“The Trial of Marie Stopes”

Sunday, February 21, 2016 marked the 93rd Anniversary of the opening of the Stopes v. Sutherland trial in the High Court of Justice on 21st February 1923 (the “Birth Control Libel Trial”). The case arose when Dr Marie Stopes sued Dr Halliday Sutherland for libel. There were three main hearings in the dispute:

• In the High Court of Justice, Kings Bench Division, Royal Courts of Justice—Wednesday 21st February, 1923—judgement entered for the Defendants (Sutherland and his publisher, Harding and More).
• The Court of Appeal—July 20th, 1923—judgement entered for the Plaintiff (Stopes).
• Appeal in the House of Lord—November 21st, 1924—judgement entered for the Defendants (Sutherland and his publisher, Harding and More).

To mark the occasion, this article discusses a 1967 book: The Trial of Marie Stopes edited, and with an introduction written by, Muriel Box. The book, comprises two sections: the first (between pages 11 and 39) is largely the introduction (Dr Marie Stopes biography, her instigation of the sexual revolution and her work promoting birth control),  and the second (between pages 41 and 392) is a transcript of the first trial, and the judgements in the second and third.

What crime did Marie Stopes commit?

The introduction opens with a question:

What crime did Marie Stopes commit?

…and outlines the process of a criminal trial:

In any criminal trial the accused, because of some action contrary to the law, is placed in jeopardy and, if found guilty, may be punished by the loss of his freedom or, in less serious cases, by a fine.

In the fifth paragraph, Box asserts:

Marie Stopes was accused of just such a crime. She was not brought to trial by the police. Her accuser was a doctor. We shall come to him in a moment. But first we must be clear about what happened to her. Three times in less than two years, she faced the majesty of British law. She was on trial not only for her freedom, but everything she had worked for and achieved during her professional career. At the first trial she was, in effect, found guilty; on appeal she was vindicated; and when the case went to the House of Lords the verdict once more was against her.

Only five paragraphs (20 lines) into the introduction, and already there are significant flaws with Box’s account — including a crime which does not appear in any of Dr Stopes’ biographies! Here are the facts:

1. No crime had been committed. In the case that Box purported was “the trial”, no one was accused of committing a crime.
2. The trial was not a criminal case, but a civil one.
3. In a criminal trial, the Crown (or “prosecution”) asserts that the law has been broken. The party accused of breaking the law is the defendant. In a civil trial, the plaintiff asserts that the law has been broken. The party accused of breaking the law is again called the defendant. Given that the defendant is the person accused of breaking the law, it was Sutherland, and not Stopes, who was accused.
4. The title of Box’s book suggests that Marie Stopes was on trial, but she wasn’t. A less misleading title for Box’s book would have been: The Trial of Halliday Sutherland.
5. In relation to the jeopardy that arises from the trial process, the cost of running a case in the High Court was immense. While Stopes had the means to launch the action, Dr. Sutherland did not have the means to defend it. When he received the writ for libel, Sutherland faced financial ruin, regardless of the outcome of the case. Had he lost the case, damages (and possibly costs) would have been awarded against him. If Stopes failed in pressing the action, she faced the embarrassment of losing the case, and possibly of having to pay the costs of her opponents.
6. Stopes did not stand to lose her freedom by bringing the matter to Court. For her to have lost her freedom, she would have taken an additional step, such as acting in contempt of the Court, or by committing perjury. While Stopes did lie to the Court, it was not considered to be perjury (see epilogue at the foot of the page).

How was Marie Stopes on trial for her freedom?

So how did Box construct her assertion that Stopes was on trial for her freedom? Box quoted from Sutherland’s book Birth Control in which he wrote:

It is truly amazing that this monstrous campaign of birth control should be tolerated by the Home Secretary. Charles Bradlaugh was condemned to jail for a less serious crime.

and adds that Stopes could have gone to jail…

…if the words of Halliday Sutherland had been taken seriously by the Home Secretary…

So let’s get this straight: Sutherland made a public statement which, if the Home Secretary took it seriously (which he didn’t) might have led to criminal charges (which it didn’t) and, subsequently, a trial (which didn’t happen). During the trial (which didn’t happen), the accused (which she wasn’t) would have been told about the charges (which there weren’t) and given an opportunity (which there wasn’t) to defend herself (not necessary because there were no charges). If, following this sequence of events (which didn’t happen), Stopes had been unsuccessful, she might have been deprived of her freedom. Meanwhile, in the real world, Stopes exercises her legal rights to sue Sutherland for the tort of defamation, and to seek damages. In this civil case, the subject of the book, there was no possibility, whatsoever, that Stopes would have been deprived of her freedom…and yet, Box concludes that Stopes “was on trial…for her freedom”. This construction strains credulity to breaking point.

Guy Aldred and Rose Witcop jeopardise their freedom

In January 1923—one month before the Stopes v. Sutherland trial opened—two birth controllers did face criminal charges brought by the police, and had faced punishment including the possibility of jail. Guy Aldred and his wife, Rose Witcop, were convicted in West London Police Court for publishing Margaret Sanger’s Family Limitation (a pamphlet about birth control), which was judged to be obscene. They were not jailed or fined, but instead were forced to destroy copies of their publication.

This is interesting for two reasons. Firstly, because Stopes declined a request to support Aldred and Witcop and to contribute to their appeal. This refusal led Bertrand Russell (a member of her Society for Constructive Birth Control and Racial Progress) to resign. In the circumstances, it is understandable that she didn’t support them.

Secondly, because the action that Stopes then took was less understandable. She “wrote privately to the Director of Public Prosecutions (DPP), condemning Sanger’s pamphlet as ‘prurient’ and the diagrams in it as obscene.” (Rose, 1993) Dr Marie Stopes was the public face of birth control and, according to some, the instigator of the sexual revolution, yet here she was encouraging the DPP to see them in the worst light.

Box did not mention that Stopes didn’t help Aldred and Witcop who were, after all, persons who actually had been on trial for their freedom, nor that she privately contacted the government prosecutor with an opinion that was, to say the very least, unhelpful to their cause. Indeed, Box may not have known. Nevertheless, it did further undermine her “freedom fighter” narrative.

Did Marie Stopes have to sue Halliday Sutherland?

Finally, let’s deal with Box’s statement:

To defend herself against such a possibility, she took the only course open to her and deliberately put herself on trial. She did this by suing Halliday Sutherland for libel and defamation of character.

Leaving aside the nonsense that Stopes “put herself on trial”, is Box’s statement that Stopes had taken “the only course of action open to her” true?

Serjeant Sullivan K.C. (appearing for Sutherland’s co-defendant) outlined events around the publication of Birth Control in 1922, and it reveals that Box’s assertion is, yet again, wrong. Incredibly, the material that disproved her assertion resided in the second half of her book!

Sullivan said:

…before this book was published and put on the market the plaintiff in this action, sent for and received a copy, and what did she do? Presumably she read it carefully, and presumably she read most carefully all that particularly concerned herself. What was her next step? Is it to issue a writ? [Option 1A – sue early]

No.

Is it to try and stop the publication of the book? [Option 2 – injunction]

No.

She seeks to advertise the advent of the book and she writes to the author of the book, or her husband on her behalf writes to the author of the book, to have a public debate, to get up a public meeting, not for the purpose of suppressing the book, but for the purpose of advertising all that is in this book and all that is in her books, and debating the matter in public. [Option 3 – advertise and debate] When that failed and she could not secure the pleasure of a public debate, with the confidence she possesses in her own advocacy, she then took a second step, again to advertise this very publication, because she reviewed it or caused it to be reviewed in her paper. [Option 4 – advertise and decry]

The review is a grossly offensive one. You remember that she sneered at a gentleman, who at the age of 40, appears to have achieved some distinction in his profession—sneered at him as being an author who could only impose his views on persons more ignorant than himself; and spoke of his book as being so full of lies that they had not the time and the space to reveal them.

That is her method of commenting on this publication. But I call your attention to it because you see that also preceded the Writ. It was only when she failed to provoke public controversy on the part of Dr. Sutherland that she had the recourse to the forms of procedure of the Courts of Justice. [Option 1B – sue late]

I most respectfully submit to you that it was not for the purpose of redressing any wrong that had been done to her; for up to that time she had not complained that any wrong had been done to her. It was not for the purpose of  preventing the circulation of a libel, because if that was a she was inviting its circulation of a libel provided she could provoke public controversy by it. [Box, page 320-1]

Sullivan did not mention that another option open to Stopes was to have ignored his book which, after all, had sold only a few hundred copies. [Option 5 – ignore] Box’s assertion that Stopes took “the only course of action open to her” shows that, yet again, her introduction was at variance with facts.

The battle to prevent the “Servile State”

A better explanation of Halliday Sutherland and Marie Stopes and their dispute would have recognised that Sutherland criticised Dr Marie Stopes’ birth control clinic because it had negative eugenic aims. In setting up the Society to run the clinic, Stopes and her husband:

described as one of the “bedrock” tenets of the organisation the belief “that the haphazard production of children by ignorant, coerced, or diseased mothers is profoundly detrimental to the race.” Another was the conviction that “many men and women…should be prevented from procreating children at all, because of their individual ill health, or the diseased and degenerate nature of the offspring that they may be expected to produce.” At the same time, the SCBC regretted “the relatively small families of those best fitted to care for children.” In accordance with its motto, “Babies in the right place,” it was as much an aim of the SCBC “to secure conception” to those couples, as it was “to furnish security from conception to those who are racially diseased, already overburdened with children, or in any specific way unfitted for parenthood.” [Source: Eugenics and the Birth Control Movement by Richard A. Soloway. From Marie Stopes Eugenics and the English Birth Control Movement edited by Robert A. Peel, The Galton Institute 1996. Page 61]

Note that the source of this assertion is The Galton Institute (formerly the Eugenics Society, formerly the Eugenics Education Society), an institution Stopes joined in 1912 and of which she became a Life-Fellow in 1921.

Note too that British eugenics was based on social class and that the urban poor—the bottom of the heap—were seen as “racially diseased”. Eugenists believed that letting such people breed in large numbers relative to their social betters would lead to “race suicide”. Britain, they said, had already lost its racial vigour, as was evident from the large numbers of men who had to be turned away from army recruitment centres as unfit for service in the First World War (the so-called “C.3s”).

Eugenists proposed various schemes to prevent the “racially diseased” from procreating and to ensure that their genes would be bred out from the “race”. Schemes included state control of procreation and financial incentives to encourage people from “better stocks” to have larger families. Stopes herself had lobbied MPs to pass legislation compulsorily sterilize unsuitable types and her language to describe the targets of her campaign was very broad. Her signature innovation was to use contraceptive methods to achieve the “racial purification” by making these readily available to poor and working class women.

On the second day of the trial she was asked: “Is the reduction of the birth rate any part at all of your campaign?” She replied:

Not reduction in the total birth rate, but reduction of the birth rate at the wrong part and increase of the birth rate at the right end of the social scale.

Halliday Sutherland was acquainted with the “wrong part…of the social scale” through his work as a doctor at the St Marylebone Anti-Tuberculosis Dispensary. He thought that eugenists were scientifically wrong in attributing tuberculosis mainly to hereditary causes, and morally wrong in their proposals to “cure” the disease by breeding out the “unfit”.

He was appalled by the plans that eugenists had in store  for their fellow Britons. In Birth Control he envisaged a Britain in which children:

…are to be denied to the poor as a privilege of the rich.

This might seem fantastical to us today. In his times, it was a fashionable cause enthusiastically supported by powerful and influential people who had concrete plans to bring it about. Sutherland conjectured that in such a place:

…it would be very easy to exploit the women of the poorer classes, [because] if women have no young children why should it they be exempt from the economic pressure that is applied to men?

He concluded:

The English poor have already lost even the meaning of the word “property,” and if the birth controllers had their way the meaning of the word “home” would soon follow. The aim of birth control is generally masked by falsehood, but the urging of this policy on the poor points unmistakably to the Servile State.

Sutherland attacked Marie Stopes’ birth control clinic, not because he wanted to deprive her of her freedom, as Box so melodramatically put it, but to preserve the freedoms of Britons at the bottom-end of the social scale.

Conclusion

Box’s book was an important publication because it made the Court transcript of the Stopes v. Sutherland libel trial readily available. The introduction is spin masquerading as history—an overcooked, false victim-narrative which bears no relation whatsoever to the facts.

By all means, celebrate the achievements of Marie Stopes, if that is what you want to do. Do not do it, however, by falsely demeaning a brave and honourable man who stood up for the urban poor against the eugenic ideas of the British Establishment and intelligentsia. Do not do it by demeaning his Church, which was one of the few (the only?) institutions that had consistently and continually opposed eugenics.

Had this person, and others like him, or this institution not opposed eugenics in the early Twentieth Century, what sort of country do you suppose you would be living in today?—presuming, of course, that you would be living in it.

Epilogue: Marie Stopes lies to the Court

Asserting that a person lied to a Court is a serious matter, particularly when the participants are not alive to defend themselves. Here is the basis for the assertion that Stopes lied to the Court.

Dr Norman Haire visited Stopes clinic in February 1921. He admired her work. During his visit, she spoke to him about the gold pin.

On 5th June 1921, Stopes wrote to Haire “to ask if he would take on two or three cases which he would ‘watch carefully'”.  Haire had made his own inquiries about the Gold Pin and he had learned that it was “unreliable”, caused abortions and “irregular and profuse menstruation and sometimes inflammation of the cervix and the body of the uterus”.

On 6th June 1921, he wrote to Stopes to tell her that “since the pin ‘sometimes, at least, acts as an abortifacient, I cannot try it without risking my professional reputation and rendering myself liable to criminal prosecution’.”

During the cross-examination of Stopes by Mr Charles K.C. on February 22nd 1923, this exchange took place:

Q. Did Dr. Haire tell you that he would not use this gold pin because it simply produced an earlier abortion?—A. On the contrary, Dr. Haire came to my Clinic personally and asked me to send him subjects for the gold pin.

Q. There will be a conflict of evidence about that.

In her book Marie Stopes and the Sexual Revolution, June Rose wrote that “Haire was annoyed by her claiming that he had canvassed for patients”. She wrote that “although Haire had visited Marie’s Clinic at his own instigation, she had lied to the court.” (Rose, page 168) and that her “assumption of infallibility had led her to reconstruct the truth” (page 169).

Bibliography:

The Trial of Marie Stopes. (M. Box, Ed.) London: Femina Books 1967.

Marie Stopes and the Sexual Revolution by June Rose Faber and Faber Limited 1993. Page 162, 168 and 169. [Dr Marie Stopes biography]

Rose Witcop 1890-1932, The Margaret Sanger Papers at http://wyatt.elasticbeanstalk.com/mep/MS/xml/bwitcopr.html (viewed 17 February 2016).

Birth Control: A Statement of Christian Doctrine Against the Neo-Malthusians by Halliday Sutherland, Harding and More 1922.

©Mark Sutherland 2016