Jurgen and the law

by Unknown

Babcock v. People (15 Hun 347).

The indictment is for having in possession with intent to sell, a book offending against Section 1141 of the Penal Law. Since the defendants do not dispute the fact that they did have in their possession the book with intent to sell it, the simple question is whether this book violates the criminal law of this state as expressed in the section of the Penal Law above noted.

While it is sometimes said that this question is one of fact, upon which it is the function of a jury to pass, nevertheless it is clear that, when the defendant raises the question whether the book, as a matter of law, violates the statute, that question is one of law upon which it is the duty of the court to pass.

People v. Brainard (192 App. Div. 816);

Halsey v. New York Society (234 N. Y. 1).

“It is true that whether the book offends against this statute is ordinarily a question of fact for the jury in the first place to determine. It is equally true that upon the review of a conviction for having offended against this provision, it is the duty of this court to examine the publication and see whether the conviction can be sustained under the facts proven. Upon an examination of the book I am satisfied that neither defendant has been guilty of the offense charged in the information, and for this reason the judgment and conviction of the defendant corporation, as well as the defendant Brainard, should be reversed and the information dismissed.” (People v. Brainard, 192 App. Div. 816, 821.)

2—The test is the literary as distinct from the pornographic.

It being a question of law, what are the tests which the courts use in the determination of that question? Those tests, like all the others which the courts have used in the application of criminal law to the case of the individual against whom it is alleged that his act has offended the interests of society, are simple and do not go beyond the actual necessities. Courts in this respect have not forgotten the lessons of history; and of these lessons one which Macaulay’s school boy knows is that under our common law dispensation there has not been, since the abolition of the Courts of Star Chamber and of High Commission, nor will there ever be again, such a spirit in our law as may result, through statute or decision, in the institution of a censorship of the mind in its modes of expression. To use the words of Seabury, J., “it is no part of the duty of courts to exercise a censorship over literary productions” (St. Hubert Guild v. Quinn, 64 Misc. 336, 340). And it is in that spirit that common law courts have approached any case such as this from the days when the obscene became cognizable by common law courts in the exercise of a jurisdiction which they took over from the Courts Spiritual. (Rex v. Curl, 17 How. St. Trials, 153.) It is true that, for a time, during the intellectual ferment in the early part of the Nineteenth Century, the courts, under the inspiration of Lord Eldon did revert to an idea of censorship closely resembling that which Laud advocated in the days of Courts of High Commission; but contemporary opinion of the best minds of the bar, as well as of the public, revolted against this attitude, and the rule thus suggested never became a part of our law.

Seabury, J., has well traced this as follows:

“The early attitude of the courts upon this subject discloses an illiberality of opinion which is not reflected in the recent cases. Perhaps no one was more responsible for this early position than Lord Eldon, who refused to protect by injunction Southey’s “Wat Tyler” until the innocent character of the work was proved. Southey v. Sherwood, 2 Meriv. 437. He assumed a like position in reference to Byron’s Cain (6 Petersdorff Abr. 558, 559), and expressed a doubt (which he hoped was reasonable) as to the innocent character of Milton’s “Paradise Lost”. “When Dr. Johnson heard of some earlier opinions to the same effect, he is reported to have said: ‘They make me think of your judges, not with that respect which I should wish to do.’ Judging from the fact that a jury held the publication of Shelley’s ‘Queen Mab’ to be an indictable offense (Moxon’s Case, 2 Mod. St. Tr. 356), it seems that jurors were no more liberal than judges in these matters. In commenting upon some of Lord Eldon’s judgments on the subject of literary property, Lord Campbell remarked that ‘it must have been a strange occupation for a judge who for many years had meddled with nothing more imaginative than an Act of Parliament to determine in what sense the speculations of Adam, Eve, Cain, and Lucifer are to be understood.’ 10 Campbell’s Lives of the Lord Chancellors, 257.” (St. Hubert Guild v. Quinn, 64 Misc. 336, 339, 340.)