LAW ENFORCEMENT AS A UNIVERSAL DUTY Law enforcement in the Founders time was a duty of every citizen.32 Citizens were expected to be armed and equipped to chase suspects on foot, on horse, or with wagon whenever summoned. And when called upon to enforce the laws of the state, citizens were to respond not faintly and with lagging steps, but honestly and bravely and with whatever implements and facilities [were] convenient and at hand.33 Any person could act in the capacity of a constable without being one,34 and when summoned by a law enforcement officer, a private person became a temporary member of the police department.35 The law also presumed that any person acting in his public capacity as an officer was rightfully appointed.36 Laws in virtually every state still require citizens to aid in capturing escaped prisoners, arresting criminal suspects, and executing legal process. The duty of citizens to enforce the law was and is a constitutional one. Many early state constitutions purported to bind citizens into a universal obligation to perform law enforcement functions, yet evinced no mention of any state power to carry out those same functions.37 But the law enforcement duties of the citizenry are now a long-forgotten remnant of the Framers era. By the 1960s, only twelve percent of the public claimed to have ever personally acted to combat crime.38 The Founders could not have envisioned police officers as we know them today. The term police had a slightly different meaning at the time of the Founding.39 It was generally used as a verb and meant to watch over or monitor the public health and safety.40 In Louisiana, police juries were local governing bodies similar to county boards in other states.41 Only in the mid-nineteenth century did the term police begin to take on the persona of a uniformed state law enforcer.42 The term first crept into Supreme Court jurisprudence even later.43 Prior to the 1850s, rugged individualism and self-reliance were the touchstones of American law, culture, and industry. Although a puritan cultural and legal ethic pervaded their society, Americans had great toleration for victimless misconduct.44 Traffic disputes were resolved through personal negotiation and common law tort principles, rather than driver licenses and armed police patrol.45 Agents of the state did not exist for the protection of the individual citizen. The night watch of early American cities concerned itself primarily with the danger of fire, and watchmen were often afraid to enter some of the most notorious neighborhoods of cities like Boston.46 At the time of Tocquevilles observations (in the 1830s), the means available to the authorities for the discovery of crimes and arrest of criminals [were] few,47 yet Tocqueville doubted whether in any other country crime so seldom escapes punishment.48 Citizens handled most crimes informally, forming committees to catch criminals and hand them over to the courts.49 Private mobs in early America dealt with larger threats to public safety and welfare, such as houses of ill fame.50 Nothing struck a European traveler in America, wrote Tocqueville, more than the absence of government in the streets.51 Formal criminal justice institutions dealt only with the most severe crimes. Misdemeanor offenses had to be dealt with by the private citizen on the private citizens own terms. The farther back the [crime rate] figures go, according to historian Roger Lane, the higher is the relative proportion of serious crimes.52 In other words, before the advent of professional policing, fewer crimes — and only the most serious crimes — were brought to the attention of the courts. After the 1850s, cities in the northeastern United States gradually acquired more uniformed patrol officers. The criminal justice model of the Framers era grew less recognizable. The growth of police units reflected a change in attitude more than worsening crime rates.53 Americans became less tolerant of violence in their streets and demanded higher standards of conduct.54 Offenses which had formerly earned two-year sentences were now punished by three to four years or more in a state penitentiary.55 ~Roger Roots
Posted on: Tue, 23 Dec 2014 00:20:00 +0000
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