Historical Foundations of Private Security
Introduction: The Concepts of Self-Help and Self-Protection
Historically, the concepts of self-help and self-protection were considered foundational to the enforcement of law and the assurance of social order. The private citizen was, by most measures, the chief party responsible for the safety and security of a community. Public law enforcement is a much more novel concept. Whether private or public in design, ideas about policing and protection arise from a variety of influences. Like any other type of institution, its practices and procedures are not fixed in a day but emerge in an evolutionary sense.1 Any clear and accurate assessment of private security or public sector justice need first examine the historical underpinnings.
These principles, derived from English law and the Anglo-Saxon tradition and subsequently adapted to American jurisprudence, provide a panorama for how public and private protection systems not only emerged but legally operate. For example, what were the early parameters for protection of property? The right of self-help was first recognized within the common law and even early codifications of English law. A man’s home was indeed his castle, if he was fortunate enough to possess one. To protect his property and life, a person was entitled to use even deadly force. Early emanations of self-defense and self-protection can be traced to the earliest civilizations. For example, the maintenance of law and order in the Greek and Roman empires was primarily the function of the military and its command structure. Order was maintained in the empire not because of some formal entity, but because the power base was rooted in military authority. “Although the word ‘police’ has a classical origin—the Greek politeuein ‘to act as a citizen of a polis’—the metropolitan police forces we are accustomed to did not exist in the ancient world. A few cities had some form of institutionalized keepers of the peace—‘magistrates of the peace’—but municipal police forces are a nineteenth century phenomenon: the British ‘bobbies’ named for the Prime Minister Robert Peel appear in the 1830s.”2
Upholding the law and the protection of private and communal property was, and is still considered, the responsibility of the individual and the community. The law is most effectively served by those who serve themselves. “An unwritten tenet of democracy places enforcement of the law within the domain of ordinary citizens … under the principles of common law any man still possesses wide authority to protect himself, his family, and to some degree the general peace of the land.”3 Coupled with this reality, in a free and capitalist society, some would argue, are the market forces that dictate what things have value and what needs protection based on that value. To be sure, self-help directly ties its undergirding to a philosophy of ownership and personal protection. In other words, the society’s decision on how to parse up its enforcement model, whether it be public or private in design, is inexorably tied to demand.4
Although self-help in the protection of one’s life and property was socially acceptable, other factors often dictated the practice as the only viable form of law enforcement. For the majority of European and American history, sparsely populated areas, rugged geography, and a strong distrust of any proposed national police organization forced individual citizens and communities to enact and enforce the law through the best available means. Oftentimes, private individuals acting on their own, or at the behest of communal interests, would be forced to take the law into their hands. This was best demonstrated in the tribal “blood feuds” of the Dark Ages. Order and protection was threatened by nomadic bands of rogues and barbarians, territorial fiefdoms, and blood feuds. Anguished communities were held captive by hordes of intruders.5 Primitive justice centered on the retribution of wrongs:
An injury done was primarily the affair of the party injured and of his kindred. It was for him and them to avenge the wrong on the wrongdoer and his kin, and to prosecute a “blood feud” against them until the wrong originally done was wiped out by retaliation.6
Although the self-help protection philosophy gave no clear-cut parameters as to what was fair and equitable justice, the origins of common law did develop from a notion of reasonable, nonlethal force in the protection of one’s property. When criminal action threatened only property, the law did not condone the use of deadly, retaliatory force. The law rightfully considered human life more precious than mere property.7
The issue of self-protection did not, however, exclude the use of deadly force in the protection of life. To be a legitimate use of deadly force, the use of force had to be justifiable and not disproportionate to the force threatened.8 A person, with justifiable cause, could use force in defense of family and self, and also in the defense of others.9 Under the feudal system, the relationship between lord and vassal resembled the present-day system of contract security.
The Middle Ages
Although modern law enforcement, security organizations, and policing/security functions were not initiated during the Middle Ages, an idea of the need and design for law enforcement and security did originate. It is important to understand the chaos and circumstances of medieval England and Europe that led to the establishment of private, self-policing forces. The vassal-lord relationship had developed a reciprocal self-help approach to the security of one’s life and property. Life in feudal times centered on the manors and villages, each responsible for its own protection. Small villages provided their own citizen-police, centering on the ancient “hue and cry” by which the able-bodied men could be summoned to lend assistance when criminal acts occurred or a felon needed to be apprehended.10 This method proved effective, but only within the limited range of the feudal territory or lord’s domain.
With each lord having his own system of security and no codified system of English law, the issue of national or regional security was a muddled mess of self-interests and conflicting jurisdictions. As the small manors of feudalism evolved into towns, villages, and eventually cities, the old system of self-help could not keep up with the rising crime rate.
From 1000 to 1300 A.D., the developmental seeds of an ordered system of law enforcement began in England. The king was able to appoint shire-reeves, who had law enforcement responsibilities in English counties or precincts. “The shire-reeve seems to have developed from the king’s reeve, the local official who looked after the king’s business.”11 He was a royal representative, and it was intended that he would protect the royal interests if they conflicted with the local claims of anyone, including the lord of the county. Above all, the shire-reeve was still the chief officer of the county.12 Within a manor, an appointed officer known as a “constable” was responsible for dealing with legal matters. Both the shire-reeve, later shortened to sheriff, and the constable were the forerunners of modern sworn police officers.
The system of English legal protection continued to expand and define itself more clearly. Under the Statute of Winchester of 1285, a system of “watch and ward” was established to aid constables.13 The watch and ward system was composed of a justice of the peace, a constable, constable’s assistants, and night watchmen whose primary function was the care and tending of a designated area of a town or city known as a “ward.”14 Even today, political subdivisions are often broken down into the ward structure. Regular patrols of citizens were established to stand watch nightly and to arrest criminals and strangers found wandering at night. When an offender was caught in a criminal act, the “hue and cry” was raised.15
It was then the duty of all men in the community, 15 years and older, to rally at the scene and uphold justice. In addition, they were required by law to carry arms and form a posse comitatus to pursue criminals.16 Maintaining the king’s peace and enforcing the law remained a public responsibility.17
Although all men had the general duty and the right to make arrests, the constables and sheriffs had additional specific peacekeeping duties and powers. Unfortunately, the officers were ill equipped to handle the urban growth that created cities with huge populations. Because constables were unpaid, ill trained, and ill equipped, English law enforcement was in dire straits. Lord Chancellor Bacon, in 1618, complained that constables were “of inferior stock, men of base conditions.”18 The towns and cities of England, especially London, fell into virtual anarchy because of the lack and inadequacy of publicly appointed and underpaid professional peacekeepers. Unfortunately the bulk of the watchmen and constables lacked the essential qualities for success.19 In his book, Hue and Cry, Patrick Pringle states:
Such is our respect for institutions that when an established system breaks down we are quick to blame people and defend the system; but the lesson of history seems to be that systems must be made for people, because people cannot be made for systems. To be effective, any system—whether political, religious, economic, or judicial—must expect people to be base and selfish and venal.20
Because of the rising crime rate and the inability of the poorly organized English system of law enforcement to effectively combat it, private persons and businesses developed their own means of protection. As towns and cities expanded, merchants and artisans banded together for mutual protection. In his book On Guard, Milton Lipson relates how:
[g]uild members united to perform the duty of watching their contiguous property in the heart of these medieval towns, serving as watchmen themselves, later assigning their apprentices and thereafter hiring special guards. In these practices are the visible roots of both modern insurance and private security.21
What is clear is that the American foray into law enforcement has not been as clean or transitionally predicable as one might hope and, in fact, can be properly described as a “tangled web of what are typically referred to as public and private police forces.”22
Other forces played into the impetus for a more formal law enforcement system. The expanding trade and transportation of vital goods and services were temptations for criminals. It also demanded the need for protection of private interests, property, and self. From this arose the concepts of proprietary and contract security. Throughout the sixteenth century, different kinds of police agencies were privately formed. Individual merchants hired men to guard their property, and merchant associations created merchant police to guard shops and warehouses.23 The status of these private guards “was by no means uniform; some were sworn in as constables, while others continued in employment as private watchmen or guards. There were also no general scales of payment, rules of conduct, or assigned duties for these newly created private security forces.”24 These areas were solely under the discretion of the employer.
The essence of private security was born in the chaos of the Middle Ages, especially that of the “contract” variety, but the standardization of its organizational hierarchy, duties, and pay was yet to come.25
The influence of the English culture and tradition in America is quite evident in our legal system, and it is especially evident in early colonial law enforcement. Colonial America incorporated the systems of sheriff, constable, and watch as its earliest forms of law enforcement. With subsequent empire building, came further pressure to regularize and formalize the protection system. However, the concept of a uniformed police force was still far in the future. George O’Toole contends in his book, The Private Sector, that
… police, public or private, are not one of America’s oldest traditions: the Republic was nearly 70 years old before the first public force was organized, the infant nation had few laws to enforce, and the protection of life and property was largely a do-it-yourself matter in the tiny wilderness communities that made up the frontier.26
As in medieval England and Europe, population and geographic factors in colonial America favored a loosely structured communal law enforcement system. Generally, the sheriff served in unincorporated areas, the constables served in towns and villages.27 In colonial America, the sheriff was charged with the execution of all warrants directed to him, both civil and criminal. He shared with other peace officers special powers of arrest without warrant, but he did not serve as an important agent in the detection and prevention of crime.28
In 1607, the first constable was appointed in Jamestown, Virginia, becoming the first duly appointed law officer in the New World.29 As in England, the constable’s position was difficult to fill. His duties were many and varied, the pay was minimal, the hours were long, and the prestige associated with the job was low.30 The constable was, however, the main law enforcement officer for the local American government in the 1800s.31
The watch system in America was derived as colonists coming to the New World banded together for mutual safety and business protection.32 The first night watch was formed in Boston in 1634.33 Serving as a watchman was the duty of every male citizen over the age of 18. The tour of duty usually began at 9 or 10 p.m. and ended at sunrise.34 As in the selection of constables, finding men of high caliber to serve watch was difficult. The powers of the night watch were more limited than those of constables, and they had no policing power and limited arrest authority.35
Primarily, the early colonial need for security did not center on proprietary or commercial interests, but on the fear of fire, vagrants, and attacks by the Native Americans. As urban populations grew, the system of sheriffs, constables, and the watch proved inadequate in meeting law enforcement needs. The diversity of the original colonies did not promote any concept of uniform law enforcement practices or a national police. Even with increasing urban congestion and a rising crime rate, little would change in American law enforcement. “Watchmen remained familiar figures and constituted the primary security measures until the establishment of full-time police forces in the mid-1800s.”36 The seemingly unchanging organization of colonial American law enforcement was not so much a sign of social stability, but more likely a wariness of any public or national force controlled by a federal government. “The principle of states’ rights had a profound and continuing impact upon law enforcement.”37 Americans, especially right after the American Revolution, were leery of any federal entity that sought to control and administrate over state and local matters. Law enforcement and security, like other facets of life, were to be controlled by state and local governments, which reflected the “states’ rights” mentality of the age and the supremacy of a decentralized federalism. Although local and state jurisdictions might have felt politically comfortable with the watch system of security, other factors necessitated a change in American security practices. As in England, the old systems of law enforcement became outdated and inadequate in facing the security problems of the growing nation. “The basic deficiencies of the watch and constable systems rendered them ill-prepared to deal with the unrest that occurred in many American cities during the first half of the nineteenth century.”38 New methods of organizing and defining public and private law enforcement were needed to combat urban problems.
Law Enforcement in the Industrial Revolution
The first half of the nineteenth century saw a rise in urbanization, crime, and the need for better law enforcement.39 Private security existed, but only on a small scale for business and merchant protection. Although private police greatly contributed to keeping the peace, it became obvious, particularly in the cities, that a centralized public police department was a necessity. In England, an early version of public policing was affectionately labeled the “Bow Street Runners,” because their activities emanated from London’s Bow Street in Covent Garden. A magistrate’s court would instruct these early “police” types to run after and pursue criminals.
The first legitimate police force would arise in England. The Metropolitan Police Act, passed in 1829 under the sponsorship of Sir Robert Peel, created a carefully selected corps of policemen trained and organized in a military fashion.40 Sir Robert Peel, the oldest son of a wealthy cotton manufacturer, was educated at Harrow and Oxford University.41 Peel’s system, although it “spread slowly and sporadically,”42 became the primary model for efficient urban public policing. Peel, widely known as the “Father of Policing,” recognized the need for a more effective police force to replace the old watch and ward system as well as the limited capabilities of the Bow Street Runners. Peel believed that by organizing a group of professionally trained full-time police officers, he would be able to reduce the level of crime through proactive prevention techniques instead of relying solely on prevention through punishment. To accomplish this evolutionary process, Peel promulgated new rules for police operations, some of which are as follows:
• To seek and to preserve public favor by constantly demonstrating impartial service to law, without regard to the justice or injustices of individual laws, without regard to wealth or social standing; by exercise of courtesy and friendly good humor; and by offering of individual sacrifice in protecting and preserving life.
The Peelian model was extremely influential in nineteenth-century American law enforcement. “The riots of the 1840s provided an impetus for finding a more effective means of dealing with urban unrest.”44