Ross, Trevor. Writing in Public: Literature and the Liberty of the Press in Eighteenth-Century Britain

Abstract

In his important new book, Ross identifies a paradox at the heart of the modern public: “With popular sovereignty, the public acts with supreme authority, but in setting protocols of speech for itself, it paradoxically limits its authority in the very act of exercising it.” Ross traces the origins and consequences of the British public’s redefinition in the eighteenth century as well as the tensions that lay at its core, maintaining that the transformation of the public, first in a liberal and then in a democratic direction, gave rise to a changing role for literature in the public square.Drawing on a wealth of critical and legal commentary, Ross argues that in the eighteenth century, as newspapers and pamphlets replaced works of literature as vehicles of public opinion, literary discourse evolved from its roots in rhetoric, taking on a less utilitarian function. In the pre-modern world, literature defended distinction in every sense—not just the various registers deemed suitable to different rhetorical occasions but the status and class distinctions that underpinned society. In the modern world, however, literature’s purpose became “indeterminate,” just as the public itself grew increasingly diverse. Literary discourse nevertheless supported democracy, albeit indirectly. As the people, formerly dismissed as a rabble, came to embody a more expansive, self-ruling public, literature allowed citizens the full range of expressive freedoms that the public itself had limited in other contexts, whether through the laws of copyright, defamation, or seditious libel.While the broad outlines of Ross’s thesis are clear enough, parts of the argument stubbornly resist a capsule review—the details get messy, and Ross considers every nuance. He devotes a section to each of the legal restrictions just mentioned, exploring the implications of copyright, slander and libel, and sedition for the changing notions of the public, literature, and freedom of the press. The influence of each set of terms was reciprocal: changing ideas of sedition, for example, helped to redefine freedom of the press and vice-versa.Ross begins with copyright and the public domain. In his first chapter, he reviews the contest over the 1710 Statute of Anne’s meaning: London booksellers argued that the act merely reinforced a common law perpetual right in copies; others denied such a common law right or maintained that the Act of Anne had superseded it, thus limiting the copyright term for authors and booksellers and giving rise to a “public domain.” The battle raged until 1774, when the House of Lords overturned perpetual copyright in Donaldson v. Becket.Jurists who opposed perpetual copyright often rested their case on the didactic function of literature and of writing more generally, a “conservative” argument in Ross’s reckoning. A robust public domain ensured the wide availability of books, which served traditional moral ends. Edward Young, however, famously articulated a new, private purpose for literature, according to which the author proved his singular genius. The sparks of brilliance that authors ignited had limited social utility, thus privatizing literature’s ends. The “privatization of improvement” nonetheless extended beyond writers to readers, whom critics like Hugh Blair encouraged to develop individual tastes. The public now comprised autonomous individuals, capable of discernment. Young’s emphasis on originality appeared to bolster the London book trade’s claim to perpetual copyright, as an author’s signature works arguably became his or her permanent property; yet at least in the eighteenth century, Ross contends, the mythology of genius—the myth of the virtuoso sundered from society and its utilitarian goals—in fact undermined the commercial valuation of literature and hence the trade’s argument for perpetual copyright. In the short term, Young’s theory of originality resonated with the “conservative” opinion of Justice Yates, Lord Kames, and Lord Camden, among others, that genius flies above the commercial fray.In chapter 2, “The Fate of Style in an Age of Intellectual Property,” Ross considers the scope of copyright in the eighteenth century, including the idea/expression dichotomy. He observes that the courts granted “wide latitude” to derivative works such as abridgments, sequels, and translations. While some failed to see how different expressions of the same idea conferred property rights, most viewed the craft of written expression as labor worthy of protection. Although the law did not recognize style as property—“style” proved too elusive a concept for the courts to pin down—copyright nurtured diversity of expression, a multeity that would, in time, sustain deliberative democracy. Ross notes that Francis Hargrave, one of Becket’s advocates in the 1774 Donaldson v. Becket case and an early proponent of the “expressive diversity” theory of copyright, may not have understood the democratic implications of his position, but whatever Hargrave’s intentions, the result was a more liberal, democratic public sphere.Ross turns in his second section to the twin ideas of “Defamation and Privacy.” In chapter 3, “What Does Literature Publicize?,” he underlines another paradox embedded in the modern public: only the public can determine what is private and thus beyond the public’s own remit. Between impersonal public discourse and potentially defamatory invasions of privacy lay imaginative literature, which cast personal experience in general terms. Whereas newspapers reinforced the “normative strangerhood” that allowed distance and autonomy in the public sphere, literature fostered empathy and respect for the inner life without encroaching on private lives.Ross complicates this picture by noting that the conceptual shift privileging literary discourse outpaced the law. Literary authors could still be charged with defamation for romans à clef, for instance, or with obscenity for unseemly descriptions of private acts. Joyce, after all, encountered problems with Ulysses in the twentieth century. Yet in the eighteenth century, the courts began to catch up with the culture. Ross homes in on a case of literary shaming from the 1780s that provoked a libel suit from its target. Several authors entered the lists for the honor of a fourteen-year-old girl in Shropshire, whom a retired colonel of fifty-odd years had allegedly raped. Although the writers refer to him in their poetry only by innuendo, the colonel, one Ralph Winwood, filed a criminal libel charge against one of the publishers. Ross points out that even though truth was not “formally” recognized as a defense in criminal libel cases until 1843, Winwood’s poetic antagonist Richard de Courcy highlighted recent cases in which juries had “insisted on their right to determine the truth of an alleged libel”—influenced, perhaps, by the “Wilkesite campaign” to make truth a defense in libel cases. Indeed, in his printed denials Winwood tacitly acknowledged the relevance of truth to libel inquiries. Mansfield dismissed Winwood’s case in February 1783 and “laid the Costs upon the Colonel,” though the battle among the parties continued in the court of public opinion, with Colonel Winwood losing decisively in that arena too.With the passage of Fox’s Libel Act in 1792, the lines between publicity and privacy shifted once again. On Ross’s telling, as the public became increasingly impersonal, private scandal seemed less likely to damage one’s reputation among autonomous strangers. Earlier in the century, judges ruled that “obscene libel” amounted to a libel on the public, which was “both the audience and the victim” of an obscene publication. Now the public itself, as constituted in juries, enjoyed the freedom to decide on the law as well as the facts in libel cases, including trials for obscene libel and seditious libel.In chapter 4, Ross examines the case of a satirical review so devastating that its victim sued the reviewer for defamation. The plaintiff, travel writer Sir John Carr, lost the case. Ross remarks that “[o]f all the genres of public speech, the first to be granted privilege as fair comment was literary criticism.” Carr v. Hood (1808) turned on the question of what counts, legally, as “fair comment.” A wicked parody of Carr’s books had appeared in 1807, “which purported to be the working notes Carr had taken during his Irish travel.” It mocked Carr’s banality, his alleged plagiarism, and his infelicitous prose, even caricaturing the author in its frontispiece. Carr’s publisher, Sir Richard Phillips, admitted on the witness stand that the satire’s warm reception dissuaded him from publishing more of Carr’s work.Judge Ellenborough, however, “repeatedly lectured [Carr’s attorney] Garrow on how the courts ‘must allow a latitude to the free discussion of the merits and demerits of authors.’” In 1793, Lord Kenyon had made similar remarks in a parallel case. Ellenborough expanded on the argument in Carr v. Hood, telling Garrow, “[w]e must really not cramp observations upon authors and their works. . . . [O]therwise, the first who writes a book upon a subject will maintain a monopoly of sentiment and opinion upon it.” Ellenborough cited the example of Locke refuting Filmer as a paradigm of just criticism. Ross concludes that “[m]ore than simply introducing a legal innovation by affirming the principle of fair comment, Kenyon and Ellenborough were granting official recognition to the public sphere.”From personal defamation, Ross turns his attention in the fifth chapter to seditious libel. Whereas formerly the British legal system did not trust jurors to hear sedition in the courtroom and remain impervious to its influence, “[t]he modern belief, which prompted the law’s revision [with Fox’s Libel Act of 1792], supposed that [the rhetorical power of sedition] could never be so great as to defeat the public mind.” Ross goes on to note that “[t]he modern belief . . . entailed an ambivalence that pertains to this day over the place of literature in the public sphere.” Kant frowned upon rhetoric, as it subverts reason, but he lauded the sister art of poetry, which “expands the mind by setting the imagination free.” Yet the proximity of rhetoric, poetry, and propaganda, and the power of words to manipulate and inflame the passions, were sources of ongoing concern.The place of literature in such a political and legal culture was unclear. If, in the first half of the eighteenth century, the Scriblerians and others still engaged public issues in their poetry and fiction, “from the 1760s onward . . . dullness was relocated from Grub to Fleet Street,” from the tripe of the poetasters to the periodical press. Critics dismissed topical literature as ephemeral, trivial; great works of art were timeless. In this new (or resurrected) conventional wisdom, writers as diverse as Charles Campbell, George Crabbe, Wordsworth, and Shelley joined hands.Kant hived art and literature off from the public sphere for a somewhat different reason: to neuter the rhetorical power of poetry while leaving the imagination free. Yet Ross discerns an important, semi-public role for literature in the modern world. Literature appears to smooth over the paradoxes inherent in the modern public and to fill in the cleavages of the liberal, democratic public sphere, thus serving a mediating function between the public and private realms. Trying to carve culture at the joints—public/private, law/liberty—results in intolerable tensions. Imaginative writing eases some of these by providing an outlet for the public to exercise its intellectual freedom. The poet George Dyer went further, designating “the theater, the debating society, and the political assembly” as venues where the public should have relatively free rein. But literature’s “indeterminacy,” its refusal of coercive rhetoric, its freedom from the yoke of public norms, its lack of immediate purpose, distinguishes it from all other discourses, including law. Literature—uniquely—helps to define the identity of the modern public while also, paradoxically, leaving it indefinable; the public is ever free, through literature, to reimagine itself. To put it perhaps too simply, law binds language, but literature sets it free.If some of Ross’s ideas sound prosaic or old-fashioned, I have not done them justice. His is not a potted history. His chronological range is impressive, as is his command of the legal literature. A discussion forum [https://cal.library.utoronto.ca/index.php/cal/issue/view/2250] dedicated to Writing in Public appeared in December 2019, a testament to the book’s significance. Some will quarrel with Ross’s terms: his definition of “the public,” his promiscuous use of the word “literature,” his description of eighteenth-century Britain as “liberal” and “democratic.” His argument, however, is generally convincing, and Ross does the hard work of showing how the past bears on the present.But the book presents challenges to even a patient reader. Ross alternates between rigorous specificity and rarefied abstraction, a method that often works to reconcile the empirical evidence with his larger claims but that can also prove disorienting at times. He delineates the history of the period not so much dialectically as through a stemma of paradoxes, revealing the complex development of categories like “literature” and “the people,” yet his method also ramifies lines of argument in ways that can prove frustrating, making it difficult to follow the main thread of each chapter. Indeed, some of the tensions and paradoxes that Ross pretends to discover in liberal democracies seem Zen kōans of his own creation.Nonetheless, Writing in Public is the product of an able mind; Ross grinds out every facet of the problems that come under his lens. His relentless deconstruction of “literature,” “the public,” and a “free press” makes for illuminating, if sometimes difficult reading. It is worth the effort.