Technology and the Law

PETER: We’re back with BackStory. I’m Peter Onuf.

BRIAN: I’m Brian Balogh.

ED AYERS: And I’m Ed Ayers. Today on the show, the history of police and the policed in America.

BRIAN: Let’s consider a time not so long ago when there was no such thing as “the police” in America. Crime was kept in check by a hodge-podge of constables, sheriffs, urban night watches, and most importantly, snoopy neighbors. But it wasn’t an increase in crime that led to the development of the first police forces. It was civil unrest.

PETER: In the years following the American Revolution, protest by men in the lower echelons of society were a standard feature of the social landscape. Elites tolerated them, sort of the way you’d tolerate bad weather. The Boston Tea Party, after all, was still pretty fresh in people’s memories. Protests still had a patriotic and democratic ring to them.

BRIAN: But in the late 1830s, the nation’s steadily growing economy went bust, more bust than it had ever gone before. It was America’s first great depression. Suddenly, protests by people in the poorer classes took on a different, more threatening cast. And in Philadelphia in 1844, those protests boiled over into bloodshed.

ALLISTER ROBERTS: Well, it was essentially a tension between Catholics and Protestants, immigrants and native born Americans.

PETER: This is Allister Roberts, a law professor at Suffolk University.

ALLISTER ROBERTS: And that tension, I suppose, was always in the background. But it was managed in economic good times. But when the economy went south, everything began to deteriorate very badly and turned into a full scale conflict that the authorities tried to intervene and put down. And eventually, they did. The city was eventually put under martial law.

PETER: Well, tell us a little bit about what kind of capacity for maintaining order a city like Philadelphia would have had at that time.

ALLISTER ROBERTS: It would have been primitive. There was no such thing as a municipal police force in the modern sense in any major American city at the time. And so essentially, if a riot got out of hand, a sheriff might try to put together a posse. But that was tough to do. And then, if things got really out of hand, you would call in the army or cavalry to put things down.

PETER: Right. So in effect, there’s a kind of a war going on in Philadelphia, or at least that’s the way frightened officials are seeing it?

ALLISTER ROBERTS: Well, that’s precisely what was happening at the worst moments of 1844. The army is called in. They’re bringing in artillery. They’re bringing in cavalry. The rioters themselves are bringing up cannon from the ships in the port. And at one point, they’re actually firing cannon at each other down the streets of Philadelphia. And one of the upshots was that Philadelphia began to realize there had to be a better way of maintaining order in the city. And a lot of other American cities watching Philadelphia or dealing with their own protests began to realize that they needed to find a better way to control dissent as well.

PETER: Yeah, so tell us a little bit about the formation of police departments that seemed to set a precedent for our modern understanding of what police do.

ALLISTER ROBERTS: Well actually, Britain in the 1820s and 1830s had been going through a roughly similar phenomenon. Industrialization was going full speed. A lot of unrest among people who were losing their jobs because of the introduction of new techniques or losing their jobs because of periodic economic crashes. So London, the London authorities in the mid 1830s establish the first police force. And interestingly, they don’t do it to control crime. They’re doing it to maintain public order, to control protests.

The American municipal authorities basically say, OK, we’re going to take a page from the British here. We’re going to establish a municipal police force, a civic army, as it were. And we’re going to use that in place of the military to anticipate unrest and maintain order.

PETER: So why was this expedient of turning to a professionalized, civic army? Why was that such a momentous turn in the history of policing? We sort of take for granted now. Our police are in uniforms. They’re well-armed, maybe too well-armed. But that would have seemed to many American observers in the early 19th century to be a violation of fundamental American principles.

ALLISTER ROBERTS: Right. As you say, the phrase they were using at the time was a civic army. We need to build a civic army, as opposed to the conventional army. And there’d been a lot of resistance to that for a combination of practical and ideological reasons. The first was it seemed like a very anti-democratic thing to do.

PETER: Right, right.

ALLISTER ROBERTS: Here is a country that’s just freed itself from the empire. It’s committed to the notion of self-rule. And to some degree, the idea is you don’t need a police force to discipline the people because the people ought to be able to discipline themselves. The critical point is that, I think, in the earliest phases, there was a certain degree of elite sympathy for what mobs were doing. And of course, by the 1830s, 1840s, the tone is beginning to change.

PETER: Yeah, the story you tell is one of increasing capacity of police authorities to maintain order. Could give us the big picture of how that capacity has changed over time? And in some ways, this is a reflection of the changing character of American society generally?

ALLISTER ROBERTS: Well, that’s right. So the premise is that the free market economy can be a roller coaster. In good times, no one’s worried about managing disorder. But in bad times, things can go very bad. And government has to develop the capability for dealing with unrest. And they do it in a couple of different ways. They expand their policing capabilities. They improve their doctrines on how to deal with unrest. They upgrade their equipment. They tighten the law about the time, place, and manner in which protests can happen. They even start to redesign urban space in such a way that it’s easier to control unrest when it does break out.

And this is a recurrent phenomenon. So if you thought that the great thing about the free market is that it can basically operate itself, the answer is, that’s not right.

PETER: No, not exactly.

ALLISTER ROBERTS: And one of the ways in which that’s not right is that you have to have the policing capabilities to deal with the unrest that will inevitably come during slumps in a free market economy.

PETER: Allister Roberts is a law professor at Suffolk University in Boston. His forthcoming book is The End of Protest: How Free Market Capitalism Learned to Control Dissent.