In its most general form, humanitarianism is an ethic of kindness, benevolence and sympathy extended universally and impartially to all human beings. Humanitarianism has been an evolving concept historically but universality is a common element in its evolution. No distinction is to be made in the face of human suffering or abuse on grounds of gender, tribal, caste, religious or national divisions.
The universality of Humanitarianism is exemplified in one of the first statements of the ethic, the New Testament parable of the Good Samaritan. The answer to the lawyer's question -- 'And who is my neighbour?', is that 'your neighbour' is anyone in need whom you can help.
Humanitarianism is an ethic of active compassion which became expressed in philanthropy and social welfare. From an exclusive concern with charity, humanitarian action was led increasingly to vindication of the respect owed to the individual human being. This idea, originating in stoic natural law, became, in its Christian and secular manifestations, an important influence in European thought. Not immediately, but eventually, denial of the spiritual equality inhering in every human being became the touchstone of 'wrongness' in humanitarian action.
The Enlightenment advanced the idea that humanity could be improved by reform of laws and change in social structure. This idea combined with the humanitarian ethic of active compassion. Both became the impelling influences upon humanitarian social action from the 18th century.
Humanism is associated with the Renaissance and the revival of classical learning which took place in the 15th century. This cultural and educational strand is not part of Humanitarianism but both Humanitarianism and Humanism share a common view as to the importance of 'Man'. Unlike Humanitarianism, humanism tends to exclude any religious basis for that importance. A major difference is that Humanism was not impelled to engage in action to protest abuses or move collectively for the relief of human suffering. Nevertheless, in so far as the Renaissance was a precursor to the Enlightenment, humanism and humanitarianism shared the value of autonomy, articulated in the Enlightenment, and both equally rejected superstition as a justification for socially approved cruelty.
Humanitarianism and Human Rights are closely associated.Both movements are grounded upon the moral significance of the individual human being. However, compassion and the alleviation of suffering are not necessary in order to give effect to a human right; and thus that original and basic element in humanitarianism forms no part of 'Human Rights'. The question though, in relation to humanitarian reform, is whether the denial of a human right and the abuses which humanitarians seek to reform, are generically the same or differ and, if so, in what way.
Humanitarianism did not campaign against abuses on the ground of human rights but in the name of humanity. The wrongs which the Humanitarian movement addressed related to violation of moral duties imposed upon State or Society in relation to the treatment of human beings. These duties are substantially unqualified and do not depend upon the consent or absence of consent of persons affected. Thus, under international law slavery and the slave trade are absolutely prohibited. There is no emergency or other exception. Torture is similarly absolute. A 'right', in the strict sense, requires a 'right-holder'. It is the negation of a right if the person advantaged has no option whether to make or decline to make a moral claim. The duty consequent upon a right may not arise until the right has been exercised. The moral claims of slaves and of forced labourers exist independently of their objection. Slavery, torture, cruel punishments cannot be absolved by consent.
In the 18th and 19th centuries the ethic of active compassion coalesced with other ideas and the interaction resulting from this turned humanitarianism in the direction of reform These accompanying ideas were: rationalism, individualism and of the concept of social and legal reform.
The Enlightenment idea of reform combined with the ethic of active compassion to inspire the social action of the humanitarian movement. Professor G. M. Trevelyan in his Social History of England has explained the humanitarian movement as a product of the influence of rationalism upon puritanism.“The rationalist movement had shaken the persecutor’s sword from the hand of faith and religion had been to school with her rival reason. From Milton to Wilberforce the road lay through Voltaire.”
The reformers diverged widely in their underlying beliefs but were united in their humanitarianism. Thus the Christian individualism of the Quakers, that each person shares the ‘inner light’ and the Arminianism of the Evangelicals were both differently based from the Lockean or Kantian individualism of a Philosophe or a Utilitarian, but all recognized the equal moral significance of the human person and that the disregard of it was wrong. What also united them was the new idea of reform to remove those wrongs. And so in many of the major areas of humanitarian reform, Christians and rationalists worked together: in the case of slavery; Wilberforce, the Buxtons but also Bentham and Condorcet; in the case of working conditions; evangelicals such as Lord Shaftesbury but also Robert Owen and Edwin Chadwick; in the case of punishments Beccaria but also Samuel Romilly; in the case of the mentally ill; Shaftesbury and Pinel and in the case of the treatment of animals, Bentham enlisted the aid of Wilberforce.
The idea that mankind could be improved by deliberate social change as distinct from the conferring of charity and the doing of ‘good works’ was relatively new. For all intents and purposes social and legal reform was a product of the Enlightenment. Its origins lay in the belief in the dominance of reason and that ‘Man’ was perfectible, if only the social conditions in which he or she lived would allow it. Most Enlightenment thinkers believed ‘man’ to be fundamentally good: “he was once free but is now everywhere in chains”. Voltaire in his Portable Dictionary said that “it is want that subjects one man to another.” Mankind would be perfected by knowledge – hence the great Encyclopaedia of Diderot and D’Alembert. Helvetius (1715–1771) made this philosophy very popular. He believed human character to be a product of social environment. The chief instruments enabling this to be done would be education and legislation. There thus grew up the demand for legal reform. If ‘laws are good, morals are good’ said Diderot.
Reform distinguished the humanitarian movement from charity and philanthropy. Speaking of the charitable and philanthropic institutions of the 19th century industrial era, Ernst Troeltsch said, “their aim was a new spirit, not a new society.” Christian philanthropy tended to deprecate reform as political. For the humanitarian movement, however, removal of the abuse causing suffering was the essence.The goal in almost every field of action undertaken by the humanitarian movement required changed social conditions and in many instances this could only be brought about through legislation.
The question arises as to the basis for the humanitarian movement's claim of ‘wrongness’ in the social conditions which it sought to eradicate or reform? The criterion of wrongness was not cruelty. It is true cruelty was often a manifestation of the social abuse or ‘wrongness’. Public reaction to cruelty was often vital to the mobilisation of social action. But it was not the criterion. If, in the case of slavery, it had been otherwise, the movement would have been satisfied with improved treatment of the slaves. Historically, both in ancient Rome and in the southern states of America, many masters and their families were kind to their slaves and in late Rome and southern America, laws were in force prohibiting maltreatment of slaves. But this was never the aim of the humanitarian movement. It sought the abolition of slavery and not its amelioration. The institution was wrong. It was wrong even if no slave were suffering cruelty in the ordinary sense of the term. It was wrong because by virtue of the institution of slavery the master was able to subjugate the freedom and autonomy of another human being.
The principle of European individualism upon which the humanitarian movement was based was that every human being was of equal moral significance and it was the disregard of that moral significance which constituted the abuses against which the movement was directed. European individualism can be traced to the Greeks. It was the stoics, who like Aristotle, attributed significance to the human soul; but who, unlike Aristotle, considered every human being equal in that significance. Natural law, as the stoics conceived it, was based upon this principle of spiritual equality. Positive law was subject to the law of nature and, hence, uniquely to the ancient world, the stoics opposed slavery.
Medieval Christianity both conserved and transformed the ideal, largely limiting equality to the capacity of each believer to attain posthumous salvation. In 18th century Enlightenment Europe, the individualistic idea of the equal moral significance of the individual in ‘this-world’, re-emerged grounded upon reason and personal autonomy, not upon the equal capacity to escape damnation in the next world.
It was the disregard of moral significance in this sense which constituted the ‘wrongs’ identified by the humanitarian movement and justified social action in the case of slavery, the maltreatment of the working class in the 19th century; the brutality of criminal punishments and the use of torture in the criminal justice system; the treatment of the insane; the subjection of women to an inferior status and the inhumanities of colonialism.
Prevention of cruelty to animals involved an extension of the principle to non-human animals. The stoics had grounded moral significance on capacity to reason. St. Paul and St Augustine reflected this view and it became part of the Catholic tradition. Pope Leo XIII enunciated this in Rerum Novarum.”But animal nature, however perfect, is far from representing the human being in its completeness, and it is in truth humanity’s humble hand maid, to serve and obey”. The humanitarian movement attributed moral significance to non-human animals and sought the introduction of laws to protect them.
The Christian ethic of active compassion combined with rationalism, individualism and reformism. Although ‘wrongness’ was the ultimate criterion of social action for the humanitarian movement and ‘reform’ the method by which it was achieved, this would not have taken place without the energy generated by the ethic of active compassion. Reform was usually led by a small number of humanitarians but with the advent of democracy would not have gone further without community acceptance. The observance of suffering by the community does not necessarily give rise to compassion. It may do so - but society seems able to accept the infliction of pain on other human beings where it has the support and apparent justification of current social values. Thus for centuries the suffering of witches and heretics being burnt at the stake failed to arouse a compassionate response: nor did brutal punishments such as boiling to death and whipping. Great crowds gathered to witness public executions. Until the nineteenth century visitors would go to Bedlam as if to a zoo. Bear baiting and cock-fighting were enjoyable pastimes.
A change in values from what had been the socially acceptable infliction of suffering may allow compassion to be released. The medical explanation of insanity advanced by Phillipe Pinel and others enabled the insane to be looked at through a quite different lens and reveal them to be sick human beings. Thereafter, lunatics were no longer chained, flogged or half-drowned in wells. And once crime had ceased to be viewed theologically as sin, the necessary infliction of pain involved in criminal punishments no longer provided an excuse for sadism. Harriet Beecher Stowe’s moving description of the treatment of slaves in ‘Uncle Tom's Cabin’, published in 1852, led her wide international readership to recognize—in some instances for the first time, the cruelty and oppression of slavery. In this and similar instances the resulting public reaction of outrage to cruelty and compassion for those who suffered was the final but necessary catalyst to reform.
In the 18th century conflicting religious belief became tolerated to a degree unthinkable one hundred years before. Witchcraft disappeared. Torture was abolished. During the nineteenth century slavery was abolished; women began the agitation that would ultimately lead to universal suffrage; criminal punishments became more enlightened; laws were passed to prevent cruelty to children; treatment of the insane was humanised and working conditions were made almost tolerable. Pressure on Parliament by humanitarians led to regulation of working hours and amelioration of working conditions. The Factory Act of 1833 and the Factory Act of 1844 was some of the most significant humanitarian legislation passed. In the middle of the 19th century, humanitarianism was central to the work of Florence Nightingale in the alleviation of suffering in the Crimea. An international dimension was added to humanitarian reform with the founding of the International Red Cross. Finally, cruelty to animals became punishable.
Religious toleration came from above. It did not follow popular agitation. Indeed, popular feeling tended if anything in the reverse direction as it did, more clearly, in the case of the abolition of witchcraft. By contrast, the social action in the nineteenth century was in all cases greatly influenced by popular feeling and, in some instances, popular agitation. The initiating force remained with small groups of reformers. These groups set about energising public opinion. This often became the immediate cause of legislative action. One reason for the change was the advent of democracy - limited though it was until well into the nineteenth century. Also, communications had become easier. The industrial proletariat crowding into the new cities made it feasible to hold the mass meetings such as those we associate with Wesley. The population was increasingly literate. Political pamphlets had first circulated in England during the civil war. By the end of the eighteenth century the number of newspapers had made it financially worthwhile to impose a tax upon them. In one form or another the written word was part of social action. In fiction, novels like Uncle Tom’s Cabin and those of Charles Dickens drew attention to social wrongs and inspired reformist action. This change of audience led to a change in the mode of approach which became less philosophical and more obviously emotive, fastening on the cruelty which frequently accompanied the inhumanity to which social action was directed.
In 1503, following the voyage of Columbus, the Spanish Governor in the Indies, Orvando, commenced using Indians in the mines. Las Casas, the Bishop who accompanied him, observed the fearful toll the work took on the Indians. Las Casas suggested they be replaced by Negroes. Thus the fateful beginning of the transatlantic slave trade from Africa. Some 900,000 slaves were landed in the Americas by 1600. From the 17th century demand for African labour expanded greatly with the increased importation of sugar into Europe. It was in that century that slavery became recognized as a lawful status in Massachusetts in 1641; in Connecticut in 1650 and in Virginia in 1661. The 18th century saw England’s rise to dominance in the trade. By 1770 British traders were exporting 40,000 to 60,000 slaves annually. At that time the trade was chiefly carried on from Liverpool and by the end of the 18th century more than half the trade was British.
Once a ship was loaded with its slave cargo it embarked upon the ‘middle passage’ to Brazil or the Caribbean. Ships averaged 150 tonnes. Each ship carried 600 slaves who were chained to shelves below deck during the voyage. “Packed in the holds of the galleys …the slaves were given no more than four to five feet in length and two or three feet in height so that neither could lie down full length nor sit upright.They were chained, right hand to left leg, and attached in rows to long iron bars.” The death rate varied from 19-20%. On arrival the slaves were auctioned. Then followed the ‘seasoning’ which usually lasted 12 months or so. About a third died in the seasoning.
There was a very high death toll. In Jamaica, there were 40,000 slaves in 1690. From then until 1810, 800,000 slaves were imported and yet only 340,000 remained on the island 1958. It is estimated that between 1680 and 1786 the total number of slaves exported into all the British colonies in America was 2,130,000. When the nature of the trade became known it was denounced by a wide range of people. John Wesley published his Thoughts on Slavery in 1774.
The Quakers were among the first to take action largely through the influence of John Woolman and Anthony Benezet. In 1754 John Woolman prepared a Letter which was distributed by the Philadelphia Yearly Meeting expressing concern at Quaker involvement in slavery. In 1758, influenced by Woolman, the Philadelphia Yearly meeting altered its traditional policy so that henceforth all members who bought or sold Negroes were to be excluded from business meetings or from making contributions to the Society. In 1760 the New England Quakers made importation of slaves an offence subject to discipline.
The process of abolition in Great Britain and the Empire went through a number of stages: the elimination of slavery internally; that is its prohibition and non-recognition within Great Britain; the abolition of the slave trade from British ports and by British traders; the prohibition of slavery within the British dominions.
In England slavery was declared unlawful in 1772 by the Lord Chief Justice, Lord Mansfield, on a writ of habeas corpus which came before him brought by a slave, Somersett. Somersett was being held in irons in the holds of a ship lying in the Thames and the anti-slavery campaigner Granville Sharp instituted proceedings on his behalf. The effect of the decision was that no person could thereafter be a slave on English soil and any slave brought to England would immediately be set free.
The slave trade continued unabated. In 1783 public opposition to it was aroused by the case of the slave ship Zong. The ship with 442 slaves had lost its way. With water short the master Colingwood explained to his crew that if the slaves died naturally from thirst the loss would lie on the shipowner but if, on some pretext, such as ‘safety of the crew’ they had to be thrown into the sea to drown, the loss would fall on the underwriters: and so 133 slaves were thrown into the sea.
In 1787 William Wilberforce, Thomas Clarkson and a group of friends, mostly of Anglican evangelicals, formed an association to carry forward a campaign for abolition in Parliament and throughout the country. On 12 May 1787 Wilberforce brought forward the first of many motions in the House of Commons. It was defeated but he had a powerful ally in his friend, the Prime Minister, William Pitt. In 1791 his second motion sought to ban the further importation of slaves into the British colonies in the West Indies. It was defeated by 163 votes to 88. In 1792, after a magnificent speech by Pitt, the House of Commons accepted a resolution that the trade should be abolished in stages but this was defeated in the House of Lords. In 1795 Wilberforce would have secured the passage of a private Bill prohibiting the supply of foreign slaves by English merchants, had not twelve of his supporters gone to the opera. In 1804 Wilberforce’s Abolition Bill passed in the Commons again but was thrown out in the Lords. Finally, in 1807, a Bill passed both Houses putting an end to British traders engaging in the foreign supply of slaves and prohibiting the importation of slaves into colonies won by Britain during the Napoleonic wars. The departure of any vessel to obtain slaves from any port within the British dominions after 1 May 1807 was prohibited and no slave could be landed in British colonies after 1 May 1808.
The Act of 1807 was disregarded as the purely pecuniary penalties were insufficient. It was not until Brougham carried a Bill through the Parliament subjecting offenders to transportation that the slave trade to the British Dominions was finally extinguished.
Although, therefore by about 1820 the trading in slaves had been widely prohibited, slavery itself had not been prohibited in the British colonies or in the British dominions. Wilberforce took up this cause but he was ageing and so in 1821 he appealed to Thomas Buxton to press in Parliament for abolition of slavery within the colonies and dominions. An anti-slavery body was formed including, in addition to Wilberforce and Buxton, Macaulay and Brougham. Because of hostility to the measure in the colonies its passage through parliament proved difficult. Finally, Earl Grey took the decisive step and introduced the Bill. Wilberforce, although dying before its enactment, knew on his deathbed that his long battle had been won. “Thank God I should have lived to witness this day”,he said. Twenty million pounds was paid as compensation to the planters.
The effective prohibition on British ships gave foreign slave traders an advantage which they speedily took up despite intervention to stop them carried out by British cruisers. It became imperative to include other countries in the ban:
The example of Great Britain was then followed by the following countries in abolishing slavery within their dominions : in 1848 the slaves in all France’s colonies were immediately emancipated; in 1853 the Dutch commenced emancipation of slaves within their possessions; in 1858 it was enacted that every slave belonging to a Portuguese subject should be freed within 20 years and, from 29 April 1878, slavery became illegal throughout Portuguese possessions; the government of Buenos Aires enacted that all children of slaves after the 31 January 1813 should be free; in Columbia those born after 16 July 1821 were to be liberated upon attaining 18 and Mexico ended slavery on 15 September 1829.
The population of the slave states in America on the eve of the civil war in 1860 was 8,098,000 of whom 4,204,000 were negro. There were 385,000 slave-holders:of these the 46,000 who owned more than 20 slaves were ‘planters’. By the 1830’s the North, which had itself renounced slavery, was increasingly influenced by the abolitionist movement in England. The opposition to slavery widened. Perhaps, as Abraham Lincoln said in his Presidential campaign,the Union had to become one or the other. It could not remain slave and non-slave. In 1852 Harriet Beecher Stowe published Uncle Tom’s Cabin. It had a powerful effect on both sides of the Atlantic. It described the cruelties of the system and the horrors of remote plantations. By the end of 1852 hundreds of thousands of copies of the book had been sold in the United States.
Event followed event. The Kansas-Nebraska Act saw an attempt in Congress to move the ‘slavery -- anti-slavery line’ north of that which had been agreed. Then followed the Dred Scott decision in the Supreme Court in March 1857. The Supreme Court held that Congress lacked the constitutional power to interfere with the property of United States citizens. Slaves were property. The decision provoked a storm in the north.
Lincoln was elected President on 6 November 1860. On the 20th December, the state of South Carolina declared its secession from the Union. Next day Mississippi, Florida, Alabama, Georgia, Louisiana and Texas followed suit. In February 1861 these states, other than Texas, formed the Confederacy. Jefferson Davis was chosen President. On 14 April President Davis demanded the surrender of the Union force at Fort Sumter. When the demand was rejected the Fort was bombarded. The civil war had begun.
President Lincoln’s proclamation emancipating the slaves* took effect on the 1st January 1863. With the defeat of the South, slavery was in effect finished in the United States. In order to implement abolition entirely a constitutional amendment was required. The thirteenth Amendment came into force after Lincoln’s assassination, prohibiting slavery throughout the Union.
1760 may be taken as the approximate date for the beginning of the industrial revolution. England was the leading country. In the following decade James Hargreaves invented the spinning jenny and James Watt, the steam engine. Richard Arkwright’s water frame spinning machine enabled the weaving of whole cotton goods for the first time. Mechanization thus began in the cotton trade. Mills became located beside the water from the Pennine streams and extended to the plains below. Next came the application of coal in iron smelting.
The break with the past was complete. The enclosures had forced cottagers and farmers off their land. Handicraft industry had gone. In its place were the ‘dark, satanic mills’ of William Blake’s imagery. People lived and died in sight of the cotton mill in which they spent from 14–16 hours of their daily lives. It was inevitable that eventually the new factories would concentrate an increasing population in the cities. Thus in the case of Manchester the population increased tenfold between 1760 and 1830, from 17,000 to 180,000.
In the factories children went to work soon after their sixth birthday. Orphans and pauper children would be collected from the Parish Work Houses in London and Birmingham and sent to the industrial centres of Nottinghamshire and Lancashire where they worked extremely long hours. “One relay of children rose wearily from their beds as another relay came to throw themselves down in their places. They were fed on the coarsest and cheapest food..” In the chimneys, masters found it cheaper to drive the chimney boys up the chimney than use long brushes. Not only were women were worked in the mines but they were forced to do heavy work for extremely long hours. In the factories, as late as December 1841, Leonard Horner, an Inspector of Factories reported that industrial workers working a 14 hour day.
Eventually, justice and equality between capital and labour was achieved by Trade Unions, parliamentary reform and, in some countries, revolution or the fear of it. But for a time the humanitarian movement was the only barrier to the inhumanity suffered by the labouring classes. Broadly this was the state of England from 1802 when the Combination Act was passed until the Ten Hour Bill was enacted in 1848. During this period it was the humanitarian movement which fought for laws to establish humane working conditions in factories and in the mines, reasonable hours of work and restrictions on the employment of women and children.
The movement was led by Anthony Ashley-Cooper, 7th Earl of Shaftesbury (1801–1885) who was strongly supported by Tory radicals. Others were Michael Sadler (1780–1835), a Wesleyan Methodist, who had a business importing Irish linen; Richard Oastler (1789–1861), a land agent from a Wesleyan background; Edwin Chadwick (1800–1890) who had been Bentham’s secretary and Robert Owen (1771-1758). Owen was not an evangelical nor a utilitarian. Indeed he emphatically rejected Christianity. He was a Manchester cotton spinner who had made a fortune whilst young. Distressed by the conditions of workers at the Mills he set about giving them fairer conditions first at Manchester and afterwards at New Lanark, in Scotland, where he operated a large cotton mill from 1820 to 1829. Owen had thoroughly absorbed the Enlightenment idea of the perfectibility of man through improved social conditions.He wrote about it and practised it in his own business life.
In 1815 Owen, apparently single-handedly, started an agitation for factory reform. He drafted a Bill to apply to all textile factories. It would have prohibited the employment of all children under 10 and prohibited night work for children under 18. He also wanted the working day for children restricted to 10 1/2 hours per day. The Bill was fiercely opposed and rejected. Speaking in the House of Lords, James Maitland, 8th Earl of Lauderdale said, “such things as this ought to be left entirely to the moral feelings of perhaps the most moral people on the face of the earth.”
Ultimately the Factory Act 1819, which was not Owen’s Bill, was passed. It provided that “no child shall be employed for the spinning of cotton into yarn … until he shall have attained the full age of 9 years” and “no person under 18 shall be employed in the spinning of cotton wool into yarn for more than 12 hours, exclusive of the necessary time taken for meals”. Owen was disillusioned but even this inadequate measure would not have become law but for him.
The next major effort took place when about a decade later Michael Sadler prepared new legislation to restrict hours of work but before it could go before Parliament he was disenfranchised as a result of changes brought about by the 1832 Reform Act. It was then that Lord Shaftsbury was approached to lead the movement. He accepted. He put forward a Ten Hour Bill, the first in the long struggle to achieve that basic benchmark. The opposition proved overwhelming. But Lord Althorp an opponent of the measure introduced an amending Bill designed in some way to accommodate Shaftesbury’s position. The Factory Act 1833 provided that no person under 18 should be employed for more than 12 hours in any day or for more than 69 hours in a week. Manufacturers bitterly opposed this modified measure and, to circumvent it, introduced the relay system so that one set of children worked from 5.30 to 1.30 and the next from 1.30 to 8.30.
In 1842 a Royal Commission reported on conditions in the mines which profoundly affected public opinion. The Coal Mines Regulation Act 1842 which Shaftsbury pursued in Parliament prohibited the employment of girls and women in mines altogether.
The crisis in Factory legislation came to a head with a renewed attempt at a Ten Hour Bill, the basic aspiration of the workers. Factory and Mill owners opposed the measure. The whole issue became entangled with the repeal of the Corn Laws. The Bill was fought at every stage. A magnificent speech by Macaulay heaping scorn on the ‘freedom of contract’ arguments of Bright, Cobden and Pease was of immense importance in the debate but all the humanitarians – Shaftesbury, Oastler, Fielden and others were instrumental in securing passage of the Bill. It became law on the 1st May 1848. Employers set about circumventing it and for a time were successful. It was not until July 1850 that the Ten Hour working day became a reality.
The importance of the humanitarian movement in the fight for humane working conditions in industrial England did not cease with the Ten Hour Bill. Shaftesbury secured protection for chimney sweepers in the Chimney Sweepers Act 1877. But humanitarianism became more directed to philanthropy than legislative reform.
In England the claims of the worker were pursued by the Trade Unions and the Labour Party in Parliament. On the Continent industrialisation began later. By 1848 the Communist Manifesto had been published with a fully developed theory of revolutionary socialism. The rise of the working class on the continent began not with humanitarianism but with the Revolution or uprisings of 1848. In France the regulation of hours of work began in that year, in Belgium and Holland about the same time, in Germany somewhat later and still later in Italy and Austria.
Medieval punishments were cruel and, in many respects, that remained the position in the 18th century: hanging, drawing and quartering, beheading, boiling and lesser punishments designed only to humiliate such as the pillory and placing an offender in the stocks.
Reform was, in the first instance, a product of the Enlightenment. The reformer who led in this was the Italian, Cesare Beccaria. Arthur Koestler has written of Beccaria that “there was perhaps no single humanist since Erasmus of Rotterdam who, without being attached to a definite political or religious movement, had such a deep effect on European thought.” He published his great work Dei Delitte e delle pene in 1764. Within a year his fame was worldwide.
Dei Delitte e delle pene was the first serious work devoted exclusively to the question of criminal justice. Beccaria emphasised the importance of certainty and of promptness in punishment if it were to be effective as a deterrent and proportionality if it was to be just. – that is, a due proportion between the seriousness of the crime and the punishment imposed. He opposed the doctrine of maximum severity. That doctrine had been greatly favoured especially in England upon the view that the sole object of criminal punishment was prevention. Whether the penalty was proportionate to the offence was of no great consequence. In Beccaria’s view maximum severity only hardened criminals and bred impunity.
Becarria corresponded with monarchs. Voltaire wrote a commentary to the first French edition of his work and was influential in disseminating his ideas. During his lifetime his proposals were embodied in the laws of Russia, Sweden, Austria, Tuscany and Greece. Becarria greatly influenced Frederick the Great and as a result of Frederick’s personal zeal the Prussian Criminal Code was revised and rationalised. The death penalty in Prussia was greatly reduced. On the 22 August 1772 Gustavus III of Sweden abolished torture and thereafter comprehensively revised the criminal code, the revision coming into effect on 20 January 1779. Maria Theresa of Austria did not accept Becarria’s ideas but her sons Joseph and Leopold, did. Joseph II who succeeded his mother thoroughly revised the Austrian Code. The revised code came into force on the 13th January 1787 and was the first to abolish capital punishment for every offence other than treason or murder. Leopold, Grand Duke of Tuscany passed an edict putting Becarria’s ideas into effect. In 1791 the French reflected his influence in a new penal code.
To these general developments there was one exception. England. As Koestler has written, “through more than a century England ran against the current”. In 1688 there were about 50 capital offences in England. Between 1660 and 1819 these increased greatly and 187 capital offences were enacted. Death was the only punishment for these offences although many differed greatly in seriousness. To avoid uncertainty the Courts were allowed no discretion for extenuating circumstances. This extremity even extended to children. As late as 1831 a boy aged 9 was publicly hanged at Chelmsford for having set fire to a house. During the 18th century, transportation was the only alternative to death for most offences.
There are three explanations for this severity. England was the first country to experience industrialisation, rapid population growth and urban congestion. During the 19th century London’s population had increased by 1 million to 6.7 million. Crime festered. It was estimated that towards the end of the previous century there were 8000 receivers of stolen property in the city. Second, England had no organized police force and resolutely refused to have one, until finally in 1829 Peel succeeded in its establishment. Thirdly, the English criminal justice procedures, including the jury system, in the 18th century, were favourable to the accused.
Against the background of an absence of organized law enforcement and liberal criminal procedures, penalties were savagely increased. This and the inflexible imposition of the death penalty had its philosophic support in the doctrine of maximum severity espoused by a number of English writers of whom the best known was William Paley. In 1785, the Reverend Martin Madan published Thoughts on Executive Justice urging the doctrine of maximum severity. Samuel Romilly (1757–1818) who had been greatly influenced by Becarria published a reply in which he strongly criticised the doctrine.
But at the end of the century the ‘bloody code’ was still intact. The struggle for its repeal took place between 1808 and 1837. In 1808, when Romilly was contemplating his great campaign the number of capital statutes stood at 220. He proceeded cautiously. In February 1810 he introduced separate Bills to repeal three Acts, all of which imposed the death penalty: the first was for stealing privately in a shop for 5 shillings; the second for stealing in a dwelling house to the value of 40 shillings and the third for the same amount on navigable rivers.
Speaking on this measure in the House of Lords, Edward Law, 1st Baron Ellenborough said “I trust your Lordships will pause before you assent to an experiment pregnant with danger to the security of property …” Despite a brilliant speech by Romilly, all Bills were defeated. But his Bill to repeal capital punishment for theft in a dwelling was defeated by only two votes.
In 1811 Romilly re-introduced the three Bills which had failed and introduced two others, one of which sought the repeal of the death penalty for stealing 10 shillings from bleaching grounds. This Bill proved to be important because it was supported by 150 bleaching ground proprietors who claimed that juries were refusing to convict where the death penalty would be imposed.
Romilly’s Bill for repeal of the death penalty for stealing in a shop to the value of five shillings was passed by the Commons, but defeated in the Lords on six occasions: 1811,1813,1816, 1818 and 1820. Romilly did not live to see the Bill passed. In the course of his life he succeeded in getting only three capital statutes repealed. He suicided, a defeated man a few days after his wife’s death in 1818. But soon after, resistance began to crumble. Petitions from enterprises concerned with the number of acquittals, such as those from the bleaching ground proprietors, forced a Committee to be set up in 1819.
Its recommendations were moderate but still the Lords held out. Bentham added his great influence to reform. In the end it was not until 1837 that the death penalty was substantially reduced but by 1861,it was imposed in the case of only four offences – treason, murder, piracy and arson in the dock yards. Other changes reflected the humanitarian influence:- In 1814 the sentence of hanging, drawing and quartering for treason was modified to remove the cutting down and disembowelling. Only in 1870 was quartering formally abolished; in 1815 the pillory was abolished for some offences and, finally, altogether in 1837; in 1820 the whipping of females was abolished;in 1822 the practice of dissecting the bodies of murderers was done away with; in 1857 transportation was abolished;in 1872 the last offender was placed in the stocks. But one medieval inhumanity lingered after the death penalty was reduced. This was the public execution, at which up to 100,000 might attend. Public executions were not finally abolished until 1868.
In the 18th century, prisons were, in the words of Henry Fielding, ‘sewers of idleness’. Prisons were farmed out to private persons whose object was simply to make a profit. “Women were thrown in the same common ward as men; first offenders with hardened recidivists; inoffensive civil debtors with muggers... ten year old boys with homosexual rapists”.
The leading reformer was John Howard (prison reformer) whose great work, The State of Prisons in England and Wales with preliminary observations and an account of some foreign prisons was published in 1777. Howard was High Sheriff of Bedfordshire and was shocked by the horrors of prison life and the callousness of gaolers. Not only were gaols indescribably dirty but were so overcrowded that great numbers of prisoners died each year from gaol fever.
In his work, Howard argued that prisons should be sanitary and secure. The keeper should be the paid servant of Justices. There should be separate cells for sleeping, in order to break down the corruption that came from the random aggregation of prisoners. Prisoners should have useful work to do in proper workshops.
Romilly, then a young man, was greatly influenced by Howard. Writing to a friend John Roget in 1781 he said of Howard, “ the author .. made a visit to every prison and house of correction in England with invincible perseverance and courage; for some of the prisons were so infected by diseases and putrid air that he was obliged to hold a cloth steeped in vinegar to his nostrils .. and to change his clothes the moment he returned. After having devoted so much time to his painful employment here, he set out on a tour through a great part of Holland, Germany and Switzerland to visit their prisons…”.
From the 1770s to 1791 statutes were enacted designed to give effect to Howard’s views and proposals but the Justices responsible for their implementation failed to do so. It was not until Peel’s Gaol Act of 1823 that a foundation was laid for a humane prison system.
After Howard’s death in 1790 the leading reformer was Elizabeth Fry (1780–1845) who began visiting Newgate, which was particularly infamous for its treatment of women prisoners. She arranged for food and clothing and with material she provided taught them how to make clothes.
Prison reform has had many vicissitudes. Some of the early theories of reform with their emphasis on solitary confinement in reaction to the 18th century congregating of prisoners, were erroneous. Nevertheless, the great divide in prison reform is, without question, the humanitarian reforms of the late eighteenth and nineteenth centuries.
Torture which had been permitted by law and implemented throughout continental Europe, was abolished in every European country throughout the 18th century. This achievement was the work of the Enlightenment: Beccaria and Voltaire being the leaders.
By the 12th and 13th centuries primitive modes of trial were breaking down. Proof of guilt had been established by magical means such as the Ordeal. At the Fourth Council of the Lateran in 1215 Pope Innocent III prohibited trial by ordeal and forbade ecclesiastics from taking part in it. New criminal procedures for determining guilt were needed. This was the precipitating cause for the use of torture on the continent. Innocent III had approved inquisitorial process in ecclesiastical courts and this now became extended to the civil jurisdiction. The essence of the inquisitorial procedure is that the trial is an inquiry to find the truth which is to be carried out by a process of interrogation. Torture was applied as a supplement to the new inquisitorial procedure. It came to be the prime method of extorting evidence. It was hardest in Germany and Italy but was also very much a feature of French law.
When Becarria wrote in the 18th century on torture, rationalism combined with humanitarianism to lead in the same direction as it had regarding criminal punishments. Becarria said of torture that “it to confound all relations to expect that a man should be both accuser and accused and that pain should be the test of truth, as though truth resided in the muscles and fibres of a wretch under torture.”
It was, however, the deep sense of outrage throughout France which followed the case of Jean Calas that led to the abolition of torture in that country. Jean Calas had been tortured and cruelly executed – all four of his limbs being broken in two places. He was then strangled and burnt at the stake. He was accused of murdering his son, supposedly in a rage over his son’s plan to convert to Catholicism. To the end he proclaimed his innocence: in fact his son had suicided. Voltaire was approached. At first Voltaire regarded the case simply as confirmation of his contempt for all Christians. If Calas were innocent, his death was an indictment of his Catholic executioners. If he were guilty it demonstrated the fanaticism of the Protestants. But soon Voltaire saw the case as much more than religious propaganda. He wanted to find the truth. Before long he had become convinced that Jean Calas had been the victim of judicial murder and he set about to rehabilitate his memory. He engaged lawyers to search out new evidence and press the authorities. He solicited funds to help the destitute Calas family. He wrote moving accounts of the case and mounted a campaign against the French legal system. Finally, three years after the execution, Jean Calas was cleared of the crime.
By the late 18th century no sovereign could appear enlightened if torture were permitted within his or her dominions. In France torture was abolished by an Ordanance of 9 October 1789. Catherine II, acknowledging the influence of Voltaire and Becarria, included in the Instructions for the preparation of a Criminal Code (1776), a declaration that all punishments by which the body is maimed ought to be abolished. In Tuscany torture was abolished by the Grand Duke, Peter Leopold in 1786 largely as a result of Becarria’s lucid indictment of torture and the death penalty. This was followed in other Italian states. Frederick the Great effectively abolished torture in Prussia in 1740 although this was not formalised until 1805. Other German states followed Prussia. A petition against torture was presented to the Austrian emperor by Joseph von Sonnenfels (1773–1817). Torture was abolished. The Austrian Netherlands (1797) and the United Provinces (1798) followed suit. Sweden had previously abolished torture in 1734. One by one other countries followed. It was a great triumph for the humanitarian movement.
England followed a different course and the abolition of torture is to be attributed to different causes. When Innocent III effectively abolished Ordeal in 1215 England was not faced with the same predicament as continental Europe to find a new criminal procedure and a new mode of proof. Earlier, King Henry II (1154–1189) had adopted the jury as a means of resolving land disputes and then more generally. When Ordeal was abolished, English Judges who went on circuit, cast about for a new mode of trial and naturally turned to the already established process of trial by jury.
But there was a difference in this procedure much more fundamental than in the kind of bodies determining guilt. The inquisitorial method on the continent was a judicial inquiry to find the truth. The English system was always accusatorial, that is, the Crown presented a case to the jury against the accused. It lay upon the Crown to prove that case. The Court’s function was not to find the truth but whether the Crown had sustained the allegations it had made.
In such a procedure there is no place for torture or other process to compel a confession. This was the principal reason that the common law rejected torture quite early. A further factor was that heresy was less common in England and although torture was by no means confined to heresy, it was typical of such an inquiry.
But it was only the common law that gave effect to this prohibition and it was only in the common law courts, where the accusatorial mode prevailed, that it applied. The Crown could under its prerogative create Prerogative Courts in which the process was inquisitorial. These courts survived until the English revolution of the 17th century. Torture was used in these courts.
In the 17th century there was a reaction against inquisitorial procedures. In the first instance this reaction was upon constitutional grounds in which the common law asserted paramountcy over the prerogative, but there was too a revulsion against the use of torture. This came to a head in what was almost the last case of torture in England, the case of John Felton in 1628. Felton had murdered the Duke of Buckingham and on arrest freely admitted the crime. Before trial he was brought before the Council and urged to confess who had incited him to commit the murder. He denied that anyone had done so. The report of the Council proceeding at which the King was present, is as follows:
The Council then debated whether the law of the land would justify putting Felton to the rack and the King directed that before any such thing should be done the advice of the Judges should be taken. On 13 November the King formally asked the Judges whether by law Felton might not be racked ‘and whether there was any law against it’, for said the King ‘if it might be done by law he would not use prerogative in this point’. On the next day all the Judges assembled at Serjeant’s Inn Fleet street and agreed unanimously that Felton ought not to be tortured on the rack ‘for no such punishment is known or allowed by our law’. There were one or two cases of torture after this but in 1641 the Court of Star Chamber was abolished and with it torture in England.
It is apparent that the abolition of torture in English law was not, as on the continent, attributable to the humanitarian movement but to the early development of conceptions of the rule of law which became embedded in the common law.
Bedlam was the hospital for the insane in eighteenth century London. On quiet nights the noise of the confined lunatics “rattling in their chains and making a terrible outcry echoed across the city”. During the day the inmates were on view for curious London sightseers who paid to walk around the grounds enjoying the antics of the mad. It was understandable therefore that William Hogarth, in his drawings of A Rake's Progress, should have depicted Tom Rakewell as ending his days in Bedlam. What was, on the face of it surprising, was that men such as Dr Johnson and Boswell and Sir Richard Steele would have visited Bedlam. Steele, having to look after three schoolboys took them '‘to see the lions, the tombs, Bedlam and other places that are entertainment for raw minds’. In the final decades of the eighteenth century the Enlightenment had failed to make any significant impact on this area of inhumanity.
The medieval understanding of mental abnormality was ignorant and superstitious. More than 1500 years had elapsed since the Greek doctors, under the influence of Hippocrates had examined illness as a natural process. In the case of insanity the Greeks differentiated between paranoia, dementias, hypochondrias and other mental disease. Soranus, an Alexandrian physician of the first century, carefully examined mental illness as an illness. In the fifth century St Augustine ascribed disease to demons. The behaviour of the psychotic often suggested to everyday observation that the soul is possessed by some alien force and thus because the mentally ill were thought to be afflicted by the devil they were treated by exorcism. Other treatments of a more or less benign character included shaving a cross in the person’s hair or the tying of the person to the rood-screen in the church so that the mental condition might be improved by hearing Mass.
The treatment of the insane in the Middle Ages was not deliberately cruel or at least not invariably so. The use of St Mary of Bethlehem hospital for the insane from the 14th century indicates a concern and ‘Poor Mad Men of Bethlehem’ received an increasing number of bequests for their maintenance from the 15th to the 17th centuries. Even in early English criminal law, ‘ absolute madness’ was a defence to an alleged crime. Theologically, the church never denied that the insane (except for certain monsters at birth) possessed a soul. But the notion of diabolical infection dominated attitudes and if “the mad proved to be troublesome they could expect to be beaten or locked up.”
The Greek spirit of rationalism survived in medieval Islam and, in regard to the insane, Muslim physicians and psychologists relied mostly upon clinical observation, not demonological explanation. The Arab physician, Najab ud-din Muhammad first described a number of mental illnesses such as agitated depression and neurosis. In the 11th century the Persian physician, Avicenna, was a pioneer in neuropsychiatry and was the first to describe such conditions as hallucination, mania, melancholia, dementia, stroke and tremor.
The 17th century scientific revolution in Europe influenced physiology with such notable discoveries as the circulation of the blood and the existence of microbes. It was accepted that the cause of disease was not magical or demonic. But little immediate progress was made in the field of mental illness.
Foremost in bringing about humanitarian change was Dr Phillipe Pinel (1745–1826). Pinel was physician to Biutre prison in Paris where a large number of lunatics were kept. An incident occurring to a friend led him to his life’s work. The friend suddenly lost his mental balance and, as was customary, was locked up in the asylum. He managed to escape from his cage and took refuge in the woods. A week later his body was found half devoured by wolves. Pinel decided to devote himself to the study of insanity.
What then took place is described by Kenneth Walker in his The Story of Medicine: "Even in Pinel’s time the insane were regarded as being deliberately malicious and many people still attributed their behaviour to their possession by a devil. If, therefore, exorcism failed, the correct treatment was to punish them for their stubbornness in clinging to evil. Pinel reacted with all his being against this medieval idea of possession for he was convinced that the insane were sick people in need of treatment." In his campaign for humane treatment of the insane he approached Couthon the leader of the Paris Commune who agreed to visit Biutre because he believed strongly in the ideal of equality of human beings. "As he tramped with his guide through the damp underground corridors of the dark prison he was greeted by the ravings and the curses of 300 mad men and was deafened by the pounding of their manacles against iron bars." Pinel insisted on his wish to set some of these patients free. Couthon, despite thinking Pinel an impractical visionary, agreed. Then came the dramatic moment when Pinel freed an English captain who had lived in chains for forty years and had, despite that, killed a prison attendant with a blow from his manacles. Pinel talked to him at length, persuading him to behave if freed. “Within the space of a few days, Pinel had the chains removed from more than fifty men who had hitherto been regarded as dangerous madmen … because they were being treated kindly they ceased to be rebellious and disorderly”. Pinel did away with the old violent methods of treatment such as bleeding, purging and blistering. He published his Trait Medico- Philosophique sur L’asientation Mentale ou la Manie in 1801. It is one of the classics of psychiatry and did much to end ‘the moral treatment of the mad’.
About 1800 attitudes towards the insane began to change. It became accepted that insanity was not diabolically caused but, like other disease, fell within the realm of medical explanation and medical treatment. The science of abnormal psychology was born. This in turn led to the insane being recognized as human beings in need of care and active compassion. It also led to the assumption of responsibility by the State for the provision of organized care. Shortly before the end of the 18th century the Society of Friends opened a hospital for the insane at York. It was the first in England to treat the insane with humane methods. The success of the York hospital aroused public feeling and support. Lord Shaftesbury (then Lord Ashley) set out to reform the chaotic and inhumane system of lunatic asylums which then existed. Lunacy Commissioners were to be appointed. The House of Lords obstructed the passage of the Improvement Bill but in 1828 a Bill was enacted providing for supervision by Metropolitan Commissioners.
Of the humanitarians who led in this field the most prominent were the Tuke family. It was William Tuke who had in 1792 proposed the establishment of the Retreat at York under the management of Friends. His grandson, Samuel Tuke (1784–1857) published the very influential work in 1815, Practical hints on the Economy of Pauper Lunatic Asylums and Daniel Tuke (1827–1895), with J.C. Bucknill, published A Manual of Psychological Medicine which, for a long period, was the standard work in the area.
Legislation placed the care of the insane on an organized and humane basis. In England, the Lunacy Act 1890 provided that subject to a limited number of exceptions no lunatic could be lawfully detained against his will except by order of an authorised person and by law. Provision was made for asylums and for their frequent inspection. Unnecessary restraint of a lunatic was an offence.
It was discovered through experience that isolation of the insane in institutions was not in fact a sound way to treat them. Successful treatment required a friendlier environment and, in some cases, involvement in the wider community. Gradually asylums were dismantled. The pejorative description ‘lunatic’ was replaced by ‘a person of unsound mind’ in 1930 and a ‘mentally disordered person’ in 1959.
The study of psychology as a field of study separate from philosophy began towards the end of the 19th century. Experimentation on mental behaviour commenced with Weber. In 1899 Emil Kraepelin identified the condition dementia praecox in which a person loses touch with reality and distinguished it from the manic depressive psychosis. From this point modern psychology developed.
The twentieth century culminated in the intersection of reformist and philanthropic humanitarianism in the treatment of the insane. The rational recognition that the insane are fully human, are not diabolically controlled and manipulated and the legislative provision to protect and rehabilitate them all belong within the traditions of the humanitarian movement, combining care with reason.
In England, in 1800, the rights of a woman devolved upon her husband on marriage. She could not make a Will or be party to a contract or appear in court. The wife’s personal chattels automatically became the property of her husband. As John Stuart Mill, writing in the 1860s said, “she could acquire no property but for him, the instant it becomes hers even if by inheritance, it becomes ipso facto his.” The husband’s authority to chastise her physically had been modified somewhat since Blackstone had written in the 18th century but she had almost no legal redress even if treated brutally. “ Husbands”, Mill wrote, “indulge the utmost habitual excesses of bodily violence towards the unhappy wife who alone, at least of grown persons, can neither repel or escape from the brutality”. For all practical purposes divorce was unobtainable. The only judicial decree available was judicial separation which left the parties married but physically separated. In that event, her husband had an almost absolute right to the custody of the children. John Copley, 1st Baron Lyndhurst on the second reading of the Matrimonial Causes Act 1857 described the wife’s condition on separation as “almost a state of outlawry”. In Mill’s description a married woman was “the actual bond servant of her husband.” He stated the situation of women very precisely: “The social subordination of women thus stands out as an isolated fact in modern social institutions …. A single relic of an old world of thought and practice exploded in everything else. For what is the peculiar character of the modern world – the difference which clearly distinguishes modern institutions, modern social ideas, modern life itself, from those times long past? It is that human beings are no longer born to their place in life and chained down by an inexorable bond to the place they are born to, but are free to employ their faculties.”
The first stirring of feminism occurred at the time of the French Revolution. Mary Wollstonecraft, then about 33, published Vindication of the Rights of Women in 1792. It was a clear and articulate rejection of the subordination of women, a protest against the assumption that “women were only the plaything of men”. It was the first feminist work written and its publication caused an outcry.
Just before the middle of the 19th century there was action. In 1838 the Chartists included female suffrage among their proposals. Mrs Henry Reed published A Plea for Women (1843). A spate of pamphlets demanding suffrage for women followed. In 1857 Florence Nightingale returned from the Crimea to establish the nursing profession and in the same year the Matrimonial Causes Act was passed allowing for divorce by the wife on the ground of a repeated act of adultery (the husband would be entitled in the event of a single act of adultery by the wife).
In 1869 Mill published The Subjection of Women, a sustained and brilliant protest at the inequality and inhumanity of the condition in which society had placed women. The book was, as Mill had expected, ridiculed. And yet it became the philosophic base of the 19th century women’s movement. Mill called for the removal of all disabilities imposed upon women and “the opening to them of all honourable employments, and the training and education which qualifies for those employments”..” Mill was not alone. He was supported by the Christian Socialists and by Charles Kingsley, Charles Dilke and John Morely.
But remember the date of this evening. April 6th 1867. At Westminster only one week before John Stuart Mill had seized an opportunity in one of the early debates on the Reform Bill that now was the time to given equal rights at the ballot box. His brave attempt (the motion was defeated by 196 to 73, Disraeli the old fox abstaining) was greeted with smiles from the average man, guffaws from Punch (one joke showed a group of gentlemen besieging a female Cabinet Minister, haw haw haw), and disappearing frowns from a sad majority of educated women, who maintained that their influence was best exerted from home. Nevertheless, March 30, 1867, is the point from which we can date the beginning of feminine emancipation in England.
In 1869, the year in which Mill’s work was published, Sophia Jex-Blake was given permission to attend medical lectures at Edinburgh university. Male students were furious and what became known as the ‘Riot of Surgeon’s Hill’ occurred when female students were pelted with mud and sheep were ushered into the lecture theatre. Cambridge began admitting women in the 1870s. Oxford was slower but was the first to allow women to take degrees. Primary and secondary education had hitherto been denied to women but the Education Act 1870 imposed compulsory education for girls as well as boys. In 1882, with the enactment of the Married Women’s Property Act married women became able to retain and own beneficially their separate property.
In the fields of divorce and maintenance that the wife remained in an oppressively unequal position. So much so that the European novel of the latter part of the 19th century depicted the ‘prison’ in which the wife was confined and the tragic consequences: Anna Karenina suicides, Tess of the d'Urbevilles is executed for murder and Irene Forsyte only escapes from her unhappiness after her distracted lover is killed.
Adultery was the only ground for divorce in the 1857 Act. Desertion or cruelty by the husband provided no grounds nor did his insanity. Maintenance was always difficult to obtain and for 30 years after the Divorce Act payment of maintenance would be ordered in favour of an innocent wife only so long as she remained chaste. Only in the last quarter of the twentieth century were these inequalities modified and removed. By 1950 husband and wife were in an approximate state of equality in matrimonial law.
Despite Mill’s pioneering work and that of others, women in England still had no vote in 1900. Certain European countries, New Zealand (1893), South Australia (1894) and Western Australia (1899) and a number of American states had allowed women to vote but not England. After John Stuart Mill’s death in 1874 suffrage Bills continued to be introduced but were just as regularly defeated.
The Women’s Social and Political Union founded by Emmeline Pankhurst in 1903 was a militant movement. What followed was a succession of protests, more or less violent. Lloyd George’s house was damaged by a bomb. Women chained themselves to Parliament, sat opposite the doorstep of 10 Downing Street and in 1906 interrupted the King’s opening speech to Parliament. Pankhurst and others went to prison. Emily Davidson lost her life when she threw herself under the King’s horse on Derby Day.
The First World War intervened. Women rallied to the war effort becoming nurses and bus drivers. They replaced men in the factories. In 1916, Asquith overwhelmed by the evidence of feminine capacity relented and agreed to legislation. Legislation assented to on the 6th February 1918 women were granted the vote and allowed to sit in parliament and by related legislation in 1919 became entitled to hold civil and judicial office. Other western countries followed a different course but the result was similar.
It is apparent that, with the women’s movement of the 19th century, the humanitarian movement for reform intersects with the human rights movement. A question arises whether it more properly falls within one or the other. The origins of each movement were more or less contemporaneous. They both depended upon natural law and the spiritual equality of human beings which that implied. They also both depended on the re-emergence of natural law upon secular foundations. The rise of natural rights involved turning natural ‘law’ in the direction of ‘rights’. It was these ‘rights’ which were relied upon in the great revolutions – English, American and French—of the 17th and 18th centuries. Both also derived from natural law the paramountcy of their claims over the State and positive law.
But there are differences. The humanitarian movement was concerned with ‘wrongs’. Unlike ‘rights’ the duties breached by these wrongs did not depend upon the exercise of a right by a right-holder. The duties were near-absolute. As mentioned,the humanitarian movement and human rights are closely related in the case of the women's movement.Mary Wollstonecraft sought “the vindication of the rights of women” and the ‘right to vote’, the franchise, is properly describable as a ‘right’.But when we look at the situation of women in the 19th century when the women’s movement began it was not just the deprival of this or that right. Women, as a class of human beings, had been singled out and as a class were, as John Stuart Mill said, in ‘a state of actual bondage’. They had a status of subordination. Status implies that a defined class of human beings in the community has, collectively, by virtue of membership of that class, different and unequal rights. Status may as in the case of children or the insane be protective but, in other instances such as slavery or serfdom, status is a badge of inferiority. That was the position of women at the beginning of the 19th century.
Before the 19th century cruelty to animals was quite generally indulged in for popular amusement. King Henry VIII of England was himself very fond of cock-fighting as was King James I. James appointed a special cock-master to breed and train his cocks. Sometimes a brandy was given just before a fight to provoke their spirit. In 1607 a Norfolk vicar wrote a commendation of the sport. Puritans protested but they did not do so on the ground of cruelty but because cock-fights were held on a Sunday. Cock fighting continued until well into the 19th century, often in conjunction with horse racing. As late as June 1, 1822, the Times advertised, “A main of cocks will be fought on Monday 3 June at the Cockpit Royal Tyburn Street Westminster between the gentlemen of Middlesex and Shropshire for five guineas a battle and fifty guineas for the best battler”.
A variant of cock-fighting was the throwing of cocks in which the cock was partly buried in the ground or fastened to a stake and stoned to death.
In the 17th century a special amphitheatre was built at Paris Gardens, Southwark, for bull and bear-baiting. Seating was provided for 1000 spectators. Later, a second ring was built exclusively for bear-baiting. In villages, a bear would be chained to a stake on a village green and set upon by dogs.
Maltreatment of animals was due partly to cruelty and partly to indifference. Nevertheless, it was encouraged, or at least, not discouraged by European thought. The stoics who advanced European ethics so much in the idea of the spiritual equality of human beings taught that this applied only to rational creatures and thus did not apply to non-human animals.
It may have been thought that the New Testament ethic of compassion would embrace animals but Saint Paul who had absorbed stoic teaching drew a clear distinction between God’s concern for man and for other animals.
The Pauline-stoic position was reinforced by the authority of St Augustine in the 5th century:
Christ himself shows that to refrain from the killing of animals and the destroying of plants is the height of superstition for, judging that there were no common rights between us and the beasts and trees, who sent devils into swine and with a curse withered the tree on which he found no fruit.” St Augustine observed that “the swine had not sinned nor had the tree.
The first writer in Europe to condemn cruelty to animals as a wrong in itself was the French essayist, Montaigne (1533–1599). In his essay on Cruelty, he wrote that “we have a general duty to be humane to animals” and it is a presumption that man “withdraws and separates himself from the crowd of other creatures”. In the 18th century David Hume argued that human intelligence and animal intelligence functioned in the same way. He said that “we should be bound by the laws of humanity to give gentle usage to those creatures”. It was not a matter of mere justice. It is not, Hume said, “the cautious, jealous virtue of justice” but humanity. Hume led to Bentham. More than anyone else it was Bentham and his philosophy and active persistence that resulted in a changed attitude towards animals. “ The question” said Bentham in his Introduction to the Principles of Morals and Legislation, “is not, can they reason? Nor, can they talk? But, can they suffer?”
In 1811, Lord Erskine (1750–1823) in a speech before the House of Lords, portrayed the cruelties inflicted upon animals and asked for protective legislation. In 1821, Richard Martin, a land-owner in Galway, proposed a law to prevent the ill-treatment of horses. The Bill was laughed out of the Commons. In the next year he secured passage of the Ill-treatment of Cattle Bill. It prohibited the cruel treatment of cattle and provided for the imposition of a fine of 5 pounds or imprisonment for 3 months for any person who wantonly and cruelly beat, abused or ill-treated any horse, mare, ox,sheep or other cattle.
There was however nobody to enforce the legislation. On 16 June 1824 Martin and a number of other humanitarians formed a society which had as its immediate purpose the gathering of evidence of the maltreatment of animals. Among the first members were the evangelicals William Wilberforce and Thomas Fowell Buxton. This Society later became the Royal Society for the Prevention of Cruelty to Animals, being designated ‘Royal’ by Queen Victoria in 1840.It was the leader in campaigns against brutal sports, experimentation and other forms of cruelty to animals and it became active in the prevention of cruelty to children and the enactment of Prevention of Cruelty to Children legislation in 1884.
The Animal Prevention Society campaigned for improved prevention of cruelty to animals legislation building on the 1822 Act. In 1849 the Cruelty to Animals Act imposed forfeiture and penalties for the ill-treatment of animals. This law, together with the 1854 amendment, became the foundation of future legislation in England and the model for other common law countries. In 1876, further legislation extended the Cruelty to Animals Act to experimentation upon animals for scientific purposes, where the animal is alive and the experiments are calculated to inflict pain. Subsequent legislation regulated vivisection requiring it to take place at a registered place and for an approved purpose.
What Bentham had initiated and the humanitarian movement had achieved was more than legislation. Over the course of the next century there was a revolution in social attitudes to the treatment of animals throughout the European world. Henceforward cruelty to animals would occur but it was never defended.
The formation of the Red Cross (The International Committee of the Red Cross) in 1863 to alleviate suffering resulting from war was almost the beginning of organized compassion internationally. The Red Cross was also largely responsible for developing the other strand of international humanitarianism, the birth of international humanitarian law.
Humanitarian action internationally had though already been evident in the progressive abolition of slavery during the 18th and 19th centuries. After abolition of the slave trade in Great Britain (1807), British cruisers intercepted foreign slave ships to prevent the trade. In 1885 the Treaty of Berlin forbade slave trading. Later, at the beginning of the 20th century, the world collectively denounced King Leopold II’s "Heart of Darkness" in the Congo and, as mentioned, international pressure forced him to yield his personal control. In 1926 the Slavery Convention confirmed that states had jurisdiction to punish slavers wherever apprehended.
The Crimean War (1854–1856) was the first European war for forty years. The British Army went to Crimea without a medical corps or medical service. In the barracks hospital at Scutari the spread of cholera, gangrene and dysentry raged uncontrolled. William Howard Russell of The Times, the first modern war correspondent, described the conditions. 25,000 lives had been lost. Public opinion was aroused. The Secretary for War persuaded Florence Nightingale who had administered a sanatarium in London to organize a corps of nurses to go to the Crimea. She did so and brought the death rate down by 40%. Her nursing corps became the foundation of modern nursing.
Attention became focused on the plight of the wounded. A terrible battle took place at Solferino in 1859 during the campaign by France and Piedmont against the Austrian empire. 300,000 soldiers fought; 6000 were killed and 30,000 were wounded in 15 hours. The wounded lay deserted because the retreating Austrians had taken all the carts and horses. A young Swiss banker, Henri Dunant witnessed the scene. As he later described it, “the wounded lay for days on the battlefield, bleeding to death, tormented by thirst, hunger, flies and the burning heat.” He saw the dead thrown into huge pits and was told some of the men were still alive when buried. Castiglione, the little town to where the wounded were eventually taken, was overwhelmed. The whole town had become a temporary hospital.
After returning home, Dunant recorded his experiences and in October 1862, published, at his own expense, A Memory to Solferino. Dunant did not suggest that what had happened was due in any way to lack of compassion but simply that there was no organization to cope. In the last pages of the work, he put forward the idea which led to the formation of the Red Cross. "It should be possible” he said "to form a society in every country when nations are at peace, from which men and women would be organized and trained so that they could give aid to the wounded in times of war”. He also proposed that some international principles be codified to regulate the treatment of the wounded in future wars and which would stipulate that friend and foe should receive equal treatment.
These proposals were taken up by Gustave Moynier, a Swiss lawyer, of great energy, who formed a five man committee with himself as chairman and Dunant as secretary. As a result of their efforts representatives of 16 European states met in Geneva on the 16th October 1863 and formally established the Red Cross.
It proceeded to propose an international convention for the care of the wounded. A Convention for the Amelioration of the condition of armies in the Field was adopted in 1864 and within three years was ratified by 21 nations. It specified that all wounded be accorded humane treatment, that medical personnel, whether military or civilian volunteers, should be considered neutral and that anybody helping the wounded should be ‘respected and remain free’ and that personnel should wear the Red Cross on a White background. Red Cross societies multiplied.
Amelioration, in the words of the first Geneva Convention, has remained the Red Cross’s core function. In the first world war alone it transmitted two and a half million letters for prisoners of war. It re-united families who had been fighting. It arranged for the accommodation in neutral countries of sick and wounded combatants and for their subsequent repatriation. It visited the internment camps of all the warring parties and, after the war, was responsible for repatriating 450,000 prisoners of war from Central Europe and Russia.
In the many wars since, the Red Cross has performed a host of relief and welfare tasks. It was again providing assistance to the wounded, the sick and the prisoners-of-war in the Second World War. There was now a new dimension. The world was stunned by the number of civilians killed or injured in the Second World War. The number killed was a staggering 24 million. Millions of people scattered throughout Europe were homeless. After the second world war Europe “was faced with a tidal wave of refugees’. There were 9 million displaced persons in Germany alone, living in overcrowded conditions. The United Nations Refugee Relief Administration (UNRRA) was established to help them and assist in their resettlement. Slowly they were dispersed to Australia, Canada the United States and other countries. Non-Government organizations such as Oxfam, formed during the war to alleviate distress in Greece, Save the Children and Médecins Sans Frontières have, together with the Red Cross, carried forward the humanitarian impulse in this field.
The international protection of refugees hardly existed before the First World War. Russians fleeing the Bolshevik Revolution and Armenians fleeing the Turks faced difficulty in proving identity but also there was no internationally agreed definition of ‘refugee’. Two early treaties of a limited character were entered into during the thirties, one specifically directed to refugees from Germany. The aftermath of the Second World War made the problem of refugees more urgent. The Office of the United Nations High Commissioner for Refugees was established in January 1951 and, in July of that year, the Status of Refugees Convention was opened for signature and ratification. It defined a ‘refugee’ as “ a person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself for the protection of that country: or, who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”. A refugee cannot be returned or sent to a country where he or she may be persecuted.
Humanitarianism is particularly used to describe the thinking and doctrines behind emergency response to humanitarian crises. In such cases it argues for a humanitarian response based on humanitarian principles, particularly the principle of humanity. Nicholas de Torrente, Executive Director of MSF-USA writes:
The Red Cross became the leading inspiration in the regulation by international law of the conduct of war in a humane way. The international conventions protecting the wounded and sick members of armed forces on land (1864) and sea (1906) and prisoners-of-war (1929) were replaced by the four Geneva Conventions of 1949 which supplemented and continued to provide the framework for regulating conduct in war.
The first and second Geneva Conventions provide for the humane care of sick and wounded combatants on land and sea without discrimination. Immunity is to be granted to hospitals, medical personnel and army chaplains and also to hospital ships. Provision was made for recognition of the Red Cross emblem. The third convention protects prisoners-of-war and in doing so revises the 1929 convention in the light of the second world war experience. Use of prisoners of war for military labour, for medical experiments or as objects of public insult or curiosity is forbidden. All prisoners-of-war are immune from prosecution for their behaviour as combatants unless they committed war crimes. Torture or any form of coercion to extract information are absolutely prohibited. The fourth Geneva Convention was new. It provides for the protection of civilian persons in time of war. Its aim is to secure the humane treatment of persons in occupied territories. They are entitled to respect for their customs and religion and particularly for their family ties. Women are guaranteed protection from rape and forced prostitution. Civilians must not be used as hostages or for reprisals; nor may they be used for forced labour or subject to mass deportation. Article 3 (common Article 3) is common to all conventions. It prohibits murder, hostage-taking, ‘outrages upon personal dignity’ and extrajudicial executions. In 1977 additional protocols sought to apply protection to armed conflict not of an international character.
International humanitarian law has proceeded through a number of stages. These overlap. Originally, it was integrally bound up with ‘war’ but gradually it has become an independent field of legal control on humanitarian grounds.
The Geneva Conventions were concerned with war and, at least at their inception, with the protection of those engaged in war. Subsequently, in the fourth convention of 1949, they included the protection of civilians from the consequences of war.
A second strand of international humanitarian law, also initially related to war, sought to prescribe the means by which war might be conducted. Early steps in the evolution of this strand had begun in the latter part of the 19th century, following the American Civil and Crimean wars, and prompted by fear of the loss of life and destruction caused by considerable improvements in weaponry. These efforts came together in the Hague Convention (1907). They were based upon two principles: that war should be restricted to combatants and any means adopted which offended that principle should be proscribed [This ancient principle had been articulated by Honore Bonet in the 15th century and was based upon the proposition that war was a relation between state and state and not between man and man]; second was the principle that the means to attain victory in war were not unlimited. This negative proscription became increasingly important as new weapons with increasing destructiveness were invented and developed.
The inter-war period consolidated these developments but initiated only the proscription of poison gas (1925). The attempt to control the aerial bombing of civilians was unsuccessful.
Between November 1945 and October 1946, 22 high ranking Nazis were tried at Nuremberg before an International Military Tribunal. This had been established by an Agreement in London (the London Agreement) in August 1945 by the United States, Great Britain, the Soviet Union and France. The Charter of the 8th August 1945,which established the Tribunal specified in Article 6 the offences to be tried. It distinguished between ‘war crimes’, i.e. violations of the laws and customs of war (which included maltreatment of the civilian population in occupied territories), and ‘crimes against humanity’.
‘Crimes against humanity’ were defined as ‘murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of domestic law of the country where perpetrated.”
In its judgement the Tribunal said of the London Charter that “it is the expression of international law existing at the time of its (the Tribunal’s) creation. The ‘Martens clause’ in the Hague Convention 1907 extended to the protection of “the principles of the laws of nations as established by and prevailing among civilized nations, by the laws of humanity, and the demands of public conscience”.The laws of humanity were thus woven into customary international law: when denouncing the massacre of the Armenians in 1915, the allied governments accused the Turkish government of being responsible for ‘crimes against humanity and civilization”.
Nevertheless, the articulation of ‘crimes of humanity’ as a distinct category of offence expressly differentiated from ‘war crimes’ was a new development. Crimes could be committed by governments or approved by governments and these could occur ‘before or during the war’. The Nuremberg Tribunal did not however sever the link with war completely. Although the conduct might have taken place before the war, it needed to be connected with another specified crime within the jurisdiction of the tribunal i.e. a ‘war crime’ or ‘crime against peace’. However, in what became known as the Subsequent Nuremberg Trials of the Doctors, Judges and lesser officials, the Law of the Control Council, which established these tribunals, allowed for trials of crimes against humanity committed before and unconnected with the war and jurisdiction was exercised in regard to offences not linked to the war.
In December 1946 the United Nations General Assembly confirmed that the Nuremberg Charter and the reasoning of the Tribunal reflected the principles of international law. The Genocide Convention 1948 finally severed this aspect of international humanitarian law from ‘war crimes’ and from the need for a link with war.
The Genocide Convention 1948 made genocide an offence under international law. It is capable of being committed at any time, including times of peace. The offence is constituted by conduct committed with the intention, to destroy in whole or in part a national, ethnic, racial or religious group.The Convention was ratified by a large number of states and now, independently of treaty, forms part of customary international law.
On the 17 July 1998 an International Conference at Rome adopted the Rome Statute for the establishment of an International Criminal Court. This followed many years of negotiation and discussion. The final vote was 120 in favour, 21 abstentions and 7 opposed.
The Statute came into force on the July 1, 2002 after the 60th state had ratified it. This was in fact quite speedy as each ratifying state had first to enact domestic legislation in accordance with the Statute. By 2008 more than 100 states have become parties to the Statute. Notable non-parties are the United States, China and Israel. Nevertheless, the degree of international consensus is such that the offences specified reflect customary international law.
In a single instrument the Statute sets out definitively “the most serious crimes” internationally: “genocide”, “war crimes” and “crimes against humanity”. It also includes the “crime of aggression” which will become operative when defined in accordance with the procedures provided for in the Statute.
The Statute consolidates many of the concepts of international humanitarian law. “Genocide” is defined in the same terms as in the Genocide Convention 1948. The “war crimes” specified draw upon and incorporate the provisions of the Geneva Conventions. “Crimes against humanity” are constituted by the following ‘acts’: murder; extermination; enslavement; deportation or forcible transfer of population; imprisonment; torture; rape; enforced prostitution; forced pregnancy; enforced sterilisation; persecution on ethnic, racial, religious or other discriminatory grounds; the enforced disappearance of persons and apartheid. But these ‘acts’ will only constitute ‘crimes against humanity” when “committed as part of a widespread or systematic attack directed against a civilian population with knowledge of the attack.” No person is to be exempt for responsibility for these crimes because he or she was a head of state or held some other official position.
The Court is an independent, international body. It may however only exercise its jurisdiction where the relevant national court is unable or unwilling to proceed.
An inchoate development in the 19th century from the humanitarian impulse was the international right of humanitarian intervention. The right presupposed that a state or number of states could intervene in another state to prevent permitted, inhumane behaviour of a gross kind. It was inchoate and undeveloped because it was inconsistent with the axiomatic principle of international law – state sovereignty. Each state was sovereign within its territory and external intervention, without its concurrence, violated international law.
Nevertheless, suggestions of such a right go back to Grotius and Vattel in the 17th century. William Ewart Gladstone secured parliamentary approval to send ships to protect Christians from slaughter by Turks in Bulgaria in the late 19th century. In 1898 the United States declared war on Spain because its oppressive rule in Cuba “shocked the conscience of mankind.” And in his State of the Union address in 1904, U.S. President Theodore Roosevelt claimed the right and duty to intervene in the case of crimes committed “on a vast scale”.
There were, however, clear difficulties in carving out an exception to the principle of sovereignty without undermining the rule of non-intervention. It was difficult to define with precision the degree of inhumanity which would justify intervention or to decide who could determine that.
The issue arose acutely because of the shame felt by the international community over the failure to take any action to prevent the massacre of the Tutsis by the Hutu in Rwanda (1994). The right of intervention was invoked in the Kosovo War when Serbs sought to use terror to drive the ethnic majority from their homeland. Consideration of the right under international law at this time required that it be consistent with the provisions of the United Nations Charter. Article 2 (4) of the Charter provided that “all members shall refrain in their national relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” Chapter VII of the Charter permitted the Security Council to authorise the use of force in the case of “a threat to international peace and security”.
It was in this context that between 14 and 16 September 2005 a United Nations Summit brought together 170 countries to discuss the question. The concept was re-named – ‘the right to humanitarian intervention’ being replaced by “the responsibility to protect”. It was agreed that “ each individual state has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity”. When a state fails to do so, “the international community, through the United Nations, also has responsibility”. The Agreement provides for collective action “in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with the relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes and crimes against humanity.”