On the other hand, I must emphasize the fact that such measures, the personal consequences of which are so serious, should only be taken in the case of absolutely dangerous, incurable individuals, concerning whose pathological state there can be no doubt. I also believe that these individuals, especially those with s.e.xual abnormalities, would very often consent to the operation, as was the case with my two patients.

It would be a great advance if civil legislation would in such cases accord official recognition to castration or dislocation of the tubes, with the consent of the criminal or patient concerned. At present, our laws and regulations are such that a psychopathological monster cannot even be castrated when he wishes it, because medical men refuse to undertake such an operation without a positive medical indication of the usual kind, and because there is no legal protection; yet, when done in time, castration would often save s.a.d.i.s.ts and other dangerous perverts from a criminal life, and society from their crimes and those of their offspring.

When it is only a question of avoiding the procreation of tainted children, it would be sufficient to instruct reasonable people in the methods of avoiding conception (vide Chapter XIV).

It is important to bear in mind that modern legislation on marriage often flavors the reproduction of criminals, lunatics and invalids, while it hinders the production of healthy children by men who are intelligent, honest and robust. When an abnormal or unhealthy man is married, his wife is obliged to submit to the conception of tainted children. On the other hand, when a strong, healthy and intelligent girl is in a situation, it often happens that everything is done to prevent her marrying, so as not to lose her services; the more conscientious she is and the more attached to her masters, the more often is this likely to occur.

Girls who have illegitimate children often lose their situations and their honor. The consideration of cases of everyday occurrence is sufficient to grasp the difficulty of the question. What we require is more personal liberty for healthy, normal and adaptable individuals, and more restrictions for the abnormal, unhealthy and dangerous. The civil law of the future will have to take these facts into consideration, if it wishes to keep level with scientific progress, and prevent the instinct of the people having recourse to lynch law, or retaliation.

Meanwhile, attempts have been made to get out of the difficulty by prohibiting the marriage of insane persons or by declaring their marriage null when it has already been consummated; or again, by admitting insanity as a cause for divorce. Such measures are good as makeshifts in a period of transition. They a.s.sume that conceptions only occur in marriage, and that marriage necessarily means procreation. But these two suppositions are false, for it is only the pressure of custom and legislation which realizes them in part, especially in Catholic countries.

The civil code, in the present state of society, has at least the advantage of making possible the dissolution of monstrous unions, such as those of the absolutely insane or certain psychopaths of the worst kind. Unfortunately, divorce is as a rule only accorded in cases of well-marked mental disorders, while in reality the most atrocious unions are those which are contracted by crazy persons with only diminished responsibility, in whom the public and the law are unable to recognize or understand the existence of a definite mental anomaly.

These people most often marry at a time when no one has yet recognized their true mental condition, or foreseen the consequences of their marriage. The unfortunate who finds herself (or himself) bound by such a union is then an object of endless martyrdom. The frequency of mental anomalies causes them to play an immense, and too often unrecognized role, in unhappy marriages.

At the request of the mother the tribunal of Bale recently prohibited the marriage of a young man affected with a slight degree of mental weakness. This judgment was upheld by the Swiss tribunal for the following reasons: "Although capable of work, of earning his living, and of performing his military service, an individual may be an unsuitable subject for marriage. In the interests of family life and the future generation, it is the duty of the State to prevent the marriage of the feeble-minded, in order to avoid the perpetuation of a race of degenerates." I quote this from a journal. We can only congratulate tribunals which have the courage to consider the vital interests of the nation in their judgments.

=Right of Succession.=--Although right of succession has no direct bearing on the s.e.xual question, it is indirectly connected with it through its influence on the procreation of children.

At the present day the poor have more children than the well-to-do.

This is because they have nothing to lose, because coitus is one of their few pleasures, because they are ignorant of the means of preventing conception, and because they hope to profit by their children's labor. People who have some property are, on the contrary, afraid of falling into poverty through the procreation of too many children, and those who possess more are afraid of poverty for their offspring. The latter only desire a few heirs, so that after their death they can leave each a fortune suitable to their social position.

In France, especially, well-to-do people often limit their families to two. The parents have the unhappy idea that a certain fortune must be a.s.sured to their children to enable them to live in comfort. They do not understand that the necessity for a man to earn his living by work is the chief condition for a healthy existence.

Again, among very rich people there is often the fear that a large fortune may lose its power when divided, and thus diminish the influence of the family.

It is obvious that great poverty and great wealth const.i.tute two extreme social evils. It is deplorable for a child to grow up with the idea that he will inherit a large fortune, enjoy life without working, and regard poor people more or less as subordinates. But it is still worse for a man to remain all his life an object for exploitation, in spite of the most repugnant and most arduous work, unless his superior faculties and good luck give him the chance of rising. It is also discouraging for a man to be unable by arduous work to obtain anything for himself or his wife and children, and only to work for society, and especially for the interests of capitalists.

Human instinct is not sufficiently social to allow of a.s.siduous and hearty work solely in the interests of the community. The egoistic sentiments and family instincts of man are still much too strong.

If we take all these facts into consideration, the right of succession becomes very important. It has been attempted to deal with the question by progressive taxes on succession to large fortunes: but this is not enough. I have not the presumption to give a positive opinion on these matters which are not in my province, but I venture to suggest the possibility of greatly restricting the right of succession by postponing the right to the enjoyment of their heritage till the children are of an age when they could earn their own living; say, from twenty-five to twenty-six, so as not to interfere with their higher education. In this way a man would not be deprived of the pleasure of working for himself and his family; and every young man and young woman, being obliged to work at some special subject, would know that they could earn their living after twenty-five or twenty-six, without counting on their heritage.

I do not pretend to build a new social system on this idea, for many propositions of the kind have already been made. I only wish to draw attention to one element of the problem, which consists in diminishing the possibility of the exploitation of man by man, without destroying the pleasure for work, at the same time favoring the procreation and education of healthy and capable offspring. This naturally presupposes a new moral and social state, in which family right would be changed and good education organized for all. Even then intelligent men would have the desire to rise above the average and bring up their children with the same object. This is an instinct in mental development which should be carefully cultivated, and not extinguished, by every social organization.

In all social systems it must be recognized that certain branches of culture, such as scientific research and art, involve great expense and bring little or no material reward to the scientist or the artist.

A richer State ought to provide for these important branches of civilization, which always tend to higher culture.

I have already mentioned separation of property and an equable division of the fruits of labor between conjoints as the only just basis in marriage contracts. I repeat here, that true justice can only be established by the recognition of equal legal rights for men and women.

PENAL LAW

Penal law is the right of punishment. It is based on the ideas of _culpability_ and _expiation_, and these are based on the idea of free-will, which is itself founded on a pure illusion, as we have shown above.

This simple reflection is sufficient to show the precarious position of our present penal law. The science of penal law has too long ignored the progress of humanity and of the other sciences. It is affected with incurable marasmus, because its foundations are laid in error. The idea of expiation was naturally developed on the basis of mysticism combined with the right of the stronger, and a.s.sociated with the sentiment of vengeance natural to the low mentality of our animal ancestors. Among the latter the weaker was punished because he was the weaker: "_Vae victis!_" and order was obtained by force. But the visions of human imagination having urged man to create a G.o.d or G.o.ds in his own image, he attributed to the divinity the sentiments of anger experienced by man, and pretended that expiation was required for offenses against this or that majesty or human idea, transformed into an offense to the divine majesty.

This offense to the divinity was therefore only the nebulous expression of a developing social conscience in man, an obscure mixture of sentiments of wounded sympathy, adulation of the strong and great, and desire for vengeance and expiation. Till then man was accustomed to judge other men according to the right of the stronger, more or less mitigated by sentiments of family and friendship. His terror of natural mysteries--the forest, night, thunder, hurricanes, stars, etc., led him to imagine the intervention of occult powers, and later on of higher powers capable of judging good and evil actions, the ideas of good and evil being formerly very different from what they are at present. The functions of advocates or executors of the divine will were always, however, reserved for privileged men, who gave judgment in His name, either as priests, kings, or later on as judges. We may also note by the way that judgment can be given without belief in free arbitration, as is shown by the Mahometan fatalists and the judgments of Haroun-al-Raschid, for example. In fact, fatalism logically excludes the idea of free-will, for if everything is absolutely predetermined, the thoughts, resolutions and acts of man are also predetermined, which excludes all liberty.

=Responsibility.=--I have attempted to show in another work[9] that a rational penal law should in no way concern itself with the question of free arbitration. The fact that we feel free and responsible is not at all sufficient to justify the doctrine of Kant.

The question of knowing whether an absolute predestination (fatalism, regulating the universe in advance in all its details) exists or not, is a question of pure metaphysics, the solution of which is quite beyond human comprehension, and need not occupy us here. We must simply depend on the scientific postulate of determinism, _i.e._, on the law of causality applied to the motives of our actions, a law which is very much like that of the conservation of energy, and which admits of divers possibilities for the future, for it does not a.s.sume a knowledge of the first cause of the universe nor the will of a divinity.

We shall then understand that the complication of our cerebral activities, mnemic and actual, combined with the fact that a great part of them (and consequently of the motives for our actions) remain subconscious, must produce in us the illusion of free-will.

On the other hand, we shall find the measure of what we are to understand by relative liberty, in the plastic faculties of the activity of the human brain, which allow it to adapt itself as adequately as possible to the numerous and diverse complications of existence, and especially to social relations between mankind.

The most adaptable man is the most free, especially in the sense of active and conscious adaptation. There are also men who adapt themselves pa.s.sively and are easily molded. This pa.s.sive plasticity at any rate renders them capable of submitting to everything and only provoking conflict as a last resource. These individuals are no doubt less free, since they obey the impulses of others; nevertheless, their elasticity gives them a certain relative liberty, because they do not feel constraint and easily adapt themselves to laws and other social requirements. But the highest form of liberty, the moral faculty of higher adaptation, is not that of the human fox who exploits others for his own profit, but that of true higher intellects, capable of adapting their activity to the social requirements of humanity. On the contrary, the man who is least free is the one who, dominated by his pa.s.sions and baser appet.i.tes, or by insufficiency of intelligence or will power, is thereby incapable of conducting himself reasonably, gives way to all temptations and impulses, falls into all kinds of snares, cannot keep to any resolution, and is in perpetual conflict with society.

What is the use of the theoretical belief in free-will in this case?

This man feels subjectively as free, or often more free, than one who is more reasonable and more master of himself, and yet he is a slave!

When, dominated by his psychic bonds, he violates the law, he is punished, but he himself resents the punishment as an injustice. The judge who condemns him and imagines he holds the scales of justice in equilibrium, only carries out the principles of an unjust law, a kind of mild retaliation, exacting moderate expiation. Or again, by exercising a right derived from old traditions based on religious ideas, he plays the part of proxy for the Deity and judges in His place. We might even say that a mail is in reality all the more free the better he realizes that he is not so, _i.e._, that his actions depend on the activity of his brain! At any rate he will then be less often deceived and will react in a more plastic manner.

=The True Task of Penal Law; Its Traditional Errors in the s.e.xual Question.=--Penal law has only one thing to do, that is to cut itself free from its roots and transplant itself on a social and scientific soil. There would then be no longer a penal law, but a _law protecting society against dangerous individuals, and a law of administration for persons incapable of conducting themselves_. Its task would be the complement of that of civil law. Henceforth the judge would cease to pa.s.s judgment on his neighbor and his neighbor's motives, acting as a proxy for G.o.d. He would no longer punish, but would content himself with protecting, restraining and ameliorating.

The history of psychiatry and sorcery proves that we are not exaggerating. It is not very long since the insane were regarded, not as persons suffering from disease, but as criminals and sorcerers, and were treated by punishment and exorcism. The ancients, on the contrary, especially certain Greek and Roman physicians (notably _Caelius Aurelia.n.u.s_) had already recognized that insanity was a disease of the brain, and had distinguished its different forms.

Even at the present day, we find among the Catholics and among certain Protestant sects, as among savages, a belief in sorcery, and if this belief got the upper hand, prosecution for sorcery--exorcism and other forms of cruelty--would soon become the fashion.

Before the sixteenth century prosecutions for sorcery were universal, and remained very common for a long time afterwards. It is only since the time of the French Revolution that insanity has been recognized as a mental disease. Even in the nineteenth century a German alienist, Heinroth, punished the insane like criminals. The atrocious prejudice of the people against the insane dates from the time of prosecution for sorcery.

Even now we are the slaves of a prejudice which holds a legal conviction sufficient to dishonor the prisoner and stain his character for the rest of his days. Hans Leuss' book, _Aus dem Zuchthause_ (From the prison), 1904, is very instructive on this point. Condemned to prison himself, the author makes some wise and dispa.s.sionate observations which give food for reflection. I may also quote the words of Doctor Guillaume, who was for a long time superintendent of the penitentiary at Neuchatel, and who is now director of the Swiss federal bureau of statistics at Berne. The question we are dealing with had been treated in a discussion in which I took part, and to which Doctor Guillaume had listened silently. At the conclusion, he said to us: "Gentlemen, in the course of my life I have become acquainted with a large number of convicts, but I have never been able to discover among them more than two cla.s.ses of individuals; the one cla.s.s were diseased, and the others ... ah! the others; the more I study their cases and their personality, I ask myself if I should not have done as they did under the same circ.u.mstances!" It is unnecessary to say that Doctor Guillaume did not mean to establish two clearly marked cla.s.ses, for most criminals represent a mixture of both; but his main idea gives a good idea of the question of penal law.

How s.e.xual questions lead to conflicts with penal law, how penal law judges them, and how it ought to judge them after what we have just said, I can only refer to what I have said concerning civil law. Our present penal law is aware of singular s.e.xual crimes and often punishes them from curious motives.

When a poor imbecile, ridiculed by women and overcome by his s.e.xual appet.i.te, copulates with a cow, the latter is not injured in any way; neither is the owner. Moreover, the question of property does not trouble the judge, for he punishes sodomy even when the culprit owns the animal. How does the law obtain the right to punish an act which does no harm to any one, nor to society, nor even to an animal? It is evidently a vestige of religious mysticism, something like punishment for sinning against the Holy Ghost. The sins of Sodom and Gomorrah, they say, caused the wrath of G.o.d, who destroyed these towns for this reason. According to the legend, sodomy was a vice of the inhabitants; is this why it is punished at the present day? But the masturbation of Onan, according to the Bible, also caused the wrath of G.o.d; why then do not our present laws inst.i.tute punishment for those who practice it?

In many of the Swiss cantons and in Germany, s.e.xual connection between men is prosecuted by law. The German legislators have even recently discussed the question whether punishment should be enforced only when the p.e.n.i.s of one man is introduced into the a.n.u.s of the other (pederasty), or whether indecent contact and mutual onanism are sufficient to justify punishment.

Our penal law is thus concerned with the question whether it should punish or not, according as this or that mucous membrane or part of the skin is used for the satisfaction of a morbid s.e.xual appet.i.te!

These are truly singular points for a legislator to decide, compelled, in spite of his incompetence, to play the part of physiologist, anatomist and psychologist!

If I am correctly informed, the German legislation is inconsistent in punishing s.e.xual intercourse between two men, but not between two women. These examples suffice to show what blind-alleys a penal law leads to, the basis of which is vicious and which is guided by the traditions of mysticism.

Quite recently, in the Swiss journal of penal law, a jurist seriously upheld the necessity for the conception of a crime against religion!

Ideas of this kind would lead us to punish suicide, like the English.

We will now proceed to a.n.a.lyze the facts from the point of view of their true social value.

=Limits of Penal Law in the s.e.xual Domain.=--If we would avoid injustice and ridiculous contradictions, we should keep to the principle that penal justice has only the right to intervene in cases where individuals or society are injured, or run the risk of being injured. It is also necessary to examine, in each case, whether the person who has committed the offense was not irresponsible and affected with mental disease at the time; or whether his responsibility was not diminished, _i.e._, whether he was not seriously abnormal without being quite insane. The conception of responsibility, necessarily relative, should be understood in the sense of relative liberty, which we have defined above.

According to the result of the inquiry (culpability being proved) the judge will have to decide how society can be best protected against the repet.i.tion of such acts, and how the culprit may be most easily improved, provided he is capable of improvement.

If, for example, the culprit is an inebriate, his detention in a home for inebriates will protect society and benefit the individual much better than all the fines and imprisonments at present in force.

If he is an incorrigible recidivist, incapable of resisting his criminal impulses, the law should keep him under observation in a safe place, or deprive him only of certain dangerous liberties. It is not so difficult to decide these questions as the public imagines. The antecedents of the criminal, his previous convictions, and a careful study of his psychology will nearly always lead to a clear diagnosis and prognosis. In this case a mutual understanding between psychiatrists and jurists will produce excellent results. It is needless to say that if it is only a case of transient cerebral obnubilation, such as sunstroke or somnambulism, etc., the culprit should be acquitted.

=Rape, etc.=--Normal coitus may render a penal action legitimate when it is obtained by force or stratagem (rape, abuse of a feeble-minded or hypnotized person, etc.). It is evident that measures of protection against such acts are urgent, and that persons abused in this way should have the right to heavy indemnities. What we require is not so much extenuation of penalty for the culprit as greater protection for his victims.

In cases of rape, when the woman becomes pregnant against her will, I am of opinion that artificial abortion should be allowed by law as an exceptional measure. We cannot expect a woman to have a child imposed upon her by a man's violence, especially when she is unmarried, and oblige her to bring it up, from the simple fact that she conceived it.

It should be the same in cases of abduction of female minors.