The Task of Social Hygiene

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.

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