Chapter XIX: Legislative Reform

A.—LESSONS OF INSTINCT.

Progress is a general law of Nature, and the comparative study of Evolution proves that the tendency to improvement increases with the advance to higher planes of development. Among the lowest organisms the rate of progress is hardly appreciable. The sea shells of the Devonian period can scarcely be distinguished from the shells of our present seas. The balls of amber found on the shores of the Baltic often contain the mummies of insects closely resembling certain species of latter-day flies and beetles, while the horse, the zebra, and other modern varieties of the equine genus, have developed from a creature not much larger than a fox. The Neanderthal skull proves that the heads of our early ancestors were almost ape-like in their protruding jaws and flatness of cranium. The lower animals adhere to inherited habits with a persistency that has often proved their ruin by diminishing their ability of adapting themselves to change of circumstances, as in the case of that sea-lizard of the South sea islands, where its ancestors had for ages managed to escape their only enemies by leaving the water and crawling up the beach, and where their modern descendants persist in crawling landward in the hope of escaping from dogs and hunters.

The higher animals, on the other hand, rarely fail to profit by lessons of experience. Trappers know that the contrivances for capturing wild animals have to be changed from time to time, the older methods being apt to lose their efficacy after the fate of a certain number of victims has warned their relatives. Old rats have been seen driving their young from a dish of arsenic-poisoned gruel. Deer, foxes, and wild turkeys learn to avoid the favorite trails of the hunter; monkeys, on their first arrival in a cold climate, impatiently tear off the jackets or shawls furnished by the kindness of their keeper, but soon learn to appreciate the advantage of artificial teguments, and even try to increase their stock of wardrobe by appropriating every stray piece of cloth they can lay their hands on.

The instinct of adaptation to the conditions of progress has asserted itself both among modern and very ancient nations, though during the mental bondage of the Middle Ages its manifestations were systematically suppressed by the conservatism of religious bigots. Savages show an almost apish eagerness in adopting the habits, fashions, and foibles of civilization. The political institutions of primitive nations are very elastic. The Grecian republics were not only willing but anxious to improve their laws by abolishing abuses and testing amendments. In ancient Rome every general assembly of freemen exercised the functions of a legislative council; legislative reforms were proposed by private citizens and were often carried by acclamation, like the edict for the expulsion of the Tarquins, and the resolution revoking the exile of Cicero.

B.—REWARDS OF CONFORMITY.

Legislative reform, the manful renunciation of entangling alliances with the ghosts of the past, is a sword that has more than once cut a Gordian knot of fatal complications. The suppression of monasteries saved four of our Spanish American sister republics from a brood of vampires that had drained the life-blood of Spain for a series of centuries. In England the timely repeal of the corn-laws averted an explosion that might have rent the coherence of the entire British empire. The abolition of slavery with one blow destroyed a hydra that had menaced the safety of the American Union by an endless series of political disputes. By the abolition of serfdom Czar Alexander elevated the Russian empire to the rank of a progressive nation. The very possibility of national progress depends, indeed, on the hope of legislative reform, for the rigor of unalterable laws prevents social development as the clasp of an iron ring prevents the growth of a tree.

C.—PERVERSION.

All the intelligent nations of antiquity were distinguished by a tendency to legislative progress, till the freedom of that progress was checked by the claims of religious infallibility. The founder of the Zendavesta advanced that claim for a pandect of pretended revelations which became the religious code of Central Asia, and as a consequence the intellectual and industrial development of two valiant nations was stunted by legislative conservatism—the proverbially “unalterable laws of the Medes and Persians.” The claims of an infallible revelation preclude the necessity of reform. “Should mortals presume to improve the ordinances of a God?”

But the blind hatred of progress which has for so many centuries degraded the Christian hierarchy below the priesthood of all other intolerant creeds, is the earth-renouncing antinaturalism of their founder. The priests of Zoroaster, Moses, and Mohammed claimed the sufficiency of their dogmas for the purposes of national prosperity. The priests of the nature-hating Galilean attempted to suppress the very desire of that prosperity. “The doctrine of renunciation made patriotism an idle dream: the saints, whose ‘kingdom was not of this world,’ had no business with vanities of that sort; no chieftain could trust his neighbor; cities were pitted against cities and castles against castles; patriotic reformers would vainly have appealed to the sympathies of men who had been taught to reserve their interest for the politics of the New Jerusalem” (Secret of the East, p. 76).

The Rev. Spurgeon, of London, England, recently provoked the protests of his Liberal colleagues by the confession that he “positively hated advanced thought;” but only five centuries ago such protests were silenced with the gag and the fagot. For nearly a thousand years every clergyman who had the courage to lift his voice in favor of secular reforms was fiercely attacked as a traitor to the sacred cause of other-worldliness. To question the authority of the church was a crime which could not in the least be palliated by such pleas as the temporal interests of mankind, and a mere hint at the fallibility of “revealed scriptures” could only be expiated in the blood of the offender. Nay, thousands of scientists, historians, and philosophers who had never expressed a direct doubt of that sort, were doomed to a death of torture merely because the logical inference of their discoveries was at variance with the dogmas of the Galilean miracle-mongers. From the reign of Charlemagne to the outbreak of the Protestant revolt the intolerance of Christian bigots interposed an insuperable dam between the projects and the realization of social reforms.

“I cannot conceive,” says Hallam, “of any state of society more adverse to the intellectual improvement of mankind than one which admitted no middle line between dissoluteness and fanatical mortifications.”

If it had not been for the exotic civilization of Moorish Spain, it would be strictly true that at the end of the thirteenth century, when the enemies of nature had reached the zenith of their power, “the countries of Europe, without a single exception, were worse governed, more ignorant, more superstitious, poorer, and unhappier than the worst governed provinces of pagan Rome.”

In China and India, too, the resistance of religious prejudice has for ages frustrated the hopes of political development, and the civilization of Europe dates only from the time when a more or less complete separation of church and state was effected by the insurrection of the Germanic nations, and where the work of that separation has been left unfinished the march of reform halts at every step. Every claim of dogmatic infallibility has proved a spoke in the wheels of progress.

D.—PENALTIES OF NEGLECT.

The pig-headed conservatism of orthodox nations has never failed to avenge itself in its ultimate results, but its fatuity has, perhaps, been most strikingly illustrated by the practical consequences of legislative non-progressiveness. There was a time when the small value of real estate made it a trifle for an Italian prince to present a favorite prelate with a few square leagues of neglected woodlands; but now, when those woods have been turned into vineyards and building-lots, and over-population makes the monopoly of land a grievous burden, hundreds of industrious peasants are obliged to starve to swell the revenues of a bloated priest, who nevertheless succeeds in silencing all protests by an appeal to the “necessity of respecting time-honored institutions.” At a time when agriculture and pastoral pursuits were the chief industries of Scotland, it was no great grievance to sequester the seventh day for the exclusive service of ecclesiastic purposes; but now, when thousands of poor factory children need outdoor recreations as they need sunlight and bread, it has become an infamous outrage on personal rights to enforce a medieval by-law for the suppression of outdoor sports on the day when those who need it most can find their only chance for recreation. Nevertheless, the dread of innovations defeats the urged repeal of a law which for the last hundred years has obliged millions of city dwellers to sacrifice the sunshine of their lives for the benefit of a few clerical vampires. The repeal of the witchcraft laws was preceded by a transition period of at least two hundred years, when the mere dread of an open rupture with the specters of the past cowed intelligent jurists into accepting the charge of an impossible crime, and consigning the victims of superstition to the doom of a hideous death. Their private rationalism might revolt against the absurdity of the proceedings, but there were the witnesses, there were the legal precedents, there were the explicit provisions of the penal code, and with or without the consent of their intellectual conscience they had to pronounce the sentence of death. The penal statutes of medieval England made sheep stealing a capital offense, and the mulish conservatism of British legislators refused to abolish that relic of the Dark Ages till the common sense of the lower classes found means to redress the abuse in a way of their own. Juries agreed to acquit sheep-stealers altogether, rather than vote away their lives for that of a quadruped. It was in vain that the prosecuting attorney established the fact of the offense beyond a shadow of reasonable doubt. It was in vain that the charge of the judge emphatically indorsed the indictment. It was in vain that the defendants themselves completed the evidence of their guilt by a frank confession; they were acquitted amidst the wrathful protests of the court and the plaudits of the audience, till sheep-owners themselves were obliged to petition for the repeal of the time-dishonored law. The idea that the mere antiquity of a legal custom is an argument in its favor is a twin sister of the superstitious veneration of antiquated dogmas.

E.—REFORM.

The superstitious dread of innovation, rather than the want of natural intelligence, has for ages thwarted the hopes of rationalism, and the renunciation of that prejudice promises to rival the blessing of Secular education in promoting the advance of social reforms. Orthodox restiveness, rather than any conceivable degree of ignorance, has, for instance, prevented the repeal of the Religious Disability laws which still disgrace the statutes of so many civilized nations. A chemical inventor would be suspected of insanity for trying to demonstrate his theories by quoting the Bible in preference to a scientific text-book, yet on questions as open to investigation and proof as any problem of chemistry, the courts of numerous intelligent nations still refuse to accept the testimony of a witness who happens to prefer the philosophy of Humboldt and Spencer to the rant of an oriental spook-monger. The proposition to oblige a water-drinker to defray the expense of his neighbor’s passion for intoxicating beverages would justly land the proposer in the next lunatic asylum, yet millions upon millions of our Caucasian fellow-men are still taxed to enable their neighbors to enjoy the luxuries of a creed which the conscience of the unwilling tithe-payer rejects as a degrading superstition. In Europe countless Nonconformists have to contribute to the support of a parish-priest or village-rector on pain of having a sheriff sell their household goods at public auction. In America farmers and mechanics have to pay double taxes in order to enable an association of mythology-mongers to hold their property tax-free. Because the pantheon of the Ammonites included a god with cannibal propensities, helpless infants were for centuries roasted on the consecrated gridiron of that god; and because eighteen hundred years ago the diseased imagination of a world-renouncing bigot conceived the idea of a deity delighting in the self-affliction of his creatures, the gloom of death still broods over the day devoted to the special worship of that God, and the coercive penalties of the law are weekly visited upon all who refuse to sacrifice their health and happiness on the altar of superstition.

But legislative abuses are not confined to religious anachronisms. The inconsistencies of our penal code still betray the influence of medieval prejudices in the unwise leniency, as well as in the disproportionate severity, of their dealings with purely secular offenses. The vice of intemperance was for centuries encouraged by the example of the clergy, while the control, or even the suppression, of the sexual instinct was enforced by barbarous penalties. And while the panders of the alcohol vice are still countenanced by the sanction of legal license and admitted to official positions of honor and influence, the mediators of sexual vice are treated as social outcasts, and punished with a severity out of all proportion to the actual social standards of virtue. The deserted wife, who in a moment of despair has caused the death of an unborn child, is treated as the vilest of criminals, while the crime of a railway shark or tenement-speculator whose selfishness and greed have caused a fatal disaster, is condoned in consideration of “social respectability,” i.e., a mask of orthodox sentiments and unctuous cant. A Christian jury will thank a banker for shooting a poor wretch whom extreme distress may have driven to enter a house for predatory purposes, but if that same banker should be convicted of embezzling the hard-earned savings of trusting widows and orphans, his fellow-hypocrites will circulate an eloquent petition for his release from a few years of light imprisonment.

There is need of other reforms, which recommend themselves by such cogent arguments that their adoption seems only a question of time, such as the protection of forests, the recognition of women’s rights, the “habitual criminal” law, physical education, and the abolition of the poison-traffic.

It is undoubtedly true that the progress from barbarism to culture is characterized by the growth of a voluntary respect for the authority of legal institutions, but it is equally true that the highest goals of civilization cannot be reached till the degree of that respect shall be measured by the utility, rather than by the antiquity, of special laws.