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

Now, to publish accounts of such "unmanly vices" would almost certainly be adjudged "obscene" and had it been so considered in 1791 the defendant would in this case have been convicted. Lord Kenyon, in his opinion, quoted with approval I Hawkins Pleas of the Crown as follows: "The chief cause for which the law so severely punishes all offenses of this nature [libels] is the direct tendency of them to a breach of the public peace, by provoking the parties injured, and their friends and families to acts of revenge." (Citing 1 Haw. P. C., chap. 73, sec. 3.) The court continues: "Now to say, in general, that the conduct of a dead person can at no time be canvassed; to hold that even after ages are passed, the conduct of bad men cannot be contrasted with the good, would be to exclude the most useful part of history." It was accordingly held that the indictment stated no offense, or, in other words, to publish of a dead person accounts of "unmanly vices and debaucheries" was not a libel, either obscene or otherwise.R

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

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

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

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

9

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

With knowledge of, and in spite of the decision in King v. Curl, Hawkins, in his "Pleas of the Crown," thus states the common law on the subject: "However, it seems clear, that no writing whatsoever is to be esteemed a libel, unless it reflects upon some particular person; and it seems that a writing full of obscene ribaldry, without any kind of reflection upon anyone, is not punishable, as I have heard it agreed in the court of King's bench."10

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

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

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

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

If any further proof was necessary to show the relative indifference to so-called obscenity as such, we may find it in the statement of Erskine in his argument in the case of Thomas Carnau. He said: "I should really have been glad to have cited some sentences from the one hundred and thirteenth edition of Poor Robin's Almanack, published under the revision of the Archbishop of Canterbury, and the Bishop of London, but I am prevented from doing it by a just respect for the house. Indeed, I know of no house-but a brothel-that could suffer 10 Hawkins' Pleas of the Crown, vol. 2, p. 130, Seventh Ed. 1795. "Rex v. Cruden, 2 Campbell, 89.

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

If still more proof is desired we have it in the literature of pre-revolutionary times. When, in 1888, Vizetelly, a celebrated English publisher, was arrested for "obscenity" in the vending of Zola's novels, he published a unique defense. After exposing and denouncing the falsehood published to arouse public opinion, he re-published "EXTRACTS PRINCIPALLY FROM ENGLISH CLASSICS, SHOWING THAT THE LEGAL SUPPRESSION OF M. ZOLA'S NOVELS WOULD LOGICALLY INVOLVE THE BOWDLERIZING OF SOME OF THE GREATEST WORKS OF ENGLISH LITERATURE." These extracts made a good sized volume, and included Shakespeare, Beaumont and Fletcher, Massinger, Defoe, Dryden, Swift, Prior, Sterne, Fielding, Smollet, and scores of others. I am informed that these passages were deemed so "obscene" that the court punished him for contempt for having even presented them in argument. And yet, not one of these was ever the subject of prosecution at common law.

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

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

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

CHAPTER IV.

THE ETIOLOGY and DEVELOPMENT

OF OUR

CENSORSHIP of SEX-LITERATURE.

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

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

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

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

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

1See "OBSCENITY AND WITCHCRAFT, TWIN SUPERSTITIONS," in Physical Culture for June, 1907; "WHAT IS CRIMINALLY OBSCENE?" Albany Law Journal, July, 1906.