Charles Bradlaugh: a Record of His Life and Work, Volume 1 (of 2)

Later in the same year (1867) my father commenced a suit against a gentleman named De Rin. This case went through various Courts, and although the subject in dispute was really a private matter, the peculiar course taken by the defendant resulted in a public benefit, viz. the extension of the Evidence Amendment Act of 1869. The suit, begun in 1867, was not finally disposed of until 1870, but during these years the side issue of the competency of an Atheist to give evidence involved so much fighting that my father actually lost about fifteen hundred pounds before it was decided in his favour.

As endorser of three bills of exchange, Mr Bradlaugh brought an action against Mr De Rin as acceptor of the same. The bills were drawn in Brussels, and sent for acceptance to the defendant in England; he accepted, and afterwards endorsed them to a legal gentleman named Gallet, who in turn endorsed them in France to Mr Bradlaugh. The action was brought by the latter to enable him to realise the bills in this country, and was heard before Mr Justice Montague Smith and a common jury, in the Court of Common Pleas, in December 1867. Mr Lumley Smith was counsel for the plaintiff; Mr D. Keane, Q.C., and Mr Wood were for the defendant.

When Mr Bradlaugh entered the witness-box Mr Keane interposed, saying: "I have a most painful duty to perform, and that is to object to the witness being sworn on account of his being an Atheist and holding notoriously Atheistic opinions." Mr Keane repeated that he felt it an extremely painful duty, but that he had no discretion in the matter; he had instructions to take this objection, and therefore he must take it. He added: "At the same time I must say that I have met Mr Bradlaugh several times on business, and have never seen any conduct on his part unbecoming a gentleman."

Mr Justice Smith: "You have power, Mr Keane, to waive the objection. Sometimes it is material to make the objection considering the matters in issue. But in the present case is it so? I consider this a case in which the objection had better be waived."

As counsel against Mr Bradlaugh in the Devonport case, Mr Montague Smith, Q.C., had himself examined Mr Bradlaugh upon his opinions, but this he considered altogether a different matter; this was purely a commercial transaction.

Mr Bradlaugh stated that he was ready to affirm or to give evidence upon oath, and after a short discussion Mr Justice Smith said that he should take it upon himself to allow him to affirm; but Mr Keane again interposed, urging that he would not be competent to do so. Mr Bradlaugh then made his counsel formally tender him as a witness, but after some conversation Mr Keane agreed to admit the facts which Mr Bradlaugh was to prove. It was then contended that the endorsement was not valid according to the law of France, but ultimately the verdict was given for the plaintiff, with leave to the defendant to move the verdict for him on the objections he had raised.

Mr De Rin accordingly moved the Court of Common Pleas, and in July 1868 the Court granted a rule absolute to enter the verdict for the defendant, on the ground that the endorsement did not confer on the plaintiff the right of suing on the bills in this country. Mr Bradlaugh appealed against this decision to the Court of Exchequer, and the Court of Appeal suggested an inquiry as to the fact whether the endorsed bills came into Mr Bradlaugh's possession by post in England or whether they were handed to him in France, and Mr S. Prentice, Q.C., was nominated as a referee to ascertain the fact. When the case came on appeal before Mr Justice Lush in October 1868, in the Exchequer Chamber, bail had to be given for costs, and Mr Austin Holyoake was tendered as such bail, but Mr Wood, counsel for the defendant De Rin, objected to Mr Holyoake as not competent to take the oath. "I am known to be a Freethinker," wrote Austin Holyoake, with just indignation, "and it is therefore competent for any solicitor or barrister to openly insult me by calling in question my ability to speak the truth."

After a very long delay, in December 1869 the case came before Mr Prentice to ascertain, as I have said, whether the bills were delivered to Mr Bradlaugh in England or in France. Once more Mr Bradlaugh presented himself as a witness, to prove their delivery to him in England, and once more, despite the passing of the Evidence Amendment Act in the previous August, his evidence was objected to. Mr Bradlaugh appeared in person, and Mr Wood, who had been counsel for the defendant at the hearing before Mr Justice Lush, again appeared for him. On Mr Bradlaugh tendering himself as witness, Mr Wood – who, like his predecessor Mr Keane, said that, acting under special instructions, he took a course which gave him considerable pain – asked him: "Do you believe in God?"

Mr Bradlaugh's objection to answer this question was followed by a long discussion, at the end of which Mr Prentice held that he was bound to answer. Again Mr Wood put the question: "Do you believe in God?"

Mr Bradlaugh: "I do not; that is, I do not believe in any being independent of the universe, governing or ruling it."

Mr Prentice: "Do you believe in a future state of rewards and punishments?"

Mr Bradlaugh: "After death, certainly not."

"Then," said Mr Prentice, "I must refuse your evidence."

A day or so later my father, undaunted, carried his case before Mr Justice Brett at Judges' Chambers, and asked for an order to compel Mr Prentice to take his evidence; but Mr Justice Brett held, although with some doubt, that Mr Prentice was not authorised by the Act of Parliament to administer the alternative declaration.126 The Judge added that Mr Bradlaugh ought to have liberty to apply to the Court against the decision, and endorsed his judgment with the opinion that it was "a fit case to go before the full court."

A few days after this refusal of Mr Prentice to hear his evidence, and Mr Justice Brett's confirmation of this refusal, Mr Bradlaugh was called as a witness in the Central Criminal Court to prove the signature of Dr Shorthouse of the Sporting Times in an action for libel brought by Sir Joseph Hawley. On his objecting to take the oath he was readily permitted to give his evidence upon affirmation. Such was the confusion in which the law of evidence was left after the passing of the Evidence Amendment Act of 1869. A witness perfectly competent to give evidence in one Court was incompetent in another, or else it was a matter of doubt whether he was competent or not.

In January 1870 Mr Bradlaugh carried his case before Lord Chief Justice Bovill and Justices Keating, Brett, and Montague Smith, in the Court of Common Pleas; but after half-an-hour's argument the Judges refused to hear him on the ground that he was not moving on affidavit. "That is," said Mr Bradlaugh, "I was sent back to be sworn as to the refusal of my testimony before I could be allowed to argue that I was not liable to take the oath, and before I could be allowed to claim that I had, notwithstanding, the right to give evidence." A very pretty tangle of contradiction!

He then proceeded to satisfy all conventions by swearing (affidavits could not then be affirmed) that Mr Prentice did not consider him competent to give evidence on oath, nor himself competent to receive the evidence on affirmation. Mr Bradlaugh returned two days later to the Court of Common Pleas and asked that "Mr Prentice be directed to take the evidence of Mr Charles Bradlaugh on the fact to be stated in a special case." After a very long argument the Court decided that it had no power to give directions to an arbitrator.

Although no more advanced than when he first brought his action in the winter of 1867, Mr Bradlaugh did not even yet despair, but determined to carry his case to the highest possible legal tribunal. Pending the final decision of the law, petitions were got up all over the country and sent into Parliament, praying for a further amendment of the Act.

On the 7th of February the case was mentioned at the Sittings in Error; but although there were seven judges present, Lord Chief Baron Kelly refused to proceed with it in the absence of the Lord Chief Justice. He said that the case was one "of the greatest possible importance, not only in this country, but throughout all Europe; it was therefore of importance that the Court should be so constituted as to insure general satisfaction with its decision. The Lord Chief Justice Cockburn had been present when an argument on part of the case had been heard; it would be advisable, therefore, that the case should stand over until the Sittings in Error after the next term."

In consequence of this, it was not until the 16th of May that the long-drawn-out proceedings in this suit – involving at the outset a simple business transaction, but now including far wider issues – entered upon their final stage. For more than two years justice had been persistently perverted from its course, and used as the tool of fraud, but now at length matters wore a different aspect. The case was heard in the Court of Exchequer Chamber, before Lord Chief Justice Cockburn, Lord Chief Baron Kelly, Justices Blackburn, Mellor, and Lush, and Barons Channell and Cleasby. The Court was unanimous in its decision that the endorsee was entitled to sue, and that the verdict must be entered for Mr Bradlaugh. The Lord Chief Justice remarked that the defendant had no merits at all in the case; he had relied upon this "somewhat unrighteous" defence, and the judgment now given was "in accordance with the good sense and justice and equity in the case."

So, in the end, my father won his suit, but the victory was very costly. The judgment of the Court of Exchequer did not entitle him to recover any of the expenses he had incurred in fighting the oath question. Upon that point the decision of the Court of Common Pleas was final. In a public statement made at the end of the year at Bristol, in reply to some observations which had fallen from Professor Newman, Mr Bradlaugh remarked that in contesting the oath question in the law courts he had himself lost £1500. This was an allusion to his losses in the De Rin case, the costs in which alone reached to more than £1100; in addition to these enormous costs, he lost his debt of £360 because the Christian De Rin, who objected to the evidence of an Atheist, became bankrupt when the case was finally decided.

Before the passing of the Evidence Amendment Act in 1869 all persons who disbelieved in God or in a future state of rewards and punishments were held to be incompetent to give evidence in a Court of Law. Freethinkers had long and bitterly felt the injustice and hardship of their position; and in 1868 and 1869, after the first action in the case of Bradlaugh and De Rin, a most determined effort was made to move Parliament to amend the law of evidence. The National Secular Society sent in petitions to the House of Commons, and the Executive of that Society put itself in communication with members of both Houses. Mr Bradlaugh said in 1870 that they tried "to pass a much more distinct clause in favour of Freethinkers than the one as it now stands, which is in its legal effect entirely different from the clause as originally drawn by the Hon. Mr Denman, and printed in the Bill first read before the Commons. It is Lord Cairns to whom we were ultimately indebted for the main words which really serve us in the Act of 1869."

In 1870 another Bill, prepared by the Hon. G. Denman and Mr Locke King, was passed through Parliament to further amend the law of evidence, but it only met such difficulties as had arisen in the case of Bradlaugh and De Rin, and did not touch the law as it related to jurymen, affidavits, or Scotland. Mr Bradlaugh was continually urging members of the House to get these points amended, but nothing further was done until he himself carried his Oaths Act of 1888, by which the whole law relating to oaths was radically altered.

Until the passing of this Act, jurors without religious belief were liable to be committed to prison if they refused to be sworn, and the law did not permit them to affirm. Affidavits on interlocutory proceedings could only be made upon oath. In Scotland all Atheists and disbelievers in eternal torment were, in addition, incompetent as witnesses.

In any case, too much discretion was left to the Judge, who was supposed to satisfy himself, according to the monstrous formula laid down by the Act, that the oath would have "no binding effect" upon the conscience of a heretical witness. A promise is binding upon the conscience of an honest man in whatever form it may be made, and it put Freethinkers in an entirely false position to be obliged to assent to the statement that some particular form was not binding upon them. Conscientious witnesses who wished to affirm hardly knew what to answer when the Judge put the question to them, and he would not always be satisfied with the mere statement that the oath gave no additionally binding effect to the promise. And sometimes his assent to the formula would be used to the discredit of a witness. I myself once heard Baron Huddleston tell the jury that it was for them to consider what was the value of the evidence of a witness whom an oath would not bind.

Amongst the multitude of papers hostile to Mr Bradlaugh's candidature for Parliamentary honours in 1868 was one called the Razor. This journal went so far in its condemnatory strictures that Mr Bradlaugh felt – as his counsel, Mr Digby Seymour, put it – that he had no option but to bring an action against the proprietor. The Razor must have been in a general way a tolerably obscure publication, for when I went to look it up in the British Museum, no trace of it could be discovered, although the officials there took considerable pains to find it for me. But the article against Mr Bradlaugh had been recopied from its columns and widely circulated in Northampton, where it was calculated to produce serious mischief. Later on Northampton grew accustomed to hearing my father accused of every possible crime, and, knowing their absolute falsity, became hardened to such slanders; still, at that time the acquaintance was comparatively young between Northampton and the man whose statue it has this year placed in one of its most public thoroughfares.

The libel endeavoured to connect Mr Bradlaugh with Broadhead (of the Sheffield trade outrages), and with the misdeeds of which Mr Montagu Leverson had been guilty two years after my father quitted his office. It was published on August 15th, and was read by Mr Bradlaugh on the 19th. He at once telegraphed a demand for an apology, and on the same day received a letter from the proprietor saying that the editor, who was then absent, would be requested to offer a suitable apology. This the editor showed no inclination to do, and some correspondence ensued. Ultimately the Razor people agreed to publish a statement of facts if Mr Bradlaugh would draw it up and send it to them. This he did, but the statement did not appear, and, tired of these proceedings, in October he issued a writ against them. The case came on in December, at the nisi prius sittings at the Guildhall, before Mr Justice Blackburn and a common jury. Mr Bradlaugh did not conduct his own case, but Mr Digby Seymour, Q.C., and Mr Day appeared on his behalf, while the defendant Mr Brooks was represented by Mr O'Malley, Q.C., and Mr Griffiths.

No attempt was made to justify the libel, nor was any apology offered, although Mr Digby Seymour intimated the willingness of his client to accept it even at that late hour. Mr Bradlaugh was the only witness (the defence called no evidence whatever) other than those required for formal proofs; and, having no case, the counsel for the defence endeavoured to excite the prejudices of the jury by cross-examining him as to his theological opinions. The method pursued by Mr O'Malley was so gross that, lest I seem to do him an injustice, I will quote the exact words of the report of his cross-examination. After asking a number of questions about Broadhead and trades unions, Mr O'Malley asked:

"Do you believe in the existence of a God?"

C. Bradlaugh: I decline to answer that question, because, according to the present laws of this country I might by so doing render myself liable to prosecution.

Mr O'M.: Have you not said, "There is no God"?

C.B.: No; on the contrary, I have repeatedly said and written that an atheist does not say "There is no God."

Mr O'M.: Have you not made statements in public against the existence of God?

C.B.: I decline to answer that question.

Mr O'M.: Did you not once at a public lecture take out your watch and defy the Deity, if he had any existence, to strike you dead in a certain number of minutes?

C.B.: Never; such a suggestion is utterly unjustifiable.

Mr Justice Blackburn: If any issues in the action depended on this course of proceeding, Mr O'Malley, I should not object, but I cannot see that these questions have any relevance to the matter before us.

Mr O'M.: I think I shall be able to show by a few questions more the importance of the plaintiff's answers. Are you (to plaintiff) a writer in the National Reformer? And have you written under the name of "Iconoclast"?

C.B.: I decline to answer these questions, because prosecutions for penalties are at present pending against the National Reformer at the instance of the late Government.

Mr O'M.: Did you write this passage, which appeared in the National Reformer: "There is a great big monkey," etc. [fable already referred to on p. 233].

C.B., after some hesitation: I might refuse to answer this question on the same ground I have refused to answer the other questions. I prefer, however, to answer, and I say that passage did appear in a paper with which I was connected, but was not written by me. It was part of a translation of a German fable, and was copied nearly two years ago into the Saturday Review without the context. If the context were read with it, the meaning of the passage would be entirely different It related as much to Hinduism as to Christianity. I wrote a reply to the Saturday Review at the time.127

Mr O'M.: Did you ever take legal proceedings against the Saturday Review for publishing this article?

C.B.: No; I considered it a criticism on my opinions, and answered it by other articles in other papers. I should never sue a journal for an attack on my opinions.

Mr O'M.: Do you believe in the truth of the Christian religion?

C.B.: I decline to answer, because it is a prosecutable offence for a man to deny the truth of Christianity after he had been brought up in its tenets.

The defence, as I have said, called no witnesses; but Mr O'Malley was a host in himself, and as far as the jury were concerned, the "eloquence" of his address more than made up for the weakness of his case. He said that from Mr Bradlaugh's refusals to answer his questions, "it is fair to assume that he has no character to be injured by such a criticism as this," meaning by that that an Atheist had no character to be injured when his principles were likened to those of such a man as Broadhead, a "self-confessed assassin," and his morality to that of a man compelled to flee the country on a charge of fraud. Mr O'Malley went on to say that while it would have been better if the article had not appeared, "it was nonsense to talk of it as injury to the notorious character of such a man. The smallest amount of damages would be sufficient to set up the character of that 'noble' man. He asked the jury, as Christian men, to refrain from giving their endorsement to that man Bradlaugh, to that man Bradlaugh, to that man Bradlaugh."

In the course of his summing up, Mr Justice Blackburn said that "all in Court must have been disgusted with some of the questions which had been put in cross-examination." That all were not disgusted was soon apparent, for, after a short consultation, the jury, feeling bound to respond to this appeal to their Christianity, returned a verdict for the plaintiff indeed, but with one farthing damages.

My father was deeply hurt at the mockery of this verdict, and, overcome by a sense of helplessness in the face of such intolerance, he wrote these bitter words: —

"Outlaw Or Citizen? Which am I?

"When at Bolton I sued for damages occasioned by the breach of contract for the hire of the hall in which the lectures were to be delivered, I was non-suited by the County Court Judge on the ground that the lectures to be delivered were illegal (although there was, of course, no possible evidence of what I should have said). When I was illegally arrested at Devonport, confined in a damp cell for one night, and twice brought before the magistrates, an Exeter jury, although they in point of fact decided entirely in my favour, gave me one farthing damages; and Lord Chief Justice Erle, on appeal to the Court sitting in banco, laid down the doctrine that the imprisonment which prevented a man like myself from making known his views (although that imprisonment had been by the verdict of the jury utterly unjustifiable) was rather a benefit to the individual imprisoned than a wrong for which damages could be sought. When, at Wigan, the evidence of myself and a gentleman and his wife were all refused by the County Court Judge, on the ground of our being all well-known Secularists, I was legally robbed of nearly thirty pounds. When concerned about three years ago in another litigation, the statement of my opponent that I was 'Iconoclast, the Atheist,' sufficed to defeat me. When I sued as plaintiff last year in an action to which there was no defence [Bradlaugh v. De Rin] in the Court of Common Pleas, my evidence was objected to on account of my disbelief in the Scriptures. When on appeal on a point of law I tendered Mr Austin Holyoake as bail, he was refused because he was a well-known heretic, and could not therefore be allowed to be sworn. Now I am grossly libelled, the libel is not justified; the only cross-examination is on my opinions; and the counsel for the defendant, who actually admits that the libel ought never to have appeared, asked the jury to give me the smallest possible damages because I am an Atheist. The jury respond to his appeal to their religious prejudices, and I get one farthing damages. What am I to do? If when I am libelled I take no notice, the world believes the libel. If I sue I have to pay about one hundred pounds costs for the privilege, and gain the smallest coin the country knows as a recompense. Duelling is forbidden alike by my code of morals and the law of the country. If I horsewhip the libeller, I am punishable for assault. Am I outlaw or citizen – which? Answer me, you who boast your superiority; you whose religion makes you better than myself. What mockery to tell me that I live in a free country, when it is thus justice is dealt out to such as I am!

"Charles Bradlaugh."

In January (1869) Mr Bradlaugh prayed the Court to grant him a rule for a new trial, and Lord Chief Justice Cockburn observed that "no one could say that because a man was an Atheist (even assuming him to be one) anyone was entitled to say he was a murderer or a swindler. That, however, probably was not quite the way in which it was put to the jury; it was probably put rather in this way, that when a man had publicly put forth certain sentiments in certain language, it might be that his character was not such as deserved or required much vindication. As a general principle the damages in actions of tort, especially in actions for libel, were eminently for the jury." Mr Justice Mellor made some similar remarks, and Mr Justice Hannen having put some questions as to the refusal of the apology and the manner of the denial of the charge, the Lord Chief Justice granted the rule.

It never came to a new trial, however, for in the following November the defendant, Mr Brooks, withdrew the whole of the charges against Mr Bradlaugh and apologised for their publication, but his solicitor intimated that he was in no position to pay the costs. Therefore, although my father obtained the barren satisfaction of this tardy apology and the withdrawal of the charges, it cost him not less than £200. The Razor itself did not survive this litigation, for before the new year of 1869 had dawned it was already discontinued.

In accordance with the wishes of some Yorkshire friends, Mr Bradlaugh had promised to give two political lectures in Mirfield on the 18th and 19th November 1870. The Mirfield Town Hall was engaged for this purpose on the 21st of September, and the lectures announced were – "War: its Effect upon European Peoples, and an Appeal for Peace," and "England's Balance Sheet." The hall belonged to a Company, and when it was realised that their property was let to the wicked Atheist for the purpose of pleading the cause of peace in Europe, some of the directors objected, and objected so strongly, to the proposed desecration of their building that they determined to back out of the agreement under the pretence that the hall-keeper had no authority to let it, although, in fact, he had taken four guineas, money paid for the hire of the hall, and had given a receipt for it. Mr Bradlaugh persisted in his right to lecture, and on making inquiries learned that the hall-keeper had let the hall on former occasions without any objection on the part of the directors. In order to complicate matters the Directors let the hall for the dates assigned to Mr Bradlaugh to a party of Ethiopian serenaders.