6 - Penality and the Colonial Project: Crime, Punishment, and the Regulation of Morals in Early America

Summary

American criminal law was forged in the crucible of the colonial enterprise. Part British transplant and part American construction, the criminal law gave vivid and physical form to the effort to turn the Americas into an offshoot of Europe. Courtrooms and courthouses, gallows and whipping posts, jails and prisons all marked the American landscape with the material imprint of European institutions. In transporting British legal forms and traditions, colonial authorities aimed to maintain their own claims to civility on the borderlands of their cultural world while establishing their authority over natives and settlers. But no simple transfer of legal culture and practice was possible in the colonial world. Whatever the intentions of imperial officials or initial settlers, the process of colonization and the construction of unequal colonial societies produced legal systems that selectively appropriated and distorted tendencies unfolding in the metropolis itself.

During the seventeenth century, the crisis of the British state allowed disparate colonial legal systems and cultures to develop. The highly decentralized nature of British expansion, combined with the multiplicity of British legal traditions, led to a pronounced juridical diversity in early American law. Despite a shared acknowledgment of English sovereignty and the common law, British colonialism produced not a centralized system of criminal law but a variety of penal cultures. The religious conflicts that plagued the seventeenth-century English polity only exacerbated these developments as the founding of settler colonies during the post-Reformation struggles over religion and the pursuit of religious utopias charged the criminal law with particular sacred meanings.