Studies in Legal History

Philadelphia, 1800-1880

Allen Steinberg

• Publisher: The University of North Carolina Press
• Year: 2000
• ISBN:
  9780807864753
• Topic: Law
• Subtopic: Legal History
• Index: Law

Allen Steinberg brings to life the court-centered criminal justice system of nineteenth-century Philadelphia, chronicles its eclipse, and contrasts it to the system -- dominated by the police and public prosecutor -- that replaced it. He offers a major reinterpretation of criminal justice in nineteenth-century America by examining this transformation from private to state prosecution and analyzing the discontinuity between the two systems. Steinberg first establishes why the courts were the sources of law enforcement, authority, and criminal justice before the advent of the police. He shows how the city's system of private prosecution worked, adapted to massive social change, and came to dominate the culture of criminal justice even during the first decades following the introduction of the police. He then considers the dilemmas that prompted reform, beginning with the establishment of a professional police force and culminating in the restructuring of primary justice. Making extensive use of court dockets, state and municipal government publications, public speeches, personal memoirs, newspapers, and other contemporary records, Steinberg explains the intimate connections between private prosecution, the everyday lives of ordinary people, and the conduct of urban politics. He ties the history of Philadelphia's criminal courts closely to related developments in the city's social and political evolution, making a contribution not only to the study of criminal justice but also to the larger literature on urban, social, and legal history. Originally published in 1989. A UNC Press Enduring Edition -- UNC Press Enduring Editions use the latest in digital technology to make available again books from our distinguished backlist that were previously out of print. These editions are published unaltered from the original, and are presented in affordable paperback formats, bringing readers both historical and cultural value.

Part I: The Duality Of Criminal Justice

1: Courtrooms and Cases

In 1836, when Philadelphia’s “penny press” began publishing daily accounts of the city’s criminal courts, reporters came face-to-face with one of the court’s most enduring features. “The moment the doors are opened, the standing corps of soaplocks and loafers rush in, and . . . appropriate to themselves in an unceremonious manner all the seats inside of the bar, so that when the attorneys, reporters and parties really interested in the proceedings of the court come in, they are compelled to stand and gaze on.” One day in 1839, when some fifty prisoners entered a room designed to hold twelve, defendants and grand jurors became inextricably intermingled. The judge and constables lost all sense of who was who and in the confusion one of the prisoners escaped. His absence was not discovered until the next day. In a hearing to discover who was responsible, Judge Robert Conrad could find no one to blame.¹

Nearly thirty years later, the reporters were different but the court’s circumstances were much the same. “The hundreds of loafers who make the Quarter Sessions their place of daily resort” regularly forced witnesses into the square outside, regardless of the weather. This group, “equally divided between males and females, blacks and whites,” included at least fifty who were in attendance daily. “The most disgusting details of a case are not sufficient to make them vacate their places.”²

Despite the enormous changes that took place in the process of criminal prosecution between 1800 and 1875, a number of things remained constant. Crowded and unruly courtrooms were perhaps the most obvious of them, and they are important to understand if one is to comprehend the transformation of criminal justice.

The Urban Setting

One of the constant features of life in general in nineteenth-century Philadelphia was, of course, change, both rapid and uneven. The constants in criminal justice, including the persistence of private prosecution, seem all the more remarkable for this, but the character of social change also contributed to the persistence of old habits.

Between 1800 and 1875, urban Philadelphia grew from 67,000 people concentrated in a two-square-mile city and two adjoining districts to a massive metropolis of 800,000, encompassing the entire 129 square miles of Philadelphia County. A population of mostly native-born people of English and German descent (with a smattering of blacks) became a melting pot comprised in half by recent Irish and German immigrants and their children. The commercial and household manufacturing town had become an industrial city with prominent iron, textile, railroad, and shipbuilding industries; a kaleidoscopic variety of workplaces; and a huge population of skilled and semiskilled workers. By 1875, railroads, trolley cars, factories, sweatshops, mansions, tenements, shanties, and characteristic row houses had fashioned a teeming urban landscape out of the compact walking city of 1800.³

The most startling changes occurred by mid-century. Consolidation in 1854, which put under one government the forty distinct political units that had until then comprised Philadelphia County, was an overdue recognition that Philadelphia had ceased to be a “green-country town” and had become a “sprawling port and mill city” of roughly one-half million people, perhaps the fourth largest in the world.⁴ At the end of the colonial period, the line between public and private remained blurred, and the paternalism and mutuality of preindustrial life was very much alive.⁵ Although urban Philadelphia (including Southwark and Northern Liberties) in 1800 was still the largest city in the United States, and although the area of dense settlement was expanding, farms, parks, and country gardens were still only a short walk from the center of town. Capitalist development during the revolutionary period had yet to eclipse many features of the household economy.⁶ On the whole, for example, a journeyman could still “look forward to setting up his own shop (and) earning a modest income as an independent producer.” Bankers and merchants still preferred safe traditional investments in land and shipping, dampening their entrepreneurial and manufacturing spirit.⁷

It was not long, however, before Philadelphia businessmen became more adventurous. The embargo of 1808 was a major boon to manufacturing. The growth of New York City and the noises being made about road and canal construction worried merchants and commercial leaders, who began to enlarge Philadelphia’s coastal shipping trade and initiate their own internal improvement projects.⁸ Between 1815 and 1835, Pennsylvania, with Philadelphia as its hub, constructed over 3,000 miles of roads and 900 miles of canals, and then, by 1852, 900 miles of railroad track.⁹

The transportation revolution turned Philadelphia into the economic center of the Delaware Valley and eastern Pennsylvania, expanding the opportunities for growth in commerce and manufacturing. Not only did this accelerate the process of capitalist development, but it also swelled the city’s population. Even before massive immigration, the demand for cheap manufacturing labor spurred rural-urban migration. Philadelphia’s population grew to over 250,000 in 1840, on its way to doubling between 1825 and 1854. The densely settled area expanded rapidly westward after 1820, and the population of the nearby suburban districts—Southwark, Northern Liberties, Kensington, Moyamensing, Manayunk, and Spring Gardens—soon outstripped Philadelphia’s.¹⁰ By the 1840s, the suburban districts were manufacturing centers and the home of many newly arrived wage earners, now increasingly immigrants. Only 10 percent of the work force in 1836, German and Irish immigrants comprised nearly 40 percent by 1850. They settled in great numbers in most areas and accounted for 30 percent of the city’s population by 1860, over half including their children.¹¹

Philadelphia’s occupational structure also became extremely complex, reflecting the old trades of the manufacturing town as much as the industrial city looming on the horizon. Old crafts, such as carpenter, shoemaker, tailor, and weaver, still abounded. The largest single occupational category remained that preindustrial catchall, the common laborer. At the same time, entirely new major occupational groups appeared, the middle-class clerk and the working-class factory operative, while the traditional prospects of artisanship were disappearing. Work settings were similarly complex. Over half of Philadelphia’s work force toiled in places with fifty or more employees in 1850. But the majority of firms still had fewer than five workers, and over half of the operatives in the largest textile, clothing, and shoe concerns were actually outworkers, those who toiled in small places, usually their homes.¹²

Despite the variety of settings, the vast majority of workers were now simply wage laborers, quite unlike the artisans of even the recent past. Most were either unskilled or employees of firms with twenty or more laborers and a significantly subdivided work process. Artisanal working conditions prevailed in only a few trades and among some of the most vulnerable and impoverished workers, such as the largely immigrant hand-loom weavers. The tenuousness of their artisanal status was only heightened by the unregulated, speculative, and cyclical manner in which early American capitalism developed. During the 1837 depression, for example, some two thousand small masters, still seeking to maintain artisanal shops with a few journeymen, were “reduced . . . to journeymen . . . working for large [manu]factories,” never to return to the status of independent craftsman.¹³

Never again would the city see an era of such rapid, tumultuous, and extensive social change. Population kept increasing, the process of urban sprawl throughout the county continued, and the city embarked on the Industrial Age, but by the time of consolidation, the fundamental features of capitalist big-city life had been stamped upon Philadelphia.¹⁴ Yet this was not an unambiguously modern city but rather a bewildering hybrid of tradition and innovation, farm and factory, splendor and squalor, development and decline. This was as true of the city spatially as it was socially. Philadelphia’s famous grid street network had by 1850 become an extended agglomeration of “shacks, shanties, and back-alley two-room houses for the poor; three-room row houses, or three rooms in multi-family row houses for the skilled workingman; and six to eight room row houses and flats for middle class managers, prosperous shopkeepers, professionals, and downtown businessmen.” Although the city had its fashionable areas—in the western part of the central city and several of the newer surrounding communities—and an overwhelmingly commercial downtown, it was not characterized by great segregation. The shoddy homes of the poor “proliferated to the saturation point” in the 1850’s throughout central Philadelphia.¹⁵

As a result of the city’s spatial integration, social classes remained in close contact. Even many of the professionals and businessmen who lived in the most fashionable areas commuted daily to the downtown wards. Especially in the central city and surrounding manufacturing districts, people who engaged in a vast array of pursuits closely intermingled, including, of course, those with no place of work and nowhere to call home. Poverty and squalor were very much a part of everyday life at mid-century, even among people who were regularly employed, and were, like everything else, distributed widely throughout the city.¹⁶

Such a complex and uneven process of social change allowed old habits to die slowly during the nineteenth century, only adding to the bewildering and disorderly quality of social life. The most basic enduring feature of criminal justice was simply the popularity of the criminal law and the large number of people who, in one capacity or another, passed through the criminal courts.

The Character of the Courtrooms

The spatial and social density of life in Philadelphia produced the circumstances in which ordinary people came to depend—and prey—upon one another. All facets of popular life in Philadelphia created the propensity toward litigation: poverty, the stress of bewildering social change, family tensions, ethnic and racial prejudice and rivalry, the boisterousness of the streets and saloons—in short, the everyday affairs of ordinary people living in crowded conditions in, or on the edge of, poverty. The resolution of their quarrels and spats, and their attempts to take advantage of one another or to avenge injustices, took them regularly to court. The popular character of both the local alderman’s office and the more imposing courts of record never subsided.

By 1854 there were over fifty aldermen in the city, each presiding over a neighborhood office to which residents flocked with civil and criminal business. The most important alderman was the mayor, who presided over the central police station downtown. Until 1826 he was chosen from among those men who were already aldermen; afterwards, the popularly elected mayor became one by virtue of his office. In 1840, all of the aldermen became elected officials, assuring their close ties to partisan politics.¹⁷

Criminal justice was completely decentralized. The alderman’s office was a community center in every ward, the point of origin for all court business as well as the headquarters of a prominent neighborhood politician. The mayor acted as alderman for the more weighty crimes that tended to cluster in the central business district and for the many cases of drunkeness and disorderly conduct that comprised the bulk of the arrests made by the paltry pre-1850 police and watch. But the majority of criminal prosecutions originated throughout Philadelphia County in the local offices of the neighborhood alderman.

All day long, every day, residents of a ward streamed in and out of the alderman’s office, bringing him a variety of civil and criminal business ranging from marriage to murder. Constables attached to the aldermen waited for an opportunity to serve a summons or an arrest warrant. People eager to serve as someone’s bail loitered about looking for business. Notorious lawyers, “the vermin of the profession,” also frequented the offices in pursuit of clients. On a typical day in 1848, one alderman heard six assault and battery cases, three larceny cases, three breach of ordinance cases, one firecracker case, one fast driving case, and one case of throwing torpedoes on the stage of the Arch Street Theatre. He committed three boys to the house of refuge; issued two landlords’ warrants of eviction, two private notices, and eight summonses; and had one man examined for life insurance and one operated on for ophthalmia. He also conducted one marriage ceremony.¹⁸

Spectators also attended, especially at the offices of the committing magistrates who heard the cases brought by policemen. Monday morning hearings generally attracted the largest crowds, with the prisoners’ dock full of a weekend’s worth of vagrants, drunks, and other assorted miscreants. “The office of Mayor, as usual on Monday, was yesterday morning crowded with individuals, most of whom, we are glad to say . . . were spectators, mere lookers on in Venice, and only interested in the disposition which His Honor would make of those . . . who for ‘doing nothing’ were arraigned before him.”¹⁹

Sometimes the rush of spectators to the magistrate’s office became a crush of spectators. “As soon as the door opened, the pushing and crowding to get into the office was immense, not unlike some of the scenes witnessed at sales of Bank stock some six or eight years ago.” By the 1840s spectators became such a nuisance that the mayor moved the opening of court back from nine to seven in the morning and then instituted Sunday hearings, hoping to reduce the typical tumult of Monday mornings.²⁰

Such ploys never succeeded. People did not simply attend hearings at the magistrates’ offices; they actively followed them. Spectators knew when a good show was expected. For a case involving a young girl “of superior personal charms,” the office was “thronged—some fun was evidently anticipated.” The crowd that reminded the court reporter of eager stock speculators was awaiting the hearing of sixteen “attractive Ladies and Gentlemen” arrested the night before at a “disreputable dance house.” Special occasions—election days, Christmas, and Independence Day—regularly attracted crowds because they were unusually disorderly. The arrest of a notable person, a complex case continued to the following day, or one involving a new or newly enforced law also attracted large audiences. During the temperance fever of 1854, the police began prosecuting persons for selling liquor on Sundays. On the first day of hearings, the mayor’s office was filled with spectators, but they were disappointed; only two defendants attended.²¹

They were not often disappointed, however; the magistrate’s office was like a grand, free popular theater, with friends and neighbors as the performers. This was, of course, an era of popular theater in America, no less so in Philadelphia than elsewhere. The Arch Street and Chestnut Street theaters were major stops for touring actors and companies, and as elsewhere the theaters were frequented by people of all classes and races. In fact, dominated by the rowdy and unruly behavior of the lower classes, they resembled a twentieth-century sporting event more than a theatrical performance—the virtual institutionalization of “the guilty third tier” reserved for blacks and prostitutes; the incessant chattering of voices, munching of peanuts, and spitting of tobacco; and the regular expression of audience opinion by cheering, booing, hissing, and throwing objects toward the stage. Critics constantly complained of the tyranny that popular taste held over theatrical offerings. People attended the theater as much for the social as the dramatic pleasures, whether in search of illicit sex, simple conviviality, or the opportunity to show off. On holidays, the performance became “almost superfluous” to the socializing that made the theater such a popular mecca.²²

This extremely popular character of the theater meant that the content of drama often had great meaning for ordinary people, that the li...

Table of contents

• Cover Page
• Titlepage
• Copyright Page
• Contents
• Tables
• Preface
• Introduction: The Greatest Luxury Of All
• Part I: The Duality Of Criminal Justice
• Part II: The World Of Private Prosecution
• Part III: The Rise of State Prosecution
• Part IV: The Decline of Private Prosecution
• Epilogue
• Appendix
• Notes
• Bibliography
• Index