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

§ 18

On 11th July 1882 a new Tory battery was opened. The Freethinker, a penny weekly journal of a more popular character than the National Reformer, edited by Mr G. W. Foote and then owned by Mr W. J. Ramsey, was sold at the shop of the Freethought Publishing Company, 28 Stonecutter Street, of which Mr Bradlaugh and Mrs Besant, the partners of the Company, were the lessees. For a short time after its first issue it had been published by them, but soon they decided not to take that responsibility; and thenceforward it had been sold independently by Mr Ramsey, their manager, who, in the terms of his engagement with them, was free to do other trading on his own account. Sir Henry Tyler, supposing Bradlaugh to be the publisher all along, had bethought himself of prosecuting the Freethinker for blasphemy, and so striking a possibly decisive political blow at Bradlaugh – a course which he was enabled to take by a readily granted "fiat" from the Director of Public Prosecutions. It had been made clear by his references to the National Reformer in the House of Commons that he had hoped to convict Bradlaugh of blasphemy on something he had either written or published; but that hope he had had to abandon. There remained the hope of connecting Bradlaugh with the Freethinker; and Tyler's solicitors coolly wrote Bradlaugh on 8th July, asking whether he would personally sell the paper, so as to prevent the prosecution either of a subordinate of his, or of the editor and printer. He replied by sending the printed catalogue of all the things he published, and offering personally to sell any of these. As it did not include the Freethinker, the prosecution was begun against Messrs Foote and Ramsey and their printer, Mr Whittle, on 11th July, before the Lord Mayor (Sir John Whittaker Ellis), at the Mansion House; and after evidence had been led, the prosecutor's counsel applied to have Bradlaugh's name added as a defendant. The case was then adjourned, the Lord Mayor stating that he would hear the application against Bradlaugh in private – a proceeding for which the reasons will afterwards appear. It having appeared that the selling of the Free-thinker in the Freethought Publishing Company's shop tended to implicate the partners of that company, Mr Ramsey at once decided to suspend its sale for some weeks till he could arrange for its publication in a distinct office, thus partly safeguarding Bradlaugh from the attempt to identify him with it. The danger was serious; for if Bradlaugh were convicted of blasphemy under the statute, he would become legally incapable of further defending himself in Clarke's or any other suit for Parliamentary penalties. This was fully recognised on the Tory side, and the Whitehall Review, in an indecent article, pressed the point. Tyler's move was, in fact, a new attempt to cause the ruin aimed at by Newdegate, and hitherto warded off; and Newdegate's junior counsel (and private friend) duly attended the prosecution at the Mansion House. At the same time, Bradlaugh was defending a Freethinker prosecuted for blasphemy at the Maidstone Assizes, and after attending the adjourned hearing before the Lord Mayor on Monday, 17th July, he had to travel to Maidstone on the following day.

Before the Lord Mayor Bradlaugh led the prosecutor's counsel a grievous dance. He appealed to have the cases taken separately, and counsel was confused enough to say that this was "a most unusual and unheard-of application," which drew from Bradlaugh the comment, "There are several decided cases upon it, although it may be unheard of and unusual in your experience, Mr Moloney." Then ensued hours of fencing as to whether the case was or should be under common law or statute, and what the Lord Mayor ought to do. His lordship was at times somewhat rashly dogmatic on points of law and procedure, and had to be corrected. He finally decided to refuse to ask the prosecutor to choose whether he would proceed under common law or statute; and Bradlaugh then demanded that the case should begin de novo, putting every possible technical obstacle in the way of his cowardly enemies. Their evil way, he determined, should be made hard for them; and it was. As the proceedings went on, and the prosecution, who had previously succeeded in obtaining from the Lord Mayor a warrant to inspect Bradlaugh's banking account, took the dishonourable course of producing on subpœna the manager of the bank used by Bradlaugh, and his very passbook, his indignation mounted. What was intended was evidently a fishing investigation into his financial affairs, for the production of cheques at that stage was wholly irrelevant to the points proposed to be made out in evidence, and needing to be so proved. Fighting the case with all his force and acuteness, point by point, and with no mincing of matters, Bradlaugh commented on Tyler's tactics in language of which the libel law prevented the republication. Tyler's counsel protested that he "did not quite see what these observations were intended for." "They are intended," replied Bradlaugh, "to do the same mischief to your client that he is trying to do to me;" and counsel said no more on that head, though he tried unsuccessfully to retaliate on others.

The case was adjourned to the 21st; and though the passbook was left in the Lord Mayor's hands for inspection, the prosecuting counsel so mismanaged matters that he closed his case without having applied to see it. Bradlaugh's account, however, had been personally ransacked on Tyler's behalf, in gross abuse of the order of the Court. The Lord Mayor finally committed Bradlaugh for trial on the singularly scanty evidence offered as to his connection with the prosecuted paper, the incriminated numbers of which were all dated after the time when Bradlaugh ceased to be concerned in publishing it; and in committing Messrs Foote and Ramsey (the charge against the printer had been withdrawn), his lordship refused to allow Mr Foote to make a statement in his defence, though the law clearly gave the defendant that right. His lordship repeatedly gave the extraordinary ruling that "the charge" against Mr Foote was "that he was the editor of the Freethinker" – as if that could possibly be a "charge" – and on this pretext declined to hear anything on the actual charge, which was one of "blasphemous libel." He similarly tried to prevent Bradlaugh from reading a formal statement, but after disallowing it he gave way on consultation with the Clerk of Court. The statement was a terse and telling account of Tyler's tactics from the time of Bradlaugh's election.

In the press the prosecution was sharply condemned, even the Times censuring it; and one journal took occasion to point out that Tyler represented "one of the smallest and most corrupt constituencies in England."¹⁶⁸ Bradlaugh, being "committed" for blasphemy, at once put himself in the hands of his constituents, who unanimously voted their unabated confidence in him. He immediately (27th July) applied to a judge (Justice Stephen) in chambers for leave to issue a summons calling on Tyler to show cause why a writ of certiorari should not issue to remove the proceedings to the Queen's Bench division; and on the 29th the certiorari itself was directed to issue by the judge. Tyler's counsel at this stage insisted on Bradlaugh's giving two sureties for £300 in addition to his own recognisances of £300 ordered by the Lord Mayor. They also asked for an order to expedite the trial, but the judge curtly refused. Another typical detail was the charging of the grand jury on the point of "returning a true bill" on the indictment. The Recorder for the City, Sir Thomas Chambers, was one of Bradlaugh's bitterest enemies in Parliament, and he gave his direction to the grand jury to return a true bill, not only without putting it to them to decide whether they were satisfied with the evidence against Bradlaugh, but with expressions of gross prejudice, appealing to their feelings as "Christian men."

Not content with his prosecution of Bradlaugh, Tyler in the House of Commons (10th August) at length brought forward an express motion which he had had on the paper for twelve months, to the effect that the Hall of Science was not a proper place, and the teachers not proper persons, to teach science in connection with the Science and Art Department. The argument was that persons who had expressed themselves in print to the effect that science undermined religion should be held to have taught the same thing in their science classes. Mr Mundella in reply pointed out that no fewer than thirty-five clergymen of all denominations were science teachers under the department; and that the reports on the teaching given in the Hall of Science classes, even by a religious visitor who made surprise visits, were highly satisfactory. He concluded by sharply censuring Tyler, as Mr Labouchere had already done, for his malice; and, the Tory members having all left the House, the matter was ignominiously dropped. Even the editor of the St James's Gazette snubbed Tyler, while himself proceeding to repeat Tyler's contention in a gratuitously insulting statement as to the teaching of the Misses Bradlaugh. In the outside public one immediate effect of Tyler's malicious action was to set on foot a movement and an association for the repeal of the blasphemy laws, the lead being ably taken by the Rev. Mr Sharman (Unitarian) of Plymouth, who had already done admirable service in the constitutional struggle.

The blasphemy prosecution not being "expedited," went on slowly enough. Intermediate technical proceedings arose, partly out of irregularities on the part of the prosecution; and in one of Bradlaugh's visits to the Courts with his sureties, the driver of a four-wheeler who conveyed the party declined to accept any fare, declaring that it should be his contribution towards fighting Tyler. At length, on 6th November, Bradlaugh made an ex parte motion before Justices Field and Stephen, to have the indictment against him quashed, mainly on the score that he ought to have been definitely sued under the statute 9 and 10 William III., and that the provisions of that statute had not been observed in the indictment. The pleadings were extremely interesting as a matter of pure law, the judges debating the points courteously but closely all along, and both commenting finally on the "candour" and "propriety" with which he had argued his case. Their decision was for the most part hostile; and this was one of his very few cases in which there can be little difficulty in taking the judge's view against him. The main point decided was that the statute had not abrogated the common law in the case in hand. They gave him a rule nisi on only two counts in the indictment, on the ground of irregular procedure on the part of the prosecution; but Justice Stephen's judgment supplied a very useful conspectus of the history of the blasphemy laws, and incidentally declared that the statutory penalties could not be inflicted under a verdict on the indictment laid.

Very different must be the comments passed on the treatment of the friendly action, Gurney v. Bradlaugh, which came on afresh before Mr Justice Mathew and a common jury on 10th November. Everything had been done that could be done to meet the criticisms formerly passed by Justices Manisty and Watkin Williams; and indeed the whole pleadings had from the first been drawn from the journals of the House of Commons, which were put in evidence. But Justice Mathew summarily decided not to hear the case, and discharged the jury, on the old ground that the action was collusive. Now Bradlaugh, in swearing himself in, had in law done exactly what Alderman Salomons did in 1851; and the action of Miller v. Salomons was notoriously collusive, yet it was fully heard and carefully decided. We can only do now what Bradlaugh did then – leave the judge's action to the judgment of the instructed public. The Law Times of that time (November 1882) took the unusual step of declaring: —

"It is plain that it should be possible to try a friendly action to establish a constitutional right; and we regard the action of the judge as very questionable on constitutional grounds, and as being an arbitrary interference with a suitor's right to the verdict of a jury."

What a law journal thus describes, plain men may well call by a plainer name.

One of Bradlaugh's five contemporary lawsuits was thus quashed, but the remaining four kept his hands sufficiently full. The civil suit against Newdegate for maintenance came on before Justice Field on 2nd December, on a preliminary "demurrer," when, on the advice of the judge, both aides agreed to let the demurrer stand over till after the trial. A day or two afterwards Newdegate, speaking at the London Sheriffs' banquet, at which six judges were guests, had the indecency to comment before them on the maintenance case, and to denounce Bradlaugh. On the 5th the action against Mr Erskine, the Deputy Sergeant-at-Arms, came on before Justice Field. It was a long pleading on both sides; the case was adjourned till the 18th; and after the Attorney-General had spoken two hours and a half, and Bradlaugh had replied for an hour and a quarter, the judge reserved his decision. He finally gave it (15th January) against Bradlaugh, on the general ground that the House of Commons was the judge as to how it might exercise its privileges, of which the power to expel a member was one. On the point of legality he ruled that "it is not to be presumed that any Court, whether it be the High Court of Judicature or this Court, will do that which in itself is flagrantly wrong." The decision was one which might very reasonably have been appealed against. As the Legal Advertiser Supplement remarked at the time, Justice Field's ruling would cover a case in which the House of Commons might, say, confiscate the goods and chattels of a member expelled or suspended for obstruction. Bradlaugh, however, decided not to appeal. He had only commenced the action reluctantly because of the likelihood that the Gurney suit would be denied a hearing; and the judge had in this case at least listened to his arguments. He contented himself with a letter to the Times, pointing out the constitutional effect of the decision.

Thus far he had endured defeat after defeat in the law courts as in Parliament; and it may be that discouragement and debt counted for something in his surrender of the suit against the Deputy Sergeant-at-Arms. But he was now within a short distance of three signal successes which more than counterbalanced all his previous legal defeats. On 9th and 17th March his action against Newdegate for maintenance was argued for him before Lord Coleridge¹⁶⁹ by Mr Crump and Mr W. A. Hunter, he himself giving evidence on his own behalf. The broad ground of action was that Newdegate had maliciously "maintained" Clarke, having himself no interest in the ground of action, which was the penalty sued for, and being desirous only to make Bradlaugh bankrupt. There was no question of principle, as Bradlaugh was already unseated, and was held disentitled to sit either on oath or on affirmation. Bradlaugh incidentally gave testimony that already he had had to spend on the action two legacies, and in addition £1100 he had borrowed; while Clarke testified that the total costs on his side were estimated at about £2000.

Lord Coleridge reserved his decision; and before he gave it, the appeal by Bradlaugh against Clarke's action had been heard and decided in the House of Lords. It was argued on 5th and 6th March, before the Lord Chancellor (Selborne), and Lords Blackburn, Watson, and Fitzgerald – Bradlaugh, as usual, pleading his own cause. His main argument was, as before, that only the Crown could recover penalties against him when the statute did not specify that some or any one else could; and the discussion turned on this point, on which Lord Justice Bramwell, the senior judge in the Court of Appeal, had expressed some doubt. Bradlaugh, however, cited on the disputed point as to the Crown's prerogative two fresh cases – the King v. Hymen¹⁷⁰ and the King v. Clarke; and a good deal of argument turned on the point as to whether a common informer could ever have costs allowed him. As for the case of the respondent, Bradlaugh pointed out that Sir Hardinge Giffard's argument was now directed against the very reasons on which the intermediate court had based its judgment in his favour, thus asking their lordships to support the judgment of the Court of Appeal for new and contrary reasons.

On 9th April their lordships delivered judgment. The Lord Chancellor in an elaborate and lucid judgment showed that the penalty really was suable for by action of the Crown in any of the superior courts, and that, as no permission had been given by the statute to the common informer to sue, he was not entitled to do so. Lord Blackburn dissented, but not strongly, arguing very judicially that there were good and mutually neutralising arguments on both sides, and pronouncing himself only "on the whole" in favour of the view that the common informer could sue under the statute. Lords Watson and Fitzgerald, however, agreed with the Lord Chancellor. The eccentric Lord Denman, who was not a law lord, chose to take part in the proceedings (the first time a lay peer had done so, it is said, since the decision of the writ of error in Daniel O'Connoll's case), and declared himself in agreement with Lord Blackburn. Even if he were counted, however, the majority was for the appellant, who accordingly won the appeal with costs.

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.