History of U.S. Criminal Justice and Policing Systems

Introduction to Policing in Democratic Societies

It is undeniable that criminal justice and police activities are integral parts of every relatively peaceful nation in the world. Without the actions and standards set forth by the agencies that "protect and serve," many wrongs would go not only unpunished but possibly unnoticed as well.

The basic purposes of policing in democratic societies are: (1) to prevent and investigate crimes; (2) to apprehend offenders; (3) to help ensure domestic peace and tranquility; and (4) to enforce and support the laws — especially the criminal laws — of the society of which the police are a part (Schmalleger, Chapter 5 Summary).

Throughout the developmental history of modern policing and criminal justice there have been many changes: changes in focus and standard, changes in the nature of crime, and changes in the concept of justice itself. The very term professionalism has completely evolved across the board, more so in the policing industry than almost anywhere else. A historical perspective on the field of criminal justice and policing in America will assist any scholar interested in the state of police work today.

English Roots of American Policing

The American policing system is largely associated, historically, with our British forebears. Much of its policy and standards are historically grounded in the old traditions of English law enforcement. Although not as decentralized as in the United States, the English system gave impetus for the emergence of policing systems in the United States, and a detailed examination of its organization, structure, and functions is required for a true understanding of how modern policing has developed in both England and the United States (Hirschel and Wakefield 68).

The historical timelines of the two systems run parallel in their development, particularly after the legitimation of American institutions began in the late nineteenth century. Understanding the standards and history of the English system helps illuminate the importation of practices associated with the close relationship between the two countries' policing institutions as they evolved into what they are today.

With the old English institution of the "tithing man" comes the first demonstration of organized police work. The origins of these arrangements are to be found in the tribal customs and laws of the early Danish and Saxon invaders (Reith, 1952a; Lee, 1971; Critchley, 1967; Smith, 1985). The earliest references to some form of policing official are to a "tithingman" who was responsible for collecting fines levied on the people in his tithing (Hirschel and Wakefield 69). The dependence of officials and government agents upon the common man to police himself through the representation of collectives can be seen clearly in this institution.

All males by the age of twelve had to be brought into a tithing — a group of ten men. These groups were then organized into a collection of ten tithings, called a "hundred." The individual assigned responsibility for the hundred was called a "hundred man." Since the Anglo-Saxons had divided the realm into shires, the hundred man was obliged to report to the shire reeve, who was the overseer for the ruler (Hirschel and Wakefield 69).

It is from this collective institution that we receive the name for one of the earliest forms of overseer of a policing collective — the sheriff. While in charge of order for the shire, the sheriff (as he came to be known) had responsibility not only for punishment for failure to pay fines, but also for other "breaches of the peace." The men in a tithing were mutually responsible for each other's behavior; if any one man committed a wrong, the rest were held liable. This laid one of the foundations of a kinship-style policing system. After the Norman Conquest of 1066, the tithings evolved into the frankpledge system, which Critchley (1967:3) called "the most important police institution in the Middle Ages" (Hirschel and Wakefield 69).

It is from these institutions that we receive the standards for militia police, as well as the idea of keeping the "King's Peace" — a term in which "King" represents not only the ruler or top liege lord, but the king as an embodiment of the state itself.

Colonial America and Early Legal Foundations

The General Court ratified the appointment of a constable in each township. His duties included keeping the king's peace, apprehending suspicious persons and bringing them before the court of assistants, impaneling a jury to determine cause of death, "measuring of lands, and sealing of weights and measures," convening town meetings, collecting taxes, promulgating "Instructions" of the General Court, and serving executions by selectmen (Ward 77). Though the position of sheriff was not always the most favored, the standard was upheld through sanctions against men who refused the service. Refusal to serve as constable necessitated a 50-shilling fine, and if a constable neglected to collect taxes or issue a summons, he was liable to pay himself the defaulted sums (Ward 77).

These foundations lean toward the concept of the state as the victim of the loss of peace upon the king's lands and roadways. From this emerges the foundational concept of the state as the prosecutor of crime, much of which is laid out in the Leges Henrici Primi — the laws of Henry I. The Leges Henrici Primi is a collection of Anglo-Saxon laws dating from the early twelfth century, compiled before the common law began its great progress. Although supposedly reflecting the laws in force during the reign of Henry I, the Leges are incomplete as a treatise but do follow a theme of royal jurisdiction (Powell's "Leges Henrici Primi").

In addition to the Leges Henrici Primi, there are further sources for the origins of the modern policing system. American colonial history records many linear ideas in its great documents, not the least of which is the Magna Carta. In the course of Plymouth Colony history, we find emerging from the enactment of codes and statutes an admiration for the fundamental rights of freemen derived from the Magna Carta. In the preamble to the 1636 code, and subsequently re-enacted, no laws could be made except by the consent of the people "according to the free liberties of the State and Kingdome of England and no otherwise" (Ward 79).

The Magna Carta can be seen as a foundational work associated with the establishment of due process and many other legal ideals, including the constitutional focus upon individuality and the inalienable rights of freemen, to be protected by a duly elected and/or appointed police system. Concerning the administration of justice, a guarantee of substantive due process is found in the sweeping clause in the preamble to the code of 1671: "no person in this Government shall be endamaged in respect of Life, Limb, Liberty, Good name or Estate, under colour of Law, or countenance of Authority, but by virtue or equity of some express Law of the General Court of this Colony, the known Law of God, or the good and equitable Laws of our Nation suitable for us, being brought to Answer by due [process]" (Ward 79).

It is within these texts of English heritage that the laws and standards of the American policing system can be seen to dwell. Even before the first Continental Congress in 1776, events were unfolding that demonstrated a need — and regional answers — to the policing requirements of the new nation. As early as 1767, the Regulators, a vigilante group, emerged in the crime-ridden back-country of South Carolina (Vila and Morris xxxi).

Conclusion: Evolution of American Criminal Justice

Though it is clear that the historical development of policing in America has its roots in the foundations of the English system, it is also clear that many of the innovations and standards of modern policing would not have been possible without the circumstances and minds of those in the United States.