Was it not after all a small point of historical truth that mattered really very little to … specialists and nothing, but absolutely nothing at all, to anyone else?
Angus Wilson, Anglo-Saxon Attitudes (1956)
FOR A BUILDING ALMOST A CENTURY OLD, Osgoode Hall, standing firm in its practical brick and stately grey stone, continued to impress in 1930. Anchored by a central classical portico with six majestic Greek columns, it sat on the corner of Queen Street and University Avenue as if placed there to separate the din of the business district from the comparative tranquillity of the university and legislative precincts to the north at Queen’s Park. For ninety-eight years it had been the seat of law and justice for the province. In it was housed the headquarters of the Law Society of Upper Canada, facilities for its benchers, and the courtrooms where the drama of the system of justice played itself out.1 At times, visitors to the city mistook Osgoode Hall for the legislative buildings. Perhaps they were impressed by the entrance from University Avenue, or the expansive grounds, or the iron fence that surrounded the building. Clearly, they failed to notice its distinctive, century-old, iron cow-gates, constructed so that people could leave but farm animals could not gain entry.
The original structure of 1832 had gained two additional wings and a labyrinth of corridors and offices. Coloured tile floors and an Ionic motif marked the interior. Florence had visited it two years earlier, when the manuscript of The Outline of History had been sent to Toronto to be examined. She and Mabel had taken some time to explore its public spaces, but many doors remained closed to women. She had not seen the lawyers’ common room or the lecturers’ offices. The Convocation Hall on the second floor was also for men only, preserved for the exclusive use of the benchers.
The Great Library, also on the second floor, had fortunately been open to all, and Florence and Mabel had spent some time in it. The vaulted room, its ceiling supported by a number of Greek columns, contained some 70,000 legal volumes from throughout the Empire, along with the 6,000 books of the Riddell Canadian Library. At one end of the spacious room was a memorial to those who had fallen in the Great War; at the other, a huge fireplace above which hung George Theodore Berthon’s portrait of Sir John Beverley Robinson, first chief justice of the province. Roses, thistles, and shamrocks completed the thoroughly loyal decorative motif.2
By comparison with the Great Library, the courtroom in Osgoode Hall that Florence and Mabel entered on Friday, May 30, 1930, was unpretentious. The temperature inside was warm, almost uncomfortably so, and little fresh air seemed to circulate. Scarcely a seat was vacant. Florence did not know who most of these people were, but from where she sat she could recognize several leading members of the academic and publishing communities. Young men, perhaps law students, whispered among themselves near the back. Reporters also sat there, steno pads in laps. Near them, with a look of bemused detachment, a portly middle-aged man with a carefully trimmed silver beard waited patiently for the proceedings to begin. It was Hector Charlesworth, who so long ago had written the book review that had resulted in this day in court.
Counsel sat in their designated places before the bench, waiting for the judge to arrive. Collectively, they were among the finest lawyers the provincial bar had to offer. The Toronto firm of Elliott, Hume, McKague & Anger was one of the city’s most prestigious. W.J. Elliott, K.C., and E.V. McKague, representing Mr. Wells and the publishing firms of Newnes and Cassell, respectively, occupied one table. At another sat members of the equally reputable firm of McLaughlin, Johnston, Moorhead & Macaulay, acting on behalf of Wells’s North American publishers.
At the table sat Robert Dunn Moorhead, K.C., representing the New York branch of the Macmillan company; next to him, Macmillan of Canada’s lawyer, W.W. McLaughlin. With only ten years in practice, McLaughlin, son of a barrister, was the least experienced lawyer in court that day. But he was a member of Macmillan of Canada’s board of directors as well as its official counsel, and his relationship with Hugh Eayrs had become very close. William McLaughlin may have lacked court experience, but he was thoroughly familiar with the goings-on at 70 Bond Street since the days of Frank Wise. Apart from Florence Deeks and Hugh Eayrs, no one in court knew more about the accusations against Wells, and the transatlantic reverberations they had caused, than he.3
Behind the table of the plaintiff sat P.E.F. Smily of Johnston, Grant, Dods & Macdonald, looking very much alone. Forty years old, the son of a registrar of deeds from Windsor, a veteran of fifteen years’ practice, Percy Smily turned around every once in a while as though to have a few words with his client. But the seat next to Smily, reserved for the lead counsel for the plaintiff, was vacant.
All stood to attention as the clerk of the Supreme Court of Ontario announced the entrance of the judge, the Honourable William Edgar Raney. The seventy-one-year-old judge brought a very different background to the courtroom than did the representatives of the legal profession who stood before him. Called to the Ontario bar in 1891, within a decade Raney had opted for a career in politics and had served as attorney general in the “farmers’ government” of E.C. Drury after the provincial election of 1919. After the defeat of the government in the next election, Raney remained in the legislature as a leader until an offer he could scarcely refuse came from the office of the prime minister in Ottawa. As a result, on September 16, 1927, William E. Raney had donned his robe for the first time as a judge in the Supreme Court of Ontario, High Court Division.4
The trial of Deeks v. Wells et al., so long in the preparation and so often delayed, began at last. It was to be tried not by jury but by judge alone. Smily rose at once. His first words were to ask Mr. Justice Raney for a postponement until the following week. R.S. Robertson, K.C., lead counsel for Miss Deeks, had been delayed by a trial in Niagara and could not be present. Over the strong objections of the defence, Raney consented to begin testimony the following Monday and drew the proceedings to an abrupt close. For those not familiar with the slow if inexorable pace of justice, it was an instructive lesson: long anticipation followed by a distinct sense of anticlimax.
The trial started in earnest at eleven on Monday morning, June 2. Having rushed back from Niagara, Robert Spelman Robertson of Fasken, Robertson, Aitchison, Pickup & Calvin was now in his seat beside Percy Smily, at the front of a full courtroom. Born in the western Ontario town of Goderich in 1870, the tall, bald Robertson was a barrister of long and distinguished experience, called to the provincial bar in 1894 and appointed King’s Counsel in 1921. The year 1930 saw his election as a bencher, and word in the legal community had it that an appointment to the bench lay in his future.
“Before we go on with the exhibits,” he began, “I should like to say perhaps a little more than one generally does, because of the nature of the case, what we claim and how we expect to go about proving it.” After explaining to Mr. Justice Raney why the English branch of Macmillan was no longer a party to the case, Robertson stated the basis on which it was brought. Raney intervened when he thought it necessary.
The action as brought is frankly different from the ordinary infringement of copyright. The Plaintiff’s work is an unpublished manuscript.
But copyrighted?
She copyrighted the name before the completion of the manuscript.
Now, what she says is this, that the manuscript having been deposited by her in a manner that will be stated to your Lordship with the Canadian Macmillan Company, that it remained in their hands, she gave it to them along about July or August of 1918. The completed manuscript … remained in their hands until the following spring, 1919.
That in the meantime, some two or three months after she left the manuscript with them we have the first … intimation of Wells beginning to develop an idea of writing a History of Mankind, and that his work was published first by Newnes in England in parts, that is in serial parts, that was beginning in the Fall of 1919. Afterwards Cassels [sic] published it in England as a book.
The Macmillan Company, the Incorporated company published it in the United States and in Canada, and the Macmillan Company of Canada, possibly, … are involved in the use of the manuscript.
What do you say about the Canadian Company representing –
The Canadian Company, the Macmillan Company of Canada possibly sold copies in Canada. I think we can establish that.
Copies of the Wells’ book?
Anyway, they are involved in the whole story because it was to them that Miss Deeks entrusted her manuscript, and if wrong use was made of it, they are the ones who must be accountable, because it was to them she gave it. We say our manuscript having been entrusted to Macmillan for a particular purpose was used through them, and by the defendant Wells, and unfairly used by him in the preparation of his book. That, of course, is not exactly infringement of copyright. It is not the sort of action one brings under the Act, but it is a well known form of action. It is rather an equitable relief the Law gives to one that is the author of a book.
The manuscript was not copyrighted?
No, it is not under the Copyright Act we are suing, it is under another branch of Copyright Law, it is a well recognized right by an author of a manuscript to the property in it, and if anybody improperly, and without the permission of the author, takes that manuscript and uses it unfairly, various expressions are used by the Court in describing what is unfair use.
It would be a breach of faith by Macmillan.
In the first place, and a wrong thing to do on the part of Mr. Wells if he did so use it. That is the character of the action we bring.
Then as to the way we go about proving it. I say we will show that this Deeks’ manuscript was prepared before Mr. Wells had written a line, and it was taken to Macmillan and in their hands there in Toronto prior to Wells even starting to write … Then, I do not know that we will be able to get your Lordship a witness who will say that Macmillans did send from Toronto to England this manuscript. We rather seek to make the connection between our manuscript and Mr. Wells altogether in another direction, that is, we say by expression of the work, he must have had it before him. We say this, first of all, your Lordship will appreciate, if a man is going to write a History of the World, there are a great many ways in which he might set about writing it. He might write it from various points of view, there are innumerable instances in the history of mankind that he might put in or leave out, depending somewhat upon their significance to the view point he was adopting. Now, we will say, first of all, and hope to prove this by evidence, that the plan of the two works is very similar indeed, the resemblance in the general plan; the things that are discussed, the things that are omitted, are such that it is beyond credence that it could be a mere result of coincidence. Then we go further than that, and we say that there are many resemblances, verbal resemblances, resemblances in expressions that are used, but I do not carry it thus far. We do not say that Wells was drawing from the events that he discusses necessarily the same lessons that Miss Deeks would. Wells was a man who has ideas.
His philosophy was different.
Wells is a man who has well-known ideas along lines of that kind, and his own ideas constantly appear beyond peradventure.
Another thing that is quite striking is that Miss Deeks, I think, puts forward women and the place of women in history and her importance. Mr. Wells apparently has quite contrary opinions about that sort of thing, and rather puts man in the front at different times.
And puts man in the leading position.
And puts the woman in her place – your Lordship will bear in mind, when we are making comparisons in that way in detail, we are not contending at all that Wells did not do any work of his own, that he sat down and slashingly copied Miss Deeks’ book, but we say further the use he did make of it amounted to an unfair use. I think I am fair in saying this, that if the resemblances are such as to lead your Lordship to the conclusion that Wells must have had her manuscript before him, I think there will be very little difficulty in reaching the second conclusion that he did not use it properly, because he has denied having it at all, and if he did have it, and denies it, it would not be unreasonable to reach the conclusion he denied it for a purpose.5
Robertson went on, briefly, to note that there existed curious omissions and errors common to both works, and that he would show that it would have been “humanly impossible” for any man to have written The Outline of History within the limited span of time he had “unless he did follow as is complained and from time to time make use of some such work as the manuscript of Miss Deeks.” Accordingly, he proposed to call expert witnesses who would testify as to the similarities and differences between the two works.
W.J. Elliott rose to put the case for the defence. He was brief and to the point: “Perhaps your Lordship will permit me, just so that your Lordship will understand what the defence is, as well as what my friend says – we say that this Plaintiff’s manuscript which is unpublished, never left the City of Toronto, that it never crossed to the Macmillan Company at London, that it was never seen by Macmillan or by Mr. Wells, or by any of the people who assisted him in writing the ‘Outlines [sic] of History.’ ”6
With the statements of the plaintiff and the defence now made, Robertson called his first witness, Florence Amelia Deeks. He helped her as gently as he could into the details of her testimony, and one of his first acts was to have “The Web” entered as Exhibit 1. Then he proceeded to elicit from her the origins of her manuscript.
Now, when did you set about the preparation of this manuscript?
I think it was in 1914, but it might have been in 1913.
Yes, and will you tell us briefly how you proceeded with the work, for example, speaking broadly, what is the nature of the work?
I first undertook to feature feminism in history.
HIS LORDSHIP: To feature feminism?
Yes, the woman and her work in history. In order to do that, I did not know how to work it, and I thought I would have to go back to Europe, then to Asia, then I said I will go to the beginning.
MR. ROBERTSON: Well?
So I went to the beginning and I gathered notes, with different notes from different things and different sections, many and many notes, and I wrote them and re-wrote them –
Wait a moment, for the purpose of doing that, or writing or drafting notes, what did you do–…where did you go to get your data or information?
I gathered different books from the Library.7
Robertson soon entered as exhibits a list of her historical sources, and the 1916 registration with the registrar of the Department of Agriculture of interim copyright “for the Literary work entitled, ‘The Web,’ ” its author identified only by the pen-name “Adul Weaver.” Over the course of the afternoon, he drew out from Florence the basic circumstances of her quarrel with Wells: her submission of “The Web” to John Saul, together with her correspondence with him; her attempts to recover it; the harsh letter of rejection from Montrose Liston, Saul’s successor; her insistence that she had not regained possession of “The Web” until early April 1919.8
She continued with a description of her shock at reading Hector Charlesworth’s review of The Outline of History in Saturday Night magazine in December 1920, the revisions she undertook in order to make another version of “The Web” publishable, and the “Comparison” she made (entered as Exhibit 6) of the plans and details of “The Web” and The Outline. Sorting out the different copies and revisions of “The Web,” and explaining the peculiar three-column structure of her comparison, took no little time. A good deal might have been added about the intrinsic evidence, but Robertson knew from his client’s testimony on discovery that she was not the best advocate of her own case. She was too nervous, her few words too guarded – as if she were the defendant. She had spent so long working on her comparison and poring over its details that she had a difficult time sorting them out. This aspect of the case would be better presented by her expert witnesses.
W.J. Elliott then began his cross-examination, on the direct evidence concerning “The Web” and its relation to The Outline of History. His object, in part, was to introduce the idea that Miss Deeks began to revise “The Web” so that it would resemble The Outline, and for nefarious purposes. But first, he decided to make fun of the singular way she had initially expressed her interest in Wells’s book.
And then, having seen the review in “The Saturday Night,” you went to the T. Eaton Company and purchased the book, did you?
I think it was in December.
December, 1920?
Yes.
And what did you do with the book, did you read it?
I read it rapidly through.
Yes, and then where is it? That book?
I returned it.
You took it back to Eaton’s? Yes.
HIS LORDSHIP: Sold it back to them?
I returned it, and the money was refunded.
MR. ELLIOTT: Your money was refunded, you were not apparently very much interested in it when you did not keep it, returned it and got back?
I was very much interested, but it suited my convenience.
It suited your convenience, so … you, Miss Deeks, in 1920 saw this Review, and you were interested in it, and went to Eatons and got a copy of the book and went through it hurriedly and took it back and got your money back?
Yes.
And apparently then, it did not strike you as being very similar to your “Web”?
It did strike me as being very similar.9
Then Elliott turned to the serious business of her revisions, first of 1920 and then of 1923 and later, noting as he did so that she took no legal action until five years had elapsed and the revisions were complete. Elliott well knew, from what the defence had discovered of the involvement of W.P.M. Kennedy, that these “revisions” had nothing directly to do with “The Web” as a discreet work, but that they concerned a completely different work. But he had introduced doubt and confusion over whether “The Web” had remained unrevised after Florence had seen The Outline. The implication was clear: she had used Wells’s book to improve her own.10
Elliott drew attention to John Saul’s letter of January 31, 1919. His object was to demonstrate that “The Web” remained in the possession of Macmillan of Canada all during the time Wells researched and wrote his book.
Tell me this, when you got that letter with the manuscript apparently there, did you go down and ask for it?
No.
You did not believe it was there, you think that the man who wrote that letter was misleading you, and that it was not there?
The letter stated, “I am cleaning up everything before leaving,” so I expected if he were cleaning up everything, he would return my manuscript, and when it was not returned, I just thought it was the business way of doing things. They had had the manuscript for over six months. If it had been there when he cleaned up everything I would naturally have expected he would have returned it …
And did you not go down to speak to him?
No.
And you did not do anything further about it until the following March? On March, March the 25th, 1919?
As far as I know, I wrote them a letter …
A letter of reply dated March 27, 1919, had been written by Montrose Liston.
He comes into the picture the first time–…he does not say I have a letter, he starts off, “I have glanced through the pages of your manuscript, and wish to say quite frankly how it affects me, in reference to your idea” –
HIS LORDSHIP: As though this had been a matter which had been inherited by him from the former Editor.
MR. ELLIOTT: He apparently was going through the manuscripts there, came across this manuscript there, knew it was from Miss Deeks and wrote her about it.
Now, are you sure that that letter refers to your manuscript “The Web”?
It was the only manuscript they had of mine.
Didn’t they have a manuscript there of yours called “The Dawn”?
No. He suggested in his letter that I write on “Love and War,” and I wrote a heavy pamphlet on “Love and War” and submitted it to them.11
As if matters were not confusing enough with Florence claiming that “The Web” had remained in its pristine condition while the defence suggested that in fact she had revised it not only once, but twice, after reading The Outline, Raney now had two more Deeks manuscripts to sort out. “Love and War” had been just what she said it was: a pamphlet-length piece she had written after Liston had suggested that the general argument of “The Web” should be reduced to essay length. Elliott no doubt also knew this, but he chose to sow a little more confusion.
You called it “The Dawn”?
No.
Did you have a manuscript called “Dawn”?
“Dawn” is the subject of my first chapter.
You mean it had two names?
No, the opening of the first chapter.
HIS LORDSHIP: The opening of the book is “The Dawn.”
MR. ELLIOTT: Then, on March 27th, you got the letter from Mr.
Liston, and you went down and got your manuscript?
The week following.
I have it, I think you told us, on April 3rd, 1919?
About that time.
And who did you see when you went down?
Mr. Liston.
Meeting him for the first time?
Yes sir.
And he sent a young lady to the place where they kept manuscripts and got it out for you, and you took it away?
Yes.
And did you think to ask them anything about where the manuscript had been all this time?
I did not.
You had no doubt then it had left their office?
I thought it had been in England all the time.
How?
I expected they would send it to England when I –
Why did you expect that?
Because Mr. Saul said the English House would have to give their consent to the quotation from the Green’s “History.”
They would not have had to send it to England to do that?
I thought they would.
Elliott returned to “The Web” and its whereabouts during the crucial six months of late 1918 and early 1919.
Then, coming back to it, when did you say that it went to England–…can you give us any idea when it went to England, according to your idea –
I do not know the date.
You do not know when it went, or when it came back?
I cannot give you the date.
Can you not say positively, one way or the other, whether you know it went or not?
I know it went.
HIS LORDSHIP: You do not know from any direct information, as I understand you?
Yes.
MR. ELLIOTT: It is an inference you draw from the facts, is that right?
Yes.
Raney had heard enough, and adjourned the proceedings for one hour and lunch. Elliott had done his task well. He had peppered the plaintiff’s testimony with a mixture of manuscripts and revisions, sown confusion as to the whereabouts and state of “The Web,” and demonstrated that Florence Deeks had no direct evidence that her book had ever made its way to England.12
When court resumed at two o’clock, Elliott shifted to the matter of intrinsic evidence. His task now was to make a mockery of Florence’s claim that a comparison of the two works demonstrated Wells’s use of “The Web.” His chosen weapon was ridicule.
He knew that she would attempt to demonstrate her claims by pointing out similarities, so he drew attention to the fact that, to Miss Deeks, Mr. Wells would be damned even when he had presented views the opposite of those in “The Web.” The lawyer pointed to the fact that The Outline of History was far lengthier than “The Web,” and that Wells had used far more authorities. Moreover, Elliott added, many of Wells’s authorities were those to which she also had had access and used. Was it so surprising that the two works should, in some ways, resemble each other?13
Elliott decided it was time to show how preposterous the claim was that “The Web” and The Outline were alike in any fundamental way. He would have some fun and play his trump card.
Now, Miss Deeks, the theory of your book, the “Web,” is the theme, dealing with women in history?
That is one feature.
That is the main theme running all through?
One of the main things.
And when you wrote the “Web,” started out to write it, your idea was to place in prominence the position of women in the affairs of the World?
Yes.
HIS LORDSHIP: Did you ever abandon that theme? I think Mr. Saul suggested that you should abandon it, didn’t he?
In my last revision I made it very much less prominent …
MR. ELLIOTT: … In chapter two, you deal there with the influence of women in the world?
Yes.
You discuss specially the love of the beautiful?
I think it comes in prominently.
And you discuss women as the architects and builders?
Yes …
Medical science, they instituted medical science?
Yes.
And the institution of poetry was also with the women?
Yes.
That they were responsible for the clothes worn by the race?
“And still are,” Robertson added. Even he was caught up in the spirit of Elliott’s questioning.
And that they were supreme in Government in those days?
I did.14
Elliott knew exactly what he was doing, and why. The more he drew Miss Deeks out about her views on the contributions of women to history, the more preposterous they would seem to this assembly of intelligent men – and, although he did not yet state it, the more different her interpretation would appear to be from that of Mr. Wells. So he continued to stretch the credulity of the learned judge and the courtroom audience. In rapid succession, he drew out from Miss Deeks the role she gave women in parenthood and in Greek civic culture, and showed how at every point she contrasted women’s pacific virtues with men’s aggressive instincts.
HIS LORDSHIP: Mr. Elliott, what is the purpose of giving particularly all these features in this way, and getting the witness’s assent to all these now?
MR. ELLIOTT: I just want to show through all these things that the whole work is dealing with women … In doing this I was going to ask her if there was any similar dealing with these matters in Mr. Wells’ book?15
With that, Elliott turned once again to the witness.
So, Miss Deeks, after going through these various chapters, the theme all through your book at this time was women and their position in the world?
Was one of the themes, the position of woman and specially her position in democracy, and the position of man in general, and the leaders in particular.
… And your object in writing this book was to bring before your readers the best of women in ancient and modern times?
History in general has never had woman’s position incorporated in it as a whole, and I endeavoured to do it as a whole, and her position seemed to fit in with democracy.
Yes?
And democracy seemed to be opposed to militarism.
And just as you put it, that was to set these things out you wrote that book?
I set these things out when I wrote the book.
HIS LORDSHIP: In other words, she had a motive besides the motive of writing history.
MR. ELLIOTT: Yes. Then, you do not suggest, Miss Deeks, that
Mr. Wells’ book deals with any such proposition?
Mr. Wells’ book omits women of course, altogether. He instances a few cases, a few names.
As you put woman forward, he does not seem to deal with her at all?
In another way he does deal, it is in an uncomplimentary way, whereas I have overstressed the point … Mr. Wells apparently overstresses it in the other way.
So you are at opposite ends of the pole as regards that?
Yes.16
W.J. Elliott had made his point. Far from conforming to Miss Deeks’s thematic “plan,” Wells had written his book from an entirely different point of view. How could he possibly be accused of plagiarism? This, too, diminished her credibility in the eyes of Raney and the other men in the courtroom.
He now turned to the matter of correspondences and parallels. If Raney found matters confusing thus far, he had heard nothing yet. Elliott’s questions concerned the significance of Florence’s “Comparison.”
Miss Deeks, I see you took a great deal of pains in preparing this –
HIS LORDSHIP: She must have put in an enormous amount of work. The work in preparing the manuscript and then in comparing it with this book …
MR. ELLIOTT: First, tell me this–…do you claim that Mr. Wells copied your ideas?
Oh, no – I am claiming that he copied my work as it stood in
“The Web” –
Did you claim that he copied your language?
Very often.
And do you claim that the ideas that you displayed in your book were copied by Mr. Wells in his book?
Sometimes the conclusions that I drew, he drew, and the result I make, he makes.17
Elliott had made it appear that the witness contradicted herself. Having earlier indicated that “The Web” and The Outline were far apart in their consideration of women, she had now been made to suggest that he had sometimes copied her ideas.
In Florence’s mind, no such confusion existed, but to sort the matter out would require much time and great attention to detail. Elliott took full advantage of the fact that no one except those who had seriously studied the two works could easily understand what she meant. He turned her attention to the treatment of Greek history in the two works.
Let us just look at it. Where does he take and copy your story? … Let us deal with at page 21–…now you give us this case as an outstanding one?
It is one of the outstanding ones.
Now, let us look at it–…you say that VI (2) on the left hand appear in your copy[;] in “Outline” it is XXII (304) on the right?
That was it. I say that these two sections there –
You have to use what numbers of the section?
I say section VI (2) and VI (3) contains the statements of facts which are contained in Wells XXII (304).18
Such details of identification were taxing in the extreme. Elliott, Deeks, and Raney had a copy of her list of comparisons in front of them as they attempted to identify corresponding passages in “The Web” and The Outline, but the sheer difficulty of locating them took attention away from the significance of the passages themselves. Having expended mental energy enough in simply finding them, Raney may well have thought that the litany of historical detail hardly merited the effort.
As one of her examples of parallel passages, Florence drew attention to the discussions of Columbus.
HIS LORDSHIP: I suppose this story has been told ten thousand times …
MR. ELLIOTT: You told us to come to page 46–…what do you see there?
We both speak of “beautiful weather” …
That is your part there starting, “Early on a beautiful Friday morning”?
The fact we both call the weather beautiful …
And what is the passage of Mr. Wells?
It says, “Early on a beautiful Friday morning,” so and so, “the little expedition set sail.” He says, “The little expedition went south to the Canaries and then set out across the unknown seas in beautiful weather with a helpful wind” – we both used the words, “Little Expedition,” and the term “beautiful” …
In discussion of Columbus sailing, we agree that it was a small expedition, there were only three ships in it?
Yes, there were three ships.
You cannot complain because he says it was a little expedition?
I do complain of it.19
Florence was trying to explain that the key to proving that Wells had her work at hand rested in the pattern of the similar use of language, not in the individual instances; but each time she tried to point this out, Elliott deflected attention from language to the fact that each author was describing the same events. In what ways would they not use similar language to describe them? She and Robertson, as well as the experts they had consulted, knew that each instance of common language appeared insignificant in itself. The impact of the evidence was, instead, cumulative – in the gradual accretion of hundreds of such examples. She found it difficult to make her case when each instance was considered in isolation from the others.
Elliott asked her to provide another example. She decided to use the voyage of Vasco de Gama, and quoted from “The Web.”
“Also in 1498 the Portuguese under Vasco de Gama sailed around the African Continent and reached Calicut on the Malabar Coast.” Wells says, “In 1497 Vasco de Gama sailed from Lisbon to Zanzibar and then with an arab pilot he struck across the Indian Ocean to Calicut in India” – but in his first note –
HIS LORDSHIP: What does he say?
In his first note, I have here, Vasco de Gama sailed around the African Continent,” and his next note, he has “In 1498 Vasco de Gama sailed from Lisbon – ”20
To Florence, this was a key passage. As she attempted to explain to the court, in “The Web” she had taken a sentence from Duruy stating that de Gama sailed from Lisbon and landed in India in 1498. But in her attempt to paraphrase, she had taken the date and placed it at the beginning of her own sentence – which then lent the erroneous impression that de Gama had set sail in 1498. In her view, Wells, who at no point acknowledged Duruy as one of his many sources, had initially made the same mistake in the date. He had managed to find and correct the error in the text of the published version of The Outline, but he had neglected to correct the dates provided in his footnotes.
Florence provided further examples of the way passages from her work dependent on Duruy had also mysteriously found their way into Wells’s work. Elliott’s rebuttal was simple: she got facts from Duruy; Duruy got them from some source of his own – and so did Mr. Wells. The plaintiff, he suggested, was not talking of correspondences at all, but of the historical record that was the common possession of any serious student of the past.
R.D. Moorhead, on behalf of Macmillan of New York, cross-examined Florence briefly after Elliott had finished. His main concern was to suggest that Macmillan of Canada had returned “The Web” to its author in early February 1919, and not in April as the plaintiff claimed. Later in the trial, when examining John Saul’s secretary Mabel Hopkins, Moorhead would establish that this was the date given in the Macmillan of Canada logbook for the return of “The Web.”21 But, like Elliott before him, he also had to address the matter of Miss Deeks’s mysterious manuscript “The Dawn.” He drew attention to the fact that the Macmillan of Canada logbook of manuscripts had an entry for a manuscript called “The Dawn,” dated as received on March 26, 1919, as then placed in the vault, and as having been returned on July 15, 1919. “The Dawn,” he suggested, must have been a revision of the first version of “The Web.”
Florence strenuously denied the assertion. She stated that the manuscript that had been returned to her on July 15, 1919, had been not “The Dawn” but the pamphlet Liston had asked her to write, “Love and War.” But she had an answer about the mystery of “The Dawn.”22
Towards the end of the trial, Robertson recalled Florence to the witness stand for a final time with one purpose in mind: to eliminate the confusion over “The Dawn” and its relation to “The Web,” and to emphasize the importance of the entry concerning it in the Macmillan of Canada logbook of manuscripts. Under his questioning, Florence once again insisted that “The Web” had been returned to her not in early February, as the defence claimed, but in early April. He drew attention to the entry for “The Dawn” in the logbook for the date March 26, 1919. She insisted that she had submitted no manuscript at that time. Moreover, no such manuscript called “The Dawn” existed. Did she subsequently submit a manuscript to Macmillan? Yes, but it had been the pamphlet “Love and War,” solicited by Montrose Liston in his letter rejecting “The Web.” She had not delivered it to Macmillan until June. The pamphlet “Love and War,” thrown into court by the defence, simply masked a significant point: that Liston’s letter rejecting “The Web” was written the day after “The Dawn” had been received by Macmillan as an apparently new manuscript from Miss Deeks.23
To Florence Deeks and to R.S. Robertson, only one rational conclusion could be drawn concerning the receipt of a manuscript that did not exist. On March 26, “The Web” returned to Macmillan of Canada from England, where it had been for several months.
Florence was certain she knew what had happened. A clerk only recently employed by Macmillan, and therefore unaware of the existence of “The Web,” had hastily examined it, thinking it to be a new submission. The author was identified only by a pseudonym. This would make entry of the submission into the Macmillan manuscript logbook difficult, so, uncertain what to do, the clerk had taken her problem to the new editor, Mr. Liston. He seemed to know a little about the manuscript, and after he had told her the author’s name she left the manuscript with him. Then she returned to the outer office to make the entry in the logbook so that the manuscript would be recorded as having been duly received.
In doing so, however, the clerk had made two mental errors. First, she got Miss Deeks’s initials wrong, writing them down as “F.F.” Then, still relying on her memory, she put “The Dawn” rather than “The Web” down as the title of the work. The phrase “The Dawn” had been prominently displayed on the first page of the manuscript: it was the title of Chapter One of “The Web.”
Montrose Liston had immediately sharpened his critical tools and put them to good use on the manuscript in front of him. Unlike the clerk, he knew that this was not a new submission, and he had not mistaken the chapter title for that of the book, so when he checked for the title “The Web” in the manuscript logbook, he found the author’s Toronto address easily enough. The next day, he sent his harsh letter of rejection to Miss Florence A. Deeks.
That, at least, was how the author conceived that the situation had unfolded back in 1919.
Apart from a brief cross-examination by Moorhead, Florence’s day in court had ended. Although Moorhead introduced the manuscript “Love and War” once again, Raney was clearly intrigued by the implications of Robertson’s clarification of the mysterious existence and fate of “The Dawn.” “It would almost seem,” he said, “as if these entries in the book and this letter, were all designed to lend mystery to these transactions.”24
Florence left the witness box and took a seat next to her lawyer. It was time for her first expert witness to be called. After the death of Sir Bertram Windle, she had needed to find someone to take his place. Fortunately, towards the end of 1929 she had found a scholar who proved willing to consider her request. Like Sir Bertram, he had been reluctant at first; but by the time he had completed his own comparison of “The Web” and The Outline of History, his initial hesitancy had evaporated. In fact, he seemed positively enthusiastic.
Professor William Andrew Irwin of the University of Toronto settled into the witness stand in the middle of Monday afternoon. Prompted by R.S. Robertson, he began to describe his credentials as an expert witness for the plaintiff. He had been a student of Oriental languages at the University of Toronto between 1908 and 1912, graduating with honours. After spending a year or two on the Canadian prairies, he had returned to Toronto for two years of graduate work towards a master’s degree. Then he left the country to study further at the University of Chicago. At present, he held the rank of associate professor at University College in the University of Toronto, but he had just accepted a position as full professor at Chicago.25
What Irwin could have stated, but did not, was that he had been a University of Toronto gold medallist in 1912, that he had studied for the Methodist ministry at Victoria College (his time in the Canadian west had been his period of ministerial probation), and that he had been ordained in the Methodist Church of Canada in 1919. In the same year, he married the daughter of Professor J.F. McLaughlin, Victoria’s head of the Old Testament department (and later dean of theology), and took up his new position at University College. Whenever possible, he had returned to Chicago to advance his research.26
Irwin was as unlike Florence Deeks as any witness could be. At the age of forty-six, he was in the prime of his career, immersed in the history of the Near East and a champion of the intellectual battle in the graduate seminar of the research university. He was fearless and opinionated, even brash. From the moment he took the witness stand, R.S. Robertson knew he would not need to draw Irwin out. The professor had firm views on the subject at hand and was eager to give them voice.
After he had confirmed that Irwin had examined “The Web” and The Outline of History over a period of five or six months, Robertson asked his first and most important question: “Now, are you able to say from a comparison of the work and assuming that Miss Deeks’ manuscript was written as now stated in the evidence, and that Mr. Wells’ work was begun not later than the latter part of 1918, are you able to tell his Lordship whether in your opinion the manuscript of Deeks was before or in the hands of the writer of the ‘Outline of History’?”
Irwin did not hesitate: “I would say, your Lordship, the evidence is overwhelming that it was in the hands of the author of ‘Outlines [sic] of History’ before he wrote, and during the time he was writing.”27
Robertson noted that Irwin had prepared a lengthy and elaborate report, from which the witness proposed to read during his testimony. The lawyer had already provided a copy to the defence; now he gave one to Mr. Justice Raney. This was unusual, but with the agreement of the defence, Raney accepted it. He reminded Elliott that the document might provide good grounds for cross-examination. Besides, he added, “we do not want to be all summer trying this case.”28
Irwin began his testimony by emphasizing that he had “sought throughout to weigh the matter judicially,” and not “to make out a case for or against anybody.” Indeed, he said, he had undertaken to ignore Miss Deeks’s charges. He had simply placed the two works side by side, compared them, and drawn his own independent conclusions. He had made an especially close study of those sections of the two works that dwelt on the history of the Near East, his area of expertise.29
It seemed “inherently improbable,” Irwin read from his report, that an author so well known as H.G. Wells would possibly have occasion to rely on the unpublished manuscript of a writer as obscure as Miss Deeks. Wells had among his circle of friends many outstanding minds, and his collaborators constituted “a group of brilliant literary men.” What concerned Irwin, however, was not Mr. Wells’s reputation; “the question rather is whether Mr. Wells of the ‘Outline of History’ has shown himself there a master of literary craft and an expert in historical science so far removed from the level of Miss Deeks’ works that his having borrowed therefrom is a priori absurd.” The answer, he said, “must be an emphatic negative,” for The Outline was “a very shoddy ill-digested piece of work devoid of literary excellence. I cannot recall a single passage that commends itself as the work of an artist.”
W.J. Elliott was on his feet, objecting. This was not the measured testimony of an expert, but the barbed judgment of the academic. But Irwin continued: “As history it is commonplace in the extreme. The work has no merits that would preclude it being dependent upon an unknown writer. Indeed on the contrary, the striking deficiencies and inaccuracies of Mr. Wells’ treatment, taken in connection with his imposing array of scholarly collaborators implies rather cogently that there is something deeply wrong.”30
Elliott could stand no more. “My Lord, this could never go in as evidence in chief from any witness, and it is rather abusive, and I do not think it should go on the record, because there is nothing to substantiate it, and it is a thing that you would not expect from any man who professes to be a Professor of Toronto University.” Irwin’s statements, he said, were nothing less than libel and should not be permitted to become part of the record. R.D. Moorhead, for Macmillan New York, concurred. Elliott remained in shock at the scandalous breach of judicial decorum, but Raney permitted Irwin to continue. “Never mind,” said the judge, “the critics are not very tender of one another.”31
Thus encouraged, Irwin began to justify his harsh views. “With advisers such as those,” he began, “why did he not produce a first class history of the World?” Instead, Wells had produced a slipshod work containing such a range of similarities with “The Web” as to constitute dependence on it. But an even greater clue to the reliance lay in their differences. Irwin elaborated. Both works were of similar scope, had similar plans, and neglected “to the point of omission” the whole phase of human cultural achievement. Both were “sadly out of balance,” and in similar ways. Their treatment of the ancient East was inadequate; they gave disproportionate space to Greece, Macedonia, and Rome, they overlooked “Achaemenia Persia,” and they neglected the Seleucid and Ptolemaic empires, of India and Syria and of Egypt, respectively. Their treatment of Israel and Juda was unsatisfactory but in similar ways; they gave only casual reference to the Ottoman Turks and neglected Tamerlane.32
Irwin’s comments thus far were broad and very general. But he had only just warmed up. Florence listened with satisfaction as he went on to discuss at length the first chapters of each book. Her own initial suspicions had begun with the way Wells had appeared to depend, like “The Web,” on Victor Duruy’s account of the origins of the universe and the solar system; yet he had not listed Duruy among his authorities. Irwin focused on the same point: “You will find step after step there tracing practically identically the same points, and points where the plans of both are wrong, sadly out of proportion with implications that simply they are contradictory of known facts of history upon that point, in a detail where both go wrong here, and the peculiar thing is, in the face of these works which Mr. Wells submits as his authorities, he has refused to follow the correct course of his authorities, has chosen rather to go wrong with Miss Deeks’ plan.”33
He went on, word by word and line by line, comparing the first few pages of “The Web” and The Outline with Duruy’s account. Each incorporated the same words, the same phrases, the same facts, the same order of detail, the same errors. “The interrelation here cannot be explained as dependent upon a common mere suggestion; the dependence is documentary. Either, one is dependent upon the other, or both have used a common source and followed it closely.” But Irwin had examined the sources Wells had cited. Their accounts were different from his. They had rejected, for example, the old Laplace theory of the origins of the solar system. But Wells had not: it was vital to his explanation, just as it had been in “The Web.”34
All this was enough to make the head, not merely the world, spin. It was late in the day, and Raney adjourned the court until half past ten in the morning, in two days’ time.
Reporters for the Toronto dailies scurried from the courtroom to their newsrooms and their deadlines. The day in court had been a long one, and they had found the testimony of Florence Deeks less than helpful in providing them with copy. She had been too reticent on the stand, too much on guard. She had seemed to view the whole proceeding with suspicion. But Irwin was another story. The professor was a man of words, and not equivocal ones. Irwin, so far, was the story. The next morning, the account in the Toronto Star contained nothing of the plaintiff’s testimony, only her claim of $500,000 damages. But they quoted the professor.35
Later on Tuesday, Hugh Eayrs sent identical letters to Sir Frederick Macmillan and George P. Brett about Irwin and his testimony. The professor, he said, “has been rather a Bolshevik amongst the members of the Faculty and is thoroughly disapproved of by University authorities. He is a nasty greasy piece of work.” He added that their own expert, Professor Underhill, had gone through Irwin’s report and would find it easy “to riddle it.”36
On Wednesday morning at the appointed time, Irwin resumed his testimony. It was clear that he had not yet done with the origins of life on earth, and he brought with him accounts by other authors in order to demonstrate how the matter could have been handled in ways very different from those chosen by Wells. How remarkable it was, then, that he had opted to open his book in a way identical to that of Miss Deeks! How could this be merely coincidental? Robertson was worried that the detail might threaten to overshadow the substance of the evidence. Irwin needed to be more concise, more closely focused. “How could this be of any significance as bearing upon the question raised as to the resumé of the Outline?” Robertson asked.
Irwin’s bold reply was, “This illustrates how a man’s mind will work when he is frankly copying. I want to make the point of the distance between this and Mr. Wells, as approximated between Mr. Wells and Miss Deeks.” But Raney’s mind was on the clock.
HIS LORDSHIP: The difficulty is that if we pursue all the ramifications of discussion and exhaust all the things that appeal to you in detail, we shall consume an enormous amount of time, bearing in mind that we are dealing with eternity, almost …
MR. ROBERTSON: We say that it is almost impossible that two people writing independently on the subject could have been so close on the whole of the history of mankind, and it is not found anywhere else.
MR. ELLIOTT: My friend should not give evidence.
HIS LORDSHIP: I do not want to interfere, Mr. Robertson, with what is no doubt a carefully thought out plan of presentation; but the cross-examination is often much longer than the examination in chief.
MR. ROBERTSON: We have taken great care, and since the witness was in the box we have seen if something should not be done to shorten it. The Professor is not going to make it any longer than is necessary to state his point.
HIS LORDSHIP: There are practical limitations which, of course, are not binding upon Miss Deeks or Mr. Wells.37
The language of justice in the Ontario of the day was one of decorum and restraint. It was clear to those in lawyers’ gowns that the words of Mr. Justice Raney, uttered with just a hint at ironic understatement, had been a quiet warning: he wished the proceedings to be speeded up. This subtlety was lost on Professor Irwin. He took his lead, instead, from counsel. So he acknowledged the judge’s wish for brevity and then proceeded more or less to carry on as he had done before. There can be little doubt that Raney made a mental note of the conduct of the witness.
A lot of history remained to be covered if the case of Deeks v. Wells were ever to end. Irwin sought above all the judge’s attention; instead, he had taxed Raney’s patience. To some in the court, Irwin seemed arrogant in the extreme. His academic training, he said, had provided him with “an unusually good training” for work of this sort, examining the internal evidence of documents. “I speak as one who has a right to speak.” And speak he did, moving slowly towards his conclusions on the subject of Deeks, Wells, and Duruy. “The answer demands no intricate argument. The detail of verbal similarities, the identity in order of minor ideas, the sentences of similar structure show clearly that Wells’ rewriting of Miss Deeks’ story is not a re-telling of a remembered account read yesterday or even an hour ago. Making all allowance for possible unusual feats of memory the situation quite clearly was that the manuscript of Web was at hand as he wrote, if indeed it did not actually lie open before him. In any case his reading of this particular passage of it was so recent that his writing was to all intents and purposes a copying and expansion thereof.”38
Irwin once again read from his prepared report. He had only reached the simian generations on earth, but once again he pointed to “the close identity of ideas, at certain points their identity of order and even in some cases identity of wording,” for which he provided a tabulation of word sequences.
| Web: | Millions of years. |
| Outline: | Millions of simian generations. |
| Web: | An animal with a relatively enormous brain case; a skilful hand. |
| Outline: | One particular creature … it was small brained by our present standards, but it had clever hands. |
| Web: | Dwelt in caves and trees and roamed the forest. |
| Outline: | It clambered about the trees and ran, probably ran well on its hind legs on the ground. |
| Web: | Feeding on nuts and fruits. |
| Outline: | It handled fruits and beat nuts upon the rocks. |
| Web: | Much the same as the man-like apes of Borneo today. |
| Outline: | It was half ape, half monkey. |
| Web: | Tendency to throw stones, flourish sticks, and in general defeat aggression. |
| Outline: | Caught up sticks and stones to smite its fellows. |
| Web: | Emerged from the animal into mankind. |
| Outline: | It was our ancestor. |
“He was a nice animal to have as an ancestor,” Elliott found himself saying, for the record.39
Some in the room, those with scholarly interests and backgrounds, would have been impressed by Irwin’s close textual analysis, the detailed study he had made of “The Web” and The Outline, and the fact that he had examined in detail the secondary sources on which the two works had been built. He could state with authority quite precisely just when, and how, Wells had used his acknowledged sources – and, more important, when he had not. For the verbal sequence he had just outlined, he was able to demonstrate that “The Web” had used Christie’s Advance of Woman, and a passage from the historian James Harvey Robinson’s essay on the history of history; the latter had been found in Source Book of Social Origins. Robinson, in turn, had quoted from Sir Ray Lankester’s Kingdom of Man. Irwin insisted that Wells had used none of them. “So we have conclusive evidence here again that Mr. Wells has taken a passage from Miss Deeks, only thinly disguising his plagiarism by a few slight alterations and … [it] is written so immediately from Miss Deeks’ passage that he must have turned practically direct from her manuscript to his own writing.”40
Irwin had one final point to make before turning his attention to the ancient Near East: the treatment of early women in the two works. He pointed to the way “The Web” eulogized “savage woman” and attributed to her great importance in the evolution of civilization and its first inventions, such as huts, agriculture, milling, medicine, baskets, fire, cooking, pottery, weaving, canning, and so forth. Wells mentioned such accomplishments, but not only denied woman a place in their discovery but did so in a tone of disparagement: “The information at this point that the women were small squaws and grossly fat is dragged in.” The reference, said Irwin, was gratuitous and insulting. Why? Irwin had an explanation: “These ideas have no logical connection whatever so would seem to be suggested by some authority which Wells is following. And certainly Web provides just the required example … This would most readily explain his mood of contradiction here: he has found in Web information that he knows to be wrong so he denies it with emphasis; there was no pottery, no cultivation, no buildings, etc. His disparagement of women then becomes funny; he seems to say, Yes, your fine woman who was a paragon of virtues – she was nothing but a squaw and too fat at that!”41
To Irwin, Wells’s treatment of the history of the Near East demonstrated even more conclusively that Wells must have had access to “The Web” and put it to use. For example, both works completely ignored one of the most important periods of Egyptian social and intellectual development, that of the Middle Kingdom. “If Mr. Wells were really following any of his imputed authorities, his oversight here would be unintelligible. I mean there that all his authorities deal with the Middle Kingdom, and they stress the social and intellectual attainments of the Middle Kingdom, and more so because it has the social values which Mr. Wells wants, and yet he ignores it.” Why? Because he was relying on “The Web.”42
Irwin pointed to the difficulties faced by scholars in the interpretation of hieroglyphics. Differences in vocalization had created a wide range of spellings of Egyptian names, and scholarship reflected this. Irwin had gone through the sources Wells claimed to have used, and found that “not one of Wells’ authorities” used the names Wells had chosen. Only one work used precisely the same nomenclature: “The Web.”
One particular Egyptian name, Irwin said, was in fact what had first twigged him to the dependence of The Outline on “The Web” and had made him suspicious. It was the name “Hatasu.” In Florence’s work, she was characterized as “Regent”; in Wells’s, properly, as Queen. “The Web” knew little about her, The Outline rather more: that, for example, she was aunt and stepmother of Thothmes III and that sometimes on her monuments she was represented in male attire. But both works omitted much that was known to be important about her. Most significant of all, however, was the name. Irwin had worked in the field for more than twenty years and had never seen or heard of it until he started the current investigation. It appeared in none of Wells’s authorities, or in any other recent works. “Only by special investigation did I discover it,” Irwin concluded, “and that in old histories of 1890 and earlier. Since that time the accepted form of the name has been Hatshepsut.”
For Irwin, this was usage in common of such an extraordinary nature “as in itself almost to prove interdependence.” He added that in general such agreements were “so numerous and so peculiar as to provide again conclusive proof of inter-dependence; the question of authorities has already been assessed, so we can briefly summarize that we find proof that Outline was using Web.”43
Again and again, as he slowly talked his way through the ancient civilizations of the Near East, Irwin found telling signs of H.G. Wells’s reliance on the work of Florence Deeks. Why were their accounts so similar in detail while so different from all authorities other than Duruy? Of all things to say of the Phoenicians, why did both authors choose to mention their caravan voyages overland to the East? The Phoenicians were a seafaring people: they traded by sea, not by land. This was a fundamental detail of their history, known to all historians, but not to Miss Deeks, for she had spoken of Phoenician “caravans” plying their trade overland. And so had Mr. Wells.44
William Irwin had formed a mental picture that helped explain such identities of language, fact, and error, and he ventured it: “Suppose he had read the Web’s passage just before starting this chapter, unless his memory is one of the most unusual power the similarities would be much less close than we actually find. The situation will however be satisfied by this theory. In his reading of Web this passage had attracted him; he had made a note of its character and location – the difficulty of locating passages in this manuscript, unprovided as it is with index or table of contents, implies strongly that his notes on relevant passages were written, not mental. Then coming to this section 8 he realizes that this summary of Phoenician commerce is just the thing he wants; he turns it up, refreshes his memory with a hasty glance, then pushing the manuscript aside writes this concluding section of his chapter.45
Irwin went on, in a similar manner, to work his way through the Wells and Deeks accounts of the history of Israel and of Greece. With respect to the Holy Land, the two works had of course relied heavily on the Biblical account, yet both also made “identical allusions” of a distinctive sort; both favoured, for example, an explanation of kingship at odds with contemporary scholarship. To illustrate his point, Irwin examined in sequence their treatment of Samuel, Saul, David, and Solomon.46
As to the Greeks, Irwin noted yet more instances of language in common, peculiarities of interpretation, and errors of fact. Both “The Web” and The Outline had suggested that Cyrus the Younger had been king of Persia. “We are driven to conclude that here again the two works agree in defiance of history.” Florence had referred to Aspasia as the wife of Pericles; to Wells, she was “in effect his wife.” Why this exact phrasing? Why, asked Irwin, had he not simply referred to her, like the authorities he claimed to have used, as a courtesan or as his mistress? The answer was simple: “The astonishing rendering is due to the influence of a source which Wells is following. And it is remarkable that this odd idea appears in Web also, save that there it is presented without apology.”47
The evidence Irwin wished to introduce was not only that of expert opinion, but also of a physical nature. Florence had provided him with the version of “The Web” that had been returned by Macmillan of Canada in 1919, and he had examined key passages from it and The Outline to see whether the damning pages were those that had been dog-eared or otherwise showed signs of hard use. It was his view that there was indeed a correspondence between passages suspiciously alike and these pages. Irwin invoked the image of Wells at his desk: “The detailed similarities at these points show that the manuscript of Web was at hand as he wrote, and the dispersion of these key passages throughout a large part of this earlier section of the two works, as well as their linking up by a considerable number of minor similarities which I have not listed demonstrate that his reference to Web was no chance or sporadic thing but that the manuscript was one of his authorities, constantly available, lying close at hand at his work table and referred to repeatedly if not steadily throughout the progress of his writings. Sometimes it lay open before him and his writing was palpably a disguised copying of Miss Deeks’ passage; at other times he made notes of her treatment and wrote more freely from these notes.”48
If Raney was willing to allow such wild speculation, however well informed, into the record, Robertson was certainly not going to object.
Thus encouraged, Irwin plunged on, into a discussion of the similarity between the overall plans of the two works of world history. After the break for the lunch hour, Alexander and the Macedonian empires rose, Jerusalem fell, and so did Rome. By mid-afternoon, the Ottoman Turks and the Persians, India, China and Japan, and all Central and Eastern Asia had made their appearance (although only because both “The Web” and The Outline had seen fit to neglect them). “We have found at point after point,” Irwin concluded, “an amazing agreement as to selection of topics, as to order of presentation, and in the main as to proportionate emphasis. This agreement was frequently followed into peculiarities amounting even to errors, and this in the face very often of the combined authority of the best works in the field … Making all allowances for differences, it yet remains that the two works have one and the same plan; and that plan, we must conclude, Mr. Wells took from Miss Deeks.”49
So the conclusion of the entire investigation, my answer to the problem which Miss Deeks set me last November, is this: –
1. Mr. Wells had read Miss Deeks’ manuscript before commencing his work on what we now know as The Outline of History.
2. He analyzed her manuscript and made written notes of features which attracted him.
3. With but unimportant revision he adopted this analysis as a plan for his own writing. His use of the plan of Web was such as to justify the epithet “slavish.”
4. Certain passages in The Web he took over in detail. He re-wrote them in such a fashion as might be hoped to obscure their dependence, but they remain a palpable copying.
5. He kept her manuscript readily available as he wrote, apparently at times it was actually open before him, and he made frequent reference to it.
6. He used The Web as his chief source and authority. He followed it very much more closely and continuously than he did any of the works to which he refers. Indeed, of some of these I can find no evidence of use whatever. His citation of them is no more than a bluff.50
Just how Wells had come to use “The Web” was a matter, Irwin confessed, he could not answer fully. But given that Wells had already stated in his discovery evidence that he “had never formulated definite plans for the book” prior to 1918, the professor was willing to try.
W.J. Elliott could abide this no more. The witness did not seem to understand the distinction between the evidence of an expert and the gossip of the senior common room. “Of course this is not evidence,” he stated. “I am not objecting to this, because it is quite evident that this witness is carried away and wants to make a speech, I think; but it is quite evident that this is not evidence.”51 But Irwin went on, as if undisturbed at his University College lectern, his historian’s imagination in full flight before the captive audience.
It is quite clear that he regarded Miss Deeks’ manuscript very highly; no man would make such extensive use of it otherwise. It must have roused him to a realization of the possibilities in publishing such a work at that time. But this is to be considered as well: having undertaken the project, he wrote under very high pressure … Moreover, the time which the evidence allows for the actual writing strongly corroborates this. Somewhere about October of 1918 he is fairly started; but the next July the work is complete save for some minor revision …
In about nine months he produced a manuscript of about half a million words, surveying all the intricate and recondite subjects entailed in a history, not of mankind alone, but of the earth. It is simply stupendous. And if I understand aright his testimony, he denies that he dictated to stenographers; on the contrary he wrote it entirely himself in longhand …
To do that in a bare nine or ten months is a task that might well stagger one. The mere writing was exacting. There could have been no time whatever for exhaustive reading, for collation of authorities and maturing of views and modes of expression. These things can be done only through years of quiet work, not in a few hectic months of feverish activity … For some reason he felt that speed was of importance. It may have been that he felt the market was peculiarly ripe for his purpose, and that he must hasten before the public mood changed … But there is no evidence against the view, and probabilities favor it strongly, that his reason was an anxiety to forestall the publication of The Web. He must have known that he could retain the manuscript in his possession but for a limited time. 52
From Florence’s perspective, Professor Irwin had done no more than tell the truth. But there was a distinction to be made between the search for the truth and the system of justice. Irwin’s initial criticisms of the literary value of Wells’s work had been highly subjective and beyond the realm of his expertise. He was a historian, not a critic. That had set the tone of his subsequent testimony, just as, unintentionally, it had served the cause of the defence. It was not Irwin’s task to settle the truth of the case as a whole, and in his highly speculative but unequivocal attempts to do so he had undermined the authority of his own testimony.
Irwin’s opinions on subjects other than those in which he was an acknowledged expert may well have been interesting, but they violated the rules of evidence. In the eyes of the court, they neither tested nor furthered the evidence – they lacked probative value. His theories were just that – the academic musings of a professor who wanted to give a lecture. Every time he strayed from the detailed comparison of “The Web” and The Outline, he made his own motivations suspect. In fact, Irwin had made many extremely important points as an expert in his field, and he had proved that he possessed an unrivalled knowledge of the works of history in question. But as W.J. Elliott quickly recognized, each time the professor took it upon himself to solve the case, he deflected everyone’s attention away from the evidence of real importance: the slow and damning accumulation of similarities and differences in use of language and in historical detail.
Under normal circumstances, counsel for Wells would have cross-examined the witness at length. Elliott, however, knew that this was not necessary. Crossing verbal swords with Irwin over the people and events of history, he knew, would place himself at a great disadvantage with so learned a witness. So he kept his cross-examination brief, and away from the validity of the internal evidence. Instead, he called into question Irwin’s motivation in undertaking Miss Deeks’s request, and pointed to the fact that she had earlier asked scholars as eminent as Harry Elmer Barnes and R.M. MacIver to do so, and they had wisely refused. He noted that Irwin had confined himself only to the early sections of the two books. He alluded to the fact that if it could be proven that “The Web” had been completed after publication of The Outline of History, his testimony would be worthless.
And what, Elliott asked, if “The Web” had remained in the possession of Macmillan of Canada to the end of January 1919, as John Saul’s letter of the 31st of the month seemed to suggest? How could Wells possibly have had Deeks’s manuscript in his possession long enough to have made use of it? Surely, Irwin did not suggest that the eminent men employed by H.G. Wells had done nothing to help the author out? Professor Gilbert Murray? Professor Ernest Barker? Sir Richard Gregory? How could Irwin possibly have stated that The Outline was shoddy and without literary excellence? Finally, Elliott asked, had Irwin really “read all the authorities Mr. Wells refers to?” Irwin answered with a question of his own: Had Elliott?53
Robertson’s re-examination consisted of only a few questions. Had the request of Florence Deeks in any way compromised Irwin’s independence of judgment? No. Was it not true that he had been asked to make his report because an earlier expert could no longer do so? Yes – Sir Bertram Windle, who was now deceased. And what of Wells’s use of his learned collaborators? Their contribution seemed to have consisted only of comments the author lazily placed into his footnotes – comments that often contradicted the text itself. Finally:
MR. ROBERTSON: In cases where you have used the argument that The Web and The Outline are in agreement, but they are both in disagreement with the known authorities, in that sort of instances did you read and search the other authorities upon the point?
I searched them. Some of it was not necessary to read; I have known them well for years.
HIS LORDSHIP: He has been living with this subject for years.54
Court that day may well have seemed to span not the usual hours, but several millennia. Only the first expert witness for the plaintiff had testified. Two more were yet to come. As he sat waiting for the next historian to make his appearance, Hector Charlesworth mulled over the day’s proceedings. “The witness naturally had a grand time when he got to Babylon and Egypt,” he would later write. “That day in court was rather like an historical pageant. Enter the prophet Samuel, enter King Saul, enter King David, and so on.”55