IMMORALITY AND THE LAW

The Task of Social Hygiene by Havelock Ellis is part of the HackerNoon Books Series. You can jump to any chapter in this book here. IMMORALITY AND THE LAW

IX. IMMORALITY AND THE LAW

Social Hygiene and Legal Compulsion—The Binding Force of Custom among Savages—The Dissolving Influence of Civilization—The Distinction between Immorality and Criminality—Adultery as a Crime—The Tests of Criminality—National Differences in laying down the Boundary between Criminal and Immoral Acts—France—Germany—England—The United States—Police Administration—Police Methods in the United States—National Differences in the Regulation of the Trade in Alcohol—Prohibition in the United States—Origin of the American Method of Dealing with Immorality—Russia—Historical Fluctuations in Methods of dealing with Immorality and Prostitution—Homosexuality—Holland—The Age of Consent—Moral Legislation in England—In the United States—The Raines Law—American Attempts to Suppress Prostitution—Their Futility—German Methods of Regulating Prostitution—The Sound Method of Approaching Immorality—Training in Sexual Hygiene—Education in Personal and Social Responsibility.

The modern development of Social Hygiene in matters of Eugenics has already sufficed to show that there are certain people in the community, anxious to take quick cuts to the millennium, who think that Eugenics can be promoted by hasty legislation. That method of attempting to further social progress is not new. It has been practised with signal lack of success for several thousand years. Therefore, if Social Hygiene is really to progress among us on sane and fundamental lines, it is necessary for us to realize clearly the mistakes of the past. Again and again the blind haste of over-zealous reformers has led not to progress, but to retrogression. The excellent intentions of such social reformers have been defeated, not so much by the evils they have sought to overcome, as by their own excesses of ignorant zeal. As our knowledge of history and of psychology increases, we learn that, in dealing with human nature, what seems the longest way round is sometimes the shortest way home.

Among savages, and no doubt in primitive societies generally, the social reaction against injurious or even unusual acts on the part of individuals is regulated by the binding force of custom. The ruling opinion is the opinion of all, the ruling custom is the duty for all. The dictates of custom, even of ritual and etiquette, are stringent dictates of morality binding upon all, and the breach of any is equivalent to what we should consider a crime. The savage man is held in the path of duty by a much more united force of public opinion than is the civilized man. But, as Westermarck points out, in a suggestive chapter on customs and laws as the expression of moral ideas, "custom never covers the whole field of morality, and the uncovered space grows larger in proportion as the moral consciousness develops.... The rule of custom is the rule of duty at early stages of development. Only progress in culture lessens its sway." [191] As a community increases in size and in cultivation, growing more heterogeneous, it adheres [260]rigidly to fundamental conceptions of right and wrong, but in less fundamental matters its moral ideas become both more subjective and more various. If a man kills another man out of love to that man's wife, all civilized society is of opinion that the homicide is a "crime" to be severely punished; but if the man should make love to the wife without killing the husband, then, although in some savage societies the act would still have been a "crime," in a civilized society it would usually be regarded as more properly a case for civil action, not for criminal action; while should it come to be known that the wife had from the first been in love with the man, and was married by compulsion to a husband who had brutally ill-used her, then a very considerable section of the civilized community would actually transfer their sympathies to the offending couple and look upon the husband as the real offender.

This is why the vestigial relics of the ancient ecclesiastical view of adultery as a "crime" are no longer supported by public opinion; [192] they are no longer enforced, or else the penalty is reduced to ridiculous dimensions (as in France, where a fine of a few francs may be imposed), and there is a general inclination to abolish them altogether. Penalties for adultery are not nowadays enacted afresh, except in the United States, where [261]medieval regulations are enabled to survive through the strength of the Puritan tradition. Thus in the State of New York a law was passed in 1907 rendering any person guilty of adultery punishable by six months' imprisonment, or a heavy fine, or both. The law was largely due to agitation by the National Christian League for the Promotion of Purity; it was supposed the law would act to prevent adultery. Less than three months after the Act became law, lawyers reached the conclusion that it was a dead letter. During the two years after its enactment, notwithstanding the large number of divorces, only three persons were sent to prison, for a few days, under this Act, and only four fined a small sum. The Committee of Fourteen state that it is "of practically no effect," and add: "The preventive values of this statute cannot be determined, but, judging from the prosecutions, it has proved an ineffective weapon against immorality, and has practically no effect upon commercialized vice." [193] When such laws remain on the Statute Book as relics of practically medieval days they deserve a certain respect, even if it is impossible to enforce them; to re-enact them in modern times is a gratuitous method of bringing law into contempt.

It is clear that all such cases affecting morals are not only altered by circumstances, and by consideration of the psychic state of the individual, but that in regard to them different sections of the community hold widely different views. The sanctions of the criminal law to be firm and unshakeable must be capable of literal interpretation [262]and of unfailing execution, and in that interpretation and execution be accepted as just by the whole community. But as soon as law enters the sphere of morals this becomes impossible; law loses all its certainty and all the reverence that rightly belongs to it. It no longer voices the conscience of the whole community; it tends to be merely an expression of the feelings of a small upper-class social circle; the feelings and the habits and the necessities of the mass of the population are altogether ignored. [194] Nor are such legislative incursions into the sphere of morals any more satisfactory from the point of view of the class which is responsible for them. It very soon begins to be felt that, as Hagen puts it, "the formulas of penal law are stiff and clumsy instruments which can only in the rarest instance serve to disentangle the delicate and manifoldly interwoven threads of the human soul, and decide what is just and what unjust. Formulas are adopted for simple, uncomplicated, rough everyday cases. Only in such cases do they achieve the conquest of justice over injustice."

It is true that no sharp line divides criminal acts from merely immoral acts, and the latter tend to be indirectly, even when not directly, anti-social. It would be highly convenient if we could draw a sharp distinction between major anti-social acts, which may properly be described as "crime," and justly be pursued [263]with the full rigour of the law, and minor anti-social acts, which may be left to the varying reaction of the social environments since they cannot properly be visited by the criminal law. [195] Such a distinction exists, but it cannot be made sharply because there are a large number of intermediate anti-social acts which some sections of the community regard as major, while others regard them as minor, or even, in some cases, as not anti-social at all. The only convenient test we can apply is the strength of the social reaction—provided we are dealing with an act which is definitely anti-social, injuring recognized rights, and not merely an unusual or disgusting act. [196] When an anti-social act meets with a reaction of social indignation which is fairly universal and permanent, it may be regarded as a crime coming under the jurisdiction of the law. If opinion varies, if a considerable section of the community revolt against the punishment of the alleged anti-social act, then we are not entitled to dignify it with the appellation of "crime." This is not an altogether sure or satisfactory criterion because there are frequently times and places, especially [264]under the stimulation of some particular occurrence evoking an outburst of increased public emotion, when a section of the community succeeds by its noisy vigour in creating the impression that it voices the universal will. But, on the whole, it works out justly. Ethical standards differ in different places at different times. They are, indeed, always changing. Therefore, in regard to all matters which belong to the sphere of what we commonly call morals, there are in every community some who approve of a given act, others who disapprove of it, yet others who regard it with indifference. In such a shifting sphere we cannot legislate with the certainty of carrying the whole community with us, nor can we properly introduce the word "crime," which ought to indicate only an action of so gravely anti-social nature that there can be no possibility of doubt about it.

It is, however, important to understand the marked national differences in the reaction to these slightly or dubiously anti-social acts, for such differences rest on ancient tradition, and are to some extent the expression of the genius of a people, though they are not the absolutely immutable product of racial constitution, and, within limits, they undergo transformation. It thus happens that acts which in some countries are pursued by the law and punished as crime, are in other countries untouched by the law, and left to the social reaction of the community. It becomes, therefore, of some importance to compare national differences in the attitude towards immorality, to find out whether the attempt to repress it directly, by law, is more effective, [265]or less effective, than the method of leaving it to social reaction.

In many respects France and Germany present a remarkable contrast in their respective methods of dealing with immorality. The contrast has only existed since the sweeping legal reforms which followed the Revolution in France. In old France the laws against sexual and religious offences were extremely severe, involving in some cases death at the stake, and even during the eighteenth century this extreme penalty of the law was sometimes carried out. The police were active, their methods of investigation elaborate and thorough, yet the rigour of the law and the energy of the police signally failed to suppress irreligion and immorality in eighteenth-century France. The Revolution, by popularizing the opinions of the more enlightened men of the time, and by giving to the popular voice an authority it had never possessed before, remoulded the antiquated ecclesiastical laws in accordance with the ideas of the average modern man. In 1791 nearly all the ancient laws against immorality, which had proved so ineffectual, were flung away, and when in 1810 Napoleon established the great penal code which bears his name, he was careful to limit to a minimum the moral offences of which the law was empowered to take cognisances, and—acting certainly in accordance with deeply rooted instincts of the French people—he avoided any useless or dangerous interference with private life and the freedom of the individual. The penal code in France remains substantially the same to-day, while [266]the other countries which have constructed their codes on the French model have shown similar tendencies.

In Germany, and more especially in Prussia, which now dominates German opinion, a very different tendency prevails. The German feels nothing of that sensitive jealousy with which the French seek to guard private life and the rights of the individual. He tolerates a police system which, as Fuld has pointed out, is the most military police system in the world, and he makes little complaint of the indiscriminating thoroughness, even harshness, with which it exercises its functions. "The North German," as a German lawyer puts it, "gazes with sacred respect on every State authority, and on every official, especially on executive and police functionaries; he complacently accepts police inquisition into his private life, and the regulation of his behaviour by law and police affects his impulse of freedom in a relatively slight manner. Hence the law-maker's interference with his private life seems to him a customary and not too injurious encroachment on his individuality." [197] It thus comes about that a great many acts, of for the most part unquestioned immoral character—such as incest, the procuring of women for immoral purposes, and acts of a homosexual character—which, when adults are alone concerned, the French leave to be dealt with [267]by the social reaction, are in Germany directly dealt with by the law. These things and the like are viewed in France with fully as much detestation as in Germany, but while the German considers that that detestation is itself a reason for inflicting a legal penalty on the detested act, the Frenchman considers that to inflict a punishment upon such acts by law is an inadmissible interference of the State in private affairs, and an unnecessary interference since the social reaction is quite adequate. In Germany, Dr. Wilhelm points out, a man who allows his daughter's fiancé to stay overnight in his house with her is liable to be dragged before the police court and sent to prison for procuring immorality; [198] to a Frenchman this is a shocking and inconceivable insult to private rights. [199] So also with the German legal attitude towards sexual inversion. The German method of [268]dragging private scandals into the glare of day and investigating them at interminable length in the law courts is a perpetual source of astonishment to Frenchmen. They point out that not only does this method defeat its own end by concentrating attention on the abnormal practices it attacks, but it adds dignity to them; a certain small section of the community justifies and upholds these practices, but while in France this section has no reason to come prominently before the public since it has no grievances demanding redress, in Germany the existence of a cause to advocate in the name of justice has produced a serious and imposing body of literature which has no parallel in France. [200] Thus, as Wilhelm points out, we find exactly opposite methods adopted in Germany and France to obtain the same ends: "In Germany, punishment on account of alleged injury to general interests; in France absence of punishment in order to avoid injury to general interests; in Germany the police baton is called for in order to ward off threatened injury, while in France it is feared that the use of the police baton will itself cause the injury."

The question naturally arises: Which method is the more effective? Wilhelm finds that these differences in [269]national attitude towards immorality have not by any means rendered immorality more prevalent in France than in Germany; on the contrary, though extra-conjugal intercourse is in Germany almost a crime, sexual offences against children are far more prevalent than in France, while family life is at least as stable in France as in Germany, and more intimate. "The freer way of regarding sexual matters and its results in legislation have, as compared to Germany, in no respect led to more immoral conditions, while, on the other hand, it has been the reason why the vigorous agitation which we find in Germany for certain legal reforms in respect to sexuality are quite unknown."

It is forgotten, in Germany and in some other countries, sometimes even in France, that to bring immorality within reach of the arm of the law is not necessarily by any means to make the actual penalty, in the largest sense of the term, more severe. So long as he retains the good opinion of his fellows, imprisonment is no injury to a man; it has happened to some of our most distinguished and respected public men. The bad opinion of his fellows, even when the law is powerless to touch him, is often an irretrievable injury to a man. We do not fortify the social reaction, in most matters, when we attempt to give it a legal sanction; we do not even need to fortify it, for it is sometimes harsher and more severe than the law, overlooking or not knowing all the extenuating circumstances. In France, as in England, the force of social opinion, independently of the law, is exceedingly and perhaps excessively strong.

[270]In England, however, we see an attitude towards immorality which differs alike from the French attitude and the German attitude, though it has points of contact with both. The distinctive feature of the Englishman's attitude is his spirit of extreme individualism (which distinguishes him from the German) combined with the religious nature of his moral fervour (which distinguishes him from the Frenchman), both being veiled by a shy prudery (which distinguishes him alike from the Frenchman and the German). The Englishman's reverence for the individual's rights goes beyond the Frenchman's, for in France there is a tendency to subordinate the individual to the family, and in England the interests of the individual predominate. But while in France the laws have been re-moulded to the national temperament, this has not been the case to anything like the same extent in England, where in modern times no great revolution has occurred to shake off laws which still by their antiquity, rather than by their reasonableness, retain the reverence of the people. Thus it comes about that, on the legal side the English attitude towards immorality in many respects resembles the German attitude. Yet undoubtedly the most fundamental element in the English attitude is the instinct for personal freedom, and even the religious fervour of the moral impulse has strengthened the individualistic element. [201] We see this clearly in the fact [271]that England has even gone beyond France in rejecting the control of prostitutes. The French are striving to abolish such control, but in England where it was never extensively established it has long been abolished, leaving only a few faint traces behind. It is abhorrent to the English mind that even the most degraded specimens of humanity should be compulsorily deprived of rights over their own persons, even when it is claimed that the deprivation of such rights might be for the benefit of the community. In no country, perhaps, is the prostitute so free to parade the streets in the exercise of her profession as in England, and in no country is public opinion so intolerant of even the suspicion of a mistake by the police in the exercise of that very limited control over prostitutes which they possess. The freedom of the prostitute in England is further guaranteed by the very fervour of English religious feeling; for active interference with prostitutes involves regulation of prostitution, and that implies a national recognition of prostitution which to a very large section of the English people would be altogether repellant. Thus English love of freedom and English love of God combine to protect the prostitute. It has to be added that this result is by no means, as some have imagined, hostile to morality. It is the opinion of many foreign observers that in this matter London, for all its freedom, compares favourably with many other large cities where prostitution is severely regulated by the police and so far as possible concealed. For the police can never become the agents of any morality of the heart, and all the repression in the world can only touch the surface of life.

[272]The English attitude, again, is characteristically seen in the method of dealing with homosexual practices and other similar sexual aberrations. Here, legally, England is closer to Germany than to modern France. No country in the world, it is often said, has preserved by tradition and even maintained by recent accretion such severe penalties against homosexual offences as England. Yet, unlike the Germans, the English do not actively prosecute in these cases and are usually content to leave the law in abeyance, so long as public order and decency are reasonably maintained. English people, like the French people, are by no means impressed by the advantages of the German system by which purely private scandals are made public scandals, to be set forth day after day in all their details before the court, and discussed excitedly by the whole population. Yet the English law in this matter is still very widely upheld. There are very many English people who think that the fact that homosexuality is disgusting to most people is a reason for punishing it with extreme severity. Yet disgust is a matter of taste, we cannot properly impart it into our laws; a disgusting person is not necessarily a criminal person, or we shall have to enact that many inmates of our hospitals and lunatic asylums be hanged. There is thus a fundamental inconsistency in the English method of dealing with immorality; it is made up of opposite views, some of them extreme in contrary directions. But by virtue of the national tendency to compromise, these conflicting tendencies work in a fairly harmonious manner. The result is that the general state of English morality—notwithstanding, [273]and perhaps partly by reason of, its prudish anxiety to leave unpleasant matters alone—is at least as satisfactory as that of countries where much more logical and thorough methods are in favour.

In the United States we see yet another attitude towards immorality. It is, indeed, related to the English attitude, necessarily so, since the most ancient and fundamental element of it was carried over to America by the English Puritans, who cherished in the extreme form alike the English passion for individualism and the English fervour of religious idealism. These germs have been too potent for destruction even under all the new influences of American life. But they are not altogether in harmony with those influences, and the result has been that the American attitude towards immorality has sometimes looked rather like a caricature of the English method. The influx of a vast and racially confused population with the over-rapid development of urbanization which has necessarily followed, opens an immense field for idealistic individualism to attempt reforms. But this individualism has not been held in check by the English spirit of compromise, which is not a part of Puritanism, and it has thus tended alike to excess and to impotence. This result is brought about partly by facilities for individualistic legislation not voicing the tendencies of the whole population, and therefore fatally condemned to sterility, and partly by the fact that in a new and rapidly developed civilization it is impossible to secure an army of functionaries who may be trusted to deal with the regulation of delicate and complex moral [274]questions in regard to which the community is not really agreed. The American police are generally admitted to be open with special frequency to the charge of ineffectiveness and venality. It is not so often realized that these defects are fostered by the impossible nature of the tasks which are imposed on the American police.

This aspect of the matter has been very clearly set forth by Dr. Fuld, of Columbia University, in his able and thorough book on police administration. [202] He shows that, though the American police system as a system has defects which need to be remedied, it is not true that the individual members of the American police forces are inferior to those of other countries; on the contrary, they are, in some respects, superior; it is not a large proportion which sells the right to break the law. [203] Their most serious defects are due to the impracticable laws and regulations made by inexperienced legislators. These laws and ordinances in many cases cannot possibly be enforced, and the weak police officers accept money from the citizen for not enforcing rules which in any case they could not enforce. "The American police forces," says Fuld, "have been corrupted almost solely by the statutes.... The real blame attaches not to the policeman who accepts a bribe temptingly offered him, nor to the bribe-giver who seeks by giving a bribe to make the best [275]possible business arrangement, but rather to the law, which by giving the police a large and uncontrolled discretion in the enforcement of the law places a premium upon bribe-giving and bribe-taking." This state of things is rendered possible by the fact that the duties of the police are not confined to matters affecting crime and public order—matters which the whole community consider essential, and in regard to which any police negligence is counted a serious charge—but are extended to unessential matters which a considerable section of the community, including many of the police themselves, view with complete indifference. It is impossible to regard seriously a conspiracy to defeat laws which a large proportion of citizens regard as unnecessary or even foolish. It thus unfortunately comes about that the charge brought against the American police that "it sells the right to break the law" has not the same grave significance which it would have in most countries, for the rights purchased in America may in most countries be obtained without purchase. "An act ought to be made criminal," as Fuld rightly lays down, "only when it is socially expedient to punish its criminality.... The American people, or at least the American legislators, do not make this clear distinction between vice and crime. There seems to be a feeling in America that unless a vice is made a crime, the State countenances the vice and becomes a party to its commission. There are unfortunately a large number of men in the community who believe that they have satisfied the demands made upon them to lead a virtuous life by incorporating into some statute the [276]condemnation of a particular vicious act as a crime." [204] This special characteristic of American laws, with its failure to distinguish between vice and crime, is clearly a legacy of the early Puritans. The Puritans carried over to New England independent autonomous laws of morality, and were contemptuous of external law. The sturdy pioneers of the first generation were faithful to that attitude, and were not even guilty of punishing witches. But, when the opportunity came, their descendants could not resist the temptation to erect an external law of morals, and, like the Calvinists of Geneva, they set up an inquisition backed by the secular arm. It was not until the days of Emerson that American Puritanism regained autonomous freedom and moved in the same air as Milton. But in the meantime the mischief had been done. Even to-day an inquisition of the mails has been established in the United States. It is said to be unconstitutional, and one can well believe that that is so, but none the less it flourishes under the protection of what a famous American has called "the never-ending audacity of elected persons." But to allow subordinate officials to masquerade in the Postal Department as familiars of the inquisition, in the supposed interests of public morals, is a dangerous policy. [205] Its deadening [277]influence on national life cannot fail sooner or later to be realized by Americans. To moralize by statute is idle and unsatisfactory enough; but it is worse to attempt to moralize by the arbitrary dicta of minor government officials.

It is interesting to observe the methods which find favour in some parts of the United States for dealing with the trade in alcoholic liquors. Alcohol is, on the one hand, a poison; on the other hand, it is the basis of the national drinks of every civilized country. Every state has felt called upon to regulate its sale to more or less extent, in such a way that (1) in the interests of public health alcohol may not be too easily or too cheaply obtainable, that (2) the restraints on its sale may be a source of revenue to the State, and that (3) at the same time this regulation of the sale may not be a vexatious and useless attempt to interfere unduly with national customs. States have sought to attain these ends in various ways. The sale of alcohol may be made a State monopoly, as in Russia, or, again, it may be carried on under disinterested municipal or other control, as by the Gothenburg system of Sweden or the Samlag system of Norway. [206] In England the easier and more usual plan is adopted of heavily [278]taxing the sale, with, in addition, various minor methods for restraining the sale of alcoholic drinks and attempting to improve the conditions under which they are sold.

In France an ingenious method of influencing the sale of alcohol has lately been adopted, in the interests of public health, which has proved completely successful. The French national drink is light wine, which may be procured in abundance, of excellent and wholesome quality and very cheaply, provided it is not heavily taxed. But of recent years there has been a tendency in France to consume in large quantity the heavy alcoholic spirits, often of a specially deleterious kind. The plan has been adopted of placing a very high duty on distilled beverages and reducing the duty on the light wines, as well as beer, so that a wholesome and genuine wine can be supplied to the consumer at as low a price as beer. As a result the French consumer has shown a preference for the cheap and wholesome wine which is really his national drink, and there is an enormous fall in the consumption of spirits. Whereas formerly the consumption of brandy in French towns amounted to seven or eight litres of absolute alcohol per head, it has now fallen in the large towns to 4.23 litres. [207]

In America, however, there is a tendency to deal with the sale of alcohol totally opposed to that which nearly everywhere prevails in Europe. When in Europe a man abandons the use of alcohol he makes no demand on his fellow men to follow his example, or, if he does, he is [279]usually content to employ moral suasion to gain this end. But in the United States, where there is no single national drink, a large number of people have abandoned the use of alcohol, and have persuaded themselves that its use by other people is a vice, for it is not universally recognized that—"Selfishness is not living as one wishes to live, it is asking others to live as one wishes to live." Moreover, as in the United States the medieval confusion between vice and crime still subsists among a section of the population, being a part of the national tradition, it became easy to regard the drinking of alcohol as a crime and to make it punishable. Hence we have "Prohibition," which has prevailed in various States of the Union and is especially associated with Maine, where it was established in a crude form so long ago as 1846 and (except for a brief interval between 1856 and 1858) has prevailed until to-day. The law has never been effective. It has been made more and more stringent; the wildest excuses of arbitrary administration have been committed; scandals have constantly occurred; officials of iron will and determination have perished in the faith that if only they put enough energy into the task the law might, after all, be at last enforced. It was all in vain. It has always been easy in the cities of Maine for those to obtain alcohol who wished to obtain it. Finally, in 1911, by a direct Referendum, the majority by which the people of Maine are maintaining Prohibition has been brought down to 700 in a total poll of 120,000, while all the large towns have voted for the repeal of Prohibition by enormous majorities. The people of Maine are evidently [280]becoming dimly conscious that it is worse than useless to make laws which no human power can enforce. "The result of the vote," writes Mr. Arthur Sherwell, an English social Reformer, not himself opposed to temperance legislation, "from every point of view, and not least from the point of view of temperance, is eminently unsatisfactory, and it unquestionably creates a position of great difficulty and embarrassment for the authorities. A majority of 700 in a total poll of 120,000 is clearly not a sufficient mandate for a drastic law which previous experience has conclusively shown cannot be enforced successfully in the urban districts of the State." Successful enforcement of prohibition on a State basis would appear to be hopeless. The history of Prohibition in Maine will for ever form an eloquent proof of the mischief which comes when the ancient ecclesiastical failure to distinguish between the sphere of morals and the sphere of law is perpetuated under the conditions of modern life. The attempt to force men to render unto Cæsar the things which are God's must always end thus.

In these matters we witness in America the survival of an ancient tradition. The early Puritans were individualists, it is true, but their individualism took a theocratic form, and, in the name of God, they looked upon crimes and vices equally and indistinguishably as sins. We see exactly the same point of view in the Penitentials of the ninth century, which were ecclesiastical codes dealing, exactly in the same spirit and in the same way, with crime and with vice, recognizing nothing but a certain difference in degree between murder and masturbation. [281]In the ninth century, and even much later, in Calvin's Geneva and Cotton Mather's New England, it was possible to carry into practice this theocratic conception of the unity of vices and crimes and the punishment as sins of both alike, for the community generally accepted that point of view. But that is very far from being the case in the United States of to-day. The result is that in America in this respect we find a condition of things analogous to that which existed in France, before the Revolution remoulded the laws in accordance with the temperament of the nation. Laws and regulations of the medieval kind, for the moral ordering of the smallest details of life, are still enacted in America, but they are regarded with growing contempt by the community and even by the administrators of the laws. It is realized that such minute inquisition into the citizen's private life can only be effectively carried out where the citizen himself recognizes the divine right of the inquisitor. But the theocratic conception of life no longer corresponds to American ideas or American customs; this minute moral legislation rests on a basis which in the course of centuries has become rotten. Thus it has come about that nowhere in the world is there so great an anxiety to place the moral regulation of social affairs in the hands of the police; nowhere are the police more incapable of carrying out such regulation.

When we thus bear in mind the historical aspect of the matter we can understand how it has come about that the individualistic idealist in America has been much more resolute than in England to effect reforms, much more [282]determined that they shall be very thorough and extreme reforms, and, especially, much more eager to embody his moral aspirations in legal statutes. But his tasks are bigger than in England, because of the vast, unstable, heterogeneous and crude population he has to deal with, and because, at the same time, he has no firmly established centralized and reliable police instrument whereby to effect his reforms. The fiery American moral idealist is determined to set out for the Kingdom of Heaven at once, but every steed he mounts proves broken-winded, and speedily drops down by the wayside. Don Quixote sets the lance at rest and digs his spurs into Rosinante's flanks, but he fails to realize that, in our modern world, he will never bear him anywhere near the foe.

If we wish to see a totally different national method of regarding immorality we may turn to Russia. Here also we find idealism at work, but it is not the same kind of idealism, since, far from desiring to express itself by force, its essential basis is an absolute disbelief in force. Russia, like France, has inherited from an ancient ecclesiastical domination an extremely severe code of regulations against immorality and all sexual aberrations, but, unlike France, it has not cast them off in order to mould the laws in accordance with national temperament. The essence of the Russian attitude in these matters is a sympathy with the individual which is stronger than any antipathy aroused by his immoral acts; his act is a misfortune rather than a sin or a crime. We may observe this attitude in the kindly and helpful fashion in which the Russian assists along the streets his fellow-man who has [283]drunk too much vodka, and, on a higher plane, we see the same spirit of forgiving human tenderness in the Russian novelists, most clearly in the greatest and most typically national, in Dostoieffsky and in Tolstoy. The harsh rigidity of the old Russian laws had not the slightest influence, either in changing this national attitude or in diminishing the prevalence, at the very least as great as elsewhere, of sexual laxity or sexual aberration. Nowadays, as Russia attains national self-consciousness, these laws against immorality are being slowly remoulded in accordance with the national temperament, and in some respects—as in its attitude towards homosexuality and the introduction in 1907 of what is practically divorce by mutual consent—they allow a freedom and latitude scarcely equalled in any other country. [208]

Undoubtedly there is, within certain limits, mutual action and reaction in these matters among nations. Thus the influence of France has led to the abolition of the penalty against homosexual practices in many countries, notably Holland, Spain, Portugal, and, more recently, Italy, while even in Germany there is a strong and influential party, among legal as well as medical authorities, in favour of taking the same step. On the other hand, France has in some matters of detail departed from her general principle in these matters, and has, for [284]instance—without doubt in an altogether justifiable manner—taken part in the international movement against what is called the white slave trade. This mutual reaction of nations is well recognized by the more alert and progressive minds in every country, jealous of any undue interference with liberty. When, for instance, a Bill is introduced in the English Parliament for promoting inquisitorial and vexatious interference with matters that are not within the sphere of legislation it is eagerly discussed in Germany before even its existence is known to most people in England, not so much out of interest in English Affairs as from a sensitive dread that English example may affect German legislation. [209]

Not only, indeed, have we to recognize the existence of these clearly marked and profound differences in legislative reaction to immorality. We have also to realize that at different periods there are general movements, to some extent overpassing national bounds, of rise and of fall in this reaction.

A sudden impulse seizes on a community, and spreads to other communities, to attempt to suppress some form of immorality by law. Such attempts, as we know, have always ended in failure or worse than failure, for laws [285]against immorality are either not carried out, or, if they are carried out, it is at once realized that new evils are created worse than the original evils, and the laws speedily fall into abeyance or are repealed. That has been repeatedly seen, and is well illustrated by the history of prostitution, a sexual manifestation which for two thousand years all sorts of persons in authority have sought to suppress off-hand by law or by administrative fiat. From the time when Christianity gained full political power, prostitution has again and again been prohibited, under the severest penalties, but always in vain. The mightiest emperors—Theodosius, Valentinian, Justinian, Karl the Great, St. Louis, Frederick Barbarossa—all had occasion to discover that might was here in vain, and worse than in vain, that they could not always obey their own moral ordinances, still less coerce their subjects into doing so, and that even so far as, on the surface, they were successful they produced results more pernicious than the evils they sought to suppress. The best known and one of the most vigorous of these attempts was that of the Empress Maria Theresa in Vienna; but all the cruelty and injustice of that energetic effort, and all the stringent, ridiculous, and brutal regulations it involved—its prohibition of short dresses, its inspection of billiard-rooms, its handcuffing of waitresses, its whippings and its tortures—proved useless and worse than useless, and were soon quietly dropped. [210] No more fortunate were more recent municipal attempts in England and America (Portsmouth, Pittsburgh, New York, etc.) to [286]suppress prostitution off-hand; for the most part they collapsed even in a few days.

The history of the legal attempts to suppress homosexuality shows the same results. It may even be said to show more, for when the laws against homosexuality are relaxed or abolished, homosexuality becomes, not perhaps less prevalent (in so far as it is a congenital anomaly we cannot expect its prevalence to be influenced by law), but certainly less conspicuous and ostentatious. In France, under the Bourbons, the sexual invert was a sacrilegious criminal who could legally be burnt at the stake, but homosexuality flourished openly in the highest circles, and some of the kings were themselves notoriously inverted. Since the Code Napoléon was introduced homosexual acts, per se, have never been an offence, yet instead of flourishing more vigorously, homosexuality has so far receded into the background that some observers regard it as very rare in France. In Germany and England, on the other hand, where the antiquated laws against this perversion still prevail, homosexuality is extremely prominent, and its right to exist is vigorously championed. The law cannot suppress these impulses and passions; it can only sting them into active rebellion. [211]

But although it has invariably been seen that all attempts to make men moral by law are doomed to disappointment, spasmodic attempts to do so are continually being made afresh. No doubt those who make these [287]attempts are but a small minority, people whose good intentions are not accompanied by knowledge either of history or of the world. But though a minority they can often gain a free field for their activities. The reason is plain. No public man likes to take up a position which his enemies may interpret as favourable to vice and probably due to an anxiety to secure legal opportunities for his own enjoyment of vice. This consideration especially applies to professional politicians. A Member of Parliament, who must cultivate an immaculately pure reputation, feels that he is also bound to record by his vote how anxious he is to suppress other people's immorality. Thus the philistine and the hypocrite join hands with the simple-minded idealist. Very few are left to point out that, however desirable it is to prevent immorality, that end can never be attained by law.

During the past ten years one of these waves of enthusiasm for the moralization of the public by law has been sweeping across Europe and America. Its energy is scarcely yet exhausted, and it may therefore be worthwhile to call attention to it. The movement has shown special activity in Germany, in Holland, in England, in the United States, and is traceable in a minor degree in many other countries. In Germany the Lex Heintze in 1900 was an indication of the appearance of this movement, while various scandals have had the result of attracting an exaggerated amount of attention to questions of immorality and of tightening the rigour of the law, though as Germany already holds moral matters in a very complex web of regulations it can scarcely [288]be said that the new movement has here found any large field of activity. In Holland it is different. Holland is one of the traditional lands of freedom; it was the home of independent intellect, of free religion, of autonomous morals, when every other country in Europe was closed to these manifestations of the spirit, and something of the same tradition has always inspired its habits of thought, even when they have been largely Puritanic. So that there was here a clear field for the movement to work in, and it has found expression, of a very thorough character indeed, in the new so-called "Morals Law" which was passed in 1911 after several weeks' discussion. Undoubtedly this law contains excellent features; thus the agents of the "white slave trade," who have hitherto been especially active in Holland, are now threatened with five years' imprisonment. Here we are concerned with what may fairly be regarded as crime and rightly punishable as such. But excellent provisions like these are lost to sight in a great number of other paragraphs which are at best useless and ridiculous, and at worst vexatious and mischievous in their attempts to limit the free play of civilization. Thus we find that a year's imprisonment, or a heavy fine, threatens any one who exposes any object or writing which "offends decency," a provision which enabled a policeman to enter an art-pottery shop in Amsterdam and remove a piece of porcelain on which he detected an insufficiently clothed human figure. Yet this paragraph of the law had been passed with scarcely any opposition. Another provision of this law deals extensively with the difficult and complicated question of the "age of consent" [289]for girls, which it raises to the age of twenty-one, making intercourse with a girl under twenty-one an offence punishable by four years' imprisonment. It is generally regarded as desirable that chastity should be preserved until adult age is well established. But as soon as sexual maturity is attained—which is long before what we conventionally regard as the adult age, and earlier in girls than in boys—it is impossible to dismiss the question of personal responsibility. A girl over sixteen, and still more when she is over twenty, is a developed human being on the sexual side; she is capable of seducing as well as of being seduced; she is often more mature than the youth of corresponding age; to instruct her in sexual hygiene, to train her to responsibility, is the proper task of morals. But to treat her as an irresponsible child, and to regard the act of interfering with her chastity when her consent has been given, as on a level with an assault on an innocent child merely introduces confusion. It must often be unjust to the male partner in the act; it is always demoralizing and degrading to the girl whom it aims at "protecting"; above all, it reduces what ought to be an extremely serious crime to the level of a merely nominal offence when it punishes one of two practically mature persons for engaging with full knowledge and deliberation in an act which, however undesirable, is altogether according to Nature. There is here a fatal confusion between a crime and an action which is at the worst morally reprehensible and only properly combated by moral methods.

These objections are not of a purely abstract or theoretical character. They are based on the practical outcome [290]of such enactments. Thus in the State of New York the "age of consent" was in former days thirteen years. It was advanced to fourteen and afterwards to sixteen. This is the extreme limit to which it may prudently be raised, and the New York Society for the Prevention of Cruelty to Children, which had taken the chief part in obtaining these changes in the law, was content to stop at this point. But without seeking the approval of this Society, another body, the White Cross and Social Purity League, took the matter in hand, and succeeded in passing an amendment to the law which raised the age of consent to eighteen. What has been the result? The Committee of Fourteen, who are not witnesses hostile to moral legislation, state that "since the amendment went into effect making the age of consent eighteen years there have been few successful prosecutions. The laws are practically inoperative so far as the age clause is concerned." Juries naturally require clear evidence that a rape has been committed when the case concerns a grown-up girl in the full possession of her faculties, possibly even a clandestine prostitute. Moreover, as rape in the first degree involves the punishment of imprisonment for twenty years, there is a disinclination to convict a man unless the case is a very bad one. One judge, indeed, has asserted that he will not give any man the full penalty under the present law, so long as he is on the bench. The natural result of stretching the law to undue limits is to weaken it. Instead of being, as it should be, an extremely serious crime, rape loses in a large proportion of cases the opprobrium which rightly belongs to it. It is, therefore, [291]a matter for regret that in some English dominions there is a tendency to raise the "age of consent" to an unduly high limit. In New South Wales the Girls' Protection Act has placed the age of consent at sixteen, and in the case of offences by guardians, schoolmasters, or employers at seventeen years, notwithstanding the vigorous opposition of a distinguished medical member of the Legislative Council (the Hon. J.M. Creed), who presented the arguments against so high an age. Not a single prosecution has so far occurred under this Act.

In England the force of the moral legislation wave has been felt, but it has been largely broken against the conservative traditions of the country, which make all legislation, good or bad, very difficult. A lengthy, elaborate and high-strung Prevention of Immorality Bill was introduced in the House of Commons by a group of Nonconformists mainly on the Liberal side. This Bill was very largely on the lines of the Dutch law already mentioned; it proposed to raise the age of consent to nineteen; making intercourse with a girl under that age felony, punishable by five years' penal servitude, and any attempt at such intercourse by two years' imprisonment. Such a measure would be, it may be noted, peculiarly illogical and inconsistent in England and Scotland, in both of which countries (though their laws in these matters are independent) even a girl of twelve is legally regarded as sufficiently mature and responsible to take to herself a husband. At one moment the Bill seemed to have a chance of becoming law, but a group of enlightened and independent Liberals, realizing that such [292]a measure would introduce intolerable social conditions, organized resistance and prevented the acceptance of the Bill.

The chief organization in England at the present time for the promotion of public morality is the National Council of Public Morals, which is a very influential body, with many able and distinguished supporters. Law-enforced morality, however, constitutes but a very small part of the reforms advocated by this organization, which is far more concerned with the home, the school, the Church, and the influences which operate in those spheres. It has lately to a considerable extent joined hands with the workers in the eugenic movement, advocating sexual hygiene and racial betterment, thus allying itself with one of the most hopeful movements of our day. Certainly there may be some amount of zeal not according to knowledge in the activities of the National Council of Public Morals, but there is also very much that is genuinely enlightened, and the very fact that the Council includes representatives from so many fields of action and so many schools of thought largely saves it from running into practical excesses. Its influence on the whole is beneficial, because, although it may not be altogether averse to moral legislation, it recognizes that the policeman is a very feeble guide in these matters, and that the fundamental and essential way of bettering the public morality is by enlightening the private conscience.

In the United States conditions have been very favourable, as we have seen, for the attempt to achieve social reform by moral legislation, and nowhere else in the [293]world has it been so clearly demonstrated that such attempts not only fail to cure the evils they are aimed at, but tend to further evils far worse than those aimed at. A famous example is furnished by the so-called "Raines Law" of New York. This Act was passed in 1896, and was intended to regulate the sale of alcoholic liquor in all its phases throughout the State. The grounds for bringing it forward were that the number of drinking saloons was excessive, that there was no fixed licensing fee, that too much discretionary power was allowed to the local commissioner; while, above all, the would-be Puritanic legislators wished so far as possible to suppress the drinking of alcoholic liquors on Sunday. To achieve these objects the licensing fee was raised to four times its usual amount previously to this enactment; heavy penalties, including the forfeiture of a large surety-bond, were established, and more surely to prevent Sunday drinking only hotels, not ordinary drinking bars, were allowed, with many stringent restrictions, to sell drink on that day. In order that there should be no mistake, it was set forth in the Act that the hotel must be a real hotel with at least ten properly furnished bedrooms. The legislators clearly thought that they had done a fine piece of work. "Seldom," wrote the Committee of Fourteen, who are by no means out of sympathy with the aims of this legislation, "has a law intended to regulate one evil resulted in so aggravated a phase of another evil directly traceable to its provisions." [212]

[294]In the first place, the passing of this law alarmed the saloon keepers; they realized that it had them in a very tight grip, and they suspected that it might be strictly enforced. They came to the conclusion, therefore, that their best policy would be to accept the law and to conform themselves to its provisions by converting their drinking bars into real hotels, with ten properly furnished bedrooms, kitchen, and dining-room. The immediate result was the preparation of ten thousand bedrooms, for which there was of course no real demand, and by 1905 there were 1407 certificated hotels in Manhattan and the Bronx alone, about 1150 of these hotels having probably been created by the Raines Law.

But something had to be done with all these bedrooms, properly furnished according to law, for it was necessary to meet the heavy expenses incurred under the new conditions created by the law. The remedy was fairly obvious. These bedrooms were excellently adapted to serve as places of assignation and houses of prostitution. Many hotel proprietors became practically brothel keepers, the women in some cases becoming boarders in the hotels; and saloons and hotels have entered into a kind of alliance for their mutual benefit, and are sometimes indeed under the same management. When a hotel is thus run in the interests of prostitution it has what may be regarded as a staff of women in the neighbouring streets. In some districts of New York it is found that practically all the prostitutes on the street are connected with some Raines Law hotel. These wise moral legislators of New York thought they were placing a penalty on [295]Sunday drinking; what they have really done is to place a premium on prostitution [213].

An attempt of a different kind to strike a blow at once at alcohol and at prostitution has been made in Chicago, with equally unsatisfactory results. Drink and prostitution are connected, so intimately connected, indeed, that no attempt to separate them can ever be more than superficially successful even with the most minute inquisition by the police, least of all by police officers, who, in Chicago, we are officially told, are themselves sometimes found, when in uniform and on duty, drinking among prostitutes in "saloons." On May 1, 1910, the Chicago General Superintendent of Police made a rule prohibiting the sale of liquor in houses of prostitution. On the surface this rule has in most cases been observed (though only on the surface, as the field-workers of the Chicago Vice Commission easily discovered), and a blow was thus dealt to those houses which derive a large profit from the sale of drinks on account of the high price at which they retail them. Yet even so far as the rule has been obeyed, and not evaded, has it effected any good? On this point we may trust the evidence of the Vice Commissioners of Chicago, a municipal body appointed by the Mayor and [296]City Council, and not anxious to discredit the actions of their Police Superintendent. "As to the benefits derived from this order, either to the inmates or the public, opinions differ," they write. "It is undoubtedly true that the result of the order has been to scatter the prostitutes over a wide territory and to transfer the sale of liquor carried on heretofore in houses to the near-by saloon-keepers, and to flats and residential sections, but it is an open question whether it has resulted in the lessening of either of the two evils of prostitution and drink." [214] That is a mild statement of the results. It may be noted that there are over seven thousand drinking saloons in Chicago, so that the transfer is not difficult, while the migration to flats—of which an enormous number have been taken for purposes of prostitution (five hundred in one district alone) since this rule came into force—may indeed enable the prostitute to live a freer and more humanizing life, but in no faintest degree diminishes the prevalence of prostitution. From the narrow police standpoint, indeed, the change is a disadvantage, for it shelters the prostitute from observation, and involves an entirely new readjustment to new conditions.

It cannot be said that either the State of New York or the city of Chicago has been in any degree more fortunate in its attempts at moral legislation against prostitution than against drinking. As we should expect, the laws of New York regard prostitution and the prostitute with an eye of extreme severity. Every prostitute in New York, [297]by virtue of the mere fact that she is a prostitute, is technically termed a "vagrant." As such she is liable to be committed to the workhouse for a term not exceeding six months; the owner of houses where she lives may be heavily fined, as she herself may be for living in them, and the keeper of a disorderly house may be imprisoned and the disorderly house suppressed. It is not clear that the large number of prostitutes in New York have been diminished by so much as a single unit, but from time to time attempts are made in some district or another by an unusually energetic official to put the laws into execution, and it is then possible to study the results. When disorderly houses are suppressed on a large scale, there are naturally a great number of prostitutes who have to find homes elsewhere in order to carry on their business. On one occasion, under the auspices of District-Attorney Jerome, it is stated by the Committee of Fourteen that eight hundred women were reported to be turned out into the street in a single night. For many there are the Raines Law hotels. A great many others take refuge in tenement houses. Such houses in congested districts are crowded with families, and with these the prostitute is necessarily brought into close contact. Consequently the seeds of physical and mental disorder which she may bear about her are disseminated in a much more fruitful soil than they were before. Moreover, she is compelled by the laws to exert very great energy in the pursuit of her profession. As it is an offence to harbour her she has to pay twice as high a rent as other people would have to pay for the same rooms. She may have [298]to pay the police to refrain from molesting her, as well as others to protect her from molestation. She is surrounded by people whom the law encourages to prey upon her. She is compelled to exert her energies at highest tension to earn the very large sums which are necessary, not to gain profits for herself, but to feed all the sharks who are eager to grab what is given to her. The blind or perverse zeal of the moral legislators not only intensifies the evils it aims at curing, but it introduces a whole crop of new evils.

How large these sums are we may estimate by the investigation made by the Vice Commissioners of Chicago. They conclude after careful inquiry that the annual profits of prostitution in the city of Chicago alone amount to between fifteen to sixteen million dollars, and they regard this as "an ultra-conservative estimate." It is true that not all this actually passes through the women's hands and it includes the sales of drinks. If we confine ourselves strictly to the earnings of the girls themselves it is found to work out at an average for each girl of thirteen hundred dollars per annum. This is more than four times as much as the ordinary shop-girl can earn in Chicago by her brains, virtue, and other good qualities. But it is not too much for the prostitute's needs; she is compelled to earn so large an income because the active hostility of society, the law, and the police facilitates the task of all those persons—and they are many—who desire to prey upon her. Thus society, the law, and the police gain nothing for morals by their hostility to the prostitute. On the contrary, they give strength and [299]stability to the very vice they nominally profess to fight against. This is shown in the vital matter of the high rents which it is possible to obtain where prostitution is concerned. These high rents are the direct result of legal and police enactments against the prostitute. Remove these enactments and the rents would automatically fall. The enactments maintain the high rents and so ensure that the mighty protection of capital is on the side of prostitution; the property brings in an exorbitant rate of interest on the capital invested, and all the forces of sound business are concerned in maintaining rents. So gross is the ignorance of the would-be moral legislators—or, some may think, so skilful their duplicity—that the methods by which they profess to fight against immorality are the surest methods for enabling immorality not merely to exist—which it would in any case—but to flourish. A vigorous campaign is initiated against immorality. On the surface it is successful. Morality triumphs. But, it may be, in the end we are reminded of the saying of M. Desmaisons in one of Remy de Gourmont's witty and profound Dialogues des Amateurs: "Quand la morale triomphe il se passe des choses très vilaines."

The reason why the "triumphs" of legislative and administrative morality are really such ignominious failures must now be clear, but may again be repeated. It is because on matters of morals there is no unanimity of opinion as there is in regard to crime. There is always a large section of the community which feels tolerant towards, and even practises, acts which another section, [300]it may be quite reasonably, stigmatizes as "immoral." Such conditions are highly favourable for the exercise of moral influence; they are quite unsuitable for legislative action, which cannot possibly be brought to bear against a large minority, perhaps even majority, of otherwise law-abiding citizens. In the matter of prostitution, for instance, the Vice Commissioners of Chicago state emphatically the need for "constant and persistent repression" leading on to "absolute annihilation of prostitution." They recommend the appointment of a "Morals Commission" to suppress disorderly houses, and to prosecute their keepers, their inmates, and their patrons; they further recommend the establishment of a "Morals Court" of vaguely large scope. Among the other recommendations of the Commissioners—and there are ninety-seven such recommendations—we find the establishment of a municipal farm, to which prostitutes can be "committed on an indeterminate sentence"; a "special morals police squad"; instructions to the police to send home all unattended boys and girls under sixteen at 9 p.m.; no seats in the parks to be in shade; searchlights to be set up at night to enable the police to see what the public are doing, and so on. The scheme, it will be seen, combines the methods of Calvin in Geneva with those of Maria Theresa in Vienna. [215]

[301]The reason why any such high-handed repression of immorality by force is as impracticable in Chicago as elsewhere is revealed in the excellent picture of the conditions furnished by the Vice Commissioners themselves. They estimate that the prostitutes in disorderly houses known to the police—leaving out of account all prostitutes in flats, rooms, hotels and houses of assignation, and also taking no note of clandestine prostitutes—receive 15,180 visits from men daily, or 5,540,700 per annum. They consider further that the men in question may be one-fourth of the adult male population (800,000 in the city itself, leaving the surrounding district out of the reckoning), and they rightly insist that this estimate cannot possibly cover all the facts. Yet it never occurs to the Vice Commissioners that in thus proposing to brand one-third or even only one quarter of the adult male population as criminals, and as such to prosecute them actively, is to propose an absurd impossibility.

It is not by any means only in the United States that an object lesson in the foolishness of attempting to make people moral by force is set up before the world. It has often been set up before, and at the present day it is illustrated in exactly the same way in Germany. Unlike as are the police systems and the national temperaments of Germany and the United States, in this matter social reformers tell exactly the same story. They report that [302]the German laws and ordinances against immorality increase and support the very evil they profess to attack. Thus by making it criminal to shelter, even though not for purposes of gain, unmarried lovers, even when they intend to marry, the respectable girl is forced into the position of the prostitute, and as such she becomes subject to an endless amount of police regulation and police control. Landlords are encouraged to live on her activities, charging very high rates to indemnify themselves for the risks they run by harbouring her. She, in her turn, to meet the exorbitant demands which the law and the police encourage the whole environment to make upon her, is forced to exercise her profession with the greatest activity, and to acquire the maximum of profit. Law and the police have forged the same vicious circle. [216]

The illustrations thus furnished by Germany, Holland, England, and the United States, will probably suffice to show that there really is at the present time a wave of feeling in favour of the notion that it is possible to promote public morals by force of law. It only remains to observe that the recognition of the futility of such attempts by no means necessarily involves a pessimistic conservatism. To point out that prostitution never has been, and never can be, abolished by law, is by no means to affirm that it is an evil which must endure for ever and that no influence can affect it. But we have to realize, in the first place, that prostitution belongs to that sphere of human impulses in which mere external police ordinances count for [303]comparatively little, and that, in the second place, even in the more potent field of true morals, which has nothing to do with moral legislation, prostitution is so subtly and deeply rooted that it can only be affected by influences which bear on all our methods of thought and feeling and all our social custom. It is far from being an isolated manifestation; it is, for instance, closely related to marriage; any reforms in prostitution, therefore, can only follow a reform in our marriage system. But prostitution is also related to economics, and when it is realized how much has to be altogether changed in our whole social system to secure even an approximate abolition of prostitution it becomes doubtful whether many people are willing to pay the price of removing the "social evil" they find it so easy to deplore. They are prepared to appoint Commissions; they have no objection to offer up a prayer; they are willing to pass laws and issue police regulations which are known to be useless. At that point their ardour ends.

If it is impossible to guard the community by statute against the central evil of prostitution, still more hopeless is it to attempt the legal suppression of all the multitudinous minor provocations of the sexual impulse offered by civilization. Let it be assumed that only by such suppression, and not by frankly meeting and fighting temptations, can character be formed, yet it would be absolutely impossible to suppress more than a fraction of the things that would need to be suppressed. "There is almost no feature, article of dress, attitude, act," Dr. Stanley Hall has truly remarked, "or even animal, or [304]perhaps object in nature, that may not have to some morbid soul specialized erogenic and erethic power." If, therefore, we wish to suppress the sexually suggestive and the possibly obscene we are bound to suppress the whole world, beginning with the human race, for if we once enter on that path there is no definite point at which we can logically stop. The truth is, as Mr. Theodore Schroeder has so repeatedly insisted, [217] that "obscenity" is subjective; it cannot reside in an object, but only in the impure mind which is influenced by the object. In this matter Mr. Schroeder is simply the follower, at an interval, of St. Paul. We must work not on the object, but on the impure mind affected by the object. If the impure heart is not suppressed it is useless to suppress the impure object, while if the heart is renewed the whole task is achieved. Certainly there are books, pictures, and other things in life so unclean that they can never be pure even to the purest, but these things by their loathsomeness are harmless to all healthy minds; they can only corrupt minds which are corrupt already. Unfortunately, when ignorant police officials and custom-house officers are entrusted with the task of searching for the obscene, it is not to these things that their attention is exclusively directed. Such persons, it seems, cannot distinguish between these things and the noblest productions of human art and intellect, and the law has proved powerless to set them right; in all civilized countries the list is indeed formidable of the splendid and [305]inspiring productions, from the Bible downwards, which officials or the law courts have been pleased to declare "obscene." So that while the task of moralizing the community by force must absolutely fail of its object, it may at the same time suffice to effect much mischief.

It is one of the ironies of history that the passion for extinguishing immorality by law and administration should have arisen in what used to be called Christendom. For Christianity is precisely the most brilliant proof the world has ever seen of the truth that immorality cannot so be suppressed. From the standpoint of classic Rome Christianity was an aggressive attack on Roman morality from every side. It was not so only in appearance, but in reality, as modern historians fully recognize. [218] Merely as a new religion Christianity would have been received with calm indifference, even with a certain welcome, as other new religions were received. But Christianity denied the supremacy of the State, carried on an anti-military propaganda in the army, openly flouted established social conventions, loosened family life, preached and practised asceticism to an age that was already painfully aware that, above all things, it needed men. The fatal though doubtless inevitable step was taken of attempting to suppress the potent poison of this manifold immorality by force. The triumph of Christianity [306]was largely due to the fine qualities which were brought out by that annealing process, and the splendid prestige which the process itself assured. Yet the method of warfare which it had so brilliantly proved to be worthless was speedily adopted by Christianity itself, and is even yet, at intervals, spasmodically applied.

That these attempts should have such results as we see is not surprising when we remember that even movements, at the outset, mainly inspired by moral energy, rather than by faith in moral legislation, when that energy becomes reckless, violent and intolerant, lead in the end to results altogether opposed to the aims of those who initiated them. It was thus that Luther has permanently fortified the position of the Popes whom he assailed, and that the Reformation produced the Counter-Reformation, a movement as formidable and as enduring as that which it countered. When Luther appeared all that was rigid and inhuman in the Church was slowly dissolving, certainly not without an inevitable sediment of immorality, yet the solution was in the highest degree favourable to the development of the freer and larger conceptions of life, the expansion of science and art and philosophy, which at that moment was pre-eminently necessary for the [307]progress of civilisation, and, indirectly, therefore, for the progress of morals. [219] The violence of the Reformation not only resulted in a new tyranny for its own adherents—calling in turn for fresh reformations by Puritans, Quakers, Deists, and Freethinkers—but it re-established, and even to-day continues to support, that very tyranny of the old Church against which it was a protest.

When we try to regulate the morals of men on the same uniform pattern we have to remember that we are touching the most subtle, intimate, and incalculable springs of action. It is useless to apply the crude methods of "suppression" and "annihilation" to these complex and indestructible forces. When Charles V retired in weariness from the greatest throne in the world to the solitude of the monastery at Yuste, he occupied his leisure for some weeks in trying to regulate two clocks. It proved very difficult. One day, it is recorded, he turned to his assistant and said: "To think that I attempted to force the reason and conscience of thousands of men into one mould, and I cannot make two clocks agree!" Wisdom [308]comes to the rulers of men, sometimes, usually when they have ceased to be rulers. It comes to the moral legislators not otherwise than it comes to the immoral persons they legislate against. "I act first," the French thief said; "then I think."

It seems to some people almost a paradox to assert that immorality should not be encountered by physical force. The same people would willingly admit that it is hopeless to rout a modern army with bows and arrows, even with the support of a fanfare of trumpets. Yet that metaphor, as we have seen, altogether fails to represent the inadequacy of law in the face of immorality. We are concerned with a method of fighting which is not merely inadequate, but, as has been demonstrated many times during the last two thousand years, actually fortifies and even dignifies the foe it professes to attack. But the failure of physical force to suppress the spiritual evil of immorality by no means indicates that a like failure would attend the more rational tactics of opposing a spiritual force by spiritual force. The virility of our morals is not proved by any weak attempt to call in the aid of the secular arm of law or the ecclesiastical arm of theology. If a morality cannot by its own proper virtue hold its opposing immorality in check then there is something wrong with that morality. It runs the risk of encountering a fresh and more vigorous movement of morality. Men begin to think that, if not the whole truth, there is yet a real element of truth in the assertion of Nietzsche: "We believe that severity, violence, slavery, danger in the street and in the heart, secrecy, [309]stoicism, tempter's art and devilry of every kind, everything wicked, tyrannical, predatory and serpentine in man, serves as well for the elevation of the human species as its opposite." [220] To ignore altogether the affirmation of that opposing morality, it may be, would be to breed a race of weaklings, fatally doomed to succumb helplessly to the first breath of temptation.

Although we are passing through a wave of moral legislation, there are yet indications that a sounder movement is coming into action. The demand for the teaching of sexual hygiene which parents, teachers, and physicians in Germany, the United States and elsewhere, are now striving to formulate and to supply will, if it is wisely carried out, effect far more for public morals than all the legislation in the world. Inconsistently enough, some of those who clamour for moral legislation also advocate the teaching of sexual hygiene. But there is no room for compromise or combination here. A training in sexual hygiene has no meaning if it is not a training, for men and women alike, in personal and social responsibility, [310]in the right to know and to discriminate, and in so doing to attain self-conquest. A generation thus trained to self-respect and to respect for others has no use for a web of official regulations to protect its feeble and cloistered virtues from possible visions of evil, and an army of police to conduct it homewards at 9 p.m. Nor, on the other hand, can any reliable sense of social responsibility ever be developed in such an unwholesome atmosphere of petty moral officialdom. The two methods of moralization are radically antagonistic. There can be no doubt which of them we ought to pursue if we really desire to breed a firmly-fibred, clean-minded, and self-reliant race of manly men and womanly women.

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This book is part of the public domain. Havelock Ellis (2007). The Task of Social Hygiene. Urbana, Illinois: Project Gutenberg. Retrieved October 2022 https://www.gutenberg.org/cache/epub/22090/pg22090-images.html

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