A History of Law and Policing- 621 BCE-1800

It was in 621 BC that the first recorded community code of conduct was introduced in Athens by the first recorded Greek legislator. His name was Draco. He was a nobleman, member of the oligarchy that ruled Athens at the time. Draco’s Code, written on tablets and distributed throughout Athens, ordered a system aimed at protecting life and possessions. It replaced the arbitrary interpretation and enforcement of Oral Law by an elite few (Foster).

Draco’s Code represents the first comprehensive common law of a major culture (history-world.org), and made protecting personal property a matter of community concern. Under the Draco Code, punishments for crimes against property were severe enough to spawn the adjective, draconian. Asked why theft of a cabbage should call for the death penalty, Draco is said to have responded, “Because I could think of no more severe punishment” (Foster).

The rule of law adopted in Draco’s Code for a community (or state) response to protect property is a primary cause for establishing community surveillance available through a police force. Similar codes like it have been adopted in various forms throughout the world. But fits and starts in widespread use of its most valued tool, public surveillance, reflect the tug between the democratic ideal of Liberty and that of Justice, as well as to what extent crime prevention strategies are embraced. Perfect Liberty means no one investigates the personal affairs of anyone. Perfect Justice brings offenders to face their accused in court, or better, stops the crime from being committed altogether, and demands the watchfulness of Allan Pinkerton’s All-Seeing-Eye-that-Never-Sleeps logo.

The first use of widespread public surveillance I could find occurred before the turn of the first millennium when Gaius Octavius, the grand nephew of Julius Caesar, established the Praetorian Guard. Shortly after ascending to power in 27 BCE and proclaiming himself Caesar, Octavius established the elite guard of nine-thousand men. Three thousand were billeted in Rome, in homes among the people, rather than a central barracks, as was the custom, so better to be on the lookout for crooks and malcontents. Captured Nubian slaves were also used for crowd control and patrols. Their color, dress and stature made them stand out among the Mesopotamian population; making them a visible deterrent to crime future uniformed police would try to attain (Real Police Net). A special unit of Praetorian Guard, known as speculatore, also used disguises to infiltrate public events (History.com).

Modern policing in the United States is predominantly a product of “English Anarchy” and a Continental monarchy system of spying, improved on by Emperor Napoleon Bonaparte. English Anarchy is a term I use to describe the number of feudal families vying for the Crown of England, leaving no one in charge for very long. Early law enforcement until the 1272-1307 reign of England’s Edward I, son of Henry IV, was largely a clan affair. As formalized in the Statute of Winchester in 1285, members of a clan or small township were responsible for crimes within their borders and expected to make restitution and exact punishment on members engaged in crime (Criminality, Armitage, p. 20).

During this time much of the lawlessness came from feudal acts by local barons, whose armies attacked and pillaged villages of competing barons. Working through an early Parliament, Edward established Justices in each township to keep the order. As a representative of the King, any attack on any local Justice was considered a traitorous attack on the Crown, and dealt with as such. Edward was successful fighting feudalism in Wales, where after the defeat of the Barons of Eversham in 1265 he established the English system of administration (Criminality). He died on the way to Scotland in 1307 to fight a similar campaign there against Robert Bruce.

In 1361 the Justice of the Peace Act was passed by Parliament aimed at consolidating the power of the various justices, sheriffs, constables, coroners, hundreds, etc. in to a Justice of the Peace in each county (Foster). This system of justice worked well enough in the early small towns and shires from 13th to 18th Century England. But, as we will see later, the pressures of London’s massive growth during the Industrial Revolution, both in population and wealth, brought about major shifts in law enforcement tactics used and allowed by a skeptical public.

Building the French Surveillance State from Louis XIV to Napoleon

Moving 250 years on and across the English Channel, we encounter the building of the French secret surveillance state. Surveillance is, appropriately, a French word meaning to watch over. We don’t know if Louis XIV read Sun Tzu (The Art of War), but he took the lesson to heart to keep his friends close and his enemies closer. He built Versailles Palace, where a court of 10,000 took up residence, and he could keep a watchful eye. Louis de Rouvroy, duk de Saint Simone was one of the courtiers, reportedly able to maintain a tenuous position in court by immersing in the intrigue and always knowing a great deal of privileged information (St. John).

According to the Duk’s memoir, Louis XIV

“. . . always took great pains to find out what was going on in public places, in society, in private houses, even family secrets, and maintained an immense number of spies and tale-bearers. These were of all sorts, some did not know that their reports were carried to him; others did know it; there were others, again, who used to write to him directly, through channels which he prescribed; others who were admitted by the backstairs and saw him in his private room. Many a man in all ranks of life was ruined by these methods, often very unjustly . . . .” (www.louis-xiv.de).

Louis’ heirs, XV and XVI, leading up to the French Revolution also maintained eyes and ears, predominantly on the aristocracy, who would usurp their power given the chance. During the Reign of Terror that engulfed the French Revolution, under leadership of Robespierre and the Jacobites, thousands of dissidents and counter-revolutionaries were identified and put to death on the word of secret informants. It ended only after Robespierre, himself, was accused of being an enemy of the state and sent to the guillotine (Finnemore).

With Napoleon, things got little better. Under Bonaparte, according to Jean Paul Bertaud, a Professor Emeritus of History at La Sorbonne in Paris, and a specialist on the French Revolution and military history, “You go to a salon, there’s a spy. You go to a brothel, there is a spy. You go to a restaurant, there is a spy. Everywhere there are spies of the police. Everyone listens to what you say. It’s impossible to express yourself unless Napoleon wants you to” (Public Broadcasting System).

During the Enlightenment, though (1685-1815), at least on the Continent, a strong police state came to be seen as necessary and desirable to maintain order. According to Hicks, “a strong independent government and a powerful ruler were believed to be the pre-conditions of the spiritual and material welfare of the subjects.”

Eugene-Francois Vidocq’s Brigade Sûreté

One of the forces that promoted the “French method” of policing and its strong reliance on undercover informants came in 1809. The brash, young ex-con from Nantes, Eugene-Francois Vidocq, grown tired of life on the run, made a deal with Monsieur Henry, the Paris Prefect of Police. He would use his knowledge of the underworld to be an undercover operative in return for protection from future arrests (Fisher). With his knowledge of the underworld, and with the help of networks of informants, by 1812 he was chosen to head the newly formed Brigade Sûreté, the state Security Brigade (Britannica, Secrest, p. 25-26). He and his hand picked crew of former cons had great success in their role, seeing to over 800 arrests in their first year of operation and helping drop the Paris crime rate by 40% by 1820 (Fisher). By 1827, with a division now numbering 30, Vidocq’s successes would help inspire formation of both Scotland Yard and, later, the FBI (Gunter, et al, pp. 5-6).

Interesting aside– The Federal Bureau of Investigation (FBI) was established in the United States as the Bureau of Investigation as a sub-office of the US Department of Justice, in 1908. The US Attorney General? Charles J. Bonaparte, a great-nephew of Emperor Napoleon (Office of Inspector General, Special Report, 2005, Wikipedia).

After reading Vidocq’s memoir, detailing his use of investigative methods he’d developed, Isaiah Lees, San Francisco’s first detective, hired in 1852, marveled, “The great detective’s record keeping, his stress on careful investigations, and the plodding detail work upon which success depended, all made so much more sense now” (Secrest p. 63). Lees, a master of undercover, would be one of the first American detectives to keep files of cases, as pioneered by Vidocq, by modus operandi, mode of operation, including detailed physical descriptions and photographs. By 1860, Allan Pinkerton was also being called the “American Vidocq” (Times-Picayune).

Jonathan Wild, Head Thief Taker

As the French security state was being constructed, haut police taking up crime and sedition prevention through widespread spying (Williams), the early 18th Century in England was still made up of a very localized system of unpaid magistrates, sheriffs, constables and watchmen doing one year volunteer stints, and law enforcement was widely variable and highly corrupt. According to Friedman, “In 18th century England a system of professional police and prosecutors, government paid and appointed, was viewed as potentially tyrannical and, worse still, French.”

With the Industrial Revolution, London was undergoing immense growth. The population was growing and also the economy, thanks to the American colonies and other parts of the empire producing prodigious wealth. With wealth came more opportunity to separate people from that wealth. Growth in London was unplanned, and there were few defined “neighborhoods”, so rich and very poor were intermingled and there was little safety, especially after dark, due to poor lighting (Pringle, p. 52 Armitage, p. 10).

Bringing a criminal to justice was left to the victim to find the perpetrator and bring them to a magistrate, where they were again responsible to prosecute the case (Friedman). There were men willing to take on the risk of retrieving stolen goods and even collaring the thief, if the price was right. One of the first to see the opportunity was Jonathan Wild. Early policing was marked by a high degree of corruption, and few were as corrupt as the reputed first ever private detective.

When Jonathan Wild arrived in London in the early 18th Century, it was a criminal’s paradise. As the proprietor of a bordello, he became well acquainted with the London underworld (Gunter, et al, p. 4). By 1712, Wild had established what is widely considered the first private detective agency, recovering stolen loot for a fee, and capturing the perpetrator for a larger fee. Business was brisk, and Wild employed a great number of undercover operatives to help with his investigations.

Lured by the £40 Parliamentary Reward offered for capture of felons, Wild joined the growing ranks of thief-takers, a profession much like a bounty hunter. Eventually, he became London’s reputed Head Thief-Taker (Gunter, et al, p. 4, Pringle, Ch. 2). Playing both sides against the middle, Wild could act both as a fence for stolen goods, which he returned to the owner for a finder’s fee, and extort money from those captured to allow their escape from the gallows, the likely outcome of a felony conviction (although, because of a very liberal court system that safeguarded the rights of the accused, who had the right of trial through habeas corpus, freedom from torture to get confessions, and trial before a jury, as well as bribery, a lesser sentence could be imposed, and hanging is estimated to have occurred in “only” about 20-40% of felony arrests (Friedman, Pringle, 50-52).

Wild also had a formidable alliance with a network of informants and fellow thief-takers, who were kept off the end of a rope by their cooperation with him in solving crimes. He was also known to help facilitate the commission of crimes by others, then turn in the participants for the reward (Gunter, et al, p. 4, Pringle, p. 37).

Wild was hanged in 1725 before a large, boisterous crowd, willing to pay to get at the better vantage points. A sensational trial had revealed all the facts, and his actions sullied the reputation of private detection for many years to come. But, in spite of these doubts, thief-taking was the predominant mode of addressing criminal behavior in London for the next century.