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The ‘Fleshly School’ Libel Case From The Times (Friday, 30 June, 1876 - p.11) SECOND DIVISIONAL COURT.
(Before Mr. Justice ARCHIBALD and a Special Jury.)
BUCHANAN V. TAYLOR. This is an action by Mr. Robert Buchanan against Mr. Peter Taylor, M.P., for libels published in the Examiner, of which publication the defendant is the proprietor. The defendant pleaded that the articles complained of were written and published for the public good and in fair and bona fide comment on the critical writings of the plaintiff.
Mr. Russell, Q.C., and Mr. C. R. McClymont appeared for the plaintiff; Mr. Hawkins, Q.C., Mr. J. C. Mathew, Mr. Warre, and Mr. Robert Williams for the defendant.
The alleged libels were published in the Examiner of the 27th of November and the 11th of December last. The first was contained in a review of an anonymous poem, entitled, “Jonas Fisher,” and which, the reviewer stated, “is said by the ‘London Correspondents’ to be the work either of Mr. Robert Buchanan or of the devil.” The second alleged libel was a letter, with the heading “The Devil’s Due,” signed “Thomas Maitland.” The letter, which it is admitted was written by Mr. Swinburne, stated “that an author haunted by such a horror of the bloodthirsty critics who lie in wait for him has evidently yet to learn the new and precious receipt discovered by Mr. Robert Buchanan (if that be his name), of ‘Every Poeticule his own criticaster,’ a device by which Bavius may at once review his own poems with enthusiasm under the signature of Mævius, and throw dirt up, in passing, with momentary accurity, at the window of Horace or of Virgil.” The plaintiff was also referred to a “the multifaced idyllist of the gutter.”
Mr. RUSSELL having opened the plaintiff’s case,
Lord Southesk was called, and he deposed that he was the author of “Jonas Fisher” and that the plaintiff had nothing whatever to do with it. The poem contained his own views of “the fleshly school of poetry.”
Mr. Robert Buchanan stated that he was acquainted with the works of Mr. Rossetti and Mr. Swinburne. He wrote the article on “the fleshly school of poetry,” which appeared in the Contemporary Review, under the nom de plume “Thomas Maitland.” The article contained the views he held on the subject. He had no animosity against any of the persons whose productions he had in mind when he wrote the article.
Mr. HAWKINS cross-examined the plaintiff at great length as to the character of his writings, and had not concluded when the Court rose. ___ From The Times (Saturday, 1 July, 1876 - p.13) SECOND DIVISIONAL COURT.
(Before Mr. Justice ARCHIBALD and a Special Jury.)
BUCHANAN V. TAYLOR. This case, which is an action of libel, brought by Mr. Robert Buchanan against Mr. Peter Taylor, M.P., as proprietor of the Examiner newspaper, was continued to-day.
Mr. Charles Russell, Q.C., and Mr. C. R. McClymont appeared for the plaintiff; Mr. Hawkins, Q.C., Mr. Murphy, Q.C., Mr. J. C. Mathew, and Mr. Robert Williams were for the defendant.
Mr. HAWKINS, continuing his cross-examination of the plaintiff, read several selections from the writings of “Walter Whitman,” who had been spoken of with approbation by the plaintiff, and pressed for an opinion as to their gross indelicacy. This the plaintiff admitted without reserve, excusing, however, Mr. Whitman on account of his youth at the time his book was published.
Being re-examined by Mr. RUSSELL, the plaintiff replied that it was his honest opinion that no indecent sensualism underlay the whole of Mr. Whitman’s works, and that he had put his name to a subscription on Mr. Whitman’s behalf because he was a paralytic and in deep necessity. The Examiner had never suggested that he had written anything indecent.
This concluded the evidence for the plaintiff, and Mr. HAWKINS intimating that he should call no witnesses,
Mr. RUSSELL summed up. The learned counsel commented strongly on the malice of the Examiner in attacking Mr. Buchanan for criticisms made four or five years back, and, after drawing a comparison between the gross sensualism of the writings condemned by Mr. Buchanan and the moderation, justice, and ability with which they had been criticized, he concluded by claiming for his client protection and compensation.
Mr. HAWKINS then addressed the jury on the part of the defendant. He deprecated the action being brought at all against Mr. Taylor, as it was conceded that that gentleman had no personal acquaintance with the plaintiff and owed him no spite. On the contrary, the author’s name had been given up, and there was no reason, therefore, why the defendant should be sued. If this case ended in a verdict for the plaintiff, he would not be entitled to damages as if there had been personal enmity—for personal enmity there was none. The learned counsel said the Examiner had, no doubt, fallen into error, but he repudiated the suggestion that the editor invented Buchanan as the author, and drew attention to the words “We are informed it is Buchanan,” and also to the statement that appeared in the number of the 4th of December, contradicting the authorship at Mr. Buchanan’s request. Coming to the alleged libel, the learned counsel said, no doubt it contained unpleasant statements, but he would show the jury that much of it was true. He was not there to defend the poems of Swinburne and Rossetti, which honestly he could not defend; but he would call their attention to the plaintiff’s own writings, and examine what his learned friend had called the mark which he had made on the literature of his country. The learned counsel then read extracts from “Session of the Poets,” “The White Rose and Red,” and the article in the Contemporary Review, and after citing several passages reflecting on Mr. Swinburne and Mr. Rossetti, contended that such writings deserved all they got in the criticism they had received. Mr. Buchanan’s own books showed his taste for depicting scenes of low life, and a man who could extol and praise the infamously indecent poetry of Mr. Walter Whitman had no right to condemn the fleshly school, which, however bad, was not nearly so gross and corrupt as what had been written by Whitman. The language of this author was too gross for him to quote or repeat, but the jury would have his book before them, and he would read to them Mr. Buchanan’s opinion of him. The learned counsel then referred to an article in which the plaintiff spoke of Walter Whitman as a “great ideal prophet,” a “colossal mystic,” and in the highest sense a “spiritual person,” and remarked if this was the kind of criticism plaintiff applied to such filth, what had he a right to expect himself? He complained of being libelled, but he had libelled others over and over again and under feigned names. Before he asked for damages he should look at his own writings, and if he set up to be a censor morum he must come into court with clean hands. The learned counsel concluded by asking the jury, if they gave damages at all, to give the plaintiff the smallest coin in the realm.
The learned JUDGE said he would sum up to-morrow morning.
The case was then adjourned. ___ From The Times (Monday, 3 July, 1876 - p.13) COMMON PLEAS DIVISION, JULY 1
(Before Mr. Justice ARCHIBALD and a Special Jury.)
BUCHANAN V. TAYLOR. The trial of this cause was concluded to-day. It was an action brought by Mr. Robert Buchanan against Mr. Taylor, M.P., as the proprietor of the Examiner, for two libels published in that paper, bearing date the 27th November and the 11th December last. The defendant denied that the articles were libels, and pleaded that they were written for the public good, and were fair comments upon the critical writings of the plaintiff.
Mr. Charles Russell, Q.C., and Mr. MacClymont were for the plaintiff; Mr. Hawkins, Q.C., Mr. Murphy, Q.C., Mr. J. C. Mathew, and Mr. Robert Williams were for the defendant.
When the Court adjourned yesterday the evidence was concluded, and the counsel on either side had addressed the jury on behalf of their clients. From the effect of these speeches, and the examination of the plaintiff, who, with the exception of Lord Southesk, was the only witness called in the case, it appeared that the libels in question, which are too long to publish in extenso, had their origin under the following circumstances:—As long ago as 1871 the plaintiff sent an article to the Contemporary Review under the title of the “Fleshly School,” in which he took occasion to make some pungent criticisms upon the poetry of Mr. Swinburne, Mr. Rossetti, and Mr. Morris. It is a rule with the Contemporary Review to admit no contributions unless the name of the author is appended, but, in this instance, Mr. Buchanan, being desirous that his article should be judged strictly on its merits, preferred to send it without any signature. The article, however, was not published in this state, and the name of “Thomas Maitland” was appended, but apparently without the sanction or even knowledge of the plaintiff. Subsequently, in answer to public curiosity, the plaintiff owned he was the author, and a fierce paper war ensued, in the course of which Mr. Swinburne, in an article, called “Under the Microscope,” retaliated upon the plaintiff, in language not less pungent than had been employed in the article itself. The spirit aroused by these counter-productions had not died away when an anonymous poem was published last year under the name of “Jonas Fisher.” This poem, harmless in itself, and admitted to have been written by Lord Southesk, who was called as a witness for that purpose, contained censures upon the “Fleshly School” which attached suspicion to the plaintiff as the author. Thereupon a review appeared in the Examiner, which was the subject of the first libel complained of. In the course of this the reviewer remarked, “This anonymous poem is said by the London correspondents to be the work of either Mr. Robert Buchanan or the Devil, and, delicate as may be the question raised by this double-sided supposition, the weight of the probability inclines to the first of the alternatives.” Continuing in the same strain, “There are other and more specific circumstances which favour the report that ‘Jonas Fisher’ is another of the aliases under which Mr. Buchanan is fond of challenging criticism rather than one of the equally numerous disguises of the enemy. There is no reason why the Devil should go out of his way to abuse the ‘Fleshly School.’” After the appearance of this article, a disclaimer was inserted in the Examiner, at the request of Mr. Buchanan, denying that he was the author of “Jonas Fisher,” and then, on the 11th of December, appeared the second libel in the shape of a letter headed the “Devil’s Due,” and signed “Thomas Maitland.” This letter, which was admitted to be the work of Mr. Swinburne, and was very long, referred to the plaintiff as the “multifaced idyllist of the gutter,” “the polypseudonymous lyrist and libeller,” and stated that an author haunted by such a horror of the bloodthirsty critics who lie in wait for him has evidently yet to learn the new and precious receipt discovered by Mr. Robert Buchanan (if that be his name) of “‘Every Poeticule his own criticaster,’ a device by which Bavius may at once review his own poems with enthusiasm, under the signature of Mævius, and throw dirt up in passing with momentary accurity at the window of Horace or of Virgil.” Mr. Buchanan was at this time known to be in Scotland, and a postscript was added to the letter, in which such expressions as “skulk” and “Captain Shuffleton” were used, and it was suggested that the plaintiff sheltered himself from attack by the adoption of a feigned signature. The defence to these articles substantially was that the language used, if libellious, had been provoked by Mr. Buchanan himself, and he was subjected to a long cross-examination with this purport by Mr. HAWKINS. It was impossible to report these questions in full, because they were founded for the most part upon passages selected from books which would not bear publication; but the effect of the cross-examination was that Mr. Buchanan admitted he had spoken in terms of praise of the works of “Walt Whitman,” an American, who had written some grossly indecent poems. And passages were read from his own works in which frequent allusion of an uncomplimentary kind was made to Mr. Swinburne. In one place he was spoken of as “jumping up with his neck stretched out like a gander;” and in another Tennyson was made to say of him:—”’To the door with the boy. Call a cab; he is tipsy.’ And they carried the naughty young gentleman out:” but Mr. Buchanan defended these allusions by saying they referred to writings, and that in the same poem he had spoken of himself in terms of dispraise.
Mr. Justice ARCHIBALD summed up the case at considerable length. After telling the jury that anything written to bring another into contempt, or degrade or disparage him, was a libel in law, his Lordship said it would not be enough, therefore, if the articles showed they were only written in bad taste, however bad that taste might be. As to the defendant in the record being the proprietor of the paper, and not the author of the article, Mr. Taylor could not shelter himself from legal responsibility on the ground that he never saw the libel before it was published; but, at the same time, there were considerations here for the jury which might affect the degree of damages, if they thought that Mr. Swinburne was the proper person to have been sued. His Lordship then, after reading and commenting upon both the alleged libels, said this brought him to the question which had been so much discussed—whether the libels had been provoked by Mr. Buchanan himself. Mr. Taylor had nothing to do with this; and it would have been more satisfactory, as well as logical and rational, if Mr. Swinburne had been the defendant. Nothing was more deplorable, his Lordship said, than to see men of genius applying their minds and pens to subjects of the most degrading kind, and calculated only to stimulate and inflame the lowest passions of human nature. He was sure the jury would agree with him that much of the “Fleshly School” had better never have been written, and if all of it was consigned to the flames to-morrow the world would be much the better. In the words of a high authority, such writing was not convenient, and was not good for writer or reader. It might be more successful because the object was veiled in elegant and refined language, but it was not the less on this account unworthy of men of genius. But if this was the character of such writings, they were not to be rebuked except in a grave and serious way; and if, instead of this, they were made the excuse of a sensational essay, and the same faults were reproduced by repetition and unnecessary quotation, such a mode of treatment must betaken into account by the jury in assessing damages. His Lordship then read passages from the plaintiff’s article in the Contemporary Review, and from his “Sessions of the Poets,” and asked the jury if they thought, from the remarks in the latter upon Mr. Swinburne, the plaintiff showed the characteristics of a man capable of seriously reviewing and rebuking the “Fleshly School.” His Lordship made some further observations on the plaintiff’s writings, observing that it was the extreme of idealism on his part to attribute “Walter Whitman’s” poems to philosophy, and, in conclusion, after remarking that the contest was creditable to neither side, left it to the jury to say whether the plaintiff was entitled to recover damages, and, if so, to what amount.
One of the jurors asked his Lordship whether, if Mr. Swinburne had been made the defendant, this would have covered all the forms under which damages was claimed.
Mr. Justice ARCHIBALD said it would not; that Mr. Swinburne could only be responsible for what he had actually written.
The jury then retired, and, after a short absence, returned into court with a verdict for the plaintiff—Damages, £150.
His LORDSHIP, in answer to Mr. MacClymont, gave judgment accordingly. _____ From The Guardian (30 June, 1876 - p.8) EXTRAORDINARY ACTION FOR LIBEL.
_____ In the Common Pleas Division, yesterday, Mr. Justice Archibald, with a special jury, was engaged in trying the case of Buchanan v. Taylor. This was an action by Mr. Robert Buchanan against the proprietor of the Examiner newspaper, Mr. P. A. Taylor, M.P. for Leicester, to recover damages for an alleged libel contained in notices of a poem which was supposed to have been written by the plaintiff, called “Jonas Fisher.” The defendant, in addition to a plea of not guilty, justified the supposed libel as being only a fair criticism of the work.—Mr. Charles Russell, Q.C. and Mr. McClymont appeared for the plaintiff; and Mr. Hawkins, Q.C. Mr. Mathew, Mr. Warr, and Mr. Robert Williams for the defendant.—Mr. C. Russell, in opening the case, said that the plaintiff was a Scotchman by birth and a literary man by profession. He had attained a considerable amount of eminence in his profession, and he received by the hands of Mr. Gladstone some years ago an award from the Royal Literary Fund, which was the more creditable as having been entirely unasked for. The defendant’s paper was one which, to say the least of it, took strong and peculiar views of politics and religion. Some years ago there sprung up what was known as the “Fleshly School” of writers; and among the most prominent of the writers of this school were Mr. Swinburne, Mr. Rossetti, Mr. Maurice, and Mr. O’Shaughnessy. This school was disgraced by an amount of sensualism and subtle indecency such as was to be found in the French school of writers, but seldom, happily, among English writers. In 1870 Mr. Buchanan sent to the Contemporary Review an article upon the writers of this school, but wished that article to be judged of simply upon its own merits, and he did not, therefore, wish to append his name to it. It was, however, the custom to place names at the end of articles in that review, and the publisher therefore appended the name of “Thomas Maitland.” In consequence of some observations made upon this article the plaintiff came forward, and openly avowed the authorship. After this Mr. Buchanan was criticised most severely by Mr. Swinburne in a publication called “Under the Microscope,” in which article he was supposed to have used up every epithet of abuse in the English language. After this matters rested for a while, but in 1875 Messrs. Trubner published a poem called “Jonas Fisher,” in which the writer took somewhat the same views as the plaintiff might have taken. Thereupon the poem was attacked in the Examiner. It was said, “This anonymous poem is said by the London correspondents to be the work of either Mr. Robert Buchanan or the devil; and delicate as may be the question raised by this double-sided supposition the weight of probability inclines to the first of the alternatives. That the author, whichever he is, is a Scotchman may be inferred from one or two incidents, sneers at the characteristics of his countrymen. If a prophet has no honour in his own country, it must be said, on the other hand, that a country seldom gets much honour from its own prophet. The worst thing said about countries have been said by renegade natives. There are other and more specific circumstances which favour the report that Jonas Fisher is another of the aliases under which Mr. Buchanan is fond of challenging criticism rather than one of the equally numerous disguises of the enemy. There is no reason why the devil should go out of his way to abuse the ‘Fleshly School.’ Now, the hero of this poem has views on some of the tendencies of modern poetry and art which coincide very closely with Mr. Buchanan’s, exhibiting the same nicely balanced and carefully differentiated feelings of scorn for effeminate voluptuousness and delight in that voluptuousness which is manly.” This criticism, it was submitted by the learned counsel, was unfair and unjust to the plaintiff. This, however, was not all, for in the Examiner of the 11th December last there appeared a letter headed “The Devil’s Due,” and signed with the name which had been placed to the plaintiff’s article in the Contemporary Review, “Thomas Maitland,” and dated from “St. Kilda.” The writer says:—“It is with inexpressible interest that I receive, at this distance from New Grub-street, the important and doubtless trustworthy—I should say, reliable—information that the Examiner has lately discovered a mare’s nest, and that a poem which I certainly did not understand to be on your authority, but on quite another kind of authority than yours, attributable ‘either to Mr. Robert Buchanan or the devil,’ is at all events not assignable to my illustrious namesake in pseudonymy. So much the better or so much the worse, as the case may be, either for the songster or the song, possibly for both at once. The invention of the mare’s nest (I do not use the word ‘invention’ in that sense in which the Church Universal talks, or used to talk, of the invention of the Cross) is doubtless all in the ‘way of the world’ - - the title and the subject of the greatest of English comedies; but I may perhaps take this occasion to remark that the mere suggestion of such an alternative in authorship as appears elsewhere to have been offered with less discretion than decision, would be more perplexing to readers of ‘Paradise Lost’ than to readers of the Book of Job (I do not say the book of Robert Buchanan or of Peter Bell the third). The Devil in Scripture, as we all know, was addicted to going to and fro on the earth, and walking up and down in it, a locomotive habit which may suggest the assistance on his part of at least one quality in common with the bard whose range of vision and visitation is suggested to oscillate between the Seven Dials and ‘the Land of Lorne.’” The article continued at considerable length in a similar strain. Mr. Buchanan sent a paragraph to the Echo simply stating that he had nothing to do with “Jonas Fisher,” and there also appeared a paragraph in the World in which some allusion was made to the Examiner; but with this the plaintiff had nothing whatever to do, though it was attributed to him in the Examiner. The plaintiff, through his solicitors, entered into a correspondence, in the course of which it was stated that “The Devil’s Due” was written by Mr. Swinburne, who, it was said, was prepared to take the full responsibility of the article, and it was suggested that proceedings should be taken against him, and not against Mr. Taylor, but this was declined, and the action went on. The learned counsel, in conclusion, said that in the course of what had been written in the Examiner of the plaintiff he was called “a skulk,” a “shuffler,” “a liar,” and “the idyllist of the gutter,” which surely could not be called fair criticism, Mr. Taylor might know nothing of the article, but he was responsible for it, for he gave an opportunity to Mr. Swinburne not to adversely criticise Mr. Buchanan’s works, but to vent the spleen, spite, and malice which he had conceived, so far back as 1871, against the article by “Thomas Maitland” upon the “Fleshly School,” and during all which time Mr. Swinburne appeared to have nursed his wrath.
Lord Southesk was called and said that he was the author of “Jonas Fisher,” and with it Mr. Buchanan had nothing whatever to do. In cross-examination he said that he was acquainted with Mr. Buchanan. “Jonas Fisher” was supposed to be a city missionary in Edinburgh, and he made some free comments upon the Roman Catholic clergy and upon other matters.
Mr. Robert Buchanan said: I have followed literature as a profession for about fifteen years. I am now thirty-five. I have written some poems and much prose, mostly criticisms, and chiefly it was anonymous. In 1871 my attention was drawn to some writers of the “Fleshly School.” I had been acquainted with it before. In September, 1871, I wrote an article upon the “Fleshly School,” and sent it from Oban, in Scotland, to the Contemporary Review. I believe that there was no name appended to it; I gave directions that it should be published anonymously. It appeared with the name of “Thomas Maitland” appended to it. Mr. Strahan wrote that the editor objected to the article appearing anonymously, and I telegraphed to him to suppress it. Very little comment was made upon it until it was discovered that I was the author. I then distinctly avowed being the author. There were then further criticisms upon it. I republished my article with additions, which were chiefly criticisms upon Mr. Swinburne. I honestly expressed my opinion upon this class of writing. I had no animosity against any of the writers I criticised, nor had I any quarrel with any of them. There was no pretence for the “London Correspondent” to suggest that I was the author of “Jonas Fisher.” It was a distinct invention. I have written under various pseudonyms. I repudiated in the Echo being the author of “Jonas Fisher,” but I had nothing to do with the paragraph in the World in which the “Radical Shoemakers” and so on were referred to. I have never written other than what I believed to be honest reviews. I have never puffed myself under assumed names, as imputed to me in the Examiner, nor have I taken any improper way of keeping myself before the public.
Cross-examined. I saw the criticism upon “Jonas Fisher” the week in which it was published. Mr. Minto is, I believe, the editor of the Examiner. I had not before the publication of the review of “Jonas Fisher” seen or had any communication with Mr. Minto or Mr. Taylor.—And you have no reason to believe that either of them care personally about you?—I have reason to know that Mr. Minto is a personal friend of Mr. Swinburne. I communicated with Mr. Minto after the review. I had no knowledge of “Jonas Fisher” until I saw the review.—Did you tell Mr. Minto that he was better acquainted with the Devil’s style than you were? Mr. Russell.—Whatever it was, it was in writing, and must be put in.—Mr. Hawkins.—Was it your opinion that he was better acquainted with the devil’s style than you were?—Mr. Russell said that this was an indirect attempt to get in the substance of a written document.—Mr. Justice Archibald ruled that the question could not be put.—Witness.—I looked upon it as “a foolish rumour” that I had written that book. This was in writing.—Is the paragraph of the 4th of December in the Examiner in which it was said, “Mr. Robert Buchanan has asked us to contradict the rumour that he is the author of ‘Jonas Fisher.’ He had never heard of the work till he saw our review.” The words of the Echo were, “Mr. Robert Buchanan is not the author of the clever poem ‘Jonas Fisher.’ The Examiner says it is either by Mr. Buchanan or the devil, so that there is little room left for speculation upon the authorship.”—That paragraph is not in the words I wrote, but it is substantially the same. I only wrote one paragraph, tho’ for the Echo.—Had you any reason to believe that the editor of the Examiner would “garble your words” if you wrote to him.—I had every reason to believe so; that he would represent me unfairly. I never met Mr. Rosetti, but I have once met Mr. Swinburne. It was at the Hanover Square Rooms, on the occasion of my giving a recitation. I believe I invited him.—You asked him to go there to do you a kindness.—I do not see how it was doing me a kindness. I had never seen Mr. Swinburne when I wrote my “Session of the Poets” in 1866.—You would not make any personal attack in a work of yours?—I might be guilty of personality, but it must be provoked by something very gross. I had not heard when I wrote my “Session of the Poets” that Mr. Swinburne had exceeded the bounds of moderation in drink. It was an unfair, a cowardly, and ungentlemanly thing to refer to that in a review if it stood alone. I might mention it as indicating character in combination with other things. I should think it unfair to drag in his personal appearance, except as indicative of character. I did introduce him into the “Session of the Poets.” The expressions there were indicative of literary character.—You refer to yourself in the “Session of the Poets”— “There sat, looking mooney, conceited, and narrow,
Buchanan, who, finding, when foolish and young,
Apollo asleep on a coster-girl’s barrow,
Straight dragged him away to see somebody hung.” (Laughter). And you also wrote of Mr. Swinburne— “Up jumped with his neck stretched out like a gander.” Has he a long neck?—I do not know.—You also make Mr. Tennyson say of him,— “ ‘To the door with the boy, call a cab, he is tipsy,’
and they carried the naughty young gentleman out.” Was he drunk?—He was drunk to publish such a book. No one in his sober senses would publish it. I think what I said was an exceedingly mild way of putting it. I meant only to refer to Mr. Swinburne’s literary character.—You allude to Mr. Tennyson as being— “With his trousers unbraced, and his shirt-collar undone,
He lolled at his ease like a good-natured bear.” (Laughter).—This was descriptive of his character, as the other was of Mr. Swinburne.—You say— “Master Swinburne glared out of his hair,” How could a man do that?—(Laughter).—If his hair hung over his eyes it would be descriptive.
The further hearing of the case was adjourned. ___ From The Guardian (1 July, 1876 - p.8) THE ALLEGED LIBEL BY THE “EXAMINER.” The trial of the action brought by Mr. Robert Buchanan against Mr. P. A. Taylor, M.P. as proprietor of the London Examiner, to recover damages for an alleged libel contained in that journal, was resumed yesterday morning, in the Common Pleas Division, before Mr. Justice Archibald and a special jury. Mr. C. Russell, Q.C. and Mr. McClymont appeared for the plaintiff; and Mr. Hawkins, Q.C. Mr. Murphy, Q.C. Mr. Matthew, Mr. Warr, and Mr. R. Williams represented the defendant.
The cross-examination of the plaintiff being resumed by Mr. Hawkins, Q.C. he said he had no personal feeling against Mr. Swinburne. He recognised Mr. Swinburne’s style in the “Devil’s Due,” but he never heard that that gentleman had written it until after communications had passed between the solicitors on either side. He was not aware of the fact before the action was brought. He never instructed his counsel to keep anything back, and was perfectly willing that every line he had written should go before the jury—wished it, in point of fact. It was not for him to judge of the merits of his works, or to assign the value of the “Last of the Hangmen.” He believed he had called the hangman the inmost wheel of the machinery of State.
Mr. Hawkins (reading)— “The man who keeps the constitution sharp and clean,
Who furnishes what statesmen only plan,
And keeps the whole play going.” Mr. Russell objected to witness being asked questions as to what had been written in books which were not put in.
Mr. Hawkins said he was asking the witness his opinion upon a sentiment.
The Judge said it would be as well not to read passages from a book not put in.
Witness replied that the passage must be taken ironically. The “Last of the Hangmen” appeared in St. Paul’s Magazine.
Mr. Justice Archibald remarked that that was a happy state of things; he didn’t know that they had arrived at the last of the hangmen yet.
Witness said he was willing to have the work read from beginning to end.
Mr. Hawkins: Then why not persuade your counsel to read it. Mr. Hawkins asked witness if he considered it offensive to a man to describe a man as a clever monkey, who scratched and screamed, and bit and munched, and mumbled—all but spoke; who possessed vices of the human sort; that he was petulant to most, but sweet to those who patted him on the back and gave him meat; that he could imitate to admiration man; and that it was right to intimate that a man had no soul.
Witness replied that it could be no offence to a Materialist to tell him he had no soul. He would think it offensive because he was not a Materialist.
Mr. Hawkins asked if the description were applied to Swinburne.
The question was ruled as inadmissible.
Mr. Hawkins: Did you publish an article called the “Monkey and the Microscope” in the St. Paul’s Magazine?
Witness said yes. It was written in reply to “Under the Microscope” under strong feelings of irritation, and he would say that if the one were withdrawn he would recall his own pamphlet upon it. He would not recall the “Fleshly School of Poetry.” He had got up a subscription for an American poet—Walt Whitman—whom he had not condemned in the article in the Contemporary Review, though he objected to the tone of his works.
Mr. Russell observed that Walt Whitman’s works were not included in the “Fleshly School of Poetry” because he did not belong to that school.
Mr. Hawkins handed up to witness an extract from Walt Whitman’s works, which he said was too grossly indecent to be read in court.
Witness, in answer to Mr. Hawkins, said he should be ashamed to introduce such language into his own works. He did not justify such language, and would only say in extenuation that Whitman, when he wrote them, was a very young man, and that excuse would not avail in the case of a Holywell-street production, because that would probably be the work of a man of more mature years.
By the Judge: Had he to criticise such a passage he certainly should not quote it.
Cross-examination continued: He had written that Walt Whitman’s poetry was spiritual, and that every word he uttered was symbolic, that he was a colossal mystic, and that there were not 50 lines of a thoroughly indecent kind in his works.
In re-examination witness stated that he had publicly reprobated the indecent passages in Walt Whitman. They were introduced by the poet when dealing with certain subjects, but the indecent part could be erased by the simple process of tearing out two or three pages from the whole book. There was nothing witness had written which he would have any objection to Mr. Hawkins reading to the jury if he chose. “Nell” and the “White Rose and Red” had been read by him at public readings in the presence of many ladies, including the Duchess of Argyll and Lady Gainsborough. Neither the Examiner nor any other newspaper had ever suggested that he was guilt of impropriety in his writings. “The White Rose and the Red” was the story of a young man who met an Indian girl and virtually married her. They were thousands of miles from any priest, or from churches and modern civilisation. “Under the Microscope” appeared after the article in the Contemporary Review, and the “Monkey and the Microscope” followed after “Under the Microscope.”
Mr. Russell read several passages from Rosetti and Swinburne, which drew from His Lordship the remark that there was no doubt that they were poems in a style very much to be deprecated. Mr. Justice Archibald had previously remarked that he could see little difference between one of the passages read and the one handed up to him from Walt Whitman; but from this observation Mr. Russell, with deference, dissented.
Mr. Russell announced that this was his case.
Mr. Hawkins: Then you may address the jury (thereby indicating that he should call no witnesses).
Mr. Russell then summed up his case to the jury, and commented upon the fact that Mr. Hawkins, after his severe cross-examination of the plaintiff, had called no witnesses. The plaintiff’s case was left untouched, and would go to the jury on Mr. Buchanan’s evidence alone. That gentleman’s testimony was entitled to credit. He admitted that he had written the “Monkey and the Microscope” under feelings of strong irritation, and in reply to the gross expressions in “Under the Microscope” written by Mr. Swinburne. But the work was written four or five years ago, and yet it was not forgotten when the reviewer in the Examiner wrote the article complained of. Mr. Buchanan wrote “The Fleshly School of Poetry,” seeking to show in it that men of talent and ability were degrading their powers by allying them to sensuality and indecency. He in that review was attacking that style of writing, as he had a right to attack it, in as strong language as he was capable of doing. With the evidence of the books themselves before the jury, could they fail to come to the conclusion that the writings of this school, especially and markedly of Mr. Swinburne, were deformed not with occasional indecent excrescences, but that there was underlying the main body of the writing a subtle spirit of indecency all the more dangerous because it was so subtle. Mr. Buchanan desired to preserve pure the tone of English literature, and attacked these works. Mr. Hawkins had asked why Mr. Buchanan should undertake that duty, and had suggested by a quotation from one of his works that a passage had an indecent tone in it. But this construction of “The White Rose and Red” could not for a moment be maintained. Mr. Buchanan had been attacked for what he had really not written, the article being intended as a vent for the pent-up malice that appeared to have actuated Mr. Swinburne during several years. With regard to Mr. Whitman’s works, there was no comparison between the one passage complained of and the subtle indecency which underlay the entire works of the gentlemen belonging to the Fleshly school. The learned counsel then read extracts from the “Fleshly school of Poetry,” and pointed out that during the interval between its publication and the appearance of the “Devil’s Due” in the Examiner, Mr. Buchanan had written nothing more against these gentlemen. There was, in fact, he said, no new offence committed when “Jonas Fisher” was published. Then came the article in the Examiner which was à propos of nothing except the wrath of Mr. Swinburne. Mr. Buchanan did not complain of fair criticism, to which every one, from the Prime Minister downwards, was exposed in his public capacity, but he did object to having this review containing false statements and being made a peg for an attack upon him. The learned counsel then read the review, in which “Jonas Fisher” was said to be written “either by Robert Buchanan or the devil, and that the author, whichever he was, was a Scotchman.”
Mr. Justice Archibald remarked that the construction of this part of the review was rather curious, because it seemed to imply that the devil was a Scotchman. (Laughter).
Mr. Russell asked if there were in the whole of the article one word of really fair criticism upon what Mr. Buchanan had written to justify the defence that this was an article written for the public good. The review contained language of the most vituperative character, ungentlemanly, smacking strongly of Billingsgate, and piling up epithet upon epithet with the hand of a master. It termed Mr. Buchanan a shuffler, a skunk, and a puffer of himself. He did not think it would be attempted to contend that this was a series of articles, the effect of which was to hold up the plaintiff to ridicule and contempt. Was it for the public good for the paper to describe Mr. Buchanan as a renegade Scotsman; that it should be suggested that it was only a fine point between him and the devil; that he was “The child of green-faced Envy, sick and sore?” Mr. Buchanan did not complain of any adverse criticism on his works, but the law did not authorise a man under the profession of a public writer to allow the columns of a newspaper to be used for purposes of private malice. If the jury came to the conclusion that it was a libel not to be cloaked by considerations of public good, then they would know how to assess damages for such an injury.
Mr. Hawkins contended that even if the plaintiff were entitled to a verdict, which he maintained he was not, the smallest coin in the realm would satisfy the justice of the case.
The further hearing of the case was adjourned until to-day. _____ From The Penny Illustrated Paper (8 July, 1876 - p.10) ROBERT BUCHANAN V. “THE EXAMINER.” In the Common Pleas Division of the High Court on June 29 and 30 and July 1, Mr. Justice Archibald and a special jury had before them an action by Mr. Robert Buchanan against Mr. P. A. Taylor, M.P., the proprietor of the Examiner, to recover damages for an alleged libel contained in notices of a poem which was supposed to have been written by the plaintiff, entitled “Jonas Fisher.” The defendant, in addition to a plea of “Not guilty,” justified the article as being only a fair criticism of the work. The Earl of Southesk went into the witness-box and declared that he was the author of “Jonas Fisher,” and with it Mr. Buchanan had nothing whatever to do. Mr. Buchanan also gave evidence, and, under cross-examination by Mr. Hawkins, Mr. Buchanan’s descriptions of himself and some of his contemporaries afforded some amusement:
“I had not heard, when I wrote my “Session of the Poets,” that Mr. Swinburne had exceeded the bounds of moderation in drink. It would be an unfair, a cowardly, and ungentlemanly thing to refer to that in a review, if it stood alone. I might mention it as indicating character in combination with other things. I should think it unfair to drag in his personal appearance except as indicative of character. I did introduce him into the “Session of the Poets.” The expressions there were indicative of literary character.
“You refer to yourself in the “Session of the Poets”— There sat, looking mooney, conceited, and narrow,
Buchanan, who, finding, when foolish and young,
Apollo asleep on a coster-girl’s barrow,
Straight dragged him away to see somebody hung. (Laughter).
“And you also wrote of Mr. Swinburne— Up jumped with his neck stretched out like a gander. Has he a long neck?—I do not know.
You also make Mr. Tennyson say of him— To the door with the boy, call a cab, he is tipsy,
And they carried the naughty young gentleman out. “Was he drunk?—He was drunk to publish such a book; no man in his sober senses would publish it. I think what I said was an exceedingly mild way of putting it, I meant only to refer to Mr. Swinburne’s literary character.
“You allude to Mr. Tennyson as being— With his trousers unbraced, and his shirt-collar undone,
He lolled at his ease like a good-natured bear. (Laughter).—This was descriptive of his character, as the other was of Mr. Swinburne’s.
“You say “Master Swinburne” “glared out of his hair;” how could a man do that? (Laughter).—If his hair hung over his eyes it would be descriptive. The allusion to Mr. Swinburne was in allusion to his book having been suppressed by the publisher for indecency. The “Session of the Poets” was merely a jeu d'esprit.
“Do you think it desirable to publish to the world statements about Judges going with white hats to Epsom? (A laugh.)
“Mr. Justice Archibald: I hope it is not wrong for a Judge to go in a white hat anywhere; I wear a white hat myself (laughter).
“Mr. Hawkins: Would you call this poetry:— When judges in white hats, to Epsom Down
Drive, gay as Tom and Jerry, folks don’t frown. (Laughter). Is that poetry? You are a better judge than I am?—I should say it is not. What do you say about it?—I do not see anything poetical in it.”
Mr. Justice Archibald, in summing up, gave a few words of advice that might be acted upon by a few writers besides those at whom the learned Judge’s remarks were aimed. He said there was nothing more deplorable than to see men of high ability choosing degrading subjects for their themes instead of others which would not be calculated to stimulate and inflame the lowest and most degrading passions of human nature. He thought that the jury would agree with him that if a great deal of the poetry that had been read, and which had been written by persons belonging to what was called the “Fleshly School,” had never been written at all, or if it had all been committed to the flames, the world would have been much the better for it.
The jury retired to consider the matter; and, after an absence of a quarter of an hour, they returned with a verdict for the plaintiff—damages, £150. __________ A Note on the possible origin of the ‘Fleshly School’ Libel Case In Chapter XVI of Harriett Jay’s biography of Buchanan which deals with the “Fleshly School of Poetry”, Buchanan gives his own version of the events leading up to the controversy: “I published many years ago an article called the ‘Fleshly School of Poetry.’ It created a tremendous stir and provoked endless recriminations, and the question which I am about to answer now is, Was it an honest article, i.e., did it actually represent my honest belief? To answer that question I must refer to the fons et origo of the whole affair. Not long before its publication Mr. Swinburne the poet had gone out of his way to print, in a note to one of his prose essays, an insulting allusion to the friend of my boyhood, David Gray, whose premature death I still mourned deeply. He spoke contemptuously and cruelly of Gray’s ‘poor little book,’ an allusion emphasised, I was assured, by other spiteful comments of the Coterie to which Mr. Swinburne belonged. I showed the note to Lord Houghton; he was much surprised and vexed, and said (I quote his actual words): ‘O he (Swinburne) did this to annoy me!’ Whatever motive inspired the allusion, it seemed to me most ill-timed, offensive, and cruel; and I vowed then and there to avenge it if ever I had the opportunity.” As John A. Cassidy pointed out in his essay, “Robert Buchanan and the Fleshly Controversy”: “Swinburne’s essay on Arnold’s poetry was published in the Fortnightly in October 1867, with a remark in connection with his disapproval of Wordsworth’s doctrine that if a poet were inspired he did not need to master the technique of his craft that “such talk as this of Wordsworth’s is the poison of poor souls like David Gray” (N.S. II, 414-445). There was hardly any malice intended in such a statement and it is difficult to believe that Buchanan could have had his ire aroused by it. But when Swinburne republished this essay in his Essays and Studies of 1875 much fuel had been added to the Controversy and Swinburne’s temper was at such a heat that he appended to this reference to Gray a lengthy footnote in which he attacked the dead poet with the utmost scorn and ill-feeling. In later years when Buchanan was laboring to find some explanation for his attack upon Dante Rossetti he cited this footnote as his provocation (Jay, p. 161). He is unquestionably in error, for his attack antedated the footnote by four years.” So, although it is unlikely that Swinburne’s first mention of David Gray was the cause of the whole “Fleshly School” controversy, it does seem reasonable to assume that Swinburne’s expanded footnote in the Essays and Studies of 1875 was the root cause of Buchanan’s libel action against The Examiner in 1876. The complete text of Swinburne’s Essays and Studies is available at the Internet Archive. The following is the relevant passage from the essay on Matthew Arnold which mentions David Gray, and the footnote: From Essays and Studies by Algernon Charles Swinburne (London: Chatto & Windus, 1875) - “Matthew Arnold’s New Poems” (p. 152-154): “But indeed, as with all poets of his rank, so with Mr. Arnold, the technical beauty of his work is one with the spiritual; art, a poet’s art above all others, cannot succeed in this and fail in that. Success or achievement of an exalted kind on the spiritual side ensures and enforces a like executive achievement or success; if the handiwork be flawed, there must also have been some distortion or defect of spirit, a shortcoming or a misdirection of spiritual supply. There is no such thing as a dumb poet or a handless painter. The essence of an artist is that he should be articulate. It is the mere impudence of weakness to arrogate the name of poet or painter with no other claim than a susceptible and impressible sense of outward or inward beauty, producing an impotent desire to paint or sing. The poets that are made by nature are not many; and whatever “vision” an aspirant may possess, he has not the “faculty divine” if he cannot use his vision to any poetic purpose. There is no cant more pernicious to such as these, more wearisome to all other men, than that which asserts the reverse. It is a drug which weakens the feeble and intoxicates the drunken; which makes those swagger who have not learnt to walk, and teach who have not been taught to learn. Such talk as this of Wordsworth’s is the poison of poor souls like David Gray’s.1 Men listen, and depart with the belief that they have this faculty or this vision which alone, they are told, makes the poet; and once imbued with that belief, soon pass or slide from the inarticulate to the articulate stage of debility and disease. Aspiration foiled and impotent is a piteous thing enough, but friends and teachers of this sort make it ridiculous as well. A man can no more win a place among poets by dreaming of it or lusting after it than he can win by dream or desire a woman’s beauty or a king’s command; and those encourage him to fill his belly with the east wind who feign to accept the will for the deed, and treat inarticulate or inadequate pretenders as actual associates in art. The Muses can bear children and Apollo can give crowns to those only who are able to win the crown and beget the child; but in the school of theoretic sentiment it is apparently believed that this can be done by wishing.” _____ 1 This was a poor young Scotchman who may be remembered as having sought and found help and patronage at the hands first of Mr. Dobell and afterwards of Lord Houghton. In some of his sonnets there are touches of sweet and sincere emotion; but the most remarkable points in his poor little book, and those which should be most memorable to other small poets of his kind (if at least the race of them were capable of profiting by any such lesson), are first the direct and seemingly unconscious transference of some of the best known lines or phrases from such obscure authors as Shakespeare and Wordsworth into the somewhat narrow and barren field of his own verse, and secondly the incredible candour of expression given in his correspondence to such flatulent ambition and such hysterical self-esteem as the author of “Balder” must have regarded, I should think, with a sorrowful sense of amusement. I may add that the poor boy’s name was here cited with no desire to confer upon it any undeserved notoriety for better or for worse, and assuredly with no unkindlier feeling than pity for his poor little memory, but simply as conveying the most apt and the most flagrant as well as the most recent instance I happened to remember of the piteous and grievous harm done by false teaching and groundless encouragement to spirits not strong enough to know their own weakness. It was a kindly but uncritical reference in Mr. Arnold’s kindly but uncritical essay on Maurice de Guérin—an essay of which I have said a few words further on—that upon this occasion for once recalled the name to my mind, and supplied me with the illustration required.
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