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.