CHAP. XXV. punishable as a libel. In Rex v. John Wilkes (e), an information was granted against him for printing and publishing an obscene and impious libel, intituled, "An Essay on Woman." 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 (f) of a public nature. Nature of the Indecent letter to a woman, soliciting her chastity. Indecent Ex hibition and Performance. Indecent bathing. Where the defendant wrote and sent to a respectable girl, a letter containing a proposal that she should surrender her chastity to him for a sum of money: upon an indictment charging the defendant with the publication of a false and defamatory libel, (after verdict of guilty) the conviction was sustained and the court held, that the publication of such a letter might, under the circumstances of the girl's position and character, constitute a defamatory libel, such as would reasonably or probably tend to provoke a breach of the peace (g). And where two travelling showmen, pursuing their calling on the Epsom Downs during the summer races, kept a booth or tent, into which they invited persons to pay and enter for the purpose of witnessing an indecent exhibition and performance by a naked man and woman: this was held to be a misdemeanour at Common Law, and indictable as such (h). So also it is an indictable offence to undress on the beach and bathe in the sea near inhabited houses, from which the naked person may be distinctly seen; and this too, although the houses may have been recently erected; and though previously it may have been usual for men to bathe in considerable numbers at the place in question (i); and it matters not what the intention may have been, the necessary tendency of such conduct being outrageous to decency, and corruptive of the public morals. And accordingly it is no defence to an indictment for indecent exposure, by bathing in the sea near a public footway, that there has been as long as living memory extends, a usage so to bathe at the place (k). The same principle extends to every species of indecent representation, whether by writing, printing, picture, or other manner of exposure; or that is openly or notoriously lewd or contrary to public morality. In short, whatever outrages public decency, and is injurious to public morals, and done (e) 4 Burr. 2527. (f) Sid. 168; Str. 790. (g) The Queen v. Adams, 22 Q. B. D. 66; 58 L. J. M. C. 1. (h) Reg. v. Saunders and another, 45 L. J. M. C. 11. (i) Rex v. Crunden, 2 Camp. 89. (k) Reg. v. Reed and others, 12 Cox, C. C. 1, per Cockburn, L.C.J. in contempt of the laws of decency, is indictable as a mis- CHAP. XXV. demeanour (1). And the principle of the cases upon the subject of immoral publications appears to comprehend oral communications, when publicly made before an assembly of persons; if the nature of the communication is such that it tends to produce immorality (m). for sale, &c., By 14 & 15 Vict. c. 100, s. 29, whenever any person shall be Statute as to convicted of any public and indecent exposure of the person, for indecency punishment or any public selling or exposing for public sale, or to public and exposing view, of any obscene book, print, picture, or other indecent indecent books, exhibition; the offender may be "imprisoned for any term prints, &c. now warranted by law, and also to be kept to hard labour during the whole or any part of such term of imprisonment." other Articles, Summary powers are given, by statute (n), to any metro- Sale, &c., of Obscene Books, politan or other stipendiary magistrate, or to any two justices Pictures, of the peace, upon complaint made before them, upon oath, Prints, and that the complainant has reason to believe, that obscene books, prohibited. papers, writings, prints, pictures, &c., 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, &c., to give authority by special warrant to any constable or police officer Power to to enter any such house, &c., and to search for, and seize all search for any such books, &c., and to carry the same before a magistrate or justice, who shall thereupon issue a summons calling upon the occupier to appear to show cause why the articles so seized Order for should not be destroyed; and to order the articles so seized to destruction of. be destroyed. such. of Order for An order for the destruction, under the above section, of Requirements obscene books must contain an adjudication by the magis- destruction.. trate-1. That the books are obscene; and 2. That the books are of such a character and description that the publication of them would be a misdemeanour, and proper to be prosecuted as such. And therefore, where an order contained an adjudica (1 Hawk. P. C. c. 5, s. 4; 4 Blac. Com. 65 (n); 1 East, P. C. cap. 1, s. 1; R. v. Rourerard, cited in R. v. Webb, 1 Den. C. C. 338, 344; 2 C. & K. 933; R. v. Watson, 2 Cox, C. C. 376; R. v. Webb, 1 Den. C. C. 338; 18 L. J. M. C. 39; R. v. Elliot, 1 L. & C. 103; R. v. Holmes, 1 Dears. C. C. 207. (m) Dugdale v. Reg., 1 Dears. C. C. 61 (on writ of error in the Court of Queen's Bench). (n) 20 & 21 Vict. cap. 83, s. 1. See this Statute stated at length in the Appendix. CHAP. XXV. tion only that the books were obscene, it was held bad on Death of complainant creates no lapse in proceedings. A Case may be stated for Superior Court. Where inten tion is to attack the certiorari (o). The proceedings for an offence under this statute being quasi criminal in their nature, do not lapse by the death of the complainant. And, therefore, where an order had been made by a magistrate for the destruction of certain obscene books found upon the premises of the defendant, and pending an appeal against the order to Quarter Sessions, the complainant died; it was held, that the death of the complainant created no lapse, and that the order appealed against having been affirmed, it must be enforced in due course (p). The power of appeal given by the statute does not supersede the jurisdiction of a magistrate to state a case for the opinion of a Superior Court, on a point of law arising under the statute (q). Although the intention be, not to injure public morality, but to attack the Roman Catholic religion and practices, the sale Roman Catholic of obscene works with that view is, nevertheless, an offence religion. within the statute (r). A Report of a out an Obscene Pamphlet is an Obscene Book, within the Statute. Shortly after the decision above stated, the same society (the Trial, setting Protestant Electoral Union) published a new edition of the pamphlet, in which some of the most obscene passages were omitted; but there remained abundant matter of a disgusting and offensive nature, which rendered the book not distinguishable in principle from what was before the court in the former case: and one Mackey was tried at the Court of Quarter Sessions at Winchester, for selling copies of the new edition, but the jury being unable to agree, were discharged without giving a verdict: a report of the trial was afterwards published, in which the new edition of "The Confessional Unmasked" was set out at full length; although at the trial it was not read aloud, but taken as read, and passages in it only, were referred to. In other respects the report was, substantially, a correct one of the trial and proceedings. A number of copies of this report having been seized at the shop of the appellant (where the same were sold and exposed for sale) were ordered by a police magistrate to be destroyed as obscene books within the meaning of the statute (s). (0) Er parte Bradlaugh, 3 Q. B. D. 509; 47 L. J. M. C. 105. (p) The Queen v. Truelove, 5 Q. B. D. 336; 49 L. J. M. C. 57. (q) Steele v. Brannan, 41 L. J. M. C. 85; L. R. 7 C. P. 261. (r) R. v. Hicklin and another, 37 L. J. M. C. 89; L. R. 3 Q. B. 371; 11 Cox, C. C. 44. (8) Steele v. Brannan, L. R. 7 C. P. 261; 41 L. J. M. C. 85; and ride 51 & 52 Vict. cap. 64, s. 3. obscene, or by post. By the Post Office Act, 1870, the Postmaster-General is CHAP. XXV. empowered from time to time, with the approval of the Prohibition Treasury, to make regulations for preventing the sending or against sending delivery by post of indecent or obscene prints, paintings, libellous, photographs, lithographs, engravings, books, or cards, or of Prints, &c., other indecent or obscene articles, or of letters, newspapers, supplements, publications, packets, or post-cards, having thereon, or on the covers thereof, any words, marks, or designs of an indecent, obscene, libellous, or grossly offensive character (t). Obscene Books same by post. The defendant was editor of a newspaper and inserted Advertising therein advertisements, which though not obscene, related to and Photos, the sale of obscene books and photographs: the advertisers and sending were foreigners resident abroad: a police officer wrote to the addresses given in the advertisements, and received in reply obscene books and photographs. The defendant was tried and convicted on an indictment charging him with causing and procuring obscene books and photographs to be sold and published, and to be sent by post in contravention of the Post Office (Protection) Act, 1884, s. 4, and the Court upheld and affirmed the conviction (u). By the Customs Laws Consolidation Act, the importation Against importation of of any indecent or obscene prints, paintings, photographs, any such. books, cards, lithographic or other engravings, or any other indecent or obscene articles, is prohibited, and such may be seized, and will be forfeited and destroyed (x). Advertise By a recent statute, the affixing to any house, wall, hoard- Indecent ing, &c., so as to be visible to any person passing along any ments. street, highway, or footpath, or otherwise exhibiting to public view, of any picture, or printed or written matter, of an indecent or obscene nature, is made a summary offence, with liability to a penalty of 40s., or a month's imprisonment, with or without hard labour (y). (t) 33 & 34 Vict. cap. 79, s. 20; and see the Post Office Protection Act, 1884, 47 & 48 Vict. cap. 76, s. 4. (u) The King v. De Marny, 1 K. B. (1907), 388, C. C. R. (x) 39 & 40 Vict. cap. 36, s. 42. F.S. B B 370 CHAP. XXVI. Publications against the Constitution. CHAPTER XXVI. SEDITIOUS LIBELS, AND DEFAMATIONS OF THE Publications against the Constitution. Seditious conspiracy to dissolve the Seditious Libel a question for the jury. Libels against the King and his When words or writings amount to Libels on the Government. Rulings of the judges as to in recent cases. ANY member of the State has a right to suggest improvements in the constitution, and to point out what he conceives to be defects; and though he be mistaken in his views, yet he does not offend criminally, unless he be actuated by an intention to work mischief, evidenced by the licentious and insulting manner in which he treats of the established constitution and ordinances of the country. These, so long as they exist, ought to be secured from contumely and insult, lest men's minds should be excited on the one hand to effect a hasty and illjudged demolition of the political fabric, or on the other should be provoked to acts of violence in defence of a political establishment which they hold in reverence. "Every man may publish, at his discretion, his opinions concerning forms and systems of government; if they be wise and enlightening the world will gain by them,—if they be weak and absurd, they will be laughed at and forgotten; -if they be bona fide they cannot be criminal, however erroneous" (a). The State and Constitution being the common inheritance, every attack made upon them, which affects their permanence and security, is in a degree an attack upon every individual, and concerns the rights of all (b). Every subject of the King has an undoubted right to speak, to write, and to petition, within certain limits; but he must not, by reckless and seditious language, endanger the fundamentals of the constitution; he must not shake what is rooted, nor bring again into discussion, with a view of disturbing, (a) Lord Loughborough, in the (b) Holt, L. L. cap. 5. debate upon the Libel Bill, A.D. 1792. |