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of a book upon its hypothetical future reader has only a
speculative future existence, not determinable with exactness
by any known law of the physical universe, and therefore is
not a demonstrable fact, but one that we only guess at, and
as to which neither the accused, nor any one else, can furnish
certain information, nor have any certain advance knowledge
as to just exactly what will induce the court or jury to judge
it to be criminal. The criminal intent of a man charged with
crime is a fact which in point of time antedates the indictment
and verdict, and has such prior existence objectively to the
mind of the juror or trial court. Not so with obscenity. The
test by which juries are instructed to determine the existence
of "obscenity " depends upon their speculation about the psy-
chologic tendency of a particular book upon a future hy-
pothetical reader, which tendency has not yet become actualized
at the time of indictment or trial, and which psychologic tend-
ency is not known to us to be controlled by any exact
known law having the immutability of the physical laws of
our material universe. It follows that, unlike specific intent,
which is a demonstrable fact of past existence and objective
to the mind of the court, the unrealized psychologic tendency
by which a particular book is judged "obscene" has no dem-
onstrable existence except as a belief about a doubtful future
possibility, and exists exclusively as a mere belief in the
mind of the trial judge or jury, and without any known proven
or provable present, corresponding objective. Such an uncer-
tainty is one of law and not of evidence, because it arises out
of the fact that the statute (or the judicial legislation under
it as to the tests of obscenity) predicates guilt upon a con-
clusion about an undemonstrable factor of speculative future

No legislature has the power to penalize travel in an auto-
mobile at a "dangerous speed," and leave to the trial court or
jury to say in each case whether the speed is dangerous or not.
What is a "dangerous" speed is a legitimate subject for the




exercise of legislative discretion, and is determinable only by
the legislature, and its authority cannot be delegated to the
varying judgments of varying juries. So likewise what is to
be deemed of dangerous moral tendency is a matter exclusively
of legislative discretion, and must be determined and definitely
fixed by decisive definition of the law-enacting power, and
the formulation of tests cannot be delegated to the varying
judgments of varying courts or juries. Since the "obscenity"
of a book is not by the statute defined to consist in any of its
sense-perceived qualities and since therefore the legislature has
not completed nor expressed its legislative discretion to de-
cide what is deemed to be of "dangerous tendencies," and since
that legislative function cannot be delegated to the jury or
judge to be exercised ex post facto or otherwise, it follows
that there is no law upon the subject and no due process of
law in any such prosecution.


To constitute a valid criminal law the statute under con-
sideration must so precisely define the distinguishing char-
acteristics of the prohibited degree of "obscenity" that guilt
may be accurately and without doubt ascertained by taking
the statutory description of the penalized qualities and solely
by these determine their existence in the physical attributes in-
herent in the printed page. Judicial tests of "obscenity" can-
not be read into the statutory words. Nor can official or
judicial speculations (of a character not calculated to discover
such definitely penalized physical qualities in the book), be
permitted so long as they deal only with a mere unrealized
psychologic potentiality for influencing in the future some
mere hypothetical person. Such speculative psychologic ten-
dencies are never found with certainty in any book, but are
read into it, with all the uncertainty of the a priori method,
as an excuse for a verdict of guilty. Even if the legislative
body attempted to authorize such a procedure it would be a
nullity under the maxim, "Where the law is uncertain there is
no law." Therefore, such procedure cannot be "due process
of law." An unrealized psychologic tendency cannot be made
the differential test of criminality, even though we should
admit that such a tendency may properly appeal to the legis-
lative discretion and may properly result in penal laws wherein



the statutes and not the courts specifiy the tests, definite and
certain, by which to determine what it is that is deemed to
possess the criminal degree of such dangerous tendency.


We now come to the contention that a criminal statute
cannot constitute "due process of law," unless it is general,
uniform, fixed and certain. These qualities are more or less
related, since if a law is not fixed and certain it can seldom be
general and uniform in its application. Now we are specially
interested to get a more condensed summary as to what is
meant by the requirement of fixity and certainty, in a statute.

Our claim is that a criminal statute, to constitute "due
process of law," must define the crime in terms so plain, and
simple, as to be within the comprehension of the ordinary citi-
zen, and so exact in meaning as to leave in him no reasonable
doubt as to what is prohibited. Those qualities of generality,
uniformity, and certainty, must arise as an unavoidable ne-
cessity out of the very letter of the definition framed by the
law-enacting power, and not come as an incidental result, from
an accidental uniformity in the exercise, by courts, of an un-
constitutionally delegated legislative discretion. If a statute
defining a crime is not self-explanatory, but needs interpreta-
tion or the interpolation of words or tests to insure certainty
of meaning, or because its ambiguity permits of more than
one judicial interpretation, then it is not "the law of the land,"
because no such selected interpretation of the courts has ever
received the necessary sanction of the three separate branches
of legislative power, whose members alone are authorized
and sworn to define crimes and ordain their punishment.
Laws defining crimes are required to be made by the law-
making branch of government because of the necessity for
limiting and destroying arbitrariness and judicial discretion in
such matters. That is what we mean when we say ours is
a government by law and not by men. It follows that it is
not enough that uniformity and certainty shall come as the
product of judicial discretion, since "law" is necessary for the
very purpose of destroying such discretion in determining
what is punishable.





Historical Interpretation of ' ' Law ' ' in Relation to
Statutory Certainty

As I view history, the evolution of organized government
toward liberty, especially in its relation to laws which are penal
in character, is clearly divided into three general stages of
tendency. The first of these manifests itself in the effort to
restrain autocratic sovereigns and their minions in the arbitrari-
ness of their power to punish, by subjecting their wills and
penalties to the authority of prior known rules or laws. The
second step in this evolution toward liberty is to curtail the
authority of the lawmaking power as to the manner of its
exercise, so that it may not, even under the forms of law,
violate that natural justice which requires uniformity of the
law in its application to all those who in the nature of things are
similarly situated, which uniformity, of course, is impossible
unless the law is certain in the definition of what is prohibited.
The third tendency is marked by the curtailment of the legis-
lative power as to the subject matter of its control, so as to
conserve a larger human liberty by excluding certain conduct
and progressively an increasing quantum thereof from all
possible governmental regulation, even by general, uniform
and certain laws. This should later limit legislation to the pro-
hibition of only such conduct as in the nature of things neces-
sarily involves an invasion of the liberty of another, to his
material and ascertainable injury. I have no doubt it was such
a government, of limited power to regulate human affairs, that
the framers of American constitutions intended to establish.
The stage before the evolution above indicated we gener-

13 Revised from The Albany Law Journal, April, 1908.



ally term a lawless government of men, in contradistinction to a
government by men according to law, and such a government
of men is always despotic and arbitrary, although it may at
times be a relative benevolent despotism. The first advance
means a government by men according to prior established
rules, which rules may be as invasive and unjust as the legis-
lative power sees fit to make them. This condition is aptly
described as tyranny by the laws, of which we find many ex-
amples all around us. The second progressive stage is that
wherein men strive to limit the exercise of the law-making
power so that it may not, even under the forms of law, do vio-
lence to that natural justice which demands defmiteness and uni-
formity affecting those who are similarly accused.

The third stage wherein the legislative power is limited
to the suppression of acts which are necessarily, directly,
and immediately, invasive, is aptly termed liberty under the
law. Our present stage of evolution, so far as the leaders
of thought are concerned, is probably to be located near the
beginnings of this stage, and in the course of a few thousands
of years we may attain to something approximating real
liberty under the law; and in another million years we may
attain to the Anarchist ideal, which is liberty without law,
made possible because no one has the inclination to invade
his neighbor, and all are agreed as to what constitutes an
invasion. The great mass of Americans, and humans gener-
ally, are now in that stage of their development which compels
a love of tyranny under the forms of law a tyranny tempered
only by the discretion of the ignorant, such as know nothing
of liberty in the sense of an acknowledged claim of right to
remain exempt from authority.

The transition from despotism to government by law in its
earlier stages is marked by the misleading seemings of law,
which, however, are devoid of all its essence. This is illus-
trated in many of the miscalled laws of the Russian Tsar, and
also in the Chinese code, which latter prescribes a punishment
for all those who shall be found guilty of "improper conduct,"
without supplying any further criterion or test of guilt. Mani-
festly under such authority the magistrates are justified in
punishing anything which whim, caprice, or malice might
prompt them to adjudge "improper." Accordingly, we have
a state of affairs wherein under the misleading appearances of



law everything is condemned, and the arbitrary will of the
officers of the State again creates the penalty instead of merely
enforcing "the law" as they find it. Thus, while observing the
outward forms and seemings of law, the people are still gov-
erned by the mere despotic wills of officials.

Upon the questions as to what are all the essentials of law,
and what are the limits of liberty, we still have, in the main,
very crude thinking and perhaps still more crude efforts to-
ward generalizations. So far as my investigations have in-
formed me, no court has had the confident clarity of vision
to even attempt the formulation of a comprehensive general
statement as to the limits of liberty and governmental control.
This of course means that our judges are still in that early
stage of their intellectual development wherein this branch of
the law has not become a science. However, it is a most de-
plorable state of mind which too often impels courts to confess
to the permanent intellectual bankruptcy of the judiciary by
asserting that such definitive generalizations are impossible.

The present purpose is to inquire into the historical ver-
dict as to the reasons which make law a necessity and espe-
cially the verdict of all lovers of liberty as to the degree of
certainty required to make a penal statute THE LAW, and its
enforcement "due process of law." The method will be to ex-
hibit the facts and the authoritative declarations concerning
this question as these appear in our juridical history. This
fragmentary material often includes very crude statements of
imperfectly conceived principles, as well as mere empirical gen-
eralizations, but out of it we will later erect a rational gen-
eralization, and this will be done so far as is necessary to de-
termine the degree of certainty required in the law, as the
same is formulated in penal statutes.

I confess that it seems to me as though men claiming to
be learned in the law should be presumed to know all that
follows, and yet it is self-evident that they do not. I say
self-evident, because the fact is notorious that among the many
uncertain criminal statutes those only which are directed against
"obscene, indecent, filthy or disgusting" literature and art,
which words are as vague as a London fog, have resulted in
over 5000 persons being deprived of life, liberty, or property,
and yet it seems hardly to have occurred to any one connected
with these cases to question the constitutionality of those laws



because of their uncertainty. Such facts, and numerous
equally vague statutes and municipal ordinances which are
continually being enforced, without having their constitution-
ality questioned, demonstrate that the intelligence of the pro-
fession in general has not yet risen to the point where there is
any need to apologize for attempting to enlighten its members
concerning the constitutional requirement of certainty in penal


John Adams, in "A Defense of the Constitution and Gov-
ernment of the United States," defends at some length the
proposition that even under laws to which all are equally sub-
ject the Majority may oppress the minority. In this connec-
tion he speculates about the meaning and limits of liberty, in
the course of which 'discussion he quotes from numerous old
authors about the necessity of a government according to
law to prevent the tyranny of arbitrary punishments by the
magistrate. I will now reproduce some of Mr. Adams' quota-
tions and speculations, asking the reader as he scans these
quotations concerning the necessity for having princes and
judges govern according to law, always to bear in mind the
essential nature of the law, in contradistinction to arbitrary

"It is weakness rather than wickedness which renders men
unfit to be trusted with unlimited power. * * * Junius
says : 'Laws are intended, not to trust to what men will do, but
to guard against what they may do.' Aristotle says that 'A
government where the Laws alone should prevail, would be
the kingdom of God.' This indeed shows that this great phi-
losopher had much admiration for such a government. Aris-
totle says, too, in another place, 'Order is law, and it is more
proper that law should govern, than any one of the citizens ;
upon the same principal, if it is advantageous to place the
supreme power in some particular persons, they should be
appointed to be only guardians, and the servants of the laws/
These two are very just sentiments, but not a formal defini-
tion of liberty. Livy, too, speaks of happy, prosperous, and
glorious times, when 'Imperia legum potentiora fuerant quan
hominum.' But he nowhere says that liberty consists in being
subject only to the legum imperio. Sidney says, 'No sedition
was hurtful to Rome, 'until through their prosperity some



men gained a power above the laws/ In another place he tells
us too, from Livy, that some, whose ambition and avarice
were impatient of restraint, complained that 'leges rem surdam
esse, inexorabilem, salubriorem inopi quam potenti.' And in an-
other that no government was thought to be well constituted
'unless the laws prevailed against the commands of men.' But
he has nowhere defined liberty to be subjection to the laws
only. Harrington says, 'Government de jure, or according to
ancient prudence, is an art, whereby a civil society of men is
instituted and preserved upon the foundation of common in-
terest, or, to follow Aristotle, and Livy, it is an empire of
laws and not of men.' And government, to define it according
to modern prudence, or de facto, is an art, by which some
man, or some few men, subject a city or a nation, and rule it
according to his or their private interest, which, because the
laws in such cases are made according to the interest of a
man, or a few families, may be said to be the empire of man,
and not of laws. Sidney says, 'Liberty consists solely in an in-
dependency on [of] the will of another, and, by a slave, we
understand a man who can neither dispose of his person or
goods, but enjoys all at the will of his master.' And again,
'As liberty consists only in being subject to no man's will and
nothing denotes a slave but a dependence upon the will of
another; if there be no other law in a kingdom but the will of
a prince [or of the judiciary] there is no such thing as
liberty !' " 14

It appears sufficiently evident from these past contentions
for liberty that the necessity for statutes in criminal cases
arises out of the necessity for strengthening the weakness and
curbing the passions of judges, who, according to all experi-
ences and while remaining human, cannot be safely trusted
with arbitrary power to determine what shall be punishable.
Since such are the reasons uniformly assigned by the older
philosophers for their insistence upon subjecting the will of
judges to law, it follows that criminal statutes fall short
of satisfying the demand for law, if by their uncertainty they
compel, or permit, judges to exercise a discretion in framing
tests of criminality such as are not specifically written into the
very words of the penal code.

Let us now briefly trace these same influences in the origin
of Magna Charta and the English conception of "the law of

14 "A Defense of the Constitution," etc., letter XXVI in Vol. 1.



the land." This of course is re-stated, without being altered,
in our American constitutional guarantee of "due process of
law." A little farther on we consider the later unfoldment of
the judicial interpretation of "law."


The ancient prohibition against an infliction of penalties
"without due process of law," or, what usually amounts to
the same thing, those inflicted under "ex post facto laws," or
for mere constructive injuries or crime, was the most es-
sential and fundamental guarantee of an Englishman's liberty.

King John, we are told, filled his coffers by confiscation and
cruel extortions. He invited dignitaries to London, then de-
clared them prisoners until they should pay large fines. These
penalties were not inflicted for offenses against any general
or prior known laws, such that with certainty could have
informed the citizens in advance that their conduct was illegal,
or warn them of the penalty thereof. "Liberty of all kinds was
vendible in the reign of John" precisely because there was no
law, in the sense of general rules with undoubted certainty of
meaning, to define the limits of liberty or furnish a refuge of
defense for the citizen in the exercise of his liberty, or to cur-
tail the arbitrary power of a tyrant King, or his judiciary.

To prevent this lawlessness of official power as exemplified
in the arbitrary infliction of penalties, the barons by force
exacted the Magna Charta. In that document, as confirmed by
Henry the III and Edward I, we find it stated that "No
free-man shall be taken or imprisoned or disseized of his
freehold or liberties, * * * but by lawful judgment of
his peers or by the law of the land." 15 If read in the light of
the historical facts which brought this into being, it is manifest
that the primal purpose of all this was that no man might be
deprived of his property or liberty or be tricked into criminal-
ity by any unknown or uncertain rules, such as would not
warn him in advance, and with unerring certainty, that his
conduct was prohibited.

The Magna Charta required only that criminal statutes
should be certain and general. It did not yet by its strict letter
prevent their being made so after the fact charged as crime,
if the King and Parliament saw fit then to prescribe a punish-

"Chap. 29 Magna Charta.



ment. This furnished the opportunity for shifty tyrants to
evade the spirit of Magna Charta, and they did it. In the 25th
Edward III, a law provided thus: "It is accorded, that if any
case, supposed treason, which is not above specified, doeth
happen before any justices, the justices shall tarry without
any going to judgment of the treason, till the cause be showed
and declared before the King and his Parliament whether it
ought to be judged treason or other felony." 16 Thus tyrants
kept the letter of the "due process of law" provision of Magna
Charta, and yet accomplished quite effectively the repudiation
of its spirit and of the very essence of law, and thus they again
successfully destroyed liberty. From such circumstances grew
the demand which resulted in a charter-prohibition against
ex post facto laws.

However, the tyrants are always fertile in the evasion of
charters and constitutions, such as are intended to limit their
arbitrary power and correspondingly to protect the citizen
against official invasion. So next we find men imprisoned
under the authority of a special royal commission, which im-
plied a process similar to our present occasional executive
legislation. There were not wanting Judges who, impelled
by a lust for power or even more base motives, were ready to
affirm the validity of such evasions of the English Charters
of Liberty, by the judicial engraftment of exceptions, called
"martial law." And so it became necessary to make English
liberties more safe, by perfecting the Writ of Habeas Corpus,
and securing the re-affirmance of the former safeguards of
liberty. In all of the English charters of liberty, and their
various re-affirmations, one principle is always discernable
in the use of such words as "due process of law," and the
"law of the land." It was not the purpose to change the
person of the despot, or to transfer despotic power from an
autocrat to the judiciary; neither was it intended merely to
influence those vested with despotic power to change the
mode of exercising their discretion under it. On the contrary,
the plain purpose was to destroy the discretion itself, so as, at
the trial of an accused, to preclude every possibility of an
arbitrary judicial determination as to what should be the
criminal statutes as applied to his acts. All along the history
of these stormy times, it is made plain that the charter phrases,
for the protection of liberty, were designed to mean that no

"English Liberties 64.



man should be deprived of liberty or property except by 2
prior, duly enacted, publicly promulgated law, which to be
"laiv" must be general in terms, equal in its application to all
who in the nature of things are similarly situated, and to ac-
complish this it must be so certain as to its meaning that no
man of ordinary intelligence could be misled by it. The mani-
fest intention was to safeguard liberty, against every arbitrary
determination of guilt, in a manner that could not be realized
if an enactment should lack any of these qualities, and in con-
sequence we must say that a conviction under such statute
would not be according to the law, and therefore would not be
within Magna Charta or our own constitutionally guaranteed
"due process of law." If a statute defines a crime in uncertain

Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 36 of 43)