Jurgen and the law

by Unknown

7—In conclusion.

No book, no matter by whom it is written, should be read without an appreciation of the motive of its writing. It is the embarrassment of a case such as this, that the very fact of an indictment, the notoriety attending it, makes it difficult to sit down to the reading with the frame of mind that is present when we take a book from a library shelf. However one may attempt to resist it, there is always present a certain feeling, if somebody has said that the book is indecent. That suggestion can influence minds, even the most philosophical. In Lord Haldane’s most recent book, “The Philosophy of Humanism” (p. 75), he quotes from the memoirs of the great German philosopher, Hegel, as illustrating how suggestion can lead to conceptions:—

“In my youth I remember hearing a city magistrate complain that book writers were going too far, and trying to rout out Christianity altogether. Some one, it appeared, had written a defense of suicide. It was horrible, too horrible! On further inquiry it turned out that the book in question was ‘The Sorrows of Werther’.”

The last resort against this influence of suggestion is now made. The book is submitted to this court for judicial scrutiny, guided by the tests of the law.

Dated October 16, 1922.

Respectfully submitted,

Goodbody, Danforth & Glenn,

Attorneys for Defendants,

27 Cedar Street,

New York City.

Garrard Glenn

(42 Broadway),

William U. Goodbody,

William L. Glenn,

of Counsel.

DECISION OF JUDGE CHARLES C. NOTT

IN PEOPLE VS. HOLT, McBRIDE

& CO., ET AL

People

vs.

Holt, McBride & Co. et al.

The defendants herein, at the close of the People’s case, have moved for a direction of acquittal and the dismissal of the indictment on the ground that the book “Jurgen” on the possession of which the indictment is based, is not an “obscene, lewd, lascivious, filthy, indecent or disgusting book” within the meaning and intent of section 1141 of the Penal Law, for the alleged violation of which the indictment has been found.

I have read and examined the book carefully. It is by Mr. James Branch Cabell, an author of repute and distinction. From the literary point of view its style may fairly be called brilliant. It is based on the mediæval legends of Jurgen and is a highly imaginative and fantastic tale, depicting the adventures of one who has been restored to his first youth but who, being attended by a shadow in the guise of the shadow of his old self, retains the experience and cynicism of age which frustrates a perfect fulfillment of his desire for renewed youth.

The adventures consist in wanderings through mediæval and mythological countries and a sojourn in Hell and Heaven. He encounters beings of mediæval folk-lore and from classical Mythology. The most that can be said against the book is that certain passages therein may be considered suggestive in a veiled and subtle way of immorality, but such suggestions are delicately conveyed and the whole atmosphere of the story is of such an unreal and supernatural nature that even these suggestions are free from the evils accompanying suggestiveness in more realistic works. In fact, it is doubtful if the book could be read or understood at all by more than a very limited number of readers.

In my opinion the book is one of unusual literary merit and contains nothing “obscene, lewd, lascivious, filthy, indecent or disgusting” within the meaning of the statute and the decisions of the courts of this state in similar cases. (See Halsey v. New York Society, 234 N. Y. 1; People v. Brainard, 192 App. Div. 116; St. Hubert Guild v. Quinn, 64 Misc. 336.)

The motion, therefore, is granted and the jury is advised to acquit the defendants.

STATUTES RELATING TO THE PUBLICATION,

SALE, ETC., OF OBSCENE

LITERATURE

NEW YORK STATUTES

Penal Law—Sections 1141 and 1143

Sec. 1141. Obscene prints and articles. 1. A person who sells, lends, gives away or shows, or offers to sell, lend, give away, or show, or has in his possession with intent to sell, lend or give away, or to show, or advertises in any manner, or who otherwise offers for loan, gift, sale or distribution, any obscene, lewd, lascivious, filthy, indecent or disgusting book, magazine, pamphlet, newspaper, story paper, writing, paper, picture, drawing, photograph, figure or image, or any written or printed matter of an indecent character; or any article or instrument of indecent or immoral use, or purporting to be for indecent or immoral use or purpose, or who designs, copies, draws, photographs, prints, utters, publishes, or in any manner manufactures, or prepares any such book, picture, drawing, magazine, pamphlet, newspaper, story paper, writing, paper, figure, image, matter, article or thing, or who writes, prints, publishes, or utters, or causes to be written, printed, published, or uttered, any advertisement or notice of any kind, giving information, directly or indirectly, stating, or purporting so to do, where, how, of whom, or by what means any, or what purports to be any, obscene, lewd, lascivious, filthy, disgusting or indecent book, picture, writing, paper, figure, image, matter, article or thing, named in this section can be purchased, obtained or had or who has in his possession, any slot machine or other mechanical contrivance with moving pictures of nude or partly denuded female figures which pictures are lewd, obscene, indecent or immoral, or other lewd, obscene, indecent or immoral drawing, image, article or object, or who shows, advertises or exhibits the same, or causes the same to be shown, advertised, or exhibited, or who buys, owns or holds any such machine with the intent to show, advertise or in any manner exhibit the same; or who,

2. Prints, utters, publishes, sells, lends, gives away or shows, or has in his possession with intent to sell, lend, give away or show, or otherwise offers for sale, loan, gift or distribution, any book, pamphlet, magazine, newspaper or other printed paper devoted to the publication, and principally made up of criminal news, police reports, or accounts of criminal deeds, or pictures, or stories of deeds of bloodshed, lust or crime; or who,

3. In any manner, hires, employs, uses or permits any minor or child to do or assist in doing any act or thing mentioned in this section, or any of them,

Is guilty of a misdemeanor, and, upon conviction, shall be sentenced to not less than ten days nor more than one year imprisonment or be fined not less than fifty dollars nor more than one thousand dollars or both fine and imprisonment for each offense.

Sec. 1143. Mailing or carrying obscene prints and articles. A person who deposits, or causes to be deposited, in any post-office within the state, or places in charge of an express company, or of a common carrier, or other person, for transportation, any of the articles or things specified in the last two sections, or any circular, book, pamphlet, advertisement, or notice relating thereto, with the intent of having the same conveyed by mail or express, or in any other manner, or who knowingly or wilfully receives the same, with intent to carry or convey, or knowingly or wilfully carries or conveys the same, by express, or in any other manner except in the United States mail, is guilty of a misdemeanor.