London Labour and the London Poor, Vol. 4

by Henry Mayhew

It is just to the wisdom of that age, however, to remark, that these discussions of the casuists appeared no less ridiculous to contemporary statesmen than to us; while the general public idea of prostitution was habitual debauch for vile purposes, whether mercenary or otherwise.

Some theorists, nevertheless, insisted that the nature of a hireling was inseparable from that of a prostitute. On this account the name meretrix had by the Latins been given to a woman of this class; but this view led to consequences which the wise legislator would not accept. If any female accepting a reward for her dishonour was to be publicly enumerated among professional harlots, many, from a single offence, must, under compulsion, follow a life of systematic vice. Others argued that two or three repetitions of this infamous sale would justify the title being applied; but this is a point on which writers have never agreed. Consequently, a long controversy arose upon the three conditions in dispute: what amount of publicity—what number of vicious connections—what kind of venality—was sufficient to stamp a woman with the name and character of a common prostitute.

Rabuteaux describes her as one who, under constraint, or by her own will, abandons herself, without choice, without passion, without even the impulse of the grossest lust, to an unchaste course of life. By want of choice he means the absence of a preference for the individual, by which, he adds, a forbearing judgment extenuates the offence of immorality. If, he insists, there be any choice of persons, there may be libertinism, there may be debauch, there may be scandal, there may be vice, but there is not prostitution in the true sense of the word. It applies to “sacred prostitution,” whether gratuitous or venal, which was an unblushing and indiscriminate sacrifice of chastity; to that which the barbarous hospitality of savages, whether on the rivers of Lapland or in the deserts of Africa, gave up a woman to every guest; and to that legal kind in civilized countries which sold itself promiscuously for hire.

Such is M. Rabuteaux’s idea. We differ from him. Prostitution appears to us the application to a vile purpose of that which was designed for honourable uses; and the mere satisfaction of animal lust is in itself the vilest object. There may exist in a woman’s mind, even when most debauched, a preference for some, an aversion to others; but she is no less a prostitute, if she abandon herself viciously, whether to one or many.

While these theories divided the opinions of lawgivers, legislation on the subject was extremely difficult. They were forced to be contented with what they thought imperfect proof; and, to fix the infamy of a woman, accepted evidence from witnesses, even those accomplices in sin who, of all others, have lost the right to accuse. A female who chose the night for the period of her orgies; who, as a wanderer, without a companion to protect her, entered house after house; who waited on revellers in a place of entertainment; might be registered among common prostitutes. A legitimate suspicion, also, attached to her who received the visits of many young men; and, above all, who, in light or darkness, frequented a public school.

These women, when once consigned legally to the prostitute class, gained, in the middle ages, a right which they could not otherwise assert. The Roman laws adopted by the jurisprudence of that period allowed her to have a legal claim to payment when she prostituted her body, and the reason assigned was founded on a strange and subtle distinction of terms. “The courtesan’s vocation,” said Ulpian, “is infamous, but the wages of it are not; the act is shameful, but not the reward which is in prospect when the act is committed.”

The Spanish law was still more favourable to her. When a man paid in advance, and she refused to submit according to her promise, he could not demand his money back. On one side she received a legitimate emolument; on the other, he was guilty of immoral turpitude which the law would not recognise. The code of Alphonso also permitted this interpretation; some commentators, however, allowing that the woman had a right to revoke the promise of yielding her person, but was bound to restore the amount of hire she had received. Long and vigorous controversies arose among the theologians when this was referred to them. It was also disputed in France, whether the prostitute could enforce payment when she had sold herself and an avaricious person refused to reward her. An imposing list of authorities is arrayed on either side.

Another question long debated was the use to which such gains could lawfully be applied. Alphonso the Wise, on the authority of Isaiah, forbade priests to receive offerings from such a source. Baldæus and others insisted that the church could not accept taxes from public women; but this by many was repudiated, as contrary to the principle that the wages of prostitution were lawfully acquired. The Spanish law allowed money of this kind to be given in alms, and the public opinion recognised the right to dispose of it by testament, though several popes attempted to decree a contrary usage. If, then, they could dispose of their gains as they pleased, could they inherit property? They could, but under limitations. In Savoy it appears that legacies to prostitutes made by soldiers who had not quitted service more than a year were null and void. In Spain no woman of this class could inherit to the disadvantage of the testator’s relatives in a direct or collateral line. Many authorities only admitted the brother of the deceased to this right; but an exception was made when it was a daughter who succeeded to such property, or when the woman was herself married. A mother, however, could disinherit her daughter for leading a vicious life, but lost this privilege if she had been the accomplice of her immorality. The father had equal authority, but with one curious limitation. When, said the law, a father has sought to marry his daughter, and endowed her sufficiently, if she, against his will, refuses to marry and becomes a prostitute, he may cut her off; but if he have opposed her marriage until she reached the age of 25, and become a libertine, he cannot refuse to bequeath her his property. In the duchy of Asota, in Piedmont, a similar regulation was established; but the age was fixed at 29, and the woman, on every opportunity to marry, was bound to present herself before her father and demand his consent. If he refused it, he was not allowed to punish her when, at 30, she became a harlot.

The church, in those ages, made it a pious act to marry a prostitute, and absolved from their sins all who did so. In France a woman of this class might, at a very ancient period, save a criminal from death, by inducing him to espouse her, and Farnacius relates an anecdote which shows this custom to have existed in Spain. In a city, which he does not name, a young man mounted on an ass was being conducted to the scaffold. A courtezan was struck by his beauty, offered him his life if he would become her husband. He refused. The temptation was not strong enough to induce him to accept such a wife. He merely answered, “Let us move on,” and reached the place of execution. Meanwhile, however, an account of the incident had reached the king, and he, admiring the youth’s courage, pardoned him. From this we may learn that though the church consecrated such a marriage with peculiar grace, public opinion considered it infamous.

The jurisprudence of the middle ages introduced new principles, and these unions became more rare. Many doctors of law announced that they were contrary to the sacred code.