On the occasion of an infringement of a constitutional principle by Parliament itself, a century ago, Lord Chatham, when urging the House of Lords to retrace this fatal step, used the following words: “If I had a doubt upon this matter, I should follow the example set us by the most reverend bench, with whom I believe it is a maxim, when any doubt in point of faith arises, or any question of controversy is started, to appeal at once to the greatest source and evidence of our religion—I mean the Holy Bible. The Constitution has its political Bible also, by which, if it be fairly consulted, every political question may and ought to be determined. Magna Charta, the Petition of Rights, and the Bill of Rights form that code which I call the Bible of the English Constitution. “[6]
In following out this advice of Lord Chatham, it is to these authorities that I wish to appeal in determining the exact nature of those principles of the Constitution which I assert have been violated. I am aware that in doing so I may incur criticism on account of my ignorance of legal terms and definitions, and on account of unskilfulness in the arrangement of the matter before me. I shall be satisfied however, if I succeed in commending my subject to those to whom I particularly address myself—I mean the working men and working women of England. Neither they nor I have had a legal training, but we may alike possess a measure of that plain English common sense which, to quote again Lord Chatham’s words, is “the foundation of all our English jurisprudence,” which common sense tells us that “no court of justice can have a power inconsistent with, or paramount to, the known laws of the land, and that the people, when they choose their representatives, never mean to convey to them a power of invading the rights or trampling upon the liberties of those whom they represent.”[7] Further on in this essay I shall show that Parliament, in making the Contagious Diseases Acts, has invaded and trampled on the liberties of the people.
Among the clauses in Magna Charta, there is one upon which the importance of all the others hinges, and upon which the security afforded by the others practically depends. This clause, and the supplementary clause which follows it, have been those whose subject has formed, more than any other, matter and occasion for the great battles fought for English liberty and right since the charter was signed by King John.
They are the thirty-ninth and fortieth clauses of King John’s Charter, and the twenty-ninth of that of King Henry III, and are as follows:—
39. NO FREEMAN SHALL BE TAKEN, OR IMPRISONED, OR DISSEISED, OR OUTLAWED, OR BANISHED, OR ANYWAYS DESTROYED, NOR WILL WE PASS UPON HIM, NOR WILL WE SEND UPON HIM, UNLESS BY THE LAWFUL JUDGMENT OF HIS PEERS, OR BY THE LAW OF THE LAND.
40. WE WILL SELL TO NO MAN, WE WILL NOT DENY TO ANY MAN EITHER JUSTICE OR RIGHT.
“These clauses are the crowning glories of the great charter.”[8] Mr. Hallam calls them its “essential clauses,”[9] being those which “protect the personal liberty and property of all freemen, by giving security from arbitrary imprisonment and spoliation.”[10] The same high authority observes that these words of the great charter, “interpreted by any honest court of law, convey an ample security for the two main rights of civil society.” The principles of this clause of the great charter, which, if we look backwards, are lost in antiquity, were subsequently confirmed and elucidated by statutes and charters of the reign of Henry III and Edward III entitled “confirmationes cartarum.”“The famous writ of Habeas Corpus was framed in conformity with the spirit of this clause; that writ, rendered more actively remedial by the statute of Charles II, but founded upon the broad basis of Magna Charta, is the principal bulwark of English liberty, and if ever temporary circumstances, or the doubtful plea of necessity, shall lead men to look on its denial with apathy, the most distinguishing characteristic of our constitution will be effaced. “[11] The same powerful testimony is given by De Lolme, Guizot and De Tocqueville.
It is precisely these very clauses, thus endearingly eulogised by these great historians and lawyers of various nations, which stand violated both in letter and in principle by the Contagious Diseases Acts.
It is not requisite for my purpose to enter into a critical examination of each of the words and phrases of the great clause of Magna Charta referred to, nor even to quote a selection of comments on these words and phrases from the voluminous writings which exist on the subject. There are two expressions however, as to the meaning of which I shall make a few remarks. The first, as bearing more particularly on the subject in hand, viz. the phrase “or anyways destroyed,” and the second, the words “by the law of the land,” in order that I may with respect to these words correct a misunderstanding which may arise in the mind of a reader who reads them without the light of those subsequent comments and charters which have elucidated Magna Charta.
As to the first phrase, Blackstone, as well as other writers, gives a very wide signification to this word “destroy,” and in general terms it may be said that they agree in understanding that these words of the charter sternly forbid any proceeding on the body of an accused person unless after trial by jury. If it were possible for me here to describe in detail that proceeding which the Acts in question sanction upon the body of a person suspected or accused, who has been condemned without any jury trial, no further words of mine would be needed to convince my readers that this proceeding comes within the scope of that word “destroy.” The expression in Magna Charta, “We will destroy no one unless by the judgment of his peers,” is by the great lawyers interpreted to mean that no proceeding of any kind whatever of a compulsory nature shall be permitted on the person of anyone except after jury trial. Blackstone and others, to make the matter more plain, minutely define those cases in which alone this prohibition of Magna Charta may be set aside, viz. in the punishment of young children by their parents, and of pupils by their masters, but even these were to be kept within the bounds of decency and humanity. I will only quote the words of De Lolme[12] on this subject: “Thus it was made one of the articles of Magna Charta, that the executive power should not touch the person of the subject, but in consequence of a judgment passed upon him by his peers; and so great was afterwards the general union in maintaining this law, that the trial by jury which so effectually secures the subject against all the attempts of power, even against such as may be made under the sanction of the judicial authority, hath been preserved till this day.”