Stopes v Sutherland was a libel action brought by Dr Marie Stopes against Dr Halliday Sutherland and his publishers over passages in his 1922 book Birth Control: A Statement of Christian Doctrine Against the Neo-Malthusians. The case opened in the High Court on 21 February 1923 and concluded in November 1924, when the House of Lords found in Sutherland’s favour. The proceedings exposed the eugenic assumptions underlying elements of the early birth-control movement and remain relevant to modern discussions of libel, medical ethics, and freedom of criticism.

Timeline of the Stopes v Sutherland Case (1923 – 1924)

• 17 March 1921 — Marie Stopes and her husband Humphrey Roe open the Mothers’ Clinic at 61 Marlborough Road, Holloway.
• 7 July 1921 — Dr Halliday Sutherland attends a meeting of the Medico-Legal Society in London. He listens to Professor Louise McIlroy presented a paper on Some Factors in the Control of the Birth Rate.
• 27 March 1922 — Dr Sutherland’s book Birth Control: A Statement of Christian Doctrine Against the Neo-Malthusians published by Harding & More. It sells 811 copies.
• 4 May 1922 — Stopes writes to her solicitor Braby & Waller to complain about Birth Control and instructs him to “… act immediately without further hesitation; to act effectively and to strike as hard a blow as the law will permit.”
• 13 May 1922 — Writs are served on Dr Sutherland and on Vincent Waring of Harding & More
• June 1922 to February 1923 — “Directions” and “Orders” hearings between the parties.
• 21 February 1923 — Stopes v. Sutherland opens in the High Court, London before Lord Chief Justice Hewart.
• 1 March 1923 — The Lord Chief Justice decides the case in favour of the co-defendants Dr Sutherland and Harding & More. High Court case closes.
• March to June 1923 — Stopes appeals the decision of the High Court to the Court of Appeal.
• 20 July 1923 — The Court of Appeal orders that the decision of the High Court be reversed and that Stopes be awarded £100.
• July 1923 to November 1924 — Sutherland appeals to the House of Lords.
• 21 November 1924 — The House of Lords overturns the decision of the Court of Appeal appeal. Stopes is ordered to repay the £100.

Background to the trial

Malthusianism, Eugenics in Britain 1900-1914

In the early 20th century, Britain was preoccupied by the population question. The numbers of Britons had doubled over the previous century swelling Britain’s large industrial cities, particularly in the slums. The population question related not only how to cope with the quantity of people, but also the calibre and characteristics of those people.

Malthusianism

The ideas of Thomas Robert Malthus (1766-1834) suggested that a population would naturally increase beyond the capacity of the land to support it. Unless there was a means to limit the increase, people would compete for scarce resources leading to famine, war and disease. While Malthus himself did not condone the use of contraceptives, many of followers did (the so-called neo-Malthusians). The Malthusian League (motto: “non quantitas sed qualitas”) was established in 1877.

Eugenics

At the turn of the century, Francis Galton pondered the population question. Galton was familiar with the techniques of selective breeding used by farmers used to improve their livestock and wondered:

“Could not the race of men be similarly improved? Could not the undesirables be got rid of and the desirables multiplied?”

He created a new area of scientific study and coined a name for it – “eugenics” – cased on the Greek words for “good” and “Breeding” (Galton, F. (1904). Eugenics: Its Definition, Scope and Aims. The American Journal of Sociology (Volume X, Number 1)) He defined it as “the science which deals with all influences that improve the inborn qualities of a race; also with those that develop them to the utmost advantage.” In 1907, the Eugenics Education Society was founded by Sybil Gotto.

Eugenics was an idea whose time had come. In 1911 the Galton Chair of Eugenics was established at London University and Galton’s protege and biographer, Karl Pearson, was appointed as the inaugural professor. When the Mental Deficiency Act was passed in 1913, the Eugenics Review boasted that it was the first piece of social legislation in which the influence of heredity had been practically applied.

Marie Stopes joined the Eugenics Education Society in 1912 and became a fellow in 1921.

The differential birth rate

Eugenists in particular worried about the “differential birth rate”. This meant that while the birth rate in Britain was falling overall, the fall was more pronounced among the well-to-do than among the lower classes. If (as eugenists suspected) heredity had the greatest influence in creating a person, Britain was doomed because “… [one-] half of each succeeding generation was produced by no more than a quarter of its married predecessor, and that the prolific quarter was disproportionately located among the dregs of society.” [Kevles, D. J. (2004). In The Name of Eugenics: Genetics and the Uses of Human Heredity (5^th Printing ed.). Cambridge, Massachusetts: Harvard University Press. Page 74.] Eugenists spoke gloomily of “degeneration”, “national deterioration” and even “race suicide”.

The restriction of “undesirables”

In 1917, the ex-president of the British Medical Association, Sir James Barr made a speech on The Future of the Medical Profession. He said that unless there was a restriction on the of marriage of “undesirables”, the elimination of tuberculosis from Britain would be “nothing short of a national calamity” because it formed “a rough, but on the whole very serviceable check, on the survival and propagation of the unfit.”

Marie Stopes and Humphrey Roe opened the Mothers’ Clinic in Holloway on 17 March 1921 and later in the year established The Society for Constructive Birth Control and Racial Progess (C.B.C.) to support the clinic. The aims of the society were summarised as follows:

“In short, we are profoundly and fundamentally a pro-baby organisation, in favour of producing the largest possible of healthy, happy children without detriment to the mother, and with the minimum wastage of infants by premature deaths. In this connection our motto has been “Babies in the right place,” and it is just as much the aim of Constructive Birth Control to secure conception to those married people who are healthy, childless, and desire children, as it is to furnish security from conception to those who are racially diseased, already overburdened with children, or in any specific way unfitted for parenthood.”

Note: “racially diseased” referred to diseases of heredity. Mainstream eugenicists believed that Concsumption (tuberculosis of the lungs) was an inherited condition.

While it was not the restriction of the marriage of undesirables that Barr sought, it would mean that they would be having fewer children. Barr wrote to congratulate Stopes:

“You and your husband have inaugurated a great movement which I hope will eventually get rid of our C3 population and exterminate poverty. The only way to raise an A1 population is to breed them.”

Barr became a vice president of Stopes’ Society for Constructive Birth Control and Racial Progress (or C.B.C.) shortly afterwards.

Immediate causes

On 7 July 1921, Professor Ann Louise McIlroy, the first woman professor of gynecology at London University, spoke on Some Factors on the Control of the Birth Rate at the Medico-Legal Society in London. Dr Sutherland was in the audience. In the question and answer session that followed the talk, MacIlroy said: “The most harmful method of which I have had experience is the use of the pessary. It does not remain in place. It can pass back natural discharges.”

Following the talk Dr Sutherland spoke to McIlroy and she confirmed that the pessary to which she referred was the cervical cap used at the Mothers’ Clinic. Subsequently, he quoted her in his book Birth Control: A Statement of Christian Doctrine Against the Neo_Malthusians published in March 1922.

Page 101 and 102 of the book contained the following passage under the heading Exposing the Poor to Experiment:

“Secondly, the ordinary decent instincts of the poor are against these practices and indeed they have used them less than any other class. But, owing to their poverty, lack of learning, and helplessness, the poor are the natural victims of those who seek to make experiments on their fellows. In the midst of a London slum a woman, who is a doctor of German philosophy (Munich), has opened a Birth Control Clinic, where working women are instructed in a method of contraception described by Professor McIlroy as ‘The most harmful method of which I have had experience’. When we remember that millions are being spent by the Ministry of Health and by Local Authorities — on pure milk for necessitous expectant and nursing mothers, on Maternity Clinics to guard the health of mothers before and after childbirth, for the provision of skilled midwives, and on Infant Welfare Centres — 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.”

Stopes instructed her solicitor to issue a writ for defamation (libel) which was served in May 1922.

Stopes’ Statement of Claim stated that: “By the said words the Defendants meant and were understood to mean that the Plaintiff was taking advantage of the ignorance of the poor to subject them to experiments of a most harmful and dangerous nature; that she was guilty of disgraceful illegal and cruel practices for which she should be punished by a term of imprisonment and that she was a person with whom no decent or respectable person should associate.” [Source: Stopes’ Statement of Claim].

The Trial Overview

The case opened in the High Court on 21 February 1923. All sides were represented by leading counsel. Stopes was represented by Patrick Hastings KC, Sutherland’s by Ernst Charles KC and Harding & More by Serjeant Alexander Sullivan KC.

Eminent medical figures gave evidence for both sides, including Sir James Barr, Sir William Arbuthnot Lane and Sir William Bayliss for Stopes and Professor Louise McIlroy, Dame Mary Scharlieb and Sir Maurice Abbott Anderson for the defendants.

Stopes chose to appear in the witness box on her own behalf. It was an unusual decision, because the burden of proof was on the defendants to prove that the words were true and/or were fair comment (of which more below). In short, it was a brave but unnecessary risk.

In his opening speech on the first day, Sir Patrick Hastings KC portrayed Stopes as a private citizen who was running a charity at her own expense to assist poorer women. In this light, Dr Sutherland’s attack was portrayed as a gross attack on a private individual. Yet when Stopes appeared in the witness box on the second day, she revealed that her agenda aimed to address the differential birth rate:

“The object of the Society is, if possible, to counteract the steady evil which has been growing for a good many years of the reduction of the birth rate just on the part of the thrifty, wise, well-contented, and the generally sound members of our community, and the reckless breeding from the C3 end, and the semi-feebleminded, the careless, who are proportionately increasing in our community because of the slowing of the birth rate at the other end of the social scale. Statistics show that every year the birth rate from the worst end of our community is increasing in proportion to the birth rate at the better end, and it was in order to try to right that grave social danger that I embarked upon this work.”

Other key exchanges took place when Professor Louise McIlroy and Dr Sutherland appeared in the witness box.

Perhaps the most damaging evidence to Stopes’ case related to a device called the “Gold Pin” or “Gold Spring”. Stopes had endorsed this device as a practical alternative to sterelisation of those she considered unsuitable for parenthood. Witnesses for both sides differed as to the impact of the Pin: some said it would make conception more likely, others that it would prevent conception, and yet others, that it would not prevent conception but that if conception occurred and the Pin were left in place, it would act as an abortifacient. The uncertainty of the outcome was used by the defence to assert it was an experiment.

Key Legal Arguments

Sutherland’s Defence rebutted the assertions of Stopes’ Statement of Claim. It asserted that his words “in their natural meaning are fair and true in substance and in fact” (the “Justification” defence). It countered that his words did not (and could not) bear the meanings asserted in the Statement of Claim.

An alternative defence was made, namely that his words consisted of expressions of opinion which were fair comment and were made without malice (the “Fair Comment” defence). Further, if there had been damage to the Plaintiff’s reputation, it had arisen from her publications and from her own conduct.

The meaning of the statements was something for the parties to argue in Court and for the Court to decide.

The trial was heard before a jury. Following consultation with barristers for all parties, the Lord Chief Justice decided that the Jury’s decision would be communicated by their answers to four questions:

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

These questions framed the central legal issues in the case: the meaning of truth, the limits of criticism, and the boundary between public debate and personal attack.

The Jury answered the questions as follows:

1. Were the words complained of defamatory of the plaintiff? YES
2. Were they true in substance and in fact? YES
3. Were they fair comment? NO
4. Damages, if any.” £100

On delivery of the Jury’s verdict at the end of the fifth day, barristers for both the plaintiff and the defendants asked for judgement in their favour. It was late in the day (past eight o’clock), so the Lord Chief Justice told the parties to return in the morning to present their legal arguments.

Outcome & Verdict

The following morning, Stopes’ barrister Sir Hugh Fraser argued that the case should be awarded to the plaintiff because the Jury had indicated that Sutherland’s words were not “fair comment” and that damages of £100 should be awarded to Stopes.

Mr Ernst Charles KC (for the defence) argued that the case should be awarded to Sutherland on the grounds that once the Jury had decided that his words were “true in substance and in fact” that was the end of the matter. In other words, the Jury’s answers to questions three and four were irrelevant. Given there was legal precedent to support his claim, the Lord Chief Justice decided in favour of the defendants.

Stopes appealed, and in July 1923 the Court of Appeal reversed the decision (two-to-one), awarding her the £100. Sutherland then appealed to the House of Lords, which in November 1924 restored the original verdict in his favour (four-to-one), ordering Stopes to repay the damages and to pay costs.

The final judgement affirmed that where allegedly defamatory words are shown to be true, the defence of justification succeeds. The case thus stands as an important precedent in British libel law that is still cited today.

The case also drew attention to the ethical and social questions surrounding Stopes birth-control campaign with its embedded eugenic agenda. Following the case, Stopes appealed for funds to help her cover her legal costs.

Primary Sources & Documents

Some of the primary sources and documents relating to the trial by are also available on this website.

Legacy of the Trial (long-term effects, relevance today)

Beyond its legal significance, the case illuminated the contested moral and scientific landscape of the early twentieth century. Stopes had framed birth-control as a path to social improvement, but her ideology included eugenic ambitions aimed at influencing who should, and should not, reproduce. The courtroom testimony made these aims visible to the wider public.

Sutherland, by contrast, argued that poverty and disease were rooted not in heredity alone but in social and environmental conditions, and that reform should focus on improving the lives of the poor rather than restricting their families. His stance anticipated later shifts in public-health thinking away from eugenics and towards social medicine.

Today, the trial remains a key episode in the history of reproductive politics, medical ethics, and freedom of criticism in public debate. It continues to resonate in discussions of informed consent, class bias in healthcare, and the legacy of eugenic thinking in policy and practice.

Conclusion

The 1923 libel case between Marie Stopes and Halliday Sutherland was not merely a legal contest, but a decisive moment in the history of reproductive rights and social medicine. It exposed competing visions of how society should respond to poverty, health, and family life, and it placed the advocates of birth-control under public scrutiny.

Frequently Asked Questions

The following questions and answers address common misunderstandings about the 1923–1924 libel case Stopes v Sutherland. They summarise the key facts and outcomes based on contemporary court records and published sources.

Q1. Did Marie Stopes win her case against Halliday Sutherland?

A1. No. Dr Sutherland and his publishers first won in the High Court in 1923. The Court of Appeal later reversed the verdict and awarded Stopes £100 damages, but in November 1924 the House of Lords restored the High Court decision, finding for Sutherland and awarding him costs.

Q2. Was the case mainly about religion?

Q2. No. The action arose from Sutherland’s criticism of the eugenic aims behind Stopes’s birth-control clinic. Although he wrote from a Christian standpoint, his objections pre-dated his conversion to Catholicism and centred on medical and ethical issues surrounding eugenics and public health.

Q3. Why did Marie Stopes sue Dr Sutherland?

Q3. Stopes alleged that passages in Sutherland’s 1922 book Birth Control: A Statement of Christian Doctrine Against the Neo-Malthusians defamed her and her clinic by suggesting that she was performing experiments on poor people. She claimed this statement was false and damaging to her reputation.

Q4. What did the courts decide?

Q4. The High Court jury found that the words complained of were true in substance and fact. The Court of Appeal ruled otherwise and awarded nominal damages to Stopes. The House of Lords then reversed that judgment, confirming that Sutherland’s statements were fair comment on a matter of public interest.

Q5. What wider issues did the case raise?

Q5. The litigation highlighted early-twentieth-century conflicts over eugenics, birth control, and freedom of speech. It tested how far a writer could criticise scientific or social movements that touched on class, heredity, and morality.

Q6. Why does the case still matter today?

Q6. The trial illustrates how debates about poverty, public health, and reproductive rights were shaped by eugenic ideas. It remains a key episode in the history of medical ethics, censorship, and social policy in Britain.

Q7. Where can I read the original material?

Q7. Primary sources—including extracts from Sutherland’s Birth Control (1922), court judgments, and related correspondence—are available on this site under Primary Sources and Documents.

Related pages

Dr Sutherland’s wider opposition to the eugenics movement is explored in Eugenics in Context, which traces the ideas and policies behind the debate that culminated in this trial.
For original materials, see Primary Sources and Documents, including key writings and court evidence.