however erroneous, are maintained." Baron Parke (at p. 565) agreed "that the preaching of doctrines called Unitarian is not on that account illegal at common law, and all the statutory penalties have been repealed." Chief Justice Tindal said (at p. 578):-"I consider that since the statute 53 Geo. III. c. 160, all distinction between Unitarians and other Protestant Dissenters as to this purpose is by law taken away."

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These opinions are, of course, of the highest authority, and have been treated as settling the law in all subsequent cases in which they have been cited. Thus in 1846 in Shrewsbury v. Hornby (5 Hare's Reports, 406), a bequest to the treasurer of the Unitarian Association to assist Unitarian congregations and maintain a Unitarian missionary, was upheld. In Re Barnett (29 L. J. Ch. 871), a legacy to the minister of Cross Street Chapel, Manchester, to be applied towards the support of the Unitarians," was also upheld. In Scotland, Lord Jeffrey, in an eloquent judgment, gave a similar decision. (General Assembly of General Baptist Churches v. Taylor, 3 Dunlop & Bell, 2nd Series, Cases in the Court of Session, p. 1030.) It was in accordance with these judgments that it was held in February, 1874, in a Scotch Court that the Rev. Page Hopps's Life of Jesus, a Unitarian book written in a reverent spirit, could not be pirated with impunity by an orthodox missionary, who sought to justify his piracy by the plea that it was a blasphemous publication and therefore incapable of copyright. (See Copinger on Copyright, 3rd edition, p. 94.) It cannot therefore be maintained that Unitarianism is, or ever was, blasphemous at common law, and it follows that the dicta in Woolston's Case are unreliable, and cannot be regarded in the present day as good law without considerable qualification. And see the recital in the Dissenters' Chapels' Act, 7 & 8 Vict. c. 45.

Again, trusts and legacies to promote the spread of the Jewish religion clearly" strike at the very root of Christianity;" yet they are always enforced in our law courts. Formerly, no doubt, it was different. In 1754 Lord Hardwicke, in the case of Da Costa v. De Pas (Ambler, 228; 2 Swanston, 487, n.), decided on the express authority of R. v. Taylor and R. v. Woolston, that a bequest contained in a Jewish will of 1,200l. to found a "Jesuba or assembly for reading the law and instructing people in our holy religion," was void, as being "in contradiction to the Christian religion, which is part of the law of the land." But this is not law now. By the statute 9 & 10 Vict. c. 59, Jews are now placed on the same footing as Protestant Dissenters, and all bequests to

promote the propagation of Judaism are now valid. And, indeed, trusts and legacies in favour of Jewish synagogues were valid before this statute, a distinction being taken between an act of worship and the inculcation of anti-Christian doctrine. (Per Abbott, J., in Lazarus v. Simmonds, (1818) 3 Mer. 393, n.)

There is only one modern equity case in which either the letter or the spirit of Woolston's Case has been followed, and that is Briggs v. Hartley, (1850) 19 L. J. Ch. 416. There a testator left a legacy for the "best essay on the subject of natural theology, treating it as a science, and demonstrating the truth, harmony, and infallibility of the evidence on which it is founded, and the perfect accordance of such evidence with reason; also demonstrating the adequacy and sufficiency of natural theology when so treated and taught as a science to constitute a true, perfect, and philosophical system of universal religion (analogous to other universal systems of science, such as astronomy, &c.), founded on immutable facts and the works of creation, and beautifully addressed to man's reason and nature, and tending, as other sciences do, but in a higher degree, to improve and elevate his nature, and to render him a wise, happy, and exalted being." And this was the judgment of Vice-Chancellor Shadwell :-"I cannot conceive that the bequest in the testator's will is at all consistent with Christianity, and therefore it must fail." The editors of Jarman on Wills, 5th edition, p. 169, say "this case would probably not be followed; no cases were cited in the argument at all." This decision stands alone. In Thornton v. Howe, (1862) 31 Beav. 14, a trust for " printing, publishing, and propagating the sacred writings of the late Joanna Southcote," was held good by Romilly, M.R.; and in Pare v. Clegg, (1861) 29 Beav. 589, the same learned judge held that there was nothing illegal or immoral in a society whose chief object was to propagate the visionary doctrines of the late Robert Owen.

It must, of course, be admitted that the law laid down by Lord Coleridge in R. v. Ramsey and Foote cannot be reconciled with every one of the earlier decisions. It is not to my mind inconsistent with R. v. Taylor, but it is certainly opposed to the dicta, if not to the decision, in R. v. Woolston. But Lord Coleridge was not bound to follow these dicta. It is in no way the duty of a judge to accept all the dicta of his predecessors without regard to the circumstances in which they were uttered and apply them literally in a different age and in other circumstances. Still less is this the duty of a judge when those dicta are avowedly based on considerations of public policy which are now admitted to be

erroneous. Again, it must be admitted that Lord Coleridge s view of the law is entirely opposed to both the dicta and the decision in the civil case, Cowan v. Milbourn, ante, p. 463. And since the summing-up was delivered his view has not been universally accepted by the Bench. Huddleston, B., was certainly disposed to dissent from it in Pankhurst v. Thompson, (1886) 3 Times L. R. 199 ; but the case was settled, so that it was unnecessary to deliver any judgment. And see Pankhurst v. Hamilton, (1887) 3 Times L. R. 500. And Mr. Justice Stephen, in his "History of the Criminal Law of England" (vol. ii. p. 474, first edition, 1883), undoubtedly inclines to the view that "the true legal doctrine upon the subject is that blasphemy consists in the character of the matter published, and not in the manner in which it is stated;" though he admits that "there is no doubt some authority in favour of a different view of the law." But in a former work, "The Digest of Criminal Law" (in the first edition (1877) at p. 97; in the latest edition (1894) at p. 125), Mr. Justice Stephen placed his present definition of the law and that given by Lord Coleridge in parallel columns as equally good law, adding in a note, "There is authority for each of these views; most of the cases are old, and I do not think that, in fact, any one has been convicted of blasphemy in modern times for a mere decent expression of disbelief in Christianity." And it is now, I think, generally conceded that the law laid down in Shore v. Wilson and R. v. Ramsey and Foote is "the better opinion" in point of law, and I have therefore stated it at the beginning of this chapter as the existing law of blasphemy.

I feel sure, moreover, that it is the only law on the subject which it is possible to enforce in the present day-the only law which is at all consonant with our modern ideas of universal toleration and religious equality. It does not place any barrier in the way of the freest inquiry or of the largest intellectual or spiritual progress. It permits the frankest avowal and the warmest advocacy of all opinions, however heretical, which the writer or speaker sincerely entertains. It only interferes where our religious feelings are insulted and outraged by wanton and unnecessary profanity and there surely it is right that some provision should exist to prevent such an offence to the highest and noblest instincts. of our nature.

CHAPTER XVIII.

OBSCENE WORDS.

IT is a misdemeanour punishable on indictment or information to publish obscene and immoral books and pictures for such an act is destructive of the public morality and welfare, though it may not reflect on any particular person, and as such it is punishable at common law. (R. v. Curl, (1727) 2 Str. 788; 1 Barnard. 29, ante, p. 463.)

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." (Per Cockburn, C.J., in R. v. Hicklin, (1868) L. R. 3 Q. B. 371; 37 L. J. M. C. 89; 16 W. R. 801; 18 L. T. 395; 11 Cox, C. C. 19.)

Similarly it is a crime to speak vicious and immoral words; provided they be uttered publicly in the hearing of many persons, for else there is no detriment to the general public.

Obscene words and libels are within the jurisdiction of Courts of Quarter Sessions; not being excepted by the 5 & 6 Vict. c. 38.

The punishment may be either fine or imprisonment for a term of any length, and either with or without hard labour. (14 & 15 Vict. c. 100, s. 29.)

It is no longer necessary to set out in the indictment the obscene passages in full. It is "sufficient to deposit the book, newspaper, or other documents containing the alleged libel with the indictment, or other judicial proceeding, together with particulars showing precisely, by reference to pages, columns, and lines, in

what part of the book, newspaper, or other document, the alleged libel is to be found, and such particulars shall be deemed to form part of the record." (Law of Libel Amendment Act, 1888, s. 7.) The decision in Bradlaugh and Besant v. The Queen ((1878) 3 Q. B. D. 607; 48 L. J. M. C. 5; 26 W. R. 410; 38 L. T. 118; 14 Cox, C. C. 68) is so far overruled.

Illustrations.

Wilkes was fined 5007. and imprisoned for a year for printing and publishing "An Essay on Woman."

R. v. John Wilkes, (1768) 4 Burr. 2527; 2 Wils. 151; Dig. L. L. 69. Actors have been prosecuted for performing obscene plays.

Tremayne's Entries, 209, 213, 214, 215; (1727) 2 Str. 790.

An information was granted against the printer of a newspaper called “The Daily Advertiser, Oracle and True Briton," for publishing an advertisement by a young married woman offering to become anybody's mistress on certain pecuniary terms.

R. v. Stuart, 3 Chit. Crim. L. 887.

Where an officer of the Society for the Suppression of Vice purposely went to the prisoner's shop and asked to see some indecent prints, and was shown several by the prisoner in a back room, of which he bought two in order to found a prosecution thereon, this was held a sufficient publication to sustain the charge.

The identical print or picture sold or exhibited by the defendant must be produced at the trial: it is not enough for a witness to swear that the one produced is similar to the one exhibited to him by the defendant.

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R. v. Rosenstein, (1826) 2 C. & P. 414.

Obtaining and procuring" obscene works for the purpose of uttering and selling them is a misdemeanour indictable at common law; for it is an overt act done in pursuance of an unlawful intention. But merely "preserving and keeping them in one's possession" for the same purpose is not indictable; for "there is no act shown to be done which can be considered as the first step in the prosecution of a misdemeanour." (Per Lord Campbell, C.J., in Dugdale v. Reg., (1853) Dears. C. C. 64; 1 E. & B. 425; 22 L. J. M. C. 50; 17 Jur. 546; and per Park, J., in R. v. Rosenstein, (1826) 2 C. & P. 414.)

By the 20 & 21 Vict. c. 83, if any one reasonably believes that any obscene books, or pictures, are kept in any place for the purpose of being sold or exhibited for gain, he may make a complaint on oath before the police