This content is released as a draft version for comment by the scholarly community. Please do not distribute as is.
Section 1.1: Policing in Ancient Times
From the very beginning of civil societies, people have had to deal with those that harmed others. The practice of law enforcement in its most basic form began in primitive societies and had grown and developed as those societies did. Historians and anthropologists have not done much work on the ancient history of policing, so the early history is sketchy. There are, however, many historical records of how the legal system evolved over time, at least in literate societies. A common thread of all ancient systems of enforcing social norms was the need to protect members of the community from internal predators.
Term of Art: Social Norms
A term of art is a word or phrase that has a specialized, precise meaning within a particular academic discipline or profession. Criminal justice borrows terms of art from many fields, including law, sociology, and psychology. These textboxes will appear throughout this book to make you aware of what these specialized terms mean.
From a sociological perspective, social norms are informal understandings that govern the behavior of members of society. In this context, informal means that there are no written laws or courts to deal with those that break the rules.
The influential sociologist Clarence Ray Jeffery (1957) provides a brief but excellent overview of the historical development of the common law, as well as the social conditions that gave rise to it. The early Celtic and Iberian inhabitants of Britain tended to have social structures organized along tribal lines, and the “sentimental ties of kinship” were the “moral basis” of society (p. 648). These were crude, Iron Age cultures. These cultures practiced what many policing scholars have referred to as “kin policing.” That is, the extended family (also called a clan or tribe) assumed responsibility for protecting its members.
The operating philosophy of clan justice is that an assault on one member of the group is an assault against all members of the group. In other words, justice was a collective (rather than individual) endeavor. In such societies, there were no formal systems of justice as we know them today. Punishment for the violation of social norms was imposed through an often-brutal informal process.
Ancient Codes of Law
As far back as the tenth century B.C., King Hammurabi of Babylon established the Code of Hammurabi, which is regarded as the first written legal code. This code had several features found in American law today; it recognized individual responsibility for breaking the law, the sanctity of an oath before God, and the necessity of providing written evidence in legal proceedings.
Much of the Western legal tradition can be traced back to the Law of Moses, also known as the Mosaic Code. The common legal tradition of classifying statutes as mala in se and mala prohibita traces its roots back to this ancient code. Mala in se offenses are acts that are evil in themselves, such as murder, rape, robbery, and aggravated assault. In contrast, mala prohibita offenses are those that are not necessarily evil but prohibited by the lawmaking body.
The early Greek states are known to have practiced a rudimentary form of policing as early as 620 B.C. It was at this time that the infamous Draco was appointed to codify the law of ancient Athens. Draco advocated the death penalty for all crimes without regard to the seriousness of the offense. For this reason, policies and laws that are considered excessively harsh are referred to as Draconian. Solon succeeded Draco and instituted many reforms that would be influential for centuries to come. Among the Greek innovations of this time were elected assemblies of freemen that passed laws, and court systems with juries composed of citizens. Unlike Draco’s code, the one that followed reserved capital punishment for murder.
The great philosophers of ancient Greece were also influential in later legal thinking. The idea that crimes committed at night are worse than those committed during the day was first discussed in the writings of Plato. Plato also made the distinction between voluntary, involuntary, and premeditated homicide. He regarded the criminal justice goal of rehabilitation as superior to the goal of retribution.
After their conquest of the Mediterranean, the Romans made significant contributions to the development of modern law. In the Fifth Century, the Law of the Twelve Tables was developed. From this body of law came many ideas that are still embodied in our legal system, such as how courts operate, how confessions are used as evidence, and the notion of torts.
The first policing organization on record was created in Egypt in about 3000 BC. The empire then was divided into 42 administrative jurisdictions, and in each of these, the pharaoh appointed an official who was responsible for both security and justice.
The practice of recruiting police operatives from the lower classes—slaves, freedmen, and citizens of low birth, some with a criminal past—was the norm in ancient Rome. During the age of the Republic, the Romans were reluctant to participate in the prevention, detection, and prosecution of everyday criminality. This was a different culture in a different time, and the idea of criminal law was substantially different than we understand it today.
In ancient Rome, acts that we consider criminal were deemed matters of civil tort to be resolved between private citizens. Some discussions of the historical development of policing include a discussion of the Praetorian Guard, established by Emperor Augustus. Also, the city of Rome utilized military units of between 500 and 600 men known as the Urban Cohorts to keep the city’s peace. Also, there were the vigiles. These public servants of Rome served as both firefighters and patrolmen. Augustus divided the city of Rome into 14 wards, each consisting of vici (modern “precincts”) overseen by vicomagistri, who was responsible for fire protection and other administrative (and religious) duties.
Between 55 B.C. and 400 A.D., the Roman Empire occupied Britain, bringing with them technical advances in roads and military fortifications, as well as establishing town sites. Beyond the Roman city walls, Celtic tribalism survived. As Jeffery (1957) notes, “the Romans never did Latinize the Celts.” After the Romans retreated from Britain, waves of new invaders, most notably the Anglo-Saxons, descended on the island. By 870 A.D., Alfred the Great had consolidated his power and established the mutual pledge system.
The Etymology of “Police”
The term “police” originally meant something other than law enforcement. It is instructive to look at its etymology first. “Police”- and its cognates “policy” and “polity”-come from the Latin poitta, which itself is a descendant of the Greek word politeia.
The key to the mutual pledge system was that the social order was maintained through the mutual responsibility of all citizens. Under the mutual pledge system, each man was responsible for his own conduct as well as the conduct of his neighbors. Each citizen had the legal duty to raise the hue and cry when a crime was committed. The hue and cry was a loud and unmistakable call to all able-bodied men (defined in those days as males over the age of 12) to collect his neighbors and give chase to a criminal. If the group failed to apprehend the lawbreaker, the Crown fined them all. If there were no witnesses to the crime, efforts to identify the criminal after the fact were the burden of the victim alone; no governmental organization existed for the investigation and resolution of crimes.
The system had a hierarchical organization, with the foundational unit being the tithing. A tithing was a group of about ten families, presided over by a tithingman. Each member of the tithing was held accountable for the behavior of all of the other members. If one member of the tithing was accused of a crime, the others had to produce the accused, or they could be held liable to pay his fines or otherwise make restitution.
The next level of the hierarchy was the hundred. The hundred consisted (as you may have guessed) of a group of ten tithings. The hundred was headed by a hundredman who served as both administrator and judge. It was out of the hundred that the ancient role of the constable developed. Initially, the constable was responsible for the weapons and equipment of the hundred. Each hundred was grouped into a shire, which was supervised by a shire-reeve. The role of shire-reeve eventually developed into the modern office of county sheriff in England and in the United States.
The mutual pledge system would dominate the legal system of England until the Norman invasion of 1066. After establishing himself as King of England, William of Normandy modified the mutual pledge system by installing the frankpledge system. The new system was designed to place the conquered English under strict control. The system functioned similarly to the older mutual pledge system but was tied to land ownership and oaths of allegiance to the Crown. The reason for this was to undermine the kinship system and erode chances of rebellion.
The frankpledge system began to decline and was replaced mainly by the constable system by the 15th century. Initially, the constable was elected by the parish (a population center established around a church) to maintain the public order. The most important difference between the tithingman and the constable was that the constable was a royal servant. That is, the constable owed more loyalty to the government than his kinship group. The word constable has its origins in the Old French constable; in its earliest use, it merely designated a person holding a public office and eventually evolved to mean a person exercising a higher form of authority (connétable).
After the title of constable was introduced in England, its meaning continued to evolve. The English constable had initially been a position in the Monarch’s royal court. However, by the late 13th century, it had grown into a local office of individual manors and parishes, and the constable was subordinate to the sheriff. Constables were appointed by various persons in authority, such as the courts. There were two high constables for each shire division (each hundred). Constables were typically members of the upper class.
Under the constable system, it was the duty of every citizen to keep the King’s peace; any citizen could arrest anyone who violated it. The unpaid, part-time constables had an individual responsibility to do so. Within towns, a subordinate officer, the Watchman, often aided the constable. This system still relied on all citizens to answer the hue and cry, and to maintain weapons with which to answer the call. The constable had a special duty to present offenders at the court of leet (a sort of criminal district court of the middle ages). In urban areas, the Watch and Ward System was often used in place of the constable system. This system required patrolmen to watch for fires, guard the town gates during nighttime hours, arrest strangers lurking about at night, and prevent burglary.
The Justice of the Peace Act of 1361 marked the start of a lengthy process of centralizing (i.e., bringing it under a single, national power) the administration of justice in England. The Act established the office of justice of the peace and gave the office administrative authority the police, as well as establishing judicial and administrative duties. Justices of the peace were appointed by, and derived their power from, the monarch. The period that followed the Justice of the Peace Act ushered in the end of the traditional system of law enforcement system that used mandatory service to the community by all adult males. Until the 19th century (except a short period during the rule of Oliver Cromwell), public order and safety in England remained the duty of justices of the peace, constables, and the watch and ward.
During a period ranging from the early 16th to the early 19th century, groups of merchants, traders, church members, and others hired private individuals to protect their property and their persons. When communities began paying private citizens for the capture and conviction of thieves, a standard set of fees was established, and a stipendiary police system evolved. Sources of revenue in this system included public reward programs, insurance companies, commercial houses, prosecuting associations, and subscriptions. Any citizen, not only constables and justices, could earn such fees and rewards by becoming a thieftaker.
The stipendiary system was an element of a legal system that doled out harsh punishments for crimes that would be considered petty by modern standards. The death penalty and gruesome mutilations were prescribed for nearly every conceivable offense. Such Draconian sentences were handed out for two fundamental reasons. The foremost was the belief that these punishments would deter wrongdoers. If the sanctions did not work as a deterrent, they were also thought to provide criminals with the chance to “repent” through the penalties, which would achieve a spiritual reconciliation with God.
Although the system of social obligation remained in place for more than 800 years and was transplanted to several of England’s colonies (such as Australia, Canada, and the United States), it had serious weaknesses that were amplified by industrialization and urbanization. The system had become corrupted, especially in cities. The status of constables deteriorated through the years, and eventually, the office became subservient to the justice of the peace.
Because it had become degraded, persons of high social status were no longer willing to perform its duties. The consequence was the establishment of laws that allowed wealthy persons to hire replacements to serve their terms as constables. In the early 18th century, it was possible for a man of means to shirk the duty of being constable by hiring a substitute. Very few men who had the means to pay their way out of serving as a high constable pro bono failed to appoint an alternative. This system tended to work reasonably well in small towns and rural areas, but only the very poor, the aged, and the infirm were willing to be constables in such large cities as London, Boston, and New York City.
Term of Art: Pro Bono
The term pro bono means doing work for free for the good of society. Today, the term is most closely associated with attorneys who take on cases without charge because the defendant cannot afford the attorney’s usual fee.
In the late seventeenth century, the traditional policing systems began to break down under the weight of very high population growth. The reactive and inefficient urban policing system of England, in which nearly unpaid public constables had to rely on private, stipendiary thief-takers to maintain law and order, was falling apart. Already scandalized by corruption and incompetence, the old system could not handle the doubling of England’s population that occurred during that time. An essential feature of this old system was its mixed character. It blended disgraced high constables with corrupt bounty hunters. In time, serious crimes and disorders in the cities reached levels that the public would no longer stand for. Crime was rampant, particularly in the metropolis of London. A call for change was heard across the city.
In reaction to the high level of crime and disorder in the city of London, two brothers decided to do something about it. Henry and John Fielding, both of which served as magistrates at the Bow Street Court, developed a paid constabulary in the year 1750. This new group became known as the Bow Street Runners. Officers patrolled the streets within the parish of Bow Street. Parliament (the English lawmaking body, similar to the U.S. Congress) later created several more offices based on the Fielding’s Bow Street model. However, there was little popular or governmental support for the creation of a paid, professional police force in England at that time.
One of the most important innovations in police reform during this early period (1798) was the creation of the Thames River Police. This represented the first professional police force in London. The original mandate of this force was to reduce the rampant thefts that plagued the world’s largest port. Because of the connection with shipping and commerce, the Thames River Police was initially financed by businessmen. The force was first directed by Patrick Colquhoun, who commanded a full-time staff of 80 men and an on-call team of more than 1,000.
Two features of the marine police served as essential innovations that would influence later forces. Importantly, the Thames River Police used visible, preventive patrols. Also notable was the fact that these officers were paid a salary (i.e., they were not stipendiary). They were prohibited from taking fees and rewards. The force was widely regarded as a success, and reports of crimes dropped considerably within their jurisdiction. That success prompted the House of Commons to pass a bill making the force a publicly funded organization in July of 1890.
Despite having a successful model of policing, powerful social and political forces in England worked to maintain the preexisting order. Every proposed alternative to the stipendiary system required substantial public funding. Raising taxes, however, was not supported by the public (which is similar to the issues that arise every time lawmakers attempt to improve police services in the United States today). Also, leaders outside of the metropolis viewed inefficiency and corruption as “London” problems and believed that the constabulary system worked well where they lived. The dominant political ideology of England in those times was based on the premise that small, unobtrusive governments were best.
English citizens and leaders alike were concerned about the centralization of policing. They were also aware of the political abuses of the French police during that time. Many political leaders in England worried that a standing police force would be used for political purposes. The dispute about the formation of centralized police force raged throughout the early part of the 19th century.
It is noteworthy, however, that English politicians had already started a police force in Ireland. This was in response to rebellious tests of the English power to rule. The Dublin Police Act (1786) created a professional centralized police force in the city of Dublin. At that time, Dublin was the second largest city in the British Isles. The new force of uniformed and armed constables consisted of 40 horse police and 400 constables. The new force faced large resistance at first. By the time that Robert Peel (We will learn more about Peel in a later section) was appointed Chief Secretary for Ireland 1812, Dublin had low crime rates.
References and Further Reading
Modification History File Created: 08/15/2018 Last Modified: 08/27/2018
This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.