qualities of a book, but are solely and exclusively a condition or effect in the reading mind. This is evidenced in the result that it has been, and always will be, impossible to state a definition or test of obscenity in terms of the qualities of a book, or such a one that, solely by applying the test to any given book, accuracy and uniformity of result must follow, no matter who applies the test, nor such that when there is no dispute about any physical fact of present or past existence, any man may know in advance of a trial and a verdict, solely from reading the statute, what the verdict must be as to the obscenity, and consequent criminality, of every given book. Neither the statute, nor the judicially created tests of obscenity or indecency, furnish any certain advance information as to what must be the verdict of a jury upon the speculative problem of the psychological effect of a given book upon an undescribed hypothetical reader. Their verdict is, therefore, not according to the letter of any general law, but according to their whim, caprice and prejudices, or varying personal experiences and different degrees of sexual hyperæstheticism and varying kinds and quality of intelligence upon the subject of sexual psychology, or moral idiosyncracies. In consequence, every such verdict is according to a test of obscenity personal to the court or jury in such a case, and binding upon no other court or jury and not according to any general law or uniform rule. One of the reasons underlying this uncertainty is the fact that "obscenity” is not a quality inherent in a book or picture, but wholly and exclusively a contribution of the contemplating mind, and hence cannot be defined in terms of the qualities of a book or picture, but is read into them.“

(a) The first result of this uncertainty is that the statute of Congress herein involved creates no certain or general rule of conduct for the guidance of citizens, and does not enable them to know if their proposed act is in violation of the statute, and therefore every indictment and conviction under said statute is without due process of law. Unless the statute so defines the crime that by the application of its letter alone every person of ordinary intelligence must always draw the same line of

""WHAT IS CRIMINALLY OBSCENE.'" Proceedings XV. International Medical Congress, Lisbon, Portugal, April. 1906; Albany Law Journal, for July, 1906.

"LEGAL OBSCENITY AND SEXUAL PSYCHOLOGY,” in the Medico. Legai lournal, for Sept., 1907, and The Alienist and Neurologist, for Aug., 1908.

"VARIETIES OF OFFICIAL MODESTY," in the American Journal of Eugenics, for Dec., 1907; Albany Law Journal, Aug. 1908,

"FREEDOM OF THE PRESS AND OBSCENE' LITERATURE,” N. Y., 1908.

demarkation between the books or pictures which are pro hibited and those which are not, then the statute is void for uncertainty under the old maxim, "Where the law is uncertain there is no law," and consequently there is no "due process of law."

(b) Furthermore: “The doctrine is fundamental in English and American law that there can be no constructive offenses." These are of four kinds. First, where the act to be punished is by judicial construction brought within a statute whose plain and literal meaning does not cover it. In this case the statutory criteria of guilt are assumed to be certain as to meaning. The second class of constructive offenses arises where the statutory criteria of guilt are ambiguous, and the courts presume, by judicial legislation, to penalize an act which is not clearly within every possible, plain and certain meaning of the statute. Here the courts make a legislative choice as to which meaning is to be enforced. The third class of constructive offenses arises from an uncertainty (as distinguished from an ambiguity) in the statutory criteria of guilt. Here, there is a total absence of criteria of guilt, and these become wholly a matter of judicial creation (as distinguished from selection when the statute is only ambiguous). Because of the uncertainty-that is, of a total absence of definite statutory criteria of guilt-under all of the "obscenity" laws, nothing is ever unavoidably certain within the letter of the statute. It is necessary in order to secure conviction that judicial, socalled, construction, or, more accurately speaking, judicial legislation, be enacted which creates the criteria of guilt not furnished by the statute, from which it follows that all guilt hereunder is but constructive guilt, and the crime only a constructive, that is, a judicially created crime, and not due process of law.

The fourth class of constructive crimes are those which do come within the actual and literal definition of the criminal statute, but where that predicates crime upon conduct which is only a constructive, and not a real and actually achieved material injury, to any living being, nor conditioned upon any imminent danger thereof, the existence of which is determinable by any known law of the physical universe. In such a case, the reality and materiality of the injury, which is an indispensable foundation of all criminal statutes, is entirely absent, except as a matter of legal fiction, and not as a material actuality described in the letter of the law. The same proposition may be thus stated: One is being punished for a constructive crime whenever the alleged crime consists only in the dissemination of ideas, if under the statute the penalty attaches upon conditions other than that the ideas have actually resulted in material injury to some one. Every psychologic crime, so long as it remains a mere psychological offense whose injury is constructive only, can never become anything except a constructive crime. Such purely constructive wrong and constructive crime cannot be penalized in any country whose constitution was ordained to promote liberty, and therefore such a statute cannot constitute "due process of law.”

4. The statute in practical operation violates the constitutional guarantee against er post facto laws.

Syllabus of the argument: The second result of this uncertainty of the statute is that every indictment and conviction under said statute is always according to an ex post facto law or standard of judgment, specially created by the court or jury for each particular case. The Congress of the United States has no power to authorize a jury to determine guilt or crime according to varying personal standards, such as must control the opinion of a jury on the psychological tendency of a book upon an undescribed hypothetical reader, and which standard, because it is personal to the juror, in the nature of things cannot be known at the time the alleged act was committed, nor before the rendition of a verdict thereon.

A conviction and punishment under such circumstances is always by virtue of ex post facto legislation on the part of the court or jury, and is none the less unconstitutional because the attempted delegation of power to enact it was made before the conduct to be punished. All criteria of guilt must be found in a prior statute.

S“THE SCIENTIFIC ASPECT OF 'DUE PROCESS OF LAW,'” in The American Law Review, for June, 1908.

"STATUTORY UNCERTAINTY AND 'DUE PROCESS OF LAW,'" in The Central Law Journal, for Jan. 3, 1908.

"THE HISTORÍCAL INTERPRETATION OF 'LAW,'" in The Albony Law Journal, for April, 1908.

“ 'DUE PROCESS OF LAW,' IN RELATION TO STATUTORY UNCERTAINTY AND CONSTRUCTIVE OFFENSES,” N. Y., 1908.

“CONSTRUCTIVE OFFENSES DEFINED," in The Central Law Journal, Dec. 18, 1908.

€“THE SCIENTIFIC ASPECT OF 'DUE PROCESS OF LAW,'" in The American Law Review, for June, 1908.

"STATUTORY UNCERTAINTY AND 'DUE PROCESS OF LAW,'" in The Central Law Journal, for Jan. 3, 1908.

"THE HISTORICAL INTERPRETATION OF LAW,'" in The Albany Low Journal, for April, 1908.

" 'DUE PROCESS OF LAW IN RELATION TO STATUTORY UNCER. TAINTY AND CONSTRUCTIVE OFFENSES,” N. Y., 1908.

5. The statute in its practical operation violates the seventh amendment to the Constitution in this: By reason of the want of definition of the crime, by a statutory statement of the criteria of guilt, the courts submit to the jury a determination of the question of law as to what shall constitute "obscenity. Congress has no power to make juries the judge of the law, especially not in cases wherein they were not authorized to be such judges under the common law of England. No such acts as are now punished under "obscene” literature were ever included under the common law crime of "obscene libel.”

Furthermore, Fox's libel act, which made English juries in libel cases the judges of the law, as well as of the facts, did not pass the English Parliament until 1792.

ARE THE FOREGOING OPEN QUESTIONS ? Is the constitutionality of our moral censorship of literature by the post office department still an open question ? An answer to this problem can be satisfactorily reached only by analyzing all the judicial mention of the subject, in the light of the foregoing assignable reasons for asserting the unconstitutionality of these laws, and in the light of the following words from Chief Justice MARSHALL:

"It is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which these expressions are used. If they go beyond the case they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The question actually before the court is investigated with care and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing in all other cases is seldom investigated."

The first case to make reference to the postal censorship of the mails is Ex Parte Jackson, 96 U. S. 727.

This was an application for a writ of habeas corpus and certiorari, after conviction, for mailing lottery matter. The only question raised in the argument for the petitioner is summed up in these words:

"So long as the duty of carrying the mails is imposed upon Congress, a letter or packet which was confessedly mailable matter at the time of the adoption of the Constitution cannot

**OBSCENE LITERATURE UNDER THE COMMON-LAW," Albany Low Journal, May, 1907.

"Cohens 1. Virginia, 6 Wheat. 398. See, also, Corn Exchange Bank v. Per body, 111 App. Div. 563, 98 N. Y. Sup. 78.

"8

be excluded from them, provided the postage be paid and other regulations be observed. Whatever else has been declared to be mailable matter

all of which were unknown to the postal system when the convention concluded its labor in 1787, may in the discretion of Congress be abolished.”

No other question was raised and no argument based upon the construction of the expressed or implied power of Congress was presented. To enforce the above argument and reduce the contrary position to an absurdity, as it was believed, counsel for the convict said: “If Congress can exclude from the mail a letter concerning lotteries which have been authorized by State legislation, and refuse to carry it by reason of their asserted injurious tendency, it may refuse to carry any other business letter."

No arguments of any nature as to the correctness of such suggestion of power, or the limitations, if any, by which the Constitution does or does not hedge about this alleged arbitrary power, were even mentioned, much less discussed. The Attorney-General rested the contrary view solely upon the dogmatic and very doubtful assertion that "if there is a right to exclude any matter from the mails, the extent of its exercise is one of legislative discretion.”

The court did not have before it any question except as to lotteries, and then only in so far as it related to the power of Congress to declare non-mailable what custom had sanctioned to be mailable at the time of the adoption of the Constitution. The court indulged in some dictum based upon the loose talk of counsel concerning side issues. In that dictum, however, the court distinctly negatives the idea suggested by the United States attorney, that there are no limits to the power of regulating the mails, and some such limitations are pointed out by the decision without negativing the existence of other limitations.

The court among other things said: “The validity of legislation prescribing what should be carried and its weight and form and the charges to which it should be subjected has never been questioned. What shall be mailable has varied at different times, changing with the facility of transportation over the post roads. At one time only letters, newspapers, magazines, pamphlets and other printed matter, not exceeding eight ounces in weight were carried; afterwards books were added to the list, and now small packages of merchandise, not