Books, Law


How is one to give evidence of literary merit in a court of law?” asks Sybille Bedford in her short account of the Lady Chatterley’s Lover trial (re-published this month by Daunt Books).

The story of the trial is well known. Penguin Books, the publishers of D. H. Lawrence’s novel, were charged with publishing an obscene book under the 1959 Obscene Publications Act and tried at the Old Bailey in November 1960. Despite the condescending patrician grandstanding of the prosecutor Mr Mervyn Griffith-Jones “is this a book you would even wish your wife or your servants to read”, “members of the jury for those of you who have forgotten your Greek, ‘phallus’ means the image of a man’s penis” and the moralising judge Mr Justice Byrne (and his scowling wife sitting daily with him on the bench) the jury acquitted.

Sybille Bedford was commissioned to write about the trial for Esquire who published this account of it. Thomas Grant has written a preface for this new edition and says that Bedford invented a genre in that her reporting is less about the facts of the case than the trial itself. The trial was presented not as a resolution of prior events but as the subject itself. Certainly her cool observation and laconic retelling is well worth reading. But as I did it seemed that several fallacies were at large.

The issues to be decided by the jury, once they had read the novel, were:
(1) Has the prosecution proved that the book, taken as a whole, was obscene? That is: did it have a tendency to deprave and corrupt those who were likely to read it? If no, not guilty. If yes:
(2) Has the defence proved that the book is for the public good on the ground that it is in the interest of science, literature, art or learning, or of other matters of general concern? If yes, not guilty; if no, guilty.

This test was meant to allow the law to distinguish between works of literature and works of pornography. Most of the trial, and so Bedford’s account, was given over to the second question: ‘public good’. The defence called thirty five witnesses, over five days, as to the novel’s literary and moral merits.

How does a work of art promote ‘public good’? Art is not instruction, it should not preach, and by its nature it is unreliable, unstable, uncertain. Art is not meant to make you do anything; it is of no instructional value. Didactic books are instructive, but they are poor art. One of the basic tenets of literature, and a key assumption of aesthetics, is that a work of art is anti-didactic. Novels that tell you how to live and how to think are instantly suspect.

But these writers and literary critics were called to give evidence on the ‘public good’ question and they identified Lawrence’s purpose in this novel as:

  • making the sexual act less shameful and seeking to promote it from the degrading to the joyful,
  • showing a marriage of union in a complete sense (not just a legal one) of two people (Connie and the gamekeeper Mellors)
  • returning the soul to a more intense way of life that is valid and precious,
  • removing the shock value from the words such as ‘fuck’ and ‘cunt’ and finding a language where sex could be discussed not furtively,
  • writing about sex without euphemism in a way that was both honourable and, even, puritanical in its reverence.

This falls into the fallacy of judging a book by the author’s intention. To identify an author’s purpose, or more specifically their morality of purpose, is not a proper way of judging a literary work. It matters little, in a novel, what the author intended, what is important is the text itself. Art is a free floating, gratuitous, autonomous artefact or narrative, a justification unto itself. It is not a means to an end, but an end in itself. In the words of W. H. Auden “art is not life and cannot be/a midwife to society”. Or Oscar Wilde “all art is quite useless”. Stock, second rate, didactic stories can be useful. They can be used to promote aims politically or socially or ethically. They can be used to teach. And they are thereby overwhelmingly poor art. Who wants to read a sermon? There is a problem therefore with the statutory ‘public good’ defence to the charge of obscenity. Second rate books may be able to satisfy the ‘public good’ test more readily that works of high literary merit. Osbert Lancaster’s was onto this point in his cartoon published in the Express following the trial. A woman to the bookseller: “it is odd that now one knows that it is profoundly moral and packed with deep spiritual significance a lot of the old charm seems to have gone”. Who wants to read a utility novel that solemnly promotes the ‘public good’? A good novel’s merit is not definable in a way that offsets its tendency to corrupt. It should be making comfortable people uncomfortable, it should be unmasking illusions, it should to some extent be corrupting . A work of art is neither moral not immoral. And so, given the way the statute is framed, there may be no answer to Bedford’s question: “How is one to give evidence of literary merit in a court of law?

The prosecution were not up to these points. Instead they promoted a fallacy of their own. Griffith-Jones sought to put Lady Chatterly herself in the dock. The morality of her Ladyship became an exhibit at the trial. Here is the case, as presented, for and against her. For (as implied by the defence): poor Connie, loving and open and joyful and unfulfilled, seeking a soulful mate and acting “heavy with conscience” and with generosity and warmth. Against (as implied by the Crown): Lady Chatterly, traitor to her class, guilty adulteress (to a baronet no less) party to a future divorce action, failing in her duty, not upholding the standards expected of her. The prosecution thought that this was an advantageous ground upon which to fight this battle. This too was a fallacy: an immoral character does not an immoral book make. With this argument Antony and Cleopatra, Madame Bovary and Anna Karenina, and many more, are all for the King’s chimney.

But this was 1960, and the jury were satisfied that either Lawrence was an unconventional puritan or that Connie Chatterley had not behaved too badly after all or that the prosecutor was a complete berk.


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