scenity" to a few related facts, well known to the psychiatrist, in order that their connection, and the crass judicial ignorance concerning the import of these "tests," may become more generally known. Krafft-Ebing, in quoting the confession of a masochist, gives this as the language of the afflicted one: "That one man could possess, sell, or whip another caused me intense excitement; and in reading 'Uncle Tom's Cabin' (which I read about the beginning of puberty), I had erections. Particularly exciting to me was the thought of a man's being hitched up before a wagon in which another man sat with a whip, driving and whipping him."86 Here then is a case where conviction would have been dependent, not upon the jurors' mere a priori speculation, but upon the admitted fact that the "tendency" of "Uncle Tom's Cabin," according to the judicial ignorance, is to "deprave and corrupt the morals of those whose minds are open to such influences" and that it has a demonstrated "tendency to excite lustful thoughts." Thus, by the generally accepted judicial tests of obscenity, our "most learned” judges condemn "Uncle Tom's Cabin" as being an "obscene" and a "lewd" book, and it is a crime to sell it, or to send it by mail or express, if the "law" (?) is uniformly enforced. One need but know the facts of sexual fetichism and apply the judicial "test" of obscenity, to an apron, feathers—any item of female attire, such as the shoe, furs, handkerchiefs, gloves, silks, velvets, or even a woman's hand, or hair, or perfumes, and thus demonstrate that in themselves each of these is an object of "public indecency" and "obscenity" because "to those whose minds are open to such influences," to wit, certain sexual fetichists, it has a demonstrated "tendency to excite lustful thoughts." Dr. Havelock Ellis recently wrote this: "The case has lately been reported of a young schoolmaster who always felt tempted to commit a criminal assault by the sight of a boy in knickerbockers; that for him was an 'obscene' sight-must we, therefore, conclude that all boys in knickerbockers should be forcibly suppressed as 'obscene' ?86a Most assuredly! If the judicial tests of obscenity and lewdness are to be applied, it becomes a public indecency, in many States criminally punishable, to permit a boy in knickerbockers to be seen in public, 86 Psychopathia Sexualis, Chaddock translation, p. 105. and a picture of such a boy would be an "obscene and indecent, a lewd and lascivious" print, within the meaning of the postal law, because it has a demonstrated "tendency to deprave and corrupt the morals of those whose minds are open to such influences"; because in such persons the picture of a boy in knickerbockers has a demonstrated "tendency to excite lustful thoughts." The literature of sadism also furnishes illustrations of the crass ignorance involved in our judicial "tests of obscenity." "There is a case of a boy who experienced sexual feeling by viewing the picture of a battle scene," hence such pictures are "obscene and indecent, lewd and lascivious," and, therefore, criminal if sent by mail. Again our author writes: "A surgeon confessed to the writer that while reading in a surgical work a description of the puncture of a festered wound, he found himself, to his astonishment, in a state of sexual excitement." Therefore, according to the judicial "test of obscenity,' a book on surgery is non-mailable because "obscene and indecent," etc., it being now a demonstrated fact that such books have "a tendency to excite lustful thoughts," and, therefore, by the official "logic," a tendency "to deprave and corrupt the morals of those whose minds are open to such influences and into whose hands a publication of this sort may fall," to wit, certain sadists. Maj. R. W. Shufeldt, a distinguished scientist and a retired army-surgeon, while denouncing the absurdity of suppressing the literature of human topographical anatomy, said: "My studies have brought me much evidence in this matter. It is only the sadist who quivers with sexual excitement as he or she stands and views the whips and a few other implements in the windows of a harness-store, and not the normal being; it is only the hopeless sexual pervert who is driven to libididinous gratification after viewing the piston copulating with the cylinder on the side of a locomotive, and not the healthy minded engineer in the cab. * * * * One case came to my knowledge of a man who was so delicately balanced sexually that he could not view in the window of a fish store a lot of hardshelled clams that the association of the name, and the outline of the posterior aspect of the bivalve, did not suggest to his mind the external sexual parts of woman and greatly excite him as a consequence. All this constitutes no valid reason, 87 Arthur MacDonald in Medico-Legal Journal, for March, 1907. however, for our prohibiting a whip display in a trademan's window, do [ing] away with the locomotive, or suppress [ing] the public sale of clams."88 Here then we have it demonstrated according to the most generally accepted judicial criteria of "obscenity" that "Uncle Tom's Cabin," a book on surgery, a hard-shelled clam, a horsewhip, a lady's shoe, glove, handkerhcief, and, in fact, everything on earth is legally "obscene, indecent, lewd, or lascivious," because to some minds lewdness has been or may be suggested by it. 9989 There was a time when the Federal Supreme Court still subordinated the will of its judges to constitutional law. Then it was said: "It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained and who shall be set at large.' Will it adhere to that doctrine when moral sentimentalism is involved? In many fields of jurisprudence we are the helpless victims of the arbitrary will of a lawless judiciary. This lawless judiciary in the matter of obscenity has legislated into existence "criteria of guilt" so contradictory as to be meaningless, so inclusive as to make everyone a criminal, and, when applied to all conceivable cases, so fantastic in their result as to make our courts a laughing stock of the alienist. And these courts, which unconstitutionally enact such contradictory and extremely absurd criteria of obscenity, tell us: "These are matters which fall within the range of ordinary intelligence";" and, "Everyone who uses the mails * * * must take notice of what in this enlightened age is meant by decency, purity, and chastity in social life and what must be deemed obscene,' lewd, and lascivious."91 BAH!!! But, our judges are not solely to blame for being so densely ignorant as not even to suspect the fact. The blame lies farther back with our moralists for revenue, who, with the stupid sentimentalists, have so nearly suppressed all literature not in harmony with the theology of sex that the average physician is quite as ignorant as our "most learned judges." Dr. Wm. J. Robinson edits several journals for his profes 88 Pacific Medical Journal, March, 1909, p. 152. 89U. S. vs. Reese 92 U. S. 219-221. 90 People vs. Muller, 96, N. Y. 410. 91U. S. vs. Rosen 161 U. S. 42, See also, Redd vs. State, 176 Fed. Rep. 944. sional brethren, and makes something of a specialty of venereal subjects. Yet he, who is accounted among the leaders in his profession, wrote this: "And so [as in the case of beauty and ugliness] it is in regard to obscenity; the thing in itself is not obscene; in the midst of the desert or at the bottom of the sea, it is not obscene. But if it induces some people, however small a number, to commit indecent, unhealthy things, then the thing is indecent, and no amount of sophistry can do away with the fact." 1992 No! the judges are not the only ones whose minds are "uncorrupted by learning" on sexual psychology, and they are not to be blamed for their ignorance, only for their unwillingness to be enlightened. But what shall we say of the moralists for revenue and the quack-moralists in the medical profession? CONCLUSION. It has been demonstrated that, whether viewed as a problem of abstract psychology, of sexual psychology, abnormal psychology, ethnography, juridicial history, or considered in the light of the mutual distructiveness of the judicially created criteria of guilt, or their all inclusiveness and the grotesqueness resulting from their general application, in every aspect we find absolute demonstration of the correctness of the occasional judicial admission that the statutes under consideration do not prescribe the criteria of guilt by which judge or jury determines that the law has been violated. It will next be exhaustively shown that such certainty 'in the criteria of guilt is essential to the validity of a penal statute. The conclusion contended for is well stated in a recent case where it is said: "A crime can be created only by a public act, and the language of the act must be sufficient to completely declare and define the crime and affix the punishment. **** The discretion of fixing what facts import criminality is exclusively that of the lawmaker as distinguished from the executive,"93 or court. It follows from the coordination of these propositions that all of these laws are nullities, because "Where the law is uncertain there is no law," and, consequently, no "due process of law." 92 Altruria, 1907, p. 2. Italics are mine.-T. S. 93U. S. vs. Louisville and N. Ry. Co. 176 Fed. Rep. 944. CHAPTER XVIII. "DUE PROCESS OF LAW" IN RELATION TO STATUTORY UNCERTAINTY AND CONSTRUCTIVE OFFENSES. PART I. ་་ The Scientific Aspect of "Law."'' In all the annals of the past, one of the most conspicuous features in the struggle for liberty has been the fight against constructive crimes, which includes that against punishment for imaginary or psychologic injuries. The condition of England, before the days of the revolution, is thus described by Edward Livingston, Secretary of State under President Jackson, and reputed to be "the greatest lawyer of his time," in his official report to the Louisiana Legislature. "The statute gave the texts, and the tribunals wrote the commentary in letters of blood, and extended its penalties by the creation of constructive offenses. The vague and sometimes unintelligible language employed in the penal statutes gave a seeming color of necessity to this assumption of power, and the English nation have submitted to the legislation of its courts, and seen their fellow-subjects hanged for constructive treason, and roasted alive for constructive felonies, quartered for constructive heresies, with a patience that would be astonishing, even if their written law had sanctioned the butchery." It appears, historically, that those baneful constructive crimes developed from several specific causes. A union of church and state resulted in punishing the mere constructive injury of heretical speech; the witchcraft superstition resulted in punishing the mere constructive cause of material injuries; the abridgment of the freedom of speech and of the press also punished psychologic crimes based upon mere constructive injuries; these, with the evils of judicial legislation in defining the criteria of guilt, were all of the sources for those evils "By special permission revised and republished from the American Law Review, for June, 1908. |