II
It is now a trifle less than three years ago that a Mr. Walter J. Kingsley, a theatrical press agent, sent to the literary editor of a New York newspaper a letter[1] directing attention to James Branch Cabell’s Jurgen as a source of lewd pleasure to the sophisticated and of menace to the moral welfare of Broadway. Hitherto Jurgen had found some favor with a few thousands of discriminating readers; it had been advertised—with, its publishers must now admit, a disregard of the value of all pornographic appeal—as literature. Critics, with varying degrees of enthusiasm, had applauded the book as a distinguished addition to American letters; three editions had been printed and the tale promised to enjoy the success to which its wit, its beauty and the profundity of its theme entitled it. No one, until Mr. Kingsley broke silence, had complained of Jurgen as an obscene production; no letters of condemnation had been received by the publishers; and the press had failed to suggest that decorum, much less decency, had anywhere been violated.
Mr. Kingsley’s letter altered affairs. Immediately a chorus in discussion of Jurgen arose. In the newspapers appeared many letters, some in defense of the book, others crying Amen to Mr. Kingsley. Within a week, the merry game of discovering the “key” to Jurgen was well under way and a pleasant, rather heated controversy had begun. In the upshot some one sent a clipping of the Kingsley letter to Mr. John S. Sumner, secretary of the New York Society for the Suppression of Vice, calling upon him to do his duty. Mr. Sumner procured a copy of the book, and, on January 14th, 1920, armed with a warrant, he entered the offices of the publishers, seized the plates and all copies of the book and summoned the publishers to appear in court the following day on a charge of violating section 1141 of the Penal code.[2]
Thereafter the record is uneventful. Mr. Sumner’s complaint[3] was duly presented and the case was called for formal hearing in the magistrate’s court on January 23. Upon that date the defendants waived examination and the case was committed for trial in the Court of Special Sessions. The trial was set for March 8, but upon motion of Mr. John Quinn, then Counsel for the Defense, who appeared before Justice Malone, the case was submitted for consideration to the Grand Jury which found an indictment against the publishers[4] thereby transferring the case to the Court of General Sessions and enabling the defendants to secure a trial by jury. On May 17, 1920, the publishers pleaded not guilty ... and, until October 16, 1922, awaited trial.
For, in New York, a “crime wave” was in progress. The courts were crowded with cases which involved other than a possible technical violation of the laws; and, however anxious to rid the docket of the Jurgen case, neither the courts nor the District Attorney’s office could do other than give precedence to the trials of persons charged with more serious offenses.
On October 16, then, two and one half years after the indictment, the Jurgen case was called before Judge Charles C. Nott in the Court of General Sessions. A jury was drawn, the book was submitted in evidence and the people’s case was presented. The defendants, through their attorneys, Messrs. Goodbody, Danforth and Glenn, and their counsel, Mr. Garrard Glenn, moved for the direction of a verdict of acquittal, submitting, in behalf of their motion, the brief which is printed hereinafter. The trial was adjourned for three days; and on October 19, 1922, Judge Nott rendered his decision, which also appears hereinafter, and directed the jury to bring in a verdict of acquittal.