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.”