Theodore Albert Schroeder.

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entitled, "The Confessional Unmasked : Showing the De-
pravity of the Romish Priesthood, the Iniquity of the Con-
fessional, and the Questions put to Females in Confession."
The pamphlet consisted of extracts from Catholic theologians,
one page giving the exact original Latin quotations and the ad-
joining page furnishing a correct translation thereof. Much of
the pamphlet admittedly was not at all obscene. It was not
sold for gain, nor with any intention to deprave morality, but,
as the defendant believed, to improve morality. It was sold
by him as a member of the "Protestant Electoral Union,"
formed "to protest against those teachings and practices which
are un-English, immoral, and blasphemous, to maintain the
Protestantism of the Bible and the liberty of England. * * * To
promote the return to Parliament of men who will assist them
in these objects and particularly will expose and defeat the
deep-laid machinations of the Jesuits, and resist grants of
money for Romish purposes."

Notwithstanding all these admitted facts the court held the
pamphlet to be obscene and laid down this test : "Whether the
tendency of the matter charged as obscenity is to deprave and
corrupt those whose minds are open to such immoral influ-
ences, and into whose hands a publication of this sort may
fall." It will be observed that it was criminal, if in the hands
of any one imaginary person it might be speculatively believed
to be injurious, no matter how much it tended to improve the
morals of all the rest of mankind, nor how lofty were the mo-
tives of those accused, nor how true was that which they wrote.
This is still the test of obscenity under our laws, and it has
worked some results which could hardly have been in con-
templation by our legislators in passing our laws against inde-
cent literature.

This prosecution, altho' not designated blasphemy, was
yet more nearly allied to that than is apparent on superficial
view. The main purpose of the book was to discredit the

9 Reg. vs. Hicklin, L. R. 3 Q. B. 360.



largest and most influential section of Christian priests. In
Germany, where practically no attention is given to ''obscenity,"
merely as such, a novel entitled "The Sinful Bishop," written
by a Catholic priest, and which "in no sense offends morals,"
was suppressed. In New York City, though no attention is
given to ordinary plays, yet, when "Mrs. Warren's Profession"
presented a plot wherein a priest in his boyhood had fathered
an illigitimate child, that, in the opinion of Police Commissioner
Bingham, made it "obscene." Mark you, because it was a
priest and tended to discredit clergymen and the church. No
play in which non-clericals are guilty of illicit love ever ex-
cited the police commissioner. In California a book substanti-
ally like that in the Hicklin case was also suppressed. 10


Connected with this subject of publicity about venereal
infection, and its relation to purity, I shall presume to relate
a personal experience. When a boy of 15 years, I left the pa-
rental home to find work in Chicago.

I soon discovered here a Museum of Anatomy conducted
by one of those persons whom we contemptuously call
"quacks/' because they advertise their willingness to treat
diseases which many compassionless moral snobs in the medi-
cal profession refuse to treat, which refusal results in so
much suffering to the innocent.

In this Museum, for a trifling admission fee, I saw perfect
imitations in wax of all the indescribable horrors consequent
upon venereal infection. Of course the exhibition was ob-
scene and indecent beyond description, but it was something
more as well. It was an object lesson giving ocular demon-
stration of the terrible consequence of promiscuity and could
not do otherwise than to inspire a wholesome fear of which
I have not rid myself to this day. The vividness of the im-
pression produced by one such sight would far surpass all
the moral and religious sermons that could be preached from
now till doomsday, -because the innuendos or even the direct
statements can mean nothing to the child-mind, before it is
possessed of the experience which enables it to translate the
words into corresponding mental pictures.

Nowadays such museums are suppressed because of their
obscenity. It is deserving of consideration whether such
forces for good had not better be encouraged by their attach-

10 Price v. U. S., 165 U. S. 311, I believe was the case.



merit to our public schools, in preference to their suppression
because shocking.


Recently a book agent was arrested in Boston for selling
"obscence" literature. The following is the title of the book
which gave offense : "The Sexual Life, Including Anatomical
Illustrations and Obstetric Observations, also a series of en-
gravings illustrating the Formation of Life, Growth of the
Embryo, Development of the Foetus, and the Casarean Opera-
tion, by Prof. Benjamin Franklin Stratton. Sixth edition
revised and enlarged."

A conviction was secured, perhaps made possible largely by
other associated charges.


In Massachusetts one Jones was arrested for sending
through the mails "Clark's Marriage Guide." It must already
be apparent that under the laws in question no one can tell
in advance what is or is not criminal, 'because no one can pre-
determine what will be the opinion of a judge or jury upon
the speculative problem of the book's psychological tendency
upon some hypothetical reader suffering from sexual hyper-
aestheticism. Unfortunately, Mr. Jones went for advice to a
lawyer who must have been a good deal of a prude, and who
therefore advised his client to plead guilty, which he did. Later,
when Judge Lowell was called upon to impose the sentence,
he is reported as having said that the book "is not immoral
or indecent at all," and imposed only a very light fine. In
Chicago, the same book was suppressed by heavy fines ; aggre-
gating over $5,000.00.


Edgar C. Beall, M.D., wrote a little book entitled "The
Life Sexual, a Study of the Philosophy, Physiology, Science,
Art and Hygiene of Love," which was suppressed in 1906 by
threat of prosecution. The book was written for the general
reader and differs from the ordinary "purity" book in that the
theology of sex in supplanted' by a more enlightened view, and
much very wholesome and needed advice, in spite of its slight
element of "phrenophysics." However, this had nothing to
do with its "obscenity." I have read much of this book and
can not for the life of me conceive why it should be deemed
offensive, because the book is written in a refined style and is



instructive. The opening chapter is devoted to a strong
criticism of "The Ban upon Sexual Science," and maybe
therein lies the cause of complaint. Another explanation was
offered by a minor official, and it was that this matter, coming
to the attention of the post office department immediately after
the suppression of Professor Malchow's book, the similarity of
title suggested a necessary similarity in treatment of the sub-
ject and therefore a like "obscenity."


In a letter dated Nov. 15, 1907, an assistant Attorney
General of the U. S., who really is the master of our intel-
lectual food supply, pronounced a magazine unmailable for
advertising "Vice : Its Friends and its Foes," and "Up-to-Date
Fables/' of which he says "both of which, from the table
of contents set forth in each advertisement, are obscene, lewd,
lascivious, or indecent." The first of these booklets I have
seen and in the main it is an attack on Comstockery, and an
argument for sexual intelligence. Even Mr. Comstock would
not have found this booklet to be obscene, though of course
he would disagree with its conclusions. The table of contents
is too long to reproduce here, but I will reproduce the table
of contents of the "Up-to-Date Fables" just to show how little
information is necessary to discover "obscenity" when one
has a "pure" mind. Here it is: "Contents: the Male Amazons,
The Strassburg Geese, Bread Eaten in Secret, The One Tune,
A Tale about Noses, The Women and the Wells, Mrs.
Grundy's Two Boarding Schools, The Emancipated Horses."
Now, then, from that, and that alone, a pee-wee clerk in the
government employ is able to decide and does decide, that this
booklet is degrading to our morals, an advertisement telling
us where it may be had is unmailable, and to send any of
these through the mails entitles the sender to five years in jail.


As illustrating how our fears are often but the product
of ignorance, I am going to relate to you how and why I
changed my mind about two booklets pronounced "the most
obscene" that ever came to the criminal court. If these really
are the most offensive of condemned literature then I am pre-
pared to stand all the rest. Both were entitled "The Wedding
Night," and dealt with their subject in a very detailed manner.
One was by an unfortunate woman named Ida Craddock, who



styled herself a "purity lecturer." Mr. Comstock denounced
her book as "the science of seduction.'' It could have been
more accurately described as advice for the best means of con-
summating the marriage. The judge who denounced the au-
thor called it "indescribably obscene." To one who, from
diseased sex-sentiveness, is incapable of reading a discussion
of sex functioning with the same equanimity as would ac-
company a discussion of lung functioning, or to one who
would apply the absurd judicial "tests" of obscenity, this
booklet must appear just as these men described it. Of course
she was found guilty. Later she committed suicide to escape
the penalty of the law.

For the book Mrs. Craddock claimed to have the endorse-
ment of several prominent members of the Woman's Chris-
tian Temperance Union, and published a letter from the Rev.
W. S. Rainsford, the very distinguished rector of the fash-
ionable St. George's Episcopal Church of New York City, in
which he said : "This much I will say, I am sure if all young
people read carefully The Wedding Night/ much misery, sor-
row, and disappointment could be avoided/'

The other booklet was by Dr. Alice Stockham, the well
known author of Tokology and similar books, and in name
and substance, I believe, it was very much like the Craddock
book. A Post-Office Inspector pronounced it the most obscene
book he had ever read. She was convicted and heavily fined,
though with many friends she vigorously defended the pro-
priety and necessity for her booklet of instructions. Of course
neither of these books nor any like them are now anywhere
to be had.

The question is what good could be done by such books,
so unquestionably obscene if judged by present judicial stand-
ards? I confess that when first I heard of these cases I knew
of no excuse for the existence of this unpleasant literature.

I had read in medical literature statements like this : "The
shock and suffering endured by the young wife, in the nup-
tial bed, is too frequently prolonged into after-life, and may
seriously mar the connubial bliss." 11 Such generalizations,
however, meant nothing to me until a strange set of circum-
stances came to my notice, which I will relate to you in the
order of their occurrence.

Not long since I learned of the marriage of persons in a

u The Sexual Life, p. 127.



most conservative social set. The couple had been chums
since childhood and engaged lovers for many years. After
this long waiting, came the joyously anticipated wedding,
and the bride was the ideal picture of radiant love. The day
after her marriage she acted strangely, and by evening her
husband and relatives concluded that her reason had been de-
throned, and ever since she has been confined in a sanitarium.
Through her incoherent speech, only one thing is sure and con-
stant, and that is that she never again wants to see her hus-
band. More information is not given to the conservative circle
of her friends. All profess ignorance as to the immediate
cause of this strange mania, which reverses the ambition, hope,
and love of a lifetime.

Strangely enough, within two days after hearing this pain-
ful story, a friend handed me the Pacific Medical Journal, for
January, 1906. 12 Therein I read the following paragraphs
and to me the mystery had been solved. Now I thought I
knew why one bride had her love turned to hate, her mind
ruined, and why her relatives were so shamefacedly silent,
lest some should learn a. useful lesson from their affliction.
j / The material portion of the article reads as follows : "While
upon this point I would say that under the so-called sanctity
of the Christian marriage, untold thousands of the most brutal
rapes have been perpetrated, more brutal and fiendish indeed,
than many a so-named criminal rape. So outrageous has been
the defloration of many a young girl-wife by her husband,
that she has been invalided and made unhappy for the balance
of her natural life. There are cases on record where so vio-
lently has the act of copulation been performed that the hymen,
being thick and but slightly perforated, death has followed
its forcible rupture, and the nervous shock associated with the
infamous proceeding. Here the criminally ignorant young
husband and the ravisher are at par, and no censure that the
world can mete out to them can be too great."

And now I thought I had received new light on those
strange and not infrequent accounts one reads in the news-
papers of young women who commit suicide during their

Here another strange chance led me upon Dr. Mary
Walker's book, "Unmasked, or the Science of Immorality,"

"Article by R. W. Shufeldt, M. D., Major Medical Department of U. S. Army,
and Trustee of the Medico-Legal vSociety of New York.




where I read the following paragraph : "There are instances
of barrenness, where the only cause has been the harshness
of husbands on wedding nights. The nerves of the vagina
were so shocked and partially paralyzed that they never re-
covered the magnetic power to foster the life of the sperma-
tozoa until the conception was perfected/'

With this much I went to a physician friend, and he
promptly confirmed all that had been said by the others and
handed me "Hygiene of the Sexual Functions, a lecture de-
livered in the regular course at Jefferson Medical College of
Philadelphia, by Theophilus Parvin, A. D., M. D., Professor
of Obstetrics and Diseases of Women and Children." On
page two I read the following: "Occasionally you read in the
newspapers that the bride of a night or of a few days, or of
a few weeks, has gone home to her parents, and never to re-
turn to her husband ; but there is a Chicago divorce conclud-
ing the history. One of the most distinguished French physi-
cians, Bertillon, has recently said that every year, in France,
he knows of thirty to forty applications for divorce within the
first year of marriage, and he has reason to believe that a
majority of these are from the brutalities of the husband in
the first sexual intercourse."

After reading these statements from highly reputable phy-
sicians, I could no longer doubt that these "most obscene
books ever published," were really most humanitarian efforts
on the part of those who perhaps had a wider knowledge than
I possessed. If this is the worst, I am prepared to take
chances on lesser "obscenity."


The two books now about to be mentioned are not medical
books in any sense, and yet mark a sort of transition state
toward the more scientific discussion of sex-problems.

The heading is the title of one of the best known books
of that conspicuous philosopher and dreamer, Emanuel Swe-
denborg. Of course this book was written about a century
and a half ago. The Swederiborg Society of London was
organized in 1810, since which time it has been promoting the
circulation of the more important works of Swedenborg. It
is probable, therefore, that the English rendition of "Conjugial
Love" has been on the market for over half a century. In
the year 1909, in the City of Philadelphia, a magistrate judici-
ally declared it to be obscene. Thus, again, not only was an



"obscene" book suppressed, but also a heretical sect was dis-
credited. 1S


This is the title of a very interesting little book by Dr.
George F. Butler, of Chicago, who is well known to the
medical profession.

In the preface, the author describes his effort as one to
present "a physiological study of love and its relationship to
phychical as well as physiological phenomena. ***** The
grosser features of the sexual instinct, of itself ideally pure
revolting as they may appear, have, therefore, not been
disguised. ***** The motive of the present monograph
is an ascent from the lower to a higher, purer phase of pas-
sion, an aspiration whose heavenward struggle and stately
floresence are the crown and glory of mortal love."

And such a book by such a man cannot go through the
mails, nor be so advertised, because a postal clerk says it can't
and is backed by a statute so uncertain that it neither affirms
nor contradicts his authority.

It used to be thought that ours was not a bureaucracy and
that, because of our Constitution, departmental legislation
could never supersede congressional enactment. It was even
judicially declared that all "is purely legislative which defines
rights, permits things to be done or prohibits the doing there-
of." 14 But what does a stupid public, or its official masters,
care for such old judicial opinions as to constitutional rights,
when these interfere with the masters' lust for power, and
moral sentimentalism ?


Recently a distinguished "purity" worker issued a whole-
some little pamphlet entitled "Not a Toothache or a Bad Cold,"
which was suppressed by threat of arrest, though the Post-
Office authorities had declared it mailable.

"The Social Peril" is a book dealing with venereal infec-
tion, and is by one of the best known professional moralists
in America. Mr. Comstock threatened him with arrest for
"obscenity," partly for a fifteen page quotation from a book
by Rev. Henry Ward Beecher. The "Social Peril" is sup-
pressed, through fear of a criminal prosecution, though other
elements finally culminated to accomplish the same end.

It seems part of the irony of fate that those who are more

"The Public, Mch. 26, 1909.

14 U. S. v. Mathew, 146 Fed. Rep. 308; U. S. v. Eaton, 144 U. S. 687.



or less consciously fostering this absurd legislation in .support
of the ascetic ideal, should be caught in their own traps.
There are other examples of the same kind to which we will
direct attention.


This book has the endorsement of practically all opponents
of dancing. It furnished the suggestions for thousands of
sermons ; it had the commendation of innumerable clergymen,
including several bishops ; it went through the mails unchal-
lenged for 12 years. A Chicago postal official now declares it
criminally "obscene" and the book is suppressed. Again it is
not a rule of general law which makes this book criminal, but
the whim or caprice of a postal subordinate.

In 1892, Dodd, Mead & Co., published a little book entitled
"Almost Fourteen," written by Mortimer A. Warren, a public
school teacher. Before publishing it, Mr. Mead submitted the
manuscript to his wife and to the pastor of the Broadway
Tabernacle, and of the Church of the Heavenly Rest, and to
Dr. Lyman Abbott. All these endorsed its aim and tone.

After publication, there were of course prudes who criti-
cised, but such papers as the Christian Union gave it a favor-
able review. The Rev. L. A. Pope, then pastor of the Bap-
tist church of Newburyport, Mass., placed the book in the
Sunday School library of his church, and purchased a large
number at a reduced price, selling them at cost, simply that
the young might read and learn, so well did he think of the
book. In my own view it would be impossible to deal prop-
erly with the subject of sex and do it in a more delicate, inof-
fensive manner.

No question was raised about the book until 1897, when
Albert F. Hunt, of Newburyport, Mass., was arrested for sell-
ing obscene literature. Mr. Hunt had made himself very un-
popular as an aggressive reformer. He had attacked the police
force, exhibited the iniquity of the city administration, ex-
posed the sins of the city, such as the practice of taking nude
photographs, the aggressions of the saloonkeepers, and exposed
the owners of buildings leased for prostitution. He had many
influential enemies. In this condition he secured permission to
republish "Almost Fourteen" in his paper, was arrested, con-
victed, and fined.



I have no doubt in my mind that, judged by the scientifical-
ly absurd tests of obscenity as applied by the courts, this in-
nocent book was criminal under the law against obscene litera-
ture, because no doubt somewhere there existed some sexually
hyperaesthetic person into whose hands it might come, and in
whose mind it might induce lewd thoughts. The legislative
"obscenity" takes no account of the thousands who might be
benefited by such a book ; it only asks if there may be one
so weak that it might injure him.

After this conviction for circulating humanitarian litera-
ture of a most useful kind, the author of this good book was
driven from his place as principal of the public schools, by the
prudish bigotry of his fellow townsmen and employers. The
book can now be had only with much of its most useful matter
eliminated. We need liberty of the press for persons like War-
ren, Hunt, and Dodd, Mead & Co.


Most of the literature intended to promote personal purity
is so veiled in a fog of verbiage as to be utterly meaningless
to the young, because they lack the intelligence which alone
could make it possible to translate the innuendoes into the men-
tal pictures which the words are supposed to symbolize. Re-
cently Mrs. Carrie Nation in her paper published some whole-
some advice to small boys. She used scientifically chaste Eng-
lish and took the trouble to define the meaning of her words.
She wrote so plainly that there was actually a possibility that
boys might understand what she was trying to teach them.
She wrote with greater plainness than some of those books
which have been adjudged criminally obscene.

A warrant was issued for her in Oklahoma, for sending
obscene matter through the mails. She being then in Texas
on a lecture tour, was there arrested and taken to Dallas be-
fore a U. S. Commissioner. Fortunately she found there a
U. S. Attorney with some sense, who, though he did not ap-
prove of her taste, consented to the discharge of the prisoner.
Mrs. Nation is to be congratulated upon having discovered
one spot in this country not dominated by the prurient prudery
of New England and New York. Unfortunately none can know
when and where another healthy-minded prosecutor will be
found. However, the postal authorities, disagreeing with the
courts, still exclude the article from the mails. 15

"The Hatchet, Dec., 1906.

6 4




One of the early American prosecutions of note was that
of the distinguished eccentric, George Francis Train, in 1872.
He was arrested for circulating obscenity, which it turned out
consisted of quotations from the Bible. Train and his at-
torneys sought to have him released upon the ground that the
matter was not obscene, and demanded a decision on that issue.
The prosecutor, in his perplexity, and in spite of the protest of
the defendant, insisted that Train was insane. If the matter
was not obscene, his mental condition was immaterial, because
there was no crime. The court refused to discharge the pris-
oner as one not having circulated obscenity, but directed the
jury, against their own judgment, to find him not guilty, on the
ground of insanity, thus, by necessary implication, deciding the

Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 6 of 43)