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.”