Crime and Punishment in American History - Lawrence M. Friedman [83]
The lesson of the case, and of the statutes, was roughly this: sin itself was no crime—clandestine sin even less so. Of course, these were wrongful acts, but the evil had to be tolerated—up to a point. The contrast with colonial law is extremely sharp. The colonials make no distinction between just plain sin and open and notorious sin. If anything, they hated concealed sin more. What they wanted from criminals and sinners was exposure, confession, and contrition.18 In the nineteenth century, the real crime was to act in such a way as to offend public morality. Hence vice won a certain grudging degree of toleration, or even acceptance—so long as it remained in the shadows.
This strikes the modern mind as hypocrisy; and no doubt it was hypocritical, to a degree. Men sat in legislatures and made up moral laws while pursuing, no doubt, their own hidden vices and pleasures. Nonetheless, a kind of implicit, and plausible, theory of social control underlay these laws. They gave the right message: they preached morality, and they strengthened the hand of respectable, God-fearing people. Barefaced defiance of morals and law were illegal. This was bound to have some impact on behavior. If open vice and open sex are crimes, there is bound to be less of them; their price, so to speak, has gone up, and the conditions of illegality mold the time, manner, and mode of violation. Speeding is illegal today; lots of people speed, but probably less than otherwise; and nobody speeds as the patrol car cruises by. It is almost always a mistake to dismiss the various American prohibitions (no matter what is prohibited) as utterly toothless and a waste of time.
The point was well put in a New York report on the “social evil” (prostitution), written much later, indeed at a time when the Victorian compromise was in the process of decay. The report urged steps to suppress every “flagrant” form of “incitement to debauch.” Streetwalking, for example, should be utterly stamped out. “Haunts of vice” should be forced “to assume the appearance of decency”; the state should eradicate “every method of conspicuous advertising of vice.” Much would be gained “if vice could be made relatively inconspicuous except to its votaries.... It is far better that prostitutes should be clandestine in fact as well as in name than that they should appear in their true colours.”19 Prostitution itself was an example of the Victorian compromise at work. In most cities, prostitution was a fact of life, a necessary evil, or, in the eyes of millions of men, no doubt a necessary non-evil, especially in western towns and other places where the supply of “decent” women was inadequate. In the big cities, nobody seriously thought of eliminating prostitution, even assuming most men wanted that. The goal, as we shall see, was only to keep it in its place—in the red-light areas, the tenderloins, the vice districts. We will return to this point, and to prostitution as a crime, in chapter 10.
The report we quoted one paragraph back drew a line between the “votaries” of vice, who were probably hopeless, and innocents who might be dragged down with them. This was another reason why vice laws needed to be passed, even if such laws were hard to enforce. Illegal vice would have to hide its face, and young folks would be less likely to come within its orbit of corruption. Obscenity laws, for example, were aimed at words and pictures that might “corrupt” the “morals of youth.” Michigan law made it a crime to print, publish, sell, or introduce “into any family, school or place of education” any books, pamphlets, and so on, that used obscene language or carried obscene pictures prints, or figures 20
“Fill a clean, clear glass with distilled water,” wrote Anthony Comstock, “and hold it to the light.... It will sparkle like a gem, seeming to rejoice in its purity, and dance in the sunlight, because of its freedom from pollution. So with a child.” But if you “put a drop of ink into the glass of water, ... at once it is discolored. Its purity cannot easily