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is esteemed of importance because, being founded on their
feelings, they confound the moral valuation of circulating
a disagreeable idea, with the moral sentimentalism associated
with the accused presentation. This makes it desirable to
make a little inquiry into the relation of modesty and sensual-
ism. The 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
Whate'er the Grecian Venus was.
From Eve's first-fig-leaf to brocade,

"'Fables for the Female Sex (3rd Edition, 1766) pp. 66-65.
"'Studies in the Psychology of Sex (Modesty), pp. 1-27.

320



VARIETIES OF OFFICIAL MODESTY.

All dress was meant for fancy's aid,
Which evermore delighted dwells
On what the bashful nymph conceals.
Whenever Celia struts in man's attire,
She shows too much to raise desire;
But from hoop's bewitching round,
Her very shoe has power to wound.
The roving eye, the bosom bare,
The forward laugh, the wanton air,
May catch the fop, for gudgeons strike
At the bare hook, and bait, alike ;
While salmon play regardless by,

Till art, like nature, forms the fly.
*******

To wiser heads attention lend,

And learn this 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 Melancholy, 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 are of the opinion that to see a women naked
is able of itself to alter his affection, and it is worthy of con-
sideration, saith Montaigne, the Frenchman, in his essays, that
the 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 careire,
When once it saw those parts should not appear.""
If, as 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-

U6 Fables for the Female Sex (3rd Edition, 1766), pp. 66-65.
"'Burton's Anatomy of Melancholy, Vol. II, page 371.

321



OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

portunity given him to instruct the jury. Thus the jury is in-
formed how contemptible they will be in the eyes of these ex-
emplars of "virtue" should they disagree with them as to the
"obscenity" of the book under investigation. Neither the 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 should he find the accused publication to be unobscene.
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 the 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. Felkin remarks concerning Central Africa,
that he nowhere met with more indecency than in Ugabda,
where the death penalty is inflicted on an adult found naked
in the streets. To this we may add the 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 the elect, or spiritualists, have most licentious
and sacred debaucheries, the women yet wear veils and their
faces are unseen except by immediate relatives. 118

"There is a great truth underlying the fact which the
Governor of Uganda has just proclaimed, namely, that the
more clothes the Bakedi 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." 119

11T Burton's Anatomy of Melancholy, Vol. II, page 371.
" Woman," by Talmey, pases 10, 11.

Mall Gazette, now requoted from Truth Seeker, May 8, 1909.

322



VARIETIES OF OFFICIAL MODESTY.

These testimonies demonstrate quite conclusively that
there is no necessary connection between "immodesty" and
sexual orthodoxy, and that with those in whom a healthy-
minded naturalness has not been tainted by a prurient prudery,
the absence of clothing does not usually operate as a pro-
vocative to lust, and thus we see that the passions are best
stimulated by concealment and mystery.

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 sex-sensitiveness, that they so intensely
desire to conceal. This sexual hyperestheticism is more than
the foundation of modesty and the determinant of the quality
and quantity of its resultant shame. This same sensitiveness
to suggestion is also the foundation of psycho-sexual impo-
tency. Thus it comes that 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 against the
natural physiological consequences of an otherwise appro-
priate objective sex-stimulus.

When this modesty, of diseased nerves, and a consequent
abnormal lasciviousness, have produced psychic immunity to
a 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 bodily 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 hyperesthetic, and probably a
majority of them are indifferent to or impotent as regards
normal indulgence. The prude who, through fear, has be-
come psychically unresponsive to what otherwise would be an
effective sex-stimulus, has not been deprived of even the least
quantity of the subjective conditions of excessive lascivious-
ness, either psychological or physiological. Since a psychic
inhibition against some particular manifestation of the sex-



323



OBSCENE LITERATURE AND CONSTITUTIONAL 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 is almost certain to promote and
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 fact that 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 (lewdness) 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 feel that by our analysis we have uncovered the
very thing in themselves which they are most anxious to con-
ceal. As further evidence of the correctness of our theory it
will, no doubt, appear that those who are most 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 are 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 inno-
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 sue-

324



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 has become inextricably confused with ideas of prurience
or impropriety. Matters pertaining to the generative func-
tions and to the sexes, which were formerly discussed with
perfect familiarity and directness, with no thought of impro-
priety and immodesty, as every reader of the 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
have succeeded in creating a false modesty which hinders free
discussion.""

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 that unnatural
shame for healthyminded 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, phylogenetically, human
modesty, as we now understand it, had its principal sources in
sexual hyperestheticism and a perverted sex-impulse, 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 is 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.

" Woman," by Talmey, pages 10, 11.



325



CHAPTER XVII.

i

VARIETIES OF CRITERIA OF GUILT.

Our study of psychology, ethnography, 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 furnish either uniform, or any, criteria of
guilt, such as should enable every man of ordinary under-
standing, under all circumstances, to know with certainty
whether or not his proposed conduct is penalized, and without
which certainty in the criteria of guilt 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 the
necessary certainty in the tests of obscenity. That this is not
accomplished is the opinion of hundreds who have been con-
victed for a mere difference of opinion with the censors, as
it seemed to them, and some of these have left valuable
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 we 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." 1

iComstock's Frauds Exposed, page 446.

326



VARIETIES OF CRITERIA OF GUILT.

The annual meeting of the National Purity Federation,
Oct. 11, 1906, unanimously adopted a resolution praying for
relief from the evils of this uncertainty. From the 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 means 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. 2
Similar resolutions, complaining of the uncertainty of the law
and offering definite suggestions for amendment, were adopted
by the joint session of the medical and surgical sections of
the State Medical Society of Illinois. 3

The foregoing statements are entitled to great weight
because in each case they come from persons who expressly
approve the general purposes of the laws 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, 4 while revising the penal code of Louisi-
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 general 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." 5

A noted English law-writer makes this comment : "It is
impossible to define what is an immoral or obscene publication.
To say that it necessarily tends to corrupt or deprave the
morals of readers supplies no definite test." 6

2The Light, Nov., 1906.

^Medical Record, Oct. 12th, 1907, p. 599-600.

4 See Columbia Law Review, p. 32, Jan., 1902.

5 Life of Edward Livingston, by Chas. Haven Hunt, p. 289.

6Paterson, Liberty of Press and Speech, etc., p. 70.

327



OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

There is also judicial admission of the uncertainty and
consequent arbitrariness of the statute. Thus it is said, "the
law is arbitrary." 7 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 depend very much on the opinion,
which the jury might form of that degree in such a publica-
tion as this." 8a One American court speaks of "the elasticity
of the language used by Congress, necessarily [?] so general
in its description of the offense." 9 Another court admits
that, "Whether act or language is obscene depends upon
circumstances," 10 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 various that these questions ought to be
submitted to a jury," 11 and so, instead of being a matter of
statute law, every case in effect "is one which addresses itself
largely to your [the jurors'] good judgment, common sense,
and knowledge of human nature and the weakness of human
nature." 12 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," 15 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," 118 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," 17 nor by the statutes or even the judge-made tests.

7U. S. vs. Harman, 45 Fed. Rep. 421.
SQueen vs. Hicklin, L. R. 3, Q. B. 378.

a In this, as in most other quotations, the italics are mine. T. S.
U. S. vs. Davis, 38 Fed. Rep. 327.
10U. S. vs. Smith, 45 Fed. Rep. 477.
"U. S. vs. Clarke, 33 Fed. Rep. 502.
12U. S. vs. Clarke, 38 Fed. Rep. 734.

^Instruction approved in Dunlop vs. U. S. 165 U. S. 500.
"In re Coleman, 131 Fed. Rep. 152.
U. S. vs. Harman, 38 Fed. Rep. 829.

iU. S. vs. Sherman, unofficially reported by Mr. Comstock in "Morals,
not Art or Literature," p. 33.

"Commonwealth vs. Landis, 8 Phila. 453.

3*8



VARIETIES OF CRITERIA OF GUILT.

Even the judicial legislation has not improved matters.
The words "obscene, indecent," etc., "can not be said to have
acquired any technical significance/' 11 The same comes from
another court: "It would therefore appear that the term
'public indecency' has no fixed legal meaning, is vague and
indefinite." 19 And so after all the judicial legislation in aid
of the statute, "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." 2(

However, it may be suggested that all this admitted
uncertainty is due to uncertainty of evidence and not to the
uncertainty of the 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 statute is to produce
contradictory results when applied by different courts to the
same subject-matter. It remains to show by a comparison of
the judicial legislation 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 are 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 sentimentalism
and feeling-convictions. Even when taken separately, the
judicial tests of obscenity are as uncertain as the statute,
upon which they engraft unconstitutional amendments on the
pretense of interpretation. Taken collectively, they leave us
in a worse muddle than could have been imagined from a
mere reading of the statute.

FACT OR LAW?

"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." 21

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." 22

18U. S. vs. Harman, 45 Fed. Rep. 417.

iMcJunkins vs. State, 10 Ind. 145. See also Redd vs. State (Ga.) 67 So.
East. Rep. 709.

20Timmons vs. U. S. 85 Fed. Rep. 205. C. C. A.

2iMcNair vs. People, 89, HI, 441; U. S. vs. Bennett, Fed. Case, 14571,
p. 1099; in U. S. vs. Shepard, 160 Fed. Rep. 584 (Utah) Trial 9 court directed
verdict of guilty, see record in C. C. A. Also in U. S. vs. Heywood, trial court
directed a verdict of guilty.

22People vs. Muller, 32 Hun. 211.

329



OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

"The Judge may rightfully express his opinion respecting-
the evidence and it may sometimes be his duty to do so, yet
not so as to withdraw it from the consideration and decision
of the jury." 23

"Ordinarily it is a question for the determination 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 obscenity would be set
aside as against evidence and reason/' 24

"The ultimate solution of that rests with 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." 25

"Rather is the test what is the judgment of the aggregate
sense of the community reached by it." 26 "It is a question
for the jury to pass upon under proper instructions." 27

IS THE STATUTE TAUTOLOGICAL?

"Obviously the words 'obscene' and 'of an indecent char-
acter' are treated in this opinion [165 U. S. 311] as con-
vertible expressions, equivalent in meaning." 28

"The word 'lascivious' is very nearly synonymous with the
word 'lewd'; so nearly so that I will not undertake to draw
a distinction between the two words." 29

"The words 'obscene', 'lewd', and 'lascivious' as employed
in the statute are not used interchangeably/' 30

MAY COMPARISONS BE MADE?

"You [jurors] are not sent here to try other books nor
to compare this book 'with other books, and you heard the
court rule out all other books." 3

"So far as your experience goes, the 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 to resort to that experience in de-
termining what will be the probable effect of the publication

23Commonwealth vs. Landis, 8, Phila. 453.

24U. S. vs. Smith, 45 Fed. Rep. 418.

25U. S. vs. Clarke, 38 Fed. Rep. 50; U. S. vs. Harman, 45 Fed. Rep. 418.

26U. S. vs. Harman, 45 Fed. Rep. 417.

27U. S. vs. Moore, 129. F. R. 160.

28Timmons vs. U. S. 85 Fed. Rep. 205. (C. C. A.)

29U. S. vs. Clarke, 38 Fed. Rep. 733.

SOU. S. vs. Smith, 45 Fed. Rep. 477; U. S. vs. Bennett, Fed. Case No



Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 32 of 43)