Police, Courts, and Prisons
Part 7 – The Wild, Wild, West
I recommend reading Parts 1 through 6 before reading this essay
It was the early 70’s and I was halfway through high school. There was a movie every Tuesday night at 11:35 on CBC television. It was always a western and I was a devoted viewer. Everyone else was in bed, except my mother. She always watched with me. That’s what made it a special memory. Richard Widmark played the protagonist more often than any other actor. I liked Widmark, so that was okay. I sort of assumed these westerns to be an accurate portrayal of what life was really like on the western frontier. In fact, many attribute America’s crime rate today to its frontier heritage.
I have since learned that most aspects of frontier life bore little resemblance to the images depicted in television shows and Hollywood movies. The only fact the film and television industry got right was that the homicide rate in many towns was significantly higher than in modern-day America. However, the events which produced much of this violence have been frequently misrepresented by the screenwriters. We can learn a great deal from the actual circumstances surrounding many of these killings.
Here is a quick rundown of some of the other false impressions which still persist about life on the frontier. Men did not wear their guns in holsters. They carried them in their coat pocket or stuffed in their pants. Townspeople were not meek – because life on the frontier was rough, it did not attract people who were easily cowed. Most people were armed, knew how to use their guns, and did not hesitate to do so in order to protect life and property.
Bank robberies were rare events because bank employees were armed and robbers understood that people were prepared to defend themselves. In contrast, stagecoach robberies did happen on occasion, but robbers took only the strongbox. They did not rob or harm the passengers, who they treated with respect. Any abuse of passengers would have invited a quick and severe response from the community.
Women, children, the old, and the weak were hardly ever the targets of any kind of abuse, even by the worst characters around. This is especially notable because men outnumbered women ten to one in some towns.
The majority of vigilante groups were not comprised of crazed hysterical people as we have been led to believe. These groups included many of the most respected townspeople and they acted with precision in a deliberate, calm, and determined fashion. They took action out of concern that the innocent were being harmed with impunity, and they took action only when conventional law enforcement failed in the execution of its duties in this regard.
In some places, sheriffs and deputies did not play a significant role in maintaining law and order. Citizens generally governed themselves. The rate of general lawlessness (exclusive of homicide which we shall deal with below), such as theft, burglary, assault, and rape, was far below that of modern-day America.
Roger McGrath did not cherry pick his targets when he wrote Gunfighters, Highwaymen & Vigilantes. He focused his research on the two mining towns of Aurora, Nevada, and Bodie, California, both of which were at or near the top of the list of towns reputed to be fraught with violence and lawlessness. Here are some of McGrath’s observations:
In Aurora and Bodie . . . Chinese and Mexicans were not the targets of racially inspired violence. Women were not the victims of rape nor, for the most part, any kind of assault. And larcenous crime was of no great importance. In most ways the towns were not violent or lawless places. But when it came to men fighting men, Aurora and Bodie were unmistakably violent. Fistfights were nightly occurrences and gunfights were not infrequent. Some of these fights resulted from disputes over property and women; a few, from political differences; a handful, from domestic quarrels or arguments between neighbors; but most, from disputes over who was the better man, affronts to personal honor, careless insults, and challenges to pecking order in the saloon. For the most part, the parties involved in these fights were willing participants.
Several factors would appear to be responsible for the high rates of homicide in Aurora and Bodie. First, the towns’ populations were composed mostly of young, healthy, adventurous, single males who adhered to a code of conduct that required a man to stand and fight, even if, or perhaps especially if, it could mean death. Courage was admired above all else. Ironically, these men had come to the West for a materialistic end – to strike it rich – and yet their value structure emphasized the non-materialistic values of honor, pride, and courage. Alcohol played a major role as well. These men imbibed prodigious quantities of whiskey. Sobriety was thought proper only for Sunday school teachers and women.
. . . Although a couple of homicides resulted from beatings and a few from stabbings, the great majority resulted from shootings. . . . The citizens of Aurora and Bodie were generally not troubled by the great numbers of killings, nor were they very upset because only one man was ever convicted by the courts of murder or manslaughter. They accepted the killings and the lack of convictions because those killed, with only a few exceptions, had been willing combatants, and many of them were roughs or badmen. The old, the weak, the female, the innocent, and those unwilling to fight were rarely the targets of attacks. But when they were attacked – and murdered – the reaction of the citizens was immediate and came in the form of vigilantism.
Contrary to the popular image of vigilantes as an angry, unruly mob, the vigilantes in both Aurora and Bodie displayed military-like organization and discipline and went about their work in a quiet, orderly, and deliberate manner. The vigilance committees that were formed after the murder of William Johnson in Aurora and Thomas Treloar in Bodie – the Citizens’ Safety Committee and the Bodie 601 – had as members some of the towns’ leading citizens as well as the support of the local newspapers. In both towns the vigilantes waited until the coroner’s jury had rendered a verdict before they acted. At no time did any officer of the law attempt to interfere with the actions of the vigilantes. Moreover, the after-the-fact investigations of the vigilantes by the grand jury in Aurora and the coroner’s jury in Bodie resulted in nothing more than justifications of vigilantism. . . . In each case they were supported by a great majority of the townspeople . . .
The vigilance committees were organized, not because there were no established institutions of law enforcement and justice, but because those institutions had failed, in the eyes of the vigilantes, to provide justice. That was not greatly troubling when the homicide victim was a rough or a badman or a man who had chosen to fight, but it was unacceptable when the victim was an innocent party. . . .
Serious juvenile offenses, crimes against the elderly and weak, rape, robbery, burglary, and theft were either nonexistent or of little significance on the trans-Sierra frontier. . . .
Only one woman, a prostitute, was robbed in Bodie, and there were no reports of women having been robbed in Aurora. There were also no reported cases of rape in either Aurora or Bodie. This does not necessarily mean that rape did not occur, since rape is a crime that has traditionally been underreported. Nevertheless, there was not even one report of rape, and there is nothing to suggest that rape may have occurred. On the other hand, there is a considerable body of evidence that indicates that women, other than prostitutes, were only rarely the victims of crime and were generally treated with the utmost respect. There were two cases reported in which attempted rape was alleged. In neither of these cases, both involving prostitutes, did testimony of witnesses support the allegations.
Aurora’s and Bodie’s records of no rapes, and thus rape rates of zero were not matched by nineteenth-century Boston or Salem. . . . Nor are Aurora’s and Bodie’s rates matched by any U.S. city today . . .
Juvenile crime is not even mentioned in Aurora; in Bodie it was almost entirely of the youthful prank and malicious mischief variety.
. . . Bodie’s rates of robbery, burglary, and theft were dramatically lower than those of most U.S. cities in 1980 and were as low as or significantly lower than those for Boston and Salem from 1880 through 1882. . . . Aurora seems to have had rates lower than Bodie – the available evidence so indicates – but because of the incomplete nature of the sources such a conclusion must remain speculative.
Institutions of law enforcement and justice certainly were not responsible for the low rates of robbery, burglary, and theft. Rarely were any of the perpetrators of these types of crime arrested, and even less often were they convicted. Many law officers had less than zealous attitudes about their work, and some operated on both sides of the law . . . The citizens themselves, armed with various types of firearms and willing to kill to protect their persons or property, were evidently the most important deterrent to larcenous crime. Full employment may also have served as something of a deterrent. Aurora, where few were without jobs, seems to have had slightly less larcenous crime than Bodie, where many suffered periodic unemployment. Perhaps the most intangible of the possible deterrents was the optimistic attitude of Aurorans and Bodieites. They had hope. And while men have hope, no matter what their circumstances are, they are less likely to commit crime. [1]
THEN versus NOW
As I read McGrath’s book, and in consideration of modern-day crime rates, I got the impression he was trying to show us not how far we have come, but how far we have sunk. Though homicide rates in the old west were much higher than today, the nature of these killings shows us that in comparison, we have much more to fear from the circumstances surrounding modern-day killings. Today, the innocent are often the victims.
Hypothetically, in the city in which you live, would you rather have one thousands killings each year, all of whom were willing combatants – or ten killings each year, all of whom were innocent victims, and you know the next one could be you or someone you love. We know how the citizens of Aurora and Bodie would answer this question. When someone dies as a direct result of their own foolish, aggressive behaviour, so be it. The victim could have easily avoided the situation. If a friend or relative died in this way, I would be grief stricken, but that doesn’t change the circumstances. Every one of those one thousand killings can be avoided by the victims themselves, thus I would have no concern for them. It is the ten innocent victims which would concern me, because their deaths are not the result of their own behaviour, but that of the killers.
In a civilized society we want protection. More to the point, we want protection for innocent people. This is the real crux of the matter. Today’s system of authoritarian law all too often fails to protect the innocent. As William Gairdner informs us, “During a 33-year period from 1975 to 2008, some 508 criminals who, after extensive psychological testing and interviewing were judged no danger to public safety by the National Parole Board, were released from prison and in that period killed 557 perfectly innocent Canadians.”[2] How would Aurorans and Bodieites respond to this situation? Would they form vigilance committees to lynch the killers? Maybe, but I think they would have done that before the murderers were sent to prison the first time, thus saving 557 innocent lives. Which is the more civilized society, the one which sacrifices innocent lives, or the one which insists on full accountability? As an aside, democracy supposedly operates under the principal of majority rule. So why is that a majority of Canadians favour capital punishment, yet the State ignores their views?
It appears the so-called Wild, Wild, West was in fact a rather peaceful, law abiding region. Homicides were largely avoidable by the victims, and all other crime rates were far below what we experience today. This happened in spite of (maybe because of) weak government law enforcement institutions.
Low crime rates on the frontier were at least partly due to the fact that everyone was armed. Virtually every man, and many women, carried a gun. If it were true that guns kill people, the homicide record of these two towns would reveal a lot of innocent victims, but the record shows no such data. Guns do not kill people any more than pencils misspell words. People kill people. When everyone owns a gun, we get fewer innocent victims; not because this turns bad people into good people, but because good people can defend themselves against the bad ones, thus forcing the bad ones to alter their behaviour.
VIGILANTES
We know from our review of customary law (see Parts 2, 3, 4, and 6) that people are capable of creating and enforcing laws without resorting to a coercive, monopolistic institution, which would in fact be a contradiction in terms.
Customary law succeeded because good people were incentivized to participate in voluntary institutions of law enforcement. Protection of life and property was the primary concern, and cooperative efforts were judged to be far more conducive to the provision of security than the efforts of isolated individuals. It follows then, that the efficiency of such arrangements hinges on having a stake in the outcome, or ‘skin in the game.’ This was the foundation of customary law, as we saw in previous essays. Similar incentives were clearly evident in the formation of vigilante committees on the western frontier. As Bruce Benson wrote:
Generally vigilante movements involved efforts to enforce law and re-establish order by law-abiding citizens who intended to live and interact in the community for many more years. . . . Law still prevails as private law enforcement arrangements arise to supplant inept, inefficient, or corrupt public institutions.[3]
This is not to say members of vigilance committees never ‘crossed the line’, or to deny the existence of a few unruly mobs. After all, whether law enforcement is provided publicly or privately, it is always provided by humans and humans are fallible. With that said, historical evidence shows the performance of the vast majority of vigilance committees to be far superior to that of their ‘public counterparts.’ This explains why they had the support of many citizens and newspapers. In San Francisco in 1851, the poor performance of public law enforcement prompted a reaction:
Even those criminals who were caught frequently escaped or were released before a trial could be arranged. The city’s press was urging drastic action by early 1849 . . .
Some three thousand citizens gathered in early June during the trial of a suspected arsonist, and over the next few days separate small groups of businessmen spontaneously began meeting and discussing the possibility of forming a “committee of vigilance.” These groups did not merge for several days, however. Finally, a “selected group of responsible citizens” was called together and a committee was formed, on June 10, 1851. The June 13 San Francisco Alta printed a statement from the committee:
Whereas, it has become apparent to the citizens of San Francisco that there is no security to life and property, either under the regulations of society as it at present exists, or under the laws as now administered, therefore, the citizens whose names are hereunto attached, do unite themselves into an association, for the maintenance of the peace and good order of society and the preservation of the lives and property of the citizens of San Francisco, and do bind themselves each unto the others, to do and perform every lawful act for the maintenance of law and order, and to sustain the laws when faithfully and properly administered. But we are determined that no thief, burglar, incendiary or assassin shall escape punishment either by the quibbles of the law, the insecurity of prisons, or laxity of those who PRETEND to administer justice.
This statement was followed by the committee’s regulations and a list of its members.
Crime declined so rapidly that for a short period, San Francisco was a city of considerable order and safety. The committee announced that it was suspending action as of September 16, 1851.[4]
In 1856 the San Francisco vigilance committee was revived and “remained active for another three months, as its membership grew to eight thousand (in those three months there were two murders in San Francisco as compared to the more than one hundred that took place during the previous six months).”[5]
While there remains considerable debate about the motives and tactics of the 1856 vigilantes, there appears to be less debate about their affect on the crime rate. A 96% reduction in murders over the span of three months is stunning. Estimates of 1856 committee membership range from 6,000 to 9,000. Considering San Francisco’s population at this time was 50,000, even the lower figure implies widespread public support of the committee and dissatisfaction with government authorities.
THE RENDEZVOUS
The history of the frontier does not mirror the more complete systems of customary law discussed in earlier essays, but there are many similarities. When top-down systems of authoritarian law failed, people did not hesitate to enforce the law i.e. bottom-up law enforcement. Likewise, recognition of an individual’s right to protection of life and property – by the individual – is consistent with customary law. Respect for life and property lies at the very heart of customary law – we have seen the essence of this in Aurora, Bodie, and San Francisco, and we can also see it at the rendezvous. The rendezvous was an efficient entrepreneurial idea to streamline the process of providing supplies required by trappers.
Supplying the trappers was a difficult process, relying upon either fixed locations in the trapping territory, which were expensive to maintain and defend, or annual trips to St. Louis where the trappers would sell furs and replenish supplies. But in 1825, a new system was devised, when William H. Ashley, as a leader of a major trapping expedition, announced that he would reunite with his several trapping parties somewhere downriver on the Green before July 10. Other trappers heard of the gathering as well and decided to show up. . . .
The rendezvous offered the opportunity for drinking, socializing, and contesting among the mountain men. More importantly, it was an efficient way to supply the trappers and to allow them to stay in the mountains year-round. The supply trains for the rendezvous usually comprised 50 to 70 men and more than 100 pack horses and mules.
Competition to supply the rendezvous sites could be fierce, with several fur companies attempting to arrive first in order to secure the best trading opportunities.
The rendezvous offered particularly ripe opportunities for theft, with all the supply goods and valuable furs concentrated in one location. But in general, these men respected property rights to the furs a trapper had harvested. Further, because all parties bore arms and knew how to use them, force was not used. Thus, even though inequalities of power undoubtedly prevailed at times, and the rendezvous occasioned heavy drinking and brawling, the records show very few instances of the use of arms or the taking of harvested furs. . . . Most of the violence that occurred stemmed from personal challenges and pride. In describing the period, Hiram Chittenden states: “It might be concluded . . . that, as the country was literally lawless, or without means of enforcing laws, lawlessness and disorder would be the rule. Such was not the case. . . . It will be found that life, liberty, and the right to property, were as much respected in the depths of the wilderness as within the best regulated of cities.”[6]
WAGON TRAINS
Modern-day authoritarian law is inescapable, surrounding us at all times in all places; suffocating, some would say. This was not the case in Aurora, Bodie, and San Francisco – in these places authoritarian law was much less pronounced, and often inept and/or corrupt. So, the people governed themselves, as they did at the rendezvous, where authoritarian law was nonexistent. Authoritarian law also did not exist as wagon trains crossed the plains. So what did these hardy travelers do? If you said “they made their own laws”, then to borrow a phrase from economist Walter Williams, “go to the head of the class.”
The 2,000-mile journey to the West Coast pushed people and their draft animals to their limits for four to six relentless months. Storms, wagon breakdowns, a spartan diet, and interpersonal conflicts all added to the costs of the trip. Possessions often had to be discarded along the trail to lighten the overloaded wagons. Large numbers of emigrants experienced times of near starvation. The fact that so many completed the overland migration attests to human will and cooperation.
. . . Once they rolled out of Independence, St. Joseph, or any other major departure point, they left behind the institutional infrastructure known as formal government.
. . . “Combining resources was the technique by which a large percentage of travelers crossing the plains obtained the means to make the trip.” . . . contractual arrangements established by people with a high stake in organizing a successful trip tended to promote order on the trail . . . Nearly every group adopted constitution-like agreements prior to embarking on the trail.
. . . in 1849, the Union Emigration Company began its constitution with this statement: “We the undersigned hereby agree to form ourselves into a company for our mutual benefit and protection in emigrating to California & we pledge ourselves to protect each other in person & property in all justifiable cases and also to conform to the constitution and bye laws.” The constitutions typically specified a set of officers and duties for those officers. They also established eligibility for voting and decision rules for amendments. Most also delineated punishments for violation of the rules and set up guidelines for the dissolution of the company.
. . . Cooperative behaviour characterized the trip West because individuals gained from it. . . . The constitutions and contracts for joint production made before emigrants left their jumping-off places along the Missouri River formed the basis for social coordination.
Of course, amidst this social order, conflicts inevitably flared over property rights and contractual arrangements for joint production. These occasions required procedures for dispute resolution. Unlike the violent, disorderly West of the popular imagination, the overland trail was generally a place where rights were respected and order was maintained. Miscreants went to trial, and judgement was swift. Barbara Hansen provides an example:
A brutal murder which aroused strong reactions from the emigrants occurred near the area of LaBonte. Lafayette Tate brutally stabbed a man by the name of Miller, the leader of a section of a train. It appears that Tate’s brother had defied Miller’s instructions to wait further travel until the captain of the train should come along. . . . The murderer started off at an attempt to escape, but he was shortly apprehended by a group of fifteen men. Tate maintained that there was no law upon the plains and his trial should be held in organized territory. His claims were ignored and a judge, defense, and prosecuting attorneys and a jury were quickly selected from trains in the neighborhood. Justice moved rapidly and that midnight, the murderer was hanged for his crime, much to the relief of many of the emigrants. It was a relief to be assured that justice existed on the trail and that travelers were protected from those elements of the migration whose behavior was dangerous to life.
The resolution of conflict and pursuit of justice were high priorities for the emigrants. Wagon trains often cooperated with each other to capture criminals, and sometimes called upon one another to help in investigations or to provide more impartial judgements as to appropriate punishments. Another interesting practice for achieving justice was codified in a rule that “resolved, that in case of any dispute arising between any members of the Company, that they shall be referred to three arbiters, one chosen by each party, and one by the two chosen, whose decisions shall be final.”
The large number of people crossing the Great Plains created a market for goods and services on the trail. Entrepreneurs quickly filled this niche. . . . potential gains from trade motivated more trade than fighting between Indians and whites.
That such beneficial interaction occurred, frequently and with considerable significance, contradicts the widely disseminated myth of incessant warfare between brave overlanders and treacherous Indians. . . .
While a relatively small number of overlanders relied upon Indians for route information or trail guidance, many overlanders willingly entrusted their stock, wagons, belongings, and even their families to Indian swimmers and boatmen at dangerous river crossings all along the trail. Most of this Indian assistance prevailed on the Oregon side of Fort Hall at crossings of the Snake and Deschutes rivers, and especially in navigating down the Columbia River from The Dalles.
Emigrants understood the importance of property rights for peaceful exchange and seemed to respect Indian property rights.
Emigrants knew and acted on the belief that, with the exception of stolen property, individual Indians owned what they possessed. If they wanted to own an Indian’s horse, emigrants sought to buy it, if they wished to use an Indian raft, they bargained with the owners to rent it. We have already seen that there were numerous Indian traders along the trail, selling anything from products such as salmon and vegetables to their expertise as woodsman, implying that they expected Overland emigrants to understand and act on their notions of personal ownership.
Famous disasters such as the Donner party’s demise crossing the Sierras contribute to the image of the wild, wild West, but for the untold numbers of farmers, miners, and entrepreneurs, crossing the plains “was a tale of sharing more than of dividing, a time of accommodation rather than discord. . . . The overland trail was not a place of conflict. More accurately, it was a place of settlement.”[7]
MINING CAMPS
The legal structure of wagon trains is a classic example of customary law. Equally notable are the legal underpinnings of mining camps (emphasis added for the following excerpts):
In the absence of formal government, miners in a particular location would gather and hammer out rules for peacefully establishing claims and resolving disputes over them. Since the streams they panned and the veins they mined had not previously been owned, their task was all the more difficult. Nevertheless, from the mining camps came rules for mineral and water allocation that exist to this day.
When territorial and state governments were formed, they codified the rules from mining camps . . . The rules that govern western mining and mineral rights evolved literally from the ground up.
In 1849, one observer noted that the mining camps rapidly developed a set of rules that “placed the strong and the weak upon a footing of equality, defined the claims that might be set apart, protected the tools left on the ground as evidence of proprietorship, and permitted the adventurers to hold their rights as securely as if they were guaranteed by a charter from the government.”
“Contrary to the television westerns which claim to depict this period of American history, the reported incidence of violence was remarkably low. Instead of fighting over the rights to mineral land, the miners entered into contractual arrangements which assigned mineral rights in an orderly and . . . predictable fashion.”
When conflicts arose among miners in a camp, a meeting was called and a contract drawn up that specified how property rights would be defined and enforced.
One of the most complete studies of the contracts is provided by Umbeck, who assembled nearly 200 of the original contracts that governed early mining camps. These contracts generally created property rights through the principle of first possession and also often granted a double claim to the initial discoverer of a strike.
Dispute resolution was rapid and effective under the rules of mining camps. In 1849, a participant noted, “Judgement and sentences and justice are too speedily executed here to make stealing profitable.”
The rules governing mining claims in California successfully established secure property rights to encourage efficient and orderly extraction of the gold . . . The effectiveness of the bottom-up system of property rights hammered out in California is confirmed by the fact that an active market in claims soon developed and by the fact that federal legislation formalizing this system of property rights had no discernible impact on gold extraction.[8]
SUMMARY
Although a pure system of customary law did not exist over the entire western region in the nineteenth century, it did exist in specific areas – mining camps and wagon trains are two examples. Additionally, certain characteristics of customary law are clearly evident elsewhere – vigilance committees for example.
Vigilance committees were created as temporary institutions, usually disbanded after successful resolution of problems created by authoritarian law. In contrast, the hundreds in medieval Anglo-Saxon England (see Part 2) were created in the complete absence of authoritarian law, and were therefore intended to be permanent institutions. The same is true of the medieval legal institutions in Iceland and Ireland, as well as the medieval Law Merchant. While their duration was much shorter, vigilance committees shared the incentives of their medieval ancestors – the desire to protect life and property. The voluntary nature of the vigilance committee also speaks to customary law. This was a bottom-up law enforcement institution. It is curious that government authorities often referred to vigilance committees as illegal institutions. When English kings began to impose authoritarian law, I would wager that members of the hundreds believed the royal law institutions to be illegal.
The history of the frontier is enormously instructive. Authoritarian law and Customary law were effectively in competition. Compelling evidence of the superiority of the latter is revealed through the performance of vigilance committees as compared to their authoritarian counterparts in Aurora, Bodie, and San Francisco. These were just three examples of many successful vigilante actions throughout the West.
We must remember that customary law predates authoritarian law. Customary law is naturally established as customs evolve. When one takes the time to think about this, it becomes obvious that events would naturally unfold this way. Why? Because good people – and most people are good people – understand that peace and prosperity come from cooperation, not conflict. Therefore, good people create institutions to protect life and property in order to promote the cooperation which is so vital to thriving communities. This concept was at the root of bottom-up law making in mining camps and wagon trains.
The state’s authoritarian law bureaucracy simply codified the mining camp rules which were previously established from the bottom up, just as kings did with Anglo-Saxon law. The state (or government), as a living, breathing entity, does not exist – it is an abstract concept. As such, the state does not enact laws; laws are enacted by individuals who operate within the realm of the state. So the question is not whether individuals are capable of creating laws, but rather which individuals, under which institutional structure, will create the laws.
Laws are ineffective if they are not enforced. Under customary law, individuals create laws only when they have the incentive to enforce the laws. People will not create laws when the cost of enforcement exceeds the benefits. Thus, the benefits of enforcement tend to be limited to protection of life and property. As Benson says:
A potential action by one person has to affect someone else before any question of legality can arise; any action that does not, such as what a person does alone or in voluntary cooperation with someone else but in a manner that clearly harms no one, is not likely to become the subject of a rule of conduct under customary law.[9]
Consistent with Benson’s observation, drug use and prostitution are prime examples of activities which would not likely be the subject of a rule of conduct under customary law. Both activities were legal and common on the western frontier. They are still common today, though illegal in many places, under a ubiquitous system of authoritarian law which produces crime rates significantly higher than on the frontier. In no small way, today’s high crime rate is a reflection of such victimless crimes (see Part 9).
As more laws are created by individuals under a system of authoritarian law, more resources (taxes) are required to fund police, court, and prison bureaucracies. This reveals a conflict of interest, as the desire to create laws is enhanced by the attendant revenue (taxes) for ostensible enforcement. High crime rates coupled with low crime resolution rates is not only the predictable result, but, I will argue, the intended result. Such are the perverse incentives inherent in authoritarian law.
Having exploded the Hollywood myth of a violent and lawless frontier, we can safely say that crime today is not a product of our frontier heritage. Sadly, crime prevention and resolution today is also not a product of our frontier heritage.
LET US CONSIDER THE ASSERTION FROM PART 2
Near the end of Part 2 we read that under customary law: Victims become incentivized to report offences, pursue prosecution, and receive their deserved restitution. This in turn serves as a disincentive for individuals to commit offences in the first place. “If I kill, rape or steal, I know for certain that a protection agency will be hot on my trail.” Thus, we should expect such a system to produce a lower crime rate, and a higher crime resolution rate, as compared to a system of authoritarian law. Logical as this assertion may be given the contrasting incentives in the two systems, the question remains “does the historical evidence support the assertion?”
Let us now consider the evidence from Iceland, Japan, and the Old West (data unavailable for Ireland and Anglo-Saxons).
It appears the most violent period of medieval Iceland coincided with its final collapse in the thirteenth century after more than two hundred years of coercive, violent interference by Norwegian kings. Even at this late stage, when Iceland’s legal institutions were clearly in decline, the murder rate was similar to that of the late twentieth century United States (see Part 3).
In Part 5 we saw that restitution – an important feature of customary law – is a significant component of the justice system in modern-day Japan. Japan’s crime rate is much lower than any other major industrial nation.
Various features of customary law were evident on the western frontier at a time when authoritarian law, where it existed, was much weaker than today. The result was a far lower crime rate (other than the unique nature of homicides) compared to modern-day authoritarian law in North America.
[1] Roger D. McGrath Gunfighters Highwaymen & Vigilantes (University of California Press, 1984) pp 250-53, 255-56, 258-59
[2] William D. Gairdner The Trouble With Canada . . . Still! (Key Porter Books Limited, Toronto, 2010) p 373
[3] Bruce L. Benson To Serve and Protect, Privatization and Community in Criminal Justice (New York University Press, 1998) pp 110-11
[4] Bruce L. Benson To Serve and Protect, Privatization and Community in Criminal Justice (New York University Press, 1998) pp 106 – 109 (source provided by Benson: Alan Valentine Vigilante Justice, New York: Reynal 1956)
[5] Ibid., p 110
[6] Terry L. Anderson and Peter J. Hill, The Not So Wild, Wild West, Property Rights on the Frontier (Stanford University Press, Stanford, California, 2004) pp 88-89 (additional sources provide by Anderson and Hill: David J. Wishart The Fur Trade of the American West 1807 – 1840 (Lincoln: University of Nebraska Press, 1979) p 194; Hiram Martin Chittenden The American Fur Trade of the Far West Vol. 1 (Stanford, Calif.: Academic Reprints, 1954) p 68
[7] Ibid., pp 120, 123-25, 128-29, 132-34, 137 [additional sources provided by Anderson and Hill: John Phillip Reid Law for the Elephant: Property and Social Behavior on the Overland Trail (San Marino, Calif.: Huntington Library, 1997) p 157, 213, 329; Barbara Julia Hansen Wagon Train Governments (Master’s thesis, University of Colorado, 1937) Appendix, pp 105-6; John Phillip Reid Policing the Elephant: Crime, Punishment, and Social Behavior on the Overland Trail (San Marino, Calif.: Huntington Library, 1997) pp 91, 94, 96, 104; John D. Unruh, Jr. The Plains Across: The Overland Emigrants and the Trans-Mississippi West, 1840-60 (Urbana and Chicago: University of Illinois Press, 1979) pp 156-57]
[8] Ibid., pp 105, 108, 110-12 [additional sources provided by Anderson and Hill: Richard O. Zerbe, Jr. and C. Leigh Anderson Culture and Fairness in the Development of Institutions in the California Gold Fields (Journal of Economic History, 61 (I), 2001) p 115; John R. Umbeck A Theory of Contract Choice and the California Gold Rush (Journal of Law and Economics, 20 (2), 1977) p 430; John R. Umbeck A Theory of Property Rights: With Application to the California Gold Rush (Ames: Iowa State University Press, 1981); Malcolm J. Rohrbough Days of Gold: The California Gold Rush and the American Nation (Berkeley: University of California Press, 1997) p 89; Rodman Paul California Gold: The Beginning of Mining in the Far West (Cambridge, Mass.: Harvard University Press, 1947) p 224]
[9] Bruce L. Benson The Enterprise of Law (The Independent Institute, 2011) p 13
