Jurgen and the law

by Unknown

O’Brien, J.:

“It is very difficult to see upon what theory these world-renowned classics can be regarded as specimens of that pornographic literature which it is the office of the Society for the Suppression of Vice to suppress, or how they can come under any stronger condemnation than that high standard literature which consists of the works of Shakespeare, of Chaucer, of Laurence Sterne, and of other great English writers, without making reference to many parts of the Old Testament Scriptures, which are to be found in almost every household in the land. The very artistic character, the high qualities of style, the absence of those glaring and crude pictures, scenes, and descriptions which affect the common and vulgar mind, make a place for books of the character in question, entirely apart from such gross and obscene writings as it is the duty of the public authorities to suppress. It would be quite as unjustifiable to condemn the writings of Shakespeare and Chaucer and Laurence Sterne, the early English Novelists, the playwrights of the Restoration, and the dramatic literature which has so much enriched the English language, as to place an interdict upon these volumes, which have received the admiration of literary men for so many years.” (Re Worthington Co., 30 N. Y. Supp. 361, 362; 24 L. R. A. 110.)

Andrews, J.:

“With the author’s felicitous style, it contains passages of purity and beauty * * * Here is the work of a great author, written in admirable style, which has become a part of classical literature.” (Halsey v. N. Y. Society, 234 N. Y. 1, 4, 6.)

Seabury, J.:

“Offensive as some of the phrases of this book undoubtedly are to the taste of our day, yet I do not think we can declare a contract for its sale illegal on this account.” (St. Hubert Guild v. Quinn, 64 Misc. 336, 338.)

Literature, to use the phrase of Matthew Arnold, is nothing more nor less than a criticism of life, of the relation of man to the universe and to his fellow man. When any phase of that subject is discussed, then you have literature, though you may not agree with the point of view which the author advocates. Thus, in one of the cases from which we have already frequently cited, Seabury, J., points out the violent differences of opinion that arose and still exist, regarding Voltaire’s “Maid of Orleans”:

“Frederick the Great admired it and paid it the doubtful compliment of imitation, and Condorcet regarded it only as an attack upon hypocrisy and superstition. Less prejudiced critics than these condemn it with severity, and even admirers of Voltaire regret that there are passages in it which have dimmed the fame of its author.” (St. Hubert Guild v. Quinn, 64 Misc. 336, 338.)

For that very reason the final test of the law, as recognized by the courts of this State, is simple. It is only whether the thing is literature as distinct from a simple effort to portray the obscene.

It is quite true that scattered here and there in the books, are to be found expressions to the effect that a thing may be literature and yet be within the statute. The argument is that there are two classes in the community, the intelligent and the ignorant. Something may be literature and the intelligent will so appreciate it, but the statute is to protect the other class—the ones who ought not to be entrusted with books at all. The sequitur is that a book is unlawful unless it can be read by the ignorant, by the child incapable of appreciating the sustained thought. To this effect will one find expressions in U. S. v. Clark (38 Fed. 734), and the General Term decision in People v. Muller (32 Hun, 209). But one will never find that the Court of Appeals of this state has spoken to that effect, or has made that classification. It did not do so in affirming the judgment in People v. Muller (96 N. Y. 408), which, by the way, dealt with a picture and not a book; and it certainly did not do so when it expressed itself in People v. Eastman (188 N. Y. 478) or in Halsey v. N. Y. Society (234 N. Y. 1). In People v. Eastman, as we have said, the article was undoubtedly such as should not fall into the hands of a child; and in Halsey v. N. Y. Society the majority opinion frankly admits that there are paragraphs in the book which, standing alone, are undoubtedly indecent. Nor has the successor of the General Term, the Appellate Division, spoken to that effect. Its decision in People v. Brainard (192 App. Div. 816) certainly does not bear out such interpretation. Nor have judges, sitting at Special or Trial Term, or in the Appellate Term, so expressed themselves. O’Brien, J., certainly made no such distinction in Matter of Worthington (30 N. Y. Supp. 363; 24 L. R. A. 110). Nor did Seabury, J., make any such distinction in St. Hubert Guild v. Quinn (64 Misc. 336). If that were the law of this state, we say, with all sincerity, that literature would have to be reduced to the level of the movies; the stage would be reduced to the rendition of charades, thousands of plays being barred, ranging from those of which Shakespeare was the craftsman, to the productions of Somerset Maugham; Swinburne’s Chorus in “Atalanta in Calydon” would be on the index, and Keats would be barred from any public library because of “Endymion” and “The Eve of St. Agnes”. Nay, Sir Walter Scott’s collection of border minstrelsy would be barred because it contains those two exquisite ballads, “The Eve of St. John” and “Clerk Saunders and May Margaret”; and, incidentally, the “Oxford Book of English Verse” should be burned because it contains reprints of all these things. But it is useless to pursue this subject, for, to use the favorite phrase of the late Chief Justice White, “to state the argument is to answer it”. No, the test is whether the thing is literary; whether it is a criticism of life; whether that effort is apparent in the book.