It was the policy of the American Civil Liberties Union (ACLU) during the 1920s to contest only those obscenity regulations that were “relied upon to punish persons for their political views.” So stated a 1928 ACLU bulletin, reiterating a position to which the organization had adhered since its formation in 1920. For the majority of the ACLU's executive board, “political views” encompassed the struggle for control of the government and the economy, but not of the body. The early ACLU was not interested in defending avant-garde culture, let alone sexual autonomy.

In November 1806, Nottinghamshire magistrate Sir Gervase Clifton was visited at his house by one of his poorer neighbours, “a pauper of the village of Wilford.” (Wilford is about three miles from Clifton village and Clifton Hall.) William Kirwin was attempting to sort out complicated domestic arrangements within the framework of the law that governed his family's life. He told the magistrate about his mother-in-law, a widow, currently living in Tollerton. “She is in a very distressed state,” he said; he and his wife wanted her to come and live with them, “so that she may be better taken care of & kept from want.” He had asked the Wilford overseer for permission to take her in but had been refused. The family had tried to help after her husband died: her son (with wife and children) had moved into her cottage on the understanding that “they would take care of her during her Life & allow her good victuals drinks firing & good cloathing.” Something had evidently gone wrong with that arrangement, but we are not to know what, or how, as the entry in Clifton's notebook breaks off here (as is the case with many pieces of magisterial business he recorded). Kirwin was aware of local ratepayers and tensions between parishes in regard to their financial responsibilities under the old Poor Law: what he proposed would keep his mother-in-law from “troubling the … parish of Wilford,” he said. She was financially independent, or at least on marriage she had “brought a many good with her & such as a beds & other goods.” He knew that a justice of the peace was a point of appeal in the vast, complex edifice of ancient statutory law (poor and settlement law) that dictated the way he lived his life. We can discern something of William Kirwin's understanding of these matters from the fragmentary, incomplete account of what he said, and the strategies he used in telling his story; we can discern some of Sir Gervase's from the action he did not take in this case, and what he did not have his clerk record.

Assault is a commonplace crime with uncommon potential for shedding light on the American criminal justice system. It lives on the periphery of American legal historiography, and yet, because of the ubiquity of small-scale violence, it has for centuries been a perennial and pesky nuisance threatening to overwhelm courts everywhere. Perched between private and public, criminal and civil, and bound to questions of governance and the rule of law, assault can no longer be ignored. Because of its nature as both a civil action and criminal offense, assault presents an opportunity to capture the evolving meanings of “public” and “private.” To what extent an assault was “criminal” hinged upon whether the “public” had an interest in the case, a criterion both amorphous and politically charged.1 At the time of William Blackstone's writing in eighteenth-century England, assault was criminal insofar as it constituted a breach of the public peace, an insult to the king, and a threat, by its “evil example,” to the public at large. By the 1850s, much had changed. Two major figures in American criminal justice law, Joel Bishop and Francis Wharton, declared that assault's status as a crime no longer depended upon some ineffable public harm. Rather, it was the individual injury to a member of the public that constituted its chief criminal component. But this individuated logic also meant that, barring sufficiently severe or shocking injury, newly empowered members of the public could be entrusted to sort out matters on their own. This article contends that a changing view of criminal justice—an underlying “public” transformed from a paternalistically governed, impressionable populace to a group of independent persons—gave violence a much wider legal legitimacy.

As with other pillars of the Scottish criminal justice system, the distinctiveness of the Scottish police model from its English counterpart has been widely acknowledged. Its historical development, institutional structure, and level of community support have been portrayed as unique in the United Kingdom. Although rarely heralded as a symbol of national identity in the same way as the Church of Scotland or the legal system, the Scottish police's distinctive customs, traits, and practices have been held up in some studies as a badge of national pride. Often this is for no significant reason other than the fact that police reform in Scotland predated similar developments in England. Municipal police administration has also been depicted as an important symbol of the self-governing nature of Scottish civil society, conferring upon local authorities a wide range of autonomous powers and strengthening their bargaining position with central government in Westminster in London.

At 5:45 p.m. on Thursday, June 17, 1943, New Orleans police patrolman John Licali fatally shot 29-year-old Felton Robinson, an unemployed presser. A few minutes earlier, a neighbor had heard a disturbance in the backyard of Robinson's Loyola Street home and had alerted the Twelfth Precinct police station, which dispatched officers Licali and Emile Eskine to investigate. When they arrived, however, they found no signs of disorder. The policemen asked “was there any trouble,” and Robinson answered “no” and invited the officers to come to the back of the small house and “see my wife.” Veola Robinson, who was casually ironing clothes, explained that she and her husband (both of whom were African-American) had argued a short time earlier about purchasing an automobile. Felton Robinson, the woman added, suffered from “spells” and the effects of a “nervous breakdown,” and he had been “cursing and getting boisterous,” prompting the neighbor to summon the police. But the argument had quickly subsided. Licali and Eskine found Robinson to be quiet and peaceful, and the officers, persuaded that the minor domestic quarrel had ended, left the house. As Eskine entered the patrol car, Licali, a few steps behind his partner, turned to Robinson and admonished him “to keep quiet [because] if he talked loud again some of the neighbors might think he is fighting with his wife and call the police again, and they would have to come back again.” Then, according to the officers' report, “without provocation Felton Robinson suddenly attacked Patrolman John Licali,” grabbing the policeman's right arm, dragging him back into the house, hurling him to the floor, and throwing a glass bowl at him. When Robinson “went to the dresser and opened a drawer,” Licali believed that the violent, deranged man was securing a weapon, and the policeman drew his .38 caliber service revolver and fired three shots. In his report, Licali explained that he “was forced to shoot Felton Robinson in defense of his own life.”

Section 54 (11) of the Metropolitan Police Act 1839 criminalized the act of a common prostitute causing annoyance by soliciting in public.2 For the police to implement this legislation was no simple matter, as no definition of “prostitute,” or indeed “annoyance,” was scribed in statute law. Although common law aided the interpretation of this offense—the case of Rex v. de Munck (1918): “We are of the opinion that prostitution is proved if it is shown that a woman offers her body commonly for lewdness of payment in return”3—in practice, identifying a “common prostitute” and defining “annoyance” was left to the discretion of the individual police officer. Although specific squads were deployed to target streetwalkers in West End police divisions, where the presence of prostitutes was more likely to cause public offense, a “blind eye” was often turned to women soliciting in the less salubrious streets of the metropolis. Local knowledge gained on the beat and the informal advice of colleagues shaped an unofficial police policy of containment and toleration.4

The preceding narrative is, in many ways, illustrative of the complex and contradictory phenomenon of infanticide in the district of Montreal during the first half of the nineteenth century. Although notices regarding the finding of infant bodies were frequent, discovery of twin infant bodies was not. This account was also unconventional in its tone: lacking the usual sterile narration typical of newspaper coverage of that topic, it cried out for the apprehension of the “perpetrator of so foul a deed.” Although the call for justice might have appeared strong, infanticide prosecutions were fairly rare and convictions rarer still. The prevalent view might have been to characterize the responsible party as an “unfeeling mother,” but the reality surrounding infanticide was altogether more complicated, yet fully as tragic.