FORSYTH (Forsythe), ESTHER (Arscott; Barnes), brothel-keeper; b. c. 1842 in England or the Province of Canada; m. first c. 1879 William Arscott; m. secondly c. 1890 Robert T. Barnes; d. 2 July 1902 in London, Ont.
Convicted in 1874 and 1877 of running a house of ill fame, Esther Arscott came to public attention again when she was charged on 24 Sept. 1884 with “keeping a common bawdy house” at 233 Rectory Street in London East, a working-class, industrial suburb of London. The illiterate widow of William Arscott, a London tanner and commercial traveller who had died in 1883, she was reputed to have both “money and backing,” and her brothel was widely understood to be a prosperous operation. Her activities had offended a large number of property owners in the neighbourhood, who had begun to clamour for her imprisonment.
Charles Hutchinson, Middlesex County’s crown attorney, was bent upon making an example of Esther Arscott as part of a campaign to clean up vice in the London area. Charles Lilley, the police magistrate who heard the case, was also the mayor of London East. Engaged at the time in delicate discussions with the City of London over the annexation of London East, he was acutely aware of the need to improve his village’s rough-and-tumble image. He convicted Arscott and slapped the maximum penalty on her: six months of imprisonment at hard labour.
The conviction took place within a wider context of social change in Canada. During the 1880s advocates of “social purity” had begun to demand the eradication of prostitution. These reformers caught the ear of federal legislators, who passed a series of enactments in the 1880s broadening the scope of criminal prohibitions of prostitution. Prosecutions in London peaked between the mid 1870s and late 1880s.
Esther Arscott, however, was a woman of determination who was fully prepared to challenge her conviction. She retained the services of local lawyer Edmund Meredith, a former mayor of London, and his brother Richard Martin Meredith*, a prominent equity lawyer. They were unsuccessful in their first attempt at appealing the conviction, but when they discovered irregularities in the warrant under which Esther Arscott was being held, they secured her discharge on 4 Feb. 1885.
The next morning the triumphant Esther Arscott “packed up her things and took leave of the jail.” But her release was not to be: Lilley and Hutchinson slapped another warrant on her the minute she stepped into the court-house hall. She was “very much amazed at the new turn of affairs,” the London Free Press reported, “and told the officer it was a put up job, but she would soon find a way to settle the question.” By nightfall she was out on bail once more.
Then ensued a legal battle that would last more than two years. Determined to keep her in jail, Lilley and Hutchinson managed to arrest her yet again on 25 March 1885, but succeeded in holding her for only eight days, when her lawyers obtained bail and secured her release. In all Lilley and Hutchinson served a total of four separate warrants on Esther Arscott, all arising out of the 1884 charge.
For her part, Arscott stepped up her defence. She brought in two legal heavyweights from Toronto, Britton Bath Osler and D’Alton McCarthy*, and continued to claim that she was being held unlawfully. Her counsel made ingenious technical arguments in front of the Court of Common Pleas, pleading that under the federal Vagrants Act brothel-keepers could not be convicted unless they had failed to give “a satisfactory account of themselves.” Esther Arscott had never been asked and was therefore unfairly convicted. Judge John Edward Rose was intrigued by the argument, and concluded on 29 May that Arscott had to be released.
Elated with her success, Arscott instructed her lawyers to sue Lilley and Hutchinson for $1,000 damages each on the grounds of false imprisonment. Matthew Crooks Cameron*, chief justice of the Court of Common Pleas, considered Arscott’s claim at the fall assizes in London. After reviewing the evidence of the cat-and-mouse game that had gone on, he concluded that there had been no legal authority to detain Arscott in jail. He awarded $2,430 and costs against Lilley and Hutchinson. From there the case was catapulted into the Court of Queen’s Bench and finally, in May 1887, into the Court of Appeal. Judge Adam Wilson* of Queen’s Bench and the appeal judge, Christopher Salmon Patterson, apparently concerned that things had gone entirely too far, reversed Rose’s ruling and overturned the damage award.
But Esther Arscott had had some premonition of this turn of events. Sensing that she had achieved all that could be obtained through legal channels, she had taken her leave of the country before the Court of Appeal released its decision. She did not, however, view herself as a defeated woman. Sometime in the 1890s, she returned to London, where she lived in relative affluence and respectability with her new husband, Robert T. Barnes, a horse-dealer and breeder.
Esther Forsyth Arscott Barnes died in 1902, bequeathing her considerable estate to a variety of relatives. To Robert Barnes she willed horses, carriages, over $3,000 in cash and mortgages, and two brick houses on Rectory and York streets. To her adopted daughter, Mary Howell, she left a brick house on Van Street. For her sister Jane Pashby in Iowa, she set aside cash, clothing, and her dinner-and tea-set. She saved $500 for Esther Broadbent, a grandniece who was presumably a namesake, and $200 for her brother, London labourer Frederick Forsythe. She was buried beside her first husband in the well-groomed Woodland Cemetery, her very proper tombstone a monument to a resourceful woman who had waged unprecedented legal battles in favour of prostitutes’ rights.
AO, RG 22, ser.321, no.7343; RG 80-8, no.1902-016328. Univ. of Western Ont. Library, Regional Coll. (London, Ont.), Charles Hutchinson papers, 1885–86, petition of William Trace et al.; London, police magistrate, minute-book, 1877–79, B-16, 22 Sept. 1877; Middlesex County, gaol reg., 1872–75, 1883–88. London Advertiser, 29 Sept., 23, 30 Oct. 1884. London Free Press, 27 Dec. 1883; 24–29 Sept. 1884; 6, 9 Feb. 1885; 3 July 1902. Arscott v. Lilley, Ontario Appeal Reports (Toronto), 14 (1887): 283–96 and 297–98 (two decisions). Arscott v. Lilley and Hutchinson and Arscott v. Lilley et al., Ontario Reports (Toronto), 11 (1886): 153–86 and 285–93 respectively. C. B. Backhouse, “Nineteenth-century Canadian prostitution law: reflection of a discriminatory society,” SH, 18 (1985): 387–423; Petticoats and prejudice: women and law in nineteenth-century Canada ([Toronto], 1991). 244–59. Directory, London, 1876/77–1901, J. P. S. McLaren, “Chasing the social evil; moral fervour and the evolution of Canada’s prostitution laws, 1867–1917,” Canadian Journal of Law and Soc. (Calgary), 1 (1986): 125–65. Regina v. Arscott, Ontario Reports, 9 (1885): 541–47. Carolyn Strange, “A profile of prostitutes, their clients and brothel-keepers in Middlesex County, Ontario, 1875–1885” (typescript, 1981; copy in the contributor’s possession). [D. A. (P.) Watt], Moral legislation: a statement prepared for the information of the Senate (Montreal, 1890).