Crime and Punishment in American History - Lawrence M. Friedman [78]
The usual view of the period, which seems quite plausible, is that courts were reactionary, legislatures more progressive. But this may be something of a distortion. Many labor laws were never tested in court at all; most of those that were, passed the test with flying colors. Nor were legislatures quite so “progressive” as they seemed on the surface. Legislatures rarely passed laws that seriously changed the balance of power, or redistributed income. A criminal law is cheap to pass, requires no tax money or civil servants, and passes the buck to local enforcement officials. Not all labor laws, of course, were of this kind; some laws established commissions, agencies, authorities, to carry out the work. But there were enough pure criminal laws to make us cautious in our general assessment of the impact of legislative intervention.
Rules of the Road
In this chapter, we have looked at rules of criminal justice as price-setting rules. Another way to put it is to think of these rules as devices that ration or control the supply of certain behaviors—through rewards and punishments, of course. Sometimes the system rations goods and services quite literally. During the Second World War, wages and prices were frozen and ration tickets issued for gasoline and sugar. Violation of regulations was a criminal offense.
Other legal rules ration in a less literal way. Probably no branch of law is bigger today and touches the lives of more people than traffic law; a traffic offense is the only “crime” the average person is likely to be convicted of during his or her lifetime.x Traffic law is bulky and ubiquitous because traffic is bulky and ubiquitous; there are millions of cars, buses, and taxis on the road, and millions of drivers. Road space is a scarce commodity, especially in the cities. Clearly, if everybody drove as fast as they wanted, when they wanted, where they wanted, without regulation, the results would be total chaos. It is nearly that as it is.
Space, then, has to be rationed; it can’t be treated as a free good, which everybody can grab for herself, first-come, first-served, like a park bench or space on the grass in the town square. The law is the instrument that carries out this rationing. Even in the nineteenth century there were rudimentary rules of the road; drivers of “carriages, sleighs, or sleds,” as a New Jersey statute put it, had to “keep to the right,” when they met another vehicle, and if “overtaken,” the other vehicle must be allowed to pass “free and uninterrupted.”59 In Nebraska, a carriage owner could be fined if he hired a drunkard as a driver; no one was to ride or drive over a bridge “faster than a walk.”60
Conservation laws are rationing laws as well. The preservation of wilderness is a distinctly modern goal. But the general idea of conservation goes back a stretch in time; we cited a Rhode Island statute on oysters, for example. As early as the colonial period, as we saw, there were restrictive fish and game laws. Every state in the nineteenth century had its own version. These laws, in general, were economic in the most baldly literal sense. They tried to protect a valuable commodity. At first, they carried out the dominant theme of economic development. Hardly anybody worried about “endangered species”; there was much more concern about endangering species. The New Hampshire statutes in 1851, which made it an offense to shoot or trap beaver, mink, otter, or muskrats between May 30 and November 1, also offered cash bounties for the killing of wolves,