Anomalies of the English law

I. The Morality Bill

The Morality Bill, so designated because of its peculiar provisions, contains some instructive reading. The most questionable provision in the Bill is formed by a portion of sub-section (1), section 9. “If any woman, who is a prostitute or a reputed prostitute, shall permit any boy to have connection with her ... such woman shall be guilty of a misdemeanour, and shall be liable upon conviction on indictment to be imprisoned, with or without hard labour, for any term not exceeding two years.” “Boy” for the purposes of the Bill means a male under the age of nineteen years.

Such a provision could scarcely be conceived in any country other than England or America. No doubt it is well-meant, but in the complex state of society in towns, it is almost incapable of being put into practical effect.

That part of subsection (1), section 19, which makes it punishable for any person to favour or encourage the connection between a boy and a prostitute, is quite above reproach. The Bill in its other provisions is largely protective and meritorious. Its punitive side is also justified: indeed, it is scarcely harsh enough towards the man who lives on the immoral earnings of a woman: “Any person who knowingly lives, either wholly or in part, upon the immoral earnings of a woman (subsection (1), section 13), shall be guilty of a misdemeanour, and shall be liable, if a male, to be imprisoned upon summary conviction for any term not exceeding six months, with or without hard labour, or upon conviction on indictment for any term not exceeding twelve months, with or without hard labour.... Where a person is convicted on indictment of an offence under this section, it shall be lawful for the Court to direct that he be subject to the supervision of the police under section eight of the Prevention of Crimes Act, 1871, notwithstanding that he has not been previously convicted of crime.” The summary conviction limit of six months is inadequate: so, likewise, is the limit of twelve months fixed for the punishment on conviction on indictment. The offence is one of the worst under the criminal law from the human standpoint; it is not only mala quia prohibita but mala per se in the public mind. The scoundrels who traffic in prostitution well deserve a greater punishment than the Bill suggests. “Prostitutes” in this sense does not mean the street women of the West End so much as those girls who are lured from the Continent, on a promise of high wages in London milliners’ shops, and then forced for a time at least by the women who import them to frequent certain so-called theatrical resorts. Many of these girls are not naturally vicious; they are merely the prey of the older women who work in conjunction with male supporters, some of whom take as much as thirty or forty pounds a week from the earnings of one of the victims. The men in question advise on and direct matters through the older women: as a matter of business, when the necessity arises, they also supply persons to perform illegal operations. To give an illustration of the modus operandi, generally, it will be necessary to narrate a passage from the history of one of these atrocious enterprises. A, a Paris shop-girl, aged 19, good-looking and well-formed, was induced to come to this country by B, a South American harlot established in London. The inducement was a very good wage at a West End shop where the English language could easily be picked up, according to report. A, a perfectly respectable girl, agreed to come to London with B, and shortly afterwards she found herself in a flat in Oxford Street (the rent of which was about £7 a week). She was kept at the flat until some evening dresses had been obtained, and then she was taken to a certain variety theatre by B. The girl could speak no English and her character was not self-assertive or strong. She knew nothing about French consuls or the English police, and, then, too, her ordinary wearing apparel had been taken from her by B. She, therefore, found herself on this first occasion, in the brightly-lighted promenade of a “music hall,” with many well-dressed men and women in her immediate vicinity. B was near at hand to keep a watchful eye upon her. A patron of the place, one who was fluent with his French, soon made off with her to the flat in Oxford Street, to which he had been directed by B. (A was herself incapable of supplying the address to the cabman). The girl then explained that she had had her ordinary clothes taken from her by B, that B kept a man in the background, and that she, A, was entirely helpless. At a subsequent meeting, A explained that B took possession of about forty pounds a week, from her, and that the pretext was that it was being banked! The only clothes to which she, A, had access were evening gowns; she was kept without money, too, under constant surveillance, amid conditions which she did not like. The final scene was enacted a few months later, when the person, to whom A had confided her story, went to the flat and found her missing. Her place had been filled by a newly-arrived girl of fifteen, procured by the same process from a Paris shop. On persistent enquiry, A was found in another room suffering from the consequences of an illegal operation, which had been forced upon her by the joint efforts of B and the male director of affairs.

A maximum penalty of twelve months’ hard labour for a scoundrel of the stamp of B’s “lover” is most disproportionate to the offence. Of course, such a man would be liable to a greater penalty, if a girl of fifteen years of age were brought into the case. But on the other facts alone, the law should be less merciful.

Section 10, of the Morality Bill, is worth transcribing in full.

“(1) If any male person shall have connection with a woman who is to his knowledge his granddaughter, sister, daughter, niece, or mother, he shall be guilty of felony, and shall be liable upon conviction on indictment to be imprisoned, with or without hard labour, for any term not exceeding two years, or be kept in penal servitude for any term not less than three years and not exceeding seven years: Provided that if it is alleged in the indictment and proved that the girl was, at the time of the commission of the offence, under the age of sixteen years, the maximum term of penal servitude which the court may inflict shall be ten years.

“(2) If any male person shall attempt to have connection with a woman who is to his knowledge his granddaughter, sister, niece, or mother, he shall be guilty of a misdemeanour, and shall be liable upon conviction on indictment to be imprisoned, with or without hard labour, for any term not exceeding two years.

“(3) If any woman, not being a girl, shall permit her grandfather, father, brother, uncle, or son to have connection with her (knowing him to be her grandfather, father, brother, uncle, or son, as the case may be) she shall be guilty of a felony, and shall be liable upon conviction on indictment to be imprisoned, with or without hard labour, for any term not exceeding two years, or to be kept in penal servitude for any term not less than three years, and not exceeding seven years.”

Where the word “mother” is used in the first part of subsection (1), at sight it appears careless to put, nearer the end of the same subsection, “provided that if it is alleged in the indictment and proved that the girl was, at the time of the commission of the offence, under the age of sixteen years,” etc.

The “Memorandum” preceding the Morality Bill contains an epitome of the whole conception. “The general object of this Bill is to substitute for the Criminal Law Amendment Act, 1885, the Vagrancy Act, 1898, the Punishment of Incest Act, 1908, the Obscene Publications Act, 1857, the Indecent Advertisements Act, 1889, and certain other enactments, a comprehensive measure which shall materially strengthen the law relating to offences against morality and decency.... The chief proposals of the Bill are:—

“1. To raise ‘the age of consent’ to nineteen, the full offence to be felony, and the maximum punishment to be—(a) if the girl is any age under sixteen, penal servitude for ten years; (b) if the girl is over sixteen, penal servitude for five years.

“2. To protect all feeble-minded women and girls, the full offence to be felony, the attempt a misdemeanour, and the maximum punishment to be for the felony penal servitude for five years, and for the misdemeanour imprisonment for two years.

“3. To make it felony to obtain, and a misdemeanour to attempt to obtain, consent by any inducement or threat in connection with employment, the maximum punishment to be for the felony penal servitude for five years, and for the misdemeanour imprisonment for two years.

“4. To make it a misdemeanour for any woman or girl of abandoned character to permit a boy under nineteen years of age to have immoral relations with her, or for any person to favour or encourage such relations, the maximum punishment to be imprisonment for two years.

“5. To make the full offences specified in section two, which relates to procuration, of the Criminal Law Amendment Act, 1885, felonies, for which the maximum punishment is to be penal servitude for five or ten years, according to the age of the girl; and to extend the protection against procuration, and attempted procuration, now enjoyed by girls of good character under the age of twenty-one—(a) to all women of good character; (b) to all feeble-minded women and girls, whatever their character; (c) to all girls under the age of nineteen, whatever their character.

“6. To make the offences specified in subsections (1) and (2) of section three of the Criminal Law Amendment Act, 1885 (viz., procuration by threats or false pretences, etc.), felonies for which the maximum punishment is to be penal servitude for five or ten years, according to the age of the girl; and to make an attempt to procure by false pretences a misdemeanour for which the maximum punishment is to be imprisonment for two years.

“7. To make the offence specified in subsection (3) of section three of the Criminal Law Amendment Act, 1885 (viz., the administration of drugs for an immoral purpose) felony for which the maximum punishment is to be penal servitude for ten years.

“8. To make the offences specified in sections six, seven and eight of the Criminal Law Amendment Act, 1885 (viz., the offences of permitting defilement on premises, of abduction for an immoral purpose, and the unlawful detention for such purpose) felonies for which the maximum punishment is to be penal servitude for five or ten years, according to the age of the girl.

“9. To make an offence under section eleven of the Criminal Law Amendment Act, 1885—(a) when committed with a boy under the age of sixteen years, felony for which the maximum punishment is to be penal servitude for ten years; (b) when committed with a person over that age, felony punishable with penal servitude for five years.

“10. To make the keeping of premises for immoral purposes a misdemeanour punishable summarily with a fine of 50l. and imprisonment for six months, or upon conviction on indictment with a fine of 200l. and imprisonment for two years.

“11. To make further provision for the suppression of indecent, immoral, and grossly offensive literature, pictures, advertisements, etc., the offence to be a misdemeanour punishable upon summary conviction with a fine of 50l. and imprisonment for six months, or upon conviction on indictment with a fine of 100l. and imprisonment for twelve months. Further powers are given to the Postmaster-General.

“12. To make it a misdemeanour punishable upon summary conviction with imprisonment for six months, or upon conviction on indictment with imprisonment for twelve months, for any male person knowingly to live upon the immoral earnings of a woman or girl; and to make it a misdemeanour punishable upon summary conviction with imprisonment for six months for any woman to do so. (The expression ‘immoral earnings’ is defined to mean the earnings of prostitution or of habitual immorality.)

“13. To make it a misdemeanour punishable summarily with imprisonment for six months, or upon conviction on indictment with imprisonment for twelve months, for a male person to solicit persistently for an immoral purpose in a street or public place.

“14. To make ordinary cases of soliciting punishable summarily with a fine of 10l., or with imprisonment for two months without the option of a fine, or upon a second or subsequent conviction with a fine of 30l., or with imprisonment for six months without the option of a fine.

“15. To extend to an amended form the provisions of the Children’s Act, 1908, relating to persons having the custody of girls, and either causing their seduction or not exercising due care, to the cases of girls between the ages of sixteen and nineteen years.

“16. To strengthen the provisions of the Children’s Act, 1908, relating to the punishment of parents and others who allow children and young persons to reside in or frequent premises kept for immoral purposes; and to extend those provisions to the protection of persons between the ages of sixteen and nineteen.

“17. To enable a person who is convicted on indictment of—(a) keeping premises for immoral purposes; or (b) living on a woman’s immoral earnings, being a male; or (c) persistently soliciting, being a male; or (d) selling indecent literature, etc., to be placed under police supervision, notwithstanding that such person has not been previously convicted of crime.

“18. To require courts to recommend for expulsion aliens over the age of nineteen who are convicted of certain offences.

“19. To restrict the punishment for rape to penal servitude for not more than ten years, except under certain aggravated circumstances, when the maximum term is to be fifteen years.

“20. To restrict the punishment for offences under sections fifty-eight and sixty-one of the Offences against the Person Act, 1861, to penal servitude for not more than ten years, and for offences under section sixty-two of that Act to penal servitude for not more than seven years.

“21. To re-enact the Punishment of Incest Act, 1908; to extend its range; and to make such other amendments as are required to render its provisions consistent with the above proposals, the full offence to be felony.

“22. To restrict the punishment of young offenders for any of the above offences (including rape, incest, etc.) by providing—(a) that no person under the age of twenty-one shall be liable to a longer term of penal servitude than seven years, unless he is guilty of rape under certain aggravated circumstances, in which case he is to be liable to penal servitude for ten years; and (b) that no person under the age of eighteen shall be liable to penal servitude.

“23. To render an indecent assault upon a person under the age of nineteen years, cognizable summarily with the consent of the accused, but to increase the maximum term of imprisonment which a court of summary jurisdiction may, under those circumstances, inflict, to six months. (Cf. a similar provision in the Children’s Act, 1908.)

“24. To enable the court to be cleared (representatives of the press being allowed to remain) during proceedings relating to offences against morality or decency, and to enable the worst of such cases to be tried in camera.

“25. To repeal—(a) The Criminal Law Amendment Act, 1885; (b) The Vagrancy Act, 1898; (c) The Punishment of Incest Act, 1908; (d) Sections sixteen, seventeen, eighteen, one hundred and twenty-eight (2), of the Children Act, 1908, and the Second Schedule of that Act; (e) The Obscene Publications Act, 1857; (f) The Indecent Advertisements Act, 1889; (g) Other enactments.”

The comprehensive nature of the Morality Bill can scarcely be doubted after a perusal of the foregoing Memorandum. There is no question whatever, the bulk of the provisions are good. But the penal offence constituted by a prostitute’s intercourse with a boy under nineteen seems somewhat far-fetched. The intention may be good, though it would look peculiar as a section of a statute. There is no need to comment further on the subject here.

Prior to going through the Bill, the writer had intended suggesting the insertion in it of the following provision: “In any case where it has been proved that a girl was induced to sexual intercourse on the promise or understanding that a theatrical or other engagement was to be the result of such intercourse, or where a theatrical or other engagement has already been obtained and is to be continued only on submission to an act of sexual intercourse with a manager, proprietor, or other person in authority, then such person shall be guilty of a misdemeanour punishable with imprisonment with or without hard labour for any term not exceeding twelve months.” On examining the contents of the Bill, he, however, found the contingency provided for in section 8.

“8.—(1) If any male person shall obtain, or if any person of either sex shall aid or abet any male person in obtaining, connection with any woman by any inducement or threat in connection with her employment in any capacity, or with any attempt on her part to obtain employment in any capacity, such person shall be guilty of felony, and shall be liable upon conviction on indictment to be imprisoned, with or without hard labour, for any term not exceeding two years, or to be kept in penal servitude for any term not less than three years and not exceeding five years. (2) If any male person shall attempt to obtain, or if any person of either sex shall aid or abet any male person in attempting to obtain, connection with any woman by any inducement or threat in connection with her employment in any capacity, or with any attempt on her part to obtain employment in any capacity, such person shall be guilty of a misdemeanour, and shall be liable upon conviction on indictment to be imprisoned, with or without hard labour, for any term not exceeding two years.”

There are two classes of enterprise which are peculiarly associated with what may be termed submissive immorality for the purpose of legitimate employment. In the one class the victim’s downfall finds its beginning in connection with theatrical aspirations, whereas in the other class it is indirectly brought about by the demands of fashion. There is reason to believe that a well-formed, good-looking girl, who is anxious to get on the stage will often only accomplish her desire by first submitting to sexual intercourse with her prospective employer. This is not always so, naturally, but it is a general custom in some quarters. In many, if not in most cases, submission means the seduction of a previously virtuous girl. The condition precedent to a theatrical engagement, more particularly on the “musical comedy” stage, is, therefore, of such a character that the harshest measures are needed to put it down. The whole process is iniquitous. On the one hand, there is an eager, inexperienced young woman, foolish enough to want to go on the stage, and on the other, there is a calculating scoundrel who regards her as his certain prey. The second important variation to the offence of carnally knowing a woman, through the influence of her employment, frequently arises in West End milliners’ shops. The employment by male costumiers—that is to say, at the most fashionable shops—of attractive young women, who, for their figures and appearance, are chosen as models to display Paris hats and costumes, gives rise to a whole series of iniquitous conditions which would shame the most indecent novel. Models of the sort referred to are generally subjected to much the same treatment as the “musical comedy” aspirants, but there is this difference—that the former usually obtain the engagement before the “cloven hoof” of their employer begins to show itself.

The searchlight of vigilance would consume itself were it applied to half the subjects which pass through one’s mind as suitable for attack. That is to say, in connection with submissive immorality for the purpose of legitimate employment.

II. Accession and Coronation Declarations and Oaths

This little work would, perhaps, be incomplete without some mention of the Accession Declarations and Coronation Oaths.

It is first proposed to incorporate here the “Declarations of Heads of States” which declarations were collected and ordered to be printed by the House of Commons in May, 1901.

Great Britain and Ireland.

I. Declaration made by the King, on his Accession, in the House of Lords, pursuant to section 1 of the Bill of Rights 1 W. & M. sess. 2, c. 2.

I, EDWARD, do solemnly and sincerely, in the presence of God, profess, testify, and declare, that I do believe that in the Sacrament of the Lord’s Supper there is not any transubstantiation of the elements of bread and wine into the body and blood of Christ at or after the consecration thereof by any person whatsoever; and that the invocation or adoration of the Virgin Mary or any other Saint, and the sacrifice of the Mass, as they are now used in the Church of Rome are superstitious and idolatrous, and I do solemnly, in the presence of God, profess, testify, and declare, that I do make this declaration and every part thereof in the plain and ordinary sense of the words read unto me as they are commonly understood by English Protestants without any evasion, equivocation, or mental reservation whatsoever, and without any dispensation already granted me for this purpose by the Pope or any other authority or person whatsoever, or without any hope of such dispensation from any person or authority whatsoever, or without thinking that I am or can be acquitted before God or man, or absolved of this declaration or any part thereof although the Pope or any other person or persons or power whatsoever should dispense with or annul the same, or declare that it was null and void from the beginning.

II. Oath with regard to the Church of Scotland, taken by the King at his first Council, on 23rd January, 1901.

I, EDWARD VII., King of the United Kingdom of Great Britain and Ireland, Defender of the Faith, do faithfully Promise and Swear that I shall inviolably maintain and preserve the settlement of the true Protestant Religion, with the Government, Worship, Discipline, Rights and Privileges of the Church of Scotland as established by the Laws made there in prosecution of the Claim of Right, and particularly by an Act, intituled An Act for securing the Protestant Religion and Presbyterian Church Government, and by the Acts passed in the Parliament of both Kingdoms for Union of the two Kingdoms.

SO HELP ME GOD.

EMPIRE OF GERMANY.

There is no provision in the constitution of the German Empire for an oath regarding the constitution on the part of the German Emperor; nor does the constitution contain provisions respecting the making of a promise on oath or of other solemn declarations by the Emperor. On the other hand, the King of Prussia, in accordance with Article 54 of the Charter of the Constitution for the State of Prussia, in the presence of the United Chambers of the Prussian Diet, makes a promise on oath “to keep the constitution of the Kingdom fixed and inviolable, and to govern in accordance with it and with the laws.”

UNITED STATES.

The oath or Affirmation taken by the President of the United States before the entrance upon the execution of his office is prescribed by the Constitution of the United States (Article II., section 1), and is as follows:—

“I do solemnly swear (or affirm), that I will faithfully execute the office of President of the United States, and will, to the best of my ability, preserve, protect and defend the Constitution of the United States.”

FRANCE.

The President of the French Republic takes no Oath on the assumption of office.

AUSTRO-HUNGARY.

The Emperor on his Accession takes the Solemn Oath in the presence of both houses of the Reichsrath—

“To maintain the inviolability of the fundamental laws of the Kingdoms and Provinces represented in the Reichsrath and to rule in accordance with these and the common laws of the Empire.”

The Oath taken by the present Emperor as King of Hungary:

“We, Francis Joseph I., by the Grace of God, etc., as Hereditary and Apostolic King of Hungary and its Dependencies, swear by Almighty God, by the Virgin Mary, and by all the Saints of God, to maintain the Churches of God, the municipal liberties of Hungary and its Dependencies, as well as the ecclesiastical and lay inhabitants of those states of every rank, in their rights, prerogatives, freedom, privileges, laws, in their ancient, good and approved customs; to see that justice is done all: to maintain intact rights, constitution, and the legal independence and territorial integrity of Hungary and its Dependencies: to respect the laws of the late King Andreas II., not to alienate nor curtail the dominion of Hungary and its Dependencies, nor whatever belongs to these countries by right or title, but as far as possible to increase and extend them; and that we will do all that we are justly able to do for the common welfare, glory, and increase of these countries. So help us God and all His Saints.”

A statute of 1910, the Accession Declaration Act, “to alter the form of the Declaration required to be made by the Sovereign on Accession,” provides for the use of the following Oath by the King:—

“I (here insert the name of the Sovereign) do solemnly and sincerely in the presence of God profess, testify, and declare that I am a faithful Protestant, and that I will, according to the true intent of the enactments which secure the Protestant succession to the Throne of my Realm, uphold and maintain the said enactments to the best of my powers according to law.”

It is not uninteresting to learn the official position of the Sovereign as defined by statute (24 Henry VIII. c. 12.):

“Whereby divers sundry old authentic histories and chronicles, it is manifestly declared and expressed that this realm of England is an empire, and so hath been accepted in the world, governed by one supreme head and King, having dignity and royal estate of the Imperial Crown of the same:

“Unto whom a Body Politic, compact of all sorts and degrees of people, divided in terms by names of spiritualty and temporalty, been bounden and owen to bear, next to God, a natural and humble obedience.

“He being also institute and furnished by the goodness and suffrance of Almighty God with plenary, whole, and entire power, pre-eminence, authority, prerogative, and jurisdiction, to render and yield justice and final determination to all manner of folk, resiants or subjects within this his realm, in all causes, matters, debates, and contentions happening to occur, insurge, or begin within the limits thereof, without restraint or provocation to any foreign princes or potentates of the world.”

The monarch—Henry VIII.—in whose reign the above was passed swore a Coronation Oath⁠[36] little different to the Oaths of Charles II. and James II., though the Reformation came in between. The Oath taken by Charles II. at his Coronation was worded thus:—

“Sir, will you grant and keep, and by your oath confirm to the people of England, the laws and customs to them granted by the Kings of England your lawful and religious predecessors, and namely the laws, customs, and franchises, granted by the glorious King, St. Edward, your predecessor, according to the laws of God, the true profession of the Gospel established in this Kingdom, agreeable to the prerogative of the Kings thereof, and the ancient customs of this realm?”

King: “I grant and promise to keep them.”

“Sir, will you keep peace and godly agreement (according to your power) both to God, Holy Church, the clergy, and the people?”

King: “I will keep it.”

“Sir, will you (to your power) cause law, justice, and discretion in mercy and truth to be executed to your judgment?”

King: “I will.”

“Sir, will you grant to hold and keep the laws and rightful customs which the commonalty of this your Kingdom have: will you defend and uphold them to the honour of God, so much as you lieth?”

King: “I grant and promise so to do.”

The Coronation Oath of His Majesty King George V.⁠[37] conformed to the requirements of the William and Mary legislation—which has regulated the subject ever since its passage, with trifling variations.

The late King’s Accession Declaration, which gave religious offence to many of his Majesty’s subjects, has been abated, in pursuance of section 1, Accession Declaration Act, 1910.

“The declaration to be made, subscribed, and audibly repeated by the Sovereign under section 1 of the Bill of Rights and section 2 of the Act of Settlement shall be that set out in the Schedule to this Act instead of that referred to in the said sections.”⁠[38]