Child_ (German ed., p. 225), lays it down emphatically that "_we must
clearly realize at the outset that the complete exclusion of sexual
stimuli in the education of children is impossible_." He adds that the
demands made by some "fanatics of hygiene" would be dangerous even if
they were practicable. Games and physical exercises induce in many cases
a considerable degree of sexual stimulation. But this need not cause us
undue alarm, nor must we thereby be persuaded to change our policy of
recommending such games and exercises.
[186] See Frau Maria Lischnewska's excellent pamphlet, _Geschlechtliche
Belehrung der Kinder_, first published in _Mutterschutz_, 1905, Heft 4
and 5. This is perhaps the ablest statement of the argument in favour of
giving the chief place in sexual hygiene to the teacher. Frau
Lischnewska recognizes three factors in the movement for freeing the
sexual activities from degradation: (1) medical, (2) economic, and (3)
rational. But it is the last--in the broadest sense as a comprehensive
process of enlightenment--which she regards as the chief. "The views and
sentiments of people must be changed," she says. "The civilized man must
learn to gaze at this piece of Nature with pure eyes; reverence towards
it must early sink into his soul. In the absence of this fundamental
renovation, medical and social measures will merely produce refined
animals."
[187] "We parents of to-day," as Henriette Fürth truly says ("Erotik und
Elternpflicht," _Am Lebensquell_, p. 11), "have not yet attained that
beautiful naturalness out of which in these matters simplicity and
freedom grow. And however willing we may be to learn afresh, most of us
have so far lost our inward freedom from prejudice--the standpoint of
the pure to whom all things are pure--that we cannot acquire it again.
We parents of to-day have been altogether wrongly brought up. The
inoculated feeling of shame still remains even after we have recognized
that shame in this connection is false."
[188] The method of imparting a knowledge of sexual hygiene (especially in
relation to venereal diseases) at the outset of adult life has most
actively been carried out in Germany and the United States. In Germany
lectures by doctors to students and others on these matters are
frequently given. In the United States information and advice are spread
abroad chiefly by the aid of societies. The American Society of Sanitary
and Moral Prophylaxis, with which the name of Dr. Morrow is specially
connected, was organized in 1905. The Chicago Society of Social Hygiene
was established in 1906. Since then many other similar societies have
sprung up under medical auspices in various American cities and states.
[189] Many flagrant cases in point are set forth from the legal point of
view by Theodore Schroeder, _"Obscene" Literature and Constitutional
Law_, New York, 1911, chap. IV.
[190] Chamfort, _OEuvres Choisies_, ed. by Lescure, Vol. I, p. 33.
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.