TROTT v. TULIP (Before Mr. Justice WOOL) [is 'Highbrow' Defamatory?]

 [This action for defamation was today brought a stage nearer to its conclusion with the closing speeches of counsel and his Lordship's summing‑up to the jury. This was the twenty‑seventh day of the hearing.]

 HIS LORDSHIP (addressing the jury): In the whole course of my professional career, which has included, necessarily, many warmly contested claims for defamation of character in many different fields of society, I do not remember one which with such an appearance of simplicity has revealed upon examination such sharp and complicated differences, supported, may I say, by such stubborn animosities.

 The facts are simple enough. The parties both belong to what is called the literary world, and in that world are sufficiently well known, Miss Clelia Trott as a writer and Mrs. Tulip as a critic of original works of fiction. You were invited by the plaintiff's counsel to consider upon a somewhat higher plane the activities of Miss Trott, which are admittedly creative, than those of Mrs. Tulip, as being chiefly occupied in tearing to pieces the things which other men have made. But this distinction, however attractive to the lay mind, I must ask you to dismiss from your own. In many ponderous and ill‑drafted enactments our ancestors have been careful to secure to the most repellent of the King's subjects the common rights of free expression so long as it takes the harmless form of venomous and enraging words. How far this is just to those of our fellows who are unhappily unable to express their indignation except by blows it is not for us to inquire. And how far that condition of suppressed fury which follows a verbal but unactionable assault is socially more desirable than the healthy breach of the peace which follows a blow is also not within the scope of this inquiry. I mention these matters only to confuse you and to display the superior alertness of my intelligence. It is enough for you that before the law, at any rate, a literary or dramatic critic is as good and useful a citizen as an original author, and is entitled to the same measure of justice, if he can get it.

The Facts of the Case

The facts of this case are simple enough. The defendant, Mrs. Tulip, in reviewing a recent work of Miss Clelia Trott's, a book called Midnight, employed the following words: 'It is no good, Miss Trott. All your murders and detectives, your vamps and mysteries, do not deceive us, charming though they are. The truth is, Miss Trott, you are a bit of a highbrow.'

Miss Clelia Trott, so far from being disarmed by the sprightly and almost complimentary manner of the review, has brought an action for defamation, complaining particularly of the word 'highbrow', which is said to have prejudiced her professionally as a writer of disturbing narratives for railway reading or, as they are sometimes called, it appears, 'best‑sellers'.

The law of libel is exceedingly complicated and wholly unintelligible.... [His Lordship here gave a brief explanation of the law of libel, beginning with the Star Chamber.]

HIS LORDSHIP (continuing): The question of malice is a question of fact for the jury to determine, and the jury alone. The evidence which we have heard and the demeanour of the defendant in the box leave no doubt in my own mind that the word complained of was prompted in fact by legal malice and spleen; but it will be for you to say. Far more difficult, in my opinion, is the question, 'Is the word "highbrow" defamatory or not?' and this question also, I am glad to say, it will be for you to answer, though you will be paid one guinea for the twenty-seven days of this trial, and I am paid five thousand pounds a year.

Expert Testimony

We have had in this case the advantage of the expert testimony of nineteen well‑known writers and authors, fourteen literary critics, seven editors, and two philologists. And the one thing that emerges from this mass of informed opinion is that the expression complained of must be the most remarkable word in common use to‑day. For though each of these authorities came prepared with a full and impressive theory of the origin and significance of the word, no two of these explanations were in any respect the same. Moreover, at the first hint of opposition or disagreement these ladies and gentlemen, almost without exception, betrayed a degree of passion and obstinacy remarkable in persons devoted to the contemplative way of life, and so excessive as to make the extraction of useful information by process of cross‑examination impossible.

If, therefore, we were to place any reliance upon the expert evidence (which, fortunately, it is not the habit of these Courts to do) we should be forced to the conclusion that the word 'highbrow', having a different meaning in the mouth of every authority, has in fact no meaning whatever, and you might well find that to employ such a term in connexion with another person could not be defamatory; as one might say to another, 'You are a Bumbo', or 'You look like a Togg', without offence; for these expressions, though presumably hostile in intention, have no known significance, discourteous or otherwise. But you, members of the jury, may not so easily escape from your responsibilities. Somehow or other you are to answer the questions which will be put to you in the affirmative or in the negative as the case may be. And for this purpose you will do well to ignore for the most part the nebulous testimony of the literary gentlemen who have stood in that box before you.

The Defendant's Argument

Now, it is urged by the defence that the word 'highbrow' was invented by an American journalist (who has not been called by either side) to express his natural surprise on his observing that there were persons about him more richly gifted than himself; that it means no more than one who is superior in intelligence to the average of his (or her)*fellows, and is therefore, so far from being libellous, a complimentary expression, as against the opposite term 'lowbrow', which is said to signify a person having a low or shallow forehead and comparable in aspect and in mental development to an anthropoid ape.

According to this theory the human race is roughly divided into two main species, the high‑brow and the low‑, and no person whose profession it is to provide printed reading for his fellow‑men can complain with reason of being included in the former category. On the contrary (according to the defence), to say of an author that she is a highbrow is as much as to say that 'she has more brains than a monkey, and indeed than many men', and is therefore, at any rate, a statement pleasantly intended.

The Plaintiff's Argument

For the plaintiff, on the other hand, it is urged that though this may well have been the origin of the term it has acquired by popular usage a definite, or, at any rate, a definitely offensive, significance. The witnesses who supported this view (so far as any witness may be said to have supported anything in particular) seemed to suggest that highbrow means not merely a person of superior intelligence but one who is offensively conscious or indeed boastful of his (or her) superiority. And they employed, with a warmth which I was not always able to restrain, various expressions of an ethical or moral significance, such as 'prig' and 'Pharisee'. One witness indeed went so far as to describe a highbrow as an 'Intellectual Pharisee', and you will remember, no doubt, the disorderly scene which followed.

According to this theory the divisions of the human race are not two, but three ‑‑ the lowbrow, the high‑lowbrow, or broad brow (or those of an intelligence and tolerance superior to the average), and the highbrow, who, though not necessarily more gifted than the second class, has in an intellectual sense the defects of character or outlook sufficiently suggested by the expressions 'prig', 'Pharisee', and 'smug'. The existence of such a class, it is contended, is a matter of popular tradition, however small it may actually be; and the mere suspicion of the highbrow taint is enough to alienate from public favour a writer with the peculiar appeal of the author of Midnight and Two in Pyjamas. One witness, Mr. Snood, who controls, I understand, a number of railway bookstalls, told us that he is in the habit of selecting the books to be displayed upon his stalls by a scrupulous examination of the 'dust‑covers' or paper wrappers. And he went so far as to say that he can tell at a glance from the picture on the dust‑cover whether the book which it conceals is healthy and suitable for the general public, on the one hand; or highbrow and not so, on the other.

His Lordship's Comment on these Contentions

We have, therefore, these two opposing interpretations of the disputed word 'highbrow' ‑‑ first, that it is laudatory and signifies intelligence; and second, that it is insulting and signifies intelligence plus arrogance (and, according to the witness Frankau, plus long hair as well; or, if we adopt the words of the witness Vines, plus long hair, anaemia, and moral flabbiness).

Now, if there is any substance in the former contention, we should expect to find among the members of the literary craft an eagerness, or at least a readiness, to be named by this name, for, though few writers lay claim to moral excellence, they have all, I take it, a certain confidence in their own Intelligences. On the contrary, however, though every author who gave evidence was able without hesitation to name at least one among his contemporaries as a highbrow, I observed a curious reluctance, even in those writers who professedly cater for the educated orders of society, to be themselves considered highbrows. In fact, we may here again detect a parallel in the field of morals, for all men are proud of their purity, but few will accept without demur the title of a Puritan.

Some Testimony Reviewed

It may be well to remind you of certain passages in the evidence which bear upon this part of the case. Take, for example, the witness Frankau:

COUNSEL: What do you mean by a 'successful' novelist, Mr. Frankau?

WITNESS: I mean twenty thousand.

COUNSEL: Twenty thousand novelists, Mr. Frankau?

WITNESS: A sale of twenty thousand.

COUNSEL: In your opinion is it possible for a highbrow to be successful in that sense?

WITNESS (decidedly): Quite impossible. He may be a successful highbrow, but a successful novelist ‑‑ never.

COUNSEL: Why not?

WITNESS: There is no red blood in him. The people want red blood. Red corpuscles. He‑men. You never saw a highbrow sitting a horse.

COUNSEL: Is that a fair test of literary merit?

WITNESS: It is the test of a Man.

COUNSEL: You are a person of high intelligence, Mr. Frankau?

WITNESS: One of the best.

COUNSEL: Then you are not a highbrow?

WITNESS: God forbid!

COUNSEL: Can you name any highbrows?

WITNESS (rapidly): Mr. Shaw, Mr. Bellow, Mr. Squire, Mr. Murry, Mr. Galsworthy, Mr. Drinkwater, Mr. Lawrence, Mr. Noyes, Mr. Huxley, Mr. Joad, Mr.

COUNSEL: That will do for the present. Is Mr. H.G. Wells a highbrow?

WITNESS: No. I can see Mr. Wells sitting a horse.

COUNSEL: Can you not see Mr. Shaw sitting a horse?

WITNESS (laughing): Absurd!

COUNSEL: In your opinion, was William Shakespeare a highbrow?

WITNESS: No; he made good.

This witness therefore, makes two distinctions: (a) between the highbrow and the successful, and (b) between the highbrow and the author who can without merriment be imagined astride of a horse. How far this is helpful will be a question for the jury.

More of the Same

... He was followed by the witness Shaw, an extremely skittish old gentleman, who seemed to have no idea of the procedure, purpose, or indeed the dignity, of a court of law:

COUNSEL: In your opinion, Mr. Shaw, what is the nature of a highbrow?

WITNESS: Everybody is a highbrow. The question is nonsense. Only a civilization which spends more on vaccination than it spends on the theatre, and is more excited by a battleship than by an elementary school, could have given birth to such a word. THe filthiest peasant in Russia and the stupidest statesman in Whitehall are both highbrows, because each of them knows another man who is more foolish than himself, and that man knows it. The only person alive who is not a highbrow is the stupidest man in the world, and you will find him in Harley Street, Downing Street, or ‑‑‑

COUNSEL: Stop a moment, Mr. Shaw.

WITNESS: Why should I stop a moment? You brought me here, presumably, to advertise myself, and advertise myself I will. There is only division of the human race ‑‑ the civilized, who appreciate my plays, and the barbarians, who don't.

With these words the witness left the Court, and only his obvious inability to furnish useful information on any subject whatever prevented me from having him forcibly brought back.

Still More

We then had the assistance of a Mr. Haddock, who told us that he was a humorous writer, but produced no evidence to support the statement. He was asked: In your opinion is 'highbrow' an offensive word?

WITNESS: Undoubtedly.

COUNSEL: Have you been called a highbrow, Mr. Haddock?

WITNESS: Once.

COUNSEL: And you resented it?

WITNESS: Bitterly.

COUNSEL: Can you give us any idea of what you mean by a highbrow?

WITNESS: A highbrow is the kind of person who looks at a sausage and thinks of Picasso. She thinks life is nothing but a frame for art. You cannot talk to her about the weather. She has no soul for detective stories. She cannot swim. She reads in the bath. She ‑‑

COUNSEL: One moment, Mr. Haddock ‑‑

WITNESS: She quotes French writers at breakfast. She has just read a book which you have not. She tells you so. She cannot understand the attraction of chorus girls. She would rather her daughters were brainy than beautiful. She has no sense of humour.

COUNSEL: But. Mr. Haddock ‑‑ ?

WITNESS: Wit, sometimes, but no humour. She knows too much. She talks too much. She takes no exercise. She does not care if it snows. She drinks too much coffee. She does not care for the Colonies. Her soul is in Florence. She cannot cook. She would be at a loss in a conversation with a bookmaker. She ‑‑

COUNSEL: But is the jury to understand, Mr. Haddock, that in your opinion the highbrow is necessarily of the feminine gender?

WITNESS: Of course. It is one of the special diseases of women.

COUNSEL: But are there no highbrows among men?

WITNESS: There are, of course. There are many feminine men, Sir Etheired.

At this point I directed the witness to leave the box. It is fortunate, perhaps, that the plaintiff in this case is a woman, for this makes it unnecessary for us to find an answer to the difficult sex question which was raised by Mr. Haddock.

The Conclusive Witness, and Why 'Highbrow' is Defamatory

The various obsessions of these authors, young and old, modern or out of date, however interesting in a medical sense, are singularly sterile for the purposes of this Court. But from this and other passages with which I will not weary you we may safely conclude, I think, that the word highbrow, though devoid of any exact scientific significance, has even in literary circles the general force of an abusive term; and it may not inaptly be compared with a boomerang flung by a savage, of which the direction is often uncertain, but the intention behind the throw is seldom in doubt; moreover, in the end it is as like as not to do as much injury to the thrower as to the target.

This opinion is fortified by the evidence which we have had from lay or non-literary quarters. The witness Vines, for example, a major, was crystal clear. The genus highbrow, in his view, has many species, but all are vile. Moreover (which is unusual), he has seen these monsters in the flesh. They are banded together, he assures us, in secret or semi‑secret societies, which have no other purpose than the performance of indecent plays on the evening of the Lord's Day; they are distinguished in the males by long hair, Malacca canes, and curls, and in the females by tortoise‑shell glasses, Spanish shawls, and shapeless Oriental garments; they have no contact with the life of the people, are incapable of cricket, unacquainted with golf, are wholly without patriotism or decent feeling, and openly praise the so‑called artistic works of unknown French and Italian painters whose moral character, it is to be feared, is too often as dubious as their own. This witness gave his evidence in a manly and straightforward way, and to my mind it is convincing. The picture which he drew of the observances of these creatures is so revolting that no lady or gentleman of right feeling could well submit to be named by their name without some effort to secure such protection as the law affords. And I am satisfied that on that point at least the plaintiff has make good her case.

NOTE: the jury found for the plaintiff, in the sum of 1d.