HC Deb 02 April 1873 vol 215 cc468-83

(Mr. Charley, Mr. Thomas Hughes, Mr. Eykyn Mr. Whitwell.)

[BILL 10.] SECOND READING.

Order for Second Reading read.

MR. CHARLEY,

in moving that the Bill be now read the second time, said, its principal object was to protect young females between the ages of 12 and 14. It was not necessary for him to enter at any length upon an explanation of the measure, because the main proposition was assented to in principle last year, a clause to the same purpose having been contained in his Bastardy Law Amendment Bill of last year, and the second reading of that Bill was agreed to without any objection having been taken to that provision. But at a subsequent stage the hon. Member for Armagh (Mr. Vance) having intimated his intention of opposing it, rather than run the risk of losing the whole Bill, he (Mr. Charley) assented to the omission of the clause, intimating at the same time his intention of prosecuting this subject in the next Session. As he had said, the main object of the Bill was to extend protection to girls between the ages of 12 and 14 years. At present the law now afforded the protection he now sought to female children between the ages of 10 and 12; and the 9 Geo. IV. c. 31, contained a clause, which was re-enacted in the 24 & 25 Vict. c. 100—the Consolidation Statute relating to Offences against the Person—the abduction of an unmarried person under the age of 16 from the possession and against the will of her parent or guardian was made a misdemeanour. Now, his present object was to make that a statutable offence in respect to females between the ages of 12 and 14, which was not at present an offence at common law. For the necessity of such an enactment he would refer hon. Members to the last Report of the Rescue Society which was presided over by the Earl of Shaftesbury, and which was doing good work in London. The statistics given in this document disclosed a most distressing state of things. The number of young girls who had passed through the institution last year was 540; and a reference to their ages would show how much legislation on the subject was required. He had further to urge as an argument why the House should accept this legislation was, that the amendment of the law was required in the interests, not of the rich, but of the poor. The statutes to which he had already referred made the abduction of an heiress under 21 years of age a felony, subjecting the offender to penal servitude; and surely Parliament would not refuse to the female who was poor and defenceless the protection given to her who was rich and powerful. The clause simply proposed to enact that in the 24 & 25 Vict. c. 100, the section relating to this offence shall be read as if the words were "twelve" and "fourteen," instead of "ten" and "twelve." He had also added a clause by which any owner or occupier of a house harbouring any girl under 16 for the purpose of prostitution should be guilty of a misdemeanour, or should be liable to summary conviction. The Bill contained another provision which, though not the main object of the Bill, was nevertheless of considerable importance. At present, in order to recover compensation for the injury inflicted by seduction, it was necessary to proceed upon a legal fiction—the parent or other next friend of the injured girl, and not the injured girl herself, brought the action on the plea that the damages sought to be recovered were for the loss of her service, and it was necessary to prove some service that could be lost before damages could be recovered. The Judges, indeed, had from time to time ruled that the compensation need not be confined to the actual loss of service, but that the wounded feelings of the parent might be taken into account. This, however, was contrary to the strict reading of the law, and there were on record cases where the Court ruled that there was no redress because the girl was in the service of the defendant himself at the time he seduced her, and that there was no evidence that the father benefited by her service; but the Judges, no doubt, were ready to admit the very slightest evidence of service. In order to set this matter at rest he had introduced a clause which enacted, first, that an action for seduction might be brought by the parent or guardian of the girl seduced, and that it should not be necessary for the plaintiff to aver or prove that the girl was in his service at the time of the seduction, or that he thereby lost her services. This did but follow the ruling of the Judges, and made it clear that the damages were to be given without reference to the loss of services—in fact, abolished that fiction altogether. He did not propose to give any action where it did not now lie, except in the case—the seduction of an orphan minor. Here the Bill proposed that an action for seduction might be brought by a guardian ad litem admitted by the Court to sue. The hon. Member for White haven (Mr. Cavendish Bentinck) had given Notice of his intention to move the rejection of this Bill. The leaders of the Conservative party had declared that it was the peculiar function of that party to promote measures of social reform, and relying upon that gratifying assurance, he (Mr. Charley) had introduced several measures of that nature, and by the kind indulgence of this and the other House of Parliament had succeeded in passing them into law, and he trusted he should meet with similar indulgence in his present attempt. The hon. Member for White haven, however, appeared to think that the function of the Conservative party was obstruction. The scenes exhibited in our streets were a disgrace to a nation which claimed to stand in the vanguard of the civilized world, and they were a by-word among foreigners. The best way to remedy existing evils was not to prosecute the unhappy women, but to prevent girls from falling; and if a man betrayed the confidence of these young creatures, let him do it at his peril. If he escaped punishment, this House would at least have the satisfaction of interposing a barrier to prevent the committing of this great wrong.

Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Charley.)

MR. CAVENDISH BENTINCK,

in moving that the Bill be read a second time that day six months, said, his main objection to the Bill had nothing to do with its merits at all—this was an attempt to alter the common law of the country, and it was an attempt which ought not to have been made by a private Member, and which ought not to be sanctioned. The alteration in the law, if made at all, ought to be proposed by a responsible Minister of the Crown after consultation with the Judges and the legal officers. There was no reason why the House should be asked to trouble itself with small tinkerings of the law which could do no good whatever. The hon. and learned Member (Mr. Charley) tried his 'prentice hand last year on the Bastardy Laws, and the only result was that of throwing a number of women with their offspring on the world. The hon. and learned Member, in the Bill now before the House, introduced three new principles—first, a change of the age; secondly, an alteration in the mode of dealing with those who kept disorderly houses; and, thirdly, an alteration in the Common Law with regard to the ground of action mentioned in the latter section of the Bill. If his hon. Friend had confined himself to an alteration of the, age he (Mr. C. Bentinck) would not have opposed the proposal, because he believed that such an alteration might very properly be made; but then it ought to be made on the responsibility of Her Majesty's Government. As to the second principle of the Bill, the 25 Geo. II. c. 26, provided for such cases, for it enabled two householders to lay information against any person who kept a disorderly house. And if that Act was not sufficient there was the 24 & 25 Vict., which accomplished everything which this section of the Bill proposed to do. As to the third principle, by which an alteration of a very material kind was proposed in the Common Law of the land, he confessed he was unable to follow the logic of the hon. and learned Gentleman. It was quite plain that the hon. and learned Member had not, in drafting his Bill, consulted an experienced draftsman, who would have been informed that the pretence of referring to former Acts was highly objectionable. The hon. and learned Member said that the loss of service was a mere fiction, and that it did not prevent substantial damages being given; but if that were so, what was the reason for altering the law of the country? This loss of service, which was no bar to a proper action, was an important safeguard against actions which were not proper, and if it were done away with the door would be thrown open to extortion without limit. He could not believe that Her Majesty's Government could assent to the second reading of this Bill. He had quite as strong a desire as the hon. Member for Salford to prevent injuries from being inflicted on anyone, though he did not pretend to indulge in sentimentality, and he had been compelled to adopt his present course by a sense of duty. If Her Majesty's Government would bring in a Bill on their own responsibility he would be willing to acquiesce in any decision that might be come to. He was sorry that the Home Secretary was not in his place, but he would ask the hon. and learned Attorney General to assist him in getting rid of this tinkering Bill. He begged to move that the Bill be read a second time upon that day six months.

Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months."—(Mr. Cavendish Bentinck.)

Question proposed, "That the word 'now' stand part of the Question."

MR. NEWDEGATE

said, he always did honour to courage in any hon. Member of this House, and he had before now had reason to respect the courage of the hon. Member for White haven (Mr. C. Bentinck). He was far from disputing the right of the hon. Member to oppose this or any other Bill, but he lamented that the hon. Member should have selected this for his opposition, and he regretted still more the ground upon which he had rested that opposition—upon the ground, namely, that this Bill had been introduced by an unofficial Member of the House; and he had broadly laid down, that no private Member of the House was entitled to introduce a Bill for the improvement of the social relations of the country. [Mr. C. BENTINCK: I did not say anything of the sort.] At any rate the hon. Member stated, and he appealed to himself to confirm what he said, that this was a subject which ought to be dealt with only by the responsible Ministers of the Crown; and he added that the hon. Member for Salford (Mr. Charley) who had introduced the Bill, and other hon. Members who attempt to deal with similar subjects, ought to be considered tinkering Members of the House. He thought, therefore, that the interpretation which he first put upon the whole tenor of the speech of the hon. Member for White haven was true, and that he was not very much mistaken. [Mr. C. BENTINCK: You are mistaken.] In what was he mistaken? The inevitable conclusion from the hon. Member's remarks was that unless the Government introduced amendments of the law on subjects such as this, they ought to be obstructed if introduced by anyone else. ["No, no!"] The hon. Member spoke of the Government as the only responsible body in the House. Every Member of the House was responsible, and the House itself was responsible; and that as much for its omissions in meeting the necessities of society by legislation, as for the errors it might commit in its attempts to legislate. He hoped the House would repudiate the novel theory set up by the hon. Member for White haven. The House had gradually accumulated to itself the chief legislative power in this country, and had also while doing this trenched upon the functions of the Executive, and he held that the House had no right to repudiate the responsibility which it had undertaken. Having thus dealt with the general allegation by which the hon. Member for White haven had attempted to inflict an incapacity on the whole of the unofficial Members of the House, he (Mr. Newdegate) agreed with him thus far—that he thought that too many measures were introduced into this House by unofficial Members. This was a Parliament chosen by a new constituency—it was elected under different circumstances from other Parliaments, and he hoped that the unofficial Members of the House would limit their attempts at legislation to measures which they had reason to believe they were capable of dealing with effectually, and of carrying into law. That was the kind of restriction which he trusted the common-sense of this House would impose—for it was quite as necessary to the efficient action of this House, to the independent action of the House, as the introduction of proper measures. He would now pass to the substance of this Bill. There was a part of it—he alluded to the third clause—which the hon. Member for Salford did not seem disposed to insist upon, and he thought he was quite right. The main purpose of this Bill was the protection of girls under 14 years of age. He would not be squeamish in speaking on this subject, nor would he touch upon those religious considerations which might be very well evoked; but he said this to the House—They knew that in this country there was a great excess of female population; and he asked every man in this House whether there was any excuse whatever for the seduction of these children? That was the plain, manly view to take of this question. Apart from all questions of a strict morality, then, this seduction of children was, in every sense, a gratuitous offence, and it was therefore an offence which ought to be visited by punishment. Years ago he supported his late Colleague Mr. Spooner when he introduced a measure for the restraint of seduction; he had never regretted that he did so, and he should on this occasion support the hon. Member for Salford in following—reasonably and cautiously as he believed—in the footsteps of his late Colleague. The hon. Member for White haven had observed that there were some portions of this Bill which needed to be guarded, and in that he agreed with him. But he felt the force of the objection urged by the hon. Member for Salford, to that practical restriction imposed by the present state of the law, which to a certain extent made service—that was, the engagements of the female—to be a condition inseparable from an action on account of her seduction. There could be no question that this fiction had been the occasion of very great abuse. But the House should remember that the principle of this Bill was not so much directed to the repression of that class of crime—that its primary object was the protection of mere children. He thought the case for this Bill was amply made out—that it was for the protection, to a certain ex- tent, of all women, but chiefly for that of children. The hon. Member for White haven said that there was one provision of the Bill which would enable some other persons, than the parents to appear as their legally constituted defenders, and that that might lead to abuse. Well, it would be the business of the hon. Member for White haven and the House to see that such provisions were introduced into the Bill, when in Committee, as should guard against any such malpractices by scoundrelly attornies. But there was another provision imported into other Acts of Parliament which he thought this Bill needed. He thought it ought to contain a clause requiring that the evidence of the child or woman who had been seduced, or who pleaded that she had been injured, should in some manner be corroborated. He thought that this would be a very proper provision to introduce into the Bill when it got into Committee; but he rejoiced in the belief that this House would not, on the Motion for its second reading, reject this Bill, which had been prepared by a competent Member of this House for the protection of mere children from the practices of vile seducers.

MR. MUNDELLA

said, he could not admit the validity of the objection which had been urged by the hon. Member for White haven (Mr. C. Bentinck) that this Bill was brought forward by a private Member instead of the Government; for nearly all questions of social legislation during the last 30 years had been initiated by private Members. He appealed to the House whether the Factory Acts and numerous other Acts for the amelioration of the social condition of the people were not brought in by the present Lord Shaftesbury when he was a private Member. Nor could he agree that the flaw which had been discovered in the Bastardy Law Amendment Act of last Session was a defect which belonged to the measure as originally introduced by the hon. Member for Salford (Mr. Charley) It was entirely owing to the hasty and harassing mode of legislation pursued at 2 o'clock in the morning. While he remained a Member of that House he hoped he should be regarded as one of what the hon. Member for White haven called the "tinkering Members." He had placed his name on the back of this Bill mainly for this reason—because its clauses were directed to the better protection of children against seduction. He entirely endorsed the noble and manly speech of the hon. Member for North Warwickshire (Mr. Newdegate). With every word that fell from that hon. Member he entirely agreed. He had some doubts as to the 4th clause of the Bill, but with respect to the first three clauses he could not see what objection could be made to them. He had sat on the Royal Commission with reference to Contagious Diseases, and there were certain points on which the Commissioners were perfectly unanimous in recommending an alteration of the law. The 59th section of their Report, and the final recommendation it contained had immediate reference to the evils dealt with by the first three clauses of this Bill. He might refer to the evidence of the Chief Constable of Portsmouth and the Matron of Devonport Hospital to show that the ranks of prostitution were recruited from mere children, and might mention as a fact that at Plymouth there were more than 300 children from 12 to 15 on the streets at one time. It had been brought to his notice again and again as an employer of labour that mere children of 12, 13, and 14 years were seduced by men of double their years and in a better position of life. A fearful amount of seduction was going on daily, not only between masters and servants, but in dancing saloons, and other sinks of vice in large towns. In factory towns it was heart-rending to see young girls of 15 who had been seduced, and were about to become mothers. Was it reasonable that while the Factory Act prevented a child from working more than half time till she was past 13, she should be held competent, according to the present theory of the law, to assent to her own seduction at the age of 12? If they were to be treated as children of tender age in one case they ought in another. This was peculiarly a question for the poor. The rich could take care of their children, and they knew what precautions were taken to hedge them round and prevent them from being contaminated by the sights and sounds of great cities, while the young daughter of a poor mechanic, or labourer, had to encounter all the dangers of the streets in going to and from her work, often late at night, and therefore every possible protection ought to be thrown over her by the law. It was quite notorious that a large proportion of the prostitutes in towns were children under 16, and the various police inspectors examined before the Committee on this subject expressed their unhesitating opinion that they were inveigled into brothels by the old prostitutes. He implored the House to pass this Bill, amended if they liked in Committee, so as to give some additional protection to children at all events. He did not consider the other parts of the Bill of such importance; but he should rejoice if anything could be done to lessen the terrible evil that now existed.

MR. STRAIGHT

said, he hoped that the House would allow the Bill to be read a second time, and in saying that he must add that he strongly deprecated the proposition propounded by the hon. Member for White haven, that, in social reforms of the important character contemplated by the present measure, private Members were not to interfere by propounding schemes for legislation. It was a new principle for the guidance of the House he was not prepared to adopt, that when the hands of Government happened to be so full, individual Members competent for the task were not at least to attempt the alteration or removal of defects found to exist in the administration of the law. The hon. and learned Member for Salford (Mr. Charley) deserved the warmest approval for his present effort, and while his Bill was in many respects inartistic and faultily drawn, it was undoubtedly a step in the right direction. As to the second clause, it was open to the well-grounded criticism of the hon. Member for White haven (Mr. C. Bentinck), who justly enough appreciated the difficulty and confusion that must inevitably arise from framing a section in one Act with a reference, for the purpose of construing it, to a clause in some preceding statute. It was most unfair and worrying to the Judges who had to administer the law, and entailed both upon them and others concerned in the administration of justice endless and unnecessary trouble. This, however, was a defect that could be amended in Committee, and did not go to the essence of the Bill. Putting the proposal into plain English, what it contemplated was, that a child of 12 should not be a woman for the purpose of giving her consent to offences upon her, but that up to 12 and 14 such offences should respectively be felonies and misdemeanours whether she consented or not. As the law at present stood, the Judges, in a natural and laudable desire to protect young creatures of so tender an age as 12, were disposed to construe the most slender evidence as indicative of non-consent. If, however, the limit were placed at 14, there would be far less likelihood of a tendency in this direction. Anything that could be done to check this wicked, and it was to be feared, far too prevalent offence of debauching young girls was a step that the House, even at the instigation of a private Member, might well undertake. In reference to the third section, he (Mr. Straight) presumed that what the hon. and learned Member for Salford contemplated was to give a less technical and more summary mode of procedure for the purpose of punishing those who, without bringing themselves within the operation of the 25th of George II., carried on a most nefarious traffic, that filled the streets of great towns and supplied their places of public resort and amusement with recruits. As things at present stood, great difficulty and expense presented themselves in the way of a prosecution, and it was often impossible to obtain that evidence of a public nuisance which would sustain an indictment. This clause of the Bill had many defects, and would require considerable alteration, but it might be turned into a tangible and practical shape. It was to be expected that on the fourth section there would be considerable difference of opinion, but in principle the view of the hon. and learned Member for Salford was right. At a glance it was an obvious anomaly, that a woman having sustained the personal injury of seduction should have to sue by some other person—either her parent or her master—and that before she could recover damages such parent or master was bound to show loss of service by reason of such wrongful act of the defendant. The result of this was to be found in numerous decisions in the law books, where in cases, no doubt disclosing great hardship, the Judges had leaned to an elasticity of construction, that, for instance, had led to the making of tea being regarded as a service sufficient to meet the demands of the law and to justify a plaintiff to recover. He (Mr. Straight) looked at the question from no sentimental point of view, but he held that it would be far better to establish some legal landmarks of a practical and common sense character by which Judges might hereafter be guided. To him it seemed that the far better course would be to make the action for seduction a personal action to be brought by the woman herself, and to require her, as in actions for breach of promise and in proceedings for bastardy orders, to find corroboration. While he could not accept without reserve the proposal upon this point made by the Bill, he would unhesitatingly vote for the second reading, in the hope that the subject might be fully and carefully considered, and that some fair and intelligible alternative might present itself which would put an end to a great social as well as legal anomaly.

THE ATTORNEY GENERAL

said, that not with standing the severe remarks of the hon. Member for White haven on the neglect of the Law Officers of the Crown in not proposing legislation on this subject, and for their general ill-success in the legal measures they did propose, he could not take on himself the responsibility of objecting to the second reading of this Bill. Indeed, one of the clauses of the Bill was copied from the Bill introduced by the Government last year, and therefore whatever objection existed as to the phraseology of the clause was equally good against the Government clause. The first alteration of the law provided in the second clause was a decided improvement of the existing law. The present law drew a distinction between the offence of an improper connection with a girl under 10 years, and one between that age and 12 years—the former being a felony punishable with penal servitude or two years imprisonment with hard labour, and the latter a misdemeanour; and in neither case was the consent of the girl held to have any effect on the criminality of the offender; and the present Bill proposed to extend the ages to 12 years and 14 years respectively. The first of these alterations was an improvement in the law of which he (the Attorney General) warmly approved. At the same time, he thought the better course would be—instead of making the alteration in a special Act relating to Bastardy to alter the 24 & 25 Victoria, which was the Consolidation Statute relating to offences against the person—so as to make the alteration a part of the known criminal code of the land. He fully shared in the noble sentiments and manly feelings of the hon. Members for North Warwickshire and Nottingham, but he was sorry to say that as a lawyer he was unable to give his support to the second alteration—that which raised the age from 12 years to 14. And his reason was this—the law of England—and indeed the law of all the European nations—fixed the age at which persons were competent to consent to marriage at 12 for women and 14 for men. That being a well-known and clearly established principle of English law he was not prepared to make sexual connection with a girl over 12 years a criminal offence where the girl was a consenting party. With respect to the third clause—that which made it a misdemeanour to harbour girls under 16 for the purposes of prostitution—the hon. Member for Whitehaven (Mr. C. Bentinck) was in error in saying that the present law was sufficient. The present law was intended to deal—and no doubt to some extent did deal successfully—with disorderly houses. But the object of the present clause was to prevent, so far as it could be prevented, the harbouring of young girls for the purposes of prostitution. This was a traffic which might be carried on without any obvious outrage of decency; but while he admitted it would not be very easy to put it into effect, this particular clause was directed against a real evil which no existing law touched; and he could not take on himself the responsibility of refusing to read it a second time. The hon. Member for Sheffield (Mr. Mundella) had fallen into an unintentional error in speaking of the age at which girls were constantly consigned to prostitution in our great towns. He had greatly exaggerated the extent to which girls of tender age were engaged in prostitution in our streets. In all the towns where the Contagious Diseases Acts had been in operation the traffic in girls of that age was absolutely at an end. He felt it was very important that this statement should be made. So much for the first two portions of the Bill. With regard to that part of it which related to actions for seduction, he was not prepared to give it his support. An action for seduction was an anomalous proceeding, and the law in that respect was not in a satisfactory state—it was founded manifestly on a fiction which was contrary to common sense. The law was—You must show some kind of service and loss of service in order to found the action; but that done, the damages need not be limited to the loss of service. Sixpence might cover the injury sustained from loss of service, and the damages of £10,000 be awarded for injury to the feelings. He would not stand up for such a state of the law; but if they were to alter it, he would prefer doing so in this way:—The action should be at the suit of the woman herself; but he would not give a right of action for what he might call an ordinary seduction—that is, an improper intercourse between a young man and a young woman—an action should not be allowed or maintained except where there had been on the part of the man something like fraud or violence. There were many cases in which women had obtained verdicts where they had not taken proper care of themselves. The more we made a woman feel that she was to look after herself and not yield to inducements to go wrong, the better in his judgment would it be for the whole female sex. If he could alter the law he would alter it in the direction he had indicated. The alteration now proposed seemed to be in the wrong direction; for, though it got rid of one particular fiction, loss of service, it would encourage fictitious actions, and so open the door to abuse. He would rather repeal the present law, and pass another based on sounder principles, than alter the existing law in a wrong direction. While assenting to the second reading of the Bill, he gave the hon. Member fair notice of what was implied in that assent.

MR. A. EGERTON

supported the second reading of the Bill, with some hesitation, because hon. Members scarcely knew what it was they were discussing. The second section of the Bill was to be re-modelled, the third was to be withdrawn, and the fourth was to be materially altered; so that the House was now placed at a serious disadvantage as to the actual proposals that were to be embodied in the Bill. No one could doubt the serious nature of the grievance proposed to be remedied, but the proposed change in respect of age was a serious one, and ought not to be made without great consideration.

MR. CANDLISH

was glad to hear that the Government intended to support the second reading of the Bill, though he regretted that the Attorney General had shown hostility to the second part of the second clause, which raised the age at which consent could be given, from 12 to 14 years. He hoped that the hon. and learned Gentleman would yet be able to see his way to the acceptance of the provision.

MR. GATHORNE HARDY

said, they ought clearly to understand what they were doing. He understood that the assent of the Government was given to that part of the second section which involved the principle that up to the age of 12 no consent should be legal. It was quite true there might be grievous cases of hardship above that age; but still it was necessary to be cautious in going further. No one would wish to prevent any proper interference with immoral trading; but the clause relating to this subject would require to be made more accurate and definite. In such measures they should not look merely to philanthropy, but the House would do well to consider the moral effect of legislation which went too far. There were no trials for seduction which did not do more harm than good; and, if convictions were secured, the fact that some suffered did not check others whose imaginations and passions were aroused by the details of the trials. It was difficult to keep the Courts clear of young men, and women were sometimes only kept out by forcibly excluding them. An increasing number of these cases would be the means of increasing the evil. We must not, for the sake of punishing the seducer, encourage young women to rely upon legal compensation. It was not the really virtuous who were ready to expose their shame; and there was at least danger that hon. Gentlemen with the best intentions would only encourage the vicious. He hoped such would not be misled by the desire to do what was morally right into promoting measures which would encourage what was morally wrong.

MR. EYKYN,

whose name was on the back of the Bill, said, he believed its operation would be beneficial, and that it would do something to remove a blot and a stain upon our civilization. He had recently visited the East-end of the metropolis, and he could say with confidence that the legislation would prove beneficial in that quarter. He hoped the hon. Member for White haven would not put the House to the trouble of dividing.

MR. CAVENDISH BENTINCK

said, that as his case seemed to be admitted by the House and by the Government, he would not press the Amendment.

Amendment, by leave, withdrawn.

Main Question put, and agreed to.

Bill read a second time, and committed for Tuesday 20th May.

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