CHAPTER XIII

RIGHTS IN SEXUAL LIFE--GENERALITIES =Rights and Liberty.=--Human ideas of right are very curious. Every one appeals to right and liberty, and naturally thinks of himself first, without perceiving that in continually claiming his proper rights, he tramples under foot those of others. How beautiful are these words Rights and Liberty! But in everyday life in what an uncompromising way they oppose each other! To give satisfaction to my rights and liberty, the right of complete development, according to my natural sentiments, is a thing which is perfectly impossible; or, is only practicable by constantly infringing the right and liberty of my fellow beings. Nevertheless people keep harping on this theme; with the exalted tone of intimate conviction they inveigh against our social organization, cursing the malice of others, but show themselves perfectly incapable of resolving the contradictions which gave rise to their thirst for liberty and justice. The cry of despair addressed to right and liberty by modern society is nothing else than the expression of the instinctive sentiment of anger and revolt produced by the natural evolution of our phylogeny. The savage instincts, still considerable in the hereditary foundation of human nature (the mneme), revolt against the straight-jacket placed on them by social life, and against the want of liberty on the earth, which is already too small for humanity. The natural man is eager for expansion and liberty, and accustoms himself with difficulty to the severe restrictions which social necessities impose upon him. His nature is still that of a semi-nomadic animal, living as an autocrat with his family, possessed of a number of egoistic wants, and, wherever he goes, opposing the rights, liberties and desires of other men, who generally compel him to subordinate his desires to theirs. This is the true reason of this impotent cry of vexation and anger against the malice of others and the defectiveness of social organization. And yet this cry is absolutely necessary, in order that we may find and put in practice a social formula as tolerable as possible for the future. But, if we except the question of capital and labor, there is no domain in which social hindrance is so cruelly felt as in the sexual. What is human right? Apart from formally admitted distinctions we shall divide what is called right from the psychological and human point of view into two categories of ideas; _natural rights_ and _conventional rights_. =Natural Rights. Right of the Stronger.=--Natural right is quite a relative idea: the right to life and its conditions. But, as in this world, which is said to be created by a personal and perfect God, things are so amicably arranged that living creatures can only exist by devouring one another, the oldest effective natural right of every living being is precisely that of devouring others weaker than itself. This is the right of the stronger. Therefore, the absolute natural right is the right of the stronger. =Rights of Groups. Ants.=--These notions become altered, however, if we regard them from the point of view of _relative_ natural right. This does not concern all living beings, but only certain groups. The rights of groups are relative from a double point of view. On the one hand they give the group of individuals concerned the right of interfering with the right to life of other groups, even to extinction. On the other hand--and this is the better aspect of the rights of groups--they are completed by what are called the duties of each individual toward others of the same group, that is to say, the obligation to have regard for and even protect their rights equally as his own. The rights of a group include the social rights and duties in the limits of that group. It is among animals, especially the ants, that we find the most ideal organization of the rights of a group. Each individual of the ant colony acts in the interests of the community, which are the same as its own. It has the right to be nourished and housed and to satisfy all its immediate wants, but at the same time it is its duty to labor unceasingly in building and repairing the common dwelling, to nourish its fellows, to aid in the reproduction and bringing-up of the brood, to defend the community and even to take the offensive against every living being who does not belong to the community, in order to increase its resources. The rights and duties have here become completely _instinctive by adaptation_, that is to say, they are performed without commands or instruction. They result spontaneously from the natural organization of ants without the least external obligation intervening. Here, the cry of distress of the ferocious human beast, of whom we have just spoken, is completely absent, for duty is replaced by instinct or by appetite, and its accomplishment is accompanied by a natural sentiment of pleasure. Every ant could be idle without being punished by its comrades, if it were capable of wishing to be so, but this is impossible. Communities of ants can only exist on the basis of the social instinct of labor and mutual support, without which they would immediately disappear. =Egoism and the Rights of Groups in Man. Human Rights.=--The notions of the rights of groups in man are infinitely more complicated and more difficult to understand. As we have already seen, the most primordial instinctive sentiment in man is limited to his family and his immediate surroundings. But here even it leaves much to be desired. Family disputes, quarrels between brothers and sisters are frequent enough; parricide, fratricide and infanticide are not rare. In addition to this, beyond the narrow circle of the family, disputes, hatred between individuals, deception, robbery and many worse things are always the order of the day. In struggles between parties and classes, in the abuse of privileges of caste and fortune, in war, in commerce, in a word in everything, private interests of egoism take precedence of the general interests of humanity. These facts, and a thousand other pitiable phenomena of the same kind in human society, bear witness to the egoistic and rapacious nature of man, which proves how little the social instinct is developed in his brain. Human society is founded much more on custom and tradition, imposed by the force of circumstances, than on nature. Human infants resemble kittens at first much more than young social beings. In primitive times, when the earth appeared large to man, the rights of groups were limited to small communities which looked upon other men, the same as animals and plants, as legitimate prey. Cannibalism and even the chase show clearly that man began by becoming more rapacious and more carnivorous than his pithecanthropoid ancestor, and his cousin the ape of the present day. It is only later, after the progressive enlargement of stronger communities at the expense of weaker; still later, when man commenced to comprehend the sufferings for the community which result from the autocracy and passion for unlimited pleasure of a few persons; finally, when he discovered the narrow limits of the earth, that notions of humanity and humanitarianism, that is to say the sentiment of human solidarity, were able to develop in the general conscience. It was, however, one of the ancients who said "I am a man and nothing human can be strange to me." But in his time, as in that of Jesus Christ, civilization was already far advanced and influenced by the wide humanitarian ideas, more ancient still, of the Assyrians and the Buddhists. Every one who reflects will understand that the relativity of the rights of groups in man and that of the duties which correspond to them, must in time expand and be applied, little by little, to all the human inhabitants of the earth. What is more difficult is the definition of what should be understood under the term of humanity, capable of being socialized and cultivated. No doubt, the gap which exists between the lowest living human race and the highest ape is considerable and without direct transition. However, we gradually begin to recognize, on the one hand, that we have certain duties toward animals, at least toward those which serve us, and, on the other hand, we know that certain of the lower human races, such as the pigmies, the Veddas and even the Negroes, are inaccessible to a higher civilization, and especially incapable by themselves of maintaining what a number of their individuals learn by training when they live among us. We shall, therefore, have to choose finally between the gradual extinction of these races or that of our own. It is not my business to deal with this question here, to trace the limits of civilizable humanity, or to examine the rights and duties of civilized men to each other relatively to the rest of the living world; or, in other words, to what extent civilized man should have the relative right of subjecting other living beings, exploiting them in his own interests, nourishing them, or eventually exterminating them for the safety of his own existence. As regards the animal and vegetable kingdoms, from the amoeba to the orang-utan, the question is simple enough and settled. It is much more difficult to decide for men and for peoples separated from us by great racial differences. I must emphasize the profoundness of this difference. It is evident that the higher cultivated races, or rather blends of races, which live to-day will do better to live in peace than to mutually exterminate each other. It is necessary to discuss these questions at the risk of hurting the feelings of sentimental persons. But what is the use of being blind to such patent facts? It is not too soon to look closely into the future, and it is only thus that we can arrive at any useful result. The natural rights of man should evolve more and more from a complex of social rights and duties toward a single great group, which we may call _civilized humanity_, the relative limits of which can only be traced by repeated trials and by practical experience. The instincts of the wild beast are still so deeply rooted, even in civilized men, that they can only be adapted gradually and even painfully to a natural right thus understood and limited. We must honestly admit that such a right only merits very relatively the denomination of _natural rights_. In fact, social rights are necessarily artificial in man. A few elementary rights and duties only are quite natural, especially in the sexual domain. We are concerned here with adaptations in the form of instincts which serve for the support and development of the family, as well as for the protection of the individual. Among these we may mention the right to life, the duty of labor and the right to labor, the right of the infant to be nourished by its mother and to be cared for and protected by its parents, the duty of parents to nourish their children, the duty of the husband to protect his wife, the right to obtain nourishment from the animal and vegetable kingdoms, the right to satisfy the sexual appetite, etc. There exists, however, a series of other rights and duties, which are so necessary that they may be termed natural. Such are the right to possess a dwelling place; to defend one's life against attack; to think and believe what one wishes so long as one does not impose one's ideas and faith on others; the duty to respect the life and property of one's neighbor; the duty to give a healthy and sufficient education to youth, both in body and mind, etc. If we regard the matter without prejudice, certain rights and duties which have been hitherto considered as natural and self-evident, become very doubtful. Such are ecclesiastical and religious rights and duties, patriotic and national duties, the rights and duties of war, the rights of privileged classes, the rights of property, etc. It is clear, from an unprejudiced examination of the development of humanity, that these so-called rights and duties are only the historic legacies of mysticism or of limited human groupings, and in great part artificial. The rights and duties of members of the groups in question consisted in mutually protecting their opinions and their national and religious interests, etc., and in subjecting or even trampling under foot those of other human groups. These lead us quite naturally to the second category of general notions of rights. =Conventional Rights.=--To speak correctly, conventional rights are not rights. They are simply a dogmatic sanction applied to all kinds of customs and abuses that men have appropriated, according to local circumstances and their fortuitous conquests or acquisitions. Here, the consequences of the natural rights of the stronger, religious mysticisms and all sorts of human passions, the sexual appetite especially, play a very varied and complex role. The absurdity and injustice of conventional rights is shown by the difference, often even the absolute contrast, of the corresponding conception of rights among different peoples. In one, polygamy is a right and even a divine institution; in another, it is a crime. Individual murder is generally considered as criminal, but in warfare the slaughter of masses becomes a duty and even a virtue. Theft and rapine are regarded in times of peace as crimes, but in time of war, under the form of annexation and plunder they are the uncontested rights of the victor. In a kingdom, the monarch is looked upon as a holy person and offense to his majesty as a crime; in a democracy, it is individual domination which is regarded as criminal. Falsehood and mental restriction are, in certain cases at least, the rights or even the duty of the Catholic, who is only forbidden to swear falsely in the name of God and religion, while others consider all falsehood more or less unjustifiable; others again regard every oath as sinful. The contradictions, inconsistencies, unnatural prescripts and tyrannies of what is called conventional rights in different peoples are innumerable, and the notions of our rights which we have inherited from the Romans are not much better. =Retaliation.=--In historical epochs, we see the rights of the stronger succeeded by certain notions of rights which may still be considered as primordial; such is the law of retaliation or lynch law, based on the natural sentiment of vengeance, which is itself derived from anger, jealousy and pride, and says "An eye for an eye and a tooth for a tooth." The law of retaliation is very natural and very human. Although of savage origin, it has at least the merit of recognizing in men an equal right in retaliation for injury caused in a brutal fashion, without considering inner motives. =Expiation.=--We also find in the old law another notion derived partly from the preceding, but chiefly from religious mysticism--the notion of expiation. After constructing in his own image a divinity blinded by human passions, man attributed to him, from fear of vengeance, sentiments of anger and indignation regarding his baseness and malice toward his neighbor. He then conciliated the divinity and appeased his wrath by making sacrifices, human or otherwise. At first, sacrifices were not made of criminals or guilty persons, but of innocent lambs, men or beasts, sometimes with all kinds of torture, to appease the supposed wrath of the gods. Gradually, however, these customs became more humane and were changed to the notions of expiation which we still have. Whosoever has committed a crime should expiate it by some kind of pain, eventually by death. In our modern penal law, notions of expiation and retaliation are blended, and when we study its roots in ethnology we are not surprised to see the expiation and punishment of so-called crimes against God or religion. We find in this fact a singular mixture of religious and judicial notions. A curious way of appeasing the divinity is the sacrifice of animals and other offerings which ancient and savage peoples made and still make, in returning thanks for victory or some other good fortune, or to appease supposed wrath. =Themis.=--In spite of all these errors, ancient civilization represented as the ideal of right a goddess of justice, _Themis_, with eyes blindfolded and holding scales in her hands. The scales signified that right and wrong should be carefully weighed against each other; the bandage, that the judge should pronounce his verdict without regard to persons, and be inaccessible to all outside influence. For the limited ideas of that period, little removed from retaliation and expiation, this blind woman with her scales was a sufficient representation of justice. She had no need to trouble about the psychology of human nature, mental disorders, diminished responsibility or ideal social improvement. =Themis Unblindfolded. Fallacy of Free-will.=--Nowadays the task of our goddess is not so simple, for the progress of humanity and science, especially of psychology and psychiatry, oblige her whether she wishes or not, to completely remove her bandage, so as to see clearly into the human brain. It is not simply a question of knowing whether an accused person has or has not committed the act which he is accused of, but also whether he knew what he was doing, what were the motives which urged him, and who is the real instigator of the misdeed. Alcohol, mental anomalies and diseases, suggestions, passions, etc., concur in influencing the human brain so that it is hardly responsible for its acts. Again, on further examination, we find that the accepted and historical notion of free-will, that is to say the absolute liberty of man's will, which constitutes the very existence of our old penal law, becomes not only more problematical, but may even be considered as a purely human illusion, resting on the fact that the indirect and remote motives of our actions are mainly subconscious. The great philosopher, Spinoza, has already demonstrated this truth in a masterly manner, and modern science confirms it in all respects. Every effect has its cause, and all our resolutions are the result of the activities of our brain, in their turn determined or influenced by hereditary engrams (instincts and dispositions) or acquired (memories), which are their internal causes, and combine with causes acting from without. Let us admit freely the fallacy of the old axiom of human free-will and endeavor to understand that what we consider as free will is nothing else than the very variable faculty of our brain, more or less developed in different individuals, of adapting its activity to that of its environment, and especially to that of other men. Also let us endeavor to take into account that our will and all our actions are, consciously or unconsciously, determined by a complex of energies or hereditary engrams (character), combined with those which have acted upon us from without during our life, as well as with emotional or intellectual sensory impressions. Our whole conception of rights, and especially of penal law, should then change. We should entirely do away with _retaliation_, a barbarous relic of a more or less animal sentiment of our ancestors, and _expiation_, the relic of a superannuated and superstitious mysticism. Modern and truly scientific reformers of penal law have already taken account of this necessity. But, in spite of the complete inefficacy of the old penal system as regards the diminution of crime, they have so far only put into practice few of their ideas. =Justification of Rights and Laws.=--After what we have just said, there only remain, two reasons to justify the existence of rights and laws: (1). To protect human society against criminals, and in general to institute ideas and laws with a view to regulate the mutual interests of men, in such a way as to result in natural conditions of existence as advantageous as possible, both for the individual and for society: (2). To study the causes of crimes, social conflicts, imperfections and inequalities, so as to obtain, by contending against these causes, an improvement in men and their social condition. It is true that what we demand here means a complete transformation of the notions of conventional right, not only in our old penal law, but also to a great extent in civil law; but this transformation is inevitable and has even already commenced. Its object is to liberate right from the grasp of an old metaphysico-religious dogmatism, and from crystalized doctrines derived from superannuated custom and abuse, and to found itself on the applied and social natural history of man, who then only will merit the name of _homo sapiens_ which was given to him by Linnaeus, the great nomenclator of living beings. Jurists have already too long based metaphysics on old barbarous customs and superstitious mysticism, transformed into dogmas. It is time that Themis removed her bandage, studied psychology, psychopathology and science, and submitted the impartial handling of her scales to the influence of truer and juster human factors, even if her work thereby becomes more difficult and more complicated. =Sexual Rights.=--While sexual sentiments form part of the most sacred and intimate conditions of individual happiness, they are also closely and indissolubly connected with the social welfare of humanity. In no domain is it more difficult to combine harmoniously the welfare of the community with that of the individual, and this is why questions of right in sexual matters are among the most difficult to solve. The satisfaction of the sexual appetite in man is part of his natural rights. Natural science compels us to formulate this principle; yet it is a dogma the consequences of which may become very grave and even fatal; for the satisfaction of a man's sexual appetite implies, not only the direct participation of one or more human beings in a common act, but also that of a much greater number in its indirect effects; and it may occasion, according to circumstances, more harm than good. If the question of reproduction did not exist, it would be more easy to put individualism in more or less harmonious accord with socialism. It is thus the sexual relations which present the greatest difficulties in the social domain. In spite of the considerable progress which has been accomplished, our modern law is still based to a great extent on the barbarous principle of the legal inequality of the sexes. The mind of man and that of woman are no doubt of different quality; nevertheless, in a society which does not possess asexual individuals like that of the ants and bees, and in which the two sexes are compelled to work together harmoniously for the social welfare, there is no reason to subordinate one sex to the other. Man may have 130 or 150 grammes more brain tissue than woman and be superior to her in his faculty of combination and invention, but this is no reason why we should only accord his wife and mother inferior social rights to his own. His bodily strength will always protect him against the possible encroachments of woman. A first postulate is, therefore, the equality of the two sexes before the law. A second postulate consists in the emancipation of infancy, in the sense that it should never be considered as an object of possession or of exploitation, as was and is still so often the case. These are the fundamental principles of a normal sexual law. In no animal do we find the abuses which man is permitted to practice toward his wife and children. Let us now pass on to special questions. CIVIL LAW The object of civil law is to regulate the relations of men to each ether. Properly speaking it does not punish, that is to say, it requires no expiation and is not concerned with crime. It seeks to improve the social basis for mutual obligations and contracts. Nevertheless, it borders on penal law as regards the question of damages which one individual must pay another whom he has injured even involuntarily, as well as by the coercive measures, both administrative and operative, which it employs. Although resting on a natural basis better adapted to the social welfare than penal law, civil law still contains the traditions of religious mysticism and the abuse of conventional right. I shall here analyze in a few words what concerns our subject in actual civil law, and shall point out the modifications which appear to me desirable. It is, however, impossible for me to enter into the details of codes, owing to absence of special knowledge. Moreover, this would lead us too far from our subject. =Marriage and Sexual Relations in General.=--The coitus of two individuals, performed with mutual deliberation and causing no harm to a third person, should be considered as a private affair, and should have no connection with either civil or penal law. However great may be the necessary restrictions of this general axiom, it must be recognized as valid in principle. Society has no right to restrict the liberty of individuals so long as it, or one of its members, is not injured by these individuals. So long as coitus is freely performed by adult and responsible persons, has no indirect consequences, and does not cause fecundation, neither society nor any one is injured. In the practice of law this axiom is not yet generally accepted. Many laws, especially among the Germanic peoples, punish concubinage, or extra-nuptial coitus. Even when concubinage is tolerated, it is considered illegitimate, so that the woman who gives herself to it and the children who result from it, have much to suffer. Although they constitute simple religious precepts, the ordinances of Liguori and others concerning coitus influence in a high degree sexual relations in Catholic countries. As a rule, coitus is only legally recognized as licit in marriage. But we have seen in Chapter VI how elastic is the term marriage, which varies from polygamy and monogamy to polyandry, and from marriage for short periods to indissoluble marriage, to say nothing of the cases where women are sacrificed on their husbands' tombs. We have seen that religious traditions, arising themselves from barbarous customs, play a great part in conjugal law. It is only by infinite trouble that the principle of civil marriage has made its way in modern civilized states. Even to-day, religious marriage is in some countries only form of union which is legally recognized. These simple facts show to what extent we are still hidebound by tradition. The idea that marriage is a divine institution and that man has the right to contract, but not to dissolve it, is still a widespread belief, however bizarre it may be. We shall not enter here into the detail of the religious forms of marriage, which is referred to in Chapters VI and XII. It is evident, from our modern and scientific point of view, which is purely human and social, that civil law only can be recognized as valid. Religious forms and ceremonies must be considered as belonging to a private domain. For this reason they concern neither the State nor society, and should be refused all legal character; for it is our duty to strive and liberate humanity from the tyranny of all imposed creeds, as we should combat all so-called State religion. =Civil Marriage.=--What then is civil marriage, and what ought it to be? Our actual civil marriage is the result of trials and compromises which require improvement. It is a contract between two persons of opposite sex whose mutual object is the reproduction of the human species. In this contract the law is unfortunately too much concerned with the personal relations of the two contracting parties, and too little with the interests of their eventual posterity, which necessitates care and attention on the part of the social legislator. Moreover, the traditional conception of the dependence of woman disturbs the purity and justice of civil marriage. In my opinion, the first fundamental principles of civil marriage should be absolute legal equality of the two conjoints and complete separation of property. The momentary amorous intoxication of a woman should not allow a man to appropriate her property in whole or in part; only truly barbarous laws could permit such iniquity, and they should be banished from all the codes of civilized countries. Moreover, in countries where woman enjoys important rights, the community of property furnishes those who are unscrupulous with the means of completely despoiling their husbands. Further, in common conjugal life, the domestic work of the wife should not be considered as obligatory and requiring no special remuneration. Her work has as much right to be considered as that of the husband, and should be entered to the wife as an asset. Community of property is so immoral that it should be considered invalid in case of ulterior dispute, when it has been instituted by private contract. It is the business of the conjoints to put it in practice if they wish, so long as they are of one mind. But when dissensions or divorce take place, it only injures the one who has remained honest, and at the same time the children. This is why such contracts ought never be definitely binding to the conjoints. Even if the marriage is not unhappy, the extravagances or blunders of one of the conjoints may ruin the whole family, in the case of common property. The _duration_ of marriage is very important. If a marriage contract exacts sexual fidelity till death, divorce is nonsense. Yet, in practice, it is obvious cruelty to keep two individuals legally bound together who can no longer live with each other. Thus, the provision and license of divorce are necessities of civil law which are certainly not ideal, but which cannot be passed over without favoring family disturbance and without sanctioning illegality and evil. Among the most frequent causes of divorce are desire for change in the husband, venereal diseases, disputes, incompatibility of temper, mental disorders, immorality, ill-treatment and crime. The sterility of one of the conjoints and incapacity for coitus may also be mentioned as reasons for divorce, although in certain circumstances, as we shall see, limited polyandry or polygyny may be much more humane than divorce. As soon as divorce is admitted, important and complicated questions of law arise when there are children. We shall refer to these later. The legal license of complete divorce thus transforms marriage into a temporary contract, which is not so far removed as one would think from the ideal relations of free love. We will examine the circumstances which, apart from the procreation of children, may attribute legal importance to the sexual relations of two persons. I must first of all observe that, if it wishes, civil legislation can very well create a state of things which gives to children born outside marriage the same rights and the same social position as legitimate children, and I will even add that such social equality would respond to the most elementary sentiments of human rights, if these were not already influenced in advance by prejudice and mysticism. =Minors.=--Civil law should stipulate that minors have not the right to marry. This may appear cruel in certain cases, but society has the right and the duty to intervene. Minors should be protected against all sexual abuse. A young girl under the age of seventeen and a boy under eighteen or twenty should be prevented from all sexual relations. This is a postulate of individual and social hygiene and consequently of all healthy matrimonial law. =Lunatics.=--The same applies to lunatics, who are legally comparable to minors. Have we the right to forcibly separate a married couple, or a couple living in concubinage, because one of the conjoints has become insane, when the other does not wish for separation? In Germany the procedure of nullity of marriage has been invented for these cases, but without gaining much. I shall return to this point in connection with another subject, but I may remark here that it is not the continuation of marriage nor that of sexual connection which injures society, but only the procreation of children. Therefore it is only the procreation of children, which should be legally prohibited, and sexual connection only when the healthy conjoint agrees to its suppression, or when the interests of the afflicted one necessitate it. In the future these particular cases may be regulated in the most convenient and humane way possible. Certain bodily infirmities which one of the conjoints has concealed from the other, or of which he was not himself aware, should also impair the validity of the marriage contract. Such are chronic infectious diseases, especially venereal, impotence in the man and sterility in the woman, when the cause was previously known. But here again, the law should only intervene at the request of the person injured, and to take certain measures to prevent the procreation of abortions, without interfering with sexual connection. =Adultery.=--An important question is that of adultery. Here again, we are of opinion that the law has not performed its duty. Proved adultery, when fidelity has been promised by contract should give the injured party the right of immediate and absolute divorce. Certain forms of adultery, which take place with the assent of the two conjoints, have in reality the character of bigamy and should neither be recognized by civil nor penal law. I will cite as an example, the case where two conjoints wish to live together for various reasons, while the impotence, disease or sterility of one of them induces him to concede to the other liberty of sexual connection with a third person, apart from marriage. In such a case neither society nor any one else is injured and all motive for legal intervention is wanting (vide André Couvreur: _La Graine_). =Divorce.=--The question of divorce becomes extremely difficult when one of the conjoints wishes for it and the other does not, and when no other reason exists for determining the marriage. We are here concerned with the malicious caprices of the god of love, from which the world will never be free. In my opinion, the law in such cases can only do one thing, and that is to protect the rights of the children, if there are any, and to compel the inconstant conjoint to provide for their nourishment. The law should also protect the pecuniary and other civil rights of the conjoint who wishes to continue life in common. Here especially we can recognize the necessity for the separation of property. On the other hand, I am convinced that it is useless to maintain at any price a union which one party does not wish for. In practice no good results from it; it is rather a moral question than a question of law. In such cases we may observe the despair of the conjoint who has remained faithful, both in the marital and legal relations of marriage. The law cannot do everything, and here it is powerless; all that it can do is to exact delay and attempt at reconciliation, which sometimes succeeds. =The Right to Satisfaction of the Sexual Appetite.=--We now come to a delicate question. The right to satisfy the sexual appetite must necessarily be restricted in more than one respect if injury to third parties is to be avoided. If we except certain pathological cases, the chief difficulty lies in the fact that the normal sexual appetite can only be satisfied by the cohabitation of two persons, and that what satisfies the one may often injure or deeply wound the other, and even the children. The matter may go so far as to concern penal law, and we shall refer to it again in this connection. But, even from the point of view of civil law, permission to satisfy the sexual appetite must necessarily depend on the consent of both parties. In my opinion no exception to this rule can be tolerated. It is not enough to protect minors; it is also necessary to prevent the abuse of the persons of adults against their will. The institution of so-called Christian marriage still contains barbarous dispositions in this respect, the wife being generally obliged to surrender herself to her lord and master as often as he pleases. This is the dark side of the picture which exacts sexual fidelity in man. Inversely, for physiological reasons, a very erotic and sexually exacting woman cannot obtain satisfaction, man being incapable of commanding erections voluntarily. She can only bring an action for divorce if she can prove that her husband is completely impotent. It is sufficient to reflect on these facts to see how difficult is the regulation of sexual connection by law. The legislation of details in this domain becomes of necessity an injustice. We have already considered the great individual variability of the sexual appetite. Attempts to regulate it by the rules of a monogamous matrimonial code are absurd and impracticable. With all the respect due to the moral sentiments of Tolstoi, we are obliged to declare that his ascetic opinions on sexual relations are only the dreams of an enthusiast. When a libidinous man marries a young girl who is sexually frigid, and when coitus continues to be a horror to his wife, it is quite as cruel to demand continence in the husband as submission in his wife. In such cases, the conditions can only be made tolerable by divorce, consent to concubinage, or bigamy, when a relative adaptation cannot be obtained by mutual concessions. At present our prejudices only allow divorce in such cases. When a man and woman are already tied by pregnancy or by a child, and when, apart from the differences in their sexual appetites, love and concord reign between them, separation would be cruel. I readily agree that such extreme circumstances should not be the rule, and that in many cases the one who is the more erotic can restrain himself, and the one who is cold become accustomed to coitus. Nevertheless, in the present chapter we are not concerned with morals but with rights, and we have only to reply to the question of knowing what should be done when, in sexual connection between two conjoints, one desires it and the other does not. The concentration of sexual passion on a single individual, which is generally good from the social point of view, is fatal in these special cases. A man falls passionately in love with a woman, or a woman with a man, but instead of being reciprocal this love is despised by the other. Such a misfortune, which often leads to the most tragic consequences, not only in novels but also in real life, is only reparable by the renunciation of the one who loves. It is surely less cruel to renounce a proposed union than to become the sexual prey of a person one does not love. It is, therefore, inhuman and immoral, as much in religion as in poetry, to preach in any form, the exclusiveness of sentiments, the indissolubility of monogamous marriage, and the immutability of love. It has often been stated that a woman can only love once in her life. Such a false and cruel generalization must be energetically opposed. It is the business of sentimental poets to delude themselves with such sentiments, but those who think it a duty to adhere to dogmas of this kind are to be pitied. It is not only death or illness of one of the conjoints, dissensions and infidelity, which may cause separation of a sexual union, but as is frequently the case, rejected love may transform into perpetual martyrdom the life of a person imbued with such ideas. The ascetic sentimentalism which results from this has a strong element of suggestion which is bad to cultivate. If we would give the one who does not love the absolute right of repelling the sexual advances of the other, not only the law but morality should in return allow the rejected lover to make another choice, where his desire for love will find an echo. At the present day many people, especially women, prefer to endure their unhappiness and even that of their children to the opprobrium to which they are often exposed by public opinion in divorce or remarriage, or even in becoming engaged to another person, when their love has been rejected. It is, therefore, the duty of the legislator to banish from the law everything which may appear to sanction such opprobrium. Most laws recognize not only impotence, but also assault, cruelty, venereal disease, adultery, etc., as grounds for divorce, but the pressure of public opinion causes the existing laws to be too little used. We must remember that such violations of conjugal duties give the injured party the right of claiming damages. Nevertheless, we may say that the simplest civil action by one conjoint against the other is veritably monstrous when it is not accompanied by an action for divorce. When once the couple have come to legal disputes, their marriage is in reality dissolved and its continuation is an absurdity. =Venereal Diseases.=--A very important question from the humanitarian and hygienic point of view is that of venereal disease. A man (or woman) who knows himself (or herself) to be affected with a venereal disease in an infectious state, and who in spite of this has connection with a woman, should be regarded as a criminal, at least if the woman with whom he has connection is not affected with the same disease. Here the law should intervene by awarding heavy damages to the party who has been infected; eventually it may be treated as a criminal offense. In such cases claim should be made by the injured party, but unfortunately this is seldom done owing to feelings of shame. In the future, however, we may hope that the law may be improved for the benefit of humanity, for this would be one of the most efficacious means of combating venereal disease, and hence avoiding much misfortune for families and children. It would also be desirable to prevent the procreation of syphilitic infants, for instance, by the use of preventatives (vide Chapter XIV). =Prostitution.=--Another difficult question is that of the relation of civil law to prostitution. All State regulation of prostitution is to be absolutely condemned; but what position should civil law take up with regard to free prostitution? We have already seen what an abominable social evil is this commerce in human bodies, as regards social morality. But it is absolutely useless to try and abolish this commerce without attacking its lord and master--_money_. The venality of man implies the commerce of his body, and as long as everything can be got for money, coitus can be bought. It is, therefore, this venality which must be attacked, not only by condemning it in words but by cutting its roots. If the State will not withdraw its protecting hand from prostitution, it might at least combat proxenetism and the public manifestations of prostitution, by all the legal and administrative measures at its disposal. It would thus reduce the matter to intimate personal relations. Let us hope that, little by little, a social organization more just to labor and wages, combined with the prohibition of alcoholic drinks, will, in the future, annihilate the causes of commerce in human bodies. =Children as a Reason for Civil Marriage.=--To resume; we find that civil marriage should, by progressive reforms, become a much more free contract than it is at present, having for its object a common sexual life. The law should abandon its useless and often harmful chicanery concerning the questions of sexual relations and love, and regulate more carefully the duties of parents toward their children, and thus protect future generations against the abuse of the present generation. The difference which exists between marriage and free love should gradually disappear, by instituting natural intimate relations on the basis of sentiments of social morality, instead of maintaining the pretended divine origin of a social institution. It is difficult to avoid a smile when we hear the term "divine institution" applied to the marriage of a rich girl with a man who has been bought for her. (Vide Chapter X.) Various propositions have been made to give more dignity to the unions of free love, which now exist and which always have existed. Modern women have remarked that the absurd custom of naming the celibate woman differently to the married stigmatizes in society a number of poor women and innocent children, and that it would be quite as just to apply the term "damoiseau" to celibate men as "mademoiselle" to non-married girls. An unmarried woman who has a child, and who has only committed the sin of obeying nature, is branded with the stamp of shame. It is the children who constitute the true bond of marriage and give it a legal character. When there are no children all legal and State interference with conjugal affairs loses its sense so long as no one is injured, and civil marriage can then be greatly simplified. I maintain that so long as a sterile union, of whatever kind, between responsible persons is voluntary, provokes no conflict between those who have contracted it, and causes no injury to a third party, the law has no right to meddle with it; because this union does not concern society nor any of its members, excepting the two parties interested, who are in accord. At the present time, in many countries, the existing laws can be utilized to form marriage contracts stipulating separation of property, the right of each of the conjoints to the produce of his or her work, as well as certain reciprocal rights and duties between the parents and children. Matters can thus be arranged so as to correct more or less the defects of the law. =Marriage of Inverts.=--A peculiar and characteristic phenomenon is the ardent desire of many sexual perverts, especially inverts, to become secretly engaged or married to the abnormal homosexual object of their love. It is needless to say that there can be no question of legal regulation of such pathological marriages. But the law may ignore them when they do no harm to any one, and regard them as private affairs, especially when they prevent much worse evils, such as the marriage of an invert to a normal individual. =Civil Rights of Children. Matriarchism.=--As we have already said, it is the children who constitute the real phylogenetic and psychological bonds in marriage and the family, bonds which are deeply rooted in human nature. This is so true that among many savage peoples, if not in most, marriage is not considered legal as long as it is sterile. Even among civilized people sterile women are generally regarded as of less value. We may, therefore, regard the article in the Code Napoleon which forbids inquiry into paternity as an unnatural measure, or as a monstrosity of civil law. Two human beings who procreate others contract common duties and responsibility of the highest importance. They are, perhaps, the highest social duties that man can assume. Is it not then infamous and unnatural to legally liberate one only of the procreators, the man, from all his responsibilities, simply because certain religious or civil formalities were omitted before procreation? Is the man less guilty than the woman in procreation apart from marriage, if we can use the term guilt in such cases? Is it not a ridiculous and cruel irony to call _natural children_ those born apart from marriage? Perhaps legitimate children are supernatural, or unnatural! Is it not infamous to brand with the seal of shame, even before their birth, poor illegitimate children, and to confirm this indignity by making them bear their mother's name instead of their father's? The most elementary natural law exacts that all children, whether "legitimate" or "illegitimate," should have the same social rights, and that they should bear either the name of their real father or that of their mother; the latter denomination would be the more natural and logical. Denomination by the maternal line corresponds to the system of matriarchism (Chapters VI and XIX), which is often met with among savage races, and which is more just and leads to less abuse than patriarchism. Moreover, when women shall have obtained their proper rights, there will be an end of the exclusive authority of one of the conjoints in marriage. Equality in the rights of the two sexes will naturally lead to denomination in the maternal line, for reasons of simplicity, the mother being more closely related to the child than the father. Maternity may, no doubt, be sometimes uncertain, as in the case of foundlings or changelings, but on the whole it is infinitely more easy to establish than paternity. It is sufficient for the mother to have sexual connection with two men at the time of conception to render paternity doubtful. Again, the mother has a number of pains, cares and dangers to undergo in the course of the procreation and education of children, which the father escapes. Nature thus gives the mother the right to give her name to the family. Our legislation is unfortunately far from recognizing such natural right. We may nevertheless form a primary proposition, because in my opinion its recognition would avoid much complicated litigation: _In nature, whenever the offspring of an animal have a protracted and dependent infancy, it is the duty of the parents to nourish them and bring them up. To allow human parents to dispense with this duty, on the grounds of badly constructed and unnatural social theories, is to encourage promiscuity, and consequently degeneration of society. It is easy to change social customs which are only based on artificial dogmas sanctioned by tradition, fashion and habit, whether they are of a religious nature or otherwise. But a social organization can never violate with impunity the true laws of human nature which are deeply rooted in our phylogenetic instincts, without disastrous effects._ In Chapters VI and VII we have given irrefutable proof that family life and the sentiments of sympathy between husband and wife, parents and children, constitute the phylogenetic basis of the sexual relations of humanity. Whatever may be the egoistic polygamous instincts of man, we can affirm that a natural and true monogamy constitutes the highest and best form of his sexual relations and of his love. No doubt there are many exceptions which must be taken into account. It is absurd to shut our eyes to the fact that our degenerate social customs have created unnatural circumstances in which parents behave shamefully toward their children, exploiting them, training them systematically to mendacity, prostitution and crime, or else ill-treating them. We even see unnatural parents, to save legal consequences, get rid of children who inconvenience them by the aid of slow and coldly calculated martyrdom, which leads them to certain death. It is, therefore, necessary to establish special legal provision for all these exceptional cases, to protect children against the power of unworthy parents and all forms of abuse. I must here draw attention to the impulse which has recently been given to Austrian legislation on the protection of children, by Lydia von Wolfring. The State brings up, in philanthropic institutions, children who have been maltreated, neglected or abandoned, after removal from their unworthy parents, but without relieving the latter of their duty in providing nourishment. According to Miss Wolfring's system, they are cared for by honest couples without children who wish for them, under the supervision of the aforesaid institutions. In this way the children enjoy family life. For educational reasons, the natural family may be imitated in these artificial ones, by giving to each couple children of both sexes and different ages. The result is perfect: I have seen in Vienna artificial families of ten children formed in this way. This shows again the rule confirmed by the exception; it would be better for the good seed to be more fruitful and the bad sterile. The normal condition must, however, always be for parents to bring up their own children. But here the State and the school should come to their aid, and even intervene with authority; for society is under the obligation of educating its children to a certain degree of culture, and maternal or paternal authority should not have the right to prevent or even attenuate this social work. Obligatory and gratuitous education is thus a duty of the State which is becoming more and more recognized everywhere, although it is still very incomplete and often badly carried out. The State should, moreover, protect the children by restricting the power of parents more than is done at present. The child should not be allowed to become an object for exploitation by its parents. It has also the right to be protected against all unmerited punishment and ill-treatment. Corporal punishment, which is still practiced in some schools, is a relic of barbarism which ought to disappear. The State should severely enforce the duty of the procreators of children to nourish their offspring. Rich or poor, no father or mother should escape this duty, whether the child is legitimate or illegitimate. In our imperfect social condition, it is still much too easy for the man to escape and abandon his child to the mother, or to public charity. He should be compelled to provide for the life and education of his children, whether legitimate or illegitimate, if he does not bring them up himself. If unable to provide money, he should do the equivalent in labor. Such measures, strictly enforced, would be more efficacious than all the complicated laws on sexual relations, in maintaining monogamy and fidelity. I repeat, that these measures should apply to all unworthy parents from whom we are obliged to remove the children. These parents are not always of the poorer class. It may be objected that I am unjust in charging such duties to poor people who can often hardly keep themselves. I agree that in the present state of society it is quite impossible for many parents to undertake such important duties. But duty means right, and it is evident that we must place rights by the side of the duties which we impose on parents. True justice in this question can only be attained by the essential progress of socialism. By socialism, I do not mean certain vague communistic doctrines, nor the Utopias of anarchists who imagine that "man was born good," but simply an essential social progress in the struggle against the domination of individual capital, that is to say, usury applied to the labor of others owing to the possession of means of production, which is now left to speculators. Men should be enabled to enjoy the product of their labor, so that they can lead a human life worthy of the name, in sexual matters as in others. But this is not all. From the social point of view, it is absolutely unjust that men who procreate children should alone bear the burden of the future generation. We know the egoistic proverb of the celibates, who say: "I have the right to take life easily, to enjoy myself and be idle, if I renounce the happiness of having children, either of my own accord or from necessity." This proverb, which may be transposed into "after me the deluge," cannot be recognized by any healthy social legislation. It is the duty of the State to relieve large families, to facilitate the procreation of healthy children, and to impose more work and taxes (for instance, artificial families) on sterile individuals. The old laws were better than ours in this respect. I have mentioned above the excellent custom, which exists at the present day in Norway, of only charging half-price on the boats to married women and other female members of the same family. I cannot here enter into the details of this question, but if such reforms are some day realized, if universal compulsory education, pensions for old age, orphans and invalids, etc., are introduced, then no man will have valid motives for escaping the duty of feeding his children and bringing them up decently in family life. This will be left only to the idle and vicious. Moreover, I can support my propositions by facts. If we compare the nature of delinquents, abandoned children, vagabonds, etc., in a country where little or nothing has been done for the people (Russia, Galicia, Vienna, etc.), with that of the same individuals in Switzerland, for example, where much has already been done for the poor, we find this result: In Switzerland, these individuals are nearly all tainted with alcoholism or pathological heredity; they consist of alcoholics, incorrigibles, and congenital decadents, and education can do little for them, because nearly all those who have a better hereditary foundation have been able to earn their living by honest work. In Russia, Galicia, and even in Vienna, we are, on the contrary, astonished to see how many honest natures there are among the disinherited, when they are provided with work and education. This fact speaks more than the contradictory statements which the fanatics of party politics hurl at each other's heads. =Inquiry into Paternity.=--It will be objected that inquiry into paternity is often very difficult and dangerous. I do not deny this; but, when women have obtained their natural rights, and when the education of young girls is guided by the principles which we have enunciated in Chapter XVII, the matter will become much easier. Moreover, even now, we can with energy and good will determine paternity in most cases. Although the great improvement in means of transport assists fugitives, it also favors the discovery and arrest of individuals all over the world. International relations between all civilized states are improving from day to day. When the world is more completely conquered by civilization, we may hope that it will become increasingly difficult for evildoers to escape their duties. Regarding this question from all points of view it is impossible for us to give up this primordial condition for the preservation of human society, which consists in making parents responsible for the nourishment and education of their children. The famous ideas of phalanstery and promiscuity, so often advanced, originated in theoretical and dogmatic minds which had lost their instinctive sense of human nature, and ignored what natural science and ethnology have revealed to us. But the responsibility of parents extends to another domain--the duty of not procreating children who are unhealthy in body and mind. We shall return to this question later on. =Guardianship.=--An excellent institution of our present legislation is that of the guardianship of orphans, lunatics, etc. It requires to be developed extensively and with care. On the contrary, an evil custom is the right accorded by certain countries to parishes charged with poor and abandoned orphans, of delivering them by public tender to the man who offers the lowest pension--and only requires them for work. This system results in odious abuse, such as neglect, mendicity and ill-treatment. The fate of illegitimate children who are "farmed out" is still worse. A tacit alliance is established between rapacity on the one hand and social sexual hypocrisy on the other. A number of infanticides and abortions result, either from poverty, or from sentiments of shame due to our moral customs. Here, civil law and penal law should combine and take energetic humanitarian measures to put a stop to this sad abuse. An excellent institution is that of homes in the country established for unmarried mothers and their children, and for abandoned mothers in general. =Free Love and Civil Marriage.=--When all the propositions we have drawn up have been realized by social legislation, the difference which now exists between marriage and free love will be little more than a form. The consequences of these two kinds of union will become the same, both for parents and children; the only distinction will consist in the existence or non-existence of official control. True monogamy will lose nothing, but will gain much. We shall not then have obligatory monogamy as at present, absolute in form, artificially maintained by the aid of prostitution, that is by the most disgusting form of promiscuity which renders monogamy illusory; but we shall have in its place a relative monogamy much more solidly built on the natural rights of the two sexes, it is true more free in form, but fundamentally much stronger in the natural and instinctive duties dictated by a truly free and reasoned union, as well as by the duties by which parents will be bound to their children. =Form and Duration of Civil Marriage.=--Although it may be true that monogamy constitutes the most normal and natural form of family union, and offers the best conditions for lasting happiness, both for parents and children, we must be blindly prejudiced not to admit that it is unnatural to consider it as the only sheet anchor in sexual relationship, the only admissible form of marriage, and to make it a straight-jacket. History and ethnography show us that polygamous races are strongly developed and are still developing; on the other hand, it is true that polyandrous races degenerate. Again, impartial observation of our Christian monogamy shows us that it depends to a great extent on appearances, that it is full of trickery and hypocrisy, and that to legally enforce it for life must be considered as absolutely impossible. In Catholic countries which prohibit divorce, the latter has been replaced by separation, and this becomes the most constant source of adultery. The more the laws of a country impede divorce, the more one must close one's eyes to promiscuity or prostitution, which has even been regulated by the State by the aid of proxenetism, all the while preaching monogamy in a loud voice. These bitter lessons which practice has given to the partisan, of obligatory monogamy, prove the absurdity of attempting to restrain the natural appetites of man by force and by artificial obstacles. That which succeeds, not without difficulty, with some strong characters, and more easily with naturally cold temperaments, is impossible to realize in the masses. Polyandry is usually the result of poverty, and the polyandrous races are little fecund and tend to disappear. The normal man is instinctively more polygynous than the normal woman is polyandrous. There are, however, cases where polyandry is justifiable. There are women whose sexual appetite, more or less pathological, is so insatiable that a normal man is incapable of satisfying it. If such women were served by several Don Juans by means of a free contract, this would be better than giving themselves in despair to prostitution (there are some prostitutes created by nymphomania). This system would also be better than the seduction of normal young girls by the Don Juans in question. Polygyny is still more indicated when the sterility of the woman or her repugnance to sexual intercourse cause family disturbances. In speaking of polygamy in Chapter VI, we have shown that it exists in several forms, and that these are not all so humiliating for the women as people think, who only know of the shameful abuses of the Mussulman's harem. What lowers the moral level of polygyny is especially the barbarous system of marriage by purchase, by which the women become slaves burdened with heavy labor, and are in a state of legal dependence. We have seen that polygyny has a higher moral character among certain Indian tribes where matriarchism rules, and where the wife is mistress of the house and family. The danger of degradation of the woman ceases when she is equal to the man as regards rights and property. In fact, in such a social state, polygyny can only constitute an exception. It is here entirely free and becomes all the more innocent because divorce is facilitated and strict laws on the feeding and education of the children limit the male sexual appetite. I even venture to maintain that the stability of monogamous marriage, which should be based on mutual sentiments of respect and love, would be much better guaranteed than hitherto by legal liberty of conjugal ties, and by duty to children such as I have proposed. If this became recognized as conventional, men and women fit to understand each other and love in a lasting manner, would find suitable mates more easily, and would become united more permanently when their chains were voluntary. If marriages on trial became more frequent in the form of short unions, ending with separation, this would not be a great evil, for similar unions occur every day in a much baser form. Moreover, the effect of legislation with regard to children would put a curb on immorality and passion, which cause their worst effects. If the objection is raised that this would lead immoral people to avoid the procreation of children so as to enjoy more varied sexual pleasures, I reply that this would be beneficial, for this anti-social class of individuals would be eliminated by sterility, by a kind of negative selection. We thus place two natural appetites in antagonism; that of procreation on the one hand, and sexual enjoyment on the other. Whoever inclines to the first, which is the higher and tends to preserve the species, is obliged to restrain himself in the second, without, however, falling into unnatural asceticism. =Consanguineous Marriages.=--To avoid injurious consanguinity, it is sufficient, in my opinion, to prohibit the procreation of children between direct and collateral relations, especially between parents and children and between brothers and sisters. Anything more than this is only useless chicanery. Laws which prohibit marriage between relations by alliance are absurd, for instance those which forbid a widower to marry his sister-in-law (deceased wife's sister), etc. Among some peoples such unions are ordained by law! There is also no valid reason to prohibit unions between first cousins or between uncles and aunts, with nephews and nieces. There is nothing to prove that such marriages are injurious to the offspring. What is harmful is the accumulation of hereditary taints, whether they occur in relations or persons who are strangers to each other. Nevertheless, the _perpetuation_ of consanguineous unions in the same family is not as a rule advisable. =Restriction of Personal Liberty in Sexual Life Among Harmful or Dangerous Individuals.=--The inability of men to distinguish, among the motives of the acts of their fellows, what is abnormal, unhealthy, impulsive or obsessional, from what is healthy and normal is one of the most deplorable phenomena in social life, and greatly hinders the action of reformatory civil legislation and rational administrative measures. The passionate, confused and unreasonable sentiments of the masses give expression, according to the impulse of the moment, to two contradictory absurdities and injustices. On the one hand, they cry out against arbitrary constraint of individual liberty, against illegal restriction or detention, when competent judges or experts try to limit the movements of dangerous individuals affected with mental disorders, but who appear sane to the incompetent public; or when, to insure social safety, they send these individuals to a lunatic asylum, or limit their dangerous liberty in some other way. On the other hand, when such an individual goes free, thanks to the intervention of incompetent meddlers, and commits assassination, violation, incendiarism, or all kinds of sadic atrocities, or even only terrorizes his own family, these same people, suddenly animated by contrary sentiments of vengeance, imperiously demand an exemplary expiation and all possible reprisals. This sometimes goes as far as torture of the culprit or burning at the stake, as with the lynchers in America. It is very difficult for the psychiatrist, who is the competent expert in these matters, to make truth and impartiality prevail. He is nearly always suspected of seeing madness everywhere, and of being afflicted with a mania for sending sane persons to asylums! In reality, he desires to take measures which are at the same time humane for the insane and protective for society, so as to treat as equitably and reasonably as possible the unfortunates who are more or less irresponsible for their acts; he wishes to see established laws and organizations which will efficiently protect the insane against themselves and against the exploitation and abuse of others, at the same time preventing them from doing injury to society. On the other hand, society and with it the old style of jurist, in their ignorant dread of psychopathological matters, endeavor to take all possible measures to protect the sane public against the alienists, thus completely neglecting the true interests of the insane as well as those of society, while fighting against a phantom! The anxiety and mistrust of the public in this matter are continually kept up by "brigand stories" related by certain insane or semi-insane persons, which are spread by the press, always eager for scandal, or by pamphlets which the cheapness of printing places within the reach of the poorest! These phenomena of public psychology greatly hinder the most urgent reforms. The public regard asylums with horror, and the path of the alienist is thorny, for he is exposed to continual accusations and threats whatever he may do, a situation which does not encourage him to suggest bold innovations. Ignorant of psychology and especially of psychopathology, the public and with it the formal jurist, the slave of codes (I am only speaking of honest lawyers, and not of the number who abuse the situation to obtain oratorical and other success and crown themselves with laurels), regard themselves as the champions of individual liberty, and are unable to perceive that the net result of their efforts is, on the one hand, to condemn a considerable number of insane and crazy persons to prison, and on the other hand to assure liberty and impunity to the most dangerous individuals, always ready to commit the most atrocious crimes, or at any rate to make martyrs of a number of patient and innocent beings, hard-working and healthy in mind, especially women and children. The alienists, who see clearly into all this misery, easily become pessimistic in their impotence against the want of sense, ignorance and unconscious passion of the masses, and even competent authorities. The natural cowardice of men often makes them shut their eyes to avoid nuisances, and causes them to take no action against the most dangerous monsters, and especially against those who are most mischievous by their pens. This is why the martyrdom of unfortunate women and children illtreated by chronic alcoholics, sadists and other neuropaths or psychopaths, never comes to an end, owing to the stupid outcry against so-called violation of individual liberty. On this soil, sexual atrocities and crimes, largely increased by drink, play an important part. Without troubling myself about prejudice and indignation I shall say in a few words what appears to me to be urgent: So long as jurists and legislators will not study either psychology or psychiatry, and will not submit all habitual criminals and all dangerous men to an expert examination, all serious reform in this domain will remain impossible. To improve the present state of affairs a common understanding between jurists and alienists is urgent; but this can only be attained by jurists making a study of psychology, and a kind of practical clinic among imprisoned criminals. How can one judge and condemn one's neighbor without having the least idea of the state of mind of these pariahs of society? All the jurists who have the welfare of humanity at heart, should support the _international union of penal law_, and the efforts of men like Professor Franz von Liszt, Gaukler of Caen, and many other courageous reformers.[8] It is needless to say that it is not sufficient to combat the excesses of criminal and dangerous individuals, such as sadists, for example, by placing them under supervision and preventing them doing harm. It is also necessary to attack the cause of the evil by preventing their germs from being reproduced, degenerated as they usually are by the blastophthoria of their alcoholic parents (vide Chapter I). The first question, which is purely legal and administrative, does not concern us here; but I may be allowed to say a few words on the second. Zealous and advanced reformers have proposed castration in such cases, which has provoked a general cry of indignation. This has been discussed in certain American states. The hyperæsthetic sentiment of our modern civilization cannot tolerate such ideas, while ancient races such as the Islamites provided, and still provide eunuchs as servants, who are free from danger for their wives, and think little of hanging or decapitating men who cause them any trouble. In the same way, we are dumb and impassive before the butcheries of war, because they are fashionable, especially when we do not come in contact with them. The Pope himself formerly procured eunuchs in order to have soprano voices in his church, and did not hesitate to castrate young boys for this purpose. The times change and we change with them! For some years, however, castration has been employed as a remedy for certain disorders both in men and women, especially for hysteria in women. I admit here that, in an asylum which I superintend, I have castrated a veritable monster afflicted with constitutional mental disorders, taking advantage of the fact that he himself requested this operation to relieve him of pain in his seminal vesicles, but with the chief object of preventing the production of unfortunate children tainted with his hereditary complaint. Many years ago I also castrated a young hysterical girl of fourteen, whose mother and grandmother were both prostitutes, and who had already begun to have intercourse with all the urchins in the street. Here again, I frankly admit that the hysterical troubles of the patient served me as an excuse to prevent this unfortunate girl from reproducing beings who would probably resemble her. I am of opinion that castration, or some more benign operation, such as dislocation of the Fallopian tubes in women (which renders them sterile without destroying the ovaries, or even attenuating the sexual appetite) should be performed in order to prevent the reproduction of the most deplorable and most dangerous beings. Among certain individuals, such as sadists, whose sexual appetite is dangerous in itself, castration would be necessary. In my opinion, the more benign operations are indicated in all individuals whose psychopathological condition in this domain is such that they are absolutely incapable of resisting their impulses, or of understanding the dictates of reason. By this means they could go free instead of being incarcerated in asylums. On the other hand, I must emphasize the fact that such measures, the personal consequences of which are so serious, should only be taken in the case of absolutely dangerous, incurable individuals, concerning whose pathological state there can be no doubt. I also believe that these individuals, especially those with sexual abnormalities, would very often consent to the operation, as was the case with my two patients. It would be a great advance if civil legislation would in such cases accord official recognition to castration or dislocation of the tubes, with the consent of the criminal or patient concerned. At present, our laws and regulations are such that a psychopathological monster cannot even be castrated when he wishes it, because medical men refuse to undertake such an operation without a positive medical indication of the usual kind, and because there is no legal protection; yet, when done in time, castration would often save sadists and other dangerous perverts from a criminal life, and society from their crimes and those of their offspring. When it is only a question of avoiding the procreation of tainted children, it would be sufficient to instruct reasonable people in the methods of avoiding conception (vide Chapter XIV). It is important to bear in mind that modern legislation on marriage often flavors the reproduction of criminals, lunatics and invalids, while it hinders the production of healthy children by men who are intelligent, honest and robust. When an abnormal or unhealthy man is married, his wife is obliged to submit to the conception of tainted children. On the other hand, when a strong, healthy and intelligent girl is in a situation, it often happens that everything is done to prevent her marrying, so as not to lose her services; the more conscientious she is and the more attached to her masters, the more often is this likely to occur. Girls who have illegitimate children often lose their situations and their honor. The consideration of cases of everyday occurrence is sufficient to grasp the difficulty of the question. What we require is more personal liberty for healthy, normal and adaptable individuals, and more restrictions for the abnormal, unhealthy and dangerous. The civil law of the future will have to take these facts into consideration, if it wishes to keep level with scientific progress, and prevent the instinct of the people having recourse to lynch law, or retaliation. Meanwhile, attempts have been made to get out of the difficulty by prohibiting the marriage of insane persons or by declaring their marriage null when it has already been consummated; or again, by admitting insanity as a cause for divorce. Such measures are good as makeshifts in a period of transition. They assume that conceptions only occur in marriage, and that marriage necessarily means procreation. But these two suppositions are false, for it is only the pressure of custom and legislation which realizes them in part, especially in Catholic countries. The civil code, in the present state of society, has at least the advantage of making possible the dissolution of monstrous unions, such as those of the absolutely insane or certain psychopaths of the worst kind. Unfortunately, divorce is as a rule only accorded in cases of well-marked mental disorders, while in reality the most atrocious unions are those which are contracted by crazy persons with only diminished responsibility, in whom the public and the law are unable to recognize or understand the existence of a definite mental anomaly. These people most often marry at a time when no one has yet recognized their true mental condition, or foreseen the consequences of their marriage. The unfortunate who finds herself (or himself) bound by such a union is then an object of endless martyrdom. The frequency of mental anomalies causes them to play an immense, and too often unrecognized role, in unhappy marriages. At the request of the mother the tribunal of Bâle recently prohibited the marriage of a young man affected with a slight degree of mental weakness. This judgment was upheld by the Swiss tribunal for the following reasons: "Although capable of work, of earning his living, and of performing his military service, an individual may be an unsuitable subject for marriage. In the interests of family life and the future generation, it is the duty of the State to prevent the marriage of the feeble-minded, in order to avoid the perpetuation of a race of degenerates." I quote this from a journal. We can only congratulate tribunals which have the courage to consider the vital interests of the nation in their judgments. =Right of Succession.=--Although right of succession has no direct bearing on the sexual question, it is indirectly connected with it through its influence on the procreation of children. At the present day the poor have more children than the well-to-do. This is because they have nothing to lose, because coitus is one of their few pleasures, because they are ignorant of the means of preventing conception, and because they hope to profit by their children's labor. People who have some property are, on the contrary, afraid of falling into poverty through the procreation of too many children, and those who possess more are afraid of poverty for their offspring. The latter only desire a few heirs, so that after their death they can leave each a fortune suitable to their social position. In France, especially, well-to-do people often limit their families to two. The parents have the unhappy idea that a certain fortune must be assured to their children to enable them to live in comfort. They do not understand that the necessity for a man to earn his living by work is the chief condition for a healthy existence. Again, among very rich people there is often the fear that a large fortune may lose its power when divided, and thus diminish the influence of the family. It is obvious that great poverty and great wealth constitute two extreme social evils. It is deplorable for a child to grow up with the idea that he will inherit a large fortune, enjoy life without working, and regard poor people more or less as subordinates. But it is still worse for a man to remain all his life an object for exploitation, in spite of the most repugnant and most arduous work, unless his superior faculties and good luck give him the chance of rising. It is also discouraging for a man to be unable by arduous work to obtain anything for himself or his wife and children, and only to work for society, and especially for the interests of capitalists. Human instinct is not sufficiently social to allow of assiduous and hearty work solely in the interests of the community. The egoistic sentiments and family instincts of man are still much too strong. If we take all these facts into consideration, the right of succession becomes very important. It has been attempted to deal with the question by progressive taxes on succession to large fortunes: but this is not enough. I have not the presumption to give a positive opinion on these matters which are not in my province, but I venture to suggest the possibility of greatly restricting the right of succession by postponing the right to the enjoyment of their heritage till the children are of an age when they could earn their own living; say, from twenty-five to twenty-six, so as not to interfere with their higher education. In this way a man would not be deprived of the pleasure of working for himself and his family; and every young man and young woman, being obliged to work at some special subject, would know that they could earn their living after twenty-five or twenty-six, without counting on their heritage. I do not pretend to build a new social system on this idea, for many propositions of the kind have already been made. I only wish to draw attention to one element of the problem, which consists in diminishing the possibility of the exploitation of man by man, without destroying the pleasure for work, at the same time favoring the procreation and education of healthy and capable offspring. This naturally presupposes a new moral and social state, in which family right would be changed and good education organized for all. Even then intelligent men would have the desire to rise above the average and bring up their children with the same object. This is an instinct in mental development which should be carefully cultivated, and not extinguished, by every social organization. In all social systems it must be recognized that certain branches of culture, such as scientific research and art, involve great expense and bring little or no material reward to the scientist or the artist. A richer State ought to provide for these important branches of civilization, which always tend to higher culture. I have already mentioned separation of property and an equable division of the fruits of labor between conjoints as the only just basis in marriage contracts. I repeat here, that true justice can only be established by the recognition of equal legal rights for men and women. PENAL LAW Penal law is the right of punishment. It is based on the ideas of _culpability_ and _expiation_, and these are based on the idea of free-will, which is itself founded on a pure illusion, as we have shown above. This simple reflection is sufficient to show the precarious position of our present penal law. The science of penal law has too long ignored the progress of humanity and of the other sciences. It is affected with incurable marasmus, because its foundations are laid in error. The idea of expiation was naturally developed on the basis of mysticism combined with the right of the stronger, and associated with the sentiment of vengeance natural to the low mentality of our animal ancestors. Among the latter the weaker was punished because he was the weaker: "_Væ victis!_" and order was obtained by force. But the visions of human imagination having urged man to create a god or gods in his own image, he attributed to the divinity the sentiments of anger experienced by man, and pretended that expiation was required for offenses against this or that majesty or human idea, transformed into an offense to the divine majesty. This offense to the divinity was therefore only the nebulous expression of a developing social conscience in man, an obscure mixture of sentiments of wounded sympathy, adulation of the strong and great, and desire for vengeance and expiation. Till then man was accustomed to judge other men according to the right of the stronger, more or less mitigated by sentiments of family and friendship. His terror of natural mysteries--the forest, night, thunder, hurricanes, stars, etc., led him to imagine the intervention of occult powers, and later on of higher powers capable of judging good and evil actions, the ideas of good and evil being formerly very different from what they are at present. The functions of advocates or executors of the divine will were always, however, reserved for privileged men, who gave judgment in His name, either as priests, kings, or later on as judges. We may also note by the way that judgment can be given without belief in free arbitration, as is shown by the Mahometan fatalists and the judgments of Haroun-al-Raschid, for example. In fact, fatalism logically excludes the idea of free-will, for if everything is absolutely predetermined, the thoughts, resolutions and acts of man are also predetermined, which excludes all liberty. =Responsibility.=--I have attempted to show in another work[9] that a rational penal law should in no way concern itself with the question of free arbitration. The fact that we feel free and responsible is not at all sufficient to justify the doctrine of Kant. The question of knowing whether an absolute predestination (fatalism, regulating the universe in advance in all its details) exists or not, is a question of pure metaphysics, the solution of which is quite beyond human comprehension, and need not occupy us here. We must simply depend on the scientific postulate of determinism, _i.e._, on the law of causality applied to the motives of our actions, a law which is very much like that of the conservation of energy, and which admits of divers possibilities for the future, for it does not assume a knowledge of the first cause of the universe nor the will of a divinity. We shall then understand that the complication of our cerebral activities, mnemic and actual, combined with the fact that a great part of them (and consequently of the motives for our actions) remain subconscious, must produce in us the illusion of free-will. On the other hand, we shall find the measure of what we are to understand by relative liberty, in the plastic faculties of the activity of the human brain, which allow it to adapt itself as adequately as possible to the numerous and diverse complications of existence, and especially to social relations between mankind. The most adaptable man is the most free, especially in the sense of active and conscious adaptation. There are also men who adapt themselves passively and are easily molded. This passive plasticity at any rate renders them capable of submitting to everything and only provoking conflict as a last resource. These individuals are no doubt less free, since they obey the impulses of others; nevertheless, their elasticity gives them a certain relative liberty, because they do not feel constraint and easily adapt themselves to laws and other social requirements. But the highest form of liberty, the moral faculty of higher adaptation, is not that of the human fox who exploits others for his own profit, but that of true higher intellects, capable of adapting their activity to the social requirements of humanity. On the contrary, the man who is least free is the one who, dominated by his passions and baser appetites, or by insufficiency of intelligence or will power, is thereby incapable of conducting himself reasonably, gives way to all temptations and impulses, falls into all kinds of snares, cannot keep to any resolution, and is in perpetual conflict with society. What is the use of the theoretical belief in free-will in this case? This man feels subjectively as free, or often more free, than one who is more reasonable and more master of himself, and yet he is a slave! When, dominated by his psychic bonds, he violates the law, he is punished, but he himself resents the punishment as an injustice. The judge who condemns him and imagines he holds the scales of justice in equilibrium, only carries out the principles of an unjust law, a kind of mild retaliation, exacting moderate expiation. Or again, by exercising a right derived from old traditions based on religious ideas, he plays the part of proxy for the Deity and judges in His place. We might even say that a mail is in reality all the more free the better he realizes that he is not so, _i.e._, that his actions depend on the activity of his brain! At any rate he will then be less often deceived and will react in a more plastic manner. =The True Task of Penal Law; Its Traditional Errors in the Sexual Question.=--Penal law has only one thing to do, that is to cut itself free from its roots and transplant itself on a social and scientific soil. There would then be no longer a penal law, but a _law protecting society against dangerous individuals, and a law of administration for persons incapable of conducting themselves_. Its task would be the complement of that of civil law. Henceforth the judge would cease to pass judgment on his neighbor and his neighbor's motives, acting as a proxy for God. He would no longer punish, but would content himself with protecting, restraining and ameliorating. The history of psychiatry and sorcery proves that we are not exaggerating. It is not very long since the insane were regarded, not as persons suffering from disease, but as criminals and sorcerers, and were treated by punishment and exorcism. The ancients, on the contrary, especially certain Greek and Roman physicians (notably _Caelius Aurelianus_) had already recognized that insanity was a disease of the brain, and had distinguished its different forms. Even at the present day, we find among the Catholics and among certain Protestant sects, as among savages, a belief in sorcery, and if this belief got the upper hand, prosecution for sorcery--exorcism and other forms of cruelty--would soon become the fashion. Before the sixteenth century prosecutions for sorcery were universal, and remained very common for a long time afterwards. It is only since the time of the French Revolution that insanity has been recognized as a mental disease. Even in the nineteenth century a German alienist, Heinroth, punished the insane like criminals. The atrocious prejudice of the people against the insane dates from the time of prosecution for sorcery. Even now we are the slaves of a prejudice which holds a legal conviction sufficient to dishonor the prisoner and stain his character for the rest of his days. Hans Leuss' book, _Aus dem Zuchthause_ (From the prison), 1904, is very instructive on this point. Condemned to prison himself, the author makes some wise and dispassionate observations which give food for reflection. I may also quote the words of Doctor Guillaume, who was for a long time superintendent of the penitentiary at Neuchatel, and who is now director of the Swiss federal bureau of statistics at Berne. The question we are dealing with had been treated in a discussion in which I took part, and to which Doctor Guillaume had listened silently. At the conclusion, he said to us: "Gentlemen, in the course of my life I have become acquainted with a large number of convicts, but I have never been able to discover among them more than two classes of individuals; the one class were diseased, and the others ... ah! the others; the more I study their cases and their personality, I ask myself if I should not have done as they did under the same circumstances!" It is unnecessary to say that Doctor Guillaume did not mean to establish two clearly marked classes, for most criminals represent a mixture of both; but his main idea gives a good idea of the question of penal law. How sexual questions lead to conflicts with penal law, how penal law judges them, and how it ought to judge them after what we have just said, I can only refer to what I have said concerning civil law. Our present penal law is aware of singular sexual crimes and often punishes them from curious motives. When a poor imbecile, ridiculed by women and overcome by his sexual appetite, copulates with a cow, the latter is not injured in any way; neither is the owner. Moreover, the question of property does not trouble the judge, for he punishes sodomy even when the culprit owns the animal. How does the law obtain the right to punish an act which does no harm to any one, nor to society, nor even to an animal? It is evidently a vestige of religious mysticism, something like punishment for sinning against the Holy Ghost. The sins of Sodom and Gomorrah, they say, caused the wrath of God, who destroyed these towns for this reason. According to the legend, sodomy was a vice of the inhabitants; is this why it is punished at the present day? But the masturbation of Onan, according to the Bible, also caused the wrath of God; why then do not our present laws institute punishment for those who practice it? In many of the Swiss cantons and in Germany, sexual connection between men is prosecuted by law. The German legislators have even recently discussed the question whether punishment should be enforced only when the penis of one man is introduced into the anus of the other (pederasty), or whether indecent contact and mutual onanism are sufficient to justify punishment. Our penal law is thus concerned with the question whether it should punish or not, according as this or that mucous membrane or part of the skin is used for the satisfaction of a morbid sexual appetite! These are truly singular points for a legislator to decide, compelled, in spite of his incompetence, to play the part of physiologist, anatomist and psychologist! If I am correctly informed, the German legislation is inconsistent in punishing sexual intercourse between two men, but not between two women. These examples suffice to show what blind-alleys a penal law leads to, the basis of which is vicious and which is guided by the traditions of mysticism. Quite recently, in the Swiss journal of penal law, a jurist seriously upheld the necessity for the conception of a crime against religion! Ideas of this kind would lead us to punish suicide, like the English. We will now proceed to analyze the facts from the point of view of their true social value. =Limits of Penal Law in the Sexual Domain.=--If we would avoid injustice and ridiculous contradictions, we should keep to the principle that penal justice has only the right to intervene in cases where individuals or society are injured, or run the risk of being injured. It is also necessary to examine, in each case, whether the person who has committed the offense was not irresponsible and affected with mental disease at the time; or whether his responsibility was not diminished, _i.e._, whether he was not seriously abnormal without being quite insane. The conception of responsibility, necessarily relative, should be understood in the sense of relative liberty, which we have defined above. According to the result of the inquiry (culpability being proved) the judge will have to decide how society can be best protected against the repetition of such acts, and how the culprit may be most easily improved, provided he is capable of improvement. If, for example, the culprit is an inebriate, his detention in a home for inebriates will protect society and benefit the individual much better than all the fines and imprisonments at present in force. If he is an incorrigible recidivist, incapable of resisting his criminal impulses, the law should keep him under observation in a safe place, or deprive him only of certain dangerous liberties. It is not so difficult to decide these questions as the public imagines. The antecedents of the criminal, his previous convictions, and a careful study of his psychology will nearly always lead to a clear diagnosis and prognosis. In this case a mutual understanding between psychiatrists and jurists will produce excellent results. It is needless to say that if it is only a case of transient cerebral obnubilation, such as sunstroke or somnambulism, etc., the culprit should be acquitted. =Rape, etc.=--Normal coitus may render a penal action legitimate when it is obtained by force or stratagem (rape, abuse of a feeble-minded or hypnotized person, etc.). It is evident that measures of protection against such acts are urgent, and that persons abused in this way should have the right to heavy indemnities. What we require is not so much extenuation of penalty for the culprit as greater protection for his victims. In cases of rape, when the woman becomes pregnant against her will, I am of opinion that artificial abortion should be allowed by law as an exceptional measure. We cannot expect a woman to have a child imposed upon her by a man's violence, especially when she is unmarried, and oblige her to bring it up, from the simple fact that she conceived it. It should be the same in cases of abduction of female minors. When, on the contrary, a male minor seduced by an adult woman, makes her pregnant, it is the woman only who is responsible for the maintenance of her child, and there are no reasons to accord her the right of abortion, for it is she who desired the sexual act. The close bonds which exist between the child and its mother justify such legal dispositions. With regard to civil laws, we have mentioned the case of venereal infection after coitus. In this case civil indemnity would be most equitable. A penal action could only be based on prosecution by the injured party, unless it was a question of directly criminal intent--infection for vengeance, for example. =Incest.=--Under the heading of _consanguineous marriages_, we have seen to what extent the conception of incest should be limited, in respect to civil law. The grave cases of incest are those between parents and children. Their normal causes are mental anomalies, alcoholism, proletarian promiscuity, or isolation of a family in some remote place. Incest is common, in Switzerland especially, among the inhabitants of isolated mountain chalets. I will give a few typical and genuine examples of incest giving rise to penal actions: (1). A drunken and brutal husband persecuted his wife with excessive coitus. The latter then gave him her own daughter to satisfy his violence. (2). An inebriate woman induced her own son, aged seventeen, to have intercourse with her. Infuriated at the idea that his mother had made him her lover, he murdered her one day when he was drunk. Condemned as a parricide, this young man conducted himself in prison in a model manner. Alcohol, combined with his incestuous seduction, had made him the murderer of his mother. (3). In a family composed exclusively of imbeciles and psychopaths, some of whom were put under my care for treatment, incest was practiced among nearly all of them; between father and daughters; between mother and sons; and between brothers and sisters. The last case, and many others, show that incest is not the cause but the effect of mental disorders. This does not mean that the offspring of such unions are not slightly tainted by the mere fact of such concentrated incest, but these cases are comparatively so rare that they do not contribute to any appreciable extent, as incest, in causing degeneration of the race; the factor which causes degeneration is here mental disease, which arises from other hereditary causes, chiefly of blastophthoric origin. From what we have said it results that a penal action for incest should only take place in the case of minors or insane persons, abuse of strength or power, or rape. The measures of civil law should suffice to reduce other cases of incest to a minimum. The disgust which the generality of men feel for sexual union between brothers and sisters, and especially between parents and children, is the best protection against incest. The elimination of alcoholism, the superintendence of the insane, and the improvement of our social organization are much more likely than penal laws to lead to the gradual disappearance of incest. =Assaults on Minors.=--All assaults on minors should naturally be prosecuted. But prosecution should take a different form according as the culprit is affected with a pathological perverse disposition, or whether it is simply a question of abuse of confidence committed by a normal man. A master who, having no sexual anomaly, commits assaults on young girls, his pupils, should be deprived of the right of teaching in girls' schools, for it is only there that he is dangerous. If, on the other hand, he is affected with perversion (pederasty, etc.), further measures for protection should be taken against him; according to the circumstances. =Sexual Perversions.=--When we pass, on to sexual perversions, the inconsequences and mysticism of our present penal law become still more apparent. This code often prosecutes and punishes sexual actions which do no harm to any one, or which two persons practice of their own accord. Such cases may be suitable for moral or medical treatment, but should never justify a penal prosecution. This applies to all the manipulations of onanism, pederasty, masochism, fetichism, etc., which take place between adults by mutual agreement. What is the use of prosecuting inverts? It is a fortunate thing for society that these psyhcopaths are contented with their mutual sexual intercourse, the result of which is sterile and therefore does no harm to posterity. The real crime is the marriage of an invert to an individual of the opposite sex, and yet this crime is sanctioned by the law! It is a crime against the normal conjoint and against the children who may result from such an unhappy union. By severely punishing homosexual intercourse, the penal laws of many countries provoke the lowest form of blackmail, as Krafft-Ebing, Moll, Hirschfeld and others have proved by numerous examples, and as I have myself confirmed among many of my patients. It is quite another thing with abnormal or perverse forms of the sexual appetite, which can only be satisfied against the will of their object, or by injuring it more or less severely. Here it is the duty of the law to organize energetic measures of protection; not with a view to punish the pervert, who is a diseased person, but to protect his victims in time. We will first deal with _sadism_; secondly with the violation of children. Here a very delicate question arises. In the case of such terrible sexual appetites we should not wait for victims before taking action. On the other hand, we cannot punish a man, nor even take administrative measures against him, simply from the fact that he possesses a dangerous appetite, especially if he is in other respects well-behaved and conscientious, and strives with all his might against his perversion. I have treated a patient who suffered from a terrible pathological appetite of this kind. He was a highly moral man who never harmed any one, but was in a state of despair over his affliction, which he resisted with all his power, seeking relief in masturbation when his passion became too violent. In such cases, the moral sentiments of an individual offer sufficient social protection, and it is neither the right nor the duty of the physician to denounce him. But he should advise the patient to retire to an asylum to avoid committing a crime, if he feels that he cannot restrain his passions. It is very rare for such cases to come to the knowledge of the public, for these patients prefer to suffer in silence or to commit suicide; but they are none the less instructive and characteristic. At other times dangerous perversions are discovered by chance, the pervert, instead of resisting his passion, seeking opportunities to satisfy it without discovery. In such cases strong measures should be enforced. Unfortunately, sadists are very well aware of the dangers they run, and know better than any other criminals how to commit their crimes without being discovered. As soon as the perpetrator of a sadic crime is discovered, or simply an attempt at sadism, he should be arrested and placed where he can do no harm. The question of castration arises here: but we do not know yet how far this protects the sadist and his victim against recurrence. If this operation proves efficacious it should never be neglected. The _exhibitionists_ present great difficulty. They are not dangerous, since they touch nobody. Their "victims," if they can be called so, are girls or women before whom they expose their genital organs and masturbate. No doubt modesty may be much offended by such acts, especially in young girls and children; disgust and fear may also harm them; but I think the law is too severe in these cases, for there is no question of an injury which is dangerous in itself. I have known little girls who have been frightened several times by exhibitionists, but I have never known them injured by the disgust which they experienced. The affair is too ridiculous and too ugly. It would be sufficient to send exhibitionists to an asylum for short periods, unless extreme weakness on their part necessitated prolonged detention. Simple _necrophilia_ should be treated in the same way by penal law. But this perversion is more dangerous on account of its relationship with sadism. There are some sadists who are only necrophiliacs for fear of becoming assassins. Such individuals are very dangerous and should be kept in confinement. The _fetichists_ are, on the contrary, generally very innocent. At the most they might be prosecuted for theft when they take away their fetiches. One of their worst misdemeanors is that of cutting off the hair of young girls. =Concubinage. Prostitution. Proxenetism. White Slavery.=--We have already seen that concubinage should never be punishable in itself, although it is so in some countries. We shall not again return to the question whether prostitution should be the object of judicial and penal actions. Proxenetism and white slavery, on the contrary, cause grave injury to the rights of many individuals and should be made criminal offenses; for they are crimes against society and the individual, and committed for lucre. It cannot be legal to do commerce with the body of one's neighbor: this is a crime which is closely related to slavery and similar abuses. (Vide Chapter X.) The law should punish all public solicitation, obscenity or sexual brutality, but the punishment should take a milder form. The sexual act and everything connected with it should be absolutely free, but a man has no right to provoke or annoy his neighbor by indecent sexual invitations if the latter does not wish to respond to them. It is, however, extremely difficult to fix the limits of what is licit, for prudery may also go too far and regard the most innocent allusions as provocations. It is absolutely necessary to leave a margin for normal sexual invitations. All that is required is that they should not overstep the limits of recognized propriety, so long as there is not mutual agreement between the two parties. (Vide _Flirtation_, Chapter IV.) =Lewdness. Pornography.=--The question naturally presents itself of knowing how far it is permitted to proceed publicly with a mutual agreement without causing offense or injury to other parties. On the whole, our customs are free enough in this respect, and a greater liberty in public flirtation would be inconvenient. For instance, lewd exhibitions, coitus, etc., could not be allowed in public places. Children especially should be protected against such excitations of the sexual appetite, and it is necessary to fix a legal distinction between what is offensive and what is not offensive to public propriety or modesty. Simple police regulations are sufficient for this purpose, but they are very necessary to protect women and children, and occasionally young men, against importunities or sexual obsessions, against sexual solicitation, or even against assault or other offenses, such as incitement to masturbation, obscene words and gestures, etc. It is, no doubt, very difficult to define the limits. Our modern customs have left a large margin for pornography, which they treat like a spoiled child. The most dangerous form, however, is not that which flaunts itself in shop windows, by advertisements and placards, in public kiosks and dancing rooms; but the refined and æsthetic pornography which appears in the form of elegant engravings, erotic novels and dramas, under the cloak of art and even under that of morality. Unfortunately, the public is a very bad judge of these things. Certain books have openly and fearlessly described the sexual vices of our time--for example, Zola's novels and the dramas of Brieux--and these have been stigmatized as pornographic. As a matter of fact their authors in no way merit such a reproach. Such works in no way encourage immorality; on the contrary, they inspire disgust and a healthy and holy terror at the perversity of our sexual customs. No doubt such works may have an erotic action on ignorant and low-minded persons. The Tyrolean peasants, in their moral indignation, have been known to destroy the marble statues of women erected in public places. Such acts serve no purpose, for prudery will never rid the world of eroticism; it will only increase it by leading to hypocrisy. We have something better to do than persecute and insult true art and men of talent or genius who expose our social perversions. Pornography is quite another thing. It is not contented with representing the æsthetic, licit, and normal side of natural eroticism. It does not depict sexual vice so as to emphasize its ugliness and its tragic consequences, but to glorify it. Whether it is represented as brazen nudity unadorned, or enveloped in a transparent veil which reveals everything it pretends to hide; whether it reels in bacchanalian orgies; whether it appears in brilliant fancy dress illuminated by electric lights, or in the discreet light of a fashionable boudoir; whether it is clearly revealed or equivocal, perverted in one way or depraved in another; in all its forms its aim is to tickle, to excite, to seduce, to allure, by arousing lewdness and inflaming its lowest passions. The pornographic dishes are often served up with a sentimental and moral sauce which naturally does not tend to hide the flavor of the meat--for then all its charm would be gone--on the contrary it increases its spicy quality by means of contrast, at the same time making the product more marketable; this hypocritical disguise giving it a certain varnish of propriety. The trick of clothing pornographic articles with the mantle of virtue may deceive the artless, and give the less artless excuse for buying them without putting themselves to any inconvenience. In such cases it is extremely difficult to act without injustice and without doing injury to art and science by vexatious measures. This requires much tact and rare perspicacity. =Other Sexual Misdemeanors.=--Many sexual assaults are committed on the insane and feeble-minded, in the hope that they will not defend themselves and denounce the criminal. We have mentioned the case of inverts who become attendants in lunatic asylums in order to satisfy their appetites. Such crimes should be classed with those committed against minors. In the first place it is necessary to take into account the special dangers they present, and in the second place, the personality of the criminal, his capacity for repentance, improvement, and self-control. =Artificial Abortion.=--It is a difficult question to decide whether a woman should have the right to dispose of the embryo she carries in her womb, and the duties of society with regard to this question. It is certainly the duty of society to protect the child as soon as it is born. In this case the laws cannot be too severe in protecting the child from unnatural parents, or from the "baby farmers," whose business is to get rid of the infants by starving them or exposing them to disease. It is the same with analogous abuses which we have mentioned with regard to civil law. These crimes or misdemeanors very often result as much from the economic organization of our society, as from want of protection for infancy and girl-mothers, as well as from the shame with which the latter are branded by our hypocritical customs. The question becomes more difficult with regard to the embryo _before birth_. Should the law punish artificial abortion? Opinions on this question vary. I have already said that in cases of rape, and forced pregnancy in general, the right to artificial abortion should be conceded to the woman. On the other hand, I think it should be prohibited on principle when the fecundating coitus has been voluntary on both sides, and when there is no medical reason for such a measure. In principle, the human embryo, when once conceived, should have the right to live. Birth is only an episode in its life. This generally takes place at the end of the ninth lunar month of pregnancy, but a child born at the seventh month is often viable. It is, therefore, arbitrary not to recognize the right of the embryo to live. On the contrary, the right that a woman has to dispose of her body would seem to outweigh this, when conception has been imposed on her by stratagem or violence. In fact, the right of the embryo to life should depend on the wish of the bearers of each of the two germs by which it is formed, at the moment of conception. On the other hand, numerous exceptions to the above rule should be allowed, and doctors should not be too severe, for it would be for them to decide in most cases whether artificial abortion was licit or not. Some pregnancies are a veritable misfortune for the parents and offspring, when the bodily and mental health of the mother or child, or both of them, is in danger. When a lunatic or an idiot, married or not, makes a woman pregnant, artificial abortion should be allowed; also in all cases when an insane or epileptic woman becomes pregnant. An analogous case is that where a drunkard renders his wife pregnant against her will, especially when he is intoxicated at the moment; for the offspring runs a great risk of blastophthoria. It is needless to say that abortion should be permitted whenever pregnancy seriously endangers the life or health of the mother, or when a grave disease in the mother condemns the child to become an invalid. On the other hand, such indications should not be acted on too lightly; a rational limit is here a matter of practice and common sense, combined with medical science. =The Right to Live of Monsters, Idiots, or the Deformed.=--The preceding remarks naturally lead us to the question whether children who are born invalids, deformed, or idiots, etc., should be necessarily condemned to live by the law, and whether special dispositions should not be made for such cases. The obligation to preserve, often by means of all the resources of medical science, miserable creatures, born as cretins or idiots; children with hydrocephalus or microcephalus, without eyes or ears, or with atrophied genital organs, etc., is an atrocity sanctioned by the law. Would it not be better to allow these miserable beings to be suppressed by means of a painless narcosis, with the consent of the parents and after an expert medical opinion, instead of condemning them by law to a life of misery? Science has proved that every congenital malformation of the brain is as incurable as that of any other organ. Here again our legislation is fettered by ignorance and religious dogma. On one hand, immense armies are organized to kill the most healthy men by thousands and tens of thousands, and many more thousands are abandoned to famine, prostitution, alcoholism and exploitation; on the other hand, medicine is expected to employ its whole art and efforts in prolonging life as long as possible and thus martyrizing miserable human wretches, degenerate in body and mind or both, often when they cry out for death! Large asylums are built for idiots, and there is much joy when after many years of persevering effort some devoted person succeeds in teaching these beings, whose mentality is far inferior to that of a monkey, to repeat a few words like a parrot, to scribble some words on paper, or to repeat a prayer mechanically with their eyes turned toward heaven! It is difficult to compare these two facts without feeling the bitter irony of what are euphemistically called our hereditary customs. In truth, the nurses and teachers who devote themselves to the education of cretins and idiots would do better to occupy themselves in some manual work; or even leave the idiots to die, and themselves procreate healthy and capable children in their place! But this question does not properly belong to our subject. =The Rights of the Embryo.=--A distinction is generally made between artificial abortion practiced in the first months of pregnancy and that induced in the later months. When the child is born viable, the term premature labor is used. When this is induced with the object of getting rid of the child the penalty is much more severe than for abortion, for it is regarded almost as infanticide. For this reason, and owing to the difficulty of the whole question, a mother should never be given the right to destroy the embryo or child in her womb, excepting in cases where pregnancy has been forced upon her. Each case should be submitted to a medical examination, and a doctor's certificate should be required. This is all the more indicated since our present knowledge makes it easy to prevent pregnancy by anticonceptional measures. Society is, therefore, entitled to demand that a mother who has voluntarily conceived a child has no right to interrupt its development, _i.e._, to kill it. If, as we hope, we shall eventually obtain more extended rights for women and greater sexual liberty in general, even in marriage, the reasons justifying artificial abortion, apart from medical or hygienic measures, will become more and more rare. The stigma of shame which is branded on illegitimate maternity unfortunately justifies many cases of abortion and even infanticide. Things ought to change in this respect, and in the future no pregnancy ought to be a source of shame for any healthy woman whatever, nor furnish the least motive for dissimulation. If the objection is raised that I am inconsistent; that every man, and consequently every woman, should have the power to dispose of their own body on every occasion, and that penal law should therefore take no cognizance of artificial abortion, I reply that this does not apply to the case in point; for it is here a question, not of one body, but of two or more (in the case of twins). From the moment of conception the embryo acquires a social right which merits all the more protection, the more its possessor is incapable of looking after it. =Adultery.=--Adultery, which even at the present day is often considered as a crime or misdemeanor, should be simply regarded as a reason for divorce. We have already treated the question with regard to civil law, and have shown the futility of trying to obtain fidelity by law. In my opinion, the misdemeanor of adultery should be entirely abolished from penal law. When it is complicated by fraud or other crimes, it is the latter only which are concerned. =Human Selection.=--The indirect danger to which children of bad heredity are exposed constitutes a grave social evil. At present, penal law is absolutely impotent in this matter. We have seen what civil law might perhaps effect, and what is already done in some countries. In another chapter we shall discuss much more appropriate measures for improvement in this domain. We have already mentioned castration and certain cases in which it might be practiced. These cases will always be very limited, and it is on the basis of social morality and hygiene of the race that the question of conception should be regulated in a rational and voluntary manner. We shall obtain much more in this way than by legal measures, which are always lame because they interfere with individual liberty. We must never forget that the law is only a necessary evil, and often a superfluous one. In conclusion, I may remark that penal law should be combined, like civil law, with administrative measures, to protect both the individual and society in sexual matters, at the same time watching over the interests of future generations. But it should only do this as far as the weakness and eroticism of men hinder a similar or better result from being obtained by moral education, combined with rational intellectual instruction. FOOTNOTES: [8] Vide DELBRÜCK, _Gerichtliche Psychopathologie_ (Job. Ambr. Barth, Leipzig, 1897).--DELBRÜCK, _Die Pathologische Lüge und der pyschisch abnorme Schwindler_ (Ferdinand Enke, Stuttgart, 1891).--FOREL, _Crime et anomalies mentales constitutionnelles_ (GENÈVE, 1902, H. Kündig,).--KÖLLE, _Gerichtlich psychiatrische Gutachten_ (from the clinic of Professor Forel at Zurich), Stuttgart, 1894, Ferdinande Enke.--VON LISZT, Schutz der Gesellschaft gegen Gemeingefährliche (_Monatsschrift für Kriminalpsychologie und Strafrechtsreform_).--FOREL, Die verminderte Zurechnungsfähigkeit (_die Zukunft_, 1899, no 15), etc. [9] "Die Zwiechungsfähigkeit des normalen Menschen," Munich. APPENDIX TO CHAPTER XIII A MEDICO-LEGAL CASE The following case occurred in 1904 in the Canton of St. Gall, in Switzerland, and confirms my opinion: Frieda Keller, born in 1879, was the daughter of honest parents. Her mother was mild-mannered and sensible, her father loyal, but harsh and sometimes violent. Frieda was the fifth of eleven brothers and sisters. She was a model scholar. At the age of four years she had meningitis which left her with frequent headaches. In 1896-97 she learnt dressmaking and helped at home in the household work. When she was free, she did embroidery to help her family. Afterwards she obtained a situation in a dressmaker's shop at St. Gall, where she got sixty francs a month. To increase her income she worked on Sundays as a waitress at the Café de la Poste. The proprietor, a married man, began to persecute her with his affections, which she had great difficulty in avoiding. She then entered another shop where she got eighty francs a month. One day, in 1898, when she was then nineteen, the proprietor of the café succeeded in seducing her, and on May 27, 1899, she gave birth to a boy at the Maternity of St. Gall. She had confessed her misfortune to her parents, and her mother had pity on her. Her mother had also been seduced and rendered pregnant at the age of fifteen; abandoned by her seducer she committed infanticide, and was sentenced to six years' imprisonment; as she had always been well-behaved, the tribunal had recognized that she acted "less by moral depravity than by false sentiment of honor." Frieda, who was fond of her mother, knew nothing of this history. The father was very hard toward his daughter and refused her all help and pity. Twelve days after her confinement she took her child to the Foundling Hospital at St. Gall. Her seducer then promised to maintain the child, but never paid more than eighty francs. After a time he left the town and was seen no more. The circumstances under which Frieda became pregnant were not fully inquired into and her seducer was ignored. It was not absolutely a case of rape, but of taking a poor, weak and timid girl by surprise. Frieda Keller felt nothing but disgust for her seducer. Later on the latter would no doubt deny the fact of his paternity; but he had tacitly admitted this by the payment of eighty francs. Frieda had to pay five francs a week to the Foundling Hospital and also thirty-four francs to her married sister. In 1901 her father died, and in 1903 her mother. Frieda inherited 2,471 francs from her father, but this sum was tied up in her brother's business and he never sent her the interest. It is characteristic of her mentality that she never attempted to exact it. Then began for this unfortunate young girl a life of struggle and despair. She was possessed of two ideas. On the one hand she could no longer maintain her child, and on the other hand would not admit anything from shame. They would not keep the child in the hospital after Easter, 1904, when it would reach the maximum age of five years. What was she to do? Frieda Keller was then evidently in a pathological state of mind, which was upheld by her defender, Doctor Janggen. She wished to keep her secret and provide for the maintenance of the child; but she took no steps in this direction. She did not seek for cheap lodgings, not for a rise of salary, nor even for the money illegally detained by her brother for his own profit. She never spoke to her married sister, nor to any one, of her desperate position. The father of her child had disappeared and she never gave information against him for fear of divulging her secret. Moreover, the law at St. Gall only admitted the charge of paternity against unmarried men! She found no practical way of disposing of her child. After Easter, 1904, when the child was discharged from the hospital, she was haunted by a single idea--to get rid of the child. She struggled for a long time against this obsession, but in vain, and it finally became a resolution. Although she was fond of her sister's children, she did not love her own. She rarely visited her child and appeared to take no notice of it. This woman who was well-disposed toward every other creature, who was of exemplary conduct and would not hurt a fly, never even spoke of her own child. On April 9th she wrote to the hospital that she would come and fetch the child. A few days before this she took a long walk in the woods; the next day she wept at home, while looking for some string. Alone with her despair, she had definitely made her terrible resolution. She said afterwards, at the assizes: "I could not free myself from the feeling that I must get rid of the child." She then went to the hospital, after having bought new clothes for the child, and told the authorities that an aunt of hers at Munich would take care of the child. She then took the child to the woods. Having found a lonely spot she sat down for a long time while the child played in the wood. For some time she had not the courage to do the deed, but at last an irresistible force, as she said, urged her to do it. With her hands and shoes she dug a grave, then strangled the child with string, with such force that it was difficult to untie the knot on the dead body afterwards. She knelt for some time by the child till it ceased to give any signs of life, then buried it, and returned home restraining her tears with difficulty. On the 1st of June she wrote to the hospital that the child had arrived at Munich. On the 7th of June the body was exposed by rain and was discovered by some Italians. On the 14th of June she was arrested. During the trial she declared that her action had been the result of her inability to maintain the child, and the necessity of keeping her secret. This secret was the shame and dishonor of involuntary maternity and illegitimate birth. All the witnesses spoke in favor of Frieda Keller and gave evidence that she was well-mannered, intelligent, hard-working, economical, of exemplary conduct and loving her sister's children. She did not deny the premeditation of her crime, and in no way sought to diminish her responsibility. According to the law of St. Gall, such cases are punishable with death; but Frieda Keller's sentence was commuted to penal servitude for life. Such are the facts of this case taken from the official report, and from an extract published by M. de Morsier in the _Signal de Genève_. We are compelled to exclaim with M. de Morsier that a legislation which, in such a case, condemns to death one who can justly be called a victim, while leaving unpunished the real culprit, is calculated to destroy all belief in justice in a democracy which calls itself Christian. It is a justice of barbarians, a disgrace to the twentieth century. The tribunal and the juries have enforced to the letter an article in the Code, and this is called justice! We may well say: _Fiat justitia, pereat mundus._ Frieda Keller was no doubt in an abnormal condition of mind; she probably suffered from the influence of auto-suggestion which became an obsession. Such cases are not uncommon. This is clearly shown by the absurdity of her manner of acting, which was both useless and pernicious, while she might easily have got out of her difficulty in other ways. If our judges and juries had a little more knowledge of human psychology and a little less of the Code in their heads, they would have had some doubts on the mental integrity of the accused, and would have ordered an expert examination by a mental specialist. But, apart from this point, I put the question--can we expect from a woman, maternal sentiments for a child resulting from sexual surprise bordering on rape? In the preceding chapter I have demanded the right of artificial abortion to women rendered pregnant by rape or against their will, and I think the case of Frieda Keller supports my contention. I do not intend to justify the assassination of a child already five years of age; but I wish to point out that the absence of maternal love is quite natural in such a case. It is precisely the instinctive aversion of Frieda Keller for her child, otherwise inexplicable, which shows most clearly that it was a case of imposed maternity, or sexual satisfaction on the part of the father alone. The tragic case of this unfortunate woman well illustrates the brutality and hypocrisy of our customs regarding the sexual question, and shows what terror, shame, torment and despair may be caused by the point of view of the so-called rules of morality. In the presence of these facts I do not think I can be accused of exaggeration: it is only parchment-hearted jurists and government officials who can remain indifferent in such cases. Penal servitude for life for the poor victim of such cruelty is a kind of "mercy" which rather resembles bitter irony. The law of St. Gall can do only one thing to repair the evil; that is to change its laws and liberate the victim as soon as possible. In ordinary infanticide the true assassin is not usually the mother who kills her child, but rather the father who abandons the woman he has made pregnant, and disowns the result of his temporary passion. In the case of Frieda Keller, maternal heredity, the results of meningitis, stupidity, irreflection, want, shame, fear, a pathological obsession, and finally the unworthy conduct of the father, all combined in making this unfortunate girl a victim rather than a criminal. Her child was not only a source of great anxiety but also an object of instinctive repulsion. How is it that such a brave and industrious woman can feel repulsion toward her own child? If the judges had asked themselves this question and had replied to it without prejudice, forgetting for the moment their Code and prejudices, they would not have had the courage to condemn the woman to death, nor even to condemn her at all; for their conscience would have clearly shown them the true culprits--masculine brutality, our hypocritical sexual customs, and the unjust laws inspiring terror in a feeble brain. When every pregnancy and every birth are looked upon by human society with honor and respect, when every mother is protected by law and assisted in the education of her children, then only will society have the right to judge severely of infanticide.