Stopes v. Sutherland: The legal battle between a eugenicist and a Catholic doctor

Editor’s Note: This is the second and final article on the Stopes v. Sutherland libel trial of 1923. The first article 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 Control 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

Sutherland 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 fact.

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.

The 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.

How 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 Haire.

The testimony of Stopes

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.

Once 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.

When 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 his testimony.

Next, 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.”

When 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.

The 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.

The “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 purposes.

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.”

There 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.

Dr. 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.

The verdict

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 their answers.

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 back.

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 £100.

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 had won.

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 4-1.

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 obfuscate.

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 Sutherland—as opposed to the widely-held narrative that this was a case of a noble humanitarian being persecuted by the Catholic Church—enables Catholics to reflect on their history and inspire those who will fight the battle in our era.