Chapter 14

But does all this argue a total lack of justice in the American character, or even a lack of common decency? I doubt that it would be well to go so far in accusation. What it does argue is a tendency to put moral considerations above all other considerations, and to define morality in the narrow Puritan sense. The American, in other words, thinks that the sinner has no rights that any one is bound to respect, and he is prone to mistake an unsupported charge of sinning, provided it be made violently enough, for actual proof and confession. What is more, he takes an intense joy in the mere chase: he has the true Puritan taste for an _auto da fé_ in him. "I am ag'inst capital punishment," said Mr. Dooley, "but we won't get rid av it so long as the people enjie it so much." But though he is thus an eager spectator, and may even be lured into taking part in the pursuit, the average American is not disposed to initiate it, nor to pay for it. The larger Puritan enterprises of today are not popular in the sense of originating in the bleachers, but only in the sense of being applauded from the bleachers. The burdens of the fray, both of toil and of expense, are always upon a relatively small number of men. In a State rocked and racked by a war upon the saloon, it was recently shown, for example, that but five per cent. of the members of the Puritan denominations contributed to the war-chest. And yet the Anti-Saloon League of that State was so sure of support from below that it presumed to stand as the spokesman of the whole Christian community, and even ventured to launch excommunications upon contumacious Christians, both lay and clerical, who objected to its methods. Moreover, the great majority of the persons included in the contributing five per cent. gave no more than a few cents a year. The whole support of the League devolved upon a dozen men, all of them rich and all of them Puritans of purest ray serene. These men supported a costly organization for their private entertainment and stimulation. It was their means of recreation, their sporting club. They were willing to spend a lot of money to procure good sport for themselves--_i.e._, to procure the best crusading talent available--and they were so successful in that endeavour that they enchanted the populace too, and so shook the State.

Naturally enough, this organization of Puritanism upon a business and sporting basis has had a tendency to attract and create a type of "expert" crusader whose determination to give his employers a good show is uncontaminated by any consideration for the public welfare. The result has been a steady increase of scandals, a constant collapse of moral organizations, a frequent unveiling of whited sepulchres. Various observers have sought to direct the public attention to this significant corruption of the new Puritanism. The New York _Sun_, for example, in the course of a protest against the appointment of a vice commission for New York, has denounced the paid agents of private reform organizations as "notoriously corrupt, undependable and dishonest," and the Rev. Dr. W. S. Rainsford, supporting the charge, has borne testimony out of his own wide experience to their lawlessness, their absurd pretensions to special knowledge, their habit of manufacturing evidence, and their devious methods of shutting off criticism. But so far, at all events, no organized war upon them has been undertaken, and they seem to flourish more luxuriantly year after year. The individual whose common rights are invaded by such persons has little chance of getting justice, and less of getting redress. When he attempts to defend himself he finds that he is opposed, not only by a financial power that is ample for all purposes of the combat and that does not shrink at intimidating juries, prosecuting officers and judges, but also by a shrewdness which shapes the laws to its own uses, and takes full advantage of the miserable cowardice of legislatures. The moral gladiators, in brief, know the game. They come before a legislature with a bill ostensibly designed to cure some great and admitted evil, they procure its enactment by scarcely veiled insinuations that all who stand against it must be apologists for the evil itself, and then they proceed to extend its aims by bold inferences, and to dragoon the courts into ratifying those inferences, and to employ it as a means of persecution, terrorism and blackmail. The history of the Mann Act offers a shining example of this purpose. It was carried through Congress, over the veto of President Taft, who discerned its extravagance, on the plea that it was needed to put down the traffic in prostitutes; it is enforced today against men who are no more engaged in the traffic in prostitutes than you or I. Naturally enough, the effect of this extension of its purposes, against which its author has publicly protested, has been to make it a truly deadly weapon in the hands of professional Puritans and of denouncers of delinquency even less honest. "Blackmailers of both sexes have arisen," says Mr. Justice McKenna, "using the terrors of the construction now sanctioned by the [Supreme] Court as a help--indeed, the means--for their brigandage. The result is grave and should give us pause."[44]

But that is as far as objection has yet gone; the majority of the learned jurist's colleagues swallowed both the statute and its consequences.[45] There is, indeed, no sign as yet of any organized war upon the alliance between the blackmailing Puritan and the pseudo-Puritan blackmailer. It must wait until a sense of reason and justice shows itself in the American people, strong enough to overcome their prejudice in favour of the moralist on the one hand, and their delight in barbarous pursuits and punishments on the other. I see but faint promise of that change today.

§ 5

I have gone into the anatomy and physiology of militant Puritanism because, so far as I know, the inquiry has not been attempted before, and because a somewhat detailed acquaintance with the forces behind so grotesque a manifestation as comstockery, the particular business of the present essay, is necessary to an understanding of its workings, and of its prosperity, and of its influence upon the arts. Save one turn to England or to the British colonies, it is impossible to find a parallel for the astounding absolutism of Comstock and his imitators in any civilized country. No other nation has laws which oppress the arts so ignorantly and so abominably as ours do, nor has any other nation handed over the enforcement of the statutes which exist to agencies so openly pledged to reduce all aesthetic expression to the service of a stupid and unworkable scheme of rectitude. I have before me as I write a pamphlet in explanation of his aims and principles, prepared by Comstock himself and presented to me by his successor. Its very title is a sufficient statement of the Puritan position: "MORALS, Not Art or Literature."[46] The capitals are in the original. And within, as a sort of general text, the idea is amplified: "It is a question of peace, good order and morals, and not art, literature or science." Here we have a statement of principle that, at all events, is at least quite frank. There is not the slightest effort to beg the question; there is no hypocritical pretension to a desire to purify or safeguard the arts; they are dismissed at once as trivial and degrading. And jury after jury has acquiesced in this; it was old Anthony's boast, in his last days, that his percentage of convictions, in 40 years, had run to 98.5.[47]

Comstockery is thus grounded firmly upon that profound national suspicion of the arts, that truculent and almost unanimous Philistinism, which I have described. It would be absurd to dismiss it as an excrescence, and untypical of the American mind. But it is typical, too, in the manner in which it has gone beyond that mere partiality to the accumulation of a definite power, and made that power irresponsible and almost irresistible. It was Comstock himself, in fact, who invented the process whereby his followers in other fields of moral endeavour have forced laws into the statute books upon the pretence of putting down John Doe, an acknowledged malefactor, and then turned them savagely upon Richard Roe, a peaceable, well-meaning and hitherto law-abiding man. And it was Comstock who first capitalized moral endeavour like baseball or the soap business, and made himself the first of its kept professors, and erected about himself a rampart of legal and financial immunity which rid him of all fear of mistakes and their consequences, and so enabled him to pursue his jehad with all the advantages in his favour. He was, in brief, more than the greatest Puritan gladiator of his time; he was the Copernicus of a quite new art and science, and he devised a technique and handed down a professional ethic that no rival has been able to better.

The whole story is naïvely told in "Anthony Comstock, Fighter,"[48] a work which passed under the approving eye of the old war horse himself and is full of his characteristic pecksniffery.[49] His beginnings, it appears, were very modest. When he arrived in New York from the Connecticut hinterland, he was a penniless and uneducated clod-hopper, just out of the Union army, and his first job was that of a porter in a wholesale dry-goods house. But he had in him several qualities of the traditional Yankee which almost always insure success, and it was not long before he began to make his way. One of these qualities was a talent for bold and ingratiating address; another was a vast appetite for thrusting himself into affairs, a yearning to run things--what the Puritan calls public spirit. The two constituted his fortune. The second brought him into intimate relations with the newly-organized Young Men's Christian Association, and led him to the discovery of a form of moral endeavour that was at once novel and fascinating--the unearthing and denunciation of "immoral" literature. The first, once he had attracted attention thereby, got him the favourable notice, and finally the unlimited support, of the late Morris K. Jesup, one of the earliest and perhaps the greatest of the moral _entrepreneurs_ that I have described. Jesup was very rich, and very eager to bring the whole nation up to grace by _force majeure_. He was the banker of at least a dozen grandiose programs of purification in the seventies and eighties. In Comstock he found precisely the sort of field agent that he was looking for, and the two presently constituted the most formidable team of professional reformers that the country had ever seen.

The story of the passage of the Act of Congress of March 3, 1873,[50] under cover of which the Comstock Society still carries on its campaigns of snouting and suppression, is a classical tale of Puritan impudence and chicanery. Comstock, with Jesup and other rich men backing him financially and politically,[51] managed the business. First, a number of spectacular raids were made on the publishers of such pornographic books as "The Memoirs of Fanny Hill" and "Only a Boy." Then the newspapers were filled with inflammatory matter about the wide dispersal of such stuff, and its demoralizing effects upon the youth of the republic. Then a committee of self-advertising clergymen and "Christian millionaires" was organized to launch a definite "movement." And then a direct attack was made upon Congress, and, to the tune of fiery moral indignation, the bill prepared by Comstock himself was forced through both houses. All opposition, if only the opposition of inquiry, was overborne in the usual manner. That is to say, every Congressman who presumed to ask what it was all about, or to point out obvious defects in the bill, was disposed of by the insinuation, or even the direct charge, that he was a covert defender of obscene books, and, by inference, of the carnal recreations described in them. We have grown familiar of late with this process: it was displayed at full length in the passage of the Mann Act, and again when the Webb Act and the Prohibition Amendment were before Congress. In 1873 its effectiveness was helped out by its novelty, and so the Comstock bill was rushed through both houses in the closing days of a busy session, and President Grant accommodatingly signed it.

Once it was upon the books, Comstock made further use of the prevailing uproar to have himself appointed a special agent of the Postoffice Department to enforce it, and with characteristic cunning refused to take any salary. Had his job carried a salary, it would have excited the acquisitiveness of other virtuosi; as it was, he was secure. As for the necessary sinews of war, he knew well that he could get them from Jesup. Within a few weeks, indeed, the latter had perfected a special organization for the enforcement of the new statute, and it still flourishes as the New York Society for the Suppression of Vice; or, as it is better known, the Comstock Society. The new Federal Act, dealing only with the mails, left certain loopholes; they were plugged up by fastening drastic amendments upon the New York Code of Criminal Procedure--amendments forced through the legislature precisely as the Federal Act had been forced through Congress.[52] With these laws in his hands Comstock was ready for his career. It was his part of the arrangement to supply the thrills of the chase; it was Jesup's part to find the money. The partnership kept up until the death of Jesup, in 1908, and after that Comstock readily found new backers. Even his own death, in 1915, did not materially alter a scheme of things which offered such admirable opportunities for the exercise of the Puritan love of spectacular and relentless pursuit, the Puritan delusion of moral grandeur and infallibility, the Puritan will to power.

Ostensibly, as I have said, the new laws were designed to put down the 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.