line between works wholly and designedly obscene and those obscene only in portions. The question arose how large or how small a portion of a work must be worthy and moral in its character to make it proper to be promiscuously circulated. The labors of the great masters of art, and the writings of the fathers and masters of poetry and the drama, might readily be brought under a too general and comprehensive definition, and thus works good in themselves, and stanard and elevating in their nature, might be interdicted; while, under a more specific and narrower one, compositions designedly vicious and corrupting in all their tendencies might avoid the injunction of the law.'

35. Again, a work written with the laudable intention of reforming abuses, and to expose errors, may be, from the very nature of the abuses and errors sought to be reformed, liable to the charge of obscenity.

It is indeed a delicate question, and one that jurists, legislators, and sociologists have constantly encountered. The offense is rank, but it would seem as if any attempt to abate it became, almost at the outset, ranker than the offense itself. It is an offense of which the world has not yet learned even to speak, without danger to the very interests it strives to protect.

1 Hill's Case, 2 Str. 790. The defendant, in this case, was indicted for publishing some poems of Lord Rochester's. In 1857, pending the passage of a bill in the English Houseof Lords, relating to obscene productions, Lord Lyndhurst pointed out this difficulty. "The magistrate," said he, "must also be satished that the case is a proper one for a prosecution; so that if indecent passages were 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), and accordingly the words, 'proper to be prosecuted as such' (obscene), were inserted."-Rex v. Hicklin, L. Rep. 32, B. 371.

In a recent case,' the test of obscenity was said to be "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 the sort may fall."

This latter was a case where a pamphlet, called "The Confessional Unmasked; professing to show 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 under the law.

I take it," said Cockburn, Ch. 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 appel

1 Rex v. Hicklin, L. Rep. 32, B. 371; 18 L. T. N. S. 398; 36 L. J. 9; 8 M. C.

lant: Yes, but his purpose was not to deprave the public mind; his purpose was to expose the errors of religion, especially in the matter Be it so. Be it so. The question then simple form: May you commit law, in order that thereby you

the Roman Catholic of the confessional.' presents itself in this an offense against the

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.

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 aud salutary purpose.' The law does not allow that. You must abide by the law, and you 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."

if

36. We apprehend the rule will be in general somewhat as follows: Standard works of great literary value, like the plays of Shakespeare, Jonson, Beaumont and Fletcher, Congreve or Wycherley, the poems of Chaucer, Dryden, or Byron, or the prose fiction of DeFoe, Smollett, or Fielding, manifestly will not be construed to be obscene productions, although, whether designedly, or by the fault, the fashions, and follies of the days when they were composed, all the works of these writers contain passages which are in these times without question, perhaps grossly immoral and obscene. It is not upon such episodes that their immortality rests; such passages are the tares which grow with the wheat, which are to be forgiven for the sake of the sublime, or brilliant, or epigrammatic character of the composition, ascribing them only to the manners of his times and to the humanity of the author. Neither will we prosecute the successful editors and publishers of these works, nor class the works themselves as falling under the interdiction of the law.

37. If, however, an editor or publisher should undertake and publish a volume of selections from the above or like authors, which should contain ex

clusively their obscene passages and nothing else, so that every passage or sentiment of literary or epigrammatic merit which has made those writers famous. should be carefully banished, and only the grossly sensuous or filthy thoughts and sentiments included; such a volume--we think it cannot be doubted-would be clearly an obscene publication. A publication might be even made grossly obscene by culling passages wholly from the sacred scriptures, which passages, standing alone and unrelieved by their natural context, might constitute a work indictable by law.' It might be objected that such a work would harm nobody; but, on the other hand, there might be many persons ignorant enough to suppose that the lofty authority of the source attached itself to garbled extracts isolated therefrom."

38. The circulation of grossly obscene and filthy engravings, prints, cuts, photographs, or pictures. of any kind, is generally prohibited by statute, whether by passing through the mails, or by selling and vending, or exposing or procuring them to be so sold or vended. And even if it were not, we think, undoubtedly, that an authority to check such offenses contra bones mores exists by common law in all the courts of criminal jurisdiction. Undoubtedly no copyright' or other property can exist in such productions, for the law will not protect in one form what it punishes in another.

39. With regard to photographs, prints, or engravings, the of the works old masters, antiques and classical fragments, a more careful discrimination might be necessary. There must be here, as in the case of the stan' Matter of Train, N. Y. General Sessions, 1873.

2 Ibid.

* Du Bois v. Beresford, 2 Camp. 511; 4 Bl. Com. (Steph.) 545; Fores v. Johnes, 4 Esp. 97.