increased their takings in the Sunday-schools. Naturally enough,
the Prohibitionists, who were, in most cases, none other than the
vice-crusaders themselves, instantly borrowed it, and so it got into
the Prohibition acts of all the dry States. Volstead, as a country
State’s attorney on the Minnesota steppes, employed it diligently
and to vast effect. He put it into the Volstead Act as a matter of
course. There it stands today, a dishonest and disgraceful blemish
upon American law. Its deliberate aim is to take away from the
citizen accused of crime his constitutional right to a jury trial; no
imaginable argument in favor of it can dodge that plain fact. When
it is invoked, as under the Volstead Act, against a man who has been
found guilty of one violation of the act, it not only punishes him
doubly for that violation; it also punishes him in advance for a second
offense that he has admittedly not committed, and deprives him of his
constitutional means of defense in case he is subsequently accused. He
is, in brief, put absolutely at the mercy of the judge--and the judge
is already obviously suspicious of him, and may be a senile sadist or
Prohibitionist demagogue to boot. The constitutional provision that a
man accused of crime may throw himself upon a jury of plain men like
himself, sworn to regard only the evidence actually before them--that
if he is able to convince only one of the twelve that he is innocent,
or not proved guilty beyond a doubt, he shall go free--this fundamental
guarantee of the citizen, this most sacred of all human rights under
Anglo-Saxon jurisprudence, is specifically nullified and made a mock of
in order to satisfy the frenzy of a minority of fanatics!
That contempt of court should be an offense standing outside the
purview of the Fifth and Sixth Amendments--that a judge should have the
power to punish summarily all deliberate floutings of his dignity--this
may be reasonably argued, though there are many sound considerations
against it. But that it should be lawful to convert some other and
wholly unrelated offense into contempt of court by a legal fiction,
and so get around the Fifth and Sixth Amendments by a swindle--this
is surely more than any sensible man would soberly maintain. When it
is maintained, it is only by persons who are trying to put men into
jail by processes that any average jury would revolt against--mill
owners eager to get rid of annoying labor leaders, coal operators
bent upon making slaves of their miners, Prohibitionists lusting for
the punishment of their opponents. The injunction in strike cases has
been a stench for years; it is, indeed, so bad that a large number of
Federal judges refuse absolutely to employ it. It is a worse stench in
Prohibition cases, for here it is becoming a formidable and favorite
weapon, not merely in the hands of property-owners who want to put down
strikes, but in the hands of criminal Prohibition agents who seek to
wring blackmail from their victims. In brief, it has become a dishonest
means of oppression for men who are even more dishonest than it is.
Certainly it is idle to talk of respect for the laws when such devices
have legislative and judicial sanction. No reasonable man, save he be
ignorant of their nature and purpose, can conceivably respect them.
If, on the ground that whatever is in the law should be given full
faith and credit, he maintains that they should not be resisted, then
he maintains that the Bill of Rights is no more than a string of empty
phrases, and that any shyster who invents a way to evade and abrogate
it is a jurist as dignified as John Marshall.
3
Is a judge bound to lend himself to such gross and dishonest attacks
upon the common rights of the citizen? I am no lawyer, but I presume
to doubt it. There were judges in 1918 who did not think themselves
obliged to sacrifice the Bill of Rights to the Espionage Act, and
who resolutely refused to do so, and yet, so far as I know, nothing
happened to them; at least one of them, to my knowledge, has been since
promoted to a circuit. Why should any judge enforce the injunction
clause of the Volstead Act? Its enforcement is surely not an automatic
act; it involves deliberation and decision by the judge; he may refuse
his injunction without offering any explanation to anyone. What would
follow if he arose one day in his high pulpit, and announced simply
that his court was purged of all such oblique and dishonest enactments
henceforth--that he had resolved to refuse to lend himself to the
schemes of blackmailers with badges, or to harass and punish free
citizens in violation of their fundamental constitutional rights and
their plain dignity as human beings, or, in brief, to engage in any
other enterprise as a judge that he would shrink from engaging in as
a good citizen and a man of honor? Would the result be impeachment? I
should like to meet a Congressman insane enough to move the impeachment
of such a judge! Would it be a storm of public indignation?... Or would
it be a vociferous yell of delight?
It seems to me, indeed, that the first judge who rises to such a
rebellion will be the first judge ever to become a popular hero in
the Republic--that he will be elevated to the Supreme Court by a
sort of acclamation, even if it is necessary to get rid of one of
the sitting justices by setting fire to his gown. But even imagining
him so elevated, the remaining eight justices will still function,
and all of us know what they think of the Bill of Rights. Wouldn’t
such a rebel judge succumb to the system of which he was a discreet
particle? Couldn’t the other eight judges nullify and make a mock of
his heroic defiance? Could they, indeed? Then how? If a judge, high or
low, actually called in justice to rescue a citizen from the law, what
precisely could the Supreme Court do about it? I know of no appeal from
the District Attorney in criminal cases, once the accused has been put
in jeopardy; I know only of impeachment for judges who forget the lines
of the solemn farce to which they are sworn. But try to imagine the
impeachment of a judge charged with punching a hole in the Volstead
Act, and letting in some common justice and common decency!
So far, no such rambunctious and unprecedented judge has been heard
of,--none, that is, has objected to the injunction clause in toto
and head on--nor do I specifically predict his advent. He may come,
but probably he won’t. The law is a curse to all of us, but it is a
curse of special virulence to lawyers. It becomes for them a sort of
discreditable vice, a stealthy and degrading superstition. It robs them
of all balance, of all capacity for clear thought, of all imagination.
Judges tend to show this decay of the faculties in an exaggerated form;
they become mere automata, bound by arbitrary rules, precedents, the
accumulated imbecilities of generations of bad logic; to their primary
lack of sense as lawyers they add the bombastic manner of bureaucrats.
It is thus too much to hope for a judge showing any originality or
courage; one Holmes in an era of Hardings and Coolidges is probably
more than a fair allotment. But while the judges of the District Courts
go on driving wild teams of jackasses through the Bill of Rights,
and the rev. seniors of the Supreme Court give their approval to the
business in solemn form, sometimes but not always with Holmes, J., and
Brandeis, J., dissenting--while all this is going on, there are black
clouds rolling up from the hinterland, where the Constitution is
still taught in the schools and even Methodists are bred to reverence
Patrick Henry. The files of Congress already show the way the wind is
blowing--constitutional amendments to drag down and denaturize the
Supreme Court, simple acts to the same end, other acts providing for
the election of Federal judges, yet others even more revolutionary.
I know of no such proposal that has any apparent merit. Even the
best of them, hamstringing the courts, would only augment the power
of a Congress that is ten times worse. But so long as judges pursue
fatuously the evil business of converting every citizen into a subject,
demagogues will come forward with their dubious remedies, and, soon
or late, unless the bench pulls up, some of these demagogues will get
themselves heard.
V. REFLECTIONS ON HUMAN MONOGAMY
1
_The Eternal Farce_
AS every attentive patron of the drama is well aware, it is difficult
for even the most skillful actors to keep Ibsen’s “Hedda Gabler” from
degenerating to farce in the performance. The reason is certainly
not occult. It lies in the plain fact that such transactions as the
dramatist here deals with--a neurotic woman’s effort to be heavily
romantic, her horror when romance is followed by pregnancy, the
manœuvres of a satanic and idiotic lover, the cuckolding of a husband
wearing whiskers--are intrinsically and incurably farcical. _All_ love
affairs, in truth, are farcical--that is, to the spectators. When one
hears that some old friend has succumbed to the blandishments of a
sweet one, however virtuous and beautiful she may be, one does not gasp
and roll one’s eyes; one simply laughs. When one hears, a year or two
later, that they are quarreling, one laughs again. When one hears that
the bride is seeking consolation from the curate of the parish, one
laughs a third time. When one hears that the bridegroom, in revenge,
is sneaking his stenographer to dinner at an Italian restaurant, one
laughs a fourth time. And so on. But when one goes to the theatre, the
dramatist often asks one to wear a solemn frown when he displays the
same puerile and ludicrous phenomena--that is, while he depicts a fat
actress as going crazy when she discovers that her husband, an actor
with a face like the abdomen of a ten-pin, has run off to Asbury Park,
N. J., with another actress who pronounces all French words in the
manner of the Texas Christian University.
The best dramatists, of course, make no such mistake. In Shakespeare
love is always depicted as comedy--sometimes light and charming, as in
“Twelfth Night,” but usually rough and buffoonish, as in “The Taming of
the Shrew.” This comic attitude is plainly visible even in such plays
as “Hamlet” and “Romeo and Juliet.” In its main outlines, I suppose,
“Hamlet” is properly looked upon as a tragedy, but if you believe that
the love passages are intended to be tragic then all I ask is that you
give a sober reading to the colloquies between Hamlet and Ophelia.
They are not only farcical; they are downright obscene; Shakespeare,
through the mouth of Hamlet, derides the whole business with almost
intolerable ribaldry. As for “Romeo and Juliet,” what is it but a
penetrating burlesque upon the love guff that was fashionable in the
poet’s time? True enough, his head buzzed with such loveliness that he
could not write even burlesque without making it beautiful--compare
“Much Ado About Nothing” and “Othello”--but nevertheless it is quite
absurd to say that he was serious when he wrote this tale of calf-love.
Imagine such a man taking seriously the spasms and hallucinations of
a _Backfisch_ of fourteen, the tinpot heroics of a boy of eighteen!
Shakespeare remembered very well the nature of his own amorous fancies
at eighteen. It was the year of his seduction by Ann Hathaway, whose
brothers later made him marry her, much to his damage and dismay. He
wrote the play at forty-five. Tell it to the Marines!
I have a suspicion that even Ibsen, though he seldom permitted himself
overt humor, indulged in some quiet spoofing when he wrote “A Doll’s
House,” “Hedda Gabler,” “The Lady From the Sea” and “Little Eyolf.” The
whole last act of “Hedda Gabler” could be converted into burlesque by
changing ten words; as I have said, it is almost always burlesque as
bad actors play it. In the cases of “Ghosts” and “The Master-Builder”
there can be no doubt whatever. The former is a piece of buffoonery
designed to make fun of the fools who were outraged by “A Doll’s
House”; the latter is a comic piece founded upon personal experience.
At the age of sixty Ibsen amused himself with a flirtation with a girl
of sixteen. Following the custom of her sex, she took his casual winks
and cheek-pinchings quite seriously, and began hinting to the whole
neighborhood that the old boy was hopelessly gone on her, and that
he intended to divorce Fru Ibsen and run off with her to Italy. All
this gave entertainment to Ibsen, who was a sardonic man, and he began
speculating as to what would happen to a man of his age who actually
yielded to the gross provocations of such a wench. The result was “The
Master-Builder.” But think of the plot! He makes the master-builder
climb a church-steeple, and then jump off! Imagine him regarding such
slap-stick farce seriously!
The world has very little sense of humor. It is always wagging its ears
solemnly over elaborate jocosities. For 600 years it has gurgled over
the “Divine Comedy” of Dante, despite the plain fact that the work
is a flaming satire upon the whole Christian hocus-pocus of heaven,
purgatory and hell. To have tackled such nonsense head-on, in Dante’s
time, would have been to flout the hangman; hence the poet clothed his
attack in an irony so delicate that the ecclesiastical police were
baffled. Why is the poem called a comedy? I have read at least a dozen
discussions of the question by modern pedants, all of them labored and
unconvincing. The same problem obviously engaged the scholars of the
poet’s own time. He called the thing simply “comedy”; they added the
adjective “divine” in order to ameliorate what seemed to them to be an
intolerable ribaldry. Well, here is a “comedy” in which human beings
are torn limb from limb, boiled in sulphur, cut up with red-hot knives,
and filled with molten lead! Can one imagine a man capable of such a
poem regarding such fiendish imbecilities seriously? Certainly not.
They appeared just as idiotic to him as they appear to you or me. But
the Federal judiciary of the day made it impossible to say so in plain
language, so he said so behind a smoke-screen of gaudy poetry. How
Dante would have roared if he could have known that six hundred years
later an illiterate President of the United States, a good Baptist with
money in the bank, married happily to a divorcée--would take the whole
thing with utter seriousness, and deliver a nonsensical harangue upon
the lessons in it for American Christians!
The case of Wagner’s “Parsifal” is still more remarkable. Even
Nietzsche was deceived by it. Like the most maudlin German fat woman at
Baireuth, he mistook the composer’s elaborate and outrageous burlesque
of Christianity for a tribute to Christianity, and so denounced him
as a jackass and refused to speak to him thereafter. To this day
“Parsifal” is given with all the trappings of a religious ceremonial,
and pious folks go to hear it who would instantly shut their ears if
the band began playing “Tristan und Isolde.” It has become, in fact,
a sort of “’Way Down East” or “Ben Hur” of music drama--a bait for
luring patrons who are never seen in the opera-house otherwise. But
try to imagine such a thumping atheist as Wagner writing a religious
opera seriously! And if, by any chance, you succeed in imagining it,
then turn to the Char-Freitag music, and play it on your victrola.
Here is the central scene of the piece, the moment of most austere
solemnity--and to it Wagner fits music that is so luscious and so
fleshly--indeed, so downright lascivious and indecent--that even I, who
am almost anæsthetic to such provocations, blush every time I hear it.
The Flower Maidens do not raise my blood-pressure a single ohm; I have
actually snored through the whole second act of “Tristan.” But when
I hear that Char-Freitag music all of my Freudian suppressions begin
groaning and stretching their legs in the dungeons of my unconscious.
And what does Char-Freitag mean? Char-Freitag means Good Friday!
2
_Venus at the Domestic Hearth_
One inclines to the notion that women--and especially homely
women--greatly overestimated the importance of physical beauty in
their eternal conspiracy against the liberty of men. It is a powerful
lure, to be sure, but it is certainly not the only one that fetches
the game, nor even, perhaps, the most effective one. The satisfaction
that a man gets out of conquering--which is to say, out of succumbing
to--a woman of noticeable pulchritude is chiefly the rather banal one
of parading her before other men. He likes to show her off as he likes
to show his expensive automobile or his big door-knob factory. It is
her apparent costliness that is her principal charm. Her beauty sets
up the assumption that she was sought eagerly by other men, some of
them wealthy, and that it thus took a lot of money or a lot of skill to
obtain the monopoly of her.
But very few men are so idiotic that they are blind to the hollowness
of such satisfactions. A husband, after all, spends relatively few
hours of his life parading his wife, or even contemplating her beauty.
What engages him far more often is the unromantic business of living
with her--of listening to her conversation, of trying to fathom and
satisfy her whims, of detecting and counteracting her plots against his
ego, of facing with her the dull hazards and boredoms of everyday life.
In the discharge of this business personal beauty is certainly not
necessarily a help; on the contrary, it may be a downright hindrance,
if only because it makes for the hollowest and least intelligent of
all forms of vanity. Of infinitely more value is a quality that women
too often neglect, to wit, the quality of simple amiability. The most
steadily charming of all human beings, male or female, is the one who
is tolerant, unprovocative, good-humored, kind. A man wants a show only
intermittently, but he wants peace and comfort every day. And to get
them, if he is sagacious, he is quite willing to sacrifice scenery.
3
_The Rat-trap_
Much of the discontent with modern marriage centers in the fact that
the laws which condition it and safeguard it all assume that its
purpose is the founding of a family. This was unquestionably its
purpose when those laws were devised, say three thousand years ago,
but that purpose, at least among the civilized minority, is now almost
forgotten. Very few educated men of today, it seems to me, have any
notion of founding a family in mind when they marry. Their vanity
takes different forms; moreover, they have rejected the old doctrine
that they have any duty in the premises; the _Stammhalter_ has pretty
well disappeared from their visions. Most of them, it is probable,
marry without any intelligible purpose whatever. Women flatter
them, mark them down and lure them to the holy altar: everything
else is afterthought. Many an American man finds himself on the
brink of marriage without ever having given any sober thought even
to so important a matter as the probable charm of his bride-elect as
mistress. This explains many connubial calamities.
As things stand, the only legal relief from uncomfortable marriages
is afforded by divorce. Every other workable device is frowned upon,
and most of them are punished. The chief purpose of legal divorce,
of course, is to protect the children of the marriage, _i. e._,
to safeguard the family. But the scheme is clumsy, expensive and
cruel. To employ it is to cut off a leg in order to cure what may
be, after all, merely a barked shin--worse, what may be no injury
at all. Suppose there _are_ no children? Suppose the marriage is
entered upon with the clear understanding that there _shall_ be no
children? In the latter case it is obviously insane to surround it
with safeguards for the family that will never exist. As well insure
a pile of bricks against fire. What is needed is legal recognition
of such marriages--recognition that will establish decorum and fair
play within their actual limits, but that will not seek to burden them
with conditions that look quite outside their limits. Human inertia
and sentimentality, of course, will be a long while countenancing any
such change. Until quite recently a marriage without children was
utterly impossible, save as an act of God, and so the inevitable, by
a familiar process, was converted into the creditable. This nonsense
survives, despite the disappearance of the excuse for it. It is
still believed, by the great majority of human beings, that there is
something mysteriously laudable about achieving viable offspring. I
have searched the sacred and profane scriptures for many years, but
have yet to find any logical ground for this notion. To have a child is
no more creditable than to have rheumatism--and no more discreditable.
Ethically, it is absolutely meaningless. And practically, it is mainly
a matter of chance.
4
_The Love Chase_
The notion that man is the aggressor in love is frequently supported
by old-fashioned psychologists by pointing to the example of the
lower animals. The lion, it appears, stalks the lioness to her shame
and undoing; the amorous cock pursues the reluctant and virtuous
hen. Granted. But all that this proves, giving the analogy all the
value asked for it, is that man is the aggressor as _lover_, pure and
simple, _i. e._, as seducer. Is he also the aggressor as suitor and
husband? To ask the question is almost to answer it.... Well, it is
precisely his rôle of husband that differentiates man from lion and
cock. And once he is thus differentiated, all his previous likeness
disappears.... In civilized societies, there is a double stalking:
for mistresses and for husbands. The fact that the majority of women
retain their virtue to the altar and that the majority of men, soon or
late, are married--this offers a capital indication of the relative
enthusiasm and pertinacity with which the two varieties of aggression
are carried on.
5
_Women as Realpolitiker_
Women in general are far too intelligent to have any respect for
so-called ideas. One seldom hears of them suffering and dying for
any of the bogus Great Truths that men believe in. When a woman is
on good terms with her husband she is quite willing to accept his
idiotic theorizings on any subject that happens to engage him, whether
theological, economic, epistemological or political. When one hears
of a Republican man who has a Democratic wife, or _vice versa_, it is
always safe to assume that she has her eye on a handsomer, richer or
more docile fellow, and is thinking of calling up a lawyer.
6
_Footnote for Suffragettes_
The double standard of morality will survive in this world so long as a
woman whose husband has been debauched is favored with the sympathetic
tears of other women, and a man whose wife has run away with an actor
is laughed at by other men.
7
_The Helpmate_
The notion that a true and loving (and, let us hope, amiable and
beautiful) wife inspires a man to high endeavor is largely illusory.
Every sane woman knows instinctively, as a matter of fact, that the
highest aspirations of her husband are fundamentally inimical to her,
and that their realization is apt to cost her her possession of him.
What she dreams of is not an infinitely brilliant husband, but an
infinitely “solid” one, which is to say, one bound irretrievably by the
chains of normalcy. It would delight her to see him get to the White
House, for a man in the White House is as relentlessly policed as an
archbishop. But it would give her a great deal of disquiet to see him
develop into a Goethe or a Wagner.