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Lady Chatterley’s Lover and the politics of “variable obscenity”

By Christopher Hilliard

It’s the most famous own goal in English legal history. In London’s Old Bailey, late in 1960, Penguin Books is being prosecuted for publishing an obscene book – an unexpurgated edition of D. H. Lawrence’s novel Lady Chatterley’s Lover. The prosecution asks the jury whether Lady Chatterley’s Lover was “a book that you would even wish your wife or your servants to read.” Some of the jurors laugh. Three of them are women. Quite a few are manual or retail workers – not the sorts of people who have live-in servants. Mervyn Griffith-Jones, a prosecutor who once secured the conviction of a Nazi propagandist in the Nuremburg trials, has made himself look ridiculous.

Lady Chatterley's Lover by D.H. Lawrence. Photo by Chris Drumm, CC BY 2.0, via Flickr.
Lady Chatterley’s Lover by D.H. Lawrence. Photo by Chris Drumm, CC BY 2.0, via Flickr.

Everyone who writes about this landmark case quotes Griffith-Jones’s disastrous question to the jury. It’s invoked as a sign of how out of touch the British Establishment was. Clearly, Griffith-Jones was out of touch with the Britain of 1960. But there was something more interesting than fogeyism going on here.

Griffith-Jones’s question reflected what had long been a convention of English obscenity law. A sexually frank book might be acceptable in an expensive limited edition, but it would not be acceptable if it was produced for a mass market. This principle has been called “variable obscenity.” Of course, censors still assume that younger readers and viewers need special protection and restrict access accordingly. What’s intriguing about the history of English obscenity law is the way gender and social class figured in the judgments that the police and the courts made about who could be trusted to read what.

In the late nineteenth century, companies that published translations of salacious French novels in cheap editions within the reach of working people risked prosecution, but authorities could turn a blind eye to lavish editions that were beyond the means of “the ordinary English public.” Here the law embodied a Victorian assumption that the qualities gathered under the umbrella terms “character” and “self-government” could be indexed to social position. This thinking was crucial in debates about the franchise from the 1850s onwards. Which working-class men were responsible enough to be entrusted with the vote? The various answers to this question involved using tax status as a proxy for patriarchal qualities. So when Griffith-Jones asked jurors whether they would trust their wives or servants with Lady Chatterley’s Lover, he was not just expressing an old-fashioned social and moral code: he was working with a Victorian conception of citizenship.

Those ideas had long since become untenable in other reaches of British culture. After every adult was enfranchised in the decade following World War I, it became a liability for an elected politician to cast doubt on the mental or moral capacity of all women or working-class people. These social judgments were kept alive in obscenity law not just by the paternalism of senior lawyers but also by the routines of policing and the circular force of reasoning from precedent. An informal legal doctrine was able to stay constant even in the midst of social change.

The Lady Chatterley’s Lover trial fatally discredited variable obscenity. The new Obscene Publications Act, passed the year before the trial, enabled the defense to call witnesses with Establishment authority of their own. The 1959 legislation had not been drafted to put an end to variable obscenity, but its expert-testimony provisions opened up a space where the social assumptions of the law could be exposed to challenge. Cultural change often happens this way. Social trends can be enveloping without being pervasive, and it can be through a change in some localized practice or procedure that they make their impact on the law — or literature, or education, or another cultural structure with its own conventions and procedures.

Griffith-Jones’s overreach, too, played a part in the democratization of English obscenity law. Penguin’s counsel, Gerald Gardiner, had been briefed to minimize arguments about class differences, but in his closing statement he confronted Griffith-Jones’s question head-on: “I cannot help thinking this was, consciously or unconsciously, an echo from an observation which had fallen from the bench in an earlier case: ‘It would never do to let members of the working class read this.’” This “whole attitude,” Gardiner said, was “one which Penguin Books was formed to fight against … this attitude that it is all right to publish a special edition at five or ten guineas, so that people who are less well off cannot read what other people do. Is not everybody, whether they are in effect earning £10 a week or £20 a week, equally interested in the society in which we live, in the problems of human relationship, including sexual relationship? In view of the reference made to wives, are not women equally interested in human relations, including sexual relationships?”

Christopher Hilliard is an associate professor of history at the University of Sydney. he is the author of “‘Is It a Book That You Would Even Wish Your Wife or Your Servants to Read?’ Obscenity Law and the Politics of Reading in Modern England” in The American Historical Review, which is available to read for free for a limited time. He is the author of English as a Vocation: The ‘Scrutiny’ Movement (Oxford University Press, 2012), and To Exercise Our Talents: The Democratization of Writing in Britain (Harvard University Press, 2006), which is about ordinary people becoming creative writers in the twentieth century.

The American Historical Review (AHR) is the official publication of the American Historical Association (AHA). The AHR has been the journal of record for the historical profession in the United States since 1895—the only journal that brings together scholarship from every major field of historical study. The AHR is unparalleled in its efforts to choose articles that are new in content and interpretation and that make a contribution to historical knowledge.

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