Rare Books Collection: Early American Criminal Law Reform

The Riesenfeld Center holds an interesting range of works on early American criminal law. Some of these highlight new approaches to crime and punishment in the colonies and early republic. The material offers food for thought on the history of American criminology and penology, and reveals trends that influenced philosophical shifts in the later 18th century, particularly around Philadelphia, which found itself at the forefront of innovation.   

 

England's criminal laws featured more than 200 capital offenses by the late 18th century and had a natural influence in early America. Penalties in the colonies were also harsh, even if executions were less frequent, due to a smaller population and a more inchoate legal administration, and in some places more restrictive statutes and interpretation. In the colonies and under English common law, public shaming, including wearing a visible letter, bearing a permanent mark of the crime, or being kept in a pillory or stocks, was not uncommon, together with whipping. Fairly steep fines for lesser offenses were also common. 

 

Prisons had a long history by then, but the movement toward prisons as a particular supervisory system supported by theories of work and rehabilitation coalesced around practical and religious concerns. In early modern England, workhouse prisons were constructed for individuals considered the "idle poor," to make them more productive. The movement was strengthened by a religious belief that vagrants and the idle, as well as certain criminals with whom they were often grouped, could be morally improved by work in a disciplined setting. Still, not unusually, early prisons threatened the lives of their inmates with unsanitary conditions, neglect and worse.

 

In early America, Quakers were leading voices for moral rehabilitation. In Quaker William Penn's "Frame of Government" for Pennsylvania of 1682, the outlined penal regime provided that "all prisons shall be workhouses for felons, vagrants, and loose and idle person; whereof one shall be in every county." Another clause had it that "all prisons shall be free, as to fees, food and lodging," taking aim at practices that tended to the extortion of inmates. Penn's workhouse provision for felons was significant in a legal system that prescribed hanging for felonies. In the first statutes passed by Penn's assembly in 1682, death was decreed only for murder, though the colonial assembly's moderate criminal laws were rejected by the English government. Felons in the colonies, however, as in England, sometimes got off more lightly for first offenses. They availed themselves where they could of "benefit of clergy," even as laymen, and could receive a lesser penalty (often branding). This legal fiction, along with pardons, sometimes mitigated the harshest criminal penalties. 

 

The Enlightenment also contributed new strands of thought. Most importantly, the Milanese jurist Cesare Beccaria (1738-1794), in his famous Essay on Crimes and Punishments in 1764, deeply questioned the rationality and efficacy of the death penalty and judicial torture, and argued that penalties must be made proportionate to crimes. Punishment beyond what was strictly necessary was tyranny. Beccaria's work was quickly translated from Italian and became an instant classic in Europe. As Professor John Bessler has demonstrated, the Essay also had a profound impact in the colonies, where it was read by the likes of Adams and Jefferson. In attempting to reform Virginia laws in 1776, Jefferson proposed a bill that would allow the death penalty only in cases of murder or treason; it was defeated by one vote. Some states at least adopted language in their early constitutions that sought to reduce and avoid "sanguinary laws."

 

Criminal law reform and prison reform were enduring issues in the early republic. One center of innovation was Philadelphia, where strands of Enlightenment and Quaker reformist thought met. There leading intellectuals, like James Wilson and Benjamin Rush, inveighed against harsh punishments, particularly the death penalty, and pressed on arguments for greater proportionality. Philadelphia's Walnut Street Prison became an early experiment in a new penology. Built in 1773, it was modified in 1790 to treat serious felons (who were subject earlier to the death penalty) to solitary confinement. This was the original idea behind a "penitentiary." The Quakers who championed the project thought that intense personal reflection would lead to repentance and moral rehabilitation, and were ignorant of the damage caused by isolation.

Visitors to the prison, like Robert Turnbull in A Visit to the Philadelphia Prison (1796), observed work done in skilled workshops of "carpenters, joiners, turners, shoemakers, weavers and taylors," whose maintenance was paid for by the profit of their labor. Turnbull praised the system and the newly sanitary conditions, but noted the silence imposed on prisoners and the extent of prison segregation. In his On the Prisons of Philadelphia (1796), European observer the Duc de la Rochefoucauld (1747-1827) lauded the absence of physical punishment from guards or violence between inmates. He found the meals, which included meat, commendable, and explained a system whereby those judged as rehabilitated by overseers were released with some money from their labor. Despite the praise, the system was draconian in new ways. But it appealed to contemporaries and influenced the design of many other prisons, being later partly modified by the "Auburn system," which shared similar features.

 

These and other works permit some comparison of these systems in their idealized forms, and show development, decay, variations, criticism, and legislation that attempted further reforms. Recent work sheds good light on these issues of early American criminology and criminal law reform, including several below:

 

Bessler, John D. The Celebrated Marquis: An Italian Noble and the Making of the Modern World. Durham, N.C.: Carolina Academic Press, 2018; and idem, The Baron and the Marquis: Liberty, Tyranny, and the Enlightenment Maxim That Can Remake American Criminal Justice. Durham, N.C.: Carolina Academic Press, 2019.

 

Rubin, Ashley T. The Deviant Prison: Philadelphia's Eastern State Penitentiary and the Origins of America's Modern Penal System, 1829-1913. Cambridge: Cambridge UP, 2021.

 

Shapiro, David M. "Solitary Confinement in the Young Republic." Harvard Law Review 133, no. 2 (2019): 542-98.    

   - Ryan Greenwood, Curator of Rare Books and Special Collections

Rare Newspapers in the Collection

Print newspapers are not always considered particularly collectible in libraries. But they are excellent time capsules for their historical moments and often record "firsts:" the first mention and immediate reaction to significant historical events. Legal events may seem less newsworthy than a moon landing, but some are special and deserve (and have received) attention. One of the most famous legal "firsts" in an American newspaper, the first publication of James Madison's June 8, 1789 draft amendments to the Constitution, were circulated in the June 13 issue of the United States Gazette. News of important legislation, court cases, and their resulting decisions can make for interesting, popular collection items; the three below are examples from our collections.    

The opening of the Northwest Territories was one such landmark event. The Territories themselves were established by the Northwest Ordinance of 1787 and renewed by a similar act in 1789. The historic legislation created what would become Ohio, Indiana, Illinois, Michigan, Wisconsin, and Minnesota east of the Mississippi. The new 1789 Act was printed on September 3, 1789, in the Pennsylvania Packet, an influential early newspaper and the first successful daily in the young United States. Such circulation of the new law helped induce westward settlement, though this was sharply contested by the land claims of American Indians and led to periods of war and simmering conflict.

The National Intelligencer was a long-running and significant political reporter that published government documents and Congressional debates. Run by Joseph Gales and William Seaton, the Intelligencer was the official government printer when it first published the decision in Gibbons v. Ogden on March 6, 1824, marked also as its earliest printed announcement. The landmark constitutional case established the basic interpretation of the Commerce Clause, affirming the power of Congress to regulate interstate commerce.

The Law Library's Clarence Darrow collection includes a wide variety of work related to Darrow's life and career, represented most extensively by his letters, as well as publications, briefs, speeches, personal books, and other material. It also contains selected newspaper accounts of major trials that he was involved in. Few were more notorious than his defense of Leopold and Loeb, the 1925 "thrill killers" who Darrow saved from the death penalty. Pictured is one issue from several papers in the collection that headlined the trials and focused the spotlight of national attention on it. These kinds of print media coverage can capture the contemporary interest and response to events whose white-hot celebrity is otherwise harder to communicate to audiences with the passage of time.  

   - Ryan Greenwood, Curator of Rare Books and Special Collections

Upcoming Exhibit: Commission on the Harlem Riot, 1935

In our upcoming fall exhibit, "Law and the Struggle for Racial Justice," several items are reports and petitions that reflect on the causes and remedies of social injustice. All of these, including a subcommittee report written in the wake of the Harlem riot in 1935, offer recommendations for reform that still resonate today.   

The Harlem riot of 1935 has been called by several scholars the first modern race riot. A Black Puerto Rican youth, Lino Rivera, was apprehended by a Harlem, New York, shop employee for stealing a penknife. The boy bit the employee but was later released by police. A false rumor that Rivera had been beaten to death in the shop led to a riot the same night, during which more than one hundred were injured and arrested, and three African Americans were killed. Mayor Fiorello LaGuardia set up a biracial commission of noted figures to investigate the causes of the riot, likely at the recommendation of Walter White, then secretary of the NAACP.

The commission included Eunice Hunton Carter, the first African-American woman prosecutor in the Manhattan District Attorney's office; Morris Ernst, co-general counsel of the ACLU; A. Philip Randolph, the prominent labor and civil rights leader; and Countee Cullen, the poet and novelist, among others.    

The commission set up several subcommittees, tasked with reports in areas including Crime and Police, Housing, Education and Employment Discrimination. More than 150 witnesses testified at a series of public and private hearings before the commission. 

Published a year later, the resulting report was more than 100 pages. It outlined the events of March 19th that led to the riot and recommended reforms by the City government in Harlem in relation to housing, health care, education and policing. 
  

The subcommittee report displayed in the upcoming exhibit is a separate typescript addressed to Mayor LaGuardia by Arthur Garfield Hays, a noted lawyer and the subcommittee chair. One other copy of the report is recorded, held at the New York Public Library. The report discusses the events of the riot and subsequent incidents involving police. Just as the overall report acknowledged the professionalism of many officers involved in the events, the subcommittee report thanks the police chief and several officers for cooperating with the investigative commission. 

Nevertheless, the report addresses the incidence of police brutality during and after the riot, citing particular officers for avoidable and unnecessary deaths and other instances of violent misconduct. Among remedies, the subcommittee recommends that police be better trained on the limits of their authority to use force and on due process rights; that rapport with the community should be fostered rather than antagonism; and that greater accountability was necessary. Regarding the last, the report recommends the creation of a biracial committee in Harlem to receive and evaluate complaints of police misconduct, then to report them directly to the office of the Commissioner of Police. The subcommittee advises that resulting criminal misconduct cases be punished not only internally but turned over to the District Attorney's Office for prosecution. The report concludes by arguing, as the general report would examine in greater detail, that in Harlem the wider social inequalities faced by the Black community in relation to housing and rent, employment and schools also had to be addressed in order to restore social order. 

   - Ryan Greenwood, Curator of Rare Books and Special Collections

New Rare Acquisitions: A Clarence Darrow Letter and More

The Law Library and Riesenfeld Center have recently added several notable items to its collection of letters, writings, and other material by the great American trial lawyer, Clarence Darrow. The new letter in particular augments the Library’s preeminent national collection of autograph letters by Darrow, and captures his deeply-held views on capital punishment.

Written in August 1930 to Maria Sweet Smith, Darrow outlines in the letter his fierce opposition to a campaign against capital punishment proposed by Smith. Although a lifelong opponent of the death penalty, Darrow was unimpressed by Smith's approach, which argued that abolishing the death penalty would reduce crime. Smith suggested that they could convince potential donors to the campaign of the high economic costs of crime, an approach that Darrow rejected out of hand. He believed that an abiding mercy toward the human condition left little room to support capital punishment, and that reform must be pursued from that direction. As he saw it, the fight against the death penalty had to be led by “the poor and the humane and the idealists."

In addition to the letter, we have acquired several other items connected to Darrow's famous and contrarian views on crime and punishment. Among these are a British author's darkly satirical take on hanging and other forms of capital punishment, A Handbook on Hanging, which the author inscribed to Darrow in 1929, and a 1903 first edition of a symposium featuring Darrow's views on incarceration. We also recently picked up a 1993 reprint of one of Darrow's articles on crime and punishment, printed in an anarchist magazine. Darrow's writings and speeches, often articulating his trenchant and iconoclastic views, have remained popular and continue to be printed today.

To this material, we have also added photographs and other images of Darrow to our collections. These include an excellent caricature of Darrow by the American artist Aline Fruhauf (1907-78) and a photo of Darrow, John Thomas Scopes, and William Jennings Bryan at the infamous Scopes "Monkey" Trial, which is signed by each of the trial's great protagonists.

   - Ryan Greenwood, Curator of Rare Books and Special Collections

  


 

Our Rare Chinese Law Collection

Recently we were visited by Yao Chen, the librarian of the East Asian collection in Wilson Library here on campus. Yao is working on compiling an important bibliography of rare Chinese books at the University, which involves updating the records and information we have about the books. It is a great project that allows us to learn more about our own collection also, which has been exciting. 

Our collection of Chinese law was largely acquired from the Northwestern Law Library as a single acquisition. Although not extensive, a number of multi-volume sets push the size of the collection over 100 volumes and fascicles. The earliest title in the collection, published in 1810, is the Ta Tsing Leu Lee in its first English translation by George Thomas Staunton. Often transliterated today as Da Qing lüli, these are the "Laws and Precedents of the Great Qing," the law code of the Qing Dynasty (1644-1911), which was periodically updated over their long reign. The criminal code covers a broad range of subjects, from offenses related to ritual and familial piety, to marriage, public administration, tax, property and violent crimes.   

Other items in the collection are also of note. We hold one late Qing series of bulletins on administrative law, as Yao mentioned to us, that is very rare and will require a detailed comparison to holdings in other libraries. Many other titles relate to criminal law and touch on subjects that are worth the attention of the historical researcher who can navigate them. In one example, pointed out by a visiting student, some penalties under the Qing dynasty could be reduced if the guilty party's family would suffer from a loss of livelihood. In other cases, like crimes against the state, penalties were severe, resulting in the forfeiture of family property and the execution of family members. 

After Staunton's translation of the Da Qing lüli, the next earliest titles in our collection are also among the most unique. Yao very kindly pointed these out to us during her research. The works relate to the legendary judge Bao Zheng (999-1062) and the famous administrator Hai Rui (1514-1587). Both figures have been mythologized in Chinese culture (Bao Zheng has been taken sometimes as divine). Both have also been interpreted as paragons of uncompromising justice, and as bulwarks of law against corruption. They are still portrayed today in literature, television (here, for example), cinema and other forums in China, though more innocuously than at points in the past. In the case of symbolism associated with Hai Rui, a controversial play about his career provided the spark for Mao Zedong's Cultural Revolution in the 1960s.

The two works in our collection related to Bao Zheng and Hai Rui are similarly fictionalized. The first title, transliterated as Xiu Xiang Longtu Gong An (1816), are stories related to Bao Zheng, and the second, Hai Rui da Hong Pao Quan Zhuan (1813), stories about Hai Rui. In these fictitious criminal cases, well-dramatized wrongs are investigated and righted by the protagonists. Judge Bao, in particular, was and is a very popular protagonist in gong'an, or crime stories, of which our work represents an example. Somewhat like "Law & Order" today, the stories were popular among Chinese audiences under the Ming dynasty, and certainly during the Qing, when our books were published. Our titles are appropriately mass market books intended for wide distribution. The quality of printing is also appropriate for a mass market. Unusual even for more literary works in our collection, our edition of stories about Bao Zheng is illustrated with scenes from the tales. The woodblock printing required single carved blocks to create the engaging images, some of which are included below. For more on reading illustrated fiction during the period, see here.

Although modest in scope, the collection of Chinese law is diverse and interesting, and certainly worth perusal and study.

   - Ryan Greenwood, Curator of Rare Books and Special Collections

        

Recent Rare Books Acquisitions: Criminal Law

Over the late spring and summer, the Riesenfeld Center has added notable titles to its collection, several of which fall in the area of criminal law. Our most important active collecting area related to criminal law is the Clarence Darrow collection, which not only includes the nationally preeminent trove of Darrow letters, but writings by and about the famous American trial lawyer, who championed criminal defendants facing great odds throughout his career. At the same time, other areas of the collection touch significantly on notable criminal trials, criminal law reform, and the philosophy of punishment. 

Among works of philosophy, we recently acquired the Essays (1824) of the English barrister and jurist Basil Montagu (1770-1851), a friend of William Wordsworth and James Mackintosh, who rejected the harshness of the death penalty in England, wrote to reform bankruptcy law, and advocated for his beliefs in a range of published works and as a member of several societies. Montagu's essays add to key reformer Jeremy Bentham's Traités de législation civile et pénale (1802), a recently-acquired first edition published first in French, which lays out Bentham's revolutionary utilitarian views on law and punishment. 

Another acquisition, a copy of the Report from the Select Committee on the Criminal Law of England, bound together with the Further Report (London, 1824), is among the very few copies listed in institutions. The parliamentary committee that authored the reports contributed importantly to the movement for 19th-century English criminal law reform, begun under the influence of Cesare Beccaria, Jeremy Bentham, and figures like Samuel Romilly and James Mackintosh in Parliament. In 1819-20, popular support for reform led to a more urgent awareness among lawmakers, and in 1823 the death penalty was made discretionary in cases not involving treason or murder for the first offense. In 1824, Parliament took up forgery, which became the focal point of death penalty reform efforts and of our reports. The committee treated in an analytic way what kind of crime forgery was, and its relation to fraud; and surveyed the history of forgery legislation in England. The work was the product of extensive legal expertise, and the reform of forgery law became a key precedent for 1830s reforms, which saw many of the over 200 capital offenses in England abolished by the end of the decade. 

A more recent work, the Hand Book of the Minnesota State Prison (1910), is a very rare edition of a handbook published to describe and tout Minnesota's new prison complex in Stillwater, then still under construction. The pamphlet outlines the prison's principles and objectives, organization, features, and finances, and is based generally on a utilitarian approach to the rehabilitation of its inmates. Arguing for the necessity of the new prison, it proclaims that the prison will be one of the most modern in the country, if not the world. Adding to the interest of the manual, and certainly meant as an additional advertisement, are two fold-out illustrations of the floor plan of the prison and an artist's bird's eye view of the prison and its grounds.

Even more recently, in the late 1940s and early 50s, the trials of the "Trenton Six" raised key issues of due process, in a murder trial that captured national attention and helped to catalyze the civil rights movement. Six young African-American men were convicted in 1948 of the murder of an elderly shop-keeper in Trenton, New Jersey, and sentenced to death. The men came to trial based on coerced confessions resulting from days of interrogation without access to attorneys, and were arrested without warrants in a wide sweep of the city. After a publicity campaign, the convictions were reversed on appeal in the New Jersey Supreme Court, for failing to specify what degree of murder the defendants were guilty of. After a new 13-week trial, four of the six defendants were acquitted, while circumstantial evidence resulted in convictions for the remaining two, one of whom died soon after, while the other was paroled in 1954. From these significant trials, we acquired a pamphlet published by the NAACP that formed part of the publicity effort to bring the case to a national audience; and a typed, signed censure by the judge in the first trial, which faults several of the defendants' attorneys for violating the New Jersey Bar's code of ethics. The censure sheds light on contemporary issues: the attorneys were reprimanded for speaking publicly about their clients' innocence and campaigning for it locally and nationally during the trial. Among other things, the judge also suggested that the attorneys, from New York, were raising money through their representation for other causes. The documents vividly bring the circumstances and sensation of the case to life, and encourage discussions about defendants' rights and the role of the media in trials, issues that are of continuing importance.

- Ryan Greenwood, Curator of Rare Books and Special Collections
                   

           

The Celebrated Marquis: Cesare Beccaria at the Riesenfeld Center

Professor John Bessler, a visiting researcher at the Human Rights Center, recently gave a great book talk at the Law School on his new monograph, The Celebrated Marquis: An Italian Noble and the Making of the Modern World (2018). During the talk, Bessler discussed the subject of his new intellectual biography, Cesare Beccaria (1738-1794), and his Essay on Crimes and Punishments, a pioneering Enlightenment text that rejected judicial torture, the death penalty, and religious intolerance. First published in 1764, Beccaria's book sent shockwaves through Europe, pushing governments towards penal law reform and paving the way to modern criminology. An important point of the talk, and Bessler's book, was to highlight the myriad connections between Beccaria and the French philosophes who first championed his work, and jurists and politicians on both sides of the Atlantic. In fact, the book was received enthusiastically in the American colonies, where it was read by the likes of John Adams and Thomas Jefferson, and absorbed by other leading colonial figures.


Some wonderful evidence of this influence can be found in the Riesenfeld Center's collections, which include early copies of Beccaria's key work. In all, the collections hold seven interesting editions published before 1800. One of these, our earliest edition, was published in French in 1766, just two years after the original publication in Italian. The title page of the work omits the name of the author and publisher, but gives the place of publication as 'a Philadelphie.' In fact, the work is a false imprint, in this case a work that disguised its real place of publication due to a climate of censorship. The early editions of Beccaria's work in Italy and France all conceal its author and other publication information, in an effort to avoid penalties under conservative monarchs and the Catholic Church, which made legal reform dangerous and (somewhat ironically) often criminal. Our French copy was presumably published in Paris, and it features a beautiful, mottled calf binding with decorated gilt compartments to the spine. In addition, attractive, marbled Turkish endpapers help to locate the publication in France, far from the more humble beginnings of printing in the American colonies.         

On the other hand, our first true American printing of Beccaria's Essay on Crimes and Punishments is one of a kind, produced in Philadelphia by the notable (and rather notorious) Scottish-born printer Robert Bell. This edition was produced in 1778 in Bell's shop in Third Street near St. Paul's Church, a short walk from Independence Hall, where the Continental Congress sat in session in the midst of the Revolutionary War. Bell had already printed works related to law, including the first American edition of Blackstone's Commentary on the Laws of England (1771-1772), and had printed the first edition of Thomas Paine's Common Sense (1776), which provided a spark for the rebellious patriots and is still the best-selling pamphlet in American history. In 1778, Beccaria's ideas on penal law reform were available in English from earlier European editions, but Bell must have believed that the time was ripe for an edition printed steps away from the colonies' most influential lawyers and lawmakers.

Among these were two brothers, Richard Henry Lee (1732-1794) and Francis Lightfoot Lee (1734-1797), both signers of the Declaration of Independence and members of a prominent Virginia family. They were active in the Virginia House of Burgesses, and Richard Henry Lee became a particular firebrand of revolution: at the Second Continental Congress, he introduced the motion for a declaration of independence. It is known that both brothers read widely, and our copy of Bell's 1778 edition of Beccaria's Essay appears to come from this notable family. The title page of our copy shows the name 'Frans. L Lee,' which likely refers either to Francis Lightfoot Lee, the signer of the Declaration, or a son of Richard Henry Lee, also named Francis Lightfoot Lee. That the work may have been owned by the latter is suggested by another name on the title page: 'James Kingsley,' who appears to have been a tutor employed by the family. Both Richard Henry Lee and another brother, Arthur Lee, quoted from Beccaria's work and were associated with figures like Jefferson, who introduced legislation in Virginia, based on Beccaria's views, to restrict the death penalty and reduce the severity of criminal punishments. Although his influence in the new republic eventually waned, Beccaria and his book had important purchase in its early days, where his ideas were taken up by reformers from Louisiana to Pennsylvania.

 - Ryan Greenwood, Curator of Rare Books and Special Collections     

Thurs. April 26: Book Talk by John Bessler

The Celebrated Marquis: An Italian Noble and the Making of the Modern World

When:  April 26, 2018 - 5:00-7:00 p.m., Room 50

​

A reception will follow in the Law School’s Lindquist and Vennum Conference Room.

John Bessler will give a book talk on his new book, The Celebrated Marquis: An Italian Noble and the Making of the Modern World (2018), a fascinating account of Cesare Beccaria and his landmark book that castigated judicial torture, the death penalty, and religious intolerance. Beccaria's Dei delitti e delle pene (1764) was translated quickly into French and English (as An Essay on Crimes and Punishments) and despite its controversial and prohibited ideas became a runaway bestseller. Beccaria and his book provided the spur to 18th-century penal law reform and modern criminology, and deeply influenced the likes of Jeremy Bentham, John Adams, and Thomas Jefferson. 

A leading scholar on Beccaria, Bessler will discuss the importance of Beccaria's views in a trans-Atlantic context in which ideas flowed freely through France and Italy, England and America, and back again. Beccaria's ringing calls against torture and the death penalty, and his utilitarian views on punishment, resonated throughout Europe and proceeded to shape constitutions and laws around the globe. 

In addition, the talk will highlight several copies of Beccaria's key work in the Law Library and Riesenfeld Center's collections, as well as works that influenced and were influenced by the Essay on Crimes and Punishments.

John Bessler is a Professor at the University of Baltimore School of Law and a Visiting Researcher at the Law School's Human Rights Center.