CHAPTER VII.
I have before alluded to the two great struggles in the history of this country, which, occasioned by the arbitrary encroachments of those in power, led to the more sure establishment of our constitutional privileges. These revolutions and their results, which have been the wonder and admiration of all foreign writers, owing to their success, and the sober and resolute method in which they were conducted, were chiefly brought about through the union of all classes in opposition to these encroachments,—a union not marred by selfish and party interests. These great struggles are worthy of the deep and earnest contemplation of every English man and woman who cares for the welfare of our country, and who, conscious of the ever-recurring tendency in human nature to spoliation and aggression, is sternly jealous of the rights and blessings purchased by the efforts and by the blood of our forefathers. Alarmed again in our own day by the insidious advances of despotic power in the midst of us, and convinced that what is morally wrong can never be politically right, they will turn an earnest and searching gaze upon these records of the past, and in doing so cannot fail to be stimulated to hold fast and contend for, even to death if need be, those blessings which were so hardly and so nobly won. The battle which we have now to fight is in its essential character the same as those which resulted formerly in confirmations of our liberties, and in a firmer establishment of a just and virtuous state. The principles arrayed on either side in this conflict are essentially the same as those which inspired the combatants of the past. Great constitutional rights have ever been vindicated by those out of power against the encroachments of those in power; but the scene of the battle is changed. It is not now the Barons arrayed against the King, nor the insulted Commons against the Court party, and the aggressions of favourites in power. The tyranny which we are now opposing has sprung up in a quarter which in the era of the English Revolution could scarcely have been suspected as likely ever to become dangerous. Our present peril arises from the arbitrary disposition of permanent officers of the Government, aided by the blindness of Her Majesty’s ministers, and the contempt for, or ignorance of, our ancient constitutional rights which prevails among a proportion of the members of both of our Houses of Parliament. The power of the Crown, almost dead and rotten as prerogative, has grown up anew with far more strength in a new quarter, which, still possessing the confidence of the people, makes the exercise of that arbitrary power doubly dangerous. The painful discovery has been made that the forms of a free government and the ends of an arbitrary government are not incompatible. The evil principles at work in this piece of legislation to which we are opposed, went craftily, and too successfully, to work, and the conduct of the promoters of these laws may be described in the following words of Mr. Burke:[82]—
“They who will not conform their conduct to the public good, and cannot now support it by the prerogative of the Crown, have adopted a new plan—they have totally abandoned the shattered and old-fashioned fortress of prerogative, and made a lodgement in the stronghold of Parliament itself. If they have any evil design to which there is no ordinary legal power commensurate, they bring it into Parliament; in Parliament the whole is executed from the beginning to the end; in Parliament the power of obtaining their object is absolute, and the safety of the proceeding perfect—no rules to confine, no after reckonings to terrify.[83] Parliament cannot with any great propriety punish others for things in which they themselves have been accomplices. Thus the control of Parliament upon the executive power is lost, and impeachment, that great guardian of the purity of the constitution, is in danger of being lost even to the very idea of it.”
It must be confessed that the representatives of the people have been false to the people in allowing this surrender of the rights and liberties of any portion of them to be made in secret, and with that stealthy swiftness too clearly indicative of the fears of those who dared so to legislate. Ignorance and absence from the House have been pleaded by many members of Parliament as an excuse for their virtual complicity in this legislation. Their crime against the Constitution may be less than that of those who framed and watched over this legislation, but ignorance may not, any more than presumption, occupy the seat of our lawgivers.[84]
Nevertheless our conviction is, that we shall ere long be able to reckon the Commons once more, as in times past, on the side of right and of constitutional freedom, as opposed to despotism; for we have this trust, that the Commons of England will yet be found faithful, and that the people’s representatives will once more prove themselves the champions and the guardians of our liberties and of our national honour. Were it not for this hope, were it not for the inestimable blessing of a comparatively pure representative system of government, and still more, were it not for our conviction of the love of virtue, freedom, and justice which lives and burns in the great heart of England’s humbler classes, to guide and inspire their representatives, our hearts might die within us as we contemplate the spectacle of the growing infidelity in high places to vital principles, and the audacious attempts to undermine our Constitution, for which attempts, if ignorance be the excuse, our case would be equally deplorable. Yet in spite of ignorance, infidelity, or selfish passion on the part of our rulers, we nevertheless retain that faith in the vigour and purity of English representative government which is breathed in the following noble words of De Lolme:[85]—
“How long soever the people may have remained in a state of supineness as to their most valuable interests, whatever may have been the neglect and even the errors of their representatives, the instant the latter come either to see these errors or to have a sense of their duty, they proceed by means of the privileges we have mentioned to abolish those abuses or practices which during the preceding years had taken the place of the laws. To how low soever a state public liberty may happen to be reduced, they take it where they find it, lead it back through the same path and to the same point from which it had been compelled to retreat; and the ruling power, whatever its usurpations may have been, how far soever it may have overflowed its banks, is ever brought back to its old limits.”
The continuance up to this time of the encroachments made on the Constitution by these Acts which we oppose, may perhaps be accounted for by the fact that the class of persons first assailed were those with whom society has in general the least sympathy; whereas in similar crises of danger in past times our liberties were violated in the person or persons generally of men of rank, influence, or high character. Nevertheless, this was not always the case, for, as Blackstone says, it was the injury done to a common citizen (one Jenks) which gave existence to the Act which completed the security of public liberties; “the oppression of an obscure individual gave rise to the famous Habeas Corpus Act.” Junius has observed that this is worthy of note, for the just idea it conveys of that readiness of all orders of men in England to unite in defence of common liberty. I am convinced that Englishmen now are not so degenerate as not to contend with equal zeal for the redress of wrongs which are no less dangerous because inflicted on a class whom society generally despises, or upon those the humbleness of whose position or whose unsheltered fame leaves it possible for men carelessly to confuse them with the guilty. This encroachment on our liberties has come upon us “like a lion and wolf in one,” rapacious and devouring, but sly and soft-footed. Had our ancient and dearly loved constitutional freedom been attacked in a more open manner, had the first sufferers been persons accustomed to demand and to receive justice, the evil would have been quickly averted, so loud and instantaneous would have been the outcry; but because this lion-wolf set its paw first upon the meanest of England’s citizens, the danger is but the greater. The gallant ship of our Constitution may be as fatally wrecked by the falling of some unseen spark in the remotest, dingiest corner of its hold, as by the flash of lightning which strikes the headmast in the sight of all, and sends it through the waters a perishing mass of flames. “The Hollander in the midst of the storm, though trusting to the strength of the mounds that protect him, shudders no doubt at the sight of the foaming element that surrounds him; but they all give themselves over for lost when they know that the worm has penetrated into their dykes.”[86] “The floods of ungodliness have made me afraid,” says the Psalmist, but we may have even greater reason to fear when the element which is to destroy filters up from beneath. I have pondered the mournful saying of Montesquieu, “Have not Rome, Lacedæmon, and Carthage perished? So will this beautiful system of the English Constitution perish when the legislative power shall have become more corrupt than the executive.” And I ask myself with sorrow, “Can it be that my country has already begun to tread this downward path?” Doubtless when the Legislature has acted the part of a traitor in surrendering the dearest and most ancient rights of any portion of the nation into the hands of the executive, whose power it has ever been the wisdom of our laws to restrain within the strictest limits, it may be said that the legislative power has become more corrupt than that executive which is itself on the highway to corruption through this very cession into its hands of functions which it never ought to exercise.
“Self-government,” Grattan truly said, “is life.” But it is so in the fullest sense only when those who govern themselves, having a voice in the making of the laws which they themselves obey, possess that life of the spirit and that enlightenment of conscience which is nourished in the purity of honourable homes and by the study of the Word of God. And who shall say that there is not still such life in England? The present crisis will test the life which there is in us; it will gauge the moral condition of our people. If it find them degenerated from the manly stature of their forefathers, who were alike the champions of God’s truth and of human liberty, then we may well speak to them the warning words of Rousseau, “Ye free nations, remember this maxim, Freedom may be acquired, but it cannot be recovered.”[87] We have but partially and for a short time lost that freedom; there is yet time to recover lost ground, to turn back the tide of corruption and slavishness[88] which will follow this false step. But the crisis is grave, the necessity for action is urgent, and, if we delay, the time for recovery will be passed; and henceforward we shall be given up, as other nations which we have seen, to the miserable alternations of raging fever and of death-like torpor, of revolution and of despotism.
But this “self-government which is life” has been despised by those holding a commission from the nation. Was this law against which we contend made by the nation? Assuredly not. Nay, nor was it even made by Parliament, but by a mere fraction of Parliament casting off for a time the faith and responsibility of men commissioned by the nation. The people were not yet so degraded as to consent to such a law. Even where their education is but poor, the people nevertheless still know right from wrong; they are yet able to distinguish between truth and falsehood, between freedom and slavery. It may be said of our industrial classes generally as Lord Chatham said of our forefathers who framed the Great Charter:—“Their virtues were rude and uncultivated, but they were great and sincere; their understandings were as little polished as their manners, but they had hearts to distinguish right from wrong; they had heads to distinguish truth from falsehood; they understood the rights of humanity, and they had spirit to maintain them.”
All the evils incident to our system of government arise when that government ceases at any period to be honestly representative of those masses of the people whose spirit we have described; and it is evident that when our rulers are swayed too much by any particular class in the community, they become no longer truly representative.
The narrower the class of persons exercising this undue influence, the greater is the danger; and that danger is heightened still further when this influence proceeds exclusively from men of one profession. The profession to which I now allude is the medical profession. I wish to guard myself against the suspicion of a general and unreasoning prejudice against this profession, which Guizot has styled “the mournfullest and the noblest.” We have all of us too much reason to be grateful to men of that profession, many of whom we know by experience to be among the truest friends of humanity. But physicians who hang about courts, who have the ear of royalty, and of aristocratic public officers, and who exercise an influence over superstitious households of the great, somewhat resembling that formerly exercised by the priest in Italy and Spain, when allowed to influence our legislation in the direct manner which they have done of late, must be content to endure the searching judgment of the people at large, and ultimately to fall under the people’s indignation, if they be found to be interfering with our laws, in defiance or in ignorance of the principles of our Constitution. Such medical men have not unfrequently risen to posts of honour, high among the aristocracy of the land, by an energy and talent which we cannot fail to admire; but it cannot be denied that they frequently attain to excellence in the single line of professional study to which they have been necessarily devoted, at the expense of other portions of education essentially needful for those who would venture on meddling with the great and difficult science of governing. This deficiency is deeply dangerous in persons who have the hardihood to assume the responsibility of prompting the legislative measures of those who are bound to hold themselves accountable to the people alone. While observing the overwhelming influence which these professionals have lately been allowed in the making of laws for the whole nation, I have sometimes been appalled at the evidence which comes before us of their profound ignorance of English history, its noble struggles, the structure and resources of our political system, and the great constitutional principles which we hold dear. They seem to have as little appreciation of these matters as they have of the feelings and souls of human beings. Their ignorance both of our political constitution, and of the principles which animate human nature, are proved by their audacious attempts at wholesale compulsion.[89] They scarcely would have succeeded had they brought their present tactics to bear upon a nation barely emerging from childhood, and accustomed to obey the rule of a despotic monarch. How dangerous is their attempt when made upon a people to whom constitutional freedom is dear, will be proved by the future ruin of the influence of that whole class which has attempted it. The limitations of their education produce a narrowness of intellect, which blinds them to the limits of their own legitimate influence. Hence the fatal mistake into which they have fallen. Compulsion is dear to them as life; the passion for compulsion grows by the indulgence granted to them by our foolish legislators. Who can tell to what they will compel us next? For their ignorance of history and of human nature lead them to run riot in our political constitution, which they do not understand; they tell us such and such questions are purely medical questions, while they are secretly, through carelessness or ignorance, or consciously, robbing us like burglars in the night of our cherished inherited safeguards, dearer to us than wealth or health; and by the arbitrary measures which they persuade a credulous or ignorant Legislature to adopt, by suspending the liberties of the citizen on all hands, and finally by abandoning the vital principle of jury trial in order that a project of theirs may work, they have at last taken that fatal step towards “establishing aristocracy, the most oppressive of absolute governments.” And let the people of England never forget that the government of an aristocracy does not consist in that of wealth or hereditary privileges so much as in that arbitrary power of a particular class, whose enactments are permitted to override the safeguards of our Constitution.
I cannot sufficiently warn the people of England of the need of a jealous watchfulness over the actions of these law-making doctors. The Contagious Diseases Act of 1869 was smuggled through the House of Commons in three days; there is now another Bill emanating from the same source which will probably shortly come also before the House, some of the provisions of which (already alluded to in a note) may be found to be of a character as oppressive though not so immoral as those which I have been describing. It behoves the people of England, therefore, narrowly to watch, lest, through the collusion of doctors and aristocratic law-makers, the liberties of the free citizens of England should be even further and more grievously infringed than they already have been.
I have hitherto bestowed upon our Constitution unmitigated praise; but in the laws of England there is one great and unique defect. We can scarcely open the works of our great lawyers of past times without observing, that, even among those who most eulogize our system of laws, there is an uneasy consciousness of something somewhere wrong. At Liverpool, in the spring of 1870, a case was tried of a man of thirty years of age who had assaulted criminally a child of fourteen years, who had been an under-servant in his house. The defence set up was consent. “Mr. Justice Willes, in passing sentence, said he hoped that, in cases where girls between twelve and fourteen years of age were assaulted or seduced, the question as to their consent would attract public attention, and that largely; he had had to try a great many cases of this kind, especially where girls were servants, and where their masters, instead of protecting the poor children under their charge, had corrupted them; he hoped that what the Bishop of Winchester had so often attempted, though unsuccessfully,—to have the law which extended only to twelve years of age extended to girls of fourteen,—would yet be accomplished, and that outrages upon these little ones would be made an offence against law without any question of consent. He felt very deeply on this subject, and his experience showed him the necessity of protection for girls of tender years; it was quite absurd to suppose that a law which applied to girls of twelve should not apply to girls of fourteen, as girls were mere children up to fully the age of fourteen.”[90] The laws of most other countries make the seduction of any woman under twenty-one a misdemeanour; but our laws, to the disgrace of Englishmen, allow the seduction of any child over twelve. If a villain can persuade the dispensers of the law that he can show that there was consent on the part of the child whom he ruined, he is free. [Acting upon this rule, these Acts we are opposing take children of twelve, and even younger, outrage them, bind them over to return again and again to be outraged, and turn them back upon the streets.] An eye-witness of the trial alluded to remarked that pity and anger strove together in her breast, as she looked at the poor little creature, dwarfed both in body and mind, uneducated, indigent, and exceedingly childish, standing shivering in her ragged pinafore, to be judged as a “woman” who had given the consent of a mature will to the immoral act, and as she thought of the tenderness of the law to the man—with all his advantages of age, education, manner, position, money, and experience of life,—who had ruined that child.
I have here indicated the weak point in English law. The same want of justice appears in the law which, till lately, made marriage the confiscation of all the wife’s earnings, and is further exhibited in the disgracefully slight punishment inflicted for assaults on women and children.[91]
Blackstone says,[92] “It is a remarkable omission in the law of England which, with such scrupulous solicitude, guards the rights of individuals, and secures the morals and good order of the community, that it should have afforded so little protection to female chastity. It is true that it has defended it from force and violence, but it has left it exposed to perhaps greater danger from the artifices and solicitations of seduction. In no case whatsoever, unless she has had a promise of marriage, can a woman herself obtain any reparation for the injury she has sustained from the seducer of her virtue. And even where her weakness and credulity have been imposed upon by the most solemn promises of marriage, unless they have been overheard or made in writing, she cannot recover any compensation, being incapable of giving evidence in her own cause. Nor can a parent maintain any action against the person who has done this wrong to his family, and to his honour and happiness, but by stating and proving that, from the consequences of the seduction, his daughter is less able to assist him as a servant, or that the seducer was a trespasser on his premises. Hence no action can be maintained which is not attended with the loss of service or an injury to property. Therefore in that action for seduction which is in most general use, the father must prove that his daughter actually assisted in some degree, however inconsiderable, in the housewifery of his family, and that she has been rendered less serviceable to him by her pregnancy; or the action might be sustained upon the evidence of a consumption or any other disorder contracted by the daughter in consequence of her seduction, or of her shame and sorrow for the loss of her honour. It is immaterial what is the age of the girl; but it is necessary that she should be living in and considered part of her father’s family. Another action for seduction is a common action for trespass, which may be brought when the seducer has illegally entered the father’s house; in which action the debauching his daughter may be stated as an aggravation of the trespass. But these are the only actions which have been extended, by the modern ingenuity of the courts, to enable an unhappy parent to recover a recompense for the injury he has sustained by the seduction of his daughter.”
I feel sure that the hearts of fathers and mothers among the working classes of England will respond, when I speak of the gross influence and teaching of such a state of the law as this, and of the low estimate of the worth of female honour which alone could have induced it. Here we see that the property of the father, and the material usefulness of his daughter in the house, are set above all the claims of female honour, and above all the considerations of family affection. It is true of nations as well as of individuals, “whatsoever a man soweth that shall he also reap.” We see in all the horrors which our Police Courts at this day reveal to us, of brutality towards women, of heartlessness and treachery in men of the upper classes towards the daughters of the poor, and in the levity and coarseness which accompany the exposure of these villanies, the disgusting and terrible fruits of this one corrupt seed of selfishness and injustice which, for so many generations past, has been marring the beauty of our English laws.[93]
The Contagious Diseases Acts would never have been possible in this country, if Englishmen had not become gradually accustomed, through the educational influences of the gross state of the laws of which I have just spoken, to despise the claims of women as such, and to cease, both in theory and in practice, to grant them that equality of citizenship which the Constitution originally bestowed upon them. The outrage upon Lucretia put an end to the regal government in Rome; that upon Virginia proved the destruction of the power of the Decemvirs; an offence against a woman was the occasion of the bloody vespers of Palermo. In England, at this day, the cry, not of one, but of thousands of outraged women is ascending, and entering into the ears of the God of justice and of vengeance!