19 Quoted in Edward H. Quoted in Edward H. Savage, Police Records Savage, Police Records and and Recollections Recollections (1873; reprinted., 1971), p. 42. (1873; reprinted., 1971), p. 42.

20 Wilbur R. Miller, Wilbur R. Miller, Cops and Bobbies Cops and Bobbies: Police Authority in New York and London, 1830-1870 Police Authority in New York and London, 1830-1870 (1977), p. 5. (1977), p. 5.

21 Walker, Walker, Popular Justice, Popular Justice, p. 57. p. 57.

22 David R. Johnson, David R. Johnson, American Law Enforcement: A History American Law Enforcement: A History (1981), p. 41. (1981), p. 41.

23 On this point, see Paul A. Gilje, "The Baltimore Riots of 1812 and the Breakdown of the Anglo-American Mob Tradition," On this point, see Paul A. Gilje, "The Baltimore Riots of 1812 and the Breakdown of the Anglo-American Mob Tradition," Journal of Social History Journal of Social History 13:547 (1980). 13:547 (1980).

24 Allen Steinberg, Allen Steinberg, The Transformation of Criminal The Transformation of Criminal Justice: Philadelphia Justice: Philadelphia , , 1800-1880 1800-1880 (1989), pp. 140-49. (1989), pp. 140-49.

25 Savage, Savage, Police Records, Police Records, pp 95-96. pp 95-96.

26 Johnson, Johnson, American Law Enforcement, American Law Enforcement, p. 27. p. 27.

27 David R. Johnson, David R. Johnson, Policing the Urban Underworld: The Impact of Crime on the Development of the American Police Policing the Urban Underworld: The Impact of Crime on the Development of the American Police, 1800-1887 (1979), pp. 96, 97.

28 Ibid., p. 94; see below, chapter 7. Ibid., p. 94; see below, chapter 7.

29 Miller, Miller, Cops and Bobbies, Cops and Bobbies, p. 43. p. 43.

30 Ibid. Ibid.

31 Savage, Savage, Police Records Police Records, p. 91.

32 Roger Lane, Roger Lane, Policing the City: Boston Policing the City: Boston, 1822-1885 1822-1885 (1967), pp. 60, 64, 66. (1967), pp. 60, 64, 66.

33 Lane, Lane, Policing the City Policing the City, p. 103, 187, 203.

34 Johnson, Johnson, Policing the Urban Underworld Policing the Urban Underworld, p. 139.

35 Miller, Miller, Cops and Bobbies, Cops and Bobbies, p. 51. p. 51.

36 The federal crimes law was 1 Stats. 112 (act of April 30, 1790). On the general subject, see Dwight F. Henderson, The federal crimes law was 1 Stats. 112 (act of April 30, 1790). On the general subject, see Dwight F. Henderson, Congress, Courts, and Criminals: The Development of Federal Criminal Law Congress, Courts, and Criminals: The Development of Federal Criminal Law, 1801-1829 (1985).

37 Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833). Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833).

38 See Robert A. Rutland, See Robert A. Rutland, The Birth of the Bill of Rights The Birth of the Bill of Rights, 1776-1791 (1962), p. 236.

39 Alexander J. Dallas, ed., Alexander J. Dallas, ed., Laws of the Commonwealth of Pennsylvania Laws of the Commonwealth of Pennsylvania, Vol. 2, 1781-90, p. 802. The punishment for these crimes was forfeiture of property ("all and singular the lands and tenements, goods and chattels") and imprisonment for up to ten years.

40 Dallas, Dallas, Laws Laws of of the Commonwealth of Pennsylvania the Commonwealth of Pennsylvania, Vol. 3, pp. 599-600.

41 Edwin R. Keedy, "History of the Pennsylvania Statute Creating Degrees of Murder," Edwin R. Keedy, "History of the Pennsylvania Statute Creating Degrees of Murder," Unversity of Pennsylvania Law Review 97:759 Unversity of Pennsylvania Law Review 97:759 (1949). (1949).

42 Rev. Laws N.Y. 1829, Vol. 2, p. 657. Rev. Laws N.Y. 1829, Vol. 2, p. 657.

43 Kathryn Preyer, "Crime, the Criminal Law and Reform in Post-Revolutionary Virginia," Kathryn Preyer, "Crime, the Criminal Law and Reform in Post-Revolutionary Virginia," Law and History Review Law and History Review 1:53, 58-59 (1983). In the same year, New Jersey struck a number of capital crimes off the books; see John E. O'Connor, "Legal Reform in the Early Republic: The New Jersey Experience," 1:53, 58-59 (1983). In the same year, New Jersey struck a number of capital crimes off the books; see John E. O'Connor, "Legal Reform in the Early Republic: The New Jersey Experience," American Journal of American Journal of Legal Legal History History 22:95, 100 (1978). See also, in general, Bradley Chapin, "Felony Law Reform in the Early Republic," 22:95, 100 (1978). See also, in general, Bradley Chapin, "Felony Law Reform in the Early Republic," Pennsylvania Magazine of History and Biography Pennsylvania Magazine of History and Biography 113:164 (1989). 113:164 (1989).

44 Quoted in Philip E. Mackey, Quoted in Philip E. Mackey, Hanging in the Balance: Hanging in the Balance: The Anti-Capital The Anti-Capital Punishment Movement in New York State Punishment Movement in New York State, 1776-1861 (1982), p. 155.

45 Quoted in Louis P. Masur, Quoted in Louis P. Masur, Rites of Rites of Execution: Capital Execution: Capital Punishment Punishment and and the Transformation of American Culture the Transformation of American Culture, 1776-1865 (1989), p. 65.

46 Livingston, Livingston, Complete Works, Complete Works, Vol. 1, p. 43. Livingston, a New Yorker transplanted to Louisiana, drafted for his new state a penal code in which the death penalty did not appear. Louisiana never adopted the code. Vol. 1, p. 43. Livingston, a New Yorker transplanted to Louisiana, drafted for his new state a penal code in which the death penalty did not appear. Louisiana never adopted the code.

47 Mackey, Mackey, Hanging in the Balance Hanging in the Balance, p. 127.

48 Rev. Stats. N.Y. 1829, Vol. 2, p. 656. Rev. Stats. N.Y. 1829, Vol. 2, p. 656.

49 Masur, Masur, Rites of Execution Rites of Execution, p. 157.

50 Michael S. Hindus, Michael S. Hindus, Prison and Plantation: Crime, Justice Prison and Plantation: Crime, Justice, and and Authority Authority in Ma.s.sachusetts in Ma.s.sachusetts and and South South Carolina, 1767-1878 Carolina, 1767-1878 (1980), p. 100. (1980), p. 100.

51 David J. Bodenhamer, David J. Bodenhamer, The Pursuit of The Pursuit of Justice: Justice: Crime Crime and and Law in Antebellum Law in Antebellum Indiana Indiana (1986), pp. 13-14. According to Bodenhamer, local courts and juries, even before this, refused to allow whipping in some instances; and in one case, where a local court in southwest Indiana ordered it, the citizens (so it was reported in the press) were "shocked by the shameful spectacle of a fellow citizen tied to a sign post and flogged like a dog." (1986), pp. 13-14. According to Bodenhamer, local courts and juries, even before this, refused to allow whipping in some instances; and in one case, where a local court in southwest Indiana ordered it, the citizens (so it was reported in the press) were "shocked by the shameful spectacle of a fellow citizen tied to a sign post and flogged like a dog."

52 See, in general, Myra C. Glenn, See, in general, Myra C. Glenn, Campaigns Against Campaigns Against Corporal Corporal Punishment Punishment: Prisoners, Sailors, Women, and Children in Prisoners, Sailors, Women, and Children in Antebellum Antebellum America America (1984). (1984).

53 Glenn, Glenn, Campaigns Campaigns, p. 117.

54 Ibid., pp. 144-45. Ibid., pp. 144-45.

55 Laws Del. 1820-1826, pp. 719, 720, 722. Laws Del. 1820-1826, pp. 719, 720, 722.

56 John D. Lawson, ed., John D. Lawson, ed., American State American State Trials, Trials, Vol. 2 (1914), p. 199. Vol. 2 (1914), p. 199.

57 Mackey, Mackey, Hanging in the Balance Hanging in the Balance, pp. 108-9.

58 Laws N.Y. 1835, chap. 258, p. 299. Laws N.Y. 1835, chap. 258, p. 299.

59 Masur, Masur, Rites of Executions Rites of Executions, p. 96.

60 Ibid., p. 100. Ibid., p. 100.

61 In one sense, executions did not go private at all. Later in the century, they were covered blow-by-blow by such organs as the In one sense, executions did not go private at all. Later in the century, they were covered blow-by-blow by such organs as the National Police Gazette National Police Gazette; and later still, by the "yellow journals." On capital punishment toward the end of the century, see chapter 7.

62 Livingston, Livingston, Complete Works Complete Works, p. 34.

63 See Adam J. Hirsch, "From Pillory to Penitentiary: The Rise of Penal Incarceration in Early Ma.s.sachusetts," See Adam J. Hirsch, "From Pillory to Penitentiary: The Rise of Penal Incarceration in Early Ma.s.sachusetts," Michigan Law Review Michigan Law Review 80:1179 (1982); and 80:1179 (1982); and The Rise of the Penitentiary: Prisons and Punishment in Early America The Rise of the Penitentiary: Prisons and Punishment in Early America (1992), especially chapter 3. (1992), especially chapter 3.

64 Code Va. 1849, t.i.tle 56, chap. 213, sec. 22, pp. 792-93. Code Va. 1849, t.i.tle 56, chap. 213, sec. 22, pp. 792-93.

65 David J. Rothman, David J. Rothman, The Discovery of the Asylum: Social Order and Disorder in the New Republic The Discovery of the Asylum: Social Order and Disorder in the New Republic (1971), p. 71. For an account of the English experience, which was parallel to the American experience, see the fine study by Michael Ignatieff, (1971), p. 71. For an account of the English experience, which was parallel to the American experience, see the fine study by Michael Ignatieff, A A Just Measure of Pain Just Measure of Pain: The Penitentiary in the Industrial Revolution The Penitentiary in the Industrial Revolution, 1750-1850 1750-1850 (1978). (1978).

66 Hirsch, Hirsch, The Rise of the Penitentiary The Rise of the Penitentiary, p. 66.

67 Hindus, Hindus, Prison and Plantation Prison and Plantation, p. 101; Ma.s.sachusetts had abolished whipping, branding, the stocks, and the pillory in 1804. Recidivists were tattooed in prison; but this pratice was eliminated in 1829.

68 Quoted in Zebulon R. Brockway, Quoted in Zebulon R. Brockway, Fifty Years of Prison Service: An Autobiography Fifty Years of Prison Service: An Autobiography (1912; reprint ed., 1969), pp. 24-25. (1912; reprint ed., 1969), pp. 24-25.

69 Walker, Walker, Popular Justice, Popular Justice, p. 49. p. 49.

70 Dallas, Dallas, Laws of the Commonwealth of Pennsylvania Laws of the Commonwealth of Pennsylvania, Vol. 2, 1781-1790, p. 802 (act of April 5, 1790); Bradley Chapin, "Felony Law Reform," at 178.

71 Dallas, Dallas, Laws of the Commonwealth of Pennsylvania, Laws of the Commonwealth of Pennsylvania, Vol. 3, p. 773. Vol. 3, p. 773.

72 Hindus, Hindus, Prison Prison and and Plantation Plantation, p. 163.

73 See Negley K. Teeters and John D. Shearer, See Negley K. Teeters and John D. Shearer, The Prison The Prison at at Philadelphia Philadelphia: Cherry Hill Cherry Hill (1957). (1957).

74 Ibid., pp. 76-79 Ibid., pp. 76-79 75 Gustave de Beaumont and Alexis de Tocqueville, Gustave de Beaumont and Alexis de Tocqueville, On the On the Penitentiary Penitentiary System in the United States and Its Application in France System in the United States and Its Application in France (1833; reprint ed., 1964), p. 65. (1833; reprint ed., 1964), p. 65.

76 Quoted in Francis C. Gray, Quoted in Francis C. Gray, Prison Discipline in Prison Discipline in America America (1847; reprint ed., 1973), p. 40. (1847; reprint ed., 1973), p. 40.

77 Report of William Crawford, Esq., on the Penitentiaries of the United Report of William Crawford, Esq., on the Penitentiaries of the United States States (1834; reprint ed., 1968), appendix, p. 2. This report was delivered to the House of Commons in England. (1834; reprint ed., 1968), appendix, p. 2. This report was delivered to the House of Commons in England.

78 Report of William Crawford, Report of William Crawford, appendix, p. 31. appendix, p. 31.

79 Ibid., appendix, p. 24. Ibid., appendix, p. 24.

80 Laws Ma.s.s. 1828, chap. 118, sec. 14, 15. Laws Ma.s.s. 1828, chap. 118, sec. 14, 15.

81 Report of William Crawford Report of William Crawford, appendix, p. 31.

82 Charles d.i.c.kens, Charles d.i.c.kens, American Notes American Notes (1842; Penguin ed., 1972), pp. 146, 148. (1842; Penguin ed., 1972), pp. 146, 148.

83 Beaumont and De Tocqueville, Beaumont and De Tocqueville, On the Penitentiary System, On the Penitentiary System, pp. 48-49. pp. 48-49.

84 Report Report of William Crawford, of William Crawford, appendix, p. 126. appendix, p. 126.

85 Edward L. Ayers, Edward L. Ayers, Vengeance and Justice: Vengeance and Justice: Crime and Crime and Punishment Punishment in the Nineteenth-Century American South in the Nineteenth-Century American South (1984), chap. 2. (1984), chap. 2.

86 Jack K. Williams, Jack K. Williams, Vogues in Villainy Vogues in Villainy (1959), p. 118; Acts So. Car., 1828, chap. 10, p. 22; 1831, chap. 21, p. 45. (1959), p. 118; Acts So. Car., 1828, chap. 10, p. 22; 1831, chap. 21, p. 45.

87 Hindus, Hindus, Prison and Plantation Prison and Plantation, p. 101.

88 On this point, see Ayers, On this point, see Ayers, Vengeance and Justice Vengeance and Justice, chap. 1.

89 Ibid., p. 73. Ibid., p. 73.

90 Hindus, Hindus, Prison and Plantation Prison and Plantation, p. 203.

91 Ibid., 169. Ibid., 169.

92 d.i.c.kens, d.i.c.kens, American Notes American Notes, p. 150.

CHAPTER 4. POWER AND ITS VICTIMS.

1 See Arthur Zilversmit, See Arthur Zilversmit, The First Emanc.i.p.ation: The Abolition of Slavery in the North The First Emanc.i.p.ation: The Abolition of Slavery in the North (1967); Vt. Const. 1777, chap. 1, sec. 244; Alexander Dallas, (1967); Vt. Const. 1777, chap. 1, sec. 244; Alexander Dallas, Laws of the Commonwealth of Pennsylvania, Laws of the Commonwealth of Pennsylvania, Vol. 2, pp. 838-43. Vol. 2, pp. 838-43.

2 George Fitzhugh, George Fitzhugh, Sociology for the South Sociology for the South 1854), pp. 46, 247-48. 1854), pp. 46, 247-48.

3 Drew Gilpin Faust, Drew Gilpin Faust, James Henry Hammond and the Old South James Henry Hammond and the Old South: A Design for Mastery A Design for Mastery (1982), pp. 73, 100. (1982), pp. 73, 100.

4 Frederick Law Olmsted, Frederick Law Olmsted, The Cotton The Cotton Kingdom Kingdom, Vol. 2 (1862) pp. 202-6.

5 Frances Anne Kemble, Frances Anne Kemble, Journal Journal of of a a Residence on a Georgian Plantation Residence on a Georgian Plantation in 1838-1839 (ed., John A. Scott, 1984), pp. 79-80. in 1838-1839 (ed., John A. Scott, 1984), pp. 79-80.

6 Public Acts of the Territory of Florida (1839), p. 225. Public Acts of the Territory of Florida (1839), p. 225.

7 Daniel J. Flanigan, Daniel J. Flanigan, The Criminal Law of Slavery and Freedom The Criminal Law of Slavery and Freedom, 1800-1868 1800-1868 (1987), pp. 74, 78; English's Dig. Stats. Ark. (1848), chap. 51, part 12, sec. 4, p. 379. (1987), pp. 74, 78; English's Dig. Stats. Ark. (1848), chap. 51, part 12, sec. 4, p. 379.

8 See Lawrence M. Friedman, See Lawrence M. Friedman, A History of American Law A History of American Law (2d ed., 1985), p. 222. (2d ed., 1985), p. 222.

9 Stats. Miss. 1840, pp. 170-72. Stats. Miss. 1840, pp. 170-72.

10 Philip J. Schwarz, Philip J. Schwarz, Twice Condemned: Slaves Twice Condemned: Slaves and and the the Criminal Laws of Virginia Criminal Laws of Virginia, 1705-1865 (1988), p. 13.

11 Flanigan, Flanigan, Crimina Criminal Law of Law of Slavery Slavery, pp. 86-88.

12 Michael S. Hindus, Michael S. Hindus, Prison Prison and and Plantation: Plantation: Crime Crime, Justice, and Justice, and Authority Authority in Ma.s.sachusetts in Ma.s.sachusetts and South Carolina and South Carolina, 1767-1878 (1980), pp. 139, 141-42.

13 Public Acts of the Terr. of Florida (1839), p. 224. Public Acts of the Terr. of Florida (1839), p. 224.

14 Hindus, Hindus, Prison and Plantation Prison and Plantation, p. 145. Imprisonment, according to Hindus, was "unpopular," because it deprived the owner of the slave's valuable services and "forced owners to endanger the health of their slaves in the notorious, overcrowded, and decrepit local jails."

15 Quoted in Edward L. Ayers, Quoted in Edward L. Ayers, Vengeance and Justice: Crime and Punishment in the Nineteenth-Century American South Vengeance and Justice: Crime and Punishment in the Nineteenth-Century American South (1984), p. 61. After 1818, according to Ayers, "only Louisiana consistently admitted slaves to its prison as an alternative to hanging." (1984), p. 61. After 1818, according to Ayers, "only Louisiana consistently admitted slaves to its prison as an alternative to hanging."

16 Schwarz, Schwarz, Twice Condemned Twice Condemned, pp. 209-10.

17 Ayers, Ayers, Vengeance and Justice, Vengeance and Justice, p. 136. p. 136.

18 Laws La. 1854, Act. No. 215, p. 149. Laws La. 1854, Act. No. 215, p. 149.

19 See, for instance, Acts and Resolutions of the General a.s.sembly of the State of South Carolina, 1830, p. 17. See, for instance, Acts and Resolutions of the General a.s.sembly of the State of South Carolina, 1830, p. 17.

20 Code of Va. 1849, t.i.tle 54, chap. 199, sec. 8, p. 754. Code of Va. 1849, t.i.tle 54, chap. 199, sec. 8, p. 754.

21 Hotchkiss's Ga. Stats. (1845), pp. 810, 811. Hotchkiss's Ga. Stats. (1845), pp. 810, 811.

22 Ibid., pp. 812-14. Ibid., pp. 812-14.

23 Stats. Miss. 1840, chap. xi, sec. 34, p. 163. Stats. Miss. 1840, chap. xi, sec. 34, p. 163.