Legal Reform in Revolutionary America

Legal Reform in Revolutionary America (and the Early Republic)
HIST/PA/SOC 349
 

Changing Attitudes
Enlightenment – 18th Century – 1700s.
A renewed interest in ancient Greece – especially with math, science, philosophy, art, and music.
More reasoning – less on “God caused things to fall” and more on scientific explanations.
Began in Europe, but spread to the colonies. Declaration and Constitution highly representative of Enlightenment ideas.

Crime in Enlightenment
The Enlightenment also influenced the development of crimes, criminals, and punishment.
Thinkers looked for ways to not punish criminals per se, but to prevent crimes.
Preventing crimes focused on standardizing crimes and punishments.
Philosophers saw swift and certain punishment that was standardized for all and would prevent people from committing crimes.
If people knew the punishment before the crime, with no leeway, they would choose not to commit a crime.
Think about the Star Trek episode. This is a really good example of this theory. Now think…what could go wrong?
 

The American Revolution and LAw
Following the Declaration of Independence in 1776, some states initially maintained the same office holders, courts, and even laws that had operated during the colonial period
Consistency in courts was initially considered necessary to maintain a semblance of order
However, the same ideologies that motivated the American Revolution prompted significant changes to the criminal law during the war and during the early national period
 

Important Currents of Thought
Shift in religious thought
Religion increasingly focused on individual conversion experiences and repentance
Greater faith in human redemption
 

Enlightenment Ideology
Faith in human perfectibility
Belief in tabula rasa
Humans are not inherently good or evil
They are rational actors
Obsession with quantifying, ordering, and creating rational hierarchies of knowledge
Emphasized secular society
Crime and sin not the same

Discomfort with Common Law
Common law relied on precedent and judicial discretion rather than written legislation
Many reformers and political thinkers expressed dissatisfaction with the opaqueness of law under this system
Reformers also believed that high levels of judicial discretion were indicative of despotic systems
Montesquieu: law under a Republican Society had to be clear and followed to the letter
Move away from common law prosecutions at federal level
United States v. Hudson and Goodwin (1812) established that federal courts could not try crimes without a relevant law having been passed
 
 

Montesquieu
Wrote The Spirit of the Laws (1748)
Three basic types of government: despotic, monarchic, and republican
Harsh punishments were suited to despotic governments but not to republican governments
Punishments increased in inverse proportion to how much a state valued liberty

 
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Complaints against Judicial Discretion
“In despotic governments there are no laws; the judge himself is his own rule. There are laws in monarchies; and where these are explicit, the judge conforms to them; where they are otherwise, he endeavours to investigate their spirit. In republics, the very nature of the constitution requires the judges to follow the letter of the law; otherwise the law might be explained to the prejudice of every citizen, in cases where their honour, property, or life is concerned.” -Montesquieu
 

Cesare Beccaria
Italian nobleman
Wrote On Crimes and Punishments (1764)
Revised ideas about the relationship between law, punishment, and crime
“Man is a calculating animal”
Argued against the notion that law had to be severe to be effective

William Eden
English nobleman
Authored Principles of Penal Law (1771)
Punishments should be based in “natural justice” and “public utility”
If this were so, justice and mercy would go hand in hand
“In the promulgation of every new offense, let the lawgiver expose himself to feel what wretches feel; and let him not seem to bear hardest on those crimes, which, in his elevated station, he is least likely to commit.”
Did not argue for the elimination of the death penalty, but did argue for it to be used far more sparingly
Thomas Jefferson cited Eden more than any other thinker when it came to criminal law reform
 

Results of Reformist Impulses
Some Americans began arguing for the abolishment of the death penalty on grounds of humanitarianism and requirements of just governance
Benjamin Rush, future prison reform advocate, argued that the death penalty was contradictory to reason, against the law of God, and outside the political contract

William Paterson (NJ)

Results of Reformist Impulses
Many Americans began to argue for the elimination of the death penalty for minor crimes
Constitution of New Hampshire: “No wise legislature will affix the same punishment to crimes or theft, forgery, and the like, which they do to those of murder and treason.”
Law should seek to reform rather than “exterminate”
Many states reformed their penal codes to reflect this understanding of law
 

Things to think about
How did the Enlightenment change the way Americans thought about crime and punishment.
Philosophers questioned man’s ”original sin” which led them to think of other ways in which to prevent crime.
Americans began questioning the death penalty. Which lends us to believe that people believed in rehabilitation and that people could be influenced by good as opposed to a finite term of good vs. evil.