REG. v. HICKLIN AND WOLVERHAMP ΤΟΝ (resps.) The pamphlet consisted of extracts taken from the works of certain theologians, who had written at various times on the doctrines and discipline of the Church of Rome, and particularly on the practice of auricular confession. On one side of the page JUSTICES OF passages were printed in Latin correctly extracted from the original works, and opposite to each extract was placed a free translation in English. The pamphlet also contained a preface, notes and comments condemnatory of the texts and principles laid down by the authors from whom the extracts were taken. About one-half of the pamphlet relates to casuistical and contro- publications. versial questions which are not obscene, but the remainder of the pamphlet is obscene in fact as relating to impure and filthy acts, words, and ideas. The defendant appealed to the quarter sessions, and the Recorder found "that the appellant did not keep or sell the said pamphlets for the sake of gain, nor to prejudice good morals, though the indiscriminate sale and circulation of them is calculated to have that effect; but he kept and sold the pamphlets as a member of the said 'Protestant Electoral Union' to promote the objects of that society, and to expose what he deems to be errors of the Church of Rome, and particularly the immorality of the confessional." The Recorder was of opinion that, under the circumstances, the sale and distribution of the pamphlets would not be a misdemeanor, nor consequently be proper to be prosecuted as such, and accordingly that the possession of them by the appellant was not unlawful within the meaning of the statute. He therefore quashed the order made by the said justices, and directed the pamphlets seized to be returned to the appellant. By sect. 1 of the 20 & 21 Vict. c. 83, it is enacted that "It shall be lawful for . . . any two justices of the peace, upon complaint made before them upon oath that the complainant has reason to believe, and does believe, that any obscene books. are kept in any house. . . . for the purpose of sale or distribution, exhibition for purposes of gain, lending upon hire, or being otherwise published for purposes of gain, which complainant shall also state upon oath that one or more articles of the like character have been sold, distributed, . . . . so as to satisfy such justices that the belief of the said complainant is well founded, and upon such justices being also satisfied that any of such articles so kept for any of the purposes aforesaid are of such a character and description that the publication of them would be a misdemeanor, and proper to be prosecuted as such, to give authority by special warrant to any constable or police officer into such shop with such assistance as may be necessary, to enter in the daytime . and to search for and seize all such books as aforesaid found in such house and to carry all the articles so seized before the justices issuing the said warrant And such justices shall thereupon issue a summons calling upon the occupier of the house. . . . to appear within seven days .... 1868. Obscene REG. v. HICKLIN AND WOLVERHAMP TON (resps.). before such justices in petty sessions for the district, to show cause why the articles so seized should not be destroyed; and if such occupier . . . . shall not appear within the time aforeJUSTICES OF Said, or shall appear, and such justices shall be satisfied that such articles, or any of them, are of the character stated in the warrant, and that such or any of them have been kept for any of the purposes aforesaid, it shall be lawful for the said justices, and he or they are hereby required, to order the articles so seized, except such of them as he or they may consider necessary to be preserved publications. as evidence in some further proceeding, to be destroyed at the expiration of the time hereinafter allowed for lodging an appeal, unless notice of appeal, as hereinafter mentioned, be given, &c." 1868. Obscene Kydd for the appellant.-The order of sessions and the ruling of the Recorder were right. According to the view the Recorder took of the facts, the appellant had not brought himself within the operation of the 1st section of the statute; for to justify the seizure, the books must have been of such a nature as that the publication of them would have been an indictable misdemeanor, and to support such an indictment it must be shown that the party had a criminal intent, which in the present case is negatived by the finding of the Recorder. The question is one entirely of intention, and here that is found to be a proper one. A criminal intent on the part of the publisher must be shown to give the justices jurisdiction under 20 & 21 Vict. c. 83, but that is negatived here by the finding of the Recorder. In Rex v. Woodfall (5 Burr. 2667) Lord Mansfield says, "That where an act in itself indifferent if done with a particular intent becomes criminal, there the intent must be proved and found. But where the act is in itself unlawful, the proof of justification or excuse lies on the defendant, and on failure thereof the law implies a criminal intent." The judges in the House of Lords, in answer to questions put to them on Fox's Libel Bill, said, "The crime consists in publishing a libel; a criminal intention in the writer is no part of the definition of the crime:" (22 St. Tri. 229.) The question of intent is for the jury (Rex v. Lambert, 2 Camp. 404; Rex v. Shebbeare, 3 T. R. 430, n.) In Fowler v. Padgett (7 T. R. 509), it was held that a debtor by leaving his house did not commit an act of bankruptcy though the creditors were delayed, unless there was the intent to delay; and Lord Kenyon said, "It "It is a principle of natural justice and of our law that Actus non facit reum, nisi mens sit rea. The intent and the act must both concur to constitute the crime." The same principle was held to apply in Reg. v. Sleep (L. & C. 44); Reg. v. Dodsworth (2 Moo. & R. 72); and Reg. v. Allday (8 C. & P. 136); Buckmaster v. Reynolds (13 C. B. N. S. 62). The mere use of obscene words, or the occurrence of some obscene passages, does not make the work obscene. Otherwise some of our most standard works would be liable to be suppressed. Milton, in one of his celebrated treatises, justifies, by examples, the use of language suitable to the occasion, though it may be obscene. The principle of expurgation practised by the Church of Rome is condemned in "Hallam's Literature . . REG. v. WOLVERHAMP TON (resps.). 1868. Obscene of Europe," part 2, c. 8, s. 70: "Rome struck a fatal blow HICKLIN AND at literature in the Index Expurgatorius of prohibited ANOTHER, books. The first list of books prohibited by the JUSTICES OF Church was set forth by Paul IV. in 1559. His Index includes all bibles in modern languages, enumerating forty-eight editions, chiefly printed in countries still within the obedience of the Church." If mere obscenity, without reference to the object of the publication, is indictable, Collier's "View of the Immorality of the English Stage" is indictable, though a laudable and successful publications. publication. The same may be said of David Clarkson's works, Bayle's Dictionary, and some of Dryden's poems. Although Savage's poem, "The Progress of a Divine," was considered by many to be obscene, and a criminal information was applied for against him for publishing it, it was argued in his defence that "Obscenity was criminal when it was intended to promote the practice of vice; but that Mr. Savage had only introduced obscene ideas with the view of exposing them to detestation, and of amending the age by showing the deformity of wickedness. This plea was admitted, and Sir Philip Yorke dismissed the information with encomiums on the purity and excellence of Mr. Savage's writings :" (Johnson's "Lives of the Poets.") In Murray v. Benbow (Jac. 474, n.), Lord Eldon refused an injunction to restrain the sale of Lord Byron's poem of "Cain" on the ground of its profanity. The object of the publication is to be looked at, and in this case it was to expose the obscenity and grossness of the Romish confessional. In Starkie on Libel (vol. ii. p. 147, 2nd ed.), in treating of blasphemy as a crime, it is said, "A malicious and mischievous intention, or what is equivalent to such an intention in law, as well as morals, a state of apathy and indifference to the interests of society is in such cases the broad boundary between right and wrong." The animus must be looked at. In Moxon's case (2 Townsend's Mod. St. Tri. 208), Lord Denman, C.J., said, "The purpose of the passage cited from 'Queen Mab,' was, he thought, to cast reproach and insult upon what in Christian minds were the peculiar objects of veneration. It was not, however, sufficient that mere passages of such an offensive character should exist in a work in order to render the publication of it an act of criminality. It must appear that no condemnation of such passages appeared in the context." In Gathercole's case (2 Lew. C. C. 254), Alderson, B., said, “A person may, without being liable to prosecution for it, attack Judaism, Mohammedanism, or even any sect of the Christian religion (except the established religion of the country), and the only reason why the latter is in a different situation from the others is, that it is the form established by law, and is, therefore, a part of the constitution of the country. In like manner, and for the same reason, any general attack on Christianity is the subject of criminal prosecution, because Christianity is the established religion of the country. The defen REG. V. HICKLIN AND WOLVERHAMP TON (resps.). 1868. Obscene dant here has a right to entertain his opinions, to express them, and to discuss the Roman Catholic religion and its institutions, but he has no right to say of any particular body of persons-e.g. JUSTICES OF the inhabitants of Scorton nunnery-that the place they inhabit is a brothel of prostitution, for in doing that he is attacking the individual characters of the body of whom the nunnery consists." As noticed in "Campbell's Lives of the Chief Justices" (vol. ii. p. 512), Lord Mansfield expressed himself thus, "The essential principles of revealed religion are part of the common law; so that any publications. person reviling, subverting, or ridiculing them, may be prosecuted at common law. But it cannot be shown, from the principles of natural or revealed religion, that, independent of positive law, temporal punishments ought to be inflicted for mere opinions with respect to particular modes of worship." The cases of Lawrence v. Smith (Jac. Rep. 471) and Rex v. Read (Fortes. 100 n.) were then cited. In the present case the publication of this pamphlet is found to have been with the honest intention of exposing the Roman confessional. It is submitted that the intent is material in construing the 20 & 21 Vict. c. 83, and that therefore the order of sessions was right. A. S. Hill, Q.C., for the respondents.-The question is whether the publication was of such a nature as to amount to a misdemeanor. The preamble of the 20 & 21 Vict. c. 83, taken with the enacting part, show that the suppression of obscene publications was intended. It is not necessary that a criminal intent should exist in the mind of the publisher; the illegality must be inferred from the nature of the publication. If the publication is an obscene one, the intention of the party publishing it is immaterial, as it was in the analogous case of Rex v. Vantandillo (4 M. & S. 73), where the carrying a child infected with the small-pox through the public streets was held indictable, although it was done without any mischievous intention. Lord Kenyon said, in Rex v. Topham (4 T. R. 127), "It was argued that, even supposing there was sufficient evidence of publication, there was no evidence of a criminal intent in the defendant. To this I can answer in the words of Lord Mansfield, in Rex v. Woodfall, 'That where the act is in itself unlawful (as in this case), the proof of justification or excuse lies on the defendant, and on failure thereof the law implies a criminal intent.' Lord Ellenborough, C.J., also approved of this principle in Rex v. Phillips (6 East 473). In Starkie on Libel (vol. ii. p. 158, 2nd ed)., it is said, "Ever since the decision in Curl's case (2 Str. 788), it seems to have been settled that any publication tending to the destruction of the morals of society is punishable by indictment. . . . . 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 of a public nature." The case of Rex v. Read (Fortes. 100, n.), in which it was held that the publication of an innocent book was not indictable, has been shaken by Rex v. Curl. REG. v. HICKLIN AND ANOTHER, JUSTICES OF WOLVERHAMP- (resps.). 1868. Obscene COCKBURN, C.J.-We have considered this case, and we are of opinion that the judgment of the learned Recorder of Wolverhampton must be reversed, and the decision of the magistrates affirmed. This was a proceeding under the act of the 20 & 21 Vict. c. 83, whereby it is provided that in respect of obscene books sold or distributed, magistrates may order the seizure of such publications in case they are of opinion that the works in question could have been the subject-matter of an indictment at law, and the magistrates are of opinion that such prosecution ought to be instituted. Now, it is found publications. here as a fact, that the work which is the subject-matter of the present proceeding was, to a considerable extent, an obscene publication, and, by reason of the obscene matter in it, calculated to produce a pernicious effect in depraving and debauching the minds of the persons into whose hands it might come. The magistrates were of opinion that the work was indictable, and that the publication of it was a fit and proper subject for indictment. We must take the latter finding of the magistrates to have been adopted by the learned Recorder who reversed the decision, but not upon that ground. He leaves that ground untouched; but he reversed their decision upon the ground that although this work was an obscene publication, and although its tendency upon the public mind was that suggested upon the part of the prosecution, yet that the immediate intention of the appellant was not so to affect the public mind, but to expose the practices and errors of the confessional system in the Roman Catholic churches. Now we must take it upon this finding of the learned Recorder that such was the motive of this publication, that its intention was honestly and bona fide to expose the errors and practices of the Roman Catholic Church in the matter of confession. Upon that ground the learned Recorder thought an indictment could not have been sustained, inasmuch as to the maintenance of the indictment he thought it would have been necessary that the intention should be alleged, namely, that of corrupting the public mind by the obscene matter in question. In that respect I differ from him. I think that if there be an infraction of the law, and an intention to break the law, the criminal character of such publication is not affected or qualified by there being some ulterior object, which is the immediate and primary object of the parties in view, of a different and of an honest character. It is quite clear that the publishing an obscene book is an offence against the law of the land. It is perfectly true, as has been pointed out by Mr. Kydd, that there are a great many publications of high repute in the literary productions of this country, that there are also very many works indeed the tendency of which is immodest, and, if you please, immoral; and possibly there might have been subjectmatter for indictment and prosecution in many works which might be referred to. Now, it is not to be said because there are in many standard and established works objectionable passages, that therefore the law is not as alleged on the part of this prosecu |