Book 1. Chapter the ninth. Of subordinate MAGISTRATES.
This chapter is about the keepers of the king’s peace – sheriffs, under-sheriffs, constables, coroners, bailiffs, and justices of the peace, all of whom “may apprehend all breakers of the peace, and commit them,” (p. 338) i.e., it’s about the police. Reading it, I realized that although I have occasionally heard the police referred to as “peace officers,” I am much more likely to think of them as “law enforcement officers” a term which, with its encapsulated “force,” carries almost the opposite valence of Blackstone’s peacekeepers. Whose description is more clear-eyed, mine or Blackstone’s?
Does Blackstone’s emphasis on government’s peacekeeping function reflect a widely shared sentiment back in 18th-century England, identifying hardworking local constables with social serenity? Or is this Blackstone looking at law’s coercive force through rosy hegemonic glasses, seeing legal peacemaking where some of his contemporaries saw state violence – particularly those from economic classes more likely to end up on the receiving end of the government stick? For that matter, Blackstone’s approach may be an attempt at selling the peacekeeping aspect of government force to an audience more attuned to its violent intrusions. And at one point he does acknowledge that constables “are armed with very large powers, of arresting, and imprisoning, of breaking open houses, and the like.” (p. 344) Interestingly, the last section of this chapter is devoted to the overseers of the poor (pp 347-353), i.e., officials charged with maintaining – and containing – Britain’s indigent citizens, suggesting that then as now government force concentrated on certain sectors of the society perceived as more likely to disrupt the civic peace. My own squeamish ambivalence about government coercion is obviously at least partly class and culture bound. Some of my fellow 21st century Americans are happy to embrace the bond between peacekeeping and force. Up here on the Maine coast, where I am lucky enough to be spending a few weeks this summer, we have an elderly neighbor with a big, black truck. There’s a round decal on the truck’s back door, printed with what looks, from a distance, like a peace sign, but up close you can see that the familiar symbol’s three-pronged fork is actually formed by the body and wings of a fighter jet, and around the edge of the sticker it says “peace the old-fashioned way.”
Blackstone’s official peacekeepers are conceptually central, because “the common law hath ever had a special care and regard for the conservation of the peace; for peace is the very end and foundation of civil society.” (p. 338) But there is little discussion of either peacekeeping or law enforcement in law school today. Modern (and post-modern) literature on government structure makes a sharp division between the government officials who make and administer the law and the ones who enforce it, and the enforcers are marginal if not invisible. If the Commentaries were written today, I doubt you’d see much about government officials whose job it is to actually put their hands on people. Again, the class division is palpable. It reminds me of a commercial that used to run on local television late at night when I was a kid for a truck driving school, the tag line of which was “for the man who likes working with his hands but doesn’t like getting his fingernails dirty.” Peacekeeping can be hard on the manicure.
There’s a kind of Hohfeldian point here. For non-lawyers, Hohfeld was a 19th-century Harvard professor who wrote an essay that every law student still reads at least excerpts from, in which he pointed out the reciprocal nature of legal rights and duties. In other words, my right always corresponds to somebody else’s duty and vice versa. If I’m going to be (legally) privileged to enjoy a quiet cup of coffee alone on my front porch, then someone else – in fact, everyone else – is going to have to be (legally) constrained from disrupting my tranquil morning ritual. There’s a tendency to naturalize privileges. But Hohfeld showed the network of laws that not only protect but construct my quiet morning coffee, and this chapter of Blackstone points out the extent to which that construction depends on government officials who enforce those laws.
Indeed, at another level, the whole thing is a construction. We don’t just need laws, we need law breakers in order to have peace. Hohfeld’s binary conceptualization leaves out the first – or is it the last — step in which our very idea of “peace” becomes a belief in the existence of identifiable peace breakers to be constrained by designated peace keepers. In the United States those roles have long been assigned according to race and class. African Americans of all economic classes are the breakers, white working class men are the keepers, of a civic peace to be fully enjoyed only by white folks from the professional and moneyed classes. Of course people sometimes stray from this type casting. But when they do, they are always suspect. Thus the Obamas’ fist bump was seen by some as a “terrorist” gesture and black undercover cops are liable to be shot by fellow officers who mistake them for perps, while job applications from white men with felony convictions draw a more positive response from prospective employers than resumes sent by black men with no record of criminal conduct.
The society-shaping nature of law enforcement, its tendency to disrupt someone’s peace in order to maintain someone else’s, the race and class politics of those roles – and for that matter, the link between government administration and hands-on law enforcement – were all brought home recently by the dust up between another Harvard professor, Henry Louis Gates, and a police officer who wound up arresting Gates at his Cambridge home. The officer was investigating a neighbor’s report of a man breaking into Gates’s home. That would be Gates, who was apparently trying to force open a jammed door and was already inside by the time the police arrived. Professor Gates, who is African American, was nonplussed to be taken for a burglar in his own house, especially after he produced identification proving that he lived there. According to the police, Gates was arrested for “disorderly conduct” (a charge that was later dropped) because of his belligerent behavior toward the officer; according to Gates he had every right to be thoroughly put out by a white policeman’s refusal to back off and recognize that the black man he was confronting was a rightful peace enjoyer not a trespassing peace breaker.
This already freighted episode took on an additional symbolic load with the personal intervention of President Obama, who is, after all, another African American resident of a hitherto exclusively white neighborhood (namely, the oval office of the aptly named “White House”) and the person ultimately responsible for national law enforcement, aka, peacemaking. Artfully combining the householder/peacemaker aspects of his role, President Obama invited both Gates and the officer over to the White House for a beer. Sweet are the (symbolic) uses of adversity, for with this homely invitation the President managed to establish himself as (an African American) man with a pretty classy house whose idea of quiet enjoyment still includes a brewsky with the (working class white) guys. At the same time, the occasion was an opportunity to model the Obama administration’s commitment to peacemaking a “new fashioned” way, i.e., with diplomatic conversation instead of martial coercion and to transform an official building lately much identified as a headquarters of government coercion both at home and abroad into a place of domestic hospitality presided over by a friendly householder whose very presence there offers new hope for achieving a more universal kind of peace that “is the very end and foundation of civil society.” ( p. 338)