viction, yet not according to the letter of any statute, but according to the whim, caprice, prejudice or superstition of those who shape the emotions of a jury, wholly reasonless, as to this particular subject. The professional vice-hunters can and do boast that practically they never fail to convict. They ascribe this to the inerrancy of their judgments, and point to the uniformity of convictions as an evidence that they exercise a wise discretion in the enforcement of a law which they admit is uncertain und therefore permits of abuses. In fact, this result is a product of ignorance and prejudice and is to be explained by the uncertainty of the statute and the fact that modesty is but fear of the judgment of others (the respectable prosecutors). When the verdict of the jury reaches an appellate tribunal, the uncertainty of the law makes impossible a reversal on the question of obscenity. There being no exact standard, no thermometer of obscenity, by which its relative degrees can be measured, and the precise freezing point of modesty determined, the appellate court in its helplessness practically never can reverse the judgment, because, their own emotional proprieties being in the least offended, the conviction of obscenity never seems to be without some "evidence" to support it.

This uniform affirmance of every verdict, like the original uniformity of conviction, is made unavoidable by the psychologic nature of modesty and the uncertainty of the statute and not in either case by the letter of the law. And so it may be even when we come to a discussion of the constitutional questions involved. If the emotional predisposition of the judge is but properly enlisted on the side of the “moralists,” of hysteria, we may expect to find that mere figures of speech will be mistaken for analogies, question-begging epithets will take the place of fact and argument, and mere empty verbalisms, born of self-righteous emotions, will have the probative force of a mathematical demonstration to the mind of an average judge, who has not been warned against this dangerous source of error. Even some who have been warned, as I am now trying to warn them, will still lack that high intellectual development which alone makes possible a subordination of the emotions to the cold-logic processes.

Because men are ignorant of sexual psychology, they lack insight to discover the valuelessness of the "moral" emotions of others, and being without that clarity of vision which could frame a satisfactory defense against the personal application to self of such unreasoned "moral judgments" by others, it usually follows that they have not the intelligent disposition or courage to attack these laws. Even the attorneys employed to defend such cases have quite uniformily found their intellectual acumen paralyzed in the conflict with their own emotional approval of these laws. In the half-conscious fear of the like unreasoned and more intense emotions of their prudish neighbors, who perhaps are the unconscious victims of sexual hyperaestheticism, these attorneys quite unavoidably apologize for defending such a client. By his very demeanor the defendant's attorney insinuates a verdict of guilty into the mind of the judge and juror. The same intellect-benumbing influence has thus far made it impossible for any attorney employed in over 5000 of such cases to even discover that there are constitutional questions which it was his duty to present in defense of his client. Where such conditions prevail, no lawyer is doing his duty if he does not open a discussion of the constitutional problems by an attack upon this adverse mental predisposition—by a plea for open-mindedness.

In the past ten years, sexual psychology has made long initial strides. A few besides the specialist are beginning to see that, like witches, obscenity exists only in the minds of those who believe in it. Of this more will be said hereafter. Knowing this, these few are ceasing to fear the emotional judgment of salacious ascetics, because they are now accounted for by a diseased sex-sensitiveness and are seen not to be entitled to any moral valuation. When lawyers are so clean-minded as to believe, and be firmly and scientifically convinced, as later on we expect to convince them, that "unto the pure all things are pure," then, and not till then, can there be any open-minded and fearless inquiry into the constitutionality of these laws.

Only in such confident clean-mindedness can we hope for the moral courage to resist the suggestive intimidation of prurient prudes, and replace the befogging intensity of emotional aversion to my contention with the lucidity of scientific evidence and logical argument. When the completed presentation of the case is made to such a court, our present laws against obscenity must disappear, perhaps to be replaced by others which will be more intelligible and consonant with a decent and enlightened conception of constitutional liberty.

Prof. Wm. James, of Harvard University,' wrote this: "Varieties of Religious Experiences, p. 74.

a

“The truth is that in the metaphysical and religious sphere, articulate reasons are cogent for us only when our inarticulate feelings of reality have already been impressed in favor of the same conclusion.” In the very nature of our being, in its present state of evolution, the whole matter of sex is so inseparably involved with mystical religious and other emotions, that in all discussion of sex subjects, even more so than in the field of metaphysics and religion, we assume to “know because we feel and are firmly convinced because strongly agitated.” Out of this very exceptional condition comes the fact that, no matter how highly the critical faculty of his mind may be developed in its application to other subjects, when it comes to matters of sexual topics scarcely one man in a million can reason calmly; for his "moral" emotions will dethrone his reason, and mere verbalisms, and righteous vituperation will take the place of logical facts of experience, and thus articulate seemings of reason will be cogent enough to confirm any conclusion which the inarticulate "moral" feelings have already predisposed us to believe. This will usually be so notwithstanding these feelings are based upon mere unreasoned sympathetic imitation and emotional association, imposed by the mere thoughtless reiteration of customs, which often have their source and derive their special character from the vehemence of those who are afflicted with psycho-sexual abnormity, (eroto phobia) often claiming religious indorsement, and which the rest of us, without rationally well defined ethical convictions, will adopt, though ourselves healthy-minded. Upon this subject we shall yet have much to say, especially when later in its relation to “Due Process of Law” we come to discuss the psychology of modesty more in detail.

The practical problem is to discover how we are to insure in ourselves that open-mindedness to the realities of reasoning which the importance of the situation imposes, and the peculiar psychologic factors of the problem make so difficult? Simply by remembering and submitting ourselves to the control of a very few maxims of ethical science as contra-distinguished from “ethical” sentimentalism. Wordsworth Donisthorpe, M.P., puts it thus: “No man has ever yet succeeded in defining virtue a priori."? To bear that in mind and always act upon it would all but destroy moral sentimentalism. Dr. Edward Westermarck, a very distinguished Swedish scholar, Filme implies a similar truth when he is writing of "the error we 'A Plea for Liberty, p. 73-74.

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commit by attributing objectivity to our moral estimates,” the folly of which he points out in the following words: “The quantity of moral estimate is determined by the intensity of the emotions which their object tends to evoke under exactly similar circumstances. "3 Prof. Munsterburg, of Harvard, expresses it thus: "No subjective feeling of certainty can be an objective criterion for the desired truth.” More will be said

4 upon this subject when we come to study the uncertainty of the "moral" test of "obscenity."

If, then, the reader desires to avoid moral sentimentalizing in favor of the rational ethics, and further desires to approach the constitutional questions herein involved with that openmindedness which can come only as an accompaniment to subjugated emotions, we must first of all resolve to be guided only by objective criteria for the desired truth. Having resolved to be thus guided, let us make a little preliminary inquiry as to what may be and has been suppressed under these laws, and determine, by such tests as we have now agreed to use, whether any real question of morality is involved. This discussion, and more of a kindred nature which is to follow, has for its objects: First, to increase the intellectual hospitality for the constitutional argument to follow ; second, to exhibit some of the general considerations upon which our constitutional guarantee of freedom of the press was adopted, and thus furnish us helpful clues to the interpretation of that clause of the Constitution. To this end will be exhibited some of the evils which come from such laws, and this will be followed by a general vindication of the right of every adult citizen to know all that can be known even about the subject of sex.

"Origin and Development of Moral Ideas, v. 1, p. 18. *Times Magazine, March, 1907, p. 428.

CHAPTER III.

NO "OBSCENE" LITERATURE AT COMMON LAW

Revised from The Albany Law Journal, May, 1907

For nearly a century unintelligent reformers have asserted, and unindustrious attorneys have repeated the statement, and courts, made credulous by a passionate hope that it might be true, have, by way of dictum, affirmed that obscenity, as we now understand the term, in the light of our modern puritanism, was an offense at common law.

The truth or error of the statement has several important bearings. When we come to a discussion of the meaning of "freedom of the press" it may be of importance to know just how much liberty of the press was enjoyed at the time of the adoption of our Constitution.

In studying the present outrageous suppression of medical and controversial literature under the pretense of suppressing "obscenity," I am reminded of this cynical statement of Sergeant Hill: “When judges are about to do an unjust act, they seek for a precedent in order to justify their conduct by the faults of others.” But there is another reason for destroying the professional illusion about obscenity at the common law, because by destroying the veneration, often superstitious, which lawyers and courts give to supposed precedent, we may also increase their intellectual hospitality for the constitutional argument which follows:

Going back to the sixteenth century, we find no such general prudish sentimentalizing as is now current over the "obscene” of the nude human, nor over a robust frankness in the discussion of sex-problems. Of course, even before this, we find ascetics of unbalanced mind, who declaimed against all that stimulated their unhealthy sex-sensibilities, but no law as yet had made their diseased condition the standard of virtue. Not being able to suppress the more healthy naturalness of others, they usually fled to some mountain or desert retreat, to