• Choose a category
• All
• Classic-Fiction

The Supreme Court, in Reynolds, merely reflected general sentiment against the “abominable” practice of polygamy. After the Reynolds case, the government stepped up the pace of prosecutions. Between 1884 and 1890, thirty men were convicted of polygamy in Utah Territory; 1,092 were convicted of “unlawful cohabitation.”74 The point of the Edmunds-Tucker Act, passed by Congress in 1887, was to destroy the Church altogether; among other things, it made proof of polygamy easier. 75 The campaign fizzled out only after the Church, bowing to the inevitable, recanted, receded from its polygamous doctrines, and began the long march to respectability.

The Poor

The best-known image or logo of justice is a blindfolded woman, holding in her hands the scales of neutrality. The law is not supposed to know rich or poor; everyone, popular or unpopular, favored or disfavored, is entitled to the equal protection of the laws. Of course, no society has ever lived up to any such ideal. Even more fundamentally, it is worth asking whether these really are the ideals of any society, whether they are anything but slogans. Law is a fabric of norms and practices in a particular society; the norms and practices are social judgments made concrete: the living, breathing embodiment of society’s attitudes, prejudices, and values. Inevitably, and invariably, these are slanted in favor of the haves; the top-riders, the comfortable, respectable, well-to-do people. After all, articulate, powerful people make the laws; and even with the best will in the world, they do not feel moved to give themselves disadvantage.

Rules thus tend to favor people who own property, entrepreneurs, people with good position in society. The lash of criminal justice, conversely, tends to fall on the poor, the badly dressed, the maladroit, the deviant, the misunderstood, the shiftless, the unpopular.

Strictly speaking, the actual “poor laws” are not part of the criminal justice system, and the poorhouse was not a jail. But the parallels between the two are too striking to be overlooked. The poorhouse developed in the early nineteenth century; it became, like the jail, a dumping grounds for unfortunates. Indeed, jails often served as rough-and-ready shelters for desperate or homeless people. It seems cruel to lock up men and women in jail for no worse crime than poverty; but there was at least some kind of dim humanity in opening the jails on a bitter winter night for the detritus of society. In any event, respectable citizens of the nineteenth century did not always distinguish between paupers and criminals: the two together made up the “dangerous class” that threatened the very fabric of the social order.76 Poverty, in the nineteenth century, came to be defined as “abnormal”; it was a social problem, something to be explained and, if possible, eliminated. This was supposedly a rich country, a land of opportunity. Economic failure, then, must be due to moral failure; pauperism was, in short, close kin to actual crime.77

It is not surprising, then, that the law was a scourge of unusual ferocity for drifters—the homeless poor, the vagabonds, tramps, hobos, the army of the unemployed. This was an incredibly mobile society, a society unlike all other prior societies: a society of rolling stones. Of course, human history is a history of great migrations. Nothing has been so formative in world experience as the movement of peoples: Huns sweeping out of the East, Angles, Jutes, and Saxons pouring into the British Isles; and, in the nineteenth century, immigrants with their pathetic bundles of belongings, coughed out of the holds of thousands of leaky boats. There were group movements, too, in America’s history of immigration—whole towns that picked themselves up and moved to the Americas. Families brought families; cousins sent money for cousins; each individual immigrant was a hydraulic force, pulling in relatives, in-laws, friends from the old country. Yet, when all is said and done, mobility