Theodore Albert Schroeder.

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

. (page 4 of 43)
Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 4 of 43)
Font size
QR-code for this ebook

homo iniquus et celeratus ac nequiter machinans et intendens
bonos mores subdito^um hujus regni corrumpere, et eos ad nc-
quitiam inducere, quendam turpem iniquum et obscaenum libel-
lum intitulat (Venus in the cloister, or the nun in her smock)
impio et nequiter impresset et publicavit ac imprimit et publican
causavit (setting out the several lewd passages) in malum ex-
emplum" etc.

The defendant was found guilty, and a motion made in ar-
rest of judgment. For the motion Mr. Marsh argued: "The
defendant may be punishable for this in the spiritual court as
an offense contra bonos mores, yet it cannot be libel for which
he is punishable in the temporal courts. In the case de libellis
famosis my Lord Coke says that it must be against the public,
or some private person, to be a libel ; and I don't remember
ever to have heard this opinion contradicted. Whatever tends
to corrupt the morals of the people, ought to be censored in
the spiritual court, to which, properly, all such causes belong.
I don't find any case wherein they were prohibited in such a
cause; in the reign of King Charles the Second there was a
filthy run of obscene writings, for which we meet with no
prosecution in the temporal courts."

The Attorney-General admitted that there was no precedent
for this conviction. He argued: "Peace includes good order
and government, and that peace may be broken in many in-
stances without actual force : i, if it be an act against the con-
stitution or civil order ; 2, if it be against religion ; 3, if it be
against morality."

Under the third head the Attorney-General argued as fol-
lows : "As to Morality, destroying that is destroying the peace
or government, for government is no more than public order,

Qeen v. Read. 11 Modern Reports, case No. 205.



which is morality. My Lord Chief Justice Hale used to say
Christianity is a part of the law, and why not morality, too ?

"I do not insist that every immoral act is indictable but
if it is destructive of morality in general, if it does or may ef-
fect the king's subjects, it then is an offense of a public nature.
And upon this distinction it is that particular acts of fornica-
tion are not punishable in the temporal courts and bawdy
houses are. In Sir Charles Sedley's case it was said, that this
court is the custos morum of the king's subjects, and upon this
foundation there have been many prosecutions against the
players for obscene plays, though they have had interest
enough to have the proceedings stayed before judgment."

The chief justice said he would convict were it not for the
decision in Queen v. Read. "If it tends to disturb the civil or-
der of society I think it is a temporal offense." Justice For-
tesque said : "I own it is a great offense, but I know of no law
by which we can punish it. Common law is common usage,
and where there is no law there can be no transgression. At
the common law drunkenness, or cursing and swearing, were
not punishable.; and yet I do not find the spiritual courts took
notice of it. This is but a general solicitation of chastity and
not indictable. Lady Purbeck's case was for procuring men
and women to meet at her house, and held not indictable un-
less there had been particular facts to make it a bawdy house.
To make it indictable there should be a breach of the peace
or something tending to it, of which there is nothing in this
case. Libel is a technical word at common law, and I must
own the case of the Queen v. Read sticks with me, for there
was a rule to arrest the judgment nisi. And in Sir Charles
Sedley's case there was a force in throwing out bottles upon
the people's heads."

After the second continuance, Chief Justice Fortesque hav-
ing in the meantime retired from the bench, the reporter adds :

"In two or three days they gave it as a unanimous opin-
ion that this was a temporal offense. . . . They said if
Read's case was to be adjudged they should rule it otherwise."
No reasoning is given or precedent cited. 4

In the earlier report of this same case we find a different
and better statement of the reasons for the decision. It is in
these words:

"After solemn deliberation, the court held it to be an of-
fense properly within its jurisdiction ; for they said that reli-

4 Rex v Curl. 2 Strange Rep. 789.



gion was part of the common law ; and therefore whatever is an
offense against that is evidently an offense against the common
law. Now morality is the fundamental part of religion, and
therefore whatever strikes against that, must, for the same
reason, be an offense against the common law. The case of
King and Taylor, i Ventris, 293, is to this very point." 5

The case of King and Taylor, cited by the court, was a case
of obscene blasphemy for calling Jesus Christ a bastard, and
a whore-master, and declaring all religion a cheat. It is evi-
dent, therefore, morality is used only in the sense of religious
morality, especially since no scientific ethics had yet come
into existence.

It is evident from the authority cited, and from the judicial
language, "morality is the fundamental part of religion," and
from the title of the book, "Venus in the cloister or the Nun in
her smock," that the court had no occasion or thought to penal-
ize obscenity in literature as obscenity, and when it did not
discredit the established religion or its servants, nor was of a
seditious nature, nor concerning an individual so as to provoke
a breach of the peace.

Subsequent authorities show that the foregoing analysis is
correct, since no other interpretation of King v. Curl can be
made to harmonize with subsequent judicial action.

The next reported case was decided in 1733. This decision
clearly shows a healthy mindedness which now is scarce among
us, and confirms the conclusion that Curl's case was decided
on the impiety of the offending book, and not because of its
obscenity as such. The report in the Gallard case reads as
follows :

"Indictment contra bona mores, for running in the common
way, naked down to the waist, the defendant being a woman.
S. moved to quash, because the fact is not indictable. F. contra :
Indictment will lie contra bonas mores as against Curl for pub-
lishing an obscene book, i Sid. 168, Sir Chas. Sedley's (Sed-
ley's) case, i Keb. 620. Quia immodests and irreverentas, be-
haved himself in church. Another indictment was for printing
Rochester's poems: Sed. per Curl. The indictment must be
quashed, for nothing appears immodest or unlawful." 6

The next case of "obscene and impious libel" was against
the notorious and stormy John Wilkes in 1768. He fled the
country and was outlawed without contest, and in the subse-

"King v. Curl, Barnardiston's Report 29 (A. D. 1744).
'King v. Gallard, W. Kelynge, p. 163.



quent proceedings only technical questions of procedure were
considered. It seems that several of his publications gave
offense, though the name of but one is furnished us, "An Essay
on Woman." This is a bawdy poem, in which the name of
the deity is impiously interwoven with its description of las-
civious joys. The pamphlet closed with another bawdy en-
titled "The Maid's Prayer," and addressed to "The propitious
God of Love."

The report informs us that "Mr. Wilke's counsel and agent
making no objection thereto declining to enter into his de-
fense, verdicts were found against him," and he was outlawed.
Later he came into court, and, on technical grounds, moved to
vacate the judgment, and "with a written speech to justify the
crimes." The outlawry was reversed upon technical defects in
the papers, but the conviction was undisturbed, only technical
questions of procedure being considered by the King's bench.
In the record of Wilke's sentence only these few words en-
lighten us as to the reason for the conviction: "Being con-
victed of certain trespasses, contempts and grand misde-
meanors, in printing and publishing an obscene and impious
libel, entitled 'An Essay on Woman' and other impious libels,
etc." 7

Especially in view of Wilke's turbulent career and the
stormy times which surrounded this trial, the judgment entered
by default can not properly be said to be of much weight as
an authority. Yet it was designated an "impious libel," as well
as obscene, ^nd therefore is in harmony with our theory that it
required something more than mere obscenity to make a pub-
lication criminal at common law.

These are the only decisions on obscenity prior to the sep-
aration of the American colonies, and therefore the only ones
which became a part of the common law of America. Fur-
thermore they demonstrate that "obscenity," merely as such,
was not a criminal offense. To make it punishable it must be
of that personal and specific character (against a living per-
son) such as tended to disturb the peace, or else it must be
interwoven with impiety such as tended to discredit the estab-
lished religion or government.

To make it still more clear that the English common law,
before the Revolution, never punished "obscene libels," as
such, that is, where unconnected with blasphemy or seditious
tendencies, we may profitably review a few of the English

T Rex v. John Wilkes, 4 Burrows, 2527-2575.



authorities immediately following the American Revolution.
The first of such cases, King v. Tophan, decided January,
1791, was a case of libel on the memory of Earl Cowper,
which had been published in a newspaper. The indictment
charged that defendant had accused the Earl of having "led
a wicked and profligate course of life, and had addicted him-
self to the practice and use of the most criminal and unmanly
vices and debaucheries on," etc., "at," etc., "to the evil exam-
ple," etc., "and against the peace."

Now, to publish accounts of such "unmanly vices" would
almost certainly be adjudged "obscene " and had it been so
considered in 1791 the defendant would in this case have been
convicted. Lord Kenyon, in his opinion, quoted with approval
I Hawkins Pleas of the Crown as follows : "The chief cause
for which the law so severely punishes all offenses of this
nature [libels] is the direct tendency of them to a breach of the
public peace, by provoking the parties injured, and their
friends and families to acts of revenge." (Citing i Haw. P.
. C, chap. 73, sec. 3.) The court continues: "Now to say, in
general, that the conduct of a dead person can at no time be
canvassed ; to hold that even after ages are passed, the conduct
of bad men cannot be contrasted with the good, would be to
exclude the most useful part of history." It was accordingly
held that the indictment stated no offense, or, in other words,
to publish of a dead person accounts of "unmanly vices and
debaucheries" was not a libel, either obscene or otherwise. 8

The analysis of all the cases on obscenity that were re-
ported in England before the- American Revolution, as well as
those authorities that came into existence immediately after,
are conclusive upon the point, that mere "obscenity," as such,
was not a common law crime before the Revolution, and,
therefore, never became a common law crime in America, al-
though I believe some courts, on a superficial and uncritical
view, have held otherwise.

That in the Curl case it was the irreligious tendency of
the book which made it criminal and not the bawdy character
thereof, is further shown by the law writers of the time.

"The mere speculative wantonness of a licentious imagina-
tion, however dangerous, or even sanguinary, in its object, can
in no case amount to a crime. It is a passion inseparable from
the essence of the human mind to delight in the fiction of that
the actual existence of which would please." 9

8 Rex v. Topham, 4 Term Rep. 129.

Lord Auckland's Principles of Penal Law, p. 84, Lend., 1771.



With knowledge of, and in spite of the decision in King v.
Curl, Hawkins, in his "Pleas of the Crown," thus states the
common law on the subject: "However, it seems clear, that
no writing whatsoever is to be esteemed a libel, unless it re-
flects upon some particular person ; and it seems that a writing
full of obscene ribaldry, without any kind of reflection upon
anyone, is not punishable, as I have heard it agreed in the
court of King's bench " i()

In 1809 we come to the first English case wherein our
modern puritanical conception of modesty finds recognition.
The indictment was for exposing the naked person by bathing
in the sight of homes. A verdict of guilty was followed by
an appeal, and the Court of King's Bench left this report of
its conclusion: "As this is the first prosecution of this sort
in modern times, they [the judges] consented to his being
discharged." 11

As a further confirmation of our conclusion that the com-
mon law of England and America knew of no such crime as
circulating obscene literature except when it was of the particu-
lar kind which directly discredited religion, we may point to
the law-book writers of the time, who uniformly classified it
as an offense against God, not at all as one of any other direct
consequences to the civil order.

With the creation of our secular commonwealths, wherein
a union of church and state is forbidden, our constitutions
have repealed all common law offenses against God. Writers
such as Blackstone make no mention of such an offense ex-
cept as an offense against God.

This little review, which I think covers all the reported
cases bearing upon the common law against obscenity, shows
conclusively that it is an error to claim, as often is done, that
obscenity in our modern sense was an offense at common law.

If any further proof was necessary to show the relative
indifference to so-called obscenity as such, we may find it in
the statement of Erskine in his argument in the case of Thomas
Carnau. He said : "I should really have been glad to have cited
some sentences from the one hundred and thirteenth edition
of Poor Robin's Almanack, published under the revision of the
Archbishop of Canterbury, and the Bishop of London, but I
am prevented from doing it by a just respect for the house.
Indeed, I know of no house but a brothel that could suffer

10 Hawkins' Pleas of the Crown, vol. 2, p. 130, Seventh Ed. 1795.
"Rex v. Cruden, 2 Campbell, 89.



the quotation. The worst of Rochester is ladies' reading when
compared with them. . . . When ignorance, nonsense and
obscenity, are thus fostered under the protection of a royal
patent, how must they thrive under the wide spreading foster-
ing wings of an act of Parliament." 12

If still more proof is desired we have it in the literature
of pre-r evolutionary times. When, in 1888, Vizetelly, a cele-
brated English publisher, was arrested for "obscenity" in the
vending of Zola's novels, he published a unique defense. After
exposing and denouncing the falsehood published to arouse
public opinion, he re-published "EXTRACTS PRINCIPALLY FROM

LITERATURE/' These extracts made a good sized volume, and
included Shakespeare, Beaumont and Fletcher, Massinger,
Defoe, Dryden, Swift, Prior, Sterne, Fielding, Smollet, and
scores of others. I am informed that these passages were
deemed so "obscene" that the court punished him for contempt
for having even presented them in argument. And yet, not
one of these was ever the subject of prosecution at common

For each and all of these reasons, I assert that "obscenity"
merely as such, (that is, dissociated from blasphemy and sedi-
tion or a tendency to provoke a breach of the peace in private
revenge) was not punishable at common law, and that at the
adoption of our constitutions and prior, the circulation of such
matter was a part of the freedom of the press, although such
freedom was only a matter of permission.

However, under the judicial amendments of our constitu-
tionally guaranteed freedom of the press as an unabridgable
right, we have fewer privileges for sexual discussion than were
enjoyed before the American constitutions or revolution. So
much has our constitutional right been judicially annulled.
The question is : Shall our constitutional freedom be restored ?

l2 Erskine's Speeches, vol. 1, pp. 51-52.




The etiology of depotism is always quite the same. The
absence of understanding, or appreciation, of liberty on the
part of the masses and the natural lust for power, which makes
every human a potential tyrant; makes him indifferent to all
tyranny which does not directly effect him ; and makes him sub-
missive to even that tyranny which is exercised injuriously over
himself if only in his turn he can tyrannize over others it is
these conditions, now combined with the prevalence of a
prurient prudery, which have produced the present result. The
initial exercise of tyrannical power always has to do with sub-
jects as to which there is great public indifference, or a quite
general approval, at least of a sentimental sort. The populace
thus accustomed to the exercise of tyrannous authority, doze
on with the delusion of liberty secure, while the lust for power
induces officials to extend their authoritarian blight from one
subject to another, until in the end the stupid masses awake to
find that they possess all their liberties only as tenants at will
of masters whom they thought servants of their own creation.
I cannot believe these "obscenity" laws would ever have passed
any American legislative body, had it been previously an-
nounced that the result would be such as it now is, within and
beyond the domain of sex-discussion.

Here I must limit myself to an exhibition of the forces
behind this censorship and of its development from the sup-
pression of "obscene blasphemy" to "blasphemous obscenity" :
from the suppression of mere pornographic filth to the nude
in legitimate art ; from medical prudery to the suppression of
popular medical books, thence to serious and more pretentious
sexual science and finally including "purity books" and perhaps



the Bible. The extension of the censorship into the realm of
politics and economics I cannot discuss, though it has been as-
tonishingly wide.

When, from the vantage ground of an age of true enlighten-
ment, future generations shall look back on our vaunted age
of (contemptible?) civilization, they will be moved by mingled
feelings of pity and scorn, even as we are so moved when
looking back upon the "Dark Ages". As now we see the mon-
strosities of the witch-craft superstition, so some future gen-
eration will look back in wonderment at our present sex-
superstition. 1 While in the "dark ages" men were punished for
doubting some tenet of the creed of dogmatic theology, we in
this "age of civilization" punish men for expressing doubt as to
some tenet of the creed of our dogmatic sex-morals ; where
formerly humanity was by law compelled to accept inspired ge-
ology, we of to-day are by law compelled to accept inspired
sexology. For centuries the astrologers made it a crime to teach
the common people astronomy, just as in this twentieth century
it is a crime to teach the common people real sexual science.
The general dissemination of information about geology and
astronomy was prohibited because they discredited the fables of
Genesis about the creation of the earth ; to-day the general
dissemination of information about the sexual sciences (physi-
ology, anatomy, psychology, and ethics) is prohibited because
these sciences discredit the fables of ascetic priests about the
reproductive function of man. Formerly it was thought ex-
tremely dangerous to allow common people to read the Bible
because of the awful consequences of erroneous private judg-
ment, just as now sexual discussion and sciences must be
withheld on account of the same stupid fear.

We are so intoxicated with unenlightened emotions over
the word "liberty" that we have not the capacity to find out
its meaning, nor to discover that we have less liberty of
speech and press to-day than existed in England a century
ago. There would be grim humor in most of what I am
going to record, if only we could relieve ourselves of foolish
apprehensions based upon our popular superstititions and ego-
mania, and view ourselves and our fellows, as thesophists say
we may view our present activities, from the eminence of
some future incarnation.

Physical Culture for June, 1907; "WHAT IS CRIMINALLY OBSCENE?"
Albany Law Journal, July, 1906.


When the descendants and the successors of the puritan
witch-hunters came to framing their fundamental law for the
State of Massachusetts, they thought it necessary to God's
vanity that his existence be given official recognition in the
Constitution. This seems to have operated as a limitation, or
the creation of an exception, to other clauses of the Consti-
tution, such as the guarantee of freedom of speech.

But in the blasphemy trial of Abner Kneeland, which oc-
curred in Massachusetts in 1834, the charge of blasphemy was
reinforced by the prosecutor with this quotation from a work
sold at the office of Kneeland's paper, The Investigator : " We
have now, perhaps, sufficiently matured the subject, so as to
be prepared to propose and answer the question, 'what laws
would you have in relation to matrimony?' To which I
answer Marriage is a civil contract between the parties which
stands upon the same basis of all other civil contracts, which
are binding as long as the parties mutually agree, and no
longer. The parties who make the contract, can dissolve it at
pleasure, or by mutual consent. But if the parties cannot
agree to separate by mutual consent, then it is necessary to
call in a third party, one or more, as referee or arbitrators, not
to bind the parties together for in relation to matrimony,
where the ties of affection do not bind them, this is impossible
but to say on what terms they shall separate, not only in
regard to the property, but also to the maintenance and the
education of the children, if there be any ;***** I would have
no one therefore marry for life, in the first instance nor for
any certain period of time.*****But be not alarmed, the above
principles are not intended for the present state of society at
all, and not until all children are provided for by the public
(who are not sufficiently provided for by their parents), both
as regards their maintenance and education." For circulating
this "blasphemous" statement the defendant was vigorously
denounced before the jury, and after reading the foregoing
extract these questions were asked of the jurors as answering
themselves : "Who will say that courts of justice ought not to
enforce the law against disseminating the moral and political
poison of Atheism, and blasphemy? and proclaim their disgust
at a system combining blasphemy, atheism, infidelity, adultery,
lewdness, removing all moral and religious and legal checks



upon human depravity, and leading to a community of property,
and striking directly at the foundation of civil society? Prose-
cutions against blasphemy at this time, in this country, are not
merely the causes in which God and Religion only are con-
cerned" 2 . A verdict of guilty was rendered and affirmed on

Later the word "blasphemy" became unpopular and lost its
sting as an epithet of criminality, and, notwithstanding the law,
those who desired to blaspheme could do so with practical im-
punity. The high-priests of fanaticism therefore felt com-
pelled to secure laws which, under less archaic names, would
enable them more successfully to punish what theretofore had
been called "blasphemy" ; and they are about to succeed. I
am informed that in 1872 the original draft of the "obscenity"
statutes included "blasphemous" literature among the unmail-
able postal matters. In 1878 the N. Y. Society for the Sup-
pression of Vice, 3 boasted that a "class of publications issued
by freelovers and free-thinkers is in a fair way of being
stamped out." Since then many of the statutes against
"obscene" literature have been amended by the addition of

Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 4 of 43)