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.)
But the spirit of censorship, thus for a time strangely revived, soon passed. Today therefore the courts apply simple tests, tests savoring of nothing that involves censorship, tests necessary only for the protection of the public against influences that directly, and without the necessity of argument in demonstrating their effect, bear upon public morals. It requires, therefore, but a few words to describe these tests as they are known to the law of this state today.
In the first place, the words of the statute mean exactly what they say and require no subtlety of interpretation. In the words of Cullen, C. J., the statute “is directed against lewd, lascivious and salacious or obscene publications, the tendency of which is to excite lustful and lecherous desire.” (People v. Eastman, 188 N. Y. 478, 480.) That being true, this simple test excludes others which, however subtle may be the argument in their support, however honest the intention of the people who urge them, inevitably lead to the thing which Seabury, J., has said,—but which everybody would know even if it had not been said by this particular Judge,—is outside the purview of criminal law as administered in English-speaking countries,—censorship by indictment.
In the second place this statute does not forbid publication of the polemical. “It seems to be”, says Andrews, J., of the book under review by the Court of Appeals, “largely a protest against what the author, we believe mistakenly, regards as the prudery of newspaper criticism.” (Halsey v. New York Society, 234 N. Y. 1, 4.) The prosecutor, and indeed the court itself, may not agree with what the book may advocate, may not take the sentiment which it expresses, but the book cannot be condemned for that. “Differ as men may as to the views of Voltaire on many questions”, said Seabury, J., in the case which we have already cited, “his works cannot be burned by the public hangman under the guise of a section of our Penal Code.” (St. Hubert’s Guild v. Quinn, 64 Misc. 336, 342.) We need not, however, pursue this subject further, because People v. Eastman (188 N. Y. 478) stands as a monument to the proposition under discussion. One has only to read the article for which an indictment was brought (it is repeated verbatim in the dissenting opinion of O’Brien, J., at pp. 482–484) to realize that its nature was such as to excite in the minds of thousands of our best citizens feelings which it is impossible adequately to describe. Yet, disregarding the decision of the English courts in Regina v. Hicklin (L. B. 3 Q. B. 369), where a precisely similar book was held indictable, our Court of Appeals sustained a demurrer to an indictment which set forth the article in question.
Nor is it necessary, in order to protect a book from indictment, that it teach a moral lesson.
People v. Brainard (192 App. Div. 816);
Halsey v. N. Y. Society (234 N. Y. 1).
The Appellate Division of this Department has well borne out this proposition when, in reversing a judgment of conviction, it said:
“I can see no useful purpose in the publication of the book. I cannot agree that it has any moral lesson to teach. Its publication might well be prohibited as a recital of life in the underworld, as is prohibited books containing recitals of crimes.” (People v. Brainard, 192 App. Div. 816, 821.)
In short, this statute was not intended, as the Court of Appeals has said in one of the cases above cited, “to regulate manners”. (People v. Eastman, 188 N. Y. 478, 480.)
What then do these tests of the law come to? The courts in their own words have told us that. If the book has literary merit, then it is not within the condemnation of the statute.
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.