The San Francisco call., 1909-05-11
DECAr1ERON' AN
INDECENT BOOK
Anthony Comstoek Writes on
Judge Shortall's Decision
Sentencing Book Seller
To $500 Fine
By ANTHONY COMST0CK
New York, May 5, 1s

copy of your paper of April 20, contain
ing an article on page 81 In reference
to the conviction by Police Judge
Shortall of Harry Marks, who was
fined $500 for selling an obscene book
called The Decameron."
On appeal 1t appears that the novel
point was raised that no testimony had
been introduced in the police court
regarding the contents of the book,
and the point was raised by Assistant
District Attorney Hanley that Judge
Cabaniss might take judicial notice or
the character of the book.
The question naturally arises, was
the book offered in evidence before
the magistrate in whose court the case
was tried? If it was, then there could
be no question that the case was prop
erly proved. as it is we'll settled
principle that the question of OBJ
scenity is a question of fact for the
jury, or, in the absence of the jury,
for the court having jurisdiction in
such cases.
In the great leading case of the
People VS.. Muller, tried in the state
of New York, the supreme court, upon
appeal of the defendant after convic-
tion, said:
And as the statute has given the general
definition Of the character of the acts con-
stituting the ofense, it must necessarily
design that the drawings, pictures, photo
graphs or writings should be exhibited to or
observed by the jury, for them to deter
mine as matter of fact. in the exercise of
their good sense and Judgment whether or
not they were obscene or indecent.
That was considered the proper course to
pursue in Regina VS.. Hscklin, Eng. L. R.
"a. B. 1se7-s), in which the Justices order
was affirmed upon such action
This same court further said, in
reference to a case in the United
States
1t was approved in the circuit court of
the United States in the case of the United
States VS.. D. M. Bennett, in an elaborate
opinion also, delivered by Mr.. Justice
Blackford and il seems to me the only mode
in which the charge made in the indictment
could be properly tried or the law itself
vindicated or carried into efeot.-People
VS. Muller, 80 HUM, PIP 21l and 2I2.
Says the court of appeals in a unani-
nous decision affirming the Judgment
of the lower courts in the same case
We find no error in the record.
The question whether a picture or writing
is obscene is one of the plainest that can be
presented to a jury.-People VS.. Muller, SO
N. Y, 40s.
a To
of Pennsylvania the higher court held
as follows:
The obscenity of book alleged to be- an
obscene libel does not depend upon its truth
or falsity. It is a question to be deter.
mined by the jury. The character
of the book was question purely for the
jury, in which they could not be aided BY
an expert.-Commonwealt VS.. Landis,
Philadelphia R., 45S.
There are numerous authorities that
sustain the foregoing, both in the state
and federal courts, as we'll as in the
common law courts of Great Britain.
1t is equally well settled that a
book need not be obscene throughout
If 1T comes within the purview of the
statute In any substantial portion it is
an obscene book and nonmailable and
falls equally within the state statutes
an obscene book.
The test of obscenity was laid down
by the English courts in the case, al
ready cited, of the queen against Heck
lin. That case was cited with approval
by the United States supreme court in
a recent case, in which case they ap-
proved of the test as follows:
Whether the tendency of the matter
which is charged as obscene is to deprave
and Oorr rIrrf nf 70
such influences into whose hands an evil of
this sort would come. Would it, says the
court. suggest lewd libidinous thoughts
in the minds of the young and inexpe-
renoedl
After citing the above from the
charge to the jury the supreme court
said:
This is as liberal test as this man had
any right to ask or expect
In reference to the question of the
book being retarded as a classic, that
question has been settled over and over
again, and in several cases in the
federal courts of Pennsylvania, New
Jersey and elsewhere the very book
upon which this man Marks was con-
victed has been adjudged obscene and
persons sentenced to the full extent
of the then existing laws. to wit. one
years Imprisonment and $500 fine.
No laws are more dangerous or offensive
to the public sense of justice than Judge
made penal laws. No principle Of construc-
ton in respect to penal laws is more thor
ough1y settled than that they are to be con-
strued by this very language, and the plain
intention with which that language is used.
For the courts to interpolate purpose Of
such use not expressed by law and not
necessarily implied from its tenor is for the
courts themselves to make penal laws not
enacted by the legislative power-U. .. vs.
Lankin. Is F. r., 463; Timmons VS.. U. s.,
s5 T. B., 2o4.
I respectfully present that no court
can pass upon a book unless 1t is put
in evidence; and when it is in evil
dence, 1t is the duty of the court to
pass upon the matter before it, and
not to discuss it from how it is re-
garded by outsiders.
Dean Millman, in his History of
Latin Christianity" declares Boccaccio
as the most immoral writer of all
ages" 1t Would be very difficult to
find any court or jury, who examined
the book in question, who would not
pronounce it, as it has already been
judiciaily determined, an obscene,
Iewd and indecent book. In its<origi-
nal tongue it was regarded as. text
book of the language in which it was
published, and as such it was preserved
by the literary world; but that does not
Justify the free translation into our
language and the indiscriminate dis
semination of this ancient nastiness.