the title Realist. As Henry James said, the moment you insist that animalism must have its place in works of art, there almost always seems to be no place for anything else. If a novelist is to represent real life, he must make subordinate and incidental what in a novel like Bel-Ami dominates every page.

Archibald Marshall is a realist. He represents cultivated men and women as we saw them yesterday, as we shall see them tomorrow. He seldom disappoints us, for among all living novelists, while he is not the greatest, he is the most reliable. WILLIAM LYON PHELPS.

AUTHORSHIP AND LIBERTY

[The following extended extract from the oral argument of Joseph S. Auerbach before the Appellate Division of the Supreme Court (First Department), in the supression of The "Genius" by Theodore Dreiser, is printed in the REVIEW as a timely and forceful contribution to freedom of thought and expression.—THE EDITOR.]

May it please the Court:

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AT the instance of the Society for the Suppression of Vice, through threat of arrest of the publishers, The Genius," by Theodore Dreiser, has been suppressed as an obscene book; and you are asked in this agreed case to determine whether such unwarranted action shall be judicially upheld.

In the controversy are involved questions of more importance than are usually submitted to a court of justice. For if the circulation of a book of its achievement can be forbidden, this officious and grotesque Society will have been given a roving commission for further mischief, and freedom of thought and expression dealt a staggering blow from which it will not soon recover. If, on the other hand, your decision be as we think it should be, it will undo a great injustice not only to a distinguished author and to the community at large, but will be a kind of charter right for author and publisher and even the participant in public debate.

way

In order to accomplish this you need not be opposed to some agency for the suppression of vice manifesting itself by of lewdness in the printed word or picture, though in my opinion such duty should devolve upon the legally constituted public authorities charged with the prosecution of crimes. If we are to have another agency, surely there must be such a judicial determination as to its legitimate province, that it will not be invited to run amuck at reputations and property rights, and by threat of arrest do that which is equivalent to issuing execution in advance of judg

ment.

Let me say also that you are not called upon to endorse all the scenes or episodes of the book, standing alone or even in their context; for Mr. Dreiser is not asking of the Court commendation of his literary excellence, but a judgment restoring to him the property rights of which he has unjustly been deprived. On the contrary, it may well be that you will dissent from the propriety and necessity for some of them, and would not care to be sponsor for all the book contains on some pages by way of heightened color; you may have little or no liking for its principal character or for any of its characters, or admire its style or subject-matter, or be willing to subscribe to all of the author's philosophy of life. In more than one of these particulars I should be in accord with you. We may say the same of many books which have made literary epochs, and even of those which have had to do with the advancement of civilization in the world.

So long ago as the middle of the last century, when freedom of thought and expression was far from being what it is to-day, the Madame Bovary of Flaubert, a classic now, was not condemned nor its author or publisher punished, though the work was by no means in all respects approved by the French Court.

Yet the inquisitorial censor who by prying into The "Genius" can find the objectionable view as to morality and decency, must certainly have his sensibilities rudely shocked if he turn to some of the pages of Madame Bovary. The judges said this by way of conclusion:

But whereas the work of which Flaubert is the author is a work which appears to have been the result of long and serious labors from a literary point of view and from that of a study of characters; that the passages indicated by the order of reference, however reprehensible they may be, are few in number if they are compared with the whole extent of the work; that these passages, whether it be in the ideas which they expose, whether it be in the situations which they represent, all contribute to the unity of the characters which the author has wished to present, even in exaggerating them and in infusing into them a realism vulgar and often shocking:

Whereas, Gustave Flaubert protests his respect for good manners and for all that relates to religious morality; that it does not appear that his book has been, like certain other works, written with the sole aim of giving satisfaction to the sensual passions, to the spirit of license and of debauch, or of ridiculing those things which should be surrounded by the respect of all:

That he has committed the error only of losing sometimes sight of the rules which every writer who respects literature like art, in order

to accomplish the good which it is called upon to produce, should be not only chaste and pure in its form but in its expression:

Under these circumstances, as it is not sufficiently established that Pichat, Gustave Flaubert and Pillet have rendered themselves culpable of the offences which have been imputed to them;

The tribunal acquits them of the accusation brought against them and discharges them without costs.

Nor is it your function any more than it was that of the French judges to be critics of social offences not the subject of judicial review. As the Court in a case I shall refer to later has said: "It is no part of the duty of courts to exercise a censorship over literary productions."

Before giving a summary of The “ Genius,” let me ask you also to keep in mind what is so well stated in People v. Muller, 96 N. Y., particularly at page 411.

The test of an obscene book was stated in Regina v. Hicklin (L. R. 3 Q. B. 369) to be, whether the tendency of the matter charged as obscenity is to deprave or corrupt those whose minds are open to such immoral influences and who might come into contact with it. We think it would also be a proper test of obscenity in a painting or statue, whether the motive of the painting or statue, so to speak, as indicated by it, is pure or impure, whether it is naturally calculated to excite in a spectator impure imaginations, and whether the other incidents and qualities, however attractive, were merely accessory to this as the primary or main purposes of the representation.

Accepting this rule as correct, let us see how The "Genius" stands its test.

It is a book of nearly seven hundred and fifty closely printed pages. It is a study of men and things, intense, sombre and often gruesome-persisted in at times to the point of tediousness and neither the principal character, Witla, nor any of its characters attracts the reader. That anyone would turn to this book to gloat over its licentiousness is unthinkable, for it compels attention and interest by reason of its almost epic breadth of view as to some phases of life, to which we may not wisely shut our eyes.

Witla, the "Genius," is born in a town called Alexandria, in Illinois, somewhere toward the close of the last century, and reared in a home not so ordered as to give a right direction to the thoughts or aims of youth. The boy is weak and anæmic, and along with the artistic taste which he longs to develop, he has dreams of great fame. But at the outset we see in him the early manifestations of unbridled amorous

desires destined to drag him down as he seeks to rise; and one of the early episodes of the book is with a young girl, ending, however, only in a kind of cheap love-making.

Moody and odd, slothful in study, he is moved often by a conception of life which is crude, if not corrupting. He begins his career on the town newspaper and later starts for Chicago to try his fortunes there, with a few dollars in his pocket. This is as Chicago appears to him:

At page 36 we read:

The city of Chicago-who shall portray it! This vast ruck of life that had sprung suddenly into existence upon the dank marshes of a lake shore. Miles and miles of dreary little houses; miles and miles of wooden block-paved streets, with gas lamps placed and water mains laid, and empty wooden walks set for pedestrians; the beat of a hundred thousand hammers; the ring of a hundred thousand trowels. Long converging lines of telegraph poles; thousands upon thousands of sentinel cottages, factory plants, towering smoke stacks, and here and there a lone, shabby church steeple, sitting out pathetically upon vacant land. The raw prairie stretch was covered with yellow grass; the great broad highways of the tracks of railroads, ten, fifteen, twenty, thirty, laid side by side and strung with thousands upon thousands of shabby cars, like beads upon a string. Engines clanging, trains moving, people waiting at street crossings-pedestrians, wagon drivers, street car drivers, drays of beer, trucks of coal, brick, stone, sand—a spectacle of new, raw, necessary life!

Again at page 39 we read:

It was a city that put vitality into almost every wavering heart; it made the beginner dream dreams; the aged to feel that misfortune was never so grim that it might not change.

Underneath, of course, was struggle. Youth and hope and energy were setting a terrific pace. You had to work here, to move, to step lively. You had to have ideas. This city demanded of you your very best, or it would have little to do with you. Youth in its search for something and age-were quickly to feel this. It was no fool's paradise.

Such vivid description characterizes the author's art so that it may fairly be said to be the rule and not the exception.

He gets a job at storing stoves, but his pay is but a few dollars a week; and finally after having been brutally threatened by one of the workmen he leaves the place and secures a position with a real estate concern at eight dollars a week, only to be thrown out of employment when the enterprise fails. He buys a suit of clothes on the instalment