Part 14 (1/2)

FOOTNOTES:

[191] Westermarck, _Origin and Development of the Moral Ideas_, Vol. I, p.

160; see also chapter on s.e.xual morality in Havelock Ellis, _Studies in the Psychology of s.e.x_, Vol. VI, ”s.e.x 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 uber sich Selbst_ (_Archiv fur 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 h.o.m.os.e.xuality 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, b.e.s.t.i.a.l, and h.o.m.os.e.xual 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 franzosischen und deustchen Sittlichkeits-Gesetzgebung und Rechtsprechung,”

_s.e.xual-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 Strafwurdig?”

_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 a.s.sertion of the superiority of man.

[200] The same point has lately been ill.u.s.trated in Holland, where a recent modification in the law is held to press harshly on h.o.m.os.e.xual persons. At once a vigorous propaganda on behalf of the h.o.m.os.e.xual 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 att.i.tude towards immorality, we have an ill.u.s.tration 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 a.s.serted by the Committee of Fourteen in their Report on The _Social Evil in New York City_ (1910, p. x.x.xiv) 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 munic.i.p.ally appointed and munic.i.p.ally financed Vice Commission of Chicago is not only an official but a highly moral doc.u.ment, 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 diminis.h.i.+ng 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 Academie des Sciences Morales et Politiques, 30th September, 1911.

[208] During the present century a great wave of immorality and s.e.xual crime has been pa.s.sing over Russia. This is not attributable to the laws, old or new, but is due in part to the Russo-j.a.panese 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 s.e.xuelle 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 Prost.i.tution in Wien_, Bd. I, pp. 152-206.