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Sins of the Advocate

Frank Callanan

The Ulysses Trials: Beauty and Truth Meet the Law, by Joseph M Hassett, Lilliput Press, 240 pp, €25, ISBN: 978-1843516682

In his lifetime (1870-1924) and ever since, John Quinn, the Irish-American lawyer, art collector and patron of the arts, has had more or less a free pass. With Joseph Hassett’s incisive book the curiously protracted impunity Quinn has enjoyed has at last expired. There were, it is true, always some half-suppressed hints of scepticism. Mary Colum observed that “his artist friends were given to insisting that he probably understood literature, but his snooty writing friends thought it must be painting or sculpture that he understood”. Leaving Quinn’s apartment in New York, Padraic Colum ventured to John Butler Yeats: “John Quinn talked well.” “Yes,” JB replied, “but like all lawyers he exhausts the subject.” That remark is heavy with what John Butler Yeats had to endure in New York as the recipient of Quinn’s benefactions.

It is a tale of two trials. The first arose from the serialisation of episodes from Ulysses in the Little Review, published by Margaret Anderson and Jane Heap. It came after a war of attrition conducted by the office of the postmaster general under the Comstock Act, which extended to the seizure of an entire issue of the Little Review, followed by a notice “BURNED”, in January 1920. There followed a prosecution at the initiative of John Sumner, Comstock’s successor as secretary of the New York Society for the Suppression of Vice, under a New York statute that proscribed the distribution of “any obscene, lewd, lascivious, filthy, indecent, or disgusting” material. It related to the publication of the Nausicaa episode – the distant encounter of Leopold Bloom and Gerty MacDowell on Sandymount Strand. Anderson and Heap, defended by Quinn, were successfully prosecuted in a trial before three Court of Sessions judges in February 1921.

The effective banning of Ulysses in the United States was only undone a decade later, after Quinn’s death. By this time Bennett Cerf of Random House wanted to publish the book in the United States. The New York lawyer Morris Ernst acted. They exploited a provision of the Tariff Act of 1930 that accorded a right of judicial review to the importer of a book seized as obscene, ensuring that a copy of Ulysses sent to Random House was seized. Judge John Munro Woolsey of the New York District Court, in a judgement delivered on December 6th, 1933 held that Ulysses was not obscene. His decision was upheld on the appeal brought by the Attorney General of the United States by the Second Circuit; the majority was made up of Learned Hand and his cousin Augustus Hand, whom Joseph Hassett characterises as “judges of robust intellect and trenchant pen”. Hassett notes the joint appearance of Judge Woolsey and Morris Ernst in April 1935 at an exhibition of books burned by the Nazis in May 1933. When Ernst died in 1976, the New York Times described him as a “witty, tweedy, bow-tied man whose friends included judges and jockeys, bankers and barristers, Presidents and precinct politicians”.

Ernst’s victory cleared the way for publication in England. TS Eliot at Faber remained nervous, and it was Bodley Head which published a deluxe edition of a thousand copies in 1936, with Woolsey’s decision emblazoned at the start as a kind of talismanic carapace.

Joseph Hassett, in his other life a trial-hardened lawyer in the United States, has written a counter-brief. It is remorselessly courteous, even collegiate. It is also devastating. Quinn committed more or less every sin open to the advocate, even if he continued to believe he was acting in the best interests of Joyce (though even that is a problem, as Joyce was not his client). One could simply say he was miscast, but it goes further than that. Quite apart from the peremptory machismo of his aesthetics, he was professionally embedded in a network of more or less Irish-American conservative lawyers and judges. Hassett writes: “His professional livelihood depended on the respect of a network of Irish-American, Catholic businessmen, judges and lawyers, who were likely to be put off by public perception of Quinn as a champion of ‘sex literature’.” These predispositions were “aggravated by misogyny compounded by prejudice against Anderson and Heap’s lesbianism”. Quinn’s advocacy was drastically inhibited by the need he felt to convey a hearty affinity of distaste with the judges before whom he was appearing. Of the argument he engaged in at the trial, Hassett mildly observes that “judicial scepticism is the advocate’s invitation to engage and persuade, not to retreat”.

Quinn was not prepared to countenance adopting the arguments advanced by Anderson and Heap. (Heap had the best line, though not the most legally cogent: Joyce could not be obscene because he was “too religious about life”). Moreover he travestied, insofar as he did not ignore, the considerations that John Butler Yeats urged upon him; though he did, with a grossness one fears was habitual, send him a cheque for eighty-five dollars “as a fee to you as my associate counsel in the matter of ‘Ulysses”’. Yeats underscored the importance of what he called Joyce’s “terrible veracity”. Dante “never shrank from the hideous and the obscene”. It was from Dante that Joyce “gets that terrible hardness, that hardness of which Wilde had so little and Swift too much”. The prompt went well wide of its mark: Quinn at the trial proceeded to contrast “the strong hard filth of a man like Joyce with the devotion to art of a soft flabby man like Wilde”.

Hassett’s retrieval of John Butler Yeats’s assessment is a centrepiece of the book, bringing into play Plato, Pater and Wilde. In eschewing considerations of truth and beauty, Quinn was ignoring the trend of legal opinion and the gathering judicial reluctance in the United States to follow the 1868 English decision of Regina v Hicklin under the Obscene Publications Act of 1857 which held that “the test of obscenity is ... whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences”. Quinn was unwilling to confront or to seek to circumscribe the Hicklin precedent, nor to seek to adduce expert evidence of literary merit. He did not advise an appeal.

Hassett rightly does not get drawn too deeply into Joyce’s response to the conviction of Heap and Anderson, beyond making the point that he was kept largely in the dark. (When he eventually became aware of what Quinn had argued, he wrote to Harriet Shaw Weaver that the defence was more grotesque than the offence). On anything that touched on the publication of Ulysses, Joyce was Clausewitzian if not Bismarckian: the book was transcendent, equating to a matter of state to which the considerations of others were subordinate. He had little sense of the ordeal of Anderson and Heap and was to put it at its mildest scantly appreciative of the role of Sylvia Beach in publishing Ulysses in Paris after the Little Review trial. An attentive if not obsessional strategist of publication after the setbacks of his earlier life, he knew the United States was beyond his ken. He did have a generalised dread of reactionary Irish-American sentiment. When John Butler Yeats correctly characterised him as a “New World Puritan”, Quinn denied he belonged to that “self-righteous and bitter lot”. It is deeply ironic that Joyce, who in response to the Parnell split had acquired an abiding detestation of the marriage of Catholic and non-conformist values, should have fallen victim to the actions of someone in whom the fusion of Catholic and evangelical moral sentiment was incarnate.

It has come to seem almost insulting to apply the ever more alarming term “interdisciplinary” to so gracefully written a book. The relationship of law to literature is here seamlessly rendered. Hassett’s politely trenchant strictures on casual critical endorsements of Quinn’s advocacy – most recently evidenced in Kevin Birmingham’s vaunting of the “sophisticated legal creativity” of a “savvy defense attorney” in his The Most Dangerous Book – and on ill-informed literary critiques of Woolsey’s reasoning are unanswerable. The book is also a model of reconstructed legal argument. At least in these islands, legal history is written backwards from judgements, not conceived en avant from advocacy. Joyce, with his insistence on “ousted possibilities” would have approved; as would Adrian Hardiman, the pre-eminent Irish authority on Joyce and the law and a judge who never for an instant forgot what it was to have been an advocate – to do so he would have thought a self-betrayal – and who had he lived would have been the person invited to write this review of Joe Hassett’s fine monograph.

The last word should rest with the exasperated, and exhausted, John Butler Yeats. Some of his contemporaries considered him the last great exponent of the Irish art of conversation, and he had in early life fled the bar:

Quinn is the brainiest man I know but he has no intellect ... As a rule lawyers have no intellect, only brains, clever in argument and in getting the better of all their opponents. But intellect is something different. It is insight, a power of vision, by which men paint pictures and write poetry and evolve philosophical theories ... and it never never argues and never gets excited and feverish, though very eager to explain itself.

1/11/2016

Frank Callanan is a senior counsel and a historian. He is currently writing a book, to be entitled The Shade of Parnell, on the influence of Parnell and the Parnell split on James Joyce, and on Joyce’s treatment of the Parnell myth.

Space to Think, an anthology bringing together more than fifty of the best pieces to have appeared in the Dublin Review of Books since its foundation ten years ago, was published in October. Selling in the shops at €25, it is also available to order online at a special price of €20 (to collect in Dublin) or €20 + post and packing charges as appropriate for shipping to addresses in Ireland and internationally. To buy online, follow the steps from the home page of our website.

One piece featured in Space to Think is “The Road to Partition”, Frank Callanan’s review of Ronan Fanning’s Fatal Path: British Government and Irish Revolution 1910-22. Here is an extract:

Conor Cruise O’ Brien (not mentioned by name, in itself a feature of the primness of the current academic orthodoxy) certainly questioned the necessity for the IRA campaign in the War of Independence, but he did so primarily in the context of querying the destructive consequences of anti-partitionist rhetoric in southern politics and the exaltation of political violence. It is moreover a travesty of politics in the Republic to imply that it was felt necessary to repudiate the proximate origins of the state in the War of Independence to condemn the campaign of politico-sectarian murder prosecuted by the IRA in the Troubles. (The striking resurgence of Michael Collins as an Irish popular hero in recent years does not suggest that most Irish people are discomfited by the war of independence, or have difficulty distinguishing between the IRA of that war and the IRA of the Northern Ireland Troubles. Perhaps historians who share Fanning’s view will suggest that the memory of Collins would not have made its contemporary ascent if it were not for the Good Friday agreement. Though absurd, this would at least have the merit of consistency.)
If one accepts that partition in some form was inevitable, the principal casualty of the course of events expertly chronicled in Fatal Path was Irish nationalist self-confidence, which seeped into statehood. Majoritarian support for the treaty and pride in the establishment of an independent Irish state weirdly coexisted with a sense of betrayal and defeat, fortified by an unassuageable sense of guilt provoked by the feeling that Southern nationalists had abandoned their Northern brethren to their fate in the deeply inhospitable institutions of the Northern Irish state. With Fianna Fáil’s entry into the Dáil and government this complex became inextricably woven into the fabric of Irish party politics. The pall of woundedness was not dispelled by the achievements of the independent Irish state under successive governments and had profoundly retrograde consequences. It endured into the late 1950s and was not then quickly dispelled.
That sense of despair, and the curious combination of passivity and mystical nationalist elan to which it conduced, had its origin in the escalating setbacks sustained by the Irish party in the 1910-18 period. Irish nationalists had been nurtured since Parnell’s time on the promise of unitary Home Rule. Whatever the inevitability of a two-state outcome, the manner in which it unfolded to 1918 ‑ the militaristic marshalling of resistance in Ulster followed by a series of stepped compromises at Westminster in which the Irish party found itself constrained to acquiesce ‑ was catastrophic. It is difficult to conceive of a script more wounding to nationalist self-belief.

 

 

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