Note 41 — Chapter III

Professor Sheldom Amos writes on this subject:—“The proceedings contemplated by the Contagious Diseases Acts have been placed among a large and rapidly growing class of proceedings only technically criminal, and instituted for quasi-moral, sanitary, fiscal, or general police purposes. To this class belong cab-regulations, regulations in respect of the cattle-plague, regulations for preventing nuisances in the way of obstructions in the street or on the pavement, regulations in the way of railway bye-laws for securing the safety of passengers, etc. The actions endeavoured to be prevented by the class of laws here involved are not crimes in the sense of being in themselves morally reprehensible, still less abominable, but they are crimes so far as they are absolutely forbidden by the State, and the punishment and prevention of them is undertaken by the State through its own officers. This class of Acts has been very much multiplied of late years, and the proceedings with respect to them are always in the first instance before one or two magistrates. Some of the proceedings are ‘summary;’ that is, the magistrate can assign the punishment at once without appeal; others are summary only in the sense that the magistrate can, if the accused consent, assign the punishment at once, but the case can be reserved for Quarter Sessions and for jury trial in the event of the accused being able to find securities for his appearance. Thus, you see that the claim to jury trial is already practically obsolete for all offences not of such kind as theft, robbery from the person, murder, assaults, treason, forgery, and such like atrocious forms of wrong-doing. The proceedings under the Contagious Diseases Acts are placed among the first of the classes above described, that is, summary proceedings without appeal. I think with you that the extension and multiplication of such Acts and proceedings is a grave constitutional peril, as I have said elsewhere.” Let the reader compare the grave cases tried under the Contagious Diseases Acts with the quasi-moral, sanitary, and fiscal cases adverted to above, and let him mark the conclusions to which the framers of these Acts are inevitably driven through having placed these cases on this category. On the one hand, if, as some of our opponents say, these Acts are directed against vice, and are for the discouragement of the sin of prostitution, then, as we have seen, their framers are guilty of a violation of the constitution by placing cases of real criminality, involving severe penalties, on the list of summary proceedings in which there is no appeal. But if, as by far the greater number of our opponents affirm, these Acts do not treat prostitution as criminal, and these cases properly belong to the category above cited, then to what an awful moral conclusion are they driven on the other hand! To exact an exorbitant fare or to drive recklessly in the streets is a legal offence in a cabman; but to take a fare within prescribed limits and to drive in the streets is no moral offence at all. The same kind of argument holds true of all the technical offences created by the Acts of Parliament above alluded to. It is the exceeding of a certain limit (thereby causing inconvenience to society) which constitutes the legal offence under these economic regulations. But in the Contagious Diseases Acts the case is wholly different. Prostitution itself is morally criminal. The State—placing the Contagious Diseases Acts on the category of merely economical regulations—makes the crime dealt with under them to consist in acting as a prostitute when out of health. It says to the trader in sin, “You are guilty, unless you pursue this trade under certain conditions prescribed by Act of Parliament,” thus plainly implying, “You are not guilty so long as you ply your trade in compliance with the conditions imposed by our Act,”—hence the fearfully immoral influence of such a law upon the people at large! Whatever may be said, on the ground of expediency, against certain recent Acts of Parliament, it can never be said that their influence is directly immoral, for the technical definition by the State of the crime treated in these cases does not involve the recognition of the lawful and innocent character of actions in themselves vicious, condemned by God’s Word, and ruinous to society; finally, it is clear that little or no injury to character is incurred by a false accusation under these economical Acts, whereas a false accusation under the Contagious Diseases Acts is ruinous.