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Title: The constitution violated
An essay
Author: Josephine Elizabeth Grey Butler
Release date: June 15, 2025 [eBook #76301]
Language: English
Original publication: Edinburgh: Edmonston and Douglas, 1871
Credits: Richard Tonsing and the Online Distributed Proofreading Team at https://www.pgdp.net (This book was produced from images made available by the HathiTrust Digital Library.)
*** START OF THE PROJECT GUTENBERG EBOOK THE CONSTITUTION VIOLATED ***
THE
CONSTITUTION VIOLATED
AN ESSAY
BY THE AUTHOR OF
THE “MEMOIR OF JOHN GREY OF DILSTON.”
DEDICATED TO THE WORKING MEN AND WOMEN OF
GREAT BRITAIN.
EDINBURGH
EDMONSTON AND DOUGLAS
1871.
_Edinburgh: Printed by Thomas and Archibald Constable_,
FOR
EDMONSTON AND DOUGLAS.
LONDON HAMILTON, ADAMS, AND CO.
CAMBRIDGE MACMILLAN AND CO.
GLASGOW JAMES MACLEHOSE.
CHAPTER I.
The object of the following Essay is to set forth the unconstitutional
nature of certain recent Acts of the Legislature, and the danger arising
therefrom, with the view of arousing the country to a sense of that
danger.
The enactments called the Contagious Diseases Acts, passed respectively
in 1866, 1868, and 1869, may be regarded from several points of view.
With their medical aspect and the statistical consideration of their
results on public health, it is not my intention to deal. It has been
dwelt on by other people, and in other places, fully.
The moral side of the question is undoubtedly the most important, and
has been dwelt upon by the religious portion of the community, almost to
the exclusion of others, although it may be truly said that it of
necessity includes all others.
There is, however, one aspect of the question which has not been
sufficiently set forth, that is, the constitutional aspect, including
the effect which such legislation must have on our social and moral life
as a nation, from a political point of view.
In almost all the great meetings which have been held throughout the
country on the subject of these Acts, resolutions have been passed
embodying the word “unconstitutional” as characteristic of the Acts,
proving that the mass of the people of England have a strong instinct,
if it be nothing more, of what is constitutional and what is not. Few
terms, it has been said, are more vaguely or loosely employed than this.
It is affirmed with some truth that “Magna Charta is in everybody’s lips
but in nobody’s hands.” The careful study of the Acts in question leads
me to the conclusion that the latter part of this saying must be
eminently true of their framers. We, on the other hand, are charged by
our opponents with ignorance of the words which we use. Yet what Sir
Edward Creasy says[1] is true, that “the English Constitution is
susceptible of a full and accurate explanation;” and though the subject
may require “more investigation than may suit hasty talkers and
superficial thinkers, it is not more than every member of a great and
free State ought gladly to bestow, in order that he may rightly
comprehend and appreciate the polity and the laws in which and by which
he lives, acts, and has his civic being.” He adds, “The student will
recognise and admire in the history, laws, and institutions of England,
certain great leading principles which have existed from the earliest
periods of our nationality down to the present time. These great
primeval and enduring principles are the principles of the English
Constitution; and we are not obliged to learn them from imperfect
evidence or precarious speculations, for they are imperishably recorded
in the Great Charter, and in the charters and statutes connected with
and confirmatory of Magna Carta.” It is these enduring principles which
are violated by the Contagious Diseases Acts. This I shall shortly show,
but before doing so, I shall briefly set forth what these principles
are.
I am convinced that the people of this country are as yet but very
partially awakened to the tremendous issues involved in the controversy
before us, considered as a matter of constitutional rights; therefore it
is that I venture, though I am no lawyer, to bring before them its
extreme importance under that aspect. For this time of agony for the
patriot, who can in any degree foresee the future of that country which
violates the eternal principles of just government, drives many of us,
unlearned though we be, to search the annals of our country, to inquire
into past crises of danger, and the motives and character of the
champions who fought the battles of liberty, with that keenness and
singleness of purpose with which, in the agony of spiritual danger, the
wellnigh shipwrecked soul may search the Scriptures of God, believing
that in them he has eternal life.
On the occasion of an infringement of a constitutional principle by
Parliament itself, a century ago, Lord Chatham, when urging the House of
Lords to retrace this fatal step, used the following words:—“If I had a
doubt upon this matter, I should follow the example set us by the most
reverend bench, with whom I believe it is a maxim, when any doubt in
point of faith arises, or any question of controversy is started, to
appeal at once to the greatest source and evidence of our religion—I
mean the Holy Bible. The Constitution has its political Bible also, by
which, if it be fairly consulted, every political question may and ought
to be determined. Magna Charta, the Petition of Rights, and the Bill of
Rights, form that code which I call the Bible of the English
Constitution.”[2]
In following out this advice of Lord Chatham, it is to these authorities
that I wish to appeal in determining the exact nature of those
principles of the Constitution which I assert have been violated. I am
aware that in doing so I may incur criticism on account of my ignorance
of legal terms and definitions, and on account of unskilfulness in the
arrangement of the matter before me. I shall be satisfied, however, if I
succeed in commending my subject to those to whom I particularly address
myself—I mean the working men and working women of England. Neither they
nor I have had a legal training, but we may alike possess a measure of
that plain English common sense which, to quote again Lord Chatham’s
words, is “the foundation of all our English jurisprudence,”—which
common sense tells us that “no court of justice can have a power
inconsistent with, or paramount to, the known laws of the land, and that
the people, when they choose their representatives, never mean to convey
to them a power of invading the rights or trampling upon the liberties
of those whom they represent.”[3] Further on in this Essay I shall show
that Parliament in making the Contagious Diseases Acts, has invaded and
trampled on the liberties of the people.
I feel sure that those to whom I address myself will, with me, respond
readily to this wholesome maxim, that “in every question in which my
liberty or my property are concerned, I would consult and be determined
by the dictates of common sense.” “I confess,” continues Lord Chatham,
“that I am apt to distrust the refinements of learning, because I have
seen the ablest and most learned men equally liable to deceive
themselves, and to mislead others. The condition of human nature would
be lamentable indeed if nothing less than the greatest learning and
talents which fall to the share of so small a number of men were
sufficient to direct our judgment and conduct. But Providence has taken
better care of our happiness, and given us, in the simplicity of common
sense, a rule for our direction by which we shall never be misled....
The evidence which truth carries with it is superior to all argument; it
neither wants the support nor dreads the opposition of the greatest
abilities.” And to evince this truth of which I speak, I have preferred
to go to the original sources; and in cases where my own words would
have little or no weight, I shall give frequently and copiously the
words of our great constitutional writers,—men, the exercise of whose
learning and abilities was guided and directed by that plain common
sense and reverential regard of principles which are the only safe
guides in legislation. I shall make no apology for an occasional lengthy
quotation, because although the books from which I quote are or may be
in the hands of all persons of the more privileged classes, I am aware
that the working classes have little time or opportunity for consulting
them.
Among the clauses in Magna Charta, there is one upon which the
importance of all the others hinges, and upon which the security
afforded by the others practically depends. This clause, and the
supplementary clause which follows it, have been those whose subject has
formed, more than any other, matter and occasion for the great battles
fought for English liberty and right since the Charter was signed by
King John.
They are the 39th and 40th clauses of King John’s Charter, and the 29th
of that of King Henry III., and are as follows:—
39. Nullus liber homo capiatur, vel imprisonetur, aut utlagetur, aut
exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super
eum mittemus, nisi per legale judicium parium suorum, vel per legem
terræ. 40. Nulli vendemus, nulli negabimus, aut differemus rectum aut
justitiam.
39. NO FREEMAN SHALL BE TAKEN, OR IMPRISONED, OR DISSEISED, OR OUTLAWED,
OR BANISHED, OR ANYWAYS DESTROYED, NOR WILL WE PASS UPON HIM, NOR WILL
WE SEND UPON HIM, UNLESS BY THE LAWFUL JUDGMENT OF HIS PEERS, OR BY THE
LAW OF THE LAND. 40. WE WILL SELL TO NO MAN, WE WILL NOT DENY TO ANY MAN
EITHER JUSTICE OR RIGHT.
“These clauses are the crowning glories of the great charter.”[4] Mr.
Hallam calls them its “essential clauses,”[5] being those which “protect
the personal liberty and property of all freemen, by giving security
from arbitrary imprisonment and spoliation.”[6] The same high authority
observes that these words of the Great Charter, “interpreted by any
honest court of law, convey an ample security for the two main rights of
civil society.” The principles of this clause of the Great Charter,
which, if we look backwards, are lost in antiquity, were subsequently
confirmed and elucidated by statutes and charters of the reign of Henry
III. and Edward III. entitled “confirmationes cartarum.” “The famous
writ of Habeas Corpus was framed in conformity with the spirit of this
clause; that writ, rendered more actively remedial by the statute of
Charles II., but founded upon the broad basis of Magna Charta, is the
principal bulwark of English liberty, and if ever temporary
circumstances, or the doubtful plea of necessity, shall lead men to look
on its denial with apathy, the most distinguishing characteristic of our
constitution will be effaced.”[7]
De Lolme[8] speaks thus of these famous clauses, articles, or chapters:
“They insured that no subject should ever, in any shape whatever, be
molested in person or effects otherwise than by the judgment of his
peers, and according to the law of the land; an article so important
that it may be said to comprehend the whole end and design of political
societies.” The same powerful testimony is given by Guizot and De
Tocqueville.
It is precisely these very clauses, thus endearingly eulogized by these
great historians and lawyers of various nations, which stand violated
both in letter and in principle by the Contagious Diseases Acts.
Lord Coke[9] speaks thus of these clauses: “These are all words which
should be carefully read over and over again, for as the gold-finer will
not out of the dust, shreds, or shreds of gold let passe the least crum
in respect of the excellency of the metal, so ought not the learned
reader to passe any syllable of this law, in respect of the excellency
of the matter.” “As to the extent of the applicability of the words of
the charter,” Sir Edward Creasy says,[10] “it is not a piece of class
legislation, but its benefits apply to all the freemen of the land, and
all freemen are equal in the eye of this great law.” Lord Chatham speaks
thus of the temper in which this great article of the charter was
contended for by the Barons: “They did not confine it to themselves
alone, but delivered it as a common blessing to the whole people; they
did not say, these are the rights of the great Barons, or these are the
rights of the great Prelates; no, but they said, in the simple Latin of
the times, ‘Nullus liber Homo,’ and provided as carefully for the
meanest subject as for the greatest. These are uncouth words, and sound
but poorly in the ears of scholars, neither are they addressed to the
criticism of scholars, but to the hearts of free men. These three words,
‘Nullus liber Homo,’ have a meaning which interests us all; they deserve
to be remembered, they deserve to be inculcated on our minds, they are
worth all the classics.” The words “Nullus liber Homo” did not
originally apply to every person living in England, because a portion of
the population was in a state of serfdom or villeinage, which was in
effect slavery. But this slavery was in the course of time abolished,
and the seeds of enfranchisement were sown by the Great Charter itself.
“For[11] through the action of its principles, the villeins (or slaves)
were constantly rising into freemen, so that the ultimate effect of this
clause was to give and to guarantee full protection for person and
property to every human being who breathes English air.” In a future
portion of this Essay it will be shown how by the enactments which we
deplore a portion of the community is continually passing from the state
of freemen into the state of slavery, and is in effect by the action of
the Contagious Diseases Acts put, with respect to the operation of the
law, out of the pale of those denominated by the words “liber Homo.”
The universal opinion of lawyers and statesmen among ourselves, that
these clauses of Magna Charta are the most important bulwark of our
liberties, is confirmed by the opinion of a celebrated foreign
writer,[12] who concludes a great work on the penal process of England,
Scotland, and the United States with these words: “It will be more and
more acknowledged how true it is that the penal legislation of a nation
is the keystone of that nation’s public law.” Another great writer on
Laws says:[13] “It is upon the excellence of the criminal laws that
chiefly the liberty of the citizen depends;” and these words, “the
liberty of the citizen,” what do they not include? Of the same nature
are the weighty words of Lieber[14] on “the value of a well-guarded
penal trial as an element of constitutional liberty.” Sir Edward Creasy,
in his sketch of the general administration of justice in England,
begins with “the criminal law as first in constitutional
importance.”[15] I might multiply quotations from great lawyers, showing
an universal concurrence in the opinion that without justice in our
criminal code we cannot possess that freedom which is one of the
conditions of virtue in a nation.
It is not requisite for my purpose to enter into a critical examination
of each of the words and phrases of the great clause of Magna Charta
referred to, nor even to quote a selection of comments on these words
and phrases from the voluminous writings which exist on the subject.
There are two expressions, however, as to the meaning of which I shall
make a few remarks. The first, as bearing more particularly on the
subject in hand, viz., the phrase “aut aliquo modo destruatur;” and the
second, the words “per legem terræ,” in order that I may with respect to
these words correct a misunderstanding which may arise in the mind of a
reader who reads them without the light of those subsequent comments and
charters which have elucidated Magna Charta.
As to the phrase “aut aliquo modo destruatur” (nor be in any way
destroyed), Blackstone, as well as other writers, gives a very wide
signification to this word “destroy;” and, in general terms, it may be
said that they agree in understanding that these words of the charter
sternly forbid any proceeding on the body of an accused person unless
after trial by jury. If it were possible for me here to describe in
detail that proceeding which the Acts in question sanction upon the body
of a person suspected or accused, and who has been condemned without any
jury trial, no further words of mine would be needed to convince my
readers that this proceeding comes within the scope of that word
“destroy.” Since, however, the subject is one of which we are not
permitted to speak, as society in its present state seems to judge an
indecent action to be less reprehensible than the plain words which
would be needful to bring that indecent action to light and to judgment,
I refrain from doing more here than asserting, and I do assert in the
strongest manner, that the compulsory proceedings upon the unwilling
bodies of the subjects of these Acts are in the strictest sense of the
term a “destruction,” as indicated in the words of Magna Charta, and
elucidated by subsequent comments and events. The hardest part of this
whole controversy is, that the deepest wrong among all these wrongs is
unmentionable.
Amongst many curious instances in the history of England of the jealous
spirit in which the slightest bodily injury which had been inflicted
without a jury trial was resented by the people of England, I will
merely quote one, the case of Sir John Coventry:—
Sir John Coventry had animadverted upon some of the King’s immoralities.
The King (Charles II.) declared that if he did not punish this it would
grow a fashion to talk so, and sent some of his guards to watch in the
streets where Sir John lodged, and to leave some mark upon his person
which should teach him not to talk at that rate for the future. The rest
I give in the quaint words of Bishop Burnet:[16] “Sands and Obrian and
some others went thither, and as Coventry was going home they drew about
him. He stood up to the wall, and snatched the flambeau out of his
servant’s hand, and with that in the one hand and his sword in the other
he defended himself so well that he got more credit by it than by all
the actions of his life. He wounded some of them, but they cut his nose
to the bone, to teach him to remember what respect he owed to the King;
and so they left him, and went back to the Duke of Monmouth’s, where
Obrian’s arm was dressed. That matter was executed by orders from the
Duke of Monmouth, for which he was severely censured, because he lived
there in professions of friendship with Coventry. Coventry had his nose
so well needled up that the scar was scarce ever to be discovered. This
put the House of Commons in a furious uproar; they passed a bill of
banishment against the actors of it, and put a clause in it that it
should not be in the King’s power to pardon them.”
De Lolme quotes this as an instance of the habit of the English people
of falling back upon their ancient constitutional rights, remarking that
in this instance, although the nose in question was so skilfully needled
up as to be as good as ever, still it was deemed by Parliament that the
clause “nor in any ways destroyed” of Magna Charta had been violated by
this assault, and adds that the whole of Parliament was thrown into such
a passion of fury on the occasion that nothing would serve them but the
passing of the Act which stands upon the statute-books till this day as
the Coventry Act.
If I dared to bring before my readers the comparison of this slight
personal insult offered to one man on one occasion, with those day by
day perpetrated under the Acts which we oppose, whose effects are to
degrade and harden, the nation would not rest content with repeal, but
would require an Act to be framed which would render such outrages
impossible in the future.[17]
Without needlessly multiplying quotations from our great constitutional
writers, it is impossible to convey to my readers an adequate notion of
the strictness of meaning of the one expression in Magna Charta, “We
will destroy no one unless by the judgment of his peers.” It is by the
great lawyers interpreted to mean, that no proceeding of any kind
whatever of a compulsory nature shall be permitted on the person of any
one except after jury trial. Blackstone and others, to make the matter
more plain, minutely define those cases in which alone this prohibition
of Magna Charta may be set aside, viz., in the punishment of young
children by their parents, and of pupils by their masters, but even
these were to be kept within the bounds of decency and humanity. I will
only quote the words of De Lolme[18] on this subject: “Thus it was made
one of the articles of Magna Charta, that the executive power should
_not touch the person of the subject_, but in consequence of a judgment
passed upon him by his peers; and so great was afterwards the general
union in maintaining this law, that the trial by jury which so
effectually secures the subject against all the attempts of power, even
against such as may be made under the sanction of the judicial
authority, hath been preserved till this day.”
In the clause of Magna Charta upon which we have dwelt, the words “per
legem terræ” (by the law of the land) occur. It might be supposed by a
rude observer that these words were meant to refer to something other
than jury trial, and might perhaps include such Acts of Parliament as
those which we reprobate. The various clauses of Magna Charta have been
elucidated and confirmed no less by subsequent enactments than by famous
State trials, which have led to clear definitions of what is to be
understood by each clause. Among the clauses thus confirmed and
elucidated, there has been none more dwelt upon than that “per legem
terræ,” the contentions over which single expression have served again
and again to confirm and securely establish the liberties of England. It
is in the light of these subsequent confirmations and elucidations that
great lawyers are enabled to read the words of Magna Charta with a
certainty which could never have otherwise been attached to them, and to
give to every word of that charter a fulness of meaning which cannot be
gathered from a study of the text alone.
The words “per legem terræ” have been taken by some not to refer to jury
trial. Attempts have been made to justify illegal proceedings by this
interpretation. This has given rise to arguments and enactments, by
means of which the relation of these words to jury trial has been
settled beyond dispute; and it is these arguments and enactments which
as much as anything else have thrown light on the ancient institution of
jury trial, and have confirmed as a lasting and inalienable part of the
Constitution, this ancient “law of the land.” One of the most marked
discussions on this subject, ending with the establishment of the
principle which we have laid down, that jury trial is the one
constitutional form of trial recognised in Magna Charta, took place in
the reign of Charles I., when Judge Selden, at the time of the arrest of
the five members, made a famous speech, pleading for the release of Sir
E. Hampden from illegal imprisonment, on the ground that these words
“per legem terræ,” showed that it was illegal to imprison him by any
other method than that of jury trial.
There were also several Statutes passed in the reign of Edward II. and
III., distinctly interpreting these words to mean, by the old law of
England, viz., by jury trial.[19]
I refer to these arguments regarding this expression “per legem terræ,”
not, as will be evident to my readers, because of the insufficiency of
the words which precede them, “the judgment of his peers,” which in
themselves are sufficient to establish and guard the principle of jury
trial, but because of the danger which has arisen, and might arise
again, of the attempt to substitute in place of jury trial a modern
enactment calling itself the law of the land.
And if one thing more than another were required to confirm the
assertion that Acts of Parliament, which are destructive of jury trial,
are by no means included in the words “per legem terræ,” we find that
confirmation in a passage by Lord Coke, which not only substantiates
what I have said, but also strongly, and almost prophetically, confirms
the soundness of the grounds of our opposition to the particular Acts in
question.
In commenting on the words “per legem terræ” he says:[20] “Against this
ancient and fundamental law,” [meaning thereby the “lex terræ” referred
to in Magna Charta,] “and in the face thereof, I find an Act of
Parliament (11 Hy. VII. cap. 3) made, that as well justices of assize as
justices of peace (without any finding of or presentment of the verdict
of twelve men), upon a bare information for the king before them made,
should have full power and authority by their discretions to mark and
determine all offences and contempts committed or done by any person or
persons against the form, ordinance, and effect of any statute made and
not repealed, etc.... By colour of which Act, shaking this fundamental
law, it is not credible what horrible oppressions and exactions to the
undoing of infinite numbers of people were committed by Sir Richard
Empson, Knt., and Edm. Dudley, being justices of peace, throughout
England, and upon this unjust and injurious act (as commonly in like
cases it falleth out[21]) a new office was created, and they made
masters of the king’s forfeitures. But at the parliament holden in the
first year of Henry VIII., this Act of Henry VII. is recited and made
void and repealed, and the reason thereof is yielded (Hy. VIII. cap. 6),
for that by force of the said Act it was manifestly known that many
sinister and crafty, feigned, and forged informations had been pursued
against divers of the king’s subjects to their great damage and wrongful
vexation. And the ill success thereof, and the fearful ends of these two
oppressors, should deter others from committing the like, and should
admonish parliaments that, instead of this ordinary and precious trial
‘per legem terræ’ they bring not in absolute and partial trials by
discretion.”
CHAPTER II.
I have now set forth the great principles of Magna Charta, and the
foundations of these principles, and have endeavoured to show how much
English liberty depends on the preservation of jury trial. I have now to
show how the Contagious Diseases Acts destroy these bulwarks of English
liberty.
Before doing this, however, it is well to dispose of one vague
objection, which may exist in some people’s minds, to arguments against
these Acts based on the universality of civil rights. There is abroad in
many men’s minds a vague sort of notion that these Acts in question as
they stand on the statute-book of England apply to the army and navy. We
cannot perhaps wonder at this mistake—although it is an extraordinary
mistake—existing more or less in the minds of the partially informed,
when we find that the Member for a learned University, who last session
led the opposition in the House to Mr. Fowler’s motion for the repeal of
the Acts, based his arguments for the existence of these Acts on the
State necessity of having a standing army! Such statements as these are
calculated to lead the public to imagine that these Acts have at least
some connection, more or less remote, with the army and navy, and in
this way to allay those just alarms which must necessarily arise from
the violation of the constitutional rights of civilians.
Now the fact is, that so far from these Acts applying particularly to
the army and navy, they in no way whatsoever apply to the army and navy,
but entirely and exclusively to the civil population. The one and only
connection which they have with the army and navy is, that the districts
to which they apply are those within at least ten miles of which
soldiers or sailors are resident. But in these districts they apply not
to soldiers or sailors, but to the civil population, and to the civil
population only. The word soldier or sailor does not occur in the whole
Act, nor is there anything whatsoever about the army or navy, or any
hint, the most remote, of any connection with the army or navy, except
this, that the whole powers of carrying out the Acts are intrusted to
the Admiralty and War Office. In fact, the jurisdiction of these offices
is by these Acts extended over a large portion of the civil population
of England. Nay, so little has the Act to do with soldiers and sailors,
that it does not even commence with the preamble which, unless it had
distinctly acknowledged its necessary separation from the army and navy,
we should have expected to find in some such words as these,
“Considering the increase of contagious disease in her Majesty’s army
and navy,” and so forth. Over and above the obvious fact, that women, to
whom alone the Act applies, are in no case members of these honourable
services, the Acts do not even profess in any way whatsoever to apply
particularly to those women who associate with soldiers and sailors, but
distinctly leave us to infer the opposite; for in clause 4, Act 1869,
directions are given for procedure against any woman whom the policeman
believes to have been, under certain circumstances, in the company of
_men_ resident within the limits to which the Act applies, the word
“men” being used with no reference to soldiers or sailors at all. In
fact, the idea that the Acts apply in any way to the army or navy is so
absolutely unfounded, that a confutation of it seems almost absurd, and
I would not have mentioned it but for the fallacious notion on this
point promoted apparently by the supporters of the Acts, encouraged by
such statements as that of Dr. Lyon Playfair, already referred to, and
confirmed by the natural practice of most persons of taking their
information as to an Act of Parliament at second hand. In passing I
would, however, point it out as a very grave objection to these Acts,
that they extend the jurisdiction of the Admiralty and War Office over
the civil population, and that they intrust to these offices such
extensive and arbitrary powers as we shall shortly see that they do.[22]
The Contagious Diseases Acts, as now in force, consist essentially of
the following clauses:—
Act 1869, Clause 4.—“Where an information on oath is laid before a
justice by a superintendent of police[23] charging to the effect that
the informant has good cause to believe that a woman, therein named, is
a common prostitute, and either is resident within the limits of any
place to which this Act applies, or, being resident within ten miles of
these limits, or, having no settled place of abode, has within fourteen
days before the laying of the information either been within those
limits for the purpose of prostitution, or been outside of those limits
for the purpose of prostitution in the company of men resident within
those limits, the justice may, if he thinks fit, issue a notice thereof
addressed to such woman, which notice the superintendent of police shall
cause to be served on her.”
Act 1866, Clause 16.—“In either of the following cases, namely,”—
“If the woman on whom such a notice is served appears herself, or by
some person on her behalf, at the time and place appointed in the
notice, or at some other time and place appointed by adjournment;”—
“If she does not so appear, and it is shown (on oath) to the justice
present that the notice was served on her a reasonable time before the
time appointed for her appearance, or that reasonable notice of such
adjournment was given to her (as the case may be);”—
“The justice present, on oath being made before him substantiating the
matter of the information to his satisfaction, may, if he thinks fit,
order that the woman be subject to a periodical medical examination by
the visiting surgeon for any period not exceeding one year, for the
purpose of ascertaining at the time of each such examination whether she
is affected with a contagious disease; and thereupon she shall be
subject to such a periodical medical examination, and the order shall be
a sufficient warrant for the visiting surgeon to conduct such
examination accordingly.”
We who have combined to oppose this legislation maintain that this Act
is unconstitutional, because it submits a case, in which the result is
to the party concerned of the most enormous consequence, to trial
without jury.
We are well aware, while making this statement, that there is a class of
cases in England which at this present time are tried without a jury.
But these cases are what are called “minor cases.”
Now we maintain that a woman’s honour is a point of very grave
importance to her, and that no State can thrive in which it is not
regarded as a very sacred question. And we maintain that a case which is
to decide as to the question of a woman’s honour is by no means, nor by
any stretch of language or imagination, capable of being called a “minor
case.”
We therefore maintain that this law, which places the determination of
the fact as to a woman’s honour solely in the hands of a single justice
of the peace, is as great an infringement of constitutional right, as if
the determination of the fact as to whether a man were guilty of murder
or not were placed in the hands of a single justice of the peace.
We maintain absolutely that to deprive of jury trial a woman whose
honour is the subject in question, is a breach of the English
Constitution, as fundamentally expressed in that clause of Magna Charta
of which we have already pointed out the importance, “We will condemn no
one except by the judgment of his peers.”
The decision of the question as to her honour would itself, even if
followed by no legal consequences, be a sufficiently grave one to
warrant what I say. But let it be observed that when the case is decided
against the woman, the deprivation of her honour is followed
immediately, under these Acts, by those consequences which are
especially indicated in Magna Charta as the consequences which shall
ensue to no one except after trial by jury. She is not only subjected to
that ordeal which we assert comes distinctly within the application of
the words “or anyways destroyed;” but in order to the carrying out of
that ordeal, she is, by the Act, both outlawed and imprisoned in the
strict meaning of these terms as used in Magna Charta. She is in fact
deprived of her liberties for the space of a year. She is outlawed
practically during that period, inasmuch as she is handed over to the
irresponsible action of surgeons, at whose simple fiat she may be
detained and imprisoned without even any order before a justice, or any
oath or affidavit taken.[24] Her whole liberty is curtailed, inasmuch as
she is liable to be summoned for a repetition of this ordeal at whatever
times and as frequently as the surgeon thinks fit; and the entire
curtailment which this is of her liberty must be evident from the fact
that she is bound to appear, subject to the penalty of imprisonment,
with or without hard labour. I have already said that these Acts
virtually introduce a species of villeinage or slavery. I use the word
not sentimentally, but in the strictest legal sense. Slavery means that
condition in which an individual is not master of his own person, and
the condition of slavery is defined in Magna Charta by the omission of
all slaves from the rights which that charter grants to every one else.
There could be no more complete, galling, and oppressive deprivation of
freedom than this which takes place under these Acts. Nor is this
compulsory attendance and detention wherever and whenever a surgeon may
please the only loss of freedom to which the woman is subject, and which
strictly comes under the meaning of the words of Magna Charta, “We will
imprison no one;” but she is liable further by the clauses of the Act
already quoted in the note to be detained in an hospital for a period so
long as nine months, which is distinctly defined under the Acts (see
clause 26) as an imprisonment, and is such that she may (see clause 28,
quoted below), if she quits it without being discharged by the surgeon,
be “taken into custody, without warrant, by any constable.” These are
obvious contraventions of the chapter of Magna Charta referred to, and
no argument is required to establish that they are such. It is not
however out of place to show here an additional consequence which
follows directly on a woman’s being registered as a “public woman,” and
which is by no means the least of the evils which accrue to her under
this Act. Indeed, if we consider it rightly, it is virtually that which
comprehends all the rest. According to Magna Charta it is not only a
subject’s person and liberty which shall be untouched, except after
trial by jury, but also his property. Now the honour of a poor woman is
often her only capital; it is in fact that part of her property the loss
of which is ruin to her; the action of this law therefore, by
registering a woman as infamous, deprives her of that character the
possession of which is, in almost every case, her only hope of getting a
living in an honest situation, and the loss of which, whether it be lost
rightly or wrongly, is ruinous to her whole future life.
Now here let me once more quote the clause of Magna Charta, and let the
reader place for himself these abominable Acts in the full light which
is flashed upon them by that sun which enlightens English liberty:—
“No freeman shall be taken, or imprisoned, or disseised, or outlawed, or
banished, or anyways destroyed, nor will we pass upon him, nor will we
send upon him, unless by the lawful judgment of his peers, or by the law
of the land. We will sell to no man, we will not deny to any man either
justice or right.”
I am perfectly aware that the absolute letter of this law has been for a
period of years set aside in what are called “minor cases.” With the
propriety of thus infringing on Magna Charta, even in respect to these
minor cases, many great lawyers have had grave doubts, and have strongly
expressed an opinion that these cases should not be multiplied or
extended. Into this question of minor cases I shall enter more fully in
a subsequent chapter; but this case is one of an utterly different
nature, involving both the determination of a grave question and the
infliction of a grave and prolonged penalty.
It is quite possible for a law to be contrary to law. I maintain that
this law is contrary to law when judged by the higher laws of the
Constitution, to which every law in England is as amenable, and by which
it may be as distinctly put on its trial, as we who live in England are
amenable to, and may be tried by, the laws of the land.
“There are,” says Chancellor Fortescue[25] “laws made which may better
deserve to be called corruptions than laws.” We maintain that this law
is a corruption, and we unhesitatingly call on all men and women in
England to unite in putting it down; in doing which we have a very great
cause to contend for—the cause of the liberties of England, concerning
which I will quote what Blackstone says. “It is therefore,”[26] says he,
speaking of trial by jury, “upon the whole a duty which every man owes
to his country, his friends, his posterity, and himself, to maintain to
the utmost of his power this valuable constitution in all its rights, to
restore it to its ancient dignity, if at all impaired by the different
value of property, or otherwise deviated from its first institution, to
amend it wherever it is defective; and, above all, to guard with the
most jealous circumspection against the introduction of new and
arbitrary methods of trial, which, under a variety of plausible
pretences, may in time imperceptibly undermine this best preservative of
English liberty.”
In answer to our objections to these Acts, it is utter vanity and folly
in any one to plead that they apply only to women who are prostitutes.
Can it be supposed that there is any man in England so foolish as to
think that the safeguards of English law exist for the sake of the
guilty only? They exist for the sake of the innocent, who may be falsely
accused, as well to protect them when accused, as to lessen the chances
of unjust accusation. And can it be supposed that we are so blind as
ever to be able to fancy that it is impossible that under this law an
innocent woman may be accused? On the contrary, it is obvious that the
question of a woman’s honour is one in which mistaken accusations are
peculiarly likely to occur. Hence it has been that in Christian
countries the sin of unchastity in a woman has ceased to be treated as
legally criminal, on account, first, of the extreme facility of false
accusation; and, second, of the impossibility of rebutting such
accusation; and in more enlightened communities the injustice has been
apparent of treating penally this offence in one sex only. Yet here we
see a law which, regardless of these considerations, not only takes in
hand the determination as to the question of a woman’s honour, but in
the process of that determination deprives her of the only legal
safeguard which it bestows in all other cases. We ought never to forget
that the very fact of jury trial, which guards the person wrongfully
accused, does itself also, more than any other thing, prevent such wrong
accusations. Nor is there any accusation so likely to be multiplied by
the absence of trial by jury as that against a woman’s honour.
In presence of this enormity of these Acts, it is perhaps almost trivial
to indicate a minor point in which they are unjust. It will be
satisfactory to do so, however, in order to show the spirit of utter
contempt for woman’s honour which this law evinces. The Acts require no
witness against the woman except the policeman, who, though he must
substantiate on oath his own belief that the woman is a prostitute, is
not bound to produce on oath what the grounds of that belief are.[27] If
the justice of peace is satisfied with this substantiation, the woman is
condemned under the Act.
The honour therefore of every woman is by this law intrusted to two men,
the one the justice of the peace, and the other the policeman, who, let
it be carefully observed, is expressly hired by Government for the one
stated object of detecting unchaste women.
“Every new tribunal,” says Blackstone,[28] “erected for the decision of
facts without the intervention of a jury (whether composed of justices
of the peace, commissioners of the revenue, judges of a court of
conscience, or any other standing magistrates), is a step towards
establishing aristocracy, the most oppressive of absolute governments.”
We are very near being threatened by this absolutism which Blackstone
dreads, when we find that this newly erected tribunal is placed under
the control of the least responsible, most arbitrary, and most
aristocratic portion of all the public offices, and which have ere this
been made the tool of dangerous attacks on English liberty.
In answer to all this argument we shall be undoubtedly met with the
assurance that the decisions of this tribunal will seldom err, because
honourable and upright men will be employed; that the case is always one
of such perfect clearness, that it needs only ordinary judgment and care
to decide it, and that the chances of false accusation are thus reduced
to a minimum.[29]
Concerning this argument, it is well to relate that a gentleman once,
who despised what in his estimation were unnecessary precisenesses of
mathematics, on being asked to find the centre of a circle, after having
inspected it for some time said, touching with his finger a spot near
the middle, “Sir, I think it will be _about there_.” Although he may
have come within a minimum of the centre by this tentative method, his
answer would by no means satisfy the geometrician, and in the same way
it cannot satisfy the lover of justice that justice should probably be
_about there_—for “Laws,” as Junius says extremely well, “are intended
not to trust to what men will do, but to guard against what they may
do.”
Thus we see that the statement which is so often made and accepted, that
this law applies only to prostitutes, is calculated to exercise a
blinding and confusing influence over the public mind in this question.
It seems to be commonly assumed _that some decisive tribunal which has
gone before has already decided that weighty matter_ which marks out
those who are fit subjects for the operation of this law; and at other
times it is assumed with an astonishing boldness on the part of some,
and credulity on the part of others, either that these persons have by
some overt act of their own marked themselves out as immoral characters,
or that society possesses some divining-rod by which this class of
persons may be distinctly marked off from all others. So far is this
from being the case, that every one who has any experience of the poorer
classes, knows that there is no point where an exact line of distinction
can be drawn, but that there is every degree of shade between the
absolutely virtuous woman and the most degraded and evident harlot. It
is well known that among the poor there are thousands who are unchaste,
but whom it would be an act of supreme injustice and cruelty to bring
under this Act. And therefore this infringement of the constitutional
forms of justice is the more to be deplored, considering the difficulty
and delicacy of the distinctions of the cases which are by this Act
brought before such a wretchedly inadequate tribunal as a single justice
of peace, enlightened, not by facts, but by the credulity of a single
policeman. Justices of the peace may be very good men, but they are not
fitted to be sole and irresponsible judges in such a solemn and
difficult question as they are required to determine under these Acts,
nor, if we remember aright, has the generally received opinion of the
character of “justice’s justice” been usually such as to warrant the
unlimited trust which we are here called on to repose in them. Even
admitting that in every instance they are the best men in the world,
they have, if we remember aright what the generally received opinion is,
been believed to be rather liable to err,[30] and in any event we must
still remember that sentence, already quoted, of Junius, that laws are
intended not to trust to what justices of the peace will do, but to
guard against what they may do. It is perfectly true certainly that
jurymen are fallible as well as justices of the peace; nay, that they
may be even in individual instances corrupt and foolish, but that form
of trial, with its publicity, and all its other accompaniments, which
has been found in other cases to be the necessary “bulwark of northern
liberty,” is not likely to be capable of being so easily dispensed with
in this.[31]
For the rich and great there may be little danger in dispensing with
jury trial in this particular instance. As there are classes in society
whose position and wealth place them above any chance of being
erroneously accused of theft, so there are classes whose position,
wealth, and surroundings place the women belonging to them equally above
any chance of being erroneously accused of being prostitutes. To this
fact we may probably trace the apathy and indifference of so many of the
upper classes to the passing of the Contagious Diseases Acts, and the
urbanity with which they assure us that our fears are ungrounded, and
that the operation of these Acts can seldom err. Again we must quote the
words of Junius, “Laws are intended not to trust to what men will do,
but to guard against what they may do.” But, at the same time, can we
accept the assurance that the action of the officials who carry out
these Acts will never be in error? We certainly cannot. Ladies who ride
in their carriages through the streets at night are in little danger of
being molested. But what of working women? What of the daughters,
sisters, wives of working men, out, it may be on an errand of mercy, at
night? And what, most of all, of that girl whose father, mother, friends
are dead, or far away, who is struggling hard, in a hard world, to live
uprightly and justly by the work of her own hands,—is she in no danger
from this law? Lonely, and friendless, and poor, is she in no danger of
a false accusation from malice or from error? especially since one
clause of the Act particularly marks out _homeless_ girls as just
subjects for its operation. And what has she, if accused, to rely on,
under God, except that of which this law has deprived her, the appeal to
be tried “by God and my country; by which she is understood to claim to
be tried by a jury, and to have all the judicial means of defence to
which the law entitles her.”[32]
It is not only however in the Act itself alone that we see this
indifference to the interests of the poor and unprotected, whose sole
protection under heaven lies in that constitution which this law has
violated, but also in the carrying out of this law by the Admiralty and
War Office, whom in place of the constitution which it has set aside it
has erected as the guardians of the weak. By these tender guardians of
the weak, we find an actual crusade carried on under this law against
the defenceless. In the directions given at various times to the police,
they are enjoined to keep an especial eye on the proceedings of
“milliners, shop-girls, domestic servants,” and the like. It is said
that the beginning of strife is like the letting out of water: it is a
process which when once begun is not so easily ended, and those who have
opened the torrent cannot say where it will cease. The same may justly
be said of the admission of a false principle into legislation, and when
the barriers of constitutional safeguards are swept away by Act of
Parliament, nothing can stem the torrent of illegality and oppression
which will follow. I shall speak more hereafter of this consequence, and
only here observe how the overreaching of a bad law is the necessary
consequence of its own vicious nature.
We have been reproached for making this question a class question. We
accept the reproach, if reproach it be; because we say that it is a
question for the poor rather than for the rich. It was not we who
initiated this distinction, but the majority of the upper classes soon
taught us that they considered it no question of theirs. They told us
plainly that the subject was too unpleasant to be treated as one of
public interest; but while with this plea they endeavoured to silence
us, we found that they generally lent the weight of their influence, and
not always apathetically or ignorantly, to the promotion of this
legislation. To them this legislation involved no present and immediate
diminution of freedom for themselves, and they seem to have been blindly
ignorant or selfishly forgetful that their children and children’s
children would be, as well as the children of the poor, inheritors of
the fatal consequences of violated liberties; and that the chains which
they now weave for others will in time entangle themselves. But when we
turned to the humbler classes, we found that they knew that it _is_ a
question for them; and that they, more intelligent in this than the
upper classes, knew that it was also a question for this whole country
of England, whose political liberty depends on the preservation of the
rights of all. “The trial by jury ever has been,” says Blackstone,[33]
“and I trust ever will be, looked upon as the glory of the English
law.... It is the most transcendent privilege that any subject can
enjoy, or wish for, that he cannot be affected in his property, his
liberty, or his person, but by the unanimous consent of twelve of his
neighbours and equals,—a constitution that I may venture to affirm has,
under Providence, secured the just liberties of this nation for a long
succession of ages. And a celebrated French writer, who concludes that
because Rome, Sparta, and Carthage have lost their liberties, therefore
those of England in time must perish, should have recollected that Rome,
Sparta, and Carthage, at the time when their liberties were lost, were
strangers to the trial by jury.” It is jury trial which, says he,[34]
“preserves in the hands of the people that share which they ought to
have in the administration of public justice, and prevents the
encroachments of the more powerful and wealthy citizens.” “And
particularly,” says he further, “it is a circumstance well worthy of an
Englishman’s observation, that in Sweden, the trial by jury, that
bulwark of northern liberty, which continued in its full vigour so
lately as the middle of the last century, is now fallen into disuse; and
that there, though the regal power is in no country so closely limited,
yet the liberties of the Commons are extinguished, and the government is
degenerated into a mere aristocracy.”[35]
I cannot therefore but regard the present as a crisis as great as any
crisis through which this nation has ever passed. This country was once
called on to decide whether it would permit the King for his
satisfaction to override this 39th clause of Magna Charta, and it
decided most emphatically that he should not. It is now called on to
decide whether it will permit Parliament itself, for the sake of the
lusts of certain men, to override this same clause.
It remains for the people of England to decide this question, and a very
solemn choice is given to you, my countrymen, at this moment: Are these
men to have protection in their vices, or will you retain your
liberties?
If any of my readers, then, came to the consideration of this matter
with the idea that there might be something to be said for this law
medically, and that though there might be something undefinedly wrong in
it, yet it embodied at least a benevolent intention, let him then
remember that he has at the next election to answer this question for
himself and his country: Shall we have liberty in lust, or shall we have
political freedom? We cannot retain both.
CHAPTER III.
I now come to consider the cases to which I have before alluded, in
which jury trial is dispensed with. I shall show their nature, and how
the question to be decided under the Acts of Parliament to which we
object in no way belongs to that class of questions.
Having one day explained the nature of these Acts to a working man, he
appeared incredulous of their existence, and exclaimed, “This is
impossible! for every one in England can claim jury trial.” I believe
these words to be expressive of a misapprehension under which a vast
number of people labour. This man’s impression was true regarding the
great principles of English legislation. But a supporter of these Acts
might have answered him by telling him that there are in England a
number of cases which are decided by a single justice of the peace
without the intervention of a jury. Although perhaps at first silenced
by this objection, and deprived, therefore, apparently of an obvious
argument for claiming jury trial for the women accused under the Acts,
our friend, after more mature consideration, could not fail to come to
the conclusion that, after all, there was surely some injustice here. In
this conclusion he would be correct.
In a free country like England, where people are brought up under just
institutions, and where the principles of constitutional freedom are so
universally diffused in men’s talk, actions, and thoughts that they form
the underlying spirit of all political and social intercourse, the
instincts of a person whose information is no more definite than that
which he gets from the whole tone of society are in the main trustworthy
and just. These instincts are more to be relied upon than legal
subtleties, and are themselves the surest argument for the justice of
our constitution. It is the inextinguishable instinct of freedom,
strengthened and nourished by the existence of free institutions, which
constitutes the guarantee of the continuance of a nation’s liberty; and
for this reason it is that I would give much weight to those widely
diffused and instinctive ideas, which we find even more amongst the
unlettered than amongst those classes whose sense of freedom has been
blunted by the enjoyment of exclusive and unquestioned privileges.
Under such circumstances as these, when an unjust law comes to be argued
and discussed by the public generally, we find that a strong and
universally diffused appreciation of its unjust character may, and
indeed always does, exceed the power of definitely pointing out the
exact part of the constitution which may be violated by such a law. It
is one of the blessings of this free country of England, that a
perception of freedom and of constitutional right is more widely
diffused than it is possible for a knowledge of the statute-book to be,
or of the particular laws which form the basis of that constitution. The
many are thus, by the education which they receive from our free
institutions, made the protectors of our liberties, which could never be
protected or maintained if in the hands only of the few and learned.[36]
In accordance with this principle, we find the general instinctive
perception of the violation of liberty by the Contagious Diseases Acts
giving vent to itself throughout the country in varied forms, and in
none more so than in an expression, which has not been unfrequently
used, that these Acts are in some way or other opposed to the Habeas
Corpus Act.
These Acts as they stand do not directly violate the Habeas Corpus Act,
yet this very objection to them, erroneous though it may be in the
absolute letter, serves only the more to show how widely diffused is a
true appreciation of the spirit in which the Habeas Corpus Act is
conceived. The spirit of the Habeas Corpus Act, equally with that of
Magna Charta, of which it is an elucidation, is violated by these Acts.
It is said in Magna Charta, “no man shall be taken, or imprisoned, or be
disseised of his freehold or liberties or free customs, or be outlawed
or exiled, or any-otherwise destroyed; nor will we pass upon him, nor
condemn him, but by the lawful judgment of his peers, or by the law of
the land. We will sell to no man, we will not deny or defer to any man,
either justice or right.”[37]
Now let us just again view these sentences as strictly applying to the
administration of justice, in order to show the truth of the instinctive
feeling above alluded to of so many people, that the Habeas Corpus Act
is in some way violated.
“These words contain,” says Sir E. Creasy,[38] “two great principles,
the one that persons accused of criminal offences shall have free jury,”
of which I have already spoken, “the other, that no man shall be
imprisoned on mere general grounds of suspicion at the discretion or
caprice of the executive power; but that imprisonment shall be only
inflicted as the result of a legal trial and sentence, or for the
purpose of keeping in safe custody, when necessary, an accused person on
a definite charge, until he can be tried on that charge. This latter
principle is familiar to us by the term of an Englishman’s right to a
Habeas Corpus, if his personal liberty be interfered with.”
The Habeas Corpus Act, therefore, as thus explained, is distinctly one
of the great constitutional safeguards against arbitrary imprisonment or
detention; and this is undoubtedly the correct as well as the generally
diffused understanding of the principle of that Act. And the readiness
with which people refer to the Contagious Diseases Acts as a violation
of the principle of the Habeas Corpus Act, is a proof of the fact that
these Acts involve proceedings of a character unconstitutionally
arbitrary.
The fact is, that to imprison a person without any trial at all would be
a _literal_ violation of the Habeas Corpus Act, but that to imprison a
person after an inadequate trial by an inadequate tribunal, as these
Contagious Diseases Acts do, is a violation of the _principle_ of the
Habeas Corpus Act just as great. Lord Coke says, “it is the worst
oppression that is done by colour of justice;” and we cannot regard that
imprisonment as any less a violation of the Habeas Corpus Act, because
it is inflicted after a mode of trial, the adoption of which Parliament
had no right, in this instance, to legalize.
We therefore see that the legalizing of a tribunal so inadequate for the
judgment of cases so grave as those which under these Acts are submitted
to a justice of the peace, is in effect a suspension by Parliament of
the Habeas Corpus Act, and not, as is usual, for a limited time, but for
an indefinite time, and for a vast proportion of Her Majesty’s subjects.
“The suspension of the Habeas Corpus Act is an expedient which,” says
Blackstone,[39] “ought only to be tried in cases of extreme emergency,
for a short and limited time; and in these the nation parts with its
liberty for a while in order to preserve it for ever.”
Now it may be asked, How can we so strongly condemn this particular Act
to which we are opposed, while at the same time there actually exists a
set of cases, viz., those included in the category of summary
proceedings, in which jury trial is equally dispensed with? Why, if the
country be generally content to admit these, should it not be content to
admit the Contagious Diseases Acts? I will proceed to answer this
question.
I find in Blackstone an account of these innovations upon our ancient
constitutional principles, which are known by the name of summary
proceedings. These summary proceedings are of comparatively recent
origin, and I cannot give the reader a better account of them, and of
what they involve, than by quoting what Blackstone says on the
subject:[40]—
“By a _summary_ proceeding, I mean such as is directed by several Acts
of Parliament (for the common law is a stranger to it, unless in the
case of contempts) for the conviction of offenders, and the inflicting
of certain penalties created by those Acts of Parliament. In these there
is no intervention of a jury, but the party accused is acquitted or
condemned by the suffrage of such person only as the statute has
appointed for his judge,—an institution designed professedly for the
greater ease of the subject, by doing him speedy justice, and by not
harassing the freeholders with frequent and troublesome attendances to
try every minute offence. But it has of late been so far extended as, if
a check be not timely given, to threaten the disuse of our admirable and
truly English trial by jury, unless only in capital cases; for—
“I. Of this summary nature are all trials of offences and frauds
contrary to the laws of the _excise_ and other branches of the
_revenue_, which are to be inquired into and determined by the
commissioners of the respective departments, or by justices of the peace
in the country; officers who are all of them appointed and removable at
the discretion of the Crown. And although such convictions are
absolutely necessary for the due collection of the public money, and are
a species of mercy to the delinquents, who would be ruined by the
expense and delay of frequent prosecutions by action or indictment, and
though such has usually been the conduct of the commissioners as seldom
(if ever) to afford just grounds to complain of oppression; yet, when we
again consider the various and almost innumerable branches of this
revenue which may be in their turns the subjects of fraud, or at least
complaints of fraud, and of course the objects of this _summary_ and
arbitrary jurisdiction, we shall find that the power of these officers
of the Crown over the property of the people is increased to a very
formidable height.
“II. Another branch of summary proceedings is that before _justices of
the peace_, in order to inflict divers petty pecuniary mulcts and
corporal penalties denounced by Act of Parliament for many disorderly
offences, such as common swearing, drunkenness, vagrancy, idleness, and
a vast variety of others, for which I must refer the student to the
justice-books formerly cited, and which used to be formerly punished by
the verdict of a jury in the court-leet. This change in the
administration of justice hath however had some mischievous effects,
as—_1st_, The almost entire disuse and contempt of the court-leet and
sheriff’s tourn, the King’s antient courts of common law, formerly much
revered and respected. _2nd_, The burthensome increase of the business
of a justice of the peace, which discourages so many gentlemen of rank
and character from acting in the commission, from an apprehension that
the duty of their office would take up too much of that time which they
are unwilling to spare from the necessary concerns of their families,
the improvement of their understandings, and their engagements in other
services of the public; though, if _all_ gentlemen of fortune had it
both in their power and inclinations to act in this capacity, the
business of a justice of the peace would be more divided, and fall the
less heavy upon individuals, which would remove what in the present
scarcity of magistrates is really an objection so formidable that the
country is greatly obliged to any gentleman of figure who will undertake
to perform that duty, which in consequence of his rank in life he owes
more peculiarly to his country. However, this backwardness to act as
magistrates arising greatly from this increase of summary jurisdiction
is productive of, _3rd_, a third mischief, which is, that this trust,
when slighted by gentlemen, falls of course into the hands of those who
are not so, but the mere tools of office. And then the extensive power
of a justice of the peace, which even in the hands of men of honour is
highly formidable, will be prostituted to mean and scandalous purposes,
to the low ends of selfish ambition, avarice, or personal resentment.
And from these ill consequences we may collect the prudent foresight of
our antient lawgivers, who suffered neither the property nor the
punishment of the subject to be determined by the opinion of any one or
two men; and we may also observe the necessity of not deviating any
farther from our antient constitution by ordaining new penalties to be
inflicted upon summary convictions.”
Sir Edward Creasy also says on the same subject:—“The great
constitutional principle of trial by jury is still respected so far as
regards all trials for offences of a graver character, and which subject
the person convicted of them to a severe punishment.... But for upwards
of a century the practice of exposing persons charged with minor
offences to trial and summary conviction by one or two justices of the
peace has been growing more and more prevalent. It is deeply to be
regretted that so little heed has been paid to the sage and humane
warnings of Blackstone against the increase of this system of
withdrawing criminal charges from the consideration of a jury.”
Mr. Justice Warren also speaks, in his abridgment and adaptation of
Blackstone’s _Commentaries_, respecting the “inroads on the noble
institution of trial by jury which are now being made incessantly;” and
he gives the following warning: “It is a matter of supreme concern to
the country to beware of shaking the confidence of the humble classes of
society in the administration of criminal justice, by infringing their
right to an open and formal trial by their equals, and placing them at
the mercy of, it may be, an interested and prejudiced superior.”[41]
While merely noticing in passing the grave objections of these eminent
lawyers to the whole principle and operation of these summary
convictions, I must draw the particular attention of my readers to the
only excuse which these lawyers allow for this encroachment on
constitutional rights, namely, the beneficent intention of expediting
justice in minor cases for the sake of the individuals concerned.
From the quotations which I have given above, there are three main facts
which may be gathered, viz., _first_, that summary proceedings _are_ an
encroachment on liberty, and lamented over by great lawyers; _second_,
that they are only for the sake of minor offences, and only in that case
tolerable; and _third_, that there are cases which, when included in
this category, render these encroachments especially dangerous, and by
no manner of means, or by any argument, to be tolerated.
Let the reader observe carefully these facts, and let him also observe
the reason why these summary convictions are allowed in minor cases—that
is, for the sake of the accused, and to expedite justice,—and let him
ask himself whether he finds this motive inspiring these Acts. The
answer to his inquiry will be, that the summary proceedings under these
Acts are _not_ for the sake of the accused, and that they are _not_ to
expedite justice.
If then for these intentions the danger is tolerated of the infringement
of the strict letter of Magna Charta in these minor cases, can its
principle therefore be permitted to be destroyed in a case where no such
intentions are manifest?
In the first place, the summary character of these Acts in question does
not exist for the sake of the accused, as may be best shown by a
provision under them called the “voluntary submission,” by means of
which a woman is made to criminate herself; whereas, in all other cases,
care is taken in any examination of an accused person to give him every
advantage, and not to entangle him; and he is especially advised by the
person who examines him, to say or sign nothing to criminate himself.
The woman, on the contrary, is subjected to no examination, but is
simply requested to criminate herself; and the War Office and Admiralty
order that if she do not immediately criminate herself, she is to be
threatened with penal consequences for her refusal.[42]
In the second case, the proceedings under these Acts are not for the
sake of expediting the matter, and of reinstating the accused in
society, because this Act condemns her to be, or sign herself, a
bondwoman for a given period not exceeding a year.[43]
Therefore the motives for making the proceedings under this Act summary
cannot be said to exist.
With respect to the voluntary submission, the illegal threat of the
Admiralty and War Office (already quoted in the Note, p. 58), backed up
by police intimidation, has induced many women, friendless and ignorant
of the laws, to sign that submission in preference to the alternative of
going before a magistrate. To this they have been induced by the hope
that their registration may thus be kept a secret, and by ignorance of
the real nature of the personal outrage to which they submit themselves,
the real nature of which it is impossible for any one to gather from the
form of the voluntary submission, or, indeed, from anything in the
Acts.[44] But if it be alleged, as an inference from this, that the
ordeal incurred is not so detestable a thing to a woman as we have
represented it to be, if they choose rather to submit to it voluntarily
than to have their case tried openly before a magistrate, choosing a
certainty of subjection to this ordeal rather than publicity, with the
chance of escape; and if on that account it be alleged in objection to
our argument, that the publicity of open jury trial would be still more
painful for these women to encounter than the publicity of proceedings
before a single magistrate, we would reply that, though the alternative
just mentioned is offered by the Act, it is by no means the alternative
which has been presented to the minds of the women, to whom the lie
circulated by the authority of the Admiralty and War Office has
distinctly declared that the going before a magistrate is only a public
method of the same submission; and to whose mind that going before the
magistrate is presented, not as a trial, but as a proceeding involving
direct penal consequences. If it be represented to her that it is penal
to refuse to sign the voluntary submission, how can she refuse? Yet even
though no such representation were made, and though every woman had
direct access to the Act of Parliament thus falsely interpreted to her,
it must still be apparent to every honest mind that it is a gross parody
of justice to offer to any person an insufficient or partial tribunal on
the one hand, and, on the other, the opportunity of self-crimination. It
is a base and unjust alternative, and one which ought not to be
presented to any citizen of a free country, and, above all, ought not to
be presented in this particular case; for, be it observed, such an
alternative and such a method of trial gives rise to a recklessness of
accusation peculiarly grievous in the present instance, and which the
system in question seems framed precisely to foster,—a recklessness of
accusation which would be checked by the fear which must affect even the
most powerful individual in the State, and make him reflect well before
he too lightly brings any accusation against any one, knowing that the
truth of that accusation must be examined and decided by twelve
indifferent men, not appointed till the hour of trial, and not by those
paid officials accustomed to believe in the truth of such accusations,
and knowing that when once the fact of a false accusation is ascertained
the law must of course redress it.
Let me, however, at this point remind the reader, that my argument
throughout is not a plea to retain these Acts, amended by the
introduction of the safeguard of jury trial; but that my object is to
bring them to the test of this ancient and sacred institution, and to
show that since they cannot exist in conjunction with it, then these
Acts stand condemned thereby, and therefore must be expunged from the
statute-book.
The question now arises, Is this at all a fit case for summary
proceeding, even although those proceedings did in this case expedite
the celerity of justice? Now, if we refer back to the quotations already
made on this subject from Blackstone and others, we shall see that the
abridgment of legal safeguards is only to be permitted in what are
called minor cases. And the cases to be treated under these Acts can by
no means be called minor cases, for reasons which I am about to give.
First, however, let it be carefully observed that there are two distinct
proceedings under the Act, the first being that of which I have treated
in the preceding chapter, namely, the determination as to whether the
woman be a prostitute or not; and the second, with which I am not
dealing here, being that which is directed against the offence created
under the Acts, that offence being the carrying on of the trade of a
prostitute otherwise than under the conditions imposed by Government.
And what we are here particularly objecting to is the making the first
proceeding, above referred to, a summary proceeding, and calling that
case a minor case which relates to the determination as to whether a
woman is immoral or not.
I have thought it right to make this distinction clear because of our
adversaries, who, when we speak of the punishment under these Acts
inflicted on women, affect to suppose that we refer only to the
punishment inflicted on a prostitute for the offence of not obeying the
Government conditions; again here assuming, as they invariably do, that
no one but such a person is ever dealt with by this law; so that I must
again emphatically call the attention of the reader to the fact, that
the first proceeding under the Act is that of determining, by the
arbitrary tribunal which I have before discussed, the fact as to whether
the woman be a prostitute or not. And if the decision of this tribunal
be, as we declare it is and must be, very frequently erroneous, it is a
virtuous woman, and not a prostitute, who is involved in all the
subsequent proceedings; and since these proceedings are entered upon on
account of her resistance to the subsequent action of the law, the
chance of gross injustice is all the greater, since it certainly would
be the virtuous woman, or one who had some modesty left, rather than the
vicious one, who would resist the proceedings.
How then can that be called a minor offence, which involves by no means
a minor penalty? How can that be called a case for the law’s celerity,
which involves a repeated, and it may be a life-long, imprisonment?[45]
How can that be called a minor case which involves not only repeated
imprisonment, but which is based on an accusation of the most subtle,
cruel, and injurious kind, and which, even though disproved, carries
with it its own penalty, whether in the form of loss of character (which
character is often the sole capital of a poor woman), or violation of
the person of that outrageous kind which I have before said it is
impossible to mention?—a violation which is in fact such a proceeding as
is forbidden in the clause of Magna Charta as above quoted, “and neither
will we destroy any one except by the judgment of his peers.” How can
that be regarded as a minor offence which involves a punishment which is
irretrievable, and which is the only irretrievable punishment now
inflicted in this country except that of death? It is in vain for
supporters of the Acts to deny that the violation of the person above
alluded to is punishment of the grossest and most horrible kind for
every creature calling herself a woman: but should anybody urge that
that operation of the Act upon the person of a proved prostitute is
neither horrible nor irretrievable, once more let him remember that
these Acts deal with women generally, not with prostitutes exclusively,
and that the first process under the Acts is the arbitrary determination
as to the character of the woman suspected, which determination amounts
in fact to an arbitrary selection of such women as the policeman and
magistrate deem proper to bring under the Acts.
In the case of minor offences, it is the proportionately trifling nature
of the punishment inflicted which justifies, if anything can justify,
the summary conviction; but such conviction cannot possibly in a free
country be tolerated, when the punishment consequent on conviction is of
a nature so injurious and irretrievable. If you deprive a man of life
the punishment is irretrievable; no recompense can be made for it if
erroneously inflicted; hence in some countries punishment by death is on
this very account prohibited when the evidence is only circumstantial.
What then shall we say of a case in which an irretrievable punishment is
inflicted where there is no necessary circumstantial evidence at all,
but suspicion only, and further, without the safeguard, which the law
applies in the other case, of jury trial? What can atone to an innocent
woman for the destruction of her character brought about by mere
suspicion, and without the chance of the time-honoured appeal “to God
and my country”? What can atone to her for the personal outrage, which
is made so light of by some doctors, but which, whether inflicted by any
private villain, or by a gentleman paid by the Government to inflict it,
must bring to every decent woman unmitigated shame and anguish?
We therefore claim that these cases under this Act shall not be
summarily treated as minor cases, because, to put it in the light least
favourable to ourselves, no one can prove to us that an innocent woman
may not be accused under it; and, being so accused, if punished
wrongfully, she suffers more than any other person punished wrongfully
would suffer; she has therefore more than any other person the right to
all the safeguards which the law can offer. Now, it is admitted by all
great lawyers that the supreme safeguard against accused persons being
wrongfully punished, or against persons being wrongfully accused, is the
existence of jury trial. These women, therefore, more than any other
accused people, are entitled to have every legal safeguard. It is more
tyrannical than can for a moment be endured in England, that such cases
should be classed among minor cases, and be treated in the same summary
fashion as when a little boy breaks windows.[46]
Now, let us ask our opponents “why, in this matter, did they dispense
with jury trial?” The only answer they could consistently give is, that
if jury trial were adopted, the law would not work. If that be so, these
Acts are condemned by that very admission. This test distinguishes at
once the case in question from all other summary cases, for let us
suppose any other case whatsoever now comprised among these treated as
summary cases to be brought to the test of jury trial, and let us see
what would be the result. It would be, not the miscarriage of the case,
but the clearer and fuller establishment of justice, though at the
expense of delay and the employment of greater machinery than the case
might perhaps demand. The real reason for dispensing with this
safeguard, however, we suspect is to be found in the same selfishness
which prompted the Act, namely, that tender regard for the erring man,
which is by no means extended to either the frail or the virtuous woman.
It would manifestly be inconvenient and disagreeable to those gentlemen,
for whose fancied benefit these Acts were made, to be constantly in
danger of being called up as witnesses to the immoral character of
certain of their female companions, it may be of some poor girl
introduced by their seduction into the paths of vice. For it is,
unfortunately for them, a maxim of the Common Law of England, “that the
best evidence the nature of the case will admit of shall always be
required, if possible to be had,”[47] and the best and most direct
evidence in this case is very clearly that of the male accomplices of
the woman whose character is the subject of trial; wherefore we do not
need to go far to discover why it is that the persons who have found it
needful to make these Acts should have also found it needful to do away
with jury trial.
For these reasons, and for others to be cited in an ensuing chapter, I
can characterize these Acts as nothing other than a gross violation of
the constitution of this country, whereby there is established a sort of
press-gang, by which women are pressed into the ranks of vice by the
shortest and easiest way possible, for the purpose of serving the lusts
of men.
CHAPTER IV.
I shall in this chapter give some portion of a debate which took place
in the House of Lords in the year 1736, on the occasion of an attempt
made by Parliament to introduce a Bill against smugglers, so curiously
similar in many points to the Acts under discussion, that I feel it not
needful to apologize for introducing it in the present Essay, but call
the reader’s attention very markedly to the whole matter, inasmuch as
many arguments which have been advanced, on one side or the other, in
the discussion in which we are now engaged, were also advanced there, as
the reader can himself see.
The case in point was a Bill to prevent smuggling, which enacted that
upon information being given upon oath before any one justice of the
peace, that any persons, to the number of three or more, were assembled
to assist in smuggling, the justice might commit them without bail.
The great similarity, even of the very wording of this to the Acts which
we oppose, will be evident to the reader; but I must point out that this
bill against smugglers was infinitely less grievous than these Acts,
inasmuch as the action of the justice of the peace here extended only to
unbailable imprisonment before trial, which was followed in time by the
regular course of jury trial.
Lord Hardwicke, whose speech I quote, was a Crown lawyer in the reign of
George II., and while calling attention to every part of his speech, I
would particularly mark the concluding paragraph, where every word, with
the mere alteration of a name, is directly applicable to the question we
are now discussing.
_Cobbett’s Parliamentary History; debate in the Lords on the Bill to
Prevent Smuggling, May 15, 1736._—“The said bill was read for the first
and second time in the House of Lords, without any considerable debate,
but when it came before the committee several amendments were offered by
Lord Hardwicke.”
Lord Hardwicke spoke as follows:—“I am very sensible how much it
concerns us to prevent that fraudulent and pernicious practice called
smuggling, and therefore I shall always be ready to join in such
measures as I think proper and necessary for that purpose; but at the
same time, my Lords, do not let us forget the freedom of our
constitution, and the liberties and privileges of the people; for
slavery would be a price too dear even for the most absolute security
against smuggling.[48] For this reason, when any method is proposed, or
bill brought in for the detecting, apprehending, and punishing persons
guilty of such practices, we ought to consider, not only whether it will
be effectual for the benefit proposed, but whether it will be consistent
with our constitution and the liberties of the people. By all those who
understand anything of our constitution, it must be granted that one of
the greatest barriers for the liberties of the people is that
fundamental maxim of the laws of this kingdom by which every man is
presumed innocent till the contrary appears by some overt act of his
own, and that act must be such an one as is itself unlawful, and of such
a nature that no innocent construction can be put upon it. We have in
our laws no such thing as a crime by implication, nor do we pretend to
judge of or to punish a man for mere thinking. From hence it is that a
wicked or malicious intention can never with us be proved by
witnesses.[49] Facts only are admitted to be proved, and the judge and
jury are from these facts to determine with what intention they were
committed. But no judge or jury can ever by our laws suppose, much less
determine, that an action in itself innocent or indifferent was attended
with a criminal intention. Such an inference, my Lords, was never made
in a free country, nor under any government but that of a tyrannical as
well as arbitrary administration.
“Another security for our liberties is that no subject can be imprisoned
unless some felonious and high crime be sworn against him. If the crime
be not in itself atrocious, or if there be only a suspicion sworn
against him, the greatest hardship he can be subjected to is to be
imprisoned till he gives bail for his appearance; and if any of our
inferior judges refuse to admit him to bail, the subject so aggrieved
may immediately apply by Habeas Corpus to the King’s Courts in
Westminster Hall, the judges of which are now, by the late happy
Revolution, put above being influenced by any authority but that of
justice and the established laws of the country; nor awed by anything
but that of their own reputation or an impeachment in Parliament, which
would certainly be the consequence if they refused justice to any of the
least of his Majesty’s subjects. This, my Lords, with respect to private
persons, is the very foundation-stone of all our liberties, and if we
remove it, if we but knock off a corner, we may very probably overturn
the whole fabrick.
“Having premised these observations upon our constitution, and upon the
nature of a free government, give me leave, my Lords, to apply them to
that clause in this bill which subjects every man[50] in this kingdom to
the danger, nay, I may say certainty, of being committed to prison by a
single justice of peace, without bail or mainprize, and of being
convicted and transported as a smuggler; and all this without his having
been guilty of any one overt act, except that of travelling properly
armed for his defence, and having perhaps the misfortune to meet with
two of his friends upon the road armed in the same manner, in case any
two[51] rogues of informers shall swear that this honest man and his
friends were assembled and armed in order to be aiding and assisting in
the landing of prohibited goods. This regulation, when stripped of that
multiplicity of words which render obscure the meaning and interest of
every clause of an Act of Parliament, really seems to me to be the most
terrible and the most entrapping regulation that was ever proposed in
any country. If it passes into a law, I am sure it will not be quite
safe for any three gentlemen in the kingdom to be seen in company
together. It is evident at first view that this regulation is repugnant
to all the maxims of free government. The wearing of arms is in itself
an act not only innocent but commendable, therefore no presumption of
any crime can thence be inferred.[52] And for this reason the admitting
of witnesses to prove that any three men were so armed for purposes of
smuggling, is admitting witnesses to prove an intention without any one
overt act from whence that intention can possibly be inferred, which is
inconsistent with the freedom of our constitution and with the whole
tenor of the laws of this kingdom. We may as well admit witnesses to
prove that a man got up in the morning and put on his clothes in order
to assist in the running of goods, which I am sure would be ridiculous
as well as pernicious; but this is not all the hardship of the case:
witnesses are not only to be admitted to prove a wicked intention
without an overt act, but they are rewarded for giving such
testimony,[53] which is a most dangerous practice, and a practice we
have lately got too much into; for, in my opinion, no man ought to be
admitted as a witness against any criminal if he be to have any share of
the payment on his conviction;[54] however, in no case is it so
dangerous as it will be in this, because when false witnesses come to
swear a _fact_ upon a man which he is innocent of, he may prove himself
to have been at another place at the time, or he may fall upon many
other ways to make his innocence appear, and to convict the witnesses of
perjury, and this is in all other cases a great guard to the innocent;
but in the present case I should be glad to know how it will be possible
for a man to prove that he had no such _intention_ as is sworn against
him, or to convict a false witness of perjury.[55]
“With respect, my Lords, to the security of the subject against unjust
imprisonment, and with respect to the liberty of applying to the King’s
Courts, these valuable privileges are all to be taken away by this new
regulation; a man is to be imprisoned without so much as a pretence of
his having been guilty of any crime,[56] only because a sorry fellow
perhaps has gone and sworn before a country justice, out of malice, that
he intended to assist in the running of goods; and though by our
constitution every man has a right to insist that in such cases no
extravagant bail shall be exacted from him, yet now he is to be
committed without bail, there to remain till he can force the justice,
and his informer, to bring him to a trial, which I do not see how he can
do, for by this clause the Habeas Corpus Act seems to be repealed.
Again, if the justice should commit iniquity, either in not admitting of
a proper and full vindication, or in delaying to bring the person
accused to trial, where shall such person apply for relief? For the
power of relief is by this clause taken from the King’s Courts, and is
given to the justices of the peace, who are removable at the pleasure of
a minister, and may, most of them, be made the drudging tools of an
administration. _Therefore I must think it very extraordinary, and
inconsistent with the principles of the Revolution, to give such powers
to such judges, or to give them any supreme and uncontrollable power
whatsoever, especially in cases where the liberty of a subject is in
immediate danger._
“_I am very certain that if ever I should see such a law passed I should
look upon our constitution as at an end._ Yet we may have an
administration that would be fond of having such a law passed, perhaps
in order to guard against those treasonable practices which their own
conduct had made frequent, and in such a case would not this very law be
a good precedent for them, would not they have reason to say to
Parliament, ‘What! will you refuse to grant that security against
treasonable practices which your ancestors have granted against the
practice of smuggling?’”
After having proposed important amendments, Lord Hardwicke proceeded to
say:—
“These amendments will, in my opinion, in some measure prevent those
dangers which may accrue with respect to the freedom of our constitution
and the liberty of the subject. I say, my Lords, in some measure, for
neither these amendments, nor any amendments, can prevent its being a
very dangerous bill, and such an one as I am sorry to see necessary in
this once happy kingdom. It is one absolutely repugnant to the whole
tenor of our laws, and inconsistent with the liberty and happiness of
the people.”
“I know, my Lords, it may be said that no man can be absolutely safe
from treachery and perjury; but from all our law-books I defy any man to
suppose a case where it is so easy to cook up a treacherous yet feasible
accusation against one who has not been guilty of the least
imprudence,[57] or so safe to give a false testimony as it will be in
the case I have now laid before you. For in all or most other cases
there must be a confederacy or combination between two or more persons
in order to get a man convicted upon a false information, in which case
the confederates are in danger of being betrayed by one another; and
even the facts themselves, which are falsely sworn against a man, often
furnish him with the means for justifying himself, and condemning his
accusers, whereas in the present case there is no need of any
confederacy, nor can the person accused justify himself by any means I
can think of.[58]
“Upon the whole, my Lords, I must think this bill one of the most severe
and dangerous bills that was ever passed by a British legislature, and
yet notwithstanding its severity I am afraid it will be very far from
answering the end in view. I am afraid that instead of preventing
smuggling it will render hardy and desperate all those who shall
hereafter embark in that pernicious trade, which will make them more
bold and enterprising than they ever were heretofore, and their common
danger will unite them closer together, which will make them more
powerful and formidable.... By such laws we may ruin our constitution,
we may subject ourselves to arbitrary power, but even arbitrary power
itself will not prevent smuggling; for in France, where arbitrary power
has long been established, where the punishment of every sort of
smuggling is death or the galleys, where they keep up a particular sort
of army called _les maltôtiers_ for that very purpose, yet smuggling is
in that kingdom as frequent as in England, and their smugglers are much
more desperate than ours, for they march in little armies, are well
armed and disciplined, and often engage in battle with the custom-house
officers and the maltôtiers. The gentlemen of the French army are indeed
but seldom employed in such exploits; they think it beneath them to
engage against banditti or to hunt after criminals; this low sort of
work they look on as fit only for maltôtiers or sheriffs’-officers, and
though they have a vast number of such in France, yet with them and with
all the other advantages they have, it has never yet been in their power
to prevent smuggling.”[59]
To this speech of Lord Hardwicke a reply was made abounding in
arguments, which bear a remarkable similarity to those used now against
us by our opponents, of which I will merely give the following
specimens:—“I shall readily agree, my Lord,” says the supporter of the
Smuggling Act, in reply to Lord Hardwicke, “that we ought to be
extremely cautious in granting any new powers which may any way encroach
on the constitution or upon the liberties of the people; but if we make
a phantom of every new power and new penalty that may be necessary, and
give a loose to our imaginations by supposing that every such power or
penalty will be made a wrong and unjust use of, and turned towards the
oppression and ruin of the subject, instead of being applied to their
relief and preservation, we shall never grant any new power; for no
power was ever granted, nor can be granted, upon which a fruitful
imagination may not form various scenes of horror and destruction;[60]
nay, no power can be granted but what may truly be made a wrong use of,
but while we have a Parliament subsisting, while we are subjected to no
earthly power but what depends upon Parliament, we have no occasion to
frighten ourselves with such chimeras.”
After he has shown to his own satisfaction, as our opponents also do,
that under the Act complained of no innocent person has anything to
fear, and after he has assured Lord Hardwicke that the justices are not
in the least likely to judge wrongly, for the excellent reason that “if
they did so they would be very derelict in their duty,” he goes on to
use the very same argument which the supporters of the Acts which we
oppose have lately been very fond of using. They affirm that many a raw
girl, trembling on the verge of evil courses, being brought under the
Acts, is terrified back into a virtuous life by the penalties which she
is made to undergo. Similarly Lord Hardwicke’s opponent argues: “A
month’s confinement in a correction-house, with the severest sort of
whipping, would be very far from being an adequate punishment for the
first offence.” But such is his opinion of the reclamatory effects of
this beneficent process that he adds, “A raw country fellow, or a poor
labouring man, may for a reward easily be drawn into assisting in the
running of goods, where no violence is intended, and may for that
purpose be prevailed on to loiter and wait somewhere near the sea
coasts; for such a man a month’s confinement and whipping may be a
sufficient admonition; he may be thereby reclaimed and frightened from
ever engaging again in such practices.”[61]
To these and similar arguments it was replied by Lord Chancellor
Talbot:—“My Lords, we are fully sensible that it is the duty of
Parliament to grant a revenue sufficient for supporting the
Government,[62] and to contrive such methods of collecting the revenue
as may be effectual; but we likewise know that it is the duty of
Parliament to support the constitution, and to preserve the liberties of
the people; therefore, when it begins to appear that the methods
prescribed by Parliament are not effectual for the end intended, nor can
be made so without endangering our constitution, those methods ought not
to be further pursued.... It is always with regret and sorrow, my Lords,
that I form to myself any apprehensions of danger to my native country,
and therefore I shall always avoid it as much as possible; but we have
already created so many new crimes and transgressions, and have
inflicted so many new pains and penalties for preventing those
transgressions, that, in my opinion, the fears of increasing them can in
no case be called phantoms. Our Parliaments have, it is true, been
hitherto able, generally speaking, to give a check to every wrong use of
any power and to bring the offenders to punishment; and while our
Parliament continues to be independent of those who have the exercise of
power,[63] their will, as well as their ability, will continue the same.
But we know the effect of pains and penalties in other countries; we
know that Parliaments, Senates, and Assemblies have, by such means, been
made subservient to the worst and most tyrannical uses that could be
made of power;[64] and if this should ever unfortunately happen to be
our case, our Parliaments will neither be willing nor able to check the
abuse of any power, or to punish the offenders. For this reason, we
ought to be extremely jealous of loading our people with pains and
penalties, and subjecting them to a multitude of penal laws; for
oppression may be easily cloaked under an Act of Parliament, and many
may be punished, under pretence of their having been guilty of some
action made penal by Statute without raising any general murmur among
the people, or giving alarm to those who think _themselves_ in no danger
from any such prosecution. Whereas the least act of oppression without
the pretence of Parliament would raise a general murmur and an universal
alarm, because every man in the kingdom would then think himself in
danger. In this nation no man of common sense would extend his power of
oppression to any great length till he had got a Parliament to his mind;
but when he has got such a Parliament, his power will then be without
control, and by subjecting multitudes of our people to high pains and
penalties, and the danger of being prosecuted upon penal Statute, we may
render it easy for a man to accomplish this end, which, when once
accomplished, may be by the same methods easily preserved as long as he
pleases.
“No law can be proposed, my Lords, for the necessity of which some
reasons may not be urged; even the most tyrannical laws have been made
under the pretence of preventing some real abuse.[65] But all wise
nations have chosen to allow an abuse to escape unpunished rather than
to make such a law as might possibly involve the innocent in the same
punishment with the guilty.
“If ever any such custom or law should come to be established in this
kingdom, the happiness and security of our people would be at an end; we
might expect sometime or other to have informers as numerous and
frequent in our streets, and in all public places, as ever the
‘delatores’ or informers were about Rome under their most tyrannical
emperors.
“I shall grant that if the justice of peace understands the spirit of
our laws, and acts justly, he will examine the informer narrowly as to
circumstances, and will not commit unless the informer gives good
reasons against those he informs against. But the words of this clause
make no such precautions necessary. We are not now to inquire what the
justice _ought_ to do, but what he _may_ do, and I _will_ say that by
these words, an information on oath will be a sufficient authority for
the commitment, and will excuse the justice from all the penalties of
false imprisonment.
“May we not suppose that such informations may be cooked up, and persons
of great credit committed?... Can we say that any subject is safe who
_may_ upon malicious information which he cannot disprove be brought
into such danger? I say, my Lords, on information which he cannot
disprove, for this will always be the case.”
Such were the arguments used for and against the Bill about smuggling.
It is needless to point out to my readers how the same principles have
ever in the history of similar struggles given rise to the same
arguments, and the same actions.
It is impossible not to ask, with a feeling of sorrow and almost of fear
for our country, “Where were the great lawyers in the House of Peers
when this last most unconstitutional law was allowed to pass? How was it
that they, unlike their noble predecessors, sat silent while our
liberties were thus being treacherously invaded? Had they no word for
justice if not for mercy? and had they no power of discernment with
regard to the future woes which such legislation entails?” There was an
appeal once made in the House of Peers, whose echoes seem to have died
away from the chamber of that assembly: I cannot conclude this chapter
better than by quoting it. Echoes which have ceased to be heard inside
that House may be revived perhaps less fruitlessly outside its walls.
In a question which involved (like the Acts against which we contend)
immoral as well as unconstitutional principles, it had been alleged that
“it is justifiable to use every means that God and nature put into our
hands.” To this Lord Chatham replied:[66]—
“I am astonished! shocked! to hear such principles confessed—to hear
them avowed in this House, or in this country, principles equally
unconstitutional, inhuman and unchristian! My Lords, I did not intend to
have encroached again upon your attention, but I cannot repress my
indignation. I feel myself impelled by every duty. My Lords, we are
called upon as members of this House, as Christian men, to protest
against such notions standing near the throne, polluting the ear of
majesty. ‘Means that God and nature put into our hands!’ I know not what
ideas that lord may entertain of God and nature; but I know that such
abominable principles are equally abhorrent to religion and humanity....
These abominable principles, and this more abominable avowal of them,
demand the most decisive indignation. I call upon that right reverend
bench, those holy ministers of the Gospel, and pious pastors of our
Church; I conjure them to join in the holy work, and vindicate the
religion of their God. I appeal to the wisdom and the law of this
learned bench to defend and support the justice of their country. I call
upon the bishops to interpose the unsullied sanctity of their lawn, upon
the learned judges to interpose the purity of their ermine, to save us
from this pollution! I call upon the honour of your Lordships to
reverence the dignity of your ancestors, and to maintain your own. I
call upon the spirit and humanity of my country to vindicate the
national character! I invoke the genius of the constitution.... My
Lords, this awful subject, so important to our honour, our condition,
and our religion, demands the most solemn and effectual inquiry; and I
call upon your Lordships, and the united powers of the State, to examine
it thoroughly and decisively, and to stamp upon it the indelible stigma
of the public abhorrence. And I again implore those holy prelates of our
religion to do away with these iniquities from among us. Let them
perform a lustration! Let them purify this House, and this country, from
this sin!”
But alas! among the hereditary counsellors, the bishops too sit silent
and unmoved when those Acts of 1866 and 1869 were passed, which shook
the bulwarks of our constitution, and which, pronouncing _that_ to be a
necessity which God has pronounced to be deadly sin, exalted its
practice henceforth into an acknowledged and regulated traffic!
CHAPTER V.
The offences which are punished under other Acts of Parliament, or
according to the common law of England, are all either carefully defined
by these Acts and that law, or else they are such as unmistakably to
define themselves. In these Contagious Diseases Acts, on the contrary,
there is no definition of the offence treated under them, nor do we find
that the offence is such as unmistakably to define itself. On the
contrary, we find amongst the advocates of these Acts, no less than in
society generally, the widest possible variety of opinion as to the
definition of a prostitute. This variety of opinion is only indicative
of the immense difficulty of drawing any marked line as to where a woman
may be justly designated by this name. There are many easy-going persons
of the upper classes who know nothing of the poor, and who talk of this
unhappy class as if they were as easily distinguishable as a negro is
from a white man; but those who are acquainted with the poorer classes
of women know the utter fallacy of this method of judgment, and are well
aware that there is amongst this class of sinners as long and varied a
series as in any other. Moreover, those who have looked at all carefully
into the subject observe, that there are in human nature deeply-seated
causes why this indistinctness of definition is maintained rather than
otherwise; for they can scarcely help being conscious that the real
cause of the difficulty which men who legislate on this subject
experience in arriving at a just determination of that degree of guilt
which is to attach this terrible appellation to a woman, arises in a
great measure from the disingenuousness of men, and their disinclination
that their sex should be acknowledged as the accomplices and companions
of the persons thus defined. Until war be waged against impure men, as
well as against impure women, it will remain impossible to define
prostitution. It is amazing to see in this unequal war waged against the
weaker sex only, how men who legislate for their own interests have, as
it were, talked themselves into the notion, if it were possible to do
so, that these poor women are sinners in this respect in their own
single persons, and that male persons have no part whatever in the
offence.
The attempt to define a prostitute is as difficult as it is, in the long
gradation of character among men, from the most virtuous to the most
vicious, to fix on that point at which a man may be stamped as an
immoral character. Nevertheless, if the purification of society were the
object of these laws, instead of the protection of one sex against the
other, it would be possible, for legal purposes, to define prostitution,
although the definition might be arbitrary. But for the purposes of this
law, which does not aim at the purification of society, but only at the
protection of one sex against the other, it is absolutely necessary that
definitions should be avoided, and that the wholesale treatment of the
weaker sex should be carried on in a maze of indefiniteness and
arbitrary selection.
But without inquiry further into the causes which operate to bring about
this result, it is evident that in the absence of any unanimity of
opinion in the public mind as to what constitutes a prostitute, and in
presence of the difficulty of drawing the line which public opinion
admits, these Acts were bound to supply the definition. In the long line
of women, extending from the most virtuous to the most vicious, there
are two points at which the Acts might, if they pleased, have defined
prostitution. Yet they adopt neither of these definitions. In the first
place, they might have said that every woman is to be called a
prostitute under these Acts who voluntarily and by some avowed method
assumes the name; or secondly, that every woman who is found
associating, under any circumstances, with a man, and who cannot produce
a certificate of her marriage with him, is to be called a prostitute
under the Acts.
Public opinion would not sanction the latter definition.
They did not adopt the former definition because it would not have been
sufficiently inclusive for the purposes of the Act.
What they have really done is to leave the word undefined, and
professing to adopt something like the former definition, thus soothing
the alarms of justly-minded persons, they practically adopt the latter
definition, with such arbitrary omissions as shall, in various places
and at various times, seem good to the policeman of the district and the
justice of peace of the district.[67]
The fact, indeed, which constitutes one of the greatest and most
insidious practical abominations in connection with these Acts is the
fact that, in virtue of this non-definition of a prostitute, the
policeman and justice of the peace ride rampant at their pleasure
throughout all that immense border land of humble society which lies
between the confessed prostitute and absolute virtue. All the objections
which we have urged against these Acts, with respect to the
unconstitutional method by which they decide whether a woman is a
prostitute or not, are intensified tenfold by the absence from the Acts
of any definition as to what constitutes prostitution. A justice of the
peace is therefore set to decide the question of fact as to a woman’s
character, in which decision there are involved, as we have shown, most
grievous consequences; and he is set to do this with absolutely no guide
as to what is the thing which he is to determine the woman to be or not
to be,—no guide either from the Acts in question, or from the concurrent
unanimity of society at large. The result of this is, and must be, that
the definition of what a prostitute is, gradually falls into the hands
of the policeman who accuses her; a grievous and lamentable consequence
of this law, which constitutes one of its greatest oppressions, whereby
the whole operation of the law degenerates into a mere hunting in the
streets by policemen of women suspected by them of unchastity.
In all offences which are punished by law, and which are capable of
graduation, as all offences are, there is established a corresponding
graduation of punishment, which usually varies through very wide limits.
Under the Acts in question there is no graduation of punishment,
although, as we have seen, there is such a graduation of offence that
the law cannot even define where the offence begins. The same punishment
is meted to all, and the same treatment. It may be necessary for the
purposes of this Act that it should be so. If it is thus necessary, the
Act again stands condemned by this very admission. Let the reader
compare this law then with any other summary case, for instance that of
petty theft. If a man steal, theft is defined exactly, and the case is
submitted to the justice, who, taking into account all the circumstances
of temptation, of youth, or of poverty, administers a punishment such as
he may think commensurate to the particular offence. Here an offence
distinctly defined is submitted to a justice, who selects a commensurate
punishment.
But in the case under this Act it is exactly the reverse. It is the
punishment alone which is defined, and the definition of the offence is
left to the justice.
There cannot be imagined a greater opportunity for error, nor a more
utter reversal of all the principles of justice.
To submit such a case even to the superior tribunal of twelve selected
men, in whose election the prisoner has a choice, would, under these
circumstances of indefiniteness of charge, by no means secure for the
accused a just decision. How much less is this likely to be secured
under the circumstances of trial prescribed by the Act?
Let the reader observe too, in passing, the oppressive character of the
Act. The Court is to be closed, unless the woman desires it to be open;
it will generally be painful to the justice that such a case should be
tried with open court. The first action of the law then is to bring the
woman into opposition with that judge who not only, alone, is to
determine the facts on which she is tried, but is also alone to define
the offence.[68]
It may be said by some that should the woman be falsely condemned there
is open to her the means of redress prescribed in this as in all similar
Acts of Parliament. She may sue those concerned for damages, which she
will get if she can prove that she has suffered an injury. I will not
refer here to the great difficulties thrown in the way of any woman
under these Acts obtaining any redress by the special clauses which
refer to that redress. But it would seem as if the whole Act had been so
framed that whereas errors under it should be inevitable, redress should
be impossible. For if she be wrongly condemned for being a prostitute,
how can she get redress for that false condemnation for an offence the
definition of which is absolutely and entirely in the hands of the
person who condemned her?
There is an infinite number of minor oppressions and necessary
illegalities growing out of a law which is itself essentially oppressive
and illegal, such as the intimidation by police, bribery, perpetual
spying and eaves-dropping, the investing of the hospital surgeons with
the powers of magistrate and gaoler in one, and illegal orders, in
contravention even of the Acts themselves, issued by the War Office and
the Admiralty, such as we have already referred to. On these, which are
the vicious fruits of a vicious principle, it is not my object here to
dwell; but there is one point to which, before leaving this part of the
subject, I wish to call the reader’s attention.
Clause 28, Act 1866, runs as follows:—“If any woman, subjected by an
order of a justice under this Act to periodical medical examination, at
any time temporarily absents herself in order to avoid submitting
herself to such an examination, on any occasion on which she ought so to
submit herself, or refuses or wilfully neglects to submit herself to
such examination on any such occasion; if any woman authorized by this
Act to be detained in a certified hospital for medical treatment quits
the hospital without being discharged therefrom by the chief medical
officer thereof by writing under his hand (the proof of which shall lie
on the accused); if any woman, authorized by this Act to be detained in
a certified hospital for medical treatment, or any woman being in a
certified hospital for medical treatment, for a contagious disease,
refuses, or wilfully neglects, while in the hospital, to conform to the
regulations thereof approved under this Act, then, and in every such
case, such woman shall be guilty of an offence against this Act, and, on
summary conviction, shall be liable to imprisonment, with or without
hard labour, in the case of a first offence, for any term not exceeding
one month; and, in the case of a second or any subsequent offence, for
any term not exceeding three months; and in the case of the offence of
quitting the hospital without being discharged as aforesaid, the woman
may be taken into custody, without warrant, by any constable.”
Clause 29, Act 1866:—“If any woman is convicted of, and imprisoned for
the offence of absenting herself, or of refusing or neglecting to submit
herself to examination as aforesaid, the order subjecting her to
periodical medical examination shall be in force after, and
notwithstanding her imprisonment, unless the surgeon or other medical
officer of the prison, or a visiting surgeon appointed under this Act,
at the time of her discharge from imprisonment, certifies in writing to
the effect that she is then free from a contagious disease (the proof of
which certificate shall lie on her); and in that case the order
subjecting her to periodical medical examination shall, on her discharge
from imprisonment, cease to operate.”
A woman, then, the question of whose honour has been determined by an
illegal method of trial, and who has in consequence been adjudged to
undergo these examinations, is, if she refuses to submit to them, sent
to prison, at the end of which time, when she is let out of prison, she
may find the order for her examination still in full force. If she again
refuses, she must again go to prison. The option is continually given
her, at each time she comes out, of submitting to this examination
fortnightly for a year, or of again going back to prison.
This part of the law alone is more worthy of the Spanish Inquisition
than of this free country. There never was a law so calculated at every
point to be the vehicle of persecution; and this iniquitous procedure is
calculated to break the spirit of any woman. Such a law, such a mode of
punishment—close imprisonment for life, with the constantly presented
alternative of a brutal personal violation—such a punishment would be
bad enough if following after the most regular, constitutional, and
careful trial and conviction. But what, in God’s name, are we to think
of it when it follows on a conviction such as I have already described?
That these consequences may not be likely to happen is no satisfactory
answer; that it should be possible for them to happen under the laws of
England is itself sufficiently intolerable.
The whole treatment of the women who are brought under the operation of
these Acts has the general character of those inquisitorial proceedings
in the dark ages, which are condemned by all, and the very record of
which is scarcely now permitted to be revived in any publication. There
are cases of the ancient “peines fortes et dures,” which certainly did
not involve bodily pain, which latter was often preferred by the victims
when a choice was given. The inquisitors knew that to wound the
emotional part of a woman’s nature was oftentimes greater torture than
actual laceration.[69]
In concluding this chapter, I cannot avoid this opportunity of saying,
that although we have been as yet objecting to these Acts on account
chiefly of the innocent, or comparatively innocent, yet we must strongly
assert that, in the application of them to the most deeply guilty of the
class of women who come under their operation, they are equally
dangerous and reprehensible. For this reason, that the essential danger,
which we have all along pointed out, lies in the infringement in any
case whatsoever of our ancient mode of justice—an element of license
introduced into our criminal code being the first step towards the
extinction of liberty for all. When Parliament ventured in the last
century to infringe upon the principles of our constitution, in the case
of Mr. Wilkes,[70] Lord Chatham, in deprecating their action, spoke the
following words: “The character of Mr. Wilkes has very improperly been
introduced into this question; for my own part, I consider him merely
and indifferently as an English subject, possessed of certain rights
which the laws have given him. In _his_ person, though he were the
_worst_ of men, _I contend for the safety and security of the best; and
God forbid, my Lords, that there should ever be a power in this country
of measuring the civil rights of the subject by his moral character, or
by any other rule than the fixed law of the land_.”
Yet, strange to say, we find people whose ignorance is inexcusable,
speaking as if some laxity in the matter of criminal justice towards
this particular class of persons were of little consequence, since they
are judged by common consent to be in a manner beyond the pale of
society. Yet surely a man who has murdered some half-dozen persons,
after the manner of William Palmer, may be equally considered as beyond
the pale of society; yet in this case, and all similar cases, every
possible precaution is taken in the matter of his trial; and the
character alike of our laws, and of those who dispense them, is felt to
be involved in the justice of the verdict given. Such are the necessary
and proper advantages granted by our laws to the most deeply dyed
criminal who happens to be of the male sex. It points to something
radically wrong, both in human nature and in our society, when the mere
accident of the criminals being in this case women makes it possible for
such illogical and loose notions to prevail in regard to what legal
justice owes them. Again, let us call the reader’s attention to the
fact, that no amount of heinousness in the nature of those offences with
which any class of the community may be charged, ought to deprive that
class of the due exercise of impartial justice in regard to them. The
creation of a proletariate class in a nation insures that nation
eventually being smothered in its own mud.
I shall conclude this portion of my subject by drawing attention to the
following exhaustive passage from Lieber, descriptive of the
characteristics of a just form of criminal trial, and to the contrast
which it presents in every particular to the laws which we condemn.
“Among the points which characterize,” says Lieber,[71] “a fair, just,
and sound penal trial, according to our advancement in political
civilisation, we would designate the following:—No intimidation before
the trial, or attempts by artifice to induce the prisoner to confess—a
contrivance which protects the citizen even against being placed so
easily in a state of accusation;[72] the fullest possible realization of
that principle, that every man is held innocent until proved to be
otherwise; bail; a total discarding of the principle, that the more
heinous the imputed crime is, the less ought to be the protection of the
prisoner, but, on the contrary, the adoption of the reverse; a distinct
indictment, and the acquaintance of the prisoner with it sufficiently
long before the trial to give him time for preparing the defence; the
accusatorial process, with jury and publicity, therefore an oral trial,
and not a process in writing; counsel or defensors for the prisoner; a
distinct theory of evidence, and no hearsay testimony; a verdict upon
evidence alone, in pronouncing guilty or not guilty; a punishment in
proportion to the offence, and in accordance with common sense and
justice; especially, no punitory imprisonment, which must necessarily
make the prisoner worse than he was when he fell into the hands of
Government,[73] nor cautionary imprisonment before trial, which by
contamination must advance the prisoner in his criminality;[74] that the
punishment adapt itself as much as possible to the crime and criminality
of the offender; that nothing but what the law demands or allows be
inflicted, and that all the law demands be inflicted—no arbitrary
injudicious pardoning,[75] which is a direct interference with the
government by law.”
CHAPTER VI.
Having now pointed out the principal illegalities and oppressions which
are the necessary results of a principle so evil as that which is
embodied in the Acts to which we object, I shall point out two great
evils, which are not yet fully appreciated, even by the most earnest
opponents of the Acts.
It may be stated generally, that the very existence of these laws in any
portion of the country gradually educates the nation to political
incapacity and to moral obliquity, evils so vast and so insidious, as,
by spreading like a plague-spot through the whole nation, to involve it
eventually in national downfall.
I. It is already plainly perceived by many that the educational
influence of these Acts is subversive of individual purity and private
morality. It has not been so plainly perceived, however, that that
influence is equally subversive of the balance of the social system, of
the power of self-government, and of the due relations to each other of
the different parts of the body politic, which hitherto have so largely
contributed to the manliness of our national character.
Sir Edward Creasy says,[76] “It has been our happiness in England to
combine the system of local distribution of power in matters of local
importance with the system of centralization of power in matters of
imperial policy. The practice of our nation for centuries establishes
the rule that except for matters clearly of direct, general, and
imperial interest, centralization is unconstitutional. I dwell on this
topic, because during the last few years the principle of local
self-government has been menaced, if not impaired, and because hasty and
unreflecting observers can hardly have appreciated its national
importance.”
“We shall find,” he continues,[77] “in local self-government infinitely
more force than centralization ever could produce; we shall find that
force to be far more general in its operation; and we shall find it far
more enduring and certain, because it springs, not from the accidental
idiosyncrasy of an individual ruler, but from the national spirit, and
from the ancestral habits of a whole people. We ought to reflect also
upon the pernicious indirect effects which centralization produces in a
State, and on the advantages which we as a nation derive from being
self-trained and locally practised in the discharge of political duties.
We should listen to the testimony of intelligent foreigners, of men who
have lived under a plausible administrative hierarchy, and who speak
feelingly as to its effects.”
The great French statesman De Tocqueville devotes a chapter to the
distinction between centralization in matters of imperial government and
centralization in administrative matters of local interest; and while he
shows the necessity of the first, he demonstrates the pernicious effects
of the second, notwithstanding its specious appearances. It is scarcely
necessary to remark that the Contagious Diseases Acts belong distinctly
to that class of interests the imperial control of which he so strongly
reprobates.
Professor Lieber, a German by birth, but an American by adoption, after
describing the principles of the American Congress and the English
Parliament as free institutions, expressly states, “Yet the
self-government of our country, or of England, could be considered by us
as little more than oil floating on the surface of the water, did it
consist only in Congress and the State Legislatures with us (_i.e._, in
America), or in Parliament in England. Self-government, to be of a
penetrative character, requires the institutional self-government of the
country or district; it requires that everything which, without general
inconvenience, can be left to the circle to which it belongs, be thus
left to its own management.”
The great German historian Niebuhr also, “before whose eyes the annals
and institutions of almost every State, ancient or modern, were made to
shed light on the annals and institutions of the rest,”—who was a man of
practice and action, had spent part of his manhood in England, and had
been employed in arduous undertakings for his own government, in a book
on the _Internal Administration of Great Britain_,—edited in order, if
possible, to induce his own government to reorganize their State on
better principles, maintains that “British liberty depends at least as
much on the local self-appliances of local governments, as it does upon
Parliament.”
“The self-governing spirit of our English system of internal polity,”
says Bowyer,[78] “explains that remarkable willingness to obey and even
assist the law, which has sometimes excited the admiration of foreigners
in this country.”
M. Le Cour, the Chef-Administratif of the medical Police, who are
employed in Paris for carrying out the laws in that city which are
similar to the Contagious Diseases Acts, gives it as his opinion that
“such Acts will work admirably in England, and will succeed there better
than in Paris, owing to the habits of obedience to the law which are so
universally diffused among the people of England,” oblivious that the
very system he wishes to graft upon this spirit of obedience, is that
which contains in itself the seeds of the ruin of that spirit of
obedience, and which strikes at the foundation of that very habit of
local self-government to which this spirit of obedience is so
universally referred. Such is the political blindness of those who
legislate for the necessity of prostitution.
In a treatise by the French statesman Count Montalembert, “On the
Political Future of England,” he forcibly exposes the evils which must
ensue if there is any increase of administrative centralization, of what
he terms “bureaucratie,” in this country; especially he shows its
debasing influence on a nation in another matter, and warns us to
reflect on the fact that the multiplication of salaried functionaries
creates a population of place-hunters. “An universal thirst,” says he,
“after salaried public employments is the worst of social maladies. It
infects the whole body politic with a venal and servile humour, which by
no means excludes, even amongst those who may be the best paid, the
spirit of faction and anarchy. It creates a crowd of hungry suitors,
capable of every excess to satisfy their longings, and fit instruments
for every base purpose as soon as they are in place.”
These general statements will commend themselves to the minds of most
English readers. Let them then be fully awake to the dangers which are
now undermining these cherished advantages of the system under which we
have, up till this time, lived. It is strange that while a strong stand
is being made at present for the freer exercise of local
self-government, and a practical step in that direction has been taken
in the extension of the municipal franchise, a step, and a most fatal
step, has been taken in the opposite direction by the Government through
the Acts which we condemn; and we have already had exhibited to us as
its fruits a sight unwonted in England—the sight of an energetic
Corporation completely set aside and overruled within the limits of its
own jurisdiction by the creatures of imperial tyranny, the very lowest
of the executive. This is the first-fruits in England of the great and
fatal effort at centralization begun by these Acts.
Are the people of England willing, not only that personal liberty should
be interfered with, but that corporate freedom should be threatened with
annihilation by these Acts of Parliament, which unless repealed will no
doubt be followed by others equally aggressive in principle, against
which we shall then have no argument,—a result which will, as we may
learn from the words which we have just quoted, be little less than the
destruction of the stability of English political life?
And this centralization, which is so much to be deprecated, is
introduced by these Acts with those very concomitants which render its
effect most ruinous, namely, the establishment of a system of police
espionage, a thing utterly foreign and abhorrent to all the instincts
and convictions of Englishmen. On the subject of that constant and
minute police interference which these laws have introduced so
extensively into England, I may quote the weighty words of Lieber.
“It is necessary,” says he, in his _Political Ethics_, “to have seen
nations who have been forced for centuries to submit to constant and
minute police interference, in order to have any conception of the
degree to which manly action, self-dependence, resoluteness, and
inventiveness of proper means can be eradicated from a whole community.
On this account systematic interference weakens governments instead of
strengthening them; for in times of danger, when popular energy is
necessary, when every man must do his duty, or the State is lost, men
having forgotten how to act, look listlessly to the Government, not to
themselves. The victories of Napoleon over the many States east and
south of France were in a great measure owing to this natural course of
things.”
These words need no comment. But can we imagine any form of the evil
here indicated more fit than that embodied in these Acts to produce the
pernicious consequences described, and to lead men back from manhood
into babyhood? For by these Acts it is implied that men are so
helplessly the slaves of their own lower passions, so little in
possession of the gift of self-control, so little fit to manage
themselves, that they must needs be protected from the consequences of
their own unnecessary vice, and taught to lean upon this great
centralizing and protecting authority, in place of on the help of God
and a resolute and manly will.
II. The Contagious Diseases Acts have been introduced into England
solely on medical grounds. They have been argued for by their supporters
solely on medical grounds, and every attempt has been continually made
to restrict the question to a medical question. Yet the continual of the
opposition on the immoral tendencies of the Acts, and the generally
evinced and growing determination of the country at large to treat the
question as a moral question, and to regard that question as of primary
importance in comparison with the medical question—all this has brought
about a very significant change in the position taken up by the
supporters of the Acts, who now attempt to make out that their
tendencies are highly moral, as perhaps they may endeavour, after
reading the arguments advanced in this Essay, to make them out to be
highly constitutional. They have openly boasted in and out of Parliament
that more has been achieved by their salaried police and medical
officers than has ever been accomplished by the unwearying efforts of
Christian societies and independent workers, and that their achievements
in the matter of spiritual influence and moral conversions have dwarfed
all that has ever been recorded in the annals of Christian
evangelization in this direction.[79] Similarly they will no doubt by
and by show with equal success that the system which they have
introduced is a bulwark of our constitutional liberties, in comparison
of which Magna Charta, Habeas Corpus Act, and Jury Trial have been
lamentable and conspicuous failures.
In the expectation of having this proved to us in numerous pamphlets to
the absolute satisfaction of the writers of the same, I cannot avoid
this opportunity of investigating a little more closely the so-called
moral arguments brought forward in favour of the Acts. In doing so I do
not for a moment intend to return to that unprofitable dispute which
they prolong regarding certain reclamations which they claim of a
percentage of their patients in hospital. But I would call attention to
the following fact, that our opponents always, and up to the present
moment, in speaking of the “moral view,” include in that expression only
that wretchedly limited portion of the question which relates to the
annual exodus from this degrading trade of a certain number of public
women, an exodus which they who are acquainted with the circumstances of
the lives of such women before the Acts ever came into existence, know
to have been always going on to a very much greater extent than the
upholders of these Acts take cognisance of. Whereas this has, without
exception, been the limit of our opponents’ view of the extent of the
moral question involved, our view of that question has extended far
beyond the moral influence of this legislation on the immediate victims
of it, and has embraced its influence on the country at large, and that
not only considered in its character as a direct encouragement to
license, through the protection offered, but also in its character as a
warping and blinding influence on the judgments and consciences of men
of all classes who may themselves not be guilty of any personal
impurity. It is a most inadequate and narrow view of the morality of
which we speak as undermined by the Acts, which is exclusively confined
to sexual morality. Injustice is immoral; oppression is immoral; the
sacrifice of the interests of the weaker to the stronger is immoral; and
all these immoralities embodied in these iniquitous Acts, and
continually contemplated, as they must be, by all that portion of the
nation who have no direct connection with the working of them, are a
demoralizing influence of the most deadly character.
I cannot too much insist upon the weight which we who oppose these Acts
attach to the statement which we have so frequently made, that they are
calculated to transfer the essential element of guilt from the vice to
the infringement of this law. Under the action of this law we maintain
that gradually society at large comes to regard as evil and good, not
vice and virtue absolutely, but, vice not regulated by this law, and
vice regulated by this law. Men’s talk, inferences, actions come to be
all based upon a false distinction, the distinction between regulated
and unregulated vice, and the true distinction between vice and virtue
is lost sight of.
A Report as to the operation of the Contagious Diseases Acts has been
recently issued and sanctioned by Government, which contains the
following clause:—“The improvement that has taken place in the persons,
clothing, and homes of the common women as regards cleanliness and order
is most marked. Many of the women formerly looked bloated from drink,
whilst others were greatly emaciated and looked haggard through disease.
Their language and habits are greatly altered—swearing, drunkenness, and
indecency of behaviour have become quite exceptional; the women now look
fresh and healthy, and are most respectful in their manner; in fact,
these poor creatures feel that they are not altogether outcasts from
society, but that there are people who still take an interest in their
moral and physical welfare.”
If the Report is to be regarded as a mere statement of fact, we who
object to these laws on moral grounds could find no stronger argument
than these words to prove the tendency of the law to extend the practice
of fornication among men. The tone of satisfaction, however, with which
the framer of the Report evidently dwells on this result of the Acts,
cannot but be felt to be, to a certain extent, a verification of what I
have said about submission to these Acts usurping the place of virtue in
public opinion. But the full force of that statement is verified very
terribly when we find a supporter[80] of these Acts quoting this
sentence, with the words, “the women now look fresh and healthy,” in
italics, as the crowning moral benefit conferred on society by the Acts.
I would observe here that the writer of the Report has taken refuge in
an expression calculated to mislead hasty readers. He uses the word “the
women” in a sense in which our opponents are peculiarly fond of using
it. I wish simply to challenge the writer of this Report to show his
meaning more clearly by asking him this simple question: To what women
do you refer when you boast of their moral and physical improvement?
Clearly not to those women who are escaping, or have escaped, from the
toils of sin; because the moment they begin thus to escape, they are
removed from your supervision and cognisance, they return to virtuous
life, or seek the privacy of the Refuge, and henceforward cease to be
objects of interest to you in the matter of the clearness of their
complexion or the amiability of their manners. Who, then, I ask again,
are the women of whose moral and physical improvement you boast? I will
answer for you; and now let us read this sentence again with the proper
and honest word substituted in the place of “the women:”—
“_The harlots_ now look fresh and healthy, and are most respectful in
their manner.”
We find in the report of the Committee of the House of Commons, which
sat on these Acts, and recommended their recent extension, the following
piece of evidence:—
“592. There was one house into which I went with the inspector of police
lately. I heard a woman reading with a loud voice. When we got in the
passage I stopped to listen, and I found, to my astonishment, that she
was reading from Bunyan’s _Pilgrim’s Progress_. I went into the room and
found no less than seven women sitting round a good-looking female of
twenty-five, who was reading from the Pilgrim’s Progress, all paying the
greatest attention.
“593. Was the woman reading it in a spirit which showed that she was
feeling what she was reading?—Most decidedly; I never saw clergyman or
audience in a church look more serious than the reader or the listeners.
“594. Were those prostitutes?—They were.
“595. Were they engaged in the prosecution of their trade?—Most
decidedly; I have, I am sorry to say, two or three of them in the
hospital now.”
The reader will observe, however, that in this instance the witness
whose moral obliquity was such that he could suppose that his evidence
evinced a moral improvement in the character of a harlot, was probably
an uneducated Government official; but now we find the framers of
Government reports, and advocates of this Act in high place, falling
into exactly the same confusion, and mistaking obedience to this Act for
moral rectitude.
We deeply deplore this deadly confusion, which we maintain that these
Acts give rise to, and believe it to be fraught with the most ruinous
moral consequences to England, bringing, as it must, in its train moral
obliquity and the spread of fornication. We further maintain that that
moral obliquity is here introduced at a point in social relationship
where its introduction is more calculated than at any other to undermine
the whole moral code of the country. Striking at the root of family life
by the encouragement of prostitution, it introduces a complete confusion
of right and wrong, with respect to a vice more typical than any other,
and is calculated to reproduce itself in moral enormities through the
whole fabric of social life.
But what moral enormity can surprise us now, when we have found that the
Admiralty and the War Office have risen up to be the saviours of the
souls of women?
I might address them in the words in which Milton once addressed the
Treasury Bench:—“Indeed, my Lords of the Admiralty and the War Office,
are ye at last become the gracious guardians of those principles which
in your hearts you despise? Or has the Spirit at length beamed in light
upon souls where light never shone before? For shame, my Lords! will ye
never forsake inconsistance? Demons have trembled and Jews have been
converted, but when the cause of religion is echoed from the Admiralty
and War Office, perfidy is at hand, and we ought to look about us.”[81]
CHAPTER VII.
I have before alluded to the two great struggles in the history of this
country, which, occasioned by the arbitrary encroachments of those in
power, led to the more sure establishment of our constitutional
privileges. These revolutions and their results, which have been the
wonder and admiration of all foreign writers, owing to their success,
and the sober and resolute method in which they were conducted, were
chiefly brought about through the union of all classes in opposition to
these encroachments,—a union not marred by selfish and party interests.
These great struggles are worthy of the deep and earnest contemplation
of every English man and woman who cares for the welfare of our country,
and who, conscious of the ever-recurring tendency in human nature to
spoliation and aggression, is sternly jealous of the rights and
blessings purchased by the efforts and by the blood of our forefathers.
Alarmed again in our own day by the insidious advances of despotic power
in the midst of us, and convinced that what is morally wrong can never
be politically right, they will turn an earnest and searching gaze upon
these records of the past, and in doing so cannot fail to be stimulated
to hold fast and contend for, even to death if need be, those blessings
which were so hardly and so nobly won. The battle which we have now to
fight is in its essential character the same as those which resulted
formerly in confirmations of our liberties, and in a firmer
establishment of a just and virtuous state. The principles arrayed on
either side in this conflict are essentially the same as those which
inspired the combatants of the past. Great constitutional rights have
ever been vindicated by those out of power against the encroachments of
those in power; but the scene of the battle is changed. It is not now
the Barons arrayed against the King, nor the insulted Commons against
the Court party, and the aggressions of favourites in power. The tyranny
which we are now opposing has sprung up in a quarter which in the era of
the English Revolution could scarcely have been suspected as likely ever
to become dangerous. Our present peril arises from the arbitrary
disposition of permanent officers of the Government, aided by the
blindness of Her Majesty’s ministers, and the contempt for, or ignorance
of, our ancient constitutional rights which prevails among a proportion
of the members of both of our Houses of Parliament. The power of the
Crown, almost dead and rotten as prerogative, has grown up anew with far
more strength in a new quarter, which, still possessing the confidence
of the people, makes the exercise of that arbitrary power doubly
dangerous. The painful discovery has been made that the forms of a free
government and the ends of an arbitrary government are not incompatible.
The evil principles at work in this piece of legislation to which we are
opposed, went craftily, and too successfully, to work, and the conduct
of the promoters of these laws may be described in the following words
of Mr. Burke:[82]—
“They who will not conform their conduct to the public good, and cannot
now support it by the prerogative of the Crown, have adopted a new
plan—they have totally abandoned the shattered and old-fashioned
fortress of prerogative, and made a lodgement in the stronghold of
Parliament itself. If they have any evil design to which there is no
ordinary legal power commensurate, they bring it into Parliament; in
Parliament the whole is executed from the beginning to the end; in
Parliament the power of obtaining their object is absolute, and the
safety of the proceeding perfect—no rules to confine, no after
reckonings to terrify.[83] Parliament cannot with any great propriety
punish others for things in which they themselves have been accomplices.
Thus the control of Parliament upon the executive power is lost, and
impeachment, that great guardian of the purity of the constitution, is
in danger of being lost even to the very idea of it.”
It must be confessed that the representatives of the people have been
false to the people in allowing this surrender of the rights and
liberties of any portion of them to be made in secret, and with that
stealthy swiftness too clearly indicative of the fears of those who
dared so to legislate. Ignorance and absence from the House have been
pleaded by many members of Parliament as an excuse for their virtual
complicity in this legislation. Their crime against the Constitution may
be less than that of those who framed and watched over this legislation,
but ignorance may not, any more than presumption, occupy the seat of our
lawgivers.[84]
Nevertheless our conviction is, that we shall ere long be able to reckon
the Commons once more, as in times past, on the side of right and of
constitutional freedom, as opposed to despotism; for we have this trust,
that the Commons of England will yet be found faithful, and that the
people’s representatives will once more prove themselves the champions
and the guardians of our liberties and of our national honour. Were it
not for this hope, were it not for the inestimable blessing of a
comparatively pure representative system of government, and still more,
were it not for our conviction of the love of virtue, freedom, and
justice which lives and burns in the great heart of England’s humbler
classes, to guide and inspire their representatives, our hearts might
die within us as we contemplate the spectacle of the growing infidelity
in high places to vital principles, and the audacious attempts to
undermine our Constitution, for which attempts, if ignorance be the
excuse, our case would be equally deplorable. Yet in spite of ignorance,
infidelity, or selfish passion on the part of our rulers, we
nevertheless retain that faith in the vigour and purity of English
representative government which is breathed in the following noble words
of De Lolme:[85]—
“How long soever the people may have remained in a state of supineness
as to their most valuable interests, whatever may have been the neglect
and even the errors of their representatives, the instant the latter
come either to see these errors or to have a sense of their duty, they
proceed by means of the privileges we have mentioned to abolish those
abuses or practices which during the preceding years had taken the place
of the laws. To how low soever a state public liberty may happen to be
reduced, they take it where they find it, lead it back through the same
path and to the same point from which it had been compelled to retreat;
and the ruling power, whatever its usurpations may have been, how far
soever it may have overflowed its banks, is ever brought back to its old
limits.”
The continuance up to this time of the encroachments made on the
Constitution by these Acts which we oppose, may perhaps be accounted for
by the fact that the class of persons first assailed were those with
whom society has in general the least sympathy; whereas in similar
crises of danger in past times our liberties were violated in the person
or persons generally of men of rank, influence, or high character.
Nevertheless, this was not always the case, for, as Blackstone says, it
was the injury done to a common citizen (one Jenks) which gave existence
to the Act which completed the security of public liberties; “the
oppression of an obscure individual gave rise to the famous Habeas
Corpus Act.” Junius has observed that this is worthy of note, for the
just idea it conveys of that readiness of all orders of men in England
to unite in defence of common liberty. I am convinced that Englishmen
now are not so degenerate as not to contend with equal zeal for the
redress of wrongs which are no less dangerous because inflicted on a
class whom society generally despises, or upon those the humbleness of
whose position or whose unsheltered fame leaves it possible for men
carelessly to confuse them with the guilty. This encroachment on our
liberties has come upon us “like a lion and wolf in one,” rapacious and
devouring, but sly and soft-footed. Had our ancient and dearly loved
constitutional freedom been attacked in a more open manner, had the
first sufferers been persons accustomed to demand and to receive
justice, the evil would have been quickly averted, so loud and
instantaneous would have been the outcry; but because this lion-wolf set
its paw first upon the meanest of England’s citizens, the danger is but
the greater. The gallant ship of our Constitution may be as fatally
wrecked by the falling of some unseen spark in the remotest, dingiest
corner of its hold, as by the flash of lightning which strikes the
headmast in the sight of all, and sends it through the waters a
perishing mass of flames. “The Hollander in the midst of the storm,
though trusting to the strength of the mounds that protect him, shudders
no doubt at the sight of the foaming element that surrounds him; but
they all give themselves over for lost when they know that the worm has
penetrated into their dykes.”[86] “The floods of ungodliness have made
me afraid,” says the Psalmist, but we may have even greater reason to
fear when the element which is to destroy filters up from beneath. I
have pondered the mournful saying of Montesquieu, “Have not Rome,
Lacedæmon, and Carthage perished? So will this beautiful system of the
English Constitution perish when the legislative power shall have become
more corrupt than the executive.” And I ask myself with sorrow, “Can it
be that my country has already begun to tread this downward path?”
Doubtless when the Legislature has acted the part of a traitor in
surrendering the dearest and most ancient rights of any portion of the
nation into the hands of the executive, whose power it has ever been the
wisdom of our laws to restrain within the strictest limits, it may be
said that the legislative power has become more corrupt than that
executive which is itself on the highway to corruption through this very
cession into its hands of functions which it never ought to exercise.
“Self-government,” Grattan truly said, “is life.” But it is so in the
fullest sense only when those who govern themselves, having a voice in
the making of the laws which they themselves obey, possess that life of
the spirit and that enlightenment of conscience which is nourished in
the purity of honourable homes and by the study of the Word of God. And
who shall say that there is not still such life in England? The present
crisis will test the life which there is in us; it will gauge the moral
condition of our people. If it find them degenerated from the manly
stature of their forefathers, who were alike the champions of God’s
truth and of human liberty, then we may well speak to them the warning
words of Rousseau, “Ye free nations, remember this maxim, Freedom may be
acquired, but it cannot be recovered.”[87] We have but partially and for
a short time lost that freedom; there is yet time to recover lost
ground, to turn back the tide of corruption and slavishness[88] which
will follow this false step. But the crisis is grave, the necessity for
action is urgent, and, if we delay, the time for recovery will be
passed; and henceforward we shall be given up, as other nations which we
have seen, to the miserable alternations of raging fever and of
death-like torpor, of revolution and of despotism.
But this “self-government which is life” has been despised by those
holding a commission from the nation. Was this law against which we
contend made by the nation? Assuredly not. Nay, nor was it even made by
Parliament, but by a mere fraction of Parliament casting off for a time
the faith and responsibility of men commissioned by the nation. The
people were not yet so degraded as to consent to such a law. Even where
their education is but poor, the people nevertheless still know right
from wrong; they are yet able to distinguish between truth and
falsehood, between freedom and slavery. It may be said of our industrial
classes generally as Lord Chatham said of our forefathers who framed the
Great Charter:—“Their virtues were rude and uncultivated, but they were
great and sincere; their understandings were as little polished as their
manners, but they had hearts to distinguish right from wrong; they had
heads to distinguish truth from falsehood; they understood the rights of
humanity, and they had spirit to maintain them.”
All the evils incident to our system of government arise when that
government ceases at any period to be honestly representative of those
masses of the people whose spirit we have described; and it is evident
that when our rulers are swayed too much by any particular class in the
community, they become no longer truly representative.
The narrower the class of persons exercising this undue influence, the
greater is the danger; and that danger is heightened still further when
this influence proceeds exclusively from men of one profession. The
profession to which I now allude is the medical profession. I wish to
guard myself against the suspicion of a general and unreasoning
prejudice against this profession, which Guizot has styled “the
mournfullest and the noblest.” We have all of us too much reason to be
grateful to men of that profession, many of whom we know by experience
to be among the truest friends of humanity. But physicians who hang
about courts, who have the ear of royalty, and of aristocratic public
officers, and who exercise an influence over superstitious households of
the great, somewhat resembling that formerly exercised by the priest in
Italy and Spain, when allowed to influence our legislation in the direct
manner which they have done of late, must be content to endure the
searching judgment of the people at large, and ultimately to fall under
the people’s indignation, if they be found to be interfering with our
laws, in defiance or in ignorance of the principles of our Constitution.
Such medical men have not unfrequently risen to posts of honour, high
among the aristocracy of the land, by an energy and talent which we
cannot fail to admire; but it cannot be denied that they frequently
attain to excellence in the single line of professional study to which
they have been necessarily devoted, at the expense of other portions of
education essentially needful for those who would venture on meddling
with the great and difficult science of governing. This deficiency is
deeply dangerous in persons who have the hardihood to assume the
responsibility of prompting the legislative measures of those who are
bound to hold themselves accountable to the people alone. While
observing the overwhelming influence which these professionals have
lately been allowed in the making of laws for the whole nation, I have
sometimes been appalled at the evidence which comes before us of their
profound ignorance of English history, its noble struggles, the
structure and resources of our political system, and the great
constitutional principles which we hold dear. They seem to have as
little appreciation of these matters as they have of the feelings and
souls of human beings. Their ignorance both of our political
constitution, and of the principles which animate human nature, are
proved by their audacious attempts at wholesale compulsion.[89] They
scarcely would have succeeded had they brought their present tactics to
bear upon a nation barely emerging from childhood, and accustomed to
obey the rule of a despotic monarch. How dangerous is their attempt when
made upon a people to whom constitutional freedom is dear, will be
proved by the future ruin of the influence of that whole class which has
attempted it. The limitations of their education produce a narrowness of
intellect, which blinds them to the limits of their own legitimate
influence. Hence the fatal mistake into which they have fallen.
Compulsion is dear to them as life; the passion for compulsion grows by
the indulgence granted to them by our foolish legislators. Who can tell
to what they will compel us next? For their ignorance of history and of
human nature lead them to run riot in our political constitution, which
they do not understand; they tell us such and such questions are purely
medical questions, while they are secretly, through carelessness or
ignorance, or consciously, robbing us like burglars in the night of our
cherished inherited safeguards, dearer to us than wealth or health; and
by the arbitrary measures which they persuade a credulous or ignorant
Legislature to adopt, by suspending the liberties of the citizen on all
hands, and finally by abandoning the vital principle of jury trial in
order that a project of theirs may work, they have at last taken that
fatal step towards “establishing aristocracy, the most oppressive of
absolute governments.” And let the people of England never forget that
the government of an aristocracy does not consist in that of wealth or
hereditary privileges so much as in that arbitrary power of a particular
class, whose enactments are permitted to override the safeguards of our
Constitution.
I cannot sufficiently warn the people of England of the need of a
jealous watchfulness over the actions of these law-making doctors. The
Contagious Diseases Act of 1869 was smuggled through the House of
Commons in three days; there is now another Bill emanating from the same
source which will probably shortly come also before the House, some of
the provisions of which (already alluded to in a note) may be found to
be of a character as oppressive though not so immoral as those which I
have been describing. It behoves the people of England, therefore,
narrowly to watch, lest, through the collusion of doctors and
aristocratic law-makers, the liberties of the free citizens of England
should be even further and more grievously infringed than they already
have been.
I have hitherto bestowed upon our Constitution unmitigated praise; but
in the laws of England there is one great and unique defect. We can
scarcely open the works of our great lawyers of past times without
observing, that, even among those who most eulogize our system of laws,
there is an uneasy consciousness of something somewhere wrong. At
Liverpool, in the spring of 1870, a case was tried of a man of thirty
years of age who had assaulted criminally a child of fourteen years, who
had been an under-servant in his house. The defence set up was
_consent_. “Mr. Justice Willes, in passing sentence, said he hoped that,
in cases where girls between twelve and fourteen years of age were
assaulted or seduced, the question as to their consent would attract
public attention, and that largely; he had had to try a great many cases
of this kind, especially where girls were servants, and where their
masters, instead of protecting the poor children under their charge, had
corrupted them; he hoped that what the Bishop of Winchester had so often
attempted, though unsuccessfully,—to have the law which extended only to
twelve years of age extended to girls of fourteen,—would yet be
accomplished, and that outrages upon these little ones would be made an
offence against law without any question of consent. He felt very deeply
on this subject, and his experience showed him the necessity of
protection for girls of tender years; it was quite absurd to suppose
that a law which applied to girls of twelve should not apply to girls of
fourteen, as girls were mere children up to fully the age of
fourteen.”[90] The laws of most other countries make the seduction of
any woman under twenty-one a misdemeanour; but our laws, to the disgrace
of Englishmen, allow the seduction of any child over twelve. If a
villain can persuade the dispensers of the law that he can show that
there was consent on the part of the child whom he ruined, he is free.
[Acting upon this rule, these Acts we are opposing take children of
twelve, and even younger, outrage them, bind them over to return again
and again to be outraged, and turn them back upon the streets.] An
eye-witness of the trial alluded to remarked that pity and anger strove
together in her breast, as she looked at the poor little creature,
dwarfed both in body and mind, uneducated, indigent, and exceedingly
childish, standing shivering in her ragged pinafore, to be judged as a
“woman” who had given the consent of a mature will to the immoral act,
and as she thought of the tenderness of the law to the man—with all his
advantages of age, education, manner, position, money, and experience of
life,—who had ruined that child.
I have here indicated the weak point in English law. The same want of
justice appears in the law which, till lately, made marriage the
confiscation of all the wife’s earnings, and is further exhibited in the
disgracefully slight punishment inflicted for assaults on women and
children.[91]
Blackstone says,[92] “It is a remarkable omission in the law of England
which, with such scrupulous solicitude, guards the rights of
individuals, and secures the morals and good order of the community,
that it should have afforded so little protection to female chastity. It
is true that it has defended it from force and violence, but it has left
it exposed to perhaps greater danger from the artifices and
solicitations of seduction. In no case whatsoever, unless she has had a
promise of marriage, can a woman herself obtain any reparation for the
injury she has sustained from the seducer of her virtue. And even where
her weakness and credulity have been imposed upon by the most solemn
promises of marriage, unless they have been overheard or made in
writing, she cannot recover any compensation, being incapable of giving
evidence in her own cause. Nor can a parent maintain any action against
the person who has done this wrong to his family, and to his honour and
happiness, but by stating and proving that, from the consequences of the
seduction, his daughter is less able to assist him as a servant, or that
the seducer was a trespasser on his premises. Hence no action can be
maintained which is not attended with the loss of service or an injury
to property. Therefore in that action for seduction which is in most
general use, the father must prove that his daughter actually assisted
in some degree, however inconsiderable, in the housewifery of his
family, and that she has been rendered less serviceable to him by her
pregnancy; or the action might be sustained upon the evidence of a
consumption or any other disorder contracted by the daughter in
consequence of her seduction, or of her shame and sorrow for the loss of
her honour. It is immaterial what is the age of the girl; but it is
necessary that she should be living in and considered part of her
father’s family. Another action for seduction is a common action for
trespass, which may be brought when the seducer has illegally entered
the father’s house; in which action the debauching his daughter may be
stated as an aggravation of the trespass. But these are the only actions
which have been extended, by the modern ingenuity of the courts, to
enable an unhappy parent to recover a recompense for the injury he has
sustained by the seduction of his daughter.”
I feel sure that the hearts of fathers and mothers among the working
classes of England will respond, when I speak of the gross influence and
teaching of such a state of the law as this, and of the low estimate of
the worth of female honour which alone could have induced it. Here we
see that the property of the father, and the material usefulness of his
daughter in the house, are set above all the claims of female honour,
and above all the considerations of family affection. It is true of
nations as well as of individuals, “whatsoever a man soweth that shall
he also reap.” We see in all the horrors which our Police Courts at this
day reveal to us, of brutality towards women, of heartlessness and
treachery in men of the upper classes towards the daughters of the poor,
and in the levity and coarseness which accompany the exposure of these
villanies, the disgusting and terrible fruits of this one corrupt seed
of selfishness and injustice which, for so many generations past, has
been marring the beauty of our English laws.[93]
The Contagious Diseases Acts would never have been possible in this
country, if Englishmen had not become gradually accustomed, through the
educational influences of the gross state of the laws of which I have
just spoken, to despise the claims of women as such, and to cease, both
in theory and in practice, to grant them that equality of citizenship
which the Constitution originally bestowed upon them. The outrage upon
Lucretia put an end to the regal government in Rome; that upon Virginia
proved the destruction of the power of the Decemvirs; an offence against
a woman was the occasion of the bloody vespers of Palermo. In England,
at this day, the cry, not of one, but of thousands of outraged women is
ascending, and entering into the ears of the God of justice and of
vengeance!
CHAPTER VIII.
I come now to treat of the brighter and more hopeful side of the
picture, and of the means whereby redress of the wrong lately
perpetrated is to be obtained. De Lolme, after dwelling on the
privileges of a people who live under a just code of laws, speaks as
follows: “But all these privileges of the people, considered in
themselves, may be but feeble defences against the real strength of
those who govern: all these provisions, all these reciprocal rights,
necessarily suppose that things remain in their legal and settled
course.” And he goes on to suppose a case in which rulers, suddenly
throwing themselves, as it were, out of the Constitution, and no longer
respecting the person of the subject, should force upon the nation the
enactments of an arbitrary will. He asks, “What then would be the
people’s resource?” He answers, “It would be resistance.”
He observes that the question of the right of the people to resistance,
in certain cases, has been established by the laws of England, which
look upon it as the “ultimate and lawful resource against the violences
of power.”[94] He further adds: “It was resistance that gave birth to
the Great Charter, that lasting foundation of English liberty; and the
excesses of a power established by force were also restrained by force.
It has been by this same resistance that at different times the people
have procured the confirmation of the same charter.” Lastly, this
resource of resistance, which for some time continued to be an act of
force opposed to other acts of force was, at the era of our glorious
Revolution, expressly recognised by the law itself.
Judge Blackstone, in his chapter on “the rights of persons,” after
examining the absolute rights which pertain to every Englishman, says,
“But in vain would these rights be declared, ascertained, and protected
by the dead letter of the law, if the Constitution had provided no other
method to secure their actual enjoyment. It has therefore established
certain other auxiliary rights of the subject, which serve principally
as outworks or barriers to protect and maintain inviolate the three
great and primary rights of personal security, personal liberty, and
private property....
“To vindicate these rights when actually violated or attacked, the
subjects of England are entitled, in the first place, to the regular
administration and free course of justice in the courts of law.
“Next, to the right of petitioning the King and Parliament for redress
of grievances.
“And lastly, to the right of having and using arms for self-preservation
and defence.
“And all these rights and liberties it is our birthright to enjoy
entire.”[95]
Now this solemn right of resistance, carrying with it, as it does, great
responsibilities, would be in itself but a vain shadow, did there not
exist in the nation the means of effecting a general union, of bringing
about great and widely-spread co-operation, and, to use a French word,
that _solidarité_ which are the requisite conditions of success in any
national enterprise for the redress of national wrongs. Private
individuals—and most particularly is it the case in the instance of
which we are treating in this Essay—are forced to bear in silence
injuries in which they do not see other people take a concern. They
tremble in their solitude and weakness at the formidable power of those
who oppress them, and as the latter well know the advantages of their
own position, they think they may venture upon anything. But when, with
the suffering of one—even the meanest member—the sympathy of all the
other members of the body politic comes to be expressed, and finds an
organized utterance, then the throes of this agony begin at last to be
felt as a simultaneous resistance to the power that inflicted it.
Lest there should be lurking in the minds of any of my readers the
thought that Parliament is an authority which it is in vain to try to
resist, and that we are to endure now from Parliament invasions of our
rights more tyrannical than we should have endured formerly from a King,
and therefore that we ought to sit still in inaction, or in a
pusillanimous indifference and criminal submission to such invasions of
our rights, I venture to urge the people of this country, by the noble
examples of the past, to let no day pass over their head without some
effort to effect the purification of our country from the great evil
established in it by Parliament. And I cannot resist quoting here once
more the words of that venerable peer, who has set us an example, worthy
to be studied at this day, in resisting the encroachments of the
Legislature. These words were spoken under the pressure of ill-health,
and have in them a solemn pathos, to which the present crisis enables
those of us who recognise its gravity to respond:—
“The constitution of this country has been openly invaded, in fact, and
I have heard with horror and astonishment, that very invasion defended
upon principle.... My Lords, I thought the slavish doctrine of passive
obedience had long since been exploded.... No man respects the House of
Commons more than I do, or would contend more strenuously than I would
to preserve them their just and legal authority. Within the bounds
prescribed by the constitution, that authority is necessary to the
well-being of the people; beyond that line every exertion of power is
arbitrary, is illegal, it threatens tyranny to the people and
destruction to the State. Power without right is the most odious object
that can be offered to the human imagination. It is not only pernicious
to those who are subject to it, but tends to its own destruction....
Tyranny, my Lords, is detestable in every shape, but in none so
formidable as when it is assumed and exercised by a number of
tyrants....
“My uncertain state of health must plead my excuse if I wander from my
argument; yet I thank God, my Lords, for having thus long preserved so
inconsiderable a being as I am to take a part upon this great occasion,
and to contribute my endeavours, such as they are, to restore, to save
the constitution. My Lords, I need not look abroad for grievances. The
grand capital mischief is fixed at home. It is corrupting the very
foundation of our political existence, and preying upon the vitals of
the State. The constitution has been grossly violated. THE CONSTITUTION
AT THIS MOMENT STANDS VIOLATED. Until that wound be healed, until the
grievance be redressed, it is in vain to recommend union to Parliament,
in vain to promote concord among the people. If we mean seriously to
unite the nation within itself, we must convince them that their
complaints are regarded, that their injuries shall be redressed. On
_that_ foundation I would take the lead in recommending peace and
harmony to the people. On any other I would never wish to see them
united again. If the breach in the constitution be effectually repaired,
the people will of themselves return to a state of tranquillity; if not,
MAY DISCORD PREVAIL FOR EVER! If the king’s servants will not permit the
constitutional question to be decided according to the forms and on the
principles of the constitution, it must then be decided in some other
manner; and rather than it should be given up, rather than the nation
should surrender their birthright to a despotic minister, I hope, my
Lords, old as I am, I shall see the question brought to issue, and
fairly tried between the people and the Government.”[96]
Such words as these, however, indicate the struggles of a people whose
representative government is so defective as not to offer a real
representation, and who therefore are under the necessity, when their
rulers do not represent them, of contemplating a violent resistance to
their authority. We, on the contrary, now more happily situated, can
contemplate a change by the ordinary course of elections of the
individuals who represent us. The due action of this system under which
we now live is well expressed in the words of De Lolme:—“When the rulers
see that all their actions are exposed to public view, that in
consequence of the celerity with which all things become communicated
the whole nation forms, as it were, one continued _irritable body_, no
part of which can be touched without exciting an universal _tremor_,
they become sensible that the cause of each individual is really the
cause of all, and that to attack the lowest among the people is to
attack the whole people.”[97]
Now it becomes of the greatest importance, seeing that the people are
possessed of the power of awing the Legislature, that they should use it
in the wisest and best manner; and in order to that end we must bear in
mind what has been so often proved to the glory of the people of
England, that power is often most effectually expressed by an attitude
of suspended determination. “Forming thus,[98] as it were, one body, the
people at every instant have it in their power to strike the decisive
blow which is to level everything. Like those mechanical powers the
greatest efficiency of which exists at the instant which precedes their
entering into action, it has an immense force just because it does not
yet exert any, and in this state of stillness, but of suspense, consists
its true momentum.”
Now it is this instant which precedes any direct forcible action on the
part of the people, which is the instant most favourable for the
conversion and enlightenment of those rulers who trespass upon the
Constitution. It is precisely at this instant that those who by virtue
of their commission from the people are intrusted with the solemn
responsibility of the more active part of government, behold themselves,
as it were, exposed to public view, and attentively observed by men, not
fiercely, but solemnly and religiously bent on the recovery of their
sacred rights; by men free from all party spirit, and combined as men
combine in a crisis of common danger, and who place in their rulers only
a conditional trust. These rulers, feeling themselves thus observed, are
afraid of exciting commotion, revolution, or rebellion, which, whatever
else it effected, would surely and certainly effect the destruction of
their own power, and be the close of their own tenure of office. Under
these circumstances, if they should have sacrificed public liberties or
been false to their trust, “they would no sooner lift up their eyes
towards that vast assembly which views them with this watchful
attention, than they would find their public virtue return upon them,
and would make haste to resume that plan of conduct out of the limits of
which they can expect nothing but ruin and perdition.”[99]
Therefore I trust you will pardon me, O patient and resolute people of
England, who have in former national dangers so nobly borne, so long
forborne, and so firmly acted, if I adjure you in the present crisis to
remember the spirit in which your ancestors fought the battles of
freedom, and to hold yourselves thoroughly prepared to _resist this
legislation to the uttermost_, while cherishing the spirit of dependence
on Divine aid, enjoined on the Hebrews of old in the words, “Stand
still, and see the salvation of God.” Remember that the great success
attending your former acts of resistance, success which has been dwelt
upon in wonder and admiration by our continental neighbours, is mainly
owing to the fact that you influence rather than interfere, that you are
able and prepared to strike, but refrain from striking.
“The power of the people is not when they strike, but when they keep
their rulers in awe. It is when they can overthrow everything that they
never need to move.”
I have said that we live under a system of just laws, and I have praised
our representative government. But we owe the existence of the Acts of
Parliament which we condemn, in a great measure to a grave fault in
these laws, and a grave inadequacy in that representative government. I
have already spoken of that fault in our laws. It cannot be expected
that due attention will ever be paid to the interests of any class which
is not duly represented in the government of the country. If women had
possessed the franchise, the Contagious Diseases Acts could not have
been passed. I have preferred in this Essay to treat these Acts as a
matter affecting the whole community rather than as one which concerns
women particularly, inasmuch as the claims which women and men have to
jury trial and to all constitutional rights are equal, and rest on the
same foundation, which cannot be destroyed for one sex only. I can never
view this question as fundamentally any more a woman’s question than it
is a man’s. These Acts secure the enslavement of women and the increased
immorality of men; and history and experience alike teach us that these
two results are never separated. Slavery and immorality lead to
degradation, political ruin, and intellectual decay, and therefore it is
that these Acts are a question for the whole nation at large. Yet we
cannot shut our eyes to the fact that these Acts of Parliament in the
first instance affect women only; it is by their necessary consequences,
not by their immediate action, that men also are affected.
It is the beneficent arrangement of God that the interests of men and of
women are identical; to this we owe it that women have not been more the
sufferers from the partial representative system of this country than
they have yet been. But let us not forget that the same great ordinance
of God holds equally of the interests of all mankind, in all lands, and
of all ranks; the interests of all are identical; yet there are
oppressions manifold among mankind. It is to the recognition which
necessarily follows sooner or later of that great law of God, that we
may, under Providence, attribute the fact that the world is not worse
than it is. For when men act in neglect of this great law, evils ensue
more or less immediately; if they continue so to act, their neglect of
this law brings eventually disturbance or decay, and an overturning of
the fabric of society.
The object of a complete representation of the people is to establish a
government which, by its own natural action, shall follow out and not
violate this great principle. Hence it is that a just representative
government—that is, one in which there is no class unrepresented—is the
only form of government which bears in itself the elements and means of
its own continuance or revival. All other governments bear in them the
necessary seeds of revolution; they must all be corrected from without;
it alone is able to correct itself from within. The possession of the
franchise by women is not only the pledge of security for women—the only
satisfactory pledge that the interests of women shall be duly
respected,—but it is also the pledge of security for the nation that it
shall not be in danger of violating the great principle, that the
interests of all are identical, and shall not therefore incur the evil
consequences of such a violation.
The object of representative government is to make the recognition of
the principle that the interests of all are identical, preventive rather
than remedial. What I mean by this will be best illustrated by the very
case with which we are dealing. The Contagious Diseases Acts are based
on the fundamental assumption that the interests of women, as a class,
can be neglected, while those of men can be cherished. It is an
erroneous basis on which to make any law, for it is a contradiction of
the law of God. Evil fruits must always follow for the whole nation
which permits its rulers to act on such an assumption. In the case in
point these evil fruits are easily detected, and the fatal operation of
the bad principle is easily traced; hence those who already possess the
franchise may be trusted to repeal these Acts. But though in this
instance the path of return from error may be short, still it is a path
of _return_. It is a retracing of our steps, the necessity of which has
been brought about by abnormal conditions; and there exists in our
representative government no guarantee against the repetition of such
errors in the future. The nation has to be recalled from error to
rectitude; it has to purge itself; to recover a great principle; and if
God grant that it returns to that principle from the expectation rather
than from the experience of the miseries of violating it, that result
will be one which does not flow naturally from our present partial
representative system, but which has been induced upon it from without.
The aim of representative government is to make the recognition of the
identity of the interests of all a continual and natural process; and
until women have votes, that which stands between this nation and the
evil consequences of violating this principle is only the precarious
barrier of “agitation.” Until women possess the franchise the system of
our government will be unstable and not self-corrective. And this is
much more evident in the present day than in former times, and is daily
becoming more evident. There are great social questions pressing for
consideration and for settlement; and so long as one sex undertakes to
consider these questions alone, we shall be hurried into errors similar
to the Contagious Diseases Acts, and into legislation based upon the
neglect of the interests of women—a neglect which in all instances will
prove, as in this it most emphatically proves, fatal to those imagined
interests on behalf of which these are neglected. Legislation can never
in these days, and at the stage of civilisation which we have reached,
be just and pure until women are represented. Do not let the reader here
for a moment suppose that I am attributing to men any intentional
injustice, or that I am supposing that they will be actuated in general
by anything but benevolent intentions towards women. But the safety and
stability of all that is done in the nation depends, not upon the
benevolent intentions of the enfranchised towards the unenfranchised,
but upon the just representation of all. Self-government is life, and
life cannot be lived at second hand.
“Unfinished questions have no pity for the repose of nations.” It is
only by means of the joint action of men and women that the great social
questions of the present day can ever be satisfactorily settled, and
when the iniquitous Contagious Diseases Acts—that huge retrograde step
in legislation—are done away with, the country will only fall into new
errors unless the voice of the women of the country, now raised from
without, receive that permanent means of expressing itself shortly,
easily, and effectually, which is given by the possession of the
franchise, and by that alone. Let it not be forgotten that the women of
England have had to come forth from the retirement of their own loved
homes, to do and to suffer what they never would have been required to
do and to suffer if they had possessed the franchise, and to wear their
lives out in protesting against an iniquity which—if their
unenfranchised voices be not powerful enough—will prove the ruin of
their country. Those fastidious gentlemen who querulously cry out
against the attitude lately assumed by patriotic and Christian women,
and who shudder lest the faintest echoes of this agitation should reach
the refined ears of their own wives and daughters, should remember that
agitations involving questions of deep domestic interest will again and
again be necessary, unless women are granted the power to influence
Parliament without such agitation. It would be well that such persons
should be fully alive to the fact also, that English women will be found
ready again and again to agitate, to give men no repose, to turn the
world upside down if need be, until impurity and injustice are expelled
from our laws. The interests of women are palpably identical with
morality; that the interests of men are equally so is not yet clearly
perceived by all men. While contending for justice to their sex, women
will therefore contend for morality. Let those who consider it an evil
that feminine voices should be heard, even in the cause of morality, in
such an agitation as the present, endeavour to prevent a recurrence of
the evil by putting it in the power of women to act for the good of the
country without raising their voice aloud.
CHAPTER IX.
I have now shown the grave character of the question which we are
discussing. I have stated the principles of Magna Charta which form the
basis of our Constitution, and I have pointed out how these principles
are violated by the Acts which we oppose; I have traced the pernicious
consequences arising from this violation, politically as well as
morally; and I have briefly indicated the means by which we may repair
the breach which has been made.
A question which involves not only the principles of morality but the
fundamental principles of our liberties, must be referred for its final
decision to no meaner tribunal than that of the entire people. That
people is the only tribunal competent to decide a question so vital as
this, which affects every individual in the nation, and must colour the
whole of the future internal policy of England. In retaining or
rejecting these Acts we have now to determine whether our Constitution
shall stand as it has stood hitherto, or whether it shall be changed.
This question can only be determined by that power in whose hands the
Constitution is ultimately vested. The determination of this momentous
question will involve also the fate of all that legislation the tendency
of which, during the last century, has been gradually to weaken the
Constitution through the insidious rejection in a large number of cases
of that great safeguard of our liberties, Jury Trial. Had not the way
been paved for such arbitrary Acts as those which we oppose, by the
innovations which our great constitutional lawyers have so deplored, it
would have been impossible for Parliament to have escaped arousing the
alarm of the people when it proposed this present wholesale breach of
the great principles of English jurisprudence. But the present Acts have
opened our eyes to the nature and tendency of those encroachments which
have long been silently going on among us, and we now see it to be a
strong argument against such encroachments that they should have
culminated in such an invasion of our rights. Men will carelessly
tolerate for a long time encroachments in cases of little moment, if
these encroachments tend towards the ease and expedition of justice; but
when they find that under colour of that ease or expedition, men
prompted by selfishness and fear, have made a law which hands over a
vast multitude of the people into the power of the lowest of the
executive, the real worth of our country begins to appear, and rather
than tolerate such an evil they will abolish that whole system, so far
as it relates to criminal cases, if that system can successfully be
pleaded as an excuse for such treachery on the part of our rulers.[100]
What tribunal then can decide so grave and important a national question
as this, other than the nation itself? What therefore shall we think of
a Government which, when the nation has pressed this question upon it,
has shown itself so contemptuous of the great constitutional principle
involved, as to profess to investigate the question by means of a
tribunal of twenty-six men, a considerable proportion of whom rank among
the actual framers or supporters of the Acts? Further, in what light
must it appear to us when we learn that the investigation conducted by
this tribunal is expressly to be made into the “operation and
administration” of the Acts, and that it has no other specified object?
Those who made such a limitation must surely either have been ignorant
of, or determined to override, the constitutional objections which the
nation itself has proclaimed more or less distinctly from the first;
otherwise why was not the inquiry directed at least in part to that
momentous question on which it must finally be decided?
A Royal Commission has been appointed to inquire into these Acts. What
is the subject of their inquiry? Is it whether this law be consistent
with the first principles of morality? No, for that, such a tribunal,
not being the ultimate fount of truth, is incompetent; nor, since we
have each of us direct access to the ultimate fount of truth, do we need
its verdict on this point. Is it whether this law be consistent or not
with the principles of the English Constitution? No, although into this
question inquiry might well have been made by such a body, for there are
constitutional lawyers amongst us who could not on inquiry have remained
blind to the fact of this great violation of our rights. But such an
inquiry apparently did not suit the Government; therefore, what do they
inquire into? Merely into this question, How does this double violation
of the constitution and of morality work?
Whatever, therefore, be the verdict of this Commission, it obviously
cannot affect either of these vital questions, which must be tried by
the whole nation; and the decision of this Commission, worthless if it
be for extension, is equally worthless if it be for repeal, because
these Acts, if repealed on that verdict, would then be repealed on the
ground of their unsatisfactory operation. The evil principle would not
only be left undisputed and unrebuked, but it would be practically
admitted that our constitutional privileges may again be violated should
the results of such violation be temporarily satisfactory. Therefore I
unhesitatingly venture to assert, that if the verdict of this Royal
Commission should be for repeal, it would be more hurtful to our
national interests than if it should report for extension, because, as
it must be evident, the Acts would then be repealed on the ground of
their medical inoperativeness, or the difficulty of their
administration, or for some reason short of their constitutional
iniquity, and not—as they will be when repealed by the people—on the
ground and by reason of their essential wickedness as violations of
morality and constitutional liberty. Surely it was the guardian genius
of our Constitution who so happily blinded the Government which passed
this law, as to permit it to assign and limit the grounds of this
inquiry, as it has done, and has thus led it to throw upon the people
themselves the necessity and duty, not only of repealing these Acts, but
of forcing Parliament to place on the Statute-book a lasting record of
this bitter conflict, in the form of a Statute which shall bind our
Legislature for all future ages to regard as sacred the constitutional
rights of the people, and which shall make it impossible for it again
thus to violate the Constitution.
The great restraining Statutes which exist in England have grown out of
aggressions made by those in power; and were not some unusual
aggressions periodically to call for the renewal of such restraints, our
Constitution might slip out of our hands without our being aware of it.
Such restraints as these are as necessary now as they were in ancient
times; nor will the progress of civilisation or the diffusion of
education ever preclude the necessity of such ever-renewed restraints.
For no diffusion of the ideas of liberty, no universal admission and
universal acceptance of the doctrine of personal freedom, no acuteness
of perception of the necessity of political equality for the very
existence of a State, can ever eradicate from the hearts of men those
passions and instincts which have been, in all ages and in all
countries, the cause of the destruction of liberty. For liberties are
not undermined for the sake of undermining liberties. The Constitution
is not attacked with the motive of destroying it; but in all ages and in
all countries liberties have been undermined, and constitutions have
been invaded, not for those ends directly, but for the immediate end of
some private passion or some private lust which is inconsistent with
public liberty, and which can only be gained by its overthrow.
Let me therefore press upon my readers to remember that when we have
obtained the repeal of these obnoxious Statutes, our work is then only
half done. Besides that negative action, a positive action is called
for, and means have to be taken to prevent the recurrence of such an
invasion and such a struggle. Unless this be done, we are not safe for
more than a generation. When we who have fought this battle are laid in
our graves, when at some future time those who succeed us may be less
vigilant or more enduring than we, and when at the same time men in
power may be actuated by the same ever-recurring instincts of passion
and self-interest—instincts which are always at the root of the
destruction of freedom,—then our liberties may be irretrievably lost,
and we shall be to blame for it, unless we have at the present crisis,
as our forefathers have done, placed on the records of Parliament a
solemn and binding agreement between the people and its rulers, whereby
each shall be strictly bound to conform to their respective obligations.
Guizot remarks, in speaking of the success of English revolutions:—“It
is not enough that rights should be recognised and promises made, it is
further necessary that these rights should be respected, and these
promises fulfilled; the last article therefore of the Great Charter is
especially intended to provide this guarantee. It is there said that the
barons shall elect twenty-five by their own free choice, charged to
exercise all vigilance that the provisions of the charter may never fail
to be carried into effect. The powers of these twenty-five barons (a
kind of vigilance committee) were unlimited.” If the king or his agents
allowed themselves to violate the enactments of the charter in the very
smallest particular, the barons were to denounce this abuse before the
king, and demand that it should be instantly checked. If the king did
not accede to their demand, the barons had the right, forty days after
the summons had been issued by them, to prosecute the king, to deprive
him of all his lands and castles, “the safety of his person, the queen
and his children being respected,” until the abuse had been reformed to
the satisfaction of the barons and of the whole nation.[101]
Any one who reads the History of England may judge for himself of the
wisdom of these immortal restraining Statutes called the Petition of
Rights and Bill of Rights, which were made necessary by the aggressions
and illegal actions of subsequent monarchs. And in less terrible crises
than those which called for these great confirmatory charters, it has
been invariably the habit of the English people to claim, through
Parliament, besides the redress of the wrong committed, some similar
wholesome restraining Statute, elucidating and strengthening anew that
particular part of the Constitution which may happen to have been
imperilled, and securing that similar violations shall not, in future,
be attempted with impunity. Among these may be reckoned the famous
Habeas Corpus Act, and a multitude of others which it is needless here
to recount.
It would be improper for me to conclude this Essay, in which I have
pointed out the similarity of the present crises to others in past
history, without calling the reader’s attention to one characteristic in
which these Acts of Parliament stand pre-eminent in the history of our
legislation. The tyrannical aggressions of those in power in former days
were indeed always the fruit of lust in some form or other,—greed of
gain, or personal influence, personal pleasure, jealousy, or revenge;
yet the effect of those aggressions was not so directly as in the
present case to make the people immoral. The immorality was at first at
least confined to the aggressor. He assailed the liberties only of the
subject, and in so doing struck, no doubt, more or less remotely, at the
root of public virtue; but he did not proclaim a vicious moral code in
the ears of the whole people. Now this last tyrannous aggression has
sown broadcast the seeds of an immoral principle. This is a law which
not only proceeds of evil, but immediately results in evil, by forcing a
moral iniquity upon the people. It is pre-eminently an onslaught on
morality, while it is an attack on the Constitution. Therefore in order
to oppose this great twofold evil, we need, not only the revival of all
our English patriotism, our love of freedom and of justice, but a deeper
revival still, that of the soul and of the spirit. We need a renewal of
faith in divine and eternal principles, a moral regeneration, a
practical return to the simplicity of Christ.
Guizot, in speaking of the secret of the success of the English
Revolution, says that in spite of the moral scepticism of the times “the
mass of the people remained faithful to simple Christianity,—as much
attached to their doctrines as to their liberties. The views of the
citizen, of the freeholder, and even of the peasant, soared far above
his actual condition. He was a Christian; in his family or among his
friends he boldly studied the mysteries of Divine power; what earthly
power, he asked, could be so high that he must abstain from considering
it? In the Sacred Scriptures he read the laws of God; to render
obedience to them he was forced to resist other laws; it therefore
became necessary to him to ascertain where human legislation ought to
terminate.” It is this alternative which, in a much more marked and
naked form than ever before, our citizens, our freeholders, and our
peasants are once more driven to contemplate face to face; and the
question, “Shall we obey God or man?” is that which they are now called
upon once more to answer.
The whole conduct of the resistance in which we are now engaged to this
immoral and arbitrary law will depend upon the sincerity and depth of
the religious principle of this country. A moral and spiritual
conviction must be the heart and soul of our present movement. Already
it is proved to be so, and will be more fully proved ere the struggle be
ended. Already that revival of moral faith, the simultaneousness of
which with the rapid advances of a materialistic creed rests upon the
promise of God himself, is beginning to prove its force as the most
potent agency for political reform. Already it is gathering into a
compact company the grave, the virtuous, the religious throughout the
land.
It would be unseasonable at the close of this Essay for me to approach
that difficult question which must needs, at times, trouble the minds of
thoughtful persons who try to read the tendencies of the age; I mean the
subtle connection between democracy and despotism—the tendency of
democratic nations to combine the idea of a strongly centralized,
ubiquitous, and omnipotent government with that of the sovereignty of
the people, a combination which, when fully realized, makes every man
willing to put himself in leading-strings, because it is not a person,
nor a class of persons, but the people at large that holds the end of
his chain; but before closing these remarks I venture to address a word
of caution to my readers among the working classes who are electors.
There are persons of birth, of station, spoiled, it may be, by the long
inheritance of privilege, who hate the Constitution because of the
barriers which it places between themselves and the accomplishment from
time to time of certain arbitrary designs, and because in general, in a
noble degree, it is no “respecter of persons.” On the other hand, there
are men—and among them are some who loudly profess to be the people’s
friends—who _despise_ the Constitution, and who see without a regret the
invasion of its fundamental principles,—principles which they affect to
believe are obsolete. When, therefore, the time comes, once and again,
for you to look around you to select men to represent you in Parliament,
and when gentlemen come forward professing the Radical principles which
the majority of you uphold, pause for a moment! for among these
professors there are some such as those to whom I allude, who despise
the Constitution. Myself a Liberal, and an admirer of republican[102]
institutions, I venture to advise you to regard this class of political
aspirants with extreme suspicion. Withhold from them your confidence
until you have thoroughly sounded their principles. Those to whom I
allude are for the most part young men, or men at least characterized by
that immaturity of judgment which is not the exclusive attribute of
youth. They talk loudly of a future Republic, while they are at heart,
though it may be unconsciously so, the prophets and devotees of the
despotism of the future—that despotism which may consist with
democratical institutions, and which may prove to be the most terrible
of all tyrannies. You will scarcely fail to detect this tendency in the
conversation of these men, who sometimes possess more of University
cultivation than knowledge of the Constitution of England or experience
of life. You will hear them speak with approbation of the most sweeping
and compulsory measures; you will find them betraying a contempt for
individual freedom, and a readiness to sacrifice the rights of persons,
however sacred, to the interests of the “sovereign people,” represented
by an arbitrary, centralized, imperial government. Sheltered under the
idea of the sovereignty of the people, they find it possible to foster
many a project destructive of individual freedom. It is to be feared
that when such persons come into positions of power they will carry out
these tendencies into practice. Adopting all the institutions of a
democratical community as their basis, thereby appealing to your
sympathy and winning your confidence, they will (not wilfully perhaps,
but through a natural love of domination, or from mere thoughtlessness
and immaturity of mind)[103] contribute to reduce their republic of the
future to that state of society described by De Tocqueville—a man who
fully acquiesced in and sympathized with the republican development of
his day, but saw its dangers. “The supreme power in such a democracy,”
he says, “extends its arm over the whole community; it covers the
surface of society with a network of small complicated rules, minute and
uniform, through which the most original minds and most energetic
characters cannot penetrate to rise above the crowd. The will of man is
not shattered, but softened and made weak; such a power does not
destroy, but it prevents existence; it does not tyrannize, but it
compresses, enervates, extinguishes, and stupifies a people; ... it
every day renders the exercise of the free agency of man less useful and
less frequent; it circumscribes the will within a narrower range, and
gradually robs a man of all the uses of himself.—I think,” he says
elsewhere, “that the species of oppression by which democratic nations
are menaced is unlike anything which before existed in the world: our
contemporaries will find no prototype of it in their memories.... I have
been led to think that the nations of Christendom will perhaps
eventually undergo some sort of oppression like that which hung over
several of the nations of the ancient world.”[104] A Greek sage observed
long ago that the strongest oligarchies are those which in themselves
were democratical. The possibility of such a future despotism need not
however be regarded with dread by a people long trained to freedom, and
watchful for the interests of all. I believe that we may escape
subjection to this despotism of the future, which is shadowed forth in
the crude and anomalous theories of the politicians to whom I have
alluded, by holding fast those very principles by the strength of which
our people have been enabled so happily in times past to resist
monarchical aggressions. The vital source for the nourishment of those
principles is a deep conviction of the Divine government of the world,
and of the worth of every soul created by God. “If,” says De
Tocqueville, “amongst the opinions of a democratic people any of those
pernicious theories exist which inculcate that all perishes with the
body, let the men by whom such theories are professed be marked as the
natural foes of such a people. The Materialists are offensive to me in
many respects; I am disgusted at their arrogance. If their system could
be of any utility to man, it would seem to be by giving him a modest
opinion of himself. But these reasoners show that it is not so; and when
they think they have said enough to establish that they are brutes, they
show themselves as proud as if they had demonstrated that they are
gods.”[105] We have lately seen this arrogant materialism culminate in a
temper of mind well expressed by one of the writers in the organ of the
fashionable London Clubs, where, treating of that large class of persons
of various shades of character who are brought under the Contagious
Diseases Acts, he says these women ought to be “treated as foul sewers
are treated, as physical facts and not as moral agents.” Sewers have
neither souls nor civil rights; by admitting into their political theory
the idea that any class of human beings whatever may be reduced to the
level of an inanimate nuisance for political purposes, these writers
have demonstrated to us very clearly the intimate connection between a
gross materialism and the most cruel and oppressive despotism. The men
who speak thus, and who act in harmony with their utterances, do not
believe that the beings of whom they speak have souls; to them any
regenerating influence from a Divine source upon the spirit of man or
woman is inconceivable. It is needless to indicate more particularly the
natural and close alliance between this materialism and the coercive and
oppressive policy which such materialists, though frequently professing
radicalism, will readily adopt, merely transferring the power of the
deprivation of civil and human rights from the hands of a monarch or a
hereditary aristocracy into those of official experts who will be the
elect of a fully enfranchised people, and therefore more dangerously
confided in by the people. In order that we may avoid such a future
despotism having its root deeply laid in a materialistic creed, we
need—and a merciful God will grant it—for each individual, and for the
nation at large, a fuller measure of that light of the conscience, and
that life of the spirit which will enable us to discern with clearness
and to tread with perseverance that path which leads to the goal whither
the hopes of the human race are ever tending.
The following are the editions of some books consulted:—
De Tocqueville’s _Democracy in America_. Third edition. Saunders and
Otley.
Blackstone’s Commentaries. Thirteenth edition, with Christian’s Notes.
De Lolme on the Constitution. Second edition. Wilkie and Robinson.
Creasy on the Constitution. Eighth edition. Bentley.
Guizot’s Causes of the Success of the English Revolution. Murray.
APPENDIX A.
De Tocqueville says on Jury Trial, “To look upon the jury as a mere
judicial institution, is to confine our attention to a very narrow view
of it; for however great its influence may be upon the decisions of the
law courts, that influence is very subordinate to the powerful effects
which it produces on the destinies of the community at large. The jury
is above all a political institution, and it must be regarded in this
light to be fully appreciated.
“The institution of the jury may be aristocratic or democratic,
according to the class of society from which the jurors are selected;
but it always preserves its republican character, inasmuch as it places
the real direction of society in the hands of the governed, or of a
portion of the governed, instead of leaving it under the authority of
the Government.... The true sanction of political laws is to be found in
penal legislation, and if that sanction be wanting, the law will sooner
or later lose its cogency. He who punishes infractions of the law is the
real master of society. Now, the institution of the jury raises the
people itself, or at least a class of citizens, to the bench of judicial
authority. The institution of the jury consequently invests the people,
or that class of citizens, with the direction of society.... The jury
serves to communicate the spirit of the judges to the minds of the
citizens; and this spirit, with the habits which attend it, is the
soundest preparation for free institutions.”[106] Thus, while in England
we are gradually allowing the institution of the jury to fall into
disuse, we are making the central executive the real master of society,
and while we imagine we are advancing towards a more strongly republican
character, we are in fact retrograding towards imperialism.
APPENDIX B.
In the Act passed 6th August 1861, “To consolidate and amend the statute
law of England and Ireland relating to larceny and other similar
offences,” 24 and 25 Victoria, chapter 96, there is, by clause 110, an
appeal allowed in summary cases as follows:—
24 and 25 Vict. ch. 96, s. 110—“In all cases where the sum adjudged to
be paid on any summary conviction shall exceed five pounds, or the
imprisonment adjudged shall exceed one month, or the conviction shall
take place before one justice only, any person who shall think himself
aggrieved by any such conviction may appeal to the next Court of General
or Quarter Sessions, which shall be holden not less than twelve days
after the day of such conviction, for the county or place wherein the
cause of complaint shall have arisen; provided that such person shall
give to the complainant a notice in writing of such appeal, and of the
cause and matter thereof, within three days after such conviction, and
seven clear days at the least before such Sessions, and shall also
either remain in custody until the Sessions, or shall enter into a
recognizance with two sufficient sureties,” etc. etc.
This appeal clause is identical with that in 24 and 25 Vict. c. 97, and
continually repeated in other Acts of Parliament, as, for instance, in
the one against brawling in church, etc. etc. It will be seen therefore
that the absence of a right to appeal from the conviction by the justice
of the peace under the Contagious Diseases Acts is a peculiar harshness
of these Acts, as contrasted with general criminal Acts.
It appears from the “Criminal Law Amendment Acts,” 24 and 25 Vict. c.
96, 97, and 100, that the largest fine that can be inflicted by a
justice of the peace is £50, which large fine can apparently be
inflicted only in one case, viz., that of wounding deer (see c. 96, s.
12). Generally the limiting fine is £20 or £5. The greatest punishment
mentioned in these Acts, as assignable by a justice of the peace, is
_six months’ imprisonment_. Now, under the Contagious Diseases Acts
(clause 7, Act 1869) the woman can be imprisoned in hospital for _nine
months_. (By clause 24, Act 1866, the period during which she could be
thus imprisoned was limited to six months, but was extended to nine
months by clause 7, Act 1869. This extension, in common with many other
features, shows the insidious character of these Acts.)
In addition, therefore, to the fundamental and absolute points of
difference mentioned in the text of this Essay, these Acts differ from
all previous Criminal Acts—1st, In inflicting a longer imprisonment on
summary conviction; and 2d, In not permitting the appeal allowed under
other Criminal Acts.
-----
Footnote 1:
_English Constitution_, p. 2. (Eighth edition. Bentley.)
Footnote 2:
Speech of the Earl of Chatham on the exercise of the Judicature in
matters of Election, 1763.
Footnote 3:
Lord Chatham’s Speeches.
Footnote 4:
_English Constitution_, p. 148.
Footnote 5:
_Middle Ages_, chap. ii. p. 324.
Footnote 6:
_Ibid._
Footnote 7:
_Ibid._
Footnote 8:
De Lolme on the Constitution, p. 28.
Footnote 9:
Coke on Magna Charta.
Footnote 10:
_English Constitution_, p. 150.
Footnote 11:
_English Constitution_, p. 151.
Footnote 12:
Mittermaier.
Footnote 13:
Montesquieu, _Esprit des Lois_, xii. 2.
Footnote 14:
_Civil Liberty and Self-Government_, p. 54.
Footnote 15:
_English Constitution_, p. 382.
Footnote 16:
_History of his Own Times._
Footnote 17:
Sir Charles Trevelyan, in _Good Words_ of January 1, 1871, says—“It is
well that the ladies of England have protested against their sex being
recognised by Parliament as a _corpus vile_ for the indulgence of
irregular lust. If it were possible for them to explain the real
extent of the outrage upon womanhood, there would be one universal cry
for repeal throughout the land.”
Footnote 18:
De Lolme on the Constitution, p. 354.
Footnote 19:
See Coke, p. 50, on Magna Charta. He says, “Nisi per legem terræ,” but
by the law of the land. For the true sense and exposition of these
words see the Statute of 37 Edward III. cap. 8, where the words ‘but
by the law of the land’ are rendered ‘without due process of law;’ for
there it is said, though it be contained in the great charter that no
man is to be taken, imprisoned, or put out of his freehold without
process of law, that is, without indictment or presentment of good and
lawful men, where such deeds be done in due manner, or by writ
original of common law, etc. In 28 Edward III. ch. 3, the words are
rendered “without being brought in to answer but by due process of the
common law.”
Footnote 20:
Coke’s _Institutes_, p. 50.
Footnote 21:
From this we may expect, following out the Contagious Diseases Acts,
that a new office under Government will be created analogous to the
Bureau de Mœurs in Paris, and that we shall ere long have a Secretary
of State for the regulation of vice.
Footnote 22:
“Touching the business of martial law, these things are to be
observed, viz.—_First_, that in truth and reality it is not a law, but
something indulged rather than allowed as a law. The necessity of
government, order, and discipline in an army, is that only which can
give those laws a continuance: ‘quod enim necessitas cogit defendit.’
_Secondly_, This indulged law was only to extend to members of the
army, and never was so much indulged as intended to be executed or
exercised upon others. For others who are not listed under the army
had no colour or reason to be bound by military constitutions
applicable only to the army, whereof they were not parts. But they
were to be ordered and governed only according to the laws to which
they were subject.”—Hale’s _Common Law of England_, vol. i. p. 54.
“The Admiralty Court is not bottomed or founded upon the authority of
the civil law, but hath its power and jurisdiction in such matters as
are proper for its cognizance. The Court of Admiralty has no
jurisdiction of matters or contracts done or made on land; and the
true reason for their jurisdiction in matters done at sea is because
no jury can come from thence.”—_Ibid._ p. 51.
Footnote 23:
Under Act 1866 the police are defined to mean “Metropolitan police, or
other police or constabulary authorized to act in any part of any
place to which this Act applies.”
Act 1868 was especially passed for the sole reason of substituting in
Ireland “any policeman duly authorized,” instead of “the
superintendent of police.”
Footnote 24:
20. If in any such examination the woman examined is found to be
affected with a contagious disease, she shall thereupon be liable to
be detained in a certified hospital, subject and according to the
provisions of this Act, and the visiting surgeon shall sign a
certificate to the effect that she is affected with a contagious
disease, naming the certified hospital in which she is to be placed,
and he shall sign that certificate in triplicate, and shall cause one
of the originals to be delivered to the woman, and the others to the
superintendent of police.
21. Any woman to whom any such certificate of the visiting surgeon
relates may, if she thinks fit, proceed to the certified hospital
named in that certificate, and place herself there for medical
treatment; but if, after the certificate is delivered to her, she
neglects or refuses to do so, the superintendent of police, or a
constable acting under his orders, shall apprehend her and convey her
with all practicable speed to that hospital, and place her there for
medical treatment, and the certificate of the visiting surgeon shall
be sufficient authority to him for so doing.
22. Where a woman certified by the visiting surgeon to be affected
with a contagious disease places herself, or is placed as aforesaid,
in a certified hospital for medical treatment, she shall be detained
there for that purpose by the chief medical officer of the hospital
until discharged by him by writing under his hand.
The certificate of the visiting surgeon, one of the three originals
whereof shall be delivered by the superintendent of police to the
chief medical officer, shall, when so delivered, notwithstanding that
she is for that purpose removed out of one into or through another
jurisdiction, or is detained in a jurisdiction other than that in
which the certificate of the visiting surgeon was made, shall be
sufficient authority for such detention.
26. Every woman conveyed or transferred under this Act to a certified
hospital, shall, while being so conveyed or transferred thither, and
also while detained there, be deemed to be legally in the custody of
the person conveying, transferring, or detaining her.
Footnote 25:
_De laudibus legum Angliæ_, p. 53.
Footnote 26:
Blackstone, Bk. iii. p. 38.
Footnote 27:
The Act upon this point was very clearly defined by Mr. Bennett, an
eminent solicitor, in a case tried at the Duke of Cornwall Hotel,
Plymouth, which entirely turned on the fact that _suspicion_ alone in
the policeman’s mind justified his action, and that, further, he was
not bound, when called on, to give the reasons of this suspicion.
Footnote 28:
Blackstone, Book iii.
Footnote 29:
M. Le Cour says that in Paris false accusations, by anonymous letters
and otherwise, amount to several hundreds a week.
In the case at Plymouth already alluded to, Inspector Annis of
Plymouth being asked by Mr. Rooker, a magistrate, “Have you ever got
anonymous letters accusing women?” replied, “We get lots of them.”
Footnote 30:
On the occasion of the trial of a young girl under these Acts in a
certain town of Kent, a full bench of magistrates was assembled. She
was condemned to a month’s imprisonment, and on leaving the court
remarked, “I did find it rather hard that the gentleman on the bench
who gave the casting vote for my imprisonment had paid me five
shillings the day before to go with him!”
Footnote 31:
Creasy’s _Constitution_, pp. 225 and 227.
Footnote 32:
De Lolme, p. 171.
Footnote 33:
Blackstone, Book iii. p. 378.
Footnote 34:
Blackstone, Book iii. p. 379.
Footnote 35:
See Appendix A, p. 179.
Footnote 36:
Lieber in his work on Civil Liberty remarks that lawyers have rarely
been the promoters of reform in the laws: he excepts “the immortal Sir
Samuel Romilly” and a few others.
Footnote 37:
It is thus worded in the Charter of Henry III.
Footnote 38:
_English Constitution_, p. 204.
Footnote 39:
Blackstone, vol. i. p. 145.
Footnote 40:
Blackstone, Book iv. chap. 20.
Footnote 41:
Professor Sheldom Amos writes on this subject:—“The proceedings
contemplated by the Contagious Diseases Acts have been placed among a
large and rapidly growing class of proceedings only technically
criminal, and instituted for quasi-moral, sanitary, fiscal, or general
police purposes. To this class belong cab-regulations, regulations in
respect of the cattle-plague, regulations for preventing nuisances in
the way of obstructions in the street or on the pavement, regulations
in the way of railway bye-laws for securing the safety of passengers,
etc. The actions endeavoured to be prevented by the class of laws here
involved are not crimes in the sense of being in themselves morally
reprehensible, still less abominable, but they are crimes so far as
they are absolutely forbidden by the State, and the punishment and
prevention of them is undertaken by the State through its own
officers. This class of Acts has been very much multiplied of late
years, and the proceedings with respect to them are always in the
first instance before one or two magistrates. Some of the proceedings
are ‘summary;’ that is, the magistrate can assign the punishment at
once without appeal; others are summary only in the sense that the
magistrate can, if the accused consent, assign the punishment at once,
but the case can be reserved for Quarter Sessions and for jury trial
in the event of the accused being able to find securities for his
appearance. Thus, you see that the claim to jury trial is already
practically obsolete for all offences not of such kind as theft,
robbery from the person, murder, assaults, treason, forgery, and such
like atrocious forms of wrong-doing. The proceedings under the
Contagious Diseases Acts are placed among the first of the classes
above described, that is, summary proceedings without appeal. I think
with you that the extension and multiplication of such Acts and
proceedings is a grave constitutional peril, as I have said
elsewhere.” Let the reader compare the grave cases tried under the
Contagious Diseases Acts with the quasi-moral, sanitary, and fiscal
cases adverted to above, and let him mark the conclusions to which the
framers of these Acts are inevitably driven through having placed
these cases on this category. On the one hand, if, as some of our
opponents say, these Acts are directed against vice, and are for the
discouragement of the sin of prostitution, then, as we have seen,
their framers are guilty of a violation of the constitution by placing
cases of real criminality, involving severe penalties, on the list of
summary proceedings in which there is no appeal. But if, as by far the
greater number of our opponents affirm, these Acts do not treat
prostitution as criminal, and these cases properly belong to the
category above cited, then to what an awful moral conclusion are they
driven on the other hand! To exact an exorbitant fare or to drive
recklessly in the streets is a legal offence in a cabman; but to take
a fare within prescribed limits and to drive in the streets is no
moral offence at all. The same kind of argument holds true of all the
technical offences created by the Acts of Parliament above alluded to.
It is the exceeding of a certain limit (thereby causing inconvenience
to society) which constitutes the legal offence under these economic
regulations. But in the Contagious Diseases Acts the case is wholly
different. Prostitution itself is morally criminal. The State—placing
the Contagious Diseases Acts on the category of merely economical
regulations—makes the crime dealt with under them to consist in acting
as a prostitute _when out of health_. It says to the trader in sin,
“You are guilty, unless you pursue this trade under certain conditions
prescribed by Act of Parliament,” thus plainly implying, “You are not
guilty so long as you ply your trade in compliance with the conditions
imposed by our Act,”—hence the fearfully immoral influence of such a
law upon the people at large! Whatever may be said, on the ground of
expediency, against certain recent Acts of Parliament, it can never be
said that their influence is _directly_ immoral, for the technical
definition by the State of the crime treated in these cases does not
involve the recognition of the lawful and innocent character of
actions in themselves vicious, condemned by God’s Word, and ruinous to
society; finally, it is clear that little or no injury to character is
incurred by a false accusation under these economical Acts, whereas a
false accusation under the Contagious Diseases Acts is ruinous.
Footnote 42:
The practical working of this Act turns upon the voluntary submission.
The clauses which refer to this are as follows:—
Act 1866, clause 17.— “Any woman, in any place to which this Act
applies, may voluntarily, by a submission in writing, signed by her in
the presence of, and attested by, the superintendent of police,
subject herself to a periodical medical examination under this Act for
any period not exceeding one year.”
Act 1869, clause 6.—“Where any woman in pursuance of the principal Act
(1866) voluntarily subjects herself by submission in writing to a
periodical medical examination under that Act, such submission shall,
for all the purposes of the Contagious Diseases Acts 1866 to 1869,
have the same effect as an order of a justice subjecting the woman to
examination, and all the provisions of the principal Act respecting
the attendance of the woman for examination, and her absenting herself
to avoid examination, and her refusing or wilfully neglecting to
submit herself for examination, and the force of the order subjecting
her to examination after imprisonment for such absence, refusal, or
neglect shall apply and be construed accordingly.” If a woman do not
desire to sign the voluntary submission, the process under the Acts is
that in conformity with the clause 4, Act 1869, already cited, she
shall be summoned before a justice, by whom the question as to her
being a prostitute or not is first to be tried, and then if he is
satisfied that she is such, she is ordered for examination. It is not
until after this process of law, and until she has absented herself
wilfully from the examination thus ordered, that there are any penal
consequences. (See clause 28, Act 1866, quoted below.) The arbitrary
character of the offices to which the carrying out of these Acts is
intrusted is to be seen from the orders given by the War Office to the
policeman, with respect to the voluntary submission, one of which
orders is as follows:—“_Should any woman object to sign, she is to be
informed of the penal consequences attending such refusal_, and the
advantages of a voluntary submission are to be pointed out to her.”
_Now, there are no penal consequences legally attending such a
refusal_; on the contrary, _penal consequences attend signing_: and
the War Office here utterly ignores all the process of law which
intervenes between the accusation of the woman, under clause 16, Act
1869, and the penal consequences which, according to clause 28, Act
1866, may under certain circumstances ensue. Perhaps nothing could be
such a striking comment as this on the utterly flimsy character of the
whole process of law to which the woman is subjected. The War Office
has here leapt at once from the suspicion of a policeman to the
woman’s condemnation, as if the suspicion of a policeman alone were
sufficient proof of her being a prostitute. Indeed, under the Act it
seems fundamentally to be assumed that policemen are infallible judges
as to whether a woman is chaste or not.
Footnote 43:
The form of the voluntary submission is as follows:—“I —— voluntarily
subject myself to a periodical medical examination by the visiting
surgeon for —— calendar months.” In order to put it more plainly
before the reader, let him imagine some petty misdemeanour, such as
petty theft or disorderly conduct,—let him imagine a paper of a
self-criminating character put before the accused, wherein he signs
words to this effect: “I —— submit myself to (here mentioning some new
form of punishment, which shall include the public registration of his
calling as a thief or a drunkard) for —— calendar months.” Where is
here the desirable expediting of justice? and where is here the
“benevolent motive of setting the culprit, after a brief punishment,
free to start a new life”?
Footnote 44:
When the gross nature of the outrage involved in the examination
becomes known to them, many refuse to sign the voluntary submission a
second time, and have to be taken before a magistrate.
Footnote 45:
See Chapter v.
Footnote 46:
Not only is the case treated summarily under the Contagious Diseases
Acts, and thus the safeguard of jury trial taken away, but even the
safeguards which are generally allowed in summary cases are taken
away. In other summary cases, where the imprisonment adjudged shall
exceed one month, there is the right of appeal to the general or
quarter sessions (see Appendix). But even this appeal is not allowed
under the Contagious Diseases Acts, although (see clause 7, Act 1869,
and clause 26, Act 1866) the woman may be imprisoned for nine months,
and (see clause 28, Act 1866) may be imprisoned for three months with
hard labour.
Footnote 47:
Blackstone, Book iii. p. 367.
Footnote 48:
If the reader will in the following speech substitute the words
“Contagious Disease” for “Smuggling,” and make several consequent
alterations, he will find that this address stands as that of a man
rising from the dead to plead on our behalf.
Footnote 49:
Compare with this, clause 4, Act 1869, where information is to be
lodged against a woman of whom the policeman has “good cause to
believe” that she has been “outside of those limits _for the purpose_
of prostitution.” The reader will observe that the policeman here has
not suspicion necessarily of any act perpetrated, but merely he has
suspicion that this woman harbours in her breast a certain intention.
Footnote 50:
If Lord Hardwicke could use this language in respect to the danger
which every honest man was subjected by a law directed against
smugglers only, how much more are we justified in saying that every
woman encounters dangers of as grave a kind by the existence of a law
directed against unchaste women?
Footnote 51:
Only _one_ witness is required under the Contagious Diseases Acts.
Footnote 52:
How easily an innocent action may be misconstrued under the Contagious
Diseases Acts may be seen by the evidence of Mr. Parsons, an examining
surgeon under these Acts, who when examined by the Parliamentary
Committee as to his definition of a prostitute (there being none under
the Acts), defined it as “any woman whom there is fair and reasonable
grounds to suspect to be _going_ to places which are the resort of
prostitutes, and at times when immoral persons are out,” and added,
“It is a matter of _mannerism_ more than anything else.”
Footnote 53:
The only witness required under the Contagious Diseases Acts is the
paid spy.
Footnote 54:
A woman may be detained for nine months at a time in hospital, on
evidence given by the hospital surgeon only (see clause 22, Act 1866,
and clause 7, Act 1869); and the hospital authorities, whose servant
he is, receive £30 a year for every bed which is filled.
Footnote 55:
If the difficulty of proving innocence in this case be so great, we
may consider the difficulty much greater for a woman to prove, not
only that she had no intention of an evil nature, but that she is in
fact a chaste woman. It has been said that it is impossible even for
Diana herself to prove her own chastity.
Footnote 56:
In a recent pamphlet, one of the supporters of the Contagious Diseases
Acts says of the women, “No _crime_ is laid to their charge!” See
Lane’s answer to Duncan M‘Laren.
Footnote 57:
This is precisely what we say of the Acts which we oppose.
Footnote 58:
The malicious whisper of a single man, under the Contagious Diseases
Acts, may destroy the character of a woman. A gentleman who lately
visited Paris was sitting in the boulevards with a young Frenchman,
who, observing a great many young women passing, remarked to his
English companion, “I could have any one of these sent to prison
to-morrow by a single word to the inspector of police.”
Footnote 59:
Let the reader compare this with the description of the state of Paris
given by M. Le Cour himself, the Prefect of the Police Médicale. There
is a staff of special police appointed for the “surveillance” of the
public women. It is a post which is despised by the more respectable
men who take the office of regular police. These women-hunters or
“Mouchards” are intrusted with large and arbitrary powers for hunting
down and imprisoning these women. What is the effect? Is prostitution
thereby restrained? I quote Le Cour’s own words (_Prostitution in
London and Paris_, 1789–1870, by M. Le Cour):—“These public women are
everywhere, in the drinking shops, the music saloons, the theatres,
the balls; they haunt the public establishments, the railway stations
and carriages, they push respectable women off the pavement, they roll
in carriages, they frequent the Bois de Boulogne, they plant
themselves outside every coffee-house, they drive slowly along the
footpaths, there is a place by the lady’s side which she seems to
offer to the passer-by; there are hotels which freely open their doors
to them at any hour if they do not come alone.” As with the French
smugglers spoken of by Lord Hardwicke, the rigour under which they
lived gave rise to an _esprit de corps_ which enabled them to brave
the authorities, so do the most vicious persons in Paris band
themselves together as a compact community to defy authority. To quote
Le Cour again: “Panderers are numerous at Paris, where they find more
than anywhere else in the world the opportunity of practising their
manœuvres and escaping the attention of the authorities. They keep
registrary offices and restaurants, they sell articles for the toilet,
millinery, gloves, or perfumes, and they constitute true snares for
all young girls who are engaged as workwomen and employées.” Mme.
Daubie also says in her book, _La Femme Pauvre_, that panderers and
procurers band themselves together in such a compact _corps d’élite_
that they are able to engage the best houses in the city on the best
terms, and to oppose any measures adopted by the authorities which may
seem to be unfavourable to their abominable traffic.
Footnote 60:
Compare this with the _Saturday Review_ and _Pall Mall Gazette_
remarks about “shrieking sisterhoods.”
Footnote 61:
_Parliamentary History_, vol. ix. p. 1253.
Footnote 62:
It had been urged that the customs could not be collected unless the
Bill against smugglers was passed.
Footnote 63:
It would seem that Parliament is not now independent of the permanent
Officers of State, as, for instance, the authorities at the Horse
Guards.
Footnote 64:
Compare this with what Blackstone says when speaking of the operations
of just law being necessarily slow; that arises, says he, from
“liberty, property, civility, commerce, and an extent of populous
territory, which whenever we are willing to exchange for tyranny,
poverty, barbarism, idleness, and a barren desert, we may then enjoy
the same despatch of causes as is so highly extolled in some foreign
countries.”
Footnote 65:
The pretence of the Contagious Diseases Acts may be reckoned as the
lowest possible pretence, for it is that of attempting to preserve a
man from the bodily inconveniences attending vicious habits, which by
his own will he could avoid.
Footnote 66:
Speech delivered by Lord Chatham on the 20th November 1777.
Footnote 67:
If they had adopted the former definition without reserving this power
of arbitrary omission, this law would have told too heavily upon the
great; but even supposing that virtue might have continued to wink
even under this law, still oblivious to them, and might have
continued, as doubtless it would, to regard that as pardonable frailty
in high life which is called prostitution among the humbler classes,
yet there are others who, under this law, might have been too
conveniently assailed; for policemen, examining surgeons, nay even
sometimes justices of the peace, may not be unacquainted with
temporary connections with that mistress, their appreciation of whose
faithfulness makes them dread for her the severity of such a
definition.
Footnote 68:
This appearance before the justice is only in case of disobedience to
the Acts. In the first and all-important process of determining
whether the woman be moral or vicious, not 10 per cent. of the women
ever see the face of their judge, who condemns them on the hearsay
evidence of the spy alone!
Footnote 69:
So anxious has our Legislature ever been to establish mercy even to
convicted offenders, as a fundamental principle of government, that
they made it an express article of that great public compact framed at
the era of the Revolution—the Bill of Rights—that “no cruel and
_unusual_ punishments” should ever be enforced (see Bill of Rights,
art. x.). They even added a clause for that purpose to the oath which
kings and queens were thenceforward to take at their coronation, thus
endeavouring to render it an everlasting obligation to English
monarchs to make justice “to be executed with mercy.” In the same
spirit they availed themselves, not only of the crisis of the
Revolution, but of every important occasion, to procure new
confirmations to be given to the right of trial by jury, and in
general to the purity and integrity of our system of criminal
jurisprudence. A curious debate took place in Parliament in 1605 (see
Parliamentary Hist., vol. v.) on a proposal to introduce some unusual
form of punishment for certain criminals. The motion was very speedily
rejected. I find in some ancient books on law, that even in the
execution of the “peines fortes et dures,” regard was to be had to
_decency_. A harrowing narrative of bodily pains, inflicted in order
to urge the victim to confession, ends with the injunction to stop
short of personal indecency towards him or her; this last agony was
seldom inflicted, and only under the most oppressive tyranny, and by a
cruel and shameless executive. It is impossible to dwell further on
this subject; nor can one read such records without a burning shame on
account of the degeneracy in this particular of our own times. It will
be a sad day for Her Majesty when she wakes up to the full knowledge
of the fact that she—a woman, a gracious and virtuous woman—has signed
away with her own hand the liberties of a vast multitude of her
subjects in a more complete fashion than has been attempted since the
days of the Stuarts, and that she has unwittingly sanctioned deeds
which make the heart of womanhood to freeze with horror.
Footnote 70:
Trial of John Wilkes, A.D. 1763.
Footnote 71:
Lieber, vol. i. p. 56.
Footnote 72:
“Trial itself,” says Lieber (vol. i. p. 182), “though followed by
acquittal, is a hardship.” It is a peculiar hardship in the case of an
accusation against a woman’s honour, which, even where satisfactorily
disproved, generally imposes a greater or less social stigma on the
person falsely accused. Yet this disproval is all but impossible.
Footnote 73:
The imprisonment inflicted under clause 28, Act 1864, falls upon those
women who have any spark of modesty or virtue left, and may drive it
out of them.
Footnote 74:
Compare this with the indiscriminate herding together of the women
under the Acts in the examining-house.
Footnote 75:
Poor women in the subjected districts have said to me: “_Pretty_ girls
get off far more easily than plain ones.”
Footnote 76:
_English Constitution_, p. 372.
Footnote 77:
_Ibid._ p. 374.
Footnote 78:
_Commentaries_, p. 373.
Footnote 79:
See Dr. Lyon Playfair’s speech in the House. See also Lane’s pamphlet,
p. 15. See also the Report of the Committee of the House of Commons,
from which we make the following extract:—
“116. _Question_—Do you know of your own knowledge whether it is not
the case that attempts to reform these women by approaching them with
direct moral and religious advice, while they are pursuing their
avocation, are generally unsuccessful? _Answer_—It is almost always
inoperative.
“117. I suppose it has been attempted at Devonport by clergymen and
others?—Very constantly.”
The effrontery of this statement is almost unparalleled when we
consider the glorious but hitherto unappreciated achievements of the
various Rescue Societies.
Footnote 80:
Lane’s answer to Duncan M‘Laren.
Footnote 81:
Preface to the _Areopagitica_.
Footnote 82:
“Thoughts on the Cause of the Present Discontents.”—Burke’s _Works_,
p. 140.
Footnote 83:
With these considerations in their mind, I can conceive how safe and
comfortable the fathers of the Contagious Diseases Acts felt
themselves—no visions of a future possible repeal of this Act to
trouble them!
Footnote 84:
“I am very much afraid,” says a member of Parliament in a recent
letter, “that one cause of our weakness in fighting this battle in the
House is, that there are too many of its members who secretly like
these Acts, as making, as they think, their own immoralities less
personally dangerous to them; there are many most excellent men on
both sides, but I am afraid there are also many on whom wealth and
station have had an injurious effect, who spend their lives merely for
pleasure, and care nothing for higher considerations. This may seem
strong language, but it is, I fear, too true.”
Footnote 85:
_English Constitution._
Footnote 86:
De Lolme.
Footnote 87:
Rousseau’s _Social Contract_, chap. viii.
Footnote 88:
“Such arbitrary courses have an ill operation upon the courage of a
nation, by embasing the hearts of the people. A servile condition
does, for the most part, beget in men a slavish temper and
disposition. Those that live so much under the whip and the pillory,
and such servile engines as were frequently used by the Earl of
Strafford, they may have the dregs of valour, sullenness, and
stubbornness which may make them prone to mutinies and discontents.
Shall it be treason to embase the king’s coin, though but a piece of
twelve pence, or six pence? and must it not needs be the effect of a
greater treason to embase the spirits of his subjects, and to set a
stamp and character of servitude upon them whereby they shall be
disabled to do anything for the service of the king and
commonwealth?”—Pym’s Speech on the Trial of the Earl of Strafford.
Footnote 89:
In a letter to the _Lancet_, a gentleman signing himself Stanley
Haynes, M.D., suggests that the Government should erect vast
establishments, to which “all persons ill with scarlatina, measles,
roseola, variola, varicella, relapsing fever, typhus, enteric, or
yellow fevers, diphtheria, pertussis, or cholera,” should be conveyed
in spite of any remonstrances or resistance to the contrary; such
establishments to be for all classes, and the removal of the patients
to be insisted on, “whenever the medical officer of health is
satisfied that isolation and disinfection will not be complete at
home,”—even in this latter case the sick-rooms at home to be entered
only by persons authorized by an officer of health. The writer says
that this system “would be equal to the beneficial extension of the
Contagious Diseases Acts to eruptive, continued, and mucous fevers.”
He suggests that “much opposition would undoubtedly be roused by
parents and others,” but that may be in time overcome, as the
opposition to the Contagious Diseases Acts is to be overcome, by
custom, and education to the system. This scheme, which reads like a
grim parody of the Contagious Diseases Acts, is indorsed by the
_Lancet_, which speaks of the “importance” of Dr. Haynes’s letter.
In recent numbers of the _Lancet_ there has been a correspondence on
the desirableness, from the doctor’s point of view, of making it
compulsory on all women of the humbler classes, on pain of fine or
imprisonment, to be attended in childbearing by a male practitioner.
One of the correspondents says there is such a provision in the new
“Medical Bill,” but on looking through that Bill I cannot find such a
provision, unless indeed it be artfully concealed in clause 29. The
_Lancet_, it is well known, is ever the friend of compulsion and
violent centralization, abounding in such expressions as the
following:—“It is to be regretted that a well instructed and humane
government does not exercise a firmer influence over the anarchy, the
greed, the ignorance of local governing bodies. But the energetic use
of the powers given by the Sanitary Acts would enable medical men to
confer benefits on the public, the value of which defies
estimation.”—_Lancet._ These benefits conferred by medical men, be it
observed, are to be purchased at the expense of that power of
self-government, disposition to help the law, and manly independence
which, as we have seen, De Tocqueville, Montalembert, Niebuhr, Guizot,
and a host of thoughtful English writers, have attributed to a great
extent to the freedom of local governing bodies. It might be asked
further, is there no danger of anarchy, of greed, of ignorance among
medical men?
Footnote 90:
_Liverpool Mercury._
Footnote 91:
If we compare the slight penalties inflicted for cruelties practised
on women and children with those imposed for injury of property or the
wounding of a stag, the property of a Duke, we cannot wonder at the
low estimate, in England, of the worth of women.
Footnote 92:
_Commentaries_, p. 142, chap. viii.
Footnote 93:
There are many other instances in English law besides these mentioned
above, wherein the inequality of justice, as regards the two sexes, is
grossly apparent. I cannot here however dwell upon this wide and
painful subject. The following detached extracts bearing on the
subject are taken from a chapter of the work of an American writer on
“The English Common Law:”—“In the eye of the law, female chastity is
only valuable for the work it can do. The custody of children belongs
to the father; the mother has no right of control. The father may
dispose of them as he sees fit. If there be a legal separation, and no
special order of the Court, the custody of the children (except the
nutriment of infants) belongs legally to the father.” _Except the
nutriment of infants!_ here is a hint from the good God himself.
Should we not think that the first time these words were written down,
and men were compelled to see the natural dependence of the child upon
the mother—to detect the obvious laws of nurture, natural and
spiritual—the right of a good mother to her child would have made
itself clear? In reference to the inequality of the divorce laws, this
writer says—“In the late debate in Parliament on the new Divorce Bill,
when a member objected to the introduction of a clause equalizing the
relief of divorce to both sexes, he asked, ‘If this clause were
adopted, I should like to know how many married men there would be in
this House?’ He was answered by shouts of laughter! Would these men
have laughed, think you, if they had been asked how many _pure wives_
could be found in their family circles? and if _not_, would it have
been because they were capable of estimating the value of womanly
virtue? _No!_ for that man cannot estimate womanly virtue who has
never known the worth of manly purity. It would be the spectres of
illegitimacy and social ruin staring them in the face, which would
turn their lips so white! In France (says the _Westminster Review_)
fidelity on the part of a husband is considered a sort of imbecility.
What is thought of it in England? Does this scene in Parliament,
printed for all our girls to read, suggest any higher view?” “The
laughter of fools,” Solomon says, “is like the crackling of thorns
under a pot;” but that laughter in the English House of Commons was
more like what one might expect to hear—mingled with wailings—on
approaching the gates of hell.
Footnote 94:
De Lolme on the Constitution, p. 314.
Footnote 95:
Blackstone, Book i. p. 140: “Rights of Persons.”
Footnote 96:
Lord Chatham’s Speech on the case of Mr. Wilkes.
Footnote 97:
De Lolme, page 318.
Footnote 98:
Page 321.
Footnote 99:
De Lolme, page 322.
Footnote 100:
“I think with you that the extension and multiplication of such
proceedings and Acts of Parliament is a grave constitutional peril, as
I have said elsewhere. I think it of the greatest importance that the
constitutional iniquity implied in the Contagious Diseases Acts should
be fully exposed to the eyes of the whole country. It is one of the
dangers of popular government that the people lose their proper
suspicion of the executive and their reverence for constitutional
bulwarks.”—Letter from Sheldon Amos, Esq., Professor of Jurisprudence.
Footnote 101:
I may just quote further the solemn words to which the king was
compelled to give his signature, which are contained in this
guaranteeing clause of Magna Charta: “Whereas for the honour of God
and the amendment of our kingdom, and for the better quieting the
discord that has arisen between us and our barons, we have granted all
these things aforesaid; being willing to render them firm and lasting,
we do give and grant our subjects the underwritten security, namely,
that the barons may choose five-and-twenty barons whom they think
convenient, who shall take care with all their might to hold and
observe, and cause to be observed, the peace and liberties we have
granted them, and by this our present Charter confirmed; so that if
we, our justiciary, our bailiffs, or any of our officers, shall in any
circumstance fail in the performance of them towards any person, or
shall break through any of these articles of peace and security, the
said barons shall”—and here follows the account of the prosecution to
which the king agrees to submit himself.
Footnote 102:
Whether as they may exist under a limited monarchy, or, as in America,
under a President.
Footnote 103:
The celebrated Count Oxenstierna, Chancellor of Sweden, one day when
his son was expressing to him his diffidence of his own abilities, and
the dread with which he thought of ever engaging in the management of
public affairs, made the following Latin answer to him: “Nescis, mi
fili, quantulâ sapientia regitur mundus”—“You know not, my son, with
what little wisdom the world is governed.”
A young Member of Parliament, recently elected, remarked to me one
day: “When one gets into Parliament, one sees that a great nation is
after all like an old goat whom anybody may lead by the beard!”
Footnote 104:
_Democracy in America_, vol. iii. chap. 6.
Footnote 105:
_Democracy in America_, vol. iii. p. 297.
Footnote 106:
_Democracy in America_, vol. ii. p. 115.
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