Theodore Albert Schroeder.

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

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unauthorized delegation of legislative power, must be specially
made at each trial to cover only the acts then under investiga-
tion and must always be ex post facto. For each of these
reasons a law which in its practical administration necessarily
involves such objections must be judicially annulled.

If a criminal law is so vague as to need interpretation,
then it should be declared a nullity for uncertainty. Any other
course necessarily involves on the part of the interpreting^
judge that as among all possible meanings he exercise his
own legislative discretion and read the result into the legis-
lative intent and phraseology. If the words to be interpreted
symbolize emotions as their only element of unification, and
therefore are incapable of accurate general definition, or if the
materials for a judgment as to the applicability of the law to
every conceivable case, are varying in different persons, then
to allow judges or juries to interpret or apply such a doubtful
statute is to admit their authority to enforce ex post facto cri-
teria of guilt; which are not public nor general, but of private
origin in the court, and particular for each defendant.

The foregoing speculations suggest all that has occurred
to me by way of specifying in general terms the principal
sources of that outrageous remnant of absolutism which so
often results, even in our time and country, in the damnable
practise of punishing men for mere constructive offenses. The
motive for these wrongs is usually a stupid moral sentimental-
ism and self -righteousness, and very often has its roots in
religious superstitions of the past. The remedy can be found
only in securing judges whose intellectual development is
such as to make them true scientists of the law, and who with
clear intellectual insight shall combine that moral courage
which will make them dare to resist the "moral" rant of a pol-
itically potent but intellectually bankrupt professional re-
former. I am sure there are such judges and that with per-
sistance and diligence they can be found.


The standard of certainty and constitutionality is that a
criminal statute to constitute "due process of law" must de-
fine the crime in terms so plain, and simple, as to be within the
comprehension of the ordinary citizen, and so exact in mean-
ing as to leave in him no reasonable doubt as to what is pro-
hibited. Those qualities of generality, uniformity, and cer-
tainty must arise by an unavoidable necessity out of the
very letter of the definition framed by the law-enacting power,
and not come as an incidental result, from an accidental uni-
formity in the exercise, by courts, of an unconstitutionally
delegated legislative discretion. If a statute defining a
crime is not self-explanatory, but needs interpretation, or the
interpolation of words or tests to insure certainty of meaning
in the criteria of guilt, then it is not the law of the land,
because no such judicial test of criminality has ever received
the necessary sanction of the three separate branches of legis-
lative power, whose members alone are authorized and sworn
to define crimes and ordain their punishment. Laws defining
crimes are required to be made by the law-making branch
of government because of the necessity for limiting and de-
stroying arbitrariness and judicial discretion in such matters.
That is what we mean when we say ours is a government
by laws and not by men. It follows that it is not enough
that uniformity and certainty shall come as the product of
judicial discretion, since "law" is necessary for the very pur-
pose of destroying such discretion in determining what is

In chapters 13 to 17 inclusive it has been exhaustively
shown that, whether studied from the viewpoint of abstract
psychology, sexual psychology, abnormal psychology,
ethnography, juridical history, ethics or moral sentimentalism,
or, considered in the light of the mutual destructiveness of
the judicially created criteria of guilt, or their all-inclusive-
ness and the grotesqueness resulting from their general
application, in every aspect we find absolute demonstration
that the statutes against "obscene" literature and art pre-
scribe NO criteria of guilt.

In chapters 18 to 22 inclusive it has been demonstrated
that the maxim, "where the law is uncertain there is no law,"
is an essential ingredient of our constitutional guarantee of



"due process of law," and that therefore all penal statutes
are unconstitutional if they do not prescribe the criteria of
guilt with such precision that every man of ordinary under-
standing may know with absolute certainty whether or not
his proposed conduct is a violation of law.

Co-ordinating these foregoing propositions, we are lead
by irresistible logic to the conclusion that all statutes herein
under investigation are void for the uncertainty, yes, the
total absence, of criteria of guilt. But, in the determination





Statement of Contention : All statutes against "obscene"
''indecent," and "disgusting" literature and art are violative
of section 9, article 1, of the Federal Constitution, which
provides that "No * * * * EX POST FACTO LAW SHALL BE PASSED/'
or are violative of similar limitations in State Constitutions.

From every conceivable viewpoint it has now been
demonstrated that neither these statutory vituperative epithets
against "obscene, indecent, lewd, lascivious, or filthy" literature
or art, nor the unconstitutional, contradictory, and absurd ju-
dicial legislation under them, afford any certainty in the criteria
of guilt, and are incapable of exact or literal application, or of
producing uniformity of result. From this it follows that
every conviction under these mis-called "laws" is according to
ex post facto standards of judgment, created by the court or
jury, during the trial of the accused, and enacted only for the
one case of the defendant then being prosecuted. In other
words, every conviction under these "laws" has been demon-
strated to be according to ex post facto criteria of guilt. The
Congress and State Legislatures, being inhibited against the
passage of ex post facto laws, the right, thus preserved against
legislative infringement, cannot be destroyed by the trick of
authorizing courts to enact the prohibited ex post facto criteria
of guilt. Neither does it make any difference whether the
prohibited legislative power is directly and expressly delegated
to the courts in plain terms, or is indirectly and impliedly
delegated, by leaving uncertain the statutory definition of the
crime, and thus, by silent implication, conferring upon courts
or juries the seeming duty and consequent implied authority,
ex post facto, to enact the necessary tests of criminality. It
must be a self-evident truism that no American legislative body
can delegate to courts any legislative power to define crime,
and that, even if such general authority could be delegated, it
could not include a power to enact ex post facto criteria of



crime. Such ex post facto judicial legislation violates every
modern conception of "law" and cannot constitute "due process
of law." What the legislative department is prohibited from
doing directly it cannot do indirectly, by a clouded attempt to
confer upon the judicial department constitutionally-prohibited
legislative discretion, nor authorize the latter to enact laws of
such a character as even the law-making power is constitu-
tionally prohibited to enact.

In the light of what has preceded, the conclusions herein-
before expressed would seem to be self-evident, or at least to
be in no need of any further direct argumentative support. It
may be, however, that some comment is necessary to show the
bearing, upon these propositions, of the power, in libel cases,
sometimes exercised by jurors, to be judges of the law as
well as of the fact.

Our acquaintance with the law of evolution enables us to
deduce some accurate knowledge of the order and development
of events in our juridical history. Thus we know that the
growing coherence of tribal and inter-community life was
necessarily expressed in rules of conduct increasing in com-
plexity, number, and definiteness of statement, necessitating
and accompanying an unfolding differentiation of the functions
of the court from those of other officials, and the development
of expertness in legal lore, eventually resulting in the differ-
entiation of the functions of judge and jury. Thus we came
to a definite, conception of the right to enjoy "liberty under
law," as distinguished from liberty by permission under
despotism. The former affords at least to every person
the protection of precisely stated, and knowable, rules of
conduct, the observance of which insures absolute freedom
from judicial penalties. This conception of liberty under law
was crystallized into the constitutional guarantees of "due
process of law," the inhibition against ex post facto laws, and
the separate lodgment and limitation of the legislative

The most conspicuous instance of judicial atavism is in
cases of criminal libel, where the jury is authorized to deter-
mine the law as well as the facts. The immediate purpose
here is critically to inquire into the origin, justification, and
constitutional bearing of this anomaly in our jurisprudence.
So far as my researches have informed me, there is not a
single judicial opinion wherein the considerations which seem



to me most important, and herein to be urged, were brought
to the attention of the court, or considered on judicial initiative.
More than any other one man, Thomas Erskine is responsible
for bringing about that change of criminal procedure by virtue
of which, in libel cases only, jurors became judges of the law
as well as of the facts. In order that we may rightly appreciate
the bearing of this anomaly of the law upon our own consti-
tutional problems, we must study his motives, his arguments,
the judicial reply, and the final outcome of the issue, by the
passage of the Fox Libel Law. In the famous case of the
Dean of St. Asaph, the final court-issue was made, and
Erskine's motives were laid bare and his patient research and
great intellectual acumen produced what probably is the best
arguments that could be made in support of his contention. It
is these that we will now consider critically, in relation to their
proper influence upon present issues.

When we remember the history of the infamous Star
Chamber court, and the other outraging judges who were so
servile in the lawless execution of the will of their tyrannous
royal master, we are not astonished that Erskine should have
found his desire for making jurors judges of law in his re-
flections upon "the danger which has often attended the liberty
of the press in former times, from the arbitrary, dependent
judges, raised to their situations without abilities or worth, in
proportion to their servility to [royal] power." 1 "No man in
the least acquainted with the history of nations, or of his own
country, can refuse to acknowledge, that if the administration
of criminal justice were left in the hands of the Crown, or its
deputies, no greater freedom could possibly exist than govern-
ment might choose to tolerate from the convenience or policy
of the day." 2 In the United States, our judiciary has never
been servile to an appointing power in such a manner as, on
that account, to make it specially dangerous to liberty of
speech, nor so as to make it specially desirable to invest juries,
in cases of criminal libel, with authority to overrule the judges
in matters of law. This motive, therefore, does not now exist
for desiring to maintain an anomaly in our judicial procedure,
though from an habitual attachment to forms, rather than an
understanding of the reasons for them, we have in practise

lErskine's Speeches, Edition 1810, V. I, p. 154.
2Erskine's Speeches, Edition 1810, V. I, p. 273.



continued the procedure for which Erskine so ably contended,
long after the reason for the anomaly has ceased to exist.

To Erskine's mind no other practical remedy could have
presented itself for restraining the arbitrary power of a
judiciary that was always servile to royal tyrants, no other
means to check their proneness to extend constructive treason
by judicial legislation, and the consequent lawless abridgment
of freedom of speech. In the United States there are other
available means of subjecting courts to a reign of law, and of
preserving freedom of speech as the condition of all other
liberties. Frequent elections and legislative control, under
our suffrage system, are quite as effective in checking judicial
tyranny as a jury could possibly be. This reason for perpetua-
ting an anomaly also fails, under present conditions. No
other reasons being suggested by Erskine, nor by observation,
we may proceed to consider his legal argument.

Erskine's first reason, offered in support of his anomalous
proposition that jurors were the rightful judges of the law as
well as of the fact, was founded upon ancient precedent. He
insisted that "it is but as yesterday, when compared with the
ages of the law itself, that judges * * * * have sought to fasten
a limitation upon the right and privileges of jurors, totally
unknown in the ancient times," and by retracing far enough
the juridical history, he could find precedents to uphold his

But the answer to this argument was ready at hand in the
fact that this simple judicial method had long been outgrown.
As early as A. D. 1174, Henry divided the Kingdom into six
districts and assigned three itinerant judges, 3 and the differen-
tiation of the functons of judge and the jury, at least as early
as the reign of Elizabeth, had been crystallized into the maxim,
"Ad quaestioncm facti respondent jurat ores, ad questionem
juris respondent jndices" 4 Mr. Justice Buller said the conten-
tion of Mr. Erskine had been completely abandoned by all the
profession except by Mr. Erskine. He added : "I do not know
of any one question in which the law is more thoroughly
settled." 5 Lord Mansfield had already expressed his convic-
tion that such a contention was "perfectly frivolous," and that
it was strange he should be contesting points now, that the

3 Debates on the Grand Remonstrance, p. 9.
^Erskine's Speeches, Edition 1810, V. I, p. 221.
BErskine's Speeches, Edition 1810, V. I, p. 218.



greatest lawyers in the court had submitted to for years before
he was born." 6

After Erskine had harked back to the time of the Saxon
era when "the whole administration of justice, criminal and
civil, was in the hands of the people, without the control or
intervention of any judicial authority, delegated to fixed
magistrates by the crown," 7 he could not but acknowledge
that the evolutionary processes had wrought changes. He
said: "When the civilization and commerce of the nation had
introduced more intricate questions of justice, * * * * the rules
of property in a cultivated state of society became by degrees
beyond the compass of the unlettered multitude, and in certain
well known restrictions undoubtedly fell to the judges; yet
more perhaps from necessity than by consent." 8 But he
argued that these products of evolution should not be acknowl-
edged as attaching to criminal trials, and be it observed that in
this respect he recognized no difference in principal between
cases of criminal libel and other criminal trials. His argument
ran thus: "In a question of property between private individ-
uals, the Crown can have no possible interest in preserving
the one to the other, but it may have an interest in crushing
both of them together, in defiance to every principle of hu-
manity and justice, if they should put themselves forward
in a contention for public liberty, against a government
seeking to emancipate itself from the dominion of the laws." 9
"Where is the analogy between ordinary civil trials, between
man and man, where Judges can rarely have an interest, and
great State prosecutions, where power and freedom are
weighing against each other, the balance being suspended
by the servants of the executive Magistrate?" 10

It will be observed that this is an argument which might
be given great weight if addressed to a body vested with
legislative discretion, and exhibits to us the motive of Erskine,
rather than the actual practise and state of the juridical
evolution, as fixed by precedent.

However, Erskine was not content with this alone. With
great intellectual acumen he undertook to show that many
of the judicial opinions which were in seeming conflict with

SErskine's Speeches, Edition 1810, V. I, pp. 211-212.
7Erskine's Speeches, Edition 1810, V. I, p. 270.
SErskine's Speeches, Edition 1810, V. I, p. 272.
^Erskine's Speeches, Edition 1810, V. I, p. 273.
lOErskine's Speeches, Edition 1810, V. I, p. 254.



his theory were in fact quite consistent therewith, but he had
to admit that against his contention there existed "undoubtedly
the sanction of several modern cases/' and he added, "I wish,
therefore, to be distinctly understood that I partly found my
motion for a new trial in opposition to these decisions." 11 The
court, however, followed the precedent.

One more of Erskine's arguments must be mentioned.
He contended that: "A verdict on an indictment, upon the
general issue, Not Guilty, universally and unavoidably in-
volves a judgment of law as well as of fact, because the
charge comprehends both and the verdict is co-extensive
with it/' 12

Because the court can not hold an inquisition on the
mental processes of jurors it follows, in most cases, and
especially where intent is an element of crime, that a verdict
on the general issue inextricably involves questions of law,
as to which it is within the power of jurors to ignore the
instructions of the court and with impunity. Erskine argued
that because of the existence of this power the court should
acknowledge a claim of authority in the jury to rejudge the
law, as a matter of admitted right.

The court, however, held that the unavoidable power of
jurors to ignore the law, as expounded by the judge, was no
reason for admitting a claim of such authority as rightly
vested in them. Erskine had argued that "the constitution
never intended to invest judges with a discretion which
cannot be tried and measured by the plain and palpable
standard of law." 13 In its decision, overruling Mr. Erskine's
argument, the court applied the same limitation to the discre-
tion of jurors. Both positions are unquestionably correct from
the viewpoint of all who believe in liberty under law. The
opinion of the court in part reads as follows: "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 administration of law to protect individuals, or to
guard the State. * * * * What is contended for? That the
law shall be in every particular cause what any twelve men,
who shall happen to be the jury, shall be inclined to think,
liable to no review, and subject to no control, under all
the bias of interest in this town, when thousands more or less

HErskine's Speeches, Edition 1810, V. I, p. 298.
i2Erskine's Speeches, Edition 1810, V. I, p. 309.
iSErskine's Speeches, Edition 1810, V. I, p. 331.

4 2I


are concerned in the publication of newspapers, paragraphs,
and pamphlets. Under such an administration of law, no
man could tell, no counsel could advise, whether a paper was
or was not punishable." 1

Thus we see that certainty in the criteria of guilt was
even then held to be an essential to the existence of "law"
and of "due process of law," 15 though unfortunately this
essential had not been consistently demanded. Thus, to the
end of promoting certainty and uniformity as indispensable
to the existence of law, do we find it to be the established
practise long before the American Revolution that courts,
and not jurors, are the expositors of the law and that in all
criminal cases, including those of libel, both court and jury
should be precluded from creating the criteria of guilt. How-
ever, under the special conditions existing in England, and
which conditions were abolished by our American Constitu-
tions, there was an urgent necessity for curtailing the power
of courts in the matter of "interpreting" the inexcusably
vague "law" of libel. To give to juries a right to overrule
the judges' conception of the law seemed, and was, the only
practical attainable relief under then existing British conditions.
Accordingly the agitation continued, along the lines mapped
out by Erskine, until in 1792 the Fox Libel Act was passed,
which in all cases of criminal libel gave English juries author-
ity to be judges of both the law and fact.

From the foregoing review, it must be apparent that
neither on principles of juridical philosophy nor on precedent,
can it be said that at the time of the American Revolution
English juries had acknowledged authority to be judges of
libel-law. It follows that Fox's libel law was not merely
declaratory, but a distinct atavic innovation, and accordingly
it has been held that this practise never became a part of the
common law of the colonies. 16 Even if this were otherwise,
it would have no application to our present obscenity laws,
because the circulation of obscene literature was not
a common-law offense. 17 Even though not yet universally
admitted, at least as according to precedent and right reason,

"Erskine's Speeches, Edition 1810, V. I, pp. 379-380.

isin the "Grand Remonstrance" of 1641, addressed by the Long Parliament
to the King, one of the complaints was that the rules of common law which had
survived through centuries of comparative barbarism, had lost their certainty.
Debates on the Grand Remonstrance, p. 236.

iNegley vs. Farroud, 60 Md. 178-180; Com. vs. Blauding, 20 Mass. (3 Pick)

l7"Obscene Literature at Common Law." Albany Law Journal, May, 1907.



the following- principle of English constitutional law as
stated by De Lolme in 1773, was adopted into our American
Constitutions as a natural limitation necessary to preclude
judicial despotism, and is an essential element of our "due
process of law," and in all cases precludes the ex post facto
creation of criteria of guilt, even by juries.

De Lolme' s pre-revolutionary statement of the principle
of the English Constitution now under consideration, is as
follows :

"The judicial power ought, therefore, absolutely to re-
side in a subordinate and dependent body dependent, not
in its particular acts, with regard to which it ought to be a
sanctuary, but in its rules and in its forms, which the legis-
lative authority must prescribe. * * * * The courts and their
different forms must be such as to inspire respect, but never
terror; and the cases ought to be so accurately ascertained,
the limits so clearly marked, that neither the executive power,
nor the judges, may ever hope to transgress them with
impunity. 18


The foregoing discussion, and the discussions and
authorities cited, justify the following conclusions: At. the
time of the separation of the American Colonies, there was
no such crime as "obscene libel" distinct from blasphemy, nor
had jurors in any libel case the authority to be judges of the
law as well as of the facts. Under the common-law and "due
process of law," neither judges nor jurors could be allowed
to create the criteria of guilt, which must always be precisely
defined by the legislative authority, before the act to which
it is applied. It would be beyond the constitutional authority
for juries to penalize acts not clearly within some prior
statutory definition of crime, or for them to create such
definition where the legislature had failed to complete that
task, as in the case of "obscenity" laws. Although the legis-
lature might perhaps authorize the jury to acquit, even where

Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 41 of 43)