7 In Conclusion
No book, no matter by whom it is written, should be read without an appreciation of the motive of its writing. It is the embarrassment of a case such as this, that the very fact of an indictment, the notoriety attending it, makes it difficult to sit down to the reading with the frame of mind that is present when we take a book from a library shelf. However one may attempt to resist it, there is always present a certain feeling, if somebody has said that the book is indecent. That suggestion can influence minds, even the most philosophical. In Lord Haldane’s most recent book, “The Philosophy of Humanism” (p. 75), he quotes from the memoirs of the great German philosopher, Hegel, as illustrating how suggestion can lead to conceptions:—
“In my youth I remember hearing a city magistrate complain that book writers were going too far, and trying to rout out Christianity altogether. Some one, it appeared, had written a defense of suicide. It was horrible, too horrible! On further inquiry it turned out that the book in question was ‘The Sorrows of Werther’.”
The last resort against this influence of suggestion is now made. The book is submitted to this court for judicial scrutiny, guided by the tests of the law.
Dated October 16, 1922.
Respectfully submitted,
Goodbody, Danforth & Glenn,
Attorneys for Defendants,
27 Cedar Street,
New York City.
Garrard Glenn
(42 Broadway),
William U. Goodbody,
William L. Glenn, of Counsel.
DECISION OF JUDGE CHARLES C. NOTT
IN PEOPLE VS. HOLT, McBRIDE
& CO., ET AL
People
vs.
Holt, McBride & Co. et al.
The defendants herein, at the close of the People’s case, have moved for a direction of acquittal and the dismissal of the indictment on the ground that the book “Jurgen” on the possession of which the indictment is based, is not an “obscene, lewd, lascivious, filthy, indecent or disgusting book” within the meaning and intent of section 1141 of the Penal Law, for the alleged violation of which the indictment has been found.
I have read and examined the book carefully. It is by Mr. James Branch Cabell, an author of repute and distinction. From the literary point of view its style may fairly be called brilliant. It is based on the mediæval legends of Jurgen and is a highly imaginative and fantastic tale, depicting the adventures of one who has been restored to his first youth but who, being attended by a shadow in the guise of the shadow of his old self, retains the experience and cynicism of age which frustrates a perfect fulfillment of his desire for renewed youth.
The adventures consist in wanderings through mediæval and mythological countries and a sojourn in Hell and Heaven. He encounters beings of mediæval folk-lore and from classical Mythology. The most that can be said against the book is that certain passages therein may be considered suggestive in a veiled and subtle way of immorality, but such suggestions are delicately conveyed and the whole atmosphere of the story is of such an unreal and supernatural nature that even these suggestions are free from the evils accompanying suggestiveness in more realistic works. In fact, it is doubtful if the book could be read or understood at all by more than a very limited number of readers.
In my opinion the book is one of unusual literary merit and contains nothing “obscene, lewd, lascivious, filthy, indecent or disgusting” within the meaning of the statute and the decisions of the courts of this state in similar cases. (See Halsey v. New York Society, 234 N. Y. 1; People v. Brainard, 192 App. Div. 116; St. Hubert Guild v. Quinn, 64 Misc. 336.)
The motion, therefore, is granted and the jury is advised to acquit the defendants.
STATUTES RELATING TO THE PUBLICATION,
SALE, ETC., OF OBSCENE
LITERATURE
Penal Law—Sections 1141 and 1143
Sec. 1141. Obscene prints and articles. 1. A person who sells, lends, gives away or shows, or offers to sell, lend, give away, or show, or has in his possession with intent to sell, lend or give away, or to show, or advertises in any manner, or who otherwise offers for loan, gift, sale or distribution, any obscene, lewd, lascivious, filthy, indecent or disgusting book, magazine, pamphlet, newspaper, story paper, writing, paper, picture, drawing, photograph, figure or image, or any written or printed matter of an indecent character; or any article or instrument of indecent or immoral use, or purporting to be for indecent or immoral use or purpose, or who designs, copies, draws, photographs, prints, utters, publishes, or in any manner manufactures, or prepares any such book, picture, drawing, magazine, pamphlet, newspaper, story paper, writing, paper, figure, image, matter, article or thing, or who writes, prints, publishes, or utters, or causes to be written, printed, published, or uttered, any advertisement or notice of any kind, giving information, directly or indirectly, stating, or purporting so to do, where, how, of whom, or by what means any, or what purports to be any, obscene, lewd, lascivious, filthy, disgusting or indecent book, picture, writing, paper, figure, image, matter, article or thing, named in this section can be purchased, obtained or had or who has in his possession, any slot machine or other mechanical contrivance with moving pictures of nude or partly denuded female figures which pictures are lewd, obscene, indecent or immoral, or other lewd, obscene, indecent or immoral drawing, image, article or object, or who shows, advertises or exhibits the same, or causes the same to be shown, advertised, or exhibited, or who buys, owns or holds any such machine with the intent to show, advertise or in any manner exhibit the same; or who,
2. Prints, utters, publishes, sells, lends, gives away or shows, or has in his possession with intent to sell, lend, give away or show, or otherwise offers for sale, loan, gift or distribution, any book, pamphlet, magazine, newspaper or other printed paper devoted to the publication, and principally made up of criminal news, police reports, or accounts of criminal deeds, or pictures, or stories of deeds of bloodshed, lust or crime; or who,
3. In any manner, hires, employs, uses or permits any minor or child to do or assist in doing any act or thing mentioned in this section, or any of them,
Is guilty of a misdemeanor, and, upon conviction, shall be sentenced to not less than ten days nor more than one year imprisonment or be fined not less than fifty dollars nor more than one thousand dollars or both fine and imprisonment for each offense.
Sec. 1143. Mailing or carrying obscene prints and articles. A person who deposits, or causes to be deposited, in any post-office within the state, or places in charge of an express company, or of a common carrier, or other person, for transportation, any of the articles or things specified in the last two sections, or any circular, book, pamphlet, advertisement, or notice relating thereto, with the intent of having the same conveyed by mail or express, or in any other manner, or who knowingly or wilfully receives the same, with intent to carry or convey, or knowingly or wilfully carries or conveys the same, by express, or in any other manner except in the United States mail, is guilty of a misdemeanor.
Footnotes
1 “James Branch Cabell is making a clean getaway with Jurgen, quite the naughtiest book since George Moore began ogling maidservants in Mayo. How come? Dreiser had the law hot after him for The Genius and Hager Revelly came close to landing Daniel Carson Goodman in Leavenworth, yet these volumes are innocent compared with Jurgen, which deftly and knowingly treats in thinly veiled episodes of all the perversities, abnormalities and damn-foolishness of sex. There is an undercurrent of extreme sensuality throughout the book, and once the trick of transposing the key is mastered one can dip into this tepid stream on every page. Cabell has cleansed his bosom of much perilous stuff—a little too much, in fact, for Jurgen grows tiresome toward the end—but he has said everything about the mechanics of passion and said it prettily. He has a gift of dulcet English prose, but I like better the men who say things straight out and use gruff Anglo-Saxon monosyllables for the big facts of nature that we are supposed to ignore.
“It is curious how the non-reading public discovered Jurgen. A few days after it appeared on the newsstands a male vampire of the films who once bought Stevenson’s Underwoods in the belief that it was a book of verses hymning a typewriter, began saying up and down Broadway: ‘Say, kid, get a book called Jurgen. It gets away with murder.’
“This sold the first edition quickly. How do they discover these things?”
Walter J. Kingsley.
2 See page 77.
3 “John S. Sumner, Agent New York Society for the Suppression of Vice, being duly sworn, says: That on the 6th day of January, 1920, and prior, and sworn thereto at the city and county aforesaid Robert M. McBride & Company, a corporation, and Guy Holt, manager of said corporation, Book Department, did at No. 31 East 17th Street in the city and county aforesaid, unlawfully print, utter, publish, manufacture and prepare, and did unlawfully sell and offer to sell and have in their possession with intent to sell a certain offensive, lewd, lascivious and indecent book, in violation of Section 1141 of Penal Code of the State of New York. At the time and place aforesaid, the said Robert M. McBride & Company by and through its officers, agents and employees did print, publish, sell and distribute and on information and belief the said Guy Holt did prepare for publication and cause to be printed, published, sold and distributed a certain book entitled Jurgen by one James Branch Cabell, which said book represents and is descriptive of scenes of lewdness and obscenity, and particularly upon pages 56, 57, 58, 59, 61, 63, 64, 67, 80, 84, 86, 89, 92, 93, 98, 99, 100, 102, 104, 105, 106, 107, 108, 114, 120, 124, 125, 127, 128, 134, 135, 142, 144, 148, 149, 150, 152, 153, 154, 155, 156, 157, 158, 161, 162, 163, 164, 165, 166, 167, 168, 170, 171, 174, 175, 176, 177, 186, 196, 197, 198, 199, 200, 203, 206, 207, 211, 228, 229, 236, 237, 238, 239, 241, 242, 271, 272, 275, 286, 321, 340, 342, 343, thereof, and which said book is so obscene, lewd, lascivious and indecent that a minute description of the same would be offensive to the Court and improper to be placed upon the records thereof. Wherefore a fuller description of the same is not set forth in this complaint....”
4 COURT OF GENERAL SESSIONS OF THE PEACE IN AND FOR THE COUNTY OF NEW YORK
People of the State of New York:
vs
Guy Holt, Robert M. McBride & Co.,
and Robert M. McBride:
THE GRAND JURY OF THE COUNTY OF NEW YORK by this indictment, accuse Guy Holt, Robert M. McBride & Co. and Robert M. McBride of the crime of UNLAWFULLY POSSESSING AN INDECENT BOOK, committed as follows:
The said Guy Holt, Robert M. McBride & Co., a corporation at all times herein mentioned existing under the laws of the State of New York, and Robert M. McBride, acting together and in concert, in the County of New York aforesaid, on the 14th day of January, 1920, and for a considerable time prior thereto, with intent to sell and show, unlawfully possessed a lewd, lascivious, indecent, obscene and disgusting book entitled JURGEN, a more particular description of which said book would be offensive to this Court and improper to be spread upon the records thereof, wherefore such description is not here given; against the form of the statute in such case made and provided, and against the peace of the people of the State of New York, and their dignity.
Edward Swann,
District Attorney.
5 The numerals in parentheses refer to the pages.
[6] (Cf. the old Scottish Border legend, “The Eve of St. John”, to be found in Scott’s “Minstrelsy of the Scottish Border”; and Compton Mackenzie’s latest novel, “Altar Steps”.)
7 It would be impossible to go further except by quoting all (290–308). It should be read.