4
"Notorious Offenders"
Prostitutes and the Law

Around eight o'clock on the evening of Tuesday, March 27, 1855, Matilda Wade left her home at 107 Clark Street to walk a few blocks to her husband's place of business in Spring Street. As usual, the early evening's street activity livened as she approached the vicinity of Broadway. Mrs. Wade walked "quietly and peaceably" until she was stopped by a patrolman and told she was under arrest for being a vagrant and common prostitute. She then was taken along with nineteen other women to the eighth-ward station house, where she was booked. Mrs. Wade objected that she was not a prostitute and for years had lived at home and been supported by her husband. In spite of her protestations, she was not allowed to send for her husband, nor was she one of the fortunate five women who managed to obtain a release. Instead, she and fourteen other alleged prostitutes were locked in cells overnight.

The next morning the fifteen women, along with twenty-six others from ward fourteen, were paraded through the streets to the mayor's office, where "an expectant crowd awaited their arrival. "^[1] Led single file by police captains Turnbull and Kissner into the mayor's office, the forty-one women, whose ages ranged from sixteen to forty, were taken before Mayor Fernando Wood and Justice B. W. Osborne. Mayor Wood had initiated a full-fledged campaign against the city's streetwalkers, and Justice Osborne had been charged with enforcing the mayor's reform program.^[2] With the mayor's office serving as a court of law, the arresting officers presented their charges against the women.^[3] Of the eighth-ward

9.
Corner of Broadway and Duane. This busy intersection, as it appeared 
at mid-century, was well known for its many streetwalkers. As noted by Elizabeth 
Blackwell, first woman doctor in the United States, all women walking streets alone 
might be subject to annoyances from "unprincipled men." In describing her life in 
New York City in the 1850s, Blackwell stated that "some well-dressed man" would 
walk by her side on Broadway, saying in a low voice, "Turn down Duane Street." 
(Courtesy of the New-York Historical Society, New York City. Quotation from 
Wilson, Lone Woman, 296.)

women, one was discharged because her mother convinced Justice Osborne she would leave the city and take her daughter home. The other fourteen were convicted—ten had admitted working as prostitutes anywhere from two months to two years, and the remaining four, including Matilda Wade, were said to have "refused to tell" how long they had worked in the profession. From the fourteenth ward, nine were dismissed

10.
The "Black Maria." This etching of New York City's infamous prison van
 illustrates the variety of women who rode the van daily from police stations to 
prison after being arrested for vagancy/prostitution. (Courtesy of the New-
York Historical Society, New York City)

because the arresting officers were "unable to substantiate any charge against them," including one woman who had been forcibly taken into custody as she stepped from the streetcar, even though she had protested she was innocent and a married woman. The thirty-one women found guilty of being "notorious offenders" were convicted without trial, testimony, witnesses, examination, cross-examination, or the opportunity to employ counsel. All of the women arrested also apparently had been subjected to medical exams to determine if they had venereal disease.^[4] Each woman found guilty was sentenced to from one to six months in the penitentiary, with Matilda Wade one of the thirteen given the maximum sentence. The women were then taken to "the Tombs," or prison of detention, until they were transported in the Black Maria, the city's well-known large red caravan wagon, up Third Avenue to Sixty-first Street, where they were conveyed by ferry to Blackwell's Island. Mrs. Wade was then transferred from the penitentiary to the workhouse.

The next morning, Henry Wade, Matilda's husband, petitioned for a writ of habeas corpus. Mrs. Wade was brought before the court the

following day, Friday, where her case and one other were argued on behalf of thirty women, with the court's decision to be applicable to all.

Mrs. Wade was represented in court by a Mr. Tomlinson who had been hired by an anonymous citizen concerned over the abuse of civil liberties. Tomlinson argued on eight counts against the arbitrary manner in which the case had been handled from the initial arrest to final detention. He also requested that Mrs. Wade be released to her husband's custody until the judge made his pronouncement in the case. The custody request was denied, however, and Mrs. Wade was again locked overnight in the city prison.

Finally, after five days in prison, the arrests of Mrs. Wade and of twenty-nine other women incarcerated with her were found illegal, and she was released. The following week, the remaining jailed women were freed.

Even though the legality of the prostitution arrests was being challenged in widely publicized court proceedings, the police continued their nightly raids on alleged streetwalkers throughout that week. Furthermore, the press continued printing editorials supporting Mayor Wood's reform program and calling for new laws to make possible the ongoing arrest and incarceration of the many streetwalkers who were using "Broadway and other quiet thoroughfares . . . to advertise shameless immorality, [a practice] discreditable to our sense of propriety, and disgraceful to our age."^[5]

The Wade case and the public response to it bring into focus a number of issues surrounding the legal status and treatment of prostitutes in the nineteenth century, as well as practices regarding the legal treatment of non-prostitute women, especially the poor. Though prostitutes and non-prostitutes theoretically had different social and legal statuses, restrictions governing the behavior of both could blur the distinction. "Woman's sphere," albeit a middle-class construct, expressed a widely shared belief that woman's proper realm was the home; this belief found its way into the socio-legal system in the form of limitations on the jobs available to women, the places they could go, and the influence they had. Gender discrimination was both a cause and result of the devaluation of females, assuring women a secondary status in society. Moreover, a double standard in social and sexual mores served to buttress this secondary status and provided the basis for the social control of women as an "inferior group."

The nineteenth-century legal system, like the economic, political, and social systems, was founded on male dominance and control. Legislators, police officers, judges, prosecutors, and jurors all were exclusively male, and male-only suffrage withheld from women the possibility of contributing to the legal process on even the most basic level. Women's legal status was a result of what males decided it would be. Most nineteenth-century statutes affecting women reflected the ideal of woman as homemaker/wife/mother, setting forth a descending continuum of female behavior from the woman-ideal norm through various levels of deviance to the dissipated, diseased, poor, inebriated, whoring hag whose existence not only offended society but also violated a host of laws. The nineteenth-century mother, wife, or daughter, even if she dealt with the legal system from a position somewhat above that of the ultimately debased female, still could experience the impact of her secondary status in a paternalistic society when seeking legal recourse for domestic violence, seduction, or rape; or when practicing social independence, promiscuity, or prostitution.^[6]

Many nineteenth-century women compounded their legal difficulties by being poor. Unless in the care of a husband, father, or other male relative, most women had such limited income and such limited opportunities for economic betterment that they were part of the impoverished classes who were perceived to be degraded and unrespectable, not worthy of the legal consideration given the "better classes."

Thus, as women (often poor women), and as females who deviated from "proper" gender roles, prostitutes were the recipients of questionable legal treatment that was supported by anti-prostitution laws such as the vagrancy law and the disorderly-persons law, which were designed to codify prevailing social and moral values and control social disorganization and chaos. As the Times noted in editorials condemning public prostitution, at issue were matters both of "immorality" and "propriety."^[7] There was no question of competing social values—no one publicly argued the virtue of prostitution or proposed that there should be no laws controlling the practice. Prostitution, it was agreed, was immoral even if economically understandable, and its increasingly visible practice was a threat to the respectable community. Thus, prostitutes—especially streetwalkers—served both as symbols of and as scapegoats for the social uncertainty that accompanied the changing urban community in the mid-nineteenth century. Laws on prostitution

codified these attitudes, but such laws were never enforced, or even designed, systematically and effectively.

The Wade case pointed out some of the problems and shortcomings of nineteenth-century prostitution statutes. First was the generality and questionable legality of such laws. For example, the vagrancy act was so inclusive that it covered most of society's "dispossessed." A slight deviance or momentary misfortune—or, indeed, as Matilda Wade learned, wholly arbitrary political or police whim—could cause a woman to be ranked with the community's criminals.^[8] George Templeton Strong clearly anticipated the possible abuses of the law in a diary entry from March of 1855:

It enables any scoundrel of a policeman to lay hands on any woman whom he finds unattended in the street after dark, against whose husband or brother he may have a grudge, who may be hurrying home from church or from a day's work, or may have been separated by some accident from her escort, and to consign her for a night to a station house. Till morning no interference can liberate her; and if the policeman did make a mistake, the morning would find her disgraced for life, maddened perhaps by shame and mortification.^[9]

A second problem was the frequent and random arrests made of suspected prostitutes. As was illustrated in the spring of 1855, a political administrator such as Mayor Wood could devise and initiate a "reform" program and then for weeks, almost nightly, send law enforcement officials to round up hundreds of women, both prostitutes and non-prostitutes, whose only visible offense was walking alone on the streets. Such laws clearly made crimes of actions that no one in fact labelled criminal. One's "crime" commonly was poverty, the temporary lack of a job or a home, or being an unescorted woman on the street, though an unescorted male was free to walk the thoroughfares any time he chose. Furthermore, prostitution laws were applied inconsistently. "In the Sixth Ward," observed the Times , "the officers arrest every female vagrant found in the street, whether acting in a disorderly manner, or walking quietly alone; while in the Eighth, Fifth, and Third wards but such of them as speak to persons in the street, or act otherwise unbecomingly, are taken in custody."^[10] The Times also described a few individual cases:

The girl Harrington had neither the dress or air of a prostitute, but resembled more what she represented herself to be—a sewing girl. Alice Gray declared herself to be a cap-maker; and Ellen Johnson asserted most strenuously that she

11.
Woman Alone on Broadway. Nineteenth-century women found it "unsafe"
 to walk the streets unescorted, especially in the evening. Not only were they the 
objects of leering glances and immoral propositions, but under the law, any woman 
unaccompanied by a male was subject to arrest for vagrancy/ prostitution. (Courtesy 
of the New-York Historical Society, New York City)

resided with her parents at No. 33 Watt street, and was on her way home when arrested.

But neither tears or entreaties were of avail—they were all locked up, the officer in command being compelled to detain all persons committed to his charge. He is allowed no discretion in the matter, and cannot rectify the blunders of the ambitious patrolmen, if any such should be made.^[11]

Despite the recognized inconsistency, generality, questionable legality, randomness, and unfairness of the laws used to attempt to control prostitution, and despite repeated "blunders" associated with their enforcement and challenged by numerous lawsuits, there appears to have been an unwillingness by society to repeal or substantially change these laws. On the other hand, prostitution was not eliminated by statute, nor does it appear the practice was significantly circumscribed by legal codes. Although many prostitutes and other women who were arrested, if poor or uninformed, found themselves helpless in responding to the legal

system, there were many others, including many prostitutes, who effectively manipulated the system—through legal means, economic resources, connections, or sympathy. Thus, to fully understand the effects of the legal system on prostitution and the women who practiced the profession, we will first look at the codes—why they were passed, what values retained them, what conditions altered them, and how they were enforced. Then, in the following chapter, we will explore how the prostitutes responded to the laws, to the legal system, and to the law enforcers.^[12]

The Laws and Prostitution

Throughout the eighteenth century and the early nineteenth century, prostitutes were arrested and incarcerated under laws that defined them as vagrants. Under laws enacted in the 1770s when New York became a state, they also could be arrested as "disorderly persons." In 1822, however, the year New York adopted a new constitution, the legal designation of prostitutes as common-law vagrants was abrogated, and under the general law of the state they were given the sole designation of disorderly persons. This designation remained the primary statutory grounds for arresting prostitutes in New York state for several decades. Disorderly persons included "all common prostitutes, all keepers of bawdy houses or houses for resort of prostitution, drunkards, tipplers, gamesters or other disorderly persons . . . on complaint made on oath [by anyone] that one is disorderly."^[13] The inclusion here of keepers of taverns with those who keep bawdy houses or gambling dens suggests how central was the law's emphasis on disorder rather than prostitution or gambling per se.

In the case of a disorderly person, the general law of the state authorized a judge to demand bail for good behavior for one year or to commit the accused to jail for a period not exceeding sixty days or until the next meeting of the General Sessions Court. If there were a question of a violation of the bail, the disorderly person would be tried by a jury. Two justices could discharge an offender before the sitting of the General Sessions. The court was to investigate the charges and either dismiss or punish the offender. If found guilty of being a prostitute, the woman could be committed to prison for up to six months.^[14]

12.
Woman Being Charged as Vagrant. Prostitutes and unemployed 
women frequently were arrested on charges of vagrancy. If unable to persuade 
officers of the court of their ability to be cared for or to care for themselves, they
 were sentenced to up to six months in the penitentiary or workhouse. 
(Courtesy of the New-York Historical Society, New York City)

In 1830 the state legislature passed a new vagrancy law that continued to exclude prostitutes from its purview. Then, three years later, in 1833, the state legislature passed a special law relating to the vagrancy act that applied to New York City only. This law stated that "all common prostitutes who have no lawful employment whereby to maintain themselves" shall be considered vagrants and may be committed to either the almshouse or the penitentiary for six months.^[15] This wording ensured vagueness by suggesting "no lawful employment" as the only definition of prostitution, a description that would fit most women and was perhaps intended to fit most unemployed poor women. On the other hand, prostitutes who had other "lawful employment," who owned or worked in taverns or boarding houses or had jobs such as millinering, were exempted from the law's provisions if its wording had any meaning at all.

Interestingly, the 1833 law singled out New York City, while in other parts of the state, prostitutes continued to be designated "disorderly persons." The New York City prostitute, as vagrant, could be brought before the court on complaint of any person, including a police officer

on the street, with no preliminary proof or warrant of arrest being required. It was not necessary to provide a prostitute with the names or testimony of witnesses against her, and the presiding court officer alone had the power to try, convict, and punish the prostitute. In one case, the prostitutes from a raided brothel summoned their legal counsel to the police station, and when he argued that the magistrate's refusal to say why the women had been arrested was a denial of their rights, the judge replied that the clients had no rights because they were vagrants. The reporter covering the story noted that "this attitude is current among members of the bar in criminal practice as one of the jokes of the profession."^[16] Accused prostitutes and other so-called vagrants "had no rights" and thus no legal protections.

With so little proof and legal proceeding necessary for conviction and commitment to prison, officials found the vagrancy law an expedient tool for temporarily removing from New York City streets prostitutes and others identified as social problems. But that nineteenth-century public officials were willing to employ such extraordinary means, which mocked generally accepted civil and judicial protection, indicates that they must have believed they were facing extraordinary problems.

One such "problem" may have been the great influx of new people into New York at this time, especially foreigners and the poor. Between 1820 and 1830 the city's population had grown by over 73,000, a more than 60 percent increase. Between 1830 and 1835, the population increased by another 71,000, a growth rate of 35 percent in only five years.^[17] By 1833 this population trend caused civic leaders to worry about new threats they associated with foreigners and the poor. The special New York City vagrancy act offered one means of dealing with these problems.

New York City's vagrancy law applied to five classes of people— prostitutes, habitual drunkards, beggars, "loafers," and the diseased—all groups that it was believed threatened the social order, suffered from immoral tendencies, and were often foreign born. Although the statewide vagrancy law passed in 1830 would have included most of these groups, the key problem that provoked passage of the special city-only statute three years later was the perceived increase in prostitution in New York City at that time. New Yorkers had been made very aware of the prostitutes' presence in the city as a result of the controversy surrounding the publication of McDowall's 1831 report on prostitution, and, though McDowall's figures had been challenged, many accepted the fact that,

whether 10,000 or 1,000 in number, prostitution had become a major problem—and one that was no longer hidden from public view. Yet even in this atmosphere, the law stressed prostitution not as a distinct sexual crime, but as a departure from expected street decorum, similar to begging, being drunk, or just loafing.

The daily newspapers between 1830 and 1870 are filled with stories of prostitute arrests, most of which, if they mention a specific charge, list the offense as vagrancy/common prostitution. A tally of a sample of the cases reported in this period in the newspapers shows that the great majority were from the sixth ward, a ward known for the notorious Five Points, where drinking, gambling, and prostitution establishments abounded, but also a ward characterized by varied ethnic neighborhoods and extreme poverty.^[18]

By the 1850s, when cumulative records for arrests by wards are available in published police reports, the sixth ward still led in the number of arrests for vagrancy.^[19] The vagrancy totals in the police chief's semi-annual and quarterly reports do not distinguish male vagrants from female, but by checking the daily entries in the police blotters for lower Manhattan for one year from January 7, 1850, through December 30, 1850, in nearly 500 cases of females arrested for vagrancy/ common prostitution, only 7 had other wards listed, 82 had no ward listed, and the remaining approximately 400 were from the sixth ward.^[20] Daily police records for the first three months of 1855 noted a slightly different pattern: among 192 arrests for vagrancy/common prostitution, 36 percent were from ward four, a ward with a predominantly immigrant population, and 34 percent were from ward six; these two wards accounted for 70 percent of the vagrancy/prostitution arrests.^[21] Thus, it appears a woman was most likely to be assumed to be a prostitute or be arrested for vagrancy/prostitution if she was in an ethnically diverse neighborhood, especially if she was foreign and/or poor (table 14).

Several vagrancy cases during the period from 1830 to 1870 illustrate both the vulnerability of the prostitute under the vagrancy law and the legal problems that resulted from using a statute that was so general in scope that its constitutionality and justness were always open to question. The cases also demonstrate why the vagrancy law was ineffective in curbing prostitution.

One of the first cases challenging the 1833 vagrancy law was Emma Sands v. the People in 1838. The young Emma Sands had been arrested

as a common prostitute, convicted as a vagrant, and committed to six months in the penitentiary. She was brought before Recorder Robert H. Morris on a writ of habeas corpus to have the legality of her detention reviewed. Morris had been a member of the state assembly in 1833 when the vagrancy law was adopted for New York City and had voted in favor of the act. He also would be the judge to preside over the case of Matilda Wade in 1855.^[22]

In his review of the Sands case, Judge Morris pointed out "that the prisoner is not without resources for her support, that she is respectably connected, and that her father, a respectable citizen, is desirous if he can procure her release, to take her into his house, and provide for her."^[23] Morris found the vagrancy law unconstitutional and Sands's commitment void, and he ordered that she be discharged from the penitentiary. In challenging the vagrancy law, the main issue in the case for Morris was the improper use of the judicial process after the prostitute was arrested and incarcerated, not the method by which it was determined she was a prostitute who should be arrested. Morris stated that the vagrancy act, by delegating excessive powers to the justice court, denied the accused a trial by jury and, in effect, created a new kind of court which was not provided for by the state constitution. Morris also

noted that justices frequently, but without proper authority, gave early discharges to prisoners they had unjustly convicted and sentenced. Prisoners were released because the justices subsequently discovered that in the hasty proceedings at the police office or penitentiary, incorrect decisions had been made regarding the accused persons' guilt and/or sentencing. And he remarked that the New York state law that designated prostitutes as disorderly persons had proved adequate for the rest of the state, had sufficed for New York City until 1833, and would still be sufficient if used in the city henceforth.

The Sands case received extensive coverage in the press, and though Morris's decision brought some public criticism, the majority of the bar concurred with Morris in his position. Nevertheless, the controversy brought no changes in the vagrancy law or in its arbitrary enforcement.^[24]

In 1841, public attention again was focused on a vagrancy case, that of Melinda Hoag. While the Sands case, like that of Matilda Wade later, suggested how a woman might be convicted of prostitution with no shred of evidence that she practiced it, Hoag's legal history made clear how ineffective the law was against even a notorious prostitute and thief who could afford to employ legal counsel. According to the court, Hoag had been convicted "on competent testimony" and was committed to the penitentiary for six months for being a vagrant, "an idle person and a common prostitute, who having no visible means to maintain herself, lives without lawful employment."^[25] Hoag's case was brought before the court on a writ of habeas corpus, and her counsel challenged the vagrancy charges and sentence on several grounds. First, he argued that the offense had not been defined with sufficient precision under the terms of any statute setting forth what constituted a vagrant. A second challenge was that it was not clear if the evidence against Hoag had been her own confession or the competent testimony of witnesses. If the latter, the names and testimony of these witnesses had not been given her. A third complaint was that there was no statement of adjudication declaring that the prisoner was either a notorious offender who should be sent to the penitentiary or a proper object of relief who should be sent to the almshouse.

Presiding Judge Lynch stated that it was not necessary in this type of case for the names and testimony of witnesses to be given, but that such testimony must only be in the record, with the offense sufficiently described by a witness with authority. He added, however, that because

of technicalities in the statute, the charge of vagrancy had been improperly made. The prisoner, therefore, was to be discharged on the basis of improper procedures. He further cautioned that, when there is a commitment to prison without a jury, the court must be careful not to appear to be acting on prejudice or personal dislike. In his opinion, the police court had been concerned only with the substantive end of justice and therefore had neglected proper legal procedures.

The Tribune supported the judge's actions, noting that it "must be obvious to all that such a process is liable to the grossest abuses and ought to be carefully guarded. . .. As a prop to public morals it seems to us to be an exceedingly imperfect and unsafe one."^[26] Again, however, even though the vagrancy law had been challenged in the courts and had been termed "exceedingly imperfect and unsafe" by the press, the law remained unchanged.

Melinda Hoag, perhaps encouraged by her experience with the judicial system, saw no need to change her ways and was back in court two years later, again challenging the vagrancy law. Strong evidence indicated that she was involved not only in a life of prostitution but also in theft in association with persons well known to police authorities. She lived with a man named Alexander Hoag but was not his wife. They had been together several years, and he characterized their relationship as one where she "kept house for him by the month."^[27] The Hoags were known to the police, and indeed soon to the public, as "panel thieves." In the panel game, a female lured her customers into a bedroom that had a secret panel or curtain where her accomplice could hide until the opportune time to steal money from the pants or coat pocket of the victim's clothes that had been left on a nearby chair or stand.

It was in fact theft, not prostitution, that led to the Hoags' legal downfall. In August 1843, Melinda Hoag was arrested on complaint of Isaac Smith, a Westchester County man, who claimed he had met her on the street, had gone home with her to her house on Greenwich Street, and had gone to bed with her. He said he heard a noise and looked up to find a man trying to steal his pantaloons. Smith dressed and left but shortly thereafter discovered his wallet was missing. He located a watchman, who went with him to the Greenwich Street house, where they found, according to the report in the Tribune , "the notorious Melinda Hoag, the robber of a thousand strangers, . . . the little less notorious Alexander Hoag, her paramour," and a man called Charles Watson.^[28]

All three were arrested and locked in the watchhouse. Smith's complaint against Melinda Hoag pointed out that she had told him she only "wanted to get acquainted with folks," but that she also had agreed "to allow him the use of her person for any amount that he had a mind to give her."^[29] On this basis he charged her with being a common prostitute. On examination by Hoag's lawyer, Smith admitted he had not had intercourse with her, nor did he know anyone who had, but that she had agreed to "give up her person for pay or hire," and had gone to bed with him for that purpose.^[30]

The day following the arrest of the three parties, Smith discovered his wallet was not missing but was in his coat pocket. He reported this discovery to the police, who released the two men but detained Melinda Hoag. Hoag was sent to the penitentiary for six months for being a vagrant and a prostitute.^[31] Her lawyers filed to have the case reviewed on a writ of certiorari before the New York Supreme Court, and Alexander Hoag posted her $500 bail.^[32] The court found the charges and convictions were improperly made under the law and Mrs. Hoag could not be legally detained. She was released, but within the month Melinda and Alexander Hoag were again arrested. This time Mrs. Hoag had taken an Ohio visitor to a house in Robinson Street and gone to bed with him. Shortly thereafter, they heard a loud knocking at the door. Mrs. Hoag said she feared it was her husband and begged the gentleman to leave quickly, which he did. When he returned to his hotel he discovered he was missing $54; he reported the incident to the authorities, and the Hoags were arrested. According to press reports, not only did Alexander Hoag try unsuccessfully to escape, but several bank notes that the Ohioan identified were found in the possession of both Hoags, who were committed for trial on charges of grand larceny.^[33]

Melinda Hoag's jury found her guilty without ever retiring to private chambers. This time she was committed to prison on charges of larceny, not vagrancy/common prostitution, and therefore her conviction held. Alexander Hoag, also found guilty, was sentenced to four years in the state prison, a decision he challenged in Supreme Court but a sentence he later served.^[34]

That the authorities finally chose to avoid vagrancy/common prostitution charges in their efforts to remove Melinda Hoag from the streets acknowledged that the statute was so general, and its application such an abridgement of due process, that it was unlikely to be upheld under

appeal, even when applied to as blatant a prostitute as Melinda Hoag. While useful in arbitrarily attacking or harassing poor females, prostitute or not, the vagrancy law, New Yorkers knew, in fact did nothing to curb prostitution. An 1844 report of a Board of Aldermen committee evaluating the New York police department acknowledged as much, in part using documents from the 1843 Hoag trials as case studies. The report of the committee stated that it was an "established, though melancholy fact" that prostitution and houses of prostitution exist in all large cities and cannot be prevented by law. The report went on to note, however, that several New York jurists and legislators favored laws that would license and regulate the practice, but that the general community would find such laws unacceptable, and thus, they would not be recommended. The vagrancy law would remain in force, requiring "emphatically, the efficient attention of the Police"—which meant that the law would continue to be most effective as harassment of those too poor or too uneducated to provide themselves with legal protection.^[35]

Another example of the abuses inherent in the vagrancy law was the case of Harriet Charles in August 1846. Again, as in the Sands case, the plaintiff's counsel questioned the legality of the single magistrate's summary power in such cases. The judge's finding was that the prisoner had been illegally convicted by a magistrate whose power was conferred by a statute not in conformity with the common law. Furthermore, Harriet Charles's denial of both a trial by jury and a hearing where she could know and defend herself against the charges of prostitution—a denial the judge noted was most often practiced against people whose "poverty and destitution makes them wanting in all other forms of protection"—was ruled a withholding of due process.^[36] Although Harriet Charles was able to avoid punishment under the vagrancy act in 1846, she could not escape the threat the law continued to pose to prostitutes, or to women unaccompanied on New York streets. The police blotter for November 7, 1850, notes Charles again was arrested as a vagrant/common prostitute, and she was sentenced to three months' imprisonment.^[37]

Even though eight years had transpired between the Sands and the Charles cases, their similarities pointed out that, in spite of repeated publicity about the inability of the vagrancy law to withstand judicial review, the law itself had not been modified nor had there been any change in its enforcement in that period. Some New Yorkers, however,

had become increasingly concerned with the vagrancy law's ineffectiveness in curbing prostitution as well as its abuses of justice. A grand jury was called by the Common Council in 1848 to review vagrancy convictions, and the inquiry found that of 511 records of vagrancy conviction, only 3 were valid, and of 746 persons detained in the penitentiary on vagrancy, only 3 were lawfully held.^[38] In spite of this indictment of the law and the judicial procedures used in its enforcement, legislators were unwilling to change the law substantially. Minor changes were made in 1849, 1853, and 1854, but only in an effort to assure that arrests and convictions would more easily stand up in court. Matilda Wade's case in 1855 clearly illustrated that abuses were not eliminated by the revisions.^[39] As a result of the Wade case and the large number of prisoners released after the trial, the mayor's and district attorney's offices drew up a series of guidelines to be followed in making future arrests: police should arrest only if specific acts or words at the time of arrest indicated grounds for such action, and they should arrest by warrant after an affidavit had been sworn before a magistrate noting past acts of prostitution and lack of lawful employment, and after verification of evidence by, for example, accompanying a suspected prostitute to her alleged residence where inquiries could be made as to the truth of her story. In addition, police were to inform the prisoner immediately of her right to counsel, give her the opportunity for an on-the-spot cross-examination of witnesses, and then submit a full record of all signed and certified proceedings for filing with the appropriate authorities.^[40]

That the guidelines were designed more to uphold convictions than to ensure justice became clear within a couple of months. Under pressure from constituents to stop the throngs of women continuing to fill the streets at night, Mayor Wood renewed his campaign against prostitutes and directed his officers to make arrests. Over sixty women were brought before the police court on the first day of arrests, forty the next, and orders were given to continue apprehending streetwalkers until the nuisance abated.^[41] Clearly such numbers could not have been rounded up had the police paid any heed to the "protective" guidelines drawn up the previous month. In an article about the initial arrests the Times noted that the women apprehended were "exceedingly shy and with but few exceptions behaved themselves with propriety."^[42]

One of the women in the first group incarcerated was a twenty-one-year-old immigrant named Margaret McDermott. The Times spoke

with outrage about the fact that Michael Connelly, a police justice, had committed McDermott to prison on vagrancy charges and then over a week later had requested her release because he had learned she was a "virtuous girl only a few months in the country." The paper asked, "If Justice Connelly may do this in the case of Margaret McDermott, why may he not do it in the case of any and of every woman in the city? Is this the tenure on which we hold the security of our persons and our personal rights?"^[43] Connelly defended his act by stating there was sufficient evidence against her: "She was friendless, a pauper and unknown, and had not the power to rebut but by her own assertion the charge made against her. Was I to believe the prisoner and doubt the evidence?" The Times censured the justice for committing her to prison before he had proved her guilt, stating: "The fact that she was poor and friendless should have made him doubly careful not to augment her misfortune by reckless injustice."^[44]

Yet Connelly had acted in precise accord with the intention of the law in convicting McDermott. Under the vagrancy law, being friendless and poor was, in fact, all the "evidence" needed to prove prostitution. A few individuals, such as the Times editor writing about the Wade case and the judge in the Harriet Charles case, had pointed out that the vagrancy law was a form of "reckless injustice" practiced on the poor and destitute, but the overwhelming majority of legal enforcers and society in general demonstrated a gross and almost absolute indifference to guaranteeing even a semblance of justice for the underclasses. Even though the vagrancy law left cases open to judicial challenge, New York newspapers and police blotters indicate it was utilized far more widely in nineteenth-century New York than were other statutes for controlling prostitution. A vagrancy conviction offered officials an easier, quicker, and harsher way of handling conspicuous prostitutes, especially those too poor to contest the charges, than did alternative laws.

The other major prostitution law, the law for disorderly persons, covered both prostitutes and keepers of "bawdy houses or houses for resort of prostitution." Arrest as a disorderly person was usually made in conjunction with a disorderly-house arrest and unlike a vagrancy charge had to be proved in court. A disorderly-person case before the Court of General Sessions required police time, court time, and witnesses open to examination. In addition, witnesses called to testify in a disorderly-persons case either had to post bond or be held in jail until the case was

heard, a definite drawback for the potential witness as well as a deterrent for anyone wanting to bring charges against an alleged prostitute.^[45]

Police blotters show most of those women arrested for vagrancy received sentences of two to six months, with the six-month sentence being frequently given, while those charged as disorderly persons were much less often incarcerated. Notations in the police blotters indicate that disorderly persons were either dismissed or charged bail and set free on good behavior. In many of the cases, the police record mentions no disposition. Some of these cases were heard at a later date before the General Sessions Court, or the police released the women rather than force the police, the prostitutes' clientele, or other witnesses to testify.^[46]

Available statistics illustrate the great discrepancy between arrests for vagrancy and those in connection with a disorderly house (table 15). There were a mere 22 disorderly-house arrests for the year 1847 when police records began to be published, and these gradually increased to 167 by the next decade. Ten years later there were 367 arrests under the statute, but only 152 of these were female, and there is no indication how many of the proprietors were operating prostitution establishments rather than groggeries, dram shops, dance halls, or gaming establishments, all of which were also considered disorderly houses. The legal freedom enjoyed by operators of disorderly houses is even more evident when one notes cases where an indictment was actually found. For almost an entire decade, 1860 to 1869, only 85 indictments were issued against houses of prostitution, an average of less than nine a year in a city where disorderly houses were plentiful. The arrest and indictment records illustrate clearly that disorderly-house laws were difficult to wield against prostitution, and they suggest that officials and the public were more tolerant of brothels than of street prostitution.^[47]

If the police wished to arrest prostitutes who were inhabitants or managers of houses of prostitution, however, the disorderly person/ disorderly house law did provide a statutory basis. The maximum sentence for operating a disorderly house was one year's imprisonment at hard labor, with one month's solitary confinement and a fine of $250. The maximum sentence for other inhabitants was the same as for any disorderly person—up to six months in jail. Critics seeking strong action against disorderly houses were concerned that police had no power to enter such establishments unless some situation, such as a brawl or a request for help, necessitated their services on the premises.^[48] The

Advocate of Moral Reform complained there were no penal enactments that could eliminate such "houses of death" provided they observed external order and quiet.^[49] To get around this restriction, police might induce a neighbor to make a complaint, in order to permit the authorities to take out a warrant, enter the house, and arrest everyone found on the premises.^[50] This ability to arrest "on complaint" provided police with a method of controlling, or harassing, brothels if they wished to use it. In one case, the son of a highly respectable family had been fre-

quenting Eliza Smith's brothel in Centre Street. His father contacted the police and went with them to the brothel to have the son removed. The police threatened Smith that, if she admitted the son again, they would see that complaints were made against her house and her establishment would be broken up. Inhabitants then would be charged and sent to jail, or the brothel keeper and inmates might be set free on promise they would immediately vacate the house and the neighborhood.^[51]

Although disorderly houses could be quickly dealt with by obtaining a complaint, and most arrests probably were not disputed, testimony could be difficult to prove if challenged by the defendant or her counsel. Usually, neighbors testified about external events at a house or the appearance of visitors. The standardized forms filed in the district attorney's office noted that a house was a "resort of tipplers, gamblers, prostitutes, and other disorderly persons who disturbed the peace of the neighbors at all hours of the night." A complaint might also state that prostitutes and persons of "bad character" met there nightly to dance, and "the vilest was allowed and encouraged," or that "men and women, both black and white, were seen entering and leaving the house."^[52] Some citizens' complaints contained more specific objections, especially during the summer months, when windows were kept open for ventilation. In 1830 neighbors of Rosina Townsend, Ann Perkins, and Mary Wall filed a complaint against the three women for operating disorderly houses at numbers 41, 39-1/2, and 39 Thomas Street. A letter to the police from one of the complainants, George Chapman, stated that the women operated "noted houses of prostitution" and that on the previous Sunday afternoon either Ann Perkins or a female resident of her house was seen with a male "in a State of Nature with the front window open to the street." This scene proceeded "to drive from their windows every respectable female in view and collected a mob of boys."^[53] Chapman said that he hoped the magistrates would

remove the nuisance not by sending a wretched prostitute to the penitentiary for sixty days, whose vacancy in the brothel may be filled in twenty minutes, but by clearing out the houses, indicting their keepers and Livingston, the agent who lets those houses with a knowledge of the infamous purpose to which they will be applied.^[54]

It is not certain what immediate action was taken, but a few years later both Townsend and Wall were still living at the same addresses.^[55]

In an 1834 charge against Julia Brown, who was said to operate a disorderly house at 133 Reade Street, a neighbor complained that the night before Brown's common bawdy house had been the scene of "a great noise and quarreling to the great annoyance and disturbance of neighbors." A second neighbor complained that men and women regularly met at the house and that "the females expose themselves in the yard and at the windows in an indecent state and the males use indecent language." Brown pled guilty to the charge and vacated the Reade Street address, but she continued to manage brothels at various other New York locations for years afterward.^[56]

Another 1834 case against three women in White Street charged that their houses were the common resorts of prostitutes who "sit by the windows and lie on the Beds of the House[s] with windows hoisted and their naked persons greatly exposed."^[57] The neighbors were especially annoyed because they had brought disorderly-house charges against the three previous owners of the same establishments in May of that year. These three women had been ordered out and had moved. A month later, however, the houses were reoccupied by the three new prostitutes. After complaints again were made to the police, one of the new owners moved out, but the two others defied the law by staying—and, to the great dismay of the neighbors, the empty house was taken over by the prostitute who had first occupied it in May! Finally, after several months of delay in the courts, two of the occupants were found guilty.^[58]

Sometimes neighbors were overly zealous in pursuing exact information to use against suspected prostitutes. One such case was that of Rebecca Davis, a widow with five children, who was said to earn her living selling baby clothing. Mrs. Davis was described as a "wellbuilt little Jewess, with dark eyes and hair, and good expression of face of the Israelite mould."^[59] A neighbor, Mr. Roper, testified that he eavesdropped in order to determine the character of Mrs. Davis and her friends. He said the conversations in the house between men and women were "the obscene kind such as women of ill fame use." Roper did not explain how he had become an authority on such conversations. Another neighbor testified that, as he was peeping through the keyhole, he saw a man getting out of her bed. A female neighbor, who lived above Mrs. Davis, said she "heard the bed going." In her testimony she declared: "I am not speculating as to the noise of the bed. I know the difference between the movement of a bed and a chair. . .. I saw

nothing but speculate upon the result."^[60] Twelve other witnesses were then called who testified on behalf of Mrs. Davis. One, a grocer who lived across the street, said he had never seen or overheard anything improper, but added in response to Davis's accusers: "I never looked through the keyhole." The local watchman, also testifying on her behalf, made a similar statement, saying he "never looked through the keyhole or the back shutters." After an hour's deliberation the jury found Mrs. Davis not guilty. Mrs. Davis then brought charges against one of the neighbors for defamation of character.^[61]

Another disorderly-house arrest that did not stand up in court involved Elizabeth Rice. Mrs. Rice retained counsel for her defense, and the court found that "she did not keep such a disorderly house as the law prohibits with its penalties."^[62] The prosecutor was able to prove, however, that she sold liquor on the Sabbath, so Mrs. Rice was compelled to pay a fine before she was discharged. The Advocate of Moral Reform made note of the fact that her counsel fees and fine together amounted to only $20.^[63]

As with the vagrancy law, there were major problems with the justice of the disorderly persons law, which worked better to intimidate than to convict. Judges became more concerned over the years to evaluate charges under the statute and lessen inconsistencies, but this could not be done without undercutting what small effectiveness the law had. The case of Mary Fowler, the keeper of a house on Church Street, suggests well the legal fog, abetted by society's ambiguous attitude to prostitution, that fell over most court procedures in such cases. Familiar to the New York community, the "notorious" Mary Fowler had lived on Church Street for over a decade and was listed in the 1838 City Directory as the widow of Joseph M. Fowler. The 1840 census registered her as the head of a household that included two other women and four young boys. Mary Fowler was one of several prostitutes the well-known editor, E. Z. C. Judson (alias Ned Buntline), attempted to blackmail. Judson also was responsible for reporting Fowler's establishment to the police.^[64]

At her trial Mrs. Fowler said she was indignant at the report her house was of bad character. She threatened to sue one of the prosecution witnesses for slander. Mrs. Fowler's lawyer also objected to the "spy system" that had "hunted up" testimony against her, stating that it left everyone unsafe even in her own house.^[65]

Judge C. P. Daley's jury instructions wonderfully suggested the general social and legal confusion surrounding prostitution cases. He pointed out that an establishment could be deemed a disorderly house even if it did not disturb the neighborhood; if what was going on in a house had a tendency to injure public morals, and if the place was frequented by individuals of both sexes for the purpose of facilitating illicit connection between them, then it mattered not how privately or correctly such behavior was conducted. Daley's charge clarified what he believed to be the intent of prostitution laws: preventing a "moral" offense to the community. Past de facto implementation of both disorderly-house and vagrancy laws had emphasized enforcement of public decorum and control of undesirable elements of the population, not upholding a moral or sexual code of behavior in the community. In past cases, defense attorneys for prostitutes had even gone so far as to argue in court that if a woman lived alone and did not disturb her neighbors, it made "no difference how many men visit[ed] her and [had] sexual intercourse with her."^[66]

Judge Daley challenged this interpretation by pointing to a larger issue present in such cases. He noted that prostitution establishments were great evils and that isolated prosecutions against them were of doubtful utility. Houses of ill-repute were either necessary evils, or they were not. If necessary, then they should be regulated by the police and if not necessary, then the municipal authorities should suppress them by a general systematic effort. The indirect countenance of them by police in New York City he believed to be scandalous, and isolated prosecutions served only to bring the evil to the attention of those of prurient interests, or the young and unsuspecting, the curious, or the salacious.

Nevertheless, the judge said it was the duty of the jury and court to administer the law as they found it, without inquiry into the wisdom of the law. The evidence indicating that women of ill-fame were seen visiting the house and were said to live there was not in itself sufficient to establish that the house was disorderly—even women of ill-fame must have a residence and shelter somewhere, he observed, as had been argued in a case in England. In addition, the jury should presume nothing against the character of the defendant, because the law presumes her character to be good unless shown to be otherwise. Also, if the evidence did not prove beyond a doubt that prostitution took place in the house, and that it was for Mrs. Fowler's "lucre and gain," then

the defendant should be found not guilty. After cautioning the jury on all of these issues, however, the judge pointed out that if wine were sold in the house, then Mrs. Fowler could be convicted of keeping a disorderly house under that charge!^[67]

Despite such clear indication of problems with the disorderly-persons/disorderly-house law, no basic amendment was undertaken. One addition to the law was made that suggested concern about respectable exploiters of prostitutes; as prostitutes came to be viewed more as victims than victimizers, it began to seem appropriate that those who "assisted" in their degradation should not go unpunished. Therefore, in 1849 a law was passed including owners of disorderly houses with the persons who managed them.^[68] Absentee brothel property owners were believed to be guilty because their participation for financial gain made them an integral part of the prostitution business, "respectable" people who in fact financially exploited prostitutes' poverty and vulnerability. Reformers argued that property owners earned such money not by a fair business arrangement with the prostitutes but by exploiting the many women who were forced to practice the occupation. The sense of class injustice tied to this reform is suggested by one proposal which recommended that not only should those who own the property be punished by imprisonment and fine, but income from the fine and from the property's rent for five years should go to the Overseers of the Poor.^[69]

A sample case under the new law was that of Fanny Howard, who was arrested in April 1849 for keeping a house of prostitution on Church Street. Upon her arrest she signed an affidavit stating that she rented the house from John F. Delaplaine, a well-known property owner who was said to lease several houses as brothels. After Howard stated that Delaplaine knew she intended to keep the residence as a house of ill fame, a warrant also was issued for Delaplaine's arrest. The police blotter for April 20 shows both Howard and Delaplaine were arrested but does not record what happened to them. Since the blotter for July 9, 1849 indicates that Howard was again arrested for keeping a disorderly house, she probably was released with a warning or given a fine. There is no indication what happened to Delaplaine except for a notice six months later in the Herald that he was "indicted" for owning a residence operated as a disorderly house by Fanny Howard. Either the court was finally hearing his April case or he had been charged again with the same offense. No disposition of the case was mentioned.^[70]

In another case against a landlord, John Devins was indicted for leasing a disorderly house at 24 Elizabeth Street. Even though Devins lived in the basement, he protested the suit and had his young children and an employee testify to his sober character. The judge pointed out that the Supreme Court had been clear on the issue, and that the jury must judge on the facts, which were that he had knowingly leased the residence as a disorderly house. The jury found Devins guilty but recommended mercy, and the sentence was suspended by his "abating the nuisance."^[71]

Other laws also included provisions designed to prevent the development of prostitution. For example, immigration laws forbade entry into the United States of women of immoral character, as well as other "undesirables," such as the diseased, maimed, and criminal. Tenement house laws and public health laws included restrictions on prostitutes and the practice of their trade.^[72] At mid-century, two further attempts to legislate specific controls on New York City prostitutes were made; although they failed, they merit special attention.

The earlier of these proposals was a campaign for laws to prevent prostitutes from attending public theaters and other public places of amusement. This law was similar to other prostitution statutes in its attempt to control the behavior of the women who practiced the profession by removing them from the public arena. In nineteenth-century American theaters, the gallery, or upper row above the dress and family circles, was customarily reserved for prostitutes. This section, known as the third tier, was periodically the subject of controversy. Moralists believed the presence of prostitutes there was a disgusting custom, offensive to respectable patrons of the theater. For those who questioned the morality of theaters in general, the existence of the third tier was a confirmation of its impurity. Theater managers were constantly under pressure from clergy and reformers who wished to see the third tier eliminated. If any theater went out of business, these reformers were quick to point out that the theater had been unable to attract a respectable clientele.^[73]

In 1842, attempting to meet the objections of some of his critics, Edmund Simpson, manager of New York's Park Theatre, scheduled a religious play, The Israelites in Egypt , and closed the third tier. In describing opening night, the Herald said the house was "well and respectably filled" but "the third tier empty, the manager having for the

first time in New York, put forth a moral courage unheard of." The play was scheduled to run for eighteen days, but by the fourth night the prostitutes were readmitted. The Herald ran a letter from "Hamilton," a concerned citizen, stating that Simpson should take new courage and reinstitute the reform. The writer ominously warned: "Whether or not you abolish it [the third tier], the time is not far distant when this will be done with or without your consent. . .. There are influences, powerful and strong, at work to abate this nuisance."^[74]

It appeared Hamilton's prophecy would be fulfilled a year later when a group of New York City aldermen presented a study of the defects and deficiencies in the existing laws of the city. One of the deficiencies they mentioned was the failure to restrain theaters and others places of public amusement from admitting prostitutes. The aldermen followed this criticism with a suggested statute which said: "The keeper of any public theatre, circus, or other place of public amusement, who shall hereafter wilfully receive or allow any common prostitute to be placed anywhere among or in open view of the audience, shall, for each offence, forfeit the sum of $100 dollars."^[75] Although this proposed law was not as restrictive as some had hoped, it still failed to pass. Prostitutes continued to enjoy their own special section of theaters for many more years, but by the mid-1850s the practice had begun to decline, and by the 1880s the custom of the third tier was no longer commonly found in American theaters.^[76]

A second and more significant unsuccessful legislative proposal concerning New York City prostitutes was the attempt to license and regulate the profession. This bold initiative reflected a general agreement that the laws to eradicate prostitution were ineffective, despite widespread disagreement as to the cause of this failure. Many felt that inadequate enforcement of existing laws had allowed prostitution to flourish in the community, while others felt it was useless to try to eradicate prostitution by compulsory legislation because, even if officials enforced prohibitory statutes, they only succeeded in driving prostitution into seclusion, or in removing the nuisance from the community temporarily. As one observer said: "No amount of imprisonment as a punishment ever yet reformed a prostitute, and it never will."^[77] Other critics pointed to the harmful effects of the prohibitory laws. Innumerable court cases had shown the potential of the laws to abuse the rights not only of prostitutes but of other women as well. Some even ques-

tioned whether prostitution was an offense against society serious enough to warrant arrest at all. Furthermore, laws which sentenced vagrants, whether prostitutes or indigents, to the penitentiary were detrimental because the so-called vagrants were returned to the penitentiary time and again for the same or more serious offenses "to keep company with thieves and felons and murderers, and, if there is a vice she is unskilled in, to learn its art and come back again, when the time of the commitment has expired, to practice it . . . proficient in crimes at which society trembles."^[78] Finally, some argued against prohibitory statutes because they believed prostitution was inevitable, and thus potentially controllable only through regulation or licensing.^[79]

One of the first official suggestions for licensing was made by the Reorganization Report of the Board of Aldermen in 1844. As the report stated, it was a fact that houses of prostitution "exist in every large and commercial city, and cannot by any system of penal laws, be prevented." The report also pointed out that many of esteemed reputation "favor the idea of licensing and regulating these establishments by law, and in some European Cities, this is practiced with success."^[80] The aldermen's report approved licensing prostitution on the grounds that it was inevitable, but to sanction prostitution also might imply it was socially and morally non-destructive, an idea which New Yorkers could not accept. The report acknowledged that licensing prostitution would be "repugnant" to the social and moral principles of most of the community.

Three years after the aldermen's report, the New York physician Charles Smith suggested an additional reason for regulating prostitution. Reiterating the opinion that prohibitory laws would not make society virtuous, he pointed out that some laws were necessary to protect society, especially from infectious diseases such as syphilis. This was one area where police could exert some control, he wrote, and he suggested the law should make having syphilis a misdemeanor—despite obvious political problems with defining, say, the wife of a philanderer as a criminal subject to punishment for having the disease. Dr. Smith noted that official regulation of prostitution had been successfully tried by European governments and should be considered by New Yorkers.^[81]

The European system of regulation referred to by the aldermen and Smith was best known in France, which had a long history of attempts at controlling prostitution. Police supervision, official bordellos, peri-

odic medical examinations of prostitutes, and the enforced internment of the diseased in separate venereal hospitals were the basic elements of the French system of regulation, a system that had been adopted during the Napoleonic period. The results of this regulatory system were described by Parent-Duchatelet, the French demographer and sanitary investigator, in De la prostitution dans la ville de Paris (1836). Parent's ideas had an impact on several public figures concerned with prostitution in New York City. William Sanger and City Inspector John Griscom both made references to Parent's work in their studies of New York's prostitution and poverty.^[82] Viewing venereal disease as a major health problem, Sanger advocated regulation as the most effective means of controlling the spread of the disease. Sanger's plan called for the establishment of a medical bureau within the police department. This bureau would be a partnership composed of medical men of "skill and integrity" whose work would be backed up by the authority of the police. There were three major features of Sanger's proposal: the regular medical examination of prostitutes at known houses of prostitution with the immediate removal of those found to be diseased, the establishment of a special hospital for persons infected with venereal disease, and the granting of power to hospital officials to detain infected persons in the institution until such time as they were found to be cured. Sanger also suggested that houses of prostitution eventually might be confined to particular locations and speculated that the regulation system might be expanded to include specifications on the management of houses and the licensing of official brothels.

Sanger conceded there would be opposition to such a system by those who feared it would encourage lewdness through lessening the danger of infection, those who believed venereal disease was a special punishment of Providence, those who daily offered cures for the disease in the popular press, and those who objected to raising public revenues by licensing vice. Sanger countered these arguments by pointing out that, in addition to preserving public decency, regulation would help protect innocent wives and children who were often unsuspectingly diseased and deformed through no fault of their own. Sanger did not elaborate on how the regulation system would be able to include all women who engaged in prostitution but were not found in brothels or assignation houses, nor was he concerned with the fact that male clients of diseased prostitutes were not included in the plan.^[83]

Although a system of regulation continued to be discussed by some New Yorkers, the idea was not advocated by lawmakers until a decade after Sanger made his plea. In 1867 the Assembly of the New York Legislature adopted a resolution requiring the metropolitan boards of police and health to furnish an opinion on the possible impact of prostitution regulation in New York City. The report of the boards' research committee proposed that all keepers of houses of prostitution and assignation be registered with the police, that any women admitted to such houses be reported to the authorities, that both the houses and the prostitutes themselves be regularly inspected, that a special hospital be established for prostitutes, and that any medical facility receiving aid from the state be required to treat venereal disease. In 1868, the year following the committee's report, a bill was introduced in the state legislature which embodied the main features of the report. This legislation was unsuccessful, but in 1871 another bill received strong lobbying support from members of the medical and public health fields. Its opponents included individuals who objected on grounds that the law would be licensing sin, and feminists, such as Elizabeth Cady Stanton, Susan B. Anthony, and Lucretia Mott, who opposed the bill because they believed the law would discriminate against and violate the civil rights not only of prostitutes but of other women as well. They argued that any woman alone on the streets could be arrested and subjected to a medical examination under charges she was a prostitute. Even without such a regulation, New York women in the past had been forced to endure similar violations of their personal and civil rights, as Sanger had revealed concerning the women arrested under Mayor Wood's "reform" program. Opponents believed that a legal empowerment to continue the practice would only exacerbate the problem. Although the 1871 bill passed both houses of the legislature, it was allowed to die by the governor's failure to sign it.^[84]

Again in 1875 a regulation bill was proposed as a means of reducing the increase of both crime and disease in New York City. This bill also was defeated because women's rights groups continued to argue against the licensing system on the grounds that experience had shown that its inclusion of only a relatively small group of prostitutes would doom it to failure and because it unfairly exempted men from inspection and restraint. As in the past, groups such as the Moral Education Society of New York joined in opposing the measure because they believed it unacceptable to license immorality.^[85]

Though regulatory measures were again advocated by official or public bodies in both 1876 and 1877, no legislation was adopted. By this time, the failure of the system of regulation in Europe and in one American city, St. Louis, was being publicized. Furthermore, opposition groups had become well organized in their attempts to prevent any further legislative efforts and had sensitized the public to the dubious aspects of the system. Gradually, the movement for legalizing prostitution in New York City died.^[86]

That New Yorkers would neither license or regulate prostitution nor "decriminalize" the profession by repealing ineffective anti-prostitution laws that were blatantly discriminatory is indicative of the general public ambivalence about prostitution. Prostitutes continued to be harassed and abused by being shuttled in and out of court and jails throughout the period from 1830 to 1870, but without any significant impact on the overall practice of the profession. This revolving-door approach to prostitution appeared to satisfy nineteenth-century New Yorkers' need to feel that public morality was being preserved and that the unrespectable classes of society were being kept under control. The gender and class biases of the justice system received few challenges. Certainly nowhere in the laws governing prostitution was there recognition of the fact that the prostitute had an equally culpable partner in her "crime." As one observer has said, "prostitution is really the only crime in the penal law where two people are doing a thing mutually agreed upon and yet only one, the female partner, is subject to arrest."^[87] That some could have argued that prostitution was a "victimless crime," or more properly a "complainantless crime," was irrelevant. Prostitution statutes remained firmly based on a sexual double standard that punished the female only. Moreover, the sexual bias of the legal system was equally evident in New Yorkers' approach to juvenile justice. An overwhelming number of the delinquent females arrested and sent to the House of Refuge in the mid-nineteenth century were committed for immoral conduct offenses. Case histories repeatedly note that juvenile female offenders were arrested because they "stayed out all night with boys," yet there are no cases of juvenile boys being arrested and committed to the Refuge for "staying out all night with girls." As one commentator has observed,

The actual situation in the city is that prostitution is accepted by everyone— police, judges, [court] clerks, and lawyers. Arrest and prosecution are purely gestures that have to be made to keep up the facade of public morality. The method of dealing with it is simply a form of harassment, not a form of

prevention, abolition, or punishment. There is no conviction at any level that prostitution is a crime on anyone's part, only a total and satisfied acceptance of the double standard, excusing the male, accusing the female.^[88]

This assessment was made in the 1970s, not the 1800s, but it is equally descriptive of circumstances a century earlier—making a significant statement about the ineffectiveness of the justice system in confronting the legal abuses surrounding prostitution.^[89]

Although the double standard inherent in the anti-prostitution laws was never directly challenged in any major way in the nineteenth century, the concept did receive an indirect challenge through the campaign for laws to punish the offenses of seduction and adultery. Seduction was a civil offense in the early decades of the century, but to make a successful seduction case the plaintiff had to be someone other than the seduced. If the case was won, the plaintiff, usually a parent or guardian, was awarded a financial settlement for "loss of services." The seduced was not allowed to seek justice or restitution for a wrong done to her but was "objectified," technically becoming another's chattel or plaything. Critics of the law felt it was an outrage because it required that a "woman must acknowledge herself the servant of somebody, who may claim wages for her lost time!"^[90] Furthermore, charges could be difficult to prove if a defendant challenged the character of the woman who allegedly was seduced; the burden of proof then lay with the woman, who had to counter any suspicions that she might be unchaste.^[91]

Women could be charged with seducing men during the early decades of the century, when prostitutes were viewed as "victimizers of morally upright men." The aforementioned Eliza Smith, who had been warned by police that complaints would be made against her brothel if she again admitted the son of a certain respectable family, was charged under the seduction statute in the mid-1830s. Although there is no evidence Smith readmitted the young man, she later did stand as a witness when he and a prostitute were married at a minister's house. The angry father instituted a suit against Smith for recovery of damages for harboring and aiding in the seduction of his son.^[92]

By the late 1830s, some male biases of the socio-legal system were being challenged by supporters of the moral reform movement, whose anger over the unfairness of the sexual double standard led to a campaign for laws that would impose criminal penalties on male seducers. Citizens were encouraged to write letters and organize petitions to send to the

state capital. By 1840, 20,000 petitions had been sent to the New York legislature, 5,000 from New York City alone. A seduction and adultery bill was reported in the legislature that year but was not acted upon.^[93] Throughout the 1840s debate continued over tougher laws against seduction and adultery, and the issue became a topic in the popular press. Major newspapers such as the Tribune , the Herald , and the Sun supported the drive for stricter legislation and helped coalesce public opinion into a sympathetic stance for women who had been seduced, even those who were prostitutes. A focal point in the debate was the trial of Amelia Norman, alias Lydia Brown, who was charged with stabbing her seducer, Henry S. Ballard, on the steps of the Astor House Hotel.

Norman described herself as twenty-five years old, a native of New Jersey, and "a dressmaker by profession which I follow for a living."^[94] According to the Herald , Norman had been courted by Ballard and then seduced. She had given birth to one of his children and aborted another with the help of Madame Restelle, the famous abortionist. Ballard had then left her without means for thirteen months while he was on a trip to London and on his return had refused to see her. The editor of the Herald called Norman's story the "most heart rending history that ever was read or conceived" and described Ballard as "one of those worthy, honorable, moral men who are continually prowling about our large cities in pursuit of such friendless, unprotected girls as this unfortunate Amelia Norman."^[95]

Court testimony verified that Norman had unsuccessfully attempted to speak to Ballard on several occasions. Ballard's brother Francis testified that several months before the stabbing, Norman had come to their home and, when told she could not see Ballard, had threatened that she "was determined to ruin him, and if she could not do it in one way she would do it in another, and that she would either send him to the Devil or to Hell." Francis Ballard responded that if she tried to see his brother again "he would send her to the Tombs or Halls of Justice."^[96] Henry Ballard testified that Norman had threatened to take his life on several previous occasions. He said that on the evening of the assault Norman had followed him down the street, unsuccessfully attempting to talk to him before she "assaulted him with intent to kill" as he was entering the Astor Hotel.

The prosecutor described Norman as a prostitute and denied that Ballard had seduced her, though he argued that even if he had, seduction

was no justification for her act. He remarked that if the accused were acquitted, "12,000 women living by prostitution in the city . . . would be licensed to commit murder."^[97] Several witnesses testified to seeing the wounded Ballard fall on the hotel steps, and one witness said that he had taken the knife from the hand of Norman. After eight minutes of deliberation, the jury found Norman not guilty and acquitted her of the crime. The speed with which the jury made its decision and the decision itself were indicative of much public sympathy for Norman's case, even though she was believed to be a prostitute, and of a desire to see women as victims given greater protection.

Throughout the trial the press took strong stands in support of seduction legislation. "Let seduction be at once made a state prison offense," argued the Herald . "Talk of a civil prosecution for damages! It is an insulting mockery—mockery of justice—of morality—of right."^[98] However, after such a short jury deliberation and the acquittal of Norman the Herald questioned whether or not law had been perfectly satisfied, and said it was an "evil day if claims of justice are decided by feelings."^[99] Nevertheless, the Herald continued to advocate making seduction a penal offense so that men such as Ballard would not be made "the occasional victim to satisfy public indignation."^[100] The Herald supported its stand by printing letters from the public such as the one that stated: "Seduction, of all crimes, is the greatest. . .. Murder, I consider far inferior in point of criminality. Murder kills but the body— but seduction kills both body and soul forever."^[101]

Several bills on seduction and adultery were unsuccessfully brought before the legislature, including one that mandated three years' imprisonment for seduction, and twelve months' imprisonment for each offense of adultery.^[102] Groups of women from New York City as well as other cities traveled to Albany to lobby for the legislation, exerting relentless pressure on the lawmakers. A few lone voices questioned whether the laws on licentiousness ought not to provide for the equal punishment of females, but there was no following for this point of view. Finally, in 1848 the Act to Punish Seduction as a Crime passed the legislature. It stipulated that "any man who shall under promise of marriage seduce and have illicit connection with any unmarried female of previous chaste character shall be guilty of a misdemeanor, and upon conviction shall be punished by imprisonment."^[103] Though the law had been reformed, and a seducer now could be sent to jail, the protection

of the law had not really been extended, especially not for a woman believed to be a prostitute. A line had been drawn between the chaste and the unchaste, thus eliminating the prostitute from claims under the law unless she could prove that the act of seduction was the cause of her "downhill course." Like the old law, the new statute excluded the prostitute from the purview of legal protection because she was perceived to be outside the "circle"—which was basically the family circle—of those the law intended to protect. Nineteenth-century patriarchal attitudes were so antithetical to women protecting themselves that even the reformed law made any successful prosecution rely on the actions and testimony of the woman's "protectors." Prostitutes were not considered under the law, less because of the illegality of their profession than because they composed a female subgroup which was not familial and thus was outside the protection of the law.

Nevertheless, to a few males the seduction debate and the Norman trial appeared to be enough of a threat to encourage precautions in consorting with prostitutes. A Brooklyn lawyer was arrested and brought to court for seducing a young woman in New York City. He won his case by producing affidavits that had been signed earlier by the woman, Mary Ann Coyle, admitting she was a common prostitute. Whether or not Coyle had been a prostitute prior to the court hearing is unknown, but records show that a year and a half later a Mary Ann Cole was arrested with a group of five prostitutes during a raid on a neighboring house. Regardless of her background, the lawyer had been shrewd enough to protect himself from seduction charges.^[104]

Although seduction became a criminal offense, it does not seem to have been used much as grounds for legal action. Six months after the bill was passed the Police Gazette pointed out that no convictions had been made under the law, and the community wanted its repeal. According to the paper, the law was encouraging perjuries and conspiracies to extort money, and the public was disgusted with the kind of revelations it caused. In the two years following the law's adoption there were a total of four arrests for seduction and four for attempted seduction.^[105] There is no indication that any prostitutes pressed charges under the statute, no doubt because most were realistic enough to know they had little chance of a successful prosecution and would only jeopardize future business by attempting to use the protection of the law. In spite of the extensive public debate and much publicity on the

seduction issue, it appears attitudes did not change much, if at all. In 1858 William Sanger was still echoing the same lament voiced in the 1830s and 1840s. Under the existing state of public sentiment, he complained, "the seducer is allowed to go unpunished, and the full measure of retribution is directed against his victim. . .. Legal enactments can scarcely ever reach them, although sometimes a poor man without friends or money is indicted and convicted."^[106]

In terms of statutory law, prostitutes were victims of a system whose patriarchal assumptions left them, as a female subgroup, almost wholly unprotected, subject to the random whims and power of males in general and legal officers in particular. The vagrancy act especially, which was used so readily against prostitutes and subjected them to punishment virtually without regard for procedural protections, defined the "crime" at issue not as illicit sex trade but as being female, poor, and without a male protector. What allowed prostitutes to function reasonably effectively in this period was that while New York City moved into a more urbanized and impersonalized era, the common customs and values of the community retained enough strength to avert the full intent of legalized male domination. As will be illustrated more fully in the next chapter, arbitrary as the system was, it was a great benefit in general to prostitutes because the customs of the community were more flexible and more respectful of women as individuals (as well as of men as sexual animals) than the high moralism of the period, which always retreated toward its patriarchal roots and prejudices when pushed toward law.