17 Oakland Tribune Oakland Tribune, Oct. 23, 1895, p. 3.

18 John R. Wunder, John R. Wunder, Inferior Courts Inferior Courts, Superior Justice: A History of the Justices of the Peace on the Northwest Frontier Superior Justice: A History of the Justices of the Peace on the Northwest Frontier, 1853-1889 1853-1889 (1979), p. 170. On the fees of the justices, see ibid., pp. 100-101. For another example, see Rev. Laws Ind. 1824, chap. 41, pp. 196, 203-4. (1979), p. 170. On the fees of the justices, see ibid., pp. 100-101. For another example, see Rev. Laws Ind. 1824, chap. 41, pp. 196, 203-4.

19 Horatio Woodman, ed., Horatio Woodman, ed., Reports of Criminal Cases Tried in the Munic.i.p.al Court of the City of Boston Before Peter Oxenbridge Thacher Reports of Criminal Cases Tried in the Munic.i.p.al Court of the City of Boston Before Peter Oxenbridge Thacher (1845), p. vi. (1845), p. vi.

20 Wunder, Wunder, Inferior Courts Inferior Courts, p. 121 provides an example of this punishment.

21 Police courts and justice-of-the-peace courts, on the whole, did not leave records behind. Nineteenth-century newspapers help fill in the gap. For an account of one case in justice court, see Zigurds L. Zile, "Vosburg v. Putney: A Centennial Story," Police courts and justice-of-the-peace courts, on the whole, did not leave records behind. Nineteenth-century newspapers help fill in the gap. For an account of one case in justice court, see Zigurds L. Zile, "Vosburg v. Putney: A Centennial Story," Wisconsin Law Review Wisconsin Law Review 877 (1992). 877 (1992).

22 Arthur Train, Arthur Train, The Prisoner at the Bar The Prisoner at the Bar (1926; originally published, 1906), p. 111. (1926; originally published, 1906), p. 111.

23 Hurtalo v. California, 110 U.S. 516 (1884). On the operation of the California system in the late nineteenth century, see Friedman and Percival, Hurtalo v. California, 110 U.S. 516 (1884). On the operation of the California system in the late nineteenth century, see Friedman and Percival, Roots of Justice, Roots of Justice, pp. 166-68. pp. 166-68.

24 Ala. Const. 1875, Art. 1, sec. 17. Ala. Const. 1875, Art. 1, sec. 17.

25 For the nineteenth-century law, see Seymour D. Thompson, "Bail in Criminal Cases," For the nineteenth-century law, see Seymour D. Thompson, "Bail in Criminal Cases," Criminal Law Magazine Criminal Law Magazine 6:1-49 (Jan. 1885); see also Friedman and Percival, 6:1-49 (Jan. 1885); see also Friedman and Percival, Roots of Justice Roots of Justice, pp. 161-66.

26 Friedman and Percival, Friedman and Percival, Roots of Justice, Roots of Justice, pp. 164-65. pp. 164-65.

27 100 U.S. 303 (1879). 100 U.S. 303 (1879).

28 Peter O. Thacher, Peter O. Thacher, Observations on Some of the Methods Known in the Law of Ma.s.sachusetts to Secure the Selection and Appointment of an Impartial Jury Observations on Some of the Methods Known in the Law of Ma.s.sachusetts to Secure the Selection and Appointment of an Impartial Jury (1834), p. 9. (1834), p. 9.

29 Rev. Stats. Fla., 1892, p. 407, chap. 16, sec. 1150. This statute applied both to civil and criminal juries. Rev. Stats. Fla., 1892, p. 407, chap. 16, sec. 1150. This statute applied both to civil and criminal juries.

30 In some states it was less; in Florida, six would do, except in capital cases. Rev. Stats. Fla. 1892, p. 886, sec. 2854. In some states it was less; in Florida, six would do, except in capital cases. Rev. Stats. Fla. 1892, p. 886, sec. 2854.

31 Cal. Penal Code (1886), sec. 1070; Colo. Ann. Stats. 1891, chap. 73, sec. 2596. Cal. Penal Code (1886), sec. 1070; Colo. Ann. Stats. 1891, chap. 73, sec. 2596.

32 Rev. Stats. Ohio, 1890, sec. 7278, pp. 1783-4. Rev. Stats. Ohio, 1890, sec. 7278, pp. 1783-4.

33 Oakland Tribune Oakland Tribune, Feb. 18, 1875, p. 3; Friedman and Percival, Roots of Justice Roots of Justice, p. 184.

34 On the Haymarket affair, see Paul Avrich, On the Haymarket affair, see Paul Avrich, The Haymarket Tragedy The Haymarket Tragedy (1984); on the selection of the jury, see pp. 264-65. (1984); on the selection of the jury, see pp. 264-65.

35 John D. Lawson, ed., John D. Lawson, ed., American State Trials, American State Trials, Vol. 5 (1916), pp. 369, 409, 432, 475, 503. Vol. 5 (1916), pp. 369, 409, 432, 475, 503.

36 Francis Wharton, Francis Wharton, A Treatise on the Law of Evidence in Criminal Issues A Treatise on the Law of Evidence in Criminal Issues (8th ed., 1880), p. 338, sec. 428. (8th ed., 1880), p. 338, sec. 428.

37 Lester B. Orfield, Lester B. Orfield, Criminal Procedure from Arrest to Appeal Criminal Procedure from Arrest to Appeal (1947), p. 459. An act of Congress, pa.s.sed in 1878, provided that the defendant "shall, at his own request, but not otherwise, be a competent witness." And his failure to make the request "shall not create any presumption against him." 20 Stat. 30, chap. 37 (act of March 16, 1878). (1947), p. 459. An act of Congress, pa.s.sed in 1878, provided that the defendant "shall, at his own request, but not otherwise, be a competent witness." And his failure to make the request "shall not create any presumption against him." 20 Stat. 30, chap. 37 (act of March 16, 1878).

38 See Friedman and Percival, See Friedman and Percival, Roots of Justice Roots of Justice, p. 185.

39 The quote, dating from 1897, is found in John M. Maguire, The quote, dating from 1897, is found in John M. Maguire, The Lance of Justice: A Semi-Centennial History of the Legal Aid Society The Lance of Justice: A Semi-Centennial History of the Legal Aid Society, 1876-1926 1876-1926 (1928), pp. 261-62. (1928), pp. 261-62.

40 Friedman and Percival, Friedman and Percival, Roots of Justice, Roots of Justice, p. 185. p. 185.

41 This observation is based on my examination of Volume 10 of the Minutes Books of Leon County, Florida. This observation is based on my examination of Volume 10 of the Minutes Books of Leon County, Florida.

42 The charge is reprinted in Edmund Pearson, ed., The charge is reprinted in Edmund Pearson, ed., Trial of Lizzie Borden Trial of Lizzie Borden (1937), pp. 377-92. (1937), pp. 377-92.

43 Lawson, Lawson, American State Trials American State Trials, Vol. 5, pp. 508, 509, 511.

44 "No judge, in any cause, civil or criminal, shall sum up or comment on the testimony, or charge the jury as to the weight of evidence; but it shall be lawful . . . to charge the jury upon . . . principles of law... "No judge, in any cause, civil or criminal, shall sum up or comment on the testimony, or charge the jury as to the weight of evidence; but it shall be lawful . . . to charge the jury upon . . . principles of law... Provided Provided, That all instructions . . . shall be in writing." Rev. Code. Miss. 1857, p. 504.

45 See, for example, Dixon v. Florida, 13 Fla. 636 (1871). See, for example, Dixon v. Florida, 13 Fla. 636 (1871).

46 In California, by agreement of both parties, the judge could give instructions orally. On instructions in California, see Friedman and Percival, In California, by agreement of both parties, the judge could give instructions orally. On instructions in California, see Friedman and Percival, Roots of Justice Roots of Justice, pp. 186-88; on the b.u.t.ts case, ibid., p. 187.

47 In our times, to be sure, there has been a great deal of research on what juries do and how they do it. See, for example, Valerie P. Hans and Neil Vidmar, In our times, to be sure, there has been a great deal of research on what juries do and how they do it. See, for example, Valerie P. Hans and Neil Vidmar, Judging the Jury Judging the Jury (1986). No such research exists, of course, for the nineteenth-century jury. (1986). No such research exists, of course, for the nineteenth-century jury.

48 35 Tenn. 302 (1855). 35 Tenn. 302 (1855).

49 Joyce v. State, 66 Tenn. 273 (1874). Joyce v. State, 66 Tenn. 273 (1874).

50 Glidewell v. State, 83 Tenn. 123 (1885). Glidewell v. State, 83 Tenn. 123 (1885).

51 Francis Wharton, Francis Wharton, A Treatise on the Law of Evidence in Criminal Issues A Treatise on the Law of Evidence in Criminal Issues (8th ed., 1880), pp. 1-2. (8th ed., 1880), pp. 1-2.

52 Mark Twain, Mark Twain, Roughing It Roughing It (1972; original ed. 1871), pp. 308-9. (1972; original ed. 1871), pp. 308-9.

53 See Robert M. Ireland, "The Nineteenth-Century Criminal Jury: Kentucky in the Context of the American Experience," See Robert M. Ireland, "The Nineteenth-Century Criminal Jury: Kentucky in the Context of the American Experience," Kentucky Review Kentucky Review 4:52 (Spring 1983). 4:52 (Spring 1983).

54 Shaffner v. Commonwealth, 72 Pa. 60 (1872). Shaffner v. Commonwealth, 72 Pa. 60 (1872).

55 Carter v. State, 77 Tenn. 440 (1882). Carter v. State, 77 Tenn. 440 (1882).

56 Spier v. State, 89 Ga. 737 (1892). Spier v. State, 89 Ga. 737 (1892).

57 A bailiff was to be available to the jurors at all times, though never in the actual jury room. Dig. Laws Texas, 1873, Articles 3070-74, pp. 527-28. A bailiff was to be available to the jurors at all times, though never in the actual jury room. Dig. Laws Texas, 1873, Articles 3070-74, pp. 527-28.

58 Gen. Stats. Conn., 1887, chap. 100, sec. 1629. Gen. Stats. Conn., 1887, chap. 100, sec. 1629.

59 Wunder, Wunder, Inferior Courts Inferior Courts, p. 75.

60 Kenneth Lamott, Kenneth Lamott, Who Killed Mr. Crittenden? Who Killed Mr. Crittenden? (1963), pp. 248-49. (1963), pp. 248-49.

61 Twain, Twain, Roughing It Roughing It, p. 316.

62 George Dargo, George Dargo, Jefferson's Louisiana: Politics and the Clash of Legal Traditions Jefferson's Louisiana: Politics and the Clash of Legal Traditions (1975), p. 108. (1975), p. 108.

63 Arthur Train, Arthur Train, The Prisoner at the Bar The Prisoner at the Bar (1906), p. 226. (1906), p. 226.

64 Theodore Ferdinand, Theodore Ferdinand, Boston's Lower Criminal Boston's Lower Criminal Courts, Courts, 1814-1850 1814-1850 (1992), pp. 89-97. (1992), pp. 89-97.

65 Friedman and Percival, Friedman and Percival, Roots of Justice Roots of Justice, p. 177.

66 The phrase is from Milton Heumann, "A Note on Plea Bargaining and Case Pressure," The phrase is from Milton Heumann, "A Note on Plea Bargaining and Case Pressure," Law and Society Review Law and Society Review 9:515 (1975). 9:515 (1975).

67 Another 112 said they pleaded guilty because they "had neither money nor friends"; 36 said "ignorance of the law" was their reason; 40 pleaded guilty "because of prior convictions"; and 19 were eager "to avoid prosecution for other crimes." Another 112 said they pleaded guilty because they "had neither money nor friends"; 36 said "ignorance of the law" was their reason; 40 pleaded guilty "because of prior convictions"; and 19 were eager "to avoid prosecution for other crimes." Eighth Annual Report Eighth Annual Report, State Board of Prison Directors, 1887 State Board of Prison Directors, 1887, p. 88.

68 On this case, see Lamott, On this case, see Lamott, Who Killed Mr Who Killed Mr. Crittenden? Crittenden?

69 Charles E. Rosenberg, Charles E. Rosenberg, The Trial of the a.s.sa.s.sin Guiteau The Trial of the a.s.sa.s.sin Guiteau (1968). (1968).

70 There is a large literature on the case; and every once in a while, some enterprising author dreams up a new "solution." Robert Sullivan, in There is a large literature on the case; and every once in a while, some enterprising author dreams up a new "solution." Robert Sullivan, in Goodbye Lizzie Borden Goodbye Lizzie Borden (1974), argues strongly that Lizzie was guilty. This account is especially valuable for its careful and full picture of the legal proceedings. For a transcript of the trial, there is Edmund L. Pearson, ed., (1974), argues strongly that Lizzie was guilty. This account is especially valuable for its careful and full picture of the legal proceedings. For a transcript of the trial, there is Edmund L. Pearson, ed., The Trial of Lizzie Borden The Trial of Lizzie Borden (1937); see also, Victoria Lincoln, (1937); see also, Victoria Lincoln, A Private Disgrace: Lizzie Borden by Daylight A Private Disgrace: Lizzie Borden by Daylight (1967). (1967).

71 For this line of thought, see Mary Hartman, For this line of thought, see Mary Hartman, Victorian Murderesses Victorian Murderesses (1977); Friedman and Percival, (1977); Friedman and Percival, Roots of Justice Roots of Justice, chap. 7.

72 Friedman and Percival, Friedman and Percival, Roots of Justice, Roots of Justice, pp. 239-44. pp. 239-44.

73 Ibid., p. 260. Ibid., p. 260.

74 On the historical development of the law of appeals, Lester B. Orfield's, On the historical development of the law of appeals, Lester B. Orfield's, Criminal Appeals in America Criminal Appeals in America (1939) is still the most comprehensive account, and I have made liberal use of it in this section of the chapter. (1939) is still the most comprehensive account, and I have made liberal use of it in this section of the chapter.

75 Commonwealth v. Clare, 89 Ma.s.s. 525 (1863). Commonwealth v. Clare, 89 Ma.s.s. 525 (1863).

76 Shaw v. State, 2 Tex. App. 487 (1877). Shaw v. State, 2 Tex. App. 487 (1877).

77 Harwell v. State, 22 Tex. App. 251, 2 S.W. 606 (1886). Harwell v. State, 22 Tex. App. 251, 2 S.W. 606 (1886).

78 Curry v. State, 7 Tex. App. 92 (1879). Curry v. State, 7 Tex. App. 92 (1879).

79 "Overruled Their Judicial Superiors," "Overruled Their Judicial Superiors," American Law Review American Law Review 21:610 (1887). 21:610 (1887).

80 23 Tex. Ct. App. 639 (1887). 23 Tex. Ct. App. 639 (1887).

81 I am indebted to Reid Schar for these figures. I am indebted to Reid Schar for these figures.

82 State v. Campbell, 210 Mo. 202, 224, 199 S.W. 706 (1908). State v. Campbell, 210 Mo. 202, 224, 199 S.W. 706 (1908).

CHAPTER 12. A NATIONAL SYSTEM.

1 See Mary H. Oakey, See Mary H. Oakey, Journey from the Gallows: Historical Evolution of Journey from the Gallows: Historical Evolution of the Penal Philosophies and Practices in the Nation's Capital the Penal Philosophies and Practices in the Nation's Capital (ed. Be-linda Swanson; 1988). (ed. Be-linda Swanson; 1988).

2 The formal system as of the beginning of the century is described in George B. Davis, The formal system as of the beginning of the century is described in George B. Davis, A Treatise on the Military Law of the United States A Treatise on the Military Law of the United States (1909); a recent comprehensive treatment is Jonathan Lurie, (1909); a recent comprehensive treatment is Jonathan Lurie, Arming Military Justice Arming Military Justice, Vol. 1 (1992).

3 See 30 Stats. 717 (act of July 7, 1898); 35 Stats. 1142, 1145, chap. 321, subchap. 11 (act of March 4, 1909). The statutes, however, provided that if the crime occurred "within the territorial limits of any State," and if there was no special See 30 Stats. 717 (act of July 7, 1898); 35 Stats. 1142, 1145, chap. 321, subchap. 11 (act of March 4, 1909). The statutes, however, provided that if the crime occurred "within the territorial limits of any State," and if there was no special federal federal law covering the crime but the act would be a crime under state law, then the person who committed the act on a federal enclave would be "deemed guilty of a like offense." law covering the crime but the act would be a crime under state law, then the person who committed the act on a federal enclave would be "deemed guilty of a like offense."

4 Christian G. Fritz, Christian G. Fritz, Federal Justice in California: The Court of Ogden Hoffman, 1851-1891 Federal Justice in California: The Court of Ogden Hoffman, 1851-1891 (1991), pp. 259-62. (1991), pp. 259-62.

5 Annual Report Annual Report, Attorney General of the United States, 1889, Attorney General of the United States, 1889, pp. 6-7. On the liquor violations of the period, and the struggle to enforce the laws, see Wilbur R. Miller, pp. 6-7. On the liquor violations of the period, and the struggle to enforce the laws, see Wilbur R. Miller, Revenuers and Moonshiners: Enforcing Federal Liquor Law in the Mountain South Revenuers and Moonshiners: Enforcing Federal Liquor Law in the Mountain South, 1865-1900 1865-1900 (1991). (1991).

6 38 Stats. 166, 171 (act of October 3, 1913). Tax fraud was not a major issue in the nineteenth century, except for moonshiners and the alcohol tax. There were prior income tax laws, before the act of 1913, but none lasted very long. In 1895, the Supreme Court struck down an income tax law, in Pollock v. Farmers' Loan and Trust Company 157 U.S. 429, 158 U.S. 601 (1895). A const.i.tutional amendment undid this case. 38 Stats. 166, 171 (act of October 3, 1913). Tax fraud was not a major issue in the nineteenth century, except for moonshiners and the alcohol tax. There were prior income tax laws, before the act of 1913, but none lasted very long. In 1895, the Supreme Court struck down an income tax law, in Pollock v. Farmers' Loan and Trust Company 157 U.S. 429, 158 U.S. 601 (1895). A const.i.tutional amendment undid this case.

7 There were 679 arrests for this offense in 1966, and 1,214 in 1985. Administrative Office of the U.S. Courts, There were 679 arrests for this offense in 1966, and 1,214 in 1985. Administrative Office of the U.S. Courts, Federal Offenders in the United States Courts 1985 Federal Offenders in the United States Courts 1985, table H-2, p. 30.

8 38 Stats. 692 (act of Aug. 15, 1914) (sponges); 38 Stats. 693, 697 (act of Aug. 18, 1914) (cotton futures). 38 Stats. 692 (act of Aug. 15, 1914) (sponges); 38 Stats. 693, 697 (act of Aug. 18, 1914) (cotton futures).

9 36 Stats. 825 (act of June 25, 1910). This act is discussed in more detail in chapter 15. 36 Stats. 825 (act of June 25, 1910). This act is discussed in more detail in chapter 15.

10 41 Stats. 324 (act of Oct. 29, 1919). 41 Stats. 324 (act of Oct. 29, 1919).

11 Brooks v. United States, 267 U.S. 432 (1925). Brooks v. United States, 267 U.S. 432 (1925).

12 40 Stats. 443 (act of March 8, 1918). 40 Stats. 443 (act of March 8, 1918).

13 Annual Report, Attorney General of the United States Annual Report, Attorney General of the United States, Fiscal Year 1924 Fiscal Year 1924, p. 79. This was about a third of all the criminal cases; selective service cases made up another third (ibid., p. 124).

14 277 U.S. 438 (1928). 277 U.S. 438 (1928).

15 Ibid., at 470. Ibid., at 470.

16 47 Stats. 326 (act of June 22, 1932); Horace L. Bomar, Jr., "The Lindbergh Law," 47 Stats. 326 (act of June 22, 1932); Horace L. Bomar, Jr., "The Lindbergh Law," Law and Contemporary Problems Law and Contemporary Problems 1:435 (1934). 1:435 (1934).

17 Quoted in Sanford J. Ungar, Quoted in Sanford J. Ungar, FBI FBI (1976), p. 72. (1976), p. 72.

18 Ibid., p. 74. Ibid., p. 74.

19 Mark H. Haller, "Urban Crime and Criminal Justice: The Chicago Case," Mark H. Haller, "Urban Crime and Criminal Justice: The Chicago Case," Journal of American History Journal of American History 57:619, 623 (1970). 57:619, 623 (1970).

20 48 Stats. 783, chap. 304 (act of May 18, 1934); 48 Stats. 781, chap. 300 (act of May 18, 1934); 48 Stats. 794, chap. 333 (act of May 22, 1934). 48 Stats. 783, chap. 304 (act of May 18, 1934); 48 Stats. 781, chap. 300 (act of May 18, 1934); 48 Stats. 794, chap. 333 (act of May 22, 1934).

21 48 Stats. 782, chap. 302 (act of May 18, 1934). 48 Stats. 782, chap. 302 (act of May 18, 1934).

22 48 Stats. 1236, chap. 757 (act of June 26, 1934). 48 Stats. 1236, chap. 757 (act of June 26, 1934).

23 Annual Report, Attorney General of the United States Annual Report, Attorney General of the United States, 1915, 1915, pp. 31-33. pp. 31-33.

24 Annual Report, Attorney General of the United States Annual Report, Attorney General of the United States, 1924 1924, pp. 89-90.

25 Annual Report, Director of Administrative Office of the U.S. Courts Annual Report, Director of Administrative Office of the U.S. Courts, 1940 1940, pp. 90-91. The IRS, aside from the liquor cases, had only 187 cases to show. For another study of the growth of federal prosecutions, see Edward Rubin, "A Statistical Study of Federal Criminal Proceedings," Law and Contemporary Problems Law and Contemporary Problems 1:494 (1934). 1:494 (1934).

26 Annual Report Annual Report, Director of the Administrative Office of the U.S. Courts Director of the Administrative Office of the U.S. Courts, 1973 1973, p. 189.

27 Administrative Office of the U.S. Courts, Administrative Office of the U.S. Courts, Federal Offenders in the United States Courts Federal Offenders in the United States Courts, 1985 1985, p. 7.

28 Administrative Office of the U.S. Courts, Administrative Office of the U.S. Courts, Federal Offenders in the United States Courts Federal Offenders in the United States Courts, 1986-1990, 1986-1990, p. 7. p. 7.

29 Yale Kamisar, Wayne LaFave, Jerold Israel, Yale Kamisar, Wayne LaFave, Jerold Israel, Modern Criminal Procedure: Cases Modern Criminal Procedure: Cases, Comments and Questions Comments and Questions (6th ed., 1986), p. 21n. (6th ed., 1986), p. 21n.

30 National Center for State Courts, National Center for State Courts, State Court Caseload Statistics: Annual Report 1990 State Court Caseload Statistics: Annual Report 1990, p. 27.