There is only one prisoner at the bar. He is wearing a charcoal-grey flannel suit, a white shirt, and a neatly knotted dull-crimson tie. His hair is a smooth skullcap of iron grey shot with silver; his face is gaunt, his eyes downcast. He has the look of someone released from confinement, a rehabilitated prisoner, a monk returned from contemplation to the “real” world. His clothes, precisely observed, fit very well; nevertheless, at first glance, they have a look of hanging on him, a suggestion of the clothes hanger, the scarecrow. His neck is thin and grey inside his collar. His bones have a mediaeval look, the cheekbones high and carved, the nose prominent, the eyes half-shut, a little sunk.
Frederica is in Court, with Daniel. She does not at first recognise the prisoner, although she has been part of the meeting which argued for his transformation, and indeed produced the argument that prevailed.
“It’s only a mask, Jude, for God’s sake. A court trial is a fiction, we play parts, it’s a game of chess. You have to play the White Knight, you have to look like a respectable member of society, as the court will think one ought to look, that’s what matters, you have to look right, it’s part of it.”
“It isn’t a fiction. It’s a truth. I am on trial and I am as I am. My appearance is a true statement of what I am.”
“I don’t know what your appearance states,” said Duncan Raby, Jude’s solicitor.
“You are not skilled in the semiotics of clothes,” said Jude. “My coat is sky blue, the colour of truth, and it is the dress at once of the Enlightenment philosophers and the licentious beaux of the courts. My coat is sullied, as truth is sullied. My hair is nature, untended. As is my skin.”
“That’s nice to know,” said Raby. “But it won’t cut any ice with Mr. Justice Gordale Balafray and it’s a tactical disaster.”
“Come on, Jude,” said Frederica. “You must wear the mask appropriate to the rite you find yourself in. You must play their game. You must look respectable. Hair grows and a coat can be put in a cupboard. You expose your naked body happily enough for gain—”
“That is also a form of integrity.”
“Do you want to win this case?” cried Rupert Parrott. “Or not?”
But Frederica is shocked to see the prisoner at the bar. He does have a look, she thinks, of the virtue having gone out of him. He looks ill.
The jury sits in its box. There was some discussion, before it was empanelled, about whether it should be an all-male jury, as used to be customary in obscenity cases. The judge declared himself possibly in favour of such a jury: both Counsel for the Prosecution and Counsel for the Defence were agreed that there was no necessity for such a ruling in their view, and that the presence of one or more women on the jury would make it more representative of the public opinion, the community at large of right-thinking persons, which is represented. As a result there are three women on the jury, none of them young, one the owner of a beauty salon and a widow, one a retired physical training instructor from the Women’s Royal Navy, and one a housewife. The men are all middle-aged except one, a swarthy young man in a leather jacket who owns a gramophone record shop. There are a bank manager, an accountant, a swimming-pool manager, a technical college lecturer (in physics), an electrician, a restaurant owner, a tailor and a teacher from a comprehensive school. Most of them read the oath with no stumbling; the tailor is Jewish, wears a skull cap, and swears by the Old Testament.
Some procedural discussion takes place. It is agreed that, following the precedent of the Lady Chatterley trial in 1960, the jury shall hear the speeches both for the Prosecution and for the Defence before they retire to read the book itself: this provision was then made because it was felt to be unjust that they should read it having heard only one side, with the Prosecution’s comments sharp in their minds. Mr. Justice Gordale Balafray is a very large man, long-faced, darkly handsome under his white wig, which therefore shines whiter. He has a reputation for fairness both to barristers and to witnesses. He has a reputation for liking the arts, too.
It is also agreed, that since the witnesses both for the Prosecution and for the Defence are “expert witnesses”, they have the right to remain in the Court during the trial and not be excluded.
Sir Augustine Weighall, QC, begins his case.
“If Your Lordship pleases. Members of the jury, I appear with my learned friend Mr. Benedict Scaling to prosecute in this case. The defendant company, Bowers and Eden Ltd., is represented by my learned friends Mr. Godfrey Hefferson-Brough and Mr. Peregrine Swift; the defendant Mr. Jude Mason is represented by Mr. Samuel Oliphant and Mr. Merlyn Wren.”
Sir Augustine has a pleasant, aquiline face, with a thin mouth shrewdly pursed when he is in repose. He has the gift of keeping still when he is speaking, looking attentively and considerately at the jury, meeting eye after eye, impartially, with concern. He speaks clearly, unemphatically, practically. He tells the jury that they are here to decide whether the book Babbletower: A Tale for the Children of Our Time is an obscene book within the meaning of the Obscene Publications Act, 1959. The word “obscene,” he tells the jury, is defined by the Oxford English Dictionary as “offensive to modesty or decency; expressing or suggesting unchaste or lustful ideas; impure, indecent, lewd.” It has other meanings, including “lack of perspicuity in language; uncertainty of meaning; unintelligibleness,” and it is the case that the previous law against “obscene libel” did perhaps lack perspicuity, and was uncertain in its meaning. The 1959 Act elucidates the matter in Section 1(A)1, where it defines “obscenity” as follows:
“For the purposes of this Act an article shall be deemed to be obscene if its effect … is, taken as a whole, such as to tend to deprave and corrupt persons who are likely, in all circumstances, to read, see, or hear the matter contained or embodied in it.”
“This elucidation provides other problems of perspicuity in language, meaning, and intelligibleness. You may think you need guidance on the precise force and meaning to attribute to the words ‘deprave’ and ‘corrupt.’ The same dictionary gives as the current sense of ‘deprave’: ‘To make morally bad; to pervert, debase, or corrupt morally.’ The definition of ‘corrupt’ is longer and more complex. The 1959 Act no doubt intends the third meaning of the verb as given: ‘To render morally unsound or rotten; to destroy the moral purity or chastity of; to pervert or ruin (a good quality); to debase, defile.’ ”
In practice, Sir Augustine tells the jury, the phrase “deprave and corrupt” has been taken to mean “to cause to behave badly,” to incite to actions which are contrary to the law, to ideas of decency or propriety which are generally current in the community. He gives precedents for this understanding. He goes on to quote Mr. Justice Stable, who exhorted a jury to “remember that the charge is a charge that the tendency of the book is to corrupt and deprave. The charge is not that the tendency of the book is either to shock or to disgust. That is not a criminal offence.”
Counsel in past cases have rightly emphasised this, and have said to the jury, as he himself is now saying, that the fact that they find a book unpleasant, or shocking, or disgusting, is not in itself a reason to consider it “obscene.” But he believes that the phrasing “tend to deprave and corrupt” does give the jury the right, and possibly the duty, to consider the effect of the book on the soul, if that word is permissible, on the state of mind and health of the spirit, of those who may read it, whether or not it may lead directly to action which is depraved, corrupted, or unlawful.
He tells the jury that they are the only judges of whether or not the book is obscene. Evidence will be led from expert witnesses, by both the Defence and the Prosecution, as to the nature of the work in question, and as to whether it has any literary or other merit. But the opinion of these witnesses will be relevant only as to the merits and demerits of the book, not as to the point of obscenity, on which their opinion should not be asked; if they offer opinions on whether the book is obscene, the jury should disregard them. The matter of obscenity, of whether the book tends to deprave a
nd corrupt, is for the twelve men and women in the jury box, representing humane and civilised society and common sense, to decide.
When they have decided that, and only then, the question of the literary or other merits of the book may arise. Section 4(2) of the Obscene Publications Act entitles the defendant to an acquittal if the jury is satisfied that notwithstanding the obscenity of an article, its publication is justified as being for the public good in the interests of “science, literature, art or learning, or of other objects of general concern.” The Defence have given notice that they intend to raise the Section 4(2) defence and prove it through the testimony of experts. They will argue that the book has literary merits and other important values—social, psychological—which justify its publication in the public interest. “You will make up your own minds as to that, on hearing their evidence. His Lordship has ruled that, exceptionally, the Defence witnesses should be heard first in this case, so that the Prosecution will know upon what grounds they defend the book before calling witnesses in rebuttal.”
Sir Augustine tells the jury that Mr. Justice Byrne, in the case of R. v. Penguin Books, the Lady Chatterley trial, ruled that the prosecuting counsel should not read out passages of the book before the jury themselves had read the whole of the book. Mr. Gerald Gardiner, QC, in his objection on that occasion said, “I am not objecting to my learned friend putting before the jury the nature of the story, or the grounds on which the Prosecution contends it is obscene.… I submit the Prosecution are not entided to try to prejudice the jury’s mind as to particular passages before they have read the book as a whole.”
Sir Augustine says that he will therefore summarise his case against the book at this point, and examine particular passages later. In the old days when books were tried for “obscene libel” and there was no defence of literary merit, or public interest, it was often sufficient for “purple passages” to be read out and to be found unacceptable, to secure a conviction. Here, it is the whole book which is on trial and must be judged, as to whether it tends to deprave and corrupt. Sir Augustine says he is very happy to accept this ruling, since, although Babbletower contains many very explicit descriptions of lewd actions, of explicit sex, of unnatural acts, and most gravely, detailed and superfluous descriptions of cruelty and torture, it is the tendency of the book itself that is in his view finally obscene, corrupt, that is, rotten, and depraved, that is, unnatural and degrading. He believes that the jury will find that such literary merit as it has—and he does not intend to deny that it has some—does not outweigh the unpleasantness, the perversity, of its actions and its conclusion.
“It has been said,” says Sir Augustine, “that in the trial of D. H. Lawrence’s Lady Chatterley’s Lover it was Lady Chatterley herself who was on trial, for her adultery, for the fact of her sexuality. In the case of Babbletower it is the prisoner in the dock who is on trial, his imagination, the world he created, the tendency of the messages he offers. Babbletower is a book without hope. Its slender narrative turns on the decision of a group of people with vaguely French names to go and found a community in ‘freedom’—‘freedom’ in this case meaning complete freedom of sexual expression, no matter how disgusting or perverted that expression may be. This ‘freedom’ degenerates into licence and into cruelty, madness and destruction. The tortures and humiliation—not only of grown men and women, but of little children—that follow, are described in lurid and superfluous detail. The word ‘pornography’ is derived from two Greek words, porno, a prostitute, and graphein, to write. It has been defined as writings about whorehouses and prostitution. It has also been defined as ‘the writings of prostitutes.’ You may think, when you have read Babbletower, that it is simply the product of a depraved and dirty imagination. You will be told, I am sure, by the Defence, that it is a very moral book, showing that licence leads to cruelty and repression. You will make up your own minds about this. You may come to the conclusion that the so-called ‘moral story’ is no more than a thread on which to hang writings that titillate, that exacerbate, the darker and nastier imaginations of men. You may be told the story is tragic and terrible; you may wish to retort that it completely lacks what Aristotle called catharsis, the purging of pity and terror. It is a book that begins, and remains, merely nasty and disturbing. In the opinion of the Prosecution, it arouses unpleasant, worse than unpleasant, feelings—it stirs up the worst instincts of men, where the sexual urge meets the urge to be cruel. You will hear psychological evidence from both sides about this matter. I will say no more now.
“Lady Chatterley’s Lover, ladies and gentlemen, was felt to be an offence to public decency because it described sexual acts explicitly, and because it used four-lettered words which are felt to be part of a vocabulary proscribed by our society as a whole. It was mixed up with feelings about class and the nature of marriage. Many eminent witnesses argued that it was tender—”
Mr. Hefferson-Brough objects. Comparisons as to obscenity between one book and another are not admissible.
The judge says they are admissible if the point in question is one of literary merit, and not simply of comparative obscenity.
Sir Augustine says that in practice this is a very fine tightrope to tread. He says that he wished merely to observe that the kind of problem raised by Babbletower was different from the problems of love, marriage and language raised by Lady Chatterley, who was acquitted. It was a problem of cruelty and perversion. He will move on to his next point, which is one concerning the possible or probable readers of the text. The Act speaks of “persons who are likely, in all the circumstances to read, see or hear the matter contained or embodied in it.”
He reminds the Court that the country has just lived through the trial of the Moors Murderers. He asks the jury, when they listen to the arguments that they will undoubtedly hear about literature, about fiction, not inciting readers in general to bad acts, to remember the library of Ian Brady, to remember Myra Hindley’s participation—learned from Brady, who learned it from books, at least in part—in acts derived imaginatively from books, from The Scourge of the Swastika and from the Marquis de Sade. Myra Hindley was possibly a normal young woman before this relationship. The works of the Marquis de Sade are certainly in Mr. Jude Mason’s library. His Babbletower, his isolated “Tour Bruyarde,” is plagiarised from the terrible Marquis’s Château de Silling in The 120 Days of Sodom. “Do not think, ever, ladies and gentlemen, ‘Well, it is only a book.’ Men and women are greatly moved by books, their lives may be enriched, changed, or ruined by books. Dictators seize and burn books, because books are dangerous. That fact too will be advanced, no doubt, as a reason for not condemning Babbletower. But they are right, the dictators. Good books are dangerous to bad men, and by the same token, bad books are dangerous to good men.”
Godfrey Hefferson-Brough rises to open the case for the defence of Bowers and Eden. He is a fleshy man, a red man, a hairy man under his false hair. He is not humorous, he is not beguiling, he has a tendency to thunder. He appears throughout the proceedings to be a prosecuting counsel who has strayed into the realm of defence, and is happiest attacking the opposition. Augustine Weighall’s style is sweetly reasonable and understated: Hefferson-Brough would like to make rhetorical flights. It is significant that he, like Martin Fisher, the Bowers and Eden solicitor, is an “Erstwhile Hog,” which is the arcane term for an Old Swineburnian. Rupert Parrott, too, as we have seen, is an Erstwhile Hog.
He speaks a panegyric about Bowers and Eden. They are an old firm, a respectable firm, dating back to the old days of John Murray, John Blackwell, and George Smith. A specialist firm, whose field has always been religion, theology, social thought, with a lighter section of belles lettres and fiction, fiction appropriate to the gravitas of the house, not salacious fiction, not avant-garde fiction, not shockers and penny dreadfuls. A few donnish detective stories, with perhaps an inquisitive vicar, or vicar’s lady, as the sleuth, a few novels lately like Mrs. Phyllis Pratt’s excellent Daily Bread about the daily lives
of the clergy. Mr. Rupert Parrott, the recently appointed managing director of this small firm, is young, but old for his years, a churchgoing Christian, a happily married husband and father, the dynamic successor to a perhaps dozy, perhaps out-of-touch board of directors. He has tried to expand his list to include burning concerns of the moment, things nowadays hotly debated, new strains of theology, works on the Holocaust and its causes, works on the Samaritans, on new forms of social help for the despairing, works also on psychoanalysis and psychiatry, on sociology and philosophy, on the pros and cons of new things like psychedelics and pop music, serious analyses of these things, up-to-date and responsible.
Babbletower and its author came to Mr. Parrott’s attention through a literary friend who read for him, and whose judgement he trusted. He saw immediately that it was a controversial book, a book that would arouse strong feelings, a book that was strong meat, yes, very strong meat for readers to digest. But he formed the view—“and it is a view I believe you will share, ladies and gentlemen, when you have read the book”—that it was a powerful and original work, a satirical work about the follies of utopian projectors, and about sexual optimists who believe anything goes and all is permitted. He formed the view that it was—despite its frankness, its full-blooded depiction of the consequences of folly and wrong thinking—he formed the view that it was an intensely moral work, a work attacking just those aspects of our society which the 1959 Obscene Publications Act is itself designed to attack, the vacuously pornographic, the licentious, the depraved and the corrupt. For the depraved and the corrupt in Babbletower, as you will see, ladies and gentlemen, receive short shrift, they meet a terrible reckoning. This is a book designed to bring home to you the disgusting nature of the world of the depraved and the corrupt in our own society—in all societies—and if you are disgusted, the book has worked its work, for it is not designed to give you a warm and comfortable glow of pleasure. No, it is designed to warn, to alarm, to avert. There are episodes, there are tendencies in our society which it is needful for wise men to know about, shun, and do away with, and it is the knowledge of these tendencies—and a righteous horror—that Babbletower promulgates.