A Writ for Libel

On this day one-hundred years ago, 13th May 1922, Dr. Halliday Sutherland was served with a writ for libel. As he recalled in his 1934 memoir A Time to Keep:

In 1919 I had become a Catholic. I knew the Church forbade artificial birth-control, but I had not the slightest interest in this controversy until I attended a meeting of the Medico-Legal Society of London on 7th July 1921. Professor Louise McIlroy, the distinguished gynæcologist, read a paper in which on medical and physiological grounds she condemned artificial birth control, and described one particular method as “the most harmful method of which I have had experience.”

The late Earl Russell spoke in disparagement of Catholic teaching, and I intervened to point that what the Church condemned on moral grounds was now condemned on medical grounds. Bernard Shaw was the next speaker, and that night he spoke not unkindly of the Catholic Church.

_{“I have no prejudices. The superstitious view of the Catholic Church is that a priest is something entirely different from an ordinary man. I know a great many Catholic priests, and they are men who have had a great deal of experience. They have at the back a Church which has had for many years to consider the giving of domestic advice to people. If you go to a Catholic priest and tell him that a life of sexual abstinence means a life of utter misery, he laughs. And obviously for a very good reason. If you go to Westminster Cathedral you will hear voices which sound extremely well, and very differently from the voices of the gentleman who sing at music-halls, and who would not be able to sing in that way if they did not lead a life extremely different from the Catholic priest…”}

Next week I mentioned this debate to the Editor of The Month, Father Keating, S.J., who asked me to write an article. This I did, and he returned it with the suggestion that I should expand it into a book. In August of that year I went to Strath Errick, Inverness-shire, where I began to write Birth Control, which was published by Messrs. Harding & More on 27th March 1922. Dr. Stopes knew of this book and ordered a copy on 11th February 1922. A copy was posted to her on the day of publication. On 12th April her husband, Mr H.V. Roe, wrote asking me if I would debate with his wife. I ignored the invitation, as I had no wish to advertise the movement. In The Birth Control News of 3rd May the book was reviewed. I shall not quote that review, as I have no wish to dwell on the bitter side of the controversy.

I was at my Bristol office when a local firm of solicitors telephoned, on 13^th May 1922, to say they were instructed to serve me with a writ for libel at the instance of Dr Marie Stopes. I told them to hold the writ until I found a London solicitor who would accept service, then wired two friends in London, a barrister and a journalist, to meet me in a quiet hotel in Dover Street at eight that evening. “There at eight-o-clock I saw my two friends[i] and showed them the passage in the book on which I knew the writ had been issued. The barrister read it carefully, said that the words had been defamatory, that a plea of “fair comment” would fail, and that my only defence was “Justification,” namely, that what I had written was true in substance and in fact. This is the hardest defence for any defendant in a libel action.

In Dover Street there was a quiet, old-fashioned hotel, where guests were known by their names and not by numbers. It was in that old-fashioned, but there was every comfort, and early every morning a valet removed your suit to be brushed and pressed. To stay at this hotel it was necessary to be known to the management, and when I arrived the manageress asked if I had stayed there before. I had not stayed previously, but reminded her that on several occasions I had breakfasted with Sir William Osler when he used the hotel.

There at eight o’clock I saw my two friends and showed them the passage in the book on which I knew the writ had been issued. The barrister read it carefully, said that the words were defamatory, that a plea of “fair comment” would fail, and that my only defence was “justification,” namely, that what I had written was true in substance and in fact. That is the hardest defence for any defendant in a libel action. I told him that next day I would find solicitors, but that in all probability I would have to defend myself, as what money I had saved would likely be exhausted before the case came up for trial. In that speculation I was right.

The journalist suggested that I should ask the Church to assist me. This I declined to do, although if the Church on hearing of this case decided to help me I would only be too glad to accept. In any case I knew nobody at Archbishop’s House, and as a Catholic was unknown except for this book. At that he left the room to telephone, and then returned. At ten o’clock he was called to the telephone by Monsignor Jackman, who sent this message: “Tell Dr. Sutherland that Cardinal Bourne will stand by him to the end.” Had it not been for that decision by His Eminence, I would have been ruined.

My attitude thereafter was that I was merely an instrument having the honour of representing the Catholic Church in a great public controversy.

Next day I found a firm of solicitors to whom I explained the case and my financial position. A junior counsel had to be briefed at once, because in addition to the writ the plaintiff on 11th May had taken out a summons returnable before the Masters in Chambers for an interim injunction against the book. This application was later withdrawn by her counsel in view of the fact that I had by affidavit sworn to justify the words of which she complained.

The solicitors agreed to act for me as long as they could, but without some formal guarantee they were not prepared to make themselves liable for heavy expenses. I did not blame them. To me the verbal message was sufficient to relieve my anxiety about the future, but what satisfies one man may not satisfy another, and I refused to ask for any guarantee in writing. Nevertheless, the case had begun well, and I was committed to a plea of justification. When anyone is in serious trouble he should consult solistice at once, before he is compromised himself by any independent action.

…

To bring or defend an action for libel in the English courts is an expensive luxury, and it would be well if our law could be altered to that of France, when no one can obtain damages for libel unless able to prove damage. A thirty-minute consultation with an eminent leader of the Bar, not afterwards in the case, cost me thirty guineas.

…

Six months later my savings were spent, and I owed the solicitors £150. Without money or a guarantee they were not prepared to make further disbursements. When I told Cardinal Bourne of my predicament I learned that His Eminence was trying to get together a representative committee in order that money might be collected all over the country. Some, from whom he expected help, excused themselves by saying that this would be “maintenance,” and therefore illegal. Two leading council were then asked for an opinion. It is not “maintenance” to help a man, with whose opinions are you agree, to defend himself. Maintenance is to give another person money so that he may bring an action against a third party.

A week later the postman left a registered envelope at our cottage at over, near Bristol. In the envelope was a Bank of England note for £100 and nothing else. Soon afterwards the anonymous donor invited me to come as his guest to the Annual Dinner at the Farm Street sodality of Our Lady. The dinner was at the Trocadero, and in the reception room I met Father Keating, S.J.

If godparents were needed for an action for libel, mine were Father Keating, S.J., and Professor Louise McIlroy. Father Keating scanned those who were present, and I end told me there was someone to whom he wished to speak. Some minutes later he returned, and advised me to telephone in the morning to Sir Charles Russell and ask for an appointment.

To read about Dr. Sutherland’s meeting with Sir Charles Russell and the source of the £100, click here.

[i] Dr. Sutherland did not name his friends in A Time to Keep and, based on his letter to Cardinal Bourne dated 14th May 1922, they were Reginald Dingle and Victor Rabagliati. Source: Westminster Archdiocese Archive. BO5/59 Birth Control 1921-26.