From Free Life, Issue 16, April 1992
ISSN: 0260 5112

Reflections on the Case of R v Ball & Anr
by Anthony Furlong (that is, by Sean Gabb)

ONE: THE BALL FAMILY

On Monday the 13th of September 1909, an East London estate agent had a letter from from one William Henry Ball with regard to the possible letting of a house. By way of information, Mr Ball wrote:

I have only one in family and am likely to stop at that, I would very much like to come out and see you personally but my hours of business are so that I can't get to your office until it is closed, but should you be calling my way my wife would be very pleased to interview you on the subject or I could get her to call on you.

Had I received his letter in my days as an estate agent, he would have had back a photocopied reply telling him that we did not with rented accommodation. But those were the days before the Increase of Rent and Mortgage Interest (Wartime Restriction) Act 1915. That great structure of folly and injustice which only now we are dismantling was as yet in the future. Rented accommodation was both cheap and plentiful, and was the natural choice for more than 90 per cent of households. Mr Ball evidently had a favourable reply; for, some time during the next month, he with Edith Lilian Ball and their two-year-old daughter Constance Edith moved into a two-bedroom house.

They appear to have been a happy enough family. William worked hard in some menial but respectable occupation. He had never been in trouble with the law. He earned at least enough to pay the rent and rates and the gas bill. Edith was a good mother. There is no recorded history of arguments or any but the most cordial relationship. There remains a letter from William to Edith dated the 19th September 1910. It reads:

My own dearest Edie just a few hasty lines to let you know am alright, hoping you are the same and dear little Con's cold is better, if not, don't hesitate to take her to a doctor if you think it necessary. Finished to late to get home shall be down the usual time tomorrow dearest. Beastly cold up here tonight shall shut up now and go to bed. So good night my angels

From your ever loving Will xxxx

Con's xxxx

But, happy or not, they had come to the attention of the authorities. During the first two weeks in the July of 1910, the Police kept watch on the house, front and back. They recorded - how William and Edith were seen entering and leaving together; how late on the 7th of July, the kitchen light went out, and the front bedroom light shortly after came on; how at 10:15 pm on the 12th of July, the front bedroom light went on and a man and woman were heard talking together for half an hour.

All this was too much to be suffered. At 11:20 pm on the 20th of September 1910, the Police knocked on the front door.

It was opened by Edith in her nightgown. She ran upstairs, the Police following. They recorded how she went into the front bedroom and came out again with William, he doing his trousers up, with his shirt on but no socks. There was a double bed in the room. There was evidence that it had been slept in by two persons. Constance Edith also slept in the room. The second bedroom was unoccupied. It had a bed, but there were no coverings on it. William and Edith were arrested.

Revealed to their neighbours as brother and sister, they stood trial at the Old Bailey, charged with offences under the Punishment of Incest Act 1908. This law - re-enacted as sections 10 and 11 of the Sexual Offences Act 1956, and still in force - provides that any male person who is convicted on indictment of having knowingly had carnal knowledge of his grand-daughter, daughter, sister or mother shall be imprisoned for not more than seven years. Making all relevant changes, women are liable to the same penalty.

William and Edith were both found guilty. He was sentenced to three years' penal servitude, she to six months' imprisonment.

During their trial, a point was raised as to the admissibility of certain evidence. In themselves, the facts recorded by the Police may not have constituted sufficient proof of carnal knowledge. The Prosecution had also to rely on evidence from 1907 and 1908. It was objected - that the additional evidence was of behaviour not at the time illegal; and that, legal or otherwise, evidence of past acts is not generally admissible under English law to prove another act in the same or a similar class. This point was argued at the trial, then in the Court of Appeal, and then in the House of Lords. The arguments found their way into the the Appeal Cases for 1911, and into the Times. That is where I found the facts given above.

I know nothing more than this. It would be interesting to know how much of their sentences William and Edith served; whether they later came quietly together again in another part of the country or Empire; if William fought in the Great War; if he survived; if Constance Edith ever saw her parents again; if she is still alive - she would now be 83. There is so much that the reports could not have included, and so much that they did not include. But enough is known for one fact to be clearly established in my mind - that the Balls were treated with the most shocking severity.

TWO: OUGHT INCEST TO BE A CRIME?

Now, my intention in this Paper is to ask and attempt answers to two questions. I ask first - whether incest ought to be a crime?

I can think of no society past or present in which it has been entirely tolerated. To be sure, it was practised by the Inca and Egyptian royal families. But that is no real exception to the rule. In both empires, the King was believed to be a god. He was not bound by human laws. His incestuous unions were just another of his divine privileges. Again, the definition of incest has differed widely according to time and place. In this country, there was a long and bitter fight before a man could marry his deceased wife's sister - yet this had long since been allowed in other jurisdictions. The Jewish law is notoriously full of prohibitions, but requires a widow to marry her eldest brother-in-law. The Greeks abhorred incest. Everyone knows the story of Oedipus and Jocasta, and how the gods punished them. When to reconcile his Egyptian subjects to a foreign dynasty, Ptolemy II took his sister in marriage, he became variously a monster and a laughing stock throughout the next seventeen centuries of Greek literature. Yet the marriage of half brothers and sisters was allowed in many of the city states. In old China, a man was forbidden to marry anyone bearing his own surname, but could marry the daughter of his maternal uncle. These variations aside, though, it remains that incest has generally been frowned on, where not prohibited.

Now, simply because everyone else has done something is no reason for our following suit. In most countries before the middle of the last century, slavery was anciently established. The British Government still did right to abolish it throughout the Empire and to put down the seaborne trade. Even so, the universality of a custom - especially of a customary restraint - ought to be reason for our not dismissing it unexamined. The various divine sanctions supporting it we may well dismiss. But it is always possible that the custom itself has a usefulness that we have only recently been able to discover. For the prohibition of incest, there are two main likely justifications.

Social

First it may be that marriage within the immediate family is incompatible with an extended social order. Normally when two people marry, a bond is established between their families. To a certain extent, they become a single family. If, as is often the case, the children marry outsiders, further bonds are established. As time goes by and the pattern of relationships grows, it ceases to be a family and becomes a community and eventually a nationality. The individual members may not after a few generations be able to trace exactly how they are related to one another. But the notion is there of a common origin that distinguishes them from outsiders and encourages their co-operation. It was usually believed in the ancient city states that every citizen was somehow related; and this belief was the foundation of their politics. In England until the beginning of the present century, it is likely that nearly everyone was related.

Where marriages between close relations are considered normal, this tendency is checked. The tendency instead is for each family to become a clan, sometimes indifferent to its neighbours - more often hostile to them. Moreover, while in marriages outside the immediate family, the power of a husband over his wife has generally been likened to that of a father over his children, in close marriages, those two powers will not be similar but combined. The existence of a Chief who really is "the father of his people" may prevent the growth of civil institutions.

Genetic

Second, it may be that such marriages tend to produce defective children. We know that at least some characteristics are inherited. The physical nature of every living creature is determined by its genetic constitution. Those genes that manifest themselves are called dominant. Those that are not manifested are called recessive. Both types of gene are passed on to the next generation, where the present balance may largely be confirmed or, in some important degree, reversed. Thus, when both parents have blue eyes, it is more likely that their children will have blue eyes than if one of them has brown eyes. Both, however, will pass on the genes that produce brown eyes. In the parents, these will be recessive. But, in the children, depending on the new balance, they may become dominant; and the off-spring of blue-eyed parents may have brown eyes.

The same is true of genetic mutants. The child of two mongols is more likely to suffer from mongolism than if only one is a mongol. The child of parents who both carry the genes that produce mongolism, but in whom they are recessive, may be a mongol.

When close relations marry, the likelihood that genes that in them are recessive will become dominant in their children is increased.

But far too much can be drawn from this argument. The likelihood of genetic harm is only increased. It does not become a certainty. It may also be that the recessive genes made dominant will be entirely beneficial. It is impossible to say in any individual case that the children will suffer.

It does not appear that Constance Edith suffered from her parentage. We see from William's letter of the 19th September 1910 that she had a cold. He shows no unusual concern at this - none of the anxiety that a loving father might show for a sickly child. He was able to afford medical advice. But his suggestion that Lilian might call a doctor shows that the family had no continual need of one. The chances are that the child grew into a perfectly healthy adult - who may still be drawing her old age pension.

Turning from individual cases to society as a whole, it is even probable that frequent incest will improve the genetic constitution. The number of defective children will not be increased; but the long-term incidence will only be concentrated into a few generations. Assuming that many will die young, or grow up comparatively infertile, there will be a tendency for the inferior strains to be eliminated. This has long been known to animal breeders, who will encourage close mating when they wish to produce a pure and improved stock.

But this is beside the point. The question is whether incest ought to be a crime; and, even granting the two arguments given above, I see no reason why it ought to be. Not every prohibition needs legal support. Many are most effective without it. There is already a sufficiently strong customary prohibition. Incest is so rare among us that the law is either superfluous to prevent it or, as in the case of the Ball family, a positive evil.

It is argued that the law is needed to protect children from sexual abuse from their parents. This is an argument based wholly on ignorance, where not on an intention to deceive. The Punishment of Incest Act was passed in 1908, and criminalises the behaviour of consenting adults. Section 2 reads:

Any female person of or above the age of sixteeen years who with consent permits her grandfather, father, brother, or son to have carnal knowledge of her... shall be liable, at the discretion of the court, to be kept in penal servitude for any term of not less than three years, and not exceeding seven years, or to be imprisoned with or without hard labour for any term not exceeding two years.

The seduction of minors was already a serious offence under sections 4 and 5 of the Criminal Law Amendment Act 1885 - re- enacted in the Sexual Offences Act 1956 - and carried a much higher maximum sentence, of imprisonment for life. Indeed, section 4(3) of the 1908 Act requires that where behaviour that would be an offence under the 1885 Act is proved, a punishment under the earlier Act is to be imposed. The purpose of our law against incest is most emphatically not the protection of children, but the regulation of adults - and this, where no definite and probable violation of rights is involved, is not the proper purpose of law.

THREE: WHY IS IT A CRIME?

This being said, I pass to my second question - why incest is against the law in England.

Before the 1908 Act came into force, it was not illegal. It had once been an offence punishable by the ecclesiastical courts. But the authority of these courts had been greatly weakened at the time of the Reformation, and was more or less abolished after 1641. For very nearly the next 270 years, incestuous unions remained subject to various legal and customary disadvantages, but were not against the law. When Lord Byron debauched his sister, the scandal was such that he fled abroad and stayed there. But he had committed no offence; and the habit of calling for "tough new laws" every time an instance of misbehaviour came to light was then largely unknown. The mere force of public opinion was thought sufficient. This confidence evaporated around the turn of the century.

Fears of National Decline

For some years it had been increasingly evident that our economic lead over other nations was narrowing. Germany and America were both industrialising. France, Japan and Russia were hurrying along behind them. It was possible to construct graphs and extrapolate from present trends to a time when Great Britain would have fallen behind in wealth. In part, this was an inevitable process. A small off-shore island cannot indefinitely remain ahead of great continental empires. But it is undeniable that British economic growth had slowed since the 1870s. Why this had happened remains a mystery. There was no shortage of opportunities or of money to invest. Enterprise was still free. Taxes were still low. But economic liberalism no longer seemed to produce the old almost automatic progress. Not surprisingly, the protectionists and monetary cranks and outright socialists came again to prominence, all offering their ridiculous solutions. They were joined by another movement, equally illiberal, that claimed to look beyond the symptoms of relative decline to its prime cause.

The Eugenic Solution

The word "eugenics" was coined by Sir Francis Galton in 1884. He defined it as "the study of those agencies under social control which may improve or impair the racial qualities of future generations, either physically or mentally".[1] His articles on "Hereditary Talent and Character", in Macmillan's Magazine in 1965, and his book, Hereditary Genius of 1869, had raised the possibility of producing a higher race by selective breeding. The corollary of this was the selective elimination of unhealthy strains. His theories gained a certain credibility from Darwinism, but had little influence before the end of the century. Between then and the Great War, however, they achieved a remarkable dominance.

They seemed both to explain and to offer a solution to the problem of relative decline. The British Race, Galton's followers asserted, was decaying. Mendel's genetic theories had just been discovered. They were held up by the polemicists as strict scientific proof for what even with the frequent invoking of Darwin's name had never been regarded as a coherent body of thought. They pointed to the slums, and showed how the worthless trash living in them was multiplying faster than the middle classes. All the bad recessive genes were being manifested. A.J. Balfour, the Conservative Prime Minister, shared this belief. He feared that the opening up of careers to the more able of the working classes was contributing to the racial decay. They were promoted and then bred more slowly than those whow were left behind.[2]

This belief was more than shared by the socialists. Sidney Webb, whose memory is still revered at every Labour Party gathering, warned that unless there were some "sharp turn", the country would gradually be given over to the faster breeding Irish and Jewish immigrants - and even to the Chinese. What had at all costs to be avoided was "race deterioration, if not race suicide".[3]

But the chief objects of fear were the "feeble-minded". The campaign against them was launched in 1903 by one Dr Robert Reid Rentoul. His Proposed Sterilisation of Certain Mental and Physical Degenerates: An Appeal to Asylum Managers and others, and his Race Culture; or, Race Suicide (A Plea for the Unborn) were read by thousands. He predicted a rapid descent into universal degeneracy unless a vast programme of compulsory sterilisation were adopted. Lepers, epileptics, cancer patients, idiots, imbeciles, cretins, lunatics, homosexuals, tramps, vagrants, habitual criminals, backward, dull and weak-minded children - all must go under the knife.

Not everyone was so extreme: moderate opinion preferred compulsory segregation in special homes. This was the conclusion reached by the Royal Commission on the Care and Control of Feeble-Minded Patients, reporting in 1908. The Commissioners accepted the definition given them by the Royal College of Physicians - that the feeble-minded were those "who might be capable of earning a living under favourable circumstances" but were "incapable from mental defect existing from birth or from an early age (a); of competing on equal terms with their normal fellows; or (b) of managing themselves or their affairs with ordinary prudence".[4] They accepted that feeble-mindedness might in large degree be an hereditary failing. They recommended committal to "institutions where they will be employed and detained".[5] Committal was to be ordered by a Judge or Magistrate, on medical advice.

The Final Report was very well-received. The Webbs urged action:

to prevent the continued procreation of feeble- minded and degenerate stocks at the public expense; by handing the care of the whole of this class, certified and uncertified, to a separate authority for the Mentally Defective... to whom may be given powers of compulsory segregation.[6]

The Liberal Government promised action, but had other matters to attend to. In the meantime, the eugenicists had to be content with an attack on one of the alleged causes of feeble-mindedness.

The Incest Bill

The first serious attempt to make incest into a crime had come before Parliament in 1907. It failed for lack of time. Another attempt was made in 1908. Though a private Bill, it received Government support. The Bishop of Winchester gave it his wholehearted support in the Lords. He produced a mass of what he called "statistics", showing how many children were sexually abused by their parents.[7] But his as yet was an unfashionable approach, and, as mentioned above, was no real justification for the present Bill. His claims were dismissed by the Earl of Crewe, who pointed out that "a large proportion of cases - perhaps 90 per cent or more - can already be dealt with under the Cruelty to Children Acts or under the Criminal Law Amendment Act"[8]. The true spirit of the age spoke through Lord Loreburn, the Lord Chancellor. Incest, he declared, "produces not only moral depravity but also physical deterioration".[9] The purpose of the Bill was to prevent the birth of feeble-minded children by forbidding what was supposed to result automatically in the combination of too many undesirable recessive genes.

The Bill was passed with large majorities and hardly a dissenting voice. The Punishment of Incest Act was sent into the world with a great flourish. When the Judges went on assizes in 1909, they took the most unusual step of advertising the Act's existence. In time, its promoters were edified by the prosecution of William and Lilian Ball.

The Mental Deficiency Bill

But prevention, for all its incidental pleasures, was no substitute for a thorough cure. At last, in 1912, a Mental Deficiency Bill was brought into the Commons by Winston Churchill, the Home Secretary of the day. It delighted the eugenicists. It gave them almost everything short of compulsory sterilisation. It made it a misdemeanour to marry or attempt to marry a mental defective, or to solemnise, procure or connive at such a marriage. It provided for registration and segregation. It went further. The Home Secretary was to have the power to commit any person who fell outside the definition of feeble-mindedness but whose circumstances appeared to warrant his inclusion.

On its first reading, the Bill had only 38 opponents. But the entire Liberal press rose in outrage against it. Josiah Wedgewood, the radical Liberal and ancestor of Tony Benn, denounced as a monstrous violation of rights. The Roman Catholics denounced it as "contrary to Christian morals and elementary human rights".[10] It was withdrawn. But a softened version was carried in 1913. Wedgewood spoke himself hoarse in the Commons against this legislation "for the sake of a scientific creed which in ten years may be discredited".[11] But he spoke in vain. The Bill passed its third reading with only three votes against.

FOUR: THE PRESENT STATE OF THE LAW

This, fortunately, was the high point in Great Britain of the Eugenics Movement. It still had a noble future in other countries - and particularly in Germany. But here, its popularity went into a steep decline, and has not yet recovered. Its propaganda was ignored. The Mental Deficiency Act was never put properly into effect, and it was eventually repealed. Its more disgraceful clauses were not re-enacted in the mental Health Acts 1959 and 1983.

Even so, certain amount of eugenic legislation remains on the statute book. The most glaring instance is the law against incest among consenting adults. This ought to be repealed.

This kind of incest poses no general threat, either social or genetic. It poses less threat to the unborn than the marriage of mongols and haemophiliacs - which is perfectly legal. It is less noticeable than homosexuality, which is now - quite properly - legal. By definition, it is no threat to the young. It was not criminal during the best period of our history. It was first made criminal during one of the worst periods of our history. Its criminality was confirmed in a statute that, though for the most part sensible, also fixes the maximum penalty for bestiality and heterosexual sodomy at imprisonment for life. The sole use of the law against it has been to destroy the lives of those like William and Lilian Ball, who, for all their undoubted eccentricity, were both harmless and respectable.

Will there ever come a time when the Criminal Law of England is reduced to a rational and simple prohibition of fraud and unconsenting force? I doubt it, while the laws are made in Parliament and enforced by Judges paid by the State. Even so, I can hope.

NOTES

1. Quoted, sir Leon Radzinowicz and Roger Hood, A History of English Criminal Law and its Administration from 1750, Stevens & Sons, London, 1977, volume 5, p. 29.

2. The Times, 18th August 1905; quoted, ibid, p. 32.

3. The Decline of the Birth Rate, Fabian Tract 131 (1907), pp 16-17; quoted, ibid.

4. Quoted, ibid, pp 326-7.

5. Quoted, ibid.

6. "Eugenics and the Poor Law; the Minority Report", The Eugenics Review (1910), vol 2, pp 233-41; quoted, ibid, p. 332.

7. House of Lords Debates, 2nd December 1908, col 1407.

8. Ibid, 1411-2.

9. Ibid, 1411.

10. "Mental Deficients and the Community", British Medical Journal (1912), vol 2, pp 450-451; quoted, Radzinowicz and Hood, op. cit., p. 334.

11. Ibid, p. 338.