PART IV. publish an obscene work. An obscene work is here published, and a work, the obscenity of which is so clear and CHAPTER III. 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 criminalty 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 and salutary purpose.' The law does not allow that. You must abide by the law, and if 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." justices. Any person aggrieved by any act or determination of Appeal from act the magistrate or justices in or concerning the execution of of magistrate or the above Act may appeal to the next general or quarter sessions for the county, riding, division, city, borough, or place in and for which such magistrate or justices shall have so acted, giving to the magistrate or justices of the peace whose act or determination shall be appealed against notice in writing of such appeal, and of the grounds thereof within seven days after such act or determination, and before the next general or quarter sessions, and entering within such seven days into a recognisance with sufficient surety, before a justice of the peace for the county, city, PART IV. CHAPTER III. Wrongful acts, tion of the Act. borough, or place in which such act or determination shall have taken place, personally to appear and prosecute such appeal, and to abide the order of and pay such costs as shall be awarded by such court of quarter sessions, or any adjournment thereof; and the court at such general or quarter sessions shall hear and determine the matter of such appeal, and shall make such order therein as shall to the said court seem meet; and such court upon hearing and finally determining such appeal shall, and may, according to their discretion, award such costs to the party appealing or appealed against, as they shall think proper; and if such appeal be dismissed or decided against the appellant, or be not prosecuted, such court may order the articles seized forthwith to be destroyed: provided always that it shall not be lawful for the appellant on the hearing of any such appeal to go into or give evidence of any other grounds of appeal against any such order, act, or determination, than those set forth in such notice of appeal. (a) Sect. 2 enacts that "no plaintiff shall recover in any done in execu- action for any irregularity, trespass, or other wrongful proceeding made or committed in the execution of this Act, or in, under, or by virtue of any authority hereby given, if tender of sufficient amends shall have been made by or on behalf of the party who shall have committed such irregularity, trespass, or other wrongful proceeding, before such action brought; and in case no tender shall have been made, it shall be lawful for the defendant in any such action by leave of the court where such action shall depend, at any time before issue joined, to pay into court such sum of money as he shall think fit, whereupon such proceeding, order, and adjudication shall be had and made in and by such court as in other actions where defendants are allowed to pay money into court." No action, suit, or information, or any other proceeding, of what nature soever, is to be brought against any person for anything done or omitted to be done in pursuance of this Act, or in the execution of the authorities under this Act, unless notice in writing has been given by the party intending to prosecute such action, suit, information, or other proceeding to the intended defendant, one calendar month at least before prosecuting the same. (b) Such action, suit, information, or other proceeding must be brought or commenced within three calendar months next after the act or omission complained of, or in case there shall be a continuation of damage, then within three calendar months next after the doing such damage shall have ceased. (a) The stats. 18 & 19 Vict. c. 41, and 23 & 24 Vict. c. 32, have taken away the jurisdiction in suits for defamation which the Ecclesiastical Courts formerly possessed in England, Wales, and Ireland. PART IV. CHAPTER IIL CHAPTER IV. SEDITIOUS LIBELS. history of free DURING a long period of our history the press of the country Summary of was under a rigorous censorship. The number of printers, (b) am of the dom and of the presses used by them, was strictly limited, and press. the publication of new works was prohibited unless previously authorised by licensers. The censorship of the press was part of the prerogative of the Crown, exercised chiefly through the tribunal of the Star Chamber. On the abolition of the Star Chamber, in 1641, the Long Parliament assumed to itself the jurisdiction exercised by that court in matters relating to the press, and passed many severe ordinances in restraint of printing. The restraints of the press were continued after the Restoration by the Licensing Act of 13 & 14 Car. 2, c. 33 ("An Act for preventing the frequent abuses in printing seditious, treasonable, and unlicensed books and pamphlets, and for regulating of printing and printing presses "). This Act interdicted the printing of pamphlets and books except in London, York, and the Universities; limited the number of master printers to twenty; regulated the number of their presses and apprentices; appointed licensers, and imposed severe penalties on offenders against its provisions. Many cruel punishments were inflicted under this Act. (c) It continued in force till 1679, and in 1685 (a) 20 & 21 Vict. c. 83, s. 3. (b) Queen Elizabeth prohibited printing except in London, Oxford, and Cambridge (1 St. Tr. 1263). At the (e) In 1680, when the Licensing Act had ceased for a time to operate, the opinion of the judges on the subject of unlicensed printing was expressed by Chief Justice Scroggs in the following manner. trial of Benjamin Harris, a bookseller, for the publication of a libel entitled "An Appeal from the Country to the City for the Preservation of his Majesty's Person, Liberty, Property, and the Protestant Religion," the Chief Justice said, "It is not long since that all the judges met by the King's command-as they did some time before, too-and they both times declared unanimously that all persons that do write or print or sell any pamphlet that is either scandalous to public or private persons, such books may be seized and the person punished PART IV. CHAPTER IV. Liberty of press. In 1692 it end of the ceased, not was revived (by 1 Jac. 2, c. 17) for seven years. The liberty of the press, according to Blackstone,(b) when rightly understood, "consists in laying no previous restraints upon publications; not in freedom from censure for criminal matter when published." (c) Though this is true, it cannot, as Hallam remarks, (d) be said to exist in any security, or sufficiently for its principal ends, where discussions of a political or religious nature, whether general or particular, are restrained by too narrow and severe limitations. What the actual limitations are in matters political will be dis by law; that all books which are scandalous to the Government may be seized, and all persons so exposing them may be punished; and, further, that all writers of news, though not scandalous, seditious, or reflective upon the Government or the State, yet if they are writers (as there are few others) of false news, they are indictable and punishable upon that account": (7 St. Tr. 929.) (a) "While the Abbey was hanging with black for the funeral of the Queen, the Commons came to a vote which at the time attracted little attention, which produced no excitement, which has been left unnoticed by voluminous annalists, and of which the history can be but imperfectly traced in the archives of Parliament, but which has done more for liberty and for civilisation than the Great Charter or the Bill of Rights. Early in the session a select committee had been appointed to ascertain what temporary statutes were about to expire, and to consider which of those statutes it might be expedient to continue. The report was made; and all the recommendations contained in that report were adopted, with one exception. Among the laws which the committee advised the House to renew was the law which subjected the press to a censorship. The question was put that the House do agree with the committee in the resolution that the Act entitled An Act for preventing abuses in printing seditious, treasonable, and unlicensed pamphlets, and for regulating of printing and printing presses, be continued.' The Speaker pronounced that the 'noes' had it; and the ayes' did not think fit to divide:" (Macaulay, Hist. of Eng. vol. 4, p. 540.) As to the reasons which induced Parliament to discontinue the Licensing Act, see p. 541 of the volume last referred to. (b) 4 Steph. Com. 346. (c) To the same effect Lord Mansfield: "The liberty of the press consists in printing without any previous licence, subject to the consequence of law" (The King v. Dean of St. Asaph, 3 T. R. 429.) Lord Ellenborough: "The law of England is a law of liberty, and, consistently with this liberty, we have not what is called an imprimatur; there is no such preliminary licence necessary; but if a man publish a paper he is exposed to the penal consequences, as he is in every other act, if it be illegal:" (Rex v. Cobbett, 29 Howell's St. Tr 49.) And Fitzgerald, J.: "By liberty of the press I mean complete freedom to write and publish without censorship and without restriction, save such as was absolutely necessary for the preservation of society:" (11 Cox Cr. Cas. 49.) (d) Const. Hist. vol. 3, p. 227 (edit. 1832). cussed in this chapter, in treating of libellous attacks on the Sovereign, on the Administration, and on the Constitution generally. PART IV. CHAPTER IV. It is to be observed, in the first place, with respect to Form of pubseditious, as well as other libels, that pictures, engravings, lication. or woodcuts may be libellous as well as written or printed words. (a) It is to be observed, in the second place, that in these, as Function of jury. in other cases of libel, the jury are the sole judges of both law and fact: they are to determine not only the fact of publication, but also whether the libel was published with the seditious intention charged in the indictment or information. "You," said Fitzgerald, J., to the jury, in a case of this sort, are the sole judges of the guilt or innocence of the defendant. The judges are here to give any help they can, but the jury are the judges of law and fact, and on them rests the whole responsibility. In this sense the jury are the true guardians of the liberty of the press." (b) "The questions of law are usually for the judge, and on them the jury are bound to take his direction; the questions of fact are solely for their determination. In this peculiar case of libel the law of the land says that the jury shall determine the whole question, whether the publication is a libel or a seditious libel." (c) The fact that the House of Commons has resolved a particular publication to be a malicious, scandalous, and seditious libel, tending to create jealousies and divisions amongst the liege subjects of the Sovereign, and to alienate the affections of the people of this country from the constitution, does not deprive the jury of their right to determine whether the publication is really a seditious libel or not. (d) In a case of this sort, Lord Kenyon, C.J., told the jury that in this country a defendant could never be crushed by the name of his prosecutor, however great that name might be; this was not the first prosecution commenced under the direction of the House of Commons which had failed: in the King v. Stockdale the House of Commons were also the prosecutors, but the defendant in that case was not weighed down by the weight of the prosecution, nor did the jury hold themselves (a) See Reg. v. Sullivan (11 Cox Crim. Cas. 51, 53-55). (b) lb. p. 50; see also per Deasy, B., lb. p. 60. Lord Kenyon thus gives the substance of all that has been said on this subject: "That a man may publish anything which twelve of his countrymen think is not blameable, but that he ought to be punished if he publishes that which is blameable:" (Rex v. Cuthell, 27 Howell's St. Tr. 675). (c) lb. p. 52. (d) The King v. Reeves (2 Peake's N. P. Cas. 84). Y |