Crime and Punishment in American History - Lawrence M. Friedman [76]
Bishop had spoken about “intentional wrong acting.” But in some regulatory laws, intention was not particularly important, or not important at all. In one Massachusetts case, in 1875, a statute made it a crime to “sell, or keep, or offer for sale, naphtha, under any assumed 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.
A case like this underscores what is distinctive about 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 classified 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.
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 God 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 attitudes 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 steps. There were, by the end of the century, boards of health at the state, city, and county levels, issuing