It seems to some people almost a paradox to assert that immorality should not be encountered by physical force. The same people would willingly admit that it is hopeless to rout a modern army with bows and arrows, even with the support of a fanfare of trumpets. Yet that metaphor, as we have seen, altogether fails to represent the inadequacy of law in the face of immorality. We are concerned with a method of fighting which is not merely inadequate, but, as has been demonstrated many times during the last two thousand years, actually fortifies and even dignifies the foe it professes to attack. But the failure of physical force to suppress the spiritual evil of immorality by no means indicates that a like failure would attend the more rational tactics of opposing a spiritual force by spiritual force. The virility of our morals is not proved by any weak attempt to call in the aid of the secular arm of law or the ecclesiastical arm of theology. If a morality cannot by its own proper virtue hold its opposing immorality in check then there is something wrong with that morality. It runs the risk of encountering a fresh and more vigorous movement of morality. Men begin to think that, if not the whole truth, there is yet a real element of truth in the assertion of Nietzsche: "We believe that severity, violence, slavery, danger in the street and in the heart, secrecy, stoicism, tempter's art and devilry of every kind, everything wicked, tyrannical, predatory and serpentine in man, serves as well for the elevation of the human species as its opposite." [220] To ignore altogether the affirmation of that opposing morality, it may be, would be to breed a race of weaklings, fatally doomed to succumb helplessly to the first breath of temptation.
Although we are passing through a wave of moral legislation, there are yet indications that a sounder movement is coming into action. The demand for the teaching of sexual hygiene which parents, teachers, and physicians in Germany, the United States and elsewhere, are now striving to formulate and to supply will, if it is wisely carried out, effect far more for public morals than all the legislation in the world. Inconsistently enough, some of those who clamour for moral legislation also advocate the teaching of sexual hygiene. But there is no room for compromise or combination here. A training in sexual hygiene has no meaning if it is not a training, for men and women alike, in personal and social responsibility, in the right to know and to discriminate, and in so doing to attain self-conquest. A generation thus trained to self-respect and to respect for others has no use for a web of official regulations to protect its feeble and cloistered virtues from possible visions of evil, and an army of police to conduct it homewards at 9 p.m. Nor, on the other hand, can any reliable sense of social responsibility ever be developed in such an unwholesome atmosphere of petty moral officialdom. The two methods of moralization are radically antagonistic. There can be no doubt which of them we ought to pursue if we really desire to breed a firmly-fibred, clean-minded, and self-reliant race of manly men and womanly women.
[191] Westermarck, Origin and Development of the Moral Ideas, Vol. I, p. 160; see also chapter on sexual morality in Havelock Ellis, Studies in the Psychology of Sex, Vol. VI, "Sex 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 über sich Selbst (Archiv für 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 homosexuality 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, bestial, and homosexual 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 französischen und deustchen Sittlichkeits-Gesetzgebung und Rechtsprechung," Sexual-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 Strafwürdig?" 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.