A few of our great thinkers have gone out, out — out beyond good and evil. When it, comes to definitions and specific, cases, the rest of us may differ sharply but with reference to the ab-stract principle we are still within shouting distance of one another. We have preserved our 'illusions.' We have not yet learned to look upon words as merely pasterns made in a child's game of letters. We still believe that there are important values represented by such symbols as 'good taste' and 'decency.' We may quarrel about standards of decency; but we agree — I hope that I do not generalize from insufficient data — we agree that persons who have 'lost all sense of decency' are undesirable, unfragrant, and perhaps imbecile and unsafe to be abroad in the community.
Our common sense accordingly takes measures to provide against destruction of the sense of decency by perverts who subsist on the propagation of vice, or who, as mere amateurs of depravity, find their delight in corrupting the minds of the young. Our common sense does not attempt to legislate with reference to highly disputable points of taste, but only with reference to the elements of common decency. For this reason our regulations are not devised by aesthetic experts or professors of ethics or Galahads, but by fairly worldly all-around men, equally competent with respect to railroads, boxing, and tariffs. These representatives whom we have elected to care for our public welfare have declared by law that a certain class of literature is unprintable. In this class falls, according to various Federal and State enactments, every book and picture which is 'obscene,' 'lewd,' 'lascivious,' 'filthy,' 'indecent,' or 'disgusting.'
Under authority of these acts, the New York Society for the Suppression of Vice and similar agencies have confiscated, destroyed, and excluded from the mails a great mass of 'demoralizing' matter concerning which our common sense is not in doubt -matter which comes to respectable noses only when some brief newspaper paragraph reminds us that there are monsters among us engaged in the business intimated with shuddering horror in Henry James's 'Turn of the Screw.'
But these moral agencies have also obtained in recent years the temporary suppression of several novels, which 'everyone' has read, written by English and American authors whose other works are 'in every library.' In the circumstances, common sense naturally raises the question whether there has not been a failure of justice. I doubt whether any man versed in letters can read the records of a celebrated literary trial without coming to the conclusion that judges and lawyers are, so far as their professional training is concerned, unequipped for the task undertaken and really as much at sea as they have frequently shown themselves when they have employed their grave wisdoms in settling the authorship of Shakespeare's plays. Their self-confidence in such affairs is supported by their certified expertness in handling evidence &mdash of a sort. They think that they understand the law. They have explained it to the jury in just about this fashion and in nearly these words:
'The question before you, gentlemen, is very simple.' (That is their first error: the question before the gentlemen is one of abysmal complexities. But let us not interrupt the Court.) 'The question is not to say how this book affects you, or persons of your seasoned experience and virtue. The question is whether this book tends to deprave the minds of those open to such influences, and into whose hands a publication of this character might come. It is within the law if it would suggest impure and libidinous thoughts in the young and inexperienced. A book to be obscene, need not be obscene throughout the whole of its contents; but if the book is obscene in part, it is an obscene book.'
A schoolboy far below Macaulay's conception of the type can perceive at a glance that any jury which honestly obeyed these instructions could bar from the mails the Bible, Shakespeare, or even an unabridged English Dictionary, which, as there is testimony to prove, is quite capable of suggesting. impure and libidinous thoughts in minds 'open to such influences.' In the celebrated, but now remote, case of Madame Bovary, the prosecution, indeed, like a prurient schoolboy, selected from that grim and repellent history of illicit relations all the passages descriptive of sensual passion, wove them into a suggestive little narrative of its own, and thus presented its case to the jury. The defense, on the other hand, argued with a good deal of piquancy and cogency that Flaubert had dealt with sensual passion in the temper of Bossuet, with excerpts from whom the notebooks of the novelist were full; and that to judge a serious work of art without reference to its total intention and effect is not merely unjust but grossly absurd.
Each attempt to apply the law in such cases results inevitably in an extension of the legal prosecution and defense into an acrimonious, yet not uninstructive and often diverting, public debate between authors in general and the officers and friends of the Society for the Suppression of Vice. Whatever the result of the legal proceedings may be, the cause of 'outraged virtue' is lost the moment that it is carried into the newspapers, where, as Mark Twain might have said, it is as much out of place 'as a Presbyterian in hell-fire.' The cause is lost through the manifested ineptitude, ignorance, and incompetency of those who espouse it. In these cases — if I may be pardoned for employing a vulgar and violent expression — in these cases, a good man, whenever he opens his mouth, puts his foot into it. A country clergyman writes in that he has not read the book in question, but he knows that our modern authors are a 'bad lot,' and he wishes the prosecutor 'more power to his elbow.' An irate judge declares that he and his daughter have read the book, and he only wishes that he could 'get it before the public'! An Outraged Parent says that he would like to read it; and in this wish he is joined by the association of Y. M. C. A. secretaries, the Associated Mothers' Club, the Boy Scouts, and the Camp Fire Girls. Members of any or all of these associations are prepared to affirm, after a careful perusal of the objectionable book, that it is not fit for them to read.
By this time, what began as a serious matter of public morals would degenerate into farce, and the case would be lost in the court of common sense, even if the defense did not utter a word. But the defense never lets the prosecution off so easily. The defense is endowed with tongues which it knows how to use effectively, if not always scrupulously. The persuasively articulate part of the public, all the wits of the press, editors and authors of every shade of merit and respectability, habitually unite in condemnation of the law and in derision of those who have attempted to enforce it. It is to be noted that they also, for the most part, think it unnecessary to have read the book in order to protest against the prosecution of its author. They protest 'on general principles' — on a considerable variety of general principles, which I shall summarize.
They protest from a general belief in the 'freedom of the press,' and from a feeling that a free press is on the whole more vital to the public than any law curbing it can be. They protest from a general belief in the 'freedom of art.' A few of them argue that art should be free because all true art is moral. More of them argue that art should be free because it is neither moral nor immoral but unmoral, and its influence aesthetic and, therefore, no concern of the legislator or moralist. They contend that the suppressive statutes were framed against pornography, not against art; and they assert that it is easy to distinguish art from pornography. In conclusion, they characterize the prosecution as illiterate, blackmailing, filthy-minded, impertinent, and meddlesome.
After such an encounter, Militant Morality retires from the scene like a badly punished game-cock, with all the young cockerels of the press bursting forth into derisive crowing. If the legal prosecution also has failed, the book receives an almost official certificate of innocence; and it may be cried up as a pure, decent, beautiful, and significant work of art. If the prosecution has been successful, the book may be suppressed till every schoolboy's curiosity has been whetted to know why; then it may be released and devoured by thousands of readers enlisted mainly by the publicity work of the Society for the Suppression of Vice. The law as applied to books issued by regular publishers through the regular channels is, I think, futile and mischievous.