"A born writer, especially a born story-teller. Dr. Sutherland, who is distinguished in medicine, is an amateur in the sense that he only writes when he has nothing better to do. But when he does, it could hardly be done better." G.K. Chesterton.
The third day began with the witnesses for the plaintiff, before switching to witnesses for the defence. Sir William Bayliss was the best for Stopes: his prestige was well-known to all in the Court and his testimony was calm and assertive.
While the next witness, Dr. Harold Chapple, avoided making any damaging admissions, his evasive answers undermined his credibility. At one point Mr Ernst Charles K.C. pointed out his statements were identical to those of other witnesses and suggested that the views Chapple expressed were not his own.
Dr. Meredith Young was the next witness for Stopes. Young was a competent witness, but her admission that the Gold Pin was an abortifacient was damaging to Stopes’ case.
Dr. Jane Hawthorne followed Young. In accordance with Stopes’ express wishes, she managed to conceal her practical experience of the Gold Pin and the commercial dealings between Stopes and Lambert (a manufacturer of contraceptive devices). Hawthorne asserted that the cervical cap (the device supplied at the Mothers’ Clinic) was the best method, but then undermined this assertion when she admitted that the cap moved precisely at the time it needed to stay in place.
Dr. George Jones followed Hawthorne. His testimony was disastrous. His bold, sweeping statements were, at times, ridiculous and it enabled barristers for the defence to get him to contradict himself. It also provided opportunities for them to read out damaging passages from Stopes’ 1920 book Wise Parenthood.
Mr Ernst Charles K.C. made the opening speech for the defence.
Following that, the first witness for the defence, Professor Louise McIlroy, appeared. McIlroy was the first woman professor of gynaecology at London University and she embodied all of the desirable qualities of a witness in this trial. Mr Patrick Hastings K.C.’s cross-examination of McIlroy fell over at the very start when he asserted that she had not actually said the libelous words Sutherland had attributed to her in Birth Control. This was quickly shown to be incorrect and, even though the gaffe was not his fault, Hastings graciously admitted responsibility for it.
Under cross-examination, Professor McIlroy played a game of “cat and mouse” with Hastings. He presented case histories and asked her what she would have done in the circumstances, likely setting her up to admit that the course of action she would have taken was identical to what Stopes would have done in the same circumstances. McIlroy was having none of it: she said she would do what she judged to be correct for the particular case she had in front of her. When Hastings suggested that a cervical cap was the best remedy when a husband put excessive demands upon his wife, McIlroy said that she would arrange to see husband and wife to discuss the issue. Asked if she had practical experience of the cervical cap, McIlroy admitted that she did not. While this was in the Stopes’ favour, McIlroy said her statement was based on the occlusion of the womb, not of the particular device occluding the womb.
While the impact that legal argument and testimony had on the twelve men of the jury was not recorded, Stopes’ realisation that she might lose the case was. In a letter to her solicitor the following day, she included “… suggestions which I want you particularly to hand on to both Mr. Patrick Hastings and Sir Hugh Fraser for the Cross-examination… Do, for God’s sake get Mr Patrick Hastings to study them and to use all the technical questions especially. If he does not, particularly on that question of the Gold Pin use absolutely all I have put in we shall simply lose the case.”
Both sides stood down until 10:30 am on Tuesday, 27th February 1923 when the battle would resume.
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