How law shapes policing: the regulation of alcohol in the U.S., 1750–1860

ABSTRACT

Scholars have been skeptical about the capacity of law to shape what police do, but that skepticism results from a myopic view of the relationship between legal systems and policing practices. This paper develops a more holistic view of that relationship by exploring the legal standards, social understandings, and policing practices that played a role in the regulation of alcohol and drunkenness from roughly 1750–1860 in the United States. From the late colonial period through the 1830s, alcohol regulation did not aim to reduce drinking but to prevent public disorder – a task that was well-suited to the character of the early American legal system. From the 1830s through 1860, however, the temperance movement successfully pressed legislators to enact more explicitly moralistic liquor laws, demanding that police ferret out private alcohol sales rather than merely regulating their impact on public order. That new mandate quickly unravelled, for it proved incompatible with a wide range of legal restraints, including traditional protections against searches of private homes, skepticism about the testimony by criminal accomplices, and liability rules related to official enforcement actions. No single restriction on policing tactics undermined antebellum prohibition, but the basic orientation of criminal procedure and the social understandings and practices through which it operated informed a wide range of specific restrictions on morals policing that collectively made prohibition unworkable. To understand that story, we need to take a broader view of the relationship between law and policing than most policing research has taken.

KEYWORDS:

• Alcohol
• police
• law
• history

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1 Enslaved people, Indians, and a few other marginalised groups were notable exceptions, for their general lack of legal rights extended to this area as well.

2 The law sometimes entitled community informers to a share of the offender’s fine, though such incentives were not universal, and some jurisdictions positively discouraged informing by making an informer liable for court costs when a defendant was acquitted. See, e.g., The Statutes at Large of South Carolina (1838), p. 576; The Statute Laws of the State of Tennessee of a Public and General Nature, Volume 1 (1831), p. 236; Flaherty (1971, p. 147).

3 See e.g. The Public Statute Laws of the State of Connecticut (1808), p. 642, 646; The Statutes at Large of South Carolina (1838), p. 162; The Statute Laws of the State of Tennessee of a Public and General Nature, Volume 1 (1831), p. 238; Philadelphia Police Manual (1855, §89); Costello (1884, p. 62); Davies (1999, p. 621–2).

4 E.g. The Public Statute Laws of Connecticut (1808), p. 641; The Statute Laws of the State of Tennessee of a Public and General Nature, Volume 1 (1831), p. 237.

5 Roger Lane suggests that through the first third of the 19th century, ‘it had seemed reasonable that since licensed places had always been open to inspection, that illegal ones should be at least equally liable’ (1967, pp. 105–6). He does not explain the basis on which he makes this claim about what ‘seemed reasonable’, and the claim seems inconsistent with the general common law aversion to warrantless searches.

6 As in the case of licensed taverns, law enforcement officials seemed to pay more attention to unlicensed liquor when they were also involved in more serious forms of illegality (Salinger 2004, p. 147, Lender and Martin 1987, p. 12).

7 Prohibition laws were enacted in almost all of the northern states but none of the southern states, though the South did tighten restrictions on alcohol sales (Tyrrell 1982, Pearson and Hendricks 1967, p. 130). That pattern may reflect a general aversion to morals legislation in a region where extralegal forms of social control remained important (Hindus 1980, ch. 2).

8 The focus on sales reflected the 19th century understanding that market exchange was subject to government regulation in a way that private behaviour and consumption were not. As Christopher Tiedeman put it later in the century: ‘Vice as vice can never be the subject of criminal law, yet a trade which has for its object or necessary consequence the provision of means for the gratification of a vice may be prohibited’ (1886, p. 302).