Week 2 – The Police Power
Notes on Readings
Police Power, pp. 120-121
Secondary Source
The text discusses the difficulty in defining "police power," noting that its characteristic is its very undefinability.
It states that the concept of police power was accompanied by the remark that it cannot be defined.
Even Jeremy Bentham (1748-1832) struggled with the concept of police power.
Penology – the study of the punishment of crime
Concept of panopticon – institutional building with an inbuilt system of control (no walls, but a central observation tower that allows for constant surveillance of inmates, promoting self-regulation and compliance through the threat of being watched)
Police have almost limitless discretion
Early police offenses were used to punish actions that had not previously been defined as illegal.
The police were given flexibility and vagueness in their duties to maintain public welfare.
By the early 1900s, the definition of police power remained unchanged, despite discussions in court and treatises.
Freund noted in 1904 that police power, while indispensable in American constitutional law, has remained without an authoritative definition.
Instead, it is seen as identifying with the whole of internal government and sovereignty, an undefined mass of legislation.
American Jurisprudence says police power is "by its nature incapable of any satisfactory or exact definition or limitation".
Commentators have shifted to defining police power by what it is not rather than what it is, particularly in relation to the power of eminent domain and the power to regulate commerce.
The text argues that police power "knows no law," meaning that it is used to classify state actions as constitutional.
The classification of a state action as an exercise of police power removes that action from the realm of constitutional law and the federal considerations of state action.
Alger v. Shaw is cited as an early illustration of defining police power as what it is not, specifically not the power of eminent domain, or using “senseless material”.
The text explains the other use of police power, that which is not federal commerce power.
It is noted that the distinction between policing and punishing or between police measures and criminal law, is difficult to maintain, since these lines tend to track the boundaries between police and insurance law.
A key distinction that the text draws is that between prevention and remedy with respect to criminal law.
The text concludes by pointing out that criminal law is said to derive from the police power of the state.
George Washington to Major General Sullivan
Primary Source, “police come from military”
The letter is from George Washington to Major General John Sullivan, dated May 31, 1779, providing instructions for a military expedition against the Six Nations of Indians and their allies.
The primary objective of the expedition is the "total destruction and devastation" of the Indian settlements, the capture of prisoners, and the ruining of their crops.
The troops under Sullivan's command will consist of several brigades, including those of Clinton, Maxwell, Poor, and Hand, as well as independent companies from Pennsylvania.
Clinton's brigade is to rendezvous at Conojoharie and can either join the main force at the Susquehanna or proceed up the Mohawk River, as Sullivan deems best.
The main body is to assemble at Wyoming and then proceed to Tioga before moving into the heart of Indian territory.
Intermediate posts are to be established to secure communication, with a post at Tioga being particularly necessary.
A central post within the Indian territory should be occupied, and from there, parties should be sent to destroy all surrounding settlements.
Washington advises Sullivan to make attacks with impetuosity, shouting, and noise, using a loose and dispersed formation with the war hoop and fixed bayonet, to terrify the Indians.
Intelligence gathering on the enemy's strength and movements is crucial, as is vigilance against surprise attacks.
Special care is needed for arms and ammunition, especially after rain or crossing water.
After the settlements are destroyed, if the Indians show a disposition for peace, it should be encouraged, but only if they offer proof of sincerity by surrendering the instigators of past hostilities, such as Butler and Brandt.
A potential goal is the capture of Niagara and the shipping on the lakes, which can be used as a condition of friendship and may lead to supplying the Indians.
No peace overtures should be considered until the total destruction of the settlements is accomplished. The fear of the consequences is what will ensure future security.
Any peace agreement must be explicit, with substantial pledges and hostages.
Upon completion of the expedition, Sullivan is to rejoin the main army, with the route dependent on circumstances.
The troops should move as lightly as possible to conserve provisions.
Washington expresses confidence in Sullivan's abilities and anticipates a successful outcome of the expedition.
The instructions in this letter formalized plans for the campaign against the Six Nations which had been under debate.
NYPD Badge
Primary Source, “professionalism of police”
Firsting and Lasting book
Native iconography
Symbolism of police are reason for coexisting with Native Americans
Slave Patrol Contract
Primary Source, “police come from slave patrol”
The document is an appointment for a slave patrol in Salisbury, North Carolina, for January 1856.
It lists the members of the patrol, including Horace L. Robards, William Rouzee, Julius D. Ramsey, B.B. Roberts, and Richard B. Pendleton, who are designated as Class No. 1 for January 1856.
Horace L. Robards is appointed Captain of the 1st Class of Patrol, and in his absence, William Rouzee is to act as captain.
The patrol's duties include meeting at a time and place of their choosing to perform patrol duty at least two nights per week.
The patrol is also tasked with dispersing any gatherings of enslaved people or boys violating the town's ordinances on the Sabbath day.
Patrol members are authorized to inflict up to fifteen lashes on any enslaved person found off their owner's property without written permission; however, this can only occur in the presence of the Captain.
The patrol is to arrest any free colored men found associating with enslaved people at night or on the Sabbath in locations other than the free man's premises.
The standard patrolling hours are from 9 to 12 o'clock at night, but these can be changed by the Intendant of Police.
The Captain is required to report to the Intendant of Police within five days after the end of the month regarding their service, including any patrol member's absences.
A neglect of duty by the Captain can result in a fine of ten dollars.
The document also includes a Captain’s Report, dated February 4th, 1856, submitted by H.L. Robards, who notes that the weather was very cold, impacting the length of time they were on patrol.
The report lists absences: B.B. Roberts, R.B. Pendleton, and H.L. Robards, each absent 2 nights, with reasons given for their absences.
The underlying theme of the document is the control and surveillance of enslaved and free Black people through the use of a local police force, a slave patrol.
The patrol's actions were legitimized by the local government, and they were given specific parameters for the management of enslaved people. This is evidence of the broad authority and flexibility granted to local policing by the government, to maintain public order, reminiscent of the undefined police power discussed in the "Police Power" document.
Difference is that now there’s rules/regulations/procedures/accountability
The patrol system also relied on the use of physical punishment as a means of control and enforcement.