We must never forget that the law is only a necessary evil, and often a superfluous one.

In conclusion, I may remark that penal law should be combined, like civil law, with administrative measures, to protect both the individual and society in s.e.xual matters, at the same time watching over the interests of future generations. But it should only do this as far as the weakness and eroticism of men hinder a similar or better result from being obtained by moral education, combined with rational intellectual instruction.

FOOTNOTES:

[8] Vide DELBRuCK, _Gerichtliche Psychopathologie_ (Job. Ambr. Barth, Leipzig, 1897).--DELBRuCK, _Die Pathologische Luge und der pyschisch abnorme Schwindler_ (Ferdinand Enke, Stuttgart, 1891).--FOREL, _Crime et anomalies mentales const.i.tutionnelles_ (GENeVE, 1902, H.

Kundig,).--KoLLE, _Gerichtlich psychiatrische Gutachten_ (from the clinic of Professor Forel at Zurich), Stuttgart, 1894, Ferdinande Enke.--VON LISZT, Schutz der Gesellschaft gegen Gemeingefahrliche (_Monatsschrift fur Kriminalpsychologie und Strafrechtsreform_).--FOREL, Die verminderte Zurechnungsfahigkeit (_die Zukunft_, 1899, no 15), etc.

[9] "Die Zwiechungsfahigkeit des normalen Menschen," Munich.

APPENDIX TO CHAPTER XIII

A MEDICO-LEGAL CASE

The following case occurred in 1904 in the Canton of St. Gall, in Switzerland, and confirms my opinion:

Frieda Keller, born in 1879, was the daughter of honest parents. Her mother was mild-mannered and sensible, her father loyal, but harsh and sometimes violent. Frieda was the fifth of eleven brothers and sisters. She was a model scholar. At the age of four years she had meningitis which left her with frequent headaches. In 1896-97 she learnt dressmaking and helped at home in the household work. When she was free, she did embroidery to help her family. Afterwards she obtained a situation in a dressmaker's shop at St. Gall, where she got sixty francs a month.

To increase her income she worked on Sundays as a waitress at the Cafe de la Poste. The proprietor, a married man, began to persecute her with his affections, which she had great difficulty in avoiding. She then entered another shop where she got eighty francs a month. One day, in 1898, when she was then nineteen, the proprietor of the cafe succeeded in seducing her, and on May 27, 1899, she gave birth to a boy at the Maternity of St. Gall. She had confessed her misfortune to her parents, and her mother had pity on her. Her mother had also been seduced and rendered pregnant at the age of fifteen; abandoned by her seducer she committed infanticide, and was sentenced to six years'

imprisonment; as she had always been well-behaved, the tribunal had recognized that she acted "less by moral depravity than by false sentiment of honor." Frieda, who was fond of her mother, knew nothing of this history. The father was very hard toward his daughter and refused her all help and pity. Twelve days after her confinement she took her child to the Foundling Hospital at St. Gall.

Her seducer then promised to maintain the child, but never paid more than eighty francs. After a time he left the town and was seen no more. The circ.u.mstances under which Frieda became pregnant were not fully inquired into and her seducer was ignored. It was not absolutely a case of rape, but of taking a poor, weak and timid girl by surprise.

Frieda Keller felt nothing but disgust for her seducer. Later on the latter would no doubt deny the fact of his paternity; but he had tacitly admitted this by the payment of eighty francs.

Frieda had to pay five francs a week to the Foundling Hospital and also thirty-four francs to her married sister. In 1901 her father died, and in 1903 her mother. Frieda inherited 2,471 francs from her father, but this sum was tied up in her brother's business and he never sent her the interest. It is characteristic of her mentality that she never attempted to exact it.

Then began for this unfortunate young girl a life of struggle and despair. She was possessed of two ideas. On the one hand she could no longer maintain her child, and on the other hand would not admit anything from shame. They would not keep the child in the hospital after Easter, 1904, when it would reach the maximum age of five years.

What was she to do?

Frieda Keller was then evidently in a pathological state of mind, which was upheld by her defender, Doctor Janggen. She wished to keep her secret and provide for the maintenance of the child; but she took no steps in this direction. She did not seek for cheap lodgings, not for a rise of salary, nor even for the money illegally detained by her brother for his own profit. She never spoke to her married sister, nor to any one, of her desperate position. The father of her child had disappeared and she never gave information against him for fear of divulging her secret. Moreover, the law at St. Gall only admitted the charge of paternity against unmarried men! She found no practical way of disposing of her child. After Easter, 1904, when the child was discharged from the hospital, she was haunted by a single idea--to get rid of the child. She struggled for a long time against this obsession, but in vain, and it finally became a resolution.

Although she was fond of her sister's children, she did not love her own. She rarely visited her child and appeared to take no notice of it. This woman who was well-disposed toward every other creature, who was of exemplary conduct and would not hurt a fly, never even spoke of her own child. On April 9th she wrote to the hospital that she would come and fetch the child.

A few days before this she took a long walk in the woods; the next day she wept at home, while looking for some string. Alone with her despair, she had definitely made her terrible resolution. She said afterwards, at the a.s.sizes:

"I could not free myself from the feeling that I must get rid of the child."

She then went to the hospital, after having bought new clothes for the child, and told the authorities that an aunt of hers at Munich would take care of the child. She then took the child to the woods. Having found a lonely spot she sat down for a long time while the child played in the wood. For some time she had not the courage to do the deed, but at last an irresistible force, as she said, urged her to do it. With her hands and shoes she dug a grave, then strangled the child with string, with such force that it was difficult to untie the knot on the dead body afterwards. She knelt for some time by the child till it ceased to give any signs of life, then buried it, and returned home restraining her tears with difficulty.

On the 1st of June she wrote to the hospital that the child had arrived at Munich. On the 7th of June the body was exposed by rain and was discovered by some Italians. On the 14th of June she was arrested.

During the trial she declared that her action had been the result of her inability to maintain the child, and the necessity of keeping her secret. This secret was the shame and dishonor of involuntary maternity and illegitimate birth.

All the witnesses spoke in favor of Frieda Keller and gave evidence that she was well-mannered, intelligent, hard-working, economical, of exemplary conduct and loving her sister's children. She did not deny the premeditation of her crime, and in no way sought to diminish her responsibility.

According to the law of St. Gall, such cases are punishable with death; but Frieda Keller's sentence was commuted to penal servitude for life.

Such are the facts of this case taken from the official report, and from an extract published by M. de Morsier in the _Signal de Geneve_.

We are compelled to exclaim with M. de Morsier that a legislation which, in such a case, condemns to death one who can justly be called a victim, while leaving unpunished the real culprit, is calculated to destroy all belief in justice in a democracy which calls itself Christian. It is a justice of barbarians, a disgrace to the twentieth century. The tribunal and the juries have enforced to the letter an article in the Code, and this is called justice! We may well say: _Fiat just.i.tia, pereat mundus._

Frieda Keller was no doubt in an abnormal condition of mind; she probably suffered from the influence of auto-suggestion which became an obsession. Such cases are not uncommon. This is clearly shown by the absurdity of her manner of acting, which was both useless and pernicious, while she might easily have got out of her difficulty in other ways. If our judges and juries had a little more knowledge of human psychology and a little less of the Code in their heads, they would have had some doubts on the mental integrity of the accused, and would have ordered an expert examination by a mental specialist. But, apart from this point, I put the question--can we expect from a woman, maternal sentiments for a child resulting from s.e.xual surprise bordering on rape?

In the preceding chapter I have demanded the right of artificial abortion to women rendered pregnant by rape or against their will, and I think the case of Frieda Keller supports my contention. I do not intend to justify the a.s.sa.s.sination of a child already five years of age; but I wish to point out that the absence of maternal love is quite natural in such a case. It is precisely the instinctive aversion of Frieda Keller for her child, otherwise inexplicable, which shows most clearly that it was a case of imposed maternity, or s.e.xual satisfaction on the part of the father alone.

The tragic case of this unfortunate woman well ill.u.s.trates the brutality and hypocrisy of our customs regarding the s.e.xual question, and shows what terror, shame, torment and despair may be caused by the point of view of the so-called rules of morality. In the presence of these facts I do not think I can be accused of exaggeration: it is only parchment-hearted jurists and government officials who can remain indifferent in such cases.

Penal servitude for life for the poor victim of such cruelty is a kind of "mercy" which rather resembles bitter irony. The law of St. Gall can do only one thing to repair the evil; that is to change its laws and liberate the victim as soon as possible.

In ordinary infanticide the true a.s.sa.s.sin is not usually the mother who kills her child, but rather the father who abandons the woman he has made pregnant, and disowns the result of his temporary pa.s.sion. In the case of Frieda Keller, maternal heredity, the results of meningitis, stupidity, irreflection, want, shame, fear, a pathological obsession, and finally the unworthy conduct of the father, all combined in making this unfortunate girl a victim rather than a criminal. Her child was not only a source of great anxiety but also an object of instinctive repulsion.

How is it that such a brave and industrious woman can feel repulsion toward her own child? If the judges had asked themselves this question and had replied to it without prejudice, forgetting for the moment their Code and prejudices, they would not have had the courage to condemn the woman to death, nor even to condemn her at all; for their conscience would have clearly shown them the true culprits--masculine brutality, our hypocritical s.e.xual customs, and the unjust laws inspiring terror in a feeble brain.

When every pregnancy and every birth are looked upon by human society with honor and respect, when every mother is protected by law and a.s.sisted in the education of her children, then only will society have the right to judge severely of infanticide.

CHAPTER XIV

MEDICINE AND s.e.xUAL LIFE

=General Remarks.=--Theology teaches belief in G.o.d and a future life; law represents the application of codified laws and customs, old and new; medicine is said to be an art--the art of curing sick people.

At the origin of each of these three branches of human activity we find an acquired idea. Man has been led to the religious idea and to the worship of one or more G.o.ds by his terror of certain unknown and occult powers superior to his own, and by the idea that his faculty of knowledge, his power, and the duration of his life were limited.

The origin of law is in moral conscience, a phylogenetic derivative of the sentiments of sympathy, _i.e._, sentiments of duty and justice, combined with the idea of the necessity for men to live in societies.

As regards medicine, this owes its existence to the fear of disease, pain and death, which is modified by the acquired experience that certain substances may sometimes ease suffering.

Theology, if separated from morality whose domain it has usurped, lives on mysticism, and endeavors to give it a natural and human appearance by adorning it with sonorous phraseology. Law, losing sight of its origin and object of existence, only concerns itself with comments on the text of laws, and in discussing the application of the articles of the Code. Medicine has concerned itself too much with the life of the patient, instead of the improvement of human life in general.

In order to cure a physical malady, to reestablish abnormal or damaged functions as far as this is possible, the physician must be acquainted with the vital manifestations of the body in its normal state. For this reason the art of medicine depends on the accessory sciences, chiefly anatomy and physiology. These accessory sciences have considerably developed in the evolution of medicine, and the art of medicine has become the chief motive power which urges men to research and discovery in the biological sciences, such as histology, embryology, comparative anatomy and physiology, anatomy and physiology of the brain, bacteriology, etc. Pure science now occupies such a position in medical studies that the "healing art" often remains in the background; although it must later on take the chief part, and is regarded by the public as of the greatest importance.

The value of the art of medicine is subject to great variations. It is only of real value when, free from all charlatanism, it rests on a sufficiently scientific basis; for the art of an ignoramus falls into error and employs inappropriate methods; on the other hand, the art of a charlatan has for its object the purse of the patient. It is common to meet with physicians who have a good practical experience of art without possessing scientific knowledge, others who have both practical experience and science but are charlatans, others again who are very scientific but incapable in practice. The ideal is a combination of art, science and disinterested honesty; but it is not very uncommon to meet with a combination of ignorance, incapacity and charlatanism. Lastly, too many doctors, otherwise capable and intelligent, are too much influenced by authority, text-books and prejudices, instead of observing and judging each case for themselves in the true scientific spirit. Many dogmas of medical education rest on hypotheses, theories or statements which have no solid foundation, and do not represent the fruits of a true personal experience of human life. Many doctors only see through other people's gla.s.ses, without reflecting for themselves; the worst of these are those with "systems," h.o.m.oeopaths, the disciples of natural medicine, etc. It is especially in the s.e.xual question that these human weaknesses of medical pract.i.tioners often lead to the most pitiable results.

We must first of all take to heart the fundamental principle of hygiene, which is at the same time that of all honest and sound medicine--_prevention is better than cure._

The modern opinions of medical men on the s.e.xual question are still unfortunately greatly obscured by prejudice, authority, and the indirect influence of the doctrines of religious morality. The same applies to the question of alcohol. However, it is to medicine and its accessory sciences that we owe the knowledge which now renders it possible to judge of the s.e.xual relations of man from the true and healthy point of view of social and moral science.

We cannot describe here all the relations of medicine to s.e.xual life.

Chapters I, II, III, IV and VIII are entirely based on its results and on those of natural science. What we have still to consider relates especially to s.e.xual hygiene, for we have already treated of pathology in Chapter VIII. I shall reserve the general and social part of hygiene for the last chapter of the book, and shall confine myself here to certain special points, and the criticism of current, but erroneous, medical opinions on the s.e.xual question.

=Prost.i.tution. s.e.xual Hygiene. s.e.xual Connection Apart from Marriage.=--All regulation and medical supervision of prost.i.tution should be rejected, not only from the moral point of view, but also from that of hygiene, as a deplorable error, incapable even of fulfilling its avowed object--protection against venereal disease.