On April 12, after a brief hearing, Judge Arthur P. Stone of the district court postponed proceedings for two weeks while he read the offending novel. On April 26 he ruled Strange Fruit obscene under the statute. Though he thought it “a story that might be told,” he found scattered through it “indecencies” that had been lugged in for the apparent purpose of selling the book, and these in his opinion tended to corrupt the morals of youth. He fined Isenstadt two hundred dollars and gave him a suspended jail sentence. The charges against DeVoto he dismissed, since there was no law against buying an obscene book, only against selling it.
Within a few days of Judge Stone’s decision, and basing their action upon it, several other Massachusetts towns banned Strange Fruit. On May 15 the Post Office Department, acting on the same decision and perhaps under pressure from Watch and Ward and the Society for the Suppression of Vice, prohibited its distribution through the mails, and warned newspapers and magazines not to accept advertisements for it, under threat of prosecution. Within hours, under counterpressure from the literary and publishing world, it lifted the ban, saying somewhat lamely that Strange Fruit could be accepted for mailing “at the publisher’s risk.” Presumably the final action of the Post Office would depend upon the decision of the Supreme Court of Massachusetts when CLUM’s appeal finally reached it.
Reynal & Hitchcock announced that it would take the risk, admitting with few evidences of sorrow that since its publication only a month and a half before, the novel had sold two hundred thousand copies, quite a few of them (though it did not say so) probably attributable to the Massachusetts censorship. Norman Cousins of the Saturday Review suspended his epistolary dispute with Bernard DeVoto over the Lewis article long enough to announce that he would defy any ban against advertisements for Strange Fruit. He said he would accept them until the Post Office Department’s order had been backed by due process of law. So he, like Matthiessen, found himself simultaneously at war with DeVoto and allied with him. Dorothy Thompson and others had already joined up as signatories of a protesting letter from the American Center of the P.E.N. to the Boston booksellers, and so there they were too, intimately associated with the anti-literary philistine in the defense of literature.
Between the uproar over his own book and his much-publicized activity in the Strange Fruit case, DeVoto could hardly have been more in the public eye if he had assaulted President James Bryant Conant in the Yard. Plenty of people had been lying in wait to fill him with arrows, and some did; but some, like Matthiessen, were partly disarmed. Rather than divide allies in a cause he thought worthy, Matthiessen withdrew his request to review The Literary Fallacy for the Saturday Review. And Malcolm Cowley, though his unfavorable review appeared as scheduled,3 went out of his way to remark in it how friendly a man DeVoto was “when not at his typewriter,” and to praise his generous help to “neglected scholars and persecuted books.” The fact was, the man whom many of the literary Left had called a Fascist showed himself more ready to fight for civil liberties than almost any of the Left except Matthiessen. The radical in him, the western Populist who had been submerged during his long struggle for recognition and his long war with the literary fashionables came out again, not cautiously like a groundhog scared of his shadow, but boldly, even truculently. It was as if writing The Literary Fallacy had permitted the healing of an old, infected wound. Just as his desire to write fiction would ultimately be cauterized by public neglect, his parallel impulses toward literary criticism were here brought to an end by the revelation of how little agreement he evoked from the guild. For better or worse, he was a total maverick, and the truth was, he did not enjoy the role nearly as much as he appeared to. Whatever he might pretend, he did not enjoy feeling that his ideas, which were as honest as they were positive, were being met with cold or angry hostility.
Good-by to literary criticism, then. The noise about his little book died down quickly. The struggle against censorship, a struggle in which he enlisted the support and approval of even his enemies, was a longer and more rewarding fight. It would go on until his death.
Delayed by the slowness of the courts, but given a persistent interest because of its possible effect on the whole field of civil liberties, the Strange Fruit case dragged on for a year and a half, until on September 17, 1945, the Massachusetts Supreme Court upheld the lower court’s decision and declared the novel to be finally and incontrovertibly and legally obscene. Strange as that opinion must seem now, and misguided as it seemed to many then, it was not unexpected, and it had its compensations. The case had brought about a movement for revision of the Massachusetts obscenity law, for one thing; for another, it had given a man with an established pulpit repeated opportunities to preach civil liberties to a national audience.
DeVoto let the American public in on the development and implications of the Strange Fruit case in three separate Easy Chairs (May and July 1944 and February 1945), as well as in numerous lectures and letters to the press, and he summarized it finally in a long article, originally planned as a pamphlet, that he published in the New England Quarterly in June 1946. For more than two years, he kept the Boston booksellers and their Watch and Ward ringmasters exposed to a publicity they did not want and a ridicule they could not reply to. He threw down and tramped on the notion, widely believed in intellectual Cambridge, that it was exclusively Catholic bigotry that motivated and supported Boston’s censorship. The Catholic Church might support it, he pointed out, but so did plenty of Protestants. Bigotry was not so narrowly denominational as it was held to be, and censorship could never have fastened itself upon the community without the tacit support of rich, wellborn, indifferent, lazy citizens of all religious varieties inured to the “comfortable acceptance of the intolerable.”
Losing all the battles, he and CLUM won the war. The new obscenity statute that the legislature passed in May 1945 was no great improvement on the old one, but by the time it passed, the booksellers were far less likely to collaborate in its enforcement. And though the Supreme Court had upheld the lower court’s decision, the dissenting opinion of Judge Lummus was so eloquent a civil-liberties document that the Easy Chair was overjoyed to publicize and praise it while lambasting the majority opinion. When correspondents rebuked the Easy Chair, saying that opinions of the high court were above public criticism, the Easy Chair had its friend Charles Curtis dig out a whole series of cases demonstrating that high-court decisions were no such thing.
Strange Fruit was not one of the great landmark cases by which literature was progressively emancipated from the interference of snoops, prudes, and psychopaths. It lost all along the line. But neither was it a mere side show, like Henry Mencken’s vaudeville defense of “Hatrack” and the American Mercury’s mailing privileges in 1926—that famous couple of days when Mencken, equipped with a peddler’s license, stood on Brimstone Corner and sold a copy of the Mercury to T. Frank Chase, the head of Watch and Ward, and, clowning for the news cameras, bit the fifty-cent piece that Chase handed him. In the long run, though he saved the Mercury from postal suppression, Mencken probably did little for freedom of the press and civil liberties in general. The Strange Fruit case did.
Far more publicly than DeVoto’s obscure protest in the Harvard Graduates’ Magazine against the prosecution of Al DeLacey and the Dunster House Bookshop, it challenged Watch and Ward and the booksellers who submitted to its domination. It helped make the phrase “Banned in Boston” in a term of ridicule and contempt. Even while going down to defeat, it weakened the control of the narrow and censorious over literature and ideas. It began to put the censors slowly to death by shutting off public acceptance of their role.
It also established Bernard DeVoto more firmly than ever as a public defender, champion of the consumer, asserter of the people’s right to know and to make free choices. If Edmund Wilson in 1944 or 1945 had still been curious to know what “body of ideas” DeVoto lived by, he could easily have found out. DeVoto had more and more plainly stood and unfolded himself. In 1937 he had
told Wilson that he operated ad hoc, but he had read too much Pareto even then to believe that any man’s whole life could be lived experimentally. He should have said that he operated ad hoc the way a spider does. He might spring into the air, or hang by a thread, or turn handsprings while assaulting a fly, but he kept his web under him or attached to him, and he retreated to it when he felt endangered. Whitehead had said, “Unless society is permeated, through and through, with routine, civilization vanishes.” The routine that DeVoto counted on, spoke for, defended against its enemies, was the routine of the Bill of Rights. He was a very American intelligence, and in nothing was he more American than this.
4 · “The Job I’m Eyeing Is Lewis and Clark”
John August opened 1944 with his fifth and last serial, The Woman in the Picture, which ran in Collier’s from January 6 to January 29. As an omen of the year to come, it could have been better, for in the belief that DeVoto would at any moment be on his way to Africa for the Army, Collier’s had not called on him for the revisions it thought necessary, but had had them made by the staff.1 Somebody had rewritten the first third of the story, and thus had exposed DeVoto, even more than John August’s workmanlike prose would have exposed him, to Sinclair Lewis’ sneer about “serious literature.” It had not been a good story before Collier’s mangled it. Melodramatic and implausible, a combination of cops-and-robbers and It Can’t Happen Here, it was the least defensible of August’s efforts, despite its author’s attempt to give it verisimilitude by writing into it much of the itinerary of his last trip West and by endowing its hero with Bernard DeVoto’s well-observed migraines. From its opening page it was a horse made by contrivance. Collier’s, introducing the committee principle, brought it into the semblance of a camel, and it was still a camel when Little, Brown published it in March, on the eve of the Strange Fruit and Literary Fallacy fights.
Throughout the spring, with both disputes going, DeVoto was also involved in a continuing protest against the suppression and distortion of war news, a subject with which his fruitless negotiations with the War Department and his close friendship with Elmer Davis had given him some familiarity. That protest had led him to the edge of politics, for when Wendell Willkie, campaigning for the Republican presidential nomination, picked up one of the Easy Chairs saying that the government’s management of war news was more arbitrary and more stringent than in any previous American war, DeVoto laid aside everything else and at Willkie’s request documented the statement out of the Spanish American and Civil wars. As he wrote Davis, “If Wade says we know less about this war than about any previous war we’ve fought, that’s me speaking. By the book.”2 But Willkie withdrew after the Wisconsin primary in April, somewhat to DeVoto’s regret. He would not likely have voted for him, but he liked Willkie’s honesty, he was fed up with the New Deal, and he hated to see good historical research go to waste. Clearly it would have gratified him to be close to the engine room of politics, advising a man of power.
During that same spring of 1944 he was in continuous conflict with the Mark Twain Estate. Late in 1943 Clara Gabrilowitsch had deposed Charles Lark, a friend of her father’s and a man whom DeVoto had come to respect highly, and replaced him with a somewhat fussy, meticulous, unliterary maritime lawyer named Thomas Chamberlain. Knowing nothing about his job, he set out to learn it. He wanted lists, inventories, abstracts. He liked things in triplicate. He wanted to make the smallest decisions, down to the repair of the typewriter in the Widener office. In particular, he caused DeVoto endless trouble by his unwillingness to accept the usual procedures for copyrighting materials out of the Mark Twain papers which were to be published in magazines. Instead of allowing them to be copyrighted along with the total contents of the magazine, and having the copyright later assigned to the Mark Twain Company, he demanded the much more cumbersome, indeed almost impossible, procedure of copyrighting them in advance so that the magazine which printed them could then credit them to the Mark Twain Company. And he was slow and cautious about everything, so that opportunities for publicity profitable to the Mark Twain interests were lost.3
His stubbornness on the copyright issue, plus his habit of procrastination, plus his apparent belief that DeVoto was some kind of salaried underling whose time was always at the Estate’s command, plus his unwillingness to let DeVoto make editorial or other decisions, led to a series of irritations and eventually to DeVoto’s attempt to resign. He made the offer informally in December 1943, when Chamberlain was taking over from Lark, and he made it again, formally and forcefully, on May 27, 1944, remarking that he got neither pay nor status from the job, that it burdened him with correspondence of many kinds, that he was constantly being called upon for inventories, that he was given no editorial discretion, not even the discretion to say what scholars should be allowed to use the papers, and that his right to publish anything he wanted from the papers, never questioned until now, seemed to have become a matter of petition and permission. At a luncheon meeting with Chamberlain and representatives of Harper & Brothers at the Century on June 5, he passionately asked to be released, but was soothed and persuaded to remain. He did refuse to gratify Chamberlain by coming down from his summer hideout on the Ames Estate in Annisquam to supervise the new inventory that Chamberlain wanted made.
The fact was, he had lost interest in the Mark Twain papers, and he had written most of what he wanted to say about Mark Twain. That interest seems to have failed along with his general interest in literary criticism. Though he could have finished in a short time the volume of letters that he had three-quarters assembled, he made no move to do so. After the summer of 1944 his curatorship of the Mark Twain papers was nominal, a token position which he was ready at any time to unload and which he left almost entirely to Elaine Breed, Rosamond Chapman’s successor as secretary.
He had a tendency to consume things, to need new fuel. As he told the literary wars good-by with The Literary Fallacy, and as his interest in Mark Twain cooled, he felt the oncoming of another book, the quickening of a new excitement. Over a period of years, ever since he had inserted into the Saturday Review the story of Lewis and Clark’s Christmas among the Mandans, he had been periodically tempted toward a history of their expedition. There, and in Jefferson’s purchase of Louisiana, was the match that had touched off the long running fire of the westward expansion. Following his habit of going to the experts for advice, he had talked about such a book with Mattingly, Paul Buck, and other historians. On April 30, 1944, at the hottest time in The Literary Fallacy and Strange Fruit fights and at the height of his irritation with Chamberlain and the Mark Twain Estate, he accosted Henry Steele Commager:
Dear Henry:
As the man who discovered I’m a bum novelist before Red Lewis did, you’ve got certain obligations. The one you’re held to at the moment is to give me advice. I’m playing with the notion of getting to work—in a minor way since I won’t be able to go all out on it for some months—on a historical job.…
The job I’m eyeing is Lewis and Clark.… I propose to draw on the narrative talent that is denied me in the current reviews and write a narrative history of the expedition. That’s that, but naturally I want the book to be as complete, as understanding, and as widely useful and applicable as it can be made without breaking up the narrative. I want to learn as much as I can. I also want to shorten the learning process as much as possible.…
You see, I’m taking a backward leap into a field where I’m virginal, bucolic, naive, wide-eyed, trustful, and practically as ignorant as Red Lewis. So, the idea is, you take me by my little hand and lead me in.
I want to know about Louisiana. I want to know how the sense of that vast, unknown area began to penetrate the American consciousness, in what form, with what speed. I want to know how people thought about it—and how to find out what they believed about it and what they knew about it.… The idea of Louisiana before we got it. And, as a lead out of that, how much can I get in Jefferson and how do I go about looking for it?
&n
bsp; That’s the heaviest job. But I also want to master the purchase itself and to do so with as little waste motion as possible. I want to master the essentials on the spot and at the sources, French and American—and Spanish too, if they’re essential, and I’m too damn dumb to know—and also in the judgment of modern historians.…
I think I can get the Indians for myself. Some time ago I got an urge to read more about them and so I’ve been laying down something that turns out to be useful. But if you have any notions, just run them in.
And General Remarks. You’re Old Killbuck in person and here I am, a greenhorn, a mangeur de lard, just starting off into the hills for the first time. With a horn or two of Monongahely under your belt you’re feeling genial and you decide to prepare me as well as you can for the first sight of the buffalo and the Blackfeet. You think it’s a shame that as nice a guy as me should enter the wilderness so poorly equipped. You’re going to give me all the general advice that occurs to you, in the pious hope that I’ll be able to save my scalp.
Sure, I know this is unconscionable and you have more to do than you’ll ever get done and who the hell am I to bust in on a busy man, and all that. On the other hand, you’ve got a stern obligation to your profession, and if amateurs will insist on trying to practise it, you’ve got to do what you can to keep the resulting damage at a minimum.4