The constitution violated

1. English Constitution, p. 2. (Eighth edition. Bentley.)

2. Speech of the Earl of Chatham on the exercise of the Judicature in matters of Election, 1763.

3. Lord Chatham’s Speeches.

4. English Constitution, p. 148.

5. Middle Ages, chap. ii. p. 324.

6. Ibid.

7. Ibid.

8. De Lolme on the Constitution, p. 28.

9. Coke on Magna Charta.

10. English Constitution, p. 150.

11. English Constitution, p. 151.

12. Mittermaier.

13. Montesquieu, Esprit des Lois, xii. 2.

14. Civil Liberty and Self-Government, p. 54.

15. English Constitution, p. 382.

16. History of his Own Times.

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.”

18. De Lolme on the Constitution, p. 354.

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.”

20. Coke’s Institutes, p. 50.

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.

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.

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.”

Act 1868 was especially passed for the sole reason of substituting in Ireland “any policeman duly authorized,” instead of “the superintendent of police.”

24. 20. If in any such examination the woman examined is found to be affected with a contagious disease, she shall thereupon be liable to be detained in a certified hospital, subject and according to the provisions of this Act, and the visiting surgeon shall sign a certificate to the effect that she is affected with a contagious disease, naming the certified hospital in which she is to be placed, and he shall sign that certificate in triplicate, and shall cause one of the originals to be delivered to the woman, and the others to the superintendent of police.

21. Any woman to whom any such certificate of the visiting surgeon relates may, if she thinks fit, proceed to the certified hospital named in that certificate, and place herself there for medical treatment; but if, after the certificate is delivered to her, she neglects or refuses to do so, the superintendent of police, or a constable acting under his orders, shall apprehend her and convey her with all practicable speed to that hospital, and place her there for medical treatment, and the certificate of the visiting surgeon shall be sufficient authority to him for so doing.

22. Where a woman certified by the visiting surgeon to be affected with a contagious disease places herself, or is placed as aforesaid, in a certified hospital for medical treatment, she shall be detained there for that purpose by the chief medical officer of the hospital until discharged by him by writing under his hand.

The certificate of the visiting surgeon, one of the three originals whereof shall be delivered by the superintendent of police to the chief medical officer, shall, when so delivered, notwithstanding that she is for that purpose removed out of one into or through another jurisdiction, or is detained in a jurisdiction other than that in which the certificate of the visiting surgeon was made, shall be sufficient authority for such detention.

26. Every woman conveyed or transferred under this Act to a certified hospital, shall, while being so conveyed or transferred thither, and also while detained there, be deemed to be legally in the custody of the person conveying, transferring, or detaining her.

25. De laudibus legum Angliæ, p. 53.

26. Blackstone, Bk. iii. p. 38.

27. The Act upon this point was very clearly defined by Mr. Bennett, an eminent solicitor, in a case tried at the Duke of Cornwall Hotel, Plymouth, which entirely turned on the fact that suspicion alone in the policeman’s mind justified his action, and that, further, he was not bound, when called on, to give the reasons of this suspicion.

28. Blackstone, Book iii.

29. M. Le Cour says that in Paris false accusations, by anonymous letters and otherwise, amount to several hundreds a week.

In the case at Plymouth already alluded to, Inspector Annis of Plymouth being asked by Mr. Rooker, a magistrate, “Have you ever got anonymous letters accusing women?” replied, “We get lots of them.”

30. On the occasion of the trial of a young girl under these Acts in a certain town of Kent, a full bench of magistrates was assembled. She was condemned to a month’s imprisonment, and on leaving the court remarked, “I did find it rather hard that the gentleman on the bench who gave the casting vote for my imprisonment had paid me five shillings the day before to go with him!”

31. Creasy’s Constitution, pp. 225 and 227.

32. De Lolme, p. 171.

33. Blackstone, Book iii. p. 378.

34. Blackstone, Book iii. p. 379.

35. See Appendix A, p. 179.

36. Lieber in his work on Civil Liberty remarks that lawyers have rarely been the promoters of reform in the laws: he excepts “the immortal Sir Samuel Romilly” and a few others.

37. It is thus worded in the Charter of Henry III.

38. English Constitution, p. 204.

39. Blackstone, vol. i. p. 145.

40. Blackstone, Book iv. chap. 20.

41. Professor Sheldom Amos writes on this subject:—“The proceedings contemplated by the Contagious Diseases Acts have been placed among a large and rapidly growing class of proceedings only technically criminal, and instituted for quasi-moral, sanitary, fiscal, or general police purposes. To this class belong cab-regulations, regulations in respect of the cattle-plague, regulations for preventing nuisances in the way of obstructions in the street or on the pavement, regulations in the way of railway bye-laws for securing the safety of passengers, etc. The actions endeavoured to be prevented by the class of laws here involved are not crimes in the sense of being in themselves morally reprehensible, still less abominable, but they are crimes so far as they are absolutely forbidden by the State, and the punishment and prevention of them is undertaken by the State through its own officers. This class of Acts has been very much multiplied of late years, and the proceedings with respect to them are always in the first instance before one or two magistrates. Some of the proceedings are ‘summary;’ that is, the magistrate can assign the punishment at once without appeal; others are summary only in the sense that the magistrate can, if the accused consent, assign the punishment at once, but the case can be reserved for Quarter Sessions and for jury trial in the event of the accused being able to find securities for his appearance. Thus, you see that the claim to jury trial is already practically obsolete for all offences not of such kind as theft, robbery from the person, murder, assaults, treason, forgery, and such like atrocious forms of wrong-doing. The proceedings under the Contagious Diseases Acts are placed among the first of the classes above described, that is, summary proceedings without appeal. I think with you that the extension and multiplication of such Acts and proceedings is a grave constitutional peril, as I have said elsewhere.” Let the reader compare the grave cases tried under the Contagious Diseases Acts with the quasi-moral, sanitary, and fiscal cases adverted to above, and let him mark the conclusions to which the framers of these Acts are inevitably driven through having placed these cases on this category. On the one hand, if, as some of our opponents say, these Acts are directed against vice, and are for the discouragement of the sin of prostitution, then, as we have seen, their framers are guilty of a violation of the constitution by placing cases of real criminality, involving severe penalties, on the list of summary proceedings in which there is no appeal. But if, as by far the greater number of our opponents affirm, these Acts do not treat prostitution as criminal, and these cases properly belong to the category above cited, then to what an awful moral conclusion are they driven on the other hand! To exact an exorbitant fare or to drive recklessly in the streets is a legal offence in a cabman; but to take a fare within prescribed limits and to drive in the streets is no moral offence at all. The same kind of argument holds true of all the technical offences created by the Acts of Parliament above alluded to. It is the exceeding of a certain limit (thereby causing inconvenience to society) which constitutes the legal offence under these economic regulations. But in the Contagious Diseases Acts the case is wholly different. Prostitution itself is morally criminal. The State—placing the Contagious Diseases Acts on the category of merely economical regulations—makes the crime dealt with under them to consist in acting as a prostitute when out of health. It says to the trader in sin, “You are guilty, unless you pursue this trade under certain conditions prescribed by Act of Parliament,” thus plainly implying, “You are not guilty so long as you ply your trade in compliance with the conditions imposed by our Act,”—hence the fearfully immoral influence of such a law upon the people at large! Whatever may be said, on the ground of expediency, against certain recent Acts of Parliament, it can never be said that their influence is directly immoral, for the technical definition by the State of the crime treated in these cases does not involve the recognition of the lawful and innocent character of actions in themselves vicious, condemned by God’s Word, and ruinous to society; finally, it is clear that little or no injury to character is incurred by a false accusation under these economical Acts, whereas a false accusation under the Contagious Diseases Acts is ruinous.

42. The practical working of this Act turns upon the voluntary submission. The clauses which refer to this are as follows:—

Act 1866, clause 17.— “Any woman, in any place to which this Act applies, may voluntarily, by a submission in writing, signed by her in the presence of, and attested by, the superintendent of police, subject herself to a periodical medical examination under this Act for any period not exceeding one year.”

Act 1869, clause 6.—“Where any woman in pursuance of the principal Act (1866) voluntarily subjects herself by submission in writing to a periodical medical examination under that Act, such submission shall, for all the purposes of the Contagious Diseases Acts 1866 to 1869, have the same effect as an order of a justice subjecting the woman to examination, and all the provisions of the principal Act respecting the attendance of the woman for examination, and her absenting herself to avoid examination, and her refusing or wilfully neglecting to submit herself for examination, and the force of the order subjecting her to examination after imprisonment for such absence, refusal, or neglect shall apply and be construed accordingly.” If a woman do not desire to sign the voluntary submission, the process under the Acts is that in conformity with the clause 4, Act 1869, already cited, she shall be summoned before a justice, by whom the question as to her being a prostitute or not is first to be tried, and then if he is satisfied that she is such, she is ordered for examination. It is not until after this process of law, and until she has absented herself wilfully from the examination thus ordered, that there are any penal consequences. (See clause 28, Act 1866, quoted below.) The arbitrary character of the offices to which the carrying out of these Acts is intrusted is to be seen from the orders given by the War Office to the policeman, with respect to the voluntary submission, one of which orders is as follows:—“Should any woman object to sign, she is to be informed of the penal consequences attending such refusal, and the advantages of a voluntary submission are to be pointed out to her.” Now, there are no penal consequences legally attending such a refusal; on the contrary, penal consequences attend signing: and the War Office here utterly ignores all the process of law which intervenes between the accusation of the woman, under clause 16, Act 1869, and the penal consequences which, according to clause 28, Act 1866, may under certain circumstances ensue. Perhaps nothing could be such a striking comment as this on the utterly flimsy character of the whole process of law to which the woman is subjected. The War Office has here leapt at once from the suspicion of a policeman to the woman’s condemnation, as if the suspicion of a policeman alone were sufficient proof of her being a prostitute. Indeed, under the Act it seems fundamentally to be assumed that policemen are infallible judges as to whether a woman is chaste or not.

43. The form of the voluntary submission is as follows:—“I —— voluntarily subject myself to a periodical medical examination by the visiting surgeon for —— calendar months.” In order to put it more plainly before the reader, let him imagine some petty misdemeanour, such as petty theft or disorderly conduct,—let him imagine a paper of a self-criminating character put before the accused, wherein he signs words to this effect: “I —— submit myself to (here mentioning some new form of punishment, which shall include the public registration of his calling as a thief or a drunkard) for —— calendar months.” Where is here the desirable expediting of justice? and where is here the “benevolent motive of setting the culprit, after a brief punishment, free to start a new life”?

44. When the gross nature of the outrage involved in the examination becomes known to them, many refuse to sign the voluntary submission a second time, and have to be taken before a magistrate.

45. See Chapter v.

46. Not only is the case treated summarily under the Contagious Diseases Acts, and thus the safeguard of jury trial taken away, but even the safeguards which are generally allowed in summary cases are taken away. In other summary cases, where the imprisonment adjudged shall exceed one month, there is the right of appeal to the general or quarter sessions (see Appendix). But even this appeal is not allowed under the Contagious Diseases Acts, although (see clause 7, Act 1869, and clause 26, Act 1866) the woman may be imprisoned for nine months, and (see clause 28, Act 1866) may be imprisoned for three months with hard labour.

47. Blackstone, Book iii. p. 367.

48. If the reader will in the following speech substitute the words “Contagious Disease” for “Smuggling,” and make several consequent alterations, he will find that this address stands as that of a man rising from the dead to plead on our behalf.

49. Compare with this, clause 4, Act 1869, where information is to be lodged against a woman of whom the policeman has “good cause to believe” that she has been “outside of those limits for the purpose of prostitution.” The reader will observe that the policeman here has not suspicion necessarily of any act perpetrated, but merely he has suspicion that this woman harbours in her breast a certain intention.

50. If Lord Hardwicke could use this language in respect to the danger which every honest man was subjected by a law directed against smugglers only, how much more are we justified in saying that every woman encounters dangers of as grave a kind by the existence of a law directed against unchaste women?

51. Only one witness is required under the Contagious Diseases Acts.

52. How easily an innocent action may be misconstrued under the Contagious Diseases Acts may be seen by the evidence of Mr. Parsons, an examining surgeon under these Acts, who when examined by the Parliamentary Committee as to his definition of a prostitute (there being none under the Acts), defined it as “any woman whom there is fair and reasonable grounds to suspect to be going to places which are the resort of prostitutes, and at times when immoral persons are out,” and added, “It is a matter of mannerism more than anything else.”

53. The only witness required under the Contagious Diseases Acts is the paid spy.

54. A woman may be detained for nine months at a time in hospital, on evidence given by the hospital surgeon only (see clause 22, Act 1866, and clause 7, Act 1869); and the hospital authorities, whose servant he is, receive £30 a year for every bed which is filled.

55. If the difficulty of proving innocence in this case be so great, we may consider the difficulty much greater for a woman to prove, not only that she had no intention of an evil nature, but that she is in fact a chaste woman. It has been said that it is impossible even for Diana herself to prove her own chastity.

56. In a recent pamphlet, one of the supporters of the Contagious Diseases Acts says of the women, “No crime is laid to their charge!” See Lane’s answer to Duncan M‘Laren.

57. This is precisely what we say of the Acts which we oppose.

58. The malicious whisper of a single man, under the Contagious Diseases Acts, may destroy the character of a woman. A gentleman who lately visited Paris was sitting in the boulevards with a young Frenchman, who, observing a great many young women passing, remarked to his English companion, “I could have any one of these sent to prison to-morrow by a single word to the inspector of police.”

59. Let the reader compare this with the description of the state of Paris given by M. Le Cour himself, the Prefect of the Police Médicale. There is a staff of special police appointed for the “surveillance” of the public women. It is a post which is despised by the more respectable men who take the office of regular police. These women-hunters or “Mouchards” are intrusted with large and arbitrary powers for hunting down and imprisoning these women. What is the effect? Is prostitution thereby restrained? I quote Le Cour’s own words (Prostitution in London and Paris, 1789–1870, by M. Le Cour):—“These public women are everywhere, in the drinking shops, the music saloons, the theatres, the balls; they haunt the public establishments, the railway stations and carriages, they push respectable women off the pavement, they roll in carriages, they frequent the Bois de Boulogne, they plant themselves outside every coffee-house, they drive slowly along the footpaths, there is a place by the lady’s side which she seems to offer to the passer-by; there are hotels which freely open their doors to them at any hour if they do not come alone.” As with the French smugglers spoken of by Lord Hardwicke, the rigour under which they lived gave rise to an esprit de corps which enabled them to brave the authorities, so do the most vicious persons in Paris band themselves together as a compact community to defy authority. To quote Le Cour again: “Panderers are numerous at Paris, where they find more than anywhere else in the world the opportunity of practising their manœuvres and escaping the attention of the authorities. They keep registrary offices and restaurants, they sell articles for the toilet, millinery, gloves, or perfumes, and they constitute true snares for all young girls who are engaged as workwomen and employées.” Mme. Daubie also says in her book, La Femme Pauvre, that panderers and procurers band themselves together in such a compact corps d’élite that they are able to engage the best houses in the city on the best terms, and to oppose any measures adopted by the authorities which may seem to be unfavourable to their abominable traffic.

60. Compare this with the Saturday Review and Pall Mall Gazette remarks about “shrieking sisterhoods.”

61. Parliamentary History, vol. ix. p. 1253.

62. It had been urged that the customs could not be collected unless the Bill against smugglers was passed.

63. It would seem that Parliament is not now independent of the permanent Officers of State, as, for instance, the authorities at the Horse Guards.

64. Compare this with what Blackstone says when speaking of the operations of just law being necessarily slow; that arises, says he, from “liberty, property, civility, commerce, and an extent of populous territory, which whenever we are willing to exchange for tyranny, poverty, barbarism, idleness, and a barren desert, we may then enjoy the same despatch of causes as is so highly extolled in some foreign countries.”

65. The pretence of the Contagious Diseases Acts may be reckoned as the lowest possible pretence, for it is that of attempting to preserve a man from the bodily inconveniences attending vicious habits, which by his own will he could avoid.

66. Speech delivered by Lord Chatham on the 20th November 1777.

67. If they had adopted the former definition without reserving this power of arbitrary omission, this law would have told too heavily upon the great; but even supposing that virtue might have continued to wink even under this law, still oblivious to them, and might have continued, as doubtless it would, to regard that as pardonable frailty in high life which is called prostitution among the humbler classes, yet there are others who, under this law, might have been too conveniently assailed; for policemen, examining surgeons, nay even sometimes justices of the peace, may not be unacquainted with temporary connections with that mistress, their appreciation of whose faithfulness makes them dread for her the severity of such a definition.

68. This appearance before the justice is only in case of disobedience to the Acts. In the first and all-important process of determining whether the woman be moral or vicious, not 10 per cent. of the women ever see the face of their judge, who condemns them on the hearsay evidence of the spy alone!

69. So anxious has our Legislature ever been to establish mercy even to convicted offenders, as a fundamental principle of government, that they made it an express article of that great public compact framed at the era of the Revolution—the Bill of Rights—that “no cruel and unusual punishments” should ever be enforced (see Bill of Rights, art. x.). They even added a clause for that purpose to the oath which kings and queens were thenceforward to take at their coronation, thus endeavouring to render it an everlasting obligation to English monarchs to make justice “to be executed with mercy.” In the same spirit they availed themselves, not only of the crisis of the Revolution, but of every important occasion, to procure new confirmations to be given to the right of trial by jury, and in general to the purity and integrity of our system of criminal jurisprudence. A curious debate took place in Parliament in 1605 (see Parliamentary Hist., vol. v.) on a proposal to introduce some unusual form of punishment for certain criminals. The motion was very speedily rejected. I find in some ancient books on law, that even in the execution of the “peines fortes et dures,” regard was to be had to decency. A harrowing narrative of bodily pains, inflicted in order to urge the victim to confession, ends with the injunction to stop short of personal indecency towards him or her; this last agony was seldom inflicted, and only under the most oppressive tyranny, and by a cruel and shameless executive. It is impossible to dwell further on this subject; nor can one read such records without a burning shame on account of the degeneracy in this particular of our own times. It will be a sad day for Her Majesty when she wakes up to the full knowledge of the fact that she—a woman, a gracious and virtuous woman—has signed away with her own hand the liberties of a vast multitude of her subjects in a more complete fashion than has been attempted since the days of the Stuarts, and that she has unwittingly sanctioned deeds which make the heart of womanhood to freeze with horror.

70. Trial of John Wilkes, A.D. 1763.

71. Lieber, vol. i. p. 56.

72. “Trial itself,” says Lieber (vol. i. p. 182), “though followed by acquittal, is a hardship.” It is a peculiar hardship in the case of an accusation against a woman’s honour, which, even where satisfactorily disproved, generally imposes a greater or less social stigma on the person falsely accused. Yet this disproval is all but impossible.

73. The imprisonment inflicted under clause 28, Act 1864, falls upon those women who have any spark of modesty or virtue left, and may drive it out of them.

74. Compare this with the indiscriminate herding together of the women under the Acts in the examining-house.

75. Poor women in the subjected districts have said to me: “Pretty girls get off far more easily than plain ones.”

76. English Constitution, p. 372.

77. Ibid. p. 374.

78. Commentaries, p. 373.

79. See Dr. Lyon Playfair’s speech in the House. See also Lane’s pamphlet, p. 15. See also the Report of the Committee of the House of Commons, from which we make the following extract:—

“116. Question—Do you know of your own knowledge whether it is not the case that attempts to reform these women by approaching them with direct moral and religious advice, while they are pursuing their avocation, are generally unsuccessful? Answer—It is almost always inoperative.

“117. I suppose it has been attempted at Devonport by clergymen and others?—Very constantly.”

The effrontery of this statement is almost unparalleled when we consider the glorious but hitherto unappreciated achievements of the various Rescue Societies.

80. Lane’s answer to Duncan M‘Laren.

81. Preface to the Areopagitica.

82. “Thoughts on the Cause of the Present Discontents.”—Burke’s Works, p. 140.

83. With these considerations in their mind, I can conceive how safe and comfortable the fathers of the Contagious Diseases Acts felt themselves—no visions of a future possible repeal of this Act to trouble them!

84. “I am very much afraid,” says a member of Parliament in a recent letter, “that one cause of our weakness in fighting this battle in the House is, that there are too many of its members who secretly like these Acts, as making, as they think, their own immoralities less personally dangerous to them; there are many most excellent men on both sides, but I am afraid there are also many on whom wealth and station have had an injurious effect, who spend their lives merely for pleasure, and care nothing for higher considerations. This may seem strong language, but it is, I fear, too true.”

85. English Constitution.

86. De Lolme.

87. Rousseau’s Social Contract, chap. viii.

88. “Such arbitrary courses have an ill operation upon the courage of a nation, by embasing the hearts of the people. A servile condition does, for the most part, beget in men a slavish temper and disposition. Those that live so much under the whip and the pillory, and such servile engines as were frequently used by the Earl of Strafford, they may have the dregs of valour, sullenness, and stubbornness which may make them prone to mutinies and discontents. Shall it be treason to embase the king’s coin, though but a piece of twelve pence, or six pence? and must it not needs be the effect of a greater treason to embase the spirits of his subjects, and to set a stamp and character of servitude upon them whereby they shall be disabled to do anything for the service of the king and commonwealth?”—Pym’s Speech on the Trial of the Earl of Strafford.