ARTICLE 172.

OBSCENE PUBLICATIONS.

1Every one commits a misdemeanor who without justification,

(a.) Publicly sells, or exposes for public sale or to public view, any obscene book, print, picture, or other indecent exhibition; 2 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. (b.) Publicly exhibits any disgusting object.

Any person convicted of the offence defined in clause (a.) may be sentenced to hard labour.

(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.

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.

1 Note V; Strange, 790; and see 20 & 21 Vict. c. 83, 100, s. 29; Starkie (by Folkard), 603-12. Draft Code, s. 147.

1; 14 & 15 Vict. c.

2 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 was taken in 1878 and are reported in L. R. 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.

3 Harring v. Watson, 1 Russ. Cr. (5th ed.) 436.

(2.) 1 A, a bookseller, publishes the work of a casuist, which contains amongst other things obscene matter. The work is published in Latin, and appears from the circumstances of its publication to be intended for bonâ 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 selis it as a pamphlet about the streets for the purpose of throwing odium upon casuists. B has committed a misdemeanor.

ARTICLE 173.

DEFILING GIRLS UNDER AGE.

2 Every one commits a misdemeanor and is liable upon conviction thereof to two years imprisonment with hard labour as a maximum punishment who, by false pretences, or false representations, or other fraudulent means, procures any woman or girl, under the age of twenty-one years, to have illicit carnal connection with any man.

1 The second paragraph of this illustration is based upon R. v. Hicklin, L. R. 3 Q. B. 360; and see Steele v. Brannan, 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, L. R. 7 C. P. 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 relation 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. 2 24 & 25 Vict. c. 100 s. 49. Draft Code, s. 148.

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ARTICLE 174.

CONSPIRACY TO DEFILE.

1 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.

ARTICLE 175.

PREVENTING THE BURIAL OF DEAD BODIES AND DISINTERRING THEM.

2 Every one commits a misdemeanor who prevents the burial of any dead body, or who, without authority, disinters a dead body, even from laudable motives; or

who, having the means, neglects to bury a dead body which he is legally bound to bury, provided that no one is legally bound to incur a debt for such a purpose; or

3 who buries or otherwise disposes of any dead body on which an inquest ought to be taken, without giving notice to a coroner, or who, being under a legal duty to do so, fails to give notice to a coroner that a body on which an inquest ought to be held is lying unburied, before such body has putrified.

1 R. v. Lord Grey, 3 St. Tr. 519; 1 East, P. C. 460; R. v. Mears, 2 Den. 79; R. v. Delaval, 3 Burr. 434. Draft Code, s. 149.

2 R. v. Vann, 2 Den. 325. A man is bound to bury his child's body, and, I suppose, his wife's. In R. v. Vann Lord Campbell said, "A man is bound, if he has the means, to give his child Christian burial." This can hardly be a duty in the case of persons who are not Christians, but probably “Christian” means only decent. It appears from R. v. Stewart, 12 A. & E. 773, 779, that the person under whose roof another person dies is under a legal duty to carry the corpse, decently covered, to the place of burial if there is no one else who is bound to bury it. Draft Code, s. 158.

31 Russ. Cr. 620 (5th ed.) 7th Rep. C. L. C. pp. 50, 51.

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Illustrations.

(1.) A digs up a dead body and sells it for purposes of dissection. This is a misdemeanor.

(2.) 2A, without the consent of a dissenting congregation, to which a burial ground belonged, or of trustees having the legal estate therein, but with the leave of the person in charge, digs up his mother's coffin in order to bury it in his father's grave in a churchyard some miles off. This is a misdemeanor.

(3.) A, a gaoler, refuses to deliver up for burial the dead body of a prisoner who had died in gaol to the executors, on the ground that the deceased person owed him money. This is a misdemeanor.

1 R. v. Lynn, 1 Lea, 497.

2 R. v. Sharpe, D. & B. 160.

3 R. v. Scott, 2 Q. B. 248 (in a note to R. v. Fox).

CHAPTER XIX.

COMMON NUISANCES-DISORDERLY HOUSES.

ARTICLE 176.

COMMON NUISANCE.

1 A COMMON nuisance is an act not warranted by law or an omission to discharge a legal duty, which act or omission obstructs or causes inconvenience or damage to the public in the exercise of rights common to all Her Majesty's subjects. It is immaterial whether the act complained of is convenient to a larger number of the public than it inconveniences, but the fact that the act complained of facilitates the lawful exercise of their rights by part of the public may shew that it is not a nuisance to any of the public.

Illustrations.

(1.) 2 An electric telegraph company without legal authority erects a telegraphic pole in a permanent manner on the waste at the side of and forming part of a highway, leaving room enough for the use of the highway, and not affecting either the metalled road or the footpath, by the side of it. This is a public nuisance, because a small portion of space which the public had a legal right to use is obstructed.

(2.) A tramway laid down on a high road in such a manner as to obstruct to some extent the use of the road by common carriages is a public nuisance, although it may be convenient to a large majority of those who use the road.

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(3.) The public have a right to use the Tyne as a highway and to anchor

11 Hawk. P. C. 692. The question as to the public benefit of the act complained of may arise indirectly. Draft Code, s. 150.

2 R. v. United Kingdom Telegraph Co., 3 F. & F. 73.

3 R. v. Train, 2 B. & S. 640.

4 R. v. Russel, 6 B. & C. 566. I think this is the effect of the case, which deserves careful study. It is referred to in R. v. Train, but I doubt whether it is not misunderstood there. Lord Tenterden differed in it from Bayley and Holroyd, JJ. Of the eight counsel engaged seven became judges. R. v. Betts, 13 Q. B. 1022, refers to it in a manner which seems to me inadequate. In A. G. v. Terry (L. R. 9 Ch. App. 425) Jessel, M.R., disapproved of R. v. Russel, though