Getting it wrong, again

Nine fake “facts” about the Stopes v. Sutherland libel trial

As we approach the centenary of the Stopes v Sutherland libel trial, the fake “facts” about the trial will no doubt be reprised. Here are nine commonly-known facts about the Stopes v Sutherland libel trial that are false:

False fact #1: Stopes was put on trial

The Trial of Marie Stopes contains the transcript of the Stopes v Sutherland trial in the High Court. The title falsely gives the impression that Marie Stopes was put on trial. It was Stopes who sued Dr. Sutherland for the tort of libel so it was Sutherland, not Stopes, who was put on trial.

There is a colloquial expression that suing for defamation is “putting yourself on trial.” The idea is that, in order for the Court to determine if you have been defamed, your reputation will come under scrutiny. Placing a colloquialism in the title without indicating that it was a colloquialism has misled many to believe, falsely, that Stopes was put on trial. 

False fact #2: Stopes was accused of committing a crime.

The editor of The Trial of Marie Stopes was Muriel Box, who wrote a lengthy introduction to the book. She began: “What crime had Marie Stopes committed?” This is misleading because no one in the Stopes v. Sutherland libel trial was accused of committing a crime, because it was a civil matter, not a criminal one.

A criminal case is between the State (“the Crown”) and the accused. Proceedings are brought by a prosecutor. The formal allegation that a crime has been committed is known as a “charge”. The person who is alleged to have committed a crime is known as the “defendant” or the “accused”. The trial takes place to determine the guilt of the accused and the decision may be made by a judge and a jury. The burden of proof is on the prosecutor to prove the charge, and the standard of proof has to be “beyond reasonable doubt”. If the charges are not proven, the defendant is found “not guilty” and acquitted. If they are found guilty, they may be imprisoned or fined or have some other sanction applied by the judge.

A civil case is between two (or more) persons or “parties”. The person who initiates proceedings is known as the “plaintiff”. The formal allegation that a “tort” (French for “a wrong”) has been committed is set out in a “statement of claim”. The person who is alleged to have committed a tort is known as the “defendant”. If a trial takes place (if the parties negotiate a resolution beforehand, it will not come to trial) it will take place before a judge and, possibly, a jury. Generally speaking, the burden of proof is on the plaintiff and the standard of proof has to be “on the balance of probabilities.” If the plaintiff wins the case they might win monetary compensation for the damage they have suffered (known as “damages”) and the court might order other restitution (such as having their costs paid by the defendant) as well.

It is true that the words that were at the centre of the libel included: “Charles Bradlaugh was imprisoned for a less serious crime,” but these words were part of the defamation proceedings. Like the title The Trial of Marie Stopes, Box’s imprecise words give the false impression that Stopes was put on trial for promoting contraception.

False fact #3: Stopes won the case.

Stopes was not successful in her libel action against Dr. Sutherland. There were three court hearings:

1. In the High Court – commencing on 21 February 1923. Dr. Sutherland won.
2. In the Court of Appeal – in July 1923. Stopes won.
3. In the House of Lords – in December 1924. Dr. Sutherland won.

In first hearing in the High Court, the jury delivered its jury at around 8 PM. At this point, newspapers had to get their stories prepared for the next days news and many assumed, based on the jury’s verdict, that Stopes had won the case. While the papers were wrong, many had printed an incorrect record for posterity, and this is reflected in some of the historical accounts of the trial.

False fact #4: Stopes had no choice but to sue Sutherland.

If you read the correspondence between Stopes and her solicitor, she had been itching to sue someone for several months including Stella Browne, the New Generation magazine, Father McNabb, and others as well. Having opened the first birth-control clinic in the British Empire, Stopes found herself under attack from many quarters and that the rival Malthusian League was trying to make up for lost ground.

Sutherland’s book did not sell many copies so it was possible, and more prudent, for Stopes to have ignored it.

It is true that Stopes was entitled to sue, but to say that she “had no choice” is over-egging it – and false.

False fact #5: Had Stopes lost the case, she would have been sent to gaol.

As stated above, it was a civil trial, so a gaol sentence was not on the cards.

In his opening speech Stopes’ lawyer, Mr. Patrick Hastings, asserted that her life’s work was being put on trial. He told the jury that if they did not find in her favour, the case might be reopened in the Old Bailey (criminal court). As Sutherland’s barrister, Mr. Ernst Charles, pointed out in his opening speech the assertion was pure “stuff and nonsense.”

A few months before the Stopes v Sutherland libel trial, Rose Witcop and Guy Aldred were arraigned before a magistrate for publishing Family Limitation by Margaret Sanger. The outcome was that their publication was pulped, but they were not imprisoned, which indicated that things had changed since the trial of Annie Besant and Charles Bradlaugh 45 years before.

False fact #6: Sutherland said that Stopes was performing experiments on poor people.

Sutherland had written the words at the centre of the trial under the heading “Exposing the poor to experiment.”

Stopes asserted that this meant that she was conducting medical experiments on those who attended her clinic. Sutherland countered that he meant that it was a social experiment, namely to reduce the birth rate of one part of society and increase it at another and contrary to the laws of nature.

Of course, in a legal dispute it is likely that both sides will interpret the meaning of the words that best suit their case, so the meaning of the words was something that the Court (and the jury) decide.

In its decision, The Jury ruled that Sutherland’s words were “true in substance and in fact.”

False fact #7: Sutherland was a Roman Catholic doctor and his comments about Stopes were solely motivated by that Church’s opposition to contraceptives.

Dr Sutherland was a Roman Catholic doctor (he had been accepted into the Catholic Church in 1919). Prior to that he was nominally Church of Scotland (and, prior to that, Presbyterian) and an agnostic and even an atheist in practice.

As a specialist in tuberculosis in 1911, Dr. Sutherland was appalled by the attitude of eugenicists towards poor and working class people. Social historian Ann Farmer said that, like converts G.K. Chesterton and Laetitia Fairfield, Dr. Sutherland was attracted to the Catholic Church because of its consistent opposition to eugenics.

During World War I, Sutherland served as a doctor on an armed cruiser. On one occasion sailors were due to go on shore leave and, as ship’s doctor, Sutherland was tasked to hand each man a condom. He asked to be excused because he felt that he was required to act like a doorkeeper at a brothel and that a man who was ready to resist temptation might have his resolve weakened by the condom’s promise of consequence-free sex. He was excused.

So yes, Dr. Sutherland was opposed to artificial contraceptives on moral grounds, but his opposition to, and criticism of, Stopes was as much motivated by his abhorrence of eugenics. While the words at the centre of the Stopes v Sutherland libel trial have been quoted many times; the words in the paragraph that followed have not been. In it, Sutherland said that if children were denied to the poor as the privilege of the rich, Britain would become a “servile state” (ie. a slave state in which the poor had no societal role other than as workers).

False fact #8: The jury found in favour of Stopes, but the judge was biased and he ignored them.

The jury’s verdict was a confused and confusing one. They had been tasked to answer four questions:

1. Were the words defamatory?
2. Were the words true in substance and in fact?
3. Were they fair comment?
4. Damages, if any?

Their answer to Question 1 was “yes”. The answer to Question 2 was “yes”. The answer to 3 was “no” (but even this was unclear: when the Lord Chief Justice read the Jury’s verdict to the High Court, he handed the slip of paper back to the foreman of the jury asking him to clarify the verdict because two words had been written there, not one). The answer to question 4 was “£100”.

Once the answer to Question 2 was “yes,” Sutherland’s defence of Justification (ie. that the words complained of were true in substance and in fact) succeeded and that was the end of the matter. In other words, having decided that the answer to Question 2 was “yes”, answers to questions 3 and 4 were not required.

The Lord Chief Justice did not ignore the jury’s verdict. Once he had read it, barristers representing both the plaintiff and the defendants asked for judgement in their favour. The Lord Chief Justice allowed time for legal argument the following day to argue the case on legal grounds. If you read the court transcript, you will see that Stopes’ barrister, Sir Hugh Fraser, could not refute that once the plea of Justification had succeeded that was the end of the matter. Fraser was an acknowledged expert in defamation law and had written books on the subject.

Was the judge biased? Some biographers of Stopes say he was, pointing out that in his memoirs Serjeant Sullivan (barrister representing the co-defendant Harding & More) referred to him as a “petty tyrant” and, in relation to the Stopes v Sutherland libel trial, wrote: “The Chief was naturally strongly hostile to her and he announced his intention of stating the law involved in a plea of justification in terms that were clearly wrong.”

The memoirs also make it clear that Sullivan and Hewart had a bitter falling out. On a personal level, Sullivan felt indebted to Hewart for the kindness he had shown, but professionally the interactions between them became increasingly tense. This came to a head during a later trial in which Sullivan was defending William Cooper Hobbs. Sullivan felt that he had been placed in an impossible situation by Hewart.

If Hewart was “strongly hostile” to Stopes, he showed remarkable tolerance during the trial when Stopes interrupted proceedings on two occasions with her outbursts and, during her testimony, would not answer questions and made long speeches from the witness box.

By the time legal proceedings had been completed in the House of Lords, nine judges had ruled on the verdict in Stopes v Sutherland. Six had found in Sutherland’s favour and three had found for Stopes.

False fact #9: Soon after the trial, Professor McIlroy began prescribing the method of contraception that she had criticised in the libel trial.

It’s a great story, but the things that make it so were made up. Click here for a rebuttal in an earlier article on this website.