Legally emancipating Women: 3

Prostitution and the Contagious Diseases Acts

Growth in population and in the corresponding preference for urban living mobilised an increasing degree of state intervention in the private lives of its citizens. Sanitation and housing, water supplies and the control of disease, all became subject to government directive in some way during the century, alongside the cross-over from the definitely public to the obviously private. Government’s role was an increasingly prescriptive one laying down acceptable sexual behaviour and policing sexual relations through laws governing such areas as prostitution, homosexuality and contraception. In many respects, the state assumed the role previously played by the church. This can be seen in its sanctioning marriages and its pronouncements as to the grounds on which divorce was valid, in its defining the forms of licit and illicit sexual behaviour and in its treatment of prostitution[1].

Legislation and repeal

In the urban context, increasing anxiety was expressed over the perceived increase in prostitution and its corollary, of venereal disease. Military reports had reported a steady increase in venereal infections among the men since the 1820s. A series of government inquiries in the 1850s and 1860s, precipitated by the Crimean War, testified to the seriousness with which the dual problems of VD and sexual immorality among the lower ranks was regarded in official circles. In 1862 29 per cent of all army men admitted to hospital and 12.5 per cent of all naval hospital admissions were for sexually transmitted diseases. From the 1840s public anxiety had also been focused on prostitution, the ‘great social evil’, by studies from evangelical clerics and doctors and by rescue and reform societies campaigning for a police crackdown on the London streets. Attempts to subject enlisted men to periodic genital examination met with considerable rank-and-file resistance and government turned instead to the regulation of the women with whom soldiers and sailors consorted leading to the passage of the Contagious Diseases Acts of 1864, 1866 and 1869 [hereafter CDA].

The 1864 CDA applied to a number of naval ports and army garrison towns in England and Wales. Under its provisions, both police personnel and medical practitioners [acting under the direct supervision of the War Office and the Admiralty, rather than the local constabulary] were empowered to notify a justice of the peace if they suspected a woman of being a ‘common prostitute’. The woman would then be apprehended and taken to a certified hospital for medical examination, where she could be detained for up to three months to effect a treatment if the examination proved positive. A woman’s refusal to co-operate with what was effectively a suspension of habeas corpus could lead to a prison sentence of one month, doubling for any subsequent offence. Infringement of the hospital rules, or quitting without medical consent, also carried penalties of up to two months imprisonment. In apprehending a ‘common prostitute’, the police relied on certain indicators of guilt: residence in a brothel; soliciting in the street; frequenting places where prostitutes resort; being informed against by soldiers or sailors; and lastly, the admission of the woman herself. There were also penalties for brothel keepers.  The CDA 1866 and 1869 extended the geographical locations covered by the regulations, while the Admiralty and War Office were now mandated to provide hospital facilities for inspection and treatment. Provision was also made within hospitals for adequate moral and religious instruction of the women and for regular fortnightly inspections of former detainees, while the period of compulsory detention was extended to six months.

Supporters of the acts did not see the principles of state hygiene as contradicting the moral emphases of the public health movement. Far from the state sanctioning male vice by providing men of the forces with a clean supply of women, it claimed that the acts were essentially moral in aim and intention. In reality, the acts were concerned with the regulation of the sexual and moral habits of two particular groups within the urban poor: female prostitutes and the lower ranks of the armed forced. But the tactics used to discipline these two groups were markedly different.  The legislation understandably angered women, and many men, the more so because of the opportunities it afforded the police to harass women. The result was organised opposition to the acts which gained ground during the 1860s and led to the setting up of the Ladies’ National Association for the Repeal of the Contagious Diseases Act in 1869 led by Josephine Butler. The repealers were well organised and effectively vocal. As soon as it was established it issued a strongly worded protest in The Daily News signed by prominent figures like Florence Nightingale, claiming the acts were not only an attack on the civil liberties of all women but also implicated the state in sanctioning male vice. The Shield, a weekly circular giving news of the acts and of protests against them, began publication in March 1870.

The women’s protest was received with expressions of outrage and puzzlement by men within the dominant political culture. Divorce, prostitution and women’s emancipation were designated as outside the parameters of political discourse and MPs customarily prefaced speeches on these topics by apologising to the house for intruding on parliamentary time. Repealers soon grasped this and drew on the only vocabulary able to bear the moral and intellectual weight of their challenge. This was the militant language of radical dissenting religion. Many LNA women came from a background of similar, if less explicitly sexual, moral reform campaigns, anti-slavery and temperance in particular. The recognition that class was an important consideration won them support from working class men fearing the effects of the acts on their own wives and children. In the feminist context, the CDA agitation proved important in crystallising the value of a wider feminist analysis. In the wake of the suspension of 1883 and the final repeal of the acts in 1886, many women choose to concentrate not on older-style feminist campaigns such as those in education, but on obtaining a single moral standard for men and women alike.

The repeal campaign in retrospect

The issue that concerned Victorian feminists in the 1870s and 1880s was what the proper balance should be between state intervention and individual liberty. The passage of the Contagious Diseases Acts in 1864, 1866 and 1869 crystallised much feminist thinking and led to the development of the Ladies’ National Association for the Repeal of the Contagious Diseases Acts [LNA] in 1869 as the leading pressure group for repeal. This was eventually achieved in 1886 following suspension of the legislation three years earlier.

The LNA leadership included veterans of the Anti-Corn Law League and the abolitionist campaigns in which women had forged themselves an important role that stopped short of feminism. The timing of the CD Acts was important for British feminism and the campaign against the legislation absorbed women who might otherwise have been attracted to the burgeoning temperance movement with its comparable stress of women victimised by male vice and power[2]. The consequence for the LNA was that its critique of male-dominated society was far more radical. In contrast to the feminist organisations of the 1850s and 1860s, the LNA, like the suffrage movement of the 1870s, was national in scope rather than London-based, claiming 92 local associations in 1882. The LNA was particularly strong in big cities where prostitution was widespread and in middle class, Nonconformist families.

However, there was a tension between married and single women within the repeal campaign and within feminist agitation generally. Married women received priority in the agitation for property law reform, single women in the push for employment and educational gains. In was the divisive British emphasis on a limited suffrage that would disproportionately benefit single women may have strengthened the determination of married women in the LNA to take the lead on matters where there sexually inexperienced sisters were at a disadvantage.

Josephine Butler embodied the background and preoccupation of the LNA leadership. She was the daughter of a Northumberland agricultural reformer and abolitionist, married to a supportive Anglican clergyman and educator established in Liverpool. She could speak for the middle class provincial activist independent of the London elite. Like many women who undertook moral reform, religious conviction and faith drove her. She had not herself been an abolitionist but she shared with anti-slavery activists’ empathy with powerless fellow-women debased by circumstances. The LNA attracted some working class women to its meetings and Mrs Butler, together with its other middle class leaders, stressed that repeal was essentially a women’s cause and a cause of all women. Butler stressed medical moral and constitutional arguments against the CD Acts. The underhand ways in which they were passed. Their failure to detect or check venereal disease; the unfair way in which they penalised women but ignored her better-off client; the infringement of women’s civil liberties. The attempts to condone sanitise and regulate sin; and the physical results that might be visited on innocent married and unmarried women. The Acts were, she maintained, a mockery of formal Victorian veneration of womanhood.

Middle class evangelists had worked for the poor since the early part of the century, attempting to stamp out their alleged immorality. Leading repealers took a far more direct and, on occasions, dangerous action. They believed in the power of united womanhood and openly worked with, as well as for, the objects of their concerns. They sought out registered prostitutes, gave them practical help and moral support in opposing the legislation. Feminists of the LNA supported the contemporary campaign for female doctors and challenged male doctors, politicians and army men with a number of telling points. First, they denied the naturalness of male lust and the double standard of morality for the sexes. They rejected the commonly held view, directed at middle class women, that prostitutes in the public sphere protected virtuous females in the private sphere against unreasonable sexual demands and argued that all women were vulnerable to sexual exploitation within their profession of marriage and that men should raise themselves to women’s levels of sexual self-control.

Secondly, activists condemned MPs’ prurient interest in the sordid matters raised by the repeal campaign and criticised doctors’ insistence on internally examining arrested prostitutes. The support for the CD Acts by Elizabeth Garrett who, like male doctors, put checking disease before defending liberty, was an embarrassment to the LNA that was not concerned with the control of venereal disease. Thirdly, feminists argued that a Parliament of rich men was unfit to legislate for poor women on such matters, contrary to the politicians’ assertions that they looked after the interests of disenfranchised females. Feminists resented the way in which women were defined only in relation to men and motherhood. Men predictably objected to changing a state of affairs from which they benefited considerably.

There were problems of emphasis. Some repealers argued that prostitution was a result of women’s exclusion, by men, from most rewarding and reliable work. Others, however, focused on its immorality and, in presenting the prostitute as a helpless victim of male lust, drew attention away from her social context and attitudes to the institution thereby reducing the woman at the centre of their fight to an abstraction. The LNA leadership and rank and file also had different priorities: the former stressed the importance of political agitation while local workers, outside exceptional branches such as Bristol, highlighted religious objections to regulation. It was these individuals, concentrating on the less controversial and well-established work of providing refuges for prostitutes, who formed the backbone of the more repressive purity campaigns of the 1880s and 1890s.

The campaign against the CD Acts did not destroy the double standard of morality for the sexes any more than it materially improved the position of prostitutes. Politicians may have become disenchanted with the CD legislation and tired of the struggle in provoked, but they had not been persuaded that Parliament should abandon other attempts to regulate vice. Women were divided on the issue. Rescue work attracted both feminists and non-feminists members of the LNA, and women outside the Association. It reinforced those notions about feminine mission and moral superiority that had encouraged female community and justified women’s involvement in reform earlier in the century. During the 1880s and 1890s it led some of them, mobilised in a host of social purity groups like the National Vigilance Association to believe that legislation could be used to ‘force people to be moral’.

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[1] There is a growing literature on prostitution. The best starting point is Judith Walkowitz Prostitution and Victorian Society: Women, Class and the State, CUP, 1980 and Paul MacHugh Prostitution and Victorian Social Reform, Croom Helm, 1980 deal specifically with the debate on the Contagious Diseases Acts. Linda Mahood The Magdalenes: Prostitution in the nineteenth century, Routledge, 1990, Eric Trudgill Madonnas and Magdalens: The origin and development of Victorian sexual attitudes, Heinemann, 1976 and Frank Mort Dangerous Sexualities: Medico-moral politics in England since 1830, Routledge, 1987 provide valuable background. Philippa Levine ‘Rough usage: prostitution, law and the social history’, in A. Wilson (ed.) Rethinking social history: English society 1570-1920 and its interpretation, Manchester University Press, 1993, pp.266-292 provides an up-to-date synthesis. Trevor Fisher Prostitution and the Victorians, Sutton, 1997 is a useful collection of sources.

[2] In the United States the rise of abolitionism in relation to alcohol arose at the same time as the CDAs and LNA in Britain. Its critique of male attitudes was far less radical. Had the CD legislation not been passed, it is possible that British feminism would have also taken this route.

Legally emancipating Women : 2

Marriage and property

Feminists campaigning in this arena centred on inequalities and problems relating to the institution of marriage and on efforts to wipe out the double standard of morality based on gender that licensed male freedom an female suppression. The two areas were linked by the legitimation of the double standard enshrined in matrimonial legislation. The high incidence of marriage and its centrality in women’s lives, determining their status whether they were married or not, made it an obvious and important feminist concern. Campaigners embraced the property of married women, their access to divorce, custody of children, violence within marriage and the curious controversy over marriage to a deceased wife’s sister.  It was marriage that remained the common majority experience in women’s lives. The very earliest of all feminist campaigns focused on highlighting the inequalities within marriage: the loss of political and legal status that a married woman exchanged for social status within marriage; the differing moral standards to which wives and husbands were expected to conform; and. their effect on the dissolution of failed marriage.

On marriage, the legal assumption of coverture determined a woman’s loss of all rights of economic independence and property. The eighteenth century jurist laid down the legal relationship: ‘By marriage, the husband and wife are one person in law; that is, the very being or legal existence of the women is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection and cover, she performs everything.’ At marriage, both possession and control of a woman’s property -- including any money she might earn from paid labour -- passed to her husband unless property had been set up in trust for her under the law of equity. The husband’s right to property extended further into the human field as well: the children of the marriage were his children and where a marriage was dissolved, custody was automatically ceded to the man. Married women could neither sue nor be sued, nor enter into controls and her debts and legal wrangles were her husband’s responsibility. He could even set aside her will on her death. Women were disallowed any responsibility or competence within marriage and were tied to a moral standard to which their partners were not expected to adhere. In the few divorce cases heard in parliament before the marriage reforms of the 1850s, few women came forward as petitioners. Where they did present cases involving adultery by their husbands, their bids for divorce were rejected, while adultery on the part of the wife would always be sufficient grounds for a husband’s petition.

In the 1854 Barbara Leigh Smith published a tract on women’s legal disabilities entitled A Brief Summary, in plain language, of the most important laws of England concerning Women, together with a few observations thereon. It was the start of a campaign that was to become one of the more prominent and indeed successful of all feminist agitation[1]. By 1856 a petition bearing 3,000 signatures and demanding a change in the law affecting married women’s property was presented to both Houses of Parliament with the organisation of public meetings on the topic. It is in this context that the Divorce and Matrimonial Causes Act was passed hurriedly in 1857. Before 1857 responsibility for divorce had been vested entirely in the hands of the church. Ecclesiastical law recognised very few grounds for divorce and the only other recourse was the obscure and costly one of a private petition to parliament. Consequently it remained a rare and restricted option with only about 200 such petitions ever being granted. The 1857 Act was passed through parliament very quickly to head off the more alarming prospect of a proposed married women’s property bill. Legislation affecting divorce arose largely from the government initiated Royal Commission on divorce set up in 1850 whilst the less successful attempts to change the law on married women’s property arise directly from feminist lobbying.

The 1857 Act was an unsatisfactory one for the feminists in three respects. First, it had been used as a political football that was to set back the cause of married women’s property by more than ten years. Secondly, the inadequacy of its provision for deserted wives. Finally, the act enshrined the double standards in the grounds in established for securing a divorce. Women’s access to divorce was limited to cases where the husband’s adultery was compounded by further sexual misdemeanours while for the man his wife’s adultery was sufficient cause. There were some 150 divorces per year in the 1860s following the 1857 Act, a surprisingly high proportion of them among the working and lower-middle class [perhaps approaching half]. For 1890 to 1900 this had risen to 582 annually.

The major injustices of the 1857 Act were the subject of little feminist attention in the years immediately following. It only surfaced again when organisations like the Women’s Emancipation Union made divorce reform a plank of their policies in the early 1890s. The Clitheroe case of 1891 was also instrumental in re-opening the wider question of women’s status within marriage. Mr and Mrs Jackson had lived apart throughout their brief marriage and when Jackson returned from New Zealand, his wife refused to live with him. He abducted her and held her captive while a legal suit was set in train. The judges initially upheld Jackson’s claim but this was overturned by the Court of Appeal which set Mrs Jackson free. A husband could not longer physically compel his wife to live with him.

In the previous thirty years, however, the marriage debate centred far more crucially on the property issue. The first married women’s property committee was set up in 1855 but it failed in its legislative attempts in 1856-7. It was an issue that raised interest across class barriers, more particularly in relation to a husband’s rights over his wife’s earnings. The history of the property campaign is essentially a history on the one hand of parliamentary manoeuvre, of bills and amendments through the late 1860s and 1870s, and on the other hard propaganda and lobbying on the part of women. When the first and inadequate instalment of the Married Women’s Property Act finally won royal assent in 1870[2], the campaigners were not mollified and maintained their attacks. Bills and amendments came before parliament in 1873, 1874, 1877, 1878, 1880 and 1881 before finally becoming law in August 1882. The 1882 Act was widely regarded as a victory equalising the rights and responsibilities of women irrespective of marital status[3]. Even after 1882 it is likely that relatively few women had sufficient income or property on which to live conformably alone or with children after divorce.

Of far more central concern in the 1870s was a growing awareness of and anxiety over violence within marriage. Legal opinion did little to prohibit male violence. It was Frances Power Cobbe’s denunciation of wife-abuse, an act she saw as resulting in large part from the degrading pressure of poverty that re-opened the marriage debate in the late 1870s. She argued that the new divorce courts remained an option beyond the reach of poor women, whom she felt to be more at risk. The passage of the Matrimonial Causes Act in 1878 established a class distinction: wealthier women could still obtain full divorces under the 1857 Act, while working women were offered the cheaper but more restricted alternative of a separation order granted through a magistrate’s court, which prohibited the option of re-marriage. Cobbe saw the 1878 act as a means of empowering women. Yet her suggestions were more far-reaching than those actually implemented in the legislation. She argued that the right of separation should be amplified by automatic maternal custody of children and by maintenance orders for a wife and children against the offending husband. From 1883 about 8,000 separation orders per year were being granted. The subsequent history of these changes shows that the option of separation was utilised largely by women while divorce remained primarily a vehicle used by men. The social stigma attaching even to an ‘innocent’ divorced woman in respectable circles [though not to a separated wife in the working class, figures suggest] may have remained a considerable deterrent to ending a marriage.

Another area of feminist protest was whether men’s rights extended over their children as much as their wives. A divorced woman also risked the loss of her children. From 1839 an ‘innocent’ mother might legally be granted care and custody of children under seven. This was extended to 16 in 1873 and from the Guardianship of Infants Act 1886 the welfare of the child rather than the ‘guilt’ or otherwise of the parents was supposed to determine custody arrangements. It was still difficult for a women to prove in court the unfitness of a comfortably off father to bring up his heirs and, if she succeeded, to support them on her own. The financial problem was most acute in case of illegitimate offspring and many feminists believed that the bastardy clauses in the Poor Law Amendment Act 1834 and effective until the 1870s were another means of sanctioning and protecting male vice. The provisions of the 1834 Act made mothers almost wholly responsible for their bastard children, a measure that sat in curious contradiction to the legal power fathers exercised over their legitimate offspring. The Bastardy Law Amendment Act 1872 was carelessly drafted such that mothers had no legal redress against the fathers of children born before the passing of the act. This again catalysed feminist action.

The growing challenge to the conventions of marriage among the middle classes appears to have coincided with a peak of enthusiasm for formal marriage and associated religious ritual among the working classes. Older irregular customs of co-habitation and separation were disappearing except in remote rural areas and illegitimacy rates were exceptionally low. The argument that working class women promoted formal marriage as a source of security does not take account of the enthusiasm of working class men for stable partnerships. Both men and women were dependent for a reasonable standard of living upon a stable relationship.

Some historians have argued that changes to the statutes governing marital relations should be understood in the broader context of legal reform. Mid-century judicial review was certainly an important element of the reforming spirit of these years. However, the issue of married women’s property, where the two systems of common law and equity were clearly at odds, had been the subject of vigorous lobbying for a number of years before the first instalment of reform was carried in 1870. It is difficult, therefore, to interpret it as merely a product of the general zeal for reform. Gradually, it seems, in complex and still incompletely explored ways, divorce court judges were moving towards a conception of marriage as a contract between husband and wife embodying reciprocal rights and obligations, rather than as a relationship of patriarchal dominance and dependence. Nevertheless divorce was still not an easy path for a woman to take and in the circumstances it is surprising that so many had the courage and determination to end their marriages.

Many women cut their feminist teeth within this area of protest and through addressing the problems of property within marriage came a clearer understanding of other aspects of female subjugation. The feminist critique was not on marriage and they did not seek to undermine the practice or prevalence of marriage but to realign the rights of partners within that institution. As the movement grew in numbers and in confidence, and as to analysis of the position of women grew more sophisticated, so it widened its net to other areas of civil disability.

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[1] Important primary sources are Josephine Butler Personal Reminiscences of a Great Crusader, London, 1896, Life of Frances Power Cobbe: By herself, London, 2 vols., 1904. Useful collections of material can be found in Candida Ann Lacey (ed.) Barbara Leigh Smith and the Langham Place Group, Routledge, 1987 on whom see also Hester Burton Barbara Bodichon 1827-1891, John Murray, 1949 and Sheila Herstein Mid-Victorian Feminist: Barbara Leigh-Smith Bodichon, Yale, 1985. Jane Lewis (ed.) Before the Vote was won, Routledge, 1988 provides significant materials for and against extending the franchise to the mid-1890s.

[2] The 1870 Act allowed all wives to retain any property or earnings acquired after marriage rather than, as before, losing them to their husbands.

[3] The 1882 Act allowed women to retain any property possessed at the time of their marriage, thus extending to all women with property a right which the better-off had previously been able to acquire through establishing a trust in equity.