Theodore Albert Schroeder.

Obscene literature and constitutional law; a forensic defense of freedom of the press online

. (page 26 of 43)
Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 26 of 43)
Font size
QR-code for this ebook

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, determines
what is prohibited.

In Greece, "it was lawful in some cities for courtezans



to wear light, transparent garments ; but at Sparta, as may be
imagined, the reverse was the rule, semi-nudity being the
badge of virtuous women." 26

This 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 their share of bravery and honour. Hence they
were furnished with sentiments and language such as Gorgo,
the wife of Leonidas, is said to have made use of. When a
woman of another country said to her: 'You of Lacedaemon
are the only women in the world that rule the men/ she
answered : 'We are the only women that bring forth men/ " 2T

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 I7th century, that the
maidens went naked and only those who had parted with
virginity covered the sexual parts. 28


Certain Mohammedan women who can easily be induced
to expose their naked bodies to the male gaze are 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 to 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 the 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

Danger's History of Prostitution, 46.

' a Archaeologia Graeca, p. 645, Glasgow, 1837.

M V. 3, Bayle's Historical and Critical Dictionary, 774. Edition of 1734.



woman who would prostitute themselves cheaply, will not
for 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
suckling her babe. Many civilized women are utterly in-
different to this, as one may see in 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 are 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. 2 * 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 was in-
corporated into the statute ?

In several countries, the consummation of the marriage
by coitus in public is a part of the ceremony. 30 Among the
Otaheitans, even recently, a girl is initiated 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
the 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. 81

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 in 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 embraces.
In some places women have been allowed to go naked until

"Ellis' Modesty, and Bebel's Women Under Socialism, 18. citing Bachofen,

*Ellis' Modesty, p. 17, and others.

"We strop's Primitive Symbolism, pp. 89-40.



they were married and required to wear clothes after mar-
riage. 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 state 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 place, or
bathe in the same pool; second, if a man sends sandlewood,
victuals, drink or other presents to a female; the third sort
seems the most serious, namely, when a man and woman
sleep 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 shaster for
adultery are too barbarous for enumeration." 35

"It is related by Dr. Tournefort that in a Turkish harem
he was allowed to see only the arm of a sick female pro-
truded through a screen, without further opportunity for
determining the nature of the malady." 36

We are in the habit of denouncing Turkish polygamy
as indecent and an argument 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 of judgment as between these conflicting
pruderies ?


Here we will exhibit a variety of differing conceptions of
modesty as they 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
second, that therefore in each individual his own notions of

"Unmasked, Dr. Mary Walker, p. US.
"Woman, Past and Present, p. 828.
"Woman, Past and Present, p. 10.



modesty are determined by his educated emotional and
ideational associations and the degree of his sexual hyper-
aestheticism. Keeping this 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
Tertullian all write of it.

The Rev. Dr. Ruffner, after quoting these fathers and
other evidences, summarized his conclusions as follows:
"The practise of unmarried men some of them clergymen
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." 37

"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 with
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
meritorious." 88

Writing on the earlier period, Gibbon states this: "The
primitive church was filled with a great number of persons of
either 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." 8 *

Washington Irving tells us of the bundling habit in New
England as "a superstitious rite observed by the young peo-
ple of both sexes, with which they usually terminated their

"Ruffner's Fathers of the Desert, 227-232-237-238; Gibbon's History of
Christianity, p. 161, and authorities cited.

U A Paraphrase on Historia Flagellatium, p. 246.
"Gibbon's History of Christianity, p. 161.



festivities, and which was kept up with religious strictness by
the more bigoted and vulgar part of the community." 4 *

The practise was permitted by the Puritans and found
defenders among the clergy as a custom that prevailed "among
all classes, to the great honor of the country, its religion, and
ladies." 41

Tolstoi tells us that in parts of Christian Russia young
people, during the years of betrothal, spend their nights to-
gether without losing their virginity. To him it illustrates
the blessed possibility of spiritual communion, untainted
by fleshly desire. 42

If memory serves me, Tacitus informs us that in his time
the 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 the sixteenth century. From this fact as well
as from the custom of public bathing, we 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. 4 *

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. Theodpret,
Baronius Danaeus and St. Epiphaneus all mention them,
as conducting their devotional exercises in complete nudity,
and, according to some, those were expelled from the
congregations who did not remain continent. Upon this last
there is disagreement. 44

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 chisms in the church arose from the pro-
test of women against this practise, and a demand that they
be allowed to baptize their own sex and the opposition of
priests to that demand. 48

"Knickerbocker Hist, of N. Y. 4 Am. ed. p. 211 ; Stiles' Bundling, p. 49.

"Stiles' Bundling, pp. 51-58.

42 Die Sexuelle Frage, 36-38.

^Rudeck, Geschichte der offentliche Sittlichkeit, p. 399.

**V. 1, Bayle's Dictionary, pp. 110-111, edition of 1734, and citations; 1,
Heckethorn's Secret Societies of All Ages and Countries, pp. 95-96; Gage, Woman,
Church and State, 92; Two Essays on the Worship of Priapus, pp. 172-174, and

"Gage, Woman, Church and State, 215, citing Waite's Hist, of the Christian
Religion to A. D. 200, pp. 23, 384, 385; Benson's Christianity of Mankind, vol. 3,
886-393, vol. 3; Analecta; Philosophical Dictionary; Pike's History of Crime in
England, and citations.



Ciampini gives a large plate representing the baptism
of Agilulf and Theodelinda, King and Queen of the Longo-
bards, 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. 46

Catherine, the first wife of Peter the Great, was received
into the Greek Christian Church by a similar rite. New con-
verts to that church are plunged three times, naked, in a
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 im-
pudence of this shameful ceremony." 47

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
was 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." 48

The late William Hepworth Dixon, once the distin-
guished editor of the London Athenaeum, gives us a most in-
teresting account of these people. 49

In the 1 3th century they became known as the Adamites
or Picards. Under the leadership of Picard, if not before and
if not in other branches, the ascetic restraint of continence
was abandoned under the doctrine of perfectionism. 80

46 Lundy, Chapter on Baptism, Monumental Christianity, 389.
''Count Segur, in Woman's Condition and Influence in Society, here requoted
from Woman, Church and State, 216.

"Mosheim Bed. Hist, p.377, Bait. ed. 1833.

"Spiritual Wives, Chap. 14. See also Lea's Hist, of the Inquisition, 123-407.

4, Bayle's Historical and Critical Dictionary, p. 628.



At Amsterdam in 1538 a dozen religious zealots, men
and women belonging to the Anabaptists, went out upon the
streets in nudity, and "they did not so much as leave a ribbon
upon their heads to keep their hair tied." 51

Within the past two decades we have seen a Russian
Quaker sect of Canada called Doukhobors making pilgrim-
ages in large numbers, both men and women being in entire
nudity. 82


"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." 53

Ammon 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 you
who profess chastity, to look upon a woman in so confined a
dwelling. Let us, therefore, if it is agreeable to you, perform
our exercises apart." He concurred. 64

Ligouri 65 in prescribing the requirements of modesty,
which some people in "good society" still follow, while others
sneer at it, says : "A religious must practise modesty in sitting
.... she must avoid every slothful posture and must abstain
from crossing her feet and putting one leg on the other." 88

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 tendency of such
open osculation to the rising generation, they struck him off
the list of their order." 57

In a publication at the end of the i7th century, this state-
ment is found: "This world too much allows nakedness in
women. * * * * The faulty abuse is strengthened

"4, Bayle's Historical and Critical Dictionary, 628.
^Maude's A Peculiar People, 241.
"Hardy's Eastern Monasticism, p. 64.
Day's Monastic Institutions, p. 5.
M In True Spouse of Christ, Chap. VIII, See's 1-11.
Day's Monastic Institution, p. 266.

"Woman, Past and Present, 29. Lecky's Hist, of European Morals, T *,



through a long use, and now passed into a custom so general
that it has become common almost to all women and maids
of all sorts of conditions. * * * * Even at the foot of
the altar and in the very tribunals of penance," they came
"half-naked" ! The protesting priest begs that they "at
least make some difference betwixt the house of the Lord
* * * * and those which are profaned by the libertinism
of the age." 58

In the portraits of that period 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 people are still shocked. Now, then,
what is the degree of statutory sexual delicacy which limits
criminality? Where between the waist and the face, does the
statute draw the line beyond which nudity offends 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
sufficiently uniform to make unnecessary a statutory defini-
tion of "obscene"?

At the close of the i8th century, we find a book written
"Chiefly on the 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 are 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 time 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 see 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 art 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 Just and Reasonable Reprehension of Naked Breasts. Land. A. D. 1678.



mnd she seems pure when balanced against the pretender to
modesty who sends -for a doctor to be digitated. Shame on so
abandoned a practise," etc., etc. 59

Here then is a man who admits that they are "pure," and
who tells us that to educate women, to allow them to play
musical instruments in public, and to have a male physician
attend a woman during parturition, or to argue that special
skill is desirable at such times, all tend to deprave the morals
of those who are open to such influences; and elsewhere he
says that not one is beyond such influence. 60 On these and
succeeding pages this extremely modest author strangely
enough writes about the means of inducing sexual excite-
ment that which would now be punished as criminally

This same author 61 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 world thinks too lightly of
the offense. He makes no sacrifice of character. A man
cannot sink to the level with an adultress 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 Clement 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. 65 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 are not ashamed to strip be-
fore the spectators as if exposing their persons for sale. The

^ "Thoughts on the Times, (A. D. 1779), pp. 85-94-199. To the same effect
aee "Man-midwifery analyzed and the tendency of the practise exposed." Lond.

pp. 184 and 190.
w p. 73.

"7'tpo Epistles Concerning Virginity, vol. XIV, Antenicene Christian
Library, p. 884.



baths are opened promiscuously to men and women. Cyprian
found it necessary to upbraid even virgins vowed to chastitj
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 Ori-
gines and his monks [who castrated themselves] felt that
they were gradually ascending in grace when they submitted
to this sacrifice." 67


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 customary 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. 68 Which of these
conceptions of modesty does "common knowledge" compel us
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." 69

With the Chinaman, accustomed to nudity, secretiveness
by the use of clothing induced greater lasciviousness than
nudity would evoke. The nun, through perverted educa-
tion, expected lascivious designs in others when they had no

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-
married, to speak of going to bed, rising, etc. 70 May the

"Ellis's Psychology of Sex, (Modesty), 19 and 20.

Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 26 of 43)