To what extent has the exercise of administrative power been directed during the course of American history toward highly political ends, such as repaying political debts or furthering the particularistic interests of rich or powerful individuals and groups? Even a cursory review of the facts reveals that the administrative process has not always been highly politicized. When the United States became independent some two centuries ago, magistrates generally sought to use their power to further non-political religious and ethical ends in which nearly all their fellow subjects believed. More than a hundred years later, at the close of the nineteenth century, the ideology of administrative decision-making was similarly an apolitical one, in which administrators sought to resolve disputes and decide upon policies by reasoning deductively from abstract, general principles which nearly all of the nation accepted. The administrative process in the late nineteenth century differed from that of the mid-eighteenth not in the degree of politicization, but in the substantive standards from which administrators reasoned: In the mid-eighteenth century, as I have already suggested, the standards were ultimately religious and ethical, whereas by the end of the nineteenth century they had become basically scientistic and utilitarian.

The landmarks of California resource law were laid down within the turbulent context of “the stampede of 1849 and subsequent years.” From all over the world men came to seek fortune in that “glorious country,” fully expecting government “to use its resources positively to enlarge their opportunities.” But federal policy was in a state of flux when gold was discovered on the public domain. Before 1846 mineral lands had been reserved from sale or pre-emption; federal authorities had attempted simultaneously to expedite development and to raise revenue through a complex set of leasing and regulatory arrangements with private firms. Several factors had impeded effective administration of the program, however, and in 1846 lead, copper, and iron lands had become subject to public sale. The discovery of gold in California, then, found the federal government without an applicable policy and “at a loss for knowledge as how to act.” Public sale of gold-bearing tracts was impossible, given the time necessary for survey and classification. A handful of federal officials did submit—and even tried to secretly impose— various plans for reviving some form of federal intervention. But Californians made it clear that they would stubbornly resist any program likely to forestall rapid exploitation of the public domain, and widespread recognition of the difficulties inherent in administering any policy that would conflict with local interests led to congressional unwillingness to take any action until 1866. In the interim, the State of California deemed it advantageous to take the situation “precisely as it finds it…. It looks to the fact that the General Government permits [miners] to trespass on the public domain without complaint … [and] the State is not the steward, nor bailiff, of the General Government, having in charge the protection of the public property.?

American scholarship has lavished most of its attention on appellate courts, paying little attention to courts on the bottom rungs of the ladder. This is true of studies of both past and present courts. But the trial court is the court with the most direct contact with the man in the street, for both civil and criminal matters. Here he meets the law face-to-face. And, although federal courts are certainly important, state trial courts handle by far the larger volume of work.

In order to understand patterns of police behavior in American cities at the turn of the century, it is important to grasp a crucial fact: the police, although they were formally engaged in law enforcement, were little oriented toward legal norms. As late as 1900, when Chicago's police department numbered 3,225 men, there was no organized training. New policemen heard a brief speech from a high-ranking officer, received a hickory club, a whistle, and a key to the call box, and were sent out on the street to work with an experienced officer. Not only were policemen untrained in law, but they operated within a criminal justice system that generally placed little emphasis upon legal procedure. Most of those arrested by the police were tried before local police justices, who rarely had legal training. Those arrested seldom had attorneys, so that no legal defense was made. Thus, there were few mechanisms for introducing legal norms into the street experiences and crime control activities of policemen.