Crime and Punishment in American History - Lawrence M. Friedman [124]
The three do share some common themes. When people talk about “taking the law into their hands,” they mean taking action to make sure that the law has its effect. By law they mean the substance of the law, the marrow, the meat. Lawyers and judges are obsessed with procedures; they value orderly methods, “due process,” almost for their own sake. Lay people certainly value fair trials and citizens’ rights (especially when it applies to themselves), but they tend, as well, to be substance-minded, result-minded. Law is a code of behavior, a collection of rules of conduct; procedures are only means to an end. When the rules fail to work, or when they produce what people think of as “wrong” results, or “unjust” results, there is a temptation to go private and not endure the law’s delay.
The “wrong” results in the nineteenth century came about because the official line stressed equality, fairness, classlessness. The norms of those whose voices counted wanted to suppress crime, never mind what it takes. This led people to wink at police brutality. The dualisms and compromises of enforcement of morality led to the whitecaps. The federal-state dualism led to the Ku Klux Klan. Lynching suppressed any movement, however small, that disturbed southern white supremacy, or southern “honor.” Yet the myth of due process, of equality before the law, did have some strength. It was strong enough to preserve a basic faimesss, in most aspects of ordinary trial. But it could not prevail against certain dark and passionate urges.
9
LEGAL CULTURE: CRIMES OF MOBILITY
A FUNDAMENTAL ASPECT OF AMERICAN SOCIETY IN THE NINETEENTH century was mobility—an amazing, unprecedented amount of social and physical mobility. American mobility affected every facet of society, and deeply.1
Of course, mobility is an aspect of the entire modern world—at least that part of the modem world which is actually modem; but it has always been especially true of America, and was especially true in America especially early. America was the land of mobility, above all other lands; a nation of emigrants, immigrants, migrants. Wanderers populated it; people who had uprooted themselves, shaken off clumps of their past along with chunks of their context, and moved to a new world.
There were, of course, instances of mass immigration into the country, and many examples of family immigration. Yet, on the whole, migration was and is an intensely individual experience, one that disturbs “community” at both ends of the trip. Mobility meant more than a flood of Irish and Germans and Italians and Swedes and Greeks; it was also the trek to the West, and a shuffling from one state to another, one town to another, one setting to another, one neighborhood to another—a general restlessness.
Moreover, American mobility meant more than just changing physical places; it meant climbing up or falling down the social ladder. People moved from rags to riches, and riches to rags; from narrow farm life to tumultuous city life, from working with their hands to working with their minds; from working for a boss to working for themselves; and back again. In this country, as De Toqueville noted, “great ones fall and the humble rise.”2 No formal barriers stood in the way.
The mobility of nineteenth-century America was not simply a matter of physical or social movement. Ideas and images traveled, too. In traditional society, the self was under the almost despotic rule of immediate, personal authority. The character of a boy or girl growing up in a European village, or perhaps in seventeenth-century Salem, was molded and formed inside a kind of protected cocoon. And when the self grew up and flew off into the world, it did not go very far, or look or feel very different from the people who had formed it. In a highly mobile society, even people who stay put are deeply affected: by the strangers who come and go, and by the messages that burst in, through newspapers or word of mouth.
The “modern” newspaper