Morals Versus Art
- 1 Which Shall it Be, Pure Morals or Impure Art?
- 2 Morality or Obscenity, Which?
- 3 Art for Art's Sake
- 4 Nude in Art
- 5 The Obscene, Lewd and Indecent in Art,
- 6 The Laws
- 7 Principles of Law Involved
- 8 Test of Obscenity
- 9 Such a Photograph Not a Work of Art
- 10 Intent
- 11 Expert Testimony
- 12 Artists Oppose Comstock
- 13 Our Enemies
- 14 Synopsis
Which Shall it Be, Pure Morals or Impure Art?
In attempting a discussion upon this subject we find ourselves surrounded by prejudices, and a feeling almost of intolerance on the part of some, because of the gross misstatements, misrepresentations and falsehoods, that have been recently published against us.
The secular press have undertaken to try through the columns of the newspapers, a case which we have brought into court by due process of law for adjudication by law, not upon evidence or facts, but by ridicule, sneers and misrepresentations. One paper sneeringly says: "Who gave Mr. Comstock and his society authority to decide the limits of the virtuous and pure in art?" We do not decide. The courts are the ones appointed by law to do that.
Not stopping to run down any of these newspaper misstatements, nor to reply to any of the attacks made upon us, it is proposed in the good interest of good morals to present,
First, the subject of morals and the principles of law involved.
Second, the test or legal definition of the words "obscene, lewd or indecent."
The principles set forth herein are those which have controlled the action of the New York Society for the Suppression of Vice since its very first inception. Our judgment, however imperfect the newspapers would have it appear to be, has been and is based upon the principles herein set forth. Our actions are not governed by the will or wish to the individual, but entirely by the principles of law and tests as laid down by the courts of England and America during the past century and a half.
Morality or Obscenity, Which?
Pure morals are of first importance. They are protected by law; while art, if unclean, is not. The morals of the youth of this country are endangered by obscenity and indecency in the shape of photographs of lewd French art -- a foreign foe. Ignorance of the real scope and purport of the law against obscenity, and the real tests to be applied in the enforcement of these laws, are two of the strongest points in favor of the enemy of our youth. A mistaken idea also prevails, that a painting or engraving, though exerting an obscene or demoralizing influence, is exempt from the provisions of law because it is called "a work of art." It is attempted to defend the indiscriminate sale of these French photographs on the plea that they "are works of art," or that "art is in danger."
In the guise of art, this foe of moral purity comes in its most insidious, fascinating and seductive form.
Obscenity may be produced by the pen of the ready writer in prose; it may come upon the flowery wing of poetry; or, as in this instance, by the gilded touch of the brush of the man of genius in art. Prose, poetry and art all have been employed to charm and entrance the human mind and to picture beautiful and seductive things. They have each of them also been prostituted to the production of the most base, obscene and lewd ideas. There is no conflict, however, between either, of prose, poetry or art, and morals or law, until some person prostitutes some one of them to reproduce the impure conceptions of the individual mind.
Prose and poetry are not considered in danger when this demoralizing element in them is singled out and repressed by law, in the interest of public morals. Authors have never felt called upon to combine themselves together to assail the efforts being made to check what is obscene, lewd and indecent in prose and poetry. Why, then, this present outcry against the suppression, not of French art, but of cheap lewd French photographs, some of which have already been adjudicated by the Oyer and Terminer Court, the General Term of the Supreme Court of the City and State of New York, to be both "obscene and indecent."
Strychnine is a deadly poison. Its effect when administered sugar-coated is the same as when administered otherwise. When the genius of art reproduces obscene, lewd or lascivious ideas, the deadly effect upon the morals of the young is just as perceptible as when the same ideas are represented by gross expressions in prose or poetry. Indeed, the fascination with beautiful surroundings is added to the evil subject, as an apology for it. Why should this corrupting agency be protected and defended in art any more than in prose or poetry? Art is not above morals. Morals stand first. Law ranks next as the defender of public morals. Art only comes in conflict with law when its tendency is obscene, lewd or indecent.
Art for Art's Sake
The closer art keeps to pure morality the higher is its grade. Artistic beauty and immorality are divergent lines. To appeal to the animal in man does not inspire the soul of man with ecstasies of the beautiful. Every canvas which bears a mixture of oil and colors upon it is not a work of art. The word "art" is used as an apology for many a daub. In an exceedingly interesting article upon Sidney Lanier, in The Presbyterian Review for October 1887, President Merrill E. Gates, of Rutgers College, has placed upon record this thought:
"The cry 'art for art's sake' is repeated as a shibboleth by critics of so-called artists, who have never seen the first principle of all art, that there can be no true art which is not in harmony with the 'holiness of beauty' and suggestive of the 'beauty of holiness.'"
At the head of his article we find him quoting as follows:
"Genius takes its rise out of the mountains of rectitude." --Emerson
"Longfellow...saw that in the morality of human life lies its true beauty." --George W. Curtis
"Time, whose judgments are inexorably moral." --Lanier
President Gates, in order to introduce something of Lanier's soul as a man and purpose as a writer, quotes from his works. These thoughts are exceedingly appropriate at this time, when a great outcry is being made against the effort to head off the invasions of obscene, lewd and indecent French photographs, commonly, but incorrectly, called "art."
Lanier wrote: "The greatest work has always gone hand in hand with the most fervent moral purpose. The requirement has been from time immemorial that whenever there is a contest as between artistic and moral beauty, unless the moral side prevail, all is lost."
The following additional words, taken from the same article, and quoted from the English novel, pp. 272-3, are most respectfully commended to the consideration of those who have so recently sneered at and ridiculed the effort to protect public morals, by checking the due process or law, the immoralities which seek protection under the shadow of art. Says Lanier:
"Let any sculptor hew us out of the most ravishing combination of tender curves and spheric softness that that ever stood for woman; yet if the lip have a certain fullness that hints of the flesh, if the brow be insincere, if in the minutest particular the physical beauty suggest a moral ugliness, that sculptor -- unless he be portraying a moral ugliness for a moral purpose -- may as well give over his marble for paving-stones." "He who has not yet perceived how artistic beauty and moral beauty are convergent lines, which run back into a common ideal origin, and who therefore is not afire with moral beauty just as with artistic beauty, . . . he is not a great artist."
What, then, shall be said of the French photographs in question which represent nude women in postures and expressions which cannot be described without offending decency? We essayed a partial description, but three eminent gentlemen, to whom the original draft of this manuscript was shown, objected that the attempt to convey to the reader's mind a fair idea of the true character of the matters we had assailed by law would be objectionable, and so it is omitted.
Nude in Art
The nude in art is not necessarily obscene, lewd or indecent. The nude in art is, however, capable of, and often is employed to convey most lewd, lascivious and demoralizing ideas.
The artist conceived and makes a beautiful figure of a nude woman. From a standpoint of execution it is as perfect as he can make it. It is free also from any unchaste posture or expression. He has produced this to win fame for himself, and as a profitable venture from a business standpoint. He exhibits it or sells it to make money.
Another person has a beautiful daughter. He says, "I have something more chaste, perfect and beautiful in form than that figure on the artist's canvas. If he can exhibit a beautiful figure of a nude girl for money, why not I exhibit nature itself, which outshines his imitation, and thus makes money too?" Would this be allowed? Would the father be permitted to even photograph his nude child and sell those photographs upon the public street? What would be the effect of such pictures upon young men? If nature cannot expose herself; if a photograph from life may not be allowed; why, then, should a photograph of an artist's attempt at reproduction of the nude figure of this girl be allowed a cheap and indiscriminate sale upon the public thoroughfares?
In the artist's picture the figure is chaste in expression and posture, and surrounded with a beauty and harmony of blended colors and attractions which practically clothes it.
These accompaniments certainly demand attention, and divert the mind of the observer from the nude figure, so that in contemplating the work as it left the artist's hands, one scarcely is aware that a nude figure is thus exposed. This figure thus exhibited to cultured minds in an art gallery, where it legitimately belongs, is a very different thing from what it appears to be to the common mind upon the public street in the shape of a photograph.
In what we are now saying and about to say, we desire to be distinctly understood, that we speak of the world as it is, not as is ought to be. Constituted as society is, with hundreds of thousands in the community who cannot appreciate the nude in art at its best, photographs of the nude are a curse to many. They appeal to passion, and create impure imaginations. To young men, cursed as thousands of the present day are, with secret vices, these photographs leave impressions upon their imaginations which are a continual menace to them. They fan the flame of secret desires. Again, with so many unclean minds as there are to-day (the natural harvest of seed sowing of corrupt publications and pictures of the past), these photographs are appropriated to lewd purposes, and but pave the way, and create a demand for that which is worse.
It is said the exposing to public view of the nude figures of women is "an educator of the public mind." It may educate the public mind as to the forms of beautiful women, but it creates an appetite for the immoral; its tendency is downward; and it is in many cases a blight to the morals of the young and inexperienced. As proof of this, note the throngs about windows where nude or partly nude figures are exposed.
This does not contradict the fact already stated that the "nude in art" is not necessarily in itself obscene, lewd or indecent, but may be chaste, sweet and free from lewd posture of expression in the original painting. But it does raise the question of the expediency of parading photographs of nude figures of beautiful women and girls before the eyes of young men and boys. It does not say that the nude in art has not its proper place. But we do in all sincerity appeal to the public, that the proper place is not before the eyes of the uncultured and inexperienced.
There is another view that demands fair consideration. Nude in art unclothes beautiful woman. To thus expose her in public is to rob her of her modesty which is her most beautiful mantle. It degrades her sex. It is food for impure imaginations and provokes commend among the evil-minded. In the sanctity of home the human form is only derobed in the privacy of the dressing-room, and then not for the gaze of others. Why this intrusion into the precincts of seclusion? By what right does a few selfish men enter the privacy and denude women for the inspection of others or seek to put these representations of nudity upon the open market for all classes to gaze upon?
The painting, with its sweet harmony of blended colors and tints, is one thing to the cultured mind; but to the cold reality of black and white in the photograph, where the nude figure is placed prominently before the eyes of the uncultured, is, in character and effect a very different thing.
In this connection we borrow in illustration from a case adjudicated in 1870, in Philadelphia, where a man named Landis was indicted for selling a book for th purpose of making money, which he chose to call a "medical work." He was convicted, and appealed his case, and the court drew a very vivid distinction between a matter in its proper place, and the same matter in an improper place. It said:
"That before a medical class, for the purpose of instruction, it might be necessary and proper, and consonant with decency and modesty, to expose the human body for exhibition of disease, or for the purpose of operation; but that if the same human body was exposed in front of one of our medical colleges to the public indiscriminately, even for the purpose of operation, such an exhibition would be held to be indecent and obscene."
While conceding that in the original painting the nude may be chaste and pure, yet when torn from its proper sphere its character and effect are changed, and it is capable of ministering to the lowest imaginings of uncultured minds.
Let the nude be kept in its proper place, and out of reach of the rabble, or those whose minds are already tainted or diseased with licentiousness, and its power for evil will be far less. The fault may be in the minds of the weak ones, but we must take the world as it is, not as we wish it might be. Many a youth inherits tendencies to lust and intemperance, and such ought not to be exposed to temptation.
The Obscene, Lewd and Indecent in Art,
however, is placed upon an entirely different basis. Obscenity in any guise or form is a moral monster. It is like a parasite, fattening upon carrion. Its very presence poisons the moral atmosphere. Its breath is fetid, and its touch moral prostration and death. It may come like a beggar clothed with the rags or coarse and bawdy words: it may be sung in the syren's song by the poet; or entrance fancy by appearing in the blended harmonies of a work of art. When art thus leads its enchantments to vice the law quarantines it, and justice applies a disinfectant. Art is not assailed; the immoral feature is, though, and art must either divest itself of this demoralizing influence or be suppressed; or so closely confined that its power for evil is reduced to a minimum.
Because a painting of this character has been executed by some artist, who, after winning fame for himself, has lent his genius to a base purpose, and employed it to reproduce some lewd and obscene idea that he has given place in his own mind to, is no reason why such picture's tendency is not to deprave and corrupt the minds of persons open to such immoral influence; and no reason why it should be allowed upon the public street.
Says the Lord Chief Justice in the Hicklin case: Queen vs. Hicklin, 3 Eng. H.R. (Q.B.)
"What can be more obscene than the Venus in Dulwich gallery. It does not follow that because such a picture is exhibited in a public gallery that photographs of it might be sold on the street with impunity."
The Public Exhibition of a Picture does not Define its Character as Obscene or Indecent.
In charging the jury in the case of Muller, Judge Brady said:
"It does not follow that because a photograph or engraving, or representation of an engraving or picture, is exhibited in a salon in France or the United States that it is not an indecent or obscene one. The object in art, as we understand it, is high and ennobling. It aims at the reproduction and presentation of the beauties of nature, and its chief design should be the development of every form of the beautiful in nature, although it may be employed to exhibit the horrors of vice. But this must be accomplished by means that are not indecent. The world is open to the artist. He may represent objects and subjects in whatever colors he may see fit to adopt, but his methods must commend themselves to the morality of the people. He must see to it that they do not invade the law of public morals, and, according to some writers, endanger the public peace." (32 Hun, 28).
The Court of Appeals says in the same case:
"The fact that a picture had been publicly exhibited would not necessarily determine its character as decent or indecent. It would, we conceive, be no answer to an indictment for the sale of an obscene picture that it was sold to a person not liable to be injured by it, or that it was a picture in respect to execution of distinguished merit." (People vs. Miller, 96 N.Y.)
Says the General Term of the Supreme Court in the same case:
"If the pictures of the same description were exhibited and tolerated elsewhere that fact would be entitled to no effect in determining whether this statute had or had not been violated in their exhibition and sale within the County of New York."
The Court, then, after noting the fact that the original pictures, of which photographs were copies, had been exhibited in the Salon in Paris, and at Philadelphia, and that that fact was conceded by the prosecution in the trial of the case, said:
"But this did not as a matter of law exclude a finding by the jury that the photographs were obscene and indecent. It is not impossible certainly that the public exhibition of indecent pictures may have been permitted in Paris or Philadelphia, and the fact that a picture had been publicly exhibited would not necessarily determine its character as decent or indecent."
By act of Congress the mails of the United States and the ports of this country are closed to obscene and indecent matters.
Section 317 of the Penal Code of the State of New York prohibits the selling, lending, giving away or showing of any obscene, lewd, indecent, or lascivious book, picture, writing, or paper, of any description, or the having in one's possession for any such purpose or purposes, and makes any such offense a misdemeanor.
Principles of Law Involved
Going back to the year 1726, to the first case in England where a person was convicted and sentenced for selling an obscene book, (Rex vs. Curl, 2 Strange. R. p.788), under the Common Law, we find the following principle laid down, which has since been repeatedly affirmed by the courts in America and England:
"Peace includes good order and government, and that peace may be broken in any instances without an actual force.
"1st. If it be an act against the Constitution or civil government.
"2nd. If it be against religion.
"3d. If against morality."
In that case, held:
"As to morality. Destroying, that is, destroying the peace of government; for government is no more than public order, which is morality."
Prior to this case in Curl, we find the case Rex vs. Hill, where the defendant had been indicted for printing some obscene poems tending to the corruption of youth. The defendant, however, absconded before the trial, and was outlawed.
In 1808, in Connecticut, it was held:
"Every public show or exhibition which outrages decency, shocks humanity, or is contra bonas mores, is punishable at common law." (Knowles vs. State, 3 day's Conn. R. p.103.)
In Massachusetts, in 1821, one Peter Holmes was indicted under Common Law for selling an obscene print. In this case it was held that
"Obscene matter need not be set out in the indictment lest the Court should give permanency and notoriety to the indecency." (Com. vs. Holmes, 17 Mass. R. p.337.)
In Philadelphia, Pa., under Common Law, in 1815, one Sharpless and others were indicted for exhibiting an obscene painting -- a work of art. Held by the Supreme Court of that State, as follows:
"Any offense which in its nature, and by its example, tends to the corruption of morals, as the exhibition of an obscene picture, is indictable at Common Law." (Com. vs. Sharpless, 2 Sergt. and Rawle, p.91.)
The Court then said, referring to the case Rex vs. Curl in 1726:
"The law was in Curl's case established upon true principles. What tended to corrupt society was held to be a breach of the peace, and punishable by indictment. The courts are guardians of the public morals, and therefore have jurisdiction in such cases. Hence it follows that an offense may be punishable if in its nature, and by its example, it tends to the corruption of morals, although it be not committed in public...A picture tends to excite lust as strongly as a writing; and the showing of a picture is as much a publication as the selling of a book." (Supra, 102.)
Then, in reference to the privacy of a room being a protection, the Court says:
"If the privacy of a room was a protection, all of the youth of the city might be corrupted by taking them one by one into a chamber, and there inflaming their passions by the exhibition of lascivious pictures. In the eye of the law this would be a publication, and a most pernicious one." (Supra, 102.)
The Court further adds, in words of unmistakable meaning, concerning the destruction of morality, as follows:
"The destruction of morality renders the power of government invalid, for government is no more than public order. It weakens the bans by which society is kept together. The corruption of the public mind in general, and debauching the manners of youth in particular, by lewd and obscene pictures exhibited to view, must necessarily be attended with the most injurious consequences, and in such instances courts of justice are, or ought to be, the school of morals." (Supra, 103.)
The Court then cites the case Rex vs. Wilkes, tried in 1770 (4 Burr, 2327), as also affirming the principles in the case Rex vs. Curl.
It is claimed in the case of Sharpless that Sharpless could not be convicted because the picture would not exert the same influence upon all persons alike. The Court said:
"Some immodest paintings, it is true, may carry grosser features of indecency than others, and in fact may produce disgust in the minds of even the most debauched; yet if the painting here tended to the manifest corruption of youth and other citizens, and was of public evil example to others, I think it sufficiently described...No man is permitted to corrupt the morals of the people."
The motion in arrest of judgment was overruled, and judgment of the lower Court affirmed. Returning to England, in the justly celebrated case Regina vs. Hicklin, in the year 1867, we find one of the most remarkable cases on record. A number of pamphlets entitled, "The Confessional Unmasked, showing the depravity of the Romish priesthood, the iniquity of the Confessional, and the questions put to females in Confession," were seized in the appellant's house, and ordered by two Justices of the Borough of Wolverhampton to be destroyed as "obscene books" within the law. On appeal to the Recorder, the order of the Justices was overruled. He found that about one half of the pamphlet related to controversial questions, but the latter half was grossly obscene as relating to impure and filthy acts, words and ideas. The appellant sold the pamphlets at the price he gave for them to any one who applied for them. He did not keep the pamphlets to sell for profit or gain, nor for the purpose of prejudicing good morals; but he kept and sold them for the purpose of exposing what he deemed to be the errors of the Church of Rome, ""and particularly the immorality of the confessional." The Recorder, before whom the case was brought, bring of the opinion that the sale and distribution of the pamphlets under the above circumstances would not be a misdemeanor, quashed the order of the Justices. The order of the Recorder was appealed on the 27th of May, 1867, to the Court of Queen's Bench, when the Recorder was reversed and the two Justices sustained. Held:
"In Starkie, on Slander and Libel, (Vol. 2, p. 128, second edition), "It is said that ever since the decision in Curl's case," (2. Strange R. 788), "it seems to have been settled that any publication tending to the destruction of the morals of society is punishable by indictment." (Queen vs. Hicklin, 3 English L.R. Q.B. 368.)"
The case of Hicklin, however, was prosecuted under an Act of Parliament commonly known as the Lord Campbell Act (20 and 21 Vict. c. 83.)
Everywhere, since 1726, it will be found that the principles of common law have been affirmed and reaffirmed by the Courts. By acts of Parliament in England, by acts of Congress in the United States, and legislative enactments in the various States of the Union, those Common Law principles have since been emphasized by statutory provisions against obscene, lewd and indecent matters.
Test of Obscenity
The next subject of importance as a help to a clear understanding of the method of enforcing the law, is the legal definition or test of obscenity.
The question of obscenity is always a question of fact for the Jury.
Says the Court of Appeals of the State of New York:
"The question whether a picture or writing is obscene is one of the plainest that can be presented to a jury, and under the guidance of a discreet judge there is little danger of reaching a wrong conclusion."
In the case of Hicklin we find the following test laid down by Lord Chief Justice Cockburn, and a full bench of the Queen's Court, to wit:
"Whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall."
Then, to give practical emphasis to this test, the Court immediately adds:
"Now with regard to this work, it is quite certain that it would suggest to the minds of the young of either sex, or even to persons of more advanced years, thoughts of a most impure or libidinous character."
In 1872, the same matter was brought again before the courts of England in another form. A police magistrate had ordered the destruction of copies of a pamphlet as obscene books, which one Steele kept at his shop for sale. The pamphlet was a report of the trial of George Mackey at the Winchester Quarter Sessions, 18th and 19th of October, 1870, from shorthand notes taken at the trial, containing the full text of a book entitled "The Immorality of the Romish Confession." This book was sold in this case for the use of heads of families and persons of mature years, and was so stated on the cover. A society known as "The Protestant Electoral Union" had been in the habit of selling and distributing copies of "The Confessional Unmasked," previous to the decision in the case of Regina vs. Hicklin. In consequence of that decision the first edition of the book has been withdrawn, and the new one published, as stated. Chief justice Boville, delivering the opinion sustaining the verdict of the lower court, held:
"The book is one which would manifestly tend to deprave and corrupt morals, more especially of the young. That being so, it appears to me necessarily to follow that the publication of the book would be a misdemeanor." (Steele vs. Bannon, L.R. 7 C.P. p.266.)
Another important point appeared in this case in favor of the appellant, and that was that it was a report of a legal proceeding. Yet, with all the latitude and freedom of the press with relation to the proceedings of courts of justice, the Court held:
"The freedom of the press with relation to the proceedings of the courts of justice is, doubtless, of the highest importance, and the law does its utmost to protect such freedom. But the law would be self-contradictory if it made the publication of an obscene book an indictable offense, and yet sanction the publication of such a work under cover of its being part of a proceeding in a court of justice." (Supra, 268.)
The high Court re-affirmed the case Regina vs. Hicklin.
It must be observed that Morals have ever been jealously guarded, and every test and decision contains the words, "tends" or "tendency," or words synonymous with them. Coming now to the decisions in the United States, we find the same test of obscenity and principles at common law fully concurred in and sustained by our courts.
In the case of U. S. v. D. M. Bennett, Judge Benedict, in charging the jury, quoted the language of Lord Chief Justice Cockburn in the Hicklin case, and then said:
"Now, gentlemen, I have given you the test; it is not a question of whether it would corrupt the morals, tend to deprave your minds, or the minds of every person. It is a question of whether it tends to deprave the minds of those open to such influences, and into whose hands a publication of this sort might come. It is within the law if it would suggest impure or libidinous thoughts in the young and the inexperienced."
After conviction, upon a motion of arrest of judgment, this case was brought before the U. S. Circuit Court in Banc, Mr. Justice Blatchford (now of the Supreme Court of the United States) presiding. In rendering the decision of the Circuit Court, Mr. Justice Blatchford said:
"It was not an erroneous statement of the test of obscenity, nor did the Court give an erroneous definition of obscenity. These views seem to us very sound." (U. S. vs. Bennett, 13 Blatchford, p.28.)
In the case of Silas Hicks, tried in the General Sessions Court, New York City, upon an indictment for selling an obscene picture, Judge Gildersleeve, in charging the jury, said:
"The test you apply is this: look at this picture and say whether or not in your judgment its tendency is to create lewd ideas, or to corrupt and deprave the minds of persons open to such impressions, and into whose hands it is likely to fall. Look at that picture and say if it should come into the hands of children, into the hands of your sons, or your daughters, if the impressions it would be likely to create would be pure and moral ones, or whether they would be likely to create lewd, lascivious, and immoral impressions."
In the case of Com. vs. Landis (8 Philadelphia R. 434), tried in 1875, in Philadelphia, the Court charged the jury:
"That which offends modesty, and is obscene and lewd, and tends to the creation of lascivious desire, is obscene."
The jury were also further instructed that
"It was for them to determine the character of the book. If in their judgment the book was fit and proper for publication, and such as should go into their families, and be handed to their sons and daughters, and placed in boarding schools for the beneficial information of the young, and others, then it was their duty to acquit the defendant, . . . That it did not matter whether the things in the book were true, and in conformity with nature and the laws of our being or not. If they were unfit to be published, or tended to inflame improper passions, it was obscene libel."
It was claimed by the defense that this book was a scientific and medical publication containing matters taken from standard medical works. But the book was for general dissemination. Landis was convicted and the judgment affirmed by the higher Court.
A more recent case of equal celebrity with the others is the case of People vs. August Muller, tried before Mr. Justice Brady, of the Supreme Court, and a jury in the Oyer and Terminer Court, New York City, in 1884. Muller had been indicted for the sale of nine pictures under section 317 of our Penal Code. Eight of these pictures, it was claimed, on the part of the defense, and was conceded by the prosecution, were copies of works of art exhibited in the Salon of Paris, and the other one had been exhibited at the Centennial in Philadelphia. Judge Brady, in charging the jury, said:
"Gentlemen of the jury, I suppose we must all recognize the fact that the representation of a nude figure is not necessarily indecent. It may be pure, or impure, or indecent, and whether it is one or the other depends on the character of the subject, its treatment, and its effect upon the mind or nature of those who see it. If its effect is to excite impure emotions or inward thoughts; if it suggests an impure sense, or is likely to produce a depraved state or condition of the mind, or it is treated in such a way as to arouse improper passions, then it would be indecent under our laws, as declared."
Muller was convicted, and afterwards appealed his case to the General Term of the Supreme Court of the county of New York, who, by a unanimous decision, affirmed the judgment of the lower Court. Mr. Justice Daniels, in rendering the opinion of the Court, said:
"The statute (Sec. 317 P.C.) has not particularly described what, within its intent or purpose, should be considered obscene and indecent. But as these are words of well-known signification, it must have been intended by the Legislature in the enactment of the law to use them in their popular sense and understanding, and may consequently include all pictures, drawings, and photographs of an indecent and immoral tendency, intending to include as obscene such as are offensive to decency by exposing what purity and decency forbid to be shown, and productive of libidinous an lewd thoughts or emotions . . . The question in all these cases must be, what is the impression produced upon the mind by perusing and observing the writing of the picture referred to in the indictment . . . Where the impression or conviction would be, in the case of a photograph or picture, that is meretricious, and intended to exhibit the arts of a harlot, or to induce or promote prostitution, or offend decency, and cause loose and shameless thoughts, there would be sufficient grounds to pronounce its sale, possession or exhibition, to be a violation of this section of the statute."
This high Court then proceeds to define the object of the law (Sec. 317 P. C.) as follows:
"The object of the law was to protect public morals, especially as to that class of the community whose character is not so completely formed as to be proof against the lewd effects of the pictures, photographs and publications prohibited." (People vs. Muller, 32 Hun. 209.)
This case afterwards went to the Court of Appeals, and received unanimous approval, the Court saying, "We find no error in the record." The Court of appeals then add:
"The test of an obscene book was stated in Regina vs. Hicklin to be, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and who might come in contact with it. We also think it would be a proper test of obscenity in a painting or statue, whether the motive of the painting or statue, so so to speak, as indicated by it, is pure or impure, whether it is naturally calculated to excite in a spectator impure imaginations, and whether the other incidents and qualities, however attractive, were merely accessory to this as the primary and main purpose of the representation." (People vs. Muller, 96 N.Y. 408, 414.)
It will thus be seen that it requires no expert in art or literature to determine whether a picture tends to awaken lewd thoughts and impure imaginations in the minds of the young.
The morals of those open to immoral influences are most sacredly guarded in law and by the courts.
Another thing, this decision, whether intentionally or not, indirectly draws a very broad distinction between a photograph and a work of art. The photograph which takes out the nude figure of a woman from a painting entirely removes the "other incidents and qualities" of attraction which go to make a painting a work of art.
Such a Photograph Not a Work of Art
The secular press of New York City would have it appear before the public that the enforcement of the law against certain cheap lewd French photographs, to prevent their indiscriminate sale and circulation in violation of the law of the State of New York, is a blow at art. Such is not the case. Such a photograph strips a painting of all the "incidents" and "qualities" that go to make up a work of art. It destroys entirely the harmony of blended colors, tintings, shadings and lines of beauty. It brings to the front and emphasizes the most objectionable part of the picture.
The foregoing decisions are those which govern the enforcement of section 317 of the Penal Code of the State of New York.
It is generally contended that a man cannot be convicted for selling an obscene book or picture unless he intends to sell it for the purpose of debauching the morals of the public. This brings us to the question of
The motive or intension of a defendant does not affect the tendency of a book or picture.
The law is mala prohibita. It is aimed at the evil effect of certain matter, whether printed, written, engraved, drawn, or painted. The books are full of authorities on this subject.
We find the above test (laid down before society ever started) affirmed and reaffirmed through all the years of our existence by the courts, in cases prosecuted by us. The principle of intent is discussed at great length in the two leading English cases of Hicklin and Steele vs. Bannon, above referred to. In each case it was contended that the parties were simply desirous of attacking certain eviles. Upon the trial it was conceded that the book was published in the interests of the Protestant religion, and that the motive of the defendant was not to injure public morals, but to protect them. It was upon this ground that the Recorder in the Quarter Sessions of Wolverhampton, had overruled the decision of the two Justices, holding that "because the motive of Hicklin was not to injure public morals, that the appellant's act was justifiable, his motive being honest." The Queen's Court, however, overrules the decision of the Recorder and sustains the two Justices, holding:
"If he does an act which is illegal it does not make it legal that he did it with some other object . . . But I think it never can be said that in order to enforce your views you may do something contrary to public morality. If the thing is an obscene publication, then, notwithstanding that the wish was not to injure the public morality, but merely to attack the Roman Catholic religion and practices, I think it would be an indictable offense. But I do not think you could so construe this statute as to say that whenever there is a wrongful act of this sort committed, you must take into consideration the intention and object of the party in committing it, and if these were laudable, that that would deprive the justices of jurisdiction."
In the case of Steele we find this subject still more thoroughly examined by Chief Justice Boville, who says:
"It was, however, strongly contended by the counsel for the appellant, that the book treated of a matter which might properly be made the subject of discussion and controversy, and that the object of those who put is forward being not only innocent, but praiseworthy, inasmuch as they are intended thereby to advance the interests of religion and of the public, the publication of the book was not a misdemeanor, and consequently the book was not obscene within the statute."
"There is no doubt that all matters of importance to society may be made the subject of full and free discussion, but while the liberty of such discussion is preserved, it must not be allowed to run into obscenity, and to be conducted in a manner which tends to the corruption of public morals. THE PROBABLE EFFECT OF THE PUBLICATION BEING PREJUDICIAL TO ORDER, MORALITY, AND DEDENCY, THE APPELLANT MUST BE TAKEN TO HAVE INTENDED THE NATURAL CONSEQUENCE OF SUCH PUBLICATION, EVEN THOUGH THE BOOK WAS PUBLISHED WITH THE BEST INTENTION." (L.R. 7, C.P. p.268.)
Again, in the case of Landis, above referred to, the Supreme Court of Pennsylvania held:
A mistaken view of the defendant as to the character of the book, if it was in itself obscene and unfit for publication, would not excuse his violation of the law." (8 Phila., R. 434.)
Says Lord Chief Justice Cockburn:
"It cannot be said that because there are in many standard and established works objectionable passages, that therefore the law is not alleged on the part of the prosecution, namely, that obscene books are the subject of indictment." (Supra, 360.)
In U. S. vs. Bennett, indicted for mailing an obscene book, held:
"The question is whether this man mailed an obscene book, not why he mailed it. His motive may have been ever so pure. If the book he mailed is obscene he is guilty." (13 Blatchford, 28.)
In charging the jury in the case of U. S. vs. Heywood, Judge Clark, in the U. S. Court at Boston, said:
"An argument has been made here to show you that Mr. Heywood was a moral man and a well-behaved man, and that his design in publishing this work was a good one, and that he really believed the doctrine which he taught. But the Court says to you that such an argument cannot be received or considered by you, and cannot make any difference in the question of guilt or innocence. A man might believe that obscene things may be, and ought to be, corrected, and he may argue against them and publish for this purpose, but still the book might not be allowed to go through the mails if obscene in itself. It is not the design. There is no reference in the statute to the design that a man has in putting a book in the mail whether for a good or a bad purpose; but the law says explicitly that such a book shall not go through the mail, and that if anybody deposits it he is to be punished for it."
The foregoing language was quoted in the case of U. S. vs. Bennett. Justice Blatchford, in rendering the opinion of the Court, said:
"We are all of the opinion that there was no error in what was charged by the Court."
Says the highest Court of the State of Kentucky:
"When the Legislature has declared that a given act shall be deemed unlawful, the person voluntarily doing said act will be charged with a criminal intent, and the guilty knowledge will be presumed as a matter of law." (Waterman's notes to Arch. Crim. Pr. and Pl., vol. 2, p. 1031. Com. vs. Bull, 18 Ky., 666.)
But if all other courts are in error, the Court of Appeals has settled the law in the State of New York upon this question. In the Muller case, they say:
"The defendant's counsel, at the conclusion of the evidence, made several requests to charge, which were denied by the trial judge. The leading purpose of these requests was to induce the Court to lay down the rule, that the intent of the defendant, in selling a picture claimed to be indecent and obscene, is an important element in determining his guilt. The statute makes the selling of an obscene and indecent picture a misdemeanor. There is no exception by reason of any special intent in making the sale. The object of the statute was to suppress the traffic in obscene publications, and to protect the community against the contamination and pollution arising from their exhibition and distribution." (Supra, 413.)
Still another subject of importance must be considered, and that is
It is claimed by artists and liberals, that experts should be permitted to testify before a jury, and give their opinions as to whether a picture or book is obscene or indecent. Do ladies and gentlemen of ordinary intelligence require an artist to inform them whether a book or picture contains lewd and indecent suggestions or not? Must a physician be called in to tell whether a disease that has prostrated a person is liable to make him sick or not? The effect of the disease is felt by the one who is suffering, and he needs no one to tell him that it is an uncomfortable and unpleasant feeling. No more does a person require to be told when a book or picture is conveying obscene, lewd or indecent impressions, or whether the tendency of such impressions is to corrupt the young and inexperienced.
There has been much discussion because of the arrest of a Fifth Avenue art dealer. The artists of the city have published a protest, which I present in full in order to convey to the reader the "manly manner" in which these gentlemen propose to decide the question, whether the cheap French photographs complained of before the Court, by due process of law, are obscene or indecent.
Artists Oppose Comstock
Denouncing the arrest at Knoedler.
The agent's society, however, assumes all the responsibility.
At the regular semi-annual meeting of the Society of American Artists, held at No. 51 West Tenth Street, on Tuesday night, the following preamble and resolutions were unanimously adopted:
Whereas, We learn that the officers and agents of the Society for the Suppression of Vice, of this city, are interfering with the sale of photographic reproductions of works of some of the foremost living painters, on the grounds that the said works are bad in their influence on public morals; and,
Whereas, We believe that the study of the nude is necessary to the existence of any serious art whatever, and that the proper representation of the nude in art is not only innocent, but is refining and ennobling in its influence; and,
Whereas, We believe the popularization of such works of art by photography to be of the greatest educational benefit to the community;
Resolved, That we protest against this action of the Society for the Suppression of Vice as the work of incompetent persons, calculated to bring into bad repute one of the highest forms of art, and denounce such action as subversive to the best interests both of art and morality;
Resolved, That it is the sentiment of this meeting that the cause of art education in the United States and of higher education in general demands that measures be taken to restrain the agents of said society from exceeding the limits of the field in which its work properly belongs;
Resolved, That the members of the Society of American Artists, resident of New York, be invited to sign these resolutions for presentation to the public.
- Wm. M. Chase, president;
- H. Bolton Jones, vice-pres;
- Wm. A. Collin, secretary;
- Irving R. Wiles, treasurer;
- Augustus St. Gaudens,
- Eastman Johnson,
- J. Alden Weir,
- Kenyon Cox,
- E. H. Blashfield,
- D. W. Tryon,
- Will H. Low,
- H. Siddous Mowbray,
- Alvert B. Ryder,
- Carroll Beckwith,
- Bruce Crane,
- William Sartain,
- Francis C. Jones,
- Herbert Denman,
- W. M. J. Rice,
- Walter Shirlaw,
- Carleton Wiggins,
- T. W. Dewing,
- Frank Fowler,
- Wyatt Eaton,
- William S. Allen,
- John LaFarge,
- Chas. Melville Dewey,
- Olin L. Warner,
- R. W. Van Boskerck,
- Francis Lathrop.
The Evening Telegram followed this protest with an edition containing a number of representations, as they claimed, of the nude in art, intending to convey to the public mind that the pictures they thus printed and reproduced, were identical ones complained by us of. With the secular press ridiculing and misrepresenting our action, backed by the respectable names of these artists, the public were expected to form their judgment against the Society for the Suppression of Vice and its agents. For the information of these artists, and the public generally, we desire to state that some of these pictures, under which the warrant was issued in the case referred to, were before the General Term of the Supreme Court in the Muller case; and are duplicates of those upon which Muller was convicted. With these pictures before them, the General Term of the Supreme Court say of them:
"They are photographs of nude women in a variety of attitudes and postures, which the jury might very well, and naturally would, determine to be both indecent and obscene in their character; ordinarily they would be so pronounced, although they would not exert the same demoralizing and sensual effects upon all persons alike. Their judgment would be the same, that these photographs and pictures would tend to promote vicious and sensual misconduct, and prove injurious to the morals of the community, especially to those whose judgment and experience were not sufficient to control the impulses of their passions." (32 Hun, 28.)
The Court of Oyer and Terminer and the General Session of the Supreme Court reached that conclusion without any expert testimony, or without the assistance of any artist. Upon the trial of that case, however, artists were called by the defense, and their testimony was excluded by the Court. The exclusion of their testimony was made the subject matter of the appeal. The Court of Appeals, by a unanimous decision on that subject, says:
"It does not require an expert in art or literature to determine whether a picture is obscene, or whether printed words are offensive to decency and good morals. These are matters which fall within the range of ordinary intelligence, and a jury does not require to be informed by an expert before pronouncing upon them."
Again says the Court of Appeals:
"To permit such evidence would put the witness in the place of the jury, and the latter would have no function to discharge. The testimony of experts is not admissible upon matters of judgment within the knowledge and experience of ordinary jurymen. (1 Greenleaf's Ev. [Sec.] 440.)...The opinion of witnesses would not aid the jury in reaching a conclusion, and their admission would contravene the general rule that facts and not opinions are to be given in evidence."
As has already been stated, the Court unanimously sustained the verdict and rulings of the lower Courts, and conclude their judgment in the following words:
"The statute is an important one, and while it should have a reasonable and not strained construction, at the same time it ought to have such a practical interpretation by the Court and jury as will subserve the important purpose of this enactment." (96 N.Y. 413.)
To say that art cannot be obscene, lewd and indecent in the sense of corrupting, or tending to corrupt and deprave the minds of the young and inexperienced, is to deny a self-evident proposition.
There is nothing on earth more chaste and beautiful than a modest and chaste woman, unless it be that of innocent childhood, and that chastity every chivalrous man ought to defend and protect. The nude in art is a menace upon this chastity. The youth of this country to-day are being cursed with the dissemination of pictures where woman is exposed to vulgar gaze, through the medium of photography and art. There is nothing more repulsive than an unchaste women; there is nothing more seductive than a beautiful woman. Art has been employed to reproduce and represent all of these characteristics. And when art lends its charms to the seduction of the harlot, the law stretches out its strong arm over the heads of innocent children and says, "You shall not approach these innocent ones and contaminate them." The American artists, in their hasty and inconsiderate action, have placed themselves in a very deplorable position. Not a single one of the signers of this card have had the manliness, either before issuing their card, or since, to come to our office and ascertain what the facts are.
It may well be asked, Is the indiscriminate sale of lewd French photographs, or photographs of lewd French works of art, so material to the success of American artists that they must rise up in a body and protest against the enforcement of the law upon the sound principles established in the Courts during the last century and a half? We do not propose to put ourselves upon a level with those who assail any man's reputation without a hearing, and therefore we desire to state that we believe that most of the gentlemen who signed that paper signed it ignorantly. That brings up the question of their right to sign such a paper without having the fairness to come and ascertain the facts before stabbing this society and its agents in the dark. There is, also, another question, can these gentlemen afford to thus assail our efforts or throw their influences against public morals?
The principles set out in this pamphlet are those which govern the control and enforcement of the law against the evils that strike at the morals of the young.
Public morals stand first in importance; and that cause is so high and holy that were the opposition ten-fold what it is, and the misrepresentation ten-fold as unjust and unmanly as it has been in the past, the organization that has the enforcement of these laws for the protection of the moral purity of the youth of this country in hand, will not hesitate or flinch at pursuing its course. Our case is one of the noblest, and, next to the church of Christ, is doing one of the grandest works of this age.
You will ask, How has this work been carried on and sustained? It has been carried on by faith in, and prayer to, God. It has been supported by voluntary contributions on the part of good men, and by our holding firm to the principles as laid down by the courts in the past. This organization has secured legislation both in Congress and also in the States where laws against obscenity did not exist.
Year after year these laws have been assailed by the so-called "National Defense Association," and so-called "Liberals," "Free Thinkers," "Free Lovers," and ex-convicts of this nation. The secular press of this city, by the pressure of indictment in the courts, have been forced, many of them, to discontinue unlawful advertisements. Hence the animosity of some papers against this organization. In addition to these hardships a creature unworthy of the name of man, residing in Philadelphia, has, for more than two years, been endeavoring to undermine our standing and character by sending around libelous publications to the contributors and friends of this cause, seeking to turn away the respect and sympathy of good men, and undermine the cause of moral purity, as represented by this society. The assaults of this moral assassin are made up of pure fiction, and statements containing the basest falsehoods. Notwithstanding all opposition, this work has gone steadily forward, until we have achieved the grand results set out in the following record.
After fifteen years of faithful service, are we to be stripped of honorable name and reputation, when, by due process of law, we invoke the decisions of the courts and principles of law herein set forth, in the interest of moral purity of the children to-day? Is it too much for us to ask, that respectable men and women will not condemn us upon the libels of a moral assassin, or the misrepresentations of a secular press, until they have first had the fairness to come to our office and investigate as to what the facts are? If they shall find anything proven to our discredit, with a full knowledge of the facts and circumstances before our minds, then such are at liberty to make known to the public their finding. We challenge, and have challenged, the press and our enemies to come and secure the facts, and with the assistance of these facts, and the records of our office, prove anything to our discredit. Yet, notwithstanding that, not one of them has essayed to thus test us, we must be held up to the public as lacking judgment, discretion, without ordinary intelligence, and withal lose our good name because we have endeavored, by due process of law, to enforce the laws of the State of New York and the United States against that insidious and deadly foe, to the moral purity of the children of this country -- obscenity.
We are charged with lack of judgment. It is, however, a little significant of good judgment and wise and judicious management somewhere, by some one at least, that out of one hundred and twenty one indictments secured by us brought to trial since January 1, 1887, a judgment of conviction has been secured in one hundred and eighteen cases.
Two that escaped were clerks who were dismissed because we had discovered and convicted the principals, while the other was a case which we prosecuted upon evidence brought by others.
We ask the careful consideration of thoughtful men to the following tabular statement, showing what has been accomplished during a part of 1887, and then what has been accomplished since the inception of this work in 1872:
Showing a part of the work accomplished by THE NEW YORK SOCIETY FOR THE SUPPRESSION OF VICE,
From January 1, 1887 to December 21, 1887
87 persons arrested.
121 convictions or pleas of guilty.
98 sentences imposed, making a total of 88 years, 7 months, and 25 days imprisonment, and fines amounting to $6,005.
In twenty instances sentence has been suspended, or the parties await sentence.
27 obscene papers.
107 obscene books.
792 obscene figures.
20,643 obscene pictures.
25,300 obscene circulars, songs, etc.
56 articles of indecent or immoral use.
2,908 negatives for printing or making obscene photographs.
Over one half a ton of lottery circulars; also more than a ton of gambling implements, etc. In addition to the above, there are many cases to be arrested, where evidence has already been secured. A large number of cases await trial in the various courts.
Grand Total to Date
1,232 persons arrested.
738 persons convicted.
263 years, 7 months, 25 days of imprisonment imposed.
$85,215.95 fines inflicted, and $71,700 bail bonds forfeited, making a total to the public treasury of $156,915.95
Not one dollar of these finds, etc., have gone to the Society for the Suppression of Vice.
And more than 49 tons of matters seized.
Must we stop to brand blackguards and liars by their right names before people will believe our efforts honest, our motives pure, and our methods sound?