Stern on "Fanny Hill" and Obscenity Law

Simon Stern, University of Toronto Faculty of Law, has posted Fanny Hill and the 'Laws of Decency': Investigating Obscenity in the Mid-Eighteenth Century, forthcoming in Eighteenth-Century Life 40 (2016):

This essay discusses John Cleland's novel The Memoirs of a Woman of Pleasure (1748/9, better known as Fanny Hill), in the context of eighteenth-century obscenity law and the law of search and seizure. To explain why obscenity could have been treated as a criminal offense at all, the essay discusses prosecutions against writers and actors from the later seventeenth century through Cleland's time, showing how the criminality of the offense was taken for granted (circa 1670-1700), then rejected (in 1708), and then rationalized (in 1727). Cleland's novel, notable for resorting to metaphorical and euphemistic language so as to avoid "rank words," was nevertheless easily covered by the rationale offered in Curll (1727), but his case was never brought to trial. While some have thought that this circumstance is mysterious and requires explanation, in fact obscene works were rarely prosecuted at this time, and the decision even to begin proceedings against Cleland is more notable than the decision not to go to trial. Cleland implied, in some of his letters, that he believed his circumlocutory language should have excused him from prosecution, but his stronger argument would have involved the process that led to his arrest: the investigation proceeded by means of a general warrant, a device that would be criticized in the litigation after the 1763 Wilkes prosecution, which in turn influenced the prohibition against unreasonable searches and seizures in the Fourth Amendment to the US Constitution. Along the way, the essay discusses several famous but inaccurate claims about the prosecution of Cleland and his publishers (e.g., that Cleland was paid to stop writing obscene novels, and that his publishers made a fortune from the book), and also includes a list of eighteenth-century editions of Fanny Hill.