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Robert Wade; Libelling the dead

(December 01, 2011)

Libelling the dead

It seems to be fairly common ground now that Richard of York - King Richard III of England, who reigned a mere 2 years - was not the horrid, deformed hunchback that he is supposed to have been. Anybody familiar with the plays of Shakespeare as portrayed on the silver screen will remember the almost gleeful and blood-curdling performance of Laurence Olivier. But there seems to be every reason to suppose that the Bard of Avon was just one of the many (Thomas More among them) who saw to it, as the Tudor monarchs continued their long reign, that Richard of York was shown up in the worst possible light. It is a truism that history is written by the victors. After Richard's ignominious defeat at the Battle of Bosworth, the Tudors may well have done their utmost to ensure that his regicide (which was the inevitable result) was justified, by depicting him as a physically twisted and ruthless tyrant. More recently, the Richard III Society has made it its business to try to set the record straight, although I am not sure they stand much chance of displacing the misconceptions of a period in excess of 500 years.

Richard III earliest surviving portrait Earliest surviving portrait of Richard III

Of course, the one thing the Society could not even conceive of doing is to institute legal proceedings for Libel against those who, year after year, in books and plays, perpetuate the story which was arguably so brilliantly concocted by Henry VII and his successors. Libel is one of the two branches of the law of Defamation. To defame somebody is to to lower him in the estimation of right-thinking people. Slander is the spoken word. Libel is the use of some permanent record; such as a book or film or play. Check. No problem there with Deadly Dick. The difficulty lies in one of the other rules covering the subject. It is not possible to libel the dead. Once a person is dead, his reputation dies with him, and becomes fair game for anybody who cares to write about him

Of course, these days, nobody seems to care two hoots whether they write about someone dead or alive. I have seen a number of films purporting to portray the characters of Queen Elizabeth II, the Duke of Edinburgh and the Prince of Wales, and, when I last looked, they were all still very much alive and kicking. I saw a delightful parody of the life of author Jeffrey Archer only a few years ago, showing him in a decidedly unfavourable light, and he is still around, producing best-sellers nineteen to the dozen, despite (or possibly even because of) the period of his life during which he served time at Her Majesty's pleasure. Maggie Thatcher's period as Première was depicted on television not long ago, with actors playing the parts of major political players who are still very much around, as is she. Actress Lindsay Duncan played her as an occasionally vindictive and very bossy woman, not averse to showing up members of her cabinet in front of their fellows (I am definitely not including in this the idiotic and light-headed For Your Eyes Only, when, in the final few frames, Margaret Thatcher - played gorgeously by Janet Brown - smacks Dennis Thatcher's hand before reacting simperingly to what she fondly believes are the advances of Roger Moore's James Bond, but are in fact the love-makings of a parrot).

Whatever the truth or otherwise of these representations of recent history, there may have been rumblings behind the scenes, but I have never heard hide nor hair of an action through the courts against the authors or producers. (Bearing in mind his celebrated predilection for separating people's heads from their bodies at the slightest provocation, I have tried in vain to imagine what would have happened if someone had tried to take off Henry VIII during his life-time in the same way as has happened to our present monarch).

Back in 1927, it was all very different. Society (with a capital S) was a powerful animal, and reputation was all. So, when Captain Peter West wrote a book entitled Portraits and Criticisms, in which he claimed that the famous Victorian Prime Minister, William Gladstone, had made it his custom to "pursue and possess every sort of woman", Gladstone's son, Herbert, made it his business to do what he could to put the record straight. Now we have to be entirely fair to Captain West. Gladstone's association with prostitutes over many years was an open secret. His stated motive was that of reforming them. Doubts had been expressed before as to whether his true motive was something a great deal more salacious. The book was an open statement of what many people had been saying for years. What infuriated Herbert Gladstone was that it was written over 30 years after his father's death, and he had no means of rectifying the situation. Peter West was beyond the reach of the laws of Libel. Or was he?

William Ewart Gladstone

Herbert obviously either had the services of a very skilled lawyer or a talent for looking beyond the obvious - or both. In what was a famous instance of lateral thinking, he adopted a totally different plan. He wrote a letter to the Bath Club - the London Club of which Peter West was a prominent member - denouncing West as a liar, a coward (because he had defamed a dead man) and a "foul fellow". One rather suspects that, nowadays, such a letter would have been dismissed as the apoplectic outburst of an outraged politician. It would probably be read out (to the accompaniment of a few sniggers) at a late-night and bibulous meeting of the committee, and then dismissed, remaining ever after in the archives of the club, gathering dust. There might have been a few "tuts", but life would have gone on as before.

However, manners and morals in 1927 were hugely different. The Bath Club expelled West, and he felt he had no option but to sue Herbert for Libel himself. Later events showed that he had fallen into a trap of his own making. But at the time, let's make no bones about it, Herbert Gladstone had taken a dangerous course. There was no doubt that his words had lowered West in the estimation of right-thinking people. His defence had to be that his words were justified, which meant that he had to prove that what West had said about his father was a lie. How could that be achieved after so many years had expired? Well, achieved it was. Aided by the brilliant advocacy of Norman Birkett, one of the finest barristers of his day, Gladstone won his verdict. The jury found for the Defendant, and added a rider to their verdict that the reputation of William Ewert Gladstone had been completely vindicated. A triumph indeed.

Perhaps there is hope for Richard III after all. Volunteers, please?

Robert Hilary Wade

Associate Solicitor with Keith Evans & Co, Solicitors

Tiverton Chambers

Lion Street

Abergavenny

rob.wade@keith-evans.co.uk

01873 852 239

1 December 2011

Also by Robert Wade:

"Musical Influences", September 2011

"Gloom or Bust", February 2011

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