During the past ten years one of these waves of enthusiasm for the

moralization of the public by law has been sweeping across Europe and

America. Its energy is scarcely yet exhausted, and it may therefore be

worthwhile to call attention to it. The movement has shown special

activity in Germany, in Holland, in England, in the United States, and

is traceable in a minor degree in many other countries. In Germany the

Lex Heintze in 1900 was an indication of the appearance of this

movement, while various scandals have had the result of attracting an

exaggerated amount of attention to questions of immorality and of

tightening the rigour of the law, though as Germany already holds moral

matters in a very complex web of regulations it can scarcely be said

that the new movement has here found any large field of activity. In

Holland it is different. Holland is one of the traditional lands of

freedom; it was the home of independent intellect, of free religion, of

autonomous morals, when every other country in Europe was closed to

these manifestations of the spirit, and something of the same tradition

has always inspired its habits of thought, even when they have been

largely Puritanic. So that there was here a clear field for the movement

to work in, and it has found expression, of a very thorough character

indeed, in the new so-called "Morals Law" which was passed in 1911 after

several weeks' discussion. Undoubtedly this law contains excellent

features; thus the agents of the "white slave trade," who have hitherto

been especially active in Holland, are now threatened with five years'

imprisonment. Here we are concerned with what may fairly be regarded as

crime and rightly punishable as such. But excellent provisions like

these are lost to sight in a great number of other paragraphs which are

at best useless and ridiculous, and at worst vexatious and mischievous

in their attempts to limit the free play of civilization. Thus we find

that a year's imprisonment, or a heavy fine, threatens any one who

exposes any object or writing which "offends decency," a provision which

enabled a policeman to enter an art-pottery shop in Amsterdam and remove

a piece of porcelain on which he detected an insufficiently clothed

human figure. Yet this paragraph of the law had been passed with

scarcely any opposition. Another provision of this law deals extensively

with the difficult and complicated question of the "age of consent" for

girls, which it raises to the age of twenty-one, making intercourse with

a girl under twenty-one an offence punishable by four years'

imprisonment. It is generally regarded as desirable that chastity should

be preserved until adult age is well established. But as soon as sexual

maturity is attained--which is long before what we conventionally regard

as the adult age, and earlier in girls than in boys--it is impossible to

dismiss the question of personal responsibility. A girl over sixteen,

and still more when she is over twenty, is a developed human being on

the sexual side; she is capable of seducing as well as of being seduced;

she is often more mature than the youth of corresponding age; to

instruct her in sexual hygiene, to train her to responsibility, is the

proper task of morals. But to treat her as an irresponsible child, and

to regard the act of interfering with her chastity when her consent has

been given, as on a level with an assault on an innocent child merely

introduces confusion. It must often be unjust to the male partner in the

act; it is always demoralizing and degrading to the girl whom it aims at

"protecting"; above all, it reduces what ought to be an extremely

serious crime to the level of a merely nominal offence when it punishes

one of two practically mature persons for engaging with full knowledge

and deliberation in an act which, however undesirable, is altogether

according to Nature. There is here a fatal confusion between a crime and

an action which is at the worst morally reprehensible and only properly

combated by moral methods.

These objections are not of a purely abstract or theoretical character.

They are based on the practical outcome of such enactments. Thus in the

State of New York the "age of consent" was in former days thirteen

years. It was advanced to fourteen and afterwards to sixteen. This is

the extreme limit to which it may prudently be raised, and the New York

Society for the Prevention of Cruelty to Children, which had taken the

chief part in obtaining these changes in the law, was content to stop at

this point. But without seeking the approval of this Society, another

body, the White Cross and Social Purity League, took the matter in hand,

and succeeded in passing an amendment to the law which raised the age of

consent to eighteen. What has been the result? The Committee of

Fourteen, who are not witnesses hostile to moral legislation, state that

"since the amendment went into effect making the age of consent eighteen

years there have been few successful prosecutions. The laws are

practically inoperative so far as the age clause is concerned." Juries

naturally require clear evidence that a rape has been committed when the

case concerns a grown-up girl in the full possession of her faculties,

possibly even a clandestine prostitute. Moreover, as rape in the first

degree involves the punishment of imprisonment for twenty years, there

is a disinclination to convict a man unless the case is a very bad one.

One judge, indeed, has asserted that he will not give any man the full

penalty under the present law, so long as he is on the bench. The

natural result of stretching the law to undue limits is to weaken it.

Instead of being, as it should be, an extremely serious crime, rape

loses in a large proportion of cases the opprobrium which rightly

belongs to it. It is, therefore, a matter for regret that in some

English dominions there is a tendency to raise the "age of consent" to

an unduly high limit. In New South Wales the Girls' Protection Act has

placed the age of consent at sixteen, and in the case of offences by

guardians, schoolmasters, or employers at seventeen years,

notwithstanding the vigorous opposition of a distinguished medical

member of the Legislative Council (the Hon. J.M. Creed), who presented

the arguments against so high an age. Not a single prosecution has so

far occurred under this Act.

In England the force of the moral legislation wave has been felt, but it

has been largely broken against the conservative traditions of the

country, which make all legislation, good or bad, very difficult. A

lengthy, elaborate and high-strung Prevention of Immorality Bill was

introduced in the House of Commons by a group of Nonconformists mainly

on the Liberal side. This Bill was very largely on the lines of the

Dutch law already mentioned; it proposed to raise the age of consent to

nineteen; making intercourse with a girl under that age felony,

punishable by five years' penal servitude, and any attempt at such

intercourse by two years' imprisonment. Such a measure would be, it may

be noted, peculiarly illogical and inconsistent in England and Scotland,

in both of which countries (though their laws in these matters are

independent) even a girl of twelve is legally regarded as sufficiently

mature and responsible to take to herself a husband. At one moment the

Bill seemed to have a chance of becoming law, but a group of enlightened

and independent Liberals, realizing that such a measure would introduce

intolerable social conditions, organized resistance and prevented the

acceptance of the Bill.

The chief organization in England at the present time for the promotion

of public morality is the National Council of Public Morals, which is a

very influential body, with many able and distinguished supporters.

Law-enforced morality, however, constitutes but a very small part of the

reforms advocated by this organization, which is far more concerned with

the home, the school, the Church, and the influences which operate in

those spheres. It has lately to a considerable extent joined hands with

the workers in the eugenic movement, advocating sexual hygiene and

racial betterment, thus allying itself with one of the most hopeful

movements of our day. Certainly there may be some amount of zeal not

according to knowledge in the activities of the National Council of

Public Morals, but there is also very much that is genuinely

enlightened, and the very fact that the Council includes representatives

from so many fields of action and so many schools of thought largely

saves it from running into practical excesses. Its influence on the

whole is beneficial, because, although it may not be altogether averse

to moral legislation, it recognizes that the policeman is a very feeble

guide in these matters, and that the fundamental and essential way of

bettering the public morality is by enlightening the private conscience.

In the United States conditions have been very favourable, as we have

seen, for the attempt to achieve social reform by moral legislation, and

nowhere else in the world has it been so clearly demonstrated that such

attempts not only fail to cure the evils they are aimed at, but tend to

further evils far worse than those aimed at. A famous example is

furnished by the so-called "Raines Law" of New York. This Act was passed

in 1896, and was intended to regulate the sale of alcoholic liquor in

all its phases throughout the State. The grounds for bringing it forward

were that the number of drinking saloons was excessive, that there was

no fixed licensing fee, that too much discretionary power was allowed to

the local commissioner; while, above all, the would-be Puritanic

legislators wished so far as possible to suppress the drinking of

alcoholic liquors on Sunday. To achieve these objects the licensing fee

was raised to four times its usual amount previously to this enactment;

heavy penalties, including the forfeiture of a large surety-bond, were

established, and more surely to prevent Sunday drinking only hotels, not

ordinary drinking bars, were allowed, with many stringent restrictions,

to sell drink on that day. In order that there should be no mistake, it

was set forth in the Act that the hotel must be a real hotel with at

least ten properly furnished bedrooms. The legislators clearly thought

that they had done a fine piece of work. "Seldom," wrote the Committee

of Fourteen, who are by no means out of sympathy with the aims of this

legislation, "has a law intended to regulate one evil resulted in so

aggravated a phase of another evil directly traceable to its

provisions."[212]

In the first place, the passing of this law alarmed the saloon keepers;

they realized that it had them in a very tight grip, and they suspected

that it might be strictly enforced. They came to the conclusion,

therefore, that their best policy would be to accept the law and to

conform themselves to its provisions by converting their drinking bars

into real hotels, with ten properly furnished bedrooms, kitchen, and

dining-room. The immediate result was the preparation of ten thousand

bedrooms, for which there was of course no real demand, and by 1905

there were 1407 certificated hotels in Manhattan and the Bronx alone,

about 1150 of these hotels having probably been created by the Raines

Law.

But something had to be done with all these bedrooms, properly furnished

according to law, for it was necessary to meet the heavy expenses

incurred under the new conditions created by the law. The remedy was

fairly obvious. These bedrooms were excellently adapted to serve as

places of assignation and houses of prostitution. Many hotel proprietors

became practically brothel keepers, the women in some cases becoming

boarders in the hotels; and saloons and hotels have entered into a kind

of alliance for their mutual benefit, and are sometimes indeed under the

same management. When a hotel is thus run in the interests of

prostitution it has what may be regarded as a staff of women in the

neighbouring streets. In some districts of New York it is found that

practically all the prostitutes on the street are connected with some

Raines Law hotel. These wise moral legislators of New York thought they

were placing a penalty on Sunday drinking; what they have really done

is to place a premium on prostitution[213].

An attempt of a different kind to strike a blow at once at alcohol and

at prostitution has been made in Chicago, with equally unsatisfactory

results. Drink and prostitution are connected, so intimately connected,

indeed, that no attempt to separate them can ever be more than

superficially successful even with the most minute inquisition by the

police, least of all by police officers, who, in Chicago, we are

officially told, are themselves sometimes found, when in uniform and on

duty, drinking among prostitutes in "saloons." On May 1, 1910, the

Chicago General Superintendent of Police made a rule prohibiting the

sale of liquor in houses of prostitution. On the surface this rule has

in most cases been observed (though only on the surface, as the

field-workers of the Chicago Vice Commission easily discovered), and a

blow was thus dealt to those houses which derive a large profit from the

sale of drinks on account of the high price at which they retail them.

Yet even so far as the rule has been obeyed, and not evaded, has it

effected any good? On this point we may trust the evidence of the Vice

Commissioners of Chicago, a municipal body appointed by the Mayor and

City Council, and not anxious to discredit the actions of their Police

Superintendent. "As to the benefits derived from this order, either to

the inmates or the public, opinions differ," they write. "It is

undoubtedly true that the result of the order has been to scatter the

prostitutes over a wide territory and to transfer the sale of liquor

carried on heretofore in houses to the near-by saloon-keepers, and to

flats and residential sections, but it is an open question whether it

has resulted in the lessening of either of the two evils of prostitution

and drink."[214] That is a mild statement of the results. It may be noted

that there are over seven thousand drinking saloons in Chicago, so that

the transfer is not difficult, while the migration to flats--of which an

enormous number have been taken for purposes of prostitution (five

hundred in one district alone) since this rule came into force--may

indeed enable the prostitute to live a freer and more humanizing life,

but in no faintest degree diminishes the prevalence of prostitution.

From the narrow police standpoint, indeed, the change is a disadvantage,

for it shelters the prostitute from observation, and involves an

entirely new readjustment to new conditions.

It cannot be said that either the State of New York or the city of

Chicago has been in any degree more fortunate in its attempts at moral

legislation against prostitution than against drinking. As we should

expect, the laws of New York regard prostitution and the prostitute with

an eye of extreme severity. Every prostitute in New York, by virtue of

the mere fact that she is a prostitute, is technically termed a

"vagrant." As such she is liable to be committed to the workhouse for a

term not exceeding six months; the owner of houses where she lives may

be heavily fined, as she herself may be for living in them, and the

keeper of a disorderly house may be imprisoned and the disorderly house

suppressed. It is not clear that the large number of prostitutes in New

York have been diminished by so much as a single unit, but from time to

time attempts are made in some district or another by an unusually

energetic official to put the laws into execution, and it is then

possible to study the results. When disorderly houses are suppressed on

a large scale, there are naturally a great number of prostitutes who

have to find homes elsewhere in order to carry on their business. On one

occasion, under the auspices of District-Attorney Jerome, it is stated

by the Committee of Fourteen that eight hundred women were reported to

be turned out into the street in a single night. For many there are the

Raines Law hotels. A great many others take refuge in tenement houses.

Such houses in congested districts are crowded with families, and with

these the prostitute is necessarily brought into close contact.

Consequently the seeds of physical and mental disorder which she may

bear about her are disseminated in a much more fruitful soil than they

were before. Moreover, she is compelled by the laws to exert very great

energy in the pursuit of her profession. As it is an offence to harbour

her she has to pay twice as high a rent as other people would have to

pay for the same rooms. She may have to pay the police to refrain from

molesting her, as well as others to protect her from molestation. She is

surrounded by people whom the law encourages to prey upon her. She is

compelled to exert her energies at highest tension to earn the very

large sums which are necessary, not to gain profits for herself, but to

feed all the sharks who are eager to grab what is given to her. The

blind or perverse zeal of the moral legislators not only intensifies the

evils it aims at curing, but it introduces a whole crop of new evils.

How large these sums are we may estimate by the investigation made by

the Vice Commissioners of Chicago. They conclude after careful inquiry

that the annual profits of prostitution in the city of Chicago alone

amount to between fifteen to sixteen million dollars, and they regard

this as "an ultra-conservative estimate." It is true that not all this

actually passes through the women's hands and it includes the sales of

drinks. If we confine ourselves strictly to the earnings of the girls

themselves it is found to work out at an average for each girl of

thirteen hundred dollars per annum. This is more than four times as much

as the ordinary shop-girl can earn in Chicago by her brains, virtue, and

other good qualities. But it is not too much for the prostitute's needs;

she is compelled to earn so large an income because the active hostility

of society, the law, and the police facilitates the task of all those

persons--and they are many--who desire to prey upon her. Thus society,

the law, and the police gain nothing for morals by their hostility to

the prostitute. On the contrary, they give strength and stability to

the very vice they nominally profess to fight against. This is shown in

the vital matter of the high rents which it is possible to obtain where

prostitution is concerned. These high rents are the direct result of

legal and police enactments against the prostitute. Remove these

enactments and the rents would automatically fall. The enactments

maintain the high rents and so ensure that the mighty protection of

capital is on the side of prostitution; the property brings in an

exorbitant rate of interest on the capital invested, and all the forces

of sound business are concerned in maintaining rents. So gross is the

ignorance of the would-be moral legislators--or, some may think, so

skilful their duplicity--that the methods by which they profess to fight

against immorality are the surest methods for enabling immorality not

merely to exist--which it would in any case--but to flourish. A vigorous

campaign is initiated against immorality. On the surface it is

successful. Morality triumphs. But, it may be, in the end we are

reminded of the saying of M. Desmaisons in one of Remy de Gourmont's

witty and profound _Dialogues des Amateurs_: "Quand la morale triomphe

il se passe des choses très vilaines."

The reason why the "triumphs" of legislative and administrative morality

are really such ignominious failures must now be clear, but may again be

repeated. It is because on matters of morals there is no unanimity of

opinion as there is in regard to crime. There is always a large section

of the community which feels tolerant towards, and even practises, acts

which another section, it may be quite reasonably, stigmatizes as

"immoral." Such conditions are highly favourable for the exercise of

moral influence; they are quite unsuitable for legislative action, which

cannot possibly be brought to bear against a large minority, perhaps

even majority, of otherwise law-abiding citizens. In the matter of

prostitution, for instance, the Vice Commissioners of Chicago state

emphatically the need for "constant and persistent repression" leading

on to "absolute annihilation of prostitution." They recommend the

appointment of a "Morals Commission" to suppress disorderly houses, and

to prosecute their keepers, their inmates, and their patrons; they

further recommend the establishment of a "Morals Court" of vaguely large

scope. Among the other recommendations of the Commissioners--and there

are ninety-seven such recommendations--we find the establishment of a

municipal farm, to which prostitutes can be "committed on an

indeterminate sentence"; a "special morals police squad"; instructions

to the police to send home all unattended boys and girls under sixteen

at 9 p.m.; no seats in the parks to be in shade; searchlights to be set

up at night to enable the police to see what the public are doing, and

so on. The scheme, it will be seen, combines the methods of Calvin in

Geneva with those of Maria Theresa in Vienna.[215]

The reason why any such high-handed repression of immorality by force is

as impracticable in Chicago as elsewhere is revealed in the excellent

picture of the conditions furnished by the Vice Commissioners

themselves. They estimate that the prostitutes in disorderly houses

known to the police--leaving out of account all prostitutes in flats,

rooms, hotels and houses of assignation, and also taking no note of

clandestine prostitutes--receive 15,180 visits from men daily, or

5,540,700 per annum. They consider further that the men in question may

be one-fourth of the adult male population (800,000 in the city itself,

leaving the surrounding district out of the reckoning), and they rightly

insist that this estimate cannot possibly cover all the facts. Yet it

never occurs to the Vice Commissioners that in thus proposing to brand

one-third or even only one quarter of the adult male population as

criminals, and as such to prosecute them actively, is to propose an

absurd impossibility.

It is not by any means only in the United States that an object lesson

in the foolishness of attempting to make people moral by force is set up

before the world. It has often been set up before, and at the present

day it is illustrated in exactly the same way in Germany. Unlike as are

the police systems and the national temperaments of Germany and the

United States, in this matter social reformers tell exactly the same

story. They report that the German laws and ordinances against

immorality increase and support the very evil they profess to attack.

Thus by making it criminal to shelter, even though not for purposes of

gain, unmarried lovers, even when they intend to marry, the respectable

girl is forced into the position of the prostitute, and as such she

becomes subject to an endless amount of police regulation and police

control. Landlords are encouraged to live on her activities, charging

very high rates to indemnify themselves for the risks they run by

harbouring her. She, in her turn, to meet the exorbitant demands which

the law and the police encourage the whole environment to make upon her,

is forced to exercise her profession with the greatest activity, and to

acquire the maximum of profit. Law and the police have forged the same

vicious circle.[216]

The illustrations thus furnished by Germany, Holland, England, and the

United States, will probably suffice to show that there really is at the

present time a wave of feeling in favour of the notion that it is

possible to promote public morals by force of law. It only remains to

observe that the recognition of the futility of such attempts by no

means necessarily involves a pessimistic conservatism. To point out that

prostitution never has been, and never can be, abolished by law, is by

no means to affirm that it is an evil which must endure for ever and

that no influence can affect it. But we have to realize, in the first

place, that prostitution belongs to that sphere of human impulses in

which mere external police ordinances count for comparatively little,

and that, in the second place, even in the more potent field of true

morals, which has nothing to do with moral legislation, prostitution is

so subtly and deeply rooted that it can only be affected by influences

which bear on all our methods of thought and feeling and all our social

custom. It is far from being an isolated manifestation; it is, for

instance, closely related to marriage; any reforms in prostitution,

therefore, can only follow a reform in our marriage system. But

prostitution is also related to economics, and when it is realized how

much has to be altogether changed in our whole social system to secure

even an approximate abolition of prostitution it becomes doubtful

whether many people are willing to pay the price of removing the "social

evil" they find it so easy to deplore. They are prepared to appoint

Commissions; they have no objection to offer up a prayer; they are

willing to pass laws and issue police regulations which are known to be

useless. At that point their ardour ends.

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