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.