APPEAL UPHELD

Nelson Evening Mail, Volume LXXIII, 14 June 1939, Page 5

APPEAL UPHELD

CONVICTION ON INDECENCY CHARGE QUASHED THE "DECAMERON” CASE f United Preae Aasoeiaiionl AUCKLAND. This Day. "I do not think the Crown has established as against defendant that his act in keeping this book on his library shevles or hiring the book out was indecent in the circumstances of this case,” stated his Honour, Mr Justice Elair, in a reserved judgment delivered in Auckland yesterday in which he allowed the appeal of Howard Keddell Sumpter, one of three principals of the London Book Club lending library, against his conviction by a magistrate in Auckland on a charge of having in his possesison for hire an indecent book, entitled the "Decameron of Boccaccio.” His Honour added: "I desire to make it plain that I do not wish to be understood as holding that there may not be circumstances when the sale or hire of this book might not be held to be within the mischief aimed at by the Statute.” The judgment stated that the conviction was under Section 3A of the Indecent Publications Act. 1910. which made it an offence for any person who "sells or delivers by way of hire or offers for sale or has in his possesison for sale or hire an indecent document.” Section 2 of the Act defined as indecent document as meaning "any book having printed on it any indecent statement or significant sign.”

The word indecent in that context was not specifically defined, but Section 5 of the Act detailed certain matters which were to be taken into consideration in considering whether a document was indecent. This stated that a magistrate should take into consideration not merely the nature of the document or matter itself but also the nature and circumstances of the act done by defendant with respect thereto and the purpose with which the act was done and the literary, scientific or artistic merit or importance of the document or matter; and no document or matter should be held to be indecent unless, having regard to these and all other relevant considerations the magistrate was of opinion that the act of defendant was of an immoral or mischievous tendency.

PREFERENCE FOR LIGHT READING

In this case defendant was one of three principals of a lending library business with branches throughout New Zealand and with 65,000 subscribers from all classes of the community. The book concerned in the prosecution was obtained from one of its Auckland branches. This branch had 6000 subscribers, representing all classes of intellect and all shades of literary taste from the heaviest political works to the ligest of reading. Approximately r. quarter of them preferred the heavier class cl reading; the rest the lighter works.

A subscriber paid a shilling entrance fee and then became entitled to take out any book on the shelves at a reading fee of threepence or sixpence, depending on the class of book; 14 days was allowed for reading. The higher fee was charged upon the heavier type of literature and the “Decameron” was in the higher-priced class. There was no restriction on the age of members but there were none under 16 or 17.

Formal proof of getting the book was given by a constable who was a member of the club for four months before getting it. He took the book from the library at random and actually had not heard of it before taking it out to read. It was not in any respect specially displayed and had a loose yellowish cover on it like all the other books in the library. Having read the book he referred it to his superior officer.

The judgment then qouted an article from the Encyclopaedia Britannica on the book and its author in which it was stated: “The ‘Decameron’ is an absoluate work of art, as detached as a play by Shakespeare of a portrait by Velsquez. The scheme is formal

and should be compared with that of, ‘The Thousand and One Nights’ and ‘The Cantrebury Talcs’ .. . The Decameron’ is a world in itself and its effect upon us who read it is the effect of life which includes, for its own good, things moral and immoral . . . . ir is the greatest, as it is the first, pros:; work in the Tuscan language and it holds it own even with the ‘Divine Comedy’ because of its humanity.” IN LIBRARIES GENERALLY The judgment continues that the book, written nearly 600 years ago. was a pioneer of its kind. Professor Sewell, professor of English at Auckland University College, in giving evidence in the lower Court, said he had seen the book in libraries generally. He stated: "Boccaccio’s importance is twofold. It gives, perhaps, the most perfect picture we have of Renaissance humanism .... the second importance is his profound influence of European literature. Boccaccio is the father of the novel ... he gave to European writers the idea of the plot . . . he was the first to do this .. . also character and prose .. . it is the beginnings of the novel form ... in English literature it has been a source book for many of our great writers . . . they took their plots from him. . . Boccaccio would be in a peak in literature such as Shakespeare, Milton, Wordsworth. . . .

"While I admit that perhaps considerable damage may be done to some certain types of mind by self-indulgent reading of Boccaccio,” Professer Sewell said, "yet infinitely more damage is done to minds and to the community by insisting on subterfuge and secrecy. .... I further think that, on the whole, but for the kind of publicity that police action may give, it seems to me that Boccaccio would take his place properly with Ovid, Chaucer and Fielding and be read in the mood in which he himself asks for. ... I think that the type of mind which turns to Boccaccio for self-indulgence might also turn to Shakespeai'c, or even the dictionary, for the same purpose.”

His Honour stated that he had read the book with care and concurred with Professor Sewell’s view as to the entire lack of vulgarity of diction in Boccaccio. "Without desiring to embark upon the ‘perilous pastime of literary criticism, I add also that to me, a comparative layman in literature, I remarked with what frequency one came across expressions in Boccaccio which have becom embalmed in common expressions in everyday speech and literature. This affords indication of the lasting effect upon our language of his writings.”

In the library the book was in a section not called for by three-quarters of the subscribers and was not in anywise advertised; nor was attention called to it, or any part of it. As to its literary or artistic merit the evidence was all one way, that, taken as a whole, it was undoubtely of great historic and artistic merit. This was so notwithstanding that portions of the book as Boccaccio himself had admitted, “can both harm and profit according to the disposition of the listener.” What he meant by that was that a reader with a mind already prurient could get pruriency from the book, but that one not so handicapped and reading the book in its setting would not. It was to be observed that according to defendant there had never been a request to bspeak the book before this prosecution, but that since then the library had been besieged with requests for it. That looked as if before the prosecution the normal demand would be from the heavier class of reader rather than the threepenny class who comprised the majority of the library’s customers.

Proof that there were certain portions of classical works which offended against modern ideas of decency was r.ot enough to support a conviction.