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The Project Gutenberg eBook of Jurgen and the
law
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States and most other parts of the world at no cost and with
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Language: English
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
NEW YORK
ROBERT M. McBRIDE & COMPANY
1923
Copyright, 1922, by
Robert M. McBride & Co.
Printed in the
United States of America
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.
against