Child Custody

The increasing incidence of divorce raised the related issue of child custody. Traditionally, fathers had retained custody of children, but this practice went into gradual decline in the nineteenth century as patriarchy weakened and the public trust concept in the doctrine of parens patriae strengthened.

State appellate judges forged two important doctrines in nineteenth-century child custody cases. The "best-interest-of-the-child" doctrine was first developed by Chancellor Henry De Saussure of South Carolina in Prather v. Prather ( 1809). The case involved a South Carolina mother who sued for custody of her child on the grounds that the father was a known adulterer. De Saussure broke from the common law rule that children belonged to their father and granted custody to the mother on the grounds that the child's best interests would be served. Custody disputes in the new republic became discretionary hearings in which the judge balanced a newly recognized right of the mother to the child against the assessment of the needs of the child.

The "tender years" doctrine also biased custody decisions in favor of mothers and contributed to judicial discretion at the same time that it institutionalized Victorian gender commitments. Under it, mothers gained a presumptive claim to their young children, and in the era after the Civil War many state courts insisted daughters of all ages were best cared for by their mothers. The Alabama Supreme Court in 1876, for example, explained that "no greater calamity can befall an infant daughter, than a deprivation of a mother's care, vigilant precept, and example." ³⁶ The tender years doctrine provided legal recourse to mothers based on their special status rather than any acknowledgment that they were as well equipped as men to provide for their children.

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From Patriarchy to Judicial Maintenance

"[E]xperience proves," explained Joel P. Bishop, one of the pioneers of U.S. domestic relations law, in 1871, "that the habits make the law, and not the law the habits." ³⁷ Market capitalism and republican ideology blended in the nineteenth-century United States to transform the status of husband and wife, parent and child. The century's lawmakers took account of these changes, leaving behind them an inheritance of significance to today's generation. A persistent belief that the private family was the foundation of national morality and that the law had to protect it amidst sweeping social change lent urgency to their efforts. Domestic relations law assured continuity within change, transforming "what at the beginning of the century had been the most private of public law into the most public of private law." ³⁸

Judicial maintenance replaced patriarchy during the course of the nineteenth century, and the fate of the family, like the fate of the economy, became a matter of public regulation. Judges and legislators emerged as custodians of the family, carving out a new legal status for children and married women. The former by 1900 had distinct rights, including the right not to be abused, mistreated, neglected or exploited, or denied support and education. The latter attained an equitable claim to property, the possibility of escaping an unhappy marriage, and a presumptive claim to their offspring. Their new position depended almost entirely on social assumptions that were translated into a special legal status rather than on any underlying belief that as a matter of human right they should be equal before the law with men.

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9
The Dangerous Classes and the Nineteenth-Century Criminal Justice System

The social reformer Charles Loring Brace in 1872 described what he called the "dangerous classes." These were, according to Brace, people "hidden beneath the surface of society" who formed the "great masses of the destitute, miserable, and criminal persons." ¹ Controlling the most fearsome element of the "dangerous classes," the criminal, absorbed the energies of nineteenth-century lawmakers and raised fundamental questions about the relationship between individual liberty and social stability. Criminal law involves the power of the state to deprive individuals of their liberty (through imprisonment, even death) and property (through fines and confiscations). Social stability requires that the liberty of some persons, whose behavior the state judges criminal, must be checked in the interests of the public.

Americans of the postrevolutionary era sought to reconcile these competing demands of liberty and social stability. They hedged state power in criminal prosecutions while founding the criminal law on a popular, decentralized basis. New state constitutions, the federal Constitution of 1787, and the Bill of Rights established explicit substantive and procedural safeguards against the abuse of criminal law. Efforts by Federalists to permit federal judges to try common law crimes collapsed with the Supreme Court's decision in United States v. Hudson and Goodwin ( 1812). The states, however, retained, through the police powers, ample authority to define and punish crime, but this authority was rooted in popular legislative bodies and not judges.

By the end of the nineteenth century this decentralized and popularly based approach to criminal justice had been displaced. The jolting social transformations that accompanied immigration, urbanization, and industrialization created pressures for a systematic and scientific approach toward the problem of crime, an approach that was not fully realized until the mid-twentieth century.

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Creating the Antebellum Criminal Justice System

Postrevolutionary Republican Attitudes toward Crime

Colonial Americans equated criminal behavior with sin, and they had no conception of rehabilitation. The purpose of the criminal law was to punish and deter. While colonial lawmakers believed that crime was endemic, they "did not interpret its presence as symptomatic of a basic flaw in community structure or expect to eliminate it." ²

The Revolution, however, unleashed powerful forces of market capitalism and individualism, and republican values began shortly thereafter to reshape Americans' understanding of the criminal law. The economic forces of the Revolution, for example, placed great value on holding and using private property for individual gain. Criminal law and the apparatus of criminal justice adapted to this change. Statutes dealing with economic crimes (theft, burglary, and such) began to appear in greater numbers. Prosecutors devoted less and less time to traditional moral offenses, leaving these matters to private discretion and judgment, even though laws against fornication, adultery, and Sabbath breaking remained on the books. At the time of the Revolution, for example, in Middlesex County, Massachusetts, two-thirds of all prosecutions were for immorality, and crime was regularly described as a sinful act. By 1800 more than 50 percent of all prosecutions were for theft, and only 0.5 percent were for moral offenses. ³ The dominant use of the criminal law in the early republic was "as defender of an economic and political order, and much less as guardian of a code of sexual and social behavior." ⁴

Enlightenment political thought also shaped postrevolutionary theories about crime and punishment. Although the evidence about the actual incidence of crime is contradictory, there is little doubt that Americans at the end of the eighteenth century believed themselves to be caught in an epidemic of crime and that bringing it under control was essential to the success of their republican experiment.

The Italian nobelman Cesare Bonesana, Marquis of Beccaria, presented to late- eighteenth-century Americans the most coherent explanation of the classical or rational school of criminology. Beccaria in 1764 published Essay on Crimes and Punishments. The first English translation appeared in Charleston, South Carolina in 1777, but two years before John Adams had invoked Beccaria in defending the English soldiers involved in the Boston Massacre. Thomas Jefferson Commonplace Book contained twenty-six extracts from the Essay, and Jefferson drew extensively from it in formulating his proposed reforms of Virginia penal law in 1776. Jefferson even included Essay on Crimes and Punishments as one of the six most important works on civil government.

According to Beccaria the criminal law was an instrument of liberty not a tool of repression. Liberty, he asserted, could only prevail by curbing the "despotism of each individual" from plunging society into chaos. ⁵ The legitimacy and the efficiency of the criminal law were intertwined, and Beccaria insisted that its success depended on its humane and rational qualities. Punishment had to be proportional to the crime; justice required the swift and predictable administration of punishment. Disproportionate penalties, vague criminal statutes, and unwritten judge-made law undermined the effective administration of the criminal law. Beccaria also opposed the death penalty, unlike most other thinkers of the Enlightenment, because it afforded an "example of barbarity" that actually encouraged rather than deterred wrongdoing. ⁶

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Beccaria's thoughts about the nature of criminal justice struck a responsive chord among postrevolutionary authorities, who confronted the dual tasks of formulating republican governments based on consent while curbing individual licentiousness. As one observer noted in 1784, "it must give every man of fealing [sic] the most sensible pain, when he observes how insufficient our penal laws are to answer the end they were designed to." ⁷ In Virginia at this time, the entire criminal justice system seemed incapable of bringing wrongdoers to justice. For example, one-third of those examined at the county level for felonies were discharged and one-third of those tried were acquitted. ⁸ Lawmakers confronted an actual crisis in criminal justice, a crisis in which republican government seemed susceptible to destruction not from foreign powers but from domestic criminals.

Date: 2015-01-29; view: 947