Choosing Representative Cases from Many; Or, Privilege & Prejudice in 1865 Liverpool.

Choosing Representative Cases from Many; Or, Privilege & Prejudice in 1865 Liverpool.

The Reverend James Kelly of Liverpool was not well liked. His spat with the church’s organist was bad enough, but Kelly’s diatribes against city officials drew public attention to this pugnacious – and litigious – clergyman. Seemingly anxious over the fate of Anglicanism, Kelly – who preached about the Protestant martyrs of Bloody Mary’s reign to a new generation – balked at the appointment of a Roman Catholic priest as chaplain in one of the city’s jails and railed against voters who had returned Liverpool’s first Jewish mayor that same fall. Not content to issue commentary from the pulpit, Kelly broadcast his opinions in the local newspapers.

While a number of local papers followed Kelly’s squabbles with local notables, Randall Sherlock’s Liverpool Mail did so with particular glee. Under the heading “Irish Scandal at St. George’s Church,” the weekly newspaper detailed the “wolfish”-ness of Irish clergy. It began with a diatribe against the Irish clergy in general and then proceeded to describe the barbarity of Kelly using the church for “potato-boiling” and his penchant for brawling (typical of Irish stereotypes as well) [1].

This fusillade of ethnic stereotypes did not even attempt a pretext of defending Catholics from Kelly. The attack on Kelly ran next to a column decrying fanatical Roman Catholic priests “running mad” overseas. Sherlock tried to apologize later. Kelly was unsatisfied, however, and sued. He won, but the jury awarded him a symbolically negligible single farthing. Kelly appealed for a new trial, believing himself entitled to higher damages. The justices of the Queen’s Bench disagreed.

I love the point in research where one gets to immerse oneself in a single case for some time. While this can happen regularly with high profile cases, it is rarer in the cases of ordinary men and women. Indeed, piecing together the ins and outs of a defamation case is not easy at all. Those which appear in law reports can contain more about precedent than on the case itself. Newspaper coverage can be as terse as a few lines, or can stretch out over multiple articles for months – even years – on end. Reconstructing a case can entail a great deal of additional research, and this is simply not feasible to do for over 600 cases. It’s as I concentrate on a cluster of cases that seem to illustrate a broader phenomenon that I really get to plunge into the weeds. I zeroed in on Kelly for an upcoming conference paper initially for pragmatic reasons; I knew that, in addition to the law report which I had in my electronic file, there were a further 80+ articles about the Rev. Kelly in the British Library Newspaper Database. There’s often quite a bit to be unpacked even from a few lines about a trial. There is all the more to be uncovered when one has not only 80 articles, but seemingly verbatim coverage of the trials among them.

If I were telling a history of case law, I would address the two legal issues at issue in Kelly v. Sherlock. First, the Queen’s Bench found that they had no standing to allow for a new trial solely on the basis of insufficient damages. That would illegitimately circumvent the jury’s role. Second, the judge at the assize level provides a particularly eloquent defense of a clergyman’s privilege of preaching to his flock as he sees fit. His phrasing would be republished in legal text books for years [2]. I suppose these points will make their way into my account, but I, like many of you, am more interested in the case’s implications for society at the time. I am want to explore through newspaper and legal reports how a community works out norms of proper authority and the acceptable limits on stereotyping. Here, as in quite a few cases involving the clergy, the question centered on the authority of the pulpit and the privilege (even the duty) of the clergyman (as opposed to the newspaper) to criticize different social groups as a whole. Was Kelly’s behavior a proper subject of public interest (as Sherlock claimed)? Even if it were, what were the boundaries between proper discussion and malice or ridicule?

During this period, standards for legal judgment of such cases were beginning to crystalize. That is important. More interesting still, are the disagreements, however, as one finds in the columns of the newspaper, among judges and juries, and between trials. It is in these moments that one finds critical tensions over who gets to constitute community, its boundaries, and the language that helps to keep it in balance. Perhaps not surprisingly, more elite commentators seemed embarrassed by both Kelly and Sherlock—though Kelly especially. His brand of evangelicalism did not sit well with those who prized cosmopolitan rationality and were more accepting of religious heterodoxy in civil society [3]. Elite commentators themselves were not entirely enlightened, however: keen to distance themselves from Kelly’s bigotry, these commentators attributed it to the “hot-blooded” Irish. Sherlock lost his case because his diatribe against Kelly the individual descended to ridicule; but more genteel anti-Irish stereotyping, which suffused a good portion of those 80+ articles, remained within the bounds of community acceptability [4].

[1] “Irish Scandals at St George’s Church”, Liverpool Mail, February 6, 1864, p. 5. The newspaper continued the diatribe a week later: “Irish Scandals at St George’s Church, No. II”, Liverpool Mail, February 13, 1864, p. 5.

[2] 686 Kelly v Sherlock, Queen's Bench Division, 13 June 1866, (1865-66) L.R. 1 Q.B. 686. See, for example, John Townsend, A Treatise on the Wrongs Called Slander and Libel and on the Remedy by Civil Action for those Wrongs, (London: Steven & Haynes, 1868), p. 354-355.

[3] See, for example: “The Finance Committee,” Liverpool Mail, April 9, 1864, p. 4; and “When a man embarks on a sea of controversy…,” The Englishman, November 5, 1864, p. 5.

[4] “The Rev. James Kelly,” Pall Mall Gazette, August 16, 1865, p. 1.  

--Caroline Shaw

Thoughts from the Trenches: How to Make the Longue Durée Manageable

Thoughts from the Trenches: How to Make the Longue Durée Manageable

In 1967, the Lord Chamberlain’s Office refused to license German playwright Rolf Hochhuth’s new play, Soldiers: An Obituary for Geneva, for London’s National Theatre. The play, which decried strategic bombing during WWII, also held Winston Churchill responsible for the death of Polish General Sikorski. Sikorski had led the Polish government in exile and died in a plane accident off of British Gibraltar in 1943. Citing concerns for the Churchill family (Churchill died in 1965), the LCO first hedged on offering the license, then refused it. It would be one of the LCO’s last decisions before the end of theatre censorship in Britain the following year.

The play became the subject of intense external scrutiny for the better part of two years; libel suits stemming from the play extended the debate into the 1970s. The controversy pitted a self-professed new generation of Britons against older board members, a number of whom had not only fought in the war but were personal friends of the Churchill family. Was the play a libel on Churchill’s memory? On the nation and those involved in the war effort? Was personal reputation sacrosanct enough to justify censorship? Whose account of history was even right in the first place? And whose story was this to tell?    

Then Director of the National Theatre, Sir Lawrence Olivier, eventually backed away from the play, though the National Theatre’s Literary Director, Kenneth Tynan, continued as Hochhuth’s champion. Tynan eventually staged the play at another theatre in December 1968. The play ended up being performed in London for only a few months. The Churchill family never sued for libel, but others involved in the account of the crash did. As Tynan’s biographer notes: focused on the end of theatre censorship, Tynan had not taken into account a simultaneous strengthening of the laws of defamation [1].

When heading to London earlier this summer, there was but one single mention of Soldiers in my list of archives to see at the British Library. I knew there was some issue of libel involving Churchill, but nothing more. The case does not feature in accounts of defamation law. Indeed, the Churchill family never sued and, as I have learned since, the suits that were filed did little to influence case law. Yet, the play has quickly become a central example for my project. Beyond its intrinsic narrative interest, the Soldiers controversy enables me to tackle the interrelated threads of a very big project whose scope requires taming. Finding the case was thus something of a relief; but it was a studied find, not just a lucky one. I’ll try to explain what I mean so as to offer some suggestions about managing what can seem like ever-proliferating narrative threads when undertaking a new topic.

*          *          *

For my dissertation and first book, I read every item with “refugee” in the title I could find in the British Library catalogue and in the National Archives at Kew. From there, I worked to establish whom Britons identified as refugees over time as well as key turning points in the use of the category. Zeroing in on these moments, I extended my research on these cases in other archival and periodical sources. The research for Beyond Sticks and Stones has tested this method to the extreme. I could not hope to read everything in the British Library on reputation. How would I even find those pieces? The topic is simply too large and nebulous. What nineteenth-century novel does not hinge on matters of reputation or attempts to know character? All court cases involve “libels” – or charges. “Defamation” itself regularly refers to attacks on personal character, and seditious, blasphemous, and obscene libel. So, what to do…?  For me, the answer lies in sampling primary material early and, through those early samples, establishing initial patterns and breaking the project into more manageable pieces.

Once I had my initial research question -- What shaped the quasi-right to personal reputation? -- I began to build my bibliography and to read the secondary literature on defamation and reputation. While this is critical, to be sure, secondary reading cannot be done in isolation from primary material when defining a topic of one’s own. I start with a patch of evidence that I hope will help to establish the parameters of my subject, seeing how contemporary actors wrote about it, not just scholars in the years since.

1.     Sampling. Unable to read everything on reputation, I began with a sample from the Times of London. Over several months, I read all editorials and correspondence with the keywords “defamation,” “slander,” “libel,” “calumny,” and “reputation” between 1785, when the newspaper began, and the present. This task familiarized me with the major controversies over reputation over the past two hundred and fifty years, when the defense of reputation became a topic worthy not just of law reports, but of mainstream public commentary. I could derive from this a working timeline as well as basic patterns of debate.    

2.     The Fields of Scholarship. There are histories of the defense of reputation, but they are piecemeal. In British history, one finds key elements in accounts of privacy, celebrity, scandal, and of the media more generally. Even in the few legal histories of defamation, authors have tended to separate out different elements. We have books on obscene libel and on blasphemy, as well as a large literature that examines seditious libel and radical reform. Within the few texts on personal defamation, chapters tend to take aspects like fair comment, slander, and damages to write about their evolution separately. Sampling primary material helps, I find, to see better which seemingly separate swatches of scholarship are actually part of the same broader public conversation. This work itself ramifies, of course. I did not know when I first read that subset of Times commentary in 2016 that by 2019 I would need to track down literature on the Lord Chamberlain’s Office.

3.     Making Selections, Establishing Core Points. The task of the historian is not that of the chronicler and it shouldn’t be, even if the list of patterns and key moments were well-behaved enough that they could be included in a single volume. We seek explanations of change over time. I only half tease my students that they need to ban the words “also,” “additionally,” “furthermore” and so on – the connectors that so often stand in for stepping back to make a coherent argument. To change history by narrative accretion into history as explanation, the task is to organize chapters around the core episodes that move the argument along thematically and chronologically. This takes time and, for me, usually involves writing through several cases at a time, brainstorming comparisons along the way to help forge a compelling argument from a list of cases, points, or threads. I still remember vividly the day I first read about the Fugitive Slave Circulars for my dissertation in the summer of 2005. The contest over these Circulars crystallized issues of right, intervention, humanitarian need, and the very nature of life in British asylum and helped furnish a key turning point in my account of modern refuge. I had a hunch that I could use the material as a tool for thinking through the project as a whole. Indeed, I used it as one of my earliest conference papers and, later, for fellowships and the job market. It is still early, but the 1967-1968 question of whether to stage Soldiers feels like it has similar promise. 

Notes:

[1] Dominic Shellard, Kenneth Tynan: A Life (New Haven: Yale University Press, 2003), p. 314. 

--Caroline Shaw