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Title: Jurgen and the law
        A statement, with exhibits, of the Court's opinion, and the brief for the defendants on motion to direct an acquittal

Editor: Guy Holt

Release date: August 24, 2023 [eBook #71475]

Language: English

Original publication: United States: Robert M. McBride & Company, 1922

Credits: Charlene Taylor, Terry Jeffress and the Online Distributed Proofreading Team at https://www.pgdp.net (This file was produced from images generously made available by The Internet Archive/American Libraries.)


*** START OF THE PROJECT GUTENBERG EBOOK JURGEN AND THE LAW ***





                          Jurgen and the Law




                  _This edition is limited to one thousand
                  and eighty numbered copies, of
                  which one thousand are for sale._

                           _Copy Number_ 675




                          JURGEN AND THE LAW


                              A STATEMENT

           With Exhibits, including the Court’s Opinion, and
                the Brief for the Defendants on Motion
                        to Direct an Acquittal

                               EDITED BY
                               GUY HOLT


                            [Illustration]

                               NEW YORK
                      ROBERT M. McBRIDE & COMPANY
                                 1923




                          Copyright, 1922, by
                       +Robert M. McBride & Co.+


                            Printed in the
                       United States of America


                       Published, January, 1923




                          JURGEN AND THE LAW
                             A STATEMENT




                              A STATEMENT


If Mr. Cabell had not pre-empted the phrase, the words with which he
characterized the tale _Jurgen_ might well be used as a title for
an account of the tale’s adventures with the law. Those adventures,
which the matter of this book commemorates no less effectively than it
helped to divert them from a less happy outcome, form indeed a comedy
of justice: a comedy which, perhaps, aroused more of indignation than
of mirth, and which, in its duration, somewhat exceeded the time-limit
that a canny dramatist allots himself, but which ended appropriately on
a note of justice, and thus showed Mr. Cabell to be not only the maker
of a happily descriptive phrase but also somewhat of a prophet.

Well, the comedy of _Jurgen’s_ suppression is ended. The book is
admitted once more to the freedom of the library, and the pawnbroker
is again at liberty to wander throughout the universe in search of
rationality and fair dealing. And in due course, time and the wisdom of
other generations will decide whether the pawnbroker, or the book, or
the adventures of either be in any way memorable.

Today, however, the vicissitudes of _Jurgen_ are of indisputable
importance, if only because similar misfortunes may overtake yet
other publications. At the moment it appears that the position of
literature is less precarious than it has been in the recent past.
For the courts, of late, with gratifying accord have failed to detect
obscenity in a number of volumes at which professional righteousness
has taken offense, and there apparently is cause to hope that legal
precedent will dispel the obscurity which so long has surrounded
decency--within the meaning of the statute. Yet it is still possible
for an incorporated organization to waylay and imprison art: to
exercise by accusation a censorship which impermanence makes no less
dangerous. Until the difference between the liberty permitted to art
and the license forbidden to the vulgar be clearly defined, it remains
impossible for any artist to foreknow how fully he may describe
and thereby interpret life as he sees it, or for the community to
enjoy uninterrupted access to much of the best of ancient and modern
literature.

In the pages which follow is printed an argument that expressly defines
the test whereby that which is legally permissible and that which is
prohibited may be determined. It is, explicitly, an argument in behalf
of _Jurgen_, submitted at the trial of the publishers of that book: and
it is published in book form, in part because of its intrinsic interest
to all readers of Cabell, in part because it is a valuable addition to
the literature of censorship. But here there seems need to preface the
argument with a brief history of the _Jurgen_ case.


                                  II

It is now a trifle less than three years ago that a Mr. Walter J.
Kingsley, a theatrical press agent, sent to the literary editor of a
New York newspaper a letter[1] directing attention to James Branch
Cabell’s _Jurgen_ as a source of lewd pleasure to the sophisticated and
of menace to the moral welfare of Broadway. Hitherto _Jurgen_ had found
some favor with a few thousands of discriminating readers; it had been
advertised--with, its publishers must now admit, a disregard of the
value of all pornographic appeal--as literature. Critics, with varying
degrees of enthusiasm, had applauded the book as a distinguished
addition to American letters; three editions had been printed and the
tale promised to enjoy the success to which its wit, its beauty and
the profundity of its theme entitled it. No one, until Mr. Kingsley
broke silence, had complained of _Jurgen_ as an obscene production;
no letters of condemnation had been received by the publishers; and
the press had failed to suggest that decorum, much less decency, had
anywhere been violated.

Mr. Kingsley’s letter altered affairs. Immediately a chorus in
discussion of _Jurgen_ arose. In the newspapers appeared many letters,
some in defense of the book, others crying Amen to Mr. Kingsley. Within
a week, the merry game of discovering the “key” to _Jurgen_ was well
under way and a pleasant, rather heated controversy had begun. In the
upshot some one sent a clipping of the Kingsley letter to Mr. John S.
Sumner, secretary of the New York Society for the Suppression of Vice,
calling upon him to do his duty. Mr. Sumner procured a copy of the
book, and, on January 14th, 1920, armed with a warrant, he entered the
offices of the publishers, seized the plates and all copies of the book
and summoned the publishers to appear in court the following day on a
charge of violating section 1141 of the Penal code.[2]

Thereafter the record is uneventful. Mr. Sumner’s complaint[3] was
duly presented and the case was called for formal hearing in the
magistrate’s court on January 23. Upon that date the defendants
waived examination and the case was committed for trial in the Court
of Special Sessions. The trial was set for March 8, but upon motion
of Mr. John Quinn, then Counsel for the Defense, who appeared before
Justice Malone, the case was submitted for consideration to the Grand
Jury which found an indictment against the publishers[4] thereby
transferring the case to the Court of General Sessions and enabling
the defendants to secure a trial by jury. On May 17, 1920, the
publishers pleaded not guilty ... and, until October 16, 1922, awaited
trial.

For, in New York, a “crime wave” was in progress. The courts were
crowded with cases which involved other than a possible technical
violation of the laws; and, however anxious to rid the docket of the
_Jurgen_ case, neither the courts nor the District Attorney’s office
could do other than give precedence to the trials of persons charged
with more serious offenses.

On October 16, then, two and one half years after the indictment, the
_Jurgen_ case was called before Judge Charles C. Nott in the Court of
General Sessions. A jury was drawn, the book was submitted in evidence
and the people’s case was presented. The defendants, through their
attorneys, Messrs. Goodbody, Danforth and Glenn, and their counsel,
Mr. Garrard Glenn, moved for the direction of a verdict of acquittal,
submitting, in behalf of their motion, the brief which is printed
hereinafter. The trial was adjourned for three days; and on October 19,
1922, Judge Nott rendered his decision, which also appears hereinafter,
and directed the jury to bring in a verdict of acquittal.


                                  III

There ends the record of the tale _Jurgen’s_ adventures with the law.
The record is, as has been said, uneventful. A book had been impugned,
that is all. An author had been vilified and his publishers indicted;
certain thousands of readers had been deprived of access to a book
which critical opinion had commended to their interest; and author and
publishers both had been robbed of the revenues from whatever sale
the book might have had during the nearly three years in which it was
removed from publication.

True, Mr. Cabell and his book had received much publicity.... There
is a legend, indeed, that the author of _Jurgen_ (and of a dozen
other distinguished books) owes much of his present place in letters
to the advertising which Mr. Sumner involuntarily accorded him. But
one may question that. An examination of the publishers’ files seem
to show that most of the expressions of admiration for _Jurgen_ were
repetitions of an enthusiasm expressed before the book’s “suppression.”
And if the enthusiasm and the sympathy of Mr. Cabell’s admirers were
hearteningly evident, the attacks of his detractors did not flag;
and an inestimable number of persons, knowing Mr. Cabell’s work only
through the recorded opinions of Messrs. Kingsley and Sumner, did
certainly condemn him unread and, shuddering, barred their library
doors against him.... No, Mr. Cabell owes no debt of thanks to the
accusers of _Jurgen_.

But all this is by the way. The argument, which appears in the
following pages, is of importance not alone because it so ably defends
_Jurgen_, but because it defines, more clearly than any other recent
document, the present legal status of literature in America in relation
to permissible candor in treatment and subject matter. The brief is
not in any sense an argument in behalf of unrestricted publication of
any matter, however obscene, or indeed in behalf of the publication
of obscenity in any form. It is not a denial of the community’s right
to protect itself from offenses against good taste or against its
moral security, or to punish violation of the laws by which the public
welfare is safe-guarded.

But one need not be an apologist of license to perceive that there is
in a thoughtful consideration of every aspect of life no kinship to
indecency; or to perceive that the community cannot, without serious
danger to its own cultural development, ignore the distinction between
the artist’s attempt to create beauty by means of the written word, and
the lewd and vulgar outpourings of the pornographer. When these two
things are confused by a semi-official organization which is endowed
with suppressive powers, even when the courts fail to sustain its
accusations, the menace to the community is measurably increased. As
a protection against this menace the brief presents, with admirable
clarity, a legal test, the validity of which common sense will readily
recognize, for the determination of literature as distinct from
obscenity.

                                                       +Guy Holt.+

  New York City,
  November 14, 1922.




                      BRIEF FOR THE DEFENDANTS ON
                          MOTION TO DIRECT AN
                               ACQUITTAL




                        INDEX

                                                    PAGE

        I. The question presented is one of law,
           which the Court should decide             20

       II. The test is the literary as distinct
           from the pornographic                     21

      III. In applying this test, all reasonable
           doubt should be resolved in favor of
           the book                                  30

       IV. In judging the book by the standards
           above indicated, it must be read as a
           whole, and, on that basis, it must be
           upheld even though it may contain
           portions which would not stand the
           test if isolated                          31

        V. The book, read as a whole, sustains the
           test of the law                           34

       VI. The passages, to which reference has
           been made in the complaint originally
           filed in Special Sessions, are
           not indecent                              57

      VII. In conclusion                             68




                Court of General Sessions of the Peace

                  IN AND FOR THE COUNTY OF NEW YORK.

  -------------------------------
  +People of the State of New+   }
            +York+               }
                                 }
           AGAINST               }
                                 }
  +Guy Holt, Robert M. McBride+  }
    +& Company+ and              }
    +Robert M. McBride+.         }
  -------------------------------


        Brief for Defendants on Motion to Direct an Acquittal.

The defendants have moved for a directed acquittal at the close of the
People’s case. The defendants did not dispute upon the trial the facts
which went to make up such case as the People had. That case is that
the defendants had in their possession, with intent to sell (they are
publishers) a book, “Jurgen”, by Mr. James Branch Cabell; and it is
contended that the book is lewd and obscene within Section 1141 of the
Penal Law.




1--The Question presented is one of law, which the Court should decide.


The rule here to be applied is that obtaining in all criminal cases. It
is the Court’s duty to direct an acquittal when the People’s case has
failed to show guilt beyond a reasonable doubt.

          _People_ v. _Gluck_ (188 N. Y. 167);
          _People_ v. _Smith_ (84 Misc. 348);
          _Babcock_ v. _People_ (15 Hun 347).

The indictment is for having in possession with intent to sell, a book
offending against Section 1141 of the Penal Law. Since the defendants
do not dispute the fact that they did have in their possession the
book with intent to sell it, the simple question is whether this book
violates the criminal law of this state as expressed in the section of
the Penal Law above noted.

While it is sometimes said that this question is one of fact, upon
which it is the function of a jury to pass, nevertheless it is clear
that, when the defendant raises the question whether the book, as a
matter of law, violates the statute, that question is one of law upon
which it is the duty of the court to pass.

          _People_ v. _Brainard_ (192 App. Div. 816);
          _Halsey_ v. _New York Society_ (234 N. Y. 1).

      “It is true that whether the book offends against this statute
      is ordinarily a question of fact for the jury in the first
      place to determine. It is equally true that upon the review of a
      conviction for having offended against this provision, it is the
      duty of this court to examine the publication and see whether
      the conviction can be sustained under the facts proven. Upon an
      examination of the book I am satisfied that neither defendant
      has been guilty of the offense charged in the information, and
      for this reason the judgment and conviction of the defendant
      corporation, as well as the defendant Brainard, should be
      reversed and the information dismissed.” (_People_ v. _Brainard_,
      192 App. Div. 816, 821.)




2--The test is the literary as distinct from the pornographic.


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.




3--In applying this test, all reasonable doubt should be resolved in
favor of the book.


The courts, to repeat, apply the simple test of literature as distinct
from the mere portrayal of the obscene. And in getting at whether a
thing is literature, they are not disposed to substitute their judgment
for that of others who speak of the book in the spirit of sincerity;
nor are they disposed to tip the scales, even if people of that sort
differ in their conclusions. “We have quoted”, says Andrews, _J._, in
the latest case, “estimates of the book as showing the manner in which
it affects different minds. The conflict among the members of this
court itself points a finger at the dangers of a censorship entrusted
to men of one profession, of like education and similar surroundings.”
(_Halsey_ v. _N. Y. Society_, 234 N. Y. 1, 6.) Likewise, the opinions
in _St. Hubert’s Guild_ v. _Quinn_ (64 Misc. 336), and _Matter of
Worthington_ (30 N. Y. Supp. 363; 24 L. R. A. 110) refer to various
criticisms of the books involved, as do the opinions of Magistrate
Simpson and Magistrate Oberwager in the very recent (and still
unreported) cases of _People_ v. _Seltzer_ and _People_ v. _Salsberg
and Boni & Liveright_. In all of those cases the criticisms were
contained in book or magazine form, which were available to the Court.
In the present case the various criticisms of the book here involved
are not available in such form, and consequently we are submitting
herewith copies of letters and newspaper clippings containing the
opinions of many competent critics concerning that book, which we
respectfully ask this Court to consider in rendering its decision upon
this motion.




4--In judging the book by the standards above indicated, it must be
read as a whole, and, on that basis, it must be upheld even though it
may contain portions which would not stand the test if isolated.


From what has already been said another conclusion follows:--The book
is to be judged not by isolated passages in it, but by the whole book.
Peculiarly is this true in the present case, where the book at large
is indicted, not parts of it, as was the case when complaint was made
in Special Sessions, but all of it without reference to any particular
part. That, when a book is indicted as a whole, no judgment can be
passed upon it which is not based upon a reading of the whole, with the
necessary test of correlation which this entails, would seem manifest
on its face. But in view of certain expressions which judicially fell
in the federal case of _U. S._ v. _Bennett_ (16 Blatchf. 338; Fed. Cs.
No. 14,571), it is just as well to refer to the fact that, both in
England and in this State, the test is the whole book, not isolated
parts to which it may please the prosecutor to point an accusing finger.

          _Halsey_ v. _N. Y. Society_ (234 N. Y. 1);
          _Fitzpatrick’s Case_ (31 How. St. Tr. 1170, 1186).
          _St. Hubert’s Guild_ v. _Quinn_ (64 Misc. 336).

      “The judgment of the court below is based upon a few passages
      in each of these works, and these passages have been held to be
      of such a character as to invalidate the contract upon which the
      action has been brought. These few passages furnish no criterion
      by which the legality of the consideration of the contract can be
      determined. That some of these passages, judged by the standard
      of our day, mar rather than enhance the value of these books can
      be admitted without condemning the contract for the sale of the
      books as illegal. The same criticism has been directed against
      many of the classics of antiquity and against the works of some
      of our greatest writers from Chaucer to Walt Whitman, without
      being regarded as sufficient to invalidate contracts for the sale
      or publication of their works.”

          _St. Hubert Guild_ v. _Quinn_ (64 Misc. 336, 339).

      “No work may be judged from a selection of such paragraphs alone.
      Printed by themselves they might, as a matter of law, come within
      the prohibition of the statute. So might a similar selection from
      Aristophanes or Chaucer or Boccaccio or even from the Bible. The
      book, however, must be considered broadly as a whole.”

          _Halsey_ v. _N. Y. Society_ (234 N. Y. 1, 4).

The proposition thus laid down is nothing but common sense,--the common
sense which was expressed, over a century ago, in a trial in the Irish
King’s Bench, for the publication of an alleged libel:

      “Mr. Burrowes.--My lords, I beg to know, whether the Court be of
      opinion, that without any averment respecting other passages in
      the book, the counsel for the crown are entitled to read them.

      Mr. Justice Day.--In order to show the _quo animo_, they may read
      those other passages.

      Mr. Justice Osborne.--I think they have such right, as evidence
      of the intention.

      Lord Chief Justice Downes.--And the defendant, if he thinks fit,
      may read all the rest of the book.” (_Fitzpatrick’s Case_, 31
      Hows. St. Tr. 1170, 1186.)

It follows that if the book must be taken as a whole, then it cannot
be condemned piecemeal. No part can be read without a mind to its
relation to the whole. In the latest case on the subject, Andrews _J._,
speaking for the majority of the court, twice concedes that, taken by
themselves, certain parts of the book are not to be justified:

      “It contains many paragraphs, however, which taken by themselves
      are undoubtedly vulgar and indecent. * * * On the other hand, it
      _does_ contain indecent paragraphs.”

          _Halsey_ v. _N. Y. Society_ (234 N. Y. 1, 4, 6).

Yet the book was upheld for all that, both because, in the words
which the court adopted from the late Professor Wells of Sewanee, the
author there involved “helps us over the instinctive repulsion that
we feel for the situation”, and because he excites “a purely artistic
interest”, etc. (_Halsey_ v. _N. Y. Society_, 234 N. Y. 1, 5.)




5--The book, read as a whole, sustains the test of the law.


The following has been prepared by counsel, with full appreciation of
the fact that the book under review must, in the last analysis, speak
for itself, and that every book makes its different impression on each
mind that it reaches. The only possible aid to reflection which this
writing can constitute therefore, lies in such suggestion as it fairly
may convey, that Mr. Cabell’s book is literature, in the accepted sense
of that term, which is, as the foregoing brief shows, the legal sense
as well. It presents a theme and its object is to stimulate reflection.

The book in question is a criticism of life. It treats with satire
certain of the thoughts so current among us. It is Matthew Arnold and
Carlyle in different guise. But the guise adopted is not new or novel.
In the Sixteenth Century Erasmus put forth his comments on the ruling
ideas of his time by writing a book “In Praise of Folly”. Mr. Cabell
has adopted the same method of treatment. To his book can be applied
the words which Professor Wells spoke of a book which our Court of
Appeals has recently held _not_ to be within the condemnation of the
statute invoked in the present case: “With a springboard of fact in
the seventeenth century to start from, he * * * transfers the adventures
from the real world to a sort of forest of Arden, where the Rosalind of
Shakespeare might meet a Watteau shepherdess and a melancholy Jacques.”
(_Halsey_ v. _N. Y. Society_, 234 N. Y. 1, 5.)

But that is not the only motive of the book. It deals also with
aspirations for the unattainable, aspirations which it falls to the
lot of some men to feel,--aspirations whose portrayal finds expression
in books ranging from Goethe’s “Faust” to Sinclair Lewis’s “Babbitt”.
These are things which, to use the words of Magistrate Simpson in
the recent (and still unreported) case of _People_ v. _Seltzer_,
are not “naturally calculated to excite in the susceptible impure
imaginations”. And if we want a moral lesson, we have it, because these
desires are shown to be useless. _The conventional cannot be escaped by
fleeing to sin, for wickedness itself is conventional._

And may we observe in passing that the author, Mr. Cabell, is no
radical? He makes no plea for reform by way of sociological experiment.
Indeed, as expressed in “Beyond Life”, his contempt for sociology has
been condemned by one of the apostles of the new Reign of Science and a
lecturer in the Rand School (Robinson, “The Mind in the Making”, page
208). “What we want”, said Mr. Gradgrind, “are facts”. Mr. Cabell’s
book now under attack deals with things not within the spectrum of the
Gradgrind School,--eternal things which continue whether the world
happens to be of the “New Philosophy” mode of thinking, or to have
returned to the Age of Faith. How well he succeeds with what he has
undertaken is quite another matter; in law it is sufficient that he has
assumed the task. And with this in mind, the following undertakes to
tell what one reader, at least, may think that “_Jurgen_” is about.

Jurgen’s name is “derived from jargon, a confused chattering such as
birds give forth at sunrise” (183).[5] He is a pawnbroker, and he lives
in Poictesme, but it might just as well be Kennaquhair. In his youth
he had been in love with a Lady Dorothy; at forty-four we find him
a pawnbroker, settled down to business, with a wife who has all the
virtues of the good wife; somewhat henpecked, longing, like Sinclair
Lewis’ Babbitt, for he knows not what. He has not the culture of Faust,
he is not a Ph.D.; but, like the doctor of Leipzig whose venturings as
set forth in legend attracted Marlowe and then Goethe, Jurgen yearns
for “the distant land”, where he shall be able “to grasp infinite
nature”. He thinks that he is a “monstrous clever fellow”;--so did
Faust, the learned doctor,--in the end he reaches his salvation through
a return to the routine from whence he came. Like Faust he assumes to
unravel a tangled knot. Life is a riddle, nature is a mystery, justice
has an indefinable basis. The learned man in Goethe’s poem seeks
to find out why these things are so; Mr. Cabell’s hero is a man of
ordinary station, but he, too, pursues the quest.

Jurgen passes from his routine of life, as Faust does, through
communion with spirits that partake of the power of darkness. It all
starts with one night when, on his way home from a day of trafficking
in his shop, Jurgen passes a Cistercian monk who, having stumbled over
a stone, is cursing the devil that had placed it there. “Fie, brother”,
says this wordly wise, this all sufficient Jurgen, “have not the devils
enough to bear as it is?” (1) This attracts the attention of an earth
spirit, one Koshchei, “who made things as they are”.

For that reason this spirit, Koshchei, has his limitations. To him love
is impossible--not carnal love, but the love of God, such love as never
enters into Hell (257); such love as Jurgen’s grandmother, instructed
by the priest, has for God (299, 302). Also to this earth spirit,
Koshchei, is pride impossible (303). Of heavenly love the earth spirit
cannot conceive, because he “made things as they are, and day and night
he contemplates things as they are”. “How then”, says God Himself, “can
Koshchei love anything?” (303). Pride, as the philosophical Satan tells
Jurgen, is impossible to whoever it was that made things as they are,
because he has to look at them, having nothing else to look at, so how
can he be proud? (257). Almost, having in mind a certain treatise, _De
Civitate Dei_, we can imagine St. Augustine speaking. The things of this
world, the things as they are, are not to be loved, and he who made
them, assuredly not the real God, finds love foreign to his breast.

Anyhow, this Koshchei, “monstrously pleased” with Jurgen’s defense of
the devils against the Cistercian monk, puts himself in Jurgen’s way.
Appearing to the hero in the shape of a small black gentleman, the
earth spirit promises Jurgen a reward (10-11).

What that reward is to be soon develops. Arriving home, Jurgen finds
his wife has vanished. She has gone to a cave, of evil magic, across
Amneran Heath. On Walpurgis night, that night renowned in the calendar
of demonology, Jurgen follows her there; but first, at her bidding he
must remove from his neck a cross which had hung there, the gift of his
dead mother (13).

Then comes a medley of classic, of Russian, and of Norse mythology.
Jurgen finds in the cave a centaur, who gives him a Nessus-shirt
(16)--“an old poet, loaned at once a young man’s body and the Centaur’s
shirt” (131)--the young man’s body which Faust desired, but the
Nessus-shirt which even Hercules could not wear for long. Jurgen is now
off for his tour of the infinite.

And yet it is not the real Jurgen who makes this voyage. The real
Jurgen, where is he? There are, in fact, many Jurgens. One of these
is a little boy in Heaven. “That boy”, says God, “is here with me as
you yourself have seen. And today there is nothing remaining of him
anywhere in the man that is Jurgen” (297). Another Jurgen is “a young
man barely come of age” (23) who had loved the young girl Dorothy,
and who sees the Jurgen of today only “as one might see the face of
a dead man drowned in muddy water” (31). Then there is the Jurgen of
today, the Jurgen who “retains his shop and a fair line of business”,
the Jurgen whose _confiteor_ is that Koshchei, the earth spirit “who
made things as they are”, has dealt with him very justly. “And probably
his methods are everything they should be; certainly I cannot go so far
as to say that they are wrong; but still, at the same time--” (368).
And, separate from all these Jurgens, the little boy who loved God,
the youth who cherished the normal things of youth, and the Jurgen of
middle age who worships things as they are, is yet another Jurgen--the
Faust-Jurgen, who, by favor of the powers of darkness, goes careering
on his voyage of the world of fancy, the world of vision, the world of
regrets, the world of disillusion.

The sequence of his adventures may easily be traced.

In the first episode Jurgen visits a garden between dawn and sunrise.
It is a garden where “each man that has ever lived has sojourned for a
little while, with no company save his illusions” (20). And the spirit
of it all is shown forth in the people whom he first encounters. For
they are a small boy and a girl who forever walk in the glaze of a
mustard jar (19),--forever, that is, like the youth and the maid on the
Grecian urn which drew the immortal gaze of Keats. The glance sweeps
forward soon, however, and hence presently in this garden of memory
Jurgen meets the girl Dorothy, meets her and talks with her (24-33).
When she had gone all was gone and so, when the sun rose, it was simply
“another workday” (34). The Philistine spirit blew upon the garden, it
was to be remodelled and all the gold was to be rubbed away (36-7).

Then follows a visit to a character of many names, but always the same.
Jurgen calls her Sereda, after the manner of Russian mythology, but
she corresponds with the Roman Cybele, the Goddess of Earth (210, 316)
and in the Norse she is called Æsred (176-7). Goddess of Earth, she
takes the color out of all things. The Fates spin the glowing threads
and weave them into curious patterns; but when she is done with them
there is no more color, beauty or strangeness apparent “than in so many
dishrags” (40), for she bleaches where others have colored. Naturally
enough she refers Jurgen back to Koshchei, the spirit who made things
as they are. Once more, through his intervention, Jurgen meets Dorothy.
For in his attempt to answer life’s riddle, he must perforce return
to the girl whom he had loved while young. If but they two could be
together again in youth, would not the failures of his life, the
disappointments of the middle years, be but as things that never had
happened? (See 55.)

While the glamour still holds its spell, to Jurgen this is the young
Dorothy, the girl who has not yet married; and so, on the moonlit ramp
of her father’s castle they talk of many things as young lovers would.
To them soon comes the girl’s future husband, but to Jurgen the magic
makes it the appearance simply of a rival suitor; and, the magic having
not yet exhausted its force, the conventional will have it that, in
the words of the old stage directions, “they fight, and the rival is
slain”. Then the conqueror turns to the lady, but dawn is coming and
the magic is spent. Jurgen finds that this is not the Dorothy whom he
had seen in the garden between dawn and sunrise (47-60). She is now
repulsive, and he repels her. It is meet and right, therefore, that the
next place to which Jurgen comes is a cave where are the bodies of many
whom he had formerly known (60-65).

Winding his way through this cave he comes to Guenevere. She is held
by the power of a giant; and from that giant does Jurgen rescue her
(66-78).

Guenevere, of course, is the lady, charming but of errant fancy, to
whom the chronicles Morte d’Arthur and Mabinogion were devoted, and
of whose vagaries speak Tennyson’s “Idyls of the King.” At this time
her marriage to Arthur has been arranged, and Lancelot is coming as
his master’s envoy to arrange the details of the wedding. In the end
Lancelot captures the heart of Guenevere (147) but, meanwhile her
inclinations have their way with Jurgen. For Jurgen abides with her
father in the latter’s city of Cameliard, which, of course, is but
another name for Camelot (78-146). It is, to use the words of our time,
a house party; and, like many house parties, it brings forth various
events. To the guest Jurgen it befalls to do things ancient and modern,
to rescue a princess from a giant, after the fashion of Sir Thomas
Malory (82-3), to converse with ghosts in a haunted bed room (145-9)
and to carry on with the fickle Guenevere, whose outstanding trait is
“her innocence, combined with a certain moral obtuseness” (108). Her
worldlywise father learns of the affair, talks it over with Jurgen,
and reminds him of the duty apparent in the circumstances, that,
if necessary, Jurgen should lie like a gentleman (93). The matter,
however, comes to nothing, for the time of Guenevere’s marriage to
Arthur is at hand. So she and Jurgen part, she with her mind already
full of Lancelot (147) and Jurgen being taken with the charms of a
new person of the play, of whom presently. In short, Jurgen leaves
Guenevere where Tennyson takes her up, the stage being thus cleared for
the drama of Lancelot.

Jurgen leaves Cameliard with one who is called Anaitis (147). But even
as Guenevere typifies innocence combined with obtuseness (108) Anaitis
is the personification of a capital sin. Like the earth goddess Sereda,
known also to men as Cybele and Æsred (of whom _supra_) this Anaitis
bears different names in different places. But always she is the same.
In the Arthurian legend she is the Lady of the Lake (109), in classic
lands she was Venus, on Eastern soil she was Ashtoreth. She serves
the moon (150), she is the sun’s daughter (173); and in all lands
from Paphos to Babylon do men rear temples in her honor (341-3). But
the breath of evil nevertheless goes forth from her; and in her train
follows Alecto, whose quality is retribution (178).

With this Venus, this Anaitis in her land of Cocaigne, Jurgen lives for
a time. But he is not the only guest of whom legend bears record, not
the only visitor of whom contemporary literature and art have spoken.
Mr. Cabell, however, preserving that balance of humor which always
in this book is kept level, has given this situation a new color.
Tannhäuser is tempted to return to the Venusberg; Jurgen leaves Anaitis
with never a glance behind.

But while he stays there, things of black magic happen. Nor is that
strange. Anyone familiar with the legend embodied in “Tannhäuser” might
expect to find that all things abhorred by Christians are practiced in
the land of Venus, the Cocaigne of Anaitis.

And so we are able truly to understand the episode, occurring while
Jurgen abides in this country of Cocaigne, to which so much attention
has been directed by Mr. Sumner (chap. 22, pp. 151-158). This Moon
Goddess (159) “who ruled not merely in Cocaigne but furtively swayed
the tides of life everywhere the Moon keeps any power over tides”
(159) had but one mission, “to divert and to turn aside and deflect”
(159). Goethe puts into the mouth of Mephistopheles the tremendous
words, “I am the spirit that always denies”. The episode in the present
book simply shows forth the action of the spirit that denies, for to
deflect is to deny. What occurs in the passage to which Mr. Sumner
objects is nothing but a repetition of the mediæval practice of the
Black Mass, the Devil’s Mass. It is certainly not against the dictates
of literature to publish what the author conceives as a detail of the
mysterious Black Mass; for if so then the novel, “Black Diamonds”,
by the famous Hungarian novelist of a generation ago, Maurice Jokai,
would never have been allowed in translation. And that the ceremony in
question was a Black Mass is clear after we read, not merely the words
describing the ceremony itself, but the references to it that follow.

In the inner sanctuary we find a toad nailed to a cross (157). The
incident occurred “on the eve of the Nativity of St. John the Baptist”
(159), in other words Midsummer Night’s Eve, at which time, according
to mediæval tradition, the powers of darkness are allowed abroad.[6]
Let us remember that in the country of Venus “the Church is not
Christian”, and the law is “do that which seems good to you” (161). The
very goddess herself was “created by perversity, and everyone knows
that it is the part of piety to worship one’s creator in fashions
acceptable to that creator” (165). That goddess, whose mission it was
to divert, to deny, naturally enjoyed “the ceremony of God-baiting” as
Jurgen calls it (157). Tannhäuser abode in the Venusberg, and nobody
has dreamed of forbidding Wagner’s opera based on that. Jurgen lived
in precisely the same place, but simply described with more cynicism.
Really, we have nothing but “Tannhäuser” as it would have been written
by Heine, if he had happened to take up the German legend in the spirit
of his own cynical wit. Wagner took it seriously, and Mr. Cabell does
not take it seriously; that is all the difference.

It will probably be advisable at this point to explain the details of
the lance and the veil as used in this Devil’s Mass. The explanation,
fortunately, can be shortly put. The lance was a real lance, which
the hooded man handed to Jurgen (153). The veil was also real. It
hung before the _adytum_ (Gr. = inner part of a temple) and inside
this adytum, beyond the veil, was the cross with a toad nailed upon
it (157). The tip of the lance was red (154) and with it the veil
was pierced that concealed the cross, but upon the cross hung the
disgusting figure of a toad. The whole thing was, as Jurgen called it
on the spot, a piece of “God-baiting”, a mockery, after the manner of
the mediæval necromancers, of the mystery of the Passion of the Cross,
of the lance that pierced a sacred Side, of the veil of the Temple that
broke with a certain event which changed all the tides of history.

Taking it by itself this incident is not obscene or lewd; for mockery
of sacred belief does not, as matter of law, fall into that class. An
attack on religious belief cannot be indictable as an obscenity under
Section 1141 of the Penal Code; if prosecuted, it must be indicted as
a libel (_People_ v. _Eastman_, 188 N. Y. 478). _But we will not allow
the defendants, nor Mr. Cabell, the author, to remain for a moment
solely under that protection. This book puts forth the attack upon
the Christian belief, not to support the attack, but to deride the
attack itself._ It is a matter of common observation that _infidelity
itself partakes of a religious fervor, and it is of that fervor that
Jurgen makes fun_. “Well, well!” says Jurgen, “but you are a little old
fashioned, with all these equivocal mummeries” (157). Being “skeptical”
(165) he denies that “death is going to end all for him” (171). And so
Cocaigne “does not satisfy him” (172), he expresses his discontent at
length (163-170) until Anaitis, in wrath, calls him “irreverent” (167),
and that leads to their parting.

Surely that is a moral ending! Jurgen leaves Anaitis, his heart and
mind not going along with the beliefs and practices of a goddess who
enjoys every “far-fetched frolic of heathenry”, and who goes forth into
the world to tempt people like St. Simeon Stylites and the hermits of
the Thebaid (176). If it is unlawful to say that in print, then we
must suppress Flaubert’s “Temptation of St. Anthony”, and we should
certainly never permit “Tannhäuser” or “Thais” to be sung at the
Metropolitan.

Then what survives all of this? What indeed but the words of one of the
goddess’ friends, the Master Philologist, who says: “The Jewish mob
spoke louder than He Whom they crucified. But the Word endures” (182).
Jurgen, in short, tires of this place, a place where “it appears that
their notion of felicity is to dwell eternally in a glorified brothel”
(187).

He is now looking for Helen of Troy. Of course it is not criminal to
think about her, since otherwise the second part of Faust should not be
allowed in print, nor should Tennyson’s “Dream of Fair Women”. So it
is lawful for Jurgen to look for her, and he does look. But on his way
comes another episode.

In the domain of Leuke (192) he meets a hamadryad named Chloris. Leuke
is the land of conventionality where nobody ever does anything except
what he has been accustomed to do, and would never dream of doing a
thing which nobody ever heard of doing (203-204). Consequently the
wisest person among them is the god Silenus, the god of drunkenness,
and he is always drunk in order to escape the conventional (208-9).
That of course is not right, but the indictment is not drawn under the
Volstead Law. Jurgen stops among these people and marries a little
hamadryad, who is all that a wife should be (215) and who puts up a
lunch for him when he goes for a walk (215). So conventional is Leuke,
be it noted, that even a stroll is out of keeping. In this country of
conventionality the people have never taken a holiday, nobody ever
having heard of such a thing (206). It is the Utopia of the Podsnaps of
Dickens’ time, of the Rotarians of our own. But his life in this happy
place, where nothing out of the ordinary ought in nature’s course to
happen, does not last long. War is threatened by the Philistines.

Be it observed, from what has already been said, that the Philistines
and the people of Leuke were made by the same creator, the power that
made things as they are, and consequently it does not much matter who
will win, because all it will amount to is that “dullness will conquer
dullness” (209). Yet in the matter of dullness the balance is with the
Philistines. Fire is their means of sacrifice, not because of the
glow, but because it ends in ashes, and the gray of ashes is their
favorite color (230). They are Realists (231) and they believe that
there is no art except it “teach something” (241). Their high priests
claim to have read every book ever written, and denounce those who
doubt the assertion (244). Knowing everything, believing in nothing
that is not practical, they have a summary way of dealing with those
who presume to disagree. All such recalcitrants are sent to Hell,
“relegated to Limbo” (242).

Against the people of Leuke, the ordinary conventionalists, came
these Philistines, the militant Realists. Naturally the Philistines
conquered, and the people of Leuke were condemned to death. Jurgen’s
wife, the little hamadryad whose life was bound up with that of her
tutelary tree (215) perished with its felling. The Philistine Queen
took a fancy to Jurgen, but he, “coming of morbid ancestry” (247)
declined to abide in Philistia; and so they sent him to the limbo which
they call Hell (250).

A better fate befalls the allied city of Pseudopolis. There live those
of the Grecian spirit, of that spirit of Hellenism which, according to
Matthew Arnold, wars always with the genius of Philistia. There abides
Helen of Troy. Her Jurgen sees (224-9) the occasion being much the same
as that which is pictured in Keats’ “St. Agnes Eve”. These people the
Philistines could not slay, for “when the Philistines shouted in their
triumph, Achilles and all they who served him rose from the ground like
gleaming clouds and passed above the heads of the Philistines, deriding
them” (231). But Jurgen and the people of ordinary conventionality
perished, and thus our next view of Jurgen finds him in Hell.

The Hell to which he has gone is the Hell of his forefathers, being
in truth but a monument to their egotism. They built it “out of the
pride which led them to believe that what they did was of sufficient
importance to merit punishment” (253). There Jurgen sees his father
standing calmly in the midst of an especially tall flame, and very
well satisfied with it, because of his confidence that he is important
enough to deserve a special place in Hell. Therefore he is angry when
the attendant devil does not sufficiently tend his furnace (254, 260-7).

It is not obscene, at least at common law, to speak lightly of Hell.
If it were otherwise a great many books would be condemned. Every
lawyer knows what was said about Lord Hatherley, when he, sitting in
the Privy Council, held that the calvinistic idea of Hell was not
part of the religion of the Church of England. It was said that Lord
Hatherley had dismissed Hell with costs and had deprived thousands of
their hope of everlasting damnation. Nor is it obscene to represent
that there are people whose sense of personal importance rules even
in death, people who think that their sins are greater than the sins
of anybody else, not because of their quality as sins but because of
the persons who commit them. And, pausing yet further at this point,
let us suggest that if it is lewd to make fun of Philistia, then all of
Matthew Arnold’s books should be burned by the hangman; and certainly
Whistler’s book, “The Gentle Art of Making Enemies”, should never have
been allowed in public print. Indeed it was Arnold, the father-in-law
of a late most respectable member of this Bar, who invented the term
Philistines as used in the present connection. Mr. Cabell has simply
put in another form the protest that can be made against this point of
view. At least it is open to protest.

Of course, we may not be able to agree with all of Mr. Cabell’s
classifications as to what pertains to Philistia. Many of us are
citizens of that country without knowing it. But it is not obscene or
lewd for some one else to call us Philistines because of the views
we may happen to hold dear. Legally we cannot object; practically we
conserve our energies by not doing so. Like the famous Bishop Bonner of
Queen Mary’s time, we may do well to laugh at the caricatures which the
heretics make of us.

With this in mind we might get enjoyment out of Jurgen’s observations
as to the real issue between Heaven and Hell. The war between them
is not as Milton saw it. Rather, the war is between autocracy and
democracy; and Hell is fighting to make the universe safe for democracy
(287). Everybody knew how Satan came to be the chief magistrate of
Hell, he was elected to that office, and he has continued in office
so long simply because elections are inadvisable in war time (278-9).
And while Hell used vigorous methods against dissenters, that was only
because of necessary war time legislation (278-9). But Heaven was
indisputably an autocracy, because nobody knew how God derived his
power. He had been there through the ages, and He proposed to have no
successor (286). Such, then, was the issue. Of its outcome, the shrewd
Jurgen was inclined to favor Heaven, because of its superior military
efficiency (287). And so, although Jurgen’s friends in Hell try to
dissuade him (288), although he has married in Hell a vampire who is
quite conventional, and life there is conventional also--“Hurry”,
says his wife, “for we are spending the evening with the Asmodeuses”
(277)--Jurgen leaves Hell and visits Heaven.

At that moment the mood of the author changes. Jurgen ascends to Heaven
leaving irreverence behind, and the pictures now uncovered are of
different tone and motive. The first person whom he sees is a little
boy who was once Jurgen himself. When Jurgen meets God he says, “Once
very long ago I had faith in you”; to which the reply is, “No, for
that boy is here with me as you yourself have seen, and today there
is nothing remaining of him anywhere in the man that is Jurgen”
(297).[7] Heaven contains children, mothers and grandmothers. Logic
cannot lead one to it, because logic does not exist there. Therefore,
children, mothers and grandmothers can ascend to Heaven where people
like Jurgen cannot. Taking Heaven as an illusion, Jurgen finds none of
his own illusions there, and hence he must “return to such illusions
as are congenial, for one must believe in something” (306). And yet he
has stood motionless for thirty-seven days in that place, “forgetful
of everything save that the God of his grandmother was love” (306-7).
Nobody else, he is told, has willingly turned away so soon, and it is
supposed that this is due to some evil wrought in the Nessus shirt he
was wearing, the like of which was never seen in Heaven (307). And
finally this wayfarer, this man of modern philosophy, says that he
turned away from Heaven because he seeks for justice and he cannot find
it in the eyes of God, “but only love and such forgiveness as troubled
him” (307). To which archangels reply that because of that very fact he
should rejoice (307).

If that is obscene, then “The Little Flowers” of St. Francis D’Assisi
should at once be suppressed by Mr. Sumner. If it is lewd to teach that
none of us would go to Heaven if we had justice done us, Christianity
once more should betake itself to the catacombs.

We are let down from these heights by way of an interview between
Jurgen and St. Peter. The Saint has something to say about prohibition
(311-313) with which, theoretically speaking, many might disagree. But
as the defendants are not indicted under the prohibition laws, it is
needless to go into this discussion. The Saint also represents Heaven
as pacifistic (312-313); but Mr. Cabell wrote after the Armistice, and
pacifism is not, legally speaking, obscene or lewd, whatever else it
undoubtedly is.

The travels of Jurgen now draw near to their end, the rest of the book
simply rounding out the ideas suggested. Returning to earth, he meets
once more the earth goddess Sereda, and the pith of their talk is the
conclusion, not that “there is no meaning in anything”,--that, both
agree, nobody really could face,--but that the lower god, Koshchei,
who made things as they are, “is in turn the butt of some larger jest,
* * * that all of us take part in a moving and a shifting and a reasoned
use of things * * * a using such as we do not comprehend and are not fit
to comprehend” (317). The quest of Jurgen ends, fitly enough, with a
return to this lower power (329), this power that made things as they
are, but is controlled, however rebellious, by a higher force beyond
him (333).

We then have a return, in pageant form, of the women with whom, in
this year of pilgrimage just ended (319), Jurgen has foregathered.
First there is Guenevere (335) who is now ready to be his wife, Arthur
being gone into Avalon and Lancelot being turned monk (335); Anaitis
follows (340), then Helen of Troy (345). But all of them he refuses.
“For I am transmuted by time’s handling. I have become the lackey of
prudence and half measures” (348). Then appears to him his wife (350)
who disposes of Koshchei “casually, for she believed him to be merely
Satan” (353). After ordering Jurgen to be sure to be home in time for
supper and to stop on the way to get a half pound of butter, she passes
out “neither as flame nor mist, but as the voice of judgment” (355).
Jurgen follows her (356), but on the way he sees Dorothy, Dorothy as
she is and not as she had lived in either memory or imagination (364).
He arrives home recollecting that he had forgotten to do the errand his
wife told him to perform, but reflecting that after all things were
just about as well with him as could be. He has his wife, he has his
business, and the god of things as they are has probably dealt with him
very justly. “And probably his methods are everything they should be;
certainly I cannot go so far as to say that they are wrong; but still
at the same time--Then Jurgen sighed and entered his snug home” (368).

Doubtless we have erred in many ways in our interpretation of the book
under attack: we are quite sure that we have not done it justice.
After all, it must speak for itself, for everyone has his own reading
of whatsoever comes to his notice. But of one thing we are sure, that
it fills the test of literature as distinct from pornography; that it
has a theme, sustains a thought, criticises life. _It attempts, among
other things, to show the futility of escaping from conventionality by
way of seeking sin, for sin itself has its conventions. It pictures sin
in this spirit, and in doing so it perforce speaks of sin._ But it must
be judged as a whole, not by a sentence here, or even by a page there
(_Halsey_ v. _N. Y. Society_, 234 N. Y. 1). And, as decided in the case
just cited, a publication can be lawful even if it should happen to
contain indecent passages.




6--The passages, to which reference has been made in the complaint
originally filed in Special Sessions, are not indecent.


We submit that, having in mind the context, there is nothing in
“Jurgen” which is indecent. A man studiously on the alert for the
indecent can put his finger on certain words in the book; but the
very meaning of these words is decent if we will but read them in the
connection to which they are meant to refer. And other things that
are said, so far from being indecent, are things lawfully to be said,
unless the body of our literature should perish from the earth.

All of this is illustrated by the bill of particulars which Mr.
Sumner, one of the prosecutors in this case, furnished when he filed
a complaint in the Special Sessions. Mr. Sumner there enumerates the
pages containing, as he thinks, lewd and obscene matter. We shall now
deal with the particulars thus furnished.

What is there to complain of on pages 59, 88, 99, 114, 134-5, 275?
Pages 88 and 99 require no discussion. On pages 134-5 Guenevere takes
leave of Jurgen, that is all. On page 59 occurs “temptress”, which is
not obscene. On page 114 the ghost of Smoit tells Jurgen that he is his
grandfather, instead of the putative ancestor whom Jurgen had always
accepted. But if this is lewd, then we must stop the sale of such books
as Thackeray’s “Henry Esmond”. On page 275 Jurgen stops his vampire
wife from sucking his blood through biting his chest. Burne-Jones’
painting “The Vampire”, is familiar,--even to those of us who never
frequent galleries at home or abroad,--through Kipling’s famous poem.

But as perhaps it is not suitable thus to summarize the particulars
which Mr. Sumner was at such pains to gather, we will take the other
pages which he mentions and deal with them _seriatim_.

Pages 57-8--Jurgen’s conversation with Dorothy in the garden. A kiss is
not indecent. Temptation came, but it was dispelled.

Page 61--Reference to “the bed” is made--But for whom? The bride. A
bridal bed is not obscene or lewd. _Vide_ wedding march in “Lohengrin”,
and the relative chapters in Scott’s “The Bride of Lammermuir”.

Page 63--“Had wondered if he were really the first man for whom she had
put a deceit upon her husband”, etc. If this is obscene, then nearly
all current fiction is, to say nothing of the classics, ancient or
modern.

Page 64--Jurgen counts up his conquests. But so did Don Juan. “The end
of all is death”--but so said Villon--“_Ou sont les nieges d’antan?_”

Page 67--Speaks simply of a kiss. Whether long or short, a kiss is not
lewd.

Page 80--Jurgen is talking about Guenevere to her father--“I can get
justice done me anywhere, in all the bed chambers of the world.” If
this is lewd, then we should abolish Ophelia’s mad song in Hamlet.
Anyhow, Jurgen goes on to say (same page) “I only meant in a manner of
speaking, sir.”

Pages 84-6--Jurgen tells Yolande she must reward him by candle light,
etc. This contains no description of any offensive act. There is
nothing explicit.

Page 89--Guenevere’s father suspects that she was not entirely chaste
while in the giant’s cavern. Has literature, ancient or modern, never
previously exposed a father’s doubt of his daughter’s chastity? Did no
one ever study the Greek tragedies?

Page 90--The King wonders whether “a thing like this is happening” in
his city in many places, and Jurgen says that it probably is. Sinclair
Lewis has similar speculations in “Babbitt”. The references to a
“breakage” refer to infractions of moral law.

Page 92--The King says that, if Jurgen has had improper relations with
Guenevere, he should lie like a gentleman. Where is the obscenity? Has
not that phrase become time-worn, in literature and conversation, since
the late eighties?

Page 98--Jurgen looks forward “to more intimate converse” with the
lady. Entirely compatible with just what it says. The dreadful word
“liaison” also is used. But the late war has brought it into such
use--“liaison officer”; “liaison between the Y. M. C. A. and the
chaplains’ corps”, etc.--that the word now has _Anglice_ the extensive
meaning that the French always allowed it.

Pages 100, 102, 104-8--These deal with Jurgen’s affair with Guenevere.
If read as a whole, bearing in mind the outstanding point, that
Guenevere’s characteristic was “her innocence, combined with a certain
moral obtuseness” (108) there is nothing lewd or obscene in this any
more than in Hardy’s “Tess of the D’Urbervilles”. Reference may be made
to page 102, where Jurgen had his answer to the question, what sort of
service did women most cordially appreciate. He believed they did not
really desire to be served as (103) a symbol of Heaven’s perfection,
as (336) half goddess, half bric-a-brac. But this opinion was not
suitable for a mixed audience in Glathion, where people believed
otherwise (104-108). They are not said to have done anything but kiss
and talk. The reasons for their talking in privacy are logical. If any
improprieties took place the text nowhere alludes to them. Compare the
first part of Goethe’s “Faust,” Scott’s “The Heart of Midlothian,”
George Eliot’s “Adam Bede” and “Middlemarch,” or Stevenson’s “Weir of
Hermiston,” for precisely similar seductions.

Page 120--Jurgen gets into the bedroom of the Bishop. “His eminence was
not alone, but as both occupants of the _apartment_ were asleep, Jurgen
saw nothing unepiscopal”.--If we are to be literal, then let us observe
that this passage does not say (_a_) that the other was a female; (_b_)
that they were in bed together. Sterne’s “Sentimental Journey” has
passages much more explicit.

Page 144--Jurgen talks concerning Guenevere and Lancelot. Tennyson, in
verse, discoursed of the same thing.

Pages 161-8--Deal with Jurgen’s matrimonial quarrels with Anaitis,
who, for all she is a nature myth and believes in symbolism, is
quarrelsome. She does not like Jurgen to “talk so flippantly about her
religion” (165) and regrets his dislike of his “in-laws”, such as Apis,
the well-known Egyptian god, who “will go about in public wearing
a bull’s head”. What is lewd or obscene here? Surely not the terms
“sacti-sodhana” and “muntrus”. They may look obscene because they are
in an unfamiliar language, but in that language, Sanscrit, counsel are
informed, they refer to religious rites of the Brahmins, who are not
commonly rated as lewd.

Pages 170-1--Shows that nature myths last only as long as the
philologists let them, hence they are Epicureans. But Jurgen, being a
doubter, is not sure that death ends all. Is there anything Lewd or
obscene in this quaint turning of the tables on the materialists?

Pages 174-7--Continues the matrimonial life of Jurgen and Anaitis,
ending with the conviction, forced on him, that the ruling spirit
of this land of hers is nothing else but Cybele, the Roman goddess
of earth, or Æsred, or Sereda, as she is variously called. And so
he became convinced “that all such employment was a peculiarly
unimaginative pursuit of happiness” (177). Surely a good moral lesson,
if anything.

Page 186--Simply a symbolic way of telling us that “Time begets
nothing”. He sleeps in Atlantis, while Briareus watches. Life is a
ceaseless round, history is a ceaseless round, of old things. It is a
commonplace of Greek mythology that Chronos, [Time] was mutilated by
his son Zeus.

Pages 186, 321, 154--Carry reference to the fact that there are such
things as eunuchs. If it is wrong to refer to eunuchs, then most
literature, not only of the East, but referring to it, should be
expunged. St. Philip’s first convert was an eunuch (Acts VIII, 26-40).
In “Innocents Abroad” Mark Twain gives the story of the revenge which
Heloise’s uncle caused to be taken upon Abelard.

Page 211--Refers to the priests of Cybele. If they were eunuchs,
that would not be, as said above, an obscene fact. But they were not
eunuchs, as it happened. The priests of Cybele were madmen: that
is, they had been deprived of their wits, and had thus “parted with
possessions which Jurgen valued”. Above all things the practical-minded
Jurgen valued sanity. See Tooke’s “Pantheon,” p. 172: “The Priests of
Cybele were named Galli, from a river of Phrygia. Such was the nature
of the water of this river, that whoever drank of it immediately grew
mad. The Galli, as often as they sacrificed, furiously cut and slashed
their arms with knives; and thence all furious and mad people were
called Galantes.”

Pages 196-200, 203, 206-7, 124-8, 148-150--_References to objects_:--

(_a_) Jurgen’s staff (196-200, 203). The answer to this, like the
answer to the insinuations about the lance in chapter 22 (_vide supra_)
is that it was a staff, and nothing else (see p. 95).

(_b_) Harpocrates, “who held an astonishing object” (206-7). This is
attacked along with the reference to the People of the Fields, who
practise eudæmonism. Jurgen sees the People of the Fields, “who dwell
between the forest and the city of Pseudopolis” (204). These people
“did one and all what they had always done” (204) whereas, “whoever
heard of the People of the Wood doing anything useful?” So Jurgen,
after being informed that the People of the Field never take a holiday
(206) decides to see what the People of the Wood do about it (206).
He finds them practicing eudæmonism outdoors instead of indoors.
Eudæmonism: “The type of utilitarian ethical theory that makes the
pursuit, enjoyment and production of happiness the supreme end in moral
conduct.”--Funk & Wagnalls’ Dictionary. This was of course the creed of
Cocaigne--“Eat, drink, and be merry, for tomorrow we die.” The point
here is that satyrs do not go indoors, for the reason that for a satyr
to go indoors is unheard of. If it is indecent to mention a satyr,
then not only should Keats and Swinburne be destroyed, but Elizabeth
Barrett Browning should be reprimanded for writing that poem “A Musical
Instrument”, which is all about “The Great God Pan”, chief of Satyrs.
As to Harpocrates, we refer to Tooke’s “Pantheon of the Heathen
Gods”,--a most respectable authority. It is there said (p. 352): “The
Egyptians worshipped Harpocrates as the god of Silence * * * They
consecrated the tree persea to him; because the fruit was like a heart
* * * He was painted with a finger upon his lips, thereby commanding
silence.” It is, therefore, probably the persea fruit which Harpocrates
is carrying, and the astonishment of Jurgen at seeing the human heart
thus publicly displayed is equally nature and good allegory. The custom
that led to stiffness was of course Harpocrates’ custom of not speaking
to or answering the remarks of others.

(_c_) Jurgen’s sword (124-8, 148-150). Mention is made of Jurgen’s
sword. But, like the staff and the lance (_vide supra_) all that need
be said is that it really is a sword, Caliburn. The book tells just
where and how he got it (72, 76).

(_d_) The doorknocker on the entrance to Cocaigne (150). These were
simply the nude figures of Adam and Eve. Jurgen, being conventional,
and yet seeking sin, is embarrassed at the nude, and thinks it is
indecent; so he talks about it.

Pages 196-200, 203--Jurgen’s meeting, and marriage, with Chloris,
the Hamadryad. There is nothing in this does not bear comparison
with the “Endymion” of Keats, or the Chorus from Swinburne’s
“Atalanta in Calydon”. As to the marriage, see two books in common
publication:--Flaubert’s “Temptation of St. Anthony,” Modern Library,
p. 226: “These are the deities of marriage. They await the coming
of the bride. Domiduca should lead her in,--Virgo unfasten her
girdle,--Subigo place her in the bed,--and Praema open her arms, and
whisper sweet words into her ear.” Tooke’s “Pantheon of the Heathen
Gods, Adapted for the Use of Students of Every Age and of Either Sex,”
p. 281: “Jugatinus joined the man and the woman together in the yoke of
matrimony. Domiducus guided the bride into the bridegroom’s house * * *
Priapus, or Mutinus was also reckoned one of the nuptial gods, because
in his lap the bride was commanded to sit.”

Pages 271-2, 286--The marriage with the vampire goes no further than
passages in Sterne’s Sentimental Journey and the novels of Fielding.
The conversation of the vampire leaves things unsaid rather than said.
There is no reason for taking in a wrong sense the reference to the
sceptre.

Pages 236-9, 241-2. Jurgen’s conversation with the Queen of Philistia
is nothing but a take-off on the mediæval--occasionally modern--belief
in the magic of numbers. See Baring-Gould’s “Curious Myths of the
Middle Ages,” Appendix E, p. 651: “Pythagoras taught that each number
had its own peculiar character, virtue and properties. The unit, or
the monad, he says, is the principle and the end of all; it is this
sublime knot which binds together the chain of causes; it is the symbol
of identity, of existence, of conservation, and of general harmony * * *
The number +Two+, or the dyad, the origin of contrasts, is the symbol
of diversity, or inequality, of division, and of separation. +Two+ is
accordingly an evil principle, characterizing disorder and confusion
* * * +Three+, or the triad, is the number containing the most sublime
mysteries, for everything is composed of three substances * * * +Nine+,
or the ennead, being the multiple of +Three+, should be regarded as
sacred. Finally, +Ten+, or the decad, is the measure of all, since it
contains all the numeric relations and harmonies.” “Eight (p. 652) is
the number of the Beatitudes.”

Pages 340-3--contain nothing but a statement of the fact that Venus, as
a cult, has her followers and her temples,--nothing that poets of times
past have not told us again and again. The temples existed, and are
mentioned freely in all books of classical mythology.

We are almost at the end of Mr. Sumner’s particulars; but there are two
that deserve notice.

He finds obscenity on pages 228-9. There we find Jurgen standing at the
bed of the sleeping Helen, but leaving her untouched, because he wants
to retain his “unreasonable dreams”. If this is obscenity, then indeed
Keats wrote in lewdest mood the “Eve of St. Agnes”.

And Mr. Sumner finds obscenity on page 142. What do we find there? We
find Jurgen kneeling before a crucifix!

And there let us leave the case.


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




                           NEW YORK STATUTES

                  +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.




                          Transcriber’s Notes


  - Original italic text is pre- and postfixed with an underscore, "_".

  - Original text in small caps is pre- and postfixed with a plus, "+".

  - The prologue has numbered footnotes and the body text used footnotes
    marked with asterisks. Continued the numbered footnotes through the
    body text. Moved the footnotes to the end of the text.

  - Changed three instances of “mediaeval” to “mediæval” which was used
    in four other instances.

  - Changed three instances of "to-day" to "today", which was used more
    frequently in both plain and quoted texts.

  - The author uses "_St. Hubert’s Guild_ v. _Quinn_ (64 Misc. 336)"
    both with and without the possessive on "Hubert."  These
    inconsistencies left as in the original.

  - p. 43 Corrected "typefies" to "typifies".

  - p. 52 Removed duplicate “have” from “should never have have been
    allowed”.

  - p. 64 Added missing end quote after “city of Pseudopolis”.

  - p. 65 Section (d) in the original was originally labelled as
    section (e) and there was no section (d).

  - p. 78 In the New York state code, the paragraph starting with "3."
    ends with a comma. Corrected this to be consistent with other
    numbered paragraphs.

  - p. 78 Corrected "misdeameanor" to "misdemeanor".

  - All other uncommon or contemporary spellings and punctuation left
    as in the original.

  - The text under discussion is available from Project Gutenberg:
    Jurgen: A Comedy of Justice by James Branch Cabell.
    (https://www.gutenberg.org/ebooks/8771)




*** END OF THE PROJECT GUTENBERG EBOOK JURGEN AND THE LAW ***


    

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