Chapter 24

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.

If it is impossible to guard the community by statute against the central evil of prostitution, still more hopeless is it to attempt the legal suppression of all the multitudinous minor provocations of the sexual impulse offered by civilization. Let it be assumed that only by such suppression, and not by frankly meeting and fighting temptations, can character be formed, yet it would be absolutely impossible to suppress more than a fraction of the things that would need to be suppressed. "There is almost no feature, article of dress, attitude, act," Dr. Stanley Hall has truly remarked, "or even animal, or perhaps object in nature, that may not have to some morbid soul specialized erogenic and erethic power." If, therefore, we wish to suppress the sexually suggestive and the possibly obscene we are bound to suppress the whole world, beginning with the human race, for if we once enter on that path there is no definite point at which we can logically stop. The truth is, as Mr. Theodore Schroeder has so repeatedly insisted,[217] that "obscenity" is subjective; it cannot reside in an object, but only in the impure mind which is influenced by the object. In this matter Mr. Schroeder is simply the follower, at an interval, of St. Paul. We must work not on the object, but on the impure mind affected by the object. If the impure heart is not suppressed it is useless to suppress the impure object, while if the heart is renewed the whole task is achieved. Certainly there are books, pictures, and other things in life so unclean that they can never be pure even to the purest, but these things by their loathsomeness are harmless to all healthy minds; they can only corrupt minds which are corrupt already. Unfortunately, when ignorant police officials and custom-house officers are entrusted with the task of searching for the obscene, it is not to these things that their attention is exclusively directed. Such persons, it seems, cannot distinguish between these things and the noblest productions of human art and intellect, and the law has proved powerless to set them right; in all civilized countries the list is indeed formidable of the splendid and inspiring productions, from the Bible downwards, which officials or the law courts have been pleased to declare "obscene." So that while the task of moralizing the community by force must absolutely fail of its object, it may at the same time suffice to effect much mischief.

It is one of the ironies of history that the passion for extinguishing immorality by law and administration should have arisen in what used to be called Christendom. For Christianity is precisely the most brilliant proof the world has ever seen of the truth that immorality cannot so be suppressed. From the standpoint of classic Rome Christianity was an aggressive attack on Roman morality from every side. It was not so only in appearance, but in reality, as modern historians fully recognize.[218] Merely as a new religion Christianity would have been received with calm indifference, even with a certain welcome, as other new religions were received. But Christianity denied the supremacy of the State, carried on an anti-military propaganda in the army, openly flouted established social conventions, loosened family life, preached and practised asceticism to an age that was already painfully aware that, above all things, it needed men. The fatal though doubtless inevitable step was taken of attempting to suppress the potent poison of this manifold immorality by force. The triumph of Christianity was largely due to the fine qualities which were brought out by that annealing process, and the splendid prestige which the process itself assured. Yet the method of warfare which it had so brilliantly proved to be worthless was speedily adopted by Christianity itself, and is even yet, at intervals, spasmodically applied.

That these attempts should have such results as we see is not surprising when we remember that even movements, at the outset, mainly inspired by moral energy, rather than by faith in moral legislation, when that energy becomes reckless, violent and intolerant, lead in the end to results altogether opposed to the aims of those who initiated them. It was thus that Luther has permanently fortified the position of the Popes whom he assailed, and that the Reformation produced the Counter-Reformation, a movement as formidable and as enduring as that which it countered. When Luther appeared all that was rigid and inhuman in the Church was slowly dissolving, certainly not without an inevitable sediment of immorality, yet the solution was in the highest degree favourable to the development of the freer and larger conceptions of life, the expansion of science and art and philosophy, which at that moment was pre-eminently necessary for the progress of civilisation, and, indirectly, therefore, for the progress of morals.[219] The violence of the Reformation not only resulted in a new tyranny for its own adherents--calling in turn for fresh reformations by Puritans, Quakers, Deists, and Freethinkers--but it re-established, and even to-day continues to support, that very tyranny of the old Church against which it was a protest.

When we try to regulate the morals of men on the same uniform pattern we have to remember that we are touching the most subtle, intimate, and incalculable springs of action. It is useless to apply the crude methods of "suppression" and "annihilation" to these complex and indestructible forces. When Charles V retired in weariness from the greatest throne in the world to the solitude of the monastery at Yuste, he occupied his leisure for some weeks in trying to regulate two clocks. It proved very difficult. One day, it is recorded, he turned to his assistant and said: "To think that I attempted to force the reason and conscience of thousands of men into one mould, and I cannot make two clocks agree!" Wisdom comes to the rulers of men, sometimes, usually when they have ceased to be rulers. It comes to the moral legislators not otherwise than it comes to the immoral persons they legislate against. "I act first," the French thief said; "then I think."

It seems to some people almost a paradox to assert that immorality should not be encountered by physical force. The same people would willingly admit that it is hopeless to rout a modern army with bows and arrows, even with the support of a fanfare of trumpets. Yet that metaphor, as we have seen, altogether fails to represent the inadequacy of law in the face of immorality. We are concerned with a method of fighting which is not merely inadequate, but, as has been demonstrated many times during the last two thousand years, actually fortifies and even dignifies the foe it professes to attack. But the failure of physical force to suppress the spiritual evil of immorality by no means indicates that a like failure would attend the more rational tactics of opposing a spiritual force by spiritual force. The virility of our morals is not proved by any weak attempt to call in the aid of the secular arm of law or the ecclesiastical arm of theology. If a morality cannot by its own proper virtue hold its opposing immorality in check then there is something wrong with that morality. It runs the risk of encountering a fresh and more vigorous movement of morality. Men begin to think that, if not the whole truth, there is yet a real element of truth in the assertion of Nietzsche: "We believe that severity, violence, slavery, danger in the street and in the heart, secrecy, stoicism, tempter's art and devilry of every kind, everything wicked, tyrannical, predatory and serpentine in man, serves as well for the elevation of the human species as its opposite."[220] To ignore altogether the affirmation of that opposing morality, it may be, would be to breed a race of weaklings, fatally doomed to succumb helplessly to the first breath of temptation.

Although we are passing through a wave of moral legislation, there are yet indications that a sounder movement is coming into action. The demand for the teaching of sexual hygiene which parents, teachers, and physicians in Germany, the United States and elsewhere, are now striving to formulate and to supply will, if it is wisely carried out, effect far more for public morals than all the legislation in the world. Inconsistently enough, some of those who clamour for moral legislation also advocate the teaching of sexual hygiene. But there is no room for compromise or combination here. A training in sexual hygiene has no meaning if it is not a training, for men and women alike, in personal and social responsibility, in the right to know and to discriminate, and in so doing to attain self-conquest. A generation thus trained to self-respect and to respect for others has no use for a web of official regulations to protect its feeble and cloistered virtues from possible visions of evil, and an army of police to conduct it homewards at 9 p.m. Nor, on the other hand, can any reliable sense of social responsibility ever be developed in such an unwholesome atmosphere of petty moral officialdom. The two methods of moralization are radically antagonistic. There can be no doubt which of them we ought to pursue if we really desire to breed a firmly-fibred, clean-minded, and self-reliant race of manly men and womanly women.

FOOTNOTES:

[191] Westermarck, _Origin and Development of the Moral Ideas_, Vol. I, p. 160; see also chapter on sexual morality in Havelock Ellis, _Studies in the Psychology of Sex_, Vol. VI, "Sex in Relation to Society," chap. IX.

[192] It must be remembered that in medieval days not only adultery but the smallest infraction of what the Church regarded as morality could be punished in the Archdeacon's court; this continued to be the case in England even after the Reformation. See Archdeacon W.W. Hales' interesting work, _Precedents and Proceedings in Criminal Causes_ (1847), which is, as the author states, "a History of the Moral Police of the Church."

[193] _The Social Evil in New York City_, p. 100.

[194] This has been emphasized in an able and lucid discussion of this question by Dr. Hans Hagen, "Sittliche Werturteile," _Mutterschutz_, Heft I and II, 1906. Such recognition of popular morals, he justly remarks, is needed not only for the sake of the people, but for the sake of law itself.

[195] Grabowsky, in criticizing Hiller's book, _Das Recht über sich Selbst_ (_Archiv für Kriminalanthropologie und Kriminalistik_, Bd. 36, 1809), argues that in some cases immorality injures rights which need legal protection, but he admits it is difficult to decide when this is the case. He does not think that the law should interfere with homosexuality in adults, but he does consider it should interfere with incest, on the ground that in-breeding is not good for the race. But it is the view of most authorities nowadays that in-breeding is only injurious to the race in the case of an unsound stock, when the defect being in both partners of the same kind would probably be intensified by heredity.

[196] The occurrence of, for instance, incestuous, bestial, and homosexual acts--which are generally abhorrent, but not necessarily anti-social--makes it necessary to exercise some caution here.

[197] I quote from a valuable and interesting study by Dr. Eugen Wilhelm, "Die Volkspsychologischen Unterschiede in der französischen und deustchen Sittlichkeits-Gesetzgebung und Rechtsprechung," _Sexual-Probleme_, October, 1911. It may be added that in Switzerland, also, the tyranny of the police is carried to an extreme. Edith Sellers gives some extraordinary examples, _Cornhill_, August, 1910.

[198] The absurdities and injustice of the German law, and its interference with purely private interests in these matters, have often been pointed out, as by Dr. Kurt Hiller ("Ist Kuppelei Strafwürdig?" _Die Neue Generation_, November, 1910). As to what is possible under German law by judicial decision since 1882, Hagen takes the case of a widow who has living with her a daughter, aged twenty-five or thirty, engaged to marry an artisan now living at a distance for the sake of his work; he comes to see her when he can; she is already pregnant; they will marry soon; one evening, with the consent of the widow, who looks on the couple as practically married, he stays over-night, sharing his betrothed's room, the only room available. Result: the old woman becomes liable to four years' penal servitude, a fine of six thousand marks, loss of civil rights, and police supervision.

[199] In another respect the French code carries private rights to an excess by forbidding the unmarried mother to make any claim on the father of her child. In most countries such a prohibition is regarded as unreasonable and unjust. There is even a tendency (as by a recent Dutch law) to compel the father to provide for his illegitimate child not on the scale of the mother's social position but on the scale of his own social position. This is, possibly, an undue assertion of the superiority of man.

[200] The same point has lately been illustrated in Holland, where a recent modification in the law is held to press harshly on homosexual persons. At once a vigorous propaganda on behalf of the homosexual has sprung into existence. We see here the difference between moral enactments and criminal enactments. Supposing that a change in the law had placed, for instance, increased difficulties in the way of burglary. We should not witness any outburst of literary activity on behalf of burglars, because the community, as a whole, is thoroughly convinced that burglary ought to be penalized.

[201] Apart from the attitude towards immorality, we have an illustration of the peculiarly English tendency to unite religious fervour with individualism in Quakerism. In no other European country has any similar movement--that is, a popular movement of individualistic mysticism--ever appeared on the same scale.

[202] E.F. Fuld, Ph.D., _Police Administration_, 1909.

[203] Ex-Police Commissioner Bingham, of New York, estimated (_Hampton's Magazine_, September, 1909) that "fifteen per cent. or from 1500 to 2000 members of the police force are unscrupulous 'grafters' whose hands are always out for easy money." See also Report of the Committee of Fourteen on _The Social Evil in New York City_, p. 34.

[204] Fuld, _op. cit._, pp. 373 _et seq._ This last opinion by no means stands alone. Thus it is asserted by the Committee of Fourteen in their Report on The _Social Evil in New York City_ (1910, p. xxxiv) that "some laws exist to-day because an unintelligent, cowardly public puts unenforceable statutes on the book, being content with registering their hypocrisy."

[205] It is also a blundering policy. Its blind anathema is as likely as not to fall on its own allies. Thus the Report of the municipally appointed and municipally financed Vice Commission of Chicago is not only an official but a highly moral document, advocating increased suppression of immoral literature, and erring, if it errs, on the side of over-severity. It has been suppressed by the United States Post Office!

[206] This system applies only to spirits, not to beer and wine, but it has proved very effective in diminishing drunkenness, as is admitted by those who are opposed to the system. A somewhat similar system exists in England under the name of the Trust system, but its extension appears unfortunately to be much impeded by English laws and customs.

[207] Jacques Bertillon, in a paper read to the Académie des Sciences Morales et Politiques, 30th September, 1911.

[208] During the present century a great wave of immorality and sexual crime has been passing over Russia. This is not attributable to the laws, old or new, but is due in part to the Russo-Japanese War, and in part to the relaxed tension consequent on the collapse of the movement for political reform. (See an article by Professor Asnurof, "La Crise Sexuelle en Russie," _Archives d'Anthropologie Criminelle_, April, 1911.)

[209] It was by this indirect influence that I was induced to write the present chapter. The editor of a prominent German review wrote to me for my opinion regarding a Bill dealing with the prevention of immorality which had been introduced into the English Parliament and had aroused much interest and anxiety in Germany, where it had been discussed in all its details. But I had never so much as heard of the Bill, nor could I find any one else who had heard of it, until I consulted a Member of Parliament who happened to have been instrumental in causing its rejection.

[210] J. Schrank, _Die Prostitution in Wien_, Bd. I, pp. 152-206.

[211] The history of this movement in Germany may be followed in the _Vierteljahrsberichte des Wissenschaftlich-humanitären Komitees_, edited by Dr. Magnus Hirschfeld, a great authority on the matter.

[212] Report on _The Social Evil in New York City_, p. 38; see also Rev Dr. J.P. Peters, "Suppression of the 'Raines Law Hotels,'" _American Academy of Political and Social Science_, November, 1908.

[213] It is probably needless to add that the specific object of the Act--the Puritanic observance of Sunday--was by no means attained. On Sunday, the 8th December, 1907, the police made a desperate attempt to enforce the law; every place of amusement was shut up; lectures, religious concerts, even the social meetings of the Young Men's Christian Association, were rigorously put a stop to. There was, of course, great popular indignation and uproar, and the impromptu performances got up in the streets, while the police looked on sympathetically, are said to have been far more outrageous than any entertainment indoors could possibly have been.

[214] _The Social Evil in Chicago_, p. 112.

[215] The methods of Maria Theresa never had any success; the methods of Calvin at Geneva had, however, a certain superficial success, because the right conditions existed for their exercise. That is to say, that a theocratic basis of society was generally accepted, and that the suppression of immorality was regarded by the great mass of the population, including in most cases, no doubt, even the offenders themselves, as a religious duty. It is, however, interesting to note that, even at Geneva, these "triumphs of morality" have met the usual fate. At the present day, it appears (Edith Sellers, _Cornhill_, August, 1910), there are more disorderly houses in Geneva, in proportion to the population, than in any other town in Europe.

[216] See e.g. P. Hausmeister, "Zur Analyse der Prostitution," _Geschlect und Gesellschaft_, 1907, p. 294.

[217] Theodore Schroeder, _"Obscene" Literature and Constitutional Law_, New York, 1911.

[218] Thus Sir Samuel Dill (_Roman Society_, p. 11) calls attention to the letter of St. Paulinus who, when the Empire was threatened by barbarians, wrote to a Roman soldier that Christianity is incompatible with family life, with citizenship, with patriotism, and that soldiers are doomed to eternal torment. Christians frequently showed no respect for law or its representatives. "Many Christian confessors," says Sir W.M. Ramsay (_The Church in the Roman Empire_, chap. xv), "went to extremes in showing their contempt and hatred for their judges. Their answers to plain questions were evasive and indirect; they lectured Roman dignitaries as if the latter were the criminals and they themselves the judges; and they even used violent reproaches and coarse, insulting gestures." Bouché-Leclercq (_L'Intolérance Religieuse et le Politique_, 1911, especially chap. X) shows how the early Christians insisted on being persecuted. We see much the same attitude to-day among anarchists of the lower class (and also, it may be added, sometimes among suffragettes), who may be regarded as the modern analogues of the early Christians.

[219] It may well be, indeed, that in all ages the actual sum of immorality, broadly considered--in public and in private, in thought and in act--undergoes but slight oscillations. But in the nature of its manifestations and in the nature of the manifestations that accompany it, there may be immense fluctuations. Tarde, the distinguished thinker, referring to the "delicious Catholicism" of the days before Luther, asks: "If that amiable Christian evolution had peacefully continued to our days, should we be still more immoral than we are? It is doubtful, but in all probability we should be enjoying the most æsthetic and the least vexatious religion in the world, in which all our science, all our civilization, would have been free to progress" (Tarde, _La Logique Sociale_, p. 198). As has often been pointed out, it was along the lines indicated by Erasmus, rather than along the lines pursued by Luther, that the progress of civilization lay.

[220] Nietzsche, _Beyond Good and Evil_, chap. II. A century earlier Godwin had written in his _Political Justice_ (Book VII, chap. VIII): "Men are weak at present because they have always been told they are weak and must not be trusted with themselves. Take them out of their shackles, bid them enquire, reason, and judge, and you will soon find them very different beings. Tell them that they have passions, are occasionally hasty, intemperate, and injurious, but that they must be trusted with themselves. Tell them that the mountains of parchment in which they have been hitherto entrenched, are fit only to impose upon ages of superstition and ignorance, that henceforth we will have no dependence but upon their spontaneous justice; that, if their passions be gigantic, they must rise with gigantic energy to subdue them; that if their decrees be iniquitous, the iniquity shall be all their own."

X

THE WAR AGAINST WAR