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for the purpose of coercing the opinions of mankind before they become obsolete, if judge-made, or, if statutes, are repealed as inconsistent with advancing knowledge.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.