57 See, in general, Miller, See, in general, Miller, Revenuers and Moonshiners; Revenuers and Moonshiners; and Cresswell, and Cresswell, Mormons Mormons.

58 Cresswell, Cresswell, Mormons Mormons, p. 158.

59 Brown, Brown, Strain of Violence Strain of Violence, pp. 59-60. 59-60.

60 Larry D. Ball Larry D. Ball, Desert Lawmen: The High Sheriffs of New Mexico and Arizona, 1846-1912 1846-1912 (1992), pp. 133-34. (1992), pp. 133-34.

61 Robert P. Ingalls, Robert P. Ingalls, Urban Vigilantes in the New South: Tampa, 1882-1936 Urban Vigilantes in the New South: Tampa, 1882-1936 (1988), pp. 2-3. (1988), pp. 2-3.

62 Ibid., p. 4. Ibid., p. 4.

63 Francis A. J. Ianni Francis A. J. Ianni, A Family Business: Kinship and Social Control in Organized Crime (1972), pp. 1-2. (1972), pp. 1-2.

64 Brown, Brown, Strain of Violence Strain of Violence, pp. 214-15.

65 National a.s.sociation for the Advancement of Colored People, National a.s.sociation for the Advancement of Colored People, Thirty Years of Lynching in the United States Thirty Years of Lynching in the United States, 1889-1918 1889-1918 (1919) (1919), pp. 7-8. Of the grand total of 3,224 victims, only 61 were women: 50 black women, 11 white (Ibid.). pp. 7-8. Of the grand total of 3,224 victims, only 61 were women: 50 black women, 11 white (Ibid.).

66 Kissimmee Valley Gazette Kissimmee Valley Gazette (Florida), April 28, 1899, reprinted in Ralph Ginzburg, ed., (Florida), April 28, 1899, reprinted in Ralph Ginzburg, ed., One Hundred Years of Lynching One Hundred Years of Lynching (1962), pp. 10-11. (1962), pp. 10-11.

67 Brown, Brown, Strain of Violence Strain of Violence, p. 218.

68 E. M. Beck, James L. Ma.s.sey, and Stewart E. Tolnay, "The Gallows, the Mob, and the Vote: Lethal Sanctioning of Blacks in North Carolina and Georgia, 1882 to 1930," E. M. Beck, James L. Ma.s.sey, and Stewart E. Tolnay, "The Gallows, the Mob, and the Vote: Lethal Sanctioning of Blacks in North Carolina and Georgia, 1882 to 1930," Law and Society Review Law and Society Review 23:317, 329 (1989). 23:317, 329 (1989).

69 See Nancy MacLean, "The Leo Frank Case Reconsidered: Gender and s.e.xual Politics in the Making of Reactionary Populism," See Nancy MacLean, "The Leo Frank Case Reconsidered: Gender and s.e.xual Politics in the Making of Reactionary Populism," Journal of American History Journal of American History 78:917 (1991). 78:917 (1991).

CHAPTER 9. LEGAL CULTURE: CRIMES OF MOBILITY.

1 On the themes of this chapter, see also my article, "Crimes of Mobility," On the themes of this chapter, see also my article, "Crimes of Mobility," Stanford Law Review Stanford Law Review 43:637 (1991). 43:637 (1991).

2 Alexis de Toqueville, Alexis de Toqueville, Democracy in America Democracy in America (ed., J. P. Mayer; 1969), p. 582. (ed., J. P. Mayer; 1969), p. 582.

3 I am indebted to Professor Adam Hirsch for this observation. I am indebted to Professor Adam Hirsch for this observation.

4 A typical example from the Compiled Laws of Kans., 1862, chap. 33, sec. 88: a person who "with intent to cheat or defraud another, shall, designedly, by color of any false token or writing, or by any other false pretence . . . obtain from any person any money, personal property . . . or other valuable thing," is to be treated as if he or she had stolen the "money, property, or thing so obtained." Under chap. 33, sec. 91, similar treatment is mandated for a person who "shall falsely represent or personate another, and, in such a.s.sumed character, shall receive any money . . . or property . . . intended to be delivered to the individual so personated." A typical example from the Compiled Laws of Kans., 1862, chap. 33, sec. 88: a person who "with intent to cheat or defraud another, shall, designedly, by color of any false token or writing, or by any other false pretence . . . obtain from any person any money, personal property . . . or other valuable thing," is to be treated as if he or she had stolen the "money, property, or thing so obtained." Under chap. 33, sec. 91, similar treatment is mandated for a person who "shall falsely represent or personate another, and, in such a.s.sumed character, shall receive any money . . . or property . . . intended to be delivered to the individual so personated."

5 So. Dak. Stats. (1899), Vol. 2, chap. 47, sec. 8082, p. 1976. So. Dak. Stats. (1899), Vol. 2, chap. 47, sec. 8082, p. 1976.

6 Anthony Comstock, Anthony Comstock, Frauds Exposed Frauds Exposed, or How the People Are Deceived and Robbed, and Youth Corrupted or How the People Are Deceived and Robbed, and Youth Corrupted (1880), p. 14. (1880), p. 14.

7 James D. McCabe, Jr., James D. McCabe, Jr., Lights and Shadows of New York Life: or Lights and Shadows of New York Life: or, The Sights and Sensations of the Great City The Sights and Sensations of the Great City (1872; reprint ed., 1970), p. 751. (1872; reprint ed., 1970), p. 751.

8 McCabe, McCabe, Lights and Shadows Lights and Shadows, p. 319. McCabe thought there was "no city in the Union in which impostors of all kinds flourish so well as in New York," because of the "immense size of the city, the heterogeneous character of its population, and the great variety of the interests and pursuits of the people" (ibid., p. 316).

9 New York Times New York Times, Dec. 13, 1902, p. 6; Dec. 21, 1902, p. 19.

10 McCabe, McCabe, Lights and Shadows Lights and Shadows, p. 319.

11 New York Times New York Times, March 21, 1894, p. 1.

12 George W. Walling, George W. Walling, Recollections of Recollections of a a New York Chief of Police New York Chief of Police (1887; reprint ed., 1972), pp. 335-37. (1887; reprint ed., 1972), pp. 335-37.

13 See T. F. Byrnes, See T. F. Byrnes, Professional Criminals of America Professional Criminals of America (1886), pp. 405-6. (1886), pp. 405-6.

14 See "Clever Swindlers Specialize in Victimizing Lawyers," See "Clever Swindlers Specialize in Victimizing Lawyers," American Bar a.s.sociation Journal American Bar a.s.sociation Journal 12:132-33 (1926). 12:132-33 (1926).

15 New York Times New York Times, March 10, 1888, p. 6.

16 Raphael Semmes, Raphael Semmes, Crime and Punishment in Early Maryland Crime and Punishment in Early Maryland (1938), pp. 205-6. (1938), pp. 205-6.

17 N. E. H. Hull, N. E. H. Hull, Female Felons: Women and Serious Crime in Colonial Ma.s.sachusetts Female Felons: Women and Serious Crime in Colonial Ma.s.sachusetts (1987), p. 114. (1987), p. 114.

18 Code of Tenn. 1858, sec. 4839, p. 867. A person who had "good reason to believe such former husband or wife to be dead" was not guilty of the crime (sec. 4840, p. 868). It was also a crime for an "unmarried person" to marry, "knowingly," the "husband or wife of another" (sec. 4842, p. 868). Code of Tenn. 1858, sec. 4839, p. 867. A person who had "good reason to believe such former husband or wife to be dead" was not guilty of the crime (sec. 4840, p. 868). It was also a crime for an "unmarried person" to marry, "knowingly," the "husband or wife of another" (sec. 4842, p. 868).

19 Third Annual Message of Charles F. Warwick Third Annual Message of Charles F. Warwick, Mayor of . . . Philadelphia Mayor of . . . Philadelphia , , with Annual Reports with Annual Reports . . . . . . Superintendent of the Bureau of Police Superintendent of the Bureau of Police (1898), p. 42; (1898), p. 42; Annual Report Annual Report, Police Department of the City of New York Police Department of the City of New York (1913), p. 17; (1913), p. 17; Annual Report Annual Report, Police Department of the City of Los Angeles Police Department of the City of Los Angeles, 1924-25, 1924-25, p. 18. There were over 62,000 arrests in Philadelphia in 1897, and over 35,000 in Los Angeles in 1924-25, so that bigamy, whatever its importance as a social indicator, did not loom large in police affairs. p. 18. There were over 62,000 arrests in Philadelphia in 1897, and over 35,000 in Los Angeles in 1924-25, so that bigamy, whatever its importance as a social indicator, did not loom large in police affairs.

20 New York Times New York Times, July 3, 1888, p. 2.

21 National Intelligencer National Intelligencer (Washington, D.C.), Sept. 20, 1869, p. 1. The first wife, according to the newspapers, was so distraught when she learned the bad news that she swallowed a "quant.i.ty of corrosive sublimate" and was said to be "slowly dying." (Washington, D.C.), Sept. 20, 1869, p. 1. The first wife, according to the newspapers, was so distraught when she learned the bad news that she swallowed a "quant.i.ty of corrosive sublimate" and was said to be "slowly dying."

22 New York Times New York Times, Sept. 11, 1888, p. 1.

23 New York Times New York Times, Sept. 27, 1897, p. 5.

24 John D. Lawson, ed., John D. Lawson, ed., American State Trials, American State Trials, Vol. 2 (1914), p. 714. Vol. 2 (1914), p. 714.

25 New York Times New York Times, Sept. 27, 1897, p. 5.

26 Nancy F. Cott, Nancy F. Cott, The Bonds of Womanhood: "Woman's Sphere" in New England The Bonds of Womanhood: "Woman's Sphere" in New England, 1780-1835 1780-1835 (1977), pp. 64-74. (1977), pp. 64-74.

27 See Delger Trowbridge, "Criminal Intent and Bigamy," See Delger Trowbridge, "Criminal Intent and Bigamy," California Law Review California Law Review 7:1 (1918). 7:1 (1918).

28 New York Times New York Times, Sept. 21, 1896, p. 5.

29 New York Times New York Times, Oct. 6, 1896, p. 12. Foens may have honestly thought he was divorced.

30 On this case, see Craig Brandon, On this case, see Craig Brandon, Murder in the Adirondacks: "An American Tragedy" Revisited Murder in the Adirondacks: "An American Tragedy" Revisited (1986). (1986).

31 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 1800-1887 (1979), p. 65. (1979), p. 65.

32 Carl B. Klockars, Carl B. Klockars, The Professional Fence The Professional Fence (1974), pp. 1-28. (1974), pp. 1-28.

33 Johnson, Policing Johnson, Policing the Urban Underworld the Urban Underworld, pp. 47-49.

34 Matthew Hale Smith, Matthew Hale Smith, Sunshine and Shadow in New York Sunshine and Shadow in New York (1880), p. 150. (1880), p. 150.

35 Roger Lane, Roger Lane, Policing the City: Boston Policing the City: Boston, 1822-1885 1822-1885 (1967), pp. 146-47. (1967), pp. 146-47.

36 Walling, Walling, Recollections Recollections, pp. 519-20.

37 Gary T. Marx, Gary T. Marx, Undercover: Police Surveillance in America Undercover: Police Surveillance in America (1988), p. 34. (1988), p. 34.

38 George S. McWatters, George S. McWatters, Knots Untied Knots Untied, or Ways and By-Ways in the Hidden Life of American Detectives or Ways and By-Ways in the Hidden Life of American Detectives (1873), pp. 648-49. On detective writings in the late nineteenth century in general, see David R. Papke, (1873), pp. 648-49. On detective writings in the late nineteenth century in general, see David R. Papke, Framing the Criminal: Crime Framing the Criminal: Crime, Cultural Work and the Loss of Critical Perspective Cultural Work and the Loss of Critical Perspective, 1830-1900 1830-1900 (1987). (1987).

39 McWatters, McWatters, Knots Untied Knots Untied, pp. 104, 649-50.

40 Ibid., pp. 104-6. Ibid., pp. 104-6.

41 George W. Walling, George W. Walling, Recollections of a New York Chief of Police Recollections of a New York Chief of Police (1887), pp. 519-20. (1887), pp. 519-20.

42 Matthew Hale Smith, Matthew Hale Smith, Sunshine and Shadow in New York Sunshine and Shadow in New York (1880), p. 162. (1880), p. 162.

43 See Frank Mom, See Frank Mom, "The Eye That Never Sleeps": A History of the Pinkerton National Detective Agency "The Eye That Never Sleeps": A History of the Pinkerton National Detective Agency (1982). (1982).

44 On this genre, see Papke, On this genre, see Papke, Framing the Criminal, Framing the Criminal, chap. 6; see also Maxwell Bloomfield, "Creative Writers and Criminal Justice: Confronting the System (1890-1920)," chap. 6; see also Maxwell Bloomfield, "Creative Writers and Criminal Justice: Confronting the System (1890-1920)," Criminal Justice Review Criminal Justice Review 15:208 (1990). 15:208 (1990).

45 See Papke, See Papke, Framing the Criminal, Framing the Criminal, chap. 5. There is, of course, a vast literature on the history of this branch of literature; see, among others, Howard Haycraft, chap. 5. There is, of course, a vast literature on the history of this branch of literature; see, among others, Howard Haycraft, Murder for Pleasure Murder for Pleasure (enlarged edition, 1968); David Lehman, (enlarged edition, 1968); David Lehman, The Perfect Murder: A Study in Detection The Perfect Murder: A Study in Detection (1989). (1989).

46 See, in general, Ian Ousby, See, in general, Ian Ousby, Bloodhounds of Heaven: The Detective in English Fiction from G.o.dwin to Doyle Bloodhounds of Heaven: The Detective in English Fiction from G.o.dwin to Doyle (1976). (1976).

47 I will behave ethically and not mention the name of the person who "did it." I would point out, though, that I will behave ethically and not mention the name of the person who "did it." I would point out, though, that The Moonstone The Moonstone, unlike most mysteries, is such a wonderful novel that little harm is actually done by revealing the ending.

48 Allan Pinkerton, Allan Pinkerton, Thirty Years a Detective Thirty Years a Detective (1884; reprint ed., 1975), p. 17. (1884; reprint ed., 1975), p. 17.

49 McCabe, McCabe, Lights and Shadows Lights and Shadows, pp. 353-54.

50 Juergen Thorwald, Juergen Thorwald, The Century of the Detective The Century of the Detective (1964), p. 6. (1964), p. 6.

51 David R. Johnson, David R. Johnson, American Law Enforcement: A History American Law Enforcement: A History (1981), pp. 107, 110. (1981), pp. 107, 110.

52 [Note:] "Medico-Legal Duties of Coroners," [Note:] "Medico-Legal Duties of Coroners," American Law Register American Law Register 6:385, 395 (1858). 6:385, 395 (1858).

53 Acts and Resolves, Gen'l. Court of Ma.s.s., 1877, chap. 200, p. 580. In Suffolk County, the medical examiner was to be paid a salary of $3,000; in other counties, pay was on a piecework basis: "for a view without an autopsy, four dollars; for a view and autopsy, thirty dollars," plus travel expenses at the rate of five cents a mile "to and from the place of the view" (ibid., sec. 2). Acts and Resolves, Gen'l. Court of Ma.s.s., 1877, chap. 200, p. 580. In Suffolk County, the medical examiner was to be paid a salary of $3,000; in other counties, pay was on a piecework basis: "for a view without an autopsy, four dollars; for a view and autopsy, thirty dollars," plus travel expenses at the rate of five cents a mile "to and from the place of the view" (ibid., sec. 2).

54 See Charles H. Johnson, "The Wisconsin Coroner System," See Charles H. Johnson, "The Wisconsin Coroner System," Wisconsin Law Review Wisconsin Law Review 529 529, 536 (1951). 536 (1951).

55 See, in general, Carl B. Klockars, See, in general, Carl B. Klockars, The Professional Fence The Professional Fence (1974); Jerome Hall, (1974); Jerome Hall, Theft Theft, Law and Society Law and Society (1935). (1935).

56 The best a.n.a.lysis of the data is in Eric H. Monkkonen, The best a.n.a.lysis of the data is in Eric H. Monkkonen, Police in Urban America, 1860-1920 Police in Urban America, 1860-1920 (1981), chap. 2, pp. 65-85. (1981), chap. 2, pp. 65-85.

57 Ibid., pp. 76-77. Ibid., pp. 76-77.

CHAPTER 10. WOMEN AND CRIMINAL JUSTICE TO THE END OF THE NINETEENTH CENTURY.

1 George W. Walling, George W. Walling, Recollections of a New York Chief of Police Recollections of a New York Chief of Police (1887), pp. 280-82. (1887), pp. 280-82.

2 James C. Mohr, James C. Mohr, Abortion in America Abortion in America (1978), pp. 48-50. Her colorful career has attracted a good deal of attention: see also Allan Keller, (1978), pp. 48-50. Her colorful career has attracted a good deal of attention: see also Allan Keller, Scandalous Lady: The Life and Times of Madame Restell Scandalous Lady: The Life and Times of Madame Restell (1981); Clifford Browder, (1981); Clifford Browder, The Wickedest Woman in New York: Madame Restell, the Abortionist The Wickedest Woman in New York: Madame Restell, the Abortionist (1988). (1988).

3 Glenn Shirley, Glenn Shirley, West of h.e.l.l's Fringe: Crime West of h.e.l.l's Fringe: Crime, Criminals and the Federal Peace Officer in Oklahoma Territory Criminals and the Federal Peace Officer in Oklahoma Territory, 1889-1907 1889-1907 (1978), pp. 242-50. (1978), pp. 242-50.

4 George Ellington, George Ellington, The Women of New York: or the Under-World of the Great City The Women of New York: or the Under-World of the Great City (1869; reprint ed., 1972), p. 441. (1869; reprint ed., 1972), p. 441.

5 National Police Gazette National Police Gazette, Nov. 28, 1896, p. 6.

6 National Police Gazette National Police Gazette, Dec. 6, 1884, p. 6.

7 James D. McCabe, Jr., James D. McCabe, Jr., Lights and Shadows of New York Life Lights and Shadows of New York Life; or the Sights and Sensations of the Great City or the Sights and Sensations of the Great City (1872; reprint ed., 1970), p. 660; Edward c.r.a.psey, (1872; reprint ed., 1970), p. 660; Edward c.r.a.psey, The Nether Side of New York The Nether Side of New York; or the Vice or the Vice, Crime and Poverty of the Great Metropolis Crime and Poverty of the Great Metropolis (1872; reprint ed., 1969), p. 122. (1872; reprint ed., 1969), p. 122.

8 Allan Nevins and Milton H. Thomas, eds., Allan Nevins and Milton H. Thomas, eds., The Diary of George Templeton Strong, The Diary of George Templeton Strong, Vol. 2 (1952), p. 57 (entry of July 7, 1851). Vol. 2 (1952), p. 57 (entry of July 7, 1851).

9 William Francis Kuntz, William Francis Kuntz, Criminal Sentencing in Three Nineteenth Criminal Sentencing in Three Nineteenth-Century Cities (1988), p. 370. (1988), p. 370.

10 1 Blackstone's Commentaries 28. 1 Blackstone's Commentaries 28.

11 Charles d.i.c.kens, Charles d.i.c.kens, Oliver Twist Oliver Twist (ed. Tilloston, 1966), p. 354. (ed. Tilloston, 1966), p. 354.

12 Joel P. Bishop, Joel P. Bishop, Commentaries on the Criminal Law Commentaries on the Criminal Law, Vol. 1 (2d ed., 1858), sec. 277, p. 316.

13 G. S. Rowe, G. S. Rowe, "Femes Covert "Femes Covert and Criminal Prosecution in Eighteenth-Century Pennsylvania," and Criminal Prosecution in Eighteenth-Century Pennsylvania," American Journal of Legal History American Journal of Legal History 32:138, 151-52 (1988). 32:138, 151-52 (1988).

14 See Laws Ga. 1811, No. 377, sec. 7, for example. See Laws Ga. 1811, No. 377, sec. 7, for example.

15 Freel v. State, 21 Ark. 212 (1860). Technically, the issue was whether the judge's instructions to the jury on this point were correct or not. Presumably, the defendant had no evidence that her husband coerced her; and she was banking on a presumption of law: that is, that his mere presence implied coercion. Freel v. State, 21 Ark. 212 (1860). Technically, the issue was whether the judge's instructions to the jury on this point were correct or not. Presumably, the defendant had no evidence that her husband coerced her; and she was banking on a presumption of law: that is, that his mere presence implied coercion.

16 43 Ala. 316 (1869). 43 Ala. 316 (1869).

17 Commonwealth v. Reynolds, 114 Ma.s.s. 306 (1873). Commonwealth v. Reynolds, 114 Ma.s.s. 306 (1873).

18 Commonwealth v. Samantha Hutchinson, 3 Am. Law Reg. 113, 115 (Pa., 6th Jud. Dist., 1854). The indictment was also defective because the "crime" was not part of the penal code; on the demise of common-law crimes, see chapter 3. Commonwealth v. Samantha Hutchinson, 3 Am. Law Reg. 113, 115 (Pa., 6th Jud. Dist., 1854). The indictment was also defective because the "crime" was not part of the penal code; on the demise of common-law crimes, see chapter 3.

19 See, for example, Gen. Stats. Ky., 1887, chap. 29, art. 4, sec. 5 (rape of a female over the age of twelve carries the death penalty, at the discretion of the jury). The most severe statutes were in the South and had distinctly racial overtones. See, for example, Gen. Stats. Ky., 1887, chap. 29, art. 4, sec. 5 (rape of a female over the age of twelve carries the death penalty, at the discretion of the jury). The most severe statutes were in the South and had distinctly racial overtones.

20 Laura F. Edwards, "s.e.xual Violence, Gender, Reconstruction, and the Extension of Patriarchy in Granville County, North Carolina," Laura F. Edwards, "s.e.xual Violence, Gender, Reconstruction, and the Extension of Patriarchy in Granville County, North Carolina," North Carolina Historical Review North Carolina Historical Review 58:237 (1991). 58:237 (1991).

21 Laws of the State of New York Laws of the State of New York . . . . . . since the Revolution since the Revolution, Vol. 1 (1792), p. 338 (act of Feb. 14, 1787).

22 The Revised Statutes of New York of 1829 no longer punished rape with death; and its language had been cleaned up; but it was still a crime to "take any woman unlawfully, against her will, and by force, menace or duress, compel her to marry him, or to marry any other person, or to be defiled." Laws N.Y. 1829, Vol. 2, p. 663. The Revised Statutes of New York of 1829 no longer punished rape with death; and its language had been cleaned up; but it was still a crime to "take any woman unlawfully, against her will, and by force, menace or duress, compel her to marry him, or to marry any other person, or to be defiled." Laws N.Y. 1829, Vol. 2, p. 663.

23 Code of Alabama, 1886, Vol. 2, p. 12, sees. 3736, 3737. Code of Alabama, 1886, Vol. 2, p. 12, sees. 3736, 3737.

24 42 Tex. 226 (1875). 42 Tex. 226 (1875).