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Privatizing Violence: A Transformation in the Jurisprudence of Assault

  • Joshua Stein

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.

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1. Bruce Smith in his review of English criminal justice historiography writes that “the relationship between criminal and civil remedies for offenses such as assault or trespass remains underexplored.” This relationship serves as the fulcrum of this study of “public” and assault's evolving criminal nature. Smith, Bruce P., “Review Essay: English Criminal Justice Administration, 1650–1850: A Historiographic Essay,” Law and History Review 25 (2007): 593635.

2. Further complicating this is the fact that assaults in public or in private—a more topographical distinction—could be handled differently. Subsequently, an important case addresses this difference, but ultimately, the article's argument rests not on the private/public location of assaults.

3. The work of Laura Edwards is central in this project. Edwards, in her essay, “People's Sovereignty and the Law,” examines criminal prosecutions of assault, among other developments, to show how “racial, gender and class differences [in the antebellum South] were not as fixed or polarized as historians now assume.” She identified an important change in common law: “the public” had replaced the king, who after the Revolution was no longer relevant. Private injuries to individuals took upon greater importance because citizens became joint members of a governing public and their individual bodies comprised the body of the King at the center of English-style law. According to Edwards, private injuries to franchised men became inherently public ones, whereas injuries to dependents—blacks, women and children—would have to meet a higher threshold in order to be treated as criminal. See her recent work, The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (Raleigh, NC: UNC Press, 2009) for an in depth exploration of localities and the larger concept of the “peace” that permeated Carolina courts in the Early Republic, one that promoted and preserved white, patriarchal power. Stephanie Cole, Alison M. Parker, and Laura F. Edwards, Beyond Black & White: Race, Ethnicity, and Gender in the U.S. South and Southwest. (College Station, TX: Texas A&M University Press for the University of Texas at Arlington, 2004). Ruth Bloch, building on Edwards' work, traces the impact this distinction had on the legal treatment of wife beating. Bloch outlines how the increased significance of private injuries made assault more exclusively a criminal matter, leaving victims of domestic violence, whose injuries were not inherently public, in the lurch. Bloch, Ruth H., “The American Revolution, Wife Beating, and the Emergent Value of Privacy.” Early American Studies: An Interdisciplinary Journal 5 (2007): 223–51.

4. Richard Slotkin. Regeneration Through Violence: The Mythology of the American Frontier, 1600–1860. (Tulsa: University of Oklahoma Press, 2000, reprint).

5. On professionalization of prosecution see Steinberg, Allen, The Transformation of Criminal Justice, Philadelphia, 1800–1880, Studies in Legal History (Chapel Hill: University of North Carolina Press, 1989); on professionalization of defense attorneys, see Michael Jonathan Millender. “The Transformation of the American Criminal Trial, 1790–1875” (PhD diss., Princeton University, 1996).

6. William Blackstone, Blackstone's Commentaries on the Laws of England (Yale Law School Avalon Project, 1765–1769):

7. Blackstone, Commentaries, Book III, ch. 8, 119.

8. Ibid., Book IV, ch.1, 2.

9. Ibid., Book IV, ch.1, 5.

10. Ibid., Book I, ch.1, 120.

11. Ibid., Book III, ch. 8, 116.

12. Ibid., Book III, ch. 8, 118.

13. Ibid., Book III, ch. 8, 121.

14. Ibid., Book IV, ch. 15, 217. The concept of “Affront to his government” suggests they understood the biggest danger in not prosecuting assault: loss of faith in the state, a factor that Randolph Roth argues is the most essential factor in explaining changes in homicide rates. Roth, Randolph, American Homicide (Cambridge, MA: Harvard Press, 2009).

15. Based on the studies of Peter King, one could conclude that Blackstone's call to action yielded results (or at least that his wish was granted). A transformation in assault prosecution in England led to more frequent and severe punishment, including incarceration. Peter King, “Punishing Assault: The Transformation of Attitudes in the English Courts,” Journal of Interdisciplinary History 27 (1996): 43–74. Peter King's latest work on English criminal justice demonstrates how in many ways local courts stood at the vanguard of legal change. It is, perhaps, an explanation for Blackstone's obsolescence on this point—only with the aid of hindsight and statistics was King able to trace these changes in assault prosecution. King suggests that in English justice, the local courts (if gradually) steered change and then developments radiated inward toward power. We find a similar story with assault and the meaning of “public” in the United States, and often find American treatise writers, like Blackstone, struggling to keep apace. Also see King, Remaking Justice from the Margins (Cambridge: Cambridge University Press, 2006). The historiography of the British Law has delved much more deeply into assault prosecution. In addition to King, see: Hurl–Eamon, Jennine. Gender and Petty Violence in London, 1680–1720, History of Crime and Criminal Justice (Columbus: Ohio State University Press, 2005); and Greg T. Smith. “The State and the Culture of Violence in London, 1760–1840” (PhD diss., University of Toronto, National Library of Canada, 2000).

16. Blackstone, Commentaries, Book IV, ch. 27, 357.

17. Laws of the State of New York, Twelfth Session (Albany, 1798), 277.

18. Blackstone, Commentaries, Book IV, ch. 27, 357.

19. Ibid., Book III, ch. 1, 3–4.

20. Ibid., Book III, ch.1, 3–4.

21. Ibid., Book IV, ch. 14, 185.

22. Ibid., Book III, ch. 1, 3–4.

23. An excellent summary of this sentiment can be found in Sean Wilentz, The Rise of American Democracy: Jefferson to Lincoln, (New York: Norton, 2005). It is known, however, that lawyers not only survived this era, but managed to expand their practices. The more sustained use of criminal defense counsel is a particularly noteworthy sign of the transformation of the law practice. Millender, “The Transformation of the American Trial.”

24. Bloom, Harold, The Anxiety of Influence: A Theory of Poetry, 2nd ed. (New York: Oxford University Press, 1997). It might be helpful to continue the metaphor and think of Blackstone as “Old Testament.” The American Revolution brought about a new era and therefore needed its own gospel, but was nevertheless rooted in a tradition that could not be discarded. Tellingly, Thomas Jefferson thought that Blackstone's ambitious rendition of the common law was overly prim, and preferred the more straightforward, if less neat, treatises of Edward Coke. There was, indeed, a tug of war over the common law between Federalists and Republicans, with Federalists tending more toward the Blackstone camp. One cannot help but wonder if his paternalistic sense of “public” was part of a larger aristocratic air that offended Republicans. Dubber, Markus, “‘An Extraordinarily Beautiful Document’: Jefferson's “Bill for Proportioning Crimes and Punishments” and the Challenge of Republican Punishment,” in Modern Histories of Crime and Punishment, ed. Dubber, Markus and Farmer, Lindsay (Palo Alto, CA: Stanford Univrsity Press, 2007), 115–55.

25. The first American edition of Blackstone included several footnotes that aimed to highlight differences between English and American legal practices. Tucker, St. George and Blackstone, William, Blackstone's Commentaries: With Notes of Reference to the Constitution and Laws, of the Federal Government of the United States, and of the Commonwealth of Virginia: With an Appendix to Each Volume, Containing Short Tracts Upon Such Subjects as Appeared Necessary to Form a Connected View of the Laws of Virginia as a Member of the Federal Union (Union, N.J.: Lawbook Exchange, 1996). Meanwhile, much more ambitious than Tucker's work, the earliest fully original treatise of American law, A General Abridgment and Digest of American Law (1823) by federalist lawyer Nathan Dane, claimed that “no law work in the English language has ever required so much labour, research, and revision; especially in deciding what law, in a monarchy once feudal, is in force in a free republic.” And yet despite this promise, Dane deviated only slightly from Blackstone on the subjects of assault law and self-defense from Blackstone. Dane, Nathan, A General Abridgment and Digest of American Law, with Occasional Notes and Comments, vol. 1 (Boston: Cummings, Hilliard & Co., 1823). For more on Dane, see Andrew Jay Johnson. The Life and Constitutional Thought of Nathan Dane,(PhD diss., University of Indiana, 1964; New York: Garland Series of Outstanding Dissertations, 1987).

26. Steinberg, Transformation of Criminal Justice.

27. Charles Christian, “To the Editors of the Respective Public Papers in This City,” Commercial Advertiser, August 15, 1812, 2. Charles Christian, New York Herald, January 26, 1811, 3.

28. Parton, James, Life of Andrew Jackson (New York: Mason Brothers, 1861).

29. “Mayor's Court,” Commercial Advertiser, March 3, 1820, 12.

30. “Curious Assault and Battery,” Commercial Advertiser, December 28, 1814, 3.

31. “Reported for the Commercial Advertiser,” New York Spectator, September 21, 1821, 1.

32. “Assault and Battery.” New York Courier, November 9, 1816, 2.

33. “To the Editors of the Commercial Advertiser,” New York Spectator, June 23, 1818, 1.

34. On the legal publishing industry, see Hoeflich, Michael. Legal Publishing in Antebellum America (Lawrence: University of Kansas Press, 2010).

35. Tighe, Janet A., “Francis Wharton and the Nineteenth-Century Insanity Defense: The Origins of a Reform Tradition,” The American Journal of Legal History 27 (1983): 223–53.

36. Wharton, Preface, Wharton, Francis, A Treatise on Criminal Law of the United States (Philadelphia: James Kay, Jun., and Brother, 1846).

37. 6 J.J. Marsh. 614 Ky. 614, 1831 WL 2409 (Ky.).

38. Ibid.

39. Ibid. This is something that was already changing by the time Wharton was writing; yet another example of the delay in legal change finding its way into treatises. Wharton, Treatise.

40. Wharton, Treatise, 313.

41. Ibid, 313–14.

42. Ibid.

43. Brown, Richard Maxwell, No Duty to Retreat: Violence and Values in American History and Society (New York: Oxford University Press, 1991). Garrett Epps. “Any Which Way but Loose: Interpretive Strategies and Attitudes toward Violence in the Evolution of the Anglo-American ‘Retreat Rule’,” Law and Contemporary Problems, 55 (1992): 303–31.

44. Wharton, Treatise, 254.

45. Bruce Smith aptly notes that “the extent to which self-defense or other forms of self-help may have served as either substitutes for (or adjuncts to) formal criminal prosecution remains largely terra incognita.” Smith, “English Criminal Justice Administration,” 621.

46. This can partially be read as a problem with sovereignty, a subject that hovers around the story of violence's privatization. Fritz, Christopher, American Sovereigns: The People and America's Constitutional Tradition Before the Civil War (New York: Cambridge University Press, 2008). Notably, Christopher Tomlins demonstrates that this contested notion of sovereignty made the law the central front in a war over authority. Tomlins, Christopher L., Law, Labor, and Ideology in the Early American Republic (Cambridge, New York: Cambridge University Press, 1993).

47. Bishop actually had to fight off charges of plagiarism for publishing a work on criminal justice so soon after.

48. Bishop, Joel Prentiss, Commentaries on the Criminal Law, 2d ed. (Boston: Little, Brown and company, 1858). Bishop does not lavish such praise on the judiciate, however, claiming their positions were not won by merit but rather “in compensation for caucus services or popular harangues.” I:42.

49. Siegel, Stephen. “Joel Bishop's Orthodoxy,” Law and History Review 13 (1995): 215–59.

50. Bishop, Commentaries, 24.

51. Bishop, Commentaries, I:445–46.

52. Ibid., 446.

53. Elias, Norbert. Jephcott, Edmund, trans. The Civilizing Process (New York: Blackwell Publishing, 2000). As the reader will see momentarily, Bishop's idea of civility did not quite match Elias's.

54. Bishop, Commentaries, I:549–50.

55. Bishop, Commentaries, I:346.

56. On Bishop's opposition to slavery, see Siegel, Bishop's Orthodoxy, 18. On violence and slavery/antislavery, see Baker, H. Robert, The Rescue of Joshua Glover: A Fugitive Slave, the Constitution, and the Coming of the Civil War (Law, Society, and Politics in the Midwest) (Columbus: Ohio State University Press. 2006); and Rao, Gautham, “The Federal Posse Comitatus Doctrine: Slavery, Compulsion, and Statecraft in Mid-Nineteenth-Century America,” Law and History Review 26 (2008): 157.

57. Bishop, Commentaries, I:442.

58. Ibid., I:349.

59. Ibid., I:351.

60. Ibid., I, 360.

61. Invaluable research of the criminal justice system in Philadelphia by Allen Steinberg also uncovers a widespread apathy and antipathy toward the minor concerns of ordinary citizens in increasingly “modern” courts. Steinberg, Transformation of Criminal Justice. See Kuntz, William Francis. Criminal Sentencing in Three Nineteenth-Century Cities: Social History of Punishment in New York, Boston, and Philadelphia, 1830–1880, Harvard Dissertations in American History and Political Science, (New York: Garland Pub., 1988).

62. The City Hall Recorder gave easy access to lawyers and newspapers around the nation to the cases in the New York Courts.

63. The earlier decades during the colonial period had such an infrequently convened court that it barely makes sense to call it a part of the process. That is why most of the quantitative heft of this study tracks change between 1800 and 1840. Between 1760 and 1800, there was an inching toward the Court of General Sessions as the venue for crime, but little in the way of quantifiable change in conviction or sentencing of assault. The bond/surety and/or the nominal fine reigned.

64. Civil actions for assault could not be tracked because of the unavailability of records.

65. The cases in the dismissed files may have already been remanded to the grand jury by the Police Court, who might have later sought to negotiate this type of settlement; this explains the number of cases deemed “settled” even after appearing in the minutes of the Court of General Sessions.

66. Laws of the State of New York, Twelfth Session (Albany, 1798), 276–77.

67. Ibid.

68. Ibid., 277.

69. “District Attorney Indictment Records,” (New York: The County of New York, October–December, 1810, 1820, 1830, 1840). “Minutes,” January–December, 1810, 1820, 1830; September–December, 1840. Unless otherwise noted, future mentions of statistics from the Court of General Sessions cover the same periods. Subsequent mentions will also simply refer to the District Attorney files as “Indictment Records.”

70. The rising use of the Court of Special Sessions after 1829 surely had an impact on the number of cases brought into the system. It is not a large enough impact, however, to fully explain a decline that began well before then. With my best estimate, given the hazy numbers available on the Special Sessions, assault cases as a percentage of population at most leveled off at 1830 levels, just as the summary court was beginning to hear assault cases. The drop between 1830 and 1840 can perhaps be attributable to the increased popularity of the special sessions court. Bruce P. Smith, “Circumventing the Jury: Petty Crime and Summary Jurisdiction in London and New York City, 1790–1855” (PhD diss., Yale University, 1996).

71. New York County, “Minutes of the Court of General Sessions” (New York, NY: The County of New York, December, 1810, 1820, 1830; September–December, 1840). The minutes were tracked for a full year, with the exception of 1840, for which only records from September to December are available. For an overview of New York's tumultuous and rapid growth in the period, see Burrows, Edwin G. and Wallace, Mike. Gotham: A History of New York City to 1898 (New York: Oxford University Press, 1999); Julius Goebel, Thomas Raymond Naughton, and Commonwealth Fund, Legal Research Committee. Law Enforcement in Colonial New York; a Study in Criminal Procedure (1664–1776) (New York: Commonwealth Fund, 1944); Greenberg, Douglas. Crime and Law Enforcement in the Colony of New York, 1691–1776 (Ithaca, N.Y.: Cornell University Press, 1976); and Pomerantz, Sidney Irving. New York, an American City, 1783–1803; a Study of Urban Life. 2nd ed. (Port Washington, NY: I. J. Friedman, 1965). The book by Burrows and Wallace is especially enlightening on the problem of riots, which from the Revolution through the Civil War managed to threaten civic order and hasten reforms such as the standing and professional police force. On riots, see: Paul A. Gilje, The Road to Mobocracy: Popular Disorder in New York City, 1763–1834. (Chapel Hill: Published for the Institute of Early American History and Culture by the University of North Carolina Press, 1987). On the rise of the police, see Richardson, James F.. The New York Police, Colonial Times to 1901 (The Urban Life in America Series) (New York: Oxford University Press, 1970).

72. Unless otherwise noted, future mentions of statistics from the Court of General Sessions cover the aforementioned periods. Also relevant to the study of assault prosecution is Kuntz, Criminal Sentencing.

73. New York County District Attorney Indictment Records, Police Court Dismissed Cases Records.

74. Ibid.

75. In his study on the rise of public prosecution in Philadelphia, Allen Steinberg sees a similar decline in assault convictions as a sign of the triumph of public prosecutors over the frivolous, personal (more democratic) use of justice by ordinary citizens. Steinberg, Transformation of Criminal Justice. Also relevant to the study of assault prosecution is William Kuntz's study of sentencing in the antebellum and Civil War eras, which corroborates what I have found in our small overlap of periods. Several legal historians have portrayed an American legal system of the early republic attempting to accommodate entrepreneurship and capitalism, prioritizing legal issues involving property and helping to explain why assault convictions may have plummeted. See, for example: Horwitz, Morton J., The Transformation of American Law, 1780–1860 (New York: Oxford University Press, 1992); and Nelson, William Edward, Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760–1830 (Athens, GA: University of Georgia Press, 1994). Kuntz, as well, posited that sentencing showed a greater concern with the punishment of property crime. Between 1830 and 1845 in New York, he found that fifty-one percent of convictions involved property or currency, and showed that the penalties in these crimes were harsher than those involving other offenses.

76. Monkkonen, Eric H., Murder in New York City (Berkeley: University of California Press, 2001). See also Roth, American Homicide; and Lane, Roger, Murder in America: A History (Columbus: Ohio State University Press, 1997).

77. Gilje, Mobocracy.

78. On the rise of the police force, see Richardson, James F., The New York Police, Colonial Times to 1901 (The Urban Life in America Series) (New York: Oxford University Press, 1970).

79. What Pfieffer calls the “rough justice” of lynching emerged as a challenge to bourgeois reforms of capital punishment. Although his work focuses on the late nineteenth century, a backlash toward penal reform and the procedural obstacles of “enlightened” justice had been brewing since the Constitutional era, when the so-called bloody code emerged as a target of anti-monarchist ire. Pfeiffer, Michael, Rough Justice: Lynching and American Society 1874–1947 (Urbana: University of Illinois Press, 2006).

80. Monkkonen, New York Homicide; and Roth, American Homicide.

81. Edwards, The People and Their Peace; Bloch, “Wife-Beating and Privacy.”

82. Monkkonen, Eric, “The Problem of American Homicide,” American Historical Review 3 (2006):7695.

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