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By Root 1748 0

such place for the purpose of smoking opium.” In 1890, the city of Oakland enacted an ordinance to “Prevent the Abuse of Opium and Other Drugs”; druggists were to sell opium, morphine, or cocaine only on a doctor’s prescription, and only for the “purpose of curing or alleviating disease.” The ordinance also applied to morphine and cocaine.55 An Illinois law of 1897 made it an offense to sell cocaine without a prescription.56 General narcotics laws were a twentieth-century idea; but the foundations were laid in the nineteenth century. Here, too, the new law-making ethos was opposed to compromise; these drugs brought about corruption; they were contagious and addictive, and they had to be stamped out, if at all possible.

In short, there was a surge of interest in victimless crime, in vice, in sexual behavior, at the end of the nineteenth century. What brought it about? Why did so many people think it was important to try to eradicate vice? There were, to be sure, some practical reasons to worry: prostitution and promiscuity were indeed problems of public health. People had learned more about venereal diseases, how they spread, and the terrible toll they took.

But perhaps the causes lay deeper. One thesis is that there was a kind of moral struggle in America, between the old WASP elite and the new waves of immigrants. The old America felt under attack; it felt that its values were eroding. The rise of huge, hungry cities, the mobs of immigrants, the tempestuous pace of social change—all this profoundly unsettled the traditional elites. They smelled crisis, and were seized by the thought that, by God, something had to be done about it.57 This is a plausible theory, and it helps to explain the death of the Victorian compromise, which rested on certain comfortable assumptions about the nature of American society.

In addition, criminal justice had become, in a peculiar way, more democratic. The social base of power was broader. All white men over twenty-one had the vote. The law responded, more and more, to a compact, middle-class mass of respectable citizens.58 Tolerance for vice in the earlier part of the century had been, in a way, an elite attitude; an attitude, in part, of noblesse oblige. There was less of this in the United States than in England, because there was vastly less noblesse. Nonetheless, this was a factor to be recokoned with.

This was also a very mobile society, as we have many times observed. America was socially mobile as well as geographically mobile. There were no fixed classes (among whites). People rose; and people fell. In an elite society, with a stationary underclass, the top is not terribly interested in the sex lives of the bottom, or their vices. The poor are animals. In a mobile, industrial society, everybody is one class in the moral sense, because all the players can move from class to class. Respectable people believed in one society, one polity, one community—and a single universal moral code, which the legal code had to embody.

These are guesses—plausible or not. But whatever the reasons, the facts are clear: there was a strong move, successful in part, to tighten the laws against vice, sex, and victimless crime. Not everyone went along; and the backlash, as we will see, brought about a backlash of its own. But that story belongs to the twentieth century.

Enforcement

The new laws were obvious enough: they were printed in the books. But what about enforcement? That, as usual, was a far different matter.

Laws against adultery and fornication were certainly not rigorously enforced. Arrests were, at most, sporadic. In the Ohio Courts of Common Pleas, there were 28 indictments for adultery in 1875, and 7 for fornication (the population of the state was almost 3 million). And exactly 8 people in the state went to jail for these offenses in the year—6 for adultery, 2 for fornication. Yet in the same year, 304 divorces were granted on the grounds of the (crime of) adultery.59

Behind each instance was, no doubt, some particular story or incident. We catch a glimpse of the background here