COMMENT
ANOTHER little gust of fury has blown; another book has been allowed to experience the triumph of democratic principles, trial by jury. Our common law provides that the accused shall be tried by a jury of his peers, but M. Théophile Gautier is dead and Mademoiselle de Maupin was tried by a jury tout court. The Jurors slept while the golden-book of spirit and sense was read to them; and sleeping pronounced a verdict of not guilty. This connection of sleep with morality establishes a new precedent in law and solves many problems in literature. We have always felt sure that the soporific qualities of Mr. Christopher Morley's essays were not due to their excess of intelligence; we know now that it is only moral rectitude which puts men, American men, Jurors, to sleep. We understand why the charge of immorality has been brought from time immemorial against the few writers who managed to keep their readers lively and awake.
But, as the Lord Chancellor remarked, it has its inconvenient side. This prosecution is not the last, only the most recent of many, and the judgements handed down have seriously imperilled the freedom of art in America. It is now virtually impossible for a publisher to defend himself on any ground, once the morality of his book be called into question. Mr. H. L. Mencken has done no greater service to American letters, than in his exposition of the judicial decisions which have robbed American letters of their innocence. The presumption of innocence, indeed, has disappeared; it is no longer necessary for the prosecution to prove immoral intention; all that is necessary, it seems, is the testimony of the most prudish, of the most prejudiced, of the most vulgar-minded, and of the most ignorant.
The Comstockians have driven everything from Fanny Hill to Rabelais, from Petronius to Dreiser, from the book-shelves, and the prosecutions for new books are necessarily few. More grievous than their efforts by far is the supine attitude of those editors who have long ago ceased to run any risk in the publication of a free literature. A thousand fears and a thousand inhibitions have worked their will upon the editorial mind; and after an author has suffered
