enactment also demonstrated the continuing interest of the General Assembly in using the criminal law to promote the moral purity of the still predominantly Quaker as well as the difficulties encountered in that enterprise. A statute passed that year imposed surprisingly heavy penalties, ranging up to a 5 pound fine and two months imprisonment, for repeated convictions for swearing, apparently an exasperatingly difficult vice to eliminate.[24]

In 1700, Penn returned to the colony for the first time since 1683. During his stay in England there had been disturbing reports from Pennsylvania about uncertainty and instability in government, and resulting lawlessness. Indeed, a breakdown in the administration of justice and resultant public disorder had been among the reasons that had been given for taking control of the colony away from Penn in 1692.[25] Penn had felt obligated to write to the Council to complain about the growth of vice in Philadelphia, and to request that measures be taken to suppress it.[26] Furthermore, there were reports that the trade laws were not being enforced,[27] and even that Pennsylvania had become a sanctuary for pirates.[28]

Accordingly, upon his arrival Penn undertook a comprehensive program for bringing the government and the province into order. As part of this program, he had the General Assembly undertake a comprehensive revision of the laws. In contrast to his course of conduct in 1682, when he had presented laws he had previously prepared to the Assembly for their approval, amendment, or disapproval, he gave the Council full authority to draft whatever laws they thought necessary.[29] Thus, the laws enacted in 1700 may be taken to reflect the judgment of the people to a greater degree than previous law had. However, these laws seem to have been the first with respect to which the colonial government complied with the charter’s requirement to submit all statutes to the Privy Council for their approval within five years of enactment, and compliance with this requirement cut back on the freedom formerly possessed by the General Assembly.

The criminal laws enacted were generally more severe, and sometimes far more severe, than those which had previously been in force. Terms of imprisonment were made longer, whippings were made more severe, and punishments of mutilation were added. Since laws dealing with all categories of crime were made harsher, the increased severity was apparently due more to a change in the legislator’s attitudes toward criminal law than to problems encountered in dealing with particular crimes. Some of the punishments provided were so barbaric that the Privy Council felt compelled to disallow them on that ground alone, a surprising situation when one considers the ideals of the founder and original settlers of the colony. Nonetheless, the legislators did remain true to their heritage to the extent of refusing to extend capital punishment beyond treason and murder.

Arson was to be punished by life imprisonment and forfeiture of the offender’s entire estate, a much heavier penalty than before, as well as a break with the principle of limiting forfeitures to some part of the offender’s estate.[30] Burglary was made punishable by quadruple restitution plus 21 lashes and six months imprisonment. If the burglary took place at night, the offender was to be branded on the forehead with a T, and an extra six months were to be added to the prison sentence.[31] In imposing branding on the forehead and life imprisonment as punishment for crimes against property, the General Assembly seems to be abandoning its earlier commitment to rehabilitation in favor of a purely punitive approach. Such punishments seem to amount to an admission that rehabilitation is impossible.

Rape was to be punished on the first conviction by seven years imprisonment, 31 lashes, and forfeitures, and on the second by branding with an R on the forehead and castration.[32] Castration as a punishment was too much for the Privy Council, and this act was disallowed. The General Assembly substituted life imprisonment in response.[33]

Sodomy was made punishable by life imprisonment with a whipping every three months the first year. If the offender was a married man, the additional punishment of castration was to be imposed; apparently the existence of another sexual outlet was thought to be an aggravating circumstance. The Privy Council disallowed the law on account of this final provision and the General Assembly repassed the law without it.[34]

Other changes in prior enactments included a provision for doubled punishment for a second conviction for drunkenness[35] and a further lengthening of the graduated scale of punishments for swearing. These provisions apparently reflect the continuing difficulty the colonial government had in dealing with the minor offenses against morality. Someone convicted a fourth time of swearing by God, Christ, or Jesus would now be liable to a maximum penalty of a 5 pound fine, two months imprisonment, and 21 lashes every three months for seven years.[36] New religious offenses included blasphemy, for which either a 10 pound fine or three months imprisonment was to be imposed[37], and sabbathbreaking, punishable by a 20 shilling fine.[38] Other provisions of the code of criminal law enacted in 1700 were similar to previous enactments.

The next flurry of criminal legislation came in 1705-6. Some of the laws enacted in 1700 had been disapproved by the Privy Council, and along with amended versions of the laws that had been disapproved, the General Assembly passed some entirely new legislation. On the whole, the legislation enacted at this time was neither more nor less severe than that enacted in 1700; it seems intended chiefly to fill in gaps and touch up details of the body of law enacted that year. The change in attitude reflected by the 1700 legislation apparently was permanent. Thus, robbery was made punishable on the first conviction by branding on the forehead with a T plus the usual punishment for theft, and on the second conviction by life imprisonment.[39] This is a much more severe punishment than that imposed by the previous statute, enacted in 1684, but was in keeping with the new spirit of Pennsylvania criminal law, and was comparable to the punishment recently provided for burglary.

Manslaughter was specifically provided for for the first time since 1693, when the colony’s initial law on manslaughter was abrogated. The new law made manslaughter punishable by forfeiture of the offender’s estate and one year’s imprisonment.[40] A law against accidental homicide also passed at this time exemplifies the newly severe spirit of Pennsylvania law. It was made a crime punishable by a year’s imprisonment and forfeiture of half the offender’s estate;[41] in England it had been excusable and carried no penalty at all.[42]

The largest number of statutory changes at this time concerned offenses against religion and morality; the changes were relatively minor, however. 39 lashes were added to the previous punishment of life imprisonment for bigamy.[43] Adulterers and fornicators were given the choice of paying a fine instead of submitting to whipping or imprisonment, the punishments previously established.[44] The penalty for incest was lowered to the penalty for adultery or fornication, depending on the circumstances, plus forfeiture of a third of the offender’s estate.[45] And there was a new schedule of penalties for gambling.[46]

Reducing the penalty for incest and permitting payment of a fine instead of whipping or imprisonment for adultery and fornication may indicate a less severe attitude toward morals offenses. In any case, it is remarkable that the 1705-6 legislation to offenses against morals and religion was virtually the last such legislation enacted in the colony of Pennsylvania. It seems likely that the end of such legislation is a sign that there was no longer to be a serious effort to have the government suppress such offenses. As noted above, the series of laws enacted up to 1705-6 gave evidence of the difficulties the colonial government was having in dealing with moral and religious offenses. It is incredible that these difficulties could disappear so completely that no further legislation was required after that time. As will be shown later, in Massachusetts, where a serious attempt was made throughout the colonial period to use the criminal law to enforce moral and religious rules, a steady series of new enactments was found necessary. The lack of such continuing legislative activity in Pennsylvania is good evidence that the attempt at legal enforcement of morality and religion had been given up.

Thus one distinguishing feature of the early criminal law of Pennsylvania, its concern with the moral and religious condition of the people, was given up after 1705. We have seen that its other distinguishing feature, its mildness with respect to a offenses against property and against the person, had been greatly weakened by the legislation of 1700. This latter feature was virtually eliminated in 1718 with the passage of an act entitled “An Act for the Advancement of Justice, and More Certain Administration Thereof.”[47]

The story behind the enactment of this stature is rather unusual. An Act of Parliament of 1 George I, which expressly applied to the plantations, prohibited jurors from using an affirmation instead of an oath, and thus made it impossible for conscientious Quakers to serve as jurors. In spite of this act, a Pennsylvania jury of which eight members were under affirmation tried several men who were charged with a particularly notorious murder, and convicted two of them. The convicted men were hanged. The Quakers were worried about possible English reactions to these proceedings, and at the suggestion of Lieutenant Governor Keith the General Assembly adopted the act named above. This act included an authorization of the affirmation for judicial proceedings, provisions introducing English law regarding the benefit of clergy, and numerous other provisions adopting the substantive criminal law of England which were apparently added as a sweetener for the Privy Council.[48] The laws adopted were severe indeed and break completely with the last remnant of Quaker mildness in Pennsylvania criminal legislation: the reluctance to impose the death penalty. Sodomy, rape, robbery, and burglary were made punishable in accordance with the laws of England; that is, by death without benefit of clergy. Since burglary and robbery seem to have accounted for the majority of executions in England at this time,[49] this act was a long step toward making Pennsylvania law as bloody in practice as English law. Arson was also made punishable by death, but retained the benefit of clergy.

In addition to the severity of English law, the Act introduced some of its irrationality. One of the statutes adopted was the Act of 1 Jac. 1, c. 8, also known as the Stabbing Act. This statute provided that manslaughter was to be punished by death without benefit of clergy if the deceased had been stabbed to death and had not drawn himself. It had been enacted in England at the accession of James I in 1604 on account of the frequent quarrels between Scots and English at that time.[50] It is hard to imagine similar conditions justifying its adoption existing in colonial Pennsylvania.

It is also hard to see why the General Assembly thought it necessary to adopt the so-called Coventry Act, 22 & 23 Car. 2, c. 1. This statute had been enacted in England in 1670 after Sir John Coventry had been maimed in the nose in retaliation for remarks he had made in Parliament.[51] It made mayhem an unclergiable capital offense.

Finally, the Act for the Advancement of Justice and More Certain Administration Thereof adopted 1 Jac. 1, c. 12, which provided for the punishment of witchcraft by death without benefit of clergy. This statute was shortly to be repealed in England by 9 Geo. 2, c. 5, but it remained the law of Pennsylvania for the remainder of the colonial period.

The treatment of larceny, which remained a noncapital offense, proved to be one of the few durable remnants of the original mildness of Pennsylvania law. However, the biblical notion that it should be dealt with by multiple restitution to the person wronged was definitively abandoned in favor of the view that theft was chiefly a public wrong to be punished by the government. Under the new law, the person wronged had a right to restitution, just as he did under English law.[52] In addition, the punishment on the first conviction was 21 lashes and forfeiture of the value of the goods to the government. On the second and third convictions, double and triple forfeitures were imposed, together with up to 50 lashes and four years imprisonment.

The criminal code established in 1718 proved more durable than its predecessors, and there was very little significant criminal legislation thereafter. This stability suggests that in spite of the somewhat haphazard way in which the 1718 Act was adopted, its provisions corresponded to the sense of the community as to what was appropriate. In 1720 there was a rare change in the direction of greater mildness when larceny of property worth under five shillings was recognized as a separate offense carrying a lesser penalty. The penalty imposed was restitution, up to 15 lashes, and a fine of up to 20 shillings.[53] In the late 1760’s there was a rash of legislation, much of it apparently prompted by the disorders that characterized the decade preceding the Revolution. Failure to disperse after a reading of the riot act was made a nonclergiable capital offense,[54] the benefit of clergy was taken away from arson,[55] and a special law was passed against arson or burglary of public buildings.{56]

Laws dealing with nonpolitical offenses were also passed during the 1760’s. The exploits of a gang of frontier ruffians known as the Black Boys caused the General Assembly to make going about armed and disguised and committing various offenses an unclergiable capital offense.[57] And horse-stealing was made a separate offense with stiff but not capital penalties.[58] Actually it is not clear whether the function of this last act was to increase the penalties for larceny set by the 1718 Act in those cases in which the thing stolen was a horse, or to mitigate the severity of the English law with respect to horsestealing, which in the absence of specific enactment would apply to Pennsylvania. The former alternative seems more logical, but the execution of several horse thieves in Pennsylvania suggest that the latter is more correct.

Up to now we have followed the development of the statutory criminal law of colonial Pennsylvania. But to understand the changing social role of criminal law much more is necessary than a knowledge of the statutory system and its changes. The statutes tell us nothing directly about changing patterns of crime or of prosecution. Nor, since Pennsylvania courts apparently had a great deal of discretion in such matters, do they tell us about sentencing. And since the governor could pardon conditionally or absolutely crimes other than murder or treason, and could issue reprieves in cases of murder or treason when appeal was taken to England, the relation between the punishment provided by statute and the punishment eventually imposed must often have been minimal.[59] However, it is the statutory law that is most easily accessible, and until more research is done into court records, it is upon the statutes that we will have to rely most heavily for our knowledge of colonial Pennsylvania criminal law as a social institution.

There is some information available on the frequency and treatment of certain crimes, although generally not enough to show trends. What trends can be inferred, though, are in the direction of increased severity as the century wore on. The best published information available regards the imposition of the death penalty. There are records of its having been imposed for murder, rape, arson, burglary, robbery, horse-stealing, and, in 1722 case, “divers horrid complicated crimes.”[60] For 1745 through 1775 Gipson gives the following figures:[61]


     Crime Condemned Executed

Burglary 66 34 Counterfeiting 7 2 Horse Stealing 4 1 Murder 31 23 Rape 4 1

As the table suggests, pardons and reprieves were fairly common. Of 141 convictions, 41 were pardoned and 26 reprieved.[62]

Most of the executions took place toward the end of the colonial era, a circumstance that suggests a trend toward severity. At first the governor and council seem to have been averse to the imposition of the death penalty for crimes made capital in 1718. None of the eight offenders convicted of burglary from 1718 to 1734 was executed,[63] although the table shows that after 1745 more executions took place for burglary than for all other crimes combined.

Information on trends in the treatment of non-capital crimes is scant. Imprisonment was used less often than the mass of statutes prescribing it would lead on to expect; apparently because the jails of the time were quite inadequate from the point of view either of security or of habitability. For non-capital crimes, flogging and whipping were the favored punishments. Fines tended to become heavier as the colonial period progressed; this trend may evidence either increasing severity or inflation. Branding seems to have been used only when benefit of clergy was pled.[64]

Like Pennsylvania, Massachusetts presents an example of convergence with English criminal law. If the example it presents is not so striking, the reason is not that Massachusetts did not go as far as Pennsylvania did in adopting English law, but that Massachusetts did not have as far to go. At the beginning of the provincial period Massachusetts had already been settled for 62 years and its legal system had gotten beyond the stage of idealistic but impractical experimentation symbolized in Pennsylvania by the law against lying and the punishment of larceny by quadruple damages. In addition, the Puritans had a much bleaker view of human nature to begin with, and the initial criminal law of the Bay Colony had accordingly been much harsher than that of Pennsylvania.

Initially Provincial law regarding offenses against the person and against property was frequently milder than English law; by 1776 almost all the most serious of these offenses were punishable with the same penalty as in England. In contrast, the laws regarding offenses against religion and morality, originally far more severe than those of England, lessened in severity, in practice if not always on their face, as the century wore on. The result of these tendencies was that by the time of the Revolution the criminal law of Massachusetts and Pennsylvania had become remarkably similar with respect to offenses against the person and against property. With respect to offenses against the person and against property, however, Massachusetts continued to show the old Puritan influence, although constantly weakening, for the remainder of the eighteenth century.[65]

The laws enacted in 1692 punished the most serious offenses against the person at least as severely as in England. Murder, rape, and manslaughter were all capital offenses, and there was no provision for benefit of clergy for manslaughter.[66] Murder and rape remained capital offenses throughout the history of the province. However, the Privy Council disallowed the punishment of death for manslaughter, as it disallowed a number of other carryovers from the laws of the Bay Colony. Since another statute regarding manslaughter was never enacted, English law thereafter applied.

The laws punishing offenses against property were somewhat milder than in England, although still barbaric by modern standards. Arson, the most serious offense against property, was made punishable by death, and remained so through the end of our period.[67] However, burglary and robbery, also very serious offenses, were given the lesser punishment of branding on the forehead and triple damages on the first conviction, up to 39 lashes and an hour on the gallows on the second conviction, and hanging on the third conviction. Theft was punishable in a manner reminiscent of early Pennsylvania law, as well as of the Old Testament, by the relatively mild penalty of triple damages plus either a 5 pound fine or 20 lashes.[68]

The heritage of old Massachusetts is most striking in the punishments provided for crimes against religion and morality. The legislature consisted in large part of the same men who had composed the legislature of the Bay Colony, and the same Puritan spirit was visible in their enactments.[69] Accordingly, the initial laws of the province made sodomy, bigamy, incest, blasphemy, idolatry, and witchcraft capital offenses. Sodomy and bigamy remained capital offenses throughout the period, although bigamy had the benefit of clergy.[70] The statutes providing for capital punishment for the other crimes were disallowed by the Privy Council, because the penalty was too severe, or because the crime was too ill defined, and subsequent legislation provided a lesser penalty. Incest was made punishable by up to 40 lashes, an hour on the gallows, and wearing a cloth letter I.[71] Blasphemy was to be punished by any two of: imprisonment up to six months, boring through the tongue with a hot iron, whipping, sitting in the pillory, or sitting on the gallows.[72] There were no further provisions for punishing witchcraft; the general remorse that followed the Salem witchcraft trials must have made the idea of further legislation on the subject unappealing.[73] Nor were there any further provisions regarding idolatry, a crime which might have posed a serious threat to society in ancient Israel, a nation surrounded by actually or potentially hostile neighbors professing strange gods, but which could not have been a subject of much real concern in eighteenth century Massachusetts.

Other laws of the early Provincial period include two which provided for the punishment of fornication and transvestitism with fines of up to 5 pounds, or by corporal punishment.[74] Adultery, no longer a capital offense as it had been in the Bay Colony, was made punishable by up to 40 lashes, an hour on the gallows, and wearing a cloth “A”. The dropping of the death penalty for adultery may have been prompted by the difficulty of getting juries to convict under the old law.[75] Even apart from jury reluctance to impose capital punishment for it, adultery seems to have been a hard crime to prove, or so provisions for punishing persons found in circumstances strongly implicative of adultery would suggest. A law was enacted subjecting a man and a married woman other than his wife found in bed together to a penalty of up to 30 lashes.[76]

As I have already stated, the criminal law of the Province of Massachusetts did not change nearly as much in the course of the period we are studying as the law of Pennsylvania. Certainly it underwent no wholesale revisions like those that took place in Pennsylvania in 1700 and 1718. Nonetheless, certain provisions of Massachusetts criminal law did evolve during the course of the century, and the uniform result of this evolution was to make Massachusetts law more like English law.

This trend is particularly noticeable with respect to the treatment of crimes against property. In 1736 the relatively mild punishment which had been provided for theft was made much more severe for repeat offenders. If the value of the goods stolen was 40 shillings or more, the maximum whipping on the second conviction was increased from 20 to 30 lashes, and in addition the offender was to be set on the gallows for an hour. On the third conviction the threat of the gallows was to be made good if the value of the goods was 3 pounds or more: the prescribed punishment was death without benefit of clergy.[77] Thus, the punishment for larceny of goods worth 3 pounds or more was rather like death with benefit of clergy, the normal punishment for grand larceny in England, except that in Massachusetts the offender was allowed three strikes instead of only two.

The punishments for both robbery and burglary also increased in severity during the century. In 1711, highway robbery was made punishable on the first conviction by burning in the forehead or hand, triple damages, and six months imprisonment, and on the second conviction by death.[78] This was almost the equivalent of making it a clergiable capital offense, since on the first conviction for a clergiable offense the offender would be burnt in the hand and could be imprisoned for up to a year 79 and forced to make restitution.[79] Fifty years later all robbery was made an offense punishable by death without benefit of clergy.[80] Burglary was made a clergiable capital offense in 1715.[81] Benefit of clergy was taken away in 1769; in addition the definition of the crime was broadened to include situations in which there was breaking and exiting at night.[82]

Thus, by the end of the colonial period, the punishment for most major crimes against the person and against property was the same in England and in Massachusetts. Capital offenses in both countries included treason, murder, rape, arson, burglary, robbery, sodomy, manslaughter, and bigamy, of which only the last two were clergiable. Nonetheless, Massachusetts law remained milder than English law. In England, grand larceny was often an unclergiable offense; in Massachusetts it never was, and in fact the punishment prescribed was somewhat less severe than death without benefit of clergy. Furthermore, Massachusetts never adopted the great mass of English capital statutes, many of which punished quite minor offenses with death without benefit of clergy. Such offenses as sending threatening letters to extort money,[83] failure to disperse upon a reading of the riot act,[84] both nonclergiable capital offenses in England, remained punishable in Massachusetts by fines, corporal punishment, and imprisonment.

The tendency of Massachusetts law with respect to offenses against religion and morality to converge with English law is less obvious. Frequent enactments show a continuing interest in controlling such acts through the use of the criminal law. We have seen that this interest was apparently lacking in Pennsylvania through most and in England throughout all of the eighteenth century, but in Massachusetts the Puritan outlook remained powerful during this period. In 1733 and 1746 statutes were enacted providing for increased fines for drunkenness, swearing and cursing. The statutes dealing with swearing and cursing provided for graduated penalties depending on the number of oaths and the number of previous convictions. In accordance with the 1746 statute a person convicted for the third time of swearing or cursing could be fined anywhere from 12 to 24 shillings for the first oath or curse, plus an extra one or two shillings for each additional one.[86]

Statutes relating to keeping the Lord’s Day were enacted in 1711, 1716, 1727, 1741, and 1760.[87] The 1760 act is typical. It provided for 10 to 20 shilling fines for working of traveling on the Sabbath, 10 shilling fines for engaging in commercial traveling on Saturday evening or missing church for a month running, and five to ten shilling fines for frequenting a public house or walking or loitering about on the Sabbath.

Published statistics for criminal prosecutions, although not illuminating with respect to crimes against the person and against property, give evidence of the continuing emphasis of the Massachusetts criminal law system on offenses against religion and morals. Nelson gives the following breakdown for criminal prosecutions in Middlesex County between 1760 and 1774:[88]


Type of Offense Percentage of All Proceedings

Crimes of violence 15% Crimes against property 13% Sex Crimes (mostly fornication) 38% Religious offenses 13%

Thus, a majority of all criminal proceedings were for offenses against religion and morals, whereas in England, crimes of violence and crimes against property had been predominant in the civil courts since the middle of the sixteenth century.[89]

However, Hendrus argues that these figures mask a shift in the type of offense being prosecuted. In Essex county from 1671 to 1680, 38% of all prosecutions for sex crimes involved married couples with an early birth, and 60% of all such couples were prosecuted. In Middlesex County from 1760 to 1774, all but 10 of 210 fornication cases involved bastards. If all married couples with early births had been prosecuted in the later period, the courts might well have been severely overloaded, since at that time nearly half of all brides were pregnant at marriage.[90] Thus, even before the revolution changes in Massachusetts society were forcing the criminal justice system down the road that England and Pennsylvania had already followed in their treatment of offenses against religion and morals. This trend had some slight reflection in the statute books: a 1762 enactment permitted a man found in bed with a women married to someone else to pay a fine of 100 pounds rather than undergo the penalty previously prescribed of up to 30 lashes.[90.5]

The history of the evolution of substantive criminal law in New York is quite different from that of Pennsylvania Massachusetts, both with respect to the type of evidence available and with respect to what happened. The first criminal code of English New York was not chosen by the representatives of the people, but was imposed from above upon the diverse population of that colony. This code was contained in the Duke of York’s laws, promulgated in 1664. These laws were copied largely from those of Massachusetts and New Haven, but with some significant changes and omissions, including the omission of much of the moral and religious legislation.[91] A few minor changes were made in these laws by the Duke or his representative, or by legislative assemblies called in 1683 and 1685, but by and large the original criminal code remained in force in New York down to 1691.

In 1691, with the arrival of Governor Sloughter, the establishment of a Colonial Legislature upon a regular basis, and a complete revision of the judicial system, a new era began. A unanimous General Assembly resolution of April 24, 1691, apparently intended to still rumors to the contrary among the people, declared that former legislation was no longer of force within the colony.[92] Indeed, so completely was the former legal system swept away that during the remainder of New York’s colonial history, pre-1691 precedents were ignored and the fiction was accepted that before 1691 the law of the colony had been English common law.[93]

There is some question about the immediacy and completeness with which the Duke’s laws were replaced by English law. Goebel points out that the April 24 resolution could not have operated to repeal former legislation since it was not approved by council, governor, or Privy Council. He also presents certain evidence for the continuing validity of the Duke’s laws after 1691, although he also asserts that from the beginning New York lawyers and judges viewed English common and statutory law as part of the law which they were putting into effect.[94] However, the wording of the resolution suggests that it was not intended to repeal anything, but only to set forth in an authoritative manner that the prior laws “not being observed, and not ratified and approved by his Royal Highness, nor the late King”, were already “null, void, and of none effect.” Furthermore, sporadic reference to or use of pre-1691 statutes may evidence more the broad discretion and lack of legal training of the New York judiciary, particularly in the early days, than the general continuing validity of those statutes. As will be shown below, New York judges also made use of Acts of Parliament which unquestionably were not valid in the colonies. And finally, if the Duke’s Laws were generally in force after 1691, it is hard to understand why in 1716 the Justices of Suffolk County felt compelled to complain about their lack of power to punish fornication, an offense under the Duke’s Laws but not at common law.[95]

Thus, the starting point for criminal law in New York was generally English common law as modified by Acts of Parliament passed prior to the establishment of a legislature in the colony. As suggested above, the courts did not follow this rule with complete consistency; a 1694 prosecution for adultery, an offense under the Duke’s laws but not at common law, is an example of a deviation.[96]

This starting point was also very nearly the stopping point. There was very little legislation regarding substantive criminal law between 1691 and the Revolution. Thus the statute books cast very little light on the development of criminal law in New York during this period. What legislation there was mostly dealt with problems peculiar to the colony of New York. Thus, laws were passed against the sale of liquor to the Indians and for the prevention of slaves running away in Albany county.[97] Other laws enacted included a series of acts against counterfeiting and related offenses, a serious problem in New York which English law had not adequately dealt with.[98]

Another reason for the scarcity of legislation may have been that it was not the only remedy when pre-1691 law was inadequate. The New York courts exercised a great deal of discretion, and sometimes would apply a post-1691 Act of Parliament not in terms extended to the colonies, or fail to apply a pre-1691 Act.[99] In 1767 the General Assembly attempted to regularize this situation some degree by passing a reception act (later disapproved by the King in Council) for

“divers Acts of Parliament passed since the establishment of a Legislature in this Colony X [which] have nevertheless been practiced upon us extending to this Colony, tho’ they are not declared in the said Acts to extend to the Plantations”

as well as other acts “expedient to extend to this Colony.”[100] Among the acts received were several criminal statutes: a statute of 1 Anne for “punishing of accessories to felonies and receivers of stolen goods and to prevent the willful burning and destroying of ships”, a statute of 7 George II punishing certain forms of forgery with death without benefit of clergy, and a statute of 9 Anne imposing certain quasi- criminal penalties for gambling. It is not clear, however, whether these statutes were among those already “practiced upon us extending to this Colony”, or those “expedient to extend to this Colony.”

Published statistics are only slightly more informative than statute- books with respect to changes in the way the legal a system in colonial New York dealt with crime. However, the statistics on larceny show a trend toward severity, and thus convergence with English law. Before 1750, 71% of convicted thieves were punished by whipping, and only 10% by death. After 1750, 26% were whipped, 22% executed, and 28%, apparently felons who claimed their benefit of clergy, were branded.[101] The statistics also reveal that the major categories of crime were crimes of personal violence, violations of public order, and theft, and that offenses against religion and morals constituted an insignificant proportion of prosecutions.[102] Thus there was no occasion for New York law to converge with English law with respect to this last category of crime, since during this period the legal system in both jurisdictions on the whole ignored it.

Both Massachusetts and Pennsylvania were founded on ideologies. Puritanism and Quakerism determined their initial laws and institutions and in particular gave them distinctive bodies of criminal law radically different from each other as well as from the law of England. Nonetheless, by the end of the colonial period the criminal law of the two colonies was remarkably similar, at least with regard to secular offenses, and the law of each colony had grown to resemble English criminal law much more strongly than it resembled what it had been originally.

The reasons for this change are complex and interconnected. The first and most obvious is that in the course of the colonial period the original ideologies lost their vigor, and with the loss of its ideological foundation the distinctiveness of the two bodies of criminal law disappeared.[102.5] One cause of the decline in the vigor of Puritanism and Quakerism was no doubt the simple social and psychological principle that the enthusiasm of an individual rarely lasts forever, and of a society, never.

Contributing to this natural decay of zeal was the failure of the colonies to reach the spiritual goals set by the founders. Massachusetts never became the shining example to the world of Puritan righteousness, the “city on the hill”,[103] that its founders had hoped for. The people there turned out to be as sinful as elsewhere,[104] and the world soon became interested in other things than Puritan righteousness.[105] The Massachusetts experiment must have seemed rather irrelevant to the European, of the Enlightenment.

The Quaker dream of a Peaceable Kingdom notwithstanding, the early history of the government in Philadelphia was marked by anything but brotherly love. Moreover, the mild laws suggested by Quaker belief, proposed by Penn, and adopted by the representatives of the newly- arrived settlers apparently proved insufficient to provide the peace and order that the Quakers held so dear. Both the general disorder in Pennsylvania from 1682 to 1700 and the unrest there in the 1760’s produced more severe criminal laws. The continual revision of the laws to add heavier and heavier penalties for repeat offenders testify to the intractability of the crime problem and suggest the appearance of a criminal class against whom mild penalties would have no chance of suggest. The impracticality of long terms of imprisonment, due to the lack of habitable and secure prisons, also no doubt contributed to the substitution of hanging for imprisonment as the punishment for the more serious crimes.

The worldly success of the two colonies also furthered the decline of Puritanism and Quakerism, as well as independently contributing to changes in the criminal law. In England, where the Puritans and Quakers had been persecuted minorities, they had naturally concentrated on “laying up their treasures in heaven.” In America, they were the dominant groups in their respective colonies, which by the end of the colonial period were the second and third most populous on the continent. Indeed, Philadelphia was the third most important commercial city in the entire British Empire, and in North America, Boston was second only to Philadelphia. The remarkable growth of Massachusetts and Pennsylvania created opportunities for laying up treasure on earth which the colonists were not slow to take advantage of, and it should not be surprising that the service of mammon had its usual effect on religious zeal.

Prosperity and urban growth also meant more offenses against property[l06.5], and may thus in part account for the stiffer penalties thought necessary for such offenses. In addition, economic expansion created greater heterogeneity of population, both by multiplying social distinctions and by attracting immigrants from all over Europe who were more interested in material than spiritual betterment. This last phenomenon was quite important in Pennsylvania, no doubt in part because of the religious tolerance of the Quaker government. As early as 1702, Friends no longer constituted a majority in Philadelphia, although they retained control of the General Assembly until 1757 by such means as property requirements for voting and non-proportional representation. Their proportion in the population dropped steadily during the eighteenth century, falling to perhaps one-seventh by 1770.[107]

This increasing heterogeneity had two results. First, it meant that the men running the government had less concern for the physical and spiritual well-being of the offender, who was likely to be of a different social, ethnic, and religious background.[108] This was particularly so if the person injured had the same background as those in power, as was quite likely in the case of offenses against property. Thus, social diversity led to more severe punishment for crimes against property and against the person. Secondly, increasing heterogeneity meant that laws relating to morals and religion and heavily influenced by the particular tenets of Puritanism and Quakerism had to be applied to a larger and larger population of non-Puritans and non-Quakers, who could not have had much sympathy for such laws, and who could not have given them the voluntary support and compliance necessary for their effectiveness. Increasing heterogeneity may thus account partly for the slackening enforcement of religious and moral legislation in Massachusetts, and probably played a large part in the apparent abandonment of serious enforcement of such legislation in Pennsylvania after 1705, when the Quakers had already become a minority in their colony.

A final reason for the increasing similarity of the criminal law of these two colonies to English criminal law is the increasing closeness of the contacts, official and otherwise, between the colonies and England. In Pennsylvania, there was very little supervision of colonial legislation from the mother country until after 1700, and in Massachusetts there was none at all until 1691. We have seen how disallowance by the Privy Council prevented colonial legislation after these dates from straying too widely from English patterns and how in Pennsylvania the wholesale adoption of English criminal law in 1718 was motivated in part by the desire to induce the Privy Council to permit affirmation by jurors. The institution of regular supervision of colonial enactments by the Privy Council was thus a major step favoring increased similarity between English and colonial law. The steadily rising level of knowledge about English law among colonial lawyers, judges, and legislators must have also done its part to lead the colonists to follow English models in drafting new criminal legislation. When one is dealing with a problem one doesn’t understand very well, the power of examples is hard to resist.

In spite of all the convergence, the criminal law of Massachusetts and Pennsylvania remained milder than that of England. Although penalties grew more severe during the course of the eighteenth century, and more and more crimes were made capital, the law in the colonies never approached the ferocity and irrationality it attained in England, where in the late 1760’s there were 160 capital statutes in force[110] some of which punished crimes like being in the company of gypsies[111] or maliciously cutting any hop binds growing on poles in any plantation of hops[112] with death without benefit of clergy.

The failure of New York to adopt any other criminal laws than those of England is consistent with the reasons given for the convergence between the criminal law of Pennsylvania and Massachusetts, and that of England. New York was founded as a commercial venture, and thus never had any ideological reason for adopting a distinctive criminal law. Aside from Pennsylvania, it had the most heterogeneous population of any of the colonies in British North America, with substantial numbers of Dutch, German, French, Jewish, Scotch, Scotch-Irish, Irish, and black settlers, as well as English protestants of several stripes.[113] The heterogeneity of the population must have reduced the chances for the consensus needed for adopting a distinctive criminal code, and may have been associated with a high crime rate.

Moreover, a comparison of law-enforcement statistics from Suffolk county, settled mainly by Puritans from Connecticut, with those from the colony as a whole, suggests that the institutions of law enforcement in New York were less efficient than those of Puritan New England. In Suffolk county the average criminal trial took only 2.3 months, in the Colony of New York as a whole, it took 3.7 months. In Suffolk, 74.3% of those accused were convicted, and only 18.7% of all criminal cases were left unresolved. For the colony as a whole, the figures are 47.9% and 36.0%.[114] The inefficiency of law enforcement must have provided New York legislators with an additional reason for retaining the severe laws of England.

The excessive severity and irrationality of English law could be mitigated in practice by the broad discretion of the New York judges. Also, many of the most irrational English capital statutes were passed after New York was settled and granted a legislature.[115] Thus the disadvantages of exclusive reliance on English law could be avoided.

Footnotes

[0.5] For a brief account of Penn and the founding of Pennsylvania, see Sylvester K. Stevens, Penssylvania, Birthplace of a Nation (New York, 1964), pp. 28 ff.

[1] ibid., p. 33.

[2] See Auguste Jorns, The Quakers as Pioneers in Social Work (New York, 1931), pp. 163 ff.

[3] Herbert William Keith Fitzroy, “The Punishment of Crime in Provincial Pennsylvania”, 60 Pennsylvania Magazine of History and Biography 242.

[5] Laws Agreed upon in England, Charter and Laws 99.

[6] Charter and Laws 478.

[7] Charter and Laws 144.

[8] Charter and Laws 100.

[9] ibid. 114, 144.

[10] ibid. 112.

[11] ibid. 112.

[12] ibid. 170-1.

[13] ibid. 112.

[14] ibid. 110.

[15] William Hawkins, 1 Pleas of the Crown 10 ff.

[16] Charter and Laws 478.

[17] ibid. 145.

[18] ibid. 108-9.

[19] 1 Pleas of the Crown 10 ff.

[19.5] For an account of the events leading up to the enactment of the new code of laws under Fletcher, see Charter and Laws 188 ff.

[19.7] For the new code of laws enacted at this time, see Charter and Laws 188 ff.

[20] Charter and Laws 274.

[21] ibid. 138, 170.

[22] ibid. 267.

[23] Statutes at Large of Pennsylvania (Harrisburg, 1896) 6.

[24] Charter and Laws, 267.

[25] ibid. 542.

[26] Pa. Col. Recs. 527.

[27] Charles P. Keith, Chronicles of Pennsylvania (Philadelphia 1917) 290 ff.

[28] 1 Pa. Col. Recs. 494-5, 557.

[29] 1 Pa. Col. Recs. 596.

[30] 2 Statutes at Large 12.

[31] 2 Statutes at Large 11-12.

[32] 2 Statutes at Large 7.

[33] ibid. 178.

[34] ibid. 8, 173-4, 490.

[35] ibid. 99.

[36] ibid. 49.

[37] ibid. 50.

[38] ibid. 3-4

[39] ibid. 175.

[40] ibid. 172.

[41] ibid. 172.

[42] William Blackstone, 4 Commentaries on the Laws of England 182 ff.

[43] 2 Statutes at Large 182.

[44] ibid. 180

[45] ibid. 179.

[46] ibid. 186.

[47] 3 Statutes at Large 199.

[48] Keith, op. cit. 570-584.

[49] Leon Radzinowicz, 1 History of English Criminal Law (New York, 1948) 145.

[50] ibid. 631.

[51] ibid. 631.

[52] Blackstone, 4 Commentaries 362.

[53] 3 Statutes at Large 247.

[54] 6 Statutes at Large 328.

[55] 7 Statutes at Large 90.

[56] 8 Statutes at Large 183.

[57] 7 Statutes at Large 359.

[58] 7 Statutes at Large 91.

[59] Cf. Jules Zanger, “Crime and Punishment in Early Massachusetts,” 22 William and Mary Quarterly (Third Series) 471-477 for the gap between ostensible and actual punishments for crime in another jurisdiction.

[60] Fitzroy, op. cit., 254.

[61] Lawrence H. Gipson, “Crime and its Punishment in Provincial Pennsylvania”, 2 Pennsylvania History 13-14.

[62] Fitzroy, op. cit. 244-6.

[63] ibid. 256.

[64] Fitzroy, op. cit. 258-62; William H. Loyd, The Early Courts of Pennsylvania 56.

[65] Cf. William Nelson, The Americanization of the Common Law.

[66] 1 Acts and Resolves of the Province of Massachusetts Bay (Boston, 1869) 55-6.

[67] ibid. 56.

[68] ibid. 52.

[69] Thomas Hutchinson, 2 History of the Colony and Province of Massachusetts Bay (Cambridge 1936) 48.

[70] George W. Dalzell, Benefit of Clergy in America and Related Matters (Winston-Salem, 1955) 191.

[71] 1 Acts and Resolves 210.

[72] 1 Acts and Resolves 297.

[73] See E. W. Taylor, “The Witchcraft Episode” in A.B. Hut (ed.), 2 Commonwealth History of Massachusetts (New York, 1928).

[74] 1 Acts and Resolves 52, 210.

[75] Dalzell, op. cit. 175.

[76] 1 Acts and Resolves 171.

[77] 2 Acts and Resolves 838.

[78] 1 Acts and Resolves 674.

[79] Blackstone, 4 Commentaries 369 ff.

[80] 4 Acts and Resolves 488.

[81] 2 Acts and Resolves 5.

[82] 5 Acts and Resolves 43.

[83] 2 Acts and Resolves 479; 9 Geo. I, c. 22.

[84] 2 Acts and Resolves 545; 1 Geo. I, s. 2 c. 5.

[86] 2 Acts and Resolves 700; 3 Acts and Resolves 318.

[87] 1 Acts and Resolves 681; 2 Acts and Resolves 858, 296, 1071; 4 Acts and Resolves 415.

[88] Nelson, op. cit. 37 ff.

[90] Michael Stephen Hindus, Prison and Plantation: Crime, Justice and Authority in Massachusetts and South Carolina, 1767-1878 82 ff.

[90.5] 4 Acts and Resolves 622.

[91] A. E. McKinley, “Transition from Dutch to English Rule”, 6 American Historical Review 704 ff.

[92] 1 Colonial Laws of New York (Albany, 1894) xix.

[93] Herbert Alan Johnson, “The Advent of Common Law in Colonial New York”, in George Athan Billias (ed.) Law and Authority in Colonial History (Barre, 1965).

[94] Julius Goebel, Jr., “The Courts and the Law in Colonial New York” in Alexand C. Flick (ed.), 3 History of the State of New York (New York, 1933); Goebel, Law Enforcement in Colonial New York (New York, ) 14.

[95] Douglas Stuart Greenberg, “Persons of Evil Name and Fame”: Crime and Law Enforcement in the Colony of New York, 1691-1776 (Cornell Ph.D. Thesis, 1974) 135.

[96] Goebel, 3 History of the State of New York 33.

[97] 1 Colonial Laws 582, 657.

[98] See Kenneth Scott, Counterfeiting in Colonial New York (New York, 1953).

[99] 80 Harvard Law Review 1769-70.

[100] 4 Colonial Laws 953.

[101] Greenberg, op. cit. 370.

[102] ibid. 207 ff.

[102.5] For accounts of the loss of ideological vigor in these two colonies, see Frederick B. Tolles, Meeting House and Counting House (Chapel Hill, 1948) and John M. Murrin, Anglicizing an American Colony—the Transformation of Provincial Massachusetts (1966 Yale History Ph.D. Thesis).

[103] John Winthrop, in Edwin Powers, Crime and Punishment in Early Massachusetts 1620-1692 (Boston, 1966) 30.

[105] Cf. Murrin, op. cit.

[106] Stevens, op. cit., 77.

[106.5] Cf. Greenberg, op. cit. 207 ff.

[107] Tolles, op. cit. 231-2.

[108] See Nelson, op. cit. 36 ff., 116 ff., for an account of how Massachusetts law changed in this regard.

[110] Blackstone, 4 Commentaries 18.

[111] 5 Eliz., c. 20.

[112] 6 Geo. 2, c. 37, s. 6.

[113] Greenberg, op. cit. 42.

[114] Greenberg, op. cit. 115, 290-2.

[115] Radzinowicz, op. cit. 4.

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