Crime And Punishment In American History Part 5

The need for scientific rigor also affected the ancient office of the coroner, who held "inquests" when n.o.body was sure exactly how a particular body had become a corpse. In big cities, the coroner was something of a throwback. The coroner was a layman, often an undertaker, usually an elected official. Coroners and lay juries of inquest were all well and good in an old village, but big-time mysterious death required something better. As early as 1858, a committee of the American Medical a.s.sociation suggested giving the coroner's job only to a "competent and respectable doctor in medicine."52 Ma.s.sachusetts abolished the office of coroner in 1877. Instead, each county was to designate "able and discreet men, learned in the science of medicine, to be medical examiners." Ma.s.sachusetts abolished the office of coroner in 1877. Instead, each county was to designate "able and discreet men, learned in the science of medicine, to be medical examiners." 53 53ap Mobility and Crime In the nineteenth century, the culture of mobility and the culture of criminal justice were deeply intertwined and deeply interinvolved. Amateur justice does not work well in a society of cities, a society of people constantly moving about. Professionals are needed. The community cannot rely on gossips, on posses, on lay people in the halls of justice and in the correctional system. Hence the need for police, detectives, prison officials, medical examiners, forensic scientsts, and, in general, a growing army of criminal justice workers.

The relations.h.i.+p between the mobile society and criminality itself is tough and elusive. Serious crime, however defined, is related to rootlessness-to s.h.i.+fting and moving about-in various ways. To begin with, the s.h.i.+fting and moving creates special opportunities for crime; it encourages some kinds of crime. Swindling and bigamy were given as examples; there are certainly others. For example, the "fence," who deals in stolen property and makes markets for stolen goods, became an important figure in large cities, where goods are fungible and anonymous.55 In the second place, the rootless and mobile fill the ranks of the criminal cla.s.s-those who take advantage of the new opportunities. But these people also fill the ranks of victims of criminal (in)justice: they are the ones whom the system most persecutes, stigmatizes, and bedevils. In the second place, the rootless and mobile fill the ranks of the criminal cla.s.s-those who take advantage of the new opportunities. But these people also fill the ranks of victims of criminal (in)justice: they are the ones whom the system most persecutes, stigmatizes, and bedevils.

The traits we have discussed obviously increased in the course of the nineteenth century. Did crime crime itself increase? It is hard to tell. The statistical data is poor, and such as it is, it points in two directions at once. There is, on the one hand, some evidence for "crime waves," bulges in the curve, in this period. One notable wave occurred, apparently, a few years after the Civil War. itself increase? It is hard to tell. The statistical data is poor, and such as it is, it points in two directions at once. There is, on the one hand, some evidence for "crime waves," bulges in the curve, in this period. One notable wave occurred, apparently, a few years after the Civil War.56 It would be no surprise if the war produced a crop of criminals. War could make soldiers callous about blood and guts, even comfortable with violence and death. War puts guns in the hands of young men. The war jerked men and boys out of their homes, disrupted social systems, and raped familiar landscapes. At the end of the war, military discipline was relaxed. The same young males were discharged, their inner selves disrupted and loose, rattling about inside a broken box of norms. The war, in other words, accelerated and exaggerated a state of mobile normlessness for the most crime-p.r.o.ne elements of the American population. It would be no surprise if the war produced a crop of criminals. War could make soldiers callous about blood and guts, even comfortable with violence and death. War puts guns in the hands of young men. The war jerked men and boys out of their homes, disrupted social systems, and raped familiar landscapes. At the end of the war, military discipline was relaxed. The same young males were discharged, their inner selves disrupted and loose, rattling about inside a broken box of norms. The war, in other words, accelerated and exaggerated a state of mobile normlessness for the most crime-p.r.o.ne elements of the American population.

But this was a short-term trend. The long-term trend is exactly the opposite: crime almost certainly declined in the late nineteenth century, serious crime most notably. Most studies of arrest data and most guesses about crime rates show a decline decline in the late nineteenth century: arrests appear to go down, and as far as one can tell, so does serious crime. What was true for violence and "serious" crime was not necessarily true of "crime" in general. Still, homicide, the most easily measured crime, reached some sort of trough by about 1890, after which it began to rise again. in the late nineteenth century: arrests appear to go down, and as far as one can tell, so does serious crime. What was true for violence and "serious" crime was not necessarily true of "crime" in general. Still, homicide, the most easily measured crime, reached some sort of trough by about 1890, after which it began to rise again.57 Most of the studies of crime rates, for all their flaws, do point in the same direction, as we have seen: a falling crime rate in the latter part of the century. Most of the studies of crime rates, for all their flaws, do point in the same direction, as we have seen: a falling crime rate in the latter part of the century.

It is certainly not easy to explain what was happening. Why had the country become more civil, or indeed more civilized civilized (for want of a better word)? Policing was not as haphazard as it had been before the organization of police forces; perhaps this accounts for some of the change. But on the whole, it is a puzzle. And an even greater puzzle lies ahead, in the twentieth century. After the middle of the century-after 1950, say-the trend reversed itself with a vengeance. The dam went smash in the night and dark waters of crime flooded the country. When we discuss the late twentieth century, this question will be in the front of our minds: What was it that let down the barriers? What, in short, brought about a collapse of civility, and sent the curve of violent crime through the roof? (for want of a better word)? Policing was not as haphazard as it had been before the organization of police forces; perhaps this accounts for some of the change. But on the whole, it is a puzzle. And an even greater puzzle lies ahead, in the twentieth century. After the middle of the century-after 1950, say-the trend reversed itself with a vengeance. The dam went smash in the night and dark waters of crime flooded the country. When we discuss the late twentieth century, this question will be in the front of our minds: What was it that let down the barriers? What, in short, brought about a collapse of civility, and sent the curve of violent crime through the roof?

10.

WOMEN AND CRIMINAL JUSTICE TO THE END OF THE NINETEENTH CENTURY.

IN THE DRAMA OF CRIMINAL JUSTICE, MOST LEADING PLAYERS HAVE BEEN MEN; heroes, villains, stagehands, hangers-on. Throughout most of our history, women have been shut out of key roles in criminal justice. There were no women lawyers before the 1870s, no judges or jurors to speak of until the twentieth century. Policewomen and women detectives came late to the scene, and remained uncommon. Women, of course, took the witness stand; and they contributed their share to the great roster of suffering victims. Women in large numbers were robbed, murdered, beaten (often by their husbands), seduced, cheated, and raped.

Women criminals criminals were always in short supply. There were, of course, exceptions, some quite notable. "Mother Mandelbaum," the "queen of fences," handled stolen goods on an enormous scale. Her specialty was silk, but she dealt in every kind of stolen property. She had a good reputation as a businesswoman "whose honesty in criminal matters was absolute." When the police closed in on her, she fled to Canada. were always in short supply. There were, of course, exceptions, some quite notable. "Mother Mandelbaum," the "queen of fences," handled stolen goods on an enormous scale. Her specialty was silk, but she dealt in every kind of stolen property. She had a good reputation as a businesswoman "whose honesty in criminal matters was absolute." When the police closed in on her, she fled to Canada.1 "Madame Restell"-her actual name was Ann Lohman-was a notorious abortionist who began her work in the 1830s. She was arrested numerous times, and founded branches of her New York business in Boston and Philadelphia. "Madame Restell"-her actual name was Ann Lohman-was a notorious abortionist who began her work in the 1830s. She was arrested numerous times, and founded branches of her New York business in Boston and Philadelphia.2 Her career lasted until the 1870s; facing prosecution and disgrace, she slit her own throat with an ebony-handled carving knife in the bathtub of her mansion. In the Wild West there was Flora Quick, a horse thief of Oklahoma Territory with "hair as black as a raven's wing and eyes like sloes," who did her dirty work dressed as a man and calling herself Tom King. Probably no other western horse thief ever broke out of jail by seducing a sheriff's deputy and eloping with him. Her career lasted until the 1870s; facing prosecution and disgrace, she slit her own throat with an ebony-handled carving knife in the bathtub of her mansion. In the Wild West there was Flora Quick, a horse thief of Oklahoma Territory with "hair as black as a raven's wing and eyes like sloes," who did her dirty work dressed as a man and calling herself Tom King. Probably no other western horse thief ever broke out of jail by seducing a sheriff's deputy and eloping with him.3 There was also the occasional woman charged with murder: Lizzie Borden, who either did or did not give her father and stepmother forty whacks with an ax, was probably the most famous of these. There was also the occasional woman charged with murder: Lizzie Borden, who either did or did not give her father and stepmother forty whacks with an ax, was probably the most famous of these.

The criminal ma.s.ses, of course, committed property crimes of staggering ba.n.a.lity; and women were no exception. But the patterns of criminality among women were not the same as those among men. Women s.h.i.+ed away from burglary. By some accounts they were underrepresented in the pickpocket business, perhaps because of the "manner in which women dress, and from the fact that females are nearly always more observed than men."4aq But their clothing may, in fact, have given them an edge in shoplifting. This was particularly true, according to one detective in the 1880s, for the higher-cla.s.s shoplifter. He described her as a woman who lived in a "fas.h.i.+onable private boarding-house" and never came home from a shopping foray "without a good haul." "Under their rich and costly silk dresses are thick, heavy skirts, in which are huge bags or pockets. Cleverly concealed slits in the dresses communicate with these pockets." A man had no such chance to hide goods. But their clothing may, in fact, have given them an edge in shoplifting. This was particularly true, according to one detective in the 1880s, for the higher-cla.s.s shoplifter. He described her as a woman who lived in a "fas.h.i.+onable private boarding-house" and never came home from a shopping foray "without a good haul." "Under their rich and costly silk dresses are thick, heavy skirts, in which are huge bags or pockets. Cleverly concealed slits in the dresses communicate with these pockets." A man had no such chance to hide goods.6 According to another account, young women, "modest in demeanor," posing as flower girls, were the worst blackmailers in New York City. These women gained access to the "offices and counting rooms of professional men and merchants, and then, if the gentleman is alone, close the door, and threaten to scream and accuse him of taking improper liberties" unless he paid up. According to another account, young women, "modest in demeanor," posing as flower girls, were the worst blackmailers in New York City. These women gained access to the "offices and counting rooms of professional men and merchants, and then, if the gentleman is alone, close the door, and threaten to scream and accuse him of taking improper liberties" unless he paid up.7 Most women who were arrested were probably none of the above. They were, instead, part of the undercla.s.s of great cities: neglected and dest.i.tute girls of the streets. There were women hoboes, vagrants, and tramps. When they turned to crime, women were not violent, as a rule. Sometimes, however, they formed gangs of petty thieves, and many of them turned to prost.i.tution. No one, said George Templeton Strong, the New York lawyer and diarist, writing in 1851, could "walk the length of Broadway without meeting some hideous troop of ragged girls, from twelve years old down, brutalized already almost beyond redemption by premature vice, clad in the filthy refuse of the rag-picker's collections, obscene of speech"; there was "foulness on their lips"; they had "thief written in their cunning eyes and wh.o.r.e on their depraved faces, though so unnatural, foul and repulsive in every look and gesture, that that last profession seems utterly beyond their aspirations."8 Yet the weak showing of women, particularly in crimes of violence, is constant, throughout American history; every study of the subject shows it, as does every state, city, or region that has figures for arrests, trials, and convictions. To take one example, in a sample of New York criminal cases in the latter part of the nineteenth century, less than 10 percent of defendants were women.9 The percentages may vary a bit up and down; but women never have their "fair share"; and the more serious the crime, the less likely it is that women commit it. American women, on the whole, have simply never been a violent lot. The percentages may vary a bit up and down; but women never have their "fair share"; and the more serious the crime, the less likely it is that women commit it. American women, on the whole, have simply never been a violent lot.

Indeed, the official line was that committing crimes was almost unthinkable for women, especially married women. "If a woman commit theft, burglary, or other civil offense," wrote Blackstone in the middle of the eighteenth century, "by the coercion of her husband, or even in his company even in his company, which the law construes a coercion, she is not guilty of any crime, being considered as acting by compulsion, and not of her own free will" (emphasis added).10 In theory, then, a married woman ("feme covert" in legal jargon) was not guilty of a crime she seemed to be committing, if her husband was with her at the time, because the law treated him as the perpetrator and the wife as a helpless tool in his hands. It was this notion that led Mr. b.u.mble to his famous outburst, in Charles d.i.c.kens's In theory, then, a married woman ("feme covert" in legal jargon) was not guilty of a crime she seemed to be committing, if her husband was with her at the time, because the law treated him as the perpetrator and the wife as a helpless tool in his hands. It was this notion that led Mr. b.u.mble to his famous outburst, in Charles d.i.c.kens's Oliver Twist, Oliver Twist, that if the law believed any such thing, then the law "is a a.s.s-a idiot." that if the law believed any such thing, then the law "is a a.s.s-a idiot."ar The doctrine of coverture, like many others, was English in origin and respectably old. The treatise writers felt that it was part of American law as well. The case law talks about it, and so do the scholars, well into the nineteenth century. Joel Bishop treated it seriously in 1858: the "feme covert" (married woman) is, he wrote, "under certain obligations of obedience, affection, and confidence" toward her husband. In return for this, the law "allows her this indulgence, that, if through constraint of his will she carries her duty of obedience to the excess of doing unlawful acts, she shall not suffer for them criminally."12 Very few reported cases actually seem to turn on the doctrine. Was it ever part of the living law? One careful study of colonial Pennsylvania turned up precious little evidence that courts took it seriously. In Pennsylvania, at least, a "woman seemed almost never to be the recipient of leniency because of her alleged legal subservience to her mate."13 The doctrine was codified in a few states in the nineteenth century. The doctrine was codified in a few states in the nineteenth century.14 But most likely there was not much enthusiasm for applying it in practice. But most likely there was not much enthusiasm for applying it in practice.

Sally Freel was convicted of murder in the second degree in Arkansas in 1860. She had (allegedly) aided and abetted her husband in the killing. In her appeal she invoked the doctrine of coverture. An Arkansas statute excused married women "acting under the threats, commands or coercion of their husbands." But this did not save her. Upholding her conviction, the Arkansas court said that "Marriage does not deprive the wife of the legal capacity of committing crime," and "the mere presence of her husband does not excuse her."15 The doctrine was a two-edged sword. In The doctrine was a two-edged sword. In Mulvey v. State Mulvey v. State16 James Mulvey was convicted of selling liquor without a license. Mulvey was a policeman; his wife owned a grocery store in Mobile. Two men went into the store and asked for whiskey. Mulvey "directed his wife, who was then behind the counter," to give the men what they wanted. They drank and paid twenty cents. The court upheld Mulvey's conviction. "As a general principle, when the wife acts under the coercion of the husband . . . she is not responsible.... Criminally, she is not guilty." Mulvey, "by his conduct . . . made his wife's act his own." James Mulvey was convicted of selling liquor without a license. Mulvey was a policeman; his wife owned a grocery store in Mobile. Two men went into the store and asked for whiskey. Mulvey "directed his wife, who was then behind the counter," to give the men what they wanted. They drank and paid twenty cents. The court upheld Mulvey's conviction. "As a general principle, when the wife acts under the coercion of the husband . . . she is not responsible.... Criminally, she is not guilty." Mulvey, "by his conduct . . . made his wife's act his own."as By mid-century probably, and certainly by the century's end, the doctrine was crumbling to dust. Men and women stood equal in the eyes of the criminal law. Subordination of wives was not a legal legal dogma anymore. Signs of this change had been visible in earlier case law. In 1854 in Pennsylvania, a woman named Samantha Hutchinson was indicted "as a common scold." She was convicted, but the appellate court threw the case out. How could there be behavior, the court wondered, that was criminal "when acted by a woman, and innocent and lawful when acted by a man"? In the age of "barbarism" women were regarded "as the slave and not the companion of man." That was the age "when women were burnt as witches, and men had their ears nailed to a pillory." Under "Christian civilization" women were ent.i.tled to "equality of right and consideration." dogma anymore. Signs of this change had been visible in earlier case law. In 1854 in Pennsylvania, a woman named Samantha Hutchinson was indicted "as a common scold." She was convicted, but the appellate court threw the case out. How could there be behavior, the court wondered, that was criminal "when acted by a woman, and innocent and lawful when acted by a man"? In the age of "barbarism" women were regarded "as the slave and not the companion of man." That was the age "when women were burnt as witches, and men had their ears nailed to a pillory." Under "Christian civilization" women were ent.i.tled to "equality of right and consideration."18at The Woman Victim Whatever this Pennsylvania judge may have thought, and however the formal law put it, the "companion of man" was very far from equality with her companion in actual fact. Women were, for one thing, disproportionately victimized, as we have said. Men raped, abused, and beat thousands of women. Domestic violence was an everyday matter, and overwhelmingly it ran in one direction, that is, from man to woman, not the other way around. The formal law, of course, condemned brutality toward women, although its att.i.tude toward wife-beating, as we shall see, was a shade ambivalent. Rape was a felony, and penal codes took it very, very seriously. In many states it carried that dread sign of seriousness, the death penalty.19 Brutality and a.s.sault were crimes, too. But women had almost no voice in defining these crimes or in shaping the law of rape or domestic violence. They had little or no voice in enforcement strategies or policy. There was a women's rights movement in the nineteenth century, but it was fighting an uphill battle, and on the whole a losing one. Men who beat women, who hara.s.sed them, who raped them, were arrested by men, tried by men, sentenced by men; and in many ways, the system looked at the whole process through men's eyes, using men's standards and men's consciousness. Brutality and a.s.sault were crimes, too. But women had almost no voice in defining these crimes or in shaping the law of rape or domestic violence. They had little or no voice in enforcement strategies or policy. There was a women's rights movement in the nineteenth century, but it was fighting an uphill battle, and on the whole a losing one. Men who beat women, who hara.s.sed them, who raped them, were arrested by men, tried by men, sentenced by men; and in many ways, the system looked at the whole process through men's eyes, using men's standards and men's consciousness.

Nowhere was this as clear as in the law of rape. The flat, legalistic words of the law books covered over male biases and a.s.sumptions. For one thing, the law really protected only "respectable" white women (and their menfolk). Women who were not "respectable," or who were black, or Native American, were effectively outside the circle of protection. Of course, the words of the statutes never said said as much, but that was the practical result; it was rare for poor or black women to seek or get justice after rape. as much, but that was the practical result; it was rare for poor or black women to seek or get justice after rape.20 In general, too, men and women had, on the whole, different ideas about what const.i.tuted force, violence, unfair coercion; and women's ideas were not the ones translated into law, or taken into account there. In general, too, men and women had, on the whole, different ideas about what const.i.tuted force, violence, unfair coercion; and women's ideas were not the ones translated into law, or taken into account there.

Rape was a cla.s.sic crime, with a long history behind it. Every state had its own statute, from early on. Rape was violent, nonconsensual intercourse: it was a crime to "ravish," as a New York law of 1787 put it, "a married woman, or maid, or any other woman." Other acts, too, were labeled rape. The New York statute made it rape to "know and abuse any woman child, under the age of ten years . . . unlawfully and carnally." This was so-called statutory rape: s.e.x with a child was taboo, and "consent" was no defense at all. A special provision applied to rich women, women with "substance," either in "goods moveable" or "in lands and tenements" or who were "heirs apparent unto their ancestors." If some villain wanted their "lucre," took them against their will, and either married them or "defiled" them, this, too, was a felony, and, like rape, was punishable by death.21 The language of the rape laws became less archaic over time, but the formal law did not change very much before 1900. The language of the rape laws became less archaic over time, but the formal law did not change very much before 1900.22 The southern states retained the death penalty for rape. In Alabama, for example, the jury had discretion to decide between death or life imprisonment. The southern states retained the death penalty for rape. In Alabama, for example, the jury had discretion to decide between death or life imprisonment.23 We have already seen the role of rape on the southern racial code. To convict of rape, North or South, the law required proof of "penetration." Nothing short of this would do.au (Southern lynch mobs were less fussy.) And penetration had to be violent. Consent was a defense to rape, since the law required the "carnal knowledge" to occur "forcibly and against her will." (Southern lynch mobs were less fussy.) And penetration had to be violent. Consent was a defense to rape, since the law required the "carnal knowledge" to occur "forcibly and against her will."25 But the yardstick, in practice, was what the average male But the yardstick, in practice, was what the average male considered considered consent; and there is no reason to think that this was the same as what the average woman might think. "Just say no" was not official doctrine. The law required the woman to put up a real fight; anything less was considered a kind of grudging consent. Popular culture glorified the woman who defended her honor-even to the death. Thus, in 1894 Clara Casper, a seventeen-year-old of Fort Lee, New Jersey, "fought for her release until her strength gave way, finally fainting"; and Minnie Rauhauser, also seventeen, of New York City, fought off the advances of William Miller, a toolmaker. He cut her throat "from ear to ear," and thus she died, according to the consent; and there is no reason to think that this was the same as what the average woman might think. "Just say no" was not official doctrine. The law required the woman to put up a real fight; anything less was considered a kind of grudging consent. Popular culture glorified the woman who defended her honor-even to the death. Thus, in 1894 Clara Casper, a seventeen-year-old of Fort Lee, New Jersey, "fought for her release until her strength gave way, finally fainting"; and Minnie Rauhauser, also seventeen, of New York City, fought off the advances of William Miller, a toolmaker. He cut her throat "from ear to ear," and thus she died, according to the New York Times, New York Times, "bravely in defense of her honor." "bravely in defense of her honor."26 A woman who yielded, even under pressure, had really no right to complain. A woman was supposed to resist with every ounce of her strength. A woman who yielded, even under pressure, had really no right to complain. A woman was supposed to resist with every ounce of her strength.

The reported rape cases underscore this point. Charles Dohring, of New York, was convicted of raping Frederica Brussow, a servant, fourteen years old, in 1874. He trapped her (she said) in the barn, fastened the door, and threw her down on the ground; she started to cry, and he promised to "buy her a new dress" if she let him have his way. She told him she was afraid of getting "in the family way"; no problem, he said, he was "an old man." She "cried out and tried to get away but could not, as he held her down."27 Had she resisted enough? A woman must use (said the court) the "utmost resistance," the "greatest effort of which she is capable . . . to preserve the sanct.i.ty of her person." Resistance must go to the point "of being overpowered by actual force, or of inability from loss of strength longer to resist, or from the number of persons attacking resistance must be dangerous or absolutely useless, or there must be duress or fear of death." After all, this was what one had a right to expect; what woman (said the judges) would not be so "revoltingly unwilling" to be raped that she would not "resist so hard and so long as she was able"?28av In theory, violating any woman, even a prost.i.tute, was rape; but, as we have said, the practice was rather different. At least one southern court flatly rejected the idea that there could be such a thing as the rape of a black slave. After slavery died, southern courts (and lynch mobs) wreaked horrible revenge on black men accused of "defiling" white women; white-on-black rape was, apparently, rarely if ever prosecuted. But white or black, if a woman was not "chaste," not respectable, she had little hope of bringing a rapist to the bar of justice. The statutes did not, of course, make this point. Technically, it was a question of evidence, and a question of convincing a jury. But in actuality, the law protected "the unsullied virgin and the revered, loved and virtuous mother." One could hardly expect it to defend the "lewd and loose prost.i.tute ... whose arms are open to the embraces of every coa.r.s.e brute who has money."30 It is very hard to get accurate figures on rape. This is true today, but even more hopeless for the past. The law was tilted away from the concerns of women victims, which discouraged these victims from coming forward.aw "Respectable" women were very reluctant to report rapes, because of shame, prudery, the trauma of the legal process, and the stigma that attached itself to the victim. And women who were not "respectable" were in no position to complain. What does seem clear is that rape was always among the least-reported, least-prosecuted, and least-punished of the major crimes. "Respectable" women were very reluctant to report rapes, because of shame, prudery, the trauma of the legal process, and the stigma that attached itself to the victim. And women who were not "respectable" were in no position to complain. What does seem clear is that rape was always among the least-reported, least-prosecuted, and least-punished of the major crimes.

Virtue and Seduction Rape was a violent crime, but the core of the crime was not violence; it was defilement. As a Georgia court put it, the "citadel" of a woman's character was "virtue; when that is lost, all is gone . . . She esteems herself as put to the ban of society, and as incapable of deeper degradation."31 s.e.x except with her husband "ruined" a woman, destroyed her life's chances, made her unfit for polite society. "Virtue" meant chast.i.ty for an unmarried woman, total fidelity for a married one. Loss of virtue was an unparalleled catastrophe-the worst thing that could befall a respectable woman. Whether these women themselves thought so, of course, is another question; basically, n.o.body asked them. s.e.x except with her husband "ruined" a woman, destroyed her life's chances, made her unfit for polite society. "Virtue" meant chast.i.ty for an unmarried woman, total fidelity for a married one. Loss of virtue was an unparalleled catastrophe-the worst thing that could befall a respectable woman. Whether these women themselves thought so, of course, is another question; basically, n.o.body asked them.

Themes of virtue and ruin underlie the statutes on rape. So, if a man "wilfully and maliciously" has "carnal knowledge of a married woman," by "pretending to be her husband," the act must be punished as if it were rape (according to a Tennessee law). This statute also contained a clause, quite typical, that made it a crime to have "carnal knowledge" of a woman by "administering to her any substance, or by any other means producing such stupor, imbecility of mind, or weakness of body, as to prevent effectual resistance."32 Men's att.i.tudes toward loss of virtue seem somewhat hysterical to us in retrospect. Occasional cases of s.e.xual trickery probably reinforced these att.i.tudes. In an interesting Michigan case, the defendant Moran "violated" a girl of sixteen, who had been delivered to him for treatment for consumption, a disease Moran claimed to be "skilled" at handling. He told her a wild story about her condition; her uterus was "inverted," which was a most perilous situation. He could either operate, he said, which would probably kill her, or he could fix everything through the less dangerous method of "s.e.xual connection."33 In a Ma.s.sachusetts case, Charles Stratton gave a young woman figs to eat; they contained "a large quant.i.ty of cantharides" and made her very sick. Charles did not deny doping up the figs but said, in his defense, that he thought the drugs were "love powders" and "perfectly harmless." In a Ma.s.sachusetts case, Charles Stratton gave a young woman figs to eat; they contained "a large quant.i.ty of cantharides" and made her very sick. Charles did not deny doping up the figs but said, in his defense, that he thought the drugs were "love powders" and "perfectly harmless."34 These were not the standard ways to seduce a woman. A more humdrum sort of trickery and artifice underlay the crime of seduction-a criminal code entry that supplemented civil suits for seduction, and for breach of promise of marriage, and gave these added bite. Under a New York statute of 1848, any man who "under promise of marriage" seduced or had "illicit connexion with any unmarried female of previous chaste character" could be sentenced up to five years in prison.35 A Georgia statute expressed almost poetic wrath: a man was guilty if "by persuasion and promises of marriage, or other false and fraudulent means" he was able to "seduce a virtuous unmarried female, and induce her to yield to his l.u.s.tful embraces, and allow him to have carnal knowledge of her." A Georgia statute expressed almost poetic wrath: a man was guilty if "by persuasion and promises of marriage, or other false and fraudulent means" he was able to "seduce a virtuous unmarried female, and induce her to yield to his l.u.s.tful embraces, and allow him to have carnal knowledge of her."36 These laws were not dead letters; there is a decent sprinkling of cases among the law reports, some of them of unusual interest. Walter Clark was convicted of seducing Alice J. Morey "under ... a promise of marriage" in Michigan in the 1870s. The state tried to show three separate acts of "illicit intercourse." But, said the appellate court, s.e.x acts numbers two and three could not be considered seduction, since after s.e.x act number one, Alice was obviously no longer "chaste."ax Walter also argued that Alice and her parents were plotting to "inveigle" him into marriage. He also disputed her account of the events. One of the acts of "illicit intercourse" took place, supposedly, in a buggy; Walter tried to show, by medical evidence, that s.e.x in a buggy was "highly improbable if not impossible." He succeeded in winning a new trial. Walter also argued that Alice and her parents were plotting to "inveigle" him into marriage. He also disputed her account of the events. One of the acts of "illicit intercourse" took place, supposedly, in a buggy; Walter tried to show, by medical evidence, that s.e.x in a buggy was "highly improbable if not impossible." He succeeded in winning a new trial.37 The core idea of the seduction statutes pops up elsewhere in criminal codes as well. An Ohio statute, pa.s.sed in 1886, applied to any "male person over twenty-one years of age" who was a "superintendent, tutor or teacher in a private, parochial or public school, or a seminary . . . or instructor of any female in music, dancing, roller skating, athletic exercise, or any branch of learning." It was a crime for this "male person" to have "s.e.xual intercourse, at any time or place," with a "female" who was "under his instruction," even though the intercourse was "with her consent." A l.u.s.tful tutor could serve from two to ten years in the penitentiary. 38 38 The law, in effect, conclusively presumed that the tutor was a vile seducer, the pupil an innocent victim. Men were, after all, politically and socially dominant. And, in an age of double standards, women suffered far more than men from loss of innocence. The law, in effect, conclusively presumed that the tutor was a vile seducer, the pupil an innocent victim. Men were, after all, politically and socially dominant. And, in an age of double standards, women suffered far more than men from loss of innocence.

Men could, in short, be sent to jail for seduction, and some few men were. But this was hardly the real point of the laws. A woman could use seduction laws as a crude crowbar to force a man to marry her. This was hardly the way to begin a lifelong romance, but it was sometimes effective, especially if the woman was pregnant and faced social disaster. In 1867, an instructive account in the Police Gazette Police Gazette ran under the heading ALL'S WELL THAT ENDS WELL. ran under the heading ALL'S WELL THAT ENDS WELL.39 The story was as follows. People in Troy, New York, were "shocked" to learn that young James B. Hoyt had "been playing fast and loose with the affections of a charming young lady, a Miss Law." Law had allowed herself to be "overcome," perhaps because of "specious promises of marriage." The young man "refused to fulfil his promise"; there was nothing left to do but "apply to the young libertine the screws of the law." He was indicted and put on trial. The story was as follows. People in Troy, New York, were "shocked" to learn that young James B. Hoyt had "been playing fast and loose with the affections of a charming young lady, a Miss Law." Law had allowed herself to be "overcome," perhaps because of "specious promises of marriage." The young man "refused to fulfil his promise"; there was nothing left to do but "apply to the young libertine the screws of the law." He was indicted and put on trial.

The trial, in a crowded courtroom, went badly for Hoyt. In desperation, he proposed "an offer of marriage." The young lady thought it over-her sisters advised against it-and then said yes. Love "won the victory over reason." The courtroom cheered when the Reverend Dr. Baldwin arrived "to perform the marriage ceremony." The reverend did his stuff, the "prison gates" flew open, Hoyt was free, and the lovebirds "left the courtroom arm in arm."

This cautionary tale was not unique. In a Michigan case in 1888, Kate Morrow, of s.h.i.+awasee County, accused William Gould of "seducing and debauching her." On the day scheduled for trial, Gould married Kate during the court's lunchtime recess before a justice of the peace. But at seven o'clock that evening, he took "the east-bound train for Port Huron," deserting his wife. Gould was caught, arrested, tried, and convicted. But his conviction was reversed on appeal: the marriage, fleeting and loveless though it might have been, was enough to remove the criminal taint from Gould.40 These public soap operas, and the law behind them, told an important moral story. They also reflected an image of the respectable woman. She was pure, chaste, delicate, a precious flower to be protected from the buffeting of a rude and masculine world, a tropical bird in a silver cage. Society, through its legal system, had taken on the duty of protecting her honor and her sensibilities. Virtue and chast.i.ty were pearls of inestimable value.

These themes ran particularly deep in the legislation of the southern states. It was an offense under the law of Alabama to use "abusive, insulting, or obscene language" in the "presence or hearing of any female," or to "wilfully disturb" any women "at a public a.s.sembly, met for instruction or recreation, or in a railroad car, steamboat, or in any other public conveyance, or at a depot [or] landing" by "rude or indecent behavior, or by profane or obscene language."41 Indeed, in Alabama the high court upheld the conviction of a man named Weaver, who, when asked to get out of his ex-wife's home, flashed back, in a rude and angry voice, "I'll go when I G.o.d d.a.m.n please." Indeed, in Alabama the high court upheld the conviction of a man named Weaver, who, when asked to get out of his ex-wife's home, flashed back, in a rude and angry voice, "I'll go when I G.o.d d.a.m.n please."42 Dillard v. Georgia (1870) was a more telling case. (1870) was a more telling case.43 The accused, James T. Dillard, asked Mary S. Sanders (a married woman) to "go to bed" with him. He was fined one hundred dollars. An appeals court upheld his conviction. The statute "is intended to protect females from insult." And what "higher insult to a virtuous woman can be conceived of than the language used in this case"? The statute also had another function. Friends and relatives of a woman who had been "unlawfully shocked, or whose feelings have been wounded" would feel an almost instinctual urge to avenge her honor: the law gave them a nonviolent alternative. The accused, James T. Dillard, asked Mary S. Sanders (a married woman) to "go to bed" with him. He was fined one hundred dollars. An appeals court upheld his conviction. The statute "is intended to protect females from insult." And what "higher insult to a virtuous woman can be conceived of than the language used in this case"? The statute also had another function. Friends and relatives of a woman who had been "unlawfully shocked, or whose feelings have been wounded" would feel an almost instinctual urge to avenge her honor: the law gave them a nonviolent alternative.

The Unwritten Law The violent alternative was also possible. Adultery and seduction were evils, and the wages of these sins were ruination and, very possibly, death. Adultery and seduction were also, of course, highly attractive. The popular press, especially the lower levels of it, fed the public stories of seduction, elopement, and attempted rape; also murders and a.s.saults with themes of s.e.xual jealousy and revenge. The National Police Gazette National Police Gazette, from the mid-1840s on, was a potent vehicle for such stories-stronger stuff than usually appeared in print, told luridly with pictures and a thinly disguised prurient leer. A typical headline (from 1878) read as follows: TERRIBLE TALE. ILLICIT LOVE AND ITS DIREFUL CONSEQUENCES.... A HUSBAND'S JEALOUSY.... MURDER OF HIS WIFE AND HER PARAMOUR."44 The so-called "unwritten law" decreed that a man had the right to avenge the s.e.xual dishonor of a wife, mother, daughter, or sister. It is hard to pin a starting date onto so elusive an object as an "unwritten law," but this one apparently crept into criminal practice around 1840. The notorious trial of Congressman Daniel Sickles in 1859 for killing Philip Barton Key gave it a dramatic push forward. Key was the lover of Sickles's young wife. A jury acquitted Sickles, and the unwritten law was undoubtedly the primary reason.45 In the later years of the century, dozens of men were acquitted in more or less similar cases. Their lawyers used various legal approaches: self-defense, temporary insanity, and other dodges, but the real defense, sometimes made explicit in pa.s.sionate speeches to juries, was the unwritten law.46 Many of these indignant and outraged husbands were notorious philanderers themselves (it was certainly true of Sickles), but this seemed to make little or no difference to the (all-male) juries, since, after all, boys will be boys. Many of these indignant and outraged husbands were notorious philanderers themselves (it was certainly true of Sickles), but this seemed to make little or no difference to the (all-male) juries, since, after all, boys will be boys.

The unwritten law was thus a law for men only, on the whole. Women were not supposed to avenge themselves on husbands, kill mistresses, or that sort of thing. What a woman's husband did behind her back (or even flagrantly) did not destroy her sense of personal honor. She was supposed to grin and bear it. It was only when her own s.e.xual virtue was at stake that violence might possibly possibly be in order. Most women who killed former lovers were, in fact, convicted. be in order. Most women who killed former lovers were, in fact, convicted.47 Kate Southern, a Georgia wife, stabbed her husband's mistress to death; she was convicted and sentenced to death. Kate Southern, a Georgia wife, stabbed her husband's mistress to death; she was convicted and sentenced to death.48 By way of contrast, a different fate was in store for an "intelligent-looking young lady" who turned herself in to the Boston police in 1858. Her "suitor" had made her "a solemn promise of marriage, had accomplished her ruin," and then, in her "misfortune" (that is, her pregnancy), abandoned her. Desperate, she made ready a "double-barrelled pistol," loaded both barrels (his and hers), and shot him. She succeeded only in wounding him. On these facts, the grand jury refused to indict. The poor girl was discharged, taking refuge under the roof of her "kind father," while the villainous lover carried in his body a "leaden memento of his perfidy." By way of contrast, a different fate was in store for an "intelligent-looking young lady" who turned herself in to the Boston police in 1858. Her "suitor" had made her "a solemn promise of marriage, had accomplished her ruin," and then, in her "misfortune" (that is, her pregnancy), abandoned her. Desperate, she made ready a "double-barrelled pistol," loaded both barrels (his and hers), and shot him. She succeeded only in wounding him. On these facts, the grand jury refused to indict. The poor girl was discharged, taking refuge under the roof of her "kind father," while the villainous lover carried in his body a "leaden memento of his perfidy."49 The women who were "protected" by seduction laws, and whose honor was the subject of the unwritten law, were white and middle cla.s.s. They were not chattels; n.o.body could "own" them. But the laws against insulting or victimizing these women did carry a whiff of the property idea about them. Such an odor, almost overpowering, rises from the words of a Texas law that made homicide "justifiable" if a husband killed someone caught red-handed (so to speak) "in the act of adultery with the wife."50 This statute stayed on the books in Texas until the 1970s. This statute stayed on the books in Texas until the 1970s.51 Domestic Violence The odor of property is also strong in the laws relating to wife-beating. Aggravated a.s.sault was a crime in every state, but wife-beating was taken much less seriously. Judges, particularly in the first half of the nineteenth century, tended to think of this as a mere personal or domestic matter. The law should stay out, so long as the beating was "moderate," that is, only a matter of discipline, something more or less on a par with "correcting" a child.52 A writer in 1838 suggested, somewhat facetiously, that "the punishment of death" ought to be meted out "for all persons who interfered in the quarrels of man and wife. Experience, that tutor of us all, has taught us, that judges, jurors, and other officers of the court, are the only sufferers from such accusations." A writer in 1838 suggested, somewhat facetiously, that "the punishment of death" ought to be meted out "for all persons who interfered in the quarrels of man and wife. Experience, that tutor of us all, has taught us, that judges, jurors, and other officers of the court, are the only sufferers from such accusations."53 Ball Fenner, writing about the Boston courts around 1850, noted that a "brute in human form" who undertook to "chastise a vicious horse" would end up in prison, but, he added, not "one out of a hundred" of the men who abused or beat their wives (unless the "brute"maimed or blinded her) was made to answer for his crime; and if he was, in fact, brought to court, "he is sure of getting off by the payment of a small fine," say, three dollars and costs. Ball Fenner, writing about the Boston courts around 1850, noted that a "brute in human form" who undertook to "chastise a vicious horse" would end up in prison, but, he added, not "one out of a hundred" of the men who abused or beat their wives (unless the "brute"maimed or blinded her) was made to answer for his crime; and if he was, in fact, brought to court, "he is sure of getting off by the payment of a small fine," say, three dollars and costs.54 In the course of the century, there was a certain s.h.i.+ft in doctrine. In the later years, courts were less likely to laugh the matter off or find excuses for wife-beating. Ultimately, a number of states pa.s.sed statutes that made wife-beating a crime.55 The old att.i.tudes seemed barbarous; this sense was perhaps connected to the growing revulsion against punis.h.i.+ng the The old att.i.tudes seemed barbarous; this sense was perhaps connected to the growing revulsion against punis.h.i.+ng the body body, which was a strong aspect of nineteenth-century law reform. (See chapter 3.) Paradoxically, however, some people in the anti-wife-beating movement voiced a demand to bring back the whipping post. Perhaps the crime seemed primitive-the punishment should be equally primitive. At any rate, Nevada pa.s.sed a law in 1877 that ordered every county to erect "in some public locality at the county seat" a "substantial wooden post or stone pillar." Any "male person" above eighteen "who shall willfully and violently strike, beat, or torture the body of any maiden or woman" sixteen or older was to be "lashed in a standing posture to the post or pillar" for at least two hours (but not more than ten), wearing on his chest "a placard bearing in large Roman characters the words 'Woman beater' or 'Wife beater' as the case may be."56 There is no evidence this law was actually enforced. Other states went further and called for actual flogging of men who beat their wives. There is no evidence this law was actually enforced. Other states went further and called for actual flogging of men who beat their wives.57 Wife-beating, then, could not be condoned, and was was not condoned; but it was quite another thing to see it as a serious social problem. Laws forbidding violence against women expressed an idea and an ideal; in practice it is not clear if these laws accomplished very much. Some men did go to jail. A study in Pennsylvania in the 1880s identified 211 wife-beaters who were put away for an average of three months each behind bars. not condoned; but it was quite another thing to see it as a serious social problem. Laws forbidding violence against women expressed an idea and an ideal; in practice it is not clear if these laws accomplished very much. Some men did go to jail. A study in Pennsylvania in the 1880s identified 211 wife-beaters who were put away for an average of three months each behind bars.58 But the police were notoriously reluctant to make arrests in what they considered family squabbles. Some wives were reluctant to complain, or ashamed, or simply terrified of their brutal husbands. Sometimes it was outsiders-friends, relatives, church groups-who brought about enforcement; sometimes even vigilante groups, like the whitecaps. But the police were notoriously reluctant to make arrests in what they considered family squabbles. Some wives were reluctant to complain, or ashamed, or simply terrified of their brutal husbands. Sometimes it was outsiders-friends, relatives, church groups-who brought about enforcement; sometimes even vigilante groups, like the whitecaps.

Most of those arrested for this crime were immigrants and blacks. "Nice people" apparently did not wash their dirty linen in public. A man who beat his wife was supposed to be a brutal aberration. The popular image of the wife-beater was a lower-cla.s.s drunk, an undisciplined beast with stubble on his chin. It was not often admitted that "nice" men beat wives, too; that wife-beating was epidemic and a sign of something rotten in the relations.h.i.+p between men and women in this culture. It was twentieth-century feminists who put forward the theory that male dominance itself was the problem, that is, "chronic battering of a person of inferior power" by the lord and master.59 Wife-beating was, by and large, a secret vice, which makes it hard to chart its ebbs and flows. Did the general mobility and weakening of authority lead to more wife-beating or less? Was it more, because of some sort of crisis within the family and some men's loss of restraint? Was it less as women became, over time, relatively more empowered? Wife-beating was, by and large, a secret vice, which makes it hard to chart its ebbs and flows. Did the general mobility and weakening of authority lead to more wife-beating or less? Was it more, because of some sort of crisis within the family and some men's loss of restraint? Was it less as women became, over time, relatively more empowered?

Women's Crimes A few crimes were specific to women, or dominated by women. Prost.i.tution is the best example: the oldest profession, as the phrase goes. Other old professions gained legitimacy and prestige over time, but not this one. It was never accepted as a way to earn an honest dollar. It was always a crime to keep a "disorderly house." We have already met Elizabeth Martin, "a very Low Notorious Wicked Woman . . . and Reputed a Common Wh.o.r.e" who consorted even with "Negro Slaves" and was ordered out of New York City.60 There was no change after independence: the business of prost.i.tution remained outside the law in every state and every city. There was no change after independence: the business of prost.i.tution remained outside the law in every state and every city.

For much of the century, some states lacked laws that explicitly explicitly criminalized prost.i.tution. Too much should not be made of this. It was a crime to own and operate a brothel; and there were laws against "nightwalkers" and "vagrants," and against "lewd and lascivious" behavior, all of which provided more than enough ammunition for sweeping prost.i.tutes into the nets of the law-whenever the law cared to do so. An ordinance of Milledgeville, Georgia, ordered the arrest of "women of disreputable character, commonly known as 'street walkers,' who may be found standing or loitering about the streets or stores of this city at night, and who cannot prove that they are on unavoidable business." One woman arrested in Milledgeville had the effrontery to appeal her conviction to the Georgia Supreme Court, which labeled her as "one of the most shameless of the cla.s.s of depraved women." The state had no statute against "nightwalking," but, said the court, "such practices were inhibited by the common law," and in any event, they "tend strongly to vagrancy, lewdness and other offenses." The court also held that the trial court could admit evidence of the woman's "general character"-that is to say, she could be convicted on the basis of gossip, rumor, and public understanding. criminalized prost.i.tution. Too much should not be made of this. It was a crime to own and operate a brothel; and there were laws against "nightwalkers" and "vagrants," and against "lewd and lascivious" behavior, all of which provided more than enough ammunition for sweeping prost.i.tutes into the nets of the law-whenever the law cared to do so. An ordinance of Milledgeville, Georgia, ordered the arrest of "women of disreputable character, commonly known as 'street walkers,' who may be found standing or loitering about the streets or stores of this city at night, and who cannot prove that they are on unavoidable business." One woman arrested in Milledgeville had the effrontery to appeal her conviction to the Georgia Supreme Court, which labeled her as "one of the most shameless of the cla.s.s of depraved women." The state had no statute against "nightwalking," but, said the court, "such practices were inhibited by the common law," and in any event, they "tend strongly to vagrancy, lewdness and other offenses." The court also held that the trial court could admit evidence of the woman's "general character"-that is to say, she could be convicted on the basis of gossip, rumor, and public understanding.61 St. Louis, Missouri, between 1870 and 1874 was a single and somewhat instructive exception to the general rule. During those years the city ran an experiment in legalization.62 In 1865, St. Louis had a total population of about 300,000; by police estimate, the city's prost.i.tute population was 2,500. There were the usual raids on wh.o.r.ehouses, but they did little more than scatter the inmates, who "took private rooms, paraded the streets, and openly plied their infamous trade." These were the words of Dr. William L. Barrett, the city's chief health officer. Moreover, according to Barrett, when the brothels were closed, men were encouraged to vent their l.u.s.t on innocent women instead. In 1865, St. Louis had a total population of about 300,000; by police estimate, the city's prost.i.tute population was 2,500. There were the usual raids on wh.o.r.ehouses, but they did little more than scatter the inmates, who "took private rooms, paraded the streets, and openly plied their infamous trade." These were the words of Dr. William L. Barrett, the city's chief health officer. Moreover, according to Barrett, when the brothels were closed, men were encouraged to vent their l.u.s.t on innocent women instead.63 It all seemed so futile. Perhaps-just perhaps-regulation might be better than an outright ban. There was the somewhat dubious example of France, which had a licensing system for prost.i.tutes. But Americans were hardly impressed by what went on in such a wicked country. On the other hand, people were coming to see prost.i.tution as a problem of public health, and not just a problem of sin or vice. In the 1860s and 1870s, police and public officials in some cities had made some favorable noises about mandatory medical examinations for prost.i.tutes. Bills to license prost.i.tution in New York City were proposed in 1867, 1868, and 1871, but Albany said no. St. Louis, however, got a new state charter in 1870; the health and police boards of the city persuaded the state to give the city a flock of new powers. These included the power to "suppress prize fighting, c.o.o.n fights, dog fights, chick and c.o.c.k fights, gaming and gambling houses"-and the power to "regulate," as well as suppress, "bawdy or disorderly houses, houses of ill-fame, or a.s.signation." 64 64 The city moved promptly to make use of this power. An ordinance was pa.s.sed, giving the police licensing authority over brothels. The Board of Health was given the right to examine prost.i.tutes for venereal disease. From the clergy came warnings about opening the "floodgates of pent-up l.u.s.t," warnings that St. Louis was in danger of importing the "deplorable standards of Parisian morals." But the public, by and large, seemed willing to try the experiment-at first. The authorities went busily to work: they registered 1,284 prost.i.tutes and licensed 136 brothels, 9 houses of a.s.signation, and 243 single rooms.

Yet three years later the law was dead-killed in Jefferson City, Missouri; the legislature amended the charter of St. Louis to destroy this n.o.ble experiment. What had gone wrong? Enforcement, to begin with, proved difficult, especially with the "lower" prost.i.tutes. Politically, trouble soon developed. Women's rights leaders denounced the system, which they felt was extremely unfair; it bore down on promiscuous women and did nothing about promiscuous men. The clergy roused themselves and kept up a drumbeat of criticism. The local newspapers switched sides: "regulating social vice," as one of them put it, "has shocked the moral sense of the people."65 Regulation, in other words, failed because it looked too much like a bargain with the devil; such bargains have never been popular on the overt, official level, in this country. Regulation was really another example of the Victorian compromise, but without the subtlety and indirection America seemed to prefer. The living law of prost.i.tution, of course, was nothing but a complex web of bargains with the devil. Covert, under-the-table recognition was one thing, formal formal recognition was another. The St. Louis experiment came too late in the century; it coincided, unfortunately, with the beginning of a new outburst of militant morality. The ordinance was doomed from the start; it was swimming against the tide. recognition was another. The St. Louis experiment came too late in the century; it coincided, unfortunately, with the beginning of a new outburst of militant morality. The ordinance was doomed from the start; it was swimming against the tide.

The dirty little secret of the century was not prost.i.tution itself, but the business business of prost.i.tution. Men (and women) ran houses as a business; policemen, from patrolmen to captains, were on the take. Most shocking of all (to some) was that many of the women looked on prost.i.tution as simply a job. They chose prost.i.tution over starvation, or grueling factory work at starvation wages. John H. Warren, Jr., a self-described reformer and detective, writing in the 1870s, put part of the blame on "love of ease and luxurious living." He wagged his finger at the "system of female education which fosters a contempt for the mother that delves among the pots and kettles in the kitchen, while the accomplished daughter just home from school, armed with her diploma, thumps away at the piano in the drawing room." of prost.i.tution. Men (and women) ran houses as a business; policemen, from patrolmen to captains, were on the take. Most shocking of all (to some) was that many of the women looked on prost.i.tution as simply a job. They chose prost.i.tution over starvation, or grueling factory work at starvation wages. John H. Warren, Jr., a self-described reformer and detective, writing in the 1870s, put part of the blame on "love of ease and luxurious living." He wagged his finger at the "system of female education which fosters a contempt for the mother that delves among the pots and kettles in the kitchen, while the accomplished daughter just home from school, armed with her diploma, thumps away at the piano in the drawing room."66 On one level, this is nothing but a piece of Neanderthal moralizing. Behind it, though, are hints of a complex web of contradictions: between the cult of success and the cult of female domesticity and subservience; between economic reality-women's need to earn their bread-and the myths of morality. On one level, this is nothing but a piece of Neanderthal moralizing. Behind it, though, are hints of a complex web of contradictions: between the cult of success and the cult of female domesticity and subservience; between economic reality-women's need to earn their bread-and the myths of morality.

Prost.i.tution, like all illegal activities, was a precarious business, since its survival depended so much on informal bargains and corruptions. Its relations.h.i.+p with criminal justice was necessarily jagged and stormy. There were sporadic spasms of enforcement, usually stimulated from outside the police department: sometimes it came from the top-down (from city officials, at the demands of moral leaders); sometimes it was the voice of the poeple, or, to put it simply, the mob. In Boston in August 1823, Mayor Josiah Quincy led a posse of volunteers against the vice center of Boston, known as "the Hill," in the West End. Ma.s.s arrests of prost.i.tutes continued through the fall of 1823. Two years later, a mob of hundreds of men in blackface, carrying pitchforks, tin pans, drums, and whistles, attacked brothels in the North End, beginning with "the Beehive," a three-story building on North Margin Street, where a widow, Marm Cooper, ran a house of prost.i.tution.67 In Detroit, Michigan, in the 1860s, the police made frequent raids, particularly on lower-cla.s.s houses. Sometimes the superintendent of police himself led the attack. In 1866, there was a raid on twenty houses; more than fifty arrests were made. A state law of 1869 specified three years in the Detroit House of Correction for convicted prost.i.tutes over the age of fifteen.68 Despite these bursts of moral energy, enforcement officials adopted, for the most part, what one author has called a policy of "maintenance." After all, large numbers of respectable citizens had no real interest in rooting out this evil weed, or did not think it possible. They wished merely to control it, which could mean "driving prost.i.tution underground, confining it to specific areas, or prosecuting only its most disorderly or lowly haunts."69 A newspaper editorial published in 1892 put the point rather precisely. Prost.i.tution, the writer said, "is ineradicable." But, "if handled properly, it can be curtailed." "Houses of illfame" were tolerable, "so long as they are not located in respectable neighborhoods." The writer also made the "delicate" point that "such places" were "a necessary evil." What was "necessary" about the evil? Well, they ministered to the "pa.s.sions of men who otherwise would be tempted to seduce young ladies of their acquaintance."70 Thus, prost.i.tution helped maintain the "hydraulic" system of self-control and (male) discipline; it provided an outlet for overheated men. The flesh