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Law, Police, and the Pursuit of Happiness in the New American Republic

Published online by Cambridge University Press:  16 December 2008

Christopher L Tomlins
Christopher L Tomlins
Affiliation:
American Bar Foundation and La Trobe University
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Extract

On 1 June 1779, Thomas Jefferson became the second governor of the state of Virginia. Shortly thereafter, he was elected to the Board of Visitors of the College of William and Mary where he pursued a series of educational innovations that he had unsuccessfully promoted earlier while engaged in his mammoth revision of the laws of Viriginia. The goal of Jefferson's proposed educational reforms was the creation of an educational system which would be a training ground for republican citizenship. It is therefore of interest that among the innovations he pressed on the College of William and Mary was the establishment of the first chair of law in North America—indeed the first chair anywhere after the Vinerian chair at Oxford. What is of greater interest, however, is that the chair that Jefferson pioneered was not a chair of law, as such, but a chair of “Law and Police.”

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Articles
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Studies in American Political Development , Volume 4 , Spring 1990 , pp. 3 - 34
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Copyright © Cambridge University Press 1990

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References

1. Dill, Alonzo T., George Wythe: Teacher of Liberty (Williamsburg: Virginia Independence Bicentennial Commission, 1979), 4–42. I am indebted to David Konig for drawing the full title of Wythe's foundation chair to my attentionGoogle Scholar.

2. Ferguson, Robert A., Law and Letters in American Culture (Cambridge: Harvard University Press, 1984), 11Google Scholar.

3. See, for example, Liebman, Robert and Polen, Michael, “Perspectives on Policing in Nineteenth-Century America”, Social Science History 2(3):346–60 (01 1978)CrossRefGoogle Scholar.

4. See, for example, Lane, Roger, Polking the City: Boston, 1822–1885 (Cambridge: Harvard University Press, 1967)CrossRefGoogle Scholar; Richardson, James F., Urban Police in the United States (Port Washington, New York: Kennikat Press, 1974)Google Scholar; Miller, Wilbur R., Cops and Bobbies: Police Authority in New York and London, 1830–1870 (Chicago: University of Chicago Press, 1977)Google Scholar; Monkkonen, Eric H., Police in Urban America, 1860–1920 (Cambridge: Cambridge University Press, 1981)Google Scholar. For the Johnson, quotation, see A Dictionary of the English Language, vol. 2(London, 1755)Google Scholar, unpaginated; for Webster, , see An American Dictionary of the English Language vol. 2 (New York, 1828), unpaginatedGoogle Scholar.

5. See, for example, Liebman and Polen, “Perspectives on Policing”, 346—60; Friedman, Lawrence, “The Long Arm of the Law”, Reviews in American History 6(1):225–28 (03 1978)CrossRefGoogle Scholar; Walker, Samuel, “Counting Cops and Crime”, Reviews in American History 10(2):212–17 (06 1982)CrossRefGoogle Scholar; Brogden, Michael, “The Emergence of the Police—The Colonial Dimension”, British Journal of Criminology 27(1):5–17 (Winter 1987)CrossRefGoogle Scholar.

6. Tribe, Keith, “Introduction to Knemeyer”, Economy and Society 9(2): 168—71 (05 1980)CrossRefGoogle Scholar.

7. See, for example, Kloppenberg's, James T. critical survey “The Virtues of Liberalism: Christianity, Republicanism and Ethics in Early American Political Discourse”, Journal of American History 74(1):9–33 (06 1987)CrossRefGoogle Scholar. Earlier surveys include Shalhope, Robert E., “Toward a Republican Synthesis: The Emergence of an Understanding of Republicanism in American Historiography”, William and Mary Quarterly 3d ser, 29(1):49–80 (01 1972)CrossRefGoogle Scholar, and “Republicanism and Early American Historiography”, William and Mary Quarterly, 3d ser., 39(3):334–56 (July 1982); Banning, Lance, “Jeffersonian Ideology Revisited: Liberal and Classical Ideas in the New American Republic,” and Joyce Appleby, “Republicanism in Old and New Contexts”, both in William and Mary Quarterly 3d ser., 43(1):3–19 and 20–34 (01 1986)CrossRefGoogle Scholar.

8. By law, I mean the array of ideas and institutions embodying the key elements in the process of state formation in the new republic in the half century after the Revolution: the ideology of limited government, the protection of property, and judicial ascendancy. See, generally, White, G. EdwardThe Marshall Court and Cultural Change, 1815–1835 (New York: Macmillan, 1988), 76–156Google Scholar, 195–200. The meaning of police is explored at length in the course of this essay. The existence of two such paradigms is acknowledged, at least implicitly, by Robert Ferguson. “Conservative members of the early American bar all believed in what they called ‘an empire of laws, not of men’. Their republic enshrined the law of nature, a rule of right and reason, within organs of government that protected the rights of men against the encroachment of minorities and majorities. … From the beginning, however, another theory of republicanism influenced postrevolutionary politics. This second theory looked to the inalienable power of the people as the source of all government”. See his Law and Letters in American Culture, 278. See also Ellis, Richard E., The Jeffersonian Crisis: Courts and Politics in the Young Republic (New York: Oxford University Press, 1971), 250–84Google Scholar; Scheiber, Harry, “Public Rights and the Rule of Law in American Legal History”, California Law Review 72(2):217–51 (03 1984)CrossRefGoogle Scholar. In Europe, the competing paradigms were delineated rather more starkly: “Rule of law and rule of police are two different ways to which history points, two methods of development between which peoples must choose and have chosen.” Eduard Lasker, quoted inReddy, William M., Money and Liberty in Modern Europe: A Critique of Historical Understanding (Cambridge: Cambridge University Press, 1987), 16CrossRefGoogle Scholar. See also Kaplan, Steven L.Bread, Politics and Political Economy in the Reign of Louis XV (The Hague: Martinus Nijhoff, 1976) for a pointed discussion of the distinction between police and the political economy of laissez-faireCrossRefGoogle Scholar. Separable though these discourses of law and police undoubtedly are, one should hesitate to insist on too rigid a separation. As we shall see, the issue ultimately is more one of hegemony. Which discourse shall establish the intellectual and political context within which the other must exist?

9. Appleby, Joyce, “What Is Still American in the Political Philosophy of Thomas Jefferson?” William and Mary Quarterly 3d ser., 39(2):295 (04 1982)CrossRefGoogle Scholar.

10. Nedelsky, Jennifer, “Confining Democratic Politics: Anti-Federalists, Federalists, and the Constitution”, Harvard Law Review 96(2):340–60 (11 1982)CrossRefGoogle Scholar.

11. Carson, W. G., “Policing the Periphery: The Development of Scottish Policing 1795–1900, Part I”, Australian and New Zealand Journal of Criminology 17(4):210 (12 1984). See also, generally, his ”Policing the Periphery: The Development of Scottish Policing 1795–1900, Part II,” Australian and New Zealand Journal of Criminology 18(1):3–16 (March 1985)CrossRefGoogle Scholar.

12. Smith, Adam, Lectures on Jurisprudence edited by Meek, R. L., Raphael, D. D., and Stein, P. G. (Oxford: Oxford University Press, 1978), 333–34Google Scholar.

13. Michael Ignatieff and Istvan Hont, “Needs and Justice in The Wealth of Nations: An Introductory Essay,” in Ignatieff, Michael and Hont, Istvan, eds., Wealth and Virtue: The Shaping of Political Economy in the Scottish Enlightenment (Cambridge: CambridgeUniversity Press, 1983), 13–15, 18–19Google Scholar.

14. Thompson, E. P., “The Moral Economy of the English Crowd in the Eighteenth Century”, Past and Present 50 (02 1971): 129–31CrossRefGoogle Scholar.

15. Steven L. Kaplan, Bread, Politics and Political Economy 12.

16. Knemeyer, Franz-Ludwig, “Polizei,” Economy and Society 9(2): 174, 176 (05 1980)CrossRefGoogle Scholar.

17. Walker, Mack, “Rights and Functions: The Social Categories of Eighteenth-Century German Jurists and Cameralism” Journal of Modern History 50(2):241 (06 1978)CrossRefGoogle Scholar.

18. Knemeyer, “Polizei”, 178.

19. Raeff, Marc, “The Weil-Ordered Police State and the Development of Modernity in Seventeenth- and Eighteenth-Century Europe”, American Historical Review 80(5): 1221–43 (12 1975)CrossRefGoogle Scholar. See also his The Well-Ordered Police State: Social and Institutional Change through Law in the Germanies and Russia, 1600—1800 (New Haven: Yale University Press, 1983); Walker, Mack, Johann Jakob Moser and the Holy Roman Empire of the German Nation (Chapel Hill: University of North Carolina Press, 1981), 199–208Google Scholar.

20. Pasquale Pasquino, ”Theatrum Politicum: The Genealogy of Capital—Police and the State of Prosperity,“ Ideology and Consciousness 4 (1978):47.

21. Raeff, “The Well-Ordered Police State”, 1235. Delamare, says Kaplan, “tried to place the full range of options, strategies, precedents and laws, along with explicit instructions on how to use them in different circumstances, at the disposition of all public authorities.” The Traite de Police was “a staggering monument to the range, complexity, and pretension of the police enterprise”, an intellectual foundation for the conceptualization of police as “the science of governing men”. See Kaplan, Bread, Politics and Political Economy, 13. Similarly, Walker defines cameralism as ”the science of administrative economy”. See his Johann Jakob Moser,88. In this context, it is pertinent to note Herbert Baxter Adams's stress on the contribution of Jefferson's curricular innovations at William and Mary to the teaching of the “science of administration.”See Adams, , “The College of William and Mary: A Contribution to the History of Higher Education”, in Circulars of Information of the Bureau of Education no.1 (Washington: Bureau of Education, 1887), 39Google Scholar.

22. Quoted in Pasquino, “Theatrum Politicum”, 45 (emphasis added).

23. Ibid., 45. See, however, Kaplan, Bread, Politics and Political Economy 13.

24. Quoted in Reddy, Money and Liberty in Modern Europe 16.

25. Walker, “Rights and Functions” 241.

26. Kaplan, Bread, Politics and Political Economy,–xxvi.

27. Quoted in Reddy, Money and Liberty in Modern Europe, 16.

28. Warden, G. B., ”Inequality and Instability in Eighteenth Century Boston: A Reappraisal” Journal of Interdisciplinary History 6(4):614 (01 1976)CrossRefGoogle Scholar. See also Blake, John B., Public Health in the Town of Boston, 1630–1822 (Cambridge: Harvard University Press, 1959), 1–116Google Scholar. And see Nelson, William E., Dispute and Conflict Resolution in Plymouth County, Massachusetts, 1725–1825 (Chapel Hill: University of North Carolina Press, 1981)Google Scholar.

29. Isaac, Rhys, The Transformation of Virginia, 1740–1790 (Chapel Hill: University of North Carolina Press, 1982), 347Google Scholar and 115–38. See also Isaac's, “Order and Growth, Authority and Meaning in Colonial New England”, American Historical Review 76(3):728–37(06 1971)CrossRefGoogle Scholar. On the persistence of communitarianism into the Revolutionary era, see Countryman, Edward, The American Revolution (New York: Hill and Wang, 1985)Google Scholar; Wood, Gordon S., The Creation of the American Republic, 1776–1787 (Chapel Hill: University of North Carolina Press, 1969), 53–70, 114–24Google Scholar.

30. Innes, Stephen, Labor in a New Land: Economy and Society in Seventeenth Century Spring-field (Princeton: Princeton University Press, 1983), xv–xxiGoogle Scholar.

31. Zuckerman, Michael, Peaceable Kingdoms: New England Towns in the Eighteenth Century (New York: Knopf, 1970), 51Google Scholar.

32. Ibid., 65 (emphasis added), 85.

33. Isaac, The Transformation of Virginia, 11–38.

34. Countryman, The American Revolution 32.

35. Isaac, The Transformation of Virginia, 64—65.

36. Ibid., 20–21, 39–42, 344–49. See, generally, Demos, John, A Little Commonwealth: Family Life in Plymouth Colony (New York: Oxford University Press, 1970)Google Scholar; Greven, Philip J. Jr, Four Generations: Population, Land, and Family in Colonial Andover, Massachusetts (Ithaca, N.Y.: Cornell University Press, 1970)Google Scholar; Yazawa, Melvin, From Colonies to Commonwealth: Familial Ideology and the Beginnings of the American Republic (Baltimore: Johns Hopkins University Press, 1985)Google Scholar.

37. Grossberg, Michael, Governing the Hearth: Law and the Family in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1985), 4Google Scholar.

38. Yazawa, From Colonies to Commonwealth, 2, 12.

39. Ibid., 22. See also Kaplan, Bread, Politics and Political Economy, 5–7.

40. Yazawa, From Colonies to Commonwealth, 22–23, 26.

41. Crowley, J. E., This Sheba, Self: The Conceptualization of Economic Life in Eighteenth-Century America (Baltimore: Johns Hopkins University Press, 1974), 96—97Google Scholar.

42. Greene, Jack P., “Search for Identity: An Interpretation of the Meaning of Selected Patterns of Social Response in Eighteenth-Century America” Journal of Social History 3(3): 194 (01 1970)CrossRefGoogle Scholar.

43. See, for example, Countryman, The American Revolution,41—73.

44. Hartog, Hendrik, “Losing the World of the Massachusetts Whig”, in Hartog, Hendrik, ed., Law in the American Revolution and the Revolution in the Law (New York: New York University Press, 1981), 143–66Google Scholar. See, generally, Reid, John P., In A Defiant Stance: The Conditions of Law in Massachusetts Bay, the Irish Comparison, and the Coming of the American Revolution (University Park: Pennsylvania State University Press, 1977)Google Scholar.

45. See, for example, Styles, John, “The Emergence of the Police—Explaining Police Reform in Eighteenth and Nineteenth Century England”, British Journal of Criminology 27(1):21–22 (Winter 1987)CrossRefGoogle Scholar.

46. Yazawa, From Colonies to Commonwealth, 87—135; Hartog, “Losing the World of the Massachusetts Whig”, 158–66.

47. Lockridge, Kenneth A., Settlement and Unsettlement in Early America: The Crisis of Political Legitimacy Before the Revolution (Cambridge: Cambridge University Press, 1981), 4, 7–104Google Scholar.

48. Hartog, “Losing The World of the Massachusetts Whig”, 147.

49. Lockridge, Settlement and Unsettlement in Early America,103.

50. Wood, The Creation of the American Republic, 76; Lockridge, Settlement and Unsettlement in Early America, 46–49, 102–4. Ronald P. Formisano writes of prerevolutionary Massachusetts: “To speak of eighteenth-century Massachusetts political culture is to invoke a realm of thought and activity in which very few persons actually dwelt. Those few were a select group, drawn largely from the colony's gentry and leaders”. See his The Transformation of Political Culture: Massachusetts Parties, 1790s–1840s (New York: Oxford University Press, 1983), 25.

51. Hartog, “Losing the World of the Massachusetts Whig”, 153. See also Countryman, The American Revolution, 74–104; Hoerder, Dirk, Crowd Action in Revolutionary Massachusetts, 1765–1780 (New York: Academic Press, 1977), 40–84Google Scholar.

52. “Popular sovereignty, the location in the people themselves of the ultimate decision-making authority for the new nation… [w]as the decisive achievement of the American political imagination”. Kloppenberg, “The Virtues of Liberalism,” 24. Thus, we find the Bostonian Benjamin Hichborn in 1777 defining civil liberty to be “not ‘a government by laws,’ made agreeable to charters, bills of rights, or compacts, but a power existing in the people at large, at any time, for any cause, or for no cause, but their own sovereign pleasure, to alter or annihilate both the mode and essence of any former government, and adopt a new one in its stead.” Quoted in McDonald, Forrest, Novus Ordo Seclorum: The Intellectual Origins of the Constitution (Lawrence: University Press of Kansas, 1985), 158Google Scholar. See also Meyer, Donald H., The Democratic Enlightenment (New York: Putnam, 1976), 150—51Google Scholar, on the demystification of government.

53. Thus note, for example, the assumption of police powers by the popular committees which took and wielded public power in so many localities during the Revolution. See Adams, Willi-Paul, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era (Chapel Hill: University of North Carolina Press, 1980), 35Google Scholar; Brown, Richard D., Revolutionary Politics in Massachusetts: The Boston Committee of Correspondence and the Towns, 1772–1774 (Cambridge: Harvard University Press, 1970), 210–47Google Scholar; Handlin, Oscar and Handlin, Mary Flug, Commonwealth. A Study of the Role of Government in the American Economy: Massachusetts, 1774—1861 (Cambridge: Harvard University Press, 1969), 1–31Google Scholar; Hoerder, Crowd Action in Revolutionary Massachusetts, 311–89.

54. “Petitions for City Incorporation” (May 1784, October 1785, December 1791), and “Report of a Committee Relative to Police” (January 1792), in Boston Towncords (Rare Books and Manuscripts Division, Boston Public Library). See also Report of the Record Commissioners of the City of Boston, vol. 25 (Boston, 1887–), “Selectmen's Minutes 1776–86,” 292, 295, 303; and vol. 27, “Selectmen's Minutes, 1787–98,” 104, 156, 197.

Roger Lane has noted that the first official use of the term police in New York occurred in 1778 with the appointment by the British occupation forces of a “Superintendent General of the Police,” with supreme authority over “all … matters, in which the economy, peace, and good order of the City of New York and its environs are concerned.“ He adds, cryptically, that “unofficial use in the same period is often quite confusing.” See his Policing the City, 249 n. 2.

55. Adams, The First American Constitutions 135–36.

56. “Boston's Instructions to its Representatives” (30 May 1776), in Report of the Record Commissioners of the City of Boston, vol. 18 (Boston, 1887–), “Town Records, 1770–77,” 236–39.

57. Storing, Herbert J., ed., The Complete Anti-Federalist vol. 2 (Chicago: University of Chicago Press, 1981), 223–30CrossRefGoogle Scholar.

58. Later constitutional commentary on the police power underscores this, while simultaneously representing the police power as a nineteenth-century doctrinal innovation pioneered by the leading federal and state judiciary as “a branch of constitutional law peculiar to countries having legislatures with limited power.… an outgrowth of the American conception of protecting the individual from the state.” Hastings, W. G., “The Development of Law as Illustrated by the Decisions relating to the Police Power of the State”, Proceedings of the American Philosophical Society 39(163):360 (07–09 1900)Google Scholar. Thus, according to Hare's, J. I. C.American Constitutional Law, vol. 2 (Boston: Little, Brown and Company, 1889), 766Google Scholar, “the police power may be justly said to be more general and pervading than any other. It embraces all the operations of society and government.” Such commentary confirms the conceptual provenance of police in the communal responsibility for the production of good order which characterized prerevolutionary society by emphasizing its priority over individual rights. “The recognition that there exist rights of life, liberty, property and happiness which are possessed by the individual and which are guaranteed against arbitrary and unreasonable invasion by other persons, public or private, does not imply that these rights are absolute in character.… This is so for the reason that, more fundamental than the right of the private individual, is the right of the public person, the State, and, more important than the convenience or even the existence of the citizen, are the welfare and life of the civic whole.” Willoughby, Westel W., The Constitutional Law of the United States vol. 3 (New York: Baker, Voorhis, 1929), 1588Google Scholar.

59. Wood, The Creation of the American Republic 306–89. See also Epstein, David F., The Political Theory of the Federalist (Chicago: University of Chicago Press, 1984)Google Scholar.

60. “Letters From the Federal Farmer” (8 October 1787), in Storing, ed., The Complete Anti-Federalist, vol. 2, p. 229 (emphasis in original).

61. Publius (James Madison), The Federalist, no. 45, in Kaminski, John P. et al. , eds., The Documentary History of the Ratification of the Constitution 15 (Madison: State Historical Society of Wisconsin, 1984), 476–77Google Scholar.

62. “Madison …believed in an elite of the wise and the virtuous, whose government would be best. He hoped that enlarging the size of the body politic by creating an effective national government over the states would help ensure that members of this elite would be elected as rulers. Enlarging the commonwealth would also, he hoped, so multiply selfish special interests and their political expression in ‘factions’ that they would cancel each other out, leaving the wise and virtuous to govern in the interest of the community as a whole.… The rhetorical strategy of The Federalist Papers is to appeal, on behalf of virtue, to the enlightened self-interest of this group of prudent men against the danger of the mob, the factious and passionate.” Howe, Daniel Walker, “European Sources of Political Ideas in Jeffersonian America”, Reviews in American History 10(4):37 (12 1982)CrossRefGoogle Scholar.

63. James Madison to Thomas Jefferson (17 October 1788), in Hunt, Gaillard, ed., James Madison: Writings vol. 5 (New York: G. P. Putnam's Sons, 1904), 272 (emphasis in original). David Epstein concludes that “the object of ‘safety’ is the dominant element in The Federalist's understanding of the public good.” As Hamilton was to put it in no. 70, the public interest required “protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice.” Hamilton and Madison made it quite clear, moreover, that it was to be the role of the judiciary to act as that protective guarantor through comprehensive powers of review. See Epstein, The Political Theory of the Federalist 163, 172, 185–92Google Scholar.

64. Adams, The First American Constitutions, 218–19, 223.

65. Appleby, Joyce, Capitalism and a New Social Order: The Republican Vision of the 1790s (New York: New York University Press, 1984), 16–23Google Scholar.

66. Ibid., 25–50.

67. Hont and Ignatieff, “Needs and Justice in the Wealth of Nations,” 4–5.

68. Ibid., 20–26, 11.

69. Appleby, Capitalism and a New Social Order, 83. And see Reddy, Money and Liberty in Modern Europe,78–81.

70. Nicholas Phillipson, “The Scottish Enlightenment,” in Porter, Roy and Teich, Mikulas, eds., The Enlightenment in National Context (Cambridge: Cambridge University Press, 1981), 22, 36CrossRefGoogle Scholar.

71. Just how much the case this was in Smith's own regional backyard is powerfully illustrated by W. G. Carson. See his “Policing the Periphery: The Development of Scottish Policing 1795–1900,” especially part 2.

72. Hont and Ignatieff, “Needs and Justice in the Wealth of Nations,”24–25.

73. SirBlackstone, William, Commentaries on the Laws of England vol. 4 (Chicago: University of Chicago Press, 1979), 162–75, 127–62Google Scholar.

74. SeeTerrill, R. J., “Police Theorists and the Enlightenment” Anglo-American Law Review 13(4):39–55 (10–12 1984)CrossRefGoogle Scholar.

75. Colquhoun, Patrick, Observations and Facts Relative to Public Houses: Interesting to Magistrates in Every Part of Great Britain … By a Magistrate (London, 1796), 5Google Scholar; and Colquhoun, Patrick, A Treatise on the Police of the Metropolis (London: by H. Fry for C. Dilly, 1796), 18Google Scholar.

76. Colquhoun, A Treatise on the Police of the Metropolis, 380. See also Hanway, Jonas, The Defects of Police the Cause of Immorality (London: J. Dodsley, 1775)Google Scholar; and The Citizen's Monitor: Shelwing the Necessity of a Salutary Police (London,1780).

77. Colquhoun, Patrick, A Treatise on Indigence (London: for J. Hatchford, 1806), 82, 9; and see, generally, 80–109Google Scholar.

78. Colquhoun's;concern with maximizing the mobilization of labor appeared as fullblown political economy in his Treatise on the Wealth, Power, and Resources of the British Empire (London: J. Mawman, 1814). On Colquhoun as political economist, see Berg, Maxine, The Machinery Question and the Making of Political Economy, 1815–1848 (Cambridge: Cambridge University Press, 1980), 79CrossRefGoogle Scholar.

79. Phillipson, “The Scottish Enlightenment, ” 39–40. See also John Stevenson, “Social Control and the Prevention of Riots in England, 1788–1829, ” and A. P. Donajgrodzki, “‘Social Police’ and the Bureaucratic Elite: A Vision of Order in the Age of Reform,” both in Donajgrodzki, A. P., ed., Social Control in Nineteenth Century Britain (London: Croom Helm, 1977), 27–50 and 51–76; Jeremy N. J. Palmer, “Evils Merely Prohibited: Conceptions of Property and Conceptions of Criminality in the Criminal Law Reform of the English Industrial Revolution,” British Journal of Law and Society 3 (Summer1976): 1—16; Thompson, ”The Moral Economy of the English Crowd,” 129–31Google Scholar.

80. See, generally, David Philips, “ 'A New Engine of Power and Authority': The Institutionalization of Law-Enforcement in England, 1780–1830,” in Gatrell, V. A. C. et al. , eds., Crime and the Law: The Social History of Crime in Western Europe Since 1500 (London: Europa Publications, 1980), 155–89Google Scholar. See also Allan Silver, “The Demand for Order in Civil Society: A Review of Some Themes in the History of Urban Crime, Police, and Riot,” in Bordua, David J., ed., The Police: Six Sociological Essays (New York: Wiley, 1967), 1–24Google Scholar; Storch, Robert D., “The Plague of the Blue Locusts: Police Reform and Popular Resistance in Northern England, 1840–57”, International Review of Social History 20(1):61–90 (1975), and “The Policeman as Domestic Missionary: Urban Discipline and Popular Culture in Northern England, 1850–1880,” Journal of Social History–9(4):481–509 (June–1976)CrossRefGoogle Scholar; Brogden, Michael, ”An Act to Colonise the Internal Lands of the Island: Empire and the Origins of the Professional Police,” International Journal of the Sociology of Law 15(2):179–208 (05 1987)Google Scholar.

81. Adams, The First American Constitutions, 188.

82. Matthews, Richard K., The Radical Policies of Thomas Jefferson: A Revisionist View (Lawrence: University Press of Kansas, 1984), 37, 64, 122Google Scholar.

83. Ibid., 40–42, 50, 122.

84. Ibid., 19–29, 50, 52. On 6 September 1789, Jefferson wrote to James Madison as follows: “No society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation. They may manage it then, and what proceeds from it, as they please, during their usufruct. They are masters too of their own persons, and consequently may govern them as they please. But persons and property make the sum of the objects of government. The constitution and the laws of their predecessors extinguished theri in their natural course with those who gave them being. This could preserve that being till it ceased to be itself and no longer. Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.” In Boyd, Julian P., ed., The Papers of Thomas Jefferson vol. 15 (Princeton: Princeton University Press, 1950–82), 395–96Google Scholar.

85. Appleby, “What Is Still American in the Political Philosophy of Thomas Jefferson?” 297, 300. Such is Appleby's commitment to this position that within the space of four pages of this article, she transforms Jefferson from an acknowledged opponent of government protection of property to its ardent supporter. See p. 297 and compare p. 301.

86. Matthews, The Radical Politics of Thomas Jefferson 12, 81.

87. Discussing the revision of the laws in his Autobiography, Jefferson had this to say (in Boyd, ed., The Papers of Thomas Jefferson, vol. 2, p. 308):

88. Isaac, The Transformation of Virginia, 294.

89. Thomas Jefferson to John Tyler (26 May 1810), in Lipscomb, Andrew A., ed., The Writings of Thomas Jefferson, vol. 11 (Washington: Thomas Jefferson Memorial Association, 1905), 391–94. According to Herbert Baxter Adams, Jefferson's 1779 bill for a general system of education was “the historical basis of all that Jefferson subsequently accomplished for the educational cause in Virginia, ” and was “closely allied to his cherished scheme for local self-government.” See Adams, “The College of William and Mary,” 37Google Scholar.

90. The polity Jefferson sought, although decentralized, was by no means a decentered one. “General orders are given out from a centre to the foreman of every hundred, as to the sergeants of an army, and the whole nation is thrown into energetic action, in the same direction in one instant and as one man, and become absolutely irresistible.” Jefferson to Tyler (26 May 1810) in Lipscomb, ed., The Writings of Thomas Jefferson, 143. Crucially, however, it was a participatory structure. “While many theorists and politicians wanted to keep ‘the people’ out of the political process, Jefferson felt it to be crucial—for both the individual and the community—that all citizens become intimately involved in public life.” Matthews, The Radical Politics of Thomas Jefferson, 95. See also Caldwell, Lynton K., The Administrative Theories of Hamilton and Jefferson: Their Contribution to Thought on Public Administration (Chicago: University of Chicago Press, 1944), 142Google Scholar.

91. Isaac, The Transformation of Virginia, 293.

92. Thomas Jefferson to Joseph C. Cabell (2 February 1816), in Peterson, ed., Thomas Jefferson: Writings,1380.

93. Take, for instance, Rhys Isaac's comments on Jefferson's original proposals for a general education system in The Transformation of Virginia, 295—96: Hierarchy was given both symbolic and functional form in [his] arrangement of things. Over regional groupings of the local “hundred” schools, where poor children could get three years of free instruction toward basic literacy, were set grammar schools for the sons of the gentry, and for one poor boy (the most promising) per year from each of the elementary schools. Half of these scholarship boys were to be sent home after one year; all bar one were to be dismissed at the end of the second year. From among those who survived this drastic pruning, one in the whole of Virginia was to be chosen annually ”to proceed to William and Mary College, there to be “educated, boarded, and clothed, three years.”

94. Adams, “The College of William and Mary,” 38.

95. Appleby, Capitalism and a New Social Order, 92.

96. Greene, Jack P., All Men Are Created Equal: Some Reflections on the Character of the American Revolution (Oxford: Clarendon Press, 1976), 9–10Google Scholar.

97. “This was the logic behind the innovation of constitution-making through conventions. The sovereign people convened to draw up the fundamental law, then adjourned to place themselves under that institutionalized authority.” Yazawa, From Colonies to Commonwealth, 113. On the postrevolutionary triumph of a distinctively legal culture of power, see Roeber, A. G., Faithful Magistrates and Republican Lawyers: Creators of Virginia Legal Culture, 1680–1810 (Chapel Hill: University of North Carolina Press, 1981), 231–61Google Scholar; and Miller, Perry, The Life of the Mind in America: From the Revolution to the Civil War (New York: Harcourt, Brace and World, 1965), 99–265Google Scholar.

98. See, for example, McDonald, Novus Ordo Seclorum, 3–4, 155–62.

99. Nedelsky, “Confining Democratic Politics,” 341. On suffrage restrictions and the limitation of representation in the interests of protecting property, see Matthews, The Radical Politics of Thomas Jefferson, 98–108, and Adams, The First American Constitutions196–217. On the radically enhanced role of the judiciary, see Wood, Creation of the American Republic, 453–63. See, also, Caldwell, The Administrative Theories of Hamilton and Jefferson, 155–58. Massachusetts' “village Hampden” and staunch Jeffersonian, William Manning, wrote in 1798 (original spelling): It is the bisness and duty of the Lejeslative Body to determine what is Justis or what is Right & Rong, & the duty of every individual in the nation to regulate his conduct according to their detisions. And if the Many were always fully and fairly represented in the Lejeslative Body they neaver would be oppressed or find fault so as to trouble the Government, but would always be zelous to seport it. The Reasons why a free government has always failed is from the unreasonable demands and desires of the few. They cant bare to be on a leavel with their fellow cretures, or submit to the determinations of a Lejeslature whare (as they call it) the Swinish Multitude are fairly represented, but sicken at the eydea, & are ever hankering and striving after Monerca or Aristocracy whare the people have nothing to do in matters of government but to support the few in luxery & idleness.… Free governments are commonly destroyed by a combination of the Juditial & Executive powers in favour of the interests of the few, and they do it by construing & explaining away the true sence and meaning of the constitutions and laws, & so raise themselves above the Lejeslative power, & take the hole Administration of Government into their own hands, & manige it according to their own wills. The Free Republican in N° 9 saith that in many of the antiant Republicks the Juditial power became the mear instruments of tirony, & proposes lawyors as a nesecary ordir in a free government, to curbe the arbitrary will of the Judge. But that appears to me like seting the Cat to watch the Creem pot. Manning, William, The Key of Libberty: Shewing the Causes why a Free Government has always failed, and a Remidy against it (written in the year 1798, published by the Manning Association, Billerica, Massachusetts, 1922), 18, 30Google Scholar.

100. As in England, such an approach tended to result in the realignment of police as a concept, with the promotion of a market economy rather than communal affection and self-restraint. Thus, if we take Colquhoun's recommendations for an effective police of indigence and look for parallels, we find that in Massachusetts over the last third of the eighteenth century the emphasis of the poor laws shifted away from the principle of local relief of local paupers, a policy that protected the stability and integrity of local communities from transients, toward a policy much more facilitative of a “free circulation” of labor. By the early nineteenth century, these innovations were complemented by proposals in Boston for the creation of a system of “eleemosynary police,” based on the assignment of a constable to each ward and a central office to which they would report, enabling city government to keep an accurate account of the scope of poor relief. “Is it not probable, that by some such regulation, better order would be preserved, street-begging be suppressed, the circumstances of the poor be better known and sooner relieved, the utility of charitable societies promoted, and the benefits of a good police be more adequately distributed?” See Miscellaneous Remarks on the Police of Boston (Boston, 1814), 3–5, 40–42. The relationship between police and the mobilization of the poor in Massachusetts was further explored in the early 1820s by Josiah Quincy, who was to become Boston's mayor in 1823, in a series of reports and opinions addressing the state's poor laws. Quincy's particular target was the absence of discrimination in public relief of poverty. Accepting that compulsory relief of the poor was likely to continue, his recommendation was that the state abandon outdoor relief and make work houses the cornerstone of the system. “Industry, morality and economy” should be made the indispensable conditions of relief, to be ensured by the administration of relief through a House of Industry. See Report of a Committee of the General Court of the Commonwealth of Massachusetts on the Pauper Laws of this Commonwealth [Josiah Quincy, Chairman] (Boston, 1821), 5; Report of the Committee on the Subject of Pauperism and a House of Industry in the Town of Boston [Josiah Quincy, Chairman] (Boston, 1821), 9—10. Behind Quincy's particular concern that the mode of relief should act as a stimulus to productive labor, however, lay a view of poverty which joined it with vice and crime as the proper subject of social discipline. Very much part of the vicious poor was “that turbulent and profligate class, who, travelling the high road of shame and of ruin, are found in the haunts of gambling, intemperance and debauchery; and whose quarrels, originating in their cups or their crimes, give continued occupation to the magistrates and officers of police.” Society deserved relief “from open drunkenness and street beggary, and the petty pilfering carried on under the forms of poverty.” See the Report of the Committee on the Subject of Pauperism, 10—11. See, also, Quincy, Josiah, Remarks on some of the Provisions of the Laws of Massachusetts, Affecting Poverty, Vice, and Crime (Cambridge, 1822)Google Scholar.

101. Tribe, “Introduction to Knemeyer,” 168.

102. As Herbert Baxter Adams wrote in 1887, that “excellent term” [police] would “probably suggest nothing but constabulary associations to most college faculties in these modern days.” See “The College of William and Mary,” 39.