Cyclopædia of Political Science, Political Economy, and the Political History of the United States
POLICE. By the term police, we here mean the coercive power of the state in the domain of home administration. Morality, on the other hand, is the rule, the dictate of duty in the conscience of the individual, over his will, and the free action of that will. This rule or supremacy can be founded only on the freedom of the individual. It is a fact of psychic life which can not be produced by outward coercion, but, at the same time, which can not be prevented. Since power, in the sense in which the term is used in this article, can exercise only external compulsion, it follows that it has not the means of directly influencing the morality of individuals. It may prevent individuals from doing certain definite acts, and by threats of penalty compel the individual to perform certain public duties; but it is unable to create or transform the sentiment from which the supremacy of the dictates of duty over the will of man springs. For moral freedom is a domain inaccessible to the police power. This cardinal truth has made its way to full recognition, only slowly. Only in modern times has the state refused to make its subjects moral by means of public ordinances and prohibitions, and by the enforcement of compulsory police measures. In the ancient world, and chiefly among the Greeks, the conviction prevailed, that the state should assume the task of educating the individual in morality, and that the individual could only become moral in the state and through the state. Plato and Aristotle, different as their doctrines of the state are in other points, agreed with the then prevailing opinion, that the state should regulate both the inner and the outward life of its citizens, in order to guide them toward the highest good, to morality. In the legislation of the ancients the law, as a consequence, encroached on the domain of morality, and the codes of law which subjected individuals most to guardianship in this matter, in order to educate them in morality, were those that enjoyed the highest reputation. (Cf. Hermann Lehrbuch der Griech Privatalter-thümer, 2d ed., 1870, p. 473, etc.; Schömann, Griech Alterthümer, 3d ed., 1871, vol. i., p. 113, etc.; Fustel de Coulanges, La cité antique, p. 281, etc.)
—The Roman law was the first to assume an independent attitude in relation to morality, and to frame itself in accordance with its own laws. But the Roman state not only demanded of the citizen that he should live according to law, and perform all his legal duties, it also expected the citizen, by his moral private life, and a well-regulated private household, to contribute to the well-being of the community. Any one, who through immoral conduct injured his own worth as a citizen, and, as a member of the commonwealth, injured the community, did not, therefore, violate the law, but he exposed himself to reproof by the state, and forfeited his political honor, because he had failed to fulfill his moral obligations toward the state. In the public census, that occurred every fifth year, the censors were required not only to examine into the rights of the citizens, their capacity for taxation, and bearing arms; they were also required to subject the moral conduct of individuals to a thorough investigation, and, without any legal restraint, they might inflict the nota of infamy on any citizen who had done anything "contrary to public morality, and contrary to the interests of the community." The delinquent, according to his rank, was then either expelled from the tribus, or, if eques, condemned to lose his horse, or to be deprived of his seat in the senate. The censorial nota, which had to be ratified by both censors, remained valid only until the expiration of the lustrum, that is, until the period of the next census. (Cf Mommsen Römisches Staatsrecht, 2d ed., 1877, vol. ii., p. 363, etc.) This remarkable institution of moral censorship may not have been able to render the Romans more moral, but it certainly contributed to strengthen the sense of civil honor, and, for a limited time at least, it was able to oppose a barrier to the outward decay of morality. The censorship perished under the empire, and the imperial penal laws against immorality and luxury proved inadequate substitutes for the censure, which, "by the magnitude of its power, boundlessness of its arbitrariness, its lofty moral nobleness, and local patriotic egotism, was a genuine expression of the Roman republic." (Mommsen, vol. ii., p. 327.)
—During the middle ages the prevailing theory of the church assigned to the state the task of employing its political power in the execution of ecclesiastical decrees, and of compelling the observance of the moral precepts sanctioned by the church. But, at that time, by reason of the inconsiderable part taken by the state in legislation and in internal administration, it was only in isolated cases and unsystematically that the state could undertake the task assigned it by the church. Not till the close of the middle ages did the public authorities, in an unsystematic manner, it is true, begin extensively to oppose immorality by threats of punishment, and to remove certain immoral excrescences in isolated cases. Laws were enacted against luxury, cursing and swearing, excessive drinking, against beggary, and the keeping of concubines. In Germany the imperial police regulations of the sixteenth century present a long and varied series of police regulations and prohibitions, which were afterward kept up, and still further extended in the other German states by legislation. When, later, in the eighteenth century, enlightened despotism had attained to power, governments, by a close supervision of the subjects of the state, and by the legislative regulation of their private life, did their best to lead them, if not to morality, at least to temporal well-being. Without recognizing the moral freedom of the individual, active police legislation sought to subject the whole life and endeavors of individuals to regulations. Only since the close of the past and the beginning of this century has a more correct understanding of the true nature of morality and of moral freedom begun to exert its influence on the legislation and administration of the state. By degrees the police laws, which interfered with the private life of the subject, not with a view of preventing violations of the law, or to protect the community from danger, but solely to compel the individual to greater morality or economical foresight, were expressly abrogated, or fell into complete oblivion for want of enforcement. The state at last came to understand that it must refuse to endeavor to educate its citizens morally by the employment of coercive means, and that it should promote their moral education by aiding the whole economic and intellectual culture of the people in so far as that culture requires the aid of the state. The state has further understood, that in itself immorality is not punishable, because the state can pass judgment only on external acts and behavior, not on things which belong to the inner psychic life of man. An act in itself is neither moral nor immoral; it is moral or immoral only in so far as the disposition or intention, whose outward expression it is, is moral or immoral. The state is justified in opposing, and obliged to oppose, and, when possible, to prevent, immoral acts, only in so far as such acts are an injury to the goods of individuals or of the community protected by the state, or when there is danger that immoral acts may cause such injury. In such cases the state interferes, not because the intention, from which the acts proceed, is immoral, but because such acts either injure, or threaten to injure, the goods, which are under the legal protection of the state. It is only external acts, therefore, which belong to the police supervision of the state, and not morality or immorality of intention.
—Acts proceeding from an immoral character or intention, followed by injury to goods protected by the law, draw after them legal consequences, which are determined by the different parts of the law, particularly by the criminal or penal law. The object of police regulations for the public security is the prevention of these violations of the law. Police regulations in the interest of morality, on the contrary, concern themselves only with those acts which of themselves are not an injury to interests recognized by the law, to property, etc.; which do not even always expose such interests to injury; but which, by the spread and encouragement of an immoral character in the community, are apt to cause injury or expose to danger the goods of individuals or of the community. Police regulations in the interests of morality, therefore, are not aimed at the immoral intention itself, but at the spread and encouragement of the immoral character; and even in this case only when such spread and encouragement threatens injury to legally protected interests. It hence results, that the sphere of such regulations in the modern state is a very narrow one, and that it is confined to a limited number of external immoral acts. And, as these regulations do not oppose immorality because immoral, but because it is the cause of injury to the community, it follows that the legal provisions of states in the matter of public morality will be different in different states, according as the prevalence of such injury is greater or less. The diversity of the stages of culture, of the character, of the customs and economic conditions in different nations, produces a diversity in the police regulations relating to morality. The objects with which police regulations in the interests of morality are chiefly concerned, are drunkenness, gambling and sexual profligacy. In recent times these regulations have rightly been extended so as to make them cover cruelty to animals.
—I. Drunkenness. The indulgence in intoxicating beverages, which is to be found among almost all nations of the past and of the present, is not in itself immoral, but becomes immoral when, through excess, it begins to exert an injurious effect on the body and on the mind. Man then undermines his bodily and his mental powers, in order to afford a momentary gratification to the senses. But in so far as the individual, by excessive indulgence in intoxicating beverages, injures only himself, it is not the duty of the state to interfere with him. The state is not bound to relieve its adult subjects of their moral responsibility, nor to protect them against the consequences of their own individual immorality. But when drunkenness no longer appears as an isolated phenomenon; when, over the whole people, or over any single class of the population, it asserts its lamentable power, its injurious effects are not limited to the individual who is its slave, but are felt by the family, by society, and by the state, and it imperils the very foundations of the family, and the life of the state. Recent investigations have proved that excessive indulgence in intoxicants not only acts injuriously on the organism, that it not only increases the liability to sickness, and increases the mortality of drinkers, but also, that through the influence of alcoholism, many symptoms of degeneracy are transmitted to offspring. Although the statistical data are here somewhat defective, it is an incontestable fact, that the drunkenness of parents transmits to their progeny the tendency to a number of serious diseases, under which the latter sooner or later succumb. The destruction of family life, caused by alcoholism, and the effects of habitual parental drunkenness on the children, can not be shown statistically, but these effects are so manifest that statistics are superfluous. The consequences of intemperance extend far beyond the family circle, when it has become a vice of the nation, or of any class of society. There is no doubt whatever that intemperance is a fruitful source of the increase of crime and of criminals. "Poverty, ignorance, sensuality, irreligion and immorality are greatly favored by alcoholism, and proportionately diminished by the temperate habits of the people." In this sense alcoholism very perceptibly influences the increase of crime. We are convinced that drunkenness and alcoholism render man inclined to commit unlawful acts, which differ according to time, place and circumstances; because under their influence he is unable to control any transient impulse of the will, and can not subject it, as when he is sober, to the control of the judgment. It is a truth that, with the increase of intemperance and of drunkards—which is not altogether identical with the increase of the consumption of alcohol in general—the number of crimes and of criminals also increases. And in this opinion all those agree who are best acquainted with the lives of criminals, to wit, the judges and magistrates of all countries.*31 We certainly must not here overlook the fact, that a number of crimes, committed by drunkards or in a state of drunkenness, would probably have been committed, even if the perpetrators had not been addicted to drink; still, it is certain that intemperance and drunkenness in very many instances are the element but for the presence of which these crimes would not have been committed.
—As to the number of drunkards among prisoners, and the number of crimes committed under the influence of alcohol, we possess statistical proof showing the influence of intemperance in producing crime. On the other hand, we lack sufficient data to show the precise influence of intemperance on the number of those who claim public assistance. In spite of this absence of statistical proof, we may safely assume that in numerous cases pauperism has its source in the intemperance of the assisted individual, or of his parents. The cause of pauperism lies in the disturbance of domestic economic conditions. The loss of bodily and intellectual power renders it impossible, or at least extremely difficult, for the person impoverished by intemperance to rehabilitate himself.
—In this way intemperance exercises highly injurious effects on family and national life, as well as on the state. We must accordingly regard it as the duty of the state to protect itself against the dangers by which it is threatened from intemperance. In several countries the efforts of society, unsupported by the state, have been able, for a time at least, to stop the progress of intemperance. Thus, the temperance and total abstinence societies in the United States and Great Britain have exercised a beneficent influence. In the year 1808 a temperance society was founded at Moreau, in the state of New York, but it failed of any marked success. But a temperance society, which was finally established in 1827, and whose members pledged themselves to total abstinence from all alcoholic beverages, rapidly gained a vast number of adherents. In 1828 there had been formed 280 temperance societies, with 30,000 members: in 1835 the number of the societies had increased to 8,000, with 1,500,000 members. More than 4,000 whisky distilleries were closed, and more than 8,000 merchants had given up the traffic in spirits. In recent times, however, these temperance societies have decreased. In England, the first temperance society was established in 1829. In that country, above all, the teetotal temperance society, established in 1835, had a large membership, while in 1840, and subsequently, Father Mathew, both in Ireland and in England, gained honorable distinction in his warfare against intemperance. At present there exist in Great Britain many large societies, with abundant means at their command, among which the national temperance league seems to be the most important. In Germany, beginning with the year 1838, and chiefly in Prussia, Hanover, Oldenburg, etc., several temperance societies were formed, which, in spite of violent opposition, gained a large number of adherents. Nevertheless, after 1846, the activity of these societies daily diminished; most of them ultimately dissolved, and the few that have survived until the present, have dragged out a sickly existence. The history of these associations in Germany proves that the action of society does not suffice for the suppression of intemperance. Hence, even the successful societies in England and the United States have felt the necessity of invoking the aid of the state, of the police and of the legislature. The state can not refuse to grant this aid. Still, in granting it, the legislator should bear in mind that it is not the task of the state to make individuals moral. It should only seek, as far as possible, to protect society from the damage, and prevent the injury, caused by intemperance. To this end, the state may put obstacles in the way of temptation to intemperance, and, by the imposition of suitable penalties, oppose the spread of intemperance.
—The most important means at the command of the state, to oppose the temptation to intemperance, is the limitation and surveillance of drinking places, and of the retail trade in spirits.*32
—The adoption of the so-called "police hour" (closing time) has also proved a means to prevent the spread of intemperance, by restricting the sale of intoxicants to certain hours. The legislatures of several states of the Union have resorted to still more effective measures. Through the influence of the temperance societies in the state of Maine, a law was passed, which forbids the sale of all intoxicating drinks, with the exception of cider and native wine. In the years following, Maine's example was imitated by many other states, which subsequently revoked the prohibition. Experience has shown that the state is unable to enforce a law of this kind, and that the real good which it may effect is more than counterbalanced by the hypocrisy and demoralization which it causes. In other states of the Union an effort has been made to turn the saloon keepers themselves into instruments to oppose intemperance, by rendering them liable for all the consequences of intemperance. It is provided, that any one who by the sale of intoxicants shall have caused the drunkenness of another, shall be responsible for the injury which the drunkard, his family, etc., may have suffered in their property, means of subsistence, or in their persons. In England (Law of 1872, art. 3), in France (Law of Jan. 23, 1878, art. 4), in Sweden (Law of 1869, § 29). and in The Netherlands (Law of June, 1881, art. 17), it is forbidden to publicans to sell intoxicants to individuals already drunk, or to minors under the age of sixteen.
—Finally, the state may threaten the excesses of intemperance with punishment. In Germany, the penal law of the empire punishes by imprisonment all persons who abandon themselves to drink to such a degree that they fall into a condition such that they must appeal to the authorities for their own support, or for the sustenance of those whom they naturally are obliged to support. By virtue of this law the police authorities may also obtain the power to place the sentenced person, at the expiration of his punishment, for two years in a workhouse, or to employ him in works of public utility. But even these provisions may not prove sufficient. Under these laws the interposition of the state does not take place before the drunkard has reached such a degree of moral depravity that his cure is impossible. The sojourn in a workhouse, moreover, is but seldom favorable to the improvement of the habitual drunkard, and the threat of punishment can scarcely produce any deterrent effect on him. The penal police laws in several German states, as well as the legislation of Sweden (Penal Code of Feb. 16, 1864, § 15), of England (Law of 1872, art. 12), of France (Law of Jan. 23, 1873), of Austria (Law of July 19, 1879, valid only in Galicia and Bukowina), of The Netherlands (Law of 1881, art. 22, 23), go still further, and threaten with punishment all who are found in taverns, in the street, or in other public places, in a condition of evident or scandalous intoxication.
—The state can also, in an indirect way, effect a diminution of the use of intoxicants, by raising the price of whisky, etc., the most injurious of all, by taxation. Still, in the warfare against intemperance, this expedient does not deserve to have the importance attached to it which it has enjoyed. Experience has thus far shown that the taxation of whisky, etc., which exceeds a certain limit, has only ruinous consequences, because it leads to fraud, and efforts to evade the law; it favors the secret consumption of whisky, and causes a diminution in the revenues of the state. All these measures owe their origin to the opinion that intemperance is a vice when public, and that it must be combated by the state, by reason of its dangers to the community. Careful observations and investigations, however, have demonstrated that intemperance, when it reaches a certain degree, becomes a real disease, which destroys the empire of reason over the will to such an extent that its victim becomes unable to resist his passion for strong drink. But experience has shown that in many cases a cure of the disease can be effected by skillful professional treatment, and through a complete denial to the patient of all alcoholic drinks.*33
—II. Gambling. The economic and moral evils produced by a love for gambling among a people are so evident that they require no proof. The state does not assume the task of freeing the individual from the passion or vice of gambling, but it is its duty to oppose open temptations to gambling, and, above all, not to induce its citizens to engage in games of hazard. In states also which from financial motives do not believe themselves able to abolish the state lotteries, as in Italy, Austria and in several German states, there is no doubt as to the injury done by such institutions. In the German empire the legislature has, by the following provisions, sought to prevent open temptations to gambling. 1. Public gambling houses shall neither be licensed nor tolerated. On Dec. 31, 1872, the last houses of the kind that existed in Germany were closed under the law of July 1, 1868. 2. Public lotteries and public raffling of movable or immovable goods can take place only with the permission of the authorities (Penal Code of the Empire, § 286); the law also forbids the sale or offer of tickets in foreign lotteries, unless allowed by the government of the country. 3. Only the authorities can permit games of hazard on the high road (street, square), or in a public place or inn. Inn keepers who permit games of hazard in their places, or connive at such games played secretly, are also liable to punishment. 4. The business of games of hazard for purposes of gain is forbidden, and may be severely punished. Persons violating these laws are punished by imprisonment for a term of two years; besides which a pecuniary fine of from 300 to 6,000 marks, with the loss of certain civil rights, may also be inflicted on them. If the person sentenced is a foreigner the police authorities may expel him from the federal territory.
—Provided the above regulations are respected, games, and even games of hazard, are not forbidden in the German empire. As in the case of the drunkard, the gambler is threatened with punishment by the penal code of the empire when his case is analogous to the drunkard's. When sentenced to imprisonment, the police authorities may be empowered to send him, at the expiration of his term of punishment, to a workhouse for two years, or to employ him in works of common utility.
—III. Prostitution. Changed ideas in reference to the attitude of the state toward immorality are nowhere so evident as in the legal treatment of sexual profligacy. While from the seventeenth century until the middle of the eighteenth the state declared all sexual immorality punishable, and threatened it with heavy punishments,*34 since that time, chiefly owing to the influence of Beccaria, the opinion has prevailed that sexual immorality should be treated as a crime only when it is accompanied by the violation of a legally protected right; but that the state should not punish immorality as such. The police of public morality should, according to this view, oppose only seduction, and the public scandal caused by immorality.*35 Modern penal codes in the main adopt this view, as does also the penal code of the German empire. There are, however, certain exceptional crimes against chastity which involve no violation of a legally protected right, but which are punished, even when there can be no question of public scandal. To these exceptions belong the unnatural crimes of sodomy, etc. Leaving these exceptions out of consideration, the state proceeds against sexual incontinence, which does not violate a legally protected right, such as the freedom and honor of the person, the family, etc., only from motives of order. But moral police reasons are not here the only controlling ones. It is well known that syphilis, which preys on the very marrow of nations, has been propagated chiefly by sexual profligacy. Even if it be no concern of the state to protect individuals against the injurious consequences of immorality, it must be remembered that syphilis does not confine its ravages to those who have brought it upon themselves by their profligacy. It may be transmitted in various other ways (particularly through wet-nurses to infants) and by inheritance it bequeaths destruction to future generations. Here, public moral police must go hand in hand with sanitary police.
—The state should see to it, that the moral sense of the people, and public decorum, are not outraged by indecent public exhibitions. The following, therefore, should be punished: 1, persons who cause public scandal by indecent acts; 2, persons selling indecent writings, pictures or drawings, who distribute them, or who exhibit or affix them in places frequented by the public; 3, fornication, when it causes a public scandal. The state should punish, not only treacherous inducements to incontinence or to unchastity when accompanied by the violation of particular duties, and the seduction of minors, or girls under sixteen, but also seduction when it assumes a character dangerous to the interests of the community. It is not the duty of the state to make the individual moral, or to protect her against temptations to immorality; but it should endeavor to prevent all acts of immorality calculated to poison family life and the life of the nation. The law, therefore, rightly punishes procurers or panders, that is, the intentional enticement of others to unchastity. Still, it is very questionable to what extent the state should declare panders punishable. In this matter the provisions of law in different countries are very different. In France (Code pénal, art. 334), habitual panderage is punished only when it facilitates the seduction of minors; but, according to the penal code of the German empire, those persons are punished for panderage who, habitually or from motives of gain, through their mediation, or through the affording of opportunities, promote unchastity. According to this, the keeping of loose women in brothels for purposes of prostitution is punishable. But it is questionable whether this prohibition can be reconciled with the requirements of sanitary police. Sanitary police, which must prevent the spread of syphilis, can only perform this task by subjecting to a strict control all women who carry on prostitution as a trade. This control is unquestionably facilitated when ordinary prostitution, in the larger cities at least, is confined to relatively few brothels, and when the police seek to suppress all prostitution outside of these houses. It is not proper to assume that the state acts contrary to duty when it tolerates houses of prostitution, for it has not to combat vice as such, but only to react against the spread of incontinence as a common danger.*36 By the toleration of brothels the state does not lend support to vice, but it leaves the temptation to vice unpunished, only because from its suppression there would result greater disadvantages than advantages to the community.
—There is no need here of closely examining the question, whether or not sanitary police requires the toleration and strict supervision of brothels; but, if it does, there exists in principle no objection against it, from the point of view of the police of public morality.*37 Simple sexual incontinence may not be forbidden by the state, but the state should oppose the trade in unchastity by loose women; for there result therefrom great dangers both to health and public morality.
—Prostitution as a trade leads easily to seduction, which is socially dangerous, and to the causing of public scandal; and, on the other hand, it favors the spread of syphilis. The penal code of the German empire therefore forbids the trade of prostitution to women who are not subject to police supervision, and punishes prostitutes under police supervision if they neglect the regulations of the police that have been made in the interest of health, of public order and public decorum.
—The task of the police regulations in the interest of public morality is, accordingly, to suppress all prostitution that seeks to escape police supervision, and, through proper police regulations and their enforcement, to bring it about that vice should not escape the obscurity which alone beseems it. The task of sanitary police, while seeking to prevent the spread of syphilis through prostitution, is more difficult. Dancing "saloons" should also be subjected to special police supervision, as they frequently lead to seduction and incontinence, and to the disturbance of public peace and order.
—IV. Cruelty to Animale. The state interferes to prevent cruelty to animals, in order to prevent the moral sense of the people being shocked by such cruelty perpetrated on animals, and to afford a protection to the animals themselves against any unnecessary, and hence immoral, cruelty of that nature. In France this protection extends only to domestic animals (animaux domestiques). The law of July 2, 1850, threatens with punishment any one who publicly unseemingly (abusivement) maltreats domestic animals. In England, as early as the year 1823, a law was passed against cruelty to animals. The laws in force there at present are those of 1850 and 1855 (12 and 13 Vict., ch. 92; 17 and 18 Vict., chap. 60): they threaten all ill treatment of domestic animals with punishment. Under the influence of an unhealthy sentimental movement, a law was also passed, in 1870, against scientific experiments on live animals (vivisection; 39 and 40 Vict., ch. 77). According to this law, any painful experiments on live animals are permitted only to persons who have received an authorization from the minister, which, however, may at any time be revoked. Vivisection can only be practiced under the conditions imposed by the law. In granting the license the minister may also add any other conditions at will. The efforts to prevent scientific investigations by a law of this kind have hitherto proved vain in Germany.
Notes for this chapter
Bär, p. 341, etc. According to Bär (p. 348), the most experienced judges, magistrates and prison officials in England have declared, that three-fourths to four-fifths of all crimes are the result of intemperance. In the year 1877, before a parliamentary committee, nineteen prison superintendents and clergymen stated that the number of prisoners who were victims of intemperance amounted to 60-90 per cent. of all criminals (p. 344). In Germany, according to Bär (p. 348), in the year 1875, of 32,837 prisoners, there were 13,706 drunkards (41.7 per cent.), 7,269 occasional drinkers (22.1 per cent.), and 6,437 habitual drunkards (19.6 per cent.).
The general economic principle, that the production accommodates itself to the demand for the article produced, is incorrect in so far as the number of drinking places and the retail trade in spirits are concerned, for the reason that the temptations to intemperance are increased by the frequency, convenience and cheapness of the opportunities offered for the gratification of the taste for intoxicants. Where taverns or "saloons" and the retail trade in spirits are completely free, the number of taverns, etc., is not proportioned to the want, but to the power of resistance of the people to the desire, for strong drink. The less this power for resistance is, the greater will be the number of "saloons," and the more rapidly will intemperance spread. For this reason the retailing of spirituous liquors has in all states been subjected to police regulations, and where these regulations have been abolished, a speedy return to severer ones has been necessary. In England the public houses have to be licensed, and the license can be granted only by a permanent committee of the justices of the peace of the county, or of the city, and must be renewed every year. The license is granted only for one definite public house, on which a special tax is laid. (Laws of 1828 and 1872.) In France, by a decree of Dec. 29, 1851, a tavern or inn can be opened only by virtue of a license, issued by the prefect. The prefect may close a tavern, from motives of public security, or because the keeper thereof has been sentenced for a transgression of the regulations governing his traffic. The prefects are instructed to grant new licenses only after an extremely careful examination into the character of the person and of the demand, and to close a public house as soon as the keeper has become guilty of even the smallest transgression of the police regulations. (Ministerial Circular of March 6, 1872.) A peculiar system, and one worthy of attention, prevails in Sweden and Norway. In Sweden the laws of 1857 and 1869 provided, that in every parish the number of taverns should be determined by boards cooperating with the parish authorities, and that they should be leased to the highest bidder. In 1865 there was formed, in the city of Gothenburgh a joint stock company, which rented all the taverns in the city, with a view to limiting the retailing of spirituous liquors and opposing intemperance. All the profits of the business, by the by laws of the society, go to the treasury of the parish. The highly favorable results obtained by this company caused societies of the same kind to be formed in many other cities. In the year 1871, in Norway, a similar law was enacted, and the so-called Gothenburgh system was introduced there. This system, however, has its disadvantages; for a great number of secret drinking places were opened, and the police but seldom succeeded in suppressing them. In Germany an ordinance of June 21, 1869, makes the business of taverns, as well as the retail trade in brandy and spirits, dependent on the obtaining of a license. The license, however, can be denied: 1, when there is reason to believe that the person asking it is likely to abuse it for the encouragement of excessive drinking, gambling, or of immorality; 2, when the place intended for the trade, by reason of its position, etc., does not satisfy the requirements of the police. When it is not contrary to territorial laws, the territorial administrations may make the permission to retail intoxicants dependent on proof of actual public demand. This is the case in Prussia, Saxony, Mecklenburg, Brunswick, Saxe-Meiningen, Saxe-Coburg-Gotha, Saxe-Altenburg, Reuss and Schaumburg-Lippe. Nevertheless, the ordinance caused a notable increase in the number of retail shops for the sale of intoxicants.
To this effect, asylums for the inebriate were established in the United States (in 1857 in Boston), asylums in which cures are frequently effected. It has been claimed that in the asylums in the United States cures have been effected in 35 per cent. of the cases.
In the middle ages the church used to punish every kind of unchastity as an ecclesiastic transgression, but it is known how widespread sexual profligacy was in the middle ages among the clergy and laity, and how openly it was practiced. Loose women were not only tolerated, but public brothels were considered necessary institutions in a city. They frequently were the property of the lords of the country or city; they were leased out by them, or kept for them by brothel masters or mistresses whom they appointed. Private brothels were licensed, and stood under the protection of public authority, but had to pay certain taxes. In most German cities brothels had to be tolerated under police supervision, and the laws against simple prostitution, as a rule, remained void of effect.
In Germany it was mainly the work of Cella on crimes and transgressions in the matter of unchastity (1786), that paved the way for the opinion that simple incontinence, which appears only as vice, without offending the rights of others, or creating public scandal, is not punishable.
For this reason, Mohl, on principle, advocates the toleration of brothels. V. Oettingen (Moral Statistik, p. 171, etc.) agrees with him in this.
Where brothels are tolerated, they should be subjected to strict supervision, not only in the interest of sanitary police, but, above all, to prevent their becoming hot-beds of vice. It is desirable to give prostitutes the possibility of emancipating themselves from the control of panders and brothel-keepers. The strongest objection against the toleration of brothels consists in this, that in most cases the return to a good life is rendered impossible to their inmates.
End of Notes
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