|Central Park, 1875 (click image to enlarge)|
On the park there are no stores of private property, no walls or doors to be guarded, and respectable women and well nurtured children are much more tempted to the class of acts which it is the chief business of the park police to prevent than rogues or ruffians.
The service for which there is the most frequent need on the Central Park is, in fact, that of quietly and civilly pointing out to visitors, and mainly to women and children, how they can best obtain what they desire, so far as it is to be found in the park, and cautioning them in a respectful, courteous, and propitiating way when they may seen to be going wrong, either ignorantly or carelessly, or thorough an inadequate appreciation of the harm which would result in the park from actions which elsewhere often pass as venial, if not harmless. Such, for example, would be the picking of way-side flowers or the hunting of birds’ nests in thickets.His 1873 General Order to the park police further set out his views:
The danger ... is chiefly this, that a few persons, perhaps one in ten thousand of all who pass near any such place, will tramp across it, and in so doing, stamp out the life of the plants, or will, one by one, pick and misappropriate the flowers to private use. They have no more right to do either than to pick their neighbor’s pockets, throw stones at his windows or vitriol at his coat. Yet, of the comparatively small number of visitors who will crush out the life of the ferns, or steal the flowers, it will certainly be still a very much smaller number who are capable of being led intentionally to do any such wrong to their neighbor... . Much the larger part are capable of being tempted to it only because having had no occasion, under ordinary circumstances, in walking along the streets, or when in the country, through the woods and fields, to consider the rights of others in the way that is necessary in the park, it fails to be clear to their minds that they will be wronging others.
There's lots more in this article; here's an excerpt from the Conclusion:
In an era sometimes viewed as a high point of privatism and individualism, New York City expropriated more than 600 acres from private ownership to create an elaborate public park. The task of regulating its use was not, Olmsted pointed out, the familiar one of defending private interests from deliberate predation. It was to defend the purposes for which the public had created this collective asset against both thoughtless and deliberate attempts to commandeer it for private ends. That task posed at least two challenges, each of which had more or less obvious echoes in other areas of modern governance. First, many of the necessary rules seemed trivial when considered in isolation—as Olmsted put it, they could “be broken without harm perceptible to the breaker”—so it could be hard to convince either the police or those who violated them to take the violations very seriously. The park was hardly the only place where this challenge arose. Regulations against industrial pollution also remained controversial through much of the nineteenth century for similar reasons; for example, smoke pollution clearly mattered in the aggregate, but many courts overturned sanctions against polluters unless it could be shown that their emissions materially harmed a particular person or property interest. The idea that individuals had to use their property and freedom in ways that would not harm others or the common good was well established, but what counted as “harming” others in the burgeoning urban environment was in flux. In particular, accumulative harms became especially significant in the intensively shared environment of the late nineteenth century city, but such harms proved difficult to slot into familiar ways of understanding how one individual harmed others, and the legal tools that had been forged to handle less subtle offenses did not obviously suit them. Olmsted engaged with those challenges extensively throughout his time on the park.The comparison to private law nuisance is interesting, but Thacher might have been better off looking at the development of public health law and statutory nuisances in the same period in which Olmsted was operating. In that area of law, too, lawmakers realized that the incremental and invisible harms caused by industrialization and urbanization were difficult to prove, and so a system of regulation was instituted to control pollution without the need to demonstrate specific harm.