then the mentor of every English and American lawyer, joined with the witch-burners in bearing testimony to the existence of these spook-humans, just as our own courts to-day join with the obscenity-hunters to affirm that obscenity is in a book and not in the reading mind, and that therefore the publisher, and not the reader, shall go to jail for being "obscene."

Blackstone said: “To deny the possibility, nay, actual existence of witchcraft and sorcery is at once flatly to contradict the revealed word of God in various passages of both the Old and New Testament, and the thing itself is a truth to which every nation in the world hath in its turn borne testimony, either by example seemingly well tested, or by prohibitory laws which at least suppose the possibility of comrr erce with evil spirits."'20

And yet when men ceased to believe in witches, they ceased to be, and so when men shall cease to believe in the "obscene" they will also cease to find that. Obscenity and witches exist only in the minds and emotions of those who believe in them, and neither dogmatic judicial dictum nor righteous vituperation can ever give to either of them any objective existence.

In the “good old days,” when a few, wiser than the rest, doubted the reality of witches, the doubter, if not himself killed as being bewitched, was cowed into silence by an avalanche of vituperation such as "infidel," "atheist,” or “emissary of Satan," "the enemy of God," "the anti-Christ,” and some witch-finder would get on his trail to discover evidence of this heretic's compact with the devil; as is the case with obscenity, those seeking to destroy belief in witchcraft were accused of seeking to abolish morality, and as a successful scarecrow to prove this it was argued by John Wesley and others, that to give up witchcraft was in effect to give up the Bible. Let us not be frightened by such conjectural morality, but rather inquire boldly and frankly as to the objective import and reality of all that we punish as dangerous to society under the name of "obscenity.”

QUESTION-BEGGING EPITHETS NOT ARGUMENT. How this attitude toward witchcraft is duplicated in the attitude of a large portion of the public toward those who disbelieve in the objectivity of "obscenity"! Whether obscenity is a sense-perceived quality of a book, or resides exclusively in the reading mind, is a question of science, and as such, a legitimate matter of debate. Try to prove its non-existence by the scientific method, and the literary scavengers, instead of answering your argument by showing the fallacy of its logic or error of fact, show their want of culture, just as did the witch-burners. They tell you that you are (quoting from Mr. Comstock) "either an ignoramus or so ethereal that there is no suitable place on earth for you,” except in jail. They further hurl at you such unilluminating epithetic arguments as “immoral," "smut-dealer,” “moral-cancer planter,” etc., etc. Such epithets may be very satisfying to undeveloped minds, but they will not commend themselves very highly to any person wishing to enlighten his intellect upon the real question at issue. Again we say: This is a matter of science, which requires fact and argument and cannot be disposed of by question-begging villification. It is a regrettable fact that the “moral” majority is still too ignorant to know that such question-begging epithets when unsupported are not argument, and its members are too obsessed with sensual images to be open to any proof against their resultant "obscene" superstition.

Think it over and see if when you cease to believe in the existence of “obscenity,” you must not also cease to find it. If that be true, then it exists only in the minds and emotions of those who believe in the superstition. Empty your mind of all ideational and emotional associations which the miscalled "pure" people have forced into your thoughts. Having done this, you may be prepared to believe that "unto the pure all things are pure; but unto them that are defiled and unbelieving is nothing pure; but even their mind and conscience is defiled."21 Not till thus cleansed can you join in these words: "I know, and am persuaded by the Lord Jesus, that there is nothing unclean of itself, but to him that esteemeth anything to be unclean, to him it is unclean."22

THE JUDICIAL EPITHETIC ARGUMENT. The courts are more refined, though not more argumentative or convincing, in their manner of denouncing dissen

sex.

ters. The judicial formula is this: “When such matters are said to be only impure to the over-prudish, it but illustrates how familiarity with obscenity blunts the sensibilities, depraves good taste, and perverts the judgment.”23 Again we ask for fact and argument, not question-begging dogmatism. The statute furnishes no standard of sex sensitiveness, 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 legislative authority upon a judge, though in these cases all courts are unconsciously presuming to exercise it.

Furthermore, it is not clear that "blunted sensibilities" are not a good kind to be encouraged in the matter of

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 discuss matters of liver or digestion with an absolute freedom from all lascivious feelings? Why is not that condition preferable to the diseased sex-sensitiveness, so often publicly lauded when parading 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 publications? It requires argument and fact, rather than "virtuous" platitudes, to determine which is the more healthy-minded attitude toward these subjects. I plead for scientific research, not the brute force of blind dogmatism and cruel authority. Let us remember that "in scientific inquiry the ability to weigh evidence goes for much, but facility in declamation (and vituperation) goes for little.”24

If, in spite of the argument by vituperation, a person refuses to submit "with humble prostration of intellect” 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 examine 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.

FEAR-INSPIRED AVOIDANCE OF THE ISSUE. There is another particular in which the controversy over witchcraft resembles the controversy concerning the

2345 Fed. Rep. 423.
34 Fiske's Cosmic Philosophy, v. 2, p. 173.

suppression of the so-called "obscene." The earlier opponents of witchcraft always deemed it most important to anticipate and defend themselves against the influence of question-begging epithets, such as “infidel” and “atheist," etc. So we find them always explaining that this is unjust because they do not really deny the being and existence of witches, but controvert only their alleged mode of operation. Thus John Webster, in 1677, defends the whole class of anti-witchmongers by arguments of which the following is a sample: "If I deny that a witch cannot fly in the air, nor be transformed or transubstantiated into a cat, a dog, or a hare, or that a witch maketh any visible covenant with the devil or that he sucketh on the bodies, or that the devil hath carnal copulation with them, I do not thereby deny either the being of witches, nor other properties that they may have, for which they may be so-called: No more than if I deny that a dog hath rugibility (which is only proper to a lion) doth it follow that I deny the being of a dog."26

Similar to this is it with the opponents of the censorship of obscenity. Every little while we have an explosive protest against the suppression of some book or work of art, but these moral heretics always hasten to explain their firm belief in "obscenity" as a quality of other books or pictures, but they protest that it does not exist where the censor or court thought. They firmly believe that "truly obscene literature" ought to be suppressed, but they assert that a great blunder has been made in suppressing the particular book in which they are unable to discover any obscenity. They hasten to approve the arbitrary power conferred by a criminal statute which fails to furnish the criteria of guilt, but complain that the arbitrary power has been abused. They like a government by the lawless will of men rather than a government by officials who are equally subjected to the law, but they prefer it should be their own lawless will and not that of another with different ideals that should govern.

As for me, I am not content to protest merely against the abuse of arbitrary power; I want that power itself destroyed. I am not content to deny the mode in which witches and obscenity are alleged to impair the morals of humanity. I demand that a searching and fearless inquiry be made as to the objective reality and essential characteristics of obscenity as well as witches. All this is said not by way of apology, but as a plea for open-mindedness for what follows. "The Displaying of Supposed Witchcraft, p. 10.

a

CHAPTER XIII.

ETHNOGRAPHIC STUDY of MODESTY and

OBSCENITY.

SYLLABUS of CONTENTIONS: The ethnographic facts, a few of which are herewith presented, show that there is not a single element of objective nature which is a constituent factor of every conception of either modesty or obscenity. Thus it will be proven that the only unifying element common to all conceptions of modesty or of obscenity must be subjective -must be in the mind of the contemplating person, not in the thing contemplated. Expressed in popular English, the proposition is this: All obscenity is in the viewing mind, not in the book or picture. Since “obscene" does not generalize any fact of objective nature, it becomes impossible to define it in terms of the qualities of a book or picture, or in any terms whatever that furnish a certain or uniform standard, the application of which compels such uniformity of judgment that every one can, with unquestionable certitude, determine in advance just what must be the judgment of every court or jury as to the obscenity of any given book or picture. Later, it will be argued that because of this uncertainty the statute is unconstitutional.

THE ETHNOGRAPHIC FACTORS.

Perhaps it is best to begin our study of modesty and nudity with a statement of conditions in ancient Greece when its civilization had reached that high place which, in some respects, we have not yet excelled. In all that follows we are always to bear in mind that we are inquiring into the innateness and uniformity of the human sense of modesty and obscenity, to see if it is possible to know from the mere reading of the statutes penalizing "obscene, indecent, filthy or disgusting” books or pictures, what conception of modesty, or what kind and degree of sex-sensitiveness, determines what is prohibited.

In Greece, “it was lawful in some cities for courtezans