The link below is to an article that takes a look at the Life and Work of D.H. Lawrence.
The paperback copy of Lady Chatterley’s Lover pictured above is of great cultural significance. Leafing through the pages one discovers hidden gems: pencil markings, underlinings, marginal annotations. Accompanying the book are sheets of headed stationery from the Old Bailey, containing handwritten notes relating to the novel along with a clumsily hand-stitched fabric bag – apparently made not to protect the book but rather the person carrying it by obscuring its title.
It’s the “judge’s copy” of the book, used by Mr Justice Lawrence Byrne who presided over the 1960 Lady Chatterley trial in which DH Lawrence’s famous novel was at the centre of a test of Britain’s new censorship law.
The University of Bristol’s acquisition of the so-called “judge’s copy” in 2019 was an important moment and, having assisted in making the case for its new home to be in the university’s special collections, examining it for the first time was thrilling. Now, on the 60th anniversary of the trial it is timely to consider this intriguing volume. But first a reminder of the case with which it was connected.
In August 1960, by pre-arrangement, the police were handed copies of the unexpurgated Lady Chatterley by its publisher. Following this, Penguin Books Limited was charged with publishing an obscene article under the Obscene Publications Act 1959.
The 1959 act aimed both to strengthen the law concerning pornography and to protect literature. It created the publishing offence (the handing over constituted publication) and provided that material was “obscene” if its effect, taken as a whole, was such as to tend to deprave and corrupt persons who were likely to read, see or hear it.
But a public good defence meant a conviction would not result if it were proved that publication was justified “in the interests of science, literature, art or learning, or of other objects of general concern”. The Lady Chatterley trial was a test of the act; in particular, would the defence protect creative works?
In the courtroom, while the defence did not accept the book was obscene, their focus was on its literary merit. A line up of 35 witnesses (women and men) were called on behalf of publisher Penguin to speak in favour of the book, including authors, academics, clergy, a 21-year-old English graduate and a headmaster. The prosecution played a minor role, calling only one witness and sometimes putting no questions to those who appeared for the defence. In the end, after three hours of deliberation, the jury of three women and nine men returned a unanimous verdict. Penguin was acquitted.
Which brings us back to Lady Chatterley and, in particular, the book in the fabric bag. Copies of the unexpurgated novel were circulating before 1960, meaning some of those involved in the case had long been familiar with it – the first defence witness had read it in about 1940. The police had acquired a marked-up proof copy of the Penguin book before the publisher’s handover.
The lawyers had taken great pains to study the 1960 text in preparing for the trial. Defence files show that Penguin’s solicitors undertook an analysis not entirely dissimilar to that on show in the “judge’s copy” with its accompanying notes. As prosecutor Mervyn Griffith-Jones demonstrated in his opening to the jury, where he observed that the words “fuck” or “fucking” occurred at least 30 times within the novel’s pages, so too had the Crown.
The jury were given copies in court, just before the trial began. At the end of the first day, the judge adjourned the case, directing them to read the book but forbidding them from taking it home. After a gap of several days the proceedings resumed and the trial continued for a further five days.
Reports tell how copies of the novel were handed round the court during the trial, to the jury, witnesses and to the judge, with the players occasionally leafing through the pages in search of a particular passage. The judge, however, was given a copy of the book at the same time as the jury first received it, on day one of the trial, before proceedings got underway.
It seems that at some point Byrne shared the novel with his wife, as we are told that most of the markings in the book and all of the separate notes are in Lady Dorothy Byrne’s hand, with a few annotations apparently made by her husband. Accounts suggest she worked on the text before the trial (or perhaps during the jury’s reading days), with her husband adding notes during proceedings as she sat next to him. Lady Byrne is also credited with making the bag.
This all suggests that the couple worked together, with Lady Byrne taking the leading role. Moreover, they did so despite Griffith-Jones’s question to the jury on day one of the trial: “Is it a book that you would even wish your wife or your servants to read?”
How then did the “judge’s copy” journey to Bristol? The Byrne family auctioned it in 1993. It came up for sale again in 2018, selling to a private individual in the US. In an attempt to keep it in the UK, the book was placed under temporary export deferral and expressions of interest were sought. At Bristol we put together a case to acquire the book and fundraising efforts began, with contributions coming from organisations and individuals.
As a result, the “judge’s copy”, notes and bag now reside alongside the Penguin Archive and trial papers of Michael Rubinstein, Penguin’s solicitor. Given its history, however, I wonder if we might begin to reconsider how we refer to this Lady Chatterley. Because of her work, the judge’s wife seems to deserve credit; it is not only the “judge’s copy” it is also very much “Lady Byrne’s copy”.
The judge’s copy of Lady Chatterley’s Lover used in the landmark 1960 obscenity trial of DH Lawrence’s famous novel is to be sold at auction in October. The paperback copy will be sold with a fabric bag, hand-stitched by the judge’s wife Lady Dorothy Byrne so that her husband could carry the book into court each day while keeping it hidden from reporters. The lot includes the notes on significant passages that Lady Byrne had helpfully marked up on the book for her husband, and a four-page list of references she had compiled on the headed stationery of the Central Criminal Court.
After six days of evidence and only three hours of deliberations, the jury found in the favour of Penguin Books, its verdict allowing the publisher to print copies of the novel for the first time. The trial was seen as a victory for liberal ideas over the old establishment. In literary terms, it signalled the opportunity for authors to write with a new type of language and freedom.
But was Lawrence really the first writer to use obscenity in literature? And were liberal readers of the 1960s the first to appreciate the literary potential of obscene words and sex scenes? In short, the answer is no. The literary world which Lawrence and his fellow modernist writers inherited was that of the Victorian establishment. An establishment that had silenced earlier writers who, like Lawrence, used obscenity for literary ends.
One of the most important writers to be wiped from the publishing record during the 19th century was the poet John Wilmot, Earl of Rochester. Even today, we continue to find the obscene language and images found in Rochester’s poetry shocking. Take, for example, his A Satyr on Charles II a critique of the monarch as a man governed by his penis:
‘Tis sure the sauciest prick that e’er did swive,
The proudest, peremptoriest prick alive.
Though safety, law, religion, life lay on ’t,
‘Twould break through all to make its way to cunt.
Restless he rolls about from whore to whore,
A merry monarch, scandalous and poor.
Following his death in 1680 publishers scrambled to produce editions of Rochester’s poems – correctly perceiving the public appetite for his verse. An initial run of pirate editions of Rochester’s poetry was quickly supplanted with an authoritative collection, produced in 1691 by the leading literary publisher of the day, Jacob Tonson. Tonson is credited with popularising John Milton’s (up to that point, fairly unsuccessful) poem Paradise Lost and also producing the first footnoted editions of William Shakespeare’s collected plays.
So why did a respectable publisher such as Tonson take the gamble of printing Rochester’s verse? The answer lies in the recognition of Rochester’s poetry as literature rather than obscenity. Just as with Lady Chatterley’s Lover, we need to read past the obscene language and images of the work to understand what Rochester is really saying.
The animal in human skin
Rochester is a poet of the human condition. He strips man down to his barest drives and desires to see the animal lurking underneath. In this way, he was much like the contemporary philosopher Thomas Hobbes, who famously pronounced that life was “nasty, brutish and short” and that underneath it all man was a beast like any other.
For Rochester, the sexual realm is just another place where we see (and feel) this stark reality. Rochester strips away all sense of love and romance from his depicted sexual encounters. And there are many of them. His images are those of the mechanics of sex, its failures, disappointments and disease. Take his notorious poem, The Imperfect Enjoyment, a work that opens with a scene indicating the sexual promise to come:
Naked she lay, clasped in my longing arms,
I filled with love, and she all over charms …
Quickly, this promise is destroyed. The poem’s speaker prematurely ejaculates:
But whilst her busy hand would guide that part
Which should convey my soul up to her heart,
In liquid raptures I dissolve all o’er,
Melt into sperm, and spend at every pore.
A touch from any part of her had done ’t:
Her hand, her foot, her very look’s a cunt.
The speaker’s lover encourages him to try again, but to no success:
Trembling, confused, despairing, limber, dry,
A wishing, weak, unmoving lump I lie.
The obscene language Rochester employs in The Imperfect Enjoyment – and the sexual act on which it focuses – led generations of readers to view the work as pornographic. But this is to misread the poem. The clue is in the title: the poem portrays the ultimate failure of desire. The emptiness of human experience. And its cold, clinical and obscene language (sperm, spend, pore, cunt) is contrasted throughout the poem with phrases that point to the scene’s absent romance (the sexual act “should convey my soul up to her heart”, but it doesn’t).
The beast within
Rochester is often seen as a dangerous or obscene writer in the way he glamorised the licentious world of the Restoration court. But when we read his poetry more closely, we find little glamour in the language expressed. His verse exposes human feeling and behaviour, showing the superficiality of our social world with all its polite manners and codes of behaviour. And the use of obscene language is key to that project. As Rochester succinctly phrased it in his correspondence, “Expressions must descend to the Nature of Things express’d”.
The Victorians couldn’t cope with Rochester’s poetry, and there were no editions of his work published in the 19th century. It wasn’t until 1963, in the wake of the Chatterley trial, that American scholar David M. Vieth began work on a modern uncensored edition. Vieth gave us back the real Rochester and made it possible for readers to access his poems once again.
Obscenity might not make for comfortable reading, but that’s often its point. The purpose of literature is to make us feel, and to give us new ways of experiencing and thinking about the world around us. For Lawrence this involved using a new language that cut across class and gender in celebrating the sexual act – for Rochester it involved looking into the mirror and confronting the beast within.
Jeremy Hutchinson, who has died at 102, was one of England’s finest criminal barristers. He was counsel of choice for some of the most high-profile cases of his era. He defended the likes of Christine Keeler and Great Train robber Charles Wilson and also obscenity cases against novels like Fanny Hill and Lady Chatterley’s Lover.
Later known as Lord Hutchinson of Lullington, his role defending Penguin Books after it published the unexpurgated version of the DH Lawrence classic is particularly memorable. It remains the landmark case in British obscenity law.
But look at the details and something extraordinary emerges: Penguin’s decision to publish 200,000 copies on the advice of Hutchinson and joint lead counsel Gerald Gardiner was a massive gamble. It set up a case that were it not for the incompetence of the prosecution could easily have gone the other way.
Obscenity and England
Lady Chatterley’s Lover had only ever been legally published in abridged versions in the UK, starting in 1932. Though by 1960 the unexpurgated edition was sold in Europe and America and could be obtained under the counter in London if you knew where to go, Penguin co-founder Allen Lane wanted to publish a cheap paperback of the full thing.
The idea was to put it out at 3s 6d, the same price as ten cigarettes, to make it affordable for the “young and the hoi-polloi”. The excuse was the 30th anniversary of Lawrence’s death from tuberculosis at the age of 45.
When Penguin consulted Hutchinson and Gardiner, the lawyers retreated to reflect. A trial under the new Obscene Publications Act seemed inevitable. The act’s first paragraph stated that material will be deemed obscene if it contains elements that tend as a whole “to deprave and corrupt persons who are likely … to read, see or hear” it.
The act included a new defence in cases where the offending segments were “for the public good on the ground that [they are] in the interests of science, literature, art or learning”. In consultation with several literary experts, Hutchinson and Gardiner felt most of the racy scenes and bad language – including (30) “fucks” and (14) “cunts” – could fall under this defence. Lawrence, after all, was one of the most highly regarded writers of his era.
Hutchinson was concerned about page 258, however, where anal sex crops up – albeit obliquely. It has Oliver Mellors, the lover in the book’s title, trying to divorce his wife Bertha Coutts and being accused by her “of all unspeakable things”. Clifford Chatterley writes a letter to his own wife saying that Coutts has aired details about her marriage to Mellors which are “usually buried down in the deepest grave of matrimonial silence”.
But, he comments:
Humanity has always had a strange avidity for unusual sexual postures, and if a man likes to use his wife, as Benvenuto Cellini says, ‘in the Italian way’, well that is a matter of taste.
Lady Chatterley has pause for thought:
Connie remembered the last night she had spent with [Mellors], and shivered. He had known all that sensuality, even with a Bertha Coutts! It was really rather disgusting. It would be well to be rid of him, clear of him altogether.
Her friend Duncan Forbes then makes light of it:
If he’s made love to his wife all ends on, hasn’t he a right to? She ought to be proud of it.
While homosexual anal sex between consenting men was legalised 50 years ago in the UK, the heterosexual equivalent became legal only at the millennium in England and Wales and was highly illegal in 1960. (The 2001 film Bridget Jones’ Diary celebrated legalisation with a pretty explicit scene between Renée Zellweger and Hugh Grant.)
Illegal acts could still potentially use the public good defence, but Hutchinson feared it made the case much harder to win. Gardiner and the experts at the meeting dismissed his fears. In these more innocent times, they were betting that the prosecution wouldn’t grasp the point and omit it from their case. Hutchinson agreed to go ahead and advised Penguin accordingly.
The defence called 35 professors of literature, authors, journalists, editors, critics, publishers and child education experts, and four Anglican churchmen. Each declared the book had sufficient literary merit to deserve publication for the public good. (Those less convinced of Lawrence’s genius begged off – Enid Blyton declared she had never read the book and “my husband said no at once”.)
Lead prosecutor Mervyn Griffith-Jones cross-examined only 14 of the 35. He lost most of those rounds, and sometimes his temper in the process. It was only in his closing speech he said to the jury:
Would you look at page 258. It is a passage which I have not – and I do not think anybody has – referred to during the course of cross-examination, or indeed at any time during this trial. It … describes what is called the ‘night of sensual passion’.
He read out the whole passage remarking: “Not very easy, sometimes, not very easy, you know, to know what in fact he is driving at in that passage.”
It’s not clear how many jurors understood the passage; some were said to be visibly shocked. Certainly Griffith-Jones had missed the significance entirely, having referenced it only to underline the book’s general depravity. Mr Justice Byrne summed up with no reference to anal sex either. The issues were, he said, promiscuity and adultery described in words that were “normally obscene”.
The jury returned in three hours and found Penguin not guilty. Neither the clergy nor any of the other experts had been examined on anal sex and it is not clear whether they realised they were implicitly defending it or not. A watershed in British obscenity law had been achieved without any discussion about the illegal sex acts central to the novel.
In the wake of this case, publishing in Britain became considerably more liberal. Had Hutchinson not agreed to advise Penguin to take that extraordinary gamble, things could have panned out very differently.
The link below is to a book review of ‘The Rainbow,’ by D. H. Lawrence.