traffic in frankly pornographic books and pictures--a traffic which, of
course, found no defenders--but Comstock had so drawn them that their
actual sweep was vastly wider, and once he was firmly in the saddle his
enterprises scarcely knew limits. Having disposed of "The Confessions of
Maria Monk" and "Night Life in Paris," he turned to Rabelais and the
Decameron, and having driven these ancients under the book-counters, he
pounced upon Zola, Balzac and Daudet, and having disposed of these too,
he began a _pogrom_ which, in other hands, eventually brought down such
astounding victims as Thomas Hardy's "Jude the Obscure" and Harold
Frederic's "The Damnation of Theron Ware." All through the eighties and
nineties this ecstatic campaign continued, always increasing in violence
and effectiveness. Comstock became a national celebrity; his doings were
as copiously reported by the newspapers as those of P. T. Barnum or John
L. Sullivan. Imitators sprang up in all the larger cities: there was
hardly a public library in the land that did not begin feverishly
expurgating its shelves; the publication of fiction, and particularly of
foreign fiction, took on the character of an extra hazardous enterprise.
Not, of course, that the reign of terror was not challenged, and
Comstock himself denounced. So early as 1876 a national organization
demanding a reasonable amendment of the postal laws got on its legs; in
the late eighties "Citizen" George Francis Train defied the whirlwind by
printing the Old Testament as a serial; many indignant victims,
acquitted by some chance in the courts, brought suit against Comstock
for damages. Moreover, an occasional judge, standing out boldly against
the usual intimidation, denounced him from the bench; one of them, Judge
Jenkins, accused him specifically of "fraud and lying" and other
"dishonest practices."[53] But the spirit of American Puritanism was on
his side. His very extravagances at once stimulated and satisfied the
national yearning for a hot chase, a good show--and in the complaints of
his victims, that the art of letters was being degraded, that the
country was made ridiculous, the newspaper-reading populace could see no
more than an affectation. The reform organization of 1876 lasted but
five years; and then disbanded without having accomplished anything;
Train was put on trial for "debauching the young" with an "obscene"
serial;[54] juries refused to bring in punitive verdicts against the
master showman.
In carrying on this way of extermination upon all ideas that violated
their private notions of virtue and decorum, Comstock and his followers
were very greatly aided by the vagueness of the law. It prohibited the
use of the mails for transporting all matter of an "obscene, lewd,
lascivious ... or filthy" character, but conveniently failed to define
these adjectives. As a result, of course, it was possible to bring an
accusation against practically _any_ publication that aroused the
comstockian blood-lust, however innocently, and to subject the persons
responsible for it to costly, embarrassing and often dangerous
persecution. No man, said Dr. Johnson, would care to go on trial for his
life once a week, even if possessed of absolute proofs of his innocence.
By the same token, no man wants to be arraigned in a criminal court,
and displayed in the sensational newspapers, as a purveyor of indecency,
however strong his assurance of innocence. Comstock made use of this
fact in an adroit and characteristically unconscionable manner. He held
the menace of prosecution over all who presumed to dispute his tyranny,
and when he could not prevail by a mere threat, he did not hesitate to
begin proceedings, and to carry them forward with the aid of florid
proclamations to the newspapers and ill concealed intimidations of
judges and juries.
The last-named business succeeded as it always does in this country,
where the judiciary is quite as sensitive to the suspicion of sinfulness
as the legislative arm. A glance at the decisions handed down during the
forty years of Comstock's chief activity shows a truly amazing
willingness to accommodate him in his pious enterprises. On the one
hand, there was gradually built up a court-made definition of obscenity
which eventually embraced almost every conceivable violation of Puritan
prudery, and on the other hand the victim's means of defence were
steadily restricted and conditioned, until in the end he had scarcely
any at all. This is the state of the law today. It is held in the
leading cases that anything is obscene which may excite "impure
thoughts" in "the minds ... of persons that are susceptible to impure
thoughts,"[55] or which "tends to deprave the minds" of any who, because
they are "young and inexperienced," are "open to such
influences"[56]--in brief, that anything is obscene that is not fit to
be handed to a child just learning to read, or that may imaginably
stimulate the lubricity of the most foul-minded. It is held further that
words that are perfectly innocent in themselves--"words, abstractly
considered, [that] may be free from vulgarism"--may yet be assumed, by a
friendly jury, to be likely to "arouse a libidinous passion ... in the
mind of a modest woman." (I quote exactly! The court failed to define
"modest woman.")[57] Yet further, it is held that any book is obscene
"which is unbecoming, immodest...."[58] Obviously, this last decision
throws open the door to endless imbecilities, for its definition merely
begs the question, and so makes a reasonable solution ten times harder.
It is in such mazes that the Comstocks safely lurk. Almost any printed
allusion to sex may be argued against as unbecoming in a moral
republic, and once it is unbecoming it is also obscene.
In meeting such attacks the defendant must do his fighting without
weapons. He cannot allege in his defence that the offending work was put
forth for a legitimate, necessary and decent purpose;[59] he cannot
allege that a passage complained of is from a standard work, itself in
general circulation;[60] he cannot offer evidence that the person to
whom a book or picture was sold or exhibited was not actually depraved
by it, or likely to be depraved by it;[61] he cannot rest his defence on
its lack of such effect upon the jurymen themselves;[62] he cannot plead
that the alleged obscenity, in point of fact, is couched in decent and
unobjectionable language;[63] he cannot plead that the same or a similar
work has gone unchallenged elsewhere;[64] he cannot argue that the
circulation of works of the same class has set up a presumption of
toleration, and a tacit limitation of the definition of obscenity.[65]
The general character of a book is not a defence of a particular
passage, however unimportant; if there is the slightest descent to what
is "unbecoming," the whole may be ruthlessly condemned.[66] Nor is it an
admissible defence to argue that the book was not generally circulated,
and that the copy in evidence was obtained by an _agent provocateur_,
and by false representations.[67] Finally, all the decisions deny the
defendant the right to introduce any testimony, whether expert or
otherwise, that a book is of artistic value and not pornographic, and
that its effect upon normal persons is not pernicious. Upon this point
the jury is the sole judge, and it cannot be helped to its decision by
taking other opinions, or by hearing evidence as to what is the general
opinion.
Occasionally, as I have said, a judge has revolted against this
intolerable state of the court-and Comstock-made law, and directed a
jury to disregard these astounding decisions.[68] In a recent New York
case Judge Samuel Seabury actually ruled that "it is no part of the duty
of courts to exercise a censorship over literary productions."[69] But
in general the judiciary has been curiously complaisant, and more than
once a Puritan on the bench has delighted the Comstocks by prosecuting
their case for them.[70] With such decisions in their hands and such aid
from the other side of the bar, it is no wonder that they enter upon
their campaigns with impudence and assurance. All the odds are in their
favour from the start. They have statutes deliberately designed to make
the defence onerous; they are familiar by long experience with all the
tricks and surprises of the game; they are sheltered behind
organizations, incorporated without capital and liberally chartered by
trembling legislatures, which make reprisals impossible in case of
failure; above all, they have perfected the business of playing upon the
cowardice and vanity of judges and prosecuting officers. The newspapers,
with very few exceptions, give them ready aid. Theoretically, perhaps,
many newspaper editors are opposed to comstockery, and sometimes they
denounce it with great eloquence, but when a good show is offered they
are always in favour of the showman[71]--and the Comstocks are showmen
of undoubted skill. They know how to make a victim jump and writhe in
the ring; they have a talent for finding victims who are prominent
enough to arrest attention; they shrewdly capitalize the fact that the
pursuer appears more heroic than the prey, and the further fact that the
newspaper reader is impatient of artistic pretensions and glad to see an
artist made ridiculous. And behind them there is always the steady
pressure of Puritan prejudice--the Puritan feeling that "immorality" is
the blackest of crimes, and that its practitioner has no rights. It was
by making use of these elements that Comstock achieved his prodigies,
and it is by making use of them that his heirs and assigns keep up the
sport today. Their livelihood depends upon the money they can raise
among the righteous, and the amount they can raise depends upon the
quality of the entertainment they offer. Hence their adept search for
shining marks. Hence, for example, the spectacular raid upon the Art
Students' League, on August 2, 1906. Hence the artful turning to their
own use of the vogue of such sensational dramatists as Eugène Brieux and
George Bernard Shaw, and of such isolated plays as "Trilby" and "Sapho."
Hence the barring from the mails of the inflammatory report of the
Chicago Vice Commission--a strange, strange case of dog eating dog.
But here we have humour. There is, however, no humour in the case of a
serious author who sees his work damaged and perhaps ruined by a
malicious and unintelligent attack, and himself held up to public
obloquy as one with the vendors of pamphlets of flagellation and filthy
"marriage guides." He finds opposing him a flat denial of his decent
purpose as an artist, and a stupid and ill-natured logic that baffles
sober answer.[72] He finds on his side only the half-hearted support of
a publisher whose interest in a single book is limited to his profits
from it, and who desires above all things to evade a nuisance and an
expense. Not a few publishers, knowing the constant possibility of
sudden and arbitrary attack, insert a clause in their contracts whereby
an author must secure them against damage from any "immoral" matter in
his book. They read and approve the manuscript, they print the book and
sell it--but if it is unlucky enough to attract the comstockian
lightning, the author has the whole burden to bear,[73] and if they
seek safety and economy by yielding, as often happens, he must consent
to the mutilation or even the suppression of his work. The result is
that a writer in such a situation, is practically beaten before he can
offer a defence. The professional book-baiters have laws to their
liking, and courts pliant to their exactions; they fill the newspapers
with inflammatory charges before the accused gets his day in court; they
have the aid of prosecuting officers who fear the political damage of
their enmity, and of the enmity of their wealthy and influential
backers; above all, they have the command of far more money than any
author can hope to muster. Finally, they derive an advantage from two of
the most widespread of human weaknesses, the first being envy and the
second being fear. When an author is attacked, a good many of his rivals
see only a personal benefit in his difficulties, and not a menace to
the whole order, and a good many others are afraid to go to his aid
because of the danger of bringing down the moralists' rage upon
themselves. Both of these weaknesses revealed themselves very amusingly
in the Dreiser case, and I hope to detail their operations at some
length later on, when I describe that _cause célèbre_ in a separate
work.
Now add to the unfairness and malignancy of the attack its no less
disconcerting arbitrariness and fortuitousness, and the path of the
American author is seen to be strewn with formidable entanglements
indeed. With the law what it is, he is quite unable to decide _a priori_
what is permitted by the national delicacy and what is not, nor can he
get any light from the recorded campaigns of the moralists. They seem to
strike blindly, unintelligently, without any coherent theory or plan.
"Trilby" is assaulted by the united comstockery of a dozen cities, and
"The Yoke" somehow escapes. "Hagar Revelly" is made the subject of a
double prosecution in the State and Federal courts, and "Love's
Pilgrimage" and "One Man" go unmolested. The publisher of
Przybyszewski's "Homo Sapiens" is forced to withdraw it; the publisher
of Artzibashef's "Sanine" follows it with "The Breaking Point." The
serious work of a Forel is brought into court as pornography, and the
books of Havelock Ellis are barred from the mails; the innumerable
volumes on "sex hygiene" by tawdry clergymen and smutty old maids are
circulated by the million and without challenge. Frank Harris is
deprived of a publisher for his "Oscar Wilde: His Life and Confession"
by threats of immediate prosecution; the newspapers meanwhile dedicate
thousands of columns to the filthy amusements of Harry Thaw. George
Moore's "Memoirs of My Dead Life" are bowdlerized, James Lane Allen's "A
Summer in Arcady" is barred from libraries, and a book by D. H. Lawrence
is forbidden publication altogether; at the same time half a dozen cheap
magazines devoted to sensational sex stories attain to hundreds of
thousands of circulation. A serious book by David Graham Phillips,
published serially in a popular monthly, is raided the moment it appears
between covers; a trashy piece of nastiness by Elinor Glyn goes
unmolested. Worse, books are sold for months and even years without
protest, and then suddenly attacked; Dreiser's "The 'Genius,'"
Kreymborg's "Edna" and Forel's "The Sexual Question" are examples. Still
worse, what is held to be unobjectionable in one State is forbidden in
another as _contra bonos mores_.[74] Altogether, there is madness, and
no method in it. The livelihoods and good names of hard-striving and
decent men are at the mercy of the whims of a horde of fanatics and
mountebanks, and they have no way of securing themselves against attack,
and no redress for their loss when it comes.
§ 6
So beset, it is no wonder that the typical American maker of books
becomes a timorous and ineffective fellow, whose work tends inevitably
toward a feeble superficiality. Sucking in the Puritan spirit with the
very air he breathes, and perhaps burdened inwardly with an inheritance
of the actual Puritan stupidity, he is further kept upon the straight
path of chemical purity by the very real perils that I have just
rehearsed. The result is a literature full of the mawkishness that the
late Henry James so often roared against--a literature almost wholly
detached from life as men are living it in the world--in George Moore's
phrase, a literature still at nurse. It is on the side of sex that the
appointed virtuosi of virtue exercise their chief repressions, for it is
sex that especially fascinates the lubricious Puritan mind; but the
conventual reticence that thus becomes the enforced fashion in one field
extends itself to all others. Our fiction, in general, is marked by an
artificiality as marked as that of Eighteenth Century poetry or the
later Georgian drama. The romance in it runs to set forms and stale
situations; the revelation, by such a book as "The Titan," that there
may be a glamour as entrancing in the way of a conqueror of men as in
the way of a youth with a maid, remains isolated and exotic. We have no
first-rate political or religious novel; we have no first-rate war
story; despite all our national engrossment in commercial enterprise, we
have few second-rate tales of business. Romance, in American fiction,
still means only a somewhat childish amorousness and sentimentality--the
love affairs of Paul and Virginia, or the pale adulteries of their
elders. And on the side of realism there is an almost equal vacuity and
lack of veracity. The action of all the novels of the Howells school
goes on within four walls of painted canvas; they begin to shock once
they describe an attack of asthma or a steak burning below stairs; they
never penetrate beneath the flow of social concealments and urbanities
to the passions that actually move men and women to their acts, and the
great forces that circumscribe and condition personality. So obvious a
piece of reporting as Upton Sinclair's "The Jungle" or Robert Herrick's
"Together" makes a sensation; the appearance of a "Jennie Gerhardt" or a
"Hagar Revelly" brings forth a growl of astonishment and rage.
In all this dread of free inquiry, this childish skittishness in both
writers and public, this dearth of courage and even of curiosity, the
influence of comstockery is undoubtedly to be detected. It constitutes a
sinister and ever-present menace to all men of ideas; it affrights the
publisher and paralyzes the author; no one on the outside can imagine
its burden as a practical concern. I am, in moments borrowed from more
palatable business, the editor of an American magazine, and I thus know
at first hand what the burden is. That magazine is anything but a
popular one, in the current sense. It sells at a relatively high price;
it contains no pictures or other baits for the childish; it is frankly
addressed to a sophisticated minority. I may thus assume reasonably, I
believe, that its readers are not sex-curious and itching adolescents,
just as my colleague of the _Atlantic Monthly_ may assume reasonably
that his readers are not Italian immigrants. Nevertheless, as a
practical editor, I find that the Comstocks, near and far, are oftener
in my mind's eye than my actual patrons. The thing I always have to
decide about a manuscript offered for publication, before ever I give
any thought to its artistic merit and suitability, is the question
whether its publication will be permitted--not even whether it is
intrinsically good or evil, moral or immoral, but whether some roving
Methodist preacher, self-commissioned to keep watch on letters, will
read indecency into it. Not a week passes that I do not decline some
sound and honest piece of work for no other reason. I have a long list
of such things by American authors, well-devised, well-imagined,
well-executed, respectable as human documents and as works of art--but
never to be printed in mine or any other American magazine. It includes
four or five short stories of the very first rank, and the best one-act
play yet done, to my knowledge, by an American. All of these pieces
would go into type at once on the Continent; no sane man would think of
objecting to them; they are no more obscene, to a normal adult, than his
own bare legs. But they simply cannot be printed in the United States,
with the law what it is and the courts what they are.
I know many other editors. All of them are in the same boat. Some of
them try to get around the difficulty by pecksniffery more or less
open--for example, by fastening a moral purpose upon works of art, and
hawking them as uplifting.[75] Others, facing the intolerable fact,
yield to it with resignation. And if they didn't? Well, if one of them
didn't, any professional moralist could go before a police magistrate,
get a warrant upon a simple affidavit, raid the office of the offending
editor, seize all the magazines in sight, and keep them impounded until
after the disposition of the case. Editors cannot afford to take this
risk. Magazines are perishable goods. Even if, after a trial has been
had, they are returned, they are worthless save as waste paper. And what
may be done with copies found in the actual office of publication may be
done too with copies found on news-stands, and not only in one city, but
in two, six, a dozen, a hundred. All the costs and burdens of the
contest are on the defendant. Let him be acquitted with honour, and
invited to dinner by the judge, he has yet lost his property, and the
Comstock hiding behind the warrant cannot be made to pay. In this
concealment, indeed, lurk many sinister things--not forgetting personal
enmity and business rivalry. The actual complainant is seldom uncovered;
Comstockery, taking on a semi-judicial character, throws its chartered
immunity around the whole process. A hypothetical outrage? By no means.
It has been perpetrated, in one American city or another, upon fully
half of the magazines of general circulation published today. Its
possibility sticks in the consciousness of every editor and publisher
like a recurrent glycosuria.[76]
But though the effects of comstockery are thus abominably insane and
irritating, the fact is not to be forgotten that, after all, the thing
is no more than an effect itself. The fundamental causes of all the
grotesque (and often half-fabulous) phenomena flowing out of it are to
be sought in the habits of mind of the American people. They are, as I
have shown, besotted by moral concepts, a moral engrossment, a delusion
of moral infallibility. In their view of the arts they are still unable
to shake off the naïve suspicion of the Fathers.[77] A work of the
imagination can justify itself, in their sight, only if it show a moral
purpose, and that purpose must be obvious and unmistakable. Even in
their slow progress toward a revolt against the ancestral Philistinism,
they cling to this ethical bemusement: a new gallery of pictures is
welcomed as "improving," to hear Beethoven "makes one better." Any
questioning of the moral ideas that prevail--the principal business, it
must be plain, of the novelist, the serious dramatist, the professed
inquirer into human motives and acts--is received with the utmost
hostility. To attempt such an enterprise is to disturb the peace--and
the disturber of the peace, in the national view, quickly passes over
into the downright criminal.