Crime and Punishment in American History - Lawrence M. Friedman [82]
The nineteenth-century program had a different flavor altogether. To be sure, householders, churchgoers, the respectable citizenry, held fast to traditional morality. Sex outside marriage was wrong; and inside, too, for that matter, if the technique or the method was wrong. Indeed, orthodox science reinforced this view—from the standpoint of health. Moderation and self-control were the key to a healthy life. Sexual excess was ferociously damaging to body and soul. Sexual excitement, according to Sylvester Graham, who wrote in the 1830s, “rapidly exhausts the vital properties of the tissues, and impairs the functional powers of the organs.”10
These ideas about sexuality, which seem ridiculous today, were not isolated quirks; they were part of a more general system of beliefs, the nineteenth-century obsession with social discipline and self-control, a horror of the bursting out of natural limits. Control, as Charles Rosenberg has put it, was “the basic building block of personality.” The “passions” had to be repressed at all costs.11
Of course, such ideas did not come out of the blue. Perhaps it is not too farfetched to see a connection between the emphasis on self-control and the American experiment in individualism and self-government. This was a free country. The citizen had cast off his chains, so to speak; society encouraged men (I use this word deliberately, for obvious reasons) to let loose their own internal energies, their potencies. But the whole experiment presumed personal self-control; it assumed that citizens would not go wild, would use their energies in constructive ways, would not abuse the freedom that had been so painfully won.12
This was, to be sure, an ideal, and people have the inveterate habit of falling short of their ideals. Men were supposed to discipline themselves; and yet, and yet ... what was to be done about those animal instincts, those terrifying drives, those bursts of passion? They could not be denied; a man’s sexual “energies” had to find some outlet; and in fact, immoderate repression might even endanger his health.13 As a practical matter, there was no getting rid of vice altogether—and who knows if it was even desirable. But it was crucially important to build dams and containments: structures of justice and social order that encouraged self-control, enthroned models of right behavior, and punished extreme deviance. This would drive vice into dark comers and back alleys, which was where it belonged—not extinct, by any means, but in a cage, with specific parameters. This is what we have called the Victorian compromise.
This point of view—rarely made explicit at the time, rarely formulated in coherent terms—helps to explain why, in a number of states, adultery was now a crime only when it was “open and notorious.”14 Adultery and fornication came to be treated more or less like the crime of “indecent exposure.” There was nothing criminal about the naked body. Taking a bath was not against the law. But the body was private, for private use, and private eyes only. Public exposure could not be allowed.aa
So, under Michigan law, it was a crime if a man and woman “lewdly and lasciviously associate or cohabit together, or if any man or woman, married or unmarried, shall be guilty of open and gross lewdness and lascivious behavior.”16 The word open was crucial here. In an Alabama case, decided in 1848, a man named Collins was arrested, tried, and convicted, for “living in adultery” with a woman named Polly Williams.17 The evidence showed that Collins, a married man, spent one night a week at Polly’s home; he “slept with her all night.” These goings-on lasted about seven months. This was adultery, no question: but did the statute cover the case? An “occasional act of criminal intimacy,” the judges admitted, was not a crime. But Collins and Polly were pursuing a “course of conduct”; it was “open and notorious,” and thus “an outrage upon decency and morality.