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nation, having cognisance of all offences against the public CHAPTER III morals. (a) But, though one Hill was indicted in Michaelmas, 10 Will. 3, (b) for printing and publishing some obscene poems of Lord Rochester tending to the corruption of youth, and on going abroad was outlawed for the offence; yet in Easter, 6 Anne, in the case of Read, (c) who was indicted and convicted for publishing a lascivious and obscene libel, Holt, C.J., and Powell, J., on a motion in arrest of judgment were so strongly of opinion that the offence was only punishable in the ecclesiastical courts, that no judgment was pronounced against the defendant. However, the case of Rex v. Curl, (d) in 1 Geo. 2, settled the question in favour of the jurisdiction of the temporal courts. An information was filed against the defendant in that case for having published a base and obscene libel entitled "Venus in the Cloister, or the Nun in her Smock," and he was found guilty. An argument took place on a motion in arrest of judgment, and the preceding cases were referred to, the Attorney-General urging in defence of the temporal jurisdiction that to destroy morality was to destroy the peace of the government, since government is no more than public order, which is morality; and that although every immoral act is not indictable, such as telling a lie, &c., yet if it is destructive of morality in general and does, or may, affect all the subjects of the realm, it then becomes an offence of a public nature. The court, dissenting from the opinions expressed in Read's case, upheld the temporal jurisdiction, and Curl was pilloried for his offence. Since this decision the temporal character of the offence of publishing obscene and immoral works has not been questioned.

Test of obscenity.

66

Wilkes was convicted in 1764, imprisoned and heavily fined for publishing an obscene and impious libel called An Essay on Woman;" (e) and very many unreported cases of convictions for a similar offence have since taken place. (ƒ) The test of obscenity in any publication, according to Cockburn, C.J., (g) is this: "Whether the tendency of the (a) Sir Charles Sedley's case, 1663 (Keb. 720, 2 Str. 790). (b) 2 Str. 790; Dig. L. L. 60. (d) 2 Str. 789. One of the members of the court when this case first came before it, Fortescue, J., was of opinion that the offence though great, was not punishable by law. lb. 790. (e) 4 Burr. 2527.

(c) Fort. 98.

(f) As to other forms of obscene or indecent publication, see Sir Charles Sedley's case (ubi supra); Rex v. Crunden (2 Camp. 89); R. v. Rouverard (cited 1 Den. C. C. 338; 2 Car. & K. 933); Reg. v. Webb (1 Den. C. C. 338); Reg. v. Watson (2 Cox, Crim. Cas. 376); Reg. v. Holmes (1 Dears. C. C. 207).

(g) Reg. v. Hicklin (L. Rep. 3 Q. B. 371; 18 L. T. N. S. 398; 36 L. 9, J. 8 M. C.

matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of the sort may fall."

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CHAPTER IIL

sion of obscene

"Preserving and keeping in one's possession" obscene Having possesworks for the purpose of uttering and selling them is not an works for purindictable offence. But "obtaining and procuring" them pose of selling. for that purpose is an indictable misdemeanor at common law. (a) With reference to counts charging the former as an offence, Lord Campbell, C.J., said: "We must hold them bad, because they are consistent with the possibility that the plaintiff in error may have had the pictures in his possession with an innocent intention; and there is no act shown to be done which can be considered as the first step in the prosecution of a misdemeanor. . . . . Procuring is an overt act, an unlawful step taken in pursuance of the abominable offence of circulating obscene prints to deprave and corrupt the public morals."

. .

works.

By 14 & 15 Vict. c. 100, s. 29, it is enacted that, "when- Selling obscene ever any person shall be convicted of any public selling, or exposing for public sale, or to public view, of any obscene book, print, picture, or other indecent exhibition, it shall be lawful for the court to sentence the offender to be imprisoned for any term now warranted by law, and also to be kept to hard labour during the whole or any part of such term of imprisonment."

In 1857 a Bill was introduced into Parliament by Lord Campbell for more effectually preventing the sale of obscene books, pictures, prints, and other articles, by giving power to magistrates to issue warrants to search for and seize them. The Bill, on its second reading in the House of Lords, was opposed by several learned lords as unnecessary, vexatious, and likely to be inoperative with respect to the class of works aimed at. The absence of any definition of the word "obscene" was warmly animadverted upon by Lord Lyndhurst, in a speech pointing out that copies of some of the pictures of the greatest masters, and the writings of many of the greatest dramatists and novelists, might be included under the operation of the Act. Alterations were made by Lord Campbell to meet the objections raised, and the Bill became law the same year. (b)

(a) Dugdale's case (1 Dears. C. C. 64.)

(b) "The Bill, as it originally stood," said Lord Campbell in committee, "only required an affidavit that the person making it had reasonable ground to suspect that these books were kept for sale and exhibition. The Bill, as now amended, required that the complainant should swear that he had reason to believe, and did believe, that these books or prints were kept in store for sale or exhibition. Another

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CHAPTER IIL

for obscene

books, pictures, &c.

Sect. 1 of this Act (20 & 21 Vict. c. 83) provides that, "it shall be lawful for any metropolitan police magistrate, or Power to search other stipendiary magistrate, or for any two justices of the peace, upon complaint made before him or them upon oath that the complainant has reason to believe, and does believe, that any obscene books, papers, writings, prints, pictures, drawings, or other representations are kept in any house, shop, room, or other place within the limits of the jurisdiction of any such magistrate or justices, for the purpose of sale or distribution, exhibition for purposes of gain, lending upon hire, or being otherwise published for purposes of gain, which complainant shall also state upon oath that one or more articles of the like character have been sold, distributed, exhibited, lent, or otherwise published as aforesaid, at or in connection with such place, so as to satisfy such magistrate or justices that the belief of the said complainant is well founded; and upon such magistrate or justices being also satisfied that any of such articles so kept for any of the purposes aforesaid are of such a character and description that the publication of them would be a misdemeanor, and proper to be prosecuted as such, to give authority by special warrant to any constable or police officer into such house, shop, room, or other place, with such assistance as may be necessary, to enter in the daytime, and, if necessary, to use force by breaking open doors or otherwise, and to search for and seize all such books, papers, writings, prints, pictures, drawings, or other representations as aforesaid found in such house, shop, room, or other place, and to carry all the articles so seized before the magistrate or justices issuing the said warrant, or some other magistrate or justices exercising the same jurisdiction; and such magistrate or justices shall thereupon issue a summons, calling upon the occupier of the house or other place which may have been so entered,

amendment enacted that the complainant should set forth the facts on which he entertained that belief, and if the justice were satisfied on these facts that the books and prints were kept as alleged, he might issue his search warrant, with this additional guard, that he must be satisfied they were such books and prints as that their publication would constitute a misdemeanor by the common law. There was also this further security, that the magistrate must not only be satisfied that the publication of these books and prints was a misdemeanor, but a misdemeanor which ought to be prosecuted by indictment:" (Parliamentary Debates, July 3rd, 1857.)

The Bill, as originally introduced, contained a clause empowering the Chief Commissioner of Police, where he had reasonable information that obscene works were kept, to grant a warrant in the same mauner as a magistrate or justices; but the clause, being objected to, was omitted:

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by virtue of the said warrant, to appear within seven days before such police stipendiary magistrate or any two justices CHAPTER III. in petty sessions for the district, to show cause why the articles so seized should not be destroyed; and if such occupier or some other person claiming to be the owner of the said articles shall not appear within the time aforesaid, or shall appear, and such magistrate or justices shall be satisfied that such articles, or any of them, are of the character stated in the warrant, and that such, or any of them, have been kept for any of the purposes aforesaid, it shall be lawful for the said magistrate or justices, and he or they are hereby required to order the articles so seized, except such of them as he or they may consider necessary to be preserved as evidence in some further proceeding, to be destroyed at the expiration of the time hereinafter allowed for lodging an appeal, unless notice of appeal as hereinafter mentioned be given, and such articles shall be in the meantime impounded; and if such magistrate or justices shall be satisfied that the articles seized are not of the character stated in the warrant, or have not been kept for any of the purposes aforesaid, he or they shall forthwith direct them to be restored to the occupier of the house or other place in which they were seized."

of which justices

The magistrate or justices, before ordering a search and Three things seizure under this section, are to be satisfied of three things: must be satisfied first, that the belief of the complainant is well founded; secondly, that any of the articles published for any of the purposes mentioned are of such a character and description that the publication of them would be a misdemeanor; and thirdly, that the publication in the manner alleged would be proper to be prosecuted. (a) And the justices in petty sessions are also in effect to be satisfied of the same three things. Before ordering the works seized to be destroyed, they must be satisfied that the articles complained of have been kept for any of the purposes mentioned, that they are of such a character that it would be a misdemeanor to publish them, and that it would not only be a misdemeanor to publish them, but that it would be proper to be prosecuted as such. (b)

The words "and proper to be prosecuted as such," were, according to Blackburn, J.,(c) inserted in the section with

(a) See per Blackburn, J., Reg. v. Hicklin (L. Rep. 3 Q. B. 373 ; 18 L. T. N. S. 398; 37 L. J. 89, M. C.) (b) Per Blackburn, J., 1b. (c) lb. "The magistrate," said Lord Lyndhurst, on the third reading of the Bill in the House of Lords, "must also be satisfied that the case is a proper one for a prosecution, so that if indecent passages were

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the object of guarding against the vexatious prosecution of CHAPTER III publishers of old and recognized standard works, in which there may be some obscene or mischievous matter, e.g., the works of Dryden.

Intention of publisher immaterial.

If a work be in itself obscene, however innocent may be the motive of its publisher, the publication of it is an indictable misdemeanor, and the work may be seized by a magistrate or justices under sect. 1 of 20 & 21 Vict. c. 83.(a)

Where a pamphlet called "The Confessional Unmasked; showing the depravity of the Romish priesthood, the iniquity of the confessional, and the questions put to females in confession," containing extracts in Latin, with translations of the same, from various writers, half the pamphlet relating to controversial matters, and the other half being grossly obscene as relating to impure and filthy acts, words, and deeds, was circulated by the appellant, a member of "The Protestant Electoral Union," not for profit or gain, but for the purpose of exposing what he deemed to be the errors of the Church of Rome, and particularly the immorality of the confessional, the pamphlet in fact containing a preface and notes condemnatory of the tenets and principles of the writers cited from, the Court of Queen's Bench held that the justices were right in ordering a number of copies of the pamphlet to be seized in the appellant's house and destroyed as obscene books within this section. (b) "I take it," said Cockburn, C. J., " that, apart from the ulterior object which the publisher of this work had in view, the work itself is, in every sense of the term, an obscene publication, and that consequently, as the law of England does not allow of any obscene publication, such publication is indictable. We have it therefore that the publication itself is a breach of the law. But then it is said for the appellant, Yes, but his purpose was not to deprave the public mind; his purpose was to expose the errors of the Roman Catholic religion, especially in the matter of the confessional.' Be it so. question then presents itself in this simple form: May you commit an offence against the law in order that thereby you may effect some ulterior object which you have in view, which may be an honest and even a laudable one? My answer is, emphatically, no. The law says, you shall not

The

taken out of such authors as Dryden or Pope, he would say—' Although these are very indecent passages, and ought never to have been inserted in these works, yet this is not a case for a prosecution:'" (Parliamentary Debates, July 13, 1857).

(a) Reg. v. Hicklin (L. Rep. 3 Q. B. 373; 37 L. J. 89, M.C.; 18 L. T. N. S. 398. (b) Ib.