The three women jurors seemed the most absorbed. One had a deep frown of concentration and was tapping a pencil between her teeth. I remembered a lecturer saying to me once: ‘Never forget the public – any public – has only so much capacity for absorption. You’ve got to give them breathing space – even repeat yourself – otherwise half is lost.’
‘What you must ask yourselves, members of the jury, is this. Was the arrangement such that it would suggest to a normal beholder – not a member of any particular set but any average beholder – that Mrs Marnsett’s portrait was included among the courtesans? Would you yourself take such a hanging to have such an imputation?
‘If you consider that the arrangement of the pictures as set out for you is such as to impugn the plaintiff’s moral character, then you are in duty bound to return a verdict of libel. Remember particularly that the defence has not been based on a justification of the alleged libel. The defence doesn’t claim that Mrs Marnsett is an immoral woman. It merely contends that no libel was intended and that no libel was in fact committed.
‘The fact that the defence has tried to show that Mrs Marnsett moves in a circle which would treat such an assertion lightly mustn’t have the slightest effect on your verdict: it can only affect the question of damages or the allocation of costs. Similarly, counsel for Mrs Marnsett has attempted to prove ill-will on the part of Mr Stafford. But the issue of libel or no libel is apt affected by the question of ill-will either. A man may libel another without ever having heard of him. Innocence is no excuse. If the arrangement of the pictures was such as to cast a smirch upon the reputation of the plaintiff, irrespective of intention on the part of the defendant, then you must bring in a verdict of libel unswayed by any other consideration.’
I glanced sideways at Kidstone. Aware of my glance, he pulled his mouth down at the sides.
‘If’, said Mr Justice Freyte, ‘having weighed the relevant facts – and no others – you come to a clear decision that a libel has been committed, then, and then only, can all the other circumstances of this action be taken into account, for the question of damages then arises. Now in the majority of cases where libel is proved, damages can be computed upon some basis provided by the evidence – loss of trade and the like. Where, however, reputation only is involved, no such basis exists. It doesn’t follow for that reason that they need be less. Mr Justice Best in an early judgement said: ‘‘If we reflect on the degree of suffering occasioned by loss of character and compare it with that occasioned by loss of property, the amount of the former injury far exceeds that of the latter.’’ It’s on this point that the rest of the evidence you have heard has such a vital bearing.
‘So far as actual evidence of mental distress is available, you have, of course, the evidence of the plaintiff, corroborated so far as physical symptoms go by the evidence of her doctor. You must, however, remember that Doctor Sowerby in cross-examination has admitted that the symptoms complained of by Mrs Marnsett were of a character identical with those for which he had treated her last year. All you have got therefore is evidence of the recurrence of a physical ailment in the plaintiff which may or may not have been brought on or aggravated by the worry and distress of this case. If, however, the plaintiff is a woman of good character and responsible position, mental distress may be fairly assumed to have resulted.
‘Now the defence has been at pains to suggest, and the plaintiff at pains to refute, the idea that Mrs Marnsett moves in a circle in which a comparatively vague imputation of immorality would be treated as of no importance whatever, that, in fact, Mrs Marnsett herself in other circumstances would treat the imputation with levity and disregard. Mrs Marnsett has admitted that she mixes with an advanced set, but she claims that she doesn’t associate herself with their most advanced ideas. This would seem a reasonable claim in so far as there is a considerable difference between condoning immorality in others and being accused of it oneself. Nevertheless, in weighing up any question of damages this is a very pertinent question: the society in which the plaintiff moves is very much a part of the plaintiff’s life and background. The mental distress resulting to a woman who mixes with the ‘‘bright young people’’ of today can safely be assumed to be very much less than that, say, resulting to the wife of a clergyman or one whose part in society serves different and more substantial ends.
‘With this in mind, the defence has put forward another suggestion: that what the plaintiff in her heart is really claiming damages for is not the alleged insult to her moral character but the insult to her facial beauty, that her outlook and vanity is such that if this portrait were a flattering one she wouldn’t have objected wherever and in whatever company it had been hung.
‘But for one circumstance I should be inclined to dismiss this argument of the defendant as lacking any corroborative evidence. Mrs Marnsett’s annoyance on seeing this portrait cannot be taken as proof of an overweening vanity. A certain natural vanity, when not carried to excess, is becoming and even desirable in a woman; and with the portrait and the original still before you it is not necessary for me to point out that the painting is unflattering in the extreme. It is indeed only to be expected that Mrs Marnsett should dislike the picture for itself. It is not unnatural that the picture should become the subject of a quarrel between her and Mr Stafford. But the one circumstance, it seems to me, which entitles this argument to be considered with careful attention is the fact that Mrs Marnsett attacked the painting with a palette knife. The testimony is at some variance, but there seems to be no doubt that such an incident did take place. What I ask myself, and what you must ask yourselves is this: is such an act, of attacking a finished portrait with some intention to deface it, the act of a reasonable woman deeply hurt and upset by what she considers is a caricature of herself, or is it the unreasoning reaction of a vain society woman accustomed to the flattery of men and suddenly overcome with rage and disappointment at being confronted with this strange cynical vision instead of the idealized portrait she expected?’
His Lordship sorted out his notes and glanced round the court.
‘For the purpose of assessing damages it is relevant to consider whether any malice existed on the part of the defendant, and for the purpose of assessing whether such malice did in fact exist, evidence of almost anything that can throw light on the relations between the parties is admissible. What further facts have we to weigh?
‘Counsel for the plaintiff has also emphasized the initial quarrel over the portrait, and claims that the portrait itself is proof of the state of the defendant’s mind, further that it was spite and ill-will arising out of this quarrel which induced Mr Stafford to hang the portrait in the Ludwig Galleries and to insist on its being hung among the courtesans. Mr Stafford has admitted that Mrs Marnsett twice offered to purchase the portrait at a high price and that he refused. Did he do this out of ill-will towards her or out of a desire to see his painting hung and commented on? Mr Stafford in evidence has said: ‘‘I paint what I see.’’ Are we in a position to draw inferences from an artist’s creative vision?
‘Furthermore, if a measure of vanity is natural in a woman it is also natural in an artist. We have had the evidence of other artists that this portrait in their opinion is a work of high merit. There’s no reason to believe that Mr Stafford didn’t feel the same. He has said that he wished to obtain the reaction of the critics – a natural and understandable wish. He has given as his reasons for hanging the portrait as he did, first the quite unanswerable one that it had just been returned to him by the committee of the Royal Academy, second that only in that position in the Ludwig Galleries did the portrait catch the strong light it required. He has said that it never occurred to him that any objectionable imputation should arise out of his hanging the picture where he did.
‘On this point I am inclined to believe him. Artists are notoriously people – can I say it without offence? – with single-track minds. What I mean is that they do one job at a time with complete concentration, that is a necess
ity of creative work. Well, is it not possible to conceive of Mr Stafford going to the Ludwig Galleries, the picture in his hands, and deciding instantly where it must be hung, all other considerations being ignored?
‘Besides, if malice and not impulse had actuated him, would his revenge have not been a far simpler matter? We have it admitted that Mrs Marnsett took strong exception, and reasonable exception in my view, to the public exhibition of this portrait. Would not a man actuated by malice have taken care simply to exhibit the portrait? Against that Mrs Marnsett would have had no reasonable redress. Why invite a lawsuit when a free revenge lay ready to hand?
‘Weighing up the testimony of all the witnesses most carefully, it seems to me very doubtful, despite the existence of the original quarrel, whether any malice existed in the hanging of the picture.’
I glanced at Kidstone, but this time he gave no answering sign. He in turn was watching the jury.
‘Therefore consider your verdict’, said the judge. ‘First, does a libel exist in the fact of the picture’s exhibition as presented to you? For this decision clear your mind of all consideration, of the degree of injury sustained and the possibility of malicious intent. If in your opinion a libel does not exist, then no question of damages arises; and it is customary to award full costs against the plaintiff. If in your opinion libel does exist, then consider the amount of the injury suffered by the plaintiff. If in your opinion libel does exist but no injury has been suffered, contemptuous damages may be brought in with full costs against the plaintiff, or a division of costs between the contestant parties. If in your opinion some injury has been suffered, the costs will go against the defendant with such damages as you, as representatives of the public, see fit to award.’
IV
We all got up while the judge left. Then we watched the jury file out. I wondeted how I should feel if I were one of them and had brought a completely unbiased mind to the case.
‘Very fair’, I heard Mr Hart say behind me. ‘Very fair, Mr Stafford. We certainly can’t complain.’
‘You can always rely on his Lordship for that’, said his junior in an undertone. ‘Mind you, he didn’t leave much for the jury to decide. Mm … mm … mm … mm …’
I glanced sidelong at Kidstone again. Damn these lawyers with their polite poker faces! Paul was still talking to Hart, but I couldn’t overhear their conversation. I sat quiet and said nothing and asked nothing, listening to the murmur of conversation and the stir of the court.
The graven image beside me stirred.
‘Shouldn’t be long now’, said Kidstone.
‘Oh’, I said. ‘What if the jury disagrees?’
‘It shouldn’t.’
‘I suppose you know what they’re deciding’, I said unpleasantly.
‘Yes, probably. Damages and costs.’
‘So we’ve lost the case?’
‘Technically, yes, I think so. There wasn’t much chance of anything else. Morally, no; unless the jury goes against the judge.’
I glanced over to where Diana sat gently bending the fingers of her gloves. Did she also anticipate the verdict? How would the outcome affect her? Sir Philip Bagshawe was packing up his papers before departure. Probably he had another case to scan in preparation for the following morning. Somebody else’s grievance, spite or cupidity couched in the formality of legal terms. Strange how these men could work up a temporary and superficial interest and if necessary passion for each separate suit. They were like actors with a large repertory to draw upon. ‘When I played Bassanio, laddie, I shall never forget …’ ‘ Now in the case of Greengraves versus Greengraves and Long, old boy …’
There was the rap of the hammer, and I got up as the judge came in. The jury filed back. Well, Kidstone had at least been right as to the length of time they would take.
The clerk of the court addressed them. The foreman looked very self-conscious, standing there with the eyes of the whole court on him.
‘We have’, he replied in answer to the question whether they had reached a unanimous verdict.
‘Do you return a verdict for the defendant or for the plaintiff?’
‘For the plaintiff.’
‘And what damages do you award to the plaintiff?’
‘We think the defendant should pay her fifty pounds damages and bear the costs of both parties.’
V
As we came out of the Law Courts some twenty minutes later a small crowd of Paul’s friends raised a cheer. Reluctantly but with tolerant good humour he allowed himself to be surrounded. These people had ‘come to his libel action’ in the way they would come to his play, if he ever wrote one. In a sense they were his fans, so now for a little while he must beat their opinions and comments. This was the price of fame. He had already arranged to see Kidstone in the morning and now he jerked his head at me to intimate that I should rejoin him in a few minutes. But I shook my head and pointed Citywards and mouthed at him, ‘ See you Sunday.’ He nodded and then turned smiling to answer the question put to him by one of the people near him.
I walked down Fleet Street. Hart and the others seemed well satisfied with the outcome, but it seemed to me that, although we had in a sense secured a moral victory over Diana, the fact that all the costs would descend on Paul rendered the decision punitive without anyone being better for it except Mr Hart and his colleagues.
Although Paul’s sea voyage had done him an amazing amount of good and the consequences had not yet expended themselves, yet his return to London must sooner or later surely obliterate its effects. The rough, lonely holiday had given him the break he desired, the complete change he needed.
Yet his return to his normal social round, his coming back immediately and more fully than ever into the public eye, meant that he had stepped once more into the very centre of the stream.
Unreasonable to expect that he would not be carried along.
Chapter Fourteen
Paul called for me at ten on the Sunday and we set off for Newton. As we drove out through the suburbs I said: ‘Have you heard what the costs of the action are going to be?’
‘Freeman thinks about nine hundred pounds.’
‘Diana’s done nobody but the legal profession a good turn.’
‘Still, I don’t altogether regret it now it’s over. I’m thinking of painting a series of famous stooges and hanging Brian Marnsett in the middle of them.’
‘Well, it’s an expensive form of pleasure.’
‘You never know how things will turn out’, said Paul. ‘ My net loss is going to be negligible. De Vere’s, the New York art dealers, approached me yesterday through their London office. They’ve a client who wants to buy the picture. I thought I’d choke them off and said seven hundred guineas, and to my surprise they cabled an acceptance. The picture’s good, but it isn’t worth that. But then, it isn’t really intrinsic merit which counts in a case like this, it’s publicity value.’
‘You’d have got a thousand if you’d asked it. Then the affair would have shown a profit.’
‘It’ll show a profit as it is’, said Paul. ‘I’m snowed under with commissions. Painting portraits is like rolling a boulder down a hill; the merry devil to get to start, and then when it really gets going you just can’t stop it.’
‘What are you going to do?’
He smiled. ‘It’s a shame to turn away good money.’
‘Well, I’m glad you no longer feel stale.’
He didn’t confirm or deny this. ‘I shall have to engage a private secretary or something for my correspondence. Some tin-pot society has asked me to go and lecture on Van Gogh. As if I knew anything about Van Gogh. I don’t even know where he was born. I’ve a notion of what he was trying to do in paint, but I haven’t the gift of the gab to put it in words.’
‘Get Lady Lynn to write it for you’, I suggested. ‘You’d be hailed as the revolutionary artist of the age.’
We drove on. It seemed a good time to talk to him about Olive. But what to say? ‘ I slept with yo
ur wife last week and she wants you back’? ‘I saw Olive last week and she’s willing to try again’? ‘Now that this beastly action is out of the way and we can forget all about Diana Marnsett, why not try to repair your marriage? It would be common sense, it would be good economics, and I’m pretty certain Olive would co-operate’?
Would there be any sincerity in any of this? My encounter with Olive made it harder for me to intervene. The event stood between Paul and me, even though only I knew of it. And the memory of the event was a deterrent. Although there had been pleasure enough and satisfaction in it, particularly the satisfaction of uncovering the mystery of her appeal, there had been a sour edge to it, the edge of her personality, which left the memory a little ragged and raw. She had warned me that it was not the beginning of an affair between us, and with that, privately, I was in entire agreement.
On any grounds, how could I advise Paul to try again when I felt certain the attempt would only lead to more acrimony and failure? So we drove on unspeaking, and later in the drive I discovered it would have been a useless attempt anyway.
We made good time to Reading, and stopped for petrol there. There had been morning mist with a heavy dew that looked like frost. Now a fitful sun was helping the trees to push through, some already gaunt, others still heavy with the old leaves they were beginning to shrug off. It was good to be away from London noise again.
As we got in the car again Paul said: ‘I want to talk to you about Holly.’
‘Oh?’
‘Yes … I – want to marry her.’