- A Fragmented Force: The Evolution of Federal Law Enforcement in the United States, 1870–1900
Recent scholarship has radically revised our understanding of nineteenth-century American political authority, pointing to ways in which traditional Weberian concepts of the state as a unitary locus of coercion in a territory simply fail to apply in the case of the United States.1 Rather than being housed in autonomous centralized bureaucracies, as they were in much of Europe, state capacity often operated (and continues to operate) through the fragmented nature of American governing institutions. This includes the long-standing collaborative link, for instance, between public authority and private associations aiding in the enforcement and articulation of policy, the multiple and overlapping federal and local institutional domains providing pathways through which those policies could be implemented, and the process of territorial segmentation via Western expansion affording opportunities for state expansion that were precluded in the East.2 Indeed, even the key domain of federal criminal law enforcement in the late nineteenth-century United States—putatively under the control of the relatively small U.S. Marshal’s force—depended to a considerable degree on informal collaboration between public and private actors, including detective agencies and citizens’ groups, who were frequently involved in pursuing and prosecuting federal criminals.3 [End Page 640]
At the same time, these revisionist accounts nevertheless tend to downplay the conditions that allowed pragmatic, collaborative strategies of state building to become the tools of choice for American policy entrepreneurs.4 Indeed, in the case of federal policing, Congress actually made an important attempt at avoiding precisely this kind of fragmentation with the formation of the Department of Justice (DOJ) in 1871. Congressional reformers intended the new agency to coordinate, centralize, and professionalize the enforcement of the new criminal statutes that emerged in the aftermath of the Civil War and Reconstruction and hoped that the formation of an independent department would serve as a check on corruption and inefficiency. This article argues that the failure of this attempt at creating an autonomous bureaucracy actually allowed for the growth of federal policing in the midst of intensive opposition, since agents from throughout the federal government, many of whom were unattached to the unpopular DOJ, began to build alliances across institutional divides inside the central administration as well as with local law officers. In other words, the use of collaboration as a model of state building depended on the foreclosing of an alternative, more professional policing agency.
In particular, two such collaborative practices, derived from traditional policing power of the local government, provided federal actors with a powerful means of directly fusing the enforcement of federal criminal law with local authority: the common-law procedures of citizens’ arrest and deputization (or deputation). These practices, which I explore below, facilitated policing collaboration across the federal administration, allowing the expanded corps of investigators emerging from the Civil War and located throughout the federal bureaucracy to engage directly in arrest in concert with U.S. Deputy Marshals (USDMs). At the same time, they also provided the DOJ with an opportunity to expand its power more directly in the Western territories, where USDMs were able to participate directly in policing with local alliances that were often missing in the Reconstruction South.
These practices help explain why American federal policing was able to thrive in the absence of a central, autonomous bureaucracy in the 1880s and 1890s. Most federal efforts at enforcement during this period, as Gary Gerstle points out, arose from the attempt to link state power to already authorized federal powers of taxation and establishing a postal system.5 Deputation and citizens’ arrest meant that seemingly unrelated developments in U.S. state capacity (such as, for instance, in revenue collection or postal delivery) could [End Page 641] also provide an opportunity for federal policing to expand as well in a manner that was “hidden” from the view of potential opponents.
Moreover, deputation and citizens’ arrest helped preserve the fundamentally local nature of American policing, even as the federal government increased its reach. Indeed, as municipalities and counties began professionalizing their police forces in the 1870s and 1880s, federal authorities were able to participate in arrests...