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Ulysses Trial: 1933

Two Percent For Life

Cerf engaged Morris L. Ernst, America's leading lawyer in obscenity cases. Ernst's fee, contingent on winning the case, was a five percent royalty on the first 10,000 published copies, then two percent for life on all subsequent printings.

Ernst and his associate, Alexander Lindey, carefully planned their strategy. Early in 1932, they had a copy of the book mailed across the sea, expecting Customs to seize it. It arrived untouched.

"So we had a friend bring a copy in," wrote Klopfer many years later, "and we went down to the dock to welcome him! The Customs man saw the book and didn't want to do anything about it, but we insisted and got his superior over, and finally they took the book and wouldn't allow us to bring it into the U.S. because it was both obscene and sacrilegious." That copy was sent by Customs to the U.S. attorney for libel proceedings. One meaning of the word "libel" is "the publication of blasphemous, treasonable, seditious, or obscene writings or pictures."

Ernst then got the U.S. attorney to agree to have the issue tried before a single judge—thus avoiding the potential pitfalls of a jury trial.

Finally, Ernst managed to keep postponing the case until it came before one particular judge: John M. Woolsey. The judge was known to Ernst as a cultivated gentleman who wrote elegant decisions and who loved old books and antique furniture.

The judge further postponed hearing the case to give himself time to read Ulysses and other books that had been written about it. But at last, on November 25, in a jam-packed small hearing room that seated fewer than 50 people, the hearing began. One of the prosecuting attorneys turned to Morris Ernst. "The government can't win this case," he said. Ernst asked why. "The only way to win," said the prosecutor, "is to refer to the great number of vulgar four-letter words used by Joyce. But I can't do it." Why not, asked Ernst.

"Because there is a lady in the courtroom."

"But that's my wife," said Ernst. "She's a schoolteacher. She's seen all these words on toilet walls or scribbled on sidewalks by kids who enjoy them because of their being taboo."

The government's case against Joyce's book made two distinct objections. First was the use of four-letter words not mentionable in polite company. Ernst set out to prove that standards of obscenity change, and that by the standards of 1933, Joyce's choice of words did not make the work obscene. To help make his point, Ernst traced the etymologies of a number of four-letter words. Of one particularly abhorrent word, he said, "Your Honor, it's got more honesty than phrases that modern authors use to connote the same experience."

"For example, Mr. Ernst?"

"Oh—"they slept together.' It means the same thing."

"That isn't usually even the truth," said Judge Woolsey.

At that moment, Ernst later remarked, he knew "the case was half won."

The second objection was to the frankness of the unconscious stream of thought that Joyce portrayed in such characters as Molly Bloom. This was (as Ernst later put it) Joyce's "dramatic incisive attempt to record those thoughts and desires which all mortals carry within themselves."

The judge asked Ernst if he had read through Joyce's entire book. "Yes, Judge," he replied. "I tried to read it in 1923 but could not get far into it. Last summer, I had to read it in preparation for this trial. And while lecturing in the Unitarian Church in Nantucket on the bank holiday.…"

"What has that to do with my question—have you read it?"

"While talking in that church I recalled after my lecture was finished that while I was thinking only about the banks and the banking laws I was in fact, at that same time, musing about the clock at the back of the church, the old woman in the front row, the tall shutters at the sides. Just as now, Judge, I have thought I was involved only in the defense of the book—I must admit at the same time I was thinking of the gold ring around your tie, the picture of George Washington behind your bench and the fact that your black judicial robe is slipping off your shoulders. This double stream of the mind is the contribution of Ulysses."

The judge rapped on the bench. "Now for the first time I appreciate the significance of this book. I have listened to you as intently as I know how. I am disturbed by the dream scenes at the end of the book, and still I must confess, that while listening to you I have been thinking at the same time about the Hepplewhite furniture behind you."

"Judge," said Ernst, "that's the book."

Additional topics

Law Library - American Law and Legal InformationNotable Trials and Court Cases - 1918 to 1940Ulysses Trial: 1933 - Two Percent For Life, "his Locale Was Celtic And His Season Spring", Suggestions For Further Reading