118 N.Y.S. 582 | N.Y. App. Term. | 1909
This action is brought to recover $200, the amount alleged to be due under a written contract under which the plaintiff sold and delivered to the defendant forty-two volumes of the works of Voltaire. The defendant admits the making of the contract and the delivery of the books, but alleges that, at the time of the signing of the contract, it was agreed that the books were to be accepted only on approval of himself and family and that these books “ contain reading of a licentious, lascivious and lewd character and not fit to be used or read in the defendant’s family.” Ho evidence was offered to show that the contract was made on condition that the books should only be accepted by the defendant provided that they met with his approval. The evidence in reference to this alleged agreement does not go further than to show that the plaintiff’s agent in selling the books stated to the defendant that “ they were very fine reading matter, fit for everybody to read.” At best, this statement was mere matter of opinion and cannot be construed to be a representation of fact. The court below held that the contract was founded upon an illegal consideration in that the books referred to were immoral and rendered judgment for the defendant. Only two of the forty-two volumes sold were offered in evidence and these were “ The Philosophical Dictionary ” and “ The Maid of Orleans.” These two books were held to be of such a character as to condemn the whole set. From the two books offered in evidence, the 'court cannot draw any inference as to the other volumes which were sold.
The contention of the appellant that, because the contract for the sale of the books was in writing, oral evidence could not be offered to show that it was founded upon an illegal con
The judgment which the learned court below delivered is not the first judicial determination which has condemned “ The Philosophical Dictionary.” The last time it was judicially condemned, so far as I know, was in France in 1766, when, together with a youth who was suspected of an act of malicious mischief and in whose possession a copy of the book was found, it was publicly burned in the streets of Paris. The other work complained of, “ The Maid of Orleans,” had a history less tragic, although sufficiently exciting to have given even the careless Voltaire many moments of anxiety for his own safety on account of it.
The “ Philosophical Dictionary ” is a collection of articles dealing with romance, history, science and religion, many of which were originally contributed to the great Encyclopédie of which Diderot, D’Alembert and Voltaire were the inspiration. It is not only a reservoir of sarcasm and wit, but it has exerted a profound influence in favor of a humane and rational administration of the law. For the other work offered in evidence, “ The' Maid of Orleans,” so much cannot be said. Offensive as some of the verses of this book undoubtedly are to the taste of our day, yet I do not think we can declare a contract for its sale illegal on this account. Its vices are those of its age. Frederick the Great admired it and paid it the doubtful compliment of imitation, and Oondorcet regarded it only as an attack upon hypocrisy and superstition. Less prejudiced critics than these condemn it with severity, and even admirers of Voltaire regret that there are passages in it which have dimmed the fame of its author. Tn passing judgment upon it, perhaps it is not too much to ask that it should be considered in the spirit which the author of “ The Treatise On Tolerance ” did so much to make general.
The Penal Code of this State makes it a crime to sell or publish immoral or obscene literature (Penal Code, § 317), and contracts for the sale or publication of immoral literature have been held to be illegal. 15 Am. & Eng. Ency. of Law (2d ed.) 595; Stockdale v. Onwhyn, 5 B. & C. 173; 11 Eng. Com. Law, 417; Fores v. Johnes, 4 Esp. 97.
The early attitude of the courts upon this subject discloses an illiberality of opinion which is not reflected in the recent cases. Perhaps no one was more responsible for this early position than Lord Eldon, who refused to protect by injunction Southey’s “ Wat Tyler” until the innocent character of the work was proved. Southey v. Sherwood, 2 Meriv. 437. He assumed a like position in reference to Byron’s Cain (6 Petersdorif Abr. 558, 559), and expressed a doubt (which he hoped was reasonable) as to the innocent character of Milton’s “ Paradise Lost.” When Dr. Johnson heard of some earlier opinions to the same effect, he is reported to have said: “ They make me think of your judges, not with that respect which I should wish to do.” Judging from the fact that a jury held the publication of Shelley’s “ Queen Mab ” to be an indictable offense (Moxon’s Case, 2 Mod. St. Tr. 356), it seems that jurors were no more liberal than judges in these matters. In commenting upon some of Lord Eldon’s judgments on the subject of literary property, Lord Campbell remarked that “ it must have been a strange occupation for a
It is no part of the duty of courts to exercise a censorship over literary productions. I think it is clear that no contract for the sale of a book can be declared illegal because of the character of the book, unless its sale or publication violates the criminal law. This position was distinctly asserted in Traché v. Heroine, 6 Montreal Law Hep., Super. Ct. 178. In that case the defendants sought to defeat a claim upon a contract for the sale of copies of the works of Victor Hugo. It appeared from the evidence that “ Hotre Dame de Paris,” “ Les Miserables ” and “ Le Pape ” had been placed upon the index librorum prohibitorum, and the defendant claimed that these works were immoral. In rendering judgment for the plaintiff, Mr. Justice Davidson said: “As to English jurisprudence, it may be'safely said that, for all practical purposes, the civil law is determined by and co-extensive with the criminal law. The question in a given case is not simply whether the publication be immoral, but whether it is sufficiently so to enable the criminal law to punish it as such.” Under no reasonable construction can our law be held to declare the sale or publication of the works of Voltaire a crime. In Matter of Worthington Co., 24 L. R. A. 110, decided at the Special Term of the Hew York Supreme Court, Mr. Justice O’Brien directed a receiver appointed by the court to sell the following works: Payne’s edition of “ The Arabian Hights,” “ Fielding’s Hovels,” “ The Works of Babelais,” “ Ovid’s Art of Love,” “ The Decameron of Boccaccio,” “ The Heptameron of Queen Margaret of Havarre,” “ The Confessions of J. J. Bousseau,” “ Tales from the Arabic ” and “Alladin.” This order was made upon the application of the receiver of a publishing house and was opposed by the “ Society for the Suppression of Vice ” upon the same grounds as those which are urged in the case at bar. In authorizing the sale, the court said: “ It is very difficult to see upon what theory these world-
The contract sued upon was a valid contract and no defense to the action upon it was proved.
The judgment is reversed and a new trial ordered, with costs to the appellant to abide the event.
Gildersleeve and Geigerich, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.