Crime and Punishment in American History - Lawrence M. Friedman [70]
In the course of the nineteenth century, penal codes tended to grow in bulk, and the number of crimes increased greatly. This was especially the case for property crimes. Simple, traditional crimes like larceny and theft tended to split off and divide like amoebas into a great number of daughter crimes: special rules for stealing this or that kind of goods. These split-offs were hardly random. They tended to reflect particular business sensitivities (or at least particular lobbying activities). The Texas Penal Code of the 1880s is a good illustration: in addition to the general rules punishing theft and larceny, article 746 was aimed at anyone who stole “any horse, ass, or mule”; article 747 applied to “cattle,” and article 748 to “sheep, hogs, or goats.” The punishments were different: five to fifteen years in the penitentiary for horse thieves; two to five for those who stole cattle; for sheep, hogs, or goats, it all depended on the value of what was stolen: if over twenty dollars in value, then two to five years in the penitentiary, and, if less, up to a year in the county jail, or a fine, or both.6 Texas was a cattle state, of course. Definitions and punishments of forms of theft were clues to what was crucial to the polity.
Framing the Market
“Theft” can occur in any society; a market society, however, has certain specific institutions that need protection as much as simple “property.” Money and banking undergird the whole economy. They generate a whole class of crimes. Counterfeiting, debasing the coinage, passing bad coins, and forging bank notes disrupt business and drag the economy down. Forgery is also generally destructive: the falsifying of public records—wills, deeds, leases, charters, and the like—can work great mischief. All these acts were quite generally criminalized. We have mentioned an early federal statute (1790) that made it a crime to forge any “certificate, indent, or other public security of the United States”; a law of 1798 added “any bill or note issued by the ... Bank of the United States.”7 A New Hampshire law applied to “false and counterfeit coin made and forged in imitation and simulation of any gold or silver coin current within this state.”8
Regulation of banks and banking was, for the time, both heavy and persistent. In New York’s revised statutes of 1858 these regulations ran to over fifty pages bristling with prohibitions. In the later nineteenth century, there was equally heavy regulation of insurance companies, especially “foreign” (out of state) companies.9 Usury was a old crime, with an ancient stigma attached. In the nineteenth century, there was a drumbeat of criticism of the usury laws, in the name of free enterprise. Some states went so far as to eliminate their usury laws, usually because of a strong social demand for capital at any price—for example, in order to finance the sale of public lands.10 More commonly, statute law declared that a usurious contract was unenforceable; or attached a penalty—Illinois, in 1845, for example, specified that the lender would forfeit “three-fold the amount of the whole interest reserved, discounted or taken.”11 Strictly speaking, most of these usury laws were not criminal laws; but they did attach severe penalties to lending contracts that offended against the statutory law.
Government at all levels also took steps to protect its own revenues, not always successfully. One of the few sources of federal power and wealth was the treasure house of public land. Millions of acres were given away and sold for a song in a wild festival of bribery and corruption. There were, indeed, laws on the books intended to prevent