The trial of Lady Chatterley's Lover
http://www.guardian.co.uk/books/2010/oct/22/dh-lawrence-lady-chatterley-trial
No other jury verdict has had such a profound social impact as the
acquittal of Penguin Books in the Lady Chatterley trial. Fifty years
on, Geoffrey Robertson QC looks at how it changed Britain's cultural
landscape. A preview from tomorrow's Guardian Review.
Geoffrey Robertson
22 October 2010
The Old Bailey has, for centuries, provided the ultimate arena for
challenging the state. But of all its trials for murder and mayhem,
for treason and sedition none has had such profound social and
political consequences as the trial in 1960 of Penguin Books for
publishing Lady Chatterley's Lover. The verdict was a crucial step
towards the freedom of the written word, at least for works of
literary merit (works of no literary merit were not safe until the
trial of Oz in 1971, and works of demerit had to await the acquittal
of Inside Linda Lovelace in 1977). But the Chatterley trial marked
the first symbolic moral battle between the humanitarian force of
English liberalism and the dead hand of those described by George
Orwell as "the striped-trousered ones who rule", a battle joined in
the 1960s on issues crucial to human rights, including the
legalisation of homosexuality and abortion, abolition of the death
penalty and of theatre censorship, and reform of the divorce laws.
The acquittal of Lady Chatterley was the first sign that victory was
achievable, and with the guidance of the book's great defender,
Gerald Gardiner QC (Labour lord chancellor 196470), victory was, in
due course, achieved.
There is a myth that freedom of speech has been safely protected in
England by the jury. This is almost precisely the opposite of the
truth. Old Bailey juries (comprised until 1972 solely of property
owners) usually did what they were told by judges, and convicted.
Until 1959, the publisher of a book that contained any "purple
passage" that might have a "tendency to deprave and corrupt those
whose minds are open to such immoral influences" was liable to
imprisonment. Literary standards were set at what was deemed
acceptable reading for 14-year-old schoolgirls whether or not they
could, or would want to, read it. Merit was no defence: in 1928
Radclyffe Hall's The Well of Loneliness was destroyed by a magistrate
who realised to his horror that one line in the novel ("and that
night they were not divided") meant that two female characters had
been to bed together. He said this would "induce thoughts of a most
impure character and would glorify the horrible tendency of
lesbianism"; the prosecution had Rudyard Kipling attend the court, in
case the magistrate needed a literary expert to persuade him to "keep
the Empire pure". Censorship of sexual references in literature was
pervasive in England in the 1930s (there was a brief respite for
James Joyce's Ulysses when a sumptuously bound copy was found among
the papers of a deceased lord chancellor). In the 1950s police seized
copies of the Kinsey report and prosecuted four major publishers for
works of modern fiction three were convicted. In this period, books
by Henry Miller, Lawrence Durrell, Cyril Connolly and others were
available only to those English readers who could afford to travel to
Paris to purchase them.
In 1959, persuaded by the Society of Authors, parliament passed a new
Obscene Publications Act with a preamble that promised "to provide
for the protection of literature and to strengthen the law concerning
pornography". The distinction was to prove elusive, certainly to the
attorney general, Reginald Manningham-Buller. In August 1960 he read
the first four chapters of Lady Chatterley's Lover on the boat train
to Southampton and wrote to the director of public prosecutions
approving the prosecution of Penguin Books ("I hope you get a
conviction"). The key factor in the decision to prosecute was that
Penguin proposed to sell the book for 3/6; in other words, to put it
within easy reach of women and the working classes. This, the DPP's
files reveal, was what the upper-middle-class male lawyers and
politicians of the time refused to tolerate.
The choice of Lady Chatterley as a test-case was inept, but it suited
the anti-intellectual temper of the legal establishment and it would
mean the defeat of an impeccably liberal cause. Besides, DH Lawrence
had form. Back in 1915 all copies of The Rainbow had been seized by
police and burned (as much for its anti-war message as for its
openness about sex). In 1928, police threatened the publisher Martin
Secker with prosecution unless it removed 13 pages from Pansies, a
book of Lawrence's poems. The publisher complied, but sent all its
unexpurgated copies abroad. The following year police raided an
exhibition of Lawrence's paintings and seized every canvas on which
they could descry any wisp of pubic hair. For the next 30 years
British customs erected a cordon sanitaire to keep out smuggled
copies of Lady Chatterley, which by this time was being published in
France and Italy. So Lawrence was entrenched in prudish English minds
as the filthy fifth columnist, an enemy much more dangerous than
predictably dirty foreigners such as De Sade or Nabokov (whose banned
Lolita would have been a more sensible target). With parochial
arrogance, the prosecuting authorities ignored the New York court of
appeal, which in 1959 had overturned a ban on Lady Chatterley because
it was written with "a power and tenderness which was compelling" and
which justified its use of four-letter Anglo-Saxon words.
Those words were a red rag to Manningham-Buller and the "grey elderly
ones" (as Lawrence had described his censors), a breach of the
etiquette and decorum relied on to cover up unpleasant truths. In
1960, in the interests of keeping wives dutiful and servants touching
their forelocks, Lady Constance Chatterley's affair with a gamekeeper
was unmentionable. The prosecutors were complacent: they would have
the judge on their side, and a jury comprised of people of property,
predominantly male, middle aged, middle minded and middle class. And
they had four-letter words galore: the prosecuting counsel's first
request was that a clerk in the DPP's office should count them
carefully. In his opening speech to the jury, he played them as if
they were trump cards: "The word 'fuck' or 'fucking' appears no less
than 30 times . . . 'Cunt' 14 times; 'balls' 13 times; 'shit' and
'arse' six times apiece; 'cock' four times; 'piss' three times, and so on."
But what the prosecution failed to comprehend was that the 1959 Act
had wrought some important changes in the law. Although it retained a
"tendency to deprave and corrupt" as the test of obscenity, books had
now to be "taken as a whole" that is, not judged solely on their
purple passages and only in respect of persons likely to read them;
in other words, not 14-year-old schoolgirls, unless they were
directed to that teenage market. Most importantly, section 4 of the
Act provided that even if the jury found that the book tended to
deprave and corrupt it could nonetheless acquit if persuaded that
publication "is justified in the interests of science, literature,
art and learning or any other object of general concern". The unsung
hero of the trial, Penguin's solicitor, Michael Rubinstein, threw
himself into the task of recruiting expert witnesses for the defence
not just professors of literature but famous novelists and unknown
novelists, journalists, psychologists and even clerics.
After the case had been lost, the attorney general pretended that the
Crown had disdained to match the defence "bishop for bishop and don
for don", but this was a lie. In fact, the prosecution made desperate
attempts to find anyone of distinction who might support a ban on
Lawrence's novel. The DPP's first suggestion was to rely again on
Kipling, until it was discovered that he had died in 1936. TS Eliot
turned them down, as did FR Leavis (although he also refused to
testify for the defence) and Helen Gardner, reader in English
literature at Oxford, who told the DPP (as she was later to tell the
jury) that the book was the work of a writer of genius and complete
integrity. It is a measure of the narrowness of legal education in
England in those days that this had simply not occurred to the
lawyers in the DPP's office or to the team of Treasury Counsel, a
pampered, old-Etonian set of barristers who conduct major
prosecutions at the Old Bailey before their inevitable elevation to
its judicial benches. Its leader, Mervyn Griffith-Jones, had no
interest in literature: he was the incarnation of upper-middle-class
morality, obsessed with the book's danger to social order. His
famously asinine question about wives and servants was asked
rhetorically and with utter sincerity.
Griffith-Jones's assumptions about society reflected his station in
it, and as the trial developed he seemed more scandalised by adultery
especially with a servant than by the four-letter words that had
preoccupied him at the start. Those few witnesses he bothered to
cross-examine were tackled on subjects he knew nothing about, and he
tried to cover up his own confusion with gratuitous insults ("you are
not at Leicester University at the moment"). Ignorant of the facts as
well as the facts of life, Griffith-Jones failed even to recognise
Lawrence's paean to anal sex. ("Not very easy, sometimes, not very
easy, you know, to know what in fact he is driving at in that
passage"). After the trial the warden of All Souls, John Sparrow,
wrote an article in Encounter claiming that the jury would have
convicted had the prosecution been able to identify which passage was
being driven at, but he, too, did not understand the new law. Under
the 1959 Act, purple passages, even on the subject of heterosexual
buggery (still the "abominable crime"), no longer necessarily meant a
guilty verdict. Jurors had to ask themselves the common-sense
question of whether the publication as a whole would do any harm and,
if so, whether its literary merit might redeem it.
The tactical superiority of the defence team was evident from the
outset. In a daring move on the first day of the trial, Gardiner and
Jeremy Hutchinson QC declined the judge's invitation to invoke the
sexist law that allowed them to empanel an all-male jury in obscenity
cases, and even used their right of challenge to add a third female
juror. They realised the danger that an all-male jury might be
over-protective towards women in their absence and they calculated
that the prosecution's paternalism would alienate female jurors.
Gardiner's forensic performance, transcribed in CH Rolph's Penguin
Special The Trial of Lady Chatterley, was a masterclass in modern
barristering. He eschewed the histrionics of Old Bailey hacks like
Marshall Hall ("look at her, gentleman of the jury. God never gave
her a chance won't you?"). Instead, he addressed the jury in
powerful but straightforward language, respecting them but never
condescending or playing obviously to their sympathy. He firmly
indicated that they, not the judge, were responsible for the verdict.
Had there been no jury, Justice Byrne would certainly have convicted.
Byrne directed the jury to consider whether the book "portrays the
life of an immoral woman", to remember the meaning of "lawful
marriage" in a Christian country and to reflect that "the gamekeeper,
incidentally, had a wife also. Thus what the ultimate result there
would be is a matter for you to consider."
Judges in 1960 regarded themselves, rather more than they do today,
as the custodians of moral virtue. In performing this egregious
function, they came to blur the distinction between literature and
life. Their confusion was well represented by Lord Hailsham, in the
parliamentary debate that followed the verdict: "Before I accepted as
valid or valuable or even excusable the relationship between Lady
Chatterley and Mellors, I should have liked to know what sort of
parents they became to the child . . . I should have liked to see the
kind of house they proposed to set up together; I should have liked
to know how Mellors would have survived living on Connie's rentier
income of £600 . . . and I should have liked to know whether they
acquired a circle of friends, or, if not, how their relationship
survived social isolation."
So far as Byrne and Hailsham and Griffith-Jones were concerned, the
function of the modern novel was that laid down by Oscar Wilde's Miss
Prism: "the good end happily, the bad end unhappily that is what
'fiction' means." The acquittal was a victory for moral relativism
and sexual tolerance, as well as for literary freedom.
No other jury verdict in British history has had such a deep social
impact. Over the next three months Penguin sold 3m copies of the book
an example of what many years later was described as "the
Spycatcher effect", by which the attempt to suppress a book through
unsuccessful litigation serves only to promote huge sales. The jury
that iconic representative of democratic society had given its
imprimatur to ending the taboo on sexual discussion in art and
entertainment. Within a few years the stifling censorship of the
theatre by the lord chamberlain had been abolished, and a gritty
realism emerged in British cinema and drama. (Saturday Night and
Sunday Morning came out at the same time as the unexpurgated Lady
Chatterley, and very soon Peter Finch was commenting on Glenda
Jackson's "tired old tits" in Sunday Bloody Sunday and Ken Tynan said
the first "fuck" on the BBC.) Homosexuality was decriminalised,
abortions were available on reasonable demand, and in order to obtain
a divorce it was unnecessary to prove that a spouse had committed the
"matrimonial crime" of adultery. Judges no longer put on black caps
to sentence prisoners to hang by the neck until dead.
In 1960, Sir Allen Lane took some risks and suffered a lot of
personal abuse, although his lawyers adroitly arranged for the case
to be brought against the company rather than its directors in
person, so there was never any danger of a prison sentence. But he
put his company in peril for a principle: "my idea was to produce a
book that would sell at the price of 10 cigarettes". Books have
increased in price even more than cigarettes over the past 50 years
and caused a lot less harm. Indeed, the message of Lady Chatterley's
Lover, half a century after the trial, is that literature in itself
does no harm at all. The damage that gets attributed to books and
to plays and movies and cartoons is caused by the actions of people
who try to suppress them.
.
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