Economic Regulation "Economic regulation" is a hopelessly vague phrase. But we can use it to describe laws that try to set down rules that businesses (or particular kinds of business) have to live by. Nowadays, much of this regulatory work is done by administrative agencies. This was much less so in the past. Enforcement was either through private lawsuits, or through the criminal justice system.

In general, the regulatory arm of government, federal and state, was much shorter (by a country mile) and weaker in the nineteenth century than today. The federal government was especially weak. It was like the brain of a dinosaur: a tiny ganglion, in Washington, D.C., inside a huge and extensive body.

Most regulatory crimes, then, were state or local. Even in the colonial period, there were many of these. The local magistrates, in their little domains, enforced dozens of humdrum but vital rules and regulations. In colonial New York, justices of the peace were responsible for enforcing statutes on the sale of bricks, bar iron, leather, rawhides, flax, and bread; they were in charge of local roads and fences; they could punish people who repacked meat fraudulently, or sold unmerchantable flour, or violated acts about casks, weights, and measures for wine and flour.18 There was pervasive regulation of the growing and marketing of tobacco, for example, in colonial Maryland and Virginia. There was pervasive regulation of the growing and marketing of tobacco, for example, in colonial Maryland and Virginia.19 One aim was quality control, especially of products that were staples, or which were the basis of a rich export trade. In Pennsylvania, under a law of 1725, no flour could be exported unless it was inspected and adjudged good enough to go. One aim was quality control, especially of products that were staples, or which were the basis of a rich export trade. In Pennsylvania, under a law of 1725, no flour could be exported unless it was inspected and adjudged good enough to go.20 There were also colonial fish and game laws; of course, the colonists were not environmentalists like their twentieth-century descendants; but still they realized that not every kind of tree, fish, fowl, and animal was in boundless supply, to be taken, shot, chopped, or destroyed at will. A Virginia law of 1699 made it an offense to shoot deer between February 1 and the last day of July; punishment was a fine of five hundred pounds of tobacco.21 A New York law of 1715 made it unlawful to "gather, Rake, take up, or bring to the Market, any Oysters whatsoever" between May 1 and September 1. A New York law of 1715 made it unlawful to "gather, Rake, take up, or bring to the Market, any Oysters whatsoever" between May 1 and September 1.22 And an interesting Ma.s.sachusetts law of 1675, after reciting that racc.o.o.n fur was very good for making hats, forbade the "exportation" of "Racc.o.o.n furs or skinns ... out of this Jurisdiction"; presumably, all such furs or skins were to be kept at home. And an interesting Ma.s.sachusetts law of 1675, after reciting that racc.o.o.n fur was very good for making hats, forbade the "exportation" of "Racc.o.o.n furs or skinns ... out of this Jurisdiction"; presumably, all such furs or skins were to be kept at home.23 All these general themes could be found in state laws of the nineteenth century-and then some. A visitor from another planet could tell a good deal about the economy of any state, just by reading the words of its regulatory laws. In Mississippi in the 1850s, for example, it was a crime to "fraudulently pack or bale any cotton."24 In Rhode Island, the oyster is an important citizen; state law made it illegal to take any oysters from "free and common oyster fisheries" with "dredges, or with any other instrument ... more destructive to oyster-beds than the usual method of taking them by oyster tongs." There was a commission to keep tabs on private oyster fisheries; still, the legislature saw fit to equip violations of the law (such as "taking and carrying away oysters from any private oyster ground") with criminal sanctions. In Rhode Island, the oyster is an important citizen; state law made it illegal to take any oysters from "free and common oyster fisheries" with "dredges, or with any other instrument ... more destructive to oyster-beds than the usual method of taking them by oyster tongs." There was a commission to keep tabs on private oyster fisheries; still, the legislature saw fit to equip violations of the law (such as "taking and carrying away oysters from any private oyster ground") with criminal sanctions.25 In the Minnesota statute books, there is nothing about oysters; but the laws of 1866 contain elaborate provisions on logging and lumbering; logging companies were to adopt distinctive marks for their logs and record them; and anybody who mutilated or rendered a mark illegible was guilty of a crime. In the Minnesota statute books, there is nothing about oysters; but the laws of 1866 contain elaborate provisions on logging and lumbering; logging companies were to adopt distinctive marks for their logs and record them; and anybody who mutilated or rendered a mark illegible was guilty of a crime.26 There were also many livestock and cattle crimes: butchering unmarked or unbranded animals; putting your brand on someone else's cattle; defacing a brand or mark. It was even a crime to milk someone else's cow. There were also many livestock and cattle crimes: butchering unmarked or unbranded animals; putting your brand on someone else's cattle; defacing a brand or mark. It was even a crime to milk someone else's cow.27 In Maryland, it was a crime to "cut or destroy any tobacco plants belonging to any other person," or to counterfeit "any manifest or note of any inspector of tobacco." In Maryland, it was a crime to "cut or destroy any tobacco plants belonging to any other person," or to counterfeit "any manifest or note of any inspector of tobacco."28 Many people think of the nineteenth century as the age of laissezfaire, a period in which government, on the whole, did rather little, and in which business had a fairly free hand to run its own show. In fact, there was more regulation than one might think, although admittedly it seems ludicrously light, by twentieth-century standards. A lot of the government intervention, besides, was promotional: ways to stimulate economic growth, to get business going, to encourage bridges, ferries, turnpikes, ca.n.a.ls, railroads, banks, and the like; to promote the "release of energy"29 rather than to tie ropes around business in the name of public health, safety, or welfare, or curb economic power before it got totally out of control. rather than to tie ropes around business in the name of public health, safety, or welfare, or curb economic power before it got totally out of control.

Whatever the goals of regulation, criminal justice had a role to play as a soldier in the army of policy. On the statute books of the states, regulatory provisions, trailing along with them some criminal provision, are scattered about the pages. Their number, in the early years of the century, was not great; density increased as the years went on. This was a natural reflex of the increase in the density of economic life, the rise of big business, the explosion of city growth, ma.s.s production, the flowering of industry and commerce.

Any nineteenth-century statute book yields a fair sample of regulatory crimes. The Ohio statutes of 1841, for example, make it a crime to "exercise the trade or occupation of auctioneer" without a license; or to kill a muskrat between May 1 and October 15. An elaborate statute provided for the inspection of casks and barrels of flour, meal, beef, pork, lard and b.u.t.ter, pot and pearl ashes, liquor and linseed oil, among other products; any violation, by a packer or inspector, carried a penalty. Elaborate legal provisions provided for the protection of state ca.n.a.ls: no one was to obstruct a ca.n.a.l or dig a ditch in such a way as to cause "earth, sand, gravel, or other material to be washed into any ca.n.a.l," or "wilfully put ... any dead animal into any ca.n.a.l," among other things.30 Least visible, but no less important, were the countless munic.i.p.al and local ordinances and rules that imposed fines (and sometimes jail sentences) for violations of rules and regulations. State statutes authorized these: for example, Ma.s.sachusetts law (1855) gave the mayor and aldermen of any city, and the selectmen of any town, power to license p.a.w.nbrokers; anyone engaging in this n.o.ble business without a license was liable to a fine.31 Every state had dozens of laws of this type. Every state had dozens of laws of this type.

It is easily to overlook these criminal provisions in the bas.e.m.e.nt of the law-licensing laws; regulations of taverns and the liquor business; rules about sidewalks, buying and selling, and local markets-but they were often quite important in the life of the community. In one small city, Oakland, California, at the end of the century, the book of ordinances covered an astonishing range of topics. There were rules about the use of public s.p.a.ces. There were rules about public health: it was "unlawful for any person to sleep or lodge in any room ... unless said room contains at least five hundred cubic feet of air for each person sleeping or lodging therein." Contagious diseases had to be reported. Property owners were not to permit "any stagnant water or any nauseous or offensive substances" on their property. It was an offense to sell bad meat or "any diluted, impure, adulterated or unwholesome milk." No one was to dare to manufacture pickles in Oakland, except in a small district set aside for this perilous industry.32 There is very little information about enforcement of regulatory laws-at any level. Certainly, enforcement varied from time to time and from place to place. Most of the enforcement was local, most involved city and town ordinances, and most punishments were minor: small fines for obstructing sidewalks, peddling without a license, selling spoiled meat. Few men and women went to prison for regulatory offenses; no doubt a few were scattered among county jails. Embezzlement, forgery, and counterfeiting were more productive. The census of 1880, which reported 57,958 prisoners all told in prisons and jails, listed some 1,500 prisoners sent up for forgery and counterfeiting; 261 embezzlers; and a sprinkling of prisoners convicted of fraud, confidence games, or tax fraud.33 Quality Control This was a cla.s.sic theme of regulatory law: making sure that important goods for export or consumption measured up to standards of quality. Laws to protect the health of animals, for example, were obviously motivated by a desire to protect the domestic economy. The criminal code of Iowa in the 1870s included provisions against "knowingly" importing or driving into Iowa "sheep having any contagious disease," or any "horse, mule, or a.s.s, affected by the diseases known as nasal gleet, glanders, or b.u.t.ton-farcey." Cattle from Texas could not be brought into Iowa unless the cattle had been "wintered at least one winter north of the southern boundary of the state of Missouri or Kansas"; this was to prevent the spread of "Texas fever." It was also an offense to bring in or cultivate "hop roots" that were "diseased ... or infected with lice or vermin"; and anybody who had "Canada thistles" on their lands and let the thistles "blossom or mature" was "guilty of a misdemeanor."34 In 1884, Congress entered the picture; it pa.s.sed a law establishing a Bureau of Animal Industry under the Commissioner of Agriculture; the head of the bureau was to be a veterinarian. No railroad company or boat line was to accept or transport "any live stock affected with any contagious, infectious, or communicable disease, and especially ... pleuro-pneumonia."35 Quality control had become, more and more, a problem that spilled across state lines. No one state had the power to protect itself from infection. This simple fact eventually led to an enormous flow of power to Washington, D.C. Quality control had become, more and more, a problem that spilled across state lines. No one state had the power to protect itself from infection. This simple fact eventually led to an enormous flow of power to Washington, D.C.

Curbing Economic Power The flow of authority to the center was egregiously true of regulation whose point was curbing economic power-another theme that grew stronger in the latter part of the century. This had been a theme in the struggles over bank regulation, and over various issues in corporation law as well. The terms of the debate changed radically in the industrial age, when more and more people left the countryside to work as land-less wage earners in big factories or mines; they were joined in the cities and in the mining and factory towns by hordes of new immigrants from abroad. Big business grew bigger; big fish swallowed little fish; and the result was the formation of huge agglomerations-the hated monopolies or "trusts." John D. Rockefeller's Standard Oil Company was the great exemplar, but there were trusts in cotton oil, sugar, and many other products; and the small merchant and farmer was as terrified and angry as the industrial worker, if not more so.

In the 1880s, there was a burst of legislative activity against these dreaded aggregations. The const.i.tution of Washington State (1889) shouted out bravely that "monopolies and trusts shall never be allowed in this state"; and, more specifically, corporations were not to combine to fix prices or limit output (article 12, sections 18, 22). A Michigan statute of 1889 declared "illegal and void" any agreement or "combination" either to "limit, control, or ... restrict" production of any "article or commodity," or to jack up its price, or in general to "prevent or restrict free compet.i.tion in ... production or sale." Any such agreement was a "criminal conspiracy."36 The North Carolina law "to prohibit trusts," pa.s.sed in the same year, made it a crime for any "merchant, broker, manufacturer or dealer in raw materials" to sell goods (raw or processed) "for less than actual cost for the purpose of breaking down compet.i.tors." The North Carolina law "to prohibit trusts," pa.s.sed in the same year, made it a crime for any "merchant, broker, manufacturer or dealer in raw materials" to sell goods (raw or processed) "for less than actual cost for the purpose of breaking down compet.i.tors."37 What, if anything, these state laws accomplished is hard to say. They hardly laid a finger on the trusts. Some laws were poorly drawn; most were poorly enforced; and, most significant of all, the tentacles of the great trusts twisted and curled across the country, ignoring state boundaries-no North Carolina or Michigan by itself had the power to control them. Only a federal statute could do the trick. The center of attention shifted to Washington, D.C.

The famous Sherman Ant.i.trust Law, pa.s.sed in 1890, was what came out of the agitation; it laid the foundation stone of a whole branch of law (ant.i.trust law). Senator James K. Jones of Arkansas sounded the main theme in debate: federal intervention was an absolute necessity. The miracles of steam and electricity had "well-nigh abolished time and distance"; the genie was out of the bottle, and the states were helpless to control it. The trusts were "commercial monsters," "sharks" that were fattening on the spoils they extracted from the public. If the "iron hand of the law" was not laid on them, and "heavily," the "boasted liberty of the citizen [would become a] myth."38 Only power, in other words, could fight (excessive) power; power that spanned the continent required countervailing force that also spanned the continent; and only criminal criminal law could engage the full force of national will and national muscle. The Sherman Act was the result of this conjunction of att.i.tudes. It is still in force today. The Sherman Act was (and is) in form a criminal statute. law could engage the full force of national will and national muscle. The Sherman Act was the result of this conjunction of att.i.tudes. It is still in force today. The Sherman Act was (and is) in form a criminal statute.39 It declared "illegal" any "contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce"; every person who "monopolized" or combined or conspired to monopolize "any part of the trade or commerce among the several States" was guilty of a misdemeanor. It declared "illegal" any "contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce"; every person who "monopolized" or combined or conspired to monopolize "any part of the trade or commerce among the several States" was guilty of a misdemeanor.

For a law so famous and so important, the Sherman Act was surprisingly brief: less than two pages of text in the Statutes at Large Statutes at Large. It was also exceedingly terse, not to say vague and ambiguous. Nowhere in the act was there any definition of key terms; "monopoly" and "restraint of trade" were left unexplained. The act set up no mechanism of enforcement-no administrative agency, no machinery at all. It was left to whatever energy the attorney general and his small staff might muster. The early years of enforcement were, to say the least, somewhat fitful and halfhearted; at the turn of the century there was little to show for all the fanfare and hooplah.40 The courts were lukewarm themselves. A district judge in the Midwest, for example, smothered an indictment against lumber dealers who had conspired to raise lumber prices; and an attack on the cash register industry was also a failure. The courts were lukewarm themselves. A district judge in the Midwest, for example, smothered an indictment against lumber dealers who had conspired to raise lumber prices; and an attack on the cash register industry was also a failure.41 The Supreme Court delivered some serious setbacks to enforcements. One of the worst monopolies was the sugar trust; the American Sugar Refining Company dominated the business and was moving to absorb the last few independent sugar refiners. But the government's lawsuit, U.S. v. E. C. Knight Co U.S. v. E. C. Knight Co. went down in flames.42 This was a monopoly of "manufacture," and not of "commerce" said the Court; and the Sherman Act had nothing to do with making, only with trading and selling. In later cases, the Court showed more gumption; but on the whole, the Sherman Act's potential for trust-busting was still only a promise in 1900. This was a monopoly of "manufacture," and not of "commerce" said the Court; and the Sherman Act had nothing to do with making, only with trading and selling. In later cases, the Court showed more gumption; but on the whole, the Sherman Act's potential for trust-busting was still only a promise in 1900.

It is easy to be cynical about this whole exercise in prosecuting big business. Much of it was smoke and mirrors, or public relations. The public had been saying, in effect, do do something. Congress did something: it pa.s.sed a law. So, too, did the states. Two-thirds of them had little "Sherman Acts," or other ant.i.trust laws, by 1900. For obvious reasons, the state laws were largely symbolic. The federal act itself something. Congress did something: it pa.s.sed a law. So, too, did the states. Two-thirds of them had little "Sherman Acts," or other ant.i.trust laws, by 1900. For obvious reasons, the state laws were largely symbolic. The federal act itself was was a promise, a hope, a statement of policy, and not much more. The net results were, almost certainly, microscopic. Ironically, ant.i.trust law a promise, a hope, a statement of policy, and not much more. The net results were, almost certainly, microscopic. Ironically, ant.i.trust law was was used as a weapon against labor unions and as a strikebreaking tool; in 1894, Eugene V. Debs felt its lash in the midst of a railroad strike. used as a weapon against labor unions and as a strikebreaking tool; in 1894, Eugene V. Debs felt its lash in the midst of a railroad strike.43 This was surely not what the clamoring citizens and small shopkeepers had in mind; but the This was surely not what the clamoring citizens and small shopkeepers had in mind; but the judges judges had it in mind, and big business, too; and this is what counted at the time. had it in mind, and big business, too; and this is what counted at the time.

Corporate Crime At one time, there had been technical doubts about whether the state could indict a corporation at all. Could an "artificial being," a corporation, commit a crime? By mid-century, the legal consensus was yes. Joel Bishop, who wrote a leading treatise on criminal law, could see "No reason ... why a corporation, having by law the power to act, should not also have by law the power to intend to act; and mere intentional wrong acting ... is all which is necessary in a cla.s.s of criminal cases."44 This was, of course, not an academic question; at least not totally. Major regulatory laws applied to corporations and other business a.s.sociations, sometimes explicitly. To pick one example, an Illinois law of 1891 made it "unlawful for any person, company, corporation or a.s.sociation" in the "mining or manufacturing business" to run a company store; another act required companies in the manufacturing, mining, "mercantile," utility, express, or water business to pay wages every week. By its very terms, this was a law for corporations only.45 A contemporary Kansas law specified that all "private corporations doing business within this state ... shall pay ... wages earned each and every week in lawful money ... not later than Friday of each week for all such wages earned the preceding week." "Steam surface railways" and corporations producing "farm and dairy products" were exempted. A contemporary Kansas law specified that all "private corporations doing business within this state ... shall pay ... wages earned each and every week in lawful money ... not later than Friday of each week for all such wages earned the preceding week." "Steam surface railways" and corporations producing "farm and dairy products" were exempted.46 Bishop had spoken about "intentional wrong acting." But in some regulatory laws, intention was not particularly important, or not important at all. In one Ma.s.sachusetts case, in 1875, a statute made it a crime to "sell, or keep, or offer for sale, naphtha, under any a.s.sumed name."47 Wentworth, the defendant, claimed he had no idea the stuff he sold was actually naphtha. No matter, said the court: "guilty knowledge" was not essential to the offense. "It is like the statutes against the sale of intoxicating liquors, or adulterated milk, and many other police regulations: it prohibits the acts of selling ... naphtha ... not because of their moral turpitude, or the criminal intent ... but because they are dangerous to the public." Obviously, then, it was unimportant what Wentworth thought, or knew. He was guilty all the same. Wentworth, the defendant, claimed he had no idea the stuff he sold was actually naphtha. No matter, said the court: "guilty knowledge" was not essential to the offense. "It is like the statutes against the sale of intoxicating liquors, or adulterated milk, and many other police regulations: it prohibits the acts of selling ... naphtha ... not because of their moral turpitude, or the criminal intent ... but because they are dangerous to the public." Obviously, then, it was unimportant what Wentworth thought, or knew. He was guilty all the same.

A case like this underscores what is distinctive about some some regulatory crimes. They are not crimes at all, in the popular sense of dreadful, blameworthy deeds. Criminal justice here is merely a kind of unspecialized, all-purpose agency for carrying out regulations. Acts were cla.s.sified as "crimes" so that authorities could enforce laws against them, at their leisure, and at their expense, without waiting for some aggrieved individual to sue. regulatory crimes. They are not crimes at all, in the popular sense of dreadful, blameworthy deeds. Criminal justice here is merely a kind of unspecialized, all-purpose agency for carrying out regulations. Acts were cla.s.sified as "crimes" so that authorities could enforce laws against them, at their leisure, and at their expense, without waiting for some aggrieved individual to sue.

The Public Health Not all regulatory "crimes" have this neutral, bureaucratic flavor. One aim of economic law is to protect the public health. This was a motive, no doubt, in the background of the naphtha law. In general, any act "calculated to impair the public health" was at least potentially a crime.48 And health offenses, if they were grievous enough, could easily cross the line into the domain of the truly blameworthy. And health offenses, if they were grievous enough, could easily cross the line into the domain of the truly blameworthy.

Health legislation did not make much of a mark in the first half of the nineteenth century. Quarantine laws, however, were common. If (under Virginia law) a ship should arrive in port "foul or infected" so as to "endanger the public health," it could be put under quarantine; a captain who hid information about "dangerous infectious disease" on shipboard or at a port of call, or who failed to "repair in proper time" to the "quarantine ground," or who left without authority, was liable to pay a fine.49 Other health hazards were handled under nuisance law. In a Kentucky case of 1866, one Ashbrook was indicted for "keeping a common nuisance" in the city of Covington; the nuisance consisted of "sundry pens," in which he housed horses, mules, cattle, sheep, and hogs; these creatures of G.o.d produced "filthy excrements" and "unhealthy and pernicious smells," which "greatly corrupted and infected" the air. Ashbrook had kept, he said, animals in such pens for thirty years. But this was no excuse. A lot had happened in thirty years. Covington had grown from a village of "about five hundred souls" to a population of twenty thousand, and this kind of urban growth turned a lawful business into an unlawful nuisance. Other health hazards were handled under nuisance law. In a Kentucky case of 1866, one Ashbrook was indicted for "keeping a common nuisance" in the city of Covington; the nuisance consisted of "sundry pens," in which he housed horses, mules, cattle, sheep, and hogs; these creatures of G.o.d produced "filthy excrements" and "unhealthy and pernicious smells," which "greatly corrupted and infected" the air. Ashbrook had kept, he said, animals in such pens for thirty years. But this was no excuse. A lot had happened in thirty years. Covington had grown from a village of "about five hundred souls" to a population of twenty thousand, and this kind of urban growth turned a lawful business into an unlawful nuisance.50 Covington's growth was nothing compared to that of New York, Chicago, Cincinnati, St. Louis, and other cities. Filthy tenements, smoke, crowded streets, and tons of horse droppings made cities pestilent and unhealthy. The march of science changed att.i.tudes toward disease. It was no longer punishment for sin, or a mysterious scourge beyond explanation; disease was something concrete; it was carried in water or in dirt; it was a product of "germs"; and there were concrete steps that could be taken to alleviate or prevent it. These, more and more, came to be seen as collective collective steps. There were, by the end of the century, boards of health at the state, city, and county levels, issuing rules and enforcing ordinances. steps. There were, by the end of the century, boards of health at the state, city, and county levels, issuing rules and enforcing ordinances.51 Criminal statutes relating to health were a miscellaneous lot. Some were simply reporting laws; doctors had a duty to tell local boards of health about a whole raft of contagious diseases. Doctors (and midwives) in New Jersey (1895), for example, had to report any newborns with swollen, inflamed, or reddened eyes.52 Another group of laws regulated foods and drugs, either as to their ingredients or to their labeling. The same session of the New Jersey legislature just mentioned (1895) outlawed the sale of candy "adulterated by the admixture of terra alba, barytes, talc, or other mineral substance," or by "poisonous colors, flavors, fusil oil, intoxicants or other ingredients deleterious or detrimental to health." Another law made it unlawful to sell cakes or biscuits containing "yolka, yolkaline, turmeric, chrome yellow or any other subst.i.tute for eggs," unless the label said so. Another group of laws regulated foods and drugs, either as to their ingredients or to their labeling. The same session of the New Jersey legislature just mentioned (1895) outlawed the sale of candy "adulterated by the admixture of terra alba, barytes, talc, or other mineral substance," or by "poisonous colors, flavors, fusil oil, intoxicants or other ingredients deleterious or detrimental to health." Another law made it unlawful to sell cakes or biscuits containing "yolka, yolkaline, turmeric, chrome yellow or any other subst.i.tute for eggs," unless the label said so.53 Labor and Management: The Conditions of Labor Public health was also often used as an excuse for regulation (in the struggle over oleomargarine, for example). This was egregiously true in the struggle between capital and labor. What workers wanted, after all, was more money and better conditions of labor. It is hard to draw the line between a pure "labor" law and a law about the health and safety of workers-if, indeed, there is any sense to drawing a line at all. Legally, however, there was a great difference: the state had plenary power to ensure public health and safety; but business vigorously denied the state's power to intervene in strictly economic disputes-and "redistribution of income" was a dirty phrase.54 Many states responded to pressure from organized labor by imposing duties on employers-to pay workmen in cash, for example, or at frequent intervals; or by outlawing company stores. We have already seen examples of these late nineteenth-century statutes. These were, as usual, criminal statutes in form-that is, they carried with them some sort of criminal penalty for violation, like a thorn on a rosebush.

The late nineteenth century was also the age of judicial review; the courts were flexing their muscles as never before. Some of the most famous court battles of this period turned on the validity of labor laws. In a few rather spectacular cases, courts struck down labor laws as unconst.i.tutional. In New York, the state had prohibited the "manufacture of cigars and preparation of tobacco ... in tenement-houses." The Court of Appeals, the highest court in New York, declared this statute void in 1885.55 In California, a statute required employers to pay workers at least once a month. A quartz mine company appealed a conviction under the statute; the Supreme Court of California struck down the law in 1899. Such a law, the court said gravely, treats the intelligent workman as an "imbecile"; it takes away his "right" to make labor contracts for himself. In California, a statute required employers to pay workers at least once a month. A quartz mine company appealed a conviction under the statute; the Supreme Court of California struck down the law in 1899. Such a law, the court said gravely, treats the intelligent workman as an "imbecile"; it takes away his "right" to make labor contracts for himself.56 It was this sort of att.i.tude that encouraged legislatures to disguise labor laws as health laws, in the hope that courts would uphold them on that basis. The ma.s.sive Illinois act on factories and workshops, pa.s.sed in 1893, outlawed the manufacture of clothing (including "coats, vests, trousers, knee-pants, overalls, cloaks, shirts, ladies' waists"), purses, feathers, artificial flowers, or cigars, in any "tenement or dwelling house used for eating or sleeping purposes," except by the "immediate members of the family" who lived there. Factory inspectors would visit workshops to see that they were "in a cleanly condition and free from vermin and any matter of an infectious and contagious nature." No child under fourteen was to work in any factory; a child worker under sixteen needed an affidavit from parents or guardians. No "female" was to be "employed in any factory or workshop more than eight hours in any one day or forty-eight hours in any one week."57 But the statute was doomed. The Supreme Court of Illinois, in a strong if retrograde opinion, struck it down. It interfered with freedom of contract: "Labor is property, and the laborer has the same right to sell his labor, and to contract with reference thereto, as has any other property owner."58 The law impaired this right, and the court could see no justification strong enough to balance the harm to the market. All phrased very logically and law-like, yet a product of conventional biases and att.i.tudes nonetheless. The upper middle cla.s.s-the judges, very notably-were afraid of the power of ma.s.sed workers; afraid, too, that legislators, who needed votes, would cave in to demands that would harm society and its economic structure. The law impaired this right, and the court could see no justification strong enough to balance the harm to the market. All phrased very logically and law-like, yet a product of conventional biases and att.i.tudes nonetheless. The upper middle cla.s.s-the judges, very notably-were afraid of the power of ma.s.sed workers; afraid, too, that legislators, who needed votes, would cave in to demands that would harm society and its economic structure.

The usual view of the period, which seems quite plausible, is that courts were reactionary, legislatures more progressive. But this may be something of a distortion. Many labor laws were never tested in court at all; most of those that were, pa.s.sed the test with flying colors. Nor were legislatures quite so "progressive" as they seemed on the surface. Legislatures rarely pa.s.sed laws that seriously changed the balance of power, or redistributed income. A criminal law is cheap to pa.s.s, requires no tax money or civil servants, and pa.s.ses the buck to local enforcement officials. Not all labor laws, of course, were of this kind; some laws established commissions, agencies, authorities, to carry out the work. But there were enough pure criminal laws to make us cautious in our general a.s.sessment of the impact of legislative intervention.

Rules of the Road In this chapter, we have looked at rules of criminal justice as price-setting rules. Another way to put it is to think of these rules as devices that ration or control the supply of certain behaviors-through rewards and punishments, of course. Sometimes the system rations goods and services quite literally. During the Second World War, wages and prices were frozen and ration tickets issued for gasoline and sugar. Violation of regulations was a criminal offense.

Other legal rules ration in a less literal way. Probably no branch of law is bigger today and touches the lives of more people than traffic law; a traffic offense is the only "crime" the average person is likely to be convicted of during his or her lifetime.x Traffic law is bulky and ubiquitous because traffic is bulky and ubiquitous; there are millions of cars, buses, and taxis on the road, and millions of drivers. Road s.p.a.ce is a scarce commodity, especially in the cities. Clearly, if everybody drove as fast as they wanted, when they wanted, where they wanted, without regulation, the results would be total chaos. It is nearly that as it is. Traffic law is bulky and ubiquitous because traffic is bulky and ubiquitous; there are millions of cars, buses, and taxis on the road, and millions of drivers. Road s.p.a.ce is a scarce commodity, especially in the cities. Clearly, if everybody drove as fast as they wanted, when they wanted, where they wanted, without regulation, the results would be total chaos. It is nearly that as it is.

s.p.a.ce, then, has to be rationed; it can't be treated as a free good, which everybody can grab for herself, first-come, first-served, like a park bench or s.p.a.ce on the gra.s.s in the town square. The law is the instrument that carries out this rationing. Even in the nineteenth century there were rudimentary rules of the road; drivers of "carriages, sleighs, or sleds," as a New Jersey statute put it, had to "keep to the right," when they met another vehicle, and if "overtaken," the other vehicle must be allowed to pa.s.s "free and uninterrupted."59 In Nebraska, a carriage owner could be fined if he hired a drunkard as a driver; no one was to ride or drive over a bridge "faster than a walk." In Nebraska, a carriage owner could be fined if he hired a drunkard as a driver; no one was to ride or drive over a bridge "faster than a walk."60 Conservation laws are rationing laws as well. The preservation of wilderness is a distinctly modern goal. But the general idea of conservation goes back a stretch in time; we cited a Rhode Island statute on oysters, for example. As early as the colonial period, as we saw, there were restrictive fish and game laws. Every state in the nineteenth century had its own version. These laws, in general, were economic in the most baldly literal sense. They tried to protect a valuable commodity. At first, they carried out the dominant theme of economic development. Hardly anybody worried about "endangered species"; there was much more concern about endangering endangering species. The New Hampshire statutes in 1851, which made it an offense to shoot or trap beaver, mink, otter, or muskrats between May 30 and November 1, also offered cash bounties for the killing of wolves, bear, or "any wildcat known by the name of Siberian lynx." species. The New Hampshire statutes in 1851, which made it an offense to shoot or trap beaver, mink, otter, or muskrats between May 30 and November 1, also offered cash bounties for the killing of wolves, bear, or "any wildcat known by the name of Siberian lynx."61 Fish and game laws were recognitions, at least, that animal life was not without limit. A few laws also recognized that clear air and water, and an endless sky, could not be taken for granted any more than the supply of muskrats. Nuisance law, in cities, had something of this flavor. A New Jersey law of 1884 outlawed the "discharge ... of such refuse or residuum, resulting from the refining of petroleum, as is commonly called 'sludge acid,' into or upon any river, stream, ... pond or other body of water."62 But these were still exceptional noises in a general symphony of growth and expansion. But these were still exceptional noises in a general symphony of growth and expansion.

Gradually, however, the conservation tones got louder. A sense of contraction, of limits, translated itself into positive rules. A Nebraska statute, for example, late in the century, made it unlawful to kill (except on one's own land) "any robin, lark, thrush, blue bird, king bird, sparrow, wren, jay, swallow, turtle dove, oriole, wood-p.e.c.k.e.r, yellow-hammer, cuckoo, yellow bird, bobolink, or other bird or birds of like nature": these birds, to be sure, "promote agriculture or horticulture by feeding on noxious worms and insects," but they are also "attractive in appearance or cheerful in song."63 The fish and game laws-laws about what and where to hunt, when to hunt, how much to hunt-became more and more elaborate. The fish and game laws-laws about what and where to hunt, when to hunt, how much to hunt-became more and more elaborate.

People came to feel, in other words, that horizons were not unlimited, resources not infinite. This was true in the crowded, urban East, but also in the empty, rural West. In Wyoming, by 1899, the "wanton destruction or the wasting of the game and fish of this state" was declared a misdemeanor. There were limits on game birds, ducks, geese, swans, deer, elk, mountain sheep, mountain goats, and beaver. No moose was to be killed until September 1902; and then only one male moose to a customer, and only during the season. And, most dramatically of all, there was a total ban on killing the buffalo; violation of this provision was a felony.64 At one time there had been herds of these animals that seemed endless; and they were killed for their tongues, or for no reason at all. At one time there had been herds of these animals that seemed endless; and they were killed for their tongues, or for no reason at all.

6.

MORALS, MORALITY, AND CRIMINAL JUSTICE.

CHAPTER 5 EXPLORED THE ECONOMIC FACE OF CRIMINAL JUSTICE,. THIS CHAPTER looks at its other face, the moralistic face. Whatever else it does, the criminal code reflects, though perhaps at times as crudely as a funhouse mirror, some notion of the moral sense of the community-or, to be more accurate, the moral sense of the people who count, and who speak out, in the community. It never expressed, for example, the moral sense of slaves, and deliberately so; nor did it express, in any systematic way, the moral sense of women, except as refracted through the men in their lives.

In the previous chapter we said that all criminal law is economic, in some regard. But all criminal law is also moral law, again in some regard; every line in the penal code tags some behavior as wrong-either deeply and inherently wrong, or wrong because of its consequences. As we have seen, jurists once drew a distinction between crimes mala in se mala in se (evil in themselves) and crimes that are (evil in themselves) and crimes that are mala mala prohibita prohibita (evil only when we say they are, when we stick on a criminal label). Murder would be (evil only when we say they are, when we stick on a criminal label). Murder would be malum in se malum in se; most regulatory offenses, mala prohibita. mala prohibita.

This is a shaky distinction, both historically and culturally. As we have said, ideas about what is right and wrong ebb and flow, in s.p.a.ce and time; what is heinous in one period is shrugged off in another, or even lauded to the skies. In any particular community, however, the distinction has some meaning. To members of the community, some acts seem incomparably bad, some not so bad; some seem to ooze out from some darker, more primitive source of bone-deep, inescapable evil.

But "enforcement of morality" does not, on the whole, refer to the war against rape, murder, arson, and deadly a.s.sault. These are, of course, immoral acts; but "moral crimes" is used here and in the literature in a more restricted sense. It is one of three big, time-wom categories. (The other two are crimes against the person and crimes against property.)y Adultery fits in one box; a.s.sault with a deadly weapon in another; larceny and shoplifting in a third. Of course, in an important sense all of these are equally crimes "against persons"; and all, too, are crimes against morality. Adultery fits in one box; a.s.sault with a deadly weapon in another; larceny and shoplifting in a third. Of course, in an important sense all of these are equally crimes "against persons"; and all, too, are crimes against morality.

It is not easy to corral in words what sets "crimes against morality" apart from other kinds of crime. The usual cla.s.sification, weak as it is, does ask in a rough way some relevant questions: Who or what or which interests were hurt by whatever it was that the criminal did? Many crimes against morality are so-called "victimless crimes," that is, crimes about which n.o.body complains, or in which (arguably) n.o.body has been hurt. The crime, rather, damages us generally, rips the social fabric, or offends "public decency and order"-that is, Society with a capital S. Fornication was a good example; also sodomy, gambling, and drunkenness, public or private. Most of these acts, one notes, are behaviors of pleasure or leisure. People do not drink whiskey for a living. They do not (as a rule) fornicate for money. Rather, they do it because they like it, or want it, or can't help it.

These are offenses, then, against the "moral sense of the community," with or without an identifiable "victim," that is, somebody who feels hurt, or violated, or cheated in some way. But the "moral sense of the community" is a slippery and complex idea. As we have said, it is not everybody's moral sense; in our history (and this is more or less true everywhere), it is the moral sense of the people who count, the respectable middle and upper cla.s.ses. Even so, it is not easy to measure or to sniff it out. Sometimes the penal code is the best evidence of what that moral sense might be; but of course that traps us in a circle. Moreover, people often say one thing and do another; the laws against morality certainly represent values people think they ought ought to have, but not at all necessarily what they (secretly) think or want. to have, but not at all necessarily what they (secretly) think or want.

And of course these values and ideas change over time. The ideas in people's head reflect their experiences; and their experiences are distinctly time-bound and culture-bound. The moral sense of the tight, devout Puritan communities was in severe decay in the republican period. What shattered it, above all, was social and geographic mobility; the abundance of land, the rampant immigration, and the heady experiences of self-government fed this mobility. How these factors affected "crimes against morality" is the theme of this chapter.

The Victorian Compromise One major way in which the law about morals crimes changed is that it lost something of its absolutist nature. This calls for a word of explanation. Moral crimes, like crimes in general, come in two forms, which, for want of a better way to put it, we might call the truly evil and the not quite so bad (or, bad in some but not all circ.u.mstances). State laws, for example, simply outlawed sodomy, which the codes described as totally evil, even unspeakable. Other moral prohibitions were more modulated. Take, for example, Sunday laws. Ohio law in 1831 did not allow anyone above the age of fourteen to engage in "sporting, rioting, quarreling, hunting, fishing, shooting, or ... at common labor" on Sunday, except for "works of necessity and charity." It was also an offense for a tavemkeeper to sell liquor on Sunday, except to travelers.1 If it is an offense to fish on Sunday, or to sell liquor (or drink it, one supposes), it is hard to see why there should be any exceptions (say, for a thirteen-year-old, or for a traveler). The goal of the law, obviously, is not to stamp out all fishing on the sabbath, but to encourage a quiet, pious Sunday. It is a law, in other words, not about private sin, but about public surface and public order. Behind it lies a muddled but powerful theory of social control: a decent official official moral framework is terribly important, not only to teach a lesson but also as a way of limiting bad behavior. Some bad acts, though they are going to happen anyway, get driven underground. This means there is less of them; and the bad behavior does not threaten the general fabric of society. Vice and crime stay in their place. We can call this arrangement, this double standard, the Victorian compromise. moral framework is terribly important, not only to teach a lesson but also as a way of limiting bad behavior. Some bad acts, though they are going to happen anyway, get driven underground. This means there is less of them; and the bad behavior does not threaten the general fabric of society. Vice and crime stay in their place. We can call this arrangement, this double standard, the Victorian compromise.2 It appeared strongest, and most obviously, in the law relating to s.e.xual behavior, to which we now turn. It appeared strongest, and most obviously, in the law relating to s.e.xual behavior, to which we now turn.

Control of s.e.xual Behavior On the surface, the republican period carried on a rich, colonial tradition, committed to s.e.xual control (or, more accurately, repression). There was no abrupt break with the past. By law, only married people were ent.i.tled to any kind of s.e.x life at all, and only within narrow limits. Everything else was not only a sin, it was a crime. The laws of Maine from around the middle of the nineteenth century were fairly typical.3 Adultery was a crime, as were fornication, incest, and (of course) "the detestable crime against nature, committed with mankind or with a beast"-a crime so awful it was not even described, though presumably most people knew what was meant. Adultery was a crime, as were fornication, incest, and (of course) "the detestable crime against nature, committed with mankind or with a beast"-a crime so awful it was not even described, though presumably most people knew what was meant.z Any "open, gross lewdness and lascivious behavior" was also an offense. Similarly, it was a crime to cater to other people's lewdness-by keeping a house of ill fame, by "inveigling" or "enticing" a (previously "virtuous") woman into such a house, or by printing or selling obscene pictures or books. In the Illinois code of 1833, "public indecency, tending to debauch the public morals" was declared illegal. Any "open, gross lewdness and lascivious behavior" was also an offense. Similarly, it was a crime to cater to other people's lewdness-by keeping a house of ill fame, by "inveigling" or "enticing" a (previously "virtuous") woman into such a house, or by printing or selling obscene pictures or books. In the Illinois code of 1833, "public indecency, tending to debauch the public morals" was declared illegal.5 Reality was more complex. Take, for example, fornication. As we have seen, this crime was very commonly punished in some of the colonies. We have, of course, no way of knowing how many people got away with their dirty secret; we only know about those who were caught. There were literally thousands of these.

Harvesting fornicators required very precise social conditions, both cultural and structural. In the first place, enough people in the community had to find the act offensive. In modem California, fornication is not a crime at all; it has been relabeled and repackaged, and is, if anything, an esteemed, accepted way of life. In the second place, laws against fornication are hard to enforce except in small towns where everybody knows everybody else. In ports, big cities, communities of strangers, it is so much easier to hide your transgressions.

In the late eighteenth century and in the nineteenth, the criminal justice system paid less and less attention to victimless s.e.x crimes. There were, as we saw, lots of prosecutions in the eighteenth century, but the point was not so much to make sinners squirm, as to squeeze money out of men who fathered b.a.s.t.a.r.ds.6 In the late eighteenth century, the numbers began to decline. Linda Kealey studied indictments in the Superior Court of Ma.s.sachusetts between 1750 and 1796, a period that straddles the Revolution. Only 4.3 percent of the indictments were for "moral and s.e.xual crimes," that is, fornication, adultery, incest, blasphemy, swearing, and sabbath violation. In the late eighteenth century, the numbers began to decline. Linda Kealey studied indictments in the Superior Court of Ma.s.sachusetts between 1750 and 1796, a period that straddles the Revolution. Only 4.3 percent of the indictments were for "moral and s.e.xual crimes," that is, fornication, adultery, incest, blasphemy, swearing, and sabbath violation.7 By the nineteenth century, the structural conditions had probably changed. Certainly, city growth and mobility made enforcement very chancy. Research on criminal justice in this period is skimpy, to say the least. The evidence, such as it is, suggests a fairly feeble level of enforcement. In Ohio County, Virginia, there were two hundred forty indictments for crimes and misdemeanors between 1801 and 1810; one was for sabbath breaking, four for b.a.s.t.a.r.dy, twenty-four for profanity; none were for fornication, adultery, or sodomy.8 In Marion County, Indiana, during the period 1823-60, prosecutions for s.e.xual offenses (mainly fornication and adultery) made up 2.4 percent of the prosecutions in the county. In Marion County, Indiana, during the period 1823-60, prosecutions for s.e.xual offenses (mainly fornication and adultery) made up 2.4 percent of the prosecutions in the county.9 This is a far cry from Puritan zeal. This is a far cry from Puritan zeal.

Had the moral climate changed as well? Evidence here is even more slippery. Religious leaders, of course, had lost much of their grip. The statutes themselves, and the case law, provide indirect evidence of change in the inner meaning of laws against fornication and adultery. For the likes of Cotton Mather these were crimes because they went against the explicit word of G.o.d; of course they hurt society, but only because unG.o.dliness hurt society, not for other, more instrumental reasons.

The nineteenth-century program had a different flavor altogether. To be sure, householders, churchgoers, the respectable citizenry, held fast to traditional morality. s.e.x outside marriage was wrong; and inside, too, for that matter, if the technique or the method was wrong. Indeed, orthodox science reinforced this view-from the standpoint of health. Moderation and self-control were the key to a healthy life. s.e.xual excess was ferociously damaging to body and soul. s.e.xual excitement, according to Sylvester Graham, who wrote in the 1830s, "rapidly exhausts the vital properties of the tissues, and impairs the functional powers of the organs."10 These ideas about s.e.xuality, which seem ridiculous today, were not isolated quirks; they were part of a more general system of beliefs, the nineteenth-century obsession with social discipline and self-control, a horror of the bursting out of natural limits. Control, as Charles Rosenberg has put it, was "the basic building block of personality." The "pa.s.sions" had to be repressed at all costs.11 Of course, such ideas did not come out of the blue. Perhaps it is not too farfetched to see a connection between the emphasis on self-control and the American experiment in individualism and self-government. This was a free country. The citizen had cast off his chains, so to speak; society encouraged men (I use this word deliberately, for obvious reasons) to let loose their own internal energies, their potencies. But the whole experiment presumed presumed personal self-control; it a.s.sumed that citizens would not go wild, would use their energies in constructive ways, would not abuse the freedom that had been so painfully won. personal self-control; it a.s.sumed that citizens would not go wild, would use their energies in constructive ways, would not abuse the freedom that had been so painfully won.12 This was, to be sure, an ideal, and people have the inveterate habit of falling short of their ideals. Men were supposed to discipline themselves; and yet, and yet ... what was to be done about those animal instincts, those terrifying drives, those bursts of pa.s.sion? They could not be denied; a man's s.e.xual "energies" had to find some some outlet; and in fact, immoderate repression might even endanger his health. outlet; and in fact, immoderate repression might even endanger his health.13 As a practical matter, there was no getting rid of vice altogether-and who knows if it was even desirable. But it was crucially important to build dams and containments: structures of justice and social order that encouraged self-control, enthroned models of right behavior, and punished As a practical matter, there was no getting rid of vice altogether-and who knows if it was even desirable. But it was crucially important to build dams and containments: structures of justice and social order that encouraged self-control, enthroned models of right behavior, and punished extreme extreme deviance. This would drive vice into dark comers and back alleys, which was where it belonged-not extinct, by any means, but in a cage, with specific parameters. This is what we have called the Victorian compromise. deviance. This would drive vice into dark comers and back alleys, which was where it belonged-not extinct, by any means, but in a cage, with specific parameters. This is what we have called the Victorian compromise.

This point of view-rarely made explicit at the time, rarely formulated in coherent terms-helps to explain why, in a number of states, adultery was now a crime only when it was "open and notorious."14 Adultery and fornication came to be treated more or less like the crime of "indecent exposure." There was nothing criminal about the naked body. Taking a bath was not against the law. But the body was private, for private use, and private eyes only. Public exposure could not be allowed. Adultery and fornication came to be treated more or less like the crime of "indecent exposure." There was nothing criminal about the naked body. Taking a bath was not against the law. But the body was private, for private use, and private eyes only. Public exposure could not be allowed.aa So, under Michigan law, it was a crime if a man and woman "lewdly and lasciviously a.s.sociate or cohabit together, or if any man or woman, married or unmarried, shall be guilty of open and gross lewdness and lascivious behavior."16 The word open was crucial here. In an Alabama case, decided in 1848, a man named Collins was arrested, tried, and convicted, for "living in adultery" with a woman named Polly Williams. The word open was crucial here. In an Alabama case, decided in 1848, a man named Collins was arrested, tried, and convicted, for "living in adultery" with a woman named Polly Williams.17 The evidence showed that Collins, a married man, spent one night a week at Polly's home; he "slept with her all night." These goings-on lasted about seven months. This was adultery, no question: but did the statute cover the case? An "occasional act of criminal intimacy," the judges admitted, was not a crime. But Collins and Polly were pursuing a "course of conduct"; it was "open and notorious," and thus "an outrage upon decency and morality." The conviction of Collins had to stand. The evidence showed that Collins, a married man, spent one night a week at Polly's home; he "slept with her all night." These goings-on lasted about seven months. This was adultery, no question: but did the statute cover the case? An "occasional act of criminal intimacy," the judges admitted, was not a crime. But Collins and Polly were pursuing a "course of conduct"; it was "open and notorious," and thus "an outrage upon decency and morality." The conviction of Collins had to stand.

The lesson of the case, and of the statutes, was roughly this: sin itself was no crime-clandestine sin even less so. Of course, these were wrongful acts, but the evil had to be tolerated-up to a point. The contrast with colonial law is extremely sharp. The colonials make no distinction between just plain sin and open and notorious sin. If anything, they hated concealed concealed sin more. What they wanted from criminals and sinners was exposure, confession, and contrition. sin more. What they wanted from criminals and sinners was exposure, confession, and contrition.18 In the nineteenth century, the real crime was to act in such a way as to offend In the nineteenth century, the real crime was to act in such a way as to offend public public morality. Hence vice won a certain grudging degree of toleration, or even acceptance-so long as it remained in the shadows. morality. Hence vice won a certain grudging degree of toleration, or even acceptance-so long as it remained in the shadows.

This strikes the modern mind as hypocrisy; and no doubt it was hypocritical, to a degree. Men sat in legislatures and made up moral laws while pursuing, no doubt, their own hidden vices and pleasures. Nonetheless, a kind of implicit, and plausible, theory of social control underlay these laws. They gave the right message message: they preached morality, and they strengthened the hand of respectable, G.o.d-fearing people. Barefaced defiance of morals and law were illegal. This was bound to have some some impact on behavior. If open vice and open s.e.x are crimes, there is bound to be less of them; their price, so to speak, has gone up, and the conditions of illegality mold the time, manner, and mode of violation. Speeding is illegal today; lots of people speed, but probably less than otherwise; and n.o.body speeds as the patrol car cruises by. It is almost always a mistake to dismiss the various American prohibitions (no matter what is prohibited) as utterly toothless and a waste of time. impact on behavior. If open vice and open s.e.x are crimes, there is bound to be less of them; their price, so to speak, has gone up, and the conditions of illegality mold the time, manner, and mode of violation. Speeding is illegal today; lots of people speed, but probably less than otherwise; and n.o.body speeds as the patrol car cruises by. It is almost always a mistake to dismiss the various American prohibitions (no matter what is prohibited) as utterly toothless and a waste of time.

The point was well put in a New York report on the "social evil" (prost.i.tution), written much later, indeed at a time when the Victorian compromise was in the process of decay. The report urged steps to suppress every "flagrant" form of "incitement to debauch." Streetwalking, for example, should be utterly stamped out. "Haunts of vice" should be forced "to a.s.sume the appearance of decency"; the state should eradicate "every method of conspicuous advertising of vice." Much would be gained "if vice could be made relatively inconspicuous except to its votaries.... It is far better that prost.i.tutes should be clandestine in fact as well as in name than that they should appear in their true colours."19 Prost.i.tution itself was an example of the Victorian compromise at work. In most cities, prost.i.tution was a fact of life, a necessary evil, or, in the eyes of millions of men, no doubt a necessary non-evil, especially in western towns and other places where the supply of "decent" women was inadequate. In the big cities, n.o.body seriously thought of eliminating prost.i.tution, even a.s.suming most men wanted that. The goal, as we shall see, was only to keep it in its place-in the red-light areas, the tenderloins, the vice districts. We will return to this point, and to prost.i.tution as a crime, in chapter 10. Prost.i.tution itself was an example of the Victorian compromise at work. In most cities, prost.i.tution was a fact of life, a necessary evil, or, in the eyes of millions of men, no doubt a necessary non-evil, especially in western towns and other places where the supply of "decent" women was inadequate. In the big cities, n.o.body seriously thought of eliminating prost.i.tution, even a.s.suming most men wanted that. The goal, as we shall see, was only to keep it in its place-in the red-light areas, the tenderloins, the vice districts. We will return to this point, and to prost.i.tution as a crime, in chapter 10.

The report we quoted one paragraph back drew a line between the "votaries" of vice, who were probably hopeless, and innocents who might be dragged down with them. This was another reason why vice laws needed to be pa.s.sed, even if such laws were hard to enforce. Illegal vice would have to hide its face, and young folks would be less likely to come within its...o...b..t of corruption. Obscenity laws, for example, were aimed at words and pictures that might "corrupt" the "morals of youth." Michigan law made it a crime to print, publish, sell, or introduce "into any family, school or place of education" any books, pamphlets, and so on, that used obscene language or carried obscene pictures prints, or figures 20 20 "Fill a clean, clear gla.s.s with distilled water," wrote Anthony Comstock, "and hold it to the light.... It will sparkle like a gem, seeming to rejoice in its purity, and dance in the sunlight, because of its freedom from pollution. So with a child." But if you "put a drop of ink into the gla.s.s of water, ... at once it is discolored. Its purity cannot easily be restored." The "fountain of moral purity in our youth" is poisoned by bad literature, by obscenity. "A perpetual panorama of evil forms" will invade their minds. "Vile books and papers are branding-irons heated in the fires of h.e.l.l."21 In 1848 in Ma.s.sachusetts, a doctor with the interesting name of Walter Scott Tarbox was indicted (and convicted) for producing an offensive advertis.e.m.e.nt. It showed "an instrument for sale by him for the prevention of conception." He left this dreadful doc.u.ment on the doorsteps of respectable Boston households. Tarbox was convicted of violating the obscenity laws.22 The message was clear. s.e.x and its mysteries had to be covered up and disguised, like the human body; even normal and laudable aspects of human life, such as pregnancy, childbirth, and giving mother's milk to babies retreated from public view. What was acceptable