"Your lordship, I think, will scarcely credit it, but Mrs. Besant says in a later affidavit that she took away the Testament from the child, because it contained coarse passages unfit for a child to read."
To his horror, Sir George Jessel considered there were "some passages which a child had better not read in the New Testament", and went on:
"It is not true to say there are no passages that are unfit for a child's reading, because I think there are a great many.
"Mr. BARDSWELL: I do not know of any passages that could fairly be called coarse.
"Sir G. JESSEL: I cannot quite assent to that."
With the exception of this little outburst of religious feeling against the book written by apostate Jews, Jewish judge and Christian counsel were united in their hatred of the Atheist. My argument fell on deaf ears; I distinctly admitted that I was an Atheist, that I had withdrawn the child from religious instruction at school, that I was the author of the "Gospel of Atheism", "The Fruits of Christianity", "The Freethinkers' Text Book, Part II.", and "The Law of Population", produced against me: I claimed her custody on the ground that it was given me by the deed of separation executed by the father who was trying to set it aside, and that no pretence was made that the child was neglected, the admission being, on the contrary, that she was admirably cared for: I offered lastly, if she were taken from me, to devote L110 a-year to her maintenance and education, provided that she were placed in the hands of a third person, not of her father. Sir George Jessel decided against me, as he had clearly intended to do from the very outset, and as the part of his judgment affecting Freethinkers as parents is of continued interest I reprint it here.
"I am glad to say that, so far as I can see, Mrs. Besant has been kind and affectionate in her conduct and behavior towards the child, and has taken the greatest possible care of her so far as regards her physical welfare. I have no doubt she entertains that sincere affection for the child which a mother should always feel, and which no merely speculative opinions can materially affect. But, unfortunately, since her separation from her husband, Mrs. Besant has taken upon herself not merely to ignore religion, not merely to believe in no religion, but to publish and avow that non-belief—to become the publisher of pamphlets written by herself, and to deliver lectures composed by herself, stating her disbelief in religion altogether, and stating that she has no belief in the existence of a providence or a God. She has endeavored to convince others, by her lectures and by her pamphlets, that the denial of all religion is a right and proper thing to recommend to mankind at large. It is not necessary for me to express any opinion as to the religious convictions of any one, or even as to their non-religious convictions. But I must, as a man of the world, consider what effect on a woman's position this course of conduct must lead to. I know, and must know as a man of the world, that her course of conduct must quite cut her off, practically, not merely from the sympathy of, but from social intercourse with, the great majority of her sex. I do not believe a single clergyman's wife in England living with her husband would approve of such conduct, or associate with Mrs. Besant; and I must take that into consideration in considering what effect it would have upon the child if brought up by a woman of such reputation. But the matter does not stop there. Not only does Mrs. Besant entertain those opinions which are reprobated by the great mass of mankind—whether rightly or wrongly I have no business to say, though I, of course, think rightly—but she carries those speculative opinions into practice as regards the education of the child, and from the moment she does that she brings herself within the lines of the decisions of Lord Chancellors and eminent judges with reference to the custody of children by persons holding speculative opinions, and in those cases it has been held that before giving the custody of a child to those who entertain such speculative opinions the Court must consider what effect infusing those opinions as part of its practical education would have upon the child. That is undoubtedly a matter of the greatest importance. Upon this point there is no conflict of testimony whatever. Mrs. Besant herself says that she prohibited the governess from giving any religious education to the child, and has prevented the child from obtaining any religious education at all. When the child went to school— a day school, as I understand—Mrs. Besant prohibited the governess of that school from imparting any religious education, in the same way that she had prohibited the former governess, who was a home governess, from giving any religious education, and Mrs. Besant gave none herself. It is, therefore, not only the entertaining and publishing these opinions, but she considers it her duty so to educate the child as to prevent her having any religious opinions whatever until she attains a proper age. I have no doubt that Mrs. Besant is conscientious in her opinions upon all these matters, but I also have a conscientious opinion, and I am bound to give effect to it. I think such a course of education not only reprehensible but detestable, and likely to work utter ruin to the child, and I certainly should upon this ground alone decide that this child ought not to remain another day under the care of her mother."
As to the publication of the Knowlton pamphlet, Sir George Jessel decided that that also was a good ground for separating mother and child. He committed himself to the shameful statement, so strongly condemned by the Lord Chief Justice, that Dr. Knowlton was in favor of "promiscuous intercourse without marriage", and then uttered the gross falsehood that his view "was exactly the same as was entertained by the Lord Chief Justice of England". After this odious misrepresentation, I was not surprised to hear from him words of brutal insult to myself. I print here an article on him written at the time, not one word of which I now regret, and which I am glad to place on record in permanent form, now that only his memory remains for me to hate.
"SIR GEORGE JESSEL.
"During the long struggle which began in March, 1877, no word has escaped me against the respective judges before whom I have had to plead. Some have been harsh, but, at least, they have been fairly just, and even if a sign of prejudice appeared, it was yet not sufficient to be a scandal to the Bench. Of Sir George Jessel, however, I cannot speak in terms even of respect, for in his conduct towards myself he has been rough, coarse, and unfair, to an extent that I never expected to see in any English judge. Sir George Jessel is subtle and acute, but he is rude, overbearing, and coarse; he has the sneer of a Mephistopheles, mingled with a curious monkeyish pleasure in inflicting pain. Sir George Jessel prides himself on being 'a man of the world', and he expresses the low morality common to that class when the phrase is taken in its worst sense; he holds, like the 'men of the world', who 'see life' in Leicester Square and the Haymarket, that women are kept chaste only through fear and from lack of opportunity; that men may be loose in morals if they will, and that women are divided into two classes for their use—one to be the victims and the toys of the moment, the others to be kept ignorant and strictly guarded, so as to be worthy of being selected as wives. Sir George Jessel considers that a woman becomes an outcast from society because she thinks that women would be happier, healthier, safer, if they had some slight acquaintance with physiology, and were not condemned, through ignorance, to give birth to human lives foredoomed to misery, to disease, and to starvation. Sir George Jessel says that no 'modest woman' will associate with one who spreads among her sex the knowledge which will enable her sisters to limit their families within their means. The old brutal Jewish spirit, regarding women as the mere slaves of men, breaks out in the coarse language which disgraced himself rather than the woman at whom it was aimed. Sir George Jessel might have been surprised, had he been in the Free Trade Hall, Manchester, on the following day, and had seen it filled with men and women, quiet looking, well dressed, and respectable, and had heard the cries of 'Shame on him!' which rang round the hall, when his brutal remark was quoted. Such language only causes a re-action towards the insulted person even among those who would otherwise be antagonistic, and Sir George Jessel has ranged on my side many a woman who, but for him, would have held aloof.
"Sir George Jessel is a Jew; he thinks that a parent should be deprived of a child if he or she withholds from it religious training. Two hundred years ago, Sir George Jessel's children might have been taken from him because he did not bring them up as Christians; Sir George Jessel and his race have been relieved from disabilities, and he now joins the persecuting majority, and deals out to the Atheist the same measure dealt to his forefathers by the Christians. The Master of the Rolls pretended that by depriving me of my child he was inflicting no punishment on me! If the Master of the Rolls have any children, he must be as hard-hearted in the home as he is on the bench, if he would not feel that any penalty was inflicted on him if his little ones were torn from him and handed over to a Christian priest, who would teach them to despise him as a Jew, and hate him as a denier of Christ. Even now, Jews are under many social disabilities, and even when richly gilt, Christian society looks upon them with thinly-concealed dislike. The old wicked prejudice still survives against them, and it is with shame and with disgust that Liberals see a Jew trying to curry favor with Christian society by reviving the obsolete penalties once inflicted on his own people.
"Sir George Jessel was not only brutally harsh; he was also utterly unfair. He quoted the Lord Chief Justice as agreeing with him in his judgment on Knowlton, on points where the Chief had distinctly expressed the contrary opinion, and he did this not through ignorance, but with the eloquent words of Sir Alexander Cockburn lying in front of him, and after I had pointed out to him, and he had deliberately read, or professed to read, the passages which contained the exact contrary of that which he put into the Chief's mouth.
"Of one thing Sir George Jessel and his Christian friends may be sure: that neither prosecution nor penalty will prevent me from teaching both Atheism and Malthusianism to all who will listen to me, and since Christianity is still so bigoted as to take the child from the mother because of a difference of creed, I will strain every nerve to convert the men and women around me, and more especially the young, to a creed more worthy of humanity.
"Sir George Jessel pretended to have the child's interests at heart: in reality he utterly ignored them. I offered to settle L110 a year on the child if she was placed in the charge of some trustworthy and respectable person, but the Master did not even notice the offer. He takes away the child from plenty and comfort, and throws her into comparative poverty; he takes her away from most tender and watchful care, and places her under the guardianship of a man so reckless of her health, that he chose the moment of her serious illness to ask for her removal; he takes her away from cultured and thoughtful society to place her among half-educated farmers. Nay, he goes further: Dr. Drysdale's affidavit stated that it was absolutely necessary at present that she should have her mother's care; and Sir George Jessel disregards this, and, in her still weak state, drags her from her home and from all she cares for, and throws her into the hands of strangers. If any serious results follow, Sir George Jessel will be morally, though not legally, responsible for them. In her new home she can have no gentle womanly attendance. No Christian lady of high character will risk the misconstruction to which she would be exposed by living alone at Sibsey Vicarage with a young clergyman who is neither a bachelor nor a widower; the child will be condemned either to solitary neglect at home, or to the cold strictness of a boarding-school. She is bright, gay, intelligent, merry now. What will she be at a year's end? My worst wish for Sir George Jessel is that the measure he has meted out to me may, before he dies, be measured out to him or his."
There is little to add to the story. I gave the child up, as I was compelled to do, and gave notice of appeal to the Court of Appeal against the order of the Master of the Rolls. Meanwhile, as all access to the children was denied me by the father, I gave him notice that unless access were given I would sue for a restitution of conjugal rights, merely for the sake of seeing my children. As the deed of separation had been broken by his action, I supposed that the courts would not permit it to be broken for his advantage while holding it binding on me. Unhappily, at this critical point, my health gave way; the loneliness and silence of the house, of which my darling had always been the sunshine and the music, weighed on me like an evil dream: at night I could not sleep, missing in the darkness the soft breathing of the little child; her cries as she clung to me and was forcibly carried away rang ever in my ears; at last, on July 25th, I was suddenly struck down with fever, and had the rest of pain and delirium instead of the agony of conscious loss. While I was lying there prostrate an order was served on me from the Master of the Rolls, granted on Mr. Besant's application, to restrain me from bringing any suit against him. As soon as I recovered, I took steps for contesting this order, but no definite action could be taken until after the Long Vacation. The case came on for hearing first in November, 1878, and then in January, 1879. All access to the children had been denied me, and the money due to me had been withheld. By this my opponent had put himself so completely in the wrong that even the Master of the Rolls uttered words of severe condemnation of the way in which I had been treated. Then a curious interlude took place. The Master of the Rolls advised me to file a counter-claim for divorce or for judicial separation, and I gladly agreed to do so, feeling very doubtful as to the Master of the Rolls' power to do anything of the kind, but very glad that he should think he had the authority. While the claim was being prepared, I obtained access to the children under an interim order, as well as the money owing to me, and at the end of March the case again came before the Master of the Rolls. The claim filed alleged distinct acts of cruelty, and I brought witnesses to support the claim, among them the doctor who had attended me during my married life. Mr. Ince filed an answer of general denial, adding that the acts of cruelty, if any, were "done in the heat of the moment". He did not, however, venture to contest the case, although I tendered myself for cross-examination, but pleaded the deed of separation as a bar to further proceedings on my part; I argued on the other hand that as the deed had been broken by the plaintiff's act, all my original rights revived. Sir George Jessel held that the deed of separation condoned all that had gone before it, if it was raised as a bar to further proceedings, and expressed his regret that he had not known there would be "any objection on the other side", when he advised a claim for a judicial separation. On the final hearing of the case in April in the Rolls' Court Sir George Jessel decided that the deed of separation was good as protecting Mr. Besant from any suit on my part to obtain a decree for the restitution of conjugal rights, although it had been set aside on the one matter of value to me—the custody of my child. The net result of the proceedings was that had I gone to the Divorce Court in 1873, I might at least have obtained a divorce a mensa e thoro; that in my desire to avoid publicity, and content in what I believed to be secure possession of my child, I had agreed to a deed which fully protected Mr. Besant against any action on my part, but which could be set aside by him for the purpose of robbing me of my child.
The argument in the Court of Appeal came on during April, and was, as I expected, decided against me, the absolute right of the father being declared, and a married mother held to have no sort of claim over her own children. The worst stigma affixed to marriage by the law of England is this ignoring of any right of the married mother to her child; the law protects the unmarried, but insults the married, mother, and places in the hands of the legal husband an instrument of torture whose power to agonise depends on the tenderness and strength of the motherliness of the wife. In fact the law says to every woman: "Choose which of these two positions you will have: if you are legally your husband's wife you can have no legal claim to your children; if legally you are your husband's mistress, then your rights as mother are secure".
But one thing I gained in the Court of Appeal. The Court expressed a strong view as to my right of access, and directed me to apply to Sir George Jessel for it, stating that it could not doubt that he would give it. I made the application and obtained an order of access to the children, seeing them alone, once a month; of a visit of the children to London twice a year, with their governess, for a week each time; of a week at the seaside in similar fashion once a year; of a weekly letter from each of them with the right of reply. This order, obtained after such long struggle, has proved useless. The monthly visit so upset my poor little daughter, and made her fret so constantly after me, that in mercy to her I felt compelled to relinquish it; on the first visit to the seaside, I was saddled with the cost of maintaining the Rev. Mr. and Mrs. Child, who were placed as guardians of the children, and who treated me in their presence as though I were a dangerous animal from whom they were to be protected. To give but an instance of the sort of treatment I received, I wished Mabel to have the benefit of sea-bathing, and was told that she could not be allowed to bathe with me, and this with a suggestiveness that sorely taxed my self-control. I could not apply to the Court against the ingenious forms of petty insult employed, while I felt that they must inevitably estrange the children from me if practised always in their presence. After a vain appeal that some sort of consideration should be shown to me, an appeal answered by a mocking suggestion that I should complain to the Master of the Rolls, I made up my mind as to my future course. I resolved neither to see nor to write to my children until they were old enough to understand and to judge for themselves, and I know that I shall win my daughter back in her womanhood, though I have been robbed of her childhood. By effacing myself then, I saved her from a constant and painful struggle unfitted for childhood's passionate feelings, and left her only a memory that she loves, undefaced by painful remembrances of her mother insulted in her presence.
Unhappily Sir George Jessel has terribly handicapped her future; left to me she would have had the highest education now open to girls; left to her present guardian she receives only fifth-rate teaching, utterly unfitted for the present day. Twice I have offered to bear the whole expense of her education in the High School at Cheltenham, or in some London College, without in any way appearing in the matter, but each time my offer has been roughly and insultingly refused, and the influence that marred the mother's life is undermining the future happiness of the child's. But I am not without hope that I may be able to obtain from the Court of Chancery an order for the benefit of its ward, and I trust before very long that I shall be able to insure to my child an education which will fit her to play her part worthily when she reaches womanhood. I had hoped to save her from the pain of rejecting a superstitious faith, but that is now impossible, and she must fight her way out of darkness into light as her mother did before her. But in order that she may do so, education now is of vital importance, and that I am striving to obtain for her. I live in the hope that in her womanhood she may return to the home she was torn from in her childhood, and that, in faithful work and noble endeavor, she may wear in future years in the Freethought ranks a name not wholly unloved or unhonored therein, for the sake of the woman who has borne it in the van through eleven years of strife.