Josephine Butler’s publications in 1871 included Sursum Corda, the substance (much expanded) of a speech delivered at the annual meeting of the Ladies’ National Association, two Addresses delivered at Croydon and at Edinburgh respectively, and The Constitution Violated, the most solid and weighty of all her utterances on the Contagious Diseases Acts. The main argument of the last mentioned work is given in the following pages.

The enactments called the Contagious Diseases Acts, passed respectively in 1866 and 1869, may be regarded from several points of view. With their medical aspect and the statistical consideration of their results on public health it is not my intention to deal. It has been dwelt on by other people and in other places fully.

The moral side of the question is undoubtedly the most important, and has been dwelt upon by the religious portion of the community, almost to the exclusion of others, although it may be truly said that it of necessity includes all others.

There is however one aspect of the question which has not been sufficiently set forth, that is, the constitutional aspect, including the effect which such legislation must have on our social and moral life as a nation, from a political point of view.

I am convinced that the people of this country are as yet but very partially awakened to the tremendous issues involved in the controversy before us, considered as a matter of constitutional rights; therefore it is that I venture, though I am no lawyer, to bring before them its extreme importance under that aspect. For this time of agony for the patriot, who can in any degree foresee the future of that country which violates the eternal principles of just government, drives many of us, unlearned though we be, to search the annals of our country, to enquire into past crises of danger, and the motives and character of the champions who fought the battles of liberty, with that keenness and singleness of purpose with which, in the agony of spiritual danger, the well-nigh shipwrecked soul may search the Scriptures of God, believing that in them he has eternal life.

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 Lolme12 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.”

The words “by the law of the land” have been taken by some not to refer to jury trial. Attempts have been made to justify illegal proceedings by this interpretation. This has given rise to arguments and enactments, by means of which the relation of these words to jury trial has been settled beyond dispute. And it is these arguments and enactments which, as much as anything else, have thrown light on the ancient institution of jury trial, and have confirmed, as a lasting and inalienable part of the Constitution, this ancient “law of the land.” One of the most marked discussions on this subject, ending with the establishment of the principle which we have laid down, that jury trial is the one constitutional form of trial recognised in Magna Charta, took place in the reign of Charles I, when Judge Selden, at the time of the arrest of the five members, made a famous speech, pleading for the release of Sir E. Hampden from illegal imprisonment, on the ground that these words, “by the law of the land,” showed that it was illegal to imprison him by any other method than that of jury trial.

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.”

In answer to our objections to these Acts, it is utter vanity and folly in anyone 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.

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.”13

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,14 “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.”

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 thirty-ninth 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 for himself and his country: Shall we have liberty in lust, or shall we have political freedom? We cannot retain both.

Early in 1872 the Home Secretary, Mr. Bruce, introduced a Bill to repeal the Contagious Diseases Acts, and to substitute provisions dealing with the subject in a different manner. Some opponents of the Acts at first were inclined to accept this compromise, but Josephine Butler issued a Letter on the subject of Mr. Bruce’s Bill, and a leaflet entitled, A Few Words addressed to True-hearted Women, in which she closely examined the measure, and showed that it was really open to the same moral and other objections that had been raised against the Acts which it was intended to replace. The agitation against the Bill, which was thus roused, led to its ultimate withdrawal. In this year also she published another pamphlet, The New Era, dealing with the fight against the regulation system in Berlin, the lessons to be learned from past failure, and the source from which hope for the future was to be derived.

The repealers at this period took part in several by-elections, notably that at Pontefract, when scenes of greater violence than those at Colchester occurred, showing the fierce feelings roused by this moral controversy. We cannot attempt to record the whole course of the seventeen years’ struggle, to notice the separate leagues and societies formed to oppose the Acts, the large number of public meetings, petitions to Parliament, and other active measures taken by the Abolitionists; but some idea of the vigour of the fight may be gathered from the fact that in one year, 1873, over two hundred and fifty public meetings were held, besides fifteen important conferences, at most of which Josephine Butler took a leading part.

In spite of great encouragements now and again, we were from year to year forced to confess that the prospect of victory was much more distant than we at first imagined. Looking back over those years, we can now see the wisdom of God in allowing us to wait so long for the victory. For the mere legislative reform, or rather undoing and repairing, which was our immediate object, was but a small part of the great and vital movement which it was His design to create and maintain for the purifying of the nations; and if we had obtained a speedy triumph there would not have been that great awakening of consciences which we have witnessed, resulting in practical and lasting reforms. At times the struggle between opposing principles was very severe; and hostile criticisms, censures—public and private—accusations, invective, and bitter words fell upon us at certain crises as thickly as the darts of Apollyon on Christian’s armour at the entrance of the dark valley. Motives of the worst kind were sometimes imputed, among the most frequent being that of a lurking sympathy, not with the sinners alone, but with their most hateful sins. A certain class of our enemies thought themselves happy, it seemed, in inventing a dart which they believed would strike home in our own case; they sought diligently to spread an impression that some tragic unhappiness in our married life was the impelling force which had driven me from my home to this work, and coarse abuse was varied by hypocritical expressions of pity and sympathy.

But they were the most unworthy alone—the lewd fellows of the baser sort naturally—by whom this kind of scourging was inflicted or attempted. It only had the effect of strengthening our indifference to all selfish, impure, and interested opposition, and of deepening our thankfulness for the good gifts of peace and unity of heart in our home. Such manifestations however taught us much of the deeper meanings of these “signs of the times.” Much more serious practically was the opposition of honourable opponents, men of education, high character and honesty, who in some cases had openly given their names in favour of a principle and a measure which happily many of them learned to regard later with suspicion and abhorrence.

On May 21st, 1873, the first debate and division in Parliament took place on our question, which had been courageously and ably pioneered in the House of Commons by William Fowler, a member of the Society of Friends, and which afterwards (when Mr. Fowler lost his seat for Cambridge) was taken in hand with equal ability and courage by Sir Harcourt Johnstone. My husband congratulated me and himself heartily on the division. The majority against us was 137, yet he could rejoice! And justly so, for in counting up our probable friends in the House we had not dared to hope that we should have as many as those who actually voted for us, viz. 128.

It was on this occasion that old Mr. Henley spoke in the House of Commons the following solemn words (respect for his personal character caused members on both sides of the House to listen in perfect silence, a silence so great that though his voice was feeble all he said was distinctly heard): “It is complained,” he said, “that this agitation is carried on by women; but we cannot shut our eyes to the fact that women are most affected by this legislation. We men do not know what women suffer. Unless they tell us, we cannot know. In this matter women have placed their feet upon the ‘Rock of Ages,’ and nothing will force them from their position. They knew full well what a cross they would have to bear, but they resolved to take up that cross, despising the shame. It was women who followed Christ to His death, and remained with Him while others forsook Him, and there are such women amongst us now.”

In a division on the question of Women’s Suffrage, which occurred about this time, Mr. Henley, who had till then been opposed to granting the parliamentary franchise to women, voted in favour of it, and spoke a few very touching words. He told me, that the experience he had now had of the injustice, which Parliament (not excluding the good men in Parliament) is capable of inflicting on women, had convinced him that they (women) must labour for and obtain direct representation on equal terms with men.