21. Tumultuous and riotous assemblies

The Mongolian capital Ulaanbaatar is currently under a State of Emergency, as a result of disturbances following widespread dissatisfaction with the conduct and outcome of the country's recent parliamentary elections. Protesting crowds in the capital's central Sukhbaatar Square have led to riots which have resulted in five deaths, the destruction of the ruling Mongolian People's Revolutionary Party headquarters, and damage and looting to the Culture Palace. English language commentary on the events has been posted at the Asian Gypsy blog, scoring valuable points for citizen journalism. (The limited international interest in the run-up to the election is wryly underlined by this posting, remarking on the fascination with the fact that some voters arrived at polls on horseback.)

Today's Guardian has found room for the subject, and takes this assessment from a Reuters report:

Analysts and foreign business executives in Mongolia played down the violence, saying most Mongolians did not support it and describing it as teething troubles for a young democracy.

"The outskirts of Ulan Bator have a lot of poor and frustrated youngsters who would use any pretext to get to streets and participate in any turmoil[.]"

Whether by accident or design, the Guardian avoids the word 'riot.' The Ninth Edition of Encyclopaedia Britannica provides the following definition:

RIOT is "an unlawlful assembly which has actually begun to execute the purpose for which it assembled by a breach of the peace and to the terror of the public. A lawful assembly may become a riot if the persons assembled form and proceed to execute an unlawful purpose to the terror of the people, although they had not that purpose when they assembled" (Stephen, "Digest of the Criminal Law," art. 73).

[...]y. In its previous stages it may be an affray, an unlawful assembly, or a [rout], according to circumstances, and it may, if carried far enough, become treason. An affray is the fighting of two or more persons in the public street. An unlawful assembly is an assembly of three or more persons with the intent to commit a crime by force or carry out a common purpose, lawful or unlawful, in such a way as to give reasonable grounds for fearing a breach of the peace. A rout is an unlawful assembly which has made the motion towards the execution of its common purpose. If the unlawful assembly should begin to demolish a particular inclosure, that would be a riot ; if it should proceed to pull down all inclosures, that would be treason.

I imagine that a history of disturbances fitting the legal definition of 'riot' in British history would provide an interesting parallel to show social progress and the movement of democracy. Whenever unsatisfactory conditions such as shortages of food or employment have led to large crowds of aggrieved citizens congregating, the law has sought to preserve the peace. Inevitably, the forces of law and order are in a reactionary position in these engagements, but that a 'riot' by this definition includes the wanton (or directed) destruction of property, draws a distinction between that act and a 'protest.' My right-on NERVE 2008 Calendar lists an upcoming anniversary on 4th of July as:

1981: Start of Liverpool 8 uprising ('the riots')

As though the scale of events in Toxteth that year are somehow only alleged. The Boston Riots of 1770 are of course remembered as a 'massacre' in the former colonies: the emotional impact of soldiers firing at a mob attacking them in a city where their presence is resented by much of the populace, is a phenomena not without significance to the present United States.

There is something of a nostalgic, old-worlde charm to the manner in which English laws on riotous assemblies were once carried out: by means of the 'reading of the Riot Act.' And something somehow quaint in notion that this would take place in the event of an unlawful assembly beginning to transform into the uglier stage - where modern laws involving Designated Areas and Anti-Social Behaviour Orders can be put in place for months at a time to empower the police against such an assembly occurring in the first place.

[It is] the duty of a justice, sheriff, mayor, or other authority, wherever twelve persons or more are unlawfully, riotously, and tumultuously assembled together to the disturbance of the public peace, to resort to the place of such assembly and read the following proclamation :- "Our Sovereign Lady the Queen chargeth and commandeth all persons being assembled immediately to disperse themselves, and peaceably to depart to their habitations or to their lawful business, upon the pains of the Act made in the first year of King George for preventing tumultuous and riotous assemblies. God save the Queen." It is a felony punishable with penal servitude for life to obstruct the reading of the proclamation or to remain or continue together unlawfully, riotously, and tumultuously for one after the proclamation was made or for one hour after it would have been made, but for being hindered.

The heavy penalty reflects the opinion that the offence "is the most grave kind of breach of the peace known to the law, short of treason." It is notable, however, that the penalties are incurred after fair warning, in the form of reading of the proclamation, is given. Furthermore, a distinction is noted that goes some way towards forestalling the Act and relating law being abused by justifying provocation from the forces of law and order themselves:

A matter of interest is the extent of the protection afforded by the Riot Act to soldiers acting under the commands of their officers. The soldier is at the same time a citizen, and the mere fact of his being a soldier is not sufficient to exonerate him from all responsibility. No case in which the question has called for a decision seems to have arisen. It is the opinion of Mr Justice Stephen that a soldier would be protected by orders for which he might reasonably believe his superior officer to have good grounds [...]. On the other hand, he would probably not be protected by an order plainly unnecessary, such as an order to fire into a crowd of women and children when no violence was observable.

This brings to mind the events in Londonderry of 1972 (and the much subsequent inquiry of 1998-2004) notorious as 'Bloody Sunday.' The last point of no violence being observable is largely contradicted by the majority of accounts which concede that British troops had been attacked, if only by a small group of teenagers throwing stones, but the question of whether soldiers had been given an immoral order and whether they bore any responsibility for obeying such an order, was at least (albeit after considerable time, at great expense and to the satisfaction of very few) asked.

FOOTNOTE: More pedantry. Where the word "rout" appears in square brackets above, EB9 printed "riot", but I took it from the later reference to rout and the context being stages that lead to and succeed a riot, that this was a rare error in our noble work of reference. As the word is not being used in this instance in a sense with which I am familiar, and as I am myself fallible, it could be that my correction is itself an error. You have been cautioned.

14. The invasion of purity

SEDUCTION

The action for seduction of an unmarried woman in England stands in a somewhat anomalous position. The theory of English law is that the woman herself has suffered no wrong ; the wrong has been suffered by the parent or the person in loco parentis, who must sue for the damage arising for the loss of service caused by the seduction of the woman. Some evidence of service must be given, but very slight evidence will be sufficient. Although the action is nominally for loss of service, still exemplary damages may be given for the dishonour of the plaintiff's family beyond recompense for the mere loss of service. An action for seduction cannot be brought in the county court except by agreement of the parties. As to seduction of a married woman, the old action for criminal conversation was abolished by the Divorce Act, 1857, which substituted for it a claim for damages against the co-respondent in a divorce suit.Seduction in England is not as a rule a criminal offence. But a conspiracy to seduce is indictable at common law. And the Criminal Law Amendment Act, 1885 (which extends to the United Kingdom), makes it a felony to seduce a girl between thirteen and sixteen (48 and 49 Vict. c. 69, SS 4, 5). The same Act also deals severely with the cognate offences of procuration, abduction, and unlawful detention with the intent to seduce a woman of any age. In Scotland, the seduced woman may sue on her own account.

United States.-In the United States State legislation has generally modified the common law. In some States the father brings an action as the representative of the family whose purity has been invaded ; in others the woman herself may bring the action. In many States there is a criminal as well as a civil remedy. The penal codes of New York, New Jersey, Louisiana, and other States make it a crime to seduce under promise of marriage an unmarried woman of good reputation. Subsequent intermarriage of the parties is in most cases a bar to criminal proceedings. Massachusetts goes still further. By the law of that State if a man commits fornication wityh a single woman, each of them shall be punished by imprisonment not exceeding three months, or by fine not exceeding $30. The seduction of a female passenger on a vessel of the United States is an offence punishable by fine or imprisonment. The fine may be ordered by the court to be paid to the person seduced or her child (Act of Congress of 24th March 1860). The State legislation of the United States is in remarkable opposition to the rule of the canon law, by which the seduction of a woman by her betrothed was not punishable on account of the inchoate right given over her person given by the betrothal.

(from volume 21 of the 9th edition of Encyclopaedia Britannica, published 1886.)

5. Infants, Lunatics and Married Women

From Vol. 6 of the 9th Edition of the Encyclopaedia Britannica (1877):

"CONTRACT is a bargain or agreement enforceable by law. The law of contract occupies so large a space in all civilized systems of law, that only a few of its more leading principles can be stated here. There is a general harmony in the jurisprudence of modern nations on this subject which is not to be found in other departments of law. [...]

"Certain classes of persons are under peculiar disabilities in matters of contract, viz., infants, lunatics, and married women. [...]

"A married woman, being in the eyes of the law merged in her husband, cannot bind herself by contract."

4. Pregnancy: Medical Jurisprudence, Infanticide and Monsterism

My wife is currently 36 weeks pregnant and we are sharing the joy of impending parenthood. From friends, relatives, medical staff, magazines, the internet and so on and so forth we can in no way be said to be suffering from a deficiency of advice or information on the subject, but instinct and a sense of duty to this blog leads me to turn to Pregnancy in the Ninth Edition of the Encyclopaedia Britannica's Index, where I am referred to Volumes 15, 13 and 16, and the subjects of MEDICAL JURISPRUDENCE, INFANTICIDE and MONSTERS. I begin to suspect that a young couple at the twilight of the 19th century might not have received the same degree of support and reassurance available to us today.

So, in Volume 15, T. Stevenson M.D. of Guy's Hospital tells us that pregnancy "presents one of the widest fields for medico-legal evidence. The limits of age between which it is possible, the limits of utero-gestation, and the signs of pregnancy may all in turn be the subjects of investigation."

The limits of age are a simple enough matter "being limited by the age of puberty on the one hand and the cessation of the monthly flow" on the other. The limits of utero-gestation are "not in England fixed by legislation" but curiously the French code "fixes the extreme limit of three hundred days." This limit is "perhaps never exceeded, if ever reached", which seems fortunate for all parties concerned. Frustratingly, an exact medical definition of the term of gestation is baffled for non-Gallic nations as "[t]he uncertainty of females in fixing the exact date of conception has given rise to the discrepant opinions of physiologists on the subject."

And why is this significant? The following paragraph explains.

"The signs of pregnancy are of the utmost importance to the medical jurist. He may be called upon to pronounce upon the virtue of a female, to sustain or rebut a plea for divorce, to determine whether a capital sentance shall be carried out, or to determine whether it is probable that an heir will be born to an estate. Should he err in his judgement - and mistakes are very possible in the earlier months of utero-gestation - he may commit a grievous wrong."

Indeed.

Medical Jurisprudence is one matter, let us now see what we can learn from Volume 13, W. C. Smith LL. B., Advocate, and the subject of Infanticide.

Firstly, we see that this is a subject of which its history "as an archaic institution has already been referred to in the article FOUNDLING HOSPITALS (vol ix. p. 481)." In opening W. C. Smith acknowledges that principal causes of infanticide have varied in different times and cultures. Where infanticide has served a religious purpose, its victims have primarily been male in atonement for sacrilege as of course the boy "being the nobler child, was preferred." Otherwise victims have primarily been female, as a "positive check" (in the words of Malthus) against "the reckless propogation of children far outrunning the means of subsistence which the energy of the parents can provide", and furthermore it is "because girls cannot provide for themselves that they are killed."

The writer suggests that occurences of infanticide in India were more complex, and he examines the matter in some detail. He reminds us that the "wise action of the British Government" reduced occurence of the practise.

"According to the present law, if the female children fall below a certain percentage in any tract or among any tribe in northern India where infanticide formerly prevailed, the suspected village is placed under police supervision, the cost being charged to the locality. By these measures, together with a strictly enforced system of reporting births and deaths, infanticide has been almost trampled out ; although some of the Rajput clans keep their female offspring suspiciously close to the lowest average which secures them from surveillance."

Oh, those wily Rajputians!

Although earlier in the article the observation is made that "Infanticide still survives among many savage races", we now read that the modern crime "shows no symptom of diminution in the leading nations of Europe."

"In all of them, it is closely connected with illegitimacy in the class of farm and domestic servants. The crime is generally committed by the mother for the purpose of completing the concealment of her shame, and in other cases, where the shame has not survived, in order to escape the burden of her child's support. The paramour sometimes aids in the crime, which is not confined to unmarried mothers."

We learn again of the peculiarities of the French statutes, for in that country "inquiry into paternity is forbidden", leading to the preservation of life "at the expense of morality."

In English law of the 19th century, a child is considered a human being at the moment of birth, and so killing of a child "is homicide - punishable by death - when it dies after birth in consequence of injuries received before, during, or after birth." This leads to niceties of distinction between homicide and abortion - also then a crime, but not a capital offense - the maximum punishment, we are informed, being penal servitude for life.

The author clearly acknowledges the moral complexities of these issues and the problems posed in framing law in the matter. He leaves us,however, in no doubt that he considers abortion to be utterly abhorrent, and is displeased to note that it is a crime which prevailed extensively "even in classes of society in which infanticide proper would not be thought of without a shudder."

It is difficult to imagine that W. C. Smith would be much taken with the moral climate of the modern world and our loss of shame. Still, reading that thirty years prior to publication of Volume 13 of the Encyclopaedia Britannica "a large number of children were murdered for the mere purpose of obtaining the burial money from a benefit club", and reading about the then prevalent "baby-farming houses of London" to which an unwanted child might be sent with payment of a "ridiculously insufficient sum for the maintenance of the child" leading to a "great rate of mortality", does give some evidence that the price of an impaired morality may be worth paying.

And so we come to Volume 16, Charles Creighton, M.A., M.D., and MONSTER. I suppose it goes without saying that this essay, a catalogue of a comprehensive range of birth defects, was not written with the purpose of providing any comforts or reassurance to prospective parents to be. Indeed, it might have proven particularly unfortunate for any Victorian wife to read the paragraphs indicated by the index entry - concerning the possible causes of congenital abnormality. Dr Creighton informs us that "[m]aternal impressions during pregnancy have often been alleged as a cause, and this causation has been discussed at great length by the best authorities. The general opinion seems to be that it is impossible to set aside the influence of subjective states of the mother altogether. The doctrine of maternal impression has often been resorted to when any other explanation was either difficult or inconvenient ; thus, Hippocrates is said to have saved the virtue of a woman who gave birth to a black child by pointing out that there was a picture of a negro on the wall of her chamber." Unwilling as our author is to dismiss this possible explanation of monsterism, which of course has retained its currency in the beliefs practised by Scientologists today, he also offers us the "erratic spontaneity of the embryonic cells and cell-groups" as possible culprit.

One has to hope that detailed accounts of infanticide and five comprehensive pages on the subject of congenital deformity, against, well, nothing at all on the simple biological facts of the process, would not have any kind of negative impression themselves.

[www.1902encyclopedia.com have gone to the trouble of uploading the entirity of the MONSTER article for your edification here]