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Kate Morgan on the Fight to Abolish a Hated Victorian Act

Posted on 21st February 2024 by Mark Skinner

Kate Morgan follows up her highly engaging and informative history of homicide in the UK, Murder: The Biography, with The Walnut Tree, a fascinating examination into the hidden histories of legal injustice against women. In this exclusive piece, Morgan discusses the misogynistic Contagious Diseases Act of the 1860s and the struggle for its abolition by ordinary women.  

My first book Murder: The Biography traced the history of the law of homicide from its Anglo Saxon roots up to the present day. In writing Murder, I soon realised that legal history often has a habit of repeating itself. This took on a particular resonance with contemporary concerns around violence against women – and the justice system’s response to it.  

The news is full of public and parliamentary inquiries at the moment, investigating everything from the wrongdoings at the Post Office, the handling of the Covid-19 pandemic and the causes of the Grenfell Tower fire. These processes are a necessary – but unwieldy – tool to interrogate injustices and hopefully change things for the better, in order to prevent others from suffering in the future. They can drag on for years and involve reams of technical evidence that will baffle most every day observers. And so it is in the human stories, the testimony of those that have been directly involved in these scandals through no fault of their own, that the true cost of such scandals and miscarriages of justice emerges; and this has long been the case. 

I traced the history of similar inquiries while researching the notorious Contagious Diseases Act for The Walnut Tree and found the same pattern of change being triggered by the gut-wrenching stories of women affected by this hated legislation. Dating from the 1860s, the CDA was one of the most controversial laws of Victorian Britain. Within certain garrison towns, it permitted the Metropolitan Police to detain any woman that they suspected of being a prostitute and force her to undergo a medical examination. If she was found to be suffering from venereal disease, she could then be detained in hospital for treatment until pronounced cured.  

The aim of the Act was not an altruistic one, to preserve the health of the women concerned; it was intended solely to protect the soldiers and sailors who were billeted in the towns from infection and indisposition. The controversies surrounding the Contagious Diseases Act, from all sides of the Victorian moral compass, highlighted the hypocrisy of the law’s treatment of sex and its consequences. Some opponents objected to the assault on the bodily autonomy of the women caught by the Act, while others thought that it created a de facto licensing system for prostitution. But such was the popular support for the regime that serious consideration was given to extending it across the whole country.

There was a national campaign for the abolition of the Act, led by the formidable Josephine Butler. While Butler was a great campaigner and a passionate speaker, I found that it was the stories of the individual women persecuted by the police that made the most compelling case for changing the law. I came across women like Elizabeth Burley, an eighteen-year-old servant who almost drowned when she jumped into the docks at Dover to escape the police officers who were trying to capture her for medical examination; Elizabeth’s story was told to one of the government committees examining the question of whether to abolish the Act. I met Jenny Percy, a music hall performer in the garrison town of Aldershot who found herself shunned by the community after she was targeted by the police. When Jenny was found drowned in the town’s canal, campaigner Josephine Butler highlighted her case as a tragic embodiment of the ultimate evil of the regime.

Some of the women affected by the Act took the fight to the authorities, most notably Harriet Hicks of Devonport in Plymouth. When Harriet was detained in the Royal Albert Hospital to be treated for a disease that she didn’t have, she claimed that her detention in the venereal ward was unlawful because she was neither a prostitute nor diseased. After hearing her case, the local magistrates ordered the hospital to release Harriet immediately, to jubilant scenes from her friends and family gathered in the court’s public gallery. Historians consider that Harriet’s case was a turning point for the women of Plymouth, who were inspired by her to challenge the police and support Josephine Butler’s campaign against the Act.

In the end the hated Act remained part of British law for twenty years and was only finally abolished in the late 1880s. This was a victory for the campaigners who had fought against the regime; but the legislation sat within a wider context of inequality for women within the British justice system, that would persist for years to come. The Contagious Diseases Act could only have come about in a legal climate which also treated a married woman as the possession of her husband, made divorce much harder to obtain for women than for men, and at best tolerated – and at worst, tacitly encouraged – domestic abuse and violence against women. While it is campaigners like Josephine Butler who became most associated with bringing about changes to laws like the Contagious Diseases Act, the real impetus for change came from the individual injustices faced by women like Elizabeth Burley and Harriet Hicks, as well as the countless other women who were fighting battles in courtrooms up and down the country.  

The Walnut Tree explores the human drama behind the trials, cases and statutes of the latter half of the nineteenth century and the early years of the twentieth, a period of great change for women under British law. It looks at the hidden histories behind the law’s response to issues including harassment, divorce, domestic violence and women’s safety through the accounts of the women whose experiences shine a light on an aspect of the chequered history of the law’s attempts to protect them; women whose names are all but forgotten but whose stories, fears and fates still resonate today.

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