RE-READING THE LADY CHATTERLEY TRIALS AFTER 60 YEARS

The three versions of Lady Chatterley’s Lover that DH Lawrence wrote in the late 1920s are each progressively more anally erotic. And that eroticism in the third version, the one that was the subject of trial in New York in 1959 and  in London in October/November 1960, was central to the denouement of the plot.

So it is all the more remarkable that the heterosexual sodomy between Lady Chatterley and her husband’s gamekeeper Oliver Mellors was only hinted at and never named by the Prosecutor at the last minute in the first British test case of the Obscene Publications Act of 1959 at a time when such acts could attract very severe prison sentences.

The texts of the trial – among them the novel, the witness statements both oral and written, the paper trail of civil service memoranda available in the UK National Archives and the working notes of the Prosecution – are illuminating six decades later. Not least because the Judge’s copy of Lady Chatterley’s Lover is now available for inspection of the annotations made by his wife, who sat beside him throughout the trial at the Old Bailey.

They bear close reading but it is perhaps necessary to warn as Otto von Bismarck is said to have said ‘Laws are like sausages. It’s best not to see them being made.’

Diane Trilling commented in 1947 that in an earlier version of the Chatterley story

‘the whole tenor of the novel is political, but that as Lawrence rewrote the book the labor-capital situation disappeared as a prime motif, to be replaced by the sexual motif; that it is now Mellors’s [sic] very classlessness that Lawrence offers as an assurance of his manliness.’

Ten years later Grove Press in New York published the third version of the book ‘complete and unexpurgated.’

In his Introduction to the Grove edition the literary critic Mark Schorer noted that ‘in each version as it succeeds an earlier, the treatment of the sexual act becomes more and more explicit’.

Too explicit for the Postmaster of the City of New York who ‘denied the U.S mails’ to the publisher and distributor. In July 1959 District Judge Bryan3 removed the ban on appeal.

The judge found that Grove as a reputable publisher had consulted recognized literary critics and authorities on English Literature as to the advisability of publication. Pointing also to the letter prefacing the book from the prominent poet and former Librarian of Congress, Archibald MacLeish and the Introduction by Schorer, Judge Bryan reported that all these experts ‘were of the view that the work was of major literary importance and should be made available to the American public.’

On its publication this view was confirmed by the reviews and editorials in all the major newspapers of the United States. And, said Judge Bryan, there had been ‘nothing of “the leer of the sensualist” in the promotion and distribution of the book.’

New York City’s Postmaster had ruled the book ‘non-mailable because it offends contemporary community standards’ but, said Judge Bryan,

‘I am unable to ascertain upon what the Postmaster General based this conclusion. The record before him indicates general acceptance of the book throughout the country and nothing was shown to the contrary.’

On the basis of this reception by the literary and newspaper fraternities Judge Bryan – sitting alone without a jury – held that

‘at this stage in the development of our society, this major English novel,[sic] does not exceed the outer limits of the tolerance which the community as a whole gives to writing about sex and sex relations.’

Former Librarian of Congress MacLeish wrote in the Letter to Barney Rossett prefacing the 1959 Grove edition that in the censored copy he had been shown

‘What has been excluded…is any passage which contains one of the old, familiar, four-letter Anglo-Saxon words which we all know but which the hypocrisy of censorship pretends we don’t, or any passage which describes the common-place facts of sexual intercourse, or any passage which attempts to penetrate the mystery of human love which, as Yeats unanswerably puts it, has “raised its mansion in /The place of excrement.” ‘

Heartened by the decision in New York, a very similar similar strategy to that which succeeded before Judge Bryan was used by the Defence team in the trial of the Penguin edition of Lady Chatterley’s Lover at the Old Bailey in late October and early November 1960. But the recently altered law in the UK meant that this would be a trial before a jury.

***

In his memoir of life in the English Courts, including fighting an important obscenity case himself in the late 1960s, John Mortimer stated

‘Lady Chatterley and her gamekeeper were acquitted, much to the irritation of the Judge and the outrage of the Judge’s wife.’

It was not uncommon for British Judge’s wives to attend trials and Lady Byrne sat beside her husband throughout the Lady Chatterley trial.

Geoffrey Robertson QC, an Australian lawyer still practising in London who had been inspired6 to study law when he read the abridged transcript of the trial as a schoolboy in Sydney, insisted in on the fiftieth anniversary of the trial that ‘Had there been no jury, Justice Byrne would certainly have convicted.’

But the role of Mr Justice Byrne was more complex and nuanced than these comments suggest. And a central element in interpreting the judge’s handling of the case is now available to us, in the copy of the novel that Lady Byrne marked up for the judge and brought into court each day in a demure damask dilly bag.

After being in private hands for many years, it was bought by Bristol University last year, virtually on the 59th anniversary of the day that the nine men and three women of the jury acquitted Penguin Books Ltd of publishing a book that had been declared obscene then order destroyed in nearly a score of earlier prosecutions in Britain.

***

The new UK Obscene Publications Act came into force on August 29 1959, barely a month after Judge Bryan’s decision in New York. It provided for a defence of literary or other merit as justification of a publication that might be obscene in its whole or its parts.

Obscene language or depiction or music was defined as ‘if its effect…is, if taken as a whole, such as to tend to deprave or corrupt’ the readers, viewers or hearers thereof. However, books, films or other articles found to be obscene would not seized and destroyed if ‘it is proved that publication of the article in question is justified as being for the public good on the ground that it is in the interests of science, literature, art or learning, or of other objects of general concern.’

The Act provided that ‘the opinion of experts as to the literary, artistic, scientific or other merits of an article may be admitted in proceeding under this Act either to establish or to negative the said ground.’

The Act did not define who would constitute an ‘expert.’

Or as John Mortimer put it twenty years after the trial of Lady Chatterley’s Lover in words worthy of his alter ego Rumpole of the Bailey

‘A book is first found to be depraving and corrupting, causing its readers to slaver at the mouth, walk with their knuckles brushing the ground and show a general tendency to breathe heavily down the telephone and rape the lady traffic wardens. However, the same book may then be found to be so exquisitely well written that its effect is ennobling after all.’

And as the new Act now permitted trial by jury, Mortimer pointed out that these two limbs of prosecution and defence would need to be ‘readily understood by your regular Brixton jury’ – which in 1960 consisted of male and female property owners but not necessarily well-educated ones.

The jury would, as Judge Bryan had put it in the New York decision, in effect be arbiters of the ‘outer limits of the tolerance which the community as a whole gives to writing about sex and sex relations’ and whether or not this book breached those limits. And if it did, was it redeemed by its literary merit sufficient to be for the public good, however ‘merit’ and ‘good’ might be ascertained?

***

A Labour MP asked the Attorney General, Reginald Manningham-Buller in a Parliamentary Written Question9 on 5 February 1960 ‘whether he will give an assurance to the board of directors of Penguin Books Ltd, that their forthcoming publication of Lady Chatterley’s Lover will not be the subject of criminal proceedings?’ To which the Attorney-General replied ‘No.’ (Manningham-Buller was serving in the government of Prime Minister Harold MacMillan, himself a scion of a prominent London publishing house.)

So Penguin Books Ltd was clearly on notice when they commissioned the printing of 200,000 copies of the unexpurgated version in March of 1960. And in mid April the Attorney-General gave the same No for an answer when the MP asked if a firm would not be prosecuted ‘as a result of the intended printing of the unexpurgated edition.’

According to official Law Office memoranda on file in the UK National Archives, in March 1960 the Chief Constable of Peterborough sent to the Director of Public Prosecutions what appeared to be an unexpurgated edition of the book published by Penguin Books Ltd.

In June after it had become apparent from notices in the press that a wide publication at 3/6d was intended, the advice of Senior Treasury Counsel Mr Mervyn Griffith-Jones was sought. On 27th July 1960, he advised that proceedings should be instituted under the Obscene Publications Act, 1959.

During the early part of August, 1960 Detective Inspector Monaghan saw the Directors of Penguin Books Ltd on a number of occasions.

The Law Office file reports ‘At first the Company stated that they proposed to go ahead with the full publication of 200,000 copies. Subsequently it was agreed that there should be a limited publication so that the issue might be decided before full publication.’

Accordingly 12 copies of the work were technically published by being handed to Inspector Monahan on August 16. A Summons was granted on 19th August.

On August 22, 1960 Sir Theobald Mathew, the Director of Public Prosecutions, wrote11 to Sir Jocelyn Simon, the Solicitor General saying that ‘the Attorney’ had written to him on the train from Southampton that ‘I have read up to Chapter IV and it the remainder of the work is of the same character, I have no doubt you were right to start proceedings.’

By this time 55,000 copies of the book had been shipped to booksellers.

***

According to one ‘post mortem’ memo in the Law Office file from December 1960

‘If, having regard to the nature of a book and extent of the publication of the book and all other relevant circumstances, the Director of Public Prosecutions considers that there is a prima facie case of an offence against the Obscene Publications Act,1959, it is his duty to prosecute. It is for the accused to raise the defence that publication is for the public good.’

It is also noted that ‘It is not suggested by anyone concerned in the proceedings that there was not a prima facie case of an offence against Section 2 of the Obscene Publications Act.’

In fact, Mr Gardiner stated at the outset of his opening speech that ‘our Clients do not regard the book as obscene, and they do regard its publication as of particular importance, for the public good, to vindicate D.H. Lawrence’s integrity and non-pornographic intent in writing it, and to enable his place in English literature as a whole to be properly judged in this country for the first time.’

The memo points out that the conduct of the prosecution ‘is entirely a matter for counsel instructed by the DPP.’ Since the case was decided {after the Defence had presented thirty five expert witnesses and the Prosecution none} it has been suggested that the prosecution could have matched the defence “bishop for bishop and don for don”, don being British for college professor.

The Crown conceded that the book had literary merit; the prosecution case was that the book was obscene and that the merits were not such as to justify publication. The question whether a book is obscene, and the question whether publication is justified, are both matters for the jury and no evidence is admissible on either of them (as it is on the question whether the book has literary, artistic or other merits).

The evidence on the merits, other than literary merits of the book, did not appear to the prosecution to call for any rebutting evidence.’

Then there is a section in square brackets:

‘[The defence were permitted to call as experts some witnesses (for example, a young woman who had recently graduated) who did not appear to possess the qualifications such a witness is ordinarily expected to possess; and evidence was admitted of the opinion of defence witnesses on matters (for example, ethical standards) on which it had not previously been thought that the opinions of experts would be admissible.] ‘

In the covering note to this memorandum, sent to Office of the Lord President of the Council by G.E. Dudman of the Law Office, dated 6 December 1960

‘The passage in square brackets at the end of paragraph 23 is not intended to be used in a speech, at any rate in its unexpurgated form.

I should like to emphasise that the events described in paragraph 7 of the note [ referring to the ‘number of occasions’ on which the police and the Company met in early August leading to the decision to make a limited publication of 12 copies of the book on August 16 to the police] not add up to anything remotely resembling either a voluntary censorship or arrangements for a “test ” case.’

In fact, the Prosecutor Mr Griffith-Jones at the outset of his opening speech explained to the jury that the result of the conversations that had taken place with the police was that ‘the company should, in effect, provide evidence of a publication of the book in order that it should be brought before a jury really as a test case, so far as a criminal case can be a test case.’

In his application for costs at the conclusion of the trial the Defence counsel Mr Gardiner quoted this statement and pointed out to Mr Justice Byrne ‘I can understand the desire of the Director of Public Prosecutions to obtain a decision on the construction of this new Act and how it should work; but nobody appreciates being the vehicle for such a case.’

In the event, the Prosecution called only one witness, Detective Monahan to ‘prove publication.’ A memo sent to Lord Hailsham, Lord President of Council around 13 December 1960 cautiously commented on some of Mr Justice Byrne’s rulings.

‘The conduct of the case It may be said that the prosecution was not pursued with sufficient vigour, having regard to the neglect to lead any expert evidence for the prosecution. Section 4 provides for the admission of expert testimony as to the literary or artistic merits of an article, to establish or negative the ground that publication is in the interests of literature or learning. The learned judge ruled that [that repeated – corrected in handwriting to ‘the law’] did not allow the admission of expert evidence on the question of the book’s obscenity or on the question whether publication was for the public good.’

The writer comments somewhat ruefully

‘It is hard to imagine that anyone would suggest that “Lady Chatterley’s Lover” was not a work of some literary merit; and the prosecution conceded this. As there was no other ground on which the prosecution could have called expert evidence there can be no foundation for criticism of its failure to do so. It is true that the evidence led by the defence seemed at times directed to matters other than literary merit but it would be well not to refer to this lest some criticism of the judge’s conduct of the proceedings be inferred.’

Which suggests that Mr Justice Byrne had opened a gaping hole in the ramparts through which the Defence could force its chariots, as it did. But not without some impediments.

***

The jury of nine men and three women listed15 among their occupations driver, cabinet fitter, dock labourer, teacher, dress machinist, none, housewife, butcher and timber salesman.

Mollie Panter-Downes who attended the trial daily for The New Yorker reported the same week

‘For three days, dons, writers, churchmen, schoolteachers, publishers, critics, and editors—many of them famous and all vocal—came before us to testify strongly to Lawrence’s moral purposes in writing “Lady Chatterley.”’  Sir Allen Lane, Chairman of Penguin Ltd, later referred to the week as the most expensive seminar ever given on D.H. Lawrence.

As the jury went into deliberation on the last morning of the trial, Ms Panter-Downes reported that ‘The lunch-hour discussions seemed to agree that the aspect of Mr. Justice Byrne as he listened to the case was not such as might cause Penguin’s friends to feel hopeful. From the heights where he sat taking notes and turning his fine, thin face attentively upon each witness, he dropped occasional quiet questions like pebbles—small but with an edge. “If you cut the adultery out, would there be anything left?”

One of her neighbours in the courtroom said of the jury’s aspect: ‘“I’ve had a good look at them, and they all look to be decent, sensible people who won’t take any time to come to the proper conclusion,” he said. “If they had any doubts, the judge’s summing up must have helped them.”

As the jurors went out to deliberate on their decision, Ms Panter-Downes wrote

‘Mr. Justice Byrne’s summing up had certainly cast gloom upon everyone from Penguin, I found when I got out in the lobby. He had scrupulously enjoined the jurors to disregard anything he said if they did not agree with it, since he was there merely to direct them on the law. They must take the case as having two separate limbs, he suggested, the first being the question whether the book was obscene or not, the second being the question whether the merits so outweighed any obscenity that its publication would be for the public good.’

Ms Panter-Downes commented

‘strangely—since we had spent four days listening to the expert witnesses whose testimony, we had thought, was the important feature of the new act of Parliament—he seemed to imply that they, the ordinary people, were to judge how the book would be read in the home and the factory, not in “the rarefied atmosphere of some academic institution.” ‘

So ‘in spite of Mr. Gardiner’s brilliant and persuasive defending address, the general opinion in the lobby seemed to be that the jurors would not take long to come up with a verdict against Penguin.’

It wasn’t a quick decision. The jurors continued to deliberate through the lunch hour while Mr Justice Byrne sentenced what Ms Panter-Downes described as ‘two working-class men, of ordinary, pleasant countenance, who were standing between policemen to be sentenced for a series of disagreeable sexual offences against children. ‘

So it was a surprise to most in the court room when the jury gave a simple verdict of “Not guilty” after three hours deliberation.

***

Simple because as the memo from Private Secretary to the Parliamentary Under Secretary of State to Lord Hailsham, Lord President of Council around 13 December 1960 commented

‘The jury’s verdict was simply a finding of “notguilty”; the basis of that verdict is not known. The verdict could mean that (a) all the members of the jury were of the opinion that the book was not obscene; or (b) all the members of the jury were of the opinion that the book was obscene but that its publication was justified as being for the public good on the ground that it is in the interests of literature; or (c) that some members of the jury were of the opinion that the book was not obscene and the others that it was but that its publication was for the public good. The only thing that can be said with certainty is that no member of the jury was of the opinion that the book was obscene and that its publication was not justified for the public good; if there had been a juryman of this opinion, then the jury would have reported disagreement.’

C.H. Rolph remembered it differently a few months later in the Penguin Special The Trial of Lady Chatterley’s Lover. Rolph was secretary of the Herbert Committee, a group of leading publishers, authors, booksellers and printers who sought to change the criminal law about the censorship of literature.

‘It is safe to say,’ he wrote triumphantly ‘that there was never the smallest likelihood that they [the jury] would agree on a verdict of ‘Guilty’, and almost certain, on the word of more than one of them, that at the very start they were nine to three for an acquittal (meaning that the majority thought the prosecution was a mistaken one anyway). They remained thus divided until the last day, when the dissentient three, who thought the book obscene and thought that that was enough, were reminded by the others that they had to decide whether it was nevertheless redeemed by its literary excellence. On this, they may have felt themselves to be outmatched by the thirty-five experts, some of whom they had seen on television; and they earned themselves a niche in history by giving way. It is rather difficult to see, in the case of a man who knows himself to have no literary judgement, what else he can do; and futile to tell such jurymen,at least, [as Mr Justice Byrne did in his summing up ] that ‘you alone are the judges’ as if the opinions of the experts were a kind of side-show put on to relieve the tedium.’

The Prosecutor, Mr Griffith-Jones, had called only one witness – the policeman to whom the book had been published. As Mr Gardiner presented one after the other of the thirty five witnesses for the Defence (and threatened to call as many again who were on notice), the Prosecutor had begun by cross examining them so discourteously that he was referred to having insulted them by the Defence without being challenged by the Judge.

But, wrote Rolph, ‘gradually, more and more they [the Prosecution] accepted the evidence; gradually, more and more, they asked no questions; and then, when their turn came to call evidence, they called no evidence at all.’ (emphasis in original).

What the Prosecutor did try to do was to enter evidence into the case himself – at the last minute, in his closing speech.

***

Mr Griffith-Jones delivered his closing speech knowing that the Defence would not have the right of reply. According to the abridged (or expurgated) account published by C.H. Rolph a few months after the trial, the Prosecutor noted that ‘Upon the question of whether this book is obscene, members of the Jury, I am barred from calling any evidence because the Act restricts me to calling evidence only as to the literary and other merits of the book.’

Nevertheless Mr Griffith-Jones attempted to bring into evidence a government publication called Criminal Statistics ‘just to try and see what kind of picture it shows of cases which can be said to result from unrestrained sex.’

According to Rolph, Mr Gardiner was immediately on his feet. ‘This is a piece of evidence which has not been put to any witness; there is no opportunity for answering it at all, and it is not, in our respectful submission, proper that Counsel in a final speech should read something from a document, or still less tell a Jury the conclusions which he has formed from the document, when the document has not been put in.’ – ‘I think that is right, Mr Griffith-Jones, said the Judge inevitably.’

But after reviewing the evidence of a score of witnesses Mr Griffith-Jones suddenly said ‘Would you look at page 258. It is a passage which I have not – and I do not think anybody has – referred to during the course of cross-examination, or indeed at any time during this trial. It is that passage which describes what is called “the night of sensual passion.”

Mr Gardiner tried to get the Judge to rule that ‘Mr Griffith-Jones, again, was giving evidence – and evidence that no witness had been asked to give. ‘With the greatest respect, I have called, I think, thirty-five witnesses. This passage was not read in opening; it was not put to a single one of those witnesses; apparently it has been saved up for the final speech.’ But Mr Justice Byrne ruled against the Defence. ‘Certainly I think that you are quite entitled to deal with this passage in your final speech’, said the Judge.’

As Doris Lessing wrote in 2006 in her introduction to the new Penguin Classic edition of Lady Chatterley’s Lover, which she described as ‘the feverish third version’:

‘Among the famous love scenes there is one that was not noticed by judge or jury, by the prosecution or defence – not by anybody. In it Lawrence lauds the anal fuck as the apex of sexual experience, but it is written in such a way as not to be explicit. Well, it is known that a lot of people enjoy anal sex. In these days he would not have to write so obscurely. Apparently he is leaving behind tender-hearted fucking, and the vaginal orgasm, not to mention the poor old clitoris, for what is described is really an anal rape. Constance enjoys it and reaches her fulfilment as a woman – we have Lawrence’s word for it. But it is so funny that no one in that court saw what Lawrence was actually saying in this novel, defended as being really so moral and so wholesome.’

According to Rolph ‘This unexpected and wholly totally unheralded innuendo visibly shocked some members of the Jury.’ They can’t have read to the end of the book, since the ‘unspeakable’ acts described in the 60 or so lines on pages 258-9 (double the length of scene in the second version of the book) are central to the denouement of the story.

As J.M. Coetzee28 wrote in 1988

‘The gamekeeper Mellors not only has intercourse with the lady of the manor but sodomizes her. Furthermore, Mellors’s ex-wife spreads the news that he is a sodomist. Connie Chatterley is thus known all over the district to have had what used to be called a “crime against nature” committed upon her body—a crime whose transgressive nature was marked, in the British penal code of the 1920s, by draconian penalties, even for man and wife.’

Lessing was wrong to say that this extended description of acts that were highly illegal at the time had not been noticed by anyone in the Defence of Prosecution teams or by the Judge and his and wife sitting beside him on the Bench.

Thomas Grant reported in 2015 that the section was raised as a potential stumbling block with Gerald Gardiner and two of Penguin’s principal witnesses by Jeremy Hutchinson, a member of the Defence legal team. ‘They all dismissed Jeremy’s fears as unfounded… the important thing, as Jeremy put it, was that Griffith-Jones ‘didn’t twig it.’ ‘

Grant also reports that Harold Nicolson, well-known as bisexual who knew a thing or two about the matter, declined to be a witness for the Defence because

‘I realise that Lady Chatterley’s relations with the gamekeeper were not any more normal than those which he had imposed upon his unfortunate wife. Rubinstein {Penguin’s solicitor} failed to notice this point and was rather shocked when I mentioned it. But I imagine that those whom the Attorney General has chosen to brief him will have caught on to the point, and that in cross-examination I should have to admit that the sexual relations between the hero and the heroine were not in the least normal, and to that extent the book was ‘liable to corrupt’ within the meaning of the Act.’

Page 258 of the Director of Public Prosecutions’ copy (in the UK National Archives) of the book is emphatically marked BUGGERY. Griffith-Jones, a veteran of the Nuremberg Prosecutions team, did manage to read out the passage in full in court, with the judge’s permission.

And now we see from the Judge’s copy now at Bristol University in the UK that the judge’s wife had drawn his attention to the material, marking up pages 258 and 259 pages heavily and underlining in blue pencil the sentences ‘It was not really love… It was sensuality sharp and searing as fire, burning the soul to tinder.’

But the jury of three women and nine men found unanimously despite all that had been said in court that Lady Chatterley’s Lover was not obscene. Even though the sex acts described and celebrated by its author were felonies in both the UK and USA at the time.

Penguin sold three million copies within the year.

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A footnoted version is available from author Roff.

Image of Judge’s copy p.258

IMAGE AVAILABLE FROM ROFF

Image of Director of Public Prosecutions Copy p.258

Sue Rabbitt Roff was born in the USA, grew up in Australia and now lives in a Scottish fishing village.  Her short stories have been long and short listed for several UK prizes including Wells Festival of Literature, and the Fish Short Memoir Prize. Her recent digital literary journalism and other writing is collated on her website http:/www.rabbittreview.com.

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