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Where Did NC Laws Come From? A Criminal Defense Attorney Explains the Incredible History Behind Today's Criminal Law


Have you ever wondered where North Carolina’s laws came from? The history is long, occasionally brutal, and deeply fascinating. Knowing it won’t turn you into a criminal defense attorney, but you will certainly have a deeper understanding of the origins of modern criminal law. Here’s how it all happened:

British Statutory and Common Law

As you will know, North Carolina was once a British Colony. As a result, the first Western-style laws we had were based on British law. It consisted of two components: statutory law and common law. Although we can trace statutes back to the dates when they were passed by the British Parliament, common law is much older. Common law consists of all the things we know to be right and wrong.

For example, as every criminal defense attorney and member of the public knows, theft is wrong. Common law wasn’t written up or codified as law, but the ways in which cases based on common law were handled was determined by legal precedent – the way in which courts handled similar matters in the past. To this day, legal precedents influence what we can expect when laws are enforced.

States Also Made Their Own Laws, Much as They do Today

During the British Colonial era, states also passed their own laws, and after independence, states maintained the laws that had previously governed them. At times, the punishments for breaking the law were extremely brutal, and reformers began to push for change. In North Carolina, criminal defense attorneys would have had their work cut out just ensuring that certain clients weren’t put to death.

Two hundred years ago, there were 28 felonies that were punishable by death. As you would expect, murder was one of these, but a woman who concealed the fact that she had given birth to a child suffered the same fate. Burglary, aiding escaped slaves or encouraging slaves to escape, and even homosexuality, were all seen as crimes warranting execution.

We might be shocked by this in today’s world, but this was still mild in comparison to the two hundred crimes for which you could get put to death in Britain!

Why Codification was Considered Essential to Reform

Because a great many laws were never written down in a way that explained how crime should be defined and what penalties should be exacted, the law was very open to interpretation. To rational thinkers, this seemed to leave the door wide open to unfairness. They argued that laws should be clearly defined and that penalties should be consistently applied. The only way to do this was codification of laws.

Benefit of Clergy, a Throwback to the Middle Ages

Apart from a lack of clarity leading to unfairness, so-called Benefit of Clergy made matters worse. The idea originated in medieval times when secular governments could not prosecute the clergy. In those days, you had to prove that you were a member of the clergy, but later, anyone who could read a passage from a Latin Bible could claim this amnesty.

By the time North Carolina adopted “Benefit of Clergy,” it was open to everyone, and instead of making you immune from punishment, it only ensured that you got a lighter penalty. Directly after independence, Virginia’s Thomas Jefferson tabled a bill that would have abolished the death penalty for all crimes except murder or treason. It also would have eliminated Benefit of Clergy altogether. However, the bill was not passed, and other states were the first to update their laws.

North Carolina was slower in its reform, and archaic punishments such as the pillory were still prescribed in some criminal cases. Mutilation was also a common punishment. For example, if you lied in court, you would have your ears cut off. Branding, ducking stools and flogging were commonly applied, and the richer and whiter you were, the less likely you would be to face them.

Ducking was often used to punish women who were “scolds,” and being drunk on a Sunday would see you in the stocks where, besides being very uncomfortable, passersby could mock you and pelt you with filth. Jail sentences were unheard of because there were no state prisons, so punishments consisted of the death penalty, torture or public humiliation.

1855 Reforms an Improvement

1855 legal reforms reduced the number of crimes punishable by death to twelve and were intended to result in the construction of a state prison in which criminals could be rehabilitated. But no prison was built, and further reform which would alter the law into a form that would resemble the legal code that a criminal defense attorney of today is familiar with would wait until after the Civil War.

When Criminal Punishment Was at its Bloodiest, few had Access to a Criminal Defense Attorney, But Times Have Changed

If you or someone close to you is facing criminal charges, you may feel that you are in a very bad position, and we understand your distress. However, we can be thankful for the fact that NC criminal law no longer prescribes public floggings, physical mutilation, and torture.

In addition, you are entitled to representation by a criminal defense attorney, and between codification of law and hundreds of years of legal precedent, it is possible for attorneys to predict outcomes with confidence. Not only that, but they can seek proven defense and penalty mitigation strategies that will limit or even eliminate the personal and legal consequences you face.

Although horse theft (formerly a death penalty offense) is less common today, and despite the fact that you won’t be hanged for the modern-day equivalent (Grand Theft Auto), having a good criminal defense attorney will still give you the edge, even when evidence is incontrovertible.

If you need legal advice from a criminal defense attorney, choose Welsh and Avery. Our experienced legal professionals will put their expertise to work on your behalf. Call us on (910) 405-8459 or contact us online.