" OBSCENITY " AND THE LAW
I SUPPOSE that I am in most respects a normal person, and that my feelings do not differ from those of most normal persons when I open the newspaper and see that yet another boo' k has been " condemned." As often as not, no doubt, it is a bad book ; and the author is not sorry to be stigmatised as an " advanced " writer by a magistrate who, being more than sixty years old, must (of course) be out of touch with modern thought ; and the publishers are a firm who specialise in " that kind of book," and can well afford to pay fines incurred in respect of one of them out of profits made by publishing a dozen others. Yet even when all these circum- stances are, or may be presumed to be, present, I cannot help feeling puzzled, and I think most ordinary people share my feeling. What is the law concerning obscenity ? How does it work ?
And I feel more puzzled still, and something else besides, when I observe (as is not infrequently the case) that the book in question was not a fourth-rate novel, but a work which I have myself read and admired as a piece of literature, or a serious study of a social or a moral problem. On what principle, I ask myself, is it determined whether Mr. Havelock Ellis, for instance, should receive the Order of Merit for his work, or should be ordered to pay a fine of, say, five hundred pounds ?
. After reading Mr. Craig's book, I am not surprised that I feel puzzled, not surprised that sometimes I feel indignant. For the law concerning obscene publications is obscure, and in practice it leads to very great anomalies.
That the law should be obscure to the layman, and that some anomalies should occur in its operation, is inevitable. The matter is one on which obviously it is very difficult to legislate ; and frequent judicial interpretations of any enactment on the subject must lead to a state of the law which it is impossible to summarise in a few clear sentences, and to the drawing of a " border-line " which is such that it will often be impossible to say whether a given case falls on one side of it or the other. All sensible people will agree that some law must exist to deal with the matter ; just as there must exist some law to deal with (say) indecent exposure of the person. Most sensible people will realise that as long as the world is what it is a perfectly satisfactory law- is impossible—it is just the kind of subject on which, with the best will in the world, the most enlightened legislator cannot frame a form of words which will not sometimes have unforeseen and undesired effects.
People who get excited about this topic are not-always people who have thought carefully or clearly about it ; it is not always clear, for instance (even, one suspects, to themselves) whether they are attacking the law or its administration ; not does it always appear that they knot what the law is or have considered how difficult it would be sztisfactorily to amend it.: - Mr. Craig does not get excited; he keeps his head ; he has examined-the law on the subject, and he sets it down clearly, with copious examples and full references. He does not suppose either that the law in this sphere is perfectible, or that we could get along without any law at all. He does not, in my opinion, write well, and his case might, I think, be better put together and presented ; but he is clear, full, sensible, moderate, and compelling ; and apart from these merits, his book is useful simply as a book of reference.
- The Act under which these prosecutions take place is Lord Campbell's Act of 1857, and its aim, as explained by Lord Campbell himself in Parliament, was to suppress " 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." Mr. Craig asks -for nothing more than the application of this test in determining whether a work is to be condemned under the Act as " obscene." It seems a very moderate demand. The trouble is that in a case heard not-long after the passing of the Act, Cockburn C.J. judicially defined " obscenity " as matter tending " to deprave and corrupt those whose minds are open to such immoral influences "—a definition which is still authoritative, which gives a wide scope for fantastic decisions from the Bench, and which covers many of the Greek, Latin, and English classics, the Bible, and many a work of literature which is on the shelves of most educated persons. Indeed, it appears to me that it covers every book of which it could be said that someone had been depraved and corrupted by it.
- If Cockburn's definition can be superseded, so much the better. Mr. Craig suggests that the best hope of establishing Campbell's definition is by means of an appeal to the House of Lords. It may be doubted—apart from the difficulty of getting from that tribunal a decision on a point of criminal law —whether the House would take advantage of an opporttinity of laying down a proposition which was wider than it had to be in order to deal with the case actually before it.
The prospect of legislation is hardly as bright. Probably the only enlightened party in this matter is the Conservative party ; but it seems improbable that the Government would give its support to a Bill on the lines which Mr. Craig would wish for.
For once, America has led the way : there have been several decisions of the Supreme Court which are models of enlighten- ment and lay down the law as sensible people would like to have it here. As long as it continues here in its present state, normal persons will continue to be puzzled and shocked when they read about its operation. Literature will suffer a little, but not much ; Science will suffer more, and students like Havelock Ellis, a great man who has deserved well of his country, will still be treated in the same way as smugglers of pornography ; society will suffer most, because knowledge which is essential to its happiness and well-being (knowledge, for example, connected with " birth-control ") will be suppressed, and C. nse who advocate or assume in print an enlightened attitude_ in the matter will be liable to be stigmatised as criminals of a
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