4. John Quinn: The Advocate as Cynic
Unfortunately, JBY’s compelling argument based on Joyce’s terrible veracity never made it to the courtroom. Although Quinn praised JBY’s ideas as ‘very brilliant, very true, very searching, very illuminating’, and generously sent him a check ‘for $85 as a fee to you as my associate counsel in the matter of “Ulysses”’, he misused the ideas he praised so lavishly.1 The New York statute under which Anderson and Heap were charged was susceptible to JBY’s argument. Since the statute did not define obscenity in terms of a ‘tendency to corrupt’, it was open to Quinn to urge the court to ignore arguably inapplicable language in Hicklin about a tendency to corrupt, and hold that Ulysses was not obscene because of its truth and beauty as literature. Such an argument would insist, as JBY’s initial letter of 14 October did, on the importance of freedom of literature. But Quinn, just two days after JBY’s letter, proclaimed in his 16 October letter to Pound that there was no issue of freedom of literature involved in defending Ulysses.2 Instead, he insisted on presenting the case in terms of whether or not Ulysses tended to corrupt, an approach better suited to the social-hygiene theories of Hagar Revelly than the terrible veracity of Joyce.
Quinn perverted JBY’s letter terribly in his argument at a preliminary hearing on 21 October 1920 before New York City Magistrate Joseph E. Corrigan, whom he described to Pound as an ‘old friend’.3 In other words, the magistrate was one of the circle of Irish Americans before whom Quinn did not want to present himself as a champion of sex literature. Converting JBY’s aesthetic argument into a moral one, and reviving the idiosyncratic vocabulary he had employed in his Vanity Fair commentary on Joyce’s Portrait, Quinn argued that it is beauty that corrupts, but filth that deters, and contrasted ‘the strong hard filth of a man like Joyce with the devotion to art of a soft flabby man like Wilde’.4 This is bad criticism and worse advocacy. Joyce, Anderson and Heap deserved better than the concession that Joyce’s prose was filthy and thus escaped the corruption of beauty. Quinn managed to avoid championing ‘sex literature’ by arguing that Ulysses could not corrupt, thus ignoring JBY’s realistic argument that, while ‘there is no great literature that would not be dangerous reading to some people’, Joyce’s terrible veracity was too valuable to society to be barred as obscene. Although Quinn was willing to depart from one of Hicklin’s subsidiary points by arguing that filthiness should be tested by a work’s ‘effect on the average man or woman’,5 he declined to challenge Hicklin’s core.
Quinn’s further argument as to why the Nausicaa episode would not corrupt the reader did Joyce the double disservice of branding as disgusting language that bore no resemblance to the text for which Anderson and Heap were being prosecuted. As he recounted to Pound, Quinn urged the court:
If a young man is in love with a woman and his mother should write to him saying: ‘My boy, the woman you are infatuated with is not a beautiful woman … She sweats, she stinks, she is flatulent. Her flesh is discolored, her breath is bad. She makes ugly noises when she eats and discharges other natural functions …’ Those remarks might be considered by some refined person as filthy, but they are not filthy within the meaning of the law. They would not send the aforesaid son to the arms of that fairy, but would be more likely to turn him from her in disgust.6
Of course, this imaginary text is not Joyce’s, and Quinn neglected to point out the beauty of what Joyce did write.
Quinn’s next argument reduced JBY’s subtle observation that Joyce’s difficult prose would ‘protect him from the silly’ to the absurdist ‘syllogism’ that the reader would either understand the Nausicaa episode, or not, and, ‘If he understood what it meant, then it couldn’t corrupt him, for it would either amuse or bore him. If he didn’t understand what it meant, then it could [not] corrupt him.’ Magistrate Corrigan, who was the nephew of Michael Corrigan, Archbishop of New York from 1885 to 1902, and held undergraduate and graduate degrees from Seton Hall College and a law degree from Columbia, had no trouble penetrating and dismissing Quinn’s syllogism.7 The passage ‘where the man went off in his pants’, Corrigan ruled, was unmistakable in meaning and ‘smutty, filthy within the meaning of the statute’.8 So much for the syllogism. Corrigan ordered a trial on the merits before three city court judges in the Court of Special Sessions.
Quinn sought to delay the ultimate outcome – which he was convinced would be adverse – by filing a motion in the Court of General Sessions, a court at a higher tier of the judicial system, asking that the case be transferred there.9 Following the strategy he had employed in the Jurgen case, his thinking, as explained in a letter to Shane Leslie, was that the case would move at a slower pace, being commenced by a grand jury indictment and tried to a jury, and thus Ulysses could be privately published and sold during the delay.10 Quinn’s moving papers cited Judge Learned Hand’s opinion in Kennerley in support of the proposition that the question whether a work was obscene was normally a question to be determined by a jury. Quinn’s letter to Leslie recounts that his tactic boomeranged. His argument that significant property interests were at stake convinced the court that the case should be tried promptly, and thus a quicker trial in the Court of Special Sessions was preferable. The motion was denied.
The defence Quinn presented at the February 1921 trial before three Court of Special Sessions judges was even more tawdry and cynical than his presentation at the preliminary hearing. Whereas Anderson and Heap wanted a defence based on Anderson’s belief that Ulysses was ‘the prose masterpiece of my generation’,11 the essence of Quinn’s case, as reported in the 22 February 1921 New York Tribune, was that average readers would not be harmed by Joyce’s prose ‘because if they read the magazine, which was improbable, they would be either unable to comprehend Joyce’s style, or would be bored and disgusted’.12 Quinn’s account of the trial in a 21 April 1921 letter to Joyce omitted reference to his argument based on the disgusting nature of Joyce’s prose, but emphasized its incomprehensibility. He told Joyce that he impressed upon the judges that the Nausicaa episode could not corrupt because ‘no one could understand what the thing was about’. He sought to justify this insulting argument – which he claimed many in court called ‘brilliant’ – by asserting that the judges were ‘stupid’ and thus this was ‘the only tack that could be taken with the three stupid judges’13 – an approach he characterized to Leslie as ‘a frank appeal to the three Judges’ ignorance’.14 But it was Quinn’s duty to educate the judges about Ulysses, whatever their intellectual attainments. Moreover, it is the trial lawyer’s job to lay the basis for an appeal in the event of an adverse ruling.
To Quinn’s credit, he did begin his presentation by referring to Joyce’s reputation as a man of letters, but he dropped the point as soon as the judges questioned its relevance.15 Quinn likely welcomed the judges’ reaction because it confirmed his own view that the quality of Joyce’s work was irrelevant.16 But he was an advocate, and his job was to press the case on behalf of his client. Judicial skepticism is the advocate’s invitation to engage and persuade, not to retreat.
Instead, rather than establishing the quality and importance of Joyce’s writing, Quinn followed his ‘incomprehensibility’ argument with what he told Joyce was the ‘good point’ that the anger manifested in the prosecutor’s argument was ‘my best exhibit’. Recalling his argument with relish, Quinn boasted to Joyce that, ‘pointing to the prosecutor, I said’:
There is my best exhibit. There is proof that ‘Ulysses’ does not corrupt or fill people full of lascivious thoughts. Look at him! He is mad all over. He wants to hit somebody. He doesn’t want to love anybody. He wants somebody to be punished. He’s mad. He’s angry. His face is distorted with anger, not with love. That’s what Joyce does. That’s what ‘Ulysses’ does. It makes people angry. They want to break something. They want somebody to be convicted. They feel like prosecuting everybody connected with it, even if they don’t know how to pronounce the name ‘Ulysses’. But it doesn’t tend to drive them to the arms of some siren. And after all it isn’t a crime to make people angry.
Confusing the effect of being the prosecutor in an obscenity trial of Ulysses with the effect of reading the book, Quinn deprived the occasion of the seriousness it demanded. ‘The judges were rocking with laughter,’ Quinn wrote to Joyce, ‘and again I thought I had them’. Quinn did not report to Joyce that, as Anderson informed her readers, he had told the court that ‘I think Joyce has carried his method too far in this experiment.’17 Whereas the core of a potentially winning argument – and certainly what Joyce, JBY, Anderson and Heap believed – was that Ulysses was great literature that the public was entitled to read, Quinn presented it as a failed and unintelligible experiment. According to the New York Times, Quinn told the court that the unintelligibility of Joyce’s prose ‘was principally a matter of punctuation marks’, which Joyce didn’t use, ‘probably on account of his eyesight’.18 Quinn suggested to the judges that Ulysses was ‘cubism in literature’,19 but stopped short of explaining the importance of experimentation in art, settling instead for the limp concession that the experiment was a failure.
Given Quinn’s distaste for championing ‘sex literature’ and in view of his arguments of unintelligibility and failure, it is no surprise that he did not make a record of expert testimony as to the beauty and truthfulness of Joyce’s prose as literature. At the time of the trial, the law of New York on the admissibility of such evidence was in a state of flux that presented an opportunity for a vigorous advocate to obtain an appellate ruling that a writer or publisher accused of obscenity should have a right to present expert opinion as to the quality of the allegedly obscene work as literature. New York’s highest court, the Court of Appeals, had held in 1884 that expert opinion was not admissible on the question of obscenity because ‘to permit such evidence would put the witness in the place of the jury, and the latter would have no function to discharge’.20 The Court reasoned that ‘testimony of experts is not admissible upon matters of judgment within the knowledge and experience of ordinary jurymen’.21 Nonetheless, within a decade of this decision, lower courts in New York, consistent with the general trend of admitting expert testimony when it might be helpful to the jury, were allowing expert testimony on the question of obscenity.22 Quinn himself had successfully read a letter from the ‘muckraker’ author Ida Tarbell to the jury on the question whether Hagar Revelly was obscene. Nonetheless, Quinn failed to present expert critical opinion on the merit and significance of Ulysses as literature.
Welcoming the ban on further serialization, and convinced that an appeal would fail, Quinn had decided in advance of trial that there would be no appeal from the assumed conviction. Thus he informed Anderson on 5 February 1921 that ‘the Appellate Court will with absolute certainty affirm the decision of the lower court’ and thus he would not make a record of ‘witnesses, experts and critics, and passages of comparative literature’ for an appeal as he would have done had he ‘thought there was a fighting chance in the matter’.23 Quinn further advised in his 5 February letter that Anderson and Heap needed to ‘think about what your personal defenses will be in mitigation of the penalty or sentence’. This dire warning must have provoked a sufficiently alarmed reaction from Anderson that Quinn altered his view at the last minute and decided to present expert testimony for the limited purpose of mitigating punishment. He wrote Anderson on 8 February – six days before trial – that she should suggest at least two witnesses whom he could offer to prove ‘the serious nature of Joyce’s work …’ Such testimony, he said, ‘is not admissible but sometimes the court may receive it in mitigation of sentence’.24 At trial, Quinn offered limited expert testimony, but its thrust was not that Ulysses was great literature, but only that it would not corrupt readers. John Cowper Powys, the accomplished novelist whose lecture on Ruskin and Pater had inspired Anderson to start The Little Review, was pressed into service to give testimony that fit Quinn’s theory of the case by saying, as recounted by Anderson, that ‘Ulysses was too obscure and philosophical a work to be in any sense corrupting.’25 Quinn called Phillip Moeller of the Theatre Guild to the stand to say that ‘the objectionable chapter is an unveiling of the subconscious mind, in the Freudian manner, and that he saw no possibility of these revelations being aphrodisiac in their influence’.26 Both witnesses were competent to testify to the value of Joyce’s work as literature, but neither was offered for that purpose or gave testimony to that effect.27
Instead, Quinn presented Ulysses as a failed experiment, and treated the prospect of a criminal conviction for publishing innovative literature as an occasion for provoking the judges to laughter by personal ridicule of the prosecutor. The joke was on Joyce, Anderson, and Heap. Anderson and Heap were convicted, with one of the judges (Justice McInerney) concluding that ‘this novel is unintelligent, and it seems to me like the work of a disordered mind’.28 Anderson and Heap were fined fifty dollars each, and it was stipulated that no further installments of Ulysses would be published in The Little Review.29
Anderson and Heap were deeply disappointed. They had devoted enormous energy at great personal sacrifice and risk to publishing about 60 per cent of the eventual novel over the period from the spring of 1918 through the end of 1920, and had strong convictions about how their efforts should be defended. Nonetheless, they had reluctantly agreed to what Anderson later described as ‘John Quinn’s idea’ that she and Heap ‘remain inconspicuous, meek and silent …’30 Quinn’s patronizing treatment of his clients illustrates the sage observation of Shaw’s Sir Patrick Cullen that ‘all professions are a conspiracy against the laity’.31 Anderson had maintained that ‘the question that should be up for discussion in court … is the relation of the artist – the great writer – to the public.’ ‘I state clearly’, she insisted, ‘that the (quite unnecessary) defense of beauty is the only issue involved.’32 The tragedy of Quinn’s silencing of his clients was epitomized in the moment when one of the judges paternally suggested that Anderson be excused before the prosecutor read the allegedly obscene passages. Quinn pointed out that she was the publisher, but the judge insisted that she couldn’t have known the significance of what she was publishing.33 Unlike the male judges and lawyers, she did. She and Heap had powerful ideas about the relation between law and literature, and risked liberty and livelihood in support of their artistic convictions.
Heap’s closely argued essay in The Little Review on the eve of trial artfully blended the claims of both beauty and truth in support of Ulysses. She insisted on literature’s right to portray life honestly, noting that Gerty MacDowell’s leaning back on Sandymount Strand was perfectly ordinary and natural. As she put it with quiet force: ‘Girls lean back everywhere.’ Imaginative treatment of natural acts, she argued, does not corrupt: ‘It was the poet, the artist, who discovered love, created the lover, made sex everything that it is beyond function. It is the Mr. Sumners who have made it an obscenity.’ Echoing – and performing – the creed of Pater and Wilde, Heap insisted that ‘the only question relevant at all to “Ulysses” is – “Is it a work of Art?”’34
Anderson made a similar point after the trial in her report of the proceedings in The Little Review. Identifying the crucial failure to present expert opinion on the quality of Joyce’s prose as literature, she complained that literary experts were denigrated ‘because they know only about literature but not about law: “Ulysses” has suddenly become a matter of law rather than of literature …’35 This was the central flaw at the heart of the defence presented by Quinn.
Not having presented evidence as to the literary importance of Joyce’s work, but having conceded that it was a failed experiment, Quinn adhered to the decision he had made even before the trial commenced that no appeal would be taken from the conviction he regarded as inevitable. If an appeal had been taken, and reached the Court of Appeals on an appeal as of right from the intermediate appellate court,36 the appeal would have arrived at about the time that the Court of Appeals accepted, in another case, arguments of the kind that JBY, Anderson and Heap wanted to advance in defence of Joyce. The case, Halsey v. New York Society for the Suppression of Vice, 234 N.Y. 1 (1922), on which the Second Circuit Court of Appeals would later rely in holding that Ulysses was not obscene, arose out of a much more aggressive approach to Sumner than employed by Quinn. Sumner had arrested and prosecuted Halsey for selling an English translation of Mademoiselle de Maupin, the nineteenth-century novel by Théophile Gautier in the preface to which Gautier insisted that literature follows morals and not vice versa, and articulated the notion of art for art’s sake. Halsey was acquitted. Thereafter, he commenced an action for malicious prosecution against the New York Society for Suppression of Vice, and won a jury verdict against Sumner’s Society.
In the course of upholding the jury’s verdict that Sumner lacked probable cause to prosecute Halsey for selling Gautier’s novel, the court, in an opinion by Judge William Andrews, departed from the Hicklin rule that any obscenity doomed the entire book. Rather, the court held that, although the book contained many paragraphs ‘which taken by themselves are undoubtedly vulgar and indecent’, a work may not ‘be judged by a selection of such paragraphs alone’, but rather the book ‘must be considered broadly as a whole’. Moreover, Andrews took account of critical opinion, noting, for example, that Saint-Beuve – described as ‘that distinguished critic’ – was ‘astonished by the variety and richness of [Gautier’s] expression’, that ‘Henry James refers to him as a man of genius,’ and that a number of other named critics ‘all speak of him with admiration’ and ‘tell of his command of style, his poetical imagery, his artistic conceptions, his indescribable charm, his high and probably permanent place in French literature’. Analogous evidence and argument might have been advanced by Quinn but for his view – shown to be erroneous by the decision in Halsey – that they could not possibly succeed.37
Quinn could have made and presented an appellate record of expert opinion of the merit of the entire Nausicaa episode in the context of the book’s overall parallel of Homer’s Odyssey, which Joyce had described to him in his 3 September 1920 letter.38 Application of the principles of Halsey would have required that Anderson and Heap’s convictions be reversed because the court had erroneously considered passages in isolation and failed to consider expert opinion as to the work’s literary merit. Instead, Joyce’s prose was found obscene without Quinn having sought an appellate ruling on these important issues or otherwise forced the judicial system to focus on the fundamental issue of the quality of Joyce’s writing as literature.
Having peremptorily informed Anderson prior to trial that there would be no appeal, Quinn did not discuss appellate possibilities after the trial, or suggest that Anderson and Heap seek a different lawyer. As Anderson later observed, Quinn liked having control, and was not about to cede it.39 Nor did Quinn bother to consult Joyce about the decision not to appeal. It was Quinn’s nature to be certain he knew what was best. Joyce, focused on writing, took only sporadic interest in the legal proceedings. In fact, Joyce generally stood in relation to the many people struggling to help him much as his character Stephen Dedalus situates the artist in relation to his work: ‘The artist,’ Stephen declares, ‘like the God of the creation, remains within or behind or beyond or above his handiwork, invisible, refined out of existence, indifferent, paring his fingernails.’40 Joyce’s remoteness and Quinn’s arrogance combined to create a situation that allowed Quinn to eschew an appeal that could have reversed Anderson and Heap’s convictions and hastened Joyce’s ability to bring Ulysses to the public.
This communication gap bedeviled the case from the outset. The 21 October preliminary hearing before Judge Corrigan had already taken place before Joyce was even aware that proceedings had been commenced against Anderson and Heap. He wrote to Pound on 5 November 1920 that ‘I knew nothing of the affair till yesterday’ when he received a letter from Scofield Thayer saying ‘he was sorry about the Little Review’.41 By 10 November Joyce had received the letters of 16 October and 21 October that Quinn had asked Pound to forward, and wrote to Harriet Shaw Weaver that he had received from Pound ‘two very long letters from Mr. Quinn of New York concerning Ulysses and The Little Review but before I reply I should like to know whether you have had any communication from anybody in New York on the subject’.42
Despite the great length and detail of Quinn’s 21 October account of the hearing before Corrigan, Joyce’s response was terse, focusing only on an aspect of Quinn’s report that had played to the Joycean fondness for scatology that Quinn found so offensive in writings intended for publication, but was happy to stoke in private. Setting the scene for Joyce, who had playfully entitled a book of poems Chamber Music, Quinn reported that ‘the judge was in his legal chambers’, and expressed uncertainty whether the ‘judicial urinal or judicial water closet abutted his chambers’. Apparently not realizing that Joyce would not share his view of The Little Review as a sewer, he added that, ‘at any rate, chambers struck me as the right place for him to read the July–August number’. Joyce’s 17 November response was silent with respect to the substance of Quinn’s argument, and limited itself to thanking Quinn for his defence of Ulysses and noting his amusement at the letter in the context of his hope ‘that the magistrate enjoyed himself in his judicial chambers as much as he appears to have done in court’.43
The failure of attorney-client communication was fuelled by the way in which Quinn’s overconfidence meshed with Joyce’s remoteness, and aggravated by the personal circumstances of both Joyce and Quinn. As the trial approached, Joyce was frantically writing the Circe and Eumaeus episodes of his novel, while trying to find suitable living accommodations in Paris and suffering from debilitating eye problems.44 Quinn, exhausted and angry that Joyce had disregarded his advice to withdraw Ulysses from The Little Review, felt that in diverting time from a busy practice to defend Anderson and Heap, he was ‘pay[ing] the price of other people’s stupidity’.45 On the eve of trial, when communication should have been at its maximum, Quinn imposed a moratorium on communication with Joyce, instructing him by cable of 24 January 1921, ‘Do not cable me again on any subject. Have endeavored to make you and Pound understand am working limit of my endurance.’46 The silence between Joyce and Quinn leading up to the trial continued through the time when an appeal might have been taken. Quinn had good reason to be annoyed that he was taking time away from pressing business without compensation, but he had volunteered to take charge of the case and had a duty to do so competently and conscientiously, a duty that precludes abandoning the case, and requires seeking informed client consent on significant decisions.47
As a result of Quinn’s failure to apprise Joyce of developments in the case, the author of Ulysses learned that one of its episodes had been found obscene only by reading the New York Tribune’s 23 February 1921 editorial comment on the trial,48 which had found its way by chance to Sylvia Beach, proprietor of the now legendary Paris bookstore, Shakespeare and Company.49 The expatriate bookseller had been captivated by Ulysses when she read the episodes published in The Little Review, and thus was thrilled to meet Joyce at a social event in Paris to which Pound brought him after convincing him to move to the French capital.50
Joyce’s transcription of the New York Tribune article from which he learned that Anderson and Heap had been convicted of obscenity for publishing an episode of Ulysses. (Beinecke Rare Book and Manuscript Library, Yale University)
Sylvia Beach and James Joyce in front of Shakespeare and Company, 1921. (James Joyce Collection, The Poetry Collection of the University Libraries, University at Buffalo, The State University of New York. Item 3.4)
On a subsequent visit to Beach’s bookstore, Joyce learned from the newspaper clipping that Quinn’s defence of his masterpiece was essentially that it was disgusting and incomprehensible. The effect on Joyce was so dramatic that he took the trouble to transcribe the article in his own hand.51 Contemplating reports of the trial, Joyce wrote to Harriet Shaw Weaver that the offence was less grotesque than the defence.52
At this perilous point on Ulysses’ voyage, Anderson and Heap’s publication of instalments of Joyce’s novel led to the book’s rescue: after hearing Joyce lament that the New York conviction meant his novel would never be published, Beach, primed by reading The Little Review installments, made an astonishing offer to publish the novel in France under the imprint of her bookstore.53
When Quinn finally provided Joyce with an account of the trial in his letter of 13 April 1921 Joyce’s response was brusque, noting tersely that ‘The publication of Ulysses (complete) was arranged here [in Paris] in a couple of days,’ and adding only perfunctory ‘best thanks for your advocacy’.54 According to Joyce’s biographer Richard Ellmann, Joyce ‘never wholly accepted’ Quinn’s approach to The Little Review case, ‘feeling that a chance for a brilliant defense of the book had been muffed’.55
Joyce was right. Quinn lacked the personal conviction to force the courts to confront the right of Ulysses to be heard. By relying on an argument in which he didn’t believe – that Joyce’s prose deterred immoral conduct because of its filth – he undermined his ethos, the quality of personal credibility that Aristotle lists as the first tool of persuasion, giving it priority over both pathos and logos.56 Moreover, his unpardonable bias against Anderson and Heap and his antipathy to their enterprise disqualified him for the fundamentally important task of protecting their right to publish. Joyce’s biographers, Richard Ellmann and Gordon Bowker, and John Butler Yeats’s biographer, William Murphy, have tended to defer to Quinn’s judgment that the case against Anderson and Heap was unwinnable.57 But, as already mentioned, Quinn had thought the same thing about the case against Jurgen, and he turned out to be wrong when his successor as counsel proved victorious. Without hindsight or speculation, it is clear that the arguments that Quinn did advance were poor ones, and unworthy of Ulysses and Joyce. Quinn’s biographer B.L. Reid adopts what he characterizes as Quinn’s view – that he ‘behaved … as a practical hodman of the law trying to save what he could of another man’s bad cause’. Even Reid, however, laments the cynical, near-farcical tone of Quinn’s arguments, and finds it ‘distressing that Quinn did not rise to mount a crusade for Ulysses on general principles as well as upon tricky manipulations of law and of prejudice’.58 Reid’s appraisal evokes JBY’s assessment:
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.59
Paul Vanderham’s James Joyce and Censorship suggests, ‘Given the limitations imposed upon him by his own view of literature and the unwillingness of the judges to place much value on literary merit, Quinn made the best argument he could.’60 But Quinn’s view of literature should have been of no significance. His duty was to advance the position of his clients that Ulysses was a ‘prose masterpiece’ of compelling beauty and truth. Moreover, the judges’ unwillingness to place much value on literary merit was exactly what needed to be changed, either by convincing the judges to think otherwise or reversing them on appeal.
The most recent assessment of Quinn’s handling of the case, Kevin Birmingham’s The Most Dangerous Book, startlingly lauds ‘sophisticated legal creativity’ by a ‘savvy defense attorney’.61 Birmingham’s view is heavily influenced by his assertion that Quinn introduced a completely out-of-context-discussion of Learned Hand’s Kennerley opinion in the midst of an argument avowedly addressed to the ‘ignorance’ of judges he perceived as ‘stupid’.62 Neither Quinn himself, nor Anderson and Heap, who longed for an argument based on truth and beauty, recount any such Kennerley-based argument. Birmingham cites no account of the trial that states that Quinn made an argument based on truth and beauty, rather than pursuing what Quinn himself called the ‘only tack’ he could take with the ‘stupid’ Special Sessions judges, which consisted of his insistence on Joyce’s unintelligibility, his concession that Joyce’s writing was a failed experiment, and his buffoonish ridiculing of the prosecutor. Birmingham supports his claim that Quinn discussed Kennerley by referring to Quinn’s ‘memorandum’. But Quinn filed no memorandum in connection with his oral presentation to the Court of Special Sessions judges. In response to a query by the author of the present book, Birmingham has clarified that his reference to a memorandum was meant to describe written papers Quinn had previously filed in a different court, the Court of General Sessions, in support of his unsuccessful motion to have the case transferred to that court.63 Quinn cited Kennerley in those papers for the proposition that obscenity charges should be resolved by a jury. But papers filed at a different time in a different court do not support an account of what was said about the alleged obscenity of Ulysses at the trial before the three judges who decided the case. Birmingham’s praise of Quinn’s performance at trial thus rests on what is essentially a fictional account of the trial. Birmingham concedes in a footnote that ‘The order of events, exchanges and particular arguments during the trial isn’t always clear, and it varies from account to account. I’ve arranged it for narrative purposes.’64
Birmingham also suggests that Quinn’s citation to Kennerley resulted in an unusual ruling by the Court of Special Sessions to allow expert literary opinion on the question of obscenity.65 In fact, as discussed above, New York trial courts had been allowing expert testimony on the question of obscenity. Moreover, Quinn offered his experts only to mitigate punishment, not to defeat the charge of obscenity. Birmingham’s creative approach to narrative obscures the sad fact that Quinn consciously chose not to rely on Learned Hand’s analysis at trial, but preferred a cynical argument that precluded an appellate ruling on the issues raised in Judge Hand’s Kennerley opinion.
More interested in his novel than the legal proceedings, Joyce wrote on. In a fascinating example of the relation between law and literature, he used the material Quinn sent him about the trial as part of the life he fashioned into literature. For example, Anderson and Heap’s statement to Sumner that they were the publishers of The Little Review ‘and that they gloried in it’, which was contained in the Sumner Affidavit that Quinn sent Joyce in April 1921, found its way into the Circe episode of Ulysses, where The Veiled Sibyl’s enthusiastic support of Bloom prompts her to declare, ‘I’m a Bloomite and I glory in it.’66 Joyce also found good use for a news clipping forwarded by Quinn about Phillip Moeller’s testimony that Joyce’s technique involved ‘an unveiling of the subconscious mind in the Freudian manner’. The report of Moeller’s testimony seems to have sparked the appearance of Dr Malachi Mulligan as a sex specialist at Bloom’s fantastical trial in Circe where he analyses Bloom in pseudo-Freudian terminology.67 Ever the victim, Joyce saw to it that Dr Mulligan concludes that Bloom is ‘more sinned against than sinning’.68
Although Quinn’s timidity denied Anderson, Heap and Joyce an appellate ruling on the right of Ulysses to be heard, the valiant editors were not entirely silenced. The Autumn 1921 issue of The Little Review kept the cause alive. Initiating a tactic that would later prove useful to Joyce, the editors announced in bold letters inside the front cover:
As protest against the suppression of the Little Review containing various installments of the “Ulysses” of James Joyce, the following artists and writers of international reputation are collaborating in the autumn number of Little Review: Brâncuși, Jean Cocteau, Jean Hugo, Guy Charles Cros, Paul Morand, Francis Picabia, Ezra Pound.
The editors made clear that the battle would continue, but with different players now that Beach had offered to publish an edition of Joyce’s novel in Paris. A note on the last page signed ‘jh’ reported that Ulysses had been announced for publication in book form, and lamented, ‘We limp from the field.’ Anderson and Heap had, indeed, been wounded, but their perceptivity and courage had succeeded in bringing Joyce’s prose to the attention of a wide audience and a publisher who would bring out the novel in book form. Moreover, their forceful insistence that the beauty and truth of literature ought not be barred by obscenity laws kept that important principle at the forefront of the marketplace of ideas.
Constantin Brâncuși (far left) greets Margaret Anderson and Jane Heap (far right and second from right) in his studio with Berenice Abbott and Mina Loy. (Library of Congress)
1 Letter of 22 October 1920 (QC).
2 See Ch. 2, n. 52.
3 Letter of 21 October 1920. See Ch. 3, n. 29.
4 Id.
5 Id.
6 Id.
7 New York Times, 2 August 1917 and 12 June 1930.
8 Quinn letter of 21 October 1920 to Pound, n. 3 above.
9 Court of General Sessions, Affidavit and Notice of Motion For the Transfer of Cause From Court of Special Sessions to Court of General Sessions, Jan. 12, 1921 (USIC). The different New York criminal courts are discussed in James Randall Creel, ‘The Statutory Disorganization of the Inferior Courts of New York City’, 24 Fordham L. Rev. 635 (1955).
10 Quinn letter of 21 June 1922 to Shane Leslie (QC).
11 Ulysses in Court 24.
12 ‘Ulysses Adjudged Indecent; Review Editors Are Fined’, New York Tribune (22 February 1921).
13 Letter from Quinn to Joyce, 13 April 1921 (QC). A similar account is contained in Joyce’s 21 June 1922 letter to Shane Leslie, n. 10 above.
14 Letter of 21 June 1922, n. 10 above.
15 TYW 220.
16 E.g. Quinn letter of 5 February 1921, Ch. 3, n. 23.
17 Ulysses in Court 24.
18 ‘Improper Novel Costs Women $100’, The New York Times (22 February 1921).
19 ‘“Ulysses” Finds Court Hostile As Neptune’, The World (22 February 1921).
20 People v. Muller, 96 N.Y. 408, 412 (1884).
21 Id.
22 See, e.g., Stephen Gillers, ‘A Tendency to Deprave and Corrupt: The Transformation of American Obscenity Law from Hicklin to Ulysses II’, 85 Washington University Law Review 215 (2007) (‘Gillers’) at n. 122 (collecting cases).
23 See n. 16 above.
24 Letter of 8 February 1921 (SIUC).
25 Ulysses in Court 23.
26 Id. at 23–4.
27 Although Anderson later wrote that Scofield Thayer of the Dial also testified (TYW 220), her contemporaneous Little Review account reports that Thayer’s testimony was waived as repetitive. (Ulysses in Court)
28 ‘Greenwich Village’s Editoresses Fined’, New York Herald (22 February 1921) 8.
29 MNY 455.
30 TWY 219–20.
31 George Bernard Shaw, The Doctor’s Dilemma, in George Bernard Shaw, Complete Plays with Prefaces (New York: Dodd, Mead & Co., 1963) I, 110.
32 Margaret Anderson, ‘An Obvious Statement (for the millionth time)’, LR (September–December 1920) 8–9.
33 TYW 221.
34 Art and the Law 5–7.
35 Ulysses in Court 23.
36 See Gillers 265, n. 231.
37 Gillers’s careful study suggests, at 270, that an appeal might well have succeeded.
38 Ch. 3, n. 1.
39 TYW 215.
40 Portrait 215.
41 Richard Ellmann, ed., The Letters of James Joyce, Vol. III (New York: Viking, 1966) (‘JLIII’) 27.
42 JLI 149.
43 QC.
44 Ellmann 498; Gordon Bowker, James Joyce (London: Weidenfeld & Nicholson, 2011) (‘Bowker’) 283–4.
45 Letter of 21 January 1921 (QC).
46 MNY 481.
47 See Canon 44.
48 ‘Mr. Sumner’s Glorious Victory’, New York Tribune (23 February 1921). Joyce’s transcription of the editorial, which he sent to Weaver, is in the Beinecke Rare Book and Manuscript Library, Yale University, James Joyce Collection, Box 17, Folder 325. Lawrence Rainey identified the location of Joyce’s transcription in Institutions of Modernism (New Haven: Yale University Press, 1998) 49 and 189 n. 23.
49 Letter of 3 April 1921 from Joyce to Harriet Shaw Weaver, JLI, 160; Noel Riley Fitch, Sylvia Beach and the Lost Generation (New York: W.W. Norton, 1983) (‘Fitch’) 77.
50 Fitch 62–4; Pound/Joyce 181.
51 See n. 48 above.
52 Letter postmarked 30 March 1921 (BL).
53 Sylvia Beach, Shakespeare and Company (New York: Harcourt, Brace & Company, 1956) (‘Beach’) 47; Ellmann 504.
54 Joyce letter of 21 April 1921 to Quinn, JLIII, 40–41.
55 Ellmann 558.
56 Aristotle, Rhetoric, Book I, Chapter 2 in Roberts.
57 Ellmann 503–4; Bowker 286; PF 521.
58 MNY 455–7.
59 Letter of 13 September 1921 from JBY to Jack Yeats in Declan J. Foley, ed., The Only Art of Jack B. Yeats (Dublin: Lilliput Press, 2009) 172–3.
60 Vanderham 55.
61 Birmingham 168, 194.
62 Birmingham 193–4.
63 31 March 2015 email from Kevin Birmingham to the author. Quinn’s motion in the Court of General Sessions is described at n. 9 above and the related text.
64 Birmingham 377.
65 Id. at 193–4.
66 James Joyce, Ulysses (New York: Modern Library, 1934) (‘Ulysses’) 481. Joyce’s use of incidents from The Little Review trial is discussed in David Weir, ‘What Did He Know, and When Did He Know It: The Little Review, Joyce, and Ulysses’, James Joyce Quarterly, Vol. 37, No. 3/4 (Spring/Summer 2000) 389–412.
67 Ulysses at 483.
68 Id.