What is Criminally "Obscene"? 
 
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 Member of thr 3fedici)- l.et^u/ Sociefy and of the A' );,';-/• Bai . 
 
 This Essay was a part of tJic proceedings of the XI' CONiiRES 
 INTERNATIONAL DE MEDICINE^ SECTION 
 XJ'l MEDICINE LEGALE, held at Lisbon, PortuQa/^ 
 April, igo6, and noic repriiiied from the Albany Law Jour- 
 nal of fiilv. n,n6, for THE FREE SPEECH /.FA(^,rF. 
 
lEx ICtbrtfi 
 
 SEYMOUR DURST 
 
 -t ' 'Tort nteuu/ ^rn^erja-m- Je Manhatarus 
 
 When you leave, please leave this hook 
 
 Because it has heen said 
 "Ever'thing comes t' him who waits 
 
 Except a loaned hook." 
 
 Avery Architectural and Fine Arts Library 
 Gift of Seymour B. Durst Old York Library 
 
WHAT IS CRT^riXALLY "OBSCENE"? 
 
 This essay was a part of the proceedings of the XV Congress International do 
 Medicine, section XVI Medicine Legale, held at Lisbon, Portugal, April, V.m. and 
 also published in the Albany Law Journal of July, 1906. 
 
 The English ParHament, the Congress of the United 
 States, and all the States of the American Union, have pen- 
 alized "lewd, indecent and obscene" literature and art. All 
 this legislation, and the judicial interpretation of it, proceeds 
 upon the assumption (false assumption, as I believe) that 
 such words as "obscene" stand for real qualities of literature, 
 such as are sense perceived, and, therefore, permit of exact 
 general definition or tests, such as are capable of universal ap- 
 plication, producing abpolute uniformity of result, no matter 
 by whom the definition or test is applied, to every book of 
 questionable "purity." 
 
 Under these laws, as administered in England and Amer- 
 ica, every medical book which treats of sex — and many which 
 do not — are declared criminal, and their circulation even 
 among professionals is a matter of tolerance, in spite of the 
 law, and not a matter of right under the law. The infamy of 
 such a statute has induced some American courts, under the 
 guise of "interpretation," to amend the statute judicially, so 
 as to exempt some medical book, otherwise "obscene," from 
 being criminal if circulated only among some professional 
 men. What the judicial legislation will be, must always de- 
 pend in each case upon the court. 
 
 If an accurately definable character of the word "obscene" 
 is not implied in all our laws penalizing the "indecent." then 
 they do not prescribe a uniform rule of conduct, and are there- 
 fore beyond the power of anv English or American legisla- 
 ture to enact. That such is the assumption, is further evi- 
 denced by the fact that no legislative definition or test is fur- 
 nished, and courts assert that none is necessarv, since these 
 are matters of common knowledge. (o6 N. Y. 4T0.) 
 
 That assertion, T believe, is based upon lack of psychologic 
 intelligence, and it is here intended to outline an argument to 
 demonstrate its falsitv. Be it remembered, that this is a ques- 
 
 53 
 
tion in the science of psychology. It is not a question of ethics, 
 nor law, nor legislative expediency, but ever and always a 
 matter of science, which must underlie all these. If my con- 
 tention is correct, then present obscenity laws are a nullity, 
 for want of a definition of the crime, and for the non-existence 
 of that which the statute seeks to punish. I will prove that 
 ''obscenity" is ever and always the exclusive property and con- 
 tribution of the reading mind. 
 
 Nothng will be herein contended for, which will preclude 
 the passage of some other laws designed to accomplish some 
 of the same ends, which some people think justify our present 
 laws against ''impure" literature. To illustrate : Except when 
 done by parents, guardians, et al, it could be made a crime 
 to sell, or transmit, etc., to any person under the age of con- 
 sent, any book containing such word as "sex," or any picture 
 of the sexual mechanism. In such a law, all the conditions of 
 the crime would easily be prescribed with that exactness, 
 which leaves no room for such objections as I am now going 
 to make against the existing statutes. 
 
 Such a law would not, and should not, assume to decide, 
 nor authorize a jury to decide, what is good or bad literature. 
 It would simply assume the incompetence of children to judge 
 for themselves what information they desired, and at the same 
 time accord that rightful liberty to adults. 
 
 In 1661, the learned Sir Matthew Hale, "a person than 
 whom no one was more backward to condemn a witch with- 
 out full evidence," used this language : "That there are such 
 angels (as witches), it is without question." Then he made 
 a convincing argument from Holv Writ, and added : "It is 
 also confirmed to us by daily experience of the power and en- 
 ergy of these evil spirits in witches and by them." (Annals of 
 Witchcraft, by Drake, preface XI.) 
 
 With the same assurance, and no greater ignorance of 
 science — as we hope to show — our courts now affirm that the 
 differential tests of obscenity "are matters which fall within 
 the range of ordinary intelligence," and, therefore, "everyone 
 who uses the mails . . . must take notice of what, in 
 this enlightened age, is meant bv Mecencv, puritv and chas- 
 tity in social life,' and what must be deemed obscene, lewd and 
 lascivious." (U. S. vs. Rosen t6i U. S. 42.) 
 
 This appeal, to the consensus of opinion in "this enlight- 
 ened age," has been made in support of everv superstition 
 that has ever paralyzed the human in^-ellect. Tt would be more 
 
 54 
 
reassuring if judges had given, or would give, us a test of 
 obscenity, in terms of the objective, sense-perceived quahties 
 of literature, by which test alone we could unerringly and with 
 unavoidable uniformity, draw the same, exact, unshifting line 
 of partition between what is obscene and what is pure in liter- 
 ature, no matter who applies the test. Until they furnish such 
 a test to us, their dogmatic assurance that "this enlightened 
 age," possessed such undisclosed knowledge of standards, is 
 not very satisfactory. Without such a test, there is no uniform 
 law to control our conduct, nor that of our courts or juries. 
 
 Whenever one affirms that obscenity is not a quality of 
 literature or art, but solely a contribution of the unhealthy 
 reading mind, and, therefore, opposes the obscenity prosecu- 
 tions, or questions any other sex-superstition, he is promptly 
 cowed into silence by an avalanche of vituperation, such as 
 "impure," "immoral." "smut-dealer," "moral cancer-planter." 
 Such epithets may be very satisfying to undeveloped minds, 
 but they will not commend themselves very highly to any per- 
 son wishing to enlighten his intellect upon the real question at 
 issue. Again we say : This is a matter of science, which re- 
 quires fact and argument, and cannot be disposed of by ques- 
 tion-begging villification. 
 
 The courts are more refined, though not more argumenta- 
 tive nor convincing, in their manner of denouncing dissenters. 
 The judicial formula is this : "When such matters are said to 
 be only impure to the over-prudish, it but illustrates how fa- 
 miliarity with obscenity blunts the sensibilities, depraves good 
 taste, and perverts the judgment." (45 Fed. Rep. 423.) Again 
 we ask for fact and argument, not question-begging dog- 
 matism. The statute furnishes no standard of sex sensitive- 
 ness, nor is it possible for any one to prescribe a general rule 
 of judgment, by which to determine where is the beginning 
 of the criminal "blunted sensibilities," or the limit of "good 
 taste," and the law-making power could not confer this legis- 
 lative authority upon a judge, though in those cases all courts 
 are unconsciously presuming to exercise it. 
 
 Furthermore, it is not clear that "blunted sensibilities" are 
 not a good condition to be encouraged in the matter of sex. 
 Who would be harmed, if all men ceased to believe in the 
 "obscene," and acquired such "blunted sensibilities" that they 
 could discuss matters of sex, as we now discu<^s matters of 
 liver or digestion. — with an absolute freedom from all lasciv- 
 ious feelings? Whv is not that condition preferable to the dis- 
 
 55 
 
eased sex-sensitiveness so often publicly lauded, when parad- 
 ing in the verbiage of ''purity?" If preferable, and so-called 
 "obscene" literature will help to bring about such ''blunted 
 sensibilities," would it not be better to encourage such publica- 
 tions? It requires argument and fact, rather than "virtuous" 
 platitudes, to determine which is the more healthy-minded at- 
 titude toward these subjects. I plead for scientific research, 
 not the brute force of blind dogmatism and cruel authority. 
 
 Assuming its existence as a quality of literature, the ju- 
 dicial "tests" for detecting the presence of obscenity, mani- 
 fest such extraordinary ignorance of sexual psychology, that 
 no man who is accused can reasonably expect to escape con- 
 viction by denying the character of his book. The unfailing 
 verdict of "guilty" is not, as some flatter themselves, due to 
 the wisdom of the prosecutors, but is wholly due to the judi- 
 cial ignorance of science, and to the undefined and indefinable 
 nature of the oflfense. Let us reason together about this. 
 
 If, in spite of the argument by vituperation, a person re- 
 fuses, "with humble prostration of intellect," to submit to 
 the demands of moral snobbery, he is cast from the temple of 
 "good society" into jail. Then the benighted act as though 
 by their question-begging epithets or jail commitment, they 
 had solved the scientific problem which is involved. Let us ex- 
 amine if it is not as true of obscenity as of every witch that it 
 exists only in the minds of those who believe in it. 
 
 My contention is this: "Obscenity" is not an objective 
 fact, not a sense-perceived quality of literature or art, but is 
 only distinguishable by the likeness of particular emotions as- 
 sociated with an infinite variety of mental imasfes. Therefore, 
 obscenity is only a quality or contribution of the viewing mind 
 which, being associated with some ideas, suggested by a book 
 or picture, is therefore read into it. This may be nroven in 
 many ways, and among these, by the resultant fact that "ob- 
 scenity" never has been, nor can be, described in terms of any 
 universally applicable test consisting of the sense-perceived 
 qualities of a book or picture, but ever and always it must be 
 described as subjective, that is, in terms of the author's sus- 
 pected motive, or in terms of dreaded emotions of speculative 
 existence in the mind of some supposititious reader. 
 
 With some knowledge of the psychologic processes in- 
 volved in acquiring a general conception, it is easy to see how 
 courts, as well as the more ignorant populace, quite naturally 
 fell into the error of supposing that the "obscene" was a 
 
 56 
 
quality of literature, and nut — as in fact it is — only a contribu- 
 tion of the reading mind. By critical analysis, \vc can exhibit 
 separately the constituent elements of other conceptions, as 
 well as of our general idea of the "obscene.'' Uy a comparison, 
 we will discover that their common element of unification may 
 be either subjective or objective, huthermore, it will appear 
 that in the general idea, symbolized by the word "obscene," 
 there is only a subjective element of unification, which is com- 
 mon to all obscenity, and that herein it dilYers from most gen- 
 eral terms. In the failure to recognize this fundamental un- 
 likeness between different kinds of general ideas, we will dis- 
 cover the source of the popular error, that "obscenity" is a 
 definite and definable, objective quality of literature and art. 
 
 A general idea (conception) is technically defined as "the 
 cognition of a universal, as distinguished from the particulars 
 which it unifies." Let us fix the meaning of this more clearly 
 and firmly in our minds by an illustration. 
 
 A particular triangle may be right-angled, equilateral or 
 irregular, and in the varieties of these kinds of triangles, there 
 are an infinite number of shapes, varying according to the 
 infinite differences in the length of their boundary lines, meet- 
 ing in an infinite number of different angles. 
 
 What is the operation when we classify all this infinite va- 
 riety of figures under the single generalization "triangle"? 
 Simply this : In antithesis to those qualities in which triangles 
 may be unlike, we contrast the qualities which are common to 
 all triangles, and as to which all must be alike. 
 
 These elements of identity, common to an infinite variety 
 of triangles, constitute the very essence and conclusive tests 
 by which we determine whether or not a given figure is to be 
 classified as a triangle. Some of these essential, constituent, 
 unifying elements of every triangle are now matters of com- 
 mon knowledge, while others become known only as we de- 
 velop in the science of mathematics. A few of these essentials 
 may be re-stated. A plain triangle must enclose a space with 
 three straight lines ; the sum of the interior angles formed by 
 the meeting of these lines always equals two right angles ; as 
 one side of a plain triangle is to another, so is the sine of the 
 angle opposite to the former to the sine of the angle opposite 
 to the latter. 
 
 These, and half a dozen other mathematical properties be- 
 long to every particular triangle ; and these characteristics, al- 
 ways alike in all triangles, are abstracted from all the infinite 
 
 57 
 
different shapes in which particular triangles appear ; and these 
 essential and constant qualities, thus abstracted, are general- 
 ized as one universal conception, which we symbolize by the 
 word "triangle." 
 
 Here it is important to bear in mind that these universal, con- 
 stituent, unifying elements, common to all triangles, are neither 
 contributions, nor creations, of the human mind. They are 
 the relations of the separate parts of every triangle to its other 
 parts, and to the whole, and these uniform relations inhere in 
 the very nature of things, and are of the very essence of the 
 thing we call a "triangle." 
 
 As the force of gravity existed before humans had any 
 knowledge of the law of its operation, so the unifying elements 
 of all triangles exist in the nature of things, prior to and in- 
 dependent of our knowledge of them. It is because these uni- 
 fying elements, which we thus generalize under the word "tri- 
 angle," are facts of objective nature, existing wholly outside 
 of ourselves, and independent of us, or of our knowledge of 
 their existence, that the word "triangle'^ is accurately definable. 
 
 We will now analyze that other general term, "obscene," 
 reducing it to its constituent, unchanging elements, and we 
 will see that, in the nature of things, it must remain incapable 
 of accurate, uniform definition, because, unlike the case of a 
 triangle, the universal element in all that is "obscene" has no 
 existence in the nature of things objective. It will then appear 
 that, for the want of observing this difiference between these 
 two classes of general terms, judges and the mob alike, errone- 
 ously assumed that the "obscene," like the "triangle,'^ must 
 have an existence outside their own emotions, and, conse- 
 quently, they were compelled to indulge in that mystifying ver- 
 biage, which the courts miscall "tests" of "obscenity." 
 
 First of all, we must discover what is the universal constit- 
 uent, unifying element common to all obscenity. Let us begin 
 with a little introspection, and the phenomena of our every- 
 day life. We readily discover that what we deemed "indecent" 
 at the age of sixteen, was not so considered at the age of five, 
 and probably is viewed in still another aspect at the age of 
 forty. 
 
 We look about us, and learn that an adolescent maid has 
 her modesty shocked by that which will make no unpleasant 
 impression upon her after maternity, and by that which would 
 never shock a physician. We know, also, that many scenes are 
 shocking to us if viewed in company, and not in the least offen- 
 
 58 
 
sive when privately viewed; and that, amung (hfferent persons 
 tliere is no uniformity in the added condilKMis which change 
 such scenes to shocking ones. 
 
 We see the plain countynian shocked Ijy the decollete gowns 
 of our well-bred society women ; and she, in turn, would be 
 shocked into insensibility if, especially in the presence of 
 strange men, she were to view some pastoral scenes which 
 make no shocking impressions upon her rustic critic. The 
 peasant woman is most shocked by the "indecency" of the so- 
 ciety woman's bare neck and shoulders, and the society woman 
 is shocked most by the peasant woman's exhibition of bare 
 feet and ankles, at least if they were brought into the city 
 woman's parlor. We see that women, when ailment suggests 
 its propriety, quite readily undergo an unlimited examination 
 by a male physician, while with the sexes reversed, much 
 greater difficulty would be experienced in securing submission. 
 This not because men are jnorc modest than women, but be- 
 cause other social conditions and education have made them 
 differently modest. 
 
 It would seem to follow that the universal qualities which 
 we collect under the general term "obscene," as its constituent, 
 unifying elements are not inherent in the nature and relations 
 of things viewed, as is the case with the triangle. Taking this 
 as our cue, we may follow the lead into the realm of history, 
 ethnology, sexual psychology and jurisprudence. I'y illustra- 
 tive facts, drawn from each of these sources, it can be shown 
 to a demonstration that the word "obscene" has not one single 
 universal, constituent element in objective nature. 
 
 Not even the sexual element is common to all modesty, 
 shame or indecency. A study of ethnology and psychology 
 shows that emotions of disgust, and the concept of indecency 
 or obscenity, are often associated with phenomena having no 
 natural connection with sex, and often in many people arc 
 not at all aroused by any phase of healthy sexual manifesta- 
 tion ; and in still others it is aroused by some sensual associa- 
 tions and not by others ; and these, again, vary with the indi- 
 vidual according to his age, education and the degree of his 
 sexual hyperaestheticism. 
 
 Everywhere we find those who are abnormally sex-scnsiiive 
 and who, on that account, have sensual thoughts and feelings 
 aroused by innumerable images, which would not tlnis aflfect 
 the more healthy. These diseased ones soon develop very 
 many unusual associations with, and stimulants for, their sex- 
 
 59 
 
thought. If they do not consider this a lamentable condition, 
 they are apt to become boastful of their sensualism. If, on 
 the other hand, they esteem lascivious thoughts and images as 
 a mark of depravity, they seek to conceal their own shame by 
 denouncing all those things which stimulate sensuahty in 
 themselves, and they naturally and erroneously believe that 
 it must have the same effect upon all others. It is essential to 
 their purpose of self-protection, that they make others believe 
 that the foulness is in the offending book or picture, and not 
 in their own thought. As a consequence, comes that persist- 
 ence of reiteration, from which has developed the "obscene" 
 superstition, and a rejection — even by Christians — of those 
 scientific truths in the Bible, to the effect that ''unto the pure 
 all things are pure," etc. We need to get back to these^ and 
 reassert the old truth, that all genuine prudery in prurient. 
 
 The influence of education in shaping our notions of mod- 
 esty is quite as apparent as is that of sexual hyperaesthesia. 
 We see it, not only in the different effect produced upon differ- 
 ent minds by the same stimulants, but also by the different 
 effect produced upon the same person by different objects 
 bearing precisely the same relation to the individual. When 
 an object, even unrelated to sex, has acquired a sexual associ- 
 ation in our minds, its sight will suggest the affiliated idea, 
 and will fail to produce a like sensual thought in the minds of 
 those not obsessed by the same association. 
 
 Thus, books on sexual psychology tell us of men who are 
 so "pure" that they have their modesty shocked by seeing a 
 woman's shoe displayed in a shop window ; others have their 
 modesty offended by hearing married people speak of retiring 
 for the night ; some have their modesty shocked by seeing in 
 the store windows a dummy wearing a corset ; some are 
 shocked by seeing underwear, or hearing it spoken of other- 
 wise than as "unmentionables ;" still others cannot bear the 
 mention of "legs," and even speak of the "limbs" of a piano. 
 Surely, we have all met those are afflicted in some of these 
 ways and others who are not. 
 
 Since the statutes do not define "obscene," no one accused 
 under them has the least protection against a judge or jury 
 afflicted with such diseased sex-sensitiveness, or against more 
 healthy ones who, for want of information about sexual psy- 
 chology, blindly accept the vehement dictates of the sexually 
 hyperaesthetic as standards of purity. But whether a judge 
 or a juror belongs to either of these classes, or rejects their 
 
 60 
 
dictum as to what is pure in literature, in any and every such 
 event, he is not enforcing tiie kltcr of a general law, but 
 enacting and enforcing a particular c.v post facto law then 
 enacted by him solely for the particular defendant on trial. 
 What that law shall be in any case depends on the experiences, 
 education and the degree of sex-sensitiveness of the court, and 
 not upon any statutory specification of what is criminal. 
 
 Among the more normal persons, we see the same differ- 
 ence as to what is ofifensive to their modesty, depending al- 
 together upon whetlier or not they are accustomed to the par- 
 ticular thing. That which, through frequent repetition, has 
 become common-place no longer shocks us, but that which, 
 though it has precisely the same relation to us or to the sen- 
 sual, is still unusual, or is seen in an unusual setting, does 
 shock us. 
 
 Some who are passive if you speak of a cow, are yet 
 shocked if you call a bull by name. In the human species, you 
 may properly use the terms "men'' and "women," as differen- 
 tiating between the sexes, but if you call a female dog by 
 name, you give ofifense to many. So, likewise, you may speak 
 of a mare to those who would take liight if you called the male 
 horse by name. With like unreason, you may speak of an ox 
 or a capon to everybody, of a gelding to very many, but of a 
 eunuch only to comparatively few, without giving ottense. No 
 one thinks that nudity is immodest, either in nature or in art, 
 except the nudity of the human animal ; and a few are not 
 opposed to human nudity in art, but find it immodest in nature. 
 
 The Agricultural Department of the United States distri- 
 butes information on the best methods for breeding domestic 
 animals, and sends those to jail who advocate the higher stirpi- 
 culture, for the sake of a better humanity. 
 
 Likewise, Prof. Andrew D. White tells us that: "At a 
 time when eminent prelates of the Older Church were eulo- 
 gizing debauched princes like Louis XV., and using the un- 
 speakably obscene casuistry of the Jesuit Sanchez, in the edu- 
 cation of the priesthood as to the relations of men and women, 
 the modesty of the church authorities was so shocked by Lin- 
 naeus' proofs of a sexual system in plants, that for many years 
 his writings were prohibited in the Papal States, and in various 
 parts of Europe where clerical authority was strong enough 
 to resist the new scientific current." 
 
 Now, education has so reversed public sentiment, that one 
 may write with impunity about the sexuality of plants, which 
 
 6i 
 
was formerly denounced as a "Satanic abyss but men have 
 been, and would be, sent to jail for circulating in the English 
 language the books of Sanchez and others like him. 
 
 It thus appears that the only unifying element generalized 
 in the word "obscene," (that is, the only thing common to 
 every conception of obscenity and indecency), is subjective, is 
 an affiliated emotion of disapproval. This emotion under vary- 
 ing circumstances of temeprament and education in different 
 persons, and in the same person in different stages of develop- 
 ment is aroused by entirely different stimuli, and so has 
 become associated with an infinite variety of ever-changing 
 objectives, with not even one common characteristic in ob- 
 jective nature; that is, in literature or art. 
 
 This, then, is a demonstration that obscenity exists only in 
 the minds and emotions of those who believe in it, and is not 
 a quality of a book or picture. We must next outline the legal 
 consequences of this fact of science. Since, then, the general 
 conception ''obscene" is devoid of every objective element of 
 unification; and since the subjective element, the associated 
 emotion, is indefinable from its very nature, and inconstant as 
 to the character of the stimulus capable of arousing it, and 
 variable and immeasurable as to its relative degrees of inten- 
 sity, it follows that the ''obscene" is incapable of accurate defi- 
 nition or general test, adequate to securing uniformity of re- 
 sult, in its application by every person, to each book of doubt- 
 ful "purity." 
 
 Since few men have identical experiences, and fewer still 
 evolve to an agreement in their ideational and emotional asso- 
 ciations, it must follow that practically none have the same 
 standards for judging the "obscene," even when their conclu- 
 sions agree. The word "obscene," like such words as delicate, 
 ugly, lovable, hateful, etc., is an abstraction not based upon a 
 reasoned, nor sense-perceived, likeness between objectives, but 
 the selection or classification under it is made, on the basis of 
 similarity in the emotions aroused, by an infinite variety of 
 images ; and every classification thus made, in turn, depends in 
 each person upon his prior experience, education and the de- 
 gree of neuro-sexual or psycho-sexual health. Because it is a 
 matter wholly of emotions, it has come to be that "men think 
 they know because they feel, and are firmly convinced because 
 strongly agitated." 
 
 Being so essentially and inextricably involved with human 
 emotions, no man can frame such a definition of the word 
 
 6^ 
 
"obscene" either in terms of the quahties of a book, nor sucli 
 that, by it alone, any judgment whatever is possible, much less 
 is it possible that by any such alleged "test" every other man 
 must reach the same conclusion about the obscenity of every 
 conceivable book. Therefore, the so-called judicial "tests" ' of 
 obscenity are not standards of judgment, but, on the contrary, 
 by every such "test" the rule of decision is itself uncertain, 
 and in terms invokes the varying experiences of the testors 
 within the foggy realm of problematical speculation about 
 psychic tendencies, without the help of which the "test" itself 
 is meaningless and useless. It follows that to each person the 
 "test," which supposedly is a general standard of judgment, 
 unavoidably becomes a personal and particular standard, dif- 
 fering in all persons according to those varying experiences 
 which they read into the judicial "test." It is this which makes 
 uncertain, and, therefore, all the more objectionable, all the 
 present laws against obscenity. 
 
 This general argument can be given particular verification 
 by a study of history, ethnology, general and sexual psychol- 
 ogy, and judicial decisions, until we have produced demonstra- 
 tion amounting to a mathematical certainty that neither nature, 
 common knowledge, science, nor the statute, has furnished, or 
 can furnish, any tests by which to measure relative degrees of 
 obscenity, or to fix the freezing point of modesty, as with a 
 thermometer we measure relative heat and cold, or by chemical 
 tests we determine the presence of arsenic. 
 
 If, then, neither nature, common knowledge, nor the stat- 
 ute, furnish so exact a definition of the "obscene" that, no 
 matter by whom applied, it must uniformly and unerringly fix 
 the same line of partition from that which is not "obscene," 
 and if scientific research has furnished no tests by which, with- 
 out speculative uncertainty, we may with mathematical accur- 
 acy classify every book or picture which, to the less enlight- 
 ened, would seem to be on the borderland of doubtful "purity," 
 then, it must follow that no general rule exists, applicable to 
 all cases, and by which we can or do judge what is a violation 
 of the statutory prohibition. 
 
 The so-called "tests," by which the courts direct juries to 
 determine whether books belong to the "indecent and obscene," 
 are a terrible indictment of the legislative and judicial intelli- 
 gence, which could create and punish a mental crime, and de- 
 termine guilt under it by such absurd "tests." Bereft of the 
 magical, mystifying phrasing of moral sentimentalizing, the 
 
 63 
 
guilt of this psychological crime is always literally determined 
 by a constructive (never actual), psychological (never mate- 
 rial or demonstrable), potential and speculative (never a real- 
 ized) injury, predicated upon the jury's guess, as to the prob- 
 lematical "immoral tendency" (not indicating the rules of 
 which school of religious or scientific morality are to be ap- 
 plied) of an unpopular idea, upon a mere hypothetical (never 
 a real) person. No! This is not a witticism, but a literal 
 verity, a saddening, lamentable, appalling indictment of our 
 criminal code as judicially interpreted. 
 
 Under a law of such vagueness and mystical uncertainty, 
 be it said to our everlasting disgrace, several thousand per- 
 sons in America have already been deprived of liberty and 
 property; unnumbered others have been cowed into silence, 
 who should have been encouraged to speak; and almost a 
 score have been driven to suicide. 
 
 If, then, it is true that a book or a picture can only be clas- 
 sified as to its obscenity, not primarily according to the sub- 
 stance of that which it reveals, but according to the motions 
 thereby aroused, then, three conclusions irresistibly follow: 
 First, there is no general test of obscenity capable of produc- 
 ing accuracy and uniformity of result in classifying books ; 
 second, for the want of such test, there never can be a convic- 
 tion according to the letter of a uniform law, but every verdict 
 expresses only a legislative discretion, wrongfully exercised 
 after the act to be punished, and according to the peculiar 
 and personal experiences of each judge or juror; and it is, 
 therefore, but the enactment of a particular law, for the par- 
 ticular defendant then being tried, and applying to no 
 one else. From these two follows the third, namely: That 
 no man, by reading the statute, can tell whether a particular 
 book is criminal or not, because the criminality does not de- 
 pend upon the statute, but upon the incompetent jurors' specu- 
 lative opinion about the psychological tendency of the book. 
 
 It is inevitable, from such an indefinable statute, that the 
 determination of what is "obscene" should become a matter of 
 juridical arbitrariness, even though a clouded vision — as to the 
 difference between judicial interpretation and judicial legisla- 
 tion — should induce all courts to deny the fact. However, 
 some judges, with the naivette which evidences their conscious- 
 lessness of what they do, quite freely admit that it is not a 
 matter of law, but a matter of discretion, which determines 
 
the cliaractcr of a hook, and, therefore, the ■".^uilt" of its 
 vendor. 
 
 One ju(lj;e. after fninhhnL; with those definitions of ''oh- 
 sccne" — which dclinc nothing eonliniied his instructions to 
 the jury as follows : "These are as precise definitions as I can 
 ^ive. The case is one which addresses itself larp^ely to your 
 good judc^nient, common sense," etc. (38 Fed. R. 733.) 
 
 If "obscenity" means definable qualities of a book, how can 
 guilt under this criminal law be made a matter of "good judg- 
 ment," or a juror's conception of what is "common sense'' 
 upon the subject? The "good judgment" is for the legislature 
 to exercise in passing the law, not for the jurors in determin- 
 ing its meaning, or its application. 
 
 In other cases jurors are instructed that: "If, in their 
 judgment, the book was fit and proper for publication, and 
 such as should go into their families, and be handed to their 
 sons and daughters, and placed in boarding-schools, for the 
 beneficial information of the young and others, then, it was 
 their duty to acquit the defendant. . . The jury were 
 instructed that it did not matter whether the things published 
 in the book were true and in conformity with nature or not." 
 (Com. V. Landis 8 Phila. 453, and other cases.) 
 
 What is here plainly expressed is in every other case ne- 
 cessarily implied, because the statute has not created any gen- 
 eral rule by which we can determine what is against the law. 
 Every conviction is securable only by an exercise on the part 
 of the jury of a legislative discretion, and not according to 
 standards created by any general rule by which we can determ- 
 ine in advance what is and what is not prohibited, which 
 can result in the suppression even of truth, and that discretion 
 is personal to the jurors, and always this particular law of the 
 jury is enacted e.v post facto at the trial of the accused, and 
 not before, and is not, and cannot be, binding upon any other 
 jurors. Since the legislative power cannot be delegated to a 
 jury, and cannot be exercised e.r post facto, even bv the legis- 
 lature itself, it follows that our present laws against "ob- 
 scenity" must be a nullity, and will yet be so declared, when 
 this argument, properly elaborated, shall be presented to an 
 intelligent court. 
 
 Nearlv two htmdred vears aco ATontesnuieu. in viewing the 
 tvrannies about him, wrote thi<^ : "In despotic cfovernment'; 
 there are no laws, the judge himself is his own rule. 
 In republics, the very nature of the constitution requires the 
 
 65 
 
judges to follow the letter of the law. Otherwise the law might 
 be explained to the prejudice of every citizen in cases where 
 their honor, property or Hfe is concerned." (Spirit of Laws, 
 p. 8i.) 
 
 Within the domain of literature, we have unintentionally, 
 through psychologic ignorance, re-established, that irre- 
 sponsible, arbitrary absolutism of the judiciary, which it took 
 many ages of painful struggle to abolish. Shall it remain and 
 be extended, or will we throttle this new despotism? Of jur- 
 isprudence it is said: "Its value depends on a fixed and uni- 
 form rule of action. From what has preceded, it follows that 
 the statutes here in question are uncertain beyond all possibil- 
 ity of being made uniform guides for our conduct. As has 
 been shown, this uncertainty never arises from any doubt as 
 to the contents of the book to be judged, but the uncertainty 
 always arises solely from the indefinable nature of that which 
 the statute attempts to penalize. 
 
 It follows that convictions can only be had as antipathy or 
 afiFection, caprice or whim, on the part of the jurors, dictates 
 the result of their deliberations. For each, the foundation of 
 his judgment of guilt is his personal experience, necessarily 
 differing from the experience of other jurors, who, therefore, 
 have other standards of judgment. It is no credit to the intel- 
 ligence of the bar, that these matters have never been argued 
 to any court. AVhen adequately presented to an intelligent 
 judge, with psychologic insight and an open mind, all present 
 obscenity legislation will disappear. To that end, such a judge 
 will do his plain duty by applying the old legal maxim: 
 "Where the law is uncertain there is no law." 
 
 The short space remaining will be devoted to one of the 
 many illustrations, which in this class of cases exhibit the 
 colossal stupidity of judicial tribunals in "this enlightened 
 age." The courts of America, with great uniformity, have 
 followed the early English decisions in their attempts to define 
 obscenity. Here is the judicial formula: "The statute uses 
 the word *lewd/ which means, having a tendencv to excite 
 lustful thoughts. . . . The test of obscenity is this — 
 whether the tendency of the matter, charg^ed as obscene, is to 
 deprave and corrupt those whose minds are open to such im- 
 moral influences and into whose hands a publication of this sort 
 may fall." 
 
 Here, we can take space to analvze but one of the numerous 
 absurdities involved in this "test of obscenity.'* We will limit 
 
 66 
 
ourselves to the {)hrasc ''those whose minds are open to such 
 immoral influences." This, of course, includes those who, 
 through lony- sex-suppression or disease, are afllicted with the 
 most acute sexual-h^perat sthesia. 
 
 Kraft-Ebing^, among many biogra])hies of sexual psycho- 
 paths, gives one from which I will only quote a single para- 
 graph. The patient says : "The thought of slavery had some- 
 thing exciting in it for me, and alike whether from the stand- 
 point of master or servant. That one man could possess, sell 
 or whip another, caused me intense excitement ; and in reading 
 'Uncle Tom's Cabin' which T read at about the beginning of 
 puberty) I had an — r — ct — n." f Psychopathia Scxualis, p. 
 105, from the translation of the 7th German edition.) 
 
 The explanation is not difiFicult. The stirring scenes de- 
 picted in "Uncle Tom's Cabin" produced a very intense gen- 
 eral excitement, which, by its irritation of the — possibly ab- 
 normally sensitive sex nerve-centers, produced sexual excite- 
 ment. 
 
 A jury of experts, knowing this and kindred facts, and ap- 
 plying the test of obscenity and lewdness prescribed in prac- 
 tically all the English and American decisions, must conclude 
 that "Uncle Tom's Cabin" is an obscene and lewd book, within 
 the statute. Only a jury very ignorant of the effect of such a 
 book on "those whose minds are open to such immoral influ- 
 ences," could render a verdict of "not guiltv." if trying a per- 
 son charged with the "indecent crime" of sending "ITncle 
 Tom's Cabin'^ through the mails. 
 
 But the courts who promulgated such stupiditv as a "test" 
 of obscenity, tell us that this is "within the range of ordinary 
 intelligence." Yes, so exfraordwary that mv vocabulary is 
 inadequate for the occasion, and, therefore. T close. 
 
 Theodore Schroeder. 
 63 East 5gth Street, New York Citv. 
 
 "We have been taught to ])elieve that it was the greatest 
 injustice toward the common people of old Rome when the 
 laws they were commanded to obey, under Caligula, were 
 written in small characters, and hung upon high pillars, thus 
 more effectually to ensnare the people. How much ad- 
 vantage may we iustly claim over the old Romans, if our 
 criminal laws are so obscurely written that one cannot tell 
 when he is violating them? If the rule contended for here 
 
 67 
 
is to be applied to the defendant, he will be put upon trial for 
 an act which he could not by perusing the law have ascer- 
 tained was an offence. My own sense of justice revolts at 
 the idea. It is not in keeping with the genius of our insti- 
 tutions, and I cannot give it my sanction. * * * 'pj^g [^i- 
 dictment is quashed, and the defendant is discharged." Judge 
 Turner on a trial for depositing an obscene sealed letter in 
 the Post Office. Dist Court West. Dist. of Texas. U. S. vs. 
 Commersford 25 Fed. Rep. 904. 
 
 68