25 Tenn. Code 1858, sec. 4610. Tenn. Code 1858, sec. 4610.

26 New York Times New York Times, July 15, 1894, p. 8; Oct. 31, 1891, p. 1. I am indebted to Deborah Castler for these references.

27 People v. Dohring, 59 N.Y. 374 (1874). People v. Dohring, 59 N.Y. 374 (1874).

28 Ibid., at 375. Ibid., at 375.

29 45 Conn. 256 (1877). 45 Conn. 256 (1877).

30 Camp v. State, 3 Ga. (3 Kelly) 417, 433 (1847). Camp v. State, 3 Ga. (3 Kelly) 417, 433 (1847).

31 Ibid. Ibid.

32 Tenn. Code 1858, sees. 4612, 4613. These provisions can be found much earlier: for example, Laws N.Y. 1829, Vol. 2, p. 663, in quite similar language. Tenn. Code 1858, sees. 4612, 4613. These provisions can be found much earlier: for example, Laws N.Y. 1829, Vol. 2, p. 663, in quite similar language.

33 Don Moran v. People, 25 Mich. 356, 357 (1872). Don Moran v. People, 25 Mich. 356, 357 (1872).

34 Commonwealth v. Stratton, 114 Ma.s.s. 303 (1873). Stratton was convicted of a.s.sault and battery. Commonwealth v. Stratton, 114 Ma.s.s. 303 (1873). Stratton was convicted of a.s.sault and battery.

35 N.Y. Laws 1848, chap. 111. N.Y. Laws 1848, chap. 111.

36 Ga. Code 1882, sec. 4371, p. 1148. Milder versions of the law were in force in some states. Thus, in Nebraska, the crime could be committed only if the "female of good repute" was "under the age of 18 years." Gen'l. stats. Neb. 1873, chap. 20, sec. 207, p. 771. Ga. Code 1882, sec. 4371, p. 1148. Milder versions of the law were in force in some states. Thus, in Nebraska, the crime could be committed only if the "female of good repute" was "under the age of 18 years." Gen'l. stats. Neb. 1873, chap. 20, sec. 207, p. 771.

37 People v. Walter Clark, 33 Mich. 112 (1876). People v. Walter Clark, 33 Mich. 112 (1876).

38 Laws Ohio 1886, p. 92 (pa.s.sed April 22, 1886). Laws Ohio 1886, p. 92 (pa.s.sed April 22, 1886).

39 National Police Gazette National Police Gazette, Oct. 5, 1867, p. 4.

40 People v. Gould, 70 Mich. 240, 38 N.W. 232 (1888). See also Wright v. State, 31 Tex. Cr. R. 354, 20 S.W. 756 (1892). Edward H. Savage in People v. Gould, 70 Mich. 240, 38 N.W. 232 (1888). See also Wright v. State, 31 Tex. Cr. R. 354, 20 S.W. 756 (1892). Edward H. Savage in Police Records and Recollections Police Records and Recollections (1873; reprint ed., 1971), pp. 280-82, reports a marriage in 1861 in the Boston "Tombs." The defendant said "he (1873; reprint ed., 1971), pp. 280-82, reports a marriage in 1861 in the Boston "Tombs." The defendant said "he was was ready ready to marry" to marry" his pregnant girlfriend, the wedding was duly performed, and he was released. his pregnant girlfriend, the wedding was duly performed, and he was released.

41 Code of Alabama, 1887, Vol. 2, sees. 4031, 4032, p. 77. Code of Alabama, 1887, Vol. 2, sees. 4031, 4032, p. 77.

42 Weaver v. State, 79 Ala. 279 (1885). Weaver v. State, 79 Ala. 279 (1885).

43 41 Ga. 278 (1870). 41 Ga. 278 (1870).

44 National Police Gazette National Police Gazette, July 13, 1878, p. 7.

45 On the Sickles case and "temporary insanity," see above, chapter 6; see also Nat Brandt, On the Sickles case and "temporary insanity," see above, chapter 6; see also Nat Brandt, The Congressman Who Got Away With Murder The Congressman Who Got Away With Murder (1991). (1991).

46 See Robert M. Ireland, "The Libertine Must Die: s.e.xual Dishonor and the Unwritten Law in the Nineteenth-Century United States," See Robert M. Ireland, "The Libertine Must Die: s.e.xual Dishonor and the Unwritten Law in the Nineteenth-Century United States," Journal of Social History Journal of Social History 23:27 (1992). 23:27 (1992).

47 See Robert M. Ireland, "Frenzied and Fallen Females: Women and s.e.xual Dishonor in the Nineteenth-Century United States," See Robert M. Ireland, "Frenzied and Fallen Females: Women and s.e.xual Dishonor in the Nineteenth-Century United States," Journal of Women's History Journal of Women's History 3:95 (1992). 3:95 (1992).

48 Ireland, "The Libertine Must Die," p. 34. The sentence was later commuted to ten years in prison. Ireland, "The Libertine Must Die," p. 34. The sentence was later commuted to ten years in prison.

49 Edward H. Savage, Edward H. Savage, Police Records and Recollections Police Records and Recollections (1873; reprint ed., 1971), pp. 221-22. (1873; reprint ed., 1971), pp. 221-22.

50 Crim. Laws of Texas 1881, art. 567, p. 191. The killing had to "take place before the parties to the act of adultery have separated." Crim. Laws of Texas 1881, art. 567, p. 191. The killing had to "take place before the parties to the act of adultery have separated."

51 It was repealed in 1973. Acts Texas 1973, chap. 399. It was repealed in 1973. Acts Texas 1973, chap. 399.

52 Deborah L. Rhode, Deborah L. Rhode, Justice and Gender Justice and Gender (1989), p. 238. (1989), p. 238.

53 American Jurist and Law Magazine, American Jurist and Law Magazine, October 1838, p. 243. October 1838, p. 243.

54 Ball Fenner, Ball Fenner, Raising the Veil: or Raising the Veil: or, Scenes in the Courts Scenes in the Courts (1856), p. 253. (1856), p. 253.

55 See Elizabeth Pleck, "Wife Beating in Nineteenth-Century America," See Elizabeth Pleck, "Wife Beating in Nineteenth-Century America," Victimology Victimology 4:60 (1979). 4:60 (1979).

56 Laws Nev. 1877, chap. 43, p. 82. On the movement to bring back the whipping post, see Elizabeth Pleck, Laws Nev. 1877, chap. 43, p. 82. On the movement to bring back the whipping post, see Elizabeth Pleck, Domestic Tyranny: The Making of Social Policy Against Family Violence from Colonial Times to the Present Domestic Tyranny: The Making of Social Policy Against Family Violence from Colonial Times to the Present (1987), pp. 108-21. (1987), pp. 108-21.

57 Maryland pa.s.sed a law authorizing flogging for wife-beating in 1882. Laws Md. 1882, Chap. 120, p. 172; see also Laws Ore. 1905, chap. 203, p. 335; Laws Del. 1901, chap 204, p. 493. Maryland pa.s.sed a law authorizing flogging for wife-beating in 1882. Laws Md. 1882, Chap. 120, p. 172; see also Laws Ore. 1905, chap. 203, p. 335; Laws Del. 1901, chap 204, p. 493.

58 Pleck, Pleck, Domestic Tyranny Domestic Tyranny, p. 65.

59 Linda Gordon, Linda Gordon, Heroes of Their Own Lives: The Politics and History of Family Violence: Boston Heroes of Their Own Lives: The Politics and History of Family Violence: Boston, 1880-1960 1880-1960 (1988), p. 251. (1988), p. 251.

60 Douglas Greenberg, Douglas Greenberg, Crime and Law Enforcement in the Colony of New York, 1691-1776 Crime and Law Enforcement in the Colony of New York, 1691-1776 (1974), pp. 113-14; see chapter 3. (1974), pp. 113-14; see chapter 3.

61 Braddy v. City of Milledgeville, 74 Ga. 516 (1884). Braddy v. City of Milledgeville, 74 Ga. 516 (1884).

62 On the St. Louis experiment, I have drawn on James Wunsch, "Prost.i.tution and Public Policy: From Regulation to Suppression, 1858-1920" (Ph.D. dissertation, Department of History, University of Chicago, 1976), pp. 38-59. On the St. Louis experiment, I have drawn on James Wunsch, "Prost.i.tution and Public Policy: From Regulation to Suppression, 1858-1920" (Ph.D. dissertation, Department of History, University of Chicago, 1976), pp. 38-59.

63 Ibid., pp. 39-40. Ibid., pp. 39-40.

64 Ibid., p. 42. Ibid., p. 42.

65 Ibid., p. 54. Ibid., p. 54.

66 John H. Warren, Jr., John H. Warren, Jr., Thirty Years' Battle with Crime Thirty Years' Battle with Crime (1875; reprinted., 1970), pp. 37-38. (1875; reprinted., 1970), pp. 37-38.

67 Barbara M. Hobson, Barbara M. Hobson, Uneasy Virtue: The Politics of Prost.i.tution and the American Reform Tradition Uneasy Virtue: The Politics of Prost.i.tution and the American Reform Tradition (1987), pp. 11, 23. (1987), pp. 11, 23.

68 Laws Mich. 1869, No. 145, sec. 4, pp. 264, 265. The act applied to "every person more than fifteen years of age who is a common prost.i.tute." The inspectors of the Detroit House of Correction were empowered to establish "rules and regulations" under which these women might be "absolutely discharged from imprisonment," if they underwent "reformation." Ibid., sec. 5, p. 266. Laws Mich. 1869, No. 145, sec. 4, pp. 264, 265. The act applied to "every person more than fifteen years of age who is a common prost.i.tute." The inspectors of the Detroit House of Correction were empowered to establish "rules and regulations" under which these women might be "absolutely discharged from imprisonment," if they underwent "reformation." Ibid., sec. 5, p. 266.

69 Hobson, Hobson, Uneasy Virtue Uneasy Virtue, p. 32.

70 Quoted in Ruth Rosen, Quoted in Ruth Rosen, The Lost Sisterhood: Prost.i.tution in America The Lost Sisterhood: Prost.i.tution in America, 1900-1918 1900-1918 (1982), p. 5. (1982), p. 5.

71 These nice women, of course, were white, middle-cla.s.s women. Black women in the deep South, both before and after slavery, were "an outlet for male s.e.xual drives that would otherwise pollute white womanhood" (Rosen, These nice women, of course, were white, middle-cla.s.s women. Black women in the deep South, both before and after slavery, were "an outlet for male s.e.xual drives that would otherwise pollute white womanhood" (Rosen, Lost Sisterhood Lost Sisterhood, p. 6).

72 John C. Schneider, John C. Schneider, Detroit and the Problem of Order Detroit and the Problem of Order, 1830-1880 1830-1880 (1980), pp. 103-4. (1980), pp. 103-4.

73 Matthew Hale Smith, Matthew Hale Smith, Sunshine and Shadow in New York Sunshine and Shadow in New York (1880), pp. 371-72; see also George T. Kneeland, (1880), pp. 371-72; see also George T. Kneeland, Commercialized Prost.i.tution in New York City Commercialized Prost.i.tution in New York City (1913; reprint ed., 1969), especially chap. 7. (1913; reprint ed., 1969), especially chap. 7.

74 L'Hote v. New Orleans, 177 U.S. 587 (1900). L'Hote v. New Orleans, 177 U.S. 587 (1900).

75 Wunsch, "Prost.i.tution and Public Policy," pp. 91-93. Wunsch, "Prost.i.tution and Public Policy," pp. 91-93.

76 See, in general, James C. Mohr, See, in general, James C. Mohr, Abortion in America: The Origins and Evolution of National Policy Abortion in America: The Origins and Evolution of National Policy (1978), on which much of this account is based; see also Reva Siegel, "Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection," (1978), on which much of this account is based; see also Reva Siegel, "Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection," Stanford Law Review Stanford Law Review 44:261 (1992). 44:261 (1992).

77 Mohr, Mohr, Abortion in America, Abortion in America, p. 21; Conn. Rev. Stats. 1821, t.i.tle 22, sec. 14, p. 152. p. 21; Conn. Rev. Stats. 1821, t.i.tle 22, sec. 14, p. 152.

78 Rev. Stats. N.Y. 1829, Vol. 2, p. 694; see also the similar provision (p. 661) that specifically speaks of a "woman pregnant with a quick child." Rev. Stats. N.Y. 1829, Vol. 2, p. 694; see also the similar provision (p. 661) that specifically speaks of a "woman pregnant with a quick child."

79 Ellington, Ellington, Women of New York Women of New York, pp. 408-9.

80 Mohr, Mohr, Abortion in America, Abortion in America, chap. 6. chap. 6.

81 Quoted in Ellington, Quoted in Ellington, Women of New York Women of New York, p. 411; the minister went on to cry out: "O women of America! ... are you to see foreigners rear up large families . . . while you . . . refuse to meet the high responsibilities and the holy joys which G.o.d lays at your feet?" Ellington himself grumbled that "It is not considered fashionable to have children. It intereferes with the round of dissipation of the stylish woman" (p. 410).

82 Charles Sutton, Charles Sutton, The New York Tombs: Its Secrets and Its Mysteries The New York Tombs: Its Secrets and Its Mysteries (1874), pp. 359-60. (1874), pp. 359-60.

83 Quoted in Siegel, "Reasoning from the Body," p. 298. Quoted in Siegel, "Reasoning from the Body," p. 298.

84 Sutton, Sutton, The Tombs The Tombs, pp. 364-65.

85 Brooklyn Daily Eagle Brooklyn Daily Eagle, Dec. 6, 1918, p. 5.

86 Katherine K. Christoffel and Kiang Liu, "Homicide Death Rates in Childhood in Twenty-Three Developed Countries: U.S. Rates Atypically High," Katherine K. Christoffel and Kiang Liu, "Homicide Death Rates in Childhood in Twenty-Three Developed Countries: U.S. Rates Atypically High," Journal of Child Abuse and Neglect Journal of Child Abuse and Neglect 7:339 (1983). 7:339 (1983).

87 See, in general, Lionel Rose, See, in general, Lionel Rose, The Ma.s.sacre of the Innocents: Infanticide in Britain The Ma.s.sacre of the Innocents: Infanticide in Britain, 1800-1939 1800-1939 (1986). (1986).

88 Digest Laws N.J., 2d ed., 1855, p. 163. Digest Laws N.J., 2d ed., 1855, p. 163.

89 Mary Gardner's Case, 5 City-Hall Recorder 70 (1819). The judge thought that "wilful violence from the mother" was the real cause of death; but the jury went its own way. Mary Gardner's Case, 5 City-Hall Recorder 70 (1819). The judge thought that "wilful violence from the mother" was the real cause of death; but the jury went its own way.

90 Edward c.r.a.psey, Edward c.r.a.psey, The Nether Side of New York: or the Vice The Nether Side of New York: or the Vice, Crime and Poverty of the Great Metropolis Crime and Poverty of the Great Metropolis (1872), p. 123. After 1870, according to c.r.a.psey, the situation changed, because of the new "Foundling Asylum," where "a larger proportion . . . survive to become public burdens." (1872), p. 123. After 1870, according to c.r.a.psey, the situation changed, because of the new "Foundling Asylum," where "a larger proportion . . . survive to become public burdens."

91 Warren, Warren, Thirty Years' Battle, Thirty Years' Battle, pp. 167-68. pp. 167-68.

92 Gordon, Gordon, Heroes of Their Own Lives Heroes of Their Own Lives, p. 44.

93 George Ellington devotes a chapter of his book to "infanticide in the great metropolis," but what he is talking about is abortion. He does, however, mention the baby farms, "temples of the innocents," where babies are either given out for adoption, or (if not adopted) starved to death or otherwise gotten rid of. Ellington, George Ellington devotes a chapter of his book to "infanticide in the great metropolis," but what he is talking about is abortion. He does, however, mention the baby farms, "temples of the innocents," where babies are either given out for adoption, or (if not adopted) starved to death or otherwise gotten rid of. Ellington, Women of New York Women of New York, chaps. 33, 39.

94 Roger Lane, Roger Lane, Roots of Violence in Black Philadelphia Roots of Violence in Black Philadelphia, 1860-1900 1860-1900 (1986), pp. 129-30. Lane reports that the "official cases were only a small fraction of the number which really occurred"; as in London, hundreds of infants "were found dead every year in the streets, lots, and cesspools." (1986), pp. 129-30. Lane reports that the "official cases were only a small fraction of the number which really occurred"; as in London, hundreds of infants "were found dead every year in the streets, lots, and cesspools."

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

96 Edward L. Ayers, 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. 62. (1984), p. 62.

97 Estelle B. Freedman, Estelle B. Freedman, Their Sisters' Keepers: Women's Prison Reform in America, 1830-1930 Their Sisters' Keepers: Women's Prison Reform in America, 1830-1930 (1981), p. 11. (1981), p. 11.

98 William Francis Kuntz II, William Francis Kuntz II, Criminal Sentencing in Three Nineteenth-Century Cities Criminal Sentencing in Three Nineteenth-Century Cities (1988), p. 413. (1988), p. 413.

99 Nicole H. Rafter, Nicole H. Rafter, Partial Justice: Women in State Prisons Partial Justice: Women in State Prisons, 1800-1935 1800-1935 (1985), pp. 16-21. (1985), pp. 16-21.

100 Freedman, Freedman, Their Sisters' Keepers Their Sisters' Keepers, pp. 51-52; see also Laws Ma.s.s. 1875, chap. 385.

101 Ma.s.sachusetts Public Doc.u.ments, 1895, Vol. 10, Public Doc. No. 13, Ma.s.sachusetts Public Doc.u.ments, 1895, Vol. 10, Public Doc. No. 13, 25th Annual Report 25th Annual Report, Commissioners of Prisons of Ma.s.s Commissioners of Prisons of Ma.s.s., "Report Concerning the Reformatory Prison for Women," p. 70.

102 See Ma.s.s. Rev. Stats. 1881, chap. 207, sec. 29. See Ma.s.s. Rev. Stats. 1881, chap. 207, sec. 29.

103 Laws Ma.s.s. 1875, chap. 385, sec. 21. Laws Ma.s.s. 1875, chap. 385, sec. 21.

104 "Report Concerning the Ma.s.sachusetts Reformatory," Public Doc. No. 13, "Report Concerning the Ma.s.sachusetts Reformatory," Public Doc. No. 13, 25th Annual Report 25th Annual Report, Commissioners of Prisons of Ma.s.s Commissioners of Prisons of Ma.s.s., 1895, p. 101.

105 Isabel C. Barrows, "The Ma.s.sachusetts Reformatory Prison for Women," in S. J. Barrows, Isabel C. Barrows, "The Ma.s.sachusetts Reformatory Prison for Women," in S. J. Barrows, The Reformatory System in the United The Reformatory System in the United States (report prepared for the International Prison Commission, 1900), pp. 101, 112. States (report prepared for the International Prison Commission, 1900), pp. 101, 112.

106 "Report Concerning the Reformatory Prison for Women," Public Doc. no. 13, "Report Concerning the Reformatory Prison for Women," Public Doc. no. 13, 25th Annual Report 25th Annual Report, Commissioner of Prisons of Ma.s.s Commissioner of Prisons of Ma.s.s., 1895, p. 82.

CHAPTER 11. THE EVOLUTION OF CRIMINAL PROCESS: TRIALS AND ERRORS.

1 See Lawrence M. Friedman and Robert V. Percival, See Lawrence M. Friedman and Robert V. Percival, The Roots of Justice: Crime and Punishment in Alameda County The Roots of Justice: Crime and Punishment in Alameda County, California California, 1870-1910 1870-1910 (1981), chap. 7. (1981), chap. 7.

2 Samuel Walker, Samuel Walker, Sense and Nonsense About Crime: A Policy Guide Sense and Nonsense About Crime: A Policy Guide, (2d ed., 1989), pp. 19-34.

3 The printed version of the trial, and some valuable commentary, can be found in Julius Goebel, Jr., ed., The printed version of the trial, and some valuable commentary, can be found in Julius Goebel, Jr., ed., The Law Practice of Alexander Hamilton The Law Practice of Alexander Hamilton, Doc.u.ments and Commentary Doc.u.ments and Commentary, Vol. 1 (1964), pp. 693-774.

4 See David R. Ka.s.serman, See David R. Ka.s.serman, Fall River Outrage: Life, Murder Fall River Outrage: Life, Murder, and Justice in Early Industrial New England and Justice in Early Industrial New England (1986), p. 136, which is about the sensational 1832 trial of the Reverend Ephraim Avery for murder. (1986), p. 136, which is about the sensational 1832 trial of the Reverend Ephraim Avery for murder.

5 Jack K. Williams, Jack K. Williams, Vogues in Villainy: Crime and Retribution in AnteBellum South Carolina Vogues in Villainy: Crime and Retribution in AnteBellum South Carolina (1959), pp. 75-76. (1959), pp. 75-76.

6 Thomas Ford, Thomas Ford, A History of Illinois from Its Commencement as a State in 1818 to 1847 A History of Illinois from Its Commencement as a State in 1818 to 1847 (1854), p. 29. (1854), p. 29.

7 Goebel, Goebel, Practice of Alexander Hamilton Practice of Alexander Hamilton, p. 771. The sessions court in South Carolina often heard cases well into the night. The practice was to swear in forty-eight men, from which two juries would be carved. While one jury was deliberating, the second would be hearing another case. Williams, Vogues in Villainy, Vogues in Villainy, p. 82. p. 82.

8 1 1 City Hall Recorder City Hall Recorder (New York, 1816), p. 6. (New York, 1816), p. 6.

9 See Max Rheinstein, ed., See Max Rheinstein, ed., Max Weber on Law in Economy and Society Max Weber on Law in Economy and Society (1954), p. 213n. (1954), p. 213n.

10 Allen Steinberg, Allen Steinberg, The Transformation of Criminal Justice: Philadelphia The Transformation of Criminal Justice: Philadelphia , , 1800-1880 1800-1880 (1989), pp. 1-2. (1989), pp. 1-2.

11 No settlement was possible if the victim of the misdemeanor was an "officer or minister of justice, whilst in the execution of the duties of his office," or if the crime was committed "riotously" or "with an intent to commit a felony." N.Y. Rev. Stats. 1829, Vol. 2, p. 730. No settlement was possible if the victim of the misdemeanor was an "officer or minister of justice, whilst in the execution of the duties of his office," or if the crime was committed "riotously" or "with an intent to commit a felony." N.Y. Rev. Stats. 1829, Vol. 2, p. 730.

12 Steinberg, Steinberg, Transformation Transformation, pp. 46-49.

13 Ibid., p. 227. Ibid., p. 227.

14 Friedman and Percival, Friedman and Percival, Roots of Justice Roots of Justice, p. 120.

15 Ibid., p. 123. Ibid., p. 123.

16 Oakland Tribune Oakland Tribune, Sept. 17, 1884, p. 3.