Actors have been prosecuted for performing obscene plays. The obscene words must be set out in the indictment verbatim. Bradlaugh & Besant v. The Queen (C. A.), 3 Q. B. D. 607; 48 L. J. (M. C.) 5; 26 W. R. 410; 38 L. T. 118; 14 Cox, C. C. 68. 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. R. v. Carlile, 1 Cox, C. C. 229. 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 taken 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., 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, 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 magistrate; stipendiary magistrate, or any two justices, having jurisdiction over such place. The magistrate or justices must be satisfied: (i.) That such belief is well founded: and for that purpose the complainant must also state on oath that at least one such book or picture has in fact been sold or exhibited for gain in such place. (ii.) That such book or picture is so obscene that its publication would be a misdemeanour. (iii.) That such publication would be a misdemeanour proper to be prosecuted as such. Thereupon the magistrate or justices issue a special warrant authorizing their officer to search for and seize all such books and pictures, and bring them into Court; and then a summons is issued calling upon the occupier of the place to appear and show cause why such books and pictures should not be destroyed. Either the owner, or any other person claiming to be the owner, of such books and pictures may appear: but if no one appears, or if in spite of appearance the justices are still satisfied that the books and pictures, or any of them, are of such a character that their publication would be a misdemeanour proper to be prosecuted, they must order them to be destroyed; if not so satisfied, they must order them to be restored to the occupier of the place in which they were seized. The order for the destruction of such books must state, not only that the magistrate is satisfied that the books are obscene, but also that he is satisfied that the publication of them would be a misdemeanour, and proper to be prosecuted as such else such order will be bad on the face of it, as not showing that the magistrate had jurisdiction to make it, and a certiorari will be granted, in spite of the 2 & 3 Vict. c. 71, s. 49, to bring it up and quash it. (Ex parte Bradlaugh, 3 Q. B. D. 509; 47 L. J. M. C. 105; 26 W. R. 758; 38 L. T. 680.) Any person aggrieved by the determination of the justices may appeal to Quarter Sessions by giving notice in writing of such appeal, and of the grounds thereof, and entering into a recognizance, within seven days after such determination. Hence the books and pictures ordered to be destroyed will only be impounded during such seven days; on the eighth day, if no notice of appeal be given, they will be destroyed. If the appeal be dismissed, or not prosecuted, the Court of Quarter Sessions may order the books and pictures to be destroyed. (See the Act in extenso in Appendix D., post, p. 722.) The death of the complainant after the issuing of the summons will not cause the proceedings to lapse. (R. v. Truelove, 5 Q. B. D. 336; 49 L. J. M. C. 57; 28 W. R. 413; 42 L. T. 250; 14 Cox, C. C. 408.) If the work be in itself obscene, its publication is an indictable misdemeanour, and the work may be seized under this Act, however innocent may be the motive of the publisher. (R. v. Hicklin, L. R. 3 Q. B. 371; 37 L. J. M. C. 89; 16 W. R. 801; 18 L. T. 398; 11 Cox, C. C. 19.) If any point of law arises under this Act, the magistrates or justices may state a case for the opinion of a Superior Court, under the 20 & 21 Vict. c. 43, irrespective of the power of appeal given by sect. 4. That the libel is an accurate report of a judicial proceeding is no defence, if it contain matter of an obscene and demoralizing character. (Steele v. Brannan, L. R. 7 C. P. 261; 41 L. J. M. C. 85; 20 W. R. 607; 26 L. T. 509.) Any one who openly exposes or exhibits any indecent exhibition or obscene prints or pictures in any street, road, public place or highway, or in any window or other part of any house situate in any street, road, public place or highway, shall be deemed a rogue and vagabond, and punished on summary conviction. (5 Geo. IV. c. 83, s. 4, as explained by the 1 & 2 Vict. c. 38, s. 2. See post, pp. 713, 714.) The 3 Geo. IV. c. The 3 Geo. IV. c. 40, s. 3, is repealed. By the 33 & 34 Vict. c. 79, s. 20, the postmaster-general may prevent the delivery by post of any obscene or indecent prints, photographs, or books. Illustrations. The Protestant Electoral Union published a book, called "The Confessional Unmasked," intended to expose the abuses of the Roman Catholic discipline, and to promote the spread of the Protestant religion. But however praiseworthy such a motive may be thought, many passages in the book were necessarily obscene, and it was seized and condemned as an obscene libel. R. v. Hicklin, L. R. 3 Q. B. 360; 37 L. J. M. C. 89; 16 W. R. 801; 18 L. T. 395; 11 Cox, C. C. 19. The Protestant Electoral Union thereupon issued an expurgated edition of "The Confessional Unmasked," with some new matter. For selling this George Mackey was tried at the Winchester Quarter Sessions on October 19th, 1870, when the jury, being unable to agree as to the obscenity of the book, were discharged without giving any verdict. The Union thereupon published "A Report of the Trial of George Mackey," in which they set out the full text of the second edition of 66 The Confessional Unmasked;" although it had not been read in open Court, but only taken as read, and certain passages in it referred to. A police magistrate thereupon ordered all copies of this "Report of the Trial of George Mackey" to be seized and destroyed as obscene books. Held, that this decision was correct. Steele v. Brannan, L. R. 7 C. P. 261; 47 L. J. M. C. 85; 20 W. R. 607; 26 L. T. 509. CHAPTER XVIII. SEDITIOUS WORDS. SEDITIOUS words may be defined generally in the words of 60 Geo. III. & 1 Geo. IV. c. 8, s. 1, as any words which tend "to bring into hatred or contempt the person of his Majesty, his heirs or successors, or the Regent, or the government and constitution of the United Kingdom as by law established, or either House of Parliament, or to excite his Majesty's subjects to attempt the alteration of any matter in Church or State as by law established, otherwise than by lawful means." Seditious words may in some special cases amount to Treason or to Treason-felony. This chapter will, therefore, be divided into I.-Treasonable Words. (i.) Words merely spoken. (ii.) Words written or printed but not published. (iii.) Words written or printed and published. II.-Seditious Words. (i.) Words defamatory of the Sovereign himself. Government. (iii.) Words defamatory of the Constitution and of our Laws generally. |