MARGINAL COMMENT
By HAROLD NICOLSON
IWAS pleased to read in the Spectator last week Mr. R. H. Cecil's measured summary of the report on The Criminal Law and Sexual Offenders. This report represents the views of a com- mittee jointly appointed by the British Medical Association and the Magistrates Association ; as such, it should have an important effect upon those interested in legal reform. Unfortunately, as Mr. Cecil points out, the framers of the report have been so coy and cautious that the ordinary reader will find it difficult to discover what they advocate and even what they mean. I am fully prepared to believe that all the varied forms of perversion can be catalogued under the four headings of mental illness, character deviation, sub-average intelligence, and physical abnormality. I do not see, however, that this analysis gets us any further ; it amounts to saying that people who behave oddly in such matters must be odd. Nor am I really satisfied by the intrusion of psychological vagueness into what should be the solemn precisions of the law. Once you begin to allow such truly meaningless formulas as " character deviation " to justify anti- social conduct, you will end by losing sight of the real purpose of all law, which is the reasonable protection of the public. It may be true that a person who indulges in indecent exposure is to be pitied as an invalid rather than punished as a criminal ; but this does not alter the fact that those who are afflicted with this malady must be forcibly restrained. It is admirable that the advance of medical psychology should have convinced most reasonable people that it is an error to treat as ordinary criminals people who are afflicted with pituitary defects. Already, under the Criminal Justice Act, 1948, this change of attitude has been recognised in section 77 (3) (f), which provides for psychiatric treatment for such casei. But I am left wondering whether even the most gifted psychiatrist can do much to change defective glands, and whether either the public or those suffering from glandular deficiencies will derive lasting comfort from
77 (3) (f). * * * * I should like to see the lawyers themselves settle down to examin- ing the whole field, with a view to ascertaining whether the existing law is in accord with modern knowledge, and whether, in its present form, it fulfils, or goes beyond, its own essential purpose, which is the protection of the public. I have the utmost confidence in lawyers, and should prefer their opinion on the subject to all the bright ideas of the psychiatrists. They would find, I am sure, that in many respects the present law goes beyond what is needed for ordinary social decency, and that it is, as Mr. Cecil points out, coloured by the remaining vestiges of Hebraic doctrine. The savage prohibitions of Leviticus XVIII need not necessarily be applicable to our highly developed civilisation, nor need we assume that any relaxation of these enactments would defile the whole community so that " the land itself vomiteth out her inhabitants " It would be found perhaps that the Code Napoleon, with its careful distinction between self- regarding and other-regarding acts, with its provisions against public offences or the corruption of the young, offered a more intelligent and humane example. It is surely regrettable that we, who in so many matters are in the van of enlightenment, should in regard to this branch of law be too rigid and obtuse. It is an axiom of legal philosophy that a law which has ceased to correspond to the con- science or intelligence of the community becomes, not merely obsolete in itself, but damaging to the habits of obedience which any ordered community acquires. The psychiatrists have done fine work in enlarging our understanding and exposing prejudice ; let the lawyers now get to work themselves.
* * * * I am by temperament an obedient person, and not among those who enjoy disobedience for disobedience's sake. Yet I am conscious that I must often violate the existing laws of my country. I was boasting the other day that I had not, to my knowledge, broken any of the restrictions, provisions and regulations which have abounded since the war. It was an idle and a foolish boast. " Have you never," I was asked, " thrown crumbs to the birds ? " This question shattered my complacency. My first action every morning, when in the country, is to scatter crumbs upon a bird-table outside the dining- room window. This innocent Franciscan action, I now learn, is an offence against the law. It is salutary from time to time to be reminded of one's own iniquities, and to realise that, whereas we are immensely tolerant of all the vices to which we are ourselves addicted, we regard with horror and contempt those who surrender to tempta- tions by which we do not happen ourselves to be assailed. I contend none the less than I am not a natural law-breaker and that since I left the university I have not actually been found out committing any indictable felony or misdemeanour. There must, moreover, exist within me a certain unrealised fibre of caution, since in spite of the many hundreds, or even thousands, of articles and reviews that I have written, I have only three times in my life been threatened with a libel action. The first occasion was when, in all innocence, I referred to a patent disinfectant in terms which suggested that it contained a poisonous substance. This case was settled out of court. The second occasion was when I wrote a paragraph which the sub- editor headed " It is possible not to be thrilled . . " and which Edgar Wallace asserted exposcd him to ridicule and contempt. And the third occasion was when I suggested that a certain book might do more harm than good. This case actually reached the law-courts but was dismissed as frivolous.
* * It does happen, however, that sometimes, through inattention or a lack of awareness, I have caused pain to people whom I had no desire whatsoever to offend. In every form of communication— whether it be a review, an article, a broadcast or in ordinary letter— the writer, consciously or unconsciously, addresses himself to an individual. I am often aware, when I write a review, that the audience that I have in mind is not the ordinary reader, but the author of the book which I am reviewing. It is to him or her that I address my thoughts. Occasions may arise when this concentration upon an individual audience renders one insensitive to the feelings of others who may indirectly be involved. The other day, for instance, I reviewed Mr. John Dickson Carr's admirable biography of Sir Arthur Conan Doyle. Having some experience of the difficul- ties and temptations which assail a biographer, I went out of my way to express admiration for the skill which Mr. Dickson Carr had shown. I went so far as to say that Mr. Dickson Carr, in disclosing to us the high romantic strain which inspired so much of Conan Doyle's writings and activities, had managed to write " an interesting book about a person who possessed an uninteresting mind." In trying to please the author I caused deep offence to the surviving members of Sir Arthur Conan Doyle's family. When their com- plaints reached me, I re-read my article from their point of view, forcing myself to imagine what I should have felt if someone had written similar words about my own father. I was then appalled by what I had written and by the pain which I had caused. Conan Doyle was a man of the utmost nobility ; he fought for the right with unabated energy and tremendous determination ; he did great good, he redressed injustice, he battled for causes which, but for him, might well have been lost. I had had no desire to sneer at Conan Doyle, still less any desire to offend his family. But owing to this concentration, or suspension, of attention I committed an error of taste and sympathy. For which I am glad to do penance. * * I do not feel, however, that this error requires the ministrations of a psychiatrist. But the incident has shown me that one should never allow the rush and rattle of daily life to blur sensitiveness to the feelings of others. That one should repent such errors even as one should, I suppose, repent all breaches of the law. And that most people, if they recognise and seek to atonq for their occasional deviations from proper conduct, will not find it necessary, when disaster threatens, to appeal piteously to the safeguard of section 77 (3) (f). Is there not a danger that too many psychological excuses will destroy ordinary personal responsibility ?
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