Crime and Punishment in American History - Lawrence M. Friedman [154]
“Not drunk?” said the court.
“Not very drunk.”
“How drunk?”
“Well—I could see the moon.”
“It was raining hard Sunday night when I arrested that man,” said the officer.
“Six dollars or three days. Next.”17
Perhaps not all lower courts were quite so slapdash. The quality of the justice was variable. So was the quality of the justices. Many basement courts were staffed by laymen. In many states, they got their money from fees, which made some of them rapacious. In a number of jurisdictions, there were persistent rumors and complaints about justices who were ignorant and grasping. The justices in the West, by common repute, were “new, young, restive residents”; but John Wunder’s study of the justices of the peace of Washington Territory found, on the contrary, that they formed a rather “stable, established, contented group.” Most of them were “well-to-do property owners.”18 Peter Oxenbridge Thacher, judge of Municipal Court in Boston between 1823 and 1843, was “distinguished for his earnest study and thorough knowledge of the criminal law,” for his “fidelity and devotion to the arduous duties of his office,” for his integrity, and for “fearless administration of justice.” 19
Everywhere, however, the justices and petty court judges paid less attention to legal niceties than their more august colleagues. It would be an exaggeration to say that they did as they pleased; but they had a measure of discretion that came not from the law but from the fact that they dealt, on the whole, with the little man, the little woman, and, most often, with the unwanted and unwashed. One can search the statute books in vain to find banishment listed as a punishment. Nonetheless, magistrates frequently told vagrants, hoboes, petty thieves, and prostitutes simply to get out of town.20
Steinberg’s picture of the Philadelphia courts in the first half of the century and the picture of the Oakland courts in the last half are, on the surface, discordant. Was this because of the time factor? What seems more likely is that the bottom courts had a double aspect. They were an arm of the state, a part of the social control apparatus bearing down heavily on the poor, the deviant, the unattached. But they were also, at the same time, a kind of makeshift social service agency, a resource that common people could and did use to strike back at bad neighbors. A worker—or farmer, or shopkeeper—swearing out a complaint for assault and battery, or some other petty crime, in front of a police court judge, was looking for popular justice. “Petty” was not petty for him—or for the accused.21
The Middle Layer
Felony cases were, of course, handled with more care and treated more seriously than cases in the bottom courts. For these cases—burglary, robbery, arson, major fraud, manslaughter, assault, rape, and murder, among others—the law prescribed a two-stage process. First a grand jury had to indict; then a petty jury had to convict. But over the course of the century, there evolved significant deviations from this pattern. The grand jury held its ground in most states—New York, for example. In 1900, 4,473 arrested men and women were presented to the New York County grand jury, which returned 3,674 indictments.22 Twenty-three men served on the grand jury, and a new group was chosen each month. A bit of simple arithmetic shows that in this county each grand jury indicted, on average, about 300 women and men.
But in other states, the grand jury went into eclipse. Those states changed to the so-called system of informations. This was also a two-stage process. In the first stage, charges and accusations went to a “magistrate,” that is, a lower court judge, and not to a grand jury. This judge held what was called a “preliminary hearing.” He listened to what there was in the way of evidence; if he thought there was enough of a case to justify a trial, he would so hold and “bind over” the defendant to the trial court. Otherwise, the magistrate would let the defendant go. California authorized such a system in its constitution of 1879; the state did not