In re Worthington Co. — 62 N.Y. St. Rep. 115

Majority

p. 115

In the Matter of the Worthington Company.

(Supreme Court, New Fork Special Term,

Filed June 22, 1894.)

Headnote

Receiver—Sale—Standard literature.

The court will not prohibit, in the hands of a receiver, the sale of rare

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and costly editions of the Arabian Nights and other similar standard literary works on the ground of coming under the designation of immoral literature.

Application by receiver for instructions as to disposition of certain books.

James M. Fisk, for receiver; Anthony Comstock, opposed.

After consultation with some of my brethren, we have concluded that the following views should be expressed concerning the merits of this motion: This is an application made by the receiver of the Worthington Company for instructions concerning the final disposition of certain books which were found among the assets of that company, and which are now in his custody, and respecting which it is alleged by certain parties that they are unfit for general circulation, and come under the designation of “immoral literature,” and as such should be-excluded from sale. That these books constitute valuable assets of this receivership cannot be doubted, and the question before the court for decision on this motion is whether or not they are of such a character as should be condemned and their sale prohibited. The books in question consist of Payne’s edition of the Arabian Nights, Fielding’s novel, Tom Jones, the works of Babelais, Ovid's Art of Love, the Decameron of Boccaccio, the Heptameron of Queen Margaret of Navarre, the Confessions of J. J. Bousseau, Tales from the Arabic, and Alladin. Most of the volumes that have been submitted to the inspection of the court are of choice editions, both as to the letter press and the bindings, and are such, both as to their commercial value and subject matter, as to prevent their being.generally sold or purchased, except by those who would desire them for their literary merit, or for their worth as specimens of fine book-making. It is very difficult to see upon what theory these world-renowned classics can be regarded as specimens of that pornographic literature which it is the office of the Society for the Suppression of Yice to suppress, or how thej1can come under any stronger condemnation than that high standard literature which consists of the works of Shakespeare, of Chaucer, of Laurence Stern, and other great English writers, without making reference to many parts of the Old Testament Scripture, which are to be found in almost every household in the land. The very artistic character, the high qualities of style, the absence of those glaring and crude pictures, scenes and descriptions which affect the common and vulgar mind, make a place for books of the character in question, entirely apart from such gross and obscene writings as it is the duty of the public authorities to suppress. It would be quite as unjustifiable to condemn the writings of Shakespeare and Chaucer and Laurence Sterne, the early English novelists, the playwrights of the Bestoration, and the dramatic literature which has so much enriched the English language, as to place an interdict upon these volumes, which have received the admiration of literary men for so many years. What has become standard literature of the English language—has been wrought- into the very structure of our splendid English litera

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ture—is not to be pronounced at this late day unfit for publication or circulation, and stamped with judicial disapprobation, as 'hurtful to the community. The works under consideration are the product of the greatest literary genius. Payne’s Arabian Nights is a wonderful exhibition of Oriental scholarship, and the other volumes have so long held a supreme rank in literature that it would be absurd to call them now foul and unclean. A seeker after the sensual and degrading parts of a narrative may find in all these works, as in those of other great authors, something to satisfy his pruriency. But to condemn a standard .literary work, because of a few of its episodes, would compel the exclusion from circulation of a very large proportion of the works of fiction of the most famous writers of the English language. There is no such evil to be feared from the sale of these rare and costly books as the imagination of many even well-disposeu people might apprehend. They rank with the higher literature, and would not be bought nor appreciated by the class of people from whom unclean publications ought to be withheld. They are not corrupting in their influence upon the young, for they are not likely to reach them. I am satisfied that it would be a wanton destruction of property to prohibit the sale by the receiver of these works, — for if their sale ought to be prohibited the books should be burned,—but I find no reason in law, morals or expediency why they should not be sold for the benefit of the creditors of the receivership.

The receiver is therefore allowed to sell these volumes.