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4-155 (Text)

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addressee author,male,Windeyer, William Charles,54
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Clark, 1975
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 a question which involves not only the consideration of a topic difficult of discussion coram populo, but the very right of the public discussion of a subject of great importance to civilised society. The difficulty of dealing with the matter is not lessened. by the fact that the question involved comes for consideration surrounded by all the prejudices with which centuries of ignorance and thoughtlessness have invested it, accompanied by fear of the world's censure on points about which all who reverence purity and the ideal life of goodness would least wish to be misunderstood: Apart from the obligation which is cast upon a Judge to declare the truth as he sees it, only the love of truth and an earnest desire to benefit mankind could compel anyone in the present slate of the world's education to pronounce an opinion upon a subject, with reference to which it is so much more easy to win a reputation for sanctity by declamatory violence against new ideas as to the essential in morality than by a life of virtue and of that service of man which is the true service of God. 
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 children to be begotten by them by such means as medical science says are possible a 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 increasing 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, overcrowding, 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. Public opinion has so far advanced in the consideration of a question that has become of burning importance in the mother country by reason of its notoriously increasing over-population that invectives are no longer hurled against those who, like John Stuart Mill and others, discuss its time abstract the necessity of limiting the growths of population; but they are reserved for those who attempt practically to follow up their teaching and shew how such abstract reasoning should be acted upon. It seems to be conceded by public opinion, and has indeed been admitted in argument before us, that the abstract discussion of the necessity of limiting the number of children brought into the world is a subject fitting for the philosopher and student of sociology. The thinkers of the world have so far succeeded in educating it upon the subject, and public attention is so thoroughly aroused to its importance, that every reader of our English periodical literature knows it to be constantly discussed in magazines and reviews. 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.  Those, however, who take a practical view of life will inevitably ask whether the masses, for whose benefit this exhortation is given, can be expected to exercise all the powers of self-denial which compliance with it would involve. To what period of life is marriage to be postponed by the sweater in the East End of London, earning his three or four shillings a day, without any hope of ever being able to educate, decently house, and bring up eight or ten children? The Protestant world rejects the idea of a celibate clergy as incompatible with purity and the safety of female virtue, though the ecclesiastic is strengthened by all the moral helps of a calling devoted to the noblest of objects, and by every inducement to a holy life. With strange inconsistency the same disbelievers in the power of male human nature to resist the most powerful of instincts expect men and women, animated by no such exalted motives, 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 - expect these victims of a social state, for which the educated are responsible if they do not use their superior wisdom and knowledge for its dress, to exercise all the self-control of which the celibate ecclesiastic is supposed to be incapable. If it is right to declaim against overpopulation as a danger to society, as involving conditions of life not only destructive of morals but conducive to crime and national degeneration, the question immediately arises can it be wrong to discuss the possibility of limiting births by methods which do not involve in their application the existence of an impossible state of society in the world as it is, and which do not ignore the natural sexual instincts of mankind.
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.
In the domain of morality as of medicine. The teachers who first publicly proclaimed the brotherhood of man, his equality in the next world, and his right to worship as he chose, were persecuted as the enemies of society. Doctrines such as these, fit though they might be for discussion by philosophers and a select class of esoteric students, were to be put down as dangerous to society when taught to the common people as the fundamental basis upon which, society must rest.  The history is the same in the growth of all opinion and the perception of all truth, whether we read it in the history of the law of witchcraft, or blasphemy, or any other subject which has been the object of human thought associated with the idea of right and wrong. The current and preconceived opinion which is brought to the consideration of any such question has at first sternly resisted, next only tolerated, and only at last recognised as a right the free discussion of its foundation in truth. The world, having first tortured those who would show a better way, has in alter generations venerated as martyrs and heroes those who died for the truth as they saw it, or who endured in silence the lifelong persecution of the confessor.
With this growth of public opinion the law has also grown. A prosecution, as Lord Coleridge says in his able charge in the case of Reg. v. Ramsay and Foote (8), which was possible for seditious libel, because a man decorously discussed the respective advantages of an hereditary or elective monarchy without any reflection upon any part of the existing government, and which was carried to a conviction, would be impossible under our present ideas of political freedom. In the region of religious discussion it is the same. In an empire, the sovereign of which rules over more non-Christians than Christians, it has become an obsolete fiction that Christianity is part of the Common Law. Writings which a century ago would have been held by the Judges of the time as blasphemous libels, simply because they question the truth of Christianity, will, as Lord Coleridge points out in the same judgment, no longer be so regarded, because the dicta of the Judges promulgating that legal doctrine of bygone times cannot be taken to be a true statement of the law as the law is now. As in religion so in morals. The state of modern society, with all its complex aspects, has provoked the public discussion of questions relating to marriage and divorce, contagious diseases, over-population, and overcrowding, which would have shocked the old-fashioned notions of preceding generations, with their limited range of thought upon such matters. Upon some of these subjects the necessities of the day have already driven us to legislation which in past time would have been denounced as immoral by all, as it still is by a minority, and the question discussed in this pamphlet is one of a kindred character. Whilst the law has thus altered with the times in allowing a greater latitude in discussing questions fundamentally affecting religion, the government of the country, and public morality, it has remained the same in insisting upon a respectful, grave, and decent tone of discussion. Whether this has originated in a desire to protect the innovating thinker from such violence as might be offered by the ignorant multitude to those regarded as publicly insulting the great Ephesian Diana of the day, by restraining him from the use of language likely to provoke anger, or whether it has proceeded from the exploded fallacy that truth requires the prop of penal statutes to maintain it, the law clearly is that, Whether the subject of discussion be religion, government, or morals, whilst every latitude is allowed in discussing their fundamental principles, no language must be used which is stronger than is necessary for clearly expounding the doctrine or system advocated by the writer.  The publication of language which is calculated to destroy respect for religious or moral obligations, to incite people to violent and unconstitutional attacks upon the established government to destroy public morality by the advocacy of immoral practices, is illegal, and if its necessary results if acted upon are such, it is no excuse that the person publishing it thinks lie is doing a public good. The law clearly is, that though he should be actuated by the noblest aspirations for the public good, he must either achieve his reform in a legal manner or be content, if his revolutionary course of action is unsuccessful, to suffer in the cause of truth and right, hereafter, like John Brown, to be chanted as a martyr in national lyrics when public opinion has changed. 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. Were the publication now under consideration prosecuted as an obscene libel, all the above questions would be very proper for consideration. The publication, however, does not come before us an obscene libel at Common Law. The test in this case is not whether the tendency of the books to promote immorality, but whether the language itself of the book is 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. That nature has formed us with organs and propensities which, if abused, lead to the ruin of health and the destruction of morals, is no imputation upon the wisdom of Cod in so constituting man. The same argument might be urged with equal force against the teaching of writing and the art of photography because they assist people to commit forgery. 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.
A further argument urged before us as showing that the work was obscene was that its advice as to the adoption of scientific checks to population involved 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.
With all respect for the judges who decided these cases, I do not think that they are decisions which will stand the criticism of time as they are founded upon a want of confidence in the power of truth and in the right to publish it. there lies at the bottom of them the old delusion, that it is not always safe in teaching mankind to let them know the truth. This is the mainspring theory of all prosecutions of innovating thinkers from the time of Socrates to the present day. Allow the young to question the foundations of a popular system, invite them to belief in time one, great, unseen intelligence governing the world, surround his teaching with all the high morality of natural religion, and the teacher under this theory is but a "corrupter of youth", thought worthy of death in a past age, of fine and imprisonment in this. It was not by such hushing up of the abominations of paganism that the gods of Olympus were overthrown, and a purer undefiled religion was given to the world. It is only the public reading of the apostolic writings through many generations that has taught mixed congregations of men and women to listen without blushing to their denunciations of the abominable and now nameless vices of antiquity. It is true that attacking the foundations of any system of morals may cause sonic to fall away from the belief in all morality, and from the practice of any, but that is no reason why the pursuit of truth should be given up or condemned as an offence. The ultimate probable effect of the publication of what is true cannot be prejudicial to general morality and decency, if the publication is bona fide made in the interests of truth, and in pursuing a legitimate subject of controversy, and it is, I submit, by the ultimate result of the publication that its legality should be tested.
 let anyone enquire 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 expurgatorins 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 th9ught 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 Cockburn in the case of the Queen v. Bradlaugh and Besant (16), 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 a matter of congratulation that this, like all attempted persecutions of thinkers, will defeat 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.