This aspect of the matter has been very clearly set forth by Dr. Fuld, of Columbia University, in his able and thorough book on police administration. [202] He shows that, though the American police system as a system has defects which need to be remedied, it is not true that the individual members of the American police forces are inferior to those of other countries; on the contrary, they are, in some respects, superior; it is not a large proportion which sells the right to break the law. [203] Their most serious defects are due to the impracticable laws and regulations made by inexperienced legislators. These laws and ordinances in many cases cannot possibly be enforced, and the weak police officers accept money from the citizen for not enforcing rules which in any case they could not enforce. "The American police forces," says Fuld, "have been corrupted almost solely by the statutes.... The real blame attaches not to the policeman who accepts a bribe temptingly offered him, nor to the bribe-giver who seeks by giving a bribe to make the best possible business arrangement, but rather to the law, which by giving the police a large and uncontrolled discretion in the enforcement of the law places a premium upon bribe-giving and bribe-taking." This state of things is rendered possible by the fact that the duties of the police are not confined to matters affecting crime and public order—matters which the whole community consider essential, and in regard to which any police negligence is counted a serious charge—but are extended to unessential matters which a considerable section of the community, including many of the police themselves, view with complete indifference. It is impossible to regard seriously a conspiracy to defeat laws which a large proportion of citizens regard as unnecessary or even foolish. It thus unfortunately comes about that the charge brought against the American police that "it sells the right to break the law" has not the same grave significance which it would have in most countries, for the rights purchased in America may in most countries be obtained without purchase. "An act ought to be made criminal," as Fuld rightly lays down, "only when it is socially expedient to punish its criminality.... The American people, or at least the American legislators, do not make this clear distinction between vice and crime. There seems to be a feeling in America that unless a vice is made a crime, the State countenances the vice and becomes a party to its commission. There are unfortunately a large number of men in the community who believe that they have satisfied the demands made upon them to lead a virtuous life by incorporating into some statute the condemnation of a particular vicious act as a crime." [204] This special characteristic of American laws, with its failure to distinguish between vice and crime, is clearly a legacy of the early Puritans. The Puritans carried over to New England independent autonomous laws of morality, and were contemptuous of external law. The sturdy pioneers of the first generation were faithful to that attitude, and were not even guilty of punishing witches. But, when the opportunity came, their descendants could not resist the temptation to erect an external law of morals, and, like the Calvinists of Geneva, they set up an inquisition backed by the secular arm. It was not until the days of Emerson that American Puritanism regained autonomous freedom and moved in the same air as Milton. But in the meantime the mischief had been done. Even to-day an inquisition of the mails has been established in the United States. It is said to be unconstitutional, and one can well believe that that is so, but none the less it flourishes under the protection of what a famous American has called "the never-ending audacity of elected persons." But to allow subordinate officials to masquerade in the Postal Department as familiars of the inquisition, in the supposed interests of public morals, is a dangerous policy. [205] Its deadening influence on national life cannot fail sooner or later to be realized by Americans. To moralize by statute is idle and unsatisfactory enough; but it is worse to attempt to moralize by the arbitrary dicta of minor government officials.
It is interesting to observe the methods which find favour in some parts of the United States for dealing with the trade in alcoholic liquors. Alcohol is, on the one hand, a poison; on the other hand, it is the basis of the national drinks of every civilized country. Every state has felt called upon to regulate its sale to more or less extent, in such a way that (1) in the interests of public health alcohol may not be too easily or too cheaply obtainable, that (2) the restraints on its sale may be a source of revenue to the State, and that (3) at the same time this regulation of the sale may not be a vexatious and useless attempt to interfere unduly with national customs. States have sought to attain these ends in various ways. The sale of alcohol may be made a State monopoly, as in Russia, or, again, it may be carried on under disinterested municipal or other control, as by the Gothenburg system of Sweden or the Samlag system of Norway. [206] In England the easier and more usual plan is adopted of heavily taxing the sale, with, in addition, various minor methods for restraining the sale of alcoholic drinks and attempting to improve the conditions under which they are sold.
In France an ingenious method of influencing the sale of alcohol has lately been adopted, in the interests of public health, which has proved completely successful. The French national drink is light wine, which may be procured in abundance, of excellent and wholesome quality and very cheaply, provided it is not heavily taxed. But of recent years there has been a tendency in France to consume in large quantity the heavy alcoholic spirits, often of a specially deleterious kind. The plan has been adopted of placing a very high duty on distilled beverages and reducing the duty on the light wines, as well as beer, so that a wholesome and genuine wine can be supplied to the consumer at as low a price as beer. As a result the French consumer has shown a preference for the cheap and wholesome wine which is really his national drink, and there is an enormous fall in the consumption of spirits. Whereas formerly the consumption of brandy in French towns amounted to seven or eight litres of absolute alcohol per head, it has now fallen in the large towns to 4.23 litres. [207]
In America, however, there is a tendency to deal with the sale of alcohol totally opposed to that which nearly everywhere prevails in Europe. When in Europe a man abandons the use of alcohol he makes no demand on his fellow men to follow his example, or, if he does, he is usually content to employ moral suasion to gain this end. But in the United States, where there is no single national drink, a large number of people have abandoned the use of alcohol, and have persuaded themselves that its use by other people is a vice, for it is not universally recognized that—"Selfishness is not living as one wishes to live, it is asking others to live as one wishes to live." Moreover, as in the United States the medieval confusion between vice and crime still subsists among a section of the population, being a part of the national tradition, it became easy to regard the drinking of alcohol as a crime and to make it punishable. Hence we have "Prohibition," which has prevailed in various States of the Union and is especially associated with Maine, where it was established in a crude form so long ago as 1846 and (except for a brief interval between 1856 and 1858) has prevailed until to-day. The law has never been effective. It has been made more and more stringent; the wildest excuses of arbitrary administration have been committed; scandals have constantly occurred; officials of iron will and determination have perished in the faith that if only they put enough energy into the task the law might, after all, be at last enforced. It was all in vain. It has always been easy in the cities of Maine for those to obtain alcohol who wished to obtain it. Finally, in 1911, by a direct Referendum, the majority by which the people of Maine are maintaining Prohibition has been brought down to 700 in a total poll of 120,000, while all the large towns have voted for the repeal of Prohibition by enormous majorities. The people of Maine are evidently becoming dimly conscious that it is worse than useless to make laws which no human power can enforce. "The result of the vote," writes Mr. Arthur Sherwell, an English social Reformer, not himself opposed to temperance legislation, "from every point of view, and not least from the point of view of temperance, is eminently unsatisfactory, and it unquestionably creates a position of great difficulty and embarrassment for the authorities. A majority of 700 in a total poll of 120,000 is clearly not a sufficient mandate for a drastic law which previous experience has conclusively shown cannot be enforced successfully in the urban districts of the State." Successful enforcement of prohibition on a State basis would appear to be hopeless. The history of Prohibition in Maine will for ever form an eloquent proof of the mischief which comes when the ancient ecclesiastical failure to distinguish between the sphere of morals and the sphere of law is perpetuated under the conditions of modern life. The attempt to force men to render unto Cæsar the things which are God's must always end thus.
In these matters we witness in America the survival of an ancient tradition. The early Puritans were individualists, it is true, but their individualism took a theocratic form, and, in the name of God, they looked upon crimes and vices equally and indistinguishably as sins. We see exactly the same point of view in the Penitentials of the ninth century, which were ecclesiastical codes dealing, exactly in the same spirit and in the same way, with crime and with vice, recognizing nothing but a certain difference in degree between murder and masturbation. In the ninth century, and even much later, in Calvin's Geneva and Cotton Mather's New England, it was possible to carry into practice this theocratic conception of the unity of vices and crimes and the punishment as sins of both alike, for the community generally accepted that point of view. But that is very far from being the case in the United States of to-day. The result is that in America in this respect we find a condition of things analogous to that which existed in France, before the Revolution remoulded the laws in accordance with the temperament of the nation. Laws and regulations of the medieval kind, for the moral ordering of the smallest details of life, are still enacted in America, but they are regarded with growing contempt by the community and even by the administrators of the laws. It is realized that such minute inquisition into the citizen's private life can only be effectively carried out where the citizen himself recognizes the divine right of the inquisitor. But the theocratic conception of life no longer corresponds to American ideas or American customs; this minute moral legislation rests on a basis which in the course of centuries has become rotten. Thus it has come about that nowhere in the world is there so great an anxiety to place the moral regulation of social affairs in the hands of the police; nowhere are the police more incapable of carrying out such regulation.
When we thus bear in mind the historical aspect of the matter we can understand how it has come about that the individualistic idealist in America has been much more resolute than in England to effect reforms, much more determined that they shall be very thorough and extreme reforms, and, especially, much more eager to embody his moral aspirations in legal statutes. But his tasks are bigger than in England, because of the vast, unstable, heterogeneous and crude population he has to deal with, and because, at the same time, he has no firmly established centralized and reliable police instrument whereby to effect his reforms. The fiery American moral idealist is determined to set out for the Kingdom of Heaven at once, but every steed he mounts proves broken-winded, and speedily drops down by the wayside. Don Quixote sets the lance at rest and digs his spurs into Rosinante's flanks, but he fails to realize that, in our modern world, he will never bear him anywhere near the foe.
If we wish to see a totally different national method of regarding immorality we may turn to Russia. Here also we find idealism at work, but it is not the same kind of idealism, since, far from desiring to express itself by force, its essential basis is an absolute disbelief in force. Russia, like France, has inherited from an ancient ecclesiastical domination an extremely severe code of regulations against immorality and all sexual aberrations, but, unlike France, it has not cast them off in order to mould the laws in accordance with national temperament. The essence of the Russian attitude in these matters is a sympathy with the individual which is stronger than any antipathy aroused by his immoral acts; his act is a misfortune rather than a sin or a crime. We may observe this attitude in the kindly and helpful fashion in which the Russian assists along the streets his fellow-man who has drunk too much vodka, and, on a higher plane, we see the same spirit of forgiving human tenderness in the Russian novelists, most clearly in the greatest and most typically national, in Dostoieffsky and in Tolstoy. The harsh rigidity of the old Russian laws had not the slightest influence, either in changing this national attitude or in diminishing the prevalence, at the very least as great as elsewhere, of sexual laxity or sexual aberration. Nowadays, as Russia attains national self-consciousness, these laws against immorality are being slowly remoulded in accordance with the national temperament, and in some respects—as in its attitude towards homosexuality and the introduction in 1907 of what is practically divorce by mutual consent—they allow a freedom and latitude scarcely equalled in any other country. [208]
Undoubtedly there is, within certain limits, mutual action and reaction in these matters among nations. Thus the influence of France has led to the abolition of the penalty against homosexual practices in many countries, notably Holland, Spain, Portugal, and, more recently, Italy, while even in Germany there is a strong and influential party, among legal as well as medical authorities, in favour of taking the same step. On the other hand, France has in some matters of detail departed from her general principle in these matters, and has, for instance—without doubt in an altogether justifiable manner—taken part in the international movement against what is called the white slave trade. This mutual reaction of nations is well recognized by the more alert and progressive minds in every country, jealous of any undue interference with liberty. When, for instance, a Bill is introduced in the English Parliament for promoting inquisitorial and vexatious interference with matters that are not within the sphere of legislation it is eagerly discussed in Germany before even its existence is known to most people in England, not so much out of interest in English Affairs as from a sensitive dread that English example may affect German legislation. [209]
Not only, indeed, have we to recognize the existence of these clearly marked and profound differences in legislative reaction to immorality. We have also to realize that at different periods there are general movements, to some extent overpassing national bounds, of rise and of fall in this reaction.
A sudden impulse seizes on a community, and spreads to other communities, to attempt to suppress some form of immorality by law. Such attempts, as we know, have always ended in failure or worse than failure, for laws against immorality are either not carried out, or, if they are carried out, it is at once realized that new evils are created worse than the original evils, and the laws speedily fall into abeyance or are repealed. That has been repeatedly seen, and is well illustrated by the history of prostitution, a sexual manifestation which for two thousand years all sorts of persons in authority have sought to suppress off-hand by law or by administrative fiat. From the time when Christianity gained full political power, prostitution has again and again been prohibited, under the severest penalties, but always in vain. The mightiest emperors—Theodosius, Valentinian, Justinian, Karl the Great, St. Louis, Frederick Barbarossa—all had occasion to discover that might was here in vain, and worse than in vain, that they could not always obey their own moral ordinances, still less coerce their subjects into doing so, and that even so far as, on the surface, they were successful they produced results more pernicious than the evils they sought to suppress. The best known and one of the most vigorous of these attempts was that of the Empress Maria Theresa in Vienna; but all the cruelty and injustice of that energetic effort, and all the stringent, ridiculous, and brutal regulations it involved—its prohibition of short dresses, its inspection of billiard-rooms, its handcuffing of waitresses, its whippings and its tortures—proved useless and worse than useless, and were soon quietly dropped. [210] No more fortunate were more recent municipal attempts in England and America (Portsmouth, Pittsburgh, New York, etc.) to suppress prostitution off-hand; for the most part they collapsed even in a few days.