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considerable 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 the 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 fide expression of opin-
ions commonly regarded as immoral." 39 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

U. S. vs. Debout, 28 Fed. R. 523.

89 Sir James Stephen's "Digest of the Criminal Law," page 97. If one were
to consider critically the matter of finding the dividing line between "immorality
in the broader sense" and other kinds of immorality, he might conclude with Dr.
A. W. Herzog that "Morals are imaginary." See Harper's Weekly June 12 1909.
For other unorthodox views of sexual morality, see " Blasting the Rock of Ages,"
by Harold Bolce, in The Cosmopolitan Magazine for May, 1909.

3 00


a man from reading the statute or even the judicial legislation
under it inform himself by which 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, dictated by caprice, not by any legislatively
created criteria of guilt.


Suppose a person to be indicted for selling a deadly poison
in violation of law. It is proven or admitted that the defend-
ant sold some of the alleged poison to many persons, wha
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 instruct them that
they may look at the alleged poison, 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 find the defendant
"guilty." It requires no argument for anyone to see the out-
rageousness and utter lawlessness of such a proceeding.

In all cases of "obscenity" juries are instructed to de-
termine guilt according 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 see the
outrageousness 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 see the necessity for insisting upon their application
in every such trial. In the case of "obscenity" we know of no
such certain standard for determining (the existence of "moral
poison" and so have not 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 suggest
the indispensable necessity of mathematically-certain criteria
of guilt.



Here we will concern ourselves only with the further
demonstration of the uncertainty of these laws by evidences
taken from our variety of judicial and official manifestations
of modesty. Later we will make some unofficial applications of
the judicial tests of obscenity to demonstrate their utter

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." 74

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 hand,
chastity is not a real quality of records, then we have the
spectacle of a judicial tribunal solemnly and deliberately cre-
ating 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." 75

The courts of olden times seem to have given but a lim-
ited sanction to judicial prudery or to the official moral snob-
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 Bayle in the seventeenth
century. He says:

"When a nation [are] agreed in calling some words im-
modest ... all the members of the society are 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

"Republished from The Am. Journal of Eugenics, Dec., 1907, and The Albany
Law Journal, Aug., 1908.

T *Cow. vs. Sharpless, 2 Serg. N Rawle, 91-113 (Penn. 1815). Com. vs. Tar-
box, 1 Cush. (Mass.) 66. Com. vs. Holmes, 17 Mass. 336.

"Bradlaugh vs. Queen, S Q. B. 607-620. See also Peop. vs. Daniley, 61
Hun, 679, and, State vs. Hanson 23 Tex. 284.



they 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 the 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. I 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." 77

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
practise 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 being admitted to the chamber of parturition. 78

The above-described mode of judicially determining ma-
terial sexual facts, and the "judicial congress," which will be
presently discussed, are both the outgrowth of a very ancient
custom of judicially 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 submit,

7fl V. 5, Historical and Critical Dictionary, 848. Edit, of 1737.
"Remy de Gourrnont, Le Livre des Masques, p. 184, requoted from Ellis,
Studies in Psychology of Sex: Modesty, p. 21.

'"Nelson's Rigktt of the Clergy, pp. 78-80. (A. D. 1709.)



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 under like circumstances,
and again without finding any evidence of lost virginity. If
it were not for our legislatively enforced ignorance of sexual
matters it would have been known that examinations of the
hymen furnish no evidence as to chastity. 79

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 demon-
stration of his capacity 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 questions.
The great antiquity of this custom is proved by the seven-
teenth article of the Capitulars of Pepin, in the year 752,
which bears a direct allusion to it; inasmuch as that article
established as a principle that the impotency of a husband
should 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
deciding questions of impotency, is still further proved by the
President Boutrier and by other writers, who assert that 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-
teenth 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." 80

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 Lucian in his
Eunuchus. 'Nee inimicum videri debet probationis genus

w Maj. R. W. Shufeldt, M.D., in Pacific Medical Journal for January, 1906-
"Davenport, On the Powers of Reproduction, p. 52.



quod solum est,' says Quintilian in his seventh 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 against one who, being
accused of wanting testicles, would not submit 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

"I add, that in such 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 from
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
Clemens Alexandrinus (7 Strom.), and by Suidas in verbo
Jesus, that the Virgin Mary submitted to it, the sanhedrim of
the high priests having ordered that she should be inspected,
to discover whether she remained a virgin, 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 Joseph,
or as the son of the living God and of a virgin-mother. Chaf-
fangeus recites the story at length in the fourth part of his
Catalogus gloria mundi, distinct. 6." 81

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, an d the judicial custom then

81 4, Bayle's Historical and Critical Dictionary, 805. Edition 1787.



reverted to the physical examination of the sexual parts ; but
elsewhere the trial 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 the 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. 82


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 image
and statue is the devil's chair." 83

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 shady
pretenders, whose purity, not being of the right sort, has gone
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 every
weapon in her armory by which she can pierce to the grosser
passions of men/ Burton, in the Anatomy of Melancholy
(Part III, Sec. ii, subsec. iii), deals at length with the 'allure-
ments of love/ and concludes that the 'greatest provocations
of lust are from our apparel.' " 84

The Rev. Frederick George Lee, in an expostulation with
the Royal Academy of Art, at considerable length endorses
the position of St. Chrysostom, above quoted ; but the academy
continues to hold to the contrary view. Dr. Lee in part says :

B 4, Bayle's Historical and Critical Dictionary 803 to 807. Edition of 1737.
Davenport, On the Powers of Reproduction, pp. 47 to 60.

8 M Just and Reasonable Reprehension against Naked Breasts, 28.

*Ellis, Psychology of Sex: Modesty, 39, and Erotic Symbolism, p. 15. See
also Fables of the Female Sex, p. 62. (1766.)



"Permit me, in the remarks 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.

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
garmets, and rushed from the place in a storm of passion." 85

Here, then, we have a clear portrayal of two distinct
and conflicting conceptions of modesty: St Chrysostom, the
Rev. Dr. Lee, and the unfortunate woman representing the
one, and Du Maurier, the professional model, and the sexual
psychologist representing the other.

Our obscenity statutes give us no information as to wheth-
er the legislature intended to 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 civilized 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 latter. 86


In England a publisher, to escape criminal punishment,
has consented to destroy his stock of Rabelais and Boccaccio. 87
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 Boccaccio. On the strength of
this a postofnce inspector affirms "this book has been declared

M Lee, Immodesty in Art, 13.

^People vs. Mueller, 96 N. Y. 408, 48 Am. Rep. 635. U. S. vs. Smith, 45
Fed. Rep. 477.

T See Buchanan's On Descending Into Hell, p. 39.



non-mailable." 88 The United States 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 unexpurgated edition of Decameron, nor was the
question of its obscenity even submitted to the jury. The
judge evidently did not consider it obscene. 89

In the state courts of New York, a brief to the contrary
having been submitted by Mr. Comstock, it was decided that
Rabelais and Boccaccio were not obscene. 90

After the foregoing decision, the United States district
Court of the Western District of the Southern District of
Ohio fined one Stiefel $5 for sending Decameron by express
from Cincinnati to Crawfordsville, Ind. 91 -f#, MJL$S/JI#

Which of these conflicting views is correct, and where
does the statute fix the standard for deciding whether Boccac-
cio is "obscene" or not?


In a former chapter, I called attention to the case of Mrs.
Carrie Nation, wherein a U. S. Commissioner had discharged
her, deciding that 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 League 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 book
"Human Sexuality" was not "obscene." He was indicted and
is awaiting trial. What kind of whim will determine his

"See Frankenstein's A Victim of Comstockism, pp. 16-17.

"See Record in U. S. vs. Shepard, in U. S. Circuit Court of Appeal*.
154, 165.

"Matter of Worthington Co., SO N. Y. Sup. 361, 62d St. Rep. 116, 2J L.
R. A. 110.



In one of the larger cities of Massachusetts an influential
business man was arrested 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
to do him 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 its
sale has been a frequent contributor to the N. Y. Society for
the Suppression of Vice. Mr. Comstock never thought the
book "obscene," and like Mr. Colgate (elsewhere referred to),
the 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 greatly.
While deeming that undesirable, I cannot refrain from calling
attention to the case of People vs Eastman, (188 N. Y. 478)
when we 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.


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-
sisted 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 the
matter was not "obscene," his mental 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 guilty, on the ground of insanity; thus by necessary im-
plication deciding the Bible to be criminally obscene. Upon
a hearing on a writ of habeas 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. 92

"'For partial statement see Medico-Legal Journal, December,1906, p. 490;
also Train's published autobiography, My Life in Many States, p. 828.



In his autobiography, Train informs us that a Cleveland
paper was seized and destroyed for republishing the same
Bible quotations which had caused his own arrest. Here, then,
was a direct adjudication that parts of the Bible are criminally
indecent, and therefore unmailable. 93

In 1895 John B. Wise, of Clay Center, Kansas, was
arrested 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 meaning
of the statute. 94

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

Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 30 of 43)