Crime and Punishment in American History - Lawrence M. Friedman [80]
It is not easy to corral in words what sets “crimes against morality” apart from other kinds of crime. The usual classification, weak as it is, does ask in a rough way some relevant questions: Who or what or which interests were hurt by whatever it was that the criminal did? Many crimes against morality are so-called “victimless crimes,” that is, crimes about which nobody complains, or in which (arguably) nobody has been hurt. The crime, rather, damages us generally, rips the social fabric, or offends “public decency and order”—that is, Society with a capital S. Fornication was a good example; also sodomy, gambling, and drunkenness, public or private. Most of these acts, one notes, are behaviors of pleasure or leisure. People do not drink whiskey for a living. They do not (as a rule) fornicate for money. Rather, they do it because they like it, or want it, or can’t help it.
These are offenses, then, against the “moral sense of the community,” with or without an identifiable “victim,” that is, somebody who feels hurt, or violated, or cheated in some way. But the “moral sense of the community” is a slippery and complex idea. As we have said, it is not everybody’s moral sense; in our history (and this is more or less true everywhere), it is the moral sense of the people who count, the respectable middle and upper classes. Even so, it is not easy to measure or to sniff it out. Sometimes the penal code is the best evidence of what that moral sense might be; but of course that traps us in a circle. Moreover, people often say one thing and do another; the laws against morality certainly represent values people think they ought to have, but not at all necessarily what they (secretly) think or want.
And of course these values and ideas change over time. The ideas in people’s head reflect their experiences; and their experiences are distinctly time-bound and culture-bound. The moral sense of the tight, devout Puritan communities was in severe decay in the republican period. What shattered it, above all, was social and geographic mobility; the abundance of land, the rampant immigration, and the heady experiences of self-government fed this mobility. How these factors affected “crimes against morality” is the theme of this chapter.
The Victorian Compromise
One major way in which the law about morals crimes changed is that it lost something of its absolutist nature. This calls for a word of explanation. Moral crimes, like crimes in general, come in two forms, which, for want of a better way to put it, we might call the truly evil and the not quite so bad (or, bad in some but not all circumstances). State laws, for example, simply outlawed sodomy, which the codes described as totally evil, even unspeakable. Other moral prohibitions were more modulated. Take, for example, Sunday laws. Ohio law in 1831 did not allow anyone above the age of fourteen to engage in “sporting, rioting, quarreling, hunting, fishing, shooting, or ... at common labor” on Sunday, except for “works of necessity and charity.” It was also an offense for a tavemkeeper to sell liquor on Sunday, except to travelers.1
If it is an offense to fish on Sunday, or to sell liquor (or drink it, one supposes), it is hard to see why there should be any exceptions (say, for a thirteen-year-old, or for a traveler). The goal of the law, obviously, is not to stamp out all fishing on the sabbath, but to encourage a quiet, pious Sunday. It is a law, in other words, not about private sin, but about public surface and public order. Behind it lies a muddled but powerful theory of social control: a decent official moral framework is terribly important, not only to teach a lesson but also as a way of limiting bad behavior. Some bad acts, though they are going to happen