Crime and Punishment in American History - Lawrence M. Friedman [72]
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.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.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 1.22 And an interesting Massachusetts law of 1675, after reciting that raccoon fur was very good for making hats, forbade the “exportation” of “Raccoon 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.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.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.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.”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, canals, 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.
Whatever the goals of regulation, criminal