Lex Scripta

For over a century, no lawyer called upon to advise a potential prosecutor or plaintiff in defamation proceedings can entirely discount consideration of Oscar Wilde's terrible fate. The client who institutes such proceedings - whether criminal or civil - invites enquiry regarding his or her own conduct. Few members of the community live such blameless lives that they can face such scrutiny with complete equanimity. The Wilde case is perhaps an extreme example of the perils inherent in suing for defamation, but similar examples may readily be drawn from recent history, in Australia and elsewhere.

As noted above, Mr. Justice Wills commented in his charge to the Jury at the second indecency trial that Queenberry's missive left Wilde "no alternative but to prosecute, or be branded publically as a man who could not deny a foul charge". Perhaps His Lordship had not closely examined the transcripts of the libel trial. But, with respect, his remark was not only naive - it was plainly wrong.

A most extraordinary feature of the first trial - Wilde's prosecution of Queensberry for libel - is that there plainly was no harm to Wilde's reputation, nor any potential for harm, arising out of Queensberry's conduct. The first witness was the hall porter, Sidney Wright, whose evidence was that:

There are three cinema portrayals of Wilde's life, two released in 1960 with Robert Morley and Peter Finch, respectively, in the central role, and the 1997 movie starring Stephen Fry. In the first of these, the hall porter is shown to consult a dictionary regarding the meaning of the word inscribed on Queensberry's card. This did not happen; and it would have been extremely difficult, in any event, due to the mis-spelling.

In fact, Sidney Wright was not cross-examined, as his evidence could not have been more favourable to the defence. Only three people ever saw the card, until Wilde chose to make it the subject of a libel prosecution: Queensberry, Wilde, and a man to whom it meant no more than if he had been blind or illiterate, or if it had been written in code or a foreign language.

One may wonder, indeed, how there was any libel at all, given that the words on Queensberry's card were not made known to anyone who understood them, other than the prosecutor and the defendant. As Lord Esher MR said in Pullman v. Hill & Co, [1891] 1 Q.B. 524 at p. 527:

However, since early in the Seventeenth Century, the law had permitted a criminal prosecution for publication of a libel to the person defamed, even though no civil action lay in such circumstances: Edwards v. Wooton, (1607) 12 Co.Rep. 35. The rationale for this apparently bizarre rule is that, whilst publication to the person defamed cannot harm his reputation, and therefore does not sound in damages, it may provoke a breach of the peace, and is therefore a matter of concern to the criminal law: R. v. Wegener, (1817) 2 Stark 245; R. v. Adams, (1888) 22 Q.B.D. 66. Thus the evidence of Sidney Wright was sufficient to make out a prima facie case of defamation, although not to support the suggestion of Wills J. that Wilde was given "no alternative but to prosecute".

In the period leading up to the libel trial, Wilde received much good advice which he ignored. In his prison letter to Lord Alfred Douglas, later published as De Profundis, Wilde recognised that "those of my friends who really desired my welfare implored me to retire abroad, and not to face an impossible trial". Those who offered such advice to Wilde included George Alexander, a leading actor in The Importance of Being Earnest, and manager of the theatre at which it was still being performed. In response to the suggestion that people might consider it in bad taste to attend Wilde's play in the circumstances, Wilde remarked: "I would consider it in bad taste if they went to see anyone else's play". Encouraged by Alexander to withdraw from the case and go abroad, Wilde replied: "Everyone wants me to go abroad. I have just been abroad, and now I have come home again. One can't keep going abroad, unless one is a missionary, or, what comes to the same thing, a commercial traveller." Similar advice was offered by the journalist Frank Harris, one of Wilde's most staunch supporters, and by George Bernard Shaw. But Wilde would only listen to Bosie Douglas, whose determination it was to exact revenge against his father vicariously through Wilde's prosecution.

Sir Edward Clarke, QC

That Wilde chose to ignore the urgent remonstrances of his oldest and dearest friends is one thing; but what advice was he receiving from his own legal representatives? In notes written with a view to inclusion in his autobiography, but not published during his lifetime, Sir Edward Clarke sought to distance himself from the greatest blemish in a distinguished career: " I need hardly say, wrote Clarke, I had nothing to do with the institution of that prosecution". As verified more than 50 years later by one of Clarke's juniors, Travers Humphreys - who subsequently became a judge of the King's Bench Division and was knighted - Wilde provided solemn assurances of his innocence both to his solicitor, Mr. Charles Humphreys (father of Travers Humphreys), and to his leading counsel, Sir Edward Clarke. At their first meeting, the latter said: "I can only accept this brief, Mr. Wilde, if you can assure me on your honour as an English gentleman that there is not and never has been any foundation for the charges that are made against you". Wilde did not (as the story has since been embellished) remind Clarke that he was actually an Irishman; but he solemnly declared on his honour that the charges were "absolutely false and groundless".

Thus it may be seen that Wilde's lawyers did their duty, and perhaps more than their duty. The single question most commonly asked of lawyers by non-lawyers, on social occasions, is how they can represent clients whom they know to be lying. The usual answer is that which Wilde's lawyers could conscientiously have offered: they did not know that Wilde was lying. They may have had doubts or suspicions - they may even have disbelieved him - but they did not know.

Clients are entitled to have contentious issues of fact determined by the appropriate tribunal, and it is no part of a lawyer's duty to judge the truth or falsity of a client's instructions. A lawyer who doubts the client's veracity may, and should, offer appropriate advice; and, if the circumstances warrant it, the advice may be couched in very robust language. Ultimately, however, lawyers are bound by their clients' instructions.

This is all very well in theory. But the chance which Wilde was taking was a truly fearful one. The upside, if the prosecution succeeded, was slight; the downside, in the event of Queensberry's vindication, was overwhelming. The client was not unintelligent, nor totally unreasonable - as is evidenced by the fact that he was ultimately persuaded to drop the prosecution, albeit too late to save himself from the consequences. Could more have been done - should more have been done - to save Wilde from ruin?

It is sometimes suggested that the conduct of which Wilde was accused was regarded with such abhorrence in late Victorian England that Wilde's lawyers could not have been expected even to suspect that it might be true. Clarke, in opening Wilde's case against Queensberry, referred repeatedly to "the gravest of all offences", as if sexual relations between consenting adult males in private was, by an order of magnitude, a greater abomination than murder or rape. But it is perfectly impossible to believe that a counsel of Clarke's experience - Clarke was then aged 54, had been a barrister for almost 30 years, had served as Solicitor-General for 6 years, and was one of the undisputed leaders of the Bar - was blissfully ignorant of such matters. Travers Humphreys - Clarke's second junior, and son of his instructing solicitor - later recounted that:

The various cinema representations of the libel trial create the impression that Wilde, and also his legal representatives, were taken by surprise when Carson's cross-examination moved from literary subjects, and Carson proceeded to put to Wilde the details of numerous encounters with a variety of young men. In truth, however, there was no element of surprise. Prior to the trial, Queensberry's solicitors filed a Plea of Justification, signed by one of Carson's juniors. It contained chapter and verse, identifying each of the witnesses who subsequently testified against Wilde, specifying dates and places at which sodomy and other acts of gross indecency and immorality allegedly occurred. Then, as now, counsel could not properly have signed such a document without clear and cogent instructions supporting the allegations which it contained. Prior to the commencement of the trial, therefore, Wilde's legal representatives must have anticipated that the young men mentioned in the plea - Wood, Shelley, Mavor, Atkins, Schwabe, Scarfe, Tankard, Grainger, Conway and Parker - would be available to testify in Queensberry's defence, and that there would be evidence from staff at the Savoy Hotel of two separate incidents involving "a certain boy to the Defendant unknown".

Yet, even without such a warning, Wilde's lawyers must have known that he was on thin ground. As already noted, Queensberry's careful choice of words - particularly his choice of the word posing - obviated any need to prove the actuality; it sufficed for Queensberry to prove the appearance. Wilde's letters to Bosie - variously addressed to My Own Boy, Dearest of All Boys, and My own Darling Boy - were undoubtedly open (as the blackmailer Allen put it) to a "very curious construction". Where the burden of proof which Queensberry artfully took upon himself involved no more than establishing Wilde's pose, would a jury require any more evidence than correspondence with a man half his age, containing lines such as, " ... it is a marvel that those red rose-leaf lips of yours should be made no less for the madness of music and song than for the madness of kissing"?

In the Twenty-First Century, it is difficult to imagine anyone seriously suggesting that Wilde's published works were immoral and obscene, as contended in Queensberry's Plea of Justification. But the issue for the Jury, in an environment of late-Victorian prudishness, was whether a "very curious construction" might reasonably be placed upon language such as that found in The Picture of Dorian Gray:

Even today, were it considered libellous to accuse a person of posing as a homosexual, it is difficult to imagine any tribunal of fact not finding that those published words were, at the very least, open to such an interpretation. But, of course, Wilde's situation was so much more perilous, given the contemporary morality, for three particular reasons.

First, a large part of Queensberry's defence involved the proposition that he was merely defending the honour of his son. Mr. Justice Wills, in his charge to the Jury at the second indecency trial, offered the (apparently irrelevant) observation that:

Secondly, Queensberry did not merely invoke the sympathy of parenthood - he also invoked the prejudice of homophobia. And in this he was aided and abetted by Wilde's own legal representatives, who disdainfully referred to the "gravest of all offences", and even by Wilde himself, in his indignant rejection, in evidence-in-chief, of the accusations made against him.

Yet there was a third, and perhaps most trenchant prejudice, stacked against Wilde - the prejudice, which still exists to some extent, against theatrical or artistic people. Wilde was a prominent figure of his time, and, like many prominent figures, had been subjected to his own share of ridicule and caricature. The Gilbert and Sullivan operetta, Patience, which opened 14 years earlier, was a barely-concealed satire upon Wilde and the "aesthetic movement" of which Wilde was the most prominent member. Its most Wilde-like character, Archibald Grosvenor, described in the Dramatis Personæ as an "idyllic poet", is given an extraordinary song which also, though more subtly, admits of "a very curious construction":

A magnet hung in a hardware shop,
And all around was a loving crop
Of scissors and needles, nails and knives,
Offering love for all their lives;
But for iron the magnet felt no whim,
Though he charmed iron, it charmed not him;
From needles and nails and knives he'd turn,
For he'd set his love on a silver churn!
His most aesthetic,
Very magnetic
Fancy took this turn -
If I can wheedle
A knife or a needle,
Why not a silver churn?

W. S. Gilbert

Sir Arthur Sullivan

Ironically, it has been suggested, from time to time, that both Sullivan and Gilbert were "closet" homosexuals. Sir Arthur Sullivan, then England's most celebrated composer, remained a lifelong bachelor. Gilbert's childless marriage was reputed to be largely sexless, as portrayed in the recent and delightful movie Topsy Turvy. A strong theme of misogyny flows through many of their works, and aging spinsters are the butt of much tasteless humour. According to legend, Gilbert and Sullivan wrote an obscene work under the name The Sod's Opera, with characters including Count Tostoff (a ruined Pole), the Brothers Bollox (a pair of hangers-on), and Scrotum (a wrinkled old retainer) - and, by way of corroborative detail, it is said that, for many years, a copy was kept in the guardroom at St James's Palace - but there is no authoritative record of this remarkable creation.

Another of the verses from Patience found a resonance in the cross-examination of Wilde's co-accused, Alfred Taylor, at one of the indecency trials. To a modern audience, Gilbert's lyrics for the character Bunthorne - the "fleshy poet" - may not convey any hidden meaning:

Then a sentimental passion
Of a vegetable fashion
Must excite your languid spleen,
An attachment a la Plato
For a bashful young potato,
Or a not-too-French French bean!
Though the Philistines may jostle,
You will rank as an apostle
In the high aesthetic band,
If you walk down Piccadilly
With a poppy or a lily
In your mediaeval hand.
And ev'ryone will say,
As you walk your flow'ry way,
"If he's content with a vegetable love
Which would certainly not suit me,
Why, what a most particularly pure young man
This pure young man must be!"

That Gilbert was ridiculing the concept of so-called Platonic love should not be lost on an intelligent modern audience; but the reference to "walking down Piccadilly" would make more sense to a modern Australian audience if one were to substitute, for example, Sydney's Oxford Street. Thus the cross-examination of Taylor by Sir Frank Lockwood, S.G., Q.C., M.P., proceeded:

This climate of prejudice was exacerbated, following Wilde's withdrawal from the libel prosecution of Queensberry, by a campaign of malevolence conducted by the press, even to the point of interpolating factual accounts of the proceedings with snide remarks, such as references to Wilde as "described as a gentleman". But even at the time when Wilde first consulted his solicitors and counsel, it is difficult to see how any competent lawyer - and there is no doubt that Wilde's legal representatives were thoroughly competent - or indeed any intelligent person, could not have anticipated the worst possible outcome. At his first consultation with the solicitor, Charles Humphreys, Wilde was told, "If you are innocent you should succeed". On the day that the libel prosecution was withdrawn, and at the urging of Bosie, Wilde consulted Sir George Lewis, a well-known solicitor with a great reputation for settling awkward society cases out of Court. Lewis told Wilde:

Quite possibly, had Wilde been offered such sensible advice at an earlier time, his downfall would not have deprived the world of further theatrical masterpieces of the same quality as The Importance of Being Earnest.

Whether Wilde would have heeded such advice can never be known. It may be that, like many litigants, the experience of being cross-examined brought him to his senses. After Carson's cross-examination was completed, but whilst Wilde was still at risk of being exposed to further cross-examination, he approached Clarke during an adjournment and asked whether he could be examined about anything and everything they choose. Clarke told him that this was so, and asked Wilde what was on his mind. "Well", said Wilde, "some time ago I was turned out of the Albermarle Hotel in the middle of the night and a boy was with me. It might be awkward if they found out about that". The decision to withdraw followed shortly after this revelation.

There can be little doubt that Clarke, along with his juniors and instructing solicitors, felt some responsibility for the course of events. There is no other plausible explanation for the fact that they volunteered their services to represent Wilde, without fees, at the two subsequent trials. But by then, of course, it was too late to undo the damage.