Josephine Butler opens her 1895 pamphlet by declaring that while the moral aspect of prostitution regulation is paramount, the constitutional and legal dimension is scarcely less important. She immediately invokes legal authorities—Professor Sheldon Amos, Mittermayer, and Montesquieu—to frame the debate as one of penal legislation and civil liberty. Butler contends that state regulation creates arbitrary tribunals and new crimes with severe penalties, introducing a dangerous laxity into the criminal code. The excerpts show her method: comparing the principles of a fair trial with the practices of regulation, which she finds wanting in every characteristic of justice.

Legal Authorities as Rhetorical Weapons

Butler does not rely solely on moral argument. She strategically cites three legal thinkers to anchor her constitutional critique. Sheldon Amos, a professor of jurisprudence, is referenced for his book Laws for the Regulation of Vice. Mittermayer is quoted on the penal code as the keystone of public law. Montesquieu is invoked for the principle that liberty depends on the excellence of criminal laws. By aligning herself with these authorities, Butler positions her opposition to regulation as grounded in established legal doctrine rather than sentiment. The excerpts show her using these citations to elevate the debate from a social issue to a question of fundamental rights.

The Invention of New Crimes and Arbitrary Tribunals

Butler’s central charge is that regulation creates an arbitrary tribunal that tries arbitrarily-created offences. She uses the phrase “invented new crimes” to emphasize that these are not traditional offenses but novel legal constructs. The penalties attached are described as “new and terrible,” and she warns that this introduces an element of dangerous laxity into the criminal code. The excerpts do not specify which regulations she targets, but her language suggests a system that bypasses ordinary legal protections. She contrasts this with the characteristics of a fair penal trial, which she enumerates from the thinker Lieber, including no intimidation before trial and no artifice to induce confession.

A Constitutional Question for Europe and the Colonies

Butler frames the controversy as a constitutional and legal rights issue extending beyond Britain. She mentions “the controversy throughout Europe and in our own colonies,” indicating that the regulation of prostitution was an international debate. The excerpts show her appealing to a broader audience by invoking the concept of “constitutional law” as defined by Lieber. She argues that the regulations violate every point of a just trial, implying that the stakes are not merely local but threaten the stability of justice across jurisdictions. This global framing suggests that Butler saw the fight against regulation as part of a larger struggle for legal rights.

Butler’s pamphlet is a tightly argued legal brief rather than a moral appeal. Readers should attend to how she uses the word “constitutional” not as a vague ideal but as a precise legal standard. The excerpts provide only the opening of her argument; the full text likely expands on the enumerated points of a fair trial and applies them to specific regulations. For those interested in the history of feminist legal activism, this work shows Butler’s strategic use of legal scholarship to challenge state power.