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Ebook has 152 lines and 21359 words, and 4 pages

Editor: Guy Holt

Release date: August 24, 2023

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

Jurgen and the Law

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

NEW YORK ROBERT M. McBRIDE & COMPANY 1923

Printed in the United States of America

Published, January, 1923

JURGEN AND THE LAW A STATEMENT

A STATEMENT

Thereafter the record is uneventful. Mr. Sumner's complaint 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 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.

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

Court of General Sessions of the Peace

IN AND FOR THE COUNTY OF NEW YORK.

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 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.

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.

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.

"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."

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.

Nor is it necessary, in order to protect a book from indictment, that it teach a moral lesson.

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."

In short, this statute was not intended, as the Court of Appeals has said in one of the cases above cited, "to regulate manners".

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.

"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."

"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."

"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."

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.

"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."

"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."

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 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."

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.

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.

Jurgen's name is "derived from jargon, a confused chattering such as birds give forth at sunrise" . 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?" This attracts the attention of an earth spirit, one Koshchei, "who made things as they are".

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 .

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 .

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