The laws against criminal behavior set forth by our nation’s federal, state, and local governments have been tested, bent, and broken throughout America’s history. At no time in our short history, however, were those laws treated with less respect than in the Antibellum Period (1800-1860). The history of American criminal law dates back to the days of colonization, when settlers first left England for a better life in what would become known as the “Land of Opportunity.” A closer look at this topic will reveal the origins of America’s adopted legal system and the crimes and corresponding punishments found within it. Every civilization breeds members of its society who, for whatever reason, choose not to conform with the laws set forth by their government. The Beginning of criminal behavior in America and the popular crimes of this era will also be detailed. The 1830’s brought a wave of illegal activity, and new ideas and reform movements would become necessary if America was to continue her upward march towards advanced citizenship.
Laws pretaining to crime and punishment in this country arrived simultaneously with the first settlers from England. Colonists automatically received the same rights and privileges of English citizens, and the laws of England at that time applied to them as well(not all laws and regulations, however, were applicable to the colonies because of their elementary economy and small population). The adherence to English common law was monitered by the British beginning in 1675 with the introduction of the Privy Council. This group oversaw colonial legislation to guarrantee that it mirrored the common law. This group and many other decisions by the British helped to instill in the colonies a strong belief in the common law before and after Americans acquired their freedom.
Upon gaining their independence from Great Britain, the former colonies adopted the common law of crimes as their own. The two branches of the common law were substantive criminal law and the law of criminal procedure. The former defines criminal conduct, specifies what the state must prove, prescribes punishments, and defines defenses to criminal liability. The law of criminal procedure, on the other hand, diagrams the correct process in which to conduct criminal cases, including presenting the accused their rights and stating governmental limitations.1The next two centuries brought about many changes and alterations to this accepted form of law. Lawmakers began the eighteenth century by informing the general public of what acts were both required and illegal by producing them in written form. During that time definitions of crimes were changed to widen the scope of crimes, which often resulted in lesser punishments. Hundreds of new laws were added during this time that were not included in common law.
By the 1800’s, however, the common law of crimes was becoming obsolete. Simply stated, the times had changed since the substantive and procedural laws were written, and most were not applicable in the young, ever-changing government of the colonies.2 As a result, many states inundated their legal systems with several reform movements, and it appeared common law no longer applied as a whole to our society. Only a quarter-century had passed by before half the states abolished the common law of crimes altogether.
The early nineteenth century was characterized by the vast increases in population statistics, especially in the urban areas of New York City, Boston, and Philadelphia. This increase in population, however, would spawn a rise in reported crimes. The general assumption was that our rebuilt legal system, in conjuction with the various police institutions, was capable of handling such an increase in crime. This assumption would prove to be a costly one. This explosion of new residents in cities posed three major problems for urban law enforcement agencies. First, it was indirectly responsible for the extreme geographic growth of these cities. New buildings were being erected constantly for commerce and housing purposes to provide adequate accomodation. The resulting strain of criminal activity inevitably became too heavy a burden for the existing police forces to bear.3 Another problem that arose was advanced urbanization in the major cities of New England. At this juncture, tastes and preferences of the upper echelon of the class system was evolving. The upper class now prefered to reside in the more spacious areas located just outside of town. This forced their lower-class counterparts to relocate to the confines of the inner city, where the rent was affordable. Thus, these “ghettos” were popular sites for petty street crimes. A final dilemma was presented when the pressure of urbanization brought thousands of strangers together from completely different backgrounds. Irish Catholics, Germans, Scandinavians, Italians, Africans, and Jews were all thrown into melting pots, such as New York City and Boston, “where they lived cheek-by jowl.”4
Three major criminal activities of these days could be classified into street crime, theft (or larceny), and illegal enterprise. This triumverate of the underworld was not new to the crime beat, but it proved to be even more problematic as society expanded. Street crime, as its name implies, occurred in the major by-ways of towns and cities alike. Traffic had become a serious problem, as drivers and pedestrians were left to dispute the right-of-way in the chaos of the streets. Drunkeness was also one of the more common petty crimes of the era. David Johnson, author of American Law Enforcement: A History, explains in his book how many other factors made street crime one of the more popular forms of criminal behavior. He writes, “Social tensions rooted in religious, racial, and ethnic differences also contributed to street crime. Immigrants, blacks, and native white Americans lived together in a confusing hodgepodge of slum neighborhoods.”5 Much dissention separated a certain ethnicities from another. Notorious rivals icluded Irish Protestants and Irish Catholics; Germans and Poles; and Americans and Catholics. A general hatred was directed towards African Americans. These bitter opponents often were the instigators of riots and gang warfare.6
Theft was also a popular crime in the ever-growing urban areas. Stealing from downtown business offices and upper-class homes outside of town were favorites among petty thieves. These perpetrators were usually juveniles or adults who were in search of currency. When homes and offices were hit with robberies, the financial losses were typically small. Material household items such as brooms or the family wash were popular items for theft. Harldly ever did these thieves commit these crimes with the intent to keep the stolen items for their own. Instead, they would quickly liquify the items into cash through anyone willing to purchase them. The local merchants were always safe partners for such an enterprise, making the risky venture worthwhile. This “profession” offered several scandalous positions such as pickpockets, who would master one of many techniques for lifting another man’s wallet, pocketwatch, or anything else of value. In the South, stealing slaves from other owners became a source of contraversy. A slave was considered no different than any other piece of property, and theft charges were frequently brought to court. In 1846, for example, the Supreme Court of Georgia upheld Robinson v. State of Georgia, a case in which a Mr. Luke Robinson had been convicted in a Baldwin County court of stealing a slave at a sheriff’s sale.7 Bank robbers were another brand of professional thieves. Although the idea of robbing banks did not appeal fully until after the Civil War, it was a way to acquire large amounts of currency in one job. Later, new security concepts and innovations would discourage such an endeavor.8
Gamblers and prostitutes soon became frontrunners in a practice that was given the title of illegal enterprise. Morally loose professions of this nature were the result of a increased demand for expensive recreation were generated by the newfound fortunes being made in booming economic times. These sources of entertainment nested in the inner cities, where a male-dominated society sought some sort of relief and adventure from the stresful hours of daily business. The natural enchantment of high profits made gambling an attractive form of recreation. Card games were a fixture in the early days of primitive casinos and saloons. Brothels also flooded the scene, as many single women realizing their relatively small opportunities for employment turned to an occupation in which a more indecent (but extremely profitable) wage could be earned. There were over 2,000 brothels in Boston alone by 1817.9 This business, however, was a rather difficult one to manage, for customers were constantly demanding new faces, and the average career for these women was a mere four years. Unlawful activities of business such as these were just the beginning of an era of defiance that, along with the growing statistics of street crime and theft, would call for serious action in the way of police reform. This period would trigger of series of upgrades and improvements in American law enforcement.
Many factors played key roles in the changes in law enforcement that would be heavily discussed in the 1830’s, although many of them would not go into effect until the 1840’s and 1850’s. The outmatched and outnumbered local police force was obviously the most apparent reason for these changes, but other immanent problems existed just beneath the surface. Nativism, racism, and politics were three main headaches that haunted society, and addressing each one had become a priority. No other period in American history contained a higher frequency of riots, and these underlying issues were largely responsible.10 One accepted hatred that arose was against those men and women born on foreign soil, an prejudice known as Nativism. Irish Catholics were immediately considered outcasts, mainly because their religious differences were not understood. This question mark brought doubts as to their loyalty and patriotism to America, and the Native Americans were not about to give up their newfound freedoms and institutions for those that they believed did not belong here. Most of their discrimination techniques were not of the violent sort, although this bias was the catalyst behind a few historical riots that included the 1834 burning of a Boston convent and the 1844 Philadelphia riots. Race was also a major line of discrimnation, an injustice that would continue plague the nation for another century. The majority of Blacks were contained in the South, condemned to a life of slavery. A small population, however, resided in the Northern cities of New York and Cincinnati as well. Their lives were at risk if they dared to walk down the same street as a disapproving, armed white man. A handful of race riots erupted in Philadelphia between 1829 and 1850 that even called for military assistance.
Politics provided another battleground for opposing ethnic groups to lock horns. The state of political parties was not yet stable, and district politicians faced a dilemma when the majority of their voters were of one descent and held strong views on certain issues. It was therefore in their best interest, assuming their interests included re-election, to support the positions of their constituents. By 1845, there were 17 districts or wards, each one dominated by its own unique ethnic background.11 Political parades became a common campaign ploy for those seeking office and a favorite venue for riots and violence. Trouble often brewed between rival groups during elections, where the ballot box transformed into a treasure chest over which the competing sides would fight for “ownership.” At the time, Democrats generally supported the idea of immigants and were against abolition and temperance (the regulation of alcohol in society). Their counterparts, the Whigs, backed the nativists and the abolitionists, and were protemperance.12 These were three of the main social issues of separation. As one can easily infer, these clans took advantage of every opportunity to demonstrate their hatred for each other.
An attractive idea for a more effective system of law enforcement was derived from England in similar fashion as the common law system had been fifty years earlier. Citizens of London felt the need for reform movements as early as the 1920’s. While America had yet to experience its major growing pains, London was now feeling the effects of mass urbanization that awaited American cities in the years to come. A series of violent riots led Parliament to pass the Metropolitan Police Act of 1829, a concept introduced by Sir Robert Peel. Peel lobbied this piece of legislation on the basis that every community should be granted their own police force. The years that followed have become know as the Peelian Era, during which he made several other contributions to the improvement of law enforcement.13 Parliament would later pass the Obligatory Act of 1856, which created police units in every English county. Soon, America’s major Northeastern cities would attempt to emulate this prototype of organized law enforcement.
A massive effort to establish a similar police force in America was initiated by the mid-1830’s. Those in favor of the movement, however, expressed a wide variety of reasons for supporting police reorganization. Their concerns included the need to properly police trouble-making groups (namely the Irish), and a longing for restored order to the streets, which had quickly become synonomous with disorder.
Boston was the first New England city to institute a revamped police force in 1838, but New York would soon follow with a much larger version that would overshadow Boston’s earlier efforts. Discussion of crime improvement methods began to circulate throughout the communities in the mid-1830’s, and in 1836 the mayor of New York City sent a tenative plan to the Common Council. Claiming that it reeked of republicanism (which, in theory, took power out of the people’s hands and placed it in the government’s possession), the Council rejected the proposal. This volatile issue would remain dormant for another five years until 1841, when a particular murder case would spur its resurrection. The body of one Mary Cecilia Rogers was found in the Hudson River on July 28, three days after she had been reported missing. The local press had a field day with the horrific nature of the case, especially after the authorities of that jurisdiction refused to conduct an investigation without the promise of a considerable reward.14 Several provacative articles soon were released, calling for drastic reform measures. Politicians hashed out the issue once again until the Democrats gained enough power in 1844 to establish a concrete preventive police force for New York City.
New York’s version was influenced heavily by London’s recent blueprint in reform, but it also contained its own unique trademarks. Lawmakers in New York were ahead of their English counterparts in developing the concept of forming separate patrol districts for each ward or county. This philosophy would lead Parliament to pass the aforementioned Obligatory Act of 1856. The night watchman was eliminated and replaced by “day and night police” in 1844. Polititians also decided the process by which men were selected to serve as officers. This intitial method of selection, however, would start a trend of police corruption that still exists in some forms today. This process began with the mayoral appointment of policemen from a list compiled by the aldermen of each ward. The aldermen, who were elected officials, hand-picked these members of their community without considering their qualifications. Instead, they used this opportunity to reward their friends and supporters who kept them in office.15 This unwritten quid pro quo agreement was one of many contraversies that arose from the newly implemented police system in New York.
Other major cities would soon draw up their own plans for an organized police. Citizens of New Orleans and Cincinnati followed suit by building their own respective police departments in 1852. Bostonians, having hurriedly assembled their new police system the late 1830’s in response to three major riots in four years, scrapped their old, uneffective force for a newer one in 1854 that resembled the New York model.16 Philadelphia, labeled as America’s most riotous city at that time, was relatively late in movement because its entire local government had to be renovated before it was able to pass similar legislation in 1854. Major police action did not find its way to most rural areas for some time, for the major problems that brought about these changes in social reform- urbanization, rioting, and a crime rate increase- obviously did not apply to the quiet country towns. As is the case with any major change, a period of adjustment follows as those affected by the change become accustomed to it. Often contraversies and sensitive issues arise from those groups who disagree with the by-products of the change, and the radical movements to create an effective brand of American law enforcement were no exception. Two issues in particular, unforming the police and later equipping them with firearms,
soon brought concerns from both citizens and newly-appointed officers of the law. Both sides immediately disapproved of New York’s introduction of the first police uniforms in 1853. Theoretically, it was believed that the blue uniforms would serve as a deterrent for those who would otherwise commit a crime. It also improved a policeman’s visibility for victims of a crime who needed assistance. This advantage, however, would prove to be a double-edged sword. Many officers were opposed to the new dress code, mainly because it allowed criminals to flee the scene of a crime as soon as they spotted an officer. Patrolmen complained that this adversely effected their ability to do their jobs. Many citizens protested the issuance of uniforms as well. They resented the militarization of the police force, claiming that it would strip from them their Constitutional rights.17 After enduring a few more years of protests and debate, the uniform issue was generally accepted. Boston and Philadephia soon would adopt similar codes in 1858 and 1860, respectively. Arming the police proved to be another sensitive issue, but not as contraversial as one might imagine. Certain questions regarding the obvious danger this decision presented demanded attention from the local authorities, but surprisingly little argument was put forth by those with conflicting opinions. An explanation can be found in the fact that society generally possessed a firm belief in the Second Amendment to the Constitution, which grants the right to bear arms. It should also be noted that the carrying of pocket revolvers by policemen had already become an accepted practice long before it was made official. Rioting and public disorder by rival firemen and youthful gangs, such as the Bowery B’hoys, the Plug Uglies, and the Dead Rabbits18 (of New York City infamy), had become much more frequent in the 1840’s. Guns and muskets were now the weapon of choice. Patrolmen were orignally only issued a nightstick, but they soon found it necessary to carry added protection. Another decade would pass before this would finally become legalized, and by then the population had developed a healthy respect for an officer with a gun. These drastic measures taken by the local authorities to prevent crime provide evidence that an obvious crime increase had occurred recently. Although some historians disagree, a closer look at crime during the period in question will show that the previously discussed reform movements definitely were taken out of necessity. In the absence of an official rate of crimes committed between 1830 and 1860 (the majority of these were not recorded, leaving us without accurate statistics), historians have sought to determine the direction the rate was fluctuating and why. Today, the U.S. Department of Justice issues important statistics related to the national crime rate (for instance, an estimated 2,014,400 crimes were committed in the U.S. in
2001, approximately 1,181,300 of these being reported)19, but no such statistics were preserved in the mid-nineteenth century. It would seem reasonable to believe that crime had become more popular, for historical reports of massive rioting and public disorder lead us to that conclusion. The effects of urbanization have already shown that the influx of various immigrants, races, and ethnic groups living in the tightest of quarters caused dissention and hatred. These unruly gangs and clans required serious attention from an undersized police team of patrolmen, night watchmen, and constables whowere not equipped for an uprising of such magnitude. Clearly, groundbreaking steps in law enforcement had to be taken with the goal of preventing crime. Historians with contrasting opinions question the necessity of these giant leaps in law enforcement. They do not attempt to dispute the evidence of historical riots that occurred during those years; instead, they attack the argument from another side. They believe the correct answer lies in the concept of crime categorization. Occording to
advocates of this way of thinking, crimes can be sorted into two main categories: “real” criminal activity, and “public order” offenses.20 As one might imagine, more serious crimes such as murder and other crimes of violence are considered “real” crimes, and the latter category is represented by those citizens guilty of disorderly conduct violations such as drunkeness and prostitution. Their main claim rests on their belief that in the years leading up to these significant breakthroughs in American law enforcement, only “public order” offenses increased, while “real” crimes either stagnated or even decreased. Urban growth, they argue, actually had a “civilizing” effect on the overpopulating cities. They were forced to commune together in domestic and business settings alike. This theory re-emphasizes their position that the law enforcement in place at that time was sufficient enough to handle the drunks and prostitutes that roamed the streets. Ideally, this argument deserves consideration. Homicide rates may have decreased (even if ever so slightly), and crimes of this sort may have ceased to be a major concern. This is not, however, an ideal world. Any degree of illegal behavior is considered a real crime under our legal system. Police had no choice but to treat “disorderly conduct” as actual crimes, for violent protests and riots (that these historians conveniently fail to recognize) were representative of the times. If these major strides in reform had not been taken, city streets would have remained shattered and blood-stained. Without a respectable police force to contain the chaos, reform was the only viable option. Thus, a formidable system of law enforcement with an emphasis on crime prevention was born in America. 1. Charles W. Thomas and Donna M. Bishop, Criminal Law: Understanding Basic Principles (Beverly Hills: Sage Publications, 1987) , 27.
2.
Charles W. Thomas and Donna M. Bishop, Criminal Law: Understanding Basic Principles (Beverly Hills: Sage Publications, 1987) , 28.
3.
David R. Johnson, American Law Enforcement: A History (St. Louis: Forum Press, 1981) , 36.
4.
David R. Johnson, American Law Enforcement: A History (St. Louis: Forum Press, 1981) , 36.
5.
David R. Johnson, American Law Enforcement: A History (St. Louis: Forum Press, 1981) , 39.
6. David R. Johnson, American Law Enforcement: A History (St. Louis: Forum Press, 1981) , 40.
7.
Robinson v. State, 1 Kelly 563, 1 Ga. 563, 1846 WL 1213 (Ga. Nov Term 1846) (NO. 82).
8. David R. Johnson, American Law Enforcement: A History (St. Louis: Forum Press, 1981) , 44.
9.
Steven Mintz, Moralists and Modernizers: America’s Pre-Civil War Reformers (The Johns Hopkins University Press, 1995) , 67.
10. Roger Lane, “Urban Police and Crime in Nineteenth-Century America,” in Policing and Crime Control, ed. Eric H. Monkkonen of the University of California, Los Angeles, vol. 5, part 2 of Crime and Justice in American History (Munich: K.G. Saur Verlag GmbH & Co., 1992) , 444.
11. Roger Lane, “Urban Police and Crime in Nineteenth-Century America,” in Policing and Crime Control, ed. Eric H. Monkkonen of the University of California, Los Angeles, vol. 5, part 2 of Crime and Justice in American History (Munich: K.G. Saur Verlag GmbH & Co., 1992) , 630.
12. David R. Johnson, American Law Enforcement: A History (St. Louis: Forum Press, 1981) , 22.
13. Edward Eldephonso and Alan R. Coffey, Criminal Law: History, Philosophy, Enforcement (New York: Harper and Row Publishers, 1981) , 18.
14. David R. Johnson, American Law Enforcement: A History (St. Louis: Forum Press, 1981) , 26.
15. Edward Eldephonso and Alan R. Coffey, Criminal Law: History, Philosophy, Enforcement (New York: Harper and Row Publishers, 1981) , 18.
16. Roger Lane, “Urban Police and Crime in Nineteenth-Century America,” in Policing and Crime Control, ed. Eric H. Monkkonen of the University of California, Los Angeles, vol. 5, part 2 of Crime and Justice in American History (Munich: K.G. Saur Verlag GmbH & Co., 1992) , 445.
17. Roger Lane, “Urban Police and Crime in Nineteenth-Century America,” in Policing and Crime Control, ed. Eric H. Monkkonen of the University of California, Los Angeles, vol. 5, part 2 of Crime and Justice in American History (Munich: K.G. Saur Verlag GmbH & Co., 1992) , 448.
18. Steven Mintz, Moralists and Modernizers: America’s Pre-Civil War Reformers (The Johns Hopkins University Press, 1995) , 4.
19. U.S. Department of Justice, “Bureau of Justice Statistics: Four Measures of Serious Violent Crime,” October 28, 2002, U.S. Department of Justice (10 April 2003).
20. Roger Lane, “Urban Police and Crime in Nineteenth-Century America,” in Policing and Crime Control, ed. Eric H. Monkkonen of the University of California, Los Angeles, vol. 5, part 2 of Crime and Justice in American History (Munich: K.G. Saur Verlag GmbH & Co., 1992) , 464.