Theodore Albert Schroeder.

Obscene literature and constitutional law; a forensic defense of freedom of the press online

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gards the offense to which it is applied, and is an illegal as-
sumption of legislative power, so far as it establishes a rule
for further decisions. In our republic, where the different de-
partments of government are constitutionally forbidden to in-
terfere with each other's functions, the exercise of this power
would be particularly dangerous. * * * It may be proper
to observe that the fear of these consequences is not ideal, and
that the decisions of all tribunals under the common law
justify the belief that without some legislative restraint our
courts would not be more scrupulous than those of other coun-
tries in sanctioning this dangerous abuse, [p. 17-18.] It is
better that acts of an evil tendency should for a time be done
with impunity than that courts should assume legislative pow-
ers, which assumption is itself an act more injurious than any
it may purport to repress. There are therefore no construc-
tive offenses, [p. 118.] Penal laws should be written in plain
language, clearly and unequivocally expressed, that they may
neither be misunderstood or perverted. * * * The ac-
cused in all cases should be entitled to a public trial, con-
ducted by known rules/' etc. [p. H3-] 34

At the time when Livingston wrote, Puritan prudery had
scarcely made a beginning toward its legalization. Under the
common law of England before the revolution "obscenity" in
literature had been punished only when it was incidental to
treasonable or blasphemous utterances. Some American
judges, with that peculiar intellectual capacity which enables
them without research to determine historical f?cts of the past
on the mere testimony of their inner consciousness, have often
asserted the contrary, but the fact remains that prior to the

*"Report made to the General Assembly of the State of Louisiana on the
plan of a Penal Code," by Edward Livingston, at pages as indicated in the text.

3 82


Revolution there is no recorded case of punishment for an ob-
scene libel wherein the obscenity of the publication, merely as
such obscenity and dissociated from treason and blasphemy,
was ever punished. 35

Thus far we have examined the statements of those persons
without whose warfare against tyranny we would to-day enjoy
less liberty than is permitted us. We have everywhere found
that the necessity for law arises from the fact of everyday ex-
perience that frail human beings cannot lose their weakness
by receiving judicial office, and that, because of this, we must
submit to the penalties which may be determined by whim,
caprice, prejudice, moral idiosyncrasies and sentimentalism, or
even malice, unless the judge's will is always held in subjec-
tion to the same law which is designed to warn all others and
defines the conduct to be punished. We have also seen that
it was the desire to achieve this result which prompted the
demand for the English Charters of liberty, and we know the
terrible havoc which has resulted from the neglect of this re-
quirement that the criminal law should be certain. Further-
more we have seen how the judge who insisted on the charter-
rights, refused to enforce, except as to sheep, a statute penal-
izing the theft of sheep "or other cattle" because the word
"cattle" was too vague, holding that since it required judicial
legislation to make it certain it could not be "the law of the
land." It was after that construction of "law," and with it,
that we adopted our constitutions guaranteeing "due process
of law."

I therefore conclude that the historical interpretation of
the word "law" is in accord with its significance as derived
from a study of its essential nature, and that among other
qualities which must inhere in every penal statute, in the ab-
sence of which it cannot be "the law," nor constitute "due pro-
cess of law," is that of certainty in the description of the con-
duct penalized. In other words, according to the historical
interpretation of "law," "No penal law can be sustained unless
its mandates are so clearly expressed that any ordinary person
can determine in advance what he may or may not do under it,"
.and by that test all statutes against "obscene, indecent, filthy or
disgusting" literature and art, and a large number of other
statutes similarly vague, fail to constitute "due process of law."
Next we will pass to a study of the modern decisions as af-
fecting the problem under discussion.

* 5 "ObFcrne Literature under the Common Law." Albany Law Journal, May,
1907; or published in Chapter III.







Certainty Required By Modern Authorities.

The modern authorities are quite as definite as the older
ones in insisting upon absolute certainty in the definition of
that which is penalized, and we will now proceed to a
mere compilation of authoritative utterances bearing upon the
requirement of statutory certainty. Most of these quotations
are from cases construing punitive statutes. In others, how-
ever, we find the principle definitely applied to the end of de-
claring uncertain statutes to be unconstitutional. First will
be collected some of the authorities which show that the his-
torical interpretation of "law," which requires certainty in the
meaning of penal statutes before they can constitute "law," was
perpetuated by our constitutional guarantees of "due process
of law." After that will be quoted some judicial opinions
which specifically declare that the destruction of all arbitrari-
ness of courts, by the certainty of meaning in the statutory
statement of the criteria of guilt, is a prerequisite without
which penal statutes do not furnish "due process of law."

For the benefit of the lazy and the very busy man, I violate
my ideals of what a legal argument ought to be and pursue the
method of merely compiling quotations from judicial opinions,
which are deemed more or less material to the contention which
I am making. If I merely cited the opinions instead of quoting
them, I fear not many of them would be read.


In reading the following quotations it is necessary always
to bear in mind that the "settled maxims" "the principles
which were before the constitutions" "the ancient rights and



liberties of the subject," from the time of Magna Charta down,
always included the protection of those accused of crime by
insistance upon the maxim "Ubi jus incertum, ibi jus nullum"
(where the law is uncertain there is no law).

"Due process of law" means "an exercise of the powers of
government as the settled maxims of the law permit and sanc-
tion, under such safeguards as these maxims prescribe for the
class of cases to which the one in question belongs." 36

"Even in judicial proceedings we do not ascertain from the
constitution what is lawful process but we must test their
action by principles which were before the constitution and
the benefit of which we assume that the constitution was in-
tended to perpetuate." 37

"These phrases [of the Constitution] did not mean merci-
ful nor even just laws but they did mean equal and general
laws, fixed and certain. * * * The English colonies in
America were familiar with the conflict between customary
law and arbitrary prerogative and claimed the protection of
these charters. When they came to form independent gov-
ernments, they sought to guard against arbitrary and unequal
governmental action by inserting the same phrase in their
constitutions. * * * It does not follow that every statute
is 'the law of the land,' nor that every process authorized by
a legislature is 'due process of law.' " 38

"No man shall be arrested, imprisoned or exiled or de-
prived of his life, liberty or estate, but by the judgment of his
peers, or the law of the land, is so manifestly conformable to
the words of Magna Charta, that we are not to consider it as a
newly invented phrase, first used by the makers of our consti-
tution, but we are to look at it as the adoption of one of the
greatest securities of private right, handed down to us among
the liberties and privileges which our ancestors enjoyed at the
time of their emigration, and claimed to hold and retain as
their birthright. These terms, in this connection, cannot, we
think, be used in their most bold and literal senses to mean the
law of the land at the time of the trial, because the laws may
be shaped and altered by the legislature from time to time ; and
such a provision, intended to prohibit the making of any law

State v. Board of Med. Exams. 34 Minn. 387-389, Meyer's Vested Rights,
p. 196.

"Weimer v. Bunbury, 30 Mich., 301 (213) State v. Doherty, 60 Me.. 504.
"Eames v. Savage, 77 Me., 212 (220, 221), 1885; Meyer's Vested RighU,



impairing the ancient rights and liberties of the subject, would
under such a construction be wholly nugatory and void. The
legislature might simply change the law by statute, and thus
remove the landmark and barrier intended to be set up by this
provision in the bill of rights. It must therefore have intended
the ancient established law and course of legal proceedings, by
an adherence to which our ancestors in England, before the
settlement of this country, and the emigrants themselves and
their descendants, had found safety for their personal rights." 39

This would include the requirement of certainty in tests
of guilt, as laid down by Coke, Blackstone and others, as
quoted in the "Historic Interpretation of 'Law,' " and the
maxim, "where the law is uncertain there is no law."

"By 'due process of law' is meant such general and legal
forms and course of proceeding as were known either at com-
mon law or were generally recognized at the time of the
adoption of the provision." 40

"The words, 'due process of law,' were undoubtedly in-
tended to convey the same meaning as the words, 'by the law
of the land' in Magna Charta. Lord Coke in his commentary
on these words (2 Inst., 50) says they mean due process of
law. It is manifest that it was not left to the legislative power
to enact any process which might be devised. The article is a
restraint on the legislative as well as the executive and judicial
powers of the government, and cannot be so construed as to
leave Congress free to make any process 'due process of law,''
by its mere will. We must look to those settled usages and
modes of proceeding existing in the common and statute law
of England, before the emigration of our ancestors, and which
are shown not to have been unsuited to their civil and political
conditions by having been acted on by them after the settle-
ment of this country." 41

These authorities sufficiently show that the Federal and
State constitutions guaranteeing "Due Process of Law,"
adopted the conception of "Law" which requires from the law-
making power an absolute certainty in the statement of its
criteria of guilt before a penal statute is the law of the land.
This still further vindicates the historical interpretation of

"Jones v. Robbins, 8 Gray (74 Mass.), 329 (342, 843); Meyer's Vested
Rights, 195.

"Gibson v. Mason, 5 Nev., 283 (302); McCarrol v. Weeks, 5 Hayw. (Tenn.),

"Murry v. Hoboken, etc., 18 How., 272 (278), (U. S., 1855); Davidson T.
New Orleans, 96 U. S., 97 (1877).

3 86


"law" as hereinbefore made, and aids us to resurrect and re-
vivify the ancient maxim, "Where the law is uncertain there
is no law." It is hoped that thus may be destroyed all those
tyrannous laws whose meanings no one knows until after trial,
and as to which no lawyer can advise, because they are born
of a stupid moral sentimentalism, fathered by those whose
dense ignorance of the meaning of law and liberty is evidenced
in the fact that mere question-begging vituperative epithets, so
often expressing only diseased emotions, supplant the necessary
statutory definitions of that which is prohibited. Next we shall
examine the judicial utterances in so far as they may bear
upon the required certainty in statute law.


These disquisitions were primarily designed to discuss the
requirement of certainty in penal statutes. In the foregoing
essays it seemed necessary to the clarification of our thinking
to point out how and why .certainty is equally a requisite of
those statutes which seek to do something else than merely to
declare and enforce natural justice. As confirming that part
of my speculations which asserts that "law" presupposes the
abolition of all arbitrary power such as unavoidably results
from the enforcement of uncertain statutes, as well as to em-
phasize the importance of the maxim, "Where the law is un-
certain there is no law," a few opinions in civil cases will be
quoted, in which the principle of the maxim is applied to non-
penal statutes.

"It is impossible for a man to regulate his conduct by a
rule that has no existence ; it therefore follows of necessity
that laws can influence the conduct of men only after they are
made." 42

"An act may be passed and published by legislatures na-
tional, state and territorial, with all the usual formalities and
appendages, and yet be pronounced no law when put to the
judicial test. * * * Strip this act of its outside appendages,
leave it solitary and alone, is it possible for any human being
to tell by what authority the seat of Government of Washing-
ton Territory was to be removed from Olympia to Vancou-
ver?" 41 (On the implied negative the legislative act was

Davis v. Ballard, 1 Marshall (Ky.), 577.

"Seat of Government Case, 1 Wash. Ter. Rep., 128.



"The word equity in the oath administered to the special
jury is synonymous with law, and does not mean some unde-
fined and undefinable notion which the jury may entertain of
the justice of the case, but a system of jurisprudence governed
by established rules and bound down by fixed precedents. The
special jury is sworn to try the cause according to equity and
the opinion they entertain of the evidence, and not their
opinion of equity, as well as the evidence." 44

"Every duty becomes such because the law makes it so. It
is fixed and certain. Unless fixed and certain it cannot be a
duty," said in civil action for damages from negligence. 45

"Unless then the description [in an act of Congress] is so
clear and accurate as to refer to a particular patent [or un-
erringly describe the characteristics which make the book 'ob-
scene'] so as to be incapable of being applied to any other, the
mistake is fatal"**

"We cannot make the language for the law-making power,
when the means of construing the language used, in any other
than its literal and grammatical sense, is not furnished by the
act itself or unmistakably indicated by the circumstances.
* * * It [the legislative act] is void because it cannot be
ascertained from its terms, with any reasonable certainty, what
territory is assigned to Dallas County." 47

These decisions sufficiently demonstrate that as to those
civil and political statutes which create or enforce artificial
rights, it is unavoidable that we apply the old maxim, "Where
the law is uncertain there is no law," or else submit to the arbi-
trary tyranny of judicial legislation.


"The penal law is intended to regulate the conduct of peo-
ple of all grades of intelligence within the scope of responsi-
bility. It is therefore essential to its justice and humanity that
it be expressed in language which they can easily comprehend,
that it be held obligatory only in the sense in which all can
understand it, and this consideration presses with increasing
weight according to the severity of the penalty. Hence every
provision affecting any element of a criminal offense involving

"Thornton v. Lane, 11 Ga., 461-538.

Evansville St. Ry. Co. v. Meadows. IS Ind. App. Ct., 159.
'Blanchard v. Sprague, Fed. Case 1517, v. 3, p. 647, and cases.
^Bittle v. Stuart, 34 Ark., 229-232; see also, Ferrett v. Attwill, 1 Blatch-
ford, 167; Henry v. Evans, 97 Mo., 47.

3 88


life or liberty is subject to the strictest interpretation. * * *
It is the legislature, not the court, which is to define a crime
and ordain its punishment." 48

Under "Due Process of Law," Ordronaux says: "Every
enactment is not necessarily 'the law of the land/ * * *
The phrase means * * * judgment rendered under and
according to a general system of law which the community has
esablished for the protection of the civil rights of all its mem-
bers." 49

I have made no investigation of English decisions, but
chanced to run upon the following expression, which I have
thought best to preserve by inserting it here, though it will
add a little to the disorderly character of the compilation of
this chapter.

"It would be extremely wrong that a man should, by a
long train of conclusions, be reasoned into a penalty when the
express words of the act of Parliament do not authorize it." 8 *


"All must have the equal protection of the law and its in-
strumentalities. The same rule must exist for all in the same
circumstances," 51 which cannot be the same if the criterion of
guilt is uncertain, as it must be where left for judicial crea-

"Words cannot be imported into a statute for the purpose
of construing it." 62

"The office of interpretation is to bring sense out of the
words, not to bring a sense into them." 53

All the judicial "tests of obscenity" violate these rules of
construction. All such tests are in fact interpolated by un-
authorized and unconstitutional judicial legislation, and vary
according to the exigencies of each case and the moral idio-
syncracies of each judge.

"By the 'Law of the Land' is meant, not the arbitrary
edict of any body of men, not an act of assembly, though it
may have all the outward form of law, but due process of
law." 54

"Southerland, Statutory Construction, 1st Ed., pp. 438-9.
"Ordronaux's Constitutional Legislation (1891). p. 255.
Rex v. Bond, 1 B. and Aid. at page 892.

M Chic., St. L. & R. v. Moss, 60 Miss., 641, (647); Pearson v. Portland, 69
Me., 278.

* 2 State v. Payne, 29 Pac. Rep., 787.

"McClusky v. Cromwell, 11 N. Y. (1 Kern), 593, (602).

"Palairet's Appeal, 67 Penn. St, 479, (486); Meyer's Vested Rights, 1M.



"The rights of every individual must stand or fall by the
same rule of law that governs every other member of the com-
munity under similar circumstances, and every partial or pri-
vate law which directly proposes to destroy or affect individual
rights, or does the same thing by affording remedies leading to
similar consequences, is void." 65

"Under the requirement of due process of law, the law
must provide some just form or mode in which the duty of the
citizen shall be determined before he can be visited with a
penalty for non-performance of an alleged duty" 58 ; which is
not done if criteria of guilt are left uncertain, and consequently
to be supplied by the court.

''Due process of law is a general expression and is equiva-
lent to the 'law of the land.' It permits the deprivation of life,
liberty or property according to law, not otherwise. It shields
such right from arbitrary power. Due process of law, in a
[criminal] case like this, requires a law describing the offense.
The definition of the offense, and the authority for every step
of the trial, must be found in the law of the land. Nothing
essential can emanate from arbitrary power." 87

"These uncertainties [arising from a statute] as to whether
a man would be subject to fine or imprisonment, are not the
qualities of law, but rather the qualities of anarchy. * * *
That laws shall exist which are not plainly in exact words
prescribed, so that an individual may know them, which are
not passed by the deliberation of the three legislative depart-
ments, each member in each branch sworn to exercise his best
judgment for the people upon his own responsibility, is directly
opposed to every principle of the American or any [other]
good government." 68

The judicially prescribed and ever varying "tests of ob-
scenity" never had the indorsement of any branch of any legis-

"The clause 'law of the land' was defined in our earlier
cases to mean 'a general and public law, equally binding upon
every member of the community,' but by our later cases it is

"Wally's Heirs v. Kennedy, 2 Yerg., 554, (555); Bank of the State v.
Cooper, 2 Yerg., 599.

"Philadelphia v. Scott, 81 Penn. St., 80, (90); Craig v. Kline, 65 Penn.
St., 899.

"State \. Bates, 14 Utah, 293, (300).

"Thornton v. Ter. of Wash., 8 Wash. Ter. Rep., 488, (494).



defined to mean a law 'which embraces all persons who are or
may come into like situation and circumstances. ' " B9

If the criteria of guilt are left for judicial creation the law
does not uniformly embrace all persons who may come into
like situation.

"It is obvious there can be no certain remedy in the laws
where the legislature [or courts in criminal cases] may pre-
scribe one rule for one suitor or a class of suitors in the courts,
and another for all others under like circumstances, or may
discriminate between parties to the same suit." 6 *

The city council of Hagerstown, Md., had been authorized
to pass ordinances "to prevent nuisances and to regulate and
control offensive trades" and passed an ordinance prohibit-
ing the herding and keeping of domestic animals "without
permit therefore first had and obtained from the mayor and
council," but no general rules were prescribed which would
control the granting of such permits. The defendant was
arrested for violating the ordinance. The ordinance was at-
tacked among other reasons for this, that "it places unreason-
able, arbitrary, and oppressive power in the hand of the mayor
and council."

The court said : "In re Christensen (C. C.) 43 Fed. 243, it
is said : 'The fact that it permits arbitrary discriminations and
abuses in its execution, depending upon no conditions or quali-
fications whatever other than the unregulated arbitrary will of
certain designated persons, is the touch-stone by which its
validity is to be tested.' In Cicero Lumber Co. v. Cicero, 176
111. 9, 51 N. E. 758, 42 L. R. A. 705,68 Am. St. Rep. 155, in a
well considered case, says : 'The ordinance in so far as it in-
vests the Board of Trustees with the discretion here indicated
is unreasonable. It prohibits that which is in itself and as a
general thing lawful and leaves the power of permitting or
forbidding the use of traffic teams upon the boulevards to an
unregulated official discretion when the whole matter should
be regulated by permanent local provisions operating generally
and impartially. * * * The ordinance in no way regulates
or controls the discretion thereby vested in the Board. It pre-
scribes no conditions upon which the special permission of the
Board is to be granted. Thus the Board is clothed with the

59 Stratton Claim v. Morris Claim, 89 Tenn. 521, cases; Harbison v. Knox-
ville Iron Co., 103 Tenn., 434.

ODurkee v. Janesville, 28 Wise., 464, (471).



right to grant the privilege to some and to deny it to others.
Ordinances which thus invest a city council or board of trustees
with a discretion which is purely arbitrary and which may be
exercised in the interest of a favorite few, are unreasonable
and invalid. The ordinance should have established a rule by
which its impartial enforcement could be secured.' " 61

"We hold the ordinance here in question to be invalid and
contrary to law." 82

"It has been wisely and aptly said that this is a government
of laws and not of men; that there is no arbitrary power lo-
cated in any individual or body of individuals; but that all in
authority are guided and limited by those provisions which the
people have, through the organic law, declared shall be the
measure and scope of all control exercised over them." 83


"A court is not however permitted to arrive at this [Legis-
lative] intention by mere conjecture, but it is to collect it from
the object which the Legislature had in view and the expres-
sions used, which should be competent and proper to apprise

Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 38 of 43)