CHAPTER IX.

I have now shown the grave character of the question which we are

discussing. I have stated the principles of Magna Charta which form the

basis of our Constitution, and I have pointed out how these principles

are violated by the Acts which we oppose; I have traced the pernicious

consequences arising from this violation, politically as well as

morally; and I have briefly indicated the means by which we may repair

the breach which has been made.

A question which involves not only the principles of morality but the

fundamental principles of our liberties, must be referred for its final

decision to no meaner tribunal than that of the entire people. That

people is the only tribunal competent to decide a question so vital as

this, which affects every individual in the nation, and must colour the

whole of the future internal policy of England. In retaining or

rejecting these Acts we have now to determine whether our Constitution

shall stand as it has stood hitherto, or whether it shall be changed.

This question can only be determined by that power in whose hands the

Constitution is ultimately vested. The determination of this momentous

question will involve also the fate of all that legislation the tendency

of which, during the last century, has been gradually to weaken the

Constitution through the insidious rejection in a large number of cases

of that great safeguard of our liberties, Jury Trial. Had not the way

been paved for such arbitrary Acts as those which we oppose, by the

innovations which our great constitutional lawyers have so deplored, it

would have been impossible for Parliament to have escaped arousing the

alarm of the people when it proposed this present wholesale breach of

the great principles of English jurisprudence. But the present Acts have

opened our eyes to the nature and tendency of those encroachments which

have long been silently going on among us, and we now see it to be a

strong argument against such encroachments that they should have

culminated in such an invasion of our rights. Men will carelessly

tolerate for a long time encroachments in cases of little moment, if

these encroachments tend towards the ease and expedition of justice; but

when they find that under colour of that ease or expedition, men

prompted by selfishness and fear, have made a law which hands over a

vast multitude of the people into the power of the lowest of the

executive, the real worth of our country begins to appear, and rather

than tolerate such an evil they will abolish that whole system, so far

as it relates to criminal cases, if that system can successfully be

pleaded as an excuse for such treachery on the part of our rulers.[100]

What tribunal then can decide so grave and important a national question

as this, other than the nation itself? What therefore shall we think of

a Government which, when the nation has pressed this question upon it,

has shown itself so contemptuous of the great constitutional principle

involved, as to profess to investigate the question by means of a

tribunal of twenty-six men, a considerable proportion of whom rank among

the actual framers or supporters of the Acts? Further, in what light

must it appear to us when we learn that the investigation conducted by

this tribunal is expressly to be made into the “operation and

administration” of the Acts, and that it has no other specified object?

Those who made such a limitation must surely either have been ignorant

of, or determined to override, the constitutional objections which the

nation itself has proclaimed more or less distinctly from the first;

otherwise why was not the inquiry directed at least in part to that

momentous question on which it must finally be decided?

A Royal Commission has been appointed to inquire into these Acts. What

is the subject of their inquiry? Is it whether this law be consistent

with the first principles of morality? No, for that, such a tribunal,

not being the ultimate fount of truth, is incompetent; nor, since we

have each of us direct access to the ultimate fount of truth, do we need

its verdict on this point. Is it whether this law be consistent or not

with the principles of the English Constitution? No, although into this

question inquiry might well have been made by such a body, for there are

constitutional lawyers amongst us who could not on inquiry have remained

blind to the fact of this great violation of our rights. But such an

inquiry apparently did not suit the Government; therefore, what do they

inquire into? Merely into this question, How does this double violation

of the constitution and of morality work?

Whatever, therefore, be the verdict of this Commission, it obviously

cannot affect either of these vital questions, which must be tried by

the whole nation; and the decision of this Commission, worthless if it

be for extension, is equally worthless if it be for repeal, because

these Acts, if repealed on that verdict, would then be repealed on the

ground of their unsatisfactory operation. The evil principle would not

only be left undisputed and unrebuked, but it would be practically

admitted that our constitutional privileges may again be violated should

the results of such violation be temporarily satisfactory. Therefore I

unhesitatingly venture to assert, that if the verdict of this Royal

Commission should be for repeal, it would be more hurtful to our

national interests than if it should report for extension, because, as

it must be evident, the Acts would then be repealed on the ground of

their medical inoperativeness, or the difficulty of their

administration, or for some reason short of their constitutional

iniquity, and not—as they will be when repealed by the people—on the

ground and by reason of their essential wickedness as violations of

morality and constitutional liberty. Surely it was the guardian genius

of our Constitution who so happily blinded the Government which passed

this law, as to permit it to assign and limit the grounds of this

inquiry, as it has done, and has thus led it to throw upon the people

themselves the necessity and duty, not only of repealing these Acts, but

of forcing Parliament to place on the Statute-book a lasting record of

this bitter conflict, in the form of a Statute which shall bind our

Legislature for all future ages to regard as sacred the constitutional

rights of the people, and which shall make it impossible for it again

thus to violate the Constitution.

The great restraining Statutes which exist in England have grown out of

aggressions made by those in power; and were not some unusual

aggressions periodically to call for the renewal of such restraints, our

Constitution might slip out of our hands without our being aware of it.

Such restraints as these are as necessary now as they were in ancient

times; nor will the progress of civilisation or the diffusion of

education ever preclude the necessity of such ever-renewed restraints.

For no diffusion of the ideas of liberty, no universal admission and

universal acceptance of the doctrine of personal freedom, no acuteness

of perception of the necessity of political equality for the very

existence of a State, can ever eradicate from the hearts of men those

passions and instincts which have been, in all ages and in all

countries, the cause of the destruction of liberty. For liberties are

not undermined for the sake of undermining liberties. The Constitution

is not attacked with the motive of destroying it; but in all ages and in

all countries liberties have been undermined, and constitutions have

been invaded, not for those ends directly, but for the immediate end of

some private passion or some private lust which is inconsistent with

public liberty, and which can only be gained by its overthrow.

Let me therefore press upon my readers to remember that when we have

obtained the repeal of these obnoxious Statutes, our work is then only

half done. Besides that negative action, a positive action is called

for, and means have to be taken to prevent the recurrence of such an

invasion and such a struggle. Unless this be done, we are not safe for

more than a generation. When we who have fought this battle are laid in

our graves, when at some future time those who succeed us may be less

vigilant or more enduring than we, and when at the same time men in

power may be actuated by the same ever-recurring instincts of passion

and self-interest—instincts which are always at the root of the

destruction of freedom,—then our liberties may be irretrievably lost,

and we shall be to blame for it, unless we have at the present crisis,

as our forefathers have done, placed on the records of Parliament a

solemn and binding agreement between the people and its rulers, whereby

each shall be strictly bound to conform to their respective obligations.

Guizot remarks, in speaking of the success of English revolutions:—“It

is not enough that rights should be recognised and promises made, it is

further necessary that these rights should be respected, and these

promises fulfilled; the last article therefore of the Great Charter is

especially intended to provide this guarantee. It is there said that the

barons shall elect twenty-five by their own free choice, charged to

exercise all vigilance that the provisions of the charter may never fail

to be carried into effect. The powers of these twenty-five barons (a

kind of vigilance committee) were unlimited.” If the king or his agents

allowed themselves to violate the enactments of the charter in the very

smallest particular, the barons were to denounce this abuse before the

king, and demand that it should be instantly checked. If the king did

not accede to their demand, the barons had the right, forty days after

the summons had been issued by them, to prosecute the king, to deprive

him of all his lands and castles, “the safety of his person, the queen

and his children being respected,” until the abuse had been reformed to

the satisfaction of the barons and of the whole nation.[101]

Any one who reads the History of England may judge for himself of the

wisdom of these immortal restraining Statutes called the Petition of

Rights and Bill of Rights, which were made necessary by the aggressions

and illegal actions of subsequent monarchs. And in less terrible crises

than those which called for these great confirmatory charters, it has

been invariably the habit of the English people to claim, through

Parliament, besides the redress of the wrong committed, some similar

wholesome restraining Statute, elucidating and strengthening anew that

particular part of the Constitution which may happen to have been

imperilled, and securing that similar violations shall not, in future,

be attempted with impunity. Among these may be reckoned the famous

Habeas Corpus Act, and a multitude of others which it is needless here

to recount.

It would be improper for me to conclude this Essay, in which I have

pointed out the similarity of the present crises to others in past

history, without calling the reader’s attention to one characteristic in

which these Acts of Parliament stand pre-eminent in the history of our

legislation. The tyrannical aggressions of those in power in former days

were indeed always the fruit of lust in some form or other,—greed of

gain, or personal influence, personal pleasure, jealousy, or revenge;

yet the effect of those aggressions was not so directly as in the

present case to make the people immoral. The immorality was at first at

least confined to the aggressor. He assailed the liberties only of the

subject, and in so doing struck, no doubt, more or less remotely, at the

root of public virtue; but he did not proclaim a vicious moral code in

the ears of the whole people. Now this last tyrannous aggression has

sown broadcast the seeds of an immoral principle. This is a law which

not only proceeds of evil, but immediately results in evil, by forcing a

moral iniquity upon the people. It is pre-eminently an onslaught on

morality, while it is an attack on the Constitution. Therefore in order

to oppose this great twofold evil, we need, not only the revival of all

our English patriotism, our love of freedom and of justice, but a deeper

revival still, that of the soul and of the spirit. We need a renewal of

faith in divine and eternal principles, a moral regeneration, a

practical return to the simplicity of Christ.

Guizot, in speaking of the secret of the success of the English

Revolution, says that in spite of the moral scepticism of the times “the

mass of the people remained faithful to simple Christianity,—as much

attached to their doctrines as to their liberties. The views of the

citizen, of the freeholder, and even of the peasant, soared far above

his actual condition. He was a Christian; in his family or among his

friends he boldly studied the mysteries of Divine power; what earthly

power, he asked, could be so high that he must abstain from considering

it? In the Sacred Scriptures he read the laws of God; to render

obedience to them he was forced to resist other laws; it therefore

became necessary to him to ascertain where human legislation ought to

terminate.” It is this alternative which, in a much more marked and

naked form than ever before, our citizens, our freeholders, and our

peasants are once more driven to contemplate face to face; and the

question, “Shall we obey God or man?” is that which they are now called

upon once more to answer.

The whole conduct of the resistance in which we are now engaged to this

immoral and arbitrary law will depend upon the sincerity and depth of

the religious principle of this country. A moral and spiritual

conviction must be the heart and soul of our present movement. Already

it is proved to be so, and will be more fully proved ere the struggle be

ended. Already that revival of moral faith, the simultaneousness of

which with the rapid advances of a materialistic creed rests upon the

promise of God himself, is beginning to prove its force as the most

potent agency for political reform. Already it is gathering into a

compact company the grave, the virtuous, the religious throughout the

land.

It would be unseasonable at the close of this Essay for me to approach

that difficult question which must needs, at times, trouble the minds of

thoughtful persons who try to read the tendencies of the age; I mean the

subtle connection between democracy and despotism—the tendency of

democratic nations to combine the idea of a strongly centralized,

ubiquitous, and omnipotent government with that of the sovereignty of

the people, a combination which, when fully realized, makes every man

willing to put himself in leading-strings, because it is not a person,

nor a class of persons, but the people at large that holds the end of

his chain; but before closing these remarks I venture to address a word

of caution to my readers among the working classes who are electors.

There are persons of birth, of station, spoiled, it may be, by the long

inheritance of privilege, who hate the Constitution because of the

barriers which it places between themselves and the accomplishment from

time to time of certain arbitrary designs, and because in general, in a

noble degree, it is no “respecter of persons.” On the other hand, there

are men—and among them are some who loudly profess to be the people’s

friends—who _despise_ the Constitution, and who see without a regret the

invasion of its fundamental principles,—principles which they affect to

believe are obsolete. When, therefore, the time comes, once and again,

for you to look around you to select men to represent you in Parliament,

and when gentlemen come forward professing the Radical principles which

the majority of you uphold, pause for a moment! for among these

professors there are some such as those to whom I allude, who despise

the Constitution. Myself a Liberal, and an admirer of republican[102]

institutions, I venture to advise you to regard this class of political

aspirants with extreme suspicion. Withhold from them your confidence

until you have thoroughly sounded their principles. Those to whom I

allude are for the most part young men, or men at least characterized by

that immaturity of judgment which is not the exclusive attribute of

youth. They talk loudly of a future Republic, while they are at heart,

though it may be unconsciously so, the prophets and devotees of the

despotism of the future—that despotism which may consist with

democratical institutions, and which may prove to be the most terrible

of all tyrannies. You will scarcely fail to detect this tendency in the

conversation of these men, who sometimes possess more of University

cultivation than knowledge of the Constitution of England or experience

of life. You will hear them speak with approbation of the most sweeping

and compulsory measures; you will find them betraying a contempt for

individual freedom, and a readiness to sacrifice the rights of persons,

however sacred, to the interests of the “sovereign people,” represented

by an arbitrary, centralized, imperial government. Sheltered under the

idea of the sovereignty of the people, they find it possible to foster

many a project destructive of individual freedom. It is to be feared

that when such persons come into positions of power they will carry out

these tendencies into practice. Adopting all the institutions of a

democratical community as their basis, thereby appealing to your

sympathy and winning your confidence, they will (not wilfully perhaps,

but through a natural love of domination, or from mere thoughtlessness

and immaturity of mind)[103] contribute to reduce their republic of the

future to that state of society described by De Tocqueville—a man who

fully acquiesced in and sympathized with the republican development of

his day, but saw its dangers. “The supreme power in such a democracy,”

he says, “extends its arm over the whole community; it covers the

surface of society with a network of small complicated rules, minute and

uniform, through which the most original minds and most energetic

characters cannot penetrate to rise above the crowd. The will of man is

not shattered, but softened and made weak; such a power does not

destroy, but it prevents existence; it does not tyrannize, but it

compresses, enervates, extinguishes, and stupifies a people; ... it

every day renders the exercise of the free agency of man less useful and

less frequent; it circumscribes the will within a narrower range, and

gradually robs a man of all the uses of himself.—I think,” he says

elsewhere, “that the species of oppression by which democratic nations

are menaced is unlike anything which before existed in the world: our

contemporaries will find no prototype of it in their memories.... I have

been led to think that the nations of Christendom will perhaps

eventually undergo some sort of oppression like that which hung over

several of the nations of the ancient world.”[104] A Greek sage observed

long ago that the strongest oligarchies are those which in themselves

were democratical. The possibility of such a future despotism need not

however be regarded with dread by a people long trained to freedom, and

watchful for the interests of all. I believe that we may escape

subjection to this despotism of the future, which is shadowed forth in

the crude and anomalous theories of the politicians to whom I have

alluded, by holding fast those very principles by the strength of which

our people have been enabled so happily in times past to resist

monarchical aggressions. The vital source for the nourishment of those

principles is a deep conviction of the Divine government of the world,

and of the worth of every soul created by God. “If,” says De

Tocqueville, “amongst the opinions of a democratic people any of those

pernicious theories exist which inculcate that all perishes with the

body, let the men by whom such theories are professed be marked as the

natural foes of such a people. The Materialists are offensive to me in

many respects; I am disgusted at their arrogance. If their system could

be of any utility to man, it would seem to be by giving him a modest

opinion of himself. But these reasoners show that it is not so; and when

they think they have said enough to establish that they are brutes, they

show themselves as proud as if they had demonstrated that they are

gods.”[105] We have lately seen this arrogant materialism culminate in a

temper of mind well expressed by one of the writers in the organ of the

fashionable London Clubs, where, treating of that large class of persons

of various shades of character who are brought under the Contagious

Diseases Acts, he says these women ought to be “treated as foul sewers

are treated, as physical facts and not as moral agents.” Sewers have

neither souls nor civil rights; by admitting into their political theory

the idea that any class of human beings whatever may be reduced to the

level of an inanimate nuisance for political purposes, these writers

have demonstrated to us very clearly the intimate connection between a

gross materialism and the most cruel and oppressive despotism. The men

who speak thus, and who act in harmony with their utterances, do not

believe that the beings of whom they speak have souls; to them any

regenerating influence from a Divine source upon the spirit of man or

woman is inconceivable. It is needless to indicate more particularly the

natural and close alliance between this materialism and the coercive and

oppressive policy which such materialists, though frequently professing

radicalism, will readily adopt, merely transferring the power of the

deprivation of civil and human rights from the hands of a monarch or a

hereditary aristocracy into those of official experts who will be the

elect of a fully enfranchised people, and therefore more dangerously

confided in by the people. In order that we may avoid such a future

despotism having its root deeply laid in a materialistic creed, we

need—and a merciful God will grant it—for each individual, and for the

nation at large, a fuller measure of that light of the conscience, and

that life of the spirit which will enable us to discern with clearness

and to tread with perseverance that path which leads to the goal whither

the hopes of the human race are ever tending.

The following are the editions of some books consulted:—

De Tocqueville’s _Democracy in America_. Third edition. Saunders and

Otley.

Blackstone’s Commentaries. Thirteenth edition, with Christian’s Notes.

De Lolme on the Constitution. Second edition. Wilkie and Robinson.

Creasy on the Constitution. Eighth edition. Bentley.

Guizot’s Causes of the Success of the English Revolution. Murray.

APPENDIX A.

De Tocqueville says on Jury Trial, “To look upon the jury as a mere

judicial institution, is to confine our attention to a very narrow view

of it; for however great its influence may be upon the decisions of the

law courts, that influence is very subordinate to the powerful effects

which it produces on the destinies of the community at large. The jury

is above all a political institution, and it must be regarded in this

light to be fully appreciated.

“The institution of the jury may be aristocratic or democratic,

according to the class of society from which the jurors are selected;

but it always preserves its republican character, inasmuch as it places

the real direction of society in the hands of the governed, or of a

portion of the governed, instead of leaving it under the authority of

the Government.... The true sanction of political laws is to be found in

penal legislation, and if that sanction be wanting, the law will sooner

or later lose its cogency. He who punishes infractions of the law is the

real master of society. Now, the institution of the jury raises the

people itself, or at least a class of citizens, to the bench of judicial

authority. The institution of the jury consequently invests the people,

or that class of citizens, with the direction of society.... The jury

serves to communicate the spirit of the judges to the minds of the

citizens; and this spirit, with the habits which attend it, is the

soundest preparation for free institutions.”[106] Thus, while in England

we are gradually allowing the institution of the jury to fall into

disuse, we are making the central executive the real master of society,

and while we imagine we are advancing towards a more strongly republican

character, we are in fact retrograding towards imperialism.

APPENDIX B.

In the Act passed 6th August 1861, “To consolidate and amend the statute

law of England and Ireland relating to larceny and other similar

offences,” 24 and 25 Victoria, chapter 96, there is, by clause 110, an

appeal allowed in summary cases as follows:—

24 and 25 Vict. ch. 96, s. 110—“In all cases where the sum adjudged to

be paid on any summary conviction shall exceed five pounds, or the

imprisonment adjudged shall exceed one month, or the conviction shall

take place before one justice only, any person who shall think himself

aggrieved by any such conviction may appeal to the next Court of General

or Quarter Sessions, which shall be holden not less than twelve days

after the day of such conviction, for the county or place wherein the

cause of complaint shall have arisen; provided that such person shall

give to the complainant a notice in writing of such appeal, and of the

cause and matter thereof, within three days after such conviction, and

seven clear days at the least before such Sessions, and shall also

either remain in custody until the Sessions, or shall enter into a

recognizance with two sufficient sureties,” etc. etc.

This appeal clause is identical with that in 24 and 25 Vict. c. 97, and

continually repeated in other Acts of Parliament, as, for instance, in

the one against brawling in church, etc. etc. It will be seen therefore

that the absence of a right to appeal from the conviction by the justice

of the peace under the Contagious Diseases Acts is a peculiar harshness

of these Acts, as contrasted with general criminal Acts.

It appears from the “Criminal Law Amendment Acts,” 24 and 25 Vict. c.

96, 97, and 100, that the largest fine that can be inflicted by a

justice of the peace is £50, which large fine can apparently be

inflicted only in one case, viz., that of wounding deer (see c. 96, s.

12). Generally the limiting fine is £20 or £5. The greatest punishment

mentioned in these Acts, as assignable by a justice of the peace, is

_six months’ imprisonment_. Now, under the Contagious Diseases Acts

(clause 7, Act 1869) the woman can be imprisoned in hospital for _nine

months_. (By clause 24, Act 1866, the period during which she could be

thus imprisoned was limited to six months, but was extended to nine

months by clause 7, Act 1869. This extension, in common with many other

features, shows the insidious character of these Acts.)

In addition, therefore, to the fundamental and absolute points of

difference mentioned in the text of this Essay, these Acts differ from

all previous Criminal Acts—1st, In inflicting a longer imprisonment on

summary conviction; and 2d, In not permitting the appeal allowed under

other Criminal Acts.

-----

Footnote 1:

_English Constitution_, p. 2. (Eighth edition. Bentley.)

Footnote 2:

Speech of the Earl of Chatham on the exercise of the Judicature in

matters of Election, 1763.

Footnote 3:

Lord Chatham’s Speeches.

Footnote 4:

_English Constitution_, p. 148.

Footnote 5:

_Middle Ages_, chap. ii. p. 324.

Footnote 6:

_Ibid._

Footnote 7:

_Ibid._

Footnote 8:

De Lolme on the Constitution, p. 28.

Footnote 9:

Coke on Magna Charta.

Footnote 10:

_English Constitution_, p. 150.

Footnote 11:

_English Constitution_, p. 151.

Footnote 12:

Mittermaier.

Footnote 13:

Montesquieu, _Esprit des Lois_, xii. 2.

Footnote 14:

_Civil Liberty and Self-Government_, p. 54.

Footnote 15:

_English Constitution_, p. 382.

Footnote 16:

_History of his Own Times._

Footnote 17:

Sir Charles Trevelyan, in _Good Words_ of January 1, 1871, says—“It is

well that the ladies of England have protested against their sex being

recognised by Parliament as a _corpus vile_ for the indulgence of

irregular lust. If it were possible for them to explain the real

extent of the outrage upon womanhood, there would be one universal cry

for repeal throughout the land.”

Footnote 18:

De Lolme on the Constitution, p. 354.

Footnote 19:

See Coke, p. 50, on Magna Charta. He says, “Nisi per legem terræ,” but

by the law of the land. For the true sense and exposition of these

words see the Statute of 37 Edward III. cap. 8, where the words ‘but

by the law of the land’ are rendered ‘without due process of law;’ for

there it is said, though it be contained in the great charter that no

man is to be taken, imprisoned, or put out of his freehold without

process of law, that is, without indictment or presentment of good and

lawful men, where such deeds be done in due manner, or by writ

original of common law, etc. In 28 Edward III. ch. 3, the words are

rendered “without being brought in to answer but by due process of the

common law.”

Footnote 20:

Coke’s _Institutes_, p. 50.

Footnote 21:

From this we may expect, following out the Contagious Diseases Acts,

that a new office under Government will be created analogous to the

Bureau de Mœurs in Paris, and that we shall ere long have a Secretary

of State for the regulation of vice.

Footnote 22:

“Touching the business of martial law, these things are to be

observed, viz.—_First_, that in truth and reality it is not a law, but

something indulged rather than allowed as a law. The necessity of

government, order, and discipline in an army, is that only which can

give those laws a continuance: ‘quod enim necessitas cogit defendit.’

_Secondly_, This indulged law was only to extend to members of the

army, and never was so much indulged as intended to be executed or

exercised upon others. For others who are not listed under the army

had no colour or reason to be bound by military constitutions

applicable only to the army, whereof they were not parts. But they

were to be ordered and governed only according to the laws to which

they were subject.”—Hale’s _Common Law of England_, vol. i. p. 54.

“The Admiralty Court is not bottomed or founded upon the authority of

the civil law, but hath its power and jurisdiction in such matters as

are proper for its cognizance. The Court of Admiralty has no

jurisdiction of matters or contracts done or made on land; and the

true reason for their jurisdiction in matters done at sea is because

no jury can come from thence.”—_Ibid._ p. 51.

Footnote 23:

Under Act 1866 the police are defined to mean “Metropolitan police, or

other police or constabulary authorized to act in any part of any

place to which this Act applies.”

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