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Olmsted's Police

Published online by Cambridge University Press:  30 June 2015

Extract

The urbanization of nineteenth century America led to enormous changes in American criminal justice, as the rise of this dramatically more complex kind of human settlement posed new problems for legal regulation. Some of those problems are familiar. Many reformers emphasized the way cities eroded traditional controls on predatory crime, and they viewed modern police forces, public prosecution, and the modern penitentiary as a means of substituting formal social control for the informal controls of the past. But cities posed a different problem as well. In the city people made their homes in dense mixed-use environments that had not yet been sorted out and segregated along the lines of the modern metropolis, and when they ventured out of them they came together in the crowded streets, squares, and parks that proliferated in the nineteenth century. This complex environment made new demands on their behavior, as conduct that would have bothered no one in sparsely occupied rural spaces became problematic in the densely shared environments of the city. This change did not involve the collapse of old strategies for controlling familiar forms of bad behavior; it involved a shift in what sort of behavior counted as “bad” in the first place. The continued evolution of the urban environment, in turn, depended upon the ability of criminal justice institutions to grapple with these challenges. Shared environments require those who use them to develop and enforce rules to regulate the sharing.

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Copyright © the American Society for Legal History, Inc. 2015 

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References

1. See, for example, Richardson, James's statement that “the social controls of a stable society had broken down in many areas of the city” and that local government would soon be “providing substitutes” (The New York Police, Colonial Times to 1901 [New York: Oxford University Press, 1970], 16)Google Scholar; Miller, Wilbur's view of the new police as “an effort to substitute more formal and efficient social controls for a modest police apparatus” coupled with “common moral standards” (Cops and Bobbies [Chicago: University of Chicago Press, 1977], 5Google Scholar); Monkkonen, Eric's reference to the way “wars, depressions, vast population movements, and an economic transformation” generated crime and disorder in the nineteenth century city (Police in Urban America, 1860–1920 [New York: Cambridge University Press, 1981], 65)CrossRefGoogle Scholar; Walker, Samuel's comment that “informal social controls operated effectively” in “small and homogeneous” villages but that “as communities grew larger and more anonymous” they increasingly turned to formal law enforcement agencies (Popular Justice [New York: Oxford University Press, 1998], 27)Google Scholar; and Lane, Roger's observation that in the new cities “rootless visitors and residents freed from the old restraints required new and sometimes harsh methods of control” (Policing the City [Cambridge, MA: Harvard University Press, 1967], 2)CrossRefGoogle Scholar. Even regulatory law has been described on this model: “We were all at the mercy of strangers: the people who made our food, built our cars, flew the airplanes or drove the buses we rode on, poured the concrete for the buildings we worked in, installed elevators, boilers, furnaces, machinery of all types. What controls were there over their behavior? We never saw these people face to face--the builders, the workmen, the designers. We relied on law to keep them honest and true”: Friedman, Lawrence, Crime and Punishment in American History (New York: Basic Books, 1993)Google Scholar, 289. In each case, law mainly serves to replace customary controls to protect individuals from victimizing one another.

2. Schneider, John, Detroit and the Problem of Order, 1830–1880 (Lincoln: University Nebraska Press, 1980)Google Scholar; and Lane, Roger, “Crime and Criminal Statistics in Nineteenth-Century Massachusetts,” Journal of Social History 2 (1968): 163CrossRefGoogle Scholar.

3. On the shift away from amateur and popular control over criminal justice toward the professionalized administration of criminal justice prevalent today, see, especially, Steinberg, Allen, The Transformation of Criminal Justice (Philadelphia: Temple University Press, 1989)Google Scholar; for countercurrents, see Dale, Elizabeth, Criminal Justice in the United States, 1789–1939 (New York: Cambridge University Press, 2012)Google Scholar.

4. As Roger Lane put it: “Private citizens may initiate the processes of justice when injured directly, but professionals are usually required to deal with those whose merely immoral or distasteful behavior hurts no one in particular.” Lane, “Crime and Criminal Statistics in Massachusetts,” 160. For the challenges involved in enforcing laws designed to protect the public realm before the rise of the modern police, see, for example, Flaherty, David, Privacy in Colonial New England (Charlottesville: University of Virginia Press, 1972)Google Scholar, ch. 7; Smith, Joseph, Colonial Justice in Western Massachusetts (Cambridge, MA: Harvard University Press, 1961)Google Scholar, 110–14, 124–26; and Steinberg, Transformation of Criminal Justice, 131–35.

5. I argue that the heart of the order maintenance function involves the control of unfair use of shared spaces in “Order Maintenance,” in Oxford Handbook of Police and Policing, eds. Reisig, Michael and Kane, Robert (New York: Oxford University Press, 2014)Google Scholar, 122–47. For the growth of order maintenance cases in the legal system after the establishment of modern police agencies, see Allan Levett, “Centralization of City Police in the Nineteenth Century United States” (PhD diss., University of Michigan, Department of Sociology, 1975), 54–57; and Steinberg, Transformation of Criminal Justice, 29–30, 226. For the same pattern in England, see Philips, David, Crime and Authority in Victorian England (London: Croom Helm, 1977), 8487Google Scholar. For the ubiquity of order maintenance work in mid- to late-nineteenth century American police, see Monkkonen, Police in Urban America, 103.

6. On the embodiment of legal and moral values in institutions and their practices, see Selznick, Philip, The Moral Commonwealth (Berkeley: University California Press, 1994)Google Scholar, part III; and Selznick, Leadership in Administration (Evanston: Row, Peterson, 1957)Google Scholar. Given the importance of the distinctive institutional commitments of the modern police, a full understanding of the regulation of individual behavior in the urban public realm requires a more organizationally specific understanding of “policing” than the one influentially advocated by Tomlins, Christopher, Law, Labor, and Ideology in the Early American Republic (New York: Cambridge University Press, 1993)CrossRefGoogle Scholar, ch. 2. Willard Hurst articulated clearly the value of this kind of institutional understanding in legal scholarship. Trying to hire the Wisconsin Law School's first policing scholar in 1963, Hurst commented: “Given the working reality, that the bulk of public policy expressed in the criminal law finds its whole content in what the police do or do not do, it is disturbing … that to date there has been practically no law school effort to come to terms with the operating values in police activity.” Sattinger, Dianne, “How I Got Here: Herman Goldstein,” Gargoyle 33 (2008): 19Google Scholar. For the decoupling of police from the rest of the criminal justice system, see Haller, Mark, “Historical Roots of Police Behavior: Chicago, 1890–1925,” Law and Society Review 10 (1975): 303–24CrossRefGoogle Scholar; Bittner, Egon, Aspects of Police Work, (Boston: Northeastern University Press, 1990) 109–19Google Scholar.

7. Wertsch, Douglas. “The Evolution of the Des Moines Police Department,” Annals of Iowa 48 (1987): 448Google Scholar; compare Watts, EugenePolice Response to Crime and Disorder in Twentieth-Century St. Louis,” Journal of American History 70 (1983): 340–58CrossRefGoogle Scholar. Beyond this overt idea that the real mission of the police is the control of serious, predatory crime, the influence of the 911 system on the bulk of police activity tends to downplay the importance of public order; see, for example, Moskos, Peter, Cop in the Hood (Princeton: Princeton University Press, 2008)Google Scholar, 109.

8. For the continued neglect of the order maintenance role by police managers and reformers through the past half century, see, for example, Bittner, Egon, “The Police on Skid Row,” American Sociological Review 32 (1967): 715CrossRefGoogle Scholar; George Kelling, Police Discretion and ‘Broken Windows,’ National Institute of Justice Research Report (Washington, DC: United States Department of Justice), 1996, p. 16.

9. Wilson, James Q. and Kelling, George, “Broken Windows.” Atlantic Monthly 249 (1982): 2938Google Scholar.

10. For example, LaFave, Wayne, Arrest (Boston: Little, Brown, and Co, 1965)Google Scholar, 354 ff.; Tiffany, Lawrence, McIntyre, Donald, and Rotenberg, Daniel, The Detection of Crime (Boston: Little, Brown, and Co., 1967),129–31Google Scholar; Steinberg, Transformation of Criminal Justice, 153, 178; Johnson, David R.. Policing the Urban Underworld: The Impact of Crime on the development of the American police, 1800–1887. (Philadelphia: Temple University Press, 1979)Google Scholar, 126; Freund, Ernst, The Police Power: Public Policy and Constitutional Rights (Chicago: Callaghan & Co., 1904)Google Scholar, 100; and Douglas, William, “Vagrancy and Arrest on Suspicion,” Yale Law Journal 70 (1960): 114CrossRefGoogle Scholar.

11. von Hirsch, Andrew, “‘Remote’ Harms and Fair Imputation,” in Harm and Culpability, eds. Simester, Andrew and Smith, Tony (Oxford: Clarendon, 1996), 259–76CrossRefGoogle Scholar; Thacher, David, “Order Maintenance Reconsidered,” The Journal of Criminal Law and Criminology 94 (2004): 381414CrossRefGoogle Scholar; Harcourt, Bernard, Illusion of Order (Cambridge, MA: Harvard University Press, 2001)Google Scholar; and Fagan, Jeffrey and Davies, Garth, “Street Stops and Broken Windows,” Fordham Urban Law Journal 28 (2000): 457504Google Scholar. Some order maintenance advocates have rejected the dominant emphasis on preventing serious harms to individuals, embracing a form of legal moralism that conceives order maintenance work as an aspect of the police role defending community norms: see, for example, Sykes, Gary, “Street Justice: A Moral Defense of Order Maintenance Policing,” Justice Quarterly 3 (1986): 497512CrossRefGoogle Scholar; and Kelling, George, “Acquiring a Taste for Order,” Crime and Delinquency 33 (1987): 90102CrossRefGoogle Scholar. That approach arguably provides even fewer safeguards against abuse and distortion. For critiques, see Klockars, Carl, “Street Justice: Some Micro-Moral Reservations,” Justice Quarterly 3 (1986): 513–16CrossRefGoogle Scholar; and Klockars, “Order Maintenance, the Quality of Urban Life, and Police: A Different Line of Argument,” in Police Leadership in America, ed. Geller, William (New York: Praeger, 1985): 309–22Google Scholar. For the abuse of order maintenance authority to impose dominant moral standards on the lower class, Southern blacks, and gays, see, for example, Harring, Sidney, Policing a Class Society (New Brunswick: Rutgers University Press, 1983)Google Scholar, 198; Risa Goluboff. Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s (New York: Oxford University Press, forthcoming 2016); and Chauncey, George, Gay New York (New York: Basic, 1995)Google Scholar, 185. In this article, I aim to develop a conception of the order maintenance role (and thereby the police role more broadly) that is distinct both from this moralistic position, on the one hand, and from the more prominent liberal position focused on serious harms to individuals, on the other.

12. For the importance of the urban parks movement (and Central Park in particular) in reshaping the nineteenth century city, see Schuyler, David, The New Urban Landscape (Baltimore: Johns Hopkins University Press, 1988)Google Scholar.

13. Feinberg, Joel, Harm to Others (New York: Oxford University Press, 1985), 225–32Google Scholar; and Kernohan, Andrew, “Accumulative Harms and the Interpretation of the Harm Principle,” Social Theory and Practice 19 (1993): 5172CrossRefGoogle Scholar. Compare Glover, Jonathan, “It Makes No Difference Whether Or Not I Do It,” Proceedings of the Aristotelian Society 49 Suppl. (1975): 171209CrossRefGoogle Scholar; and Kagan, Shelly, “Do I Make a Difference?” Philosophy and Public Affairs 39 (2011): 105–41CrossRefGoogle Scholar. This way of understanding the significance of public order offenses contrasts sharply with the “broken windows” approach. It conceptualizes them as constitutive components of some more obvious harm rather than causal agents in producing it; compare Thacher, “Order Maintenance Reconsidered.”

14. Parrillo, Nicholas, Against the Profit Motive: The Salary Revolution in American Government, 1780–1940 (New Haven: Yale University Press, 2013), 2426CrossRefGoogle Scholar.

15. See note 109.

16. Parrillo, Against the Profit Motive, 33–40, 199–220, 241–52, 272–94, 302–6, 329–52.

17. Novak, William, The People's Welfare: Law and Regulation in the Nineteenth-Century City (Chapel Hill: University North Carolina Press, 1996)Google Scholar, 219, 146, 220, 140. Sanitation and pollution laws resembled the kind of problem Olmsted emphasized more closely; I return to that comparison in the conclusion.

18. To reconstruct Olmsted's views about the police, I rely mainly on the extensive papers that have survived from his years working on Central Park. Most of them appear in the series of published volumes overseen by Charles Beveridge, which aimed to make Olmsted's most significant correspondence easily accessible: Beveridge, Charles E., Senior Series Editor, The Papers of Frederick Law Olmsted (Baltimore: Johns Hopkins University Press, 1977–2013)Google Scholar, hereafter cited as FLOP with volume and page numbers. Because my focus on Olmsted's police work is idiosyncratic, I also returned to the core source material in the Frederick Law Olmsted papers at the Library of Congress (hereafter FLO Mss.). I also reviewed the minutes, documents, and reports of the Central Park board through the end of the nineteenth century; news coverage of Central Park's police during and immediately before Olmsted's tenure; the secondary literature about Olmsted's park work; and his writing about topics other than Central Park that discuss policing.

19. New York Senate, “Report of the Minority of the Select Committee on the Bill Relative to a Public Park in New York,” June 23, 1853.

20. For discussion of the volatile organization and reputation New York's police during this period, see Richardson, New York Police, ch. 3–4, and Richardson, “Mayor Fernando Wood and the New York Police Force, 1855–1857,” The New York Historical Society Quarterly 50 (1966): 540Google Scholar. In 1857, the Republican state legislature wrested control over New York's police from the Democratic local government by creating a new “Metropolitan” oversight board appointed at the state level. At the same time, the legislature transferred authority over Central Park to a similar state-appointed board.

21. “A Central Park Police,” New York Daily Times, May 30, 1856, page 8. This initial force apparently reported to the municipal police as well as to park officials, as the city quickly installed a telegraph line connecting the park police station with police headquarters: New York Herald, July 18, 1856, page 8. It was clearly a makeshift force. It took a year it to pay its officers, as some aldermen argued that the interim park managers lacked authority to hire police: “Payment of the Central Park Police,” New York Daily Times, April 9, 1857, page 1 and January 7, 1858, page 8.

22. BCCP Minutes, July 21 and 28, 1857, and February 2, 1858.

23. New York Senate, Doc. 18, Report of the Special Committee Appointed to Examine the Condition, Affairs, and Progress of the New York Central Park, January 25, 1861, 35.

24. FLO to BCCP president, August 12, 1857, FLOP III: 76. On Olmsted's early knowledge of the superintendency and his efforts to win the position, see “Passages in the Life of an Unpractical Man,” FLOP III: 85–94; FLO to Asa Gray, August 20, 1857, FLOP III: 77; FLO to John Hull Olmsted, September 11, 1857, FLOP III: 79–84; and Roper, Laura Wood, FLO: A Biography of Frederick Law Olmsted (Baltimore: Johns Hopkins University Press, 1973)Google Scholar, ch. 11.

25. The work on drainage and tree planting appears in FLO to BCCP, October 6 and 16, 1857, FLOP III: 94–101, 106–13; the timing of his design work with Vaux appears in FLOP III: 453; and the employment figures in Fredrick Law Olmsted, Jr., and Kimball, Theodora, eds. Forty Years of Landscape Architecture (Cambridge: MIT Press, 1973)Google Scholar, 533–34 (hereafter FYLA).

26. John Butterworth to FLO, September 8, 1859 (FLOP III: 229); and FLO to BCCP, December 28, 1859 (FLOP III: 234–39). Requests to appoint park keepers include (all in FLO Mss.): Green to FLO, April 30, 1860 (urging Olmsted to reappoint an admittedly “old” keeper to “one of the less frequented gates”); Francis Hawks to FLO, November 18, 1859 (recommending a needy family man on the grounds that his appointment could be made “without injuring the public interest”); and Fields to FLO, September 20, 1859 (whose “recommendation” read in its entirety: “Mr. Olmsted will most oblige me if he will appoint Mr. Fischer”).

27. On the idea of the substance of police work, see Goldstein, Herman, “Improving Policing: A Problem-Oriented Approach,” Crime and Delinquency 25 (1979): 236–58CrossRefGoogle Scholar.

28. On the collection European ordinances, see BCCP Minutes, December 9, 1858; for the visits with European police, see FLO to BCCP, December 29,1859, FLOP III: 236.

29. FLO, “Spoils of the Park,” FLOP VII: 619; “A Card from Mr. Olmsted”, New York Tribune, June 3, 1873, page 5 (reprinted in FLOP VI: 604–10).

30. Succinct discussion of Mayne's ideas (and those of his collaborators) appears in Miller, Cops and Bobbies, 38–42. See also Critchley, Thomas, A History of the Police in England and Wales (London: Constable & Co. 1967)Google Scholar; Tobias, John, Crime and the Police in England, 1700–1900 (London: Gill and Macmillan 1979)Google Scholar; and Cobb, Belton, The First Detectives and the Early Career of Richard Mayne (London: Faber and Faber, 1957)Google Scholar.

31. A clear statement of the deterrence philosophy appears in Miller, Cops and Bobbies, ix–x; Miller discusses Mayne's philosophy, which stressed the preventative value of a highly visible uniformed force, at 33–36. Actual police work during this period probably did not follow this model very closely––as I noted in the introduction, the early Anglo-American police spent most of their time on order maintenance, not crime control—but the idea itself remains powerful down to the present; it was the idea, rather than the actual practice of the municipal police, that served as Olmsted's foil.

32. “General Order for the Organization and Routine Duty of the Keepers’ Service of the Central Park,” March 31, 1873, FLOP I Supp.: 300 (hereafter “General Order”).

33. Olmsted left New York during the civil war to run the United States Sanitary Commission, and it took several years and a few diversions before he returned to park management.

34. FLO to Board of Commissioners of the Department of Public Parks, October 23, 1872, FLOP VI: 577–78. The BCCP was renamed the Board of Commissioners of the Department of Public Parks (BCDPP) under Tammany.

35. “General Order,” 301.

36. “To the BCCP,” October 13, 1857, FYLA: 58–59. A few years later, Olmsted penned an early challenge to the common view that the countryside itself was an infinitely renewable common resource; see his “Preliminary Report upon the Yosemite and Big Tree Grove,” August, 1865, FLOP V: 507–8.

37. “Report of the Landscape Architect on the Recent Changes in the Keepers Service,” July 8, 1873, FLOP VI: 613.

38. The New York Daily Times's dare appears in “A Central Park Police,” May 30, 1856, 8. Roy Rosensweig and Elizabeth Blackmar summarize subsistence activities on the park land before 1857 in chapter 3 of The Park and the People (Ithaca: Cornell University Press, 1992)Google Scholar; page 91 notes the early arrest for stealing park stones. The board resolved to hire twenty-two officers in the summer of 1857 in order “to secure the property at the park from depredation and destruction”: BCCP Minutes, July 21, 1857.

39. BCCP Doc. 3, May 26, 1857.

40. BCCP Docs. 3 and 9, May 26 and September 23, 1857; “Corporation Notices”, New York Herald, August 29, 1858, page 3; and BCCP Second Annual Report, 1859, 35.

41. One report of stolen bulbs appears in A.J. Dallas to FLO, April 8, 1861, FLO Mss.; see also the report of “flower pilferers” in “Central Park on a Windy Sunday,” New York Herald, May 21, 1860, page 1. Other threats to the park's physical environment appear in Green to FLO, June 10, 1861, FLO Mss.

42. The enforcement examples appear in NY Herald, “How NY Breathes on Sunday,” July 30, 1860, page 1; and “Central Park on a Windy Sunday,” May 21, 1860, page 1; and in “The Central Park,” New York Times, February 21, 1859, page 4.

43. “The Central Park,” New York Times, February 21, 1859, page 4. The paper's editors added that the city's existing public spaces provided an equally poor model: “Every one must cease as soon as possible to associate [Central Park] in his mind with that dirty play–ground in front of the City Hall.”

44. “General Order,” 298, original emphasis.

45. FLO to BCCP January 22, 1861, FLOP III: 304.

46. “General Order,” 298.

47. Reprinted in “The Central Park,” New York Times, February 21, 1859, page 4.

48. “General Order,” 299–300.

49. Of approximately 1,000 arrests recorded by park police during the 1860s, 512 were for speeding. Records are spottier before 1861, but “The Central Park,” New York Times, February 21, 1859, page 4 cites Olmsted's early claim that most ordinance violations (approximately half of the total arrests in 1859) involve damage to the park's natural environment.

50. FLO to BCCP, August 27, 1874, FLOP VII:74–81. The manuscript of the text, covered in strikethroughs and emendations, shows that Olmsted labored over this crucial passage.

51. In “Public Parks and the Enlargement of Towns,” Olmsted wrote that urban experience led people to regard each other “in a hard if not hardening way” and bred “a peculiarly hard sort of selfishness,” and he argued that urban parks could help counteract this atomizing environment by providing an “opportunity and inducement to escape from conditions requiring vigilance, wariness, and activity toward other men” (FLOP I Supp.: 182–183). In this respect he shared the views of many other nineteenth century observers, who often worried that city life and commerce threatened to corrode social solidarity and leave American society fragmented; see Bluestone, Daniel, “From Promenade to Park,” American Quarterly 39 (1987): 529–50CrossRefGoogle Scholar.

52. Letter to Henry Stebbins and BCCP, August 27, 1874, FLOP VII: 76; Olmsted often gave this claim a psychiatric twist, maintaining that pastoral urban parks had a “tranquilizing influence on the nerves,” for example, in “General Order,” 299.

53. “The Greensward Plan,” FLOP III: 121. The frontspiece to the Third Annual Report of the Board of Commissioners of Central Park (1860) titled “Archway under Carriage Drive” captures this idea visually, showing a mishmash of sheep, horse-drawn carriages, children running in the street, and harried workers lining the side of the road under a park bridge bursting with lush trees. For Olmsted and Vaux's general philosophy of the park's physical landscape, see Beveridge, Charles, “Frederick Law Olmsted's Theory of Landscape Design,” The Nineteenth Century 3 (1977): 3843Google Scholar; and “A Consideration of Motives, Requirements and Restrictions Applicable to the General Scheme of the Park,” FLOP I Supp.: 239–55.

54. “General Order,” 300.

55. Near the end of his tenure as superintendent, Olmsted worried that widespread violation of these rules threatened to undermine the park's “special rural attractions”; see Letter to Stebbins and BCCP, August 27, 1874 FLOP VII: 76. A good account of the Greensward Plan's competitors appears in Rosensweig and Blackmar, The Park and the People, ch. 4. Lewis Mumford was among the earliest commentators to identify the distinctive character of Olmsted's pastoral vision for urban parks; see The Brown Decades (New York: Harcourt, Brace, and Company, 1931), 3543Google Scholar.

56. “Distinction Between the Duty Required of Park Police and City Police,” 1872, FLO Mss.

57. FLO to Stebbins, July 30, 1873, FLOP VI: 639.

58. “Report of the Landscape Architect on the Recent Changes in the Keepers’ Service,” July 8, 1873, FLOP VI: 611–12. The word “efficient” in the penultimate sentence is unfortunate; Olmsted clearly has in mind not how economically the park police pursued their goals but their limited conception of what those goals were.

59. FLO to Albert Browne, November 12, 1874, FLOP VII: 83.

60. FLO to BCCP, October 23, 1872, FLOP VI: 575.

61. “Report of the Landscape Architect on the Recent Changes in the Keepers’ Service,” July 8, 1873, FLOP VI: 623–25.

62. FLO to BCDPP, January–February 1875, FLOP VII: 119.

63. Robert Demcker to FLO, August 27, 1874, FLO Mss. Olmsted notes other reports of the keepers’ failure to stop misuse of the park in FLO to Stebbins, August 27, 1874, FLOP VII: 74–82.

64. Koster to Stebbins, September 12, 1874, FLO Mss. In Koster's own words, the park police role “consist[s] in specific positive and direct application of the law.” His main purpose for writing was to question Olmsted's most ambitious ideas about the standards of behavior the keepers could realistically enforce.

65. FLO to Stebbins, September 19, 1874; FLO Mss.; Koster's brief response confirming Olmsted's summary appears in Koster to Stebbins, September 22, 1874, FLO Mss.

66. FLO to BCDPP, January–February 1875, FLOP VII: 117–21.

67. FLO to BCDPP, March 1, 1875, FLOP VII: 126–27.

68. FLOP VII: 598.

69. The new rule, adopted over the objections of the one remaining Republican commissioner, read: “All drunken, disorderly, or improper persons, and all persons doing any act injurious to such parks, squares, or places, may be removed therefrom by the park-keepers in charge thereof” (DPP Minutes, May 23, 1871). When Tammany Commissioner Henry Hilton originally proposed it, the rule had been even coarser: “All filthy or offensive persons may be removed” (DPP Minutes, May 8, 1871). The authority to exclude disreputable people was on the short list of Tammany priorities for the keepers. It was echoed 2 years later in a letter to the New York Daily Tribune that called for a return to Tammany's approach to park keeping: “Not only those of disorderly conduct, but every one recognized as being of disorderly character, ought be rigorously excluded,” the letter-writer implored (“Central Park in Danger,” New York Daily Tribune, May 28, 1873, 4). News coverage of the board's meetings ignored both the ordinance changes and the new police rules, perhaps indicating a lack of public interest in the topic.

70. DPP Minutes, May 23, 1871. (Compare, by contrast, the voluminous discussion of the substance of park keepers’ work in Olmsted's “General Order,” described earlier in this article.) The most significant administrative change in the new police rules transferred the power to appoint keepers from the superintendent to the board president, presumably to facilitate patronage. The board also expanded the force, as discussed later in this article. For a useful account of the transformation of park politics and governance after 1870, see Rosensweig and Blackmar, The Park and the People, ch. 11–12; they report an easing of park rules during this era (pp. 309 ff.); however, the rules they have in mind were Sabbatarian restrictions on Sunday concerts and rentals rather than general rules of behavior in the park.

71. “Distinction Between the Duty Required of Park Police and City Police,” 1872, FLO Mss.

72. Olmsted received little correspondence from the Metropolitan Police, and none of it said much about how the park keepers should do their jobs: for example, John Kennedy [Metropolitan Police Commissioner] to FLO, April 9 1861, FLO Mss., regarding private organizations of men ready to support the government in case of military conflict. The park police and the Metropolitan Police seemed to operate independently. In 1879, the Corporation Counsel was asked to issue an advisory opinion as to whether the park police shared their jurisdiction over park property with the city police. (A Metropolitan officer had tried to arrest a park bartender for selling liquor on Sunday, in violation of city but not park rules, but a park keeper had intervened.) Along the way to his conclusion that they did not, the Counsel noted the generally hands-off attitude the city police had taken towards the park: “The police department, except, perhaps, in isolated cases, like the one mentioned in your letter, has never attempted to exercise any jurisdiction or control over the public parks…. The understanding appears to have been that the Police Department had nothing to do with police matters in the different parks”: William Whitney to Seth Hawley, November 28, 1879; reprinted in DPP Minutes and Docs, year ending April 30, 1880, 302. It took nearly two more decades before the municipal police absorbed the keepers’ force in 1898: DPP Annual Report, 1898.

73. Mills and Schofield assumed command of the keepers December 9, 1870 : DPP Minutes, December 13, 1870. For Mills’ background with the Metropolitan police, see “Captain Mills, of the Broadway Squadron, Made Captain of the Park Police,” Commercial Advertiser, December 10, 1870, 3; New York Herald, December 11, 1871. For Schofield's service under him at the Metropolitan police, see Valentine, David T., Manual of the Corporation of the City of New York (New York: Edmund Jones & Co., 1866)Google Scholar, 110. It is possible that the Tammany board understood how Mills and Schofield would alter enforcement practice, and by appointing them it indirectly sought to deregulate park usage; however, there is no direct evidence that it intended to do so, and the fact that the board actually added new rules to the park ordinances seems inconsistent with this possibility. I do not mean to imply that Mills and Schofield alone brought police culture to the keepers, but they do seem to represent an important shift from the early days of the keepers’ force drawn from the park mechanics and foremen.

74. “Distinction Between the Duty Required of Park Police and City Police,” 1872, FLO Mss. Close to the same time, Olmsted wrote that he had objected to Mills's appointment because he “was new to the park, wholly uninstructed in its special requirements,” chosen only because “he had passed reputably through the various ranks of the metropolitan police to the rank of captain, and was thus assumed to have a familiar knowledge of, and proficiency in, the common duties of that force”: “To the BCDPP,” October 23, 1872, FLOP VI: 577.

75. “Report of the Landscape Architect on the Recent Changes in the Keepers’ Service,” FLOP VI: 611; compare FLO to Stebbins, July 30, 1873, FLOP VI: 639: “From the first, the design of the Park has assumed a very different class of attendance on visitors from that of ordinary policemen and my professional judgment has been often expressed to the Board that there is nothing so important for the justification of the design as a Keeper's force under such management as was originally intended.” Olmsted returned to this theme in his work on other parks. Writing about Detroit's Belle Isle, he complained that “a character of park is attempted … that the tax-payers will not allow to be creditably maintained,” leading to “too much of shabby gentility,” The Park for Detroit (Boston: Rand, Avery & Co., 1882), 21–22.

76. FLOP I Supp.: 189–90.

77. “General Order,” 300; BCCP Third Annual Report, 1860. 40.

78. BCCP Fifth Annual Report, 1862, 47–49.

79. FLO to Green, November 10, 1860, FLOP III: 279. A decade later he elaborated the thought in a report to the city of New Britain, noting that “there is nothing which people desire more in a park than to walk upon the turf,” and, therefore, “there is no regulation so offensive or so difficult to enforce as one requiring them to keep off from it”; even an “expensive police force” would find the task impossible: FLO to the Board of Park Commissioners of New Britain, Connecticut, March 23, 1870, FLOP VI: 362. He went on to draw out more specific design implications: “The extent of open turf should be large relatively to the number of people who will resort to it”; moreover, “nothing should be attempted, on the ground devoted to this purpose, which requires to be very carefully treated or which would be liable to serious injury from such usage as would be incident to athletic sports.” Elaborate plantings, however desirable, would take more maintenance and policing than the city and its residents could tolerate or afford.

80. New York Times, November 15, 1875, 4.

81. FLO to Jones, November 19, 1875, FLOP VII: 160–63. The Times's complaints about the turf rules stopped after Olmsted's letter.

82. FLO to BCDPP, May 19, 1875, FLOP VII: 139ff.

83. FLO to BCCP, November 13, 1860, FLOP III: 280–84; and BCCP Fourth Annual Report (1861): 48–49.

84. FLO to Green, November 3 and 10, 1860, FLOP III: 279; FLO to Green, August 26, 1861, FYLA: 414; and Green to FLO, June 10, 1861, FLO Mss.

85. BCCP Minutes September 23, 1859; and Green to FLO, September 5, 1859, March 10, 1860, and December 18, 1860, all in FLO Mss.

86. Doc. 2 BCCP, September 2, 1859, 18.

87. BCCP Doc. 6 April 30,1860; compare FLO to Richard Blatchford, December 17, 1860, FLOP III: 290. Many taverns and liquor stores had sprung up around Central Park, and Olmsted believed that they supplied alcohol irresponsibly––to people who were already visibly drunk, and in an all-male environment that encouraged rowdiness.

88. BCCP Doc. 6 April 30, 1860; and FLO to Thomas Lloyd, November 28, 1859, FLO Mss.

89. For example, “The Cold Snap,” New York Herald, January 14, 1861, 5.

90. As Olmsted put it: “Few persons fully comprehend the purposes of a park, and still fewer, especially city-bred persons, fully appreciate the conditions upon which the real value of the various elements of a park depend.” “Report of the Landscape Architect on the Recent Changes in the Keepers Service,” July 8, 1873, FLOP VI: 613.

91. “General Order,” 290, 301, 292; compare also “Report of the Landscape Architect on the Recent Changes in the Keepers’ Service,” July 8, 1873, FLOP VI: 613, which defined the keepers’ mission as “the prevention of ignorant and inconsiderate misuse of the park” through “education.” The seeds of this fully articulated position from the 1870s were present from the start; for example, an 1859 annual report announced: “The duty of the Park-keepers is, by timely instruction, caution, and warning, to prevent disorderly and unseemly practices upon the Park, and thus, as far as practicable, to avoid occasion for arrests” (BCCP Annual Report, 1859, 45).

92. BCCP Annual Reports, 1858–1868.

93. “General Order”, 304, 302, 305, 303, 304. Similar language regularly found its way into the Board's annual reports; for example, “The larger proportion of the offences at the park are of a venial character, and are the result either of thoughtlessness or carelessness… In most cases a polite suggestion to recall the wandering attention is quite sufficient to prevent the repetition of an offense” (BCCP Annual Report 1863, 30).

94. Dozens of signs announcing the rules were posted around the park, but Olmsted rarely even mentioned them. See “List of Signs in Use in Central Park,” FLO Mss, 1871.

95. “General Order,” 304, 302, 304.

96. FLO to BCDPP, October 23, 1872, FLOP VI: 580–81.

97. FLO to BCDPP, October 23, 1872, FLOP VI: 575 (“disregard of some of the park ordinances passes so frequently unnoticed that … an attempt to enforce them … seem a capricious exercise of authority”); “Report on Turf”, May 1875, FLYA 428–32 (“it is so evidently absurd to interfere with a single visitor in doing what hundreds of others may be doing that the regulations for preserving the turf and tender plants are practically regarded by the keepers themselves as a dead letter”). These considerations presumably made it unattractive to pursue the strategy of discretionary nonenforcement and forbearance used in other fields to soften the sharp edges of alien imposition: Parrillo, Against the Profit Motive, 39–40, 245–47, 277–79, 288–92. Olmsted wanted a moderate but consistent response to violations, and he turned to the educational approach to provide it.

98. For Olmsted's concerns about the erosion of quality during the Tammany period, and the way inconsistency undermined the keepers’ authority, see FLO to BCDPP, October 23, 1872, FLOP VI: 575–76, 579–82.

99. FLO to BCDPP, October 23, 1872, FLOP VI: 580–1; cf. FLO to Green, December 21, 1860, FLOP III: 290.

100. “A proposition to discharge 600 of our regular patrolmen and in their stead invest 1,000 street-sweepers with brown jackets and power to order idlers to move on would hardly find much popular favor”; see “Central Park in Danger,” New York Daily Tribune, May 28, 1873, 4. (The author of this article was almost certainly a former keeper writing pseudonymously.) Tammany Commissioner Henry Hilton expressed similar complaints about Olmsted's hybrid policing arrangement, although without the contemptuous language about “mongrel” officials: “Interview with a Park Commissioner,” New York Herald, October 23, 1871, 5; DPP Minutes October 24, 1871, 277.

101. DPP Minutes, May 14, 1875, 28–29; the board approved the resolution unanimously. Commenting on the issue a few days later in a letter to the board, Olmsted once again expresses resignation about the keepers’ commitment to this kind of work; perhaps he sought to enlist the rest of the park workforce to help with this job because they would not find it “beneath them” (FLO to Stebbins, May18, 1875, FLOP VII: 139–43).

102. FLO to BCDPP, October 23, 1872, FLOP VI: 574; cf. “General Order,” 304. There is of course no way to verify Olmsted's 150-year-old perceptions, but for what they are worth, contemporary newspapers (including those that criticized park officials on other occasions) uniformly complimented the keepers’ effectiveness and restraint during this era. One report described the force as “ubiquitous but unobtrusive,” whereas another praised “the universally polite demeanor of the intelligent policemen stationed on the grounds” and suggested that city police should take notes from them: “The People in the Central Park,” New York Times, August 1, 1859, page 4; and “The Day in Central Park and Jones’ Woods,” New York Herald, July 25, 1859, page 5. Widespread criticism came later. The derogatory term “sparrow police” first appeared in print in 1876, 3 years after Olmsted had lost considerable control over the force, and after it had turned to a more conventional approach to policing: “City Notes,” Commercial Advertiser, August 26, 1876, page 3. A few years later, the board became concerned about the declining reputation of the force (DPP Minutes, September 3, 1879, 183), and public discourse about the force became more and more critical in the course of the following decade; by 1887 the Albany Law Journal openly satirized its reputation: “Notes,” September 3, 1887, 200.

103. BCCP Annual Report, 1862, 27–28.

104. “Our Winter Amusements,” New York Herald, December 27, 1858. Olmsted's own concession about the need to police predatory crimes like pickpocketing appears in FLO to BCDPP, October 23, 1872, FLOP VI: 572.

105. Valentine, David T., A Compilation of the Laws of the State of New York, Relating Particularly to the City of New York (New York: Edmund Jones & Co., 1862)Google Scholar, ch. 171, sec. 14–15 (adopted April 17, 1857), 331.

106. BCCP, Doc. 2, July 21, 1859, 23.

107. “The sergeants must be carefully instructed in the duty of the preliminary examination of prisoners and the determination of the question whether they shall be sent before a magistrate”: “Memo on Supervision of the Force,” 1872, FLO Mss. Cases were usually tried in the Yorkville police court.

108. BCCP Annual Reports, 1863–1869. Confinement included the house of corrections, the asylum, and the almshouse. If anyone challenged these sanctions, no challenge appears in reported cases or news reports of police court proceedings.

109. By contrast, social historians have interpreted the park keepers’ educative mission as a tool of social uplift for the lower classes; for example, Scobey, David, Empire City (Philadelphia: Temple University Press, 2003)Google Scholar, 213, 240; Rosensweig and Blackmar, The Park and the People, ch. 9; and Taylor, Dorceta, “Central Park as a Model for Social Control,” Journal of Leisure Research 31 (1999): 420–77CrossRefGoogle Scholar. By locating Olmsted's philosophy within the story of nineteenth century legal development, it is easier to see the keepers’ educational mission as a distinctive regulatory strategy tailored to the challenges posed by shared urban environments (and the complexity of the modern world more generally). The discussion so far should make clear that the “education” Olmsted wanted the keepers to provide was not an education about virtue or general habits of life but an education about specific behaviors toward the park environment. The behaviors themselves, in turn, required education not because they embodied upper-class standards imposed on an unruly lower class but because they embodied the alien demands that a new kind of (shared, designed) environment imposed on all classes. (Recall that most arrests were for fast driving, and many of the rest involved damage to the park's physical environment, such as gathering flower bulbs and birds’ nests.) Although there is surely more to say about the strengths and weaknesses of social historians’ interpretation of the park police, here I want to focus on developing an alternative interpretation rather than on critique.

110. DPP Annual Report, 1871–72, 16.

111. For the uneven enforcement of many park rules under Mills, see the discussion earlier in this article. The surge in arrests is evident from the park's annual reports, which show that the keepers made nearly four times as many arrests in 1871 as in any previous year. (Throughout the 1860s the keepers never made more than 135 arrests in a single year, but in 1871 they made 489, and in 1872 they made 367; by 1873 the number of arrests in Central Park fell back to 150.) Olmsted's report on the keepers’ force in the fall of 1872 (after Tammany lost control of the park board) computes the number of arrests per visitor and finds that during the Tammany era that rate tripled––not, he speculates, because misbehavior rose but because the keepers shifted from a preventative to a law enforcement orientation: DPP Annual Report, 1871–2, 16.

112. FLO to BCDPP October 23 1872, FLOP VI: 578.

113. Stradling, David, Smokestacks and Progressives: Environmentalists, Engineers, and Air Quality in America, 1881–1951 (Baltimore, Johns Hopkins University Press, 1999), 6465Google Scholar. Christine Rosen shows that this pro-defendant attitude toward nuisance industries applied selectively to the new industrial nuisances, not traditional nuisances such as slaughterhouses and tanneries, and she notes in passing that some mid-nineteenth century judges failed to recognize how industrial nuisances could become intolerable by accumulation. One judge rejecting a nuisance complaint “segued seamlessly from the chiming of church bells and the lowing of cattle to the sound of the forge hammer and the whistle of the steam engine. This kind of thinking, which reflected life in an earlier era when a solitary blacksmith would labor at a forge, did not speak to the objective reality of the noise and clamor emitted by the many trains arriving and departing and being switched at urban freight and passenger depots or by the huge banks of forges operating in locomotive factories, steel and iron mills”: Rosen, “‘Knowing’ Industrial Pollution: Nuisance Law and the Power of Tradition in a Time of Rapid Economic Change, 1840–1864,” Environmental History 8 (2003), 580Google Scholar. For an analysis of pollution as an accumulative harm, see Feinberg, Harm to Others, 227–32.

114. For influential discussion of the traditional sic utere tuo principle, see Novak, The People's Welfare, 44–45 and passim.

115. See note 13 and the accompanying text.

116. Years after he left New York, Olmsted wrote pessimistically: “The special perplexity of park business will be understood to lie in the fact that whatever determinations as to use you set out with… you have no assurance in law, custom, or public common sense, that they will not soon be thrown overboard.” “A Consideration of the Justifying Value of a Public Park,” FLOP Supp. I: 332.

117. For example, for sidewalks, see Roulette v. City of Seattle, 97 F. 3d 300 (1996); for train stations, see in re Hoffman, 67 Cal. 2d 845 (1967); for subways, see Young v. New York City Transit Authority, 903 F. 2d 146 (1990); for public libraries, see Brown v. Louisiana, 383 U.S. 131 (1966); and for parks, see Clark v. Community for Creative Non-Violence, 468 US 288 (1984). In each case the appropriate use of some part of the public realm depended partly on the purpose for which it had been created. (The test, as Brown formulated it, was not whether a visitor used a public asset for its intended purpose but whether the use that visitor made of it interfered with that intended purpose.)

118. In Parrillo's terminology, the familiar impositions that governed traditional shared spaces gave way to the alien impositions of the modern public realm (Against the Profit Motive, 24–26). On the regulation of common properties through custom in Anglo-American legal tradition, and the decline of that model by the late nineteenth century, see Rose, Carol, “The Comedy of the Commons,” University of Chicago Law Review 53 (1986): 739CrossRefGoogle Scholar ff.

119. For the transformation of accident law, see, for example, Welke, Barbara Young, Recasting American Liberty: Gender, Race, Law, and the Railroad Revolution, 1865–1920 (New York: Cambridge University Press, 2001)Google Scholar, part I; for environmental law, see, for example, Mendelsohn, Betsey, “Environmental Law,” in Cambridge History of Law in America, vol. 3, eds. Tomlins, Christopher and Grossberg, Michael (Cambridge University Press, 2008), 472521CrossRefGoogle Scholar.

120. See, for example, Bernard Harcourt, “Is Broken Windows Policing Broken?” Legal Affairs Debate Club, October 17, 2005, http://legalaffairs.org/webexclusive/debateclub_brokenwindows1005.msp; Bratton, William. “New York City Police Department's Civil Enforcement of Quality-of-Life Crimes,” Journal of Law and Policy 3 (1995): 450Google Scholar; Kelling, George and Coles, Catherine, Fixing Broken Windows (New York: Touchstone, 1996)Google Scholar, 131; and Zimring, Franklin and Hawkins, Gordon, Crime Is Not the Problem (New York: Oxford University Press, 1997)Google Scholar, 14.

121. For the retrenchment in public space design during the twentieth century, see Cranz, Galen, The Politics of Park Design (Cambridge, MA: MIT Press, 1982), 123–25Google Scholar; for the decline of order maintenance since the end of the nineteenth century, see Monkkonen, Police in Urban America, ch. 2; Wertsch, “The Evolution of the Des Moines Police Department”; and Watts “Police Response to Crime and Disorder in Twentieth-Century St. Louis.”

122. For example, Harcourt, Illusion of Order, 180; Matthews, Roger. “Replacing Broken Windows,” in Issues in Realist Criminology, eds. Matthews, Roger and Young, Jock (London: Sage, 1992)Google Scholar, 37.

123. John Stuart Mill recognized that education and coercion could often serve as substitutes for one another, and that an educative approach made sense when society had an interest in shaping behavior, but the justification for coercion was questionable; see Mill, On Liberty (Indianapolis: Hackett, 1978/1859), 74 ff.

124. Compare, for example, the New York Transit police's “take back the subway” campaign in the 1980s, which relied heavily on public education (Kelling and Coles, Fixing Broken Windows, 125), and the work of the New Haven Police department during the 1990s, which explicitly embraced an educative approach as their first recourse for their order maintenance work (Kelling, Police Discretion and Broken Windows, 50). For criticism of the generally stilted view that prevails today about the order maintenance role, see Skogan, Wesley. “Broken Windows: Why––and How––We Should Take Them Seriously,” Criminology and Public Policy 7 (2008), 195202CrossRefGoogle Scholar.

125. As I discussed earlier, Olmsted and other park officials were certainly cognizant of the need to safeguard the keepers’ legal authority, but the topic appears rarely and as a background consideration rather than a direct preoccupation. Olmsted's most extensive discussion of the tactic of arrest over the years discouraged its use, and insisted that officers should avoid treating the people that they arrested with “indignity”: “General Order,” 291. By contrast, 14 years after Olmsted left park management, reports about the park keepers specified arrest procedures in minute detail, while saying nothing about their educative tasks: DPP, Doc. 116, February 26, 1890. In that respect, they resemble the content of training and policy documents in contemporary police agencies.

126. Compare Braithwaite, John, “What's Wrong with the Sociology of Punishment?” Theoretical Criminology 7 (2003): 528CrossRefGoogle Scholar.

127. Olmsted's most extended discussion of crime control appeared a few months after this event, but even then he insisted that the central focus of the park keepers should be “the prevention of ignorant and inconsiderate misuse of the park” through “education.” If they succeeded in that, he maintained, their more traditional law enforcement duties would fall into place, but if they treated crime control as their primary mission they would inevitably neglect their distinctive task: “Report of the Landscape Architect on the Recent Changes in the Keepers’ Service,” July 8, 1873, FLOP VI: 613–15.

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