Fire prevention, for the nightwatch, was a critical responsibility. Not only were fires more prevalent at night, but they were also more dangerous, with fewer people abroad to sound a warning. It was the watch’s duty to investigate unusual sources of light or smoke. Officers in colonial Philadelphia had orders to arrest anyone found smoking outdoors, while in Boston, members of the watch were themselves forbidden to “take tobacco” next to any home. More important, if a blaze flared, watchmen were expected to raise an alarm. Only streetwalkers, in cities where prostitution was legal, shared a like charge. Church bells typically contributed to the alarm. After a Stockholm fire in 1504, a bellringer, for his negligence, was ordered to be broken on the rack, until pleas for mercy resulted instead in his beheading. In France, members of the watch had the power to enlist passersby for fire-fighting “without respect,” complained Mercier, “for age or function or insignia.” Any who refused to help were subject to arrest and, if convicted, having their ears cut off.45
Additional tasks occupied watchmen on their rounds, including checking that homeowners locked their doors. “As they pass,” noted a visitor to London, “they give the hours of the night, and with their staves strike at the door of every house.” The sound of knocking awakened Pepys early one morning: “It was the constable and his watch, who had found our backyard door open.”46 So, too, it was the watch’s duty to remain vigilant against potential wrongdoers. In England, watchmen were empowered to arrest nightwalkers on the strength of their own suspicions. That meant the right to apprehend—with at most a general warrant—drunkards, prostitutes, vagrants, and other disorderly persons. A contemporary noted, “If they meet with any persons they suspect of ill designs, quarrelsome people, or lewd women in the streets, they are empowered to carry them before the constable at his watch-house.” There, suspects could either be interrogated by a justice of the peace, if one was available, or jailed overnight until examined the following morning, when often they would be committed to a house of correction. There was ample opportunity for abuse. Respectable pedestrians resented the authority of watchmen, who could sieze “better men than themselves,” as a seventeenth-century writer complained. Worse, at times, was the watch’s treatment of the poor. One night in 1742, drunken constables in London threw twenty-six women, whom they had collected, into a “roundhouse,” with the windows and doors shut. By morning, four had died from asphyxiation. Exclaims the fictional constable in a play by Ned Ward, “I’m monarch of the night, can stop, command, examine, loll in ease, and, like a king, imprison whom I please.”47
In view of the lawlessness afflicting urban centers, one might wonder why authorities did not deploy larger, more professional forces. Besides the heavy cost, within England and America, traditional fears of monarchical power hindered the creation of trained police, lest like a standing army they fall under despotic control. As late as 1790, a Russian visitor reflected, “The English have a dread of a strict constabulary, and prefer to be robbed rather than see sentries and pickets.”48 Among some officials, there also may have been a grudging recognition that night afforded a safety-valve for criminal violence. Better to conceal human vices in darkness than run the risk of daily disorders. Just how shortsighted this belief was would become increasingly clear in many cities and towns; but, for the time being, it may have helped to discourage tougher responses to crime. Most important, the goals of officials in preindustrial towns were confined to curbing misbehavior and preventing fires, mostly by discouraging nocturnal activity. Across Europe, the duty of the watch was “to keep the streets clear of people, that had no real business in them.” Their purpose was not to render nighttime more habitable to pedestrians, other, perhaps, than offering to see them home. And even that service was erratic. Abroad in the dark and “rather afraid,” the Londoner Sylas Neville failed to enlist any of the watchmen whose aid he repeatedly requested. “They declining,” he wrote, “I ventured & got to the inn safe, thank God!”49
All the same, watchmen bore a heavy burden of responsibility. For eight or more hours each night, they alone embodied legal authority in contrast to the network of municipal institutions in daily operation. Except for constables to whom they reported, no other public officials were entrusted with keeping the peace or protecting households from sudden conflagration. “The watch,” declared a Boston resident, “are the greatest safeguard to the town in the night.” If that charge were not burden enough, fatigue, icy weather, and streets strewn with refuse made rounds all the more onerous.50
Initially, within many communities, it was the civic duty of all able-bodied townsmen, from time to time, to donate their services, with little or no compensation. Already in the sixteenth century, however, men of property paid money to local officials with which to hire substitutes instead. Almost everywhere—on both sides of the Atlantic—this pattern seems to have rapidly taken hold. Nonetheless, the wages of watchmen remained meager. Many, by necessity, held daytime jobs. Numerous others, aged or infirm, depended upon alms for alternate income. “Decrepit,” “feeble,” and “worn-out” were among common descriptions. A Norwich court in 1676 attributed frequent fires to a shortage of “sober and substantial inhabitants” among the watch; whereas a London jury acquitted a burglar, for “the matter depending purely upon the watchman’s evidence,” he was thought “old and his sight dark.” At least a few members were adolescents. New York authorities warned against enlisting boys, apprentices, and servants; and Boston selectmen observed in 1662 that “the towne hath beene many times betrusted with a watche consistinge of youths.” Although constables occasionally came from the middling ranks of their communities, most members of the watch belonged to the lower orders—the “very dregs” of the “human race,” claimed a commentator. In Slovakian villages, widows are known to have served.51
It would be difficult to exaggerate the extent of popular contempt for nightwatchmen. Neither their credentials nor their appearance inspired public confidence. These men were not the swashbuckling guards, resplendent in ruffles and silk, portrayed in Rembrandt’s famous painting of Captain Frans Banning Cocq’s militia company, later misnamed The Nightwatch. In the absence of uniforms, watchmen donned tattered hats and either cloaks or heavy coats to guard against the chill night air. Of a London watchman, a writer described, “He was covered with a long sooty garment, that descended to his ankles, and his waste was clasp’d close within a broad leathern girdle.” Sometimes, rags were wrapped like scarves about their heads. English officers were ridiculed for eating onions. These, wrote Thomas Dekker, “they account a medicine against the cold.” Most of all, it was the watch’s conduct that invited derision. They were frequently the butt of playwrights and poets. In Much Ado About Nothing (1600), Shakespeare reflected prevailing prejudices in his portrait of the constable Dogberry. Under his merry command, parish officers turned a willing backside to benches but a blind eye to thieves. “The most peaceable way for you,” instructs Dogberry, “if you do take a thief, is to let him show himself what he is and steal out of your company.”52
Some officers wisely desisted from enforcing unpopular laws at their neighbors’ expense, especially when infractions were minor. Thus the watch in Paris refrained from dispersing late-night revelers at a cabaret for they were “honnêtes gens.” Allegations of corruption were common—not just consorting with prostitutes but taking bribes and colluding with thieves. Citizens of the Swedish market town of Borgerne complained in 1483 that a constable routinely extorted coins at night from small boys and adolescents. A London author wrote of “constables going around their parishes and precincts to the several bawdy-houses to receive sufferance-money.” More often, members of the watch were faulted for negligence—napping, tippling, and shirking their rounds. As proof of their diligence in Geneva, officers were required to drop chestnuts into boxes along the route of their patrols. In England, the “Watch-mens Song” from the mid-seventeenth century lampooned:
Sing and rejoyce, the day i
s gone,
and the wholsome night appears,
In which the constable on throne
of trusty bench, doth with his peeres,
The comely watch-men sound of health,
sleep for the good ot’h Commonwealth.53
Anon., The Midnight Magistrate, eighteenth century. Watchmen as monkeys delivering their charges to the constable at the watch-house.
Small wonder that watchmen, during rounds, suffered verbal and physical abuse. “Fowle words” and “ill language” some nights flowed freely. In Paris, derisory nicknames included savetiers (bunglers) and tristes-à-pattes (flatfeet). Told to return home late one evening, Joseph Phillpot retorted that the “constables of Portsmouth should kiss his arse.” Abuse of parish officers comprised a significant portion of assaults in seventeenth-century Essex, whereas in the Dalmatian port of Dubrovnik, even armed patrols fell prey to violence. In the Danish town of Naestved in 1635, two watchmen fled to the door of the mayor one night, rousing him in his nightshirt, after a troop of journeymen shoemakers, crying “Kill them, kill them,” attacked with knives. Fumed an English critic, “So little terror do our watchmen carry with them, that hardy thieves make a mere jest of ’em.”54
III
The law is not the same at morning and at night.
GEORGE HERBERT, 165155
Night, the French legal scholar Jean Carbonnier mused, probably gave birth to the rule of law. Deeds of darkness, not daylight, spurred early communities to fix sanctions for personal misconduct. All the more ironic, declared Carbonnier, that by the late Middle Ages law at best exerted a faint influence at night. Edicts and ordinances became little more than dead letters. Indeed, until the advent of the Industrial Revolution, evening hours escaped legal oversight in both urban and rural areas—“vide de droit,” in Carbonnier’s elegant words. So frail were institutions and so immense were night’s dangers that authorities abdicated their civic responsibilities.56
Certainly, most courts and tribunals fell silent each evening. Proceedings were barred not just by fatigue and hazardous travel but also by a belief among officials in night’s inviolability. As early as the Twelve Tables, the ancient foundation of Roman law, judges were instructed to render decisions by “the setting of the sun.” And, too, darkness connoted deceit and secrecy. The famous Roman advocate Quintilian observed, “‘With bad intention, then, means something done in treachery, at night, in solitude.” As a guiding precept of Roman law, which experienced a resurgence in the late Middle Ages, the conviction that nighttime fostered duplicity exerted an enduring influence across continental Europe. Some localities prohibited civil transactions after dark; and even when permitted, their validity remained suspect. Contracts, covenants, and codicils all aroused suspicion when executed at night. Beginning in the sixteenth century, pawned goods in sections of Switzerland, according to a regional code, could not be appraised after the “sunshine disappears behind the mountain top.” In some places, the selection of beneficiaries by testators was forbidden, whereas wills themselves could be read only in the presence of “three lights.”57
One suspects that similar attitudes informed English courts, though the common law contained few explicit restrictions. A noteworthy exception concerned the right of landlords to seize the property of tenants for nonpayment of rent. After dark, common law expressly forbade this practice, permitting only the overnight confinement of livestock that strayed from a neighbor’s fields. In addition to customary prejudices against nocturnal transactions, personal dwellings, in the eyes of English courts, constituted protected sanctuaries at night. “Every man by the law hath a special protection in reference to his house and dwelling,” observed Sir Matthew Hale in the History of the Pleas of the Crown (1736). “Every English,” John Adams of Massachusetts proclaimed, “glories justly in that strong protection, that sweet security, that delightful tranquility which the laws have thus secured to him in his own house, especially in the night.”58
Still, Carbonnier’s skepticism about the law’s reach is only partially merited. How greater, by comparison, the compass of criminal justice at night became. Just as evening announced the cessation of civil society, it signaled the increased danger of crime. True, the response of authorities could have been more energetic—employing trained police rather than constables and watchmen with the added responsibility of fire prevention. On the other hand, no officers at all regularly patrolled urban streets by day. Their presence at night represented a singular assertion of government power. Then, too, these “midnight magistrates,” as a critic called constables, possessed considerable legal authority. In England, unlike daytime officers with restricted powers of arrest, watchmen and con-stables enjoyed wide latitude. In the absence of police, inflating their powers offerred a way to compensate for the weaknesses of an amateur constabulary.59
Other steps, too, were taken to stem nocturnal crime. In places that permitted the limited use of torture in criminal interrogations, judges relaxed restrictions for offenses after dark. Within Italy, summary courts arose in the late Middle Ages for the investigation and prosecution of nighttime offenses. Foremost among these tribunals were the Signori di Notte (Guardians of the Night Watch) in Venice and the Ufficiali di Notte. (Officials of the Night) in Florence. Towns in Denmark occasionally granted citizens the right to convene their own courts in order to try offenders at night. Nor were evening executions unknown, sometimes following immediately after convictions in order to quell popular discontent or to underscore the importance of swift justice. In August 1497, for example, five prisoners in Florence were quickly executed after a trial lasting from morning until midnight. Noted the Milanese law professor Polydorus Ripa in 1602, “A punishment is able to be performed even at nighttime if there is danger in delay.” Darkness also magnified the horror of the death penalty. When Dublin fell prey in 1745 to a rash of street robberies, officials hanged seven criminals by torchlight. “The unusual solemnity of such an execution,” a contemporary remarked, “struck such a terror in the minds of the populace” that the number of robberies fell.60
Pierre-Paul Prud’hon, Justice and Divine Vengeance Pursuing Crime, 1808.
More commonly, courts everywhere exacted stiffer punishments for nighttime offenses. If not stipulated by law, this calculation usually occurred in the normal course of deliberations by judges and juries. During the late Middle Ages, numerous nocturnal offenses were punished with added severity. A woman in Siena in 1342, found guilty of an assault, first had her punishment halved because her victim was male, then doubled “because she struck him in his house,” and doubled yet again because the crime took place at night. Such, too, was the predominant pattern in early modern courts, where thefts routinely crammed dockets. “A nighttime thief must be punished more than a daytime one,” wrote Ripa. For thefts committed after the curfew bell, towns in Sweden decreed the death penalty, while in the Sénéchaussée courts of eighteenth-century France, darkness was the most common aggravating circumstance in the sentencing of thieves. Just as bills of indictment in English courts, as a matter of course, specified whether a crime occurred at night, Scottish proceedings pointedly noted offenses committed “under cloud and silence of night.”61
Especially serious was burglary. Under the Tudors, it became one of the first crimes in England removed from the list of those which allowed a felon to escape the death penalty by claiming literacy. In the county of Middlesex during the second half of the 1500s, over four-fifths of convicted burglars were sentenced to hang. Death by hanging or the galleys for life was standard punishment in France. Colonial American assemblies left English law intact, with only slight changes. In Massachusetts, where the Puritans initially proved reluctant to execute property offenders, the government in 1715 declared burglary a capital crime, even for first-time offenders.62
In the view of courts, only one deed, if committed at night, merited lenience: the slaying of a domestic intruder.
Early legal codes from the Twelve Tables to Rothair’s Edict in the mid-seventh century to the Coutumes de Beauvaisis in 1283 recognized this basic principle, as did St. Augustine and English law. What by day constituted homicide, even if the victim were a housebreaker, by night became a justifiable act of self-defense. So in 1743, a Geneva prosecutor declined to charge a peasant for shooting a burglar. Besides citing Mosaic law, the procureur général explained that it had been impossible for the peasant to know at nighttime whether the intruder had theft or murder in mind. “In the day time,” a correspondent to the London Magazine reflected in 1766, “it might possibly be discovered who he [the thief] was, and it might be presumed he intended only to steal not to kill.” “In this case,” the writer explained, “a man should not avenge himself, but have the thief before the magistrate.” But at night, everything was different. The “master of the house could then neither know who he was, nor expect, or have the help of others to secure him.”63
It should not surprise us that procedures and penalties, indeed basic rights and privileges, changed from day to night. The arrival of darkness placed heightened emphasis upon the preservation of public order. A French prosecutor in 1668 bemoaned that two thieves from Lieges were merely sentenced to hang. “Public safety during the night is so important that one would think they would be condemned to the wheel.” Not only did nighttime afford criminals a cloak of secrecy, but it hindered the ability of persons to defend themselves, particularly when home asleep—or to come to the assistance of their neighbors. “Stealing in the night time is certainly ane aggravation of theft,” observed a Scottish prosecutor, “because then people are most unguarded.” In the case of burglary, the availability of moonlight, unlike daylight, did not obviate the terrible nature of the crime, even when an offender’s identity was known. Sir William Blackstone declared in 1769, “The malignity of the offence does not so properly arise from its being done in the dark as at the dead of night, when all creation except beasts of prey are at rest, when sleep has disarmed the owner and rendered his castle defenceless.”64
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