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.”