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terms, a judge who, under the pretext of construing it, should
attempt to supply the absent but necessary certainty of mean-
ing, through judicially created tests of criminality, then, as to
the person on trial, such a judge would be enacting an ex post
facto law. If such judicial legislation should thereafter be
uniform in all subsequent cases, the uniformity would still be a
matter of accidental uniformity in the exercise of arbitrary
judicial legislation, and not a compulsory uniformity imposed
by definite and certain legislative enactment. Even under uni-
formity of judicial legislation there would still be the absence
of that unavoidable uniformity which should result from sub-
jecting the judicial will to the certainty of a statute and which
compulsory conformity is an indispensable requirement of
"law," and of "due process of law." Now let as inquire how
far this interpretation of the historical events harmonizes with
the views of the early writers, interpreting the charter phrases
which were incorporated into our constitution. Here let it be
remembered that our constitutional guarantee of "due process
of law" was adopted after most of the following construction
had been placed upon the word "law," and probably because of
these constructions.

"Every law may be said to consist of several parts : One
declaratory, whereby the right to be observed, and the wrong
to be eschewed, are clearly defined and laid down.""

Although there is much in Montesquieu's "Spirit of the

"Blackstone in his Introduction, Book 1, p. 5S.



Laws" that we have outgrown, yet he was the precursor of
most that is good in modern political institutions, and, as it
appears by the frequent references to him in The Federalist,
his book did mucli to shape our own constitution. It is nearly
two centuries since he wrote :

"Under moderate governments, the law is prudent in all
its parts, and perfectly well knozvn, so that even the pettiest
magistrates are capable of following it. But in a despotic
state, where the prince's will is the law ; though the prince were
wise, yet how could the magistrate follow a will he does not
know? He must certainly follow his own. 18 In despotic
governments there are no laws, the judge himself is his own
rule." 19

The following words, also from Montesquieu, show what
the contest for certainty of the law meant with special refer-
ence to intellectual crimes, and, with a very few verbal changes,
will be seen to bear with unusual force against the validity
of our present obscenity laws. He said : "Nothing renders the
crime of high treason [and we may add obscenity] more arbi-
trary than declaring people guilty of it for indiscreet speeches.
Speech is so subject to interpretation; there is so great a
difference between indiscretion and malice ; and frequently little
is there of the latter in the freedom of expression, that the law
can hardly subject people to a capital punishment for words
unless it expressly declares what words they are. Words do
not constitute an overt act; they remain only in idea. When
considered by themselves, they have generally no determinate
signification, for this depends on the tone in which they are
uttered. It often happens that in repeating the same words
they have not the same meaning; this depends on their con-
nection with other things, and sometimes more is signified by
silence then by any expression whatever. Since there can be
nothing so equivocal and ambiguous as all this, how is it
possible to convert it into a crime of high treason? Wher-
ever this law is established, there is an end not only of liberty f
but ever of its very shadow/' 30 Italics are mine, usually, in
,all these quotations, T. S.

Beccaria, who profited by studying Montesquieu, also elab-

"Aldine Edition, Vol. 88, p. 79.

"Vol. 1 Aldine Edition, p. 19.

*>The Spirit of the Law, v. 1, p. 282, Aldine Edition.



orates this theme of the necessity of certainty of law as a
condition of liberty. In part he wrote as follows:

"Judges, in criminal cases, have no right to interpret the
penal laws, because they are not legislators. They have not
received the laws from our ancestors as a domestic tradition, or
as the will of a testator, which his heirs, and executors, are to
obey; but they receive them from a society actually existing,
or from the sovereign, its representative. * * * There is
nothing more dangerous than the common axiom: The spirit
of the laws is to be considered. To adopt it is to give way to
the torrent of opinions. This may seem a paradox to vulgar
minds, which are more strongly affected by the smallest dis-
order before their eyes, than by the most pernicious, though
remote, consequence produced by one false principle adopted
by a nation. When the rule of right zvhich ought to direct the
actions of the philosophers, as well as the ignorant, is a matter
of controversy, not of fact, the people are slaves to the magis-
trate. If the poiver of interpreting laws be an evil, obscurity
in them must be another, as the former is the consequence of
the latter. This evil will be still greater if the laws be written
in a language unknown to the people; who, being ignorant
of the consequences of their own actions, become necessarily
dependent on a few, who are interpreters of the laws, which
instead of being public, and general, are thus rendered private
and particular. If this magistrate should act in an arbitrary
manner, and not in conformity to the code of laws, which
ought to be in the hands of every member of the community,
he opens a door to tyranny, which always surrounds the con-
fines of political liberty. I do not know of any exception to
this general axiom, that every member of society should
know when he is criminal, and when innocent. If censors, and,
in general, arbitrary magistrates, be necessary in any govern-
ment, it proceeds from some fault in the constitution. The
uncertainty of crimes hath sacrificed more victims to secret
tyranny than have ever suffered by public and solemn cruelty.

"No Magistrate then (as he is one of the society) can,
with justice, inflict on any other member of the same society
punishment that is not ordained by law. Judges in criminal
cases have no right to interpret the penal laws, because they
are not legislators. Who then is their lawful interpreter? The
sovereign that is the representative of society, and not the



judge, whose office is only to examine if a man have or have
not committed an action contrary to the law." 21

An American commentator writing before the Revolution
defines "The law of the land" to mean, By the common law
or by the statute law, by the due course and process of law.
He quotes Lord Coke as thus interpreting the clause in ques-
tion, "the law is the surest sanctuary that a man can take, and
the strongest fortress to protect the weakest of all. * * *
No man is deceived while the law is his buckler. * * *
The law is called right because it discovereth that which is
crooked or wrong; for as right signifieth law, so crooked or
wrong signifieth injuries; injury is against right. A right
line is both declaratory of itself and the oblique. Hereby the
crooked chord of that which is called discretion appeareth to
be unlawful, unless you take it as it ought to be, discreti est
discerne per legern, quid sit justum discretion is to dis-
cern by the law what is just." 22

"It is the function of a judge not to make but to declare
the law according to the golden metewand of the law, and not
by the crooked cord of discretion." Coke.

It must be apparent from this conception of "law" that
under "due process of law" as used in the English charters
and defined before the days of our constitution, and with such
interpretation incorporated into these constitutions, no man
can be deprived of property or liberty for acts made criminal,
by any exercise of power, which seeks to invest either judges
or juries, either directly or indirectly, with a discretion to
determine whether or not any undisputed act shall be penalized ;
but, on the contrary, the very essence of "law" in "due process
of law," in criminal cases at least, is that all such discretion
shall be destroyed by the very explicitness of the law itself f
and that all juridical discretion shall be limited to discovering
the facts and discerning solely from the letter of the law
whether these ascertained facts constitute a crime. Only thus
can statutes curb the tyranny of arbitrary judicial power.
Here is another authoritative statement as to the requirement of
the law, which again is a prerevolutionary authority, in the
light of which our constitutional phrase must have been

M An Essay on Crimes and their Punishment. (Edition of 1775) pp. 12-41.
"English Liberties, by Henry Carr and William Nelson, pp. 21 to 27. Provi-
dence, R. I., 1774.) 2 Coke's Institutes, marginal page 56.



"It is further essential to political freedom that the laws
be clearly obvious to common understanding, and fully notified
to the people. * * * When the people first learn the law
by fatal experience, they feel as if the judge was in effect
legislator, and as if life and liberty were subjected to arbitrary
control. * * * The same will be the consequences where
the law is imperfectly and indefinitely expressed. The style
thereof should be clear, and as concise as is consistent with
clearness ; general terms also should be particularly avoided,
as liable to become the instruments of oppression. Under
the Act 14 Geo. 11 c. 6, stealing sheep ( or other cattle' was
made felony without benefit of clergy ; but those general words
'or other cattle' being considered as too vague to create a
capital offense, the act was properly holden to extend only to
sheep." 23

That judicial interpretation of "Law" just quoted was
adopted into our constitutional guarantee of "Due Process of
law," and, measured by that standard, all uncertain criminal
statutes must be annulled because not "Law" and not consti-
tuting "due process of law."

In the debates of the English Parliament frequent refer-
ences can be found in which certainty of the law is advocated.
(See 4 Parliamentary History, pp. 115-117-118 for illustra-
tions). In 1792 (Stat. 32 Geo. HI, c. 60) was passed the act
which in cases of criminal libel made the jury the judge of both
law and fact. Before this (in 1784) an English court de-
nounced uncertainty of the law of libels or its administration in
no uncertain terms. Here is the language officially reported.

"Miserable is the condition of individuals, dangerous is
the condition of the state, if there is no certain law, (or which
is the same thing) no certain adminstration of law, to protect
individuals or to guard the state. * * * Under such an
administration of the law no man could tell, no counsel could
advise, whether a paper were or zvere not punishable. I am
glad that I am not bound to subscribe to such an absurity,
such a solecism in politics." 26

If the English courts have not so uniformly ignored un-
certain statutes as might be desired, the explanation may per-
haps be found in the fact that Magna Charta is a limitation
upon only the sovereign, and not upon Parliament, in the sense

M Lord Auckland's Principles of Penal Law. pp. 312-314 (1771).
"King T. Dean of St. Asaph, 3 Terms Rep. 431. (1784)



in which our American constitutions operate to limit legis-
lative power. If therefore English courts, because of uncer-
tainty, are to annul an enactment of Parliament, the justifica-
tion therefore can be found only in the very nature of their
institutions, without any fundamental written authority mak-
ing such natural law a limitation upon legislative power.

Erskine, although he did not believe in an unabridged
freedom of speech, did believe in more such liberty than was
current in his time, and he did believe in "Law" in the true
sense. I think it worth while in this connection to quote a few
paragraphs from his speech in defense of Lord George Gordon,
.as illustrating his view of the point now under discussion. He
said :

"In nothing [else] is the wisdom and justice of our laws so
strongly and eminently manifested, as in the rigid, accurate,
cautious, explicit, unequivocal definition of what shall con-
stitute this offense. * * *

"If treason, where the government itself is directly offend-
ed, were left to the judgment of its ministers, without any
boundaries nay, without the most broad, distinct and invio-
lable boundaries marked out by law there could be no public
freedom and the condition of an Englishman would be no
better than a slave's at the foot of a Sultan; since there is
little difference whether a man dies by the stroke of a sabre,
without the forms of a trial, or by the most pompous cere-
monies of justice, if the crime could be made at pleasure by
the state to fit the fact that was to be tried. * * *

"A long list of new treasons, accumulated in the wretched
reign of Richard the Second, from which (to use the language
of the act that repealed them) 'No man knew what to do or
say for doubt of the pains of death,' were swept away in the
first year of Henry the Fourth, his successor ; and many more,
which had again sprung up in the following distracted arbitrary
reigns. * * *

"This wise restriction [against arbitrary judicial deter-
mination of what shall be treason] has been the subject of
much just eulogium by all the most celebrated writers on the
criminal law of England. Lord Coke says, 'The Parliament
that made it was on that account called Benedictum or Blessed' ;
and the learned and virtuous Judge Hale, a bitter enemy and
opposer of constructive treasons, speaks of this sacred institu-



tion with that enthusiasm which it cannot but inspire in the
breast of every lover of the just privileges of mankind."

Again in his argument insisting on the definiteness of the
law, he contends that it shall "be extended by no new or occa-
sional constructions to be strained by no fancied analogies
to be measured by no rules of political expediency to be
judged by no theory to be determined by the wisdom of
no individual, however wise but to be expounded by the
simple genuine LETTER of the law." 26

Although Erskine lauded the certainty of the statute, and
no doubt thought it at least certain enough to preclude the
conviction of his client, Lord Gordon, we still find an abundance
of complaint, after his time. Here is a sample taken from a
protest of the Peers in 1819. "The offense of publishing a libel
is, more than any other that is known to our law, undefined
and uncertain. Publications which at one time may be con-
sidered innocent and even laudible may at another, according
to circumstances and the different view of public accusers, of
judges and of juries, be thought to be deserving of punishment,
and thus the author or publisher of any writing dictated by the
purest intentions on a matter of public interest, without any
example to warn, any definition to instruct, or any authority
to guide him, may expose himself to a long imprisonment and
a heavy fine." 27


From such solicitude for that liberty which ever depends
upon the certainty of meaning in the criminal statute came
the ancient maxim: Ubi jus incertum, ibi jus nullum
"Where the law is uncertain, there is no law." 28

Here it is important that we examine a little further into
the importance of maxims in general and this last one quoted
in particular: "All great judges and writers have been led by
maxims. * * * Where the maxims lead and illumine
the great ends of jurisprudence have been advanced; constitu-
tions and their implications have been respected. Judges who
understand, respect and cite maxims, save great principles from
clouds of doubt and miserable equivocation. * * * No-
thing more greatly obstructs usurpation, abuse of power, and
arbitrariness in its edicts than do maxims. * * * All

28 Erskine's Speeches, Vol. 1, pp. 72 to 78. Edition of 1810.
"41 Parl. Deb. 747.

^Black's Law Dictionary, p. 1196; Bouvier's Law Dictionary, Rawl's Re-
vision v. 2, p. 381.



of the admittedly authentic maxims are expressions of mercy,
reason and moderation, and are often highly Christain in
spirit and suggestion. Lovers of liberty consecrate the max-
ims, oppressors desecrate them. * * * Maxims are the
condensed good sense of all nations. They are the essence of
wisdom in all ages. Whenever the law is the perfection of rea-
son, they are not excluded but they must necessarily be in-
cluded. Jurisprudence can lay claim to no other element so
lustrous, so illuminating and attractive, as its great fundamental
maxims." 29

Upon the subject of the particular maxim with which we
are now concerned, namely "where the law is uncertain, there
is no law," Mr. Hughes, among other things, has this to say,
all of which is applicable to our present judicially enacted
tests of the "obscene, indecent, filthy and disgusting" litera-
ture and art.

"Where the rule is alternating, as antipathy or affection,
caprice or whim dictates, there is no law. And so it is where
for one the foundation for a judgment must be one kind of
matter, and for another, a different. Where for one there
must be allegations and proofs and for another anything, even
palpably sham and false statements."

Concerning jurisprudence, he says : "Its value depends on
a fixed and uniform rule of action. * * * If water at one
time would extinguish fire and at another would spread a con-
flagration; if on one day it would bring life and the next
death, its value would be destroyed. * * * And so it is in
language, when words have no fixed meaning. * * *
Those who rule in disregard of obligation and reason, may be
likened to the sailor who bores a hole in the ship upon which
the safety of all depends." 30


Alexander Hamilton in discussing this subject, among
other things wrote : "I agree [with Montesquieu] that there is
no liberty if the power of judging be not separated from the leg-
islative and executive powers, [p. 484.] To avoid an arbi-
trary discretion in the courts, it is indispensable that they should
be bound down by strict rules and precedents, which serve to
define and point out their duty in every particular case that

"Hughes on Procedure v. 2, pp. 1003-1007; see also, Coke on Littleton, 11,.
a, (marginal).

30 Hughes on Procedure, v. 2, p. 1237.



comes before them ; * * * The creation of crimes after
the commission of the fact, or, in other words, the subjecting
of men to punishment for things which, when they were done,
were breaches of no law for could not have been ascertained
to be such because of the uncertainty of the statute] ; and the
practice of arbitrary imprisonment have been in all ages the
favorite and most formidable instruments of tyranny, [p. 490.]
The courts must declare the sense of the law ; and if they
should be disposed to exercise will instead of judgment, the
consequence would equally be the substitution of their pleasure
to [for] that of the legislative body." [p. 487.] 30a

"It is law which has hitherto been regarded in countries
calling themselves civilized, as the standard by which to
measure all offenses and irregularities that fall under public
animadversion. * * * It [the law] has been recommended
as 'affording information to the different members of the com-
munity respecting the principles which will be adopted in de-
ciding upon their actions. It has been represented as the
highest degree of inequity to try men by ex post facto law, or
indeed in any other manner than by the letter of a law, for-
mally made and sufficiently promulgated.' " 31

Prof. Thomas Cooper quotes with approval the following
words of Richard Carlile (about A. D., 1820), which have
as direct and certain applications to the uncertain meaning of
"obscene" as to the uncertainty about the meaning of "blas-
phemy" or "Christianity." Carlile wrote : "No one can under-
stand what is meant by blasphemous publications, or by
Christianity; and what no one can understand, no law can
justly take cognizance of, or support." 32

Before this Blackstone had made a similar protest against
the heresy statutes, although he approved of most of the super-
stitions of his time, including witchcraft and the prosecu-
tions for heresies and blasphemy, yet he had too good a legal
mind not to see the evils of uncertainty as to the criteria of
.guilt, even in laws the object of which he approved. He
says :

"What doctrines shall therefore be adjudged heresy
was left by our constitution to the determination of the eccle-
siastical judge who had herein a most arbitrary latitude al-

aThe Federalist, at pages indicated.

"2, Godwin's Political Justice, p. 289. (A. D., 1796.)

"Laws of Libel and Liberty of the Press, p. 157.




lowed him. * * * What ought to have alleviated the punish-
ment, the uncertainty of the crime, seems to have enhanced it
in those days of blind zeal and pious cruelty."

Commenting on the statute I. Eliz. c. 1 repealing forme
statutes against heresy, he says : "Thus was heresy reduced
to a greater certainty than before, though it might not have
been the worse to have defined it in terms still more precise
and particular; as a man continued still liable to be burnt for
what perhaps he did not understand to be heresy till the eccle-
siastical judge so interpreted the words of the canonical Scrip-
ture. * * * Everything is now as it should be with respect to
the spiritual cognizance, and spiritual punishment of heresy,
unless perhaps that crime ought to be more strictly defined,
and no prosecution permitted even in the ecclesiastical courts-
till the tenets in question are by proper authority previously
declared to be heretical"* 2 *

In 1884 Sir Fitz- James Stephens, of the court of King's
Bench, seems almost to agree with Carlile. In the course of
an argument for the repeal of all statutes against blasphemy,
which he refers to as "an admitted blemish in the existing
law," and as "essentially and fundamentally bad," he points
out the irreconcilable conflict in the various judicial tests of
guilt in blasphemy prosecutions, and reducing the uncertainty
of some of these to an absurdity, he describes them "as desti-
tute of that manly simplicity which ought to be the charac-
teristics of the law. There is no reason why the law should
be so indistinct." 33

Unfortunately in England there is no constitutional limita-
tion upon the power of Parliament such as would preclude
the enactment of uncertain laws. What Sir Fitz-James Ste-
phens contends for as a matter of wisdom to be acted upon by
the Parliament, in America is a constitutionally guaranteed
right, and no American judge, conscious of uncertainty in a
penal statute, can enforce it without violating his oath of office.

Edward Livingston, a U. S. Senator, Secretary of State
under Pres. Jackson, and Minister to France, reputed to be
one of the greatest American lawyers of his time, in 1822^
wrote these words: "This dreadful list of Judicial cruelties
was increased by legislation of the judges, who declared acts
which were not criminal under the letter of the law to be

w a Blackstone, Book IV., pp. 45 to 49.

"See, "Blasphemy and Blasphemous Libel," 41 Fortnightly Review, 289-S14,
March, 1884.



punishable by reason of its spirit. The statute gave the text
and the tribunals wrote the commentary in letters of blood,
and extended its penalties by the creation of constructive of-
fenses. The vague, and sometimes unintelligible, language em-
ployed in the penal statutes gave a 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 felonies, quartered for constructive
treason, and roasted alive for constructive heresies, with a pa-
tience that would be astonishing even if their written laws had
sanctioned the butchery. The -first constructive extension of a
penal statute beyond its letter is an ex post facto law, as re-

Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 37 of 43)