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Lesson 2: History of the Courts
1600s and Early Colonial Period
As you know, the United States did not exist in the 1600s. Instead, the geographic region now known as the Eastern Seabord was a hodge podge of various colonies, developed and run by immigrants from England, France, Holland, the Netherlands, Portugal, and Spain. Those immigrants brought with them their cultural, religious, and legal heritages, and their legal systems within the colonies reflected those heritages. The laws of the colonies were byproducts of religious and cultural beliefs. Because no two colonies had the same traditions, no two colonies had the same system for dealing with crime, either. For example, the New England colonies, which largely were farming communities with strong religious foundations, tended to be very strict in their criminal laws. In New York and eastern New Jersey, criminal prosecutions were a bit more lenient. In Maryland, Virginia, and the Carolinas, there were almost no organization among the criminal courts, and prosecutions were quite arbitrary. The courts did not hear nearly as many cases as their northern neighbors, but their conviction rates were much higher.[1]
None of the colonies had what we would consider “courts” today, but they did hold public forums for determining the guilt of people accused of crimes. In the early days of colonial settlement, those forums were led by the religious leaders of the community, who handed down punishment based on the norms of the community. Professional judges were appointed over time, and eventually some uniformity of legal process evolved. By the time of the infamous Salem Witch Trials in the Massachusetts Bay Colony, criminal defendants could cross examine the prosecution’s witnesses and offer their own evidence. On the other hand, they had no right to have an attorney, and they could not ask anyone to testify on their behalf. Criminal defendants also often were subject to “trial by ordeal” and “touching tests,” methods of determining guilt or innocence based on divine intervention in human activity.
[1] Oliver, W. M., & Hilgenberg, J. F. (2006). A history of crime and criminal justice in America. Boston: Pearson/Allyn and Bacon.