Ern Malley on Trial

At 3:30 in the afternoon on Tuesday, 1 August 1944, Police Constable C Cameron Smith visits Max Harris, one of the editors of the literary magazine Angry Penguins, at his office in Grenfell Street, Adelaide. Smith questions Harris about his involvement in the publication, and then about the meaning of several poems in the ‘Ern Malley’ section of a recent issue. When asked if one poem, called ‘Boult to Marina’, has a suggestion of indecency about it, Harris replies: ‘If you are looking for that sort of thing, I can refer you to plenty of books and cheaper publications—with worse than that in them. Our publication is intended for cultured minds, who understand these things, and place ordinary thoughts on a higher level.’¹ Smith remains unconvinced.

The ‘Ern Malley Affair’, which has been described as ‘the greatest literary hoax of the 20th century’, is well known for raising questions of authorship and authenticity in poetry.² James McAuley and Harold Stewart created the fictional poet Ern Malley with the aim of embarrassing Angry Penguins. They fooled Harris into dedicating a whole issue of the magazine to poems which he believed at the time to have been written by a young man who died an untimely death. McAuley and Stewart’s real target was modernist poetry itself, which they saw as insubstantial and stylistically ridiculous.³ However, the indecency trial which followed the publication of the poems and the revelation of the hoax is in many ways more remarkable than the ‘affair’ itself. What begins as a simple inquiry into the potentially immoral connotations of some of the lines in the Malley poems turns into a re-staging of the hoax, raising anew the question of the historical incommensurability between poetry and law.

The trial took place in the Adelaide Police Court in 1944. Harris was accused of Indecent Advertisements and pleaded not guilty.

The hoax is mentioned several times throughout the course of the trial. When asked if the works are still significant despite being written by Stewart and McAuley, Harris responds in the affirmative. He claims: ‘I don’t judge poems by the intention of people who write them, but by the result.’⁴ This reaction is echoed by others called to testify. Another member of the board of Angry Penguins, John Reed, states: ‘I believe that even if they set out with the intention of perpetrating a hoax, they have produced poems which are great.’⁵ John Innes Mackintosh Stewart, a professor of literature from the University of Adelaide brought in as an independent expert, deflects the question about the authorship of the poems, implicitly suggesting its irrelevance: ‘I [only] have a belief as to the species of poem they are.’⁶

However, the hoax is not actually considered relevant to the outcome of the case by either the defendant or the prosecution. One metric by which the poems might reasonably be judged, that is, their purpose, is never decisive during their analysis in court. Instead, the trial proceeds by way of a serious line-by-line examination of the works, almost a courtly ‘close reading’. At times, the prosecution try to determine what the poems mean if taken by themselves, as written on the page, with no broader context. In another line of questioning, they try to interpret the poems by imagining what ‘the poet’ intended to convey. Harris, and the other witnesses, are repeatedly asked questions about what the poems mean. However, we know precisely what the poets Stewart and McCauley meant. As Harris articulates, the meaning of the poems from the perspective of their authors is only to undermine ‘the members of a modernistic culturalism’⁷ Any other effect is secondary to this, if not entirely arbitrary. The figure of ‘the poet’ invoked in the search for the meaning of the poems cannot be the hoaxers. The poet on trial is the spectre of Ern Malley himself. The prosecution persists in drawing out more subtle interpretations of the poems, going beyond the pointed commentary on modernist literature the hoax was designed to make.

In this way, the trial effectively replays or returns to the beginning of the Ern Malley affair. By eliding the significance of the hoax, the poems are, in practice, analysed as if it had never been revealed. In at least one sense, then, the hoax is a failure. While it is true that the editors of Angry Penguins were ‘conned’ into believing the fictional backstory of Malley, in the court of law, the legitimacy of the Ern Malley poems is reinstated. If the poems are seen to have the power to corrupt minds, and to potentially engage a wide enough readership to make this a concern to the authorities, they must operate more or less in the same way as poems written in sincerity.

The history of the Australian literary canon echoes this failure. Bob Perelman makes a similar point about the failure of the ‘hoax’ to really be a hoax by looking to its legacy. At the time the hoax was revealed ‘the poems and their supporters looked ridiculous’, but ‘a half century later’, things changed. In significant anthologies of Australian poetry, more space is allocated to Ern Malley than to McAuley or Stewart, who were poets themselves.⁸ Notably, it’s not merely the story of the literary hoax that is documented in anthologies, but often a sizeable selection of the poems themselves. Even if we withhold judgement about the aesthetic value of the poems, they seem to merit re-reading, if only to put ourselves to the test. Would we, like Harris, be ‘fooled’? John Ashbery, at least, vouched for their quality: ‘I liked the poems very much. They reminded me of my own tortured early experiments in surrealism, but they were much better.’⁹

The unusual direction the analysis takes in the indecency trial points to a fundamental tension between poetic and legal discourses. Despite Australia’s pretention to ‘Larrikanism’, the joke doesn’t land. It’s not only modernist poetry which has a delayed arrival in Australia – the complexity of the scandal that often accompanies pivotal modernist works also doesn’t register. In this legal context, only the obscenity of the poems is acknowledged, and the absolute sincerity with which the poems are analysed makes the trial itself the brunt of the joke. It’s true that the court room isn’t a comedy club, but there’s precedent for more nuanced engagements with the intention of writers. In the trial ‘United States v. One Book Called “Ulysses”’, the Judge overrules obscenity charges on the basis of James Joyce’s sincerity. It is because the author’s intentions were ‘honest’ and made a ‘sincere experiment’ in a new literary form that the work was excused for its lurid references.¹⁰ To shed some light on the curious turn of events in the Ern Malley trial, we must look back further, to one of the most canonical instances of poetry being ‘put on trial’: Plato’s attempt to disentangle poetry from law in the Republic.