APPEAL TO MAGNA CHARTA.
Josephine Butler’s publications in 1871 included _Sursum Corda_,
the substance (much expanded) of a speech delivered at the annual
meeting of the Ladies’ National Association, two _Addresses_ delivered
at Croydon and at Edinburgh respectively, and _The Constitution
Violated_, the most solid and weighty of all her utterances on the
Contagious Diseases Acts. The main argument of the last mentioned work
is given in the following pages.
The enactments called the Contagious Diseases Acts, passed respectively
in 1866 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.
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
enquire 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
well-nigh 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. “[6]
[6] Speech of the Earl of Chatham on the exercise of the judicature in
matters of election, 1763.
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.”[7] 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.
[7] _Lord Chatham’s Speeches._
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 thirty-ninth and fortieth clauses of King John’s Charter,
and the twenty-ninth of that of King Henry III, and are as follows:—
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.”[8]
Mr. Hallam calls them its “essential clauses,”[9] being those which
“protect the personal liberty and property of all freemen, by giving
security from arbitrary imprisonment and spoliation.”[10] 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. “[11] The same
powerful testimony is given by De Lolme, Guizot and De Tocqueville.
[8] Creasy, _English Constitution_, p. 148.
[9] _Middle Ages_, chap. ii, p. 324.
[10] _Ibid._
[11] _Ibid._
It is precisely these very clauses, thus endearingly eulogised by these
great historians and lawyers of various nations, which stand violated
both in letter and in principle by the Contagious Diseases Acts.
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 “or anyways destroyed,” and the
second, the words “by the law of the land,” 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 first phrase, 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, 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.” The expression in Magna Charta, “We will
destroy no one unless by the judgment of his peers,” 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 anyone
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[12] 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.”
[12] _De Lolme on the Constitution_, p. 354.
The words “by the law of the land” 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, “by the law of the land,” showed that it was illegal to
imprison him by any other method than that of jury trial.
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.”
In answer to our objections to these Acts, it is utter vanity and folly
in anyone 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.
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.”[13]
[13] De Lolme, p. 171.
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,[14] “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.”
[14] Blackstone, book iii, p. 378.
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 thirty-ninth 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 for himself and his country: Shall
we have liberty in lust, or shall we have political freedom? We cannot
retain both.
Early in 1872 the Home Secretary, Mr. Bruce, introduced a Bill to
repeal the Contagious Diseases Acts, and to substitute provisions
dealing with the subject in a different manner. Some opponents of
the Acts at first were inclined to accept this compromise, but
Josephine Butler issued a _Letter on the subject of Mr. Bruce’s
Bill_, and a leaflet entitled, _A Few Words addressed to True-hearted
Women_, in which she closely examined the measure, and showed that
it was really open to the same moral and other objections that had
been raised against the Acts which it was intended to replace. The
agitation against the Bill, which was thus roused, led to its ultimate
withdrawal. In this year also she published another pamphlet, _The New
Era_, dealing with the fight against the regulation system in Berlin,
the lessons to be learned from past failure, and the source from which
hope for the future was to be derived.
The repealers at this period took part in several by-elections,
notably that at Pontefract, when scenes of greater violence than
those at Colchester occurred, showing the fierce feelings roused by
this moral controversy. We cannot attempt to record the whole course
of the seventeen years’ struggle, to notice the separate leagues
and societies formed to oppose the Acts, the large number of public
meetings, petitions to Parliament, and other active measures taken
by the Abolitionists; but some idea of the vigour of the fight may
be gathered from the fact that in one year, 1873, over two hundred
and fifty public meetings were held, besides fifteen important
conferences, at most of which Josephine Butler took a leading part.
In spite of great encouragements now and again, we were from year to
year forced to confess that the prospect of victory was much more
distant than we at first imagined. Looking back over those years,
we can now see the wisdom of God in allowing us to wait so long for
the victory. For the mere legislative reform, or rather undoing and
repairing, which was our immediate object, was but a small part of the
great and vital movement which it was His design to create and maintain
for the purifying of the nations; and if we had obtained a speedy
triumph there would not have been that great awakening of consciences
which we have witnessed, resulting in practical and lasting reforms.
At times the struggle between opposing principles was very severe; and
hostile criticisms, censures—public and private—accusations, invective,
and bitter words fell upon us at certain crises as thickly as the
darts of Apollyon on Christian’s armour at the entrance of the dark
valley. Motives of the worst kind were sometimes imputed, among the
most frequent being that of a lurking sympathy, not with the sinners
alone, but with their most hateful sins. A certain class of our enemies
thought themselves happy, it seemed, in inventing a dart which they
believed would strike home in our own case; they sought diligently to
spread an impression that some tragic unhappiness in our married life
was the impelling force which had driven me from my home to this work,
and coarse abuse was varied by hypocritical expressions of pity and
sympathy.
But they were the most unworthy alone—the lewd fellows of the baser
sort naturally—by whom this kind of scourging was inflicted or
attempted. It only had the effect of strengthening our indifference
to all selfish, impure, and interested opposition, and of deepening
our thankfulness for the good gifts of peace and unity of heart in our
home. Such manifestations however taught us much of the deeper meanings
of these “signs of the times.” Much more serious practically was the
opposition of honourable opponents, men of education, high character
and honesty, who in some cases had openly given their names in favour
of a principle and a measure which happily many of them learned to
regard later with suspicion and abhorrence.
On May 21st, 1873, the first debate and division in Parliament took
place on our question, which had been courageously and ably pioneered
in the House of Commons by William Fowler, a member of the Society
of Friends, and which afterwards (when Mr. Fowler lost his seat for
Cambridge) was taken in hand with equal ability and courage by Sir
Harcourt Johnstone. My husband congratulated me and himself heartily on
the division. The majority against us was 137, yet he could rejoice!
And justly so, for in counting up our probable friends in the House we
had not dared to hope that we should have as many as those who actually
voted for us, viz. 128.
It was on this occasion that old Mr. Henley spoke in the House of
Commons the following solemn words (respect for his personal character
caused members on both sides of the House to listen in perfect silence,
a silence so great that though his voice was feeble all he said was
distinctly heard): “It is complained,” he said, “that this agitation is
carried on by women; but we cannot shut our eyes to the fact that women
are most affected by this legislation. We men do not know what women
suffer. Unless they tell us, we cannot know. In this matter women have
placed their feet upon the ‘Rock of Ages,’ and nothing will force them
from their position. They knew full well what a cross they would have
to bear, but they resolved to take up that cross, despising the shame.
It was women who followed Christ to His death, and remained with Him
while others forsook Him, and there are such women amongst us now.”
In a division on the question of Women’s Suffrage, which occurred about
this time, Mr. Henley, who had till then been opposed to granting the
parliamentary franchise to women, voted in favour of it, and spoke a
few very touching words. He told me, that the experience he had now
had of the injustice, which Parliament (not excluding the good men in
Parliament) is capable of inflicting on women, had convinced him that
they (women) must labour for and obtain direct representation on equal
terms with men.