6. Ernst, Woolsey and the Hands: Ulysses Unbound

In the summer of 1931 two impulses converged that would ultimately end Ulysses’ exile. One was Joyce’s concern that unauthorized editions of Ulysses would deprive him of the American market, which led him to direct his agent James Pinker to explore the possibility of an authorized American edition.1 The second was the interest of the New York lawyer Morris Ernst in waging a legal battle to permit American publication of Ulysses. Ernst, whose father had immigrated to the United States from Eastern Europe, grew up in New York City, attended Horace Mann School, and received his BA from Williams College. He was particularly influenced by the broadly humane ideas of English professor Ted Lewis, a former major league baseball player known as ‘the Pitching Professor’, who discussed poetry with Robert Frost as the two played catch.2

Ernst’s writing suggests that he drank from the same spring as John Butler Yeats, whose argument for Joyce’s ‘terrible veracity’ had been mutilated by Quinn. For example, Ernst prominently cited JBY’s master J.S. Mill in articulating ‘The Case Against Censorship’ in one of his memoirs and, as we shall see, relied on another JBY favourite, Macaulay, in urging the courts to recognize the value of Ulysses’ truthfulness.3 Not surprisingly, Ernst was bored with his post-college job of selling furniture. Intrigued by a friend’s experience of attending New York Law School at night, Ernst did the same while selling shirts and furniture by day. After law school, his earnest interest in free expression fuelled a busy practice and led him to serve as general counsel to the American Civil Liberties Union from 1929 to 1954.4 He had a number of high-profile successes challenging obscenity charges, including those against Radclyffe Hall’s The Well of Loneliness.

In the summer of 1931 Ernst and his partner Alexander Lindey discussed their desire to wage a battle to legalize Ulysses in the United States. Lindey referred to their discussions in his very interesting 6 August 1931 memorandum to Ernst about his lengthy interview with Sylvia Beach’s sister, Holly Dennis, who was visiting New York from California.5 Dennis told Lindey that Beach ‘has the sole and exclusive world rights with respect to Ulysses … and is tremendously interested in the legalization of Ulysses and would be glad to cooperate in every respect if a responsible American publisher could be found.’6 Holly Dennis’s statement about her sister’s rights was legally correct because Joyce, in a cynical effort to convince his lawyers in the Roth litigation that he was not obliged to pay them, had entered a contract with Beach in 1930 ceding her sole worldwide rights to Ulysses to support his dubious position that she was the party to whom his lawyers should look for payment.7 Lindey further recounted that Beach’s sister had said that, although B.W. Huebsch’s firm, Viking, would have the American rights to Joyce’s Work in Progress, the working title of what became Finnegans Wake, Viking did not have the rights to Ulysses. Lindey’s excitement at the prospect of fighting to legalize Ulysses is palpable: ‘I still feel very keenly that this would be the grandest obscenity case in the history of law and literature, and I am ready to do anything in the world to get it started.’ Not wanting to miss this opportunity, he observed that, in view of another law firm’s relationship with Viking, ‘I realize that you would not be very anxious to see Ulysses sponsored by them.’ The sage Ernst responded with a note expressing a desire to pursue the matter, but, knowing there are multiple ways of skinning a cat, cautioned his colleague, ‘Be sure not to knock Viking to her. It will get back.’ Significantly, Ernst saw himself as the moving force in the matter and expressed confidence that ‘I am sure I can get a good publisher.’

By 21 October Ernst was writing to Huebsch following up their meeting the previous day that had concluded with Ernst’s promise to the publisher that he would ‘drop you a line in regard to possible services that we might render in connection with the legalization of Joyce’s Ulysses’.8 Ernst laid out the realistic situation respecting Ulysses, coupled with a very positive statement as to the course he might pursue ‘in order to win a court decision in favor of Ulysses’.9 He explained that Ulysses might be in the public domain, that the injunction entered against Roth was ‘not very impressive’, and that the real problem lay in the fact that ‘any attempt to legalize the volume will be faced at the outset with the condemnation previously enunciated by various courts against the volume’.10 Although he didn’t mention The Little Review case by name, Ernst likely had that case and the Heymoolen Customs Court case in mind. Ernst’s files contain a copy of the Heymoolen decision.11 There was no official report of the trial court’s ruling in The Little Review case. Neither the Customs Court nor the New York State court decision would be binding on a federal district court, but both decisions applied the traditional obscenity test to Ulysses. The real task for Ernst would be to supplant the traditional Hicklin test upon which the earlier decisions were based. He concluded his letter on a positive note, saying that to win the case would involve ‘substantial reversals of opinions laid down by our courts about a decade ago … but we were confronted with the same situation in the reversals which we have had to obtain in other cases such as the works of [birth control advocate] Dr. Marie C. Stopes …’12

Huebsch had never lost interest in Ulysses, but his dealings with Pinker and Beach hit an unanticipated snag. Irked at being treated by Joyce and others as his ‘representative’ rather than his publisher, Beach sought to ensure fair treatment in the event of an English or American edition by asserting the value of the rights that Joyce had too cleverly assigned to her. Thus, on 4 July 1931, she issued her own declaration of independence in the form of a letter to Pinker saying, ‘Will you kindly take note of the fact that I have a contract’ with Joyce granting publication rights. Observing that she had brought out the first edition in 1922, had published the book ever since, and that ‘if an American edition appeared I should probably have to cease publication here’, she instructed Pinker that ‘any offers must therefore include the sum of twenty five thousand dollars to be paid to me on signing the contract’.13

As 1931 drew to a close, Huebsch despaired of success, and so advised Bennett Cerf of Random House, who also wanted to publish Ulysses, but had deferred to Huebsch as a matter of trade courtesy. On 17 December a frustrated Huebsch wrote to Cerf that ‘Pinker writes from London that he thinks it’s hopeless to try to wrench Ulysses away from Miss Beach.’ Although noting that he would try again next time he saw Beach, Huebsch told Cerf, ‘You graciously stood aside for us, and naturally we cannot object if you should now determine to try to get the book …’14 Huebsch also let Ernst know of his temporary retreat, and Ernst, who had obviously been discussing the subject with Cerf, wrote to Cerf on 21 December suggesting they ‘hop a boat and spend a weekend with Miss Beach in Paris’.15 Cerf responded the next day suggesting they talk ‘soon after the turn of the new year’.16

Cerf promptly went to Paris on his own where he met with Beach and Joyce, and returned with the right to publish Ulysses in the United States. The breakthrough occurred, according to Beach, when Joyce’s old friend Padraic Colum, speaking on Joyce’s behalf, told her there was ‘no contract’. When she disagreed, Colum told her she was standing in the way of Joyce’s interests.17 ‘Floored’, she immediately telephoned Joyce to tell him she relinquished any claim to Ulysses, and he was free to proceed as he wished.18 An epic legal battle over obscenity was assured when Cerf, who had sought the assistance of Ernst’s firm in drafting the contract with Joyce, retained the firm in March 1932 to ‘handle the legal end of this matter’.19 Although the ideas championed by Margaret Anderson, Jane Heap and John Butler Yeats went unheard in The Little Review case, they foreshadowed the arguments that Ernst would advance on behalf of Random House.

Ernst’s fight to legalize Ulysses took advantage of a provision of the Tariff Act of 1930 that accorded a right of judicial review to the putative importer of a book seized as obscene. Specifically, the Act required the government to commence a legal proceeding against the book and authorized the would-be importer to intervene in the proceeding to contest the legality of the seizure.20 Energetically taking the battle to the enemy, Ernst and Cerf had Joyce mail a copy of Ulysses, into which favourable reviews had been pasted, to Random House and made sure that it was seized.21

Ernst and Cerf had a piece of extraordinary good fortune in the prosecution’s concurrence in their effort to steer assignment of the ensuing case to Judge John Munro Woolsey. A graduate of Phillips Academy, Yale University and Columbia Law School, Woolsey had a variety of non-legal interests and was a serious reader with wide-ranging tastes. Especially attuned to the late eighteenth century, he admired and collected the works of Dr Johnson, and was also a student and collector of ‘Colonial and republican architecture, furniture, woodwork [and] glassware’.22 He was a devoted member of the Century Association, a club of ‘amateurs of letters and the fine arts’, and regularly attended Saturday lunch at the club.23 The opinion he would write in the Ulysses case was the work of a master of prose style.

The United States Attorney, George Medalie, thought Ulysses was a very important book and was amenable to trying to time the case’s early activity with a view to having it assigned to a literate judge like Woolsey.24 There was much to commend Woolsey to Ernst. He was the judge who, two years earlier, had ruled in favour of Ernst’s client Marie Stopes that her book Married Love was not obscene. The government had challenged the importation of the book from England even though all references to contraception had been excised. Woolsey’s opinion made no secret of his wide reading, observing that ‘to one who had read Havelock Ellis, as I have, the subject-matter of Dr. Stopes’ book is not wholly new, but it emphasizes the woman’s side of sex questions’, making a plea ‘for a better understanding by husbands of the physical and emotional side of the sex life of their wives’.25 Woolsey held that the book could not be found to be obscene, and thus ended the case without trial by dismissing it as a matter of law. Taking a characteristically sweeping approach that neither cited Bennett and Hicklin, nor discussed their requirement that obscenity be judged on the basis of the work’s effect on the most susceptible reader, Woolsey pronounced that ‘I cannot imagine a normal mind to which this book would seem to be obscene …’

Fortunately, the legal analysis that supported this result had been undertaken a year earlier by Augustus Hand in his opinion for the Second Circuit reversing the conviction of Mary Dennett for using the mails to distribute her pamphlet The Sex Side of Life, which Hand characterized as ‘a truthful exposition of the sex side of life, evidently calculated for instruction and for the explanation of relevant facts’. Vaguely adverting to the First Amendment’s protection of freedom of expression, Hand wrote that ‘while there can be no doubt about its constitutionality, [the statute barring the mailing of obscene books] must not be assumed to have been designed to interfere with serious instruction regarding sex matters unless the terms in which the information is conveyed are clearly indecent.’26 Woolsey’s opinion in the Married Love case piggybacked on this analysis by saying that ‘Dr. Stopes treats quite as decently and with as much restraint of the sex relations as did Mrs. Mary Ware Dennett in “The Sex Side of Life, An Explanation for Young People,” which was held not to be obscene by the Circuit Court of Appeals for this Circuit …’ In typically pithy prose, Woolsey summed the matter up by saying, ‘The present book may fairly be said to do for adults what Mrs. Dennett’s book does for adolescents.’ Shortly after his Married Love decision, Woolsey also ruled in favour of Ernst’s challenge to the seizure of Stopes’ book Contraception.27 In that same year, 1931, Ernst praised Woolsey’s Married Love opinion in a preface to Stopes’ Enduring Passion, which was described in a subtitle as a ‘continuation of Married Love’.28 It is not surprising that Ernst carefully played the case-assignment system to get the Ulysses case assigned to Woolsey.

Woolsey’s role would be especially important because the parties waived the right to jury trial and stipulated that Woolsey would, in effect, be both judge and jury. In a jury trial, Woolsey would have ruled on legal issues and instructed the jury as to the law, but the jury would find the facts, including the ultimate fact of whether the book was obscene. The parties stipulated, however, that Woolsey ‘would decide all questions of law and fact involved and render a general finding thereon’. In other words, Woolsey would both decide the law and sit as trier of fact.

Ernst’s role as defender of Ulysses benefited from the fact that, following Sylvia Beach’s publication of the complete novel in Paris in 1922, it had received some (if far from overwhelming) critical approbation. The usually above-it-all Joyce had contributed to this helpful aura of high-mindedness. Following the suppression of The Little Review he had revised his text to add additional parallels between Ulysses and the Odyssey,29 thus strengthening the link between his work and Homer that he had previously identified in his letter to Carlo Linati.30 Even as he made efforts to inoculate his text against suppression, Joyce did not hesitate to spit in the censor’s eye, adding, for example, additional graphic detail to the Nausicaa episode, such as that, as Gerty leaned back, Bloom’s ‘hands and face were working and a tremor went over her’.31 As publication approached, Joyce doubled down on the parallels with Homer by providing a more detailed elaboration of the Homeric correspondences (and other stylistic features) to the distinguished French novelist, translator, and critic Valery Larbaud, and helping to arrange a lecture and article by Larbaud that emphasized the link between Joyce and Homer.32 Here, once again, Joyce was the beneficiary of Anderson and Heap’s courage: Larbaud had become a ‘raving mad’ admirer of Ulysses when Sylvia Beach sent him The Little Review issues containing episodes of the novel and was thus disposed to promote its reception.33

While publication of the complete novel facilitated the comparison with Homer, it also meant that Ernst was burdened by the concluding Molly Bloom monologue, a highly sexual reverie that Joyce himself called ‘probably more obscene than any preceding episode’.34 Molly’s long reverie filtering the events of her day through her memory of the past begins with the word ‘Yes’ and concludes with her recollection of the occasion when Bloom said ‘the sun shines for you … the day we were lying among the rhododendrons on Howth Head’ and ‘I asked him with my eyes to ask again yes and then he asked me would I say yes to say yes my mountain flower and first I put my arms around him yes and drew him down to me so he could feel my breasts all perfume yes and his heart was going like mad and yes I said yes I will Yes.’35 The following passages from Molly’s reverie particularly attracted the government’s attention:

[…] he must have come 3 or 4 times with that tremendous big red brute of a thing he has I thought the vein or whatever the dickens they call it was going to burst though his nose is not so big after I took off all my things …

I never in all my life felt anyone had one the size of that to make you feel full up he must have eaten a whole sheep after what’s the idea making us like that with a big hole in the middle of us like a Stallion driving it up into you because thats all they want out of you with that determined vicious look in his eye I had to halfshut my eyes still he hasn’t such a tremendous amount of spunk in him when I made him pull it out and do it on me considering how big it is …

… hes heavy too with his hairy chest for this heat always having to lie down for them better for him put it into me from behind the way Mrs Mastiansky told me her husband made her like the dogs do it and stick out her tongue as far as ever she could …

… I wished he was here or somebody to let myself go with and come again like that I feel all fire inside me or if I could dream it when he made me spend the 2nd time tickling me behind with his finger I was coming for about 5 minutes with my legs round him I had to hug him after O Lord I wanted to shout out all sorts of things fuck or shit or anything at all …

… I tried with the Banana but I was afraid it might break and get lost up in me somewhere yes because they once took something down out of a woman that was up there for years covered with limesalts theyre all mad to get in there where they come out of youd think they could never get far enough up and then theyre done with you in a way till the next time yes because there’s a wonderful feeling there all the time so tender how did we finish if off yes O yes I pulled him off into my handkerchief pretending not to be excited but I opened my legs I wouldn’t let him touch me inside my petticoat I had a skirt opening up the side I tortured the life out of him first tickling him I loved rousing that dog in the hotel rrrsssst awokwokawok his eyes shut and a bird flying below us he was shy all the same I liked him like that morning I made him blush a little when I got over him that way when I unbuttoned him and took his out and drew back the skin it had a kind of eye in it they’re all Buttons men down the middle on the wrong side of them Molly darling he called me what was his name Jack Joe Harry Mulvey was it yes …

… yes Ill sing Winds that blow from the south that he gave after the choir stairs performance Ill change that lace on my black dress to show off my bubs and Ill yes by God Ill get that big fan mended make them burst with envy my hole is itching me always when I think of him I feel I want to …

Ill put on my best shift and drawers let him have a good eyeful out of that to make his micky stand for him Ill let him know if thats what he wanted that his wife is fucked yes and damn well fucked too up to my neck nearly not by him 5 or 6 times handrunning theres the mark of his spunk on the clean sheet I wouldnt bother to even iron it out that ought to satisfy him if you dont believe me feel my belly unless I made him stand there and put him into me Ive a mind to tell him every scrap and make him do it in front of me serve him right its all his own fault if I am an adulteress …

… thats what a woman is supposed to be there for or He wouldn’t have made us the way He did so attractive to men then if he wants to kiss my bottom Ill drag open my drawers and bulge it right out in his face as large as life he can stick his tongue 7 miles up my hole as hes there my brown part then III tell him I want £1 or perhaps 30/ – Ill tell him I want to buy underclothes then if he gives me that well he wont be too bad I dont want to soak it all out of him like other women do I could often have written out a fine cheque for myself and write his name on it for a couple of pounds a few times he forgot to lock it up besides he won’t spend it Ill let him do it off on me behind provided he doesnt smear all my good drawers O I suppose that cant be helped Ill do the indifferent 1 or 2 questions Ill know by the answers when hes like that he cant keep a thing back I know every turn in him Ill tighten my bottom well and let out a few smutty words smellrump or lick my shit or the first mad thing comes into my head then Ill suggest about yes O wait now sonny my turn is coming III be quite gay and friendly over it …36

Ernst clearly had some obstacles to overcome, but he approached his task with a commitment to the value and veracity of Joyce’s work. At the outset of the case, he filed with the court a thick compendium of materials designed to show the importance of Ulysses.37 These included a map of the United States showing the location of libraries interested in obtaining and circulating Ulysses, and endorsements by distinguished literary figures, including John Cowper Powys, whose lecture in Chicago many years earlier had inspired Margaret Anderson on her path to founding The Little Review. Whereas Quinn had used Powys only for the back-handed observation that Ulysses was too obscure and philosophical to corrupt, Ernst submitted Powys’s robust pronouncement that Ulysses was one of the ‘very few books that by sheer force of genius mount up during an author’s lifetime to an unassailable and classical position’.38

Ernst’s brief continued the theme of Ulysses’ distinction, explaining how Joyce presented the events of a single day in the context of the structure of the Odyssey, and noting that a copy of the book resided in the Widener Library at Harvard and was on the reading list for a course taught there by T.S. Eliot.39 The brief quoted encomia from J. Middleton Murry, Rebecca West, Arnold Bennett and Ernest Boyd. Moreover, Ernst delivered to Woolsey, who already had a copy of Stuart Gilbert’s James Joyce’s Ulysses, copies of Herbert Gorman’s James Joyce: The First Forty Years and Paul Jordan Smith’s A Key to the Ulysses of James Joyce.40 These efforts paid off: Woolsey’s decision noted that his reading of Ulysses was accompanied by perusal of ‘a number of other books which have now become its satellite’. Ernst’s summation of Joyce the man echoed John Butler Yeats, who had argued, ‘That such a man as Joyce should write filth is incredible.’ The voice of JBY, who had died in 1922, was finally heard in Ernst’s assertion that, ‘It is monstrous to suppose that a man of the stature of Joyce would or could produce a work of obscenity.’41

It remained necessary to come to grips with the text. Confronted with a charge that Ulysses is obscene, the mind of the advocate seems incapable of resisting the argument that it is too obscure to excite. Ernst put it this way: Ulysses ‘is far too tedious and labyrinthine and bewildering for the untutored and the impressionable who might conceivably be affected by it. Such people would not get beyond the first dozen pages.’42 Referring to the New York decision in which – after Quinn had dropped the case – the court referred to the difficulty of James Branch Cabell’s Jurgen in finding it not to be obscene, Ernst argued that ‘beside [Ulysses], Jurgen is a child’s primer. It is not only the language that is baffling; the construction is almost unbelievably involved’.43 As an example of the difficulty of the language, Ernst cited some words selected at random from the book, including whelks, cataletic, houyhnhnm, crubeen, parallax, cygnets, entelechy, yogibogeybox, apocrypha, tympanum, demisemiquaver, videlicet, cruiskeen, oxter, topiary, and epicene.

Moreover, Ernst argued, ‘incomprehensible paragraphs’ recur again and again. The primary example he offered was the one whose content first attracted Anderson. It contained both the Quinn-offending adjective ‘snotgreen’ and the passage that Anderson told Heap was the most beautiful thing they would ever see, and convinced her to risk prosecution to make Joyce’s lyrical prose part of her conversation with her readers. The passage as it appeared in Ernst’s brief illustrates the text’s difficult beauty:

Ineluctable modality of the visible: at least that if no more, thought through my eyes. Signatures of all things I am here to read, seaspawn and seawrack, the nearing tide, that rusty boot. Snotgreen, bluesilver, rust: colored signs. Limits of the diaphane. But he adds: in bodies. Then he was aware of them, sure. Go easy. Bald he was and a millionaire, maestro di color che sanno. Limit of the diaphane in. Why in? Diaphane, adiaphane. If you can put your five fingers through it, it is a gate, if not a door. Shut your eyes and see.44

Ernst refrained from quoting Molly’s soliloquy or other passages that drew the ire of the government. One can empathize with the advocate’s desire to elude the question of obscenity with the red herring of obscurity. But, sooner or later, a rigorous assessment of whether Ulysses was barred by the statutory ban on obscene works must come to grips with the fact that the essence of Ulysses – its warp and woof – is its author’s conviction that sexual desire lies at the heart of things. Ernst sought to whistle his way past this core issue, arguing that ‘though the element of sex is present, it is relegated to a position of relative unimportance’.45 Fortunately, Ernst’s brief provided the building blocks needed to construct the rationale within which Ulysses was not obscene and, to their credit, the appellate judges faced with the task of applying the statute to the book recognized that the current of erotic imagination that drives Ulysses could not be ignored and courageously altered judge-made legal doctrine to accommodate it.

Ernst laid the groundwork for a change in legal doctrine by emphasizing Learned Hand’s suggestion in Kennerley that the standard for obscenity should vary with the mores of the time, and his anticipation of the time when society will ‘believe that truth and beauty are too precious to society at large to be mutilated in the interests of those most likely to pervert them to base uses’.46 Ernst also relied on the decision of the New York Court of Appeals in the Halsey case, which, at about the time that an appeal on behalf of Anderson and Heap would have been decided if Quinn had appealed, recognized that the claimed obscenity of a book could not be judged from a selection of paragraphs, but that the book ‘must be considered broadly as a whole’.47 The federal court was not bound to follow a decision of the New York court, but the decision by the distinguished New York judges was inherently persuasive.

Within this legal framework, Ernst’s brief wove an argument that sounded the important notes of the beauty and veracity of Joyce’s writing. Whereas he was more comfortable relying on quotations from critics to establish the beauty of Ulysses, he spoke in his own voice in support of the novel’s truthfulness:

It is a many-faceted crystallization of life and thought. It records the doubts and fears, the joys and torments, the swirling consciousness, of a handful of characters, and informs the experiences of those characters with the quality of universality. Sex is present, to be sure; but sex is part of man’s existence. One can no more say that Ulysses is obscene than that life or thought is obscene.48

In the concluding section of his brief Ernst sought to fortify the judges who would have to deal with the eroticism and earthiness of Joyce’s prose by forcefully stating the importance of truth in literature as an end in itself. Adopting Shakespeare’s metaphor of the mirror being held up to nature that Wilde had rejected, Ernst insisted, ‘The notion of pornography is wholly inconsistent with an artist’s serious effort to mirror and perpetuate truth in literature.’49 In a turning of the tables worthy of Wilde himself, Ernst supported his argument by reference to critic Holbrook Jackson’s comment, a variation of Wilde’s pronouncement in the preface to The Picture of Dorian Gray, that Ulysses is ‘neither moral nor immoral … [Joyce] simply records like Homer’.50 Whereas Wilde insisted that literature’s beauty protected it from claims of immorality, Ernst emphasized that Ulysses transcended issues of morality because of its truth.

The most impassioned paragraph in the brief reflects the influence of JBY’s mentors J.S. Mill and Macaulay. Much as Mill’s influence had led JBY to praise Joyce’s ‘terrible veracity’, Ernst’s view of Joyce’s importance was informed by Mill’s warning of the harm caused to humanity by the stifling effect on thought and expression of a charge of immorality or irreligion – the passage he quoted in ‘the case against censorship’ in his memoir.51 Ernst’s brief came alive when Mill’s warning intersected with Macaulay’s praise of Milton’s fearless carrying of ‘the torch of truth’. Ernst argued that Macaulay’s praise of Milton’s willingness to speak out in favour of divorce and regicide ‘applied with equal force to Joyce’. His quote from Macaulay’s essay on Milton set a high bar for Joyce to scale:

There is no more hazardous enterprise than that of bearing the torch of truth into those dark and infected recesses in which no light has ever shone. But it was the choice and pleasure of Milton to picture the noisome vapours and to brave the terrible explosion …52

Ernst urged that Joyce was equal to the challenge:

It may be that in Ulysses [he argued,] Joyce has seen fit to cast light into some of the murky chambers of the human mind. It is only by such exposure that we can hope to banish darkness and taint. Joyce’s penetration and courage deserve praise, not condemnation.53

Judge John Munro Woolsey. (Courtesy John M. Woolsey III)

Ernst’s powerful argument found a receptive audience in Judge Woolsey. Significantly for subsequent prosecutions of literature, Woolsey dealt with Ulysses primarily in terms of its imaginative and stylistic originality. His supple mind identified and articulated the link between beauty and truth. In essence, he found that the beauty of Joyce’s style enabled the written word to convey the truth of human consciousness. His articulation of this insight broke new ground by deciding a legal question on the basis of an analysis of literary technique. Without explicitly using the term ‘stream of consciousness’, Woolsey observed that Joyce was experimenting in a new literary genre in which he attempted

to show how the screen of consciousness with its ever-shifting kaleidoscopic impressions carries, as it were on a plastic palimpsest, not only what is in the focus of each man’s observation of the actual things about him, but also in a penumbral zone residua of past impressions, some recent and some drawn up by association from the domain of the subconscious.54

This approach, Woolsey wrote, required him to focus on Joyce’s veracity, what Woolsey called ‘his honest effort to show exactly how the minds of his characters operate’.

The important point here is that, according to Woolsey, the characters are not consciously indulging themselves in erotic imaginings. Instead, the reverse is true. The primal energy of Eros is forcing itself on the characters. Accordingly, if there is a strong sexual undercurrent in Ulysses, it is not attributable to any fault of either Joyce or the reader: ‘If Joyce did not attempt to be honest in developing the technique which he has adopted in “Ulysses” the result would be psychologically misleading and thus unfaithful to his chosen technique,’ said Woolsey, adding that ‘such an attitude would be artistically inexcusable’. Woolsey’s analysis brought him to the precise point John Butler Yeats made in his 1920 letter to Quinn: the reason for the outcry against Joyce was his terrible veracity. As Woolsey framed the point: ‘It is because Joyce has been loyal to his technique and has not funked its necessary implications, but has honestly attempted to tell fully what his characters think about, that he has been the subject of so many attacks and that his purpose has been so often misunderstood and misrepresented.’ Woolsey realized – and had the courage to say – that Joyce was considered obscene because ‘his attempt sincerely and honestly to realize his objective has required him incidentally to use certain words which are generally considered dirty words and has led at times to what many think is a too poignant preoccupation with sex in the thoughts of his characters.’ Again emphasizing Joyce’s veracity, Woolsey found that ‘each word of the book contributes like a bit of mosaic to the detail of the picture Joyce is seeking to construct for his readers’. There is no ‘dirt for dirt’s sake’.

Law and literature blend seamlessly here because it is Joyce’s mastery as a writer that convinces Judge Woolsey of the grievous wrong that would be done were the law to silence him. Woolsey’s opinion responds to a feature of Joyce’s writing pinpointed by the great University College Dublin professor Gus Martin when he wrote that Joyce’s achievement was the invention of ‘a range of technical and linguistic resources’ of the necessary ‘power and range’ to break ‘the sound barrier of … social reticence, the wall – at least the façade – between the public and private self that Victoria’s reign had so consolidated, and which the Catholic Church in Ireland had so reinforced’.55 Molly Bloom’s piercing of the sound barrier between public and private showed Woolsey the way to break the hold of the Victorian Hicklin case on the law of obscenity. Importantly, Ernst’s emphasis on the quality of Ulysses as literature had provided Molly a platform from which she commanded serious attention for the argument she crafted from her bed in Eccles Street. Woolsey could not help but find it a compelling case for putting off pretence and recognizing the role of the erotic imagination in daily life. Molly’s question – ‘what else were we given all those desires for Id like to know’ – demanded an answer from a judge being asked to ban a book that draws attention to them. They ‘didnt make me blush’, argued Molly: ‘why should it either it’s only nature’.56 Molly knew her target. When, after the litigation was over, Ernst asked Woolsey to inscribe ‘some sweet phrases’ on his photograph, Woolsey sent a paraphrase of a fragment of eighteenth-century writing that had long fascinated him and suggested his susceptibility to an argument like Molly’s: ‘I fear, Sir,’ the text read, ‘that you may consider these protestations unmaidenly, but by the laws of Nature we are bound to love, although the Rules of Modesty oftentimes compel us to conceal it.’57

Woolsey’s implicit acceptance of Molly’s argument is apparent in his framing of the core issue in terms of what JBY called Joyce’s ‘terrible veracity’. Woolsey put the question this way: ‘when such a real artist in words, as Joyce undoubtedly is, seeks to draw a picture of the lower middle class in a European City, ought it be impossible for the American public legally to see that picture?’ Woolsey’s appreciation for the value of the truth and beauty of Joyce’s novel enabled him to swallow the admittedly ‘strong draught’ of Ulysses. It remained to reconcile his conclusion with the federal law of obscenity, which still adhered to the teaching of Hicklin that a book was obscene if even isolated passages excited sexual desire in the most susceptible reader. Woolsey ignored Hicklin, and simply plunged ahead with the ipse dixit that the proper test was a reading of the book in its entirety in terms of how it would affect ‘a person with average sex instincts – what the French would call “l’homme moyen sensuel” …’

Even the valiant Woolsey paled at the prospect of offering himself as the barometer of whether Ulysses excited lustful thoughts. Instead, he reported what was, in effect, the combined decision of himself and two friends, who retained their anonymity in Woolsey’s opinion, but who are identified in Ernst’s files as Henry Seidel Canby, editor of The Saturday Review of Literature, and Charles E. Merrill Jr, a scholar and publisher.58 This private consultation was an extraordinary departure from the normal procedure pursuant to which the parties have an opportunity to be heard on whether the court can consider expert opinion in reaching a decision. Under today’s Federal Rules of Evidence, a trial court may appoint an expert whose ‘scientific, technical or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue’, but the parties participate in the process. The court must inform the expert of his or her duties either by a writing that is filed in the court file or orally at a conference in which the parties have an opportunity to participate. Moreover, the expert must advise the parties of any findings; may be deposed by any party; may be called to testify; and is subject to cross-examination.59 Woolsey was operating in a more informal atmosphere, and no objection was made to his consultation. Interestingly, both Merrill and Canby were fellow members of Woolsey’s in the Century Association.60 Woolsey’s carefully hedged report avoided the question whether and to what extent any of the three had been stimulated to lustful thoughts in the course of duty. Instead, the report was that ‘in its entirety’ the ‘net effect’ of Ulysses was not ‘to excite sexual impulses or lustful thoughts’. Woolsey added that ‘… whilst in many places the effect of Ulysses on the reader undoubtedly is somewhat emetic, nowhere does it tend to be an aphrodisiac.’

Woolsey’s favourable decision was vulnerable to the argument that, whatever the ‘net effect’ of Ulysses, it contained specific passages that were obscene, and the book thus ran afoul of the statute under the traditional Hicklin rule. There were other bases for challenging Woolsey’s decision on appeal. He had also departed from Hicklin in substituting ‘l’homme moyen sensuel’ for ‘those most susceptible’ as the barometer of obscenity, and had ignored precedent by considering the opinion of critics as to Ulysses’ literary merit on the question of its obscenity.

Although all of the above issues were subject to appellate review, Ernst’s files suggest that the prosecution was not inclined to appeal Woolsey’s decision.61 However, following Franklin Roosevelt’s election as president, the Republican United States Attorney George Medalie resigned. His replacement, Martin Conboy, who, as noted above, was a former officer of the New York Society for the Suppression of Vice, seized this opportunity to preserve the fruits of Sumner’s victory over Quinn. Sumner had greeted Woolsey’s opinion by branding it ‘a literary review trying to explain away the appearance of admitted obscenity and filth’.62 Conboy agreed, and sought permission to appeal from the solicitor general, a presidential appointee who oversees the government’s appellate litigation. The solicitor general appointed by Roosevelt in May 1933 was James Crawford Biggs, who had suffered a ‘series of stumbles’ as the government’s advocate in the Supreme Court before resigning in March 1935.63 His decision permitting an appeal was based on a memorandum by the Assistant Attorney General in charge of the Criminal Division, Joseph B. Keenan, a graduate of Brown and Harvard Law School, who would soon gain a national reputation prosecuting the notorious bank robber and kidnapper Machine Gun Kelly, and was later chief prosecutor in the International Military Tribunal in the Far East following World War II.

Keenan’s memorandum shows how a legal judgment as to whether a book is obscene can be affected by the reader’s perception of the book’s literary merit. His analysis began with the observation – likely shared by many readers – that ‘the book is very hard to read, [and] seems to have little if any plot …’ Turning the ‘Ulysses is too obscure to excite’ argument on its head, Keenan posited that Ulysses ‘depends for its success, if it may be deemed to be successful, upon the filthy, obscene and coarse matter contained in its pages, which appears to make it popular with certain elements of the American public’. Keenan thought the book obscene ‘unless it is lifted out of such class by its artistic attainments’. On that point, he believed that Ulysses had not attained ‘a position in the field of literature’ capable of lifting it out of the class of the legally obscene.64 Thus an appeal was authorized because Keenan was not impressed by Joyce’s accomplishments as a writer.

Conboy’s brief to the Second Circuit argued that Woolsey had erred by disregarding Hicklin in all the respects enumerated above, and asserted that a mere reading of the book established its obscenity under the Hicklin test.65 Interestingly, in view of the fact that Keenan’s authorization of the appeal turned on his view of the quality of Joyce’s writing, Conboy’s brief argued that it was reversible error for Woolsey to have considered the ‘literary importance’ of the work on the question of obscenity. Finally, recognizing the importance of Woolsey’s reliance on Joyce’s truthfulness, Conboy argued that a ‘book that is obscene is not rendered less so by reason of the fact that the matter complained of is in fact truthful’.66 Ernst’s brief essentially repeated his written submissions to Woolsey.

At oral argument Conboy condemned the book as ‘filthy, offensive to modesty, [and] subversive of decency’,67 spending hours reading allegedly offending passages aloud, with emphasis on the concluding forty-six pages consisting of, as the New York Herald Tribune put it, ‘the stream-of-thought soliloquizing of Mrs. Molly Bloom’.68 The New York World-Telegram depicted Conboy ‘blushing, stammering, rocking nervously on his heels’ as he read twenty-five offending passages, while the three judges ‘looked solemn’.69 Asked if he was going to read the whole book, Conboy promised ‘a generous sampling’.70

Conboy had no trouble convincing one of the three judges, his old colleague on the Committee for Relief in Ireland, Martin Manton, whose dissenting opinion rhetorically inquired, ‘Who can doubt the obscenity of this book after a reading of the pages referred to, which are too indecent to add as a footnote to this opinion?’71 Manton, who was appointed to the District Court in New York in 1916 at age thirty-six, and to the Second Circuit two years later, had proceeded directly to Columbia Law School from public schools in Sayville, Long Island. He put himself through law school by working nights and weekends.72 After a long and influential judicial career, he was convicted of bribery in 1939 for soliciting and accepting bribes of $664,000 (more than $11 million in today’s dollars) from litigants in cases pending before him.73 Manton’s opinion sounded unattributed echoes of Plato’s rationale for banning poets from his ideal state. For example, his pronouncement that ‘the court cannot indulge any instinct it may have to foster letters’ is reminiscent of Plato’s banning of poets, as is his rationale that ‘the statute is designed to protect society at large …[and thus] notwithstanding the deprivation of benefits to a few, a work must be condemned if it has a depraving influence’.

Fortunately for Joyce and his readers, the two other members of the panel were Learned Hand, who had questioned the soundness of the Hicklin rule twenty years previously in Kennerley, and his cousin Augustus Hand, judges of robust intellect and trenchant pen. The Ulysses case presented Learned Hand as an appellate judge with exactly the occasion he had hoped for when, as a district judge, constrained by Hicklin from dismissing the indictment against Kennerley, he questioned ‘whether in the end men will regard that as obscene which is honestly relevant to the adequate expression of innocent ideas, and whether they will not believe that truth and beauty are too precious to society at large to be mutilated in the interests of those most likely to pervert them to base uses’.74

Learned Hand’s private memorandum to his fellow judges in the Ulysses case, now available in the Harvard Law School library, provides unvarnished insight into his thinking as he approached the oral argument. The core of his view was that, while some passages of the novel

could excite lustful feelings … [,] there are themes whose truthful and complete expression involves what taken alone ought to have no immunity … [and in the case of Ulysses] the offending passages are clearly necessary to the epic of the soul as Joyce conceived it, and the parts which might be occasion for lubricity in the reader are to my thinking not sufficient to condemn a very notable contribution to literature.75

Both Hands agreed that Woolsey’s decision should be affirmed, but placed on a more solid legal footing, preferably in language that, unlike Woolsey’s colourful prose, which Cerf had published as a preface to the Random House Ulysses, could not be mined for quotable phrases. Recognizing that Learned’s vigorous imagination was incapable of producing an opinion devoid of quotable phrasing, they agreed that Augustus would write the affirmance.76 Years later, reminiscing in his late eighties, Learned Hand remarked that Woolsey was ‘a bit of a show-off … given to phrases’. In an interesting observation on the relation of law and literature, Hand noted that Woolsey thought himself ‘literary’, adding ‘that’s a very dangerous thing for a judge to be. I didn’t say it was a bad quality; I said it was a dangerous one’, fine if a judge is ‘brilliant’ and exhibits ‘a complete aptness for the occasion’.77

Judge Learned Hand. (Copyright Corbis)

Augustus Hand’s published opinion for the majority rationalized affirmance of the District Court in terms of existing legal precedent and framed general principles to govern future cases. In view of the heated dissent filed by Manton, Augustus Hand succumbed to the need to write convincingly and, thus, quotably. Reflecting appreciation for Woolsey’s reliance on Joyce’s technique, his opinion begins by identifying Joyce ‘as a pioneer of the “stream of consciousness” method of presenting fiction’, which ‘attempts to depict the thoughts and lay bare the souls of a number of people … with a literalism that leaves nothing unsaid’. Hand’s description of the text highlights its truth and beauty: ‘it seems’, he wrote, ‘to be sincere, truthful, relevant to the subject, and executed with real art’.

Then, in one of those touches that makes judging an art, Hand brought Ulysses within a line of precedents that permitted a greater range of sexual reference in scientific works by framing ‘the question before us’ as ‘whether such a book of artistic merit and scientific insight should be regarded as “obscene” within section 305(a) of the Tariff Act (emphasis added)’. Molly would have been proud to see her insight lauded as scientific. Significantly, Hand’s recognition of the novel’s ‘scientific insight’ focused on Joyce’s truthfulness as a counterpart to what the opinion recognized as Joyce’s ‘artistic merit’. These twin aspects of the book are captured in the opinion’s observation that Joyce’s novel ‘is a sincere portrayal with skillful artistry of the “streams of consciousness” of his characters’.

Characterizing his decision in United States v. Dennett as holding that ‘works of physiology, medicine, science and sex instruction are not within the statute, though to some extent and among some persons they may tend to promote lustful thoughts’, Hand concluded that ‘we think the same immunity should apply to literature as to science, where the presentation, when viewed objectively, is sincere, and the erotic matter is not introduced to promote lust and does not furnish the dominant note of the publication’.78 In finding that Ulysses was entitled to such immunity, Hand emphasized the book’s ‘evident truthfulness in its depiction of certain types of humanity’.

Hand’s recognition that society could no more thrive without truthful works of fiction than without truthful works of science transformed the law of obscenity. His equation of literature and science in a formula with truth at its core provided an encouraging answer to Ezra Pound’s lament over Joyce’s earlier inability to find a publisher for A Portrait of the Artist as a Young Man: ‘If we can’t write plays, novels, poems or any other conceivable form of literature with the scientist’s freedom and privilege, with at least the chance of at least the scientist’s verity, then where in the world have we got to, and what is the use of anything, anything?’79

Tacitly recognizing that his approach was contrary to Hicklin and Bennett, Hand looked to the New York Court of Appeals decision in Halsey v. New York Society for Suppression of Vice – the case decided by the New York Court of Appeals about the time an appeal from Anderson and Heap’s conviction would have been heard had Quinn appealed – as reflecting the correct standard that a work should be judged as a whole, and not on the basis of isolated passages, and that ‘the proper test of whether a given book is obscene is its dominant effect’. In this context, Hand found that while it could not be doubted ‘that numerous long passages in Ulysses contain matter that is obscene under any fair definition of the word … yet they are relevant to the purpose of depicting the thoughts of the characters and are introduced to give meaning to the whole, rather than to promote lust or portray filth for its own sake’, and thus the book as a whole was not within the statutory prohibition. Reflecting his careful attention to Conboy’s long quotations from Molly’s monologue, Hand found that the ‘net effect even of the portions most open to attack, such as the closing monologue of the wife of Leopold Bloom, is pitiful and tragic, rather than lustful’. Hand showed that he had also attended to Ernst’s ‘incomprehensibility’ argument, but did not find it determinative. ‘Page after page of the book is, or seems to be, incomprehensible’, he wrote, but the important point for him was that ‘many passages show the trained hand of the artist’.

Hand created an important role for literary critics in applying the ‘dominant effect’ test by holding that persuasive evidence of the dominant effect included, in addition to relevancy of the objectionable parts to the theme, ‘the established reputation of the work in the estimation of approved critics …’ Literature and law thus coalesce to enable great works of the mind to find their audience. Opening the courtroom door to literary critics eliminated the anomaly of the rickety two-tiered structure created by the stringent general prohibition of all erotic matter with a jerry-built exception for ‘classics’. Ernst’s brief had tried to bring Ulysses within the traditional exception for classics, and supported his argument by pointing to the fact that he had obtained permission from the Secretary of the Treasury to import a copy of Ulysses under a provision of the Tariff Act of 1930 that, as construed by the customs authorities, permitted the Secretary to allow entry to a copy of a classic for personal use by the applicant.80 Hand’s opinion, however, wisely ignored Ernst’s invitation to create a separate rule for classics. Instead, while adverting to Ulysses as ‘a sort of contemporary classic’, Hand established a standard and procedure sufficiently capacious to apply uniformly to all books. The trier of fact would assess the ‘dominant effect’ of the book, without regard to the particular susceptibilities of those most open to potential depravity, and, in doing so, could consider the views of critics both favourable and unfavourable. By explicitly recognizing the traditional exception for ‘classics’ and broadening it to include all works of literary value, Hand’s opinion had the effect of encouraging the work of new authors by facilitating their access to a wide audience.

The admission of critical opinion as to an allegedly obscene work’s literary merit was an important development in the law of obscenity. It came about because Woolsey and the Hands were convinced that the cases precluding such evidence were wrongly decided. Ernst and Cerf’s stratagem of attaching copies of favourable reviews to the book that was imported and became the subject of the action under the Tariff Act was irrelevant to this important development in the law.81 Contrary to Birmingham’s suggestion that the presence of the opinions permitted Ernst to ‘base arguments on them’,82 their mere presence did not make them relevant or admissible evidence, either for the truth of their contents, or simply for the fact that the various critics held these opinions. Ernst could have as easily brought them in his briefcase. It took the Second Circuit’s changes in the law of obscenity and the rules of evidence to make the opinions admissible and probative.

Hand’s opinion forthrightly conceded

that numerous long passages in Ulysses contain matter that is obscene under any fair definition of the word cannot be gainsayed; yet they are relevant to the purpose of depicting the thoughts of the characters and are introduced to give meaning to the whole, rather than to promote lust or portray filth for its own sake.

With characteristic candour, Hand recognized that his entire approach broke new ground. ‘It is argued,’ he said, ‘that United States v. Bennett … stands in the way of what has been said, and it certainly does’. Observing that Bennett and Hicklin ‘would exclude much of the great works of literature and involve an impracticability that cannot be attributed to Congress’, the Hands exercised their power as appellate judges to overrule Bennett, thus consigning Hicklin to the museum of discarded Victorian ideas and unburdening society from the leash identified by Learned Hand two decades earlier when he wrote in Kennerley that ‘to put thought in leash to the average conscience of the time is perhaps tolerable, but to fetter it by the necessities of the lowest and least capable seems a fatal policy’.83

Judge Manton’s dissent portrayed the majority decision as elevating ‘the benefits and pleasures derived from letters by those who pose as the more highly developed and intelligent’ over the ‘protection of the morals of the susceptible’, among whom he counted ‘the average less sophisticated member of society …’84 The elitism inherent in the judiciary’s taking it upon itself to ‘protect’ certain categories of readers from the benefit of what many others regarded as great literature seems to have been lost on Manton.85

Augustus Hand concluded his Ulysses opinion on a note that, echoing Woolsey’s emphasis on the experimental nature of Joyce’s writing, stressed the retarding effect on cultural growth of an overly ‘protective’ approach to the law of obscenity. ‘Art’, he cautioned, ‘cannot advance under compulsion to traditional forms, and nothing in such a field is more stifling to progress than limitation of the right to experiment with a new technique.’ Whereas Quinn had believed – and harmfully conceded to the court – that Joyce had pushed his experiment too far, Hand declared it a fundamental precept governing the relation of law and literature that law must avoid stifling experimentation in literature.

This historic determination that literature is entitled to a qualified immunity from the law of obscenity validated at last the ideas of Margaret Anderson, Jane Heap and John Butler Yeats. The notion that literature could not be obscene was Anderson’s bedrock belief, and the Hands’ reliance on the value of truthfulness in literature sounded the characteristic note of JBY. Heap’s essay ‘Art and the Law’ had blended the claims of both truth and beauty in support of her conclusion that the only question the law could properly pose to Ulysses was ‘Is it literature?’ As to truth, Heap argued simply ‘girls lean back everywhere’; as for beauty, she insisted it is the artist who creates love.

The Ulysses opinion was not as absolute as Anderson and Heap would have wanted. It contained the qualifications that literature’s immunity applied only where ‘the presentation, when viewed objectively, is sincere and the erotic matter is not introduced to promote lust and does not furnish the dominant note of the publication’. The United States Supreme Court would eventually refine to a minimum – but not totally eliminate – these qualifications. Even given the qualifications on literature’s immunity, however, the Hands’ focus on the truth and beauty of Ulysses as literature fundamentally altered the law of obscenity, and vindicated one of the ideas on which The Little Review was founded, Anderson’s belief, as stated in her inaugural ‘Announcement’, ‘that all beautiful things make a place for themselves sooner or later in the world’.

Hand’s opinion for the Second Circuit was not necessarily the last word. Conboy vigorously urged the Department of Justice to petition the United States Supreme Court to grant a writ of certiorari to review the Second Circuit’s decision, and expressed his confidence that if discretionary review were granted, the Court would reverse.86 In a memorandum concurred in by Assistant Attorney General Keenan, who had authorized the appeal to the Second Circuit, career attorney Harry S. Ridgely recommended to Solicitor General Biggs that Supreme Court review not be sought.87 His conclusion was that ‘unless the Government is prepared to insist that the obscenity of a book or publication is to be determined by the obscenity of any particular passage of such a book or publication, … we could not succeed in reversing the judgment below even though we …’ convinced the Court to review the Hands’ decision. The implication that such an argument would not succeed is reinforced by Ridgely’s observation that ‘[o]ne reading the carefully prepared and exhaustive brief of the claimant [Random House] is not surprised at the holding of the Circuit Court of Appeals’.

Logic, and perhaps the vigour of Conboy’s recommendation, suggested that Ridgely also address the question whether the Supreme Court would review the case at all. Based on a highly technical and detailed analysis of Hicklin and Bennett, Ridgely concluded that, although those decisions had said that an allegedly obscene book should not be considered as a whole, the precise facts of those cases were not inconsistent with permitting the trier of fact to consider the work as a whole, and that therefore Woolsey’s decision was merely a determination of fact, and the Supreme Court would not review the Second Circuit’s affirmance of a finding of fact. In this highly abstract universe, it seemed to Ridgely that ‘the question presented cannot be characterized as one of gravity or one of general importance’. Whether by accident or design, Ridgely’s memorandum did not take into account that in the real world courts had long been acting on their understanding that Bennett and Hicklin meant what they said, and that the Second Circuit’s opinion had expressly overruled Bennett, consigned Hicklin to the dustbin, changed the test for measuring obscenity, and authorized reliance on expert testimony by scholars and critics on the question whether a book was obscene. The ever-vigilant John Sumner had no doubt of the need to reverse the Second Circuit’s decision. His view, as conveyed by letter to the Solicitor of the Post Office Department, was that ‘certainly if the decision of the Circuit Court of Appeals stands it is difficult to know what book may be successfully prosecuted under the Federal law for obscenity’.88 Sumner’s letter did not alter the decision of Solicitor General Biggs, endorsed on Ridgely’s memorandum: ‘No certiorari.’ Thus did Ulysses’ turbulent voyage through the courts come to an end. Sumner lamented this reversal of the triumph he had achieved over Quinn a decade earlier, writing to Keenan that ‘the good old American fighting spirit is lacking when the Department fails to follow up on a hard-won partial victory …’89

Ernst’s forceful use of literary criticism was a critical factor in turning the tables. This is apparent from the fact that Augustus Hand was more receptive to Ernst’s vigorous arguments in support of Ulysses than he had been to Quinn’s moralistic defence of ‘Cantleman’s Spring-Mate’. While it is true that ‘a decade of sustained onslaught on social prudery of all kinds’90 preceded Hand’s Ulysses decision, that assault was well underway by the time of Cantleman in 1917. Learned Hand’s opinion in Kennerley in 1913 shows that the judiciary was then open to a forceful argument based on a literary work’s truth and beauty. That argument could have prevailed for Lewis in 1917 and for Joyce in 1921 had Quinn had the wisdom and courage to advance it.

Quinn’s biographer cites approvingly Jackson Bryer’s statement that Ernst’s arguments in defence of Ulysses ‘were not very different from those of John Quinn’.91 This reflects a fundamental misunderstanding. Although JBY had handed Quinn the argument that Joyce’s veracity enhanced humanity’s ability to live more deeply in fuller understanding of itself, Quinn failed to advance that argument. Conversely, Ernst argued forcefully that Joyce banished darkness and taint by carrying the torch of truth into the murky chambers of the human mind. Moreover, while Ernst presented Ulysses as one of the most significant and beautiful works of our time,92 Quinn ran away from the beauty of Joyce’s prose, and denigrated it as a failed experiment. Bryer cautiously says that Quinn ‘suggested … the literary excellence’ of Ulysses.93 This is true, but Quinn abandoned the argument the moment it met judicial scepticism, and never developed a record or forced an appellate determination on the point that Ulysses’ beauty and truth as literature were a defence to its asserted obscenity. To the contrary, an appeal would have been doomed by Quinn’s concession that Joyce’s ‘strong, hard filth’ rescued him from ‘the devotion to art of a soft flabby man like Wilde’. The other ground of similarity instanced by Bryer – the work’s ‘probable effect on the reader’94 – simply underscores how different Quinn’s approach was from Ernst’s. Although neither was able to resist the argument that the book was too obscure to excite, they differed fundamentally on its effect on those who engaged with its difficulty. Whereas Quinn argued that Joyce’s ‘filth’ would act as a deterrent to certain kinds of sexual conduct, Ernst lauded Joyce’s prose as the ‘torch of truth’.

Ernst’s commitment to freedom of expression contrasted sharply with Quinn’s deeply ingrained and culturally reinforced reluctance to be identified as a champion of sex literature, and this difference affected the arguments they made and the results they achieved. Did differences in educational background contribute to these different approaches and results? Significantly, Quinn had only one year of undergraduate education, while Ernst studied at a liberal arts college that featured the kind of education the American Academy of Arts and Sciences credits with ‘emphasizing critical perspective and imaginative response’ and developing ‘inquisitiveness, perceptiveness, the ability to put a received idea to a new purpose, and the ability to share and build ideas with a diverse world of others’.95

A liberal education’s focus on the value of beauty and truth is particularly apparent in the study of literature. As suggested by Judge Richard Posner – a Yale English major and a great exemplar of the fertile impact of literature on the legal mind – literature is a fruitful component of a judge’s education ‘because of its effects in stretching students’ imaginations, multiplying their perspectives, broadening their intellectual and emotional horizons, offering them a range of vicarious experiences, and assisting them to read difficult texts, express complex thoughts, and write and speak correctly, fluently and persuasively’.96 No one knew or exemplified this better than Judge Learned Hand, who observed that in cases presenting issues about societal values

it is as important that a judge … have a bowing acquaintance with Acton and Maitland, with Thucydides, Gibbon, and Carlyle, with Homer, Dante, Shakespeare and Milton, with Machiavelli, Montaigne and Rabelais, with Plato, Bacon, Hume and Kant, as with the books which have been specifically written on the subject … for in such matters everything turns upon the spirit in which the question is approached.97

Posner and Hand represent two particular ways of expressing the general idea that an education in the humanities fosters a humane approach to the development of the law.

Although Quinn was a serious reader and a connoisseur of art, he approached the law as a series of rules existing independently of the body of ideas developed in a university education. Quinn’s 16 October 1920 letter to Pound reflects his belief that the law consists of a series of fixed and isolated precepts. He insists that there is a clear ‘law’ that governs the situation of Ulysses, that he knows what that law is, and that the way for the law to be changed is through legislation brought about by a change in public opinion.98 Indeed, Quinn is so certain that nothing more is at stake than application of existing law to The Little Review that he hectors Pound that ‘if you should get the idea into your head that there is any principle involved in this thing, or that the freedom of literature is at stake, … then I have nothing more to say’.99

Quinn’s way of thinking about Ulysses reflects the way law was taught at Georgetown when he received his initial legal education. No undergraduate education was required as a prerequisite, and classes presented the law as a series of rules to be memorized. Professors assigned passages from a textbook to students in advance of class ‘which the student is expected to master as thoroughly as he can before the recitation hour’, following which the ‘lecturer then goes over the ground covered by the text, explaining what is obscure or difficult …’100 This kind of legal education, which fostered Quinn’s approach to Ulysses, differed sharply from a competing approach that located law school within the university as a whole and employed a methodology, the case method, that was based on the idea that existing legal precedents can be ‘read in light of the dominant and emergent values of the pertinent culture’ to yield a governing principle that should apply at the time and place of decision.101

Ironically, it was the introduction of this competing approach at Columbia University that led to the creation of the law school attended by the three New York Court of General Sessions judges whom Quinn denigrated as ‘stupid’. All three were graduates of New York Law School, an institution – not to be confused with New York University School of Law – founded in 1891 by the erstwhile leaders of the Columbia Law School to escape what they regarded as the ‘Harvardizing’ of Columbia, and to continue teaching law as a series of rules as it had been taught at Columbia and as Quinn learned it at Georgetown.102 One of the principal aspects of ‘Harvardizing’ to which they objected was the integration of a practice-oriented law school into the academic setting of a university. The new president of Columbia, Seth Low, incurred their enmity by following the example of Harvard, which, under the leadership of Dean Christopher Columbus Langdell in the 1870s, had required an undergraduate degree as a prerequisite to admission to law school, expanded the programme from two years to three, and made the study of law an academic discipline rather than a programme of practical training.103 While the longtime dean of Columbia Law School, Theodore Dwight, thought of legal education as a means of training practitioners, Low defined it in scholarly and academic terms.104 Low’s views were reflected in the observation of one of the reformers, Nicholas M. Butler, that ‘the student who lives in an atmosphere of literature, art, science and philosophy can hardly pursue his professional course in an unthinking and routine way’.105

The founders of New York Law School also objected to Low’s insistence on introducing to Columbia the case method of teaching law that had been pioneered by Langdell at Harvard. Whereas Langdell maintained that the proper method of learning law was to require students to distill governing principles from judicial opinions by the inductive method, the founders of New York Law School wanted to continue using the so-called Dwight method, employed at Columbia during Dwight’s thirty-three years as dean, in which students learned a series of legal principles by reading textbooks.

Judge Benjamin Cardozo, one of the giants of the American judiciary, a member of the majority in the Halsey decision that reformed the New York law of obscenity, and author of the seminal 1925 article ‘Law and Literature’, was a student at Columbia when the case method replaced the Dwight approach.106 Cardozo praised the new method, writing that ‘no longer did the student learn by rote out of a text book some hasty and imperfect generalization, swallowed whole as it was given him …’ Rather, ‘with the cases themselves before him, he analyzed the facts, dissected the reasoning, criticized the conclusion’.107 This approach was fundamentally different from the slavish application of fixed rules reflected in Quinn’s letter to Pound about Ulysses.

To be sure, Quinn was exposed to the case method at Harvard Law School, where his two years coincided with two of Learned Hand’s three years.108 Conversely, Ernst was a graduate of New York Law School, an institution founded to resist the case method. Nonetheless, Quinn’s first experience of legal education at Georgetown, which emphasized rote learning of so-called ‘black letter law’, is consistent with his approach to the question of Ulysses’ alleged obscenity. Ernst’s creativity and ability to put a received idea to a new purpose survived the ‘law as a received text’ approach of his legal education. Ernst readily accepted Learned Hand’s suggestion in Kennerley that lawyers should lead what Ernst’s brief in Ulysses called ‘the salutary forward march of our courts’ to ‘liberalize the law of obscenity and to thrust back the narrow frontiers fixed by prudery’.109 These admittedly limited facts suggest that perceiving law as part of what Columbia reformer Nicholas M. Butler called an ‘atmosphere of literature, art, science and philosophy’ inculcates qualities of mind conducive to effective advocacy, but it matters little whether that education occurs in law school or elsewhere. Certainly the atmosphere described by Butler permeates Ernst’s briefs and Woolsey’s and Hand’s opinions, but is sorely missing from Quinn’s approach to the case. The federal decisions in the Ulysses cases are a testament to the ability of lawyers and judges to apply pre-existing precedent to new situations on the basis of core principles like the societal importance of beauty and truth.

---

1 Beach 201.

2 Alden Whitman, ‘Morris Ernst, “Ulysses” Case Lawyer, Dies’, New York Times (23 May 1976) 40 (‘Whitman’); Morris Ernst, A Love Affair with the Law (New York: Macmillan, 1968) 28–30; Mark C.N. Sullivan, ‘Never on Sunday’, University of New Hampshire Magazine (Spring 1912).

3 Morris Ernst and Alexander Lindey, The Censor Marches On (New York: Da Capo Press, 1971) (“Censor”) 235.

4 Whitman.

5 Lindey’s memo is reprinted in a useful compendium of Ernst’s files and related documents in Michael Moscato and Leslie LeBlanc, eds, The United States of America v. One Book Entitled Ulysses By James Joyce, Documents and Commentary – a 50-Year Retrospective (Frederick: University Publications of America, 1984) (‘Documents’) 77. The original Ernst firm files are located at the Harry Ransom Center for the Humanities at the University of Texas (‘HRC’).

6 Id.

7 Beach printed the contract in Beach 203.

8 Documents 98–100.

9 Id.

10 Id.

11 Documents 142–4.

12 Documents 98–100.

13 Keri Walsh, ed., The Letters of Sylvia Beach (New York: Columbia University Press, 2010) 136.

14 Documents 100.

15 HRC.

16 Documents 101.

17 Beach 204–5; Fitch 322–3. See also Joyce letter of 17 December 1931 to Harriet Shaw Weaver, in Richard Ellmann, ed., Selected Letters of James Joyce (New York: Viking, 1975) (‘Selected Letters’) 358–9. Spoo provides the context in detail at 193–232. Colum, a prolific Irish novelist, poet and dramatist, who had known Joyce since their days using the National Library in Dublin, was one of his closest friends in Paris.

18 Id.

19 Documents 108.

20 19 U.S.C. §1305. Reference in the Ulysses decisions to the terms ‘libel’ and ‘libellant’ arises from the fact that, by analogy to the name of the initial pleading in a proceeding in admiralty to seize a vessel, the proceeding to confiscate an obscene book seized by the customs authorities was called a ‘libel’. Potter erroneously refers to the Ulysses case as ‘a libel trial’. Obscene Modernism at 133.

21 Bennett Cerf, At Random (New York: Random House, 1977) (‘Cerf’) 92–3.

22 Forrest Davis, ‘Judge Woolsey etc.’, New York World Telegram (13 December 1933); Obituary, ‘John M. Woolsey, Retired Jurist, 68’, New York Times (5 May 1945) 15.

23 John M. Woolsey, Jr, ‘Judge John M. Woolsey’, James Joyce Quarterly, Vol. 37, No. 3/4 (Spring/Summer 2000) 363–70.

24 Ernst to Alexander Lindey office memorandum, 12 August 1932 (Documents 158).

25 United States v. One Obscene Book Entitled ‘Married Love’, 48 F.2d 821 (S.D.N.Y. 1931).

26 United States v. Dennett, 39 F.2d 564 (2d Cir. 1930).

27 United States v. One Book Entitled ‘Contraception,’ by Marie C. Stopes, 51 F.2d 525 (S.D.N.Y. 1931).

28 Morris Ernst, Preface in Marie Stopes, Enduring Passion (Garden City: Blue Ribbon Books, 1931) xix–xx. Spoo draws attention to Ernst’s preface in an unpublished paper generously provided to the author.

29 See, e.g., Michael Groden, Ulysses in Progress (Princeton: Princeton University Press, 1977) 77.

30 See Ch. 3, n. 2.

31 Ulysses 359.

32 Ellmann 519–30.

33 Fitch 94; Beach 57–8.

34 Letter of 16 August 1921 from Joyce to Frank Bugden (Selected Letters 285).

35 Ulysses 723–68.

36 The United States Attorney cited these passages in seeking permission from the Department of Justice to appeal the trial court’s determination that Ulysses was not obscene. Martin Conboy, Letter to the Attorney General, 5 March 1934, File 97–51–7, Record Group 60, Department of Justice Files, National Archives, Washington, DC (quoted by Vanderham).

37 The compendium appears in Documents 227ss.

38 Id. at 433.

39 Id. at 235 et seq.

40 Letter of 14 September 1933 from Alexander Lindey to Bennett Cerf. Documents 230.

41 Documents 241.

42 Id. at 257.

43 Id. at 258.

44 Id. at 260.

45 Id. at 266.

46 See Ch. 2, n. 20.

47 Halsey v. New York Society for the Suppression of Vice, 234 N.Y. 1 (1922). See Ch. 4.

48 Documents 255.

49 Id. at 266.

50 Id. at 267.

51 Censor 235.

52 Documents 267, quoting Thomas Babington Macaulay, Essay On Milton, 1825, reprinted in Herbert Augustine Smith, ed., Macaulay’s Essays on Addison and Milton (Boston: Athenaeum Press, 1902) 60.

53 Documents 267.

54 United States v. One Book Called “Ulysses”, 5 F. Supp.182, 183–4 (S.D.N.Y. 1933).

55 Augustine Martin, ‘Sin and Secrecy in Joyce’s Fiction’ in S. Bushrui and B. Benstock, eds, James Joyce: An International Perspective (Gerrard’s Cross: Colin Smythe, 1982) 143, 155.

56 Ulysses 762.

57 Letter of 3 April 1935 from Ernst to Woolsey, and Woolsey’s 4 April response, HRC, Ernst Papers, Box 36.3; and Jack Alexander, draft profile entitled ‘Federal Judge’ 15 (courtesy John M. Woolsey III). Birmingham, at 328, connects Judge Woolsey’s letter to the draft profile.

58 Documents 317. Birmingham’s diligent research has clarified Merrill’s identity based on unpublished notes of John Woolsey, Jr. (Birmingham 327, 399.)

59 Federal Rules of Evidence 702 and 706.

60 The Century Association, List of Members for the Year 1922 (New York: Knickerbocker Press, 1922); Yale University Library, Guide to Henry Seidel Canby Papers.

61 Documents 358.

62 John S. Sumner, quoted in Censor at 22.

63 Jeff Shesol, Supreme Power (New York: W.W. Norton, 2010) 94.

64 Joseph B. Keenan, ‘Memorandum for the Solicitor General’, 6 March 1934, File 07–51–7, Record Group 60, Department of Justice Files, National Archives, Washington, DC.

65 Documents 374 et. seq.

66 Id. at 375.

67 New York Daily News (17 May 1934).

68 New York Herald Tribune (17 May 1934).

69 New York World Telegram (16 May 1934).

70 Id.

71 United States v. One Book Entitled Ulysses By James Joyce, 72 F.2d 705 (2d. Cir.1934).

72 New York Times (16 August 1916); Borkin 28–9.

73 ‘Judge Manton is Convicted of Selling Justice’, New York Times (4 June 1939) 1; Borkin at 80.

74 United States v. Kennerley, 209 Fed. 119, 120–1 (S.D.N.Y. 1913).

75 Learned Hand Papers, Harvard Law School Library, box 194, file 2. The memo is quoted in Gunther 337–8.

76 Gunther 338–9.

77 Gunther interview of Learned Hand, 1957–9, quoted in Gunther 338.

78 Rachel Potter’s Obscene Modernism misidentifies the author of the Second Circuit’s opinion in Dennett as Learned, rather than Augustus Hand, and overstates its import by saying that it effectively overruled Hicklin and Bennett by holding that ‘[r]ather than deciding on whether a portion of a work could be considered obscene, … the work be evaluated as a whole’. (Obscene Modernism 38) That landmark event did not occur until four years later in the Ulysses case.

79 Ezra Pound, ‘Meditatio’, Egoist, No. 3 (1 March 1916) 37–8.

80 The ruling was quoted in Ernst’s brief to the Second Circuit, Documents 401–2. The Collector of Customs’ position is stated in Letter of Assistant Collector to Alexander Lindey, 31 January 1933, Ernst Collection Box 95, HRC.

81 Cerf 92.

82 Birmingham 304.

83 209 Fed. at 121.

84 72 F.2d at 711.

85 Learned Hand likely had Manton’s critique in mind two years later when, writing for the majority in United States v. Levine, 83 F.2d 156, 157 (2d Cir. 1936), he noted that the Hicklin doctrine ‘presupposed that the evil against which the statute is directed so much outweighs all interests of art, letters or science, that they must yield to the mere possibility that some prurient person may get a sensual gratification from reading or seeing what to most people is innocent and may be delightful and enlightening. No civilized community not fanatically puritanical would tolerate such an imposition, and we do not believe that the courts that have declared it, would ever have applied it consistently.’

86 Martin Conboy, Letter to Attorney General Homer S. Cummings, 31 August 1934, File 97–51–7, Record Group 60, Department of Justice Files, National Archives, Washington, DC. Vanderham’s diligent research identified the pertinent documents in the National Archives.

87 Harry S. Ridgely, Memorandum for the Solicitor General, 10 September 1934, File 95–51–7, Record Group 60, Department of Justice Files, National Archives, Washington, DC.

88 John S. Sumner, Letter to Karl A. Crowley, 13 October 1934, File 95–51–7, Record Group 60, Department of Justice Files, National Archives, Washington, DC.

89 John S. Sumner, Letter to Joseph B. Keenan, 24 October 1934, File 95–51–7, Record Group 60, Department of Justice Files, National Archives, Washington, DC.

90 Eric Larrabee, ‘The Cultural Context of Sex Censorship’, 20 Law and Contemporary Problems (Autumn 1955) 672, 675.

91 MNY 455–6, citing Jackson Bryer, ‘Joyce, Ulysses, and the Little Review’, The South Atlantic Quarterly, 66 (Spring 1967) (‘Bryer’) 148.

92 Documents 240–2.

93 Bryer at 163.

94 Id.

95 American Academy of Arts and Sciences, The Heart of the Matter (Cambridge: American Academy of Arts and Sciences, 2013) 9, 32.

96 Posner 502.

97 Learned Hand, ‘Sources of Tolerance’ in Hand, The Spirit of Liberty: Papers and Addresses of Learned Hand (New York: Knopf, 1952) 81.

98 16 October 1920 Letter (see Ch. 2, n. 52) at 4, 6.

99 Id. at 6.

100 Georgetown University Law Center, The First 125 Years: An Illustrated History of the Georgetown University Law Center (Washington: Georgetown University Law Center, 1995) 19–20.

101 Paul Carrington, Stewards of Democracy (Boulder: Westview Press, 1999) 206.

102 James A. Wooten, ‘Law School Rights: The Establishment of New York Law School, 1891–1897’, N.Y.L. SCH. L. REV. 36 (1991) 337 (‘Wooten’); ‘Must the Law School Go,’ New York Times (4 March 1891) 8.

103 LaPiana 88–9; 92–9.

104 Wooten 347.

105 Nicholas M. Butler, ‘On Permitting Students to Take Studies in Professional School While Pursuing a Regular Undergraduate Course’, 3 Educ. Rev. 54, 56 (1892).

106 Andrew L. Kaufman, Cardozo (Cambridge: Harvard University Press, 1998) (‘Kaufman’) 29–50; and Benjamin Cardozo, ‘Law and Literature’, Yale Review (July 1925), reprinted in Cardozo, Law and Literature (New York: Harcourt Brace, 1931).

107 Benjamin Cardozo, ‘Modern Trends in Law’, Andrew L. Kaufman Papers, Harvard Law School, quoted in Kaufman 49–50.

108 Quinqennial Catalogue 61, 111.

109 Document 239.