Morality and criminal justice
Translated by Peter Winslow
—my most dear Gloucester.
O, the difference of man and man!
To thee a woman’s services are due;
A fool usurps my bed.
Goneril in King Lear 4.2, line numbers 25-28
Were’t my fitness
To let these hands obey my blood,
They are apt enough to dislocate and tear
Thy flesh and bones. Howe’er thou art fiend,
A woman’s shape doth shield thee.
Albany in King Lear 4.2, line numbers 64-68
—die for adultery? No!
The wren goes to’t and the small gilded fly
Does lecher in my sight. Let copulation thrive ...
Lear in King Lear 4.6, line numbers 110-112
If you head and hang all that offend that way but
for ten year together, you’ll be glad to give out a
commission for more heads: if this law hold in
Vienna ten year, I’ll rent the fairest house in it
after three pence a bay.
Measure for Measure 2.1, line numbers 234-238
My business in this state
Made me a looker-on here in Vienna,
Where I have seen corruption boil and bubble
Till it o’errun the stew: laws for all faults,
But faults so countenanc’d that the strong statutes
Stand like the forfeits in a barber shop,
As much in mock as mark.
Measure for Measure 5.1, line numbers 314-320
Thou, rascal beadle, hold thy bloody hand;
Why dost thou lash that whore? Strip thine own back,
Thou hotly lusts to use her in that kind
For which thou whipp’st her.
Lear in King Lear 4.6, line numbers 156-159
Let but your honour know—
Whom I believe to be most straight in virtue—
That in the working of your own affections,
Had time coher’d with place, or place with wishing,
Or that the resolute acting of your blood
Could have attain’d th’ effect of your own purpose,
Whether you had not sometime in your life
Err’d in this point, which now you censure him,
And pull’d the law upon you.
Measure for Measure 2.1, line numbers 8-16
Could great men thunder
As Jove himself does, Jove would ne’er be quiet,
For every pelting petty officer
Would use his heaven for thunder; nothing but thunder.
Thou rather with thy sharp and sulphurous bolt
Splits the unwedgeable and gnarled oak,
Than the soft myrtle. But man, proud man,
Dress’d in a little brief authority,
Most ignorant of what he’s most assur’d—
His glassy essence—like an angry ape
Plays such fantastic tricks before high heaven
As makes the angels weep; who, with our spleens,
Would all themselves laugh mortal.
Measure for Measure 2.2, line numbers 111-124
—but this new governor
Awakes me all the enrolled penalties
Which have, like unscour’d armour, hung by th’ wall
So long, that nineteen zodiacs have gone round,
And none of them been worn; and for a name
Now puts the drowsy and neglected act
Freshly on me: ’tis surely for a name.
Measure for Measure 1.2, line numbers 162-168
If it please your honour, I am the poor Duke’s
constable, and my name is Elbow. I do lean upon
justice, sir, and do bring in here before your good
honour two notorious benefactors.
Benefactors? Well, what benefactors are they? Are
they not malefactors?
Measure for Measure 2.1, line numbers 46-51
Knowing that I have let some “stuff,” and apparently some of the most enticing, escape me weighs heavy on my conscience; yet, weighing heavier still is knowing that I have, in such a high-profile case, neglected the obligation I have to the public of effecting change or vexing scoundrels incapable of being reformed. But there is a feeling of disgust which calls for reservation even with the perpetually ready go-getter, a kind of unproductive indignation that defends itself against any attempt of expression in literary form. For the last month now, I have been choking on the scandal destroying all cultural illusions that has been inflicted upon us by two adultery trials, their management, and their treatment by journalists. It is just not possible to be compelled to say something about everything when faced with the crippling thought of this confusion of improbabilities, this race of brutality and hypocrisy, this administration of justice wherein reason becomes non-sense, benefaction plague. Then again there is relief in the hope that the insanity shall not end any time soon, that the trials shall just drag on, and that the husband shall be selling the transcripts in bookstores—the conscience of the publicist whose pen has slipped from his fingers in the conflict between repulsion and his feeling of obligation. But his conscience also reminds him that sustaining a shameful actuality is really not to be hoped for, but feared, and it rustles him from whim and hesitation and prompts him to an audible protest against any further attempt to trouble our public, already burdened with a thousand earnest worries, with a district Othello’s fits of jealousy.
Shakespeare foresaw everything. The quotes from Measure for Measure and King Lear, which I have chosen as the mottos for this observation, contain, so arranged, the last word on the morality that enabled and exacerbated those trials; and the facetious opinion that the names of a city and an attorney are foretold there should itself prove my belief that the divine power of his genius extends in all directions. I have never held the cry of a poet “O God, what kind of Shakespeare are you!” for blasphemy, but I have always held this author’s declaration that “Shakespeare and the other English kings are resting” in West Minister Abby to be a lèse-majesté against Shakespeare. The moral architects of all peoples would have to get their tools and mortar from him; from his apex, every view of the world offers, be it appraised by the conservative or the progressive, an image pleasing to the creator; culture can be found where ever the laws of a nation are Shakespeare’s thoughts in codified form—at minimum, where Shakespeare’s thoughts are determinative for the actions of the people in positions of state, as was the case in Bismarck’s Germany. Being called upon to erect or to repair the judicial wall dividing good and evil would require seeking Shakespeare’s wisdom; and this wisdom shall show that here and there the old wall was built not on the straight, but on the narrow because it had to navigate the hindrances of a narrow-minded age: hypocrisy and buzzword-induced lunacy. It was with those that our century old legislation has ripened to destruction: the enthusiasm which protects “legal goods” not requiring human protection and patience which has a way of letting things happen have produced circumstances that appear worthy of punishment to anyone with any common sense. Born of the narrow-mindedness of a generation, that legislation has, because it satisfied the worst of people, endured for as long as people have lived by it.
Whoever has, over a three and a half year period, warned of the dangers that the development of the mercantile opinion press conjures for general culture and the well-being of the nation; whoever advocates for the preservation of all conservative powers against the intrusion of a traditionless horde; whoever prefers the police state—and not just in an aesthetic sense—to the establishment of an arbitrary rule by scribbling journalists; whoever confesses that he has, for no other reason than resentment, sided in all areas of public discourse with the bad against the worst, and sometimes even left the good cause in the lurch due to a repulsion against its advocates, who appeared to endanger him more than its opponents would: he may hope that a confession, which may come as a surprise to some, shall be evaluated without suspicion and be respected as the pure expression of his innermost conviction. And so I declare that I, as a friend of the state who time and again demands from the legislation what the industrial spirit of confusion derisively calls “paternalism,” shall first consider the scope of applicability of commercial values. That the strictest of supervisory efforts appear necessary to me here; that I desire new clauses around the necks of the new forms and believe nothing to be more urgent than that the accomplices of the press and the active destroyers of people’s material well-being should find a place within that tightened noose: to emphasize this would mean bringing owls to Athens, con-artists to the stock exchange, and demagogues to Concordia. But with the concern for economic stability, I believe the legislative mission to be almost fulfilled. Lawmakers may still be able to hold to public peace and order, to health and the inviolability of life and limb, and to other tangible and circumscribable “legal goods.” I do not know how many of them are protected under the old criminal code or whether the new one shall increase or decrease their number. But we have too many; and when human beings are allowed to judge human beings, then they should always be mindful of the limits of their cognitive faculties. Any law that rightfully protects religious belief and penalizes its defamation may never be misled into wanting to reach into the depths of man’s bosom, as those depths are sealed to any earthly influence. And it is precisely those conservative minds for whom one turns “clerical sensibilities” into an accusation who should, instead of prompting the judiciary to the supervision of paths psychic or esoteric in nature, know no other aspiration than to ensure that elbowroom remains between earthly powers, which punish, and the representatives of the heavenly powers, which admonish. These conservative minds should, for instance, know that honor is one such legal good and that it is in dubious care with bureaucratic sentinels. Such term would—at minimum and on pain of a clique jurisdiction—have to be employed in connection with a division into easily comprehensible professional honors and circles of honor, if it to were ever to be effected that the law not presume some vague notion of ‘reputation’ where even the most vexing moron can be “belittled” and if it were ever to be effected that the law would admit of the evidence of one’s reputation via the introduction of character witnesses, say—thus making it possible for evidence to be heard on the matter of “belittlement” and, by extension, on the determination of the degree to which one had been “belittled.” Of burlesque effectiveness are any conciliation proceedings by means of which a thief who stole millions can not only feel “offended” by the false and improvable accusation that he also stole five Gulden, but also create for himself a completely valid witness of good character by effecting a penal ruling against the “slanderer.”
Yet, if the legislation, which fiddles about with the definition of the notion ‘honor’ with the shrewdness of a Falstaff, has to accept, just as the boastful good-for-nothing does, that discretion is the better part of valor, then it is completely defenseless in the face of any other enemy who engages in pernicious behavior behind the mask of “morality.” The legislation would have to retire and let the enemy be. But banishing ghosts does not lie within its sphere of control; they cross paths with the legislation where it least suspects they will, and they spring from the earth wherever its feet hit the ground. And again we must turn to Shakespeare who had fools’ wisdom tell the tale of the daft cockney who put eels “i’the paste alive: she knapped ’em o’the coxcombs with a stick, and cried ‘Down, wantons, down!’ ’Twas her brother that in pure kindness to his horse buttered his hay.” Those federal supervisory authorities attacking “immorality” with fire and sword are guilty of such pointless efforts. A crass misunderstanding has led the best of efforts and the purest of intentions onto mistaken paths. Lawmakers were tempted by the task of effecting legal conciliation in connection with a nuisance which caused public immorality to the fallacy that immorality causes public nuisances. And because the public nuisance was actually established through the prosecution of private immorality, the mind searching for the corpus delicti had lost the ability to distinguish between cause and effect. Whoever thinks in accordance with such scheme would not understand that one can advocate for the lex Heinze and at the same time warn of every legislative encroachment upon the most immoral of private lives; that one would like to see the district attorney investigate Kuppelannoncen and at the same time would like to see “the kind of opportunity being taken advantage of” that brings two consenting adults together exempt from punishment; that one wishes to make public obscenity, which bothers whoever does not want and seduces whoever is not allowed to see it, subject to stricter controls and at the same time wishes to let any and all live as they please behind closed doors. But any mind capable of uniting such opposing views goes farther still. It says: “morality as a legal good” is a phantom. Criminal justice does not have anything, whereas district klatsch has everything, to do with legislating “morality.” What the judiciary can attain here is the protection of defenselessness, minors, and health. It is these still badly neglected legal goods that are the cause of concerns presently troubling private life as a matter of state. Lawmakers as snooping reporters airing life’s lingerie in public; justice as an indiscrete servant eavesdropping at bedroom doors and spying through keyholes! That is, at minimum, the role of lawmakers and the nature of the judiciary according to the ideal of a professor active in Vienna today, whose draft of a Swiss criminal code betrays an interest in the nuanced intercourse of the sexes and would like to make any deviation from the horizontal path of virtue subject to criminal sanctions. One could burst out laughing about such penal buffoonery, if it did not demonstrate the omnipotence of the philistine’s mind, from which there is no escape, with such shattering clarity. How would these legal wise men stand their ground when faced with that deeply philosophical innocence once spoken by a child in response to the question “what is improper” (viz., “improper is when someone’s there”). Yet, no one but the adult professor of criminal law blushes about the activities in an alcove—to the extent that one does not wish to derive “public nuisances” from the well-known observation that the walls have ears and from the belief that they could, because of their ears, become completely red in the face. The intrusiveness of a judiciary regulating the relationships of the sexes has only aided and abetted either the worst immorality, which is not to be contemplated under criminal law, or severe offences and crimes. Were it to be taken seriously that those democratic bourgeois sensibilities satisfying the Swiss draft shall exercise influence over the imminent reform of our laws, then one would have to be horrified by the mere thought of the consequences of a cabinet particulier judiciary—the breeding of domestic informantdom and extortionism.
It is always the case that one or several legal goods are relinquished for every one that is protected; there is a question, however, regarding which one is more important: that of a “morality,” the endangerment of which does not represent a visual offence to anyone, or that of liberty, peace of mind, and economic stability. Faced with such a choice, all lawmakers with the courage of their convictions would have to decide in favor of the impunity of homosexuality. And, in so doing, they would even be able to appeal to the petition that three hundred men of scientific, artistic, and societal standing filed with the German Reichstag, whom surely only the lowest of the bourgeois-minded could suspect of “pro domo” talk. I do not know whether this petition sufficiently emphasizes the only aspect that would show its adversaries just how urgent a solution to this problem is. Lawmakers are not satisfied with punishing rape, protecting minors and health; they also want to provide some satisfaction for both morality, which appears to them to have been violated, and good taste, which has been infringed upon, and they even take action any where that the desire and free will of consenting adults have created an agreement. Morality gets—if the delinquent did not coincidentally belong to the best and noblest of the nation (in which case psychopathic propensity is assumed)—its satisfaction: the person given over to perverse acts is morally cleansed by the months long acclimatization to bad food. But meanwhile the wheat of extortion sprouts in the fertile soil of punitive threats against homosexual activity. Yes, the criminal justice professional objects, but the extortionist is of course in for a pound and twice as guilty. Of course, and the district attorney is not at all familiar, as one should think, with the obligation of gratitude to the people who report the crime, whose reward truly consists in their being convicted of two offences. But how, if the extortionist does not turn informant, if the pressure exerted upon the victim has the desired effect and the misprision of criminal charges is bought with daily torments from hell and economic ruin? Here the theory-savant’s wisdom fails, and, accustomed to thinking with the good-for-nothing’s data of “statistics,” he owes us a response, as it is an unfortunate fact that there are still no statistics on unreported reports and successful extortion attempts. And because his impoverished imagination and few life experiences cannot replace his numerical wisdom, he does not suspect that in the same hour he is rejoicing in his world order, which makes immorality and any use of violence subject to punishment, a thousand unfortunate people in his home land are waiting in fear and horror for the approaching extortionist ... Two offences on paper: but what good is that? They indemnify each other, and one aids and abets the other. Open the morality valve, and extortions, which have heretofore simply not been reported and prosecuted, shall also not be committed. Or did one wish not to dispense with a beautiful crime on the grounds that that kind of criminal justice, gone from counting to thinking, would have to despair about the hopelessness of maintaining statistics on uncommitted extortions. ...
In the perpetual empire of sensuous desire, which is even older than the urge for hypocrisy, it is inevitable that lawmakers shall flounder. If all goes well, they amuse themselves in the reporting role of the assiduous police officer who, at night in a quite place, believes to have heard “a coitus-like sound.” But they also do harm. They cover moral pustules with bandages and ointment in business-like fashion, and the social body begins to fester in other places. Just as prosecuting variations on sexual intercourse cultivates blackmail, so too does every attempt to enclose private life with a clausal fence precipitate new immorality, new punishable actions. The nations of culture would perhaps be spared the abysmal scandal of trafficking women if their lawmakers could get angry better than they could blush, if the representatives of shamefulness had never participated in the debate on “prostitution.” Extortion and exploitation shall thrive as long as the risk of criminal prosecution has to be covered by the payment as well, and prohibiting that innocuous mediation, which only creates opportunity and does not rape or cause violence, only increases the chances of the middle-man’s profits: it exerts pressure on wages earned and drives up prices paid. And the knowledge entailed by an excess of morality contemplated under old Prussian common law betrayed humor as stern as it is grim. As a preventive measure against prostitution, Prussian lawmakers deprived women of their right to child support if it could be proven that the women had accepted money in exchange for sex. What did the lords of creation do? They demonstrated their noblesse from back to front; they spared themselves child support and prostituted the women ... For the imminent centennial of the Austrian clausal jungle, an exposition of all crimes, offences, and transgressions which the law and its consonant interpreters are guilty of would actually be educational. I am not only thinking of those painful contrasts, as they are revealed at every turn by systematized injustice. ... No, wherever this criminal code of 1803 is judged on its own merits, the celebratory secular observer would have to react with an auspicious and a dropping eye. That it aids and abets the crime of extortion in such an exemplary way; that it violates the clause prohibiting “the public assertion of any libelous, even if true, facts of private and family life against anyone” and thus causes, in turn, that “negligent and public nuisance” contemplated under the morality clause—these are only the most important cases in which the snake bites itself in the tail. And the imposition of a penalty upon the defendant who has violated an irrelevant legal good is qualified as “malicious damage to third-party property” in the case of monetary relief, but as a “limitation upon personal freedom” in the case of incarceration ...
And now I return to the textbook example of legally facilitated immorality recently brought before the horrified countenances of the Viennese public: to the “Adultery trial P.,” as it was called at the top of column-long reports by a depraved press not wishing to withhold any detail, any fragment, of this precious marriage from its readers. Matters relating to the Compromise, the petroleum cartel, press reform, and even the “honor of the newspaper” had to make room for the disputes of a married couple; and, arm in arm with the fervent husband, justice raced to the scene (which the tribunal had become). Arm in arm with the private person of the plaintiff, who may have felt elevated to the status of counsel for the interests of state because he could establish a calamity, as trite in French farces as it is in real life, with the due process of law. And if, between deed and expiation, you became tired and annoyed by that Saint Vitus’s dance of justice where the husband is allowed to wear his horns as décor and if you had not unlearned shame despite your trust in moral clauses, then you came to the grotesque conclusion that the confessing adulteress—who long before had endured the torments of domestic justice with revolver, whip, and barber shears—was not repugnant at all. What she had suffered was uglier than what she had done, and the court proceedings were in the deepest sense more immoral than any adultery could be because they called upon the public to bear witness to the most secret of possibilities that a married couple’s bedroom has room enough for. If the name ‘Mayer’ were not a collective name, then those trials would have helped it attain immortality. If Meyer’s Lexicon is ever to become old and yellow, then Mayer’s morality codex shall ever enjoy proverbial fame and be a valuable source for cultural anthropologists in establishing the views concerning the rights of the husband and the obligations of the wife that were authoritative in Vienna at the beginning of the twentieth century. A trove of now often cited expressions preserves the memory of the two days during which the penal judge of the District Court of Wieden endeavored to protect, sword clashing, the legal good of the sanctity of a marriage concluded by a marriage broker. Never before was a confession more voluntarily or more willingly made. The defendant explained how she came to marriage by way of a broker and to adultery by way of abuse. After such a beginning any other judge—of those still here in Austria—would have deemed evidentiary proceedings to be superfluous and would have went on to decide the case; if the majesty of the law had—oh mobbled queen!—fleetingly demonstrated its reverence with the most lenient ruling possible (rather than mitigating the assertion of the husband’s obvious need for vengeance, to which no judiciary may yield) and, without any further expert evidence, justified the painlessness of the separation with the worthlessness of the marriage. Any other judge would have, be it by abridgement, be it by closing the trial to the public, made it impossible for journalists on the look-out for scandal, for the reporting and the babbling press (both the daily papers and the funny magazines), to pollute the moral atmosphere of a city for weeks and to distribute the drift sand of an immorality that generously covers the dust of the tried misdeed. Any other judge would have measured the imperfection of the law against his own life experiences, would not have wasted principle pathos on the prosecution of an offence prosecutable only upon a law suit being filed by the injured party, and would not have driven the contrast between the reported and the thousand—thank the heavens—non-adjudicated cases to that immoral degree of clarity upon which mockery begins to ask whether every marriage is now protected and every act of marital infidelity now precluded in the districts of Vienna. ... But not Herr Mayer.
Ever since the natural border dispute between judicial authority and the liberty to mount a defense against judicial authority has flourished—effectively permitting of the obstruction of the Austrian administration of justice at every turn—no opportunity has been neglected within the bounds of these pages to advocate for reducing the independence of the judiciary and to protect plagued trial judges from the unreasonable demands placed upon their patience time and again by the publicity addiction of tactless phrase mongers. Thus am I an unsuspecting judge when I have to confess that Herr Dr. Elbogen was in the right with every word he spoke in both trials in defense against hitherto unexperienced authoritarian excess. And this opinion is of all the more significance, as the painful experience that Viennese daily papers shared that opinion with me was incapable of dissuading me from keeping it. It was incredible. Herr Mayer has revised a bit of the trial report that appeared in the newspapers; and far be it from me to accuse him yet again of using the famous dogma: “I never make mistakes” (which was never spoken because, in reality, Herr Mayer says “I myself never make mistakes”); his senselessness is as clear as day: man errs as long as he strives, from which it follows that young court officials are quite frequently at the mercy of errors. Nevertheless, there was no objection to his: “By the power vested in me, I am sovereign. There is no protest against judicial statements.” There was no objection when Herr Mayer, leader of a pillory justice against the wife and of rehabilitation proceedings for the husband, issued to the latter the following celebratory attestation: “By the power vested in me, I can assure you that nothing in today’s hearing has occurred that would even make it seem that you knew of your wife’s conduct and took advantage of it!” You grabbed your head and asked how the judge came to take over the legal representation of a party and to the promulgation of a decision in a defamation of character trial which the husband was capable of pursuing in the event that some district slanderer had accused him, Mr. Well-To-Do, of being a pimp. There was no objection when, after finding fault with the way the opposition understood her marital obligations, Herr Mayer cut the “adulteress” off with the following words: “You have to answer for yourself today, not your husband!” There was no objection when he deemed inadmissible any questions concerning such topic, calling them “irrelevant and inapplicable,” and when he—the same person who fourteen days later was to preside over certain adventures the husband (whose family honor had been so badly injured) had with his servants—called out on the 25 th of July to a defendant humiliated in every way: “I have to say that you are the only one who has humiliated your husband.” Is Herr Mayer (himself) not making a mistake? And would the law not become completely meaningless, if it were about ascending today upon an adulteress with the heaviest of artillery because her husband filed a law suit and tomorrow upon the adulterer with less heavy artillery because his wife filed one. The “sanctity of marriage” to be protected is naturally that of a marriage which is only unilaterally threatened: here there can be talk of a legal good in need of a protector and still worth the protection. If adultery were not an offence prosecutable only upon a law suit being filed by the injured party and unfaithful behavior in and of itself and prosecutable on the basis of socio-moral considerations, then imprisoning both parties and establishing a prison cell as a marriage suite would make sense. But Herr Mayer would, as the compensatory relief to be effected in the instant case is not provided for by law, at minimum have to compare the level of guilt of the mutually unfaithful spouses; show both of them out of the court room with small monetary fines; and advise that lawmakers had in fact not anticipated the possibility of the law being abused in such manner and that the judiciary refuses to lend its arm in connection with the satisfaction of reciprocating vengeance. Herr Mayer has, however, not emphasized the principle of reciprocity enough. The male plaintiff was treated better than the female defendant, the male defendant milder than the female plaintiff. Of the numerous “high points” of the trial, only the following scene was committed to memory: the wife protests—rightly—against being present at the examination of her husband’s “pregnant lover,” a cook. The judge imposes upon her a monetary fine in the amount of fifty Kronen “due to slandering the witness” and demands that she “immediately” pay the fine; the defendant is now guilty of another crime, that of not having the money with her, in response to which the judge threatens to “immediately commute the monetary fine to incarceration;” the defense pays the fine. Such were the events in a Viennese court room on 25 July 1902.
Fourteen days later the husband gets embarrassed by the testimony of a servant; for the house maid has appeared in order to admit to the adultery that he had committed with her. “It’s all made up,” he cries excitingly jumping to his feet, “how can you say such a thing?”
JUDGE: Calm down, you must remain calm!
DEFENDANT: I can’t. Please, your honor, just look at her, I’m supposed to have slept with such a lanky woman?
JUDGE: Calm down!
The idea that aesthetic evidence establishes an alibi appeared to content Herr Mayer, who believes that only women are subject to morality laws; for shortly thereafter the following, amusing scene took place: a bonne takes the stand confirming that the husband committed adultery with a servant and reveals a pet name that this servant received from the husband. “Yea, when I was in a good mood,” objected the husband, “I gave ’em all those kinds of nicknames, even my wife. Don’t I have some nickname for you?”
W ITNESS : Yes, you’ve called me Dudli.
DEFENDANT: Just tell the truth, you were the most appetizing among all my servants, and you can nevertheless ——.
Here, plaintiff’s counsel let the right word slip: “Harem!”
JUDGE: Herr Doctor, I cannot stress enough that such statements are inadmissible!
DEFENDANT: (emboldened) Pfui!
COUNSEL: Now, now, calm down!
DEFENDANT: Pfui! Pfui!
JUDGE: (to the lawyer) The court censures you for your remark! ...
That a failing marriage failed, that barbaric treatment preceded the “breach of trust,” and that such breach should in principle be expedient for the motivation to seek a divorce—Herr Mayer may have known all this. Perhaps he also knew that he bestowed upon the wife the highest level of ethical acknowledgment with words he directed towards her husband, who had assaulted her lover: “With her confession, your wife wanted to save her lover’s life, even if at the price of her own disgrace.” Nevertheless, it was with amazing tenacity that Herr Mayer held fast to the sensational tone of great retribution, which was to turn the District Court of Wieden into the Last Judgment: “What were you thinking when your wife divulged her own disgrace?,” he asked the plaintiff and allowed him to utter the beautiful words: “I thought she was preparing herself for the last round.” It is with the horrors of the Last Judgment however—which, despite everything that actually did happen, did not befall the poor matron sinner “that night on Mondsee”—that Herr Mayer, the Last Judge, should now execute his office, telling her at the commencement of her examination: “After a long odyssey you are now standing before your judge. Stick to the truth!” I am quoting court reports, which § 19 has yet to contradict; it would still be possible that this sentence shall read a bit differently in the transcript prepared at the expense of the plaintiff and that, before a judge who never makes mistakes, a female defendant was standing who never partook in an odyssey ... But Herr Mayer also took the tone of voluntary humor. And that such was granted the broadest amount of elbow room is obvious from the continuous coming and going of maids, chamber servants, and inn owners all under oath and rushed in from Salzkammergut, not to testify to the guilt of the adulteress, but to confirm her confession before Herr Mayer.
JUDGE: Did he also make his wife get into the lake?”
COOK (stuttering): “Yes, he asked her whether she was ok with getting into the lake.”
JUDGE: But she wasn’t ok with that! (cheerfulness). (To the defendant) Did he in fact force you to cut your hair.
DEFENDANT: Yes, the entire pony tail. What I’m wearing here isn’t real hair.
JUDGE: It’s quite unfortunate for you to have lost such a precious thing, but I’m afraid that that is not the only precious thing you lost that night.
Here spoke the same delicacy that found no words of reprimand as an offensive “hellooo” from the rotunda greeted the divan being carried into the hall, upon which the ill defendant (the judge had to get her from the infirmary himself) was allowed to remain seated. But in insult and earnest this woman was not to be spared any humiliation, and the adulteress suffered, staked on the ridicule of a public centupled by newspaper reports—torture that the middle ages had been incapable of inflicting because it knew only thumbscrews and not the press. Such a rare offence just had to be penalized in exemplary fashion. Long after the adulterous couple confessed, the judge read aloud the love letters they exchanged with each other, and every “liebe Mausi” occurring therein awakened an echo of cheerfulness permeating with outrage; thanks to the severe encroachment upon the private life of confessing defendants—to which encroachment no judge is entitled—there finally seemed to be evidence that love birds do not address each other with any formal term of endearment ... If Herr Mayer’s philosophy were blessed with but a breath of Shakespeare’s intellect, he would have to know that the shrew-like image of Goneril was not caused by Goneril’s breach of Albany’s trust, but by the mistreatment of her father and the poisoning of her sister. Otherwise, some details conspicuously correspond to the facts; compare Goneril’s “A fool usurps my bed” with the response to the remonstration that she allowed herself to be photographed with her lover: “Back then Herr P. was my husband only in appearance!” (The horror of the court reporter starts using space type here, but the psychologist will find the voluntary confession more attractive than the hypocrisy that hallows husbanddom only in appearance as an institution). Even the typical ambience expressed by a postcard read by the judge with the signature “Eugenie von L.”—viz., the connection of one’s own first name with the name of one’s lover—is anticipated at the end of that letter: “[...] There is nothing done if he return the conqueror; then am I the prisoner, and his bed my gaol, from the loathed warmth whereof, deliver me and supply the place for your labour. Your (wife, so I would say), affectionate servant [...] Goneril.” Only Albany avenges himself differently than Herr P. does:
My husband ripped my clothes from my body, whipped me with a dog whip, and tried, after I was tied up, to force me to throw myself in the lake by the villa ...... What I went through then, I don’t know, because I was half-dead; my husband held a list of all my acquaintances up to my face and asked me about each one of them, whether I committed adultery with him; if I said no, he hit me in the face with the dog whip.
“Were’t my fitnes,” Goneril’s husband called out, “to let these hands obey my blood, they are apt [...] Howe’er thou art fiend, a woman’s shape doth shield thee”...
From witness testimony of a Viennese lawyer well-respected in court circles, with the help of whom the defendant had once wanted to get a divorce, Herr Mayer learned that even prior to the injury to marital fidelity there were injuries to her upper arm and that her heavenly husband “had not contested the abuse.” Nor did he claim that the cause of those injuries had been the knowledge of marital infidelity, he claimed that the cause of those injuries had been “property rights matters” precipitated by the mortification “that his wife had not brought him the property promised him;” and he “incidentally insisted that he, as her husband, is justified in treating his wife in such a way.” The majority of the lords of creation, who are so often lords of destruction, may have shared his view. And the assurance of a woman that a relationship with her lover, to whom an inner affinity connects her, “appeared to her to be the only way” to get out of the “miserable marriage” that her husband would not willingly have dissolved—the urge to leave a relationship of bondage would itself seem to some to be an outrage which would not be penalized with sufficient severity with only two months of incarceration. As an operetta refrain do they know Nietzsche’s instruction to bring a whip whenever they visit a woman; but not Zarathustra’s: “And even better still adulterous breaks in marriage over marital bends, marital lies. Thus a woman said to me: ‘Indeed, I broke my marriage through adultery, but first my marriage broke me!’” They are waiting impatiently for the exit the temporarily postponed trial against the husband shall take; that an honest man could become a martyr due to such unavoidable excursions from his bedroom to the nearby servant chambers would truly be “possible only in Austria” .... Otherwise the brutal man-morality of our time would consent in equal measure to a criminal code penalizing everything and to an executive order permitting of selectiveness. The famous Herr—who sent his friends printed invitations to his court date, who demanded that the newspapers report libelous facts from his private and family life, and who on 25 July 1902 in a stifling court room allowed the sanctity of his marriage to be sentineled by a judge and eight police officers—is the most mature type of such a morality .... If the entire Viennese press were as decent as the Neue Freie Presse, which passed over the sensational spectacle with just ten noble lines, then all the newspapers would have been able to offset the lines they did not use to report on an adultery trial against the annual sum total of the Bank Association (the son-in-law of the president was one of the actors); if the entire Viennese press were so decent, then one would not have to have any reservations about the public nature of such proceedings. But all experience presses on toward a legal reform that enforces stricter controls upon judicial go-getters on moral terrain. Nowhere is impartiality harder to preserve, nowhere does ignorance of life or the bitterness of the judge make an easier appearance than they do here, where matters all-too-human are being tried. I wish to accuse the thunderer, who recently made Jove deaf, neither of jaded experience nor of joyless inexperience in matters relating to sexual morality, and far be it from me to suggest that his personality is party to a relationship which—the naturally mad—King Lear dares to establish between a beadle and a lover. By invoking Shakespeare I wished only to remind earthly judges, who can make mistakes, and not representatives of a higher jurisdiction dispossessed of human influence to come to their senses; wished only to demonstrate—and here I thought above all of the police’s treatment of prostituted tax payers of the opposite sex—the skewed and ridiculous relationship between criminal justice and morality. ...
Morality and criminal justice: the great opportunity to show their incompatibility is the adultery trail. The kind of woman who is too beautiful to be faithful but who knows the law too well to be unfaithful lives only in a fatuous doctrine. Fichte, who was supposedly occupied solely with moral matters, was an advocate for eliminating adultery from the criminal code and making it easier for women to get a divorce. The sanctity of marriage would be considerably elevated as soon as it stopped being a “legal good.” It would no longer be insulted by that unholy hypocrisy under which people continue to live who have long recognized that they, as they “put their good foot forward and married,” could commit no other misstep—we would then have to characterize the act of stepping away from any thing we can “step” into on the street of life as a misstep. ... This is, of course, all spoken from the standpoint of times past and, hopefully, still to come, not from the present. This present knows in complete confidence that its ideals are protected by law, perhaps that is why it adheres to them so faithfully and does not want any reform. Any civilization hypocritically allowing women—whom it places between a beast of burden and an object of desire—the right of first salutation, believing marriage for money to be worth striving for and copulation for money to be contemptuous, turning women into whores and then berating whores, valuing women lovers less than unloved women—any such civilization need not be ashamed of a criminal code that calls sexual intercourse a “forbidden understanding.” ...
 Dr. Peter Demetz has my thanks and gratitude for reading an earlier version of this translation; his kind and insightful criticism has been invaluable. Any errors and/or defects this translation may now contain are the sole responsibility of the present translator.
 Kraus does not mention the obligation, he expects that the reader know what the obligation is. It seems justifiable to express what this obligation may be in order to make this expectation understandable for the contemporary English-speaking reader. My understanding here is based upon Edward Timms’s reading of Kraus as having “explicitly reformist” intentions in the first 150 issues of Die Fackel (Timms 36). Citing passages from Die Fackel nos. 33 and 66 from 1900 and 1901, respectively, Timms makes a convincing case that Kraus’s explicit aims in the first 150 issues were “to promote amendment” or, when that fails, “to vex scoundrels, even if they cannot be reformed” (Timms 37). And the present essay fits this description.
 The attorney is Elbogen, as the name ‘Elbow’ from Shakespeare’s Measure for Measure has been translated into German.
 The poet in question is Peter Altenberg. Both quotes are from Altenberg’s Was der Tag mir zuträgt (57 and 284, respectively), which first appeared in 1901, one year prior to the publication of the present essay.
 Cf., I King Henry IV, line numbers 118-119.
 King Lear 2.2, line numbers 315-318.
 Kuppelannoncen: short ads in the newspaper with addresses of prostitutes and brothels.
 The professor in question is presumably Carl Stooß: he was a Swiss criminal law scholar, drafted a criminal code for Switzerland, and—if Wikipedia can be trusted—held a professorship at the University of Vienna between 1896 and 1919. In an untitled commentary from December 1903 (F 149: 8), Kraus also explicitly connects Stooß to a draft of the Swiss criminal code. Kraus writes:
We may not expect from men, who are subjected to the dual pressure of the law and public opinion, that they should have the courage to be decent in these times where the draft of a new Swiss criminal code—the work of Stooß, the professor called to Vienna—would penalize doctors and pharmacists with two to ten years of incarceration for helping a woman willingly have an abortion and where the German Imperial Court has not only decided that simply the making known of one’s desire to have an abortion shall be liable to prosecution, but has also promulgated a damning judgment against a woman who mistakenly believed she was pregnant and attempted to overcome a grossesse imaginaire [my translation].
 An editorial liberty has been taken in the form of omitting a footnote Kraus inserts here, where he quotes, at some length, an article entitled “Sexuelle Zwischenstufen” (“Sexual Intermediaries”) by Albert Moll. The reason for this omission is simple: the present translator does not know enough about Moll or his themes to translate anything by him with any certainty. But there is also the (admittedly subjective) consideration that the footnote does not seem to contribute anything to the present essay that a contemporary English-speaking reader might miss.
 Kraus inserts a kind of explanatory parenthetical here. And despite a number of reasonable efforts to understand the German, this parenthetical remains elusive, even resistant to my understanding. And because the text seems to work without it, I have decided to omit this parenthetical from the present translation. Be that as it may, here is the German and a rough attempt at a translation:
Der hungernde Krüppel, der, zu stolz zum Betteln, von weißen Mäusen »Planeten« ziehen läßt, muß—wegen »Uebertretung des Colportageverbots«—in den Arrest, und die entmenschte Mutter, die ihr Kind »zum erstenmal« röstet, erhält eine Verwarnung
The starving cripple who, too proud to beg, lets the mice in his head pull “planets” and has to be arrested (due to a “transgression of the colportage
 The German reads “mit einem heitern, einem nassen Auge.” It is highly probable that Kraus is quoting from Schlegel’s translation of Hamlet; compare Hamlet 1.2, line number 11, with Schlegel’s translation of Hamlet 1.2, page 15. Because of this probability, I have translated this segment, as if Kraus were quoting from Schlegel’s translation of Hamlet.
 The German reads: “schlotterichte Königin” It is highly probable that Kraus is quoting Schlegel’s translation of Hamlet: compare Hamlet 2.2, line numbers 503-504, with Schlegel’s translation of Hamlet 2.2, page 58. Because of this probability, I have translated this segment, as if Kraus were quoting from Schlegel’s translation of Hamlet.
 The dust imagery here may be an allusion to Shakespeare’s Troilus and Cressida 3.3, line numbers 179-180 (“And give to dust that is a little gilt/More laud than gilt o’er-dusted”). Kraus knew and thought about Troilus and Cressida not long before the publication of the present essay. This play was staged by Adolf Gelber in Vienna in 1902, the year of the present essay (see, for instance, Bevington’s introduction to Troilus and Cressida (92)), and Kraus published a “Theaterrevue” of Gelber’s production at the end of January 1902 (F 93: 15-19).
 Goethe 20. Kraus quotes Goethe here without citation.
 The dialogue from the trials is presented here in “play format,” an editorial liberty taken by the present translator with the express aim of improving readability for the English-speaking reader; Kraus kept the dialogue in prose.
 King Lear 4.6, line numbers 260-264.
 Nietzsche, Also sprach Zarathustra 220. The original reads as follows: “Und besser noch Ehebrechen als Ehebiegen, Ehelügen. So sprach mir ein Weib: ‘wohl brach ich die Ehe, aber zuerst brach die Ehe mich!’” The present translation of this quote borrows from both Walter Kaufmann’s and R.J. Hollingdale’s translation (see Nietzsche, Kaufmann 211 and Nietzsche, Hollingdale 228).
Altenberg, P. Was der Tag mir zuträgt. Fünfte vermehrte und veränderte Auflage. Berlin: S. Fischer Verlag. Reprint from the Collections of the University of Michigan Library, Digitized by Google, and Prepared for Publication by HP, 1913. Print.
Kraus, K. “Sittlichkeit und Criminalität.” Die Fackel, No. 115 (1902): 1-24. Print. (source text)
———“Theaterreveue.” Die Fackel. No. 93 (1902): 15-19. Print.
———Untitled Text. Die Fackel. No. 149 (1903): 8-10. Print.
Goethe, J.W. Faust. Erster Teil. Ed. Göres, J. Frankfurt am Main and Leipzig: Insel Verlag, 1974. Print.
Nietzsche, F. Also sprach Zarathustra. Ein Buch für Alle und Keinen. Ed. Simon, J.
Stuttgart: Reclam, 1994. Print.
———Thus Spoke Zarathustra. A Book for All and None. Ed. and trans. Kaufmann, W. New York: Penguin Books, 1966. Print.
———Thus Spoke Zarathustra. A Book for All and None. Ed. and trans. Hollingdale, R.J. New York: Penguin Books: Penguin Classics Edition, 1969. Print.
Shakespeare, W. Hamlet. Ed. Jenkins, H. The Arden Shakespeare Complete Works. Revised Edition. Ed. Proudfoot, R., Thompson, A., and Kastan, D.S., London: The Arden Shakespeare, 2011: 291-332. Print.
———Hamlet. Trans. Schlegel, A.W. Ed. not specified. Frankfurt am Main: Fischer
Taschenbuch Verlag, 2008. Print.
———King Henry IV, Part I. Ed. Jenkins, H. The Arden Shakespeare Complete Works. Revised Edition. Ed. Proudfoot, R., Thompson, A., and Kastan, D.S., London: The Arden Shakespeare, 2011: 361-392. Print.
———King Lear. Ed. Foakes, R.A. The Arden Shakespeare Complete Works. Revised Edition. Ed. Proudfoot, R., Thompson, A., and Kastan, D.S., London: The Arden Shakespeare, 2011: 633-669. Print.
———Measure for Measure. Ed. Lever, J.W. The Arden Shakespeare Complete Works. Revised Edition. Ed. Proudfoot, R., Thompson, A., and Kastan, D.S., London: The Arden Shakespeare, 2011: 801-830. Print.
———Troilus and Cressida. Ed. Bevington, D. London: The Arden Shakespeare, 1998. Print.
Timms, E. Karl Kraus Apocalyptic Satirist: Culture and Catastrophe in Habsburg Vienna. New Haven: Yale University Press, 1986. Print.