Historian in the cellar.

AuthorFisher, George

I

Get out of the light, Lawrence Friedman has told legions of legal historians, and go down to the cellar. Upstairs you'll find only the history of appellate law. There, in floodlit reading rooms, celestial metaphors take flight--those judicial luminaries and penumbral rights, that omnipresence in the sky. But the law of society--the law as it's lived--is not the law made by common law judges, or even elected lawmakers, who leave their tracks above ground. It is instead the shadow of that law, cast across the streets and shops and tenements of town. The stuff of the law, especially criminal law, concerns those dredged up from the bottom of society. And they leave their tracks in the cellar.

So down he went. A quarter-century ago Lawrence Friedman and his student Robert Percival followed those tracks to the basements of Oakland. In that grubby port town, squatting across the Bay from its shimmering big sister, they started to dig. From precinct to courthouse to prison to press, they unearthed the shards of a whole system of criminal justice. Then they rebuilt it in living detail--the entire anatomy of crime detection and punishment in Alameda County between 1870 and 1910. They called their work The Roots of Justice, for it was in every sense a history from the bottom.

From the bottom, quite literally, it came. The richest among the authors' many sources were the records of the Alameda Superior Court, which moldered away in a basement storage room two floors beneath stately vaulted courtrooms. The basement room was untended, unkempt, alluring in its disarray. Lining its shelves and cramming its drawers were thousands of case records. Within each was a story--a bundle of folded stock, bound with ribbon, hardened with time. Here Friedman and Percival spent long weeks, sometimes searching systematically, sometimes simply browsing--rooting around for justice's roots.

Of course there's no point in rooting around if you can't smell a truffle. In dreary records of rote proceedings, the authors found the mushrooms amid the mold. They uncovered in one old drawer a group of bail bonds dating from 1898 to 1910. In their hands, the forgettable matter of bail cast light on the entire trial process. Defendants held for trial proved almost four times as likely to plead guilty and almost twice as likely to be convicted after trial as those released on bail, suggesting perhaps that defendants with bail money could hire better lawyers or, once released, could better aid their defense. In another drawer they found a report on a judge's probation statistics for 1909 to 1910. Of forty-two defendants granted probation, forty-one had pled guilty--stark evidence that probation had morphed from a reforming regimen for young offenders into a bargaining chip in plea negotiations. Elsewhere the authors found the trial records of Clara Fallmer, a young woman charged with murdering a man who promised her marriage, but abandoned her pregnant. She killed in public view and had no defense at law. But her lawyers outfitted her in a veil and violet bouquet and then rose in defense of injured womanhood, defining a genre in which the law played a small supporting role to the moral drama onstage. (1)

Such flash-lit show trials, in which richly funded lawyers deployed all the stagecraft of justice, defined the third and highest tier of the Alameda County justice system. Yet for every full-dress morality play that drew throngs to one of the oak-paneled courtrooms of the upper tier, dozens or hundreds of unwatched proceedings clotted the lesser courts below. Friedman and Percival broke custom by lingering longer on these lower levels. In the middle tier, they found the routine felony courts, the scene of hasty trials, humdrum pleas, and harsh punishments, where the business of crime control was done. Still lower, in the first tier of the county's justice system, they uncovered the mechanisms of order and discipline. Here police rustled drunks and brawlers and raided brothels and opium dens. (2) And here the authors found the figures who interested them most--those who inhabited the nether regions near justice's roots. This then was the second way in which Roots of Justice was history from the bottom. For here were society's losers, the luckless and landless, social misfits who held neither jobs nor liquor well, caught in the system's gape. (3)

And Roots of Justice was history from the bottom in a third way. Friedman and Percival disavowed all pretense of grand overview: "Our study deals with what is, after all, one remote corner of civilization, a dot of land in the ocean of history." (4) They were working at the foundation level of historiography, contributing one brick among hundreds to the structure of an era. Such scholarly humility at the cost of massive effort deserves notice--yet somehow shuns it.

Here then is an effort to honor a rare great work of legal history. But how can one pay tribute to the humility of history from the bottom? Only one answer came to mind.

I went to Oakland.

II

The Alameda County Courthouse sits at the flat edge of a windswept cityscape. Overly broad streets hint that planners expected a bustling business district choked with traffic. But the businesses never came, so the traffic never followed. Waiting on a corner for the light to halt streams of imaginary cars, a visitor senses he's stumbled onto the abandoned set of War of the Worlds.

The courthouse has the same sense of Soviet overbreadth. Anticipating the era of truck bombs by some sixty years, its Public Works Administration engineers hoisted the whole structure atop a granite pedestal rising a floor above street level. Massive steps face down visitors on three sides, a solid wall on the fourth. Those who venture further find the main entrance locked, its granite portico deserted. In a genuine concession to terror, all visitors are funneled through a narrow side door into the metal detector beyond.

So the lobby comes as a shock--for if PWA had a grand style, this was it. Suddenly the ceiling flares up, and floor-to-sky windows cast glare onto tricolor terrazzo parquetry. Full brass crowns frame the elevators' lapis-blue doors. Their deco exuberance announces that these elevators lead someplace. On either side of the deserted main entrance rises a wall mural in marble mosaic. One mural depicts the missionary settlement of America, the other its secular settlement by explorers and other Europeans. The murals supply a second reason to bar the front doors: locking them against terrorists spared the county an ideological attack on its art.

Slipping through one of the brass and lapis doorways, I dropped to the basement. Here the grandeur is happily gone. Along an empty concrete hallway haloed in fluorescence, only the stylized wall signs hint at the gaudy brilliance above. This, it seemed, is a place an archival digger could love. But where were the records? I had read and heard of their clammy storage room and knew where to look--but it was gone. A door advertises instead the offices of the courtroom interpreters, who appear some years since to have evicted Friedman and Percival's finds.

The records turned out to be close by. They had been moved a flight higher to the office of the criminal court clerk, which abuts the gleaming lobby. I knew Lawrence would disapprove. Today a visiting historian works not alone, but under the clerk's watchful eye; not in dim basement recesses, but in full natural light; and not with century-old paper that stains hands as proof of an honest day's work, but in a medium Lawrence hates--microfilm.

I had come to Oakland hoping to untie one of Friedman and Percival's old case records--to honor their book by continuing their work. Though I missed the chance to unravel old ribbon, I confess relief at finding the records on film. Technology has its virtues, and there's something to be said for push-button copying.

III

I decided to reopen the murder case of H.C. Cull. Friedman and Percival mentioned the case in a brief footnote when surveying the region's violent crime:

Another alleged wife-killer, Hugh Cull (no. 634, 1885), was found not guilty. The main witness was the defendant's seven-year-old daughter; in Superior Court, on defense motion, the judge excluded her testimony. The outrage of disqualifying a seven-year-old who no doubt was competent to relate the horror of her mother's murder caught my eye. As an evidence teacher, I hoped to learn something of old competency notions. But in the end, the Cull case's interesting questions had nothing to do with my fields of study and all to do with Lawrence's. Here as in much of his work, a tale from life exposes the tracks of the law.

The case began in Livermore. There Hugh Cull and his young wife, Jennie, moved with their four children at the beginning of September 1885. (6) We never learn why. Newspaper reports describe Cull as a farmer or rancher and never explain why, at age thirty-eight, this "ruddy and much tanned" man who "looks every inch a rancher" abandoned his ranch and moved his family to town. Nor do they explain why the Culls moved to the particular district called Laddsville. Cull was reportedly "well to do," but Laddsville was not a place for the better sort of people. (7)

Nor was the Culls' new residence an elegant affair. A day after the killing, a prurient news reporter took an unauthorized tour. Aggravating the home's location, which was "gruesome in the extreme," were its placement almost flush with the street and abundant signs of penury. The "one-story cottage of four rooms only" was "covered with worm-eaten paint." Entering the house, the reporter passed into "the sitting-room, so called," where a washstand stood on a threadbare carpet. In one bedroom the three older boys had slept In a second, measuring just ten feet by twelve, the Culls had crammed two beds. (8) One bed slept the parents. The other slept their youngest child, Carrie, who lay awake on the...

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