Tenderness, page 51
Here was a moment he would not soon forget.
Indeed, he felt rather emotional.
‘Tea?’ he said.
ix
Day One, Thursday, October 20th
The day had come at last, grey and soggy. October had been a wet month, with little of the crisp freshness he loved in a usual Hampstead autumn, and with still less of October’s mellow light. The temperature had dipped, and mist clung on through the days, like a fog to the head or a bug one couldn’t quite shake.
In town, a thick yellow murk obscured street kerbs and road signs, and sometimes one’s own feet. People seemed to keep falling into the Thames these days, or riding their bicycles into it. The week before, with very low visibility, there had been a spate of burglaries, and cars abandoned along the length of the Mall. At Marble Arch, the police were directing traffic with flames. It wasn’t the worst of the fogs he’d known, but it did seem as if the whole of the city needed a stiff breeze.
At The Gables, he’d woken too early, clammy, with a racing brain. Rather than lie awake, he’d risen at five and, tea made, he’d thrown a mac over his pyjamas and walked, balancing cup and pipe, to the bottom of the garden. Fetch trailed companionably after, and there they’d stood beneath the dripping beeches, between those massive trunks and their twin poles of calm. Their branches had been stripped of leaves in the storm of the previous week, but the great, exposed roots, three centuries deep, gripped the earth and steadied him.
In four or five hours’ time, he would be seated alongside his client, Sir Allen Lane, in the well of the court, directly below the Judge’s bench. But for this brief interlude, he did nothing more than sip and smoke, moving on in his day only when the quantity of rain in his cup exceeded the quantity of tea.
* * *
—
Court Number One of the Old Bailey was renowned as a theatre of justice, and it rivalled any one of London’s beloved, historic stages for spectacle, intimacy and poor acoustics. It was the largest of the four courts that radiated off the Grand Hall of the Central Criminal Court, and it had seen more than its share of drama over the century. Yet for all its magnificence and its place in the moral imagination of the nation, it was a surprisingly small chamber, seating just two hundred – at a pinch.
As Solicitor for the Defence, Michael Rubinstein could do nothing more than wait for the performance to unfold. He had worked intensively, day and night, weekday and weekend, behind the scenes and above the parapet, for ten weeks. He had orchestrated the entire Defence case, and now he could only watch from ‘the wings’ as his cast took to the stage. Had he done enough?.
The be-wigged players – the barristers – knew their parts faithfully. As he’d assured Sir Allen from the outset, the Defence Counsel were three of the very best, and good men all: Lead Counsel, Gerald Gardiner, QC; Junior Counsel, Jeremy Hutchinson, QC; and Mr Richard Du Cann, the youngest and not yet QC.
The solicitors’ table, in the well of the floor of the court, was a sort of trench or dug-out where one could only hold one’s breath and keep one’s wits. In the war, he had usually found he could do something when things got tough, but in this moment, seated beside Sir Allen and Board Director, Hans Schmoller, directly below the Judge’s dais, he felt somehow cut off at the knees.
The architecture of any court is explicitly configured to raise up and to lower; to aggrandise and to humble. It provides the vessel for the flamboyant display of legal ritual. On rare occasions, a witness might be offered a chair in the witness box, or perhaps a moment to compose him or herself. A juror’s eyes might widen in sympathy or shed a quiet tear but, in 1960, these were incidental details only, for Court One, literally, had little room for human sympathy. Notwithstanding its neo-classical grandeur, the swishing of robes, the white-gloved hands and wigged erudition, the court was still inseparable from its primitive rituals of captivity, debasement and punishment.
Someone had to be ‘low’ so that others could be ‘high’. Or perhaps it was the other way around. Hierarchy, caste and rank still defined every social structure and interchange in the nation’s consciousness, as assuredly as the columns, pediments and pilasters that propped up the Old Bailey itself.
Sir Allen and Hans Schmoller had been spared the humiliation of confinement to the huge dock at the centre of the court. It seemed a civilised token of goodwill, but was it? Was a jury more likely to give a verdict of ‘Guilty’ if the dock itself were empty? That was the risk, yet they would remain at the solicitors’ table, seated to the right of Michael Rubinstein, closest to his good ear. His folders of notes and witness statements were stacked before him, should Mr Gerald Gardiner, Lead Counsel, need to check any point – or should Lane and Schmoller need, he thought with a grimace, to take cover. After all, in the narrow confines of Court One, the public gallery was only ‘a stone’s throw’ away.
God help them.
Above him, on the Judge’s bench, a series of high-backed chairs – like thrones on a dais – occupied the length of the rear wall of the court. These mighty chairs awaited not only the Judge, Mr Justice Laurence Byrne, but also the Sheriff of the City of London, City Aldermen, assorted judicial observers, and even the curious wife of any presiding judge. Mounted on the wall behind the Judge’s chair, the golden Sword of State rose three feet into the air, from a scabbard of purple velvet.
Behind the solicitors’ table, also in the well of the court, were the Counsel’s Rows, a series of leather-upholstered seats for the barristerial bottoms, with the Prosecution Counsel positioned nearest the Judge’s bench, and the Defence Counsel positioned nearest the dock. Barristers were permitted a modest desk and lectern, across which they were now, as the proceedings drew near, discreetly arranging their papers. Behind the Counsel’s Rows, assorted dignitaries were propped like over-sized, obedient school-children who happened to be wearing medals, baronial chains of rank, and, in one case, a pair of house slippers.
The Clerk of the Court had received countless requests for admission tickets for the remaining seats on the floor. The requests had flooded in from the great, the good, the impassioned, the titillated, and the nosy. Even Mr Vyvyan Holland, Oscar Wilde’s son, was in attendance that first day. The trial of Lady C. was the hottest ticket in town, and, now, shortly before half past ten in the morning, Michael Rubinstein could almost hear an invisible orchestra in the well of the court tuning up.
Court Number One, the principal courtroom of the most important criminal court in England, sacrificed nothing of its symbolic staging to the claims of convenience or comfort. The place was jammed full of woodwork which interrupted sight-lines and acoustics equally. It was a tight, three-dimensional puzzle of benches, panelling, desks, chairs, lecterns, tables, platforms and arches, not to mention the upper-storey box of the public gallery, a space so narrow, it most closely resembled a cupboard from which a superfluity of tea-cups might at any moment come crashing down.
In spite of their pending discomfort, the general public had been queuing for hours in the rain outside the Old Bailey for seats in this china cupboard. As the heating system choked and banged into operation, a fuggy smell of wet woollen coats and furs summoned the fond memory of family pets in the minds of many. Michael Rubinstein hoped, absentmindedly, that his wife had remembered to let Fetch in out of the rain.
In any concert hall or theatre, he was always struck by the impression that each member of the audience, be they in the royal box or ‘in the gods’, affected the performance in a way most would never dream. Similarly, the goodwill, or lack thereof, of those gathered in a courtroom was, he believed, a silent but genuine force.
Close to the Judge’s bench and ahead of the Counsel’s Rows was the jury box: two enclosed rows which seated six jurors apiece. This was ‘front row of the stalls’ for the twelve most important people in the court, citizens who, on the morning of Day One, had yet to be revealed. Watching on behalf of the nation were twelve tightly packed rows of members of the press.
The great dock itself, a box large enough to accommodate at least ten defendants, or ten specimens for the scrutiny of the court, was centre-stage and directly within the Judge’s sights. In more usual cases, the defendant would ascend into the dock from the holding cells in the bowels of the Old Bailey. Also in the basement was the coal-room of the great edifice and a mighty heaving furnace. Beneath it and a hatch in the floor, the ancient River Fleet ran, culverted and unseen, through London’s underworld, like a River Styx of ancient Britain.
On the stroke of half past ten, three loud raps sounded on a door of the court, and everyone straightened in their seats. The overture had begun. An usher appeared and, in a rousingly clear voice which defied the acoustics, he called upon everyone to be upstanding, and for God to save the Queen.
A door promptly opened on the Judge’s bench-cum-dais, and from it, as if in a clockwork theatre, came the Sheriff of the City of London, ruffled in lace, glinting with hardware, and clutching a cocked hat. The Lord Mayor entered in full regalia, flanked by two City Aldermen in gold chains and midnight-blue furred robes. A silver-haired woman emerged, wearing a voluminous cape upon which a brooch glittered expensively. That was not paste! noted the editors of the Women’s pages.
Finally, all stepped back, and Mr Justice Byrne appeared, a wizened figure in a cropped grey wig, white gloves and an ermine-trimmed, scarlet robe, girded at the waist by a gleaming black sash. It was a costume that wouldn’t have looked out of place on a sorcerer, and Mr Justice Byrne carried not only the black cap of his office, but a nosegay of flowers – traditional relief from the rising stink of Newgate Prison, over which the Old Bailey had once stood. Ritual sprigs of rue had also been strewn on the Judge’s bench, at the ends of the barristerial rows and, most plentifully, around the prisoners’ dock.
The Judge bowed three times to the assembled barristers, who bowed back to him. Gowns fluttered as he and the court took their seats. His own Seat of Office was first held and then ‘glided’ into place by the Sheriff, an action facilitated by twintracks on the bench, to give the impression of a Judge infallibly at ease.
Lady Byrne, his caped spouse – also, reader, judge and annotator of the Judge’s copy of the novel – was shown to the high-backed chair beside her husband. Then Mr Justice Byrne peered, not unkindly, over his spectacles at the assembly.
As Michael Rubinstein looked up at him, he observed that something unexpected dangled from the Judge’s wrist – a blue-grey damask bag. I say, thought Rubinstein, that’s a new bit of kit! From this bag, Mr Justice Byrne now produced, in solemn fashion, an orange-and-white item – as if it were an object anthropologists might one day identify as a fetish of some little-known, twentieth-century European rite.
The offending Penguin paperback, priced on the cover at the radical sum of 3s. 6d., radiated its own curious life as the Judge laid it upon the narrow desk before him. Only at this point did Sir Laurence Byrne nod to the Clerk of the Court, who stood on cue to initiate proceedings.
The spectre of the great dock was, for those gathered in Court Number One, a disappointingly hollow prospect. Not only did its oaken mass block many a view, without any compensatory glimpse of a prisoner, it was also oddly inert, like a ball at the start of a match, doomed never to leave the referee’s hands. No prisoner had made the sickening ascent up the stairs from the holding cells below. No wretch had arisen, blinking into the light of justice. No defendant looked out upon the rows of impassive faces with the confusion of the wronged, or the cockiness of the congenitally criminal.
* * *
—
As the trial gets underway, the jury is called, one by one, from the back of the court where they wait out of sight. Each juror is sworn in, reading the oath from a printed card, or stumbling over the reading – rather worrying, thinks Michael Rubinstein, for a trial about a book.
Jurors are required to be property-owners, which means they are usually middle-class men with fairly standard middle-class views. Otherwise put, they are often compliant with the Prosecution and ‘willing to convict’.
In the roll-call of jurors, Mr Gerald Gardiner, QC, Senior Counsel for the Defence, objects to the fifth man. ‘Will you step down, please?’ No reason is required. The tea-cups in the gallery look at each other, blank-faced. The man is instructed to come out of the jury box, and he is replaced.
The twelfth and final juror is just approaching the ‘whole truth and nothing but the truth’ when, once again: ‘Will you please step down?’
Both men are left eternally to wonder. Did they appear untrustworthy? Unkempt? Unclean?
They cannot know that the Defence are of the view that women generally feel less need to disapprove for disapproval’s sake. It is also the belief of the Defence team that women tend to judge men less harshly than men judge one another, especially in public, where men are often zealous on matters relating to sex, if only so they don’t appear sexually suspect themselves. Women, it is felt, are less complicated about the subject – less implicated, one might say – or so the Defence team hope. They would prefer more women, but as it is, they are doing well to have three among the twelve jurors. The ‘rules of engagement’ actually permit Mr Gardiner to press for up to seven substitutions without the need to explain, but he cannot risk being thought to manipulate proceedings. The jury might punish the ‘Prisoner’ for it.
It is all so delicately judged.
While the ‘sworn-in’ await the last of their number, they shift self-consciously in their seats and turn their faces heavenward to ponder the great circular skylight as it streams with rain. They are, at a glance, in their mid-forties and early fifties. One woman, evidently, is quite wealthy. Another might be a schoolmistress. The men, wearing similar suits, are less distinguishable. Most, if they have hair, are greying at the temples. Several are spectacled. Two smoke as they wait.
The world’s press and the tea-cups in the gallery crane forward to study the twelve. Is he/she a reader, a philistine, a liberal, a Communist, a man of the world, a spinster, a bluestocking, a wide-boy, a yes-man, a loose woman, an upstart, or a safe pair of hands? Is he/she conservative, radical, loose-lipped, tight-lipped, forward-thinking, old-fashioned, moral, sensible, bolshy, broad-minded, jolly nice, buttoned-up, or sex-mad?
The Clerk of the Court goes up and down the rows of the jurors, doling out copies of the otherwise imprisoned paperback. Then, ‘Members of the Jury,’ he begins, ‘the Prisoner at the Bar, Penguin Books Limited, is charged that on the 16th day of August last it published an obscene article, to wit, a book entitled Lady Chatterley’s Lover by D. H. Lawrence. To this indictment, it has pleaded not guilty, and it is your charge to say, having heard the evidence, whether it be guilty or not.’
At the word ‘Prisoner’, Michael Rubinstein feels the solid, pugnacious man at his side, Sir Allen Lane, flinch, as if he has just glimpsed the place he does not yet have knowledge of: the holding pen for the convicted below the dock, a pen known simply as the Cage. If found guilty as charged, the punishment is an unlimited fine – or three years’ imprisonment.
Across the nation, the bookies’ odds are stacked against Lady Chatterley. She might have succumbed to her gamekeeper’s advances, but the country – with the exception of its literati – is not prepared to yield, or not if the early evidence is any indication. Sir Allen Lane’s daily post-bag at the Penguin offices is stuffed full of vitriol.
‘You loathsome, vile hypocrite. You’ve known all along the book would be read for the wrong reasons…You pimp of the Harlots’ Union. Bastard. What have you bribed your witnesses with?’
‘I hope you make a lot of hay out of Lady Chatterley. I also trust that you will receive whatever judgment God may have for you.’
‘You merit no salutation. There are three kinds of bad smell (1) a damned stink (2) a bloody stench and (3) The Penguin Press!’
* * *
—
Mr Mervyn Griffith-Jones, QC opens for the Crown. He boasts clean-shaven, well-boned good looks, fitting for his role of Principal Actor of Court Number One. Indeed, in his eighteenth-century-style wig, he looks not unlike a county squire temporarily released from a portrait by, let us say, Joshua Reynolds. His gaze is one of easy assurance. His bearing suggests an attitude of restrained impatience – of knowing what needs to be done for the sake of the public good and wanting to do it, by God.
His lady-wife is not with us today, but we might imagine her at his side in the Reynolds portrait, in her middle years, well-fed and lavishly wigged. A whey-faced son, in a lace ruffle and frock-coat, stands to the other side of his father, cultivating an air of impudence. At the squire’s feet, we see his docile spaniel, and in the background, perhaps a Grecian urn or two, lifted by the squire during the Grand Tour adventures of his youth. All is in order, in other words. His hand rests on his hip. His breeches reveal lean and well-proportioned ‘pins’. He has the bristling appearance of someone who must be off.
He begins: ‘Members of the Jury, Penguin Books Limited need no introduction. They are a well-known and, let me say at once, highly reputable firm of publishers.’
The Senior Counsel lays out the wares of the Prosecution case, educating the jurors in the salient points of the amended Obscenity Act – as he sees them. ‘The evidence will be that the company proposed to publish this book, Lady Chatterley’s Lover, at a price of three shillings and sixpence, and indeed had printed and were in the process of distributing to the retailers some 200,000 copies for sale for the release date, 25th August. Now then, it is not a question of whether it has depraved somebody, or must deprave, or will deprave. The question which you have to decide is: has this book a tendency, may it – might it – deprave those who are likely, in the relevant circumstances, to read it?’
