The year 1878 was a dark one for me; it saw me deprived of my little
daughter, despite the deed of separation by which the custody of the
child had been assigned to me. The first notice that an application was
to be made to the High Court of Chancery to deprive me of this custody
reached me in January, 1878, while the decision on the Knowlton case was
still pending, but the petition was not filed till April. The time was
ill-chosen; Mabel had caught scarlet fever at a day-school she was
attending, and for some days was dangerously ill. The fact of her illness
was communicated to her father, and while the child was lying ill in bed,
and I had cancelled all engagements so that I might not leave her side, I
received a copy of the petition to deprive me of her custody. This
document alleged as grounds for taking away the child:
"The said Annie Besant is, by addresses, lectures, and writings,
endeavoring to propagate the principles of Atheism, and has published a
book intituled: 'The Gospel of Atheism'. She has also associated herself
with an infidel lecturer and author, named Charles Bradlaugh, in giving
lectures and in publishing books and pamphlets, whereby the truth of the
Christian religion is impeached, and disbelief in all religion is
inculcated.
"The said Annie Besant has also, in conjunction with the said Charles
Bradlaugh, published an indecent and obscene pamphlet called 'The Fruits
of Philosophy'.
"The said pamphlet has recently been the subject of legal proceedings, in
the course of which the said Annie Besant publicly justified its contents
and publication, and stated, or inferred, that in her belief it would be
right to teach young children the physiological facts contained in the
said pamphlet. [This was a deliberate falsehood: I had never stated or
inferred anything of the kind.] The said Annie Besant has also edited and
published a pamphlet intituled 'The Law of Population; its consequences,
and its bearing upon human conduct and morals', to which book or pamphlet
your petitioners crave leave to refer."
The petition was unfortunately heard before the Master of the Rolls, Sir
George Jessel, a man animated by the old spirit of Hebrew bigotry, and
who had superadded to this the coarse time-serving morality of "a man of
the world", sceptical of all sincerity, and contemptuous of all
self-devotion to a cause that did not pay, as of a weakness by which he
was himself singularly unassailable. The treatment I received at his
hands on my first appearance in Court told me what I had to expect. After
my previous experience of the courtesy of English judges, I was startled
to hear a harsh, loud voice exclaim, in answer to a statement from Mr.
Ince. Q.C., that I appeared in person:
"Appear in person? A lady appear in person? Never heard of such a thing!
Does the lady really appear in person?"
After a variety of similar remarks, delivered in the most grating tones
and with the roughest manner, Sir George Jessel tried to attain his
object by browbeating me directly.
"Is this the lady?"
"I am the respondent to the petition, my lord--Mrs. Besant." "Then I
advise you, Mrs. Besant, to employ counsel to represent you, if you can
afford it, and I suppose you can."
"With all submission to your lordship, I am afraid I must claim my right
of arguing my case in person."
"You will do so if you please, of course, but I think you had much better
appear by counsel. I give you notice that, if you do not, you must not
expect to be shown any consideration. You will not be heard by me at any
greater length than the case requires, nor allowed to go into irrelevant
matter, as persons who argue their own cases generally do."
"I trust I shall not do so, my lord; but in any case I shall be arguing
under your lordship's complete control."
This encouraging beginning may be taken as a sample of the case. Mr.
Ince, the counsel on the other side, was constantly practising in the
Rolls' Court, knew all the judge's peculiarities, how to flatter and
humor him on the one hand, and how to irritate him against his opponent
on the other. Nor was Mr. Ince above using his influence with the Master
of the Rolls to obtain an unfair advantage, knowing that whatever he said
would be believed against any contradiction of mine: thus he tried to
obtain costs against me on the ground that the public helped me, whereas
his client received no subscriptions in aid of his suit; yet as a matter
of fact subscriptions had been collected for his client, and the Bishop
of Lincoln, and many of the principal clergy and churchmen of the diocese
had contributed liberally towards the persecution of the Atheist.
Mr. Ince and Mr. Bardswell argued that my Atheism and Malthusianism made
me an unfit guardian for my child; Mr. Ince declared that Mabel, educated
by me, would "be helpless for good in this world", and "hopeless for good
hereafter"; outcast in this life and damned in the next; Mr. Bardswell
implored the Judge to consider that my custody of her "would be
detrimental to the future prospects of the child in society, to say
nothing of her eternal prospects". I could have laughed, had not the
matter been so terribly serious, at the mixture of Mrs. Grundy,
marriage-establishment, and hell, presented as an argument for robbing a
mother of her child. Once only did judge and counsel fall out; Mr.
Bardswell had carelessly forgotten that Sir George Jessel was a Jew, and
lifting eyes to heaven said:
"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 £110 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 £110 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.