The constitutional iniquity involved in all forms of the regulation of prostitution

THE CONSTITUTIONAL INIQUITY
        INVOLVED IN ALL FORMS OF THE REGULATION OF PROSTITUTION.


                      BY MRS. JOSEPHINE E. BUTLER.

The moral aspect of this question is undoubtedly the most important.
There is, however, another aspect of it closely allied with the moral
side, which is of scarcely less importance, namely, the constitutional
and legal view. The late Professor Sheldon Amos, Professor of
Jurisprudence in the London University, exposed this side of the subject
fully in his book, “Laws for the Regulation of Vice” (Stevens and Sons,
London). A great legal writer, Mittermayer, says, “It is more and more
acknowledged that the penal code of a nation is the keystone of that
nation’s public law.” Another great authority on law, Montesquieu, says,
“It is upon the excellence of the criminal laws chiefly that the liberty
of the subject depends; and these words, ‘liberty of the subject,’ what
do they not include?”

Now the system of State regulation of vice with which we are dealing is
everywhere, and in whatever name embodied, a piece of penal legislation
of the most severe and repressive nature. By these regulations is
erected an arbitrary tribunal before which are tried certain
arbitrarily-created offences. The inventors of this system of regulation
have invented new crimes, and attached to them new and terrible
penalties, till recently unheard of in our country; and in the whole
treatment of these newly-invented crimes they have introduced an element
of dangerous laxity into the criminal code of England, and of every
country in which there exists a just criminal code, which threatens the
stability of justice throughout the whole of jurisprudence.

It may be well to consider for a moment, carefully, the meaning of the
word “constitutional;” the more so, as people are not even yet awake to
the tremendous issues at stake in the case before us. The controversy
throughout Europe and in our own colonies may be considered as a
question of constitutional and legal rights. A profound thinker and
writer, Lieber, enumerates the points of what we call “constitutional
law,” which characterise a fair, just and sound penal trial, and if we
compare this picture point by point with the principles and practice of
the regulations we oppose, we shall find that these regulations are
wanting in every one of the characteristics of a fair, just and sound
penal trial. The following are the points:—

  No intimidation before the trial;

  No attempt by artifice to induce the prisoner to confess, or to
      incriminate himself or herself;

  Every contrivance which protects the citizen against being placed too
      easily in the position of an accused person;

  The fullest possible realisation of the principle that every one is to
      be held innocent until proved to be guilty;

  A total discarding of the principle that the more heinous the imputed
      crime, 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 the
      indictment a sufficiently long time before the trial to give him
      time to prepare his defence;

  The accusative process, with publicity, and not a process in writing;

  Counsel, or defence, for the prisoner;

  A distinct theory, or law, of evidence, and no mere hearsay testimony;

  Verdict upon evidence alone;

  A punishment in proportion to the offence, and in accordance with
      common sense and justice;

  Especially, no punishment which must make a prisoner worse than he or
      she was before they fell into the hands of the Government;

  The accusative as opposed to the inquisitorial procedure, carried out
      with good faith, requires that the accusation shall not be made by
      the Executive, but upon information by whomsoever made, through an
      act, which itself includes a guarantee against frivolous and
      oppressive accusations; for be it remembered that arrest and trial
      themselves, though followed by acquittal, are a hardship.

Now the English Constitution during the present century at any rate has
provided all these conditions of a just penal code, except while the
Contagious Diseases Acts disgraced our Statute Book.

The above Acts, and all similar laws and regulations, are utterly and
entirely opposed to the above-stated principles; they are a deadly blow
at the very heart of these principles, and they are not worthy of the
name of laws. It behoves every citizen who rules his life by the
commands of the Great and Eternal Law-Giver to oppose himself to these
base laws, these bastards amongst the legitimate laws of our country.
These Acts and all similar regulations of prostitution, allow, and
enforce, the accused to incriminate herself. They sanction her being
intimidated or persuaded to write herself down as guilty before she has
had any kind of trial whatever. (This was done in England by means of
what was ironically called a “voluntary submission.”) They hold the
accused to be guilty until she can prove herself innocent (and that in a
matter in which it is impossible, except by some very dreadful
alternative, for a woman to prove her innocence.) They condemn and
punish on suspicion merely (on the suspicion of the police only) and no
positive proof is required. They grant no open trial. They imprison
arbitrarily, and again and again. They require no witnesses other than
the suspecting and accusing Government-paid spy-police. They allow the
accusation to be made by the Executive. They require from the Executive
no reasons whatever for the suspicion and the accusation. They try the
suspected and accused persons not in open court, but in a secret court.
Finally, they make redress all but impossible for persons who have been
falsely accused and cruelly outraged.

Such is a general outline of all systems of regulation and protection of
prostitution.

Such laws and regulations eat like a cancer not only into the morality
of the nation which allows them, but into its political life. If we once
admit the principle that our sacred legal and personal rights may be
surrendered, even in the case of the most despised members of the
community, then our boasted jurisprudence totters to its downfall, and
our freedom will soon become a thing of the past.

The outrages practised upon the persons of women periodically under all
these systems is confessed by all to be the central and essential
feature of them, the _sine qua non_ of the whole fabric. Concerning the
illegality of this act of enforced personal examination, considered from
the point of view of the English law, we consulted some twenty years ago
an able jurist, Sir Hardinge Giffard, now Lord Halsbury, the late Lord
Chancellor. We asked of him a distinct legal opinion, which, coming from
such a source, must be authoritative. Lord Halsbury was then not in
sympathy with our agitation against this system, but he was a just man
and a learned jurist. The following is his opinion, given in writing:—


  “I entertain no doubt that the order for examination (in the cases
  cited) is illegal. No trace of the existence of any such power as this
  order assumes is to be found in any book of authority. _Such an order
  is contrary to the whole spirit and principle of our law._ I am of
  opinion that the Coroner’s power is simply to detain by his warrant
  all suspected persons safe in custody. As ancillary to that purpose of
  detaining in safe custody, whatever is reasonably necessary for that
  detention would be justified, and also such an examination of the
  person as would prevent the accused person escaping, either by self
  destruction, by prison breaking, or by corrupting the gaolers; and for
  that reason, as a matter of prison regulation, it is probably lawful,
  and even apart from Acts of Parliament giving any such power, to
  search for offensive weapons, files, tools, or the like, or money, and
  while the accused is in custody, to keep such articles from him.

  “The bodily examination, however, is _a search of the person for
  evidence_, and seems to me to be wholly contrary to law.

  “I need hardly say that our law considers all persons innocent till
  they are proved to be guilty; and, further, that the law invests _the
  person of everyone of the Queen’s subjects with its protection against
  the merest touch_.—(Signed) HARDINGE GIFFARD, The Temple, London.”


 To be obtained at the Office of THE BRITISH, CONTINENTAL, AND GENERAL
             FEDERATION, 1, King Street, Westminster, S.W.

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                          TRANSCRIBER’S NOTES


 ● Typos fixed; non-standard spelling and dialect retained.
 ● Enclosed italics font in _underscores_.