Chapter 15
"The author, Doctor Knowlton, professes to deal with the subject of population. Now, a century ago a great and important question of political economy was brought to the attention of the scientific and thinking world by a man whose name everybody is acquainted with, namely, Malthus. He started for the first time a theory which astonished the world, though it is now accepted as an irrefragable truth, and has since been adopted by economist after economist. It is that population has a strong and marked tendency to increase faster than the means of subsistence afforded by the earth, or that the skill and industry of man can produce for the support of life. The consequence is that the population of a country necessarily includes a vast number of persons upon whom poverty presses with a heavy and sad hand. It is true that the effects of over-population are checked to a certain extent by those powerful agencies which have been at work since the beginning of the world. Great pestilences, famines, and wars have constantly swept away thousands from the face of the earth, who otherwise must have contributed to swell the numbers of mankind. The effect, however, of this tendency to increase faster than the means of subsistence, leads to still more serious evils amongst the poorer classes of society. It necessarily lowers the price of labor by reason of the supply exceeding the demand. It increases the dearth of provisions by making the demand greater than the supply, and produces direful consequences to a large class of persons who labor under the evils, physical and moral, of poverty. You find it, as described by a witness called yesterday, in the overcrowding of our cities and country villages, and the necessarily demoralising effects resulting from that over-crowding. You have heard of the way in which women--I mean child-bearing women--are destroyed by being obliged to submit to the necessities of their position before they are fully restored from the effects of child-birth, and the effects thus produced upon the children by disease and early death. That these are evils--evils which, if they could be prevented, it would be the first business of human charity to prevent--there cannot be any doubt. That the evils of over-population are real, and not imaginary, no one acquainted with the state of society in the present day can possibly deny. Malthus suggested, years ago, and his suggestion has been supported by economists since his time, that the only possible way of keeping down population was by retarding marriage to as late a period as possible, the argument being that the fewer the marriages the fewer would be the people. But another class of theorists say that that remedy is bad, and possibly worse than the disease, because, although you might delay marriage, you cannot restrain those instincts which are implanted in human nature, and people will have the gratification and satisfaction of passions powerfully implanted, if not in one way, in some other way. So you have the evils of prostitution substituted for the evils of over-population. Now, what says Dr. Knowlton? There being this choice of evils--there being this unquestioned evil of over-population which exists in a great part of the civilised world--is the remedy proposed by Malthus so doubtful that probably it would lead to greater evils than the one which it is intended to remedy? Dr. Knowlton suggests--and here we come to the critical point of this inquiry--he suggests that, instead of marriage being postponed, it shall be hastened. He suggests that marriage shall take place in the hey-day of life, when the passions are at their highest, and that the evils of over-population shall be remedied by persons, after they have married, having recourse to artificial means to prevent the procreation of a numerous offspring, and the consequent evils, especially to the poorer classes, which the production of a too numerous offspring is certain to bring about. Now, gentlemen, that is the scope of the book. With a view to make those to whom these remedies are suggested understand, appreciate, and be capable of applying them, he enters into details as to the physiological circumstances connected with the procreation of the species. The Solicitor-General says--and that was the first proposition with which he started--that the whole of this is a delusion and a sham. When Knowlton says that he wishes that marriage should take place as early as possible--marriage being the most sacred and holy of all human relations--he means nothing of the kind, but means and suggests, in the sacred name of marriage, illicit intercourse between the sexes, or a kind of prostitution. Now, gentlemen, whatever may be your opinion about the propositions contained in this work, when you come to weigh carefully the views of this undoubted physician and would-be philosopher, I think you will agree with me that to say that he meant to depreciate marriage for the sake of prostitution, and that all he says about marriage is only a disguise, and intended to impress upon the mind sentiments of an entirely different character for the gratification of passion, otherwise than by marriage, is a most unjust accusation. (Applause in court.) I must say that I believe that every word he says about marriage being a desirable institution, and every word he says with reference to the enjoyments and happiness it engenders, is said as honestly and truly as anything probably ever uttered by any man. I can only believe that when the Solicitor-General made that statement he had not half studied the book. But I pass that by. I come to the plain issue before you. Knowlton goes into physiological details connected with the functions of the generation and procreation of children. The principles of this pamphlet, with its details, are to be found in greater abundance and distinctness in numerous works to which your attention has been directed, and, having these details before you, you must judge for yourselves whether there is anything in them which is calculated to excite the passions of man and debase the public morals. If so, every medical work is open to the same imputation."
The Lord Chief Justice then dealt with the question whether conjugal prudence was in itself immoral, and pointed out to the jury that the decision of this very serious question was in their hands:
"A man and woman may say, 'We have more children than we can supply with the common necessaries of life: what are we to do? Let us have recourse to this contrivance.' Then, gentlemen, you should consider whether that particular course of proceeding is inconsistent with morality, whether it would have a tendency to degrade and deprave the man or woman. The Solicitor-General, while doubtless admitting the evils and mischiefs of excessive population, argues that the checks proposed are demoralising in their effects, and that it is better to bear the ills we have than have recourse to remedies having such demoralising results. These are questions for you, twelve thinking men, probably husbands and fathers of families, to consider and determine. That the defendants honestly believe that the evils that this work would remedy, arising from over-population and poverty, are so great that these checks may be resorted to as a remedy for the evils, and as bettering the condition of humanity, although there might be things to be avoided, if it were possible to avoid them, and yet remedy the evils which they are to prevent--that such is the honest opinion of the defendants, we, who have read the book, and who have heard what they have said, must do them the justice of believing. I agree with the Solicitor-General if, with a view to what is admitted to be a great good, they propose something to the world, and circulate it especially among the poorer classes, if they propose something inconsistent with public morals, and tending to destroy the domestic purity of women, that it is not because they do not see the evils of the latter, while they see the evils of the former, that they must escape; if so, they must abide the consequences of their actions, whatever may have been their motive. They say, 'We are entitled to submit to the consideration of the thinking portion of mankind the remedies which we propose for these evils. We have come forward to challenge the inquiry whether this is a book which we are entitled to publish.' They do it fairly, I must say, and in a very straightforward manner they come to demand the judgment of the proper tribunal. You must decide that with a due regard and reference to the law, and with an honest and determined desire to maintain the morals of mankind. But, on the other hand, you must carefully consider what is due to public discussion, and with an anxious desire not, from any prejudiced view of this subject, to stifle what may be a subject of legitimate inquiry. But there is another view of this subject, that Knowlton intended to reconcile with marriage the prevention of over-population. Upon the perusal of this work, I cannot bring myself to doubt that he honestly believed that the remedies he proposed were less evils than even celibacy or over-population on the one hand, or the prevention of marriage on the other hand--in that honesty of intention I entirely concur. But whether, in his desire to reconcile marriage with a check on over-population, he did not overlook one very important consideration connected with that part of society which should abuse it, is another and a very serious consideration."
When the jury retired there was but one opinion in court, namely, that we had won our case. But they were absent for an hour and thirty-five minutes, and we learned afterwards that several were anxious to convict, not so much because of the book as because we were Freethinkers. At last they agreed to a compromise, and the verdict delivered was: "We are unanimously of opinion that the book in question is calculated to deprave public morals, but at the same time we entirely exonerate the defendants from any corrupt motives in publishing it."
The Lord Chief Justice looked troubled, and said gravely that he would have to direct them to return a verdict of guilty on such a finding. The foreman, who was bitterly hostile, jumped at the chance without consulting his colleagues, some of whom had turned to leave the box, and thus snatched a technical verdict of "guilty" against us. Mr. George Skinner, of 27, Great Chapel Gate, Westminster, wrote to me on the following day to say that six of the jurymen did not consent to the verdict of "guilty", and that they had agreed that if the judge would not accept the verdict as handed in they would then retire again, and that they would never have given a verdict of guilty; but the stupid men had not the sense to speak out at the right time, and their foreman had his way. The Lord Chief Justice at once set us free to come up for judgment on that day week, June 28th--the trial had lasted till the 21st--and we went away on the same recognizances given before by Mr. Bradlaugh, an absolutely unprecedented courtesy to two technically "convicted prisoners".[1]
[Footnote 1: A Report of the Trial can be obtained from the Freethought Publishing Company, price 5s. It contains an exact report of all that was said and done.]
XVI.
The week which intervened between the verdict of the jury and the day on which we were ordered to appear in Court to receive sentence was spent by us in arranging all our affairs, and putting everything in train for our anticipated absence. One serious question had to be settled, but it did not need long consideration. What were we to do about the Knowlton pamphlet? We promptly decided to ignore the verdict and to continue the sale. Recognising that the fact of this continued sale would be brought up against us in Court and would probably seriously increase our sentence, we none the less considered that as we had commenced the fight we were bound to maintain it, and we went on with the sale as before.
On June 28th we attended the Court of Queen's Bench to receive judgment, the Lord Chief Justice and Mr. Justice Mellor being on the Bench. We moved to quash the indictment, on arrest of judgment, and for a new trial, the first on the ground that the indictment did not set out the words complained of. The judges were against us on this, but it is interesting to note that the Lord Chief Justice remarked that "the language of the book is not open to any particular objection". I argued that the jury, having exonerated us from any corrupt motive, could not be regarded as having found us guilty on an indictment which charged us with a corrupt motive: the Lord Chief Justice held that "in the unnecessary and superfluous part of the indictment, there is no judgment against you", and refused to believe that anyone would be found afterwards so base as to accuse us of evil intent, because of the formal words of the indictment, the jury having acquitted us of any corrupt intention. The judge unfortunately imputed to others his own uprightness, and we have found many--among them Sir W.T. Charley, the present Common Sergeant-- vile enough to declare what he thought impossible, that we were found guilty of wilfully corrupting the morals of the people. The judges decided against us on all the points raised, but it is due to them to say that in refusing to quash the indictment, as Mr. Bradlaugh asked, they were misled by the misrepresentation of an American case by Sir Hardinge Giffard, and, to quote the words of the Lord Chief Justice, they sheltered themselves "under the decisions of the American Courts, and left this matter to be carefully gone into by the Court of Error".
The question of sentence then arose, and two affidavits were put in, one by a reporter of the _Morning Advertiser_, named Lysaght. This individual published in the _Advertiser_ a very garbled report of a meeting at the Hall of Science on the previous Sunday, evidently written to anger the Lord Chief Justice, and used by Sir Hardinge Giffard with the same object. In one thing, however, it was accurate, and that was in stating that we announced our intention to continue the sale of the book. On this arose an argument with the Lord Chief Justice; he pointed out that we did not deny that the circulation of the book was going on, and we assented that it was so. It was almost pathetic to see the judge, angry at our resolution, unwilling to sentence us, but determined to vindicate the law he administered. "The question is," he urged, "what is to be the future course of your conduct? The jury have acquitted you of any intention to deliberately violate the law; and that, although you did publish this book, which was a book that ought not to have been published, you were not conscious of the effect it might have, and had no intention to violate the law. That would induce the Court, if it saw a ready submission on your part, to deal with the case in a very lenient way. The jury having found that it was a violation of the law, but with a good motive or through ignorance, the Court, in awarding punishment upon such a state of things, would, of course, be disposed to take a most indulgent view of the matter. But if the law has been openly set at defiance, the matter assumes a very different aspect, and it must be dealt with as a very grave and aggravated case." We could not, however, pledge ourselves to do anything more than stop the sale pending the appeal on the writ of error which we had resolved to go for. "Have you anything to say in mitigation?" was the judge's last appeal; but Mr. Bradlaugh answered: "I respectfully submit myself to the sentence of the Court"; and I: "I have nothing to say in mitigation of punishment".
The sentence and the reason for its heavy character have been so misrepresented, that I print here, from the shorthand report taken at the time, the account of what passed:--
"The LORD CHIEF JUSTICE, after having conferred for some minutes with Mr. Justice Mellor, said: The case has now assumed a character of very, very grave importance. We were prepared, if the defendants had announced openly in this Court that having acted in error as the jury found--of which finding I think they are entitled to the benefit--but still having been, after a fair and impartial trial, found by the jury guilty of doing of that which was an offence against the law, they were ready to submit to the law and to do everything in their power to prevent the further publication and circulation of a work which has been declared by the jury to be a work calculated to deprave public morals, we should have been prepared to discharge them on their own recognizances to be of good behavior in the future. But we cannot help seeing in what has been said and done pending this trial, and since the verdict of the jury was pronounced, that the defendants, instead of submitting themselves to the law, have set it at defiance by continuing to circulate this book. That being so I must say that that which before was an offence of a comparatively slight character--looking to what the jury have found in reference to the contention of the defendants--now assumes the form of a most grave and aggravated offence, and as such we must deal with it. The sentence is that you, Charles Bradlaugh, and you, Annie Besant, be imprisoned for the term of six calendar months; that you each pay a fine of £200 to the Queen; and that you enter further into your own recognizances in a sum of £500 each to be of good behavior for the term of two years; and I tell you at the same time that you will not be of 'good behavior' and will be liable to forfeit that sum if you continue to publish this book. No persuasion or conviction on your part that you are doing that which is morally justifiable can possibly warrant you in violating the law or excuse you in doing so. No one is above the law; all owe obedience to the law from the highest to the lowest, and if you choose to set yourself at defiance against the law--to break it and defy it--you must expect to be dealt with accordingly. I am very sorry indeed that such should be the result, but it is owing to your being thus contumacious, notwithstanding that you have had a fair trial, and the verdict of a competent jury, which ought to have satisfied you that you ought to abstain from doing what has been clearly demonstrated and shown to be wrong.
"Mr. BRADLAUGH: Would your lordship entertain an application to stay execution of the sentence?
"The LORD CHIEF JUSTICE: Certainly not. On consideration, if you will pledge yourselves unreservedly that there shall be no repetition of the publication of the book, at all events, until the Court of Appeal shall have decided contrary to the verdict of the jury and our judgment; if we can have that positive pledge, and you will enter into your recognizances that you will not avail yourselves of the liberty we extend to continue the publication of this book, which it is our bounden duty to suppress, or do our utmost to suppress, we may stay execution; but we can show no indulgence without such a pledge.
"Mr. BRADLAUGH: My lord, I meant to offer that pledge in the fullest and most unreserved sense, because, although I have my own view as to what is right, I also recognise that the law having pronounced sentence, that is quite another matter so far as I, as a citizen, am concerned. I do not wish to ask your lordship for a favor without yielding to the Court during the time that I take advantage of its indulgence.
"The LORD CHIEF JUSTICE: I wish you had taken this position sooner.
"Mr. BRADLAUGH: If the sentence goes against us, it is another matter; but if you should consent to give us time for the argument of this writ of error, we would bind ourselves during that time. I should not like your lordship to be induced to grant this request on the understanding that in the event of the ultimate decision being against me I should feel bound by that pledge.
"The LORD CHIEF JUSTICE: I must do you the justice to say that throughout the whole of this battle our conduct has been straightforward since you took it up.
"Mr. BRADLAUGH: I would not like your lordship to think that, in the event of the ultimate decision being against us, there was any sort of pledge. I simply meant that the law having pronounced against us, if your lordship gives us the indulgence of fighting it in the higher Court, no sort of direct or indirect advantage shall be taken of the indulgence.
"The LORD CHIEF JUSTICE: You will not continue the publication?
"Mr. BRADLAUGH: Not only will I stop the circulation of the book myself, but I will do all in my power to prevent other people circulating it.
"The LORD CHIEF JUSTICE: Then you can be discharged on your own recognizances for £100, 'to be of good behavior,' which you will understand to mean, that you will desist from the publication of this work until your appeal shall have been heard, and will engage to prosecute the appeal without delay.
"Mr. BRADLAUGH: Certainly; until the present, I have undoubtedly circulated the book. Although there is a blunder in the affidavits I do not disguise the matter of fact. I shall immediately put the thing under my own control, and I will at once lock up every copy in existence, and will not circulate another copy until the appeal is decided.
"Mr. JUSTICE MELLOR: It must be that you will really, to the best of your ability, prevent the circulation of this book until this matter has been determined.
"The LORD CHIEF JUSTICE: And what Mr. Bradlaugh says, I understand that you, Mrs. Besant, also assent to?
"Mrs. BESANT: Yes: that is my pledge until the writ of error has been decided. I do not want to give a pledge which you may think was not given honestly. I will give my pledge, but it must be understood that the promise goes no further than that decision.
"Mr. JUSTICE MELLOR: You will abstain yourself from circulating the book, and, so far as you can, suppress its circulation?
"Mr. BRADLAUGH: Every copy that is unsold shall be at once put under lock and key until the decision of the case.
"The SOLICITOR-GENERAL: My lord, I think there should be no misunderstanding upon this; I understand that the defendants have undertaken that during the pendency of the appeal this book shall not be circulated at all. But if the decision should be against them they are under no pledge not to publish.
"Mr. BRADLAUGH: I hope your lordship will not ask us what we shall do in future.
"The LORD CHIEF JUSTICE: We have meted out the amount of punishment upon the assumption--there being no assertion to the contrary, but rather an admission--that they do intend to set the law at defiance. If we had understood that they were prepared to submit themselves to the law, we should have been disposed to deal with them in the most indulgent manner; but as we understood that they did not intend this, we have meted out to them such a punishment as we hope, when undergone, will have a deterrent effect upon them, and may prevent other people offending in like manner. We have nothing to do with what may happen after the defendants obtain a judgment in their favor, if they do so, or after the sentence is carried out, if they do not. Our sentence is passed, and it will stand, subject only to this, that we stay execution until a writ of error may be disposed of, the defendants giving the most unqualified and unreserved pledge that they will not allow another copy of the book to be sold.
"Mr. BRADLAUGH: Quite so, my lord; quite so."