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.