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Colonial Period - Differences From The English Criminal Justice System

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As the first settlements became established, one major difference from the English criminal justice system occurred with the colonial courts. Over several centuries England had developed many kinds of special courts to hear various types of cases. Given the small populations of the North American settlements, the colonial court systems and their proceedings were much simpler and more informal. At first some colonies had too few people to even hold grand juries (groups of citizens gathered to determine if enough evidence exists to have a trial). It would be years before the colonial criminal system became more formal and complicated like those of later years.

English Common Law

The legal system most familiar to seventeenth century colonists was English common law. English common law had been in use for several centuries in England before the New World's settlement. Common law provides a set of rules "commonly" used to solve problems. It is built on a history of judges' decisions rather than relying on lawmaking codes, or laws. In England the decisions that contributed to a common law tradition were written down and compiled annually in legal volumes available for judges to study. Common law developed a reputation for fairness in the courts as well as the protection of individual rights and private property.

Common law distinguished two basic types of crimes, the very serious called felonies and the less serious called misdemeanors. For the more serious crimes, evidence concerning the crime was first heard by a grand jury consisting of citizens from the community. The grand jury decided whether enough evidence existed. If so, an indictment (official charges) was issued charging the person with a crime and leading to a court trial before a regular jury. The judge and jury would then hear the arguments presented by both sides and offer a verdict.

Early English common law had some distinctive qualities. Unlike modern law, no district attorneys or public prosecutors brought court cases against the accused. It was up to the victim of the crime to bring the case to the court and pay for it. As a result, only people of means (having money or property) could pursue prosecutions. Under such a system, many citizens could not afford to press charges against someone who victimized them.


Colonial justice was different from the English legal system in other ways besides the organization of the courts. Early colonial courts had no "professionals," like judges and lawyers. Since the English legal system had been developing for centuries, it had highly trained judges and lawyers who were wealthy citizens of English society. They had no desire to travel and resettle in the New World, so the men running the colonial courts usually had no legal training and were merely respected persons within the community. Since they had no legal training, there was little difference between ordinary citizens of the community and those attempting to manage public law within the courts.

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