Illustrations. The following are instances of public places: 1 The inside of an omnibus. 2 The roof of a house visible from the back windows of several houses. 3 The inside of a urinal open to the public, and by the side of a footpath in Hyde Park. 4 The inside of a booth on Epsom racecourse, which the public were invited to enter. 5 A place out of sight of the public footway where people had no legal right to go, but did habitually go without interference. ARTICLE 191. OBSCENE PUBLICATIONS. 6 Every one commits a misdemeanor who without justifica tion, (a.) publicly sells, or exposes for public sale or to public view, any obscene book, print, picture, or other indecent exhibition; or any publication recommending sexual immorality, even if the recommendation is made in good faith and for what the publisher considers to be the public good; or (b.) publicly exhibits any disgusting object. Any person convicted of the offence defined in clause (a.) may be sentenced to hard labour. 1 R. v. Holmes, 1853, D. & P., 207. 6 Note V.; Strange, 790; and see 20 & 21 Vict. c. 83, s. 1; 14 & 15 Vict. c. 100, s. 29; Starkie (by Folkard), 630–637. Draft Code, s. 147. 7 These words are added in reference to the case of R. v. Bradlaugh, tried before Cockburn, C.J., 18 June, 1877. I have not seen any report of the trial itself. Proceedings in error on the ground that the indictment was defective were taken in 1878 and are reported in Bradlaugh v. R., 1878, 3 Q. B. D. 607. The jury found that the work prosecuted called the "Fruits of Philosophy" was published in good faith for the public good, and that it recommended immoral practices. It appeared in evidence that it was not obscene in the sense of being calculated or intended to excite passion. (SUBMITTED.)—A person is justified in exhibiting disgusting objects, or publishing obscene books, papers, writings, prints, pictures, drawings, or other representations, if their exhibition or publication is for the public good, as being necessary or advantageous to religion or morality, to the administration of justice, the pursuit of science, literature, or art, or other objects of general interest; but the justification ceases if the publication is made in such a manner, to such an extent, or under such circumstances, as to exceed what the public good requires in regard to the particular matter published. 1 Illustrations. (1.) A exhibits for money, to all comers, an unnatural and monstrous birth. A commits a misdemeanor. B exhibits a similar object to students of medicine only. B does not commit a misdemeanor. (2.) 2 A, a bookseller, publishes the work of a casuist, which contains amongst other things obscene matter. The work is 1 Harring v. Walrond, 1681, 1 Russ. Cr. 436. 2 The second paragraph of this illustration is based upon R. v. Hicklin, 1868, L. R. 3 Q. B. 360; and see Steele v. Brannan, 1872, L. R. 7 C. P. 261. The first part is merely my suggestion as to what ought to be held to be the law if the question should arise, but the point cannot be called clear. Keating, J., referred in passing to the question in Steele v. Brannan, at pp. 269, 270, but expressed no opinion upon it. I confine this article to obscenity because I have found no authority for the proposition that the publication of a work immoral in the wider sense of the word is an offence. A man might with perfect decency of expression, and in complete good faith, maintain doctrines as to marriage, the relation of the sexes, the obligation of truthfulness, the nature and limits of the rights of property, &c., which would be regarded as highly immoral by most people, and yet (I think) commit no crime. Obscenity and immorality in this wide sense are entirely distinct from each other. The language used in reference to some of the cases might throw doubt on this, but I do not think any instance can be given of the punishment of a decent and bonâ fide expression of opinions commonly regarded as immoral. I leave this note unaltered, but since it was written the case cited above of R. v. Bradlaugh may be considered to have gone some way towards establishing a different principle, and to have invested juries to a certain extent with the powers of ex post facto censors of the press so far as such publications on the relations of the sexes are concerned. I think that juries ought to exercise such a power with the greatest caution when a man writes in good faith on a subject of great interest and open to much difference of opinion, and when no indecency of language is used, except such as is necessary to make the matter treated of intelligible. published in Latin, and appears from the circumstances of its publication to be intended for bona fide students of casuistry only. A has not committed a misdemeanor. B extracts the obscene matter from the work so published, translates it into English, and sells it as a pamphlet about the streets for the purpose of throwing odium upon casuists. committed a misdemeanor. B has ARTICLE 191A. SENDING INDECENT LETTERS. 1 Every one is guilty of a misdemeanor and is liable to imprisonment with hard labour for twelve months who sends or attempts to send a postal packet which (a.) incloses any indecent or obscene print, painting, photograph, lithograph, engraving, book or card, or any obscene article similar to the above or not; or (b.) has on such packet or on the cover thereof any words, marks, or designs of an indecent, obscene or grossly offensive character. ARTICLE 192. PROCURING THE MARRIAGE OF PARENT OF A BASTARD. 2 Every officer of a union, parish or place is guilty of a misdemeanor who endeavours to induce any person to contract a marriage by a threat or promise respecting any application to be made or any order to be enforced with respect to the maintenance of any bastard child. 4 ARTICLE 193. 3 UNLAWFULLY DEFILING WOMEN. Every one commits a misdemeanor and is liable upon conviction thereof to two years imprisonment with hard labour who, 1 47 & 48 Vict. c. 76, s. 4. 27 & 8 Vict. c. 101, s. 8. 3 48 & 49 Vict. c. 69. (a.), (b.), (c.), (d.) represent s. 2; (e.), (f.) and (g.) s. 3. Draft Code, s. 148. (a.) procures or attempts to procure any girl or woman under twenty-one years of age, not being a common prostitute, or of known immoral character, to have unlawful carnal connexion, either within or without the Queen's dominions, with any other person or persons; or (b.) procures or attempts to procure any woman or girl to become, either within or without the Queen's dominions, a common prostitute; or (c.) procures or attempts to procure any woman or girl to leave the United Kingdom, with intent that she may become an inmate of a brothel elsewhere; or (d.) procures or attempts to procure any woman or girl to leave her usual place of abode in the United Kingdom (such place not being a brothel), with intent that she may, for the purposes of prostitution, become an inmate of a brothel within or without the Queen's dominions; or (e) by threats or intimidation procures or attempts to procure any woman or girl to have any unlawful carnal connexion, either within or without the Queen's dominions; or (f) by false pretences or false representations procures any woman or girl, not being a common prostitute or of known immoral character, to have any unlawful carnal connexion, either within or without the Queen's dominions; or (g.) applies, administers to, or causes to be taken by any woman or girl any drug, matter, or thing, with intent to stupefy or overpower so as thereby to enable any person to have unlawful carnal connexion with such woman or girl. ARTICLE 194. HOUSEHOLDERS PERMITTING DEFILEMENT OF GIRLS ON THEIR PREMISES. 1 Every person, being the owner or occupier of any premises, or having, or acting or assisting in, the management or control 1 48 & 49 Vict. c. 69, s. 6. thereof, is guilty of felony, and is liable to penal servitude for life, who induces or knowingly suffers any girl under the age of thirteen years to resort to or be in or upon such premises for the purpose of being unlawfully and carnally known by any man, whether such carnal knowledge is intended to be with any particular man or generally.1 2 Every such person as aforesaid who commits any such offence as aforesaid with respect to any girl of or above the age of thirteen and under the age of sixteen years, is guilty of a misdemeanor, and being convicted thereof is liable to be imprisoned for two years with hard labour. It is a sufficient defence to any charge under this article if it is made to appear to the court or jury before whom the charge is brought that the person so charged had reasonable cause to believe that the girl was of or above the age of sixteen years. ARTICLE 195. CONSPIRACY TO DEFILE. 3 Every one commits the misdemeanor of conspiracy who agrees with any other person to induce any woman to commit adultery or fornication, or to take any woman from the lawful custody of her parents, in order to marry her to any person without their consent; (SUBMITTED.) Provided, that an agreement between a man and a woman to commit fornication or adultery, or that the woman shall leave the lawful custody of her parents without their consent, in order to marry the man, is not a conspiracy. 1 A father who allows his daughter living with him to act as a prostitute in his house is within this provision. R. v. Webster, 1885, 16 Q. B. D. 134. 2 R. v. Lord Grey of Werk, 1682, 9 St. Tr. 127; 1 East, P. C. 460 ; R. v. Mears, 1851, 2 Den. 79; R. v. Delaval, 1762, 3 Burr. 434. Draft Code, s. 149. 3 Ibid. |