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14571, 16 Blatch. 338; U. S. vs. Britton, 17 Fed. Rep. 733; U. S. vs. Males,
51 Fed. Rep. 42.

31U. S. vs. Bennett, Fed. Case 14571, p. 1105.

330



VARIETIES OF CRITERIA OF GUILT.

involved in this case, provided you think such comparison, or
reference to such experience, will be of service and will aid
you in reaching a correct conclusion." 32

DOES THE DEPOSIT COMPLETE THE OFFENSE?

"The act of depositing [obscene matter in the mails] must
be held to constitute the entire offense." 33

"The statute does not make criminal the mere depositing in
a post-office of obscene matter, even though it be 'knowingly'
deposited." 34

CONTRADICTION AS TO "KNOWINGLY^ IN INDICTMENT.

"It [the indictment] is defective because it does not allege
that the defendant knew that the writings, papers, etc., which
she is charged with having deposited in the mail, for mailing
and delivery, were of an obscene, lewd, and lascivious charac-



"The indictment alleges that the defendant knowingly
deposited this non-mailable picture * * * * Believing that the
defendant was fully informed of the matter charged against
him, notwithstanding the cases cited to me of Com. vs. Boyn-
ton, 12 Cush. 499; U. S. vs. Slenker, 32 Fed. Rep. 691, I am
constrained to hold that this indictment is sufficient." 36

EVIDENCE ALIUNDE.

"If the terms employed do not in and of themselves
reasonably convey the suggestion of obscenity, lewdness, or
lasciviousness, they cannot be eked out by evidence aliunde." 87
Yet in the case of U. S. vs. Bennett et al, of the N. Y.
Herald, such evidence was the sole reliance of the prosecution ;
Advertisements leading to immoral resorts were basis of the
charge. I believe the same was true in the case of U. S. vs.
Dunlop.

AS TO OBSCENITY ON SUSPICION.

Indictment on letter from a married man to an unmarried
woman inviting her to visit a neighboring city with him
clandestinely, the purpose of the visit not being disclosed in
the letter, and it w'as free from immoral language. "The court

32U. S. vs. Clarke, 38 Fed. Rep. 735.

33U. S. vs. Commerford, 25 Fed. Rep. 903.

34U. S. vs. Brazeau, 78 Fed. Rep. 465.

35U. S. vs. Slenker, 32 Fed. Rep. 695; in^U. S. vs. Macfadden, 165 Fed.
Rep. 51 (N. J.). First indictment was dismissed on this ground: Com. vs. Boyn-
ton, 12 Cush. 499.

U. S. vs. Clark, 37 Fed Rep. 107-108; Shephard vs. U. S., 160 Fed.
Rep. 584.

37U. S. vs. Moore, 129 Fed. Rep. 160.

331



OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

cannot see how any other construction can be put upon them
than that they are within the meaning of the statute. * * * *
It is difficult to conceive what can be more shocking to the
modesty of a chaste and pure-minded woman than the proposi-
tion contained in these letters." 31

In a similar case, a "letter free from the immoral language
inhibited by the statute, written apparently for the purpose of
seduction or assignation," produced the following opinion:
"For a letter to be obnoxious to this statute its language must
be obscene, lewd, or lascivious and it must be of indecent
character. The statute does not declare that the letter must
be written for an obscene or indecent purpose, but that the
letter itself, in its language, shall be of indecent character.
When a law denounces a letter containing obscene language,
and does not denounce a letter decent in terms but written
for an indecent purpose, an indictment founded only upon
the obscene purpose cannot be maintained." 31

"The language, 'go to bed with me/ is itself neither obscene
nor vulgar, and has never before been so held. * * * * Taken
in connection with the surrounding circumstances in this case,
the conclusion is very natural that the defendant intended
this as a proposition to violate chastity. * * * * As there is
nothing obscene or vulgar in the language itself, though it
makes a proposition that ought, in my opinion, to be criminal,
I do not feel at liberty to embrace it by construction." 40

WHOSE OPINION, THE JUROR'S, THE PUBLIC'S,
OR THE PURIST'S?

"Sitting, as the court does in this case, in the stead of
the jury, it may not apply to the facts its own method of
analysis or process of reasoning as a judge, but should try to
reflect in the findings the common experience, observation, and
judgment of the jury of average intelligence." 41

Here, then, was a judge with much more intelligence than
an average jury, who, by applying his "own method of
analysis and reasoning," might conclude that a book was not
"obscene," but, believing that a jury of lesser intelligence
would conclude otherwise, he decided it would be his duty to
find the defendant guilty. The test of obscenity was the

38U. S. vs. Martin, 50 Fed. Rep. 921.
39U. S. vs. Lamkin, 73 Fed. Rep. 463.

40Dillard, vs. State, 41 Ga. 279. See concurring opinion. See also, Edwards
vs. State, 85 S. W. Rep. 797. (Tex.)

U. S. vs. Harman, 45 Fed. Rep. 418.

332



VARIETIES OF CRITERIA OF GUILT.

"judgment of the jury of average intelligence" and the jury's-
"own opinion."* 2

"A book to be obscene must appear so to the mind of the
pure not to the impure merely."**

IMMORAL INFLUENCE ON ADDRESSEE DECISIVE.

"The inquiry as to the tendency of the letter must be
narrowed to the liability to corrupt the addressee." 44

"Even an obscene book, or one that in view of the subject
matter would ordinarily be classed as such, may be sent
through the mails or be published to certain persons for
certain purposes. For example, a treatise on venereal diseases
might be sent through the mail or delivered to a student
or practitioner of medicine, and perhaps to other persons for
certain purposes." 45

"I cannot doubt that proper and necessary communication
between physicians and patients touching any disease may
be properly deposited in the mail. The statute is not to
receive a strained construction." 46



"Without regard to the character of person to whom they
are directed." 47

"Have sexual intercourse with me" is held obscene even
though "addressed to a prostitute." 48 Even her morals are
guarded against impure suggestion by this tender and maternal
statute.

"IMMORAL" INFLUENCE ON ORDINARY READER DECISIVE.

"It must be calculated with the ordinary reader to deprave
him." 49

"Tendency to vitiate the public taste and to debauch the
public morals." 50



"The matter must be regarded as obscene if it should have
a tendency to suggest impure and libidinous thoughts in the

42Dunlap vs. U. S. 165, U. S. 488.

Com. -vs. Abbie Dyke Lee. Unofficially reported in Heywood's Defense, p. 29.
U. S. vs. Wroblensky, 118 Fed. Rep. 496; U. S. vs. Moore, 129 Fed. Rep..
163; Edwards vs. State, 85 So. W. Rep. 797.
U. S. vs. Clarke, 38 Fed. Rep. 502.
*6U. S. vs. Smith, 45 Fed. Rep. 478.
47U. S. vs. Cheeseman, 19 Fed. Rep. 498.
*8Kelly vs. State, 55 So. E. Rep. 482.
49 Ruling approved in Dunlap -vs. U. S. 165 U. S. 488.
soMontross vs. State, 72 Ga. 266.

333



OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

minds of those open to the influence of such thought. * * * *
Whether the tendency of the matter charged as obscenity is
to deprave and corrupt those whose minds are open to such
immoral influence, and into whose hands a publication of this
sort may fall." 51

FITNESS FOR "MORAL" INSTRUCTION TO CHILDREN IS DECISIVE.

"Such as should go into their [the jury's] families and
be handed to their [the jurors'] sons and daughters, and
placed in boarding schools for the beneficial information of
the young and others, then it was [the jury's] duty to acquit
the defendant." 52

"UNBECOMING" LITERATURE.

The mere quality of being "unbecoming" is criterion of
"obscenity." 53

On the contrary, it is held that "unbecoming or even
profane" language is not within the inhibition of the statute. 5 *

CONFLICTS AS TO "TASTE" AND "SHOCK" AS TESTS.

The general notion is that protection to "morality" was
the only thing sought. But, according to some, the esthetic
sense was also to be protected. However, here as everywhere
else there is conflict of authority.

"Offensive to delicacy" is held sufficient." 55

"Shocks the ordinary and common sense of men as an
indecency." 56

"Tendency to vitiate the public taste" is a material element
according to another court. 57

"If it is such as to offend the sense of delicacy."

"An obscene writing was defined as one offensive to
decency, indelicate, impure, and an indecent one, as one un-
becoming, immodest, unfit to be seen." 59

"That which shocks the ordinary and common sense of
men as an indecency is the test," AND YET ! !

"The court must * * * * not allow a hypercritical judg-
ment to take advantage of the elasticity of the language used

61U. S. vs. Bennett, Fed. Case, 14571, p. 1104; U. S. vs. Debout, 28 Fed.
Rep. 523; U. S. vs. Slenker, 32 Fed. Rep. 693.

62Com. vs. Landis, 8 Phila. R. 454; U. S. vs. Heywood, Off. Sten. Rep.
Morals, not Art or Lit. 22; U. S. vs. Silas Hicks, Off. Sten. Rep. Morals, not Art
or Literature; U. S. vs. Cheeseman, 19 Fed. Rep. 498.

53U. S. vs. Williams, 3 Fed. Rep. 485.

"U. S. vs. Smith, 11 Fed. Rep. 664.

B6U. S. vs. Britton, 17 Fed. Rep. 733.

66U. S. vs. Davis, 38 Fed. Rep. 328.

STMontross vs. State, 72 Ga. 266.

B8 U. S. vs. Sherman, (from official Stenog. notes, see Comstock's Morals,
mot Art or Literature, p. 33.)

59U. S. vs. Williams, 3 Fed. Rep. 485.

334



VARIETIES OF CRITERIA OF GUILT.

by Congress, * * * * by bringing within the act words and
thoughts that are only rude, impolite, or not in good taste,
according to the standard of decency prescribed by the purists
in language and thought." 61

ARE WORDS OBSCENE PER SE ?

"There are in the language words known as words obscene
in themselves." 61

"There is not a single word in the language, however
coarse, low, or vulgar, that may not be and is not often
used to convey proper and decent ideas, and it is a mawkish
and realy an indelicate and immodest sensitiveness that blushes
at a word which may be used obscenely, but which the occasion
and the context show not to be so used." 62

MUST THE LANGUAGE BE "OBSCENE" ?

"Inasmuch as every letter is written, and is a composition
of words, it necessarily follows that for a letter to be ob-
noxious to this statute its language must be obscene, lewd,
or lascivious, and it must be of an indecent character." 61

"The language or communication may be free from the
condemnation of the statute in one instance while it would
clearly fall within it when addressed to other persons." 61 But
who are these authorized obscenists?

"It is of no consequence that the language employed may
be pure." 65

"The poison of the asp may lie beneath the honeyed tongue
just as a beautiful flower may contain a deadly odor. It is
the effect of the language employed * * * * which is struck
at by the statute." 66

WHEREIN MUST THE OBSCENITY BE?

Here then it is held that the words sent through the mail
must be obscene. Other cases say that the words need not
be obscene; it is enough, though expressed in choicest words,
if the idea is obscene. Again it is said that neither the
words nor the idea actually expressed need be obscene; it
being enough if these convey only to the most prurient

60U. S. vs. Davis, 38 Fed. Rep. 327; U. S. vs. Smith, 11 Fed. Rep. 664;
U. S. vs. Wightman, 29 Fed. Rep. 636.

eiU. S. vs. Bennett, Fed. Case, 14571, p. 1102; U. S. vs. Harman, 38
Fed. Rep. 829.

62Dillard vs. State, 41, Ga. 280.

63U. S. vs. Lamkin, 73 Fed. Rep. 463; Dillard vs. State, 41 Ga. 279.

64U. S. vs. Wroblensky, 118 Fed. Rep. 496.

65U. S. vs. Smith, 45 Fed. Rep. 478; U. S. vs. Males, 51 Fed. Rep. 421;
CT. S. vs. Hanover, 17 Fed. Rep. 444.

eeu. S. vs. Moore, 129 Fed. Rep. 160.

335



OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

imagination a mere suggestion of obscenity. And again it is
decided that it can not be that every suggestion of lascivious
ideas is prohibited.

"It can not be that every writing or publication which in
any way suggests a thought of the relation of the sexes is
obscene, lewd, and lascivious. That would place upon the
court a vast burden of separating the little matter that is
mailable from the grand mass and majority of literature which
would be non-mailable." 67

INTENT IS MATERIAL.

"I have but little patience with those self -constituted
guardians and censors of the public morals who are always
on the alert to find something to be shocked at, who explore
the wide domain of art, science, and literature to find some-
thing immodest, and who attribute impurity where none is
intended. * * * * The question of obscenity in any particular
article must depend largely on the place, manner, and object
of its publication.'' 68

"The question of the violation of the statute rests upon
the import and presumed motive." 69

"Words get their point and meaning almost entirely from
the time, place, circumstances and intent with which they are
used. * * * * The intention of the defendant who used the
language and the purpose for which he used it * * * *
constitutes the offense." 70

"We think it would also be a proper test of obscenity in
a painting or statue whether the motive of the painting or
statue, so to speak, as indicated by it, is pure or impure." 71

INTENT IS IMMATERIAL.

"A mistaken view of the defendant as to the character
and tendency of the book, if it was in itself obscene and unfit
for publication, would not excuse his violation of the law." 72

"The statute does not declare that the letter must be writ-
ten for an indecent or obscene purpose/' 78

"The criminal character of the publication is not affected

67U. S. vs. Larkin & Adams (Wash. March 11, 1902) from Official Stenog.
Rep.

8U. S. vs. Harman, 38 Fed. Rep. 828-9.

eU. S. vs. Wroblensky, 118 Fed. Rep. 496; Smith & Crocker, vs. State-
24 Tex. Cr. App. 1.

70Dillard vs. State, 41 Ga. 280-281. The second sentence is from a con-
curring opinion.

7iPeople vs. Muller, 96 N. Y. 410.

"Com. vs. Landis, 8 Phila. 455.

73U. S. vs. Lamkin, 73 Fed. Rep. 463.

336



VARIETIES OF CRITERIA OF GUILT.

or qualified by there being some ulterior object in view of a
different and honest character." 74

"I have stated the object with which the book is written
is not material, nor is the motive which leads the defendant
to mail the book material. * * * * His motive may have been
ever so pure; if the book he mailed is obscene, he is guilty " n

"Where the writings * * * * are of an obscene, lewd, or
lascivious character, the fact that they were sent in the real
or supposed interest of science, philosophy, or morality, is
immaterial." (syllabus) 76

UNCERTAINTY AS TO MEDICAL BOOKS.

"I am not prepared to say and it is not necessary now to
decide whether these medical books could be sent through the
mails without violating the statute." 77

"Nor does the truth or falsity of the publication make
any part of the offense." 78

If, as many cases hold, truth and good motives are im-
material, and the character of the person to whom the matter
is sent is also immaterial, then a book which would be obscene
if handed to an adolescent or pubescent child must also be
so if mailed to a physician. However, sometimes the judicial
dictum repudiates this logical consequence.

"I have no doubt that under the statute, under which this
indictment is found, standard medical works * * * * may be
sent through the mails to persons who buy or call for them
for the purpose of seeking information." 79

However, according to another authority they may not
be offered to all with a view to stimulating the desire for
information.

"Even scientific and medical publications containing illus-
trations exhibiting the human form, if wantonly exposed in
the open markets, with a wanton and wicked desire to create
a demand for them and not to promote the good of society
by placing them in proper hands for useful purposes, would,
if tending to excite lewd desires, be held to be obscene

74Regina vs. Hicklin, L. R. 3, Q. B. 360; Steele vs. Brannan, L. R. 7,
C. P. 261 .

"U. S. vs. Bennett. Fed. Rep., Case 14571, p. 1102; U. S. vs. Clarke,
38 Fed. Rep. 502; U. S. vs. Debout, 28 Fed. Rep. 524.

76Charge quoted in U. S. vs. Slenker, 32 Fed. Rep. 691; State vs. Brown,
27 Vt. 619.

77U. S. vs. Cheesrman, 19 Fed. Rep. 498.

"U. S. vs. Debout, 28 Fed. Rep. 525; Com. vs. Landis, 8 Phila. 453; U. S.
vs. Bennett, Fed. Case 14571.

"U. S. vs. Clarke, 38 Fed. Rep. 733; U. S. vs. Smith, 45 Fed. Rep. 478.
337



OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

libels." * * * * That it is 'true and scientifically correct' is
immaterial." 80

"The object no doubt is to display the nature of a par-
ticular disease and the effect of a particular medicine, but
it is not commendable, even to medical men, to display such
representations in public." 8

Mr. Comstock tells of one Sherman who was three times
arrested for circulating a book on hernia. The first two trials
resulted in acquittal, because the jury did not consider it
obscene. On the third trial the court instructed the jury that
they must consider the verdict of other juries as immaterial,
and then invented some new test of obscenity which resulted
in conviction. 82

JUDICIAL TESTS OF "OBSCENITY^ APPLIED.

Nowhere else is the judicial "intelligence" so utterly devoid
of real enlightenment as when dealing with these problems
of abnormal psychology and sex-psychology. Were it not so
pathetic, we could find great humor in the judicial hysteria
over "obscene" literature. Unconscious of the fact that the
obscenity is the contribution of the reading mind, 84 our "most
learned judges" when trying to objectivize the judicial moral-
sentimentalism, by judicial legislation creating tests of ob-
scenity, make standards which are not only very contradictory
but also very ludicrous when examined from the view-point
of the scientist. It seems as though judges think of them-
selves as possessed of a capacity for acquiring a knowledge
of science by some mysterious occult means, which make
it unnecessary for them to investigate before expressing a
judicial determination involving scientific problems.

Probably the most frequently used "tests" of obscenity,
etc., are the following: "Where the tendency of the matter
is to deprave and corrupt the morals of those whose minds
are open to such influences and into whose hands a publica-
tion of this sort may fall * * * * the statute uses the word
'lewd/ which means having a tendency to excite lustful
thoughts." 85 I intend to apply the foregoing "tests of ob-

80Com. vs. Landis, 8 Phila. 453; U. S. vs. Burton, 142 Fed. Rep. 58; U. S.
vs. Cheeseman, 19 Fed. Rep. 498.

SiReg. vs. Grey, 4 Foster and Finlanson, 79.
82U. S. vs. Sherman, Morals, not Literature or Art, p. 33.
84Ellis' Studies in the Psychology of Sex, Vol. VI. p. 54; Varieties of
Official Modesty, Albany Law Journal, Aug. 1908; Legal Obscenity and Sexual
Psychology, Alienist and Neurologist, Aug. 1908; What is Criminally Obscene,
Albany Law Journal, July 1906.

85U. S. vs. Blnnett, Fed. Case, No. 14571, Vol. 24, p. 1102.

338




VARIETIES OF CRITERIA OF GUILT.

scenity" to a few related facts, well known to the psychiatrist,
in order that their connection, and the crass judicial ignorance
concerning the import of these "tests," may become more
generally known.

Krafft-Ebing, in quoting the confession of a masochist,
gives this as the language of the afflicted one: "That one man
could possess, sell, or whip another caused me intense excite-
ment ; and in reading 'Uncle Tom's Cabin' (which I read
about the beginning of puberty), I had erections. Particularly
exciting to me was the thought of a man's being hitched up
before a wagon in which another man sat with a whip, driving
and whipping him." 86

Here then is a case where conviction would have been
dependent, not upon the jurors' mere a priori speculation,
but upon the admitted fact that the "tendency" of "Uncle
Tom's Cabin," according to the judicial ignorance, is to
"deprave and corrupt the morals of those whose minds are
open to such influences" and that it has a demonstrated
"tendency to excite lustful thoughts." Thus, by the generally
accepted judicial tests of obscenity, our "most learned" judges
condemn "Uncle Tom's Cabin" as being an "obscene" and a
"lewd" book, and it is a crime to sell it, or to send it by mail
or express, if the "law" (?) is uniformly enforced.

One need but know the facts of sexual fetichism and apply
the judicial "test" of obscenity, to an apron, feathers any
item of female attire, such as the shoe, furs, handkerchiefs,
gloves, silks, velvets, or even a woman's hand, or hair, or
perfumes, and thus demonstrate that in themselves each of
these is an object of "public indecency" and "obscenity" be-
cause "to those whose minds are open to such influences," to
wit, certain sexual fetichists, it has a demonstrated "tendency
to excite lustful thoughts."

Dr. Havelock Ellis recently wrote this: "The case has
lately been reported of a young schoolmaster who always felt
tempted to commit a criminal assault by the sight of a boy
in knickerbockers; that for him was an 'obscene' sight must
we, therefore, conclude that all boys in knickerbockers should
be forcibly suppressed as 'obscene' ? 86 a Most assuredly ! If the
judicial tests of obscenity and lewdness are to be applied, it
becomes a public indecency, in many States criminally punish-
able, to permit a boy in knickerbockers to be seen in public,

sepsychopathia Sexualis, Chaddock translation, p. 105.
86 Free Press Anthology, p. 224.

339



OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

and a picture of such a boy would be an "obscene and indecent^
a lewd and lascivious" print, within the meaning of the postal
law, because it has a demonstrated "tendency to deprave and
corrupt the morals of those whose minds are open to such
influences"; because in such persons the picture of a boy in
knickerbockers has a demonstrated "tendency to excite lustful
thoughts."

The literature of sadism also furnishes illustrations of the
crass ignorance involved in our judicial "tests of obscenity."
"There is a case of a boy who experienced sexual feeling by
viewing the picture of a battle scene," 87 hence such pictures
are "obscene and indecent, lewd and lascivious," and, there-
fore, criminal if sent by mail. Again our author writes: "A
surgeon confessed to the writer that while reading in a surgical
work a description of the puncture of a festered wound, he
found himself, to his astonishment, in a state of sexual excite-
ment." Therefore, according to the judicial "test of obscenity,"
a book on surgery is non-mailable because "obscene and in-
decent," etc., it being now a demonstrated fact that such books
have "a tendency to excite lustful thoughts," and, therefore,
by the official "logic," a tendency "to deprave and corrupt
the morals of those whose minds are open to such influences
and into whose hands a publication of this sort may fall," to
wit, certain sadists.

Maj. R. W. Shufeldt, a distinguished scientist and a retired
army-surgeon, while denouncing the absurdity of suppressing
the literature of human topographical anatomy, said: "My
studies have brought me much evidence in this matter. It is
only the sadist who quivers with sexual excitement as he or
she stands and views the whips and a few other implements
in the windows of a harness-store, and not the normal being;
it is only the hopeless sexual pervert who is driven to libidid-
inous gratification after viewing the piston copulating with
the cylinder on the side of a locomotive, and not the healthy
minded engineer in the cab. * * * * One case came to my knowl-
edge of a man who was so delicately balanced sexually that
he could not view in the window of a fish store a lot of hard-
shelled clams that the association of the name, and the outline
of the posterior aspect of the bivalve, did not suggest to his
mind the external sexual parts of woman and greatly excite
him as a consequence. All this constitutes no valid reason^

STArthur MacDonald in Medico-Legal Journal, for March, 1907.
340



VARIETIES OF CRITERIA OF GUILT.

however, for our prohibiting a whip display in a trademan's
window, do [ing] away with the locomotive, or suppress [ing]
the public sale of clams." 88

Here then we have it demonstrated according to the most
generally accepted judicial criteria of "obscenity" that "Uncle
Tom's Cabin," a book on surgery, a hard-shelled clam, a horse-
whip, a lady's shoe, glove, handkerhcief, and, in fact, every-
thing on earth is legally "obscene, indecent, lewd, or lascivi-
ous," because to some minds lewdness has been or may be



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