Theodore Albert Schroeder.

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

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the community at large of the rule which it is intended to
prescribe for their government. For although ignorance of
the existence of a law be no excuse for its violation, yet if this
ignorance be the consequence of an ambiguous or obscure
phraseology, some indulgence is due to it. It should be a prin-
ciple of every criminal code, and certainly belongs to ours, that
no person be adjudged guilty of an offense unless it be created
and promulgated in terms which leave no reasonable doubt of
their meaning. * * * A court has no option where any
considerable ambiguity arises on a penal statute, but is bound
to decide in favor of the party accused. 'It is more consonant
with the principles of Liberty/ says an eminent English judge,
'that a court should acquit when the Legislature intended to
punish, than that it should punish when it was the intent to
discharge with impunity.' If no sense can be discovered in
them [the words used in the statute] as they are here intro-
duced, the court had better pass them by as unintelligible and
useless than to put on them, at great uncertainty, a very harsh

"Citing Mayor v. Radecke, 49 Md. 280, 33 Am. Rep. 239; Bostock T. Sams,
95 Md. 400, 52 Atl. 655, 59 L. R. A. 282, 93 A. S. R. 394; Cov. Stockyards v.
Keith, 139 U. S. 128, 11 Sup. Ct. 461, 85 L. Ed. 73; Crowley r. Christensen, 187
U. S. 89, 11 Sup. Ct. 18, 34 L. Ed. 620.

w Mayor, et al. v. B. & O. R. Co., 68 Atl. Rep. 490.




signification and one which the Legislature may never have
designed." 64

Here we may adapt to new uses the words of Chief Justice
Best, in Fletcher v. Lord, Sondes, 3 Bing., 580. He says: "If
this rule is violated, the fate of the accused person is decided
by the arbitrary discretion of judges and not by the express
authority of the laws." Also: "The courts have no power
to create offenses but if by a latitudinarian construction they
construe cases not provided for to be within legislative enact-
ment, it is manifest that the safety and liberty of the citizen
are put in peril, and that the legislative domain has been in-
vaded. * * * The doctrine is fundamental in English and
American lazv that there can be no constructive offenses; that
before a man can be punished, his case must be plainly and
unmistakably within the statute; that if there be any fair doubt
whether the statute embraces it, that doubt is to be resolved in
favor of the accused. These principles admit of no dispute,
and often have been declared by the highest courts, and by no
tribunal more clearly than the supreme court of the United
States." 65

''Such an interpretation is not to be adopted, to give effect
to particular words, which will require on the part of the court
the introduction of new provisions and auxiliary clauses, which
the statute neither points out nor even hints at, and yet which
are indispensable to make such interpretation serviceable or
practicable." 86

The rule of this last decision is violated by every one of the
judicial "tests of obscenity."

"Penal statutes cannot be extended beyond the OBVIOUS
meaning of their terms on any plea of failure of justice." 67

"Statutes creating crimes will not be extended by judicial
interpretation to cases not plainly and unmistakably within
their terms. If this rule is lost sight of the courts may hold an
act to be a crime when the Legislature never so intended.
* * * The sense of indignation against such vocation or
conduct should not permit a violation by the courts of estab-
lished rules of law, or an unlawful exercise of jurisdiction." 68

"The words 'by law' in section 967 [U. S. Stat.] are em-

"Enterprize, Fed. Case No. 4499, Vol. 8, pp. 734-5.
M U. S. v. Clayton, Fed. Cas. No. 14814, Vol. 25, p. 480.
"U. S. v. Bassett, v. 24, Fed. Cases p. 1034, No. 14589.
"U. S. v. Garretson, 42 Fed. R., 25.
"U. S. T. Whittier, Fed. Case No. 16888.



phatic and refer in my judgment to a fixed rule in respect to
time and manner, and not to a discretionary power vested by
statute in a state court." 69

Uncertainty arising from absence of specific standards of
judgment necessarily involves the exercise of discretionary
power in determining what shall be the essence of guilt.

"A citizen desiring to obey the laws would search the acts
of Congress in vain to find that grazing sheep upon a forest
reserve without the permit of the Secretary of Agriculture, is
a criminal offense. It has been suggested that the acts under
which the indictment is drawn give notice that the Secretary
may make rules and regulations, and the search would not be
complete and the inquiry concluded until it be ascertained
whether he has made such rules and regulations, the violation
of which it is expressly declared shall be a criminal offense
But here we are led back to a delegation of legislative power
The rules prescribed by the heads of the departments are not
necessarily promulgated. While they may be procured, they
are not as easily available as are statutes of the United States ;
nor does our system contemplate an examination of those rules
for the ascertainment of that which may or may not be a
crime, for the right to prohibit a given thing under penalty,
belongs to Congress alone. * * * It cannot authorize any
other branch of the government [not even the courts] to define
that which is purely legislative, and that is purely legislative
which defines rights, permits things to be done, or prohibits
the doing thereof:"

"In order to constitute a crime, the act must be one which
the party is able to know in advance whether it is criminal or
not. The criminality of an act cannot depend upon whether a
jury may think it reasonable or unreasonable. There must be
some definiteness and certainty." 71

How can any man know in advance from a mere reading
of the statute by what "test of obscenity" the judge or jury
may determine the guilt or innocence of his conduct in circu-
lating a book or picture? Of course he can't know and there-
fore such laws cannot constitute "Due Process of Law."

"No penal law can be sustained unless its mandates are
so clearly expressed that any ordinary person can determine in

"Meyers v. Tyson, Fed. Case 9995-13 Blatch, 242.

TO U. S. v. Mathews, 146 Fed. Rep. 308; U. S. v. Eaton, 144 U. S., 887.

"Tozer v. U. S., 52 Fed. Rep., 919.



advance what he may and what he may not do under it. [citing
authorities] Lieb. Herm. 156. In this the author quotes the
Chinese Penal Code which reads as follows : 'Whoever is guilty
of improper conduct and of such as is contrary to the spirit of
the laws, though not a breach of any specific part of it, shall
be punished at least forty blows, and when the impropriety is
of a serious nature, with eighty blows' There is very little
difference between such a statute and one which would make
it a criminal offense to chage more than a reasonable rate." 71 *

"But to punish a man for the non-performance of a duty,
it is not sufficient that the law impliedly requires him to do
the act. The statute must be clear and explicit in its terms, in
defining that duty, in order that he may know what he is
called upon to do. and what it is his duty to avoid.'' 72


The Supreme Court of the United States whenever called
upon to express an opinion upon the subject has been uniformly
insistent upon the requirement of certainty in the statutory
definition of crimes.

"There can be no constructive offenses." 71

"It is axiomatic that statutes creating and defining crimes
cannot be extended by intendment, and that no act, however
wrongful, can be punished under such a statute unless clearly
within its terms." 74

Chief Justice Marshall said this:

"The rule that penal laws are to be construed strictly,
is perhaps not much less old than construction itself. It is
founded on the tenderness of the law for the rights of the
individuals ; and on the plain principle that the power of
punishment is vested in the legislative, not in the judicial de-
partment. It is the legislature, not the court, which is to define
a crime, and ordain its punishment. ... To determine
that a case is within the intention of a statute its language
must authorize us to say so. It would be dangerous, indeed,
to carry the principle that a case which is within the mischief
of a statute, is within its provisions so far as to punish a
crime not enumerated in the statute, because it is of equal
atrocity, or of kindred character, with those which are enu-

"aChic. etc. Ry. Co. v. Dey 35 Fed. Rep. 866-867.
T2 U. S. v. Dwyer, 56 Fed. Rep. 468.
T8 U. S. v. Lacher, 134 U. S. 628.
T Todd v. U. S., 158 U. S. 282.



merated. If this principle has ever been recognized in ex-
pounding criminal law, it has been in cases of considerable
irritation which it would be unsafe to consider as precedents
forming a general rule for other cases. 76

Before this the Supreme Court had said : "The effect of
the provision [requiring Due Process of Law] is to secure the
individual from the arbitrary exercise of the powers of govern-
ment." 76

"If the language is clear it is conclusive. There can be no
construction where there is nothing to construe. The words
must not be narrowed to the exclusion of what the legislature
intended to embrace, and they must be such as to leave no
reasonable doubt upon the subject."' 1 ' 1

"Laws which prohibit the doing of things, and provide a
punishment for their violation, should have no double meaning.
A citizen should not unnecessarily be placed where, by an honest
error in the construction of a penal statute, he may be sub-
jected to a prosecution for a false oath, and an inspector of
elections should not be put in jeopardy because he, with equal
honesty, entertains an opposite opinion. . // the legis-

lature undertakes to define by statute a new offense and pro-
vide for its punishment, it should express its will in language
that need not deceive the common mind. Every man should be
able to knozv with certainty when he is committing a crime.
. . . It would certainly be dangerous if the legislature could
set a net large enough to catch all possible offenders and leave
it to the court to step inside and say who could be rightfully
detained, and who should be set at large. This would to some
extent substitute the Judicial for the legislative department of
the government.'" 19

"When we consider the nature and theory of our govern-
ment, the principles upon which they are supposed to rest,
and review the history of their development, we are con-
strained to conclude that they do not mean to leave room for
the play and action of purely arbitrary power" ; such as must
result if the statute leaves the test of criminality uncertain.

"No language is more worthy of frequent and thoughtful

*U. S. v. Wiltberger, 5 Wheat. 95; see also Ferrett v. Atwill, 1 Blatch-
ford 157.

"Bank of Columbia v. Oakley, 4 Wheat. 2S5 (244), Meyer's Vested
Rights 196.

"U. S. v. Hartwell, 78 U. S. (6 Wall) 896.

W U. S. v. Reese 92 U. S. 219-221.

"Yick Wo, v. Hopkins, 118 U. S. 856-359.



consideration than these [foregoing] words of Mr. Justice
Mathews." 80

"The words 'due process of law' come to us from England,
and their requirements were there designed to secure the sub-
ject against the arbitrary action of the crown and place him
under the protection of the law. ... In this country the
requirements are intended to have a similar effect against legis-
lative power, that is, to secure the citizen against any arbitrary
deprivation of his rights whether relating to his life, his
liberty or his property. . . . The great purpose of the re-
quirements is to exclude everything that is arbitrary and ca-
pricious in legislation affecting the rights of the citizens."* 1

"Lazvs which create crime ought to be so explicit that all
men subject to their penalties may know what acts it is their
duty to avoid. U. S. v. Sharp, Pet. C. C. 118, Fed. Case No.

"In the administration of the criminal justice no rule can
be applied to one class which is not applicable to all other
classes" 88 ; which is not insured if the tests of criminality are
of judicial creation.

"It is all important that a criminal statute should define
clearly the offense which it purports to punish, and that when
so defined it should be within the limits of the power of the
legislative body enacting it." 84


Perhaps the lengthiest statement concerning the require-
ment of certainty in a criminal statute is made by the Court of
Appeals of Kentucky, in declaring unconstitutional a statute
penalizing transportation companies for* charging more than
a just and reasonable rate of toll for the transportation of
passengers and of freight. In that case the court among other
things said this :

"That this statute leaves uncertain what shall be deemed a
'just and reasonable rate of toll or compensation,' cannot be
denied ; and that different juries might reach different conclu-
sions, on the same testimony, as to whether or not an offense

Gulf C. & S. Fe. Ry. v. Ellis, 165 U. S. 159.

81 Dent v. West Virginia, 129 U. S. 114; s. c. Meyer's Vested Rights, 195;
Millett v. People, 117 111. 294. (1886).

HJ. S. v. Brewer, 139 U. S. 288, 11 Sup. Ct. Rep. 638; U. S. T. New
Bedford Bridge Co., Fed. Case No. 15867.

"Gibson v. Mississippi, 162 U. S. 591.

"James v. Bowman, 190 U. S. 127.



has been committed, must also be conceded. The criminality
of the carrier's act, therefore, depends on the jury's view of the
reasonableness of the rate charged, and this latter depends on
many uncertain and complicated elements. That the corpora-
tion has fixed a rate which it considers will bring it only a fair
return for its investment does not alter the nature of the act.
Under this statute it is still a crime, though it cannot be known
to be such until after an investigation by a jury, and then only
in that particular case, as another jury may take a different
view, and, holding the rate reasonable, find the same act not
to constitute an offense. There is no standard whatever fixed
by the statute, or attempted to be fixed, by which the carrier
may regulate its conduct. And it seems clear to us to be utterly
repugnant to our system of laws to punish a person for an act,
the criminality of which depends, not on any standard erected
by the law, which may be known in advance, but on one erected
by a jury; and especially so, as that standard must be as
variable and uncertain as the views of different juries may
suggest, and as to which nothing can be known until after the
commission of the crime.

"If the infliction of the penalties prescribed by the statute
would not be the taking of property without due process of
law, and in violation of both state and federal constitutions,
we are not able to comprehend the force of our organic laws.
In Louisville & N. R. Co. v. Railroad Commission of Ten-
nessee, 1 6 Am. & Eng. r. Cas. 15, a statute very similar to
the one under consideration was thus disposed of by the
learned judge (Baxter) : 'Penalties cannot be thus inflicted at
the discretion of a jury. Before the property of a citizen,
natural or corporate, can be thus confiscated, the crime for
which the penalty is inflicted must be defined by the law-
making power. The legislature cannot delegate this power to
a jury. If it can declare it a criminal act for a railroad cor-
poration to take more than a 'fair and just return' on its
investments, it must, in order to the validity of the law, define
with reasonable certainty what would constitute such 'fair and
just return.' The act under review does not do this, but
leaves it to the jury to supply the omission. No railroad
company can possibly anticipate what view a jury may take of
the matter, and hence cannot know, in advance of a verdict,
whether its charges are lawful or unlawful. One jury may
convict for a charge made on a basis of 4 per. cent., while



another might acquit an accused who had demanded and re-
ceived at the rate of 6 per cent., rendering the statute, in its
practical working, as unequal and unjust in its operation as it
is indefinite in its terms/ The Supreme Court of the United
States, in Railroad Commission Cases 116 U. S. 336, 6 Sup.
Ct. 334, 348, 388, 391, 1191, refers to this Tennessee case, and
substantially approves it by distinguishing the case then before
the court from the Tennessee case. This case is also used
to support the text in 8 Am. & Eng. Enc. Law, p. 935, where
it is said: 'Although a statute has been held to be unconsti-
tutional which left it to the jury to determine whether or not a
charge was excessive and unreasonable, in order to ascertain
whether a penalty is recoverable, yet where the action is merely
for recovery of the illegal excess over reasonable rates, this
is a question which is a proper one for a jury.' Mr. Justice
Brewer, in the case of Railway Co. v. Dey, 35 Fed. 866, had
under consideration the provision of a statute similar to the
one we have before us, and, while the statute was upheld, it
was only because there was a schedule of rates provided in
the act which rendered the test of reasonableness definite and
certain. The learned judge there said : 'Now the contention of
complainants is that the substance of these provisions is that,
if a railroad company charges an unreasonable rate, it shall
be deemed a criminal, and punished by fine, and that such a
statute is too indefinite and uncertain, no man being able to tell
in advance what in fact is, or what any jury will find to be,
a reasonable charge. If this were the construction to be placed
upon this act as a whole, it would certainly be obnoxious to
complainant's criticisms, for no penal law can be sustained
unless its mandates are so clearly expressed that any ordinary
person can determine in advance what he may and what he
may not do under it. In Dwar. St. 652, it is laid down that it
is impossible to dissent from the doctrine of Lord Coke that
'acts of Parliament ought to be plainly and clearly, and not
cunningly and darkly, penned, especially in legal matters.'
See also U. S. v. Sharp, Pet., C. C. 122. Fed. Cas. 16, 264;
The Enterprise, i Paine, 34, Fed. Cas. No. 4, 499 ; Bish. St.
Crimes 41 ; Lieb. Herm. 156. And the learned judge concludes
there is very little difference between a provision of the Chinese
Code, which prescribed a penalty against any one Who should
be guilty of 'improper conduct/ and a statute which makes it



a criminal offense to charge more than a reasonable rate.
The same learned judge discussing the kindred subject of un-
reasonable difference in rates in Tozar v. U. S. 52 Fed. 917,
said : 'But, in order to constitute a crime, the act must be one
which the party is able to know in advance whether it is crimi-
nal or not. The criminality of an act cannot depend upon
whether a jury may think it reasonable or unreasonable. There
must be some definiteness and certainty. When we look on
the other side of the question, we find the contention of the
State supported by neither reason or authority. No case can
be found, we believe, where such indefinite legislation has been
upheld by any court when a crime is sought to be imputed to
the accused. In the case from 77 111. the court said : That sec-
tion, by itself, makes the offense to consist in taking more
than a fair and reasonable rate of toll and compensation, with-
out reference to any standard of what is fair and reasonable.
In such case it may be seen different persons have different
opinions as to what is a fair and reasonable rate. Courts and
juries, too, would differ, and at one time or place a defendant
might be convicted and fined in a large amount for the same
act which in another place or at another time, would be held
to be no breach of the law, and what might be thought a fair
and reasonable rate on one road might be thought otherwise
upon another road. There would be no certainty of being
able to comply with the law. A railroad corporation, with the
purpose of conforming to the law, might fix its rates at what it
believed to be reasonable, and yet be subjected to the heavy
penalties here prescribed. The statute furnishes evidence that
it did not intend to leave the railroad in this state of uncertainty
and danger, and exposed to such seeming injustice. The
eighth section provides how reasonable rates shall be ascer-
tained, what they shall be, and that the railroad and warehouse
commissioners for each of the railroad corporations in the State
a schedule of reasonable maxinr'-n rates thus furnishing a uni-
form rule for the guidance of the railroad companies. These
authorities and the argument abundantly supporting them are

"Other objections to the judgment below need not be dis-
cussed, as the one noted is fatal, and the statute cannot be en-
forced as a penal statute." 85

In the aggregate the foregoing authorities prove and dem-

Louisville & N. R. Co. v. Commonwealth, 36 S. W. Rep. 129-131.



onstrate that though often neglected, the ancient maxim "Ubi
jus incertum, ibi jus nullum" (Where the law is uncertain, there
is no law), is still a fundamental part of our jurisprudence,
and that in consequence all uncertain penal statutes are uncon-
stitutional because not constituting "due process of law."

Since the foregoing essays were first published by me,
several cases have been decided or come to my notice which
are more or less related to the principle for which contention
is herein made. These cases are cited in the 7


Junkins vs. State, 10 Ind. 145 (A. D. 1858).






PART V. The Synthesis and the Application*

In the foregoing chapters, I justified with considerable
elaboration the proposition that in the United States no man
can be punished for mere constructive offenses.

I have gone further and have attempted to formulate a
statement of the nature of law as viewed in the scientific as-
pect, in contradistinction to that arbitrary power which pun-
ishes constructive offenses, and I have undertaken to make
a comprehensive discussion as to what is a constructive of-
fense in relation to "due process of law." Here I shall un-
dertake only to summarize those conclusions, already justified in
various ways, and apply them to our laws against "obscene"
literature and art.


Constructive offenses naturally divide into two general
classes. In the first of these the more direct responsibility for
the prohibited construction rests with the courts, and arises
from the judicial engraftments made upon legislative enact-
ments, while the second class includes those where the more
direct responsibility for the evil primarily rests with the legis-
lature for having attempted to construct a wrong, by penal-
izing conduct not in itself injurious nor of injurious tenden-
cies according to any known laws of the physical universe.
These two general classes of constructive crime readily lend
themselves to a further subdivision according to the various
conditions which conduce to such baneful punishments for
mere constructive wrongs. These different sources of such
error will now be pointed out with a little more system and
elaboration, and it is believed that the following statements
are justified by, and generalize all, that is included in the dis-

Revised from The Central Law Journal, Dec. 18th,1908. j



cussion and the authorities cited in the several chapters on
"due process of law."


The first class of constructive offenses is best understood.
Here the act under investigation is one which under any of
the tests prescribed hereafter, may properly be penalized, but
it is not within the plain letter of the prohibitive statute be-
cause the statutory tests of criminality, though certain in
meaning and covering acts of the same general character, man-
ifestly do not specifically include the conduct under investiga-

Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 39 of 43)