Chapter IV

A JUDICIAL VINDICATION OF NEW-MALTHUSIANISM.

As we have shown in the preceding chapter, repeated attempts have been made to suppress, by legal process, the advocacy of New-Malthusian views. Those attempts have failed, as they were bound to fail. By the strange irony of fate, indeed, one of the most powerful, logical and convincing vindications of the prudential limitation of families has proceeded from the judicial bench. The famous judgment delivered by Mr. Justice Windeyer, Senior Puisne Judge of the Supreme Court of New South Wales, on December 12th, 1888, is so important a contribution to the discussion of this question that a chapter may profitably be devoted to a summary of its arguments and conclusions.

A stipendiary magistrate in New South Wales convicted Mr. W. W. Collins on a charge of selling an "obscene" book, viz., The Law of Population, written by Mrs. Annie Besant. Mr. Collins appealed against this conviction to the Supreme Court, consisting of Chief Justice Darley and Justices Windeyer and Stephen. The sole question at issue was whether the work was "obscene"; and upon this the judgment of the Court (the Chief Justice dissenting) was given that the conviction should be set aside.

In delivering judgment, Mr. Justice Windeyer said:

A court of law has now to decide for the first time whether it is
lawful to argue in a decent way with earnestness of thought and
sobriety of language the right of married men and women to limit
the number of the children to be begotten by them by such means as
medical science says are possible and not injurious to health. Of
the enormous importance of this question, not only to persons of
limited means in every society and country, but to nations, the
populations of which have a tendency to increase more rapidly
than the means of subsistence, there cannot be the slightest
doubt. Since the days when Malthus first announced his views on
the subject to be misrepresented and vilified, as originators of
new ideas usually are by the ignorant and unthinking, the question
has not only been pressing itself with increased intensity of
force upon thinkers and social reformers dealing with it in
the abstract, but the necessity of practically dealing with the
difficulty of over-population has become a topic publicly discussed
by statesmen and politicians. It is no longer a question whether
it is expedient to prevent the growth of a pauper population,
with all its attendant miseries following upon semi-starvation,
over-crowding, disease, and an enfeebled national stamina of
constitution; but how countries suffering from all these causes
of national decay shall avert national disaster by checking the
production of children, whose lives must be too often a misery
to themselves, a burden to society, and a danger to the State.

His lordship pointed out that public opinion has so far advanced that the abstract necessity of prudential limitation is now generally admitted. "Statesmen, reviewers, and ecclesiastics join in a common chorus of exhortation against improvident marriages to the working classes, and preach to them the necessity of deferring the ceremony till they have saved the competency necessary to support the truly British family of ten or twelve children." It is, however, futile to hope that celibacy and continence will furnish the solution of the question. The Protestant world has rejected the idea of a celibate clergy as incompatible with purity and the safety of female virtue. How, then, can we expect that men and women, "with their moral nature more or less stunted, huddled together in dens where the bare conditions of living preclude even elementary ideas of modesty, with none of the pleasures of life save those enjoyed in common with the animals--... these victims of a social state, for which the educated are responsible if they do not use their superior wisdom and knowledge for its redress, to exercise all the self-control of which the celibate ecclesiastic is supposed to be incapable"?

The judge then proceeded to argue that, as the evils of over-population were almost universally recognised, the duty of making known to the people the practical method of escaping from them must also be recognised:

Why is the philosopher who describes the nature of the disease from
which we are suffering, who detects the causes which induce it and
the general character of the remedies to be applied, to be regarded
as a sage and a benefactor, but his necessary complement in the
evolution of a great idea, the man who works out in practice the
theories of the abstract thinker, to be denounced as a criminal? It
was only when Jenner ventured to act on the theory which he had
founded upon his observations that he was denounced and vilified
in language which it is now almost impossible to conceive.

All history, however, has shown that public opinion advances whilst the law remains stationary; and martyrs must suffer until the law is brought into conformity with the public conscience:

A certain number of prosecutions under the law, a certain number of
victims to the ignorance or superstition of those who framed it,
a certain number of refusals to convict under a growing sense of
its unwisdom, injustice and barbarity, seem to be in all societies
the stages passed through by laws established for the purpose
of coercing the opinions of mankind before they become obsolete,
if judge-made, or, if statutes, are repealed as inconsistent with
advancing knowledge.

With regard to the pamphlet under consideration, the judge pointed out that it did not come before them as an obscene libel at common law. The question, therefore, whether the purpose advocated in the book (i.e., the limitation of families) was inconsistent with the morals of society, was not relevant. They had only to enquire if the details as to prudential checks, given in that pamphlet, were inconsistent with decency. It had been admitted in argument that the greater part of the work, dealing with the abstract necessity of limiting population, was not obscene. The only portion against which obscenity was alleged was the chapter in which the means by which conception could be prevented were stated, and in which the female sexual organs were described as far as necessary for the purpose.

The question was thus raised--What is obscenity? After quoting the definition of the word which had been adopted in a previous case, Mr. Justice Windeyer laid down the principle that "it is the circumstances under which language is published, or acts done, that determine whether language or conduct is obscene. No natural function of the body is obscene itself. In the physical constitution of man, including all his natural instincts, there is nothing unholy or unclean." But certain natural actions, if performed in public, would be a gross outrage upon decency. In like manner, language that might be permissible and necessary if used on certain occasions, would manifestly be an outrage upon decency if used when occasion did not warrant it:

The question therefore is, when language is objected to as obscene,
whether the occasion upon which it has been used warrants its
use in the manner resorted to. This view of the law, I find,
is taken by the most distinguished writer upon the criminal law
of modern days--that most acute thinker, Sir James Stephen. That
learned judge, in his Digest of the Criminal Law, p. 105 submits
the following as the true view of the law with reference to the
publication of matter that would be obscene if not justified by
the occasion:

"A person (he says) is justified in exhibiting disgusting objects,
or publishing obscene books, papers, writings, pictures, drawings,
or other representations, if their exhibition or publication is for
the public good, as being necessary or advantageous to religion
of morality, to the administration of justice, the pursuit of
science, literature or art, or other objects of general interest;
but the justification ceases if the publication is made in such
a manner, to such an extent, or under such circumstances, as to
exceed what the public good requires in regard to the particular
matter published."

Mr. Justice Windeyer said he accepted this view as the law, and the question for consideration was whether the chapter detailing prudential checks made the publication obscene. To determine this, it was necessary to consider the work as a whole, in order that it might be ascertained whether the language complained of was warranted by the occasion:

As it cannot be denied that the question propounded for discussion
is of enormous importance, and that it is right to advocate in
the abstract the expediency of checking the advancing tide of
population, it appears to me impossible to contend that language
which tells how this may be done is obscene if it goes no further
than is necessary for this purpose. Having carefully read the
third chapter of the pamphlet, it appears to me to be written in
all decent sobriety of language. I see nothing in its language
which an earnest-minded man or woman of pure life and morals might
not use to one of his or her own sex, if explaining to him or her
what was necessary in order to understand the methods suggested
by which married people could prevent the number of their children
increasing beyond their means of supporting them. There is nothing
which points to the conclusion that any language is used with
the intention of exciting feelings of wantonness and lust; and
it requires but slight acquaintance with the medical profession
to discover that the advice given in this chapter is frequently
given by them to women suffering from over-childbearing, and to
those to whom parturition is dangerous. The information afforded
in the third chapter of the pamphlet, if given by a medical man
to a patient suffering from over-maternity, or if whispered in
matrimonial confidence, or imparted in the privacy existing between
the author and the reader of her pamphlet, is not obscenity; though
the public proclamation of the same information on a placard in
George Street or Piccadilly, so that all who ran might read,
would be an obscenity of the grossest kind, so clearly do the
circumstances of a publication alter its character. If admitted,
as it is, that the information, physiological and otherwise, given
in Chapter III. can be found in medical works of an expensive kind,
it cannot affect the character of the information for obscenity
that it is given in a cheap form. Information cannot be pure,
chaste and legal in morocco at a guinea, but impure, obscene
and indictable in a paper pamphlet at sixpence. The information,
to be of value in a national point of view as a safeguard from
the miseries of over-population and overcrowding, must be given
wholesale to the masses likely to over-breed. The time is past when
knowledge can be kept as the exclusive privilege of any caste or
class. The fact that a book may excite prurient thoughts if used
for that purpose by the low-minded and the young, does not make
it obscene.

The objection which has been urged, that the means suggested for
the prevention of conception might be availed of by the unmarried
and immoral for the purpose of enabling them safely to indulge in
vice, is simply the application to this subject of the exploded
delusion that knowledge is a dangerous thing.... The time is
surely past when countenance can be given to the argument that
a knowledge of any truth, either in physics or in the domain of
thought, is to be stifled because its abuse might be dangerous to
society. The guardianship of the eunuch and the seclusion of the
harem were not necessary to build up the national character of
English women for chastity; and it is an insult to them to argue
that it is necessary to keep them in ignorance on sexual matters
to maintain it. Ignorance is no more the mother of chastity than
of true religion.

Mr. Justice Windeyer then examined the contention that the prudential limitation of families is "a violation of natural laws and a frustration of nature's ends":

The argument that nature intends every woman to conceive as
often as is possible would, if carried to its logical conclusion,
result in the Indian custom of marrying every female child upon
reaching puberty in order that no opportunity of conception should
be lost. In all other matters of breeding but the all-important one
of the breeding of the human race, the aim of man is to defeat the
effects of nature's laws of reproduction, and to limit the number
and kind of animals produced to the amount required for the use
of man. The forces of nature, blind and ruthless in their effect,
we control and defeat in their operation by all the means that
science places at our command. To protect churches and hospitals
from the operation of nature's laws, we put up conductors to arrest
the inexorable effects of lightning, which would remorselessly
destroy what piety and humanity would protect. The course of
nature is to kill a noble woman, a devoted wife and loving mother,
if her pelvis is too small to admit the delivery of a child with
an abnormally large head. The practice of civilised man, aided by
science, is in such a case of parturition to destroy the infant
and to save the mother. The interference with the course of nature
is direct, the practice in no way natural; but enlightened public
opinion in no way condemns it. But if the pelvis of a woman is so
unusually small that she never can be delivered of a child but at
the peril of her life, where is the immorality in the husband and
wife resorting to any preventive checks that may preserve a life
that is dear and perhaps valuable to the world? It is unreasoning
prejudice alone that starts the objection that such prevention
of all the physical agony involved in a painful and dangerous
delivery and possible loss of life is immoral and unnatural.

The case of the Queen versus Bradlaugh and Besant (referred to at length in the preceding chapter) had been cited as an authority in support of the contention that The Law of Population was an obscene book, inasmuch as the pamphlet which was the subject of that prosecution, and for the publication of which the defendants were convicted, advocated the adoption of preventive checks. Mr. Justice Windeyer, however, refused to accept that case as a binding precedent:

As I have already pointed out, the case cannot be regarded as
an authority upon that point, as there the question was whether
the pamphlet was an obscene libel. Whether the verdict of the
jury was right in that case is not a matter of law, but of
opinion. Reading the summing-up of Lord Chief Justice Cockburn
with some knowledge of judicial modes of putting criminal cases
to a jury, it appears to me that, though expressing no direct
opinion as to its character, the learned Chief Justice thought
that the book was not an obscene libel, and was cautiously guiding
the jury to that conclusion. By the opinion of a jury coming to
the consideration of so delicate a question of social science as
was submitted to them, probably without any previous acquaintance
with subjects of the kind, I decline to be in any way bound; and
I have no hesitation in saying that, had I been a member of the
jury, I should have acted upon the reasoning of Lord Chief Justice
Cockburn, and acquitted the defendants. Not only does the whole
tenor of his Lordship's summing-up appear to me argumentatively in
favor of the defendants, but, from certain passages, it appears
to me that the inference is clearly to be drawn that he neither
thought the physiological details of the book were obscene,
nor was of opinion that its teaching would promote immorality.

Mr. Justice Windeyer quoted several passages from the judgment of Sir Alexander Cockburn in support of his view that the Lord Chief Justice did not regard the preventive checks recommended as immoral. How, he asked, could any reasonable man condemn as immoral the wish of married people to bring no more children into the world than they can support, and the adoption of the necessary means to effect that wish?

Instead of poor, let a case of consumptive parents be taken, or
of parents one of whom has developed symptoms of insanity. Who
could suppose that any jury would regard any means adopted by
them to prevent the procreation of a number of children, diseased
and rickety, or certain to inherit a taint of insanity, would be
otherwise than natural and right, and the adoption of any means
that medical science could suggest to prevent it not only not
immoral but laudable in the highest degree? If it is not immoral to
do what the pamphlet advocates, it seems to me impossible to argue
that the mere advocacy itself is a penal offence. The question is,
Where does the immorality come in? Wrongs can only be regarded
as such in their relation to others, or as self-regarding. Is
there in the adoption of preventive intercourse any invasion of
the rights of others? Certainly none. The use of the preventive
checks can only be viewed as a possible wrong in the light of a
self-regarding one. How can it be argued with any show of sound
reason that the use of preventive checks (adopted, perhaps,
from the determination not to bring into the world children that
cannot be even fed) can be morally injurious to persons animated
by a sense of duty founded upon the noblest altruism? The world
would have little need of penal statutes if a consideration of
the rights of others actuated the conduct of all mankind. Active
altruism--the distinctive feature of Christian teaching, inculcated
in the precept, "Do unto others as you would men should do unto
you"--can never in its application injuriously react upon the
moral nature of those who seek to put it in force with regard
to any conduct which may affect the happiness of others. The
profound law of ethics, that in trying to do good to others we
unconsciously benefit ourselves, is no less true here than in all
other phases of human conduct. Every thought entertained, every
effort made for the good of others, must elevate the thinker and
the actor. Who will say that the low and vicious parents of East
London's gutter children, brought up amidst all the moral horrors
of over-crowding, half-starved, and stunted in growth, without
elementary notions of decency or morality--who will say that such
parents would not have been morally superior if they could have
seen the wrong they were doing in bringing such offspring into
the world, and had taken measures to prevent it? Who will say
that the future of society would not have an infinitely better
outlook if the breeding of such children were to be prevented by
the conjugal prudence of parents in resorting to the use of such
means as would prevent their procreation? It is idle to preach to
the masse, the necessity of deferred marriage and of a celibate
life during the heyday of passion. To attempt to stifle the cry of
human nature uttered in the voice of its most powerful instinct,
is indeed to fly in the face of nature. Like all attempts to
regulate conduct by ignoring the facts of human nature, it must
signally fail. Prostitution with all its horrors is the outcome
of enforced unnatural celibacy. To use and not abuse, to direct
and control in its operation any God-given faculty, is the true
aim of man, the true object of all morality.

In concluding this memorable judgment, Mr. Justice Windeyer declared that he would not seek to evade the responsibility of deciding the matter submitted to him by shielding himself behind the decisions of other judges whose unreasoned opinions were of no weight against unrefuted arguments:

So strong is the dread of the world's censure upon this topic,
that few have courage openly to express their views upon it; and
its nature is such that it is only among thinkers who discuss all
subjects, or amongst intimate acquaintances, that community of
thought upon this question is discovered. But let anyone inquire
amongst those who have sufficient education and ability to think
for themselves, and who do not idly float, slaves to the current of
conventional opinion, and he will discover that numbers of men and
women of purest lives, of noblest aspirations, pious, cultivated,
and refined, see no moral wrong in teaching the ignorant that it
is wrong to bring into the world children to whom they cannot do
justice, and who think it folly to stop short in telling them
simply and plainly how to prevent it. A more robust view of
morals teaches that it is puerile to ignore human passions and
human physiology. A clearer perception of truth and the safety of
trusting to it, teaches that in law as in religion it is useless
trying to limit the knowledge of mankind by any inquisitorial
attempts to place upon a judicial index expurgatorius works written
with an earnest purpose, and commending themselves to thinkers of
well-balanced minds. I will be no party to any such attempt. I do
not believe that it was ever meant that the Obscene Publication Act
should apply to cases of this kind, but only to the publication
of such matter as all good men would regard as lewd and filthy,
to lewd and bawdy novels, pictures and exhibitions evidently
published and given for lucre's sake. It could never have been
intended to stifle the expression of thought by the earnest-minded
on a subject of transcendent national importance like the present;
and I will not strain it for that purpose. As pointed out by Lord
Chief Justice Cockburn in the case of the Queen versus Bradlaugh
and Besant, all prosecutions of this kind should be regarded as
mischievous, even by those who disapprove of the opinions sought
to be stifled, inasmuch as they only tend more widely to diffuse
the teaching objected to. To those on the other hand who desire
its promulgation, it must be matter of congratulation that this,
like all attempted persecutions of thinkers, will defeats its
own object, and that truth, like a torch, "the more it's shook
it shines."

As it seems to me that this book is neither obscene in its
language, nor by its teaching incites people to obscenity, I am
of opinion that the prohibition should go.

Mr. Justice Stephen concurred in the judgment given, and the conviction of Mr. W. W. Collins was therefore set aside.

We may fittingly conclude this chapter by reproducing from The Malthusian a note in which the writer briefly describes the character of Mr. Justice Windeyer:

"In early life I met Mr. Windeyer at his house at Tomago, on the Hunter River. His father, then dead, had been quite a notable man in the colony, as an able, intrepid, popular and high-minded politician; and young Windeyer seemed to be his father's son--frank, open, unaffected, and with a fine gentlemanly bearing. Since then, his career has quite fulfilled its early promise; and, for you, as a warm advocate of New-Malthusianism, the strength of support and encouragement lies, I think, very much in the fact that Justice Windeyer is not only a man of great legal ability but of high moral character."