Cleveland Irish: Shillelagh Law, Part 1

Cleveland Irish: Shillelagh Law, Part 1
by Francis McGarry

“How can you drive on a Silk Road?”  In the days when a teacher had a classroom and students were in it, I taught World History.  The Hammurabi’s Code lecture always had them brimming with scholarly rhapsody. 

Urban Mesopotamians disliked the transhumant herders that were invading their lands.  They called the migrants Amorites, or “foreigners.”  Over time the Mesopotamian Kings re-organized the state and promoted a unified culture. 

Hammurabi was the most famous of the Mesopotamian Kings and a descendent of the Amorites.  He balanced the privileges of the elite with the needs of the lower classes.  Law was used as an arbitrary tool to project equality. 

His code had more than 300 edicts and codified the divine power of the king.  Hey, if it’s your code…  “If a man bring an accusation against a man, and charge him with a (capital) crime, but cannot prove it, he, the accuser, shall be put to death.”  Haters are not going to hate. 

Concurrent to the publishing of Hammurabi’s Code was the transition to a private economy and increase in trade.  Mesopotamian rulers were wise to decrease their hegemonic control of the economy and strengthen their tax revenues. 

This led to a period of relative peace, after the defeat of the Third Dynasty of Ur, and an increase in the arts and culture. The Epic of Gilgamesh was translated from it’s original Sumerian and was used to unify the people.  It is one of the earliest surviving works of literature.  That was 1800 BC in Babylon. 

Bring on the Bronze
Ireland the saw the production of items in bronze and gold. The introduction of metalworking and the late Bronze Age saw a change in the Irish climate, with more precipitation and colder temperatures.  The square mileage of bogs and forested land expanded on the island.

Increased weaponry in the archaeological record included swords, spears, rapiers, knives, dirks and halberds.  The Irish were ready for false accusers in a period described at the “rise of the warriors’ by some archeologists. 

In Ohio, Archaic people practiced hunting and gathering and began to store food.  The most important natural resource was flint mined in present day Coshocton and Licking County.  There was not a political structure in place, but early records tend to indicate that the Eastside of Cleveland was a preferred location. 

It was in the early to mid 19th century that the American political landscape was changing.  More and more landless white men were being given the right to vote and hold office.  The young United States was witnessing the Industrial Revolution and advances in science and technology.

Steamboats traversed the Ohio and Mississippi Rivers, and the Erie Canal opened in 1825. 

The age of the railroad and the swift clipper ship would soon alter Americans understanding of space and time.  In 1844, the telegraph debuted and Americans were connected like never before.   The McCormick reaper appeared in 1831 and the John Deere steel plow in 1837, both contributing to large scale agriculture and the first stage of the market economy.  The National Trades’ Union was founded in 1834 to protect and advocate for the American worker in a transitional economy. 

Here Come the Irish 
The global financial panic of 1837 and the Famine brought millions to America.  The years from 1845 to 1854 witnessed the greatest proportional influx of immigrants in US history, 2.4 million, or about 14.5 percent of the total population in 1845.  This scared the ruling class in America, and they were proactive in their maintenance of their power.

When the Irish arrived, they had the numbers to potentially alter the established order of things.  It is clear the large numbers of immigrants greatly assisted the growth of the American economy and the transition to a market economy.  However, how was the state going to maintain order? 

In the American colonies, religion provided a code and a means to control the populace.  In 1830, the percentage of Americans regularly attending church had doubled since 1800.  Yet, these new immigrants included a vast majority of Irish and German Catholics. 

Might as well try to convert them, a go to in the British playbook.  Didn’t work so well, as the Kensington Riots and the founding of the Catholic schools illustrate.  It did not take long for the Irish to begin to dominate the public school teaching ranks either. 

What the elite did was turn to the law.  Hammurabi had that figured out 4,000 years before.  That did not stop the Protestants from social programs and that prohibition thing.  But the law in America was not what the Irish were used to in Ireland.  In America law could not function as it did in Babylon or with English “hanging judges.”

In the American context, the Irish had too much power, economic and political, for the lack of justice to continue to systematically prevail.  That did not stop the murder of the Molly Maguires, but law had to adapt. 

Clifford Gertz characterized this as the “webs of culture,” a change in one part of the socio-cultural web is felt by the entire web. And change it did. 

The environs of social strife engendered by economic shifts and global and domestic population resettlement during the early and mid 19th century caused elites shrewdly ascertained the potential capability for a systematic pirouette.  Local political and religious institutions had yet to acclimate to the new American reality.  The judiciary evolved as the brokers of the state to promote social order necessary for financial development and individual security. 

No Plea Bargain
In the global history of law, from the time of Hammurabi, there was no plea bargain.  Clemency, yes; but the unique feature of the American courts was the widespread practice of the plea bargain.  Counter-intuitively, the practice recompensed explicitly those charged with offenses. That cooperation functioned in part as the violation of moral laws could result in a public admittance of guilt and brokered penance.  Justice is blind, but the streets have eyes. 

Plea bargaining arose during the 1830s in Boston as part of an American process of political harmonization and an endeavor to legitimize institutions of self-rule vital to the re-amalgamation of political power of the established social and economic aristocracy.  Conflict was for the courts, not the streets. 

Whilst the Irish in America advanced in volume and influence, the legal system witnessed participation by the Irish in all facets of the judiciary.  That included the plea bargain.  In some municipalities, the plea bargain resolved 10-15 percent of all cases in 1830.  In 1880 the same municipalities settled 85-90 percent of their caseload by plea bargain.  Next month we will examine how that was manifest in Cleveland. 

*Francis McGarry holds undergraduate degrees from Indiana University in Anthropology, Education and History and a Masters in Social Science from the University of Chicago.  He is an assistant principal and history teacher.  Francis is a past president of the Irish American Club East Side.  He is the founder and past president of the Bluestone Division of the Ancient Order of Hibernians.   

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