The Early Years of American Law

The main purpose of federal criminal justice came with adoption of ten amendments to the Constitution, known as the Bill of Rights, in December 1791. The colonists were quite familiar with injustices often involving violation of an individual's civil liberties after living under the rule of a British king. Many had wanted the Constitution to speak out more forcefully to protect civil liberties, including criminal justice procedures. Otherwise, they feared they would lose freedoms to a strong national government in the same way they had lost some rights to a king. The founders agreed to strengthen the Constitution's safeguards against the loss of individual liberties and the result was the Bill of Rights.

Unlike the Constitution, much of the Bill of Rights addressed criminal justice issues, carrying forward the judicial reform sought before the war. The amendments called for fair legal procedures including fair trials. One way of accomplishing this was to greatly reduce discretion (range of power) of the judges. English law had combined king's mercy (discretion of the courts) with terror posed by the extremely harsh legal codes to control society and keep nobility and large landowners in charge.

American reformers called for something far different. The basic right to have a lawyer was written into the Bill of Rights. The Fourth Amendment called for the right of people to be safe from unreasonable searches and the seizure of property. Warrants for arrest and search had to be based on sufficient (enough) evidence to support an arrest, known as probable cause. The Fifth Amendment called for grand juries (a panel of citizens called together to determine if sufficient evidence exists to charge a person with a crime), stated that a person could not be tried for the same offense twice, known as double jeopardy, and that a person could not be made to testify against him or herself and had the right to remain silent in a trial. The Sixth Amendment called for speedy, public trials using impartial or fair juries. The Eighth Amendment banned excessive bails (money a defendant pays a court to be released while waiting for a trial) and cruel and unusual punishment.

Though sweeping in nature, the Bill of Rights applied only to the federal criminal justice system, not to state governments. The states were quite varied in their criminal justice procedures and safety measures. Virginia actually passed a set of fundamental rights in the Virginia Declaration of Rights of 1776 that served as a model for the Bill of Rights. Other states adopted many of the provisions of the Bill of Rights into their own constitutions after 1791.

One outcome of a republican (where a nation's citizens hold the supreme power) form of criminal justice at the federal level was that more reliance was placed on written laws rather than a judge's rulings. All federal crimes and punishment would be clearly spelled out. Federal courts could not prosecute defendants for actions not specifically written down in the federal penal codes.

In English common law some crimes, such as murder, were not specifically written. Everyone simply knew that murder and some other offenses were crimes. Judges were free to invent new common law crimes as time passed and new issues came before the court. The American reformers ended the unwritten common law system in the New World. The new federal courts always operated under a set of written laws. State criminal justice systems throughout the nineteenth and twentieth centuries, however, slowly moved away from common law practices.