The CDAs Controversy Summarized

As noted earlier, the CDAs were promulgated in 1864 to prevent the transmission of sexual diseases among army and navy personnel.Footnote ¹³ Initially, the CDAs were localized to specific geographical areas; namely, the English towns and ports with significant military populations. The scope and power of the Acts were extended in 1866, 1868, and 1869, with little or no parliamentary opposition. However, the amendments of 1869 precipitated the objections of many and catalyzed them into a formidable political movement that led the British government to set up the Royal Commission in 1870. A select committee of the House of Commons was also convened in 1879. Bridging both were various parliamentary debates that punctuated the parliamentary equilibrium until 1886, when the Acts were finally repealed.Footnote ¹⁴

According to Frank Mort, the introduction of the CDAs in England represented “the single most important legislative intervention” in the nineteenth century to regulate sexuality.Footnote ¹⁵ This probably overstates the case for the import of the CDAs at the time of their adoption, at least for the first Act in 1864, as it applied only to eleven geographically specific districts—Plymouth, Portsmouth, Woolich, Chatham, Sheerness, Aldershot, Chichester, Shorncliffe, the Curragh, Cork, and Queenstown—at which were based British soldiers and sailors. However, by 1869, the number of districts had grown to seventeen, and had expanded the spaces of policing “to within a ten-mile radius of all districts subject to the Acts.”Footnote ¹⁶ It was the promulgation of the 1869 Act that precipitated the wave of opposition, as it included a non-garrison town, Southampton, within its remit. This expanded the policing of sexual hygiene beyond what had been rationalized when the CDAs were first implemented. In this respect, it can be agreed with Mort that the CDAs were as much about the regulation of sexuality as they were about the prevention of the spread of disease.

However, there is a second sense in which Mort's characterization of the importance of the CDAs might be regarded as overstated. This concerns the historical priority given to their introduction in England as setting something of a template for controlling prostitution and sexual diseases within the British Empire as a whole. If one interprets the idea of regulation in a broad manner, then it is clear that measures to manage prostitution long predated the introduction of the CDAs in 1864.Footnote ¹⁷ Even within the empire, official regimes of regulation already existed, such as in Malta dating back several centuries—perhaps to “the time of the Knights” as Howell has suggestedFootnote ¹⁸—and in Hong Kong from 1857, and from the early eighteenth century, various sanitary measures (including the establishment of Lock Hospitals) to combat venereal and other sexual diseases had been implemented in Penang, and then later in other parts of the Straits Settlements, and in Yogyakarta.Footnote ¹⁹ Although none of these measures were necessarily aimed at regulating prostitution as such, there is no doubt that the regulatory intent was to prevent the spread of venereal disease.

With the enactment of the CDAs, the regulation of venereal disease and prostitution were brought under a common legislative umbrella. This was because the means to combat the disease was to be achieved primarily though the policing and surveillance of those women thought to be prostitutes. In the first years of the operation of the CDAs, this was relatively straightforward, as the authorities were usually able to obtain the names of the women from the infected soldiers and sailors. For the most part, the women apprehended by the authorities were most likely to have been engaged in some level of prostitution and hence, as far as most respectable people were concerned, had been rightfully apprehended. However, once the CDAs were extended to encompass what could be regarded as civilian spaces, it was no longer possible to assume that the women detained by the authorities were necessarily prostitutes. As Judith Walkowitz and Daniel Walkowitz demonstrated, many of these women might have engaged in acts of prostitution; however, this did not mean that they conformed to the typical stereotype of the nineteenth century prostitute.Footnote ²⁰

It was assumed without question that the problem rested with the prostitutes rather than with their customers, the soldiers and sailors of the garrison towns. The problem was defined as the high rates of sexual disease within the military stationed in these towns, the cause was identified as the women who provided the sexual services, and the solution was therefore simple: inspect the women and refer the infected ones to appropriate medical treatment. For the military authorities (and their parliamentary and medical supporters) this was logical, and the belief that the CDAs were influential in reducing the spread of disease was widespread long after the Acts had been repealed.Footnote ²¹ However, the Acts did more than simply empower the authorities to identify and detain infected women; they required the registration of those deemed to be prostitutes and, subsequently, their regular examination by a medical authority. The CDAs allowed for women to choose to be examined; however, if they refused to do so voluntarily, they could be brought before a magistrate and forced to agree to a medical inspection. Moreover, those determined as having venereal disease could then be detained for up to 9 months in what were known as Lock Hospitals. If women refused to subject themselves to medical detention, they were liable for “imprisonment with hard labour.”Footnote ²² The burden of proof was placed on the woman to prove that she was not a prostitute, or at least that she was a woman of virtue. Therefore, a regulatory apparatus arose that claimed for its rationale the prevention of the spread of sexual diseases.

By its second and third iterations, the CDAs were no longer confined to the detection of disease. They now included the surveillance of any activities in which a woman might be behaving in ways deemed by the authorities to be less than proper. There were no clear criteria to identify a woman as a prostitute, and often it was merely the view of the arresting officer that a woman was of loose morals. Moreover, surveillance activities expanded to include undercover type work by using police recruited from the Metropolitan Police Dockyard Division to detect women working as prostitutes.Footnote ²³ This meant that the margin for error, never really narrow even with the first CDA, widened appreciably. Many women found themselves having to prove their virtue as a result of the allegation of a police officer. In many respects, it was this expansion of the policing power and the growing incidences of its arbitrary operations that created the catalyst for public opposition to the CDAs.

Opposition was slow to make itself felt, but by 1869, there were two key groups agitating for the repeal of the CDAs. One was the National Association for the Repeal of the Contagious Diseases Acts. It was made up of businessmen, clergy, and several prominent members of Parliament. The other was the National Ladies Association for the Repeal of the Acts. Its secretary was Josephine Butler, whose fame partly rested on her political agitation against the CDAs. The key points of opposition were that the CDAs marked women as the problem, that women were forced to undergo genital examination at the behest of the arresting officer or magistrate, and that the Acts upheld (and promoted) a sexual double standard. In many respects, these were also the types of criticisms that John Stuart Mill made to the Royal Commission on the Administration of the Contagious Diseases Acts. Before we go on to examine his views, however, it is necessary to note here that the opposition to the CDAs, at least in the first few years, was not well received by prominent men.

The masculinist backlash was quite extreme, so much so that Josephine Butler's husband made a public statement denying that his wife had taken up the cause because she was unhappy or dissatisfied with their marriage.Footnote ²⁴ Numerous men politicians expressed decidedly hostile views to Butler's work, among them Sir James Elphinstone MP, who declared that he “look[ed] upon” Butler and her supporters “as worse than the prostitutes.”Footnote ²⁵ In addition, the CDAs had been endorsed by “the intellectual might of England: the Presidents of all the Royal Medical Colleges, the Warden of All Souls, Oxford and the Master of Trinity College, Cambridge were prominent supporters.”Footnote ²⁶ Although the learned academy might not have been quite as vociferous as Elphinstone, it is clear that the level of opposition facing Butler and her colleagues was both formidable and organized. Almost all of those favoring the CDAs saw them as working for the public good. The infringement on the liberties of a small class of women was seen as a necessary means to ensure that the greater good was achieved. However, as Butler and her supporters reminded these proponents of the Acts, it appeared to be only a partial understanding of the public good. A similar position was taken by John Stuart Mill, and it is to his testimony before the Royal Commission that we now turn.

Mill on the CDAs

For some scholars, such as Waldron, Mill's testimony before the Royal Commission appeared to contradict his “harm principle” as expressed in On Liberty, and this in turn might be interpreted as contrary to the public good. This prompted Waldron to develop an argument to demonstrate that Mill's testimony did support measures to realize the public good if one understands that his “harm principle” was also informed by a commitment to distributive liberty.Footnote ²⁷ Although we agree with Waldron that Mill remained committed to the public good, we would argue that Waldron was mistaken in his view that Mill's evidence contradicted his “harm principle.” As we shall demonstrate, Mill's evidence was entirely consistent with it. This is because Mill's political and philosophical position was sensitive to the politics of gender. He recognized that what was represented at the time as the public good was weighted against the needs and interests of women. In presenting Mill's testimony, the importance of his wider political philosophy, especially his feminism, for his opposition to the CDAs cannot be understated. However, when it comes to scholarship on the CDAs, there is surprisingly little discussion of Mill's opposition, and even within the subset of that scholarship with a specifically feminist perspective, Mill's contribution receives short shrift.Footnote ²⁸

We shall return to his political philosophy later, but here it is worth noting that appearing before a Royal Commission was no small occasion. It was a very public act and hence would not have been taken lightly. Mill was a public figure, a former member of Parliament (1865–68) and was well known for his outspoken support of social reform measures. One of the interesting aspects of Mill's views in the context of a Royal Commission is that the mode of evidence meant that he was subject to cross-examination. It is in the nature of royal commissions that, despite the usual parliamentary rhetoric to the contrary, they are expected to serve the purposes of those who set them up, in this case the government that had nominal responsibility for the Acts. Consequently, Mill's claims could not and did not go unanswered by the commissioners. He was obliged to defend those claims with reasoned arguments, not with “out of hand” dismissals as claimed by some scholars.Footnote ²⁹

Mill prefaced his testimony with an acknowledgement that he did not have a practical, working knowledge of the Acts, but that in his view this was not an issue of any consequence for his position. Throughout his testimony he made two things quite clear to the commissioners. First, his opposition to the Acts was founded on principle; namely, that the Acts were “opposed to one of the greatest principles of legislation, the security of personal liberty.”Footnote ³⁰ Second, the legislation was partial and discriminatory; it really only threatened the personal liberty of one particular class of persons: women. Although he acknowledged that the purported targets of the Acts were women prostitutes, in his view, the liberty of all women was threatened. He was questioned on this point by Nathaniel Massey who put it to him that “The Act of Parliament in express terms applies only to common prostitutes, plying their trade within the protected districts.” In response, Mill argued that the Acts gave the police discretion that may well allow them to apprehend “modest women, or women at any rate not prostitutes.” The power to apprehend women on suspicion and have them examined was a power “liable to very great abuse,” because, even if it was the case (as the commissioners claimed) that no instances of abuse had been recorded, Mill argued that “when power is given that might easily be abused, we ought always to presume that it will be,” and as such it was a power that ought not be given by such legislation.Footnote ³¹ The potential for a policing power to be abused was also a point emphasized by Mill in On Liberty.Footnote ³²

Mill accepted that the purported object of the Acts was to “protect the innocent from having these diseases communicated to them.”Footnote ³³ Having acknowledged this general objective, he immediately identified the double standard of the rationale for the Acts. The beneficiaries of this particular legislation were to be the soldiers and sailors of the garrison ports, because it was the alleged incidence of venereal disease within the garrison towns that prompted the legislation in the first place. As he pointed out to the commissioners, the soldiers and sailors (and men clients in general) were not innocent victims, but complicit in their own infection insofar as they sought out and had, indeed paid for, connections with the alleged source of their disease. Consequently, argued Mill, if the government was serious about eradicating diseases of this sort then it would be better served to police the men.Footnote ³⁴ He noted that “the same system of espionage which is necessary to detect women would detect also the men who go with them.”Footnote ³⁵ However, he was not actually advocating “a system of espionage” because he did not “recommend the Acts at all”;Footnote ³⁶ rather, he raised the idea of “espionage” to illustrate the one-sided operation of the Acts: “I am not suggesting espionage; but if it is already in practice on women who go to brothels, with a view of ascertaining whether a woman is a prostitute by her being seen there, I think the woman should not be singled out to be subject to examination, but the men should be subjected to it also, or even if the women were not subjected the men might be, but if the one is, certainly I should say both.”Footnote ³⁷

Here we see once again Mill's concern with the equality of treatment before the law; an equality clearly breached by the terms and operation of the Acts.

It was not just that the CDAs singled out a particular class of women, and only women, for arbitrary policing. For Mill, these women were also denied due process because a woman accused of prostitution had “no power to defend herself in the same manner as before any ordinary tribunal, and of being heard by counsel.”Footnote ³⁸ The commissioners pointed out to Mill that women had a choice to submit voluntarily, and if they objected to be brought before a magistrate, in that case would have the opportunity to be “heard by counsel.” Mill agreed that a voluntary submission to medical inspection on the face of it was not an infringement of liberty. He disagreed, however, that the system of summary tribunals provided adequate legal protection for the women. Further, he argued, that “all the protection, which is necessary in other cases of judicial investigation, would be necessary in this,” because for a woman who was not a prostitute there could “hardly be any more serious case” than to have her reputation maligned by an accusation of being a prostitute.Footnote ³⁹ But the choice itself was hardly voluntary, especially as it presumed guilt on the part of the woman; if she refused a medical examination she had to prove to a magistrate that an examination was not warranted; in short, she had to prove her innocence.

In noting the issue of reputation for women who were not prostitutes, Mill revealed his Victorian sensibilities and to some extent class-based view of prostitution. His juxtaposition of the non-prostitute woman with the prostitute was, as Linda Zerilli has noted, “an uncritical acceptance of the nineteenth century binary opposition between the depraved and modest woman.”Footnote ⁴⁰ Allied to this dichotomous way of framing women's social character was another view, that of men as sexually insatiable, and hence, “male lust was the driving force behind prostitution.”Footnote ⁴¹ From this it followed that prostitution was a necessary evil that needed to be tolerated for the good of society. Zerilli also suggested that by invoking this binary opposition, Mill repeated the dominant social prejudice that “figured the prostitute as the origin of the chain of contagion.”Footnote ⁴² However, Mill's position was not so clear cut. Although it is true that his political economy language of supply and demand might have yielded, as Zerilli argued, a moral economy view of prostitution informed by his political economy, it is not the case that Mill saw men as sexually insatiable such that prostitution was a necessary evil. To the contrary, he did not see prostitution as something that would always be with us, because he also advocated self-restraint by men, in and out of marriage. His view that marriage should be shaped by genuine mutuality and companionship downplayed the sensual,Footnote ⁴³ which he thought could be kept in check by self-control and education.Footnote ⁴⁴ Even if he was somewhat naïve (even moralistic) in his view of human sexuality, this nevertheless demonstrates that he did not regard how humans acted on their sexual needs as innate, and hence, this was not, in the case of men, a justification for the institution of prostitution.

Mill also argued that even if a woman submitted voluntarily to the medical inspections, the Acts were still objectionable because they provided before the fact protection against “the consequences of immoralities of any kind” rather than “remedying the consequences after they occur.”Footnote ⁴⁵ The effect would be for the government to condone immorality, if not give its outright stamp of approval. This was a view that the commissioners attacked from a number of angles,Footnote ⁴⁶ but Mill remained unshakeable in his view that the Acts were objectionable in principle, partly because they appeared to condone immorality and licentiousness, and partly because they were lopsided and discriminatory. For some scholars,Footnote ⁴⁷ the question of immorality loomed large in their evaluation of Mill's opposition to the CDAs, but as the foregoing demonstrates, the central problem for Mill was the sexist thinking informing the CDAs. In Mill's view, this thereby condoned the infringement of women's liberty (and the concomitant punishment of those particular women who facilitated the sexual indulgences of men), and hence in the second place, gave de facto government approval to immoral and licentious behavior (principally to benefit men).

Finally, Mill also addressed the issue of what constituted “public good” in the context of the CDAs, because the commissioners put to him that the Acts had been promulgated in the interest of the public good. However, Mill was having none of it. Although the rationale for the CDAs was the prevention of the spread of contagious diseases, the reality of these particular acts was to protect the men who engaged with prostitutes. In Mill's view, if the CDAs were to have any object at all, then it should be to protect “those who are liable to take the disease without any voluntary exposure to it on their own part.”Footnote ⁴⁸ In and of itself, neither the sexual health of prostitutes nor of their customers was the proper province of government if such sexual diseases were to be dealt with in isolation from other contagious diseases. That is, Mill was of the view that there should be no “special favour to this class of diseases” unless they were “part of a general system” for handling all infectious diseases. What Mill objected to was “having special legislation for those women, which would have the effect of singling them out for a special cure, to which persons with other equally bad diseases are not subject.”Footnote ⁴⁹

The public good would be served by dealing with contagious diseases across the board and not just a particular “class of diseases,” through measures that not only protected the customers of prostitutes—men—but also discriminated against prostitutes and by extension all women. Moreover, the CDAs were unable to protect those who neither sought out prostitutes nor placed themselves in a position to contract the disease, because for the most part, the Acts addressed the problem after the event. In Mill's view, the CDAs “cannot be made effectual enough to stamp out these diseases unless it is made much more strict than it is, consequently much more oppressive to women, and still more liable to abuse.”Footnote ⁵⁰ The CDAs merely enshrined men's privileges, and by extension, reinforced their sexual despotism while simultaneously denying personal liberty to women, a reflection of the view Mill had developed in some detail in The Subjection of Women, published only 2 years earlier. The effect of the CDAs was to give the imprimatur of the state to men's sexual license, while punishing some women and putting all women at risk of enforced medical examinations. Hence as far as Mill was concerned, the alleged public good was partial.

Waldron on Mill's “Harm Principle” and the Elision of Mill's Feminism

For Mill, there was no contradiction between his general political philosophy of liberty and his testimony before the Royal Commission. However, as has already been noted, Waldron questioned how the author of the “harm principle” could have opposed the CDAs, as they were for all intents and purposes aimed at preventing harm. We have already detailed Mill's position on this, and noted briefly Waldron's answer to this question, but it is worth looking at it in a little more depth. Waldron reread Mill's arguments in On Liberty to show that the “harm principle” is not exclusively about choosing between the liberty of some (i.e., a seemingly discriminatory move) and achieving the security or good of the many. In his view, within Mill's argument in On Liberty, there is also a concern, albeit “muted (although not absent),” not just with the aggregate but with “the distribution of restrictions.”Footnote ⁵¹ Mill's argument about liberty and the “harm principle” should be understood in terms of the latter “answer[ing] to concerns voiced in behalf of individuals not on behalf of liberty in the aggregate.” Waldron noted that “this is very clear from the language Mill uses to formulate his principle.” He then restates Mill's “harm principle,” stressing the parts that allegedly demonstrate Mill's preference for individuals; namely, “of any of their number” and “any member.”Footnote ⁵²

Waldron concluded that reinterpreting the arguments in On Liberty in terms of Mill's “Contagious Diseases intervention” enables us to demonstrate what “we should have been emphasizing all along”; namely, that “Citing the prevention of harm is not a way of rebutting concerns about a discriminatory or inequitably distributed restriction on liberty.”Footnote ⁵³ If a particular piece of legislation produced an uneven distributive impact on people's liberty, then it was insufficient to cite the “harm principle” in its defense. Such legislative acts “deserve[.] the closest scrutiny” because it may well be the case that they are legitimizing “prejudice and social apathy” in the form of “apparently respectable legislative campaigns.”Footnote ⁵⁴ In this way, Waldron managed to provide an explanation that reconciled Mill's objections to the CDAs with his earlier arguments in defense of liberty. We would agree with Waldron on this point; however, he achieves it at a very high price. What is missing from Waldron's account is the contribution of feminist principles to Mill's political position. Waldron's explanation completely elided Mill's feminist sensibilities.

This is curious because Waldron acknowledged that Mill held feminist views that were important for his political thought. However, their significance and importance for Mill's political philosophy were not given any attention beyond the most cursory of comments. He acknowledged that Mill was committed to feminist principles to the extent that he pointed out that he wanted “to examine Mill's feminist objection to the Contagious Diseases Acts” in the light of Mill's “insistence on asking whose liberty was affected and his complaint that the liberty of men was not affected in anything like the way in which the liberty of women was affected.”Footnote ⁵⁵ However, at no stage did he address any of Mill's feminist arguments as expressed in, for example, The Subjection of Women, beyond noting the book's existence, and that Mill wrote it. Rather, Waldron took the particularity of Mill's objection as given, as if that was all that needed to be said about Mill's “feminist objection.” In an almost throwaway comment, Waldron noted that his essay “brings together the author of On Liberty and the author of The Subjection of Women so that both can confront Mill the progressive.” Therefore, Waldron posited three Mills: the feminist, the liberal philosopher of liberty, and the progressive who “believed firmly in government taking the initiative to promote public health and hygiene.”Footnote ⁵⁶ Hence, no more needed to be said about why Mill volunteered to present his views to the Royal Commission. Rather, what needed explaining was why Mill was implacably opposed to the CDAs.

This is underscored by the way in which Waldron separated Mill into these different facets, in particular that of Mill the feminist (i.e., “the author of The Subjection”) and Mill the liberal (i.e., “the author of On Liberty”), neither of which needed to trouble the other. Neatly compartmentalized, Mill's feminist sensibilities were represented as if they had no apparent relevance for any other of Mill's works, in particular On Liberty, the text of choice for Waldron's argument. However, the fact that Mill wrote On Liberty in collaboration with Harriet Taylor should have suggested to Waldron that it might have borne some traces of their jointly shared feminist sensibilities.Footnote ⁵⁷ At the very least, it might have suggested a need to consider whether the feminist ideas that he acknowledged as present in The Subjection might also have been present elsewhere in Mill's other works, especially On Liberty. However, Mill's feminist ideas were not incidental to his political philosophy; rather, they were an important part of it. They helped frame his philosophical and political opposition to the CDAs, going way beyond the argument from morality that Waldron wanted to attribute to Mill, at least by association with many of his contemporaries (such as Josephine Butler) who couched their opposition in distinctly moral terms.Footnote ⁵⁸ Although Mill's testimony occasionally exhibited similar turns of phrase, his opposition remained framed by a political philosophy informed by clear feminist principles. By eliding Mill's feminism, Waldron's rereading of On Liberty represented Mill's position in terms of liberty only, and as such, he set up a tradeoff between liberty and the public good mediated by the “harm principle,” However, such a tradeoff is both unnecessary and mistaken, as is revealed by even a cursory glance at the place of Mill's feminist thinking within his political philosophy as a whole.

On Mill's Feminism

Waldron is not the first scholar to elide Mill's feminism, although he at least acknowledged it as part of Mill's philosophical standpoint. Others have gone much further in denying that it was of any consequence for his political philosophy, especially where the nature of his intellectual relationship with Harriet Taylor is concerned.Footnote ⁵⁹ In identifying some of Mill's explicit feminist comments over the course of his life, our intention is to emphasize their embedded-ness within his overall political philosophy. They were not momentary aberrations or the marginalia of his thought, but were an integral part of his overall political philosophy. Irrespective of the much later criticisms by twentieth century feminists of the nature and extent of what has come to be described as “feminist” or “feminism,”Footnote ⁶⁰ none dismiss the importance of his principled stand in the cause of women's social and political equality. In that respect, his views clearly conformed to what might be taken as a generic view of what is meant by “feminism”; namely, that it was a response “to a belief that women have been oppressed and unjustly treated.”Footnote ⁶¹ However, the case for describing Mill's views as “feminist” can be pressed a little further. Feminist historians have debated the applicability of the term, given its origins in the late nineteenth century.Footnote ⁶² Without going into the intricacies of these discussions, it is possible to draw from them a number of characteristics that would warrant describing a thinker's ideas as “feminist,” despite the fact that the thinker's work might significantly predate the historical emergence of the term. These characteristics include a recognition that at the time of their writing there was a gender hierarchy, that they recognized that this hierarchy was socially constructed (not a fact of nature), that their writings critiqued this hierarchy, that they recognized the misogyny (or at least masculinist bias) of the dominant intellectuals of their time and wrote in conscious opposition to it, and finally, that women were understood as a social group whose unequal treatment required collective action to change it. On this basis, it is appropriate to use the term “feminist” in connection with Mill's political philosophy, even if, as already noted, the adequacy of his views might fall short of twenty-first century expectations. There is no doubt that he was an active supporter of women's emancipation, as the publication of The Subjection reveals.

Published in 1869, just 2 years before the Royal Commission, The Subjection was something of a novelty for his contemporaries in that a man, well known and widely esteemed as a philosopher and social reformer, had published a book-length critique of the legally sanctioned sexual basis for men's social and political subordination of women.Footnote ⁶³ However, for Mill, the subject matter was not novel. It had occupied his thoughts in various ways for most of his life, “from the very earliest period when [he] had formed any opinions at all on social or political matters,” and it had only grown stronger “by the progress and experience of life.”Footnote ⁶⁴ The center of this view was that the principle “which regulates the existing social relations between the sexes” was wrong “in itself” and that “it ought to be replaced by a principle of perfect equality admitting no power or privilege on the one side, nor disability on the other.”Footnote ⁶⁵ Although Mill developed a number of arguments in The Subjection in support of this proposition, the one of most importance for our purposes concerns his view of marriage as a form of sexual despotism.

In Mill's view, women were slaves in all but name: “the wife is the actual bondservant of her husband: no less so, as far as legal obligation goes, than slaves commonly so-called,” and as far as property rights were concerned, “the wife's position is worse than that of slaves in the laws of many countries.”Footnote ⁶⁶ He did not accept that women were by nature inferior and men superior any more than he accepted that slavery was a natural condition for human beings. Women's subjection to men came about through social processes built around custom and law that involved women being subjected to a power “common to the whole male sex.”Footnote ⁶⁷ He noted that there were three things that combined to ensure all men could think and act on the idea that “by the mere fact of being born a male he is by right the superior of all and every one of an entire half of the human race.”Footnote ⁶⁸

As a result, men, upon marriage, became petty tyrants (potentially if not always in fact) and women were expected to be their obedient “bond-servants.” As Mill put it, “Marriage is the only actual bondage known to our law. There remain no legal slaves, except the mistress of every house.”Footnote ⁷⁰ Marriage was thus central to women's subjection.

Mill also recognized that the problem of women's subjection within marriage went much deeper than legal equality or property rights. Marriage enforced a form of despotism that was all the more pernicious because of the very personal and intimate nature of the relations it entailed. “Every one of the subjects lives under the very eye, and almost, it may be said, in the hands, of one of the masters—in closer intimacy with him than with any of her fellow-subjects; with no means of combining against him, no power of even locally overmastering him, and, on the other hand, with the strongest motives for seeking his favour and avoiding to give him offence.”Footnote ⁷¹

However, Mill also recognized that precisely because of the intimacies involved, men did not want “a forced slave but a willing one.”Footnote ⁷² Hence men “have therefore put everything in practice to enslave their minds”Footnote ⁷³ so that the domination appears natural to both women and men alike. As Mill asked, not just for rhetorical effect, “was there ever any form of domination that did not appear natural to those who possessed it?”Footnote ⁷⁴ The problem of the subjection of women was not to be found in nature, or as a consequence of the supposed “natural attraction between the sexes,” but rather it was to be found within the prevailing social customs, habits, and laws. Hence Mill concluded that reforming the legislative basis for the relations between the sexes required more than legislation. It required changes to how women and men related to each other, to the long-entrenched habits of thought, and to the stereotypical turns of phrase that helped frame prevailing ideas about the natures and capacities of women (and men).

Mill gave a first inkling of his concerns in this area in an early essay entitled “Periodical Literature: Edinburgh Review” published in the Westminster Review in 1824, in which he noted that “the sentiments which the Edinburgh Review has put forth concerning female character, are as little creditable to itself, and exemplify as completely the characteristic malady of periodical literature, as any which we have yet quoted.”Footnote ⁷⁵ Mill saw this as part of the hypocrisy of the various contributors to the Edinburgh Review that the praiseworthy qualities of the exceptional woman were not what they demanded of the women they married or sought for company. Similarly, in a letter to Thomas Carlyle in October of 1833, Mill berated him for using sexist stereotypes and posed the question: “is there really any distinction between the highest masculine & the highest feminine Character?”Footnote ⁷⁶ The embedding of sexist stereotypes in language was an ongoing concern for Mill. In the third and subsequent editions of A System of Logic (first published in 1843) Mill inserted a footnote decrying the use of the masculine pronoun “to express all human beings” because such use served to “prolong the almost universal habit of thinking and speaking of one-half of the human species as the whole.”Footnote ⁷⁷ In 1848, in Principles of Political Economy, Mill noted that it was “the signal honour of Owenism and most other forms of Socialism that they assign equal rights, in all respects, with those of the hitherto dominant sex.”Footnote ⁷⁸ For Mill, this was a matter of principle “intimately connected with all the more vital points of human improvement,” and he looked forward to a time when “the ideas and institutions by which the accident of sex is made the groundwork of an inequality of legal rights, and a forced dissimilarity of social functions, must ere long be recognised as the greatest hindrance to moral, social, and even intellectual improvement.”Footnote ⁷⁹ These “ideas and institutions” were part of what he termed in a letter in 1858 to an Australian correspondent, Henry Chapman, “the Toryism of sex,”Footnote ⁸⁰ a phrase echoed 3 years later by that of “aristocracies of colour, race and sex.”Footnote ⁸¹ In the letter to Chapman, he chided him about how it was unfortunate that the Australians had taken up the term “manhood suffrage” as it was a “vulgar and insulting expression” that “asserts the exclusion of women as a doctrine, which is worse than merely ignoring them as was done by giving the name universal suffrage to a suffrage limited to men.”Footnote ⁸²

These examples taken from his writings spanning several decades indicate that his views in The Subjection were not a late-life epiphany leading him to tack on a feminist sensibility to an essentially well-established liberalism. Rather, if anything, it was his liberalism that was shaped by his sense of outrage that “an accident of sex is made the groundwork of an inequality of rights.” It is undecidable whether his feminist ideas could be said to be a guiding thread, and hence the touchstone for his overall political philosophy. However, his espousal of the ideal of “perfect equality,” and by extension, the nature of his feminism as expressed in The Subjection, cannot be easily confined just to that one text, especially given his acknowledged collaboration with Harriet Taylor.Footnote ⁸³ Mill's concern about the unequal relations between the sexes clearly helped frame his thinking about abstract conceptual issues such as liberty, equality, and justice. While Zerilli also interpreted Mill's testimony as “figur[ing] the prostitute as the origin of the chain of contagion,”Footnote ⁸⁴ a position with which we have less sympathy, she nevertheless clearly recognized the connection between Mill's testimony and On Liberty. She also noted that Mill couched his opposition to the CDAs “in terms that related to the central problem he posed in On Liberty”; namely, determining the legitimate limits for the state's intervention in the lives of its citizens.Footnote ⁸⁵

In our view, On Liberty was infused with Mill's feminism. Of central significance was that part of On Liberty was concerned with articulating his conception of what type of individual, what qualities of individual character, would be needed “to enter into the best kind of human relations” such that the corrupting influence of relations of domination and subordination might be eliminated.Footnote ⁸⁶ For Mill, such an individual could only be a “socially constituted subject,” part of an other-regarding community of individuals.Footnote ⁸⁷ Not for Mill the atomistic individualism typical of the utilitarianism promoted by Jeremy Bentham and his father, James Mill, a conception of individualism that he thought was not conducive to fostering other-regarding social behavior. Further, in 1874, just 1 year after Mill's death, both On Liberty and The Subjection were published together in one volume, with a second edition appearing in 1879.Footnote ⁸⁸ This would indicate that the publishers, if not some of Mill's supporters, understood the connection between these two works.

The problem of the legal basis of the relations between the sexes, the central problematic of The Subjection, was significant for Mill's overall political philosophy, but it was also significant for his testimony before the Royal Commission, given that it was published just 2 years before he appeared before the Royal Commission in 1871. Although there is no causal link between the two events, it would be surprising if The Subjection did not have some bearing on his thinking about practical policy issues such as the CDAs. It is far more likely that it would have helped frame his thinking about these matters in at least two ways. First, it enabled him to place the relationship between the CDAs as a legislative measure and the general treatment of women into a complementary frame of reference. Second, it provided him with the means to apply his key philosophical concepts to the practical policy issues of day-to-day politics. Failure to take into account Mill's feminism means that we miss the point about his political stand in 1871. More importantly, we miss the point about the nature of the gendered relationships likely to enjoin law, liberty, and the public good. However, if Mill's defense of women's rights in England animated his principled opposition to the CDAs, his views might be seen as implicated in their own form of particularity when it came to the treatment of colonized peoples under the control of English administrators.

Mill, the CDAs, and Colonial Inflections

As has already been noted, the use of CDAs as a means to control venereal disease was not restricted to use within England. Almost all of the colonial possessions within the British Empire pursued measures to address the problem of venereal disease within the armed forces. Some significant English colonial possessions enacted similar ordinances within their own jurisdictions: Hong Kong in 1857, India in 1868 (though an earlier version restricted to military garrisons known as the “Cantonment Act” operated from 1864), the Cape Colony in 1868, the Straits Settlements in 1870, and, at various times in the nineteenth century, in the colonies in what was later to become Australia. The measures in India, the Cape Colony, and the Straits Settlements took place as the anti-CDA campaigns were gaining momentum in England (and they remained in place long after the English CDAs had been repealed).Footnote ⁸⁹ As far as can be determined, Mill made no public comments about the operation of CDAs within the colonies, despite his background as a colonial administrator with the East India Company. It is, therefore, indeterminate whether Mill's feminist informed opposition also extended to the colonial versions of the CDAs. However, even though Mill was silent on the colonial operation of CDAs we still need to determine whether his understanding of liberty, the basis for his opposition in England, applied to all regardless of geographical or class location, or whether it was limited only to those who could be regarded as “civilized.”

Determining this is not simple because in On Liberty Mill stated explicitly that his conception of liberty, and by extension the “harm principle,” was “meant to apply to human beings in the maturity of their faculties” rather than to those “backward states of societies in which the race itself may still be in its nonage.”Footnote ⁹⁰ The mode of government and the means by which he thought that colonial rule might need to be exercised would not necessarily align with how it operated in the metropole because of the alleged lack of political maturity of the subject peoples. Hence Mill considered that “despotism [would be] a legitimate mode of government in dealing with barbarians, provided the end be their improvement, and the means justified by actually effecting that end.”Footnote ⁹¹ Restrictions on liberty within the colonies would not necessarily offend against the standards of liberty that would be expected within England. Given these views, it is not surprising that many scholars from diverse perspectives have come to view Mill's political philosophy as constituting a rationalization for, if not a strong defense of, English colonial rule,Footnote ⁹² especially given his employment by the East India Company. However, he was not necessarily an uncritical apologist for the British Empire.Footnote ⁹³

Mill's views do not neatly map onto a dichotomy of metropole and colony in the sense that he had one set of principles for the former and a different set for the latter. Space precludes developing this in detail but what can be noted here is that his idea of liberty was not as exclusivist as his comments about despotism and the maturity of faculties might at first suggest. In addition, his conception of “despotism” was also more complex than might be suggested by his apparent endorsement of it in On Liberty. Mill made it clear in numerous works, particularly in Considerations on Representative Government, that he was not an advocate of arbitrary political rule. Moreover, both within and between Considerations on Representative Government and On Liberty, Mill uses the term “despotism” in different senses, ranging from a benign developmental meaning (in which the consent of the governed is over-ridden in the best interests of the governed) to the more familiar senses of arbitrary, even tyrannical, rule. This is most explicit in Considerations where, echoing his position in On Liberty, he notes that the realities of political rule might require a governing body to pursue undemocratic or authoritarian measures in order “[to] carry[.] the people through a necessary stage of improvement, which representative government, if real, would most likely have prevented them from entering upon.”Footnote ⁹⁴ In both works, the sense of “despotism” that Mill is at pains to defend, as distinct from that which he condemns, is informed by a concomitant understanding of what he sees as being in the best interests of the governed.

Although it might be pushing the point to suggest, as Tunick has, that Mill's conception of “despotism imposes a regime of legal rights that enforces toleration,” it can be agreed with him that at least in principle, Mill's approach “does not deny subjects their rights, or support their enslavement or arbitrary punishment, or require their assimilation.”Footnote ⁹⁵ It is on this basis that Tunick describes Mill as a defender of “tolerant imperialism.” This is a beguiling notion, but ultimately it glosses Mill's actual position such that it denies the imperial sentiments that contributed to the complexity of Mill's thought. As we will note, Mill had a particular view of the role of a colonial power and its responsibilities for those it ruled. It would take us too far afield to critique the idea of “tolerant imperialism” on its own terms and Tunick's concomitant recalibration of Mill's political philosophy, but two things can be noted here. First, the idea of “tolerant imperialism” begs the question as to what conception of toleration informs it, as by definition, imperial rule is imposed against the will of those subjected to it. Second, Tunick does not consider that such “tolerance” as he attributes to Mill might be described more accurately as the “anxiety of an imperial administrator.” This anxiety arises from an ever-present tension within liberalism between its key principles and the organization and exercise of political rule, a tension clearly present within Mill's political philosophy. It is symptomatic of the “civilised distaste for the dirty work of empire” that Hindess has argued “is a significant component of liberal imperialism.”Footnote ⁹⁶ In noting this tension, we are not denying that Mill also advocated toleration. Rather, we want to point out that this tension between “liberty” and “despotism” recurs throughout Mill's political philosophy, and that it was perhaps at its most taut in the context of colonial rule.

A striking example of this within Mill's writings is his response to the Jamaica crisis of 1865 (and its governor's handling of it), but before we move on to that discussion, we also need to note here that whereas Mill's political philosophy and his treatment of colonial themes exhibited at times a Eurocentric bias,Footnote ⁹⁷ it could not be described as racist. There is plenty of evidence, despite the views of some scholars,Footnote ⁹⁸ that Mill eschewed racism.Footnote ⁹⁹ For example, in his essay “On the Negro Question,” he took issue with Thomas Carlyle's defense of slavery (and its explicit racism) by arguing that no matter the perceived differences in intelligence and station between whites and blacks, such differences do not provide any basis for the white race “to subdue them by force” or to enslave them for the benefit of white people.Footnote ¹⁰⁰ Mill consistently opposed what he called “the iniquitous dominion of the law of might” and any appeals to racial characteristics to justify it.Footnote ¹⁰¹

Mill's very public and vociferous opposition to actions taken in the West Indies by its Governor, Edward John Eyre, illustrate his abhorrence of what he regarded as despotic (and possibly racially inflected) political rule. On this occasion, the governor imposed martial law to quell a minor uprising. In the process, the authorities killed hundreds of black workers, as well as arresting and executing a mulatto member of the Colonial Assembly. For Mill, the problem was not just that excessive force had been used. Rather, as Margaret Kohn and Daniel O'Neill point out, it realized his fear that a “foreign governing class, especially one marked by racial difference” could not be trusted to bring about the improvement of its subject peoples.Footnote ¹⁰² That is, such colonial rulers would “rivet the degradation of the multitude and leave them no hope of decent treatment.”Footnote ¹⁰³ This would not be the benign despotism of On Liberty aimed at improving the character and lives of the governed. Rather, it would be the form of despotism that he had consistently opposed. But this was only part of Mill's political position.

For Mill, the view of empire and colonial rule that he imagined (and advocated) could not be sustained if the British government did not hold Governor Eyre and his subordinates accountable for their actions.Footnote ¹⁰⁴ That is, if the colonial authorities were not brought to account, then the form of despotism that Mill favored could not be seen to be reconciled with good government and progress for the colonized subjects. Rather, colonial rule was simply “the iniquitous dominion of the law of might.”Footnote ¹⁰⁵ Despite Mill's efforts, no colonial official suffered any penalty for that particular exercise of colonial authority. As Kohn and O'Neill have shown, those events and their aftermath probably brought home to Mill the realization that his aim of “reconcil[ing] his commitment to equality, liberty, and representative institutions with the practice of empire” was not possible.”Footnote ¹⁰⁶ These events were also a watershed insofar as they marked “an important ideological shift in the ways in which empire would be justified and colonised people would be governed.”Footnote ¹⁰⁷ As far as Mill's political opponents and detractors were concerned, the welfare of the colonized was secondary to the maintenance of order and stability, so that the point of the colonial venture, namely, the extraction of raw materials and creation of new markets for the colonial power, continued undisturbed.

The foregoing has given some background on how we might interpret Mill's conceptions of liberty and despotism in their colonial settings and hence on whether Mill's liberty-based defense of women's rights in England can be understood as applying to women in the colonial settings. We also need to add here that his views on social progress were also closely allied to his views about women's social and political rights. Like a number of influential nineteenth century thinkers, Mill promulgated the view that the “elevation or debasement [of women] was on the whole the surest test and most correct measure of the civilization of a people or an age,”Footnote ¹⁰⁸ a view also held by his father in his A History of British India, first published in 1817.Footnote ¹⁰⁹ This would indicate that Mill was at least concerned with improving the social and political standing of women in the colonies. Given his views on the emancipation of women in a given society, and what that might reveal about the state of progress of that society, Mill would accept that achieving full social and political liberty applied as much to women in the colonies as to women in the metropole, regardless of class or race.

Furthermore, as has been discussed, one of the conditions for legitimate despotism was that any coercion had to be for the benefit of those being coerced. Given that the CDAs were aimed at women, and only women, it is difficult to conclude that their implementation in the colonies meant that for colonial women “the end be their improvement.” However, as has already been demonstrated, the CDAs were not justified as being for the benefit of the women, even indirectly. Rather, the rationale for the CDAs was to check the spread of venereal disease and in so doing protect the clients of the prostitutes from becoming infected. Within Mill's framework, the coercive implementation of the CDAs could not be justified, even in the colonies, as their end was not the improvement of the colonial subjects’ capacities for progress. By the same token, if there is no justification for the coercion embedded in the CDAs, then there can be no justification for infringing the liberty of the women. The issue for Mill remains the same. The principle of liberty was being infringed, and its application was partial, because it only applied to women, the fact that they were prostitutes or not English notwithstanding. There might be other reasons that Mill the colonial administrator might have accepted the retention of the CDAs in the colonies, such as the health of the military to ensure the ongoing viability of colonial defenses. Nonetheless, it is reasonable to conclude that in principle, at least, Mill did not favor any measures in a colonial context that would “deny subjects their rights, or support their enslavement or arbitrary punishment.”Footnote ¹¹⁰ However, this is precisely what women faced under the CDAs operating in the colonies, and in this respect, Mill's argument from liberty would still be relevant.

On that basis, it might be concluded that if Mill had been asked about the operations of the CDAs in the colonies, he would have opposed them for the same reasons that he put to the royal commissioners. However, there are two reasons for suggesting that such a conclusion might overstate Mill's position. In the first place, it has to be acknowledged that such rights as might have been enacted and upheld in the colonies were subject to the constraints of the imperial dynamic, as were the colonized themselves regardless of gender.Footnote ¹¹¹ As the Jamaican example brought home to Mill, the good of the colonized did not enter into that particular exercise of colonial authority. Second, there is Mill's idea of “civilization” as a calibrating measure of a subject people's readiness or capacity to enjoy the benefits of individual liberty and hence self-government.Footnote ¹¹² For Mill, the colonial power was obligated to try to elevate the colonized to an appropriate level of civilization so that they could eventually be fit for self-government. That is, implicit in Mill's support for a benign form of despotism, benevolent despotism, in colonial contexts, is the idea that it eventually would or could become self-extinguishing as a matter of its own design. However, the idea of benevolent despotism would seem to be a contradiction in terms,Footnote ¹¹³ if not a case of wishful thinking on Mill's part. Again, the case of Jamaica clearly demonstrated that despotism remained the creature of tyranny no matter how it might be dressed up in less turbulent times. The hard reality of colonialism was that the colonizer's law and its conception of order prevailed. The rules applied in the colonies were neither universal nor were they aimed at transforming the colonial authority—even if they could be justified occasionally as benefiting the colonized.Footnote ¹¹⁴

Hence, insofar as Mill favored some form of despotism for ruling colonial subjects, it would, therefore, follow that his conception of liberty likewise remained limited to those within the English metropole. Although we have explored his position with some sympathy, once we consider how Mill's views might have applied to colonial contexts, the principles he put before the Royal Commission turn out to be more limited. From a feminist perspective in which gender issues take precedence, one would have thought that if the CDAs were measures aimed at protecting men while penalizing women, that their operation in any geographic location would have been inequitable. However, Mill's views turn out to be both geographically and culturally specific.