My Day in Court

by HAROLD J. LASKI

with a Foreword by Judge Charles E. Wyzanski, Jr.

ON THE sixteenth of June, 1945, in the midst of the British General Election, Harold J. Laski, then Chairman of the Labor Party, went to Newark, in the County of Nottingham, to speak in support of the Labor candidate. After Professor Laski and the candidate had spoken, Mr. Wentworth Day, a member of the audience, asked some questions to which Mr. Laski replied. Four days later the Newark Advertiser, in an account of the meeting, reported: -

“ Mr. Day asked the Professor why he had openly advocated ‘revolution by violence’ in speaking at Bishop’s Stortford and Bournemouth during the war. . . . Professor Laski replied that ... if Labor could not obtain what it needed by general consent, ‘We shall have to use violence even if it means revolution.’ When people felt it was the moment for great experiment, for innovation, because when war is over people so easily forgot especially those who had the power in their hands — that was the time for experiment. Great changes were so urgent in this country, and if they were not made by consent they would be made by violence, and judging by the temper his questioner had displaced he would he perfectly naturally one of the objects of violence when it came.”

Mr. Laski’s version of his answer to the heckler was entirely different:

“What I said was ‘it was very much better to make changes in time of war when men were ready for great changes and were willing to make them by consent through the urgency of war, than to wait for the urgency to disappear through victory, and then to find that there was no consent to change what the workers felt was an intolerable burden. That was a way that a society drifted to violence. We had it in our power to do so by consent, that which in other nations has been done by violence.’ ”

In short, the newspaper stated that Professor Laski had used words which could be interpreted as indirectly inciting revolution by violence; whereas Mr. Laski asserted that he had used only such words as pointed out peaceful and constitutional ways to avoid the drift to violence.

Distressed by what he regarded as the distortion of his views, particularly since the report was published on the eve of the General Election, Professor Laski two days later issued a writ of libel against the Newark Advertiser, and further parallel writs against other newspapers.

The case attracted wide attention on many grounds. Mr. Laski was a man of great intellectual attainments. For many years he had been Professor of Political Science at the London School of Economics and at the University of London; he had written voluminously; he had occupied important positions in the Labor Party. The subject on which he spoke at Newark raised in acute form the problem of what sort of changes leaders of the Labor Party would advocate in the days following World War II. And the libel suit which involved these delicate issues came before a most distinguished court and was presented by barristers in the forefront of their profession. The suit was heard by Lord Goddard, Lord Chief Justice of England, and a special jury. It was argued by Mr. G. O. Slade, one of the most eminent authorities on the law of libel, acting for Professor Laski, and by Sir Patrick Hastings, perhaps the leading trial lawyer and crossexaminer of the day, as counsel for the defendant newspaper.

The high point of the trial was the cross-examination of Mr. Laski by Sir Patrick. The lawyer showed a mastery of the professor’s books on political science that would have earned him a degree of doctor of philosophy at any university. And as Mr. Laski was confronted with his own earlier statements, he must have gained a new appreciation of the values of accuracy and precision, and of the risks of rhetorical flourish and dramatic appeal.

As the case developed, Lord Goddard told the jury that he would put to them as the first question: “Was the report in the Newark Advertiser a fair and accurate report of a public meeting?” Only if the jury came to the conclusion that it was not a fair and accurate report would the jury have to decide whether, in view of all of Professor Laski’s speeches and writings, he in truth was, “to put it bluntly, an advocate and an inciter to violence and revolution.”

After forty minutes’ deliberation, the jury returned with its verdict, answering only the first question. It decided that the newspaper report was fair and accurate. Thus, not only did Mr. Laski lose his case and have to pay the newspaper the approximately forty thousand dollars it cost to defend the suit, but the jury never decided whether, in the light of his writings and speeches, Mr. Laski could properly be described as an advocate of revolution.

Since the transcript of the trial has been printed in full by the Daily Express, and has with commendable dispassionateness been commented upon by Sir Patrick Hastings in his second autobiographical volume, Cases in Court, there is no need to add much further introduction to the illuminating memorandum in which Professor Laski recorded his own vivid and sensitive reactions to the trial.

It may be worth while to recall, however, one general observation made by Sir Patrick in his autobiography and I venture to suppose supported by most experienced libel lawyers and judges: “Very few people have ever embarked upon a libel action without bitterly regretting their adventure before the case comes on for trial.” If a plaintiff wins a verdict, it is not so often attributable to the righteousness of his cause as to his capacity to make average jurors believe that he has the kind of character and personality which they understand and like. And if the issues are political, even an English jury should not be invariably counted upon to sink all aspects of partisanship and emotion and to act with scientific detachment and objectivity. Can it be that when he brought this suit Professor Laski — that scholar of prodigious memory, incredible range of knowledge, and marvelous powers of organization — had forgotten that he himself in 1924 had sat as a juror in the libel action of O’Dwyer v. Sanbaran Nair? The issue there was whether excesses had been committed in repressing disorder in the Punjab under the general instructions of the plaintiff as Lieutenant Governor.

Describing the outcome of the litigation, Sir Frederick Pollock wrote to Mr. Justice Holmes, “Verdict for plaintiff —one juryman dissenting. The juryman was, if you please, Harold Laski. People here say he is a Communist, which I can hardly believe considering his historical learning. But anyhow I don’t understand in what school he learnt to give a verdict dead against the evidence.”

— CHARLES E. WYZANSKI, JR.

IF HOPE is a stimulant beyond any other, nothing is quite so decisive as failure. You may be beaten in a game and enjoy, nevertheless, the pleasure of combat. You may be “plucked” in an examination and yet know that it is a temporary setback you will overcome in a month. You may even be routed in a skirmish and rest confident in the knowledge that it is only part of a larger campaign. But when you are beaten in the Courts of Law there is a kind of dumb finality about it which I can only compare with the ultimate emphasis of death.

Every element in a civil trial goes to deepen this sense of finality. In the proceedings themselves you are almost bound to feel like a marionette. The speeches on both sides seem remote from the events you knew; they are like blood in a test tube compared with blood in a living person. You know, of course, that it is about you the lawyers are talking, but all that they say seems to have lost its color, its vividness, its sense of life, and to be reduced to a shadowlike skeleton which will never be clothed once more in flesh and blood. You only seem a human being when you are in the witness box and counsel on the other side is speaking about you and cross-examining you.

As you listen to this speech, and watch the masklike faces in the jury box, you wonder if it is about yourself that he is talking. You remember the ardor of the incident, the enthusiasm of your effort the devotion that sent you on a journey of hours for those seventy or eighty minutes of propaganda. Are you really that figure of evil, was your intent always so evil, did you always seem to those political opponents whom you sought to convince an enemy so bitter and so maleficent? Did the pages you wrote over so many years, in so eager an effort to persuade, to find a common mind in which your fellow citizens could share, really read to them all the while like the effort of an Iago pouring some subtle poison into the ears of your opponents? Did that crowd really think you a Catiline, weaving the web of some vile conspiracy, when you thought that what you were urging was the magnanimity that gives birth to conciliation?

The persona which the leader of your opponents makes with so much artifice from the complex alchemy of your character is well calculated to leave you certainly disturbed, and possibly almost stunned — but you must listen to it all with passive restraint. It is your enemies’ hour, and they must enjoy it to the full. It is for the pleasure of this barrage that they have unmasked their batterics, probed all your motives, dissected with all the hostility they could muster ends and ideas that you do not even recognize as your own.

And you are then handed over to that same counsel whose life has so largely been passed in pricking men until they bleed. He performs his war dance about you like a dervish intoxicated by the sheer ecstasy of his skill in his own performance, ardent in his knowledge that, if you trip for one second, his knife is at your throat. He makes a pattern from bits and pieces picked with care from a pattern of life you have been steadily weaving for a quarter of a century to prove either that you never meant what you intended, or that you lacked every element of skill to give the world the sense of your intent. He maves between the lines of sarcasm and insult. His an effort to tear off, piece by piece, the skin which he declares no more than a mask behind which any man of understanding could have grasped the foulness of your purpose, He treats you, not as a human being, but as a surgeon might treat some specimen he is demonstrating to students in a dissecting room.

And, all the time, there sits above you the brooding and impassive judge, to whom this operation is no more than another day in an endless routine of similar days; while facing you are the seven impassive men and women to whom it is a kind of play in which they are half actors, half spectators. You know that no small part of your fate is in their hands; and not the least barbarous pain in this grim process is your tortured doubt of whether they have grasped even a small part of your effort to draw some thread of clarity through the vast web of organized confusion your executioner has sought to thrust upon them. You dare not answer too fully lest they be wearied; and you dare not answer too briefly lest they should misunderstand. And at every moment the fear shoots across your mind that every nuance of this embittered argument is, in fact, a passage in a play they have never seen before and judged quite worthless even before they were chosen — mostly against their will— to witness its staging.

For some time you cease to be the principal villain, and move, though always in the sight of the audience, to the wings of the stage. Then you must watch the effort of your enemies to break in pieces the confidence of the witnesses who have come to support your fate. Mostly, they are simple folk, honest, straightforward, unsubtle. Mostly, they have never been in the High Court before, let alone appeared there as witnesses. Counsel for the defendant is mainly concerned to throw them off their balance, to confuse them, to shrug them with a lift of his shoulders into people about whom he and the jury share a common and private contempt.

When the witnesses on both sides have been done with, you have to sit once more with Buddha-like impassivity while the counsel for your opponent sums up for his client. Here, at least, he is simple and direct; he knows precisely the effect he desires to produce on the jury. He assures them that he will make the complex material that has been put before them so simple that their minds can be at ease and confident. He paints your character in a few incisive sentences. You begin to see the outlines of an evil enemy of the realm, elever enough to dress up his long-cherished stratagems in garments skillfully designed to conceal their nefarious purpose. You are in substance like a figure in one of those Elizabethan dramas which Machiavelli influenced; noble men have worked with you, innocent of the ugly ends for which you proposed to use their alliance. You hear attributed to yourself principles you have never held. You find yourself driven by motives you have never known yourself to possess. You become, indeed, the supreme and ardent enemy of the very cause you have sought to serve. But now, he concludes triumphantly, we have torn the mask off the villain; he can no longer disguise himself as an honorable servant of a great movement; he stands revealed before you as one who has striven all his life to undermine the foundations of social peace.

To yourself, listening to what seems the demented passion of a rhetoric devoid of any content save its appeal to the emotions of men and women ready to see in any proponent of social change the grim outline of a Marat or a Robespierre, your own counsel’s final speech comes as a great relief. If you know his argument by heart, at least it is a profound psychological comfort to hear it marshaled with orderly effectiveness, and to see the vital points of substance given their due emphasis. You feel that the ease with which he pricks the rhetorical bubbles your opponent’s counsel has so lustily blown cannot fail to impress itself upon any men and women with open minds. As he drives home a pattern of events in the shape in which it has become part of your own consciousness, you convince yourself, or almost, that the imperturbable figure on the Bench, trained to weigh evidence, skilled in the separation of fact from fiction, careful to eliminate from his own mind and, if he can, from the minds of the jury, all impact that prejudice may have sought to make—that now, at long last, truth will emerge unscathed from all effort to twist and contort it into shapes you do not recognize.

The judge seems a kindly old man, with a winning smile that lights up his eyes. He speaks with unemphatic quietness, so that, sometimes, you have even to bend forward to catch what he says to the jury in an easy, almost conversational tone. When he tells them of some point the defense has made, or, with a half-amused smile, describes to them the nature of a political campaign, or urges them to realize the passionate care the Bench has taken to safeguard the Englishman’s right to the fullest freedom of discussion, you almost feel that you are back in some pleasant lecture room of an Oxford college where an elderly don is retailing the details of some ancient trial decided long ago.

Then, suddenly, his transition to another part of the evidence makes you wonder when he is going to stress that point in the first part which told so strongly in your favor; how he is going to comment on the curious methods of this witness, the subtle way in which your opponent’s counsel tore endless passages from their context to paint his picture of your ugly purposes. He will not, surely, forget your counsel’s comment on this suggestive point; he cannot have failed to notice that vital combination of circumstances so carefully omitted from the speech in which your opponent’s counsel sought to prevent the jury from seeing the gap it revealed in his case. You cannot believe that he will studiously refrain from noting that the charges made against all you have ever said or written these twenty years not only have never been made before, but, were they true, ought obviously to have resulted in your appearance in the dock at Old Bailey. At some time, you are confident, he will bid the jury take notice of the massive testimony your own witnesses have given without an effort at serious contradiction. At least, so you think in growing uneasiness, he will remember that in your five-hour duel with opposing counsel, you stood your ground, answered with straightforward clarity, did not fall into the traps he laid that you might grow angry or confused or irritated, and so be led into the situation where he is so notoriously able to have a witness at his mercy.

And then, with a sudden gasp, you realize that he is not going to put your ease at all. He makes his point; he is careful always to emphasize to the attentive jury that it is for them, and them only, to choose whether they will accept the points he makes, But they are always your opponent’s points, and you note, almost within the first halfhour of his summing up, that he is conveying, not without some subtlety, what Mr. Justice Holmes meant when he said that judicial decisions depend upon the “inarticulate major premises" of the man on the Bench. And you understand at that stage that the case is lost.

The judge not only hates the opinions you hold, but will explain to the jury that they are dangerous opinions. And since, at your opponent’s instance, the jury is a “special” jury, you know how unlikely it is that they will have an atom of concern for anyone with dangerous opinions. What, you swiftly see, is the real issue at stake is not what was said at some place on a definite occasion, but the fact that you hold unpopular opinions which both judge and jury are convinced it is bad to hold and worse by far to express.

That is the moment when you cease to be an actor in the legal drama, and become one more among the packed spectators in the Court. You know the result of your case. Everything that follows is as regular and automatic as winding up a clock. What had enshrouded you in its air of legal majesty is now like a play upon the stage of which you had read the end before ever you had entered the theater. The actors continue their parts, for the play must be officially closed. But you are already planning what you will say by way of thanks and consolation to your solicitors and counsel, who had worked so hard and been, to your mind, both fair and effective. You are wondering whether there is a back way out of the Court, that you may avoid the relentless stare of the crowds at the door, the inexorable click of the cameramen from the different papers thrust into your face, the comments on the result you are likely to hear if you go home by bus or tube. You pray that some car may be at hand in which you may be hidden from that restless anxiety of the stream of journalists who, with notebooks ready poised, sweep down upon you, like vultures upon a corpse, to seize your private thoughts for a public avid for any sensation even if it take hut three lines to express.

There is no safety for you until you sit at your own fireside. There, at least, without the stare of a thousand eyes, you can meditate upon the shades of meaning in the historic phrase “the equal protection of the laws.”At least you have been given the fulfillment of the Englishman’s right to seek his remedy for injustice and have his day in Court.