statutory "obscenity” be determined and a verdict of guilt found by such persons, and if not why not?

"I have several times observed in hysterical females scruples relative to the satisfaction of natural needs, to the action of chewing, eating, micturation, defecation, which have all come to be regarded as revolting acts, which must be dissembled like crimes."71

The present law does not in the slightest degree protect one accused of obscenity from the whim and caprice of judges or jurors who may be thus afflicted with extraordinary sexual sensitiveness. Even the "tests of obscenity" created by julicial legislation leave the criteria of guilt just as much in doubt.

By evidences gathered from similar sources it can be demonstrated that there is not one single fact of obscenity concerning which all humanity is agreed. Even what is to as the most revolting "obscenity” is not so to all persons. Every known form of sexual perversion, from sadism, lust, murder, up and down, has been credited with the endorsement of some god and practised and sanctified by some religious society. Those who want proof of the fact need only to make themselves fairly expert in sexual psychopathy, and then study all the facts of sex-worship among the ancient Greeks and Egyptians, also the old initiations into the priesthoods of the native Mexican religions, and the sacred snake dance among the Moquis. If proof is wanted as to its expression in art, we have it in the secret Cabinet of the Museum of Herculaneum and Pompeii and other places. If doubt still remains it only becomes necessary to get the confidence of one whose sexual impulse has become completely perverted, and ask such a one about his shame when indulging only in the presence of those who are perverted like himself.

Within the available limits one can only hint at the source and character of the evidence which contradicts the judicial dictum upon the questions of science here involved. To exhaust the evidence would require a republication of volumes of ethnographical research, and most of the literature upon sexual psychology. The principal books upon the latter subject are listed for further study.

Additional arguments will be offered in the succeeding chapters to demonstrate anew the subjective character of all that is generalized in the word “obscene" and the consequent unescapable uncertainty of the criteria of guilt under these obscenity statutes.

"Psychopathia Sexualis by Krafft-Ebing. Suggestive Therapeutics in Relo sion to Psychopathia Serualis, Schenk Notzing... Morbid Manifestations, by Tarnowsky. Studies in the Psychology of Sex, by Dr. Havelock Ellis, and especially that volume devoted to "Modesty." This literature, by exhibiting the infinite variety of foci about which center the sentiments of modesty, prove to a demon. stration that we have no innate sense of modesty, nor any common standards by which to determine its opposite, nor any uniformity in the ideas which excite in us those emotions of aversion which constitute our conviction that a book or picture is obscene.

CHAPTER XIV.

PSYCHOLOGIC STUDY OF MODESTY AND

OBSCENITY.

Syllabus of the Argument: Through a study of the mental processes by which we acquire the general idea symbolized by the word “obscene”, (or its opposite) and of those by which we usually form a judgment as to the modesty or obscenity in a particular case, it will be redemonstrated that the word “obscene” does not stand for any sense-perceived quality of literature or art but is distinguished only by the likeness or unlikeness of particular emotions associated with an infinite variety of mental images. Therefore, obscenity is only a quality or contribution of the viewing mind-a subjective state—which, by synchronous suggestion or prior experience, is linked, in the contemplating mind, with the particular matter presented by the contemplated book or picture or with the special conditions under which these are being viewed. When this association, thus formed, asserts itself in consciousness the subjective "obscene" attachment is erroneously ascribed to and read into the objective factor of its conceptual associate. All this is only a technical way of telling how the "obscenity” of the viewing mind is referred to the book or picture before it.

As supporting these claims we see the fact that "obscenity” 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 suspected motive, or in terms of dreaded emotions imagined to exist in the mind of some superstitious reader.

With some knowledge of the psychologic processes involved 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 quality of literature, and not-as in fact it is only a contribution of the reading mind. By critical analysis, we can exhibit separately the constituent elements of other conceptions, as well as of our general idea of the “obscene.” By a comparison, we shall discover that their common element of unification may be either subjective or objective. Furthermore, it will appear that in the general idea, symbolized by the word "obscene," there is only a subjective element of unification, which is common to all obscenity, and that herein it differs from most general terms. In the failure to recognize this fundamental unlikeness between different kinds of general ideas, we shall discover the source of the popular error, that "obscenity” is a definite and definable, objective quality of literature and art.

THE PSYCHOLOGIC ARGUMENT. 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, meeting in an infinite number of different angles.

What is the operation when we classify all this infinite variety 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 common knowledge, while others become known only as we develop 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 belong to every particular triangle; and these characteristics, always alike in all triangles, are abstracted from all the infinite different shapes in which particular triangles appear; and these essential and constant qualities, thus abstracted, are generalized as one universal conception, which we symbolize by the word "triangle."

Here it is important to bear in mind that these universal, constituent, 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 or its operation, so the unifying elements of all triangles exist in the nature of things, prior to and independent of our knowledge of them. It is because these unifying elements, which we thus generalize under the word "triangle," 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 shall 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 difference between these two classes of general terms, judges and the mob alike erroneously assumed that the “obscene," like the "triangle,” must have an existence outside their own emotions, and, consequently, they were compelled to indulge in that mystifying verbiage which the courts miscall "tests of obscenity.' COMMONPLACE FACTORS OF THE PSYCHOLOGIC ARGUMENT.

First of all, we must discover what is the universal constituent, unifying element common to all obscenity. Let us begin with a little introspection, and the phenomena of our everyday 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