Crime and Punishment in American History - Lawrence M. Friedman [73]
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 butter, 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 canals: no one was to obstruct a canal or dig a ditch in such a way as to cause “earth, sand, gravel, or other material to be washed into any canal,” or “wilfully put ... any dead animal into any canal,” among other things.30
Least visible, but no less important, were the countless municipal and local ordinances and rules that imposed fines (and sometimes jail sentences) for violations of rules and regulations. State statutes authorized these: for example, Massachusetts law (1855) gave the mayor and aldermen of any city, and the selectmen of any town, power to license pawnbrokers; anyone engaging in this noble business without a license was liable to a fine.31 Every state had dozens of laws of this type.
It is easily to overlook these criminal provisions in the basement 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 spaces. 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 classic 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 ass, affected by the diseases known as nasal gleet,