See, also, Corn Exchange Bank v. Peabody, 111 magazines, pamphlets and other printed matter, not App. Div. 553, 98 N. Y. Sup. 106.

portation in any other way cannot be forbidden by Congress." (Since then, and in spite of this dictum, Congress has attempted to forbid other means of transmission in addition to post office suppression.) "In excluding various articles from the mail, the object of Congress has not been to interfere with the freedom of the press, or with any other rights of the people, but to refuse its facilities for the distribution of matters deemed injurious to the public morals."

"All that Congress meant by that act was that the mail would not be used to transport such corrupting publications and articles, and that any one who attempted to use it for that purpose should be punished."

Ex parte Jackson, 96 U. S. 727 to 736.

Several propositions are made clear from the reading of this dictum. The first is, there are some limitations upon the congressional power to regulate the mails. Second, that the court was not called upon, nor attempted to enumerate all of those limitations. Third, that what was said about freedom of press and postal regulations excluding obscene literature was not at all necessary to a decision of the question before the court, nor was this dictum based upon any argument attempting to construe the meaning of "freedom of the press." Fourth, the court admitted that Congress could not make a regulation such as would abridge the freedom of the press, but the decision does not attempt to point out the kind of postal regulation which would constitute such an abridgment, nor the test by which such regulation may be judged an abridgment of the freedom of the press.

Applying the test on Cohens v. Virginia, 6 Wheat. 398, it follows that nothing in this case is conclusive upon any feature of the constitutionality of postal laws against "obscene" literature.

The next two cases in which this subject is mentioned are in Dupre, 143 U. S. 114 (A. D. 1892), and In re Rapier, 143 U. S. 110. These two cases were argued together and decided together, and in both the precise subject matter under discussion, as in the former case, was lotteries and the mail.

volve absence of right to exclude obscenity, because the latter was "undoubtedly" mala in se and the former only mala prohibita. Again the attorney says: "Our argument in no manner involves the consequence that existing legislation of Congress, excluding obscene books and pictures from the mails, is invalid, as abridging the freedom of speech."

Furthermore it was not claimed that the matter constituting the content of lottery advertisements and tickets, alone involved an exercise of the freedom of the free press, but only that they incidentally effected the press by denying publishers the revenue to be derived from advertising, etc.

The court in Dupre case (same opinion as Rapier case), after denying a distinction between mala in se and mala prohibita as urged, continues thus:

"Nor are we able to see that Congress can be held in an enactment to have abridged the freedom of the press. The circulation of newspapers is not prohibited, but the government declines itself to become an agent in the circulation of printed matter [to wit, lottery advertisements and tickets] which it regards as injurious to the people. The freedom of communication is not abridged within the intent and meaning of the constitutional provision, unless Congress is absolutely destitute of any discretion as to what shall or shall not be carried in the mails and compelled arbitrarily to assist in the dissemination of matters condemned by its judgment, through the governmental agencies which it controls." Then the court reaffirm the Jackson case.

I may admit the right of Congress to exclude dynamite from the mails, or any other actual instrument whose transmission is a material element in the commission of an actual crime, over which Congress has jurisdiction, but it does not yet follow that Congress has the power to exclude "incendiary" opinions from the mails, nor unpopular opinions about the ethics of lotteries or of sex.

So Congress, within its geographical jurisdiction, which includes, among other places, the post office buildings owned by the government, may make gambling a crime, and, as an incident to that power, Counsel for Dupre says: "We are not at this Congress may punish or prohibit the actual commismoment objecting to the statute as invalid because sion of gambling through the use of the postal sysaimed to accomplish an object beyond the power of tem. It does not follow that it can also punish the the Congress, or because forbidden by some express constructive crime of sending through the mail matprohibition of the Constitution," but because the ter which merely expresses or suggests the idea of means employed were not legitimate to the end of gambling, entirely separate from any particular maintaining the mail service. However, counsel for scheme for accomplishing gambling. There is all the the accused did not meet the real issue, which may difference in the world between punishing the use of be thus stated: Congress has power to prohibit gam- the mails for disseminating opinions advocating the bling on premises over which it has jurisdiction, as morality of gambling and punishing the use of mails in post offices owned by the government, and in the to accomplish the crime of gambling. To decide what Territories and District of Columbia, and, as an in- Congress has the power to do, the latter does not, cident to that power, might prohibit gambling in the remotest degree, imply that it has the power through the mails. It was argued that absence of to do the former. Admitting that Congress has right to exclude lottery advertisements did not in- power in some places to punish certain sexual mis

conduct, it does not follow that it may punish purely intellectual crimes predicated merely upon sex discussions through the mails. It follows that nothing which has been directly or necessarily decided in any of the lottery cases has any bearing whatever upon the present controversy, as set forth in the foregoing statement of contentions.

Admitting for the sake of the argument that courts have rightfully decided that Congress has the power to prohibit the use of the mails for the accomplishment of the actual crimes of fraud and gambling, it does not follow, and has not been decided, that Congress has also power to create such constructive crimes as penalizing the use of the mails for the circulation by mail of a truthful scientific book on the physiology, psychology or hygiene of sex, or of spreading through the mails legislatively unapproved ideas about sex-ethics. It may still be true, notwithstanding all that courts have thus far said, and even including the most rash dictum, that Congress has not the power, implied from its authority to establish post offices, of creating a constructive crime out of the dissemination of unpopular ideas, under the pretense of regulating the mails.

In School of Magnetic Healing v. McAnnulty, 187 U. S. 107, the court says this: Conceding, for the purpose of this case, that Congress has full and absolute jurisdiction over the mails, and that it may provide who may and who may not use the mails, and that its action is not subject to review by the courts, and also conceding the conclusive character of the determination of the Postmaster-General, etc." (p. 107). Then the court goes on to hold that even conceding all that, "for the purposes of this case,” the postmaster had transcended his power. Here again it is clear that nothing was either directly involved or decided which bears upon the extent or limitations of the implied power of Congress to regulate the mails, or the constitutional questions herein before suggested.

character calculated to debauch the public morality."

Public Clearing House v. Coyne, 194 U. S. 507. Again nothing was before the court which elicited argument or involved a decision upon the power of Congress to differentiate between mail matter according to its approval or disapproval of the opinion transmitted, or the psycho-sexual states of the postal patrons. The only direct bearing of this decision upon the question as to the extent of the implied power to regulate mails is that the judicial dictum suggests a limitation upon that power not heretofore suggested. It also leaves the whole matter of other limitations on the implication of absolute power over mails an open question.

No case directly involving the constitutionality of the postal law against obscene literature has ever gone to the Supreme Court for decision, nor does it appear from the reported cases in the lower courts that any serious contention has ever been there made against their constitutionality. The foregoing analysis already shows that in so far as the logic of the dictum in the Jackson case has been taken to mean that there were no limitations upon congressional control over the mails, that even the dictum has been clearly misconstrued, as is shown by the numerous judicial suggestions to the effect that there are some limitations.

We conclude, therefore, that every objection to be in the future urged against the constitutionality of these laws, as herein above suggested, is not only undecided, but free from the embarrassment of even an adverse dictum. If there is any doubt as to this conclusion it must be dissipated by the declaration of the Supreme Court itself, where it says: "The constitutionality of this law [against obscene litera

ture] we believe has never been attacked."

Public Clearing House v. Coyne, 194 U. S. 507. When we come to study the psychology of modesty we find new explanations for this very general acquiescence by the members of the bar and the laity.

The next case is Public Clearing House v. Coyne, It will, then, be found that the strong emotional ap

194 U. S. 507.

This was an application for an injunction against the postmaster of Chicago for relief against a fraud order. After restating and reaffirming, by way of dictum, the case of Ex parte Jackson, the court continues its dictum thus: "While it may be assumed for the purpose of this case that Congress would have no right to extend to one the benefits of its postal service and deny it to another person in the same class and standing in the same relation to the government, it does not follow that under its power to classify the recipients of such matter, and forbid the delivery of letters to such persons or corporations as in its judgments are making use of the mails for the purpose of fraud or deception or the dissemination among its citizens of information of a

proval of these laws by the general public, ignorant of all scientific knowledge of psychology, and especially of sexual psychology, has been due to the fundamental and all but universal error by which we objectize our emotional appraisment of moral values. Thus the mob thinks it knows because it

feels and is firmly convinced in proportion as it is strongly agitated.

The judgment of the righteousness of these laws thus founded upon an error of ignorance, and reinforced by emotions which often owe their intensity to diseased nerves, associated in the same person with the nasty-mindedness characteristic of prurient prudes, have by a process of suggestive contagion become obsessive, even with more intelligent and healthy-minded persons. This process is easily un

derstood by those who know the psychology of modesty. The emotional state at the bottom of modesty and shame arises simply from a fear-induced applications to ourselves, of judgments primarily passed upon others. Upon this practically all psychologists are agreed, and it is this emotional which, with the blurred vision coming from psycholic ignorance which By ROLAND B. MOLINEUX in "Charities and The has produced success from the vehemence of our moralists-from-diseased-nerves.

I grant that prevention is better than a cure. The ideal method would be to prevent crime and make the criminal impossible by doing away with poverty, drunkenness, and the thousand and one causes of crime. But when you have accomplished this, you will have created an earthly paradise. Perhaps such a day will come. But in the meantime, something practical should be attempted.

At present, the State punishes its criminals by death, fine or imprisonment. But does death restore the dead? Is the fine given to the one injured? Does imprisonment of the criminal compensate his victim? Have these, or any punishment, protected society either by reforming the criminal or by deterring others from crime? In other words, has not the State, so clear in defining the duties of the individual to itself failed in its duties to the individual? In all ages, punishment by the State has had but three motives-vengeance, example and protection. But for the State to wreck vengeance is both absurd and unjust; we abandoned that system long ago.

permanent good behavior. Were this theory correct, there would be no second offences, just as there would be no more first offenders if punishment were effective as an example. The truth is, that first offenses are increasing and that even the reformatories do not prevent a second. More than forty per cent. of the inmates of reformatories have served time in other institutions; twenty per cent. conduct themselves unsatisfactorily when released on parole, and nearly ten per cent. return to crime within a year after regaining freedom.

These conditions result from a definite, a pseudomathematical infliction of punishment, in which every crime is labeled and a price put upon it previous to We punish in supposed accordance its commission. with the gravity of the crime actually committed. The less the amount stolen, the fewer the years of commitment. The fact that the thief took all that he could find or all that he could carry; that petty larceny is not grand larceny merely because the opportunity did not present itself, or because the opportunity was not what had been expected; that every Is punishment, then, preventive of increased crime housebreaker is a potential assassin who has not in that the death or imprisonment of the criminal killed because the necessity did not arise these are acts as a deterrent to others? To stimulate ambition not permitted to enter into the question of punishor inculcate fear, effective example demands publicity. ment. The willingness or an unsuccessful attempt Rewards for bravery, the crowning of scholarship, are lightly dealt with. Yet, can we differentiate? the attainment of knighthood, these are matters of Is not the mental condition of all these criminals the public ceremony. Not in secluded spots were marsame? If one may be returned to society with safety tyrs burned and crucified. In public once the crimi- to the lives and property of his fellows, may not all? nal was executed and his drawn and quartered body In truth it is as impossible to punish "crime" as suspended by chains upon the gibbet. Stocks and to reward harmony. "Crime" is intangible, as is whipping posts, the lashing of heretics through the sunlight, or fragrance. We attempt to punish an abstreets, all these were public shows.

To-day we cannot claim example as our purpose, when the life of the murderer is taken in the pale light of dawn, in a little room, and in the presence only of a few scientists. Surely, it is not these that need the warning! If punishment is intended as an example, let us be consistent; let the executions take place in the public parks and let the State declare the occasions holidays for the school children.

Even ignoring the likelihood that the command, "Thou shalt not kill," applies equally to the State and to the individual, is the killing by the State an example fitted to deter the individual from a similar act? Is it, in fact, much less absurd than if the State were to commit theft in order to prove that it is wrong to steal? Moreover, punishment as example fails because every criminal, regardless of the fate of others, either hopes to escape detection, or, as in certain cases, he commits the crime in the heat of passion, when there is no thought or care of the consequence.

The protection of society by means of a definite term of imprisonment inflicted upon the criminal is but temporary. The theory must be, then, that imprisonment will cure by frightening the criminal into

stract quality, whereas only the individuality of the criminal should be considered. Admitting that we should punish him, to what extent should we do so? Absolute justice would reply: "To the extent of his responsibility for his act." The insane murderer is not executed, nor is the child imprisoned for arson. Self-defense annihilates guilt, as almost always does unbearable provocation. Here, irresponsibility tempers justice. This should be true of all punishment, yet the criminal law makes no provision for the study of the accused or convicted man's heredity, environment, susceptibility-a man often of such birth and training that he does not realize one whit more than the child or lunatic that he has done wrong.

Bad example, excitement, fear, egotism, oppor tunity, wealth and indolence, the special character and particular passions of individual races; imagination, arousing a mistaken but sincere effort to right some social or political wrong; the influence of depraved literature and sensational journalism, upon already distorted minds-these do not excuse a crime, but in any rational system they must be considered in the infliction of punishment. With hundreds of others, they are causes for which the condemned was not responsible, but for the effects of which he must