The Case of Free Roaming PigsIn January of 1819, the New York City district attorney made his case against a man who allowed his pigs to roam the streets of the city, creating a nuisance. Although the attorney called no witnesses, he regaled the jury with horror stories about the problems associated with letting pigs roam the streets of New York. This practice, which was commonly observed in poorer localities, created a nuisance when, for instance, young boys got in trouble for riding the pigs. Sometimes, the pigs would defecate on people. Ladies might come across the disturbing image of two pigs copulating in a public space.
The mayor – then appointed by the city council – sat as judge over the case, and his position was clear. The custom of allowing pigs to roam the streets of New York City needed to end.
The more well-to-do citizens cared little for streets that were full of pigs.
But there were counterarguments. The poor depended on pigs to provide extra calories during the winter, and allowing them to move freely in the city streets served dual purposes. On the one hand, it allowed the pigs to feed and fatten themselves off the refuse they scavenged. On the other, by allowing the pigs to feed off of the excrement and garbage on the streets, they served as a means of keeping the streets clean(er) in the face of a local government that failed to provide sanitation services for poorer areas. Imperfect as this form of sanitation may have been, it was a function that the people valued.
Most importantly, however, is that the practice of letting the pigs roam loose on the city streets was a custom in certain areas. It was seen as the traditional right of the people in these neighborhoods.
The Mayor of New York City in 1819 felt otherwise, though. Sure, it may be the customary practice of certain neighborhoods upheld by local courts, but his jurisdiction was the entire city, and the citizens of the city, in his view, had equal right to all the streets of every locality in New York. It was not within the legitimate authority of the people of a neighborhood to decide what they considered a nuisance. “A nuisance at Corlaer’s Hook may not, of necessity, be a nuisance to the people at the Battery,” read the mayor’s opinion on the case, “but it must be such as that people at large would be offended if they happen to come to the place.”1 All citizens were entitled to equal domain of every locality within the city of New York, regardless of whether or not they lived in the neighborhood in question.
This, however, was not the practice common to the time. The vast majority of legal matters of this nature were extremely localized following the American Revolution. The practice of allowing pigs to freely roam the streets was upheld in the respective neighborhoods that observed the practice, and it was proscribed in others. This seemed to work fine in keeping the “people’s peace,” but it was anathema to the political elites who wished to see the law become an esoteric body of uniform laws that applied blindly to all citizens, irrespective of context or custom. And for this, the city needed a statutory regulation dictating the practice of all the distinct localities within the city. And that’s exactly what the city passed.
The Civil War and the Beginning of Centralization
The great centralizing movement in the American legal system is generally seen to have come as a result of the Civil War, during which, the Lincoln administration concentrated an unprecedented amount of power in the hands of the national government. This analysis is correct, but it overshadows the centralizing movements that preceded it: namely, the move to centralize the legal system from the local, neighborhood level to the city and the state.
Anachronistically, the modern conception of “states’ rights” is seen is a decentralizing reduction of national authority. In the current political climate — and this has been the case now for more than a century — this notion of state’s rights is accurate. The call for “states’ rights” implies the relative increase in the legal authority of a state in relation to the national government, via the reduction of power in Washington, D.C.
But in the early years of the new republic, the pursuit of a state’s rights was quite different. The increase in a state’s authority came not through the reduction of the nearly non-existent federal government, but through vast increases in legal authority of the state government over cities and smaller localities.
In the case of New York City’s pig controversy, the city-wide regulation prohibiting pigs from the streets was never well observed in the neighborhoods that had a long tradition of freely roaming pigs. Thirty years after the city prohibited pigs, a Norwegian traveler visited New York and wrote fondly of “the favored pet of the Americans, the swine” that he saw everywhere, “wandering peacefully in huge herds.”2 The attempts by the city to regulate and prohibit this practice were difficult to enforce and produced unintended consequences (like the rise of “pignapers” who turned in stolen pigs to collect the fines paid by the owners to get them back).
But the city was only authorized to use fines to enforce ordinances; in order to establish any public offices charged with removing pigs, they would need to appeal to the authority of the state. Thus, only a few years after the passage of the original ordinance, a new piece of legislation was drafted and sent to Albany to enact a statewide law that regulated pigs. The goal was uniformity in the law, now moving even beyond the city. In the name of uniformity, legal authority was being centralized.
The pig law is little more than an entertaining example of the process by which the early American states centralized their legal system so that, by the middle of the century, political and legal power had concentrated significantly in the hands of the state legislatures and judicatures.
The motivation to centralize legal authority was entirely political. For the political elites who had usually received a formal legal education, making the law uniformly applicable to all the citizens of a state was a way of making legal matters arcane. This was good for business for a trained lawyer, but it was problematic for the average citizen who increasingly depended on costly legal expertise to handle what should have been minor affairs.
Thin Sheets of Reasoning
The justification for the pursuit of uniformity was legal consistency, and to the modern mind, this seems like an entirely reasonable and pursuit-worthy goal. After all, the concept of the “Rule of Law” is held nearly sacred by people on both sides of the political spectrum. But in the early nineteenth century, consistency was valued less than flexibility in the legal system. When the courts were local, the people of a given community had a vested interest in seeing justice carried out according to the particularities of each individual case, as the people involved were known figures, rather than faceless abstractions in the form of legal theory.
And for those who were not fortunate enough to find themselves at the top of the legal hierarchy – the uneducated, the poor, women, children, and blacks – this flexibility upheld even modern notions of justice – if imperfectly – more effectively than did the centralized and legally consistent courts that followed. To give but one example, when John Belton O’Neall was on trial for beating his wife in South Carolina in the early years of the nineteenth century, his lawyer argued – correctly, according to the legal customs at the time – that a husband had the right to discipline his wife.
The judge disagreed — a ruling that perplexed O’Neall for decades, even as he reflected back on the decision in the 1850’s, after making a career as one of the leading figures in South Carolina’s push for statewide consistency in the law. To O’Neall, the legal arguments he made in defense of his spousal abuse were entirely correct according to customary law, but localized, customary law was inconsistent. It left him far too uncertain of how a given judge might rule on his authority to beat his wife – just as it might produce some neighborhoods in New York that allow pigs to roam freely while others do not. Customary law was flexible, but it wasn’t consistent.
The flexibility of these localized legal systems did not guarantee justice would be done. Just as easily, the judge could have upheld O’Neall’s right to be abusive, or a slave-owner’s right to kill a slave for some infraction, to name another matter of inconsistency in the local courts. But for those who were not part of the political elite, the flexibility of the local courts upheld justice better than the consistency of state legislation. As Laura F. Edwards points out, given the legal ambiguity of a term like “cruelty,” a local jury, by “[e]valuating the evidence in context, where it was impossible to separate the people involved from legal abstractions, the local courts saw cruelty more frequently than the [state] legislature had.”3
In the end, a bit of Freedom was Lost
But the move to centralize the courts won out, and uniform state statutes that gradually did away with notions like “context” and “circumstance” became the norm by 1840. Localism was dying. New, grandiose courthouses were erected, and many citizens could no longer afford to bring grievances to a court that now required time-consuming travel to a city and the costly legal services of a trained lawyer. But with legal authority now concentrated in the state legislature and judicature, the political elite benefited tremendously from the new consistency of the law that (at least in theory) applied equally to all citizens. When the federal government centralized authority in the 1860’s, it was only carrying out the tradition established by the state governments in the first half of the century.
Republished with permission by Mises Institute