knew him knew that he was a man not only of remarkable power of mind, but of opinions liberal in the best sense; and if ever the task of law making could be safely left in the hands of any man perhaps it might have been in his. But, what is more material to the present purpose, the statement of the law by Mr. Starkie has again and again been assented to by judges as a correct statement of the existing law. I will read it to you, therefore, as expressing what I laid down to you as law in words far better than any at my command.

"There are no questions of more intense and awful interest, than those which concern the relations between the Creator and the beings of his creation; and though, as a matter of discretion and prudence, it might be better to leave the discussion of such matters to those who, from their education and habits, are most likely to form correct conclusions, yet it cannot be doubted that any man has a right, not merely to judge for himself on such subjects, but also, legally speaking, to publish his opinions for the benefit of others. When learned and acute men enter upon these discussions with such laudable motives, their very controversies, even where one of the antagonists must necessarily be mistaken, so far from producing mischief, must in general terd to the advancement of truth, and the establishment of religion on the firmest and most stable foundations. The very absurdity and folly of an ignorant man, who professes to teach and enlighten the rest of mankind, are usually so gross as to render his errors harmless; but be this as it may, the law interferes not with his blunders so long as they are honest ones, justly considering, that society is more than

compensated for the partial and limited mischief which may arise from the mistaken endeavors of honest ignorance, by the splendid advantages which result to religion and to truth from the exertions of free and unfettered minds. It is the mischievous abuse of this state of intellectual liberty which calls for penal censure. The law visits not the honest errors, but the malice of mankind. A wilful intention to pervert, insult, and mislead others by means of licentious and contumelious abuse applied to sacred subjects, or by wilful misrepresentations or artful sophistry, calculated to mislead the ignorant and unwary, is the criterion and test of guilt.

"A malicious and mischievous intention, or what is equivalent to such an intention, in law, as well as moralsa state of apathy and indifference to the interests of society, is the broad boundary between right and wrong.' "Now that I believe to be a correct statement of the law."

In this case the defendants were indicted for blasphemous libel in the publication of certain cartoons, etc., in a newspaper called the Freethinker. The jury were directed that a blasphemous libel did not consist in an honest denial of the truths of the Christian religion, but in "a wilful intention to pervert, insult, and mislead others by means of licentious and contumelious abuse applied to sacred subjects ;" and further, that an authority to publish libellous matter was not a presumption of law, but a question of fact. See comments in Whart. Com. Am. Law, § 22.

By Sir J. F. Stephen, on the other hand, it is maintained that it is blasphemy at common law to deny the

truth of Christianity, no matter how temperate and decent may be the terms used. The subject is reviewed with much ability by Mr. John Macdonnell in the Fortnightly Review for June, 1883, it being shown by him that so far from this being settled law it never was maintained, before the eighteenth century, that of blasphemy as such the secular courts had any jurisdiction. The first secular prosecutions were directed, in Queen Anne's time, against persons denying the doctrine of the Trinity, the ground being that such persons were excluded from the act of toleration, and that by the force of such exclusion such denial was made a penal offence. This position was afterwards embodied in a statute (9 & 10 Will. III.) which made it indictable not only to deny the doctrine of the Trinity, but to deny the truth of Christianity, and the inspiration of the Bible. This statute, however, was, in 1813, repealed, and with the repeal the limitation in the act of toleration may be said to have fallen away. This conclusion, however, is disputed by Sir J. F. Stephen, not only, as we have seen, in his History of Criminal Law, but in a pamphlet published by him in 1884 (see London Law Times, June 7, 1884, p. 91). But the sounder view is, that blasphemy, as is stated in the text, is only indictable when uttered in such a way as to insult those against whom it

is directed, and in this way to provoke public disquiet and a breach of the peace. It is not necessary, however, as seems to be intimated by Lord Coleridge, that such blasphemy, to be indictable, should be directed against the prevalent religious belief. To insult the religious belief of a minority is in this sense as indictable as to insult the religious belief of a majority.

This is illustrated in Com. v. Haines, 4 Clark (Phil.), 17, 6 Penn. L. J. 239 (Whart. on Cr. Ev. § 91), where it was rightly held by Gibson, C. J., that it was an indictable offence at common law to parade in a city, a stuffed "Paddy," as an effigy of St. Patrick, and thus to insult and provoke Roman Catholic Irish.

14.

People v. Porter, 2 Parker C. R.

State v. Brown, 1 Williams (Vt.), 619; Coin. v. Holmes, 17 Mass. 336; Com. v. Dejardin, 126 Ibid. 46; People v. Muller, 39 Hun, 209; Knowles v.. State, 3 Day's Cas. 103; People v.. Hallenbeek, 2 Abb. (N. C.) 661; Com. v. Sharpless, 2 S. & R. 91; McNair v. People, 89 Ill. 441; Bell v. State, 1: Swan, 42; State ». Appling, 25 Mo. 315..

In R. v. Hicklin, L. R. 3 Q. B. 360, Cockburn, C. J., said: "The test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influ..

Obscenity

indictable

law.

ences ;" 99 66 a definition," says the Alb. L. J., June 21, 1879, “which was substantially adopted by Judge Benedict in his charge to the jury in U. S. v. Bennet, 1879; 6 Blatch. C. C. 338. The definition given by Judge Clark, on the trial of the indictment of Heywood under the same statute, was: “A book is said to be obscene which is offensive to decency or chastity, which is immodest, which is indelicate, impure, causing lewd thoughts of an immoral tendency." Hence in U. S. v. Bennett (Alb. L. J., June 21, 1879), it was held that under the federal statute prohibiting the mailing of obscene publications, it was for the jury to determine whether a publication was ob

scene.

In Montross v. State (Ga. 1884), a conviction of the vendor of the Police Gazette was sustained, and it was held inadmissible to put in evidence other newspapers alleged to be more indecent. 1 Barker v. Com., 19 Penn. St. 412; Bell v. State, 1 Swan, 42. Supra, § 1603.

• Supra, § 1432; R. v. Hicklin, L. R. 3 Q. B. 360; Com. v. Holmes, 17 Mass. 336; Knowles v. State, 3 Day's Cas. 103; Com. v. Sharpless, 2 Serg. & Rawle, 91.

R. v. Hicklin, ut supra, the cases were thus reviewed by Blackburn, J., "In the case of R. v. Moxon, 2 Mod. S. Tr. 356, and in many of the instances cited by Mr. Kydd, a book had been published which in its nature was such as to be called obscene or mischievous, and it might be held to be a misdemeanor to publish it; and on that account an indictable offence. In Moxon's Case, supra, the publication of Shelley's Queen Mab' was found by the jury

to be an indictable offence; I hope I may not be understood to agree with what the jury found, that the publication of 'Queen Mab' was sufficient to make it an indictable offence. I believe, as everybody knows, that it was a prosecution instituted merely for the purpose of vexation and annoyance. So, whether the publication of the whole works of Dryden is or is not a misdemeanor, it would not be a case in which a prosecution would be proper; and I think the legislature put in that provision in order to prevent proceedings in such cases."

"I take the rule of law to be, as stated by Lord Ellenborough in R. v. Dixon, 3 M. & S. at p. 15, in the shortest and clearest manner: 'It is a universal principle that when a man is charged with doing an act' (that is, a wrongful act, without any legal justification), 'of which the probable consequence may be highly injurious, the intention is an inference of law resulting from the doing the act.' And although the appellant may have had another object in view, he must be taken to have intended that which is the natural consequence of the act. If he does an act which is illegal, it does not make it legal that he did it with some other object. That is not a legal excuse, unless the object was such as under the circumstances rendered the particular act lawful. That is illustrated by the same case of R. v. Dixon, 3 M. & S. 11. The question in that particular case was, whether or not an indictment would lie against a man who unlawfully and wrongfully gave to children unwholesome bread, but without intent to do them harm. The defendant was a contractor to supply

bread to a military asylum, and he supplied the children with bread which was unwholesome and deleterious, and although it was not shown or suggested that he intended to make the children suffer, yet Lord Ellenborough held that it was quite sufficient that he had done an unlawful act in giving them bread which was deleterious, and that an indictment could be sustained, as he must be taken to intend the natural consequences of his act. So in the case in which a person carried a child which was suffering from a contagious disease along the public road, to the danger of the health of all those who happened to be in that road, it was held to be a misdemeanor, without its being alleged that the defendant intended that anybody should catch the disease. R. v. Vantandillo, 4 M. & S. 73. Lord Ellenborough said that if there had been any necessity, as supposed, for the defendant's conduct, this would have been matter of defence. If, on the other hand, the smallpox hospital were on fire, and a person in endeavoring to save the infected inmates from the flames took some of them into the crowd, although some of the crowd would be liable to catch the smallpox, yet, in that case, he would not be guilty of a wrongful act, and he does not do it with a wrong intention, and he would have a good defence, as Lord Ellenborough said, under not guilty. To apply that to the present case: the recorder has found that onehalf of this book is obscene, and nobody who looks at the pamphlet can for a moment doubt that really onehalf of it is obscene, and that the indiscriminate circulation of it in the

way in which it appears to have been circulated must be calculated necessarily to prejudice the morals of the people. The object in this case (R. v. Hicklin) was to produce the effect of exposing and attacking the Roman Catholic religion, or practices rather, and particularly the Roman Catholic confessional, and it was not intended to injure public morals; but that in itself would be no excuse whatever for the illegal act. The occasion of the publication of libellous matter is never irrelevant, and is for the jury; and the jury have to consider, taking into view the occasion on which matter is written which might injure another, is it a fair and proper comment, or is it not more injurious than the circumstances warranted? But, on the other hand, it has never been held that the occasion being lawful can justify any libel, however gross. I do not say there is anything illegal in taking the view that the Roman Catholics are not right. Any Protestant may say that without saying anything illegal. Any Roman Catholic may say, if he pleases, that Protestants are altogether wrong, and that Roman Catholics are right. There is nothing illegal in that. But I think it never can be said that in order to enforce your views you may do something contrary to public morality; that you are at liberty to publish obscene publications, and distribute them amongst every one,-school-boys and every one else,-when the inevitable effect must be to injure public morality, on the ground that you have an innocent object in view, that is to say, that of attacking the Roman Catholic religion, which you have a right to do.