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: