Public Indecency in England 1857-1960

'A Serious and Growing Evil'

David Cox, Kim Stevenson, Candida Harris, Judith Rowbotham, David J. Cox

• Publisher: Routledge
• Year: 2015
• Print ISBN: 9780415524711
• eBook ISBN: 9781317573821
• Edition: 1
• Topic: History
• Subtopic: British History
• Index: History

Throughout the nineteenth century and twentieth century, various attempts were made to define and control problematic behaviour in public by legal and legislative means through the use of a somewhat nebulous concept of 'indecency'. Remarkably however, public indecency remains a much under-researched aspect of English legal, social and criminal justice history.

Covering a period of just over a century, from 1857 (the date of the passing of the first Obscene Publications Act) to 1960 (the date of the famous trial of Penguin Books over their publication of Lady Chatterley's Lover following the introduction of a new Obscene Publications Act in the previous year), Public Indecency in England investigates the social and cultural obsession with various forms of indecency and how public perceptions of different types of indecent behaviour led to legal definitions of such behaviour in both common law and statute.

This truly interdisciplinary book utilises socio-legal, historical and criminological research to discuss the practical response of both the police and the judiciary to those caught engaging in public indecency, as well as to highlight the increasing problems faced by moralists during a period of unprecedented technological developments in the fields of visual and aural mass entertainment. It is written in a lively and approachable style and, as such, is of interest to academics and students engaged in the study of deviance, law, criminology, sociology, criminal justice, socio-legal studies, and history. It will also be of interest to the general reader.

1 The historical background

Indecency and the rise of moral activism

Introduction

In focusing on the period between 1857 and the 1960s, account needs to be taken of the reality that attempts to define and control ‘indecency’ by use of the English legal process clearly predate our starting point and left a legacy which framed the later efforts. Consequently, the picture of events in this crucial century for the management of public indecency can be well understood only after a brief consideration of the legacy of earlier efforts, especially in terms of how this shaped contemporary comprehensions of indecency (and decency). In England and Wales, as outlined in the Introduction, one result of the Protestant Reformation and the setting up of a State church in the shape of the Church of England, was a slow but increasingly substantial secularization of the moral management of communities.¹ It was part of a process which was to affect all of Europe, including Catholic States, but the creation of an established Church gave an authority to Anglicanism which mirrored the ecclesiastical authority of the papacy and yet incorporated a secular dimension from the start because the head, or Supreme Governor, of the Church of England was also the monarch or head of the secular State.² There was also, given the quasi-nationalist dimension that was intrinsic to that Church, a will to revisit canon law and reject those elements which were seen as too ‘Catholic’ and so challenging to English monarchical authority as well as to Protestant theology. While Church Courts survived the Reformation, their legal processes tended to reflect the values and expectations of medieval society as well as one which was Roman Catholic.³ To an increasingly urbanizing and capitalist society, as well as a Protestant one, the Church Courts were seen as clumsy and inflexible. Both informal control in the shape of opprobrium from the parish priest and formal attempts by spiritual authority to regulate public indecency through the Church Courts (irreligiously also known as ‘Bawdy Courts’) had diminished. This had been obvious to those in government; as Langford states, ‘generations of politicians had learned to treat religion as a matter of private conviction and public indifference.’⁴ Numerous Acts, collectively known as the Ecclesiastical Courts Acts, enacted between 1787 and 1860, severely curtailed and emasculated the power and role of the Church Courts.⁵

One thing which underlines this is the reliance of the SRM on the secular magistrates’ courts as the locus for their prosecutions, rather than the ecclesiastical courts. The ambition of the SRM was to reform the nation through eradicating from it indecent and ‘unmannerly’ behaviour of the type considered to have become all too prevalent since the Restoration of 1660. The Glorious Revolution of 1689 had alerted the nation’s moralists to how well-established the Devil’s work was, and spurred a will to stern action in the campaign for reform. It was no longer considered sufficient to exhort and persuade through sermons and good example. Instead, the SRM, through its various branches, paid informers to seek out examples of public indecency and bring prosecutions against the offenders.⁶ Though officially interdenominational and with a strong membership among dissenting ministers, in fact many of the prominent supporters and even members of the SRM were Anglican clergy. Men like Thomas Tennison (Archbishop of Canterbury), for instance, as well as figures like Gilbert Burnet (Bishop of Salisbury) and prominent local clergy like the Reverend Thomas Caryll of Nottingham, might have been expected to seek remedies for the perceived disorder and indecency of the nation through the courts that particularly belonged to the national Church, but they preferred the secular courts because of the relatively greater speed of the processes there as well as their capacity to inflict heavier punishments such as floggings.⁷ As a result, the ecclesiastical courts became identified even by their natural supporters as increasingly redundant, especially as numbers of clergymen were amongst those acting as Justices of the Peace or Magistrates. Practically, they could thus ensure that a Bench was alert to the need to combat sin by use of the law.

The SRM effectively died out by the 1730s (though there were attempts in subsequent years to revive it, and the late eighteenth-century Society for the Suppression of Vice and the Encouragement of Religion and Virtue [hereafter SSV], was a clear inheritor of its principles) but it acted as a catalyst for the previously slow process of decline in the use of the ecclesiastical courts.⁸ In terms of their impact on everyday life, this was largely concluded by the end of the eighteenth century. In practice, what this also meant is that while Anglican clergy and dissenting ministers continued to promote both morality and public propriety, the regulation of public decency was also increasingly a secular matter. There was a readiness to accept this because there was already a strong tradition of community management of inappropriate behaviour of various kinds, as David Nash and Anne-Marie Kilday have shown in their work on shame and shaming punishments.⁹ This covered offenders such as female scolds and nags, but also immoral behaviour such as adultery and prostitution, especially where these were particularly blatant and so a matter of community gossip. This was capitalized on by elements in the educated elite who took upon themselves the responsibility of civilizing and managing those popular efforts at promoting public decency within communities, which could often be ‘uncivilized’ in themselves.¹⁰

As discussed in the Introduction, it was during the eighteenth century that ideas linking Britishness and civilization were firmly established. These ideas had a popular appeal, but also an intellectual one, manifesting itself as a corollary to Enlightenment thought in Britain. Unsurprisingly, therefore, this also had its effects on jurisprudential thought. Amongst others, the lawyer Sir William Blackstone reveals how practice and intellectual justifications combined in Enlightenment legal thinking. The point of Blackstone’s renowned Commentaries on the Laws of England was to explore the contemporary state of the law through its historical evolution (he held the Regius Chair of Legal History in Cambridge) in order to show how superior those laws then were to all previous systems.¹¹ As part of this exercise in nationalist jurisprudence, Blackstone took care to comment on matters of public decency and challenges to these. Interestingly, he was clearly conscious of the core ambiguity surrounding the sharing of responsibility between Church and State, recognizing it as something difficult to resolve in a State headed by a figure who was head of the secular arm of governance and the ecclesiastical as well. But also, this ambiguity did justify and explain the feeling of responsibility that legislators and lawyers as well as religious leaders felt for promoting the agenda for eradicating public indecency. Writing in 1769 and reiterating earlier pronouncements, Blackstone confirmed that he considered ‘open and notorious lewdness: either by frequenting houses of ill-fame…or by some grossly scandalous and public indecency’¹² to belong in the category of ‘offences against God and religion’. This located indecency alongside (amongst other transgressions) drunkenness, swearing, and profanation of the Sabbath. But Blackstone also made it plain that while the legal position was that responsibility for regulating and shaping the behaviour of individuals and the moral standards of society did not lie primarily with the secular State and the law as its arm of enforcement, there was a duty to act in the national interest.

This is the context in which the shift towards a more criminalizing secular management of what was becoming identified as indecent behaviour became visible in the rise in organized – and sometimes highly influential – morality campaigns generated by the rapidly expanding voluntary sector of political society.

This was also a period when the law was, itself, evolving and becoming more formalized in many of its processes through a growing reliance on statute law. A discrete criminal law emerged in this period as a result of the use of statutes to identify individual conduct which was held to be so threatening to the moral welfare of the community that it deserved to be called ‘criminal’. In the eighteenth century, the core preoccupation was with legal protection of property, epitomized in its most simplistic sense by the ‘Black Acts’.¹³ Taken together, these Acts were, in effect, a catalogue or code of felonies and capital crimes and accompanying legal responses or ‘punishments’. But – as was already established in the common law tradition – reputation or character was counted as property, both for individuals and communities. This helps to account for the readiness of the emerging criminal justice process to accept as criminal those acts or wrongdoings which were interpreted and recognized as immoral and therefore illicit behaviour.

The focus for this volume is the development of a sophisticated conceptualization of indecency as a problem for the nation, instead of a predominantly lower-class manifestation of ‘bad behaviour’ with no wider than local or individual implications. While it is not yet fully evolved, it is clearly rooted in this period. What was not yet present was the wider comprehension of indecency as a product of circumstance and not individual volition or sin. The associations between deprivation and crime began to emerge only in the late eighteenth century, when the concept of indecency in broad terms became part of a new way of framing responses to low-level everyday criminality. The focus became more directed toward changing and civilizing behaviour rather than imposing automatic punishment, through aids such as the emerging Sunday School movement and Hannah More’s Cheap Repository Tracts. The moral crusaders of the late eighteenth and early nineteenth century were effectively the first to link crime with social welfare reform by seeing crime as a manifestation of an inner sinfulness and lack of moral fibre.

This approach repeated itself in the late nineteenth and early twentieth century. In Edwardian England, fears of radicalism among the working classes and a rising perception of ‘national degeneration’ (a term which is an interesting Social Darwinist twist on the earlier ecclesiastically based notions of immorality) appear to have resulted in a pervasive sense of crisis, or loss of control, amongst both middle and upper classes. This is at least part of the context for a renewal of moral campaigns against indecency and of determined (and partially successful) attempts to incorporate this particular world view into a legal framework. By way of historiographic introduction this chapter explores in more detail how earlier attempts to delineate and ‘manage’ indecency underwent a shift from ecclesiastical control to State control. By the mid nineteenth century social and cultural obsessions with indecent behaviour which had gradually assumed a stronger profile within the common law at the start of the eighteenth century had a range of statutory provisions on which to draw, even though much of which was not explicitly characterized as indecency legislation.

Encouraging piety and virtue

A national dimension to moral thinking about individual conduct was a constant undercurrent in the various campaigns for the improvement of society that manifested themselves from the late seventeenth century on. Efforts were made to deal legally with affronts to virtue and national morality, and as already mentioned, this resulted in a will to shift away from an exclusive ecclesiastic control of matters of morality and an acceptance by the secular State of an assumption of responsibility for management of such issues. However, it should not be thought that these eighteenth-century campaigns were consistent in terms of their targets when seeking to improve the nation, or that the manifestations of public indecency that moralists were concerned about were linked to vice in the shape of sexual immorality, as was the case in the post-1857 period.¹⁴ In a reaction that partook substantially of what later became identified as moral panic about the dangers of behaviour linked to a ‘Satanic’ view of Roman Catholicism in the wake of the Glorious Revolution of 1688, the SRM emerged in London during 1690.¹⁵ There, its strongest manifestation was in Tower Hamlets, but it spread more widely and attracted the support of William and Mary (both known as personally devout and godly in their habits) and leading politicians as well as some leading Anglican figures like the future Archbishop of Canterbury, Thomas Tennison. Consciousness of the narrow escape from the religious persecution that, it was believed, would inevitably have followed in the wake of leaving a Roman Catholic dynasty on the throne helped to give it a national dimension. Branches were set up in a number of provincial towns and cities, including Bristol and Nottingham. While sharing the name, these branches were largely independent of any central organizing policy or individuals. The Nottingham branch, for instance, one of the earliest and most active, being certainly in operation by 1692, attracted – to the disapproval of the Archbishop of York – a considerable number of dissenting ministers to it. Propaganda for the cause of reformation of manners...

Table of contents

• Cover
• Title
• Copyright
• Contents
• List of tables
• Preface and acknowledgements
• List of abbreviations
• List of cases
• List of statutes
• Series editor introduction
• Introduction: Defining public indecency
• 1 The historical background: Indecency and the rise of moral activism
• 2 The intensification of the indecency agenda 1857–1885
• 3 ‘Demoralization’ and moral activism: Fighting the ‘serious and growing evil’ 1885–1908
• 4 A real or imagined enigma? ‘Stemming the tide of corruption’: Indecency 1908–1960
• 5 ‘Indecorous and inexpedient’: Visual and aural indecency in the dramatic arts 1857–1960
• 6 Indecency in practice: The policing and judicial response
• 7 Intoxicated indecency: How the drink problem was resolved
• 8 Conclusion
• Bibliography
• Index