One of the results of a writing or speech being blasphemous is, that no action can be brought by either party to enforce any contract involving the committing of such an offence. And hence, where a lecturer hires a room to deliver lectures which seem to have for their object the dissemination of blasphemous doctrines, either party may break the contract with impunity, and the court will not be nice in deciding, whether the basis was blasphemy at common law or by statute, or something very near to the offence.1

But

Remedy against blasphemies.-The mode of proceeding at common law against a person for blasphemy was by indictment or criminal information. The defence usually set up is, that the words are only the results of independent thought, and that the expression of them is the affair of the individual, and does not concern the public. whether the case is one of temperate reasoning or offensive and scurrilous abuse, intended merely to insult the orthodox, is necessarily the main question for a jury. There can be no justification, in the ordinary sense, as in the case of a defamatory libel, that it was for the public good that the libel should be published, for in no circumstances can it be for the public benefit, if it be once established that it is seditious or blasphemous. And yet any considerations arising out of the public good, if these are fairly pertinent, can generally be brought to bear on the main point, whether the defendant, in his honest endeavours, was or was not prosecuting the public good at the time even if he were

2

that held to be proved.-R. v Moxon, 2 Mod. St. Tr. 362; Parl. Deb. H. L. 13 July, 1857. And the judge appositely remarked on the, same trial, that such publications would be more effectually suppressed by confuting the sentiments than by prosecuting the authors or publishers.-2 L. Denman's Life, 129. Moxon was convicted, but never called up for judgment.

The law relating to blasphemy at common law is based partly on the maxim once prevalent, that Christianity was part of the law of England, as to which see 1 Pat. Com. (Pers.) 111. It must be recollected on this subject, that it was the doctrine of Coke, and even so late as Holt, C. J., and Treby, that any law, that is, any statute made against any point of the Christian religion, or what they thought was the Christian religion, was void.—10 St. Tr. 375. This showed a very imperfect notion of the scope of municipal law, and of the action and power of Parliament.

1 Cowan v Milburn, L. R. 2 Exch. 230. C. C. 45.

2 R. v Duffy, 2 Cox,

somewhat mistaken in his mode of doing so.

Whenever

verdict or judgment has been given to the effect, that a publication is blasphemous or seditious, the judge may forthwith order all copies in the defendant's possession, or any other person's possession for his use, to be seized, and if there is no appeal then to be destroyed. And any justice of the peace may grant a warrant to search for the same.

Punishment of blasphemy.-The old modes of punishing blasphemy have, as in other cases, been always cruel and excessive. Plato thought blasphemies should be punished with imprisonment for life or a shorter period; and also with denial of burial.2 The Wisigoths ordered a blasphemer's head to be shaved and his body punished with 100 stripes and perpetual imprisonment. In countries adopting the civil law, Menochius said the punishment so late as the seventeenth century was boring the tongue or cutting it out, and sometimes it was death. The Franks punished the offence with death, and at later dates with imprisonment and public penance. In England so late as 1656 Parliament ordered Naylor the Quaker, who personated the Saviour and was obviously a lunatic, to be punished by having his tongue bored with a red-hot iron, by being burned in the forehead with the letter "R," and whipped and pilloried. One mode of punishment, which nearly all barbarous nations have thought to be most appropriate for blasphemy, was exposure in the pillory, and this mode was adopted in most of the earlier cases in this country.7 But that mode of punishment for this offence was wholly abolished in 1837.8 The only mode of punishment now

1 60 Geo. III. & 1 Geo. IV. c. 8. 2 Plato, Leg. b. x. 3 Leg. Wisig. b. xii. pt. 3. 4 Menoch. de arb. 375.

5 Baluz. I. col. 650, 940, 1172. The ancient Scots treated blasphemy against God or the head of the clan as punishable with cutting out the tongue, and at later stages with excommunication and some disabilities.-Hect. Boet. b. x. And up to the year 1813 there was a punishment by public atonement in sackcloth.-Stat. 1661, c. 21; 1695, c. 11; 53 Geo. III. c. 160, § 3.

6 R. v Naylor, 5 St. Tr. 819. The Paterines, who were a sect of freethinkers who scoffed at sacraments, baptism, and matrimony, were in the twelfth century dealt with by searing their foreheads with a hot iron and whipping them half-naked through the streets, and sending them into the country in winter to starve.-1 Pike on Crime, 156. 7 R. v Taylor, Vent. 293. 8 1 Vic. c. 23; 2 Pat. Com. (Pers.) 282.

left is fine or imprisonment, and neither of these is defined as regards the amount or extent.1

Immoral and obscene publications.-While blasphemy in a speech or published document is an offence, however rare and difficult to deal with, unless of a gross and scandalcus kind, obscenity or immorality in published documents is another ground, and is viewed in much the same light. And it is well to keep in view, that the reason why these are deemed offences is not because it is either the duty or province of the law to promote religion or morality by any direct means or punishments, but because the line must be drawn between what is and is not the average tone of morality which each person is entitled to expect at the hands of his neighbour as the basis of their mutual dealings. As the punishment of immorality was once so ambitiously undertaken by all ecclesiastical courts, it is not to be wondered, that it was in comparatively modern times, that the temporal courts became cognisant of the bounds of their own jurisdiction in this direction. The Star Chamber, which was mostly ecclesiastical in its constitution and views, claimed indeed the power of redressing all wrongs and injuries in some arbitrary and monstrous fashion of its own.2 And Burke said the disembodied spirit of the Star Chamber had migrated into Westminster Hall, and haunted the courts there also with strange views about libels. 3 The Court of Queen's Bench long seemed inclined to follow in the same track by calling itself the custos morum. And Lord Chancellor Jeffreys seemed to think this function was part of its main work. So late as 1706, when one Read was indicted for publishing an obscene libel, Holt, C.J.,

1 2 Pat. Com. (Pers.) 222. Sedley's Case, 1 Sid. 168.

2 1 Ibid. 23. 3 17 Parl. Hist. 47.

5 Perhaps the doctrine of the Court of Queen's Bench being custos morum was never more strongly put than by L. JEFFREYS, L. C., in Westminster Hall, coram populo, on inaugurating his successor, Herbert, C. J., in that court in 1685: "Go on; be prosperous: be undaunted and courageous; encourage all virtue and morality, suppress all vice and iniquity: be sure to execute the law to the utmost of its vengeance upon those that are now known-and we have reason to remember them-by the name of Whiggs! and you are likewise to remember the Snivelling Trimmers for you know what our Saviour Jesus Christ says in the Gospel, that they that are not for us are against us.'"-2 Collect. Jurid. 406. This address was overlooked by Lord Campbell, the biographer.

doubted, whether the punishment ought not to be left to the ecclesiastical court.1 On further inquiry, however, when the court was satisfied, that to destroy morality was only another way of destroying the peace and public order of society, it was held, that to publish an obscene libel was an indictable offence, and Curll was punished and put in the pillory in 1714 on this account. L. Raymond, C.J., went the length of saying, that any immorality was indictable if it disturbed the civil order of society. And half a century later Wilkes was indicted, convicted, and fined for his libellous Essay on Woman, it being deemed scandalously indecent and an offence at common law. And the publisher of obscene poems of Lord Rochester was also indicted.5

Attempted definition of immoral and obscene writing. It is impossible to define what is an immoral or obscene publication. To say that it necessarily tends to corrupt or deprave the morals of readers supplies no definite test. Fortunately there is seldom any difference as to where the line is to be drawn in singling out the offence. It is instinctively perceived by all, and in cases of doubt the decision must be left to the jury of the day, who can seldom go wrong on this matter."

Seizure and destruction of obscene publications.—It has been found in modern times, that it is no sufficient remedy to punish those who publish libels, for the mischief may already have been done, and that mischief must always be indefinite. Hence attempts have been made to intercept the evil at an earlier stage, namely, when the libellous publications are in the hands of the person who is engaged in the business of circulating them. The seizing of these before circulation is the only effectual security, though it is seldom easily carried out in practice. This extension of the remedy was not effected till 1857,

1 Read's Case, Fort. 98.

2 16 St. Tr. 154; 1 Barn. 29; R. v Curll, 2 Str. 789. Curll, when in the pillory, told the mob that he was punished for vindicating the memory of Queen Anne, and was at once popular with them.

3 17 St. Tr. 159. 4 R. v Wilkes, 4 Burr. 2527, 2530. 5 R. v Hill,

2 Str. 790.

6 See, as to analogous cases, relating to indecent exposure, 2 Pat. Com. (Pers.) 362.

when Lord Campbell's Act was passed, having this as its object. In case of indecent libels, no defence on the ground that it is useful to the public to know and read such matters can be entertained. And hence, where a pamphlet was published professing to expose the indecencies of the confessional, and by way of doing so repeating many obscene passages, the court held that the ulterior object, however good, did not form any defence, and that the publication was indecent.2 And for a like reason a like defence of a report of a trial in a court of law, which involved obscene and indecent details, was overruled.3

Punishment for immoral or obscene libels.-The punishment of a person who publicly sells, or exposes for sale, obscene books or prints, is fine or imprisonment, and that imprisonment may be for any term now warranted by law, and also be accompanied with hard labour during all, or any part of such term of imprisonment. This being an offence at common law, the time of imprisonment is at the discretion of the court, and so is the amount of fine; and the addition may be made of surety of the peace for a reasonable time.5 While the law now punishes those who not only publish or sell, but who keep a stock of such publications ready for sale, it is not to be forgotten, that the mere possession by a private person is not interfered with, for in order to carry out such law the inquisition into private houses and interference with liberty would be intolerable. And even the keeping of these publications with intention to sell, taken by itself, is not an offence, so long as no overt act is done to carry out that intention." But the moment a person goes further, and obtains and procures obscene publications for the purpose of sale, then an offence begins, for the active part he takes indicates an intention to circulate them, and so to corrupt morals. And as it would be futile to punish the obtaining and procuring of obscene

1 2 Pat. Com. (Pers.) 366.

2 R. v Hicklin, L. R., 3 Q. B. 371. 4 14 & 15 Vic. c. 100,

1 Steele v Brannan, L. R., 7 C. P. 261.

§ 29. 5 R. v Hart, 30 St. Tr. 1344; R. v Dunn, 12 Q. B. 1026. Dugdale's Case, 1 Dearsl, 64. 7 Ibid.