"At the age of 14 I was a chorister at ---- church, whose choirmaster, an Englishman named M.W.M., was an accomplished man, seemingly a perfect gentleman, and a devout churchman. He never seemed to care for the society of ladies, never mingled much with the men, but sought companionship with the choristers of my age. He frequently visited at the homes of his favorites, to tea, and when he asked the parents' consent for George's or Frank's company on an excursion or to the theater, and then to spend the night with him, such request was invariably granted. I shall ever remember my first night with him; he began by fondling and caressing me, quieting my alarm by assurances of not hurting me, and after invoking me to secrecy and with promises of many future pleasures, I consented to his desire or passion, which he seemed to satisfy by an attempt at _fellatio_. Was this depravity? I would say 'No!' after reading his subsequent confession, found in his room after his death by suicide. This was brought about by his too intimate relations with the rector's son who contracted St. Vitus's dance and in the delirium of a fever that followed from nervous exhaustion told of him and his doings. A thorough investigation took place and M. fled, a broken-hearted and disgraced man, who, as the result of remorse, relentless persecution, and exposure through several years, ended his life by drowning himself. In his confession he spoke of having been raised under a very strong moral restraint and having lived an exemplary life, with the exception of this strange desire that his will-power could not control.
"The next case is that of C.H. He came of an old family of brainy men who have, and do yet, occupy prominent places in the pulpit and the bar, and was himself a gifted young attorney. I knew him intimately, as for six years he was a close neighbor and we were associated in lodge-work. He was an effeminate little fellow: height, 5 feet 2 inches; weight, 105 pounds; very near-sighted; and he had a light voice, not a treble or falsetto, but still a voice that detracted materially from the beautiful rhetoric that flowed from his lips. He had served his country as its representative in the Legislature and had received the nomination for senator, over a hard-fought political battle. The last canvass and speeches were made at a town which was, in consequence, crowded. That night H. had to occupy a room with a stranger, named E., a travelling salesman. There were two beds in this room. Mr. E., on the following day told several people that during the night he was awakened by H., who had come over to his bed and had his mouth on his 'person,' and that he had threatened to kick him out of the room, but that H. pleaded with him and fell on his knees and swore that he had been overcome by a passion that he had heretofore controlled, and begged of him not to expose him. These facts coming to the notice of his opponents, within twenty-four hours, they hastened to take advantage of it by placarding H. as a second Oscar Wilde, and stating the facts as far as decency and the law allowed. H.'s friends came to him and gave him one of two alternatives: if guilty, either to kill himself or leave that section forever; if not guilty, to slay his traducer, E.H. affirmed his innocence, and in company with two friends, C. and J., took the train for ----. Learning there that E. was at a town twelve miles east, they hired a fast livery and drove overland. They found E. at the station, awaiting the arrival of a train. H., with a pistol, strode forward and in his excitement said: 'You exposed me, did you?' Being near-sighted, his aim proved wide of the mark. E. sprang forward and grappled with H. for possession of the pistol, and was fired upon by C. and J., who shot him in the back. He expired in a few minutes, his last statement being to the effect that H. was guilty as accused. H., C., and J. were sentenced to the penitentiary for life. During my six years' acquaintance with H. I knew of nothing derogatory to his character, nor has anyone ever come forward to say that on any other occasion he ever displayed this weakness. I know his early life had a pure atmosphere, as he was an only child and the idol of both his parents, who builded high their hopes of his future success, and who survive this disgrace, but are broken-hearted.
"The next case is that of the Rev. T.W., professor at the University of ----. Mr. W. is a scholarly gentleman, affable in his address, eloquent in his oratory, and a fine classical scholar. He was exposed by some of his students, who, to use a slang phrase, accused him of being a 'head-worker.' At his examination by the faculty he confessed his weakness, and said he could not control his unholy passion. His resignation was accepted both by the church and the college, and he left.
"I know of a few other cases that have their peculiar traits, and am confident that these persons did not become possessed of this habit through the so-called 'indiscretions of youth,' as in every case their early life was freer from contamination than that of 90 per cent. of the boys who, on reaching man's estate, have, like myself, no desire to deviate from the old-fashioned way formulated by our ancient sire, Adam."
It can scarcely be said that the consciousness of this attitude of society is favorable to the invert's attainment of a fairly sane and well-balanced state of mind. This is, indeed, one of the great difficulties in his way, and often causes him to waver between extremes of melancholia and egotistic exaltation. We regard all homosexuality with absolute and unmitigated disgust. We have been taught to venerate Alexander the Great, Epaminondas, Socrates, and other antique heroes; but they are safely buried in the remote past, and do not affect our scorn of homosexuality in the present.
It was in the fourth century, at Rome, that the strong modern opposition to homosexuality was first clearly formulated in law.[265] The Roman race had long been decaying; sexual perversions of all kinds flourished; the population was dwindling. At the same time, Christianity, with its Judaic-Pauline antagonism to homosexuality, was rapidly spreading. The statesmen of the day, anxious to quicken the failing pulses of national life, utilized this powerful Christian feeling. Constantine, Theodosius, and Valentinian all passed laws against homosexuality, the last, at all events, ordaining as penalty the _vindices flammæ_; but their enactments do not seem to have been strictly carried out. In the year 538, Justinian, professing terror of certain famines, earthquakes, and pestilences in which he saw the mysterious "recompense which was meet" prophesied by St. Paul,[266] issued his edict condemning unnatural offenders to the sword, "lest as the result of these impious acts" (as the preamble to his Novella 77 has it) "whole cities should perish, together with their inhabitants; for we are taught by Holy Scripture that through these acts cities have perished with the men in them."[267] This edict (which Justinian followed up by a fresh ordinance to the same effect) constituted the foundation of legal enactment and social opinion concerning the matter in Europe for thirteen hundred years.[268] In France the _vindices flammæ_ survived to the last; St. Louis had handed over these sacrilegious offenders to the Church to be burned; in 1750 two pederasts were burned in the Place de Grève, and only a few years before the Revolution a Capuchin monk named Pascal was also burned.
After the Revolution, however, began a new movement, which has continued slowly and steadily ever since, though it still divides European nations into two groups. Justinian, Charlemagne, and St. Louis had insisted on the sin and sacrilege of sodomy as the ground for its punishment.[269] It was doubtless largely as a religious offense that the _Code Napoléon_ omitted to punish it. The French law makes a clear and logical distinction between crime on the one hand, vice and irreligion on the other, only concerning itself with the former. Homosexual practices in private, between two consenting adult parties, whether men or women, are absolutely unpunished by the _Code Napoléon_ and by French law of today. Only under three conditions does the homosexual act come under the cognizance of the law as a crime: (1) when there is _outrage public à la pudeur_,--i.e., when the act is performed in public or with a possibility of witnesses; (2) when there is violence or absence of consent, in whatever degree the act may have been consummated; (3) when one of the parties is under age, or unable to give valid consent; in some cases it appears possible to apply Article 334 of the penal code, directed against habitual excitation to debauch of young persons of either sex under the age of 21.
This method of dealing with unnatural offenses has spread widely, at first because of the political influence of France, and more recently because such an attitude has commended itself on its merits. In Belgium the law is similar to that of the _Code Napoléon_, as it is also in Italy, Spain, Portugal, Roumania, Japan, and numerous South American lands. In Switzerland the law is a little vague and varies slightly in the different cantons, but it is not severe; in Geneva and some other cantons there is no penalty; the general tendency is to inflict brief imprisonment when serious complaints have been lodged, and cases can sometimes be settled privately by the magistrate.
The only large European countries in which homosexuality _per se_ remains a penal offense appear to be Germany, Austria, Russia, and England. In several of the German States, such as Bavaria and Hanover, simple homosexuality formerly went unpunished, but when the laws of Prussia were in 1871 applied to the new German Empire this ceased to be the case, and unnatural carnality between males became an offense against the law. This article of the German Code (Section 175) has caused great discussion and much practical difficulty, because, although the terms of the law make it necessary to understand by _widernatürliche Unzucht_ other practices besides _pædicatio_, not every homosexual practice is included; it must be some practice resembling normal coitus. There is a widespread opinion that this article of the code should be abolished; it appears that at one time an authoritative committee pronounced in favor of this step, and their proposition came near adoption. The Austrian law is somewhat similar to the German, but it applies to women as well as to men; this is logical, for there is no reason why homosexuality should be punished in men and left unpunished in women. In Russia the law against homosexual practices appears to be very severe, involving, in some cases, banishment to Siberia and deprivation of civil rights; but it can scarcely be rigorously executed.
The existing law in England is severe, but simple. Carnal knowledge _per anum_ of either a man or a woman or an animal is punishable by a sentence of penal servitude with not less than three years, or of imprisonment with not more than two years. Even "gross indecency" between males, however privately committed, has been since 1885 a penal offense.[270] The clause is open to criticism. With the omission of the words "or private," it would be sound and in harmony with the most enlightened European legislation; but it must be pointed out that an act only becomes indecent when those who perform it or witness it regard it as indecent. The act which brought each of us into the world is not indecent; it would become so if carried on in public. If two male persons, who have reached years of discretion, consent together to perform some act of sexual intimacy in private, no indecency has been committed. If one of the consenting parties subsequently proclaims the act, indecency may doubtless be created, as may happen also in the case of normal sexual intercourse, but it seems contrary to good policy that such proclamation should convert the act itself into a penal offense. Moreover, "gross indecency" between males usually means some form of mutual masturbation; no penal code regards masturbation as an offense, and there seems to be no sufficient reason why mutual masturbation should be so regarded.[271] The main point to be insured is that no boy or girl who has not reached years of discretion should be seduced or abused by an older person, and this point is equally well guaranteed on the basis introduced by the _Code Napoléon_. However shameful, disgusting, personally immoral, and indirectly antisocial it may be for two adult persons of the same sex, men or women, to consent together to perform an act of sexual intimacy in private, there is no sound or adequate ground for constituting such act a penal offense by law.
One of the most serious objections to the legal recognition of private "gross indecency" is the obvious fact that only in the rarest cases can such indecency become known to the police, and we thus perpetrate what is very much like a legal farce. "The breaking of few laws," as Moll truly observes, regarding the German law, "so often goes unpunished as of this." It is the same in England, as is amply evidenced by the fact that, of the English sexual inverts, whose histories I have obtained, not one, so far as I am aware, has ever appeared in a police-court on this charge.
It may further be pointed out that legislation against homosexuality has no clear effect either in diminishing or increasing its prevalence. This must necessarily be so as regards the kernel of the homosexual group, if we are to regard a considerable proportion of cases as congenital. In France homosexuality _per se_ has been untouched by the law for a century; yet it abounds, chiefly, it seems, among the lowest in the community; although the law is silent, social feeling is strong, and when--as has been the case in one instance--a man of undoubted genius has his name associated with this perversion it becomes difficult or impossible for the admirers of his work to associate with him personally; very few cases of homosexuality have been recorded in France among the more intelligent classes; the literature of homosexuality is there little more than the literature of male prostitution, as described by police-officials, and as carried on largely for the benefit of foreigners. In Germany and Austria, where the law against homosexuality is severe, it abounds also, perhaps to a much greater extent than in France;[272] it certainly asserts itself more vigorously; a far greater number of cases have been recorded than in any other country, and the German literature of homosexuality is very extensive, often issued in popular form, and sometimes enthusiastically eulogistic. In England the law is exceptionally severe; yet, according to the evidence of those who have an international acquaintance with these matters, homosexuality is fully as prevalent as on the Continent; some would say that it is more so. Much the same is true of the United States, though there is less to be seen on the surface. It cannot, therefore, be said that legislative enactments have very much influence on the prevalence of homosexuality. The chief effect seems to be that the attempt at suppression arouses the finer minds among sexual inverts to undertake the enthusiastic defense of homosexuality, while coarser minds are stimulated to cynical bravado.[273] As regards the prevalence of homosexuality in the United States, I may quote from a well-informed American correspondent:-- "The great prevalence of sexual inversion in American cities is shown by the wide knowledge of its existence. Ninety-nine normal men out of a hundred have been accosted on the streets by inverts, or have among their acquaintances men whom they know to be sexually inverted. Everyone has seen inverts and knows what they are. The public attitude toward them is generally a negative one--indifference, amusement, contempt.
"The world of sexual inverts is, indeed, a large one in any American city, and it is a community distinctly organized--words, customs, traditions of its own; and every city has its numerous meeting-places: certain churches where inverts congregate; certain cafés well known for the inverted character of their patrons; certain streets where, at night, every fifth man is an invert. The inverts have their own 'clubs,' with nightly meetings. These 'clubs' are, really, dance-halls, attached to _saloons_, and presided over by the proprietor of the saloon, himself almost invariably an invert, as are all the waiters and musicians. The frequenters of these places are male sexual inverts (usually ranging from 17 to 30 years of age); sightseers find no difficulty in gaining entrance; truly, they are welcomed for the drinks they buy for the company--and other reasons. Singing and dancing turns by certain favorite performers are the features of these gatherings, with much gossip and drinking at the small tables ranged along the four walls of the room. The habitués of these places are, generally, inverts of the most pronounced type, i.e., the completely feminine in voice and manners, with the characteristic hip motion in their walk; though I have never seen any approach to feminine dress there, doubtless the desire for it is not wanting and only police regulations relegate it to other occasions and places. You will rightly infer that the police know of these places and endure their existence for a consideration; it is not unusual for the inquiring stranger to be directed there by a policeman."
The Oscar Wilde trial (see _ante_, p. 48), with its wide publicity, and the fundamental nature of the questions it suggested, appears to have generally contributed to give definiteness and self-consciousness to the manifestations of homosexuality, and to have aroused inverts to take up a definite attitude. I have been assured in several quarters that this is so and that since that case the manifestations of homosexuality have become more pronounced. One correspondent writes:-- "Up to the time of the Oscar Wilde trial I had not known what the condition of the law was. The moral question in itself--its relation to my own life and that of my friends--I reckoned I had solved; but I now had to ask myself how far I was justified in not only breaking the law, but in being the cause of a like breach in others, and others younger than myself. I have never allowed the _dictum_ of the law to interfere with what I deemed to be a moral development in any youth for whom I am responsible. I cannot say that the trial made me alter my course of life, of the rightness of which I was too convincingly persuaded, but it made me much more careful, and it probably sharpened my sense of responsibility for the young. Reviewing the results of the trial as a whole, it doubtless did incalculable harm, and it intensified our national vice of hypocrisy. But I think it also may have done some good in that it made those who, like myself, have thought and experienced deeply in the matter--and these must be no small few--ready to strike a blow, when the time comes, for what we deem to be right, honorable, and clean."
From America a lady writes with reference to the moral position of inverts, though without allusion to the Wilde trial:-- "Inverts should have the courage and independence to be themselves, and to demand an investigation. If one strives to live honorably, and considers the greatest good to the greatest number, it is not a crime nor a disgrace to be an invert. I do not need the law to defend me, neither do I desire to have any concessions made for me, nor do I ask my friends to sacrifice their ideals for me. I too have ideals which I shall always hold. All that I desire--and I claim it as my right--is the freedom to exercise this divine gift of loving, which is not a menace to society nor a disgrace to me. Let it once be understood that the average invert is not a moral degenerate nor a mental degenerate, but simply a man or a woman who is less highly specialized, less completely differentiated, than other men and women, and I believe the prejudice against them will disappear, and if they live uprightly they will surely win the esteem and consideration of all thoughtful people. I know what it means to an invert--who feels himself set apart from the rest of mankind--to find one human heart who trusts him and understands him, and I know how almost impossible this is, and will be, until the world is made aware of these facts."
But, while the law has had no more influence in repressing abnormal sexuality than, wherever it has tried to do so, it has had in repressing the normal sexual instinct, it has served to foster another offense. What is called blackmailing in England, _chantage_ in France, and _Erpressung_ in Germany--in other words, the extortion of money by threats of exposing some real or fictitious offense--finds its chief field of activity in connection with homosexuality.[274] No doubt the removal of the penalty against simple homosexuality does not abolish blackmailing, as the existence of this kind of _chantage_ in France shows, but it renders its success less probable.
On all these grounds, and taking into consideration the fact that the tendency of modern legislation generally, and the consensus of authoritative opinion in all countries, are in this direction, it seems reasonable to conclude that neither "sodomy" (i.e., _immissio membri in anum hominis vel mulieris_) nor "gross indecency" ought to be penal offenses, except under certain special circumstances. That is to say, that if two persons of either or both sexes, having reached years of discretion,[275] privately consent to practise some perverted mode of sexual relationship, the law cannot be called upon to interfere. It should be the function of the law in this matter to prevent violence, to protect the young, and to preserve public order and decency. Whatever laws are laid down beyond this must be left to the individuals themselves, to the moralists, and to social opinion.
At the same time, and while such a modification in the law seems to be reasonable, the change effected would be less considerable than may appear at first sight. In a very large proportion, indeed, of cases boys are involved. It is instructive to observe that in Legludic's 246 cases (including victims and aggressors together) in France, 127, or more than half, were between the ages of 10 and 20, and 82, or exactly one-third, were between the ages of 10 and 14. A very considerable field of operation is thus still left for the law, whatever proportion of cases may meet with no other penalty than social opinion.
That, however, social opinion--law or no law--will speak with no uncertain voice is very evident. Once homosexuality was primarily a question of population or of religion. Now we hear little either of its economic aspects or of its sacrilegiousness; it is for us primarily a disgusting abomination, i.e., a matter of taste, of esthetics; and, while unspeakably ugly to the majority, it is proclaimed as beautiful by a small minority. I do not know that we need find fault with this esthetic method of judging homosexuality. But it scarcely lends itself to legal purposes. To indulge in violent denunciation of the disgusting nature of homosexuality, and to measure the sentence by the disgust aroused, or to regret, as one English judge is reported to have regretted when giving sentence, that "gross indecency" is not punishable by death, is to import utterly foreign considerations into the matter. The judges who yield to this temptation would certainly never allow themselves to be consciously influenced on the bench by their political opinions. Yet esthetic opinions are quite as foreign to law as political opinions. An act does not become criminal because it is disgusting. To eat excrement, as Moll remarks, is extremely disgusting, but it is not criminal. The confusion which thus exists, even in the legal mind, between the disgusting and the criminal is additional evidence of the undesirability of the legal penalty for simple homosexuality. At the same time it shows that social opinion is amply adequate to deal with the manifestations of inverted sexuality. So much for the legal aspects of sexual inversion.
But while there can be no doubt about the amply adequate character of the existing social reaction to all manifestations of perverted sexuality, the question still remains how far not merely the law, but also the state of public opinion, should be modified in the light of such a psychological study as we have here undertaken. It is clear that this public opinion, molded chiefly or entirely with reference to gross vice, tends to be unduly violent in its reaction. What, then, is the reasonable attitude of society toward the congenital sexual invert? It seems to lie in the avoidance of two extremes. On the one hand, it cannot be expected to tolerate the invert who flouts his perversion in its face, and assumes that, because he would rather take his pleasure with a soldier or a policeman than with their sisters, he is of finer clay than the vulgar herd. On the other, it might well refrain from crushing with undiscerning ignorance beneath a burden of shame the subject of an abnormality which, as we have seen, has not been found incapable of fine uses. Inversion is an aberration from the usual course of nature. But the clash of contending elements which must often mark the history of such a deviation results now and again--by no means infrequently--in nobler activities than those yielded by the vast majority who are born to consume the fruits of the earth. It bears, for the most part, its penalty in the structure of its own organism. We are bound to protect the helpless members of society against the invert. If we go farther, and seek to destroy the invert himself before he has sinned against society, we exceed the warrant of reason, and in so doing we may, perhaps, destroy also those children of the spirit which possess sometimes a greater worth than the children of the flesh.
Here we may leave this question of sexual inversion. In dealing with it I have sought to avoid that attitude of moral superiority which is so common in the literature of this subject, and have refrained from pointing out how loathsome this phenomenon is, or how hideous that. Such an attitude is as much out of place in scientific investigation as it is in judicial investigation, and may well be left to the amateur. The physician who feels nothing but disgust at the sight of disease is unlikely to bring either succor to his patients or instruction to his pupils.
That the investigation we have here pursued is not only profitable to us in succoring the social organism and its members, but also in bringing light into the region of sexual psychology, is now, I hope, clear to every reader who has followed me to this point. There are a multitude of social questions which we cannot face squarely and honestly unless we possess such precise knowledge as has been here brought together concerning the part played by the homosexual tendency in human life. Moreover, the study of this perverted tendency stretches beyond itself; "O'er that art Which you say adds to Nature, is an art That Nature makes."