Cleveland Irish: Shillelagh Law, Part 2



Cleveland Irish: Shillelagh Law, Part 2
By Francis McGarry

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The history of the modern police force does not begin in the Americas, nor in Britain.   It begins in Ireland in 1814, with the passing of the Irish Peace Preservation Force Act.  Robert Peel was its catalyst and was the Irish Secretary at the time.  He arrived in Ireland in 1812 when the local police were grossly ineffective, which left the policing to the military. 

British participation in the Napoleonic Wars depleted many of those fellows and many soldier-police stations were abandoned.  Regardless of numbers, the military made very inefficient police and were extremely brutal when clashing with Irish citizens, only adding to the unrest. 

Peel was the son of a textile manufacturer and a conservative politician from Lancashire.  As Secretary of Ireland, he examined the immediate causes of Irish lawlessness, but also the root causes of actions against the state.  The result was to prevent crime and not to just suppress it. 

Peel believed effective policing and the administration of law must be based on knowledge of local areas and local problems.  The magistrates must be firm but just in the administration of the law.
His approach might have had a chance, but the Insurrection Act of 1807 was re-enacted in July of 1814.  That translated to curfews from sunset to sunrise and the suspension of trial by jury. 

Cleveland Curfew
In Cleveland in 1837 there was no curfew, but the city had a newspaper.  In October of 1837 a letter to the editor noted “the necessity of an amendment of the city charter for the establishment of a city court for the trial of petty offences.” 

The court of commons pleas was set to hear 2,000 cases during its next two-week session.  “If this condition is not remedied, the rights of individuals must suffer” argues “X”, the author.  “A man may commit petty larceny and be committed for the offence; he must remain in jail until March for his trial then be punished by a fine, and perhaps thirty days imprisonment.  He is punished several months before he is pronounced guilty.”

Cleveland was not the only municipality to call for legal reform.  The courts and tax collectors were among the few public institutions in place in early 19th century America and the immigrants were coming to its shores.  The Irish were coming and that was cause for professional police to organize on behalf of urban elites to supervise the “lower orders.” 

This immigrant crime wave included a vast majority of moral “crimes” and public disorder, like the drink and profanity.  Over 60% of caseloads in major metropolitan areas included charges of petty larceny, common drunkard, drunkenness and “nightwalking.”  Cleveland would also jam you up for lascivious behavior, gambler, watch stuffer, and being “a person who practices any trick, game or device with intent to swindle.”

Problem was that the Irish showed up when voting rights were expanding to include some poor folks, and industrial capitalism was taking form.  The American ruling class explored new ways to regulate the contemporary class struggle and strengthen formal social control bureaucracies.

Max Weber notes that legal change, the development of new legal norms and practices, has always been a product of innovation, or the constructions of new lines of action, in settings where an existing repertoire does not suffice.  The power of habit, then norms, and finally formalized in law. 

Horace Mann wanted a public school systems to advance the intelligence and habits of mind to produce informed citizens and industrious workers to assure the future of the republic.  They also mandated the use of the King james Bible in public schools.

That form of socialization would not address the immediate issue of immigrants and “crime.”  The law had to remain universal and maintain formal equality.  Historically episodic leniency was used on occasion to respond to a perceived crisis of social order. 

The Plea Bargain
The English would pardon or commute a sentence on occasion.  It took America and quite a few Irish to introduce the plea bargain to global legal history. 

Prior to 1830, guilty pleas were not common in American or British history.  In fact, prior to 1830, 10% to 15% or all convictions in lower courts in the US were a result of a guilty plea.  The plea bargain was first utilized in Boston. 

In the 1830s, 15% of cases were plea bargained.  In the 1840s, almost 30%; in the 1850s, over 50%; in the 1860s, nearly 60%; and in the 1880s, 88% of all cases in lower courts were plea bargained. 

In cities like Boston and New York in the 19th century, this meant that there were Irish on both sides of the deal.  The Irish in New York City in 1860 accounted for half the total number of arrests and half the total members of the police force.  Cities like Cleveland and Cincinnati witnessed proportionally similar numbers. 

Plea bargaining included an admission of guilt, character witnesses or employers, at times surety, and the voice of the accused in the legal process.  Antonio Gramsci would call it “cultivating and sustaining the consent of the governed.” 

It also would possibly lower the amount of the fine and the term of imprisonment.  However, it would almost assuredly waive the court costs, which could exceed the fine. 

Courts tended to exact a premium of social crimes like the drink.  Females statistically could expect harsher sentences, especially if it was a single female being adjudicated.  The courts made a distinction of two types of women: “those living under household governance and those making it on their own (spinster).” 

Larceny and assault and battery were more likely to be reduced in a plea bargain.  Plea bargaining was less common in economically good times, as a result of a lower crime rate. 

In 1837, the Cleveland court system did not fairly and justly administer the law to all citizens.  Legal innovation and societal need created new courts and new processes to address those issues. 

By the end of the 19th century, Clevelanders arrested for any city ordinance, like “using profane language in the street” between the hours of 9am and noon and between the hours of 2 to 6pm could go directly before the police judge and plead guilty (and plea bargain).  The judge would pass sentence and it “shall be forthwith carried into execution.”  A cup o’coffee, some obscene language in a public place, police court to pay a fine and then Muldoon’s for lunch on the honor system, not a bad morning. 

*Francis McGarry holds undergraduate degrees from Indiana University in Anthropology, Education and History and a Masters in Social Science from the University of Chicago.  He is an assistant principal and history teacher.  Francis is a past president of the Irish American Club East Side and is the founder and past president of the Bluestone Division of the Ancient Order of Hibernians.   

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