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Equality of rights in civil life:Mill and the prostitution of women

Helen Pringle*

The publication of The Subjection of Women in 1869 came during a period of

intensive practical and intellectual participation in English public life

by John Stuart Mill. Mill was involved in two large-scale popular

campaigns, in favour of women’s suffrage and that against the Contagious

Diseases Acts (CDA). In this chapter, I explore Mill’s perspective on the

prostitution of women, which was developed in the context of opposition

to the Acts. The campaign against the CDA was led by figures such as

Josephine Butler, whose opposition to the Acts has frequently been

portrayed as moralistic and based around notions of social purity.

Likewise, where Mill’s stance on prostitution and the Acts is noted at

all, it is seen as somehow out of character or at odds with the

libertarianism of his broader thought. However, I argue that Mill’s

perspective on prostitution was both philosophically consistent with his

enunicated principles in On Liberty and The Subjection of Women, and

politically coherent in relation to his conception of full citizenship,

and his commitment to an equal exercise of its privileges and bearing of

its burdens. Mill’s opposition to the Acts is formulated in terms of an

analysis of prostitution as a violation of the principle of personal* Some parts of this chapter were presented as a paper to the School of Social Sciences & International Studies Staff Seminar at the University of NSW in 2007,the Australian Political Science Association annual conference at Monash University in 2007, and the Society of Legal Scholars annual conference in London in 2008. I am especially grateful for comments on my work on Mill from Kate Gleeson, Alan Goldstone, Paul Corcoran and Barry Hindess.

liberty, and as a discriminatory abridgement of the security of that

principle.

To make this argument, I first sketch the background of the Contagious

Diseases Acts, and of Mill’s involvement in the campaign against the CDA,

noting the constraints he imposed on himself (and on others) in public

opposition to the Acts. I then explore the evidence he gave to the Royal

Commission upon the Operation and Administration of the Acts in 1871,

drawing out its central threads and assumptions as to the illegitimacy of

the state’s “licensing” of prostitution. I relate Mill’s evidence to the

central principle of personal liberty, the focus of On Liberty and The

Subjection of Women, and sketch the emergence of a sex-equality analysis of

prostitution on that basis, which parallels his critique of marriage. In

concluding, I suggest that Mill’s position on prostitution is congruent

with the more radical reading of The Subjection of Women and other works

offered by writers such as Susan Mendus. Mill’s understanding of

prostitution as a form of the subjugation of women is related to the

analysis of sexual slavery in the Subjection of Women. In sum, I argue that

Mill frames the prostitution of women not as an issue of individual

freedom of choice, or indeed of public order, but rather as a question of

sexual justice along similar lines to his treatment of other

relationships between men and women like marriage.

1. Prostitution, the British Army and the Contagious Diseases Acts

The context within which Mill explored the question of prostitution was

the debate over the Contagious Diseases Acts after 1869. There is no

evidence that Mill had any great interest in the question before that

time, with only brief references to it in his discussion of contracts in

Principles of Political Economy (801-802) and in On Liberty (296-297). By saying

this, I mean to emphasise from the outset my argument that Mill’s stance

on the question stemmed from his more general philosophical and political

commitments about freedom and sexual equality, and was not just a loose

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opinion he happened to hold or voice. And I mean to stress also that

Mill’s stance does not fall into the common stereotype of Victorian

moralism expressing itself in a language of sin and purity, in the way in

which the work of the historian W.E.H Lecky did, for example. In a

notorious and much-quoted passage, Lecky wrote of the mournful figure of

“that unhappy being whose very name is a shame to speak”:

Herself the supreme type of vice, she is ultimately the most efficientguardian of virtue. But for her, the unchallenged purity of countlesshappy homes would be polluted, and not a few who, in the pride oftheir untempted chastity, think of her with an indignant shudder,would have known the agony of remorse and despair (Lecky 283).1

As discussed below, Mill explicitly took issue with the central thread of

defences of the necessity and inevitability of prostitution such as that

of Lecky, in formulating his opposition to the CDA. Mill’s opposition was

expressed both publicly, in speeches and in evidence to the Royal

Commission on the Acts in 1870, and in his private correspondence.

The Acts were designed to address the problem of the sexual health and

hygiene of the British army and navy, in and around garrison towns and

ports.2 In all, four Acts were passed by the British parliament,

respectively in 1864, 1866, 1868, and in 1869.3 Similar Acts, but with a

broader reach into civilian areas, were enacted throughout the Empire,

for example the 1864 Cantonments Act and the 1868 Contagious Diseases Act

in India. Indeed, Phillip Howell stresses the importance of colonial

precedents for the British domestic legislation, and has argued for the

importance of understanding the British Acts in the wider imperial

1 See also Smith 1990, 209-211, on this strain of language used also by some opponents of the Acts. McHugh and Hamilton provide helpful accounts of the opposition to the Acts.2 The Report of Royal Commission provides a summary of the Acts and their operation (vol. 1, 3-24). For the wider background, see Walkowitz; Fisher; Bartley; Self 39-41; Mort 54-77; Ogborn; Smith 1971; and Smith 1990.3 Contagious Diseases Prevention Act 1864, 27 & 28 Vic c.85; Contagious Diseases Act 1866, 29 & 30 Vic c.35; Contagious Diseases (Ireland) Amendment Act1868, 31 & 32 Vic c.80; and Contagious Diseases Act 1869, 32 & 33 Vic c.96; and repealed by Contagious Diseases Acts Repeal Act 1886, 49 & 50 Vic c.10.

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context of the regulation of prostitution (Howell 321-339).4 The repeal

of the British Acts in 1886 was achieved after the efforts of an

organised opposition emerging around 1869, led by women’s groups whose

prominent figures included Josephine Butler, Harriet Martineau, and

Florence Nightingale, and whose activities included newspaper campaigns,

parliamentary petitions, and large public meetings.

When the Acts were passed in the 1860s, it was widely thought that

around one-third of the military defenders of the Empire had contracted

venereal disease, with the most common explanation being that this came

about through the intercourse of soldiers and sailors with “prostitutes”.

To address this problem, such as it was framed in 1864, designated

doctors were tasked to examine any prostituted woman suspected of

venereal disease, after which she could be detained in a Lock Hospital

for up to three months if found to be infected, with no right of appeal

or recourse to habeas corpus. The 1866 Act further set up a force of

“medical police” to patrol the stipulated areas and to require any

suspected woman to have fortnightly genital inspections for a period of

up to a year. The Act of 1869 compelled prostituted women to be

registered and to carry official registration cards. The Acts all

involved the surveillance and supervision of prostituted women, or rather

of women about whom the police had a suspicion on that account. There was

no similar surveillance of either military or civilian men.

In 1870, the British Acts were the subject of review by a Royal

Commission, composed of 23 men including MPs, clergy and scientists. In

discussing Mill’s evidence to the Commission, the philosopher Jeremy

Waldron describes the Acts in favourable terms: “There is no doubt that

these measures were well-intended. They were part of a general

progressive movement to improve health and hygiene in British society as

well as the armed forces, allowing the practice of medicine to play a

4 On the legislation in India, see Ballhatchet, and more recently Levine 579-602. Enid Barclay has analysed the operation of such laws in Australia with particular attention to Queensland (Barclay Parts I and II).

4

larger role in public policy making” (Waldron 12). This rather sanguine

verdict is not however a view to which Mill subscribed, or the basis on

which he spoke at the Commission. As noted above, Mill’s opposition to

the Acts was developed and voiced publicly within the context of an

organised movement of women opponents. Although that movement of women is

frequently portrayed as a wowserish social purity movement, a portrait

pioneered by Judith Walkowitz, the position of women whom Mill supported

was formulated in protest against male sexual license rather than as a

defence of women’s sexual purity.

The Royal Commission proceeded on the basis that “prostitutes” were

responsible for the spread of venereal disease and hence for the

weakening of the defence of the realm through its effects on the health

of its defenders. Throughout the hearing of evidence as well as in its

final report, the Commission did not contemplate that the category of

“prostitutes” might include men, and nor did it focus at all on the male

“buyers” of sex. This explicit gendering of the problem of transmission

of venereal disease through prostitution was for the most part taken as a

given by supporters of the Acts, but was one of the chief criticisms

raised in the evidence given by opponents. The 1871 Report of the

Commission noted this aspect of the evidence offered, while peremptorily

dismissing any such concerns:

Many witnesses have urged that as well on grounds of justice asexpediency, soldiers and sailors should be subjected to regularexaminations. We may at once dispose of this recommendation, so far asit is founded on the principle of putting both parties to the sin offornication on the same footing by the obvious but not less conclusivereply that there is no comparison to be made between prostitutes andthe men who consort with them. With the one sex the offence iscommitted as a matter of gain; with the other it is an irregularindulgence of a natural impulse (vol. 1, 17).

Mill’s evidence to the Commission had stressed this very inequality in

sexual footing as central to the wrongness of the Acts, and he elsewhere

took issue with the way in which it was naturalised as its

5

characterisation in the Report as “an irregular indulgence of a natural

impulse”.

Mill had made it known that he would like to be called as a witness to

the Commission and he was invited to give evidence on the recommendation

of Douglas Kingsford, the barrister of the Ladies National Association

for the Repeal of the Contagious Diseases Acts at the Commission (McHugh

61). By that time, Mill was widely known (and often lampooned) as the

author of the Subjection of Women and of the women’s suffrage amendment to

the 1867 Reform Act. He had also voiced his opposition to the CDA in a

speech to a public meeting on the suffrage, organised by the London

National Society for Women’s Suffrage on 26 March 1870. In that speech,

Mill argued in favour of the franchise for women and, more broadly, for

“equality of rights in civil life, and especially in marriage” (Mill

1870, 386). For Mill, women’s suffrage was the key to, and security of,

this broader goal. He then argued,

… if women had votes, there would be a much sterner repression ofthose outrages on women, which make the necessity working women areunder of going out alone a serious danger to them by outrages whichhave only reached their present height through the inexcusableleniency with which they are treated by the courts of justice. (Hear,hear.) If women had had votes, we should not have had the “ContagiousDiseases Acts”; under which the wives and daughters of the poor areexposed to insufferable indignities on the suspicion of a police-officer; and must be so, if the Acts are to be so enforced as to haveany chance of being effectual for their object (Mill 1870, 388).

Throughout the campaign against the Acts, and in his evidence to the

Commission, Mill carefully related both women’s suffrage and equality of

rights in civil life to the repeal of the CDA.

However, Mill expressed and acted on doubts about the desirability of

organisational links between the campaign for the suffrage and that against

the CDA. Mill had taken an active part with Helen Taylor in establishing

the London branch of the National Society for Women’s Suffrage (eg see

Mill 1869b, 373-381). But his correspondence evinces a rather ungenerous

stance to some of its women members (even on occasion deeming them to be

6

“enemies”) who sought to make stronger links between suffrage and anti-

CDA organisations. Mill set out his position on this “most unwise

mingling” of the two campaigns in a letter to George Croom Robertson of

25 October 1871:

… the agitation for the repeal of the C.D. Acts should be in nowisemixed up with that for the Suffrage. To confound the two together, isto break faith with the members of the Suffrage Society, many of whomtotally disapprove of the other agitation. I cannot help thinking thata proper feeling on this point would bind every person who isconspicuous in the one agitation to resign any part in the other. Tomake use of the one organisation as a tool to bring in money andinfluence for the other, is a breach of faith which I have the lesshesitation in stigmatizing as it deserves, because I am myself infavour of both, supposing them to be carried on in a loyal andhonourable manner (Mill 1972, 1846).

Mill justified his caution in this aspect not by reference to his own

stance on the two issues (“I am myself in favour of both”), but

strategically, by reference to the stance of what he called “the world in

general”. Mill wrote to Robertson on 15 November 1871 that an association

of the two campaigns would be “simply suicidal” in terms of winning the

support of the public or “the world in general” for the suffrage, given

that, in his view, even those who were well disposed towards women’s

suffrage would consider the CDA question to be “indelicate and

unfeminine” (Mill 1972, 1854). Mill’s evaluation of the prejudices of his

fellow citizens, accurate or not, entailed that he himself took a more

intransigent line in his correspondence than in public on both the CDA

and the broader question of prostitution.

Questions of sexual equality in civil life loomed larger than ever in

this period of Mill’s life. His most recent biographer Richard Reeves

points out that in the last four years of his life, around half of Mill’s

letters were concerned with women’s issues in some way (Reeves 428). In

terms of organisational leadership, Mill argued that women should be in

the fore of both suffrage and CDA campaigns, along with “a reinforcement

of men” (Mill 1972, 1688-1689, and 1706), but he spoke unequivocally

about the importance of the suffrage when invited to do so in public. In

7

contrast, in regard to the CDA, and even more so on prostitution, there

is a diffidence in Mill’s public stance that is not present in his

private correspondence.

Mill himself was wary as to the using (his) private correspondence as

evidence of the more philosophical position of its author. In a letter of

24 January 1870, Mill cautioned William Malleson against the publication

in a newspaper of a letter Mill had sent to him, on the grounds that “it

is neither good for the public nor for myself that mere obiter dicta, things

written with no view to publication & written to persons who already

agree with me, shd be sent forth through the newspapers as if they were

the best I could do, & as if that were my chosen way of communicating”

(Mill 1972, 1690). While heeding this caution, I nevertheless believe it

is possible to use correspondence in understanding an author’s

sensibility, and in this case, in understanding Mill’s perspective on

prostitution, at least if the correspondence aligns with and appears

drawn from the philosophical and political principle on which Mill based

his public stance, as in his contribution to the Commission’s proceedings

on the CDA. I now turn to look in more detail at the evidence Mill gave

to the Commission.

2. Mill’s evidence on the Contagious Diseases Acts

Mill gave evidence to the Royal Commission on 13 May 1871. He set out the

foundation of his opposition to the Acts as a matter of principle and

not, say, in terms of their abuses or individual effects:

I do not consider it [CDA] justifiable on principle, because itappears to me to be opposed to one of the greatest principles oflegislation, the security of personal liberty. It appears to me thatlegislation of this sort takes away that security, almost entirelyfrom a particular class of women intentionally, but incidentally andunintentionally, one may say, from all women whatever, inasmuch as itenables a woman to be apprehended by the police on suspicion and takenbefore a magistrate, and then by that magistrate she is liable to beconfined for a term of imprisonment which may amount, I believe, to

8

six months, for refusing to sign a declaration consenting to beexamined (Mill 1871a, 351).

In terms of the basis on which he gave evidence, Mill claimed only “a

general acquaintance” with the Acts, and “[no] practical knowledge” of

their workings – although his correspondence indicates that he had

actually acquainted himself with these workings. For example, Mill wrote

to an (unidentified) correspondent on 11 January 1870,

I do not think the abuses of power by the police mere accidents whichcould be prevented. I think them the necessary consequences of anyattempt to carry out such a plan thoroughly. If once examination ismade other than voluntary the police must try to prevent evasion of it,and this at once opens the door to innocent mistakes on the part ofthe police, and makes it necessary to entrust them with power over womenwhich no men are fit to have. I am opposed to the principle of theAct. I believe the medical efficacy of it to be doubtful, and Ibelieve it to be impossible to carry it out without a degree ofoppression which would more than overbalance any advantages that couldbe gained (Mill 1972, 1681).

Mill’s stand on the principle of “the security of personal liberty” was

not taken because of his lack of interest in or ignorance of abuses

consequent on the foundational violation of the Acts. However, his

insistence on speaking to the principle rather than the abuses of the

Acts does underline that he understood this intervention at the

Commission not just as the expression of an opinion, but as drawn from

his expertise and standing as (what we might call today) a public

philosopher. Mill evidently believed that his opposition to the Acts was

not a moralistic plaint but a principled argument congruent with his

central commitments to and defence of personal liberty, as set out in his

published works like On Liberty and The Subjection of Women.

Mill’s argument was that the Acts violated the security of personal

liberty, and that they did so in a discriminatory manner. For example,

Mill argued to the Commission that personal examination of prostituted

women as stipulated in the Act was degrading and “in itself illegal”

(Mill 1871a, 356), and this more so to women than to men. In a letter of

29 December 1870 to John Nichol (a supporter of the Acts, as well as

9

being a supporter of women’s suffrage) Mill alluded to the kindred

legislation on contagious diseases in animals which had been passed

around the same time, and argued,

No reason can be given for subjecting women to medical inspectionwhich does not apply in a greater degree to the men who consort withthem. The process is painful, even physically, and sometimesdangerous, to women -– not at all so to men: and it is idle to saythat its application to men is impracticable: the same kind and degreeof espionage which detects a prostitute, could equally detect the menwho go with her. The law, being one-sided, inflicted on women by men,and delivering over a large body of women intentionally, and manyother women unintentionally, to insulting indignity at the pleasure ofthe police, has the genuine characteristics of tyranny (Mill 1972,1789-1790).

This line of argument in regard to the CDA is somewhat similar to that

presented by Josephine Butler’s The Constitution Violated, in making use of

similar themes in regard to civil life such as the liberty of the

subject, and the discriminatory violation of that liberty as raising the

spectre of tyranny.

A puzzling aspect of Mill’s evidence, reflected also in this letter to

Nichol, is that he seemed prepared to countenance the “espionage”

involved in a surveillance and subsequent inspection of men (civilian as

well as military) entering and leaving brothels. At one point during

Mill’s evidence to the Commission, Sir John Pakington inquires, “Am I to

understand you seriously to propose that in this country we should adopt

a system of espionage over every man seen going in to a brothel, and that

men seen to go into a brothel should be subject all alike to personal

examination?” (in Mill 1871a, 362). Seemingly unflinching, Mill responded

to Pakington that if women were to be subject to personal examination by

the police, it followed that men should also be, a measure to be

supplemented by criminal sanctions and pecuniary damages against those

men who communicated venereal disease to their wives, an act which should

in turn serve as a ground for dissolution of the marriage (vinculo) (Mill

1871a, 363, also 353-354).

10

In his countenancing such a suggestion about “espionage” and its

corollaries, it might seem that Mill went somewhat beyond, or even

against, his initial insistence on the principle of the security of

personal liberty. Mill’s response in this manner suggests that his point

about discriminatory allotment of burdens and privileges was most

strongly tied not to a gender-neutral conception of fairness, but to a

consideration of the gendered assumptions that the Acts reflected, and

which they also constructed and buttressed. Mill’s evidence to the

Commission, although apparently circumscribed by his stand on a central

principle only, led on to a wider assessment of the question of

prostitution. This aspect of his argument emerges in Mill’s criticism of

any policy or practices of “licensing” prostitution.

Mill’s argument to the Commission was that the special attention given

to venereal diseases through the CDA, or a similar measure, inherently and

necessarily implies that “the State patronises the class of practices by

which these diseases are engendered, since it considers those who

contract these diseases as worthy of more attention, and takes more pains

to remedy the consequences, than those who have other diseases equally

serious” (Mill 1871a, 370). Mill’s position was that, regardless of any

benevolent intention of such legislation, it cannot but give “some degree

of encouragement” (1871a, 355) to the practice or institution that it

thereby “patronises”. In other words, Mill seems to argue that such

legislation supports prostitution. I would argue that the implication of

Mill’s argument goes further, suggesting that any such legislation is

itself part of the system of prostitution, as Mill explicitly wrote in a

letter to William Malleson of 18 January 1870.

In evidence to the Commission, Mill argued, “I do not think it is part

of the business of the Government to provide securities beforehand

against the consequences of immoralities of any kind. That is a totally

different thing from remedying the consequences after they occur. That I

see no objection to at all” (1871a, 353). Mill’s use of the term

“immoralities” here does not have narrowly moralistic tones. Rather, it

11

is in line with his enunciated sense of the importance of government and

law in inciting generous moral feelings of citizens towards each other,

such as in helping those who have fallen into desperate circumstances,

even when there through their own efforts and choices.

Along similar lines, Mill told the Commission that a state licensing

system for prostitution, as operating in France at the time, would in his

view be subject to similar criticisms as the CDA: “all the objections

which exist against the Acts, exist in an extreme degree against

licenses, because they have still more the character of toleration of

that kind of vicious indulgence, than exists under the Acts at present,

or can exist in any other way” (1871a, 356, and passim).5 Mill reiterated

this point in his letter of 29 December 1870 to John Nichol, arguing that

the Acts in fact take this form of a “license” to vice:

To soldiers and ignorant persons it cannot but seem that legalprecautions taken expressly to make that kind of indulgence safe, are alicense to it. There is no parallel case of an indulgence or pursuitavowedly disgraceful and immoral for which the government providessafeguards. A parallel case would be the supplying of stomach pumpsfor drunkards, or arrangements for lending money to gamblers who mayotherwise be tempted into theft in moments of desperation, and thusinjure their wives and families. We have no such parallels by which toprove to men of lax habits in this particular that we disapprove of,while taking care of them. It is tolerably plain, therefore, that as amatter of fact the legislature does regard this with less disfavourthan any other practice generally considered immoral and injurious tosociety: and the public evidence of its doing so must of necessitytend to remove feelings of shame or disapprobation connected with it(Mill 1972, 1791).

According to Mill, the state’s provision of preventive securities for

(and not just remedial measures to address the effects of) “illicit

indulgence”, thereby “licensed” the availability of “clean women” to the

standing army, such that the state stood and acted in the role of a pimp.

In a letter of 18 January 1870 to William Malleson, Mill wrote along

these lines about the pander state:

5 See also on this point Mill’s letter of early 1870 to the French author JulieVictoire Daubié (Mill 1972, 1714-1715).

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Of course one need scarcely say that to any man who looks uponpolitical institutions & legislation from the point of view ofprinciple the idea of keeping a large army in idleness & vice & thenkeeping a large army of prostitutes to pander to their vices is toomonstrous to admit of a moment’s consideration, while the safety ofthe country could be provided for by the military education of allclasses, or until after every possible experiment with marriedsoldiers had been tried & failed. I therefore do not think that thissystem of legislation which I think utterly depraving to the mass ofthe population (not to speak of its gross inequality between men &women) is in any way specially necessary for the army & navy. It is amonstrous artificial cure for a monstrous artificial evil which hadfar better be swept away at its root in accordance with democraticprinciples of government (Mill 1972, 1688).

In this remarkable passage, Mill suggests that the state in fact is

acting as a procurer in raising an “army of prostitutes” alongside, and

to serve the purposes of, the official standing army of men.6

Moreover, Mill’s reference in this passage to the artificiality of the

institution of prostitution allows us to draw out a deeper sense in which

the state acts as a pimp in such a set-up. In Mill’s argument, the state

also thereby “licenses” a form of unruly male sexuality, which is then

presumed to be natural. This double sense of “male license” stands at the

heart of the connexion between Mill’s critique of the CDA and that of

prostitution more broadly. The regulation of “prostitutes” through the

Acts does not merely involve questions of health, sickness and disease,

the framework that the Commission members were eager to press on Mill and

on others who gave evidence. Mill’s passage suggests that the regulation

of this disease through the Acts involved questions of subordination, and

the naturalisation of subordination as simply a fixed feature of the

sexual landscape.

In suggesting this argument, Mill dealt with the objection that the

Acts were in fact no more discriminatory than the law on military

6 Mill set out his opposition to a standing army in a letter to Edwin Chadwick of 2 January 1871, arguing, “The perfection of a military system seems to me to be, to have no standing army whatever (except the amount required for foreign possessions) but to train the whole of the able bodied popularion to military service” (Mill 1972, 1792).

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enlistment, which also applied to one sex only (in this case, to men). In

response to such an objection from John Nichol, Mill argued in his letter

of 29 December 1870 that military service is a completely dissimilar

question. That is, in circumstances where women are not able to be

soldiers even where they might wish to, the case is not parallel:

… the laws that regulate enlistment are not made by women only,themselves not liable to it, and then applied to men only, who have novoice in making them; as is the case in those penalties, ordiscipline, proposed to be applied to prostitutes by a legislaturewhich neither consists of, nor is elected by, any proportion of women.Moreover, so long as women who offer themselves as soldiers are notaccepted, the being a soldier must be taken as a privilege, and not apenalty, of sex. If women were only not soldiers because they areincapable of the fatigue and labour, then those women who in men’sclothes have proved themselves capable would not be ejected on theirsex being discovered. So long as this is the case, military service isas much a privilege of our aristocracy as it is in Mahomedan countrieswhere Christians are not allowed to serve (Mill 1972, 1790).

Unlike the “privilege” of military service where permitted to men only,

prostitution is impliedly a penalty, and not a privilege, of sex. And the

Acts on prostitution are understood to address a relationship, not simply

the “choices” of individual women to become “prostitutes”. Mill cautions

Nichol, “You must remember that no woman can render herself liable as a

prostitute without a man for her accomplice: yet when it comes to the

punishment, or, if you prefer so to consider it, the discipline, we hear

no more of him. Thus the man only is a soldier, and he subjects himself

voluntarily to the discipline: a man and a woman must be associated in

prostitution, the woman only is subjected to discipline, and that without

her own consent” (Mill 1972, 1790).

In this pespective, the Contagious Diseases Acts licensed a

subordination naturalised through its reference to desire, and in

particular to an unruly male desire. However, Mill astutely noticed how

the Acts also crafted and positioned women’s desire in terms of a

responsibility for the existence of prostitution and of “prostitutes”. In

a letter to Charles Kingsley of 9 July 1870, Mill wrote to praise the

14

“chivalry” of the women opposed to the CDA, who in his view acted not

only out of conscience but in reaction to a feeling that “the connivance

of virtuous women alone makes it possible for so-called decent men to

call into existence the ‘profession’ which is in question” (Mill 1972,

1744). For Mill, the “chivalry” of the Acts’ opponents attacked the very

construction of the virtue of “women” as dependent on and protected by

the vice of “prostitutes”, the portrait set out so succinctly in Lecky’s

notorious statement noted above. In Mill’s view, what marked the strength

of women’s opposition to the Contagious Diseases Acts was their

recognition of this dependence of the very idea of womanly virtue on the

vice of “prostitutes” as an artificial and unfair construction.

3. Law pretending to be nature: Gendered inequality in marriage and

prostitution

Mill’s evidence to the Royal Commission presented state regulation of

prostitution as a form of licensing (and protection) of practices of

inequality. What appears to follow from this understanding is that the

Acts themselves form part of the institution of prostitution, with the

state acting as pimp and procurer. Mill’s reference to the cliche of

“profession” in regard to prostituted women is striking in its use of

inverted commas. For Mill, the central figures in acts of prostitution

were the men involved, rather than “prostitutes”, and it was male desire

and its status as a “natural impulse” that needed to be put in question

rather than the motivations and actions of prostituted women. Mill’s

complaint against the Contagious Diseases Acts, and other forms of state

regulation of prostitution, centred on their discriminatory impact on the

personal liberty of women, and their license to the sexual liberty of

men.

This analysis of the discriminatory character of the Acts rests on

Mill’s understanding of the relation of social and natural: the Acts in

this view do not simply reflect but also establish a gendered hierarchy

15

that allocates sexual prowess to the one end, and chastity plus

vulnerability to the other. This hierarchy is not in any sense a

“natural” ordering, but a deeply social construction, according to Mill.

In a letter to John Nichol of 18 August 1869, writing about The Subjection of

Women, Mill noted that Nichol had clearly grasped “what I have

endeavoured to impress upon the readers of my book, that the opinions

expressed in it respecting the natural capacities of women are to be

regarded as provisional; perfect freedom of development being

indispensable to afford the decisive evidence of experiment on the

subject: & if as you truly say, conventionalities have smothered nature

still more in women than in men, the greater is the necessity for getting

rid of the conventionalities before the nature can be manifested” (Mill

1972, 1633). Until women have said all that they are able to say, Mill

argues, we have only men’s word for what is natural, and that word serves

their passions and interests, or rather, what they understand those

passions and interests to be.

For Mill, the relation of marriage was the chief instance in which

such a systematic confusion about what is natural in our desires

manifests itself as an unjust inequality. In The Subjection of Women, Mill

countered the position that inequality between men and women was in any

way natural:

Some will object, that a comparison cannot fairly be made between thegovernment of the male sex and the forms of unjust power which I haveadduced in illustration of it, since these are arbitrary, and the effectof mere usurpation, while it on the contrary is natural. But was thereever any domination which did not appear natural to those whopossessed it? There was a time when the division of mankind into twoclasses, a small one of masters and a numerous one of slaves,appeared, even to the most cultivated minds, to be a natural, and theonly natural, condition of the human race (Mill 1869a, 269).

Mill argues that the justification of the prerogatives of power is

frequently performed by characterising them as natural and inevitable, as

did the slaveowners of the old South. He concludes that “unnatural

generally means only uncustomary, and that everything which is usual

16

appears natural” (1869a, 270). Mill made a similar point in a speech on

women’s suffrage in Edinburgh on 12 January 1871: “when we find people

making themselves uneasy for fear that nature’s purposes should be

frustrated unless law comes to her assistance, we may be pretty certain

that it is not nature they are so careful about, but law pretending to be

nature” (1871b, 407).

Mill related this caution about the confusion of nature and law

directly to questions of the apparent difference in sexual desire as

between men and women. In early 1870, Lord Amberley inquired of Mill as

to the significance of the “surplus” of men’s desire over that of women,

and cited Lecky’s position that prostitution is “inevitable” given such a

“surplus”. Mill’s reply to Amberley on 2 February 1870 scoffed at Lecky’s

unreasoning conservatism but also noted that it was important to consider

Lecky’s central “doctrine”, that is, “prostitution as a safety valve to

prevent the propensity to which it ministers from producing worse evils”

(Mill 1972, 1692). The implication of Lecky’s doctrine is that without

the ministry of prostitution, male “propensity” would manifest itself in

“outrages” upon women such as noted by Mill in his 1870 speech on the

suffrage noted above (Mill 1870, 388). Mill responded that the

“propensity” at issue had been fostered by civilization itself (more

specifically, “a civilisation left mainly to the influence of men”) and

by Catholic teachings that exaggerated “the force of the natural

passions”. However, sexual passion shows itself to be capable of coming

under the rule of reason in women, something they had been taught to

accomplish as a condition of their gaining the love of men. Hence, Mill

argues, there is no obstacle to the development of similar restraint in

regard to men’s passions (Mill 1972, 1692-1693) – at least if we consider

male “propensity” as both sign and construction of a social hierarchy,

and not as an occurrence in nature.

The gendered social hierarchy of domination and subordination rests on

and performs itself through the licensing of the unruliness of men’s

desire, which Lecky himself portrays as the basis of prostitution.

17

However, Mill does not take this portrait to be a mirror of nature, but

of society. Moreover, he differs in his assessment of its morality

(again, morality in Mill’s characteristically wider sense). To Amberley,

Mill concluded,

I, on the contrary [to Leckie], think that with the exception of sheerbrutal violence, there is no greater evil that this propensity canproduce than prostitution. Of all modes of sexual indulgence,consistent with the personal freedom and safety of women, I regardprostitution as the very worst; not only on account of the wretchedwomen whose whole existence it sacrifices, but because no other isanything like so corrupting to the men. In no other is there the sametotal absence of even a temporary gleam of affection and tenderness;in no other is the woman to the man so completely a mere thing usedsimply as a means, for a purpose which to herself must be disgusting….The fact I believe to be, that prostitution seems the only resource tothose and to those only, who look upon the problem to be solved to be,how to allow the greatest license to men consistently with retaining asufficient reserve or nursery of chaste women for wives (1972, 1693).

According to Mill, prostitution is unjust to men as well as to women,

although the burdens of that injustice fall unequally on women, and

especially on those women designated either in informal usage or by the

legislation of the state as “prostitutes”. In a follow-up letter to

Amberley of 12 February 1870, Mill returned to the question of Lecky’s

understanding of prostitution to counter Amberley’s conjecture as to the

difference between men and women in terms of desire:

I see no proof of the difference of physical constitution you supposeto exist between men and women as to the point in question. From all Ihave read or heard I believe that there are no signs of it amongsavages: and the Hindoo books talk perpetually of the unrestrainablevoluptuousness of women.7 I rather think the difference is merely thatthe masters, being more accustomed to indulge all their propensitiesthan the subjected, find them more imperative and uncontrollable. Somuch for Mr Lecky’s “heroic standard of virtue.” With Mr Lecky I amentirely at issue as to prostitution being the least bad form ofillicit sexuality. I think it by far the most degrading and the mostmischievous (Mill 1972, 1694-1695).

7 I acknowledge but cannot address in this space questions about Mill and India, in particular the relation of race and religion to sex, as absolutely crucial in understanding his work. Zastoupil’s work provides a useful introduction.

18

Mill’s analysis of the mischief of prostitution in his letters to

Amberley is aligned with his understanding of marriage. For Mill, both

marriage as presently constituted and prostitution are forms of unjust

relation, which rob men as well as women of the possibility of

flourishing.

Similarly to the law and practices of unequal and indissoluble

marriage, the law and practices of prostitution construct women as

subordinate, and whose “propensity” is not to be their own desire, but to

act as a “mere thing” for the use of a gendered class of others to whom

greater civil standing and sexual prowess is attributed. The price of

married women’s vaunted chastity was paid by the vice socially attributed

to some women designated as “prostitutes”, that is, in Mill’s view, by a

vice not inhering in their own character. However, in contrast to

marriage, Mill understood the mischief of prostitution to be

irrecoverable, given its defining treatment of a woman as “so completely

a mere thing used simply as a means, for a purpose which to herself must

be disgusting”, presumably a purpose disgusting because not her own and

so violating of her person. Mill had argued in an early essay that a

marriage of dependence without mutual affection is a degradation to a

woman, a degradation that shares “the essence of all prostitution, the

act of delivering up her person for bread” (Mill 1832, 43). However, he

believed that the relation of marriage was probably recoverable, if it

were given “a fair trial” under conditions of equality both in society

and within the relationship itself. In his letter to Amberley of 12

February 1870, Mill wrote, “It has yet to be seen what marriage will do,

with equality of rights on both sides; with that full freedom of choice

which as yet is very incomplete anywhere, and in most countries does not

exist at all on the woman’s side” (1972, 1693). If it were not

recoverable under such conditions of equality, some other relation might

be explored – but according to Mill, nothing could be as flawed as

prostitution as an intimate relation.

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Conclusion

The general line of Mill’s argument sketched in this chapter is that

prostitution is not a “profession” chosen by individual women, but a

social institution, a part of which is the very law that regulates it.

And for Mill, it is a system that deserves in justice to be swept away at

its basis, because it is not simply a series of discrete harms by

individuals to other individuals, but a violation of the central

principle of legislation and of justice, the principle of personal

liberty, secured in its equal enjoyment. Mill’s opposition to the

Contagious Diseases Acts, and his stance on prostitution around that

focus, were based on this central principle, elaborated more fully in On

Liberty and The Subjection of Women. Mill did not write a treatise on

prostitution like that on marriage in The Subjection of Women, but my

contention is that Mill does provide the outline of a sex-equality

approach to the prostitution of women founded on the principle of

personal liberty. In Mill’s writings, the institution of prostitution

involves a gendered inferiority assigned to one class of people

considered subordinate relative to another class of people considered to

be in the rightful possession and exercise of sexual prowess. To

summarise, prostitution in this view is a form of inequality that has no

necessary connection to natural differences, whatever they might be. As

an institution, and as a set of individual practices, it is a hierarchy

that is constructed, fostered and protected by law in both its educative

and punitive aspects.

However, in concluding, I think it is important to note that Mill did

not recommend the legislative abolition of prostitution along the lines of

the abolition of slavery, say. Indeed, in chapter 5 of On Liberty, Mill

briefly alludes to the question of prostitution, saying that

“[f]ornication must be tolerated” (it is not clear if he means by the law

or by public opinion here). But he was uncertain as to whether this

20

toleration should extend to those who benefit from such practices, noting

in a rather indecisive manner,

The case is one of those which lie on the exact boundary line betweentwo principles, and it is not at once apparent to which of the two itproperly belongs.… On the side of toleration it may be said, that thefact of following anything as an occupation, and living or profitingby the practice of it, cannot make that criminal which would otherwisebe admissible;... In opposition to this it may be contended, thatalthough the public, or the State, are not warranted inauthoritatively deciding, for purposes of repression or punishment,that such or such conduct affecting only the interests of theindividual is good or bad, they are fully justified in assuming, ifthey regard it as bad, that its being so or not is at least adisputable question: That, this being supposed, they cannot be actingwrongly in endeavoring to exclude the influence of solicitations whichare not disinterested, of instigators who cannot possibly be impartial– who have a direct personal interest on one side, and that side theone which the State believes to be wrong, and who confessedly promoteit for personal objects only (Mill 1859, 296).

The members of the Royal Commission twice posed similar considerations to

Mill about the prosecution of brothel-keepers, to which Mill demurred

that it was a difficult question, and he seems to sidestep the problem

(1871a, 359-360, and 369).8 Mill did argue however that the tendency of

law in protecting prostitution was to do “moral injury” to its subjects:

“I hardly think it possible for thoughtless people not to infer, when

special precautions are taken to make a course which is generally

considered worthy of disapprobation safer than it would naturally be,

that it cannot be considered very bad by the law, and possibly may be

considered as either not bad at all, or at any rate a necessary evil”

(Mill, 1871a, 371).

Mill was not indifferent to such moral injuries, but he was less

certain about the legitimacy of redressing them by legal means. As I have

argued, he understood that law played an important part in forming the

context within which people lead their lives, form their desires, and

8 James Fitzjames Stephen wrote of Mill’s equivocation on the subject of brothels as “a kind of ingenuity which carries its own refutation on its face” (Stephen 1873 cited in Waldron 30).

21

make their choices. In The Subjection of Women, for example, Mill wrote about

law’s part in constituting marriage as a form of “unjust power” and of

slavery: “The law of servitude in marriage is a monstrous contradiction

to all the principles of the modern world, and to all the experience

through which those principles have been slowly and painfully worked

out…. Marriage is the only actual bondage known to our law. There remain

no legal slaves, except the mistress of every house (Mill, 1869a, 323).9

Again, law played this role not only through its punitive sanctions but

through the “sentimental education” it offered in teaching women and men

about their desires and propensities (1869a, 271). If Mill was diffident

on the use of law to abolish prostitution, he was nevetheless clear that

its use to “license” prostitution was a violation of the central

principle of legislation itself, the security of personal liberty.

9 On the radicalism of Mill’s analysis of marriage, see in particular Mendus 287-299.

22

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