‘A Small And Select Circulation’

Harold Rubinstein: The Life and Work of a Literary Lawyer

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Introduction. Law and Literature have long been bed-fellows. Think of the song-writer Frederic Weatherley who wrote ‘O Danny Boy’ and ‘Roses of Picardy’ and ‘The Old Brigade’ when he was not working as a barrister. Post Second World War there was Michael Gilbert, crime novelist and solicitor, who had such clients as Raymond Chandler seeking advice on their British rights. Between the two, in the inter-war period there was the solicitor and playwright Harold Frederick Rubinstein, a figure important in George Orwell’s early literary career. Here I look at this now largely forgotten man’s life.

We will find, though, that unlike Gilbert and Chandler, Orwell tended to come in contact with Rubinstein not as a client, but required to respond to professional advice given to Orwell’s publisher, reading his manuscripts for libel, slander and general misfeasance.

Orwell and Rubinstein. A Kind of Compulsion. Orwell mentioned Rubinstein several times in a typed 17 December 1934 letter to the publisher Victor Gollancz about requested alterations to Orwell’s novel A Clergyman’s Daughter. Referring to the pages of his manuscript (‘P45’ etc) he wrote that:

P45. I have altered the statement that Mr Warburton “tried to rape” Dorothy, as Mr Rubinstein objected to it.

P292 and also pages 265 and 262. I have cut out the suggestion that Mr Rubinstein objected to, that if Dorothy lost her job she would be on the streets again.

In the final chapter I have made minor alterations, but have not changed the general trend of it. I had myself thought it a very weak ending, but the particular point raised by Mr Rubinstein, that a friendship between a girl like Dorothy and a man like Mr Warburton was incredible and that it was unlikely he would take any interest in her, had not struck me. I hope that the line or two I have put in on P46, remarking on the fact that pious and immoral people appear to have a mysterious attraction for one another, will make this relationship more plausible.

In a 10 January 1935 letter to Gollancz about the manuscript of  A Clergyman’s Daughter Orwell mentioned Rubinstein again, writing that:

P75 Mr Rubinstein crossed out the remark that the paper called “The High Churchman’s Gazette” had a “remarkably small circulation”. I was not aware that any paper of this name actually existed. However I have altered “a remarkably small circulation” to “a small and select circulation”.

On 1 February 1935 in a handwritten letter to Gollancz Orwell wrote that: There is one other point not referred to by Mr Rubinstein but which has occurred to me since reading his letter.

Orwell and Gollancz then entered into a discussion about what would appear to be Orwell’s previous novel, Burmese Days. That, though, had first appeared in the United States where legal provisions were different.

On 28 February 1935 Orwell wrote in a typed letter to Gollancz about revisions to Burmese Days: The following changes specifically asked for by Mr Rubinstein have been made. These were so that Orwell and Gollancz could not be sued for libel if his fictional Kyauktada was too similar to the real Burmese town Katha where Orwell had been a police officer.

A copy of Burmese Days in the library of Darcy Moore

In January 1936 Orwell mentioned Rubinstein when discussing changes to his new novel Keep the Aspidistra Flying. He wrote again (in an 11 March letter to Victor Gollancz Ltd while he was in the north of England researching The Road to Wigan Pier) that: With reference to the attached letter I have made all the alterations suggested by Mr Rubinstein.

On 11 March 1936 Orwell wrote to Leonard Moore in a typed letter that: I have made all the alterations suggested by Mr Rubinstein but have left the others mentioned by the Fanfare Press which Mr Rubinstein says “do not seem to matter in the context”; and But I presume that Mr Rubinstein’s suggestion covers what is necessary.

In fact, during the three months that he was in the north in the spring of 1936, working on the new book commissioned by Gollancz, which would be published eventually as The Road to Wigan Pier, Orwell was regularly at work revising Keep The Aspidistra Flying to meet the demands of the legal and editorial team at Victor Gollancz Ltd. Apart from Rubinstein, the other figure pressing Orwell for textual changes was Norman Collins, whom Orwell would meet again in different circumstances.

A Patriot After All. George Orwell mentioned Harold Frederick Rubinstein implicitly on 28 January 1940 when discussing the possible libel risks in Inside the Whale and Other Essays. These included derogatory references to the Catholic convert novelist Evelyn Waugh. Strangely enough, for all Rubinstein’s immersion in the literary world he had not caught the implications of Orwell’s mistake about the author ‘Frank Richards’: Orwell had thought it could not be a single person, and apparently Rubinstein did not know this either.

Inside the Whale and Other Essays (Wikipedia)

Early Life. Harold Frederick Rubinstein was born on 18 March 1891 in Brompton, an area of Kensington. He was one of the four children of Joseph Samuel Rubinstein, a solicitor, and Isabella (Bella) Alexandra Rubinstein née Marks. Stanley Jack Rubinstein, Harold’s older brother, was born in 1890; was a solicitor specialising in copyright law; was a novelist and historian; and died in 1975 aged eighty five.

Harold was educated at Cheltenham and in France and Germany. He became a solicitor working for his father’s practise, Nash and Rubinstein, specialising in publishing cases, particularly reading to check for possible libels, copyright breaches, and obscenity. Apart from deliberate libels any namesake of a bad or badly behaved character could sue for libel. The definitive case was that of Artemus Jones which is worth an article in itself. Only if a name was very common was it safe to use it. Mr Nash of ‘Nash and Rubinstein’ was Leslie Chessborough Fleetwood Nash, who retired in 1943, suffered from depression, and in 1950, aged sixty nine, killed himself by lying down on a railway line and letting a train run over him. The Coroner’s Jury returned a verdict of suicide while the balance of the mind was disturbed. The Nash and Rubinstein law practise continued using this name for some years after Mr Nash died. Solicitors and other professional practises sometimes do this, but the Rubinstein practise eventually used other partner’s names.

As a solicitor Harold had clerks and later, as a partner, junior solicitors to do much routine work. He usually worked set hours and wrote at evenings, weekends and holidays. His Who Was Who entry listed his only recreation as homework.

Theatre: The Horniman Theatrical Company performed Harold’s first play Consequences at the Gaiety Theatre* in Manchester in 1914.

The First World War. Harold Rubinstein was a Private in the Royal Army Medical Corps (the RAMC) in the First World War. As a Cheltenham old boy he could have become an officer. Joining the RAMC was possibly his alternative to conscientious objecting and with the likelihood of being gaoled which is not a good career move for any lawyer.

Marriage and Family. On 5 February 1919 Harold Frederick Rubinstein, twenty eight, a solicitor, married Lena Naomi Lowy at the West London Synagogue, Marylebone, London. Her father Ernest Daniel Lowy was a stockbroker. Victor Gollancz’s wife Ruth was Lena’s sister; so Gollancz and Rubinstein were brothers-in-law. Harold and Lena had three sons:

Michael Bernard Rubinstein was born in 1920; studied at St Paul’s School; served in the Royal Artillery in the Second World War; was a Captain; lost his hearing in one ear; joined his father’s law firm in 1948; despite his disability was involved in the musical world and the education of young musicians; married a ballet dancer Edna Joy Smith Douthwaite in 1955; had four children; and died in 2001 aged eighty.

Michael Rubinstein’s legal star was to rise when, in 1959, Penguin published the unexpurgated text of D. H. Lawrence’s novel Lady Chatterley’s Lover. The publisher went to a six day trial in October –November 1960 for obscenity. The judge was Sir Lawrence Austin Byrne. The prosecution counsel were John Mervyn Guthrie Griffith-Jones, a Second World War Military Cross winner, and his brother-in-law Stephen Alistair-Morton. They were instructed by the Director of Public Prosecutions Sir Theobald Matthew. The defence counsel were Gerald Austin Gardiner QC, Jeremy Nicolas Hutchinson, a Second World War Royal Navy veteran, and Richard Du Cann. They were instructed by Michael Rubinstein of Rubinstein and Nash who did much of the hard work in assembling testimony to the alleged literary merits of Lady Chatterley’s Lover.

This defence succeeded because the prosecution counsel were foolish. The lead prosecution counsel Griffith-Jones asked the jury: Is it a book that you would even wish your wife or your servants to read? It is unlikely that any of the nine men and three women on the jury had servants. In 1960 only the upper classes and the nouveaux riche employed domestic servants. This foolish statement has been much misquoted. Griffith-Jones did not ask the jury if they would like their wife or their gamekeeper to read this book. He probably did not employ a gamekeeper but he probably had servants.

John Daniel Rubinstein was born in 1923; joined the Royal Canadian Air Force in the Second World War; was a Warrant Officer and Air Observer; died of polio in Benghazi RAF Military Hospital on 30 August 1943 aged twenty; and was buried in Benghazi Military Cemetery.

Hilary Harold Rubinstein was born in 1926; studied at Cheltenham and Merton College Oxford; served in the RAF 1944-1947; joined his father’s law practise; became a literary agent; in 1955 married Helga Kitzinger a marriage guidance counsellor; had four children including the literary agent Felicity Rubinstein; and died in 2012, aged eighty six.

In 1959 did Michael Rubinstein look to his father for advice? For his father had been the defending solicitor in the outstanding literary case of 1928.

The Well of Loneliness. Harold’s most notable legal case was in 1928. While male homosexuality was then unlawful lesbianism was never illegal in Britain. Jonathan Cape published Radclyffe Hall’s (Marguerite Antonia Radclyffe-Hall’s) novel The Well of Loneliness in 1928. It concerned lesbianism and was set against the background of the First World War. James Douglas the Sunday Express editor, a stern moralist and muscular Christian, began a campaign to ban this book with a 19th August 1928 editorial calling for Cape to withdraw it; and for the Home Secretary to ban it if Cape refused to withdraw it. Jonathan Cape set a copy of The Well of Loneliness to the Home Secretary William Joynson-Hicks, a Tory populist and stern moralist, offering to withdraw it if he objected to it. He took two days to decide to ban it; and to prosecute Cape unless they withdrew it. Jonathan Cape ostensibly stopped publication but secretly leased the rights to The Well of Loneliness to Pegasus Press a French English language publisher. By 28 September Pegasus Press were sending copies to the London bookseller Leopold Baruch Hill who distributed it. Sales were brisk because of the massive publicity.

The police and customs officers began confiscating imported copies of The Well of Loneliness despite protests from the Chairman of the Board of Customs, Sir John Anderson. Jonathan Cape and Leopold Hill were summoned to appear at Bow Street Magistrates Court to say why copies of it should not be destroyed, The trial opened on 9 November 1928. Harold Rubinstein as a defence solicitor wrote to 160 possible defence witnesses. Most excused themselves made but about forty turned up. The defence counsel were William Norman Birkett and James Benjamin Melville.

The star defence witness, Norman Haire, an Australian gynaecologist, sex expert and homosexual, said that one could not become a gay or lesbian by reading about these practises, any more than one could contract syphilis by reading about it. On 16 November 1928 the Bow Street Magistrate Sir Henry Chartreuse Biron ruled that The Well of Loneliness was obscene. That it was well written worsened matters.

Jonathan Cape and Leopold Hill appealed to the London Court of Quarter Sessions. The Attorney General Thomas Walker Hobart Inskip, the prosecutor, read extracts from The Well of Loneliness. The twelve magistrates on the bench, who had no copies and relied on his evidence, took five minutes to condemn it. In 1949 it was republished without a stir, then in 1974 BBC Radio broadcast it as their Book at Bedtime.

The Playwright. In his spare time Harold continued playwriting. The plays he had published between the wars were:

1. The spirit of Parsifal Robinson, first performed by the Stage Society in 1919, a tragi-comedy about a sensitive young man whose eccentric family ruins his life

2. Old Boyhood was one of three plays performed by the Curtain Group at the Lyric Theatre**, Hammersmith, on Sunday 14 December 1919. The Monday 15 December 1919 Times called it a bright and amusing play. It asked if man was ever happy. In a public school setting a schoolboy, a young man, a middle aged man and an old man all grouse. The other two plays were (Eric) Ion Swinley’s The Lifting of the Dark; and Jack Edward’s The Disciple.

3. Shakespeare (1921) a play about William Shakespeare was co-written with Clifford Bax a playwright, journalist, critic, editor, poet lyricist, hymn writer and translator.

5. What’s Wrong With the Drama (1923) consisted of five one act plays – The Theatre, A Specimen, Repertory, Arms and the Drama and The Grand Guignol.

6. Exodus (1923) was about Moses and the Jewish escape from Egypt. It was written in co-operation with John Halcott Glover a playwright whose other plays included The King’s Jewry.

7. Peter and Paul (1924) was about a wealthy businessman and a famous writer who each envy the other’s lifestyle.

8. Churchill (1925) was about John Churchill, the 1^st Duke of Marlborough, who defeated the French at Blenheim in 1704 and in other battles. It was written in co-operation with Alfred Julian Talbot.

9. Revanche (1925). I could not trace any information about this play.

10. The House (1926) was centred on a house and the people influenced by it. It got mixed reviews.

11. Plays Out of Time (Putnam’s and Sons, 1930) was a collection of three plays – Hippodrome Hill, Britannia, and Stephen into Dickens.

12. The Dickens of Gray’s Inn (1931) was two one act plays about incidents in the life of Charles Dickens.

13. Israel Set Free (1936) – five one act plays about Jewish history.

14. Johnson Was No Gentleman (Gollancz, 1938) a half hour comedy written in 1938 and performed on BBC TV in August 1939. It starred Felix Aylmer, Stephen Haggard, Robert Atkins, Athene Seyler, Bruce Lockhard and Hugh Griffith.

In 1928 Rubinstein had a book The English Drama published by (Sir Ernest John Pickthorne) Benn’s Sixpenny Library; and edited Great English Plays (Gollancz).

Personal Tragedy. Lena Naomi Rubinstein died on 5 June 1939 aged forty nine of cancer in Kensington. Her son Michael was with her when she died. He informed the authorities. She left £4,451 13s 10d. Probate went to her husband.

The Second World War. During it Rubinstein continued his legal work and wrote one play – Hated Servants (Gollancz, 1944).

Post War. After the Second World War Rubinstein had these works published:

1. The Fifth Gospel (Gollancz, 1946). This play looks at the Nazarenes or first century Jewish Christians caught between mainstream Christianity and Judaism, or as the Sunday 8 September 1946 Observer put it the violently contending forces of church and synagogue.

2. Four Jewish Plays (Gollancz, 1948) edited by Rubinstein were by the winner and three runners-up in a Jewish Playwriting Competition run by the Anglo-Palestinian Club (sic). The winner was Rabbi Emil Bernard Cohn’s play about the Portuguese Jewish Marrano community which was destroyed by persecution in the sixteenth century. Rabbi Cohn had left Nazi Germany in 1939 and moved to the USA.

3. Six London Plays (Gollancz, 1950) by Rubinstein and Vera Isabella Arlett. These one act plays looked at London from historical to what was then modern times.

4. Bernard Shaw in Heaven was one of two plays performed at the Royal Court Theatre*** in the West End in 1952 at a midnight matinee to commemorate George Bernard Shaw’s birthday. He had died in 1950 aged ninety four. The other was Shaw’s Village Wooing written for two characters in 1933.

The flow of plays paused but resumed in 1965 by which time Rubinstein had semi-retired from legal work and had more time on his hands a common retirement phenomenon. There followed:

5. Unearthly Gentleman (Gollancz, 1965) a trilogy of one act plays about Shakespeare – Night of Errors, One Afternoon in Henley Street, and Gentleman of Stratford.

6. The Drama Bedside Book (Gollancz, 1966), edited by Rubinstein and John Courtney Trewin a journalist and critic, offered selections from two and a half thousand years of drama.

7. Shylock’s End (1971) a sequel to Shakespeare’s The Merchant of Venice got a favourable review from John Courtney Trewin in the Saturday 16 October 1971 Birmingham Post.

8. Prospero’s Farewell – BBC Radio Four Thursday 30 March 1972 11.30 AM to 12 noon. Prospero was a character in Shakespeare’s The Tempest. Robert Lang played Shakespeare.

9. Pembroke’s Mother – BBC Radio Four Thirty Minute Theatre 11.30 AM – 12 noon Wednesday 10 April 1974; and 15.05 PM- 3.35 PM Saturday 10 July 1976. According to the 10 July 1976 Birmingham Post it was the first of three plays by H. F. Rubinstein (1891-1975) about Shakespeare’s life and times. William Herbert, 3^rd Earl of Pembroke, a courtier and patron of the theatre, was important in Shakespeare’s life. The 3^rd Earl of Pembroke’s mother Mary Herbert née Sidney, the Countess of Pembroke, was a well -educated and well-connected writer and literary patron.

The End. Harold Frederick Rubinstein died on 12 June 1975, aged eighty four, in Kensington of a heart attack leaving £27,716. His son Hilary informed the authorities of his father’s death.

* Annie Elizabeth Horniman founded the Horniman Theatrical Company in 1908. Her father Frederick John Horniman, a Congregationalist tea merchant, founded the Horniman Museum in South London. The Gaiety Theatre, Manchester, was founded in 1884 as the Comedy Theatre. Annie Horniman bought it in 1908, had it rebuilt and renamed it the Gaiety Theatre. It reopened in 1912; specialised in controversial and innovative plays; sponsored the Manchester School of playwrights; and was demolished in 1959.

** The Lyric Theatre, Hammersmith, was built in 1888 and enlarged in 1895. In 1966 it was due for demolition but there was a campaign to save it and the auditorium was dismantled and reinstalled on a new site near the old one. It reopened in 1979.

*** The Royal Court Theatre opened in 1888; was a cinema from 1935 to 1940; was damaged by Nazi bombing in 1940; and reopened as a theatre in 1952. It presented plays by young and experimental dramatists; and classic revivals. John Osborne’s Look Back in Anger was performed there in 1956.