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unhealthy soil; that the way to cure the mind is to treat the
brain; that henceforth the moralist is inseparable from the
doctor, (p. 361) ***** If we look at love from the point
of physiology or of Naturalist philosophy, platonic love will
surely appear to us the most harmful as it is the most im-
moral." 20

But this again is perhaps a partial view. Many without
being unhealthy, develop vices 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 sentimentalism 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 sanitariums
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 therapeutic, 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 us
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 says :
"Before we can fully understand the ethical aspects of chastity,
we must study its biological and sociological sanctions. Con-
duciveness to welfare, individual or social or both, being the

w De Fleury in Medicine and Mind, p. 300.

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UNCERTAINTY OF THE

ultimate criterion of evolutionary ethics, the demand for chas-
tity has to be sought in its effects under given conditions. * * *
We 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 missionary defends it ; the missionary holding
that 'superabundant population, in an unfertile country, must
be a great calamity, and produce "eternal warfare or eternal
want." ' ' m

Likewise a convention of Christian missionaries, for the
moment subordinating the absolute moral creed of their reli-
gion to practical ends, once resolved that Mohammedan poly-
gamy was not a barrier to acceptance of the convert to the
orthodox fold.

But, I must return to Spencer. It seems to me that when
we have achieved a truly scientific ethics, we will probably
have unified all the scientists' seemingly conflicting criteria
of right conduct. The work before us is outlined by him in
these words : "The view for which I contend is, that Morality
properly so-called the science of right conduct has for its
object to determine how and why certain modes of conduct are
detrimental, and certain other modes beneficial. These good
and bad results cannot be accidental, but must be necessary-
consequences of the constitution of things ; and I 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
produce unhappiness. Having done this, its deductions are
to be recognized as laws of conduct; and are to be conformed
to irrespective of a direct estimation of happiness or misery." 28

As the stars do not create the laws which they obey,
so men cannot create the moral 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-infliction from becoming
a social menace. The ethical problem begins only when others
are directly affected 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

M Spencer's Principles of Ethics, v. 1, pp. 448-449. Italics are mine. T. S.
^Principles of Ethics, vol. 1, p. 57.



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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

of ethical science to discover, amid infinite complexities, what
is the natural law of life in interdependent human existence.
Just 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's
moral law is unavoidable, and for its violation there is no for-
giveness 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 "mor-
ality" is not a fixed and certain thing, about which all are
agreed; but on the contrary 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 truths, and their difference in the end to 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
results 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

292



UNCERTAINTY OF THE MORAL TEST OF OBSCENITY.

constitutional and unconstitutional statute, whether a man
of ordinary intelligence is, or is not, able from a mere reading
of the law to know in advance of a verdict by what criteria of
guilt 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 in relation to sex problems. The
variety in statutes by which we regulate marriage, divorce and
other phases of sexual activities, sufficiently evidences this.

This difference may be further illustrated by quotations
from modern ethicians who have entertained opinions or made
arguments bearing upon sex-ethics which are of a character
such as have not yet received general approval.

REV. JOHN 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
evil in itself. For it must not be thought (as some seem to
fancy) that marriage makes that good which was in itself
evil. For if once evil in itself it must eternally and universally
be so, and consequently even 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 it, such as vol-



293



OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

untary pollution, lascivious embraces, etc., must be accounted
lawful, which are yet condemned by all moral and divine
writers. The reason for the consequence is, because there
seems to be nothing in such abstract act besides the simple
perception of the pleasure of the sixth sense. For, as for ex-
cess, captivation of spirit, too sensitive applications and the
like, these are merely accidental, and equally incident to the
same acts in all other circumstances." 24

JOHN STUART MILL.

"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 personal 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 harmony 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 make 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." 2 "

REPORT OF PROF. FELIX ADLER AND COMMITTEE OF FIFTEEN.

"The proposition is to exclude prostitution from the
category of crime" [and treat it only as a sin.] 28

PROF. CH. LETOURNEAU.

"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-

*The Theory and Regulation of Love, pp. 92-99-171-173-179.
On Liberty, pp. 165-172, 174,' Burt Edition.
"The Social Evil, p. 177.

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UNCERTAINTY OF THE

munity will intervene only in order to safeguard that which
is of vital interest to it the fate and education of the
children." 27

HERBERT SPENCER.

"As monogamy is likely 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 affection will be held of
primary moment, and the union by law as of secondary
moment." 28

WORDSWORTH DONISTHORPE, M. P.

"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 gods, 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 them
from without. Even the terrors of religion could not have
prevailed against the impulses of love, any more than 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 Olympus sided with the
abductors of Briseis ; the god of the Hebrews rewarded the
virtue of Solomon with hundreds of wives and concubines ;
the god of theJCoran offers eternal promiscuity to the faith-
ful, and the god of the dark ages only followed the rule binding
the gods generally, by enjoining monogamy on all who would
be saved. No ; the tendency comes from within. I 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." 29

C. STANISLAND WAKE.

"Some explanation is perhaps due why sexual morality

"Evolution of Marriage, p. 358.

Principles of Sociology, v. 1, part 2, p. 765 Appleton's Edition.

"Law in a Free State, p. 211.

295



OBSCENE LITERATURE 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 in
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 are better fitted for independent
inquiry." 30

DR. HAVELOCK 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 in
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." 81

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. * * * While 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." 32

ELSIE CLEWS PARSONS, PH.D.

"We have, therefore, given late marriage and the passing
of prostitution, two alternatives, the 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

^Evolution of Morality, v. 1, p. VI.

^Revised reprint from Westminster Review, Oct., 1888.

82 Loves Coming of Age, pp. 147-148.

2 9 6



UNCERTAINTY OF THE "MORAL" TEST OF OBSCENITY.

-of only if indulged in at the expense of health or of emotional
or intellectual activities in oneself or in others. As a matter of
fact, truly monogamous relations seem to be those most con-
ducive to emotional or intellectual development 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 un-
successful, and in the absence of offspring without suffering
any great degree of public condemnation." 33

GEOFFREY MORTIMER.

"Strictly speaking, a marriage is felicitious when, through
a fortunate chain of circumstances, there is complete mental
and physical adaptation of two fervid lovers to each other's
tastes, opinions, sympathies 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 must 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 religio.us, mocks at morality, derides the
promptings of a healthy conscience and scoffs at reason." 34

PROF. WESTERMARCK.

"When both the husband and wife desire to separate, it
seems to many enlightened minds that the State has no right
to prevent them 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 supervision of one
parent only, than of two who cannot agree [p. 398] * * *
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

"The Family, p. 848.

4 Chapters on Human Love, pp. 221-284-286.

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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

to marriage, and tolerated marriage only because it could not
be suppressed, [p. 439.] * * * When a man and a woman,
tied to each other by a deep and genuine affection, decide
to live together as husband and wife, though not joined in
legal wedlock, the censure which public opinion passes upon
their conduct seems to an unprejudiced mind justifiable, at
most, only in so far as it may be considered to have 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 of
view under different conditions, social or psychical, and all
of these conditions are not in any considerable degree com-
bined at any special stage of civilization." [p. 440.] M

DR. DE FLEUREY.

"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." 8 *

As I am reading proof there comes to me a journal
edited by John Trevor, the author of "My Quest 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, his 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 Origin and Development of the Moral Ideas, vol. 2, at pages noted-,
"Medicine and Mind, p. 866, et seq.



UNCERTAINTY OF THE MORAL TEST OF OBSCENITY.

still more groveling 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 State enforces the denial.

"When a plant you 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 acorn as the fall of
the acorn from the oak is the birth of a soul into the world.
Puberty is the swelling of the acorn under the genial influences
of Spring. Then the soul of youth has need of Knowledge
and Culture and Freedom for Self-expression. These the
world refuses. This is the Tragedy of Youth. The world
sears with a hot iron the acorn that begins to swell. The
man never recovers wholly from the injury done to the
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/' 87

PREDESTINATION AND IMMORALITY.

This then brings me back to the starting point of the
conflict between religious morals and ethical science which,
in one of his essays, Thoreau sums up in these words : "To
regret religion is the first step towards moral excellence."
Macaulay in his essay on "Civil disabilities of the Jews," uses
this language : "The doctrine of predestination, in the opinion
of many people, tends to make those who hold it utterly im-
moral. And certainly it would seem that a man who believes

"The One Life. No. 1, pp. 19-20.

299



OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

Tiis eternal destiny to be already irrevocably fixed is likely to
indulge in passions without restraint and to neglect his relig-
ious duties." 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 first determined his conclusions concerning
divorce and polygamy, as 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-
destination, and Milton's views about divorce and polygamy
and the numerous opinions of secular scholars herein quoted,
are criminally obscene because a court and jury believe the
"tendency" of these doctrines "is to deprave and corrupt the
morals of those whose minds are open to such influence and
into whose hands a publication of this sort may fall." 8 *

Judges, with Comstockian or ascetic minds or some pe-
culiar religious bent, may answer "yes" and can point to a



Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 29 of 43)