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.
III
There ends the record of the tale Jurgen’s adventures with the law. The record is, as has been said, uneventful. A book had been impugned, that is all. An author had been vilified and his publishers indicted; certain thousands of readers had been deprived of access to a book which critical opinion had commended to their interest; and author and publishers both had been robbed of the revenues from whatever sale the book might have had during the nearly three years in which it was removed from publication.
True, Mr. Cabell and his book had received much publicity.... There is a legend, indeed, that the author of Jurgen (and of a dozen other distinguished books) owes much of his present place in letters to the advertising which Mr. Sumner involuntarily accorded him. But one may question that. An examination of the publishers’ files seem to show that most of the expressions of admiration for Jurgen were repetitions of an enthusiasm expressed before the book’s “suppression.” And if the enthusiasm and the sympathy of Mr. Cabell’s admirers were hearteningly evident, the attacks of his detractors did not flag; and an inestimable number of persons, knowing Mr. Cabell’s work only through the recorded opinions of Messrs. Kingsley and Sumner, did certainly condemn him unread and, shuddering, barred their library doors against him.... No, Mr. Cabell owes no debt of thanks to the accusers of Jurgen.
But all this is by the way. The argument, which appears in the following pages, is of importance not alone because it so ably defends Jurgen, but because it defines, more clearly than any other recent document, the present legal status of literature in America in relation to permissible candor in treatment and subject matter. The brief is not in any sense an argument in behalf of unrestricted publication of any matter, however obscene, or indeed in behalf of the publication of obscenity in any form. It is not a denial of the community’s right to protect itself from offenses against good taste or against its moral security, or to punish violation of the laws by which the public welfare is safe-guarded.
But one need not be an apologist of license to perceive that there is in a thoughtful consideration of every aspect of life no kinship to indecency; or to perceive that the community cannot, without serious danger to its own cultural development, ignore the distinction between the artist’s attempt to create beauty by means of the written word, and the lewd and vulgar outpourings of the pornographer. When these two things are confused by a semi-official organization which is endowed with suppressive powers, even when the courts fail to sustain its accusations, the menace to the community is measurably increased. As a protection against this menace the brief presents, with admirable clarity, a legal test, the validity of which common sense will readily recognize, for the determination of literature as distinct from obscenity.
Guy Holt.
New York City,