Chapter 23

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]