CHAPTER III.

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.