The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction
• Textual Introduction
• Acknowledgments
• Essays On Equality, Law and Education
• Law of Libel and Liberty of the Press 1825
• On Marriage 1832–33?
• Austin’s Lectures On Jurisprudence 1832
• Reform In Education 1834
• On Punishment 1834
• Smith On Law Reform 1841
• The Negro Question 1850
• Statement On Marriage 1851
• Remarks On Mr. Fitzroy’s Bill For the More Effectual Prevention of Assaults On Women and Children 1853
• A Few Words On Non-intervention 1859
• The Contest In America 1862
• The Slave Power 1862
• Austin On Jurisprudence 1863
• Educational Endowments 1866
• Inaugural Address Delivered to the University of St. Andrews 1867
• The Subjection of Women 1869
• Editor’s Note
• Chapter I
• Chapter Ii
• Chapter Iii
• Chapter Iv
• Treaty Obligations 1870
• The Contagious Diseases Acts 1871
• Appendices
• Appendix A: Harriet Taylor, On Marriage (1832-1833?)
• Appendix B: Harriet Taylor Mill, Papers On Women’s Rights (1847-1850?)
• 1.: Rights of Women—And Especially With Regard to the Elective Franchise—By a Woman—Dedicated to Queen Victoria
• 2.: Women—(rights Of)
• 3.: The Rights of Women to the Elective Franchise and Its Advantages
• 4.: Why Women Are Entitled to the Suffrage
• 5.: [reform: Ends and Means]
• Appendix C: Harriet Taylor Mill, Enfranchisement of Women (1851)
• Appendix D: Draft of a Portion of the Inaugural Address (1866)
• Appendix E: Jamaica Committee: Public Documents (1866, 1868)
• Appendix F: Textual Emendations
• Appendix G: Bibliographical Index of Persons and Works Cited, With Variants and Notes

REMARKS ON MR. FITZROY’S BILL FOR THE MORE EFFECTUAL PREVENTION OF ASSAULTS ON WOMEN AND CHILDREN

1853

EDITOR’S NOTE

London: printed “for private distribution,” 1853. Anonymous; not republished. Identified in Mill’s bibliography as “A pamphlet (a few copies only printed for distribution)—entitled ‘Remarks on Mr. Fitzroy’s Bill for the more effectual prevention of assaults on women and children.’ (In this I acted chiefly as amanuensis to my wife.)” (MacMinn, 79.) Occasioned by Henry Fitzroy’s “A Bill for the Better Prevention and Punishment of Assaults on Women and Children,” 16 Victoria (10 Mar., 1853), PP, 1852-53, I, 9-12, enacted as 16 & 17 Victoria, c.30 (1853). The Somerville College copies have no corrections or emendations. For comment, see lxii above.

Remarks on Mr. Fitzroy’s Bill for the More Effectual Prevention of Assaults on Women and Children

the bill brought into parliament by mr. fitzroy, as the organ of the Home Office, enlarging the powers of magistrates to inflict summary penalties for brutal assaults on women and children, is excellent in design; and if in execution it falls short of what is required to deal adequately with the enormity of the evil, the speech of the Mover indicated that he felt its imperfection, and had done as much as he thought it prudent to attempt without assurance of support.^[*] There have since been signs, both in and out of Parliament, that the Minister formed a lower estimate than necessary of what the public would receive at his hands, and that a measure far more likely to be efficacious would have been well received. The following remarks, on what the writer deems the shortcomings of the present Bill, are offered for the consideration of those who interest themselves in its success.

The speech of the Mover showed him to be strongly impressed with the horrible amount of domestic brutality which the law at present existing leaves unrepressed; and he made a selection of recent cases, exhibiting the disgraceful contrast which every reader of police reports is accustomed to see, between the flagrancy of the offence and the insignificance of the penalty.^[†] If any deficiency could be remarked in the statement, it is, that all the instances cited were cases of outrage against women, to the exclusion of the brutalities inflicted both by men and women on the still more helpless children. Without reckoning the frightful cases of flogging and starving which so often come to light, there have been two cases within the last few weeks in each of which a woman, entrusted with the care of an infant three or four years old, caused its death by burning with fire.^[‡] In one of these cases the woman had forced the infant to grasp a red hot coal in its hand, and hold it there for some minutes; and being put on trial before the child had died, but when it was already certain that he would be a cripple for life, was sentenced, not by a police magistrate, but by the Central Criminal Court at the Old Bailey, to—a fortnight’s imprisonment! Such cases prove that there is more amiss than an extension of the powers of the subordinate Courts will remedy; that there is not merely a want of power in the administrators of criminal justice to treat such culprits with a severity sufficient for example, but, in some cases at least, a want of will. Merely to authorize a greater amount of punishment for these offences, at the discretion of a judicial officer, is no guarantee against their continuing to be perpetrated with almost as near an approach to impunity as at present. To increase the penalty is an indication of intention on the part of the Legislature. To see that the intention be fulfilled ought to be the care of those with whom rests the choice of judges and of magistrates.

By the existing law, the utmost punishment which can be inflicted by summary sentence is five pounds fine, or two months’ imprisonment.^[*] The Bill raises this limit to a fine of twenty pounds, or imprisonment for six months, with or without hard labour.^[†] With regard to the fine, when the prisoner cannot pay it, the power of fining is nugatory. When he can, it is revolting to the commonest sense of justice that any one should be able to buy the privilege of inflicting atrocious cruelty by paying twenty pounds. From the newspaper reports it appears to be the practice of police magistrates, not to pass sentence of imprisonment unless they have first ascertained that the prisoner cannot pay the fine. It is only because these criminals are usually of the most reckless and therefore the most needy portion of the labouring classes, that this power of compounding by payment of blood-money does not operate as an actual licence to the offences intended to be repressed.

Remains the penalty of imprisonment, “with or without” the addition of labour. The remark is applicable to the question of secondary punishment in general, and peculiarly to these offences, that the alternative of imprisonment with or without labour is equivalent to that of conviction with or without punishment. Can it be supposed that any amount of imprisonment without labour (unless in the few jails in which the salutary rule of separation of prisoners has been made universal) has a deterring effect upon criminals of the class who come under the proposed enactment? What is a prison to them? A place where, probably, they are better fed, better clothed, better lodged, than in their own dwellings, with an abundance of society of their own description, while they are exempted from the hard work by which they earned their living until the justice of their country undertook to punish them. In return for this release from all the most disagreeable circumstances of their ordinary condition, they suffer the inconvenience of not being able to get gin and tobacco; that is, they are treated exactly as if they were in the union workhouse, except the hard labour. Even alms are not given to the able-bodied at the expense of the parish, though but for a day, without a day’s work in exchange for it;^[*] and surely, now that attention has been awakened to these subjects, it must soon be recognized that when imprisonment is imposed as a punishment, even if only for a day, either solitude or hard labour (for those who are capable of it) ought invariably to be a part of the sentence. In the case of the poor, the addition of labour is not even a punishment. Their life when at large must be one of labour, and generally of a restraint even upon their power of locomotion, almost equal to that of imprisonment. With the addition of labour, imprisonment to the ordinary labourer scarcely amounts to a punishment; without labour it is a holiday.

But neither with labour nor without it, is imprisonment in any form a suitable or a sufficient penalty for crimes of brutality. For these nothing will be effectual but to retaliate upon the culprit some portion of the physical suffering which he has inflicted. The beneficial efficacy of the enactment now in contemplation will, it is safe to prophesy, depend on the adoption or not of Mr. Phinn’s amendment, making corporal punishment a part of the penalty.^[†] The Mover himself did not disguise his conviction that nothing less than this would be adequate to the exigency;^[‡] and it is earnestly to be hoped that the many adhesions which the suggestion has since received, including that of one of the most intelligent of the London police magistrates,^* will induce Mr. Fitzroy to incorporate it in the Bill.

Overwhelming as are the objections to corporal punishment except in cases of personal outrage, it is peculiarly fitted for such cases. The repulsiveness to standers by, and the degradation to the culprit, which make corporal maltreatment so justly odious as a punishment, would cease to adhere to it, if it were exclusively reserved as a retribution to those guilty of personal violence. It is probably the only punishment which they would feel. Those who presume on their consciousness of animal strength to brutally illtreat those who are physically weaker, should be made to know what it is to be in the hands of a physical strength as much greater than their own, as theirs than that of the subjects of their tyranny. It is the moral medicine needed for the domineering arrogance of brute power After one or two cases of flogging for this description of crime, we should hear no more of outrages upon women or children for a long time to come. Probably such outrages would cease altogether, as soon as it became well known that the punishment of flogging would be inflicted for them.

With this penalty in the Act, and a clear understanding on the part of magistrates that it was not intended as a brutum fulmen, nor to be reserved for those horrible cases for which, as a matter of moral retribution, hanging would scarcely be punishment enough; if the administration of the law were such that the ruffianly part of the population would know that they could not give loose to their brutal rage without imminent risk of incurring in fact, and not nominally, the only punishment which they would dread; the enactment would do more for the improvement of morality, and the relief of suffering, than any Act of Parliament passed in this century, not excepting, perhaps, the Act for the abolition of slavery.^[*] But this salutary impression can only be made by rendering punishment prompt and certain in infliction, as well as efficacious in kind; by avoiding, therefore, to let in, by the terms of the Act itself, certainty of delay, and probable chances of escape. This would, however, be an inevitable effect of adopting another amendment, of which notice has been given, allowing an appeal to the quarter sessions.^[†] An appeal is often a necessary evil, but in such a case as this, a palpably unnecessary one. These are not cases in which a magistrate, or two magistrates, are likely to err on the side of inflicting too severe a sentence; there is abundant experience that the danger of error is all on the contrary side.

A government which should pass an act embodying these provisions, would confer a more immediate and a more certain benefit on the community, than it is often in the power of legislators to ensure by any enactment. The beneficial fruits of such a law are not to be measured by the crime and suffering which it would directly prevent, though these would be sufficient to stamp it as one of the most beneficent acts yet done by Government for the improvement of our institutions. A measure such as this, is of wider scope, and still more extensive beneficence. It is a measure of moral education. All parties now acknowledge that it is the urgent duty of Government to provide that the people be educated, could they but discover how it is to be done; and the present Ministry made it one of their pledges, on coming into office, that they would do something effectual for education.^[‡] But even if the measure they contemplate were far more considerable than they probably have it in their power to make it, what chance is there for education, if the schools teach one lesson, and the laws another contradictory to it? The administration of criminal justice is one of the chief instruments of moral education of the people. Its lessons of morality are of the utmost importance for good or for ill; for they take effect upon that part of the population which is unreached by any other moralizing influences, or on which others have been tried, and have failed of their effect. The lessons which the law teaches, it cannot fail of teaching impressively. The man who is brought, or who knows himself liable to be brought, to answer for his conduct at the bar of justice, cannot slight or despise the notions of right and wrong, the opinions and feelings respecting conduct and character, which he there finds prevailing. It is the one channel through which the sentiments of the well-conducted part of the community are made operative perforce on the vilest and worst. Yet, in this day of ragged schools, and model prisons, and plans for the reformation of criminals, the most important instrument which society has for teaching the elements of morality to those who are most in need of such teaching, is scarcely used at all. So potent an engine must necessarily act in one way or another, and when it does not act for good, it acts for evil. Is there any system of moral instruction capable of being devised for the populace, which could stand against the lessons of a diametrically opposite tendency, daily given by the criminal courts? The law and the tribunals are terribly in earnest when they set about the protection of property. But violence to the person is treated as hardly deserving serious notice, unless it endangers life; and even then, unless premeditated intention is proved by such superfluity of evidence that neither ingenuity nor stupidity can escape from admitting it, the criminal generally gets off almost scot free.^* It is of little avail to talk of inculcating justice, or kindness, or self-control, while the judicial and police courts teach by actions, so much more efficacious than words, that the most atrocious excesses of ungovernable violence are, in the eyes of the authorities, something quite venial. The law has the forming of the character of the lowest classes in its own hands. A tithe of the exertion and money now spent in attempting to reform criminals, if spent in reforming the minor criminal laws and their administration, would produce a real diminution of crime, instead of an imaginary reformation of criminals. But then, it must be allowed, it would not serve to fill so much of philanthropic gentlemen’s time.

Not only is education by the course of justice the most efficacious, in its own province, of all kinds of popular education, but it is also one on which there needs be no difference of opinion. Churches and political parties may quarrel about the teaching of doctrines, but not about the punishment of crimes. There is diversity of opinion about what is morally good, but there ought to be none about what is atrociously wicked. Whatever else may be included in the education of the people, the very first essential of it is to unbrutalise them; and to this end, all kinds of personal brutality should be seen and felt to be things which the law is determined to put down. The Bill of Mr. Fitzroy is a step in the right direction; but, unless its provisions are strengthened, it will be rather an indication of the wish, than a substantial exercise of the power, to repress one of the most odious forms of human wickedness.

[[*] ]Henry Fitzroy, Speech (10 Mar., 1853, Commons), PD, 3rd ser., Vol. 124, col. 1417.

[[†] ]Ibid., cols. 1414-16.

[[‡] ]See The Times, 3 Jan., 1853, p. 7 (a report of Mary Ann Oldham’s cruelty to John Gaywood, his death is reported ibid., 1 Feb., 1853, p. 8), and 19 Jan., 1853, p. 4 (Elizabeth Baker’s cruelty to Albert Monks). The Oldham case is the one referred to in the next sentence.

[[*] ]9 George IV, c. 31 (1828), Sect. 27.

[[†] ]“A Bill for the Better Prevention and Punishment of Assaults on Women and Children,” p. 10.

[[*] ]See “Report from His Majesty’s Commissioners for Inquiring into the Administration and Practical Operation of the Poor Laws,” PP, 1834, XXVII, 146-7, which refers to the desired continuation of the “intent” and “spirit” of 43 Elizabeth, c. 2 (1601) in the new poor law (enacted as 4 & 5 William IV, c. 76 [1834]).

[[†] ]Thomas Phinn. Speech in Amendment to Mr. Fitzroy’s Bill. (10 Mar., 1853, Commons), PD, 3rd ser., Vol. 124, col. 1419.

[[‡] ]Fitzroy, speech of 10 Mar., 1853, col. 1414.

[* ]Mr. [John] Hammill. “Though he was much gratified at finding that a bill was now under the consideration of the Legislature for more adequately punishing such atrocious offences, he felt satisfied, from the result of his experience, that nothing short of the infliction of corporal punishment would afford an efficient protection to the helpless objects of such brutality.” (The Times, March 25, [1853, p. 7].)

[[*] ]3 & 4 William IV, c. 73 (1833).

[[†] ]See Phinn, speech of 10 Mar., 1853, col. 1420.

[[‡] ]See John Russell, Speech on Public Business (10 Feb., 1853; Commons), PD, 3rd ser., Vol. 124, cols. 18-19.

[* ]Contrast the sentence of eighteen months’ imprisonment, passed a few days ago, at the Norfolk Assizes, on a man [Samuel Horth] who had attempted to murder a woman [Ann Proudfoot] with a pitch plaster, under about as revolting a combination of circumstances as imagination can conceive, with fourteen years’ transportation, awarded on the same day, by the same judge [Jonathan Frederick Pollock], for stealing to the value of a few pence. [See The Times, article on the Norfolk Circuit, 21 Mar., 1853, p. 7. The Morning Chronicle, 21 Mar., 1853, p. 8, agrees with The Times in saying that on the same day, 18 Mar., Pollock sentenced William Jarvis to ten years’ transportation for defrauding an insurance company by burning his own house; neither gives the information Mill cites.]