Prison and Plantation

Crime, Justice, and Authority in Massachusetts and South Carolina, 1767-1878

Michael S. Hindus

• Publisher: The University of North Carolina Press
• Year: 2017
• Print ISBN: 9780807836088, 9780807814178
• eBook ISBN: 9780807836095
• Topic: History
• Subtopic: Early American History
• Index: History

This broad, comparative study examines the social, economic, and legal contexts of crime and authority in two vastly different states over a one hundred year period. Massachusetts — an urban, industrial, and heterogeneous northern state — chose the penitentiary in its attempt to minimize the role of informal and extralegal authority while South Carolina — a rural southern slave state — systematically reduced its formal legal institutions, frequently relying on vigilantism.

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Part I. The Contours of Authority

Crime and criminal justice are important components of a society’s system of authority. The criminal sanction is the state’s way of dealing with undesirable behavior; family, church, and neighborhoods have other ways that are often more effective. The formal quality of the state’s response distinguishes crime from other undesirable behavior. But criminal justice is only part of the larger legal order; indeed, to many it is a relatively unimportant part. To appreciate the institutional context of crime and justice, we must look at the legal system as a whole. After all, the same court system heard both civil and criminal cases, and the same judges presided. Issues in court organization and the configuration of authority may have been prompted primarily by the demands of the law in the civil, private realm, rather than the public, criminal arena, but the end result affected criminal proceedings as well.

By looking at the formal structures of authority, we can begin to see what role the rule of law played in ordering the affairs of society in the two states studied here. In South Carolina, that role was minimal; the law did not reach many areas of life, institutions such as courts were kept weak, and local instruments of law enforcement ranged from ineffective to incompetent. The meaning of the South Carolina experience is not that the state was relegated to medieval barbarity (as some proponents of change were wont to describe it). Rather, if we must use a crude historical metaphor, the more appropriate one would be feudal order, the maintenance of authority and control by the dominant elite over the subordinate population by means of custom and deference. South Carolina, with its extraordinary capital investment in commercial agriculture, was far from a feudal society, but it was a society in which the classical notions of the rule of law had very little appeal. To the extent that it was a well-ordered society, South Carolina was not predominantly ordered by formal, legal structures of authority. South Carolina had only some of the form and very little of the substance of the democratic rule of law.

In Massachusetts, by contrast, formal authority played a large role. Judicial authority was centralized, and attempts were made to keep the courts efficient. Disorder was controlled by the first professional police force in the United States. And law figured prominently in the private affairs of the state’s citizens, regulating personal conduct in ways that South Carolina law failed to touch.

In both states, the legal systems were imperfect. As independent bases of power, courts were particularly troublesome for the governing elite. South Carolina’s solution was to reduce the role of courts to prevent their becoming a power base that could threaten planter hegemony. Although life tenure for judges appeared to guarantee judicial independence in Massachusetts, court reorganization could serve as a pretext for installing judges of the proper political stripe, thus accomplishing in the name of reform what in other branches of government was achieved by the traditional patronage route (and, it might be noted, rout). In Massachusetts we see form: strong courts and agencies of law enforcement, statutory intervention to order private affairs. But substance is another matter. Police frequently placed class control ahead of crime control, legislation seemed to proscribe the habits of the politically powerless lower classes, and clogged dockets and protracted delays reduced the efficacy of this neatly designed authority structure.

In this first section I will probe the systems of formal authority in each state and will try to assess the relative strengths of the formal and informal systems of authority. The first chapter looks at courts and law enforcement. The next chapter defines the penetration of law in daily life through a comparison of the reach of statutory criminal law and the role of extralegal and informal means of law enforcement and dispute settlement.

Chapter 1. The Structures of Authority

In the decades following the American Revolution, many states reorganized their judicial systems as part of the general overhaul of the political system demanded both by the rebels and by the fact of independence. Finding the proper relationship between courts and citizens was crucial. Experience had shown that the judiciary was an extremely dangerous and a potentially repressive institution. More important, the judiciary was the most significant contact between citizen and government in the early republic; frequently it was the only contact. Not surprisingly, therefore, the structure of the judiciary was a crucial issue in both Massachusetts and South Carolina.

Since courts mediated between conflicting parties and interests in society, court organization naturally was a cause for concern. Where courts were located, how often they sat, and for how long determined popular accessibility to formal justice and authority. The quality of talent on the bench influenced public respect for the judiciary and therefore its willingness to use courts to settle disputes. Finally, the degree to which disputes were resolved by the courts ultimately determined the utility of the court system. Appeals, errors, and delays could undermine its value.

The Structure of the Courts

Over the course of the period from the Revolution to the Civil War, South Carolina and Massachusetts both experimented with different forms of court organization. South Carolina was mired in tradition and easily influenced by parochial political considerations, whereas Massachusetts appeared to move toward efficiency and rationality, consistent with contemporary trends in law. Nevertheless, despite the obvious structural differences, the results in each state were similar. By the eve of the Civil War, neither state’s court system had solved completely the problems of political interference, accessibility, and delay.

Courts provided the setting for severe and frequently violent struggles over the nature of authority in the late eighteenth century.¹ Two of the most significant backcountry rebellions involving courts occurred in Massachusetts and South Carolina. Protesting the lack of formal authority in the crime-ridden upcountry of South Carolina, leading citizens formed the Regulators and in 1767 used vigilante action to fill the vacuum of authority. Less than two decades later, in western Massachusetts, followers of Daniel Shays took to arms to protest the oppressiveness of local courts directed from Boston.

These two armed rebellions can be compared for what they reveal about the role of the judiciary in society. In each case the protesters were settlers to somewhat newly organized areas in a state and a colony with centralized political authority. In the Regulator era, South Carolina had only one court, sitting in Charleston. The refusal to extend courts into the backcountry was symptomatic of the attempt of the lowcountry planters to prevent any challenge to their autonomy. Lowcountry manor lords feared that additional courts would be the opening wedge to the political organization of the backcountry that in turn would lead to demands for the sharing of political power. This is exactly what happened, but by the time it did, lowcountry planters realized that hegemony need not depend on political power alone. The Regulator affair was only the beginning of a century-long and ultimately unsuccessful attempt in South Carolina to find the appropriate relationship between courts and the citizenry.

Shays’s Rebellion sought to curb rather than extend the authority of the courts. This revolt, like the Regulator episode, marked a critical juncture in the history of authority in the state. Like the Regulators, who protested the concentration of authority in Charleston, the Shaysites protested Boston’s domination of the state’s judicial affairs. The western Massachusetts rebels believed that the courts were responsive only to the commercial interests of the metropolis. In the interest of establishing a credible currency and credit system, Massachusetts courts offered no relief to the hordes of debtors victimized by economic circumstances beyond their control.

The agrarian rebellions in both South Carolina and Massachusetts were symptomatic of the problems of establishing authority on the frontier. But the aftermath in South Carolina was uncertainty, as the state groped with a number of different schemes in an attempt to create a court system that would be neither too distant to be of any use nor too near to be oppressive, neither too subservient to be credible nor too independent to be troublesome. In Massachusetts, by contrast, the Shaysites’ banner was never again raised. The state would constantly grope for the proper balance of jurisdictions, but the desirability of a strong, centrally directed judiciary was no longer doubted.

The proper distance between courts and citizens was an issue that continued to plague South Carolina long after the Regulator affair. Prerevolutionary South Carolina suffered from too few courts; postrevolutionary South Carolina seemed to have too many. Two events in the last two decades of the eighteenth century typified the state’s inability to find a suitable posture between courts and the citizenry. The first was the Camden court protest of 1785, an uncanny miniaturization of Shays’s Rebellion. The second was the birth and premature death of the county court system.

The new court system that followed the Regulator protest was hardly established before the Revolution disrupted all judicial functions. After the Revolution, attempts to establish a court system were influenced by current conditions. Just like their counterparts in western Massachusetts, rural South Carolinians, in the words of Judge Joseph Brevard, “were deeply involved in debt.”²

Beginning in 1783, the aristocratic, planter-dominated legislature passed several measures that were not merely unsympathetic, but demonstrably hostile to the debtors’ plight. The first was a depreciation table that stipulated that debts had to be paid in currency equivalent to the value of the obligation when originally contracted, depriving the debtor of the classic benefit of inflation. In the following year the jurisdiction of the Charleston Court of Wardens was expanded to include nonpayment of debts. Finally, in March 1785, quarterly county courts were established in this state, where any courts outside of Charleston were a recent and (because they were closed during the Revolution) inconclusive experiment.

These courts were composed of each county’s justices of the peace meeting en banc. South Carolina also had biannual district circuit courts, equivalent to nisi prius terms, conducted by the individual appellate judges. District courts were further divided into General Sessions (criminal), and Common Pleas (civil, with separate sessions for law and equity). The county courts had long been the pet project of Judge Henry Pendleton, who modeled them after those of his native Virginia, and the timing may have been coincidental. South Carolina had been the only colony without county courts.³ But debtors could hardly have taken solace in the title of the bill that established the courts “for the more expeditious determination of suits and controversies and the recovery of debts.”⁴ Debtors in 1785 faced new and repressive measures of repayment and a legislature more interested in easing the conditions of foreclosure than in alleviating their plight.

This was the setting of the Camden court protest of 1785, a significant event not only for its similarity to the Shaysite struggle, but also for shedding light on the subsequent fate of the county courts. News of the new courts may not have even reached the upcountry town of Camden by late April, but the government’s lack of sympathy for the debtor was well known. On 23 April 1785, Judge John Faucheraud Grimké rode into town expecting to convene the spring term of the district circuit court. He was confronted by a group of citizens who presented him with a memorial “in consequence of the very great grievance that the citizens of this district labor under on account of the many law suits which are brought against them and the very great scarcity of money which renders them unable to discharge their debts with cash.” The protesters demanded that the forthcoming court session not handle any debt cases, that no executions already ordered be completed, and that property be accepted as full payment provided that three-fourths of its assessed value satisfy the debt. Recognizing that “in all probability the law will for some time be dormant,” the protesters promised to “suppress every species of villainy that shall be committed during the suspension” and agreed to support the court in criminal matters. The aristocratic judge would have no part of this protest, complaining that the whole affair “had wounded the credit of the District.” Although Grimké held his ground, he was unable to compel the appearance of any jurors and was forced to adjourn the court.⁵

The Camden debtors accomplished their two main goals. The court session was blocked, and six months later the legislature passed the Pine Barrens Act. This measure enacted one of the specific demands of the protesters—that land could be tendered as payment for debts.⁶ By their support of the court in criminal matters and their promise to treat officers of the court “with the utmost civility”⁷ the dissidents showed their basic acceptance of authority, but resistance to its oppressive encroachment.

The Camden affair illustrates the hostility directed at the judiciary during these years. The conditions under which the county courts were established help to explain why this syste...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Tables
• Figures
• Acknowledgments
• Abbreviations
• Introduction
• Part I The Contours of Authority
• Part II The Contours of Crime and Justice
• Part III Two Peculiar Institutions
• Part IV The Making of the Criminal Class: Reform and Retreat
• Conclusion
• Bibliography
• Index