The history of the legal attempts to suppress homosexuality shows the same results. It may even be said to show more, for when the laws against homosexuality are relaxed or abolished, homosexuality becomes, not perhaps less prevalent (in so far as it is a congenital anomaly we cannot expect its prevalence to be influenced by law), but certainly less conspicuous and ostentatious. In France, under the Bourbons, the sexual invert was a sacrilegious criminal who could legally be burnt at the stake, but homosexuality flourished openly in the highest circles, and some of the kings were themselves notoriously inverted. Since the Code Napoléon was introduced homosexual acts, per se, have never been an offence, yet instead of flourishing more vigorously, homosexuality has so far receded into the background that some observers regard it as very rare in France. In Germany and England, on the other hand, where the antiquated laws against this perversion still prevail, homosexuality is extremely prominent, and its right to exist is vigorously championed. The law cannot suppress these impulses and passions; it can only sting them into active rebellion. [211]
But although it has invariably been seen that all attempts to make men moral by law are doomed to disappointment, spasmodic attempts to do so are continually being made afresh. No doubt those who make these attempts are but a small minority, people whose good intentions are not accompanied by knowledge either of history or of the world. But though a minority they can often gain a free field for their activities. The reason is plain. No public man likes to take up a position which his enemies may interpret as favourable to vice and probably due to an anxiety to secure legal opportunities for his own enjoyment of vice. This consideration especially applies to professional politicians. A Member of Parliament, who must cultivate an immaculately pure reputation, feels that he is also bound to record by his vote how anxious he is to suppress other people's immorality. Thus the philistine and the hypocrite join hands with the simple-minded idealist. Very few are left to point out that, however desirable it is to prevent immorality, that end can never be attained by law.
During the past ten years one of these waves of enthusiasm for the moralization of the public by law has been sweeping across Europe and America. Its energy is scarcely yet exhausted, and it may therefore be worthwhile to call attention to it. The movement has shown special activity in Germany, in Holland, in England, in the United States, and is traceable in a minor degree in many other countries. In Germany the Lex Heintze in 1900 was an indication of the appearance of this movement, while various scandals have had the result of attracting an exaggerated amount of attention to questions of immorality and of tightening the rigour of the law, though as Germany already holds moral matters in a very complex web of regulations it can scarcely be said that the new movement has here found any large field of activity. In Holland it is different. Holland is one of the traditional lands of freedom; it was the home of independent intellect, of free religion, of autonomous morals, when every other country in Europe was closed to these manifestations of the spirit, and something of the same tradition has always inspired its habits of thought, even when they have been largely Puritanic. So that there was here a clear field for the movement to work in, and it has found expression, of a very thorough character indeed, in the new so-called "Morals Law" which was passed in 1911 after several weeks' discussion. Undoubtedly this law contains excellent features; thus the agents of the "white slave trade," who have hitherto been especially active in Holland, are now threatened with five years' imprisonment. Here we are concerned with what may fairly be regarded as crime and rightly punishable as such. But excellent provisions like these are lost to sight in a great number of other paragraphs which are at best useless and ridiculous, and at worst vexatious and mischievous in their attempts to limit the free play of civilization. Thus we find that a year's imprisonment, or a heavy fine, threatens any one who exposes any object or writing which "offends decency," a provision which enabled a policeman to enter an art-pottery shop in Amsterdam and remove a piece of porcelain on which he detected an insufficiently clothed human figure. Yet this paragraph of the law had been passed with scarcely any opposition. Another provision of this law deals extensively with the difficult and complicated question of the "age of consent" for girls, which it raises to the age of twenty-one, making intercourse with a girl under twenty-one an offence punishable by four years' imprisonment. It is generally regarded as desirable that chastity should be preserved until adult age is well established. But as soon as sexual maturity is attained—which is long before what we conventionally regard as the adult age, and earlier in girls than in boys—it is impossible to dismiss the question of personal responsibility. A girl over sixteen, and still more when she is over twenty, is a developed human being on the sexual side; she is capable of seducing as well as of being seduced; she is often more mature than the youth of corresponding age; to instruct her in sexual hygiene, to train her to responsibility, is the proper task of morals. But to treat her as an irresponsible child, and to regard the act of interfering with her chastity when her consent has been given, as on a level with an assault on an innocent child merely introduces confusion. It must often be unjust to the male partner in the act; it is always demoralizing and degrading to the girl whom it aims at "protecting"; above all, it reduces what ought to be an extremely serious crime to the level of a merely nominal offence when it punishes one of two practically mature persons for engaging with full knowledge and deliberation in an act which, however undesirable, is altogether according to Nature. There is here a fatal confusion between a crime and an action which is at the worst morally reprehensible and only properly combated by moral methods.
These objections are not of a purely abstract or theoretical character. They are based on the practical outcome of such enactments. Thus in the State of New York the "age of consent" was in former days thirteen years. It was advanced to fourteen and afterwards to sixteen. This is the extreme limit to which it may prudently be raised, and the New York Society for the Prevention of Cruelty to Children, which had taken the chief part in obtaining these changes in the law, was content to stop at this point. But without seeking the approval of this Society, another body, the White Cross and Social Purity League, took the matter in hand, and succeeded in passing an amendment to the law which raised the age of consent to eighteen. What has been the result? The Committee of Fourteen, who are not witnesses hostile to moral legislation, state that "since the amendment went into effect making the age of consent eighteen years there have been few successful prosecutions. The laws are practically inoperative so far as the age clause is concerned." Juries naturally require clear evidence that a rape has been committed when the case concerns a grown-up girl in the full possession of her faculties, possibly even a clandestine prostitute. Moreover, as rape in the first degree involves the punishment of imprisonment for twenty years, there is a disinclination to convict a man unless the case is a very bad one. One judge, indeed, has asserted that he will not give any man the full penalty under the present law, so long as he is on the bench. The natural result of stretching the law to undue limits is to weaken it. Instead of being, as it should be, an extremely serious crime, rape loses in a large proportion of cases the opprobrium which rightly belongs to it. It is, therefore, a matter for regret that in some English dominions there is a tendency to raise the "age of consent" to an unduly high limit. In New South Wales the Girls' Protection Act has placed the age of consent at sixteen, and in the case of offences by guardians, schoolmasters, or employers at seventeen years, notwithstanding the vigorous opposition of a distinguished medical member of the Legislative Council (the Hon. J.M. Creed), who presented the arguments against so high an age. Not a single prosecution has so far occurred under this Act.
In England the force of the moral legislation wave has been felt, but it has been largely broken against the conservative traditions of the country, which make all legislation, good or bad, very difficult. A lengthy, elaborate and high-strung Prevention of Immorality Bill was introduced in the House of Commons by a group of Nonconformists mainly on the Liberal side. This Bill was very largely on the lines of the Dutch law already mentioned; it proposed to raise the age of consent to nineteen; making intercourse with a girl under that age felony, punishable by five years' penal servitude, and any attempt at such intercourse by two years' imprisonment. Such a measure would be, it may be noted, peculiarly illogical and inconsistent in England and Scotland, in both of which countries (though their laws in these matters are independent) even a girl of twelve is legally regarded as sufficiently mature and responsible to take to herself a husband. At one moment the Bill seemed to have a chance of becoming law, but a group of enlightened and independent Liberals, realizing that such a measure would introduce intolerable social conditions, organized resistance and prevented the acceptance of the Bill.
The chief organization in England at the present time for the promotion of public morality is the National Council of Public Morals, which is a very influential body, with many able and distinguished supporters. Law-enforced morality, however, constitutes but a very small part of the reforms advocated by this organization, which is far more concerned with the home, the school, the Church, and the influences which operate in those spheres. It has lately to a considerable extent joined hands with the workers in the eugenic movement, advocating sexual hygiene and racial betterment, thus allying itself with one of the most hopeful movements of our day. Certainly there may be some amount of zeal not according to knowledge in the activities of the National Council of Public Morals, but there is also very much that is genuinely enlightened, and the very fact that the Council includes representatives from so many fields of action and so many schools of thought largely saves it from running into practical excesses. Its influence on the whole is beneficial, because, although it may not be altogether averse to moral legislation, it recognizes that the policeman is a very feeble guide in these matters, and that the fundamental and essential way of bettering the public morality is by enlightening the private conscience.
In the United States conditions have been very favourable, as we have seen, for the attempt to achieve social reform by moral legislation, and nowhere else in the world has it been so clearly demonstrated that such attempts not only fail to cure the evils they are aimed at, but tend to further evils far worse than those aimed at. A famous example is furnished by the so-called "Raines Law" of New York. This Act was passed in 1896, and was intended to regulate the sale of alcoholic liquor in all its phases throughout the State. The grounds for bringing it forward were that the number of drinking saloons was excessive, that there was no fixed licensing fee, that too much discretionary power was allowed to the local commissioner; while, above all, the would-be Puritanic legislators wished so far as possible to suppress the drinking of alcoholic liquors on Sunday. To achieve these objects the licensing fee was raised to four times its usual amount previously to this enactment; heavy penalties, including the forfeiture of a large surety-bond, were established, and more surely to prevent Sunday drinking only hotels, not ordinary drinking bars, were allowed, with many stringent restrictions, to sell drink on that day. In order that there should be no mistake, it was set forth in the Act that the hotel must be a real hotel with at least ten properly furnished bedrooms. The legislators clearly thought that they had done a fine piece of work. "Seldom," wrote the Committee of Fourteen, who are by no means out of sympathy with the aims of this legislation, "has a law intended to regulate one evil resulted in so aggravated a phase of another evil directly traceable to its provisions." [212]
In the first place, the passing of this law alarmed the saloon keepers; they realized that it had them in a very tight grip, and they suspected that it might be strictly enforced. They came to the conclusion, therefore, that their best policy would be to accept the law and to conform themselves to its provisions by converting their drinking bars into real hotels, with ten properly furnished bedrooms, kitchen, and dining-room. The immediate result was the preparation of ten thousand bedrooms, for which there was of course no real demand, and by 1905 there were 1407 certificated hotels in Manhattan and the Bronx alone, about 1150 of these hotels having probably been created by the Raines Law.
But something had to be done with all these bedrooms, properly furnished according to law, for it was necessary to meet the heavy expenses incurred under the new conditions created by the law. The remedy was fairly obvious. These bedrooms were excellently adapted to serve as places of assignation and houses of prostitution. Many hotel proprietors became practically brothel keepers, the women in some cases becoming boarders in the hotels; and saloons and hotels have entered into a kind of alliance for their mutual benefit, and are sometimes indeed under the same management. When a hotel is thus run in the interests of prostitution it has what may be regarded as a staff of women in the neighbouring streets. In some districts of New York it is found that practically all the prostitutes on the street are connected with some Raines Law hotel. These wise moral legislators of New York thought they were placing a penalty on Sunday drinking; what they have really done is to place a premium on prostitution [213].
An attempt of a different kind to strike a blow at once at alcohol and at prostitution has been made in Chicago, with equally unsatisfactory results. Drink and prostitution are connected, so intimately connected, indeed, that no attempt to separate them can ever be more than superficially successful even with the most minute inquisition by the police, least of all by police officers, who, in Chicago, we are officially told, are themselves sometimes found, when in uniform and on duty, drinking among prostitutes in "saloons." On May 1, 1910, the Chicago General Superintendent of Police made a rule prohibiting the sale of liquor in houses of prostitution. On the surface this rule has in most cases been observed (though only on the surface, as the field-workers of the Chicago Vice Commission easily discovered), and a blow was thus dealt to those houses which derive a large profit from the sale of drinks on account of the high price at which they retail them. Yet even so far as the rule has been obeyed, and not evaded, has it effected any good? On this point we may trust the evidence of the Vice Commissioners of Chicago, a municipal body appointed by the Mayor and City Council, and not anxious to discredit the actions of their Police Superintendent. "As to the benefits derived from this order, either to the inmates or the public, opinions differ," they write. "It is undoubtedly true that the result of the order has been to scatter the prostitutes over a wide territory and to transfer the sale of liquor carried on heretofore in houses to the near-by saloon-keepers, and to flats and residential sections, but it is an open question whether it has resulted in the lessening of either of the two evils of prostitution and drink." [214] That is a mild statement of the results. It may be noted that there are over seven thousand drinking saloons in Chicago, so that the transfer is not difficult, while the migration to flats—of which an enormous number have been taken for purposes of prostitution (five hundred in one district alone) since this rule came into force—may indeed enable the prostitute to live a freer and more humanizing life, but in no faintest degree diminishes the prevalence of prostitution. From the narrow police standpoint, indeed, the change is a disadvantage, for it shelters the prostitute from observation, and involves an entirely new readjustment to new conditions.