CHAPTER III.

I now come to consider the cases to which I have before alluded, in which jury trial is dispensed with. I shall show their nature, and how the question to be decided under the Acts of Parliament to which we object in no way belongs to that class of questions.

Having one day explained the nature of these Acts to a working man, he appeared incredulous of their existence, and exclaimed, “This is impossible! for every one in England can claim jury trial.” I believe these words to be expressive of a misapprehension under which a vast number of people labour. This man’s impression was true regarding the great principles of English legislation. But a supporter of these Acts might have answered him by telling him that there are in England a number of cases which are decided by a single justice of the peace without the intervention of a jury. Although perhaps at first silenced by this objection, and deprived, therefore, apparently of an obvious argument for claiming jury trial for the women accused under the Acts, our friend, after more mature consideration, could not fail to come to the conclusion that, after all, there was surely some injustice here. In this conclusion he would be correct.

In a free country like England, where people are brought up under just institutions, and where the principles of constitutional freedom are so universally diffused in men’s talk, actions, and thoughts that they form the underlying spirit of all political and social intercourse, the instincts of a person whose information is no more definite than that which he gets from the whole tone of society are in the main trustworthy and just. These instincts are more to be relied upon than legal subtleties, and are themselves the surest argument for the justice of our constitution. It is the inextinguishable instinct of freedom, strengthened and nourished by the existence of free institutions, which constitutes the guarantee of the continuance of a nation’s liberty; and for this reason it is that I would give much weight to those widely diffused and instinctive ideas, which we find even more amongst the unlettered than amongst those classes whose sense of freedom has been blunted by the enjoyment of exclusive and unquestioned privileges.

Under such circumstances as these, when an unjust law comes to be argued and discussed by the public generally, we find that a strong and universally diffused appreciation of its unjust character may, and indeed always does, exceed the power of definitely pointing out the exact part of the constitution which may be violated by such a law. It is one of the blessings of this free country of England, that a perception of freedom and of constitutional right is more widely diffused than it is possible for a knowledge of the statute-book to be, or of the particular laws which form the basis of that constitution. The many are thus, by the education which they receive from our free institutions, made the protectors of our liberties, which could never be protected or maintained if in the hands only of the few and learned.[36] In accordance with this principle, we find the general instinctive perception of the violation of liberty by the Contagious Diseases Acts giving vent to itself throughout the country in varied forms, and in none more so than in an expression, which has not been unfrequently used, that these Acts are in some way or other opposed to the Habeas Corpus Act.

These Acts as they stand do not directly violate the Habeas Corpus Act, yet this very objection to them, erroneous though it may be in the absolute letter, serves only the more to show how widely diffused is a true appreciation of the spirit in which the Habeas Corpus Act is conceived. The spirit of the Habeas Corpus Act, equally with that of Magna Charta, of which it is an elucidation, is violated by these Acts.

It is said in Magna Charta, “no man shall be taken, or imprisoned, or be disseised of his freehold or liberties or free customs, or be outlawed or exiled, or any-otherwise destroyed; nor will we pass upon him, nor condemn him, but by the lawful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man, either justice or right.”[37]

Now let us just again view these sentences as strictly applying to the administration of justice, in order to show the truth of the instinctive feeling above alluded to of so many people, that the Habeas Corpus Act is in some way violated.

“These words contain,” says Sir E. Creasy,[38] “two great principles, the one that persons accused of criminal offences shall have free jury,” of which I have already spoken, “the other, that no man shall be imprisoned on mere general grounds of suspicion at the discretion or caprice of the executive power; but that imprisonment shall be only inflicted as the result of a legal trial and sentence, or for the purpose of keeping in safe custody, when necessary, an accused person on a definite charge, until he can be tried on that charge. This latter principle is familiar to us by the term of an Englishman’s right to a Habeas Corpus, if his personal liberty be interfered with.”

The Habeas Corpus Act, therefore, as thus explained, is distinctly one of the great constitutional safeguards against arbitrary imprisonment or detention; and this is undoubtedly the correct as well as the generally diffused understanding of the principle of that Act. And the readiness with which people refer to the Contagious Diseases Acts as a violation of the principle of the Habeas Corpus Act, is a proof of the fact that these Acts involve proceedings of a character unconstitutionally arbitrary.

The fact is, that to imprison a person without any trial at all would be a _literal_ violation of the Habeas Corpus Act, but that to imprison a person after an inadequate trial by an inadequate tribunal, as these Contagious Diseases Acts do, is a violation of the _principle_ of the Habeas Corpus Act just as great. Lord Coke says, “it is the worst oppression that is done by colour of justice;” and we cannot regard that imprisonment as any less a violation of the Habeas Corpus Act, because it is inflicted after a mode of trial, the adoption of which Parliament had no right, in this instance, to legalize.

We therefore see that the legalizing of a tribunal so inadequate for the judgment of cases so grave as those which under these Acts are submitted to a justice of the peace, is in effect a suspension by Parliament of the Habeas Corpus Act, and not, as is usual, for a limited time, but for an indefinite time, and for a vast proportion of Her Majesty’s subjects. “The suspension of the Habeas Corpus Act is an expedient which,” says Blackstone,[39] “ought only to be tried in cases of extreme emergency, for a short and limited time; and in these the nation parts with its liberty for a while in order to preserve it for ever.”

Now it may be asked, How can we so strongly condemn this particular Act to which we are opposed, while at the same time there actually exists a set of cases, viz., those included in the category of summary proceedings, in which jury trial is equally dispensed with? Why, if the country be generally content to admit these, should it not be content to admit the Contagious Diseases Acts? I will proceed to answer this question.

I find in Blackstone an account of these innovations upon our ancient constitutional principles, which are known by the name of summary proceedings. These summary proceedings are of comparatively recent origin, and I cannot give the reader a better account of them, and of what they involve, than by quoting what Blackstone says on the subject:[40]—

“By a _summary_ proceeding, I mean such as is directed by several Acts of Parliament (for the common law is a stranger to it, unless in the case of contempts) for the conviction of offenders, and the inflicting of certain penalties created by those Acts of Parliament. In these there is no intervention of a jury, but the party accused is acquitted or condemned by the suffrage of such person only as the statute has appointed for his judge,—an institution designed professedly for the greater ease of the subject, by doing him speedy justice, and by not harassing the freeholders with frequent and troublesome attendances to try every minute offence. But it has of late been so far extended as, if a check be not timely given, to threaten the disuse of our admirable and truly English trial by jury, unless only in capital cases; for—

“I. Of this summary nature are all trials of offences and frauds contrary to the laws of the _excise_ and other branches of the _revenue_, which are to be inquired into and determined by the commissioners of the respective departments, or by justices of the peace in the country; officers who are all of them appointed and removable at the discretion of the Crown. And although such convictions are absolutely necessary for the due collection of the public money, and are a species of mercy to the delinquents, who would be ruined by the expense and delay of frequent prosecutions by action or indictment, and though such has usually been the conduct of the commissioners as seldom (if ever) to afford just grounds to complain of oppression; yet, when we again consider the various and almost innumerable branches of this revenue which may be in their turns the subjects of fraud, or at least complaints of fraud, and of course the objects of this _summary_ and arbitrary jurisdiction, we shall find that the power of these officers of the Crown over the property of the people is increased to a very formidable height.

“II. Another branch of summary proceedings is that before _justices of the peace_, in order to inflict divers petty pecuniary mulcts and corporal penalties denounced by Act of Parliament for many disorderly offences, such as common swearing, drunkenness, vagrancy, idleness, and a vast variety of others, for which I must refer the student to the justice-books formerly cited, and which used to be formerly punished by the verdict of a jury in the court-leet. This change in the administration of justice hath however had some mischievous effects, as—_1st_, The almost entire disuse and contempt of the court-leet and sheriff’s tourn, the King’s antient courts of common law, formerly much revered and respected. _2nd_, The burthensome increase of the business of a justice of the peace, which discourages so many gentlemen of rank and character from acting in the commission, from an apprehension that the duty of their office would take up too much of that time which they are unwilling to spare from the necessary concerns of their families, the improvement of their understandings, and their engagements in other services of the public; though, if _all_ gentlemen of fortune had it both in their power and inclinations to act in this capacity, the business of a justice of the peace would be more divided, and fall the less heavy upon individuals, which would remove what in the present scarcity of magistrates is really an objection so formidable that the country is greatly obliged to any gentleman of figure who will undertake to perform that duty, which in consequence of his rank in life he owes more peculiarly to his country. However, this backwardness to act as magistrates arising greatly from this increase of summary jurisdiction is productive of, _3rd_, a third mischief, which is, that this trust, when slighted by gentlemen, falls of course into the hands of those who are not so, but the mere tools of office. And then the extensive power of a justice of the peace, which even in the hands of men of honour is highly formidable, will be prostituted to mean and scandalous purposes, to the low ends of selfish ambition, avarice, or personal resentment. And from these ill consequences we may collect the prudent foresight of our antient lawgivers, who suffered neither the property nor the punishment of the subject to be determined by the opinion of any one or two men; and we may also observe the necessity of not deviating any farther from our antient constitution by ordaining new penalties to be inflicted upon summary convictions.”

Sir Edward Creasy also says on the same subject:—“The great constitutional principle of trial by jury is still respected so far as regards all trials for offences of a graver character, and which subject the person convicted of them to a severe punishment.... But for upwards of a century the practice of exposing persons charged with minor offences to trial and summary conviction by one or two justices of the peace has been growing more and more prevalent. It is deeply to be regretted that so little heed has been paid to the sage and humane warnings of Blackstone against the increase of this system of withdrawing criminal charges from the consideration of a jury.”

Mr. Justice Warren also speaks, in his abridgment and adaptation of Blackstone’s _Commentaries_, respecting the “inroads on the noble institution of trial by jury which are now being made incessantly;” and he gives the following warning: “It is a matter of supreme concern to the country to beware of shaking the confidence of the humble classes of society in the administration of criminal justice, by infringing their right to an open and formal trial by their equals, and placing them at the mercy of, it may be, an interested and prejudiced superior.”[41]

While merely noticing in passing the grave objections of these eminent lawyers to the whole principle and operation of these summary convictions, I must draw the particular attention of my readers to the only excuse which these lawyers allow for this encroachment on constitutional rights, namely, the beneficent intention of expediting justice in minor cases for the sake of the individuals concerned.

From the quotations which I have given above, there are three main facts which may be gathered, viz., _first_, that summary proceedings _are_ an encroachment on liberty, and lamented over by great lawyers; _second_, that they are only for the sake of minor offences, and only in that case tolerable; and _third_, that there are cases which, when included in this category, render these encroachments especially dangerous, and by no manner of means, or by any argument, to be tolerated.

Let the reader observe carefully these facts, and let him also observe the reason why these summary convictions are allowed in minor cases—that is, for the sake of the accused, and to expedite justice,—and let him ask himself whether he finds this motive inspiring these Acts. The answer to his inquiry will be, that the summary proceedings under these Acts are _not_ for the sake of the accused, and that they are _not_ to expedite justice.

If then for these intentions the danger is tolerated of the infringement of the strict letter of Magna Charta in these minor cases, can its principle therefore be permitted to be destroyed in a case where no such intentions are manifest?

In the first place, the summary character of these Acts in question does not exist for the sake of the accused, as may be best shown by a provision under them called the “voluntary submission,” by means of which a woman is made to criminate herself; whereas, in all other cases, care is taken in any examination of an accused person to give him every advantage, and not to entangle him; and he is especially advised by the person who examines him, to say or sign nothing to criminate himself. The woman, on the contrary, is subjected to no examination, but is simply requested to criminate herself; and the War Office and Admiralty order that if she do not immediately criminate herself, she is to be threatened with penal consequences for her refusal.[42]

In the second case, the proceedings under these Acts are not for the sake of expediting the matter, and of reinstating the accused in society, because this Act condemns her to be, or sign herself, a bondwoman for a given period not exceeding a year.[43]

Therefore the motives for making the proceedings under this Act summary cannot be said to exist.

With respect to the voluntary submission, the illegal threat of the Admiralty and War Office (already quoted in the Note, p. 58), backed up by police intimidation, has induced many women, friendless and ignorant of the laws, to sign that submission in preference to the alternative of going before a magistrate. To this they have been induced by the hope that their registration may thus be kept a secret, and by ignorance of the real nature of the personal outrage to which they submit themselves, the real nature of which it is impossible for any one to gather from the form of the voluntary submission, or, indeed, from anything in the Acts.[44] But if it be alleged, as an inference from this, that the ordeal incurred is not so detestable a thing to a woman as we have represented it to be, if they choose rather to submit to it voluntarily than to have their case tried openly before a magistrate, choosing a certainty of subjection to this ordeal rather than publicity, with the chance of escape; and if on that account it be alleged in objection to our argument, that the publicity of open jury trial would be still more painful for these women to encounter than the publicity of proceedings before a single magistrate, we would reply that, though the alternative just mentioned is offered by the Act, it is by no means the alternative which has been presented to the minds of the women, to whom the lie circulated by the authority of the Admiralty and War Office has distinctly declared that the going before a magistrate is only a public method of the same submission; and to whose mind that going before the magistrate is presented, not as a trial, but as a proceeding involving direct penal consequences. If it be represented to her that it is penal to refuse to sign the voluntary submission, how can she refuse? Yet even though no such representation were made, and though every woman had direct access to the Act of Parliament thus falsely interpreted to her, it must still be apparent to every honest mind that it is a gross parody of justice to offer to any person an insufficient or partial tribunal on the one hand, and, on the other, the opportunity of self-crimination. It is a base and unjust alternative, and one which ought not to be presented to any citizen of a free country, and, above all, ought not to be presented in this particular case; for, be it observed, such an alternative and such a method of trial gives rise to a recklessness of accusation peculiarly grievous in the present instance, and which the system in question seems framed precisely to foster,—a recklessness of accusation which would be checked by the fear which must affect even the most powerful individual in the State, and make him reflect well before he too lightly brings any accusation against any one, knowing that the truth of that accusation must be examined and decided by twelve indifferent men, not appointed till the hour of trial, and not by those paid officials accustomed to believe in the truth of such accusations, and knowing that when once the fact of a false accusation is ascertained the law must of course redress it.

Let me, however, at this point remind the reader, that my argument throughout is not a plea to retain these Acts, amended by the introduction of the safeguard of jury trial; but that my object is to bring them to the test of this ancient and sacred institution, and to show that since they cannot exist in conjunction with it, then these Acts stand condemned thereby, and therefore must be expunged from the statute-book.

The question now arises, Is this at all a fit case for summary proceeding, even although those proceedings did in this case expedite the celerity of justice? Now, if we refer back to the quotations already made on this subject from Blackstone and others, we shall see that the abridgment of legal safeguards is only to be permitted in what are called minor cases. And the cases to be treated under these Acts can by no means be called minor cases, for reasons which I am about to give. First, however, let it be carefully observed that there are two distinct proceedings under the Act, the first being that of which I have treated in the preceding chapter, namely, the determination as to whether the woman be a prostitute or not; and the second, with which I am not dealing here, being that which is directed against the offence created under the Acts, that offence being the carrying on of the trade of a prostitute otherwise than under the conditions imposed by Government. And what we are here particularly objecting to is the making the first proceeding, above referred to, a summary proceeding, and calling that case a minor case which relates to the determination as to whether a woman is immoral or not.

I have thought it right to make this distinction clear because of our adversaries, who, when we speak of the punishment under these Acts inflicted on women, affect to suppose that we refer only to the punishment inflicted on a prostitute for the offence of not obeying the Government conditions; again here assuming, as they invariably do, that no one but such a person is ever dealt with by this law; so that I must again emphatically call the attention of the reader to the fact, that the first proceeding under the Act is that of determining, by the arbitrary tribunal which I have before discussed, the fact as to whether the woman be a prostitute or not. And if the decision of this tribunal be, as we declare it is and must be, very frequently erroneous, it is a virtuous woman, and not a prostitute, who is involved in all the subsequent proceedings; and since these proceedings are entered upon on account of her resistance to the subsequent action of the law, the chance of gross injustice is all the greater, since it certainly would be the virtuous woman, or one who had some modesty left, rather than the vicious one, who would resist the proceedings.

How then can that be called a minor offence, which involves by no means a minor penalty? How can that be called a case for the law’s celerity, which involves a repeated, and it may be a life-long, imprisonment?[45] How can that be called a minor case which involves not only repeated imprisonment, but which is based on an accusation of the most subtle, cruel, and injurious kind, and which, even though disproved, carries with it its own penalty, whether in the form of loss of character (which character is often the sole capital of a poor woman), or violation of the person of that outrageous kind which I have before said it is impossible to mention?—a violation which is in fact such a proceeding as is forbidden in the clause of Magna Charta as above quoted, “and neither will we destroy any one except by the judgment of his peers.” How can that be regarded as a minor offence which involves a punishment which is irretrievable, and which is the only irretrievable punishment now inflicted in this country except that of death? It is in vain for supporters of the Acts to deny that the violation of the person above alluded to is punishment of the grossest and most horrible kind for every creature calling herself a woman: but should anybody urge that that operation of the Act upon the person of a proved prostitute is neither horrible nor irretrievable, once more let him remember that these Acts deal with women generally, not with prostitutes exclusively, and that the first process under the Acts is the arbitrary determination as to the character of the woman suspected, which determination amounts in fact to an arbitrary selection of such women as the policeman and magistrate deem proper to bring under the Acts.

In the case of minor offences, it is the proportionately trifling nature of the punishment inflicted which justifies, if anything can justify, the summary conviction; but such conviction cannot possibly in a free country be tolerated, when the punishment consequent on conviction is of a nature so injurious and irretrievable. If you deprive a man of life the punishment is irretrievable; no recompense can be made for it if erroneously inflicted; hence in some countries punishment by death is on this very account prohibited when the evidence is only circumstantial. What then shall we say of a case in which an irretrievable punishment is inflicted where there is no necessary circumstantial evidence at all, but suspicion only, and further, without the safeguard, which the law applies in the other case, of jury trial? What can atone to an innocent woman for the destruction of her character brought about by mere suspicion, and without the chance of the time-honoured appeal “to God and my country”? What can atone to her for the personal outrage, which is made so light of by some doctors, but which, whether inflicted by any private villain, or by a gentleman paid by the Government to inflict it, must bring to every decent woman unmitigated shame and anguish?

We therefore claim that these cases under this Act shall not be summarily treated as minor cases, because, to put it in the light least favourable to ourselves, no one can prove to us that an innocent woman may not be accused under it; and, being so accused, if punished wrongfully, she suffers more than any other person punished wrongfully would suffer; she has therefore more than any other person the right to all the safeguards which the law can offer. Now, it is admitted by all great lawyers that the supreme safeguard against accused persons being wrongfully punished, or against persons being wrongfully accused, is the existence of jury trial. These women, therefore, more than any other accused people, are entitled to have every legal safeguard. It is more tyrannical than can for a moment be endured in England, that such cases should be classed among minor cases, and be treated in the same summary fashion as when a little boy breaks windows.[46]

Now, let us ask our opponents “why, in this matter, did they dispense with jury trial?” The only answer they could consistently give is, that if jury trial were adopted, the law would not work. If that be so, these Acts are condemned by that very admission. This test distinguishes at once the case in question from all other summary cases, for let us suppose any other case whatsoever now comprised among these treated as summary cases to be brought to the test of jury trial, and let us see what would be the result. It would be, not the miscarriage of the case, but the clearer and fuller establishment of justice, though at the expense of delay and the employment of greater machinery than the case might perhaps demand. The real reason for dispensing with this safeguard, however, we suspect is to be found in the same selfishness which prompted the Act, namely, that tender regard for the erring man, which is by no means extended to either the frail or the virtuous woman. It would manifestly be inconvenient and disagreeable to those gentlemen, for whose fancied benefit these Acts were made, to be constantly in danger of being called up as witnesses to the immoral character of certain of their female companions, it may be of some poor girl introduced by their seduction into the paths of vice. For it is, unfortunately for them, a maxim of the Common Law of England, “that the best evidence the nature of the case will admit of shall always be required, if possible to be had,”[47] and the best and most direct evidence in this case is very clearly that of the male accomplices of the woman whose character is the subject of trial; wherefore we do not need to go far to discover why it is that the persons who have found it needful to make these Acts should have also found it needful to do away with jury trial.

For these reasons, and for others to be cited in an ensuing chapter, I can characterize these Acts as nothing other than a gross violation of the constitution of this country, whereby there is established a sort of press-gang, by which women are pressed into the ranks of vice by the shortest and easiest way possible, for the purpose of serving the lusts of men.