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 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 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 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 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 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, 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 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 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 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 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.
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 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.
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, 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 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 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 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 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 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