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]
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
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
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. 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 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 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 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 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 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
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.