Regina v. Hicklin

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Regina v. Hicklin  (1868) 
Cockburn, C.J., Blackburn, Mellor, and Lush, J.J. (Queen's Bench)
Established the Hicklin Test for obscene publications.
''Regina v. Hicklin''
Court of the Queen's Bench
Date decided: 29 April 1868
Full case name: The Queen, on the Prosecution of Henry Scott, Appelant, v. Benjamin Hicklin and Another, Justices of Wolverhampton, Respondents
Citations: [1868] LR 3 QB 360
Judges sitting: Cockburn, C.J., Blackburn, Mellor, and Lush, J.J.
Cases cited: Reg. v. Moxon (2 Mod. S. Tr. 356.), Rex v. Dixon (3 M. & S. at p. 15.), Rex v. Vantandillo. (4 M. & S. 73.)
Legislation cited: 20 & 21 Vict. c. 83
Case history
Prior actions: Appellant convicted, conviction quashed by recorder.
Subsequent actions: None
Keywords
Obscenity, Intent.


The Queen, on the Prosecution of Henry Scott, Appelant

v.

Benjamin Hicklin and Another, Justices of Wolverhampton, Respondents

L.R. 3 Q.B. 360 (1868). Court of the Queen's Bench.

Cockburn, C.J., Blackburn, Mellor, and Lush, J.J. sitting.

Headnote[edit]

By 20 & 21 Vict. c. 83, s. 1, if upon complaint that there is reason to believe that any obscene books, &c. are kept in any house or other place, for the purpose of sale or distribution, and upon proof that one or more of such articles has been sold or distributed in connection with such place, justices may, upon being satisfied that such articles are of such a character and description that the publication of them would be a misdemeanor and proper to be prosecuted as such, order by special warrant that such articles shall be seized, and after summoning the occupier of the house, the same or other justices may, if they are satisfied that the articles seized are of the character stated in the warrant, and have been kept for the purposes aforesaid, order them to be destroyed. A number of copies of a pamphlet entitled, "The Confessional Unmasked; shewing the depravity of the Romish priesthood, the iniquity of the Confessional, and the questions put to females in confession," were seized in the appellant's house and ordered by justices of a borough to be destroyed as obscene books within the above section.

On appeal, the following facts were found. The pamphlet consisted of extracts taken from the writings of theologians on the doctrine and discipline of the Romish Church and particularly on the practice of auricular confession. On one side of the page were passages in the original Latin, and opposite to each passage was a free translation in English. The pamphlet also contained a preface and notes condemnatory of the tenets and principles of the writers. About half of the pamphlet related to controversial questions, but the latter half of the pamphlet was grossly obscene, as relating to impure and filthy acts, words, and ideas. The appellant sold the pamphlets at the price he gave for them to any one who applied for them. He did not keep the pamphlets to sell for profit or gain, nor for the purpose of prejudicing good morals, though the indiscriminate sale and circulation of them was calculated to have that effect; but he kept and sold them 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 recorder, being of opinion that the sale and distribution of the pamphlets under the above circumstances would not be a misdemeanor, quashed the order of justices:

Held, that the order of justices was right: for that the publication of such an obscene pamphlet was a misdemeanor, and was not justified or excused by the appellant's innocent motives or object; he must be taken to have intended the natural consequences of his act.

Introduction[edit]

AT the quarter sessions for the borough of Wolverhampton on the 27th of May, 1867, Henry Scott appealed against an order made by two justices of the borough under 20 & 21 Vict. c. 83[1], whereby the justices ordered certain books which had been seized in the dwelling-house of the appellant, within their jurisdiction, to be destroyed, as being obscene books within the meaning of the statute.

The appellant is a metal broker, residing in the town of Wolverhampton, and a person of respectable position and character. He is a member of a body styled "The Protestant Electoral Union," whose objects are, inter alia, "to protest against those teachings and practices which are un-English, immoral, and blasphemous, to maintain the Protestantism of the Bible and the liberty of England," and "to promote the return to Parliament of men who will assist them in these objects, and particularly will expose and defeat the deep-laid machinations of the Jesuits, and resist grants of money for Romish purposes." In order to promote the objects and principles of this society, the appellant purchased from time to time, at the central office of the society in London, copies of a pamphlet, entitled "The Confessional Unmasked; shewing the depravity of the Romish priesthood, the iniquity of the Confessional, and the questions put to females in confession;" of which pamphlets he sold between two and three thousand copies at the price he gave for them, viz., 1s. each, to any person who applied for them.

A complaint was thereupon made before two justices of the borough, by a police officer acting under the direction of the Watch Committee of the borough, and the justices issued their warrant under the above statute, by virtue of which warrant 252 of the pamphlets were seized on the premises of the appellant, and ordered by the justices to be destroyed. The pamphlet[2] consists of extracts taken from the works of certain theologians who have written at various times on the doctrines and discipline of the Church of Rome, and particularly on the practice of auricular confession. On one side of the page are printed passages in the original Latin, correctly extracted from the works of those writers, and opposite to each extract is placed a free translation of such extract into English. The pamphlet also contains a preface and notes and comments, condemnatory of the tracts and principles laid down by the authors from whose works the extracts are taken. About one half of the pamphlet relates to casuistical and controversial questions which are not obscene, but the remainder of the pamphlet is obscene in fact as relating to impure and filthy acts, words, and ideas. The appellant did not keep or sell the pamphlets for purposes of gain, nor to prejudice good morals, though the indiscriminate sale and circulation of them is calculated to have that effect; but he kept and sold the pamphlets, as a member of the Protestant Electoral Union, to promote the objects of that society, and to expose what he deems to be errors of the Church of Rome, and particularly the immorality of the Confessional.

The recorder was of opinion that, under these circumstances, the sale and distribution of the pamphlets would not be a misdemeanor, nor, consequently, be proper to be prosecuted as such, and that the possession of them by the appellant was not unlawful within the meaning of the statute. He therefore quashed the order of the justices, and directed the pamphlets seized to be returned to the appellant, subject to the opinion of the Court of Queen's Bench.

If the Court should be of opinion, upon the facts stated, that the sale and distribution of the pamphlets by the appellant would be a misdemeanor, and proper to be prosecuted as such, the order of the justices for destroying the pamphlets so seized was to be enforced; if not, the order was to be quashed.

Argument[edit]

Kydd, for the appellant. The decision of the recorder was right, the intention of the appellant being innocent, the publication of this pamphlet was not an indictable misdemeanor; and therefore the justices had no jurisdiction to order the copies to be destroyed. The book is controversial.

[COCKBURN, C.J. The recorder has found that the work, at least the latter half of it, is obscene, and there can be no doubt of it; and the question is, that being so, are the magistrates deprived of jurisdiction to destroy this obscene work, because the real object of the appellant in distributing it was not to do harm, but good?]

The criminal intention must be shewn before the justices have jurisdiction; but here that intent is expressly negatived. Thus in Woodfall's Case[3], Lord Mansfield told the jury, "That, where an act, in itself indifferent, if done with a particular intent becomes criminal, then the intent must be proved and found; but when the act is in itself unlawful, ... the proof of justification or excuse lies on the defendant; and in failure thereof, the law implies a criminal intent." But the question of intent is for the jury, per Lord Ellenborough in Rex v. Lambert[4]; although the law was formerly otherwise: Rex v. Shebbeare[5]; see also, however, per Holt, C.J., in Tutchin's Case.[6] In Fowler v. Padget[7] it was held that a debtor leaving his house did not commit an act of bankruptcy, though creditors were delayed, unless there was an intention to delay, and Lord Kenyon observed, "It is a principle of natural justice and of our law, that actus non facit reum nisi mens sit rea. The intent and the act must both concur to constitute the crime." In Reg. v. Sleep[8] in which an indictment was laid under 9 & 10 Wm. 3, c. 41, s. 2, for having been in possession of naval stores, and the jury negatived that the prisoner knew that the stores were marked with the broad arrow, Cockburn, C.J., said, "It is a principle of our law that to constitute an offence there must be a guilty mind, and that principle must be imported into the statute, although the Act itself does not in terms make a guilty mind necessary to the commission of the offence." Reg. v. Dodsworth[9], and Reg. v. Allday[10], are to the same effect. In Buckmaster v. Reynolds[11], Erle, C.J., says, "A man cannot be said to be guilty of a delict unless to some extent his mind goes with the act. Here it seems that the respondent acted on the belief that he had a right to enter the room, and that he had no intention to do a wrongful act."

The mere use of obscene words, or the occurrence of obscene passages, does not make the work obscene. Thus Milton, in his celebrated defence of himself,[12] justifies by examples the use of language adequate to the occasion, though it may be obscene. On this principle it is that the defence of unlicensed printing has always been based. The opposite principle is that of the Church of Rome. Thus in Hallam's Literature of Europe, part ii., c. 8, s. 70, it is said, "Rome struck a fatal blow at literature in the index expurgatorius of prohibited books. ... The first list of books prohibited by the church was set forth by Paul IV. in 1559. His index includes all bibles in modern languages, enumerating forty-eight editions, chiefly printed in countries still within the obedience of the church." If mere obscenity, without reference to the object, is indictable, Collier's View of the Immorality of the English Stage, written with the best motives and published with the best results, would have been indictable. The same may be said of David Clarkson's works, just now republished in Edinburgh, with a preface by Dr. Miller. What can be more obscene than many pictures publicly exhibited, as the Venus in the Dulwich gallery?

[LUSH, J. It does not follow that because such a picture is exhibited in a public gallery, that photographs of it might be sold in the streets with impunity.]

What can be more obscene than Bayle's Dictionary, or many of the works of the standard authors in English poetry, from Chaucer to Byron? - Dryden's translation, for instance, of the sixth satire of Juvenal? Or Savage's St. Valentine's Day? And yet of Savage, the great moralist Dr. Johnson,[13] says, alluding to the attempt to prosecute him in the King's Bench for his "Progress of a Divine," as being an obscene libel: "It was urged in his defence, that obscenity was criminal when it was intended to promote the practice of vice; but that Mr. Savage had only introduced obscene ideas with the view of exposing them to detestation, and of amending the age by showing the deformity of wickedness. This plea was admitted, and Sir Philip Yorke, who then presided in that court, dismissed the information, with encomiums upon the purity and excellence of Mr. Savage's writings." So here, the object of the compiler, as expressed in his preface and his comments throughout the pamphlet, is to expose the obscenity and grossness of the Romish practice of the confessional. In Murray v. Benbow[14] shortly noticed with other cases in Phillips on Copyright, pp. 23-25, Lord Eldon, C., refused an injunction to restrain the sale of a pirated edition of Lord Byron's Cain, on the ground that it was a profane libel. Lord Eldon's judgment is given in the prefatory notes to Cain in the collected editions of Byron's works by Moore. And the learned judge expressly puts the distinction of the author's motive. Thus, alluding to Paradise Lost and Regained, he says: "It appears to me that the great object of the author was to promote the cause of Christianity. There are undoubtedly a great many passages in it, of which, if that were not the object, it would be very improper by law to vindicate the publication; but, taking it altogether, it is clear that the object and effect was not to bring disrepute, but to promote the reverence, of our religion."

[BLACKBURN, J. "Object and effect;" concede the object here to be good, what was the effect?]

Starkie, in his Law of Slander and Libel, vol. ii., p. 147, 2nd edit., treating of blasphemy as a crime, says: "A malicious and mischievous intention, or what is equivalent to such an intention, in law, as well as morals, a state of apathy and indifference to the interests of society, is the broad boundary between right and wrong. If it can be collected from the circumstances of the publication, from a display of offensive levity, from contumelious and abusive expressions applied to sacred persons or subjects, that the design of the author was to occasion that mischief to which the matter which he publishes immediately tends, to destroy or even to weaken man's sense of religious or moral obligations, to insult those who believe by casting contumelious abuse and ridicule upon their doctrines, or to bring the established religion and form of worship into disgrace and contempt, the offence against society is complete."

[BLACKBURN, J. The argument to meet the present case must go the length, that the object being good, or at all events innocent, would justify the publication of anything however indecent, however obscene, and however mischievous.

LUSH, J. And by any means such as giving away obscene extracts like these as tracts.

COCKBURN, C.J. A medical treatise, with illustrations necessary for the information of those for whose education or information the work is intended, may, in a certain sense, be obscene, and yet not the subject for indictment; but it can never be that these prints may be exhibited for any one, boys and girls, to see as they pass. The immunity must depend upon the circumstances of the publication.]

The animus must always be looked at. Thus in Moxon's Case,[15] which was a prosecution of the publisher of Shelley's works for blasphemy, Lord Denman, C.J., in summing up, is reported to have said: "The purpose of the passage cited from 'Queen Mab' was, he thought, to cast reproach and insult upon what in Christian minds were the peculiar objects of veneration. It was not, however, sufficient that mere passages of such an offensive character should exist in a work, in order to render the publication of it an act of criminality. It must appear that no condemnation of such passages appeared in the context." Such condemnation does appear in page after page of this pamphlet. Alderson, B., distinctly recognized the right of every one to attack the errors of any sect of religion. In Gathercole's Case,[16] that learned Judge told the jury, "A person may, without being liable to prosecution for it, attack Judaism, Mohammedanism, or even any sect of the Christian religion (except the established religion of the country) ... The defendant here has a right to entertain his opinions, to express them, and to discuss the subject of the Roman Catholic religion and its institutions." Lord Mansfield expressed himself to the same effect in a speech in the House of Lords, which is cited by Lord Campbell in his life of Lord Mansfield.[17]

The 20 & 21 Vict. c. 83, s. 1, does not make the mere possession or sale of an obscene work sufficient, and the question is therefore quo animo was the publication; and the mere committing of the act is not sufficient, as in 3 & 4 Wm. 4, c. 15, s. 2, or 5 & 6 Vict. c. 93, s. 3. Here the publication of this pamphlet, though obscene, was with an honest intention of exposing the Roman Confessional, an object honestly carried out by correct quotations of the original Latin, correctly translated. The recorder has found that this was the intention, and he therefore rightly decided that the publication was not a misdemeanor. A. S. Hill, Q.C., for the respondents. The preamble of the statute, taken with the enacting part, shows what the intention of the legislature was, and the question is whether the pamphlet was of such a character as to make the publication of it a misdemeanor.

[COCKBURN, C.J. The section says, "for the purposes of gain."]

The word "gain" does not occur in the clause, "for the purpose of sale or distribution." If the work be of an obscene character, it may be questioned whether intention has anything to do with the matter. But, if intention is necessary, it must be inferred that the appellant intended the natural consequences of his act, which the recorder finds are to prejudice good morals, and the motive of such a publication cannot justify it. Thus, an indictment lies for carrying a child with an infectious disease in the public streets, though there was no intention to do injury to the passengers: Rex v. Vantandillo.[18] In Rex v. Topham,[19] Lord Kenyon says: "It was argued, that even supposing there was sufficient evidence of publication, there was no evidence of a criminal intent in the defendant. To this I can answer in the words of Lord Mansfield. - The case is that of Harrison v. Evans,[20] and was an action of debt for penalties commenced in the Sheriff's Court against Evans for not serving the office of sheriff, which he refused, on account of being a dissenter, and not having received the sacrament according to the rites of the Church of England within a year before his election. The extracts from Lord Mansfield's speech in the House of Lords, that are quoted by Lord Campbell, are from the speech as given by Dr. Philip Furneaux (not Faraceaux as printed in Campbell's Lives) in an appendix to the second edition of "Letters to Mr. Justice Blackstone concerning his Exposition of the Act of Toleration." London, Cadell, 1771; see pp. 277-8.

Lord Mansfield in Rex v. Woodfall,[21] that 'where the act is in itself unlawful (as in this case), the proof of justification or excuse lies on the defendant; and in failure thereof, the law implies a criminal intent;'" and this passage is again cited with approbation by Lord Ellenborough in Rex v. Phillips.[22]

[BLACKBURN, J. Lord Ellenborough propounded the same principle in Rex v. Dixon.[23]]

The ruling of Alderson B., in Gathercole's Case,[24] part of which was cited for the appellant, is also in point. "This indictment charges the defendant with intending to injure the character of the prosecutors; and every man, if he be a rational man, must be considered to intend that which must necessarily follow from what he does." In Starkie, on Slander and Libel, vol. ii. p. 158, 2nd ed., it is said, "Ever since the decision in Curl's Case,[25] it seems to have been settled, that any publication tending to the destruction of the morals of society is punishable by indictment. ... Although many vicious and immoral acts are not indictable, yet, if they tend to the destruction of morality in general, if they do or may affect the mass of society, they become offences of a public nature." Reg. v. Read[26] was to the contrary; it was there held that an indictment would not lie for publishing an obscene libel, unless it libelled some one; and the note added by Fortescue is remarkable, and much in point. "N.B. There was the case of the King v. Curl in B. R., which was an indictment for printing and publishing a libel called The Nun in her Smock, which contained several bawdy expressions, but did contain no libel against any person whatsoever; the Court gave judgment against the defendant, but contrary to my opinion; and I quoted this case. And, indeed, I thought it rather to be published on purpose to expose the Romish priests, the father confessors, and the popish religion."

[The Court then adjourned; on the Judges' return into court.]

Decision[edit]

Cockburn, C.J.[edit]

We have considered this matter, and we are of opinion that the judgment of the learned recorder must be reversed, and the decision of the magistrates affirmed. This was a proceeding under 20 & 21 Vict. c. 83, s. 1, whereby it is provided that, in respect of obscene books, &c., kept to be sold or distributed, magistrates may order the seizure and condemnation of such works, in case they are of opinion that the publication of them would have been the subject-matter of an indictment at law, and that such a prosecution ought to have been instituted. Now, it is found here as a fact that the work which is the subject-matter of the present proceeding was, to a considerable extent, an obscene publication, and, by reason of the obscene matter in it, calculated to produce a pernicious effect in depraving and debauching the minds of the persons into whose hands it might come. The magistrates must have been of opinion that the work was indictable, and that the publication of it was a fit and proper subject for indictment. We must take the latter finding of the magistrates to have been adopted by the learned recorder when he reversed their decision, because it is not upon that ground that he reversed it; he leaves that ground untouched, but he reversed the magistrates' decision upon the ground that, although this work was an obscene publication, and although its tendency upon the public mind was that suggested upon the part of the information, yet that the immediate intention of the appellant was not so to affect the public mind, but to expose the practices and errors of the confessional system in the Roman Catholic Church. Now, we must take it, upon the finding of the recorder, that such was the motive of the appellant in distributing this publication; that his intention was honestly and bona fide to expose the errors and practices of the Roman Catholic Church in the matter of confession; and upon that ground of motive the recorder thought an indictment could not have been sustained, inasmuch as to the maintenance of the indictment it would have been necessary that the intention should be alleged and proved, namely, that of corrupting the public mind by the obscene matter in question. In that respect I differ from the recorder. I think that if there be an infraction of the law the intention to break the law must be inferred, and the criminal character of the publication is not affected or qualified by there being some ulterior object in view (which is the immediate and primary object of the parties) of a different and of an honest character. It is quite clear that the publishing an obscene book is an offence against the law of the land. It is perfectly true, as has been pointed out by Mr. Kydd, that there are a great many publications of high repute in the literary productions of this country the tendency of which is immodest, and, if you please, immoral, and possibly there might have been subject-matter for indictment in many of the works which have been referred to. But it is not to be said, because there are in many standard and established works objectionable passages, that therefore the law is not as alleged on the part of this prosecution, namely, that obscene works are the subject-matter of indictment; and I think the test of obscenity is this, whether the tendency of the 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 this sort may fall. Now, with regard to this work, it is quite certain that it would suggest to the minds of the young of either sex, or even to persons of more advanced years, thoughts of a most impure and libidinous character. The very reason why this work is put forward to expose the practices of the Roman Catholic confessional is the tendency of questions, involving practices and propensities of a certain description, to do mischief to the minds of those to whom such questions are addressed, by suggesting thoughts and desires which otherwise would not have occurred to their minds. If that be the case as between the priest and the person confessing, it manifestly must equally be so when the whole is put into the shape of a series of paragraphs, one following upon another, each involving some impure practices, some of them of the most filthy and disgusting and unnatural description it is possible to imagine. I take it therefore, 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. The 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 publish an obscene work. An obscene work is here published, and a work the obscenity of which is so clear and decided, that it is impossible to suppose that the man who published it must not have known and seen that the effect upon the minds of many of those into whose hands it would come would be of a mischievous and demoralizing character. Is he justified in doing that which clearly would be wrong, legally as well as morally, because he thinks that some greater good may be accomplished? In order to prevent the spread and progress of Catholicism in this country, or possibly to extirpate it in another, and to prevent the state from affording any assistance to the Roman Catholic Church in Ireland, is he justified in doing that which has necessarily the immediate tendency of demoralizing the public mind wherever this publication is circulated? It seems to me that to adopt the affirmative of that proposition would be to uphold something which, in my sense of what is right and wrong, would be very reprehensible. It appears to me the only good that is to be accomplished is of the most uncertain character. This work, I am told, is sold at the corners of streets, and in all directions, and of course it falls into the hands of persons of all classes, young and old, and the minds of those hitherto pure are exposed to the danger of contamination and pollution from the impurity it contains. And for what? To prevent them, it is said, from becoming Roman Catholics, when the probability is, that nine hundred and ninety-nine out of every thousand into whose hands this work would fall would never be exposed to the chance of being converted to the Roman Catholic religion. It seems to me that the effect of this work is mischievous and against the law, and is not to be justified because the immediate object of the publication is not to deprave the public mind, but, it may be, to destroy and extirpate Roman Catholicism. I think the old sound and honest maxim, that you shall not do evil that good may come, is applicable in law as well as in morals; and here we have a certain and positive evil produced for the purpose of effecting an uncertain, remote, and very doubtful good. I think, therefore, the case for the order is made out, and although I quite concur in thinking that the motive of the parties who published this work, however mistaken, was an honest one, yet I cannot suppose but what they had that intention which constitutes the criminality of the act, at any rate that they knew perfectly well that this work must have the tendency which, in point of law, makes it an obscene publication, namely, the tendency to corrupt the minds and morals of those into whose hands it might come. The mischief of it, I think, cannot be exaggerated. But it is not upon that I take my stand in the judgment I pronounce. I am of opinion, as the learned recorder has found, that this is an obscene publication. I hold that, where a man publishes a work manifestly obscene, he must be taken to have had the intention which is implied from that act; and that, as soon as you have an illegal act thus established, quoad the intention and quoad the act, it does not lie in the mouth of the man who does it to say, "Well, I was breaking the law, but I was breaking it for some wholesome and salutary purpose." The law does not allow that; you must abide by the law, and if yon would accomplish your object, you must do it in a legal manner, or let it alone; you must not do it in a manner which is illegal. I think, therefore, that the recorder's judgment must be reversed, and the order must stand.

Blackburn, J.[edit]

I am of the same opinion. The question arises under the 20 & 21 Vict. c. 83, an act for "the more effectually preventing the sale of obscene books," and so forth; and the provision in the first section is this:- [The learned judge read the section.] Now, what the magistrate or justices are to be satisfied of is that the belief of the complainant is well founded, and also "that any of such articles so published for any of the purposes aforesaid, are of such a character and description," that is to say of such an obscene character and description, that the publication of them would be a misdemeanor, and that the publication in the manner alleged would be proper to be prosecuted; and having satisfied themselves in respect of those things, the magistrates may proceed to order the seizure of the works. And then the justices in petty sessions are also in effect to be satisfied of the same three things; first, that the articles complained of have been kept for any of the purposes aforesaid, and that they are of the character stated in the warrant, that is, 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; and then, and then only, are they to order them to be destroyed. I think with respect to the last clause, that the object of the legislature was to guard against the vexatious prosecution of publishers of old and recognized standard works, in which there may be some obscene or mischievous matter. In the case of Reg. v. Moxon,[27] and in many of the instances cited by Mr. Kydd, a book had been published which, in its nature, was such as to be called obscene or mischievous, and it might be held to be a misdemeanor to publish it; and on that account an indictable offence. In Moxon's Case,[28] the publication of Shelley's "Queen Mab" was found by the jury to be an indictable offence; I hope I may not be understood to agree with what the jury found, that the publication of "Queen Mab" was sufficient to make it an indictable offence. I believe, as everybody knows, that it was a prosecution instituted merely for the purpose of vexation and annoyance. So whether the publication of the whole works of Dryden is or is not a misdemeanor, it would not be a case in which a prosecution would be proper; and I think the legislature put in that provision in order to prevent proceedings in such cases. It appears that the work in question was published, and the magistrates in petty sessions were satisfied that it was a proper subject for indictment, and their finding as to that accords with the view we entertain. Then there was an appeal to the recorder in quarter sessions to reverse their decision, which appeal was successful. The learned recorder, in stating the grounds on which he reversed their decision, says, "About one half of the pamphlet relates to casuistical and controversial questions which are not obscene, but the latter half of the pamphlet is obscene in fact, as containing passages which relate to impure and filthy acts, words and ideas. The appellant did not keep or sell the pamphlets for purposes of gain, nor to prejudice good morals, though the indiscriminate sale and circulation of them is calculated to have that effect; but he kept and sold the pamphlet as a member of the Protestant Electoral Union, to promote the objects of that society, and to expose what he deemed to be errors in the church of Rome, and particularly the immorality of the confessional." The recorder then says he was of opinion that the sale and distribution of the pamphlet would not be a misdemeanor, nor consequently be proper to be prosecuted as such, and upon that ground he quashed the magistrates' order, leaving to this Court the question whether he was right or not. Upon that I understand the recorder to find the facts as follows: He finds that one half of the book was in fact obscene, and he finds that the effect of it would be such, that the sale and circulation of it was calculated to prejudice good morals. He does not find that he differs from the justices at all in matter of fact as to that, but he finds that the publication would not be indictable at all as a misdemeanor, and consequently that it would not be proper to prosecute it as a misdemeanor; and his reason for thinking it was not indictable as a misdemeanor is this, that the object of the person publishing was not to injure public morality, but with a view to expose the errors of the Church of Rome, and particularly the immorality, as he thought it, of the confessional; and, consequently upon those grounds, the recorder held it was not indictable. Then comes the question whether, upon those grounds, the publication was not indictable, and I come to the conclusion that the recorder was wrong, and that it would be indictable. I take the rule of law to be, as stated by Lord Ellenborough in Rex v. Dixon,[29] in the shortest and clearest manner: "It is a universal principle that when a man is charged with doing an act" (that is a wrongful act, without any legal justification) "of which the probable consequence may be highly injurious, the intention is an inference of law resulting from the doing the act." And although the appellant may have had another object in view, he must be taken to have intended that which is the natural consequence of the act. If he does an act which is illegal, it does not make it legal that he did it with some other object. That is not a legal excuse, unless the object was such as under the circumstances rendered the particular act lawful. That is illustrated by the same case of Rex v. Dixon.[30] The question in that particular case was, whether or not an indictment would lie against a man who unlawfully and wrongfully gave to children unwholesome bread, but without intent to do them harm. The defendant was a contractor to supply bread to a military asylum, and he supplied the children with bread which was unwholesome and deleterious, and although it was not shewn or suggested that he intended to make the children suffer, yet Lord Ellenborough held that it was quite sufficient that he had done an unlawful act in giving them bread which was deleterious, and that an indictment could be sustained, as he must be taken to intend the natural consequences of his act. So in the case in which a person carried a child which was suffering from a contagious disease, along the public road to the danger of the health of all those who happened to be in that road, it was held to be a misdemeanor, without its being alleged that the defendant intended that anybody should catch the disease: Rex v. Vantandillo.[31] Lord Ellenborough said that if there had been any necessity, as supposed, for the defendant's conduct, this would have been matter of defence. If, on the other hand, the small-pox hospital were on fire, and a person in endeavouring to save the infected inmates from the flames, took some of them into the crowd, although some of the crowd would be liable to catch the small-pox, yet, in that case, he would not be guilty of a wrongful act, and he does not do it with a wrong intention, and he would have a good defence, as Lord Ellenborough said, under not guilty. To apply that to the present case, the recorder has found that one half of this book is obscene, and nobody who looks at the pamphlet can for a moment doubt that really one half of it is obscene, and that the indiscriminate circulation of it in the way in which it appears to have been circulated, must be calculated necessarily to prejudice the morals of the people. The object was to produce the effect of exposing and attacking the Roman Catholic religion, or practices rather, and particularly the Roman Catholic confessional, and it was not intended to injure public morals; but that in itself would be no excuse whatever for the illegal act. The occasion of the publication of libellous matter is never irrelevant, and is for the jury, and the jury have to consider, taking into view the occasion on which matter is written which might injure another, is it a fair and proper comment, or is it not more injurious than the circumstances warranted? But on the other hand it has never been held that the occasion being lawful can justify any libel, however gross. I do not say there is anything illegal in taking the view that the Roman Catholics are not right. Any Protestant may say that without saying anything illegal. Any Roman Catholic may say, if he pleases, that Protestants are altogether wrong, and that Roman Catholics are right. There is nothing illegal in that. But I think it never can be said that in order to enforce your views, you may do something contrary to public morality; that you are at liberty to publish obscene publications, and distribute them amongst every one - schoolboys and every one else - when the inevitable effect must be to injure public morality, on the ground that you have an innocent object in view, that is to say, that of attacking the Roman Catholic religion, which you have a right to do. It seems to me that never could be made a defence to an act of this sort, which is in fact a public nuisance. If the thing is an obscene publication, then, notwithstanding that the wish was, not to injure public morality, but merely to attack the Roman Catholic religion and practices, still I think it would be an indictable offence. The question, no doubt, would be a question for the jury; but I do not think you could sb construe this statute as to say, that whenever there is a wrongful act of this sort committed, you must take into consideration the intention and object of the party in committing it, and if there are laudable, that that would deprive the justices of jurisdiction. The justices must themselves be satisfied that the publication, such as the publication before them, would be a misdemeanor on account of its obscenity, and that it would be proper to indict. The recorder has found that the pamphlet is obscene, and he supports the justices in every finding, except in what he has reversed it upon. He finds the object of the appellant in publishing the work was not to prejudice good morals, and consequently he thinks it would not be indictable at all. But I do not understand him for a moment to say, that if he had not thought there was a legal object in view, it would not have been a misdemeanor at all, and that therefore it would have been vexatious or improper to indict it; nor do I think that anybody who looks at this book would for a moment have a doubt upon the matter. That being so, on the question of whether or not on the facts that the recorder has found it would be a misdemeanor and indictable as such, I come to the conclusion that it is a misdemeanor, and that an indictment would lie; and I say the justices were right, and consequently the recorder's decision is reversed, and the order of justices is confirmed.

Mellor, J.[edit]

I confess I have with some difficulty, and with some hesitation, arrived very much at the conclusion at which my Lord and my learned Brothers have arrived. My difficulty was mainly, whether or not this publication was, under the finding of the recorder, within the act having reference to obscene publications. I am not certainly in a condition to dissent from the view which my Lord and my Brothers have taken as to the recorder's finding, and if that view be correct then I agree with what has been said by my Lord and my Brother Blackburn. The nature of the subject itself, if it may be discussed at all (and I think it undoubtedly may), is such that it cannot be discussed without to a certain extent producing authorities for the assertion that the confessional would be a mischievous thing to be introduced into this kingdom; and therefore it appears to me very much a question of degree, and if the matter were left to the jury it would depend very much on the opinion which the jury might form of that degree in such a publication as the present. Now, I take it for granted that the magistrates themselves were perfectly satisfied that this work went far beyond anything which was necessary or legitimate for the purpose of attacking the confessional. I take it that the finding of the recorder is (as I suppose was the finding of the justices below) that though one half of the book consists of casuistical and controversial questions, and so on, and which may be discussed very well without detriment to public morals, yet that the other half consists of quotations which are detrimental to public morals. On looking at this book myself, I cannot question the finding either of the recorder or of the justices. It does appear to me that there is a great deal here which there cannot be any necessity for in any legitimate argument on the confessional and the like, and agreeing in that view, I certainly am not in a condition to dissent from my Lord and my Brother Blackburn, and I know my Brother Lush agrees entirely with their opinion. Therefore, with the expression of hesitation I have mentioned, I agree in the result at which they have arrived.

Lush, J.[edit]

I agree entirely in the result at which the rest of the Court have arrived, and I adopt the arguments and the reasonings of my Lord Chief Justice and my Brother Blackburn.

References[edit]

  1. 20 & 21 Vict. c. 83, "An act for more effectually preventing the sale of obscene books, pictures, prints, and other articles," after reciting "that it is expedient to give additional powers for the suppression of the trade in obscene books, prints, drawings, and other obscene articles." Section 1. It shall be lawful for any metropolitan police magistrate or other stipendiary magistrate, or for any two justices, upon complaint made before them upon oath that the complainant has reason to believe, that any obscene books, &c. are kept in any house, &c., for the purposes of sale or distribution, exhibition for the 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 justice that the belief of the said complainant is well founded, and upon such justice 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 by virtue of the said warrant, to appear within seven days before such police stipendiary magistrate or any two justices 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 justices, and they are hereby required, to order the articles so seized, except such of them as 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 [s. 4] be given, and such articles shall be in the mean time 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." By s. 4, an appeal is given to the next quarter sessions to any one aggrieved by the determination of justices.
  2. A copy accompanied and was made part of the case. The authors from which the obscene parts of the pamphlet were taken were Peter Dens, Liguori, Delahogue de Pitentia, Bailly, and Cabassutius - chiefly the first two. In the preface, after alluding to the different authors quoted, and shewing that they were held of great authority in the Roman Catholic Church, the compiler proceeds: "Such, then, is the theology, and such the morals which, by granting 30,000l. a-year to Maynooth, we assist in propagating." ... "In the latter part of the pamphlet I have given a few extracts without abridgment, to shew into what minute and disgusting details these holy men have entered. This alone has been my object, and not the filling of the work with obscenity."
  3. 20 St. Tr. at p. 919; 5 Burr. at pp. 2666-7.
  4. 2 Camp. at p. 404.
  5. 3 T. R. 430, n.
  6. 14 St. Tr. at p. 1125.
  7. 7 T. R. 509, 514.
  8. Leigh and Cave, 44, 54; 30 L. J. (M.C.) 170, 173.
  9. 2 Mood. & Rob. 72.
  10. 8 C. & P. 136.
  11. 13 C. B. (N.S.) 62, 68.
  12. Probably Authoris pro se defensio contra Alexandrum Morum.
  13. Lives of the English Poets.
  14. Jac. 474, n.
  15. 2 Mod. St. Tr. by Townsend, at p. 388.
  16. 2 Lewin's C. C. at p. 254.
  17. "There never was a single instance, from the Saxon times down to our own, in which a man was punished for erroneous opinions concerning rites or modes of worship, but upon some positive law. The common law of England, which is only common reason or usage, knows of no prosecution for mere opinions. For atheism, blasphemy, and reviling the Christian religion there have been instances of persons prosecuted and punished upon the common law; but bare nonconformity is no sin by the common law." - Lives of the Chief Justices, vol. ii. pp. 512-14. Life of
  18. 4 M. & S. 73.
  19. 4 T. R. at p. 127.
  20. 3 Br. Parl. C. 465
  21. 5 Burr. at p. 2667.
  22. 6 East, at p. 473.
  23. 3 M. & S. 11, 15.
  24. 2 Lewin's C. C. at p. 255.
  25. 2 Strange, 788.
  26. Fort. 98, 100.
  27. 2 Mod. S. Tr. 356.
  28. 2 Mod. S. Tr. 356.
  29. 3 M. & S. at p. 15.
  30. 3 M. & S. 11.
  31. 4 M. & S. 73.
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