The Trials of Radclyffe Hall

by Diana Souhami

  The court was packed. Sheila Kaye-Smith said it was ‘an assemblage which might have been called a galaxy, for almost every author of repute was there’. ‘All London, they say, is agog with this’, Virginia Woolf wrote. Policemen at the door turned visitors away from the public gallery when it became too full. There were about forty witnesses for the defence, ‘eminent men & women of good will’, Radclyffe Hall called them. ‘We had doctors male & female, men of science, educationalists, clergy, journalists, prominent booksellers, & of course a great number of my fellow authors.’

  E. M. Forster wrote of ‘fidgeting’ as to what figure he should cut in the witness box. Virginia Woolf described Radclyffe Hall as ‘lemon yellow, tough, stringy, exacerbated’ and called The Well of Loneliness ‘the pale tepid vapid book which lay damp & slab all about the court’.

  The door at the top of the court opened at ten-thirty and in came Sir Chartres Biron. The court rose, he bowed, then took his seat under the lion and the unicorn. He looked, said Virginia Woolf, ‘something like a Harley St. specialist investigating a case. All black & white, tie pin, clean shaven, wax coloured & carved, in that light, like ivory.’ He wrote with a quill pen, sipped from a glass of water and read out points of law from calf-bound books.

  Biron had a different demeanour from when he was castigating the book some three months earlier in the lounge of the Garrick Club. Now in his judicial role, it was for him to determine impartially whether The Well of Loneliness was an obscene libel according to the law of the land. The relevant legislation was the Obscene Publications Act of 1857, which prohibited the sale of books, pictures and ‘other articles’ that ‘depraved and corrupted’ the morals of young people and shocked ‘the common feelings of decency in any well regulated mind’. Under this act, D. H. Lawrence’s novel The Rainbow in 1915 had been tried, condemned and ordered to be burned in the same court – also after one of James Douglas’s outbursts.

  The court must decide if depraved morals and shocked decency would follow from reading The Well of Loneliness. Would the book, Sir Chartres mused, if read by the weak-minded, incite them to vice? Would it ‘deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall’?

  This was the test for obscenity as defined by Lord Chief Justice Cockburn in 1868 in what became known as ‘the Hicklin Rule’. (He was judging an anti-papist pamphlet seized by the Crown. It was called The Confessional Unmasked and was by a man called Hicklin. Thereafter ‘the Hicklin Rule’ became the judicial yardstick of whether a publication was obscene.) Charles Dickens, in Our Mutual Friend, preferred the term ‘Podsnappery’:

  A certain institution in Mr Podsnap’s mind which he called ‘the young person’ may be considered to have been embodied in Miss Podsnap, his daughter. It was an inconvenient and exacting institution, requiring everything in the universe to be filed down and fitted to it. The question about everything was, would it bring a blush to the cheek of the young person? And the inconvenience of the young person, was that according to Mr Podsnap, she seemed always liable to burst into blushes when there was no need at all.

  It was perhaps difficult to grasp what test had been devised or applied to prove a correlation between reading The Well of Loneliness and the depravation and corruption of an impressionable mind. But it was clear that Sir Chartres knew filth when he read it. The ‘substantial question before me,’ he said, ‘is does this book as a whole defend unnatural practices between women?’

  That is the question to which I must direct my mind. In considering this question it is necessary to speak somewhat plainly. These unnatural offences between women which are the subject of this book involve acts which between men would be a criminal offence, and involve acts of the most horrible, unnatural and disgusting obscenity. That is a fact which no one could deny.

  The court was full of people who could and would, at least privately, deny that the acts between Stephen Gordon and her women friends were horrible, unnatural, disgusting or obscene. Nor was there a law which criminalized sex between women. A move to legislate had been defeated in 1921.

  Radclyffe Hall called it ‘the deadly campaign of silence’ but at the Garrick they knew all about Radclyffe Hall and her depraved practices, her seduction of an admiral’s wife, her blatant aping of manly ways.

  Jonathan Cape and Leopold Hill had been ‘summoned to shew cause’ why The Well of Loneliness should not be destroyed. Their lawyers wanted witnesses to be cross-examined so that they might put their case as to why the book should be allowed to circulate freely. None of these witnesses was to be heard. Biron called only one witness. He was Chief Inspector Prothero for the Crown. Radclyffe Hall wrote:

  The policeman might get up & say that my book was obscene – & he did say so in carefully studied language. But not one of those eminent men & women might say that my book was not obscene. They were treated with the grosses discourtesy, were most offensively treated by Sir Chartres Biron, who rejected group after group with a sneer. These people had come from all over England – they were quiet, learned people of high character, but they sat in that court & heard themselves sneered at – I burnt with anger on their behalf, & I marvelled that a chief magistrate like Biron could descent to so grave a laps of courtesy in his own court, to me it seemed very shocking.

  Chief Inspector Prothero, the Crown’s mutual friend, described how on 19 October 1928 he did enter 101 Great Russell Street WCI being premises in the occupation of Leopold B. Hill there to search for and seize all copies of an indecent and obscene book called The Well of Loneliness. Cross-examined by Birkett, he remembered what his masters had told him to say. Yes, he had read the book and yes, he thought its theme and treatment objectionable and obscene. It dealt with physical passion. He had experience of a great deal of obscene literature and this book dealt with the problems of an invert which was a subject which should only be treated in text books. ‘The book is indecent; it deals with an indecent subject.’ He did not agree with the opinions of the book expressed in the Times Literary Supplement or the Sunday Times.

  Birkett asked Prothero if he would be influenced by the evidence of the distinguished specialists in the court. Biron intervened. ‘I do not think the opinion of this witness is of very great importance’, he said. It was a confusing intervention. Prothero was the only witness allowed. His opinion seemed important for that reason, and because it was the same opinion as that of Joynson-Hicks, Chartres Biron and the Director of Public Prosecutions.

  Eustace Fulton had been employed by the Director of Public Prosecutions to represent the Crown. The Director sat beside him in court. Fulton then said the book dealt with an obscene theme and ‘a person who chose an obscene theme could not but write an obscene book’. By the same reasoning he might have contended that a person who chose the theme of bigotry could not but write a bigoted book. What was true from his prosecution was that those who had prejudged the case could not but come to a foregone conclusion. The whole court process was a conceptual shambles, a philosophical fraud, silly and devoid of common sense. Biron invoked convolutions of logic that would have consigned swathes of literature and art to the King’s furnace.

  Norman Birkett arrived in court late. For the defence he contended that the word obscene had been misinterpreted and that the 1857 act never intended to ‘touch a book of this character’, that there was no public advantage to prosecuting it and to do so struck ‘a great blow, not only against literature but against the public good’.

  What he did not, or could not, outright address were the attitudes of Joynson-Hicks, Sir Archibald Bodkin, Sir Chartres Biron and James Douglas. He did not talk of their homophobia, their quangos of self-interest, their twisting of the judicial system, their repressive views of women. Nor did he or anyone conjecture that sexual relationships between women might be positive, enjoyable, permissible. There was moot acceptance that they might at best be said to be a misfortune or an abnormality. At worst, they were obscene.


  Caught into posturing and mincing words, Birkett tried to reason with Biron. He suggested it would be folly to pretend that police officers were literary experts. The book had received ‘a chorus of praise from those well-qualified to speak upon matters affecting literature in general’. ‘I have here in Court distinguished people in every walk of life who desire to go into the witness box and testify that this book is not obscene and that it is a misuse of words for the prosecution to describe it as such.’

  Sir Chartres Biron did not want to hear these witnesses. He said the evidence Birkett proposed was expert witness as to whether or not the book was ‘a piece of literature’. ‘That is not the point’, he said. ‘The book may be a very fine piece of literature and yet be obscene. Art and obscenity are not disassociated. This may be a work of art. I agree it has considerable merits, but that does not prevent it from being obscene and I shall therefore not admit this expert evidence.’ Birkett protested. ‘They have read the book, and have knowledge of the reading public and in their view this book is not obscene’, he said.

  Biron allowed him to call Desmond MacCarthy, editor of Life and Letters. In the witness box MacCarthy looked, said Virginia Woolf, ‘too indifferent, too calm, too completely at his ease to be natural’. Birkett asked him whether having read the book he thought it obscene. Biron interrupted. Such evidence was inadmissible he said. It was only an expression of opinion. But it was the same question as had been put to Inspector Prothero. The difference was that Prothero gave the answer Biron wanted to hear. ‘We could not be called as experts in obscenity, only in art’, Virginia Woolf wrote.

  ‘How can the opinion of a number of people be evidence?’ Biron asked. ‘The test is whether the book is likely to deprave or corrupt those into whose hands it is likely to fall.’ Norman Birkett said that if Biron excluded expert evidence it would mean that the law could impose, through an individual magistrate, censorship of the whole field of literature so far as obscenity was concerned. ‘I want,’ said Birkett,

  to call medical testimony, I want to call a minister of religion, critics, reviewers, authors, authoresses, publishers and people from the libraries in London. I want to give evidence from every conceivable walk of life which bears upon this test as to whether the book depraves the mind of the person who reads it.

  ‘A more distinguished body of witnesses have never been called’, he said.

  He suggested there should be informed debate before books were burned. It was not a proposition Biron would pursue. The question that followed was who, if not any of those assembled in court, was in a position to say that a book was obscene and would deprave those who read it and what evidence was admissible to test such a charge. Biron had the answer. He was Mr Podsnap. He knew his daughter would blush if she read The Well of Loneliness.

  ‘I am here to decide whether this book is obscene or not’, he told Birkett. ‘I may be a very competent or incompetent magistrate, but I am going to shoulder my responsibility.’ No evidence was admissible except Chief Inspector Prothero’s and no judgement was allowed but Biron’s.

  Birkett struggled on. Authors of distinction ‘who have given their lives to this matter’ could testify that the book would not ‘tend to deprave or corrupt’ anyone who read it. ‘Oh no’, said Sir Chartres. ‘That could not be evidence under any circumstances.’ ‘Well I tender the evidence’, said Birkett. He began to sound like a doomed salesman with his eminent witnesses. Booksellers, he said, would testify that The Well of Loneliness was not obscene. ‘Booksellers are only tradesmen, they are not experts’, said Sir Chartres with offensive irrelevancy as he had precluded the validity of expertise. ‘I hope they are not present in court to hear that observation’, said Birkett. He offered social workers, a magistrate, biologists. ‘And I reject it all’, said Sir Chartres. ‘Well I tender it’, said Birkett and asked for a higher court to determine the question of the admissibility of expert witnesses.

  ‘Oh no’, said Sir Chartres. The testimony of expert witnesses as to the book’s literary or social value was irrelevant because it was opinion. ‘I don’t think people are entitled to express an opinion upon a matter which is the decision of the court’, he said.

  He was the court and therefore by some conceptual alchemy that transcended logic, his opinion transmuted into law. No matter that Arnold Bennett had confronted him in the lounge of the Garrick with James Douglas some three months previously and found both of them blustering about how the book must be banned. What Biron now pronounced was not opinion, prejudice, misogyny, homophobia, venom or crass stupidity. It was law.

  Birkett floundered. He then tried to contend that Stephen Gordon’s relationships with women, though romantic and sentimental, were ‘purely of an intellectual character’ and had nothing to do with sex. Sir Chartres called a halt. ‘I have read the book’, he said and adjourned the court for lunch.

  Virginia Woolf had sat all morning absorbing the atmosphere of the court, the stuffy formality, the ruminations on what is obscenity, what is literature, when is evidence permissible, what is the difference between the subject and the treatment. In her diary she wrote that she was ‘impressed by the reason of the law, its astuteness, its formality’. She was also mightily relieved that neither she nor anyone else had to go into the witness box. Outside the courtroom she talked to Una. They had last met at a tea party as children at Una’s parents’ house in Montpelier Square in Knightsbridge. Una’s grandfather, Sir Henry Taylor, had been a friend of Virginia Woolf’s great-aunt, Julia Margaret Cameron.

  Una had hated the morning, the public humiliation, the airing of a subject which embarrassed her, the insult to John. John was ‘flushed and tearful’ and ‘in a passion of indignation’. She went with Una, Birkett and Rubinstein to lunch at the Waldorf. It was a meal Birkett later described as the most miserable of his life. Radclyffe Hall said that her work had been ‘shamed and degraded’ and accused him of lying by his ‘blatant denial’ of sex in her book. ‘I made it abundantly clear that unless Birkett got up and retracted his words I would get up before anyone could stop me and would tell the Magistrate the truth.’

  It was no idle threat as Birkett knew. It was anathema to Radclyffe Hall to be so denied, so vilified and to have to keep quiet. ‘In the eyes of the law I am non existent’, she wrote to Havelock Ellis. This was her trial and it was of more than her book. It was of her right to be who she was. She wished for justice of a clear and open kind. She wanted to proclaim to the court that she stood by every word, was proud of it, had written it as a social duty, was herself a congenital sexual invert and a man in a woman’s body. Denied a voice of her own and counsel of her own, she felt unrepresented by those appointed to help her.

  Birkett when the court reconvened offered a stuttering capitulation. He was not, he told Chartres Biron, in a position further to contend that the book did not refer to physical relationships between women. It was the author’s wish that he should correct this misapprehension. Sir Chartres Biron gloated. Norman Birkett then pleaded that the treatment of these relationships was in good taste and of high artistic and literary merit. He made a disconsolate distinction between inversion and perversion and knew that the game was lost.

  J. B. Melville then gave defence on behalf of Leopold Hill the bookseller. He referred with apparent insouciance to Biron’s open mind and offered to assist him in understanding the author’s point of view. He said the theme itself should not be proscribed – ‘the question is the treatment of the theme’. He went over incidents in the book in detail, bleaching them of sexual significance.

  The moral is it not, is this? These people who are born with this misfortune cannot expect happiness. To those at large it says there should be toleration and understanding for those who are God’s creatures. I submit to you Sir that this book is written in a reverend spirit; that it is written in a manner which is not calculated to excite libidinous thoughts, but is an attempt to deal with a social question that exists …

  I know that you will act upon t
he principles upon which you in your judicial office must always act, and that is, that if you feel that this case is even doubtful it will not be resolved upon the side of the suppression of a work which is a thoughtful work, which has been said on all sides to be a fine literary work, which has, I am told and I believe, already taken up some two years of the life of a most distinguished writer.

  Chartres Biron was not stung by such veiled rebuke and questioning of his integrity. At two-thirty he adjourned the court. He was going to read the book again in the light of the speeches of counsel. The court would reconvene in a week’s time. ‘It will be resumed then merely for me to give judgment’, he said, so letting it be known that discussion, such as it was, was at an end.

  John had neuralgia and was depressed. She and Una talked about the case until two in the morning with Audrey Heath and Holroyd-Reece. Next day Chesterton’s estate agents surveyed the Holland Street house. A Mr Laskey bought it three days later. John and Una planned to be out by mid-January. All week John had meetings with Rubinstein, Audrey, Holroyd-Reece and Cape. Legal costs already ran into four figures. She saw Theodore Goddard about raising her fifty per cent share if, as seemed certain, the case went against them. Leonard Woolf offered to help by launching an appeal fund. Jonathan Cape sailed to America to try to save the book’s life there. Holroyd-Reece returned to Paris to print more pirate copies.

  On Friday 16 November John and Una lunched at the Savoy with Harold Rubinstein and Audrey, then went on to Bow Street where, said Una, ‘Sir Chartres Biron lied solemnly for more than one hour and condemned The Well of Loneliness to be burnt as an obscene libel.’ ‘He made of my book a gross and filthy thing which could only bring shame to its author’, Radclyffe Hall wrote.

  He degraded the work of more than two years to the leval of low paunography. I could scarcely believe my ears as I listened. I would rather be excused from repeating his words, they were too offensive & too unguarded. I say that he took an unworthy advantage of an adventageous position.