Fruits of Philosophy

Stopes v. Sutherland—known also as the “Birth Control Libel Trial”—opened in the High Court, London on 21 February 1923. The words that led Stopes to sue were published in Birth Control by Dr Halliday Sutherland and were as follows:

Exposing the Poor to Experiment

Secondly, the ordinary decent instincts of the poor are against these practices, and indeed they have used them less than any other class. But owing to their poverty, lack of learning and helplessness, the poor are the natural victims of those who seek to make experiments on their fellows. In the midst of a London slum a woman, who is a doctor of German philosophy (Munich), has opened a Birth Control Clinic, where working women are instructed in a method of contraception described by Professor Mcllroy as “the most harmful method of which I have had experience.” When we remember that millions are being spent by the Ministry of Health and by Local Authorities on pure milk for necessitous and nursing mothers, on maternity clinics to guard the health of mothers before and after childbirth, for the provision of skilled midwives, and on Infant Welfare Centres—all for the single purpose of bringing healthy children into our midst, it is truly amazing that this monstrous campaign of birth control should be tolerated by the Home Secretary. Charles Bradlaugh was condemned to jail for a less serious crime.

(Note that parts struck out were included in the book but were excluded from the plaintiff’s statement of claim).

“Charles Bradlaugh was condemned to jail for a less serious crime.”

So who was Charles Bradlaugh? What was his crime?

The story of Bradlaugh’s trial was told by Dr. Sutherland in Laws of Life (Sheed & Ward, New York, 1936):

Early in the nineteenth century there was published in Boston, Mass., a small book entitled Fruits of Philosophy: An Essay on the Population Question, by Charles Knowlton, M.D., a well-qualified physician. This book is a popular treatise in favour of artificial birth control, and describes the physiology of generation, and certain methods of contraception. Although unnecessary details are given, the tone of the book is cold in comparison with the erotic productions of our own time. In America it circulated amongst Free Thinkers, and was first published in London about 1833. From that time the book was freely sold at Free Thought depots, until on December 23rd, 1876, a Bristol bookseller named Cook, who had interleaved the pages with indecent plates, was convicted. On January 10th, 1877, the London publisher was charged at the Guildhall with publishing an indecent book. He pleaded guilty, and the book was seized by the police. Charles Bradlaugh and Annie Besant, “honestly believing that on all questions affecting the happiness of the people” the “fullest right of free discussion ought to be maintained at all hazards,” reprinted Fruits of Philosophy, and on March 23rd, 1877, intimated to the magistrates and to the police that it was once more on sale. Arrested on April 5th, they were charged at the Guildhall on April 16th, and remanded on bail. Further police court proceedings were taken on April 18th, and on April 20th, when the late Dr. G. R. Drysdale, founder of the Malthusian League, gave evidence for the defence. Defendants then obtained an order transferring the proceedings into the High Court. So great was the public interest that 20,000 people are said to have assembled outside the Guildhall. The trial [1] before Lord Justice Cockburn and a Special Jury commenced on June 18th, 1877, and lasted five days. The Solicitor-General, Sir Harding Giffard, Mr. Douglas Straight, and Mr. Mead appeared for the prosecution.

Charles Bradlaugh and Annie Besant appeared in person, and were indicted for having published an obscene libel, this being the form of indictment adopted by the English Criminal Courts for pre­venting the dissemination of any matter which is calculated to destroy or corrupt the morals of the people. The defendants argued that the book itself was not obscene, and that the practices therein advocated were in the best interest of humanity. So wide was the scope of their defence that it included every single argument that has ever been advanced, even up to our own time, in favour of artificial birth control. Their defence was also remarkable by reason of the forensic ability of Bradlaugh and the eloquence of Mrs. Besant. Her opening speech included the following passage :—

“I find my clients among the little children. Gentlemen, do you know the fate of so many of these children? The little ones half-starved because there is food enough for two but not enough for twelve; half-clothed because the mother, no matter what her skill and care, cannot clothe them with the money brought home by the bread-winner of the family; brought up in ignorance, and ignorance means pauperism and crime. Gentlemen, your happier circumstances have raised you above this suffering, but on you also this question presses; for those over-large families mean also increased poor rates, which are growing heavier year by year. These poor are my clients, and if I weary you by length of speech, as I fear I may, I do so because I think of them even more than I think of your time and trouble. You must remember that those for whom I speak are watching throughout England, Scotland and Ireland for the verdict you will give. Do you wonder I call them my clients, these poor, for whom I plead? They cannot bring the fee of gold such as is received by the learned gentlemen who are briefed against me here; but they bring what is better than gold; they send up a few pence week by week out of their scanty wage for as long as the trial lasts; they send up kindly thoughts and words of cheer and of encouragement; mothers who beg me to persist in the course on which I have entered, and at any hazard to myself, at any cost and any risk, they plead to me to save their daughters from the misery they have themselves passed through during the course of their married lives.”

The case for the prosecution was twofold: First, that the book was obscene in itself; and secondly, that it tended to corrupt public morals because not only the married, but also the unmarried, and any boy or girl, could buy it for sixpence, and thereby learn how they might give way to passion without fear of results.

Lord Chief Justice Cockburn, in summing up, drew the jury’s attention to two aspects of the criminal law. “In the first place, are there in this publication details inconsistent with decency, details calculated to enkindle the passions and desires of lust, and excite libidinous thoughts in the minds of the readers? Even if that should not be the case, the second point is whether the purpose advocated in the work, and the purpose and effect of the details, so elaborately given, is a purpose inconsistent with the morals of society. If so, the work is an illegal work, and the offence with which the defendants were charged, is made out.”

On June 22nd, 1877, the jury brought in the following verdict :—

The Clerk : “Do you find the defendants guilty or not guilty of this charge?”

The Foreman : “We are unanimously of opinion that the book in question is calculated to deprave public morals, but at the same time we entirely exonerate the defendants from any corrupt motives in publishing it.”

The Lord Chief Justice : “I am afraid, gentlemen, I must direct you, on that finding, to return a verdict of guilty under the indictment against the defendants.”

Thereafter His Lordship postponed sentence until June 28th.

On June 28th, before the Lord Chief Justice and Mr. Justice Mellor, the defendants moved first to quash the indictment on the ground that the whole libel should have been set out thereon; and secondly, to arrest judgment on the same ground. These applications were refused. The defendants then asked for a new trial by reason of a contradiction in the finding of the jury. In refusing that application, the Court held that in a criminal trial the verdict must be either guilty or not guilty, and that the jury, by finding the book was calculated to deprave public morals, had returned a verdict of guilty, although the want of evil intention might be considered in the punishment. The Solicitor-General then produced two affidavits showing that the defendants, on the night of June 24th, had addressed a public meeting where Fruits of Philosophy was sold by the hundred to young women and lads. The Lord Chief Justice said that if the defendants had openly admitted their error and undertaken to do everything in their power to prevent the further circulation of a book which the jury found was calculated to deprave public morals, he would have been prepared to discharge them on their own recognizances to be of good behaviour in the future. But the case had now assumed the form of a most grave and aggravated offence. The sentence was that each of the defendants be imprisoned for six months, fined £200, and enter into recognizances in a sum of £500 each to be of good behaviour for the term of two years. The defendants then applied to stay execution of the sentence, and gave a pledge to stop the circulation of the book pending the result of an appeal. Leave to appeal was then granted, the defendants being discharged on their own recognizances  for £100. In the Court of Appeal the sentence was quashed on the ground of serious omission in the indictment. It is right to add that Mrs. Besant, on becoming a Theosophist, renounced her approval of contraceptives.

[1]  Trial of C. Bradlaugh and A. Besant. Published  by A. & H. Bradlaugh Bonner, 1 Took’s Court, London, E.C.

From Control of Life by Dr Halliday Sutherland, Sheed & Ward, New York, 1936.

Photograph: http://stock.tookapic.com