[Cross-posted from the OUP Blog) The 1868 decision in R. v Hicklin created a formula for evaluating obscene works that British and American courts would use for nearly a century. Chief Justice Alexander Cockburn, in a succinct phrase that numerous courts would quote, explained that “the test of obscenity is … whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.” Hicklin is often taken as inaugurating a new era in obscenity law, shifting attention away from the author’s intentions, and towards a vague and subjective evaluation of the work’s effects. In fact, obscenity law had always been concerned with effect rather than intention; Hicklin’s real significance relates to the way it describes the power of that effect. Cockburn’s language merely summarizes an understanding that was already widely shared; however, in speaking of the work’s “tendency … to deprave and corrupt” he traced a direct path of influence that, for judges and vice crusaders alike, beautifully explained the efficacy of the obscene work.
Cockburn emphasized the “tendency of the matter charged” because Hicklin was a forfeiture proceeding against Benjamin Hicklin for possessing and distributing obscene books. “The matter charged” was a book called The Confessional Unmasked (an exposé of Roman Catholicism), and the case arose out of an 1857 statute that conferred new powers on the police for seizing and destroying obscene books, leaving any criminal prosecution to the discretion of other authorities.
Indeed, one of the ironies in this historical sequence is that the best-known definition of obscenity stems not from a criminal prosecution against an author or publisher—as many commentators assume—but from a quasi-criminal proceeding against a distributor, with seizure and destruction (rather than penal sanction) as the aim. In a forthcoming book, Modernism and the Law, Robert Spoo discusses the significance of the statute’s forfeiture provisions, which took the texts themselves as the object of the law’s attention, and which seemingly involved a lower standard of proof than would apply in criminal law.
The effects of the work had been the focus of legal attention ever since the earliest prosecutions against obscene works in Britain, in the last decades of the seventeenth century. (Until then, works that were suppressed also included a dose of blasphemy or sedition, and those allegations were generally treated as the more serious ones.) Because of changes in the respective jurisdictions of the church courts and the courts of common law, publications started to be prosecuted solely on grounds of obscenity in the 1680s, and a notable feature of these prosecutions involves their concern for the young persons who might be harmed. The need to protect the young person was an intermittent but pervasive theme of obscenity prosecutions throughout the eighteenth and nineteenth centuries; Hicklin invented neither this figure nor the worry about the effects of corrupting works—but the decision gave succinct expression to that worry, furnishing judges with a pithy formula that summed up the harm.
The final decades of the nineteenth century, as Katherine Mullin has observed, marked a rise in obscenity prosecutions in England, and the defence that the work had “artistic merit”—a defence that the courts had never expressly recognized—was becoming increasingly difficult to maintain. In the late 1880s, Henry Vizetelly was tried twice for publishing English translations of Zola’s novels; after the second prosecution he was imprisoned for three months (when he was nearly seventy). Havelock Ellis voiced the irritations of many writers when, in an 1896 essay on Hardy’s Jude the Obscure, he imagined a crew of finger-wagging censors warning, “Remember the Young Person.”
This was the climate in which Oscar Wilde wrote The Picture of Dorian Gray, published in Lippincott’s Magazine in 1890, and revised for book publication in 1891. The novel frequently ridicules the idea that fiction may have corrupting effects; for instance, Lord Henry Wotton remarks that “the books that the world calls immoral are books that show the world its own shame,” and Wilde asserts, in the preface he wrote for the book, that “there is no such thing as a moral or an immoral book. Books are well written, or badly written. That is all.” But Wilde’s criticisms of the logic of obscenity law went beyond these statements about the sterility of the work of art. According to Hicklin’s conception of influence, the work operates directly on those “whose minds are open to [its] immoral influences,” and at various junctures, the plot of Dorian Gray imagines how this process might occur—and ironizes it. Lord Henry shares his hedonistic philosophy of life (“The only way to get rid of a temptation is to yield to it”), and Dorian immediately finds himself entranced by the “subtle magic” that makes him apprehend “things in his boyhood that he had not understood.” Lord Henry loans him a French novel, and Dorian is rapidly “absorbed” in it, finding it impossible to “free himself from the influence of this book.” With each new corrupt act that he performs, the portrait itself instantaneously registers a change that, according to the novel’s driving conceit, would otherwise have been discernible on Dorian’s body. In each instance, the novel ironizes the idea that these effects might occur in such a rapid and unmediated fashion, rather than in the subtle and circuitous mode that Wilde discusses elsewhere in the novel, and in many of his writings on aesthetics.
Hicklin’s importance lies not in its specification of the work’s effects as the object of the law’s analysis, but in its ability to provide a concise formula (“tendency … to deprave and corrupt”) to express the operation of those effects. In a climate that saw an escalating use of the law to monitor the morality of literature generally, this is precisely the logic that Wilde sought to subvert.
Featured Image Credit: Oscar Wilde by WikiImages. Public domain via Pixabay.
Simon Stern is Associate Professor of Law and English at the University of Toronto. He is co-editor of the OUP series Law and Literature, and the author of “Wilde’s Obscenity Effect: Influence and Immorality in The Picture of Dorian Gray.” published in The Review of English Studies.
