Sentimental Fraudslsi 1224 83..114

Journal of Law & the American Social Inquiry Bar Foundation

Law & Social Inquiry Volume 36, Issue 1, 83–113, Winter 2011

Sentimental Fraudslsi_1224 83..114

Simon Stern

The 2006 class action against James Frey, concerning his fabrications in A Million Little Pieces, was the ﬁrst suit of its kind in the United States. There is nothing new about false memoirs, so what can explain the lawsuit? When the book was promoted on “Oprah’s Book Club,” viewers were invited to respond emotionally, and saw their responses as a form of testimony. Those responses produced a sense of betrayal and inauthenticity when Frey’s falsehoods were revealed. This view ﬁnds support in the eighteenth-century sentimental novel, which similarly linked readers’ reactions to the author’s emotional authenticity. Fraud was an ongoing concern for sentimental novelists, some of whom used elaborate editorial to ploys to disavow responsibility for the text, while others populated their novels with fraudulent characters, intended as foils for the protagonist. An investigation of these novels helps to reveal the implications of the Frey case for future claims of literary fraud.

INTRODUCTION

In January 2006, when the Web site The Smoking Gun published an exposé of James Frey’s 2003 memoir of drug addiction, A Million Little Pieces (Bastone 2006), many readers were outraged by Frey’s deceit. Ultimately, ten class actions were ﬁled in ﬁve jurisdictions in the United States, and in June 2006 the cases were consolidated for proceedings before the Judicial Panel on Multidistrict Litigation.1 The plaintiffs raised various claims including

Simon Stern is Assistant Professor at the University of Toronto, where he teaches on the Faculty of Law and is cross-appointed to the Department of English. He can be reached at [email protected]. For comments on earlier drafts, thanks to Lisa Austin, Alyson Bardsley, Abraham Drassinower, Angela Fernandez, Louis Kaplan, Ariel Katz, Karen Knop, Ed Morgan, David J. Phillips, Andrea Slane, Irene Tucker, Mariana Valverde, the participants in the Identity Rights Colloquium (sponsored by the Centre for Innovation Law and Policy, University of Toronto Faculty of Law), and the anonymous reviewers for Law & Social Inquiry. 1. As the filing dates of these actions show, there was a rush to the courts during the first six weeks after the exposé was published online. In Re “A Million Little Pieces” Litigation (June 14, 2006) (consolidating Paglinawan v. Frey (filed January 19, 2006); Floyd v. Doubleday (filed

negligence, false advertising, and breach of contract, but at the heart of each suit was an allegation of fraud. The complaint in Giles v. Frey (2006), for example, asserted that Frey and his publishers, Random House, “fraudulently, with knowledge and intent, stated that [Frey’s book] was a non-fictional recount of experiences of James Frey” (10) even though the book “by the author’s own admission is replete with fictional and concocted stories” (2); thus, the class members were induced to buy the book because they “rel[ied] on the [defendants’] false misrepresentations” (8). Why did Frey’s deceit provoke this wave of litigation? In recent years, numerous chronicles of violence and abuse have been exposed as fabrications. Given the array of false memoirs about holocaust survivors, child prostitution, and gang violence, Frey’s book can hardly be considered a particularly egregious example. Why should his effort, alone out of this whole procession, be singled out for legal allegations of fraud? Frey’s book was not just the only false memoir to generate a federal lawsuit, but it was also the only one to be included in Oprah Winfrey’s book club (Hyman 2007, 235). The Smoking Gun article emphasized this point, calling Frey “The Man Who Conned Oprah” and noting that her show sponsors “the world’s most powerful book club” (Bastone 2006). However, the hostility directed at Frey was not simply a result of heavy media exposure. Such massive publicity doubtless increases the chances of reaching litigious buyers, but Winfrey’s show also gives participants (including audience members and, vicariously, viewers at home) the opportunity to make a public statement that serves as a form of testimony. Winfrey solicits responses from the audience members, and those responses become part of a dynamic process (Lofton 2008, 54–55). Reactions, and the reactions they provoke, are essential to the production, which encourages participation by putting audience members in conversation with each other, the guests, and the host. The talk-show format, with its emphasis on the audience in what some have called an “emotional public sphere” (Lunt and Stenner 2005, 63), helps to give these contributions the status of testimony—an affirmation of the speaker’s sincere beliefs, which the speaker and hearers regard as being uttered on record and which therefore, even if it sounds spontaneous, will be understood by everyone to reflect the speaker’s awareness of the audience. In consequence, a statement that falls into the category of “natural” testimony may seem (in the speaker’s view) to acquire the status of “formal” (or legal) testimony. Natural testimony includes statements offered as evidence for a proposition, uttered by a speaker claiming to have proper authority for the statement, and directed at an audience believed to be in need of

January 27, 2006); Snow v. Doubleday (filed January 27, 2006); Giles v. Frey (filed February 2, 2006); More v. Frey (filed February 2, 2006); Strack v. Frey (filed February 2, 2006); Vedral v. Frey (filed February 2, 2006); Marolda v. Frey (filed February 15, 2006); Hauenstein v. Frey (filed February 21, 2006); Rubenstein v. Frey (filed June 13, 2006)). Sentimental Frauds 85 such evidence (Coady 1992, 32–33; Graham 1997). Legal testimony includes the same conditions, and also imposes certain conditions that the speaker must satisfy, such as being sworn in, avoiding hearsay, and undergoing cross- examination. As the Oprah example suggests, even a nonverbal expression may count as an instance of natural testimony. In that case, the utterance amounts to an affirmation about the speaker’s character: by virtue of their shared reaction to the book, the participants show that they count as book club members because they have displayed the right emotional credentials. These responses do not qualify as legal testimony, but as Jan-Melissa Schramm (2009) notes, speakers who give natural testimony before an audience may imagine that their utterance qualifies as “a species of evidence” simply because the statement has been “articulated in a public forum with a view to establishing its ‘truth’” (478). Because the evidence is offered before viewers who are regarded as witnesses, the legal requirements are seen as unnecessary formalities: the speaker avoids hearsay by professing her own belief; her sincerity eliminates the need for an oath; and her openness to scrutiny does the work performed by cross-examination. The article in The Smoking Gun hints at the significance of the talk show’s interactive dynamic, noting that the Frey episode included “emotional filmed testimonials” in which “employees of Winfrey’s Harpo Productions lauded the book as revelatory, with some choking back tears,” before “the camera...returned to a damp-eyed Winfrey” to make her response rhyme visually with her associates’ testimonials (Bastone 2006). The technique recalls the filmic device of shot/reverse shot, which uses alternating close-ups to align the spectator with each character’s point of view, drawing in the viewer to facilitate emotional identification (Nabi and Hendriks 2003). As a result, those in the television audience are enlisted as participants. Susanna Annese (2004) confirms this view, observing that “ordinary people...on [television talk shows] serve as a kind of simulacrum for the audience on the other side of the screen and offer images of subjectivity for their viewers” (374), with the aim of securing the latter’s “involvement” (375). When audience members and viewers participate in the book club by devoting themselves to the recommended title, they may feel that they have, at least vicariously, given the same kind of sentimental testimony that they saw on television and that others have witnessed them doing it. This testimony—whether produced in the television studio or through the act of reading and responding to the new book—allows members of the book club to imagine themselves as part of a larger group in the same way that, in Benedict Anderson’s (1991) analysis, members of national groups belong to “imagined communities” (6). As Anderson explains, these communities are “imagined because the members of even the smallest nation will never know most of their fellow-members...[and] yet in the minds of each lives the image of their communion” (6). “Oprah’s Book Club” similarly constitutes itself as an imagined group whose members reveal their commonalities by 86 LAW & SOCIAL INQUIRY

appreciating a shared set of books, according to a shared set of standards. The sharing, even for someone who meets no other book club members, makes the act of enjoying the book a communal act and hence allows the reader to understand it as a public act. To be revealed later as a dupe—as someone whose publicly vaunted sentiments were manipulatively prompted by the author’s lies—is more embarrassing than to learn the same thing about a sympathetic gesture performed in private. For the book club member who reads the title after hearing it lauded on Oprah, the experience offers the opportunity to bask in the afterglow of Winfrey’s emotion. Talk shows encourage viewers to “toy with the idea of being on a show themselves” and to “consider the shows as ersatz communities similar to other social circles” (Trepte 2005, 167). The community’s members and the ties that bind them start to look foolish when their endorsements prove misguided. The bid for self-expression, captured in what Bastone (2006) aptly calls “filmed testimonials,” now seems to expose the participants as inauthentic. Once the author’s duplicity has been revealed, the whole sentimental apparatus collapses. Even if nobody else remembers the response of the participants and viewers who felt compelled to emote operatically, that does not necessarily alleviate the individual’s own sense of being duped, of being induced to offer public testimony that proved to be unsupportable. Although he was charged with fraudulently inducing them to buy the book, Frey’s true (but nonactionable) offense was fraudulently inducing an emotional response that allowed readers to tell themselves that they knew how to be moved. Perhaps the best way to make the injury conform to a legally cognizable one would be to call it solicitation under false pretences, where the purchase of the book (the injury charged in the complaints) was induced by the promise that readers could join together in sharing an authentic emotional experience. This explanation speaks to the readers’ injury and also shows why a class action is a uniquely appropriate form for addressing it: those plaintiffs who came to the book from Oprah experienced their harm as members of a group, not as a random collection of disparate individuals. These readers probably did not realize that the accusation against Frey and the self-doubt that it reflected have a heritage dating back to the eighteenth-century sentimental novel. Sentimental novels purported to offer the same kind of experience as Frey’s book, with the difference that they made no claim to describe actual persons, so that the authenticity of the experience lay in the power of the representation rather than the truth of the events. Yet if readers were to regard the novel as making a legitimate claim on their emotional resources, they still needed to believe in the author’s moral sincerity. As Janet Todd (1986) observes, sentimental fiction “buttonholes the reader and demands an emotional, even physical response” (2)—but readers are unlikely to answer the demand unless they regard it as legitimate. That explanation helps to Sentimental Frauds 87 clarify what is entailed in criticizing such a novel as fraudulent. The power of the representation cannot, by itself, be sufficient to produce an authentically sentimental experience for the reader; the authority to make the representation must also be seen as warranted by the author. Of course, most readers had no basis for testing that warrant, but they understood these novels to be premised on a claim about the author’s sentimentality, so that if the premise were withdrawn, the novel would be regarded as a cheat. In what follows, I examine the problem of fraud that arises when readers seek to learn the truth about themselves from others’ stories, which are deemed capable of teaching that lesson only if the author has met a standard of moral or literal truth in narrating the story. The distinction between the last two may seem obvious, but as the examples below will demonstrate, it sometimes proves difficult to maintain. I begin with sentimental fiction of the later eighteenth century, when the genre reached its height. During that phase, many readers took it for granted that fiction could be a proper measure of their sentimental nature and could be the means for displaying their sentiment to others. Sentimental novels encouraged this response by structuring the action around scenes of emotional display in which the hero’s sympathetic reactions were observed and commended by other characters; as Paul Goring (2005) observes, these scenes are “so central to the effects of sentimental fiction that witnessing is arguably one of the chief functions served by [the sentimental hero]” (157).2 For readers who would treat the sentimental novel as serving a testimonial function, the underlying premises that license this operation closely match those of Winfrey’s audience. First, readers must be allowed to assume that the sentimental hero expresses the author’s own views and enacts the author’s own imagined responses to the novel’s events. Otherwise the novel would be merely another made-up story—perhaps artfully constructed with shrewd observations about human behavior, but lacking any sense that the contents are affirmations of the author’s personal convictions, and thus lacking any basis for claiming to provide a model that others should emulate. Similarly, an insincere guest on a talk show—one who was obviously just pretending to share the dilemma of the day—would be violating the terms that license the appearance in the first place, and would likely be seen as a cynic who poses an affront to the whole enterprise. Second, readers must be able to exhibit their own sentimental responses to others without being seen as affected or

2. Goring (2005) similarly observes that “in sentimental fiction the body is convention- ally rendered eloquent by being seen to be eloquent in the presence of a fictional witness. It is largely this key narrative strategy that lends sentimental fiction its ‘theatrical’ character— expressive bodies are rarely depicted in solitary isolation, but rather appear before a viewing figure (or several) whose own responses provide a testimony of the virtue on display” (153). He adds that portraying a solitary figure would not achieve the same effect, because “the staging of [a] witnessed eloquent gesture...isameans of...inviting [readers] to occupy positions created within the fiction” (153). 88 LAW & SOCIAL INQUIRY

artificial. The later eighteenth-century “culture of sensibility” provided the perfect crucible for the production of sentimental fiction and its testimonial use (Barker-Benfield 1992). The public expression of sentiment in that culture offers an analogue for the reaction, by a modern audience, to the emotionally compelling talk show—and the fit is even tighter when, as in Frey’s case, the talk show centers on a writer’s testimony about his traumatic past, from which he has emerged triumphant (Hamilton 2007, 324–26; Miller 2007, 542; Harker 2008). Central to the idea of testimony in both contexts is that the writer’s experiences can become the reader’s emotional truth and that by embracing that truth, the reader actually or imaginatively becomes part of a larger public.3 After considering the sentimental novel in its classic form, I turn to Sarah Fielding’s David Simple (1998 [1744]), an early contribution to the genre, in which fraud is often linked directly to testimony in the legal sense. Fielding’s novel is filled with malicious schemers who realize that that their conduct may be called into question and who take care to speak the literal truth—though not the moral truth—in case their plots are detected. Writing a few decades before the readerly display of sentiment began to play a sig- nificant role in literary culture, Fielding anticipates that role by including characters who confront the issue directly, preparing themselves for the day when they might have to testify in court. Finally, I revisit the suit against Frey, asking what it tells us about the potential for future litigation based on similar premises. The case against him turned on a combination of unusual factors: his book, which he represented as autobiography rather than as fiction (or as fiction based on truth), was promoted on a nationally popular talk show; then, after the book was authori- tatively discredited, the talk show host herself criticized the author for his

3. A nineteenth-century version of the same process may be found in what Voskuil (2004) calls “sensation theatre”—melodramas that aimed to stir their audiences “both to think and feel, to be sentient and sagacious at the same time” (64). As Voskuil explains, “In their shared, somatic responses to sensation plays...[the] spectators constituted a kind of affective adhesive that massed them to each other....[T]his concept of the public relied on the...cultivation and self-conscious management of authentic feelings and sensations. And that dynamic is typified by the paradox of sensation theater, a paradox that located authenticity at the very heart of the theatrical experience” (64). Voskuil notes that audience members “frequently interacted with players on stage...andcommented loudly and publicly on performances in progress” (65), often by hissing, shouting, or otherwise reacting with a “flamboyant exhibi- tionism mimicking the melodramatic acting styles they [saw] on stage” (66). Voskuil adds, “What mattered most to Victorian spectators was not merely that they felt such responses but that they believed they felt them in common” (70). Given this interactive, expressive dynamic and the collective energies that it mobilizes, the genre might be regarded as a precursor of the modern talk show. Discussions of sentimentality in modern talk shows generally do not consider their relation to the sentimental novel. An unusual exception is Davis (2004), although she does not focus on the testimonial nature of the audience’s participation. For other useful discussions of sentimentality and the talk show, see Bente and Feist (2000), Lunt and Stenner (2005), and Tovares (2006). Sentimental Frauds 89 deceptions, communicating her own sense of betrayal to her audience. Even with this confluence of events, the argument for maintaining a class action was weak. Its plausibility depended on an equation between the readers’ sentimental testimony and the legal testimony that would be required to establish proof of harm. The typical case of literary fraud, however, lacks this element of communal identity and shared commitment—even if only produced vicariously with the help of others’ publicly vaunted emotions. Without a large group of readers whose grievances can be easily united so as to appear self-validating, a class action stands little chance of success. The suit against Frey was a rare occurrence in which a long-standing literary anxiety could successfully be translated into legal terms.

EVADING FRAUD IN SENTIMENTAL FICTION

The novel of sentiment, read today mainly by students of literary history, was one of the first successful fictional subgenres in England. With appetites whetted by Laurence Sterne’s A Sentimental Journey through France and Italy (1768) and Henry Mackenzie’s The Man of Feeling (1771), English readers devoured scores of novels aimed at provoking sighs, tears, moans, and the many other symptoms, articulate or not, that testify to the sensitivity of the feeling heart (Marshall 1986; Mullan 1988; Barker-Benfield 1992; Mullan 1996; Csengei 2008). The very point of these novels was to provide occasions for such testimony: sentimentality was a highly theatrical mode that readers embraced in order to display sensitivity to others’ sufferings, thereby exhibiting their compassion to themselves and others (Mullan 1988, 120; Goring 2005).4 Starting around the middle of the century, numerous commentators—perhaps most famously Adam Smith (2002 [1759])— discussed sentiment (or sympathy) as a vital force in a civilized culture.5 Smith’s interest in the communication of sympathy lies primarily with the sufferer, not with the person who is doing the sympathizing. Essential to Smith’s theory is the idea that, in order to elicit a sympathetic response, the sufferer must take care to express the sensation in a way that helps others to comprehend it. For Smith, sympathy does not entail a direct transfer of emotion from one person to another. Rather, the sufferer must “reduce [the passion] to harmony and concord with the emotions of those who are about him” (27). Smith emphasizes the communicative effect of the quest for

4. Goring (2005) observes that “[sentimental] novels were not only sites for the literary staging of sentimental somatic eloquence but sought actively to produce such eloquence among the reading public” and that “there grew up around sentimental novels a culture in which bodily responses were widely lauded as signs of moral status” (142; for a critique see Budd 2008). 5. Studies of sentimental ﬁction usually focus on the novels rather than on how readers described their own reactions. For discussions of readers, see Darnton (1985, 242–49), Barker- Benﬁeld (1992, 259–60), and Paige (2008). 90 LAW & SOCIAL INQUIRY

sympathy, in an expression that combines spontaneity with an awareness of the audience’s expectations and abilities, so that the sufferer’s display of emotion may be seen as an example of natural testimony. Sentimental fiction offered readers an opportunity to practice their response to the kind of performance that Smith contemplates. These novels abound in stories of the virtuous downtrodden and the unlucky in love, and one of the distinctive features of the genre is an insatiable appetite for such tales, so that any given example might include a dozen or more episodes in which the main character meets various unfortunates whose sorrowful demeanor guarantees that they have an interesting tale to tell. The sentimental hero’s responses to these narratives, repeated throughout the novel, offer a model for the reader to emulate.6 Seen in retrospect, the craze for sentimental fiction is somewhat puz- zling. To modern eyes, the tales usually appear more bathetic than pathetic, and indeed many of the genre’s most zealous enthusiasts found it hard to recapture their earlier ardor when they came to reread these books. In a letter to Sir Walter Scott in 1826, Lady Louisa Stuart recalled that when The Man of Feeling was first published, more than fifty years earlier, she saw her “mother and sisters crying over it, dwelling on it with rapture” and was worried that her own performance might not match theirs: “I had a secret dread I should not cry enough to gain the credit of proper sensibility” (quoted in Scott 1930, 273). But now, on returning to the novel and reading it to some friends, she discovered “a sad change in it, or myself...andtheeffect altogether failed. Nobody cried, and at some of the passages, the touches that I used to think so exquisite—oh dear! they laughed” (273). The fiction that had once provided a touchstone for true sympathy had lost its power, and its designs on the reader now seemed merely comical and clumsy. Writers of sentimental fiction seem to have been aware from the outset that their characters might trip on their own props, that the sentimental transaction can be completed only when the reader approaches the experience as an opportunity for natural testimony. As G. A. Starr has observed (1977), novels of sentiment typically include a layer of thoroughly ironized insulation between the representations on display in the novel and the reader’s access to them (512–13). The insulation is usually managed through narrative ploys that distance the author, and potentially the reader, from the characters. Mackenzie’s The Man of Feeling (Mackenzie 1987 [1771]), for example, begins with a preface narrated by an urbane figure who explains that he acquired the remains of the fragmentary manuscript from his hunting

6. Smith 2002 [1759], however, does not present sympathy as an exclusive trait of those with highly developed moral or social abilities. He writes, “This sentiment...isbynomeans confined to the virtuous and the humane, though they may perhaps feel it with the most exquisite sensibility. The greatest ruffian, the most hardened violator of the laws of society, is not altogether without it” (11). Sentimental Frauds 91 companion, a curate, in exchange for what was left of a volume of German philosophy—each set of papers having served their owner as “excellent wadding” for his gun (5). The manuscript’s author, according to the curate, was a “grave, oddish kind of man” known in the neighborhood as “The Ghost,” who “used to walk a-nights” but “was a gentle as a lamb,” and who left the papers behind when he vanished, “no body knows whither” (4–5). The narrator establishes his worldly credentials by mentioning his hunting trip (a true man of feeling would never go hunting) and by pronouncing the manuscript “a bundle of little episodes, put together without art, of no importance on the whole, with something of nature, and little else in them” (5). Here is a man sophisticated enough to distinguish the artful from the artless and willing to appreciate the virtues of the latter—within its limits. He mixes praise and condescension in a fashion that allows the reader to adopt either or both of these attitudes. The distance between the narrator and the main character is remarkable: the abandoned manuscript, written by “The Ghost” about Harley (the novel’s sentimental hero), passes to the curate and then to the prefatory narrator, who is thus at two removes from the supposed author and three removes from Harley. Sterne (2003 [1768]) achieves a more pervasive kind of irony in A Sentimental Journey by making the first-person narrator, Yorick, exhibit physical reactions that border on the erotic. As John Mullan (1996) has observed, if Sterne gave some readers “the chance to be admiring,” he permitted others “to be suspicious of the easy delights of ‘feeling,’” exploiting the sexual implications of that term “as Yorick dwells exactly on the little contacts of eyes and fingers by which he communicates with the young women whom he meets” (239–40). Rather than using a prefatory disclaimer, like Mackenzie, Sterne creates ironic distance by means of a narrator who proclaims his own purity of mind, hinting at suspect interpretations by ostentatiously disavowing them. In a chapter titled “The Case of Delicacy,” for example, Yorick arrives at an inn with only one bed, and must contrive to undress and sleep in the same room as his hostess: “[T]here was one way of doing it, and that I leave to the reader to devise; protesting as I do it, that if it is not the most delicate in nature, ‘tis the fault of his own imagination” (Sterne 2003 [1768], 103). The “case” under examination in this chapter tests the reader’s delicacy no less than Yorick’s.

The Man of Feeling and the Sentimental Author

As these examples show, sentimental novelists were hesitant to align themselves wholeheartedly with their characters and preferred to frame their narratives in ways that allowed for the possibility of separating the emotional force of the narrated events from the emotional stance of the narrator. In both instances, the result has a two-fold aspect. Sterne’s Yorick both announces and denounces at once, loudly declining to imagine what the reader will 92 LAW & SOCIAL INQUIRY

imagine, and thereby showing himself to be perfectly capable of conceiving what he refuses to take responsibility for describing. If Mackenzie is also both affirming and denying the same thing, he shifts the focus toward the position from which it is uttered. As Starr (1977) puts it, Mackenzie presents himself as “a man of the world” and “a genuine man of feeling” at the same time (513). The doubleness qualifies Mackenzie’s identification with Harley (Braudy 1973, 6; Todd 1986, 107–08; Benedict 1994, 118–19; Brodey 2008, 129). The author knows enough of the world to be capable of inhabiting the sentimental hero’s point of view, has experienced enough to see through Harley’s eyes, but is not merely reducible to Harley—a point that Mackenzie addressed explicitly in his personal correspondence.7 While the narrative often aligns the reader with Harley’s perspective, the preface opens up a distanced, third-person perspective (Starr 1977, 513). Nor was the preface an afterthought, an accommodation that Mackenzie added to the narrative. In a letter to his cousin in July 1769, Mackenzie wrote, “In order to give myself entire Liberty in the Historical Part of the Performance...Ibegan with [the] Introduction & write now & then a Chapter as I have Leisure or Inclination” (quoted in Drescher 1967, 16). It seems that by writing the preface first, Mackenzie clarified his position to his own satisfaction, as if he needed to resolve that issue before he felt free (had “entire Liberty”) to devote himself to the scenes of sentiment that pervade the novel. The ironized framework also preemptively answers the reader who would dismiss the novel as a sentimental fraud, a mechanical or even cynically commercial effort to produce some waterworks in exchange for cash (a transaction reminiscent of the exchange by which Mackenzie’s narrator claims to have acquired and then published a manuscript he did not write). To the skeptical reader, the author might be understood to say that there can be no imposition when there was never an invitation to take the story at face value, because the opportunity to identify with the characters was so thoroughly qualified to begin with. No inducement, no fraud. An explicit disavowal, however, would jeopardize the novel’s appeal for the readership it seeks, and so Mackenzie must use indirection to present this defense. For such a defense to be plausible, the charge of fraud hardly needs to be endowed with legal force. Mirroring the distinction between legal and natural testimony, we might distinguish between legal and natural fraud. While the former uses false representations aimed at inducing the victim to part with something of value, the latter uses falsehoods aimed at making the victim credit the speaker with a kind of moral authority—which the victim relies on to define his own character. Sentimental fraud could thus be understood as a

7. In a letter to his cousin, dated August 3, 1771—about four months after the book’s publication—Mackenzie observed that some readers “believ’d [Harley] to have been...meant as a Representative of myself; while others...hadSagacity enough to discover the Fallacy of that Opinion” (quoted in Drescher 1967, 95). Sentimental Frauds 93 form of natural fraud, involving emotional rather than moral authority. The thing of value is the victim’s opinion of the speaker and, by extension, of himself. Whether Mackenzie would have expressly articulated the problem to himself in this way is another question. He would certainly have understood the legal structure underlying the analogy, even if he did not think about the problem of sentimental authorship in expressly legal terms. Moreover, the connection was underscored by other contemporary cases in which writers insisted that their compositions were the “found manuscripts” of much earlier authors, hoping that readers might be persuaded to confer on the text a kind of historical prestige and authority that would otherwise be lacking.8 Mackenzie draws on this practice in the prefatory narrative about the source of “The Ghost’s” manuscript. Articled as a law clerk in Edinburgh from 1761 to 1765, starting at age sixteen, Mackenzie then spent three years studying law in London (1765– 1768) and began writing The Man of Feeling during his final year there. As his biographer notes, within two years after the novel was published, Mackenzie bought out his law partner’s practice and became “the acknowledged head of his branch of practice in Scotland”—a practice that involved revenue dis- putes in the court of exchequer (Thompson 1931, 81). Mackenzie ultimately became comptroller general of taxes for Scotland. His contemporaries described him as a “usefully zealous and active” public servant and a lawyer committed to “the steady and judicious exercise of the most respectable talents for business” (Stephens 1803, 387). In 1825, when Mackenzie was eighty, Sir Walter Scott (1972 [1890]) observed that Harley, the hero of the Man of Feeling, conveyed a very inaccurate impression of the author’s personality: “[Y]ou would expect a retired, modest, somewhat affected man, with a white handkerchief, and a sigh ready for every sentiment. No such thing; [Mackenzie] is alert as a contracting tailor’s needle in every sort of business—a politician and a sportsman—shoots and fishes...even to this day” (26). Mackenzie occasionally points up this contrast within the narrative, as when we are told that, having been ill-advisedly “set...toread Coke upon Littleton,” Harley “profited by little by the perusal” (Mackenzie 1987 [1771], 12; Womersley 2000, 390). Given the difference between Mackenzie’s personality and his protagonist’s, it is not surprising that the author chose to

8. Throughout the 1760s, for example, James Macpherson published a large volume of poetry (beginning with Fragments of Ancient Poetry in 1760) as the work of Ossian, a third- century Gaelic bard (Macpherson 1760), and during the same decade, Thomas Chatterton wrote a series of poems that he attributed to Thomas Rowley, a ﬁfteenth-century writer (Chatterton 1777). Only a few of the “Rowley” poems were published before Thomas Tyrwhitt’s edition in 1777, but Baines (1996) notes that “[w]ithin a few months of [Chatterton’s] death” in August 1770, “the manuscripts were already circulating in London literary salons” (48). For further discussion, see Stewart (1994, 148–53), Baines (1999), Groom (1996, 2002), Russett (2006), and Lynch (2008). Henige (2009) provides a helpful survey of modern examples of writers posing as editors of materials presented as historical documents. 94 LAW & SOCIAL INQUIRY

package the novel in a way that separates the two and creates some doubt about the kind of esteem that Harley merits.9 Mackenzie’s editorial maneuverings, then, may be understood as a kind of prefatory disclaimer, cagier in its tone and effects than the modern version, but reflecting some of the same concerns as the boilerplate that novelists com- monly use today as a lawsuit-repellant. The nature of the truth claim advanced by eighteenth-century novels had in fact been a matter of some uncertainty. Throughout the century there are numerous examples of novels that claimed to be entirely truthful, and while most readers now take them to be merely formulaic utterances that could have fooled no one, there is good reason to think that until the mid-century these claims were largely credited—or at least were meant to be credited—and that eighteenth-century readers needed to be taught how to appreciate the plausibility of realistic stories that were made up, rather than rejecting them because they were not true (Gallagher 1994, 162–74; 2006). In the late 1740s, Samuel Richardson could explain, when declining to use a preface written by a friend for Clarissa, that the contribution was too explicit in acknowledging the book’s fictitious status: “I could wish,” Richardson wrote, “that the Air of Genuineness had been kept up, tho’ I want not the letters to be thought genuine; only so far kept up, I mean, as they should not prefatically be owned not to be genuine” (quoted in Carroll 1964, 85). If Richardson did not expect his readers to believe the events were real, he evidently thought that the reading experience and the novel’s exemplary effects would be diminished if readers were reminded too directly that it was all made up.10 Not all of Richardson’s contemporaries shared this aesthetic, and some, like Henry Fielding, preferred to confront the novel’s fictionality directly and to characterize the genre’s mission as delivering moral truth through invented characters (Zimmerman 1996, 99–178). Mackenzie might have embraced that description, but it does not quite resolve the problem of fraud, because the sentimental novel delivers moral truth by striving for a kind of authenticity or verifiability that we do not find in the typical novel. Earlier novels that claimed to be true were either romans-à-clef about goings-on in high life or stories about strange and unusual adventures such as Robinson Crusoe (Gallagher 2006, 339). In the first case, proof of the novel’s falsity might lead to charges of libel, as writers such as Delarivier Manley had learned at the beginning of the century (Gallagher

9. Drescher (1967) similarly notes “the difference...between the author and his work, a difference particularly striking in the case of Edinburgh’s literary lawyer who had nothing about him of the sentimental and lachrymose Harley” (xii). Drescher relates a story in which Mackenzie described “the intense enjoyment he had had at a cockfight,” prompting his wife to respond, “Oh, Harry, Harry, your feeling is all on paper” (xii). 10. As Richardson put it, acknowledging that the characters’ letters were fictional might have the effect of “weakening their Influence where any of them are aimed to be exemplary . . . [and] hurting that kind of Historical Faith which Fiction...isgenerally read with” (quoted in Carroll 1964, 85). Sentimental Frauds 95

1994, 88–90). Libel charges, and the assumptions they reflected about refer- ential truth in fiction, persisted at least through the middle of the eighteenth century (Lockwood 1989). The tale of adventure might seem to support charges of fraudulent inducement on the same ground as the suits against Frey—namely, that readers would not have purchased the book had they known it to be false—except that the impetus behind the fraud claim is lacking. The sense of betrayal cannot, in this instance, depend on an unwar- ranted display of emotion (since Robinson Crusoe does not solicit that kind of response) and would instead have to involve the claim that readers were falsely made to experience reactions such as suspense (when Crusoe finds the footprint on the sand) and curiosity (when Crusoe goes about providing food and shelter). But since those reactions are the same whether or not the story is true (Brewer and Lichtenstein 1982), an exposé would not leave readers feeling cheated—and indeed when Charles Gildon (1719, 8, 33) attacked the novel, he criticized Defoe as a liar but did not accuse him of emotional manipulation (whereas Richardson faced precisely this accusation from some of his critics). That no one sued Defoe at the time is hardly surprising, given the preference for libel rather than fraud as the favored basis for literary prosecution.11 Even a modern rendition of Defoe’s venture, however, would seem to be incapable of producing the sense of betrayal that helped to pave the way for the lawsuits against Frey. Putting aside the question of legal fraud, the tale of adventure lacks the warrant of emotional sincerity that the sentimental novel depends on, and so the latter can leave its readers feeling cheated in ways that that the former cannot. Emotional self-knowledge and the opportunity to display it to others are precisely what The Man of Feeling claimed to provide by offering itself as a means of identifying and calibrating the social effects of sentiment. Like a contract that is “instinct with an obligation” but does not expressly articulate the promise under dispute (McCall Co. v. Wright 1909, 779), Mackenzie’s novel could be described as instinct with emotional sincerity. That is why, for example, a contemporary reviewer wrote that anyone “who weeps not over some of the scenes it describes, has no sensibility of mind” (Monthly Review 1771, 418). Accordingly, Mackenzie’s effort to disaffiliate himself from the perspective of the main character had everything to do with the kind of moral truth he was claiming to purvey, rather than with any “air of genuineness” that he was trying to preserve. Even without his elaborately contrived genealogy for the manuscript, Mackenzie could not have been charged with legal fraud except in the kind of mock-court of literary criticism that some book reviewers presided over in the periodicals (Bertelsen 1997, 351). The law of fraud was, as one historian observes, “unsettled” in the eighteenth century (Wright 1873, 10), but to the

11. On Defoe’s prosecutions for libel, see Novak (2003, 185–88, 429–30, 471). 96 LAW & SOCIAL INQUIRY

extent that any clear principle had been articulated, the crime was defined in terms of the kind of deceit practiced by the offender. In R. v. Jones (1703), the court of Queen’s Bench held that fraud could be charged only against those who used “artful contrivance[s]”; accordingly, where the deceit was easily seen through, and could be detected by “a person of ordinary capacity,” there was nothing to prosecute (Anonymous 1703, 864).12 Thus, it was fraudulent to use a “false token” (863) or “false dice” (864) but not to utter a “bare naked Lie” (Hawkins 1716, 188) as in Jones, where the defendant had merely claimed that he was collecting a debt on another’s behalf. In short, the law would not “punish one man because another is a fool” (864). Moreover, fraud was chargeable only if the statement was meant to deceive the victim; as one commentator explained, a representation was not “construed to be fraudulent” unless the defendant had a “Purpose and Intent to defraud at the Time” (Anonymous 1710, 111). The effect of this doctrine is to associate fraud with inventiveness and imagination—traits also associated with novelists. Yet despite its kinship with the false token, a novel that acknowledges its artifice could not be deemed fraudulent under this approach, nor even a novel that insists on its own truth, because neither one involves the right kind of “artful contrivance.” If a “bare naked lie” does not rise to the level of fraud because only a fool would trust a representation unaccompanied by something that looks like physical proof, then novelists should escape liability by lack of the same token. Even when novels claim to be true, they do not use deceitful instruments to enhance their credibility. The Man of Feeling, however, presents itself as precisely such an instru- ment, so that its depictions of sentiment are also the tools for measuring sentiment in oneself and others. When a novel claims not to describe true events but to tell the truth about the reader, and to be the gauge of its own accuracy, who is to say whether it is transparently false, cleverly deceptive, or neither? From one perspective, the novel merely articulates a hypothesis that anyone may reject or may indulge with perhaps only an intellectual curiosity about the consequences (Bender 1997). For readers like Lady Louisa Stuart and her mother and sisters—readers whom Mackenzie meant to reach—the novel’s efficacy was taken for granted and any failure would reflect on them, not on the book (Scott 1930, 273). Moreover, as noted earlier, Mackenzie’s disclaimer is highly equivocal and hardly amounts to a flat assertion about where the reader’s sympathies should lie. It is the convergence of these problems—on the one hand, the legal emphasis on intentional deceit and manipulation and, on the other hand, the combination of sincerity and artifice that the genre seemed to demand—that explains the anxiety about fraud that Mackenzie’s preface reflects, and also the

12. Though captioned as “Anonymous” in the Modern Reports, the case is captioned as “R. v. Jones” in other law reports by Salkeld and Lord Raymond (R. v. Jones 1703; see 91 Eng. Rep. 330 (Q.B. 1703) and 92 Eng. Rep. 174 (Q.B. 1703). Sentimental Frauds 97 equivocal terms in which it is couched. As a general proposition, it seems obvious that a novel cannot be fraudulent, but once readers have accepted the premise that a work of fiction can assess their personality, the sentimental novel appears, at least, to be capable of satisfying the conditions that constitute fraud—if it could be proved that the author was not in fact truly sentimental. This is a case, if ever there was one, in which readers might believe that no character in the book corresponds to any living person but might still imagine that the author is claiming, on the basis of his own experience, to tell them the truth about who they are (and to invite them to learn the truth about others). That is the concern that Mackenzie’s preface addresses, however equivocally. But just as modern novelists sometimes find that their prefatory disclaimers are not sufficient to repel claims of libel, Mackenzie was to discover that questions of deceit and fraud were not so easily evaded.

Forgery as Sentimental Fraud

Besides inserting a surrogate between himself and Harley, Mackenzie also published the novel anonymously, and this created the opportunity for another kind of fraud: a literary forgery undertaken by a writer who seems to have believed devoutly in the unity of author and character. But while forgery might seem to be an obvious candidate for legal fraud, in this case there is little to differentiate it from the sentimental fraud that might be charged against Mackenzie—because in both instances, the deceit turns on a false claim that the author makes about himself, rather than on any material loss that the author seeks to impose on others. If Mackenzie was struggling to manage his position as author of The Man of Feeling, both encouraging and disavowing the equation between sentimental hero and author, the forger sought to exploit the same equation in order to enhance his reputation. Forgery was a capital offense in eighteenth-century England and was among the most serious crimes against property (McGowen 2002); in this case, however, the forger did not seek to dispute Mackenzie’s property right in the novel, but was primarily interested in being known as a man of feeling. Charles Steuart Eccles, a clergyman living in Bath, took advantage of the novel’s anonymity to stake his own claim to its authorship, which he supported by producing a manuscript complete with “blottings, interlineations, and corrections,” as James Boswell reported (Boswell 1980 [1791], 255). One of Eccles’s friends, describing “the shattered M.S. of the Man of Feeling” that he had shown her, recalled taking “particular notice of the Names of Harley, Walton, &c. written in enlarged Characters” (quoted in Drescher 1989, 73). If by manufacturing a rough draft, Eccles made himself out to be a kind of ghostwriter, he also recalls “The Ghost” of Mackenzie’s preface in a more literal sense. Eccles’s claims to authorship began to circulate publicly only after his death; while he often boasted to his friends about his literary 98 LAW & SOCIAL INQUIRY

achievements, and even spoke of plans to publish the book under his own name, he apparently never sought any recognition beyond his immediate circle. In 1777, while rescuing a drowning boy, Eccles himself drowned, and his friends, mindful of his sentimental credentials, considered this act to be a ﬁtting close to the life of a man of feeling. The newspapers found the story irresistible and sadly reported the loss of a young man who “would have been a great Ornament to Literature, had he not unfortunately been cut off at so early a Period of Life, being but about 30 years of age” (Daily Advertiser 1777; General Evening Post 1777).13 The event also inspired a eulogy (written in imitation of Gray’s “Elegy in a Country Churchyard”) that trumpeted Eccles’s literary merits (Meyler 1777a, 1777b).14 These articles, appearing six years after the novel’s initial publication, were the ﬁrst to broadcast his claim to the wider public, with the result that for some months after his death, Eccles haunted Mackenzie, who until then had heard nothing about this rival.15 Though Eccles left an incomplete manuscript of his own, titled The Senti- mental Heart, his heirs did not try to scare a new publication out of his literary remains, but instead allowed his claims to sentimental authorship to fade away (Drescher 1989, 74). According to a friend of Mackenzie’s, Eccles made his copy of The Man of Feeling from the original manuscript, which he saw because the publisher sought “the opinion of a literary friend” who read it while traveling to Bath, “where for some time it was mislaid” (Thompson 1931, 124). Most eighteenth-century novels were published anonymously (Raven 2003, 143), and Eccles was not alone in exploiting this circumstance, but even among those who wanted the reputation of an author, few went to the trouble of manufacturing evidence for their claims.16 Perhaps Eccles believed that a bare assertion would have been worthless in a culture that had, by this time, begun to emphasize the value of circumstantial evidence in many areas of life

13. As was common at the time, the same article appeared in both newspapers. See also Gazetteer and New Daily Advertiser (1777) describing Eccles’s death and quoting from the Man of Feeling with the observation that “the author’s own words...[are] the best character that can be given,” and the Morning Chronicle and London Advertiser’s (1777) letter to the editor, hoping for “a monument to the good man’s memory.” 14. The same poem was printed in two newspapers. It was published anonymously; the attribution to William Meyler is established in Drescher (1989, 85). Drescher also notes that the elegy was published separately, later the same year (85 note 7). 15. In a letter to Philip York, second Earl of Hardwicke, on June 21, 1779, Mackenzie remarked that he had been unaware of his own literary reputation until “a Pretender to my little Publications appeared at Bath; & it was from the Epitaph & Elegies on his Death, that I ﬁrst knew the Author of the Man of Feeling to be a Title of any Consequence” (quoted in Drescher 1989, 84). 16. Boswell (1980 [1791], 254) mentions a few other examples, but none involving fabricated manuscripts, produced to challenge another writer’s authorial claims. It is notewor- thy, however, that the Eccles episode occurred amid a spate of other literary forgeries, such as those involving Macpherson and Chatterton, discussed above. The ensuing controversies turned in part on the availability and authenticity of the supposedly “ancient” manuscripts. Sentimental Frauds 99

(Welsh 1992, ix; Lynch 2008, 53). If so, that explanation reaffirms the legal concerns underlying this affair, and it is not surprising that the rebuttal brought these concerns to the fore. Initially, Mackenzie asked his publishers, William Strahan and Joseph Cadell, to respond (Drescher 1989, 72). They issued a statement in several newspapers announcing that the novel was printed “from Manuscripts in Mr. MACKENZIE’s Hand writing, with which, as well as with the Writer himself, we have long been intimately acquainted” and adding that Mackenzie had been paid “a valuable Consideration for the Copy-Right” (St. James’s Chronicle or the British Evening Post (London) 1777, 2; London Chronicle 1777, 447; Public Advertiser (London) 1777, 2).17 This response registers the legal stakes of Eccles’s assertion on two levels. First, there is a question of property ownership. The author does not just deserve credit for his ability to inspire sympathy in his many readers; he also deserves the financial reward that accrues to such a writer. A forgery aimed at impugning the validity of his copyright would be a fraudulent attempt to jeopardize the publishers’ “valuable Consideration.” Second, the publishers answer Eccles’s proof with their own, based on “intimate acquaintan[ce]” with the author and his handwrit- ing. The battle between forensic narratives inevitably poses the question as to whose evidence would be found credible in court. In spite of this announcement, the Westminster Magazine persisted in the misattribution, prompting Mackenzie to respond in terms that echoed his publishers’ language. “I am laid under the necessity of taking immediate Notice,” he wrote to the editor, “[a]s yours is the only public Renewal of the Dispute since the Appearance of the [publishers’] Advert....[T]he claim has been entered on either Side & the Decision involves not only a Determina- tion of Property, but a Conviction of Imposture” (quoted in Drescher 1989, 75). Even more explicitly than his publishers, Mackenzie conceives of the dispute in legal terms, imagining an adversarial conflict with formal argu- ments “on either Side,” leading to a trial verdict that would resolve the question of ownership and convict Eccles of fraud.18 The forensic rhetoric says more about the threat that Mackenzie and his publishers perceived than about the threat that Eccles posed. A correspon- dent informed Mackenzie that Eccles had once said that he “intended to publish a New and Complete edition of his Works with his Name prefixed thereto” and had given a copy of The Man of Feeling to “one Grierson, a Printer of Dublin, now dead” (quoted in Drescher 1989, 73). That Eccles told his friends

17. Boswell (1980 [1791], 255) also discusses the publishers’ notice. 18. Mackenzie’s interest in legal and literary issues would return him to the topic of fraud when he was asked, in 1797, to chair the committee charged with determining the authenticity of the “fragments of ancient poetry” that James Macpherson published in the 1760s (discussed above; Mackenzie 1805; Drescher 1989, 31, 192–209). As Drescher (1989) explains, Macken- zie’s Report concluded that “poems existed which could be called Ossianic, and...Macpherson had liberally added passages of his own to create so-called epics” (193 note 3). 100 LAW & SOCIAL INQUIRY

about these efforts, however, does not mean that he ever undertook them. The only publication credited to Eccles is a sermon titled The Necessity of Humiliation (1776), a criticism of the American colonists. A Dublin edition of The Man of Feeling was published in 1771, but like the London edition, it gives no author on the title page, and Grierson is not among the printers listed in the imprint (Mackenzie 1771).19 Eccles probably had nothing to do with this edition; the English copyright laws did not extend to Ireland, and successful English books were often reprinted in Dublin (Pollard 1989, vi, 66–69). The likelier explanation for the draft and the talk of looking for a publisher is that Eccles enjoyed cultivating the status of an author among his friends, but did not plan to go any further with his pretense to have written Mackenzie’s novel. Just before his death, he read to a friend from the manuscript of The Sympathetic Heart and reportedly told her that “he intended to publish [it] as a sequel to the M[an] of Feeling” (quoted in Drescher 1989, 74), but even if he had completed the book, there is no telling whether he would have been willing to repeat his claim in print.20 It is signiﬁcant that he read from his work in progress, and conspicuously displayed his drafts, but did not try to publish The Man of Feeling as his own during the six years after he copied it and before he died. Recall the names “written in enlarged Charac- ters” that stood out in Eccles’s papers. In a manuscript designed for publication, it would serve no purpose to render the names so prominently, but this measure makes excellent sense if the point is to create an immediately recognizable text so that the casual viewer need not examine the blottings and interlineations too closely. We may wonder how much of the novel Eccles bothered to copy. The same informant who saw the enlarged names also claimed that “she saw [Eccles] write several Parts of the Man of Feeling” (73). Again, his self-conscious posturing indicates his desire to play the role of the author so that he might relish the exchange of compliments occasioned by his performance. Not satisﬁed with the kind of credit due to the average reader, who could display his sensibility by his response to the text, Eccles sought the credit due to its originator. If Mackenzie and his publishers mistook the challenge as a legal one, that is hardly surprising, because the evidence that Eccles used as a form of sentimental testimony, serving to validate his character, was indistinguishable from the kind of evidence that could support a legal claim in a dispute over authorship. Both forms of

19. Among the Griersons involved in the publishing industry (Plomer 1968 [1932], 387), the only possible candidate appears to be Hugh Grierson, who died on May 2, 1771, about three weeks after the first London edition of The Man of Feeling was published (Greeves 1953, 302, 305–06). Eccles was originally from Ireland, and may have known of Hugh Grierson for that reason. 20. Further, the label of a “sequel” would not, to his contemporaries, have connoted authorship of the earlier novel. As Brewer (2005) notes, it was common during the eighteenth century to publish sequels to other writers’ books. Sentimental Frauds 101 evidence collide in the same document, leading Mackenzie to see a threat where Eccles had aimed at self-promotion. As this episode shows, if Mackenzie refused to warrant that his hero was a sincere reflection of the author’s own image, someone else was willing to make the warranty on his behalf, seemingly without registering the irony entailed in this forged warranty. That Eccles could lay claim to the novel was a result of its anonymous publication, not of Mackenzie’s prefatory evasions— but in asserting the claim, Eccles unwittingly affirmed the wisdom behind those evasions. For Eccles, apparently, it was obvious that the author of The Man of Feeling must exemplify Harley’s virtues and must have created Harley as an extension of his own personality. Doubtless there were numerous other readers who similarly ignored Mackenzie’s feint of bundling up the novel’s authorial persona in a story about gun wadding.

CONFRONTING FRAUD IN DAVID SIMPLE

Sarah Fielding’s The Adventures of David Simple (1998 [1744]) offers a striking contrast to Mackenzie’s approach. Though in many ways a precursor of the later eighteenth-century novel of sentiment, David Simple does without the framing devices and dwells obsessively on fraud in its plot. The insistence that the tender emotions must be on display and the danger that they may be feigned are forever present in Fielding’s novel. David Simple thus exhibits, in a particularly dramatic form, the anxieties about authenticity that would bedevil the sentimental novels that followed—anxieties that apply not only to the authors of these novels but also to their readers, intent as they were on assuring themselves about their truly sentimental nature. If Mackenzie manages to have it both ways by including a preface that lets the reader take it either way, Fielding directly confronts the problem of fraud and accepts the demand for authorial sincerity that underwrites the sentimental enterprise. Some plot exposition will indicate the prominence of sympathetic exchange and its duplicitous imitations in David Simple. The hero’s father dies at the outset, and David’s younger brother, Daniel, names himself the “sole Heir and Executor” in a forgery of their father’s will (11). Soon afterwards, in an episode discussed more fully below, Daniel antagonizes his brother, who sets off on his “travels...inthesearch of a real friend,” commemorated in the novel’s subtitle. Wandering through London, David meets people of various classes and professions—whist-players and stockbrokers, carpers and carpenters, literary critics and people of fashion—but they all behave similarly, struggling with each other for the upper hand and showing no regard for any interests but their own. The novel shifts gears when David meets Cynthia, one of the three companions who will help him form a sympathetic community at the novel’s end. At this point, the focus changes from back- biters and charlatans to a series of hard luck cases. They tell David their woes, 102 LAW & SOCIAL INQUIRY

and he responds with sympathy and a donation to alleviate their sufferings. Cynthia, the first of these meritorious sufferers, explains how she was disin- herited for refusing to enter into an arranged marriage and how she has been forced to earn her living as a lady’s companion, even though she can barely tolerate her employer’s irritability and impatience. After David befriends her and frees her from her servitude, they meet another similarly minded pair, Camilla and her brother Valentine. These siblings are also victims of familial strife, in this case because of their evil stepmother, Livia, who has persuaded their father to disinherit them and to send them away. Once the four have assembled, the remainder of the novel consists of a series of episodes in which the friends travel about London, meeting candi- dates for sympathy, listening to their stories, and responding accordingly—by giving money to the deserving and fleeing in horror from the depraved. Not only do these exchanges serve implicitly as a model for the reader, as Goring (2005, 153) suggests, but Fielding also makes the message explicit, as, for example, when we are told that after David rewards a worthy sufferer, the hero’s “Raptures...canonly be imagined, by those People who are capable of the same Actions” (Fielding 1998 [1744], 133). Finally, after concluding that London is rife with scoundrels and egotists, the four friends retire to the country. Fielding wrote two sequels, and in the latter, Volume the Last (1998 [1753]), the egotists destroy the sympathists’ rural serenity, killing them off one by one, leaving only Cynthia to face an ambiguous future at the novel’s close.21 While the sequel offers a fascinating reconsideration of David Simple’s themes, my focus here will be confined to the 1744 text. Daniel’s forgery of his father’s will marks his first act of misattribution, but he displays his manipulative talents more artfully when he controls his brother’s will by inducing David to storm out of the house. Daniel’s technique, shared by several of the novel’s other villains, involves a kind of one-act play with an unwitting but carefully chosen audience. Daniel begins by speaking to David in the cadences of the house-proud landlord, “instead of talking in his usual Style” about their joint ownership of the house (Fielding 1998 [1744], 12). This change of tone strikes David “dumb with Amaze- ment,” leaving him unable to “command himself” (13). Thus, it is Daniel who commands the situation. Having arranged the acoustics so that “the Servants might hear how [David] used him, and be Witnesses he was not in fault,” Daniel calmly goads his brother on, “aggravating his Passion, till it was raised to such a height, as to the unthinking World would make him appear in the wrong” (13). No longer master of the house nor even of himself, David reacts

21. Volume the Last was not published together with David Simple in the eighteenth century, but recent editions have included both titles, and they are now often regarded as part of the same narrative. Peter Sabor includes both titles in his edition (Fielding 1998 [1744], 1998 [1753]). The most useful discussion of the relation between the two is Terry (2004), which shows how the sequel “rescind[s] the Adventures’ earlier endorsement of amicable sensibility” (538). Sentimental Frauds 103 according to plan and inadvertently provides Daniel with the witnesses he requires: witnesses who represent “the unthinking World” and who can be relied on to persuade the rest of that world to share their view. David has, in effect, been induced to discredit himself in a statement that the witnesses perceive as natural testimony. This episode contains all the essential ingredients that the novel’s other verbal strategists will use in their plots: an unsuspecting audience situated close enough to overhear the dialogue, a pliant and sensitive naïf, and a script laden with a heavy dose of self-incrimination. Undertaken by schemers who mean to eliminate the other claimants and maximize their own interest, these plots are designed not only to expel the victims, but to empty them out as well, draining them of any independent volition. The danger therefore is twofold: the malefactors will be taken for put-upon martyrs, taxed beyond the limits of their good will, and the truly virtuous will be seen as odious parasites who earned their dismissal. The “unthinking world” will not merely lump the two sorts together, but will reverse the two categories and will base its economy of trust and credit on a completely false foundation. The resulting fraud often drifts into the category of legal fraud, because the credit conferred on the villains often includes a financial aspect. The resources that Daniel marshals in working his fraud are especially worrisome because he leads David to implicate himself by his own words. We have seen that fraud was punishable only when it involved deceptive practices that were not readily seen through. But if David cannot see through the deceit, it is because he has helped to produce it, and he lacks the distance to understand how others will see him. Daniel’s ploy makes David seem the kind of “fool” who deserves no protection by the law. The same pattern is on display during the second of the novel’s melodramatic confrontations, which pits the ingenuous Camilla against Livia, her malevolent stepmother. Like Daniel, who acknowledges to himself that he would find it “impossible...torefuse any thing he thought valuable, tho’ he was to be guilty of ever so much Treachery to obtain it” (9), Livia concludes that she cannot be truly happy until she no longer has to share her husband’s support and affections with anyone else, and so she persuades him to disown his children.22 To that end, Livia claims to have learned the truth about her stepchildren’s “private affairs,” and after ensuring that her husband can overhear the argument, she taxes Camilla with “all the most shocking Things she could think of” (119). Camilla is shocked into silence, and when her father comes in “to know what [is] the matter,” Livia protects herself by “repeat[ing] some trifling thing, which however had two Meanings,” and giving it a more “favourable Sense” (120). Making herself out to be the victimized one, Livia inflames her husband’s anger on her behalf, and events quickly unfold as she

22. Peter Sabor notes that Fielding’s penchant for depictions of evil stepmothers may have reﬂected her own perceptions of her father’s later wives (Fielding 2004 [1760], 72 note 1). 104 LAW & SOCIAL INQUIRY

has planned. Camilla and her brother leave home, concluding that they will never regain their father’s affections, and Livia gains complete control over her husband and his assets. Similar tactics figure again in the novel’s third scenario of emotional deceit, which in many respects simply repeats the dynamics we have already observed—but with a kind of blunt dishonesty that seems disappointing after the earlier examples. Late in the novel, David and his three friends meet the mysterious Isabelle, who bears the marks of a victim suffering from “some terrible Distress, which ha[s]...thrown [her] into a settled Melancholy” (152). Desperate to know the cause, David sends Cynthia as an emissary, and by their “continual Importunities,” they at last persuade Isabelle to tell her tale, despite “whatever Pain it would occasion her, to comply with their Requests” (153). The full story of her woes does not bear repetition here, but one of its opening chapters adds to the novel’s catalogue of inventive impos- tors. This part of Isabelle’s story revolves around her brother (the Marquis de Stainville), his friend Dumont, and their classmate Le Neuf, an impoverished arriviste intent on displacing Dumont in Stainville’s affections. With Dumont out of the picture, Le Neuf would have unlimited access to the generous Stainville’s purse. To that end, Le Neuf rehearses a dialogue with a classmate who can imitate Dumont’s voice perfectly. When Stainville is nearby, behind a locked door, the impersonator ridicules him, and Le Neuf pretends to be outraged at the supposed Dumont’s hypocrisy. Unlike Livia, who if challenged could always stand behind the literal truth of her words, Le Neuf has not devised a particularly sophisticated plot. Perhaps for that reason, Fielding does not allow the imposition to succeed: though Stainville is initially deceived, Dumont soon exposes the fraud. Le Neuf’s choice of such an easily discover- able ruse turns out to be the very flaw that proves him unworthy of the other schemers’ company. At the same time, Le Neuf adapts the masterminds’ stratagem in a way that brings him closer to the modern false memoirist. He and his assistant both adopt false identities, and Le Neuf stages the event so as to make himself appealing not to the public at large (“the unthinking world” that Daniel envisions as his audience), but rather to the “naturally excessively passionate” Stainville—a warmhearted soul who prides himself on his ability to be moved in a way that the average person is not. Daniel and Livia, similarly bent on self-advancement, are mainly concerned to discredit their rivals and only by contrast to announce their own virtues. In those schemes, the falsely elicited, apparently natural testimony comes from the surprised and agitated exclama- tions of the victims. Like the trumped-up tale trumpeted on Oprah, Le Neuf’s plot aims to stir the passions of a sentimental audience, which in this case consists of one person—Stainville. It was argued above that Eccles, in producing his own manuscript of The Man of Feeling, transformed what would typically be an act of legal fraud into Sentimental Frauds 105 an act of natural fraud, because he was interested in boosting his own sentimental credentials, rather than the more familiar goal of using the forgery for financial gain. Fielding does nearly the reverse in her repeated scenarios of theatrical deceit. In David Simple, the villains seek economic self- advancement by provoking their enemies to betray themselves before an audience who will imagine that they are now learning the truth. While parading one’s true sentiments is normally an act of natural testimony, capable of supporting natural fraud, Fielding presents these conflicts in an emphatically evidentiary mode. Le Neuf’s dialogue, for example, imitates the form of cross-examination by including lines in which Le Neuf purports to confront his interlocutor, while the latter loudly proclaims his own bad motives. Even Camilla, who remains silent in the face of Livia’s accusations, is seemingly offered the opportunity to defend herself—an opportunity that Livia seizes by supplying her own answer and daring Camilla to correct her. As with testimony in the emotional public sphere of the talk show, cross- examination is the most difficult requirement to simulate. Fielding solves that problem by making it seem unnecessary; as one of the characters observes, “when the Passions are actuated...Nature appears as she is” (62). When we believe that a speaker’s impassioned outburst reveals her true nature, we are unlikely to concern ourselves about the evidentiary objections that might normally arise at trial, as the “excited utterance” exception to the hearsay rule suggests (Wigmore 1904, 3: 2250).23 The kind of testimonial evidence manu- factured by Daniel, Livia, and Le Neuf might almost be prompted by an expectation of having to appear at trial and to be ready with a defense based on out-of-court statements that meet the requirements of testimony offered on the witness stand. In each instance, the deceit is directly linked to the misappropriation of property, a distinctive feature of legal fraud. For Livia and Le Neuf, deceit is a means of obtaining assets that would otherwise be spent on someone else. David completes his own disinheritance through the attack that his brother provokes, so that while the illegitimate transfer of property precedes this episode, David’s outburst adds the emotional imprimatur that validates what had otherwise seemed an inexplicable decision by their father. Fielding’s novel makes strenuous and often labored efforts to associate sentimental fraud with legal fraud, imagining conditions that would make the two indistinguishable.

23. Wigmore (1904) explains why excited utterances are admissible in court, despite their status as hearsay: “Since this utterance is made under the immediate and uncontrolled domi- nation of the senses, and during the period when considerations of self-interest could not have been brought fully to bear by reasoned reﬂection, the utterance may be taken as particularly trustworthy (or, at least, as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker’s belief” (2250). Wigmore ﬁnds the origins of the “excited utterance” exception in a late seventeenth-century case involving assault and battery, in which the court held that an out-of-court statement by one of the plaintiffs was admissible because she uttered the words “before...shehadtime to devise or contrive anything for her own advantage” (Thompson v. Trevanion 1693, 1057). 106 LAW & SOCIAL INQUIRY

The result, in a novel that focuses on displays of sympathy and that expressly encourages readers to join the act, is to emphasize the authorial certification of authenticity that Mackenzie avoids. If David Simple’s conduct can be understood only “by those People who are capable of the same Actions” (Fielding 1998 [1744], 153), and if sentimental fraud keeps tending in the direction of legal fraud, then the author cannot be justified in making up the novel’s many scenes of sympathy unless she counts herself—and means for the reader to count her—among the truly sentimental. In a novel whose business it is to condemn the sentimental frauds, the author must be taken to warrant her own sentimental character. Only on that premise can her fictional representations be justified as ones that merit the status of natural testimony so that readers in turn may imagine that their own reactions belong in the same category. Fielding embraces the premise that later sentimental novelists would try to finesse—the premise that the morally sincere author, whose stories truly reflect her own beliefs and reactions, is the only one who can legitimately make an emotional claim on the reader. Fielding was far from unique in basing her authority on this foundation, which continues to be appealing and troubling for modern writers. That Fielding could unify sentimental fraud and legal fraud in her novel, however, does not necessarily make the problem a legal one for contemporary writers, and the connection has for the most part remained in the realm of fiction. At the same time, it can appear very compelling to members of imagined communities and by that route can have real consequences.

CONCLUSION: THE FUTURE OF LITERARY FRAUD

The Frey lawsuit involved a constellation of factors that are only partially present in the other examples discussed here. Defoe’s fiction makes claims of factual accuracy but does not invite the kind of emotional investment that would leave readers dismayed to learn that the story was made up. Eccles produced his forgery to prove that he was the archetypal man of feeling and deserved all of the admiration that accompanies that title—but he stopped there and made no effort to profit financially from the fraud. The Man of Feeling, despite its status as fiction, appeals fervently to the reader’s emotions, yet by refusing to identify himself with Harley, Mackenzie removes the warranty that would assure readers of his own sincerity in making those emotional appeals. Fielding, recognizing that moral truth in the novel may be seen as contingent on the author’s truthfulness, imagines highly elaborate scenarios of deceit that serve, by contrast, to highlight her own sincerity. She thus comes closest to hinting that novelists may be liable for the accuracy of their depictions, and she appeals to her own motives to warrant that her representations are not fraudulent. Although her approach was one that many later writers would avoid, David Simple helpfully models the correspondence Sentimental Frauds 107 between author and text that can legitimate the text’s emotional demand and that shows why writers in general, and memoirists in particular, may be seen as frauds when the author’s truthfulness is called into question. Frey claimed that he originally wrote his memoir as a work of fiction and was told to try it as a memoir instead (Eakin 2008, 20–21). He could not, of course, have anticipated that Oprah Winfrey would help it find an audience, but when she did, and when The Smoking Gun revealed the truth, the makings of a fraud suit fell into place: we have fiction posturing as fact, an emotional appeal that a community of readers publicly answered, and the financial element of inducement for gain. One of the characteristics of litigation—and particularly of class actions—is that once the template has been created, it is certain to be extended. As noted earlier, while his readers’ sense of emotional betrayal may have provided an impetus for the suits against Frey, the pleadings said nothing about humiliation and embarrass- ment, which, after all, are not cognizable injuries in this context. The pleadings merely recited the elements of fraud: deceit, inducement, reliance, and loss. Those elements, of course, may be present in other instances of fiction posturing as fact, even if the fiction makes no emotional appeal and never finds an audience who collectively treat the book as a touchstone that reveals the truth about themselves. Indeed, Alexandra Lahav (2008) argues that the unity of the plaintiff class may itself be a fictional notion. Has the Frey case opened the door to a vast array of lawsuits against memoirists with poor memories or novels that claim to be “based on fact” but that actually derive entirely from the author’s imagination? These concerns might appear to be justified in light of a case tried about a year after the Frey settlement. In Antidote v. Bloomsbury (2006), the owners of a film production company successfully sued a novelist on the ground that in deciding to purchase an option on the film rights for her book, they had relied on her assertions that the plot was based on the author’s own experiences. Laura Albert published her novel Sarah (2001) under the pseudonym J. T. LeRoy, and created various documents seeming to prove that LeRoy was a real person, a young man with the same background as the teenage hustler in the novel. Antidote paid $45,000 for an option on the film rights, only to learn from an article in New York Magazine that LeRoy was Albert’s inven- tion. Antidote sued, arguing that the project’s commercial potential depended on the autobiographical back story, now revealed as false. At trial, in July 2007, Albert testified that the LeRoy persona was not simply an imaginary character but instead was a kind of sanity-preserving alter ego, a “respirator” created through conversations with her therapist. As a journalist covering the trial explained, “The gist was that she and J. T. LeRoy were forged in a similar fire, so it doesn’t matter if the latter was real or not. And the point wasn’t to deceive anyone, but to tell a story so touching that it brought people together” (Segal 2007, C1). The jury found for Antidote and awarded $116,500 in damages. 108 LAW & SOCIAL INQUIRY

Albert had gone to unusual lengths to create support for her claims about LeRoy. She did not simply state that the novel was “based on a true story”; in negotiations over the film option, she presented a false W-9 form, sent faxes and e-mails purportedly from LeRoy, and even arranged for an acquaintance to impersonate him at a meeting with Antidote (Antidote v. Bloomsbury 2006, 397). Thus, Antidote’s case involved exactly the kind of “false token” that would have justified a conviction for fraud even in the early eighteenth century. Albert’s claims about LeRoy, however, would have been false even without those accessories, and so her readers and Frey’s would seem to be in the same position. Yet Albert’s readers did not sue. If the suit against Frey was propelled by the Oprah-induced testimony that helped to bring the book to national fame, the work achieved by those acts of natural testimony also helps to solve a problem that would typically bar a class action under these circum- stances. The theory of harm in Frey turned on the plaintiffs’ assertion that they would never have bought the book if they had known it was a tissue of fabrications. Allegations of harm stemming from a defective product or an employer’s discriminatory hiring practices are virtually self-validating, once the defect or discrimination has been verified, but it is not similarly obvious that readers who enjoy memoirs would disdain the same story if it were untrue or were rendered as fiction. Because many readers are indifferent to a story’s accuracy, an assertion of injury would typically require individualized proof. In this context, the same production of natural testimony that validates the reader’s status as a member of “Oprah’s Book Club” also serves as legal testimony. The book club members’ sentimental testimony was not delivered in court and was not subject to cross-examination; however, by virtue of expressing and affirming the speakers’ own convictions, this testimony rein- forced the club members’ shared identity and created a shared basis for their claims about why they bought Frey’s book. When the plaintiffs’ proof of harm comes from Winfrey’s endorsement and later declaration of her own sense of betrayal, the mode of proof is easy to envision. Each plaintiff will simply invoke the imprimatur of the book club rather than adducing a preference for being moved by stories based on fact rather than on fiction. Such a preference no longer seems idiosyncratic when it is substantiated by the party’s mem- bership in the book club. The Frey case thus differs in at least two crucial respects from the typical case of memoirs or novels that are promoted on the basis of biographical falsehoods. First, the representative plaintiffs would normally be unable to show that their harms are typical of those suffered by all class members, because there is no way to show by proxy that any given reader is moved by true stories but not by fiction. Without generalizable proof of harm, the plaintiff class could not be certified, and individual suits would be impractical because of the negligible damages available to any one plaintiff. Second, in the suits against both Frey and Albert, the plaintiffs also alleged that the publishers were aware of the fraud. In many cases involving literary Sentimental Frauds 109 falsehoods, however, the publisher is no better informed than the readers and at best might be charged with negligently failing to verify the author’s claims, which is not a basis of liability (Winter v. Putnam’s 1991). In consequence, a class action would be worthless to the plaintiffs except in the unusual case of a very wealthy author. Even in suits against memoirists, these two considerations raise serious hurdles; suits against novelists would be even harder to maintain. The Antidote case, then, does not signal an extension of Frey, but rather helps to indicate the limits of liability for literary fraud. As the sentimental novel shows, writers have long been concerned about the legitimacy of making emotional demands on their readers and have adopted various means of defending themselves against their readers’ suspicions. The culture of sensibility that Fielding and Mackenzie nurtured also represents an early forum for the kind of sentimental testimony heard on contemporary talk shows, which provoke the same concerns that these writers faced. Other developing venues for the public expression of sentiment, particularly on the Internet, may be capable of recreating the same dynamic. Responses to blog posts or videos, for example, could potentially acquire the force of testimony even more readily than the vicarious response of a television viewer. Whether the person who induced those responses would be a rewarding target to pursue is a different question. A likelier candidate may be found among the evan- gelical preachers who apply the ministry’s coffers to their own use, and who appear, on inspection, to have been motivated by financial gain from the outset (Teague v. Baker 1994). Doubtless our suspicions about sentimental testimony will persist as long as we are presented with works that buttonhole us after the manner of Fielding and Mackenzie. Only in the rare case, however, will testimony elicited in the realm of popular culture be capable of taking on legal force.

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