(Left) Marie Stopes in her laboratory in 1904 (image via Wikipedia); (right) Dr. Halliday Sutherland in 1910 (image via hallidaysutherland.com).
This is the second and final article on the Stopes v. Sutherland
libel trial of 1923. The first
discussed the background of the case, including UK birth-control
advocate Marie Stopes’ enthusiastic interest in eugenics and Dr. Halliday
Sutherland’s opposition to that movement, based both on his Catholic faith and
on his work with tuberculosis, a disease seen by many eugenists of the day as a
“friend of the race” because it was a natural check on the “unfit.” When
Sutherland published his book Birth
in 1922, he accused Stopes’ of using her work distributing
contraceptives among poor women as a eugenic experiment targeting society’s
most vulnerable. In response, Stopes sued Sutherland for libel.
The court battle
faced huge obstacles. His first problem was money: he quickly ran
out of it and planned to defend himself. However, a friend approached Cardinal
Bourne of Westminster and shortly afterward Sutherland received a message that
Bourne would “stand by him to the end” and assist him with legal costs.
Sutherland’s second problem
was that his defense of “justification” would require him to demonstrate that, while the statements he
had made about Marie Stopes were defamatory, they were true in substance and in
Stopes engaged Mr. Patrick
Hastings, KC, who planned the route to a win for the plaintiff. In Hastings’ opening
speech, Stopes was depicted as an eminent scientist providing contraceptives
and advice to help her overburdened and poorer sisters. He did not mention her
eugenic agenda. Sutherland’s claims that she was experimenting on the poor
would be exposed for what they were, Hastings said: a violent attack on dignity
of this charitable woman’s good works and on those who did not agree with the
tenets of the Catholic faith.
Both sides called witnesses
who were, as Hastings pointed out in his opening speech, “known throughout the
length and breadth of the civilized world.” The eminence of the witnesses on
one side cancelled out those on the other.
defense would counter
that the devices advocated by Stopes were unreliable and dangerous, and that her
work with the poor amounted to experimenting on the vulnerable. Her publisher
had been accused of publishing an obscene work, so they would portray Stopes’
books as being likely to corrupt young and impressionable people.
and why did the defense win? In my opinion, there were four main factors,
namely, the testimony of Stopes herself, the testimony of Professor McIlroy,
the role played by the “gold pin,” and finally, the testimony of Dr. Norman
The testimony of Stopes
testimony was damaging to her own case for a number of reasons. The first was
that she was not required to enter the witness box; it was the job of the defense
to justify the defamatory statements, not for the plaintiff to rebut them. Her
testimony added unnecessary risks to her own side.
she was in the witness box, Stopes volunteered statements which undermined her
counsel’s arguments. For instance, in his opening speech, Hastings had not
mentioned eugenics, yet in the examination by Hastings, Stopes brought her eugenic
agenda to the fore:
The object of the Society [for Constructive
Birth Control and Racial Progress] 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 C.3
end [“C.3” referred
to those who were rejected as being physically unfit for military service],
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.
There was a chance, of course, that members
of the jury might have had eugenic sympathies, but statements such as these
from Stopes did increase the chance that the defense would succeed in its
argument that Stopes’ work was a social experiment with eugenic goals.
cross-examined, Stopes “took on” the defense counsel rather than focus on
answering questions. When asked about why Dr. Norman Haire (a Malthusian
doctor) had visited her clinic, she told the court that he had been seeking
referral patients with whom he could fit the “gold pin” contraceptive device.
Seeking referrals in this manner was against the code of conduct of doctors,
and Haire denied he’d done so. The result was that Haire, who should have been
an ideological ally of Stopes, became a hostile witness when it came time for
when cross-examined by the defense, Stopes lost her temper. That she did so was
entirely understandable; she had been in the witness box for several hours and was
asked a rather unclear question about viewing children as a curse in marriage. But
petulantly asking if this included “an imbecile or monster or degenerate or
diseased child” ultimately undermined her lawyer’s effort to depict Stopes’
work as a quiet, charitable endeavor above any criticism.
By contrast, when it came time for Sutherland
to testify, he gave straightforward answers. He later wrote that he had prayed
to St. Thomas More, Lord Chancellor of England, who had been executed in 1535
because he refused to renounce the Catholic faith.
When under questioning from his lawyer, Mr.
Ernest Charles, KC, Sutherland described Stopes’ social experimentation as: “The indiscriminate
distribution of knowledge of contraceptives amongst the poor for the purpose of
attempting to redistribute the birth rate by means of artificial contraceptives
and contrary to the law of nature.”
cross-examined by Hastings, Sutherland’s continued his plain words, without
embellishment or speechifying. Hastings tried to provoke him, suggesting that
his book was “a violent attack upon people who believe in the Protestant faith
and are not Catholics.”
The Lord Chief Justice,
sensitive to the sectarian divisions of Britain at the time, intervened, saying
that the “likes and dislikes about Protestantism and Roman Catholicism are not
relevant to any issue in the case.”
In his testimony, Sutherland
had focused on his role in the case, and left the legal argument to his lawyers.
No doubt the period he spent in the witness box was an ordeal, but he had
answered truthfully and had not damaged his case.
evidence of Professor McIlroy
The testimony of Professor Louise McIlroy was very damaging to Stopes. McIlroy
was, like Stopes, a woman. Like Sutherland, she was a Catholic doctor. She
disagreed with what she considered to be the Church’s out-of-date position on
birth control, and dispensed contraceptives free of charge at the Royal Free
Hospital for Women. McIlroy was the first female professor of gynecology at the Royal
Free Hospital for Women, and she was in many ways ahead of her time. For
instance, when appropriate, she would arrange for wife and husband to attend
appointments together so that she could advise both spouses on contraceptive
methods. She also advocated paid maternity leave for women.
McIlroy was quoted in Sutherland’s book as describing a contraceptive
device used in Stopes’ clinic as “the most harmful method of which I have had
experience.” The achievements and expertise she brought to her testimony in
support of Sutherland’s case would prove highly effective for the defense.
“gold pin” and the testimony of Dr. Norman Haire
The “gold pin” was an early form of what is now
known as “the coil,” a pessary inserted into the uterus for contraceptive
Stopes was interested in the pin when she
heard that it was effective contraceptive. In Wise Parenthood
she recommended its use to effectively sterilize “the lowest and most
negligent strata of society” because, once in place, it could not removed
without expert assistance. For Stopes, this was its “greatest possible racial
and social value.”
was no evidence that Stopes had used the gold pin at her clinic, but she did
send two patients to Dr. Norman Haire to be fitted with the device, despite his
having told her that it was dangerous. Throughout the case,
Sutherland’s counsel, Mr. Charles, asked each witness what the gold pin was
for. Some said that it would enhance conception. Others, that it would induce
an abortion. The divided opinions of the medical profession enabled Charles to
persuasively argue that the device was uncertain and therefore experimental.
Haire, displeased by Stopes’ assertion during her testimony that he had trawled
her clinic for new patients to be fitted with the gold pin, testified under
subpoena for the defense on February 27, 1923. His evidence against Stopes was
damning. He said that the contraceptive device used by her clinic was “utterly
unreliable,” that women could not fit it properly, and that, when he had fitted
it in women, it had failed 24 times in 29 cases.
On February 28, 1923, the penultimate day of
the trial, the jury was given four questions to answer. They retired at 4 pm and returned at 7:55 pm.
The foreman of the jury passed a piece of paper to the judge. On it was written
The Lord Chief Justice read from the paper.
“(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?...”
At this point, the judge noticed something
odd. The answer to question 3 was unclear. Handing the paper to the foreman of
the jury, he said: “Would you look at that, Mr. Foreman? Two words have been
written: which is the final one?” The foreman marked the paper and handed it
The Lord Chief Justice continued: “(3) Were
they fair comment?No. (4) Damages, if any?£100.”
At this point, lawyers for the plaintiff and
the defendant asked for judgement. Given the late hour, the Lord Chief Justice
decided that arguments would be heard the following morning.
The next day, the plaintiff’s lawyers argued
that they had won the case. The words complained of were defamatory and
fell into two classes: statements of fact, and statements of opinion. According
to the findings of the jury, while the defense had succeeded in justifying the
statements of fact as true, they had failed to convince the jury that the
statements of opinion were fair comment. On this basis, the plaintiff’s lawyer
said that they were entitled to judgement on the findings and for damages of
For the defense, Charles disagreed, arguing
that the plaintiff’s lawyer could not point to a single case where the jury’s
decision that the words complained of were true in substance and in fact was not the end of the matter. In other words, as soon as the jury had
answered the second question “yes,” they should have stopped there. The Lord
Chief Justice agreed with them.
Sutherland and his anti-eugenist supporters
Stopes appealed the decision and won at the
Court of Appeal 2-1, on the grounds that the judge had not adequately briefed
the jury. Sutherland counter-appealed to the House of Lords, who supported him
Why it matters
I recently met an eminent historian of the
period and we discussed eugenics. She remarked that she would have preferred to
deal with the eugenists of 100 years ago to the eugenicists of today. This
surprised me, so I asked her why. She replied that the eugenists of 100 years
ago were forthright about their aims, while their modern counterparts
And she was right. The opprobrium attached to
eugenics by the end of the Second World War has meant that it has become more
discreet. The “Eugenics Education Society” is now the nondescript “Galton
Institute.” Enthusiasts no longer talk about “Superman” or the “unfit” but of
“human potential” and “viability” and the “nuchal translucency scan.”
Eugenics is still with us, but hidden in plain sight.
We live in a time in which genetic science
continues to advance rapidly, for good and for ill. Science is complex. It’s
going to be a challenge to get people interested in highly-technical
descriptions of sub-microscopic events. And even if you do get them to
understand, are they going to be able to explain it to someone else?
The true story of battle between Stopes and
Sutherlandas opposed to the widely-held narrative that this was a case of a
noble humanitarian being persecuted by the Catholic Churchenables Catholics to
reflect on their history and inspire those who will fight the battle in our