The Early Years of American Law

From the time of the American Revolution (1775–83) until the early part of the twentieth century, pieces of the American criminal justice system gradually came together to include courts, professional policing, and prisons at the federal and state levels. A criminal justice system is the collection of public agencies including the police, courts, and prison officials responsible for apprehending (catching and arresting), determining the guilt, and imposing the sentence of criminal offenders.

During the colonial period prior to the American Revolution (1775–83), no distinctive American legal system existed. Criminal codes, punishments, and courts varied from colony to colony. By the mid-1700s a reform movement was underway to create a more unified American legal system. The Revolution greatly sped up the reform process. The colonists' victory over Britain brought independence and a new justice system that provided both protection and rights for its citizens. The first several decades following the Revolution were an experimental period in criminal justice as court decisions and legislation formed the foundation for a modern criminal justice system.

Colonial freedom

By the 1750s the American colonists enjoyed the situation within which they found themselves. Distant from British rule, they had grown accustomed to a personal, political, and economic independence unheard of back in England for commoners. The colonies basically consisted of small agricultural settlements whose residents steadily converted woodlands to croplands. Plenty of land was at hand to claim and develop though much to the detriment (harm) of the existing American Indian populations who were shoved aside. Most families had enough land to satisfactorily support themselves, while in England as well as the rest of Europe, laborers and farmers had little freedom or property. Small farmers in European countries were largely tenant farmers, meaning they had to rent their land from wealthy landowners.

British officials were quite aware of the freedom and independence the colonists were growing accustomed to. They looked on it as a threat to traditional British social order they hoped to maintain in their worldwide colonial empire. Emigration (moving from one country to another) from Britain to the colonies was steadily increasing. Over a twenty-year period from 1754 to 1775 the colonial population grew from 1.5 to 2.5 million people, a 67 percent increase. British leaders feared the colonies were attracting so many common laborers away from England that soon wages for workers who stayed in England might have to rise. A trend of fewer workers earning higher wages could not only affect productivity but Britain's competitive edge in the world market.

Britain's push for greater control

British leaders decided something needed to be done to tighten their control over the colonists and discourage emigration. One way to accomplish these goals was to raise taxes in the colonies. This would make the colonies less attractive to possible emigrants and the existing colonists would be more obedient to the king.

Raising taxes would also help relieve Britain's war debt after successfully defeating the French in America in the costly French and Indian War (1756–63). The victory finally gave Britain more complete control over North America ending a struggle with France that had begun in the late 1600s. As soon as the war was over, Britain began imposing various taxes. These included the highly unpopular Stamp Act in March 1765. The act required Americans to purchase stamps to place on official documents such as deeds, mortgages, licenses of various sorts, and even publications such as newspapers. Colonial leaders rebelled and declared the act unjust. Colonial resistance forced Britain to repeal (cancel or undo) the act the following year, but the bitterness remained.

The colonists were just as determined to hang on to their unique independence including their evolving court systems. Most colonists did not, however, want a violent confrontation such as a war. They wanted to enjoy their independence while taking advantage of the trade benefits available as members of the British Empire—such as trade with other British colonies around the world.

While many colonists took pride in being part of the great British Empire, the Stamp Act had become a symbol of the British threat to their independence. Colonists feared the royal colonial governors and their top officials would become an elite social class as the common taxpayers became poor laborers and farmers just like in England. The elite would use the criminal justice system to maintain control over the commoners, who would be at the king's mercy in criminal court proceedings. It was possible the newfound personal liberties and property ownership of the colonists could be lost forever.

The colonists believed that if they resisted the new taxes, Britain would simply back off and leave them alone. British officials, however, firmly believed the colonists were no match for the highly trained British troops if any open rebellion should occur. After all, the British had just defeated France, another European power. Therefore they were determined to press for tightened control over the American colonies.

A new start

On the eve of the open hostilities with Britain that led to the American Revolutionary War, the colonists formed the Continental Congress that began meeting in Philadelphia in 1774. For the next fifteen years the Continental Congress laid the foundation for their nation including a newly emerging judicial system. Yet while war raged, the existing colonial legal systems mostly came to a halt. The top priority of the colonists was to win the war. One crime of major interest to the colonists, treason, was prosecuted throughout the war. Treason is the attempt to overthrow one's own government by assisting another country. Charges of treason were brought against those colonists remaining loyal (called loyalists) to Britain. The colonists applied a broad definition of treason to the loyalists' actions. If loyalists provided any support to the British, colonists assumed authority to seize their property. Though treason became more specifically defined in the U.S. Constitution, it remained the most serious of crimes in the new democratic republic.

The colonists fought a difficult, bloody battle for their freedom. With victory in 1783, the successful rebellion resulted in political independence and the creation of a new federal legal system. In addition, ratification of the U.S. Constitution in 1787 transformed the thirteen colonies into a confederation or union of thirteen states.

A new criminal court system

In observance of the Constitution, the nation's founders added a new federal criminal court system on top of the thirteen individual state judicial systems. The Constitution itself, however, said very little about criminal law. Criminal law is the set of rules that identifies behavior prohibited by a government to protect the health and safety of its citizens and the punishments for violations of these rules. Each state still had the most responsibility for crime and punishment in the United States, which has continued into the twenty-first century.

The Constitution called for a U.S. Supreme Court and gave Congress the authority to create other federal courts. The U.S. Congress, meeting in its first session in Philadelphia, passed the Judiciary Act in 1789 establishing the Supreme Court and various levels of federal courts, such as district and appellate (where district court decisions are appealed or reviewed) courts, and identified their jurisdictions (the geographic area over which a court has legal authority). The act also created the U.S. attorney, attorney general, and marshal offices.

Under authority of the new Constitution, Congress passed the Crimes Act of 1790. It was a general bill identifying seventeen crimes against the federal government. In addition to treason these federal crimes included murder within a federal installation such as a fort or on the high seas, forgery (the deceitful creation or altering) of federal documents, piracy, assault on a federal official, and perjury (intentionally making a false statement or lying during a court appearance while under oath) in a federal court. Criminal trials in federal courts were also to be before juries.

The Bill of Rights

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.

A change in America's way of life

Growth of criminal law through the nineteenth century was greatly influenced by major economic and social changes in the country. By the early nineteenth century, the nation's larger communities changed from farming to urban or city industrial centers. American capitalism (an economic system made up of businesses supported by monetary investments, or capital) was taking shape. This kind of production and sale of goods is largely free of government interference. The major transformation from farming to an industrial economy first began in the New England region in the 1780s immediately following the Revolution. The new economy slowly dominated parts of the East over the next twenty years.

With this economic change, society changed. In an agricultural, or farm-based, society, daily life had been guided by longstanding traditions centered around the community. The new industrial society was much more individualistic, often impersonal, and mobile with people constantly moving to where jobs were available. The change also brought a sharper growth of individual income or earnings, something not seen in colonial times.

With increased earnings came greater ownership of property. New laws were needed to protect against property crimes such as theft. From a criminal justice standpoint, the new industry-based society put pressure on government to create different laws and to change how criminals were punished.

Changes in criminal punishment

Due to the growth in population and the "cruel and unusual" punishment clause in the Bill of Rights' Eighth Amendment—death, torture, and public humiliation, all common in early colonial days—were gradually falling out of public favor through the 1700s. By the end of the eighteenth century many criminal justice reformers opposed the death penalty and other forms of physical punishment such as whippings and brandings. Reformers claimed these punishments were contrary (opposite) to the newly adopted Eighth Amendment that prohibited cruel and unusual punishment.

While many people believed these extreme forms of public punishment had been effective in small communities, their effectiveness declined as cities grew and became less personal. Hangings at the time of the Revolution were public spectacles drawing in some cases thousands of onlookers. Reformers argued such public violent deaths probably promoted bad behavior more than discouraged it—by exposing the public to violence. Reformers believed locking up criminals for long periods of time was more humane (caring) and effective as to prevent future crimes. At the time, however, the jails used to lock up convicts were small and primitive.

Growth of prisons

Not surprisingly, the Quakers in Pennsylvania, known for their humaneness, took an early lead in replacing incarceration (confinement in prison or jail) for execution. The 1776 Pennsylvania constitution included construction of buildings, "houses," to punish criminals. Though focused on putting the inmates to hard labor, they still maintained some degree of public humiliation by allowing the public at times to view the prisoners at work.

Philadelphia became the center for criminal reform in the nation in 1787 when the first prison reform organization was formed, the Philadelphia Society for Alleviating the Miseries of Public Prisons. The society supported treating a prisoner's problems (known as rehabilitation) over physical punishment. In 1790 Philadelphia opened a sixteen-cell house called the Walnut Street Jail. A jail warden assigned prisoners to one of four categories of offender. Prisoners entered solitary confinement supplied with a Bible to speed their rehabilitation.

Changes in punishment came in other states as well. In 1805 when the Massachusetts State Prison opened, the state eliminated whipping, branding, and use of the pillory (a wooden frame that has holes for heads and hands). A movement to build state prisons, or penitentiaries, grew through the 1820s and 1830s. This allowed more and more states to replace various forms of physical punishment with imprisonment in penitentiaries.

Opinions of the new American prison systems varied. French travelers Gustave de Beaumont (1802–1866) and Alexis de Tocqueville (1805–1859) favored the harsh system they observed. Others such as famous British novelist Charles Dickens (1812–1870) who visited the Philadelphia prison in the early 1840s found the experience horrifying.

While state prisons experimented with different kinds of incarceration, local and county jails remained more primitive. Many, particularly in rural areas, were poorly run and filthy.

Decrease in executions

Associated with the growth of state prisons was reducing the crimes calling for capital punishment (death penalty). In 1794 the Pennsylvania legislature passed a bill recognizing the difference between first-degree murder (a deliberate and planned act to kill) that received the death penalty, and second-degree murder (an unplanned or accidental killing) that called for imprisonment. It was the first law of its kind calling for different levels of punishment for different kinds of murder.

Other states followed in reducing the number of capital crimes. In 1835 New York became the first state to stop public executions and by 1841 the state reduced the death penalty to only three crimes: murder, treason, and some forms of arson. In 1846 Michigan was the first state to abolish the death penalty altogether. Wisconsin and Rhode Island soon followed.

Punishments were now performed in private, away from a public crowd, and new forms of punishment appeared. For example, one striking aspect about many prisons in the early nineteenth century was that strict silence among inmates was maintained. Prisoners were not allowed to speak. Those who visited the prisons, such as Beaumont and Tocqueville, found the total silence very eerie. Considered too stressful, by the 1850s the demand for silence was dropped by the prisons.

Two types of prisons

States had little money available to maintain the new prisons. Therefore, a general goal in the early 1800s was to make the new prisons economically self-sufficient by having inmates produce goods. This goal was not without controversy. Businesses considered the prison industries unfair competition. However, the prison industries were particularly useful during the American Civil War (1861–65) producing uniforms, shoes, and other clothing.

Two different prison systems arose at first. Most states followed a New York prison model called the Auburn plan. It was named after the Auburn Prison opened in 1821 as a maximum-security facility. Inmates were locked in separate cells at night but worked in groups during the day. Pennsylvania had another system in which inmates were placed in solitary confinement, or by themselves with little or no contact with anyone else, around the clock. Each cell had running water, a heater, and an individual exercise area. Not only was this type of prison more expensive, but many considered the isolation too cruel. The Pennsylvania plan did not allow inmates to work or make money for the prison, so the Auburn system was more widely used.

Punishment in the South

Prisons were also developing in the South. Arkansas established its state prison in 1839. Yet the South, which remained largely rural, continued to punish inmates with whipping and public shaming. Whipping was the main means of controlling slaves since placing them in jail or prison would keep them from working for their owners. After slavery ended in 1865, prison populations in the South became predominately black. While Northern prisons resembled factories, prisoners in the South were put to work in the fields. To some observers, the prisons looked much like plantations.

Probation and parole

Along with growth of prison systems new measures, such as probation and parole, were introduced. Probation is imposing a criminal sentence other than jail or prison time for persons convicted of less serious crimes. The convicted person would be under court supervision but otherwise free. The person might be restricted from travel or other daily activities and had to check in with a court-appointed official to evaluate his or her progress. Probation had its beginnings in Boston in the 1850s. The more common use of probation, to sentence less serious crimes committed by both adults and juveniles, did not arrive until around 1900.

Parole is a decision to release an inmate before the end of his or her sentence. It was first introduced in New York in 1876, but it would not become widely used until the 1930s when tough economic times cut funding for prisons.

Professional policing

Another major development in the criminal justice system in the early nineteenth century was the growth of professional police departments. Following the Revolutionary War many communities began electing constables and sheriffs. For several decades, however, many towns still relied on volunteer watchmen to patrol the streets. On the western frontier, policing was performed by the U.S. Army or federal marshals. Because of the still largely rural character of the nation immediately following the war, property and personal crime rates were low. Volunteer watchmen could serve the community needs. As the national economy changed and towns grew in the early nineteenth century, the public grew increasingly concerned over rising crime rates such as theft.

Despite the growth of state prison systems through the 1830s, crime rates continued to increase. Unruly or wild behavior increased and riots broke out in the 1830s and 1840s. Often violence was targeted at special social groups such as blacks and Catholics.

In 1829 Sir Robert Peel (1788–1850) created a London police force to address rising crime rates in England related to the growth of urban industrial or manufacturing areas. The force consisted of paid, full-time police complete with uniforms and strict discipline. This force, known as "bobbies" (derived from Peel's first name), became a model for policing in the United States.

The first U.S. city to establish a police force was naturally the most heavily populated: New York. The city faced growing slums, fighting over ethnic differences, and rising crime. The city replaced the mostly volunteer watchmen with a paid police force in 1844. Refusing to adopt uniforms for fear of a citizen backlash or negative reaction, the police wore copper badges on their chests. The badges led to the slang term "coppers," and the shorter "cops."

Other cities were feeling similar pressures. Fourteen people were killed in one anti-Catholic riot in Philadelphia in 1844. Philadelphia created a professional police force the following year. Other city police forces followed: New Orleans and Cincinnati in 1852; Boston in 1854; Chicago in 1855; and Baltimore in 1857. Like the London bobbies, the American departments adopted uniforms by the mid-nineteenth century and rules to enforce increased discipline. American police discipline still did not approach the level of the London police. The more rural areas of the young country continued to rely on volunteers. Groups organized to fight crime without the approval of the sheriff or county lawmen, known as vigilantes, were active in controlling crime in some areas

like San Francisco, before it formed a city police force in the 1850s.

Federal policing through the first half of the nineteenth century was conducted by U.S. marshals, whose primary concern was counterfeiting. It was estimated that one-third of the new U.S. currency between 1815 and 1860 was counterfeit or fake. Congress finally created the Secret Service agency under the secretary of treasury in 1865 to target counterfeiting and free the marshals to tackle other crimes.

Women and minorities were limited to a small role in the growth of professional policing. The first full-time paid policewoman was Alice Stebbins Wells in 1910 for the Los Angeles Police Department. Until then women were only allowed to work in jails, normally tending to female inmates, but also doing chores such as cooking. In addition, black Americans made up less than 3 percent of the urban police forces in 1900. They were usually assigned to patrol black communities.

Extending protection to black Americans

At the conclusion of the Revolution the northern states abolished slavery but in the South it remained a major part of the plantation economy. While many in the North sought to ban slavery, Southerners considered slaves as property, to be bought and sold. Slave masters could punish slaves as they saw fit; whipping was the most common form of punishment.

The threat of slavery expanding into new U.S. territories raised the issue of slavery to a new level. The U.S. Supreme Court in Dred Scott (1857) ruled that neither slaves nor freed blacks were entitled to U.S. citizenship or the protection citizenship provided under the criminal justice system. It was becoming clear that war was the only means to resolve this legal question.

Following the Union's victory in the Civil War, the states ratified the Thirteenth Amendment to the Constitution in 1865 making slavery a federal crime. In response, Southern states passed Black Codes in 1865 and 1866. The Black Codes were state laws denying basic freedoms to the newly freed slaves. Blacks still could not legally own property, sign contracts, testify against whites in court, or travel freely. In reaction, the Fourteenth Amendment was ratified by the states in 1868. The amendment made all people born in the United States citizens of both the United States and the state in which they were born. It gave black Americans the same legal protections as whites, such as the right to fair treatment in criminal justice procedures.

The Supreme Court, however, was slow in recognizing these Fourteenth Amendment rights. Minorities would not see the benefits of the Fourteenth Amendment until later in the twentieth century when courts became less concerned about protecting economic interests and more focused on civil liberties.

New demands on criminal justice

In the late nineteenth and early twentieth centuries crime rates rose as society experienced further changes. National economic depressions, large waves of immigrants from Asia and eastern and southern Europe, further growth of industrial centers, and violent labor outbreaks strained society and the criminal justice system. As local law enforcement had difficulty keeping up, states created state police forces. Through the 1920s almost thirty states created police organizations with some modeled after the military-like Pennsylvania State Police created in 1905.

America's First Policewoman

Through the 1800s as professional police departments grew around the nation, women held few positions. Mostly women served as prison workers taking care of female inmates. Then in 1909 social worker Alice Stebbins Wells (1873–1957) pressed Los Angeles to establish a new city ordinance allowing female policewomen. With the support of some influential people, the ordinance was quickly adopted and on September 12, 1910, Wells became the nation's first female policewoman with arrest powers. She received a badge, a key to telephone call boxes, a rule book, and a first aid book. Wells even designed and made some of her own tailored uniforms.

The Los Angeles Police Department (LAPD) assigned Wells to patrol public recreation places where women and children frequented, such as skating rinks, dance halls, and movie theaters. By October 1912 two other women were added to the staff. By 1916 sixteen other U.S. cities and several foreign countries had hired policewomen. By 1937 the LAPD employed thirty-nine policewomen and their duties expanded to criminal investigations in addition to patrol.

Pressing onward, Wells helped organize the International Policewoman's Association in 1915 and founded the Women's Peace Officers Association of California in 1928. In 1918 Wells was instrumental in the first college class being offered on the work of policewomen for new and prospective recruits in the UCLA Criminology Department. Wells retired in November 1940 after thirty years on the police force.

During this time Congress also added new federal crimes, including criminal activities occurring in two or more states. The White Slave Traffic Act (Mann Act) in 1910 banned the transportation of women across state lines for immoral purposes. The National Motor Vehicle Theft Act of 1919 made it a federal crime to take stolen vehicles across state lines. By far the largest impact on the existing criminal justice systems was passage of the Volstead Act of 1920 banning the sale of alcoholic beverages. Through the 1920s the act produced a major crime wave as Americans obtained alcohol however they could. Respect for law enforcement decreased, and prison populations dramatically increased.

Based on these pressures, the criminal justice system was ready for major improvements, which began in the 1930s and eventually led to the modern legal system of the twenty-first century.

For More Information

Books

American Correctional Association. The American Prison from the Beginning: A Pictorial History. College Park, MD: American Correctional Association, 1983.

Foner, Eric. The Story of American Freedom. New York: W. W. Norton, 1998.

Friedman, Lawrence M. Crime and Punishment in American History. New York: Basic Books, 1993.

Hirsch, Adam Jay. The Rise of the Penitentiary: Prisons and Punishment inEarly America. New Haven, CT: Yale University Press, 1992.

Huggins, Nathan I. Black Odyssey: The Afro-American Ordeal in Slavery. New York: Pantheon Books, 1977.

Web Sites

"LAPD Had the Nation's First Police Woman." Los Angeles Almanac.http://www.losangelesalmanac.com/topics/Crime/cr73b.htm (accessed on August 20, 2004).