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.”