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suggested by it.

There was a time when the Federal Supreme Court still
subordinated the will of its judges to constitutional law. Then
it was said: "It would certainly be dangerous if the legis-
lature could set a net large enough to catch all possible of-
fenders, and leave it to the courts to step inside and say who
could be rightfully detained and who shall be set at large." 8 '
Will it adhere to that doctrine when moral sentimentalism is
involved? In many fields of jurisprudence we are the help-
less victims of the arbitrary will of a lawless judiciary. This
lawless judiciary in the matter of obscenity has legislated into
existence "criteria of guilt" so contradictory as to be meaning-
less, so inclusive as to make everyone a criminal, and, when
applied to all conceivable cases, so fantastic in their result as
to make our courts a laughing stock of the alienist. And
these courts, which unconstitutionally enact such contradictory
and extremely absurd criteria of obscenity, tell us: "These
are matters which fall within the range of ordinary in-
telligence" ; 90 and, "Everyone who uses the mails * * * * must
take notice of what in this enlightened age is meant by
decency, purity, and chastity in 1 social life and what must be
deemed 'obscene,' lewd, and lascivious." 91 BAH!!!

But, our judges are not solely to blame for being so
densely ignorant as not even to suspect the fact. The blame
lies farther back with our moralists for revenue, who, with
the stupid sentimentalists, have so nearly suppressed all liter-
ature not in harmony with the theology of sex that the aver-
age physician is quite as ignorant as our "most learned judges."
Dr. Wm. J. Robinson edits several journals for his profes-

Medical Journal, March, 1909, p. 152.
89U. S. vs. Reese 92 U. S. 219-221.
90p e0 ple vs. Muller, 96, N. Y. 410.

9iU. S. vs. Rosen 161 U. S. 42, See also, Redd vs. State, 176 Fed.
Rep. 944.



sional brethren, and makes something of a specialty of ve-
nereal subjects. Yet he, who is accounted among the leaders
in his profession, wrote this: "And so [as in the case of
beauty and ugliness] it is in regard to obscenity; the thing in
itself is not obscene; in the midst of the desert or at the
bottom of the sea, it is not obscene. But if it induces some
people, however small a number, to commit indecent, unhealthy
things, then the thing is indecent, and no amount of sophistry
can do away with the fact." 92

No! the judges are not the only ones whose minds are
"uncorrupted by learning" on sexual psychology, and they
are not to be blamed for their ignorance, only for their un-
willingness to be enlightened. But what shall we say of the
moralists for revenue and the quack-moralists in the medical


It has been demonstrated that, whether viewed as a prob-
lem of abstract psychology, of sexual psychology, abnormal
psychology, ethnography, juridicial history, or considered in
the light of the mutual distructiveness of the judicially cre-
ated criteria of guilt, or their all inclusiveness and the
grotesqueness resulting from their general application, in
every aspect we find absolute demonstration of the correctness
of the occasional judicial admission that the statutes under
consideration do not prescribe the criteria of guilt by which
judge or jury determines that the law has been violated.

It will next be exhaustively shown that such certainty r in
the criteria of guilt is essential to the validity of a penal
statute. The conclusion contended for is well stated in a
recent case where it is said: "A crime can be created only by a
public act, and the language of the act must be sufficient to com-
pletely declare and define the crime and affix the punish-
ment. * * * * The discretion of fixing what facts import
criminality is exclusively that of the lawmaker as distinguished
from the executive/' 93 or court. It follows from the co-
ordination of these propositions that all of these laws are
nullities, because "Where the law is uncertain there is no law/*
and, consequently, no "due process of law."

92 Altruria, 1907, p. 2. Italics are mine. T. S.

3U. S. vs. Louisville and N. Ry. Co. 176 Fed. Rep. 944.




The Scientific Aspect of "Law." 1

In all the annals of the past, one of the most conspicuous
features in the struggle for liberty has been the fight against
constructive crimes, which includes that against punishment
for imaginary or psychologic injuries. The condition of En-
gland, before the days of the revolution, is thus described by
Edward Livingston, Secretary of State under President
Jackson, and reputed to be "the greatest lawyer of his time,"
in his official report to the Louisiana Legislature.

"The statute gave the texts, and the tribunals wrote the
commentary in letters of blood, and extended its penalties by
the creation of constructive offenses. The vague and some-
times unintelligible language employed in the penal statutes
gave a seeming color of necessity to this assumption of power,
and the English nation have submitted to the legislation of its
courts, and seen their fellow-subjects hanged for constructive
treason, and roasted alive for constructive felonies, quartered
for constructive heresies, with a patience that would be aston-
ishing, even if their written law had sanctioned the butchery."

It appears, historically, that those baneful constructive
crimes developed from several specific causes. A union of
church and state resulted in punishing the mere constructive
injury of heretical speech ; the witchcraft superstition resulted
in punishing the mere constructive cause of material injuries ;
the abridgment of the freedom of speech and of the press
also punished psychologic crimes based upon mere constructive
injuries ; these, with the evils of judicial legislation in defining
the criteria of guilt, were all of the sources for those evils

*By special permission revised and republished from the American Law
Review, for June, 1908.



which are so often denounced under the name of constructive
offenses. Our ancestors saw the evils and their practical con-
crete origins, but apparently did not concern themselves with
the generalization of the ultimate tests by which to determine
the essence of all constructive offenses. Notwithstanding this,
they very effectively barred the door against any recurrence of
such evils, if we will but construe our constitution in the light
of a truly scientific conception of the law, such as will be
formulated hereinafter.

To obviate the recurrence to punishment of mere psycho-
logic or constructive injuries, our forefathers prohibited the
union of church and state, and the abridgment of freedom of
speech and of the press. To the same end, and to preclude
judicial legislation and its arbitrary tyrannies, they separated
the functions of the legislative and judicial branches of our
government, and then, as including all these and more be-
sides, they made the more general and comprehensive guar-
antee that no man should be deprived of life, liberty or prop-
erty without due process of law.

In spite of all these safeguards, and innumerable judicial
denunciations of the punishment of constructive offenses, it
seems to me that all about me I discover such penalties being
inflicted, without its inducing much of a protest. In seeking
for an explanation, I have been led to the conclusion that it is
to be found in the fact that in reducing the lawyer's calling
from a profession to a business, we have put so high a pre-
mium upon his commercial acumen that we have reduced the
lawyer from a scientist of the law to a business executive.
The result is that not one lawyer in ten thousand has a truly
scientific conception of the law, or of its essential nature. As
best I can I intend to point out the nature of "law" as I
believe the few intelligent lawyers view it, and then I will
endeavor to deduce therefrom criteria for determining what
are constructive offenses, especially in their relation to "due
process of law"


It is often said, let us hope not always in sarcasm, that the
law is a science. I wonder if those who speak these words
really know what they signify. I shall undertake, I fear in
an inadequate way, to state what such words mean to me.
Men have a scientific conception of the law only when they



see legal truth as a formulated expression of the natural law
of our social organism. To conceive this as a "law" we must
understand it, not as a mere acquaintance with, or memory-
knowledge of, the verbally uttered decision in this case or
that, or under these or other special states of fact, but we
must understand these special legal truths in all their neces-
sary relations to one another, as constituent elements in the
induction leading to the most comprehensive generalization;
and again, all must be seen according to their own necessary
logical classifications as mere special examples of the broad-
est rational generalization of legal truth, to which all concrete,
instances must be referred, and from which all specific de-
cisions must be made, by the process of deduction. It is not
enough that we discover some more or less crude analogies
between these facts and those, and thus by an empirical in-
duction make the decision in that case fit this ; on the con-
trary, the law has not reached the dignity of a science until
we see the relation of all its special cases to those general
principles which are decisive of all causes belonging to the
same general class. Let me make a quotation by way of
illustration. "During its early stages, planetary astronomy con-
sisted of nothing more than accumulated observations re-
specting the positions and motions of the sun and planets;
from which accumulated observations it came by and by to be
empirically predicted, with an approach to truth, that certain
of the heavenly bodies would have certain positions at certain
times. But the modern science of planetary astronomy con-
sists of deductions from the law of gravitation deductions
showing why the celestial bodies necessarily occupy certain
places at certain times."

To have accumulated a knowledge of the kind of judg-
ments entered in a large number of cases is not to know "law"
nor to be a scientist of the law. To make empirical induc-
tions from such accumulated knowledge may enable us to de-
cide cases with an approach to truth and justice, but the result
is not "law" in the only sense in which a scientist of the law
can use that word. The lawyer, whose intellectual attainments
are such as to make him a scientist of the law, must have
adopted the scientific method for the ascertainment of legal
truth. The scientific method requires that his empirical gen-
eralizations shall have been included in a rational generaliza-



tion, which is the formulated statement of the law, because it
determines conclusively from the nature of things how and
why certain judgments must be so and thus, the result always
being derived by deductions from the ultimate rational gener-
alizations, by which process the law thus determines the de-
cision in every particular case, which law must always be con-
formed to, irrespective of a direct estimate of the beneficence
of its result in any particular instance. It is this, and this
alone, which, in my judgment, makes the law a science, and
though I should be convinced that not many lawyers are legal
scientists, still I would not despair. If our conception of the
law falls short of being a scientific one, it can be only because
the judges and legislators whose duty it is to formulate verbal
statements of the law have not attained the intellectual stature
of scientists.

If "the law" is a system of rational generalizations to
which all specific controversies must be referred, and by de-
ductions from whose uniform standards all controversies must
be conclusively decided, then it follows that if no such certain
and uniform controlling standard is prescribed by the legisla-
tive enactment, and where, because of that fact (especially in
criminal cases), courts are left free to pronounce their judg-
ments (of guilt or innocence) by empirical inductions based
upon their differing personal experience, then, under such cir-
cumstances I say, courts do not declare, and are not governed
by "the law" but themselves are unconsciously seeking by
their judicial legislation to create law, and enforce their own
arbitrary edicts ; they are not enforcing or maintaining natural
law according to the formulated precepts of it, made by the
proper authority, but instead they become the executioners of
their own lawless wills. All this is but another way of vindi-
cating the maxim, "where the law is uncertain there is no law."
From the foregoing speculations it already appears that the
law is something outside of and independent of the judicial
mind. Let us now make further inquiry as to the nature of
law, from the scientific viewpoint.


If we would know what is to be understood by a con-
structive breach of the law we must first achieve a very
definite conception of the nature of law. After that we
can better discern all the conditions which might constitute its



constructive breach, as distinguished from its actual infraction.
Just as the laws of mathematics are not created by the
mathematicians, nor the physical laws by the physicists, who
discover or make formal statements of them, as also the laws
of our thinking are not products of thinking, so the laws
the real laws of a state are never products of judicial cerebra-
tion. All laws are pre-suppositions which alone make our
thinking about them, and statement of them, possible. The
province of the court is to discover, declare and enforce, the
prior existing law, and never to construct or create law. To
declare the law means only to formulate a verbal statement of
it as it exists, prior to and apart from the judicial formula,
and outside of the judicial mind. Thus the civil-state law, in
its proper and technical sense, is but natural justice, as we find
it in the very nature of our inter-human relations, and in the
formulated statements of it and such other artificial legisla-
tively created rules of conduct as the law-making power prop-
erly may enact, but enact only in furtherance of the security and
realization of natural justice among sentient beings. These
considerations it seems to me are the reasons underlying the
following language from the Supreme Court of the United
States: "In the ordinary use of language it will hardly be
contended that the decisions of courts constitute law. They
are, at most, only evidence of what the laws are ; and are not
of themselves laws." 2


The laws of natural justice are in the nature of things and
exist wholly independent of our knowledge of them, and would
still exist though every verbally expressed statement of them
should be destroyed. It follows that judicial opinions and
statutes should do no more than merely to declare our highest
conception of the most refined sense of natural justice to which
humanity has now attained, and to provide for its practical
realization. If it does either less or more than this, it is a
misconception of the law, and its enforcement should be de-
clared beyond the power of any court. To declare otherwise
would be to assert that our state machinery may be used de-
liberately and consciously to accomplish a wrong to violate
natural justice, or, what for practical purposes amounts to the
same thing, our best human conception of it.

"Swift v. Tyson, 16 Peters 18.



In accordance with the foregoing conception of law as ex-
isting in the nature of things, or as being a human regulation
conducing to the practical maintenance of natural justice, it
follows that juridical systems must always conform to right
reason, because the essence of right reason consists in the very
fact of a conformity of our thinking with the natural order of
things outside our minds. More technically expressed, we say
legal truth, which is but a subordinate department of truth as
a whole, is "the exact correspondence between the subjective
order of our [the judge's] conception and the objective order
of the relation among things." 3 If then a true conception of
law in civil matters is one which is an exact correspondence
with natural justice, as this exists in and is derived from the
very nature of things, and as a mere part of the natural law of
our social organism, then our formulated statements of the law
must always conform to right reason, because such conformity
is the very essence of a true conception of the law. Thus un-
derstood it is hardly possible to disagree with Blackstone and
those authorities following him, who say: "Statutes which
violate the plain and obvious principles of common right and
common reason are null and void." 4

Upon the supremacy of natural law, as the original of all
our formulated statements of law, Montesquieu wrote this:
"How iniquitous the law which, to preserve a purity of mor-
als, overturns nature, the origin and the source of all
morality." 6

Later Blackstone expressed himself about the supremacy
of natural law in these words: "No human laws are of any
validity if contrary to the law of nature ; and such of them as
are valid derive all their force and all their authority from
this original." 6

Statutes have been held unconstitutional merely because
"manifestly contrary to the first principles of civil liberty and
natural justice." 7

"Reason and the nature of things, which will impose laws
even upon the Diety." 8

Fiske's, Cosmic Philosophy.

Bennett v. Bogge, Fed. Case, No. 1819; Morrison v. Barksdale, 1 Harp.
(So. Car.), 101; Taylor v. Porter, 4 Hill 140. (N. Y., 1843)

"The Spirit of the Laws," Aldine edition, vol. 2, p. 556.

Blackstone's Commentaries.

T Holden v. James, 11 Mass. 405; Durkee v. City of Janesville, 28 Wise.,
405 and cases; Calder v. Bull, 3 Dallas, 387-388. (U. S.)

8 Fletcher v. Peck, 6 Cranch, 143, see dissenting opinion; Wilkinson v.
Lcland, 2 Peters, 1-658; Terrett v. Taylor, 9 Crauch, 50-52.


T a


I am well aware that many courts, without having
weighed the foregoing considerations as to the nature of law,
have held otherwise, but such courts repudiate and contradict
the expressly declared purpose of our Constitution and so dis-
credit themselves.

There is little excuse for the existence of government ex-
cept as affording a method for the authoritative formulation of
our best conception of natural rules of justice and promoting
their realization in practise. Although the preambles of our
Federal, and perhaps most of our State constitutions, pro-
claim their purpose "to establish justice ***** and secure
the blessing of liberty," and though to the end of establishing
justice "due process of law" was made mandatory, yet judges,
guiltless of the scientific conception of the law, have not hesi-
tated to contradict the constitutionally avowed purpose of gov-
ernment, and of "due process of law," by declaring that these
words do "not mean merciful nor even just laws." 9

Judges capable of saying that a state may violate the
obvious demands of natural justice (as distinguished from an
enforcement of laws deciding disputed problems of justice),
discredit the state, and invite for themselves contempt. To
uphold many such laws as constitutional would justify and
might necessitate a revolution by violence, as a means of re-
storing liberty and justice.

If, in a criminal case, a court should undertake to enforce
upon any person a judgment which was not in the further-
ance of natural justice as that must be viewed in our secular
states, dealing only with material factors, and which did not
conform to general, uniform and certain rules of conduct,
having an exact, verbally formulated existence outside the
mere arbitrary will of the court, and well known, or easily ac-
cessible to all, prior to the acts constituting the offense then
before the court I say, if a court should undertake to enforce
anything different from such a law, it would not be enforcing
the law at all, and to submit to it would be submission to a
government by the arbitrary and despotic will of a judiciary,
unrestrained by subjection to the law, and not in any sense
would this be a government by courts according to law
Criminal punishment under such circumstances would be pun-
ishment for constructive crimes.

Eames v. Savage. 77 Me. 212.



If the state, in violation of the foregoing injunctions,
should be permitted to penalize an act which is not an essen-
tial element in doing actual violence to natural justice in rela-
tion to material factors, the statute could not be one enacted in
the furtherance of the governmental purposes to establish
justice and secure the blessings of liberty, and therefore such
a law could not be within the legitimate province of such a
government as we profess to maintain. Furthermore such a
statute, penalizing an act which is not an essential element in
violating such natural justice in relation to material things,
must in itself be the creation of an injustice that is, it must
in itself and from its very nature authorize an invasion of
liberty, unwarranted by any necessity for defending natural
justice or maintaining equality of liberty, and therefore the
enforcement of such a statute would be the deprivation of
liberty without due process of law, as we now understand
law in the light of our foregoing study of its nature. I con-
clude that every such statute as I have last hereinabove de-
scribed is an attempt to punish for a constructive offense is a
violation of our constitutional guarantee of "Due Process of
Law." With so much by way of preliminary discussion, we
may proceed to some preliminary classification of constructive
offenses under several heads, indicative of the different
sources from which comes the tendency toward the construc-
tion of offenses and the wrongful infliction of penalties based
upon the creation.


It follows from the fact that human justice and a secular
State can deal only with material factors, that an offense to be
real, and not merely constructive, must be conditioned upon a
demonstrable and ascertained material injury, or an imminent
danger of such, the existence of which danger must be deter-
mined by the known laws of the physical universe. Our Con-
stitution, both in its guarantee of freedom of speech and press,
and in its guarantee of due process of law (as we now under-
stand the law, according to the foregoing analysis) precludes
the construction of mere psychologic crimes. The offenses
which are based only upon ideas, expressed or otherwise, such
as constructive treason, witchcraft and heresy, either religious
or ethical, and all kindred psychologic, or other constructive
injuries, are prohibited, because the very nature of the law,



whose supremacy and processes our Constitution guarantees,
is such that American legislators cannot be permitted to predi-
cate crime upon mere psychologic factors. Manifestly this
does not preclude punishment when these psychologic factors
have ceased to be merely such, by having resulted in actual
material injury as distinguished from constructive and spec-
ulative injury; for example, it does not preclude punishment
in cases of personal libel, or where the uttered opinion has re-
sulted in crime, under such circumstances as to make one an
accessory before the fact, or such as proves a conspiracy to
secure its commission. Under such circumstances, no man is
punished for a mere speech as such, nor for its psychologic
effect merely as a psychologic effect, but he is punished for his
practical contribution toward the actually realized ascertained
material injury, the speech being only the evidence of his com-
plicity in the achievement of the resultant invasion and material

I have spent so much space in efforts to clarify the vision

Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 34 of 43)