Victorian America criminalized only public, notorious sin rather than private vice

Evidence

Colonial law had been deeply concerned with sexual conduct, especially fornication. The early nineteenth century was a kind of dead point, an armistice in the war against vice. Criminal justice was mostly concerned with property crimes, especially theft. Adultery (for example) remained a crime, but its nature had been subtly redefined. In some states it was illegal only if it was “open and notorious,” as we mentioned earlier. This was true of California, for example. What was illegal, then, was not sin itself—​and certainly not secret sin—​-​but sin that offended public morality. This was what we called the Victorian compromise: a certain toleration for vice; it was as if society shrugged its shoulders and accepted vice, grudgingly at least, but insisted that it stay underground, and mind its step. — Lawrence M. Friedman, A History of American Law, 3324

Categorization

• DEFINE: A crisp definition of the ‘Victorian compromise’ — the working concept that distinguishes private toleration from public moral offense in this era’s vice law.
• XREF: This moral-compromise structure parallels how the modern cruising/soliciting and zoning regimes keep vice spatially contained — and rhymes with ch30’s observation that litigation converts simple concepts into tangled doctrine. — connects to: Nineteenth-century vice laws against adultery went largely unenforced in practice — Lawrence M. Friedman and Grant M. Hayden, American Law: An Introduction, 817; A late-nineteenth-century crusade criminalized victimless vices like obscenity and gambling — Lawrence M. Friedman and Grant M. Hayden, American Law: An Introduction, 818; Late-twentieth-century law decriminalized what Victorian vice laws had criminalized — Lawrence M. Friedman, A History of American Law, 4293
• SHARE: For a crim-law or gender-studies friend who studies how ‘open and notorious’ clauses encode classed/raced tolerance.

Broader Connections

• Late-twentieth-century law decriminalized what Victorian vice laws had criminalized #qualifies (0.75) — Lawrence M. Friedman, A History of American Law, 4293