24 Rev. Stats. Ky, 1852, chap. 28, Art. 3, sec. 3, p. 248. The jury could provide, in its discretion, for confinement to the penitentiary for a minimum of six or a maximum of ten years as an alternative to the death penalty. Rev. Stats. Ky, 1852, chap. 28, Art. 3, sec. 3, p. 248. The jury could provide, in its discretion, for confinement to the penitentiary for a minimum of six or a maximum of ten years as an alternative to the death penalty.

25 Code Va. 1849, t.i.t. 54, chap. 198, sec. 22, pp. 745-46. The offender "may be arrested, and carried before a justice, by any white person." Code Va. 1849, t.i.t. 54, chap. 198, sec. 22, pp. 745-46. The offender "may be arrested, and carried before a justice, by any white person."

26 Lumpkin, J., in Bryan v. Walton, 14 Ga. 185 (1853). Lumpkin, J., in Bryan v. Walton, 14 Ga. 185 (1853).

27 Rev. Code No. Car. 1855, chap. 107, pp. 576-77. Rev. Code No. Car. 1855, chap. 107, pp. 576-77.

28 Code Va. 1849, t.i.tle 54, chap. 200, sec. 8, p. 754. Code Va. 1849, t.i.tle 54, chap. 200, sec. 8, p. 754.

29 Rev. Code No. Car. 1854, chap. 107, sec. 63, sec. 75. Whites were not to gamble with slaves either, Laws. No. Car. 1851, chap. 186. Rev. Code No. Car. 1854, chap. 107, sec. 63, sec. 75. Whites were not to gamble with slaves either, Laws. No. Car. 1851, chap. 186.

30 Tenn. Code 1858, sec. 2726. Tenn. Code 1858, sec. 2726.

31 John Hope Franklin, John Hope Franklin, From Slavery to Freedom: A History of American Negroes From Slavery to Freedom: A History of American Negroes (1947), p. 213. (1947), p. 213.

32 Laws No. Car. 1774, chap. 31; Laws No. Car. 1791, chap. 4; the laws are quoted in Paul Finkelman, ed., Laws No. Car. 1774, chap. 31; Laws No. Car. 1791, chap. 4; the laws are quoted in Paul Finkelman, ed., The Law of Freedom and The Law of Freedom and Bondage: Bondage: A Casebook A Casebook (1986), pp. 200-201. (1986), pp. 200-201.

33 Ark. Const., 1836, Art. 4, sec. 25 (the same section provided that courts had to a.s.sign counsel to slaves in capital cases); Stats. Miss. 1840, chap. xi, sec. 28, p. 162. Ark. Const., 1836, Art. 4, sec. 25 (the same section provided that courts had to a.s.sign counsel to slaves in capital cases); Stats. Miss. 1840, chap. xi, sec. 28, p. 162.

34 See, for example, A. E. Keir Nash, "A More Equitable Past? Southern Supreme Courts and the Protection of the Antebellum Negro," See, for example, A. E. Keir Nash, "A More Equitable Past? Southern Supreme Courts and the Protection of the Antebellum Negro," North Carolina Law Review North Carolina Law Review 48:197 (1970); "Reason of Slavery: Understanding the Judicial Role in the Peculiar Inst.i.tution," 48:197 (1970); "Reason of Slavery: Understanding the Judicial Role in the Peculiar Inst.i.tution," Vanderbilt Vanderbilt Law Review 32:7 Law Review 32:7 (1979). (1979).

35 See, for example, Dig. Laws Miss. 1839, p. 749: "Any negro or mulatto, bond or free, shall be a good witness in pleas of the state [that is, criminal cases] for or against negroes or mulattoes, or in civil cases where free negroes or mulattoes shall alone be parties, and in no other cases whatsoever." See, for example, Dig. Laws Miss. 1839, p. 749: "Any negro or mulatto, bond or free, shall be a good witness in pleas of the state [that is, criminal cases] for or against negroes or mulattoes, or in civil cases where free negroes or mulattoes shall alone be parties, and in no other cases whatsoever."

36 Hindus, Hindus, Prison and Plantation Prison and Plantation, p. 134.

37 Ayers, Ayers, Vengeance and Justice, Vengeance and Justice, pp. 134-35. pp. 134-35.

38 State v. Tackett, 8 No. Car. 210 (1820). State v. Tackett, 8 No. Car. 210 (1820).

39 State v. Abram, a Slave, 10 Ala. 928 (1847). State v. Abram, a Slave, 10 Ala. 928 (1847).

40 Ibid., 930-31. The slave was tried under a statute that made it a capital crime for a slave to maim a white person "or bite off the lip, ear, or nose." The court felt that "the biting off a small piece of the ear, not destroying the body of it, was not mayhem"; that crime required a "disfigurement of the person." Ibid., 930-31. The slave was tried under a statute that made it a capital crime for a slave to maim a white person "or bite off the lip, ear, or nose." The court felt that "the biting off a small piece of the ear, not destroying the body of it, was not mayhem"; that crime required a "disfigurement of the person."

41 Flanigan, Flanigan, The Criminal Law of Slavery and Freedom The Criminal Law of Slavery and Freedom, p. 165.

42 Hindus, Hindus, Prison and Plantation Prison and Plantation, pp. 153-54.

43 George (a Slave) v. State, 37 Miss. 316 (1859). George (a Slave) v. State, 37 Miss. 316 (1859).

44 Laws. Miss. 1860, chap. 62, p. 102. The convicted defendant could receive up to a hundred lashes for five successive days, or be sentenced to death, as the jury might determine. Laws. Miss. 1860, chap. 62, p. 102. The convicted defendant could receive up to a hundred lashes for five successive days, or be sentenced to death, as the jury might determine.

45 Rev. Code Miss. 1857, p. 578. Rev. Code Miss. 1857, p. 578.

46 Eric Foner, Eric Foner, Reconstruction: America's Unfinished Revolution, Reconstruction: America's Unfinished Revolution, 1863-1877 (1988), p. 198. 1863-1877 (1988), p. 198.

47 Laws Miss. 1865, chap. 6. Laws Miss. 1865, chap. 6.

48 See, in particular, 16 U.S. Stats. 141, sec. 6 (act of May 31, 1870). See, in particular, 16 U.S. Stats. 141, sec. 6 (act of May 31, 1870).

49 See Daniel A. Novak, See Daniel A. Novak, The Wheel of Servitude: Black Forced Labor After Slavery The Wheel of Servitude: Black Forced Labor After Slavery (1978); William Cohen, "Negro Involuntary Servitude in the South, 1865-1940: A Preliminary a.n.a.lysis," (1978); William Cohen, "Negro Involuntary Servitude in the South, 1865-1940: A Preliminary a.n.a.lysis," Journal Journal of of Southern Southern History History, 42:31 (1976).

50 See, for example, Gen'l. Stats Ky. 1873, pp. 902-4. See, for example, Gen'l. Stats Ky. 1873, pp. 902-4.

51 Cohen, "Negro Involuntary Servitude," p. 56. Cohen, "Negro Involuntary Servitude," p. 56.

52 Charles A. Lofgren, Charles A. Lofgren, The Plessy Case: A The Plessy Case: A Legal-Historical Legal-Historical Interpretation Interpretation (1987), p. 18. (1987), p. 18.

53 The history of segregation is much disputed; any discussion has to start, however, with C. Vann Woodward's path-breaking book, The history of segregation is much disputed; any discussion has to start, however, with C. Vann Woodward's path-breaking book, The The Strange Career Strange Career of Jim of Jim Crow Crow (2d revised ed., 1966). (2d revised ed., 1966).

54 163 U.S. 537 (1896). In general, see Lofgren, 163 U.S. 537 (1896). In general, see Lofgren, The The Plessy Plessy Case Case.

55 Lofgren, Lofgren, The The Plessy Plessy Case Case, pp. 54-58.

56 Plessy v. Ferguson, 163 U.S. at 551-52. Plessy v. Ferguson, 163 U.S. at 551-52.

57 Ayers, Ayers, Vengeance Vengeance and Justice, and Justice, p. 176. p. 176.

58 For the colonial period, see Yasuhide Kawashima, For the colonial period, see Yasuhide Kawashima, Puritan Justice and the Indian: White Man's Law in Ma.s.sachusetts Puritan Justice and the Indian: White Man's Law in Ma.s.sachusetts, 1630-1763 1630-1763 (1986), chap. 6. (1986), chap. 6.

59 For example, a law of Kansas that made it a misdemeanor to "sell, barter, or give to any Indian intoxicating liquor" (Compiled Laws Kansas, 1862, pp. 601-2). For example, a law of Kansas that made it a misdemeanor to "sell, barter, or give to any Indian intoxicating liquor" (Compiled Laws Kansas, 1862, pp. 601-2).

60 See Carol Chomsky, "The United States-Dakota War Trials: A Study in Military Injustice," See Carol Chomsky, "The United States-Dakota War Trials: A Study in Military Injustice," Stanford Law Stanford Law Review Review 43:13 (1990). 43:13 (1990).

61 Ex parte Crow Dog, 109 U.S. 556 (1883). Ex parte Crow Dog, 109 U.S. 556 (1883).

62 Ibid., pp. 569, 571. Ibid., pp. 569, 571.

63 23 Stats. 362, 385, sec. 9 (act of March 3, 1885). 23 Stats. 362, 385, sec. 9 (act of March 3, 1885).

64 Shih-Shan Henry Tsai, Shih-Shan Henry Tsai, The Chinese Experience in America The Chinese Experience in America (1986), pp. 67-72. (1986), pp. 67-72.

65 See Lawrence M. Friedman and Robert V. Percival, See Lawrence M. Friedman and Robert V. Percival, The Roots of The Roots of Justice: Justice: Crime Crime and Punishment in Alameda County, California and Punishment in Alameda County, California, 1870-1910 1870-1910 (1981), p. 89. (1981), p. 89.

66 William J. Courtney, William J. Courtney, San Francisco's Anti-Chinese Ordinances, 1850-1900 San Francisco's Anti-Chinese Ordinances, 1850-1900 (1956), p. 56. (1956), p. 56.

67 Ho Ah Kow v. Nunan, 12 Fed. Cas. 252 (1879). See also Courtney, Ho Ah Kow v. Nunan, 12 Fed. Cas. 252 (1879). See also Courtney, San Francisco's Anti-Chinese Ordinances San Francisco's Anti-Chinese Ordinances, pp. 62-65.

68 118 U.S. 356 (1886). On the Chinese in California in general, see Robert F. Heizer and Alan J. Almquist, 118 U.S. 356 (1886). On the Chinese in California in general, see Robert F. Heizer and Alan J. Almquist, The Other Californians The Other Californians (1971), chap. 7. (1971), chap. 7.

69 For example, the item in the For example, the item in the National Police Gazette National Police Gazette for May 2, 1891 (headlined: "Girls in Chinese Dens"); the site was New York's Chinatown, the subject a raid on opium "joints" and "dives" on Mott and Pell streets; in Gene Smith and Jayne B. Smith, for May 2, 1891 (headlined: "Girls in Chinese Dens"); the site was New York's Chinatown, the subject a raid on opium "joints" and "dives" on Mott and Pell streets; in Gene Smith and Jayne B. Smith, The Police Gazette The Police Gazette (1972), p. 136. (1972), p. 136.

70 San Diego Union San Diego Union, Oct. 26, 1891, p. 5. Whether the Chinese were discriminated against in actual court proceedings is not so obvious. See, for example, John R. Wunder, "Law and the Chinese on the Southwest Frontier, 1850s-1902," Western Legal History Western Legal History 2:139 (1989). 2:139 (1989).

71 State v. Chandler, 2 Del. (2 Harr.) 553 (1837). In People v. Ruggles, 8 Johns. 290 (N.Y., 1811), however, Chancellor Kent stated that "we are a christian people, and the morality of the country is deeply ingrafted upon christianity." State v. Chandler, 2 Del. (2 Harr.) 553 (1837). In People v. Ruggles, 8 Johns. 290 (N.Y., 1811), however, Chancellor Kent stated that "we are a christian people, and the morality of the country is deeply ingrafted upon christianity."

72 See, in general, Edwin Brown Firmage and Richard Collin Mangrum, See, in general, Edwin Brown Firmage and Richard Collin Mangrum, Zion in the Courts: A Legal History of the Church of Jesus Christ of Latter-day Saints Zion in the Courts: A Legal History of the Church of Jesus Christ of Latter-day Saints, 1830-1900 1830-1900 (1988). (1988).

73 Reynolds v. United States, 98 U.S. 145 (1878). Reynolds v. United States, 98 U.S. 145 (1878).

74 Stephen Cresswell, Stephen Cresswell, Mormons, Cowboys, Moonshiners Mormons, Cowboys, Moonshiners, and Klansmen: Federal Law Enforcement in the South and West and Klansmen: Federal Law Enforcement in the South and West, 1870-1893 1870-1893 (1991), p. 100. (1991), p. 100.

75 24 Stats. 635 (act of March 3, 1887). The law made husbands and wives of people accused of polygamy competent witnesses when a spouse was prosecuted for this crime (sec. 1); it also directed the attorney general to inst.i.tute proceedings to seize church property (sec. 13); and it dissolved the incorporation of the Church itself (sec. 17). 24 Stats. 635 (act of March 3, 1887). The law made husbands and wives of people accused of polygamy competent witnesses when a spouse was prosecuted for this crime (sec. 1); it also directed the attorney general to inst.i.tute proceedings to seize church property (sec. 13); and it dissolved the incorporation of the Church itself (sec. 17).

76 Eric H. Monkkonen, Eric H. Monkkonen, The Dangerous Cla.s.s: The Dangerous Cla.s.s: Crime and Poverty in Columbus, Ohio Crime and Poverty in Columbus, Ohio, 1860-1885 1860-1885 (1975), p. 73. The term "dangerous cla.s.ses" was coined by Charles Loring Brace in his book (1975), p. 73. The term "dangerous cla.s.ses" was coined by Charles Loring Brace in his book The Dangerous Cla.s.ses of New York, The Dangerous Cla.s.ses of New York, published in 1872. published in 1872.

77 David J. Rothman, David J. Rothman, The Discovery of the Asylum: The Discovery of the Asylum: Social Order and Disorder in Social Order and Disorder in the the New Republic New Republic (1971), pp. 161-62. (1971), pp. 161-62.

78 There are many vivid descriptions of hobo life; see, for example, Josiah Flynt, There are many vivid descriptions of hobo life; see, for example, Josiah Flynt, Tramping with Tramps: Studies and Sketches of Vagabond Life Tramping with Tramps: Studies and Sketches of Vagabond Life (1899); Jack London, (1899); Jack London, The Road The Road (1907). (1907).

79 Christopher Tiedeman, Christopher Tiedeman, The Limitations The Limitations of of Police Power Police Power (1886), pp. 116-17. (1886), pp. 116-17.

80 Charles Sutton, Charles Sutton, The New York Tombs: Its Secrets and Its Mysteries The New York Tombs: Its Secrets and Its Mysteries (1874), pp. 81-82. (1874), pp. 81-82.

81 Eric H. Monkkonen, "A Disorderly People? Urban Order in the Nineteenth and Twentieth Centuries," Eric H. Monkkonen, "A Disorderly People? Urban Order in the Nineteenth and Twentieth Centuries," Journal Journal of of American History American History 68:539, 546 (981). 68:539, 546 (981).

82 Francis S. Philbrick, ed., Francis S. Philbrick, ed., The Laws of Indiana Territory, The Laws of Indiana Territory, 1801-1809 (1930), pp. 566-68. 1801-1809 (1930), pp. 566-68.

83 Laws Cal. 1855, chap. 62 (act of April 30, 1855). The act also applied to "lewd and dissolute persons who live in and about houses of ill fame," as well as "common prost.i.tutes and common drunkards." Laws Cal. 1855, chap. 62 (act of April 30, 1855). The act also applied to "lewd and dissolute persons who live in and about houses of ill fame," as well as "common prost.i.tutes and common drunkards."

84 David R. Johnson, David R. Johnson, Policing the Urban Underworld: The Impact of Crime on the Development of the American Police, 1860-1887 Policing the Urban Underworld: The Impact of Crime on the Development of the American Police, 1860-1887 (1979), p. 131. (1979), p. 131.

85 John C. Schneider, John C. Schneider, Detroit and the Problem of Order, 1830-1880 Detroit and the Problem of Order, 1830-1880 (1980), p. 110. (1980), p. 110.

86 Sidney L. Harring, Sidney L. Harring, Policing a Cla.s.s Society: The Experience of American Cities Policing a Cla.s.s Society: The Experience of American Cities, 1865-1915 1865-1915 (1983), pp. 119-20. (1983), pp. 119-20.

87 Helen Campbell, Thomas W. Knox, and Thomas Bymes, Helen Campbell, Thomas W. Knox, and Thomas Bymes, Darkness and Daylight; Darkness and Daylight; or Lights and Shadows of New York Life or Lights and Shadows of New York Life (1896), pp. 512-13. (1896), pp. 512-13.

88 On the background of this case, and for excerpts from it, see Stephen B. Presser and Jamil S. Zainaldin, On the background of this case, and for excerpts from it, see Stephen B. Presser and Jamil S. Zainaldin, Law and Jurisprudence in American History, Cases and Materials Law and Jurisprudence in American History, Cases and Materials (2d ed., 1989), pp. 600-619. (2d ed., 1989), pp. 600-619.

89 Commonwealth v. Hunt, 45 Ma.s.s. (4 Metc.) 111 (1842). Commonwealth v. Hunt, 45 Ma.s.s. (4 Metc.) 111 (1842).

A conspiracy, according to Shaw, meant getting together with others either to do something illegal, or to use "criminal or unlawful means" to do something not illegal in itself (ibid., at 123). It followed, for Shaw, that a labor a.s.sociation was not a criminal conspiracy unless it used unlawful means; merely adopting "measures that may have a tendency to impoverish another" was not criminal or unlawful.

90 Laws Ill. 1893, p. 98. Laws Ill. 1893, p. 98.

91 For example, Laws Minn. 1895, chap. 174. For example, Laws Minn. 1895, chap. 174.

92 William E. Forbath, William E. Forbath, Law and the Shaping of the American Labor Movement Law and the Shaping of the American Labor Movement (1991), p. 61. (1991), p. 61.

93 Felix Frankfurther and Nathan Greene, Felix Frankfurther and Nathan Greene, The Labor Injunction The Labor Injunction (1930), p. 21. (1930), p. 21.

94 In re Debs, 158 U.S. 564 (1895). In re Debs, 158 U.S. 564 (1895).

CHAPTER 5. SETTING THE PRICE: CRIMINAL JUSTICE AND THE ECONOMY.

1 William Francis Kuntz II, William Francis Kuntz II, Criminal Sentencing in Three Nineteenth Criminal Sentencing in Three Nineteenth-Century Cities (1988), pp. 114, 129, 155. In New York, robbery (not as common a charge in Boston or Philadelphia) accounted for another 28 percent of the cases in 1830. (1988), pp. 114, 129, 155. In New York, robbery (not as common a charge in Boston or Philadelphia) accounted for another 28 percent of the cases in 1830.

2 The definition is drawn from Stats. N.H. 1815, p. 317, but is quite typical. The definition is drawn from Stats. N.H. 1815, p. 317, but is quite typical.

3 State v. Henry, 31 N.C. (9 Ired.) 463 (1849). State v. Henry, 31 N.C. (9 Ired.) 463 (1849).

4 State v. Willis, 52 N.C. (7 Jones) 190 (1859). State v. Willis, 52 N.C. (7 Jones) 190 (1859).

5 Rev. Stats. Ill. 1845, p. 161. Rev. Stats. Ill. 1845, p. 161.

6 George Clark, ed., George Clark, ed., The Criminal Laws of Texas The Criminal Laws of Texas (1881), pp. 262-67. (1881), pp. 262-67.

7 1 Stats. 115 (act of April 30, 1790), chap. 9, sec. 14; 1 Stats. 573 (act of June 27, 1798). 1 Stats. 115 (act of April 30, 1790), chap. 9, sec. 14; 1 Stats. 573 (act of June 27, 1798).

8 Stats. N.H. 1815, p. 321. See also, for example, the elaborate statute on forgery in Stats. Ohio 1841, p. 233. Stats. N.H. 1815, p. 321. See also, for example, the elaborate statute on forgery in Stats. Ohio 1841, p. 233.

9 See Spencer L. Kimball, See Spencer L. Kimball, Insurance and Public Policy Insurance and Public Policy (1960), a case study of Wisconsin insurance regulation. (1960), a case study of Wisconsin insurance regulation.

10 Lawrence M. Friedman, "The Wisconsin Usury Laws: A Study in Legal and Social History," Lawrence M. Friedman, "The Wisconsin Usury Laws: A Study in Legal and Social History," Wisconsin Law Review Wisconsin Law Review 515 (1963). 515 (1963).

11 Ill. Rev. Stats. 1845, chap. 54, sec. 4, p. 295. Ill. Rev. Stats. 1845, chap. 54, sec. 4, p. 295.

12 4 Stats. 390, 392, sec. 4 (act of March 31, 1830). The fifth section of the statute voided any contract or "secret understanding" to buy land at a premium from someone who was to acquire the land at a public land sale. 4 Stats. 390, 392, sec. 4 (act of March 31, 1830). The fifth section of the statute voided any contract or "secret understanding" to buy land at a premium from someone who was to acquire the land at a public land sale.

13 Mo. Rev. Stats. 1845, chap. 147, sec. 20, p. 932. Mo. Rev. Stats. 1845, chap. 147, sec. 20, p. 932.

14 See Wilbur R. Miller, See Wilbur R. Miller, Revenuers and Moonshiners: Enforcing Federal Liquor Law in the Mountain South, 1865-1900 (1991) Revenuers and Moonshiners: Enforcing Federal Liquor Law in the Mountain South, 1865-1900 (1991); Stephen Cresswell, Mormons, Cowboys, Moonshiners Mormons, Cowboys, Moonshiners, and Klansmen: Federal Law Enforcement in the South and West and Klansmen: Federal Law Enforcement in the South and West, 1870-1893 1870-1893 (1991). (1991).

15 Code Tenn. 1858, secs. 1936, 1938, 1941; 3823, 4824; pp. 396-97, 864. Code Tenn. 1858, secs. 1936, 1938, 1941; 3823, 4824; pp. 396-97, 864.

16 R.I. Stats., 1882, chap. 129, p. 319. R.I. Stats., 1882, chap. 129, p. 319.

17 Rev. Code Md., 1878, Art. 72, secs. 93, 94, p. 805. Rev. Code Md., 1878, Art. 72, secs. 93, 94, p. 805.

18 Julius Goebel, Jr., and T. Raymond Naughton, Julius Goebel, Jr., and T. Raymond Naughton, Law Enforcement in Colonial New York: A Study in Criminal Procedure Law Enforcement in Colonial New York: A Study in Criminal Procedure (1944), pp. 131-32. (1944), pp. 131-32.

19 See, in general, Vertrees J. Wyckoff, See, in general, Vertrees J. Wyckoff, Tobacco Regulation in Colonial Maryland Tobacco Regulation in Colonial Maryland (1936). (1936).

20 Stats. at Large, Pa., 1682-1801, Vol. 4 (1897), p. 5 (act of March 20, 1725.) Stats. at Large, Pa., 1682-1801, Vol. 4 (1897), p. 5 (act of March 20, 1725.) 21 W. W. Hening, W. W. Hening, Statutes Statutes at Large at Large ... ... of Virginia of Virginia, Vol. 3, p. 180 (act of 1699).

22 Colonial Laws of New York Colonial Laws of New York, Vol. 1 (1894), p. 845 (law of May 19, 1715). Under the act, no "Negro, Indian or Maletto [sic] Slave" could sell Oysters in New York City "any time whatsoever."

23 Acts, General Court of Ma.s.s. Bay, 1675, p. 20. The General Court also prohibited the export of sheeps' wool (ibid., p. 19). Acts, General Court of Ma.s.s. Bay, 1675, p. 20. The General Court also prohibited the export of sheeps' wool (ibid., p. 19).

24 Rev. Code Miss. 1857, p. 584. Rev. Code Miss. 1857, p. 584.

25 Rev. Laws R.I., 1857, t.i.tle XVI, chap. 96, "Of Free and Common Oyster Fisheries," chap. 97, "Of Private and Several Oyster Fisheries." Rev. Laws R.I., 1857, t.i.tle XVI, chap. 96, "Of Free and Common Oyster Fisheries," chap. 97, "Of Private and Several Oyster Fisheries."

26 Stats. Minn. 1866, pp. 247-48. Stats. Minn. 1866, pp. 247-48.

27 Ibid., pp. 268-72. Ibid., pp. 268-72.