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Full text of ""Obscene" literature and constitutional law; a forensic defense of freedom of the press"

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"OBSCENE" LITERATURE 



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CONSTITUTIONAL LAW 



A FORENSIC DEFENSE OF FREEDOM OF THE PRESS 



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THEODORE SCHROEDER 

LICAL COUNBBLLOK TO THI MBDICO-LBCAL SOCIXTV OP NEW VORK 
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" He thai u/auld make bis awn liberty secure, must 
guard even his enemy from appression, far if he eio- 
latBS this duty he establishes a precedent that v/ill 
reach to himself." 

— Thomas Paine. 

" Those powers af the peopie which are reserifed 
as a check upon the soi/ereign can be effectual only so 
far as they are brought into action by private individ- 
uals. Sometimes a citizen by the farce and perseve- 
rance of his complaints, opens the eyes of a nation." 

-~Db Laime. 

"I will be harsh as truth and as uncompi nmismg as 
justice. I am in earnest ; 1 will not equivocate ; I will 
not excuse; I will not retreat a single inch; and 1 
will be heard." 

Ganison . 



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CONTENTS 

PAOB 

Prolegomena 7 

Chapter I. A Statement of the Contentions 1 1 

Chap. II. On the Adverse Emotional Predisposition 34 
Chap. III. No "Obscene" Literature at Common 

Law 33 

Chap. I\'. The Etiolof^y and Development of Our 

Censorship of Sex -Literature 42 

Cbap. \'. The Reasons Undertyin{( Our Consti- 

tutional Ouarantee of a Free Press, 
Applied to Sex- Discussion . 74 

Chap. VI. Obscenity, Prudery, and Morals loi 

Chap, VII. On the Implied Power to Exclude " Ob- 
scene" Ideas^fn>m the Mails . . 139 

Chap. VIII. CoucerninK the Meaning of " Freedom of 

the Press" 142 

Chap. IX. Tho Judicial I>e.structinn of Freedom of 

the Press 154 

Cbap. X. Judicial Dogmatism on " Freedom of the 

Press" 163 

Chap. XI. The Historical Interpretation of " Free- 

dom of Speech and of the Press" . 206 

Chap. XII. Science tvr.Tvj Judicial Dictum: A State- 
ment of Novel Contentions and a 
Plea for Opeii-Mindedness 340 

Chap. XIII. Ethnographic Study of Modesty and 

Obscenity 258 

Chap. XIV. Psychologic Stud.\ of Modesty and 

Obscenity 271 

Chap, XV. rnccrtaiuty of the 'Moral "Test of 

Obscenity 279 

Chap. XVI. Varieties of Official Modesty 30t 

Ch»p, XVII, Varieties of Criteria of Guilt - 3»6 

3 



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CONTENTS 

Chap. XVIII. "Due Process of Law" in Relation to 
Statutory Uncertainty and Constnict- 
ive Offenses. Part I. _Tlte Seieniific 
Asfiectef Law .... 

Chap.; XtX. " Dne Process of Law" in Relation to 
Statutory Uncertainty and Construct- 
ive Offenses. Part II. Generai Con- 
sideralioHS Coneermng Uiutriamty and 
Dtie Pr^ess of Law .... 

Chap. XX. " Due Process of Law " in Relation to 
Statutory Uncertainty and Construct- 
ive Offenses. Part III. HUtorUal 
/nUrpretalum of "Law" in ReloHon 
to SMutofy Ceriainfy 

Chap. XXI. "Due Process of Law" in Relation to 
Statutory Uncertainty and Constract- 
ive 6ffeuses. Part IV. Ceriainfy Re- 
quirtd by Modem AutMotities 

Chap. XXII. "Dne Process of Law" in Relation to 
Sutatory Uncertainty and Construct- 
ive Offenses. Part V. TV Syniheiis 
and lie AppHcafUm 

Chap. XXIII. Ex Post Facia Criteria of Guilt are 
Unconstitutional .... 



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365 



384 



402 



416 



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ERRATA. 

Page 31 : Westermarck, Finnish scholar, not Swedish. 

P. 71 : Foot-note 30 probably refers to whole article, as no refer- 
ence figure appears in the text. 

P. 308 : Foot-note corresponding to Reference 91 (Ohio Decameroa 
case, U. S. Court) is missing. 

P. 318: Foot-note, iVoUsioneera/i, not "Woolstonecrafl." 

P. 320: Foot-note 113 should refer to Prof. W. I. Thomas, not to 
' ' Fables for the Female Sex. ' ' 

P. 391 : Foot-note corresponding to Reference 63 is missing. 

P. 401 : Foot-note 86, quoted from memory, is State vs. Holland, 
37 Mont, 393." Also, a decision from Oregon or Washington holding 
invalid an anti-cigarette ordinance for want of a definition of what con- 
stitutes a cigarette. 

P. 401 : The foot-note here, Mcjunkins vs. State, 10 Ind., 145 
(A. D. 185S,) should go to page 406 as foot-note 87. 

P. 406 : Fool-note now numbered 87 should be numbered 88, Cook 
». State, 59 N. E. Ind. 489-90 (1901). 

P. 407 : Fool-note 89 should be. " Requoted from Heywood's 
Defense, p. 39." 

P. 407 : Foot-note 90 should be, Ex parte Andrew Jackson, 45 Ark. 
164 (1885). 

P. 407 : Foot-note 91 should be, U. S, vs. Commerford, 25 Fed. 
Rep. 904, West. Dist. of Texas. 

P. 407 : Foot-note now numbered 91 is astray, there being no 
corresponding reference in text. 

There are qatte a number of breaks in the continuity of several 
setJes of the foot-notes and the corresponding reference figures in the 
text, due to the transference of parts of the text to other places in the 
book after the citations and the foot-notes were linotyped. 



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PROLEGOMENA 

I understand a preface to be the place used by aiilhor* lor* 
explaining the reason of the exigence and ihe diaractcr of 
their perforrnance, and sometimes to aid the reader to some 
advance appreciation of the author's purpose and viewpoint. 
To these ends I will devote this introduction. 

My numerous smug friends, who pride themselves on their 
"eminent respectability," often reproach me E«itly for my ex- 
tensive advociicy of freedom t>f speech and press, and of 
uneeasored mails and express. To defend the riglit of alt 
htimsns to an opponunity to know all there is to know, even 
about the subject of sex. to the polluted minds of my "pure" 
friends, is to defend an "undeanness " — not at all unclean so 
far as it relates to their own bodies, but "unclean" to talk and 
read about — not "unclean" as to any acts or facts in their own 
lives, but "unclean" only to admit a consciousness of those 
facts. I reluctantly confess (hat all such hypocritical moral 
cant, or diseased sex- sensitiveness, arouses in me the most 
profound contempt of which my phlegmatic nature is capable. 
EVrbaps that is one reason why I was impelled to do this un- 
compensated and unpopular work and sometimes to do it in a 
manner that is devoid of tact, according to the judgment of 
those who dare not countenance robust frankness. 

They say to me, "What do you care? You know all you 
wish to upon the tabooed subject ; what do you care, even 
though the general public Is kept in ignorance, and a few 
[thousand] gii insane as the result? That doesn't harm you 
any, and may be the public is benefited, in that, together with 
Mrrious and searching sex-fliscussion. much real smut is also 
suppressed." Such has always been the specious plea of the 
shortsighted and the cowardly, during the whole period of the 
agitation for a secular state and freedom of speech. 

The answers to such specious "arguments" have been often 
made in the contests of past centuries, and I can do no better 
llian to quote the answer of Dr. Priestly: "A tax of a penny is 
a trifle, but a power imposing that tax is never considered as a 



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OISCBNK LlTMLATUtK AND COKSTITUTIONAI. LAW. 



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trifle, because tt may impiy absolute servitude in alt who sub- 
mit to it. In like manner the enjoining; of the postnrc of kneel- 
ing at the Lord's supper is not a thing worth disputing aboul 
io itself, but the authority of enjoining it is; because it is in 
fact a power of making the Christian religion as burdensome 
as the Jewish, and a power that hath actually been carried to 
that length in the church of Rome. • • • ()ur ancestors. 
the old Puritans, had the same merit in opposing the imposition 
of tile surplice that Hampden had in opposing the levying of 
ship money. In neither case was it the thitig itself they ob- 
jected to, so much as the authority that enjoined it and the 
dangtr of the decedent. And ii appears to us that the man 
who is a.s tenaciou:* of his religious as he is of his civil liberty 
will oppose thcni both with equal firmness. • • • The 
man of a strong and enlarged mind will always oppose ihes? 
thingit when only in the beginning, when only the resistance 
can have any effect : but the weak and the timid, and short- 
sighted, will attempt nothing till the chains are riveted and re- 
sistance is too late, in iHvil matters the fonner will take his 
stand at the levying of the first penny by improper authority. 
and in matters of religion, at the first, thoi^h the moitt triflii^. 
ceremony that is without reason made necessary, whereas 
the latter will wait till the load, in both cases, is become too 
heavy to be either supported or thrown off," 

In itself il may not be of great importance that by uncon- 
stitutional statutes, much disagreeable lilerar}- and inartistic 
matter about sex is suppreised, nor even that the best scien- 
tific literature about sex is withheld from the laity, and to some 
extent even from physicians: it may not even be of importance 
that, as a result of this general compulsory ignorance about 
sex, thousand'^ of people are in aNylun)> wlio would not be 
there but for our legalized prudery, and compulsory ignorance, 
but it is of infinite importance to destroy a precedent which im- 
plies the admission of a power to wipe out any literature upon 
any subject, which,- through popular hysteria or party pasiiion. 
may be declared "against the public welfare," 

So long as the present laws against "obscene" literature 
Stand unchallenged as to their constitutionality, we admit thai 
here, as in Russia, liberty of the press is liberty only by per- 
mission, not liberty as a matter of right. With the "obscenity" 
laws av a precedent, otir censnrstiip has grown until now land 
I say this deliberately and later may furnish the proof of it). 




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PKOLECOMCNA. 

bberty ot lh« press in the L'nilcd Slates is more perniciously 
and more extensively curtailed than it was in England at the 
ttme of our revolution. That sounds strange to the American 
dullards who on the Fourth of July talk about libcrt>- without 
IcDOwing its meaning, but a comparison of the laws then and 
now will justify my conclusion. 

Most of the following essays have already appeared in va- 
riou» popular, radical, medical and le^l journals. My in- 
tention was primarily to address an argument to the members 
of the bar generally and to others interested. I have not 
thought it best to change any of the substance of my argu- 
ment or the manner of slating it on account of the fact that it 
may be prcMinted to a judicial tribunal. I hope I do not over- 
estimate the intellectual hospitality of our appellate courts, by 
not having taken into account those little tricks of intellectual 
expediency which lawyers often feel compelled to resort to 
when addressing judges of smaller mental caliber I have 
bluntly stated what to me seemed to be the tnith and 1 wish 
to rcinind the judges who may do me the honor to read this, 
that no litigant whose interests may be involved can be justly 
held accountable for my indiscretions or want of tact. 1 am 
almost glad thai I did not have lime tl«^rotighK to revise 
these essays after their publication in the magazines, lest I 
should have been tempted to withdraw the compliment to our 
courts, which is implied in my robust frankness. 

At the veiy outset. I feel an urgent necessity for express- 
ing some misgivings which I entertain, as to the arguments 
that follow, and thus incidentally ] express my apologies there- 
for if SHch arc deemed tu be due from mt In inatiy places. 
h secRiR to me that 1 have unnecessarily elaborated what per- 
haps is so elementary that 1 should have assumed every lawyer's 
famiharit)' with it. If 1 fait to make this assumption, it is 
because I remember that thousands of lawyers, in as many 
cases, have had opportunity, and courts have had the duty, to 
make a practical application of these fundamental principles, 
without giving a hint that they knew of their existence. Many 
of these cases have gone to appellate courts, including the 
Supreme Court of the United States., 

Am I in error in thinking these principles elementary? Or 
is it error to assume that innumerable distinguished lawyers 
xnd caurt> are familiar with dviTiciiuiy [irinciplcs? Tliesc are 
the i)uesl:ons which perplex. It seems to me that others have 



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OBSCENE UTEXATUKE AND CONSTITUTIONAL LAW. 

anconscioaslr taken too much for granted ; shall I then deliber- 
ately repeat their error? In this perplexing situation, I must 
resolve all doubts against myself. In view of all the facts relat- 
ing to innumerable prosecutions where the principles herein- 
to4>e contended for should have been applied, I feel myself 
unqualified to determine what is safe to take for granted. If 
I am wrong in that which I will claim, the courts will correct 
me, when this argument reaches them, as it ultimately will. If 
I am right. I dare not take for granted that others know it as 
axiomatic, for I must heed the warning given me by the re- 
corded experience of others. 

In closing, I must again ask that judges to whom this argu- 
ment may be presented will not hold either the lawyers who 
may refer to it or their clients responsible for my indiscre- 
tions, if I am deemed guilty of such. This argument has been 
prepared, as also all possible revised editions of it will be, with- 
out reference to any particular case, or any particular court. 
Had a thorou^ revision been possiUe before book-puWica- 
don, I should have eliminated many repetitions of thought, 
which seemed necessary in preparing the separate magazine 
articles. 

New York City. THEODORE SCHROEDER. 



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CHAPTER I. 

A STATEMENT OF THE CONTENTIONS 

Revised irom The Albany Law Journal, Nov., 1907. 

I am now making a statement of the questions to be here- 
after discussed. I will briefly outline them, giving refer- 
ences to a few preliminary discussions in professional peri- 
odicals and pamphlets. These contentions, when adequately 
presented, I believe must result in the judicial annulment of all 
present State and Federal laws against "obscene" literature. 
That such laws have been enforced vigorously for nearly half 
a century without having their constitutionality seriously ques- 
tioned, is as unusual as are the factors to which the Constitu- 
tion must be applied in order to reach the result herein con- 
tended for. Many of the problems here involved are difficult 
of solution to those who are not trained specialists in psychol- 
ogy and especially in sexual psychology. Later on. in the com- 
pleted argument, when we come to study the nature and psy- 
chology of modesty, we will find the explanation of this long 
acquiescence to be of the very essence of our emotional life, 
which, coupled with the general absence of psycho-sexual intelli- 
gence, have so befogged the critical capacity of the members of 
the profession as even to preclude a search for the discovery of 
such questions as I am about to raise. My contention is that 
the postal and other laws against "obscene and indecent" liter- 
ature are unconstitutional for the following reasons : 

I. Because not within any expressed or implied power of 
the Congress to enact. 

Syllabus of the Argument : The power to create a postal 
system implies the power to pass all laws "necessary and 
proper" to the end of executing the power to establish post 
offices and post roads, but it does not authorize Congress, 
under the pretext of creating and maintaining post offices, to 
make the postal system a means to the accomplishment of 
ends not entrusted to the care of Congress. The very creation 
of a postal system necessarily involves a determination of the 

II 



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(IIISCE.NE MTKRATURt: AMI I UX.SI ITL'TIONAL LAW. 

gross physical characteristics of that which is to be carried or 
excluded and therefore implies the power to (Jetermine such 
qualities. A like implication cannot be made in favor of a 
power to determine what are mailable ideas, because a differ- 
ential test of mail matter, based upon the opinions transmitted 
through the mails, or the psychological tendencies of such 
opinions upon the addressee of the mail.';, or a differential test 
based upon an idea which is not actually transmitted, but is 
suggested by one that is transmitte<l. hears no conceivable 
relation to the establishment or maintenance of post offices or 
post roads for the tran-iimission of physical matter only. 

It may be admitted that the power granted implies the power 
to preclude the use of the mails as an essential element in the 
commission of a crime othcrwi.se committable. and over which 
the Congress has jurisdiction (such as fraud and gambling), 
within the geographical limits of its power. But it is claimed 
that the power of Congress is limited to the use of means which 
are a direct mode of executing the power to establish post 
offices and post roads, or some other power expressly granted, 
and it cannot, under the pretense of rcgulatiny the mails, ac- 
complish objects which the Ctinstitution does nol commit to 
the care of Congress. Such an unconstitutional object is the 
effort of Congress, under the pretext of regulating the mails, 
to try to use the mails as a means to control the psycho-sexual 
condition of postal patrons,' 

Neither can the exercise of llic present (kiwct be justified as 
an incident to the power lo refjnlate interstate cciiumcrce. be- 
cause the censorship is not limited thereto. It includes Intra- 
state transmission as well as that of jirivatc letters, or gifts, 
which are not at all matters of commerce either Inter-state or 
otherwise, and .«o cannot be upheld as a regulation of inter- 
state commerce.* 

For these reasons the power exercised is not vested in 
the Congress at all. 

2. The postal laws against "obscene" literature are void 
under the constitutional prohibition against the abridgment of 
freedom of speech and of the press. Likewise all similar State 
legislation is void under State Constitutions. 

Syllabus of the argiimeni: Tliis constitutional guarnutec of 

'"On TBI Ixruin Pawn to hclddi 'oiacm' iniu noH thi uaiu." 
Cnural /.m Jeunal. V. n. p. ITT. (Sept. 8, ISOT.) 

■Howard vi. III. Crnt. R. R.. IB Sup. Ct. Rep. 14). 

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STATBMENT OP THE CONTENTIONS. 

freedom of itw pre«s i% violated whenever there is an artificiat 
legislative desimclion or abridgment of the Rreatcst liberty 
consistent with an equality of liberty, in the use of (he printed 
pagK u a meanK of disseminating ideas of conflicting tendency. 
The use of printini; is but an extended form of speech. Free- 
dom of speech and press is abridged whenever natural opportu- 
nity is in any respect denied, or its exerci-te punished, merely 
as such; that is. in the absence of actual injury, or when by 
tcgislative enactment there is created an artificial inequality 
of opportunity, by a discrimination according to I he subject- 
matter discussed, or a discrimination as between different ten- 
ilencies in the itifTerent treatment of the same subjeci-malter. or 
according to difFerenccf of literary style in expressing the same 
thought. .Ml this is now accomplished under obscenity laws as 
at prcjetit a<lminislered, and therefore our laws upon the subject 
are unconstitutional. 

This contention involves the establishment of a new defini- 
tion of "freedom of the press." based upon the viewpoint that 
the framers of the Constitution mtcndcil hv ihai clause to en- 
large the intellectual liberty of the citizen beyond what it had 
theretofore been under the English system. Some State courts 
have erroneously assumed that the only purpose was to ex- 
change a censorshif] Ijefore publication for criminal jiunishment 
after publication, without tlie least enlargement of the right to 
publish with impunity so long as no one is injured. The con- 
tention will lie iliat the C^fn^lilllti^>n changed liberty of (he press 
by permission, to Liberty as s right, because thus only can all 
citixens be protected in their proper opportunity to hear and 
read all that others have to offer, and without which freedom 
unrcMriaed there is no intellectual liberty at all as a matter 
of right.* 

3. The "obscenity" laws violate the constitutional guaran- 
tee of "due process of law." 

Syllabus of (he argument : The statute furnishes no stand- 
ard or (e>t by which to <ii life rent iate ihc luiok thai is obscene 
from that which is not. because of which fact (he definition of 
the crime is uncertain, rurthermore. il i* a demonstrable fact 
of science that olwceniiy and indecency are not nense- perceived 

■-THE JUDICIAL DESTRUCTION OK rREEDOM OK THE PRESS." ia 

CMvrwBnl, lot Drc. IVDH^ Albant Lmr /uaraul, Nov.. IDOIL 

-THE SCIKNTIKIC ASPFCT OF 'DUE PROCESS OK LAW.'" in Am*r^ 

c^ I.** Rnxtip. ioi Junr. IWX- 

-UBERTY OF CONStlENCE. SPEECH AND PRESS." In Tkr Libtttl 

IEhww, lot AdioH init Srnl.. I«M. 

-KREEOOM or THE PRESS AND -OBSCENE' UTERATUBE." N. T.. 

IWT. 

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qualities of a book, but are solely and exclusively a condition 
or effect in the reading mind. This is evidenced in the result 
that it has been, and always will be. iinpo<isible to swie a defini- 
tion or test of obscenity in terms of the <)ualittcs of a book, or 
tuch a one thai, solely by applying the test to any given book, 
accuracy and uniformity of result must follow, no matter who 
applies the tc»l, nor such that when there is no dispute about 
any physical fact of present or past existence, any man may 
know in advance of a trial and a verdict, solely from reading 
the statute, what the verdict must be as to (he obscenity, and 
consequent criminality, of every given book. Neither the 
statute, nor the judicially created tests of obscenity or in- 
decency, furnish any certain advance information as to what 
most be the verdict of a jur)' upon the speculative problem of 
the psycholt^cal effect of a given book upon an undescribcd 
hypothetical reader. Their verdict is. therefore, not accorditig 
to the letter of any general law, but according to their whim, 
caprice and prejudices, or varying personal experiences and 
different degrees of sexual hypencstheticism and varying kinds 
and quality of intelligence upon the subject of sexual 
psychology, or moral idiosyncracies. In consequence, every 
such verdict is according to a test of obscenity personal to 
the court or jury in such a case, and binding upon rto other 
court or jury and not according to any general law or uniform 
rule. One of the reasons underlying this uncertainty is the (act 
that "obscenity" is not a quality inherent in a book or picture, 
but wholly and exclusively a contribution of the contemplating 
mind, and hence cannot be defined in terms of the qualities of 
a book or picture, but is read into them.* 

(a) The first result of this uncertainty is tliat the statute of 
Congress herein involved creates no certain or general rule of 
conduct for the g;uidance of citizens, and does not enable them 
to know if their proposed act is in violation of the statute, and 
therefore every indictment and conviction under said statute is 
without due process of law. Unless the statute so defines the 
crime that by the a()pfication of its letter alone every person 
of ordinary intelligence must always draw the same line of 

-WHAT IS CRIMINALLY -OBSCENF.' " Pfoofc^mo XV, Innrmiional 
Ucdkal roncirti. I.libiia. Partii«al. April. t«M: Albamr Ltm !n-r»ot. (oi Julr. 
I*M 

■■LEGAL OBSfH.SITY AN1» SKXUAI. I^VCHOLOOY." >n TW Uidtn- 
L*t*t lavwMl. rnr SrM , lun?, icd TKr AUniii Had A'H'*4e(ul. (or AUB.. IVU. 

-VVHIETIES Ol- Ot^^PK'IAI. MOHtSTV," in (b* Amtrium /m'iwI »t 
rau<>«: ioi \Hc.. 19117; .4Wm"v Law IttimaL .\iii.. l»"f 

"FIIEfitlOM OF THE TRESS ANI> X>B8CE»i;* l-ITEHATURE." H. T.. 




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SrATUilKST OF Tin; CIINTKSTIOSS. 

dcmarkatton between the books or pictures which are pro- 
hibited ami lhcH<« winch are not, then \hv statute is void for 
uncertainty umlcr the old maxim. "Where the law is uncertain 
there is no law." and consequently there is no "due process of 
law." 

(6) Furthermore: "The doctrine l^ fundamental in Eng- 
lish and American law that there can be no constructive 
offenses." These are of four kinds. First, where the act to 
be punished is by judicial construction brouf^ht within a statute 
whose plain and literal meaning docs not cover it. In this case 
the statutory criteria of guilt nrc assumed to be certain as to 
meaning. The second class of constructive offenses arises 
where the statutory criteria of guilt are ambiguous, and the 
courts presume, by judicial l^islation. to penalize an act 
which is ixM clearly within every possible, plain and certain 
meaning of the statute. Here the courts make a legislative 
choice as to which meaning is to be enforced. The third class 
of constructive offenses arises from an uncerlainty (as diitin- 
{uished from an ambiguity) in the statutory criteria of guilt. 
Here, there is a total absence of criteria of guilt, and the»e 
become wholly a mailer of judicial creation (as distinguished 
from selection when the statute is only ambiguous). Because 
of the uncertainty — that is. of a total absence of definite statu- 
tory criteria of Ruih — under all of the "obscenity" laws, noth- 
ing is ever unavoidably ceruin within the letter of the statute. 
It is nece!isar>- in order to secure conviction that judicial, so- 
called, construction, or, more accurately speaking, judicial legis- 
lation, be enacted whicli irraUs /he criteria of guilt not fur- 
nished by the statute, from which ii follows thai all guilt here- 
under is but constructive guilt, and the crime only a construc- 
tive, that if, a judicially creatc<l crime, and not due process of 
biw. 

The fourth class of constructive crimes iire those which do 
come within the actual and literal definition of the criminal 
suiute, bul where that predicates crime upon conduct which is 
only a constructive, an<l not a real and actually achieved 
material injury, to any living being, nor conditioned upon any 
imminent danger thereof, the existence of which is determin- 
able by any known law of the physical universe. In such a 
case, the reality and materiality of the injury, which is an in- 
disperuable foundation of all criminal statutes, is entirely ab- 
sent, except as a matter of legal fiction, and not as a material 

»5 



Disliiency 



.oogic 



USSCKNE LITERATURE AND CUNSTITUTIOSAL LAW. 



actualiiy described in the tetter of the liw. The same proposi- 
tion may be thus stated: One is being punished for a con- 
•ilmctivc crime whenever the alleged crime consists only in 
(he dissemination of ideas, if under ihe statute the penalty 
attaches upon conditions other than that the ideas have actually 
resulted in material injury to some one. Every psychologic 
crime, so long as it remains a mere psychological offen'&e whose 
injury is constructive only, can never become anything except 
a constructive crime Such purely conflructivc wrong and con- 
structive crime cannot be penalized in any country whose con- 
slitulion vrtLs ordained to promote liberty, and therefore such a 
statute cannot constitute "due process of law.""* 

4. The statute in practical operation violates the constitu- 
tional guarantee against I'.r post facto laws. 

Syllabus of the argument : The second result of this uncer- 
tainty of the statute is that every indictment and conviction 
under said statute is always according to an ex post faelo law or 
standard of judgment, specially created by the court or jury for 
each particular case. The Congress of the United States has no 
power to authorize a jury to determine guilt or crime according 
to varying personal standards, such as must control the opinion 
of a jury on the psychological tendency of a book upon an unde- 
scribcd hypothetical reader, and which standard, because it is 
pcntoniil to Ihe juror, in the nature of things cannot be known at 
Ihe time the alleged act was committed, nor before the rendition 
of a verdict thereon. 

A conviction and punishment under such circumstances is 
always by virtue of ex post facto legislation on the part of the 
court or jury, and is none the less unconstitutional because the 
attempted delegation of power to enact it was made before the 
conduct to be punished. AD criteria of guilt must be found 
in a prior statute.* 

in Tb 

In n* 



•■■Tnt: SCIENTIFIC ASrt-.fT OF -DUE PROCK8S OF LAW," ' 
Amrritan (.iw Rnwa, fsr Juim, 1*08, 

••STATL-TORT UNCKHTAlSTY AND 'DOE PROCESS OP LAW.' 
Cmlial Law Jaumal, tor Jui. 1. lOOK. 

■THE lUSTORICAL INTtKI'RRTATION OF -LAW,*" .n Tkf At1i«ny Ln, 
^MDUl, f« April, l>OII 

-■DUB PSOCESS or LAW.- IN RELATION TO STATUTORY UNCER- 
TAINTV AND COMSTRUCnVE OFFENSES." K. Y.. IMS. 

"CONSTBUCTIVK OKKE.NSES DKI'INEn." m Thr Crmtft Ltm Inrnal. 
Dm. IK, ItlDK. 

•'■THE SrlENTIKlC ASPtCT OF 'DUE PROCESS OF MW; " ii> TW 
Amtnf^n Lam Rnnn, Inr }^nt, IftoA, 

"STATUTORY UNCERTAINTY AND "DUE PROCESS OF LAW,*" in 
Tilt Cmual r.sw /oimal. for lin. ■. 1VD1I. 

-THE HISTORICAL INTERPRETATION OP "LAW.'" Id r»# Albtif, Urn 
Jtarw-l. I'll Apiil, IVQ*. 

"■nUE PROCESS OF LAW IN REI-ATION TO STATITTOIIY UHCRt- 
TAINTV AND C-ONSTRUmVE OFFENSES,- N V Kmn. 



16 



Ditr'isen cy ' 



8TATKME.VT OF THB COWTKNTIONS. 

5. The Statute in its practical operation vioUtes the seventh 
vDendment to (lie Constitution in this: By reason of the want 
of definition of the crime, by a statiitnry !>t.i(ement of the 
criteria of guilt, (he courts submit to the jury a determination 
of the question of law as to what shall constitute "obscenity." 
Congress has no power to make juries the judge of the law, 
especially not in cases wherein they were not authorized to be 
such judges under the common law of England. No such acts 
as are now punished under "obscene" literature were ever 
toduded under the common law crime of "obscene libel."' 

Purthennore, Fox'it libel act, which made English juries 
in libel cases the judges of the law, as well as of the facts, did 
not pass the English Parliament until 1792. 

ARE THE l-ORECOING OPEN QUF^TIONS? 

Is the constitutionality of our moral censorship of litcrattire 
by the post office department still an open question? An an- 
swer to this problem can be satisfactorily reached only by an- 
alyzing all the judicial mention of the subject, in the light of 
the foregoing assignable reasons for asserting the unconsti- 
tutionality of these laws, and in the light of the following words 
from Chief Justice Marshau.: 

"It is a maxim not to be disregarded that general expres- 
sions in every opinion are to be taken in connection with the 
case in which thcw expressions are used. If they go beyond 
the caK they may be respected, but ought not to control the 
judgment in a subsequent suit when the very point is presented 
(or decision. The question actually before the court is investi- 
gated with care and considered in its full extent. Other prin- 
ciplcs which may serve to illu.<>trate it are considered in their 
relation to the case decided, but their possible bearing in all 
other caxes is seldom investigated."* 

The first case to make reference to the postal censorship 
of the mails is Ex Parte Jackson, 96 U. S. 727. 

This was an application (or a writ of habeas corpus and 
certiorari, after conviction, for mailing lottery matter. The 
only question raised in the argument for the petitioner is 
summed up in these words: 

"So long as the duty of carrying the mails is imposed upon 
Congress, a letter or packet tvhich wai conffssediy mailabU 
mailer at the time of the adoption of ike Constitution cannot 

•■VBSrENE LITERATURE UNDER TRE COUMON-LAW,~ Albmy ttn 
ttmntl. ittj. 1«0T 

•Cohmi *. Vir^nl4. t Whral. >M- Sn. aUo. Can Enhann Buik T. Pw- 

bodr. >ii App. Di>. tit. M N. Y. Sup. n. 

>7 



DnjliIt-'UUy' 



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OUSCENE UTERATUBE AND CONSTITimONAL LAW. 





be excluded from them, provided ihe postage be paid and other 
regulations be observed. Whatever else has been declared to be 
mailable matter " • • all of which were unknown to the 
postal $>-si«n when dte convention concluded its labor in 
1787, may in the discretion of Congress be abolished." 

No other question was raised and no argument based upon 
the construction of the expressed or implied power of Congress 
wa5 presented. To enforce the above argimient and reduce 
the contrary position to an absurdity, as it was believed, coun- 
sel for the convict said: "If Congress can exclude from the 
mail a letter concerning lotteries which have been authorized by 
State legislation, and refuse to carry it by reason of their as- 
serted injurious tendency, it may refuse to carry any other 
business kttcr." No arguments of any nature as to Ihe 
correctness of such suggestion of power, or the limitations, 
if any, by which the Constitution docs or does not hedge 
about this alleged arbitrary power, were even mentioned, much 
less discussed. Tlie Atlomey-Gencral rested the contrary view 
solely upon the dogmatic and very doubtful assertion that "if 
there is a right to exclude any matter from the mails, the 
extent of its exercise is one of legislative discretion." 

The court did not have before it any question except as to 
lotteries, and then only in so far as it related to the power 
of Congress to declare non-mailable what custom Mad sanc- 
tioned to be mailable at Ihe time of the adoption of the Consti- 
tution. The court indulged in some dictum based upon the 
loose talk of counsel concerning side issues. In that dictum, 
hon-ever, the court distinctly negatives tlie idea suggested by 
the Untied States attorney, that there are no limits to the 
power of regulating the mails, and some such limitations are 
pointed out by the decision without negativing the existence 
of other limitations. 

The court among other things said: "The validity of legis- 
lation prescribing what should be carried and its weight and 
form and the charges to which it should be subjected has 
never been questioned. What shall be mailable has varied 
at different times, changing with the facility of transportation 
over the post roads. At one time only letters, newspapers, 
magazines, pamphlets and other printed matter, not exceeding 
eight ounces in weight were carried; afterwards books were 
added to the list, and now small packages of merchandise, oot 



18 



Ll'jiiii-iltly 




OOJJIC 



STATEMBKT OF THE CONTESIIONS. 

exceeding a prescribed weight, as well as books and printed 
matter of all kinds, arc transported in the mail. 

"The power pouesscd by Congress embraces the regulation 
of the entire postal system of the country. The right to desig- 
nate what shall be carried necessarily involves the fight to 
determine what shall be excluded. The dUficully attending the 
subject arises not from the tvani of regulalions as to what 
shall constitute mail matter, but from the necessity of enforc- 
ing them consistently zt-ith rights reserved to the people, of 
far greater importance than the transportation of mail." Then 
some limitations of the regulative power arc pointed ouL With- 
out claiming to enumerate them all. the court continues in part : 

"The constitutional guaranty of the right of the people 
to be secure in their papers against unreasonable searches and 
seizures cxlemis to their papers thus closed against inspection, 
wherever they may be. Whilst in the mail they can be opened 
and examined under like warrant issued upon similar oath or 
affirmation as is required when papers are subjected to search 
in one's own household. All regulations adopted as to mail 
matter of this kind must be in subordination to the great prin- 
ciple embodied in the fourth amendment to the Constitution, 

"Nor can any reffulation be enforced against the transpor- 
btion of printed matter in the mail, which is open to examina- 
tion, so as to interfere in any manner tvith the freedom of tht 
press. \What might constitute such interference is not indi- 
cated.] Liberty of circulating is as essential to that freedom 
as liberty of publishing: indeed, without the circulation the 
publishing would be of little value. If, therefore, printed 
matter be excluded from the mails, its transportation in any 
other way cannot be forbidden by Congress." [Since then, 
and in spite of this dictum, Congress has attempted to forbid 
other means of transmission, in addition to post office suppres- 
sion.) 

"In excluding various articles from the mail, the object 
of Congress lias not been to interfere with the freedom of the 
press, or witli any other rights of the people, but to refuse its 
facilities for the distribution of matters deemed injurious to 
the public morals. 

"All that Congress meant by that act was that the mail 
would not be used to transport such corrupting publications 
and articles, and that any one who attempted to use it for tbat 
purpose should be punished. "• 

•Ei ptnt Jtkma. M U. 3. ni to riL 

19 » 



Dic'iieccy 



iooglc 



OESCBNS LimLATUM AHD COKSTITUTIOHaL LAW. 

Several propositions are made clear from the reading of this 
dictum. The first is, there are some timiutions upon the congres- 
sionaJ power to regulate the mails. Second, that the court 
was not called upon, nor attempted, to enumerate all of 
those limitations. Third, that what was said about freedom of 
press and postal regulation.^ excluding obscene literature wait 
not at all necessary to a decision of the question before the 
court, nor was this dictum based upon any argument attempting 
to construe the meaning of "freedom of the press." Fourth, 
the court admitted that Congress could not make a regulation 
such as would abridge the freedom of the press, but (he decision 
does not attempt to point out the kind of postal regulation which 
would constitute such an abridgment, nor the lest by which 
such regulation may be judged an abridgment of the freedom 
of the press. 

Applying the test of Cohens v. Vii^nia," it follows that 
nothing in this case is conclusive upon any feature of the con- 
stitutionality of postal laws against "obscene" literature. 

The next two cases in which this subject is mentioned are 
in re Dupre," and in re Rapier.'* These two cases were ar- 
gued together and decided together, and in both the precise 
matter under discussion, as in the former case, was lotteries 
and the maiL 

Counsel for Dupre says : "We are not at this moment ob- 
jecting to the statute as invalid because aimed to accomplish an 
object beyond the power of the Congress, or because forbidden 
by some express prohibition of the Constitution," but because 
the means employed were not legitimate to the end of main- 
taining the mail service. However, counsel for the accused 
did not meet the real issue, which may be thus stated : Congress 
has power to prohibit gambling on premises over which it has 
jurisdiction, as in post offices owned by tlie government, and 
in the Territories and District of Columbia, and, as an incident 
to Uiat power, might prohibit gambling through the mails. It 
was argued that absence of right to exclude lottery advertise' 
0Mnts did Hot involve absence of right to exclude obscenity, 
because the latter was "undoubtedly" mala tn se and the 
former only mala prohibita. Again the attorney says: "Our 
argument in no manner involves the consequence that existing 
legislation of Congress, excluding obscene books and pictures 

••■ WbM. IM. 

»itt u. s. iia 
•nM u. s. lis. 



Di«iiit.-yi;y" 



.OOt^lC 



STATBUENT OF THB CONTKKTIONS. 

from the mails, is invalid, as abridging the freedom of speech." 

Furthermore, it was not claimed lliat the matter constituting 
the content of kiUery advertisements and tickets alone involved 
an exercise of the freedom of (he press, but only that they 
incidentally affected the press by denying pulishers the rev- 
enue to be derived from advertising, etc. 

The court in Dupre case (same opinion as Rapier case), 
after denying a distinction between mala in se and mala prO' 
hibila as urged, continues thus: 

"Nor ore we able to see Ihat Congress can be held in on 
nottmenl lo have abridged iht freedom of Ike press. The cir- 
culation of newspapers is not prohibited, but the government 
declines itself to become an ugent in the circulation of printed 
matter (to wit, lottery advertisements and tickets] which it 
regards as injurious to the people. The freedom of communi- 
cation is not abridged within the intent and meaning of the 
constitutional provision, tmless Congress is absolutely destitute 
of any discretion as to what shall or shall not be earned in the 
mails and compelled arbitrarily to assist in the dissemination 
of matters condenmed by iu judgment, tlirough the govern- 
mental agencies which it controls." Then the court reaffirms 
the Jackson case. 

I may admit the right of Congress to exclude dynamite from 
the mails, or any other actual instrument whose transmission is 
a material element in the commission of an actual crime, over 
which Congress has jurisdiction, but it docs not yet follow that 
Congress has the power to exclude "incendiary" opinions from 
the mails, nor unpopular opinions about the ethics of lotteries 
or of sex. 

So Congress, within its geographical jurisdiction, which 
includes, among other places, the post office buildings owned 
by the government, may make gambling a crime, and, as an 
incident to that power. Congress may punish or prohibit the 
actual commission of gambling through the use of the postal 
system. It docs not follow that it can also punish tlie con- 
structive crime of sending through the mail matter which 
merely expresses or suggests the idea of gambling, entirely 
separate from any particular scheme for accomplishing gam- 
bUng. There is all the difference in the world between punish- 
ing the use of the mails for disseminating opinions advocating 
the morality of gambling and punishing the use of mails to 
accomplish the crime of gambling. To decide that Congress 



ai 



Dn;ii;t.-iitiy' 



OBSCENE UTESATUBE AND CONSTITUTIONAL I^W. 

has the power to do the latter, does not in the remotest -de- 
gree imply that it has the power to do the former. Admitting 
that Congress has power in some places to punish certain sex- 
ual misconduct, it does not follow that it may punish purely 
intellectual crimes predicated merely upon sex discussions 
through the mails. It follows that nothing which has been 
directly or necessarily decided in any of the lottery cases 
has any bearing whatever upon the present controversy, as 
set forth in the foregoing statement of contentions. 

Admitting for the sake of the argument that courts have 
rightfully decided that Congress has the power to prohibit 
the use of the mails for the accomplishment of the actual 
crimes of fraud and gambling, it does not follow, and has not 
been decided, that the Congress has also power to make a 
constructive crime of such an act as using the mails for the 
dissemination of a truthful scientific book on the physiology, 
psychology or hygiene of sex, or of spreading through the 
mails legislatively unapproved ideas about sex-ethics. It may 
still be true, notwithstanding all that courts have thus far said, 
and even including the most rash dictum, that Congress lias not 
the power, implied from its authority to established post offices, 
of creating a constructive crime out of the dissemination of 
unpopular ideas, under the pretense of regulating the mails. 

In School of Magnetic Healing v. McAnnulty" the court 
says this: "Conceding, for the purpose of this case, that 
Congress has full and absolute jurisdiction over the mails, 
and that it may provide who may and who may not use the 
mails, and that its action is not subject to review by the courts, 
and also conceding the conclusive character of the determina- 
tion of the Postmaster-General," etc. (p. 107). Then the 
court goes on to hold that even conceding all that, "for the 
purposes of this case," the postmaster had transcended his 
power. Here again it is clear that nothing was either directly 
involved or decided which bears upon the extent or limitations 
of the implied power of Congress to regulate the mails, or the 
constitutional questions hereinbefore suggested. 

The next case is Public Clearing House v. Coyne". 

This was an application for an injunction against the post- 
master of Chicago for relief against a fraud order. After 
restating and reaffirming, by way of dictum, the case of Ex 
Parte Jackson, the court continues its dictum thus : "While it 

"lOT U. S. lOT. 
■nM U. S. 807. 



DlgilizcDD^' 



Google 



STATEMEHT OF THE CONTENTIONS. 

may b« assumed for the purpose of Ihis case thai Congresi 
would have no right to extend to one the benefits of its postal 
service and deny it to another person in the same class and 
standing in the same relation to the government, il does not 
follow that under its power to classify mailable matter, apply- 
ing different rates of postage to different articles, and pro- 
hibiting some altogether, it may not also classify the recipients 
of such matter, and forbid the delivery of letters to such 
persons or corporations as in its judgment arc making use of 
the mails for the purpose of fraud or deception or the dis- 
semination among its citizens of information of a character 
calculated to debauch the public morality."'" 

Again nothing was before the court which elicited argument 
or involved a decision upon the power of Congress to diffcren* 
tiate between mail matter according to its approval or di»ap> 
proral of the opinion transmitted, or the psycho-sexual states of 
the postal patrons. The only direct bearing of this dccisioa 
upon the question as to the extent of the implied power to regu- 
late mails is that the judicial dictum suggests a limitation upon 
that |>ower not heretofore suggested. It also leaves the whole 
matter of other limitations on the implication of absolute power 
over mails an open question. 

No case directly involving the constitutionality of the postal 
law against obscene literature has ever gone to the Supreme 
Court for decision, nor does it appear from the reported cases 
in (he lower courts ihat any >crious contention has ever been 
there made against their constitutionality. The foregoing 
analysis already shows that, in ■wi far a> the logic of the dictum 
in the Jackson case has been taken to mean that there were no 
limitations upon congressional control over the mails, even 
Iliai dictum has been clearly misconstrued, as is shown by the 
numerous judicial suggestions to the effect that there are some 
limitations. 

We conclude, therefore, that every objection to be herein- 
after urged again>t the conslitiitionality i>i these laws, as here- 
in-above suggested. « HCl only undecided, but free from the 
embarrassment of even on adverse dictum. If there is any 
doubt as to this conclusion it must be dissipated by the declara- 
tion of the Supreme Court itself, where it says: "The con- 
stitutionality of this law [against obscene literature] we believe 
has- never been attacke<l,"'* 

••1>uMti; CIdrtnc Kouk t. Cornc. IM U. S. AOT. 
■Public OnriDi Hook t, Cornc. 19* V- S. 60T. 

33 



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.ooj^lc 



CHAPTER II. 

ON THE ADVERSE EMOTIONAL PREDISPOSITION 

The worst insult I ever heard charged against any court 

■» I assertion tlui its judge was without prejudice upon 

tton of law. Our laws against obscenity in literature 

n upon the Federal statute books about thirty-five 

I elsewhere have existed even longer. After this lapse 

of time, one who presumes to raise new objections tor ifie an- 

nuUment of those laws, without assuming the existence of an 

adverse judicial, as well as popular, predisposition might have 

his conduct construed as an insult to judicial intelligence, or 

at least as a serious reflection upon his own. 

Long public acquiescence, the force of inumerable prece- 
dents, and an "eminently respectable" indorsement of these 
laws, combined with the natural and proper conservatism of the 
judiciary.all conduce necessarily to create a popular and judicial 
predisposition against my contentions. The special emotional 
intensity, which is almost certain to accompany a discussion 
of such laws as are here under consideration, impairs the human 
capacity for a dispassionate rational weighing of argument. 
The practical importance of that mental attitude, in creating 
a general, strong and perhaps a passionate hope that my con- 
tention will fail, would be very much and very foolishly under- 
estimated by me if I omitted all direct effort to re-establish an 
open-minded hospitality toward the arguments to be advanced 
later on. 

Furthermore. I have read all the officially reported decisioos 
in "obscenity" cases, and I have read many unofficial reports of 
instructions to juries and other accounts of the conduct of 
courts in such trials. According to many of these reports, even 
the seemings of judicial calm have been abandoned, and that 
which is false as a matter of science has been dogmatically 
asserted in language which suggests a substitution of passionate 
vituperation for logical processes. From the information thus 



Di(rii;t--y uy 



Gooj^lc 



ON TBB ADVBBSB RHOTIONAl. PR BD IS POSITION. 

acquired, from my acquaintance with the psychology of modesty 
and my knowledge of human nature, 1 know how easy it is to 
Iran&form a proper antl necessary conservatism into a passton- 
ate "will to believe," when, as in this ctasn of cases, conserva- 
Uim is associated with the sensitive emotions having tlicir 
origin in our sex-nature^i. I believe it is precisely this intellea- 
befofD^g combination which ha^ precluded the prior presenta- 
tion of the contentions now to be urged. 

I am welt aware that, in theory, our courts have nothing 
to do with the expediency of the laws, when passing upon their 
constitutionality. But 1 also know that the interests of (he 
litigant have very much to do with the judicial opinion about 
their expediency, because too often that unconsciously deter- 
mines whether the judge will be impelled to exercise his great- 
est ingenuity toward a discovery of reasons which will tend 
to uphold or to annul the statutes under investif:;ation. Those 
who disbelieve in freedom of the press naturally and unavoid' 
ahly will see at once all or many of those considerations which 
conduce to such a "construction" of the Constitution as will 
make an accomplished fact of that curtailment of liberty which 
they desire. If this mental predisposition is accompanied by 
intense emotional approval, as in this class of cases it is almost 
certain to be. a restoration of such open mindcdness as leaves 
the individual amenable to accurate weighing of argument is 
all but impossible except to the most highly developed intellect. 

As to the legislation against "obscene" literature, the 
public conscience feels the same pas-sionaie "moral" necessity 
which once impelled judges to exercise their wits and their 
might in a crusade against witchcraft and verbal treason. In 
Harper's Magazine, for Sept., 1907, we have a graphic ponrayal 
of the prejudiced zealous federal judge who upheld the con- 
xtitutionality of the sedition laws. Some more recent decisions 
upon a kindred question, if they evince te^s display of passion. 
yet show an equally deficient intellectual vision in the uphold- 
ing of similar laws. All this comes from the fact that we 
erroneoasly ascribe to a "moral" cause that emotional aver- 
sion whose remote source is usually unknown to us. but whose 
immediate reason for being is laid deeply hidden in our subjec- 
tive (emotional) states. 

And here again I am compelled to express regret at my 
inability in a masterful single terse sentence to present an in- 
stantaneous and complete picture of all the related co-ordina- 

25 



Dic'iJwitiy' 



OBSCENE LITEKATUKE AND CONSTITUTIONAL LAW. 

tions, as I see them. Yet such is the limitation of hunun 
thought and its expression that it cannot be done. My regret 
in the matter lies in this: To state some of my conclusions 
about emotional predispositions, before having argued out the 
psychology of modesty and obscenity, may intensify the veiy 
emotional aversion which I seek to obviate. And to elaborate 
the psychology first and at this stage of the discussion, is likely 
to secure me unmerited condemnation for its immateriali^ and 
impertinence. So, then, if I am to be condemned by emotional 
processes, my case is hopeless. If I cannot secure a patient 
attention to the very end of my presentation, then my very 
effort to attack the adverse emotional predisposition may inten- 
sify it, and it is sure to do so if I have overestimated the 
reader's healthy-mJndedness and his capacity for subjecting 
his so-called "moral" emotions to a severe critical introspec- 
tioti. 

That there is an adverse predisposition concerning my con- 
tentions seems unavoidably and unmistakably certain. The re- 
lation of the subject-matter to our emoiional life makes it 
quite probable that there exists in most minds an intense "will 
to believe" — a passionate hope — that I am wrong. If our hu- 
man natures have that uniformity which is usually ascribed 
to them, it is highly probable that in such a case as this a ju- 
dicial conservatism, otherwise commendable, may evolve into a 
one-sided zealous quest for means to uphold the laws in ques- 
tion, rather than a scientist's dispassionate search for truth, and 
in proportion as this zeal is great the capacity to weigh the rela- 
tive merit of arguments will be impaired. 

Of course this argument is prepared with the thought that 
sometime, somewhere, before some judicial tribunal, it will be 
a subject for examination. To the end, therefore, that there 
will be a minimum of unconscious emotional bias to cloud the 
visifin, I must devote myself to efforts at weakening that ad- 
verse mental predisposition, which is sure to exist in most 
minds. In so far as the approval of "obscenity" laws is a mat- 
ter of emotions, the situation is very difficult to meet adequately. 
Feelings are seldom successfully displaced by calm logical proc- 
esses. However, the most efficient means must still be an an- 
alysis of our "moral" emotions, to show the impropriety of mak- 
ing them the basis of ethical judgment, and to make a rational 
attack upon tht expediency of maintaining the laws in ques- 
tion, and this will now be proceeded with. When I have done- 

36 



DlgilizcDD^' 



Google 



ON THB ADVBRSB BUOTIONAL rRSDISFOSITION. 

what I am abk to do to weaken the potency of that "moral" 
KOtimentalizing which creates the mental altitude that will 
more diligently and energetically concern itself with verbalisms 
which lend only a seeming support to the feeling-conviction, 
than with discovering the logical necessities of constitutional 
right, then I will proceed wirh the more direct argument of 
the constitutional merits of the case. 

When later on we come to study the psychology of modesty, 
we will find explanations for this very general acquiescence by 
the members of the bar and the laity. It will, then, be found 
that the strong emotional approval of tlicsc laws by the general 
puUic, ignorant of all scientific knowledge of psychology, and 
especially of sexual psycholog)-, has been due to the funda- 
mental and all but universal error by which wc objectivizc our 
emotional appraismcnt of moral values. Thus the masses think 
they know because they feci and arc firmly convinced in pro- 
portion as they are strongly agitated. 

The judgment of the righteousness of these laws, thus 
founded upon an error of ignorance, and rc-inforccd by emo- 
tions which often owe their intensity to diseased nerves, as- 
sodaled in the same person with a ruisty-mindedncss, char- 
acteristics of prurient prudes, has, by a process of sujjifestivc 
contagion, become obsessive, even with more intelligent and 
healthy-minded persons. This process is easily understood by 
those who know the psychology of modesty. The few intelli- 
gent ones know that the emotional state underlying modesty 
and shame arises simply from a fear-induced application to our- 
selves of judpncnts primarily passed ujwn others. Upon this 
practically all psychologists are agreed, and it is this emotional 
aversion ami fear, with the blurred vision cnming from psy- 
chologic ignorance, which has produced such tremendous suc- 
cess for the vehemence of our moralists- from-discased-nervcs. 
The same emotional and psychologic factors which make it 
all but impossible for a jury to doubt the obscenity of a book 
alleged to be so. will make it nearly as difficult to secure an 
open-minded judge upon the same <[uestion or that of the un- 
constitutionality of these laws. We have an abundance of cmo- 
tkinal associations with unpopular words and ideas and we have 
ethical scnlinicnt.ilizing without limit, but these cannot fumiiih 
us with any objective facts, or standards for a rational judg- 
ment. What is the result of a prosecution for obscenity be- 
fore a jury thus totally lacking in every element for deter- 

27 



Disiiiaacy' 



iooglc 



OaSCBNK LITSSATUKB ANU LXIItSTITUTtONAL LAW, 

minii^ the issue of obscenity with even moderate precision? 
The pretentious agents of vice-societies, the prosecuting attor* 
ney and the judge, in impassioned tones vent their emotional 
disapproval in vigorous epithctic argument against the oflfcnd- 
ing book. In the nature of things, they cannot furnish the jury 
with anytliing else. If (hey could, the question of ohscenity 
would be a <juciition of law determinable by the court according 
to mathematically accurate standards and not a question of 
fact for the jury, to be determined according to whim, caprice, 
and moral sentimentalizing. Even when courts have treated it 
as a matter of law, their deciMons have still been only decisions 
reached by the same imcertain and personal standards. In these 
matters it is true of at) of us that we know only because we fed, 
and are firmly convinced because strongly agitated. 

The jury, of course, wish to be thought respectable, and a 
similar feeling will more or less unconsciously influence judges 
who have not been warned against this dangerous tendency. It 
may be thai the book offends their own emotional sense of pro- 
priety. The changes arc rung on the necessity for protecting 
the home, the women, the family and the children, until the ava- 
lanche of righteous vituperation creates such a mist of emo- 
tional disapproval that the juror forgets or loses what little 
capacity he may have had for looking behind the question-beg^ 
ging epithets. In the face of this condition the (tefen5« is help- 
less. It also is unable to furni.sh a scientifically exact yard- 
stidc, such as enables the juror in other cases to check his emo- 
tional predispositions. In the absence of a clear and over-mas- 
tering vision to the contrary, every juror's vanity of respecta- 
bility, unavoidably and unconsciously compels him unthinkingly 
to condemn everything which is vigorously denounced as "im- 
pure," by anyone connected with the prosecution or by popular 
ignorance, prejudice, supersiitition, or passion. In the face of 
a question -begging epilhetic argument, made in sudi a case and 
under such circumstances of ignorance and want of experience, 
no juror is able to reason upon the question at issue, which, ac- 
cording to the usual judicial legislation is : Does this particular 
book really tend to deprave and how, why, and by what code of 
morality is depravity to be determined? If compelled to answer 
these questions without promptings from the court or prosecu- 
tion, the juror must confess his inability to state how and ttfhy. 
The result is that jnst as in the witchcraft proscnilions. so here, 
in practically every case, to be accused is equivalent to a con- 

9B 




Dioiiit-U Uy V» U >^ 'X I -^ 



ON TBB ADVBKSB BMOTIONAL PHBOtSPOSTTION. 

Tictioa, yet not according to the letter of any statute, but ac- 
oorUing to the whim, caprice, prejudice or superstition of 
those who i>hape the emotions of a jury, wholly rea&onlesis, as to 
this particular subject. The profesuonal vice-hunters can and 
do boait that practically they never (ail to convict. Tliey 
•scribe thif to the inerrancy of their judgments, and point to 
the uniformity of convictions as an evidence ihat they exercise 
a wise discretion in the enforcement of a law which they admit 
b uncertain und therefore permits of abuses. In fact, tim result 
'k a product of ignorance and prejudice and is to be explained 
by the uncertainty of the statute and the fact that modesty is 
but fear of (be judgment of others (th« respectaUe prose- 
cutors). When the verdict of the jury reaches an appellate 
tribunal, the uncertainty of the law makes impossible a reversal 
on the question of obscenity. There bcin^ no exact standard, 
no thermometer of obscenity, by which its relative dcprcts can 
be measured, and the precise freezing point of modesty deter- 
mined, the appellate court in its helplessness practically never 
can reverse the judgment, because, their own emotional proprie- 
ties being in the least offended, the conviction of obscenity 
never seems to be without some "evidence" lo support it. 

This uniform affirmance of every verdict, like the original 
uniformity of conviction, i« made unavoidable by the psycholo- 
pc nature of modesty and the uncenainty of the statute and 
not in either case by the letter of the law. And so it may be 
even when we come to a discus.sion of the constitutional ques- 
tions involved. If the emotional predisposition of the judge is 
bat properly enlisted on the side of the "moralists." of hysteria, 
we may expect to find that mere figures of speech will be mis- 
taken for analogies, question -begging epithets will take the 
place of fact and argument, and mere empty verbalisms, bom of 
9df-righteous emotions, will have the probative force of a 
mathematical demonstration to the mind of an average judge, 
iriio has not been warned against this dangrrous source of 
error. Even some who have been warned, as I am now trying 
to warn them, will stilt lack that high intellectual development 
which alone makes possible a subordination of the emotions to 
the cold-logic processes. 

Because men are ignorant of sexual psychology, they lack 
insight to discover the valuelessness of the "moral" emotions 
of others, and being without that clarity of vision which could 
frame a satisfactory defense against the personal application 



Dn;ii;uytiy' 



.oo^^lc 



OSSCEKE UTEEATUKB AND CONSTITITTIONAL LAW. 



to Klf of such unreasoned "moral judgments" by others, it 
usually follows that tliey ha%-c not the intelligent disposition or 
courage to attack these laws. Even the attorneys employed to 
defend such cases have quite unifonnily found their intellectual 
acumen paralyzed in the conflict with their own emotional 
approval of these laws. In the half-conscious fear of the 
like unreasoned and more intense emotions of their prudish 
neighbors, who jjerhaps are the unconscious victims of sexual 
hypcraestheticism. these attorneys quite unavoidably apologize 
for defending such a client. By his very demeanor the de- 
fendant's attorney insinuates a verdict of guilty into the mind 
of the judge and juror. The same intellect-benumbing intltience 
has thus far made it impossible for any attorney employed in 
over 5000 of such cases to even discover that there are cod- 
slitutional questions wliicli it was his duty to present in de- 
fense of his client. Where such conditions prevail, no lawyer 
is doing his duty if he does not open a discussion of the con- 
stitutional problems by an attack upon this adverse mental pre- 
disposition — by a plea for open-mindedncss. 

In the past ten years, sexual psychology has made long 
initial strides. A few besides the specialist are beginning to see 
that, like witches, obscenity exiMs only in the minds of those 
who believe in it. Of this more will be said hereafter. Know- 
ing this, these few are ceasing to fear the emotional judgment 
of iialacious ascetics, because they are now accounted for by a 
diseased sex-sensitiveness and are seen not to be entitled to arqr 
moral valuation. When lawyers are so clean-minded as to be- 
lieve, and be (irmly and tcientificaily convinced, as later on we 
expect lo convince them, that "unto the pure all thinjjs are 
pure," then, and not till then, can there be any open-minded and 
fearless inquiry into the constitutionality of these laws. 

Only in such confident clean-mindedness can we hope for 
the moral courage to resist the suggestive intimidation of pru- 
rient prudes, and replace the befogging intensity of emotional 
aversion lo my contention with the lucidity of scientific evi- 
dence and logical argument. When the completed presenta- 
tion of the case is made to such a court, our present laws against 
obscenity must disappear, perhaps to be replaced by others 
which will lie more intelligible an<l consonant with a decent and 
enlightened conception of constitutional hberty. 

Prof. Wm- James, of Harvard Universit)-," wrote this: 



30 





L/ffiiiit-viuy 



Ot)^lC 



ON TBB ADVSKSR BMtH'IONAL PRE DISPOSITION. 

"The truth is that in the mcupliysical and religious sphere, 
articulate reasons arc cogent for us only when our inarticulate 
feelings of reality- have already been impressed in favor of the 
same conclusion." In the very nature of our being, in its 
present state of evolution, the whole matter of sex is so in- 
separably involved with mystical religious and other emotions, 
that in atl discussion of sex subjects, even more «) than in 
the field of metaphysics and religion, we assume to "know be- 
cause we feel and are firmly convinced because strongly agita- 
ted." Out of this very exceptional condition comes the fact that, 
00 matter how highly the critical faculty of his mind may be 
developed in its application to other subjects, when it comes to 
matters of sexual topics scarcely one man in a million can 
reason calmly; for his "moral" emotions will dethrone hJa 
reason, and mere verbalisms, and righteous vituperation will 
lake the place of Ic^cal facts of experience, ami thus articulate 
jeemings of reason will be cogent enough to confirm any con- 
clusion which the inarticulate "moral" feelings have already 
predisposed us to believe. This will usually be so not- 
withstanding these feelings are based upon mere unreasoned 
sympathetic imitation and emotional as<;ocialion. impose<l by the 
mere thoughtless reiteration of customii. which often have their 
source and derive their special character from the vehemence 
of those who arc afflicicd with psycho-sexual abnormity, (eroto- 
phobia) often claiming religious indorsement, and which the 
rest of us, without rationally well defined ethical convictions, 
will adopt, though ourselves heal thy -minded. Upon this sub- 
ject we shall yet have much to say. especially when later in its 
relation to "Due Process of Law" we come to discuss the psy- 
chology of modesty more in detail. 

The practical problem is to discover how we are to insure 
in ourselves that open-mindedness to the realities of reasoning 
which the importance of the situation imposes, and the peculiar 
psychologic factors of the problem make so difficult ? Simply 
by remembering and submitting ourselves to the control of 
a very few maxims of elhical science as contra-clistinguished 
from "elhical" sentimental ism. Wordsworth Donisthorpe, 
M.P., puts it thus: "No man has ever yet succeeded in defin- 
ing virtue a priori."' To bear that in mind and always act 
upon it would all but destroy moral scntimcntalism. Dr. 
Edward Westermarck, a very distinguished Swedish scholar, 
implies a similar truth when he is writing of "the error we 

•A Pha tM LJbMtT. V- 19-1*- 

31 



Dis'«aa cy ' 



OnSCeNE LITKBATURE AND CONSTmmOKAL LAW, 

commit by attributing objectivity to our moral estimates," the 
folly of which he points out in the following words: "The 
qnanlity of moral estimate is determined by the intensity of the 
emotions which their object lends to evoke under exactly simi- 
lar circumstances."* Prof. Munsterburg, of Harvard, ex- 
presses it thus: "No subjective feeling of certainty can be an 
objective criterion for the desired truth."' More will be said 
upon this subject when we come to study the uncertainly of 
the "moral" test of "obscenity." 

If, then, the reader desires to avoid moral sentimentalizing 
in favor of the rational ethics, and further desires to approach 
the constitutional questions herein involved with that opcn- 
roindedncss which can come only as an accompaniment to sub- 
jugated emotions, we must first of all resolve to be guided only 
by objective criteria for the desired truth. Having resolved to 
be thus guided, let us make a httle preliminary inquiry as to 
what may be and has been suppressed under these laws, and de- 
termine, by such tests as we have now agreed to use. whether 
any real question of morality is involved. This discussion, 
and more of a kindred nature which is to follow, has for its 
objects: pirst. to increase the intcllcclual hospitality for the 
constitutional argument to follow; secotid, to exhibit somt of 
the general considerations upon which our constitutional 
guarantee of freedom of the press was adopted, and thus fur- 
nish us helpful clues to the interpretation of that clause of the 
Constitution. To this end will be exhibited some of the evils 
which come from such laws, and this will be followed by a 
general vindication of the right of every adult citizen to 
know all that can be known even about the subject of sex. 

'Oriflo ind Drrrlepmenl of Uoral Idenk *. I. 9- II- 
•Ti-M, Uttaimt, Mireb. ItOT. p. «te. 



r 



3* 



Disiweacy' 



CHAPTER III. 

NO "OBSCENE" LITERATURE AT COMMON LAW 
Revised from The Albany Law Journal. May, 1907 

For nearly a century unintelligent reformers have asserted, 
and unindustrious attorney* have repeate<i the statement, and 
courts, made credulous by a passionate hope that it might be 
true, have, by way of dictum, affirmed that obscenity, as we 
now understand the term, in the liRht of our modern puritan- 
ism, was an offense at common law. 

The truth or error of the statement has several important 
bearings. When wc come to a discussion of the meaning of 
"freedom of the press" it may be of importance to know just 
bow much liberty of the press was enjoyed at the time of the 
adoption of our Constitution. 

In studying the present outrageous suppression of medical 
and conI^over^ial literature under the pretense of suppressing 
"obscenity." I am reminded of this cynical statement of Ser- 
geant Hill: "When judges are about to do an unjust act, they 
seek for a precedent in order to justify their conduct by the 
faults of others." But there is another reason for destroying 
the profeisional illusion ab"Ut ol»>cenitY at ilie common law. be- 
cause by destroying the veneration, often superstitious, which 
lawyers and courts give to supposed precedent, we may also 
inc^<■a^e their intellectual hospitality for the constitutional argu- 
ment which ftJlows: 

Going back to the sixteenth century, wc find no such gen- 
eral prudish sentimentalising as is now current over the "ob- 
Kene" of the nude human, nor over a robust frankness in (be 
discussion of sex -problems. Of course, even before this, we 
find ascetics of unbalanced mind, who declaimed against all 
that stimulated their unhealthy sex-sensibilities, but no law as 
yet had made their diseased condition the standard of virtue. 
Not being able to suppress the more healthy naturalness of 
others, they usually fled to some mountain or desert retreat, to 

33 



Disteency ' 



.UOi^lC 



OBSCENe UTER.VTUHIi AND CONSTITUTIUNAL LAW. 



escape the temptations whidi endangered their "spiritual" wel- 
fare. 

Among those who did not thus flee, we find Christian sects 
who esteemed it a special virtue to parade the highways, and 
more privately wor'hiiKrd, in Adaj:ii<: «>sHiriie. Fnmi such 
habits these sects have come to be known as "Adamites." No 
taw was invoked to suppress their "obscenity," though they 
suffered persecution for their heresies. The obscene in nature 
not having received legal recognition, of course an "obscene 
libel" was then unknown. 

In March's "Action for Slander and Arbitremcnt"' pub-'d 
lished in 1648, and revised in 1674, it is said concerning libel-* 
Ous letters: "Yet the star Chamber of the King did take knowl- 
edge of such cases and punish them ; the reason is for that such 
quarrellous letters lem) to a breach of the peace." Numerous 
refinements were indulged in to exclude from suppressive 
measures what did not directly tend to violence. Thus it was 
held that a general charge of criminality was not slanderous, 
since only a very specific accusation would tend to a breach of 
the peace. So long as such tendency to violence was the lest 
of the criminality of a publication, nothing could be punished 
merely because it was generally "obscene," though a specific 
charge of obscenity against a living person, who would be 
tempted to resent it. might be tndicuble. 

Since England had an established church, naturally any- 
thing (including the so-called obscene publications) which dis- 
credited the official religion would also be held libelous. We 
shall presently see how, from the suppression of "obscene im- 
piety." has erroneously grown the notion that all so-called "ob- 
Kcne" literature was suppressed at common law. 

The oldest case of conviction for obscenity, found in the 
law reports, was decided in 1663. The printed record, handed 
down, only informs us that on "confession of information 
agaract him for showing himself naked in a balcony and throw 
ing down bottles (piss in) vi & armi.t among the people in Co- 
vent Garden." he was fined 200 marks.' It seems that in addi- 
tion to actual violence, in throwing the bottle, Sedley was guilty 
of blasphemy. Stephens tells us that Sedley "Stripped him- 
self naked and with eloquence preached blasphemy to the 
people.'"* 

The next reported decision was rendered in 1708. by Lord 
•p. iw. 

tklnB *. StdlFT. Kct>b1r. MO. Sldtrfint R. Kt. 10 Stut TrUU An, N. 
^Crimlul U« of EntUod. V. 3. ts fO. 

34 



Did 



.oogle 



NO "obscene" liter.\ture at comuon laW. 

Holt, who, more tlian other judges, stood out against the tyr- 
annies of the crown. The decision use« these words; "A 
crime that shakes religion, as profaneiicss on ihe stage, etc., is 
indictable, but writing an obscene book, as thai entitled 'The 
fifteen plagues of a maidenhead,' is not itKlictablc. but punish- 
able only in the spiritual courts."* 

The next rqiortcd decision is of the date of 1727. This 
case is of importance to us, because it is the one case which is 
relied upon to show that the circulation of "obscene" literature 
was a crime at common law. and, a-s we shall see later, it is 
erroneously assumed that "obscenity" then meant what "ob- 
Kenit>'" now means, according to puritan standards. 

Information a^insi [he defen<lant was "for that he existens 
homo iniquus et celeratus ac nequiUr machtnans ei inUndens 
bonos mom subditvniin hujus rrgni comimpfrt. et cos ad nc- 
quiliam inducers, quftidam turpem iniquum it obscaenum libel- 
turn intitulat (Venus in the cloister, or the nun in her smock) 
impift et nequUer impressel el publicaxnS ac hnprimU et publican 
caujoi-it (setting out the several lewd passages) in maium er- 
etnplum" etc 

The defendant was found guilty, and a motion made in ar- 
ircst of judgment. For the motion Mr. Marsh argued: "The 
defendant may be punishable for this in the spiritual court as 
an offense contra bonos mores, yet it cannot be libel for which 
he is punishable in the temporal courts. In the case de tibellit 
famosis my Lord Coke says that it must be against the public, 
or some private person, to be a libel ; and I don't remember 
ever lo have beard this opinion contradicted. Whatever tends 
to corrupt tlw morals of the people, ought lo be censored in 
the spiritual court, to which, properly, all such causes belong. 
I don't 6nd any case wherein they were prohibited in such a 
cause: in the reign of King Charles the Second there was s 
filthy ran of obscene writings, for which we meet with no 
profiecution in the temporal courts." 

The Attorney-General admitted that there was no precedent 
(or this conviction. He argued: "Peace includes good order 
and government, and that peace may be broken in many in- 
stances without actual force: 1, if it be an act against the con- 
stitution or civil order : 2, if it be against religion ; 3, if it be 
against morality." 

Under the third head the Attorney-General argued as fol- 
lows: "As to Morality, destroying that is destroying the peace 
or government, for govcrmnent is no more than public order, 

*0«« T. R«»d. II M»d(rB Rt^fti, MM No. lOt. 

35 



DnjlJIt-'litiy' 



.OOi^lC 



OBSCENE LlTERATttRE AND CONSTITUTIONAL LAW. 

which is morality. My Lord Chief Justice Hale u«d to say 
Christianity is a part of the law, and why not morality, loo? 

"I do not insist that every immoral act is indictable — but 
if it is destructive of morality in general, if it does or may ef- 
fect the king's subjects, it tlien is an offense of a public nature. 
And upon this distinction it is that particular acts of fornica- 
tion are not punishable in the temporal courts and bawdy 
houses are. In Sir Charles Sedley's case it was said, that this 
court is the cusfos nwrum of the king's subjects, and upon this 
foundation there have been many prosecutions against the 
players for obscene plays, though they have had interest 
enough to have the proceedings stayed before judgment." 

The chief justice said he would convict were it not for the 
decision in Queen v. Read. "If it tends to disturb the civil or- 
der of society I think it is a temporal offense." Justice For- 
tescjuc said : "I own it is a great offense, but 1 know of no law 
by which wc can punish it. Common law is common usage, 
and where there is no law there can be no transgression. At 
the common law drunkenness, or cursing and swearing, were 
not punishable ; and yet I do not find the spiritual courts took 
notice of it This is but a general solicitation of chastity and 
not indictable. Lady Purbeck's case was for procuring men' 
and women to meet at her house, and held not indictable un- 
less there had been particular facts to make it a bawdy house. 
To make it indictable there should be a breach of the peace 
or something tending to it, of which there is nothing in thit 
case. Libel is a technical word at common law, and I must 
own the case of the Queen v. Read sticks with me, for there 
was a rule to arrest the judgment nisi. And in Sir Charles 
Sedley's case there was a force in throwing out bottles upon 
the people's heads." 

After the second continuance. Chief Justice Fortcsque hav- 
ing in the meantime retired from the bench, the reporter adds: 

"In two or three days they gave it as a unanimous opin- 
ion that this was a temporal offense. . . . They said if 
Read's case was to be adjudged they should rule it otherwise." 
No reasoning is given or precedent cited.* 

In the earlier report of this same case we 6nd a different 
and better statement of the reasons for the decision. Tt is in 
these words: 

"After solemn deliberation, the court held it to be an of- 
fense properly within its jurisdiction ; for they said that reli- 

•Ru ■ Cad. f Stnncc Rep. TI9. 

36 



DialiiMCy 



NO "obscenk" literature at common law. 

gion was part of the common law ; and therefore whatever is an 
offense against that is evidently an offense against the commoa / 
law. Now morality is the fundamental part of religion, and 
therefore whatever strikes ag»in>( tliat, imiit, for the same 
reason, be an offense against the common law. The case of 
King and Taylor, i Vcntris. 293, is to this very point,"* 

Tlic case of King and Taylor, cited by the court, was a case 
of obscene blasphemy for calling Jesus Christ a bastard, and 
a wbore-master, and declaring all religion a cheat. It is evi- 
dent, therefore, morality is used only in the Knsc of religious 
morality, especially since no scientific ethics had yet come 
into exi-iteiice. 

It is evident from the authority cited, and from the judicial 
language, "morality is the fundamental part of religion," and 
from the title of the book, "Venus in the cloister or the Nun in 
her smock," that the court had no occasion or thought to penal- 
ize obscenity in literature as obteenity, and when it did not 
discredit the established religion or its servants, nor was of a 
seditious ruture, nor concerning an individual so as to provoke 
a breach of the peace. 

Subsequent authorities show that the foregoing analysis is 
correct, since no other interpretation of King v. Curl can be 
made to harmonize with subsequent judicial action. 

The next reported ca*c was decided in 1733. This decision 
clearly shows a healthy mindedness which now is scarce among 
U5. and confirms the conclusion that Curl's case was decided 
on the impiety of the offending book, and not because of its 
obscenity as such. The report in the Gallard case reads as 
follows : 

"Indictment contra bona mores, for running in the common 
way, naked down to the waist, the defendant being a woman. 
S. moved to quash, because the fact is not indictable. F. contra : 
Indictment will tie contra bonas mores as against Curl for pub- 
lishing an obscene book, i Sid. 168. Sir Oas. Sedley's {Sed- 
ley's) case, 1 Kcb. 620. Quia immodests and irrevercntas, be- 
haved himself in church. Another indictment was for printing 
Rochester's poems: Sed. per Curl. The indictment must be 
qua^died, for nothing apj^ars immodest or imlawful,''* 

The next case of "obscene and impious libel" was against 
the notorious and stormy John Wilkes in 17A8. He fled the 
country and was outlawed without contest, and in the subsc- 

•Klag T. CvrL Btmardlfton'* Rtpart 1> <A. D. ITt«). 
*IUnt >, GslUrd. W KrrriiKt. p ifls 

37 



Dnj ii;t.-;i uy ' 



.OOi^lC 



OBSCENE LITEKATUIIE AND CONSTITUTIONAL LAW. 

quent proceedings only technical questions of procedure were 
considered. It seems that several of his publications gave 
offense, Ihough the name of but one is furnished us, "An Essay 
on Woman." This is a hawdy poem, in whidi the name of 
the deity is impiously interwoven with its description of las- 
civious joys. The pamphlet closed with another bawdy en- 
titled "The Maid's Prayer," and addressed to "TTic propitious 
God of Love." 

The report informs us that "Mr. Wilke's counsel and agent 
making no ohjt-ction thereto— <Ieclining to enter into his de- 
fense, verdicts were found against him," and he was outlawed. 
Later he came into court, and. on ledinical grxmnds, moved to 
vacate the judgment, and "with a written speech to justify the 
crimes." The outlawry was reversed upon technical defects in 
the papers, but the conviction was undisturbed, only technical 
questions of procedure being considered by the King's bench. 
In the record of Willce's sentence only these few words en- 
lighten us as to the reason for the conviction: "Being con- 
victed of certain trespasses, contempts and grand misde- 
meanors, in printing and publishing an obscene and imfnous 
libel, entitled '.An Essay on Woman' attd oihtr impious libels, 
etc.'" 

Especially in view of Wilke's turbulent career and the 
stormy time* which surrounded this trial, the judgment entered 
by default can not properly be said to be of much weight as 
an authority. Yet it was designated an "impious libel." as well 
as obscene, and therefore is in harmony with our theory that it 
required something more than mere obscenity to make a pub- 
lication criminal at common law. 

These are the only decisions on obscenity prior to the sep- 
aration of the American colonies, and therefore the only ones 
which became a part of the common law of America- Fur- 
thermore Ihey demonstrate that "obscenity," merely as such, 
was not a criminal offense. To make it punisliable it must be 
ol that personal and specific character (against a living per- 
son) such as tended to disturb the peace, or else it must be 
interwoven with impietj- such as tended to discredit the estab- 
lished religion or government. 

To make it still more clear that the English oonimon law, 
before the Revolution, never punished "obscene libels," as 
such, that is, where unconnected with blasphemy or seditious 
I tendencies, we may profitably review a few of the English 

■Rci w. Jabn Wirkn, < Barron. WIT-WII. 

38 



L'Hjiii(:;rt;v 




oogic 



NO "OKSCKNe" LITKRATiniB AT COUUON }JiW. 

authorities immediately following the American Revolution. 

The first of such cases. King v. Tophan, decided January, 
1791, was a ease of libel on the memory of Earl Cowpcr, 
which had been published in a newspaper. The indictment 
charged that defendant had accused the Earl of having; "ted 
a wicked and profligate course of life, and had addicted him- 
self to the practice and use of the most criminal and luimanly 
vices and debaucheries on," etc., "at," etc., "to the evil exam- 
ple," etc.. "and against the peace." 

Now. to publish accounts of such "unmanly vices" would 
almost certainly be adjudged "obscene " and had it been so 
considered in 1791 the defendant would in this case have been 
convicted. Lord Kcnyon, in his opinion, quoted with approval 
I Hawkins Pleas of the Crown as follows: "The chief caused 
for which the law so severely punishes at! offenses of thisl 
nature {tibek] is the direct tendency of them to a breach of the | 
public peace, by provoking the parties injured, and their 
friends and families to acts of revenge." {Citing i Haw. P. 
C. chap. 73. sec. 3.) The courl continues: "Now to say, in 
general, that the conduct of a dead person can at no time be 
canvass«<l ; to hold lliat even a Iter ago are passed, the con'ltict 
of bad men cannot be contrasted with the good, would be to 
exclude the most useful part of history." It was accordingly 
held lliat the indictment staled no offense, or. in other words, 
to publish of a dead person accounts of "unmanly vices and 
debaiKlieries" was not a libel, cither obscene or otherwise.' 

The analysis of all the cases on obscenity that were re- 
ported in England before the American Revolution, as well as 
those authorities that came into existence immediately after, 
are conclusive upon the point, that mere "obscenity." as such, 
was not a common law crime before Ihe Revolution, and, 
therefore, never became a common law crime in America, al- 
though I believe some court>, on a superficial and uncritical 
view, have held otherwise. 

That in the Curl case it was the irreligious tendency oft 
■he book which made it criminal and not the bawdy character ' 
thereof, is further shown by the law writers of the time. 

"The mere speculative wantonness of a licentious imagina- 
tion, however dangerous, or even sanguinary, in its object, can 
in no case amount to a crime. It is a passion inseparable from 
the essence of the human mind to delight in the fiction of that 
the actual exigence of which would please."* 

■Lord AstklMd*! Frincipin of Pcnil !.«■, p. M, Lond. ITTl. 

39 



DmiJIt-'i! uy ' 



.OOi^lC 



OltSCBNE LITERATURE AND CONSTITUTIONAL LAW. 

With knowledge of, and in sprite of the decision ia King v. 
Curl, Hawkins, in his "Pleas of the Crown." thus states the 
common law on the subject: "However, it seems clear, that 
no writing whatsoever is to be esteemed a libct. unless it re- 
flects upon some panicular person ; and it seems that a writing 
full of obscene ribaldry, without any kind of reflection upon 
anyone, is not punishable, as I have heard it agreed in the 
court of King's bench."^" 

In 1809 we come to the first English case wherein our 
modern puritanical conception of modesty finds recognition. 
The indictment was for exposing the naked person by bathing 
in the sight of homes. A verdict of guilty was followed by 
an appeal, and the Court of King's Bench left this report of 
its conclusion: "As this is the first prosecution of this sort 
in modem times, they [the judges] consented to his being 
discharged."" 

As a further confirmation of our conclusion that the com- 
mon law of England and .America knew of no such crime as 
circulating obscene literature except when it was of the panicu- 
lar kind which directly discredited religion, wc may point to 
the law-book writers of the time, who uniformly classified it 
as an offense against God, not at all as one of any other direct 
coDsequences to the civil order. 

With the creation of our secular commonwealths, wherein 
a union of church and state is forbidden, our constitutions 
have repealed all common taw offenses against God. Writers 
such as Blackstonc make no mention of such an offense ex- 
cept as an offense against God. 

This little review, which I think covers all the reported 
cases bearing upon the common law against obscenity, shows 
conclusively that it is an error to claim, as often is done, that 
obscenity in our modem sense was an offense at common law. 

If any further proof was necessary to show the relative 
indifference to so-called obscenity as such, we may find it in 
the statement of Erskinc in his argument in the case of Thomas 
Camau. He said : "I shouM really have been glad lo have cited 
some sentences from the one hundred and thirteenth edition 
of Poor Robin's Almanack, published under the revision of the 
Archbishop of Canterbury, and the Bishop of London, but I 
am prevented from doing it by a just respect for the house. 
Indeed, I know of no house — but a brothel — that could suffer 

■•Hi<ri(lB>' PItK of lb( Croim. vol. 1. p. 110. Se*«atb Ed. irW, 
"Rea >. CtudcD. 1 Crapbclt, B«. 



Dicli^en cy 



so "OBSCENE IJTiaiATUKE AT COMMON LAW. 

the quotation. The worst of Rochester is ladies' reading when 
compared with them. . . . When ignorance, nonsense ahd 
obiicenity, are thus fostered under the protection of a royal 
patent, how must they thrive under the wide spreading foster- 
ing wings of an act of Parliament.'*" 

If still more proof is deitired we have it in the literature 
of pre-rcvolutionary times. When, in t8S8, VizetcUy, a cele- 
brated English publisher, was arrested for "obscenity" in the 
vending of Zola's novcU, he published a unique defense. After 
exposing and denouncing the falsehood published to arouse 
puUic opinion, be re-published "Extkacts Pi(iNCtPAu.v from 
English Cla.ssics. Showi.nt. that the Legal SrppsEssiON 
of M. Zola's Novels would Logically Im-oLVE the Bowiv 

LESIZINC OF SOMK OF THIi GREATEST WORKS OP ENGLISH 

LiTCRATVBE." ThcM extracts made a good sized volume, and 
includei) Shakespeare. Iteaumont and Fletcher, Massinger. 
Defoe, Oryden, Swift. Prior, Sterne. Fielding. Smollet, and 
scores of others. I am informed that these passages were 
deemed so "obscene" that the court punished him for contempt 
for having even presented them in ailment. And yet. not 
one of tbe«e was ever the subject of prosecution at common 
law. 

For each and all of these reasons, I assert that "obscenity" 
merely as such, (that is. dissociated from blasphemy and sedi- 
lti>n iir a tendeni-y to pr-^vi.tcc a breach of the peace in private 
revenge) was not punishable at common law, and that at the 
adoption of our constitutions and prior, the circulation of such 
matter was a part of the freedom of the press, although such 
freedom was only a matter of permission. 

However, under the judicial amendments of our constitu- 
tton.i)ly guaranteed freedom nl the press as an unabridgabic 
right, we liave fewer privileges for sexual diMUSsion than were 
enjoyed before the American constitutions or revolution. So 
Bttich ha.« oiir c<>n>lilulional right been judici,illy annulled. 
The question In: Shall our constitutional freedom be restored? 

■fbabia*'* S^tmIm. ml. I. ml sitt. 



II 



DlOHJL'il Uy 



Cooi^lc 



CHAPTER iV. 
THE ETIOLOGY and DEVELOPMENT 

OF OUR 

CENSORSHIP of SEX-UTERATURE. 

The etiology of dcpotism is always quite the same. The 
absence of understanding, or appreciation, of libcny on the 
part of the masses and the natural lust for power, which makes 
every human a potential tyrant; makes him indifferent to all 
tyranny which does not directly effect him ; and makes him sub- 
missive to even that tyranny which is exercised injuriously over 
himself if only in his turn he can lyranniie over others— it is 
these conditions, now combined with the prevalence of a 
prurient prudery, which have produced the present result. The 
initial exercise of tyrannical power always has to do with sub- 
jects as to which there is great public indiflference. or a quite 
general approval, at least of a sentimental sort. The populace 
thus accustomed to the exercise of tyrannous authority, doze 
on with the delusion of liberty secure, while the lust for power 
induces officials to cxlerul their authoritarian blight from one 
subject to another, until in the end the stupid masses awake to 
find thai they possess all their liberties only as tenants at will 
of masters whom they thought servants of their own creation. 
I cannot believe these "obscenity" laws would ever have pawed 
any American legislative body, had it been previously an- 
nounced that the result would be such as it now is, within and 
beyond the domain of sex-discussion. 

Here I must limit myself to an exhibition of the forces 
behind this censorship and of its development from the sup> 
pression of "obscene blasphemy" to "blasphemous obscenity": 
from the suppression of mere pornographic filth to the nude 
in legitimate art; from medical prudery to the suppression of 
popular medical books, thence to serious and more pretentious 
sexual science and finally including "purity books" and perhaps 

43 



Ditj fiEcn cy 



Google 



ETIOLOCV AND DEVBLQPMENT UF OUR CENSORSHIP. 

the Bible. The extension of the censorship into the realm of 
politics and economics I cannot discuss, though it has been as- 
tonishingly wide. 

When, from the vantage ground of an age of true enlighten- 
ment, future generations shall look back on our vaunted age 
of (contemptible?) civilization, they will be moved by mingled 
feelings of pity and scorn, even as wc arc so moved when 
lookini;: back upon the "Dark Ages". As now we sec the mon- 
strosities of the witch-craft superstition, so some future gen- 
eration will look back in wonderment at our present sex- 
superstition.' While in the "dark ages'" men were punished for 
doubling some tenet of the creed of dogmatic theolog)-. wc in 
this "age of civilization" punish men for expressing doubt as to 
some tenet of the creed of our dogmatic sex-morals; where 
fonnerly humanity was by law compelled to accept inspired ge- 
ology, wc of to-day are by law compelled to accept inspired 
sexology. For centuries the astrologers made it a crime to teach 
the common people astronomy, just as in this twentieth century 
it is a crime to teach the common people real sexual science. 
The general disaemination of information about geology and 
astronomy was prohibited because they discredited the fables of 
Genesis about the creation of the earth ; to-day the general 
dissemination of information about ihe sexual sciences (physi- 
ology, anatomy, psychology, and ethics) is prohibited because 
these scienc** discredit the fabler of ascetic priests about the 
reproductive function of man. Formerly it was thought ex- 
tremely dangerous to allow common people to read the Bible 
because of the awful consequence.^ of erroneous priv.ite judg- 
ment, just as now sexual discussion and sciences must be 
withheld on accotmt of the same stupid fear. 

We are *ii intoxicated with unenlightened emotions over^ 
Ihe word "liberty" that we have not the capacity to find out 
its meaning, nor to discover that we have less liberty of 
speech and press to-day than existed in England a century 
ago. There would be grim humor in most of what I am 
going to record, if only we could relieve ourselves of foolish 
apprehensions based upon our popular superstititions and ego- 
mania, and view ourselves and our fellows, as thcsophists say 
we tnay view our pre.sent activities, from the eminence of 
some future incarnation. 

■S» -ORSCKVITV AJJn WITCTICRAFT, TWIV SL'PERSTITIONS." In 
PkixVal CmtlmH lor luiif. 1W7: •■WIL\T IS CftlMIN-MJ-V OBSCENET" 
Alttmy Lam Jrvrmal. Jul)'. 190*. 

41 



Dnjii:uy tiy ' 



.00^ Ic 



I 



OBSCEKC LITERAIL-RK AND CONSTITUTIONAL LAW. 
KN-EELAKD BLASPHEMY TAIAU 

Wh«n the desceiKUnts and the successors of the puritan 
witch-huBlers came to framing their fundamental law for the 
State of Massachusetts, they thought it necessary to God's 
vanity that his existence be given official recognition ia the 
Constitution. This seems to have operated as a limitation, or 
the creation of an exception, to other clauses of the Consti- 
tution, such as the guarantee of freedom of speech. 

But in the blasphemy trial of .\bner Knceland. which oc- 
curred in Massachusetts in 1834. the charge of blasphemy was 
reinforced by the prosecutor with this quotation from a work 
sold at the office of Kneeland's paper. The Investigator: "We 
have now, perhaps, sufficiently matured the subject, so as to 
be prepared to propose and answer the c^iuestion, 'what laws 
would you have in relation to matrimony?' To which I 
answer — Marriage is a civil contract between the parties which 
stands upon the same basis of all other civil contracts, which 
are binding as long as the parties mutually agree, and no 
longer. The parties who make the contract, can dissolve it at 
pleasure, or by mutual consent. But if the parlies cannot 
agree to separate by mutual consent, then it is necessary to 
call in a third part>'. one or more, as referee or arbitrators, not 
to bind the parties together — for in relation to matrimony, 
where the ties of affection do not bind them, this is impossiMe 
— but to say on wliat terms they shall separate, not only in 
regard to the property, but also to the maintenance and the 
education of the children, if there be any ;•••"• I would ha%'e 
no one therefore marry for life, in the first instance nor for 
any certain period of timc."'"But be not alarmed, the above 
principles arc not intended for the present state of society' at 
sll. and not until all children are provided for by the public 
(who are not siifTicicntly provided for by their parents!, both 
as regards their maintenance and education." For circulating 
this "blasphemous" statement the defendant was vigorously 
denounced before the jury, and after reading the foregoing 
extract these questions were asked of the jurors as answering 
themselves: "Who will say that courts of justice ought not to 
enforce the law against disseminating the moral and political 
poison of Atheism, and blasphemy? and proclaim their disgust 
at a system combining blasphemy, atheism, infidelity, adultery. 
lewdness, removing all moral and religious and legal checks 

44 



L'ltiiEracv 




00^ IC 



ETIOLOGY AXD DE^'ELOPMENT OF OUI CENSUKSlllP. 

Upon human depravity, and leading to a rommunity of proptrty, 
and 5triking directly at the foundation of civil society? Prose- 
cuUoiu o</aiiut blasphemy at this lime, in this country, are not 
merely the causes in which Cod and Religion only are con- 
terned"'. A verdict of guilty was rendered and affirmed on 
appeal. 

Later the word "blasphemy" became unpopular and lost its 
sting as an epithet of criminality, and, notwithstanding tlie law, 
those who desired to blaspheme could do so with practical im- 
punity. The high-priests of fanaticism therefore felt com- 
pelled ic secure laws which, under less archaic names, would 
enable them more successfully to punish what theretofore had 
been called "blasphcniy" ; and they are about to succeed. I 
am informed that in 1872 the original draft of the "obseenit/' 
statutes included "blasphemous" literature among the unmail- 
able postal matters. In 1878 the N'. V. Society for the Sup- 
pression of Vice,' boasted that a "class of publications issued 
by frcelovers and free-thinkers is in a fair way of being 
stamped out." Since then many of the statutes against 
"obscene" literature have been amended by the addition of 
several other epithets, such as indecent, filthy, and disgusting, 
which are even more outrageously indefinable than the original 
"obscene." Under the vague statutory words "indecent, filthy, 
disgusting," several attempts have been made to secure con- 
viction for circulating merely anti-religious literature. Such 
cases were the arrest of Bennett for circulating "An Open 
Letter to Jesus Christ" : the arrest of Moore, in Kentucky, for 
circulating irreligious literature, and the arrest of Vanni, a 
news dealer, for vending foreign anti-clerical papers. Up to 
this time, the courts have not indulged in the necessary judicial 
legislation to make the indefinable statutory epithets cover cases 
of mere theologic heresy. However, judging by the progress 
being made, and the increasing case with which postal au- 
thorities and court*, by usurped power, interpolate into such 
uncertain statutes iheir own ex post facto criteria of unmail- 
ability and guilt, the time is not far off when the just stated 
hope of the N, Y. "Society for the Suppression of Vice" will 
be a reatited fact. Thus, without "blasphemy" in the Statute, 
the persecutors of unpopular opinion^, will acccmplish all the 
inequity formerly achieved by the laws against blasphemy. 

WtOM "OBSCSNE BLA5PHE«y" TO "BLASPHEMOUS OUSCENITY." 
I have shown that at Common Law "obscenity." mtrety as 

Mrvvncnl 'if (he .^norrry nt Ihc Ctminionihetllh in Ihv Irisli nt Abnrr Itnofr 
W, 
p. 7 nf in ttefKin tat fHiU y«M. 

45 



-»&*:■ 



Dnj lJIt.-i! Uy O 



oo^Ic 




OBSCKNE LITEKATUBE AKD CONSTITUTIONAI. LAW. 

tuth, was not an offense. However, there was a kind of blas- 
phemy which was disttngiiished from other $or1s of blasphemy 
by the adjective "obucene."* "Obscene blasphemy," as known 
at Common Law. seems, under the determining influence of 
Puritanism, to have evolved into the notion that all heresy as 
to sex-morals and ideals was in itself a blasphemy. With the 
growth of religious liberality, and the consequent odiousncss 
of prosecutions for "bUsphcmy", there came a change of name, 
and a modification of sentiment, which resulted in the &rst 
penalization of all "obscenity" merely as such, and, as in all 
blai^pbemy laws, the creation of psycholc^c crimes, by making 
the penalty attach without proof of actual injury, or the im- 
minent danger thereof according to any knmi'n laws of our 
physical universe. Unfortunately, these statutes never furnish 
the criteria of guilt, but leave that to the whim, caprice and 
"moral" idiosyncracy of jwlges and jurors, and this in spite of 
our constitutional guarantee of "due process of law." 

The earliest "obscenity" prosecutions to attract widespread 
attention were for the sale of "Cupid's Yokes." Tliis pamphlet, 
although not written with an eye single to politeness of style, 
yet manifestly is a serious and bona fide attempt to discuss the 
diflkult sociologic problem of sex. and evidences more thought 
and study in its preparation than is usual in such productions. 
The author was an Infidel, and the vendors of it were most 
often persons who. having seen the utililj' of encouraging 
heresy in matters of theology, were willing also to encourage 
a dissent from religious sex-morals. So these culprits were 
apt to be Infidels, as also were those who were willing to de- 
fend the right of men to advocate even disappro\'cd sex-heresy. 
The doctrines advocated in this pamphlet were similar to those 
quoted in the foregoing comment on the Kneeland blasphemy 
case. The chief of our moralists for revenue called it "blas- 
phemous obscenity." 

To the tmreflccting crowd the difference between "obscene 
blasphemy" and "blasphemous obscenity" is not very great, and 
to our sex-worshiping moral sentimentalists there is no dif- 
ference at all. To the latter, all frank discussion of sex is 
blasphemy because it unveils their sacred idol, and all other 
blasphemy is immoral chiefly because it tends to discredit the 
divine guarantee of their a priori sex-morality. Thoughtful 
persons saw in all this a new departure. Formerly the criterion 
of guilt was theologic heresy while now there was to be an 

•Altamy L»m lourwt. Mar. I«0;. 

46 



L'Hjl 




,::.!.V^tOOV^IC 



CTIOLOUV AND RKVELOPMBIfT OP OUR CEKSOBSHIP. 

cxtenMon of tlie censorship into purely aocJologic realms which 
once had been recognized as secular dortuiini. beyond the 
province of Religio-State control. 

ON TBE SIANUFACTURE OF l>KECEOE.NTS. 

Before proceeding to the exposition of the evolutionary 
process and achievements of our censorship, I think it well to 
indicate how desiKninji men can manufacture judicial prece- 
dents gradually enlarging a dangerous undefined power. Those 
who practise a lucrative morality, by refifulating the intellectual 
food-supply of others, are much more far-seeing than the 
friends of freedom, and in their manufacture of precedents 
oar moralists for revenue exercise a considerable ingenuity. 
If a book they wish to suppress i» pnhti^lied by an influential 
firm, they may think it unwise to attack the publisher, hut go 
after some obscure or unpopular and impecunious retailer of 
the book. If he shows figlit and the book is one which might 
find many friends to champion it. the culprit is invited to plead 
guilty and pay a nominal Rne. Usually he is quite wiUing to 
assist in establishing a pernicious precedent if only it saves his 
purse. By citing precedents thus manufactured, others are 
cowed into submission, and courts are finally lead to adopt 
ihem in extension of the censorship. In a recent case an em- 
pktyee was arrested for distributing an alleged "obscene" pam- 
phlet. A nominal fine was suggested if he would plead guilty. 
Upon refusing to accept the offer, his employer was threatened 
with arresL Still refusing, the court held the pamphlet no 
violation of the law. At other times, when, in all probability, 
indictment and conviction cannot be had. appeal is made to the 
Postal Department to exercise its power, made arbitrary by un- 
certainty of the statute, to refuse the transmission of the 
offending book, and all advertisements of it. If the courts are 
resorted to, ihcy deny relief because the same statutory un- 
certainty makes it impos-sible to say that the postal authorities 
have abused their discretion, which discretion, however, is con- 
ferred only by implications arising from the sanw uncertainty 
of the same statute. Thus are our liberties frittered away by 
pt«ce-meal construction. Then. too. our professional purists 
often are ver>" wise in the choice of jurisdiction in which they 
seek to make a precedent. They soon learn that some judges 
will construe books to be criminal which other judges, perhaps 



47 



Dn;niy;itiy' 



.OOi^lC 



F 



OBSCENE LITERATURE AND CONSIlTinflOMAL LAW. 

more dtan-mindcd, would probably hold to be no virfation of 
this uncertain sUtute. We all know where they would seek 
to create tlieir precedent. Because these statutes do not furnish 
the criteria of guilt, all this is possible and easy. The public 
must be content with dogmatism and question-begging epi- 
thets. No one dares republish the "obscene" matter, even for 
the purpose of convincing the voting public that the law which 
condemned it should be repealed. 

"SECUAL HYGIENE," 

The chief force behind these "obscenity" laws is the waning 
influence of the ascetic ideal. Very generally. Christians had 
accepted the views of Origen and St. Hieronymos that 
"Marriage is always a vice; all we can do is to excuse and to 
cleanse it." Quite logically it followed from such premises that 
to produce the most vir^'ns and Christian soldiers should 
come to be estimated as the least offensive life for those who 
claimed a "sacramental authority to live unchaste." Of course, 
to such minds the artificial sterilization of marriage was the 
greatest possible offense and akin to blasphemy, in that it was 
the frustration of the "divine plan." 

As the ascetic ideal was losing its influence over sane minds 
its apostles most naturally resorted to , the usual legalized 
violence to enforce it upon the increasing number inclined to 
repudiate it. Sometimes an effort was made to stretch the 
Common-law crime of "obscene blasphemy" so as to provide 
punishment for those who disseminated information as to the 
prevention of conception. Later, when the "fAscenity" statutes 
had hccn passed, it was contended that such information 
was "obscene." Courts and juries did not always lend them- 
selves to the enforcement of this view. Then our moralists 
for revenue secured statutes which specifically penalized such 
information. 

A most practical hook for physicians and intelligent lay- 
men is entitled. "Sexual Hygiene, Compiled from Books, 
Articles, and Documents. Many not Heretofore Published, by 
the Editorial Staff of ."' Both sides of manv contro- 
verted questions are presented. Among other things, there 
\t a short chapter discussing methods for the prevention of 

*1 Wkrd hf th<> •unmnion i|uit« KCidfRiilly. Tbi mbKiker* <1ecljn*d l« 
Nml*h iny (nfnnnaliHi and r«r(if*tcil (kw I At no) iiKaii«n •■, ThU initudc. 
■hieh it -mj gmtni •mnnc tnihliahrr*. nkhn it slnoM Impaatihh la find enl 

4& 




L'lij Itii-ittiy 



ooi^ie 



mOljOGY AND DKVeLOfMSNT Of OUR CENSOHSIIir. 

conce^ion. This book was recently suppressed by threat of 
prosecution, and doubtless because it was "obscene," if al- 
lowed to get into the hands of laymen, as well as because of 
its discussion of preventives. So it has come to this that it 
is a crin^e to assist in preventing the prolific propagation of 
the unfit, and, so far as the law can promote such ends, we 
have compulsory breeding, breeding enforced by statute. This, 
too, in a land where it is declared that the maimainance of 
liberty is the end of government. 

FSOM BAWDRV PICTURES TO NUDITT IN ART AND SEXUAL 
ANATOMY. 

In the beginning it seems as though people thought that 
only bawdry portrayals were to be suppressed. "Fillhy" was 
the characteriiralion of Congressman Merriam when in 1873 
he made a statement in favor of the suppression of the "ob- 
scene," Such (juestion -begging epithets of course preclude a 
thoughtless public from the weighing of human liberty against 
moral sentimental) sm, or of considering the evolution of prec- 
edents, or even aslcing for statutory critera of guilt. A dull 
and unconcerned populace did not see that the precedents 
whkfa they applauded would lead to the suppression of all 
audity in art, and ultimately to the suppression of all contra- 
diction of tlic theology of sex. The transition was swift from 
suppressing what di^gu$ted most people to the suppression of 
that which could offend only the extreme ascetic, or prude. 
Boston banished its bronze Bacchante. A copy of "The 
Triumph of Charles V." by Hans Makart. was ordered out 
of the window of a New York candy-store. A Fifth Avenue 
art dealer had to conceal a landscape portraying some children 
discreetly walking away from the bclioldcrs. That the.<e 
pictures had the saving grace of high art did not protect their 
owners, and these owners, not caring to indulge in the ex- 
pense of defending human liberty, succumbed to the threat. 

Emboldened by similar successes, the Art Students League 
catalogue was attacked because of its drawings of nude men. 
Wa'ihington postal authorities had declared it mailable, so an 
arrest was made under State laws. The defendant was in- 
duced to plead guilty on assurance that no apprccinhle penally 
would be inflicted. This aLso was cheaper than to defend 
himian rights, and thus the seemings of another judicial prec- 
edent were established, IIowe\'er. this doubtful victory and 
the great publicity given it did not yet give courage for at- 

49 



Disliien cy ' 



ISE LITKRATURe AND CONSTITUTIONAL t^W. 

tacking a popular magazine which soon after adornml iu title 
page with the posterior view of nude children. The result 
might have been different liad it been a periodical more gen- 
erally disapproved, or which had previously and for other 
reasons excited official condemnation. 

From art to literature was not a far reach. First of course 
the censors suppressed the purely bawdry literature, as for 
example, "Fanny Hill" and "Memoirs of a Woman of Pleas- 
ure," Thence the extension to "Tlie Yoke" and "Three 
Weeks" ; Zola, floccaccio an<l Rabelais also have been attacked 
with varying success, and even lately a woman was arrested in 
New Jersey for sending to her husband, by mail, a copy of 
Burn's "Merry Muses." In New York a woman, having 
qarrclcd with her husband, had him arrested for having mailed 
her -a lascivious letter. Tolstoi',* "Kreuizer Sonata" was sup- 
pressed by Postmaster (iencral VVanamaker. Bills have al- 
ready been introduced to penalize advertisements of liquors 
and cigarettes, and descriptions of drinking and smoking 
scenes. Soon wc will have a literature that is not only sexless 
but also drinkless and smokeless. But what gooil will have 
come to humanity when all this is achieved? Will sexual and 
other irregularities really cease in fact because they cannot 
openly exist in type? Will justice be more certain and liberty 
more secure? 

Dr. R. W. Shufeldt. Major U. S. .Irmy (retired), is 
intemalionally one of the best known among American Scien- 
tists. He has published a number of books and over i,loo 
essays making many valuable contributions of original re- 
search and of great scientific value. One of his latest is a 
handsome volume, which in the cheapest edition sells for 
$15.00. and is entitled "Studies of the Human Form." 

The author says: "The aim in writing it has been to make 
a contribution to the subject which may prove to be of use 
lo students of art; to professional artists and sculptors; to 
craftsman requiring a knowledge of the human figure; to 
medical men of all classes " * ' ; and finally lo quicken the 
cause for the good of the national and individual morals and 
ethics of the race, to the death of all prudery, superstition, 
and vice." 

This last was the unpardonable sin. to those of whom it 
may be said: Unto the lewd all is lewd. Although the book 
had received the highest praise from many scientists and 



5P 



Diaii^eacv 



.oogic 



ETIcaoCY AND ORVKLOPUENT OP OUR CKNSOXSHIP. 

artists, one of our moralists for revenue, anned with the 
authority of a postal inspector, threatened the puMishers with 
immediate arreM unlc&s ihcy would suppress the entire cdi- 
tiotL They promised, but at the same lime began preparing 
for an appeal to those higher up in ihe Postal Department. 
As a rcsu]t, the inspector's decision was reversed, with a 
string on the reversal. The postal authorities prescribed 
hmitations as to the manner of sale and persons to whom 
alone the sales are to be made None of these limitations 
is found in, nor derived from, the Statutes, but the officials 
decided that, so long as the dcparimenul legislation is com- 
plied with, the book is not "obscene" and its transmission 
throu^ the mail wouhl not be prosecuted as a crime. Always 
remember that this did not occur in Russia but in the United 
Slates, where it is thought that the Constitution vests all 
Federal legislative power in the Congress of the United States, 
where alone the criteria of guilt and legal rights should be 
defined, fiowever, the postal authorities at Washington, in 
Ihe light of what they might have done, are to be prai*ed for 
allowing us at least this much liberty. 

The purists" battle against all nude in art is not wholly 
won. However, our postal laws have just been amended by 
adding the indefinable epithet "filthy" to the description of 
what is non-mailablc. No doubt this additional statutory 
vagueness will accomplish much in the prepress of tyranny 
over literature and art. It can mean anything or nothing ac- 
cording to the tastes of the postal censor. 

Having desired to suppress bawdry pictures, and the nude 
in 1^'timalc art. it became necessary that courts and moralists 
for revenue should lepslate into existancc criteria of "ob- 
scenity" adequate to accomplish the ends. Again, the judtdal 
legislation thus brought into existence was capable of applica- 
tion to books with illustrations of sexual anatomy, thus lead- 
ing up to a censorship over scientific sex-Uleralure. When 
the portrayal of all human nudity has been penalized, consist- 
ancy requires the suppression of all portrayals of sexual 
anatomy. Soon we may have the complete suppression of 
both. 

PRUDERV IN THE MRDICAI. PROPRSStON. 

In order properly to understand the growth of this new 
l^^tizcd prudery and its intrusion into other realm* of medical 
science, we must appreciate to the full the influence of past 
centuries of dominant ascetic ideals as evidenced by the 

51 



Dmi'iui! tjy V..-J 



00^ Ic 



OnSTRSK UTKRATURE AND CONSTITUTIONAL LAW. 




manifestations of prudery even in the medical profession. 
When we realize how much of it is to be found even there, 
we will belter appreciate the greater quamily to be found 
in the less educated and more sentimenial masses. 

Of course, the mere study of medicine, in and of itself. 
does not neces.*ar:ly relieve the physician of his superstitions, 
either professional, moral, or religious. Because of this, we 
find within the medical profession quite as much sentimental 
oppo.^ition to unpopular allegations of truth and approval of 
persecution for professional or other heresy as arc found else- 
where. 

At the meeting of the American Medical Association, held 
at Columbus in 189*>, a paper was read on the "The G>ticco- 
logic Consideration of the Sexual Act." by Denslow Lewis, 
M. D.. Profeswr of Gynecology in the Chieaco Polyclinic: 
President of the Attending Staff of the Cook County Hospital, 
Chicago; President of the Chicago Medical Examiners' As- 
sociation ; Vice President of the Illinois State Medical Society ; 
Ex-President of the Physicians* Club, of Chicago; Late Special 
Commissioner irom the Illinois State Board of Health and the 
Health Department of Chicago for the investigation of 
Municipal Sanitation in European Cities. Later Dr. Denslow 
Lewis was the Chairman of the section on Hygiene and 
Sanitary Science of the American Medical .\ssociaiion. I 
mention these things to show that Dr. Lewis was a man of 
prominence in his profession. The before-named paper wu 
discusse<l some, T>r. Howard Kelly of Baltimore, who as- 
sumed the role of chief advocate for mysterj- and ignorance, 
among other things, said: "I do not believe in the current 
teaching of the day, that is, talking freely about these things 
to children. •••••• Its discussion (before this association] 

is attended with more or less filth, and we bfsmirc/i ourselves 
by discussing it in publir." 

Later the article was denied publication in the Journal 
of the American Medical Association, where papers read at 
the national meeting ustmlly appear. The editor of that 
Journal, in a letter to Dr. Lewis refusing to publish the paper. 
SBid: "There is nothing in it fthe paper) that is not true and 
possfbly it ought to appear in the Journal, but with my person- 
al views in reference to this class of literature. 1 hardly think 
so." A member of the publication committee of the American 
Medica) Association, justifying his conduct in voting against 



5» 



L'H4ll-i\ 



.iv>v'viC 



ETIOLOUY AND DEVEU»PMKNT OK OUK CENSOKSHIP, 

the publication of Dr. Lewis" essay, said: "The pubhcation 
of the 4inicle will lay tlie Board of Trustees open to the 
charge of sending "obscene* matter through the mails."' 

At the next meeting of the Association, held at Atlantic 
City, Di. Lewis decided, if possible, to have the Association 
over-rule the publication committee. In order that members 
miifbi hixve an eiitighiened judgment as to (he character of the 
paper whose publication they were lo pass upon, Dr, Lewis 
had his address printed in pamphlet form and distributed 
among the members. After all sorts of interference with the 
distribution of the pamphlet, the matter finally came before 
a general lession of the Association. Dr. 1 loward Kelly slated 
that he hud remained over a day longer than f»e intended so 
he might take pan in the controversy to make sure that the 
pages of the Joumai were not "polluted'" by the publication 
of the essay in question. After a vociferous meeting; the com- 
mittee was sustained in its refusal to publish. Later on Dr. 
Lewis war. forced to resign his position as professor of 
Gynecology in the Cliicago Polyclinic, and Dr. Fernand 
Henrotin, *ho forced this result, asserted as a reason that 
Dr. Lewis action at the Atlantic City meeting had excited 
unfavorable comment. 

In 1901 at the St. Paul meeting of the American Medical 
Association, Dr. Lewis presented a paper before the section 
on Hygiene on the subject, "The Limitation of Venereal 
Diseases-" Although such conspiamus prudes as Dr. Howard 
Kelly consented to discuss the paper, it also was refused pub- 
lication in the ofKcial organ of the .Association.* [t was about 
this time th.it the American Public Health .A\sociation consid- 
ered Gonorrhea too loathsome to be tolerated for discussion. 

1 have it upon the authority of one of the most widely 
known scientists of .Xmcrica. that many medical journals hold 
substantially the same attitude toward the discussion of sexual 
topics. No wonder, then, that such periodicals deplore tfie 
physicians' ignorance of sexual science, and the consequent 
unprcvented, but preventable, social ills.' With such supersti- 
tion and prudery even in tlie Medical profession, it is not 
strange that the populace should protest but little because of 
facts presently to be recited. Fsrtlier on I shall quote some- 
thing showing the attitude of medical editors toward sex- 
disaission. 

JTIE RVOLl'TION TOWARD MRDICAL. OOOKS. 

Besides its prudes, the medical profession has its regular 

'It «■> iiilMduenlly publlihtil Iti ili« Mediet-Lrtal /a»nial [ar Jum and S«p- 
Matn. IWJ. Fw tiduf <r1 f*cli. irr p,r Uwl. loan, ahout inf. 
'itt Am. ttur, ti CItnnI Meiicint. Janaarr. \9(». ;i. 1H. 

53 



Dn;ij:t.-i!t;v' 



■ 



OBSCKNK LITBKATUtE AND C0NSTITUT10H> 

quota of "moral" snobs. As tlie result, many physicians, and 
nearly all hospitaU. refuse to ircat vcncrtal diseases. .As a 
necessary consequence of this silly senttnientalism. those who 
are willing to treat such cases are quite generally ostracized 
and called disagreeable names. Naturally, they adjust them- 
stlvcs by seeking greater finaJioial returns for ihcir efforts so 
as to compensate them for the odium the>- invite. So through 
the prudery of some, we develop out of others the "lost man- 
hood" specialist. Judged by any code of rational ethics, much 
of the advertising of venereal specialists is perfectly legitimate. 
Of course, it is not to be exi>ected tliat "professionl ethics" is 
rational, and to emphasire the fact that it has nothing to do 
with ethical science it assumes a distinctive qualifying name. 
just as "Qirislian Science." by the qualification attached to 
"science," announces that it bears no necessary relation to 
any real science. So it comes that physicians indiscriminately 
call all advertising doctors bad names, and arc willing to 
invoke any bad law to punish a "bad" man. From such 
motives the obscenity laws have been frequently invoked 
against the man who advertises his profession in an unconven- 
tional way. and "regular" physicians have applauded the ef- 
fort because tliey lacked the foresight to see that the very 
precedents they were helping to establish would later be used 
to plague them. 

Quite a niunber of physicians have been arretted and 
convicted for sending through the mails information as to 
venereal diseases. One of these books, which serves as a type, 
has been thus described by a former assistant attorney -general 
of the post office department. He says the book "consisted 
mainly of a description of the causes and effects of venereal 
diseases, and secondly, two circulars, one of which described 
in separate paragraphs the symptome of various venereal 
diseases." That was held to he criminally "obscene." The 
courts, however, occasionally take a different view of it* 

Easy was the transition from this outlawing of the warfare 
against the venereal peril to the suppression of popular medi- 
cal books, which, though a little more "legitimate." also cut 
down the "regular" practitioners' earnings. The judicial legis- 
lation, creating criteria of guilt in one class of cases, was soom 
found applicable to the other. 

Having now exhibited the forces behind this legislation. 
and something of the evolutionary processes by which this 

ni«i«B *. u. s.. lit F*i Rtp. r«. 

54 



L'HjiiiWtUy 




ETIULOUy A.ND UUVtiLOrMBNT OP OUX CSN30IISHIP. 

modern censorship has developed, we will examine a little into 
its achievements. 

THE CASE UK UICKLIN. 

The first reported English ilt-cision*. whidi attempted to 
state a test of obscenity, was decided in 1868, and furnUhed the 
precedent for practically all American decisions. The facts 
were as follows: Hicklin, the accused, had sold a pamphlet 
entitled. "The Confessional Unmasked: Showing the De- 
pravity of the Romish Priesthood, the Iniquity of the Con- 
fessional, and the Questions put to Females in Confession," 
Tlie pamphlet consisted of extracts from Catholic theologians, 
one page giving the exact original Latin quotations and the ad- 
joining page furnishing a correct translation thereof. Much of 
the pamphlet admittedly was not at all obscene. It was not 
sold for gain, nor with any intention to deprave morality, but, 
as the defendant believed, to improve morality. It was sold 
by him as a member of the ""Protestant Electoral Union," 
formed "to protest against those teachings and practices which 
are im-English. immoral. »nd bhisphcmoiis, to maintain the 
Protestantism of the Hible and the liberty uf England. • * • To 
promote the return to Parliament of men who will assist ihem 
in lhe«e objects and particularly will expose and defeat the 
deep-laid machinations of the Jesuits, and resist grants of 
money for Romish piirposcs." 

Notwithstanding all these admitted facts the court held the 
pamphlet to be obscene and laid down this test : "Whether the 
tendency of the matter charged as obscenity is to deprave and 
corrupt those whose minds are open to such immoral influ- 
ences, and into whose hands a publication of this sort may 
fall." It will be observed that it was criminal, if in the hands 
of any one imaginary ]>erson it might be speculatively believed 
to be injurious, no matter how much it tended to improve the 
moraU of all the rest of mankind, nor how lofty were the mo- 
tives of those accused, nor how true was that which they wrote. 
Thus i.i slill the test of obscenity under our laws, and it has 
worked some results which could hardly have been in con- 
templation by our legislators in parsing our law.s against inde- 
cent literature. 

This proset'ution, altho' not designated blasphemy, was 
yet more nearly allied to that than is apparent on superficial 
view. The main purpase of the Ixwk was to discredit the 

•8e«. n. Micklin. U R. ■ Q, B. 1«0. 

55 



Ditriiiuy uy ' 



.OOJ^lC 




OBSCCA'E LITERATURE AND CONSTITUTIONAL LAW. 

Ur^st and most influential section of Christian pHcsis. In 
Gennany, where practically no attention is given lu "obscenity," 
merely as such, a novel entitled ■'The Sinful Bishop." wrilien 
by a Catholic priest, and which "in no sense offends morals," 
was suppressed. In New York City, though no attention is 
given to ordinarj- plays, yet, when "Mrs. Warren's Profession" 
presented a plot wherein a |irie>t in his boyhood hail fathered 
an illigiiimate child, that, in the opinion of Police Commissioner 
Bingham, made it "obscene." Mark you. bccauM it was a 
priest and tended to discredit clergymen and the church. No 
play in which non-clericals are guilty of illicit love ever ex- 
dled the police commissioner. In California a book substanti- 
all>' like that in the Hicklin case was also suppressed." 

THE MUSEUM OP ANATOMY. 

Connected with this subject of publicity about venereal 
infection, and its relation to purity. I shall presume to relate 
a personal experience. When a boy of 15 years, I left the pa- 
rental home to find work in Chicago. 

I soon discovered here a Museum of Anatomy conducted 
by one of those persons whom we contemptuously call 
"quacks." because they advertise their willingness to treat 
diseases which many compassionlcss nwral snobs in the medi- 
cal profession refuse to treat, which refusal results in so 
much suffering to the innocent. 

In this ^fuseum. for a trifling admission fee. I saw perfect 
imitations in wax of all the indescribable horrors consequent 
upon venereal infection. Of course the exhibition was ob- 
scene and indecent beyond description, but it was something 
more as well. It was an object lesson ginng ocular demon- 
stration of the terrible consequence of promiscuity and could 
not do otherwise than to inspire a wholesome fear of which 
I have not rid myself to this day. The vividness of the im- 
pression prodtKcd by one such sight would far surpass all 
the moral and religious sermons that could be preached from 
now till doomsday, because the innuendos or even the direct 
statements can mean nothiitg to the child-mind, before it is 
possessed of the experience which enaUes it to translate the 
words into corresiHmding mental pictures. 

Nowadays such museums are suppressed because of their 
obscenity. It is deserving of consideration whether such 
forces for good had not better be encouraged by their attach- 

■*PriM *■ U. 5., laa t;. 3. Ill, I b*l>tv> ■«• ihc OM. 

56 



I'li,!!.;!'; 



.CoogTc 



ETIUUUUy AND DEVELOPMENT OF OtJK CENSOBSHIP. 

men! to our public schools, in preference to iheir .suppression 
because jJiocking. 

stwatton's "the ssxual life." 

Recently a book agent was arrested in Boston for selling 
"obscence" literature. The following i* the title of the book 
which gave offense: "Ttif Sexual Life, tneludtng Anatomical 
Jlluslrations and Obstetric Observations, also a series of en- 
gravings ilhistratinif the Formation of Life, Growth of tht 
Embryo, Development of the Foetus, and the Casarean Opera- 
tion, by Prof. Bi'itjamin Franklin Slrallon. Sixth edition 
rrxfised and enlarged." 

A conviction was secured, perhaps made possible lai^ely by 
other associated charges. 

"claRk's M.^«itl.^ce guide." 
In MassacbuBctts one Jones was arrested for sending 
through the mails "Clark's Marriage Guide." It must already 
be apparent that under the laws in question no one can tell 
in advance what is or is not criminal, because no one can pre- 
determine what will be the opinion of a judge or jury upon 
the speculative problem of the book's psychological tendency 
upon gome hypothetical reader suffering from sexual hyper- 
aesthettcism. Unfortunately, Mr. Jones went for advice to a 
lawyer who must have been a good deal of a pnide, and who 
therefore advised his client to plead guilty, which he did. Later, 
when Judge Lowell was called upon to impose the sentence. 
he i» reponed a.i having said that the book "is not immoral 
or indeceni at all.*' and imposed only a very light line. In 
Chicago, tlie same book was suppressed by heavy fines ; aggre* 
gating over S5,ooaoo. 

"the lipk sexual," 
Edgar C. Beall. M.D.. wrote a little book entitled "The 
I-ife Sexual, a Study of the Philosophy. PhyiJology, Science, 
Art and Hygiene of Love." which was suppressed in igo6 by 
threat of prosecution. The book was written for the general 
reader and difTcrs from the ordinary "purity" book in that the 
theology of sex in supplante<I by a more enlightened view, and 
much very wholesome and needed advice, in spite of its slight 
clement of "phrenophysics." However, this had nothing to 
do with its "obscenity." I have read much of this book and 
can not for the life of me conceive why it should W deemed 
offensive, because the book is written in a refined style and is 



57 



Disteency ' 



.uo^lc 



OKSCHNH UTIUATURE AND CONSTITUTIONAL LAW. 

instniciive. The opening chapter is ilcvotcd to s strong 
criticis-m of "The Ban ui)Oin Sexual Science," and maybe 
therein lies tlie came of cuniplaint. Another explanation was 
offered by a minor official, and it was that thi:i malter. coming 
to the attention of the post office department immediately after 
the suppression of I'rofcssor Malcliow's book, the similarity of 
title suggested a necessary similarity in trealntcnt of the sub- 
ject and therefore a like "obscenity." 

"vicr: its fkiends and its foes"; "up-to-date fables." 
In a letter dated Nov. 15, 1907, sn assistant Attorney 
General of the U. S.. who really is tlie master of our intel- 
lectual food supply, pronounced a magazine unmailable for 
advertising "Vice: Ili Friends and its Foes." and "Up-to-Datc 
Fables." of which he says — "both of which, from the table 
of contents set forth in each advcrtiscmenl, arc obscene, lewd, 
lascivious, or indecent." The first of these booklets 1 have 
seen and in the main it is an attack on Comstockery, and an 
argument for sexual intelligence. Even Mr. Comslwk would 
not have found this booklet to be obscene, though of course 
he would disagree with its conclusions. Tlie tabic of contents 
is loo long to reproduce here, but I will rqmxluce the table 
of contents of the "Up-to-Date Fables" just to show how little 
information is necessary to discover "obscenity" when one 
has a "pure" mind. Here it is: "Contents: the Male .\mazon.«, 
The Strassburg Geese, Bread Eaten in Secret, The One Tune. 
A Tale about Noses. The Women and the Wells, Mrs. 
Grundy's Two Boarding Schools, The Fimancipaled Horses." 
Now, then, from that, and that alone, a pee-wce clerk in the 
government employ is able to <lecide and does decide, thai this 
booklet is degrading to our morals, an advertisement telling 
us where it may be had is nnmailable, and to send any of 
these through the mails entitles the sender to five years in jtUI. 

CRADDOCK ANDSTOCKHAM CASKS. 

As illustrating how our fears are often hut the product 
of ignorance, I am going to relate to you how and why T 
changed my mind about two booklets pronounced "the most 
obscene" that ever came to the criminal courl. If these really 
are the most offensive of condemned literature then I am pre- 
pared to stand all the rest. Both were entitled "The Wedding 
Night." and dealt with their subject in a very detailed manner, 
One was by an unfommate woman named Ida Craddock. who 

58 



Dlcl'iMCyV^J* 



ETlOtJSCY AND DEVELOPMENT OK OUR CENSOKSUIP. 

Styled hendf a "purity lecturer." Mr. Comstock denounctd 
her book as "the sckacc of seduction." It could have been 
more accurately described as advice for the bc*l means of con- 
summating the marriage. The judge who dmounced the au- 
thor called it "indescribably ofecene." To one who, from 
diseased .sex-sentiveness, is incapable of reading a discussion 
of sex functioning with the same equanimity as would ac- 
company a discussion of lung functioning, or to one who 
would apply the absurd judicial "tests" of obscenity, this 
booklet must appear just as these men described it. Of course 
she was found guilty. Later she committed suicide to escape 
the penalty of the law. 

For the book Mrs. Craddock claimed lo have the endorse- 
ment of several prominent mem1>crs of the Woman's Chris- 
dan Temperance Union, and published a letter from the Rev. 
W. S. Rainsford. the very distinguished rector of the fash- 
ionable St, George's Epi.scopal Church of New York City, in 
which he .■'aid: "Tliis much I will say, I am sure if all young 
people read carefully 'The Wedding Night,' much misery, sor- 
row, and disappointment could be avoided." 

The other booklet was by Dr. Alice Stoekham, the well 
known author of Tokology and similar books, and in name 
and substance, I believe, it was very much like the CraiJdock 
book. A Post-Office Inspector pronounced it the most obwene 
book he had ever read. She was convicted and heavily fined, 
though with many friends she vigorously defended the pro- 
priety and neecssity for her booklet of instructions. Of course 
neither of these books nor any like them are now anywhere 
to be had. 

71ie question is what good could be done by such books, 
so unquestionably obscene if judged by present judicial stand- 
ards? I confess thai when first I heard of these cases I knew 
of no excuse for the existence of this unplea.tant literature. 

I had read in medical literature statements like this: "The 
shock and suffering endured by the vounR wife, in the nup- 
tial bed. is too frequently prolonged into aflcr-life, and may 
seriously mar the connubial bliss."" Such generalizations, 
however, meant nothing to me until a strange set of circum- 
stances came to my notice, which I will relate to you in the 
order of their occurrence. 

Not long .since I learned of the marriage of persons in a 

"Th* SeiiiU Lilt, PL l»T. 

59 



Dn;ii;t--;itiy' 



iooglc 



oasCKNK LITRILVTURE AND CONSTITUTIONAL LAW. 



f 



I 



moat <:o<nservative social set. Tlie couple had been chums 
since chiUthoott anO engaged lovers for many years. After 
this long waiting, came the joyously anlicipatcd wedding, 
and the bride was the ideal picttire of radiant love. The day 
after her marriage she acted strangely, and by evening her 
husband and relatives concluded that her reason had been de- 
liiruncd, and ever since she \a» been confined in a sanitarium. 
Through her incoherent speech, only one tiling is sure 3n<l con- 
stant, and that is tliat slie never again wants to see her hus- 
band. More information is not given to tltc conservative circle 
of her friends. .Ml profess igtwrancc as to tlie immediate 
cause of this strange mania, which reverses tlic ambition, hope, 
and love of a lifetime. 

Strangely enough, within two days after hearing this patD- 
ful story, a friend handed mc the Pacifif Medifol Journal, for 
Jantiar)-, 1906." Tlicrein I read the folluwin^ (aragraph* 
and to me tlie mystery had been solved. Now 1 thought I 
knew why one bride had her love turned to hate, her mind 
ruined, and why her relatives were so shamefacedly sJIent, 
lest «>nic should team a ujicful lesson from their afTliction. 

The material portion of the article reads as follows : "White 
upon this point ] would say that under the .so-called sanctity 
of the Christian marriage, untold thousands of ilte most brutal 
rapes have been perpetrated, more brutal and liendish indeed, 
than many a so-named criminal rape. So outrwjcoiis has been 
the defloration of many a young girl-wife by her husband, 
that she has been invalided and made unhappy for the balance 
of her natural life. There arc cases on record where so vio- 
lently has the act of cof>ulation been performed that the hjrmcn, 
being thick and but slightly perforated, death has followed 
its forcible rupture, and the nervous shock a-isodated with the 
infamous proceeding. Here the criminally ignorant young 
husband and the ravisher are at par. and no censure that the 
world can mete out to them can be too great.'* 

And now I thought T h.'id received new light im those 
strange and not infrequent accounts one reads in the news- 
papers of young women who commit suicide during their 
"honeymoon." 

Here another strange chance '.<d me upon Dr. Mary 
Walker's book, "Unmasked, or the Science of Immorality." 

"Article hv R- W. SbulHdi. M. D,. M>i« MedkalDcputacnt of O. 3. Arar, 
Ulc)TniM««o(lk«)lw]>(»-LcMlS(KlpCr o' M«wY<wk. 

6a 




Die"iyyuy 



OOJ^IC 



ETIOLOGY AND DEVBU>PMK>fT OF OUR CENSOBsmi". 

where [ read the following paragraph : "There are instances 
of barrenness, where the only cause has been the harshness 
of husbands on wedding nights. The nerves of the vagina 
were so sliocJced and partial!}' paralyzed tliat they never re- 
co^'ere<^l the magnetic power to foster the life of the sperma- 
tozoa until the conception was perfected." 

With this much I went lo a physician friend, and he 
promptly cuntinned all that had been said by the others and 
hande<I me "Hygiene of the Sexual Functions, a lecture d«- 
livere<l in the regular course at Jefferson Medical College of 
Philadelphia, by Tlieophilus Parvin. A. D.. M. D.. Professor 
of Obstetrics and Disea-se> of Women and Children." On 
page two I read the following: "Occasionally you read in the 
newspapers that the bride of a night or of a few days, or of 
a few weeks, has gone home to her parents, and never to re- 
turn to her husband: but there is a Giicago divorce conclu<l- 
ing the history. One of the most distinguishe<l French physi- 
cians. Bertillon. has recently said that every year, in France. 
be knows of thirty to forty application^^ for divorce wilhin the 
first year of marriage, and he has reason to believe that a 
majority of these are from the bnitalities of the husband in 
the first sexual intercourse." 

After reading these statements from highly reputable phy- 
sicians. I could no longer doubt that these "most obscene 
books ever publi^ed." were really most humanitarian efforts 
on the pan of those who perhaps had a wider knowledge than 
I possessed. If this is the worst, I am prepared to take 
chances on lesser "obscenity." 

"CONJUGIAL LOVE," 

The two books now about to be mentioned are not medical 
in any .sense, anrl yet mark a sort of transition slate 

ffd the more scientific discussion of scx-proWems. 

The heading is the title of one of the best known book* 
of that conspicuous philosopher and dreamer. F.manucI Swe- 
denborg. Of course this book was written about a century 
and a half ago. The Swedenborg Society of l^ndon was 
organized in 1810, since which time it has been promoting the 
circulation of the more important works of Swedenborg It 
is probable, therefore, that the English rendition of "Conjugial 
Love" lias been on the market for over half a century. In 
the year iQog. in the City of Philadelphia, a magi.strate judici- 
ally declared it to be obscene. Thus, again, not only was an 

61 



Dn;iJit.-i!t;v' 



.UOv^lC 



OBSCENB I.ITEJt.M'UItlI AND CONSTITUTIONAL LAW. 

"tducene" book suppreflsed, but aLso a heretical sect was dis- 
credited. " 

"love and its affinities." 

This is the title of a very interesting little book by Dr. 
George F. Builer, of Chicago, who is well known to the 
medical profession. 

In the preface, the author describes his effort as one to 
present "a physiological study of love and its relationship to 
phychical as well as physiological phenomena. • • • • • The 
grosser features of the sexual instinct, of itself ideally pui 
revolting as they may appear, have, therefore, not been) 
disguised. • • • • • The motive of the present monograph 
is an ascent from the lower to a higher, purer phase of pas- 
sion, an aspiration whose heavenward stmggle and stately 
floresence are the crown and glory of mortal love." 

And such a book by such a man cannot go through the 
mails, nor be so adverlised. because a postal clerk says it can't 
and is backed by a statute so uncertain that it neither affims 
nor contradicts his authority. 

It used to be thought that ours was not a bureaucracy and 
that, because of our Constitution, departmental legislation 
could never supersede congressional enactment. It was even 
judicially declared that all "is purely legislative which defines 
rights, permits things to be done or prohiWis the doing there- 
of."" But what docs a stupid public, or its official masters, 
care for such old judicial opinions as to constitutional rights, 
when these interfere with the masters' hist for power, and 
moral senttmenlalism? 

"purity" nooKS supprbssku. 

Recently a distinguished "purity" worker issued a whole- 
some little pamphlet entitled "Not a Toothache or a Bad Cold," 
which was suppressed by threat of arrest, though the Post- 
OfTice authorities had declared it mailable. 

"The Social Peril" is a book dealing with venereal infec- 
tion, and is by one of the best known professional moralists 
in America. Mr. Comstock threatened him with arrest for 
"obscenity." partly for a fifteen page quotation from a book 
by Rev. Henry Ward Beecher. The "Social Peril" is sup- 
pressed, through fear of a criminal prosecution, though other 
elements finally culminated to accompli^ih the same end. 

It seems part of the irony of fate that those who are more 

•Tht PubKc Mch. IS, IftlW. 

••U. & *. Ualhc*. IM Fed. Ktp. SOSi U. 5. v. Eaton, Ht U. S. MT. 

6a 



Dici'^e" cv 



KTtMJMA- AND liV.V&UOVU&Nr OF OUR CRNSOR.SKfP. 

or less consciousl)' fostering this absurd leg^islation in support 
of the ascetic idea), should be caught in their own tiaps. 
There are other examples of the same kind to which we will 
direct attention. 

"ntOM THB UAU.-ROOU TO UBLL." 
Thi» book has the endorsement of practically all opponents 
of dancing. It furnished the suggcstiuns fur llioiisand» of 
•ennons ; it had the commendation of innumerable clergymen, 
including several bishops: it went through the mails unchal- 
lenged for 13 years. A Chicago postal official now declares it 
criminally "obscene" and the book is suppressed. Again it is 
not a rule of general Uw w/hich makes (his book cnminBl. but 
the whim or caprice of a postal subordinate. 

"almost fourtken." 

In 1892, Dodd, Mead & Co.. [)iil>lislied a little book entitled 
"Almost Fourteen." written by Mortimer A. Warren, a public 
school teacher. Before publishing it, Mr. Mead ^ubmitlcd the 
manuscript to his wife and to the pastor of the Broadway 
Taliernacle, and of the Church of the Heavenly Rest, and to 
Dr. Lyman Abbott. .Ml these endorsed it.* aim and tone. 

After publication, there were of course prudes who criti- 
cised, but SHch papers as the Christian Union gave it a favor- 
able review. The Rev. L. A. Pope, llieii pastor of the Bap- 
tist church of Ncwburyporl. Masv.. placed the book in the 
Sunday School library of his church, and purchased a large 
number at a reduced price, selling them at cost, simply that 
the young might read and learn, so well flid he think of the 
book. In my own view it would be impossible to deal prop- 
erly with the subject of sex and do it in a more delicate, inof- 
fensive manner. 

No question was raised about the book until 1897. when 
Albert F. Hunt, of Ncwburyporl, Mass.. was arrested for sell- 
ing obscene literature. Mr, Hunt had made himself very un- 
popular as an aggressive reformer. He had attacked the police 
force, exhibited the iniquity of the city administration, ex- 
posed the sins of the city, such as the practice of taking nude 
photographs, the aggressions of the saloonkeepers, and exposed 
the owners of buildings leased for prostitution. He had many 
influential enemies. In this condition he seaired permission to 
rqniblish "Almost Fourteen" in his paper, was arrested, con- 
victed, and fined. 

63 



Dn;ii;uutiy' 



iooglc 



OBSCEXE LITEHATimE AMP CONSTITUTIONAL LAW. 

I have no doubt in my min<I that, juilged by the scientifical- 
ly absurd tests of obscenity as applied by the courts, this in- 
nocent boolc was criminal under the law a^inst obscene litera- 
ture, because i"> doubt somewhere there existed some sexually 
hypcracsthctic person into whose hands it might come, and in 
whose mind it might induce lewd thoiighl-t. The legislative 
"obsccnil)" takes no account of llic thousands who might be 
benefited by siich a book; it only asks if there may be (me 
so weak that it might injure him. 

After this conviction for circulating humanitarian litera- 
ture of a most useful kind, the author of this good book watt 
driwti from hts place as principal of the public schools, by the 
prudish bigotrj* of his fellow townsmen and employers. The 
book can now be had only with much of its most useful matter 
eliminated. \N*c need liberty of the press for persons like War- 
ren. Hunt, and Oodd. Mead & Co. 

Mas. CAIUCie NATION ARRESTED. 

Most of the literature intended to promote personal purity 
is so veiled in a fog of verbiape as to be utterly meaningless 
to the young, becauitc the)' lack the intelligence which alone 
could make it possible to translate the innuendoes into the men- 
tal pictures which the wonls are stipposed to symbolire. Re- 
cently Mrs. Carrie Nation in her paper publi.sl)cd some whole- 
some advice to small boj's. She used scientifically chaste Eng- 
lish and took the trouble to define the meaning of her words. 
She wrote so plainly that there was actually a possibility that 
boys mic:ht understand what she was trying to teach them. 
?he wrote with greater plainness than some of those books 
which have been adjudged criminally obscene. 

A warrant was issued for her in Oklahoma, for sending 
obscene matter through the mails. She being then in Texas 
on a lecture lour, was there arrested and taken to Dallas be- 
fore a U. S. Commissioner. Fortunately she found there a 
U. S. Attorney with some sense, who, though he did not ap- 
prove of her taste, consented to the discharge of the prisoner. 
Mrs. Nation is to be congratulated upon having discovered 
one spot in this country not dominated by the prurient prudery 
of New England and New York. Unfortunately none can know 
when and wliere another healthy-minded prosecutor will be 
found. However, the postal authorities, disagreeing with the 
courts, still exclude the article from the mails.'* 

■•Thf HMtkrt, Dec, 1»0«. 

64 




LUiiiii-iiuy 




STtOUXiY AM) DBVELOPMBNT OP OUR CKNSOKSUIT. 
THE BIBLB JUDICIALLY DBCLARSD OUSCSNE. 

One of the early American prosecutions of note was that 
of the distinguished eccentric. George Francis Train, in 1872. 
He was airesied for circulating obscenity, which it turned out 
consisted of quotations from the Bible. Train and his at- 
torneys sought to have him released upon the ground that the 
matter was not obscene, and demanded 3 decision on that issue. 
The prosecutor, in his perplexity, and in spite of the protest of 
tbe defendant, insisted that Train was insane. If the matter 
was not obscene, his mental condition was tmmatenal. because 
there was no crime. The court refused to discharge the pris- 
oner as one not having circulated obscenity, but directe<t the 
jur)-. against their own judgment, to find him not guilty, on the 
, ground of insanity, thus, by necessary implication, deciding the 
Bible to be criminally ohscene. 

Upon a hearing on a writ of habeas corpus. Train was ad- 
judged sane, and discharged. Thus an expressed decision on 
the obscenity of the Bible was evaded, though the unavoidable 
inference was for its criniitiidity. 

In his autobiography. Train informs us that a Cleveland 
paper was seized and ilcslroyed for republishing the same Bible 
quotations which had caused his arrest in New York. Here 
then was a direct adjudication that parts of the Bible are in- 
decent, and therefore unmailablc."* 

In 1895. John B. Wise of Clay Center. Kansas, was arrested 
for sending obscene matter through the mails which again con- 
sisted wholly of a quotation from the Bible. In the United 
States Court, after a contest, he was found guilty and fined. 

Just keep in mind a moment these court precedents where 
lions of the Bible have been judicially condemned as crini- 
atly obscene, whiU- [ connect it with another rule of law. 
The courts have often decided that a book to be obscene need 
not be obscene throughout, tlie whole of it, but if the book is 
obscene in any part it is an obscene hook, within the meaning 
of the statutes." 

You will see at once that mider the present laws and rely- 
ing wholly on precedents already established, juries of irre- 
ligious men could wholly suppress the cirailation of the Bible, 
and in some states the law.s would authorize its seizure and de- 
struction and all thfs because the words "Indecent and ob- 



■ninc I ihifli Tiiin mufi hr iclnrinc to iht (onvlctiMi of Jabi 
Inihliifcr of ibc Tokd« ^n, utA Utrr olhor (apart. 

"U. S. T. Bennett. 4 BUtchfonl RJia. P. C. Ke. USTI. 



A. Lan. 



6S 



Die ii;t.-u uy ' 



.ooi^le 



0B8CENK t-ITEHATURE AND CONSTITUTIONAL LAW. 

scene" arc not definable in qualities of a book or picture. In 
other words, all this ini<iuily is possible under present laws be- 
cause courts did not heed the maxim, now screntitically de- 
monstrable, viz.: "Unto the pure all things arc pure." 

Of course, tlic Old Testament in common with all book* that 
are valuable for moral instruction, contains many unpleasant 
recitals, hut thai is no reason for suppressing any of ihem. 
I prefer to put myself on the side of that English judge who 
said : "To say in general that the conduct of a dead person can 
at no time be canvassed; to hold tliai even after ages are 
passed tlic conduct of bad men cannot be contrasted with the 
good, would be to exclude the most useful part of history."" 

i therefore denounce this law because under it may be de- 
stroyed books containing records of human folly and error 
from which we may learn v.dualile lessons, tor avoiding the 
bliglit from violating nature's mora! laws. Under our present 
statutes some of the writings of the greatest hi^to^ian.s and 
literary masterpieces have been supi»ressed and practically all 
would be suppressed if the courts should apply to them im- 
partially the present judicial test of obscenity. 

SUPPRESSKD BE-X'.MISK NOT "ODSCENE." 

Every evil, real or imaginary, which we endeavor to avoid 
by wrong methods seern necessarily to involve other evils as 
a consequence. By suppressing all sex discussion wc make it 
impossible for people to satisfy their natural and healthy 
inquisiliveness. Thus we unintentionally promote morbid 
curiosity, in view of which those who are its victims become 
an easy prey to the wiles of the designing. I will illustrate 
by one concrete example. One of ilie s»i)pre»sei1 books of 
fiction which ha> been mudi discussed is called "Fanny Hill." 
Because it is believed to be extremely racy and because of 
the great risk in selling it the real "Fanny Hil!" commands 
from collectors a very fancy price ; copies have been reported 
sold for as high as forty ($4000) dollars. Knowing this, 
some unscrupulous book dealers will take any or<linary con- 
ventional novel, clothe it in a new cover and title page whid) 
will give it the name of "Fanny Hill." and thus sell it to the 
gullible seekers after pornography for from ten to twenty 
dollars. Of course the purchasers only fool themselves. It 
is not of sncli a case, however, that I am going to write, tho', 
manifestly, the postal authorities could not see the diflference 



>*IUx VI. Tonhtm, 4 T. R. US, 



66 



Disteeccy ' 



t^TlULOCr AKI) DBVBLOPMKNT Of OUB CENSORSHIF. 

between such a case as the one described and the following 
one. 

A publisher has been getting out a little series of pamphlets 
that cuntain well written and pleasing short stories, with not 
a MRgle improper suggestion, word or thought, even tho' judged 
by the most conservative of coiivenikinal standards. Tliere* 
fore, to attract attention and promote sales, catchy titles were 
given to these pamphlets ; some of the titles seem to have been 
chosen witli the view to inihice young peo|>lc to read what 
would give them some very wholesome, conventional and, I 
fear, necessary though commonplace, advice. The following 
arc (he titles of .*uch pamidilels: Advice To Vounff Husbands, 
Only A Boy, A Siege In Thf Dark, Only A Girl, A Young 
Girl's Book Of Experience, Eaten Alive and Sham Religion, 
Revelations Of A Model, A Country Boy's First \^ight's Ex- 
perienfe. History of Kissing, and The Confessions of Two 
Old Maids. Unto the lewd all things arc lewd. There are 
some people in official life, as well as out of it, to whom such 
titles as the foregoing could suggest nothing but lasciviousncss. 

Such minds are incapable of imagining non-sexual "Advice 
to Young Husbands," or non-sexual "Confessions of Two 
Old Maids." and solely because of their own degenerate condi- 
tion these titles would create anticipations of psj'cho-salacious 
joys. Ttui the fact remain'^ that the titles were as accurately 
descriptive of the contents of the books as book-titles usually 
are. Under these circumstances, no man learned in the law 
wtMild dream tliat these titles were a misrepresentation of es- 
Kntial fact such as would entitle the purcha.ser of a lot of 
these books to recover back the purchase price on the ground 
of fraud becaiisc the books were not in fact obscene. Al- 
though the book-litles in question do not amount to a repre- 
sentation that the contents are obscene, and altho* the contents 
were not in fact obscene, nor claimed by any one to be so. yet 
the Postal Dejiartment concluded that the excessively lewd, 
whose unreasonable sensual anticijuttons might be disap- 
pointed, must be protected againiit the misleading effects of 
these titles upon tlieir own psycho-sexual abnormity. Ac- 
cordingly, the authorities threatened to stop the vendor's mail 
by a fraud order if he did not cease selling these booklets. Of 
course he suppressed the books. If this is fraud then all the 
"purity" sex-books which are being sold by many professional 
moralists also are frauds. These books are all advertised to 

67 



Disteeacy' 



.Ot)^IC 



t 



OBSCENE LITERATURE AND CONSTITUTIOKAL LAW. 

help one s<dve his personal sex-problems, but very, very Mldom 
give the least bit oi enlightenment or assistance But we must 
not complain. Like the Kitig, the Postal Department can do 
no wrong. 

"history of IttOSTlTUTION." 

Dr. Sanger's "History of Prostitution" is one of tl>e best, 
if not Ihf most learned disquisition in the English languagv, 
which deals with that important probkm. It was first pub- 
lished in 185S. and in numerous editions has been on the ntar- 
ket ever sincf. 1 am advistd that it has been publicly en- 
dorsed even by an extremely puritanical postal inspector and 
has been widely advertised and sold through the "Purity" 
journals. No one ever dreamed that it was an obscene book 
until November 15th, 1907. when the post office authorities 
for sentimental reasons desired to suppress The American 
Journal of Eugenics and were looking for an excuse to give to 
(he editor and the public. R. M. Webster, ,\cting .Assistant 
Attorney General for the Post Office Department, on the dale 
last above given, wrote an opinion excluding said magazine 
from the mails, in part for advertising the hook under ilis- 
cussion. He wrote: "On page 50 is advertised a book en- 
titled "The Historj- of Prostitution,' which from its very namt 
is clearly indecent and unfit for circulation through the mail." 
Evidently he had not read the book, but simply decided that 
the subject was one. no matter how it was treated, which could 
not be discussed through the mail, and his arbitrary will and 
not statutory criteria determined the issue. Yet, some con- 
tinue to assert tliat ours is a government by law. The people 
may make — must make — laws upon the subject of prostitution, 
but cannot get enlightenment uix>n it. because their servant, 
a Government employee, says they cannot be entrusted with 
knowledge. 

DB. MALCHOW AND "tHE SE.XtJAL UFK." 

Connected with the Methodist Episcopal Church schools is 
Hamline University College of Physicians and Surgeons. C. 
W. Malchow was there the Professor of Proctology and .-Vs- 
sociate in Oinieal Medicine. He was also the President of 
the Physicians" and Surgeons' Club of Minneapolis, and a 
member of the Hennepin County Medical Society, the Minne- 
sota State Medical SocieQ-, and the American Medical Asso- 
ciation. 

68 



L'Hjii,;(\! :,v 'v.-'v'V'Xiv 



ETIUIjOUV ASt> IfKVel.tJI'MKNT Of Ot*R CENSORSHIP. 

He wrote a book on "The Sexual Life" which received 
stronR praise from educational and medical journaU and from 
pro fcivs tonal persons. I have seen commendatory reviews from 
(en professional magazines. While in pre.s», he read a most 
preplexing chapter from the book to a meeting of Methodist 
Miniilers and its delicate treatment of a difficult subject was 
strongly commended. 

Yet under the absurd tests prescribed by the couitA and in 
|iite of the protects of the Minneapolis Times and Tribune, 
r. Malchow and his publisher are (1907) both serving a jail 
sentence, for selling through the mail a high class scicntiik 
discussion of sex to the laity." 

During the trial the court refused the defendants the right 
to prove that all in the book was true, holding, with all the 
judicial decisions, that their being true was immaterial in fixing 
guilt. An unsuccessful effort was make to prove the need for 
such a book because of the great ignorance of the public upon 
ttx matters, and the "learned" judge remarked that he hoped 
it was true that the pubhc was igiiorant of such matters, and 
excluded the evidence. President Roosevelt being asked by 
members of Congress to pardon the convia because of the 
propriety of his book, is reponed to have expressed an amaz- 
ing regret that he could not prolong the sentence. 

This case received a httle attention in the medical journals, 
but, let it be said to their everlasting disgrace, the great medical 
organizations of this country were either lno indifferent or too 
prudish or too cowardly to come as an organized body to the 
rescue of Dr. Malchow or to demand a repeal or amendment 
of the law which tnade this outrage poiisible. 

OK. KIMK AND THE IOWA MKOICAL JOURNAL. 

A very few vears ago. Dr. Klme, the editor of the Iowa 
MedUal Journal, was convicted of obscenity. He was a phy- 
sician of high standing and a trustee of a medical college, in 
which a few yotmg rowdy students were apparently endeavor- 
ing to drive out the women students. .\ protest to the college 
authorities resulted only in a two weeks' suspension. On 
further complaint, instead of protecting ihe women in their 
equal right to study medicine under decent conditions, the 
authorities excluded women altc^ether from the medical school. 
Filled with indignation. Dr. Kimc reiterated his protest, and 
gave publicity to some of the methods of persecution, indud- 

-U. S. r, BvrMB. 1*2 F. S. 57. CCA. 

69 



Dn;ii;t.-titiy' 



.OOi^lC 



I 



■ 



OBSCENE LITERATURE AND CONSTITIFTIONAL LAW. 

iog an insulting prescription which appeared on the blackboard 
where all the class could see it. In his Medical Journal he 
wrote: "Wc had thought to withhold this prescription, owing 
to its extreme vulgarity, but we believe it our dutj- to show 
the condition exactly as it exists, and let each physician judge 
for himself as to the justness of the protest filed." Then fol- 
low-ed the "obscene " prescription, the obscenity of whidi con* 
nstetl wholly in the use of one word of double meaning. 

For this he was arrested, and although snpported by all 
four daily papers of liis home city, by the clergj- of all denom- 
inations, the presidents of the Y, M. C. A., the W. C. T. U.. 
and the Western Society for the Suppression of \''ice, and the 
Society for the Promotion of Social Purity, he was convicted, 
branded as a criminal and fined. Judged b)- the absurd judi- 
cial tests of obscenity which are always applied, the conviction 
was unquestionably correct. 

"studies in THE PSYCHOLOGY OF SKI." 

In England, under a law just like our own in its descrip- 
tion of what is prohibited. Dr. Havclock Ellis" "Studies in the 
Psychology of Sex." I belie\'e have been wholly suppressed as 
obscene. These studies are so exhaustive and collect so much 
original and unusual information that they mark an entirely 
new epoch in the study of sexual science. The German edi- 
tion of this very superior treatise is denied admission into the 
United States, to protect the moral* and peri>etuate the ig- 
norance of the German- American physicians. Futhermore, no 
one can doubt that their exclusion is in strict accord with the 
letter of the law. as Uie word "obscene" is now interpreted, 
or interpolated, tkraugk the judical "tests" of obscenity. 

That scientifically absurd test is decisive even though a[)- 
plied to a scholarly treatise upon sex. circulated only within 
the medical profession, for the statute makes no exception 
in favor of medical men. An impartial enforcement of the 
letter of the law. as the word "obscene" is now interpreted, 
would entirely extirpate the scientific literature of sex. So 
deeply have the judges been impressed with this possible in- 
iquity, that by dictum, quite in excess of their proper power. 
they have made a judicial amendment of the statute, excepting 
from its operation books circulated only among physicians. 
Such judicial legidation of course is made under the pretense 
of "statutory interpretation" and involves the ridiculous prop- 
osition that a book which is criminally obscene if handed to a 

70 



LU'ii;w:tiy 




oogic 



ETIOt-OGV AN1> DtCVKLUPHEST OF OITH CENSORSHIP. 

layman, changes ils character if handed to a physician. It as- 
sumes that a scientiJic knowledge o( sex is dangerous to the 
morals of all those who do not u»e the knowledge a.s a means 
of making money in the practice of medicine, and that it be 
comes a moral force, when, and only when, thus employed for 
pecuniary gain. To send to "purity workers" the standard 
scientific literature of sex is a crime. Even such persons can- 
not be trusted to have accurate information. Public morals 
demand their ignorance. The suppression of the American 
edition of "'Studies of the Psychology of Sex" only awaits 
the concurrence of caprice between some fool reformer and 
a stupid jury and judge. 'ITic same statutory words which 
furnished a conviction tn England, and here are adequate to 
exclude the Gennan edition, will sooner or later determine 
the suppression of the .^mcrican edition. 

Thus far we have exhibited a few of the matters which can 
be and have been suppressed under our present mysterious 
cfiminal law against "obscene" hteralurc. More will be said 
upon this matter when we come to study the relation of our 
compulsory sex-ignorance to insanity and when we come to 
study the varieties of official modesty. 

"HUMAN StUtUALlTV." 

An attempt was made to .»uppress another most useful 
t>ook. which bears this title page: "Human Sexuality — A 
Medico* Literary Treatise, on the Laws. .■Anomalies, and Rela- 
lions of Sex, with Especial Keferance to Contrary Sexual 
Desire. By J. Richardson Parke. Sc. B., Ph. G.. M. D.. late 
Acting Assistant Stirgeon, U. S. Army," In Aug.. 1909, in 
PliiL-kdelphia the author of this valuable book was arrested 
for having sent It through the mails. The book is a large 
volume of nearly 500 pages of useful scientific matter. It 
received very high praise from medical journals and prominent 
(diysicians. 

.^n author, writing upon the pathology of the lungs, may 
properly and advantageously lighten up his text by a few 
humorous anecdotes about the "one lungers." Dr. Parke thought 
he hail ;i similar privilege, allhough writing about sex. and 
because he related a few stories, such as he believed any 
physician might properly tell another, he furnished the official 
prudes a pretext for trying to put him in jail. He was arrest- 
ed and bound over to await the action of the Grand Jury. 
Fortunately, the matter %eems to have come before reasonably 



'AlUmr Lam JtunQl, Aug., IMS: FrMdoD ot lh( Pnm and 
UWruitn. 

71 



"Ob«ni>" 



Dn;lilt.-i!t;v' 



.ooi^le 



UfiSCENK LITERATUKE AND CUNSTITUTIOHAL LAW. 

sane jurors, who refused to tind an indictment. I'he dis- 
lingtiished author received much unpleasant nutoricty, was 
put IQ much personal inconvientence and expense, only to get 
a "vindication" which is not necessarily binding upon either 
the Post Office Department or any other Grand Jury, or 
Court, and all because ours has ceased to be a Government 
according to "Law." when it conies to determining what are 
the criteria of guilt if the question of "oWemiy" is involved. 

SUGGESTIONS OF THE DEPEW UOAKO OF BSALTQ 
Dr. George N. Jack is the Health I'iiysidan of the Board 
of Health for Dcpcw. Like many another more foolish person. 
Dr. Jack and the Board of Health tlioughl this a free country 
in which a man not intending to deceive but meaning to help 
mankind might proclaim that which he believed to be the 
truth, Accttrdingly, Dr. Jack prepare<l a paper which was 
read and adopted at a meeting of the Dcpcw fioard of Health, 
Feb. 3rd, 1909. This paper was published for free distribution 
under the title: '"Suggestions adopted by the Depew Board 
of Health for the i'rcvention of Sickness, Corruption, or 
Crime, and as an Evolutionary aid to Humanity." Of course, 
this paper dealt largely with sexual vices. Since unto the 
lewd all is lewd. Dr. Jack was promptly arrested for circu- 
lating "obscene" literature, through the mails. At the time 
of writing this his case has not been disposed of. 

piEU>-M(JSEUM IMPORTATIONS 

About April it, 1909, the newspapers announced that 
pictures and manuscripts collected in China by Professor Ber- 
thold Laufer of Columbia University, and for the Field Mu- 
seum of Chicago, had been seized by Collector of Customs 
Ames, because of their obscenity. It seems the seieure wis made 
in Oct. 1908. and the fact kept from the public. The news 
item conlinucs thus: "At that time, L'nited States District 
Judge Landis listened to arguments in chambers. It was 
admitted that tlie importation of tlie collection constituted 
a technical violation of the law, but it was likewise admitted 
that the collection formed an essential liasis for scientific 
investigation. Judge Landis stated that he had no doubt the 
photographs, paintings, manuscripts, etc.. were brought into 
this country for a perfectly proper purpose, but he saw no 
way, without a technical violation of the law, of releasing 
them." 

Subsequently the judge decided to permit the entry of 

7» 



Dnjii;t't:t;v 



.uo^lc 



ETlUUXiV AND bEVELOPMENT OP OUR CENSURSHIP. 

this valuable tmta^rial. Thus we have arrived at the stage 
where the dissemination of any of the material of sexual 
sdcncc is a crime, and tt is the (unclion of a Federal Judge, 
not to enforce the law impartially, but to say arbitrarily who 
shall go unscatlie(L 

It is so long ago that we have both forgotten and neglected 
the truth expressed by the l^cdcral Supreme Cotiri in these 
words: "ll would certainly be dangerous if the legislature 
could set a net large enough to catch all possible offenders 
and leave it to the courts to step inside and say who could be 
rightly detained, and who should be set at large. This would 
to iumc extent substitute the judicial for the legislative branch 
the government." " 

This then, is a partial record of useful things coming under 
the ban of our censorship of literature. Some other books as 
valuable as the best of those which have been herein men- 
tioned, I can not speak of. because the authors and pubUshcrs 
prefer that no mention should be made of the fact. The 
nxisi injurious part of this censorship, however, lies not in 
the things that have been suppressed, as against the vert- 
turesomc few who dare to take a chance on the censorship, 
but rather on the innumerable books tltat have remained un- 
written because modest and wise scientists do not care to 
spend their time in taking even a little chance of coming 
into conflict with an uncertain statute, arbitrarily administered 
by laymen to the medical profession, in which profession are 
many not over-wise and sometimes fanatical zealots in the 
interest of that ascetism which \s the crowning evil of the 
dieology of sex. 

■U. S. T. lla«M, 92 V. S. 291.331. 



73 



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.OOi^lC 




CHAPTER V. 

THE REASONS UNDERLYING OUR CONSTITUTION- 
AL GUARANTEE OF A FREE PRESS, APPLrED 
TO SEX-DISCUSSiON.' 

Argiiinents which deal with the inexpediency of abridging 
freedom of speech and of the press necessarily restate the 
considerations which moved the fraincrs of our constitutions 
to prohibit such abridgment and therefore exhibit to us that 
conception of freedom which they intended to perpetuate. 
It follows from this that all argument which concerns 
ilself with a consideration of the inexpediency of abridging 
intellectual freedom, unavoidably illuminates the whole 
problem of a judicial interpretation of our constitutional guar- 
sntee of an unabridged freedom of speech and of the press. 

Only 3 few decades ago, the mighty governed the many, 
through cunning, strateg>'. and compidsory ignorance. A lay 
citizen was punished by law. if he presumed critically to dis- 
cuss politics, officials, slave emancipation, astronomy, geology, 
or religion. To teach our African slaves to read, or to circu- 
late abolitionist literature, was in some States a crime, because 
such intelligence conduced to an "immoral tendency" toward 
insurrection. To have the Bible in one's possession has also 
been prohibited by law. because of the "immoral tendency" 
toward private judgments, which general reading of it might 
induce. 

One by one the advocates of mystery and blind force have 
surrendered to the angels of enlightenment, and every enlarge- 
ment of opportunity for knowle<!ge has been followed by the 
moral elevation of humanity. Only in one field of thought 
do we still habitually assume that ignorance is a virtue, and 
enlightenment a crime. Only upon the subject of sex do we 
by statute declare that artificial fear is a safer guitle than in- 
telligent self-reliance, that purity can thrive only in conceal- 

■ReniKd Iron Librral Ktvtrm, Ant. and Sept., I9QC. 

74 




L,«i,;«i;.v^TOOt^lc 



UNDGSLVIKa CONSTITUTIONAL CUAKANTee OP PREE PRESS. 

mtnt and ignorance, and that to know all of one's self is 
dangerous and immoral. Here only are we afraid to allo# 
truth to be contrasted with error. The issue is, shall we con- 
tinue thus to fear full and free discussion of sex facts and sex 
proWems? Docs the constitution permit the suppression of 
such discussion? Later this will be thoroughly ilisciissed. 

The first <iue.stion to be answered is, why discuss the sub- 
ject of sex at all ? There arc those who advise us to ignore it 
entirely, upon lh« theory that the natumi impulse is a suffi* 
cient guide. To tht^ it may be answered that all our sex activi- 
ties cannot be subjected to the constant and immediate con- 
trol of the will. We carmot ignore sex by merely willing to 
do so. (>jr attention is unavoida?>ly forced upon the sub- 
ject, by conditions both within and without ourselves. That 
we may deceive ourselves in this particular is possible ; that wc 
all can and many do lie alwut it is certain. 

Without sexual education, we cannot know whether we are 
acting under a heaUhy or a diseased impulse. It is known to 
the psychologist that many are guilty of vicious and injurious 
sexual practices, without being in the least conscious of the 
significance of what they arc doing. Everywhere wc see hu- 
man wrecks because of a failure to understand their impulses, 
or to impose intclhgent restraints upon them. Many become 
sexually impotent, hypcraeslhi-tic. or perverted by gradual proc- 
esses the meaning of which Ihcy do not understand, and whose 
baneful consequences intelligence would enable them to fore- 
see and easily avoid. Since individuals will not go to a phy- 
sician until the injury is accomplished ami apparent, it fol- 
lows that there is no possible preventive except general in- 
telligence upon the subject. At present the spread of that 
knowledge is impeded by laws and by a pnirient prudery, which 
together are responsible for the sentimental taboo which at- 
taches to the whole subject. The educated man of to-day 
measures our different degrees of human progress by the quan- 
tity of intelligence which is used in regidating our bodily func- 
tioning. No reason exists for making sex an exception. 

TIIK PIIVSICAL FOUNIUTION* FOR MOKAL IIRALXn. 
To those who accept a scientific ethics, moral health is 
mcasure<l by the relative degree to which their conduct achieves 
physical and mental health for the race. To the religious mora- 
list, who his other ends in view, pathologic sexuality is prob- 
ably the greatest impediment to the practical realization of his 

75 



DmiJIt-'iiuy' 



.oogle 




OaSCEKIf LITEHATURE AND CONSTITUTIONAL LAW. 

ideal of sexual morality. Everywhere we see tliat disease is 
the greatest obstacle to moral health. From cither point of 
view, it follow.s that one of ihe most important considerations 
in all purity propaganda must be the diffusion of tucli knowl- 
edge as will be-st conduce to the highest physical and mental 
perfection. This seems so self evident that we necessarily ask. 
Why is our conduct so contrary? 

The Desire to Persecute. 

The desire to persecute, even for mere opinion's sake, seems 
to be an eternal inheritance of humans. We naturally and as a 
matter of course encourage others in doing and believing what- 
ever for any reason, or without reason, we deem proper. Even 
though we have a mind fairly well disciplined in the duty of 
toleration, we quite naturally discourage others, and feci a 
sense of outraged propriety, whenever they believe and act 
in a manner radically different from ourselves. Our resent- 
ment becomes vehement just in proportion as our reason is 
impotent, and our nerves diseasedly sensitive. That is why it 
is said that "Man is naturally, instinctively intolerant and a 
persecutor." 

From this necessity of our undisciplined nature comes the 
stealthy but inevitable recurrence of legalized bigotry, and its 
rehabilitation of successive inquisitions. From the days of 
pagan antiquity to the present hour, there has never been a 
time or country wherein mankind could claim immuni^ from 
all persecution for intellectual differences. This cruel intoler- 
ance has always appealed to a "sacred and patriotic duty," and 
masked behind an ignorantly made and unwarranted pretense 
of "morality." 

"Persecution has not been the outgrowth of any one age, 
nationality or creed; it has been the ill-favored progeny of 
all," Thus, under the disguise of new names and new preten- 
sions, again and again we punish unpopular, though wholly 
self -regarding, non-moral conduct; imprison men for express- 
ing honest intellectual differences; deny the duty of toleration; 
destroy a proper liberty of thought and conduct ; and always 
under the same old false pretenses of "morality." and "law 
and order." i 

Whenever our natural tendency toward intolerance is re- 
inforced by abnormally intense feeling:*, such as diseased 
nerves produce, persecution follows quite unavoidably, because 

76 



Dicl«ency' 




UHDnLVlKC CONSTITUTIONAL CUARANTBS OP FREE PRRSS. 

Ih* intensity of associated emotions is transformed into a con- 
f viction of inerrancy. Such a victim of diseased emotions, even 
more than others, "knows becatise he fccls. and is firmly con- 
vinced because strongly a^tated." Unable to answer logic- 
slly the contention of his friend, he ends by desiring to punish 
him as his enemy. Because of the close interdependence of 
the emotional and the generative mechanism, it is probable 
that unreasoned moral sentimentalizing inducing superstitious 
opinions about the relation of men and women will be the last 
superstition to diuppcar. 

The concurrence of many in like emotions, associated with 
»nd centered upon the same focus of irritation, makes the 
effective majorily of the state view the toleration of intel- 
lectual opponents as a crime, and their heresy, whether politi- 
cal, religious, ethical or sexual, is denoimccd as a danger to 
civil order, and the heretic must be judicially silenced. Thus 
all bigots have reasoned in all past ages. Thus do those af- 
flicted with our present >ex-.siiper»titi('n ngain defend their 
moral censorship of literature and art. 

These arc the processes by which we alway* become in- 
capable of deriving profit from the lessons of history. That 
an the greatest mind.4 of e\'ery a^e believed in something now 
known to be false, and in the utility of what is now deemed 
Injurious or immor;il, never sitggeMs to peit>- intellects that 
the future generations will also pity us for having entertained 
our most cherished opinions. 

The presence of these designated natural defects, which 
so very few have outgrown, makes il quite probable that the 
battle for intellectual freedom will never reach an end, Tlie 
few. trained in the duly of toleration, owe tl to humanity to 
re-state, with great frequency, the arguments for mental hos- 
pitality. Only by this process can we contribute directly to- 
ward the mental discipline of the relatively uncvolved masses, 
and prepare the way for those new and therefore unpopular 
truths by which the race will progress. The absolute liberty of 
tbought, with opportunity, unlimited as between adults, for 
Its oral or printed expression is a condition preceilent to the 
bluest dcvekipment of our progressive morality. 

Men of strong passions and weak intellects seldom see the 
expediency of encouraging others to disagree. Thence came 
all of those terrible persecutions for heresy, witchcraft, sedi- 
tion, etc., which have prolonged the midnight of superstition 



■n 



Dic'ijyytiy' 



.ooi^le 



I 



OBSCENE UTEJlATUItE AMD CONSTITUTIONAL LAW. 

into "dark ages." The passionate zeal of a masterful few has 
always made tliem a»>'Umc iliat ihey only could be trusted (o 
have a perianal judgment upon moral questions, while all 
others must be coerced, unquestioningly. to accept them upon 
authority, "with pious awe and trembling solicitude." 

The Da.\oe((.s of Priv.mk JirxiMRNi. 

Such c^mania always resulted in the persecution of those 
who furnished the common people with the materials upon 
whidi they might base a different opinion, or outgrow their 
slave- virtues. 

One of Queen Mary's first acts was an inhibition against 
reading or teaching the Bible in churches, and against printing 
books. In 1530. tlic king, [uirsuant to a memorial of the House 
of Commons, issued a proclamation requiring every person 
"which hath a New Testament or tlic Old, translated into 
English or any other boke of Holy Scripture, so translated, 
being in prime, lo surrender ihem williin fifteen days, as' 
he will avoyde the Kynge's high indignation and displeas- 
ure," which meant death. 

Another and similar proclamation was issued, covering the 
Sew Testament and writings of many theologians. The act 
passed in the 3rd and 4'h Edward \'I., repeated this folly. So 
thousands of Bibles were bumird under the personal super- 
vision and benediction of priests and bishops, because of the 
immoral tendency toward private judgment invoJved in read- 
ing the "Divine Record."* 

Poor William Tyndalc, who took the infinite trouble of 
translating the scriptures into Eiiglisli. foitnd iliat "liis New 
Testament was forthwith burnt in London ;" and he himself, 
after some years, was strangled and burnt at Antwerp. 
(«S36).' 

So now we have many who likewise esteem it to be of 
immoral tendency, for others than themsflvcs. to secure such 
information as may lead to a personal and different opinion 
about the physiology, psychology, hygiene, or ethics of sex, 
and by law we make it a crime to distribute any specific and 
detailed information upon these subjects, especially if it be un- 
prudish in its verbiage or advocate unorthodox opinions about 
marriage or sexual ethics. This is repeating the old folly that 

'Vittert' Miii»rdon o! Ul«t»iare. pp. IM. tie id MT. Sc« »Iw VtOtnan'i 
Ubtflj ef ihc Pfsi, |i. to. 

'Ttoolct Concjmtltd ta be Buml. pmrr 0. 

78 





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oog IC 



UNOeBLYING CONSTITUI'IUNAL (il'ABANTEt: OK ("RKK PKBS9. 

the adult masses cannot be trusted to forni an opinion of their 
own. 

The "free" people of the United States cannot be al- 
lowed to have the information which might lead to a cliange 
of their own statute laws upon sex. 

SuppBEssiNG Truth for Expediency. 

There will always be those thoughtless enough to be- 
lieve that truth may be properly suppressed for considerations 
of exjiediency. I prefer to believe with Professor Max Miiller. 
that "The inith i:i always safe, and nothing else is safe"; 
and with Drummond that "He tliat will not reason, is a bigot; 
he that cannot reason, is a fool, and he that dares not reason, 
i* u ilave"; an<l wilh Thomas Jefferson when in his inaugu- 
ral arldress he wrote, "Error of opinion may be tolerated, when 
reason is left free to combat it": and I believe the^e are still 
truisms even though the subject \» sex. 

We have only to go back a few centuries to find an in- 
fluential clique of pious men trying to maintain a monopoly 
of "truth." Those who disputed their affirmations, whether 
about gfology or theology, were promptly beheaded or burnt. 
The clerical monopolists denied common people the right, not 
only of having an independent judgment as to the significance, 
or value, or truth of "holy writ," but even denied them the 
right to read fhe book itself, because it would tempt them to 
independent judgment, which .might be erroneous, and thus 
make them "immoral." 

The contents and the interpretation of the Bible, together 
with the political tyranny founded on these, must, "with 
humble proiitration of intellect." be unquestioningly accepted. 
Those who disputed the self -constituted mouthpieces of God 
were promptly killed. And now. those who, without "humble 
prostration of intellect," dispute any of the ready-made igno- 
rance on the phy.stoIogy, hygiene and psychology or ethics of 
sex. are promptly sent to jail. Yd wc call this a "free" coun- 
try, and our age a "civilized" one. 

By the same appeal to a misguided expediency, we find 
that only a few years ago it was a crime to teach a negro 
slave how to read or write. E:ducation would make him doubt 
his slave-virtues, and with a consciousness of the injustice 
being inflicted upon him. he might di.<.turb the public order 
to secure redress. So, imparting education became immoral. 



79 



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OBSCKNB LtTERATURE AND CONSTITUTIONAL LAW, 

and was made a crimt. An effort was made to make it a crime 
to send anti-slavery literature through the mails because of its 
immoral tendcnc>-, and southern postmasters often destroyed 
it without warrant of law, thus refusing delivery to tlio« to 
whom it was addressed. 

Within the past century, married women had no rights 
which their hu^ibands need respecl. and edncadon of women 
was made impossible, though the imparting of it was not 
penalized. Now they may acquire an education about every- 
thing, except what ought to be the most important to them, 
namely: A scientific knowledge of the ethics, physiology, 
hygiene, and ps>-chology of sex. To furnish them with 
literature of the higlicst scientific order, even tliough true 
and distributed from good motives, or in print to ai^ie for 
their "natural right and necessity for sexual self-government," 
is now a crime, and we call it "obscenity" and "indecency." 

Formerly, when bigots were rampant and openly domi- 
nant, the old superstition punished the psychological crime of 
"immoral thinking." because it was irreligious, and it was 
called "sedition." "blasphemy," etc Under the present verbal 
disguise, the same old superstition punishes the psychological 
crime of immoral thinking, because it may discredit the ethical 
claims of religious asceticism, and now we call it "obscenity" 
and "indecency." Wliat is the difference between the old and 
the new superstition and iwrsccution ? 

Strange to say, there are hundreds of thousands of the un- 
churched, who, for want of clear mental vision or adequate 
moral courage, are fostering the suppression of unconventional 
thinking, and justify it, upon considerations of expediency. 

Tlie argument against the expediency of truth is ever the 
last refuge of retreating error, a weak subterfuge to conceal 
A dawning consciousness of ignorance. In all history, one 
cannot find a single instance in which an enlargement of op- 
portunity for the propagation of unpopular allegations of truth 
has not resulted in increased good. 

"If I were asked. 'What opinion, from the commencement 
of history to tlie present hour, had been productive of the 
most injury to mankind?' I should answer, without hesita- 
tion: 'The inexpediency of publishing sentimcntt of supposed 
bad tendency.' " It is this infamous opinion which has made 
the world a vale of tears, and drenched it with the blood of 
martyrs. 

So 



L'HjiiiwiUy 




ooijjie 



l'nderlytnc constitutional guarantke of free press. 

The Amuse of Freeuom. 

I ira fully mindful of the fact that an unrcslricted press 
means that some abuse of the freedom of the press will result. 
However. I also remember that no man can tell a priori what 
opinion is of immoral tendency. ! am furthermore mindful 
that we cannot argue against the use of a thing, from the 
possibility of its abuse, since this objection can be urged 
against every good thing, and I am not willing to destroy all 
(hat makes ii/c pleasant. Lord Littleton aplly said: "To 
argue against any breach of liberty, from the i'* use 'Jiat may 
be made of it, is to argue against liberty iUmlf, since all is 
capable of being abused." 

Everyone who believes in the relative and p-ogrcssive mo- 
rality of scientific ethics, must logically beliLve in the im- 
morality of a code which preaches absolutism in morals upon 
the authority of inspired texts, instead of deriving moral pre- 
cepts from natural, physical law. But that is no warrant for 
the scientific moralist suppressing the teaching of religious 
morality, as inexpedient, even if he believed it to be so and 
had the power. Neither can the religious moralist justify 
himself in the suppression of the opinions of his scientific 
opponents. It is alone by comparison and contrast that each 
perfects his own system, and in the end all are belter off for 
having permitted the disputation. 

No argument for the suppression of "obscene" literature 
has ever been ofJcrcd which, by unavoidable implication, will 
not justify, and which has not already justified, every other 
limitation that has ever been put upon mental freedom. No 
argument was ever made to justify intolerance, whether po- 
litical, theological, or scientific, which has not been restated 
in support of our present sex superstitions and made to do 
duty toward the suppressing of information as to the physi- 
ology, psychology, or ethics of sex. AH this class of argu- 
ments that have ever been made, have always started with the 
false assumption that such qualities as morality or immorality 
could belong to opinions, or to a static fact. 

Because violence is deemed necessary to prevent a change, 
or the acquisition of an opinion concerning the hygiene, 
physiology or ethics of sex, wc must infer Uwr those who 
defend the press censorship arc unconsciously claiming om- 
niscient infallibility for the present sexual intelligence. If 
thdr sex opinions were a producj of mere fallible reason, 

Si 



Digteea tiy ' 



.ooi^le 



ORSCENE LITl^KATV'RE AND CONSriTUTIOXAL UAW. 

thej would not feci the desirability, the need or duty to sup- 
press rational criticism. By denying others the right of pub- 
lishing cither confirmation or critici*ni, ihey admit that their 
present opinions are a matter of superstition and indefensible 
as a matter of reason. To support a sex superstition by law 
is just as reprehensible as. in the past, it was to support the, 
now partially exploded, governmental, scientific and theological 
supersiilions. by the same process. This, be it remembered, 
was always done in the name of "morality." "law and order," 
etc. 

Wi(.i. T«irTH. CKtrsiiEn. Rise Ac.MS-f 

There may still be those who argue ihat the persecutors 
of Christians were right, because the persecution of an advo- 
catc is a necessary ordeal through which his tnith always 
passes successfully; legal penalties, in the end, being power- 
less against the truth, though sometimes beneficially eflTecttve 
against niischievous error. 

It may be a historical fact that all known truths, for a 
time, have been crushed by the bigot's heel, tun this should 
not make us applaud his iniquity. It is an aphorism of un- 
baJanccd optimists, that truth crushed to earth will always 
rise. Even if this were true, it must always remain an un- 
provable proposition, because it postulates that at every par- 
ticular moment we are ignorant of all those suppressed truths, 
not then resurrected, and since wc do not know them, we 
cannot prove that they ever will be resurrected. It would 
be interesting to know how one could prove that an unknown 
truth of past suppression is going to be rediscovered, or that 
the condition.-^ which alone once made it a cognizable fact 
will ever again come into being. And yet a knowledge of 
It might have a very important bearing on some present coa- 
troversy of moment. 

Surely, many dogmas have been wholly suppressed which 
were once just as earnestly believed to be as infallibly true 
as .some that are now accepted as inspire'! writ. Just a little 
more strenuosity in persecution would have wiped out all 
Christians, if not Christianity itself. How can wc prove that 
all the suppressed, and now unknown, dogrnas were false? If 
mere survival after per.<iecution is deemed evidence ol the in- 
errancy of an opinion, then which of the many conflicting opitt- 
ions, each a survivor of persecution, are unquestionably true. 

8» 



L'Hjiiii-iiuy 




OOt^lC 



L-sDenLviNc coKsrrrcTios.M. cvaiiantke op wrsk press. 

and how is the choice to be made from the mass? Is it not 
clear that neither a rediscovery, nor a survival after persecu- 
tion, can have any special relation to truth as such? If it is, 
then let us unite to denounce as an unprovahle hallucinatioD 
the statement that truth crushed to earth will rise again. 

The abettors of persecution are more damaged than those 
whom they deter from expressing and dcfcndinR unpopular 
opinions, since, as between these, only llie former are de- 
priving themselves of the chief means of correcting their own 
errors. But the great mass of people belong neither to the 
intellectual innovators, nor to their persecutors. The great 
multitude might be quite wilhng to listen to or read uncon- 
ventional thoughts if ever permitted, smid opportunity, to 
exercise an uncoerced dioice 

Fau<*k .\nai/k;y. 

Much of the justification for intolerance derives its au- 
thority from false analogies, wrongfully carried over from 
physical relations into the realm of the psychic. 

Thus some argue that because, by laws, we protect the 
incompetent against being (unconsciously) infected with con- 
tagious disease, therefore the slate shuiild also protect them 
(even though mature and able to protect themselves by mere 
inattention) against the literature of infectious moral poison. 
Here a 6gurc of speech is mistaken for an analogy. "Moral 
poiwn" exists only figuratively and not literally in any such 
sense as strychnine is a poison. 

Ethics is not one of the exact sciences. Probably it never 
will be. Until we are at least approximately as certain of the 
existence and tests of "moral poison," as we are of the physical 
characteristics and consequences of carbolic acid, it is folly 
to talk of "moral poison" except as a matter of poetic license. 

In the realm of morals no age has ever shown an agree- 
ment, even among its wisest nnd best men. cither as to what 
is morally poisonous, or by what test it is to be judged as 
morally deadly. Moral concepts are a matter of geography 
and evolution. The morality of one country or age is viewed 
as the moral poison of another country or age. The defended 
morality of one social or business circle is deemed the im- 
morality of another. The ideals which attach to one man's 
God. are those of another man's devil. Furthermore, our 
best scientific thinkers concur in the belief that all morality 



Diciiiyyuy 



.ooj^lc 




OBSCENE LITEEATURB AND OJNSTITfTlOJJAI, LAW. 

is relative and progressive, whereas numerous other men deem 
a part or all of our condu« to be per se moral or immoral. 
Some deem the source of authority in matters of morals to 
be God, as his will is manifested through the revelations or 
prophets of his particular church, or diat interpretation of 
them which some particular branch of some particular church 
pfomulRates. Others find morality only in the most health- 
giving adjustment to natural law, and still others find their 
authority in a conscience, unburdened eitlier with supernatural 
light or worldly wisdom. Only the generous exercise of the 
most free discussion can help us out of this chaos. 

PBOGRESii BV KNOWLEaWK OF NaTUBAL L.AW. 

Philosophers tell us that life is "the continuous adjtistment 
of internal relations to external relations." The use of con- 
scious effort toward the achievement of the fullest life, through 
our most harmonious conformity to natural laws, is the es- 
sential distinction between the human and other animals. 

Observance of natural law is the unavoidable condition of 
all life, and a Icnowlcdge of those laws is a condition precedent 
to all effort for securing well-being, through conscious adjust- 
ment to them. It follows that an opportunity for an acquain- 
tance with nature's processes, unlimited by human coercion, is 
the equal and inalienable right of every human being, because 
essential to his life, liberty, and pursuit of happiness. No 
exception can be made for the law of our sex nature. 

It also follows that in formulating our conception of what 
is the law of nature, and in its adjustment or application by 
as to our infinitely varied personal constitutions, each sane 
adult human is the sovereign of his own destiny and never 
properly within the control of any other person, until some one, 
not an undeceived voluntary participant, is directly affected 
thereby to his injury. 

The laws for the suppression of "obscene" literature, as 
administered, deny to adults the access to part of the alleged 
facts and arguments concerning our sex nature, and therefore 
are a violation of the above rules of right and conduct. 

Moral Aiwance Thuoijgh CmrinsM. 
We all believe in intellectiul and moral progress. There- 
fore, whatever may be the character or subject of a man's 
opinions, others have the right to express their judgments 
upon them, to censure them, if deemed censurable or turn 
Ihem to ridicule, if deemed ridiculous. If &uch right U not 

84 



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oo^^ie 



L-NDKHLYINR CTIKSTITUTIONAL ClTARANTeX OP FRES PUSS. 

protected by l»w. we should have no security against the 
cxposilioti or perpetuity of error, and therefore we sbouJd 
hsmper progress. 

It follows that tliL- believer in a personal God or in the 
Trinity, the Mormon with his "Adam-God," the Agnostic with 
his "Unknowable." the Christian-scientist with his impersonal 
"All mind and all love" God, the Unitarian with his "Purpose- 
ful Divine Immanence."' the Thcosophist with his godless "Nir- 
vana." and the Atheist, all have an equal right to vie with 
one another for pnWic favor ami, incidentally, to censure or 
ridicule any crudities which they may believe they see in any 
or all rival conceptions. 

It is only by recognition and exercise of such a liberty 
that humanity has evolved from the primal sex-worship 
through the innumerable phases of nature worship to our 
present relatively exalted religious opinion. Even though we 
reject all, or all but one, of the numerous modem anthropo- 
morphic and deistic conceptions of God, we must still admit 
that each of these is based upon a more enlightened and en- 
larged conception of the Universe and man's relation to it. 
than can possibly be implied in the worship of the phallus. 
Thus liberty of thought and of its expression has been and 
will continue to be the one indispensable condition to the im- 
provement of religions. 

If we are not thus far agreed as to the equal moral rights 
of each, then which one has less right than the rest? It is 
beyond question that the solitary man has an unlimited right 
of expressing his opinion, since there is no one to deny him 
the right. With the advent of the second man surely he 
still has the same right with the consent of that second man. 
How many more persons must join the community before 
they acquire the moral warrant for denying the second man 
the right and the opportunity to listen to. or to read, anything 
the other may speak or write, even though the subject be 
theology or scx-morality ? By what impersonal standard (not 
one based merely upon individual preferences) shall we ad- 
judge the forfeiture of such individual rights, if forfeiture 
is to be enforced by a limiution? 

If such impersonal standard cannot be furnished then 
the argument must proceed as follows: If all disputants have 
the equal right to question and deride the conceptions of all 
the rest as to the existence, nature or knowableness of their 
respective God. then they have an equal right to question the 

85 



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iooglc 



OBSCBNC LITERATUKB AND CONSTITUTIONAL LAW. 

divine origin or interpretation of tliai which others believe to 
be divine revelation. 

If men have a right to cast doubt upon the source and 
fact of divine revelation, then, of course, tliey must have an 
equal right to discredit that which others believe to have 
been taught by such divine revelation, even though the sub- 
ject be the relation of the sexes. 

More specifically, that means this: The Catholic priest 
may advocate, as others deny, the superior morality of his 
celibacy; the one may argue for, and the other against, the 
compatibility of the best health and life-long continence, and 
to this end either may adduce all the evidence, historical, ex- 
perimental or scientific, which is deemed material : the mar- 
riage purists may argue for, and others against, the superior 
morality of having scxiial relation only for the puqyjse of 
procreation : the Bible Communist of Oneida may advocate, as 
others deny, the superior morality of "free love"; the Episco- 
palians and Ethical Cullurists, may advocate, as others deny, 
the superior morality of indissoluble monogamy ; the Agnostic 
or Liberal Religionist may advocate, and others may deny, the 
superior morality of easy divorce; the Utilitarian may advo- 
cate, as others deny, the superior morality of stirpiculturc with 
or without monogamic marriage: the Mormon may advocate, 
as other* deny, the superior morality of polynamy, etc., etc. 

1 assume (or the present, and for the sake of the present 
argument only, that they do not advocate the violation of ex- 
isting marriage laws, but limit their demand and argument to 
a repeal or amendment of those laws, so as to make them con- 
formable to their respective ideals. Under present laws nu- 
merous persons have been arrested for making arguments in 
favor of some of the foregoing propositions, while advocates 
of the contrary view have gone on unmolested. 

Those who hold to any one of these ideals necessarily 
believe all others to be of immoral tendency; and it seems 
to me that ridicule, fact and argument, nnrcstricled as to 
adults, are the only means by which the race can secure that 
progressive clarification of moral vision which is essential to 
higher moral development. 

The vaunted morality of one age is the despised super- 
stition and barbarism of succeeding ages. Thus we have 
proceeded, as far as our sexual morality is concerned, through 
irresponsible, indiscriminate promiscuity, group marriage, 
female slavery, the sacred debauchery of sex-worship, poly- 
andry, polygamy, the abhorrent ideals of ascetics and sex- 

86 



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VNOCXLVING CONSTITUTIONAL CUAKANTEl^ 01' FBEt PRESS. 

perverts, lo our present standards, and the course of moral 
evolution is not yet ended. 

Since, then, the very superiority of our present morality 
is due to the liberty of thinking and of exchanging thoughts, 
how absurd and outrageous it is now to impair or destroy the 
very basis upon which it rests, and upon which must depend 
the further development of our progressive morality I 

Since advancement in the refining of our ethical concep- 
tioRS is conditioned upon experimentation and the dtssemina* 
tkm of its observed results, it follows that the most immoral 
of present tendencies is that which arrests moral progress 
by limiting the freedom of speech and press. When viewed 
in long perspective, it also follows that we must conclude that 
the most immoral persons of our time are those who arc 
now successfully stifling discussion, and restricting the spread 
of sexual intelligence, because they are most responsible for 
impeding moral progress, as to the relations of men and 
women. 

Those who in these particulars deny a freedom of speech 
and press and the correlative right lo hear, unlimited as to 
all sane adults, by their very act of denial exercise a right 
which they would suppress in others. The true believer in 
equality of liberty allows others the right to speak against 
free upeech, though he may not be so hospitable as to its 
actual suppression. No man truly believes in liberty who is 
unwilling lo defend the right of others to disagree with him, 
even about frce-lovc, polygamy or stirpiculture. 

If our conceptions of sexual morality have a rational foun- 
dation, then they are capable of adequate rational defense, 
and there is no need for legislative .suppression of discussion. 
If our 5ex ethics will not bear critical scrutiny and discussion, 
then to suppress such discussion is infamous, because it is 
a Icgaliicd support of error. In cither case the freest pos- 
sible di.scussion is a necessary condition of the progressive elim- 
ination of error. 

OtTR OpivinvB .\he Involl'ntary. 

No man can help believing that which he believes. Belief 
is not a matter of volition. No man, by an act of will, can make 
himself believe thai twice two are six. He may say it. but 
he cannot believe it, that is, he cannot acquire a correspond- 
ing concept. No man. solely by an act of will, can stop 
thinking. No man can tell what he will think tomonxiw, nor 
arbitrarily determine what he will think next year. 

87 



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OBSCENB LITERATURE AND CONSTITUTIONAL LAW. 

If there still remain any believers in the free-will super- 
stition, as applied to matters of belief, each of them can, by 
a simple test, demonstrate to himself the impossibility of ar- 
bitrarily controlling his conviction. Let him, solely by an 
uncaused exercise of his "free-will," abolish his belief in its 
existence, and substitute the conviction that a man in his men- 
tal life is a mere irresponsible automaton. Then, having firmly 
held this latter conviction for just ten days, let him, by another 
uncausrd act of ihe "free-will" (which then he docs not be- 
lieve in), restore his belief in its existence. Not until 1 find a 
sane man who honestly believes that he has performed this, to 
me impossible feat, can I admit that the existence of a "free- 
will" as applied to our thought-products, is even a debatable 
question. 

"Free will" in the determination of one's opinion is but 
a special phase of ihe general " free-will" doctrine. Tliosc 
who, in spite of the foregoing suggestions, continue to be- 
lieve in the lawlessness of the intellect and their own ability 
to belic\e doctrines without evidence or against what to them- 
selves seems a preponderance of the evidence, must be re- 
ferred to the scientific literature upon the subject.* 

Professor Fiske, in his Cosmic Philosophy, fully considers 
and answers all the arguments for a "lawles.snesg of volition" 
and concludes his discussion with these paragraphs: 

"From whatever scientific standpoint we contemplate the 
doctrine of lawlessness of volition, we find that its plausible- 
ness depends solely on tricks of language. The first trick is 
the personification of will as an entity di&tinct from all acts 
of volition ; the second trick is the ascription to this entity 
of 'freedom." a word which is meaningless as applied to the 
process whereby feeling initiates action; Ihe third trick is 
the assumption that desires or motives are entities outside of 
a person, so that if his acts of volition were influenced by 
them he would be robbed of his freedom. 

"Whatever may be our official theories, we all practically 
ignore and discredit the doctrine that volition is lawless. 
Whatever voice of tradition we may be in the habit of echo- 
ing, we do equally, from the earliest to the latest day of our 
self-conscious existence, act and calculate upon the supposi- 
tion that volition, alike in ourselves and in others, follows 
invariably the strongest motive. 

■MiuililrT. "Bo'ly inil M<Dd.~ r«n I ; Iljrbrri Sprnnr. "Prinriplw of P«y. 

cbolarr." VeL I. cf. «M to n»; Ribot. -'n<uu«t of the Will": John FUkc. 

"tmiMli l"lnlo»oplix. Vol. II, cb»|>. II: "Unlvcful IDuilon of l'i« Will." bjr 
A. HinicD. 



Di!Jii;«:t;v 



UNDERLYING CONSTITUTIONAL CITAHANTEE OF FREE PRESS. 

"Finally, in turning our attention to history, we have found 
that the aggregate of thoughts, desires and volitions in any 
epoch is so manifestly dependent upon the aggregate of 
thoughts, desires and vwHiiuns in the preceding epoch, that 
even the assertors of the lawlessness of volition are forced to 
commit logical suicide by recognizing the sequence. Thus, 
whether we contemplate volilions themselves, or compare their 
effects, whether we rcson to the testimony of psychology or 
to the testimony of historj-, we are equally compelled lo admit 
that law is co-exlcnsive with all orders of phenomena and with 
every species of change. 

"It is hardly creditable to the character of the present 
age of scientific enlightenment that such a statement should 
need to be made, or that twenty-six pages of critical argument 
should be required lo illustrate it. 

"To many, this chapter will no doubt seem an elaborate 
attempt to prove the multiplication table. Nevertheless, where 
such blinding metaphysical dust has been raised, a few drops 
of the cold water of common sense may be not only harmless 
but useful" 

Ot'lNIONS ABR NoN-MoHAL. 

Since our beliefs are not a matter of uncaused choice, 
but an unavoidable consequence, man cannot properly be held 
morally responsible for what he believes. Moral responsibilit)' 
or guilt cannot attach itself to our thoughts, and no man 
thoutd be punished for holding or expressing unpopular or 
unconventional or miscalled "immoral" opinions, at least until 
it is shown that actual material and direct injury has resulted 
lo some one, not an adult who invited the damage or was him- 
self an immediate participating cause. 

An abstract opinion, or its verbal expression, cannot be 
either moral or immoral, though conduct based thereon may 
be. Those who advocate a moral censorship of literature are 
confounding the consequences of opinion with those of con- 
duct. The evil consequences of the latter flow from the acts 
alone, while opinions in themselves can have no evil con- 
sequeiKcs. To produce such the published opinion must 6rst 
be assimilated by the receiving mind, and then transformed 
into injurious non-sclfregarding action. Therefore it is the 
conduct and never directly the opinion which is immoraJ. 

Some who justify intolerance admit this, and think they 
evade its consequences by saying that they believe in punish- 
itig difference of opinion only in its expression, which is 

89 



Dnjii:t.-i:t;vO( 



INK UTKIL\TURE ASD CONSTITUTIONAL LAW. 

ading. nut thinking. "Thinking is free," Uiey say. "but 
speech is so only by tolerance, not as a matter of right. Nq 
man may injure us. by his sptech, any more than with his 
club. The spoken or printed word may be an act as guilty, 
as inexcusable and as painful as a knife-thrust." This i.i all 
true. but. rightly interpreted, is no answer to the doctrine of 
the freedom of speech, rightly understood. 

Save in pnlliating exceptions, well recognized in the law 
of libel and slander, you may not talk about one person to 
another, so as wantonly to injure the former in his good 
name, credit, property, etc. This, however, cannot be made 
to justify the proposition that you may not, with the con- 
sent of llic listeners or readers, express to them any speculative 
conviction, upon any snbjecl, even sex, which is not directly 
invasive of anyone's rights or equality of liberty. That speech 
is free only by tolerance is also an acceptable maxim, if we 
understand the tolerance of the sane adult listener, or reader, 
and not the tolerance of others. No one should, or can, be 
compelled to read anything or to assimilate what he reads. 
Consequently nobody needs the help of the state to protect him 
against compulsoiy intellectual exercise. 

The KifiHT rn Hg-\r and Uesti. 

The right of expression of opinion is inseparable from the 
right to hear and weigh arguments. The state can have no 
property right in the unchangeableness of anyone's opinions, 
even about sexual ethics, such as to warrant it in prohibiting 
him to alter such opinions. If the ^tate has no warrant to 
prohibit a change of view, it ha^ no moral right to compel 
attendance at church or elsewhere, for the purpose of unify- 
ing thought, nor to prnhihit any person to supply the facts 
and arguments which may be the means of producing a 
changed view. This conclusion is not to be altered according 
to whether the ideas are woven into poetry, fiction, painting, 
music or science. No one can compel another to read ; no 
one can rightfully deny him the privilege of reading, or 
another the opportunity of preparing '-'r furni'^htne him the 
reading matter upon request; none but an insufferable tyrant 
would attempt such a thing, even upon the .subject of sex. To 
deny one the right to come into possession of part of the evi- 
dence is just as objectionable a« to comiiel attendance where 
only the rest of the evidence will be related. 

A change of opinion, through ai'rfed knowledge and il« 
rational assimilation, only means intellectual development 

90 



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UNDERLYING CONSTITUTIONAL tiUABA.NTi;i; OF FRKB PRESS. 

which can seldom injure anyone. But if injuiy shall ever 
come to us by our acquisition of new facts, or the acliieve- 
ment of new opinions, then, unlike the injury of another's 
knife-thrust, ii comes only by our active co-opcratiun toward 
the accomplishment of thai injury. 

Usually the "injury," resulting directly from an acceptance 
of unpopular beliefs, exists only in the imagination of those 
holding contrary opinions, and they should never be entrusted 
with the always dangerous power of forcing upon sane adults, 
against their protest, any unappreciated and undesircd, ready- 
made, intellectual blessing. Of ncce^isity, minorities must 
have the same right and opportunity to express their opinions 
and to try to secure the majority endorsement, as the majority 
have to express contrary ones. To deny this is to destroy all 
possibility for intellectual advancement, since new truths are 
at first revealed only to the few, and these innovators, and 
their advanced ideas, are invariably denounced by the stupidity 
of an unreasoning conservatism. This is just as true about 
the hyfjicne, physiology, psychology and etliics of sex, as about 
anything else. In support of this contention for a liberty of 
speech and press regardless of dreaded h}7X)thctica1 conse- 
quences, we may well quote the unanswerable logic of Profes- 
sor Cooper. He wrote: 

This is Demonstration. 

"Indeed, no opinion or doctrine, of wliatever nature it be, 
or whatever be its tendency, ought to be suppressed. For it 
is either manifestly true or it is manifestly false, or its truth 
or falsehood is dubious. Its tendency is manifestly good, or 
manifestly bad, or it is dubious and concealed. There are no 
other assignable conditions, no nther factors of the problem. 

"In the case of its being manifestly true and of good tend- 
ency, there can be no dispute. Nor in the case of its being 
manifestly otherwise: for by the terms it can mislead nobody. 
If its truth or its tendency be dubious, it is clear that nothing 
can bring the good to light, or expose the evil, but full and 
free 'liscussion. Until this takes place, a plausible fallacy may 
do harm: but discussion is sure to elicit the truth and fix pubUc 
opinion on a proper basis ; and nothing else can do it" 

Again, let me also quote irom Vol. 6 of Westminster 
Review: 

"It is obvious there is no certain and universal rule for de- 
termining, a priori, whether an opinion be useful or perni- 
cious, and that if any person be authorized to decide, unfct- 

91 



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OBSCBNE LlTERATUkE AND CONSTITUTIONAL LAW, 

tered by such a rale, that person is a despot. To decide what 
opinions shall be permitted and what prohibited, is to choose 
opinions for the people; since they cannot adopt opinions 
which are not suffered to be presented to their minds. Who- 
ever chooses opinions for the people possesses absolute control 
over their actions, and may wield them for his own purposes 
with perfect security, and for evil as well as for good unle 
mfalltble." 

[f there exists an o^rinion, the truth or falsity of which it 
unanimously conceded to be of no consequence to humanity, 
either for good or evil, then no excuse can be given for sup- 
pressing it, and indeed, no one would be interested to prohibit 
its discussion or to discuss it. If the truth of an opinion is 
by any deemed to be of consequence to humanity, then there 
exist only reasons for encouraging the greatest freedom of 
discussion and experimentation, since these arc the only ave- 
nues to the correction of any opinions, even upon the subject 
of sexual physiology, psychology, hygiene, or ethics. 

So long as there is, among sane adults, difference of opinion 
about anything, our race has not as to that subject matter at- 
tained to certain knowledge, and only freedom in the inter- 
change of opinion and experimentation can help us onward. 
When our knowledge of sex. religion, etc.. has been established 
to a mathematical certainty there will be no difference of opin- 
ion, and to suppress or abridge discussion upon these subjects 
before we have reached mathematical certainty for our con- 
clusions, is an outrage because it is the most effective bar to 
our attainment of such certitude. 

"DANGEntons" Opinions, 

But. it is said, this justific^i the ^^prcad of "danprcrons" opin- 
ions. Yes. it does. It is time enough to punish dangerous 
opinions when the "Manger" has ceased to be merely specula- 
tive and hypothetical ; that is when it is shown to have ac- 
tually resuhed in the violent or fraudulent invasion of nature's 
rule of justice. 

If the advocate of a "dangerous" opinion has not himself 
been induced by it to commit an unjust interference with the 
largest equal liberty of others, it is improbable that it will 
induce his hearers or readers to become invaders. If the opin- 
ion is dangerous in those who might hear or read it, it is pre- 
sumably equally dangerous in the mind of him who would 
express it verbally, if permitted. If we are warranted in 
excluding the opinion from the minds of others because it 

9S 



Ditiiiiwiuy 



UXDeXI.VII4G OOKSTITCTIONAL GUAKANTBE OF FREE PRESS. 

tends towards "danj(croua" acts, then wc are also warranted 
in making such dangerous acts impossible to those who already 
entertain such "dangerous" opinions. Furthermore, we can- 
not then be logically compelled to await the realization of 
that danger from those already convinced, any more than from 
those about to be convinced. Such premises bring us una- 
vmdably to the result that society would be justified in engag- 
ing in inquisitions for the discovery of every man's opinions, 
with the purpose of incarcerating him for life, or until a 
change of conviction, as a means of preventing the "danger" 
which his opinions are supposed to threaten. Thus the denial 
of an unlimited liberty of speech and press leads us by una- 
voidable logic back to a total denial of both liberty and secrecy 
of conscience. 

Since these speculative and hypothetically "dangerous" 
opinions are to have their dangerousness determined wholly 
by a priori methods, no limitation by way of general rule can 
possibly be put upon the whim, caprice, or superstitious fears 
of the mob. !t folIo*-s that if we are to admit the power or 
justify any suppression whatever, of the expression of any 
opinion whatever, we by necessary inference admit the ex- 
istence of a rightful authority for every inquisition, and the 
punishment of every unpopular opinion, though silently and 
harmlessly entertained. There is no line which can be drawn 
between ndmitling the jurisdiction of the State to incarcerate 
any man for any opinion whatever, even those secretly enter- 
tained, and the liberty of conscience, speech and press unre- 
stricted even in the very slightest degree. The initial act of 
tyranny by whieh we now justify our (iresent abri'lpmenls of 
the liberty of speech and press, thus furnishes the precedent 
and justification for a total denial of the liberty of conscience. 

If wc would preserve any semblance of liberty of opinion, 
h must be liberty for the entertainment and expres-tion of any 
opinion whatever. Let us then put ourselves firmly on the side 
of those who would never punish any opinion, until ii had re- 
mtted in an overt act of invasion, and then puni-sh the holder of 
the "dangerous" opinion only for his real participation in that 
act. as a proven accessory, and not otherwise. 

Fol'NnATION OF LlEF-KTV. 

This then brings us hack to that firm foundation of liberty 
which was exprewed by Holt.' in these words: "Private im- 
morality or vice without public example (of invasion], and 

■Ijkt of IJkel." p. n, isic 

93 



Ditjiiien ay 



iooglc 



OBSCENK LlTRRATirRK AND CONSTITl."TlOS'.\L LAW. 

tenninating in the indiviijual, is left to a more sotemn reck- 
oning." 

The same thought is found in Herbert Spencer's defini- 
nilion of liberty, expressed by him in these words: "Every man 
has freedom to do all that he wills, provided he infringes not 
the equal freedom of any other man." No opinion, even 
though it advocates juch infringement of another's equal free- 
dom, can by the mere verbal expression of it constitute such 
infringement. It follows that, no matter how slight, every 
abridj^cnt of the lil>er!y nf conscience, !^peech or press is il- 
sclf an unpardonable tyranny and necessarily implies a justifi- 
cation for every form of inquisition, and for every form of 
lawless absolutism, in the constituted tyrannical power. 
RiGUT And Wbong Methods. 

The methods and evil con.scquences of tlic intellectual aettv- 
ity of all superstitious or bigoted persons are the same. In- 
stead of leading others to an acceptance of llieir conclusions 
by cncDuraRing an examination of all possililc pertinent evi- 
dence, they inculcate their convictions by dogmatic reiteration 
and a cultivatit^n of a^sociated emotions of approval. Thus 
they instil into the minds of the weak an<l immature a forceful 
habit of unfairness, of imbecility, and of mental corruption, 
which unfits all affected ones for honest inquiry or the love of 
trulh, or a desire to weigh oppo.sitig evidence. The bigot 
always attempts to frighten others from honestly or thor- 
oughly investigating his convictions, by <k-nouncing disagree- 
ment as dangerous, wickedly heretical, and therefore "im- 
moral." By such superstitious, ethical sentimentalizing, the be- 
nighted, in the name of the social good, deny others the right 
or the means of examining their boasted "morality." 

The small mind is incapable of seeing the distinction be- 
tween indifference to ihe tnilh of one's opinions and indif- 
ference as to which of conflicting opinions shall prove to be 
true. The former i> the attitude of the bigol and persecutor, 
otherwise he could not justify the limitation of discussion, 
and the suppression of evidence. The latter proposition pre- 
sents the temper of the scicnlists. who therefore desire to con- 
sider all the material evidence adduciblc. 

The man of rational mind considers alt evidence, for the 
love of truth, but never loves any statement of alleged truth 
before it is fairly demonstrated to be true, and even then, he 
accepts it as only a conditional truth, for the correction of 
which all new evidence will ever be welcomed. 

94 



Dnji'it-'tiuv' 



L-.S'lieRLVINC CONSTITUTIONAL GUARANTEE UF FREF. PBF^. 

Purists of literature confound (he attributes of belief with 
those of the behavior toward evidence. They ascribe to mere 
belief the praise or blame which can only be due to one's 
mode of dealing with evidence. Thus they make a virtue of 
unfairness, by forcibly suppressing a part, or punishing an 
honest weighing of all the evidence. They bribe men's intel- 
lect to the suicide of lopic, by withholding praT.'*e or reward 
from the only menial activity which merits praise or blame. 
viz^ the presence or absence of a full and impartial inquiry 
by every individual for himself. Since instilling opinions 
into others, without evidence, engenders an habitual neglect 
of evidence, the dogmatist of morals is the only man who 
can tie giiilty >.>( ink-llcctual immorality, because he nurtures 
the essence of all depravity. 

"TTie habit of forming opinions and acting upon them 
without evidence, is one of the most immoral habits of mind. 
As our opinions are the fathers of our actions, to be indif- 
ferent about the evidence of our opinions is to be indifferent 
about the conse(|ucncc5 of our actions. But the consequences 
of our actions arc the good and evil of our fellow creatures. 
The habit of neglect of evidence, therefore, is the habit of 
disregarding the good or evil of our fellow creatures." This 
is the foimdation of all evil, and it follows that the moral cen- 
sors of literature, being guilty of this habit, it must be a rare 
accident if, from a more enlightened view, and in long per- 
spective, they be not judged deep in vice. 

It is the disregard for and misuse of evidence by the masses 
which explains the existence of all pernicious institutions, and 
the mischievous opinions which support them and furnUh their 
hateful durability. 

If there can be any intellectual crime, it must consist 
of the voluntary neglect of evidence within reasonable access, 
and the highest degree of this criminality must attach to those 
wbo deliberately suppress this evidence which otherwise might 
be accessible to others prepared to make a right use of it, 
Ko man can be held responsible, nor should he be punished, 
for the effect which may be produced on his understanding 
by the partial evidence to which alone he had access. From 
this it follows that errors of the understanding must be cor- 
rected by an appeal to the understanding. Fines and im- 
prisonment are bad forms of syllogism, which may suppress 
truth, but can never elicit it. 

95 



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.OOJ^lC 



OnSCENK LITERATURE AND CONSTITUTIONAL LAW, 

"The public interest requires that every difficult question 
[even questions of the hygiene, the psychology and the ethics 
of sex] should be patiently and deliberately examined on all 
sides, under every view in which it presents itself; that no 
light should be excluded, but evidence and argument of every 
kind should have their full hearing. It is thus that the 
doubtful truths of one generation become the axioms of the 
next; and that the painful results of laborious investigation 
and deep thinking gradually descend from the closet of the 
learned and pervade the mass of the communis, for the awn- 
mon improvement of mankind." 

It must be axiomatic that upon every question of im- 
portance to any human being it is the right of each individual 
to have the most intelligent opinion of which his capacity for 
understanding will permit. That being true, it is his inalien- 
able right to have acne;; to all (he arj;timcnls and evidences 
which any other human would be willing to supply, if permitted 
to do so. The denial of this right, through the moral cen- 
sorship of literature for sane adults, is an infamous tyranny. 

"All benefit of having evidence is lost if it comes into a 
mind prepared to make bad use of it. The habit of attaching 
one's self to one side of a question is a habit of confirmed 
selfishness, of low order, and immoral. By the habit of be- 
lieving whatever a man [under perverse associations of his 
emotions of approval) wishes to believe, he becomes in pro- 
portion to the strength of the habit, a bad neighbor, a bad 
trustee, a bad politician, a bad judge, a shameless advocate. 
A man whose intellect is always at the command of his sin- 
ister intere«t. is a man whose conscience is always at the 
command of it." 

iNTiaLECTUAL IMMORALITY. 

It irresistibly follows from these considerations that the 
only intellectual "immorality" which any man can commit, is 
that commilted by those who systematically procure the sup- 
pression of evidence, and in this regard, no exception can 
be made because the subject matter of the suppression is 
sexual. I therefore charge that the most "immoral" persons 
on earth arc those responsible for the suppression of miscalled 
"impure literature," If error and knowledge arc incompat- 
ible, then error and ignorance must be inseparable and the 
censors of literature must he the chief pcrpetualors of mental 
and moral stagnation. 

"It is a truth that men ought no longer to be led, and it 

96 



Dnj lUt-t: t;v ' 



UNDEKLVINC OONSTITlmONAL GUARANTEE OF FSEE PKESS. 

would be a joyful truth, if truth it were, that they are re- 
solved no longer lo be led blindfold in ignorance. It is a 
tntth that the principle which leads men to judge and treat 
each other, not according to the intrinsic merit of their action, 
but according to the accidental and involuntary coincidence 
of their opinions, is a vile principle. It is a truth that man 
should not render account to man (or his beliefs" — even on 
the subject of sex. 

Authority Destroying Liberty. 

All those who love liberty more than power, and have the 
intelli^nce to see in the present and future the develo[>ment 
of tyranny by our rapid growth of arbitrary power as mani- 
fested in our growing censorship of the mails and press; the 
spmd and development of "conslruclive contempt" of court; 
the progress of executive legislation at Wa&hington ; the asser- 
tion through government by injunction that the justice of em- 
ployers, or our economic system, is to be criticized only at the 
times and places, and to the persons who have the court's per- 
mission ; the laws creating a censorship over the opinions of 
all immigrants, and prohibiting the advocacy within some of 
our states of violent resistance of tyranny abroad; the pun- 
ishment of a Philippine editor for publishing our Declaration 
of Independence as conducing to insurrection ; the suppression 
of an American paper in Porto Rico for criticizing public of- 
ficials and denying the rightful opportunity to prove the 
Irutli of its allegali'm: (he official dcslniftton by the Mew 
York postal officials of several hundred thousand post-cards, 
which reflected on a candidate for public office ; the demand of 
the beef packers that magazines criticizing their busntes? be de- 
nied the use of the mails ; the arrest in Idaho of an editor for 
publishing (jue.ttions asking a petty mihtia-dcspot where under 
the Constitution he found the warrant for his acts during a 
strike-disorder — all these developments of recent years show in 
our cmmlry a condition, which, with many other circumstances, 
tends to the downfall of our liberties. Unless these tendencies 
are checked, and checked effectively, the time may come 
when the descendants of those who now will not defend the 
liberties of others may have to defend their own under ihc 
added difficulty of multiple precedents. 

The best way to prevent this is to re-establish, a.* the foun- 
dation of all liberties, all that freedom of speech and press, 
which is now in various ways abridged upon a half dozen sub- 
jects, and soon may be abridged upon still other subjects. 



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OBSCENE LITBKATUK AND OONSTITUTION.U. 1_^W. 
O.V THE RIGHT TO KNOW 

All life is an adjustment of constitution to envtronmcm. 
The seed dies, or has a stuated or thrifty prowth, according 
to the degree of harmonious relationship it effects with soil, 
moisture and sunlight. So it is with man : He lives a long, 
happy and useful hfe. just to the degree that his own organism 
functions in accord with natural law operating under the best 
conditions. It follows that a growing perfection in the knowl- 
edge of those laws is essential to a progressive harmony in the 
individual's conscious adjustment to his physical and social 
environment, and every one of us has the same right as every 
other to know all that is to be known upon the subject of sex, 
even though that other is a physician. 

Since a comparative fullness of life depends upon the rela- 
tive perfectii>n of the individual's adjustment to the natural 
order, and since the greatest knowledge of nature's rule of life 
is essential to the most perfect conscious adjustment (which 
is the most perfect life), it follows that our equality of right 
to life, liberty, and the pursuit of happiness entitles every sane 
adult person to know for him.*elf, to the limit of his desire 
and understanding, all that can be known of nature's processes, 
not excluding sex. 

Every sane adult person, if he or she desire* it, is equally 
entitled to a judgment of his or her own as to what is the 
natural law of sex as applied to self, and to that end is person- 
ally entitled to all the evidence that any might be willing to 
submit if permitted. It is only when all shall have access to all 
the evidence and each shall have thus acquired intelligent 
reasoned opinions about the physiology, psychology, hygiene, 
and ethics of sex. that we can hope for a wise social judgment 
upon the problems which these present. The greatest freedom 
of discussion is therefore essential as a condition for the im- 
provement of our knowledge of what is nature's moral law 
of sex. and is indispensable to the preservation of our right to 
know. 

It was precisely this right to know that the framers of our 
Constitution intended lo guarantee to us by those provisions 
against the abridgment of our freedom of speech and of the 
press. Prior to our American Constitutions, the English sub- 
ject had a liberty to hear, but it wa» an abridgable libertjr, 

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UNDESL^INC OONSTITITIONAL CUABANTKe OP PBER PRESS. 

existing as a matter of permission. The makers of our Con> 
stitution intended to guarantee to us an unabridgable liberty 
(o hear and lo read, thai is, they intended to insure us an un- 
limited intellectua) liberty as a matter of constitutionalty guar- 
anteed right. 

A SiKxiESTioN Fob The Timid. 

Those who reason sandy it seems must conclude that 
when any persons are old enough by law to enter matrimony, 
when any person is old enough by law to enter matrimony, 
which involves actual sex experience, then they should be 
conclusively pre.sumcd competent to choose for themselves the 
quantity and quality of psychic sex stimuli tliey wish to have, 
and whether it shall come through the means of good or bad 
art, literature, drama, or music. It is not clear to me why we 
should seek by law to control the «exual imaginings of those 
persons to whom it accords a perfect right to sexual relations. 
I can even sec force in the methods of the ancient Greeks who 
believed ihat dancing »nd athletics in nudity coniluced to 
health and honored marriage. 

Those who esteem mere psychic lasciviousncss a more 
serious offense than the corresponding physical actuality, lay 
themselves open to be justly accused of erotomania. How can 
we expect even married people to live wholesome lives so long 
as we deny them (he opportunity for any detailed discussion 
as to what tends toward wholesomencss ? 

By giving the widest possible scope for the disscnii nation, 
amoog adults, of the scientific literature of sex, and by furnish- 
ing appropriate instruction in our public schools, the present 
morbid curiosity would soon be dissipated and within a genera- 
tion practically all parents could be made competent and judi- 
cious instructors and guides for their own children. With this 
accomplished, you need never again fear the ills which are now 
dreaded, and the present sexual intelligence would have been 
so much improved as to insure a very general progress in 
pablic morals. Thus through the greatest liberty of speech and 
press, at lea.st for the instruction of all over i8 years of age, we 
may reasonably hope to secure for the next generation an en- 
lightened conscience as to all questions of sexual health and 
morals. Since minors bear a different relation to the govern- 
ment than do adults, it is probable that Congress and the States 



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OBSCENE UTEKATUKE AND CONSTITUTIONAL LAW. 

would have power to pass appropriate laws applicable only to 
sucb minors, even thoug^h present laws were held unconstitu- 
tional. However that may be, our present laws cannot be up- 
held without repudiating all those considerations which under- 
lie our constitutional guarantees for unabridged liberty of 
speech and of the press, nor without the judicial destruction of 
those guarantees themselves. 



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CHAPTER VI. 
OBSCENITY, PRUDERY AND MORALS." 

The advocates of our present censorship of literature be- 
lieve tliat their work is justified by the claim of its moralising 
tendcnc)-. It is my contrary opinion that to-day there is no 
organized force in American life wliich is more pernicious or 
more productive of moral evil in the domain of sex. than the 
very work which has come to be known as Comstockery. Of 
coune this judgmeni is based upon the broadest possible out- 
look, including both the remote and immediate consequences 
of that prudery which hnd.s its main stay in the legalized por- 
tion of it. This "moral" claim needs closer scrutiny. 

I assume that no healthy person, under perfectly natural 
conditions, ever intentionally inflicts injury except in the an- 
ticipation of 3 compensating benciil. If then every one pos- 
sessed health, infinite wisdom, and power to control those ex- 
ternal conditions which now often determine our conduct, no 
one would be vicious. If under such possibilities any one de- 
liberately injured self or another, it must be a mere matter of 
wantonness unexplainablc by any normal motive, and hence 
would conclusively evidence a diiicased mind. Thus viewed 
intelligence and vice are incompatible in healthy people, and 
ignorance is the efficient handmaid of vice, and the parent of 
▼ice-promoting. Every man who is adequately informed as to 
the consequence of his act, and having a mind sufficiently well 
trained to enable him accurately to see the remote painful con- 
sc<juence of his conduct and weigh this against its immediate 
pleasures, will never be vicious if being virtuous is within his 
power. If all possessed such intelligence, it would follow that 
the few remaining vicious ones must be either diseased or 
acting under external compulsions which make them vicious 
in spite of their judgment and desire to be otherwise. There- 
fore, general sexual intelligence must be the most efficient 
means of minimizing sexual vice in the healthy ones, and like- 
wise operate as the most efficient preventive of much of the 

'RrriHd tieoi Am. Imrnai rf Sucnui aad T^^motrffoi. 

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OBSCENE UTBRATURE AND CONSTITUTIONAL LAW. 

disease which results from, and in turn increases vice. It 
followi-s that every hindrance to sexual intelligence must be an 
aid to sexual vice, and all the sexual vices and diseases are 
chargeable to ignorance, and all of the latter is practic^illy com- 
pulsory, and most of it is chargeable to prudery Ic^^lizcd and 
unlegalized — that is Comstockery, 

The crowd, with its sensilive vanity and incapacity for 
critical thinking, so long as no personal material interests are 
involved, readily indorses whatever is labeled "moral" and 
claims an "eminently respectable" rating. 

An organisation devoted lo promoting the seemings of 
virtue and ihe substance of vice, and strong in the pietism of 
diseased nerves as well as political influence, is now asking ibc 
public to follow our present nonsensical legislation to its log- 
ical conclusion. If these unintelligent "dearies" have their 
way, we shall soon have nut only a sexless, but also a "smoke- 
less literature." This means that public libraries arc to ex- 
clude, and ultimately legislation is to suppress, all books where- 
in smoking or drinking is described. Soon all publications 
which use the words tobacco or alcohol will be excluded from 
the mails, and just as It^cally and "morally" as what is now 
excluded- "Moral" sentimentalizing is naturally expressed in 
righteous vituperation. Unenlightened minds readily mistake 
question-begging epithets for reasoning, and cowardly political 
adventurers enact its sentiments into law, thus bargaining 
away the liberties they are sworn to protect. 

WUEKE .VRB THE IMMORAL CONSEQUBNCES ? 

To the end that the unreason of our purists" claim of moral 
motive may be shown to be untrue, let us make a searching 
inquiry into the relationship of morals, literary fashion and 
our aversion to "obscene" literature. 

I never have met a purist nor any one else who would admit 
that his own sex-morality had ever been the least impaired as 
the result of reading "obscene" books. I never have found 
any one even endeavoring to prove that a single case of sexual 
depravity would not have been except for "ob«ene" literature 
or art. In my boyhood, and since. I have seen pictures of 
lewdness and have read some so-canc<l "obscene" books, and I 
cannot discover that it has injured me any, unless it be injury 
to have my sex-nensihilities considerably blunted, which I sus- 
pect may have come partly as a result of my study of sexual 
psydiology. 

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OmcCNITY, ntUDEHY AMD MORALS. 

Sir. Comslock is also an unconscious wilness to the harm- 
lessiicss of obscenities. In a recent report he informs us that 
for Ihirly years he lias "stood al the mouth of a sewer." search- 
ing for and devouring "obscenity" for a salary ; and yet he 
claims that this Iticrativc delving in "filth" has left him, or 
made him, so mtich purer than ail the rest of humanity that 
they cannot be trusted to choose tlieir own literature and art 
until it has been expurgated by him. Why is Mr. Comstock 
immune? ]t may be because he is an abnormal man. upon 
whom, for that reason, sensual ideas do not proihicc their nor- 
mal reaction — in which case it is an outrage to make his 
abnormity a standard by which, under an uncertain ^l;iiute, 
to fix what must be withheld from others. On the other hand, 
Mr. Comstock may be an average normal man, who has seen 
more "obscene" pictures and read more "obscene" books, and 
retained a larger collection of these, than any other living man. 
If it is true that his morality is still unimpaired, then it would 
seem to follow that "obscenity" cannot injure the ordinary 
nonnal human. 

There are no other conditions to the problem than the two 
above stated, and this proves that "obscene" literature 
and art are morally harmless upon all normal persons, 
and that if undesircd results shall anywhere manifest them- 
selves these are primarily due to abnormity in the individual 
and not to any evil inherent in the particular stimulation, which 
only brought the evidence of the abnormity to light. Tliis is 
illustrated by the fact that reading Ururle Tom's Cabin was 
the starting-point in making one man a .sex-pervert, an<I a book 
on surgery not connected with sex, as well as much religious 
exhortation lo "love God." has proved to operate as an aphro- 
disiac. Of this more will be said later. The "immorality" re- 
sulting from reading a book depends, not upon its "obscenity," 
but upon the abnormity of the reading mind, which the book 
doe.s not create, but simjily reveals. 

Tlie girl-child who slimtilates into activity the defloration 
mania of some old roue is not responsible for his assault upon 
her. and the child should not be suppressed or punished upon 
any such theory. A small boy. the sight of whom operates as 
an aphrodisiac upon a pervert, should not on that account be 
Hit>pres<ed or punished. If a book or a picture docs the same 
for a nymphomaniac or a satyr, the hook is not to blame: and 
for the same reason that we do not punish the children in the 

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above cases, so we should not punish the publisher in the last 
case. The desire (or pornographic htcrature is but the evidence 
that healthy and natural curiosity has grown morbid through 
the purist's success in suppressing the prtiper information, 
which would satisfy it in the norma) state and would be a most 
important factor in keeping it healthy. More voluminous and 
more free sex-discussion is therefore essential as a prophylactic. 
The public welfare and morality are concerned to discover 
and cure aoda] diseases and are not in the least concerned in 
the mere concealment of ilieir symptoms, and that is all the 
purist's present efforts amount to. 

UTERAKV FASHION AND UORAl^ 

There arc still other means of proving the falsity of the 
claim that social utility and public morals arc concerned in the 
suppression of obscene literature. 1 will now show that in an- 
other large number of instances it is a mere matter of un- 
reasoned moral sentimentalizing over words. — that is. over lit- 
erary style, and not over the ideas expressed or su^ested nor 
their moral consequences, but over the manner in which it is 
done. 

Even the United States Courts in their varied intellectual 
wabblings sometinies agree wilii me in asserting that the ob- 
■scenity test of literature is purely a matter of literary style. 
Read this decision: 

■'The problem of population, and other questions of social 
ethics and the sexual relations, may be publicly discussed upon 
such a high plane of philosophy, thought, and fitness of lan- 
guage as to make it legally unexceptionable. They may be dis- 
cussed so as to be plain yet clusie. .*o as to be instructive and 
corrective tvilhout bring coarse, iittgar, or seductive. But 
when such publication descends to a low plane of indecent 
illustrations and grossness of expression it loses all claim to 
respectability,"^ and therefore is criminal. But the "intd- 
Itgent" moralists of hysteria arc still so certain that it is ethics 
and not literary style which is in issue during most "obscenity" 
prosecutions, that ! must make a more careful analysis of the 
moral claim, or pretense, put forth in justification. 

Those exemplary moralists, the newspaper-scribblers and 
their purist adherents, think, or pretend, that they arc conserv- 
ing morality by mentioning sexual irregularity only by well- 
veiled but effectively pointed tn.sinuations. These verbal mor- 

<U. S. TL iluoun, it Federal RrporUr. p. «M. 

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UBSCKNITV, rXUDBRY AND MOR.U.S. 

alists will aniMUtice that a divorce has been "granted upon 
biblical grounds." when they mean "adultery," but for "moral" 
reasons would not u»e the word. Let us study the question a 
little and see if morality is really concerned, or if this, is a 
mere matter of expediency in politeness of Hy\t. and based 
upon moral sentimentalizing, instead of rational ethics. Per- 
haps I can best show the absurdity of the former contention by 
a series of different expressions, all conveying precisely the 
same thought — which shall be one that is generally considered 
as unquestionably moral — and then inquire where the immor- 
rality begins m the course of several successive changes in 
the mode of presenting, without changing the idea itself. 

T think I tn;iy assume that there is no one ,10 silly as to 
object even slightly to such a phrase as this; "Thou shall not 
forsake thy spouse and permit thyself to become a partici- 
pant with another in the initial act for the investiture of a 
human life." Perhaps no one would object as yet if 1 became 
a little more specific and wrote: "Thou shall not disobey the 
seventh commandment," From the fact that all journals for 
general circulation so studiously avoid the exact words of the 
commandment. 1 judge that many must deem it objectionable 
to print "Thou shall not commit adultery." 

Now then. I ask, how is morality differently concerned in 
Ihese different modes of expressing the same idea? Only the 
same identical thought is suggested to the mind in each case, 
and that same idea, no matter by what words symbolized, must 
present the same moral command notwithstanding differ- 
ent emotions are evoked by the different words in whichever 
mode of expression is used. That the one set of word-sym- 
bols is associated wtl]i emotions of approval and another with 
emotions of disapproval, concerns exclusively the style of ex- 
pression and has nothing whatever to do with morality. 

Let me carry this method a little further and sec if it must 
not ]ea<i us always to the same resiilt, even though it may be- 
come more difficult to keep i>ur "nioral" sentimental ism sub- 
ordinate to our reasoning faculties. Having now resolved that 
reason shall be >'our only jruidc. I will suggest a few other ways 
of expressing the seventh commandment. 

Let us su(>posc that some publisher should replace the last 
word of the ci>nm«ndmenl by others, still presenting the same 
idea and nothing else, and to that end let us suppose that he 
should use the stable-boy's mode of expression. Thus from 

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OBSCeMK UTKKATURB AND OONSTtTtn-lONAL LAW. 

sheer poverty in vocabulary one might use thai word which we 
all learned and used during our youth, "the most objectionable 
word in the linKlish language." The idea which the command- 
mcnt seeks to implant is unchanged and the morality of it is 
not in the least altered, and yet matt people would now demand 
a prosecution for "obscenity." Then isn't il a mere matter of 
literary style ? 

I might even carry this transition in modes of conveying 
the thought still further and suggest the possibility that some 
one might take the ten commandments and replace the verbal 
symbol of that which 15 condemned by a pictorial presentation. 
The morality of the idea and the idea itself are unchanged in 
every instance, and yet for thus expressing the prohibition of 
one of the commandments every one <that is, abnost every one 
who has come under the influence of puritan "civitiiation") 
would rise to demand the severest punb-hnient of the publisher. 
Although the idea of the seventh commandment would still be 
accurately expressed, but simply because it is done in an un- 
usual and unprudish manner, it would be declared criminal. 
But why? 

Again I ask. how is morality differently concerned in the^e 
different modes of expressing the same idea? Only the same 
identical thought is suggested to the mind in each case, and that 
same idea probably wouhl have and produce the same moral 
consequences whichever of the foregoing mo«les of expression 
is used, notwithstanding the difference in the emotions evoked 
by the different thought-symbols. All this only proves over 
again that "obscenity" is not in the idea conveyed, nor in 
differences as to the moral consequences of variously express- 
ing the seventh commandment, but wholly and exclusively in 
the emotions associated witli particular methods of symbolizing 
the thought. 

It is all but a special illustration of the nile stated by Pro- 
fessor Thomas when he says: "When oiice a habit is 6xed, 
interference with its smooth running causes an emotion. The 
nature of the habit broken is of no imponance. If il were 
habitual for grtrndes dantts to go barefoot on our boulevards 
or to wear sleeveless dresses at high noon, the contrarj- would 
be embarrassing."* So it is in literary fashion as welt. "The 
most objectionable word in the English language" has become 
so only in recent times. It is found in the unexpurgated edi- 
tions of Shakespeare, and was the word in polite use at his time. 

•Sri Old Sodily. ^ 101. 

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OBSCENITy, PRUDEBV AND MORALS. 

In thai «()ition of the Bible published in London in 1615, known 
as the "Breeches" edition (because of the use of that word in 
Genesis iii. 7). we find "the moM objectionable word in the 
English Iang\iage" at 1 Corinlhians. chap. vi. verse 9. In N. 
Bailey's dictionary, that same "most objectionable word in the 
English language" has only a figurative application to the pro- 
creative act and its meaning is "to plant." By rea.son of its 
coming into general u». those who wished to be different from 
the common people invented new words to express the same 
fact. When these new words cease to operate as a veil, be- 
cause their former figurative meaning has become literal, and 
Ihey have come into general use among the vulgar, emotions of 
disapproval will come to be associated with the new words. 
CMher words are then coined by the polite, and what formerly 
was "good form" now becomes obsolete and is denounced as 
"obscene," but rational morality is not in the least concerned 
with this change of literary fashion. No! It is only a matter 
of ethical sentimentalizing — of the morals of hysteria— and 
has to do only with modes of expression — that is, with literary 
style, and not moral consequences. The claim that the latter 
is its motive comes as a result of that very ancient and still 
very popular error of trying to objeetivize our emotional (sub- 
jective) moral estimates. Persons with trained minds recog- 
nize some difference between a literary style which is offensive 
to chaste people and so may reinforce the chastity of their 
lives, and that literary stj'le which, without the coarseness 
which excites aversion, seduces to libidinous conduct. Our 
literary purists usually fail to distinguish between an offense 
to modesty and the endangerment of chastity, which are two 
very different conditions, as different as vexation and tempta- 
lifla, or aversion and desire So it comes that their opposi- 
tion is too often the most vehement where the question of 
morals is least real. 

LITERARY VULGARITY AND MORALS. 
This is not a new thought, for it was expressed over 300 
years ago by the erudite Peter Rayle. and he furnished many 
illustrations in support, some of which will be reproduced. He 
says: "Such is the nice taste of our Purists, they blame one 
expression and approve another, though they equally offer the 
same obscenity to the mind, * • • The new whims of 
those, who. a^t T am told, begin to reckon the words plister 
and physic among the obscene terms, and use the general word 

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remedy tn iheir room, would be less unreasonable. The word 
glistere (Glister) was laid aside, as including too many cir- 
cumstances of tlie operation, and the word lavement took it* 
place, having a more Bcneral signification. But because the 
idea of the word lavement is become specific, and takes in too 
many circumstances, it will be quickly laid aside for fear of 
sullying the imagination, and none but general phrases will be 
used, such as J'etois daiis les remede?, tm rcmede lui sut ar- 
donnc, &c., which do not more particularly denote a glister or 
a purge, than a bag of herbs hung about the neck. These are 
certainly ver)- strange whims." 

Furthermore I believe it can easily be demonstrated that 
if tliere is aiiy ethical effect at all that then vulgarity of liter- 
ary style in dealing with sex subjects must be more conducive 
to puritan morality than are the refined insinuations of veiled 
phraseology. 

l.'p(>ii this question I am also fortunate to be able to quote 
judicial decisions in support of my contention. Here is the 
laoKuage of a United States Judge. "The most debasing topic 
may be presented in the choicest language. In this garb it is 
the more dangerous. Impure suggestions clothed in pleasing 
attire allure and corrupt, when bald filth would disgust and 
repel."' 

I want to elaborate this thought and in doing so vindicate 
my assertion that an ctjuaily strong case can be made to 
prove that superior mora! consequences may be expected from 
using vulgar phrasing in discussing sex. First let us get at 
the reason for this and later illustrate it by application to MX 
subjects. 

Suppose [ publish of a man the statement that he values 
his political principles so lightly that they are easily outweighed 
by small material advantage. That h so very delicate a way of 
saying that he will sell his convictions that one would scarcely 
feel any indignation over his moral turpitude. If on the other 
hand I denounce the same conduct of the same man by calling 
htm "a political prostitute" we at once feel more profouttd 
resentment, because of the emotions of aversion which are 
usually associated with the last word of the phrase and conse- 
quently felt for everything to which it can be applied. It is the 
same in discussing matters of sex. To do so in coarse and 
vulgar language is to arouse an aversion never experienced in 

the polite phraseology of the unobscere. It then morality is 
tl. S. n. SmiA. «( Fed. Rcfi. «n. 

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at all involved it must follow that vulgarity of s^Ic is more 
adapted to promote aversion to sensualism than is the imob- 
jectionable form of sex discussion. 

I-ETKR BAYLE ON OBSCKNITV. 

Here too, I could quote elaborately from learned authority 
in support, but since 1 cannot take tht- space to reproduce all 
of Mr. Bayle's erudite discourse entitled, "An Explanation Con- 
cerning Obscenities." I must content myself with quoting only 
a few more paraRraphs. Writing of those who use the veiled 
phrase to picture their nudities, he says: 

"The delicacy of their touches has only this effect, that the 
people look upon their pictures the more boldly, because they 
are not afraid of meeting with nudities. Modesty would not 
suffer them to cast their eyes upon them, if they were naked 
obscenities: but when they are dressed up in a transparent 
cloth, they do not scruple to take a full view of them, without 
any manner of shame, or indignation againM the Painter: and 
thus the object insinuates itself more easily into the imagina- 
tion, and is more at liberty to pour its malignant influence into 
the heart, than if the soul was struck with shame and 
anger. • • • • - 

"Add to this, that when an obscenity is exprefised only by 
halves, but in such a manner that one may essily supply what 
is wanting, lliey who sec it finish themselves the picture which 
sullies the im,ipnation; and therefore tliey have a greater 
share in the production of that image, than if the thing had 
been fully explained. In this last case they had only been pass- 
ive, and consequently the admission of the obsccnic image 
would have been very innocent ; but in the other case they arc 
an active principle, and consequently are not so innocent, and 
have more reason to fear the contagious effects of that object, 
which is partly their work. Thus this pretended regard to 
modesty, is really a more dangerous snare ; it makes one dwelt 
upon an obscene matter, in order to tind out what was not 
clearly expressed. • • » • • 

"This is of still greater force against the writers who seek 
for covers and reserves. Had they used the first word they 
met with in a Dictionary, they had only touched upon an ob- 
scene thing, and gone presently over that place ; but the covers 
they have sought out with great art. and the periods they have 
corrected and abridged, till they were satisfied with the fine- 
ness of their pencil, made them dwell several hours upon an 
obscenity. They have turned it all manner of ways ; they have 

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been windings about it, as if ibcy had Ixren unwilling to leave 
such a diannti^ place. Is not this ad sirenum scupulos con- 
sencscerc, lo cast anchor within reach of the syr«n"$ voice, and 
the way to spoil and infect tlie heart? It is certain, that ex- 
cepting those who are Inily devout, most of our other Purists 
are not in the least coticerned for modesty, when they avoid 
so carefully the expressions of our ancestors; they arc pro- 
fessed tfallaiits, who cajole all sorts of women, and have fre- 
qtienlty two mistresses, one whom they keep, and another who 
keeps them. Truly it Iwcomes such men very well to exclaim 
against a word that otTends modesty, and to be so nke when 
something is not left to be supplied by the reader's imagina- 
tion ! We may apply to them what Molicre said of a pretended 
prude : 'Believe me. those women who are so very formal, are 
not accounted more «-iriuous for it. On the contrary, their 
mysterious severity, and affected grimaces, provoke all the 
world to censure their actions. People delight to find out 
something to blame in their conduct. And to give an instance 
of it. there were the other day some women at this play oppo- 
site to our box, who by tlieir affected grimaces ilurtng the 
whole representation, and turning aside their heads, and hiding 
their faces, made people cell many ridiculous stories of them, 
which had never been mentioned if they had not behaved so; 
nay. a footman cried out. that their ears were chaster than al) 
the rest of their body." The men I «|>eak of. think only of 
making themselves admired for itie delicacy of their 
pen. • • • • » 

"This cannot be denied: Kay. women of an imperfect 
virtue would nm less danger among brutish men. who should 
sing filthy songs, and talk rudely tike soldiers, than among 
polite men who express themselves in respectful terms. They 
would think themselves indispensably obliged to be angry 
with those brutes, and to quit the company, and go out of the 
room with rage and indignation. But soft and flattering com- 
pliments, or at most such as are intermixed with ambiguous 
words, and some freedoms nicely expressed, would not startle 
them; they would listen to them, and gently receive the poison. 
A man who courts a maid would immediately destroy all his 
Iwpes, shoukl he grossly and filthily propose his ill <!csign ; he 
is a perfect stranger to the Art of Love, if he has no regard 
to modesty in the choice of his expressions. There is no father, 
but would rather have his daughters blusli tlian laugh at some 

110 



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Coogl? 



OBSCEMITV, rei'DESy AND HOIALS. 

Stories told in their presence. If they blush they are safe; 
shame prevents tlie ill effect of the obscenity ; but i( lliey laugh, 
it makes an impression, and nothing diverts the stroke. If 
they laugh, it is doubtless because the obscenity was artfully 
wrapped itp, and seasoned with an apparent modesty. Had it 
been grossly expressed, it would have excited shame and in- 
dignation. Farces in our days arc more dangerous than those 
of our ancestors; in former limes they were so obscene, that 
virttious women durst not appear at them; but now they do 
not scruple to see them under pretence that obscenities are 
wrapped up, though not in impenetrable covers. Arc there 
any such? They would bore them through, were they made up 
of seven hides like Ajax's shield. 

"If anything could make La Fontaine's Talcs very per- 
nicious, it is their being generally free from obscene ex- 
pressions. 

"Some ingenious men, much given to debauchery, will tell 
you that the satires of Juvenal are incomparably more apt to 
put one out of conceit with !ewdnes», than the most modest 
attd most chaste discourses that can be made against that vice. 
They will tell you that Pctronius is not so dangerous, with all 
his gross obscenities, as he is in the nice dress of Count de 
Raliulin ; and that the reading of the book entitled. L«s 
Amours deji Gaules, uiU make gatlatUry much more amiable 
than the reading of Pctronius. • • # • 

"I know the Stoics laughed at the distinction of words, and 
maintained tlmt every thing ought to be called by its proper 
name, and that there being nothing dishonest in the conjugal 
duty, it could not be denoted by any immodest word, and that 
therefore the word used by clowns to denote it i» a» good as 
any other. • • • • 

"If chastity was inconsistent with impure ideas, we sliould 
never go to church, where impurity is censured, and so many 
banns of matrimony are bid : we should never hear that office 
of the Liturgy that is read before the whole congregation on 
a wedding-day: we should never read the most excellent of 
att books. I mean the Holy Scriptures ; and we should avoid, 
as so many infectious places, all the conversations where people 
talk of pregnancies, childbirths, and christenings, Ima gjna- 
tion is a rambler which runs in a moment from the effect to 
the cause, and finds the way so well beaten, that it goes from 
one end to the other, before reason lias time to stop it."* 

•Baylf'* nii<oric4l ■nd Crillcat DIctloiurr. p|>, B«S lo MO. edltlnii ol 1S>T. 

Ill 



DlCUItltity V..J 



OOJ^lC 



OBSCP-NB LITERATURE AND CONSTITUTIONAL LAW, 

All these coiisideralions prove again that literary vulgarity 
and immorality are not at all related to each otiier as Purists 
assert. 

ON UORAL SBNTIMSNTALIZINC* 

No habit of human thought is more universal and more 
pernicious than that by which the social utility, or evil, of De- 
duct is measured by the intensity and kind of the emotional 
states which wc associate with it. Most of humanity still ap- 
proves all human conduct which induces agreeable emotions 
and likewise as-^nmes ihitt the degree <.>{ Iwilness may be .ic- 
curaiely measured by the intensity of the resentment which is 
felt towards those whose act is to be judged. Tliis is moral 
sentimentalizing, though often it is characterized by more pre- 
tentious narne^. Scientific or rational ethic* is the very antith- 
esis of this. Instead of measuring moral values by "moral" 
emotions, the scientific mind limits moral emotions by moral 
values which are measured according to objective standanjs. 

Where the emotions are most concerned there the check of 
right reason is least effective, and moral sentimentalism. for 
that verj' reason, is most potent and mo.st misleading. Thence 
it comes that in determining statute laws and ethical creeds, 
regulative of sex-conduct, we are more often controlled by the 
vehemence of hysteria, than by calm judgments derived by 
the scientific method. Kven those who live natural lives with 
sound bodies, and therefore have too healthy minds to indulge 
themselves in fr;intic moral sentimentaliKing, yet readily suc- 
cumb to the maniacal persistence and vehemence of the moral- 
ists-of -diseased-nerves. This is so because even the healthy 
minded ones lack clear insight to a rational ethics, and there- 
fore they cannot frame to their own satisfaction arguments 
sufficiently convincing to afford the courage of resistance. 

Here do we also find the explanation for those conspicuous 
discrepancies between statute law and actual life, that is. be* 
twecn public pretense and a personally jusiifierl secret con- 
iluct. On the whole, in such matters as sex-ethics, our un- 
coerced behavior is quite as likely to be in accord with a harm- 
less and hccilthy naturalness as arc our pretensions. The latter 
arc apt to be controlled in such manner as to avoid the censure 
of the most boisterous sentimental izcr of the community, who 

■Cnndrntn) fnHn Tkt Paeitit Uetictl leurmal int Nov,, IMT. 

112 



Ditii'EMCv V,."»( 



UUSCKMTV, PRL'UKItV AND MORALS. 

in turn are th« least safe guides to a rational ethics. In tlie 
matter of sex^ethics thi« means that, as to their pretensions, 
those who possess only an ordinary healthy bodily mechanism 
and a healthy mind not hi;^hly trained will be cowed into an 
acquiescence with others who arc possessed by abnormal sen- 
sualism. 

The only time that the subject of sex becomes a matter of 
real controversy before the public is when the excessively 
sensual of different modes of thntighi are pitted against one 
another. As illustrations we may point to the past contests 
between the Mormon polygamists, or the Bible Communists 
of Oneida, on the one hand, and prurient prudes and senti- 
mental monogamists on the other. Can any one recall s single 
real argument for social utility that has ever been advanced 
upon either side? It is all mere violent outbreaks of moral 
senlimentahzing. expressed in dogmatic verbalisms an<i qnes- 
lion-begging epithets, all inspired by diseased nerves. And 
yet we allow these hysterical yelps upon both sides to be the 
only views that ever achieve public expression or readi the 
legislative and judicial car. No wonder then that the few who 
can or try to reason, even about sex-ethics, stand aghast at the 
achieved results of such mania, and the general public remains 
densely ignorant in spite by the "arguments" of mere "right- 
eous" vituperation. Thert- is room for difference of opinion 
upon many problems arising from sex. and it is an outrage 
that tJicsc are never allowed to be publicly and fundamentally 
discussed by the clean-minded with superior capacity. The 
stupid and untrue dogmatism winch is tolerated, and the pas- 
sionate outbursts of .salacious prudes and voluptuaries, which 
come upon us in spite of repression, only make bad matters 
worse. 

The abnormal aversion to healthy sensualism is never 
founded upon sexual indifference, hut alway.-i the reverse. 
Acute croio-phobia differs but slightly in degree and not at a\\ 
in its essence, from prudery. I remind the reader that I am 
writing of the real prudery, and not its ignorantly parroted imi- 
tation. 

Thus understood, all genuine prudery is always the mani- 
festation of excessive sensuality, coupled with a proportion- 
ately extravagant, fear-created, desire to coi>ceal it, all inducing 
violent emotions of aversion, either simulated or real. 

The kinship of the relation between insanity and health, 
on the one hand, and moral sentimentalizing and rational ethics 

113 



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OBSCENE LITERATURE AND CONSTITUTIONAL LAW. 

on the Other, is far more real than apparent. From mwli'Sty. 
through prudery, to acme eroto-phobia, is but a difference of 
degrees in the intensity of emotional aversion. All these dif- 
ferent tlegre«s may tre excited in difTereiH person* by the same 
objective stimulus, wliich, however, will leave one who is com- 
paratively indifferent to sex, without any consciousness either 
of modesty or of sliame. 

Moderate modesty, like milder forms of mono-mania, is 
due to a lost potiwciive, imposed by perverse cducatimi. A 
sex-centered attention thus induced, easily destroys all capacity 
for seeing the obscssinf; subject -matter tn its right proportion 
to related objects. W'hen to this we add tliat emotional inten- 
sity and certitude, which arc the product of diseased nerves, 
modesty becomes eroto-phobia. The degree of prudery is usu- 
ally the exact measure of the individual's hypcrscnsuatism. 

So then tt conies to this, tliat modesty, like insanity, in the 
kind and degree of its sensitiveness, is dependent primarily 
upon subjective cfmditioiis. Each person's modesty is sensi- 
tive to lascivious suggestion, just to the degree that such in- 
dividual is sensually obsessed, and the degree to which the 
sexual nerve centers arc diseased. All prudery which is not a 
mere stupid mimicing of others, that is all genuine prudery, ts 
therefore seen to Ik founded upon excessive lewdness. 

Abnormal .'.cx-scnsitiveness always produces sex over-valu- 
ation, either of the beneficence or the sinfulness of the sensual 
appetite. Similarly we see that intense religious enthusiasm 
always conduces to the apotheoses of love, and sex. and to 
excessive venery. cither of induljjence or suppression. \\Tiere 
religion seeks to spiritualize sex-passion, science ralionalices it 
As a^inst moral sentimentalising, a scientific ethics traces 
causes and results and builds moral stamlards accordine to 
ascertained, material, social consequences. 

AH emotions, including those which are gener.ally classified 
as "moral." have varieties of intensity according to ones en- 
vironment, education and healthy or diseased condition of the 
nerves. Hence the same fact will produce more intense emo- 
tions of approv?il or aversion in a hysterical person than 
in a healthy one. Again, the intensity of the emotion 
evoked by an object is tn inverse ratio to [he duration of the 
Mimulation. That to which wc have become accustomed is not 
so shocking as it was when it first itHerfercd with a fixed con- 
trary habit of thought or of life. So it comes that mora! senti- 
mentalising varies not only as between different individtials, 

114 



Dn;ij:t.-i:t;vV,..»( 



OBSCENITY, PRUUEBV AND MOR-\LS. 

but also differs at different times in tlic same individual. From 
these (acts arises the danger of submitting to the ^tdancc of 
our "mora!" feeling. 

The "moral" emotions are intense as the nerves arc dis- 
eased. The doctrine that men may rightfully claim to know 
because they feel and to be firmly convinced liecausc strongly 
agitnted, finds its extreme of absurdity in this, that the certi- 
tude of a feeling-conviction often reaches its highest degree in 
the obsessive illusions of the insane, and the absurd conduct of 
hysterkals. 

OONSCISNCB AN UNSAFK CUIOR. 

[ndividually and racially, according to its pleasurable or 
painful effects on them, men come to associate some conduct 
with emotions of approval and other conduct with emotions of 
disapproval. In these matters each individual is a law unto 
himself, and only an unconscious sympathetic imitation induces 
the superficial appearance of similarity. As these emotiimal 
"moral judgments" become habitual by frequent repetition, the 
unreason of their origin becomes progrcs*ivcly less conspicu- 
ous, and when lost sight of tunnatiity enthrones this moral sen- 
timentalizing on an imaginary pedestal oiUside ihc brain, calls 
it "conscience." and now the emotional association, perliaps 
founded on diseased nerves, is believed to constitute an in- 
naie and therefore infallible moral guide. Tlicn "good peo- 
ple," ever confident in the inerrancy of their feelings, begin to 
regulate Iheir neighbors" c<>n<hict. especially their sex-conduct, 
because our emotional nature is more involved therein, and 
because upon the subject of sex-ethics we have, on that ac- 
count, been less accustomed to reason than upon any other sub- 
ject. Here moral sentimentalising is most natural and most 
pernicious, precisely because it is here sure to be least "tainted" 
by righr-reason. 

The mistake in all this popular method of arriving at "mor- 
al truth" lies in (he fact that, like the insane, we ascribe to con- 
duct those qualities which are mere associated emotional states 
of the perceiving mind. To cease the objcctivizing of our emo- 
tional "moral judgments" is the beginning of rational ethics, 
and the highest di-grcc of it will have been reached when all 
moral sentimentalizing sliall have been al>olii*hed and each in- 
dividual, from his own perfect knowledge of natural law, in 
which I include natural justice, shall no longer have the desire 
to live contrary to it. 

We shall never be able to rlispense with those menial proc- 

IIS 



DmiJiui! uv ' 



.OOi^lC 



OBSCENb LITLRATURE AND CONSTITUTIONAL LAW, 

CSSC3 which produce what wc call conscience, but we will ap- 
proach a higher and belter hmiianity only in so far as we abol- 
ish from our own lives the authority of that conscience which 
is only moral sentitnentaliztng, anil in lieu of that authority en- 
throne a pure cold lo^c machine which, without artificial hu- 
man restraint, shall control our self- regarding action according 
to natural law. and our .social conduct according to ihe nearest 
approximation to natural justice of which our minds arc ca- 
pable of conceiving. When wc have abolished moral senti- 
mentalizing, have acquired exact and complete information aft 
to what is natural law, and what is required of u& by exact 
natural justice and when we shall live in perfect accord with 
these requirements, the millennium will be at hand and govern- 
ment will cease to have any functions to perform. Until then 
wc can only work with the view of approximating this unat- 
tainable ideal view, each of us striving to promote il in others, 
while endeavoring to realize it in our own lives. 

It is unreasoned moral sentimentalism and not ethics whi^ 
upholds the laws under discus'^ion. Il was an unreasoned 
moral sentimentali&m and not ethics which in the past ages up- 
held other literary censorship and abridged intellectual free- 
dom. It was unquestionably the intention of the framers of 
our constitutions to make that impossible. Shall our constitu- 
tions be judicially amended so as to perpetuate and make pos- 
sible the further extension of mere psydiologic crimes? Thai 
is the all-important question. 

The evil consequences of this moral sentimentalism, and 
prudish snobbery cannot be overestimated. Here I cannot ad- 
equately exhibit it but I can point to a few concrete facts to 
show how our compulsory ignorance through legalized prudery 
works for human ill. 

IGNORANCE OK THE MEDICAL PROFESSION. 

It is an unwarranted superstition that the members of the 
medical profession arc safe J'^d intcUigeitt gindes and in- 
structors in matters of sex. They have adequate knowledge 
to give -superficial instruction to children about the physiology i 
and hygiene of sex, and they know a little about the most 
common forms of venereal infection. But when it comes to 
dealing with Ihe intricate social problems involving sexual psy- 
chology most of them are in a wilderness of impenetrable dark- 
ness and ignorance, and the few specialists, who have gathered 
a few nuggets of truth from years of work with sexual psy- 
diopaths, are seldom given an opportunity to spread that 

116 



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.00^ Ic 



OBSCEHITY, FBUDBRY AND MORALS. 

knowledge even among their professional brethren. The re- 
sult is that upon the gravest social -sex-problems of the future 
the average physician is more ignorant than many laymen with 
a variety of "worldly" experience. I charge this ignorance 10 
be a fact, and to be due almost entirely lo prudery, and a 
potent cause of vice. The charge is a grave one, and I must 
adduce some proof. 

] will begin by quoting from a recent Medical Journal 
showing the deliberate suppressing of sexual discussion even 
within the profession, and also showing their reason for it. 
Tljc.se arc the words of Prof. Wm. F. Waugh : 

"IVe do not approve of making a feature of discussion and 
imtstigation of the sexual relations. We fully grant their im- 
portance and the need of their study. Men and wonun are 
cursing Ihf day they were bom, are fighting, going insane, 
driiring others insofie, making themseh'es devils and earth a 
hell, all for want of the knowledge that can only come from a 
free and untrammelled discussion of sexual physiology and 
pathology, by those who are competent. But this is exactly 
what is not to be had under present conditions. No such dif 
eussion is possible in any publication that circulates by post to 
a general public: hence any attempt in that direction is sure to 
be futile. It is not that the attempt to carry it on will surely 
bring trouble — to a man of the stuff before us, martyrdom 
holds out allurements not to be resisted — it is because of cer- 
tain failure and wasted efforts sadly needed in directions 
where success is possible. Our objection is not prudent cow- 
ardice but calculating utilitarianism. 

"Tliere is this to be said about discussions of sexual mat-. 
ten: as one goes further into the topic, his viewpoint alters. 
Thf limits he first set to what is permissible in the discussion 
recede, until things appear as a matter of course, that at first 
we would unhesitatingly hatT denounced as obscene. Then 
he is called to face a charge that is in itself a disgrace. And 
we sympathize with a friend who asked for vaccination be- 
cause he preferred to 'die of a clean disease.' Once lltere was 
a soldier, noted throughout his division for his many heroic 
exploits. Time and again he braved and escaped dangers thai 
daunted the boldest, but he seemed ever to hold a charmed 
life. At last be was tremendously kicked by a big mule, and 
Ihij time dealh was inevitable. When informed of his fat«, 
to the amazement of all he burst into tears. Seeing the con- 
tempt on his comrades' faces, he exclaimed: 'It's not that. 

117 



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I 



Oa^CKNB UIBHATURE AND tOS&TlTUTION.VI. LAW. 

hoys; not that I am afraid to die; but after all th« high and 
mighty chances of dying I've had. to be kicked to death by 
an infernal long-eared heehawing son of a jackass I' Same 
as to Comstock.'" 

I have had it upon the authority of one of the most widely 
known scientist* of America, that many other Medical Jour- 
nals hold Eubstantiatty the s»i)c attitude to the discussion of 
sexual topics. The silence is the natural result of an uncertain 
statute, conferring arbitrary power upon stupid humans by the 
uncertainty of it> criteria of guilt. Ucing ignorant himself, the 
physician, like our moralist for revenue, profits by the general 
ignorance and so joins in the opposition to sexual intelligence 
by a postal censorship. 

In the Mcdital Council for October, 1908, is an article on 
"How shall we advise our boys on the question of sexual and 
moral prophylaxis?" by I*rof. Frederic R. Sturgi*. He is the 
author of "Sexual [)ebility in Man." other books and numer- 
ous essays in medical journals. He was formerly Qinical 
Profe^*yr of Venereal diseases in the Medical department of 
the University of the City of New York and of the Post 
Graduate Medical College; sometime visiting surgeon of the 
venereal iHvi.>ion of the city hospital, Blackwell's Island, and 
has attained f^eat distinction in his profession. (See Phy- 
sicians and Surgeons of America, Edition of !(>o6. p. 326) 
When the ^^alul^cript was first submitted to the editor he was 
in doubt as to its availability, because the uncertainty of the 
statute made it impossible for him to find out if it were mail 
able. In this peri>lcxity he snbmitled the manuscript to the 
?ost Office authorities, and was told that it was not mailable 
.After expurgation it was published as alwvc indicated. .So it 
has now come to pass that a layman to the medical proie*- 
sion occupying a clerical position in the Post Oflke Depart- 
ment decides what the doctors may be permitted to publish or 
read upon sexual subjects. Future Reneiations will look 
back with amaj-emcnt at the cowardice and stupidity of a pro- 
fession and <if a general public which submitted without pro- 
test of such a censorship over the lilcrar>- output of one of the 
most distinguished specialists in the United States. Had Dr. 
Sturgis told the lie that no sexual irregularities exist, or had 
he advised ever)- one to lie to their sons about the subject of 
sex. so as not to nm roumer to the moral sentimentalizing of 
our ascetical theologastcrs. his falsehoods would have passed 

■Am. )M>ual of <.1>..k»I Ucdinnr. M,,, iwr. frot. Vm. V. WMik 

118 



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M 

Google 



OBSCKNITV, PBUDKRV AND MOR.US. 

tlie censorship. But having a wide experience in such matters 
he preferred to portray our human sexuality as he found it, 
and to tell parents to tell the whole irulh about it to their sons. 
Till* M the unpardonable sin in the code of our moral tinkers 
for revenue, and so one physician may not even advise another 
to tell his >on the whole truth as it in conceived in the mind of 
the specialist. Thus our purism most efficiently promotes the 
vices, the sMppression of which brings prosperity to our moral- 
ists for coin. 

POPULAR IGNORANCE. 

Reform organizations such as the Woman Christian Tcin- 
pcrancc Union, and ihe National Purity Federation, have 
been for years agitating the question of giving instruction in 
the public sdtools a« to the hygiene and physiology (also 
theology) of sex. because they believe such instruction a mor- 
alizing force. Some members of ihc medical profession are 
falling into line as is shown by the org^inization of the Ameri- 
can Society of Sanitary and Moral Prophylaxis, and kindred 
societies, and by such act on %s \\z& recenlty taken by the Illi- 
nois Medical Association.* But here again prudery makes the 
accomplishment oi this pl»n impossible, tirst because prudish 
public sentiment won't tolerate such instruction, and secondly, 
even if it did, thanks (?) be lo prudery. Ih<rre arc none willing 
or competent to teach. Dr. Helen C. I'utman. of Providence. 
R. 1., quotes two leading educators, in sympathy with sexual 
education, as saying: "I know no men in the schools of my 
city and but few women, wh<mi I would he willing to have 
talk on sex matters to my boy and girl." Dr. Putman adds: 
"1 could quote others," She calls attention also to the fact 
that prudery has excluded the subject of sex hygiene from 
text books, and from the curriculum of the normal school, 
and consc<)ucntly from the teacher's mind. She then shows by 
other investigations how the IcgalizL-d and untegalixcd prudery- 
have produced a condition of ofTairs where none are cotn- 
pelciit lo iu^troct,* 

The titcratnrc upon the <ul)ject of 5ex which ii prepared 
for general consumption is practically all either useless or 
[icniicicus, and always from prudi'h causes. On the one Ivand, 
brcan-e i-nti^ery comiHrU Rcncral i^nirancc. we have developed 
a class of physicians who thrive by misinformation which 
•cares the ignorami, systematically created by us. into Ihe net 
oi til- 

. -rt, Oti. lak. 1*04, tr- »* w «oo. 

MlvMon Ui,JieU >nd !tar«lca> ;»iir*at. firV- »M. IVIT, u- 111 

119 



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OBSCENE LITBKATURE AND CONSTITUTIONAL LAW. 

Another class, who are almost as culpable, systematically 
obtain money under false pretences by advertising and selling 
sex-books. This class of books are sold o" false rqircscntation, 
more or kss definitely made, that they will give some helpful 
and detailed information upon one's concrete personal prc4>- 
lems. Instead of answering the questions, which as young 
men and women we wanted answered and had a right to know 
about, the purchaser receives a little mora) sentimentalism. 
some stupid and often truthless dogmas, which, together with 
some that is really true, is promptly disregarded, because no 
convincing reasons accompany the informatioiL After the 
reading of such "purity" books, so well filled with vague and 
mystifying phrases, which mean absolutely nothing to those 
who do not already know what is sought to be hinted at, one 
is convinced that he has been robbed of his money without 
being enlightened, and the young come from the reading of 
these books feeling more mystified and helpless than ever be* 
foi^, over tlje personal problem. 

Of another class of books, Pres. G. Stanley Hall, of Clark 
University, has this to savT "Realiiing that Go<! and nature 
have wrought an indissoluble bond between love and religion, 
these writers rely upon conversion, confirmation, prayer, or 
new resolutions, while sonic add an appeal to the sense of 
honor. There can be no doubt of the good intention of the 
writers of this class, nor that they have done good, but to me 
they all seem to have more zeal than knowledge." The ab- 
sence of knowledge is again due to the pnnlcry which makes 
the acquisition of satisfying knowledge difficuh or impossible. 
He might also have quoted Jonathan Edwards, Bishop Laving- 
ton. Rev. S. Baring Gould, Dr. Spurgeon, and innumerable 
other clergymen to the effect that many of this class of re- 
formers are ignorantly and unconsciously developing in others 
an abnormal lewdness, by the very excesses of emotional ca- 
thusiasms which they work into their methods of religious re- 
form,'" 

Dr. Hall continues thus: "The last class of books that 
stand out clearly are writings that appear to be by mothers or 
atints, for boys, and which are pervaded by sentiment, poetic, 
religious, and icstlictic, the interests of posterity and the chiv- 
alry which the true gentleman should feel for those of the other 
sex. Such appeals may effect giris, but the boy, at the callow, 
pin^feather age of fourteen, is rarely esthetic, and if at this 

■^ReliglDO (nd Smtualllm" in vol. 1, p. t«. ot Amtr. Jour, ef JTWimhi 

120 



Dis'i-eiicv V-1* 



OBSCENITY, PHUDKRY AND UOSALS. 

age be can be truly called a perfect gentleman there is some* 
thing wrong with him," 

Thus far I approve of Dr. Hall's criticism of purity lit- 
erature, made almost useless by prudishncss. Now lei me 
show you bow the same cause has also impaired tlie moral 
good which he designed by his article." 

He i.'s trying to enlighten parents about what they must 
Ull their children. The boy must be told of "the fact that 
not one, but both, of the most prevalent diseases due to im- 
purity of hfe arc of the gravest danger." Parents already 
familiar with these diseases did not need to be told of their 
danger. His article was written for that great mass who 
know nothing about them and who on reading Dr. Hall's arti- 
cle might wonder whether he meant the croup, scarlet fever 
or small-pox. Had he expressed his thought in the homely 
words we probably all heard in our youth, the uninformed 
reader whom he was trying to reach might have understood 
what he meant. But if he had found a publisher at all, legal- 
ized prudery would have sent him to jail. Had he used the 
scientific words gonorrhea and syphilis, the reader might at 
least have found out what he meant, by using a medical dic- 
tionary. But, as it is, prudery so dominated even this eminent 
Kientisl that he wrote a message designed to curtail vice, but 
which in large pari was made useless by the avoidance of 
direct phrase and scientific exactness, such as he would have 
used in discu-tsing every other subject. Thus again rjoes pru- 
dery encourage vice. 

Not iiMig sit;cc 1 attended a meeting of the American So- 
ciety of Sanitary and Moral Prophylaxis, where Professor 
Wilder, of Cornell Medical College, was announced to lecture 
upon the ijcsirabilily of educating the young in matters of »ex. 
He had prepared a discourse to show the great evils coming 
from ignorance. When he got to that portion where from 
medical journals and kindred sources he apparently was pre- 
paring to make concrete statements of facts about venereal in- 
fection and its result, he became visibly embarrassed, and 
scarcely having begun he announced that he hadn't the courage 
lo proceed accOfding to his original intention. Here then is a 
scientist of international prominence, so overawed by a con- 
sciousfKSs of the general prudery which has developed with 
and from our legalized prudery, that he must withhold from 
an audience gathered to receive it information of the greatest 

li|,i::in' Home touinil. Stpl., IV07. |>. lb. 

121 



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OlIdCeSE LITERAIUBE AND CONSTITUTIONAL LAW. 

value. Tlie resultant ignorance upholds lhc»e taws, promotes 
crime and disease, and these are a direct evil result of our le- 
galized prudery. 

The moral snobbery and l^aliud prudery of the profes- 
sional vice-hunter and moraltjit for revenue is based wholly on 
stupid moral scntimirntalizing, and not at all upon any rational 
or scientific ethics, and has made it impossible for parents to 
quahfy themselves as instructors for their children, and tho&e 
children are kepi in ignorance upon a subject where ignorance 
is the most potent for evil, and yet that ignorance is lauded as 
a virtue, though it very often leads to ruin, as is shown by the 
records of our insane asylums. 

These miscalled "purity" associaliong primarily destroy 
the opportunity of all for gratifying a healthy and natural cu- 
riosity and thus of necessity they aid in developing morbidity 
in relation to cex. Out of this morbidne-u. created mainly 
through their eflTons. comes the market for that erotic and 
prurient literature which the salaried vice-hunters profess to 
deplore, and which they unconsciously foslcr and gladly profit 
by. With all restrictions removed and general opportunity for 
pubiic-.school education in sex matter*, the secitirl c^^'ieration 
would be so healthy-minded as to destroy all market for the 
stuff which the "purisls" profess so much to abhor. 

In France, although general sexual education iit wanting. 
It is openly asserted that the k'"c3"^'' P^^ of the demand for 
prurient literature and art comeit from .\meriean and English 
tourists, and customers, [ am aw.irc that iome of the "pur- 
ists" profess to believe that llicre »h»uld be education about 
matters of sex, given to young people, hut they invariably mean 
by this the theology of sex snA not sexual science, which is a 
ver)' different ihing. In my view every human being should 
have an unlimited opportunity for knowing all thai there is to 
be known about every part of the human anatomy, and that 
to preach against such intelligence, or impcle its .ipread is 
always an outrage and always productive of evil. 

Another way in which this evil manifests itself l\<* in 
this, that llie "purists' " efforts, by their insane over-valuation 
of sex imponance, always destroy people's perspective, mtich 
to the public injury. If Ih^re had been no attempted interfer- 
ence wilh "Mr>. Warren's Profi-vjion," most pi-oplc would have 
seen in that play only the presentation of a social problem, by 
the consideration of which all of the visitors to the lltc&ter, *nd 

1?? 



Die li^en cy ' 



DltSCKM'IV, PKl'RFJtV AND U08ALS, 

society at Urge, mighi have profited. After and by virtue of 
the stupid protest of morbid prudes, who were so obsessed by 
their own lewdness (hat they could see nothing but the sensual 
features of the play, it at once became impossible for the great 
mass of people to see any moral problem in it. From that 
time on the)' were induced by the very outcry of the "purists" 
(o concentrate their attention on a watch for only its sensual 
stimuli. The same thing is true of their efforts to suppress 
the nude in art. By their very effort lewd moralists for rev- 
enue make it impossible (or a great many people to see any- 
thing but the sensual (e»Iures of a picture, whereas, if left 
alone witliout ;his interference from prurient prudes, which 
in such matters always misdirects the public attention, it would 
be possible for most people to see the beauties of form and of 
physical perfection. 

Let me say right here that I am not devoting myself to 
criticising Mr. Comstock for any mistakes he may have made 
in tl»e exercise of an arbitrary power, which an outrageously 
ODcertain criminal statute seems to vest in him. and I have no 
patience with ihose critics of Comstockery who arc devoting 
themselves to crilicism of Mr. Comstock, instead of llie condi- 
tions which he helps to perpetrate and which make him possi- 
ble, and prosperous. My cotii])laint is most with those stupid 
people who by their moral scntimentaliziug are supporting the 
arbitrary power which authorizes his mistakes. 1 am not con- 
cerned in the least as to how that arbitrary power is exer- 
cised, whether wisely or unwisely. I am very much concerned 
that llie arbitrary power itself shonid be destroyed, by making 
the law conform to the constitutional requirements of cer- 
tainty in the statutory criteria of guilt. Mr. Comstock is simply 
exercising his ordinary right of being a moralist for revenue 
under the opportunities offered by a stupid public. 

sex IGNORANCE AND INSANITY. 

This. thoi. brings me to the more unplcas-ant features, which 
relate to sexual insanities, ami venereal infection. No one 
worthy to be counted a worker for improved morals can over- 
look these most im|>or1ant phases of the sex problem. I know 
only the use of the plain, direct, and scientifically cha.ste man- 
ner of speech. It is only by the use of such that I can proceed, 
while I briefly recapitulate some concrete facts known to the 
meiiical profession, and by me culled from standard medicit 
authorities. By n-ery known <cicnti6c code of ethics, thi 

123 



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OBSCBNB UTERATUKE ASD CONSTITUTIONAL LAW. 

morality of conduct is to be judged by its injurious consc* 
quences. Upon the record that follows, and much other kin- 
dred material, these dAmtuthle facts are all the consequences of 
sexual ignorance, and this in turn is mainly the consequence of 
our legalised suppression of sexuiil intelligence. Tlierefore I 
charge our "moral" ccnsorsbiji of literature to be the most 
pernicious influence in our American life, and our "highly 
respected" prurient pruik-s ihe most immoral people in 
America. 

Picque found a proportion of 88% of gynocological affec- 
tion among the insane, and some have found even more. It is 
quite generally estimated (hat of all insanities 66% involve the 
sexual mechanism or functioning. Where sex is the primary 
cause of the ultimate derangement, sex -intelligence usually 
could wholly preclude the evil consequences, or find an early 
cure. In other cases where there is some sexual derangement 
it is at first but a symptom of mental ailment, only in turn to 
become an aggravating cause. Here a greater intelligence on 
the part of frien'Is and family, such as the general dissemina- 
tion of the literature of sexual science would produce, will 
enable them to understand what now seems dubious, and impel 
them to apply much earlier for medical aid, when it would be 
far more efficacious. Legislators and courts now treat the 
sex-pervert as a criminal, thereby discrediting both our in- 
telligence and our humanity. In an enlightened community 
we will know that usually such are diseased, and thus be 
prompted to restore them, rather than wreak vengeance upon 
them. 

SUFFERING OF THE VICIOUS TO SAFEGUARD VIRTUE. 

A study of venereal infection gives us some appalling re- 
sults. Every year in our country perhaps hundreds of thou- 
sands of persons become its victims. Owing to public ignor- 
ance and a mawkish semimentalism. many of these persons 
cannot secure treatment from the regular physician, nor will 
be received in many hospitals. It is argued that to make them 
suffer the penalty of vice is the best safeguard to virtue. Even 
if the transgressors were the only sufferers, it would still be 
an unpardonable inhumanity not to cure them if possible, 
because in such cases they too often suffer in the inverse ratio 
of their familiarity with the vicious. More general educa- 
tion conduces to more justice in fitting the natural punishment 

124 



Dit;i(;rat:y 



OBSCEKITY, PRUOEKV AND MORALS. 

to the crime. All disease is the result of some form of vicious 
living. an<) if wf arc to be giiiiled by sucli irrational aphorisms 
wc must abstain altogether from trying to relieve human suf- 
fering. The pains of dyspepsia or rheumatism must be en- 
dured lest by Ihcir cure wc make vicious eating safe; dipso- 
mania and delirium tremens must remain uncured lest we 
make alcoholic bcvera^s safe. 

VENEREAL ISrECTION AND SUFFERING OP THE INNOCENT." 

When we come to consider the suffering which is unneces- 
sarily inflicted on the ignorani innoceni. by adherence to this 
absurd dc^ma, then the public's indifference toward the cure 
of venerea! diseases becomes almost criminal. It is not in- 
frequeril that a syphilitic child will infect its uninformed nurse, 
or an infected wet nurse not knowing her own condition trans- 
mits the disease to the child under her care. Unnumbered 
persons become infected merely by a common use of eating, 
drinkiRg, or toilet utensils. 

That you may properly understand just how infamous is 
the taboo which we have placed upon this subject, lei me go 
more into detail, and here I charge you specially to observe 
the suffering of the innnccnt. Eighty per cent, of the blind- 
ness of the new born, and twenty per cenL o( this terrible af- 
fliction from all causes, is due to gonccoccus infection, as also 
is a large proportion of vulvo- vaginitis and joint affections of 
children. Dr. Ncisser estimates that at present there arc in 
Germany about 30,000 blind persons who owe their affliction to 
*liis cause. In America no statistics are available. 

Piruiard found that in 10,000 consecutive cases of miscar- 
riage or abortions 43% were caused by syphilis, the remain- 
ing 58% were due to all other causes combined. The mortal- 
ity from hereditary syphilis ranges from 60 to 80%, while 
those who survive are affected with degenerative changes 
which unfit them for the battle of life. Syphilis in France 
alone kills evcr>' year 20.000 chiMren. producing 7yi% of the 
mortality form all causes combined. It is computed that 50% 
of all gonorrheal women are absolutely sterile, and gonor- 
rheally infected men arc responsible for ao^f of involuntary 
sterile marriages. Sixty per cent, of the children gestatcd 

■'Pf»r»n'i1(T t^l ■>' '^ti rnftifwatinn tTn^riT vrTirml jfTfrciiLtti t* Tjtkcii from 
~5od4t DiseiKi tBd M^rf^flc/' bf l>r. Prince Morrow, and from ihe pubUu- 
tun* i>f ihr Am Sot. for SaTiJ(ar> ■»<) Monl ProphrlAjcLii, of which he it Proideat' 
Tb* 5UH M«c1kd Hoard of Indiana hw nccnily iMurd ■ pamphlrt Rivinn v«r7 
aiailiir *iativti««. 

125 



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OBSCENE LirEIlATUItE AKD CONSTITUTIONAL LAW. 

by s>-phaitic mothers die in utero. or soon after birth. Only 
two in five will survive even through a short life; 20 to 30% 
of gonorrheal]/ infected women abort and from 45 to 50% 
arc rendered irrevocably sterile. 

Foumier's general statistics, embracing all classes of 
women, show that one in every five syphilitic women con- 
tracted syphilis from her husband soon after marriage. 
Among the married females in his private practice, in 75% of 
the cases the diseaisc was unmistakably traced to the husband. 
D. Bulldey's statistics, in "Syphilis in the Innocent," stale that 
in private practice fully 50% of all females with syphilis ac- 
quired it in a perfectly innocent manner, while in the married 
females 85^1 contraaed it from their husbands. The report 
of a medical cnitiminee uf .'^even gave it thjit in from 30 to 60% 
of the syphilitic women who had the disease it was commun- 
icated by the llu^l)an^l, Dr. Morrow in his experience in the 
New York Hospital found that 70^ of the women who applied 
for treatment for syphilis were married and claimed to have re- 
ceived the disease from their husbands, 60% of all gynocolo- 
gic surgical operations are chargeable lo gonococcic infection. 

To emphasize the danger which comes to the innocent from 
the infamous and ignorant conspiracy of silence, lei me quote 
these awful words from a specialist of high authority. He 
«ay»: "It may be a startling statement but nevertheless true, 
that there is more venereal infection among virtuous wives 
than among professional prostitutes in this country." The 
latter, being the more intelligent in such matters, use personal 
propylaxis, and seairc treatment earlier after infection, while 
the ignorant virtuous wife continues to suffer in silence. In 
view of this appalling condition, what are vou going to say 
lo those moral sentimentalizers, who for fear of making vice 
safe, seek to penalize all annoimcemcnis that venereal diseases 
can be cured? Will you by education help protect the inno- 
cent sufferers or will you through moral cowardice give silent 
support to the infamous taboo upon sexual education? 

1 have now shown the practical operation of the doctrine 
that to make men suffer the penalties of vice is the best safe- 
guard to virtue, yet if you would issue general instructions 
for the detection of venereal infection, or for personal pro- 
phylaxis, all prurient sentimentalists would say yo« are mak- 
ing vice safe, you must go to jail for your "obscenity" and 
the "immoral tendency" of your book. Thus it is that the in- 

126 



0\Q ii;('i: uy ' 



OBSCKNITV, PKUDERV AND UOiLU£. 

fxxent mu»t continue to suffer, and the family physician con- 
tinues to lie to the wronged wife, in order to protect her hus- 
band, and maintain the "sanctity" of such a home. Infected 
husbands must be screened at any cost of suffering to ihe in- 
nocent wife and cliildren, simply because we are afraid that 
someone will sny wc arc irjing lo safeguard vice. 

In many stales efforts have been made, and have almost 
succeeded, the success of which would have made it criminal, 
even in a hospital report or a professional treatise on venereal 
disease, to matte it kno\vTi where or how sexual ailments could 
be cure<I. and the excuse offered is that such information tends 
to make vice safe. 

DEUAND OPPORTUNITY FDR KNOWLEDCK. 

1 have tried to point out the urgency for general education 
and the laws which preclude it. I cannot doubt that you are 
quite convinced thai the situation is sufficiently pravc lo de- 
mand an immediate change if we would maintain a semblance 
of purity. I submit thai a decent regard for the moral wel- 
fare of the community, or for the innocent sufferers of vene- 
real infection, ctwnpels us to <lemand for tlic general public 
sudi liberty of the press, and other means of publicity, as will 
protect each in his ng\n to learn and to know, just how terri- 
ble are the ravages of these <Iiseases — how their presence may 
be delected — anil that they can be cured, and their spread pre- 
vented. The practical legal question which all this presents 
is this: noes riiCKe rxis.t anvwhkjie under our constitu- 
tions ANY AITTHORIT^' VESTS) WITB POWER TO SOPPRF-'IS .SEX- 
UAL INTEIJ.IGE.\-Ce. AND THUS RV LEC.M.tZEI> COUPUt^lON IN- 
PUCT St;CH ILLS UPON HUMANITY? 

OK THE DANGERS OF LIBERTY. 

It is perhaps apparent now that our present tests of ob- 
scenity are grossly ridiculous in their results if impartially ap- 
plied, and I am sorry to confess that 1 cannot furnish a better, 
because what is deemed objectionable is always a personal mat- 
ter which cannot \>e defined in general terms. Furthermore, 
no man can tell a priori what is of bad tendency. If you 
have received the right training from your parents or precep- 
tors, even the wcwst bawdy picture may produce a wholesome 
revulsiotu Once open the door to all serious discussions of 
sex, and soon the hcalt)iy curiosity will be satisfied, which now 
becomes morbid only from the denial of satisfaction, No one 
thinks of caricaturing the reproductive mechanism of our do- 

127 



Dic'iiwitiy' 



.ooj^le 



r 



OBSCBNE LITERATUBE AND CONSTITimOSAL LAW. 

mestic animals only because no one has any morbid curiosity 
about it. because there is no concealment. With the develop- 
ment of healthy mindedness throi^h sexual education in our 
Mbools. all morbidity of curiosity would disappear in one gen- 
eration. The demonstration of Uiis is to be found among art 
students. 

Years ago when it was proposed to prohibit the sending of 
abolition literature through the mails, because of its "immoral" 
tendency toward insurrection, the Hon. John P. King, a 
United States Senator from the South, protested and said : "I 
prefer the enjoyment of a rational liberty at the price of vigi- 
lance and at the risk of occasional trouble, by the error of mis- 
guided or bad citizens, to the repose which is enjoyed in the 
sleep of despotism." With this I concur. Liberty li.is dansrers 
of its own, which we must overcome, or forego progress. If we 
have confidence thai we have right on our side, we need not 
fear open discussion and warfare with error. 

This then concludes the several preliminary discussion)^. 
which seemed nccessar>- to clear away some of the mists of our 
moral scntimentalism. and brings us to the more direct dis- 
Cus.<iion of the several constiliilional question.^ involved. 




128 



Ln^iiit-iiUy 




ooj^ie 



CHAPTER Vn. 

ON THE IMPLIED POWER TO EXCLUDE "OBSCENE" 
roEAS FROM THE MAILS.' 

Syllabus of the Argument : Tkg Power to ereatt a postal 
system implies the power to pass all laws "necessary and 
proper" to the end of exerutinji the potver to establish post 
oifices and post roads, but it does not authorise Congress under 
the pretext of creating and maintaininff post offices to make the 
postal system a meatis to the accomplishment of ends not 
entrusted to tite care of Congress. The very creation of a postal 
system necessarily involves a determination of the gross physical 
ehoracteristics of that which is to be carried or excluded and 
therefore implies the power to determine such qualities. A like 
implication cannot be made in favor of a power to determine 
what are mailable ideas, because a differential test of mail mat- 
ter, based upon the opinions transmitted through the mails, or 
the psychological tendencies of such opinions upon the ad- 
dressee of the mails, or a differential test based upon an idea 
wliich is not actually transmitted, but is suggested by one that 
is transmitted, bears no conceivable relation to the establish' 
ment of post offices or post roads for the transmission of 
physical matter only. 

It may be admitted thai the power granted implies the power 
to preclude the use of the mails as an essential element in the 
commission of a crime otherwise commitlable. and over which 
CoHffress has jurtsdidion (sueh as fraud and (fambling), 
within the geographical limits of its power. But it is claimed 
that the power of Congress is limited to the use of means which 
ore a direct mode of execution of the power to establish post 
ofUces and post roads, or some other power expressly granted, 
and it cannot, under the pretence of regulating the mails, ac- 
complish objects which the Constitution does not commit to 
the care of Congress. Such an unconstitutional object is tht 

■Cnlml Lam tttnat, V. M. p. ITT. SipL •. 1««T. 

129 



Ditriiitiy tiy ' 



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OBSCENB LITEtLATUKE AWD CONSTITUTIONAL LAW. 

effort of Congress, under the pretext of regulating the mails, to 
try to use the mails as a means to control the psycho-sexual 
condition of postal patrons. 

The present postal laws against "obscene" literature, as 
the tame are judicially administered, make the raailability of 
matter depend not only upon the so-called "obscenity" of that 
which is actually transmitted through the mails, but also upon 
ideas not actually transmitted, but according to their potential 
capacity for suggest iveness to the prurient, though the words 
and sentiments in themselves are free from objection. The 
question is, has Congress the in^>lied power to make such regu- 
lations? Three tliousand lawyers have been employed by the 
defendants in as many cases, and none of these have thought 
it worth while to question the existence of such a power. 

This discussion involves only two clauses of the constitu- 
tion, viz: The power "to establish post offices and post roads" 
and the authority "to make all laws necessary and proper" to 
the establishment of post offices and post roads. It has become 
the statement of an axiom to say that "the national govern- 
ment possesses no powers but such as have been delegated to 
It."' "Whenever, therefore, a question arises concerning the 
constitutionality of a particular power, the first question is, 
whether the power be expressed in the constitution. If it be, 
the question is decided. If it be not expressed, the next in- 
quiry must be whether it is properly an incident to an express 
power and necessary to its execution. If it be. then it may be 
exercised by congress. If not, congress cannot exercise it."* 
The constitution nowhere expressly confers upon congress the 
power legislatively to discriminate between "moral" and "im- 
moral" opinions. 

IS THE IMPLIED POWEU TO RKOUI.ATK UNLIMITEP? 

I now momentarily waive the contention that no such qual- 
ities belong to any opinions. The question then is, has congress 
the implied power to create a "moral" censorship over the opin- 
ions which may be trarusmitted through the mails, which im- 
plied power, if it exists, must arise wholly from the power to 
maintain post offices and post roads? Tlie power to establish 
a poMat .system and to make all "necessary and proper" laws 
incident thereto, undoubtedly implies the unavoidable exercise 

•ailmin T. philKJrlpliii. 10 U. S TIS-Tlfi: Matiio v, (luntcr't t*a». I V>'h«t. 
•04-ttR^ M'Cullorh Y, Miiyltad. « Wbcit. 40S: Pacific In*. Cn. *. Sault. 1 W»U. 
««4: United Suiei *. Crullub4nk. M U. S. S4E. 

■StoiT** CaonncBUrin on Hie Convtltutlon. 

130 



DnjliiMCy' 



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HXCLUDK "OBSCENE IDEAS PROM HAIL. 



of the power to detemiine the gross physical characteristics of 
the matter to be transmitted and excluded. But docs it follow 
that in other particulars there is any implied power to regulate 
the contents of the mails, and if so, is it unlimited? Has con- 
gress the power to say that nothing at all he carried which is 
not written or printed upon paper produced at a particular 
factory, and to penalize the transmission of otherwise un- 
distinguishable paper coming from a rival factory? Clearly 
not. If the paper in all its physical characteristics is undJs- 
tingutshable, a discriminatinR judgment based upon its differ- 
ent manufacturers, who themselves bear precisely the same 
relationship to the government and its postal system, cannot 
be a "necessary and proper" power impliedly existing in con- 
gress, because a decision upon that question is not necessary 
to either the establishment or maintenance of post offices and 
post roads, nor of any other power expressly delegated to the 
United States. To assert the contrary is to make the control of 
postal regulations 3 political prize, to be used in securing a 
moaopoly in the manufacture of paper, ami such an evil pos- 
sibility is not to be tolerated, or called into being by any judicial 
process of unnecessarily creating implied power. When it is 
"necessary and proper" as an incident to any other expressed 
grant of power, it is possible that the postal system, and the 
mode of its r^ulation, by necessary implication, could be made 
subservient thereto. Thus congress has undoubted power to 
pass many criminal laws, and might, perhaps, prescribe depri- 
vation of mail privileges as a penalty to be intlicted upon con- 
viction, or it probably could prohibit the use of the mails as an 
instrument directly contributing an essential factor in the act- 
ual commission of such other actual crime, within the power of 
congress to create. But does it follow tliat therefore con- 
gress also has the power arbitrarily to deny the use of an es- 
tablished postal service to all citizens who bear the name of 
"Smith," or who do not believe in Christian science, or do not 
i^)prove of a protective tariff? Qcarly not. Because a de- 
cision based arbitrarily upon the name of the postal patron, or 
upon his characteri.Mics of opinion merely, is not "necessary 
and proper" to the establishment of post offices and post roads, 
nor to the exercise of any other expressed power of the fed- 
eral government Admitting now the "necessary and proper" 
implied power in congress to determine the geographical ex- 
tent and distribution of post offices and post roads, and the un- 



131 



Disteeacy' 



iooglc 



OBSCENE UTERATURK AND CUNSTITUTIONAL LAW. 

■voidable, and therefore "necessary and proper" implied power 
to determine the gross physical ehar act eristics of what 
may be transmitted, docs it follow, all other conditions, 
including the physical characteristics, being the same, that 
congress has the power arbitrarily to make discriminations 
according to arbitrary standards, based upon the varying intel- 
lectual valuations of conflicting opinions, or opinions of sus- 
pected conflicting tendencies? Can the literature of Catholics, 
free-lovers, theists, and agnostics be excluded as unapproved 
by the law-making power, while the literature of evangelicals, 
polygamists and Christian scientists is transmitted because 
approved? May the literature of trades unionism be excluded 
ind that of the employer's association transmitted? May llie 
literature favoring the single tax. free trade, or state owner- 
ship of railroads be excluded, and those favoring an income 
tax, protective tariff and the repeal of anti-trust laws, be trans- 
mitted? Has congress the power to so regulate the mails as 
to transmit all literature "tending" to a centralization of power, 
progressive tyranny, moralization by force and that which 
"tends" to foster the ascetic ideal of sexual life, while it ex- 
cludes all matter which "tends" toward decentralization and 
personal liberty, or "tends" to foster unconventional ideas of 
sex-life, all other conditions being the same? May the litera- 
ture of prohibitionists be excluded, while that of their op- 
ponents is transmitted? Gearly, if congress has the implied 
power to do one of these things, it has the implied power 
to do them all, because they all bear the same relation, 
or more accurately, no relationship, to the establishment of 
post oflfices and post roads. We are not concerned with the 
question as to the likelihood of such a power being exercised 
to the fullest, nor are we concerned with the tremendous pos- 
sibility for evil which might come from the abuse of so extra- 
ordinary a power, though that would make us hesitate to 
affirm its existence, unless the implication was an unavoidable 
one. Again we ask, has congress any such implied power? 
Clearly not, because its exercise bears no "necessary and 
proper" or conceivable relation to the establishment of post 
offices and post roads, nor to any other enumerated power of 
the federal government. 

HOW IS THE IMPLIED POWKR LIMITED? 
Let HS abandon the discussion from the standpoint of en- 
grafting necessary exceptions upon an assumed untimitedness 

132 



Diti"-t-'t:iiV 



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IMPLIED POWER TO EXCLUDE ■' OBSCENE " IDEAS FROM MAIL. 

of the implied power, and discuss the matter by dcyclopii^* 
the implications from ihc constitution itself. Congress is not 
expressly authorized by the constitution to determine even the 
gross physical qualities of mail matter, but that power is un- 
avoidably implied from the authority to establirii post oflices 
and post roads, because the latter cannot be executed without 
the exercise of a discretion as to the physical characteristics of 
postal matter. Can the same be said about a di.icretion as to 
the psycholopic tendencies of ideas expressed upon the trans- 
mitted matter? Congress is not expressly authorized to dis- 
criminate according to the intellectual or "mora!" qualities tfT' 
that which may be expressed upon, or suggested by that 
which is transmitted through the mails. Congress can have 
the implied power to make such differentiations according 
to psychologic standards only if post offices an<l post roads are 
impossible of establishment and maintenance without the im- 
plication of such power. But if on tlie contrary, it is essential 
to the establishment or maintenance of post offices and post 
roads, that congress exercise a legislative discrimination be- 
tween mail matter, not only according to the opinions actually 
trani'mitled, but also according to the psychologic tendency of 
that which is only suggested by, but not expressed in the mat- 
ter actually transmitted, then such power will be implied. A 
mere analytical statement of the question shows how absurd is 
the claim of such a power. 

Every publication undoubtedly suggests different things to 
many different people. In each, that which it suggests depends 
upon what, by prior varying experiences, has become associated 
in his mind with that which has l>een written. That which I 
send through the mail is one clement, but not at all the deleft 
mining element in the resultant varying ideas suggested to 
the different readers. How ridiculous and monstrous it is to 
assert that a discrimination between mail matter, not according 
to its own inherent definable qualities, but according to its 
mental associations in the reader's mind, is a "necessary and 
proper" incident to, or "a direct mode of executing the power" 
to establish post offices and post roads! Yet according to 
sudi tesLs of obscenity are present laws exeaited. What has 
the reader's sensitiveness to the discovery of lewd suggestions, 
or the existence of an associated lascivious idea, or the jury's 
capacity for psycho-sexual rcceplivity, to do with establi-thing 
post roads? Plainly and unmistakably nothing at all. Here 

133 



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OBSCENE LITERATURE AND CONSTITyTlONAL LAW, 

it is desirable to emphasize the fact that the incidental and im- 
plied powers of congress are required by the federal consti- 
tQtion to be both "necessary and proper," If this power under 
investigation is deemed only "proper," but not "necessary," in 
the sense of being unavoidable, *hcn it does not exist. This 
does not mean that the particuU. regulation must be indis- 
pensable, but the existence of a general power to choose be- 
tween this particular regulation and some other, must be indis- 
pensable to the expressed power, as a "direct means of execu- 
ting it." This is not a question of regulating the physical charac- 
teristics of mail matter, or posul charges, nor preventing the 
commission of another crime over whicli congress has been 
given authority, by another part of the constitution. This is an 
effort, by means of the postal system, to regulate, in the 
thoughts of the mail recipient, certain ideas which are not tn 
themselves criminal. The theory is that these certain ideas 
tend to induce conduct which in itself is not necessarily either 
criminal or immoral, but sometimes becomes so. and which con- 
duct, when it is criminal, is so by virtue of state laws, and is 
not within the power of congress to r^ulatc. because that 
potential sexual conduct, if crime it be, when it has materialized 
into actuality, is never in any of its essential parts committed 
in the mails or on the post office's premises, where congress 
has jurisdiction over it. Unlike fraud and lottery-gambling, 
fornication and adultery caruiot be committed by mail, and 
when otherwise committed in a place where congress has 
authority, it can be adequately punished without invoking the 
pretense of postal regulation, and when committed within the 
states is none of the concern of congress. 

Our contention is that while congress may in its discretion 
use "any direct mode of executing" its expressed authority, 
it has no power to make the end authorized by the constitution 
a mere means to the accomplishment of an end that is not so 
authorized. Chief Justice Marshall expressed it thus: "Should 
congress, under the pretext of executing its powers, pass laws 
(or the accomplishment of objects not entrusted to the govern- 
ment, it would become the painful duty of this tribunal J * " 
to say that such an act was not the law of the land."' f Since 
Judge Marshall wrote the foregoing, numerous acts have been 
declared unconstitutional for coming witliin tlie foregoing 

•M-CoiiDch V. MirriMd. IT u. s. ua. 

134 



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oogic 



lllrLIED POWER Til EXCLUDE "oBSCENE" IDEAS FROM MAIL. 

prohibition.* That which Judge Marshall in M'CuUoch v. 
Maryland said could not be done by congress is precisely what 
has been done in the legislation now under comideration. To 
control the p^cho-sexual condition of (he addressee of mail 
matter is not one of the expressed powers of congress ; neither 
is the regulation of the psycho-sexual condition of the ad- 
dressee of mail "a direct mode of executing" the power to 
establish post offices and post roads. In fact it bears no pos- 
sible relation either (o their establishment or maintenance. 
Therefore the act of congress now under consideration is not 
the law of the land, because the object lo be accomplished is 
not one entrusted to congress. If regulating man's psycho- 
lexual conditions and the resultant sexual conduct, is an im- 
plied power, incident to a regulation of the mails, then it is 
within the discretion of congress to accomplish that same end 
by any other adequate means. Among such means would be 
the limitation of the use of the mails to the unscxed, or pro- 
viding that all who willingly receive "obscene" mail, or any 
mail, shall submit to castration or ovariotomy. This would be 
as legitimate a power, implied from authority to regulate the 
postal system, as the other method of controlling the psycho- 
sexual condition of the mail addressee. 

UAV CONGRESS USB POSTAL POWER AS A MEANS OF REGULATING 

TB.\DE ? 
Next we inquire if the foregoing conclusion can be avoided 
by the suggestion that the purpose to be achieved by this postal 
regulation was not to control the psycho-sexual .-states of 
postal patrons, but to withhold the aid of the postal system 
from a class of business which congress disapproves and de- 
sires to discourage, but which, within the states, it has not the 
expressed power to destroy by direct criminal legislation to 
that end. This again involves the same <iuestion as the last, 
namely: Can congress, under the pretext of regulating thg 
mails, make that regulation avowedly subservient to objects 
with which it is not authorized to deal directly? In the exer- 
cise of an unavoidable duty lo regulate ihe physical character- 
istics of mail matter, congress may transmit dry goods and 

•Itrpburn v. Crtiwnid, R Wt,ll. SOI (I^nl Tandii Ad): CumraMfi t. HI*. 
Mart. T1 U S. »U rDitloT*! acrtimanl. h* fart* Gdrlserl, Tl V. S. MS <I>I» 
htftiHE H<<«-l>l: I'- S- V. ntfK, US U, .S. Uti (Nrji-i Sillli.iur'. I'. ^ .. SuTrin. 

»a U, S. H (Trt-lt M«k t-«M.}i U. S, .. Sunlrr- lOB " S. 1 ICivil RighU 
Om*): PoltBck *. Farmrn' l> Ir T. Co., ISI V. S. tm IIrmih Tu): t&mci v. 
IkimMn. IW U, R. IIT (Ntctq Suflmnl ; V S. t. MMIh'vt. t«a Fd, ttrp, Ml 
(Cob. Aartc): IJ. S. *. Scett. it* Frd. Rai<. til (Litinr Unloa h IntiiuMe 
C«B.): Braoto *. So, Pat Ry.. \n VtA. Rep. »M (Emp. Liab. k Iniitiut* Cck.). 

135 



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OBSCENE LITBRATURK AND CONSTITUTIONAL LAW. 

exclude printer) matler. The incidental effect might be that 
the dry goods business would receive an appreciable impetus 
and the publishing business a relative set-back. Such an 
effect would not void the congressional enactment, so long 
as it is merely incidental to a discrimination based upon factors 
bearing such relation to tiie control of mail transportation as 
to be a direct mode of exercising the power to create post 
offices and post roads. However, the result is different when 
the avowed puqjosc is to make the establishment of the posta! 
system a mere inMnimentality for promoting approved trade, 
and to make the particular postal regulations therefor avowedly 
subservient to such other purpose, which congress cannot 
directly promote, If such other purjiose of regulating trade, 
not authorized by any other expressed power, was by congress 
made the avowed object of postal regulations, the act would 
be a nullity, under the rule above quoted from M'Culloch v. 
Maryland. It follows that the law in question catmot be sus- 
tained by the process of judicially imputing to congress such 
an unconstitutional motive of trade rcRulation. That trade 
regulation was not the purpose is still further apparent from 
the fact that the act of congress does not make criminality 
depend upon a commercial transaction in "obscenity." Such 
matter sent as a gift, or in a private, sealed and personal letter, 
is as criminal under the act as if it were part of a commercial 
transaction. 

To sustain this law, on the contention that congress may us« 
the postal .system as a means of regulating trade, would vest 
in congress the most dangerous power ever possessed by any 
tyrant. Congress might then say: "We wish to encourage the 
business of Jones, Jones may, and Smith may not, use the 
mails." Under the guise of regulating the mails congress might 
encourage the publication of literature favorable to a protective 
tariff and prohibit the transmission of that favoring tariff 
reform ; it might tran.siiiit the hooks favoring Protestantism and 
exclude those favoring Catholicism : might deliver gratuitous- 
ly literature commending its administration of the postal sys- 
tem and the political parly in power, and penalise the posting 
of mail criticising the postal management and the political 
party in power. To establish such a power, is to make the post 
office a prize to be contended for by political machines and 
hrge industrial enterprises, for the destruction or curtailment 
of criticism and competition. TIte obvious answer to all such 

136 



Dic'iiMcy 



IHPUBD POWER TO EXCLUDE "oBSCEKe" IOEAS ntOM HAtL. 

claims of power is that the sentiments expressed through the 
mails, or the speculations aboul the psydiologic (moral) 
tendency of tbcm, bears no possible relation to any possible 
factor in the establishment or maintenance of post offices and 
post rosds, and therefore cannot be "a direct mode of exe- 
cuting" the power to create them, and is not an implied power 
of congress, and the law under consideration is therefore 
tmoonstitulional. 

Furthermore, if it were contended that in excluding from 
the mails all "obscene" publications, congress had in view any 
other object than the single one of regulating the psycho-sex- 
ua! slates of postal patrons, the contention would be palpably 
false, as is readily seen by all the judicial decisions and the 
tests of "obscenity"" prescribed by the courts as guides to 
jurors in the trial of these cases, It follows that here, by 
universal confession, we have just such a case as Chief Justice 
Marshall described, wherein "congress under the pretext of 
executing its power [did] pass laws for the accomplishment 
of objects not entrusted to the government," namely: the 
regulation of the intellectual food and mental states of its 
adult citizens. 

HOW FAR CAN CONGRESS DIFKERENTIATE BETWEEN HAIL- 
RECIPIENTS? 

One more question remains to be considered. May not 
congress, in the exercise of ils implied power to regulate post 
cfikes, classify the recipients of mail matter, so as to exclude 
some from postal privileges which are granted to others? 
The answer of course is that it may do so. sometimes, but this, 
like all implied powers, is limited by the necessities which call 
the implication into existence. For example: Congress can 
have no power to exclude from postal privileges, on the same 
termf. that it is granted to others, an adult citizen with red hair, 
simply because of his red hair, who in every respect bears the 
same relationship to the po.-'lal sy.ttem and the government that 
do the citinens having different colored hair and who arc per- 
mitted to use (he postal facilities. The obvious reason is that 
a differential test, based solely on the postal patron"s color of 
hair, bears no possible or conceivable relation to the establish- 
ment or maintenance of post offices and post roads. Neither 
does his psycho-sexual condition, either before or after using 
the mail, bear any such relation. Hut a classification of mail 
patrons according to their differing relations to the postal 

137 



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ooj^lc 



OHSCKNE LITERATURE AND CONSTITUTIONAL LAW. 

wrrke. or to the government, would be a different matter. 
Thus, deprivation of mail service, might be impo.^ as a 
penalty upon conviction for any crime in the power of congress 
to create; or might be imposed to prevent the use of the mails 
as a material factor in the actual commission of crime over 
which congress has jurisdiction, and which crime is predicated 
upon an actual injury to some actual person. (Fraud and 
Gambling.) It is also quite certain that owing to the different 
relation of the government to lunatics and minors, congress 
would have the power to classify them separately from other 
citizens and make special regulations for them as a class. But 
■11 differ en tiat ion in the enjoyment of postal privileges, maae 
between different classes of citizens must be based upon tests 
founded in tlicir essentially different relations to the govern- 
ment itself, and not according to any arbitrary distinction based 
upon the color of tfieir hair, or their psyclio-sexual possibilities. 

THE DANCER OF SUCH POWER. 

We roust not estimate lightly the dangers which are sure 
to be realized should a decision of the Supreme Court of the 
United States once affirm the unlimited power of congress to 
provide a censorship over the opinions, or over the psychologic 
tendency of opinions which are transmitted through the mails. 
It is fresh in our memory that when the agitation against lSc 
beef packers began, which agitation resulted in recent pure 
food laws, some packers demanded that the postmasters ex- 
clude from the mails all "muckrake" magazines which were 
criticising their business. Already a demand has been made to 
exclude from the mails everything tending to encourage the 
use of alcoholic li(|uors and tobacco, and in due time, no doubt, 
in the name of morality we will exclude everything which tends 
to encourage meat eating. This will come not alone from the 
scientific and sentimental vegetarians, but will have the endorse- 
ment of our Mxual linkers. In England the cry has already 
gone up from high church dignitaries that meat eating pro- 
motes lasciviousncss. Ttiis warns us of the evil to come from 
«nneces.*arily enlarging by implication the congressional power 
to regulate the mental food of postal patrons. 

If. prior to 1837. there had existed an authoritative judicial 
decision aflirming the power over the mails, it would have 
been made a crime to send abolition literature through the post 
oflioc. This again warns us that %tich a power i» an insufferable 

138 



Dlcli^MCy 



lUPLlKD POWER TO EXCLUDE "OBSCF.KK" 1t)E.\i> FROM MAIL, 

menace to human progress. Its exercise at that time failed 
ool)* because the great lawyers in the senate were united in the 
belief that no such powrr existed. About 1836. it was pro- 
posed by the postmaster-general and President Jackiion to pass 
a bill penalizing ihe use of the mails for the tr^uismission of 
abolition literature. [ believe it was during that debate that 
Senator John P. King, a member from a slave-holding state, 
said this; "t prefer the enjoyment of rational liberty at the 
price of vigilance, and at the risk of occasional trouble by the 
error of misgwided or bad citizens, to that repose which is 
enjoyed in the sleep of despotism. * • • No man was ever 
convinced of his error by refusing to hear him," Mr. Calhoun 
was made chairman of a special committee in the senate, and 
the subject received careful consideration. He evidently wished 
for the power to super%-ise the mails in the interest of slavery; 
but to his great honor, be it said, he plainly saw and declared 
(hat the constitution did not give congress the power, and he 
would not claim it. The most he could ask was that by the 
"comity of nations" the United Stateti would restrain postmas- 
ters from delivering such matter in the states which had made 
its circulation illegal. The question was discussed fully in a 
senate of iinequaled ability, and even this limited restraint, 
proposed by Mr. Calhoun, by a vote of twenty-five to nine- 
teen was held to be impossible under the constitution.* In the 
debate Henry Oay said: "When I saw that the exercise of a 
most extraordinary and dangerous power bad been announced 
by the head of tbc postoflicc, and that it had been sustained 
by the President's message, I turned my attention to the sub- 
ject and inquired whether it was necessary that the general 
govenuncnt should under any ciraimstances exercise such a 
power, and whether they possessed it. After much reflection, 
I have come to the conclusion that they could not pass any law 
interfering with the subject in any sli:ipc or form whatever. 
The evil complained of was the circulation of papers having' 
3 certain tendenc)-. The papers, unless circulated, and while 
in the postoffice. could do no liarro. It is the circuLiIion 
solely — Ihe taking out of the mail and the use to be made of 
ibcm — that constitutes the cvi\. Then it is perfectly compe- 
tent for tite state authorities to apply the remedy. The instant 
that a prohibited paper is handed out, whether to a citizen or 
sojourner, he is subject to the law» which compel him either 
to surrender or bum it." Mr. Oay tljen proceeded to demolish 

•Con. Globe. IU8. pp. it, ISO. tM. UT. Mc 

139 



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.oogic 



OBSCENE LITERATURS ANil CONSTITUTIONAL LAW. 

the claim Ihat congress could legislate lo carry into effect the 
laws of twenty-four different statest or sovereignties, and said 
ironically: "1 thoiight that the only authority of congress to 
pass laws wa» in puri^uance of the conMilution." To the ques- 
tion of Senator Buchanan, of Pennsylvania, to the effect that 
tbe postoffice power did give congress the right to regulate 
what shall be carried in the mails, he replied in the negative, 
tayiag: "U such a doctrine prevailed, the government may 
designate the persons, or parties, or classes who shall have the 
benefit of the mails, excluding all others." During tlie debate, 
one of the safest of senators, "Honest John" Davis, said: "It 
would he claiming on the part of government a monopoly, an 
exclusive right either to send such papers as it pleased, or to 
deny the privilege of sending them through the mail. Once 
establish the precedent, and where will it lead to? The govern- 
ment may take it into its head to prohibit the transmission 
of political, religious, or even moral or philosophical publica- 
tions in which il might fancy liierc was something offensive, 
and under this reserved right, contended for in this report, it 
would be the duty of the government to carry it into effect." 
Mr. Davis also said he "denied the right of the government to 
exercise a power indirectly which it coulil not exercise directly; 
and if there was no direct power in the constitution, he would 
like to know how ihcy would grt the power of the states — 
legislative power at most," Mr. Webster expressed himself 
as "shocked" at the unconstitutional character of the whole 
proceeding. He said: "Any law distinguishing what shall or 
shall not go into the mails, founded on the sctitimcnts of the 
paper, and making the deputy postmaster a judge, I should 
say is expressly unconstitutional,"' 

CONCLUSIONS. 
Congress admittedly has no authority to r^iilate the sex- 
ual conduct of citizens within the states. Much less has it the 
power, as a means to that end, to control the mere psycho- 
sexual conditions of citirens of the states. It has never been 
claimed nor even imagined or dreamed, that the postal regula- 
tion against "obscene" literature is of the remotest consequence 
AS A MEANS lo the maintenance of post roads, or that such 
regulation is of even the remotest conceivable use to the postal 
system as such. On the contrary, both judicially and other- 

'Pwrltv and LlhtnT. tn WakrTMn: Cnngmrioiul Globt. ISIS. pp. M, ItO. (SI, 
Ml. ttci Von RoUi'i 1J(( of CmlhouB. p. lit. 

140 



Dis'i^eiiov 



IMPLIED POWEK TO EXCLUDE " OBSCENE IDEAS FROM MAIL- 

wi>e. It nas been slated, again and again, that the only purpose 
of that regulation was to control the psychO'Sexual states of 
postal patrons, 3$ a means of restramini; their sexual activities. 
But this is an end the accomplishment of which is not entrusted 
to the congress of the United States. Confessedly then, we 
have htTc a case where ciwgress, under the pretext of exe- 
cuting its powers to establish poiit of!icc» and post roads, has 
passed a law for the accomplishment of objects not entrusted 
to the United States government, and this is exactly what 
Chief Justice Marshal! said couW not become the law of the 
land/ It can make no possible difference to the postal system 
as such whatever may be the psychologic effect of the opinions 
transmilled. Some physital factor of ihe postal system must 
be affected, making the postal system different from what it 
otherwise would be, or else the regulation is not an exercise 
of tlic )X)wer to establish and maintain it. 

Neither can the exercise of the present power be justified as 
an incident to Ihe power to regulate interstate commerce, be- 
cause the ccnsor?ihip is not limited thereto. It includes Intra- 
state transmission as well as that of private letters, or gifts 
which are rot at all matters of commerce cither Inter-state or 
otherwise.* 

For these reasons the power here under discussion is not 
vested in Congress at all. and the present laws creating a postal 
censorship over mail matter arc unconstitutional. 

OrCDllMli >. Mirrland. II V. 3. til. 

•Howaid n- 111, CcnL R, B., IB SupL Cl Rep. 1*1. 



141 



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CHAPTER VIII. 



CONCERNING THE MEANING OF 

THE PRESS."" 



•FREEDOM OF 



I 



I 




Tht postal Itmii against "obsctnt" tUerature are void undtr 
the coHStitHliottoi prohibilioH ogatHSl the abridgment of free- 
dom of speech atul of the press. Likewise all similar Statf 
legislation is tH>id under State ConslitutioHS. 

Syllabus of the argument : This constitutional guarantee of 
freedom of the press is violated whenever there is an arti/Uial 
legislative destruction or abridgment of the greatest liberty 
consistent with an equality of liberty, in the use of the printed 
page as a means of disseminating ideas of confiicting tendency. 
The use of printing is but an extended form of speech. Free- 
dom of speech and press is abridged whenever natural opportu- 
nity is in any respect denied or its exercise punished, merely 
as such; that is, in the absence of actual injury, or when by 
legislative enactment there is created <ai artUieial inequality 
of opportunity, by a discrimination according to the subject 
matter discussed, or a discrimination as between different ten- 
dencies in the different treatment of the same subject matter, or 
according to differences of literary style in expressing the same 
thought. All this is »(m' accomplished under obscenity laws as 
at present administered, and therefore our laws upon the tid>- 
ject ore unconstitutional. 

This contention involves the establishment of » new defi- 
nition of "freedom of the press" based upon the viewpoint that 
the framers of the constitution intended by that clause to en- 
large the intellectual liberty of the citizen beyond what it had 
theretofore been under the English system. Some State courts 
have erroneously assumed that the only purpose was to ex- 
change a cenMtrship before puUication for criminal punish- 
ment after publication, without the least enlargement of the 
right to publish with impunity so long as no one is injured. 
The contention will be that the constitution changed liberty of 
the press by permission, to Liberty as a right because tlius only 

■ RepublUial tnvn The OnHnl Law Jcmnat 

142 




DlCr'iJt-'y Uy 



Google 



CONCERNING THF- WeANlSG OP "PREEnOM OF THE PRESS," 

can all citizens bv protected in Iheir proper opponunity to hear 
and read all that others have to offer, and without which free- 
dom unrestricted there is no intellectual liberty at all as a 
nutter of right. 

Before proceeding with the more critical study of the 
meaning of "freedom of the press." il is well that we should 
point out, and so far as possible bar, the principal avenues 
of error, which have heretofore misled our courts. 

TUE DANCER OF PRECEDENTS. 

Over a century ago Sargeant Mill cynically wrote this: 
"When judges arc about to do an unjust art they seek for a 
precedent in order to justify their conduct by the faults of 
others." In matters of government, at least during the last 
few centuries, the evolution has been from despotism to liberty. 
It follows from this that the danger and iniquity of blindly 
following precedents is nowhere so great as in the attempts 
to define the limits of constitutional liberty by reverting to 
Ibe ancient misconceptions of it, because the older precedents 
were all made by tyrants, or lliosc not far evolved from their 
attitude of mind. As we evolve to a more refined sense of 
justice, and rational conception of liberty, the old precedents 
must be constantly overruled. It is this which marks the 
progress of our race in its evolution to a truer and final sodal 
liberty. 

CRITICAL STUIW OF FUNDAMENTALS. 

The utility of a brief historical review of the stru^lc 
for "freedom of the press" lies partly in this, that it shows how 
reluctant have been those in power to admit such freedom 
in practice, though seldom denying il in principle, and how 
shifty the powers of despotism have been in yielding up one 
form of repression as a concession to intellertual liberty, and 
at the same time creating a new method for effectually ac- 
complishing the same impairment of intellectual opportunity. 
Such a study will also show how uniformly the moral scnti- 
rocntalism of those in authority has prompted them to reinvent 
the same phrases in defence of each renewed attack upon 
freedom. 

In order to undor.-tanil the underlying impetus of all 
this, it must be remembered that when this problem first arose 
h was in every essence a religious one. and arose where there 
•was a union of churcli and State. Those who governed 



143 



Dic'i^eticy ' 



.oogic 



OBSCENE LITIfKATURE AND CONSTITUTIONAL LAW. 

claimed to do so by divine right, and in iheir official acts repre- 
sented the Deily, The King couUI do no wrong, ami to criti- 
cize him or his aclii was an in&ult to the Almighty for whom 
he acted, just as much as though legalized religion had been 
blasphemed. From the viewpoint of such a church-state it 
was inevitable that those in authority should ai^rm that: "To 
say that religion is a cheat is lo dissolve all those obligations 
whereby civil societies arc preserved; and Christianity being 
parcel of the laws of England, therefore to reproach the 
Christian is to speak in subversion of the law."' "It was the 
doctrine of Coke [1551-1632! and even so late as Hoh. C. J. 
[1689-1710] and Treby [1692-1701I that any law. thai is. any 
statute, made against any point of the Christian religion, or 
what they thounht was the Oiristian religion, was void.'"* 

Of course under the influence of such authority it neces- 
Mrily followed that no one had any right to ihink or speak, 
upon matters of religion, rulers, or governments, who had not 
been thereunto authorized by those who were recognized as 
possessing some divine authority to give or withhold such per- 
mission. Eul religion and government, according to the 
views then prevailing, encompassed everything and so it fol- 
lowed inevitably that "Free speech was a species of gift by 
the Sovereign to the people." 

.Although we have all abandoned the original premises 
from which was drawn the conclusion that freedom of speech 
was a gift by the sovereign, yet most American judges seem 
to read the precedent so blindly that they adhere to the dogma 
that "freedom of the press" means a liberty by permission and 
not a natural right guaranteed by the constitution. This is 
self-evident from almost every judicial utterance upon the 
subject and in spite of the self-evident fact that our consti- 
tution-makers intended to perpetuate a different rule. This 
error, like many of the others, comes from the uncritical 
adoption of precedents and the consequent failure to realize 
that our very different theory of government has overturned 
the foundation which alone justified (he older authorities, and 
failing to realize this change of base, our courts also fail to 
see the necessity for repudiating the precedents which had 
no other foundation. 

THH TYRANTS "lO\'E" OP LIBERTV. 

Another matter to be guarded against is the false pretense 

■Rr(- V, Ti)lor. Vrnliii tD3, The later new in EoflMid *cnw diSercnt. 
Ste 41 PortnlKhdy Stricw. 306. 

•Pai(Ti(c»i > Libnty of the pjeu. p. 87. dtlan 10 it. Tr. TS, 

144 



Dictee~cyV^»( 



OONCeSNtNC THE MEANING OK "mKEOOM OF TUB PRESS." 

of a love of liberty which tyrants have always expressed, even 
in the »efy act of enforcing its destruction. Thus Lord E»- 
Idne tells us: "The public welfare wa* the burden of the 
preambles to the licensing acts ; the most tyrannical laws in 
the fno&t absolute governments speak a Idnd parental language 
to the abject wretches, who groan under the crushing and 
humiliating weights."' In France, October. 1803, an act was 
passed by which all boolcsellers were prohibited from ventUng 
any book without having submitted it to the censors, "and as 
if to add insult to injury the measure was introduced as one 
to secure the liberty of the press,' " • • • Napoleon the 
First did not consider liberty of the press as possible among 
Frenchmen, "who have a lively imagination." as it is in Eng- 
land where "the people being brutal arc less likely to be in- 
6uenced by writings, and are more easily kept in check by the 
throne and the aristocracy."* 

In America we find a similar practice. Solemn judicial 
opinions sometimes reck with pharisaical eulogies of the 
judicial love of liberty, as a prelude to the arbitrary punishment 
of a man for contempt, without trial by jury or an opportunity 
to prove truth and justifiable motive before an impartial tri- 
bunal, and all because he had exercised his supposed right to 
express freely his opinion of a public servant, the court. Her* 
is a sample: 

"It is a well known fact, that the bench and the bar 
have been, in this and all other countries where the law 
has existed, as a distinct profession, the ablest and most 
zealous advocates of the liberal institutions, the freedom of 
conscience, and the liberty of the press ; and none have guarded 
more watchfully the encroachments of power on the one 
hand, or deprecated more earnestly tendencies to lawless 
anarchy and licentiousness on the other. The freedom of the 
frets, therefore, has nothing to feor from the bench in this 
State. No attempt has ever been made, and we may venture 
to say never will be, to interfere with its legitimate province, 
on the part of the judiciary, by the exerci-se of the power 
to punish contempts. 

"The object of the clause in the Bill of Rights above 
quoted is known to every well informed man. Altliough the 
press is now almost as free in England as it is in this country, 
yet the time was in bygone ages when the ministers of the 

*V(iL I. IL tl. EiIliiDn flf ISID. 

'Vol It, S«liciler> Jonniil « ltcpon«r, •! h TO. 

145 



Die ri;e 



.00^ Ic 



OBSCENE LITERATURE AND OONSTtTUTIONAL LAW. 

crown possessed the power to Lay their hand upon it, and 
bash its voice, when they deemed it necessary lo subserve 
polidcal purposes. A similar clause has been incited in all 
the American constitutions, to guard the press against the 
trammels of political power, and secure to the whole people 
a full and free discussion of political affairs."* 

This eulogy was followed by abridging freedom of the 
press through an afhrmance of sn arbitrary punishment for 
contempt. It is very dangerous to accept a tyrant's definition 
of liberty because he has the audacity to indulge in an ex- 
travagant praise of it. 

TUE DANGER OF PARTISAN DEPtS'lTIONS. 

Another misleading guide for the ascertaimnenl of what 
is meant by "freedom of the press," is the definition of it 
framed by partisan defenders of it. These definitions nearly 
all have the defect tliat they generalize freedom to consist 
only in the absence of that particular abridgment of it 
which is then being speci6cally attacked. These defective gen- 
eralizations are usually the combined product of defective in- 
tellectual vision and the dictates of expediency. It always 
seems as though those who have fe!t themselves called upon to 
defend against some particular abridgment of freedom, have 
been so overwhelmed by its importance that they have failed to 
define or defend freedom in general, possibly also influenced 
by the fear of including too -much and thus overtaxing the 
moral courage of the judge or legislator. 

A recent illustration of this is furnished by Mr. Gompers 
of the American Federation of Labor. He conceives himself 
to be making a great fight for freedom of speech and is fond 
of using the phrase as a shibboleth, but hastens into the pub- 
lic prints to explain that he neither contemplates nor desires 
such a thing as general "freedom of speech." He wants 
only freedom to advocate the boycott as against the restriction 
thereof by injunction. He deplores the havoc which would 
oome from a general "Freedom of speech and the press." 
Just at the time when I am writing this, a large section of the 
American press is working itself into a white-heat of opposi- 
tion to the indictment of the publishers of the S'fut York 
World for a 'libci on the government of the United States." 
consisting in that paper's attempt to discredit the dealings 
of the government in the matter of the Panama Canal. Yet 
not one of these same papers would likely dream of defendii^ 

^ •StM< n. Morrill. IS Arti . «M-«01 (1U(). 

146 



Li^iiit-ciiy 




oogie 



OONCSRNING THE MEANING OF FREEDOM OF THE P8E&S. 

i like freedom for anarchists to discredit the govcromcot in 
the hope of ultimately securing its peaceable abolition. There 
is no doubt, either but that practically all llieie same news- 
papers can be relied upon to advocate the suppression of all 
fcarching and enlightening sex-discussion. So also 1 know 
an aaarchisi who, probably from fear of being wrongly sus- 
pected of believing in the forcible abolition of government, 
hastens to explain that though he esteems all govenunent a 
nuisance he still thinks it proper for government to suppress 
even the fruitless advocacy of crime. Again, I know some 
radical and ardent sex-reformers who think it an outrage 
that plain spoken and searching sex-dtscussion is punishable, 
but see no objection to the suppression of an equally plain 
spoken and searching discussion by some of the more radical 
socialists and anardiists. So likewise we can find Protes* 
tants who desire unlimited liberty for themselves to criticise 
the religious tenets of their Catholic neighbors, and Catholics 
who desire to use a similar liberty against the theology of 
their Protestant neighbor, but both hasten to unite for the 
punishment of the atheist who would deride (he tenets of 
both. Yet each and all of these will seriously tell you how 
afdcntly they love "freedom of speech," but they will always 
so de&ne that freedom as to leave in full force the power 
to suppress those opinions of which they disapprove. 

Let me illustrate still further. One reading a discus- 
sion of the licensing acts might easily conclude that freedom 
of the press meant only the absence of a licensor, all other 
forms of abridging free utterance being compatible with 
freedom. Another reading a definition of freedom of tlie 
press as these are sometimes formulated in relation to per- 
sonal libel, would find himself in a rather hopeless situation 
if he should seek to apply that definition to a case where the 
abstract discussion of sex-ethics was involved, and the claim 
was made that it was obscene because it tended to deprave 
the morals. Ukewise there might be difficulty in using a 
definition of freedom framed in relation to treason and seek 
to apply it to the case of a non-resistant anarchist. Errors 
of this sort have been frajuently made in the misdirected effort 
to follow precedent, and have usually resulted in the definition 
of tmabridgable freedom of speech so as to permit abridg- 
ment. 

Evidently the difficulty with most of these advocates of 

147 



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OBSCENE LITERATURE AND CONST ITUTIOSAL LAW. 

freedom is that they have no conception of freedom in gen- 
eral, and erroneously conclude that everybody is enjoying the 
greatest possible freedom when they feci themselves unre- 
stricted, though this seeming liWrty for themselves may be 
wholly due to the fact that they are utterly devcnd of anything 
like a serious, carefully reasoned opinion upon any subject 
whatever. If they had ever done any of the intellectual work 
which that presupposes, they would probably know something 
of the ease with which differences of opinion may arise upon 
every possible question and of the importance of maintaining 
the other fellow's right to disagree. 

WHAT IS "intespretation"? 

We arc now lo undertake a general discussion as to the 
interpretation of the constitutional phrase "Congress shall make 
oo law abridging freedom of speech or of the press." and we 
must first endeavor to get a clear idea of what we mean by 
"interpretation." Manifestly "interpretation" does not mean 
that we may inject words, phrases, or exceptions, into the con- 
stitutional phraseology. On the contrary.by "interpretation" we 
can only mean that we are to arrive at the meaning of the 
constitution by deductions made exclusively from the words ac- 
tually used therein, unless these are ambiguous. If there is any 
ambiKuity, in the significance of the words which guarantee our 
freedom of utterance and the right to hear, then these words 
may be interpreted in the light of the historical controversy 
which supposedly was settled by the constitutional clause in 
question. On the other hand, if the words themselves do not of 
necessity involve any ambiguity, then the historical conditions 
at the time of their adoption can be of no consequence to us in 
the matter of detennining their meaning, because if the meaning 
is plain the historical facts become immaterial and useless. If 
it can be done the significance of the constitutional phraseology 
must be determined wholly and exclusively by deductions made 
from the words themselves. 

The words "speech" and "press" certainly are not ambig- 
uous. TTiey cover every idea expressed vocally or presented OQ 
a printed page. Although it is manifestly absurd, yet some 
courts in effect have said that speech is not speech, whether ex- 
pressed orally or on the printed page, unless it can be fairly 
classed as serious and ladylike discussion. Others advise us 
that speech is not speech imlcss it was uttered "not intending to 



148 



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.oogic 



CONCIvRNIXC TRR HRANINC 



^RETOOM OF TBB PRESS, 



DUslead but seeking tn enlighten," an<j even then it is not speech 
at all if the other fellow happens to consider it to be "blas- 
phemous, immoral or seditious"; some add "obscene, indecent, 
filthy, or disgusting." So in a variety of ways courts, under the 
false pretense of "constmitJK" tliern. have amended our consti- 
tutional guarantees, of freedom of speech and of the press, so as 
to inject into them exception which the judges think ought to 
be there but which the framers of our constitutions neglected to 
insert. 

When we say thai speech isn't speech except when used in 
serious and lady-like discussion, such as does not irritate us, 
then we are indulging in sentimental nonsense, and I shall not 
be in the least inclined to change the epithet because in eflfcct 
this has been often done by "learned" judges, and "distin- 
guished" courts. I should be equally certain that the word 
"freedom." when used in connection with "speech and press," 
was entirely free of ambiguity, were it not for the extraordinary 
oteanings assigned to it by the courts, under the pretense of 
construing "freedom." It appears to mc that here the judges 
instead of interpreting the word "freedom" have interpolated 
into the constitution significations which are not at all implied 
Id any of the words therein used. It seems to me that had our 
courts used common sense, instead of blindly following prece- 
dents established by those who never believed in free speech, 
and instead of adopting definitions of (ree<l<>in framed by 
tyrants whose conception of it was repudiated by the .American 
revolution, no embarrassing questions would ever have been 
raUed. 

If the constitution had said that "Congress shall make no 
bw abridging man's freedom to breathe," no one would have 
»ny doubt as to what was meant and every one would instantly 
say that of course it precluded Congress from passing any law 
which should prohibit breathing contrary to the mandate of a 
licensor, before trial and conviction, and that it would equally 
preclude the passage or enforcement of any law which would 
punish breathing mtrely as such upon conviction after the fact 
No sane man could be found who would say that such a 
gtiarantee. to breathe without any statutory abridgment, only 
precluded the appointment of Commissioners who should 
detennine arbitrarily what persons might be licensed to breathe 
and who should not be so licensed, and that it would still permit 
Congress to penalize all those who do not breathe in the siKci- 

149 



Dn;i(;(-ift;y' 



OBSCENE LITEtATURE AND CONSTITUTIONAL LAW. 

slly prescribed manner, even though such criminal breathing 
had not injured anyone, nor could possibly do so according to 
any of the known laws of our physical universe, by which I 
include the actual knowledge of our bacteriologists as to the 
transmission of infectious diseases 

There is not the slightest reason to be given why "freedom" 
in relation to speech and press should be differently interpreted. 
The only explanation for having interpreted it differently is that 
the people generally, and judges and others in authority in 
particular, believe in freedom to breathe but, emotionally at 
least, disbelieve in freedom of speech and of the press, and 
therefore they read into the consiiluiion meanings and excep- 
tions which are not represented there by a single syllable or 
word, and which are therefore interpolated to accomplish a 
Judicial amendment of the constitution, under the false pretense 
of "construing" it, only because the judges thiiik, of rather 
feel, that the constitution ought not to guarantee freedom of 
speech and of the press in those matters which stimulate their 
emotional aversion, and so they dogmatically assert that "free- 
dom" of utterance is not guaranteed, in the same sense in whicli 
we have spoken of freedom to breathe. 

The ordinary and plain meaning of the word "freedom" 
should readily have solved all problems, if there ever really 
were any such, which were discoverable by reason uninfluenced 
by hysterical emotions. In common parlance, we all understand 
that a man is legally free to do an act whenever he may perform 
that act with impunity so far as the law is concerned. Thus no 
one would claim that another was legally free to commit lar- 
ceny, so long as larceny involved liability of subsequent criminal 
punishment. No one would say that the law leaves a man free 
to commit murder, so long as there is a taw pimishing murder. 
Likewise no man who w depending purely upon the phraseology 
of the constitution will ever say that the laws leave speech and 
press free, so long as there is any law which prescribes a 
penalty for the mere utterance of any one's sentiments, merely 

such utterance and independent of any actually accomphshed 
injury to another. 

THE ABUSE OF FRKFIX>M. 

On the other hand, it would seem equally certain, to the 
ordinary understanding, that there exists no legal abridgment 
of a man's freedom to speak or write if he is punishable 
for the abuse of that freedom, provided we mean only by 

150 



Di(rtilyu tiy 



Got>^l 



CONCERNING THE MIIANINC OF "FREEDOM OP THE PRESS. 

"abuse" an sclual and not a mere constructive abuse : that is, 
provided he is punished only for an actual and not a construc- 
tive injury, resulting from his utterance. Manifestly in such 
a case he is not punished for the speech as such, but he is 
punished for an actual ascertained resultant injury to some one 
not a voluntary adult participant in the act. 

His utterance in that case may be evidence of his complicity 
in, or contribution to that actual injury, and punishment for ao 
actual resultant injury is mot in the least an abridgment of the 
right to speak with impunity, since manifestly it is not a 
punishment for mere speaking as such, the essence of crimin- 
ality — the criteria of guilt — being something other than the 
utterance of his sentiments. Manifestly, in this view, which is 
but the natural import of the words "freedom of speech and of 
press." the expression can only mean that a man shall have the 
right to utter any sentiment that he may please to utter and do 
so with impunity, so long as the mere utterance of his senti- 
ments is the only factor in the case. It docs not exempt htm 
from punishment for murder, arson or other actual and resul- 
tant injury, but leaves it where he may be punished for his 
contribution toward and participation in bringing about these 
injuries. His utterances may be evidence tending lo 5how his 
responsibility for the actual injury which is penalized, but the 
penalty attaches on account of that injury, and can never be 
predicated merely upon the sentiments uttered without, to that 
extent, abridging our freedom to utter. When the statute does 
this the constitutional right is violated. 

OK THB MBAKINU Ol' WORDS. 

Both the word.* "speech" and "press," as used in our 
constitutions, arc limitations upon the word "freedom" as 
therein used. The purpose of this clause is to preclude the 
legislative abridgment, not of all liberty, but of liberty only 
in relation to two subjects, to wit: "speech" and "press." 
It U manifest therefore that the same word "freedom" can- 
not change its meaning according to whether the utterance is 
oral or printed. In other words, "freedom" initsl mean the 
same thing whether it relates to "speech" or "press," In the 
very nature of things "freedom of speech" cannot mean mere 
absence of a censor to whom an idea must be submitted be- 
fore utterance, because the very act of submitting the idea to 
a censor implies its utterance. Furthermore, there never 



151 



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OBSCENE UTERATURK AND CONSTITUTIONAL LAW. 

was a time wben a censor assumed to pass upon oral speech, 
prior to its utterance. Unpopular oral spccchc:s were punUbed 
ooly after utterance. The whole controversy over "free- 
dom of speech" was a dcntand thai speakers mi^it be free 
from such subsequent punishment (or those of their utterances 
which in fact had not actually injured anyone, and it wax 
that controversy which the franiers of our constitutions in- 
tended to decide for all time, by guaranteeing the Tight to 
speak one's sentiments upon any subject whatever, and with 
absolute impunity so long as no one was actually injured ex- 
cqit by his voluntary and undeceived consent, as when tbe 
person is convinced to the changing of his opinion about 
some abstract doctrine of morals or theology the acceptance 
of which his neighbors might deem a deterioration, and tbe 
new convert esteem as a moral and intellectua] advance. 
if. as I believe, tliis is the inevitable interpretation of "free- 
dom" in relation to '■speech." and llie meaning of "freedom" 
in relation to "press" must be the same, then we are irreast- 
ibly forced to the conclusion that our courts have been wrong 
in asserting that "freedom" in relation to the press means only 
the absence of a censorship prior to put^ication, without en- 
larging chose intellectual liberties which are beyond the readi 
of legislative abridgment. 

The personal and psychologic cause of this judicial destruc- 
tion of constitutional right is to be discovered in our defective 
human nature which almost unavoidably develops in judges, 
by reason of the very character of the function which they 
habitually perform, a growing lust for power, so strong that 
very, very few ever acquire suffcicntly critical intellects to 
check it, so that they can officially acknowledge the right of an 
ordinary dliien at the bar of justice to damage the judge's 
vanity, or stimulate his emotions of aversion. Thus our judges, 
(especially through contempt proceedings and vague penal 
statutes, made certain by judicial legislation) have unconscious- 
ly demanded and secured for themselves the adulation usually 
given only to an inerrant pope or king, and have almost reduced 
the judicial bench to a sacrificial altar, the members of the bar 
to a kind of lesser priesthood, whose duty it is at least by silent 
acquiescence to keep the laity in ignorance of judicial incom- 
petence and intqiiit)-. and in an attitude of suppliant humility. 

Shall this condition be accentuated and become definitely 
6xed by a continuing afiiTmance of the judicial destruction of 

152 




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OOJ^IC 



HCBRNINC THE MEANING OF FREEDOM OP TUE PHBSS. 

oor freedom of spwrch and of the press ? Will the process of 
judically amending our con.siitution» by the interpolation of 
limitations upon freedom of press st«p. or shall we have an ever 
increasing ahriilgmcnt of such liberty? These are the serious, 
questions which confront us. 

When we come to make a historical study of the meaning 
of "freedom of the press" we will at once discover (hat the 
personal elements disappear, to be replaced by humanistic 
considerations. Now it is not merely a question of imprison- 
ment or fines, hut a question of intellectual opportunity, not 
only a question of the opportunity to speak, but of the more 
important oiqx>rtunity of the whole public to hear and to 
read whatever they may choose when all are free to offer. 
Now it ceases to be a matter of the personal liberty of the 
ippeaker or writer, and must be viewed as a matter of racial 
intellectual devclopttifiit, by keejjing open all the avenues for 
the greatest possible interchange of ideas. In this aspect the 
most important feature of the whole controversy simmers 
down to this proposition, namely : that every idea, no matter 
how unpopular shall, so far as the law is concerned, have 
tiie same opportunity as every other idea, no matter how 
popular, to secure the public favor. Of course only those 
ideas which were unpopular with the ruling classes were ever 
suppressed. The essence of the demand for free speech was 
that this discrimination should cease. Tn other words every 
inequality of intellectual opportunity, due to legislative en- 
actment, was and is unwarranted abri'lgment of our 
natnral liberty, when not required by the necessity for the 
preservation of another's right to be protected against actual 
niaierial injury. 

The contention !stated at the head of this chapter will be 
amplified in statement, and will receive conclusive historical \ 
justification, when we come to the chapter on the scientific 
interpretation of freedom of speech. Before proceeding there- 
with we must, however, expose the mind-befogging judicial 
dogmatism upon this subject. 



133 



Dis'i^ency 



CHAPTER IX. 

THE JUDICIAL DESTRUCTION OF FREEDOM OF 
THE PRESS.' 

It seems to me thai before proceeding to the direct task of 
interpreting "freedom of the press," it is desirable that we 
have some general discussion as to the judicial destruction of 
liberty of the press, aixl to indicate liow this has been accom- 
plished. By such a discussion we can best get a clear under- 
standing as to the issue between the two conHicting view- 
points from which our task can be approached. 

Some words and phrase.s become so associated with emo- 
tions of approval that we instantly avow them as a part of our 
creedal declaration of faith, though very often we have no 
very real belief in nor very definite conception of tliat which 
the words symbolize. This is often illustrated in religion, 
where men give avowed support to creeds, almost every detail 
of which they will repudiate under a searching cross-examina- 
tion. So likewise is it with our constitutionally guaranteed 
"freedom of the press." As a genera! pr'^position every one 
professes belief in it and yet in the concrete apparently nobody 
upholds it, except for self, and almost everybody can be relied 
upon to indorse some abridgment of freedom of the press 
whenever others wish to use that freedom to express anything 
radically different from their own thoughts, especially if 
"moral" sentimentalism is involved. Thus it comes that men, 
trying to frame definitions of freedom, practically always leave 
a loop hole for at least their own pet tyranny and censorship 
over opinion. 

As a result of this, all but universal, emotional disapproval 
of unlimited intellectual liberty, it has come to pass that our 
courts, in their efforts to make effective the judges' disbelief in 
freedom of the press though consiruinR our constitutional 
guarantee of it, have by their authoritative dogmas amended 
our constitutions with the jiidici.il interpolation of exception." 

*Kt[iubllib«l fiDin TItr AlbBmy f.«v /iiHnial ind Gevtrmm n* . 

154 



Die liluu tiy \^^ O OQ I C 



THE JUDICIAL DBSTHUCTION OF FREEDOM Of TIIK rKKSS. 

never even vaguely hinted at in our fundamental laws. The 
unintelligent mob, eii^os^ied witii its necessary sordid hcH- 
sccking, without even a whispered protest has acquiesced in 
these successive encroachments upon the liberty of the presSr 
until to-day there is not a state in the union whose laws do not 
punish the mere psychologic crime of expressing unpopular 
ideas, even though no one is .shown to have been hurt as the 
result. The remarkable thing is that the constitutionality of 
those laws is seldom questioned, and when the paper guarantee 
of liberty of the press is invoked, the courts have promptly 
and almost uniformly amended the constitutional guarantees 
of freedom of speech and press by dogmatically writing into 
Ibem new exceptions and limitations, which are not represented 
by a sbgle word in the constitution itself, but which find 
abuodant justification in ancient precedents coming from courts 
whose judges were tyrants, or the minions of tyrants, or who, 
through woefully limited intellectual vision, sought to define 
liberty by generalizing a single fact, and thus made freedom 
mean only the absence of the one particular abridgment of 
it, which alone was then within contemplation, and occufried 
a place so near as to obscure the more remote but larger possi- 
bilities for the tyrannous invasion of liberty. 

When moral sentimentalizing becomes focused about one 
or a few subjects, by being widely advertised by a fanalical 
and well organized band of zealots which lends its aid, the 
courts, with the concurrence of legislatures and in spite of 
constitutions, exercise a power to amend ' our charter of 
liberties and to enforce the abridgment of the freedom of 
the press. To this end it is only necessary to neglect one simple 
mle of constitutional construction. This done and under the 
guise of interpretation, meanings and exceptions, which are 
not expressed therein by a single word or syllable, will be, 
as they have been, dogmatically read into the constitutional 
phraseology, instead of developing the actual and literal signi- 
fication of the words really used. English precedents, where 
only discretion tempers t>Tanny, can be easily misapplied to 
furnish a seeming justiltcation for a judicial "interpretation" 
nich as eflfcctively accomplishes the judicial amendment of our 
constitutional guarantee for a free press. Many circumstances 
have combined to induce State courts, unconsciously, to inter- 
polate exceptions into the free-press clause of State consti- 
tutions, and so precedents have already been made, which if 

155 



Dn;ii;t--ytiy' 



.OOi^lC 



OBSCENE UTESATURE AND CONSTITUTIONAL LAW. 

followed to their logical conclusion would vest all American 
legtslativc bodies with power to sui)press every opinion upon 
every subject, should it choose to do so. 

Too often legislators and jmlges have been afflicted with 
political myopia and no Iiave seen only what seemed to them 
the beneficent immediate effect of their official destruction of 
the constitutionally guaranteed natural liberty of the citizen, 
and because of tliis shortsightedness have failed to sec how 
every such additional liberty-invading prcceilent is related to 
the ultimate destruction of liberty and the unavoidable reaction 
through revolution by violence. Every invasive act. acquiring 
even a seeming acquiescence, contributt-j to the momentum by 
which we are increasingly inspiring thoughtful men with a 
contempt for the impotency of constitutional protection, and 
(or governments, and simultaneously every such submission, 
even to a popular tyranny, inspires ambitious zealots with new 
hope for the realization of their lust for power. Thus by 
gradual stages we all thoughtlessly contribute to the develop- 
ment of that tyranny which in the end can be and is overthrown 
only by a violent revolution. 

THE CONTEMPT FOR CONSTITUTIONS. 

It is by such processes, for which the courts are largely 
responsible, that all constitutions have in the end come to be 
held in contempt, by thoughtful liberiy-loving men as well as 
by the narrow-minded with autocratic ambitions. A few illus- 
tiaiions will suffice. "Cc n'cst qii'tn Anglflerre, ou Ton 
pourroit fairc ni avoir des livres sur des constitutions," said 
one of the most enlightened English ambassadors in Europe ; 
and it is but a very few years since a French gentleman an- 
swered a foreigner who inquired for the best book upon the 
constitution of France, "Monsieur, c'est I'Almanach Royal,"' 

Likewise, tn England, the wise and calm Herbert Spencer 
said: "Paper constitutions raise smiles on the faces of those 
who have observed their results." and in America General 
Trumbull is reported as having opined that, "The constitution 
has hardly any existence in this country except as rhetoric." 

This sort of contempt for constitutional guarantees is based 
upon a real love of constitutional liberty and despair at finding 
its guarantee explained away by those whose contempt for the 
constitution is based upon a contempt for liberty itself — a lust 
for the power of an autocrat. Of that we also have an abund- 

'Jokn AdATDB in A Dcfmc* oi cht Cofsciiiutiou oi G^voranml of tb« U, 5- 

156 



Dnjii:«:t;vV...»( 



THE JUDK 



muCTlON OV I'RKEBOM OF THE rtlESS. 



ance in the United Stales. Years ago when the constitutionality 
of some anli-Monman legislation was itnrler consideration. 
United States Senator Cullom is reported to have said that "in 
the United Staler there is no con;<titiition but public opinion." 
Later. G>ngrcssman Timothy Sullivan inspired a nation with 
mirth, but not with resentment, under the following circum- 
stances: He was urging President Cleveland to >i;^ a bill 
which had passed the Congress, and the President objected be- 
cause he believed it unconstitutional. Our earnest states.man 
broke in with this plea, "What's the constitution as between 
friends?" And so it is with our professional reformers. We 
can almost hear them say : "What's the constitution when our 
moral sentimentalism is involved?" We also lind Fresideni 
Roosevelt and his Secretary of State boldly encourapng con- 
tempt for the constitution by publicly urging its judicial 
amenrlnient. President Roosevelt in hi* Harrisbnrg lijieech 
said: "We need through executive action, throu^ le^sla- 
tion, and through judicial inter pretaiion and construction to 
increase the fower of the federal Goivrnment. If we fail 
thus to increase it we show our impotence." Again, read the 
foregoing in the light of Mr. Roofs utterance. "The distin- 
guished Secretary of State declared that it was useless for 
the advocates of State rights to inveigh against the extension 
of national authority. • • • gmi thai construclions of the 
constitution would be found to vest the power in the national 
government" Here, then, we have the distinct admission by 
the highest officers of our nation thai they desire to exercise a 
power which according to their own view the constitution does 
not confer, and that in «pite of their official oath to uphold the 
constitution as it is they proposed to amend it. not hy the 
method therein prescribed, but in conteniptous disregard of 
the constilulion itself by "executive action, through legislation 
and judicial interpretation and construction" to accomplish a 
perjured ustiq^ation of power and corresponding destruction of 
constitutional lil>erty. 

When hist for power becomes so lawless as openly and 
deliberately to justify usurpation and official pcrjur)'. and when 
such conduct does not in the least impair the aspiring auto- 
crat's popularity, our love and understanding of liberty has 
come to a vcr>- low ebb. Will our courts en<lorsc such proc- 
esses as applied to freedom of the press? 

The purpose of this essay is primarily to protest against the 



1S7 



Disiiioa cy ' 



.00^ Ic 



OBSCENE LITERATURE AND CONSTITtmONAL tAW. 

judicial amendment of constitutional guarantee of liberty, and 
specially that liberty which underlies all others, the liberty to 
speah and to read. Only by way of contrast will we be con- 
cerned with the meaning of freedom of the press as we find it 
abridged in actual practice. Here it is intended only to exhibit 
the conflicting view-points, which will be very important in 
answering the question. What ought to be the practical effect 
and judicial significance of our constitutional guarantees of 
freedom of the press? With slight variations all our guaran- 
tees upon this subject arc typified by these words of our fed- 
eral constitution. "Congress shall make no law • • * abridg- 
ing the freedom of speech or of the press," How, if at all, 
does this provision operate as a limitation upon the congres- 
sional power to regulate the mails, commerce, etc., etc.i* 

CONFUCrlNC VIEW-POINTS. 

As the discussion progresses, it is important to keep in 
mind several conflicting view-points. It seems to me that, be- 
cause of having neglected to consider these diversities of view- 
point, courts have been ted strangely and far astray in their 
alleged "interpretations" of "freedom of the press." Is this lan- 
guage of the constitution to be interpreted as having been in* 
tended to protect or enlarge only the commercial opportunity of 
printing-press owners, or is it from the view-point of a pro- 
tected and enlarged intellectual liberty that we arc to proceed 
to the task of interpretation ? Was it only to protect the per- 
sonal privilege of the speaker or printer to utter his sentiments 
to himself in solitude, or are we to view the constitutional 
guarantee also from the view-point of protecting all the rest of 
humanity in an opportunity to hear and to read, if they choose, 
anything that anyone else would be willing to communicate 
if permitted? 

Was it achievement of the first, or an enlargement of in- 
tellectual liberty, and the abolition of the mere psychologic 
crime of an unfruitful "immoral" thinking which was to be ac- 
complished? Can it be thattheonly object of the framersof our 
constitution was the mere abolition of a censorship before pub- 
lication, in favor of a censorship after publication, without any 
actual enlargement of intellectual liberty? Such censorship 
prior to publication had been abolished in England prior to 
the American revolution. Did the makers of our constitution 
believe the people before that revolution enjoyed adequate 
liberty of the press, or was it the intention by our constitutional 

158 



I 



Dnj lJIt.-i: uv ' 



THB JUOIHAL DESTRUCTION OP FREEDOM OF THE PRESS. 

guaranty to insure an cnlargemeni of the liberty of the pKss 
above that which had I)een enjoyed? 

Merely to ask these questions would seem to answtr (hem 
and yet. strange lo say, when the question of the freedom of 
the press has come up for judicial interpretation, courts have 
usually evaded the obvious answer, and have amended the con- 
stitution by "intcrpretalions" which interpolate, and which leave 
oar freedom just where it was in England before the revo- 
latton, 

in order to interpret "freedom of the press" correctly, it 
seems to mc that we must approach our problem in the light 
of the pre-rcvohitiiKiary cuiitrnversy over the question of 
intellectual liberty, which controversy our constitution-makers 
intended to settle for all time. Under the English system there 
was no controlling limitation upon the parliamentary power to 
abridge the hberty of the press, and such freedom was enjoyed 
only, according to parliamentary discretion, as a privilege 
exercised by permission, and not as a constitutionally protected 
right which could be exercised with impunity in spite of par- 
liamentary enactments to the contrary. Under such a system as 
the English, liberty of the press could mean only such remnant 
of liberty as remained after parliamentary abridgment. Some 
American courts, crringly accepting the English judicial prec- 
edents, have defined our constitutional freedom-as-a-right to 
mean only what freedom had been declared by English courts 
to be under their different system, wherein was defined only 
the liberty which was a matter of permission by royal or parlia- 
mentary munificence. This suggests an issue as lo whether we 
shall continue to misinler)>ret our unabridgable constitutional 
"freedom of the press" to mean only the same thing as I'lat 
which, prior to the revolution, the English courts had described 
as their abridgable remnant of an unguaranteed freedom by 
permission ? Or. on the other hand, must we assume that our 
conMitulion makers intended to enlarge our intellectual liberty 
m accord with views of "freedom of the press" entertained by 
those who were opposing the English (judicial) conception? 
If an unabridged intellectual liberty was not intended, then 
there was no need of any mention of the subject in our consti- 
tutions. .•\ccording to the first view it has been held that, not- 
withstanding our constitutions, freedom of Ihc press may be 
abridged by legislation just as much as it was, or can be, by 
the English parhameni, the only difference being as to method, 
the constitution prohibiting only censorship prior to publica- 

159 



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oo^lc 



OnSCSKK LITGDATUkE AND CONSTITUTIOIf AL LAW. 

tion. but. as to subj eel-matter, having an equal power with the 
English parhament to suppress and punish after publication. 
Under this "interpretation." quite generally accepted in Amer- 
ica, the constitution only changed the manner of censorship, 
somewhat for the worse, without protecting or guaranteeing 
any enlarged intellectual opportunity. According to the r.i'icT 
view-point the constitution was designed to protect, beyond all 
possibihty of abridgment, an enlarged intellectual opportunity, 
not by changing the manner of censoring, or the time of appli- 
cation of censorial methods, but by the destruction of all cen- 
sorship by prohibiting forever any punishment of any sort, for 
any mere intellectual or psycho lofjical crime of any nature 
whatever, until it had ceased to be merely a psychological crime, 
by having become an actually realized material and proved in- 
jury to some actual living being, or the imminent menace of 
such injury, determined by the known laws of the physical uni- 
verse, as applied to some overt act in consummation and exe- 
cution of an expressed desire to inflict such injury. In such 
event no speech, merely as such, is punishable, and no crime 
can be predicated upon uncertain speculation about mere psy- 
diologic tendencies. The crime attaches to an actual injury 
actually attempted or inflicted. The speech is only the evidence 
of intent, not the essence of the offence. This view still awaits 
its first adequate presentation for judicial adoption in America. 
There is another reason why the judicial statements of Eng- 
lish courts, as to the meaning of freedom of the press, are of 
no possible value as precedents in the interpretation of our 
constitutional prohibition against the abridgiuent of freedom 
of the press, The reason will be manifest upon a moment's 
reflection. In England there arc no restrictions upon the power 
of parliament to prevent its abridgment of the freedom of the 
press. It follows that declarations of English courts, therefore, 
are not the judicial interpretation of any constitutional clause 
or right, nor the declaration of any general principle which 
could control the validity of Mich laws either in England or 
America. On the contrary, there heine no fundamental and 
binding restriction on parliament, or the English courts, against 
abridging freedom of the press. English judicial statements as 
to the meaning of such freedom as exists in England could not 
be a declaration of legal principle as to the constitutional limits 
of such liberty in the United States, but on the contrary Eng- 
lish authorities state only a fact of observation, namely that 
onder English conditions, freedom of the press means only such 

]60 



Dffiii:t-f:t;v' 



THE JUDICIAL DBSTltUCTIOK OF FREeDOU OF THE PRESS. 

limited (rctdom as remains after its abridpmcnt, in the par- 
liamentary exercise of an unrestricted power to abridge. 
In otJier words, every judicial or polemical utterance coming 
from Engti5h sources is the declaration of what they mean by 
freedom of the press when such liberty is liberty by permission 
of parliament, and in the nature of things this can furnish no 
guide as to what is meant by American constitutions which 
were specifically designed to abolish English conditions upon 
the subject and which seek to establish liberty i>f the press as 
a right in spile of all legislative abridgments. American 
courts, by neglecting this distinction, have erringly followed 
English statements of their mere facts of practice, and because 
wc mistook them for declarations of constitutional principles, 
and used them as guides in constitutional construction, our 
courts have almost reduced our liberty of press from liberty- 
as-a-right to mere liberty as a matter of permission, which is 
not liberty at all. 

To accomplish the destruction of freedom of speech and of 
the press in America our courts dogmatically assert that tho 
purpose of the constitution was, not to enlarge the intellectual 
liberty of the dtiien, but simply to replace a censorship before 
printing to a criminal prosecution for having printed or pub- 
lished. This has been seemingly justified by the erroneous 
adoption of English precedents as a means of constitutional 
interpretation. Of course the judicial way of stating this prop- 
osition adroitly veils that direct avowal whose blunt absurdity 
my form of statement exposes, fjere is the judicial formula: 
"The main purpose of such constitutional provisions is 'to pre- 
vtnt all such previous restraints upon publications as had been 
practiced by other governments' and they do not prevent the 
subsequent punishment of such as may be deemed contrary to 
public welfare."* Tliere you have it! By judicial amendment 
our constitutional freedom of <ipeech and of the press has been 
wholly explained away, and legislatures and courts now have 
the right to punish after utterance any opinion which "may be 
deemed against the public welfare." just as fully as such opin- 
ions may be punished in Russia or Turkey. Is this really free- 
dom of speech and of press? The Supreme Court of the Uni- 
ted States, the final arbiter and alleged "guardian" of our con- 
stitutional liberty, in the last above quoted sentence ha« said 
that the words "Congress shall make no law abridging the 
freedom of speech or of the press," means that within it* 

■Puunan *. People IT Sop' Cl. Ke^ tSS-SM. i 

161 ' 



Disiiiaa cy ' 



.OOi^lC 



ODSCSNE LITBXATURB AHD CONSTITUTIONAL LAW. 



geographical jurisdiction the courts must enforce any law 
which congress chooses to make to punish the verbal utter- 
ance of any and every thought, by the congress "deemed 
contrary to public welfare." 

The expression of opinions approved by lliosc in power had 
never been abridged. Those who were waging the battle for 
intellectual liberty and suffered for having exercised freedom 
of speech and of press, tliought by our constitution they had 
finally secured protection for the expression of those unpopu- 
lar opinions the promulgation of which had theretofore been 
punished because "deemed against the public welfare" — that is. 
because unpopular. And now comes our Supreme Court and 
restores the pre-revolutionary tyranny over ideas, by saying in 
substance that "freedom of speech and of the press" means the 
right to be punished for speaking and publishing ideas which 
are deemed against the public welfare, because unpopular. 
Those who have thought a constitutionally guaranteed free* 
dom to -ipeak means freedom lo speak with impunity, so long 
as no one is actually injured thereby, will hereafter understand 
that, as in Russia, our liberty is but a hberty by permission, 
to be punished whenever exercised without that permission of 
our masters, who have limitless pmver to punish the publica- 
tion of unpopular opinions, "deemed against public welfare." 
When the question is fairly presented, will the court adhere to 
this pernicious dictum? The judicial opinion hereinabove 
quoted is not constitutional interpretation, but judicial consti- 
tutional amendment, by interpolation. The judicial language 
was never derived by deductions made from any words actually 
used in the constitution, but on the contrary they were judicially 
read into the constitutional phraseology, thus accomplishing the 
judicial amendment of our constitution by unconstitutional 
methods, and utterly destroying "freedom of the press" as a 
right, and creating instead a liberty by permission. Shall this 
be the permanent interpretation of our constitutional guarantee? 
This is tlie question to be decided, and is by far the most 
hnportant question ever presented to the Supreme Court of the 
United Sutes. 




JUDICIAL DOGMATISM ON "FREEDOM OF THE 

PRESS." 

If we may determine the intellectual bankruptcy of our 
American judges by their utter incapacity for using logical 
processes in the presence of slight emotional irritation, then 
I fear that our courts must be adjudged to have assumed ob- 
ligations largely in excess of their intellectual resources. This 
u a sweeping and a terrible indictment ; but, is it true? To me 
it seems to be true, and largely upon the record made by the 
courts in their dogmatizing concerning "freedom of the press." 

Where the constitutional guarantee of "freedom of speech 
and of the press" is involved before a court, unless the judge's 
emotions and unreasoned sentimentalism determined his "con- 
ilruction" of the constitution, he would find the constitu- 
lional meaning in the actual words of that instrument, from 
which the court would deduce a criterion of "freedom" for 
application to and decision of the case before it and all others 
as well. Not in a single case has this rational method ever 
been attempted. Instead the courts have drawn on their 
"ini>er consciousness," and by consulting only their temporary 
emotions have determined what, according to their feeling-con- 
victions, the Constitution ought to be, and then dogmatically 
decreed this, their own personal will, to be the true intent and 
meaning of the Constitiitton — that is, they made their own 
per«onaI wish to be the Constitution itself. 

But my critics will say that maybe "freedom of speech" 
is so vague a phrase as not to permit of the above method of 
interpretation and therefore the courts should not be criticised 
for having failed to use it. In the first place, I do not believe 
the phrase in question to be so vague as to justify any other 
fnethod of constitutional construction. Neither do the courts 
believe it ; at any rate not one court has ever attempted to de- 
diKC a meaning — a criterion of freedom of the press — from 

163 



DnjH2t--;itiy' 



.00^ Ic 



OBSCENE LITESATUKE AND CONST ITtTTIONAL LAW. 

the words of the constitution, md tJiereupon decided that it 
couldn't be done ; and, what is more important, no court has 
ever pursued the only rational alternative, which presents 
itself when the constitutional lan^age leaves the matter in 
doubt 

What is that alternative? If the constitutional phrase 
"freedom of the press," does not in and of itself furnish the 
criteria of permissibility in intellectual output, the court should 
have said so, and accordingly pursued the historical method of 
interpretation. By the historical or scientific method, as ap- 
plied to this problem. 1 understand a mode of research into 
our juridical history which will discover to us those controver- 
sies over "freedom of speech and of the press" which had oc- 
curred before our constitution, and which issues it was intended 
that our constitutions should settle forever. Furthermore, a 
moderately well trained mind would not stop at a mere super- 
ficial view of these past contests. It h not enough to learn that 
at one time the abridgment of free utterance was concerned 
with religion: at a second with the divine right of kings; at 
a third with the abolition of a censor, at a fourth with the pen- 
alizing of speech without reference to or the existence of a 
censor; and at a fifth that it involved the right to denounce 
usury, etc, etc I say ; a lawyer whose intellectual attain- 
ments are such as to make him a scientist of the law, would 
not content himself with the superficial view or tabulation of 
these controversies, which thus present so varied an aspect. 
and then conclude that such and only such particular abridg- 
ment was involved in the past issues, and only its recur- 
rence precluded by our constitutionally guaranteed unabridg- 
able freedom of utterance. That is the method of those atfiicted 
whh arrested intellectual development. In contrast to this. 
the scientifically cultivated mind will examine alt these particu- 
lar incidents and issues of the past abridgment of utterance, 
to discover the fundamental elements common to them all, 
though imperfectly seen and cnidely expressed by the contro- 
versialists of those time*. Tlicse elements, common to all these 
controversies, the legal scientist will generalize into principles 
which furnish the criteria of freedom and therein find the true 
meaning of our constitutional guarantee of an unabridged free- 
dom of utterance. Although the opportunity and the duty to 
do this has often presented itself to our courts, seemingly no 



164 




L.'liili;t--ilt;y 



30glC 



JUDICIAL DOGMATISM ON FREEDOM OF THE PRESS. 

judge has ever been able to see tt. Even in the few cases 
where the courts have sustained the contention in favor of 
freedom of utterance, tlie same defective intellectual methods 
were used. The courts drew on their "inner consciousness," 
dogmatized, and made- arguments showing what the Constitu- 
tion ought to be, rather than analynng what it is. In the face 
of this fact, may we not assert the intellectual bankruptcy of 
our judiciary? 

1 said that no court had ever pursued the historical or 
Kientific method of inquiry as to what was meant by an un- 
abridged freedom of utterance. They have done something 
much worse than merely to neglect it. In their blind unintelli- 
gent gropings for something tangible upon which to rest their 
emotional aversion to freedom of utterance, they adopted the 
pre-rcvolulionary declarations of English anthorilies, who (like 
many American Judges) were all passionately opposed to free- 
dom of criticism of established opinions, and whose utter- 
ances only declared the existing practise under a system which 
permitted abridgment, and thus made freedom to speak only a 
freedom by permission, with admitted power to withhold that 
permission. 

Under the influence of their emotional aversion to free- 
speech, our judges were usually unable to see the difference 
between the Enghsh practise of an abridgable freedom by 
permission, where only expe<liency tempers tyranny, and the 
American principle of an unabridgable freedom of utterance 
guaranteed as a matter of right and to he maintained in spite 
of all considerations of expediency to the contrary. I say, our 
courts have uniformly lacked the intellectual capacity to see 
this difference, and so were blindly led into following the Eng- 
lish authorities which were uniformly opposed to freedom of 
utterance. By adopting their statement of what the English 
practise was and erroneously mistaking that mere fact of 
practise for a declaration of human right and of constitutional 
principles, our American courts have dogmatically amended 
our constitutional guarantees, so as to reduce liberty in this 
respect to just what it was in England before the time of the 
American Revolution. Under our constitutions, as thus judici- 
ally amended, any legislature in spite of the constitution as it 
originally was written, may abridge freedom of speech and 
press in any respect in which tl and the judges who determine 
what is constitutional shall concur in approving, and declare 
to be in the interest of the public welfare. 

i65 



Disuse" cvO* 



OBSCENE LITERATURE AND CONSTITUTIONAl. LAW. 

These are serious charges to bring agfainst our courts, and 
are not to be accepted on my mere assurance that 1 believe 
them to be true. I fear it would be no more satisfactory if I 
contented myself with merely citing the cases which have 
brought me to this conclusion, because no one would take the 
time and trouble to examine them. It follows that if I would 
convince anyone, I must reproduce the essential portion of all 
these judicial opinions. To do this will require much space, 
but that cannot be avoided. I also regret very much that like 
space-limits will not allow me to comment iieparalely on each 
specific utterance which 1 shall quote, and thus aid the sluggish 
mind in applying the foregoing standards of judgment to 
the decisions actually rendered. 

However. $ince this cannot be done, I can only request the 
reader to keep definitely in mind what I have said above as 
to the proper method of judicial interpretation, and in the light 
of the standards thus erected to read tlie following liberty-de- 
stroying judicial dogmatism, of the most pernicious and most 
inexcusable sort. What follows includes all the quotable and 
material portion; of the reported judicial utterances as to the 
meaning of "freedom of speech and the press" which my re- 
searches have disclosed to me. 

ARKANSAS. 

State vs. Morrill. i6 Ark. 384 (40 2-3) , 1855. The Arkan- 
sas Bill of Rights provides: (Sec. 7) "That printing presses 
shall be free to every person : and no law shall ever be made 
to restrain the rights thereof. The free communication of 
thoughts and opinions is one of the invaluable rights of man; 
and every citizen may freely speak, write and print on any 
subject, being responsible for the abuse of that liberty." The 
defendant was charged with criminal contempt, for the publi- 
cation of an article supposed to intimate that the court had 
been corruptly influenced in the determination of a certain 
cause. The defendant invoked a statute limiting the power to 
punish for contempt to which the Court said : "The prohibitory 
clause is entitled to respect as an opinion of the legislature, 
but is not binding on the Courts." they possessing an "in- 
herent" power to do their own legislating, even ex post facto, 
on the subject of contempt- 

Upon the subject of the Constitutional right of freedom 
of utterance the Court said: "The last clause of the section. 



166 



Die teen cyO* 



JUDICIAL DOCHATtSM ON "FReCDOU OF THF. PRESS,' 

•being responsible for the xbuse of that liberty,' is an answer 
to the argument of the learned counsel. • • * 

"Any citizen has the right to publish the proceedings and 
decisions of this court, and, if he deem it necessary for the 
public good, lo comment upon them freely, discuss their cor- 
rectness, the fitness or unfitness of the judges for their sta- 
tions, and the fidelity with which they perform the important 
public trusts reposed in them ; but he has no right to attempt, 
by defamatory publications, to degrade the tribunal, destroy 
public confidence in it, and dispose the community to disregard 
and set at naught its orders, judgments and decrees. Such 
publications are an abuse of the liberty of the press, and tend 
to sap the very foundation of good order and well being in 
society by obstruclini; the cuursc of justice. If a judge is 
really corrupt, and unworthy of the station which he holds, 
the constitution has provided an ample remedy by impeach- 
ment or address where he can meet his accuser face to face, 
and his conduct may undergo a full investigation. The liberty 
of the press is one thing and licentious scandal is another. 
The constitution guaramees to every man the right to acquire 
and hold property, by all lawful means; but this fumi&hes no 
justification to a man to rob his neighbor of bis lands or 
goods." 

CAUFORNIA. 

TT>e California Constitution of 1879 provides: "Every citi- 
ten may freely speak, write, and publish his sentiments on all 
subjects, being responsible for the abuse of that right; and 
no hw shall be passed to restrain or abridge the liberty of 
speech or of the press." 

Ex parte Barry, 85 Cal. 603, 607-8 ; 35 Pac. 256. ( 1890.) 
Habeas Corpus proceeding on commitment for contempt in 
publishing an article attacking a judge for conduct in pending 
action. 

The Coun said: "This may be Ime in the sense that the 
liberty to speak and write on any subject cannot be restricted 
or prevented in advance, and that the only remedy is to punish 
subsequently, for atiy publication that amounts to an abuse of 
such liberty. That, is precisely what was done in this case. 
• * • The hberty of the pre^s to fairly criticise the official 
eooduct of a judge or the decisions or procecdinRS of the 
courts, and to expose and bring to light any wrongful, cor- 
rupt or improper act of a judicial officer, is one that should 

167 



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.ooj^lc 



OHSCENK LITEKATUKE AND CONSTITUTIONAL LAW. 

be carefully preserved and protected by the courts. • • • 
But the publisher of a newspaper, who assumes to criticise or 
censure a public officer or the proceedings of 3 court, must 
know whereof he speaks. If he censures unjustly or charts 
falsely, he must be held strictly accountable. While his right 
of free speecli is protected, his abuse of it must be punished. 
The great trouble with the freedom of the press at the prcs- 
fnt day, so far as it affects the courts, is that it is used in- 
discriminately in many cases, not with the laudable purpose of 
correcting abuses and exposing wrongdoing, but lo gratify ill 
will and passion, or pander to the passions or prejudices of 
others. This tendency should be severely condemned and pun- 
ished, not only for the protection of the courts and the pres- 
ervation of a pure and indqjcndent judiciary, but as a means 
of upholding the liberty of the press in its true sense." Writ 
denied. 

Ex parte Shartridge, 99 Cal. 536. (S35). (1893.) Coo- 
tcmpt proceeding for publishing testimony in divorce case in 
violation of court order. Appellant adjudged not guilty by 
Supreme Court on review. 

The Court said : "Liberty of the press must not be con- 
founded with mere license. Liberty of the press stops where 
a further exercise would invade the rights of others. This 
provision of the constitution does not authorize a usurpation 
of the functions of the courts. Under the plea of the liberty 
of the press, a newspaper has no right to assail litigants during 
the progress of a trial, intimidate witnesses, dictate verdicts 
or judgments, or spread before juries its opinion of the merits 
of case* which are on trial. • • ■ 

"As the article in question docs not go beyond these 
limitations, and as the section under which the court below 
proceeded to judgment, clearly does not authorize the order 
which was made, the proceedings must be armulled." 

DaiUy v. Superior Court of San Francisco. 112 Cal. 94 
(99,100). (1896,) Certiorari to review order forbidding the 
public performance of a play based on the facts of a pending 
crinunal trial. Order annulled. 

The Court said: "The purpose of this provision of the 
constitution was the abolishment of censorship, and for courts 
to act as censors is directly violative of that purpose. [Then 
the court quotes with approval Blackstone and those follow- 



168 



Disli^racy 



JUDiaAL DOGMATISM ON FREKDOM OK THE PRESS. 

ing him and then concIud« :] In effect the order made by the 
trial coun was one commsnding the petitioner not to eommit a 
contempt of court ; and such a practise in novel in the exirontc. 
• • • We conclude thai the order made by the trial court 
was an attempted restraint upon the right of free speech, as 
guaranteed by the Constitution of this State, and that peti- 
tioner's mouth could not be closed in advance for the purpose 
of preventing an utterance of his sentiments, however mis- 
chievous the prospective results of such utterance. He had the 
right of free speech, but at all times was responsible to the law 
for an abuse of that right." 

OOtXtRAtX). 

The Colorado Constitution ( Art. II. sec. lo) provides "That 
no law shall be passed impairing the freedom of speech, that 
every person shall be free to speak, write or publish whatever 
he will on any subject, being responsible for all abuse of that 
liberty." 

People V. Green, 7 Colo. 244 (250,251). (1883.) Dis* 
bannent proceedings for insulting a judge on the public street. 
Defendant found guilty and disbarred. Rehearing denied. 

The Court said: "In this country, and in England also, 
the utmost liberty of speech is guaranteed hy statute and en- 
forced by the courts; the right to discu5s all matters of public 
interest or importance is everywhere fully recognized; judicial 
decisiom and conduct form no exceptions to the rule; the 
judge's official character, and his acts in cases fully deter- 
mined, are subject to examination and criticism; in most of 
the states the office is elective, and it is proper and right that 
the people should be informed of the occupant's mental and 
moral fitness. 

"True, under the guise of criticism in the public press, 
and othenvise, judges are often compelled to endure the sting 
of misrepresentation and calumny, with no other redress than 
an ordinary civil action; and doubtless it sometimes happens 
that their efficiency in office is hereby lessened, to the detri- 
ment and injury of the public service; but it is wisely con- 
sidered better that these wrongs and injuries should be toler- 
ated, than that the sacred liberty of speech, printed or spoken, 
should be abridged by lodging an arbitrary power to interfere 
therewith in the hands of the court of judge, so long as such 
criticism or libel is not designed to influence the mind of the 
judge in a cause still undetermined." • • • 

169 



Dig li^en cy ' 



OBSCENE UTEKATUie AND CONSTITUTIONAL LAW. 

"But we have found no case, and respondent has cited 
none, which extends this privilege of comment and criticism 
to assaults, verbal or physical, upon the judge in person." 

Cooper V. People. 13 Colo. 337 (367) ; 22 Pac. R. 790; 
6 L. R. A. 430 (1889.) Contempt proceeding for news- 
paper censure of judicial action in pending case. 

The Court, after quoting Blacksione and others accepting 
him as an authority in Constitutional construction, affirming 
judgment convicting defendants, said: "We woulil not (or a 
moment sanction any contraction of the freedom of the press. 
Universal experience has shown that such freedom is neces- 
sary to the perpetuation of our system of government in it» 
integrity ; but this freedom docs not license unrestrained scan- 
da). By a subsequent clause of the same sentence of our state 
constitution in which the libeny is guaranteed, the respon- 
GttMlity of its abuse is fixed. With us the judiciary is elective, 
and every citizen may fully and freely discuss the fitness or 
unfitness of all candidates for the positions to which they 
aspire; criticize freely all decisions rendered, and by legiti- 
mate argument establish their soundness or unsoundness ; com- 
ment on the fidelity or infidelity with which judicial officers 
discharge their duties; but the right to attempt, by wanton 
defamation, to prejudice the right of litigants in a pending 
cause, degrade the tribunal, and impede, embarrass or corrupt 
that due a<lministration of justice which is so essential to good 
government, cannot be sanctioned." 

People V. Stapleton. 33 Pac. 167 (173). 18 Colo. 567 
(586). {1893.) Contempt proceeding for published attack on 
judges. 

The Court said : "The liberty of the press is one thing. 
The "abuse of that liberty' is quite another. The former is 
guaranteed by the constitution. The latter is as clearly inter- 
dieted. If the liberty of the pres.* is abused, the offender may 
be held responsible therefor. Such is the common law, such is 
our constitutional provision ; and such oflcndcrs may be dealt 
with summarily for contempt, when their fabrications are 
calculated to impede, obstruct or embarrass the administra- 
tion of justice. It has not been deemed expedient by our 
people that any class of persons should be privileged to attack 
the courts, with the view to interfere with the rights of liti- 
gants, or to embarrass the admini-itration of justice. Hence' 
they ha^-e never adopted any constitutional provision granting 

i;o 



Disi'^encv V..»( 



JUDICIAL DOCUATtSM OM "fKHKDOU OF THE PRESS." 

such dan^rous license, • • * There is far more danger to 
our institutions, and far more danger to the rights of the 
people, and especially to (he rights of litigants, to be appre- 
bended from the power of the press over the courts, than 
from the power of the courts over the press. * • * Thought- 
ful citizens now understand that the danger now threatening 
our institutions is that courts are not independent enough, 
instead of being too arbiiary. 

CONNECTICUT. 
The Constitution provides : "Every citizen may freely 
speak, write and publish his sentiments on all subjects, being 
responsible for the abuse of that liberty. No law shall ever be 
passed to curtail or restrain the liberty of speech or of the 
press." 

Atwatcr v. Afornijig News Co., 67 Conn. 504 (518). 
(1896.) Action for libel. 

The Court said: "The administration of the law (the 
libel law) is concerned with two most important rights; the 
right of the individual to reparation for malicious injuries to 
his reputation, and the right of the people to liberty of speech 
and of the press. The two rights are not inconsistant, but in- 
terdependent. The individual has no right to demand repara- 
tion for those accidental injuries incident to organized so- 
ciety. Freedom of the press is the offspring of law, not of 
lawlessness; and its primary meaning excludes all notions of 
malicious injury. Indeed, any true freedom of the press be- 
comes impossible where malicious injuries are not forbidden 
and punished: and the strongest guaranty of that freedom 
lies in an impartial administration of the law which distin- 
guishes the performance of a public or social duty from the 
infliction of a malicious injury." 

State V. McKee, 73 Conn. 18 (28, 29). (1900.) Appeal 
from conviction for selling a newspaper principally made up 
of criminal news, etc.. under statute. Appeal sustained on 
technical grounds, but statute held constitutional and ap- 
proved. 

The Court said: "There is no constitutional right to 
publish every fact or statement that may be true. Even the 
rigitt to publish accurate reports of judicial proceedings is 
limited. • • • The primary meaning of "liberty of the press" 
as tmdcrstood at the time of our early constitutions were 
framed, was freedom from any censorship of the press. • • * 

171 



Ditriiiuy tiy ' 



.OOi^lC 



UltSCENK UTEKATUltE AND COMSTlTUTtONAI. LAW. 

But this fundamental guaranty [the constitutional provisioa 
for free speech] goes further; it recognizes the free expression 
of opinion on matters of church or slate as essential to the 
successful operation of free government; and it also recog- 
nizes the free expression of opinion on any subject as essential 
to a condition of civil liberty. The right to discuss public 
matters stands in part on the necessity of that right to the 
operation of a government by the people, but with this ex? 
ceplion; the right of every citizen to freely express his senti- 
ments on all subjects stands on the broad principle which sup- 
ports the equal right of all to exercise gifts of property and 
faculty in any pursuit in life; in other words, upon the essen- 
tial principles of civil liberty as recognized by our constitu- 
tion. Every citizen has an equal right to use bis mental en- 
dowments, as well as his property, in any harmless occupation 
or manner; but he has no right to use them so as to injure 
bis fellow-citizens or to endanger the vital interests of society. 
Immunity in the mischievous use is as inconsistent with civil 
liberty as prohibition of the harmless use. Both arise from 
the equal right of all to the protection of law in the enjoy- 
ment of individual freedom of action, which is the ultimate 
fundamental principle. • • • The liberty protected is not 
the right to perpetrate acts of licentiousness, or any act in- 
consistent with the peace or safety of the State. Freedom 
of speech and press does not include the abuse of the power 
of tongue or pen. any more than freedom of other action in- 
cludes an injurious use of one's occupation, business or prt^ 
erty. • * • 

"The general right to disseminate opinions on all subjects 
was probably ^^pccilicd mainly to emphasize the strong neces- 
sity to a free government of criticism Jsf public men and 
measures. But it is specified as one of the conditions of civil 
liberty, and, like other conditions of a similar nature, it neces- 
sarily involves the protection of those who may suffer from 
the wrongful exercise of any common right. * • * 

"The notion that the broad guaranty of the common right 
to free speech and free thought, contained in our constitution, 
is intended to erect a bulwark or supply a place of refuge in 
behalf of the vtolaters of laws enacted for the protection of 
society from the contagion of moral di.ieascs, belittles the con- 
ception of constitutional safeguards and implies ignorance of 
the essentials of civil liberty." 

172 



Di(i iiisn ny 



JUDICIAL DOGMATISM ON "fSEEDOM Or THE PRESS," 

FLORIDA. 
The Constitution provides that "every citizen may freely 
speak and write his sentiments on all subjects, being respon- 
sible for the abuse of that rigbt, and no law shall be passed to 
restrain or abriilj^c the liberty of spft-cli nr press," 

Joius V. To-U'ttsend's Administratrix, 2i Fla. 431 (450) ;■ 
58.4m. Rep. 676. (1885.) Action for libel. 

The Court said : "The liberty of the press means simply 
that no previous license to publish shall be required, but not 
that the publisher of a newspaper shall be any less responsible 
than another person for publishing otherwise the same libelous 
matter." 

ILLINOIS. 

The Constitution of Illinois ( 1818 and 1848) provides : "The 
free communication of thoughts and opinions is one of the in- 
valuable rights of man ; and every citizen may freely speak, 
write, and print, on any subject, being responsible for the 
abuse of that liberty." The constitution of 1870 is substan- 
tially the same with the first sentence omitted. 

Stuart V. People. 4 ///. 395 (404. 405. 406). (1842.) 
Action for contempt for publishing an article alleged to re- 
flect on Court and jury, during murder trial. 

The Court, reversing conviction, said: "Into this vortex 
of constructive contempts have been drawn, by the British 
Courts, many acts which have no tendency to obstruct the ad- 
ministration of justice, but rather to wound the feelings, or 
offend the personal dignity of the judge, and fines imposed, 
and imprisonment denounced, so frequently, and with so little 
question, as to have ripened, in the estimation of many, into 
a common law principle; and it is urged that, inasmuch as 
the common law is in force here, by legislative enactment, this 
principle is also in force. But we have said in .several cases 
that such portions only of the common law as arc applicable to 
our institutions, and suited to the genius of our people, can be 
r^arded a* in force It has l«-en modified by the prevalence 
of free principles, and the general improvement of society, 
and whilst we admire it as a system, having no blind devotion 
for its errors and defects, we cannot but hope that, in the 
progress of lime, it will receive man^ more improvements, and 
be relieved from most of its blemishes. Constitutional pro- 
visions are much safer guarantees for civil liberty and per- 

173 



Ditjiiiea cy ' 



OBSCENE LITMLATURE AND CONSTITUTIONAL LAW. 

sonal ri^ts, than those of the common law, howtver much 
they may be said to protea them. 

"Our Constitution has provided that the printing presses 
shall be free to every person who nmy undertake to examine 
the proceedings of any and every department of the govern- 
ment ; and he may publish (he truth, if the matter published 
is proper for public information; and the free communication 
of thoughts and opinions is encouraged. 

"The contempt, in this case, was by a printer of a news- 
paper, remarking on the conduct of an individual juror, who, 
whilst he was engaged in the trial of a capital case, and 
whilst separated from the public, and in charge of the officer 
of the Court, was furnishing articles for daily publication in a 
rival newspaper; and in admitting a communication from a 
correspondent, calculated to irritate the presiding judge of the 
court, though not reflecting upon his integrity or in any way 
impeaching his conduct. The paragraphs and communication 
published had no tendency to obstruct the administration of 
justice ; nor were they thrust upon the notice of the Court, by 
any act of the plaintiff in error. • • • 

"An honest, independent and intelligent court will win 
its way to public confidence, in spite of new^aper paragraphs, 
however pointed may be their wit or satire; and its dignity 
will suffer less by passing them by annoticcd. than by arraigi>- 
ing the perpetrators, trying them in a summary way; and 
punishing them by the judgment of the offended party. 

"It does not seem to me necessary, for the protection of 
courts in the exercise of their legitimate powers, that this one, 
so liable to abuse, should also be conceded to them. It may 
be so frequently exercised as to destroy that normal influence 
which is their best possession, until, finally, the administration of 
justice is brought into disrepute. Respect to courts cannot be 
compelled; it is the voluntary tribute of the public to worth, 
virtue and intelligence ; and whilst they are founded upon the 
judgment seats, so long and no longer will they retain the 
public confidence. 

"If a judge be libelled by the public press, he and Ms 
assailant should be placed on equal grounds, and their com- 
mon arbiter should be a jury of the country; and if he has re- 
ceived an injury, ample remuneration will be made. 

"In restricting the power to punish for contempt, to the 
cases specified, more benefits will result than by enlarging it. 

174 



Dicto-acyt^iOOi^lC 



JUDICIAL DOGMATISM ON "PUKEDOM OP THE PRESS." 

Il is at best an arbitrary power, and should only be exercised 
on the preservative, and not oa the vindictive principle. It i» 
not a jewel of the court, to be admired and prized, but a rod 
rather, and most potent when rarely used." 

PtopUv. IViison, 64 ///. 195 (214, 215). (1873.) Action 
for contempt for publication reflecting on the action of the 
court in a pending matter. 

The Court, finding defendants guilty, said: "Let us say 
here, and so plainly that our position can be misrepresented 
only by malice or gross stupidity, that we do not deprecate, nor 
should we claim the right to punish any criticism the press 
may choose to publish upon our decisions, opinions, or otTicial 
conduct, in regard to cases that have passed from our juris- 
diction, so long as our action is correctly stated, and our official 
integrity is not impeached. The respondents arc correct in 
saying in their answers that they have a right to examine the 
proceedings of any and every department of the government. 

"Far be it from us to deny that right. Such freedom o( 
the press is indispensable to the preservation of the freedom 
of the people. But certainly neither these respondents nor 
any intelligent person connected with the press, and having a 
just idea of its responsibilities, as well as Its powers, will 
claim that it may seek to control the administration of justice 
or influence the decision of pending causes. • • • 

"Regard it in whatever light we may, we cannot but 
consider the article In question as caicutated to embarrass tlie 
administration of justice, whether it has in fact done so or 
not, and, therefore, as falling directly within the definition of 
punishable contempts, announced by this court, in the case of 
Stturt V. The People. It is a contempt, because, in a pending 
case of the gravest magnitude, it reflects upon the action of 
the court, impeaches Its Integrity, and seeks to intimidate it 
by the threat of popular clamor.*' 

Storey V. People, 79 ///. 45 (sa-JS) (1875.) Contempt 
prt)ceedtng for publishing article reflecting on the Grand 
Jury. Conviction reversed. 

The Court said: "This language, plain and explicit as it 
b, cannot be held to have no application to courts, or those by 
whom they arc conducted. The judiciary is elective; and the 
jurors, although appointed, are, In general, appointed by a 
board whose members are elected by popular vote. There is. 



"75 



Ditrii;t.'ti tiy ' 



OUSCENB LITKRATURe AND CONSTITXTTIOMAL lAW. 

therefore, the same responsibility, in theory, in the judicial 
dcparlmcnt. that exists in the legislative and executive de- 
partments to the people, for the diligent and faithful discharge 
of all duties enjoined on it and the s^ne necessity exists for 
public information with regard to the conduct and character 
of those intrusted to discharge those duties, in order that the 
elective frandiise shall be intelligibly exercised, as obtains in 
regard to the other departments of the government." 

tKDIANA. 

The Indiana Constitution provides; "No law shall be 
passed restraining the free interchange of thought and ofunion, 
or restricting the right to speak, write, or print, freely, on any 
subject whatever ; but for the abuse of that right every person 
shall be held responsible. 

Ckeadle v. Stotf. iio Ind. 301 (312,313). (1886.) Ap- 
peal in contempt proceeding for publishing articles reflecting 
on the Court. Appeal sustained, judgment reversed. 

The Court said: "There are cases on record from which 
an inference might be drawn that the statement in question 
constituted a contempt, as it was doubtless considered in this 
ease; but it must be home in mind that the force of public 
opinion in this country, in favor of the freedom of the press. 
has of late greatly restrained the courts in the exereise of 
their power to punish persons for making disrespectful and 
injuriou<: publications. * * * No one ought to be found 
guilty upon a doubtful charge of indirect contempt, and espe- 
cially so in a case in any manner involving the freedom of the 
press. 

"It is true that too often, under the guise of a guaranteed 
freedom, the press transcends the limits of manly criticisms, 
and resorts to methods injurious to persons and tribunals 
justly entitled to moral support of all law-abiding citizens; 
but such digressions are not always unmixed evils, and it is 
only in rare instances that legal procee<lings in repression of 
such a license can. with propriety, be resorted to. 

"When such a digression becomes loo flagrant to be dis- 
regarded, a prosecution for libel is usually the mo^ appropri- 
ate and efTective remedy. In such a prosecution, both parties 
go before a jury of the country on terms more nearly equal 
than they can relatively occupy in a proceeding for the punish- 
ment of an alleged contempt." 

176 




Die liit-a uy C» O OQ I C 



JUDICIAL DOCMATISU OK "PUREDOU OF THE PHSSS." 

Shoemakrr v. South Bend Spark Arrcsttr Co., 135 Ind. 
A7^ (478). (1893.) Action for injunction to restrain "false 
and malicious claims of the title," etc. 

The Court, in affirming decision (^'anting the injunction, 
said: "It (the case of Life Assn. v. Boogher, p. 173) is not 
only out of line with the holdings of this court upon that re- 
qnesl; but it holds that the constitutional guarantee of the 
freedom of the press and of speech is a protection to one 
against equitable interference in publishing false and injurioua 
statements. In neither of these positions can we believe it 
sound." 

IOWA. 

Sme V. Blair, 60 JV. W. 486 (487) (Iowa). (1894.) 
Indictment for publicly profcvstng to treat diseases without a 
license. The Iowa Constitution provides that "every person 
may speak, write and publish his sentiments on all subjects, 
being responsible for the abuse of (hat right. No law shall 
be passed to restrain or abridge the liberty of speech or of the 
press." 

TTie Coun said: "The statute in question is a part of a 
chapter regulating 'The Practice of Pharmacy and the Sale of 
Medicine and Poisons," and is designed to guard against evil 
consequences liable to result therefrom. The prohibitive fea- 
tures of the act do not go to the right intended to be secured 
by the Constitutional provision as to speaking, writing or pub- 
lishing one's sentiments, or as to abridging or restraining the 
liberty of the press." 

KANSAS. 

The Kansas Constitution (Sec. 10 of Bill of Righu) 
says: "The hberty of the press shall be inviolate; and all 
persons may freely speak, write or publish their sentiments 
on all subjects, being responsible for the abuse of such right." 

in re PryoT, 18 Kan, 72. (76.) (1877.) Action for 
contempt for writing insulting letter to a judge, during pend- 
ency of an action. 

The court found defendant guilty, but added: "It will 
be borne in mind that the remarks we have made apply only 
while the matter which gives rise to the words or acts of the 
attorney arc pending and undetermined. Other considera- 
tions apply after the matters have finally been determined, the 
orders signed, or the judgment entered. For no judge and no 



'77 



Dnj ii;uy tiy ' 



.00^ Ic 



OBSCENE LITERATURE AND CONSTITUTIONAL LAW. 

court, high or low, is beyond the reach of public and indi- 
vidual criticism. After a case is disposed of, a court or judge 
has no power to compel the public, or any individual thereof, 
attorney, or otherwise, to consider his nihngs correct, hLi 
conduct proper, or even his integrity free from stain, or to 
punish for contempt any mere criticism or animadversion 
thereon, no matter how severe or unjust." 

In re Banks. 56 Kan. 242 (243, 244). (1895.) Habeas 
Corpus proceeding. Petitioner arrested under an act pro- 
hibiting the sale of any publication "devoted largely to the 
publication of scandals, lechery, assignation, intrigues be- 
tween men and women, and immoral conduct of person*-" 

The Court said: "Without doubt a newspaper, the most 
prominent feature of which is items detailing the immoral 
conduct of individuals, spreading out to public view an un- 
savory mass of corruption and moral degradation, is calcu- 
lated to taint the social atmosphere, and by describing in 
detail the means resorted to by immoral persons to gratify 
their propensities, tends especially to corrupt the morals of 
the young, and lead them into vicious paths and immoral acts. 
We entertain no doubt thai the legislature has power to sup- 
press this class of publications, without in any manner vio- 
lating the constitutional liberties of the press," 

KENTUCBTV. 

The constitution provides: "Printing presses shall be fre« 
to every person who undertakes to examine the proceedings 
of the General Assembly or any branch of government ; and 
no law shall ever be made to restrain the right thereof. Every 
person may freely and fully speak, write and print on any sub- 
ject, being responsible for the abuse of that liberty," 

/ei/fyy. L«.88 A'v. 603 (612. 613. 614). (1889.) Action 
for libel. 

The Court said: "By the provisions of the United States 
and the .state constitutions guaranteeing the 'freedom of the 
press,' it was simply intended to secure to the conductors of 
the press the same rights and immunities that are enjoyed by 
the public at large. The citizen has a right to speak the truth 
in reference to the acts of government, public officials or in* 
dividuals. The press is guaranteed the same right, but no 
greater right. • • • An individual may, in what he kanetily 
htlicves to be iti the interest of morals and good order, and 
the tvpf^ession of immorality and disorder, crilieise the acts 

178 



Dnjli^MCy' 



JUDICIAL DOCUATISM ON PKEEDOU OF THE PUSS. 

of otber individuals. So may the press. But in no case has 
the citizen the right to injure the riRhls of others, among the 
most sacred of which is the right to good name and fame. 
* * * The press must not be the vehicle of attack upon the 
character and reputation of a person unless the attack is 
known to be Ime. If it is not known to be true, do not pub- 
lish it. The publication can seldom, if ever, do good ; and the 
indulgence in publications of the sort not strictly true, would 
soon deprave the moral taste of society, and render it miser- 
able." 

UOVi&tAKK. 

The Constitution of Lxmisiana provides: "No law shall 
ever be passed to curtail or restrain the liberty of speech or of 
the press; any person may speak, write, and publish his senti- 
ments on all subjects, being re^onsible for the abuse of that 
liberty. 

Stolt V. Coodunn, 37 La. Ann. 713 (717)- (1885.) 
Appeal from conviction for mailing threatening letter. Judg- 
ment afhrmed. 

The Oiurt said: "It is a libel upon the noble privilege of 
free speech, guaranteed by our Constitution, to say that it 
embraces or protects such despicable practise." 

FUtpatrick V. Pub. Co.. 48 La. Ann. 1116 (1130. 1135). 
(1896.) Action for libel. The Court saidi "There is a 
marked and clear distinction to be taken between the liberty 
and the license of the press. • • • The freedom of speech 
and hbcrty of the press were designed to secure constitutional 
immunity for the expression of opinions, but that does not 
mean unrestrained license, nor does it confer the right upon 
the editor of a newspaper to print whatever he may choose, 
no matter bow false, malicious or injurious it may be, with- 
out full responsibility for the damage he may cause." 

MARYLAND. 

The Constitution provides: "That the liberty of the press 
ought to be inviolably preserved ; that every citizen of the State 
ought to be allowed to speak, write and publish his sentiments 
on all subjects, being responsible for the abuse of that privi- 
lege." 

Nfgtey V. Farrow, 60 Afd. 158 (176. 177). (188a.) 
Action for libel. 

The Court said : "It [liberty of the press) is a right which. 



179 



Dlcli^MCy ' 



OBSCENE UTEXATURB AND CONSTITUTIONAL LAW. 

from the introduction of the printing press down to the year 
1694, did not in England belong to the subject. On the con- 
trary, no one was allowed to publish any printed matter with- 
out the license and supervision of government, and it was 
against such interference on the part of the government, and is 
favor of the right of the citizen, that this provision, found its 
way into our Bill of Rights, • • • The liberty of the press 
guaranteed by the Constitution is a right belonging to every 
one, whether proprietor of a newspaper or not. to publish what- 
ever he pleases, without the license, interference or control of 
the government, being responsible alone for the abuse of 
the privilege. • * * 

"No one denies the right of the defendants to discuss and 
criticise boldly and fearlessly the official conduct of the plain- 
tiff. It is a right which in every free country belongs to th« 
dtitcn ; and the exercise of it, within lawful and proper limits, 
sffords some protection at least against official abuse and cor- 
ruption. But there is a broad distinction between fair and 
legitimate discussion in regard to the conduct of a public man, 
and the imputation of a corrupt motive, by which that conduct 
may be supposed to be governed. And if any one goes out of 
his way to asperse the personal character of a public man, and 
to ascribe to him base and corrupt motives, he must do so at 
his peril, and must either prove the truth of what he says, or 
answer in damages to the party injured." 
MASSACHUSETTS. 

The Massachusetts Bill of Rights provides that "the libcr- 
ty of the press is essential to the security of freedom in a state; 
it ought not therefore to be restrained in this Commonwealth." 

Com. V. Blanding, 20 Mass. (3 Pick). 304 (314-314). 
(1825.) Action for criminal libel. The Court said: "The 
liberty of the press, not its licentiousness, this is the con- 
struction which a just regard to the other parts of that instru* 
ment [the Constitution] and to the wisdom of those who 
formed it. requires. * * • Besides, it is well understood, 
and received as a commentary on this provision for the liberty 
of the press, that it was intended to prevent all such previous 
restraints upon publications as had been practised by other 
governments, and in early times here, to still the efforts of 
patriots towards enlightening their fellow-subjects upon their 
rights and the duties of rulers. The liberty of the press vrai 
to be unrestrained, but he who used it was to be responsibtt 



180 



Dia l«en cy ' 



lATlSU OM "FtBKDOU OP TBR PRESS. 

for its abuse ; like the riglit to keep fire arms, which does not 
protect him who uses them for annoyance or destruction." 

Com. V. Ktweland. 2,7 Mass. (aoPick.) 206 (219). (1838.) 
ProMCution for blasphemy. 

The Court said: "The obvious intent of this provision 
was to prevent the enactment of license laws, or other direct 
restraints upon publication, leaving individuals at liberty to 
print, without the previous permission of any officer of govern- 
ment, subject to responsibility for the matter printed. • • • 
The intention of the article in question was, to ensure the gen- 
eral right of publication, at the same time leaving every dti- 
«Q responsible for any offense capable of being committed by 
the use of language, as well when printed 35 when oral, or in 
manuscript. Any other construction of the article would be 
absurd and impracticable, and inconsistent with the peace 
and safety of the State, and with the existence of free govern- 
ment." 

MINNESOTA. 

The Constitution (Art. i, p. 3), provides: "The liberty 
of the press shall forever remain inviolate, and all persons may 
freely speak, write and publish their sentiments on all sub- 
jects, being responsible for the abuse of such rights." 

Slate V. Pioneer Press Co., 110 N. IV. (Minn.) 867, 
(868, S69), (1907). Indictment for publishing details of an 
official execution contrary to statute. -v 

The Court said: "Appellant. . .argues that there are no 
constitutional limitations upon the liberty of the press, unless 
the subject matter be blasphemous, c^scene, seditious or 
scandalous in its character. This is altogether too restricted 
a view. The principle is the same, whether the subject matter 
of the publication is distinctly blasphemous, seditious or scan- 
dalous, or of such character as naturally tends to excite the 
pubhc mind and thus indirectly affect the public good. If the 
constitutional provision has reference to restricting the pub- 
lication by newspapers of unwholesome matter, or the use of 
the United Siatc!i mails for the distribution of obscene litera- 
ture " • • or the publishing of Anarchistic doctrines * • * 
upon the ground that it is in the interest of public morals, then 
for the same reason the right of restriction applies to pub- 
lishing details of criminal executions. The article in question 
is moderate, and does not resort to any unusual language, or 



181 



Disteeacy ' 



.oogic 



OBSCENK LITERATURE AND CONSTITUTIONAI. LAW. 

exhibit cartoons for ihe purpose of emphasizing the horrors 
of executing the death penally, but if, in the opinion of the 
Legislature, it is detrimental to pubic morals to publish any- 
thing more tlian the mere fact that the execution ha» taken 
place, then, under the authorities and upon principle, the ap- 
pellant was not deprived of any constitutional right in being 
limited." 

MISSISSIPPI. 

The Constitution (Art. i, p. 6) provides thai "every 
citixen may freely speak, write and publish his sentiments on 
all subjects, bemg responsible for the abuse of that liberty." 

Ex Parte Hickey, 12 Mist. (4 Sm^ & A/.) 781 (782). 
(1844.) Action for contempt in denouncing the act of a 
judge. 

The Court said : "The shield which our constitution throws 
around the press has been held tip to interpose before the 
power of the courts to punish for contempts. The most dearly 
prized offspring of our national liberty is the freedom of the 
press. It is so, because it can be made its most effectual pro- 
tection at home, and because it can be employed as the apostle 
of those liberties to millions abroad. The worst enemy to 
freedom is ignorance. Instruct men in the knowledge of their 
rights, and a vindication of those rights follows as surely as 
light follows the rising sun. Yet the freedom of ihe press is 
abused to base and unworthy purposes. Such indeed, as sad 
experience teaches, is often the melancholy fate of the great- 
est blessings that a wise providence has bestowed upon \is, 
or that human skill ha» invented. The free air we breathe is 
essential to our existence, but when infected with pestilential 
matter it becomes the most terrible weapon of death. But 
who would argue, because disease may float in the atmos- 
phere, that that atmosphere should be destroyed." 

M1.SS0URI. 

The Constitution (Art 11, Sec 14) provides: "That no law 
shall be passed impairing the freedom of speech ; that every per- 
son shall be free to say. write or publish whatever he will on 
any &iibject, being responsible for all abuse of that liberty." 

Life Asstt. of America i'. Boogker, 3 Mo. App. 173 {180). 
(1876.) Action for injunction against publication of libel. 
The Court, holding that such injunction could not lie, said: 
"If it be said that the right to speak, write or print, thus se- 



1S2 



DitjiGMCy ' 



JUDICIAL DOGMATISM ON "PSHICDOM OP THE PKESS. 

cured to every one, cannot be constnjecl to mean a license to 
wantonly injure another, and that by the jumdiction claimed 
H is only suspended until it can be determined judicially 
whether the exercise of it in the particular case be allowable, 
our answer is that we have no power to suspend that right for 
a moment, or for any purpose? The sovereign power has for- 
bidden any instrumentality of the government it has instituted 
to limit or restrain this right except by the fear of the penalty, 
civil or criminal, which may wait on abuse. The General As* 
sembly can pass no law abridging the freedom of speech or of 
the press; it can only punish the licentious abuse of that free- 
dom. Courts of justice can only administer the laws of the 
State, and, of course, can do nothing by way of judicial sen- 
tence which (he General Assembly has no power to sanction. 
The matter is loo plain for detailed illustration." 

Flint z: Hutchinson Smoke Burner Co., no Mo. 492 (500, 
501). (1892.) Action for injunction 10 restrain libel of 
title. 

The Court said: "We live under a written constitution 
which declares that the right of trial by jury shall remain in- 
violate ; and the question of libel or no libel, slander or ao 
slander, is one for a jury to determine. Such was certainly 
the settled law when the various constitutions of this state 
were adopted ; and it is all-important that the right thus 
guarded ^^houtd not be di'«turbed. It goes hand in hand with 
the liberty of the press and free speech. For imbridled use of 
the tongue or pen the law furnishes a remedy. In view of 
these considerations, a court of equity has no power to rc> 
strain a slander or libel: and it cm make no diflference 
whether the words arc spoken of a person or his title to prop- 
erty." 

State V. I'an IVye. 136 Mo. 277 (234. 235). (1896.) 
Indictment for disseminating a ".scandalous newspaper." 

TTie Court said: "The liberty of the press, says Lord 
Mansfield, in King vs. Dean of St, Asaph, cited in 3 T. R. 431, 
'consists in printing without any previous license, subject, 
to the consequences of the law." Lord Ellcnborough defines it 
in Rex v. Cobbctt 29 Howells State Trials, 49. in this way: 
'The law of England is a law of liberty, and. consistently with 
this liberty, we have not what is called an impritnatur; bul if 
a man publish a paper, he is exposed to the penal consequences, 
asheisinevcry other act. if it is illegal." • • • The oonstitu* 

'83 



tin; lilt-;: uy ' 



.00^ Ic 



OBSCENE LITERATURE AND CONSTITUTIONAL LAW. 

tioiul liberty of speech and the press, as we understand it, sim- 
ply guarantees the riglit to freely utter and publish whatever 
th« citizen may desire and to be protected in so doing, provided 
always that such publications arc not blasphemous, obscene and 
'scandalous in their character, so that they become an oflfense 
against tlic public, and by their malice and falsehood injurious- 
ly affect the character, reputation or pecuniary interests of in- 
dividuals. The constitutional protection shields no one from 
responsibility for abuse of this right. To hold that it did would 
be 3 cruel libel upon tlie bill of rights itself. The laws punish- 
ing criminal libel have never been deemed an infringement o£ 
this constitutional guaranty. Equally numerous and strong are 
the decisions that obi^cene publications are without the pro- 
tection of this provision of our constitution." 

Marx & Haas Jeans Clothing Co. v. fVatton et at., i68 
Mo- '33 Ct44. '5o)' (iQOi-) Appeal from refusal of lower 
court to enjoin boycotting circular. Appeal dismissed. 

Tlie Court said: "Wherever within our borders speech is 
uttered, writing done or publication made, there stands the 
constitutional guaranty giving staunch assurance that each and 
every one of them shall be free. The Legislature cannot pass 
a law which even impairs the freedom of speech ; and as there 
are no exceptions contained in the rest of the quoted section, 
the language there used stands as an afHrmaiive prescripiton 
against any exception being thereto made, as effectually as if 
words of negation or prohibition had expressly and in terms 
been employed. • * * If these defendants are not per- 
mitted to tell the story of their wrong*, or. if you please, their 
supposed wrongs, by words of mouth or with pen or print, and 
to endeavor to persuade others to aid them by all peaceable 
means, in securing redress of such wrongs, what becomes of 
free speech, and what of personal liberty? The fact that in 
exercising that freedom they thereby do plaintiff an actionable 
injury, such fact does not go a hair towards a diminution of 
their right of free speech, etc., for the exercise of which, if re- 
sulting in such injury, the Constitution makes them expressly 
responsible. But such responsibility is utterly incompatible 
with authority in a court of equity to prevent such responsi- 
bility from occurring. 

Slate ex. inf. Crow v. Shepherd. 177 Mo. 205 (253, 257) 
(1903-) Action for contempt in censuring a judgment of the 
Supreme Court. 

184 



Dicliiency ' 



JUDICtAt. DOGMATISM OK "FRREnOU OF THE PRESS. 

The Court, adjudging defendant guilty, said : "The 
liberty of the pna tnean<^ that any one can publish anything 
he pleases, but he is liable for the abuse of that liberty. U he 
docs this by scandalizing the courts of his country, he is liable 
to be punished for contempt. If he slanders his fellow-men. 
he is liable to a criminal prosecution for libel, and to respond 
civilly, in damages for the injury he docs to the individual. 
In other words, the abuse of the privilege consists, principally, 
in iKrt tcUing the truth. * * * It is the liberty of the press 
that is guaranteed — not the HcentiottsnetJ. It is the right to 
speak the truth — not the right to hear false witness against 
your neighbor. Every citizen has a constitutional right to the 
enjoyment of his character as well as to the ownership of his 
property: and this right is >.« sacred as the liberty of the 
press." 

MONTANA. 

Tlie Constitution provides: "No law ihall be passed im- 
pairing the freedom of speech ; every person shall be free to 
speak, write or publish whatever he will upon any subject, 
being responsible fur all abuse of that liberty." 

In re Shannon, ii Afont. 67 (72). (1891.) Habeas 
corpus in contempt proceeding for criticism of courts. Writ 
granted. 

The Court said : "None of these (i.e., the legal grounds 
for commitment (or contempt], would include power to punish 
for the expre^ion of sentiments through the medium of the 
public press or otherwise regarding the practise of the Court, 
or of results or abuses alleged to flow from the past adminis- 
tration of said Court. A power to punish for such utterance, 
or to silence the voice of comment upon such matters, would 
be the discovery of an unknown quantity in jurisprudence; 
and tlie exercise of it would be a menace to a free and spirited 
people. 

"The constitutional right of freedom of speech • • « 
would be set at naught by the exercise of such a power, when- 
ever that freedom of speech happened to be directed to the 
action of public courts. There is no such exception. We 
speak now of the discussion of matters pertaining to courts, 
or the practise therein, which have no tendency to affect the 
merits or result of particular cases pending, which class of de- 
cision is entirely distinguished from publications which are 



185 



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.ooj^lc 



OBSCENE LITKRATURK AND CONSTITUTIONAL LAW. 



designed and put forth for the purpose and hare a tendencjr to 
influence the result of particubr caus." 

In re Afaeknighi, it Mont. 126 (138) ; 27 Pac. R. & 336 
(339)' ('891.) Contempt proceeding. In deciding that the 
case fell within the "constitutional sanction of the freedom 
of speech and prcs.s." the Court said: 

"What was the purpose of this constitutional guarantee? 
Was it to gram freedom to ordinary speech and publication 
which could excite the resentment of no one? If that was 
the purpose, then it would be as needful to put into the Con- 
stitution a provision that people may freely walk the streets 
quietly and peaceably. The history of the struggk for su- 
premacy of certain principles and ideas shows the purpose of 
the law. when such principles or ideas are clothed with that 
force and dignity, and inscribed upon our Constitution or 
statute. And so the history of the struggle for the establish- 
ment of the principle of free<lom of speech and press shows 
that it was not ordinary talk and publication, which was to be 
disenthralled from censorship, suppression and punishment. 
It was in a large degree a species of talk and piib!icati':^n 
which had been found distasteful to governmental powers and 
agencies." 

State V. FatUds, 17 Mont. 140 (145). (1S95.) Aetioo 
for contempt in publishing abuse of Court. 

TTie Court said: "Section 10, Article 3, of the Constitu- 
tion of the State provides that no law shall be passed impair- 
ing the freedom of speech ; every person shall be free to speak, 
write or publish whatever he will on any subject, being re- 
sponsible for all abuse of that liberty. While this section of 
the Constitution secures the largest liberty to the press, it also 
imposes responsibilities. It is a statute of liberty, not of 
'licentious scandal.' The liberty of the press is one thing; 
the abuse of that liberty is quite another." 

NEBRASKA. 

The Constitution provides: "Every person may freely 
speak, write and publish on all subjects, being responsible for 
the abuse of the liberty." 

State V. Bee Publishing Co.. 60 Neb. 282 (296). (1900.) 
Contempt proceeding for publication of articles designed to 
affect the decision of a pending case. Defendant convicted. 

The Court said : "Wc have, of course, no desire to re- 



186 




Difttiit-aiiy 



ooj^ie 



JUDICIAI. DOGMATISM ON "PUEEDOU OF THR PRBSS." 

Strain in the slighte&t degree, the freedom of the press, or to 
maintain the dignity of the Coun by inflicting penalties on 
those who may assail us with defamatory publications. Our 
decisions and all our official actions are public property, and 
the press and the people have the undoubted ri^t to comment 
on them and criticise and censure them as they see fit. Ju- 
dicial officers, like other public servants, must answer for their 
ofhcial actions, before the chancery of public opinion ; they 
must make good their claims to popular esteem by excellence 
and virtue, by faithful and efficient service and by righteous 
conduct. But while we concede to the press the right to criti- 
cise freely our decisions when made, we deny to any indi- 
vidual or to any class of men the right to subject us to any 
form of coercion with the view of affecting our judgment in 
a pending case." 

Stale V. Rosrxvater, 60 Neb. 458 (439). (1900.) Con- 
tempt proceeding for publication of articles designed to affect 
the decision of a pending case. Defendant convicted. 

The Court said: "We are told that the liberty of the press 
is involved, and that this proceeding is an arbilrar)- exercise 
of power, curtailing th.it freedom which is nece»ary for the 
conscr^'ation of public interests, and a free discussion of all 
questions of public concern. With the same spcciousness and 
plausibility of reasoning, it might as well be argued that the 
liberty of the individual is endangered who corruptly tampers 
with a jury to secure an unrighteous verdict, or attempts to 
improperly influence the decision of a court in a case then 
pending before it. The issue involved is not one of the liberty 
of an individual or of the press, but the right of every litigant 
to have his case heard free from baneful external influences 
Mughl to be exerted from selfish or other improper motives. 
It is injecting into the case a harmful and disturbing element 
to the prejudice of the rights of the litigants, and inconsistent 
with the due and orderly administration of justice." 

The Constitution provides: "Every person may freely 
q>eak, write and publish on all subjects, being re-<vponsible for 
the abuse of the liberty." 

NEW UAMPSIIIRB. 

The Constitution declares: "The liberty of the press is 
essential to the security of freedom in a State ; it ought, there- 
fore, to be inviolably preserved." 

Tcnnty't Cast. 23 N. H. 162 (166). (1851.) Action for 

187 



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OBSCENE LITERATURE AND CONSTITUTIONAL LAW. 

contempt, for circulating copies of a bill in c<)uity, contsining 
charges against parties to the action. 

The Court, finding defendant guilty, said: "Abusing 
parties concerned in causes before the court of chancery, and 
prejudicing mankind before the cause is heard, is a contempt. 
• • * Anything done either for the purpose of obstructing 
justice, or which may have that effect, may be punished as a 
contempt of the court before whom ihc proceedings arc had." 

Sluroc's Case, 48 N. H. 428 (432). {l86g.) Action for 
contempt for reflecting on conduct of Court in a pending mat- 
ter. 

The Court, in adjudging the respondent guilty, said : "It 
must not be inferred that we question the right to criticize 
and censure the conduct of courts and parties when causes 
have been finally decided. The question in this case is whether 
publications can be permitted which have a tendency to preju- 
dice the decisions of pending causes. TTie publishers of news- 
papers have the right, but no higher than others, to bring 
to public notice the conduct of courts and parties, after the 
decision has been made; and, provided the publications are 
true, and fair in spirit, there is no law, and I am sure there is 
no disposition, to restrain or punish the freest expression of 
the disapprobation that any person may entertain of what is 
done in or by the courts." 

NEW JERSEY. 

The Constitution provides: "Every person may freely 
speak, write and publish his sentiments on all subjects, being 
responsible for the abuse of that right. No law shall be 
passed to restrain or abridge the liberty of speech or of the 
press." 

In re Chceseman, 49 N. J. Law 115 (141, 142). {1886.) 
Appeal from contempt order for publication of articles re- 
flecting on Court for conviction of defendanL Appeal dis- 
missed. 

The Court said : "The importance of the 'liberty of the 
press' is urged upon us. We do not underestimate it, but. after 
all, the liberty of the press is only the liberty which every man 
has to utter his sentiments, and can be enjoyed only in sub- 
jection to that precept both of law and of morals : sic utert 
luc, ut alienum non lacdas. In a government where ordn* U 
secured, not so much by force as by the respect which citizens 



18B 



/UDICIAL DOGMATISM ON "FREeDOM Of THE PRESS," 

entertain for the law and those charged with its administra- 
tion, nothing which tends to preserve that respect from for- 
fdturc on the one hand and detraction on the other can be 
hostik to the commonwealth. 

New yosK. 

The New York Constitution (Art. I, Sec. 8) declares that 
"every dtizen may freely speak, write and publish hi.s senti- 
ments on all subjects, being rcspon-iible for the abuse of that 
right ; and no law shall be passed to restrain or abridge the 
liberty of the press." 

People V. Freer, i Caines 518. (1804.) Action for con- 
tempt for comment on pending action. 

The Court said: "Publications scandalizing the Court or 
intending unduly to influence, or overawe their deliberations, 
are contempts which they are authorized to punish by attach- 
ment : and. indeed, it is essential to their dignity of charactcF, 
their utility and independence, that they should possess and 
exercise this authority." 

People V. Croxszcdl, .1 Johns. Cos. <N. Y.). 337 (393). 
(1804.) Action for criminal libel, in publishing an article 
which accused Thomas Jefferson of hiring a pamphleteer to 
caluminate Washington and others. 

The Court, after reviewing the constitutional provisions 
for free speech and a free press, said : "I am far from intend- 
ing thai these authorities mean, by the freedom of the press, a 
press wholly be)'ond the reach of the law ; for this would be 
emphatically Pandora's Box, the source of every evil. • • • 
The founders of our governments were too wise and too just, 
ever to have intended, by the freedom of the press, a right to 
circulate falsehood as well as truth, or that the press should be 
a lawful vehicle of malicious defamation, or an engine for evit 
and dcsiRning men to cherish, for mischievous purposes, se- 
dition, irreligion and impurity. Such an abuse of the press 
would be incompatible with the existence and good order of 
civil society. The true rule of law is that the intent and tend- 
ency of the publication is, in every instance, to be the substan- 
tial inquiry on the trial, and that the truth is admissible in evi- 
dence to explain that intent, and not in every instance to 
jiotify it. I adopt in this case, as perfectly correct, the com- 
prehensive and accur.ate definition of one of the counsel at the 
bar, that the liberty of the press consists in the ri^t to pub- 



189 



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0B3C£NK LITERATUHE AKO CONSTITUTIONAL LAW. 

lish. with impunity, truth, with good motives and for justifi- 
able ends, whether it respects government, magistracy or in- 
dividuals." 

Brandrelh v. Lance, 8 Paige (N. K.), 24 (26); 34 Am. 
De(. 368. (1839.) Action for an injunction against the pub- 
lication of a satirical biography of plaintiff, alleged to be 
libelous in its nature. 

The Court, in sustaining a demurrer, said: "It is very 
evident that this Court cannot assume jurisdiction of the case 
presented by the complainant's bill, or any other case of the 
like nature, without infringing upon the liberty of the press, 
and attempting to exercise a power of prevention which, as 
the legislature has decided, cannot safely be entrusted to any 
tribunal, consistently with the principles of a free govern* 
ment." 

N. y. Juvenile Guardian Society v. RoseveU. 7 Do/y 
(iV. Y.) 18S (191). (1877.) Motion to vacate an injunction 
against the publication of alleged libelous matter. 

The Court, in granting the motion, on the authority of 
Brandreth v. Lance, 8 Paige 24, further said: "Conceding 
* * * that the matter thus published is defamatory and 
libelous, as averred, the publication cannot be restr^ned by a 
court of equity; and those injured by such publications, if 
they are libelous, must seek their remedy by a civil action, or 
by an indictment in the criminal courts; there being no au- 
thority in this court, as a court of equity, to restrain any such 
publication ; the exercise of any such jurisdiction being re- 
pugnant to the provision of the Constitution, which declares 
(Art I, p. 8) that every citizen may freely speak, write and 
publish his sentiments on all subjects, being responsible for 
the abuse of that right ; and that no law shall be passed to 
restrain or abridge the liberty of speech or of the press." 

Hart V. People, 26 Hun (N. V.) 396 (400). {l88».) 
The defendants were indicted for publishing an advertisement 
of the Louisiana lottery. Lotteries are forbidden by the Con- 
stitution of N. Y. 

The Court, in overruling a demurrer to the indictment, 
■aid : "An act of the legislature to prevent the press from dis- 
cussing ihc legality or propriety of lotteries, or from exposing 
their existence as violations of law, and catling the attention of 
the public authorities to them, or criticising the acts or n^ect 
of public officials in regard to enforcing the laws against them, 

iqct 



Dicliien cy 



iUDIClAL DOGMATISM ON "Fl^miK OF THE PRESS.' 

would be violations of constilutioRAl, rights and liberties of the 
press. But it is a very different thing to prohibit the publica- 
tion of accounts, or notices or advertisements which are de- 
signird to aid and assist in the promotion of lotteries, by in- 
forming persons desirous of engaging in such lotteries where 
Ihey are to be drawn, what are the prizes therein, what are the 
prices of tickets or shares, and where tickets may be obtained, 
or otherwise aiding and assisting the unlawful act of maintain- 
ing and carrying on such violations of the statute. 

"Since lollerics are regarded as public evils, in their na- 
ture, so injurious as to require express constitutional prohibi- 
tion, there can hardly seem to be a doubt that laws in aid and 
execution of the provisions of the Constitution cannot prop- 
erly be pronounced by the courts repugnant thereto and there- 
fore void," 

People V. Most, 75 N. V. Supp. 591 (59B, 593) ; 71 App. 
Div. i6a (1902.) .Appeal from conviction of a misdemeanor 
in "seriously endangering the public peace," by the publication 
of an article justifying violence against rulers. 

The Court, in affirming the conviction, referring to th« 
constitutional guarantee of free speech, said: "But the pro- 
Ttsion of the constitution referred to (Art. I. Sec, 8) mani- 
festly does not give to a citizen the right to murder, nor does 
it give him the right to advise the commission of that crime 
by others. What it does permit i.i liberty of action only to the 
extent that such liberty does not interfere with or deprive 
others of an equal right. In the eye of the law. each citizen 
has an equal right to live, lo act, and to enjoy the benefits of 
the laws of the state under which he lives. But no one has 
the right to use the privileges thus conferred in such a way as 
lo injure his fellow -citizens ; and one who imagines that he has 
labors under a serious misconception not only of the true mean- 
ing of the constitutional provision referred to, but of his dtity 
and obligations to his fellow-citirens and to the stale itself." 
People V. Most, 171 N. V. 423 (431. 432) ■.64N.E. 175 
(178) ; 58 L. R. A. 309. (1902,) Appeal from affirmance of 
conviction for publication of alleged seditious publications. 
(Sec 75 N. Y. .Supp. 591.) 

The Court affirmed the conviction, and in discussing the 
constitutional guarantee said: "While the right to publish is 
thus sanctioned and secured, the abuse of that right is ex- 



191 



DicteMCy' 



0B5CBN'K LITERATUBE AND CONSTITUTIONAL LAW. 



cepted from the protection of the Constitution ; and authority 
to provide for and punish sucli abuse is left to the legislature. 
The punishment of those who publish articles which tend to 
corrupt morals, induce crime or destroy society, is essential 
to the security of freedom and the stability of the state. While 
all the agencies of government, executive, legislative and ju- 
dicial, cannot abridge the freedom of the press, the legislature 
may control and the cotirls may punish the licentiousness of 
the press. "The hberty of the press," as Chancellor Kent de- 
clared in a celebrated case, "consists in the right to publish, 
with impunity, truth, with good motives, and for justifiable 
ends ; whether it respects governments, magistracy or indi- 
viduals" (People V, Crosswell, 3 Johns. Cas. 336. 393)- Mr. 
Justice Story defined the phrase lo mean "that every man shall 
have a right to speak, write and print his opinions upon any 
subject whatsoever, without any prior re&traint, so always, 
that he does not injure any other person in his rights, person, 
property or reputation; and so always, that he does not 
thereby disturb the public peace, or attempt to subvert the 
government" (Story's Commentaries on the Constitution, p. 

1874)- 

"The Constitution does not protect a publisher from the 
consequence of a crime committed by the act of publication. 
It does not shield a printed attack on private character; for 
the same section from which the above quolalion is taken ex- 
pressly sanctions criminal prosecution for libel. It does not 
permit the advcrlisemenl of lotteries, for the next section pro- 
hibits lotteries and the sale of lottery tickets. It does not per- 
mit the publication of blasphemous or obscene articles, as the 
authorities uniformly hold. It places no restraint upon the 
power of the legislature to punish the publication of matter 
which is injurious to society according to the standard of the 
common law. It docs not deprive the state of the primary 
right of self preservation. It does not sanction unbridled 
license nor authorize the publication of articles prompting the 
commission of murder or overthrow of government by force. 
All courts and commentators contrast the liberty of the press 
with its licentiousness, and condemn, as not sanctioned by the 
constitution of any state, appeals designed to destroy the 
reputation of the citizen, the peace of society or the existence- 
of the government." 



19a 




Dic'iiMcy ' 



.oogic 



JUDICIAL tXXJMATISM ON "nt£BD011 OP THE PRESS." 

Sluart V. Press Pub. Co., 83 JV. Y. Supf. 401 (406) ; 83 
Afp. Dhi. 467 (1903.) Action (or libel. 

The Court said: "Liberty of speech and of the press is 
guaranteed by the supreme law of the Innd, and will be zeal- 
ously guarded, pre«rved and enforced by the courts. The 
provisions of the Federal and State Constitutions were de- 
signed to secure rights of the people and of ihc press for the 
public good ; and they do not license the utterance of false, 
slanderous or libelous matter. Individuals arc free to talk, 
and the press is at liberty to publish, and neither may be re- 
strained by injunction ; but they arc answerable for the abuse 
of this prtvilc^, in an action for slander or libel under the 
common law. except where by that law, or by statute enacted 
in the interest of the public policy, the publication is privi- 
leged and deemed for the general good, even though it works 
3 private injury." 

OBIO. 

The Constitution (Art. I, Sec. 11) provides: "Every dticen 
may freely speak, write and publish his sentiments on all sub- 
jects, beinj; responsible for the abuse of the right ; and no law 
shall be passed to restrain or abridge the liberty of speech, or 
of the press," 

Doppv. Doll. II Weekly Law Bull. {Ohio),zzS- (1885.) 
Action for injunction against anticipated libel. 

Injunction refused as incompatible with constitutional 
liberty of the press. Nothing specially quotable. 

\fyers v. State. 21 Weekly Law Bull. {Ohio), 404- 
(1889.) Contempt proceeding for publishing reflections on 
oemn. Defendant found guilty. Nothing specially quotable. 

Jn re Press-Post. 3 Ohio N. P. 180, (1896.) Contempt 
proceedings for publishing articles about case on trial. Dis- 
missed with admonition. 

The Court said: "The abuses of the freedom of the press 
are not as dangerous as its suppression would be. The press is 
a necessary, important and valuable institution tn imparting 
information with respect to the conduct of every department 
of government — the judiciary as well as the legislative and 
executive authnritics — information to which the people are 
entitled ; but the preservation of the rights of persons who arc 
aectLsed of crime to a fair and impartial trial is just a& essential 
and important in our democratic system of government." 



»93 



Dig ii;en cy ' 



OBSCKNB UTKXATURE AND CONSTITUTIONAl. LAW. 



(1894.) 



OKLAUOHA TCRRITORV. 

Burke V. Ter. of Oklahoma, 2 Okta. 499 (522). 
Action for contempt for article offensive to judge. 

The Court said: "We decline in this case to give char- 
acter to a manufactured sentiment by joining the too often 
repeated discussion of a perverted application of our benefi- 
cent lieritage of freedom of speech and liberty of the press. 
During these occasions, when crime stalks abroad cloaked in 
the garb of liberty, and when the assassin of our highest and 
noblest institutions of civil government would audaciously bid 
the hand of justice Ixrstow reward for punishment too long dc- 
sen-ed, wc arc reminded of the historic words of Madame 
Roland, 'Ah, Liberty, bow many crimes arc committed in thy 
Darnel' and resolve that the shield of the innocent shall not be 
the weapon of the guilty." 

ORBCON. 

The Constitution provides that "no law shall be passed 
restraining the free expression of opinion, or restricting the 
right to speak, write or print freely on any subject whatever: 
but every person shall be responsible for the abuse of the 
right" 

Upton V. Hume. 24 Ore. 420 (432). (1893.) Action lor 
libel. 

The Court said : "The term 'freedom of the press,' which 
is (guaranteed under the Constitution, has led some to suppose 
that the proprietors of newspapers have a right to publish with 
impunity charges for which others would be held respon5ible. 
This is a mistake; the publisher of a newspaper possesses no 
immunity from liability on account of a libelous publication, 
not belonging to any other citizen, In either case the publisher 
is subject to the law of the land ; and, when the publication is 
a false and defamatory one, he must answer in danu^es to the 
injured party." 

PENNSYLVANIA. 

The Constitution provides: "The free communication of 
thoughts and opinions is one of the invaluable ri|;hts of man, 
and every citizen may freely speak, write and print on any 
subject, being responjible for the abuse of that liberty." There 
is much additional matter seeking specially to protect freedom 
for the discussion of public officials. The Pennsylvania de- 
cisions nearly all relate only to the effect of thcM other pro- 



«« 




jiiiwlty 



JVDiaAL DOGMATISM OH ntSEOOU OP THE PXBSS." 

visions u|)on actions for personal libel, and not to the general 
clause above quoted. 

Rcpublica v. Paumort, 3 Yeatts (Pa.), 441 (442). 
(1802.) Action for contempt for pubtisliing an article re- 
flecting on a party to a pending action. 

The Court said : "However libelous the publication com- 
plained of may be, we have no cognizance of it in this sum- 
mary mode, unless it be a contempt of the court. But we are 
ananimously of opinion that in point of law it is such a con- 
tempt • • * If the minds of the public can be prejudiced 
by such improper publications, before 3 cause is heard, justice 
cannot be administered." 

TEXAS. 

The Texas Bill of Rights provides (Sec. 8) that "every 
pertion shall be at liberty to speak, write or publish his opinions 
on any subject, being responsible for the abuse of that privilege; 
and no law shall ever be passed curtailing the liberty of spc«:h 
or of the press." 

Ex Parle Neil!. 32 Tex. Crim. 275 (276. 277). ('889.) 
Appeal from dirnial of a writ of habeas corpu*. The appeltani 
had been arrested for selling a certain paper, contrary to the 
provisions of a municipal ordinance, which adjudged said 
paper a public nuisance, and prohibited its sale. 

The Court, in pronouncing the ordinance unconstitutional 
and void, and discharging the relator, said: "The power to 
prohibit the publication of newspapers is not within the com- 
pass of legislative action in this State; and any law enacted 
for that purpose would clearly be in derogation of the Bill of 
Rights. • • ' 

"To prevent the abuse of this privilege as affecting the 
public, the legislature ha» prescribed penalties to be enforced 
at the suit of the State, leaving the matter of private injuries 
to be determined between the parties in civil proceedings. 

"We are not informed of any authority which sustains 
the doctrine that a municipal corporation is invested with the 
power to declare the sale of newspapers a nuisance. The 
power to suppress one concedes the power to suppress all. 
whether such publications are political, secular, religious, de- 
cent or indecent, obscene or otherwise. The doctrine of the 
Constitution must prevail in this State, which clothes the citi- 
zen with the liberty to speak, write or publish his optntoo on 



»95 



DlslKMCy' 



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OSSCCKE LITESATUHE AKD CONfiTITUTIONAL LAW. 

my and all subjects, subject alone to responsibility for ibr 
abuse of such privilege." 

WASBINCTON. 

The Constitution provides: ''Every person may freely 
«peak. writr and publish on all Ktibjects. being responsible for 
the abuse of that ripht." 

State V. Tugwell. 19 Wash. 238 (253. 256). (1898.) 
The Court said: The constitutional liberty of speech and 
the press and Ihe i^araniees ag3i^^^t its abridgment, • • • 
undoubtedly primarily grew out of the censorship of arltcles in- 
tended for publication by public authority. Such censorship 
was inconsistent with free institutions and with that free dis- 
cussion of all public officers and agents required (or the intelli- 
gent exercise of the right of suffrage. • * • If the article is 
catculated to embarrass or influence a court to prevent a fair 
trial between .suitors in court either by disturbing the inde- 
pendent verdict of the jury or the independent and unbiased 
conclusion of the court, it is contempt. • • • The right of 
suitors in court and persions charged with offenses to a fair 
trLa! is guaranteed by our fundamental law. • • • It is this 
right of impartial trial which i.« violated by the publication and 
submission of an article to the Court, while a cause is pending 
and yet undetermined, tending to embarrass or influence the 
court in its final conclusion: and the individual liberty of the 
citizen is gone when his personal rights are endangered or lost 
by such extraneous influence*. It is this protection of the 
rights of suitors in a judicial action, which compels the courts 
to exercise their jurisdiction of contempt. • • • In such con- 
clusion, it is not intended to intimate or suggest that any ctti- 
tea of the state has not a legal right to comment upon, criti- 
cise and freely and without restriction from any lawful au- 
thority discuss any case determined by any of the courts of this 
State after the final disposition of such case; or that any re- 
striction of fair and impartial reporting of cases pending in 
courts, unless forbidden by rule, is now imposed by our 
Laws." 

WRST VIWIINI*. 

The Constitution provides: "No law abri<Iging the free- 
dom of speech, or of the pre\s, shall be pas-sed ; bAit the legis- 
lature may by suitable penalties restrain the publication or 
sale of obscene book*, paper* or pictures, and provide for the 



196 



DlClGMCv 



.oogic 



JUDICIAL DOGMATISM ON "FKEEDOU OP THB FRESS." 

punishment of libel, and defamation of character, and for the 
recovery in civil actions, by the a^rievcd party, of suitable 
<tamages for such libel, or defamation." 

Sweeny v. Baker. 13 W. Va. 158 (182). {1878.) Action 
for libel. 

The Court said: "The terms 'freedom of the press' and 
'liberty of Ihe press' have misled some to siippoje that the pro- 
prietors of a newspaper had a right to publish that with im- 
punity, for the publication of whicli others would have been 
held responsible. But the proper signification of these phrases 
is, if so understood, misapprehended. The "liberty of the 
press' consists in a right, in the conductor of a newspaper, to 
print whatever he chooses without any previous license, but 
subject to be held responsible therefor to exactly the same 
extent, that any one else should be responsible for the publi- 
eation." 

Stale V. Frew, 24 W. Va. 416 (466, 478) : (1884.) 1 Con- 
tempt for proceeding for publication of an article charged 
with being calculated to impugn the integrity of members of 
the Court, 

Constitutional guarantee not directly discussed. 
The Court said: "In every respect of the case, the publi- 
cation is clearly contempt of this Court. Can such a publi- 
cation be palliated or excused? Far be it from us to vake 
away the liberty of the press, or in the slightest decree to 
interfere with its rights. The good of .society and of govern- 
ment demands that the largest liberty should be accorded 
the press, which is a powe'' and an engine ot great good; but 
Ihe press itself will not for a moment tolerate such licentious- 
ness as is exhibited in said editorial. The press is interested 
in the purity of thrr courts; and if it had no respect for the 
judges on the bench, it should respect the Court; for when 
the judges now on the bench shall be remembered only in the 
decision they have rendered, the Court will still remain; It 
never dies; it is the people's Court; and the press as the 
champion of Ihe people's rights is interested in preserving 
the respect due to the Court." 

Snyder, J., concurrirc, said: "It must be and is cheer^ 
fully conceded that public journals have the right to criticize 
freely the acts of all public officers — executive, legislative and 
judicial. It is a constitutional privilege that even the Lc^»- 



»97 



DisteMCy 



.UOi^lC 



OBSCKNE LITBKATUU AND CONSTITUTIONAL LAW. 

laturc cannot abridge. But such critidsm should always be 
just and with a view to promote the public good. Where the 
conduct of a public officer is wilfully corrupt, no measure ol 
condemnation can be too severe ; but when the misconduct, 
apparent or real, may be simply an honest error of judgment, 
the condemnation ought to be with-hcld or mingled with 
chanty. As i^aid by fiolt in his work on Libel, chap. 9. 'It 
is undoubtedly within the natural compass uf the liberty of 
the press, to discuss in a decent and temperate manner the 
decisions and judgments of a court of justice; to suggest 
even errors ; and. provided it is done in tne language and witb 
the views of fair criticism, to censure what is apparently 
wrong: but with this limitation, that no fal^ or dishonest 
motives be assigned to any party,' Jhese views are, in my 
judgment, sound; and these rights should be cheerfully ac- 
corded to the press in this free and enlightened country." 

WISCONSIN. 

The Constitution provides; "Every person may freely 
speak, write and publish his sentiments on all subjects, bciny 
responsible for the abuse of that right ; and no laws shall be 
passed to restrain or abridge the liberty of speech or of the 
press." 

State ex ret. Attorney Gen. v. Cir. Ct. for Eau Claire 
Co.. 97 Ww. 1 (12, 13). (1897.) Action of prohibition to 
check contempt proceedings for publication severely criticising 
the conduct on the bench of a judge, who was at the time a 
candidate for re-election. Peremptory writ granted. 

The Court said: "Important as it is that courts should 
perform their grave public duties unimpeded and unprej- 
udiced by illegitimate influences, there are other rights guar- 
anteed to all citizens by our constitution and form of govern- 
ment, either expressly or impliedly, which are fully as im- 
portant, and which must be guarded with an equally jealous 
care. These rights are the right of free speech and of free 
publication of the citizen's sentiments 'on all subjects* • • • 
also the right to freely discuss the merits and qualifications 
of a candidate for public office, being responsible for the 
abuse of such right in a proper action at law. • • • Truly, il 
must be a grievous and weighty necessity which will justify 
so arbitrary a proceeding, whereby a candidate for office 
becomes the accuser, judge and jury, and may within a few 



198 



Di5i«eacy' 



JUDICIAL DOCUATISU ON "FBEEDOU OF THE PRESS." 

hours summarily punish hi» critic with imprisonment. The 
result of such a doctrine is that all unfavorable criticism of 
a sitting ju<lge's past official action can be at once stopped 
by the judge himself, or, if not stopped, can be punished by 
immediate imprisonment. If there can be any more effectual 
way to gag the press and subvert freedom of speech, we do 
not know where to find il. ' • • Wc. however, adopted no 
part of the common law which was inconsistent with our 
constitution ; and it seems clear to us that so extreme a power 
is inconsistent with, and would materially impair, the consti- 
tutional rights of free speech and free press." 
INP8R10H U. S. COURTS. 

U. S. V. Hal!. 26 Frd. Cos. No. 15, 282. (1871.) On 
demurrer to Indictment for conspiracy to intimidate and pre- 
vent free speech. Demurrer overruled. 

The Court, in an elaborate argument, held that by the 
Fourteenth Amendment to ihe Constitution of the Unite<) 
States, the federal government assumed authority, as above 
Ilie states, to safeguard the fundamental rights of the citizen, 
including that of free speech, and was bound to interfere, 
in case of State legislation hostile to these rights, or failure 
of the Stale properly to secure them. 

U. S. V. Huggeit, 40 Fed Rep. 636 (638, 639). (1889.), 
Demurrer to indictment for mailing scaled letters containing 
obscene matter, prior to the passage of the statute including 
them. 

The Court, sustaining the demurrer, said: "But 1 am of 
the opinion that the adjudications which have affirmed the 
validity of the indictments do fall into the very latitude of 
construction which was condemned by the Supreme Court 
of the United Slates in the above cited cases; aid that upon 
the somewhat gratuitous assumption that Congress intended 
to purge the mails of all impurity whatever • * * I say upon 
a gratuitous assumption, because the history of the legislation 
nhows quite clearly, tl seems to me, that, until the recent 
act* of Congress. th:it body has never come up to the elevated 
plane of moral action suggested by the.<ie decisions, and to be 
implied from putting this restriction upon the absolute free- 
dom of that form of correspondence, but has especially re- 
fused to do that thing * • * And this reluctance to interfere 
with the freedom of private correspondence is readily ex- 

"99 



DmWt-'l! uy ' 



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OBSCENE LlTEkATUXE AMD CONSTITUTIONAL LAW. 



plainabie by the suggestion of Mr. Justice Field that Congre&s 
felt the difliicully of accomplishing its purpose to protect the 
morals of the people by a wise use of its power over the postal 
establishment, 'consistently with rights reserved to the people, 
of far greater tmponance than the transporutioii of the nnail.' 
Ex. parte Jack^in, 96 U- S. 727, 752. Free speech, and particu- 
larly free speech in private intercourse, and iJie aversion of 
our race of freemen to interfere with it, stood somewhat in 
the way of this legislation ; at least in the popular estimation. 
* * 'Postal oflicials are not supposed to examine or to 
appropriate to themselves the indulgence of reading that which 
goes into the mails in any form, but their duty is to handle 
and distribute it without doing that. They violate their duty 
when they so use any mail matter whatsoever, except for the 
purpose of such official inspection as may be authorized." 

U. S. Harmon, 45 Fed. Rep. 414 (415. 416). (1891.) 
Indictment for mailing alleged obscene publication. The 
Court said: "In view, however, of the fact that tite defendant 
places so much stress along the line of his entire defend on 
the liberty which should be accorded to the press, it may as 
well be said here as elsewhere that it is a radical misconcep- 
tion of the scope of the constitutional protection to indul^ 
the belief that a person may print and publish, ad libitum, any 
matter, whatever the substance or language, without account- 
ability to law. Liberty, in all its forms and assertions in 
this country, is regulated by law. It is not an unbridled li- 
cense. Where vituperation or licentiousness begins, the liberty 
of the press ends • • * While happily we have outlived the 
epoch of censors and licensers of tlie press, to whom the pub- 
lisher must submit his matter in advance, responsibility yet 
attaches to him when he transcends the boundary line where 
he outrages the common sense of decency, or endangers the 
public safety • * • In a government of law, the law-making 
power must be recognized as the proper authority to define 
the boundary line between license and licentiousness; and it 
must likewise remain the province of the jury — the consti- 
tutional triers of the fact — to determine when that boundary 
line has been crossed." 

Thomas v. Cinn. etc., Ry. Co., 62 Fed. Rep. 803 (822). 
{1894.) Contempt proceeding against labor leader for violat- 
ing injunction. ^ 



800 




Dnj tiit--y ty 



JtnjICIAL DOGMATISM OK FREEDOM OP TBE PRESS. I 

The Court said: "Something ha been said about ttf 
right of assembly and free speech secured b> the constitulioi. 
of Ohio. It would be strange, if that r>sht could be used 
to sustain the carrying out of such an unlawful and criminal 
conspiracy as wc have seen this to be. It never has been 
supposed to protect one from prosecution or suits for slander. 
or for any of the many malicious and tortious injuries which 
the agency of the tongue has been so often employed to in- 
flict. If the obstruction to the operation of the road by the 
receiver was unlawful and malicious, it is not less a contempt 
because the instrument which he used to effect it was his 
tongue, rather than his hand." 

U. S. SUPREME COURT. 

Respublica v. Onvald, i Dall. (U. S.) 319 (325, 326). 
^1788.) Action for contempt for publishing comment on 
pending action. 

The Court said: "However ingenuity may torture the 
expressions, there can be little doubt of the just sense of these 
sections (the constitutional guarantee of free speech and free 
press) : They give to every citizen a right of investigating the 
conduct of those who arc entrusted with the public business; 
and they effectually preclude any attempt to fetter the press 
by the institution of license • * • The true liberty of the 
press is amply secured by permitting every man to pubUsh. 
his opinions ; but it is due to the peace and dignity of society ' 
to inquire into the motives of such publications, and to distin- 
guish between those which are meant for use and reformation, 
Mid with an eye solely to the public good, and those which 
are intended merely to delude and defame. To the latter de- 
scription, it is impossible that any good government should 
afford protection and impunity. 

"If then, the liberty of the press is regulated by any just 
principle, there can be little doubt that he who attempts to 
raise a prejudice against his antagonist in the minds of those 
that must ultimately determine the dispute bewecn them ; who. 
for that purpose, represents himself as a persecuted man, and 
asserts that his judges are influenced by passion and prejudice 
— wilfully seeks to corrupt the source, and to dishonor the 
administration of justice." 

Ex parte Jackson. 96 U. S. 727 (736). {1877.) Indict- 
ment for mailing lottery circular. Habeas corpus proceeding. 

30I 



tJffi ii;«: t;v ' 



.00^ Ic 



08SCKNG LITERATURE AND CONSTITUTIONAL LAW. 

The Coun. denying the writ, said : "In excluding 
articles from the mail, the object of Congress has not been to 
interfere with the freedom of the press or with any olhci 
rights of the people ; but to refuse its facilities for the distri- 
bution of matter deemed injurious to the public morals." The 
Court, however, distinctly and forcibly held that Congress 
had no autliority to prohibit the transportation of such articles ' 
in any other way than through the mails. 

In Re Rapier, 143 V. S. 110 (134, 135). (1892.) Indict' 
mcni for mailing lottery advertisement. 

The Court said: "We cannot regard the right W operate, 
a lottery a« a fun<Iamenial right infringed by the legislation 
in question; nor are we able to s«e that Congre<>s can be 
held, in its enactment, to have abridged the freedom of the 
press. TIk circulation of newspapers is not prohibited ; bui 
the government declines itself to become an agent in the 1 
circulation of printed matter which it regards as injurious 
to the people. The freedom of communication is not abridged I 
within the intent and meaning of the constitutional provision, 
unless Congress is absolutely destitute of any discretion as to 
what shall or shall not be carried in the mails, and compelled 
arbitrarily to assist in the dissemination of matters condemned 
by its juilgment, through the governmental agencies which it 
controls. That power may be abused furnishes no ground 
for a denial of its existence, if government is to be main- 
tained at all." 

Patterson V. Colo., 205 U. S. 454 (462). (1906^) Writ of 
error in contempt proceedinR. Writ dismissed for lack of 
jurisdiction. 

The Court said: "But even if we assume that freedom 
of speech and freedom of the press were protected from 
abridgment on the part not only of the United Stales but 
also of the States, still we should be far from the conclusion 
that the plaintiff in error would have us reach. In the first 
place, the main purpose of such constitutional provisions is 
'to prevent a1I such previous restraints upon publications as 
had been practised by other governments.' and they do not 
prevent the subsefiuent punishment of such as may be deemed 
contrary to the public welfare." 



KM 



Diciiiea cy 



JUDICIAL DOGMATISM ON "REEDOM OP THB PRESS." 

COKCLUSIUN. 

Having now exhibited the judicial cerebrations upon our 
constitutional right to unabridged freedom of speech and of the 
press, I proceed to restate what is claimed to be proven by ihi- 
exhibit. No matter wheilicr the result of the opinion wa« to up- 
hold or lo abridge the freedom of the press, I think I am war- 
rented in making the following assertion as applicable to, and 
tnie of ever)' opinion published upon the subject of freedom 
or press. 

I. in no case did the court derive its standard for deteir- 
mining the constitutionality of the enactment under considera- 
tion by critical deductions made from the language of the 
constitutional phase involved. If that was too ambiguous the 
fact should have been stated, and the historical method of 
interpretation should have been pursued. 

3. In no case did the court arrive at its standard for 
determining the constitutional meaning, by any historical study 
of the pre- revolutionary controversies over freedom of utter- 
ance, to discover what issues our constitutions were intended to 
decide, or to find the clement.s of unitication in those past dc- 
ntands for such freedom, which common element of all strug- 
gles against abridgments, varied bolh as to subject-matter 
and methods of suppression, would inevitably reveal the true 
essence of that which those who were still in closer touch 
wilh these struggles than we can be. intended to protect us 
against, by the constitutional phrase in question. 

3. In-so-far as any court attempted to assign reasons for 
its conclusion?, upon either side, these ju-stifications are never 
drawn from the constitutions, but are a mere statement of 
those considerations of expediency which might properly anrl 
perhaps effectively, be addressed to a constitutional convention, 
with the view to enlightening them as to what a constitution 
ought to contain upon this subject, but certainly not very in- 
forming as to what a constitution already in existence does in 
fact mean. In other words, constitutional meanings were not 
deduced from that instrument, but read into it, and instead of 
having government according to Constitulional Laws, we have 
fovcmmenl according to the arbitrary and despotic will of a^ 
judiciary, with whom a Constitutionally guaranteed unabridgV 
able right to utter one's sentiments, means the right to utter 
only that which (he courts deem advantageous to the public 
welfare. 



V 



J" 



Disii^ea cy ' 



ioogle 



OBSCENE LITEKATUKE AND CONSTITUTIOSAl. LAW. 

4. From the foregoing propoiittionti, 1 derive this last 
one. In every case wherein our constitutional guarantees for 
an unabridged right of utterance were involved, the alleged 
judicial " interpretation" expressed only the judge's emotional 
^proval, or disapproval of the right to utter the particular 
sentiments then before bim for judgment, and the irrelevant 
reasons assigned by bim were deemed cogent only because they 
seemed to justify his prior feeling-convictions. If I am 
correct in this little psychologic study of the mental processes 
of our judges, then of course they are hardly entitled to much 
of that adoration usually accorded only to thoK possessed of 
very superior intellectual attainments. 

It remains to be seen whether we arc able to lead the 
way to a belter method of constitutional interpretation, and 
make the initial attempt toward a rational generalization, 
such as will give us a standard of judgment for the dctcrmina- 
bon of the constitutionality of every law claimed to be an 
abridgment o f our right to utter ; and thus, perhaps, ultimately 
we may lead the courts from mistaking their dogmatism, em- 
pirical inductions, personal emotions, moral scnlimeolalizing, 
judicial interpolations and constitutional amendment, or ques- 
tion-begging sophomonc declamation, for constitutional con- 
struction. 

When I read the exciting grammar-school oration from the 
Supreme Court of Oklahoma ; and when in the foregoing opin- 
ions I see it manifested again and again, that the judges of 
the highest courts of our land eviilently do not know the differ- 
ence between an analogy and a mere figure of speech, and 
because of that ignorance can mis-use the former as a basis of 
constitutional '' coni^truclion "; and when I see bow often 
"most learned judges" arc stupid enough to think they define 
the limits and prescribe the criteria of constitutional liberty by 
the use of such meaningless epithets as "license" or "liccntious- 
ncs9":and when I see "abuse" of freedom founded only upon 
the damaged emotiontt or injured vanity of jmlgrs who mis- 
conceive this mere psychologic offense — this mere constnictive 
abuse — to be very real, without ever having even thought of 
the possible difference between it and an actual abuse which can 
only be predicated upon an ascertained, actual, real and material 
injury; and when I contemplate the probable fact that many 
readers of this paragraph will not know, even now, just what 
I mean by these criticisms, because I cannot take space to an- 



ao4 



Dm iJisn cy 



JUDICIAL DOGMATISM ON FRESWU OF THE PRESS. 

alyze each opinion and specifically point out its shortcomings; 
I say when I contemplate all these things, it makes me inex- 
pressibly sad, because then 1 realize how slender a thread of 
intelligence sustains our liberties, and that the battle for real 
freedom is only jusi begun, because a generally accepted, in- 
telligent conception of liberty, such as must precede its realiza- 
tion, for a long, long time yet will be impossible. Will the 
Federal Supreme Court exercise its great power to hasten the 
day of our liberation? Ah! there is a flattering hope, which 
may not disappoint. 

The doubt which the courts have cast upon the meaning 
of "Freedom of Speech and of the Pre«" by declaring limits* 
tions upon, or exceptions to that freedom, makes it imperative 
that the doubt be resolved by an appeal to the historical inter- 
pretation of that constitutional phrase. Such an investigation 
win disclose to us whether or not our courts are warranted in 
blindly following, as they have done more or less directly, the 
declarations of Blackstonc. Ellenborough, Mansfield or even 
Erskine, as to whst is meant by freedom of the press, consti- 
tutionally guaranteed as an unabridgable right, and not a 
mere liberty by permission. 



».S 



Dig li^en cy ' 



ioogle 



CHAPTER XI. 

THE HISTORICAL INTERPRETATION OF 

"FREEDOM OF SPEECH AND OF 

THE PRESS." 



The purpose is to re-intcrprct our con^itutional guarantee 
for an unabridged freedom of speech and of the press, by the 
historical or scientific method, and with special reference to the 
specific issue raised by the judicial dogmatism thereon and my 
dilTereiit conception of how that phrase ought to be interpreted. 
To clarify the issues, I restate these contradictory propositions, 
90 the reader may have them constantly in mind during the 
following discussion. 

My contention as to the meaning of a constitutionally guar- 
anteed right to unabridged freedom of speech and of the press, 
Is this: No matter upon what subject, nor how injurious to 
the public welfare any particular idea thereon may be deemed 
to be, the constitutional right is violated whenever anyone i» 
not i^ally free to express any such or other sentiments, either; 

First, because prevented in advance by a l^ally created 
censorship, or monopoly in the ase of the press, or by other 
governmental power, or; 

Second, because in the effort to secure publicity for any 
idea whatever, the equality of natural opportunity is destroyed, 
in that sonic, by subsequent I^al penalties or other legal limi- 
tations, are deterred, or are impeded, in the use of the ordinary 
and natural methods of reaching the public, on the same legal 
terms, as these are permitted to any person for the presentatioQ 
of any other idea, or ; 

Third, because the natural opportunity of all is abridged by 
some statutory impediment, siidi as taxes upon the dissemina* 
tion of information placed upon all intellectual intercourse, as 
such, or on all of a particular class, or : 

Fourth, because inequalities in State-created, or State- 
supported, opportunity' is le^lized. so that. In the effort to 
secure publicity for any sentiments and merely because of their 

206 




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INTEKrlu:TAT10N OP "FII£EDOU OV ^TEKCII AND OF TBE Fftb&S. 

nature, literary style, or supposed evil tendency, any one is 
discriminated gainst, either by law, or for any cause by any 
arbitrary exercise of official discretion, in the use of sucb SUtC- 
cmled ur State-supported facilities, or; 

Fifth, because after expressing one's sentiments one is by 
law liable to punishment, merely for having uttered disap- 
proved thoughts ; 

Provided always, that the prohibition, abridgment, discrim- 
tnation, Nubsequetit punishment, or other legal disability or 
disadvantage, is arbitrarily inflicted, or attaches merely because 
of the character, literary s^le, or supposed bad tendency of 
the offending sentiments, and their spread among sane adults, 
willing (o read, ^ee, or hear them, or is the reaull of arbitrary 
official discretion, and that they do not attach because of any 
inseparably accompanying, or other resultant penalized invasive 
act. constituting an actually ascertained, re:<u!tant, material 
injury, (as distinguished from mere speculative or constructive 
harm) inflicted, or by overt act attempted to be inflicted, before 
arrest and punishment, and in cither case actually resulting 
from the particular utterance involved. 

But, if the injury is to reputation, or loss of public esteem, 
and among the consequences is material injury to the libeled 
person, even then, truth and justifiable motive must always be 
recognized by law as a complete defense; and where the 
resultant injury consists in violence to person or property, 
aetuaUy attempted or achieved, then the inUnt to achieve such 
results must be of the essence of the crime, and punishment 
of a utfre speaker must be only that of an accessory before the 
fact, if our constitutional guaranty is to be made effective. 
I do not discuss civil remedies. 

TUB JUDICIAL INTUtPReTATION. 

The contrary conclusion of the Courts is well summarized 
by a dictum, perhaps hastily uttered, of the Federal Supreme 
Court. These are iu words : "The main purpose of such con- 
stitutional provisions is to prevent all such preifious restraints 
as had been practised by other governments, and ihey do not 
prevent the subsequent punishment of such as may be deemed 
contrary to the public welfare""!' 

In England the licensing acts, which put a previous restraint 
upon publications, existed for only a short time, and finally 
expired in .^, D. 16W.* It seems, therefore, according to the 

■Paltmon v. Colo.. IDS U. S. *i*. («t2), 

•Smenf' "SourfM of lb( CDntnioiion ef ibt U. &." |t. 3>l) rilwnon^ 
**LA»Ttr of Vttm and SliCKb." SO *nd }1. 

307 



Diaiiit'tiuv' 



OBSCBNK UTQtATURE AND CONSTITUTIONAL LAW. 

definition of our American Courts, that perfect unabridged 
liberty of speech and press obtained in England after the year 
16W, because no licenser prohibited before utterance, and there 
prevailed a system of subsequent punishment for only such 
opinions as were deemed contrary to the public welfare, and 
for nearly a century preceding our Revolution the agitation 
for larger freedom of speech and of the press was a vain 
demand for something already enjoyed by the agitators, but 
not known by them to exist. 

However ridiculous such judictal implications will appear 
to some, the official eminence of the many judges who have 
sanctioned that doctrine, and especially the tremendous con- 
sequence of it to our liberties, precludes levity. We will there- 
fore proceed in all seriousness to demonstrate the error of our 
courts by a historical study and a scientific interpretation of 
the facts. Thus it will be made to appear that unabridged 
liberty of discussion did not obtain in England, or its American 
Colonies, from 1694 until the American Revolution, and that 
our Constitutions were designed to change the prevailing 
system of an abridged and abrtdgable liberty of disciunon by 
permission, to an unabridged and tinahridgahlf liberty of dif 
tnssion as a canslitutionally guaranteed, natural right, not tn 
be ignored, as in England, or Russia, where the claim of such 
freedom was and is dented, on the pica of furthering the publk 
welfare. 

THE EARLV THEORY AS TO FRRR SPttECH, 
In England, "before public meetings were resorted to as 
an ordinary exercise of self-government, great looseness pre- 
vailed in the law. the theory apparently being that free-speech 
was a species of gift by the Sovereign to the jieoplc."* To 
have the power to control what others may hear or see, is of 
course to that extent a limitation upon their right to acquire 
and have opinions — thus abridging the liberty of conscience — 
since one cannot well acquire opinions the materials of which 
are withheld from him. Since the right to have a personal 
judgment and the right to express it existed only as a gift 
from kings and priests, when the issuing of pamphlets became 
an extended form of speech nothing was more natural than 
that at firfst "printing was treated like the making of salamonJae 
and apprentices were cautioned not to lay open the principlet 
to the unfaithful "* 

■PilliiMii]** "LlbcrlT af Prnt, p. 19. 

•Pilttnen't "[.ibrnr of Pnu." n 4), eilins, B«A«t i. Dnbon, IT MrL 
HtaUMB. 

908 



Diti"-MCy V.^»( 



INTERPReTATION OF "FKEeDOM OF SPEECU AND OF TUK FftCSS." 

The reasons underlying such conclusions arc fully appreci- 
ated only by keeping in mind the English conception of that 
period as to the nature of the Sutc. The features especially 
to be remembered are the union of Church and State, and the 
King's rule of divine right, as vice-gerent for the Almighty, 
exercising the divinity's political omnipotence, and thus being 
the giver of all good, including the grant of commcrcia! oppor- 
tunity and monopoly, and being incapable of doing any wrong. 
It necessarily followed from such premises that the Suie* 
religion be declared the fundamental and controlling part of 
the laws of England, so that any statute made against "any 
point of the Christian religion or what they thought was the 
Christian religion, was void."* 

From such considerations there grew op naturally laws 
against blasphemous and seditious utterances. Th.it these 
found the tap-root of their justification in the union of Church 
and State is evident from such judicial unreason as the follow- 
ing!" "To say that religion is a cheat, is to dissolve all those 
obligations whereby civil societies are preserved, and Christian- 
ity being part and parcel of the laws of England, therefore 
to reproach the Christian religion is to speak in subversion of 
the law."* This doctrine no longer obtains in England.' 

Since man can impose no rightful limitations on the exer- 
cise of power by those who rule by divine right, it follows 
that under such a State all liberty is necessarily only liberty 
by permis:^ion, never liberty as an admitted natural right, and 
necessarily to decry religion is to inculcate treason against 
those whose right to rule is founded in that religion, and to 
attack a government conducted by divine right is in its turn 
irreligious and blasphemous. So, then, admitting the premises 
of tlieir Church-State, the Star Chamber was quite logical 
when in de famosis Ubctlis the court assumed "that words 
against the government amount to sedition ; and that words 
against an archbishop arc words against the government.'** 

Necessarily, under such a State, those who opposed the 
existing restrictions upon speech and press were promoting 
breligion, and therefore treason against both earthly and 
heavenly governments. In that controversy, the demand for 
unabridged, or even larger freedom of heretical religious utter- 
ance, necessarily included a demand for the right to advocate 
even treason, and of course logically must include all the lesser 

p. 6T. dUni 10 SL Tr. 171. 
«ny «iirl__BIi»iihaiJi>ui IJbel," bj Slf Flo J( 



'P»ltet»on'> "Librriy of Piew ind Spc«b." 

•I(t(. V Tirlor. Vfnttii. 19.\ 

■itJllI* Knitw, Mir., 1884. 
• Uence on LIbfl. p. 2S9. 



w>9 



DmiJIui! uy ' 



.OOi^lC 



OBSCKNB UTBRATURE AND CONSTITUTIONAL LAW. 

aimes. Although in America wc boast of having outgrown at 
least the avowed union of Church and State, we still retain 
that union in fact, by virtue of many repressive laws which 
have no other foundation than the precedents of a Church- 
State, and the moral sentimentalizing associated with, or 
anchored in, religion. In studying the English precedents we 
must always bear in mind the before-mentioned essential differ- 
ence in our theories of government and tlie resultant difTerence 
between liberty merely by permission and liberty as a constitU' 
tionally guaranteed natural right. 

ON CONSTITimONAL DESIGN. 

Our constitutional guarantees upon this subject are both 
tueless and meaningless except on tlie assumption that they 
were designed to repudiate the old tlieory that freedom of 
utterance is liberty by permission or grant, and were intended 
tD establish intellectual liberty as a matter of constitutionally 
guaranteed unabridgable natural right. 

If it was not the design to change the English system of 
liberty by permission to one of liberty as a right, then there was 
no reason for any constitutional provision upon the subject. 
If the only purpose was tu preclude the creation of an official 
censor, the easiest way would have been to have had the Con- 
stitution say, "No censor sliall ever be appointed," or, "No 
previous restraints shall be put upon speech or press." Thus 
there would be no restriction upon other modes of abridging 
freedom of utterance. If the intention had been that a power 
should rnnain which, by subsequent punishmctn. would sup- 
press those discussions and ideas which were deemed contrary 
to tlie public welfare, then, again, there was no need for any 
constitutional provision upon the subject, because no other 
opinions than such as had been deemed contrary to the public 
welfare ever had been suppressed anywhere. If it is possible 
to assiune that the purpose of amending our Federal Constitu- 
tion was to preclude Congress from punishing men for publish- 
ing ideas, believed by it to be conducive to u-ctfare, then we 
might still expect that the most appropriate language would 
have been used. Then our Constitution might have read thus: 
"Congress shall make no law abridging freedom of speech or 
of the press, except in the interest of the public welfare." But 
the insistence here is that stich exception cannot properly be 
interpolated into our Constitution by judicial action. 

I utterly repudiate the dogmatic paradox of our courts. 

aio 



DnJl'It-'CUy' 



INTEXPRETATtON OF "FRKEDOH OF SFRRCH AND OF THE PRESS." 

which, while claiming to construe our Constitutions, declare 
that the words, the legislature "shall make no lata abridging," 
etc., mean that, in the alleged interest of the public welfare, it 
may nwcf any abridging laws it sees fit, if thereby no restraint 
is imposed prior to publication. 

ft does seem to me that these few iiiuggestions, together 
with a bit of critical thought on the words themselves, as used 
in our Constitutions, should be all that is necessary in justifica- 
tion of my contention. However, the abundance of judicial 
dogmatism to the contrary, and the general acquiescence there- 
in, persuade mc that a more elaborate study of the historical 
factors is quite indispensable for most minds, even of the sort 
that have capacity for logical thinking upon this subject 

THK MKTUOD OUTLINED. 

In the scientific aspect, our social knd political institutions, 
like all other natural phenomena, are but special manifestations 
of the all-pcrvadiiig law of evolution. With entailed experi- 
ences, we change our conceptions of what is required by the 
natural law of our social relations, and accordingly we change 
our verbal Matements of law. It follows that the laws of a 
State always $«em to be approaching, but never attain, perfeo- 
tion. This seeming corresponds to the reality so long as the 
dominant conceptiim of the law is nearing the truly scientific. By 
a scientific conception of the law. 1 mean one wherein the em- 
pirical generalizations have all been included in one rational 
generalization, which is the low upon ihc subject, because it is 
derived wholly from tlie nature of things ; and, in every state 
of facts to which it can be applied, it conclusively determines 
the ho7if and the why certain judgments must be so, and thus, 
the result alway.s being derived exclusively by deductions from 
the ultimate rational generalisation, which thus furnishes the 
only standard of judgment determining the decision in every 
particular case, that lerw must always be conformed to, irre- 
spective of the direct estimate of the beneficence of its results 
in any particular instance?* 

I venture the assertion that no one who has underetandingly 
read the foregoing statement of the meaning of "Law," and 
who has also read the judicial opinions as to the meaning of 
unabridged freedom of speech and of the press, will claim that 
any American court has ever attempted to declare Ihe taw of 
our Constitutions as to the freedom of utterance, because Htf 

•Sec ■. *t. Am. Urn Ktrttrn. p. J60. 

211 



Dicli^ency ' 



OBSCENE LITERATURE ASD CONSTITUTION At, LAW. 




court lias ever altempted. even in a crude way, to furnish as 
with any comprehensive statement of the criteria for judging 
the constitutionality of enactments relating to speech or press. 

In England, where there is no constitntional limitation 
upon the power of Parliament to abridge freedom of utterance, 
it was said, after the passage of the Fox libel act, that 
"Freedom of discussion is little else than the right to write 
or say anything which a jury, consisting of twelve shopkeepers, 
think it expedient should be said or written."" That is freedom 
as a matter of expediency and by permission, the only kind 
o( freedom of speech and press that has ever obtained in Eng- 
land or R\u.sia. How useless tlien is our Constitution if. as 
the Courts quite uniformly assert, unabridged and unabndg- 
able freedom of discussion is the right to say whatever a legis- 
lature of mediocre attainments may think it expedient to permit 
to be said? If our con>titnti<in»1 guarantees declare and de- 
termine rights, then these cannot be destroyed by the arbitrary 
decree of the legislature, even though done in the alleged 
interest of the public welfare. If the Constitution is a Icao 
of right, then its declarations are always to be obeyed, even 
though the legislature and court concur in the belief that in a 
particular case the exercise of a constitutional right is against 
the public welfare. Neither can such belief invest them with 
the authority to amend the Constitution so as to make it read, 
"Congress shall make no law abridging freedom of speech or 
of the press except as to those ideas which it deems contrary 
to the public welfare." If we are to preclude such dogmatic 
judicial amendments of our Constitutions, we must develop 
in the judicial mind, by the scientific method, a conception of 
constitutional law in accord with the conception of the legal 
scientist. 

The materials for a scientific interpretation of the Consti- 
tution arc antecedent historical controversies, whose issues tiie 
Constitution was intended to decide. The method must be to 
trace the evolution of the idea of unabridged freedom of dis- 
cussion, from its inception as a mere personal protest and 
mere wish of the individual to be personally free from a partic- 
nlar interference, through unnumbered empirical inductions to 
the impersonal recognition of a general principle underlying 
all such protests and demands, and determining the rightfulness 
of them. To achieve this we must study the historical contro- 
versies and the primitive crude demands for a lesser abridge 
■■Dictr. "Th« L«w ot lb* ConMtlutloa.' p. 214. 
312 



DicteenoyV,.!* 



IHTKll-ItirrATIOS OF "FRKEDOM OF SI-KECII AND Of TOR MBSS." 

moit of intellectual liberty, that we may discover the common 
elements in all these varying demands, and when we have thus 
discovered the elements of unification common to all these 
struggles for a lesser abridgment of intellectual liberty, have 
studied the various historical means of abridgment from which 
arose the controversies which were settled by our Constitutbns, 
and have generalized the inhibition against all similar recur- 
rences, we may achieve a scientific conception of what is meant 
by an abridgment of freedom of speech. This will be a rational 
generalization giving us the criteria by which to judge whether 
or not a particular enactment is, or is not, a breach of the 
oonstitutional right of an unabridged freedom of utterance. 

TUB DISPUTANTS Ct^SSIFlED. 
I cannot resist the feeling that it is an awful reflection 
upon the general and the judicial "intelligence" tliat any argu- 
ment should be deemed necessary to show the absurdity of the 
official "construction" of our Constitutions. Manifestly, it is 
urgently ncce>sary, and it is to this end that wc are to make a 
more preci-se analysis of the historical controversy which, in 
America, culminated in the adoption of our constitutional 
guarantees for unabridged freedom of speedi and of the press. 
In making our analysis of tlie historical contentions, we must 
keep in mind at least three main classes of disputants. 

The first and most popular class consisted of those emi- 
nently respectable and official persons who asserted, not only 
the existence of a proper governmental authority to abridge 
in ever)' manner the intellectual liberty of the citizen, but who 
also defended every existing method by which the power was 
being exercised. This class was the only one fortified by official 
justifications and judicial definitions of the pre-revoIutionaf7 
period. 

To the second class belonged those conservative reformers 
who did not question the existence of a power to control 
legally the intclleclual food-supply of the populace, but who 
did question some particular manner of its exercise. These 
usually believed in a larger liberty of speech and pre*s, but did 
not demand that it be wholly unabridged, and usually their 
arguments were directed only to the inexpediency of sonne 
particular abridgment and not toward the defense of liberty 
as an unabridgable natural right- Among these could be found 
persons who demanded larger liberty for tlje promotion of 

"3 



DitilJ:t--t!t;v' 



.OOi^lC 



OUSCENe UTKRATURE ANT) CONSTITUTIONAL LAW. 

Iheif own heresies, but justified the punishment of other her- 
etics : there were those who demanded liberty for the discussion 
of religion, bill hastened to out-Herod Herod in their justifica- 
tion of tlie punishment of llie psychologic crime of verbal 
treason. Others, like Erskine, demanded a larger liberty for 
the criticism of government, but hastened to give assurance of 
their entire ortK^doxy by joining in the clamor for the punish- 
ment of religious heretics. Should we mistake any of these 
disputants as the defenders of unabridged freedom of speech 
Hid press, and adopt their definitions of liberty, as a meatu 
of constitutional construc^n, we should of course be led 
far astray and reduce our constitutional right to unabridged 
freedom to a Umited liberty by permission. 

The third class of controversialists was composed of those 
few who denied the existence of any rightful authorit)" for the 
punishment of any mere psycliologic crimes, and who therefore 
demanded the establishment and maintenance of unabridged 
liberty of utterance. It was the contention of these persons 
uhich was adopted into our Constitutions, and it is their state- 
ment of the meaning of "freedom of speech" which should 
be made the basis for constitutional construction, and not the 
judicial precedents of the Star Chamber, expressing the Eng- 
lish practise from the viewpoint of the Church-State, which 
viewpoint was repudiated by our American States and which 
precedents were overruled by our American Constitutions. 
Unfortunately, these precedents arc still often followed by our 
American Courts, whose judges arc supposed to be the con- 
servators, but often act as the destroyers, of our liberty, 
especially when unpopular and disapproved utterances are in- 
volved. 

The varying conceptions of the limits of freedom of utter- 
ance, as advocated by these classes of controversialists, will 
now be exemplified by illustrative quotations, that we may 
show what was meant by an unabridged liberty of utterance, by 
those whose views were incorporated in our Constitutions. 




LICENSING THE PXINTEH. 

The press was introduced into England by Henry VII. 
From this fact, tc^ether with the prevailing opinion that the 
whole matter of freedom of speech was one of permission, or 
pift from the Sovereign, nothing was more natural than that 
Edward the VI. should by patent appoint a printer, who was 

214 



Dic'i^eaCy 




INTERPRETATION OF "FRBRDOM OP SPEKCIt AND OF TUK PRESS." 

to print and ,«elt all Latin, Greek, and Hebrew books, as wdQ 
as all otliers that might be commanded, and penalties were 
denounced for infrinpins; his monopoly. Subsequently, the 
number of licensed printers was enlar;ged, but for a consider- 
able lime it was limited." In this form of license, the letter 
of the law made no discrimination against a book according to 
the sentiments expressed. The license seems rather to have 
been a business monopoly given to some court favorite, and a 
matter of confidence in the printer, as one having the discretion 
to publish nothing inimical to the grantors of his special 
privilege. Of course, this public printer did not publish (or 
future reference any of the arguments against his monopoly. 
Could we now look back lo anatyr.e tlie opposition to this first 
form of licensing, we would seek for two possible explana- 
tions of it. According to one, freedom of the press might 
mean only the commercial freedom to use the press as a tool 
of trade, in commercial competition with the Crown-mon- 
opolists, and 3 modern judge, adopting that conception as a 
basis for constitutional construction, might uphold a law cre- 
ating a censorship over only the character of the printed 
matter, and not directly and immediately affecting the equality 
of commercial opportunity in the use of the printing press as 
an instrument of commerce. According to this first point of 
view, the abolition of this monopoly was the chief, or only. 
end in view, and this object would not be in the least interfcroil 
with by a new form of censorship directed against particular 
psychologic tendencies of opinions, which would leave in- 
tellectual liberty just as much abridged as before. 

The other view would be that the opposition to licensing 
of the printer was based principally upon the demand for a 
larger intellectual liberty, by equalizing the opportunity of all 
for using the press as an extended form of speech. In this 
second view, the mere abolition of the license for printers' 
monopoly is not an end in itself, but a mere means to the end 
of increasing intellectual liberty and opportunity, a viewpoint 
quite constantly ignored in our judicial utterances upon this 
subject. It is untbinkably paradoxical that the few friends 
of freedom of speech and of the press who existed at that 
time should have had no interest in the enlargement of in- 
tellectual liberty, and were interested only in the enlarged 
opportunity for the use of the press as a tool of trade. 

Of course this view, that enlargement of intellectual op- 
"Pilowm'i "LairTiy ol pre**," p. **. 

3'5 



DlCli^MCy ' 



OBSCENE IJTE«ATUIIF, AND CONSTmmOSAL LAW. 




portuoity was the chief end sought, is confirmed by the related 
Gontrovcrsiat literature of approximately that time. As I 
write this, 1 have open before me a volume in which are 
reprinted tlie tracts on "Liberty of Conscience" which had been 
published prior to 1661. These express "the first articulations 
of infant liberty." The arguments are in the main very crude, 
as argiuncnts for liberty. They may be clearly divided into a 
few general classes : First, "we dissenters arc right, therefore 
ought to be tolerated." Second, "the Bible teaches toleration, 
therefore we sliould be tolerated." Third, "it is not in the 
power of man to believe as he wills, but he believes as he must, 
and he therefore should not be punished for expressing con- 
victions he cannot escape." This last is a good argument 
against the injustice of punishing "dangerous" opinions, even 
yet Amid much crude thinking, tliere are some few very 
clear perceptions, excluding all mere psychological ct imes from 
the legitimate province of govemmenL To this end, Luther 
was quoted and his thought is several times restated by di(- 
ferent authors. Luther's word* are these: "The laws of civi! 
government extend no further than over the body and goods, 
and that which is external: For over the Soul, [mind] God 
will not suffer man to rule." Such were the contentions made 
in Iwhalf of liberty of speech, or. "the liberty of prophesying," 
as it was then often called. One would look in vain through 
this volume of early tracts for any suggestion that the larger 
liberty contended for, or an unabridged freedom of discussion, 
consisted only in the absence of a prior censorship. I do not 
recall even a single mention of a previous censorship as the 
essence of tlie evil, nor mere commercial opportunity to use 
the press as a tool of trade, as an end to be achieved. Always 
the demand was for, and. indeed, the arguments were all in 
furtherance of, a Lirger intellectual liberty, and sometimes 
demanded an unabridged liberty of utterance, by excluding all 
psychological offenses from the jurisdiction of the criminal 
law. 

These early tracts, so far as they go, are a vindication of 
the contention, stated at the head of this essay, as that relates 
to the period prior to 1661. It is utterly absurd for our courts 
to intimate, as they do, that the real friends of unabridged 
intellectual opportunity were ever concerned only with the 
mfre lime or manner (rather than the substanc€) of the 
abridgment of liberty. The friends of freedom never sought 



ai6 




Dm'Jiuiiiiy 



IMTKKPKKTATION OF "KKKEIlOil OF SPEECH AKD Of TUB FRBSS." 



the abolition of previous restraint in favor of subsequent 
punishment, as an end in itEcIf, but were seeking to enlarge 
intellectual uppurtunity as against abridgment either by prior 
restraint or subsequent punishment. 

No doubt it was in this early protest against a licensed 
-printer that the phrase "Freedom of the Press" came into use. 
Cor here only does it have a literal signification. When the 
press was made free, as an instrument of trade, the shifty 
tyrant saw to it that no enlargement of intellectual opportunity 
resulted. 

USURPATION BY THE "STAR CUAHUeR." 

Prior to 1637 there seems to have been no criminal penalties 
inflicted by the English secular courts, for mere psychological 
offenses, such as the expression of unpopular opinions. "The 
Common Law took cogniiance of no injuries but such as 
affected persons or property."" In 1637 the Star Chamber, 
which never hesitated to assume the most preposterous powers, 
usurped the legislative function of penalizing libel, by its 
decree regulating tlie press." This Judicial lawlessness, in 
usurping the power to punish mere psychologic crimes under 
tx post facto criteria of guilt, of course provoked criticism 
from those who loved liberty and knew something of its 
nature, and no doubt it also secured for "the watchtowcr of the 
King" the hearty approval of all tyrants, for the protection 
of whose reputation and prerogatives this abridgment of free- 
dom of utterance was inaugurated. This usurped censorship 
and the accompanying ex pott facto penalization of mere 
Osvchologic crimes, were among the last and most hideous of 
che acts of this infamous "Judicial" body, for the Star Cham- 
ber was abolished in 1640. No doubt the hostility excited by 
its outrageous creation and enforcement of l3W» against mere 
verbal crimes contributed much towards the downfall, but 
Qraony did not die with the institution that invented this 
special means to its end. The co-tyrants of the Star Chamber 
Court and their successors, prompted by the same inordinate 
lust for power and preferring to be relieved of the occasion for 
defending their official conduct, have continued, with slight 
modifications and very brief cessations, to this very day to act 
upon the precedents of the abhorred Star Chamber. Parlia- 
mentary enactment along similar lines soon took the place of 
Star Oiamber decrees, and vagueness in the legislative defini- 

"W»rce on I-ibcl. p. )J). 
■PiUrrion oo^ 



OapL «. (1M4); "Tbc 
(Ml. 



I.iIk'cIt of Vrn* and Spnch." *l: Uraet. Tav •( LlbcL' 
c FiMdon »f SpcKh ud Wrldm." pp. 4>. 49. ». (Loi2, 

217 



DitiiJit-'Utiv' 



.OOi^lC 



• IHJU-KNK MTIULSTUIIK AND CONSTITUTIONAL LAW. 

tton of cnininat libel left quite unimpaired the power for an 
*jr post facto creation of the criteria of guilt. So it oomes 
to pass that, white mainiaining some of the oittward <^eemings 
of law, tlic fuiidanienlal evils of judicial de.->(K)li:>m >till exi.it, 
even in those countries whose inhabitants arc most vociferous 
in their stupid boast over a purely imaginary liberty. How- 
ever, let it be said, that the savagery of the penalties has been 
a little abated, even though on the whole intellectual liberty 
has received no substantial enlargement. What has been 
gained as tu some subjects has been tost as to others. Some 
comparison as to this would be interesting but is not within the 
scope of this es.say. 

LICENSING THE BOOK. 

The licensing of one printer was succeeded by the licensing 
of many and later by the abolition of this system in its entire^, 
allowing all alike to use the printing press as an instrument of 
commerce, but maintaining inequalities as to its use in the 
distribution of ideas. Here I have reference to those various 
licensing acts, expiring in 1694, which succeeded to the Star 
Chamber decrees, and by which a censor authorized particular 
books to be printed, and all publications not so authorized 
were penalized. It was against this censorship tlial Milton 
directed his immortal essay, "Areopagitica." 

Here, again, we must seek an answer to the same old 
question. Is it true, as our courts generally assert, that Milton 
and others who opposed the^^e licensing acts were concerned 
only with the manner and not with the substance of this abridg- 
ment of freedom of the press? Is it true, as our courts usually 
imply, that the opponents of these licensing acts demanded 
only the abolition of the cen.wr and previous reslramt, and 
were quite witling to admit a power to punish subsequent to 
publication all tlinse opinions which formerly had been denied 
the necessary license for getting into print? In Milton's time, 
one might print unpopular opinions, which the licenser had 
disapproved, and be punished if caught. This the Supreme 
Court of the United States says is an abrid/'ment of freedom 
of the press. However, if there is no previous censorship, 
and although you receive the same penalty, merely for publish* 
ing the same book, because a legiiilature or jury deem it 
contrary to the public welfare, then unabridged liberty of the 
press is thereby preserved, for "the greatest judicial tribunal 



DiciGsncy 



IHTKSPReTATION OF "FREEDOM OF SPKKCII AND OT THE PRESS." 

on earth" has said that a constitutionally guaranteed natural 
right to unabridged freedom of press calls for the cessation of 
"all Mich previous restraints as had been practised by other 
governments, and (but] dofs not prevent the subsequent pun- 
ishment of such [publications] as may be deemed against the 
fublie welfare." 

tn other words, our courts declare that our constitutional 
right to unabridged freedom of utterance deals only with the 
manner and time of the abridgment, or the tribunal which 
inflicts it, and has nothing to do with unabridged intellectual 
opportunity to utter, to hear, and to read. Be it remembered, 
however, that no such distinction in favor of any ex post facto 
censorship can be deduced from the very words of our Con- 
stitutions, nor from the historical controversy culminating in 
their adoption, and, therefore, these exceptions to unabridged 
freedom arc a matter of judicial creation — that Ls, of judicial 
const it utional amendment. 

IN DEFENSE OF THK CeNSOKSHtP. 
Then, as now. the advocates for the suppression of un- 
popular opinions refused to sec that to admit the existence of 
the power to suppress any opinion, is, in the long run, more 
destructive to human well-being than the ideas against which 
they would have the power exercised. Then, as now, the 
alleged immediate public welfare was the justification of every 
form of censorship, and some dangerous "tendency," only 
speculatively ascertained and usually so in a feverishly appre- 
hensive iinagination, was always the test of guilt. "The most 
tyrannical and the most absolute governments speak a kind 
parental language to the abject wretches who groan under 
their crushing and humiliating weight."" To make this dear, 
it is necessary only to quote a few passages from a publication 
dated A. O., 1680, and written in defense of the abridgments 
of freedom of speech and press. Sir Robert L'Estrange in, "A 
Seasonable Memorial in some Historical Notes upon the Liber- 
ties of the Press and Pulpit." quotes Calvin as saying: "There 
are two sorts of seditious men. and against both these must 
the sword be drawn : for they oppose the King and God him- 
self." He then exhibits the evolution of dangerous tendencies 
by these words: "First, they find out corruptions in the Gov- 
ernment, as a matter of grievance, which they expose to the 
people. Secondly, they petition for Redress of those Gricv- 
"ZnUae in defcBM af Cbtobb. 

ai9 



Dicli^ency 



iuoglc 



oncENE ure&ATUiuv and constitutional law. 

■ances, still asking more and more, till something is denied 
them. And then, Thirdly, they take the power into their own 
hands of Relieving themselves, but with Oaths and protestations 
that they act only for tlie Common Good of King and Kingdom. 
From the pretense of defending the Government they proceed 
to the Reforming of it; which reformation proves in the end 
to be a Final Dissolution of the order both of Church and 
State. • • * • Their consciences widened with their interest. 
• • • • First, lliey (ell npon the King's Reputation ; they in- 
vaded his authority in the next place: after that they assaulted 
his Person, seized his Revenue; and in the conclusion most 
impiously took away his Sacrrd Life, • • • • The TransHiott 
it so natural from Popular Petition to a Tumult, that the one 
itbutallotFit of the other; and little more Ihana more earnest 
way of petitioning. • • • • They Preach the People into 
miu-tlier, sacrilege, and Rebellion : they pursue a most gracious 
Prince to the scaffold ; they animate the Regicides, calling that 
Execrable villainy an act of Public Justice, and entitling the 
Holy Ghost to Treason.'"* 

This ai^ument, backed by the historical fact, is- unanswer- 
able to the point that to permit freedom of criticism of Govern- 
ment and its officials, and to allow the presentation of petitions 
for the redresui of grievances, is to permit that which tends 
to promote actual treason and rebellion. It follows that those 
who were demanding the opportunity to express their senti- 
ments in criticism of official conduct were in effect demanding 
the right verbally to promote treason with impunity, because 
that was the demonstrated tendency of such utterances. TTiat 
is what unabridged freedom of speech and of the press meant 
to its advocates, and our constitutional guarantee for an iii»- 
abridgfd freedom of utterance was a final decision in favor of 
that view and against all mere psychologic crimes, including 
«ven verbal "treason." 

THE DGFEKSB OP PKSBDOU. KV MILTON. 
In further justification of the contention that unabridged 
freedom of utterance as a matter of right precludes the sup- 
pression of opinions having a "dangerous" tendency, cither 
by direct prior restraint or subsequent punishment — the fear 
of which always operates as a prior restraint — we should 
contrast Ihe foregoing argument for restricting speech with 
the historic argument for freedom made in Milton's ".\reo- 

■*tn (ddlilon li> "A Smoniblr MrmorUI,*' *H. (or •Imllar itiBincnl, "A 
NMflur** of Kcclniullnl Polillc. wbrrcln (he Uliebieb W>d IncoDnaitoes al 
Tolerulofl trc Reprcacntfd," London. 1670, 

330 



Diti"-t^t:t;v 



INTERPItETATION OF "FBEEOOM OF SPEECH AND OF HIE PRESS." 

pagitica." H«re we can quote only a few paragraphs tending 
to show what freedom of speech meant to its friends. Not 
B word can be found to suggest ex post facto punishment as 
a substitute for previous restraint. 

Milton writes: "Till tlicn, books were ever as freely ad- 
mitted into the world as any other birth ; the issue of the brain 
wa* no more stifled than the issue of the womb. • * • * 'To llie 
pure all things arc pure,' not only meats and drinks, but all 
kinds of knowledge, whether of good or evil; the knowledge 
cannot defile, nor consequently the books, if the will and 
conscience be not deRlcd. For books are as meau and viands 
are, some of good and some of evil substance; and yet God 
in that unapocryphal vision said, without exception, "Ri&e, 
Peter, kill and cat." leaving the choice to man's discretion. 
Wholesome meats to a vitiated stomach differ little or nothing 
from unwholesome, and best books to a naughty mind are not 
unapplicable to occasions of evil. Bad meats will scarce breed 
good nourishment in the healthiest concoction; but herein the 
difference is of bad books, that they to a discreet and judicious 
reader serve in many respects to discover, to confute, to 
forewarn, and to illustrate. • ■ • • AH opinions, yea, errors, 
known, read and collated, are of main service and assistance 
toward the speedy ascertainment of what is truest. • • • • For 
those actions, which enter into a man rather than issue out of 
him and therefore defile not, God uses not to captivate under 
a perpetual childhood of prescription, but trusts him with the 
gift of reason to be his own chooser, • • • • 

"I cannot praise a fugitive and cloistered virtue, unexer- 
cised and unbrcathed, tliat never sallies out and sees her 
adversary, but slinks but of the race, where that immortal 
garland is to be run for, not without dust and heat. Assuredly 
we bring not innocence into the world, we bring impurity much 
rather; that which puriRcs us is trial, and trial is by what is 
contrary. That virtue which is but a youngling in the con- 
templation of evil, and knows not the utmost that vice promises 
to her followers, and rejects it. is but a blank virtue, not a 
pure ; her whiteness is but an excremcntal whiteness. ♦ * • • 

"Since, therefore, the knowledge and survey of vice is in this 
world so necessary to the constituting of human virtue, and the 
scanning of error to the confirmation of truth, how can we 
more safely, and with less danger, scout into the regions of 
sin and falsity, than by reading all manner of tractates, and 

Ml 



DmiUt-'i: 



.OOi^lC 



08SCBNE UTERATURB AND CONSTITUTIONAL LAW. 

bearing all manner of reason ? ' ■ ■ " Truth and understanding* 
are not such wares as to be monopolized and traded in by 
tickets and statutes and standards. * • * * Give me the liberty 
to know, to utter, and to argue freely according to conscience, 
above all {other] libertic--', 

"Though ye take from a covetous man all his treasure, he 
has yet one jewel left; ye cannot bereave htm of his covetous- 
ness. Banish all objects of lust, shut up all youth into the 
severest discipline that can be exercised in any hermitage, ye 
cannot make them chaste that came not hither so." 

And yet Nfilton, though he made an unanswerable argument 
for a totally unabridged freedom of utterance, could not get 
wholly beyond all his religious prejudices, and so. altliough the 
argument made no provision for it. he found it necessary dog- 
matically to provide for one exception. "I mean not tolerated 
Popery and open superstition, which, as it extirpates all re- 
ligious and civil supremacies, so itself sJiouId be extirpated." 
While Milton thus fell short of an unlimited intellectual toter- 
ation he yet furnished an immorutl statement of reasons to 
guide us to an unabridged freedom of utterance, and to the 
invalidating of his own exception thereto. 

SPINOZA. 

To this sanK period belong the writings of Spinoia. As 
is to be expected, his viewpoint is different from the others 
of his time. 

He concludes : "We have shown already that no man's mind 
can possibly He wholly at the disposition of another, for no 
one can willingly transfer his natural right of free reason and 
Irec judgment, or be compelled to do so. For this reason the 
government which attempts to control minds is accounted 
tyrannical, and it is considered an abu^ of sovereignty, and 
a usurption of the rights of subjects, to seek to prescribe what 
shall be accepted as true, or rejected as false, or what opinions 
shall actuate men in their worship of God, All these question.s 
fall within a man*5 natural right, which he cannot abdicate 
even with his own consent. * ■ ■ • The individual justly cedes 
the right of free action, though not of free reason and judg- 
ment. No one can <Kt against the authorities without danger 
to iJie State, though his feelings and judgment be at variance 
therewith. He may even speak against them, provided that 
be does so from rational conviction, not from fraud, anger. 




222 



DitriiJt-;! ny ' 



.003 ic 



IKTKRPRETATtON OP "fRKEOOM OF SPEKCII AND OP THB PRESS." 

or hatred, and provided that he does not attempt to introduce 
any change on his private authority. • • • • Thus wc sec how 
an individual may declare and teach what he believes, without 
injury to the authority of his rulers, or to the public peace; 
namely, by leaving in their hands the entire power of legis- 
lation as it affects action ; and by doing nothing against their 
laws thou);h he be compelled often lo act in contradiction to 
what he believes, and openly fccis to be best. From the funda- 
mental notions of a State, we have discovered how a man i 
may exercise free judgment without detriment to the supreme 
power ; from the same premises we can no less easily determine 
what opimom would he seditious. Evidently those which by 
thtir very nature nullify the compact by which the right of free 
aclion is ceded. • • • • 

"If we hold to the principle that a man's loyalty to the 
State should be jtidged. like hts loyalty to God. from bis actions 
only — namely from his charity toward.* his neighbors — we 
cannot doubt that the best government will allow freedom of 
philosophical speculation, no less than of religious belief. I 
confess that from such freedom inconveniences may sometimes 
arise, but was any question ever settled so wisely that no 
abuses could possibly spring therefrom? He who seeks to 
regulate everything by law i» more likely to arouse vices than 
to reform them." 

Prom these quotations it appears that Spinoza did noCi 
believe in an unabridged freedom of utterance. His belief 1 
in the psychologic crim« of a mere verbal treason, though 
limited within unusually narrow range, followed logically from 
his erntneou^ cimception af the sphere of government. Of this 
he said : "The rights of the sovereign are limited by his power," 
Since in his theory of government sovereign rights arise out 
of a ce!.sion of freedom of action by the citixen. the opinion 
which nullified that hypothetical compact could be called 
treason so long as the sovereign had the power to suppress it 
as such. It is quite probable, and at lea»t con^Ment with his 
theory, that this exception may liave hccn made by Spinoea 
as a condition of securing tolerance for the rest of the argu- 
ment in favor of free speech. 

However that may be, as Spinoju repudiated the exception 
to unabridged freedum of utterance reserved by Mitton, so 
the latter annihilated the one exception made by Spinoia. The 
premises of each exception were specifically repudiated by the 

223 



DieteencyV^i* 



OBSCKNK UTERATUHE AND CONSTITUTION At LAW. 

American Declaration of Intkpcndence and American Consti- 
tutions, and hence theite exceptions to unabridged liberty of 
utterance alw must fall. However, the matter that I now wish 
specially to emphasize is this : The very nature of these argu- 
ments for lai^er freedom is such as utterly to destroy our 
judical assumption that the friends of unabridged freedom 
of utterance, who framed our Constitutional Guarantees, 
meant only to provide for tx ptut facto punishment as a 
substitute for previous restraint. 



UONTESgUIEU. 

Some years after the dealh of Milton came the birth of 
Montesquieu, who "commanded the future from his study 
more than Na{)ole»n from his throne," and whose book on 
"The Spirit of the Laws" "probably has done as much to 
remodel tlic world as any product of the eighteenth century, 
which burned so many forests and sowed so many fields." 

In the opinion of Justice O. W. Holmes. "Montesquieu had 
a possibly e.xaggerated belief in the power nf legislation," 
which alone would not predispose him a^^inst censorship. 
The frequent reference to him in The Federalist and other 
discussions of llie revolutionary period, as well as our Constitu- 
tions themselves, all show how the thought provoked by bis 
book helped to shape our Institutions. This makes it all the 
more imporunt to ascertain his views upon the province of 
the SL-ite in relation to the liberty of speech and press, because 
of their quite direct bearing upon the historical interpretation 
of our Constitution. 

On the subject of religion, he emphasizes the essential 
difference between human and divine laws, and argues reserv- 
edly for general toleration of all religion, and concludes: 
"When the legislator has believed it a duty to permit the 
exercise of many religions it is necessary that he should enforce 
also a toleration among these religions themselves. • • • • 
Penal laws ought to be avoided in respect to religion." 

In the matter of verbal treason, Montesquieu seems very 
exact in his statements and comprehensive in his thought. 
Only a few lines will need quoting. He says: "Nothing 
renders the crime of high treason more arbitrary tlian declaring 
people guilty of it of indiscreet speeches. ■ ■ • ■ Words do 
not constitute an overt act; they remain only an idea. When 
considered by themselves, they have generally no determinate 



J24 



I 




Ditjtiit--yiiy 



oogic 



IHTKRPXETATION OF FREEDOM OP SPEECH AND OP THE PKESS. 

signification, for this depends on the tone in which they are 
uttered. • « • * Since there can be nothing so equivocal and 
ambiguous as all this, how is it possible to convert it into a 
crime of high treason ? Wherever this law is established, there 
is an end not only of liberty, but even of its very shadow. • • • • 
"Overt acts do not happen every day ; they arc exposed to 
the naked eye of the public, and a false charge with r^ard 
to matters of fact may be easily detected. Words carried 
into action assume the nature of that action. Thus a man who 
goes into a public market-place to incite the subject to revolt 
incurs the guilt of high treason, because the words art joined 
to the action, and partake of its nature. It is not the words 
that are punished but an action in which words are employed. 
They do not become criminal but when they are annexed to 
a criminal action; everything is confounded if words are con- 
strued into capital crime, instead of considering them only at 
a mark of tfiat crime."" 

In this evolution to a clearer conception of the issues and 
die more exact statement of the claims of contending parties, 
we have now reached the place where unabridged intellectual 
liberty is defined by excluding from the category of crime 
every offense founded upon speech, merely as such, 

IILACKSTONE AND HIS CKITICS. 

Blackstone was the victim of most of the popular super- 
stitions of his time, from witchcraft down. Of course he 
indorsed the current theory of government and consequently 
the current abridgments of freedom of speech and press. He 
had no desire or intention to vindicate man's natural right 
to such liberties unabridged, but approved and made declara- 
tions of the laws in operation, as he found them. Thus he 
wrote: "Everything is now as it should be with respect to the 
spiritual cognizance, and spirtual punishment of hcre^^y; unless 
perhaps that the crime ought to be more strictly defined, and 
no persecution permitted, even in the ecclesiastical courts, till 
the tenets in question arc by proper authority previous declared 
to be heretical. Under these restrictions, it seems necessary 
for tlie support of the national religion that the officers of 
the church should have power to censure heretics, yet not to 
harrass with temporal penalties, much less to exterminate or 
destroy tliem.'"* 

These spiritual censures and excommunication involved 

■VoU I., p. 733. Aldlne EdKlon. 
"Vol. * CommenUfie), p. 49. 

"5 



Dlcli^MCy ' 



iooglc 



OBSCENR LITBSATUkK AND CONSTITUTIONAL LAW. 



.»T 



indirect penalties, such as incapacity for "suing an action, 
being witnesses, making a will, receiving a l^acy," etc., and 
tbcse indirect consequences it would seem that Blackstone 
approved. 

Again he writes: "The (some not unabridged] liberty of 
the press is indeed essential to the nattire of a free state : but 
this consists in laying no previous restraints upon publications, 
and not in freedom from censure for criminal matter when 
published. • • • • To subject tlie press td the restrictive power 
of a licenser, as was formerly done, ' * * * is to subject all 
freedom of sentiment to the prejudices of one man, and make 
him the arbitrary and infallible judgeof all controverted points 
in learning, religion, and government. But to punish, as the 
law does at present, any dangerous or offensive writings which, 
when published, sliall on a fair and unpartial trial be adjudged 
of a pernicious tendency, is necessary for the preser\-ation of 
peace and good order, of government and religion, the only 
solid foundations of civil liberty.",'*-'' 

It should be apparent from the mere reading that Black- 
stone was defending and describing only such limited liberty 
by permission as was then enjoyed in England, and never in- 
tended either to define or defend unabridged freedom of dis- 
cussion, as tliat was contended for by his opponents, whose 
views, and not Blackstone's, were adopted into our Constitu- 
tions. For this reason, one may well be .surprised to find the 
foregoing statement from Blackstone quoted by American 
courts as an authority on the meaning of unabridged freedom 
of utterance, which he never mentions. 

One of Bl3ckstone*s critics, whose book went through more 
than one edition and of whom it is said," "he induced the 
learned commentator [Blackstone] to alter some po.sitions in 
the subsequent edition of his valuable work," had this to say 
as to llie meaning of unabridged freedom of speech: 

"For. though calumny and slander, when affecting our 
fellow men, are punishable by law ; for this plain reason, 
because an injury is done, and a damage sustained, and a repara- 
tion tlicrefore due to the injured party; yet, this reason cannot 
hold where God and the Redeemer are concerned; who can 
sustain no injury from low malice and scurrilous invective; 
nor can any reparation be made to them by temporal penalties ; 
for these can work no conviction or repentance in tlie mind of 
the offender: and if he continue impenitent and incorrigibl*. 

■\'ol. 4 BI*ck*I«««*> Comncnorlta, p, ISI. 
"Alllbonc'i "DitlipniiT «* Autton." 

226 



Dic"it';!uv 




INTBRPSBTATION OF "PKEEDOU OP SFEBCII AND OF THE PRESS, " 



he will receive liis condign puniiihment in the day of 6nal 
retribution. Affronting Christianity. tJicrefore, does not come 
under the magistrate's cognizance, in this particular view, as 
it implies an offense against God and Christ."" Here is again 
a clear recognition and plain statement which, like Montes- 
4|uieu's, demandik that actual and material injury shall be the 
basis of prosecution and not mere speculation about psycholo^ 
tendencies. 

MANSPIELD AND KENYON. 

Some of our courts, in addition to Black&tone, dte Lords 
Mansfield and Kcnyon, as authorities on the meaning of un- 
abridged freedom of tilterance as though their views had been 
adopted into our Constitutions. Concerning these opinions, 
Sir James Fitz James Stephens (after quoting the differing 
definitions of Lords Mansfield and Kcnyon as showing what 
was the oflicial conception of freedom of the press) says: 
"Each definition was in a legal point of view complete and 
accurate, but what the public at large understood by the ex- 
pression was something altogether different — namely the right 
of unrestricted discussion of public affairs."" 

In other words, the judicial conception of free speech was 
an abridged free speech, and the popular demand was for an 
tinabridgtd free speech. It should need no argument to prove 
that the latter, and not the former, was intended to be adopted 
into American Constitutions, and to me it is difficult to account 
for the contrary opinion, often expressed by our courts, which 
quite uniformly ignore even the existence of the pre-revolu- 
tionary contention against the English official conception as 
•expressed by the Star Chamber, tlie English Parliament, Black* 
stone, Mansfield, or Kenyon. 

BISHOP HOBSLEY. BEV. ROBERT UALL, AND TUOMAS JZFFEMSOtt, 
The issue between "freedom of the press" in the official 
English sense, on llie one side, and unabridged freedom of 
utterance on the other, was made clear in another English 
controversy following so closely upon the heels of our adoption 
of the first amendment as to be fairly considered an English 
aftermath of that agitation and of the American Revolution. 

Bishop Horsley. on January 30, 1793, delivered a sermon 
before the House of Lords, wherein he indulged in a severe 
«nsure of that "Freedom of dispute" on matters of "such 

■FuincBiii'* "Lcltsra oa ToltrstlBB." pp. Vh7l, ScMod EdlliDo. 
"Vol a "Crim, L»w ef Ene.." p. U9. 




DliiTUt'ilUv 



Google 



OBSCENE UTERATURE AND CONSTITUTIONAL LAW. 

high importance as the origin of government and the authonty 
of sovereigns," in which he laments that it has been the "folly 
of this country for several years past" to indulge. Of the 
divine right of Kings he declared: "It is a right which in no 
country can be denied, without the highest of all treason. The 
denial of it were treason against the paramount authority of 
God." 

These premises had recently been repudiated by oar 
Declaration of Independence, by tlie American Constitutions, 
and by the friends of unabridged freedom of utterance every- 
where. One of the conspiciious critics of Bishop Horsley 
was the Rev, Robert Hall. In arguing against the rightfulness 
of punishing mere psychologic crimes, he laid down tne limits 
of governmental action which must be adhered to if freedom 
of speech is to remain an unabridged right, instead of mere 
limited liberty by permission. He said: "The law hath amply 
provided against overt acts of sedition and disorder, and tn 
suppress mere opinions by any other method than reasoning 
and argiuncnt is the hight of tyranny. Freedom of thought 
being intimately connected with the happiness and dignity of 
man in every stage of his being, is of so much more importance 
than the preservation of any Constitution, that to infringe the 
former under pretense of supporting the latter, is to sacrifice 
the means to the end."" 

In his discourse, tliis Reverend author often emphasizes 
the difference between ideas and overt acts and makes plain 
over and over that in his view actual injury should be the 
criteria of guilt, and not mere apprehension as to a psycliologic 
tendency. Our constitutional definition of Treason and the 
guarantees of the right to carry arms, of "due process of law." 
and of unabridged freedom of utterance, show that it was 
such views as Milton argued for. and as Montesquieu and the 
Rev. Robert Hall expressed, and not the views of Blackstone. 
Mansfield. Kenyon, or Bishop Horsley, that our Constitutions 
sought elTectually to perpetuate. 

Both before and after these utterances by the Rev. Robert 
Hall there was most eminent American authority for the same 
interpretation of the meaning of a "free press." Thomas 
Jefferson is popularly supposed to have had much to do with 
framing the Declaration of Independence and shaping our 
American institutions. He was a dominant figure in Virginia 
politics for many years. Those who have faTniliarized them- 

""Ad Apolocr tor PrMdan •( tb* Pnn." p. it. 

338 



Die iJisn cy 



INTERPRETATION OF 'FBIfEOOM OF SPEECH AND OP THE PRESS. 

selves with the religious views of Jefferson," will not doubt 
that he encouraged the passage of the Act of the Suie of 
Virginia establishing religious freedom. Although draftedj 
Willi a view only to theological subjects, it contains a summary^ 
of inoootrovertible reasoning in favor of the general liberty of 
inquiry and a clear statement as to where the jurisdiction of the 
state rightfully may be invoked without abridging inteileclu^ 
liberty. Tlie Virginia enactment says: "To suffer the Civil 
Magistrate to intrude his power into the field of Opinion, or 
to restrain the profession or propagation of principles on sui>- 
position of their ill tendency, is a dangerous fallacy, which at 
once destroys all liberty, because he, being of course judge of 
that tendency, will make hi.* opinions the rule of judgment, 
and approve or condemn the sentiments of others only as they 
shall square with or differ from his own. It is lime enough 
for the rightful purposes of Civil Government for its officers 
to interfere when principles break out into overt acts against/- 
peace and good order." " 

The Virginia declaration was made in 1786, several years 
before the adoption of the first amendment to the Federal 
Constitution. The Virginia enactment makes it clear that In 
their opinion the Slate has no rightful authority over opinion 
of any sort, and should not be suffered to interfere until 
ACTUAL injury has resulted. It was that conception of 
"freedom of the press" which America adopted, and not the 
English tyrants' conception, to which it was opposed, and 
which originated in the odious Star Chamber, found a palatable 
justification in Blackstone and the English Judicial decisions, 
and an ofScial re-echo in American Courts, engaged in ex- 
plaining away our constitutional guarantee for an unabridged 
freedom of utterance. 

When the Federalist party was defeated because of its 
enactment of the Alien and Sedition Law, and Thomas Jef- 
ferson became President of the United States, he proceeded 
to pardon every man who had been convicted under this 
infamous statute. That the penalized utterances tended to 
sedition made no difference to him, which indicates that he too 
indorsed the views of Montesquieu, the Rev. Robert Hall, and 
tite quoted enactment of the Virginia Legislature, as being 
the correct interpretation of the words "unabridged freedom 
of speech and of the press," Jefferson's own statement as to 
hb conduct is a* follows: 

*S*(. "Six niilarlc AdiiHekni." 

"Rcquolcd Iron Wamnaa*!. "Llb«>tr a( th« PrtM," f. 171. 

229 



DnjlJIuHUy 



GotJi^lc 



OBSCBNK UTERATUaa AND CONSTITUTIONAL LAW. 

"1 cliscliargcd every person under punishment or prosecution 
under the sedition law, because I considered and now consider 
that law to be a nullity, as absolute and as palpable as if 
Confess liad ordered us to fall down and worship a golden 
image ; and that it was as much my duty to arrest its progress 
in every stag« as it would have been to have rescued from the 
fiery fumace Uiose wlio should have been cast into it for 
refusing to worship the image. It was accordingly done in 
every instance, without asking tvhat the offenders had done, or 
ai^ainst whom they had offended, but whether the pains they 
were suffering were inflicted under the pretended sedition Imo. 
It wa« certainly pos-.ililc that my motives in contributing to 
the relief of Callandar. and in liberating sufferers under the 
sedition law, might have been to protect, reward, and encourage 
slander; but they may also have been those which inspire 
odinary charities to object* of distress, meritorious or not— or, 
the obligation of an oath 'to protect the CoHstilution.' violated 
by an authori»d act of Congress."" 

This action on the part of President Jefferson was con- 
sistent with the issue upon which he was elected, and was 
required by his own conception of what was meant by an 
unat)ridged "Freedom of Speech and of the Press" as applied 
to verbal treason. His views are thus expressed in his first 
inaugural address: "If there be any among us who would 
wish to dissolve this Union or to change its republican form, 
let them stand undisturbed as monuments of the safely with 
which error of opinion may be tolerated where reason is left 
free to combat it." 

These discussions again proclaim the historic view that 
unabridged freedom of utterance means that every man may 
say with impunity whatever he please*, being held responsible 
and punishable only for actual resultant injury, that being the 
only abuse of such freedom which can be penalized. 

TAXES ON KNOWLEDCi:, 

Another form of impairing natural intellectual opportunity, 
and therefore an abridgment of freedom of the press, was 
taxes upon knowledge. In America, where to a very large 
extent we have Gtivernment by newspapers, it seems unlikely 
that such taxes will ever again become a subject of controversy. 
However, we must briefly consider the matter as an historical 

*Sre. * Utltnoo't ComplaU Woria, SM. quotvi] in HmUi'i t. Rycrstt. 
t WlKooun tSi. 

230 



Disliien cy 



INTERFBRTATtON OF FREEDOM OF SrBSCII AND OF TUK PSBSS. 

issue SO that our final generalization as to unabridged freedom 
of the press may negative also this fonii of abrid^neiil. 

George Jacob Holyoake has briefly described the conditions 
against which he. and other friends of inttllectua! freedom 
before him. waged such strenuous battle. These are hi* words : 
"Yet every newspaper proprietor was formerly treated as a 
blasphemer and a writer of sedition, and compelled to give 
substantial securities against the exercise of his infamous 
tendencies; every paper-maker was regarded as a Ihicf. and 
the officers of the Excise dogged every step of his business 
with hampering, exacting, and humiliating suspicion, Every 
reader found with an unstamped paper in his possession was 
liable to a fine of £20. When the writer of this published 
the 'War Clironicles' and 'War Fly Sheets,' the Inland Revenue 
Office bought six copies as soon as each number was out ; thus 
he incurred fines of £120 before breakfast, and when the 
last warrant wan ii'jued against him by the Court of Exchequer 
he was indebted to the Crown £600,000. Besides, he had 
issued an average of 2.000 copies of The Rcasoner for twelve 
years, incurring fines of £40.000 a week, which amounted to 
a considerable sum in twelve years. He who published a 
paper, containing news, without a stamp, was also liable to 
have all his presses broken up, all his stock confiscated, him- 
self, and all persons in his house, imprisoned, as had been done 
again and again to others within the writer's knowletlge. 
Neither cheap newspapers nor cheap books could exist while 
these perils were possible." 

In his "History of the Taxes on Knowledge." Collet in- 
fonns uf- that "The History of the Taxes upon Knowledge 
b^ins with their imposition (1711) in the reign of Queen 
Anne. The battle against the Press had. indeed, begun before 
that date." The year 1855 marked the final repeal of the 
last of these English stamp acu. and those requiring bonds. 
etc.. from publishers. Those who are interested in this par- 
ticular battle for larger freedom of the press are referred to 
Mr, Collet** interesting account." In all these discussions, it 
is apparent that the main purpose was not to favor one system 
of raising revenue as against some other system, but to in- 
crease the intellectual opportunities of all. by removing aU 
State-created impediments to the greatest natural freedom 
for the interchange of ideas. 

■"Tutt en Knowldgc. (hr tiorr at lb*ir OHcja mil Rrjml." tdD4.. IMf; 
Mt altn PiiMnon on "Lihtrtji of Proa iiul Spctck?* fi 57. 



Ditjiiit-'uuy 



Coo^^lc 



OBSCENE UTESATURE AKD CONSTITUTIONAL LAW. 



r 



THE CENS0H5H1P OF UAILS. 

We next consider the method of creating inequalities in 
tntellectuaJ opportunities, and of abridging them, by means of 
a State-created postal censorship, which is fast becoming an 
important issue in the contest for intellectual freedom in 
America^ The American postal censorship over mai! matter 
y began in 1873. when a law was passed, witliout debate, making 
"obscene" matter unmailable. I am informed that the original 
draft of this bill included "blasphemy" in the unmailable list, 
thus again emphasizing the origin in religious intolerance, and 
pointing to the ultimate purpose of those who are so per- 
sistently advocating and securing extensions of our postal 
censorship. This censorship has already been extended, so 
that now even political literatue. which in European monarchies 
is spread without hindrance, has been excluded from Amer- 
ican mails and penalized. The statutes heretofore have only 
provided ex post facto punishment for use of the mails; they 
did not authorize the postal authorities to prevent the trans- 
mission of prohibited matter. In several Congresses, the 
Postal Department asked an amendment to the laws such as 
would give the postmaster power to refuse transmission to 
forbidden matter. The amendment never was passed. Not 
abashed by the refusal of the Congress to confer the power, 
the authorities proceeded to usurp it. under the usual guise 
of a new "construction" of existing statutes. This usurped 
power, having been calmly acquiesced in by the public, soon 
received judicial confirmation and gradually has been extended, 
so that it now assumes to override the judical department by 
excluding from the mails publications which the courts have 
decided are mailable, and has excluded matter without the 

V warrant of any statute, relying upon the absence of a remedy 
for the afilictcd persons. 

* Under our modem conditions of living, with their cheap 
printing and postal facilities, to be denied the use of the mails 
for the spread of one's ideas creates a relatively greater in- 
equ3lit>' and abridgment of intellectual opportunity than ever 
was created by any prior form of censorship. Since private 
competition with our public mail service is prohibited by law, 
and since in these times of a cheap periodical press no one can 
hope ever to attain a favorable public opinion, in competition 
widi bts iBtellectual opponents, except by publication through 



»S» 





Dis";t--ti Uy 



INTBBPReTATION OP FX£EOOU OF SFEECU AND OF THE PRESS. 



the maib, Uter«(ore it follows that a postal censorship is the 
most effective possible abridgment of freedom of the press. 
Moreover, since the postal authorities now exercise a usurped 
ccnsorhip over postal matter prior to publication through the 
mails, we have quite effectively, though unconsciously, re- 
establthed in some fields of thought a "previous censorship." 
substantially like that against which Milton wrote nearly 300 
years ago. If this previous censorship is upheld, in spite of our 
Constitutions and judicial dictums against the legal po:»>ibiIity 
of a "previous censorship," then its spread into other, and 
finally all, fields of thought is only a matter of time. Under 
present conditions, the difference between a censorship previous 
to printing and one after printing but previous to publication 
by mail, is one of no practical import, because a book that 
cannot get publicity by mail might as well never be printed, 
unce without facilities for distribution by post, interstate com- 
merce, or private competitors of the postal system, the securing 
of readers is practically impossible. Furthermore, a censorship 
after printing, and before publication by mail, is worse than 
one before printing, because it inflicts the needless loss of the 
cost of printing, * 

The infamous Licensing Act of England, against which ^ 
Milton wrote, was passed September 20, 1649, and provided, 
among its pernicious abridgments of freedom of the press, that 
"no person whatever should prcsiune to send by the post, 
eorritrs, or othertvise, or endeavor to dispense, any unlicen.<ied 
book,"etc.,on penalty of fotfciture, fine.and imprisonment. As 
If to add insult to injury, every printer was required to give 
a bond to "The Keepers of the Liberties of England," to insun^ 
against the violation of the licensing act. )lt was precisely this 
censorship previous to publication by mail against which Milton 
wrote his "Areopagitica." Our courts have said thai the ab- 
setKe of "such previous restraint as had been practised" is the 
one thing, at least, against which our constitutional gttaranteo 
protect us. and yet in spite of Courts and Constitutions we 
have for some time acquiesced in just such a usurped postal 
censorship previous to publication by mail. Furthermore, ow- 
ing to the uncertainty of the statutory criteria of mailability, 
this censorship prevbus to publication by post is in practise 
an arbitrary discretion. So, then, we do not even have left 
the one lonely element of freedom which our courts too often 
have mistaken for all there is to unabridged freedom of the 



*aa 





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ODSCP.NK LITERATUEF. AMD CONSTITUTIONAL LAW. 



press. Even that little "all" ha» diuppearcd, and only the 
blank paper of our Constitutional g:iiarantee remains. When 
the iRSue is squarely presented, will our courts confirm also 
the destruction of this last element of freedom of the press, 
and so vest Con8;rcss and our I'cderal bureaucracy with all the 
powers over the press which our Cotistitution was supposed 
to witlihold? 

An Kngli^h Barrister -at-law nives ub this hricf account ol 
the postal censorship in England: "The right of free speech 
and writing can scarcely exist in perfection without mechanical 
facilities for exchanging letters and printed matter between 
correspondent*, * • • • What is desired by each and every 
citizen is. that he shall be entitled to send and receive all com- 
munications which he thinks material to his own interest, and 
that no third party shall be allowed to tamper or interfere with 
this operation — so that a message sent in writing or print shall 
be secret and invioLible from the moment it is despatched till 
the moment it is delivered. This has for two centuries been 
more or less attained. The great medium for this communica- 
tion between the subjecLs began in 1635. on a small scale, at 
the stiggcstion of the Crown, but Parliament soon saw its im- 
portance, and in 1649 passed a resolution that the office of post- 
master ought to be [at] the sole disposal of Parliament. In 
1710 a statute laid down the chief rules, and one of these, 
continuing as it did the first sketch of a plan projected under 
Charles I., forbade all other persons to carry and deliver letters 
for hire. • • • • 

"It appears to have beci» a century ago the common 
complaint of leading statesmen that their political opponents 
made a practise of opening their letters when they had the 
power. • • • * 

"In 1822 complaint was made by a member of Parliament 
that a letter sent him by a prisoner had been opened. And, 
though the Government claimed the right to do so for precau- 
tion, yet many urged that it should be deemed a breach of 
privilege; this step, however, was not taken." Again, in 1844. 
instances of private letters being opened were complained of, 
and Parliamentary committees invcstifjatcd the practise, and 
found sufficient confirmation of the suspicion that such a prac- 
tise was not unfrcquent, especially in connection with foreign 
refugees." Sir R. Peel said that no rule could be laid down 
on such a subject, and successive Secretaries of State of sU 

"fi Pwl. D«b. (Id), 2S2. »46. 

*7S Fad. Deb. (1) l3Mi Ji WO. 212, 296. 

234 



Dicii^encyV^i* 




INTFJIPKKTATION OP "PHIiKDOM OP SPtCECU AND OP THE PRESS.' 



parties had been in tlie habit of exercising this power at dis- 
cretion."" 

Thu.s this great ;iiithortty on freedom of the press informs 
us that, according to the English conception of it. llic period of 
our revolution found it a matter of constant complaint that 
there was a post-office censorship. Those who thus complained 
were the friends of a larger intellectual liberty and it was their 
view that was adopted into our constitutional guarantee for 
tlie security of papers against unreasonable searches, and 
again<.t all abridgments of freedom of utterance. These two 
clatises together, until judicially explained away, would seem 
clearly to preclude the search of unsealed as well as sealed 
mail-matter for Ihc purpose of crfating inequalities of right 
to the public sennce, according to whether the ideas transmitted 
are officially approved or disapproved. This is the self-evident 
meaning of our Constitution when viewed in the light of the 
issues that were agitating the public at the time of its adoption. 
The manifest purpose was the increase of intellectual oppor- 
tunity, even though it protected such as might be inclined to 
sedition, and just as manifestly it was not tlie purpose merely 
to change a business policy in relation to a department of 
government. 

To show that the advocates of unabridged freedom of the 
press included a mail service free from censorship as a part 
of their conception of freedom of speech, I will content myself 
with one (]notatton from Jeremy Bentham, as confirming the 
foregoing historical interpretation. After explaining that the 
only check to tyrannous government is "instruction, excitation, 
and facility of correspondence" that "the national mind be 
kept in a state of appropriate preparation ; a state of prepar- ; 
ation for eventual resistance," he later continues thus : "Neces- 
sary to instrnction — to excitation' — in a word to a state of 
preparation directed to this purpose is (who does not sec it?) 
the perfectly unrestrained communication of ideas on every 
subject within the field of government — [which includes the 
discussion of sexual physiology and psycholoRy as a founda- 
tion for sex ethics, and the latter even from the viewpoint 
of the free-lover and polygamlst because a democratic govern- 
ment mu:tt leave it*elf free to change even its marriage laws] 
the communication, by vehicles of all sorts — by sip^s of all 
sorts ; signs to the ear — signs to the eye — by spoken language — 
by written. Including printed. language — by the liberty of the 
■Rc(<. nf SNm T'^n. Il^t: PaltmieD, "Llbmr of tb« PraK SpeecK *>< 



Public Wonhip." pp. ili-19. 



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OBSCENK UTBKATUIUC AND CUNSTITUTIONAl. LAW. 



tongue, by th« liberty of the writing desk, by llie liberty of 
the post office — by the liberty of the press." He repeats that 
this is necessary, "not only for instruction, but for excitation" ; 
aU "for keeping on foot every facility for eventual resistance."" 
Bentliam then pointed to the United States as a place 
where such liberties existed, but he could not do so now were 
he alive. The Declaration of Independence, the constitutional 
guarantees for the right of assembly, due process of law, tlie 
right to bear arms, and against searches and seizures; the 
declarations of the conventions of several of the States, the 
constitutional guarantees of unabridged freedom of speech and 
of the press — all proclaim the intention to protect the right 
of the citizen against punishment for mere psychologic crimes, 
to the end that he always may be prepared for eventual re- 
sistance, even of goverimicnt itself." 

PSVCIIOLOGIC TENDENCY AS CHITERION OF GUILT. 

Historically considered, an inseparable part of tlie conten- 
tion for a larger, or an unabridged, liberty of speech and of 
the press was the condemnation of that practise in the prosecu- 
tion for libels which made the guilt of the accused depend upon 
"the evils which may be imaginatively and prospectively at- 
tributed to the influence of his opinions." The opposition to 
this uncertainty in tlie criteria of guilt was not limited to 
persons who believed in unabridged freedom of speech, but 
was often very forcibly urged by tliose who desired only a 
little or no enlargement of intellectual opportunity. Even 
Blackstone believed that the criteria of guilt for heresy and 
seditious utterances shniTld be made more certain. 

The protest afrainst tlie uncertainly of the tests of crimia- 
ality iu prosecutions for seditious and blasphemous utterances 
was upon two distinct grounds. The first and most general 
of these wan the historical retrospect, and was an appeal to 
expediency. The argument ran thus: Books once condemned 
for their supposed evil tendencies are now believed to have 
been good and UNcful. In making the psychologic tendency 
of an Utterance the test of its criminality, we are again opening 
the door for a repetition of such error. Therefore, such 
criminal laws are inexpedient and should be abolished. The 
second reason for objecting to the tendency-test in penalized 
utterances was from the point of view of that larger demand 
for liberty which was founded upon the idea that no freeman 

"Jrftmy Benthtm. "On I.ibrnj ol lh« Pint tni Public DiKUxlon." 

"Sttrm. "Sourca o( the Conitltuilon of ihe Unlttd Snl»«." ty. 23S4M; 
'Blwlniane'4 Cammentarin. *. I, p. 1S4; Cooler, "Caulltulional Law. VO. 

236 



INTUtCKKTATIUN OP "PSBEDOM Or SPEECH AND np TBB IMIKSS." 

should be deprive' of his liberty except by latoful judgment of 
his peers, or by the law of the land. This was predicated upon 
the conception that every man should in jujticc be forewarned 
that his act is penalized. It could not be the law of the land 
if it did not imparl that advance information, and could not 
accomplish this except an exact statement of the criteria of 
guilt was a part of every criminal statute. By such means the 
lovers of Liherly hoped to obtain freedom under law in contra- 
distinction to A mere liberty by permission under lawless despot- 
ism. To such persons, it was self-evident that a speculative 
Opinion about the psychologic tendency of an utterance upon a 
future, undescribed. hypothetical, reader, or hearer, when used 
as a criterion of guilt, could be no restraint upon the moral 
idiosyncracies, stupid bigotry, unreasoned hj-sterical apprehen- 
sion, personal interest, or even the superstitious malice, of 
those charged with the duty of determining whether or not 
a verbal crime had been committed. Ii was seen that under 
such circumstances guilt must be determined by ex post /ati» 
standards, personal to the individuals passing judgment. This, 
it was argued, was government :iccording to the Uwlea»J 
despotism of man, and the friends of freedom ileniiinded U* 
one of the conditions without which there could be no liberty 
of speech or press, or liberty of any sort, that the criteria of 
guilt be so certain that every man should know tn advance, 
from the very letter of the law, by what standard his conduct 
would be adjudged criminal. It goes without saying that so 
long as an ex post facto judicial guess as to the psychologic 
tendency of a speech, book, or picture is the test of guilt, there 
can be no such thing as liberty under the Iotv. Even from 
those to whom "free speech" meant a limited liberty by per- 
mission, there came a protest against tyranny, and the demand 
for the freedom of every man's opinion from that arbitrary 
power for the penalJicing of words by standards of an ex 
poll facto guess or pretense about "the evils which may 
be imaginatively and prospectively attributed to the in- 
fluence of his opinions." 

As proof of the assertion that a demand for certainty 
in the criteria of guilt always was a part of the agitation for 
more freedom of speech and press, wc need but to point out 
that vast literature which was brought into being against 
constructive treason and seditious libel. Erskine's speeches 
are replete with the glorification and demand for such certainty. 



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OOSCSNB LITESATUKK AND CONSTITUTIOKAt. LAW. 




Here it is only necessary to call attention to its existence as a 
(ttrt of the agilation for enlarged liberty. The discussion of 
the question is better treated as a subdivision of an argument 
to support the contention that "Due Process of Law" does 
not obtain unless every criminal statute prescribes the criteria 
of guilt with mathematical certainty. 

m CONCLUSION. 

This historical review of the contentions which resulted in 
the adoption of our constitutional guarantees for an unabridged 
freedom of speech and of the press, is already too long for 
comfortable reading, and not long enough to be anything like 
an cxh.iustive treatise. I believe, however, that it adequately 
establishes the following propositions: 

I. The contention for an UNABRIDGED freedom of 
utterance was always founded upon a demand for unrestrained 
intellectual opportunily, and never concerned ilself primarily 
with preferences between different metliod.s of abridging that 
freedom. 

II, It opposed all past and existing restrictions upon in- 
tellectual intercourse, such as licensing printers or books, 
censoring the post or other means of transmission, putting 
taxes upon knowledge, and inflicting ex post facto punish- 
ments ; and our Constitutions not only sought to prevent a 
rccurrance of any of these former methods of abridging in- 
tellctitat opportunily. but the antecedent discnssion and the 
language used clearly express the determination to preclude 
the enforcement of any other, even theretofore untried, 
methods of curtailing intellectual intercourse, although again 
claimed to be advocated for the furtherance of the public 
wel fare, 

in. TTie demand for unabridged freedom of utterance 
always was a demand for the abolition of all mere psychoI<-.i;ic 
crimes and all that uncertainty which attended them from the 
fact that the criteria of guilt were usually "the evtla which 
may be imaginatively and prospectively attributed to the in- 
fluence of one's opinions"; and the co-related demand that 
crime should always be predicated upon a certainty, such as 
an actual and material injury, or perhaps also the imminent 
danger of such, according to the known laws of the physical 
universe. 

»38 



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INTEBPIIETATION 07 FKBEDOM OF 



THE PRESS. 



1 1 we gencraliic all tlicsc contentions for a larger and an 
unabridged intetlvctiul oppurtunity, we shall have a compre- 
hensive statement of the historical interpretation of unabridged 
freedom of speech and of the press, and if the form of state- 
ment is such as to furnish us with the criteria for determining 
a breaching of the constitutional guarantee, we shall have 
s statement in substance like that at the beginning of this 
chapter. 

If then we wish to determine whether or not any given 
law is violative of the free-press clause of our constitutions 
we must deductively apply to the law the several tests staled 
at the beginning of this chapcr. Doing this, with reference 
to our laws prohibitive of sex-discussion I find them, in their 
separate parts, to be unconstitutional, under the second, fourth, 
and fifth, test of constitutionality. 

One thing is cerlain a> death : Nobody intended that our 
constitutions should increase the governmental authority to 
penalize the transmission of ideas. If it shall be held that 
the constitutions were not designed to enliirgc intellectual 
opportunity, as has been hereinbefore contended, then the 
only alterative is the proposition that the constitutional in- 
hibition against abridging freedom of utterance prohibits only 
such Ici^slation as restricts it beyond then existing abrtdg' 
nieHLf. In Chapter III. it has been shown that under the 
common-law, as it obtained in the .American colonics, "obscene" 
literature was never penalized merely on account of its 
"obscenity." So Ihen even under this anti-historical and 
most narrow interprctalinTi. the statutes now under consider- 
ation are unconslituti<jnal because they abridge freedom of 
utterance beyond the e.rislin£ restrietions of colonial eommon- 
latv 



«39 



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CHAPTER XII. 

SCIENCE versus JUDICIAL DICTUM, 

A STATEMENT OF NOVEL CONTENTIONS AND 

A PLEA FOR OPEN-MINDEDNESS.' 

The occasion for this discussion arises primarily {torn the 
fact that when "obscene" literature and art were penalized, 
none of the statmes prescribed any test by which to determine 
the dividing line between that degree of obscenity which is 
criminal and that which is only a matter of bad taste, and 
non-criminal. In harmony with the prc-dominant opinion of 
that time, legislatures assumed, and courts decreed, that all 
humanity have an innate, and uniform, sense of modesty and 
decency, by which we may acquire a direct sense-perception 
of the "obscene" qualities of a book or picture. If this as- 
sumption is true, the judicial superstructure is impregnable. 

If, nn the other hand, that assnmption is untrue, and our 
sense of decency, obscenity, etc.. is a matter of education and 
experience, or is determined by each according to his personal 
sex-sensitiveness, or his emotional and ideational association?*: 
determined by personal habits and moral idiosyncrasies, and 
is variable as these factors are variable : or if it shall develop 
that the only elements of unification generalized in the word 
"obscene" are wholly subjective to the Judge or Juror, or 
other person passing judgment, and not inherent in the book 
itself, then it might follow that all these laws are a nullity for 
want of a statutory definition of the crime, for while ignorance 
of the existence of a law can excuse no one, yet ignorance 
of the meaning of an undefinable criminal law must excuse 
everybody. 

First we will exhibit the judicial dictum that the limits 
and test of "obscenity" are a matter of common knowledge 
and therefore need no statutory definition. This will be fol- 
lowed by the judicial statement of reasons for believing in an 
innate sense of the obscene and of the modest. These may be 

* ReiriMd (ron Tkt Alienitl and Nnavht'M. 

340 



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SCIENCE VSRSUS JUDICIAL DICTUM. 

contrasted with the contrary conduiions of the scientist. The 
issues thus formed will be followed by a statement of some 
of the evidences which support the contrary view of thti 
scientists. 

ABE TESTS OF "OBSCENITv" COMMON KNOWLEDGE? 

Our courts have answered this que^ion in the afHrmative, 
bot they promptly contradict that statement by framing mu- 
tually destructive tests of "obscenity" such as no dictionary- 
maker or other person of ordinary intelligence ever tliouttlit 
of. This is to be expected so long as judges, without hearing 
argument or considering a single factor of the scientific aspect 
of the problem, assume to determine the facts of natural 
science by mere dogmatic, judicial dictum. That is precisely 
what has been done. 

Thus it is said : "The statute does not undertake to de- 
fine 'obscene' or 'indecent.' • • • " The words arc them- 
selves descriptive. * • • • These are matters which fall 
within the range of ordinary intelligence."' 

If the quoted words mean only that each person within 
his fund of common knowledge includes a knowledge as to 
what he personally deems to be "obscene," then the statement 
may be true, biil is certainly unimportant. If, on the other 
hand, it is asserted that common knowledge will enable us to 
know under all circumstances what everyone else must deem 
"obscene" in all conceivable cases, and that all our judgments 
in such matter are alike, then the statement is untrue, and 
because untrue the statute is a nullity on account of the uncer- 
tainty as to what it penalizes. 

likewise the Supreme Court of the United States has 
implied much the same thought as the N. Y. Court when the 
former used these words "Everyone who uses the mails " * 
• • must take notice of what in this enlightened age is meant 
by decency, purity and chastity in social life and what must 
be deemed obscene, lewd and lascivious,"' 

This is true if all humans have an innate or intuitional 
and uniform conception of what the words in question sym- 
bolize. But such empty judicial rhetoric does not help us 
to a solution of the real question, which is: Have we such a 
ttntform, innate or intuitional, immediate sensuous cognition 

■ Pcoplv n. M'>tUr. 96 N. V. 410. 
* U. S. n. Koiro. 1«1 U. S. tt. 



Die iiiuu uy V.» O Oy I C 



OBSCEKE UTEHATURE AND CONSTITUTIONAL LAW. 





of the "obscene," u to preclude the necessity for a stataiory 
definition of thai clement of the crime? 

Another court used these words : "There an in (he hin- 
guagc, words known as words obscene in themselves. It is 
not necessary in order to make a book obscene that such words 
«hould be found in it. • • • A book is said to be obscene 
which is offensive to decency or chastity, which is immodest, , 
which is indcticale, impure," etc., etc.* I 

To those seeking accuracy of description for statutory 
crimes, the use of such mystifying cpithetic tautology is not 
very reassuring as to the clarity of the judicial vision which 
could mistake it for a deRnition. Likewise the appeal to the 
consensus of opinion in "this enlightened age" has been made 
in support of every superstition that has ever paralyzed the 
human intcItccL It would be more reassuring if judges had 
given, or would give, us a test of obscenity, in terms of the 
objective, .sense- perceived qualities of literature, by which 
test alone wc could unerringly and with unavoidable uniform- 
ity, draw the same, exact, unshifting line of partition between 
what is obscene and what is pure in literature, no matter who 
^plies the test. Until they furnish such a test to us, their 
dogmatic assurance (hat "this enlightened age" po^sesses such 
undisclosed knowledge of standards, is not very satisfactory. 
Without such a test, there is no uniform law to control our 
conduct, nor that of our courts or juries. 

The universally implied judicial assumption, that all have 
s uniform, innate sense of obscenity and decency, by which 
we all draw the same line of demarkatJon between the two 
had its origin farther back in our juridical history when such 
problems had a difTcrent aspect, even among scientists. By 
the unavoidable, yet often unfortimate, judicial habit of fol- 
lowing precedent, courts have continued the error long after 
scientists have abandoned the old foundation for it. 

Wc shall presently sec that our judicini notions about 
the innateness of our knowledge as to standards of "obsc»n> 
ity" had their origin deep in the religious sentiments of the 
time when these laws were passed and received their first 
judicial interpretation. Later we will be reminded of the 
great change which has remoulded our religious as well as our 
scientific beliefs, so as to necessitate an abaidonmcnt of the 
premises upon which the courts built their idea of the in- 
tuitive character of our knowledge of the "obscene." 

• t;. K n. nvnnelt, fed. Cmc No. 14S11. 

24a 



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SCIENCE VERSUS JUDICIAL DICTUM. 




TBB COURTS ON THE ORIGIN OF MODESTV. 

First then we will study the foundation of the judicial 
dictum upon the psychologic question which is here involved. 
The most complete judicial vindication of the idea that our 
conception of modesty is innate and therefore uniform in all 
humanity, is found in Ardery vs. Ihe Slate, 56 Ittd. 329, de- 
cided in 1877. Then the court said: "Immediately after the 
fall of Adam, there seems to have sprung up in the mind an 
idea that there was such a thing as decency, and xuch a thing 
as indecency, • • • and since that time, the idea of decency 
and indecency have been instinctive in and. indeed, a part of, 
humanity. And it historically appears that the first most 
palpable piece of indecency in the human being was the first 
public exposure o( his or her, as now commonly called, pri- 
vates; and Ihe first exercise of mechanical ingenuity was the 
manufacture of (ig-lcaf aprons by Adam and Eve, in which 
to conceal from the public gaze of each other their now but 
not then called privates. This example of covering their pri- 
vates has been imitated by all mankind since that time, except 
perhaps by some of the lowest grades of savages. Modesty 
has ever existed as one of the most estimable and admirable of 
human virtues."* 

A similar conclusion is expressed by a Federal Judge. 
"There is in the popular conception and heart such a thing 
as modesty. It was bom in the Garden of Eden, Afler Adam 
and Eve ate from the fruit of the Tree of Knowledge they 
passed from that condition of perfectibility which some people 
nowadays aspire to. and. their eyes being opened, they dis- 
cerned tliat there was both good and evil, 'and they knew that 
they were naked, and they sewed fig-leaves together, and made 
(hcmselvc* aprons.' From that day lo this, civili/ed man has 
carried with him a sense of shame — the feeling that thi-re 
were some things on which the eye — the mind— should not 
look, and where men and women become so depraved by tlic 
use, or so insensate from perverted education, that they will 
not veil their eyes, nor hold their tongues, the government 
should perform the office for them in protection of the social --^ 
compact and the body politic. "• 

This question-begging, by implications made from such 
phrases as "protection of the social compact and the body 

• Ardtnr n. »iur. tn tad. UD. A. I). I«7T. 

• U. S. n. Hiiniiin. *i t'irf. Rcii. t!S. A. D. IMl. 

»43 



Die 'El 



.e.cvG0OglC 



politic," we must pass by, as the phrase itself belongs to an agfr 
of outgrown political speculation. So also the outrageously 
absurd assumption that persons may properly be denounced 
as moral degenerates if they have become so insensate to sen- 
sual suggestions that they can view nude humans without 
being ashamed, because not sexually excited nor afraid of the 
judgment of those who are. To many it will seem as though 
the sexually insensate ones are more clean-minded and decent 
than the judge who denounces them. However, in passing wc 
may mention that the same opinion admits that some have 
"blunted sensibilities" and others acitte sensitiveness, ir • i 
which it follows that our sense of modesty, etc., is not alway» 
uniform, nor affords any certainty or uniformity in the en- 
forcement of these laws. 

THB CHANGES WROUGUT BV SCIKKTIPIC fKOGIte&S. 

Since 1877. when the Ardery case was decided, a great 
diange has come to the entire intellectual world. In 1908 
the public press proclaimed that a commission of sctioLirly 
Catholics, appointed by the Pope, had made a report to the 
effect that the books of Moses are not infallible and cannot be 
accepted as being in all respects literally true. Such state- 
ments are particularly weighty when we remember that the 
Roman Catholic Church, in such matters, is so extremely ci>n- 
scfvative as to be often stigmatized as reactionary. 

[n a recent Catholic cyclopedia. Benziger's Library of 
Scienee, the Jesuit Fathers show their accord with the main 
features of the doctrine of organic evolution. No Catholic, 
with even moderate scientific intelligence, has within two dec- 
ades expressed any disagreement with the Jesuit Father, 
Erich Wasman of Luxemburg, when in his work. Modem Biol- 
ogy and the Theory of Evolution, he says: "The theory of 
evolution to which I subscribe as a scientist and a philosopher 
rests on the foundations of the Christian doctrine which I 
hold to be the only true one." Innumerable Catholic scientists 
have similarly expressed acceptance of the scientific doctrine of 
organic evolution.' 

While, of course, there is slill much controversy as to 
detail and incidental matter, it can be truthfully said that as 
between the dogmas of special creation and fixity of typ^ 
and the general features of the doctrine of organic evolutioo, 

* For Koic diMuMlon of tbi* tet. HMckd'i "LoM Wvrdi «■ BattuHrm." 



Dmit:t-i:t;vV,..»( 



SCIENCE VERSUS JUDICIAL DICTUU. 

there is no longer any disagreement among educated persons. 

An i» to be expected, the Protestant scientists arc even 
more outspoken tlian (he Catholic in accepting ihe resuhs of 
modern scientific research, and the doctrine of organic evolu- 
tion is now being taught in all the theological seminaries of 
Europe and America. Tlie 5tor>- of creation as related in 
Genesis is accepted everywhere as being a myth or an allegory. 

We may here content ourselves with a single quotation 
showing the present attitude of the great mass of educated 
present-day Christians toward a ready acceptance of new 
statements of scientific truth. Prof. James B. Pratt, of 
Williams College, says this: "It [religion] must forever be 
ploughing off an old shell and growing a new one. The shell 
indeed is important; but woe to the religion which identifies 
its life with its shell, or refuses to part with its shell when it 
has ceased to be a protection and has become a clamping, 
choking incumbrance to the growth of its inner lite. • • • * 
If Christianity today should ideniify itself with the infalli- 
bility of the scriptures, or with the creation according to 
Genesis, or with any of the dogmas of Chnstology, it would 
condemn itself to swift decay."' 

Creation, the fait of man, and the fig-leaf apron, according 
to Genesis, in their literal interpretation arc no longer be- 
lieved to be true by any Christian with scientific education, 
and thus disappears the original foundation upon which rested 
the judicial opinions that humans, in the Garden of Eden, ac- 
quired an innate and therefore uniform sense of the obscene, 
the modest, etc. 

SCIENTISTS ON MODESTY AS AN INSTINCT. 

The judicial dictum that modesty, as innate in man, in- 
duced the concealment of the human form, is not very im- 
portant in itself. However, the discussion of the question is 
▼ery material to the problem under consideration, because the 
evidence bearing upon that issue will illuminate the whole 
subject of the psychology of modesty, and especially help us to 
determine whether or not (within the limit of certainty essen- 
tial to the validity of a criminal statute) "obscenity" is de- 
finable in terms of a book or picture, or is at all a quality resid- 
ing in the thing contemplated, or, on the contrary, whether it 
is indefinable because resident exclusively within and depend- 

( Tht FntMoty of RtlitiCHi Brlitt. itJ. 

345 



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ent Upon the peculiar intellectual and emotional associatiotts 
and predisposition of the contemplating mind. 

The judicial assumption was that mode&ty is innate and 
intuittve, and therefore antedated and induced the use of 
clothing. Now will be quoted the contrary conclusion of 
scientists, that modesty instead of being the cause is an ef- 
fect, a mere artificial, varying and unstable psychologic con- 
sequence, produced chiefly by the wcarinji of clothing. 

Prof. Edward IVestennarck. Ph.D., of Finland. 
Westermarck {Hist, of Marriage, p. 211.,) after a careful 
review of the evidence, says: "These facts appear to prove 
that the feeling of shame, far from being the original cause of 
man's covering his body, is. on the contrary, a result of this 
custom; and that llie covering, if not used as a protection from 
the climate, owes its origin, at least in many cases, to the de- 
»ire of men to make themselves attractive."* 

Prof. Ch. Letourneau, of Paris. 
"In a former work' I have attempted to trace the genesis 
of a sentiment peculiar to humanity — the sentiment of mod- 
esty. It would be inexpedient here to treat the subject afresh 
in detail, but I will recall the conclusions arrived at by that 
investigation. Modesty is par excellence a human sentiment, 
and is totally unknown to the animals, although the procrea- 
tive need inspires them with desires and passions essentially 
identical with what in man wc call love; it is therefore cer- 
tainly an artificial sentiment, and comparative ethnology 
proves that it must have resulted from the enforced chastity 
imposed on women under the most terrible penalties."" 

Geoffrey Mortimer, of England. 
"There seems to be no doubt whatever that clothing was 
Bilopted for warmth and decoration, and not from motives of 
decency. Drapery has always served to inflame sexual pas- 
sion, and some tribes have regarded all garments as indecent. 
Mr. Wallace found the Brazilian Indian woman who put on a 
petticoat almost as ashamed of herself as civilized peopk" 
would be if they took theirs off. Only prostitutes clothe 
themselves among the Saliras, and they dress to excite through 
hiding the bcdy. • * • As Westermarck says: "It is not the 

• n-,]>'nit,l fr4in rih K'l ^f KralTtKblnc. fiycafalhia Stt%^ii. f. IS. S(C 
; Ellii' SlHiiti in iht Piyrhalagy of Stt (Mailnljr) p. 11. 
■ L'Mtvluli** di la Meralf. 
" Ldmiracui. fff-lMiwR of Mtrtictr, S6. 

346 




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fcelinj* of shame that has provoked the covering, but the 
covering thai has provoked the feeling of shame." • • • Its 
[modesty's] origin was not in moralily and a native sense 
of decency, though modesty is now estimated as mora) and 
decent."" 

Prof. Th. Ribot, of Franee. 
"The conditions of its |modcsty*s] origin is little under- 
stood, H. Spencer and. after him, Scrgi, maintain tJiat it 
results from the habit of wearing clothes, which began with 
man (nol with woman) from motives of ostentation and or- 
nament. * * * Besides this special mode of expression [blush- 
ing] modesty shows itself by concentric, defensive movements, 
by a tendency to cover or disguise certain parts of the body. 
The means employed to this end arc of the most various 
description according to race, country or period: Some hide 
the whole body, some the sexual parts only, or the face or 
bosom, some paint the body, or the face. etc. It is impossible 
to dcierminc the exact part played in this diversity by cir- 
cum^^tances. climatic conditions, and the association of ideas, 
compulsion, fashion, imitation, and even change."** 

Charles Danvin. 
Darwin expresses his belief "that self-attention directed 
to personal appearance, in relation to the opinion of olhers," 
and "not to moral conduct" is the fundamental element in 
shyness, modesty, shame and blushing.'* 

Prof. William I. Thomas, of Universily of Chicago. 

"The native assumption that men were a.ihamed because 
they were naked, and clothed themselves to hide their naked- 
ness, is not tenable in the face of the large mass of evidence 
that many of the natural races are naked and not ashamed of 
their nakedness; and a much stronger case can be made out for 
the contrary view, that clothing was first worn as a mode of 
attraction and modesty then attached to the act of removing 
the ciothinR. 

"But while we find cases of modesty without clothing and 
of clothing without modesty, the two are usually found to- 
gether, because clothing and ornament are the most effective 
means of drawing the attention to the person. Sometimes by 

"C^jflm tm HamQii L*vf, by GroHtcy HoftJmn, pp. 17. M. 40, 41 

••R<l>ol. /••y<*ab'tJ of '^ EaM^Mt. tH. 

*Srr*Miw* •/ Smriitui tn Hm surf Amiimtli. pp. Jf5-);7. 

ai7 



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OfiSCENB LITERATUIte AND CONSTITUTIOXAL LAW. 

concealing it and sometimes by emphasizing it. • • • • We 
recall the psychological standpoint that the emotionj are an 
organic disturbance of equilibrium occurring when factors 
diflicult of reconciliation are brought to the attention. * • • 
When the habits are set up ami are running smoothly, the 
attention is withdrawn, and nakedness was a habit in the un- 
clothed societies, just as it may become a babil now in the 
artist's model. • • * When once a habit is fixed, interfer- 
ence with its smooth running causes an emotion. The nature 
of the habit broken is of no imponance. If it were habitual 
for grande dames to go barefoot on our boulevards or to wear 
sleeveless dresses at high noon, the contrary would be em- 
barrassing."'* 

Dr. Paolo Mantegassa, of Italy, 
"I acknowledge that I myself, as the years went by, 
changed the idea I first had of modesty, and which I treated 
in the Physiology of Pleasure. At first it seemed to mc a 
sentiment that rises within us in childhood and youth, spon- 
taneous as egotism, self-respect, love; and then, again, I be- 
came persuaded that modesty is taught first and learned 
afterward; for which reason it is one of those sentiments 
which I term acquired or secondary. * • • • • The animals 
demonstrate to us some forms emanating from modesty. Many 
ot Ihem conceal themselves tn order to offer sacrifice to 
voluptuousness; numerous females sought by the male begin 
by fleeing, resisting, by hiding that which they desire to con- 
cede. And this is probably an irreflective automatic act; it is, 
perhaps, a form of fear, which rises before the aggressive 
requirements of the male ; these flights, these resistances, these 
phantoms of modesty have the scope to excite the female as 
much as the male, and to prepare the soil more suitable for 

fecundation Sherihat ordered the Turkish 

women to cover the hack of the hand, but permitted them to 
expose the palm. The Armenian women of Southern India 
cover the month even at home, and when they go out they 
wrap themselves in white linen. The married live in great 
seclusion and for many years Ihey cannot see their male 
relatives and conceal their faces even from the father-in-law 
and mother-in-law. These two examples, selected from a thou- 
sand that might be cited, suffice to persuade us that acce»- 
soiy and conventional elements are often joined to true mod- 

xprat TbOmM* St* ami SetUly, pp. IDT to tlS. 

248 



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csty whicli, physiologically considered, do not belong to it 
Wc, ourselves, without leaving Europe, find thai Ihc continet 
of modesty are marked in many countries by the various 
fashions, not according to morality or the requirements of sex, 
but according to national mode of dress. He who exchanged 
these conventional elements for modesty could write the great 
psychological heresy, (hat this sentiment had its origin in the 
custom of covering one's self. 

"The sentiment of modesty is one of the most changeable 
tn form and deforce, and we will write its ethical history in th« 
volume which wc will dedicate to the cthnolog)- of love. Thus 
witliout going further than our race and time, we have women 
who would let themselves die rather than subject themselves 
to an examination with the speculum, and we have men of 
great intelligence and lofty pa.ssionft who confess that they 
feel scarcely a shadow of modesty. • • • 

"Modesty is one of the choicest forms of seduction and 
of the reticence of love; it is an extra current of the great 
fundamental phenomena of generation ; it is a physical respect 
of one's self; it is one of those psychical phenomena of the 
highest order. • « • • • If the sentiment of modesty were 
not a great virtue, it would be the most faithful companion 
of voluptuousness, the greatest generator of exquisite joys. 
An ardent thirst and an inebriating bowl ; what joy, but what 
danger of satiety."'* 

To discuss the issue thus joined will be the purpose of the 
immediately succeeding chapters, and these will deal unavoid- 
ably with unusual factors, mainly in the realm of sexual 
psychology, which arc essential to a determination of the 
psychic essence of "obscenity." To the lawyer whose learning 
is limited to a memory-knowledge of judicial precedent, the 
new psychologic propositions to be contended for may seem 
a bit startling. Knowing that the disturbance of long fixed 
mental habits and the disruption of their association with 
intense moral-sentimental ism, usually produces an inhibition 
against the assimilation of the disturbing and disrupting 
argument, I feel it necessary now to devote *ome space to a 
plea for open-mindedness for the considerations supporting 
ttM following proposition: 

■•nw Pkjiititn ef LoM, pp. H to tT. 



H9 



0^<fUz,nt^G0Ogk 



OBSCENE UTERATUU AMS COHSTITUTIONAL LAW. 

STATEMENT OF CONTENTIONS. "ObsccM and 
indtetnt" are never qualities of literature or art, and therefore 
are never a matter of sensory eognition, discoverable by 
unerring and uniform standards inductively derived from ihf 
nature of things, &»(. on the contrary, these qiialHies reside 
always and exclusively in the contcmplming mind, and -t 
merely read into, or ascribed erroneously to, the boob or 
picture. In vnrious tiuiys this will be proven to a demonstra- 
tion. By a critical psychological analysis, it will be shou-n that 
the only unifying element generalised in the word "ob.fcene" 
(that is the only thing common to every conception of obscenity 
and indecency) is subjective, is an affiliated emotion of dis- 
approval, which, under varying circumstances of temperament 
and education, is different in different persons, and in each 
person at different stages of development, and is orouxri^ 
peculiarly and distinctively in each individual, differently from 
other persons, to varying degrees of intensity by each of 
various stimuli, and so has become associated differently in 
different persons with on infinite variety of ever-changing 
objectives, hai'ing not even one common element in objective 
mtlure (in literature or art). 

The before stated contention will be rc-inforced by an 
array of facts of ethnography and sexual psychology, cxhtliil- 
ing thtf great diversity in the foci of indecency and modesty: 
by a psychologic study of modesty itliowitvg that in actual 
practise judgments of modesty arc usually the fear-imposed 
verdict of others and not rational convictions, nor deductions 
made from a uniform standard derived from nature, or 
established by statute; by a study of the uncertainty of the 
moral-test of "obscenity" to show it to be cc|U3lly void of 
definite standards; by an exhibition of the varieties of official 
modesty and of some mutually destructive factors of the 
judicial Icuislation creating tc^ls of "obscenity"; by authori- 
tivc confessions of their uncertainty; and by some illustrative 
applications of the«e tests to exhibit their utter absurdity 

All ihi* is to the point tliat neither nature, common 
Imowledge. science, nor the statute does or can furni»h us 
with such a definition of the crime— such criteria oi gfuilt — 
that it must unerringly fix the same unshi fling line of partition 
between the criminally obscene and that which is innocent, 
when apjilied. no matter by whom, to every book or pictiire in 



aso 



DitjiGency 



SCIENCE VERSUS JUDICIAL DICTUM. 

the broad borderland of the literature of doubtful "purity." 
This fact will be co-ordinated with established legal maxims, 
as indispensable and controlling elements of constitutional 
construction. Although it is not absolutely cs.'tenttal to the 
correctness of my conclusions, [ believe all this to be Inie 
bccau:^c the only element of unification generalized in the 
»"ord "obscene" is not in the quality of a book or a picture but 
exists solely in the contemplating niind. 




STATEMENT OV ISSUE BETWEEN JUDGES AND SCIENTISTS. 

The conflict between the before quoted jndicial dictum 
and the later scientific conclusions, forms the Usues now to be 
investigated. Before marshalling any of the evidence it is 
desirable lo restate that issue of science and again to indicate 
the legal consequences toward which the conclusion should 
lead us. 

We are to determine whether modesty is an innate at- 
tribute of all humans, — a part of human nature itself — and 
therefore a matter within the range of ordinary intelligence 
<«3ulling in uniform judgments by a uniform intuitive stand- 
ard; or whether, if those judgments are not instinctively alike, 
tbcy are so variable and uncertain as to make a statutory 
definition essential to uniformity in the execution of the 
criminal statutes in question, and therefore essential lo the 
constitutionality of the statute. 

In other words, is "obscenity" a matter of sensc- 
cognttion, discoverable by unerring and uniform standards, 
existing in the nature of things, or does it exist wholly within 
the contemplating mind, so that every verdict or judgment is 
therefore dependent, not upon the letter of any general law, 
but in each person according to his personal whim, caprice, 
prejudice, "moral" idiosyncracies, varying personal c\- 
ences and ditTerent degrees of sexual hyper-astheticism or of 
intelligence about sexual psychology? If the latter, then the 
statute is clearly void for uncertainty. These issues of science 
we will now investigate. 

1 am aware how ofTcn.sive .lome of the above claims must 
seem to those who may have given little or no critical thought 
to sexual psycholoCTi s"*! who therefore have not even dreamed 
that such a question could be raised. After this propo- 
sition was Ar«t advanced by me, in a paper before the XV 
Congres International de Medicine, held at IJsbon, April, 1906, 



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OBSCENE LITERATURE AND CONSTITUTIONAL LAW. 

some quasi-scicncisls have dof^atically exprefiscd their emo- 
tional aversion to such a conclusion, but not one has had the 
courage to try to answer the argument. Expert psychologists, 
however, have expressed their agreement with ray conclusions. 
However, the little teapot storms which my proposition raised 
in the minds of a very few pcupie. credited with intelligence, 
again warns me that I am disrupting old convictions, resting 
upon established emotional associations, and that, therefore, I 
cannot hope for an open-mind even in the reader of more than 
average intelligence and that again I must take valuable space 
to plead for intellectual hospitality for my argument. 

A riBA FOR UPEN-MINDEDNESS. 

To this end let me recall the well known anecdote of the 
Royal Society, to whom King Charles II proposed that they 
explain how it came that a vessel of water weighs no more 
after having a live fislj put into it, though it does if the fish be 
dead? Various solutions of great ingenuity were proposed, 
discussed, objected to, and defended. After long bewilder- 
ment, it occurred to some one to try the experiment, and it was 
found that the fact to be explained existed only in the mind of 
the monarch." 

So now, I beg you to be patient with an argument which 
tray prove to you that almost daily we are sending persons 
to a felon's cell, and are gravely discussing certain alleged 
"evils" which the criminal law is designeil to suppress, with- 
out ever seriously inquiring if the facts which determine guill 
exist anywhere except in the imagination of the judge and 
jury who try the accused. 

It was objected to the system of Copernicus, that if the 
earth turned upon its axis, as he represented, a stone dropped 
from the summit of a tower would not fall at the foot of it 
but a great distance to the west, in the same manner as a stone 
dropped from the mast-head of a ship moving at full speed 
does not fall at (he foot of the mast but toward the stem. 
To this it was answered that a stone being part of the earth 
obeys its laws and moves with it: whereas it is no part of a 
ship, of which its motion is therefore indepenilent. The solu- 
tion was admitted by some and opposed by others with great 
earnestness. Tt was not until one hundred years after the 
death of Copernicus that an experiment demonstrated that 



" Fmaai PattiphUii. p. ISS, 



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SCIENCE VEBSUS JUDICIAL DICTUM. 

a stone thus dropped from the mast-head does fall at the foot 
of it." 

Could there be any harm if wc made a scientific inquiry 
to ascertain if all the "obscenity" which we criminally punish 
has any existence outside of the mind and emotions of those 
whose unreasoned predispositions or emotional associations 
are offended ? The laws against imaginary crimes are annulled 
when wc destroy the superstition, if such it is, which is an 
indispensable assumption of the statutes. 

WITCUCRAFT AND OBSCENITY. TWIN SUPERSTITIONS. - 

As I contemplate the difficulty of my present unpopular 
Usic, I am again and again impressed that it is not unlike 
that of a lawyer who should have presumed to appear before 
an English Judge of three centuries ago and -leriously endeav- 
ored to persuade him that there were no such beings as 
witches. There arc many things in common between the be- 
lief in the objective verity of witches and of obscenity. Both 
beliefs had their origin in religion, and now we arc to cod* 
sider if obscenity, tike witchcraft, won't disappear when we 
cease lo believe in it I beg the reader to remember that the 
immediate problem is one of science and not of religioD, 
morals or law. Let us think it over in the calm dispassion of 
the true scientist's quest for truth. 

Fanatical as well as hospitable men and pious judges, 
otherwise intelligent, have affirmed the reality of both witches 
and obscenity and, on the assumption of their inerrancy in 
this, have assumed to punish their fellow-men. It is com- 
puted from historical records that Q.ooo.ooo persons were put 
to death for witchcraft after 1484." The opponents of witch- 
craft were denounced just as the disbelievers in the "obscene" 
are now denounced. Yet witches ceased to be when men no 
longer believed in them. Think it over and see if the "ob- 
scene" will not also disappear when men cease to believe in it 

In 1661 the learned Sir Matthew I laic, "a person than 
whom no one was more backward to condemn a witch with- 
out full evidence," used this language: "That there are such 
angels [as witchesi it is without question." Then he made a 
convincing argument from Holy Writ and added: "It is also 
confirmed to us by daily experience of the power and ener^ 
of these evil spirits in witches and by them,"'* 

A century later the learned Sir William Blackstone. since , 
■'ib'ii.. [., J5« 

■• Ctt. -W»mam. CWrr* tmi Suit." pfi. 317 to »47. 
■■Sec .4iiiMb e/ Witekcrcfl, by Dfakt, pretMC pMC xi. 



DiciiEency V-i* 



OBSCENE LITERATUBK AND CONSTITUTIONAL LAW, 



V 



I 



then the mentor of every English and American lawyer, joined 
with the witch-burners in bearing testimony to the existence 
of these spook-humans, just as our own courts to-day join 
with tlic obscenity- hunters to afBrm that obscenity is in a 
book and not in the reading mind, and that therefore the 
publisher, and not the reader, shall go to jail for being "ob- 
scene. " 

Blackstone said: "To deny the possibility, nay, actual 
existence of witclwraft and sorcery is at once flatly to con- 
tradict the revealed word of God in various passages of both 
the Old and New Testament, and the thing itself is a truth 
to which every nation in the world hath in its turn borae 
testim()ny, either by example seemingly well tested, or bv 
prohibitory laws which at least suppose the possibitity of 
comircrcc with evil spirits,"" 

And yet when men ceased to believe in witches, they 
ceased to be. and so when men shall cease to believe in the 
"obKcne" they will also cease to find that. Obsceniiy and 
witches exist only in the minds and emotions of those who 
believe in them, and neither dogmatic judicial didum nor 
righteous vituperation can ever give to cither of Ihem any 
objective existence. 

In the "good old days," when a few. wiser than (he 
rest, doubted the n-ality of witches, the doubter, if not himself 
killed as being bewitche<l, was cowed into silence by an ava-- 
lanchc of vituperation such as "infidel," "atheist." or "emis- 
sary of Satan," "the enemy of God." "the anti-Chrirt." and 
some witch-finder would get on his trail to discover evidence 
of this heretic's compact with the devil; as is the case with 
obscenity, those seeking to destroy belief in witchcraft were 
accused of seeking to abolish morality, and as a successful 
scarecrow to prove this it was argued by John Wesley and 
others, that to give up wilchcmfl was in effect to give up 
the Bible. Let us not be frij^htened by such conjectural 
morality, but rather inquire boMly and frankly as to the 
objective import and reality of all that we punish as danger- 
ous to society under the name of "obscenity." 

qi;rstion'-iiegging gpitmrts Nor arcuuekt. 

How this attitude toward witchcraft is duplicated in the 
attitude of a large portion of the public toward those who dis- 

■Bltckilonc'* CammrMlarin. ptgr l>9. Edition of lUO. 

3S4 



I 




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believe in the objectivity of "obscenity"! Whether obscenity 
is a sensc-pcrccived quality of a book, or resides exclusively in 
the reading mind, is a question of science, and as such, a le- 
gitimate matter of debate. Try to prove its non-existence by 
the scientific method, and the literary scavengers, instead of 
answering your argument by showing the fallacy of its logic 
or error of f.ict. show their want of culture, just as did the 
witch-bumcrs. They tell you that you arc (quoting from Mr. 
Comstocic) "either an ignoramut or so ethereal that there U 
no suitable place on earth [or you," except in jail. They fur- 
ther hurl at you such unilluminating epithetic arguments as 
"immoral." "jmul-dealcr," "moral-cancer planter," etc., etc. 
Such epithets may be very satisfying to undeveloped minds, 
but they will not commend themselves very highly to any 
person wishing to enlighten his intellect upon the real ques- 
tion at issue. Again we say : This it, a matter of science, 
which requires fact and argument and cannot be disposed of 
by qucM ion-begging villification. It is a regrettable fact 
that the "moral" majority is still too ignorant to know that 
tucb question-begging epithets when unsupported are not 
argument, and its members are too obsessed with sensual 
images to be open to any proof against their resultant "ob- 
Bccrc" superstition. 

Tliink it over and see if when you cea«e to believe in the 
existence of "obscenity," you must not also cease to find it. 
If that be true, then it exists only in the minds and emotions 
of those who believe in the superstition. Empty your mind 
of all i<Ieaiional and emotional assuciatiuns which the mis- 
called "pure" people have forced into your thoughts. Hav- 
ing done this, you may be prepared to believe that "unto the 
pure .ill thing* arc pure; bnt unto them that are defiled and 
unbelieving is nothing pure: hut even their mind .and con- 
science is defiled."" Not till thus cleansed can you join in 
these word<: "1 know, and am persuaded by the I-/>rd Jc<».*. 
that there is nothing unclean of itself, but to him that estcem- 
cth anything to be unclean, to him it is unclean,"*" 

TiiK jtmici.xL KPiTHertc arcuuent. 

The courts are more refined, though not more argumen- 
tattve or convincing, in their manner of denouncing dissen- 

"■ni«».i-ii. 
"Roauw t*. It. 

ass 



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OBSCENE UTERATUBE AND CONSTITUTIONAL l-AW. 

tcrs. The judicial formula is this : "When such matters are 
said to be only impure to the over-prudish, it but illustrates 
how familiarity with obscenity blunts the sen sibi lilies, de- 
praves good taste, and perverts (he judgment."" Again we 
ask for fact and argument, not question-begging dogmatism. 
The statute furnishes no standard of sex sensitiveness, nor is 
it possible for any one to prescribe a general rule of judg- 
ment by which to determine where is the beginning of the 
criminal "blunted sensibilities," or the limit of "good taste," 
and the law-making power could not confer this legislative 
authority upon a judge, though in these cases all courts are 
unconsciously presuming to exercise it. 

Furthermore, it is not clear that "blunted sensibilities" 
are not a good kind to be encouraged in the matter of 
sex. Who would be harmed if all men ceased to believe in 
the "obscene," and acquired such "blunted sensibilities" 
that they could discuss matters of sex — as we now discuss 
matters of liver or digestion — with an absolute freedom from 
all lascivious feelings? Why is not thai condition preferable 
to the diseased sex-sensitiveness, so often publicly lauded 
when parading in the verbiage of "purity?" If preferable, 
and so-called "obscene" literature will help to bring about 
such "blunted sensibilities," would it not be better to encour- 
age such publications? It requires argument and fact, rather 
than "virtuous" platitudes, to determine which is the more 
healthy-minded attitude toward these subjects. I plead for 
scientific research, not the bnite force of blind dogmatism and 
cruel authority. Let us remember that "in scientific inquiry 
the ability to weigh evidence goes for much, but facility in 
declamation (and vituperation] goes for little."" 

If, in spite of the argumecit by vituperation, a person 
refuses to submit "with humble prostration of intellect" to 
the demands of moral snobbery, he is cast from the temple of 
"good society" into jail. Then the benighted act as though 
by their question-begging epithets, or jail commitment, they 
had solved the scientific problem which is involved. Let us 
examine if it is not as true of obscenity, as of every witch, that 
it exists only in the minds of those who believe in it, 

FEAR-INSPIRED AVOlnANCE OF THE ISSUE. 

There is another particular in which the controversy 
over witchcraft resembles the controversy concerning the 

•SI ffd, Rrp, IN, 

"FlikCi Catwiii fUteuphy, *. t. p. ITS. 

>56 



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.SCIKNCe VERSUS JUDICIAL DICTUM. 

suppression of the so-called "obscene." The earlier op- 
ponents of witchcraft always deemed it mo^t important to 
anticipate and defend themselves against the influence of 
question-begging epithets, such as "infidel" and "atheist." etc. 
So we find them always explaining that this is unjust because 
they do not really deny the being and existence of witches, 
but controvert only their alleged mode of operation. Thus 
John Webster, in 1677, defends the whole class of anti-witch- 
mongers by argument.'^ of which the following is a sample: 
"If I deny that a witch cannot fly in the air, nor be trans- 
formed or transubstantiated into a cat, a dog, or a hare, or 
that a witch maketh any visible covenant with the devil or that 
he sncketh on the bodies, or that the devil hath carnal copu- 
lation with them, I do not thereby deny either the being of 
witches, nor other properties that ihcy may have, for which 
they may be so-called: No more than if T deny that a doj 
hath rufiibility (which is only proper to a lion) doth it follow 
that I deny the being of a dog."" 

Similar to this is it with the opponents of the censorship 
of obscenity. Every little while we have an explosive pro- 
test against the suppression of some book or work of art, btit 
these moral heretics always hxiien to explain their firm be- 
lief in "obscenity" as a quality of other l>ook,s or pictures, but 
they protest that it does not exist where the censor or court 
thought. They firmly believe ihat "truly obscene literature" 
ought to be suppressed, but they assert that a great blunder 
has been made in suppressing the particular book in which they 
are unable to discover any obscenity. They hasten to ap- 
prove Ihc arbitrary power conferred by a criminal statute 
which fails to furnish the criteria of guilt, but complain that 
the arbitrary power has been abused. They like a govern- 
ment by the lawless will of men rather than a government j 
by officials who are erjually subjected to the law, but they 
prefer it should be their own lawless will and not that of an- 
other with different ideals that should govern. 

As for me, I am not content to protest merely against the 
abuse of arbitrary power; I want that power itself destroyed. 
I am not content to deny the mode in which witches and ob- 
scenity are alleged to impair the morals of humanity. I de- 
mand that a searching and fearless inquiry be made as to the 
objective reality and essential characteristics of obscenity as 
well as witches. All this is said not by way of apology, but 
as a plea for open-mindedness for what follows. 

■rrtr DitfUytitt ffSvffriti Wiuhffi. v- tO. 

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CHAPTER Xni. 

ETHNOGRAPHIC STUDY of MODESTY and 
OBSCENITY. 

SYLLABUS of CONTENTIONS: TMt fthnographic 
facts, a few of which are hemmik prtsenitd, shtnv that thert 
is not singU clement of objective nature which is a constituent 
factor of every conception of either modesty or obscenity. 
Thus it will be proven that the only nnifying element common 
to all conceptions of modesty or of obscenity must be subjective 
— mitsi be in the miiid of the contemplating person, not in ('■■' 
Hang eonlemplaied. Expressed in popular English, the 
proposition is this: All obscenity is in the viewing mind, not 
in the book or picture. Since "obscene" does not generalise 
(my fact of objective nature, it becomes impossible to define 
it in terms of the qualities of a book or picture, or in any 
terms whatever that furnish a certain or uniform standard, 
the application of which compels such uniformity of judgment 
that every one can, with unquestionable certitude, delerfiiim- 
in adi'ance just what must be the judgment of every court or 
fury as to the obscenity of any given book or picture. Later, 
it will be argued that because of this uncertainty the statute 
is Wiconslitulional. 

THE ETHNOGRAPHIC PACTOHS. 

Perhaps it is best to begin our study of modesty and 
aodity with a statement of conditioRii in ancient Greece 
when its civilization had reached that high place which, in 
tome respects, we have not yet excelled. In all that follows 
we are always to bear in mind that we are inquiring into the 
innatcness and uniformity of the human sense of modesty 
and obscenity, to see if it is possible to know from the mere 
reading of the statutes penalizing "obscene, indecent, filthy 
or disgusting" books or pictures, what conception of mod- 
esty, or what kind and degree of sex -sensitiveness, detemiincft 
what is prohibited. 

In Greece, "it was lawful in some cities for courtesans 




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CTHNOCXAPHIC STUDY OF UODKSTY AND OBSCBNITY. 

to wear light, tran.sparent garments; but at Sparta, as may be 
imagined, the reverse was the rule, semi-nudity being the 
badge of virtuous women."'* 

ThLi is further illustrated in the fact that in their athletic 
games and dances the virtuous maidens appeared publicly 
in the nude and none were sufficiently polluted with prurient 
prudery to criticize. On this subject the Rev. John Potter, 
late Archbishop of Canterbury, has this to say: "As for the 
virgins appearing naked, there was nothing disgraceful in it 
because everything was conducted with modesty, and without 
one indecent word or action. Nay. it caused a simplicity of 
manners and an emulation of the best habit of body ; their 
ideas, too, were naturally enlarged, while they were not ex- 
cluded from Iheir share of bravery and honour. Hence they 
were furnished with sentiments and lanfniagc such as Gorgo, 
the wife of Leonidas, is said to have made use of. When a 
woman of another country said lo her: 'You of Lacedaemon 
are the only women in the world that rule the men,' she 
answered : 'We are the only women th-it bring forth men,' "** 

Among the native Mexicans, who in many respects had 
attained a higher civilization than their Spanish conquer- 
ors, it was found, in and before the 17th century, that the 
maidens went naked and only those who bad parted with 
■virginity covered the sexual parts.** 

KtnnTY AND MODESTY AMONG PRIMinVK reOPLE OF MOKE 
RECENT TIMES. 

Certain Mohammedan women who can easily be induced 
to expose their naked bodies to the male gaze arc most per- 
sistent in their refusal to uncover their faces. Chinese women, 
who are not shocked by the exposure of the sexual parts, 
would have their modesty offended lo quite an unbearable 
degree if compelled to expose their naked feet, even to one 
of their own sex. There are tribes who wear but little cloth- 
ing, but who consider it "indecent" to eat in each other's 
presence, and even members of the same family turn their 
backs toward each other during meals. Among the Japanese, 
where women perform the national dance in nudity, it was 
found at tlie Jubilee Exhibition at Kyote that disgust was 
provoked by a painting of a naked woman, though in nature 
nudity was in no way offensive to them. In Lapland 

«V. 1. Otylf* MutonnJ anJ C'ltinil Putiaiiary. Ttl EdiHin a( in4. 

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woman who would prostitute themselves cheaply, will not 
lor a large fee expose themselves before a camera. The 
well-bred African negress is most anxious to conceal her 
breasts in modesty, and exhibits shame even when discovered 
Buckling her babe. Many civilized women arc utterly in- 
different to (his, as one may see tn the parks of any large city. 
So also the Arabs, who are pederasts, yet refuse to exhibit 
their nude bodies. In several tribes, it is as with the Naga 
women, who cover only their breasts. They declare that it 
is absurd to cover those parts of the body which every one 
has been able to see from their birth, but it is different with 
the breasts, which come later, and arc therefore to be covered. 
Some primitive people, who unhesitatingly go about naked, 
still conceal themselves during copulation ; others indulge 
openly and are not in the least affected by publicity.** If the 
tests of obscenity, decency and modesty are a "matter of 
common knowledge," why such varying conceptions, and 
where is the statutory test of "obscenity" which informs us 
as to which of the foregoing conceptions of modesty wu in- 
corporated into the statute? 

In several countries, the consummation of the marriage 
by coitus in public is a part of tlie ceremony.'" .^mong the 
Otahcitans, even recently, a girl is initialed into the sex- 
experience under the direction of a priestess as a solemn re- 
ligious ceremony and in the view of a thousand. The queen 
gives to her and her companion, publicly, instructions as to 
Ihe proper manner of its consummation. This is done with 
solemnity and prayer and without anything like either the leer 
of our stable boys or the blush of our prudes." 

Among some peoples modesty forbids the exposure of 
the male organ of generation while permitting complete 
female nudity, and among others the conditions are reversed. 
From Australia it is reported that women who did not hesi- 
tate much at exposing themselves tn utter nudity, yet with- 
drew to a secluded place to remove their scant covering. 
Among some East African tribes the sentiment of modesty 
seems to center about the menstrual period. The Samoyed 
women for two months after marriage conceal their faces 
from their husbands and only then yield to their unbraces. 
In some places women have been allowed <o go naked until 

>eilli' UoSfitv, md BtbtV* IComfii Undf SaetaUim, II, olinf Bacbolea. 
"KlliV Madiily. p. IT. »nil olhm. 
"WfMrap'i JVimMm Sumbelum. pp. IMO. 

ate 



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ETHKOCRAPHtC STUDV OP UODeSTV AND OBSCeNITy. 




tbey were married and required to wear clothes after mar- 
litgC Among the Montana Indians, where the women readily 
prostitute themselves for a small consideration, they often 
exhibit extraordinary sensitiveness to a physician's examina- 
tion. The Adamanes women "are so modest they will not 
renew their fig-leaf aprons in the presence of one another." 
in Masai it is considered as disreputable to conceal the phallus 
as it is to display it ostentatiously. This will to some seem 
a very healthy-minded attitude, which stands in great con- 
trast to the following example of modesty. 

"Native women of India have committed suicide rather 
than submit to examination by slate surgeons under the 
English Government" (under a law regulating prostitution].** 

"The Hindoos have a species of adultery, which with us 
would be considered mere flirtations: First, if a couple wink 
or smile, converse together in an unfrequented pUce, or 
t>athe in the same pool; second, if a man sends sandtrwood, 
victuals, drink or other presents to a female; the third sort 
seems the most serious, namely, when a man and woman 
steep and dally on the same carpet, kiss and embrace, and 
then seek some retired place, the woman saying nothing all 
the while. The punishments prescribed by the shastcr for 
adultery are too barbarous for enumeration."** 

"It is related by Dr. Toumefort that in a Turkish harem 
he was allowed to sec only (he arm of a sick female pro- 
truded through a screen, without further opportunity for 
determining the nature of the malady."*' 

We arc in the habit of denouncing Turkish polygamy 
as indecent and an ailment in its favor probably could not 
be sent through the mails. Yet these Turks outdo us all 
when it comes to prudery. Where does the statute furnish 
the standard nf judgment as between these conflicting 
pruderies ? 

VARIETIES OF CHRISTIAN MODESTY. 

Here we will exhibit a variety of differing conception* of 
modcsiy as ihey are found among Christian people. The 
purpose is always to be borne in mind, and it is to show: 
First, that no particular conception, standard or focus of 
modesty is a part of our human nature (innate in us), and 
MCond, that therefore in each individual his own notions of 

••Vmmaittd. Dr. Harr Walbtr, p. Uk. 
'•H'tmut. fvt »»i e^ntnt. p. tt*. 
■IfOTM*. fu) v^ Prutm. f >■- 

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modesty are determined by his educzted emotional and 
ideational associations and ihe degree ol his sexual hypcr- 
a:Mhetici.sni. Keeping thi.i purpose in mind, let us review the 
historical evidences. 

Among the early Christian Fathers we find many evi- 
dences that bundling, often in nudity, was a widespread 
custom, even among monks and nuns vowed to chastity. 
The practise always resulted in suspicion and no doubt quite 
frequently in something more real. Chrysostom, Jerome and 
Tcrlullian all write of it. 

The Rev. Dr. RufTner, after quoting these fathers and 
other evidences, summarized his conclusions as follows: 
"The practise of unniarried men — some of them cler^men — 
and consecrated virgins lying together, seems to have pre- 
vailed to a considerable extent even at this early period : but 
then the parties professed that there was no harm in it, seeing 
that there was all the while a chaste familiarity, a purely 
spiritual conjunction."*' 

"Some confessors, like Robert d'Arbissell (and the same 
has been said of Ardhelm, the English Saint, who lived be- 
fore the conquest), have induced young women to lie witft 
them in the same beds, giving them to understand that if they 
could prove superior to every temptation and rise from the 
bed as they went to it, it would be in the highest degree 
merilorious."" 

Writing on the earlier period, Gibbon states this : "The 
primitive church was Blled with a great number of persons of 
cither sex who had devoted themselves to the profession of 
perpetual chastity. A few of these, among whom we may 
reckon the learned Origen. judged it the most prudent to dis- 
arm the tempter [by self-castration]. Some were insensible 
and some were invincible against the assaults of the flesh. 
Disdaining an ignominious flight, the virgins of the warm 
climate of Africa encountered the enemy in the closest en- 
gagement ; they permitted priests and deacons to share their 
bed, and gloried amidst the flames in their unsullied purity.'*** 

Washington Irving tells us of the bundling habit in New 
England as "a superstitious rite observed by the young peo- 
pie of both sexes, with which they usually terminated their 

"Rurtnci'a FVhrti tt iHf Drirri, MT-IIl-MI-ttB: Gibboo'i llitt^rf *f 
CfcrutiriHiiy. p. lAl. (nd aulhoriiifi eiicd. 

"A fartphtut en Hiittna f laetlleixtim, p. MB. 
"Cibbon'i Hitlers ■/ Ckrtittaiuly, p. 161. 

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festivities, and which was kq>t up with religious strictness b^ 
the more bigoted and vulgar part of the community."" 

The practise was permitted by the Puritans an<l found 
defenders among the clergy as a custom that prevailed "among 
all classes, to the great honor of the country, its religion, and 
ladies."*' 

Tolstoi tells UH that in parts of Christian Russia young 
people, during the years of betrothal, spend their nights to- 
gether without losing their virginity, ^o him it illustrates 
tlie blessed possibility of spiritual Communion, untainted 
by fleshly desire." 

If memory serves me, Tacitus informs us that in his time 
(he Germans customarily went naked and that their morals 
were exemplary compared with those of the Romans. A recent 
author informs us that: "The shirt began to be worn [in 
Germany] in tlie sixteenth century. From this fact as well 
as from the custom of public bathing, wc reach the remark- 
able result that for the German people the sight of complete 
nakedness was the daily rule up to the sixteenth century," 
At their public dances exposures were quite unrestricted." 

We find several times among Christian sects that pro- 
miscuous nudity was made a virtue and duty among them. 

One such sect existed in the second century. Theodoret, 
Baronius Danacus and St. Epiphaneus all mention Iheni. 
as conducting their devotional exercises in complete m>dity. 
and, according to some, those were expelled from the 
congregations who did not remain continent. Upon this last 
there is disagreement." 

During the earliest days of Christianity women were 
baptized quite nude and by men in the presence of men, 
their bodies being afterward anointed with oil by the priests. 
One of the earliest chtsms in the church arose from the pro- 
test of women ajjainsl this practise, and a demand that they 
be allowed to baptize their own sex and the opposition of 
priests to that demand.** 

-r.tkirk^btctrr Hilt, af N. Y. 4 Am. td. f l»: StOt^ BftnUmg, p. M. | 

-Sol*!' Bmmihnt. pp. t^-n. 

»Dit SnmlU fratt. M^l". 

•RudfCk. CtKl>'i*li trt rfrmthtki SiMUMM, p. SN. 

•>V. 1, Btrte't Duurttr,. pp. Iio-llt. rdilion at 1T14, and dMlaat: L 
Bcckrlhorn'i Src'tt Stmitn tf All Afi '"it CrmnMtt, op. ftt'M; Cmft, U'omam, 
CMmnk and Stalt. »; Ttra FuBii on ikr WsriUp «/ firiafiu. pp. ITl-lTl. tai 

UMhoftllCL 

■Gair. IfPMM. Chmith tmi S$Mt. *!». dtina Wiitr'i Hirt. e/ il.* CMm{m 
KrIit'Om ■•> ^. D. ZOO. pp. 21. 3S4. itSt BrOMn'i f'ferbSnity ol M*mtind. vol. i. 
MMM. *cl. (: AnilnUi Pl-iletifUtal Dw«MMr>. FO*'* HuMry af Criatt t» 
mmglmi. and dlallow. 

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Ciampini gives a large pUlc representing the baptism 
of Agiliilf and Theodelmda, King and Queen of the Longo- 
tnrds, A. D. 591, where they both appear naked in the font, 
with nothing but their crowns on, and the water is poured 
over their heads from a pitcher.*' 

Catherine, the first wife of Peter the Great, was received 
into the Creek Christian Church by a similar rite. New con- 
vene to that church are plunged three times, naked, in 1 
river or in a large tub of cold water. Whatever is the age or 
sex of the convert this "indecent ceremony is never dispensed 
with. The effrontery of a pope (priests of the Greek Church 
are thus called) sets at defiance all the reasons which decency 
and modesty never cease to use against the absurdity and ifit- 
piidcnce of this shameful ceremony."" 

The Beghards became a distant offshoot from the Fran- 
ciscan Monks in the 14th century, for the purpose of practis- 
ing still greater austerities. The Beghards and another order 
known as the Beguines came under the influence of the Breth- 
ren and Sisters of the Free Spirit. Of those we have some 
very interesting accounts. Mosheim says: "And they alone 
were deemed perfect by these fanatics and supposed to be 
united to the supreme being who could behold, without any 
emotion, the naked bodies of the sex to which they did not 
belong and who. and in imitation of what was practised be- 
fore the fall by our first parents, went entirely naked and 
conversed familiarly in this manner with males and females 
without feeling any tender propensities of nature. Hence it 
wa.s that the Beghards (as they were nicknamed) when they 
came into their religious assemblies and were present at the 
celebration of divine worship, appeared without any veil or 
covering whatever."" 

The late William Hepworth Dixon, once the distin- 
guished editor of the London Athrnaeutn, gives us a most in- 
teresting account of these people." 

In the 13th century they became known as the Adamites 
or Picards. Under the leadersliip of Picard. if not before and 
if not in other branches, the ascetic restraint of continence 
was abandoned under the doctrine of perfectionism.'^ 

"Lund)'. Cli*iiltr on Uipltam. Msuvmriiral Cttriitianity, tlO. 

Inm Wtman. Cl>»rffe and S'aC. US, 

'HMhcin hetl. Hi-. p.lT7. B*I1. cd. liU. 

••XfM$*al H-4tTi. Oitp. 14. Sr* also Lft't Hlil. «f (*t ImmMMh. tIMtT. 

"i. BijrU't Hiiltrittl aiid Crititol Didinfury, p. MA. 

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At Amsterdani in 1538 a dozen religious zealots, men 
and women belonging to the Anabaptists, went out u]>on (he 
streets in nudity, and "they did not so much as leave a ribbon 
upon their heads to keep their hair lied."" 

Within the past two decades we have seen a Russian 
Quaker sect of Canada called Doukhobors makinfr pilgrim- 
ages in large numbers, both men and women being in entire 
nudity." 

MODESTY OF ANOTHER EXTREME. 

"in the rules laid down by Augustine, he ordains that no 
one shall ever steadfastly fix her eyes upon another, even of 
the same sex, as this is a mark of immodesty."*' 

Amnion and his wife, it is reported, renounced the secular 
life and inhabited one common ascetic apartment in the 
mountains of Nitria. Uneasiness finally prompted the bride 
to address her husband as follows: "It is unsuitable for yon 
who profess cha.Mity, lo look upon a tvotnan in to confined a 
dtoeliing. Let us, therefore, if it is agreeable to you, perfonn 
our exercises apart." He concurred,** 

Ligouri" in prescribing the requirements of modesty, 
which some people in "good society" still follow, while others 
sneer at it, *ays: "A religious must practise modesty in sitting 
.... she must avoid every slothful posture and must abstain 
ffom crossing her feet and putting one leg on the other."** 

In Rome, at one period, "their sexual delicacy was in- 
deed extreme, if the anecdote of Manlius be only moderately 
authentic. This patrician and senator had only inadvertently 
saluted his wife in the presence of his daughters, and for this 
indulgence he was by the censors accused of indecency. 
After grave deliberations on the corruptive ten<lency of such 
open osculation to the rising generation, they struck him off 
the list of their order."" 

In a publication at the end of the 17th century, this state- 
ment is foumi; "Tlii* world too much allows nakedness in 
women. • • • • The faulty abuse is strengthened 

*■«. Biyk'i Hiiitfni-al and Cntxti Mfrimary, US 

tlludf'm A Ptcuhar PttfU. 1«1. 

"iluAj't Eoittrm li*»aiUeiita, p. M. 

'•Dtj'x Uanasilit lulifaliMu. p. S. 

"In T'ut Sr»" 'I Cktut. L1i*t» Vltl. S(«*l l-II. 

■^■r** Mnoittc Imtnitiiiom. p. IM, 

-IVtmum. Pit »mt prtitmt. *t iMky'* HUt. */ K»r»Hm U^rtb. w % 



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through a long use. and now passed into a custom so gcnieral 
that it has become common almost to all women and nuiids 
o( all sorts of condilions. • • • » Even at the foot ^of 
the altar and in the very tribunals of penance." they car.^ 
"half-naked"! The protesting priest begs that they "at 
least make some difference betwixt the house of the Loi-d 
• " • * and those which arc profaned by the libcrtinisijit 
of the age."" 

In the portraits of that peno<l we find ladies of quality 
freely exposing their entire bosom. A modified remnant of 
this custom is found in the evening dress of our fashionable 
women, by which some penple are still shocked. Now. then, 
what is the degree of statutory sexual delicacy which limits 
criminality? Where between the wai»t and the face, docs the 
statute draw the line beyond whidi nudity ofTcnds modesty? 
Where is the statutory test of criminality which would pro- 
tect the accused against such extreme prudery, and why is 
there any such; is "common knowledge" upon the subject 
suflkicntly uniform to make urmecessary a ^itatutory defint- 
lipn of "obscene"? 

At the close of the iBth century, we find a book written 
"Chiefly on tlu Profligacy of our Women and its Causes." 
As showing what, in the opinion of that author, "tended to 
deprave morals," we may extract a few sentences. He 
says: "For the same reason that public schools arc proper for 
boys, they are unfit for girls. • * * Though a girl's ideas 
be pure as angel's on her entrance into a boarding school, she 
cannot remain there any lime without being as knowing in 
the ways of pollution as any nymph in the King's palace." 
Further on our author says : "I cannot bear to sec a woman 
of fashion sit down to a harpsichord at a public concert and 
hear her clapped by strangers on finishing her tune." The 
reading of fiction is denounced because "novels are full of 
warm descriptions run entirely on the subject of love," etc. 
Upon the subject of having a male physician attend upon a 
woman during child-birth, this author says that "the prac- 
tise is repugnant to every idea of modesty, delicacy and 
decency. • * • • To suppose any more an necessary 
than what can be taught by experience, would be to arraign 
the goodness and wisdom of the .Almighty. • • • * 
Infamous as the adultress is, her crimes admit of extenuation, 

■M /wl tnd StuninHt Ktfrtliriut»n of Natfi SrratU. tonrf. A. t>. inv 

366 



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ETMNOCKAPUIC STUDY OF MODGSTy AND OSSCENITV. 



«nd she seems pure when balanced a^oiiuf Ike pretender to 
modesty who sends for a doctor lo be digitated. Shame on so 
abandoned a practise," etc., et<^^ 

Merc then is a man who admits that th«y are "pure," and 
who tells us that to educate women, to allow them to play 
musical instruments in public, and lo have a male physician 
■Hend a woman during parturition, or to arf;uc that special 
skill is desirable at such times, all tend to deprave the morals 
of those whu arc open lo <.uch influences: and elsewhere he 
•ays that not one is beyond such influence.*' On these and 
succeeding pages this extremely modest author strangely 
enough writes about the means oE inducing sexual excite- 
ment that which would now be punished as criminally 
"obscene." 

This same author" expresses opinions about the sinful- 
ness of adultery which are logically peculiar, but in practise 
have the endorsement of very, very, very, many men : 
"When a married man commits it [adultery), he throws out 
no defiance to the world — for the worhl thinks too lightly of 
the olTenae. He makes no sacrifice of character. A man 
cannot sink to the level with an adultrcss till he has forsaken 
his post in battle. Courage is the male point of honor — 
chastity the female." 

As portrayed by an epistle supposed to have been writ- 
ten by Qemeni of Rome, one of the early Christian ideals of 
modesty was indeed extreme. The brethren and holy sisters 
and maidens must not look at one another nor allow the naked 
hand of one to touch the uncovered hand of the other.** Is 
this conception of modesty a matter of "common knowledge" 
and incorporated in the statute? If not. where and what are 
the statutory criteria of guilt, which exclude it? 

In other places these conceptions of modesty were strange- 
ly blended- "Women will scarce strip naked before their 
own husbands, affecting a plausible pretense of modesty," 
writes Clement of Alexandria, at the close of the second 
century, "but any others who wish may see them at home, 
shut up in their baths, for they arc not ashamed to strip be- 
fore the spectators as if exposing their persons for sale. The 

■•rkMrlifi n tkf Timtl. (A. □. ITTt). pp. U-M-IM.^ Te lb* ume iffKl 
Ht/'MiM n^M'f fry Mtynd and rJM ti*4*»<v t/ tkt fiMfiiw tifon^." L**4. 



/i 



~nt IM and IM. 

■p. r»- 

tibnrj. t- IN. 



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baths are opened promiscuously to men and women. Cyprian 
found it necessary to upbraid even virgins vowed to chastity 
for continuing the custom of promiscuous bathing in the 
nude." For others such promiscuous bathing was the custom.'* 
"When we are told that the monks of the convent of 
Mount Athos accused the monks of the convent of a neigh- 
boring island with falling away from grace because they 
allowed hens [because being of the female sex] to be kept 
within the convent enclosure, we may well believe that On- 
gines and his monks [who castrated themselves] felt that 
they were gradually ascending tn grace when Ihcy submitted 
to this sacrifice."" 

MODESTY AMONG SOME WOBLDLINGS, 

With only a few more illustrations as to the diversity 
of human notions about modesty this essay must be closed. 
Dr. Havelock Ellis tells us of a ballet girl who thought it im- 
modest to bathe in the fashion aistomary at the sea shore 
and cannot make up her mind to do so, though of course, she 
every night appears on the stags in tights."* Which of these 
conceptions of modesty does "common knowledge" compel lis 
to incorporate in the statute? 

"A Chinaman, who lived in England some years since, 
acknowledged that on his first arrival he felt some difficulty in 
restraining himself from rudeness to women if left alone 
with them, and a nun that had been reared in a convent on 
her first escape from it imagined that every man who had 
opportunity would assault her virtue."" 

With the Chinaman, accustomed to nudity, secretivencss 
by the use of clothing induced greater lascivtousncss than 
nudity would evoke. The nun, through perverted educa- 
tion, expected lascivious designs in others when they had no 
existence. 

Krafft-Ebing tells of a person so sex-sensitive that in the 
presence of ladies he thought every expression he made was 
an offense against decency. Thus, for example, he thought 
it very improper in the presence of ladies, married or un- 
marricd. to speak of going to bed, rising, etc.'* May the 

■Ellii'i Piyikalety tf St*. (UodcMr). I» ■nd Itt. 
"Mlff0r> of Cirfumnnen. p. B0, 
^fiytlieitcy ef Stt. (Ueduiy) p. 4T, 
■Woman, Pan and Prtunt. p. 111. 
Of i*M(^Ma Stnalit. Tft. 

368 



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ETHNOCRAPHIC STUDY OP UODBSTV AND OBSCENITT. 

statutory "obscenity" be determined and a verdict of guilt 
Sound by such persons, and if not why not? 

"I have several times observed in hysterical females 
scruples relative to the satisfaction of natural needs, to the 
action of chewing, eating, micturation, defecation, which 
have all come to be regarded as revolting acts, which must be 
dissembled like crimes."*' 

The present law docs not in the slightest degree protect 
one accused of obscenity from the whim and caprice of judges 
or jurors who may be thus afflicted with extraordinary sexual 
sensitiveness. Even the "tests of obscenity" created by jmli- 
cial legislation leave the criteria of guilt just as much in 
doubt. 

By evidences gathered from similar sources it can be 
demonstrated that there is not one single fact of obscenity 
concerning which all humanity is agreed. Even what is to 
us the most revolting "'obscenity" is not so to all persons. 
Every known form of sexual perversion, from sadism, lust, 
murder, up and down, has been credited with the endorsement 
of some god and practised and sanctified by some religious 
•ociety. Those who want proof of the fact need only to make 
themselves fairly expert in sexual psychopathy, and ihen 
study all the facts of sex-worship among the ancient Greeks 
and Egyptians, also the old initiations mto the priesthoods of 
the native Mexican religions, and the sacred snake dance 
among the Moquis. If proof is wanted as lo its expression 
in art, we have it in (he secret Cabinet of (he Museum of Her- 
culanetim and Pompeii and other places. If doubt still re- 
mains it only becomes necessary to get the confidence of aie 
whose sexual impulse has become completely perverted, and 
ask such a one about his shame when indulging only in the 
presence of those who are perverted like himself. 

Within the available limits one can only hint at the 
source and character of the evidence which contradicts the 
judicial dictum upon the questions of science here involved. 
To exhaust the evidence would require a republication of 
volumes of ethnographical research, and most of the litera- 

" MonJ HnatbanAra. ¥*n. Paiktity at nkt SmMiamt, n. M» 



169 



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OMSCIHB LITERATURC AND CnNSTITimOHAL LAW. 

tare upon sexual psychology. The principal booJcs upon thr 
Utter subject are lisled lor further study," 

Additional arguments will be oflfered in the succeeding 
chapters to demonstrate anew the subjective character of all 
that is generalized in the word "obscene" and the consequent 
unescapable uncertainty of the criteria of guilt under the.se 
obscenity statutes. 

"riyKhe^tkn Strtalii by Knill Etrttif. Smuttttf Tkrr»ftui*a » 11*1* 
Mtm l« ytrehoptlhim Srtttijttt ^chtnli Nolimf.- idfrfyttt MtrnftstiUp'ti, \rj Tir- 
mawtky. Stiittti IB r** fi;<*»loii) >/ S*'. bjr Dr. llsTtlock btlii. uid ttpnistlT 
IbM •vlaBc irioui IS "Mudntr " Thu litirMun. tir ohihibaK ihc inlinllc 
*arttf)F of lad *baui ohicti center ihf H-nlimcnti o< inadcBtf. pravt lo ■ ilnnsn- 
Hr*i>oa that »« have no iniiaie frriK of nodcMr. nor ^vf eMBBOn naii'lanto ^ 
which 10 ifXtemin* il% oppmiti, nor any nDifc^fnilT in Ihr idrv which iiciK in ua 
Ihotc enriDLioni of avtialns which conttilutc our conviction that • book or pklurt 
li ebaccDC- 



rjo 




L'lijiiLii 



LIV 



CHAPTER XIV. 

PSYCHOLOGIC STUDY OF MODESTY AND 
OBSCENITY. 

Syllabus of the Argument: Through a study of the 
mental processes by which we acquire the genera) idea sym- 
bolized by the word "obscene", (or its opposite) and of Ihose 
by which we usually [onn a judgment as to the modesty or 
obscenity jn a particular case, it will be redemonstrated that the 
word "obscene" docs not stand for any sense-perceived quality 
of literature or art but is distinguished only by the likeness 
or unlikeness of particular emotions associated with an in- 
finite variety of mental images. Therefore, obscenity is only 
a quality or contribution of the viewing mind — a subjective 
state — which, by synchronous suggestion or prior experience, 
is linked, in the contemplating mind, with the particular mat- 
ter presented by the contemplated book or picture or with tlie 
special conditions under which these are being viewed. When 
this association, thus formed, a.<(serts itself in consciousness 
the subjective "obscene" attachment is erroneously ascribed 
to and read into the objective factor of its conceptual associate. 
All this is only a technical way of telling how the "obscenity" 
of the viewing mind is referred to the book or picture before it. 

As supporting these claims we sec the fact that "ob> 
•eetiity" never has been, nor can be, de.scribed in terms of any 
universally applicable tesl, consisiing of the sense- perceived 
qualities of a book or picture, but ever and always it must be 
described as subjective, that is, in terms of the author's sus- 
pected motive, or in terms of dreaded emotions imagined to 
exist in the mind of some superstitious reader. 

With some knowledge of the psychologic processes in- 
volved in acquiring a general conception, it is easy lo see how 
courts, as well as the more ignorant populace, quite naturally 
felt into the error of supposing that the "obscene" was a 
quality of literature, and not — as in fact it is — only a contribu- 
tion of the reading mind. By critical analysis, we can exhibit 
separately the constituent elements of other conceptions, a* 

2Jl 



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OBSCENE LITKXATURE AND CONSTITUTIONAL LAW. 

well as of our geneni] idea of the "obscene." By a comparison, 
we shall discover Ihat their common element of unification may 
be either subjective or objective. Furthermore, it will appear 
that in the general idea, symbolized by the word "obscene," 
there is only a subjective element of unification, which is com- 
mon to all obscenity, and that herein it differs from most gen- 
eral terms. In the failure to recognize this fundamental un- 
liJceness between different kinds of general ideas, we shall dis- 
cover the source of the popular error, that "obscenity" is » 
definite and definable, objective quality of literature and art. 

THP. PSVCHOI-Or.lC ABfiUUENT. 

A general idea (conception) is technically defined as "the 
cognition of a universal, as distinguished from the particulars 
which it unifies." Let us fix the meaning of this more clearly 
and firmly in our minds by an illustration. 

A particular triangle may be right-angled, equilateral or 
irregular, and in the varieties of these kinds of triangles, there 
are an infinite number of shapes, varying according to the 
infinite differences tn the length of their boundary lines, meet- 
ing in an infinite number of different angles. 

What is the operation when we classify all this infinite va- 
riety of figures under the single generalization "triangle"? 
Simply this: In antithesis to those qualities in which triangles 
may be unlike, we contrast the qualities which are comnwn to 
all triangles, and as to which all must be alike. 

These elements of identity, common to an infinite variety 
of triangles, constitute the very essence and conclusive test* 
by which we determine whether or not a given figure is to be 
classified as a triangle. Some of these essential, constituent, 
unifying elements of every triangle are now matters of com- 
mon knowledge, while others become known only as we de- 
velop in the science of mathematics. A few of these essentials 
may be re-slated. A plain triangle must enclose a space with 
three straight lines; tlie sum of the interior angles formed by 
the meeting of these lines always equals two right angles; as 
one side of a plain triangle is to another, so is the sine of the 
■ngle opposite to the former to the sine of the angle opposite 
to the latter. 

These, and half a dozen other mathematical properties be- 
long to every particular triangle ; and these characteristics, al- 
ways alike in all triangles, are abstracted fmm all the infinite 



?72 




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PSYCHOLOGIC STUDY OF MODESTY AND OBSCENITY. 

different shapes in which particular triangles appear ; and tliese 
essentia) and constant qualities, thus abstracted, arc general- 
ized as one universal conception, which wc sjrmboliie by the 
word "triangle." 

Here it is important to bear in mind that these universal, 
constituent, unifying elements, common to all triangles, are 
neither contributions nor creations of the human mind. They 
are the relations of the separate parts of every triangle to its 
other parts, and to the whole, and these uniform relations in- 
here in the very nature of things, and are of the very essence 
of the thing we call a "triangle." 

As the force of gravity existed before humans had any 
knowledge of the law or its operation, so the unifying ele- 
ments of all triangles exist in the nature of things, prior to and 
independent of our knowledge of them. It is because these 
unifying elemenls, which wi* thus generalize under the word 
"triangle." arc facts of objective nature, existing wholly out- 
side of ourselves, and independent of us, or of our knowledge 
of their existence, that the word "triangle" is accurately 
definable. 

We will now analyze that other general term, "obscene." 
reducing it to its constituent, unchanging elements, and we 
shall see that, in the nature of things, it must remain incapable 
of accurate, uniform definition, because, unlike the case of a 
triangle, the universal element in all that is "obscene" has no 
existence in the nature of things objective. It will then appear 
that, for the want of observing this difference between these 
twu classes of general terms, judges and the mob alike erron^ 
ously assumed that the "obscene." like the "triangle." must 
have an existence outside their own emotions, and, conse- 
quently, they were compelled to indulge in that mystifying ver- 
biage which the courts miscall "tests of obscenity," 

COMMONPLACE FACTORS OF THE PSyCHOI.OGIC ARCtlMEKT. 

First of all. we must discover what is the universal con- 
stituent, unifying element common to all obscenity. Let U9 
begin with a Utile introspection, and the phenomena of our 
everyday life. We readily discover that what we deemed "it*- 
decent" at the age of sixteen, was not so considered at the ag« 
of five, and probably is viewed in still another aspect at tfi< 
ige of forty. 

We look about us. and learn that an adolescent maid has 
her modesty shocked by that which will make no unpleasant 

a73 



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impression upon her after maternity, and by that which would 
never shock a healthy physician. Wc know, also, that many 
scenes are shocking to us if viewed in company, and not in the 
least offensive when privately viewed; and that, among dif- 
ferent persons, there is no uniformity in the added conditions 
which change such scenes to shocking ones. 

We see the plain countyman shocked hy the decollete 
gown of onr well-bred society woman ; and she. in turn, would 
be shocked into insensibility if, especially in the presence of 
strange men, she were to view some pastoral scenes which 
make no shocking impressions upon her rustic critic. The 
peasant woman is most shocked by the "indecency" of the so- 
ciety woman's bare neck and shoulders, and the society woman 
is shocked most by the peasant woman's exhibition of bare 
feet and ankles, at least if they are brought into the city 
woman's parlor. We sec that women, when ailment suggests 
its propriety, quite readily undergo an unlimited examination 
by a male physician, while with the sexes reversed much 
greater difliculty would be experienced in securing submission. 
This not because men are more modest than women, but be- 
cause other social conditions and education have made them 
differently modest. 

It would seem to follow that the universal qualities 
which we collect under the general term "obscene." as its con- 
stituent elements are not inherent in the nature and relations 
of things viewed, as is the case with the triangle. Taking 
this as our cue, we may follow the lead into the realm of 
history, ellinologj-, sexual psychology and jurisprudence. 
By illustrative facts, drawn from each of these sources, it 
will be shown to a demonstration that the word 'obscene" 
has not one single universal, constituent element in objective 
nature. 

Not even the sexual element is common to all modesty, 
shame or indecency. A study of ethnology and psychology 
shows that emotions of disgust, and the concept of indecency 
or obscenity, are often associated with phenomena having no 
natural connection with sex. and often in many people are 
not at all aroused by any phase of healthy sexual manifesta- 
tion ; and in still others are aroused by some sensual associa- 
tions and not by others; and these, again, vary with the indi- 
vidual according to his age. education and the d^ree of his 
sexual hyperaestheticism. 

^74 



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PSYCHOLOGIC STUDY OF UODESTY AND OBSCBHITY. 
HVPEII.flSTHtmCISM ANO BnttCATtOK. 

Everywhere we find those who are abnormally sex- 
sensitive and who. on that account, have sensual thoufihts and 
(eelingit aroused by innumerable images, which would not thus 
affect the more healthy. These diseased ones soon develop 
very many unusual associations with, and stimulants for, their 
sex-thought. If they do not consider this a lamentable condi- 
tion, they an apt to become boastful of their sensualism. If, 
on tlie otlier hand, they esteem lascivious thoughts and images 
as a mark of depravity, they seek to conceal their own shame 
by denouncing all those things which stimulate sensuality in 
themselves, and they naturally and erroneously believe that 
it must have the same effect upon alt others. It is essential to 
their purpose of self-protection that they make others believe 
that the foulness is in the offending book or picture, and not 
in their own thought. As a consequence, comes that persist- 
tnce of reiteration, from which has developed the "obscene" 
3uper.<vtition, and a rejection — even by Christians — of those 
scientific truths in the Dibic, to the effect that "unto the pure 
all things are pure," etc. We need to get back to these, and 
reassert the old truth, that in literal fact all genuine prudery 
is prurient. 

The influence of education in shaping our notions of mod- 
esty is quite as apparent as is that of sexual hyperaesthesia. 
We see it. not only in the different effects produced upon differ- 
ent minds by the same stimulants, but also by the different 
effects produced upon the same person by different objects 
bearing precisely the same relation to the individual. When 
an object, even unrelated to sex, has acquired a sexual associa- 
tion in our minds, its sight will suggest the affiliated idea, 
and will fail to produce a like sensual thought in the minds of 
those not obsessed by the same association. 

Thus, books on sexual psychalof^y tell us of men who are 
so "pure" that they have their modesty shocked by seeing a 
woman's shoe displayed in a shop window ; others have their 
modesty offended by hearing married people speak of retiring 
for the night ; some have their modesty shocked by seeing in 
the store windows a dummy wearing a corset; some are 
shocked by seeing underwear, or hearing it spoken of other- 
wise than as "unmentionables ;" still others cannot bear the 
mention of "legs," and even speak of the "limbs" of a piano. 
A book published in England informs me of some who speak 

*75 



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OBSCEMB LITE«ATUIIK AND C0N5T1TUTI0SAL IJIW. 



h 




of the "bo&om" of a chicken because of the immodesty of 
saying "breast." Surely, we have all met those who arc 
afflicted in some of these ways. 

Since the statutes do not define "obscene," no one accused 
under them has the least protection against a judge or jury 
afflicted wilh such diseased sex-sensitiveness, or agninst more 
healthy ones who, for want of information about sexual psy- 
chology, blindly accept the vehement dictates of the sexually 
hyperacsthelic as standards of purity. But whether a judge 
or a juror belongs lo either of these classes, or rejects their 
dictum as to what is pure in literature, tn any and every 
event, he is not enforcing the letter of a general law, but 
enacting and enforcing a particular ex post facto law then 
enacted by him solely for the particular defendant on irial. 
What that law shall be in any case depends on the experiences, 
education and the degree of sex-scnsitivcncss of the court, and 
not upon any statutory specification of what is criminal. 

Aiiiong more normal persons, we see the same differ- 
ence as to what is offensive to their modesty, depending al- 
together upon wliether or not they are accustomed to the par- 
ticular thing. That which, through frequent repetition, has 
become commonplace no longer shocks us, but that which, 
though it has precisely the same relation to us or to the sen- 
sual, is still unusual, or is seen in an unusual setting, does 
shock us. 

Some who are passive if you speak of a cow, are yet 
shocked if you call a bull by name. In the human species, you 
may properly use the terms "men" and "women." as diflfcrcn- 
(iating between the sexes, but if you call a female dog by 
name, you give offense to many. So. likewise, you may speak 
of a mare to those who would take flight if you called the male 
horse by name. With like unreason, you may speak of an ox 
or a capon to everybody, of a gelding to very many, but of a 
eunuch only to comparatively few, without giving offense. No 
one thinks that nudity is immodest, either in nature or in art. 
except the nudity of the human animal ; and a few are not 
opposed to human nudity in art. but find it immodest in nature. 
', The Agricultural Department of the United States dis- 

tributes information on the best methods for brccdinp domes- 
tic animals, and sends those to jail who advocate the higher 
stirpiculture. for the sake of a better humanity, if they are 
equally specific in the manner of treating the subject or advtv 
cate the adoption of the same method for improving humanity. _ 

276 



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F 



rnR ONLY tlHIFVlNO ELEMENT IS SUIIjeCTIVE. 

It thus appears tJiat the only unifying element gencralixed 
in the word "obscene," (that is, the only thing common to 
tvcry conccptbn o( obscenity and indecency), i» subjective, is 
an affiliated emotion of disapproval. |This emotion under vary- 
ing circumstances of temperament and education in different 
persons, and in the same person in dilTerent stages of develop- 
ment, is aroused liy entirety different stimuli, and by fear of 
the judgment of otiiers. and so has become associated with 
an infinite variety of ever-changing objectives, with not even 
one common characteristic in objective nature; that is, in liter- 
ature or art. 

Since few men have identical experiences, and (ewer still 
evolve to an agreement in their oonceptional and emotional 
associations, it must follow that practically none have the same 
standards for judging the "obscene," even when their conclu- 
sions agree. The word "obscene," like such words as delicate, 
ugly, lovable, hateful, etc., is an abstraction not based upon a 
reasoned, nor scnse-perccivcd, likeness between objectives, but 
the selection or classification under it is made, on the basis of 
similarity in the emotions aroused, by an infinite variety of 
images ; and every classification thus made, in turn, depends in 
each person upon his fears, his hopes, his prior experience, 
suggestions, education, and the degree of neuro-scxual or 
psycho-sexual health. Because it is a matter wholly of emo- 
tions, it has come to be that "men think they know becatoe 
they feel, and are firmly convinced because strongly agitated." 

This, then, is a demonstration that obscenity exists only in 
the minds and emotions of those who believe in it, and is not 
a quality of a book or picture. Since, then, the general con- 
ception "obscene" is devoid of every objective clement of 
unification; and since the subjective clement, the associated 
emotion, is indefinable from its very nature, and inconstant as 
to the character of the stimulus capable of arousing it, and 
variable and immeasurable as to its relative degrees of inten- 
sity, it follows that the "obscene" is incapable of accurate 
definition or a general test adequate to secure uniformity of 
result, in its application by every person, to each book of 
doubtful "purity." 

Being »o essentially and inextricably involved with human 
.emotions that no man can frame such a definition of the word 



277 



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OBSCENE LITERATUSB AND CONSTmmOKAL LAW. 

"obscene," either in terms of the quahties of a book, or such 
that, by it alone, any judgment whatever is poiuiibte, much less 
b it possible thac by any such alleged "test" every other man 
must reach the same conclusion about the obscenity of every 
conceivable book. Therefore, the so-called judicial "tests" of 
obscenity are not standards of judgment, but, on the contrary, 
by cvcr>' such "test" the rule of decision is itself uncertain, 
and in terms invokes the varying experiences of the tcstors 
within the foggy realm of problematical speculation about 
psychic tendencies, without the help of which the "test" tiself 
is meaningless and useless. It follows that to each person the 
"test," of criminality, which should be a general standard of 
judgment, unavoidably becomes a personal and particular 
standard. dilTenng in all persons according to those varying 
experiences which they read into the judicial "test."* It is 
this which makes uncertain, and. therefore, all the more ob- 
jectionable, all the present laws against obscenity. Later it 
will be shown tliat this uncertainty in the criteria of guilt 
renders these laws unconstitutional. 

As the 6nal proofs are being read there comes from the 
press the sixth volume of Dr. Havelock Ellis' elaborate 
"Studies in the P.'^ychology of Sex," the earlier volumes of 
which I have often quoted herein. At page 54 I find this 
gratifying indorsement of the main contention of this chapter. 
He says; "Anything which sextially excites a prurient mind 
is, it is true, 'obscene' to that mind, torp. as Mr. Theodore 
Schroeder remarks, obscenity is 'the contribution of the read- 
ing mind'." 



p S._The rent of tti« PsycholoKic Study of Modesty. 
which should be a part ol this chapter, will be found at 
pages 315 to 325. This misplacement Is «nc of the delects 
BfisinE from ttie literary mechanics, by which I tried 
basUly to make a book by the use of a paste pot and some 
magaziac articles, where I should have rewritten tl» 
whole. ~T. S. 



m 



D« ii;t.-;i tiy \^i O OQ I C 



CHAPTER XV. 

UNCERTAINTY OF THE "MORAL" TEST OK OB- 
SCENITY.' 

Owr Courts, in their blind nun-logical groping* (or some 
practical criteria of guili under thc^e vague statutes against 
"obscenity," have often amended the statutes so as to make 
the criminality of admitted facts depend, not upon the literal 
application of the letter of the statute, but upon the jury's 
opinion, according to its personal standards, as to whether 
or not the matter is such as might tend to deprave the morals 
of some hypothetical person who might be open to such im- 
moral influences. Assuming now for the sake of argument 
that this judicial legislation is entirely proper as a matter of 
legitimate statutory construction, then the question arises 
whether this makes the statutory criteria of guilt so certain 
in meaning as is necessary to constitute this statute "due 
process of law." If courts can be said to have answered a 
question which they have not even considered, because the 
answer is a necessary inference from their acts, then the 
courts have answered this question in the aEfirmative, Is this 
answer by implication correct? 

The inquiry now to be pursued is a<t to whether or tiot 
there exists an agreement as to the criteria of the ethical 
right in general, and of sex ethics in parliailar, such as eii> 
ables the "moral" test of obscenity to satisfy the constitu- 
tional requirement as to the necessary certainly of the cri- 
teria of guilt in a penal statute. The method will be to 
study the various schools of ethics, and to exhibit what the 
various leaders of thought have to say upon the subject. 

Rei.ir.ION AKD SCICNCS DlSTtNCUtSHED. 

The most conspicuous line of cleavage between differing 
schools of morals, is that which separates religious morality 
from ethical science. The matter of differentiating the ethics 
of science from religious morality, is but a sub-division of the 
larger problem of the distinctions between religion and science 



•R«rUal tram lb* TVvtt aafar. 



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UBSCKNK LITBKATUKB AND CONSTITUTIONAL LAW. 



in general. In The Arena' (Jan. 1. 1906). I discussed this latter 
question, ratlier too briefly, but summarized my conclusions 
ss to the difference between science and religion in the fol- 
lowing language: 

"In religion the source of authority for its beliefs and 
activities is subjective experiences, believed not to be de- 
pendent for their existence upon material objective stimuli. 
To describe these subjective processes for the acquisition of 
religious knowledge such phrases are used as on act of faith, 
an aseuranct of tht htart, the inward miracle of grace, and 
the inward monitions of tite spirit. 

"Science, on the contrary, deals only in objectives, and in 
our relation with them finds its only source of knowledge. 
Even when psychic phenomena are being studied the scientist 
must consider them objectively. 

"From this difference in the sources of religious and 
scientific knowledge, comes an unavoidable difference of meth- 
od to be pursued for the acquisition of their respective truths. 
The religionist resorts to faith, to prayer, to spiritual exer- 
cises, to silent communion with unseeable powers, superhuman 
intelligences, or extra-physical personages, as a means of se- 
curing those subjective experiences by which he knows 
because he feels, and is firmly convinced because strongly 
agitated. The scientist on the contrary can sum up his 
method in an application of the processes of synthesis and 
analysis to our human experience with our material cnviron- 
menU. 

"From these differences of source and method comes also 
a difference of aim. The scientist is concerned with the laws 
of nature, under which arc included not merely things and 
their forces, but men and their ways, to the end that human 
happine<.s here and now may be increased by a more perfect 
adjustment to the conditions of our present material well- 
being. On the other hand, religion is primarily concerned 
with the laws of our 'spiritual.' (that is, our alleged super- 
physical) nature, to the end that man's happiness, primarily 
in some other existence, may be increased through the in- 
dividual's adjustment to the conditions of 'spiritual' growth 
and 'spiritual' well-being. 



•jMOMr. IMS. Ttt K(l{t<aut *Dd StcsUr DIRiscaicbed. 



2S0 




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UO^^IC 



L'NCfCRTAINTV OF THE MORAL TEST OF OBSCENITY. 

"The scientist, or secularist, never subordinates the human 
happiness of this existence to that of any other. The re- 
ligionist on the other hand, whenever a conflict arises be- 
tween the joys of this life and those of some other kind of 
existence, always must sacrifice the present for the advance- 
ment of that other, super-physical, existence." 

What is thus true of the difference between religion and 
science in general, is equally true of the difference in the 
particular, between religious and scientific ethics, That the 
general sources of relip^ous authority, method for discovering 
religious truth, and the ends to be achieved by it. are all 
true of religious ethics in particular, is quite generally under- 
stood. The antipathy between religious and secular morality 
is not so generally known. Indeed, very few, even among 
those who have left the churches, seem to know anything defi- 
nite about secular morality, anil blindly continue to follow the 
moral dogmatism and sentimentalism of their abandoned re- 
ligion. Religious morality either directly, or indirectly through 
the meditation of holy writ or a holy priest or priesthood, rests 
upon the authority of some a priori sanctity, whose inerrancy 
is certified to by some subjective experience, sometimes per- 
sonal, at others adopted through imitation. The morality of 
science is always based upon experienced consequences of con- 
duct, and between these differing moral standards there is, 
and always will be, an irrepressible conflict, arising from their 
different source of authority, of method, and of end to be 
achieved. This I will now try to make more plain. 

THeoU3GtCAL UORALS. 

Prebendary Wace says: "Morality cannot for practical 
purposes be left to rest on scientific experiences. • * • * * It 
is essential in practice, to the welfare of individuals and of 
society alike, that the chief false routes of moral life should 
be barred by plain and authoritative prohibitions."* He also 
informs us that: "The eternal relations of the hrart to a per- 
fect being, towards whom every emotion of love and gratitude 
can be indulged to the highest degree," is a higher purpose and 
motive for morals than can be supplied by natural law. 

Prof. Sedgwick considers thf moral ought as an "ulti- ' 
mate and unanalvzable fact."* 



^Ibia Bnil RdiRiea tij Picbtodirr Wa 
Itgtii^t. IMI. vdI. 13. 
•U-d, Oct.. IM*. 

aSt 



la Jtmnut H •*• Vitfri* 



DitjiiJt'titiy 



Uoo^lc 



OBSCENE UTKKATURE AND COSSTITIITIONAL WW. 




Mortciiscn says: "Truly if the Light of religion be ex- 
tinguished no reason is perceptible for leading a moral life in 
all these finite and temporal relations."* 

"Blind obedience to exlraneoii!i law does not approve itself 
to us as really moral. • * * • The question concerning the 
groand of our moral obligations finds an adequate solution only 
in God,'" says the Rev. Olto Pflcidercr. 

In religious ethics the appeal is to "the reality which 
transcends that which now is and that which now is known. "' 
is the opinion of the Rev. George Wni. Knox. 

Notwithstanding the persistence of the clerical false- 
hoods to the contrary, Thomas Paine was a theist, and al- 
though his religious emotions no longer prompted him to 
adopt the Bible, or the priest, as embodying ihe divine will, he 
nevertheless did not place his morality upon a scientific basis. 
His words arc: "The practice of moral truth, or in other 
words a practical imitation of the moral goodness of God, 
is no other than our acting towards each other as he acts 
benignly toward us." 

Such thcistic morality, though strictly religious in an 
unseclarian sense, yet is the associate of a conspicuous devia- 
tion from the habit of applying the religious method to all the 
factors of life. Thus is marked the beginning of a transition 
from the all-reltgious to the complete secularization of our 
thinking. 

THE TRANSITION TOWARDS SECULJ\H MORALITY. 

With that religionist whose mind is wholly "uncorrupted" 
hy the scientific method, his religion, its methods and aims, will 
y'^etermine his ethical ideals. As a man gets away from the 
religious habit of mind, he gradually acquires moral and other 
ideals whose authority will dominate and determine his re- 
ligious convictions. This is the transitional stage of some ad- 
vanced theologians and the ethical culiurisls. When the.se 
dominating ethical ideals have become wholly scientific, then 
the secularisation of morals is complete. The following il- 
lustrates ihe second stage of .secularizing infiucnce in an ad- 
vanced thenlogi.in. "Religion must ever anew measure its 
inherited ideas and customs against the standard of the ethical 

•ChHiliin F.lWa, p. It. 

■Rev, Oho PHeidtrw In lim. Jmiraal gf Tt-fnlafo April, ISM. vol, .1, p. JS9, 

■Rrtirien ><i<l Klh<« br RcE- Ceo. Wm, Knni of Union Tbcot. Stm. fa& 

/■mrmMoooI Joimal at ElhSei. v. 12, p. J1S. 

S8S 



Dis'i^ea cy ' 



.oogle 



UHCBKTAINTY OF THE MORAL TEST OP OBSCENITY. 

ideals, [otherwise acquired?) and in so far as they do not 
harmonize with thai, it must strive for Iheir purification and 
progressive development. • • • • • It may be justly demanded 
that its teachings shall nut conflict with what has been es- 
tablished as theoretical or practical truth, and especially that 
it shall not lag behind our ethical ideals."* But how are 
we to judge of differing standards, which is the one that is 
lagging behind and which running ahead ? This author seems 
to demand that even the religious authority in matters of 
ethics may properly be subordinated to the standards of 
science. 

In this progression toward the secularization of our 
morals, the ethical culture movement represents the "laat 
ditch" of religion, in resisting the secular advance. Here the 
religious method, and its subjective source of authority, are 
still in full operation as to morals, but the theology and the 
use of the religious method in every other branch of human 
thinking may have been abolished. In the following quotation 
we see a non-theological religious morality in full force, with 
the ecstatic joy and hysterical enthusiasm of the revival con- 
vert but slightly impaired. One can readily imagine the ex- 
horter's impassioned tones accompanying this statement from 
the Ethical Culturist. 

"There is," he says, "no reason why men. become con- 
scious of their responsibilities and of the great issues at stake, 
|in ethical conduct.) should not be touched with reverence 
and awe as they think of these things, should not become 
hushed and subdued. Morality would then become a reli^on 
to men, in the fundamental and indeed universally recognized 
sense of the term. Morality as I conceive it, morality as I 
have tried — and yet too well know I am unable, to picture it — 
Morality as conscious willing glad subordination to the uiu- 
versal law of life, morality a« lifting one to comradeship with 
suns and stars, because it is faithful as they, Morality loving 
the low of life more than life. Morality ready to die rather than 
to be untrue — that Morality may be the very ideal which one 
may seek all one's life to follow, that may be the supreme pas- 
ticn to a ntan, dotvn on his knees he wtay bow before it, as 
be may before Jesus, or before Buddha, or any other son of 
man. who has exemplified the ideal, or made it any brighter 

•Rev. Otta PlUiltra in Am. ttrnmal af nWalcfy. Aprfl. !*»«. Ml. Z»->l« 

383 



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Cookie 



I 



OIKCENE UTEJtATUKE AMD CONSTITUTIONAL L^W. 

before his eyes. Aye, Ihcn it is plain the sense in which Re- 
ligion and Moralily may become one,"* 

It is apparent that the ethical culturist has that same 
unreasoned, passionate devotion to his moral law which the 
Brahmin manifests for the law of Manu, the Persian for the 
laws of Zoroaster, the Mohammedan for his Koran, the Prot- 
estant Christian for his Bible, the Catholic for his "permanent 
oracle of the divine will" at Rome, and the Mormon for the 
utterances of his "Prophet, Seer, and Revclator," who is the 
Utah Pope; and each endorsing something; which some other 
denounced as immoral. It is also apparent that the same sub- 
jective source of authority exi-sts in all cases though it at- 
taches itself to varying standards. Take these words of Mr. 
Mangasarian, when he was still connected with the Ethical 
Culture movement, as conclusive proof, "Ethical Culture 
is the religion of the spirit. • * • • * Ethics is the heart of 
religion. * • ■ • • /f « impossible to learn from the physical 
•world the lesson of moralily. • * • • • Whenever we protest 
against wrong it is from within that we draw our inspiration. 
• * • • * Ethical Culture is a spiritual religion.'" 

RELIGION WITH01;T MORALS. 

Not by this method, alone, but also by historical investi- 
gation, can it be shown that we can have, not only religious 
morals without theology, but also that we may have religion 
without a moral code. Here again eminent authorities also 
sustain our contention. We may begin by calling the Rev. 
Dr. Batchelor to the witness stand. He says: "Religion 
does not begin in ethics. It did not grow out of ethics. It 
was before ethics in origin and has during a great part of 
human history wrought in life independently of, and not in- 
frequently in distinct opposition to, the ethical sentiment. Let 
all sense of ethical obligation be destroyed, or reduce it again 
to the level of the pre-historic standard, and still religion 
would none the less be a power in human life not to be disr^ 
gardefl."'* 

Next we quote Professor Everett, of Brown University. 
He says :" "That religion may be non-ethical, finds numerous 
illustrations in the history of the world's religions. Indeed, 

•Rev. W. Sailer in MoriHly ibA RiIir'o>», p. M. 

*The Rcllrlon ef Ethical Culture, by Muigiutian. PUlldelphlS. 

*'R'-lilFion ill own Eridrnct. p. IV. 
^tiifrrnationat Joumat ttf Elhict, v. 10. p. 479. 



»84 



Disteency 



UNCEKTAINTV OF THE MORAL TEST OP OKSCKNITY. 

at a certain stage, many primitive religions appear to have 
been non-ethical. That of Rome continued for centuries, re- 
maining to the last almost exclusively formal and ritualistic. 
The statement that ethics may be non-religious, finds abundant 
support in modern life, as in the case of the po«ttivists." 

To this wc m.iy add the testimony of the Rev. Geo. Wm. 
Knox, of Union Thi-ological Seminary." He says: "Re- 
ligion is to be distinftiiished from ethics. Even when some- 
what developed, it may have no ethical code. It is said that 
Shinto has as its teaching only this: Fear God and obey the 
Emperor I Bm in its earlier books there is not even this 
teaching, nothing which implies either as an ethical maxim. 
The later writers explain this unusual feature by saying thai 
the Japanese, being holy by nature, need no moral code ; which 
was invented by immoral folk like the Hindoos and the 
Chinese." 

Aristotle and Bacon separated the sphere of religion and 
ethics by assigning to the former thu^ie matters relating to an 
after-life, and to the sphere of the latter those actions which 
relate only to the present life. Of course many others would 
insist that according to their conception of the after life, alt 
conduct here is related to it, affects it. Probably most of our 
present day orthodox Christians hold with Thomas Aquinas 
that God is the direct source of all the theological virtues, and 
the indirect source of all earthly virtues. While thus agree- 
ing as to the source of authority with all believers in theislical 
religions, there is the widest range of belief as to what the 
Deity really considers virtue. See the varying attitudes toward 
sex problems entertained by Catholics. Shakers. Methodists. 
Bible Communist!^, Mohammedans and Mormons, all being 
Christian sectarists. 

In practically all Christian ethics the foundation tenet is 
that God requires obedience to his law, not because it is good, 
but because it is his law. As to its goodness, finite humans 
have neither capacity nor right to sit in judgment, except to 
approve and obey. His moral law is good, not in itself, but 
only as the expression of the Divine wiH. Go<l might have 
willed to the contrary and then his will would still have been 
good. 

erRICS OF SCIKNCK. 
When we contrast this with any scientific conception of 

"UttntluHul iamr—i »l BlMtt: T. I), f. MS. 



Dicii^ency 



0BSC8NB LlTBHATirxe AND CONSTITUTIONAL LAW. 



f 



b 



ethics the irrepressibk conflict at oiice manifests it»elf. Here 
responsilnlily rests upon the individual, not merely as to choos- 
ing which God, or whose interpretation or concepticm of 
God's will, it is to which he wit) yield blind and unquestioning 
obedience, but also for the choice of conduct according to its 
social utility. Conduct now is moral or not according to its 
consequences, determined by its being a violation, or not, of 
the natural law of our social organism. But the good and 
ill of consequences are relative, so morality becomes a rela- 
tive matter instead of au absolute thing. Responsibility 
oow cannot be sliifted on to God, for having imposed an in- 
scrutable injurious "duty," and each person must decide for 
himself what is to be his own moral code, and himself must 
take the consequences of judging wrong and violating nature's 
moral law. For the breaching of nature's inexorable laws 
there is no forgiveness, nor vicarious atonement. In natural 
law all must take the natural consequences of their conduct 
No priest can save us. We must readjust, gel in harmony 
with the law — or perish. No wonder then that Cotton Mather 
denounced ethics as "a vile form of paganism."** 

THB NON-RELtCtOUS, KON-THEOLOGtC UORAUTV OF SCIENCE. 

To make the irresistible confiJcl between religious and 
scientific morals still more evident it becomes desirable to 
quote some of the standard writers upon ethics, to show 
what is their source of ethical authority and what are their 
varying criteria of the moral life. 

As to the source of ethical authority, "Clifford says that 
the 'Maxims of ethics are hypothetical maxims, derived from 
experience and based on the assumption of the uniformity of 
nature.' "" 

Another offers this: "Morality springs from those human 
relationships in which the individual finds himself compelled 
to live and act. It ha<t its roots in the needs physical and 
mental which other hiunan beings can satisfy and in the 
sympathies which answer to those needs." Science "seeks 
to find the sanction of morality in the natural and ine^'itable 
results of the conduct itself and to establish morality on a 
rational basis by exhibiting the inescapable consequences of 
right and wrong action, of good and evil character, as in 

■•Sw H»IT"« AAaUumct, ». •, pp. i«'-»8S. 

■•Rrlirion and Eltiks. b; Rt*. Cm. Wn. Ksoi, ot XJtSon Tb*<''. Stm. I* 
iititntaiirHtt Jettnul tf CiUm. *. It. p |na 

386 



Dnj iiJt-ii iiy 



.oo^Ic 



UNCEBTAINTY OF THE MORAL TEST OF OBSCEKtTY. 

tfiemselves sufficient grounds for the choice of the one and 
the avoidance of the other. As a science it does not even in- 
quire if there is a supreme being."'* 

While alt scientific students, of ethics agree that natuir is 
the ultimate source of authority in ethics, yet when it corks Io 
formulating a general statement of what is required of us by 
the natural law of our inlerhuman relations there is, at least 
seemingly, a wide range of difference in the statemenL This 
is quite inevitable in the present undeveloped state of our at- 
tainments in the social sciences. We arc as yet too near the 
bepinnings of our investigation into these subjects to liave 
arrived at any comprehensive and ultimate rational generaliza- 
tions. 

Let me now portray the criteria of moral guilt according 
to various students of ethical science. I will begin with John 
Stuart Mill whose ethical views are still very popular with 
the masses, but have lost much of their authority with the 
more modem scientists. 

He says: "According to the greatest-happiness principle 
as above explained, the ultimate end, with reference to and 
for the saVe of which all other things are desirable (whether 
we are considering our own good or that of other people) is 
an existence exempt as far as possible from pain, and as rich 
as possible in enjoyment, both in point of quantity and quality; 
the test of quality and the rule for measuring it against 
quantity, being the preference felt by those who in their OfK 
portunities of experience, to which must be added their habits 
of self-consciousness and self-observation, are best furnished 
with the means of comparison. This being according to the 
utilitarian opinion the end of human action, ts necessarily also 
the standard of morality."" 

Another statement of such views is the following: "James 
Mackaye, in 'The Economy of Happiness,' states that a right 
act is an act of maximum utility, that act. among those at any 
moment possible, whose presumption of happiness is a maxi- 
mum, and that *a wrong act is any alternative of a right act' 
The test therefore lo be applied to an act is. does it produce 
happiness? If so it is a moral act."" 

A« a criterion of mnduct these statements arc still vague, 

■IN*!- F*rt*ti nf Kfam tlBlvmln in («l. 14. f. IT*. fMjmWi'i^J i*w> 
•Ml ft eiMn. 

"r. u Bf Miiri trmiuTiuiiui 

"Anhar Snilh In Thr A'rma Au«im>i. I>M. 9. IM. 

287 



Die wzsa cy ' 



OBSCENE LITERATURE AKO CONSTITUTIONAL LAW. 

Whose conception of the good and the useful has nature pre- 
scribed as a measure of moral values? Is it right for a majority, 
deliberately and for its own pleasure, or good, or both, to- 
do injustice and inflict pain on a helpless minority? Most 
people seem to think so. if we may accept the great popularity 
of the dogma: "The greatest good to the grcatc'i number," 
without limiting this test to such conduct as necessarily in- 
volves social consequences as its direct result. The few, with 
a more refined sense of justice, as it seems lo me, decline to 
give their assent to a doctrine which permits the greatest 
Dumber to do any wrong, no matter how outrageous, if only 
in their own opinion the greatest number (to wit. them- 
selves) deems it even momentarily to be advantageous to them- 
sdvcs, in its ovcrweighing goodness. 

Out of such speculations come conflicting ethical theories, 
according to whether the emphasis is put upon the individual 
good, the majority's good or the racial good. Others with » 
broader vision and a more refined sense of justice, as it seems 
to me, repudiate such notions of morality. "The highest 
morality demands, therefore, careful judgment. The factor» 
to be considered are the complicated relations of men in the 
society of which the judge and the actor himself is a mem- 
ber; morality may thus be identified with justice in the highest 
sense of the word."'* 

"Every action is right which in itself, or in the maxim oi* 
which it proceeds is such that it can co-exist along with the 
freedom of the will of each and all in action, according to a 
universal law. If then my action or my condition generally 
can co-exist with the freedom of every other, according to a 
universal law. any one docs me a wrong who hinders me in 
the performance of this action, or in the maintainance of this 
condition. For such a hindrance or obstruction cannot co- 
exist with freedom according to universal law." 

The last quotation, from Emanuel Kant's Philosophy of 
Law, is but the rule of natural justice applied to the problem 
of personal liberty, and juslifies all conduct which, according 
to Herbert Spencer's formula, is not an invasion of another's 
greatest liberty, is consistent with an equality of liberty. 

Even if the seeming differences thus far exhibited can be 
reconciled, still others confront us. These, as it seems to me, 

■nvillltmi' FIvDlutlDnil P.lhlei^ 441. 

aS8 



Di(i ii^ea cy 



UNCERTAfI 



TBS "MOBAL TEST O? OBSCENITY. 



result mostly from a ;>artial view of the individual's rclalioits 
to his fcllowman and the real of the universe, and from this 
defective view comes an undue emphasis upon some one aspect 
Of some one phase of the ethical problem. Thus the Egoist 
finds the chief factor of moral obligation to be in the personal 
good of each actor for himself. From the evolutional view- 
point we have racial advantage emphasized most. Pres. G. 
Stanley Hall states it thus: "The basis of the new biological 
ethics of today and of the future is that everything is right 
that makes for the welfare of the yet unborn, and all is wrong ( 
that injures them, and to do so is the unpardonable sin — the 
only one that nature knows." 

It may be a matter of interesting speculation to inquire 
if these two seemingly divergent views are really in conflict. 
The question then would be whether an individual can injure 
himself without injury to his progeny and whether future 
generations can possibly be injured except by first injuring 
some one of the present generation? To ask these questions 
already suggests the possibility thai all these seemingly vary- 
ing standards can be harmonized by reference to some broad 
generalization of nature's moral law. Some such general 
statements have already been attempted and will now be quoted 
to emphasize further the inevitable and irreconcilable conflict 
betwc<-n the morahty of religion and the results of ethical 
science. Charles Lee says : "Vice represents an incomplete 
response to the guidance of the law of life. • • • • Like every 
other arbitrary standard, that of morality must be regarded 
as the interpretation of the law of life for the guidance of the 
individual man. • • • • Perfect freedom is only to be found 
in absolute obedience to nature's law. All human laws are 
but intcfprctations thereof, and according to the degree of their 
imperfections the individual response to the guidance of i^* 
ture is fettered, and social sickness becomes more or less 
acute."'* 

Rut "the law of life" is still a vague phrase, and the law 
Kself but partially understood. However, it points clearly the 
direction of our search for the ethical sanction. De Fleury 
tries to be more specific when he says : 

"The new morality is hygienic, science raising itself to the 
dignity of a practical philosophy; rt is therapeutics dealing 



■H;*mlc Elbkh tp. US-lll-tM. 



389 



OBSCENE UTERATUtE AND COSSTITUTIOSAL LAW. 



I 



I 



with the temporary weakness, or more serious paralysis of oor 
will, the great regulator of the human machine; disorder in 
love, disorder in work, insensate anger or vatn ^dness; these 
are the sins of enfeebled will. If the hygiene which we desire 
succeeds in teaching men to live worthily, and to work well 
then it in truth is a sound niorality, for except toving and work- 
ing, what is there of serious import here below ? (p. 356) ■ • • • 
I believe firmly thai our vices develop themselves only io 
unhealthy soil ; that (he way to cure the mind h to treat the 
brain ; that henceforth the moralist is inseparable from the 
doctor, (p. 361) * • • • * If we look at love from the pwnt 
of physiology or of Naturalist philosophy, platonic love will 
surely appear to us the most harmful as it is the most im- 
moral. "^ 

But this again is perhaps a parltal view. Many without 
being unhealthy, develop rices through mere ignorance, imita- 
tion or misinformation, and when they come, diseases, personal 
and social, are often a consequence and not a cause. This is 
more especially true in the realm of sexual ethics than any- 
where else, because here moral sentimental ism and the the- 
ology of sex are constantly and successfully forcing their 
misinformation and anti-natural ideals upon a long suffering 
public, with the result that our insane asylums and sanitariiuns 
for the treatment of nervous diseases are full to overflowing. 
A wiser view will some day abolish the dogmatic sex-morality 
of religion, and substitute a truly scientific ethics in its stead, 
which will not only be prophylactic and therapeulic. from the 
individual viewpoint, but will also discover to perfection and 
also live up to nature's rule of justice which is always moral, 
as among all humans. Thus only will we attain our highest 
degree of perfection and our most elevated conception and 
realization of human joys. 

To me it seems as though Herbert Spencer has given u» 
the most rational view of the criteria of right conduct and in- 
dicates most clearly what is the object of ethical science. As 
to the first he says: "Conduciveness to happiness is the ulti- 
mate test of perfection in man's nature." Further on he savs : 
"Before we can fully understand the ethical aspects of chastity, 
we must study its biological and sociological sanctions. Con- 
ducweness to welfare, individual or social or both, bring lAf 

"Dt Fleary In McdkiM >nd Mind, p. JM, 



L'^iiii-ituy 




00^ IC 



UNCKHTAINTV OP TUK UOKAL TBST OF OBSCENITY. 




tdtimate crilerufn of evolutionary ethics, the demand for chat- 
tity has to be sought in its effects under given conditions. • • • 
Wc saw, too, that in some cases, especially in Thibet, polyandry 
appears more conducive to social welfare than any other re- 
lation of the sexes. It receives approval from travelers, and 
even a Moravian misslonaiy defends it ; the missionary holding 
that 'superabundant population, in an unfertile country, must 
be a great calamity, and produce "eternal warfare or eternal 
want." ' '" 

Likewise a convention of Christian missionaries, for the 
moment subordinating the absolute moral creed of their reli- 
gion lo practical ends, once resolved thai Mohammedan poly- 
gamy was not a barrier 1m ai'ccplance uf tlic convert to the 
orthodox fold. 

But. I must return to Spencer. It seems to me thai when 
we have achieved a truly scientific ethics, we will probably 
have unified all the scientists' seemingly conHicling criteria 
of right conduct. The work before us is outlined by him in 
these words: "The view for which I contend is. that Morality 
(iroperly so-called — the science of right conduct — has for its 
object to determine hoiv and why certain modes of conduct are 
detrimental, and certain other modes beneficial. These good 
and bad rci^uUs cannot be accidental, but must be necessary 
consequences of the constitution of things ; and 1 conceive it 
to be the business of Moral Science to deduce, from the laws 
of life and the conditions of existence, what kind of actions 
necessarily tend to produce happiness, and what kinds to 
province unhappiness. Having done this, its deductions are 
to be recognized as laws of conduct ; and arc to be conformed 
w irrespective of a direct estimation of happiness or misery. "•• 

As the stars do no! create the laws which they obey, 
so men cannot create the mora) laws, which compel obedience, 
or the acceptance of disaster. The law of individual life 
Is rather a physical than an ethical law, because an enlight- 
ened self-interest will preclude self-infliclion from becoming; 
a social menace. The ethical problem begins only when others 
arc directly afTcctcd without their consent, and the ethical 
law. which is only the law of life in the social organism, nec- 
essarily inheres in the nature of things, and it is the purpose 



■SptSMf^ PHodpIt* ol ElUo, r. 1, pp. UMU. IMlcBVCtnlnc.— T. t, 
■Prindpln «( KtUM. «dI. 1, ^ »T. 



291 



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OBSCENE UTEKATUKE AMD UONSTtTi;TIONAL tAW. 




of ethical science to discover, amid iniinite comptexitie», what 
is the natural law of life in interdependent human exiMence. 
Jast as fast as we acquire a clear comprehension of what that 
law is, either in part or in whole, we are by imperative self- 
interest irresistably impelled to live in accordance with it. and 
avoid the penalties of its violation. Like gravity, nature'* 
moral law is unavoidable, and for its violation there is no for- 
givencj>s nor vicarious atonement, and knowledge of the law 
of its operation only facilitates such an adjustment as enables 
us to live in harmony with its condition of well-being — that 
is to avoid its pain and to insure its blessings. 

It is believed that I have now demonstrated that "moi^ 
ality" is not a fixed and certain thing, about which all are 
agreed; but on the eontrar>' that the criteria of the ethical 
right, even in their broadest outline, are tremendously in con- 
flict. Of course this conflict acquires indefinitely greater 
variety when these varying standards are applied to concrete 
problems, in which event even the same verbal standards of 
judgment take on various hues, according to each individual's 
own peculiar experiences. It is also believed that I have dem- 
onstrated that there is an irreconcilable conflict between the 
morality of all religions and ethical science, which conflict 
arises out of an inevitable difference in their respective sources 
of authority, their different methods for the ascertainment of 
moral tnilhs. and their difference in the end lo be achieved 
by living the ethical life. 

From this conflict between the numerous varieties of 
ethical standards, and the conflict between these and the re- 
ligious conceptions of the right life, emerge some practical 
restilts which our legislators and judges should, but do not, 
bear in mind. Which of the foregoing varying standards of 
morals does the statute, or the judicial legislation, direct jurors 
to apply in determining whether or not a particular book is 
"obscene?" Where is the legislative authority for the selec- 
tion if one is made? 

But careless thinkers may be tempted to say that it makes 
little difference by what standard of ethics the judgment is 
determined, since we all reach pretty much the same con- 
clusion as to what is the moral right in matters of sex. There 
are two answers to this specious argument. First: From the 
viewpoint of the judge it makes all the difference between a 



393 



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UNCERTAlNir or TCB UOXAL TKST OP OBSCENirY. 

<onstitutionaI and unconstitutional statute, whether a man 
of ordinary iineltigence is, or is not. able from a mere reading 
of the law to know in advance of a verdict by what criteria of 
guiit the verdict will be determined. The second answer is, 
that it is not a fact that we all reach the same conclusion as 
to what is the ethical right tn relation to sex problems. The 
variety in statutes by which we regulate marriage, divorce and 
«ther phases of sexual activities, sufficiently evidences this. 

This difference may be further illustrsted by quotations 
from modem elhicians who have entertained opinions or made 
arguments bearing upon sex-ethics which are of a character 
sudi as have not yet received general approval. 

REV. JOBN NORRIS. 

"For if pleasure as such were against the good of the com- 
munity, then every particular pleasure would be so, because 
every particular pleasure partakes of the common nature of 
pleasure, which would then be enough to render it evil. ■ • • 
Now concerning particular pleasure I propose these two gen- 
eral canons, which I think will hold in all instances whatsoever: 
First that that pleasure which has no trouble or pain annexed 
may, nay indeed cannot but be embraced; as on the contrary, 
the pain which has no pleasure annexed is to be avoided. If 
unusual pleasure were evil in itself, or as such, it would be 
so in all its instances. This is an undeniable consequence. 
But now that it is not so in all its instances, is plain from 
the divine institution of marriage and therefore it is not 
«vil in itself. For it muKt not be thought fas some seem to 
fancy) that marriage make<t that good which was in itself 
evil. For if once evil in itself it must eternally and universally 
be so, and consequently c\'en in marriage itself, that as to sen- 
sual pleasure being the same with fornication or adultery. 
But sensual pleasure is not evil in marriage, therefore not in 
itself or as such. This is demonstration. • • • • We will 
state the question * * * and it shall be whether the pleasure of 
the sixth sense have any moral turpitude in it. Wherein I 
will venture to pronounce that it has not as such. But to be 
captivated to that pleasure, so as to make us less capable of 
that which is better, or to break the laws of what is just and 
decorous, this is the turpitude that is contracted therein. * * * 
If there be no moral turpitude in the simple conception of 
venerial pleasure, then all abstracted acts of tt, such as toI- 



»93 



D,cr..-«ut:yG0Ot^lC 



OBSCENE UTEKATUBJB AND COHSTITUTIONAL LAW. 

untary pollmion. lascivious embraces, etc., must be accoanted 
Uwfut, which arc yet condemned by all moral and divine 
writers. The rea»on for the consequence is, because there 
K Ons to be nothing in such abstract act besides the simple 
perception of the pleasure of the sixth sense. For, as for ex- 
cess, capttvation of spirit, too senMtive applications and the 
like, Iheite are merely accidental, and equally incident to the 
same acts in all other circumstances."** 

JORK STUART HILL. 
"Baron Wilhelm von Humboldt, in an excellent essay. 
[Sphere and Duties of Government! from which I have al- 
ready quoted, states it as his conviction that engagements 
which involve persona! relations or services should never be 
legally binding beyond a limited duration of time ; and that 
the most important of these engagements, marriage, having 
the peculiarity that its objects are frustrated unless the feelings 
of both of the parties are in hannony with it, should require 
nothing more than the declared will of either party to dissolve. 
• • • • * Even if, as von Humboldt maintains, the circum- 
stances of the marriage ought to make no difference in the 
legal freedom of the parties to release themselves from the en- 
gagement (and I also hold that they ought not to make much 
difference), they necessarily mal<e a great difference in the 
moral freedom. A person is bound to take all three circum- 
stances into account, before resolving on a step which may af- 
fect such important interests of others, [that is, the other 
spouse, or their children, no one else.) ■ • * Fornication, for 
example, must be tolerated."" 

REPORT OP PROP. PELIX ADLER AND COMMITTEE OP FIFTEEN. 
"The proposition is to exclude prostitution from the 
category of crime" [and treat it only as a sin.J" 

PROP. CB. LBTOURNEAU. 
"It is therefore probable that a future more or less dis- 
tant will inaugurate the regime of monogamic unions, freely 
contracted, and, at need, freely dissolved by simple mutual con- 
sent, as is already the case with divorces in various European 
countries— at Geneva, in Belgium, in Roumania, etc., and with 
separation in Italy. In these divorces of the future, the com- 

••Th* Thcorr >nd Rcpilatian of Line, pp. •l-M-lTI-ltl-in. 
•Ob Uhtny. pp. las-iri, ITt.'Bdtt EdiHoo. 
■The Socill ErII, p. 1ft, 

294 ■ 



DiS'fJfU uy ' 



UHCERTAIKTY OP THE ' MOBJU, TEST OF OBSCEMITY. 




miuuty will intervene only in order to safeguard that which 
is of vital interest to it — the fate and education of the 
children."" 

BERBERT SPENCER. 

"As monogamy is Ukcly to be raised in character by a 
public sentiment requiring that the legal bond shall not be en- 
tered into unless it represents the natural bond; so perhaps 
it may be that the maintenance of the legal bond will come 
to be held improper if the natural bond ceases. • • • • 

"Whereas at present the union by law is thought the more 
important and the union by affection the less important, there 
will come a time when union by aflfcclion will be held of 
primary moment, and the anion by law as of secondary 
moment."" 

WOftnSWORTn OONISTHOItr'K, M. F. 

"If permanent unions are the natural outcome of civilized 
instincts, they will come without the assistance of the sexual 
tinker. If they are not, then we are fighting against nature 
as the Titans warred on the god.*, in vain. The system is 
artificial and rotten and must fall. For my part. I do not be- 
lieve that even the approximation to monogamy observable to- 
day among civilized races could have been imposed upon thcta 
from without. Even the terrors of religion could not have 
prevailed again&t the impulses of love, any more tlian the ter- 
rors of the deep prevailed against the voices of the siren. 
Throughout all the ages Religion has conformed to the pre- 
vailing sexual customs. The gods of CMynipus sided with the 
abductors of Briscis; the god of the Hebrews rewarded the 
virtue of Solomon with hundreds of wives and concubines; 
the god of the Koran offers eternal promiscuity to the faith- 
ful, and the god of the dark age» only followed the rule binding 
the gods generally, by enjoining monogamy on all who would 
be saved. No ; the tendency comes from within. ! believe in 
monogamy, not because it is good for the race, not because 
it is good for the husband, not because it is good for the 
children, but because an uncoerced monogamy, the result of a 
state of evolution not yet attained, will be best for each and 
all."** 

C. STANISLAND WAKE. 

"Some explanation is perhaps due why sexual morality 

*C*alutian of Mirrticc. p. US. 

■Pnndtilra ef ^i<eio\i>ty. *- 1. fart t, 9. TM Applctda*! Bdltlon. 

"La* In a Ttrt StMt. p. 111. 

995 



Dieii^eacy 



Gooj^le 



IME UTERATUKE AND CONSTITUTIONAL LAW. 




has not been more fully considered in the following pages. 
Its phenomena are frequently referred to when describing the 
character of particular peoples, but the subject embraces so 
wide a range that it was found impossible to do it justice tn 
the present work. Moreover, as most of those phenomena 
are wanting in an element, injury to others, which is essential 
to the idea of immorality they arc better fitted for independent 
inquiry."" 

DR. RAVRLOCK ELLIS. 

"The State regulation of marriage has undoubtedly played 
a large and important part in the evolution of society. At 
the present time the advantages of this artificial control no 
longer appear so obvious (even when the evidence of law 
courts is put aside) ; they will vanish altogether when women 
have attained complete economic independence. • • • 

"Sexual relationships, so long as they do not result tn 
the production of children, are matters in which the com- 
munity has. as a community, little or no concern, but as soon 
as a sexual relationship results in the pregnancy of the woman 
the community is at once interested. It is at this point 
clearly the duty of the state to register the relationship."" 

EDWARD CARPENTER. 

"Thus the family institution in its present form, and as 
far as that form may be said to be artificial, will doubtless 
pass away. • • • Wliite to-day this sight [of offspring) recon- 
ciles husband and wife to the legal chains which perforce hold 
them together, in a free society, we may hope, it will more 
often be the sign and seal of a love which neither requires or 
allows any kind of mechanical bond."" 

ELSIE CLEWS PARSONS, PH.D. 

"We have, therefore, given late marriage and the passing 
of prostitution, two alternatives, (he requiring of absolute chas- 
tity of both sexes until marriage or the toleration of freedom 
of sexual intercourse on the part of the unmarried of both 
sexes before marriage, i. e.. before the birth of offspring. In this 
event condemnation of sex license would have a different em- 
phasis from that at present. Sexual intercourse would not 
be of itself disparaged or condemned, it would be disapproved 

"Rvoluiion fif Morality, t. I. p VI, 

■■RnlMd nrrini from tVtriminiitr Reritm, OoL,lS8B. 

"Lovn Coratnti of Alt. f^. liT-IIS. 

396 



Digt«eacy 



LINCeilTAINTY or TUK "yORAL" TEST OP OBSCKNtTY. 

of onJy if indulged in at the expense of health or of emotional 
or intellectual activities in onctelf or in others. A» a matter of 
fact, truly monogamous relations seem to be those most con- 
ducive to emotional or intellectual devciopaicnt and to health, 
so that, quite apart from the question of prostitution, pro- 
miscuity is not desirable or even tolerable. It would, there- 
fore, seem well from this point of view to encourage early trial 
marriage, the relation to be entered into with a view to per- 
manency, but with the privilege of breaking it if proved UD* 
successful, and in the abstnct of o§sfhng without suffering 
any great degree of pubUc condemnation."** 
GEOKPRKY UOanUElL 
"Strictly speaking, a marriage is fclicitious when, through 
a fortunate chain of circumstances, there is complete menta] 
and physical adaptation of two fervid lovers to each other's 
tastes, opinions, sympatliies and passional desires. • • • • 
Thousands of persons gifted with insight and social pre* 
science, and endowed with a zeal for the welfare of humanity, 
are convinced by study, observation, and mature reflection that 
the single lifelong union of the sexes is not adapted in the 
highest sense to the individual and collective needs and desires 
of our age, and that such associations will be even less fitted 
to survive in the society of the near future. • • • • Every 
marriage is a trial, an experiment which may fail or succeed. 
• ■ • * Marriage mu*t be free. Lovers when they join 
hands must agree to live together so long as the natural tie 
of affection holds them with its silken strands. Any other 
pledge, civil or religious, mocks at morality, derides the 
promptings of a healthy conscience and scoffs at reason."'* 

PROr. WeSTCRMARCK. 

"When both the husband and wife desire to separate, it 
seems to many enlightened minds that the State has no right 
1o prevent thon from dissolving the marriage contract, pro- 
vided that the children are properly cared for; and that for 
the children also it is better to have the »u)>ervi»ion of one 
parent only, than of two who cannot agree (p. 39S] * • * 
It is obvious that the extreme horror of fornication which is 
expressed in the Christian doctrine is in the main a result 
of the same ascetic principle which declared celibacy superior 

■OMptin Ml BoBW) Ijm. pf. Itl-H^Mt. 

997 



DiUlCt-fftiy^tOOQlC 




OBSCENE UTERATURE AND CONSTITUTIONAL LAW. 

to marriage, and tolerated marriage only because it could not 
be suppressed, [p. 4391.] * * * When a man and a woman, 
tied to each other by a deep and grnuinc affection, decide 
to live together as husband and wife, though not joined io 
legal wedlock, the cen&ure which public opinion parses upon 
their conduct seems to an unprejudiced mind justifiable, at 
most, only in so far as it may be considered to haw been 
their duty to comply with the laws of their country and to 
submit to a rule of some social importance. 

"Sexual intercourse between unmarried persons of oppo- 
site sex is thus regarded as wrong from different points ot 
view under different conditions, social or psychical, and aO 
of these conditions arc not in any considerable degree com- 
bined at any special stage of civilization." [p. 440.]* 

DR. DE PLRtrREY. 

"If we look at love from the point of view of physiology 
or of natural philosophy, platonic love will surely appear to 
us the most harmful as it is the most immoral."" 

As I am reading proof there comes to me a journal 

1 edited by John Trevor, the author of "My Que^t for God" 

and Pastor of the Labor Church, Manchester, England. From 

his words I quote the following few paragraphs: 

"I know a young man of unusual ability in his profession' 
who has been giving his energies devotedly to his work, while 
his brain was being wasted by the results of the suppression 
of passion. The consequence is that he has had to be sent , 
to a lunatic asylum. Even should he recover, hi.* whole life 
is blighted. He has been robbed of his manhood, of his 
personality, of that love without which life is not life. 

"The doctrine of the essential antagonism of the Spirit 
and the Flesh is a fiction of Traditional Religion which 
Natural Religion must destroy. It is only in harmonious 
blending of the two that the fullness of Manhood and Wo- 
manhood is realized. The passion of love suppressed like a 
disease has developed a mass of festering sores. 

"One of the most amazing facts in the history of 
Humanity is this of Man's abject submission to unnatural 
restraints in the name of some Revelation from God. When 
incapable of submission, he has called his revolt a Sin — a 

■The Oii|<n and Dnelapintni ol Ihe Mnril Idnt, «al, I, «| page* B0It4_. 
"ll«]lclnc tni Uind. p. IM, el kq. 

398 



D^^illtAToo^Ic 



UHCEfiTAINTY OF TUK "UORAL" TEST OF OBSCENITY. 

sdll more ^rovcJing submission.. For many hundreds of 
years Man has tried to submit to an unnatural standard of 
virtue, not having the virtue of revolt. 

"Natural Religion, to grow up naturally, demands a 
Natural Life. The right to live naturally Traditional Re- 
ligion denies, and the Slate enforces the denial. 

"When a plant j-ou cherish is about to flower, you are 
more careful than ever that its conditions shall be such as 
Nature requires. When youth is about to flower, the con- 
ditions imposed are as unfavorable as can well be imagined. 

"To return to the symbol of the acom — as the fall of 
the acnm from the nak is the birth of a soul into the world. 
Puber^ is the swelling of the acom under the genial influences 
of Spring. Then the soul of youth has need of Knowledge 
and Culture and Freedom for Self-expression, These thf 
world refuses. This is the Tragedy of Youth. The world 
sears with a hot iron the acom that b^ins to swell. Tlte 
man never recovers wholly from the injury done to tfte 
youth. I have no doubt the same is true of the woman also. 

"To make man submit to this irremediable injury, and 
to provide him with palliatives of its consequences, is one 
of the principal functions of the churches. Much of the 
social work of the churches to-day is inspired by the neces- 
sity of keeping young people from thinking of sexual matters. 
It is called keeping them off the streets, 

"The churches are the wreckers of youth, and live largely 
on the results of their wreckage. The Right of Youth to 
Self -expression through love is the great principle over which 
the coming fight must be waged between Tradition and Life. 

The Redemption of Love from the curse of Tradition 
in the name of Natural Religion is the work to which I must 
devote the rest of my life."" 

PREDESTINATION AND IMHOKALITY, 

This tlien brings me back to the starting point of the 
conflict between religious morals and ethical science which, 
in one of his essays, Tboreau sums up in these words: "To 
regret relijrion is the first step towards moral excellence." 
Macaulay in his essay on "Civil disabilities of the Jews," use* 
this language : "The doctrine of predestination, in the opinion 
of many people, lends to make those who hold it utterly im- 
moral. And certainty it would seem that a man who believes 

■rw Om tiff. Kb I, ». IV-JO. 



OBSCENE L1TE«ATU«S AND CONSTITUTIONAL L-\W. 





1ii» eternal dutiny to be already irrevocably fixed m likely to 
indulge in passiotu without rrstraini and to neglect his relig- 
ious dulic5." — Italics are mine, T. S. 

In his youth the illustrious Milton was inoculated with 
the doctrine of predestination, and it may be possible that 
it was this which fir^l determined his conclusions concerning 
divorce and polygamy, a.« to which Macaulay remarks that he 
■does not think "any reader acquainted with the history of his 
life ought to be much startled in the matter." All this suggests 
again the very practical question whether the doctrine of pre- 
-dcsttnation, and Milton'« views about divorce and polygamy 
and the numerous opinions of secular scholars herein qtwted, 
are criminally obscene becau»e a court and jury believe the 
"tendency" of these doctrines "is to deprave and corrupt the 
morals of those whose minds arc open to such influence and 
into whose hands a publication of this sort may fall."* 

Judges, with Comftockian or ascetic minds or some pe- 
culiar religious bent, may answer "yes" and can point to a 
consider^ible quantity of loose judicial utterance to support 
them. An eminent English law-writer has answered in the 
negative. He says : "I have found no authority for the prop- 
■osition that the publication of a work, immoral in tlie wider 
sense of the word, is an offense. A man might with perfect 
decency of expression, and in complete good faith, maintain 
doctrines as to marriage, the relation of the sexes, the obliga- 
tion of truthfulness, the nature and limit of the right of 
property, which would be regarded as immoral by most people, 
and yet (I think) commit no crime. Obscenity and immoral- 
ity in this wide sense are entirely distinct from each other. 
The language used in some of the cases might throw doubt 
on this, but I do not think that any instance can be given of 
the punishment of a decent and bona Ude expression of opin- 
ions commonly regarded as immoral,"" Italics are mine. T. S. 

Who is right? Sir James Stephens or the loose language 
used in some cases? Even if we follow Stephens, what are 
the criteria of "decent expression of opinion?" Where does 
the legislative enactment determine the question? How can 

-LI. S, fi. ncbi.ui, .'B Fcl. B. SJJ. 

*Sir Jiain SlcrhFo'i "blgm of <>>< Criniditl Law." p*gr P7. If one vo* 
lo conaldrr crklicilly Ihc niiiil*^ of finitinu 'J^e dividini line belwera "imnunliVT 
In ihe brrmdcr icntr" in<l othd kin'li nf immortlily. he mighl concliuli »ilh l>f. 
A, W. Hcrio)( ihii "Moi»li ure imiaiiiiiy.'" Sec Harftr'i IK«tl> tone II — H09. 
For other unDnbodoJc vi«v« of vexut) morktiiy. tcr " niaiitira the fio ^ ' ' 
■hy BaioM Boke, in Tht Caimafoltun Magatwt tvi May, 19l». 



I 

i 



ock of Aco," 




UNCEKTAtNTY OF THE "MOKAL" TEST OF OBSCENITY. 

a man from reading the statute or even the judicial legislation 
under il infonn himself by whidi standard of "decent expres- 
sion," or of "morals," his production will be judged "obscene?" 
It must now be self-evident that every conviction under 
"obscenity" statutes is according to an ex post facto standard 
of judgment, diclatcd by caprice, not by any legislatively 
create<l criteria of guilt. 

CONCBtlNINC " MORAL POISON." 
Suppose a person to be indicted for selling a deadly poison 
in violation of law. It is pruven or admitted that the defend* 
ant sold some of the alleged poison to many persons, who 
ate heartily thereof. No witness is introduced to prove that 
a chemical analysis has been made and that such proves the 
substance in question to be a deadly poison. No one testifies 
that any of those who have eaten of it were injured thereby. 

Suppose then that in spite of these facts the court should 
submit to the jury the question of guilt, and iii'vtriict them that 
they may look at the alleged poi$on. and smell of it. and that 
if they do not like its appearance, or smell, they are author- 
ized to believe it to be poisonous, and must hnd the defendant 
"guilty." It requires no argument for anyone to sec the out- 
rageousness and titter lawlessness of such a proceeding. 

In all cases of "obscenity" juries are instructed to de- 
termine guilt aecordinff to their conviction as to the existence 
of "moral poison" which, in all its varied forms of statement, is 
a mere figure of speech, or a doubtful speculation without 
definite tests, and so guilt is determined by just such uncer- 
tain, whimsical "standards" as we have probably agreed, just 
hereinbefore, to be outrageous. Why then don't judges sec the 
outrageousncss of it and discharge all such defendants? In 
the case of actual poison we all know of the existence of con- 
clusive and certain tests and the very fact of that knowledge 
makes us sec the i>ccessily for insisting upon their application 
in every such trial. In the case of "obscenity" we kiMW of no 
such certain standard for determining the existence of "moral 
poison" and so have nax that knowledge to remind us of the 
necessity for having and applying such certain standards of 
judgment, and popular "ethical" sentimentalizing and the fear 
of the judgment of "moral" snobs precludes the efficacy of 
those other reminders which, at least to lawyers, should sufj^^est 
the indispensable necessity of mathematically-certain criteria 
of guilt. 

30I 



tJlCli^MCy' 



CHAPTER XVI. 



P 




VARIETIES OF OFFICIAL MODESTY.' 

Here we will concern ourselves only with the further 
demonstration of the uncertainty of these lawn by evidences 
taken from our variety of judicial and ofBcial manifestations 
of modesty. Later we will make some unofficial applications of 
the judicial testa of obscenity to demonstrate their utter 
absurdity. 

The early prosecutions for obscenity of literature and art 
occurred when the influence of puritanism was stronger than 
at present, and a court said : "I am for paying some respect 
to the chastity of our records.'"* 

And so the rule came to be that indictments need not re- 
produce the alleged obscenity, and that rule is still in force. 
If "records" can be literally "chaste," then they can also be 
deprived of that chastity by rape. If. on the other hsnd, 
chastity is not a real quality of records, then we have the 
spectacle of a judiciat tribunal solemnly and deliberately ere* 
sting rules of pleading upon the foundation of a mere figure 
of speech, misconceived as an analogy. The English courts 
have taken the latter view, and upon having their attention 
called to the American precedents, they pronounced our ju- 
dicial reason for them too "fanciful and imaginary."*' 

The courts of olden times seem to have given but a lim- 
ited sanction to judicial prudery or to the official moral snotK 
bery over "chastity of records." I infer this from the follow- 
ing extract taken from "An Explanation Concerning Obsceni- 
ties," written by the learned Pierre Baylc in the seventeenth 
century. He says : 

"When a nation [arc] agreed in calling some words int- 
modcst ... all the members of the society arc obliged to 
respect it. The courts of justice afford us a remarkable instance 
of it, for lawyers are not allowed to repeat such words when 

*>Hi-[,iiM<i'hMl (iiim Thr Am, /aunal bI Jiii(r>><fj, Dk., 1907, uid Ttif AtlMity 

"Lbwi, ft. .Sliorf'ttii, t Siri. w FunU. •I-Ilt (Pcnn. tttlB). Ctm. vt. Tw- 
•m. 1 C'lh. fUoii.t ta. Cam. ti. Hntmt,. IT Uoti MS. 

"Bradlamth vi. O^tn. t Q. B. flOT-SIO. Sm >1k />*«•, •> OamJoL «t 
Won. tTD, ind. Stiie ti. Hinum M Tn IK. 



Dn;ii;t--iit;y 



Google 



VABIETIES or OFFICIAL MODESTY. 

tbey plead for punishment of those who have used them in 
reviling their neighbors. They will have public modesty re- 
spected in the hearing of a cause ; but when they judge by re- 
port, they not only permit the reporter to mention the very 
words of the offender, though never so obscene, but also 
command him to do it. This I have from a counselor in the 
Parliament of Paris, who told me within these few years, 
that, having used a circumlocution (he first time he reported 
such a cause, the president gave him to understand that there 
was no occasion to have a regard to chaste ears, but to judge 
of the nature of the offence, and that therefore he was obliged 
to speak the very word it consisted in. 1 fancy the Inquisition 
uses the same method."" 

We have not to go far back in our own juridical history 
to find a very different judicial conception of modesty from 
that which is now dominant, and one wherein "nakedness was 
so little feared that adulterous women were led naked through 
the streets."" 

In England, for several centuries, before and during the 
eighteenth century, and probably later, in order to forestall 
spurious heirship, the ecclesiastical courts compelled widows, 
claiming to be pregnant by their deceased husbands, to submit 
to a physical examination by the sheriff, in the presence of 
twelve knights and as many women. Later, it became the 
practiw: also judicially to prescribe the place of her abode 
during pregnancy, and to require that parturition take place in 
the presence of five women appointed by the next of kin. 
Other women, to a fixed limit, might be present ; but all must 
first submit to a physical examination as to their own preg- 
nancy, before bcinR admitted lo the chamber of parturition." 

The above-described mode of judicially dclcrmintng ma* 
terial sexual facts, and the "judicial congress," which will be 
presently discussed, are both the outgrowth of a very ancient 
custom of juiliciaily and ecclesiastically determining the virgin- 
ity of women by physical examination. Even in the last decade 
of the nineteenth century a Morman chief of police in Salt 
Lake City, Utah, (but without statutory authority) compelled 
some young girls, arrested on a suspicion of being "street- 
walkers " — which, however, proved unfounded — to submitt 

"V i. Htitanttt aid Cnlvaf Dtetitnury, Ma. Edit, at ITST. 
"Ktnty dr Goufmant. Lt Littt 4n Maiit*«i. p. I*t. rtqaolnl fn« SDii. 
StorfMi in Piyititlttr «f St*: tt»4tHy. p. tl 

■HdMn'i Jtifku «•; Mf CifTtr. »p. n-M 

303 



(A n iiM.> 



Di(f niuu uy V.» O O^ I C 



OBSCENE UTE-RATL'SE AND CONSTITUTIONAL LAW. 



I 

I 

I 



at the police station, to an examination as to their virginity. 
A decade later a "gentile" judge of the Juvenile Court in the- 
same city ordered a like examination undrr like circumstances, 
and again without finding any evidence of los.t virginity. If 
it were not for our legislatively enforced ignorance of sexaal 
matters it would have been known that examinations of the 
hymen furnish no evidence as tt> chastity." 

Out of such practises among the early Christians evolved 
the "judicial congress," by which a wife might demand of a 
husband charged with impotency in an action for marriage 
dissolution, or the husband might offer to give ocular denran- 
stration of his capacitj- for copulation, by its consummation 
in the very presence of the court. 

"Pope Gregory- the Great, who was raised to the pontifi- 
cate in 590, appears to have been the first to confer upon 
bishops the right of deciding this description of que.<tt)ons. . . 
The great antiquity of this custom is proved by the seren- 
teenth article of the Capitulars of Pepin, in the year 75a, 
which bears a direct allusion to it ; inasmuch as that article 
established as a principle that the impotency of a husband 
sliould be considered as a lawful cause for divorce, and that the 
proof of such impotency should be given, and the fact verified. 
at the foot of the cross, . . That the 'Congress* originated 
with the church, who considered it as an efficacious means for 
deciiling questions of impotency, is still further proved by the 
President Boutrier and by other writers, who assert tlial the 
ecclesiastical judges of other times were alone empowered 
(to the exclusion of all secular ones) to take cognizance of 
cases of impotency. It is well attested that during the six* 
tccnth and seventeenth centuries all the courts of law in France 
held the opinion that a marriage be annulled on the demand of 
a wife who claimed the Congress,"" 

The erudite Pierre Bayle has preserved for us some of 
the arguments by which was justified this practise of judicial 
decrees ordering a sexual intercourse in the presence of the 
court, as a means of determining an issue of potency. He 
quotes as follows: 

"The congress is the usual and most certain proof that 
can be used in a case of impotency ; witness I.iician in his 
Eunuchus. 'Nee inimicum lidtri debet probationis genus 



"Maj. K. W. Sbuffldl. U.D.. la PtiAt Mtiint Jtonal for Jua 



■T. i 



30« 




Die'iiL-yuy 



Google 



VAUenss of official uodesty. 

quod solum est,' says Quintilian in his seveath declamation; 
at least the bishops' courts in France have admitted it, and the 
court has authorized it by several decrees, particularly that 
of the 20th of January, 1597, made again&t one who, beiog 
accused of wanting testicles, would not ^ubmit to it. . . . 

"Certainly the best precaution that can be used is to 
come to an actual trial ; especially when we are induced to it 
by a desire of peace, which will better excuse a lawful copula- 
tion, though done openly, than all clandestine doings can 
justify an unlawful divorce. Otherwise it would be an absurd 
thing to admit, for the proof of adultery, the evidence of one 
who should say that he has seen, and likewise that, in order 
to avoid the supposition of a child, the civil law should permit 
the inspection of a woman; and yet that, to justify the validity 
of a marriage (which is a thing much more important), one 
should be unwilling to see, impactum Thyrsum horto in cupidi- 
nis. . . . 

"It is to no purpose to say that his wife, pretending to 
modesty when it is too late, and upon an occasion when it 
is not necessary, objects that she would be ashamed to have 
her secret parts inspected, and to go to the congress; for she 
must be forced to it. since she has brought things to such a 
pass. 

"I add, that in stich cases the inspection is usual, so that 
it cannot be said that there is any injustice in requiring that 
which is practiced by the common law: for we learn frora 
St. Cyprian in his epistles, and from St. Augustine and St. 
Ambrose, that in cases relating to the defloration of virgins 
inspection has always been practiced ; nay, we are told by 
Oemens Alcxandrinus (7 Strom.), and by Suidas in verba 
Jesus, that the Virgin Mary submitted to il, the sanhedrim of 
the high priests having ordered that she should be inspected, 
to discover whether she remained a vii^n, and whether our 
Lord, whom they had a mind to adopt into their own order, 
should be matriculated in their registers as the son of JoMpK 
or as the son of the living God and of a virgin-mother. Chaf- 
fanseus recites the story at length in the fourth part of his 
Cataiogus ghria mvndi, distinct. 6."" 

The date of origin of this "judicial commerce" appears 
to be in doubt. In the district of the Parliament of Paris it 
was abolished February, 1677, and the judicial custom then 

■(. BiTtr'* HiifntM mi CniKal DUtUmtrj. MS Editim tm. 

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OBSCSNE LlTKtATUXe AND CONSTITUTIONAL LAW. 

reverted to the physkal examination of the sexual parts ; but 

elsewhere the trtxl by judicial commerce continued to be the 
accredited method of determining impotence. From the stand- 
point of our present modesty, the physical examination, not 
in the presence of the court, did not much improve the 
situation, for we are informed that "the men have, in some 
trials, inspected the women, and ihe women have been ad- 
mitted to inspect the men." At present, the former would 
not be deemed so intolerable if the men were physicians, but 
to have women physicians thus examine men would seen to 
us much more intolerable. This distinction, let it be remem- 
bered, has no logical foundation, but rests only in our differ- 
ence of educated emotions as associated with the differences 
of sex." 

CONFLICT AS TO THE NUDE IN ART. 

Very many people to this day entertain the same view 
about the immorality of all nudity in art as that which was 
expressed by St. Chrysostom in these words : "A naked ima^ 
and statue is the dtvil's chair."" 

The contrary view is thus expressed: "Nakedness is 
always chaster in its effects than partial clothing. A study 
of pictures or statuary will alone serve to demonstrate this. 
As a well-known artist, Du Maurier, has remarked (in 
Trilby), it is 'a fact well known to all painters and sculp*] 
tors who have used the nude model (except a few shadj 
pretenders, whose purity, not being of the right sort, has gor 
rank from too much watching) that nothing is so chaste as 
nudity. Venus herself, as she drops her garments and steps 
on the model-throne, leaves behind her on the floor erery 
weapon in her armory by which she can pierce to the gros 
passions of men.' Burton, in the Anatomy of Melancholy^ 
(Part 111. Sec. ii, subsec. iii), deals at length with the 'allure- 
ments of love.' and concludes that the 'greatest provocations 
of lust are from onr apparel." "" 

The Rev. Frederick George Lee, in an expostulation with 
the Royal Academy of Art, at considerable length endorse* 
the position of St. Chrysostom, above quoted ; but the academy 
continue.^ to hold to the contrary view. Dr. Lee in part says: 

*4. Birle'a Hiimrieal «d Critic^ Dielifi»ary OOt to HOT. Editttn ot ITSt. 
Davcapoit. On ikt Peaen ot FrproiMtliBt. pp. 17 to flO, 

"A Jail oiirf ItiaionaMt ttirnkriuwn at^'tul Nakid BrtaiU, ■>. 

■Elllfc Fiyeheltn »/ i"' MuiltHt. IS. and Bralie SymboHtm, p. t», S«« 
«l>a Pabit, at tii FrmtU Sit. p. M tlTM.) 

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VARIETIES OP OFFICIAL UODESTV. 

"Pennit me, in the remartcs being made, to start with the 
axiom that nothing should be represented by the artist's brush 
for exhibition in public which may not be rightly and properly 
looked upon by the people in general (p. 7). . . . They 
[pictures of the nude] offend against Christian morals, di- 
rectly pervert good taste, and distinctly maim modesty (p. 
lO)." 

Further on he tells us of a London prostitute who thought 
to make some honest shillings by becoming a nude model to 
the life-class of an art school. After much hesitancy, she 
disrobed, and from behind a temporary curtain stepped upon 
the model's stage. 

"On doing so, and finding herself suddenly under the 
glare of gaslight, naked, before forty or fifty students, the 
poor frightened creature threw up her arms, and with a shriek 
fell fainting on the floor. On recovering, she. uttering fear- 
ful language, dashed the money on the ground, huddled on her 
garmeis. and rushed from the place in a storm of passion."** 

Here, then, we have a clear portrayal of two distinct 
and conflicting conceptions of modesty: St Chrysostom, the 
Rev. Dr. I>ee. and the unfortunate woman representing the 
one. and Du Maurier, the professional model, and the sexual 
psychologist representing the other. 

Our obscenit)' statutes give us no information a$ to wheth- 
er the legislature intended lo endorse the prostitute's con- 
ception of modesty, or that of the clean-minded, unblushing, 
and unashamed professional models who daily exhibit them- 
selves in nudity before the life-classes of every art school in 
the civilised world. While the statute gives us no clew as to 
which conception of modesty is adopted, the judicial legislation 
upon the subject seems to favor the tatter.** 



RABELAIS AND BOCCACCtO. 

In England a publisher, to escape criminal punishment, 
has consented to destroy his stock of Rabelais and Boccaccio.** 
In Indiana a village bookseller was induced to plead guilty 
and pay a fine of $5 for sending through the mail an obscene 
book, to wit, Decameron of Boccaedo. On the strength of 
this a postoffice inspector affirms "this book has been declared 



"i-tt. Immadiity m Ari. 11. 

■/■(«»!/ VI. UHdlr*. M N. Y. <0B, W Am. Rtf. MS. 
Ptd. Ktf. J7T. 

"Sc( Buchtnan'* On Dtt€tu4lmt lute HM, p. K 



V. S. w. SmMk, tf 



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iwn-mailable."" The United Stale* District court of Utah 
also had before it an unexpurgated edition of Boccaccio on 
an indictment of its obscenity. Accompanying the book were 
some loose laid-in pictures, which the court instructed the 
jury were "obscene, lewd, and lascivious under the statute, 
and constituted the very kind of literature that the law was 
aimed against." No instruction was given to the jury con- 
cerning the uncxpurgaicd edition of Decameron, nor was the 
question of its obscenity even submitted to the jury. Tlie 
judge evidently did not consider it obscene," 

In the state courts of New York, a brief to the contrary 
having been submitted by Mr. Comstock, tt was decided that 
Rabelais and Boccaccio were not obscene.*' 

After the foregoing decision, the United States district 
Court of the Western District of the Southern District of 
Ohio fined one Stiefel $5 for sen<ling Decantfron by express 
from Cincinnati to C raw ford svi lie, Ind,*' 

Which of these conflicting views is correct, and where 
does the statute fix the standard for deciding whether Boccac- 
cio is "obscene" or not? 




BRIEFER MISCEI.t.ANV. 

In a former chapter, I called attention to the case of Mrs. 
Carrie Nation, wherein a U. S. Commissioner had discharged 
her, deciding thai her magazine was not "obscene", and the 
postal authorities continued to exclude it from the mail because 
it was "obscene." 

At this writing the case of the Art Students Le^ue Cata- 
logue is yet fresh in our memory. The Post Master General 
had declared it mailable. Postal Inspector Comstock. disagree- 
ing, made arrests under the N, Y. statute against "obscenity." 
A great protest went up over the country. The accused were 
induced to plead guilty and received a suspended sentence. 

Hereinbefore I wrote of Dr. Parke's arrest, and that he 
had been bound over to await the action of the grand jury, 
and that the Federal grand jury had determined that his bool 
"Human Sexuality" was not "obscene." He was indicted sai 
is awaiting trial. What kind of whim will determine his 
guilt? 

*See Pnnlimitdn'* A Vittlm tf ComilocMitH, pp. lfl.IT. 

■Sn R«crd in U. S. ri. Shrptri, In U, S. Otnill C'ouit o( rtppfli 
tS4. 166. 

-Matltr tt Wankinpom C».. SO N. Y. Sup. Ml. Md Si. ftrp. lU, « I_ 
tt. A. no. 

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In one of the larger cities of Massachusetts an influential 
business tnaui was ftrrested for dispensing "obscene" literature 
and pleaded guilty. His prominence and popularity was such 
that all newspapers considerately suppressed mention of the 
fact, and I am making only a vague mention of it so as not 
(o do hill) any unnecessary injury. The same book which got 
him into trouble has had a New York market for over a 
quarter of a century, and one of the chief beneficiaries of it5 
sale has been a frequent ountributor to the N. Y. Society for 
the Suppression of Vice, Mr. ComMock never tliouglit the 
book "obscene," and like Mr. Colgate (elsewhere referred to), 
tbc N. Y. vendors escape prosecution. 

These contradictions between postal officials, grand juries, 
and trial juries and between federal and state authorities under 
statutes of identical wording, could be multiplied ^eatly. 
While deeming that undesirable. I cannot refrain from calling 
attention to the case of People vs Eastman, (188 N. Y. 478) 
when wc find a divided court, each side dogmatizing against 
the other and each ignoring the statute, leaving the non-legal 
motive for the dogmas quite rarely exposed. 

IS THE BIBLE CIUUtNAIJ.V "OBSCCNS"? 
Under the laws against "obscene" literature, one of the 
first American prosecutions of note was that of the dis- 
tinguished eccentric, George Francis Train, in 1872. He was 
arrested for circulating obscenity, which, it turned out. con* 
sistcd of quotations from the Bible. Train and his attorneys 
sought to have him released upon the ground that the matter 
was not "obscene," and demanded a decision on that issue. 
The prosecutor, in his perplexity, and in spite of the protest 
of the defendant, insisted that Train was insane. If tbc 
matter was not "obscene." his menial condition was imma- 
terial, because there was no crime. The court refused to dis- 
charge the prisoner as one not having circulated obscenity, 
but directed the jury, against their own judgment, to find him 
not gnilty, on the ground of insanity: thus by necessary im- 
plication deciding the Bible to be criminally obscene. Upon 
a hearing on a writ of hibcas corpus. Train was adjudged sane 
and discharged. Thus an expressed decision on the obscenity 
of the Bible was evaded, though the unavoidable inference 
was for its criminality.** 

*F«t partu) tutnncnt ttr Mtiit«-t^fl Jrmrnti. DM«aber.lWM. p. IM: 
TllM*! piibllihcd ■ulohioctaphjr. Uj Lift m W«a> SW*t, f »*- 



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OBSCENE LtreRATUlU AND CONSTITUTIONAL USW. 

In his autotuographjr. Train informs us that a Oevelamf 
p«per was seized and destroyed for republishii^ the sane 
Bible quotations which had caused his own arrcM. Here, then, 
was a direct adjudication that parts of the Bible are criminally 
indecent, and therefore unmailable." 

In 189s John B. Wise, of Clay Center, Kansas, was 
UTCSted for sending "obscene" matter through the mail, which 
consisted wholly of a quotation from the Bible. In the United 
States court, after a contest, he was found guilty and fined. 
Just keep in mind a moment these court precedents where 
portions of the Bible have been judicially condemned as crim- 
inally "obscene," while I connect it with another rule of law. 
The courts have often decided that a book to be obscene need 
not be obscene throughout the whole of it, but if the book is 
obscene in any part it is an obscene book within the mcsning^ 
of the statute." 

You see at once that under the present laws, and relying 
wholly on precedents already established, juries of irreligious 
men could wholly suppress the circulation of the Bible, and 
in some states the laws would authorize its scinire and de- 
struction. We also have the decision of a federal court seeming- 
ly of the opinion that the Bible is "olscene," but that, not- 
withstanding this fact, a successful prosecution thereon i» 
ridiculously impossible. The decision reads thus: 

"As a result (according to the contention of the defend- 
ant's counsel] not only medical works, but the writings of such 
authors as Swift, Pope, Fielding, Shakespeare, and many 
others, even the Bible itself, would be denied the privileges 
of the United Stales mails. Undoubtedly there are parts of 
the writings of said authors, and others equally noted, whicb 
ore open to the charge of obscenity and lewdness, but any 
one objecting to such works being carried through the mails 
would be laughed at for his prudery."*' Italics are mine. T. S. 

But if "undoubtedly there are parts" of the Bible "which 
are open to the charge of obscenity and lewdness," as the 
judge seems to admit, and as John Wise and another found 
out to their sorrow, what consolation is it to the convicted 
man that his persecutors arc laughed at for their prudery, 

'(Brrt, I think, Tnln mtiai be ntetriag M the cenrlotioa of Joba A. Lwu. 
publiiliei a( tbe Toledo Sun.y 

-U. S. ». Btiinlt. Blatthfan, 9M. P«L Cu^ ItGTl. 
"U. S. w, Htfman. 58 FtH. Rep. 8BS. 

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VARIETIES OP OFFICIAL MODESTY. 

while he pays a fine, or goes to prison for conduct which be 
could not know to be a crime until after conviction? 

On the contrary side we have the opinion of an assistant 
attorney-general that the Bible is not "obscene" in any of its 
parts, but he carefully points out that the law is so uncertain 
that courts might take a different view. Under date of Dec 
4, [891, James N. Tyncr in his official capacity as assistant 
attorney-general of the United States, wrote to E. Q. Morton. 
Esq., of Daphne, Ala., as follows: 

"The law is mii<Ie up of two clauses: One concerns the 
tnailability of obscene, lewd, lascivious, or indecent publica- 
tions, and this is determinable by the postmaster-generaL 
The other branch of the law provides punislnnent for violating 
its provisions, and this is enforceable by the courts. I cannot 
therefore properly pass upon the "liability" in any case, even 
if it were submitted in proper form and detail, for that would 
be an attempted usurpation of the power of the judicial branch 
of the government ; I can, however, state to you as I now do. 
that I do not regard the Holy Bible as a whole, or any fart of 
il publuhed separately, as being unmailable within the meaning 
.■»f the laws." Italics arc mine. T. S. 

Voltaire informs us, on the authority of St. Jerome, that 
the synagogue did not permit the reading of Ezekiel till after 
the thirteenth year of age; but that was for fear their youth 
should make a bad use of the too lively description in the 
sixteenth and twenty-third chapters, of the whoredoms of 
Aholah and Aholibah."^ 

Now we demand to know whether the Bible is "obscene" 
in any of its parts, and where is the statutory test which deter- 
mines the quesion? 

TUS TAYLOK AND LAWTON CASKS. 

In Minnesota. Miss Rebecca Taylor, having a real for 
reform, encountered the interests of C. B. Gilbert, superinten- 
dent of the St. Paul Schools. As a part of her work of 
purifying the schools she thought it necessary to publish in 
a paper edited by her {Truth. May 8th, 1897) parts of certain 
affidavits which were part of a judicial record, reflecting upon 
Mr. Gilljcrl. This was at a time when he was negnttaiing for 
a position as superintendent of the Newark, N. J. public 
Khools. the intention being to circulate these papers in Newark. 
Gilbert's friends, hearing of the cnlerprisc, persuaded the 

<S(Tra*tlM Mt Tolwstiom p. ■». Edbioa •« LMidon. IfM. 

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OBSCENE LITERATVBK AKD CnNRTITUTIONAI, LAW. 



P 




posul authorities of St. Paul to refuse to transmit the paper 
because of the "obscenity" of these affidavits. Miw Taylor 
had the matter prcsemcd to the autboritie<i at Washington. 
The Assistant Attorney General for the Post-Office Depart- 
ment rendered a lengthy written opinion to the effect that the 
matter was not "obscene" and the pajter therefore mailable. 
The Assistant Post Master General accordingly instructed the 
St. Paul post-master to transmit the paper. Thereafter A. W. 
Lawton, editor of TMe IVhiu Bear Breest, republished from 
Truth the larger part of the same affidavits. 

Notwithstanding the opinion of the Washington postal 
attthorities. the United States Attorney at St. Paul secured tfie 
indictment of both editors for sending these "obscene" affi- 
davits through the mail. They had a separate trial. In neither 
case was there any question about the publication or maihng, 
and the only question for the jury was. "Is this matter 
ob-sccne?" The Taylor jury answered "no" and Miss Taylor 
was acquitted. The Lawton jury answered "yes" and Lawton 
was found guilty and punished. 

Again it is self-evident that these contradictory verdicts 
were not derived from applying any statutory criteria of guilt, 
but from the total absence of such criteria, and a mere differ- 
ence of whim on the part of the two juries. The opinion of 
the Attorney General's office was offered in evidence, and 
excluded as immaterial. As between these juries and the U. S. 
Attorney General, who was right? Where and how does the 
.statute decide? How can any man know even now if it is a 
crime to send this matter through the mail? If the Federal 
Statutes, as interpreted and applied by Ike Allomey GenerxU 
of the United Stales, do not safeguard against prosecution, even 
in the Federal Courls, then how can we have such a thing as 
"law" or "due process of law"? How can this law be "the 
.sanctuary of the innocent"? 

"cupid's yokes." 
Another book, the hi.'»tory of which strikingly illustrates 
the outrageous uncertainty of the laws against "obscene 
literature," i.s one entitled Cupid's Yokes; or. The Binding 
Forces of Conjugal Love. An Essay to Comider Some Moral 
and Physiological Phases of Love and Marriage. Wherein 
is Asserted the Natural Right and Necessity of SexuaJ Self- 
Covemment, by E. H. Heywood. The author was a rather 



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ICIAL UODESTY. 



'Conspicuous co-laborer of such abolitionists as Parker and 
Carrison. He was also lh« author of considerable controver- 
sial literature upon other MibjecU. He was convicted June 
25, 1878, for sending his pamphlet, Cupid's Yokes, through 
the mails, and sentenced to two years at hard labor. At- 
torney-General Devens did not consider i( "obscene." He 
wrote, under date of Jan. 13, 1879: 

"I do not confound it with those obscene publications, 
the effect and object of which is to excite the imagination and 
inflame the passions."" 

President Hayes in December, 1878, pardoned Mr. Hcywood, ( 
— no doubt because to him the pamphlet did not se«m obscene. 

Before this, D. M. Bennett had been arrested, under the 
New York state statute, for selling Cupid's Yokes, and (he 
prosecution had been dropped. Just before the pardon of 
Heywood, Bennett was again arrested, this time for sending 
Cupid's Yokes through the mails. He was convicted,*^ and 
President Hayes again signed a pardon — which, however, 
was not issued, because of some representations that Bennett 
had also been guilty of adultery.** 

In April, 1878, Mrs. Abbie Dyke Lee was tried under the 
Massachusetts slate statute against selling "obscene" litera- 
ture, which consisted of Cupid's Yokes. The Jury disagreed, 
the case was thereupon dismissed, and the book continued, 
without molestation, to circulate in Massachusetts. In 1883, 
Heywood was again arrested for sending Cupid's Yokes 
through the mails. Judge Nelson, after hearing the pamphlet 
read, said: "The court is robust enough to .stand anything 
in that book," and refused to admit the government's plea that 
it was too "obscene" to spread upon the records. later instruct- 
ing the jury 10 acquit on ihe first two counts of the indictment, 
those relating to Cupid's Yokes and the It^ord Extra. 

Here, then, we have two convinctions, one jury disagree- 
ment and consequent dismissal, one instruction to acquit be- 
cause the book was not "obscene," and one pardon upon the 
same ground, and one abandonment nf prosecution. There was 
never any dispute about the contents or meaning of the book. 
The uncertainty is therefore wholly in the law. After 6ve 
arrests — resulting in one abandonment of prosecution, two 

fin Liberty *>< P»nty. p M. 

■S« f. J. ■■!, Bt»^ii. f*A Cti* Nt. lUn. 

■*S« Llirrlj tm4 fmnly. p U 

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di$char:gC5 as not guilty, two convictions — the opinions of the 
attorney general of the United States and of the 
United Stales circuit court, and the judicial "constructions" 
of the statutes againiit "obscene" literattire as applie<l to tbi» 
particular book, no man on earth can tell, even now, whether 
it is a crime to send Cupid's Yokes through the mail. If any 
one claims to know whether the law condemns this book. I 
ask him to point to a statutory test which is decisive. 

Even if in every case Cupid's Yakt's had been declared 
not to be "obscene," still this would be no protection to the 
next vendor of the book, because the next jury might 
reach a different conclusion as to what the law prohibited. 
Indeed, the courts might, as courts have done, instruct the 
jury to disregard a precedent of acquittal by another court 
deciding that the same matter was not "obscene." This I 
understand to be the eJlect of all tests of obscenity, and also 
of the following charge from Judge Butler, Eastern District 
of Peonsylvania, as unofllicially published by Mr. Comstock 
from the official stenographer's report. The judge charged: 
"It is wholly unimportant what may have occurred elsewhere 
in the consideration of this question, if it ever has been con- 
sidered ; you have nothing to do with it at this lime.""* 

Prof. Andrew D. White tells us that: "At a time when 
eminent prelates of the Older Church were eulogizing de- 
bauched princes like Louis XV and using the unspeakably 
obscene casuistry of the Jesuit Sanchez in the education of the 
priesthood as to relations of men and women, the modesty of 
the cliiirch aiitliontics was so shocked by Linnaeus' proof 
of a sexual system in plants, that for many years his writings 
were prohibited in the Papal States and in various parts of 
Europe where clerical authority was strong enough to resist 
the new scientific current."'" 

Now, one may with impunity discuss the sexuality of 
plants, but a publication of the writing of Sanchez and others 
like him has landed good men in jail, though it was done for 
the best of motives.'" 

The foregoing record illustrates and demonstrates the 
baneful uncertainty and conflicting results coming from an 
exercise of arbitrary judicial power in determining innocence 
under a penal statute which fails lo furnish criteria of guilt. 

■*■!/. 5. t$. Shtrmtn- Sh Mermti. Kei Ati i" Liutotvt, p. U. 
■"Hin. H t*4 Warfart »/ Stttmct »»* TtutUgy. *. >. »■ M. 
»QiHHi n nkklia L. B. • Q. B. Mft,— U. 5. vl Price, IW U. S. 111. 

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VASIETIKS OP OPTICIAL MODESTY. 

Tests of obscenity were never deduced from tlie stntutes, birt 
read into them. The decisions express only ex fost facto 
I^»laiive judgments a» to what was believed ought to he the 
result as applied to the facts of each given case. The un- 
certain statutes furnish the pretext, and the judicial legislation 
creating equally uncertain "tests" of obscenity furnishes the 
unconstitutional means by which the emotionally demanded 
result is attained and "justified." These miscalled "tests" are 
the mere empty verbalisms by which judges attempt to 
objectiviic their emotional prc-disposition, and they are con- 
sidered cogent only because responding to the prior feeling- 
conviction which called them into being. The "tests of 
obscenity" are seldom the real reason for the decision, but 
arc a misleading consequence of it. Our emotions, and the 
public demand that something be done, produce that uncon- 
scious 'hamming, to consumate which meretricious and 
factious "tests of obscenity" are judicially and unconstitution- 
ally created and interpolated into the statute. _ < ■ 

A PSYCHOLOGIC STUDY OF MODKSTV. "" f' AAJt^I ^'' 
What then is the nature of modesty which is row seen ~ 

to manifest itself in such illimitable and ever changing 
variety? What is the relation of that essential nature of 
modesty to the practical problem of determining the existence 
of "obscenity" in literature and art by the test of shocking 
modesty? What is the moral value of a shock to modesty, as 
a means of determining (he existence of "obscenity"? These 
matters will now be discussed. After this will come a demon- 
stration of the uncertainty of the "moral" test of obscenity, 
and this in turn will be followed by a discussion of the legal 
consequences which must flow from this wholly indeterminable 
nature of the "obscene" and the consequent total absence, 
either in the statute or the unconstitutional judicial legislation 
under it, of anything like uniform criteria of guilt. 

The Rev. Dr. Stoddard has told us that "All visible signs 
an common to converted and unconverted men, and a relation ■ 
of experience among the rest." To this the Rev. Jonathan 
Edwards adds : "No external manifestations and outward ap- 
pearances whatsoever that are visible to the world are infal- 
lible evidence of grace." 

■•ni(^bliih«4 r(«g Tk* Mtittt* CtwmrU. Jm.. IMS, 

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What is thus true of rdigicm is equally true of modesty. 
No external manifestation or outward behavior, nor the habit- 
ual presence of clothing or its absence, nor the verbal relation 
of experience, nor crimson blushes are unmistakable criteria 
of a commendable (that is, healthy minded) modesty, and all 
are consistent with the highest degree of nasty mindcdaess. 
The Irue modesty of healthy mindeilness is but a mental ani- 
tude, which in the presence of healthy nature always maintains 
an impcrturb:ibtc poi^e, akin to the inward grace of the religion- 
ist, and which can not be infallibly inferred from appearances 
or conduct. Like health in any other particular, it eludes 
exact dclinitton, because it fades so gradually into its opposite 
of disease that none cin tell precisely where one ends and the 
other begins. 

We can not assume that all have the desirable healthy 
nio<iesty who claim il or who can blush. We may, however, 
analyze the symptoms and trace them to their source, and so 
we can, at least in an abstract way, determine the criteria of 
the modesty of a healthy-minded, physically perfect man. 

The first form of spurious modesty I shall designate as 
the modesty of unconscious and uncoerced sympathetic imita- 
tion. This, perhaps, is oftenest found in the (simulated) 
modesty of children, and not infrequently in adults. If yoo 
should ask them why they denounce certain acts as immodest 
they could give no reply except that "they say" it is so. In 
this form there is no emotional aversion nor any fear of the 
judgment of others. It is the simplest form of imitation, 
unconsciously enacted and because not so fixedly habitua] 
as to be involved with the emotional life, therefore it does ' 
not yet induce objective moral valuations and is not really 
esteemed a virtue. Here there may be a most perfect healthi- 
ness of mind, which, however, for the want of a definite ap- 
preciation of the factors and evidence of its health, and s 
consequent ignorance and absence of all consciousness of 
definite standards of healthy mindcdncss in relation to sex or 
modesty, is non-assertive and may be led to imitate the verb- 
ally expressed sex -overvaluation of the most unhealthy sen- 
nalists, of either repression or indulgence. 

When this modesty of an unconscious, ignorant, symps* 
thetic imitation becomes habitual and evolves to .«e If -conscious- 
ness, and acquires associated emotions, with all the other fac- 



316 



Distae~cyV^»* 



VARIRTIBS OF OPFICIAL HODRSTY. 

tors unchangfed, it becomes the conscious modesty of imitation 
through cowardice. This, perhaps, is the most general and 
popular kind of modesty among adults, and is sbout the only 
kind of modesty that has received scientific study, and has 
often been generalized as being all that there is of modc»ty. 

An idea related lo sex, the harboring of which would in- 
voke adverse criticism, may and usually docs produce an emo- 
tional fear, which is readily transfused into an emotional ap- 
proval of an opposing idea, and this emotional approval is 
quite apt to have its intensity determined by the degree of 
fear-emotion, which it really is, and the degree of the indivi- 
dual's sexual hypcracsthcticism. 

Let us now quote the statements of intelligent observers 
as to this form of modesty, which is a mere imitation through 
fear. In the seventeenth century I find the scholarly Peter 
Bayle making this observation as to modesty: "An honest 
woman will justly be offended if any one tells her an obscene 
story; but she will not btame an historian for relating it, pro- 
vided he abstain from filthy words. An historian speaks to 
the public, and not to such and such a woman in particular, 
and therefore what he says is not offensive, as it would be 
if it was said in a conversation or in a letter. In these two 
last cases he xvould have no very favorable notion of Ik* 
modesty of those to whom he speaks or tvrites, and that if if 
that gives offense.""*. 

In this analysis it is clear that such modesty consists only 
in a fear of the judgment of those who know that she suffers 
in her presence the telling of that which those others esteem 
"obscene." The "obscenity" disappears — that is. the offense 
is non-existent — when the fear of that judgment is non-exis- 
tent, either ideally or actually. 

When some dominant character, through fear of him or 
her. has forced generally upon any community some particular 
standard of "modesty," we have the condition described by 
Dr. Havelock Ellis in these words: "Modesty thus comes to 
have the force of tradition, a vague but massive force, bearing 
with special power on those who can not reason."'** 

It seems lo me tlutt the following quotation is pregnant 
with the same suggestion that a healthy natural woman is not 
ashamed to discuss sex or see sex in the presence of men, un- 



int. 



•"HitMnVal Mrf Cniwar Ihel., Vol. V. pM* »>■ Editloe al Lntd.. A. D. 



Dicli^ency 



OBSCENE UTBXATVRK AND CONSTITUTIONAL LAW. 

less first reminded that the is a woman and that therefore 
the must fear adverse judgment unless »he acts differently 
than she would do if unafraid or if she were a man, 

"I have conversed, as man with man, with medical men 
on anatomical subjects and compared the proportions of the 
human body with artists, yet such modesty did I meet with 
that I was never reminded by word or look of my sex, of tbe 
absurd rules which make modesty a phsrisaicat cloak of weak- 
ness. And I am persuaded that in the pursuit of knowledge 
women would never be insulted by sensible men and rarely 
by men of any description if they did not by mock modesty 
remind them that they were women ; actuated by the same 
spirit as the Portuguese ladies, who would think their charms 
insulted if. when left alone with a man, he did not at least 
attempt to be grossly familiar with their persons. Men are 
not always men in the company of women ; nor would women 
always remember that they arc women if they were allowed 
to acciuire more understanding."'** 

The same thought that fear of the judgments of others 
is the essence of modesty comes from another woman. Mad- 
ame Celine Rcnooz, in a recent "elaborate study of the psy- 
chological differences between men and women," says: "Mod- 
esty it masculine shame attributed to tvomeit for two reasons: 
First, because man believes that woman is subject to the same 
laws as himself; second, because the course of human evo- 
lution has reversed the psychology of the sexes, attributing to 
women the psychofogical results of masculine sexuality. This 
IS the ori^n of the conventional lies which by a sort of social 
suggestion have intimidated women. They have in appearance 
at least accepted the rule of shame imposed om them by men, 
but only custom inspires modesty for which they are praised. 
It is really an outrage to their sex."'" 

In support of her views the authoress points out that the 
decolette constantly reappears in feminine clothing, never in 
that of the male; that missionaries experience great difficulty 
in persuading uncivilized women to cover themselves; that 
while women accept with facility an examination by male 
doctors, men cannot force themselves to accept examination 
by a woman doctor, etc., etc"* 

Professor James of Harvard is more specific in his statc- 

■■■WDntiKnircTiti. "I'imd'fetitu ef I** R<(A(i nf ll'umtit." |>wc 131. 
•^PiyihaUpt CaiBfrr it Hemtmt *i it la Fimmt, pagn SS->T, rc^Mad 
<raa KtlicV ftytk^lttt 't St* <Mudnly). piai t. 

•■Kllit'i Pift'ittety tf St* (McHttry). p*K B. 

.^18 



k. 



Dnj'ily;! uy ' 



.00^ Ic 



VAKIETtm OF OFFICIAL MODESTY. 

ment when he inforau us that modesty is "The application 
in the second instance to ourselves of judgments primarily 
passed upon our mates."'"* 

Ribot concurs tn these words: "I look upon it [modesty] 
as a binary compound capable of being resolved into two pri- 
mary emotions — sclf-feclitig and fear. The emotional state 
which lies at the root of modesty, shame and other similar 
manifestations arises from the application in the second in- 
stance to ourselves of a judf^ent primarily passed upon 
others. • • • Modesty can not be oon.iidcred an instinct 
in the strict sense of the word, i. c, as an excttomotor phenom- 
enon. Under the influence of custom, public opinion, civili- 
zation it passes through its evolution till it reaches the New 
England pitch of sensitiveness and range, making us say stom- 
ach instead of belly, limb instead of le^ (even limbs of a 
piano], retire instead of go to bed, and forbidding us to call 
a female dog by name,""* 

In practically every discussion of modesty the $ame coo- 
chision is implied, even when not expressed. 1 will quote 
a few illustrative statements: "But here we come round to the 
altruistic and moral emotions, for shame is present only where 
the individual has a desirt to please and is pained at the dis- 
approval of others"**^ 

Darwin expresses his belief "that self -attention directed 
to personal appearance in relation to the opinion of others," 
and "not moral conduct," is the fundamental clement in shy- 
ness, modesty, shame and blui^hing."* 

Professor Thomas, of the Chicago University, expresses 
himself thus: "Now, taking them as we find them, we know 
that such emotions as modesty and shame are associated with 
actions which injure and shock others and show us off in a bad 
Hght. • • • Wben once a habit is fixed interference 
with its smooth running causes an emotion. Tlie nature of 
the habit broken is of no importance. // it were habitual for 
grandes dames to go barefoot oh our boulevards, or to wear 
sleeveless dresses at high noon, the contrary would be embar- 
rassing. . . . 

"Our understanding of the nature of modesty is here 
^rther assisted by the consideration that the same stimulus 

•^PnnrtfUi at ftjtttirtv. Vol II. pM< (H^ 

'*Pirtt"iUn af tkt £>iariDHi, MCi> tllltS. 

"■WlUlmn't IfrafHOaiMl E'kir'. **»■ 

■'fifvruiAM af tmttiam •■ Man »ni AmimtU. pMn nO-WT. 



Dn;li:t.-ilt;y 



.00^ Ic 



OISCKNK UreSATURK AND CttKSnTUTIONAL LAW. 

does not produce the same reoelion under all dreumstonces^ 
but, on the contrary, may rcflult in totally contrary effectt. 

. , . Similarly, modesty has a two-fold meaning in sexual 
life, in appearance it is an avoidance of sexual allention. and 
in ntany moments it is avoidance m fact. But we have seen 
in the case of the bird that the avoidance is at the pairing 
season only a part of the process of workinp up the organism 
to the nervous pitch necessary for pairing." (No doubt it is 
this same thought as applied to man, which, in about 1751. 
induced tielvetius to say: "Modesty is only the invention of 
a refined voluptuousness,"] 

"Modesty with reference to personal habits has become 
so ingrained and habitual, and to do anything freely is so 
foreign to woman, that even freedom of thought is almost in 

the nature of immodesty in her. 

Dr. Havclock Ellis, probably the world's most famous 
specialist in sexual psychology, has this to say: "That modesty 
— like all the closely allied emotions — is based on fear, one 
of the most primitive of the emotions, seems to be fairly 
evident.""* 

"immodesty" Ko provocative. 
Among uneducated people, the test of shock to modesty 
is esteemed of importance because, being founded on their 
feelings, they confound the moral valuation of circulatittg 
a disagreeable idea, with the moral sentimental ism associated 
witli the accused presentation. This makes it desirable to- 
make a little inquiry into the relation of modesty and sensual- 
ism. Tlie more precise question of standards of morals will 
be left for a later discussion. Here it will suffice to show 
that thoughtful men dispute the mob's opinion that nudity is 
usually provocative of lust. 

The poets, more than most other people, meditate upon 
love and the associated subjects. It is not surprising, there- 
fore, to find that some of these should have hit upon the same 
thought. Here is a sample: 

"The maid, who modestly conceals 

Her beauties, while she hides, reveals. 

Give but a glimpse, and fancy draws 

Whale'er the Grecian Venus was. 

From Eve's first-fig-leaf to brocide, 

"•Flbln for (he Fctnilr Set <!lrd EdlUDn. 1T«S] pp. Sa-M. 
"'ShiMit m titr Piydurhgy ef Stt (HodolT), l>P- )-*T> 

3» 



D^IiiInAToO^Ic 



VARIKTIBS or OFFIOAL UODESTY. 

All drc&s was meant for fancy's aid, 

Which evermore delighted dwells 

On what the bashful nymph conceals. 

Whenever Celia struU in mail's attire. 

She shows too much to raise desire; 

But from hoop's bewitching round, 

Her very shoe ha* power lo wound. 

The roving eye, the bosom bare. 

The forward laugh, the wanton air, 

May catch the fop, for gudgeoni atrilu 

At the bare hook, and bait, alike; 

While salmon play regardless by. 

Till art, like nature, forms the tlj. 
• •••••• 

To wiMr heads attention lend, 

And learn ihis lesson from a friend. 

She who with modesty retires. 

Adds fuel to her lover's fires. 

While such incautious jilts as you. 
By folly your own schemes undo.'"* 
Burton (Anatomy of Melanchoty, Part III, Sec. 2, Sub. 3, 
is quoted by Ellis, Modesty, page 39) as writing that "The 
greatest provocations to lust are our clothing." Burton further 
says: "Some arc of the opinion that to see a women naked 
is able of itself to alter his affection, and it is worthy of con- 
sideraiion, saith Montaigne, the Frenchman, in his essays, that 
(he skillfullest master of amorous dalliance appoints for a 
remedy of venerous passions a full survey of the body; which 
the poet insinuates: 

The love stood still that ran in full careirc, 
When once it saw those parts should not appear.'"* 
If, u all the scientists seem agreed, modesty is but "the 
application in the second instance to ourselves of judgments 
primarily passed upon others," then we have ready explana- 
tion why, though there are no definite criteria of guilt, the 
verdict is quite uniformly "guilty." The defendant is de- 
nounced by the prosecuting attorney, and the widely adver- 
tised morality of "vice-societies," This avalanche of right- 
eous vituperation is often reinforced by an impassioned stump 
speech from a popularity- seeking judge, who abuses the op- 

"'Fabin to> Uw Fcnale Sex <J«9 ZiUin, I7M). pp. M«. 
"•BnMn*! <<aa«M9 «t Mtltmtlufy. Vol. II. p«* I7i. 

3ai 



Dffiiijyytiy 



Uoo^lc 



OBSCEMK UTEBATtlBE AND CONSTITUTIONAI. LAW. 

portunity given him to instruct llir jury. Thus ihe jury is in- 
fomMd how contemptible ihcy will be in the eyes of these ex- 
emplars of "virtue" should iliey disagree with them as to the 
"obscenity" of the book under invc^tigatio^. Neither ihc stat- 
ute nor his own knowledge of the psychology of modesty. 
furnish him with any criteria of obscenity; the juror, there- 
fore, is wholly without the instruments by which to fortify 
himself against the terrible charges that are already laid at 
his door <;hould he find the accused publication to be unuhscen& 
Thus from the sheer absence of any other standard of judg^ 
ment he renders a verdict of guilty, solely to insure the esteem 
of the prosecutors. This is tlie inevitable result of the ab- 
sence of statutory criteria of guilt, and of submitting to the 
jury's modesty the question of what shall constitute the essence 
of guilt. 

That there is no such uniform and necessary connection 
between "immodesty" and sexual "immorality" as is popularly 
supposed and judicially assumed, is further testified to by 
other scholars. 

Dr. R, W. FeWdn remarks concerning Central Africa, 
that he nowhere met with more indecency than in Ugabda, 
where Ihe death penalty h inflicted on an adult found naked 
in the streets. To this we may add Ihc testimony of H. 
Crawford Angus, who has spent many years in Azimba land. 
Central Africa. He writes: "It has been my experience that 
the more naked the people, and the more, to us, obscene and 
shameless their manners and customs, the more moral and 
strict they are in the matter of sexual intercourse.'"" 

Among the Druses, where incest is practised, divorce 
is easy and Ihe elect, or spiritualists, have most licentious 
and sacred debaucheries, the women yet wear veils and their 
faces are unseen except by immediate relatives."* 

"There is a great truth underlying the fact whicli the 
Governor of Uganda has just prdclaimcd, namely, that the 
more clothes the Bakcdi women wear the less moral they are. 
Among all the unclothed Nilotic tribes, he says, a notable 
degree of morality exists ; whereas those who have always 
been addicted to wearing apparel are of notoriously lax habits. 
It is the same everywhere.""" 

•"Bunan'i ^■alm|> af Utlaniliaty, Vol. II, pafT STl. 

"""WnmBH." hy Tklmer. put- in. IJ. 

"•/■e/l AfoIJ Gajtut. now tt>|ueccrl from Trvtn Umlmr. M*T >■ I'M- 

341 



Dnjujwiiiy' 



.OfJ^IC 



VARIETIES OP OPFICIAt. MODESTY. 

These testimonies denionslrate quite conclusivHy that 
there is no necessary connection between "immodesty" and 
sexual orthodoxy, and that wilh those in whom a healthy- 
minded naturalness tuts not been tiiinled by a prurient prudery, 
the absence of clothing does not usually operate as a pro- 
vocative to lu^t, and thus we see that the passions are best 
stimtdated by conccjilmeni and myMery. 

It follows quite logically from what has preceded that 
those who have become dominated by the idea that the sex 
impulse is a deplorable passion, and therefore a condition to 
be ashamed of, will manifest shame proportionate to the 
intensity of their own scx-scnEitivvncss, that they so intensely 
desire to conceal. This .sexual hypereittheiicism is more than 
the foundation of modesty and the determinant of the quality 
and quantity of iLs resultant shame. ThiK siinic sensitiveness 
to suggestion is also the foundation of psycho-sexual impo- 
tcncy. Tlui* il comes thai excessive lewdness very often in- 
duces excessive modesty and shame, and these in turn, by the 
very fact of their abnormal intensity and the resultant ab- 
normally intense fear, produce a psychic inhibition ugainst the 
natural physiological consequences of an otherwise appro- 
priate objective sex-stimulus. 

When this modesty, of diseased nerves, and a consequent 
abnormal lasdviousness, have produced psychic immunity to 
3 normal sex- stimulation, their victims often are credited, by 
themselves and by others, with being unusually "virtuous," 
This erroneous conclusion involves two false assumptions. 
The first of these is the implication that incapacity for normal 
and healthy activity of any bo<lily organ can by any possibility 
be credited with moral value : the other false assumption is 
that mere psychic impotence as to normal sex- functioning im- 
plies general indifference to sex, for nothing can be farther 
from the facts as they are known to sexual psychologists. 
Practically all sex-perverts are hvpereslhetic. and probably a 
majority of them arc indifferent to or impotent as regard* 
normal indulgence. The prude who. through fear, has be- 
come psychically unresponsive to what oiberu'ise would be an 
effective sex-stimulus, has not been deprived of even the least 
quantity of the subjective conditions of excessive lasdvious- 
ness, cither psychological or physiological. Since a psychic 
inhibition agatn»;t Home particular manifestation of the sex- 



3»3 



tiic'i^ency 



Google 



OBSCENE LITEaATURE AND COKSTlTUTtOKAl. LAW. 

impulse does not at all imply any decrease in the imperative- 
ness of the impulse itself, it would seem to follow that 
wherever excessive modesty imposes a continuing inhibition 
against normal sexuality it i$ almost certain to promote aod 
be the accompaniment of the perversion of the sex impulse^ 
All writers upon sexual psychopathy have given us abund- 
ant examples to show the concurrence of excessive modesty 
and perverted sexuality. 

I think we may consider it an established (act thai the 
most prevalent kind of modesty is but a manifestation of con- 
scious cowardice, quailing in fear of the anticipated adverse 
judgment of those whose favorable opinion is most valued. 
Also that in its more acute manifestations modesty and shame 
will be intense just to the degree that the sexual hyperesthetic- 
ism (lewdneis) is excessive. So it comes to this, that all 
genuine modesty and prudery are founded on excessive sen- 
suality, and all mere seeming modesty and prudery are the un- 
reasoned and fear-induced imitation of the former. 

Furthermore, if this theory is correct we should expect 
that the most vehement denial of it must come from the very 
persons who feci that by our analysis we have uncovered the 
very thing in themselves which they arc most anxious to con- 
ceal. As further evidence of the correctness of our theory it 
will, no doubt, appear that those who are mo.st vehement in 
their protestations against it, because their weakness has been 
discovered, will not base their denials upon any psychologic 
study of modesty objectively considered. In other words, 
their denial will rest wholly upon subjective authority — that is. 
upon their personal and emotional desire that others shall 
not believe the theory true, at least as to themselves. 

"They [prudes] do not recognize that normal, well- 
ordered amativeness is a physiological and moral virtue, while 
manifestations of spurious spirituality arc often induced by 
some perversion. Indifference to amatory pleasures is fre- 
quently professed by those who resort to artificial stimulants. 
Prudery only betrays impurity. Prudery is the affectation of 
innocence, and consequently implies guilt. To the really iniK>- 
cent and pure all things are pure. Only the immoral or those 
most occupied with amatory delights feign to look with con- 
tempt upon the generative organs and to despise their won- 
derful functions. 

"Yet the prudery and obscenity of such as these have su^ 

3S4 



., V" 'V ■■viv. 



VARIETIES OF OFFICIAL MODESTY. 




ceeded in distorting our judgment on questions of sex in such 
a way that any desire for scientific instruction in these sub- 
jects lias become inextricably confused with ideas of prurience 
or impropriety. Matters pertaining to the generative func- 
tions and to the sexes, whicb were formerly discussed with 
perfect familiarity and directness, with no thought of impro- 
priety and immodesty, as every reader of ihe Bible or other 
ancient classics well knows, are now excluded even from 
treatises on physiology or gynecology. But for the anato- 
mists and alienists nothing would be known about the physiol- 
ogy of normal love. The zealots wish to persuade us that the 
population of the earth increases by the stork method. These 
victims of a diseased imagination and perverted moral sense 
iiave succeeded in creating a false modesty which hinders free 
discuBsion,'"* 

Thus far we have considered perverted sexuality only as 
an associate and as a consequence or cause of prurient prudery. 
We have not yet arrived at the origin of prudery and modesty 
when racially considered. By the way. it is worthy of remark 
that prudery and modesty are not in the least distinguishable 
except that as an epithet prudery is applied to those particu- 
lar manifestations of modesty which come only from others 
and which we do not happen to like. 

The question still remains, How came the first prude into 
existence? What manner of man first inspired tliat unnatural 
shame for healthy-minded sensualism by making others afraid 
■of his criticism, should they admit by word and act their own 
healthy naturalness? Here I cannot take up this question, 
except to hint my conclusion that, phylo|;cncticatlj. human 
modesty, as we now understand it. had its principal sources in 
sexual hype rest bet icism and a perverted sex-impuhe, and its 
secondary source in clothing, religious customs, etc. But that 
must be left for another discussion. 

The foregoing considerations, it is believed, demonstrate 
that modesty is but the fear-imposed judgment of others, and 
in itself i» devoid of moral value and from its very nature is 
incapable of furnishing anything like a uniform or certain 
criterion of "obscenity" such as is essential to the validity of 
the statute in question. 



'H'MMit.*' by Tilnvr. iim** 10. IL 



3»5 



Diciiiuuuy 



Gooi^lc 



VARIETIES OF CRITERIA OF GUILT. 




Our jtudy uf gj^ychology, ethtMgraphy, and juridical 
history, in relation to modesty, has revealed the fact that the 
statutory words "obscene and indecent," etc., do not in and 
of themselves fumt$h either uniform, or any, criteria of 
guilt, such as should enable every man of ordinary under- 
standinf;. under all circumstances, to know with certainty 
whtftlier or not his proposed conduct i^ penalized, and without 
which certainty in the criteria of ^ilt no penal statute can 
be "due process of law." 

It remains to inquire how far the unconstitutional judicial 
legislation in the creation of criteria of guilt has supplied tbe 
necessary certainty in the tests of obscenity. Tliat this is not 
accomplished is the opinion of hundreds who have been con- 
victed for a mere ditlcrencc of opinion with the censors, as 
it seemed to them, and some of these have left valttable 
and intelligent protests. But these are not alone. 

At the National Liberal League's convention held in 
Philadelphia July 1st to 4th, 1876, the following resolution 
was adopted: 

"Resolved, That this League, while it recognizes the great 
importance and the absolute necessity of guarding by proper 
legislation against obscene and indecent publications, what- 
ever sect, party, order, or class such publications claim to 
favor, disapproves and protests against all laws which, by 
reason of indefiniteness or ambiguity, shall permit the prosecu- 
tion and punishment of honest and conscientious men for 
presenting to the public what they deem essential to the public 
welfare, when the views thus presented do not violate in 
thought or language the acknowledged rules of decency: 
and that wc demand that all laws against obscenity and 
indecency shall be so clear and explicit that none but actual 
offenders against principles of purity shall be liable to suffer 
therefrom."' 

tCMMtodi'* Pnud* RzpoNd. page 446. 

326 



Dicrlisaa cy 



Google 



VASIHTtES OF OUTEUA OF CUILT. 

The annual meeting of the National Purity Federation, 
Oct. 11, 1906, unanimously adopted a reM>ltilion praying for 
relief from tlie evils of thi-i uncertainly. From ihc preamble 
of this resolution I quote the following: "In view, however, 
of the fact that Purity workers are constantly placed in 
jeopardy because of the uncertainty of the judicial test of 
obscenity and because these laws have in some instances been 
made the mean» of injustice and cruel wrong; and in view 
of the fact also that the indefinite character of the law 
renders it impossible for anyone to know whether he is acting 
within the law, or is violating the law, and because the law 
has been made a menace and a hindrance to many earnest 
workers whose efficient help is most seriously needed," etc.* 
Similar resolutions, complaining of the uncertainty of the law 
and ofTering defmile suggestions for amendment, were adopted 
by the joint .session of the medical and surgical sections of 
the State Medical Society of Illinois.* 

The foregoing statements arc entitled to great weight 
because in each case they come from persons who expressly 
approve the general purposes of the taws in question, and 
their complaints are in the nature of an admission against 
interest. 

Lawyers have also noted the difficulty of knowing what 
is penalized. Thus Edward Livingston, one of the greatest 
lawyers of his time,' while revising the penal code of LouiU- 
ana, when he came to that class of offenses against "morals," 
wrote to a distinguished colleague, thus: "There is another 
evil of no less magnitude, arising from the difficulty of 
defining the offense. Use the genetal expression of the 
English Law. and a fanatic judge with a like-minded jury 
will bring every harmless levity under the lash of the law. 
Sculpture and painting will be banished for their nudities, 
poetry for the warmth of its descriptions, and music, if it 
excites any forbidden passion, will hardly escape."* 

A noted English law-writer makes this comment: "It is 
impossible to deRne what is an immoral or obscene publication. 
To say that it necessarily tends to corrupt or deprave (he 
morals of readers supplies no definite test"* 

tTht Lighi. Nw>„ l»h 

tUtJkal FttfrJ. Ott. I»K IfOT. p. S»M01l 

*&w Ciflmmbf L—i Rnitm. ^ JI. Ju. I«07 

•Life o( Edward Liviaction. \n Ouu. Hann BihI. 9. M9. 

*1^lmon. Libtity at Pn** and SpMch. Mt.. p. % 



3»7 



D,C-,.-«Ut:yC0Ot^lC 



OnSCSNK LtTERATVIR AND CUNSTITUTIONAl. LAW. 

There is also judicia] admt»«on of the uncertainty and 
consequent arbitrariness of the statute. Thus it U said, "the 
law is arbitrary."^ in a concurring opinion in the leading 
English case this language is used: "Therefore it appears 
to me very much a question of degree, and if the matter were 
left to a jury, it would drpcnd very much on the opinion, 
Vfhieh the jury might form of thai degree in such a publica- 
tion as this,'*' One American court speaks of "the elasticity 
of the language used by Congress, necessarily ( ?] so general 
in its description of the offense."* Another court admits 
that, "Whether act or language is obscene depends upon 
drcumstance*.'"" which circumstances, however, are not defined 
in the statute. Again it is declared : "The views that different 
persons might entertain of the tendency and effect of such 
publications are so larioiis that theM questions ought to be 
submitted to a jury,"" and so, instead of being a matter of 
statute law, every case in effect "is one which addresses itsdf 
largely to your (the jurors'] good judgment, common sense, 
and knowledge of human nature and the weakness of btiman 
nature."** The same thought comes from another court: 
"Now what are obscene, lascivious. lewd, indecent publications 
is largely a question of your own conscience and your opin- 
ion,"^* and not a matter of statutory definition. "The question 
whether the contents of the publication in question come within 
the prohibition of the statute is one upon which there might 
be a difference of opinion,'"* because the statute has not 
defined the crime. Again: "The question of obscenity in 
any particular article must depend largely on the place, man- 
ner, and object of its publication,"" but how, and why, these 
control is nowhere defined with any precision. "It is wholly 
unimportant what may have occurred elsewhere in the con- 
sideration of this question,'"* because there is no common 
standard of judgment binding upon all Federal Courts. An- 
other court declared: "Obscenity is determined by the common 
sense and feelings of mankind and not by the skill of the 
learned."" nor by the statutes or even the judge-made tests. 

rV. S. fJ. tlinnln, Ai Fed. Rrp. <I2I, 
*gu«n CI, Rieklln. L. R. 3. Q. II. J7B. 

n ]n ihtfl. III ifi movT nihtr giiciiit^on*. ihv mllci ut mine — T. S. 
»U. S. VI. D«vii, }» Fed. Rrp. J37. 
lou. S. VI. Smiib, 4S Fed. Hrp. *T7, 
I'D. S. vj. nmke. J3 t-fd, Kep 101. 
in;. S. fi. Cltilic. J8 Fed. Hou. 7M, 

I'lnnructlon uiarDvtd in Dunlop m. U. S. 1<II O. 8. 100. 
1«fn re Colrniit,. U1 l-i-d Kc|i. 1<:;. 
UU. S. n. HBrtnan, H F«d lt«p. »t9. 
1<U. S, t'l, ShFcmiii. uneflVFiilly icpt>r»d br Mf. Conulocli In ~HonI*, 
oM An ar LitnuluFc." p. >S, 

"Coniinenwnlib vi. Landli. t Phih. 4U. 

338 



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VAIIETIES OF CRITERIA OF GUILT. 

Even th« judicial lep^islation has not improred matter*. 
The words "obscene, indecent," etc., "can not be slid to have 
acquired any technical significance.'"* The same comes from 
another court: "It would therefore appear that the term 
'public indecency' has no lixed legal meaning, is vague and 
indefinite."" And so after all the judicial legislation in aid 
of the sutute, "The word [obscene] can not be said to be 
a technical term of the law, and is not susceptible of exact 
definition in its juridical uses.'"" 

However, it may be suggested that all this admitted 
uncertainty is due to uncertainty of evidence and not to the 
uncertainty of (he law. It has been shown that the statutory 
words do not furnish any definite criteria of guilt, and that 
often the practical operation of the stitute is to produce 
contradictory results when applied by different courts to the 
same subject-matter. It remains to !.how by a comparison of 
the judicial Icgblation creating criteria of guilt, that these 
are so conflicting as to leave undiminished the uncertainty as 
to what are the standards of judgment. It is quite apparent 
that the tests of obscenity arc determined by the necessities 
of each case, and adjusted to accomplish the judicial desire, 
predetermined by considerations other than those expressed 
in the statute and derived from mere moral sentimentaliain 
and feeling-convictions. Even when taken separately, the 
judicial te^^ls of obscenity are as uncertain as the statute, 
upon which they engraft unconstitutional amendments on the 
prttense of interpretation. Taken collectively, they leave us 
in a worse muddle than could have been imagined from a 
mere reading of the statute. 

PACT ox LAW i 

"Whether obscene or not is a question of law and not of 
fact : that question is for the court to determine and not for 
the jury."" 

The pictures "should be exhibited to the jury for them 
to determine as a matter of fact in the exercise of their good 
sense and judgment whether or not they were obscene or 
indecent."" 

t»tl. 3. w. Ilanwn. 45 Ftd. Rm. 417. 

■•HcJnaUM n. Sou. 14 Int. 145. Sn aW lUdd ■*. 8tue (O*.) (7 Sa. 
EmL Rip. to*. 

MTBBmODi H. U. S. BS Vr*. Sep. 105. C C A. 

nUcKiii VI. Fccple^ W. Ill, 441; O. S. vi. Bnmtt. PrO. C*t«. 14571, 
». ItW; In U. S. w. Sb<p*rd. IM r*d. Rm. 5«4 (Uuk) Trial > court dlnclii 
vrMlci u( lullir, >« ihuxI in C. C. A. Abo in U. &. n. ftvyiraod. trial couit 
dirvclcd a vrraict ot tniUy. 

nFtoplr VI. Kulto, 32 Ho*. 711. 

339 



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OBSCENE LITERATURE AND CONSTITimONAL LAW. 



'/ 



"The JiKlge may rightfully express his opintoa respecting- 
the evidence and it may sometimes be his duly to do so, yet 
not so as to withdraw it from the consideration and decision 
of the jury."" 

"Ordinarily it is a question for the detennination of a. 
jury. But it is within the province of the court to construe 
the objectionable document so far as necessary to decide 
whether a verdict establishing its ob»cenity would be set 
aside as against evidence and reason."** 

"The ultimate solution of that rests tuith the jury to the 
same extent that in civil prosecutions for libel and in criminal 
prosecutions since the declaratory act of the 32 Geo. Ill, 
c. 60."" 

"Rather is the lest what is the judgment of the aggregate 
sense of the comtnunily reached by it."** "It is a question 
for the jur)' to pass upon under ptvper instructions. '"* 

IS TUB STATUTB TAUTOLOGICAL? 

"Obviou-tly the word* 'obscene' and 'of an indecent char- 
acter' arc treated in this opinion (^65 U. S. 311] as con- 
verlible expression*, equivalent in meaning."" 

"The word 'lascivious" is vcrj' nearly synonymous with the 
word 'lewd' ; so nearly so that 1 will not undertake to draw 
a distinction between the two words,"* 

"The words 'obscene', 'lewd', and 'lascivious' as employed 
in the statute are not used interchangeably."" 

H.W COMPARISONS BE HADE? 

"You [jurors] are not sent here to try other books iwr 
to compare this booli with other books, and you heard the 
court rule out all other books."*' 

"So far as )t)ur experience goes, ihe effect that Shake- 
speare's writings, or any other author's writings, have had 
in the world, notwithstanding certain passages that they con- 
tain, you have the right lo resort to that experience in de- 
termining what will be the probable effect of tlie publication 

WU. S. p». Smilh, *S Fri. Ktp. *l«, 

MU. S VI. Ott'bt. Jg Fed. Ktp. 10: U. &. **. HanDin. *i FmL Rn* *l*. 

MU. S. ri. Hiniun. *i Fnl Rrp. 417. 

»U. S. rl. Moore l». F. R. 160, 

•Tinnoni w. V. S. K VcA. Rep. »S. (t C A.) 

»V. S. ft. Oailv, IS Fed. Rfp. 7J1. 

•»U. S. Fi. Stnidi. «5 Ftd. Bn. 477: V. %. rt. Oeamea, TtA. Cu« N*. 
14)71^11. Bl»it»i. JMi V. S. v$. BntiMi, 1? F«t Rf[. Ji); 0, 5. e,. Ukl(«. 
SI Fed. Rep. 42. 

nU, S. Pt. ttnitti. P«d, C*H I417I. p IIU, 

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involved in this case, provided yon think such comparison, or 
reference to such experience, will be of service and will aid 
you in reaching a correct conclusion."" 

DOES THF. DF.POMT COMPLETE THE OFFENSE? 

"The act of depositing [obscene matter in the mails] must 
be held to constitute the entire offense,"** 

"The statute does not make criminal the mere depositing in 
a post-office of obscene matter, even though it be 'knowingly' 
deposited."** 

CONTRADICTION AS TO "kNOWINCLY" IN INDICTMENT. 

"It [the indictment] is defective because it docs not allege 
that the defendant knew that the writings, papers, etc., which 
she is charged with having deposited in the mail, for mailing 
and delivery, were of an obscene, lewd, and lascivious charac- 
ter."" 

"The indictment alleges that the defendant knowingly 
deposited this non-mailable picture • * • • Believing that the 
defendant was fully informed of the matter charged against 
him, notwithstanding the cases cited to me of Com, vs. Boyn- 
ton, 12 Cush. 499; U. S. vs. Slenker, 32 Fed. Rep. 691. I am 
coostrained to hotd that this indictment !s sufficient."'* 

EVIDENCe ALIUNDE. 

"If the terms employed do not in and of themselves 
reasonably convey ihe suggestion of obscenity. lewdness, or 
lasciviousness. they cannot be eked out by evidence aliunde."*' 
Y« in the case of U. S. vs. Bennett et al. of the N. Y. 
Herald, such evidence was the sole reliance of the prosecution : 
Advertiscmcnis leading (o immoral resorts were basis of the 
charge. 1 believe the same was true in the case of U. S, tw. 
Dunlop. 

.« TO OBSCENITY ON SUSPICION. 

t Indictment on letter from a married man to an unmarried 
woman inviting her to visit a neighboring dty with him 
clande<^tnely, the purpose of the visit not being disclosed in 
the letter, and it was free from immoral language. "The court 
lUp. 
Ion. 
R«p. 



"V. S. B«. Cb(k« U F*<j. R*p. 7H 

NU. S. TV. Coounalord, 25 Fed. KtiL MJ. 

MU. S. ri. Srsma. 7» tti. Rrf M). 

«U. S. M. SlmlM*. M f*4. R<p. Mi: )» U- S. if. tUtUMa,. I6S r«d. 
lUp. SI (ft. I.). Flm iMlnmcni w» dltmlHciJ on ihb iToundi Cam. n. Bays- 
ton. II Ciah. 4«». 

«U. S. M. airk, 17 Fc<] R«p. lOMOli g^htrd n. tl. &. IM IM. 
R*p. SM. 

-V. S. M. Umr, I» Fc4. Urp. IW. 



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OBSCENB LtreRATURE AND COMSTITUTIONAI. LAW. 

<annot see how any other construction can be put upon them 
than that they arc within the meaning of the statute. • • " • 
It is difficult to conceive what can be more shocking to the 
modesty of a chaste and pure-minded woman than the pn^xwi- 
lion conuincd in these letters,"" 

In a similar case, a "letter free from the immoral lan^a^ 
inhibited by the statute, written apparently for the purpose of 
seductbn or assignation," produced the following: opinion: 
"For a letter to be obnoxious to this statute its language must 
be obscene, lewd, or lascivious and it must be of indecent 
character. The statute does not declare that the letter must 
be written for an obscene or indecent purpose, but that the 
letter itself, in its language, shall be of indecent character. 
Wlien a law denounces a letter containing obscene language, 
and docs not denounce a letter decent in terms but written 
for an indecent purpose, an indictment founded only upon 
the obscene purpose cannot be maintained."** 

"The language, 'go to bed with rac.' is itself neither obscene 
nor vulgar, and has never before been so held. * • • • Taken 
in connection with the surrounding circumstances in this case, 
the conclusion is very natural that the defendant intended 
this as a proposition to violate chastity. " • • * As there is 
nothing obscene or vulgar in the language itself, though it 
makes a proposition that ought, in my opinion, to be criminal, 
I do not feel at liberty to embrace it by construction."*" 

WBOSE OPINION, THE JUROH'S, THE PUBLIC'S. 
OH THE purist's? 

"Sitting, as the court does in this case, in the stead of 
the jury, it may not apply to the facts its own method of 
analysis or process of reasoning as a judge, but should try to 
reflect in the findings the common experience, observation, and 
judgment of tlie jury of average intelligence,"" 

Here, then, was a judge with much more intelligence than 
an average jury, who, by applying his "own method of 
analysis and reasoning," might conclude that a book was not 
"obscene." but. believing that a jury of lesser inteUigenoe 
would conclude otherwise, he decided it would be his duty to 
find the defendant ^lilly. The test of obscenity was tiie 

"U, S, PI. MwtiD, so Fed. Rtp. Ml. 
UU. S. Bi. LimldD, 1i Fid. Rct^ 46J 
MDllitKi]. VI. Suic *\ G>. 211. 5« coneurrlni opWiim. Sm *I*o>. E4wm4i 

M. sutc. Bi s. w. mtf. m. (Tot.) 

*>U. S. M. Harman. 45 Fed. R«p. 4IS. 



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VAKlETieS OF CRITiOttA OP GUILT. 

"judgment of the jury of average intelligence" and the jury'» 
"ovm opimoH.'"* 

"A book to be obscene must appear so to the mind of th* 
Pme not to tkt impure mtrely."** 

IMMORAL INF1,UKNCR ON ADDBESSEK DECISIVE. 

"The inquiry as to the tendency of the letter must be 
narrowed to the liability to corrupt the addressee."" 

"Even an obscene book, or one that in view of the subject 
matter would ordinarily he classed as such, may be sent 
through the mails or he published to certain persons for 
certain purposes. For example, a treatise on venereal diseases 
might be sent through the mail or delivered to a student 
or practitioner of medicine, and perhaps to other persons for 
certain purposes."** 

"I cannot doubt thai proper and necessary* communication 
between physicians and patients touching any disease may 
be properly deposited in the mail. The statute is not to 
receive a strained oonstrnction."** 

"immoral" inplcenxe on aodsessee isimateiial. 

"Without regard to the character of per-son to whom tbejr 
are directed.**" 

"Have sexua] intercourse with me" is held obscene even 
though "addressed to a prostitute."" Even her morals are 
guarded against impure suggestion by this tender and maternal 
statute. 

"iUMORAL" INPLUENCF. OS OSDINARY RHADRR DKCI8IVE. 

"It must be calculated with the ordinary reader to deprave^ 
him."* 

"Tendency to vitiate the public laste and to debauch the 
public morals."*" 

"iuuoral" influrnck on Tue uosT LEWD IS ueasivE. 
"The matter must be r^:arded as obscene if it should have 
a tendency to suggest impure and libidinous thoughts tn tht 

*>Ouul*p n. U- S, 165, U. S, 4mL 

oCooi. M. Abbic D|4x Lh. UooSciillT npartat ta ll*r>nad'> D*1*n«r. p. 1*. 
*<U. S. %n. WruUtiuliy. Ill Fid. Rn. 4H: U. S. M. y<an. I» P*4. Rep. 
It); F.dwuil* H. suit. » So. W. R*p. W. 

«U. S. VI. CUrkc. ]« F«). Rrp. SOt. 

MU. S. H. Smith. 41 Vt4. Rfp. *7K. 

fV. S. *t. ChnHiun. I« F«d. R«p. 498. 

MKdly r*. Rul*. SS So. F. Bip. 4*3. 

bRbIIhc appfDTnl In Dunlap iv. U, S. 16S V. S. 4(t, 

MMunitou PL Suit. 72 Ga. 2lit. 

333 



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OTSCENE LITEaiATUtB AND CONSTITUTION Al, LAW. 

minds of those oprn to the influence of suth thought. • • • • 
Whetlicr the tendency of the matter charged as obscenity it 
to deprave aixl cornipt those Tvhose minds are open to svch 
immoral influence, and into who<« hands a publication of this 
9ort may fall."" 

nTNESS FOR "moral" INSTKUCTION TO CHILOKBN IS DBCIStVE. 

"Such as should go into their (the jury's] families and 
be handed to their (the jurors'] sons and daughters, and 
placed in boarding schools for the beneftcta) iiiformatton of 
tlie young and others, then it was (the jury's] duty to acquit 
the defendant."" 

"unbecoming" t-ITRRATDRE. 
The mere quality of being "unbecoming" is criterion of 
"obscenity."" 

On the contrary, it is held that "unbecoming or even 
profane" language is not within the inhibition of the statute,** 
cONn-iCTS AS TO "taste" and "shock" as tests. 

The general notion is that protection to "morality" was 
the only thing sought. But, according to some, the esthetic 
sense was also to be protected. However, here as everywhere 
else there is conflict of autliority. 

"Offensive to delicacy" is held sufficient."** 

"Shocks the ordinary and common sense of men as an 
indecency."" 

"Tendency to vitiate the public taste" is a material element 
according to another court." 

"If it is such as to offend the sense of delieacy.'"* 

"An obscene writing was defined as one offensive to 
decency, indelicate, impure, and an indecent one, as one hh- 
becofning, immodest. un6t to be seen."** 

"That which shocks the ordinary and common sense of 
men as an indecency is the test," .M^D YET!! 

"The court must * • • • not allow a hypercritical judg- 
ment to take advantage of the elasticity of the language used 

•lU. S. VI. Bmnen, Pn). Cue. 14571. p. 1104: U. & vi. DfboM, M fad. 
Sep. 533: U, 5. n. Slrnkti. 3! F*il. ttff. 693. 

ssri-m, VI. l.»tii!i«, » Phila, R. *i*: (J. S. fi. HtywDod. Off. Sten. lUv- 
Itdnl*. noi Alt or LJL 21: V. S. vi. Sllai Ilicla, Off, Sitn, R«p. Mor*:*. Dot Ajtl 
or l.iiftiiiiirB; V. S. vi. Chwniun. 19 FeJ. Rep. WB, 

"V. %. VI. William*, i Vri. Rep. 4«J. 

Mtr. S. VI. Smdh, II P*d. Rrp. «M. 

"U. S. v. Brinon. 17 fed. Rep. 733. 

HU. S. H. Divlt. 311 Kcil. Rep. 32a. 

"TMontT** w. Suir, 73 Ca. ilf- 

a\J. ^ B«. Shcnnko, (ttoin oAcUl Stcnot. BOt(*. KC Comlock'i Morale 
«ot An Of UHnlure. p, JJ,» 

MU. S. f(. W<lll«m*. 3 Trd. Rrp. 4BS. 

334 



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VAWHTIBS OK CRITERIA OV GUILT. 

by Congress, • " * • by bringing within the act words and 
thoughls that are only riiOe. impolite, or not in good taste, 
according to the standard of decency prescribed by the purists 
in language and thought. "*° 

jUtF. W0K03 OBSCENE PER SE? 

"There are in the language words known as words obscene '^ 
in themselves."*' 

"There is not a single word in the language, however 
coarse, low. or vulgar, thai may not be and is not often 
used to convey proper and decent ideas, and it is a mawkish ' 
and rcaly an indelicate and immodest sensitiveness that blushes 
at a word which may be used obscenely, but which the occasion 
and tlie context show not to be so used.""" 

MUST TUB LANGUAGE RE "OBSCeNB"? 

"Inasmuch as every letter is written, and is a composition 
of words, it necessarily follows that (or a letter to be ob- 
noxious to this statute its language must be obscene, lewd, 
or lascivious, and it must be of an itidecent character."** 

"The language or communication may be free from the 
condemnation of the statute in one instance while it would 
clearly fall within it when addressed to other persons."** But 
who arc these authorized obscenists? 

"It is of no consequence that the langu^e employed may 
be pure."" 

"The poison of the asp may lie beneath the honeyed tongue 
just as a beautiful flower may contain a deadly odor. /( it 
the effect of the language employed • • • • which is struck 
at by the statute."" 

WHEREIN itVSr THE OBSCENITY OB? 
Here then it is held that the words sent through the mail 
must be obscene. Other cases say that the words need not 
be obscene ; it is enough, though expressed in cl>oicest wortb, 
if the idea is obscene. Again it is said that neither the 
words nor the idea actually cxpre**ed need be obscene; it 
being enough if these convey only to the most prurient 

••U. S. M. DBvit. H Pod. R«v- iif: V. S. m. Saltb, tl Fid. Rtp. M4t 
V. S. »f. WIgUman. J9 frd. Rtp. 6M 

«U. !v Fi. BcnnclU FtiL Cw. I4S7I, b 1101: U. S. M. lUnnvB, JB 
ftd. *rf. «» 

vnaiard rf. Slau. 41. G*. 2M 

»»V. ^ <■». L«mkln. 7) ftit. R(p. Ml: Dttlu^ ,;. SttI*. 41 Oa. 279. 

**V. S. •>. Wroblrutkr. lis Fd. Rop. tw 

*>U S >> Snhh. *i ft<i. R*^ *Jt; V. S. -,. H»l*(. II P«d. Rtv. 421: 
C S. w. Huover. 17 Wt*. R<p. **4. 

mj. S. M. Hoora. IM »'«d. R«p. IMi 

335 



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imagination a mere sugg€i^on of obtccnity. And a|fain it is 
decided that it can not be that every ;usircst>on of lascivious 
ideas is prohibited. 

"It can not be that tvtry xfriting or publicalion which m 
any wa_v suggests a Ihouf^hl of the relation of the sexes is 
obscene, lewd, and lascitfiotu. That would place upon the 
court a vast burden of separating the little matter that » 
mailable from the fifrand mass and majority of literature whtdi 
would be non-mailable."*' 

INTBST IS HATEKIAL. 

"I have but little patience with those self-constituted 
^ardians and censors of the public morals who are alwayi 
on the alert to find something to be shocked at, who explore 
the wide domain of art. science, and literature to find some- 
thing immodest, and who attribute impurity where noite is- 
intended. • • • • Tlie question of obscenity in any particular 
srticle must depend largely on the place, manner, and object 
of its publication."'' 

"The question of the violation of the statute rests upon 
the import and presumed motive."** 

"Words get their point and meaning almost entirely from 
the time, place, circumstances and intent with which xhty are 
used. * • • • The intention of the defendant who used the 
language and the purpose for which he used it • • * • 
(OHSlitules the offense."" 

"We think it would also be a proper test of obscenity in 
a painting or statue whether the motive of the painting or 
statue, so to speak, as indicated by it. is pure or iraptire,"'* 

INTENT IS IMUATERIAL. 

"A mistaken view of the defendant as to the character 
and tendency of the book, if it was in itself obscene and unfit 
for publication, would not excuse his violation of the law."^ 

"The sutute does not declare that the letter must be writ- 
ten for an indecent or obscene purpose."'^ 

"The criminal character of the publication is not affected 

•fU. S. M. Urlon * Advnt CWwb. March II. I«0]} lr«n OttcMt Sutnot. 
lUp. 

*U. S. •*. HaRnan, JS Fed. R«p. )I2K'«. 

••U. 5. VI. Wroblnukn. IIS fti. R(p. 4«t: Smllfa ft Cr«ekcr. w. StiMk 
» To. Cr. App. 1. 

"•Oillard n. Stale. 41 G» 2W-2I1. Tb« Mtond woUdM 1* tivm ■ 
CwrUiff opinion. 

yiPeapiU 11. Mullet. 9» S. Y. *H). 

nCom. H. Linitii. t rhila. 45}. 

NU. S. «w. LuBkin. 7J fct Rc[>. *6l. 



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or qualified by there being some ulterior object in view of a 
different and konesi character.'''* 

"I have stated Ihe object with which the book is written 
it Hol malerial, nor is Ike motU/e which leads the defendant 
to mail the boob material. • • * • His motive may have been 
ever so pure; if the book he mailed is obscene, he is guilly."^ 

"Where the writings • • • • are of an obscene. lewd, or 
lascivious character, the fact that they were sent in the reat 
or supposed interest of science, philosophy, or morality, if 
immaterial." (syllabus)" 

UNCERTAINTY AS TO MEDICAL BOOKS. 

"I am not prepared to say and it h not necessary now to 
decide whether these medical books could be sent through the 
mails without violating the statute."" 

"Nor docs the truth or falsity of the publication make 
any part of the offense.""* 

If, as many cases hold, truth and good motives are im- 
material, and the character of the person to whom the matter 
is »ent is also immaterial, then a book which would be obscene 
if handed to an adolescent or pubescent child must also be 
so if mailed to a physician. However, sometimes the judicial 
dictum repudiates this logical consequence. 

"I haire no doubt that under the statute, under which this 
indictment is found, standard medical works • • • • may be 
sent through the mails lo persons who buy or call for thera 
for the purpose of seeking information,"'* 

However, according to another authority they may not 
be offered to all with a view to stimulating the desire for 
information. 

"Even scientific and medical publications containing illus- 
trations exhibiting the human form, if wantonly exposed in 
the open markets, with a wanton and wicked desire to create 
a demand for them and not to promote the good of society 
by placing them in proper hands for useful purposes, would, 
if tending to excite lewd desires, be held to be obscene 

*<ltrsin* w. HltkMn. L R. 1. Q. B. 3C0: Steele n. Brun*B. L. R. T, 

„ 2 ."5- 5- "■ tWmitt. F«!. R«p,. Chc Uiti. p. llMi U. S. w. CteK 
n r«d. Krp. 101; U. S. rt. Dtfcout. 38 Fad. Rep. SM. 

_ >*Ctiiric qsMed In U. S, n. SlrakCT, il r<A. R*p. A)!; Sun *i, Rma, 
» Vt, »l». 

"V. S. 1.1. ClMnnnan. 10 FpI Kej: «M. 

»U. S. f, IVboni. n Ppd. Rrp. SI!; Com. t... Undii, • PhHi. 4SJi D. i. 
Nu BenneU. P«t. Cue H5'I. 

no. S. M. OarW. M Fml. Rtf^ TUt t). S. w. taMk 41 Fed. Rep. 4n. 

337 



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OBSCENE LlTEXATVtE AND CONSTITtTTIONAI. l^W. 

m,^" • • • • That it U 'irue and scientifically correct' is 

immaterial.'** 

"Tlie object no doubt is to display the nature of a par- 
ticular disease and the effect of a particular medicine, but 
it is not commendable, even to medical men, to display such 
representations in puUic."" 

Mr. Comstock tells of one Sherman who was three times 
arreited for circulating a book on hernia. The first two trialsi 
resulted in ac<]utltal, because the jur>' did not consider it 
obscene. On the third trial the court instructed the jury that 
they must consider the verdict of other juries as immaterial, 
and then invented some new test of obsccni^ which resulted 
in conviction.* 

JUDICIAL TESTS OF "OBSCENITY" APPLIED. 

Nowhere else is the judicial "intelligence" so utterly devoid 
of real enlightenment as when dealing with these problems 
of abnormal psychology and sex-psychology. Were it not M> 
pathetic, wc could find great humor in the judicial hysteria 
over "obscene" literature. Unconscious of the fact that the 
obscenity is the contribution of the reading mind,** our "most 
learned judges" when trying to objectivize the judicial moral* 
senttmentatism, by judicial legislation creating tests of ob- 
scenity, make standards which are not only very contradictory 
but also very ludicrous when examined from the view-point 
of the scientist. It seems as though judges think of them- 
selves as possessed of a capacity for acquiring a knowledge 
of science by some mysterious occult mean.t, which make 
it unnecessary for them to investigate before expressing a 
judicial determination involving scientific problems. 

Probably the most frequently used "tests" of obscenity, 
etc., are the following: "Where the tendency of the matter 
is to deprave and corrupt the morals of those whose minds 
are open to such influences and into whose hands a publica- 
tion of this sort may fall • * * • the statute uses the word 
Tewd," which means having a tendency to excite lustful 
thoughts."" I intend to apply the foregoing "tests of ob- 

nCom. CI. Lindl*. S Ph!U. «S3: U. S. vi. Burton. t«2 F(d. Rrp. !>: U. & 
««. ClwHcmtn, 19 Ffd, Rep, *9K 

■■Rr(. fi, dry. 4 Foiler •nd FlnUnKin. }9. 

**U. S, VI. Stanmoi, Monl*. not Lilcistar* or Art, p. 31. 
Xb'Ilia' S<u4t« In tbc l'iychnl»iEy d( St*. Vol, V'l. p. G(; Varidin «! 
Official Modaly. Atbanf Law /aarngl, .\dk, ISOK: Ltftl OtHCvnflr *Bd Sezal 
IVrtholo(7. jtliiniii and NrHmlnxiji. \nf. ISOti Wliat b CilmUally OtecCD^ 



■U. S. w. Bcnneli. Fed. t<K. No. I4ET1. Vol. it, p, llOt. 

338 



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VAKmTle» OK CRITBBIA OP GUILT. 

sccnity" to a few related (acts, well known to the psychiatrist, 
in order tliat their cunnection, and the crass judicial ignorance 
concerning the import of these "tests," may become more 
gaic rally known, 

Krafft-Ebtng, in (juoting the confession of a masochist. 
gives this as the language of the afflicted one : "That one man 
could possess, sell, or whip another latised me intense excite- / 
mcnt; and in reading 'Uncle Tom's Cabin' (which I read 
about the beginning of puberty), 1 had erections. Particularly 
exciting to me was the thought of a nian'» being hitched up 
before a wagon in which another man sat with a whip, driving 
and whipping him."** 

Here then is a case where conviction would have been 
dependent, not upon the junirs' mere a priori speculation, 
but upon the admitted fact that the "tendency" of "Uncle 
Tom's Cabin," according to the judicial ignorance, is to 
"deprave and cornipt the morals of those whose minds are 
open to such influences" and that it has a demonstrated 
"tendency to excite lustful thoughts." Tlius, by the generally 
accepted judicial tests of obscenity, our "most learned" judges 
condemn "Uncle Tom's Cabin" as being an "obscene" and a 
"lewd" book, and it is a crime to sell it, or to send it by mail 
or express, if the "law" (?) is uniformly enforced. 

One need but know the facts of sexual fetichism and apply 
the judicial "tc»t" of obscenity, to an apron, feathers — any 
hem of female attire, such as the shoe, furs, handkerchiefs, 
gloves, silks, velvets, or even a woman's hand, or hair, or 
perfumes, and thus demonstrate that in themselves each of 
these is an object of "public indecency" and "obscenity" be- 
cause "to lho« whose minds are open to such influences." to 
wit. certain sexual fctichists. it has a demonstrated "tendency 
to excite lustful thoughts." 

r)r. Havelock Ellis recently wrote this: "The case has 
lately been reported of a young schoolnnaster who always felt 
templed to commit a criminal assault by the stglit of a boy 
in knickerbockers ; that for him was an 'obscene' sight — must 
we. therefore, conclude that all boys in knickerbockers should 
be forcibly suppressed as 'obscene" ?"o Most assuredly! If the 
judicial tests of obscenity and lewdness are to be applied, it 
becomes a public indecency, in many States criminally punish- 
able, to permit a boy in knickerbockers to be seen in public, 

MhrtbaialUa Saiulte. Chaddoek trmnilatiofi. f. lOS. 
MiPr*c Ptta Antbolon. P ZM. 

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Ditriizuy tiy ^jOOQ It" 



OBSCENE UIEItATUBE AND CONSIITUTIOSAL LAW. 

and a picture of such a boy woiitd be an "ob»cene and indecent, 
a lewd and lascivious" print, within the meaning of the postal 
law, becauiie it has a dtmonstratrd "lendcncy to deprave and 
corrupt the morals of those whose minds are open to such 
influences": because in such persons the picture of a boy in 
knickerbockers has a demonjtraud "tendency to excite lustfuF 
thoughts." 

The literature of sadism also furnishes ilUistrationE of thr 
crass ignorance involved in our judicial "tests of obscenity.* 
"There is a case of a boy who experienced sexual feeling by 
viewing the picture of a f>a(tle scene,"" hence such pictures- 
are "obscene and indecent, lewd and lascivious." and, there- 
fore, criminal if sent by mail. Again our author writes: "A 
surgeon confessed to the writer that while reading in a surgicaT 
vrork a description of the puncture of a festered wound, he- 
found himself, to his astonishment, in a stale of sexual excite- 
ment," Therefore, according to the judicial "test of obscenity.* 
a book on surgery is non-mailaWe because "obscene and in- 
decent," etc., it being now a demonstrated fact that such books 
have "a tendency to excite lustful thoughts," and, therefore. 
by the official "logic," a tendency "to deprave and corrupt 
the morals of those whose minds arc open to such influences 
and into whose hands a publication of this sort may fall," to 
wit, certain sadists. 

Maj. R. W. Shufeldt, a distinguished scientist and a retired 
army-surgeon, while denouncing the absurdity of suppressing 
the literature of human topographical anatomy, said: "My 
studies have brought me much evidence in this matter. It i» 
only the sadist who quivers with sexual excitement as he or 
she stands and views the whips and a few other implements 
in the windows of a harness-store, and not the normal being; 
it is only the hopeless sexual pervert who is driven to libidid- 
inous gratification after viewing the piston copulating with 
the cylinder on the side of a locomotive, and not the healthy 
minded engineer in the cab. * • ' • One case came to my knowl- 
edge of a man who was so delicately balanced sexually that 
he could not view in the window of a fish store a lot of hard- 
shelled clams that the association of the name, and the outline 
of the posterior aspect of the bivalve, did not suggest to his 
mind the external sexual parts of woman and greatly excite 
him as a consequence. All this constitutes no valid reason, 

MAnbur MtcDonald in iffrfu-o-L/fal /«r<wl. for Htnh. ItOT. 




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VABIBTIES OP CUTERIA OF GUILT. 

however, for our prohibiting a whip display in a trackman's 
window, do [ing) away with the locomotive, or suppress [>ng] 
the public ^ale of clams."** 

Here then we have it demonstrated according to the Rx>Et 
generally accepted judicial criteria of "obscenity" that "Uncle 
Tom's Cabin," a book on surgery, a hard-shelled clam, a horse- 
whip, a lady's shoe, glove, handkerhcief, and, in fact, every- 
thing on earth is legally "obscene, indecent. lewd, or lascivi- 
ous," because to jomt minds lewdness has been or may be 
suggested by it. 

There was a time when the Federal Supreme Court still 
subordinated the will of its judges to constitutional law. Then 
it was said: "It would certainly be dangerous if the legis- 
lature could set a net large enough to catch all possible of- 
fenders, and leave it to the courts to step inside and say who 
«ould be rightfully detained and who shall be set at large."" 
Will it adhere to that doctrine when moral sentunentalism is 
involved? In many fields of jurisprudence wc arc the help- 
less victims of the arbitrary will of a lawless judiciary. This 
lawless judiciary in the matter of obscenity has legislated into 
-existence "criteria of guilt" so contradictory as to be meaning- 
less, so inclusive as to make everyone a criminal, and, when 
applied to all conceivable cases, ao fantastic in their result as 
to make our courts a laughing stock of the alienist. And 
these courts, which unconstitutionally enact such contradictory 
and extremely absurd criteria of obscenity, tell us: "These 
arc matters which fall within the range of ordinary in- 
telligence";" and, "Everyone who uses the mails • • • • must 
take notice of what in this enlightened age is meant by 
decency, purity, and chastity in social life and what must be 
deemed 'obscene.' lewd, and lascivious."" BAH ! ! I 

But. our judges are not solely to blame for being so 
densely ignorant as not even to suspect the fact. The blame 
lies farther back with our moralists for revenue, who. with 
the stupid sentimentalists, have so nearly suppressed all liter- 
ature not in harmony with the theology of sex that the aver- 
age physician is quite as ignorant as our "most learned judges." 
Dr. Wra. J. Robin-ion edits several journals for his profes- 

MnirM< M*4i<H /ennuil. Utith. ISO*, p. lU. 
»H3. 5. t'l. Rhw St V. S. llS'Itt. 
•OPwpIl M. Mull«r. S«, K. V 110. 

tlU. 5. H. B«ca 1*1 U. S. tt. Sfe klu. Redd w. SlUt. 1T< f^i. 
ft. 

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OOSCSNE LlTUATUtS AND CONSTITUTION A I. L^AW. 

sional brethren, and makes soinethtng of 3 spectalty of ve- 
nereal subjects. Yet he, who is accounted among- the leaders 
in his profession, wrote this: "And so [as in the case of 
beauty and ugliness] it is in regard to obscenity: the Ihin^ to 
itMlf is not obscene: in the midst of the desert or at Ibe 
bottnm of the sea. it is not obscene. But if it induces some 
people, kotonvr small a number, to commit indecent, unhealtlty 
things, then the thing is indecent, and no amount of sophtstrr 
can do away with the fact."" 

No! the judges arc not the only ones whose minds are 
"uncorrupted by learning" on sexual psychology, and they 
are not to be blamed for their ignorance, only for their un- 
willingness to be enlightened. But what shall we say of the 
moralists for revenue and the quack-moralists in the medical 
profession? 

CONCLUSION. 

It has been demonstrated that, whether viewed as a prob- 
lem of abstract psychology, of sexual psychology, abnormal 
psychology, ethnography, juridicial history, or considered in 
the light of the mutual distructiveness of the judicially cre- 
ated criteria of guilt, or their all inclusiveness and the 
grotesqueness resulting from their general application, in 
every aspect we find absolute detnonitration of the correctness 
of the occasional judicial admission that the statutes under 
consideration do not prescribe the criteria of guilt by which 
judge or jury determines that the law has been violated. 

It will next be cxhauslively shown th.it such certainty *tn 
the criteria of guilt is essential to the validity of a penat 
statute. The conclusion contended for is well stated in a 
recent case where it issaid: "A crime can be created only by! a 
public act. and ihe lanRuage of the acl must be sufficienl to e^m- 
pletely declare and define the crime and affix the punish- 
ment. • • • » The discretion of fixing what facts import 
criminality is exclusively that of the lawmaker as distinguished 
from the executive,'"" or court. It follows from the a>' 
ordination of these propositions that all of these taws are 
Rullitic'. because "Where the law is uncertain there is no law," 
and. consequently, no "due process of law." 

H Allmria, 1DD7. p. S. tlallca sr* oiinr.— T. S. 

MU. S. VI. IjiuUvillc (Dd N. Rjr. Co. IIS Fed. Htp. tU. 



342 



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CHAPTER XVIII. 

"DUE PROCESS OF LAW" IN RELATION TO STATU- 
TORY UNCERTAINTY AND CONSTRUCTIVE 

OFFENSES. 

PART 1. 
The Stientifie Aspect af •'Law.'" 

In all the annals of the past, on« of the most conspicuous 
features in the struggle for liberty has been the fight against 
constructive crimes, which includes that against punishment 
for imaginary or psychologic injuries. The condition of En- 
gland, before the days of the revolution, is thus described by 
Edward Livingston, Secretary of State under President 
Jackson, and reputed to be "the greatest lawyer of his time," 
in bis official report to the Louisiana Legislature. 

"The statute gave the texts, and the tribunals wrote the 
comnenlary in letters of blood, and extended its penalties by 
the creation of constructive offenses. The vague and some- 
times unintelligible language employed in the penal statutes 
gave a teeming color of necessity to this assumption of power, 
and the English nation have submitted to the legislation of its 
courts, and seen their fellow-subjects hanged for constructive 
treason, and roasted alive for constructive felonies, quartered 
for constructive heresies, with a patience that would be aston- 
ishing, even if their written law had sanctioned the butchery." 

It appears, historically, that those baneful constructive 
crimes developed from several specific causes. A union of 
church and state resulted in punishing the mere constructive 
injury of heretical speech; the witchcraft superstition resulted 
in punishing the mere constructive cause of material injuries; 
the abridgment of the freedom of speech and of the press 
also ptmished psychologic crimes based upon mere constructive 
injuries; these, with the evils of judicial le^slation in defining 
the criteria of guill. were all of the sources for those evils 



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OBSCEKl UTCRATUKE AND CONSTtTUTIONAI. LAW. 

wbich are so often denounced under the name of constniaive 
offenses. Our ancestors saw the evils and their practical con- 
crete origins, but apparently did not concern themselves with 
the generalization of the ultimate tcMs by which to determine 
the essence of all constructive offenses. Notwithstanding this, 
Ihcy very effectively barred the door against any recurrence of 
such evils, if we will but construe our constitution in the light 
of a truly scientific conception of the law, such as will be 
fonnulaled hereinafter. 

To obviate the recurrence to punishn>ent of mere psycho- 
logic or constructive injuries, our forefathers prohibited the 
union of church and state, and the abridgment of freedom of 
speech and of the press. To the same end, and to preclude 
judicial legislation and its arbitrary tyrannies, they separated 
the functions of the legislative and judicial branches of our 
government, and then, as including all these and more be- 
sides, they made the more general and comprehensive guar- 
antee that no man should be deprived of life, liberty or prop- 
erty without due process of taw. 

In ^pttc of all these safeguards, and innumerable judicial 
denunciations of the punishment of constructive offenses, it 
seems to me that all about mc I discover such penalties being 
inflicted, without its inducing much of a protest. In seeking 
for an explanation, I liave been led to the conclusion that it is 
to be found in the fact that in reducing the lawyer's calling 
from a profession to a business, we have put so high a pre- 
mium upon his commercial acumen that we have reduced the 
lawyer from a scientist of the law to a business executive. 
The result is that not one lawyer in ten thousand has a truly 
scientific conception of the low, or of its essential nature. As 
best I can I intend to point out the nature of "law" as I 
believe the few intelligent lawyers view it. and then I will 
endeavor to deduce therefrom criteria for determining what 
are constructive offenses, especially in their relation to "dut 
process of law." 




THE LAW AS A SaENCR. 

It is often said, let us hope not always in sarcasm, that the 
law is a science, t wonder if those who speak these words 
really know what they signify. I shall undertake, I fear in 
an ina<lequale way, to slate what such words mean to me. 
Men have a scientific conception of the law only when they 

344 



Dnjli^ency 



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STATUTOHV UNCBHTAISTY AND COSSTtUCTIVE OPFEMSKS. 

sec legal truth as a formulated expression of the natural law 
of our social organi&m. To conceive this as a "taw" we mutt 
understand it. not « a mere acquaintance with, or memory- 
knowledge of, the verbally uttered decision in this case or 
that, or under these or other special states of fact, but wc 
must understand these special legal truths in all their neces- 
sary relations to one another, u ooastituent elements in the 
induction leading to the most comprehensive generalization; 
and again, all mu^t be seen according to their own necessary 
logical classifications as mere special examples of the broad- 
-est rational generalization of legal truth, to which all concrete 
instances must be referred, and from which all specific de- 
cisions must be made, by the process of deduction. It is not 
enough that we discover some more or less crude analogies 
between these facts and those, and thus by an empirical in- 
duction make the decision in (hat case lit this; on the con- 
trary, the law has not reached the dignity of a science until 
wc sec the relation of all its special cases to those general 
principles which are decisive of all causes belonging to the 
same general class. Let me make a quotation by way of 
illustration. "During its early stages, planetary astronomy con- 
sisted of nothing more than accumulated observations re- 
specting the positions and motions of the sun and planets; 
from which accumulated observations it came by and by to be 
empirically predicted, with an approach to truth, that certain 
of the heavenly bodies would have certain positions at certain 
times. But the modern science of planetary astronomy con- 
sists of deductions from the taw of gravitation— deductions 
showing why the celestial bodies necessarily occupy certain 
places at certain times." 

To have accumulated a knowledge of the kind of jtidg- 
ments entered in a targe number of cases is not to know "law" 
—nor to be a scientist of the law. To make empirical induc- 
-tions from such accumulated knowledge may enable us to de- 
cide cases with an approach to truth and justice, but the result 
is not "law" in the only sense in which a scientist of the law 
■can use that word. The lawyer, whose intellectual attainments 
are such as to make him a scientist of the law, must have 
adopted the scientific method for the ascertainment of legal 
truth. The scientific method requires that his empirical gen- 
■eraliiations shall have been included in a rationa] generaliza- 



34S 



Diciiluu tiy V.» O OQ I C 



OBSCENE LITERATURE AND CONSTITUTIONAI. LAW. 

tion, which is the formulated statement of the law, because it 
determines conclusively from the nature of things kmv and 
why certain judgments must be so and lhu$, the result always 
being derived by deductions from the ultimate rational gcnrr- 
altutiong, by which process the law thus determines the de- 
cision in every particular case, which law must always be con- 
formed to, irrespective of a direct estimate of the beneficence 
of its result in any particular instance. Il is this, and this 
alone, which, in my judgment, makes the law a science, and 
though 1 should be convinced that not many lawyers are legal 
scientists, still I would not despair. If our conception of Ibe 
law falls short of being a scientific one, it can be only because 
the judges and legislators whose duty it is to formulate verbal 
statements of the law have not attained the intellecttnl stature 
of scientists. 

If "the lau/' is a system of rational gencrahzatioiu to 
which all specific controversies must be referred, and by de- 
ductions from whose uniform standards all controversies must 
be conclusively decided, then it follows that if no such certain 
and uniform controlling standard is prescribed by the legisla- 
tive enactment, and where, because of that fact (especially in 
criminal case;;), courts are left free to pronounce their judg- 
ments (of guilt or innocence) by empirical inductions based 
upon their differing personal experience, then, under such cir- 
cumstances I say. courts do not declare, and are not governed 
by "the lazv." but themselves are unconsciotisly seeking by 
their judicial legislation to create law, and enforce their own 
arbitrary edicts; they arc not enforcing or maintaining natural 
law according to the formulated precepts of it, made by the 
proper authority, but instead lliey becnnie ihc executioners of 
their own lawless wills. All this is but another way of vindi- 
cating the maxim, "where tlic law is uncertain there is no law.'* 
From the foregoing speculations it already appears that the 
law is something outside of and independent of ihe judicial 
mind. Let us now make further inquiry as to the nature of 
law, from Ihe scientific viewpoint. 

ON THE NATUHK OF THE LAW. 

If we would know what is to be understood by a con- 
structive breach of the law we must first achieve a very 
definite conception of the nature of law. After that we 
can better discern all the conditions which might constitute its. 



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STATUTOaV UNCEKTAINTY AND COSSTEUCTIVE OFFENSES. 

constructive breach, as distinguished from its actual infraction. 
Just as the laws of mathematics are nM created by the 
mathematicians, nor the pliysical laws by the physicists, who 
discover or make formal ^tlatcments of them, as also the laws 
of our thinking arc not products of thinking, so the laws — 
Ike real laws — of a stale are never products of judicial cerebra- 
tion. All laws are pre-suppositions which alone make our 
thinking about them, and statement of them, possible. The 
province of the court is to discover, declare and enforce, the 
prior existing law, and never to construct or create law. To 
declare iht law means only to formulate a verbal statement of 
it as it exists, prior to and apart from the judicial formula, 
and out-iide of the judicial mind. Thus the civil-state law, in 
its proper and technical sense, is but natural justice, as we find 
it in the very nature of our inter-human relations, and in the 
formulate<l statements of it and such other artificia! legisla- 
tively created rules of conduct as the law-making power prop- 
erly may enact, but enact only in furtherance of the sccuritj- and 
realization of natural justice among sentient beings. These 
considerations it seems to me are the reasons underlying the 
following language from the Supreme Court of the United 
States: "In the ordinary use of language it will hardly be 
contended that the decisions of courts constitute law. They 
are, at most, only evidence of what the laws are ; and are not 
of themselves laws."* 

ON TUe REQUIREMENT OK NATUKAL JUSTICE. 

The laws of natural justice are in the nature of things and 
exist wholly independent of our knowledge of them, and would 
still exist though every verbally expressed statement of them 
should be destroyed. It follows that judicial opinions and 
statutes should do no more than merely to declare our highest 
conception of the most refined sense of natural justice to which 
humanity ha.s now attained, and to provide for its practical 
realization. If it docs cither leas or more than this, it is a 
misconception of fhe law, and its enforcement should be de- 
clared beyond the power of any court. To declare otherwise 
would be to assert that our slate machinery may be us<ed de- 
liberately and consciously to accomplish a wrong — to violate 
natural justice, or, what for practical purposes amounts to the 
same thing, our best human cor>ception of it. 



•Swift *. Trwa. ta Pt(*n I*. 



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OBSCEKE UTRBATURE AND COKSTITUTIONAL t^W. 



In accordance with the foregoing conception of law as e» 
isting in the nattirc of things, or as being a human regulaiiot 
conducing to the practical maintenance of natural justice, il 
follows (hat juridical syklems must always conform to rigbl 
reason, because the essence of right reason consists in the ver} 
fact of a oonformit)' of our thinkinfi; with the natural order ol 
things outside our minds. More technically expressed, we sajl 
legal truth, which is but a subordinate department of truth aa 
a whole, is "the exact correspondence between the subjective 
•order of our {the judge's] conception and the objective order 
of the relation among things."* If then a true conception of 
law in civil matters is one which is an exact correspondence 
with natural juMice, as this exists in and is derived from the 
very nature of things, and as a mere part of the natural law of 
our social organism, then our formulated statements of lh< lam 
must always conform to right reason, because such conformity 
is the very essence of a true conception of thf law. Thus un- 
derstood it is hardly possible to disagree with Blackstone and 
those authorities following him, who say: "Statutes which 
violate the plain and obvious principles of common right and 
common reason are null and void."* 

Upon the supremacy of natural law, as the original of all 
•our formulated statements of law, Montesquieu wrote this: 
"How iniquitous the law which, to preserve a puri^ of mot^ 
als, overturns nature, the origin and the source of all 
moral ity."* 

■Later Blackstone expressed himself about the supremacy 
■of natural law in these words: "No human laws are of any 
validity if contrary to the law of nature ; and such of them as 
aie valid derive all their force and all their authority from 
this original."* 

Statutes have been held unconstitutional merely because 
"manifestly contrary to the first principles of civil liberty and 
-natural justice."' 

"Reason and the nature of things, which will impose laws 
even upon the Diety.'*' I 



1 BMf. 



•Ffiln'*, CBwnic PhilMophr- 

•Brnnnt t. Bone. V*d. Cbh. Ns. WBi MorrlMn T. Baitxlale, 
i&a. C«il. 101; T«^lor T, Porwt, ( nfll no (N. V,. )««) 

'"The Si-irlt o! the L«*t.- Aiiline tdiUon. vol. ». p. M8, 

*niii<Iiitanr'i Commmiann. 

'Holden V. Uin«, II Mu*. «Dti Dorktc *. City of JiasTlUr, 
-4at (iid isH*; Older *. Hull. J DbIIu. IITMI. (U S.) 

•Pldchcr T, Vtck. Clinch, 111. kc dlHtntlnj) opinloo: WItUaaaM 
a«l(Bd. t PcUn, 1-aali Tmeti «. Ttylor. B Cnach, 

348 



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STATUTOBV UNCEKTAINTV AND CONSTSUCTIVB OFFKNSKS. 

I am w«ll aware that many courts, without having^ 
weighed the foregoing considerations as to the nature of law. 
have held otherwise, but such courts repudiate and contradict 
the expressly declared purpose oi our Constitution and so dis- 
credit themselves. 

There is iiiJle excuse for the exisitence of government ex- 
cept as affording a method for the authoritative formulation of 
our best conception of natural rules of justice and promotlng^ 
their rrali;:ation in practise. Although the preambles of our 
Federal, and perhaps most of our State constitutions, pro- 
claim their purpose "to establish justice • • • ♦ • and secure 
the blessing of liberty," and though to the end of establishing 
justice "due process of law" was made mandatory, yet judges, 
guiltless of the scientific conception of the tow, have not hesi- 
tated to contradict the constitutionally avowed purpose of gov- 
ernment, and of "due process of law," by declaring that these 
words do "not mean merciful nor even just laws."* 

Judges capable of saying that a state may violate the 
obvious demands of natural juj.|ice (as distinguished from an 
enforcement of laws deciding disputed problems of justice), 
discredit the slate, and invite for themselves contempt. To 
uphold many such laws as constitutional would justify and 
might necessitate a revolution by violence, as a means of re- 
storing liberty and justice. 

If. in a criminal case, a court should undertake to enforce 
upon any person a judgment which was not in the further- 
ance of natural justice as that must be viewed in our secular 
states, dealing only with material factors, and which did not 
conform to general, uniform and certain rules of conduct, 
having an exact, verbally formulated existence outside the 
mere arbitrary will of the court, and well known, or easily ac- 
cessible to all, prior to the acts constituting the offense then 
before the court — I say. if a court should undertake to enforce 
anything different from such a law, it would not be enforcing 
the law at all, and to submit to it would be submission to a 
government by the arbitrary and despotic will of a judiciary, 
unrestrained by subjection to the law, and not in any sense 
would this be a government by courts a£cordmg to law 
Criminal punishment under such circumstances would be ptm- 
ishment for conslnictiTe crimes. 



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OBSCENE UTERATUXe AND CONSTITUTIONAL LAW. 

If the state, la violation of the foregoing injunctions, 
should be permitted to penaliu an act which is not an eisen- 
tial element in doing actual violence to natural ju&tice in rela- 
tion to material factors, the statute could not be one enacted in 
the furtherance of the governmental purposes to establish 
justice and secure the blessings of liberty, and therefore such 
a law could not be within the legitimate province of such a 
government as we profess to maintain. Furthermore such a 
statute, penalizing an act which is not an essential clement in 
violating such natural justice in relation to material things, 
must in itself be the creation of an injustice — that is, it must 
in itself and from its very nature authorize an invasion of 
liberty, unwarranted by any necessity for defending natural 
justice or maintaining equality of liberty, and therefore the 
enforcement of such 3 statute would be the deprivation of 
liberty without due process of late, as we now understand 
taw ID the light of our foregoing studv of its nature. I con- 
clude that every such statute as I have last hereinabov« de- 
scribed is an attempt to punish for a cotisiructive offense — is a 
violation of our constitutional guarantee of "Due Process of 
Law." With so much by way of preliminary discussion, we 
may proceed to some preliminary classification of constructive 
ofTctises under several heads, indicative of the different 
sources from which comes the tendency toward the construc- 
tion of offenses and the wrongful infliction of penalties based 
apoD the creation. 

UATERIAL INJURY ESSENTIAL TO CRtHE. 

It follows from the fact that human justice and a secular 
State can deal only with material factors, that an offense to be 
real, and not merely constructive, must be conditioned upon a 
demonstrable and ascertained material injury, or an imminent 
danger of such, the existence of which danger must be deter- 
mined by the known laws of the physical universe. Our Con- 
stitution, both in its guarantee of freedom of speech and press, 
and in its guarantee of due process of law (as we now under- 
stand the law, according to the foregoing analysis) precludes 
the construction of mere psychologic crimes. The offenses 
which are based only upon ideas, expressed or wherwise. such 
as constructive treason, witchcraft and heresy, either religious 
or ethical, and all kindred psychologic, or other constructive 
injuries, are prohibited, because the very nature of tk* law, 

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STATUTOIY UNCBtTAINTV AND CONSTBOCTIVB OpntNSKS. 

whose supremacy and processes our Constitution guarantees, 
is such that American legislators cannot be permitted to predi- 
cate crime upon mere psychologic factors. Manifestly this 
does not preclude punishment when these psycholo^c factors 
have ceased to be merely such, by having resulted in actttal 
material injury as distinguished from constructive and spec- 
ulative injury; for example, it does not preclude punishment 
in cases of personal libel, or where the uttered opinion has re- 
sulted in crime, under such circumstances as to make one an 
accessory before the fact, or such as proves a conspiracy to 
secure its commission. Under such circumstances, no man is 
punished for a mere speech as such, nor for its psychologic 
effect merely as a psycliologic effect, but he is punished for his 
practical contribution toward the actually realized ascertained 
material injur)', the speech being only the evidence of his com- 
plicity in the achievement of the resultant invasion and material 
damage. 

I have spent so much space in efforts to clarify the vision 
as to this phase of constructive crimes because it sceems to me 
to be very little understood and very often disregarded. In its 
practical application, no doubt, the tests which I have pre- 
scribed will occasionally run counter to certain moral senti- 
menUilixing which, however, we can afford to dispense with, 
and which nur legislators and courts will refuse to regard seri- 
ously when we get an enlightened view of liberty. For this 
class of constructive crimes the responsibility rests primarily 
with the lepslative department. For the others, now to be 
<ijscussed, the courts arc chiefly to blame. 

JUmCIAL I.CCtSt-ATION UNDER rRKTEHSa OP INTBRraBTATIDn. 

The next class of constructive offenses is a little better un- 
derstood. Here the act under investigation is one which, un- 
der the former tests, may properly be penalized, bnt is not 
within the plain letter of the prohibitive statute: First, beciuse 
the statutory tests of criminality, though certain in meaning 
and coverii^ acts of the same general character, do not include 
the conduct under investigation ; or, second, because the lan- 
guage of the statute is ambiguous and the act under investiga- 
tion is not clearly within every possible meaning of the words 
descriptive of the crime ; or third, because the statute is uncer- 
tain in that it prescribes no certain and decisive tests of crim- 



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OBSCENB LITERATURE AND CONST! TITT ION AL LAW. 

inaliiy, thus mxking it neceaaary, if the statute is to be enforced 
at all, judkially to interpolate such te»ts. These arc the three 
classes of judicial legislation which are prohibited in criminal 
cases by the guarantee of "Due Process of Law." 

THE }in>ICIAL ENLARGEMENT OF THE STATtTTB. 
Id the first of these instances a judicial enlargement of the 
field plainly marked out by the statute is so universally re 
nizcd as improper, becau.se judicial legislation and therefore^ 
within the domain of prohibited constructive offenses, as ttv 
need no argumentative support. Indeed, all our judicial rules 
for the strict construction of criminal statutes are foundeA 
upon the necessity of prohibiting judges from creating law. 

AHBICUOOS STATt^TES JUDICIALLY AMENDED. 
The second case, that of ambiguous penal statutes, oftener 
seduces judges into an abuse of their power by a misapplicalioo 
of rules of construction. Where the words descriptive of a 
crime are ambiguous (open to several interpretations, some or 
all of which are very cenain and definite as to the criteria of 
guilt), it is erroneously assumed by many courts that it is an 
exercise of the judicial function of statutory interpretation to 
select that one among the possible meanings of the statute 
which is to be enforced. I do not conceive it so. The judi- 
dalty selected meaning may not be the one which the legisla- 
ture intended to enact. Certainly it has not received the spe- 
cific sanction of the legislative branch of the government any 
more than every other possible interpretation, and the only- 
conluct which can with certainty be known to be within the 
legislative prohibition (that is within th4; law) are those acta 
which are clearly within evrry possible meaning of the statute. 
If this rule has not been always observed in the matter of am- 
biguous statutes it is because judges have not seen cleatly the 
true relation between such ambiguity and the law. 

UNCERTAIN STATUTES AND JUDICIAL LEGISLATION. 
In the third case, where definitive description of the crime 
is wholly w.inling (as distingui^he<l from ambiguity in the 
definition), because there is an absence of any certain, clear, 
universal, and decisive tests of criminality, we have a case for 
tlie application of the old maxim : "Where the law is uncertain 
there is no law." In such case, if the court should supply the 



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STATUTOKV UNCKRTAINTV AND CONSTRUCTIVE OFFENSES. 

tests of criminality so indispensable to tbe enforcement of 
every such slaluie, those tests would not have the sanctiou of 
the legislative branch of the government, and therefore could 
not be the law, in any criminal case. Supplying these criteria 
of guilt is therefore clearly a matter of judicial legislation, 
by means of statutory interpolation, as distinguished from 
interpretation, and punishment thereunder is punishment for 
a constructive offense, and not "due process of law." 

If, then, we do as we ought and look to the very nature 
of our social organism to derive therefrom our conception of 
[aw, as that word is used in our state constitutions, and 
the fifth amendment of our federal constitution, then, because 
the very essence of "law" iit natural justice, and because the 
establishment of that justice is expressly declared to be the 
purpose of our constitutions, it follows that "law" must always 
stand as the destroyer of every vestige of arbitrary power, 
which is always open to be capriciously exercised or unequally 
applied, and therefore opens the gates to the worst forms of 
legalized injustice. In the scientific aspect, the "law" is a 
general rule of civi) conduct (not religious, nor merely self- 
regarding, nor relating to matters of opinion or of speech 
so long as the material effect of these terminate with the !»• 
dividual) which rule of civiS condwcl must exist in the nature 
of things or be duly enacted, in the furtherance of natural 
justice, by the duly constituted law-making power, and the 
enactment and its publication must precede the conduct to 
which it is to be applied ; which rule of conduct to be "law" 
must not do violence to natural justice, and therefore every 
statute penal in character, or one creating artificia] rights, if 
it is to be "law," from the inherent necessity of its formal 
statement (not by accidental uniformity in the judicial inter- 
polation or construction) must be general and equal, fixed 
and certain, as to all persons who in the very nature of things 
bear the same relationship to one another and to the state; 
and such statute cannot from its inherent necessity be gen- 
eral and equal in its application to all similarly situated, unless 
it be also so plain and exact in its description of the right cre- 
ated or the conduct prohibited, and in its criteria of guilt, that 
every man of average intelligence, from a mere reading of the 
statute may know with mathematical certainty, in every con- 
ceivable state of fact, why and how his legislatively created 



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08SCSNB LITBSATUU AND CONSTmmOMAt, LAW. 

right attaches or lapses, and whether or not his proposed con- 
duct is permitted or penalized; furthermore, a penal statute 
can predicate an ofTense and its punishment only upon an 
actually ascertained material injury, or the imminent danger of 
SQch, ascertained according to Uie known laws of our physical 
universe, which material Injury must be imminent to. or acta- 
ally realized by, some sentient being, not giving a voluntary, 
undeceived consent, or one who from immaturity or infirmity 
is incapacitated for giving that consent. If a statute does 
not conform to all these requirements, then I believe it can- 
not be the law, and all penalties inflicted under such other 
statutes are the deprivation of life or property for mere con- 
structive offenses, and cannot constitute "due process of law." 
We pass now from these general considerations to the more 
specific consideration of uncertainty in criminal statutes. 



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CHAPTER XIX. 

-DUE PROCESS OF LAW" IN RELATION TO 

STATUTORY UNCERTAINTY AND 

CONSTRUCTIVE OFFENSES. 

PARXn. 

Geiurai CoHtitUralioHt Cotuemiitg Uncertainty and Dm€ 
Process of Law.** 

That a deprivation of liberty or property may be due proc- 
ess of law, two things must occur. First, there must be s 
valid "law." within the meaning of that word in (he consti- 
tutional phrase "due process of law," and secondly the process 
prescribed by that law must be accurately pursued. Here I 
am directly concerned only with one phase of the question: 
What is essential as to tlie content of a legislative enactment 
to make it a criminal "law" within the meaning of the Con- 
stitution? Judicial opinions have often commented upon uni- 
fonnity and universality of application, to all who in the nature 
of things are similarly situated, as an essential to the very 
existence of a law. Here it is proposed to discuss only the 
effect of uncertainty in a criminal statute, as related to the non- 
existence of "law", because under such uncertain statutes 
courts must indulge in constitutionally prohibited judicial legis- 
lation ; and because statutory uncertwnty excludes the require- 
ment of unavoidable uniformity of application to all who are 
naturally similarly situated. In other words, it is proposed to 
resurrect the ancient maxim, "Ubi jus ineertHm ibi jus nullum" 
(where the law is uncertain there is no law) and to make tt a 
rule for the interpretation of the "due process of law" clause 
of our constitutions. 

In order that my conclusions may not be discredited by 
the use of false analogies. I deem it wise to begin with a short 
analytical statement which will differentiate the problem which 
I propose lo discuss from kindred problems arising from un- 
certainties of other than criminal statutes, and the probable 

"Bntwid (ram DM Cnlrtl Uw ttmnM, J«a. ), IMS. 

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diflfereni efFeci which unccnainty may produce in different 
daues of le^slation. Even though ihc preliminBry discussion 
may be supcrlicial, it seems needful since 1 have nowhere found 
any general discussion of the subject. 

UNCEBTAIN STATUTES CLASSIFIBD. 

It is conceivable that some civil enactment of a legislature- 
would merely be an effort vertully to declare, and legally to 
establish and mainlain. some rule of natural justice, which i» 
inherent in the nature of things and of the social organism. 
Uncertainty in such a statute, resulting from an unfortunate 
choice of words, could do no serious injustice even though 
the court, either by legitimate construction or judicial legisla- 
tion, should make it certain, if in doing so nature's rule of 
jostice was not violated, nor artificial penalties inflicted. It is 
probable that uncertainty in such a statute would not neces- 
sarily effectuate its annulment At any rale, I exclude that 
class of cases from my discussion. A second class of statutes 
which might be objected to because of uncertainty, arc those 
which create artificial civil remedies for the maintenance of 
natural justice. Here again ambiguity and uncertainty can 
be judicially eliminated in accordance with the legislative in- 
tent, if that is reasonably ascertainable from the act itself, 
and no injury residt to innocent parties, because the postulate 
was that the maintenance of natural justice was the only end 
to be achieved by the use of this new artificial remedy. For 
the same reason such laws may also be retroactive." 

The third class of uncertain statutes consist of such as de- 
dare a rule of justice not derived from nature as such, but find- 
ing its foundation tn some artificial condition of legislative crea- 
tion. The limitation of the liability or rights of corporate 
stockholders might be an illustration. When in such legisla- 
tion the effect is to curtail the responsibility which naturally 
should flow from one's act, great exactness in expressing the 
legislative intent to that effect would be required, since every 
inteodment must be indulged in favor of the natural conse- 
qtienees of one's act operating under natural conditions. But 
I'm not going to discuss this either. I have mentioned these 
classes only to point out superficially their probable difference 
from the next class, so that, in the mind of the reader, my 

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STATUTORY UNCEXTAIKTY AND COHSTKUCTIVS OFFENSES. 

Argument may not be subjected to unmerited discredit, beetuae 
of the thoughtless use of false analogies. 

The fourth class of legislation, of which uncertainty may 
be an attribute, includes all those laws which are intended to 
create and enforce artificial rights or which arc punitive in 
their character. The creation of artificial rights such as arise 
from the establishment of a public postal system, patent rights, 
and copyrights, are at] laws of this character wherein the 
statute must describe with the accuracy required for a penal 
statute upon what conditions the right may vest or be de- 
stroyed, else again we are governed by the arbitrary will of 
men, an<l not according to the law. 

The relationship of "due process of law" to an uncertainty 
in the statutory specification of that which is made punishable 
by it, is the special matter here to be discussed. 

Every State in the union has from one to several score 
of penal statutes in which no words of exact meaning serve 
to define with any certainty what it is that is prohibited. In 
the last thirty years, under only one class of these uncertain 
statutes, about 5,000 convictions have been secured, and it is 
fair to assume that under all others, including an infinite 
variety of vague municipal police regulations, there have been 
some 20.000 more citizens deprived of liberty and property, 
and yet seemingly no one has ever doubted that a conviction 
under such statutes constitutes "due process of law." This 
makes me wonder if I am dreaming or if the whole rank and 
file of the bar and judiciary have forgotten the original mean- 
ing and purpose of "the law of the land." I do not even except 
the Supreme Court of the United States, becau.ie it, like all 
the appellate courts of all the states, has repeatedly enforced 
such laws without a doubt ever crossing its mental horizon, 
originating either with the court or the attorneys appearing 
there to argue in such cases. 

The most conspicuous and most generally approved ex- 
amples of these many and outrageously uncertain laws, are 
those which in various ways penalize "indecent, obscene, filthy 
or disgusting" literature and art. Those who need to have a 
concrete example in mind, while the discussion proceeds, may 
be thinking of those laws as a sample of many others which 
must be annulled if my contention is correct. 



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OKCKKTAIN AND AUBICUOUS STATUTES OISTIKCUISBEIX 

First of all we must bear in mind the distinction bctwceo 
an ambiguous statute and an uncertain one. An ambiguous 
statute I conceive to be one which h expressed in words some 
of which have several different meanings, all, or some of 
which meanings, would leave the statutory signification so cer- 
tain as not to require any additional words to make its meaoii^ 
plain and uniform beyond doubt, to every man of average in- 
telligence. When that is (he case the problem is one of con- 
struction, in the method of which due regard is to be had, first 
for the liberty of citizens and second for the legislative in- 
tention, which, however, must be gathered exclusively from 
the words of the ad itself. The rules for statutory construction 
will always protect the accused, so he shall not be punished 
if there be any reasonable doubt as to whether his act neces- 
sarily comes within the very letter of all of the possible mean- 
ings of the statutory prohibition. If it does not come within 
every possible interpretation of the legislative language, the 
accused must have the benefit of the doubt under the rule 
of strict construction. In a statute which is only ambiguous, 
we can thus avoid all possibility of raising the constitutional 
question which I am proposing to discuss. If in criminal cases 
such rules for a strict construction do not safeguard the 
liberties of citizens, they are convicted under judicial legis- 
lation, and not by "due process of law." 

By an uncertain statute, as contradistinguished from an 
ambiguous one, I mean a statute which is uncertain because 
incomplete in its description of the artificial rights created by 
it, or the act which it proposes to punish. Thus an uncertain 
statute is one which, when applied to undisputed facts of past 
or present existence, is incapable of any literal enforcement, or 
incapable of enforcement with absolute certainty and unifonn- 
ity of result, except by the judicial addition of words, or tests, 
which may or may not have been intended by the legislature, 
but which are not unavoidable implications from the statutory 
language alone. It will be contended that such an uncertainty 
in a statute, creating an artificial right or punishment, makes 
the enactment unconstitutional because in its practical operation 
and enforcement it unavoidably involves fx post fatto judicial 
legislation in defining the crime, and therefore is not "due 



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STATUTORV UNCERTAINTY AND CONSTRl'CTIVK Ofl^NSES. 

process of law," and is aa arbitrary government of men and 
not of law.'* 

UNCERTAINTY OP KVIDENCE AND OF LAW DlSTINGUISyBa 
These generalizations can hardly provoke much antago* 
nism. It therefore seems to me that the difficulty lies chiefly in 
a clouded vision concerning thetr application to concrete facts. 
We shall presently see how in some instances it is not at first 
clear whether the uncertainty is inherent in the statute or arises 
from doubt as to the probative value of the evidence adduced 
under it. We must first take notice of that kind of uncertainty 
which arises because the statute attempts to make guilt de- 
pend, not solely upon facts of present or past existence, 
but also requires a decision upon an essential clement of the 
crime concerning speculative and problematical tFn<lcncies 
towards fulurc results, of such a character as are undetermin- 
able with accuracy and uniformity by the known laws of the 
physical universe. Again wc must observe the difference be- 
tween a doubtful suflicicncy of evidence to establish a fact 
of past or present existence, and which beyond all question 
is of a demonstrable character, and that other case of doubtful 
sufficiency of evidence to establish a fact, not of past or present 
material actuality, and one which from its very nature is 
incapable of certain demonstration, under the known laws of 
the physical universe, but is by the statute required to be 
proven as an clement of the crime. In the former case the 
uncertainty of guilt or innocence is not chargeable to uncer- 
tainty of the statute. In the latter case it is wholly due to 
tuch uncertainty, because a conclusion as to the present ex- 
istence of an unrcnliicd, non-physical or psychologic tendency, 
is but an unsupported belief as to the doubtful possibility of a 
future doubtful event. Where such an uncertainty inheres to 
the statute itself, and is of the essence of the crime it attempts 
to define (as is the case with our obscenity statutes and the 
judicial legislation creating tests of obscenity), then in the 
very nature of things guilt must always be determined by 
surmise, speculation, caprice, emotional association, ethical 
sentimentalizing, moral idiosyncrasies or mere whim on the 
part of judges or jurors. Punishment for such a "crime," or 
under such a statute is (he arbitrary depriv.ition of property, 

■A* M Id* rrqoinnianl of nttiintr hi liwt RMIirt ol ntlArial cMI riftM, 
tt: BUnchtrd v. Sfncuc, ftd. Cue No. HIT, and mm«; alM. BiHlc *. Smiw^ 
■4 Aik. t*»S»i Pintn «, Atwia I BlMchforil 1ST. 

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or liberty, or both, according to the sttHtrary diccatcs of ma 
not vested with legislative authority, and therefore is not ao< 
cording to "due proceu of law," 



4 



UNCERTAINTY COKCBXNINC THE ~OBSCSNft. 

In the obscenity statutes there is no question of constrain^ 
involved vertnage, but solely one of defining the word "ob- 
scene." Let us first clearly understand what we mean by a 
"definition." If the word "water" had been used in a statute, 
every average man would at once translate that word into tbe 
same general mental picture. Evcr>' such reader would prob- 
ably define the word "water" as standing for a certain trans- 
parent, odorless fluid, of the identical kind with which he, and 
every one else, has had abundant experience. Tliere never 
would arise in any man's mind any doubt as to what concrete 
concept the general word "water" symbolized, even though it 
might become a matter of inquiry whether a particular sub- 
stance was water or peroxide of hydrogen. That doubt is not 
as to the meaning of the word, but one concerning the past or 
present existence of the corresponding objective fact ; one of 
classifying the matter as water. When such an issue has 
arisen we do not resort to a deflnition of the word, for the pur- 
pose of making certain what concept the word "water" was 
intended to convey ; instead, we call in experts to apply the 
chemical tests by which the objective material, "water." is 
differentiated from peroxide of hydrogen. i 

To determine the clarification of a particular substance 
we apply mathematically exact and always uniform tests, not 
created by statute and not a part of a judicial definition of 
any word used in the statute. If such exact tests exist in the 
nature of things there will be no occasion for legislatures 
or courts to prescribe them. If they do not exist in the nature 
of things perhaps the legislature has the right and power to 
create its own artificial tests or definitions, but in a criminal 
statute they must be of equal certainty with the ascertained 
laws of the physical universe. If neither science nor the 
statute furnishes us with a definite test by which to dctcrmiiw 
the existence of those things expressed by statutory words | 
and which arc essential to a definition of a crime, then the law 
is void for uncertainty and the lack of statutory tests of 
criminality cannot be supplied by the courts since that would 
be judicial penal legislation, and ex post facio at that. 

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If Ruch tests were not a matter of exact science, but merely 
a matter of speculation, or necessary judicial creation in the 
attempt to enforce such an uncertain law, then lh«y would be 
unconstitutional judicial legislation and not definition nor 
statutory interpretation. Furthermore, if such tests were not 
of matlieniatical certainty, then the law would be a nullity 
because "where the law is uncertain, there is no law." Let 
as now keep in mind the word "water" (in contrast with the 
word "obscene"), and the character of those differentiating 
tests, not of .•itatulory origin, nor necessarily implied in the 
statutory words, but by which wc, as a matter of physical 
science, distinguish the substances of that for which the words 
stand. 

With tlie foregoing distinction in mind, I affirm that no 
human can define the word "obscene" so that every reader, 
even with the help of the test, or definition, must receive there- 
from the same concrete mental picture. The reason obviously 
is, that unlike the word "water," the word "obscene" stands 
for no particular concrete objective quality, but always and 
ever stands for an abstraction, in which is generalized only 
subjective i^tates, associated with an infinite variety of ob- 
jectives, and therefore in the concrete it will always have a 
different significance for every individual, according to what 
he has personally abstracted, from his peculiar and personal 
experience, and classified according to his own associated 
emotions of disapproval, and included within his personal 
generalisation, "obscene." Each individual therefore reaches 
a judgment about obscenity according to his own ever-vary- 
ing experiences, and the peculiarly personal emotional associa- 
tions (of approval or disapproval) which are evolved from 
these, as well as the degrees of his sexual hype raest bet icism. 

From this indisputable fact, it follows that the word 
"obscene" is indefinable as a matter of 8cienc« and the criminal 
statute, of which that word is an indispensable element, is 
void, because "where the law is uncertain there is no law," and 
DO "due process of law." 

We must make still clearer, if possible, the difference be- 
tween the uncertainty of the "obscene" and other remotely 
similar uncertainties. Some will ask, Is not the uncertainty of 
the existence of a special intent, which sometimes is made an 
essential clement of a crime, just as uncertjdn as the unrealized 



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psychologic iendenci«s of a book, which arc the judicial test 
of il$ obscenity? I answer "No!" The existence of thai 
intent as to past acts h in its nature a demonstrable fact. The 
accused, if he would tell the truth, could settle it beyond a 
doubt. Here the uncertainty is one of evidence not of statutory 
tests of crime. An unrealized psychologic potential tendency 
of a book upon its hypothetical future reader has only a 
speculative future existence, not determinable with exactness 
by any known law of the physical universe, and therefore is 
not a demonstrable fad. but one that we only guess at, and 
as to which neither the accused, nor any one else, can furnish 
certain information, nor have any certain advance knowled^ 
as to just exactly what will induce the court or jury to judge 
it to be criminal. The criminal intent of a man charged with 
crime is a fact which in pmnt of time antedates the indictment 
and verdict, and has such prior existence objectively to the 
mind of the juror or trial court. Not so with obscenity. The 
test by which juries are instructed to determine the existence 
of "obscenity " depends upon their speculation about the psy- 
chologic tendency of a particular book upon a future hjr- 
pothctical reader, which tendenc>- has not yet become actualized 
at the time of indictment or trial, and which psychologic tend- 
ency is not known to us to be commlled by any exact 
known taw having the immutability of the physical laws of 
our material universe. It follows that, unlike specific intent, 
which is a demonstrable fact of past existence and objective 
to the mind of the court, the unrealized psychologic tendency 
by which a particular book is judged "obscene" has no dem- 
onstrable existence except as a belief about a doubtful future 
possibility, and exists exclusively as a mere belief in the 
mind of the trial judge or jury, and without any known proven 
or provable present, corresponding objective. Such an uncer- 
tainty is one of law and not of evidence, because it arises out 
of the fact that the statute (or the judicial legislation under 
it as to the tests of obscenity) predicates guilt upon a con- 
clusion about an undemonstrable factor of speculative future 
existence. 

No legislature has the power to penalize travel in an auto- 
mobile at a "dangerous speed." and leave to the trial court or 
jury to say in each case whether the speed is dangerous or not. 
What is a "dangerous" speed is a legitimate subject for the 

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exercise of legislative discrelton, and is determinable only by 
the legislature, and 'H& authority cannot be delegated to the 
varying judgments of varying ]un«». So likewise what is to 
be deemed of dangerous moral tendency is a matter exclusively 
of legislative discretion, and must be determined and definitely 
fixed by decisive definition of the law*enacting power, and 
the formulation of tests cannot be delegated to the varying 
judgments of varying courts or juries. Since the "obscenity" 
of a book is not by (he statute defined to consist in any of its 
sense- perceived qualitfes and since therefore the legislature has 
not completed nor expressed its legislative discretion to de- 
cide what is deemed to be of "dangerous tendencies," and since 
that legislative function cannot be delegated to the jury or 
judge to be exercised ex fiosl facto or otherwise, it follows 
that there is no law upon the subject and no due process of 
law in any such proseaitton. 

^^L ON THE CEttTAINTY ESSENTIAL TO THE VALmiTV OP A 

^^K CRIMINAL STATUTE AGAINST OBSCENITY. 

^^p To constitute a valid criminal law the statute under con- 
r sideration must so precisely define the distinguishing char- 
I acteristics of the prohibited degree of "obscenity" that guilt 
I may be accurately and without doubt ascertained by taking 
I the statutory description of the penalized qualities and solely 
I by these determine their existence in the physical attributes in- 
I bcrcnt in the printed page. Judicial tests of "obscenity" can- 
not be read into the statutory words. Nor can official or 
judicial speculations (of a character not calculated to discover 
such definitely penalized physical qualities in the book), be 
permitted so long as they deal only with a mere unrealized 
psychologic potentiality for influencing in the future some 
mere hypothetical person. Such speculative psychologic ten- 
dencies are never found with eertainty in any book, but are 
read into it, with all the uncertainty of the a priori method, 
as an excuse for a verdict of guilty. Even if (he legislative 
body attempted to authoriix such a procedure it would be • 
^^KSulltty under the maxim, "Where the law 1.4 uncertain there is 
^^Tbo law." Therefore, such procedure cannot be "due process 
of law." An unrealized psychol<^c tendency cannot be made 
the differential test of criminality, even (hough we should 
admit that such a tendency may properly appeal to the legis- 
lative discretion and may properly result in penal laws whereto 

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the statutes and not the courts specify the tests, definite and 
certain, by which to determine what it is that is deemed to 
possess the criminal degree of stKh dangerous tendency. 

GENEHAL STATEMENT AS TO THE REQC'IftO) CEKTAINTY OT 
CRIMINAL STATUTES. 

We now come to the contention that a criminal statute 
cannot constitute "due process of law," unless it is general, 
uniform, fixed and certain. These ijualities are more or leS) 
related, since if a law is not fixed and certain it can seldom be 
general and uniform in its application. Now we are specially 
interested to get a more condensed summary as to what is 
meant by the requirement of fixity and certainty, in a statute. 

Our claim is that a criminal statute, to constitute "due 
process of law," must define the crime in terms so plain, and 
rimple, as to be within the comprehension of the ordinary citi- 
zen, and so exact in meaning as to leave in him no reasonable 
doubt as to what is prohibited. Those qualities of generality, 
luifonnity, and certainty, must arise as an unaroidablc ne- 
cessity out of the very letter of the definition framed by the 
law-enacting power, and not come as an incidental result, from 
an accidental uniformity in the exercise, by courts, of an un- 
constitutionally delegated legislative discretion. If a statute 
defining a crime is not self-explanatory, but needs interpreta- 
tion or the interpolation of words or tests to insure certainty 
of meaning, or because its ambigi,iity pemnits of more than 
one judicial interpretation, then it is not "the law of the land," 
because no such selected interpretation of the courts has ever 
received the necessary sanction of the three separate branches 
of legislative power, whose members alone are authorized 
and sworn to define crimes and ordain their punishment. 
Laws defining crimes are required to be made by the law- 
making branch of government because of the necessity for 
limiting and destroying arbitrariness and judicial discretion in 
such matters. Tliat is what we mean when we say ours is 
a government by law and not by men. It follows that it is 
not enough that uniformity and certainty shall come as the 
product of judicial discretion, since "law" is necessary for the 
very purpose of destroying such discretion in determining 
what is punishable. 



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CHAPTER XX. 

•■DUE PROCESS OF LAW IN RELATION TO 

STATUTORY UNCERTAINTY AND 

CONSTRUCTIVE OFFENSES. 

PART III. 

HistorUal JnUfprelaium of ' ' Law ' ' in RelalioH U 
Sta/Hiory Certainty}^ 

As I »iew liiitory. ihe evolution of organized government 
toward liberty, especially in its relation to law.s which arc penal 
in character, is clearly divided into three general stages of 
tendency. The first of these manifests itself in the effort to 
restrain autocratic sovereigns and tlieir minions in the arbitrari- 
ness of their power to punish, by .«ubjecting their wills and 
penalties to the authority of prior known rules or laws. The 
second .itep in this evolution toward liberty is to curtail the 
authority of the lawmaking power as to the manner of it» 
exercise, so that it may not, even under the forms of law, 
violate that natural justice which requires unifonnity of the 
law in its application to all those who in the nature of things are 
similarly .situated, which uniformity, of course, is impossible 
unless the law is certain in the definition of what is prohibited. 
The third tendency is marked by the curtailment of the legis- 
lative power as to the subject matter of it» control, so as to 
conserve a larger human liberty by excluding certain conduct 
— and progressively an increasing quantum thereof — from alt 
possible gDvcmmcntal regulation, even by general, uniform 
and cenain laws. This should later limit le^'slation to the pro- 
hibition of only such conduct as in the nature of things neces- 
sarily involves an invasion of the liberty of another, to his 
material and ascertainable injury. I have no doubt it was such 
a government, of limited power to regulate human affairs, that 
the framers of American constitutions intended to establish. 

The stage before the evolution above indicated we gener- 

"RnMHl fn« rkf AOim^y U* /nnMf. Aprfl. IMS. 

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OBSCBNK UTERATURE AKD CONSTITUTION AL LAW. 

ally term a lawless government of men, in contradistinction to a 
government b> men according to law, and such 3 government 
of men is always despotic and arbitrary, allliough it may at 
times be a relative benevolent despotism. Tlie first advance 
means a government by men according to prior established 
roles, which rules may be as invasive and unjust as the legis- 
lative power sees fit to make them. This condition is aptly 
described as tyranny by the laws, of which we find many ex* 
amples all around us. The second progressive stage is that 
wherein men strive to limit the exercise of the law-making 
power so thai it may not. even under the forms of law, do vio- 
lence to that natural justice which demands definiteness and uni- M 
formity al7ccting tliosc who arc similarly accused. , 

The third stage wherein the legislative power is limited 1 
to the suppression of acts which are necessarily, directly, ■ 
and immediately, inva-Mve, i.< aptly termed liberty under the 
law. Our present stage of evolution, so far as the leaders 
of thought are concerned, is probably to be located near the 
beginnings of this stage, and in the course of a few thousands 
of years we may atuin to something approximating real 
liberty under the law ; and in another million years we may 
attain to the Anarchist ideal, which is liberty without law, 
made possible because no one has the inclination to invade 
bis neighbor, and all are agreed as to what constitutes an 
invasion. The great mass of Americans, and humans gener- 
ally, are now in that st^e of their development whicli compels 
a love of tyranny under the forms of law — a tyranny tempered 
only by the discretion of the ignorant, such as know nothing 
of liberty in the sense of an acknowledged claim of right to 
remain exempt from authority. 

The transition from despotism to government by law in its 
earlier stages is marked by the misleading seemings of (aw, 
which, however, are devoid of all its essence. This is illus- 
trated in many of the miscalled laws of the Russian Tsar, and 
also in the Chinese code, which latter prescribes a punishment 
for all those who shall be found guilty of "improper conduct." 
without supplying any further criterion or test of guilt. Mani- 
festly imder such authority the magistrates are justified in 
pimishing an>lhing which whim, caprice, or malice might 
prompt them to adjudge "improper." Accordingly, we have 
a state of affairs wherein under the misleading appearances of 

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STATUTORY UKCKRTAINTY ANI> CONSTRUCTIVE 0PFBN3ES. 

Uw everything is condemned, and the arbitrary will of the 
officers of the State again creates the penalty instead of merely 
enforcing "Ihe law" as ihcy find it. Thus, while observing the 
outward forms and scemings of law, the people arc still gov- 
erned by the mere despotic wills of officials. 

Upon the questions as to what are all the essentials of law, 
and what arc the limits of liberty, we still have, in the main, 
very crude thinking and perhaps still more crude efforts to- 
ward generalizations. So far as my investigations have in- 
formed me, no court has had the confident clarity of vision 
to even attempt the formulation of a comprehensive general 
statement as to the limits of liberty and governmental control. 
This of course means that our judges are still in that early 
stage of their intellectual development wherein this branch of 
the law has not become a science. However, it is a most de- 
plorable state of mind which too often impels courts to confess 
to the permanent intellectual bankruptcy of the judiciary by 
assening that such definitive generalizations are impossible. 

The present purpose is to inquire into the historical ver- 
dict as lo the reasons which make law a necessity and espe- 
cially the verdict of all lovers of liberty as to the degree of 
certainty required to make a penal statute trk law, and its 
enforcement "due process of law." The method will be to ex- 
hibit the facts and the authoritative declarations concerning 
this question as these appear in our juridical history. This 
fragmentary material often includes very crude statements of 
imperfectly conceived principles, as well as mere empirical gen- 
eralisations, but out of it wc will later erect a rational gen- 
eralisation, and this will be done so far as is necessary to de< 
termine the degree of certainty required in thf law, as the 
same is formulated in penal statutes. 

I confess that it seems to mc as though men claiming to 
be learned in the law should be presumed to know all that 
follows, and yet it is self-evident that they do not. I .uy 
self-evident, because the fact is notorious that among the many 
uncertain criminal statutes those only which are directed against 
"obscene, indecent, filthy or disgusting" literature and art, 
which word^ are as vague as a I^ondon fog. have resulted in 
over 5000 persons being deprived of life, liberty, or property, 
and yet it seems hardly to have occurred to any one connected 
with these cases lo question the constitutionality of those laws 



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OBSCRME UTEBATUKS AND CONSTtTtmONAL LAW. 

because of their uncertainty. Such facts, and numerotw 
equally vague statutes and municipal ordinances which are 
continually being enforced, without having their constitutioa- 
ality questioned, demonstrate that the intelligence of the pro- 
fession in genera] has not yet risen to the point where there is 
any need to apologize for attempting to enlighten its members 
concerning the constitutional requirement of certainty in penal 
statutes. 

EARLY WRITEHS ON THE NECESSITY OF t^W. 

John Adams, in "A Defense of the Constitution and Gov- 
ernment of the United States," dcfend« at some length the 
proposition that even under laws to which all are equally sub- 
ject the Majority may oppress the minority. In this connec- 
tion he speculates about the meaning and limits of liberty, in 
the course of which discussion he quotes from numerous old 
authors about the necessity of a government according to 
/on' to prevent the tyranny of arbitrary punishments by the 
magistrate. I will now reproduce some of Mr. Adams' quota- 
tions and speailations, asking the reader as he scans these 
quotations concerning the necessity for having princes and 
judges govern according to law, always to bear in mind the 
essential nature of Ike law, in contradistinction to arbitrary 
edicts, 

"It is weakness rather than wickedness which renders men 
unfit to be trusted with unlimited power. * • • Junius 
says : 'I.^ws are intended, not to trust to what men will do, but 
to guard against what they may do." Aristotle says that 'A 
government where the Laws alone should prevail, would be 
the kingdom of God.' This indeed shows that this great phi- 
losopher had much admiration for such a government, Ari^ 
totle says, too, in another place, 'Order is law, and it is more 
proper that lazv should govern, than any one of the citizens: 
upon the same principal, if it is advantageous to place the 
supreme power in some particular persons, they should be 
appointed to be only guardians, and the servants of the laws,* 
These two arc very just sentiments, but not a formal defini- 
lion of liberty. Livy, too, speaks of happy, prosperous, and 
glorious times, when 'hnpiria legum polentiora fuerant quom 
hominttm.' But he nowhere says that liberty consists in being 
subject only to the Irgum impcrio. Sidney says, 'No sedition 
was hurtful to Rome, 'until through their prosperity some 

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STATUTORY UNCKITTAINTV AND CONSTRUCTIVE OFFENSES. 

men gained a power above the laws.' In another plac« he iclls 
us loo, from LJvy, that some, whose ambition and avarice 
were impatient of restraint, complained that 'leges rem surdam 
esse, intxorabilem, sahibriarem inopi quam potenti.' And in aiw 
other that no jjovcmmcnt was thought to be well constituted 
'unless the laws prevailed against the commands of men.' But 
he has nowhere dchned liberty to be subjection to the laws 
only, Harrington says, 'Government de jure, or according to 
ancient prudence, is an art, whereby a civil society of men is 
instituted and preserved upon the foundation of common in* 
terest. or, to follow Aristotle, and Livy, it is an empire of 
laws and not of men.' And government, to define it according 
to modem prudence, or dt facto, is an art, by which some 
man, or some few men. subject a city or a nation, and rule it 
according to his or their private interest, which, because the 
laws in such cases are made according to the interest of a 
man, or a few families, may be said to be the empire of man, 
and not of laws. Sidney say-i, 'Liberty consists solely in an in- 
dependency on |ofl the will of another, and, by a slave, we 
understand a man who can neither dispose of his person or 
goods, but enjoys all at the will of his master.' And again, 
'As liberty consists only in being subject to no man's will and 
nothing denotes a slave but a dependence upon the will of 
another: if there be no other law in a kingdom but the will of 
a prince [or of the judiciary] there is no such thing as 
liberty! 

It appears sufficiently evident from these past contentions 
for liberty that the necessity for statutes in criminal csmts 
arises out of the necessity for strengthening the weakness and 
curbing the passions of judges, who, according to all experi- 
ences and while remaining human, cannot be safely (rusted 
with arbitrary power to determine what shall be punishable. 
Since such are the reasons uniformly assigned by the older 
philosophers for their insistence upon subjecting the will of 
judges to law. it follows thai criminal statutes fall short 
of satisfying the demand for lau; if by their uncertainty they 
compel, or permit, judices to exercise a discretion in framing 
tests of criminal-ly such as are not specifically written into the 
very words of the penal code. 

Let ti^ now briefiy trace the5e same influences in the origin 
of Magna Charta and the English concepttou of "the taw o£ 

•"A IMcnic •! tbi Conitllullon." «4c.. iMHr XXVI la VaL I. 



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0P3CBNB LITEXATIJXB AND COKSTITITTIOHAI. I^W. 



tbc land." This of course is re-stated, without bein^ altered, 
in our American constitutional guarantee of "due process of 
law." A little farther on we consider the later unfoldmcnt of 
the judicial interpretation of "law." 

MAGNA CBA»TA AKD "THB LAVf OP THE LAND." 

The ancient prohibition against an infliction of penalties 
"without due process of law," or, what usually amounts to 
tbc same ihinj;, those inflicted under "ex post facto laws," or 
for mere constructive injuries or crime, was the most es- 
sentini and funilamental guarantee of an Englishman's liberty. 

King John, we are told, filled his coffers by confiscation and 
cruel extortions. He invited dignitaries to London, then de- 
clared them prisoners until they should pay targe fines. These 
penalties were not inflicted for oflfenses against any general 
or prior known laws, such that with certainty could have 
informed the citizens in advance that their conduct was illegal, 
or warn them of the penalty thereof. "Liberty of all kinds was 
vendible in the reign of John" precisely because there was no 
law, in the sense of general rules with undoubted certainty of 
meaning, to define the Iimit!> of liberty or furnish a refuge of 
defense for the citizen in the exercise of his liberty, or to cur- 
tail the arbitrary power of a tyrant King, or his judiciary. 

To prevent this lawlessness of official power as exemplified 
in the arbitrary infliction of penalties, the barons by force 
exacted the Magna Charta. In that document, as confirmed by 
Henry the III and Edward I, we find it stated that "No 
free-man shall be taken or imprisoned or disseized of his 
freehold or liberties, • * • but by lawful judgment of 
his peers or by the law of the land."'* If read in the tight of 
the historical facts which brought this into being, it is manifest 
that the primal purpose of all this was that no man might be 
deprived of his property or liberty or be tricked into criminaJ- 
ity by any unknown or uncertain rules, such as would not 
warn him in advance, and with unerring certainty, that his 
conduct was prohibited. 

The Magna Charta required only that criminal statutes 
should be certain and general. It did not yet by its strict letter 
prevent their being made so after the fact charged as crime. 
if the King and Parliament saw fit then to prescribe a punish- 



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STATUTORY UNCERTAINTY AND CONSTBUCTIVE OFFENSES. 

ment. This furnished the opportunity for shifty tyrants to 
evade the spirit of Magna Charta, and they did it. In the 25th 
Edward III, a law provided thus: "It is accorded, that if any 
case, supposed treason, which is not above .specified, doelh 
happen before any justices, the justices shall tarry without 
any going to judgment of the treason, till the cause be showed 
and declared before the King and his Parliament whether it 
ought to be judged treason or other felony,"" Tlius tyrants 
kept the letter of the "due process of law" provision of Magna 
Charta, and yet accomplished quite effectively the repudiation 
of its spirit and of the very essence of low. and thus they again 
•Uocessfully destroyed liberty. From such circumstances grew 
the demand which resulted in a diarter-prohibition against 
€x Post facto laws. 

However, the tyrants arc always fcnile in the evasion of 
charters and constitutions, such as are intended to limit their 
arbitrary power and correspondingly to protect the citizen 
against official invasion. So next we find men imprisoned 
under the authority of a special royal commission, which im- 
plied a process similar to our present occasional executive 
legislation. There were not wanting Judges who, impelled 
by a lust for power or even more base motives, were ready to 
affirm the validity of such evasions of Ihe English Ch.irtcrs 
of Liberty, by the judicial engraftment of exceptions, called 
"martial law." And so it became necessary to make English 
liberties more safe, by perfecting the Writ of Habeas Corpus, 
and securing the re^affirmance of Ihe former safeguards of 
liberty. In all of the English charters of liberty, and their 
various re-affirmations, one principle is always discernable 
in the use of such words as "due process of law." and the 
"law of the land." It was not the purpose to change the 
person of the despot, or to transfer despotic power from an 
autocrat to the judiciary; neither was it intended merely to 
influence those vested with despotic power to change the 
mode of exercising their discretion under it. On the contrary, 
the plain purpose was to destroy the discretion itself, so as, at 
the trial of an accused, to preclude every possibility of an 
arbitrary judicial determination as to what should be the 
criminal statutes as applied to his acts. All along (be history 
of these stormy times, it is made plain that the charter phrases, 
for the protection of liberty, were designed to mean that no 
-ta^kk tJbttiici M. 

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OBSCENE LITERATURE AND CONSTITUTIONAL LAW. 

man should be deprived of liberty or property except by a 
prior, duly enacted, publicly promulgated law, which to be 
"lav/' muKt be general in terms, etjual in its application to all 
who in the nature of things are similarly situated, and to ac- 
complish this it must be K> certain as to its meaning that no 
man of ordinary intelligence could be misled by it. The mani- 
fest intention was to safeguard liberty, against every arbitrary 
determination of guilt, in a manner that cuuld not be realized 
if an enaclment should lack any of ihe*c quniilies, and in con- 
sequence we must say tliat a conviction under such statute 
would not be according to the tow, and therefore would not be 
within Magna Charta or our own constitutiorully guaranteed 
"due process of law." If a statute defines a cnme in uncertain 
terms, a judge who, under the pretext of construing it, should 
attempt to supply the absent but necessary certainty of mean- 
ing, through judicially created tests of criminality, then, as to 
the person on trial, such a judge would be enacting an fx post 
fatto laxv. I( such judicial legislation should thereafter be 
uniform in all subsequent cases, the uniformity would still be a 
matter of accidental uniformity in the exercise of arbitrary 
judicial legislation, and not a compulsory uniformity imposed 
by definite and certain legislative enaclment. Even un'ler uni- 
formity of judicial legislation there would still be the absence 
of that unavoidable uniformity which should result from sub- 
jecting the judicial will to the certaint>' of a statute and which 
compulsory conformity is an indispensable requirement of 
"Law," and of "due process of law." Now let as inquire how 
far this interpretation of the historical events harmonizes with 
the views of the early writers, interpreting the charter phrases 
which were incorporated into our constitution. Here let it be 
remembered that our constitutional guarantee of "due process 
of law" was adopted after most of the following construction 
had been placed upon the word "law." and probably because of 
these constructions. 

THE EARLY LAW WRITERS ON THE MF^NtNC OF "IJ^W." 

"Every law may be said to consist of several parts: One 
declaratory, whereby the right to be obser\'cd, and the wrong 
to be eschewed, are clearly defined and laid down."" 

Although there ts much in Montesquieu's "Spirit of the 

"BlMfarlODt in bi( Intraducllon. Book I. p. tS. 



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STATUTORY UNCERTAINTY AND CONSTRUCTIVE OFFENSES. 

l^ws" that we have outgrown, yd he waR the precursor of 
most that is good in modern political institutions, and, as it 
appears by the frequent references to him in The Federalist, 
hi; book did much to sliape our own constitution. It is nearly 
two centuries since lie wrote: 

"Under moderate governments, the law is prudent in all 
its parts, and perfectly well known, so that even the pettiest 
magistrates are capable of following it. But in a despotic 
state, where the prince's will is the law : though the prince were 
wise, yet how could the magistrate follow a will he does not 
know? He must certainly follow his own." In despotic 
governments there arc no laws, the judge himself is his own 
rule."" 

The following words, also from Montesquieu, show what 
the contest for certainty of the law meant with special refer- 
ence to intellectual crimes, and, with a very few verbal changeSi 
will be seen to bear with unusual force against the validity 
of our present obscenity laws. He said: "Nothing renders the 
crime of high treason [and we may add obscenity] more arbi- 
trary than declaring people guilty of it for indiscreet speeches. 
Speech is so subject to interpretation; there is so great a 
difference between indiscretion and malice; and freciuenlly little 
is there of the latter in the freedom of expression, that the law 
can hardly subject people to a capital punishment for words 
unless it expressly declares what words they ore. Words do 
not constitute an overt act ; they remain only in idea. When 
considered by themselves, they have generally no determinate 
signi5caiion, for this depends on the tone in which they are 
uttered. It often happens that in repeating the same words 
tbcy have not the same meaning; this depends on their coo* 
nection with other things, and sometimes more is signified by 
silence then by any expression whate\Tr. Since there can be 
nothing so equix^ocal and ambiguous as all this, how is it 
possible to convert it into a crime of hitjh treasonf Wher- 
tver this law is established, there is an end not only of liberty, 
but ever of its very shadow.'" Italics are mine, usually, in 
all these quotations, T. S. 

Beccaria, who profited by studying Ibfonlesquieu, also eUb- 

*AMln> Edition. Vol l«. f. TH. 

■\'al. 1 Aldlne Edillon. f. l». 

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OlBCtNE UTMATUK AND CONSTITUTIONAL LAW. 

orates this theme of the necessity of certainty of law as ■ 
condition of hbcrly. In part be wrote as follows: 

"Judges, in criminal cases, have no right to interpret the 
penal law», because they are not legislators. Tbey have not 
received the laws from our ancestors as a domestic tradition, or 
as the will of a testator, which his heirs, and executors, are to 
obey ; but they receive them from a society actually existing, 
or from the sovereign, its representative. • ■ " There is 
nothing nxire dangerous than the common axiom: The spirit 
of the laws is to be considered. To adopt it is to give way to 
the torrent of opinions. This may seem a paradox to vulgar 
minds, which are more strongly affected by the smallest dis- 
order before their eyes, than by the most pernicious, though 
remote, consequence produced by one false principle adopted 
by a nation, lichen the rule of right which ought to direct the 
actions of the philosophers, as well as the ignorant, is a matter 
of controversy, not of fact, the people are slaves to the magis- 
trate. If the pmver of interpreting Imvs be an «t7. obscurity 
in thrm must be another, as the former is the coitsequence of 
tMc latter. This evil will be still greater if the laws be written 
in a language unknown to the people: who, being ignorant 
of the consequences of their own actions, become necessarily 
dependent on a few, who are interpreters of the laws, vrkich 
instead of being public, and general, are thus rendered private 
and particular. If this magistrate should act in an arbitrary 
manner, and not in confonnity to the code of laws, which 
ought to be in the hands of every member of the community. 
he opens a door to tyranny, which always surrounds the con- 
fines of political liberty. / do not know of any exception to 
this general axiom, that every member of society should 
know when he ts cntninal. ana when innocent. If censors, and, 
in general, arbitrary magistrates, be necessary in any govern- 
ment, it proceeds from some fault in the constitution. Tkt 
uncertainty of crimes hath sacrificed more victims to secret 
tyranny than hai'e rt'er suffered by public and solemn cruelty. 

"No Magnstratc then (as he is one of the society) can, 
with justice, inflict on any other member of the same society 
Punithment thot is not ordained by law. Judges in rrtminu/ 
coses hove no right to interpret the penal Imos, because they 
are not legislators. Who then is their lawful interpreter? The 
sovereign that is the representative of society, and not tk* 



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judge, wkosf offict is only to examine if a man have or havt 
not committed an action contrary to the low."" 

An American commentator wriiing before tlie Revolulioo 
defines "The law of the land" to mean. By the common law 
or by the statute law, by the due course and process of law. 
He quotes Lx)rd Coke as thus interpreting the clause in ques- 
tion, "the law is the surest sanctuary that a man can take, and 
the stron^st fortress to protect the weakest of all. * * * 
No man is deceived while the law is his buckler. * • * 
The law is called right because it discovereth that which is 
crooked or wrong; for as right signifieth law, so crooked or 
wrong signifieth injuries; injury is against right. A right 
line is both declaratory of itself and the oblique. Hereby tht 
crooked chord of that which is catted discretion afpeoreth to 
be unlawful, unless you take it za it ought to be, discreli est 
discerne per legem, quid sit ;iijfittn^.discretion is to dis- 
cern by the law what is just."** 

"It is the function of a judge not to make but to declare 
the law according to the golden metewand of the law. and not 
by the crooked cord of discretion." Coke, 

It must be apparent from this conception of "law" that 
under "due process of law" as used in the English charters 
and defined before the days of our constitution, and with such 
interpretation incorporated into these constitutions, no man 
can be deprived of properly or liberty for ads made criminal, 
by any exercise of power, which seeks to invest either judges 
or juries, cither directly or indirectly, with a discretion to 
determine whether or not any undisputed act shall be penalized ; 
but, on the contrary, the very essence of "lau/' in "due process 
of law." in criminal cases at least, is that ail suek discretion 
shall be destroyed by the very expticitness of the taw itself, 
and that all juridical discretion shall be limited to discovering 
the facts and discerning solely from the letter of the law 
whether these ascertained facts constitute a crime. Only thus 
can statutes curb the tyraimy of arbitrary judicial power. 
Here is another aulhoritativc statement as to the requirement of 
the law. which again is a prerevolutionary authority, in the 
light of which our constitutional phrase must have been 
adopted. 



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OnSCCNE UTEBATURK AND CONSTITUTIONAL. LAW. 

"It is further cucntial to political frccilom Ihal the laaa ' 
bt tlearly obvious to tommon understanding, and fully notified 
to the people. • • • When the people 6rst Icam the law 
by fatal experience, they feci as if the judge was in effect 
legislator, and as if life and liberty were subjected to arbitrary 
control. • • • The same will be the consequences ■where 
the laxv is imperfectly utd indeSnilely expressed. The style 
thereof should be clear, and a& concise as is consistent with 
clearness; ^neral terms also should be (nrticularly avoided, 
as liable (o become the instrumcnls of oppression. Under 
the Act 14 Geo. 11 c. 6. stealing sheep 'or other cattle' was 
made felony without benefit of clergy ; but those general words 
'or other cattle' being considered as too vague to create a 
capital ofleti!^, the act was properly holden to extend only to 
sheep."" 

That judicial interpretation of "Law" just quoted was 
adoptc'l inlo our constitutional guarantee of "Due Process of 
law," and, measured by that standard, all uncertain criminal 
statutes must be annulled because not "Law" and not consti- 
tuting "due process of law." 

In the debates of the English Parliament frequent refer- 
ences can be found in which certainty of the law is advocated. 
(Sec 4 Parliamentary History, pp. Ii5-ll7-ll& for illustra- 
tions). In 1793 (Slat. 33 Gea iii,c. 60) was passed the act 
which in cases of criminal libel made the jury the judge of both 
law and fact. Before this (in 1784) an English court de> 
nounced uncertainty of the law of libels or its administration io 
no uncertain terms. Here is the language officially reported. 

"Miserable is the condition of individuals, dangerous is 
the condition of the sUte, if there is no certain law, (or whidi 
is the same thing) no certain adminstration of law, to protect 
individuals or to guard the state. • • • Under such ao 
administration of the law no man could tell, no comnset fotdd 
advise, whether a paper were or were not puntshoble. I am 
glad that I am not bound to subscribe to sitch an absurity, 
such a solecism in politics."** 

If ihe English courts have not so uniformly ignored od- 
certain statutes as might be desired, the explanation may per- 
haps be found in the fact that Magna Charta is a limitatioo 
upon only the sovereign, and not upon Parliament, in the sense 

■I«H Aiifklmid'i Prmc>i<lr< i.f Pin«l Law. pp. JUIH (ini>. 
■Kln( «. Dean ol Si AMph, 1 Tertni Rf^ til. (1TI4> 

37« 



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STATUtMlV UNCEHTAIWTV AND CONSTKUCTIVB OFFKNSSS. 

in which our American constitutions operate to limit legis- 
lative power. If therefore English courts, becauM of uncer- 
tainty, arc to annul an rnaclnient of Parliament, the justifica- 
tion therefore can be found only in the very nature of their 
ini(tilutton$. without any fumlamcnial written authority male- 
ing &ucli natural law a limitation upon Icf^slativc power. 

Krskinc, although he did not believe in an unabridged 
freedom of speech, did believe in more such liberty than was 
current in his time, and he did believe in "Law" in the true 
sense. 1 think it worlh while in this connection to quote a few 
paragraplis from his speech in defense of I^fd George Gordon. 
«» illustrating his view of the point now under discussion. He 
said: 

"In nothing [else] is the wisdom and justice of our laws so 
strongly and eminently manifested, as in the rigid, accurate, 
cautious, explicit, unequivocal definition of what shall con- 
stitute this offen*e- • • * 

"If treason, where the government itself is directly offend- 
ed, were left to the judgment of its ministers, without any 
boundaries — nay, without the most broad, distinct and invio- 
lable boundaries marked out by law— there could be no public 
freedom — and the condition of an Englishman would be no 
belter than a slave's at the foot of a Sultan : since tliere is 
little difference whether a man dies by the stroke of a sabre, 
without the forms of a trial, or by the most pompous cere- 
monies of justice, if the crime could be made at pleasure by 
the state to fit the fact that was to be tried. • • • 

"A long list of new treasons, accuniulaied in the wretched 
reign of Richard the Second, from which (to use the language 
of the act that repealed them) *No man knew what to do or 
say for doubt of the pains of death,' were swept away in the 
first year of Henry the Fourth, his successor : and many more, 
which had again sprung up in the following distracted arbitrary 
reigns. • • • 

"This wise restriction [against arbitrary judicial deter- 
mination of what shall be treawnl has been the subject of 
much just eulogium by all the most celebrated writers on the 
criminal law of England. Lord Coke says. 'The Parliament 
that made it was on that sccount called Benedictum or Blessed' ; 
and the learned and virtuous Judge Hale, a bitter enemy and 
■oppowr of construaive treasons, speaks of this sacred institu- 



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OBSCENE UTERATURS AND CONSTTTUTIONAI. LAW. 

tioo with that enthusiasm which it cannot but in^ire in the 
breast of cvcrj- lover of the just privileges of mankind." 

Again in his argument InsiMing on the definiteness of the 
law, be contends that it shall "be extended by no new or occa- 
lional constructions — to be strained by no fancied analogies— 
to be measured by no rules of political expediency — to be 
judged by no theory — to be determined by the wisdom of 
no individual, however wise — but to be expounded by the 
simple genuine LETTER of the law."" 

Although Efskinc lauded the certainty of (he statute, and 
no doubt Ihoujiht it al least certain enough to preclude the 
conviction of his client, Lord Gordon, we still find an abundance 
of complaint, after his time. Here is a .sample taken from a 
protest of the Peers in 1819. "Theoffenseof publishing a libel 
is, more than any other that is known to our taw, undefined 
and uncertain. Publications which at one lime may be con- 
sidered innocent and even laudible may at another, according 
to circumstances and the different view of public accusers, of 
judges and nf juries, be thought to be deserving of punishment, 
and tluis the anihor or publisher nf any writing dictated by the 
purest intentions on a matter of public interest, without any 
example to warn, any definition to instruct, or any authori^ 
to guide him. may expose himself to a long imprisonment and 
a heavy fine."" 

TH8 MAXIM RKQt'lRINC CRRTAINTV. 

From such solicitude for that liberty whid) ever depends 
upon the certainty of meaning in the criminal statute camel 
the ancient maxim : Ubi jus incertum, ibi jus nullum — 
"Where the law is uncertain, there is no law."* 

Here it is important that we examine a little further into 
the importance of maxims in general and this last one (|uoled 
in particular: "All great Judges and writers have been led by 
maxims. ■ • • Where the maxims lead and illumine 
the great ends of junspnidenec have been advanced; constitu- 
tions and their implications have been respected. Judges who 
understand, respect and cite maxims, save great principles from 
clouds of doubt and miserable equivocation. • • * No- 
thing more greatly obstructs usurpation, abuse of power, and 
arbitrariness in ils edicts than do maxims. • • • jyj 

■l^riMnc't SpHchFt, Vol. I. pp. 71 ID T». Editim a( ISIO. 

"<1 P»rl Deb. 7*T, 

■Blirk'* I.** Dlclioni>7, p. IKC; Bourlrr'f Law DinlooMT, Ra«ri >»■ 

TilloD I. 1, p. S8I, 



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STATUTORV UNCEJITAIKTV AND CONSTHUCTIVE OFFENSES. 

of the admittedly authentic maxims are expressions of mercy, 
reason and moderation, and arc often highly Christain in 
spirit and suggestion. Lovers of liberty consecrate the max- 
ims, oppressors desecrate them. • • « Maxims arc the 
condensed good senNe of all nations. They are the essence of 
wisdom in all ages. Whenever the law is the perfection of rea- 
son, they arc not excluded but they must necessarily be in- 
cluded. Jurisprudence can lay claim to no other clement so 
lustrous, so illuminating and attractive, as its great fundamental 
maxims."" 

Upon the subject of the particular maxim with which we 
arc now concerned, namely "where the law is uncertain, there 
is no law," Mr. Hughes, among other things, has this to say, 
all of which is applicable to our present judicially enacted 
tests of the "obscene, indecent, filthy and disgusting" litera- 
ture and art. 

"Where the rule is alternating, as antipathy or afFection. 
caprice or whim dictates, there is oo law. And so it is where 
for one the foundation for a judgment must be one kind of 
matter, and for another, a dififcrent. Where for one there 
must be allegations and proofs and for another anything, even 
palpably sham and false statements." 

Concerning jurisprudence, he says : "Its value depends on 
a fixed and unifoim rule of action. * • * If water at one 
time would extinguish fire and at another would spread a con- 
flagration; if on one day it would bring life and the next 
death, its value would be destroyed. * • * And so it is in 
language, when words have no fixed meaning. • • • 
Those who rule in disregard of obligation and reason, may be 
likened to the sailor who bores a hole in the ship upon which 
the safety of all depends."" 

POST-ReVOLtrrtONAIV DtSCUSStON ON RBQUtBEUKNTS OP THE LAW 
Alexander Hamilton in discussing this subject, among 
other things wrote: "I agree [with Montcsquicu| that there is 
no liberty if the power of jud^ng be not separated from the leg- 
islative and executive povrers. [p. 4S4.} To avoid an arbi- 
trary discretion in ihr courts, it is indispensable that they should 
be bound down by strict rules and frtctdenis, which servt to 
dtdnt and point out their duty in every fartieutar ease that 

"Hiithri on rrecfdurt v. t, pp. IMS-lOn: Mt •!■«, Cobt on Lillkton, IL 
a, (nutinil), 

"Itugha on PtDcedUTb *, 1, p. 1U7. 

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LITESATUKG AM) (."UNSTlTUTlUNAt. LAW. 

comes before tliem; • • • Thr crratinn of crimes after 
the commission of (he fact, or, in other words, the subjecting 
of men to punishment for things which, when they were done^i 
were breaches of no law lor cuttIO not tiave been ascertained 
to be such because of the uncertainly of the statute] ; and the 
practice of arbitrary imprisonment have been in all ages the 
favorite and most formidable instniments of tyranny, [p. 490.] 
The courts must declare the sense of the law ; and if Hkj 
should be disposed to exercise will instead of jtKlgment, the 
consequence would equally be the substitution of their pleasure 
10 (for) that of the legislative body." (p. 487.J>«* 

"It is law which has hitherto been regarded in countries 
calling themselves civitiied, as the standard by which to 
measure all offenses and irregularities that fall under public 
antmailverston. • • • It (the law] has been recommended 
as 'aHording information to the diflfcrcnt members of the com- 
munity respecting the principles which will be adopted in de- 
ciding upon their actions. It has been represented as the 
highest degree of inequity to try men by ex post facto law, or 
indeed in any other manner than by the letter of a taw, for- 
mally made and sufficiently promulgated.' "" 

Prof, Thomas Cooper quotes with approval the following 
words of Richard Carlile (about A. D., 1820). which have 
as direct and certain applications to the uncertain meaning of 
"obscene" as to the uncertainty about the meaning of "blas- 
phemy" or "Christianity." Carlile wrote: "No one can under- 
stand what is meant by blasphemous publications, or by 
Christianity; and what no one can understand, no law can 
justly take cognizance of. or support."** 

Before this Blackstone had made a similar protest against 
the heresy statutes, although he approved of most of the super- 
stitions of his time, inchiding witchcraft and the prosecu- 
tions for heresies and blasphemy, yet he had too good a legal 
mind not to see the evils of uncertainty as to the criteria of 
guilt, even in laws the object of which he approved. Me 
says: 

"What doctrines shall therefore be adjudged heresy 
was left by our constitution to the determination of the eccle- 
siastical judge who had herein a most arbitrary latitude al- 

"1. Ciod.tn-> Pollilul )anln. |i tM. (A. D.. ITM.) 
"Lan of Libel «ad Lib«ri]r of titt fnm. ^ IST. 

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STATUTORY UNCESTAINTY AKD CONSTRUCTIve 0PFEKSE3. 

lowed him. * * • What ought to hive alleviated the piini*h- 
ment, the uncertainty of the crime, seems to have enhanced it 
in those days of blind zeal and pious cruelty," 

Commenting on the statute I. Eltz. c. 1 repealing fonnt 
stattilr^ againit heresy, he say*: "Thus was heresy reduced 
to a grrnter certainly than before, though it might not have 
been ihc worse to have defined it in terms Mill more precise 
and particular; as a man continued still liable to be burnt for 
what perhaps he did not understand to be heresy till the cccle- 
siaf^tical judge so interpreted the words of the canonical Scrip- 
ture. • • • Everything is now as it should be wilh respect to 
the spiritual cognizance, and spiritual punishment of heresy, 
unless perhaps that crime ought to be more strictly defined, 
and no prosecution permitted even in the ecclesiaslieal courts 
fill Ihc li-nets in question are by proper authority previously 
declared to be heretical."*^ 

In 1884 Sir Kitz-James Stephens, of the court of King's 
Bench, seems almost to agree with Carlile. In the course of 
an argumcm for the repeal of all statutes against blasphemy, 
which he refers to as "an admitted blemish in the existing 
law," and as "es<>entially and fun<lamentally bad," he points 
out the irreconciLible conflict in the various judicial tests of 
guilt in blasphemy prosecutions, and reducing the uncertainty 
of some of these to an absurdity, he describes them "as desti- 
tute of that manly simplicity which ought to be the charac- 
teristics of the law. There is no reason why the law »houl<l 
be so ii>disttnct."" 

Unfortunately in England there is no constitutional limita- 
tion upon Ihc power of Parliament such as would preclude 
the enactment of uncertain laws. What Sir Fitz-James Ste- 
phens contends for as a matter of wisdom to be acted upon by 
the Parliament, in America is a constitutionally guaranteed 
right, and no American judge, conscious of uncertainty in a 
penal statute, can enforce it without violating his oath of office. 

Edward I-ivingston. a U. S. Senator, Secretary of State 
under Pres. Jackson, and Minister to France, reputed to be 
one of the greatest American lawyers of his time, in 182* 
wrote these words: "This dreadful list of Judicial cruellies 
was increased by lesfislalion of the judge!), who declared acts 
which were not criminal under the letter of the law to be 

"1 tnicbleiif. Ba«k tV.. {-{i. It la 49. 

■Srr. "inwpbtiiPT and Bluphraou* LAcl." <) Partmiffhlly Knirw. l*Mlk 
Manh, MM. 

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OBSCENE UTERATORB AKD COWSTITimONAl. LAW. 



punishable by reason of its sfHrit. The sUitute gave ihe K% 
and the tribunals wrote the commentary in letters of blood 
and extended its penalties by the creation of constructive of 
fen«s. Thf vague, and sometimes unintetligible, language era 
ployed in the penal statutn gave a color of necessity to Ibtl 
assumption of power, and Ihe English nation have submitlet 
to Ihe legislation of its courts, and seen their fellow »tibjectj 
hanged (or constructive felonies, quartered for constnictivt 
treason, and roasted alive for constructive heresies, with a pa- 
tience that would be astonishing even if ttieir written laws had 
sanctioned the butchery. The first tonslructive extension of « 
penal statute beyond its tetter is an ex post facto law, as re- 
gards the offense to which it is applied, and is an illegal as- 
sumption of legislative power, so far as it establishes a rule 
for further decisions. In our republic, where the different de- 
partments of government arc constitutionally forbidden to in- 
terfere with each other's functions, tlie exercise of this power 
would be particularly dangerous. * • • It may be proper 
to observe that the fear of these tonsequenees is not ideal, and 
that the decisions of all tribumtU under the common lam 
justify the belief that tvilhout some legislalii-e restraint our 
courts would not he more scrupulous than those of other coun- 
tries in sanctioning this dangerous abuse, {p. 17-18.] It i« 
better that ads of an evil tendency should for a time be done 
with impunity than thai courts should assume legislative pow- 
ers, which assumption is itself an act more injurious than any 
it may purport to repress. There arc therefore no construc- 
tive offenses, [p. 1 18,] Penal laws should be tvritten in plain 
language, clearly and unequivocally expressed, thai they may 
neither be misunderstood or perverted. • • • Xhe ac- 
cused in all cases should be entitled to a public trial, con- 
ducted by known rules," etc. [p. 113.]** , 
At the time when Livingston wrote, Puritan prudery had 
scarcely made a beginning toward its legaliz.ition. Under the 
common law of England before Ihe revolution "obscenity" ia 
literature had been punished only when it was incidental to 
treasonable or blasphemous utterances. Some American 
judges, with that peculiar intellectual capacity which enables 
them without research to determine liistnrical frrts of the past 
on the mere testimany of their inner consciousness, have oftea 
asserted the contrary, but the fact remains that prior to thel 

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plin of ■ ffnil Cwlt," by F.rimrit [.ivinifiton. U p*iei u Indicatfd la tht luL 



38X 






STATITTOXY UNCERTAINTY AND CONSTRUCTIVE OFFENSES. 

Revolution there is no recorderl case of punishment for an ob- 
scene hbcl wherein the obscenity of the publication, merely as 
such obscenity and dissociated from treason and blasphemy, 
was ever punished." 

Thus far wc have examined the statements of those person:* 
without whose warfare against tyranny wc would to-day enjoy 
less liberty than is permitted us. Wc have everywhere found 
that ihe necessity for law ari«s from the fact of everyday ex- 
perience that frail human beings cannot lose their weakness 
by receiving judicial office, and that, because of this, we must 
submit to the penalties which may be determined by whim, 
caprice, prejudice, moral idiosyncrasies and sentimcntalism, or 
«vcn malice, unless the judge's will is always held in subjec- 
tion to the same law which is designed to warn all others and 
defines the conduct to be punished. We have also seen that 
it was the desire to achieve this result which prompted the 
demand for the English Charters of liberty, and we know the 
terrible havoc which has resulted from the neglect of this re- 
quirement that the criminal law should be certain. Further- 
more we have seen how the judgewho insisted on the charter- 
rights, refused to enforce, except as to sheep, a statute penal- 
izing the theft of sheep "or other cattle" because the word 
"cattle" was too vague, holding that since it required judicial 
legislation to make it certain it could not be "the law of the 
land." It was after that construction of "law," and with it, 
that we adopted our constitutions guaranteeing "due process 
of law." 

I therefore conclude that the historical interpretation of 
the word "law" is in accord with its significance as derived 
from a study of its essential nature, anil that among other 
qualities which must inhere in every penal statute, in the ab- 
sence of which it cannot be "the law." nor constitute "due pro- 
cess of law," is that of certainty in the description of Ihe con- 
duct penalised. In other words, according to the historical 
interpretation of "law," "No penal law can be sustained unless 
its mandates are so clearly expressed that any ordinary person 
can determine in advance what be may or may not do under it," 
and by that test all statutes against "obscene, indecent, filthy or 
disgusting" literature and an, and a large number of other 
slalutes similarly vague, fail to constitute "due process of law." 
Next wc will pass to a study of the modem decisions as af- 
fecting the pffiblem umler iliscussion. 

•■~Ob>iTn« LiicruoT* Biidei tbt CamBDo ttm," Al^tMj Lam tnrmtt, Mtf, 
IHTi or pubUik*d In Ck*pMf 111. 

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CHAPTER XXI. 

"DUE PROCESS OF LAW" IN RELATION TO 
STATUTORY UNCERTAINTY AND 
CONSTRUCTIVE OFFENSES. 

PART IV. 

Certainty Required By Modem Authorities. 

The modern authorities arc quite in. definite as the older 
ones in insisting upon absolute certainty in the definition of 
thitt which is penalised, and wc will now proceed to a 
mere compilntiou of authoritative utterances bearing' upon the 
requirement of statutory certainty. Most of these quotations 
arc froni cases construing punitive HUtutes. In others, how- 
ever, we find the principle definitely applied to the end of de- 
claring uncertain statutes to be unconstitutional. First will 
be collected some of the authorities which show that the his- 
torical interpretation of "law," which require* certainty in the 
meaning of penal statutes before they can constitute "law." was 
pcrpctuatc<l by our constitutional guarantees of "due process 
of law." After that will be quoted some judicial opinions 
which specifically declare that (he destruction of all arbitrari< 
ncss of courts, by the certainty of meaning in the statutory 
statement of the criteria of guilt, is a prerequisite without 
which penal statutes do not furnish "due process of law," 

For the benefit of the laiy and the very busy man, I violate 
my ideals of what a legal argument ought to be and pursue the> 
method of merely compiling quotations from judicial opinions, 
which are deemed more or less material to the contention which 
I am making. If I merely cited the opinions instead of quoting 
them, I fear not many of them would l>e read. 

THK HISTORICAL AND SCIENTIFIC INTF.RPHETATION OP "t^^w" t» 
PERPETtJATED IIY OUR CONSTITtlTlON.I, 

In reading the following quotations it is necessary alwaj-s 
to bear in mind that the "settled maxims" — "the principles 
which were before the constitutions" — "the ancient rights and 

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liberties of the subject" from the time of Magna Charia down, 
always included the protection of those accused of crime by 
tRsisUnce upon the maxtm "Vbi jus iHcertum, ibi fus mh//hm" 
(where the law is uncertain there is no law). 

"Due proccsA of law" means "an exercise of the powers of 
government as the selllcd maxims of the !aw permit and sanc- 
tion, under such safegtiards as these maxims prescribe for the 
class of cases to which ihe one in question belongs,"** 

"Even in judicial proceedings we do not ascertain from the 
constitution what is lawful process but we must test their 
action by principles which were before the constittilion and 
the benefit of which we assume that the constitution was in- 
tende<l to perpetuate."" 

"These phrases [of the Constitution | did not mean merci- 
ful nor even just laws but they did mean equal and general 
laws, fixed and certain. • • • The English colonics in 
America were familiar with the conflict between customary 
law and arbitrary prerogative and claimed the protection ol 
these charters, W'hcn they came to form independent gov- 
ernments, Ihey sought to guard against arbitrary and unequal 
governmental action by inserting the same phrase in their 
constitutions. • • • It does not follow that every statute 
is 'the law of the land,' nor that every process authorized by 
a legislature is 'due process of law.' "•■ 

"No man shall be arrested, imprisoned or exiled or de- 
prived of his life, liberty or estate, but by the judgment of his 
peers, or the law of the lami, is so manifestly conformable to 
the wor<ls of Magna Ckaria, that we are not to consider it as a 
newly invented phrase, first used by the makers of our consti- 
tution, but we are to look at it as the adoption of one of the 
greatest securities of private right, handed down to us among 
the liberties and privileges which our ancestors enjoyed at 'Jk 
time of their emitrration. and claimed to hold and retain as 
their birthright. These terms, in this connection, cannot, we 
think, be used in ilietr most bold and literal senses to mean the 
law of the land at ihe time of the trial, because the laws may 
be shaped and altered by ihe lpgi<ihlure from time to time; and 
such a provision, intended to prohibit tlie making of any law 



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•^Uld *. BMid df U*d EUM. 11 Hias. *I7'IM. H(T*f> VMttd Mttak 

•nVHmrt *. BvnbDrr. )B Mkh., SOt ftlt) SUM *. TtobntT. M Ub. Mt. 
^FMot* <. Savacf. TT He. »• tfta. Iin. IMS; U<Tef» Vnlrd Rl(kt^ 



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unpairinfT Ike ancient rights and liberties of the subject, wooM 
under such a construction be wholly nugatory and void. The 
legislature migltt simply change the law by statute, and thus 
remove the landmark aitd barrier intended (o be set up by lhi» 
provision in the Mil of rights. It must therefore have intended 
the ancient established law and course of legal proceedings, bjr 
an adherence to which our ancestors in England, before the 
settlement of this country-, and the emigrants themselves and 
their descendants, had found safety for their personal nglits."** 

This would include the requirement of certainty in tests 
of guilt, as laid down by 0>ke, Blacksionc and others, as 
quoted in the "Historic Interpretation of "Law," " and the 
maxim, "where the law is uncertain there is no law." 

"By 'due process of law' is meant such general and legal 
forms and course of proceeding as were known either at com- 
mon law or were generally recogtiized at the time of the 
adoption of the provision. "*' 

"The words, 'due process of law,' were nndoubtedly in- 
tended to convey the same meaning as the words, 'by the law 
of the land' in Magna Charta. Lord Coke in his commentary 
on these words (a Inst, 50) says they mean due process of 
law. ft is manifest that it was not left to the l^slative power 
to enact any process which might be <Ievise<). The article is a 
restraint on tlic legislative as vrell as the executive and judicial 
powers of the government, and cannot be so construed as to 
leave Congress free to make any process 'due process of law,' 
by its mere will. We must look to those settled usages and 
modes of proceeding existing in the common and statute law 
of England, before the emigration of our ancestors, and which 
are shown not to have been unsuited to their civil and political 
conditions by having been acted on by them after the settle- 
mint of this country."*' 

These authorities sufficiently show that tlie Federal and 
State constitutions guaranteeing "Due Process of Law," 
adopted the conception of "Law" which requires from the law- 
making power an absolute certainty in the statement of its 
criteria of guilt before a penal statute is the law of the land. 
This still further vindicates the historical interpretation of 

•Ism* T. RobUn*. S Cray m UtaL). »« (Ml. a4t): Utiper'* Veucd 
Mckt*. IM. 

"Ci^Ma T. Union, t Nrr.. tM (IM)i UeCiTrol v. W«tk>. * Birw. (Ttan.>, 
■M. 

"MBrrr *. Hobokm. He. 11 He*.. tTt (tT«). (U. S., teW>: DbtMms *, 
Hra Orltani. M U. S.. « (1«TT>, 

386 



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fATUTORY VKCEMTAlSfV AHO COKSTIIIICTIVE OrFEHSBft. 

"law" as hereinbefore made, and aids us to resurr«t and re- 
vivify the ancient maxim. "Where the law Is uncertain there 
is no law." It is hoped that thus may be destroyed all those 
tyrannous laws whose meanings no one knows until after trial, 
and as to which no lawyer can advise, because they arc bora 
of a stupid moral semtimentalism, fathered by those whose 
deniic ignorance of the meaning of law and liberty is evidenced 
in the (act that mere question-begging vituperative epithets, so 
often expressing only diseased emotions, supplant the necessary 
statutory definitions of that which is prohibited. Next we shall 
examine the judicial utterances in so far as tbey may bear 
upon the required certainty in statute law. 

CRRTAINTV IN iriVII. ANU POLITICAL in'.HTUTES. 

These disquisitions were primarily designed to discuss the 
requirement of certainty in penal statutes. In the foreRoing 
essays it seemed necessary to the clarification of our thinking 
to pCHnt out how and why certainty is equally a requisite of 
those statutes which seek to do something else than merely to 
declare and enforce natural justice. As confirming that pan 
of my speculations which asserts that "law" presupposes the 
abolition of all arbitrary power such as unavoidably results 
from the enforcement of uncertain statutes, as well as to em- 
phasize the importance of the maxim, "Where the taw is un- 
certain there is no law," a few opinions in civil cases will be 
qui>te<l, in which the principle of the maxim is applied to non- 
penal Etatuies. 

"It is impossible for a man to regulate his conduct by a 
rule that has no existence: it therefore follows of necessity 
that taws can influence the conduct of men only after they are 
made."" 

"An act may be passed and published by Icf^islatures na- 
tional, $tatc and territorial, with all the usual formalities and 
appendages, and yet be pronounced ik> law when put to the 
judtdal test. • • ■ Strip this act of its outside appendages, 
leave it solitary and alone, is it possible for any human being 
to tell by what authority the seat of Government of Washing- 
ton Territor>- was to be removed from Olympia to Vancou- 
ver?"" (On the implied negative the legislative act was 
annulled. ) 

■n>*it * ii«nsni, I MMhtti ncr.>. tn. 

387 



m 



Dit;"Jt;;iiiy 



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OVSCENB UmATURt AND CONSTTTtmOMAI. 

"The word equity in the onlh admintjtlered to 
jury is synonymous with law, and does not mean some n 
fyied and undeHnobU notion whith the jury may entertai 
the justice of the case, but a system of jurisprtidcnc* govt 
by esublishecl rule:i and bound down by fixeil precedents. 
special jury is sworn to try the cause according to equity 
the opinion they entertain of the evidence, and O^H 
opinion of equit>-, as well as the evidence."** ^^ 

"Every duty becomes such becauw the law makes it so 
is fixed and certain. Unless fired and certain it eannot i 
duty," said in civil action for damages from negligence.** 

"Unless then the description \'m an act of Congress] i 
clear and accurate as to refer to a particular patent [or 
erringly describe the characteristics which make the book 
•cene'] so as to be incapable of being applied to any other, 
mistake is fatal."- 

"We cannot make the language for the Uw-maldng poi 
when the means of construing the language used, in any ol 
than its literal and grammatical sense, i& not furnished by 
act itself or unmistakably indicated by the circumsian 
• • • II [the legislative act] is void because it cannol 
ascertained from its terms, with any reasonable certainty. W 
territory is assigned to Dallas County."" 

These decisions sufficiently demonstrate that as to tb 
civil and political statutes which create or enforce artiA 
rights, it is unavoidable that we apply the old maxim. "Wli 
the law is uncertain there is no law," or else submit to tbo ai 
trary tyranny of judicial legislation. ^| 

THS -reXT-BOOK WBITEHS ON CF.RTAINTV IN PENAt. STATtfl 
"The penal law is intended to regulate the conduct of p 
pie of alt grades of intelligence within the scope of respoi 
bili^. It is therefore essential to its justice and humanity t 
it be expressed in language which they can easily comprehe 
that it be held obligatory only in the sense in zvhich all < 
understand i(, and this consideration presses with incress 
weight according to the severity of the penalty. Hence ev 
provision affecting any clement of a criminal offense it 



"ThoroMn T. 1»b». II G«,. »*1.8M. 

'Fnnivillr 5l Ry. Co, t, Mtadov*. It Ind. App. Ct„ l£t. 
■Tllinrhard t. S|>rtfu«, Ffd, Cat* I»IT. t. 1. p. 9*7, ind catc*. 
•'Kittle *. Sluin, SI Ark. t»II>: wc ttio, FcfTMl *. AltBttL 1 SI 
l*rd. Itll lltPti *' Eokiit. VI ito.. *1. 



iowjl 



38« 



4 



.., V. H 'V 'V 1\ 



STATUTOHV UNCKRTAIKTV AND COKSTSUCTIVE OfFBHSES. 

life or liberty is subject to (he strictest imcrprelaiion. • • • 
It is the legislature, not ihe court, whicb is to define » crime 
and ordain its punishment."" 

Under "Due Process of Law," Ordronaux says: "Every 
enactment is not necessarily "the taw of the land.* • • ♦ 
The phrase means • • • judgment rendered under and 
according to a general system of law which the community has 
esablishcd for the protection of the civil rights of all its mem- 
bers."" 

I have made no investigation of English decisions, but 
chanced to run upon the following expression, which I have 
thought best to preserve by inserting it here, though it will 
add a little to the disorderly character of the compilation of 
this chapter. 

"It would be extremely wrong that a man should, by a 
long train of conclusions, be reasoned into a penally when Ihe 
express words of the act of Parliament do not authorize it."" 

THE STATS COURTS. 

"All must have the equal protection of the law and its in- 
stnmientalities. The same rule must exist for all in the same 
circumstances."*' which cannot be the same if the criterion of 
guilt is uncertain, as it must be where left for judicial crea- 
tion. 

"Words cannot be imported into a statute for the purpose 
ol construing it."" 

"Tlic office of interpretation is to bring sense out of the 
words, not to bring a sense into them."** 

All the judicial "tests of obscenity" violate these rules of 
construction. All such tests are in fact interpolated by un- 
authorized and unconstitutional judicial legislation, and vary 
according to the exigencies of each case and the moral idio- 
S3mcracics of each judge. 

"By the 'Law of the Land' is meant, not the arbttrary 
edict of any body of men, not an act of assembly, though it 
may have all the outward form of law, but due process of 
Uw."»« 

■S«alWrba4, SUMIcrr C«BMnit(>Dii. In Ed.. ri>' tSS-*- 
*0tdfOMBi'* ConulniiiBnal t-tiiiliiiDB (IIBI), p. ISS. 
"Ka *. Boad, I B. (ihI AM. 11 t*Mt ***- 

•'Chic. S4. t. ft R. T. Mow. (0 MiB.. t4I, Wt); Pnnoa *. riillMiI «( 
Hi.. ITI. 

■*Slar< w. P*T*», tV Fm. Urp., Itt, 

"ll(0<»kT *■ Ctoawin. tl N. Y. (1 bni). M*. (Wt). 

••Pttelrtf* Appol. « PCOB. St. 4T*, <4M)i Utm"! VcMfd KldM. >Ml 



DitriijL'u 






OBSCENE UTBIATURE AND COKSTITUTtONAI. LAW. 

"The rights of every indtt/iitual must stand or fail by tht 
same rule of lour thai governs et-ery other member of the com- 
munity uKder simiiar circumstances, and every partial or pri- 
vate law which directly proposes to destroy or affect individual 
rights, or does the same thing by affording remedies leading to 
similar constquences, is void."" 

"Under the requirement of due process of law, the taw 
must provide some just form or nude in which the duty of the 
citizen shall be determined before he can be visited wKh a 
penalty for non-performance of an alleged duty""; which is 
not done if criteria of guilt are left uncertain, and consequeolljr 
to be supplied by the court. 

"Due process of law is a genera) expression and is equiva- 
lent to the 'law of the land.' It permits the deprivation of life, 
liberty or property according to law. not otherwise. It shields 
such right from arbitrary potver. Due p^oce^s of law, in a 
(criminal! case like this, requires a taw describing the offense. 
The definition of the offense, and the authority for every step 
of the trial, must be found in the law of the land. Nothing 
essential can emanate from arbitrary power."" 

"These uncertainties [arising from a statute] ax to whether 
a man would be subject to fine or imprisonment, are not the 
qualities of taw, but rather the qualities of anarchy. * • • 
That laws sh.ill exist which arc not plainly in exact words 
prescribed, so that an individual may know them, which are 
not passed by the deliberation of the three legislative depart- 
ments, each member in each branch sworn to exercise his best 
judgment (or the people upon his own responsibility, is directly 
opposed to every principle of the American or any [other] 
good government."" 

The judicially prescribed and ever varyiitgf "tests of ob- 
scenity" never had the indorsement of any branch of any legis- 
lature. 

"The clause "law of the land' was defined in our earlier 
cases to me^n 'a general and public law, e([ua]ly binding upon 
every member of the community,' but by our later cases it is 

■Willr'a 1l«ir« *. K«nD*d]r. > Ytn,. tU, (SSB): Bmk ol the StM* «. 
Cooptr, t Vitf.. in. 

••fhlUdTlphU *. ScMt. Bl. IVdo. St., ID. (M)i Craig i. Klia«, «S Pc^ 

"StXF ^ 3aln. II Vnh. »l. 1100). 

Tbumlun v. TcT. of WuL., S Wub. Ter. Ktp., Ua. (4M), 



39> 



Die KEsn cy 



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STATtJTOIlV UNCKRTAIKTY AND CONSTRUCTIVE UI'rivNSI^S, 

deAncd lo mean a law 'which embrace^ all pcrson<i who arc or 
may come into like situation and circumstances. ' "** 

If the criteria of pfuilt arc left for judicial creation the law 
does not uniformly embrace all persons who may come into 
like situation. 

"It is obvious there can be no certain remedy in the laws 
where the legislature [or courts in criminal cases] may pre- 
scribe one rule for one suitor or a class of suitors in the courts, 
anil another for all others under like circumstances, or may 
discriminate between parties lo the same suit"* 

The city council of liagerstown, Md., had been authorized 
to pass ordinances "to prevent nuisances and to regfulate and 
control offensive trades" and |>as5cd an ordinance prohibit- 
ing the herding and keeping of domestic animals "without 
permit therefore first had and obtained from the mayor and 
council," but no general rules were prescribed which would 
control the granting of such permits. The defendant was 
arrested for violating the ordinance. The ordinance was at- 
tacked among other reasons for this, that "it places unreason- 
able, arbitrary, and oppressive power in the hand of the mayor 
and council." 

The court said: "In re Christensen (C. C) 43 Fed. 243, it 
is said: "The fact lh.at it permits arbitrary discriminations and 
abuses in its execution, depending upon no conditions or quali- 
fications whatever other than the unregulated arbitrary will of 
certain designated persons, is the touch-stone by which its 
validity is to be tested.' In Cicero Lumber Co. v. Ckero, 176 
III. <^. 51 N. E. 758.42L.R.A.TOS.68Am. St. Rep. lS5.ini 
well considered case, says : 'The ordinance in so far as it in* 
vests the Board of Trustees with the discretion here indicated 
is unreasonable. It prohibits that which is in itself and as a 
general thing lawful and leaves the power of permitting or 
forbidding the use of traffic teams upon the boulevards to an 
unregulated official discretion when the whole nutter should 
be regulated by permanent local provisions operating generally 
and impartially. • • * Tht ordinance in no way regulates 
or control* the discretion thereby vested in the Board. It pre- 
scribes no conditions upon which the special permission of the 
Board is to be granted. Thtis the Board is clotbed witli the 




•Si'Uion Claim t. H«rl* Claim, N Tens. HI. 
«ni Im Co , IM Tfcm.. (»«. 

■Caifetc *. )aM«*flle. M WIk.. *»*, (ITI) 

391 



• 1 BvUun 



Ditfii^eacy 



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ORSCBNE UTCKATUU AMD COHSTITUTIONAI. UIW. 

right to grant tbc privilege to some and to deny tt to otben. 
Ordinances which thus invest a city council or board of trxistces 
with a discretion which is purely arbitrary and which may bt 
exercised in the interest of a favorite few, are unreasonable 
and invalid. The ordinance should have established a rule bj 
which its impartial enforcement could be Necurcd.* "" 

"We hold the ordinatKe here in question to be invalid and 
contrary to law.*'" 

"It has been wisely and aptly said that this is a ffovemtKtid 
of laws and not of men; that there is no arbitrary foxutr lo- 
cated in any individual or body of individuals ; but that all ia 
authority are guided and limited by those provisions which the 
people have, through the organic law, declared shall be the 
measure and scope of all control exercised over them."** 

FEDERAL COURTS. 
"A court is not however permitted to arrive at this (Le^s- 
lative] intention by mere conjecture, but it is to collect it from 
the object which the Legislature had in view and the expres- 
sions used, which should be competent and proper to tppntt 
the community at large of the rule which it is intended to 
prescribe for their government. For although ignorance of 
tbc existence of a taw be no excuse for its vioUtion, yet if this 
ignorance be the consequence of an ambiguous or obscure 
phraseology, some indulgence is due to it, // should be a prm- 
cipte of every criminal cade, and certainiy belongs to omts, thai 
no person be adjudged guilty of an offense unltss it be created 
end promulgated in terms which leave no reasonable doubt of 
their meaning. * • • A court has no option where any 
considerable ambiguity arises on a penal statute, but is bound 
to decide in favor of the party accused. 'It is more consonant 
with the principles of Liberty,' says an eminent English judge, 
'that a court should acquit when the Legislature intended to 
punish, than that it should punish when it was the intent to 
discharge with impunity,' If no sense can be discovered io 
them [the words used in the statute] as they are ttere intro- 
duced, the court had better pass them by as unintelligible and 
useless than to put on them, at great uncertainty, a very harsh 

*ritina Mnror t. Radcckr, «S Hd. MO. tl Am. Rep. IM; Bowock t. <u». , 

9S Ud. 4DD. l2 All «J!. 59 L. K A. Ifl. 9J A S. It ]«4: Co*. SiMkntili t. 
Keith, IM II .S. ItR. 11 Sup. Cl (Al, It I, Ed. T>: Crooler T. fTiriiiiii ur 

u. s. m. II Su^ ci ii, si i. Ed. mo. 

•njayoT. CI >l. V. B. k O. R. Co.. SS .\U. Rep. 490. 

39> 



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STATIMOHV UNCKIITAINTY AND CONSntUCTlVK OKFBWSeS. 

signification and one which the Legislature may never have 
designed."** 

Here we may adapt to new uses the words of Chief Justice 
Best, in I-lctchcr v. Lord, Sondes, 3 Bing.. s8a He says: "If 
this rule is violated, the fate of the accused person is decided 
by the arbitrarj- discretion of judges and not by the express 
autliority of the laws." Also: "The courts have no power 
to create offenses but if by a latitudinanan construction they 
construe cases not provided for to be within li;gis!ative enact- 
ment, it is manifest that the safety and liberty of the citizen 
are put in peril, and that the legislative domain has been in- 
va<led. • • ■ The doctrine is fundamfiital in English and 
Atn^can law thai thtre ton be no conslructive offeiuct; that 
before a man ton be punished, his case must be plainly and 
unmistakably within the statute; that if there t>c any fair doubt 
whether the statute embraces it, that doubt is to be resolved in 
favor of the accused. These principles admit of no dispute, 
and often have been declared by the highest courts, and by fw 
tribunal more clearly than the supreme court of the United 
States.'"" 

"Such an interpretation is not to be adopted, to give effect 
to particular words, which xvill require on the pan of the court 
the introduction of new provisions and auxiliary claitses, which 
the statute neither points out nor even hints at, and yet which 
arc indispensable to make such interpretation serviceable or 
practicable. '"■ 

The rule of this last decision is violated by every one of the 
judicial "tests of obscenity." 

"Penal statutes cannot be extended beyond the OBVIOUS 
meaning of their terms on any plea of failure of justice."*' 

"Statutes creating crime<t will not be extended by judicial 
interpretation to cases not plainly and unmistakably within 
their terms. If this rule is lost sight of the courts may hold an 
act to be a crime when the Legislature never so intended. 
* * * The sense of indignation against Mich vocation or 
conduct should no! permit a violation by the courts of estab- 
lished rules of law, or an unlawful exereise of jurisdiction."** 

"Tlie words 'by law* in section 967 [U. S. Stat.) are cm- 

"EnttrpHn, TtA Cm« Ho. MM, V«L •, n^ It**. 
•U. S. V. ClirHni. Ttt. Cu. Ns. lUl*. Vol tt, p. lat. 
•or. S. >. Buitii. >. U. F*d. Cu«i t^ IM«. K*. ltU9. 
■t]. S. *. GtrrMHa. «l Fed. R.. ■•. 
^J. 3. 1 WhtltlR. Fed. Cm* No. IMM. 

391 



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OSSCSNE LITERATURE AlfD CONSTITUTIONAL LAW. 

phatic and refer in my judgment to a fixed rutt in rcspea lo 
time and manner, and not to a distretionary /rower ve&tcd bf 
statute in a state court."** 

L'nccrtamly arising from absence of specific standarils of 
judgmenl necessarily involves the exercise of discretionary 
power in determining what shall be ihc essence of giiill. 

"A citizen desiring to obey the laws would search the act» 
of Congress in vain lo find that grazing sheep upon a forest 
reserve without the permit of Ihc Secretary of Agriculture, is 
a criminal ofFcnse. It has been suggested that the acts under 
which the indictment is drawn give notice thai the Secretary 
may make rules and regulations, and the search would not be 
complete and the inquiry concluded until it be ascertained 
whether he has made such rules and regulations, the viotattoo 
of which il is expressly declare<l shall be a criminal offense 
But here we are led back to a delegation of legislative power 
The rules prescribed by the beads of the departments are not 
necessarily promulgated. While they may be procured, tbcy 
are not as easily available as are statutes of the United States: 
nor does our system contemplate an examination of those rule* 
for the ascertainment of that which may or may not be a 
crime, for the right to prohibit a given thing under penalty, 
belongs fo Congress alone. * * * tt cohhoI authorise any 
other branch of the government \not eivn the courts] lo define 
that which is purely legislative, and that is purely Ugislative 
which defines rights, permits things to be done, or prohibits 
the doing thereof."" 

"In order to constitute a crime, the act must be one whieh 
the party is able to bnotv in advance whether it is criminal or 
not. The critninnlily of an act cannot defend upon whether a 
jury may think il reasonable or unreasonable. There must be 
some definitcness and certainty."" 

How can any man know in advance from a mere reading 
of the statute by what "test of obscenity" the judge or jur>- 
may determine the guilt or icmocence of his conduct in circu- 
lating a book or picture? Of course he can't know and there- 
fore such laws cannot constitute "Due Process of Law." 

"No penal law can be sustained unless its mandates are 
so clearly expressed that any ordinary person can determine in 

"McTFri 1. Tyon. 7rii. Cix- SSSSII Blitih. I«>. 

KU. S. *. htflbim, 1l« FiiL Dtp. lOBi U. S. t. Em«b, 1M U. S., «n. 

■Toter *. U. S,. SI Fsd. R*».. 91B, 



.IW 



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STATUTOEV UNCRSTAIKTV AND CONSTlUCTtVB OFFENSES. 

advante what he irmy and what he may not do und«r it. [citing 
authorities] Lieb. Herm. 156. In this the author quotes the 
Chinese Penal Code which reads as follows : 'Whoever is guilty 
of improper conduct and of such as is contrary to the spirit of 
the UwK, though not a breach of any specific part of it, shall 
be punished at least forty blows, and when the impropriety is 
of a serious nature, with eighty blows' Tliere is very little 
difference between such a statute and one which would make 
it a criminal offenftc to chagc more than a reasonable rate."^' 
"But to punish a man for the non -performance of a duty. 
it is not sufficient that the law impliedly requires him to do 
the act. The statute must be clear and explicit in its terms, in 
defining thai duly, in order that he may know what he is 
caiUd upon to do, and what if u his duty to avoid."** 

CRRTAINTY SEQUIRED IIV THE U. S. SUPRKUE COURT. 

TI1C Supreme Court of the United State^ whenever called 
upon to express an opinion upon the subject has been uni formly 
insistent upon the requirement of certainty in the statutory 
definition of crimes. 

"There can be no constructive offenses."* 

"It is axiomatic that statutes creating and defining crime» 
cannot be extended by intendment, and that no act, however 
wrongful, can be punished under such a statute unless clearly 
within its terms."'* 

Chief Ju<ittce Marshall said this: 

"The rule that penal laws are to be construed strictly, 
is perhaps not much less old than construction iuclf. It is 
founded on the tenderness of the law for the rights of the 
individuals ; and on the plain principle that the power of 
punishment is vested in the legislative, not in the judicial de- 
partment, ft it the legislature, not the court, which is to define 
a crime, and ordain its punishment. ... To determine 
that a case is within the intention of a statute its language 
must authorise us to say so. It would be dangerous, indeed, 
to carry the principle that a cise which is within the mischief 
of a statute, is within its provisions so far as to punish a 
crime not enumerated in the statute, because it is of equal 
atrocity, or of kindred character, with those which arc eno- 

OaChic ■(«. Rr. Co- >■ DtT » F«d. B*^ SM^r. 
■U. S. *. Dwjtr. M Kcd. Rrp 4W. 
«D. a *. LwtKt. 114 U. S. (IB. 
•TiM r. U- &. lU U S. Ut. 

99$ 



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OBSCENE LITERATURB AND CONSTITUTIONAL 1-AW. 

mcratcd. If this principle has ever be«n recognized to ci- 
pounding cnminal law. it has been in cases of considerable 
irritation which it would be un^fc to consider as prccedcflti 
forming a genera) rule for other cases." 

Before this the Supreme Court had said : "TTie effect of 
the provision (requiring Due Process of Law] is to secure the 
individual from the arbitrary exercise of the powers of govera- 
ment."" 

"If the language is clear it is conclusive. Tfaere can be no 
construction where there is nothing to construe. The wonte 
must not be narrowed to the exclusion of what the le^slature 
intended to embrace, and they must be jueh as to Uavt m 
Ttasonablr doubt upon the subject."^^ 

"Laws whieh prohibit the doing of things, atd provide a 
puniihment for their violation, should have no double meaninp. 
A eitisen should not unnecessarily be placed where, by on honest 
error in the construction of a penal statute, he may be sub- 
jected to a prosecution for a false oath, and an inspector of 
elections »houlcl not be put in jeopardy because he. with equal 
honesty, entertains an opposite opinion. . , . If the legis- 
lature undertakes to define by statute a new offense and pro- 
vide for its punishment, it should express its will in languayt 
that need not deceive the common mind. Every man should be 
able to know with certainty jvhen he is committing a crime. 
. . . It would certainly be dangerous if the legislature could 
set a net large enough to catch all possible offenders and leave 
it to the court to step inside and say who could be rightfully 
detained, and who should be set at large. This would to some 
extent substitute the Judicial for the legislative department of 
the government."^* 

"When we consider the nature and theory of our govern- 
ment, the principles upon which they are supposed to rest, 
and review the history of their development, we are con- 
strained to condufic th.it they do not mean to leave room for 
the play and action of purely arbitrary fower''^; such >.•( must 
result if the statute leaves the test of criminality unccruin. 

"No language is more worthy of frequent and thoughtful 

"U. S. V. WlUbtrnr. t Wh«M. H; m« (Im Pemn t. AtvrfU. l BUtc^ 
(ort JBT 

"Rink ot ColutnUa *. 0*klr)r. « WbeM. U» |tl(>, Uever-i Vartcd 
RlfbU \9t. 

"U. S. *. Raitwdl. TR tJ. S. it Wall) IM. 

"U. S. *. Rrw 01 U. 5. llV-ltl. 

"Viek Wo, *. noplrint, IK U. S, JftS-lGB. 



t>,c..j.acv Cookie 



.STATUTORY UNCERTAINTY AND OONSTKUCTIVE OPFKNSeS. 

con-iideration than thcM (foregoing) words of Mr. Justice 
Mathews."" 

"The words 'due process of law' come to us from England, 
and their requircmcnu were there designed to secure the sub- 
ject against the arbitrary action of the crown and place him 
under the protection of the law. ... In this country the 
re(]uiren)ent5 are intended to have a similar effect against legis- 
lative power, that is, to secure the cilistn against any arbitrary 
deprttfotion of his rights whether relating to his life, his 
liberty or hii property. . . . The great purpose of the re- 
quiretHenls is to exclude everything that is arbitrary and to- 
prieious IK legislation affecting the rights of the citizens."" 

"Laves which create crime ought to be so explicit thai alt 
men subject to their penalties mov know what ads it is their 
duly to avoid. U. S. v. Sharp. Pet. C. C lift. Fed. Case No. 

"In the administration of the criminal ju.'iticc no rule can 
be applied to one class which is not applicable to all other 
classes'""; which is not insured if the tests of criminality are 
of judicial creation. 

"/( u all important that a criminal statute should define 
clearly the offense which il purports to punish, and that when 
no defined it should be within the limits nf the power of the 
legislative body enacting it."** 

l^UISVIUJi k N. »Y. Ca V, OOMMONWEALTH. 

Perhaps the lengthiest statement concerning the require- 
ment of certainty in a criminal statute is made by the Court of 
Appeals of Kentucky, in declaring unconstitutional a statute 
penalizing transportation companies for charging more than 
a jtist and reasonable rate of toll for (he lran»portation of 
pasKitgers and of freight. In that case the court among other 
things said this : 

"That this statute leaves uncertain what shall be deemed a 
'just and reasonable rate of toll or compensation,' cannot be 
denied: and that different juries might reach different conclu- 
sions, on the sune testimony, as to whether or not an offense 

■CdK c. * S. Vt. Rr. •. Eni*. tw V. 3. ISB. 

"IVnl > Wm Viriintii, IT* U. S. 114; ■. t. Mcro*! Vnutd RMitin. l*Sl 
IfllttN V, rtopl*. IIT III ISL (ItM). 

•U. S. ■- IIrt**T, IM U. S. fSa. 11 Sa^ Ct Krp. IW) Dl S. V. Hi* 
B«d(<>r4 Undci C*. fti C>u No. ISMT. 

•■GIlMon t. MlMkHpfH, IM U. S. m. 

-itmr* 1. Soiram, IVO V. & ItT. 

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has been committed, must also be conceded. The criminality 
of the carrier's act, therefore. de|>eiids on the jury's view of the 
reasonableness of the rate charged, and this latter depends on 
many uncertain and complicated elements. That the corpora- 
tion has fixed a rate which it considers will bring it only a fair 
return for its investment does not alter (he nature of the act 
Under ihts statute it is still a crime, though it cannot be known 
to be such unlit after an investigation by a jury, and then only 
tn that particular case, as another jury may take a different 
view, and, holding the rate reasonable, find the same act not 
to constitute an offense. There is no standard whatewir fixed 
by the statute, or attempted to be fixed, by which the carrier 
may regulate its conduct. And il seems clear to us to be utterly 
repugnant to our system of laws to punish a person for an act, 
the criminality of which depends, not on any standard erected 
by the law, which may be known in advance, but on one erected 
by a jury; and especially so. as that standard must be as 
variable and uncertain as the views of different juries tjiay 
suggest, and as to which nothing can be known until after ttic 
commission of the crime. 

"If the infliction of the penalties prescribed by the statute 
would not be the taking of property without due process of 
law, and in violation of both state and federal constitutions, 
we are not able to comprehend the force of our organic laws. 
In Louisville & N. R. Co. v. Railroad G)mmission of Ten- 
nessee, 16 Am. & Eng. r. Cas. 15, a statute very similar to 
the one under consideration wa; thus disposed of by the 
learned judge (Baxter) : 'Penalties cannot be thus inflicted at 
the discretion of a jury. Before the properly of a citizen, 
natural or corporate, can be thus confiscated, the crime for 
which the penalty is inflicted must be defined by the law- 
making power. The legislature cannot delegate this power to 
a jury. If it can declare it a criminal act for a railroad cor- 
poration to take more than a "fair and just return' on its 
investments, it must, in order to the validity of the law, define 
with reasonable certainty what would constitute such 'fair and 
just return.' The act under review does not do this, bat 
leaves it to the jury to supply the omission. No railroad 
company can possibly anticipate what view a jury may take of 
the matter, and hence cannot know, in advaiKc of a verdict, 
whether its charges arc lawful or unlawful. One jury may 
convict for a charge made on a basis of 4 per cent., while 

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another might acquit an accused who had demanded and re- 
ceived at the rate of 6 per cent., rendering the statute, in its 
practical working, as unequal and unjust in its operation as it 
is inddinile in its tciros.' The Supreme Court o( the United 
States, in Railroad Commission Cases Ii6 U. S. 336, 6 Sup. 
Cl. 334. 348, 388, 391. 1 191, refers to this Tennessee case, and 
lubstamially approves it by distinguishing the case then before 
the court from the Tennessee case. This case is also used 
to support the text in 8 Am. & Eng. Enc. Law, p. 935, where 
it is said: 'Although a statute has been held to be unconsti- 
tutional which left it to the jury to determine whether or not a 
charge was excessive and unreasonable, in order to ascertain 
whether a penally is recoverable, yet where the action is merely 
for recovery of the illegal excess over reasonable rates, this 
is a question which is a proper one for a Jury.' Mr. Justice 
Brewer, in the case of Railway Co. v. Dey. 35 Fed. 866, had 
under consideration the provision of a statute similar to the 
one we have before us, and, while the statute was upheld, it 
was only because there was a schedule of rales provided in 
the act which rendered the test of reasonableness definite and 
certain. The learned judge there said : 'Now the contention of 
complainants is that the substance of these provisions is that, 
if a railroad company charges an unreaM>n3ble rate, it shall 
be deemed » criminal, and punished by fine, and that such a 
statute is too indefinite and uncertain. 00 man being able to tell 
in advance what in fact is, or what any jur>' will lind to be, 
a reasonable charge. If this were the construction to be placed 
upon this act a.« a whole, it would certainly be obnoxious to 
complainant's criticisms, for no penal law can be susuined 
unless its mandates are so clearly expressed that any ordinary 
person can determine in advance what he may and what he 
nay not do under it. In Dwar. St. 653, it is laid down that it 
is impossible to dissent from the doctrine of Lord Ccdce that 
"acts of Parliament ought to be plainly and clearly, and not 
cunningly and darkly, penned, especially in legal mailers.' 
See also U. S. v. Sharp. Pel., C. C. 122. F«l. Gas. 16, 364: 
The EnterprtMr, t Paine. ,14, Fed, Cas. No. 4, 499; Bish. St 
Crimes 41 ; I.icb. Hcrm. 156, And the learned judge concludes 
there is very little difference belween a provision of the Chinese 
Code, which prescribed a penalty against any one who should 
be guilty of 'improper conduct.' and a statute which makes it 



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a criminal offense to charge more than a reasonabte ralc- 
The same learned judge discussing the kindred subject of un- 
reasonable difference in rates in Tozar v, U. S, 52 Fctl. 917, 
said : 'But, in order to constitute a crime, the act must be one 
which the parly is able to know in advance whether tt Js crimi- 
nal or not. Tlie criminality of an act cannot (]epend upon 
whether a jury may think it reasonable or unreasonable. There 
must be some dcfiniteness and certainty. When we look on 
the other side of the question, we find (he contention of the 
State supported by neither reason or authority. No case can 
be found, we believe, where such indefinite legislation has been 
upheld by any court when a crime is sought to be imputed to 
the accused. In the case from 77 III. the court said: 'That sec- 
tion, by itself, makes the offense to consist in taking more 
than a fair and reasonable rate of toll and compensation, with- 
out reference to any standard of what is fair and reasonable! 
In such case it may be seen different persons have different 
opinions as to what is a fair and reasonable rate. Courts and 
juries, too, would differ, and at one time or place a defendant 
might be convicted and fined in a large amount for the same 
act which in another place or at another time, would be held 
to be no breach of the law, and what might be thought a fair 
and reasonable rate on one road might be thought otherwise 
upon another road. There would be no certainty of being 
able to comply with the law. A railroad corporation, with the 
purpose of conforming to the law, might fix its rates at what it 
believed to be reasonable, and yet be subjected to the heavy 
penalties here prescribed. The statute furnishes evidence that 
it did not intend to leave the nailroad tn this slate of uncertainty 
and danger, and exposed to such seeming injustice. The 
eighth section provides how reasonable rates shall be ascer- 
tained, what they shall be, and that the railroad and warehouse 
commissioners for each of the railroad corporations in the State 
a schedule of rea.sonable maxim"-Ti rates thus furnishing a uni- 
form rule for the guidance of the railroad companies. These 
authorities and the argument abundantly supporting lliem are 
sufficient. 

"Other objections to the judgment below need not be dis- 
cussed, a.s the one noted in fatal, and the statute cannot be en- 
forced as a penal statute."*" 

In the aggregate the foregoing authorities prove aid dem- 

■LauIwiUc » N. R. Co. «. ConiBanwEallh. U S. W. Rip. tlS-lXL 

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STATUTOKY UNCERTAINTY AND CONSTRUCTIVE OFFEKSBS. 

oostrate that titough often neglected, the ancient maxim "Ubt 
jus incertunt, ibi jus nullum" (Where the taw is uncertain, there 
is no law), is still a fundamental part of our jurisprudence, 
and that in consequence all uncertain penal statutes are uncon- 
stitutional because not constitutii^ "due process of law." 

Since the foregoii^ essays were first published by nie, 
several cases have been decided or come to my notice which 
are more or less related to the principle for which contention 
is herein made. These cases are cited in the footnote.** 

■He JooUm n. StaU. 10 Ind. lU (A. D. IMS). 



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CHAPTER XXII. 

'DUE PROCESS OF LAW" IN RELATION TO 
STATUTORY UNCERTAINTY AND 
CONSTRUCTIVE OFFENSES. 

PART v.— The SynthesU and Ike Applicatt\»i* 

In the foregoing chapters, I justified with considerable 
elaboration the proposition tliat in the United States do man 
can be punished for mere constructive offenses, 

I have gone further and have attempted to formulate a 
statement of the nature of law as viewed in the scientific as- 
pect, in contradistinction to that arbitrary power whicli pun- 
ishes constructive offenses, and I have undertaken to make 
a comprehensive discussion as to what is a constructive of- 
fense in relation to "due process of law." Here I shall un- 
dertake only to summarize those conclusions, already justified in 
various ways, and apply them to our laws against "obscene" 
literature and art 

CONSTRUCTIVE CRIMES CLASSIFIQ). 
Constructive offenses naturally divide into two general 
classes. In the first of these the more direct responsibility for 
the prohibited construction rests with the courts, and arises 
from the judicial engraftments made upon legislative enact- 
ments, while the second class includes those where the more 
direct responsibility for the evil primarily rests with the legis- 
lature for having attempted to construct a wrong, by penal- 
izing conduct not in itself injurious nor of injurious tenden- 
cies according to any known laws of the physical universe. 
These two general classes of constructive crime readily lend 
themselves to a further subdivision according to the varioos 
conditions which conduce to such baneful punishments for 
mere constructive wrongs. These different sources of such 
error will now be pointed out with a little more system and 
elaboration, and it is believed that the following statements 
are justified by, and generalize all, that is included in the dis- 

*S«*i*ed ttom Tlw Cntrol Law Jeunal, Dec Isa.lMI. j 

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STATOTOHY U.NCEHTAIM'V AND CONSTSUCTIVE OPPBHSCS. 

cushion and the authorities cited in the several chapters on 
"due process of law." 

JtmiCML l,KCISLATION UNDES rRETCNSE OF INTEKrRETATIOK. 

The first cla^s of constructive offenses is best understood. 
Here the act under investigation is one which under any of 
the tests prescribed hereafter, may properly be penalized, but 
it is not within the plain letter of the prohibitive <il3(ule be- 
cause the statutory te»ts of criminality, though certain in 
meaning and covering acts of the same general character, man- 
ifestly do not specifically include the conduct under invesliga- 
tion. In such a case the judicial enlargement of the field 
plainly marked out by the statute is so universally recogniicd 
as improper, because judicial legislation, and therefore within 
the domain of the prohibited constructive offenses, as to need 
no ar^mentative support. Indeed, all judicial rules for the 
strict construction of criminal statutes are founded upon the 
necessity of precluding judges from creating law. 

If (he act penalized by the statute under consideration 
is assumed to be one which may be penalize<t, and the conten- 
tion herein made, namely, that none of the judicial tests of 
"obscenity" has that certainty required by the Constitutioa, 
is held good, then the la^^t declared principle has no application. 
On the other hand, if the judicial tests of "obscenity" do have 
the certainty required, then this principle still does annul the 
law, becauses these "tests" of guilt are clearly of judicial cre- 
ation. exten<littg the >tatitle beyond what the worda of the 
legislative enactment necessarily imply. 

AMBir.U0U.1 STATUTES. 
The second class of constrxKtive offenses is less perfectly 
understood. Here the act under investigation is again one 
which, under any of the tests prescribed hereafter, may prop- 
erly be penaliied, but the statutory language is ambiguous in 
its specification of the criteria of guilt. Such statutes often 
seduce judges into an abuse of their power by a misapplication 
of rules of construction. Where the words descriptive of the 
crime are ambiguous (open to several interpretations, some 
or all of which meanings, taken separately, arc very certain in 
their application to all specific facts), it is erroneously as- 
sumed by many courts that it is an exercise of the judicial 
function of sUtutory interpretation to select that one among 



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OSSCCKB UTCRATtntB AND CONSTITtrnONAt. LAW. 

all tfac possible meaning of the statute which is to be a- 
forced. I do not conceive it so. The judicially selected in- 
terprelation may not be the one which the le^slaturc tnleadcd 
to enact. Onainly it has not received the specific sanction 
of the legislative branch of the Govcrnmcni. any more than 
every other possible inteq)retation, and the only conduct whidi 
cao with certainty be known to be within the legislative pro- 
hibition (that is, wnthin the law) consists of those acts wbtcb 
are clearly within every possible meanif^ of the statute. If this 
rule has not been always observed in the matter of ambii^ioas 
statutes it is because judges have not seen clearly the true 
relation between such ambiguity and the lau; as a scientist 
must view it. nor the distinction between judicial legislation 
and judidal interpretation. Very many of the prosecutions 
under the laws in question have resulted merely from a dif- 
ference of opinion between the prosecutor and some sex-re- 
former as to which of the speculative meanings of "obscene" 
was to be enforced. It is an outrage that these defendants 
were never given the benefit of the doubt. 

DNCEFTAIN STATtTTES. 

The third class of these prohibited constructive offenses 
coonsts of those where definite de<tcription of the crime is 
wholly wanting (uncertainty as distinguished from mere ara- 
bigruity), because there is total absence of any certain, clear, 
universal and decisive tests of criminality. Then wc have a 
case for the application of the old maxim: "Where the law is 
uncertain there is no law." In such a case, if the Court should 
supply the tests of criminality so indispensable to the enforce- 
ment of every statute, those tests would nut have the sanction 
of the legislative branch of the Government, and therefore 
could not be thf low, in any criminal case. Supplying these 
tests, or criteria of guilt, is therefore clearly a matter of 
judicial legislation, by means of statutory interpolation, as dis- 
tinguished from interpretation, and punishment thereunder is 
punishment for a constructive offense, and not due process 
of law. 

If in a criminal case a Court should undertake to enforce 
upon any person a judgment which did not conform to gen- 
eral, uniform and certain rules of conduct having an exact, 
verbally forinulatcd existence, which were wholly created by the 
legislative department, and therefore existing outside the mere 



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STATUTOBY UNCEBIAINTV AND CONSTRUCTIVB OFFBN&KS. 

will of the Court, and well known ur easily accessible to all 
prior to the inception of the cau&e of action then before the 
Court — I say, if a Court should undertake to enforce any- 
thing different from such a law, it would not be enforcing tht 
low at all, and to submit to such penalties would be submis- 
sion to a government by the arbitrary and despotic will of the 
judiciary, and not in any sense would this be a govermncnt 
according to law, and this must always be the case where the 
statutory criteria of guilt are uncertain. Criminal punishment 
under such circumstances would be punishment for construct- 
ive crimes, and not due process of law. 

This is perhaps the most appropriate place to quote a few 
'Opinions in which this principle has been applied to statutes, 
ninilar at least in the nature of the uncertainty of their criteria 
of guilt, sometimes resulting merely in the discbarge of the de- 
fendant, and at others in the more specific annubnent of the 
statute. 

INSraUCTlVE rKKCEDENTS. 

The highest court of the State of Indiana lias left us two 
instructive opinions. The court is construing a statute against 
"notorious lewdness or public indecency." No question of the 
constitutionality of the statute was before the court, yet after 
reviewing English authoriliej. the court continues its reflections 
thus: "It would therefore appear that the term 'public in- 
deetncy' has no Hxed legat meanmg — is vagut and indrfinitt, 
and cannot in itself imply a drfimte offense. And hence, the 
courts, by a kind of judicial legislation, in England and the 
United States, have usually limited the operation of the term to 
public displays of the naked person, the publication, sale or 
exhibition of obscene books ami prints, or the exhibition of a 
monster — ads which have a direct bearing on public morals, 
and affect the body of society. Thus it will be perceived that 
so far as there is a legal meaning attached to the term, it ia 
different frxMn and more limited than the commonly accepted 
meaning pven by Webster to the word indecency. A statute 
relative to a misdemeanor of the grade and character of this, 
and prescribing so severe a petialty as the deprivation of lib- 
erty by imprisorunent, ought to ba tiearly worded, so as to 
leave no doubt or ambiguity about its meaning, before it should 
be construed to include a large and undefined class of ofFensei 
against morality. • • • This statute, under such circum- 

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OKSCENE LITEKATVtR AKD CONSTITOTIONAL LAW. 

Stances, should be in itself explicit, and should not depend for 
vitality upon another act defining the meaning of words. * * 
If the statute is given the broad construction contended for 
by the prosecution, who is to determine what phrases amount 
to an offense under it ? Is the public sentiment of each locality 
to be reflected through the jury?"" Conviction reversed be- 
cause act not within the sututc, that being all that was before 
the court. 

Tl»e next case was an appeal from a conviction under a 
statute against heavy hauling on turnpike roads. The statute 
was held void for uncertainty, and the court said : "The lan- 
guage of a criminal statute cannot be extended beyond its 
reasonable meaning, and, whenever the court entertains a 
reasonable doubt as to the meaning, the doubt must be re- 
solved in favor of the accused. The court must expound what 
it finds written, and cannot import additional meaning with- 
out sufficient indication thereof in the words of the statute, 
with such aids thereto as the established rules of law author- 
Ue. • • • Where the terms of the statute arc so uncer- 
tain as to their meaning that the court cannot discern with 
reasonable certainty what is intended, it will pronounce the 
enactment void. * * • There must be some certain stand- 
ard by which to determine whether an act is a crime or not,"" 

In another place I find a quotation to tlie point, but the 
original source of which I do not know with ceruinty. From 
the connection in which it is published, I infer that it is quoted 
from an unofficial report of the remarks of the late Judge 
Lowell, of Boston, while imposing a nominal fine upon one 
Jones, who had pleaded guilty to distributing Clark's Mar- 
riage Guide through the mails. This is of course unofficial, 
but its logic is incontrovertible. 

"Crime should be so clearly defined that there can be no 
mistaking it ; murder, homicide, arson, larceny, burglary, for- 
gery, are so defined that they cannot be misunderstood. If 
obscenity is a crime punishable by fine and imprisonment, it 
ought to be so clearly described that we may know in what it 
consists, and that accused persons may not be at the mercy 
of a man or a number of men who construe what is obscene, 
indecent or immoral by their own spedal opinion or notion of 
morality or immorality. What is obscene to one man may be 

■CM.k T*. Suit, SB K. E. (Ind.) tSS-ttO (IBOl) 
*IItqugt*>l frsn Hcrwood'* DelcnH. 9. If. 

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STATUTORy UNCERTAINTV AND CONSTRUCTIVE UFFCNSCS. 

pure as mountain snow to another. One man should not and 
cannot decide for other men."" 

In another case a similarly vague statute made it a mis* 
demeanor to "commit any act injurious to the public health, or 
public morals, or the perversion or obstruction of public justice 
or the due administration of the law." The court said; "We 
cannot conceive how a crime can, on any sound principle, be 
defined in so vague a fashion. Criminality depends, under it, 
upon the moral idiosyncrasies of the individuals who compose 
the court or jury. The standard of crime would be ever vary- 
ing, and the courts would constantly be appealed to as the 
instruments of moral reform, changing with all fluctuations of 
moral sentiment. The law is simply null. The Constitution, 
which forbids tx fosl facto laws, could not tolerate a law which 
would make an act a crime, or not, according (o the moral 
sentiment which might happen to prevail with the judge or 
jury after the act had been committed."" 

One United States Court, although not asked to do so, has 
all but declared the postal laws against "obscene" literature to 
be unconstitutional — as the ncccs&ary result of their uncer- 
tainty. 

"We have been taught to believe that it was the greatest 
injustice toward the common people of old Rome when the 
laws they were commanded to obey, under Caligula, were 
written in small characters, and hung upon high pillars, thus 
more effectually to in^nare the people. How much advantage 
may we justly claim over the old Romans, if our criminal 
laws are so obscurely written tliat one cannot tell when he 
is violating Ihcm? If the rule contended (or here is to be 
applied to the defendant, he will be put upon trial for an act 
which be could not by perusing the law have ascertained was 
an offense. My own sense of justice revolts at the idea. I 
cannot give it my sanction. • • • The indictment is quashed, 
and the defendant is discharged."" 

LEClSLATIVe PEKALIZINC OF MERE CONSTR(;CnVK INJURIES. 

Fourth: It follows from the fact that human justice and 
a secular state can deal only with material factors, that an of- 
fense to be real and not merely constructive must be condi- 

■Ci fwlc Atidrrw ]Mlnon. It Ark. !««, 

n). S. T. C«m<a»ilor4. » FH. lUfk M*. Woa DM. «l Tn. 

•Am /■■». H'*»Hf, p. Itia, dated A|itII tL, IM*. 



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OBSCENP. UTEtATUKE AND CONSTITUTIONAL LAW. 

tioned upon a demonstraUe and asoertained material injary, 
or upon the imminent danger of such, the existence of whidi 
danger is determined by the known laws of the physical uni- 
verse. Our Constitution, both in its guarantee of freedom of 
speech and press, and in its guarantee of due process of taw 
(as we must understand the taw, according to the scientific 
viewpoint), precludes the construction of mere psychologic 
crimes. Tlie offenses which are based only upon ideas ex- 
pressed or otherwise, such as constructive treason, witchcraft, 
and heresy, either religious or ethical, and all kindred psycho- 
l(^c or other constructive crimes, are prohibited, because the 
very nature of Iht low whose supremacy and processes otir 
ConMitulion g\iarantees Ls such that American legislators can- 
not be permitted to predicate crime upon mere psychologic 
factors. Manifestly this does not preclude punishment when 
these psychologic factors have ceased to be merely such, by 
having resulted in actual material injury as distinguished from 
constructive and speculative injur)'. For example, it does not 
preclude punishment in cases of personal libel, which has re- 
sulted in material injury, or where the uttered opinion has re- 
sulted in actual crime, under such circumstances as to make 
one an accessor)- before the fact, or as to prove a conspiracy to 
secure its commission. 

Furthermore, if the State should be permitted to penalize 
an act which is not an essential element in doing violence to 
that natural justice which can deal only with materia! and 
physical factors, such a statute could not be one enacted in 
the furtherance of the governmental purpose to establish jus- 
tice (material justice), and therefore such a law could not be 
within the legitimate province of such a government as we 
profess to mainuin. Furthermore, such a statute, penalizing 
an act which is not an essential clement in violating natural 
justice, must in itself be the creation of an injustice — that is. 
it must in itself, and from its very nature, authorize an in- 
vasion of liberty, unwarranted by any necessity for defending 
natural justice, or maintaing the greatest liberty consistent 
with equality of liberty, and therefore the enforcement of such 
a statute would be the deprivation of liberty without due pro- 
cess of law, as we must understand "law" if we view it in tht 
scientific =ense, I conclude that every such statute as I have 
last hereinabove described is also an attempt to punish for a 



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kV UNCBITAINTY AND CONSTIUCTIVE OFFENSES. 

tfonstructivc offense — h a violation of our constitutional guar- 
antee of due process of law. 

DIFFICULTY IN TUE AFPUCATION. 

It hardly seems possible that tliere can be much eonflict 
of opinion about the foregoing gcneralitieR. The differences 
of opinion I apprehend will arise chiefly when wc come to 
make deductions therefrom for application to some particular 
statute, and the result comes in conflict with our moral senti- 
mentalisni. Under such circumstances we arc all predisposed 
to error, because our emotions will necessarily blur our intel- 
lectual iniighl AS to the difference between cenainty in the 
very words of the statute, and a strong fccling-ccrtitudc witliin 
us that the legislature must have meant to prohibit exactly 
what Evr ftfl that it ought to have prohibited. Titus moved 
by our feelings, just to the extent that they are intense, we 
shall be certain to read our feeling-convictions into the statutes, 
which, often by reason of their very uncertainty, readily lend 
themselves to this dangerous and almost inevitable evil of ju- 
dicial penal-Iegii^Iation. If this evil can be avoided it will be 
only because our intellectual development is of that superior 
order which dominates the feelings, without ever being over- 
come by (hem, and which at the same lime enables us to pos- 
sess an illuminated view of the point of contact and division 
between judicial {so called) statutory construction and a ju- 
dicial usurpation of the legislative function, under the guise 
of statutory interpretation. These considerations seem to 
make it desirable that the foregoing principles be more elab- 
orately restated with some special attention to the factors 
which necessarily imply unconstitutional uncertainty and form 
the tests by which statutes will be adjudged to be uncertain, 
and consequently a nullity. Thus wc shall still further clarify 
our intellect and fortify ourMlvts against the dangerous, lib- 
erty-destroying tendency to punish for constructive offenses. 

PBNALIZINC ABSTRACTtOKS AND RUOTIONS. 
If the legislative verbiage in a criminal enactment U so 
involved as to make its significance doubtful, or if the offense 
is bunglingiy described by words which symbolize and general- 
ize only a subjective (emotional) stale, associated in the minds 
■of different persons with a variety of mere, peculiarly personal, 
ahstractirms incapable of an accurate, concrete definition that 



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is unifonnly applicable to every conceivable case, and decisive 
I>e)t>n<] all speculative <Ioubt, then, in cither event, that enact- 
ment mu« be declared a nullity, because "where ttte law is 
uncertain there 15 no law." H courts were allowed to decide 
which of possible or conflicting descriptions is to be made 
elTeciive and which annulled, or were allowed to create the 
criteria of guilt, when the legislature has failed to do so, this 
would be judicial legislation. The legislature having furnished 
no exact material for definition, the courts can declare only 
that to be the law which its judges, in the exercise of legislative 
discretion, believe ought to be the law. Instead of deriving 
that legislative intent exclusively by deductions made from 
the legislative language, the judges of necessity read their own 
personal desires into the statutes and dogmatically dedare 
these to have been the legislative intent. 

The judicial power over criminal statutes must be limited 
to a mere re-declaration, or restatement of that which, to 
every intelligent person, is already definitely and clearly mani- 
fest from the actual words of the enactment, and from these 
alone. If it requires more than this to make the statute en- 
forcible, or applicable to a particular case, then the statute is 
a nullity under the maxim, "Where the law is uncertain, there 
is no law." To do less than this, for every word used in the 
enactment, or to do more by importing and engrafting into a 
criminal statute facts and phrases not actually placed there by 
the legislative body, is again a judicial usurpation of the power 
to enact criminal legislation. 

It follows that if those words which alone are actually 
employed in the statute do not unavoidably import such an 
exact definition that every man of average intelligence, by the 
use of the statutory deHnition aione, can determine with math- 
ematical certainty whether a particular act is a crime (or a 
particular book is obscene), then the legislative body has failed 
to create a criminal "law" and the court, being without legis- 
lative power, has nothing to execute, but must declare the 
pretended statute a nullity, because. "Where the law is un- 
certain, there is no law." 

STATUTOKV WORDS MUST SYMBOLIZE DEPINITB ANI> titilVOKU 

CONCEPTS. 

Not quite identical with the foregoing proposition is this 
truism: The power of courts is limited to deductions made 

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STATUTORV VNCnTAINTV AJW* OOtWTHUCnvB OFFESSES. 

from the legislative words; that is, the Rcncral concept sym- 
bohzed by the statutory words may be made concrete to de- 
termine if the specific act is necessarily included in the legisla- 
tive general conception, as thai is exclusively revealed in the 
legislative language. In other words, the court cannot create 
such a concept where the legislative word-symbols do not stand 
for dcRnitc concepts. That again would be judicial legislation, 
not interpretation, because, "where the law is uncert.ain there 
is no law," and a law which requires this to make it effective 
is void. 

If courts can be credited with any power to construe pens] 
statutes, the occasion and subject-matter of construction must 
be found solely in the ambiguity of the word-symbols used in 
the criminal statutes and not in the translation of the interpo- 
lated ideas of the judge. The latter is an act of judicial legis- 
lation, under the guise of interpreting the indefinable nature 
of that which the Iegi»lative words in fact do symbolize. 
Any other rule would authorize arbitrary ex pott facto judicial 
legislation and punishment, and where the legislative word- 
symbols do not stand for definite concepts the enactment Is a 
nullity because "where the law is uncertain there is no law." 

To clarify our minds let this be restated in another way. 
When the word-symbols descriptive of the crime do not stand 
for definite or concrete concepts, nor any sense-perceived, ob- 
jective quality or activity of matter, of present or past exist- 
ence, but represents to each individual only a subjective rela- 
tion between his own purely personal experiences, or the 
abstractions made from them, and his purely personal emotions 
of approval or disapproval, then the words used to describe 
this subjeaive condition must, because of its abstractions and 
emotional clement, ever making it personal and individual, 
always elude accuracy of definition, and the law is void "be- 
cause where the law is uncertain there is no law." 

Whenever we neglect the requirement that every crime 
must be predicated upon some actual sense-perceivable and 
proven material injury-, or the imminent danger of such, deter- 
mined to be imminent by the known laws of the physical uni- 
verse, and therefore accurately definable and so defined in the 
statute — I say. whenever we abandon these requirements, 
we are condemning men on mere metaphysical speculations 
about unrealized psychologic tendencies, or according to the 



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OBSCENK LITERATURE ANI> CONSTITUTIONAL LAW. 

personal ethical scnlimcntaliztiiK, whim, caprice, malice, etc., 
etc., on the pan of those charged with the execution of the 
law, aiid thuK the judge arro^tes to himself the r6Ie of Iesi»- 
lator; and under such enactments convictions are never se- 
cured according to the uniform express authority of any 
statute, and all such convictions inflict punishment for mere 
coniitnictive injuries and are an unconstitutional deprivation 
of liberty and property because not "due proce9.s of law." 
litis error, i repeat, is one easily made if wc are but careless 
about the proper diflfercnl attitudes of mind which should 
characterize our outlook upon penal statutes and those of a 
civil nature which declare and enforce only natural justice; or 
if our vision is clouded as to the difference between dcdiK- 
tions made from the statutory phrases and our feeling-convic- 
tions read into statutes, made hospitable thereto because un- 
certain, and therefore containing little or no limitation upon 
the rcading-in process. 

Under our system (especially that of the Federal Criminal 
law), where legislative power is definitely placed, accurately 
limited, and incapable of transference to a jury, star-chamber, 
or any other department of government, and where in addition 
ex post facto laws arc prohibited, it is manifest that the maxim 
against unceruinly in statutes must be treated as an insep- 
arable, inalienable and inherent part of that liberty of tbc citi- 
zens which is guaranteed by every American constitution. 
Without certainty before the fact, as to what is the law in re- 
lation to it, there can be no such thing as "due process of law" 
in any conviction. If the criminal statute is uncertain, then 
■courts and juries become legislators after tbc fact, if any en- 
forcement of the statute is had. 

It follows that if any American legislative body should 
create a crime without dehning it, such enactment would be ■ 
nullity. Should an attempt be made to penalize the commis- 
sion of "screw-Ioos-ibus." without defining the word, such a 
law would be unenforcible and void. It is intolerable that 
courts should resort to current history and therefrom deduce 
meanings to be read into a penal statute whose words are de- 
void of all dcfinilencss of meaning. By such a process the 
court might conclude that a legislature by " screw- loos-ibus" in- 
tended to penalize certain unpopular practices of "Christian" 
Scientists or Spiritualists. If courts may thus spectitate in- 

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BTATUTOEV UKCERTAINTV AND CONSTHUCTIVE OFreWSES. 

dnctively from current history, personal emotions xnd preju- 
dices, and read the result into penal statutes by dogmatically as- 
scrttng that this or that was the Ic^slative intent, then wc have 
re-established judicial despotism. In the absence of a generally 
known and accurately definable meaning for the word, an en- 
forcement of the law against " screw -loos-ibus" would neces- 
sarily involve the exercise of legislative power, by the court 
or jury charged with its execution, and this enactment, by an 
unauthorized delegation of legislative power, must be specially 
made at each trial to cover only the acts then under investiga- 
tion and must always be ex post facto. For each of the»e 
reasons a law which in its practical administration necessarily 
involves sudi objections must be judicially annulled. 

If a criminal law is so vague as to need interpretation, 
then it should be declared a nullity for uncertainty. Any other 
course necessarily involves on the part of the interpreting^ 
judge that as among all possible meanings he exercise his 
own legislative discretion and read the result into the legis- 
lative intent and phraseology. If the words to be interpreted 
symbolize emotions as their only element of unification, and 
therefore are incapable of accurate general definition, or if the 
materials for a judgment as to the applicability of the law to 
every conceivable case, are varying in different persons, then 
to allow judges or juries to interpret or apply such a doubtful 
statute is to admit their authority to enforce ex post facto cri- 
teria of guilt : which are not public nor general, but of private 
origin in the court, and particular for each defendant. 

The foregoing speculations surest all that has occurred 
to me by way of specifying in general terms the principal 
sources of that outrageous remnant of absolutism which so 
often results, even in our time and country, in the damnable 
practise of punishing men for mere constructive oflfenses. The 
motive for these wrongs is usually a stupid moral scntimental- 
ism and self-righteousness, and very often has its roots in 
religious superstitions of the past. The remedy can be found 
only in securing judges whose intellectual development is 
such as to malce them true scientists of the law. and who with 
clear intellectual insight shall combine that moral courage 
which will make them dare to resist the "moral" rant of a pol- 
itically potent but intellectually bankrupt professional re- 
former. I am sure there arc such judges and that with per- 
sistance and diligence tbcy can be found. 

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OBSCENE LITESATUXE AND COKSTITUTIOKAL LAW. 

THE STANDARD OF CEHTAINTY, 
The Standard of certainty and constitutionality is that a 
criminal statute to constitute "due process of law" must iJe- 
6ne the crime in terms so plain, and simple, as to be within the 
comprehension of the ordinary citizen, and so exact in mean- 
ing as to leave in him no reasonable doubt as to what is pro- 
hibited. Those qualities of generality, uniformity, and cer- 
tainty must arise by an unavoidable necessity out of the 
Ttry letter of the definition framed by the law-enacting power. 
and not come as an incidental result, from an accidental uni- 
formity in the exercise, by courts, of an tmconstitutionalty 
delegated legislative discretion. If a statute defining a 
crime is not self -explanatory, but needs interpretation, or the' 
interpolation of words or tests to insure certainty of meaning 
in the criteria of guilt, then it is not Ike taw of the Land, 
because no such judicial test of criminality has ever received 
the necessary sanction of the three separate branches of legis- 
lative power, whose members alone are authorized and sworn 
to define crimes and ordain their punishment. Laws defining 
crimes arc required to be made by the law-making branch 
of government because of the necessity for limiting and de- 
stroying arbitrariness and judicial discretion in such matters. 
That is what we mean when we say ours is a government 
by lazvs and not by men. It follows that it is not enough 
that uniformity and certainty shall come as the product of 
judicial discretion, since "law" is necessary for the very pur- 
pose of destroying such discretion in determining what is 
punishable. 

In chapters 13 to 17 inclusive it has been exhatistivety 
shown that, whether studied from the viewpoint of abstract 
psycljology, sexual psychologj-, abnormal psychology, 
ethnography, juridical history, ethics or moral sentimentalism. 
or, considered in the light of the mutual deslructivcncss of 
the judicially created criteria of guilt, or their all-inclusive- 
ness and the grotcsqueness resulting from Iheir general 
application, in every aspect we find absolute demonstration 
that tlie statutes against "obscene" literature and art pre- 
scribe NO criteria of guilt. 

In chapters 18 to 22 inclusive it has been demonstnted 
that the maxim, "where the law is uncertain there is no law," 
is an es.senlial ingredient of our constitutional guarantee of 



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STATUTORY UNCERTAINTY AND CONSTRUCTIVE OFFENSES. 

"due process of law," and that therefore all penal statutes 
are unconstitutional if they do not prescribe the criteria of 
£uilt with such precision that every man of ordinary under- 
standing may know with absolute certainty whether or not 
his proposed conduct is a violation of law. 

Co-ordinating these foregoing propositions, we are lead 
by irresistible logic to the conclusion that all statutes herein 
under investigation are void for the uncertainty, yes, the 
total absence, of criteria of guilt. But, in the determination 
of these issues, when the conflict comes between logic 
AND LAW ON THE ONE SIDE AND MORAL SENTIUENTAUSH OK 
THE OTHER, WHICH WILL CONTROL? 



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CHAPTER XXHI. 



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EX POST FACTO CRITERIA OF GUILT ARE 
UNCONSTITUTIONAL. 

Statement of Contention: AU sialutes agotHst "obsctne^ 
"indecent," and "disgusting" literttture and art are violative 
of section 9, article I. of the Federal Constitution, which 
provides that "No • * * • ex post facto law shall, be passed." 
or are j-iolative of stmilar limtlattons in State Constitvtions. 

From every conceivable viewpoint it has now been 
demonstrated that neither these statutory vituperative epitheu 
against "obscene, indecent, lewd, lascivious, or filthy" literature 
or art. nor the unconstitutional, contradictory, and absurd ju- 
dicial legislation under them, afford any certBint>- in the criteria 
of g:uiU, and are incapable of exact or literal application, or of 
producing unifomitty of result. From thi5 it follows tliat 
every conviction under these mis-called "laws" is according to 
^x post facto standards of judgment, created by the court or 
J jury, during the trial of the accused, and enacted only for the 
I one case of the defendant then being prosecuted. In other 
\ words, every conviction under these "laws" has been demote 
I strated to be according to ex post facto criteria of guilt. The 
Congress and State Legislatures, being inhibited against the 
passage of ex post facto laws, the right, thus preserved against 
legislative infringement, cannot be destroyed by the trkk of 
authorizing courts to enact the prohibited ex post facto criteria 
of guilt. Neither does it make any difference whether the 
prohibited legislative power is directly and expressly delegated 
to the courts in plain terms, or is indirectly and impliedly 
delegated, by leaving uncertain the statutory definition of the 
crime, and thus, by silent implication, conferring upon courts 
or juries the seeming duty and consequent implied authority. 
ex post facto, to enact the nece-ssary tests of criminality. It 
must be a self-evident truism that no American legislative body 
can delegate to courts any legislative power to define crime, 
and that, even if such general authority could be delegated, it 
could not include a power to enact ex post facto criteria of 

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EX POST PACTO CirrSSlA OP GUILT A&B UNCONSnTUTIOKAL. 

crime. Such ex post facto judicial legislation violates every 
modern conception of "law" and cannot constitute "due process 
of law." What the lei^stativc department is prohibited from 
doing directly it cannot do indirectly, by a clouded attempt to 
confer upon the judicial department constitutionally-prohibited 
legislative discretion, nor authorize the latter to enact laws of 
«uch a character as even the law-making power is constitu- 
tionally prohibited to enact. 

In the light of what has preceded, the conclusions herein- 
before expressed would seem to be self-evident, or at least to 
be in no need of any further direct argumentative support It 
may be, however, that some comment is necessary to show the 
bearing, upon these propositions, of the power, in libel cases, 
sometimes exercised by jurors, to be judges of the law as 
well as of the fact. 

Our acquaintance with the law of evolution enables us to 
deduce some accurate knowledge of the order and development 
of events in our juridical history. Thus we know that the 
growing coherence of tribal and inter-commtmity life wa-s 
necessarily expressed in rules of conduct increasing in com- 
plexity, number, and definileness of statement, necessitating 
and accompanying an unfolding differentiation of the functions 
of the court from those of other officials, and the development 
of expertness in legal lore, eventually resulting in the differ- 
entiation of the functions of judge and jury. Thus wt came 
to a definite conception of the right to enjoy "liberty under 
law." as distinguished from liberty by permission under 
despotism. The former affords at least to every person 
the protection of precisely stated, and knowable, rules of 
conduct, the observance of which insures absolute freedom 
from judicial penalties. This conception of liberty under laa? 
was crystallized into the constitutional guarantees of "due 
process of law." the inhiMtion against ex post facto laws, and 
the separate lodgment and limitation of the iegislatire 
airthority. 

The most conspicuous instance of judicial atavism is in 
cases of criminal libel, where the jury is authorized to deter- 
mine the law as well as the facts. The immediate purpose 
here is critically to inquire into the origin, jusri6cation. and 
constitutional bearing of this anomaly in our jurisprudence. 
So far as my researches have informed me, there Is not • 
single judicial opinion wherein the considerations which seem 

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OBSCENE LITEEATtJBe AWD CONSTITUTIONAL t-AW. 

to m« mo»t important, atxl herein to be ur^ed. were brought 
to the attention of the court, or considered on judicial initiative. 
More llian any other one man. Tbonias Hrskinr is re^ponuWei 
for bringing about that change of criminal procedure by virtue 
of which, in libel cases only, juror*; became judges of the law 
as well as of the fact<'. In order that we may rightly appreciate 
the bearing of this anomaly of the taw upon our own consti- 
tuttunal problems, we must study ins motives, his ai^utnents,] 
the judicial reply, and the final outcome of the issue, by the 
[lassagc of the Fox Libel Law. In the famous case of the 
Dean of St. Asaph, the final court -issue wa» made, and 
Erskinc's motives were laid bare and his patient research and 
great intellectual acumen produced what probably is the best 
arguments that could be made in support of his contention. It 
is these that wc will now consider critically, in relation to their 
proper influence upon present issue*. 

When we remember the history of the infamous Star 
Chamber court, and the other outraging judges who were so 
servile in the lawless execution of the will of their tyrannous 
royal master, wc are not astonished that Erskinc should have 
found his desire for making jurors juc^es of law in his re- 
flections upon "the danger which has often attended the liberty 
of the press in former times, from the arbitrary, dependent 
judges, raised to their situation* without abilities or worth, in 
proportion to their servility to [royal] power.*" "No man in 
the least acquainted with the history of nations, or of his own 
country, can refuse to acknowledge, that if the administration 
of criminal justice were left in the hands of the Crown, or its 
deputies, no greater freedom could possibly exist than govern- 
ment migfit clioose to tolerate from the convenience or policy 
of the day."* In the United States, our judiciary has never 
been servile to an appointing power in such a manner a». on 
that account, to make it specially dangerous to liberty of 
speech, nor so as to make il specially desirable to invest juries, 
in case* of criminal libel, with authority to ox-errule the jiKlges 
in matters of law. This motive, therefore, does not now exist 
for desiring to maintain an anomaly in our judicial procedure, 
though from an habitual attachment to forms, rather than an 
imderstanding of the reasons for them, we have in practise 

>F.r>kine'> Spnchn.. Kditiun tBlO. V. t. 9. IM. 
>BnUM'* SpMcbn. Edition IIIO. V. I. p. IN. 



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HX IHIST rACTU CSITEUA OV CUIbT ABE tmcuNSTITL'TKINAL. 

continued the procedure for which Erskine so ably contctidecl. 
long after tltc reason for the anomaly has ceased to exiitt. 

To Erskine 's mind no other practical ranedy could have 
presented itself for rcstraininf; the arbitrary power of a 
judiciary tlial wa> always lervile to royal tyram». no other 
mean» to check tlicir proncncss to extend constructive treason 
by judicial legislation, and the consequent lawless abridgment 
of freedom of speech. In the L'nited Suie» there are other 
available means of subjecting courts to a reign of law, and of 
preserving freedom of speech as the condition of all other 
liberties. I'>ec|uent elect ion > an<] legislative control, under 
our suffrage system, are quilc as effective in checking judicial 
tyranny a.t a jury could jxisiibly be. This reason for perpetua- 
ting an anomaly also fails, under present conditions. No 
other reasons being suggested by Erskine, nor by observation, 
we may proceed to consider his legal argument. 

Erskine 's firtl reason, offered in support of his anomalous 
proportion that jurors were the rightful judges of the law as 
well as of the fact, was founded upon ancient precedent. He 
insisted that "it is but as yesterday, when compared with the 
agesof the law itself, that juc^cs * * * * have sought to fasten 
a limitation uprjn llic right and privileges ■>f juror.s totally 
unknown in the ancient limes." and by retracing far enough 
the juridical history, he could find precedents to uphold hit 
contention. 

But the answer to this aigumcnt was ready at hand in the 
fact that this simple judicial method liad long been outgrcram. 
As early as A. U. 1174, llenry divided the Kingdom into six 
districts and assigned three itinerant judges,* and the differen- 
tiation of the fundons of judge and the jury, at least as early 
as the reign of Ehzabeth. had been crystattind into the maxim. 
"Ad qMOfsUonrm facti rrspondnit juraiorrt. ad questionem 
furis respondfttt jwtices."' Mr. Justice Buller said the conten- 
tion of Mr. Erskine had been completely abandoned by alt the 
pn>feMton excqit by Mr K^^kinc. He added: "I do not know 
of any one question in which the law is more thoroughly 
settled."* (jord Mansfield had already expressed his cxmvic- 
tion that such a contention wa.« "perfectly frivolous," and thai 
it was strange he should be contesting points now, that the 

tDrbsirft nil Ibr Gr*nd R«pioiutruxr. |w V. 
•ErthiH-i SpcMhM. Eild«a UIO. V. 1. p. 211. 
•Erahiar-i SpcMbc*. EAthm 1SI0. V. t, p. »& 

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t>»Sat.>tl UTKKATUKE AND CONSTITUTIONAL LAW. 

greatest lawyers in the court had submitted to for years before 
he was bom."* 

After Er;^ine had harked back to the titnc of the SaxOR 
era when "the whole administratiun of justice, criminal and 
civil, was in the haiitU of the people, without the control or 
intervention of any jud