there were many reasons why i did not wish to be tried at the old bailey. first, it is an ordinary criminal court, with all the vulgar characteristics of such places: swarms of loud policemen, crowds of chattering witnesses, prison-warders bent on recognising old offenders, ushers who look soured by long familiarity with crime, clerks who gabble over indictments with the voice and manner of a town-crier, barristers in and out of work, some caressing a brief and some awaiting one; and a large sprinkling of idle persons, curious after a fresh sensation and eager to gratify a morbid appetite for the horrible. how could the greatest orator hope to overcome the difficulties presented by such surroundings? the most magnificent speech would be shorn of its splendor, the most powerful robbed of more than half its due effect. in the next place, i should have to appear in the dock, and address the jury from a position which seems to require an apology in itself. and, further, that jury would be a common one, consisting almost entirely of small tradesmen, the very worst class to try such an indictment.
for these and other reasons i resolved to obtain, if possible, a certiorari to remove our indictment to the court of queen's bench; and as the first indictment had been so removed, i did not anticipate any serious difficulty. on monday, february 19, after travelling by the night train from plymouth, where i had delivered three lectures the day before, i applied before justices manisty and matthew, who granted me a rule nisi. but on the saturday sir hardinge giffard moved that the rule should be taken out of its order in the crown paper, and argued on the following tuesday. seeing that the court was determined to assist him, i acquiesced in the motion rather than waste my time in futile obstruction. on tuesday, february 27, sir hardinge giffard duly appeared, supported by two junior counsel, mr. poland and mr. f. lewis. the judges, as on the previous saturday, were baron huddleston and mr. justice north. the former displayed the intensest bigotry and prejudice, and the latter all that flippant insolence which he subsequently displayed at my trial, and which appears to be an inseparable part of his character. when, for instance, i ventured to correct sir hardinge giffard on a mere matter of fact, as is quite customary in such cases; when i sought to point out that the indictment already removed included mr. ramsey and myself, and not mr. bradlaugh only; justice north stopped me with "not a word, sir, not a word."
sir hardinge giffard made a very short speech, knowing that such judges did not require much persuasion. he moved that the rule nisi should be discharged; put in a copy of the christmas number of the freethinker, which he described as a gross and intentional outrage on the religious feelings of the public; alleged, as was perfectly true, that it was still being sold; and urged that the case was one that should be sent for trial at once.
my reply was longer. after claiming the indulgence of the court for having to appear in person, owing to my purse being shorter than the london corporation's, i laid before their lordships my reasons for asking them to make the rule absolute. i argued that, as a press offence, our case was eminently one for a special jury; that the law of blasphemy, which had not been interpreted for a generation, was very indefinite, and a common jury might be easily misled; that as contradictory statements of the common law existed, it was highly advisable to have an authoritative judgment in a superior court; that grave questions as to the relations of the statute and the common law might also arise; that it was manifestly unfair, while a sweeping indictment for blasphemy was removed to a higher court, that i should be compelled to plead in a lower court on a similar charge; and that it was unjust to try our case at the old bailey when the city corporation was prosecuting us.
to none of these reasons, however, did their lordships vouchsafe a reply or extend a consideration. baron huddleston simply held the christmas number of the freethinker up in court, and declared that no sane man could deny that it was a blasphemous libel—a contumelious reproach on our blessed savior. but that was not the point at issue. whether the prosecuted publication was a blasphemous libel or not, was a question for the jury at the proper time and in the proper place. all baron huddleston was concerned with was whether a fairer trial might be obtained in a higher court than in a lower one, and before a special jury than before a common one. that question he never touched, and the one he did touch he was bound by legal and moral rules not to deal with at all.
justice north briefly concurred with his learned brother, and refrained from adding anything because he would probably have to try the case at the old bailey himself. what a pity he did not reflect on the injustice of publicly branding as blasphemous the very men he was going to try for blasphemy within forty-eight hours!
the next morning, february 29, mr. ramsey, mr. kemp and i duly appeared at the old bailey. before the regular business commenced, i asked his lordship (it was indeed justice north) to postpone our trial until the next sessions, on the ground that, as my application for a certiorari was only decided the day before, there had been no time to prepare an adequate defence. his lordship refused to grant us an hour for that absurd purpose. directly i sat down mr. poland arose, and begged that our trial might be deferred until the morrow, as his leader, sir hardinge giffard, was obliged to attend elsewhere. this request was granted with a gracious smile and a bland, "of course, mr. poland." what a spectacle! an english judge refusing a fellow-citizen a single hour for the defence of his liberty and perhaps his life, and granting a delay of twenty-four hours to enable a brother lawyer to earn his fee!
i spent the rest of that day in preparations for the morrow—writing out directions for mr. wheeler in case i should be sent to prison, arranging books and documents, and leaving messages with various friends; and i sat far into the night putting together finally the notes for my defence. i was quite cool and collected; i neglected nothing i had time for, and i was dead asleep five minutes after i laid my head on the pillow. only for a moment was i even perturbed. it was when i was giving mr. wheeler his last instructions. pointing to my book-shelves, i said: "now, joe, remember that if mrs. foote has any need, or if there should ever be a hitch with the paper, you are to sell my books—all of them if necessary." a great sob shook my friend from head to foot. the bitter truth seemed to strike him with startling force. imprisonment, and all it involved, was no longer a dim possibility: it was a grim reality that might have to be faced to-morrow. "tut, tut, joe!" i said, grasping his arm and laughing. but the laugh was half a failure, and there was a suspicious moisture in my eyes, which i turned my face away to conceal.
during the day i had a last interview with mr. bradlaugh and mrs. besant at 63 fleet street. mr. bradlaugh told me he could find no flaw in our indictment, and his air was that of a man who sees no hope, but is reluctant to say so. mrs. besant was full of quiet sympathy, proffering this and that kindness, and showing how much her heart was greater than her opportunity of assistance.
in the evening i attended the monthly council meeting of the national secular society. mr. ramsey was also present. we both expressed our belief that we should not meet our fellow-councillors again for some time, and solemnly wished them good-bye, with a hope that, if we were sent to prison, they would seize the opportunity, and initiate an agitation against the blasphemy laws. i then drove home, and finished the notes for my defence.
early the next morning i was at 28 stonecutter street. being apprehensive of a fine as well as imprisonment, i made hasty arrangements for removing the whole of the printing plant to some empty rooms in a private house. mr. a. hilditch was the friend on whom i relied in this emergency; and i am indebted to him for aid in many other difficulties arising from my prosecution. my foreman printer, mr. a. watkin, superintended the removal. by the evening not a particle of our plant remained at the office. mr. watkin stuck loyally to his duty during my long absence, and on my return i found how much the freethinker owed to his unassuming devotion.
one ordeal was left. i had to say good-bye to my wife. it was a dreadful moment. reticence is wisdom in such cases. i will not inflict sentiment on the reader, and i was never given to wearing my heart upon my sleeve. let it suffice that i fought down even the last weakness. when i stepped into the old bailey dock i was calm and collected. all my energies were strung for one task—the defence of my own liberty and of the rights of freethought.
that very morning the freethinker appeared with its usual illustration. it was the last number i edited for twelve months. my final article was entitled, "no surrender," and i venture to quote it in full, as exhibiting my attitude towards the prosecution within the shadow of the prison walls:—
"the city corporation is lavishly spending other people's money
in its attempt to put down the freethinker. sir thomas nelson
is keeping the pot boiling. he employs sir hardinge giffard
and a tail of juniors in court, and half the detectives of
london outside. these surreptitious gentleman, who ought to
be engaged in detecting crime, are busily occupied in purchasing
the freethinker, waylaying newsvendors' messengers, intimidating
shopkeepers, and serving notices on the defendants. what money,
unscrupulously obtained and unscrupulously expended, can do is
being done. but there is one thing it cannot do. it cannot
damp our courage or alienate the sympathy of our friends.
"there is evidently a widespread conspiracy against us. we
have to stand on trial at the old bailey in company with rogues,
thieves, burglars, murderers, and other products of christian
civilisation. the company is not very agreeable, but then jesus
himself was crucified between two thieves. no doubt the jews
thought him the worst of the three, just as pious christians
will think us worse than the vilest criminal at the old bailey;
but posterity has reversed the judgment on him, and it will as
certainly reverse the judgment on us.
"if a jury should give a verdict against us, which we trust
it will not, the prosecutors will probably strike again at
some other freethought publication. the appetite for persecution
grows by what it feeds on, and demands sacrifice after sacrifice
until it is checked by the aroused spirit of humanity. after
a sleep of twenty-five years the great beast has roused itself,
and it may do considerable damage before it is driven back into
its lair. we may witness a repetition of the scenes of fifty
and sixty years ago, when scores of brave men and women faced
fine and imprisonment for freethought, tired out the very malice
of their persecutors; and made the blasphemy laws a dead letter
for a whole generation. may our victory be as great as theirs,
even if our sufferings be less.
"but will they be less? who knows? they may even be greater.
christian charity has grown so cold-blooded in its vindictiveness
since the 'pioneer days' that blasphemers are treated like
beasts rather than men. there is a certain callous refinement
in the punishment awarded to heretics to-day. richard carlile,
and other heroes of the struggle for a free press, were mostly
treated as first-class misdemeanants; they saw their friends
when they liked, had whatever fare they could paid for, were
allowed the free use of books and writing materials, and could
even edit their papers from gaol. all that is changed now.
a 'blasphemer' who is sent to prison now gets a month of
cross's plank-bed, is obliged to subsist on the miserable
prison fare, is dressed in the prison garb, is compelled to
submit to every kind of physical indignity, is shut out from
all communication with his relatives or friends except for one
visit during the second three months, is denied the use of pen
and ink, and debarred from all reading except the blessed book.
england and russia are the only countries in europe that make
no distinction between press offenders and ordinary criminals.
the brutal treatment which was meted out to mr. truelove in
his seventieth year, when his grey hairs should have been his
protection, is what the outspoken sceptic must be prepared to
face. after eighteen centuries of christianity, and an interminable
procession of christian 'evidences,' such is the reply of
orthodoxy to the challenge of its critics.
"these things, however, cannot terrorise us. we are prepared
to stand by our principles at all hazard. our motto is
no surrender. what we might concede to criticism we will never
yield to menace. the freethinker, we repeat again, will go
on whatever be the result of the present trial. the flag will
not fall because one standard-bearer is stricken down; it will
be kept flying proudly and bravely as of old—shot-torn and
blood-stained perhaps, but flying, flying, flying!"
let me now pause to say a few words about our indictment. it was framed on the model of the one i have already described charging us with being wicked and profane persons, instigated by the devil to publish certain blasphemous libels in the christmas number of the freethinker, to the danger of the queen's crown and dignity and the public peace, and to the great displeasure of almighty god. the various "blasphemies" were set forth in full, and my readers shall know what they were.
mr. wheeler's comic "trial for blasphemy" was one of the pieces. matthew, mark, luke and john were accused of blasphemy in the court of common sense. they were charged with publishing all the absurdities in the four gospels, and in especial with stating that a certain young jew was god almighty himself. after the citation and examination of many witnesses, mr. smart, q.c., urged upon the jury that there was absolutely no evidence against the prisoners. it was perfectly clear that they were not the authors of the libels; their names had been used without their knowledge or sanction; and he confidently appealed to the jury for a verdict of not guilty. "after a brief consultation," concluded this clever skit, "the jury, who had carefully examined the documents, were of opinion that there was nothing to prove that the prisoners wrote the libels complained of. a verdict of acquittal was accordingly entered, and the prisoners were discharged."
now, every person acquainted with biblical criticism knows that mr. wheeler simply put the conclusions of nearly all reputable scholars in a bright, satirical way; and a century hence people will be astonished to learn that such a piece of defensible irony, every line of which might be justified by tons of learning, was included in an indictment for blasphemy, and considered heinous enough to merit severe punishment.
there were a few lines of verse picked out of long poems, and violently forced from their context; and also a few facetious "answers to correspondents," mangled in the same way. certainly any publication could be condemned on this plan. the bible itself might be proved an obscene book.
then came eighteen illustrations, entitled "a new life of christ." all the chief miracles of his career were satirised, but not a single human incident was made the subject of ridicule. now, if miracles are not objects of satire, i should like to know what are. if they never happened, why should they enjoy more respect and protection than other delusions? why should one man be allowed to deny miracles, and another man imprisoned for laughing at them? must we regard long-faced scepticism as permissible heresy, and broad-faced scepticism as punishable blasphemy? and if so, why not set up a similar distinction between long and broad faces in every other department of thought? why not let punch and fun be suppressed, political cartoons be anathema, and social satire a felony?
another illustration was called "a back view." it represented moses enjoying a panoramic view of jahveh's "back parts." judge north did his dirty worst to misrepresent this picture, and perhaps it was he who induced the home secretary to believe that our publication was "obscene." in reality the obscenity is in the bible. the writer of exodus contemplated sheer nudity, but the freethinker dressed jahveh in accordance with the more decent customs of the age of reason. i would cite on this point the judgment of mr. moncure d. conway, the famous minister of south place chapel. he expressed himself as follows in a discourse on blasphemous libel immediately after our imprisonment, since published in "lessons for the day":—
"the prosecutor described the libels as 'indecent,' an ambiguous
word which might convey to the public an impression that there
was something obscene about the pictures or language, which
is not the fact. the coarsest picture is a sidewise view of
a giant's form, in laborer's garb, the upper and lower part
veiled by a cloud. only when one knows that the figure is
meant for jahveh could any shock be felt. the worst sense
of the word 'indecent' was accentuated by the prosecutor's
saying that the libels were too bad for him to describe.
in this way they were withheld from the public intelligence
while exaggerated to its imagination. the fact under this is
that some bigots wished to punish some atheists, but could only
single them out beside eminent men equally guilty, and forestall
public sympathy by pretending they had committed a libel partly
obscene. this is not english."
frederick the great, being a king, was a privileged blasphemer. in some unquotable verses written after the battle of rossbach, where he routed the french and drove them off the field pell-mell, he sings, as carlyle says, "with a wild burst of spiritual enthusiasm, the charms of the rearward part of certain men; and what a royal ecstatic felicity there is in indisputable survey of the same." "he rises," adds carlyle, "to the heights of anti-biblical profanity, quoting moses on the hill of vision." to soubise and company the poet of potsdam sings—
"je vous ai vu comme moise
dans des ronces en certain lieu
eut l'honneur de voir dieu."
frederick's verse is halting enough, but it has "a certain heartiness and epic greatness of cynicism"; and so his biographer continues justifying this royal outburst of racy profanity with rabelaisian gusto. i dare not follow him; but i am anxious to know why carlyle's "frederick" circulates with impunity and even applause, while the freethinker is condemned and denounced. judge north may be ignorant of carlyle's masterpiece, but i can hardly presume the same ignorance in sir william harcourt. he probably sinned against a greater light. few worse outrages on public decency have been committed than his describing my publication as not only blasphemous, but obscene. and the circumstances in which this slander was perpetrated served to heighten its criminality.
