Charles Bradlaugh: a Record of His Life and Work, Volume 2 (of 2)

This judgment, of course, would have affected the suit for maintenance, had that been brought later. Giving judgment on 23rd April, Lord Coleridge remarked that as the House of Lords had decided that Clarke had no right to sue, it "seemed to follow" that Newdegate had no right to do so either. But he went on to decide in the appellant's favour on the merits of the case, giving a long and interesting judgment. Unless maintenance were to be struck out of the law-books, said the Lord Chief Justice, Newdegate's procedure must be called maintenance; and if maintenance were to be struck out of the books, he added, "it must be done by some higher authority, and I have not the power to do it, nor, if I had the power, have I the wish to abolish an action which may in some cases be the only remedy for a very cruel wrong." Delivering himself later on the moral or political merits of the case, he said: —

"It may be my ill fortune to have to support such an action in a case in which the defendant is a man whose character is entitled to every respect, and the plaintiff is a man with whose views, openly avowed, I have no sort of sympathy. But I will not call it my 'ill fortune,' for many of the most precious judgments given by the Courts in Westminster Hall were given in favour of men who, if English justice could ever be warped by personal feeling, would certainly have failed. It is indeed an ill fortune of the case that in the minds of many the cause of religion should seem to be connected with the success or failure of a particular person, whose defeat or success is really to the cause of religion a matter of supreme indifference, but as to whom (speaking only of what has been proved before me), a course has been taken and proceedings have been pressed which, in the case of any other, would be strongly and universally condemned, and by which certainly the cause of religion has not been advanced. But my duty is simply to decide the cause according to the best opinion I can form of the law – a duty which the rules of Christian teaching make quite clear."

As to costs, Lord Coleridge remarked that the decision of the House of Lords, though giving costs on the appeal, left Bradlaugh mulcted in a considerable sum of costs which were not recoverable from Clarke. For the recoverable costs he assumed Newdegate would now hold himself responsible; but further,

"for the residue of the costs and the expenses which Mr Bradlaugh has been put to as between attorney and client, and the various expenses he has had to bear – for all these Mr Newdegate is responsible in damages. I think that Mr Bradlaugh is entitled to an indemnity for every loss which Mr Newdegate's maintenance has caused him, and if this cannot be agreed on between the parties it must go to the official referee to ascertain the amount, and when he has reported to me I will give judgment for the amount he finds to be due, applying the principles I have thus laid down."

Newdegate's counsel gave notice of an appeal, but after six months' delay abandoned it. Thus by two concurrent successes Bradlaugh inflicted a crushing and final defeat on one of the men who had sought to ruin his political career out of hate for his opinions. He could not have, in addition to the solace of triumph, the "stern joy which warriors feel in foemen worthy of their steel;" but he had the satisfaction, such as it was, of knowing that his victory was a source of intense chagrin to thousands of bigots who had reckoned on, betted on, and generally predicted his defeat and bankruptcy.

And his victory on the points of civil law was effectually secured by his acquittal in the action for blasphemy. A new excitement had been added to that issue by the commencement, on 2nd February, of a new prosecution of Mr Foote (now owner as well as editor) and Mr Ramsey (now publisher only), with Ramsey's shopman, Henry Arthur Kemp, for the publication of a special "Christmas number" of the Freethinker, in which there occurred certain woodcuts, ridiculing the Hebrew Deity and the Jesus of the Gospels. In this case there could be no pretence of implicating Bradlaugh, as the incriminated number had not even been sold on the Freethought Publishing Company's premises. Whether Tyler saw the necessity of putting a better colour of religious zeal on his ill-conditioned action against Bradlaugh, or whether the recent strife had stirred up smouldering bigotry independently of personal animus against Bradlaugh, this prosecution was undertaken by "the City of London." The new trial, which took place at the Central Criminal Court on 1st March 1883, before Mr Justice North and a jury, is likely to be long remembered in respect of the extraordinary display of mediæval prejudice by the judge. He repeatedly and angrily interrupted Mr Foote in his defence, declining to allow him to quote current printed matter which would show at once how much "permitted blasphemy" went on among Salvationists, and how perfectly in keeping was his freethinking blasphemy with the popular religion which it attacked. The jury, after two hours' discussion, could not agree, and the judge discharged them, arranging for a fresh trial on the 6th with a fresh jury, and refusing in the harshest and most peremptory manner to let the prisoners out on bail, though in law they were perfectly entitled to it. Applications made next day to other judges fell through on the score, not of being wrong in law, but of "want of jurisdiction" on the part of the judges applied to. The second trial was even more disgraceful to the judge than the first. At the outset, Mr Foote objected to one of the jurors as having expressed animus, and the judge, in suggesting the juryman's withdrawal, declared that "he should be sorry to have a gentleman upon the jury who had expressed himself as prejudiced." His own summing-up to the jury, however, was again scandalously prejudiced; and when the jury promptly returned a verdict of guilty, he addressed Mr Foote as follows: —

"You have been found guilty by the jury of publishing these blasphemous libels. This trial has been to me a very painful one, as I regard it as extremely sad to find that a person to whom God has given such evident intelligence and ability should have chosen to prostitute his talents to the work of the devil in the way it has been done (sic) under your auspices."

The sentence was a year's imprisonment. The announcement called forth a display of indignation among the audience such as has perhaps never been seen in modern times; and the judge had to sit for some minutes in a storm of hisses and outcries, the epithets "Jeffries" and "Scroggs" expressing the prevailing sentiment. Mr Foote's words: "My lord, I thank you: it is worthy of your creed," were followed by a renewal of the tumult, and it was with difficulty that the Court was cleared. Then the judge sentenced Ramsey and Kemp to nine and three months' imprisonment respectively. The same judge, it is recorded, had let off with three months' imprisonment a ruffian who had killed a coffee-stall keeper with a kick on the face when he was refused a second cup of coffee till the first had been paid for.

The impression made among thoughtful people by the judge's action was one of general displeasure. Canon Shuttleworth pronounced the sentence "a calamity." Mr Foote's methods had been widely and strongly disapproved of among cultured Freethinkers, including Bradlaugh; and Mr John Morley, in the Pall Mall Gazette, had gone to the indefensible length of justifying the prosecution, on the very inadequate ground that the Freethinker had been "thrust on" the public, it having been exhibited in the publisher's window in a side street. But the infamous sentence at once turned feeling the other way, though protests like Canon Shuttleworth's were needed to teach Mr Morley and other Liberal journalists that renunciation of Liberal principles is not really necessary, even in cases of persecution, to propitiate the public. Bradlaugh, on his part, took the – for him – unprecedented course of addressing a public letter to the judge, reprobating his conduct. "My lord," he wrote,

"I pen this public letter with considerable regret and much pain. I have always in my public utterances tried to teach respect for the judicial bench. I have never, I hope, allowed hostile decisions against myself personally to tempt me to undue language when exercising my journalistic right to criticise judgments delivered. My own experience of the judges of our land has, with slight exception, been that they always listened with great patience, and when disagreeing, have expressed their disagreement in a dignified manner. When I read the report of the first trial of Messrs Foote, Ramsey, and Kemp, I was inexpressibly shocked. The character of some of the evidence you admitted alarmed me, and your refusal to reserve the objection taken to the admissibility of such evidence for the consideration of the Court of Crown Cases Reserved seemed to me so extraordinary that I even now hardly dare trust myself to characterise it… But the point that most afflicts me is the fashion in which you over and over again interrupted the defendant Foote in his defence… There are plenty of precedents showing that prisoners have been permitted in defence the indulgence so peremptorily denied by your lordship to Mr Foote… That you should have held the defendants in custody after the jury had disagreed, and when you had determined to again try them four days later, was mischievously and wantonly cruel. They had duly surrendered to their bail, which had been small in amount. There was no suggestion or supposition that they would try to avoid justice, nor did the prosecution ask for their detention. I am afraid, my lord, that you sent them to Newgate because they had been over-bold in their defence… If you had meant the three defendants to have no chance of escape, if you had been prosecutor instead of impartial judge, you could hardly have done more to embarrass their defence than by sending them to this sudden and unexpected close confinement."

The letter concluded:

"When you sat as judge in these blasphemy trials your lordship was practically omnipotent. There is yet no court of criminal appeal… The very knowledge of your uncontrollable authority in the conduct of the trial … should have prompted your lordship to hold the judicial balance with a steady hand, its inclining, if at all, being to the side of mercy. But your lordship, in the spirit of the old inquisitor, threw into the scale your own prejudices against the heresy for which the defendants were reputed, your own dislike of the manner in which they had made their heresies known… I ask your lordship what would be the outcry through the civilised world if, either in Switzerland or in Hindostan, those Salvation Army propagandists who thrust their blasphemies furiously in all men's faces were so hardly dealt with as you have dealt with George William Foote, William James Ramsey, and Henry Kemp?"

Presumably the scandal caused by Justice North tended to procure a fairer hearing for the original action, still unheard, in which Bradlaugh was indicted. It came on before the Lord Chief Justice and a jury on 10th April – Bradlaugh, as usual, defending himself, while Messrs Foote and Ramsey were represented by counsel. Bradlaugh was permitted by Lord Coleridge, in spite of the opposition of the prosecuting counsel (Giffard), to have the charge against him tried separately from that of his co-defendants, whose testimony might be important to him; and he was thus enabled to put his defence solely on the question of his responsibility, saying nothing as to the papers prosecuted being blasphemous or otherwise. His case was a clear and detailed proof, made good at every point, that he had ceased to be in any way concerned even in the selling of the Freethinker before the issue of any of the incriminated numbers, he and Mrs Besant having decided to drop the publication on account of a change early made in the character of the paper;171 and that this abandonment of the publication – which was the only sort of connection he had ever had with the paper at all – was made independently of any outside pressure or threat. For the rest, the malevolent tactics of Sir Henry Tyler were once more made the subject of a stinging invective; and the procedure of the prosecution in regard to the bank account came in for very severe handling. This was one of the most striking details in the trial. It came out, to the amazement of the legal part of the audience, that not only had Bradlaugh's banking account been ransacked and his cheques gone over to see if any had been dishonoured, but the junior counsel for Tyler, Mr Moloney, had actually attended the inquisition in person. Bradlaugh naturally did not spare him, declaring that he had "done work generally left to some private detective or inquiry agent, and never done by any one having the dignity of the bar to guard." And all the while, the search had been made in a bank branch in St John's Wood, N.W., in the county of Middlesex, on a warrant from the Lord Mayor, whose jurisdiction was limited to the City. On this head the Lord Chief Justice indicated a very strong feeling that the Lord Mayor's warrant for such a purpose ought not to be valid anywhere. "Vile in its inception and dishonourable in its conduct," was Bradlaugh's account of the prosecution generally, and he even had a suspicion, based on an awkward statement by one of the legal witnesses, that the examination of the bank account had been made some days before the summons against him was issued.

Sir Hardinge Giffard, now prosecuting for the Crown, fought the case as he might have done it for Tyler, declaring in his opening speech that he would call witnesses to prove certain things, and afterwards carefully omitting to call them, seeing that that course would help Bradlaugh to clear himself. In replying, he did not attempt to rebut the criticisms passed on his client and on his conduct of the case, professing to take the attitude of dignified disregard. His main line of argument was that one or two isolated woodcuts had been published in the Freethinker during the few months in which the Freethought Company published it, that Bradlaugh was an original promoter, and that the change made in the registration was only a stratagem, Bradlaugh remaining the real publisher. As regarded the blasphemy charged, Sir Hardinge did not take the customary line of distinguishing between vulgar and refined blasphemy, describing the contents of the Freethinker as deadly "poison to men's soul" – an expression which could not be supposed to apply to the mere element of vulgarity. He spoke with horror of a cartoon which exhibited Ignorance, Money, and Fear as "the true Trinity," and would doubtless have spoken similarly of the account of the Trinity as "three Lord Shaftesburys," given by Lord Coleridge's esteemed personal friend, Mr Matthew Arnold. The blasphemous matter on which the learned counsel expressed himself most strongly in detail, however, was a vulgar travesty of the extremely silly and artistically worthless religious picture known as "The Calling of Samuel." "You have that picture," he told the jury, "represented as a startled child, roused from his slumber by two cats on the tiles. And this is the sort of thing which is to be scattered broadcast over the land – !"

Lord Coleridge, on his part, summed up with great literary skill and dignity, carefully guarding against theological prejudice on the part of the jury by the avowal that he himself, despite his years and comparative detachment from the world, found it difficult to clear his mind of it. Incidentally he remarked that it was to Bradlaugh's credit that he did not disavow a general sympathy with the opinions of his co-defendants, while clearing himself of all complicity in the publications indicted. But on the point of the blasphemy charge he also incidentally expressed an opinion, which is worth citing as showing how little even an exceptionally considerate judge with strong religious feelings can get rid of the vulgar notion that irreverence to his – the popular – religious opinions is immeasurably more reprehensible than irreverence towards other less popular opinions, or vilification of unpopular men's characters. His objection to blasphemy prosecutions was mainly that they injured the cause of religion: —

"I say not how far the institution of a prosecution of this kind wounds the most sacred feelings and does injury to the holiest convictions. Some persons may think that this is not so; some may think that by such prosecutions the most sacred truths are pierced through the sides of those who are their enemies. With all that we have nothing to do. We may dislike, we may – I do not hesitate to say, we may loathe – the expressions made use of in these libels. We may think the persons who can speak in this way of things which they themselves may disapprove of and disbelieve, which they themselves may possibly think superstitious and mischievous, but which they must know have been the life and the soul of the virtue, the morality, the self-denial, the civilisation of hundreds, and thousands, and millions of people in all ages, are persons who forget – I will not say what is due to God, for they do not believe in Him, but to man, for they are men – what is due to themselves, and to the community of which they form a part, and for whom they ought to have some consideration. All that may be perfectly true, but it has nothing to do with the question."

Here the judge assumes that there is no dispute whatever as to the claim that the Christian religion is the essence of morality and modern civilisation, and proceeds to express disgust for a line of polemic which was zealously followed by the early Christians for centuries, which is invariably followed in the Old Testament when there is any question of alien religions, which is endorsed by Paul, which is commonly followed by Christian missionaries and by Protestant assailants of Catholicism, and which was even then being followed by the Christian multitude in the very case of Bradlaugh. The Christian position is that it is right to ridicule and asperse Freethinkers, materialists, and polytheists; and the Protestant position is that it is right to deride the Catholic worship of saints, images, and relics; but Christians in the mass hold it abominable for unbelievers and "heathen" in turn to deride their opinions, these being "holy" and "dear." And all the while, in the case under notice, the people who thus felt the most intense animal resentment towards a handful of men for speaking irreverently of a supposed Infinite, which by no possibility could human folly or contumely disturb or hurt, were as often as not zealous accomplices in casting the vilest personal insults against a representative Atheist who confessedly could not be shown to have attacked their opinions in such a way as to lay him open to a successful prosecution for blasphemy. The Christian plea is that unbelievers should not be free to cause Christians pain. Yet the whole of Bradlaugh's life was and is in evidence to show that the first instinct of the average Christian is to cause not merely endless mental pain but material ruin to every man who ventures, however decorously, to pronounce the Christian creed untrue. Perhaps the profoundest impeachment of the religious instinct in general is this very fact that the express conviction of the absolute supremacy of a personal power over all things human never by any chance enables the believer to regard with serenity and compassion the human denials which that power in the terms of the case is alleged to permit.

Some approach to the recognition of all this must have taken place in connection with the trial of Bradlaugh on the score of the Freethinker, although of course it was on the point of non-complicity that the jury gave their verdict of acquittal. They deliberated for an hour and ten minutes, calling for several of the documents in the case. The foreman's pronouncement of "Not Guilty" was received with loud cheers, which the judge indignantly rebuked, with the customary remark that "this is not a place of entertainment;" but a Conservative journal, endowed with the regulation horror of Atheism, commented that the cheer expressed a sentiment not at all confined to Atheists. In general, the press rejoiced with the acquitted man, who had now won in rapid succession three decisive successes in his long battle. It was noted, too, that he had won them against one leading counsel, Sir Hardinge Giffard. Asked later how it was that he had so often and so signally defeated this counsel, Bradlaugh remarked that he believed it was because Giffard despised him as an antagonist, and neglected precautions against him, while he, Bradlaugh, was careful at all times to do his utmost, and never to undervalue the enemy's strength. The moral is an old one.

In addition to the discredit put upon the prosecution in Court, it happened that Sir Henry Tyler about this time figured rather dubiously before the public in his capacity of company-promoter. His treatment of the financial affairs of the Anglo-American Brush Electric Light Corporation, in which he was deeply concerned, gave such dissatisfaction to most of the shareholders that they took the unusual course of presenting a memorial insisting on his resignation, after he had been hissed and hooted at a shareholders meeting.172 It may have been a sense of the unfitness of such a personage to represent the cause of religion that led to the foundation of a "Society for the Suppression of Blasphemous Literature," the secretary of which wrote to the newspapers173 as follows: —

"We propose to get up cases, as our funds will allow, against Professor Huxley, Dr Tyndall, Herbert Spencer, Swinburne, the author of 'Supernatural Religion,' the publishers of Mill's works, the publishers of Strauss's works, Leslie Stephen, John Morley, the editor of the Jewish World, Dr Martineau, and others, who by their writings have sown widespread unbelief, and in some cases rank Atheism, in cultivated families."

That goodly project, however, came to nothing, though in the view of Justice Stephen most if not all of the writers and publishers named were certainly open to conviction for blasphemy under the existing law. It would appear that the spiritual interests of "cultivated families" arouse less solicitude than do those of the poor, in matters religious as well as Malthusian. Above all, none of the writers threatened, save Mr John Morley, was likely to give the Tory party any chance of turning his heresy to political advantage, and Mr Morley was already safe in his seat, having taken the oath without demur and without opposition, after editorially criticising Mr Bradlaugh for his willingness to take it. Mr Morley had perhaps put himself right with the religious party by applauding the prosecution of Foote and Ramsey – he who had expressly justified the polemic of Voltaire.174 A clergyman of the Church of England, the Rev. Stewart Headlam, whose championship of the principle of religious equality has all along been above all praise, wrote to Mr Morley in his editorial capacity, protesting "as a Christian priest" against a policy which made it "almost impossible for Christians to meet Atheists on equal terms." "It seems," Mr Headlam began, "as though you were one of those who say, 'There is no God, but it's a family secret.'" The letter was suppressed. It is bare justice to cite it here175 as being perhaps the most telling protest made against the blasphemy prosecutions, albeit written by a sincerely orthodox clergyman.

The original case against Bradlaugh's co-defendants, Messrs Foote and Ramsey, who had been already sentenced to imprisonment on the second prosecution by Mr Justice North, came on before Lord Coleridge and a special jury on 24th April. The judge treated the prisoners with signal consideration and courtesy; and when the prosecuting counsel, Mr Moloney, persisted in putting a question to which Lord Coleridge had objected, his lordship indignantly asked, "Why cannot this case be conducted like any other case? It seems all of a piece with the learned counsel inspecting a man's bank-book." The accused defended themselves, Mr Foote making a particularly able speech, on which the judge, in his summing-up, repeatedly complimented him. That summing-up (delivered on the 25th) was in its way a masterly performance, marking the judge as the most admirably persuasive of pleaders. Deeply averse to all punishment of opinion, he showed the jury that the blasphemy law, as interpreted by past judges, was not nearly so outrageous as had been supposed; and the definition of "the late Mr Starkie," of which a scanty quotation had been given by the prosecution, he showed to be much less illiberal than it had been understood to be, though nothing could make it out to be a precise or practical formulation of law. As in the previous trial, he demolished the absurd plea that "Christianity is part of the law of the land," by the reductio ad absurdum that the marriage law and the monarchy are part of the law of the land, but are yet open to being argued against – at least in all modern opinion. As, however, no interpretation could do away with the hard facts of the blasphemy laws, and the accused had unfortunately put their heresy at times with extreme pictorial crudeness, his lordship could not definitely charge the jury that no blasphemy had been committed in law. He admitted that the objection against their practice on the score of violence would apply to some passages read by Mr Foote from prominent modern writers, which were new to him; but while the law stood as it was, that was no defence for Mr Foote, as the writers in question would be equally open to indictment. The jury, thus unavoidably left in doubt, disagreed. The prosecution, acting judiciously for the first time, took the course of entering a nolle prosequi, and the case dropped, but not without the Lord Chief Justice having to point out that the petition grossly misrepresented him as having pronounced the prosecution "unadvisable," which he had carefully abstained from doing. Unluckily, the dropping of this case did not affect the sentence passed by Justice North, and the then Home Secretary, Sir William Harcourt, declined to mitigate the punishment, on the score of the offensiveness of one of the incriminated woodcuts, which he called "an obscene libel," though the charge was one of blasphemy. Some Liberal journals indignantly protested; but the Liberal leaders felt they must show no consideration to blasphemy, though even the Spectator censured them for their timidity.