Whenever we witness a sudden impulse of zeal and enthusiasm to rush into a new channel, however admirable the impulse may be, we must be prepared for many risks and perhaps even a certain amount of damage. This is, indeed, especially the case when we are concerned with a new activity in the sphere of s.e.x. The s.e.xual relationships of life are so ancient and so wide, their roots ramify so complexly and run so deep, that any sudden disturbance in this soil, however well-intentioned, is certain to have many results which were not antic.i.p.ated by those responsible for it. Any movement here runs the risk of defeating its own ends, or else, in gaining them, to render impossible other ends which are of not less value.

In this matter of s.e.xual hygiene we are faced at the outset by the fact that the very recognition of any such branch of knowledge as "s.e.xual hygiene" involves not merely a new departure, but the reversal of a policy which has been accepted, almost without question, for centuries.

Among many primitive peoples, indeed, we know that the boy and girl at p.u.b.erty are initiated with solemnity, and even a not unwholesome hardship, into the responsibilities of adult life, including those which have reference to the duties and privileges of s.e.x.[184] But in our own traditions scarcely even a relic of any such custom is preserved. On the contrary, we tacitly maintain a custom, and even a policy, of silent obscurantism. Parents and teachers have considered it a duty to say nothing and have felt justified in telling lies, or "fairy tales," in order to maintain their att.i.tude. The oncoming of p.u.b.erty, with its alarming manifestations, especially in the girl, has often left them unmoved and still silent. They have taken care that our elementary textbooks of anatomy and physiology, even when written by so independent and fearless a pioneer as Huxley, should describe the human body absolutely as though the organs and functions of reproduction had no existence. The instinct was not thus suppressed; all the inevitable stimulations which life furnishes to the youthful s.e.xual impulse have continued in operation.[185] s.e.xual activities were just as liable to break out. They were all the more liable to break out, indeed, because fostered by ignorance, often unconscious of themselves, and not held in check by the restraints which knowledge and teaching might have furnished. This, however, has seemed a matter of no concern to the guardians of youth. They have congratulated themselves if they could pilot the youths, and especially the maidens, under their guardianship into the haven of matrimony not only in apparent chast.i.ty, but in ignorance of nearly everything that marriage signifies and involves, alike for the individual and the coming race.

This policy has been so firmly established that the theory of it has never been clearly argued out. So far as it exists at all, it is a theory that walks on two feet pointing opposite ways: s.e.x things must not be talked about because they are "dirty"; s.e.x things must not be talked about because they are "sacred." We must leave s.e.x things alone, they say, because G.o.d will see to it that they manifest themselves aright and work for good; we must leave s.e.x things alone, they also say, because there is no department in life in which the activity of the Devil is so specially exhibited. The very same person may be guilty of this contradiction, when varying circ.u.mstances render it convenient.

Such a confusion is, indeed, a fate liable to befall all ancient and deeply rooted _tabus_; we see it in the _tabus_ against certain animals as foods (as the Mosaic prohibition of pork); at first the animal was too sacred to eat, but in time people came to think that it is too disgusting to eat. They begin the practice for one reason, they continue it for a totally opposed reason. Reasons are such a superficial part of our lives!

Thus every movement of s.e.xual hygiene necessarily clashes against an established convention which is itself an inharmonious clash of contradictory notions. This is especially the case if s.e.xual hygiene is introduced by way of the school. It is very widely held by many who accept the arguments so ably set forth by Frau Maria Lischnewska, that the school is not only the best way of introducing s.e.xual hygiene, but the only possible way, since through this channel alone is it possible to employ an antidote to the evil influences of the home and the world.[186] Yet to teach children what some of their parents consider as too sacred to be taught, and others as too disgusting, and to begin this teaching at an age when the children, having already imbibed these parental notions, are old enough to be morbidly curious and prurient, is to open the way to a complicated series of social reactions which demand great skill to adjust.

Largely, no doubt, from anxiety to counterbalance these dangers, there has been a tendency to emphasize, or rather to over-emphasize, the moral aspects of s.e.xual hygiene. Rightly considered, indeed, it is not easy to over-value its moral significance. But in the actual teaching of such hygiene it is quite easy, and the error is often found, to make statements and to affirm doctrines--all in the interests of good morals and with the object of exhibiting to the utmost the beneficial tendencies of this teaching--which are dubious at the best and often at variance with actual experience. In such cases we seem to see that the s.e.xual hygienist has indeed broken with the conventional conspiracy of silence in these matters, but he has not broken with the conventional morality which grew out of that ignorant silence. With the best intention in the world he sets forth, dogmatically and without qualification, ancient half-truths which to become truly moral need to be squarely faced with their complementary half-truths. The inevitable danger is that the pupil sooner or later grasps the one-sided exaggeration of this teaching, and the credit of the s.e.xual hygienist is gone. Life is an art, and love, which lies at the heart of life, is an art; they are not science; they cannot be converted into clear-cut formulae and taught as the multiplication table is taught. Example here counts for more than precept, and practice teaches more than either, provided it is carried on in the light of precept and example. The rash and unqualified statements concerning the immense benefits of continence, or the awful results of self-abuse, etc., frequently found in books for young people will occur to every one. Stated with wise moderation they would have been helpful. Pushed to harsh extravagance they are not only useless to aid the young in their practical difficulties, but become mischievous by the injury they inflict on over-sensitive consciences, fearful of falling short of high-strung ideals. This consideration brings us, indeed, to what is perhaps the chief danger in the introduction of any teaching of s.e.xual hygiene: the fact that our teachers are themselves untaught. s.e.xual hygiene in the full sense--in so far as it concerns individual action and not the regulative or legislative action of communities--is the art of imparting such knowledge as is needed at successive stages by the child, the youth and maiden, the young man and woman, in order to enable them to deal rightly, and so far as possible without injury either to themselves or to others, with all those s.e.xual events to which every one is naturally liable. To fulfil his functions adequately the master in the art of teaching s.e.xual hygiene must answer to three requirements: (1) he must have a sufficing knowledge of the facts of s.e.xual psychology, s.e.xual physiology, and s.e.xual pathology, knowledge which, in many important respects, hardly existed at all until recently, and is only now beginning to become generally accessible; (2) he must have a wise and broad moral outlook, with a sane idealism which refrains from demanding impossibilities, and resolutely thrusts aside not only the vulgar plat.i.tudes of worldliness, but the equally mischievous plat.i.tudes of an outworn and insincere asceticism, for the wise s.e.xual hygienist knows, with Pascal, that "he who tries to be an angel becomes a beast," and is less anxious to make his pupils ineffective angels than effective men and women, content to say with Browning, "I may put forth angels'

pinions, once unmanned, but not before"; (3) in addition to sound knowledge and a wise moral outlook, the s.e.xual hygienist must possess, finally, a genuine sympathy with the young, an insight into their sensitive shyness, a comprehension of their personal difficulties, and the skill to speak to them simply, frankly, and humanly. If we ask ourselves how many of the apostles of s.e.xual hygiene combine these three essential qualities, we shall probably not be able to name many, while we may suspect that some do not even possess one of the three qualifications. If we further consider that the work of s.e.xual hygiene, to be carried out on a really national scale, demands the more or less active co-operation of parents, teachers, and doctors, and that parents, teachers, and doctors are in these matters at present all alike untrained, and usually prejudiced, we shall realize some of the dangers through which s.e.xual hygiene must at first pa.s.s.

It is, I hope, unnecessary for me to say that, in thus pointing out some of the difficulties and the risks which must a.s.sail every attempt to introduce an element of effective s.e.xual hygiene into life, I am far from wishing to argue that it is better to leave things as they are.

That is impossible, not only because we are realizing that our system of incomplete silence is mischievous, but because it is based on a confusion which contains within itself the elements of disruption. We have to remember, however, that the creation of a new tradition cannot be effected in a day. Before we begin to teach s.e.xual hygiene the teachers must themselves be taught.

There are many who have insisted, and not without reason, on the right of the parent to control the education of the child. s.e.xual hygiene introduces us to another right, the right of the child to control the education of the parents. For few parents to-day are fitted to exercise the duty of training and guiding the child in the difficult field of s.e.x without preliminary education, and such education, to be real and effective, must begin at an early age in the parents' life.[187]

The school teacher, again, on whom so many rely for the initial stage in s.e.xual hygiene, is at present often in almost exactly the same stage of ignorance or prejudice in these matters as his or her pupils. The teacher has seldom been trained to impart even the most elementary scientific knowledge of the facts of s.e.x, of reproduction, and of s.e.xual hygiene, and is more often than not without that personal experience of life in its various aspects which is required in order to teach wisely in such a difficult field as that of s.e.x, even if the principle is admitted that the teacher in cla.s.s, equally whether addressing one s.e.x or both s.e.xes, is not called upon to go beyond the scientific, abstract, and objective aspects of s.e.x.

This difficulty of the lack of suitable teachers is not, indeed, insuperable. It would be largely settled, no doubt, if a wise and thorough course of s.e.xual hygiene and puericulture formed part of the training of all school teachers, as, in France, Pinard has proposed for the Normal schools for young women. Dr. W.O. Henry, in a paper read before the Nebraska State Medical a.s.sociation in May, 1911, put forward the proposal: "Let each State have one or more competent physicians whose duty it shall be to teach these things to the children in all the public schools of the State from the time they are eight years of age.

The boys and girls should be given the instruction separately by means of charts, pictures, and stereopticon views, beginning with the lower forms of life, flowers, plants, and then closing with the organs in man.

These lectures and ill.u.s.trations should be given every year to all the boys and girls separately, having those from eight to ten together at one time, and those from ten to twelve, and those from over twelve to sixteen." Dr. Henry was evidently not aware that the principle of a special teacher appointed by Government to give special instruction in matters of s.e.x in all State schools had already been adopted in Canada, in the province of Ontario; the teacher thus appointed goes from school to school and teaches the elements of s.e.xual physiology and anatomy, and the duty of treating s.e.xual matters with reverence, to cla.s.ses of boys and of girls from the age of ten. The course is not compulsory, but any School Board may call upon the special teacher to deliver the lectures.

This appointment has met with so much approval that it is proposed to appoint further teachers on the same lines, women as well as men.

It is not necessary that the school teacher of s.e.x should be a physician. For personal and particular advice on the concrete difficulties of s.e.x, however, as well as for the more special and detailed hygiene of the s.e.xual relationship and the precautions demanded by eugenics, we must call in the physician. Yet none of these things so far enter the curriculum through which the physician pa.s.ses to reach his profession; he is often only a layman in relation to them. Even if we are a.s.sured that these subjects form part of his scientific equipment, that fact by no means guarantees his tact, sympathy, and insight in addressing the young, whether by general lectures or individual interviews, both these being forms of imparting s.e.xual hygiene for which we may properly call upon the physician, especially towards the end of the school or college course, and at the outset of any career in the world.[188]

Undoubtedly we have amongst us many mothers, teachers, and physicians who are admirably equipped to fulfil their respective parts--elementary, secondary, and advanced--in the work of s.e.xual hygiene. But so long as they are few and far apart their influence is negatived, if it is not even rendered harmful.

It must often be useless for a mother to instil into her little boy respect for his own body, reverence for the channel of motherhood through which he entered the world, any sense of the purity of natural functions or the beauty of natural organs, if outside his home the little boy finds that all other little boys and girls regard these things as only an occasion for sn.i.g.g.e.ring. It is idle for the teacher to describe plainly the scientific facts of s.e.x as a marvellous culmination in the natural unfolding of the world if, outside the schoolroom, the pupil finds that, in the newspapers and in the general conversation of adults, this sacred temple is treated as a common sewer, too filthy to be spoken of, and that the books which contain even the most necessary descriptions of it are liable to be condemned as "obscene" in the law courts.[189] It is vain for the physician to explain to young men and women the subtle and terrible nature of venereal poisons, to declare the right and the duty of both partners in marriage to know, authoritatively and beforehand, the state of each other's health, or to warn them that a proper sense of responsibility towards the race must prevent some ill-born persons from marrying, or at all events from procreating, if the young man and woman find, on leaving the physician, that their acquaintances are prepared to accept all these risks, light-heartedly, in the dark, in a heedless dream from which they somehow hope there will be no awful awakening.

The moral to which these observations point is fairly clear. s.e.x penetrates the whole of life. It is not a branch of mathematics, or a period of ancient history, which we can elect to teach, or not to teach, as may seem best to us, which if we teach we may teach as we choose, and if we neglect to teach it will never trouble us. Love and Hunger are the foundations of life, and the impulse of s.e.x is just as fundamental as the impulse of nutrition. It will not remain absent because we refuse to call for its presence, it will not depart because we find its presence inconvenient. At the most it will only change its shape, and mock at us from beneath masks so degraded, and sometimes so exalted, that we are no longer able to recognize it.

"People are always writing about education," said Chamfort more than a century ago, "and their writings have led to some valuable methods. But what is the use, unless side by side with the introduction of such methods, corresponding reforms are not introduced in legislation, in religion, in public opinion? The only object of education is to conform the child's reason to that of the community. But if there is no corresponding reform in the community, by training the child to reason you are merely training him to see the absurdity of opinions and customs consecrated by the seal of sacred authority, public or legislative, and you are inspiring him with contempt of them."[190] We cannot too often meditate on these wise words.

It is useless to attempt to introduce s.e.xual hygiene as a subject apart, and in some respects it may be dangerous. When we touch s.e.x we are touching sensitive fibres which thrill through the whole of our social organism, just as the touch of love thrills through the whole of the bodily organism. Any vital reform here, any true introduction of s.e.xual hygiene to replace our traditional policy of confused silence, affects the whole of life or it affects nothing. It will modify our social conventions, enter our family life, transform our moral outlook, perhaps re-inspire our religion and our philosophy.

That conclusion need by no means render us pessimistic concerning the future of s.e.xual hygiene, nor unduly anxious to cling to the policy of the past. But it may induce us to be content to move slowly, to prepare our movements widely and firmly, and not to expect too much at the outset. By introducing s.e.xual hygiene we are breaking with the tradition of the past which professed to leave the process by which the race is carried on to Nature, to G.o.d, especially to the devil. We are claiming that it is a matter for individual personal responsibility, deliberately exercised in the light of precise knowledge which every young man and woman has a right, or rather a duty, to possess. That conception of personal responsibility thus extended to the sphere of s.e.x in the reproduction of the race may well transform life and alter the course of civilization. It is not merely a reform in the cla.s.s-room, it is a reform in the home, in the church, in the law courts, in the legislature. If s.e.xual hygiene means that, it means something great, though something which can only come slowly, with difficulty, with much searching of hearts. If, on the other hand, s.e.xual hygiene means nothing but the introduction of a new formal catechism, and an occasional goody-goody perfunctory exhortation, it may be introduced at once, quite easily, without hurting anyone's feelings. But, really, it will not be worth worrying about, one way or the other.

FOOTNOTES:

[181] For a full discussion of the movement, see Havelock Ellis, _Studies in the Psychology of s.e.x_, Vol. VI, "s.e.x in Relation to Society," chaps.

II and III.

[182] Basedow (born at Hamburg 1723, died 1790) set forth his views on s.e.xual education--which will seem to many somewhat radical and advanced even to-day--in his great treatise Elementarwerk (1774). His practical educational work is dealt with by Pinloche, _La Reforme de l'Education en Allemagne au Dix-huitieme Siecle_.

[183] The best of these papers have been printed in a volume ent.i.tled _Am Lebensquell_.

[184] The elaborate and admirable initiation of boys among the natives of Torres Straits furnishes a good example of this education, and has been fully described by Dr. A.C. Haddon, _Reports of the Anthropological Expedition to Torres Straits_, Vol. V, chaps. VII and XII.

[185] Moll in his wise and comprehensive work, _The s.e.xual Life of the Child_ (German ed., p. 225), lays it down emphatically that "_we must clearly realize at the outset that the complete exclusion of s.e.xual stimuli in the education of children is impossible_." He adds that the demands made by some "fanatics of hygiene" would be dangerous even if they were practicable. Games and physical exercises induce in many cases a considerable degree of s.e.xual stimulation. But this need not cause us undue alarm, nor must we thereby be persuaded to change our policy of recommending such games and exercises.

[186] See Frau Maria Lischnewska's excellent pamphlet, _Geschlechtliche Belehrung der Kinder_, first published in _Mutterschutz_, 1905, Heft 4 and 5. This is perhaps the ablest statement of the argument in favour of giving the chief place in s.e.xual hygiene to the teacher. Frau Lischnewska recognizes three factors in the movement for freeing the s.e.xual activities from degradation: (1) medical, (2) economic, and (3) rational. But it is the last--in the broadest sense as a comprehensive process of enlightenment--which she regards as the chief. "The views and sentiments of people must be changed," she says. "The civilized man must learn to gaze at this piece of Nature with pure eyes; reverence towards it must early sink into his soul. In the absence of this fundamental renovation, medical and social measures will merely produce refined animals."

[187] "We parents of to-day," as Henriette Furth truly says ("Erotik und Elternpflicht," _Am Lebensquell_, p. 11), "have not yet attained that beautiful naturalness out of which in these matters simplicity and freedom grow. And however willing we may be to learn afresh, most of us have so far lost our inward freedom from prejudice--the standpoint of the pure to whom all things are pure--that we cannot acquire it again.

We parents of to-day have been altogether wrongly brought up. The inoculated feeling of shame still remains even after we have recognized that shame in this connection is false."

[188] The method of imparting a knowledge of s.e.xual hygiene (especially in relation to venereal diseases) at the outset of adult life has most actively been carried out in Germany and the United States. In Germany lectures by doctors to students and others on these matters are frequently given. In the United States information and advice are spread abroad chiefly by the aid of societies. The American Society of Sanitary and Moral Prophylaxis, with which the name of Dr. Morrow is specially connected, was organized in 1905. The Chicago Society of Social Hygiene was established in 1906. Since then many other similar societies have sprung up under medical auspices in various American cities and states.

[189] Many flagrant cases in point are set forth from the legal point of view by Theodore Schroeder, _"Obscene" Literature and Const.i.tutional Law_, New York, 1911, chap. IV.

[190] Chamfort, _OEuvres Choisies_, ed. by Lescure, Vol. I, p. 33.

IX

IMMORALITY AND THE LAW

Social Hygiene and Legal Compulsion--The Binding Force of Custom among Savages--The Dissolving Influence of Civilization--The Distinction between Immorality and Criminality--Adultery as a Crime--The Tests of Criminality--National Differences in laying down the Boundary between Criminal and Immoral Acts--France--Germany--England--The United States--Police Administration--Police Methods in the United States--National Differences in the Regulation of the Trade in Alcohol--Prohibition in the United States--Origin of the American Method of Dealing with Immorality--Russia--Historical Fluctuations in Methods of dealing with Immorality and Prost.i.tution--h.o.m.os.e.xuality--Holland--The Age of Consent--Moral Legislation in England--In the United States--The Raines Law--American Attempts to Suppress Prost.i.tution--Their Futility--German Methods of Regulating Prost.i.tution--The Sound Method of Approaching Immorality--Training in s.e.xual Hygiene--Education in Personal and Social Responsibility.

The modern development of Social Hygiene in matters of Eugenics has already sufficed to show that there are certain people in the community, anxious to take quick cuts to the millennium, who think that Eugenics can be promoted by hasty legislation. That method of attempting to further social progress is not new. It has been practised with signal lack of success for several thousand years. Therefore, if Social Hygiene is really to progress among us on sane and fundamental lines, it is necessary for us to realize clearly the mistakes of the past. Again and again the blind haste of over-zealous reformers has led not to progress, but to retrogression. The excellent intentions of such social reformers have been defeated, not so much by the evils they have sought to overcome, as by their own excesses of ignorant zeal. As our knowledge of history and of psychology increases, we learn that, in dealing with human nature, what seems the longest way round is sometimes the shortest way home.

Among savages, and no doubt in primitive societies generally, the social reaction against injurious or even unusual acts on the part of individuals is regulated by the binding force of custom. The ruling opinion is the opinion of all, the ruling custom is the duty for all.

The dictates of custom, even of ritual and etiquette, are stringent dictates of morality binding upon all, and the breach of any is equivalent to what we should consider a crime. The savage man is held in the path of duty by a much more united force of public opinion than is the civilized man. But, as Westermarck points out, in a suggestive chapter on customs and laws as the expression of moral ideas, "custom never covers the whole field of morality, and the uncovered s.p.a.ce grows larger in proportion as the moral consciousness develops.... The rule of custom is the rule of duty at early stages of development. Only progress in culture lessens its sway."[191] As a community increases in size and in cultivation, growing more heterogeneous, it adheres rigidly to fundamental conceptions of right and wrong, but in less fundamental matters its moral ideas become both more subjective and more various. If a man kills another man out of love to that man's wife, all civilized society is of opinion that the homicide is a "crime" to be severely punished; but if the man should make love to the wife without killing the husband, then, although in some savage societies the act would still have been a "crime," in a civilized society it would usually be regarded as more properly a case for civil action, not for criminal action; while should it come to be known that the wife had from the first been in love with the man, and was married by compulsion to a husband who had brutally ill-used her, then a very considerable section of the civilized community would actually transfer their sympathies to the offending couple and look upon the husband as the real offender.

This is why the vestigial relics of the ancient ecclesiastical view of adultery as a "crime" are no longer supported by public opinion;[192] they are no longer enforced, or else the penalty is reduced to ridiculous dimensions (as in France, where a fine of a few francs may be imposed), and there is a general inclination to abolish them altogether. Penalties for adultery are not nowadays enacted afresh, except in the United States, where medieval regulations are enabled to survive through the strength of the Puritan tradition. Thus in the State of New York a law was pa.s.sed in 1907 rendering any person guilty of adultery punishable by six months' imprisonment, or a heavy fine, or both. The law was largely due to agitation by the National Christian League for the Promotion of Purity; it was supposed the law would act to prevent adultery. Less than three months after the Act became law, lawyers reached the conclusion that it was a dead letter. During the two years after its enactment, notwithstanding the large number of divorces, only three persons were sent to prison, for a few days, under this Act, and only four fined a small sum. The Committee of Fourteen state that it is "of practically no effect," and add: "The preventive values of this statute cannot be determined, but, judging from the prosecutions, it has proved an ineffective weapon against immorality, and has practically no effect upon commercialized vice."[193] When such laws remain on the Statute Book as relics of practically medieval days they deserve a certain respect, even if it is impossible to enforce them; to re-enact them in modern times is a gratuitous method of bringing law into contempt.

It is clear that all such cases affecting morals are not only altered by circ.u.mstances, and by consideration of the psychic state of the individual, but that in regard to them different sections of the community hold widely different views. The sanctions of the criminal law to be firm and unshakeable must be capable of literal interpretation and of unfailing execution, and in that interpretation and execution be accepted as just by the whole community. But as soon as law enters the sphere of morals this becomes impossible; law loses all its certainty and all the reverence that rightly belongs to it. It no longer voices the conscience of the whole community; it tends to be merely an expression of the feelings of a small upper-cla.s.s social circle; the feelings and the habits and the necessities of the ma.s.s of the population are altogether ignored.[194] Nor are such legislative incursions into the sphere of morals any more satisfactory from the point of view of the cla.s.s which is responsible for them. It very soon begins to be felt that, as Hagen puts it, "the formulas of penal law are stiff and clumsy instruments which can only in the rarest instance serve to disentangle the delicate and manifoldly interwoven threads of the human soul, and decide what is just and what unjust. Formulas are adopted for simple, uncomplicated, rough everyday cases. Only in such cases do they achieve the conquest of justice over injustice."

It is true that no sharp line divides criminal acts from merely immoral acts, and the latter tend to be indirectly, even when not directly, anti-social. It would be highly convenient if we could draw a sharp distinction between major anti-social acts, which may properly be described as "crime," and justly be pursued with the full rigour of the law, and minor anti-social acts, which may be left to the varying reaction of the social environments since they cannot properly be visited by the criminal law.[195] Such a distinction exists, but it cannot be made sharply because there are a large number of intermediate anti-social acts which some sections of the community regard as major, while others regard them as minor, or even, in some cases, as not anti-social at all. The only convenient test we can apply is the strength of the social reaction--provided we are dealing with an act which is definitely anti-social, injuring recognized rights, and not merely an unusual or disgusting act.[196] When an anti-social act meets with a reaction of social indignation which is fairly universal and permanent, it may be regarded as a crime coming under the jurisdiction of the law. If opinion varies, if a considerable section of the community revolt against the punishment of the alleged anti-social act, then we are not ent.i.tled to dignify it with the appellation of "crime."

This is not an altogether sure or satisfactory criterion because there are frequently times and places, especially under the stimulation of some particular occurrence evoking an outburst of increased public emotion, when a section of the community succeeds by its noisy vigour in creating the impression that it voices the universal will. But, on the whole, it works out justly. Ethical standards differ in different places at different times. They are, indeed, always changing. Therefore, in regard to all matters which belong to the sphere of what we commonly call morals, there are in every community some who approve of a given act, others who disapprove of it, yet others who regard it with indifference. In such a shifting sphere we cannot legislate with the certainty of carrying the whole community with us, nor can we properly introduce the word "crime," which ought to indicate only an action of so gravely anti-social nature that there can be no possibility of doubt about it.

It is, however, important to understand the marked national differences in the reaction to these slightly or dubiously anti-social acts, for such differences rest on ancient tradition, and are to some extent the expression of the genius of a people, though they are not the absolutely immutable product of racial const.i.tution, and, within limits, they undergo transformation. It thus happens that acts which in some countries are pursued by the law and punished as crime, are in other countries untouched by the law, and left to the social reaction of the community. It becomes, therefore, of some importance to compare national differences in the att.i.tude towards immorality, to find out whether the attempt to repress it directly, by law, is more effective, or less effective, than the method of leaving it to social reaction.

In many respects France and Germany present a remarkable contrast in their respective methods of dealing with immorality. The contrast has only existed since the sweeping legal reforms which followed the Revolution in France. In old France the laws against s.e.xual and religious offences were extremely severe, involving in some cases death at the stake, and even during the eighteenth century this extreme penalty of the law was sometimes carried out. The police were active, their methods of investigation elaborate and thorough, yet the rigour of the law and the energy of the police signally failed to suppress irreligion and immorality in eighteenth-century France. The Revolution, by popularizing the opinions of the more enlightened men of the time, and by giving to the popular voice an authority it had never possessed before, remoulded the antiquated ecclesiastical laws in accordance with the ideas of the average modern man. In 1791 nearly all the ancient laws against immorality, which had proved so ineffectual, were flung away, and when in 1810 Napoleon established the great penal code which bears his name, he was careful to limit to a minimum the moral offences of which the law was empowered to take cognisances, and--acting certainly in accordance with deeply rooted instincts of the French people--he avoided any useless or dangerous interference with private life and the freedom of the individual. The penal code in France remains substantially the same to-day, while the other countries which have constructed their codes on the French model have shown similar tendencies.

In Germany, and more especially in Prussia, which now dominates German opinion, a very different tendency prevails. The German feels nothing of that sensitive jealousy with which the French seek to guard private life and the rights of the individual. He tolerates a police system which, as Fuld has pointed out, is the most military police system in the world, and he makes little complaint of the indiscriminating thoroughness, even harshness, with which it exercises its functions. "The North German," as a German lawyer puts it, "gazes with sacred respect on every State authority, and on every official, especially on executive and police functionaries; he complacently accepts police inquisition into his private life, and the regulation of his behaviour by law and police affects his impulse of freedom in a relatively slight manner. Hence the law-maker's interference with his private life seems to him a customary and not too injurious encroachment on his individuality."[197] It thus comes about that a great many acts, of for the most part unquestioned immoral character--such as incest, the procuring of women for immoral purposes, and acts of a h.o.m.os.e.xual character--which, when adults are alone concerned, the French leave to be dealt with by the social reaction, are in Germany directly dealt with by the law. These things and the like are viewed in France with fully as much detestation as in Germany, but while the German considers that that detestation is itself a reason for inflicting a legal penalty on the detested act, the Frenchman considers that to inflict a punishment upon such acts by law is an inadmissible interference of the State in private affairs, and an unnecessary interference since the social reaction is quite adequate. In Germany, Dr. Wilhelm points out, a man who allows his daughter's _fiance_ to stay overnight in his house with her is liable to be dragged before the police court and sent to prison for procuring immorality;[198]

to a Frenchman this is a shocking and inconceivable insult to private rights.[199] So also with the German legal att.i.tude towards s.e.xual inversion. The German method of dragging private scandals into the glare of day and investigating them at interminable length in the law courts is a perpetual source of astonishment to Frenchmen. They point out that not only does this method defeat its own end by concentrating attention on the abnormal practices it attacks, but it adds dignity to them; a certain small section of the community justifies and upholds these practices, but while in France this section has no reason to come prominently before the public since it has no grievances demanding redress, in Germany the existence of a cause to advocate in the name of justice has produced a serious and imposing body of literature which has no parallel in France.[200] Thus, as Wilhelm points out, we find exactly opposite methods adopted in Germany and France to obtain the same ends: "In Germany, punishment on account of alleged injury to general interests; in France absence of punishment in order to avoid injury to general interests; in Germany the police baton is called for in order to ward off threatened injury, while in France it is feared that the use of the police baton will itself cause the injury."

The question naturally arises: Which method is the more effective?

Wilhelm finds that these differences in national att.i.tude towards immorality have not by any means rendered immorality more prevalent in France than in Germany; on the contrary, though extra-conjugal intercourse is in Germany almost a crime, s.e.xual offences against children are far more prevalent than in France, while family life is at least as stable in France as in Germany, and more intimate. "The freer way of regarding s.e.xual matters and its results in legislation have, as compared to Germany, in no respect led to more immoral conditions, while, on the other hand, it has been the reason why the vigorous agitation which we find in Germany for certain legal reforms in respect to s.e.xuality are quite unknown."

It is forgotten, in Germany and in some other countries, sometimes even in France, that to bring immorality within reach of the arm of the law is not necessarily by any means to make the actual penalty, in the largest sense of the term, more severe. So long as he retains the good opinion of his fellows, imprisonment is no injury to a man; it has happened to some of our most distinguished and respected public men. The bad opinion of his fellows, even when the law is powerless to touch him, is often an irretrievable injury to a man. We do not fortify the social reaction, in most matters, when we attempt to give it a legal sanction; we do not even need to fortify it, for it is sometimes harsher and more severe than the law, overlooking or not knowing all the extenuating circ.u.mstances. In France, as in England, the force of social opinion, independently of the law, is exceedingly and perhaps excessively strong.

In England, however, we see an att.i.tude towards immorality which differs alike from the French att.i.tude and the German att.i.tude, though it has points of contact with both. The distinctive feature of the Englishman's att.i.tude is his spirit of extreme individualism (which distinguishes him from the German) combined with the religious nature of his moral fervour (which distinguishes him from the Frenchman), both being veiled by a shy prudery (which distinguishes him alike from the Frenchman and the German). The Englishman's reverence for the individual's rights goes beyond the Frenchman's, for in France there is a tendency to subordinate the individual to the family, and in England the interests of the individual predominate. But while in France the laws have been re-moulded to the national temperament, this has not been the case to anything like the same extent in England, where in modern times no great revolution has occurred to shake off laws which still by their antiquity, rather than by their reasonableness, retain the reverence of the people. Thus it comes about that, on the legal side the English att.i.tude towards immorality in many respects resembles the German att.i.tude. Yet undoubtedly the most fundamental element in the English att.i.tude is the instinct for personal freedom, and even the religious fervour of the moral impulse has strengthened the individualistic element.[201] We see this clearly in the fact that England has even gone beyond France in rejecting the control of prost.i.tutes. The French are striving to abolish such control, but in England where it was never extensively established it has long been abolished, leaving only a few faint traces behind. It is abhorrent to the English mind that even the most degraded specimens of humanity should be compulsorily deprived of rights over their own persons, even when it is claimed that the deprivation of such rights might be for the benefit of the community. In no country, perhaps, is the prost.i.tute so free to parade the streets in the exercise of her profession as in England, and in no country is public opinion so intolerant of even the suspicion of a mistake by the police in the exercise of that very limited control over prost.i.tutes which they possess. The freedom of the prost.i.tute in England is further guaranteed by the very fervour of English religious feeling; for active interference with prost.i.tutes involves regulation of prost.i.tution, and that implies a national recognition of prost.i.tution which to a very large section of the English people would be altogether repellant. Thus English love of freedom and English love of G.o.d combine to protect the prost.i.tute. It has to be added that this result is by no means, as some have imagined, hostile to morality. It is the opinion of many foreign observers that in this matter London, for all its freedom, compares favourably with many other large cities where prost.i.tution is severely regulated by the police and so far as possible concealed. For the police can never become the agents of any morality of the heart, and all the repression in the world can only touch the surface of life.