# Appendix — A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Massachusetts

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1966
- **Citation:** 383 U.S. 413

## Text

—

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1965

No. 368

A BOOK NAMED “JOHN CLELAND’S MEMOIRS OF
A WOMAN OF PLEASURE”, G. P. PUTNAM’S SONS
(INTERVENOR), APPELLANTS,

Vs.

ATTORNEY GENERAL OF THE COMMONWEALTH
OF MASSACHUSETTS.

APPEAL FROM THE SUPREME JUDICIAL COURT OF MASSACHUSETTS

INDEX
Original Print

Record from the Superior Court, within and for the
County of Suffolk, Commonwealth of Massachu-
setts, No. 82126 Eq.

Petition 1 1
Opinion, Hudson, J. that there is reasonable cause
| to believe that a book, ete. 2 2
| Order of notice directed against a book ete., re-
turuable Marek 19, 1964 3 3
Motion of the Attorney General for an inter-
es locutory finding and adjudication and allowed 5 5
| Interlocutory finding and adjudication —___. 6 5
Answer of G. P. Putnam’s Sons, Intervenor 6 6
Request for report of evidence and designation
of stenographer and allowed —.-___________. 8 7

|
ReEcorD PrREss, PRINTERS, NEW York, N. Y., NOVEMBER 12, 1965

INDEX

Original Print
Record from the Superior Court, within and for the
County of Suffolk, Commonwealth of Massachu-
setts, No. 82126 Eq.—Continued
Transcript of testimony, May 27, 1964 10 8
Appearances 10 8
Colloquy between court and counsel re Exhibit
A ll 8
Testimony of John E. Collins—
direct 13 10
cross 19 15

Offer of Proof—Exhibit 1—Photostatic copy

of Page 2, The New York Times Book Re-

view, July 28, 1963, containing column en-

titled, “Speaking of Books,” by J. Donald

Adams __.. 28 24
Offer of Proof—Exhibit 2—Article entitled,

“The MHarlot’s Progress,” by V. S.

Pritcheti, from October 31, 1963 edition ‘

of The New York Review of Books -._. 31 27
Offer of Proof—Exhibit 3—Article entitled,

“Mersey Sound, 1750,” by Brigid Brophy,

from November 15, 1963 issue of “New

Statesman”, page 710 36 33
Offer of Proof—Exhibit 4—Item bearing

sub-heading “Taste” under the heading

“Modern Living’ from August 2, 1963

issue of TIME Magazine 41 38
Petitioner rests 44 40
Testimony of Fred Holly Stocking—

direct 45 41

cross 48 44

redirect 58 52
John M. Bullitt—

direct 59 53

cross 64 57

redirect 69 62

recross

INDEX

Record from the Superior Court, within and for the
County of Suffolk, Commonwealth of Massachu-
setts, No. 82126 Eq.—Continued
Transcript of testimony, May 27, 1964—Continued

Testimony of Robert H. Sproat—
direct
cross
redirect
Norman N. Holland—
direct
cross
redirect
Colloquy between court and counsel re exhibits
Testimony of Walter Minton—
di ‘ect
Ira Konigsberg—
direct
cross
Argument by Mr. Rembar oan
Argument by Mr. Sullivan —
Stenographer’s certificate (omitted in printing)
Findings of fact, ruling of law and order for
final decree
Final decree
Claim of appeal of intervener, ee Putnam’s
Sons
Certificate and order of Trial Judge as to ex-
hibits under Rule 6

Proceedings in the Supreme Judicial Court for the
Commonwealth of Massachusetts #86543

Opinion, Spalding, J.

Opinion, dissenting, Whittemore, J.

Opinion, dissenting, Cutter, J. ss

ee —aeeee .

Docket entries

Original Print
69 63
73 66
76 69
77 70
81 74
84 77
85 78
90 82
92 84
102 93

103 94
107 98
109 100
110 100
124 117
125 118
126. 118
129 120
129 120
141 125
147 127
155 130
159 131

+ ee athe Aa

iv INDEX
Original Print ;
Record from the Superior Court, within and for the
County of Suffolk, Commonwealth of Massachu-
setts, No. 82126 Eq. 161 132
Final decree after rescript 161 132
Docket entries 167 133
Notice of appeal to the Supreme Court of the
United States by G. P. Putnam’s Sons, Inter-
venor 173 137
Judge’s certificate and Clerk’s certificate thereto
(omitted in printing) 185 140
Clerk’s certificate (omitted in printing) 187 140

Order noting probable jurisdiction 188 141

a

(fol. 1]
IN THE SUPERIOR COURT WITHIN AND

FOR THE COUNTY OF SUFFOLK,
COMMONWEALTH OF MASSACHUSETTS

No. 82126 Eq.

Epwarp W. Brooxe, Attorney General,
v.

A Boox Namen, “JoHN CLELAND’s Memorrs oF A WoMAN OF
PieasuRE” (ComMonLy Known as Fanny Huu).

Petition—Filed February 10, 1964

Respectfully represents your petitioner, Edward W.
Brooke, of Newton, in the County of Middlesex, and Com-
monwealth of Massachusetts, that he is the Attorney Gen-
eral of Massachusetts; that there is reasonable cause to
believe that a book named “John Cleland’s Memoirs of a
Woman of Pleasure” (commonly known as Fanny Hill)
is being imported, sold, loaned, or distributed in the Com-
monwealth; and that said book is obscene, indecent and
impure ; that the name of the publisher and copyright holder
of said book is G.P. Putnam’s Sons of the City of New
York, and the author is John Cleland.

Wherefore, your petitioner prays

1. that an order of notice issue directed against said book
named “John Cleland’s Memoirs of a Woman of Pleasure”
(commonly known as Fanny Hill) and of all persons in-
terested in the publication, sale, loan, or distribution thereof,
[fol. 2] and to the publisher, copyright holder and author
thereof as required by law to show cause why said book
should not be judicially determined to be obscene, indecent
and impure.

3 &

2. that this Honorable Court make an interlocutory
finding and adjudicate that said book is obscene, indecent
and impure.

s

3. that this Honorable Court enter a final decree ad-
judging said book to be obscene, indecent and impure.

4, for such other and further relief as appears mete and
just in the premises.

Edward W. Brooke, Attorney General, By: Walter
Jay Skinner, Assistant Attorney General.

Oprnion oF Justice oF Superior Court Tuat Tuere Is
REASONABLE CausE TO BeELievE THat a Book Namep
“JoHN CLELAND’s Memoirs oF 4 WoMAN OF PLEASURE”
(Commonty Known as Fanny Hutz), Is Opnsceng, In-
DECENT AND IMPURE AND ORDER FOR ISSUANCE OF ORDER OF
Notice—Entered February 10, 1964

Upon the filing of the Petition of Honorable Edward W.
Brooke, Attorney General of the said Commonwealth ad-
judicating that the book named “John Cleland’s Memoirs
of a Woman of Pleasure” (commonly known as Fanny Hill),
which Petition is incorporated herein by reference, I,
Eugene A. Hudson, a Justice of the Superior Court of said
Commonwealth, in accordance with the provisions of Gen-
eral Laws, Chapter 272, Section 28C as amended, examining
[fol. 3] said book (marked “A”) by reading and studying
its entire contents and I am of the opinion that there is
a reasonable cause to believe that such book is obscene,
indecent and impure, therefore, it is Ordered that an Order
of Notice issue returnable on Thursday, March 19, 1964,
directed against said book named “John Cleland’s Memoirs
of a Woman of Pleasure” (commonly known as Fanny Hill),
and addressed to all persons interested in the publication,
sale, loan or distribution thereof, to show cause why said
book should not be judicially determined to be obscene,
indecent or impure.

7

3

Said Order of Notice should be given by publication once
each week for three (3) successive weeks in a daily news-
paper, published in the City of Boston, and a copy of said
Order of Notice shall be sent by Registered Mail to the
Publisher and copyright holder of said book whose name
appears on said book as G. P. Putnam’s Sons of the City
of New York, fourteen days at least before said return
day of the Order of Notice.

Eugene A. Hudson, Justice of the Superior Court.

Orper or Notice Drrectep Acarinst A Book Namep “JoHN
CLELAND’s Memoirs oF A WoMAN OF PLEASURE” (Com-
MONLY Known as Fanny Hitt)—Entered February 10,
1964

To All Persons Interested in the Publication, Sale, Loan
or Distribution of a Book Named, “JoHn CLELAND’s Mem-
orrs oF A WomaN or PLEAsuRE” (commonly known as Fanny
Hill):

Whereas a Petition in Equity has been begun in our

Superior Court for the County of Suffolk reading as fol-
lows:

[fol. 4j “PETITION

Respectfully represents your petitioner, Edward W.
Brooke, of Newton, in the County of Middlesex, and
Commonwealth of Massachusetts, that he is the At-
torney General of Massachusetts; that there is reason-
able cause to believe that a book named “John Cleland’s
Memoirs of a Woman of Pleasure” (commonly known
as Fanny Hill) and marked Ex. A is being imported,
sold, loaned, or distributed in the Commonwealth; and
that said book is obscer.2, indecent and impure; that
the name of the publisher and copyright holder of said
book is G. P. Putnam’s Sons of the City of New York,
and the author is John Cleland.

Wherefore, your petitioner prays

1. that an order of notice issue directed against said
book named “John Cleland’s Memoirs of a Woman of
Pleasure” (commonly known as Fanny Hill) and of all
persons interested in the publication, sale, loan or dis-
tribution thereof, and to the publisher, copyright holder
and author thereof as required by law to show cause
why said book should not be judicially determined to be
obscene, indecent and impure.

2. that this Euiorable Court make an interlocutory
finding and adjudicate that said book is obscene, inde-
cent and impure.

3. that this Honorable Court enter a final decree
adjudging said book to be obscene, indecent and impure.

4. for such other and further relief as appears meet
and just in the premises.

Epwarp W. Brooke
Attorney General

By: Watter Jay SKINNER
Wa ter Jay SKINNER
Assistant Attorney General”

And on February 10, 1964, Hon. Eugene A. Hudson, a
Justice of the Superior Court filed a statement, as appears
[fol. 5] in the files of said case, that he had examined said
book as required by G. L. Chapter 272, s. 28C and was of
opinion that there is reasonable cause to believe that said
book is obscene, indecent or impure: And ordered the issu-
ance of this order of notice.

Now therefore, We Command You that on the nineteenth
day of March, 1964, which day is the return day of this
order of notice, you appear and show cause, if any you have,
why said book should not be judicially determined to be
obscene, indecent or impure.

Hereof fail not, at your peril, as otherwise said petition
may be adjudged and orders and decrees entered in your
absence.

5

And it is ordered that the petitioner shall serve this
notice by the publication thereof once each week for three
successive weeks in a daily newspaper, published in the
City of Boston, and by sending by registered mail a copy
thereof to the Publisher and copyright holder of said book
whose name appears on said book as G. P. Putnam’s Sons
of the City of New York, fourteen days at least before said
return day of the Order of Notice.

By the Court, (Hudson, J.), Francis P. Concannon,
Assistant Clerk.

Motion or ATTORNEY GENERAL FOR AN INTERLOCUTORY
FinpING AND —ADJUDICATION

Now comes Edward W. Brooke, Attorney General of the
Commonwealth of Massachusetts, and moves that this Hon-
orable Court make an interlocutory finding and adjudication
that said book “John Cleland’s Memoirs of a Woman of
Pleasure” (commonly known as Fanny Hill) is obscene,
indecent and impure.

Edward W. Brooke, Attorney General, By: Walter
Jay Skinner, Assistant Attorney General.

February 10, 1964, Filed and allowed. (Hudson, J.)

[fol. 6]
INTERLOCUTORY FINDING aNnD ADJUDICATION—
Entered February 10, 1964

This cause came on to be heard at this sitting upon the
Motion of the Attorney General, and after issuance of an
Order of Notice, in accordance with the provisions of G. L.
Ch. 272, Section 28C as amended by Chap. 278 Section 1 of
Acts of 1945, and after hearing thereon the Court makes an
Interlocutory Finding and Adjudication that the book,
“John Cleland’s Memoirs of a Woman of Pleasure” (Com-
monly known as Fanny Hill), (marked Ex. A) is obscene,
indecent and impure.

By the Court, (Hudson, J.), Francis P. Concannon,
Assistant Clerk.

Answer or G. P. Putnam’s Sons, INTERVENER—
Filed March 19, 1964

Now comes G. P. Putnam’s Sons, a New York corpora-
tion, hereinafter referred to as the intervener, and answers
the petition in this case as follows:

1. The intervener admits that Edward W. Brooke is the
Attorney General of Massachusetts, that the book against
which this proceeding is brought was on or about the date
of the filing of this petition imported, sold and distributed
in the Commonwealth, that the intervener is the publisher
and holder of the copyright of said book, and (further an-
swering) that it is interested in the sale, loan or distribution
of said book, and that John Cleland is the author of said
book.

2. The intervener denies that said book is obscene, in-
decent or impure, and further answering says that:

A. The sale and distribution of said book is protected
by the First Amendment to the United States Constitution
as applied to the States by the Fourteenth Amendment;
[fol. 7] and the application of G.L. Chapter 272, Sections
28 C-H, if it results in an adjudication that said book is
obscene, indecent or impure, is unconstitutional under the
First and Fourteenth Amendments to United States Con-
stitution. An adjudication, the effect of which would be to
impede or prevent the sale or distribution of said book,
would be an unconstitutional deprivation of rights guaran-
teed to the intervener by the said First and Fourteenth
Amendments to the United States Constitution.

B. An actual controversy exists between the Attorney
General and the intervener because the Attorney General
intends to suppress the sale and distribution of said book,
and such suppression will result in less and damage to the
intervener and its customers. The adjudication which the
Attorney General seeks will impede and prevent the sale
and distribution of said book, and the interlocutory ad-
judication heretofore made in these proceedings has al-
ready had this effect. Such adjudication and the interlocu-

7

tory adjudication heretofore made will result, and such
interlocutory adjudication has already resulted, in loss and
damage to the intervener and its customers.

Wherefore, the intervener prays that this Court

1. Adjudicate, pursuant to G.L. Chapter 272, Sections 28
C-H, that the book against which this proceeding is brought
is not obscene, indecent or impure.

2. Enter a decree, pursuant to Chapter 231A of the
General Laws, declaring that the sale and distribution of
said book is protected by the First Amendment to the
United States Constitution as applied to the States by the
Fourteenth Amendment; that the application by the Attor-
ney General of G.L. Chapter 272, Sections 28 C-H, if it
results in an adjudication that said book is obscene, inde-
cent or impure, or any other attempt by the Attorney Gen-
eral to suppress the sale or distribution of said book, is
unconstitutional under the First and Fourteenth Amend-
ments to the United States Constitution; and that any ad-
judication, the effect of which would be +o impede or prevent
the sale or distribution of said book, would be an uncon-
stitutional deprivation of rights guaranteed to the inter-
vener by the First and Fourteenth Amendments to the
United States Constitution.

[fol.8] 3. Grant such other and further relief to the in-
tervener as may be appropriate.

G. P. Putnam’s Sons, By its attorneys, Reuben Good-
man, Charles Rembar.

Attest: Francis P. Concannon, Ass’t. Clerk.

Request FOR Report oF EvmimeNcE AND DESIGNATION OF
STENOGRAPHER—May 27, 1964, Filed and Allowed by
the Court. (Macaulay, J.)

Now comes G. P. Putnam’s Sons Intervener and requests
that the evidence in the above-entitled case be reported to
the full court of the Supreme Judicial Court and that a

8

stenographer be designated and sworn by this Honorable
Court for such purpose.

By its attorneys, Reuben Goodman, Charles Rembar.
Attest: Albert F. Henneberry, Ass’t. Clerk.

[fol.9] In the above entitled case, at the hearing of the
same it is ordered by the presiding justice (Macaulay, J.)
that Mary H. Kevill be, and she hereby is, designated to
report the testimony in said case, to the Supreme Judicial
Court.

Attest: Albert F. Henneberry, Asst. Clerk.
May 27, 1964.

[fol. 10]
Transcript of Testimony—May 27, 1964

APPEARANCES:
John E. Sullivan, Esq., Assistant Attorney General, for
the petitioner ;

Charles Rembar, Esq., and Reuben Goodman, Esq., for
the intervener, G. P. Putnam Publishing Company.

[fo]. 11]
CoLLoquy Between Court aNnp CounseEL Re Ejxursit A

The Cour.: At the opening of the case, there was a bench
conferen“e, at which time Mr. Charles Rembar of New York
was given leave to try the case in behalf of the intervener,
and he has filed his appearance.

Mr. Goodman: May the stenographer be appointed com-
missioner to take testimony?

The Court: The request for a commissioner is granted
and the stenographer is authorized to take testimony.

Mr. Goodman: I have drafted an order that she be ap-
pointed to taxe testimony.

The Court: I aon’t think it is necessary.

Mr. Sullivan: Tnere is a stipulation of counsel that this
is the same book tliat was in issue before Judge Hudson.

CT Te ee

- ~

—— gt ee

The Court: Why can’t that book go in as Exhibit A?

Mr. Rembar: No reason why it shouldn’t.

The Court: Do you want to see if it is the right one?

Mr. Goodman: The hard cover and paperback are iden-
tical. They both have the same introduction.

The Court: That couldn’t be because in the foreword of
this book here, it gives some history about New York liti-
gation after the hard cover book came out.

Mr. Rembar: What I meant was that everything that is
in the hard cover is in here, and this has the additional
comment. '

The Court: That may be marked Exhibit A.

[fol.12] (Paperback book entitled, “Fanny Hill, John
Cleland’s Memoirs of a Woman of Pleasure,” is marked
Exhibit A.)

Mr. Rembar: Some of my witnesses have been reading
this edition and some have been reading the hard cover.
Will the references be the same?

Mr. Sullivan: I have never seen the hard cover book,
so I can only assume and take your statement that it is,
except for the introduction, the same book.

Mr. Goodman: It is, Mr. Sullivan.

Mr. Sullivan: On that condition, that it is the same book,
saving the introduction, I will not object on that ground.

Mr. Rembar: Saving the introduction which deals with
the New York litigation. The Peter Quennell introduction
is in both books.

Mr. Goodman: Would you like us to submit a copy of
the hard cover?

The Court: I don’t try cases. I would merely like to
observe, however, that I have read fully the brief that was
submitted last night, and I did read a passage in there
wherein the intervener asks that the whole book, including
the foreword and this Mr. Quennell’s comment, be consid-
ered in determining the issues in this case.

Mr. Rembar: Yes, we do ask that, your Honor, and, so
far as that is concerned, the hard cover and the paperback
are identical. This is the book in evidence.

10

The Court: With the exception of this history of the
New York litigation?
Mr. Rembar: Yes, sir.

[fol.13] Jouwn E. Cotiins, Sworn.

a

By Mr. Sullivan:

Would #6u give the Court your full name, please?
. John E. Collins.

Your residential address?

. 157 Stratford Street, West Roxbury.

How are you presently engaged, Dr. Collins?

. Iam Headmaster of the Newman Preparatory School.
How long have you served in that capacity?

. Four months.

. Would you give the Court your educational back-
ground, starting from the secondary school?

A. I graduated from Boston College in 1925 with a B.A.
degree. I have a Master of Arts degree from Boston Uni-
versity, 1926. I have a Doctor of Philosophy degree from
Boston College, 1936. I did graduate work at Harvard and
at Oxford.

Q. How have you been employed since the completion
of your education or during your education?

A. I was a classroom teacher at the Boston Latin School
for twenty-two years. I was head of the English Depart-
ment at the State College at Boston for sixteen years, as
well as dean, academic dean and dean of the graduate
school, until February Ist of this year, when I came to
Newman Preparatory School. My area is English litera-
ture.

Q. In connection with your profession, have you lec-
tured?

A. That has been my life.

Q. Prepared articles?

A. Yes.

OPOpopopo

11

Q. Contributed articles?

A. Yes.

Q. Have you read the book commonly called “Fanny
Hill”?

A. Yes, sir.
{fol.14] Q. In your opinion, is this book obscene, Doctor?

Mr. Rembar: If I may, your Honor, I object to that
question. It calls for a conclusion of law. It deals with
the ultimate determination that this Court must make, and
it is not the subject of testimony.

The Court: You don’t object as to his qualifications?

Mr. Rembar: I don’t know what he has been qualified
for, your Honor. I object to his qualifications insofar as
they may be thought to make him an expert on matters of
law.

The Court: What do you offer him for?

Mr. Sullivan: For his literary expert opinion. I have
no basis of this gentleman knowing the law.

Mr. Rembar: The last question, it seems to me, is not
a question which deals with the literary merits, or lack of
merit, in this book. The word “obscene”, as your Honor
knows, is a legal concept, a constitutional concept. The
opinions of the United States Supreme Court and the opin-
ion of the Supreme Judicial Court of this state in the
Tropic of Cancer case have made that very clear.

The Court: I can recognize that the legal concept of
what obscene means is one thing; however, a concept of
what obscene means in literature has some bearing on de-
termining what the legal concept of obscene means.

I will allow him to answer.

Mr. Rembar: May I have an exception, your Honor?

The Court: Exception noted.

Q. I will repeat the question, Doctor. In your opinion,
is the book commonly known as “Fanny Hill” obscene?

A. Yes.
[fol.15] Q. In your opinion, is the book indecent?

A. Yes.

12

Mr. Rembar: I make the same objection to that question,
your Honor.

The Court: I take it as a motion to strike the answer.
The motion to strike is denied and your exception to it is
noted.

Mr. Rembar: Thank you.

Q. In your opinion, is the book impure, Doctor?

Mr. Rembar: Same objection, your Honor.
The Court: Objection denied.

Mr. Rembar: Exception.

The Court: Exception noted.

Q. You may answer the question.

A. Yes.

Q. Do you have an opinion whether or not this publica-
tion appeals to prurient interest?

Mr. Rembar: Same objection, your Honor.

The Court: Objection denied.

Mr. Rembar: Exception.

The Court: You don’t object to that, does he have an
opinion? -

Mr. Sullivan: I am only asking whether he has an
opinion.

The Court: That would be just Yes or No, whether he
has an opinion.

Mr. Rembar: That’s correct.

{fol.16] The Court: You may answer. Do you have an
opinion?

Q. You may answer if you have an opinion.

A. You are asking me the difference between good and
bad?

Q. I am asking you whether or not this publication would
arouse prurient interest in a person or persons who read
it?

Mr. Rembar: This is not “Have you an opinion?”

The Court: That is a different question than the one
you asked before. The question before was, “Do you have
an opinion whether this book has prurient interest,” pru-

13

rient character, or something like that. That can be an-
swered Yes or No. Has he an opinion?

Q. Do you have an opinion?

A. Yes.

Q. In the light of the fact that you do have an opinion,
would you kindly state to the Court your opinion on
whether or not this publication would arouse prurient in-
terest in a reader or readers of this book?

Mr. Rembar: Objection, your Honor.
The Court: Objection denied.

Mr. Rembar: Exception.

The Court: Exception noted.

A. My subjective opinion, unconditionally, yes.
Q. You have recited that you have been in the literary
field for some twenty-two years, Doctor?
A. More than that.
Q. More than that. Do you have an opinion whether or
not this book has any literary merit?
A. I have an opinion.
Q. Would you give the Court that opinion?
A. It lacks literary merit.
[fol.17] Q. Do you have an opinion whether or not this
| publication has any social importance?
) A. I would have to make a speech to answer that.
Q. Well, first of all, Yes or No?
| A. Yes, I have an opinion.
| Q. What is that opinion, Doctor?
. A. Well, when I read the book, I attempted to judge it
merely from the point of view of a human document, some-
what like “Nana” or “Sister Carrie”, but I couldn’t find
that it had any social significance nor any literary style
| that might lift it up beyond pornography.
Q. You said the word “pornography”?
A. Yes, sir.
Q. Do you have an opinion whether or not this book is
pornographic?
A. Yes.

14

Q. What is that opinion, Doctor?
A. It is pornographic.

Mr. Rembar: I object to that, your Honor.
The Court: Objection denied.

Mr. Rembar: Same reason. Exception.
The Court: Exception noted.

Q. Are you familiar with the phrase, “hard core pornog-
raphy”?

A. To a degree.

Q. To the degree that you are familiar with the phrase,
would you classify this publication within hard core por-
nography?

Mr. Rembar: Same objection, your Honor.
A. In my opinion,—

The Court: Just a moment.

Of course, that term “hard core pornography” you took
out of the decision of the Supreme Judicial Court.
[fol.18] Mr. Rembar: By the same token, your Honor,
the term “a prurient interest” is taken out of the Supreme
Court decision.

The Court: “Prurient” is a word of many years’, hun-
dreds of years’, usage. I will allow him to answer.

Exception noted.

The Witness: May I have the question again?

Q. The question is, in view of your familiarity within
certain bounds of the term “hard core pornography,” is
this book in your opinion within the bounds of your un-
derstanding of that phrase?

A. Yes.

Q. Did you find the book offensive, Doctor?

A. Yes.

Q. Would you go so far as to say you found the book
patently offensive?

Mr. Rembar: I object to that question, your Honor.
Th re again, there is a precise legal formula developed

— — ee

a oe eee

15

by the United States Supreme Court to express a legal
conclusion, in the case of Manual Enterprises.

The Court: I know, but aside from the legal definition
of “patently offensive”, it might be a literary definition
of it, or understanding. In that sense, I think the question
is admissible.

I will allow it.

Mr. Rembar: Exception.

The Court: Exception noted.

Q. You may answer the question.
A. Yes,

Mr. Sullivan: Your witness, gentlemen.
[fol. 19] Cross examination.

By Mr. Rembar:

Q. Is it “Doctor”?

A. Yes.

Q. Dr. Connors?

A. Collins.

Q. Doctor, could you tell me what the Newman school
is? I am a stranger here.

A. It is a preparatory school for boys.

Q. Is it denominational?

A. It is run by Catholic laymen.

Mr. Sullivan: I object and ask the answer be stricken.
The Court: Objection denied.

Q. If I heard you correctly, you said you had been Head-
master for a matter of four months?

A. Correct.

Q. Do you teach at the school?

A. No, sir.

Q. Had you been a teacher before you became Head-
master?

A. Where?

Q. Anywhere.

A. Yes.

16

Q. What courses did you teach?

A. Well, the English novel; comparative study of the
novel; contemporary novel; three courses in Shakespeare;
a course in biography—do you want a list of them all?
I could go on forever if you want. I have been around a
long time.

Q. Are you familiar with the English novels of the 18th
century?

A. Yes, sir.

Q. Which of the 18th century novelists do you rate
highest?

A. I don’t rate any of them highest. I could give you
five or ten names. I refuse to put one as supreme above
twenty others.

Q. Would you name two or three that you regard as
outstanding?

‘A. Richardson, Fielding, Jane Austen, Defoe, if you
[fol. 20] want to call him a novelist—I presume that’s where
you are building, anyway; and Smollett and Sterne, Edge-
worth Fanny Burning. Go ahead.

Q. You testified in answer to a question put over my
objection that you regard the book which is in issue here
as appealing to prurient interest?

A. That’s correct, sir.

Q. What do you understand by the word “prurient”?

A. Do you want to try Webster?

Q. I want to know what you had in mind when you an-
swered the question.

A. Well, I can start with the word “dirty”. I ean go
on with the word “sexual”; I can go on with “esoteric”.
Q. Esoteric?

A. Yes. I can add “erotic”, in other words, for the pur-
pose of stimulating sexual reactions.

Q. So that if a book could be described as erotic, you
would also describe it as prurient?

A. Those words are not synonyms in every case. They
may be and they may not be; you have to have a particular
incident and a particular case.

aa —_

|

17

Q. Well, could you give me an example of a book that
you would regard as predominantly erotic that you would
not regard as predominantly prurient?

A. Why, yes. Zola’s “Nana”.

Q. That book is erotic in the sense that it stimulates a
sexual response in the reader, is that what you mean?

A. To a degree, but it has other literary merit. It lifts
it up above and beyond the word “prurient”.

Q. I see.

A. It is a human document.

Q. Correct me if Iam wrong. As I understand what you
are saying now, it is that there are books that are erotic
in the sense that—

A. Well, now, yes. Certain parts of “The Arabian
Nights”, for example, may be.

[fol. 21] Q. Certain parts of the Bible?

A. Yes, there are many cases where the words—

Q. The answer was Yes to that?

A. I don’t know what the question was.

Q. I said, certain parts of the Bible.

A. Yes. That’s an oldie.

Q. But nevertheless true. Well, let me put my question
to you again because I am just trying—

A. You are trying to distinguish between the two words,
correct?

The Court: Just let him ask the question and you answer
it.

Q. I want to know if I am correct in summarizing what
you have been saying just now as follows: that there are
certain books which you would deem ervtic because they
stimulate a sexual response in the reader, but which you
would not call prurient because they have certain literary
merits or literary values?

A. Well, I wouldn’t condemn the whole book as erotic.
I say there may be passages and parts in it which may be
that.

Q. You know you have to consider the book as a whole,
so let’s say that there is a book that has these passages and

18

parts which stimulate this sexual response in the reader,
but the book also has some literary merit. How do you
designate that book?

A. Masterpiece.

Q. You also answered affirmatively to the question
whether the book in issue is obscene. How do you define
that word?

A. Disgusting.

Q. Obscene equals disgusting?

A. I will go along with that for a while. Go ahead.

Q. You say for a while you will go along with that?

A. Well, if you start refining it, I will have to start re-
fining.

Q. Don’t you think we ought to refine these terms? After
all, the publication of a book is at stake here.

A. Yes, I understand.

[fol.22] Q. There are books, of course, and I think you
would agree with this—at least I want to know whether you
do—that don’t treat of sex at all, but which the reader
might find repellent or, in your word, disgusting?

Mr. Sullivan: Objection, your Honor.
Mr. Rembar: I am asking if he agrees with this.
Mr. Sullivan: Is this a question?

A. I think the question is a little obscure.

Mr. Sullivan: Is this a narrative or is this an interroga-
tion?

The Witness: I don’t understand him.

The Court: I think you better rephrase the question,
please.

Q. Do you know of any books that do not deal with sexual
subject matter that you could call disgusting?

A. Offhand, I wouldn’t say so, no. I don’t think that point
is at issue, but go ahead.

Q. The judge will decide what points are at issue, but as
of now you say that the word disgusting is confined to books
that deal with sexual subject matter?

A. For the time being, yes.

Q. And those books you would call obscene?

A. Yes.

19

Q. Another question to which you answered affirmatively
was whether the book at issue is indecent, and I would ask
you again what you mean by that word?

A. Well, I would say that it was contrary to public mores,
to the customs of the people and the common standards
of a given time and a given place.

Q. Tom Paine’s “Common Sense”, would that fit your
definition ?

A. I don’t think so.

[fol. 23] Q. Another term that was used on direct ex-
amination was the term “patently offensive”, and you said
that this book is patently offensive. Does that have any
different meaning from these other words we have been
discussing?

A. Well, I believe patently means open, doesn’t it?

Q. It means “on the face of it”, I think, yes.

A. Offensive—it is merely another way of picturing the
same thing. You said that is in a Supreme Court phrase.

Q. In your opinion, is Henry Miller’s “Tropic of Cancer”
patently offensive?

. You.
Is it indecent?
Yes.
Does it appeal to prurient interest?
Yes.
Is it obscene?
Yes.
When did you read the book in issue last, Dr. Collins?
. Last night, first and last.
. Could you give me a brief recapitulation of the story
in the book?

A. Well, I don’t see how I could without being patently
offensive.

Q. You are in a court of law, Dr. Collins. I am sure you
will be excused.

A. Well, autobiography of a girl that comes from the
country up to London and gets herself into a brothel and
goes through the various adventures of, first of all, Les-

OPOPOPOPOD

tae

20

bianism, and with detailed descriptions of sexual actions.
That’s about all I could find in the book.

Q. Does she ever get out of the brothel?

A. Well, I should say no, she doesn’t get out of the
problem, no.

Q. Out of the brothel, I said.

A. Oh, yes.

Q. She does. How?

A. Well, originally, she is taken out by one of her cus-
tomers.
[fol. 24] Q. And what happens then?

A. Well, it goes on the same—

Q. It is not the same. She is out of the brothel now.
What does she do? ;

A. Well, she rides in a coach and so forth and she has
various adventures.

Q. Do you recall who it is with whom the heroine has
her first sexual encounter?

A. I believe the lady’s name is Phoebe, in the very first
chapter, as I remember it.

Q. Do you recall at this time that the heroine, correct
me if I am wrong, is a very young girl as you said before?

A. Fifteen.

Q. Fifteen. Does she comment on this experience later?

A. She comments on it. One time later she was very
grateful to that girl for introducing her to this situation.
That’s in the early part of the book.

Q. Can you point that out in the book?

A. I haven’t got it annotated. I would have to go through
the whole book to go after this.

Q. Well, the Court will read the book. It won’t be neces-
sary.

A. All right.

The Court: I read the book. Page 16.

The Witness: I took no notes.

Mr. Rembar: Page 16, your Honor, is the page on which
the incident occurs. I was asking for a reference support-
ing Dr. Collins’ statement that she is very grateful to this

21

woman who has taken advantage of her youth. That was
the question. I will leave it to your Honor’s further ex-
amination.

The Court: I recall something; I can’t give you the page.

Q. Do you recall, Dr. Collins, that the heroine, thinking
back on this incident, refers to it as foolery and resolves to
[fol. 25] have no more such experiences in her life?

A. I remember something like that. I don’t remember—
I couldn’t quote it.

Q. How about her first sexual experience with a man?
With whom does that take place?

A. Well, some old rake. I don’t know whether his name
is even in there.

Q. An old rake, you say?

‘A. An old rake who had—it was not completed, as I re-
member, on her part.

Q. With whom does she first actually have sexual inter-
course?

A. Now, let’s see. It was with this young man who
rescued her, as it were, from the brothel.

Q. Do you remember his name?

A. No, I don’t.

Q. You read the book last night, though?

A. Yes.

Q. Does the book end with Fanny Hill married or un-
married? :

A. She was married.

Q. To whom?

A. Idon’t remember now.

Q. You don’t remember?

A. No, not now. I didn’t take notes on it.

Q. It didn’t impress you, did it, that the man who is her
husband at the end of this book is the same young man
with whom she had her first sexual experience?

A. Wait a minute. You lost me on that. I think you are
right, and that that was supposed to be the moral in it.

Q. The moral in it is considerably more complicated than
that.

* 22

The Court: Just a moment. Is that a statement, or what
is it?

Mr. Rembar: I will withdraw that, your Honor.

The Witness: I tried to find—
[fol. 26] The Court: Just a moment. It was not a ques-
tion.

Q. You are familiar, are you, Dr. Collins, with The New
. York Sunday Times Book Review section?

A. Yes.

Q. Do you recall that on Page 2 there is generally a
column by J. Donald Adams?

js. ae

Q. I would like to ask you whether you agree with this
statement by Mr. Adams.

Mr. Sullivan: Objection, your Honor.

Mr. Rembar: I think, your Honor, it is proper cross-
examination where a man has given opinion testimony to
ask whether he agrees with a published opinion on the same
subject.

The Court: It is hearsay, isn’t it?

Mr. Rembar: I am merely asking him whether he agrees,
besides which, the Supreme Judicial Court, in the Tropic of
Cancer case, considered such material admissible and highly
relevant.

The Court: I don’t think your statement of what ap-
peared in The New York Times is to be considered as evi-
dence. If you just want to test the knowledge of this wit-
ness, I will let you ask the question.

Mr. Rembar: I will ask Mr. Sullivan to concede, not the
relevance, but the authenticity of this page of The New
York Sunday Times Book Review.

Mr. Sullivan: Counsel has gone over this before, your
Honor, and I have no objection to the authenticity, that this
is a certain page out of The New York Times, but I do
wish to enter my objection on its relevancy and materiality.

The Court: Let me see it.

What statement? It is kind of long.

———

23

[fol.27] Mr. Rembar: I was about to read it to the
witness.

Shall I point it out to your Honor?

The Court: The whole thing?

Mr. Rembar: Yes.

(The Court reads article silently.)

The Court: This is getting in evidence the opinion of
another witness not under oath. I don’t think it is proper.
It is this witness’ opinion of how good Cleland was as a
writer, or how bad he was, his belief.

I will exclude it.

Mr. Rembar: May I have an exception, your Honor?

The Court: Exception noted.

Mr. Rembar: In order to save time, I would like to
make—

The Court: Offer of proof?

Mr. Rembar: Offer of proof of this and three pieces of
documentary evidence as to which I assume the objection
of my brother will be the same and the Court’s ruling will
be the same.

The Court: Of course, what you pointed out was the
opinion of somebody else.

Mr. Rembar: Yes, sir.

The Court: You asked that it get in evidence by asking
the witness if he agrees with the opinion of that gentleman.
I will accept it as an offer of proof, and it may be marked
for identification No. 1, offer of proof.

[fol.28] Mr. Rembar: May I submit a photocopy?

The Court: No objection if it is a photostatic copy?

Mr. Sullivan: No, your Honor.

The Court: The photostatic copy may be received as an
offer of proof.

(Photostatic copy of Page 2, The New York Times Book
Review, dated July 28, 1963, containing column entitled,
“Speaking of Books,” by J. Donald Adams, is marked Ex-
hibit 1 for Identification.)

24

Offer of proof:
Speaking of Books
By J. Donald Adams

-Today’s column derives from two recent charges of liter-
ary obscenity: the first a ruling by the New York State
Court of Appeals, by a vote of four to three, describing
as “flagrantly obscene” Henry Miller’s “Tropic of Cancer”;
the second, a similar charge brought by Corporation Coun-
sel Larkin and the district attorneys of the five counties of
New York City, against John Cleland’s “Memoirs of a
Woman of Pleasure,” better known to many generations of
readers simply as “Fanny Hill.” Miller’s book led an under-
ground life for 30 years after its publication abroad in
1931; it was not published here until 1961. Cleland’s book
first appeared in London in 1748 or 1749, and has led a
similar life for nearly two centuries. It was first published
in this country last spring.

As every reader of current fiction knows, so far as book
publication is concerned, the bars are now completely down
in the matter of a writer’s choice of language. Newspapers
and most magazines still exercise, in varying degree, a
measure of self-censorship. So do some book publishers,
but no four-letter word is banned from publication if the
[fol. 29] publisher, whether of newspapers, magazines or
books, chooses to pass it. Government censorship enters the
picture only when a work is judged to be obscene. In effect,
it is not the words which matter, but the intention with
which they are used. “Tropic of Cancer” is full of four-
letter words, but by a unanimous decision the Supreme
Court of California upheld Miller’s right to use them be-
cause “There is no authority in the court to act as censors
of artistic expression.”

To my mind, a writer should be free to use any word in
the language. Where he uses it, in what circumstances, and
how often, are matters on which the ruling must be made
by his own taste, or if he has none—as too many writers
have not—by his editor, agent, or publisher. The whole

25

responsibility lies among them, and it is their obligation to
exercise it, if official censorship is to be avoided.

So far, the issue seems to be clear-cut. But when we
come to the question of what is obscene, the line cannot
easily be clearly drawn, if, indeed, it can be drawn at all.
There is a strong subjective element here, and what is
obscene to you may not be obscene to me. To some persons,
certain passages in the Bible are obscene; many schools,
wrongly, in my estimation, use expurgated editions of
Shakespeare’s plays. It is time we were quit of all this
Comstockery.

Cleland was not a great writer, but he was a gifted one,
and in my belief as much entitled to call himself an artist
as Henry Miller. The chief difference between them is that
Cleland presented normal sexual relations for what they
are—the intensest pleasure man derives from his senses;
Miller makes them revolting. I would prefer to have a child
of mine read Cleland rather than Miller.

There are, not that it matters, no four-letter words in
Cleland: There is characterization which Miller has never
achieved; there are sound moral pronouncements, which he
has never made. Cleland offers a vivid social picture of his
time—overstated at times, to be sure—but which is basically
as true as the drawings of his contemporary Hogarth. As
Peter Quennel suggests, the book is properly seen as one of
the reactions, in an outspoken age, to the sanctimonious,
[fol. 30] sentimental and slyly prurient novels of Samuel
Richardson, whose “Pamela” provoked Fielding into writing
the same story in reverse, “Joseph Andrews”—in which a
young man protects his chastity as zealously as Richard-
son’s heroine. Furthermore, Cleland emphasizes the fact
that the sex relation, when informed by love, rests on a
higher level than when it is a purely animal reflex—a
distinction which many of today’s novelists decline to make.

So much for Cleland’s merits as a writer. And the de-
merits? He was well aware of the pitfalls waiting for any
novelist who writes in explicit terms of physical love—for
he says “there is no escaping a repetition of near the same

26

images, the same figures, with this further inconvenience .. .
that the words, joys, ardours, transports, extasies and the
rest of those pathetic terms... flatten and lose much of
their due spirift_and energy by the frequency with which
they indispensably recur.” Many of his pages become
wearisome, but one must admit that in stating why they
do, he spoke as an artist.

Many of our current writers including Miller, Jones, and
O’Hara, might ponder that statement with profit. I agree
with Mr. Quennell that Cleland’s book “seems to be far less
subversive and demoralizing than not a few of its 20th
century counterparts,” and that in it “we escape the nau-
seating modern mixture of sexual appetite and criminal
violence.” I do not deny that “Fanny Hill” can shock some
tender sensibilities, but I do not regard it as an evil book.

Mr. Rembar: The three other pieces of documentary evi-
dence to which I refer, your Honor, are the October 31,
1963 issue of The New York Review of Books; Page 710
of the New Statesman of November 15, 1963; and a page
whose number I do not have, of the issue of TIME Maga-
zine of August 2, 1963, headed “Modern Living”’.

Mr. Sullivan: May we just take these down, your Honor,
so we will have a record?

The Court: Do you have objection to their admission?

Mr. Sullivan: I have, your Honor.

Mr. Rembar: Exactly the same offer and objection.
{fol.31] The Court: This one in The New York Review
is an opinion of a writer concerning the book who is not
present in court. It is hearsay. I will exclude it, and to
that you take an exception?

Mr. Rembar: Yes, sir.

The Court: That may be marked for identification as part
of an offer of proof, No. 2.

(Article entitled, “The Harlot’s Progress”, by V. S.
Pritchett, contained in the October 31, 1963 edition of The
New York Review of Books is marked Exhibit 2 for Iden-
tification.)

27

Offer of proof:
The Harlot’s Progress
V. S. Pritchett

Memoirs of a Woman of Pleasure by John Cleland.
Putnam, 319 pp. $6.00; paperback $.95

Every age gets the pornography it deserves. The people
who are now making a fuss about Fanny Hill, John Clel-
and’s Memoirs of a Woman of Pleasure, do nothing about
the real pornography of today—the incitement to violence,
torture, maiming, and killing, often topped up with sexual
perversity, which are presented with a sickening kind of
pleasurelessness, on the screen of television and cinema and
in pulp fiction. It can be suggested (as Havelock Ellis once
did) that some kinds of pornography are socially useful;
they may allay evil desires by acting as a sort of imaginative
distraction. They may lead us away from action into harm-
less fantasy. Whether this is so or not, the real test is not
what the average man thinks; it is the test of artistic merit,
and if he is called upon to judge, it is the average of man’s
duty to find out what artistic merit is. He will find himself
considering man’s often brilliant exploration of his own
imagination. Nothing could be more horrifying and inciting
to sadistic action than those terrible pictures of Goya’s
called “The Fantasies” and “The Disasters of War”; how-
ever, one sees, at once that Goya’s art transmutes them and
places them in that area of our minds where the difficult but
indispensable moral and civilizing process can operate. The
[fol. 32] same transmuting process can be seen in the treat-
ment of the classical but surely sordid encounter of Leda
with the Swan; in the brothel paintings of Toulouse-Lautrec,
in the pathos and laughter of Maupassant’s “Maison Tel-
lier.” I believe one can see it also in that minor amatory
exercise, “Memoirs of a Woman of Pleasure’. No one is
asked to say how meritorious an artist is in these matters,
but it is essential for the transmutting element to be recog-
nized.

28

Since 1749 when it was first published in London, many
sensible people have thought that “Memoirs of a Woman of
Pleasure,” usually known as Fanny Hill, had this element.
It has its place in the history of literature, not in the history
of smut. Smut never lasts. The story is obviously inflaming,
but even “Jane Eyre” or “Lorna Doone” inflames. Fanny,
a country girl abandoned in London, describes how she
enters a select brothel—note the word “select”—and goes
into prolonged, detailed descriptions of several kinds of
sexual adventure and intercourse. In doing so, however, she
never utters an obscene word, rarely descends even to col-
loquialism, never to the clinical; she indeed writes an
elaborate literary language that would do credit to any
master of baroque and poetic utterance—shall we say Henry
James?—spoken in a drawing room. And it is not shabby
baroque. The disconcerting thing about the book—as a
piece of “pornography”—is that it has charm. Many have
thought the intercourse of the sexes brutal even when
blessed by the Church; more refined and indeed naturally
sensitive or passionate people have found the very opposite.
Fanny belongs to the latter category. She is healthy, warm-
blooded, delights in her senses, is unashamed in curiosity,
and is distinctly self-aware. She is unrepentant in pleasure
or lust; but she truthfully perceives—and this, I believe,
without the sort of hyprocrisy that greater writers like
Defoe or Richardson insinuated—that she had physical
pleasure in lust but physical spiritual pleasure in love.
Having made a lot of money in her enforced profession
about which, in the true practical spirit of the eighteenth
century, she is complacent, she marries her first lover: a
success story that can be said to be a smack in the face for
Clarissa or Pamela.

No one pretends that John Cleland approaches the range
or power of Defoe or Richardson as a novelist. His book is,
[fol. 33] on the other hand, the nearest thing we have to
an English “Manon Lescaut”. But he must be seriously
discussed with these writers by the literary critic, for he
brings to life an important element in eighteenth-century

29

morality and feeling. Two influences clearly bear on his
mind. The first is accidental. Residence in Smyrna as
British Counsel and later in Bombay appears to have
removed from Cleland the morally ruthless, brutal, or comic-
brutal attitude to sexual life which is so strong in the
aggressive Anglo-American traditions. (Charm, tender-
ness, a concern for manners in love are pronounced in
Oriental works like “The Arabian Nights” and, despite the
clinical dog-Latin of timid translators, in “The Golden
Lotus”.) But the strongest influence on Cleland is that
concern for the reform of manners which is the most power-
ful force in the English novel during the eighteenth century.

Part of this spirit of reform was the expression of Pur-
itan ambition or—more accurately—of the beginnings of
middle-class respectability ; it began under William III who,
like most Dutchmen of that time, was appalled by the bar-
barity of English social life. The other part was directed
to polish, elegance, the refinement of sensibility, and making
men and women physically clean and conversible. In the
end, the former hardened into hypocrisy and the latter into
arid artifice and eventually false sentiment. Especially does
the spirit of reform, and the social revolution accompany-
ing it, affect the status of women who begin to emerge as
the custodians of society and, at last, of their own persons.
Defoe’s Roxanna becomes a greedy kept mistress, because
she is determined to be as free as any merchant and to be
as much master of her person and property as any man.
Defoe’s Moll Flanders, thief and doxy and calculating for-
nicator, sins for one motive only: to attain respectability.
She ends as the first Mrs. Grundy of Virginia. Her morality
and remorse—like Mrs. Grundy’s—are amiable but suspect.
Though frank about their sexual experiences, these ladies
take it as it comes and are incapable of describing their
inner life.

It was more profitable, as Mr. Peter Quennell says in his
excellent introduction, to compare Fanny Hill with Richard-
son’ heroines Pamela or Clarissa; and also to compare
Cleland’s moral attitude with the Hogarth of “The Harlot’s
Progress”. The moral of Pamela is that lovely woman must

30

not stoop to folly; if she does, she will miss both respect-
(fol. 34] ability and property. The moral of Clarissa is
“Better death”; and of Hogarth’s pictorial chronicle, that
a life of libertinage leads to self-destruction. To these vio-
lent and general views, Fielding was the aristocratic objec-
tor. It was notorious (a large body of non-Puritan opinion
agreed) that a life of pleasure did not automatically lead
to disaster; that the virtuous Pamela was a sham; and even
that Clarissa was one of those peculiar psychological aber-
rants who are contented with nothing short of rape. Like

Fielding (in this way at least), John Cleland holds to the -

view that manners can be reformed only if one-is truthful
about private experience and cultivates one’s perceptions
and good sense. His story may be shallow, but its content,
within its limits, is not.

To this attitude Cleland adds his own eccentricity as a
writer. He was a bookish Scot with a Celtic bee in his
bonnet. He is eccentric to the point of ridicule. It is true
he was a down-at-heel Bohemian who wrote his sensational
and daring Fanny Hill to make a quick twenty guineas,
when he was bankrupt; yet his real interests were esoteric
and solemn. His hobby-horse was not sex but philology.
He sought to found a universal language and wrote a
“Specimen of an Etymological Vocabulary or Essay by
means of the Analytic Method, to retrieve the Ancient
Celtic.”

Mr. Quennell quotes a long passage from this obscure
essay, which is dotty but reveals an obsession with the meta-
physics of the art of description. Here is a sample of
Cleland’s groping mind:

“If then, I repeat it, if I am not mistaken in this
method of analysing words by an individuation of ideas,
syllable by syllable, and through every particle that
constitutes those ideas . . by means of which the exis-
tence of things may be found in their natural records
and repositories, words satisfactorily explained so as

to convey undeniable truths by implication .. .”

31

If that particular passage suggests anything it is a fervid
preoccupation with metaphor and the associations of words
poetic or otherwise—which is not, when one comes to think
of it, extraordinary in an eloquent Celt—that inspired the
florid and indeed the best passages of sexual description in
the book. The evocation of what sexual pleasure is in its
[fol. 35] particularity and in the imagination, was his
strong point. There he succeeded where better and higher-
minded writers—D. H. Lawrence among them-—have gro-
tesquely failed. Cleland is good about sex because he is
good about words. Elegance, energy and kindness, he con-
veyed.

The absurdity of Fanny Hill lies here also; where “por-
nography” does not brutalize, it idealizes. The book is, in
this sense, an erotic fantasy—and a male fantasy, at that,
put into the mind of a woman. The male organ is phenom-
enal to the point of absurdity. Cleland is carried away by
his sexual daydream. So was Casanova, most of the time,
for eroticism is a kind of intoxication. But we must remem-
ber that Fanny Hill was a sensational book, written as a
sensational counterblast from the point of view of privacy
to those who were formulating the new public bourgeois
attitude to sex. In one sense Cleland is engagingly feminine;
the continual reference to clothes, to furniture, to manners
is that. But Cleland has the naive male double view that
old whores are hardened and corrupt but that young ones,
though on the make, are also rescuable—not by pious inter-
ference, but through the experience of love. On the whole,
one would guess that Hogarth’s view of the bagnio was the
correct one; for we notice Cleland is a snob; his brothel is
that fantasy, the select brothel with no risk of the eigh-
teenth-century nightmare, the pox; but is odd that Cleland,
who was either wrong, exalted, or cynical, should have had
a finer and far less gross sexual sensibility than Hogarth—
except possibly in one or two gory sadistic metaphors and
in the disagreeable flagellation scene. If that disgusts, it
at any rate shrewdly exposes the psychological distress of
the neurotic.

32

Fanny Hill may bore one—she admits that an ecstatic

story like hers may become tedious because there is nothing
so tiring as repeated ecstasy—but she leaves no bad taste.
If we don’t believe her fairy tale, we believe her feelings.
Indeed she conveys the sense of pleasure without guilt.
(There, alas, she is no realist.) After the eighteenth cen-
tury, a book like this could not be written in England.
Romantic morality reasserted itself and sexual happiness
retired from print into privacy and, indeed, one does not
want this private mystery to be exploited or described too
often, even by the gifted.
(fol. 36] After publication, the real pornographers got
to work on Fanny Hill. The book was pirated. The pirates
supplied obscene illustrations. (One set of these by Cruik-
shank must have been good, but it has been lost.) They
dirtied the text, added episodes. The illustrations led to
prosecutions. But as a minor fantasy, deluding as a guide
to conduct, but respectful of our delight in the body, this
half-sly, half-ingenuous manual is an interesting footnote
in the history of the English novel. It reminds one of those
improper carvings one sometimes finds under the arms of
medieval choir stalls. Immodestly the fiesh happily per-
sists.

The Court: I exclude this opinion of this book found in
the “New Statesman” as purely hearsay, opinion testimony,
the author not in the court. Do you except?

Mr. Rembar: Yes, your Honor.

The Court: Exception noted. Do you offer that as an
offer of proof?

Mr. Rembar: Yes, your Honor.

The Court: It may be marked Identification No. 3.

(Article entitled “Mersey Sound, 1750”, by Brigid
Brophy, from the November 15, 1963 issue of “New States-
man”, page 710, is marked Exhibit 3 for Identification.)

Offer of Proof:
Mersey Sound, 1750
Brigid Brophy

To my mind, the two most fascinating subjects in the
universe are sex and the 18th century. Anyone who so
much as partly shares that persuasion would expect “Fanny
Hill”, as a cardinal source-book for both subjects, to be
an interesting document. An interesting novel, however,
[fol. 37] you would not expect, if you judged by the run
of minor 18th-century fictions or, still less, by the run
of famous naughty books. As a rule, if there’s anything
drearier than smut, it’s old smut. When “Fanny Hill” turns
out to possess, over and above the interest of its material,
literary charm, that seems almost too bonus to be true.
It is in fact a highly engaging little erotic tale—perhaps
the most engaging emerge from the entire 17 centuries of
European literature that lie between “Daphnis and Chloe”
and “Claudine a |’Ecole”.

Not that there could be an instant’s doubt which of the
17 “Fanny Hill” belongs to. Tone, tenor and preoccupa-
tions, to say nothing of the heroine’s first name, are all so
dead-central to the period that it is by an accident of po-
etical precision that the book was published slap in the
centre of the century, in 1750 itself. No more can one
doubt that John Cleland’s (quite legitimate) purpose was
to entertain and get paid for doing so. He neither aims
at nor achieves a masterpiece. When he touches art, which
is quite often, it is of a truly artless kind; he is not even
trying, in the fashion established, soon afterwards by
Greuze and towards the end of the century transplanted
into literature by Bernardin de Saint-Pierre, to be artless.

That, given the period’s wrongheadedness about art and
artlessness alike, is to Cleland’s advantage. The literary
masterpieces of the 18th century were produced against
the grain of a philosophy convinced that imagining was
less useful than moralising, and often against the grain
of the author himself. The century’s greatest poet could
actually, locking back in admiration to the primitive Golden

34

Age, count among its glories that it had no arts. Laclos
east “Les Liaisons Dangereuses” in the flippant convention
of an erotic novel with a perfunctory punishment of vice
appended. The result is that we have only just noticed
that it is a great novel, and have still not wholly taken
in that it is one which turns its convention upside down—
not an erotic but a thanatic novel, whose ending, so far
from being an appendage, is the tragic doom towards which
the characters unconsciously drive themselves all along.
Cleland’s talent, quite lacking the stamina of Pope’s or
Laclos’, could never have stood out against the exception-
ally marked and uniform grain of his age. Had he at-
[fol. 38] tempted high art, he would have got trapped in
the marmoreal toga-folds of the 18th century elevated
manner. He is saved because, unlike Laclos, he is writiug
an erotic novel. He can skip the elevation and get on with
the erections. ‘I skip over, Fanny frankly writes, ‘the nat-
ural grief and affliction which I felt on this melancholy
occasion’—that is, ‘the loss of my tender fond parents’.
Likewise she will ‘skip over all that happened to me on
the road’—the road, that is, conducting her to London and
prostitution: from her poor but respectable birthplace near
Liverpool.

Cleland’s immediate model is “Clarissa”, whose final vol-
umes had appeared the year before. He adopts the stand-
ard epistolary form, but with no attempt at verisimilitude,
let alone at providing a textbook of epistolary etiquette.
He simply splits his novel into two ‘letters’: each is framed
in a couple of merely formal, though pretty, colophons in
the shape of an introductory ‘Madam’ and a concluding
“T am, Madam, yours, eic.” which are addressed to an
anonymous friend to whom Fanny has promised an account
of ‘the loose part of my life, wrote with the same liberty
that I led it.’ Having tidied away the paraphernalia, Cle-
land is able to get on with a remarkably uncluttered nar-
rative line; indeed, he gets Fanny to London, and places
her, penniless and friendless, at the mercy of a brothel-
keeper, in about as many pages as it takes Richardson
volumes to get Clarissa into the same fix.

|

35

In outline, Fanny’s story apes Clarissa’s; but where
Richardson, a proto-Sade but less frank, presides sancti-
moniously over his heroine’s long-drawn degradation,
Cleland and Fanny are cheerful. The opening discloses
the end will be happy, and in fact everything between is
arranged in a manner thoroughly agreeable to Fanny.
Quickly escaping the nasty procuress, she takes up with—
indeed, falls more than a touch in love with—one who is
kind, deals fair financially and tenderly suffers her girls
to have none but gentle and sexually attractive clients.
The most remarkable thing about these ‘memoirs of a
woman of pleasure’ is that the pleasure concerned is
Fanny’s. She may be bought, but she is no inert bit of
goods. Her ‘downfall’ is really one long delightful swoon
into the depths of pleasurable sensation—which Cleland
has her describe in vigorous and often beautiful meta-
phorical language; by her own account, her subject is ‘prop-
erly the province of poetry, nay, is poetry itself’. The
emergence of the 18th-century heroine, explaining herself
[fol. 39] in the novel through letters and in the opera
through arias, reflects that women had emerged into social
articulateness. No longer mere objects of men’s pleasures,
they can themselves be pleased and say so. A whole pub-
lic—including the women themselves—was demanding to
be told what did please women. Cleland’s was perhaps
the most explicit answer.

True, the century had ‘defloration mania’, and Cleland
eaters for it. The parlour game of Fanny’s fellow-pros-
titutes is to swop accounts of how they lost their virginities ;
and Fanny’s own history is a prolonged defloration. It
begins at the hands of a prostitute, and proceeds to the
loss of her visual innocence when she spies on sexual en-
counters ; even after her first lover deflowers her, it remains
for a lover more ithyphallic to enlarge the result; even
then, with the help of stage-property blood, Fanny fakes
up a maidenhead to have it destroyed all over again by
a client whose particularity that is. She undergoes yet
another ‘initiation’—into a society of four couples who
take turns at coupling in front of the others. There fol-

36

lows Fanny’s systematically progressive initiation into
variations and perversities; and at the last Cleland still
has an ironic conceit up his sleeve whereby Fanny, re-
united and about to be married to her first love, comes to
bed as blushingly as a virgin, though her blushes are now
for her non-virginity.

Yet all these pangs of defloration are in the service of
erotic pleasure—Fanny’s and the reader’s. Postponing the
culmination of Fanny’s deflowering is equivalent to post-
poning the point where the reader has a mental orgasm.
By fulfilling the requirements of the erotic novel, Cleland
produced an article rare in the 18th century, a full-length
(which Voltair’s are not) prose narrative where the cli-
maxes are cumulative instead of cancelling out. Fanny
herself propounds the literary problems: to avoid at once
gross language and ‘mincing . . . affected circumlocutions’ ;
and to introduce variety into subject-matter ‘eternally one
and the same’. Surmounting these problems, Cleland ar-
rived at the craft of the well-made novel. It is all the
same craft, whether the novel is erotic or non-erotic; and
to a large extent it is the same craft as that of the well-
{fol.40] made erotic daydream. Cleland’s narrative, in
which all iiconveniencies—including the very possibility
of pregnancy——are simply swept out of consideration, is
purest daydream. Its content could not possibly shock
anycne who has ever led a fantasy life.

EKighteenth-century philosophy had, like Fanny herself,
recognized pleasure as nature’s ‘principal end’. Cleland is
simply practising what Edward Young preached, that
‘Pleasure is nought but virtue’s gayer name’. Fanny finally
opts for virtue in the form of true and singleminded love,
but without, as she rightly claims, hypocrisy: she simply
finds love ultimately more pleasurable, and wastes no re-
gret on a past which has only the better equipped her, in
experience and money, for love.

Her progress is sprigged with the pleasure-motifs of the
age. Fanny is Johnsonian in devotion to London, and
Evelin-like in contempt for provincials. The story’s one

37

excursion out of town echoes “The Rape of the Lock” in
being ‘a party of pleasure ... up the river Thames’. Cleland
imports no realistic exoticism from his life in Bombay or
as consul in Smyrna. He uses only the fashionably exotic
slang of calling a brothel a seraglio. That and the ‘cere-
monial of initiation’ which Fanny undergoes fore-echo
Mozart’s themes—and even his serious social intent. Like
“Die Zauberflote” itself. “Fanny Hill” sketches an ideally
benevolent society, albeit in a brothel. Jealousy is drowned
in a diffused bi-sexuality; even the constant voyeurism,
practised through an implausible quantity of cracked pan-
elling, symptomises an attempt to render sex sociable.

Opera is, as a matter of fact, one of the motifs which
Cleland’s mind, running so true to the age, leaps at for
a metaphor of sexual ‘harmony and concert’. The female
body he maps according to the great minor art of the age,
landscaping. It is to Watteau’s landscapes that he casts
back when Fanny calls sexual intercourse ‘our trip to
Cythera’. Indeed, Cleland’s couples share with Watteau’s
a grave elegance and a courteous concern for each other.
Even when the four pairs take turns on the couch, ‘good
manners and politeness were inviolably observ’d’. Cleland
himself is as decent. Mercifully not ‘robust’, or Row-
[fol. 41] landsonian, he is decorous not merely in vocabu-
lary but down to the last cadence of his fine, plain prose.

Cleland does not achieve the imaginative world of a Wat-
teau or a Tiepolo; his is the fantasy world of a decorative
painter. The entire novel might be taking place, like his
pleasure-party in a pavilion whose ‘marquise’ is ‘figur’d
with fluted pilasters . . . the whole having a gay effect
upon the eye, wherever you turn’d it.’

The Court: I will exclude the Time Magazine article. I
read that before; you have it in the back of your brief,
haven’t you?

Mr. Rembar: Yes.

The Court: I .will exclude that as the opinion of some-
one else not in court, and exception noted.

Exception taken, and exception noted.

38

That may be accepted as Identification 4 in an offer of
proof.

(Item bearing sub-heading “Taste” under the heading
“Modern Living” from the August 2, 1963 issue of Time
Magazine is marked Exhibit No. 4 for Identification.)

Modern Living

Taste
Ye Olde Sex

Just when it was becoming fashionably sick, someone
had to come along and remind everybody that sex can be
fun. The contemporary five-foot shelf abounds in incest,
lewd vagrancy, homosexual hankypanky, reckless driving,
and other suburban indelicacies. Such misdemeanors seem
thoroughly neurotic compared to the plain if repetitive
dalliance of Fanny Hill, heroine of John Cleland’s
[fol. 42] “Memoirs of a Woman of Pleasure,” originally
published circa 1749 and widely accredited as the first
deliberately dirty novel in English.

Last week in Manhattan, after hearing arguments on
two injunctions to ban sale and distribution of the book
(in a new edition by G. P. Putnam’s Sons), Justice Charles
Marks of the New York State Supreme Court ruled that
Fanny is indeed obscene.

The United States Supreme Court has held that the test
for obscenity is “whether to the average person, applying
contemporary community standards, the dominant theme
of the material taken as a whole appeals to the prurient
interest.” Said Justice Marks: “The opinions of authors
and critics cannot be substituted for those of the average
person in the contemporary community. Neither the qual-
ity of the writing nor the so-called literary worth of the
book prevents the book from being adjudged obscene.”

A Patchwork Past. The rough handling in court was
not Fanny’s first setback. In 1821 a racily illustrated edi-
tion won fame up Massachusetts way, in what is generally
regarded as the first recorded case in the U.S. of sup-
pression of a literary work on grounds of obscenity. Her

39

second-class status thus established, poor Fanny found that
the boys just wouldn’t leave her alone. Like her sister-in-
arms, “Lady Chatterley,” she has been dog-eared, passed
around, pirated, smuggled, disguised in “Franny and
Zooey” jackets, and buried under musky sweatshirts in
prepschool locker rooms the world over.

Author Cleland, the never-do-well bohemian who first
put “Fanny” between covers, wrote the book because he
needed money, but sold it for a mere 20 guineas. He there-
after pursued his passion for philology and died a scholar.
His publisher, made rich by reprints, died a proper gen-
tleman.

As her story begins, Fanny is a 15-year-old Lancashire
lass who arrives in London and promptly falls into the
clutches of a sportinghouse madam. Her subsequent ad-
ventures are detailed in prose that misses nary an 18th
century curlicue. Of one memorable orgy for eight, she
[fol. 43] relates: ‘It is to be noted that, though all modesty
and reserve were banished from the transaction of those
pleasures, good manners and politeness were inviolably
observed; here was no gross ribaldry, no offensive or rude
behavior, ungenerous reproaches to the girls.’ After enjoy-
ing many another ‘well-breath’d youth, hot-mettled, and
flush with genial juices,’ Fanny finds true love and kisses
the oldest profession goodbye.

Enjoying It Less. Perhaps the most damaging case
against pornography is stated by Fanny herself: its great-
est offense is tedium. She begins her second letter saying:
‘I imagined, indeed, that you would have been cloy’d and
tired with the uniformity of adventures and expressions,
inseparable from a subject of this sort, whose bottom, or
groundwork being, in the nature of things, eternally one
and the same.’ ,

True enough. But in an age when even serious authors
treat the sexual act in terms of a case history or social
protest (and the Olympia Press’s professional pornogra-
phers are driven to exploit De Sadean whips, chains and
intricate multiple interlacings to keep ahead of the uncen-

40

sored press), Fanny Hill’s straightforward heterosexu-
ality must come as a shock. None of her escapades, for
instance, are as unsavory as the AC-DC boy-meets-boy
encounters of James Baldwin’s “Another Country,” nor
are they as grubbily explicit as the climactic sexual passage
in Updike’s “Rabbit Run.”

Certainly Fanny was no common harlot. Her “Memoirs”
combine literary grace with a disarming enthusiasm for
an activity which is, after all, only human. What is more,
she never uses a dirty word.

Mr. Rembar: There is an exception to each of those
rulings, I take it?

The Court: One of them you didn’t make, but I made it
for you. I saved your exceptions; you are protected all
around.

Mr. Rembar: I have no further questions of this witness.

The Court: Any further questions of this witness?
[fol.44] Mr. Sullivan: I have nothing further, your
Honor.

That is the petitioner’s case, your Honor.

The Court: Petitioner rests.

Mr. Rembar: If the Court please, before I call my wit-
nesses, I would like to make a brief statement.

I objected to the eliciting of testimony on the part of
Dr. Collins because, as I contend, the questions asked were
all questions that required a legal conclusion in order to
be answered. I will not argue that point further. Your
Honor has ruled and my brief deals with these matters.

I did not object to the question addressed to Dr. Collins
as to whether in his opinion the book has or lacks literary
merit. That kind of question—

Mr. Sullivan: May I interrupt, your Honor?

The Court: What is this, an opening?

Mr. Sullivan: Are you opening your own case or—

Mr. Rembar: Yes.

Mr. Sullivan: —or pulling mine apart at this stage?

Mr. Rembar: IJ beg your pardon?

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PE Lie oh CeO Cha ls SOR AE alse

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41

Mr. Sullivan: I don’t quite understand what the point
of this is.

Mr. Rembar: I want to distinguish between the type of
testimony to which I object and the type to which I do
not object.

Mr. Sullivan: Your Honor, please, I believe this is a mat-
ter for argument.

[fol.45] The Court: Yes. This is an opening statement
at the conclusion of the petitioner’s evidence.

Our practice here is, if you make an opening statement
before you present your evidence, it is usually a statement
of what you intend to prove and what you intend to show.

Mr. Rembar: I would have arrived at that in the very
next sentence, your Honor.

The Court: All right.

Mr. Rembar: The witnesses whom the publisher, as inter-
vener, will call will testify in the main to the issue last de-
scribed, that is to say, whether the book in issue has or has -
not literary merit or other social values.

I would point out that in the case of Attorney General vs.
A Book Named Tropic of Cancer, the Supreme Judicial
Court of this state held that the presence of such merit or
other values excludes the possibility that a book can be held
obscene.

I call Professor Stocking.

Frep Hotty Strocxine, Sworn
Direct examination.

By Mr. Rembar:

Q. Would you give your full name, please, sir?

A. Fred Holly Stocking.

Q. What is your occupation, Mr. Stocking?

A. I am Professor of English and Chairman of the Eng-
lish Department, Williams College, Williamstown, Mass.

42

Q. How long have you been teaching English?

A. Since 1937.
[fol. 46] Q. Have you covered a wide range of English
literature?

A. Yes, sir, from—generally, I have taught courses from
Chaucer to the 1930’s.

Q. Are you familiar with the book in issue in this case?

A. Yes.

Q. Would you please state your opinion about merit or
lack of merit in this book?

Mr. Sullivan: Objection, your Honor, to the form of the
question. What manner of merit?

Mr. Rembar: I didn’t say manner.

The Court: Are you objecting on his qualifications?

Mr. Sullivan: No, to the form of the question.

The Court: All right; qualifications are admitted. First,
determine whether he has an opinion on whether this book
has any literary merit.

Q. Do you have an opinion, Mr. Stocking, as to whether
the book in issue has literary merit or other value?

A. Yes. .

Q. Would you state that opinion, please?

A. I think this book has literary merit because, first of all,
I think it is a work of art. That is to say, I think it asks
for and receives a literary response as distinct from a non-
literary response.

I think it is, like all pieces of literature, essentially an act
of contemplation, and an act of contemplation presented
through a story that is presented in an orderly and
organized fashion, with a fictional central character, and
with a literary style that is definable and commendable.

I think the central character is presented as a person who,
at the time of writing these words, is essentially what I call
(fol. 47] an intellectual. By an intellectual, I mean someone
who is extremely curious about life and who seeks with
objectivity and detachment to record with accuracy the de-
tails of the external world, physical sensations, psycho-

45

logical responses, who makes an attempt to generalize on
experience for patterns in experience and to articulate and
formulate those patterns, and who likes to, endeavors to,
arrive at certain conclusions about experience.

This character is essentially, in my opinion, an empiricist
who does arrive at certain conclusions, certain conclusions
about moral values, certain conclusions about the nature
and high value of temperance, certain conclusions about the
value of the life of the mind, who arrives at a clear intel-
lectual distinction between the nature of love and the nature
of lust.

The intellectuality of this character is made clear to me
from the opening page by the prose style, which is cere-
monious, formal, consciously formed, and in a way that I
find pleasureable and highly artificial. This establishes the
air of detachment from the beginning.

I think furthermore that it is a remarkable piece of im-
aginative projection. It is extraordinary that a man could
project himself into the mind of a woman in as precise and
vivid a way as Shakespeare has projected himself into the
minds of women and kings and bums and all sorts of per-
sonalities which must have been in many ways different
from Shakespeare’s own.

I find this a structured novel which follows a definitely
progressive pattern. I find it a novel which offers that kind
of vicarious experience and the conclusions one can derive
from vicarious experience which one cannot derive from
one’s own experience.

Furthermore, with the authority of Mr. Quennell, who is
an authority on the 18th century, I find that this tells me
things not only about human nature but about the 18th cen-
tury that I might not otherwise know.

Q. Who is Mr. Quennell?

A. As I understand it, Mr. Quennell is a scholar who has
written considerably about the 18th century. I would say
[fol.48] he is a semi-popular writer whose writings are
based on very sound scholarship which he wears very
lightly.

44

Q. This is the Mr. Quennell who is the author of the in-
troduction?
A. Yes.

Mr. Rembar: That’s all.
Cross examination.

By Mr. Sullivan:

Q. Where were you educated, Doctor?

A. I graduated from Southeastern High School in De-
troit. I got my B.A. from Williams College, my M.A. and my
Ph. D. in English from the University of Michigan.

Q. How long have you been at Williams as a professor?

A. Since 1940. That is, 1 was a member of the faculty.
Professor isn’t the word for that entire time.

Q. Member of the faculty?

A. Yes.

Q. That’s what I mean. I am very pleased to meet you.
I am sure you are a distinguished scholar.

A. Thank you.

Q. Now, you said “on the very first page of this book.” I
assume you are not talking about Mr. Quennell’s introduc-
tion, you are talking about the substance of Cleland’s pub-
lication?

A. That’s true.

Q. You say that the prose style connotes a certain type of
character, do you not?

A. That isn’t exactly what I said. I said it denotes a
character who has achieved a certain capacity for organizing
experience, a certain detachment.

Q. That’s the character of the author?

A. No, the character of Fanny Hill, who is the speaker
as distinct from the author.

Q. The heroine, as Mr. Rembar has described her?

A. Heroine was his pronunciation.

[fol.49] Q. I am very sorry. What kind of a character
did Fanny Hill have, Doctor?

te

—=

45

A. At the time she is writing these words, she had a char-
acter of a person who has had a great deal of experience,
who has lived life with great gusto and with a great interest
in it, and is now trying to formulate her experiences in the
past.

Q. As portrayed by Mr. Cleland, as he wishes to portray
them, is that so?

A. He has her portray herself, yes.

Q. Through the book itself, would you describe Fanny’s
character for me?

A. I have described it. I will repeat this description, if
you like. She is a person who lives with great zest, who is
interested in experiences, who is not offered an opportunity
to have a very wide range of experiences, but, within the
narrow range of experiences that life offers her, she tries
to arrive at certain conclusions about life and to make cer-
tain generalizations.

Q. She doesn’t have the opportunity to have a wide range
of experience?

A. Her economic and family circumstances determine
this, to a large extent.

Q. What family, Doctor?

A. Family that she didn’t have.

Q. Does she have a family?

A. That she didn’t have. Her lack of family would be a
better phrase.

Q. You have recited that she has had certain experiences
and has a zest for life. These experiences, do they include
Lesbianism in the book?

A. Yes, an experience with Phoebe. She is an extremely
innocent girl at that tinie. She certainly wouldn’t be able to
identify it as Lesbian, but we in later age can use this word
for that experience.

Q. Do these experiences include sexual intercourse?

A. Indeed they do.

Q. And endless experiences of sexual intercourse?

A. No.

[fol.50] Q. Within the bounds of the book?

46

A. There are many points in the book in which she is not
engaged in sexual intercourse, but reflecting on her ex-
periences, talking with other girls.

Q. But in reflecting on the experiences, and the explana-
tion of the experiences as they take place, they all involve at
that point sexual relationships?

A. No, they do not involve sexual relationships.

Q. When you take out those that do not involve sexual
relationships, how many pages of this book do you think
you would have left?

A. I would have to go through it and do this.

Mr. Rembar: The book speaks for itself, your Honor, on
this. I don’t think the witness can be expected to count
pages.

Mr. Sullivan: He has said they do not all—

Mr. Rembar: That is his answer.

The Court: I will permit the examination.

A. Do you want me to cite an example of a page that
is not about sexual experiences?

Q. No, I will ask the questions.

A. All right.

Q. Is there any depravity in this book, Doctor?

A. Yes, I think there are one or two experiences which,
if they occurred in real life, would be regarded by a normal
person as depraved, and she learns from both normal, if
that’s the appropriate contrasting term, experiences and
from depraved ones. I think the flagellant episode is the
clearest example.

Q. The whipping?

A. The whipping episode.

Q. Is there any homosexuality?

A. There is a reference to a homosexual episode and, in
this edition, it is not described in detail.

[fol.51] Q. It is not? Have you read the paperback or
just the hard cover?

A. I understand they are the same. This is the book that I
have read (indicating).

Mr. Rembar: They are the same in that regard.
Mr. Sullivan: I have a specific page in mind.

A. I understand that there is a passage that the editors
believed a later publisher inserted and therefore was not
written by Cleland, but does occur in some 18th century
editions of this book.

The Court: We are only interested in this particular
book that is in litigation here.

The Witness: The particular episode I have in mind is
the one in which Fanny is disgusted by what she sees.

Mr. Sullivan: That is what I have in mind.

The Court: I didn’t hear you.

The Witness: I said, the passage I have in mind is the one
in which Fanny expressed disgust at what she had seen.
The actual episode itself, I said, is not presented in the de-
tail that the other episodes are presented.

Mr. Sullivan: I had for reference, your Honor, a book that
Dr. Collins read and it was somewhat different from this.

The Witness: I have only this Putnam edition which you
have before you.

Mr. Rembar: 256 and 257 in that book; 181, 182 in that
book.

The Court: What is this, a homosexual incident?

The Witness: Would you like to have me read this?

[fol.52] Q. I would be pleased to have you read it, be-
ginning here.
A. The passage I have in mind:

“The criminal scene they acted, I had the patience to
see to an end, purely that I might gather more facts
and certainly against them in my design to do their
deserts instance justice; and accordingly, when they
had readjusted themselves, and were preparing to go
out, burning as I was with rage and indignation, I
jumped down from the chair, in order to raise the house
upon them, but with such an unlucky impetuosity, that
some nail or ruggedness in the floor caught my foot,
and flung me on my face with such violence that I fell

senseless on the ground, and must have lain there some
time e’er anyone came to my relief; so that they,
alarmed, I suppose, by the noise of my fall, had more
than the necessary time to make a safe retreat. This
they effected, as I learn with a precipitation nobody
could account for, till, when come to myself, and com-
pos’d enough to speak, I acquainted those of the house
with the whole transaction I had been evidence to.”

That was the paragraph I had in mind.

Q. I had in mind this particular one (indicating).

A. “For now the elder began to embrace, to press and
kiss the younger, to put his hands into his bosom and give
him”—

The Court: Do we need to have this read in? The whole
book is in evidence.

Mr. Sullivan: No, we don’t, your Honor.

The Court: You just put in the record what particular
page you want the Court’s attention called to.

Mr. Sullivan: In Exhibit A, it would be at pages 181 and
182, your Honor.

The Court: That is the homosexual incident.

[fol.53] Q. You earlier stated, Dr. Stocking, that this
was a portrayal of an act of contemplation?

A. Yes.

Q. What did you mean by an act of contemplation?

A. Any literary work is an act of contemplation in that a
literary person contemplates in terms of character, story,
episode, as distinct from a philosopher who contemplates in
terms of abstract proposition, the mathematician in terms of
mathematical symbol, and so forth.

Q. Is it not true that there are repeated and vivid descrip-
tions of sexual intercourse in this book?

A. That is true.

Q. Would you call those descriptions normal sexual inter-
course descriptions?

A. The descriptions are normal descriptions—I want to
make sure what you are asking me about—except that this

49

recorder is more accurate, precise, and orderly than most
of us are able to be in our reports.

Q. He is accurate, Doctor?

A. He gives the illusion of accuracy. I don’t know how
it feels to be a murderer, but when I read what a fellow
says about how it feels, I get the illusion of accuracy.

Q. Then it is an illusion of accuracy?

A. Every piece of literature creates an illusion.

Q. There is also in this book depravity, you have stated?

A. There are descriptions of one or two episodes which a
person, if he encountered them in real life, would describe
as depraved.

Q. And homosexuality?

A. There is a description of an episode, a brief description
of an episode of homosexuality.

Q. And Lesbianism?

A. There is a description of something that you and I
could recognize as Lesbianism.

Q. Are such descriptions obscene, Doctor, by your defini-
tion?

A. By my definition, they are not obscene because they are
subordinate to an interest which is primarily literary,
(fol. 54] whereas an obscene piece of literature has an in-
terest which is primarily to arouse sexual passion in the
reader.

Q. Does not this book give rise to sexual passions in the
reader?

A. Individual passages of the Bible, of Shakespeare’s
plays, and—

Q. I wish you would answer my question.

The Court: Answer the question.

A. Individual passages do, of course.

Q. Percentagewise, in the book itself, what proportion of
this book is devoted to depicting sexual relations of one
kind or another?

A. Iam sorry; I am unable to make a statistical answer.

Q. In your opinion, a rough estimate, Doctor?

A. In my opinion,—

can

50

Mr. Rembar: Your Honor, here again, the book is in
evidence. I don’t see what this witness’ estimate of the
proportion will add to the facts.

The Court: I will allow the question.

The Witness: Will you state the question again?

The Court: How much of it relates to these incidents and
how much does not?

Mr. Rember: I would like‘an exception, your Honor.

The Court: It is admissible.

Repeat the question to the witness, please.

(Question read by the stenographer.)

[fol.55] Mr. Rembar: Your Honor, I would like to make
an objection on further ground. It is now very well settled
that a book must be considered as a whole. It is not per-
missible to take parts of it, or fractions of it, or individual
passages. The question is irrelevant under the present state
of the law.

The Court: I deny your objection.

Mr. Rembar: Exception.

The Court: It adds up, and the test is for me to consider
the whole, not the witness.

The Witness: Judge, if I may say so, my definition of
obscenity is with reference to the whole.

Mr. Sullivan: May the witness answer my question, your
Honor?

A. I do not know what proportion.

Q. Could you make an estimate, Doctor? More than half?

A. This is a question «[—

Q. Depicting—

A. The subject matter, not the way in which the subject
matter is presented; I am just trying to get clear about the
question.

Mr. Rembar: Is it understood I have a continuing ob-

jection?
The Court: No.
Mr. Rembar: I object to this question.

51

The Court: The last question, “Is it more than half?”
Object to that question?

Mr. Rembar: Same objection.
[fol.56] The Court: Objection denied.

Mr. Pembar: Exception.

A. My guess would be less than half.

The Court: Less than half?
The Witness: Yes.

Q. Does the depicting of these sexual relations, be they
intercourse, homosexuality, Lesbianism, or depravity, in
this fashion, in your opinion, arouse prurient interest in the
reader?

Mr. Rembar: Objection, your Honor, on the same ground
to which I objected to these questions in the plaintiff’s case
in chief.

The Court: You object, that the witness has to have in
mind what the legal definition is of prurient interest.
Prurient is a word of many years’ usage.

This witness can answer the question.

Mr. Rembar: Your Honor, it was a word of many years’
usage prior to 1957. In that year, the Supreme Court made
it part of a rule of law.

The Court: Just a moment. If you want to take an
exception, you may have an exception.

Mr. Rembar: I would like to state a further ground of
objection, if your Honor will allow me.

The Court: All right. State it.

Mr. Rembar: This cross-examination goes far beyond
the direct examination which was confined to the issue of
literary merit.

[fol.57] The Court: That doesn’t go in Massachusetts.
He can examine on any issue that may arise in the case.

Objection denied.

Mr. Rembar: Exception.

The Court: Exception noted.

A. Your question was, “Do these episodes presented in
this way arouse prurient interest?” By “in this way” you
mean in the prose style in which they are presented?

52

Q. No, just as presented in the book, Doctor.

A. As presented in the book?

Q. The form as presented in the book.

A. As presented in the book. The answer is No. That
is not the chief—

Mr. Sullivan: May I ask that be stricken?
The Witness: I will ask for a clarification.
The Court: Whatever it is, it is out.

Q. The depicting of the sexual episodes in this book as
presented in the form as set forth in this book, do they
arouse a prurient interest in the reader?

Mr. Rembar: Objection, your Honor, on grounds pre-
viously stated.

The Court: Objection denied.

Mr. Rembar: Exception.

The Court: Exception noted.

[fol.58] Q. A Yes or No, Doctor.

The Witness: Judge, I cannot give a Yes or No because
it arouses many interests, of which a prurient is—

Q. Would you kindly state that you cannot give a Yes
or No answer?
A. I cannot give a Yes or No answer.

The Court: All right. We will take the morning recess.

(Short recess. )

Mr. Sullivan: I have no further questions of this witness,
your Honor.

Redirect examination.

By Mr. Rembar:

Q. You were asked on cross-examination about the pas-
sage in the book in which Fanny Hill observes a homo-
sexual encounter. What is her attitude toward this? What
is her reaction to having seen what she says she saw?

Mr. Sullivan: Objection, your Honor.

a

53

The Court: Of course, I have read the whole book, but
I will allow the question.

A. Anger and disgust.

Q. There were questions directed to you about certain
parts and certain passages of this book, and your opinion of
them was asked. What is your impression of the book as a
whole?

A. My impression of the book as a whole is that it is
essentially trying to be, and is successful in being, a literary
work, that is to say, a piece of writing that intends to and
succeeds in evoking a literary response.

Mr. Rembar: That’s all.

[fol.59] Jouw M. Buuuirt, Sworn.
Direct examination.

By Mr. Rembar:

Q. Would you state your name, please?

A. John M. Bullitt.

Q. What is your position, Mr. Bullitt?

A. Iam Professor of English at Harvard and Master of
Quincy House.

Q. Do you have any particular specialty within the field
of English?

A. Yes, the 18th century is my special field.

Q. Have you read the book in issue?

A. I have.

Q. Do you have an opinion as to its literary merit or
other value?

A. Yes.

Q. Would you state it for the Court, please?

A. As clearly as I can, I should say that the book has
detectable literary merit and considerable historical value.

Mr. Sullivan: May the last portion be stricken, your
Honor? I object to that last.

litte

54

The Court: It wasn’t responsive to the question. It may
go out, but you may ask the witness the same question.

Mr. Rembar: I asked whether or not it had literary merit
or other value, your Honor. The witness is saying it has
historical value as well as literary merit.

Mr. Sullivan: I don’t believe he has been qualified as an
historian, your Honor.

The Court: Read the last question. I only understood it
inquired about literary value.

(Question read by the stenographer.)
{fol. 60] The Court: I will allow the answer to stand.
Q. Will you go on, please?

Mr. Sullivan: Would your Honor note my exception?

The Court: Exception noted. You are excepting to the
portion where he says it has historical value?

Mr. Sullivan: Historical value.

A. I don’t quite know how far you want me to go. It seems
to me that much has already been said with which I would
whole-heartedly agree, namely that we have here a book
which is—

The Court: Just a moment. We can’t take that as evi-
dence.

Mr. Sullivan: May the witness be asked on how far he
is to go, your Honor?

The Court: No. By saying he agreed with others cannot
be accepted as evidence. That part may go out.

Q. That part is stricken out, but you may state what that
opinion is.

A. Yes, all right. This, it seems to me, is a novel which
is a deliberate work of art, not, I must say, in my judgment,
a great work of art by any means, but recognizable as an
effort to interpret a rather complex character living in a
world peopled by highly diversified characters, going
through a number of very different adventures.

There is evidence, it seems to me, here of a rather skillful,
not greatly skillful, but rather skillful effort to construct a
recognizable plot with a purpose behind it.

re i EP

AERA mie 8m 2

55

There is, in my view, clear evidence that this book has a
good deal of interest as it relates to a number of other
books in the 18th century which are concerned with some
of the same themes, some of the same points of view.
[fol.61] As I understand Cleland, he is presenting here
a moral situation in which he is affirming certain moral
values, certain attitudes. The structure of this affirmation
is to set somewhat in opposition the idea of sensual delight
on the one hand in opposition to, what shall we call it,
prudence, or rationality, on the other.

This is a theme which was common in the 18th century.
It underlies “Joseph Andrews” of Henry Fielding; it is a
theme which‘is part of the moral structure of Richardson’s
“Clarissa” and “Pamela”, and so on, very commonly. Cle-
land resolves it in a way which is customary among his
contemporaries in the 1740’s, namely, although she asserts
very strongly throughout the novel the value, the impor-
tance, of sensual pleasure, she at the same time learns, and
the sense of the novel can be construed as the education
of a young woman in a moral life, the value of love.

Actually, this learning process begins at the very begin-
ning of the novel until at the end she concludes, first of all,
the education with the last of her lovers, the old man who
dies, who educates her in a kind of intellectual responsi-
bility, and, finally, she finds her true love in the figure of
Charles. Here she asserts during those last pages at some
length the whole idea that a sensual passion is only truly
experienced when it is associated with the emotion of love.

There is an element of the novel that has not been touched
on frequently, which I would like just briefly to mention.
In fact, there are two elements. We have not discussed the
novel in terms of its comic possibilities.

There is a good deal of comedy in this novel, deliberate,
calculated comedy. For example, the metaphoric structure
which Fanny uses when she describes her seduction, if I
may use that word, by the sailor, is nautical. She falls into
purely nautical phraseology. I have forgotten the terms—
I have at my desk a list of them, at my seat over there,
but if there is any question about it, I can find the passage.

56

Q. You are referring to the—

A. To the sailor who picks her up.

[fol. 62] Q. —encounter with the sailor?

A. Right. At one point in the novel, she has an affair
with a businessman. The metaphor in that case is filled with
references to business terms, and so on. This is deliberate,
calculated, and is amusing.

The second aspect of the book, it seems to me, that might
bear emphasis is the way in which Cleland follows a tradi-
tion of descriptive characterization. It may not be an acci-
dent that she takes the name “Fanny”. It may be that
Cleland clearly had the adventures of Joseph Andrews, by
Henry Fielding, in mind.

In “Fanny Hill,” Fanny is described in great and really
quite delightful physical detail. If anyone wishes me to
read the passages, I can do so, but the detail of this deserip-
tion very closely parallels the description of Fanny in
“Joseph Andrews”. So, it is perfectly evident that he is
here bringing to his piece of fiction an experience, a literary
artistry, which he has learned from one of the great and
acknowledged masterpieces in the 18th century.

Another element that I might mention as perhaps an
interesting insight into the significance of this book for the
period is that the famous French poet, Guillaume Apol-
linaire, brought out an edition of “Fanny Hill” in the 19th
century, a translation of it into French, to which he added
a very long introduction, most of which, not in his words,
most of which consisting of a transcript of parts of the
memoirs of Casanova, and a transcript of a book written
in the 18th century which gave an historical account of the
seraglios, the bagnios, the brothels, and the famous women
who ran them in the 18th century.

This clearly is a piece of rather remarkable social history
of interest to anyone who is interested in fiction as a way
of understanding society in the past. It is interesting that
one of the ladies who is mentioned in this historical account
is named Mrs. Cole, who is one of the two rather sharply
distinguished madams in the story, and this sharp distine-
tion is a further instance that he is not simply mechanically

57

grinding out characters, and this Mrs. Cole, of the two, is
[fol. 63] the more sympathetic, and she is presented rather
sympathetically here in Apollinaire.

Q. You just mentioned, Mr. Bullitt, two characters who
are quite distinct in the book. Is there in general the treat-
ment of character and the development of character in this
book that is typical of the novel as a literary form?

A. Very much so. Perhaps the proper way to start an-
swering your question is to refer to a critical remark made
by Henry Fielding in “Tom Jones.”

The Court: No, You can’t bring hearsay in there.
The Witness: Sorry.

A. In answer to your question, yes, there are a number
of characters. There is Esther Davis, the woman who brings
her to London. There are very careful, exuberantly done
characterizations. I am trying to find the one of Mrs. Jones,
for example, who is described as being about 46 years old,
tall, meager, red-haired, with one of those trivial, ordinary
faces you meet with everywhere and go about unheeded,
unmentioned.

The Court: What page is that?
The Witness: Page 61.

A. There is a rather careful effort here to delineate this
person. The early Phoebe, who is “red-faced, fat and in her
early 50’s, who waddles into a room.” She doesn’t walk in,
she waddles in.

This kind of writing is very skillfully done. It is a mark
of an artist.

Mr. Rembar: Thank you; that’s all.
[fol. 64] Cross examination.

By Mr. Sullivan:

Q. Earlier, Professor, you used the word “seduction” and
then said, “Pardon me for using that term.” Why did you
say, “Pardon me”?

58

A. I was trying to recall vividly exactly what went on
between Fanny and the sailor.

Q. You didn’t know if it was an accurate word to apply
to—

A. To apply to that particular scene. I wasn’t quite cer-
tain. I would have to look again at the opening passage
to be sure.

Q. You say there is considerable sensual delight in the
book?

A. Yes.

Q. Would you say that those passages that relate to
sensual depravity are delightful as well?

A. I don’t understand, sir, your question.

Q. First of all, are there depictions of depraved sexual
relations in “Fanny Hill”?

A. Depictions?

Q. Depicted.

A. A homosexual scene is depicted.

Q. Would you answer my question Yes or No, are there
phrases—

Yes.

. There are?

Yes.

Would you also say they are sensual delight?

No. To whom, the reader or to Fanny?

. To the reader.

. To the reader, no.

. You also say that Fanny operated in a world of di-
versified characters?

A. Yes.

Q. Of the characters in the book, how many of the char-
acters are depicted in relation to non-sexual happenings?
A rough estimate.

A. May IJ ask a question?

[fol. 65] Q. Certainly.

A. To clarify your question, do you mean in their total
life span given to us, because some of the characters who
are involved in sexual exploits have a good deal of other
things—

OPOoPopep

-

59

Q. Any time they appear in the book.
A. Any time. Very few, if any.
Q. Very few, if any.

Mr. Rembar: I’m sorry—would you repeat the question,
please? —_-

The Court: How many characters in the book were con-
cerned with non-sexual activities.

Mr. Rembar: At any time, was that it, or wholly?

The Witness: At some time.

Q. At some time in the book concerned with non-sexual
activities. What was your answer?
A. My answer to that would be No.

Mr. Rembar: I thought he misunderstood.

A. (Continuing) I thought your question—let me give a
straight-forward answer. So far as I can recall, every
character in the book has, at some time or other, some rela-
' tion to sexual activity.
Q. That’s what I understand you to say. Then you say
this book has a plot and a purpose, do you not?
A. A plot, certainly. A purpose, I am not sure I under-
stand you, sir.
Q. I believe you said in direct examination that there is
a definite purpose set forth in the book as the author—
A. If I said that, I would revise what I mean. I think
that, yes, one purpose here is to write a novel that is going
to be of interest to his readers. That is perfectly clear.
Beyond that, he does have an idea to present—a purpose
in that sense. He is communicating.
[fol.66] Q. He shows this through characters, does he
not?

A. Yes, indeed, through what the characters say.

Q. You have said all these characters at some time or
another in the book have some relationship to a depicting
of sexual relationships?

A. Yes.

Q. You also said that Fanny was an intellectual person?

60

A. That, I believe, was not my phrase. It was used by,
I believe, a previous witness, but I think that a very good
ease could be made for that. I wouldn’t put her LQ. at
any great height, but intellectual in the sense that this book
is written, as it were, at the moment, reflecting back upon
a life span of action, and she reflects upon incidents that
took place.

Q. It is really only part of a life span, isn’t it?

A. Well, it depends—I am not quite sure how old she is
right now as she writes it. The book takes her, as I recall,
from 15 to 19.

Q. That’s right; then she marries Charles?

A. Then she marries, that’s right. She has children by
him, so she must be an older woman now.

Q. You gather at least some, well, ten or more years after
she married Charles?

A. Yes.

Q. I gathered the same.

A. The story then goes up to the conventional termina-
tion of most novels, at least in the 18th century, namely,
action before marriage, matrimony, and that is the con-
clusion. .

Q. This is only a four-year span of her life?

A. As I recall, yes.

Q. And you testified this was how she depicted her edu-
cation?

A. Yes. Now, as I recall, she came to London with very
little education, her parents having died when she was
young.

Q. Smallpox?

A. Smallpox, exactly, and she was innocent, and she at-
tributes falling into vice to ignorance and innocence. This,
[fol. 67] again, is a very familiar theme in the 18th century.
Hogarth has a whole series of prints on the subject.

Q. I wish you would answer my question.

A. Yes, sorry.

Q. We don’t have to get into other books. Incidentally,
Doctor, are you here under summons?

A. Under summons?

61

Q. Yes, were you summoned or asked to be here?

A. I was asked, yes.

Q. And you voluntarily came in?

A. Voluntarily, yes.

Q. Do you believe that the reader of this book would have
aroused in him or her prurient interest?

A. What reader?

Q. The average reader in the community to whom this
book becomes available.

Mr. Rembar: Your Honor,—
A. Do I have to answer this Yes or No?

Mr. Rembar: —I know your Honor has ruled on this, but
I make the same objection.

The Court: Objection denied.

Mr. Rembar: Exception.

The Court: Exception saved.

The Witness: Your Honor, do I have to answer that
Yes or No when I find it very difficult? I am no sociologist,
your Honor; I ama professor of English.

Q. Let me rephrase it.

A. I am not a sexologist; I am not a professional in this
matter.

[fol.68] Q. Are you familiar with the dictionary term of
prurient interest?

A. Based on the Latin term meaning itch.

Q. Would you, upon reading this book, and being a
literary expert, which I am sure you are, I am quite im-
pressed with your credentials, feel that the average reader
in this community would have aroused in he or she a
prurient exercise or interest?

Mr. Rembar: I am sorry—prurient what?
Mr. Sullivan: Well, prurient interest.

A. An interest in prurience, did you mean by that phrase?
Q. Yes.

The Court: I will save your objection and exception.
Again, it is the same question.

62

A. I think it is possible, but I find it incapable, honestly,
to be certain.

Q. Well, there is homosexuality in this book, isn’t there?
A. Oh, yes. Surely no homosexual would be aroused by
this.

Q. There is Lesbianism in this book?

A. Yes, and I can’t imagine a girl being stimulated to
Lesbianism.

Q. And there are depictions of depravity in this book?

A. These are two depictions of two kinds of depravity,
yes.

Q. And a good deal of sexual intercourse?

A. Yes.

Q. Is the book obscene in your opinion?

A. Ihave no opinion on obscenity.

Q. You have no opinion on obscenity. Do you have an
opinion on offensiveness?

A. Yes.

Q. Do you feel it is offensive?

A. No.

Mr. Sullivan: I have no further questions.
[fol. 69] Redirect examination.

By Mr. Rembar:

Q. Mr. Bullitt, you were asked whether in this book there
is delight in the two scenes of depravity to which reference
was made, and you asked whether my brother meant delight
on Fanny’s part or on the reader’s part. What is your an-
swer to each, that is, considering the reader and Fanny?

A. I think in this case we are somewhat influenced by
Fanny’s own response. Fanny’s response is disgust, horror, |
indignation. She explains very carefully that the only
reason she sees the scene to its conclusion is not for any
pleasure that she receives in voyeurism, but rather so that |
she can document the facts so that she can go and get help |
and to have the people arrested. This is the reason why

—

63

she hurries so rapidly, catches her foot on a nail, falls, is
knocked unconscious; they hear her and they escape.

Mr. Rembar: No further questions.
Recross examination.

By Mr. Sullivan:

Q. I would like to ask one question. Are you married?

A. I am indeed.

Q. The language used in this book—is this the type of
language you would use over the breakfast table with your
wife?

A. There isn’t a single dirty word in this book.

Q. Would youanswe ay question?

A. Yes, indeed; indeed.

Mr. Sullivan: No further questions.

Robert H. Sproat, Svorn.
Direct examination.

By Mr. Rembar:

Q. Would you state your name, please?

A. Robert H. Sproat.

Q. What is your position, Mr. Sproat?

A. I am Associate Professor of English Literature, Bos-
ton University.
[fol. 70] Q. How long have you been on the faculty at
Boston University?

A. Approximately 17 years.

Q. Have you read the book before the Court?

A. Yes, I have.

Q. Do you have an opinion as to whether it has literary
merit or other value?

A. Yes, I do.

Q. Would you please state that opinion for the Court?

A. I think “Fanny Hill” has very definitely literary
merit and, as such, I believe it has social value. Having
literary merit, I believe it belongs to the history of English
literature rather than the history of smut.

It is a novel that, esthetically or artistically, is a unified
work of art, having a very interesting structure, even
though the division of that structure seems to be in two
parts—it is fundamentally in three parts. It bears upon
the development of the character of the heroine.

Q. What are those three parts?

A. The first part, up to her meeting with Charles; the
second with her experience with, I think it is, Mr. H.; and
then, finally, her salvation in love with Charles.

I think each of these sections is intricately or organically
related to the character of Fanny, to help develop the
heroine’s final moral and philosophical values. Now, they
aren’t very great, I will admit that—they are not profound,
but they are legitimate values, and they are positive values.

Q. What are those values?

A. I think that, at the risk of oversimplification, she finds
that love, that sex without love, with love, is a good thing.

Q. Would you repeat that sentence?

A. That sex with love is a good thing, that is, a morally
good thing, that she is dealing with the opposition, or that
Cleland is dealing with the opposition in the novel between
sex without love and sex with love.

Now, he agrees, Cleland’s point is clear, it seems to me,
that sexual, natural sexual expressions or joys, are funda-
[fol. 71] mentally good. Unlike Kinsey, I would say that
Cleland’s attitude is that sex is good qualitatively rather
than quantitatively.

Fanny realizes this. I think that the character herself—
though Cleland doesn’t have the skill that a Fielding has
—yet she is a minor, she belongs, it seems to me, to the
minor classic heroines, falling someplace, I would say, per-
haps between James Joyce’s Molly and Moll Flanders.

Q. She forms the link between Moll and Molly?

A. Possibly. I am trying not to repeat what has been
said before, but the one aspect, I think, I found interesting

65

about the work, is the way the language functions in his
novel to create a distance, even when the sexual experi-
ences are portrayed, and, I will admit, they are portrayed
in detail. That one’s response to those scenes is a literary
response has been brought out by a previous witness.

One is not unaware of the formal values of the work.
I think that one’s response is, in part, or, as it is in any
work of art, both to what is being said and how it is said
at the same time. Very often, I think that this is a saving
grace, for many of the scenes, translated into language of
the present, realistic, naturalistic, in the language of the
realistic, naturalistic novel, could be quite offensive. But I
find it not offensive.

Q. So far as these realistic, naturalistic novels of the
present are concerned, do you find that they treat sex in as
explicit detail as this book does?

Mr. Sullivan: Objection, your Honor.
The Court: I will allow it.

A. I think that in many novels, and John Updike’s “Rab-
bit Run” come to mind, in one particular passage, it is just
as explicit, if not even more explicit, a treatment of sex—
passages in James Baldwin. Now, I am not saying that
they are particularly offensive. Mary McCarthy approaches
[fol. 72] it in a more clinical way—lI find it more enjoyable,
myself, to read John Cleland, though I hate to say this
about Mary McCarthy.

The Court: Have you found books with as many repeti-
tive sexual experiences as this book?

The Witness: Well, the episodic nature of this 18th cen-
tury novel, which often belongs to the genre, makes it almost
inevitable that one will have a repetition of the same sort
of thing over again. On the other hand, I think that in the
ease of Baldwin, that the total import of the book rests,
at least as I see it, upon all values, all themselves resolved
in terms of fundamental sexual relations. In that sense,
I would say it has more sex in it, but to answer your ques-
tion, in a quantitative count, I would say no, probably.

66

Q. I want to make sure I understand you on what you
said about the style as it affects the response of the reader.
Would you mind going into that a little bit more?

A. I think one can say that, in the response to a work of
art, as perhaps you all know, one cannot separate the form
from the content, but, very often, there is a slight emphasis
on one over the other. Teachers often teach from the stand-
point of content—I find people in comparative literature
tend to do this—rather than paying attention to the total
work of art, the formal value.

What I found amazing in this book is the style itself,
the words, the language, the metaphor—and we do have
evidence that Cleland himself was aware of this—and we
have a rather eccentric theory of language—I believe Mr.
Quennell points this out in the introduction—concerned
with language, with metaphorical expression, and one re-
sponds to that when one is reading about the sexual, when
one is reading the novel, and particularly the sexual epi-
sodes, It rescues—put it this way, the language transmutes
what might have been, what could be a brutal or raw and
directly expressed vulgar situation into something literary.

I don’t know if that answers it.

Q. It does.

Mr. Rembar: I have no further questions.
[fol. 73] Cross examination.

By Mr. Sullivan:

Q. A vulgar situation; do you find “Fanny Hill” vulgar
at points?

A. I do not find it vulgar, if I know what you mean by
vulgar.

Q. Offensive?

A. Offensive, no. I do not find it at all offensive.

Q. You say that this book has some literary merit. I be-
lieve you used the phrase “not great” and “not profound.”
A. Right.

Q. But some value?
A. Some value.

67

Q. That value is that sex with love is a good thing.

A. Well, put that way, that is a rather amateur, crude
way of putting it, but fundamentally—

Q. I think I wrote down your words.

A. Yes, I know. I am criticizing myself, sir, not you.

Q. Does Fanny love all the characters she has—

A. She doesn’t love, but you will notice, I think, if you
read it carefully, that she, in every instance except the
flagellation episode, has to feel, or wants to feei, some kind
of tender feeling, if you will, or have some tender feeling.
You will notice that throughout there is much concern with
manners; she may find that the man was very mannerly
and she admires his manners.

Q. She had no tender feeling when she was trapped, as
we are wont to have said earlier, into observing the homo-
sexuality scene.

A. She was outraged by that.

Q. She was angered and disgusted?

A. She was angered. I am trying to say that even in her
profession she is constantly reflecting, and this has been
brought out before, she is constantly reflecting, she is re-
flecting upon the manners of people.

Q. If the literary merit that grows out of this novel is
that sex with love is a good thing, what purpose can be
[fol. 74] served by depicting the homosexual scene? If that
is a literary merit that comes out of this book, could not
that purpose have been served otherwise?

A. I suppose it could, except that that scene does help to
define the character of Fanny. She is a—if I may quote a
phrase used with admiration about Mr. H., “He is a rational
pleasurist,” and she same something of this herself. In
other words, I think perhaps one can justify that scene on
the grounds that it further develops the character of Fanny.

Q. But it has no particular relationship to the literary
merit you draw out of the book, the literary merit that you
suggest would be there without the homosexual scene?

A. No, I see what you mean, but I feel a work of art is
an organic whole, and if you lop off any part, you destroy
the whole.

68

Q. You feel this is a work of art?
A. Yes, a minor work of art.
Q. Do you also think it is obscene?

Mr. Rembar: Same objection, your Honor.
The Court: Objection denied.

Mr. Rembar: Exception.

The Court: Exception noted.

A. If I should answer that—may I ask a question? If
I say No, I don’t want to be forced to define “obscene” be-
cause I am not sure what you are getting at, but I do not
think that—

Q. Supposing—

A. I do not find the book offensive. I do not find the book
offensive. I find it erotic.

Q. Would you accept the definition of “obscene” as dis-
gusting to the senses?

A. As disgusting to whom, sir?

[fol. 75] Q. The sense, senses, our senses?

A. Our senses—if that is the definition, I would say it is
not obscene.

Q. Do you feel that the book arouses prurient interest in
the reader?

A. Well, once again, I do feel that I cannot judge. I am
not qualified to judge this matter. This is a matter for a
sociologist.

Q. I think that’s a very accurate answer. Do you also
feel, with regard to the characters in this book, at any given
time during the book, that they all have some relationship
to the depicting of a sexual relationship of some sort?

A. AsI recall, I think yes; yes.

Q. And if we were to remove all the sexual relations out
of this book, how much of the book will we have left, pro-
portionately?

Mr. Rembar: Same objection, your Honor. It is the same
question.

The Court: Same ruling.
Mr. Rembar: Exception.
The Court: Exception noted.

69

A. Well, once again, you see, we are involved in this
question of the relationship between form and content. The
work of art is achieved content. By just taking and extract-
ing something and saying what is left, you have an entirely
different work of art.

Q. I know it is difficult, perhaps, because I am sure you
are an accomplished literary person, and I respect you for
that, but let’s try to l

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0232%3A01. Public record. Not legal advice.