The impolicy of making syphilis a reason for imprisonment, except so far as curative measures actually require it, must be apparent to all, were it merely from the fact that it deters many who are suffering from embracing the opportunity of cure until they are absolutely compelled to do so. How excessively wrong is this principle in a hygienic point of view must be evident; a directly contrary course, making the hospital attractive instead of repulsive, would be the true policy, and would be the most economical in its results. Nor is it justice to the medical departments of our public institutions to clog their labors with a proviso which prevents their aid being sought until the last extremity, when it can only exert a palliative and not a curative agency. If syphilis could be reached in its primary stages, their task would be much less difficult and their services much more effectual; whereas little or nothing can be accomplished when official regulations keep away the patients until the disease becomes constitutional, and the mischief is done. As in morals, so is it in medicine. Any evil, to be treated with success, must be encountered in its first stage, and if our regulations preclude this opportunity, but slight hopes can be entertained of any good results. Under a more liberal system, the physician and the philanthropist could combine their efforts. The former would not have to encounter disease inveterately fixed on a broken-down constitution; the latter would not find his benevolent designs frustrated by a lengthened career of depravity now become habitual.
The effect of the provision which offers medical aid to prisoners only is, that every woman of the town will try all possible means to dispense with the treatment. It is only when she has actually fallen to the lowest deep of her class, when one step more will plunge her into a bottomless abyss of helpless and hopeless woe, that she will voluntarily accept the proffered aid. She will endure torture from her maladies, or rely upon the assistance of empirics, and submit to all their extortions, rather than become a prisoner. But when every resource is exhausted, and her physical torments plainly tell her that she must obtain medical relief or die, then she submits. Once in the hospital, she is relieved, after a period of protracted sickness, and leaves it to return to her old haunts, because she can go nowhere else, the law having affixed the additional disgrace of imprisonment upon her former bad character. Sociality is a characteristic of human nature, and if these women can not gain admission to any company but that of the vicious and abandoned, they prefer that to solitude. Returned once more to her former associates, the time soon comes when farther medical assistance is needed, and thus she alternates for a few months or years between prison, hospital, and brothel, till death puts an end to her sufferings, and a nameless grave in Potters’ Field receives the remains of one whom charitable measures, properly applied, might possibly have made a useful member of society.
The sense of shame which follows a single deviation from the paths of virtue drives many women to prostitution. Why add to the existing sense of shame another infamy when she unfortunately contracts disease? Can we consistently blame her if she becomes callous, when every legal provision directly tends to indurate her sensibilities? The misconduct of parents toward children has been shown as one of the causes of prostitution. The father or mother drives from the paternal roof the child who has committed but a single error. Then, under the pressure of hunger, she inevitably sins more deeply, becomes diseased, applies to the public for relief, and is sentenced to imprisonment! The first mistake, that of the parents, makes her vicious: the second mistake, incarceration, confirms her in vice. We denounce such ill-treatment in the parents, while practically we ourselves, as the natural guardians of all who need assistance, are doing precisely the same thing. Where, then, is our consistency? If it is right for us, a body corporate, to practice such cruel oppression, is it not equally justifiable for each member of the body to act in the same manner in his individual capacity? Of course, what is right for the multitude must be right for the individual, and our own conduct convicts us of inconsistency. We have no warrant to condemn parents for single acts which we perform collectively; or, if we are right in censuring them, we are wrong in performing the same acts ourselves: if they are reprehensible, we also are culpable.
This system, with all its absurdity, its prejudicial effect on public health, and its obvious tendency to immorality, is not adequate to stay the destroying scourge; on the contrary, it is likely to extend its ravages. If a prostitute, arrested and committed to Blackwell’s Island for drunkenness or any disorderly conduct, is found to be diseased, or if she commits herself knowing that she is infected, she is immediately placed under medical charge. She will probably remain contentedly in the hospital until the worst symptoms of the disease are subdued: by this time the discipline of the institution has become irksome to her. She communicates with the brothel-keeper with whom she formerly boarded, or with some “lover” or acquaintance, who sues out a writ of certiorari or habeas corpus, which instantly effects her discharge. She now returns to her former haunts, half-cured, again to aid in disseminating disease, farther to undermine her own constitution, and to infect men who will in turn become a charge upon the tax-payers, or by their agency cause others to become thus liable. The instance of wholesale release mentioned in the previous chapter will recur to the mind of the reader.
The experience of almost every day confirms these statements. It is well known that there are those who hang around the various police courts expressly to attend to such business, and who make a large income from this source, exclusive of other matters pertaining to prostitution in which they occasionally exert their abilities. The vagrancy commitments by which women are “sent up” are generally insufficient, and there is no legal power to detain them, and force them to submit to the treatment they so much require. It has been asserted by legal men of high standing that nearly the whole of the commitments issued by police justices are defective, and that there exists in law no impediment to the immediate discharge of every prostitute now on Blackwell’s Island. The public can readily perceive the necessary inefficiency of these institutions so far as the prevention of venereal disease is concerned.
The facility with which prostitutes committed to Blackwell’s Island can obtain their discharge may be attributed to want of care in making out the commitments. A recent statute (1854) prescribes the form in which these should be made, requiring the recital of admitted or substantiated facts, and the filing of a copy of the original in the office of the clerk of the Court of Sessions. These requirements are not observed, and the reason assigned by magistrates is, that their own time, and the time of their clerks, is so fully occupied by the press of business before them that they can not proceed as minutely as the act directs. This confirms the view already expressed of the impolicy and impropriety of placing such onerous and extra-judicial duties upon the justices. But as they would be liable to be sued for false imprisonment if they committed under this act without observing all its requirements, they issue their commitments in the old form required by the Revised Statutes, and are sheltered thereby from ulterior consequences. These commitments direct the persons to be confined in the Penitentiary, but the local arrangements of Blackwell’s Island require them to be sent to the Work-house, and unless this transfer is actually made in each case by the Governors of the Alms-house—for they can not deputize their power—it is a waiver of the right of custody, and consequently entitles the prisoner so transferred to a discharge. It has been claimed that the Work-house is a part of the Penitentiary, but this point has been overruled, because the statute establishing the Work-house plainly shows a contrary intent.
A prisoner is entitled to a discharge on another ground, namely, because the commitment has not been filed as directed; or, on another ground, that the commitment does not recite the evidence by which the fact of vagrancy was proved. A final ground of discharge, which is never pressed till all the minor technicalities have failed, is that the whole proceeding is illegal because the statute of 1854 has not been complied with.
On these grounds a writ of certiorari or habeas corpus is sued out, the preliminary steps being a petition from the prisoner or his friend, setting forth that he is illegally detained, an affidavit of verification, and a certificate of the clerk of the Court of Sessions that the commitment has not been filed in his office. Upon the presentation of these documents, the judge to whom application is made issues the required writ, and specifies the time at which it shall be returnable. The action of the two writs is similar, excepting that a writ of habeas corpus requires the production of the prisoner before the judge in addition to a return of the cause of detention, while a writ of certiorari only requires a return of the cause of detention. The return is made by the person having custody of the prisoner, and consists of a copy of the commitment under which he is held; and, from the already-stated informality of these documents, it will be apparent there can be no legal ground for his detention. The judge is strictly prohibited from entertaining any question beyond the legality of the papers; with the moral aspect of the question he can not interfere, and as the commitments are generally informal he has no alternative but to discharge the prisoner.
Application for these writs must be made in the name of an attorney, but such name is often used by an agent who transacts the business, and divides the fee with his principal.
From this sketch it will be evident that, if the prescribed form were observed in these commitments, frequent discharges would be avoided, or there would be so many difficulties to surmount that they would be very rarely attempted.