[189] Many flagrant cases in point are set forth from the legal point of view by Theodore Schroeder, "Obscene" Literature and Constitutional Law, New York, 1911, chap. IV.
[190] Chamfort, [OE]uvres 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 Prostitution—Homosexuality—Holland—The Age of Consent—Moral Legislation in England—In the United States—The Raines Law—American Attempts to Suppress Prostitution—Their Futility—German Methods of Regulating Prostitution—The Sound Method of Approaching Immorality—Training in Sexual 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 space 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 passed 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.