CHAPTER V.

The offences which are punished under other Acts of Parliament, or

according to the common law of England, are all either carefully defined

by these Acts and that law, or else they are such as unmistakably to

define themselves. In these Contagious Diseases Acts, on the contrary,

there is no definition of the offence treated under them, nor do we find

that the offence is such as unmistakably to define itself. On the

contrary, we find amongst the advocates of these Acts, no less than in

society generally, the widest possible variety of opinion as to the

definition of a prostitute. This variety of opinion is only indicative

of the immense difficulty of drawing any marked line as to where a woman

may be justly designated by this name. There are many easy-going persons

of the upper classes who know nothing of the poor, and who talk of this

unhappy class as if they were as easily distinguishable as a negro is

from a white man; but those who are acquainted with the poorer classes

of women know the utter fallacy of this method of judgment, and are well

aware that there is amongst this class of sinners as long and varied a

series as in any other. Moreover, those who have looked at all carefully

into the subject observe, that there are in human nature deeply-seated

causes why this indistinctness of definition is maintained rather than

otherwise; for they can scarcely help being conscious that the real

cause of the difficulty which men who legislate on this subject

experience in arriving at a just determination of that degree of guilt

which is to attach this terrible appellation to a woman, arises in a

great measure from the disingenuousness of men, and their disinclination

that their sex should be acknowledged as the accomplices and companions

of the persons thus defined. Until war be waged against impure men, as

well as against impure women, it will remain impossible to define

prostitution. It is amazing to see in this unequal war waged against the

weaker sex only, how men who legislate for their own interests have, as

it were, talked themselves into the notion, if it were possible to do

so, that these poor women are sinners in this respect in their own

single persons, and that male persons have no part whatever in the

offence.

The attempt to define a prostitute is as difficult as it is, in the long

gradation of character among men, from the most virtuous to the most

vicious, to fix on that point at which a man may be stamped as an

immoral character. Nevertheless, if the purification of society were the

object of these laws, instead of the protection of one sex against the

other, it would be possible, for legal purposes, to define prostitution,

although the definition might be arbitrary. But for the purposes of this

law, which does not aim at the purification of society, but only at the

protection of one sex against the other, it is absolutely necessary that

definitions should be avoided, and that the wholesale treatment of the

weaker sex should be carried on in a maze of indefiniteness and

arbitrary selection.

But without inquiry further into the causes which operate to bring about

this result, it is evident that in the absence of any unanimity of

opinion in the public mind as to what constitutes a prostitute, and in

presence of the difficulty of drawing the line which public opinion

admits, these Acts were bound to supply the definition. In the long line

of women, extending from the most virtuous to the most vicious, there

are two points at which the Acts might, if they pleased, have defined

prostitution. Yet they adopt neither of these definitions. In the first

place, they might have said that every woman is to be called a

prostitute under these Acts who voluntarily and by some avowed method

assumes the name; or secondly, that every woman who is found

associating, under any circumstances, with a man, and who cannot produce

a certificate of her marriage with him, is to be called a prostitute

under the Acts.

Public opinion would not sanction the latter definition.

They did not adopt the former definition because it would not have been

sufficiently inclusive for the purposes of the Act.

What they have really done is to leave the word undefined, and

professing to adopt something like the former definition, thus soothing

the alarms of justly-minded persons, they practically adopt the latter

definition, with such arbitrary omissions as shall, in various places

and at various times, seem good to the policeman of the district and the

justice of peace of the district.[67]

The fact, indeed, which constitutes one of the greatest and most

insidious practical abominations in connection with these Acts is the

fact that, in virtue of this non-definition of a prostitute, the

policeman and justice of the peace ride rampant at their pleasure

throughout all that immense border land of humble society which lies

between the confessed prostitute and absolute virtue. All the objections

which we have urged against these Acts, with respect to the

unconstitutional method by which they decide whether a woman is a

prostitute or not, are intensified tenfold by the absence from the Acts

of any definition as to what constitutes prostitution. A justice of the

peace is therefore set to decide the question of fact as to a woman’s

character, in which decision there are involved, as we have shown, most

grievous consequences; and he is set to do this with absolutely no guide

as to what is the thing which he is to determine the woman to be or not

to be,—no guide either from the Acts in question, or from the concurrent

unanimity of society at large. The result of this is, and must be, that

the definition of what a prostitute is, gradually falls into the hands

of the policeman who accuses her; a grievous and lamentable consequence

of this law, which constitutes one of its greatest oppressions, whereby

the whole operation of the law degenerates into a mere hunting in the

streets by policemen of women suspected by them of unchastity.

In all offences which are punished by law, and which are capable of

graduation, as all offences are, there is established a corresponding

graduation of punishment, which usually varies through very wide limits.

Under the Acts in question there is no graduation of punishment,

although, as we have seen, there is such a graduation of offence that

the law cannot even define where the offence begins. The same punishment

is meted to all, and the same treatment. It may be necessary for the

purposes of this Act that it should be so. If it is thus necessary, the

Act again stands condemned by this very admission. Let the reader

compare this law then with any other summary case, for instance that of

petty theft. If a man steal, theft is defined exactly, and the case is

submitted to the justice, who, taking into account all the circumstances

of temptation, of youth, or of poverty, administers a punishment such as

he may think commensurate to the particular offence. Here an offence

distinctly defined is submitted to a justice, who selects a commensurate

punishment.

But in the case under this Act it is exactly the reverse. It is the

punishment alone which is defined, and the definition of the offence is

left to the justice.

There cannot be imagined a greater opportunity for error, nor a more

utter reversal of all the principles of justice.

To submit such a case even to the superior tribunal of twelve selected

men, in whose election the prisoner has a choice, would, under these

circumstances of indefiniteness of charge, by no means secure for the

accused a just decision. How much less is this likely to be secured

under the circumstances of trial prescribed by the Act?

Let the reader observe too, in passing, the oppressive character of the

Act. The Court is to be closed, unless the woman desires it to be open;

it will generally be painful to the justice that such a case should be

tried with open court. The first action of the law then is to bring the

woman into opposition with that judge who not only, alone, is to

determine the facts on which she is tried, but is also alone to define

the offence.[68]

It may be said by some that should the woman be falsely condemned there

is open to her the means of redress prescribed in this as in all similar

Acts of Parliament. She may sue those concerned for damages, which she

will get if she can prove that she has suffered an injury. I will not

refer here to the great difficulties thrown in the way of any woman

under these Acts obtaining any redress by the special clauses which

refer to that redress. But it would seem as if the whole Act had been so

framed that whereas errors under it should be inevitable, redress should

be impossible. For if she be wrongly condemned for being a prostitute,

how can she get redress for that false condemnation for an offence the

definition of which is absolutely and entirely in the hands of the

person who condemned her?

There is an infinite number of minor oppressions and necessary

illegalities growing out of a law which is itself essentially oppressive

and illegal, such as the intimidation by police, bribery, perpetual

spying and eaves-dropping, the investing of the hospital surgeons with

the powers of magistrate and gaoler in one, and illegal orders, in

contravention even of the Acts themselves, issued by the War Office and

the Admiralty, such as we have already referred to. On these, which are

the vicious fruits of a vicious principle, it is not my object here to

dwell; but there is one point to which, before leaving this part of the

subject, I wish to call the reader’s attention.

Clause 28, Act 1866, runs as follows:—“If any woman, subjected by an

order of a justice under this Act to periodical medical examination, at

any time temporarily absents herself in order to avoid submitting

herself to such an examination, on any occasion on which she ought so to

submit herself, or refuses or wilfully neglects to submit herself to

such examination on any such occasion; if any woman authorized by this

Act to be detained in a certified hospital for medical treatment quits

the hospital without being discharged therefrom by the chief medical

officer thereof by writing under his hand (the proof of which shall lie

on the accused); if any woman, authorized by this Act to be detained in

a certified hospital for medical treatment, or any woman being in a

certified hospital for medical treatment, for a contagious disease,

refuses, or wilfully neglects, while in the hospital, to conform to the

regulations thereof approved under this Act, then, and in every such

case, such woman shall be guilty of an offence against this Act, and, on

summary conviction, shall be liable to imprisonment, with or without

hard labour, in the case of a first offence, for any term not exceeding

one month; and, in the case of a second or any subsequent offence, for

any term not exceeding three months; and in the case of the offence of

quitting the hospital without being discharged as aforesaid, the woman

may be taken into custody, without warrant, by any constable.”

Clause 29, Act 1866:—“If any woman is convicted of, and imprisoned for

the offence of absenting herself, or of refusing or neglecting to submit

herself to examination as aforesaid, the order subjecting her to

periodical medical examination shall be in force after, and

notwithstanding her imprisonment, unless the surgeon or other medical

officer of the prison, or a visiting surgeon appointed under this Act,

at the time of her discharge from imprisonment, certifies in writing to

the effect that she is then free from a contagious disease (the proof of

which certificate shall lie on her); and in that case the order

subjecting her to periodical medical examination shall, on her discharge

from imprisonment, cease to operate.”

A woman, then, the question of whose honour has been determined by an

illegal method of trial, and who has in consequence been adjudged to

undergo these examinations, is, if she refuses to submit to them, sent

to prison, at the end of which time, when she is let out of prison, she

may find the order for her examination still in full force. If she again

refuses, she must again go to prison. The option is continually given

her, at each time she comes out, of submitting to this examination

fortnightly for a year, or of again going back to prison.

This part of the law alone is more worthy of the Spanish Inquisition

than of this free country. There never was a law so calculated at every

point to be the vehicle of persecution; and this iniquitous procedure is

calculated to break the spirit of any woman. Such a law, such a mode of

punishment—close imprisonment for life, with the constantly presented

alternative of a brutal personal violation—such a punishment would be

bad enough if following after the most regular, constitutional, and

careful trial and conviction. But what, in God’s name, are we to think

of it when it follows on a conviction such as I have already described?

That these consequences may not be likely to happen is no satisfactory

answer; that it should be possible for them to happen under the laws of

England is itself sufficiently intolerable.

The whole treatment of the women who are brought under the operation of

these Acts has the general character of those inquisitorial proceedings

in the dark ages, which are condemned by all, and the very record of

which is scarcely now permitted to be revived in any publication. There

are cases of the ancient “peines fortes et dures,” which certainly did

not involve bodily pain, which latter was often preferred by the victims

when a choice was given. The inquisitors knew that to wound the

emotional part of a woman’s nature was oftentimes greater torture than

actual laceration.[69]

In concluding this chapter, I cannot avoid this opportunity of saying,

that although we have been as yet objecting to these Acts on account

chiefly of the innocent, or comparatively innocent, yet we must strongly

assert that, in the application of them to the most deeply guilty of the

class of women who come under their operation, they are equally

dangerous and reprehensible. For this reason, that the essential danger,

which we have all along pointed out, lies in the infringement in any

case whatsoever of our ancient mode of justice—an element of license

introduced into our criminal code being the first step towards the

extinction of liberty for all. When Parliament ventured in the last

century to infringe upon the principles of our constitution, in the case

of Mr. Wilkes,[70] Lord Chatham, in deprecating their action, spoke the

following words: “The character of Mr. Wilkes has very improperly been

introduced into this question; for my own part, I consider him merely

and indifferently as an English subject, possessed of certain rights

which the laws have given him. In _his_ person, though he were the

_worst_ of men, _I contend for the safety and security of the best; and

God forbid, my Lords, that there should ever be a power in this country

of measuring the civil rights of the subject by his moral character, or

by any other rule than the fixed law of the land_.”

Yet, strange to say, we find people whose ignorance is inexcusable,

speaking as if some laxity in the matter of criminal justice towards

this particular class of persons were of little consequence, since they

are judged by common consent to be in a manner beyond the pale of

society. Yet surely a man who has murdered some half-dozen persons,

after the manner of William Palmer, may be equally considered as beyond

the pale of society; yet in this case, and all similar cases, every

possible precaution is taken in the matter of his trial; and the

character alike of our laws, and of those who dispense them, is felt to

be involved in the justice of the verdict given. Such are the necessary

and proper advantages granted by our laws to the most deeply dyed

criminal who happens to be of the male sex. It points to something

radically wrong, both in human nature and in our society, when the mere

accident of the criminals being in this case women makes it possible for

such illogical and loose notions to prevail in regard to what legal

justice owes them. Again, let us call the reader’s attention to the

fact, that no amount of heinousness in the nature of those offences with

which any class of the community may be charged, ought to deprive that

class of the due exercise of impartial justice in regard to them. The

creation of a proletariate class in a nation insures that nation

eventually being smothered in its own mud.

I shall conclude this portion of my subject by drawing attention to the

following exhaustive passage from Lieber, descriptive of the

characteristics of a just form of criminal trial, and to the contrast

which it presents in every particular to the laws which we condemn.

“Among the points which characterize,” says Lieber,[71] “a fair, just,

and sound penal trial, according to our advancement in political

civilisation, we would designate the following:—No intimidation before

the trial, or attempts by artifice to induce the prisoner to confess—a

contrivance which protects the citizen even against being placed so

easily in a state of accusation;[72] the fullest possible realization of

that principle, that every man is held innocent until proved to be

otherwise; bail; a total discarding of the principle, that the more

heinous the imputed crime is, the less ought to be the protection of the

prisoner, but, on the contrary, the adoption of the reverse; a distinct

indictment, and the acquaintance of the prisoner with it sufficiently

long before the trial to give him time for preparing the defence; the

accusatorial process, with jury and publicity, therefore an oral trial,

and not a process in writing; counsel or defensors for the prisoner; a

distinct theory of evidence, and no hearsay testimony; a verdict upon

evidence alone, in pronouncing guilty or not guilty; a punishment in

proportion to the offence, and in accordance with common sense and

justice; especially, no punitory imprisonment, which must necessarily

make the prisoner worse than he was when he fell into the hands of

Government,[73] nor cautionary imprisonment before trial, which by

contamination must advance the prisoner in his criminality;[74] that the

punishment adapt itself as much as possible to the crime and criminality

of the offender; that nothing but what the law demands or allows be

inflicted, and that all the law demands be inflicted—no arbitrary

injudicious pardoning,[75] which is a direct interference with the

government by law.”

The constitution violated · 第 3 / 8 章