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Fish and game laws were recognitions, at least, that animal life was not without limit. A few laws also recognized that clear air and water, and an endless sky, could not be taken for granted any more than the supply of muskrats. Nuisance law, in cities, had something of this flavor. A New Jersey law of 1884 outlawed the “discharge ... of such refuse or residuum, resulting from the refining of petroleum, as is commonly called ‘sludge acid,’ into or upon any river, stream, ... pond or other body of water.”62 But these were still exceptional noises in a general symphony of growth and expansion.

Gradually, however, the conservation tones got louder. A sense of contraction, of limits, translated itself into positive rules. A Nebraska statute, for example, late in the century, made it unlawful to kill (except on one’s own land) “any robin, lark, thrush, blue bird, king bird, sparrow, wren, jay, swallow, turtle dove, oriole, wood-pecker, yellow-hammer, cuckoo, yellow bird, bobolink, or other bird or birds of like nature”: these birds, to be sure, “promote agriculture or horticulture by feeding on noxious worms and insects,” but they are also “attractive in appearance or cheerful in song.”63 The fish and game laws—laws about what and where to hunt, when to hunt, how much to hunt—became more and more elaborate.

People came to feel, in other words, that horizons were not unlimited, resources not infinite. This was true in the crowded, urban East, but also in the empty, rural West. In Wyoming, by 1899, the “wanton destruction or the wasting of the game and fish of this state” was declared a misdemeanor. There were limits on game birds, ducks, geese, swans, deer, elk, mountain sheep, mountain goats, and beaver. No moose was to be killed until September 1902; and then only one male moose to a customer, and only during the season. And, most dramatically of all, there was a total ban on killing the buffalo; violation of this provision was a felony.64 At one time there had been herds of these animals that seemed endless; and they were killed for their tongues, or for no reason at all.

6

MORALS, MORALITY, AND CRIMINAL JUSTICE

CHAPTER 5 EXPLORED THE ECONOMIC FACE OF CRIMINAL JUSTICE,. THIS CHAPTER looks at its other face, the moralistic face. Whatever else it does, the criminal code reflects, though perhaps at times as crudely as a funhouse mirror, some notion of the moral sense of the community—or, to be more accurate, the moral sense of the people who count, and who speak out, in the community. It never expressed, for example, the moral sense of slaves, and deliberately so; nor did it express, in any systematic way, the moral sense of women, except as refracted through the men in their lives.

In the previous chapter we said that all criminal law is economic, in some regard. But all criminal law is also moral law, again in some regard; every line in the penal code tags some behavior as wrong—either deeply and inherently wrong, or wrong because of its consequences. As we have seen, jurists once drew a distinction between crimes mala in se (evil in themselves) and crimes that are mala prohibita (evil only when we say they are, when we stick on a criminal label). Murder would be malum in se; most regulatory offenses, mala prohibita.

This is a shaky distinction, both historically and culturally. As we have said, ideas about what is right and wrong ebb and flow, in space and time; what is heinous in one period is shrugged off in another, or even lauded to the skies. In any particular community, however, the distinction has some meaning. To members of the community, some acts seem incomparably bad, some not so bad; some seem to ooze out from some darker, more primitive source of bone-deep, inescapable evil.

But “enforcement of morality” does not, on the whole, refer to the war against rape, murder, arson, and deadly assault. These are, of course, immoral acts; but “moral crimes” is used here and in the literature in a more restricted sense. It is one of three big, time-wom