§ Order of the Day for the Second Reading read.
LORD CAMPBELL, in moving the second reading of the Bill said, that the object of it was to prevent the spread of those obscene prints and publications which had become of late most alarming. Their Lordships could scarcely conceive the extent to which the trade in those infamous works was carried. From information which he had recently received, he was led to believe that a considerable capital was engaged in the trade; that there were warehouses where those abominations were stored; that there were persons actually employed to travel about the country for the purpose of distributing circulars of the most exciting description. These were also sent under a penny postage stamp, inviting the people to come, and see, and purchase. It was easy to imagine the great evils that must arise from this detestable traffic. He believed that there was no country in Europe in which the circulation of such articles was permitted with the same facilities as existed in this country; because, in every other country the police had a more summary power in respect to them than the police had here. The principle upon which the Bill was founded was a simple one. As the law now stood, the only remedy that existed was an indictment against the publisher of obscene publications, which must be set on foot by private information. But there was still great; difficulty in enforcing the law, because the publishers were generally on their guard. In order to obtain the required evidence, it was necessary to employ a class of men 328 that could not be looked on with much respect—that class known as spies and informers. The individual employed on this duty must enter the place where those prints or publications were supposed to be, under the pretence that he was an admirer of such productions, and that he wished to purchase some of them. Having succeeded in obtaining them, he comes into a court as a witness, for the purpose of giving evidence on the matter. In order to render his evidence acceptable, and free from all suspicion, the informer must be searched by a policeman immediately before he enters the house or shop in question, with a view of showing that he could not have had any of those infamous works about him at the time; and immediately after he leaves the premises, in order to prove that he could only have obtained them at the place he had just visited. And, after all, from the doubtful character of such witnesses, it was difficult to obtain a conviction. Well, then, when the conviction took place, the criminal himself was sent to prison; but that did not put a stop to the trade, for the business was carried on as briskly as ever, in the name of the wife or son of the convicted party, and the poison was circulated, probably, more industriously and effectually than before. Therefore he contended that at present they had no effectual remedy against the evil. Now, he proposed that they should do something similar to that which they they had done in respect to gaming-houses. There was a power given by a recent Act against gaming-houses, which, however, was greater than what he asked for the present measure. Upon applications founded on affidavit before a magistrate, stating that there was gaming going on in a certain place, contrary to law, a warrant was granted, under which the police might enter the house and use all reasonable force that was necessary to enable them to search every corner of the house, from the cellar to the garret, and to carry away all cards, balls, dice, and other instruments of gaming, and might also arrest all persons they found on the premises, and have them summarily convicted before the magistrates. That power had been found most beneficial, and as had been found in recent cases, was attended with the most satisfactory results. He, however, did not ask the House to go so far in regard to the present Bill. He merely asked their Lordships to treat those obscene prints and publications in the way they treated commercial goods that had 329 not paid the duty. He proposed that the magistrates should have the power of issuing their warrants upon affidavits being made of the existence of those indecent publications in certain places, and that the police should have the power of entering those places and seizing upon all such property as they found there. The noble Lord having recited the heads of the clauses of the Bill, moved that their Lordships now read it the second time.
§ Moved, That the Bill be now read 2a.
LORD BROUGHAMsaid, he was sure that no one was more competent to judge of the extent of the evil for which he proposed to legislate than the noble and learned Lord himself. It was astounding to read the accounts which had gone through the papers lately of one or two cases of an infamous character tried before his noble and learned Friend. He was sure that there was but one which pervaded the country generally upon this subject—that everything that could be safely and properly done should be done to suppress this great and crying evil. He was, however, of opinion, that his noble and learned Friend would find some difficulties in the details of his measure. For example, how did he propose to define what was an "obscene publication?" He did not wish to treat the measure with any kind of disrespect, but he thought that unless the details were greatly altered, the Bill would fail to remedy the evil complained of. He would remind his noble and learned Friend, that in the works of some of their most eminent poets there were some objectionable passages which, under this measure, might cause them to be considered obscene publications.
LORD CAMPBELLsaid, he had not the most distant contemplation of including in the Bill the class of works to which the noble and learned Lord referred. The measure was intended to apply exclusively to works written for the single purpose of corrupting the morals of youth, and of a nature calculated to shock the common feelings of decency in any well regulated mind. Bales of publications of that description were manufactured in Paris, and imported into this country. He was ready to make what was indictable under the present law a test of obscenity.
THE LORD CHANCELLORsaid, he shared in that reluctance which every one must entertain in appearing for the moment to be opposed to a measure having the very laudable object which the noble 330 and learned Lord had in view; particularly when it would be admitted by all that the measure which was proposed as a remedy for the evil complained of came with peculiar fitness from his noble and learned Friend, not only on account of his position as a distinguished Member of that House, but also in regard to the elevated position he occupied in the highest court of law. But, however zealous his intentions might be to abolish a vile and immoral traffic, he (the Lord Chancellor) thought that he would find it impossible to frame any clause that might not enable a person inclined to be vexatious to interfere with what his noble and learned Friend himself believed should not be meddled with under the provisions of his Bill. Who could tell but that the superintendent of police or the magistrates before whom the application came would take a different view of what were obscene or indecent publications from the noble and learned Lord? It appeared to him (the Lord Chancellor) that the definition of the first clause would rest with the magistrate; and that of the second with the superintendent of police. But even supposing that the police had seized upon those publications, what were they to do with them?
THE LORD CHANCELLORsaid, that he did not like to oppose the second reading of the Bill; but unless it could be very materially altered in its progress, he did not think the measure could fitly become the law of the land.
§ THE EARL OF EGLINTONaddressed a few observations to the House, which were inaudible.
§ LORD LYNDHURSTMy Lords, while giving full credit to my noble and learned Friend the Lord Chief Justice for the feelings which have prompted him to bring forward this Bill, I entirely agree with my noble and learned Friend on the woolsack that it will wholly fail in its object, and that it is unwise and imprudent to poke into these question and agitate the public mind in respect to them. My noble and learned Friend's aim is to put down the sale of obscene books and prints; but what is the interpretation which is to be put on the word "obscene?" I can easily conceive that two men will come to entirely different conclusions as to its meaning. I have looked into Johnson to see what definition he gives of the word, and I find 331 that he says it is something "immodest; not agreeable to chastity of mind; causing lewd ideas." These are the definitions which he gives of the word. Suppose now a man following the trade of an informer, or a policeman, sees in a window something which he conceives to be a licentious print. He goes to the magistrate, and describes, according to his ideas, what he saw; the magistrate thereupon issues his warrant for the seizure of the disgusting print. The officer then goes to the shop, and says to the shopkeeper, "Let me look at that picture of Jupiter and Antiope." "Jupiter and what?" says the shopkeeper. "Jupiter and Antiope," repeats the man. "Oh! Jupiter and Antiope, you mean," says the shopkeeper; and hands him down the print. He sees the picture of a woman stark naked, lying down, and a satyr standing by her with an expression on his face which shows most distinctly what his feelings are and what is his object. The informer tells the man he is going to seize the print, and to take him before a magistrate. "Under what authority?" he asks; and he is told—"Under the authority of Lord Campbell's Act." "But," says the man, "don't you know that it is a copy from a picture of one of the most celebrated masters in Europe?" That does not matter; the informer seizes it as an obscene print. He asks if the shopkeeper has got any more prints like it? "Oh, Yes, I have got several others," is the answer. Whereupon he searches the shop, and in so doing perhaps he stumbles upon a print of the story of Danae. There he sees a naked woman lifting her eyes to heaven, but standing in a very strange attitude, the shower of gold descending upon her, a little Cupid peeping over her shoulder pointing with his dart, and other circumstances which I will not describe. Well, is this print also to be brought before the magistrate? These prints come within the description in this Bill as much as any work you can conceive. And yet they are both celebrated pictures; the first is a copy of a famous Correggio which hangs in the large square room of the Louvre, right opposite an ottoman, on which are seated daily ladies of the first rank from all countries of Europe, who resort there for the purpose of studying the works of art in that great gallery. But this is not all. Our informant leaves the print shop and goes into the studio of a sculptor or some statuary and sees there figures of nymphs, 332 fauns, and satyrs, all perfectly naked, some of them in attitudes which I do not choose to describe. According to this Bill they may every one be seized,—
Nympharumque leves cum satyris chori.Well, I will now go to a third class—the poets—for the informant next proceeds to the circulating libraries. I do not know whether my noble and learned Friend's extensive reading has made him familiar with the poems of Rochester, but I think they would come under the description of this Bill. "The freedom of ancient satirists," says Hume, the historian, "no more resembles the licentiousness of Rochester than the nakedness of an Indian does that of a common prostitute." Suppose that book is in a certain library lent out for hire; under my noble and learned Friend's Bill it may be seized at once—in fact, under the Bill a circulating library may be searched from one end to the other. In the same way the dramatists of the Restoration, Wycherley, Congreve, and the rest of them,—there is not a page in any one of them which might not be seized under this Bill. One of the principal characters in one of Congreve's plays is Lady Wishfor't. Dryden, too, is as bad as any of them. He has translated the worst parts of Ovid—his Art of Love—works for which Ovid vas exiled, and died, I believe, on the shores of the Euxine. There is not a single volume of that great poet which would not come under the definition of my noble and learned Friend's Bill. I need scarcely recall to your Lordships' remembrance that poem—"Sigismonda and Guiscardo"—I think it is, beginning—While Norman Tancred in Salerno reigned,in which occurs the description of the secret wedding, the scenes that preceded it, and the scenes that were immediately consequent upon it. I will not repeat to your Lordships more of it than this passage:—The holy man, amazed at what he saw,Made haste to sanctify the bliss by law;And muttered fast the matrimony o'cr,For fear committed sin should get before.But I think your Lordships will see from this specimen that Dryden's poems must be placed in my noble and learned Friend's Index Expurgatorius. Take, too, the whole flight of French novelists, from Crebillon, fils, down to Paul de Kock; nothing can be more unchaste, nothing more immodest, than they are; and when my noble and learned Friend's Bill is passed, every copy of them may be committed to the bonfire with as little mercy as Don Quixote's chivalry books were. 333 But, my Lords, I contend that this Bill will be entirely inoperative. The books and prints at which it is aimed are small in bulk, they may be kept in a retired part of the shop, and only be produced when a customer comes in for them, so that, in fact, you will not always be able to lay your hands upon them. I feel as strongly as any one can the infamy of the sale of these books, but, so far from agreeing with my noble and learned Friend that a Bill of this description is necessary to put it down, I am satisfied that the law as it stands is abundantly strong enough. All that is needed is additional vigour in the administration of the existing law. I am satisfied that nothing can be easier than to arrange means for detecting persons engaged in this trade; and when persons are found guilty of the offence of publishing and selling these books, instead of getting merely a nominal punishment, let them be sentenced to such a punishment as the infamy of their guilt merits, and as will effectually deter others from following in their steps. My Lords, I see such objections to the Bill of my noble and learned Friend that I move it be read a second time this day six months.
§ Amendment moved, to leave out "now," and insert "this Day Six Months."
LORD CAMPBELLsaid, that there was no analogy whatever between the cases mentioned by the noble and learned Lord and the publications aimed at by the Bill. On the principle laid down by the noble and learned Lord, not only could there be no new remedy for this evil provided, but the old remedy must be taken away also. The noble and learned Lord said there was no definition of obscenity.
§ LORD LYNDHURST rose to order.
§ LORD LYNDHURSTspoke to order. His noble and learned Friend, having made a speech and concluded with a Motion, was not entitled to rise and make another speech till all the noble Lords who wished to address the House had expressed their sentiments. That was the rule of the House.
LORD CAMPBELLsaid, an Amendment had been moved to the Motion which he had made, and he had a right to make another speech on that Amendment. His noble and learned Friend rose to order, but he was himself out of order. In his zeal for these filthy publications, his noble and learned Friend had gone entirely wrong 334 as to what was the rule of the House—an error which certainly surprised him in one who had so long held the office of Lord Chancellor. ["Order!"]
§ LORD ST. LEONARDS rose to order. His noble and learned Friend (Lord Campbell) had made a Motion; to that Motion an Amendment had been moved, but the Amendment had not yet been proposed to the House.
THE LORD CHANCELLORsaid, the Motion before the House was, that this Bill be now read a second time; since which it had been moved as an Amendment that it be read a second time that day six months.
LORD CAMPBELLAnd on that Amendment I have an undoubted right to address the House. ["Order, order!"] With regard to what has been said by my noble and learned Friend—
§ LORD REDESDALEagain rose to order. He thought his noble and learned Friend was under a mistake as to his right. The object of the Amendment was to meet the Question, that the Bill be "now" read a second time, and it was not competent for the Mover to speak to such an Amendment, so long as there were other noble Lords who wished to address the House.
LORD BROUGHAM, who said that, according to his experience of the rules of the other House, the noble and learned Lord had no right to address their Lordships. In the other House, they had in the Speaker an officer who kept order and controlled the proceedings; in their Lordships' House, however, the office of Speaker was as it were in commission, and the duty of preserving order devolved upon the whole House. Now, according to the rules of the other House—and he thought in this House also—the maker of a Motion had—he would not say a right, for there was none—but a privilege, through the courtesy of the House, to make a general reply; but it was a mere mockery to say that, upon such an occasion as the present, he was entitled to make a second speech.
THE EARL OF WICKLOWcontended that the noble and learned Lord (Lord Campbell) was entitled to speak to the Amendment. In point of fact, the debate did not begin till an Amendment was moved.
THE LORD CHANCELLORsaid, that when his noble and learned Friend moved the Amendment, he (the Lord Chancellor) ought in strictness to have proposed it to the House, but to do so was not the practice of their Lordships' House. His idea of the rule distinctly was, that his noble and learned Friend had a right to speak to the Amendment that had been moved, and such, he believed, was the invariable rule in the other House of Parliament. In point of fact, a distinct question was raised by the Amendment.
LORD CAMPBELL, claiming his right to address the House, was perfectly willing to waive that right till he had heard such of their Lordships as wished to speak upon the question.
VISCOUNT DUNGANNON, having had the honour of a seat in the other House of Parliament, must declare against the right of the noble and learned Lord to make a second speech.
LORD BROUGHAMsaid that, after all, everything must depend upon the nature of the Amendment. It might be substantially a different Motion altogether, in which case the maker of the original Motion might have a right to be heard upon it; but in this instance, it was only another way of saying "no" to the original Motion.
§ EARL GRANVILLEwished to speak with great diffidence on a question which had elicited so much difference of opinion. He believed that even in the case of a substantive Motion there was no right of reply, though the House generally allowed one to be made; but, if an Amendment, such as had been brought forward that evening was made, then, he believed, the rule of the House was that a right to reply existed.
§ THE EARL OF ELLENBOROUGHsaid, he had the misfortune to be a very old Member of their Lordships' House; he had also been a Member of the other House of Parliament; he was ready to maintain, therefore, that, according to the rules of Parliament, every Member who made a Motion had a right to reply; but it did not necessarily follow that he should have the last word in the debate. If he chose to make his reply immediately after the Amendment moved, he had no right to speak again last in the debate.
§ LORD BELPERsaid, according to the practice of the other House, any Member who had spoken on the original Motion had a right to speak on an Amendment. 336 The strict rule was, that there was no right to speak twice on a Motion; but if an Amendment was moved, that Amendment was substantially a new Motion, and on that Motion, though a Member had already spoken, he would have a right to speak again. If their Lordships, however, were about to make a distinction, and to say that on a second Motion of a particular kind there should not be a right of reply, they would introduce eternal confusion into their debates.
§ LORD MONTEAGLEsaid, he understood the rule to be, that no one had a right to speak twice upon the same subject; but that if an Amendment was moved which was substantially another Motion, the person who made the original Motion was entitled to speak again.
LORD CAMPBELL, still maintaining his right, repeated that he was willing upon this occasion to forego it.
§ LORD WENSLEYDALEsaid, there was no doubt but that the noble and learned Lord was animated by a very proper desire to put an end to the nefarious traffic in indecent publications; but, at the same time, he (Lord Wensleydale) was of opinion with his noble and learned Friend near him (Lord Lyndhurst) that the common law, as it stood, was quite strong enough to deal with such offences. Any person exposing indecent prints was liable to be indicted for a misdemeanour. The extensive powers sought to be conferred upon the police by the Bill required grave consideration, and the definition of what was obscene was very uncertain. There was not a library in which books could not be found containing passages which a strict-dealing magistrate might consider to bring them within the operation of this Bill. The classic authors might be held to be obscene, and the possession of Lucian, Lucullus, or Juvenal, might expose the owners to the penalties which the Bill prescribed.
LORD WYNFORDadmitted that in works of merit to which reference had been made, there might be found some objectionable passages; but it would be absurd to suppose, that the possession of such books would render the possessors liable to punishment. Those works, including those of the immortal Shakspeare, were preserved, not on account of the exceptional passages which were objectionable, but for the noble and elevating sentiments which they inculcated.
LORD CAMPBELLsaid, he thought that the particular street to which he had 337 referred, but not named, would rejoice greatly upon learning that the cause of free trade in obscene publications had been upheld by such distinguished authorities. Notwithstanding the arguments of his noble and learned Friends opposite, he trusted their Lordships would not reject the Bill. He could not see why there should be any objection to allow the same means to be used to repress the abominable traffic in obscenity as were allowed to put down gaming-houses and for the seizure of smuggled goods. The noble and learned Lord who moved the Amendment had objected that the Bill, if passed, could permit interference with private picture-galleries. When the law was made stricter in order to put down gambling-houses, there might as well have been an outcry, "What will become of St. James's-street, of Brookes's, of White's, of Boodle's—there may be gambling in those respectable establishments, they may be complained of by the police, and Members of either House of Parliament may be taken before a magistrate and sent to the House of Correction." Another argument of the noble and learned Lord would, if correct, prevent any indictment being laid, for he said, "Who was to define what was obscene?" The language of the indictment was for selling or exposing obscene prints or books, and the question whether the pictures or books impugned were obscene or not was left to the jury to decide. The noble and learned Lord appeared to think that under the Bill private collections might be interfered with, but that was not so. The pictures in such collections were not intended for sale, but were kept for the owners' contemplation. There was a broad and marked distinction between such pictures as the noble and learned Lord had so graphically described, and the abominable prints which could only disgust him, which possessed no artistic merits, and which could only be regarded with aversion by every right-minded person. It was not against the masterpieces of Correggio that the Bill was levelled, but against the mass of impure publications which was poured forth on London, to the great injury of the youth of this country. If their Lordships would read the Bill a second time, he thought there could be no difficulty in introducing words in Committee to guard against any abuse which might be apprehended; but he cautioned their Lordships against a proceeding which 338 could not fail to shock the public feeling of the country.
§ EARL GRANVILLEsaid, he had no doubt that the evil of which the noble and learned Lord had complained was a very serious one, and that steps ought to be taken to put an end to it; but it was no less clear, after the statements made by other noble and learned Lords, that the Bill in its present shape would not effect the object in view—at least not without producing considerable inconvenience. The noble and learned Lord, however, had just stated that words might be introduced in Committee to put down the evil, but at the same time to obviate the difficulties which had been pointed out. Under those circumstances, he, for one, was inclined to vote for the second reading, reserving his right to consider the Amendments which might be proposed in Committee.
LORD BROUGHAMsuggested the propriety, after the statement of the Lord Chief Justice, whose opinion upon such a subject was entitled to great weight, of withdrawing the Amendment and allowing the Bill to go to the second reading.
§ Amendment (by leave of the House) withdrawn, and Bill read 2a.