“It’s a far larger question of historical truth. This lie, if lie it is, has become the cornerstone on which a whole false edifice may be erected. And even if it wasn’t so, even if it was just one single historical oddity, I see now that I’ve been wrong all these years in treating it lightly. If an historian has any function at all, it is to maintain honesty.”
Angus Wilson, Anglo-Saxon Attitudes (1956)
SO QUIET WAS IT ON BAY STREET on the day after the trial ended that William McLaughlin could hear the scratching of pen over paper. He was alone in the office on a Saturday morning, and his report to Hugh Eayrs provided a good opportunity to reflect on the Deeks action. The trial, he wrote, had gone off largely as expected, except for the strong testimony of Professor Irwin. “If the action is dismissed,” he concluded, “we think it highly probable that Miss Deeks will appeal, as she is just that type of obstinate woman, that is, of course, unless she has run out of money.”1
A week later, he reported to Eayrs again. Simple relief that the trial had ended had now given way to a more sober evaluation of the evidence brought before the court. No doubt, he had discussed the case with his colleagues. “There is this to be said in favor of the Plaintiff’s case,” he wrote. “There are sufficient similarities between the two works to have enabled her to obtain the evidence of three experts, whose honesty I believe to be beyond question, two of them in particular going to a considerable length in giving it as their opinion that it would be little short of a miracle that Wells could have written ‘The Outline of History’ without having first read ‘The Web.’ In this connection we felt that we were very fortunate in having Professor Underhill’s evidence. We feel that his evidence will be sufficient to satisfy the Judge that the other experts were mistaken. Mr. Justice Raney would have been in a rather difficult situation had we gone to trial without having expert evidence, as he would have found considerable difficulty in disregarding such definite evidence on behalf of the Plaintiff.”
McLaughlin reminded Eayrs that Wells had specifically instructed Elliott not to engage an expert witness for the defence. As he had pointed out to Elliott during the trial, if Macmillan of Canada had not had Mr. Underhill “to fall back on,” Wells’s lawyer “would have felt himself at that time in a rather precarious position.” Because of this, McLaughlin would do his best to have Elliott’s clients assume a portion of the $750 that was deemed appropriate as Underhill’s fee.2
For the remainder of the month, those involved in the case waited anxiously for Mr. Justice Raney to schedule final arguments, but he appeared to be in no rush. Towards the end of June, McLaughlin learned that the judge had indicated privately to Miss Deeks’s lawyer Percy Smily that he did not see why he should hurry since it had taken his client “about eleven years to get this far.” McLaughlin reported the conversation to Eayrs, care of the British Empire Club in London, noting that Raney had said he presumed that the defence was anxious “to have their names cleared.” “It seemed to me,” McLaughlin wrote with evident relief, “that he was not taking the plaintiff’s case very seriously.”3
At least three times that summer, by Mabel’s recollection, Florence was summoned to Osgoode Hall to hear final arguments; each time, someone told her that the hearing had been postponed. Raney did not hear the lawyers’ final arguments until Saturday, September 13, 1930. R.S. Robertson recapitulated the case for the plaintiff. It took him three hours, and during the presentation Raney constantly challenged him. Florence and Mabel had difficulty hearing Robertson at times, but what they did hear did not impress them. In Mabel’s view, Robertson’s argument “was not worthy of a public school scholar.”4 When Robertson had finished, Raney announced that he did not think it necessary to hear argument for the defence and that he would hand down his judgment in a few weeks, after his return from circuit hearings.
Hugh Eayrs reported to Sir Frederick Macmillan that he had been impressed with Raney’s command of the case and that “quite clearly … he did not think the charges made had any basis in fact.” Eayrs did, however, take issue with one newspaper’s account of the day’s proceedings, and he wrote to Claude C. Jennings of the Mail and Empire to correct the matter. The newspaper had reported “that the officials of the Macmillan Company were not above reproach when the President went to the penitentiary and if he would do that he would surely steal a manuscript.” Eayrs noted that the official in question should have been described as the former president, not the president. “I think we can fairly ask that you take your own way of amending the impression which might be left in people’s minds.” Fortunately, Eayrs had managed to convince the publishers of all the Toronto newspapers but the Telegram to suppress the news about Wise, his crime, and his whereabouts.5
Confident that victory was near, Eayrs and the other defendants began to consider how they could recover their costs once Raney announced the decision in their favour. Sources had informed him that Miss Deeks was “absolutely without money.” The rich brother had died and he had left the bulk of his estate to his own family. Eayrs went on to say that the brother had left the Deeks sisters only the house on Farnham Avenue (worth “at the outside” $10,000), but nothing else. Robertson had received only twenty per cent of his fee on going into court, but “no more since,” and, the source said, he was “exceedingly disgruntled.” Irwin had been promised $2,000, but he too had not “seen a penny.” Given her financial difficulties, Eayrs wrote to Brett, Florence Deeks would very likely not appeal.6
On September 27, 1930, in Toronto, Mr. Justice Raney read his reasons for judgment to a hushed courtroom. He entered the room, as Mabel recalled, “with his gown flying and looking most important and on his ‘high horse.’ ”7 Then he proceeded to dismiss the case outright. Florence and Mabel sat in shock and disbelief. Florence had been appalled at the antagonism the judge had shown to Robertson when he had argued her case a few weeks earlier, but she had never expected this! He now found the defendants not guilty and held her responsible for costs.
All her effort had come to naught. Of the entire judgment, she could agree only with the judge’s estimate of the seriousness of her charges: that if they were well founded, Wells was guilty not only of plagiarism but also of “a peculiarly despicable form of literary piracy,” and that Macmillan of Canada would therefore have been guilty of theft and conspiracy.
It was, in her view, an outrageous judgment. She knew that the direct evidence about the probability that “The Web” had made its way to England, and to Wells, had been circumstantial. But to her mind it had been extensive and, taken as a whole, powerful. Yet, later, when she came to read the written statement, she found that Raney had dismissed it in a single paragraph, saying only that there was “no evidence that the manuscript was sent to England, or that Mr. Wells or anyone else in England knew of its existence, or that the Macmillan Company of Toronto, or anyone else in Toronto, knew that Mr. Wells was writing, or had it in mind to write, a history of the world.” No explanation; no weighing of the evidence. No mention of the mysterious mistakes in the Toronto manuscript log. No word about the evasive testimony of John Saul. Nothing at all.8
The judge had disposed of the intrinsic evidence in a similarly cavalier manner. He had not found any similarity between The Outline of History and “The Web” to be convincing, and he had gone out of his way to castigate the testimony of Professor Irwin. Raney accepted that “significant phrases” from Duruy had found their way into both works. He also accepted Irwin’s contention that Wells had not used Duruy as a source. But his explanation was that a historian as eminent as Duruy had obviously been “a mine for later historical writers.” For Raney, the fact that Wells was not a historian sufficiently explained his unfamiliarity with the French scholar. But, he added, “some of his associates were historians and were undoubtedly familiar with Duruy, and there appears to be plain evidence of the influence of Duruy in the opening chapter of The Outline of History.”9
Had Raney actually listened to the evidence before him? Wells had testified that, in his recollection, he had not used Duruy. The testimony of Wells’s associates had been, plainly and unambiguously, that they had done no research for him and that they had written none of his book. How, then, could Raney possibly attribute the presence of Duruy’s words in The Outline to them? To Florence, Raney’s explanation was incomprehensible.
Much of Raney’s judgment consisted of lengthy extracts from Irwin’s testimony, followed by immediate dismissal of his views. The common spelling of Hatshepsut’s name as Hatasu, the judge said, was no doubt due to common use of a source written earlier than 1890; but this was almost the only instance of common usage or mistakes on which he had anything to say. He simply quoted Irwin’s words, and then rendered his conclusion. “If I were to accept Professor Irwin’s evidence and argument there would only remain for my consideration the legal questions involved in the piracy of a non-copyrighted manuscript. But the extracts I have quoted … are just solemn nonsense. His comparisons are without significance, and his argument and conclusions are alike puerile.” The fact was, said the judge, that every writer of a work such as The Outline of History had necessarily to draw on facts used by previous authors.
Raney had little to say about the testimony of Brett and Burpee except that while they were “men of excellent standing in the Canadian world,” and without doubt were qualified as “experts in their respective fields,” they had chosen to provide evidence consistent with that of Irwin. That, in Raney’s eyes, was enough to condemn the experts and the evidence alike.10
To Raney, it was scarcely necessary for the defence to have offered any evidence refuting “Professor Irwin’s fantastic hypothesis” that Wells had had “The Web” at his side as he wrote The Outline. After all, Mr. Wells, an honourable man, had flatly denied this, and had stated that he had “never seen or heard of Miss Deeks’ manuscript.” Similarly, the evidence of the witnesses called by Macmillan, Raney said, had satisfied him “of the good faith of that company and that no improper use was made of Miss Deeks’ manuscript.”
And what of Miss Deeks herself? She had gradually come to believe “in the wickedness of the Macmillan company of Toronto and of Mr. Wells.” It was a belief that had grown in her from the first moment she had seen The Outline in 1920, and it had gotten worse – “as time passed it became an obsession.” She was obviously not “in a condition of mind to judge fairly of the very serious charges she was bringing against a reputable publishing house and an eminent and respectable author.” This, said Raney, should have been obvious to her legal advisers, but they had allowed her to libel the defendants with impunity. “This action,” he concluded, “ought to have been discontinued after the examinations for discovery, and certainly it ought not to have been brought to trial.”11
Florence later recorded her surprise on reading Raney’s reasons for judgment. She had expected “an exhaustive presentation of close-knit and critical reasoning,” but what she got instead was a document of thirteen and a half typewritten pages. Three of them introduced and outlined the case, seven consisted of quotations from Irwin’s testimony, and another contained quotations and summary of the testimony of the other two expert witnesses for the plaintiff. Of the entire document, only a page and a half contained Raney’s “reasons,” and – in Florence’s words – “even here His Lordship had given not reasons but vituperation.”12
Florence Deeks begged to differ with Raney. “With complete and respectful acknowledgment to the learned trial judge,” she wrote in her account of the case, “we can but apply to his judgment of the case the words which he so inappropriately applied to the scientific testimony on the documentary evidence,” namely that it was just “solemn nonsense,” “without significance,” and so forth. “I have not the least desire or intention to injure anyone unnecessarily but I consider that respectability and responsibility are qualities which cannot be applied to the Macmillan Company and Mr. Wells as brought out by the evidence in this case.” Accordingly, she decided that she had no alternative but to appeal Raney’s decision. What else could she do if justice was to be served?13
Word spread quickly among the defendants that they had won. Wells’s London solicitor wrote to his client to tell him the news. So did George Brett, who added that because of the plaintiff’s “failure of money supplies,” he doubted very much whether anyone would ever be reimbursed for the heavy costs they had incurred. In another letter, Sanders Fiske told Wells that once the costs were awarded in Canada “we have to try & make the woman pay.”14
For his part, Wells had inquiries of his own to make. He asked Fiske to find out who it was, “connected with some Authors Society,” who had given evidence against him. On October 10, 1930, Fiske informed his client that the man was Lawrence J. Burpee, formerly secretary of what the lawyer believed to be called the “Canadian Society of Authors.” He forwarded Wells a copy of the statement Burpee had read into the court record. A few days later, he sent him a copy of the Mail and Empire account of Raney’s decision.15
Back in Toronto, Hugh Eayrs used the language of Raney’s judgment to support his spin on the affair. Thanking a Kingston journalist for running a piece on the case, he added: “We were, of course, for five years, in point of reputation, the victim of a woman who, though perfectly sincere from beginning to end, was quite obviously obsessed.” The same day, he learned that Florence had announced her intention to appeal. Recovery of costs would be delayed, and, as he informed George Brett in New York, McLaughlin was now in the process of trying to determine just what resources, if any, the woman possessed. Eayrs needed to know, because, as Fiske in England had informed Wells, he had begun to inquire of his Toronto colleagues whether it was possible to make Miss Deeks “give security for costs.”16
The pressure of the case had eased, and Hugh Eayrs and W.W. McLaughlin ended the formalities they had adopted earlier in the salutations of their letters. “Dear Billy,” Eayrs began a letter to McLaughlin dealing with reimbursement for legal expenses; “Dear Hugh,” McLaughlin replied, suggesting that a sum of $2,000 would be sufficient as an initial payment. It was as though, the Deeks decision finally handed down, both men could at last drop their guard.
Formalities remained, however, when Eayrs and Brett corresponded, for Toronto and New York had begun to quarrel over the splitting of costs. Eayrs had suggested that the New York office carry half the expenses; Brett refused. As he reminded his younger colleague, “even though we are involved, having been sued jointly with you and others, the suit was really brought about because of happenings in the Canadian office.” Eayrs could do little more than reiterate his hope that New York would split the costs equally after the appeal was heard, and to insist that the suit had come about through no fault of his company. “It was brought because a silly woman thought she had a case, and now, even after that most sweeping judgment, still seems to have the same idea in her mind.”17
As the year 1930 yielded to 1931, the Toronto and New York branches of Macmillan continued to wrangle over the apportioning of costs. McLaughlin’s firm alone had charged over $6,000, and Brett refused to pay half, so Eayrs sought support from Sir Frederick Macmillan. The appeal did not work. George Brett’s son, George P. Brett, Jr., was now treasurer and general manager of the New York firm, and he had chosen to take a tough stance. In March 1931, he informed Eayrs that “we would not under any circumstances consider paying half of the lawyers fees.” He did, however, offer Eayrs the olive branch of a cheque in the amount of one-third of the total expenses of the suit. Eayrs continued to press for half, much to Brett Jr.’s annoyance.18
Florence knew that the odds of winning an appeal were against her, but her faith in the inherent strength of the evidence remained unshaken. Her experts had told nothing less than the truth as she understood it. The trial judge had erred in fact and in logic, and he had ignored much of the evidence. She could not bring herself to believe that a second judge would do the same.
The odds were stacked against her in more ways than this. She was all but penniless. The deaths of her mother, and then George, had thrown all the members of the family into a state of uncertainty. In the mansion on Admiral Road, Helen, newly widowed, was now forced for the first time to handle the details of her family’s financial affairs. George had left an estate of almost a million dollars, over half in stocks, a legacy that would need careful attention if its value was to be maintained in the failing international economy. Fortunately, the stocks were diverse and of the blue-chip variety: textiles in Monarch Knitting; mining in Kirkland Lake and International Nickel; utility companies in Montreal, Shawinigan, and Baltimore; Chrysler Motors; Dominion Construction; and others. The estate had also included $77,320 in bonds and $113,398 in cash and other real assets. George had owned the house at 140 Farnham Avenue outright, at a value of $9,750, and held $33,600 in equity in the mansion at 77 Admiral Road.19
A prudent man, George S. Deeks had provided well for his immediate family. His widow was to receive a sizable annuity from the residual estate until the eldest son turned twenty-four. At that age, he would receive $22,000, plus one-third of the income over the $12,000 per year granted to his mother; later, so would his two brothers. When each son turned thirty, he would receive an annuity of $5,000 plus an equal share in the residue of the estate.
The three sisters who lived on Farnham Avenue had not been neglected, but neither did they fare as well as their sister-in-law or their nephews. George had left them a life interest in the house they lived in, and an annuity of $1,800, which of course they were to share equally. If Florence was to continue in her quest for justice, she would need to do so on an annual income of $600 – $50 a month. She held no real property of her own. She had yet to meet the expenses for which Robertson and Smily demanded payment, and she needed to find resources to fight the appeal.
Somehow, she managed to appease Smily. One can only speculate how she did so. Even if Florence, Mabel, and Annie pooled their living allowances, they would not have been able to meet the legal costs. It is possible that one or several of the sisters appealed to their circles of acquaintance; evidence suggests that later they did.20 At this point, however, with the court date for the appeal fast approaching, it is more likely that they sought help closer to home. Just how much enthusiasm Helen Deeks retained for Florence’s cause after the deaths of her husband and her strong-willed mother-in-law is not known. It is reasonable to conclude that, perhaps after several requests from her three sisters-in-law on Farnham Avenue, she gave them what she thought she could afford – or perhaps what she believed to be appropriate.
R.S. Robertson had sat down with his client shortly after the decision and advised against an appeal. He claimed to believe that her charges were well founded, but, as Florence recalled his words, “he said the Judges of the Appellate Division would never take the trouble to go into all that evidence – they were too indolent, that’s the word he used, I feel sure. And besides several of those judges were old … Mr. Robertson said the Appellate Division would just follow the trial Judge who had the advantage of seeing and hearing the witnesses.”21
Robertson suggested that Miss Deeks seek some “brilliant young man” with more time on his hands if she wished to carry her case further, and he offered to brief the individual. This would have meant much more delay and expense, so Florence declined. Robertson helped his colleague Smily prepare the appeal, but soon afterwards he announced his personal withdrawal from the case. “Hope seemed to be doomed,” Florence recalled of her reaction to the news.22
Few if any advocates in Toronto would now touch the case of the obsessed spinster. According to Mabel, “some loyal friends” began to urge her sister to argue it herself.23 Florence’s initial sense of hopelessness gradually gave way to the essential righteousness of her cause. “So strong was my faith in the ideal of justice permeating the British Judicial system and in the competence and fairness of the Canadian Courts that I was unwilling to forego the privilege of presenting the case before the Appellate Court, and I decided to undertake the task myself, well supported by friends.”24 She sat down to study the evidence presented at trial, and, with the help of Professor William Irwin and her “staunch friends,” she prepared a lengthy written argument for use in the court of appeal.
When those still interested in Deeks v. Wells entered the Osgoode Hall courtroom on May 13, 1931, and saw the judges of the Appellate Division of the Ontario Supreme Court take their places, they were no doubt impressed. Four distinguished men swept into the chamber, their shin-length black robes in stark contrast with their upturned collars and brilliant white bibs. The judges, like the bibs, seemed cut from the same pattern.
The Honourable F.R. Latchford, K.C., Chief Justice in Appeal, led the way to the long, elevated bench at the front of the room. Of Irish parentage, the seventy-seven-year-old former attorney general of the province of Ontario, known as an able, industrious, and painstaking judge, took his seat at the centre of the judges’ bench beneath the large gilt lion-and-unicorn coat of arms. Three colleagues followed him. John Fosberry Orde, a native of Nova Scotia, a long-time Conservative, and former president of the Royal Canadian Golf Association, was a comparatively youthful sixty-one, but having been appointed to the Appellate Division in 1923 he had as much experience in this court as did the chief justice. Cornelius Arthur Masten, seventy-seven, whose distinguishing mark was his black spats, was long familiar with Osgoode Hall, having learned his law there after attending Victoria College in Cobourg in the late 1870s.
The fourth justice was the eldest. Born in 1852, William Renwick Riddell, like Masten, had graduated from Victoria College. With his bushy moustache and long sideburns trimmed to a sharp point so that they nearly reached his mouth, he was not a man to go unnoticed. Of the four justices in the courtroom, the seventy-nine-year-old Riddell was easily the best known to the public, not least because among his other accomplishments he was a well-known Ontario publicist, man of letters, and legal historian. Notorious for the reluctance with which he parted with books he borrowed, he had donated his substantial collection of Canadiana to the library of the Law Society.25
In cases involving several litigants, judges were accustomed to seeing a battery of legal counsel before them. The presence of a sixty-seven-year-old woman acting as her own advocate made this one very different. Like the professions of medicine and engineering, the guild of lawyers called the Law Society of Upper Canada had proven to be formidably resistant to the presence of women within it. Women lawyers there were in Ontario, but as often as not they had been made to feel unwelcome as colleagues in the cause of justice. Only five years earlier, in the presence of parents, fellow graduates, and distinguished benchers, a judge had told one of the few young women about to be called to the bar at Osgoode Hall that while he greeted the male graduates, “it was constitutionally impossible for him to welcome the young women …” He went on, she remembered, to say that he regretted that the parents “had foolishly spent so much money to educate us for a profession in which there was no room for us.”26
The legal position of women in Canadian society, while an improvement on that of the nineteenth century, remained a second-class one. In 1928, in a unanimous verdict, the Supreme Court of Canada had declared that women did not legally exist as “persons” and could not therefore hold public office as senators. Five women from Alberta appealed the decision the next year to the Judicial Committee of the Privy Council in London, which had overturned the Canadian verdict. Their Lordships declared it “a relic of days more barbarous than ours.”27
When Florence Deeks stood before the four members of the Ontario court of appeal, she did so in the knowledge that only three months earlier Cairine Ray Wilson had made a mark for women in Canadian history by taking her place as the country’s first woman senator. But apart from that, she was very much alone in front of the four judges. She knew from the harsh words of their colleague Mr. Justice Raney that she had been marked as a woman who, without husband or children, had simply found another outlet for her frustrations. In their eyes, she thought, she was just an old maid with nothing better to do with her life than to fix upon some slight of her own possessed imagining.
“I shall undertake,” she began, “to show that the total of evidence, and the whole history of the case, is such as to vindicate fully my charge that the Macmillan Company put to an illegal use the MS. which I entrusted to their possession, that during the time the MS. was in the possession of the Macmillan Company Mr. Wells wrote ‘The Outline of History’ and that in this task he made use of my MS. I shall undertake to show that all this was done, not only in violation of my proprietary rights and copyright but also at the cost to me of severe sacrifice and injury.”
With those words, she launched into a systematic review of the history of “The Web,” of the implicit and direct evidence of its use in the creation of The Outline of History, and of the errors made by the trial judge. “I shall request your Lordships to observe that the Learned Trial Judge in his decision, failed to give proper weight, not only to the direct but also to the circumstantial evidence, in proof of my charges; and that his Lordship, notwithstanding his decision against me, yet, strange as it may appear, made admissions and even advanced arguments which amount to a virtual finding of fact in support of my charges and in accordance with the evidence and argument of my witnesses.”28
For the better part of three days, Florence Deeks made her argument before the court, under three categories: the evidence in support of her charges, the evidence and position of the defence, and the judgment of Mr. Justice Raney. Mabel was proud of her older sister’s cleverness and her “fine kindly dignity,” and of how well she knew her case. She found the panel of judges decidedly less impressive, and when later she compared mental notes with Florence she found that they were of like mind. Orde seemed to nap in his chair each day after lunch; he seemed complacent, “almost handsome with his benign countenance and wealth of snowy white hair.” Latchford made only a pretence at interest, and Masten really did appear quite deaf. Perhaps because of this, at times Mabel found on his face “a certain lassitude or bewilderment.” All seemed to defer to Riddell. He sat erect, “with an attitude of firm self confidence – especially when his arms were folded securely across his expansive chest.” He looked young for his age, and he was the one who did most of the talking.29
Gone was Florence’s reticence during her testimony in the first trial, and she went over the case in detail, point by point, highlighting the contradictions and the outright evasions in the defendants’ evidence.
What of Raney’s uncritical acceptance of Wells’s assurance that he had not heard of, seen, or used “The Web”? Wells, he had said, was an author of renown who must be taken at his word. Florence refused to accept the assertion. “Is Mr. Wells’ mere word on an important matter affecting him vitally, to be accepted as of un-impeachable honesty?” She emphasized that “mere scandal-mongering” was “abhorrent” to her, but there were certain facts to consider. “Mr. Wells’ reputation is far from spotless,” she said, “and while I am well aware that popular repute is not legal evidence yet equally the bland assumption of the defence, and I fear too, of the Learned Trial Judge, that Mr. Wells is beyond criticism, is likewise not evidence. That a man has written hosts of novels, some of them of very dubious quality, is not legal evidence nor even plausible presumption, of his immaculate character. If the defence wish to attach any weight whatever to this point, they must first produce their evidence of Mr. Wells’ high honour, and … we shall soon see whether or not it is true that where there is much smoke there must be at least a little fire.”30
On she went, covering not only the evidence of the trial but also the reasons for judgment, peppering her argument with quotations from the 1927 edition of Copinger’s Law of Copyright, the 12th edition (1923) of Pollock’s Law of Torts, Oldfield’s Law of Copyright (1912), and cases such as Duke of Queensbury v. Shabbeare (1758) and Albert v. Strange (1849) that served as precedents in actions concerning rights to intellectual property.31
At times, she found herself distracted. At one point early in her presentation, in the midst of discussing the direct evidence, Riddell interrupted. “What about the mistakes – have you any mistakes between ‘The Web’ and ‘The Outline’?”
“Yes, my Lord,” Florence replied. “Would it be better to take up the internal evidence now and leave the further direct evidence until later?”
“Yes, let’s have the mistakes now,” he said, and with that Miss Deeks began hurriedly to shuffle her papers.
At other moments, the all-too-evident deafness of Masten made matters difficult. At times, Florence recalled, “he would hold his hand to his ear like a megaphone and say in a deep rich voice, ‘a little louder please – I don’t hear very well.’ ” The clerk of court advised her to aim her voice directly towards him. “I did my best,” she later said, for “his Lordship was rather old as well as deaf; and to please him I even shortened my argument when he asked me to do so in order that we might finish this week as he wanted to leave town.” As a result, she directed the attention of the judges to only a few of the many verbal similarities between “The Web” and The Outline.32
As time and circumstances permitted, Florence reviewed the intrinsic evidence her expert witnesses had provided so forcibly and in such detail, and she demonstrated how in so many ways the trial judge and the expert witness for the defence had chosen to discount it. To what extent had the lively testimony of Professor Underhill fundamentally addressed, much less countered, the issues at stake? Florence’s flat answer was: Little, if at all. Underhill, she pointed out, “did not understand the nature of his task. It involved primarily and supremely the science of textual criticism, the examination of general and detailed features of documents to determine their interrelation.” But what had Underhill done? He had dismissed this responsibility as mere “quibbling over words.” She insisted that, once scrutinized, his evidence proved to be virtually “worthless.”33
In the final hour or so on the third and final day of the appeal, Florence turned to the errors of Raney and the record of the defendants. Raney’s conjecture that common use (and misuse) of Duruy had been due to reliance on the same sources, or that Wells’s “helpers” had been responsible for them, she declared, was clearly at odds with the evidence. Raney had chosen to ignore and then to dismiss the testimony of the expert witnesses for the plaintiff because they did not fit his particular theories. Her experts had provided overwhelming evidence, yet “the Learned Trial Judge waves them aside with scorn, and himself undertakes to act as an opposing literary critic; and novice as he is in this field where only specialists may speak, he advances his own theories and upon them he bases practically his entire disposition of the case.”34
She went on about Raney’s judgment for some time, saying in conclusion: “There is in the entire judgment not a bit of sound reasoning or any major point, there is no approach to a comprehensive grasp of the evidence … It is apparent that his Lordship did not consider the nature of the evidence.” Raney had simply concluded that because “the defendants were ‘a respectable publishing house and an eminent and respectable author,’ ” her charges “and the weighty evidence in support of them must be waved out of court.”35
“Surely, that is begging the question,” said Florence, of Raney’s assumption. What were the reputations of the main defendants? The president of Macmillan of Canada at the time “The Web” was in its possession was now in prison. Its current president had admitted under oath that during the tenure of his predecessor, a number of still unaccounted for “business irregularities” had existed. The senior editor had admitted under oath that “another Canadian author had complained to him of the plagiarism of his MS. while in the custody of the Macmillan Company of Toronto.”36
To bolster this claim that accusations of plagiarism were by no means unknown to Macmillan of Canada, Florence drew the court’s attention to a letter she had received from Dr. J.H. Putman, senior inspector of public schools in Ottawa and president of the Ontario Educational Association. Putman had written that by engaging in an act of plagiarism while employed by the Morang Company, John Saul had violated the copyright protection afforded to Putman’s book Britain and the Empire. After Morang was taken over by Macmillan of Canada, Putman said, he had threatened legal action. The Ottawa author and educator now confirmed that Macmillan had settled the claim, “by a payment of a considerable sum of money.”37
And what of the reputation of H.G. Wells? He had “repeatedly been embroiled in literary or social episodes that were far from creditable … It was said that he was ‘frozen out’ of the Fabian Club.” Early in his career, Florence declared, “he was accused of pirating a book entitled ‘A Plunge into Space,’ ” written by Robert Cromie, brother-in-law to a former English Ambassador to China. Induced to take action by his brother, a King’s Counsel in London during the Great War, Mr. Cromie had launched his lawsuit. In a letter to Florence written shortly after she had initiated her Toronto litigation in 1925, the late author’s niece, a Mrs. Eve, had drawn attention to the earlier charges involving Wells and her family. The case, she said, had been settled out of court.38
In what way, Florence concluded, was she a plaintiff who “was not in a condition of mind to judge fairly of the very serious charges she was bringing” against reputable, eminent, and respectable people? In what sense was her case an abuse of legal privilege? In which realm, she might have added – that of the plaintiff or of the defendants – did honesty and integrity lie?
The defence arguments had been brief, content on relying on the evidence and findings of the first trial. After the appeal, Hugh Eayrs reported as usual to Sir Frederick Macmillan. “Miss Deeks conducted her case,” he wrote, “explaining that she was too poor to brief counsel further, and she had a much more sympathetic hearing than she would have through counsel, these judges being kindly to an old woman in such circumstances.” A fortnight or so later, C.K. Ogden wrote to his friend H.G. Wells: “I’m so glad the Deeks woman is over. I think you should get costs. Someone in the family had a lot of money for she offered me a handsome fee to refute … I told her … she would do better to put £1,000 behind her own book & get it out & die happy. But she & her sister were an obstinate couple, like ex-school matrons from Ashby de la Louche.”39
Almost two months later, the Appellate Division announced its verdict: it dismissed her appeal, with costs taxed against her. Florence discovered this when she picked up the evening newspaper on the afternoon of August 26. Early the next day, she and Mabel travelled to Osgoode Hall to verify the newspaper report and to obtain the written judgments. When she read them she found that the learned judges had accepted fully the earlier conclusions of Mr. Justice Raney. They rejected as inconsequential and unconvincing the direct evidence of her case. “I am of opinion,” wrote Latchford, “that her appeal must fail. To hold the contrary is to accept as true her contention that the Macmillan Company of Canada parted at some time with the possession of the manuscript of ‘The Web.’ ”
There had been circumstantial evidence strong enough to suggest that this was at least a possibility. But could it even be countenanced, given the two sets of images that had sat in apposition from the very beginning of the controversy? From the outset, Florence Deeks had been the unknown woman, the frustrated spinster obsessed by a foolish cause, the amateur historian. And whom had she accused? A famous author, a man of the world, the greatest social prophet of the modern age. How could not only he, but also distinguished publishing houses, respectable publishers, and hard-working editors, have been involved in the scandalous behaviour Florence accused them of? It was as if the judges simply could not conceive the possibility.
Of the intrinsic evidence studied and presented by her experts, most of the judges had little to say. Masten wrote no opinion at all; he merely appended the word “agreed” to Latchford’s three modest paragraphs. Their only comments on the direct evidence were those of repudiation. The two authors had merely drawn on well-known figures and events. “There can be no copyright in the facts of history or in their chronological sequence,” Orde wrote. To Florence, it was obvious he had missed the entire point of the evidence presented by her experts.
Only Riddell, the lone historian among them, went further. He spent most of his lengthy opinion rebuking Professor Irwin and castigating his firm conclusions. “Perhaps the fact of the witness having graduated as recently as 1912,” the judge wrote, “may account for some of this – it certainly does not err in over modesty or want of certainty in his conclusions.” Then Riddell had fixed on a few isolated examples of correspondence – mainly those concerning Aspasia and Columbus – only to dismiss them with phrases such as “Can absurdity further go?” and “the utter worthlessness of this kind of evidence.” They were, he said, “almost an insult to common sense.” He dismissed outright the notion that any real commonalities existed, but he chose not to dwell on the matter. “So, too, without elaborating,” he wrote, “it seems to me that there is nothing in any way conclusive as proof in any or all of the alleged common inclusions, common omissions, common errors, etc.” As to the fact that Wells had written a great many words in very little time, the fact, said Riddell, was that “there are few, if any, Judges on our Bench who do not frequently reach and surpass that amount.”40
“It is greatly to the credit of Miss Deeks,” Latchford had written, “that her presentation in person of this appeal has been as full and effective as in the circumstances it could possibly have been argued by the most able counsel.” Florence took no satisfaction in such words. She had done no more than her duty. Had the learned judges done theirs? She thought not. Their words reflected only “unpardonable inefficiency or bias,” or both. In thus rendering such faulty judgment, she thought, they had deprived her “of all compensation for the enormous wrongs” thrust upon her “by rich and powerful defendants.” She resolved that her search for justice would not end here.41
Florence reflected carefully before she took her next step. Two options remained open: appeal to the Supreme Court of Canada in Ottawa, or appeal to the Judicial Committee of the Privy Council in London. The Canadian court had proven hostile to women only three years earlier, when its unanimous verdict declared that women did not exist as “persons” within the meaning of the law. But the Privy Council had overturned the judgment. Besides, Florence knew that if she lost an appeal to the Supreme Court, she would be barred by law from any appeal to the imperial council.
A woman of inherently idealistic disposition, Florence possessed a limitless faith, if a naive one, in certain abstractions. The power of love was one. The sanctity of “British justice” was another. As the highest court in the British Empire, the Privy Council was above reproach – “obligated,” she thought, “as it is by Act of Parliament to hear and to make a thorough investigation of every appeal brought before it, and invested as it is with unlimited power for discovering truth, and administering justice.” To the Privy Council she decided to go.
Hugh Eayrs found out about the decision of the appellate court from the newspapers the morning after it was released. “I hope this really sees the last of the ridiculous affair,” he reported to Sir Frederick Macmillan. A week later, he had less pleasant news to bear. He informed the senior George Brett that he had learned of Florence’s intention to appeal the second judgment to the Privy Council in London. “What mystifies us is where she can possibly be getting her funds from. We can only surmise that her brother’s widow and his family are supplying her … Surely idiocy could go no further than this new move. She is bound to be beaten again in London but the fact is the thing has become an obsession by now.” Meanwhile, he added, McLaughlin had applied for a sheriff’s order to collect the costs levelled against her.42
Informed of the likelihood that Florence would appeal to the Judicial Committee of the Privy Council, H.G. Wells responded with the words: “Can’t we get security for costs for the appeal?”43
While Florence pored over the second judicial decision, the defence on both sides of the Atlantic began in earnest to pursue the best means of recovering the costs from her. Fiske wrote to H.G. Wells (through his daughter-in-law, Mrs. G.P. Wells, who acted as his secretary) that “we must try and make it as onerous as possible for her in the way of securing the payment of the costs.” Eayrs informed McLaughlin that it would be a good idea, in calculating their expenses, to make them “as high as possible.” A few days later, the lawyer replied that he was doing just that. “As you know,” he wrote to his client, “we have checked up on the will of both Miss Deeks’ brother and her mother. Any interest that has been left to Miss Deeks is so tied up that it would not be exigible. My own idea would be that if we were to lodge an execution in the hands of the sheriff and later have Miss Deeks examined as a judgment creditor we could probably force her into a position where she would be glad to make some offer of settlement.”44
George P. Brett, Jr., fully agreed with this strategy. “I feel that the best way of keeping Miss Deeks from making an appeal to the Privy Council is by making it as hot for her as we can.”45
At this point, Florence again changed lawyers, turning now to D.L. McCarthy, formerly of the firm that had originally represented Wells and his English publishers. On learning of his opponent’s most recent moves, Hugh Eayrs could only shake his head. “We can get no trace of where she is getting her money from to continue at all,” he wrote to Sir Frederick Macmillan. “She doesn’t appear to have any funds which we can seize for costs, yet from somewhere she is able to find enough money to put up as necessary security for her next move.”46
It was like a high-stakes poker game. The defendants moved in whatever ways they could in order to recover expenses incurred by the original action, only to have Florence reply with an often unexpected counterattack of her own. At the end of October 1931, she again appeared before Mr. Justice Latchford, this time to argue for permission to appeal the Appellate Division’s decision to the Privy Council and to have the security deposit set at a total of $2,000. The defence argued in turn that this should be the amount for each of the defendants. Latchford sided with her. Somehow, most likely through continuing entreaties from the three sisters on Farnham Avenue to their sister-in-law on Admiral Road, Florence found the security.
Eayrs and McLaughlin fell back on the Toronto sheriff’s department for redress. Eayrs reported to George Brett, Jr., that through McLaughlin he had instructed the sheriff “to seize any money and effects of Miss Deeks’s on which he can lay his hands.” He was not optimistic. “It appears that she does not even own the house she is living in and that the slight income she has from her brother’s estate is safe-guarded in such a way that we cannot get our hands on it.”47
A month later, Eayrs received a confidential letter from Graham Spry in Ottawa. Spry, at the time, was national secretary of the Association of Canadian Clubs. He knew a little about the Deeks suit, and thought Eayrs would want to know that “a collection is being made here among very wealthy people” on behalf of the woman’s cause. A few of these people had come to Spry for more specific information, and he now asked Eayrs for details. The Macmillan president conferred with McLaughlin, and an exchange of letters with Spry followed. Eayrs provided him with copies of the judicial decisions. The claim of the Deeks woman, he said, was “simply wild from beginning to end.” Supporting it would be a waste of people’s money.48 Spry’s subsequent actions remain unknown.
By February 1932, with the appeal to the Privy Council now imminent, McLaughlin and Eayrs had given up hope of inflating their expenses in order to thwart the determined Miss Deeks. In fact, the Taxing Master had reduced the costs charged against her. Nor had the sheriff of Toronto met with success, for he had advised McLaughlin that he had been unable to determine whether she possessed “any goods or chattels” whatsoever. His return on the request had been “Nulla Bona.” The simple facts were, as far as the sheriff could establish, that the woman lived in a house she did not own, and that her sole source of income was $50 monthly from the deceased brother’s estate. She had admitted to receiving “gifts” from people, but had refused to indicate from whom they had come.49
Eayrs and McLaughlin weighed the merits of applying to have Florence Deeks declared bankrupt. McLaughlin recognized that such a case might be rejected; it would be all too apparent, he warned, that the defendants were doing so solely to prevent her from proceeding with an appeal. The sympathy of the courts would no doubt be with her. Eayrs rejected McLaughlin’s advice and proceeded with the action, but a Toronto judge dismissed the Macmillan of Canada petition and levied costs against it. The next step, as McLaughlin wrote to Eayrs, would be to take “some steps to obtain a receivership for the annuity that she receives from her brother’s estate.”50
At the same time, lawyers for Wells informed him that Deeks had been seeking financial support from “some persons in England and Montreal.” Did Mr. Wells, Sanders Fiske asked, have any idea who in England might “do such a thing”?51 He did not receive a reply.