Obscene Publications Act 1857
From The Art and Popular Culture Encyclopedia
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“We have in this country a free press, and, as the price of that incalculable boon we must be content to take the attendant evils. When, however, the liberty is so abused that common decency is infringed upon, and public morality gradually undermined, the law, especially as amended by Lord Campbell’s recent act, will interfere. It has done so just lately, and several of the Holywell Street shops were unceremoniously entered by the police, and large quantities of abominable books confiscated and burnt by order of the magistrates; but it is only in such flagrant cases as these that the law can interpose. The real remedy lies in the power of public opinion, in the enlightenment of the masses, and in the gradual improvement of popular taste.”--Pernicious Literature |
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The Obscene Publications Act 1857 (20 & 21 Vict. c.83), also known as Lord Campbell's Act or Campbell's Act, was a major piece of legislation in the United Kingdom of Great Britain and Ireland dealing with obscenity. For the first time, it made the sale of obscene material a statutory offence, giving the courts power to seize and destroy offending material. The Act superseded a 1787 Royal Proclamation by George III titled Proclamation for the Discouragement of Vice. The proclamation commanded the prosecution of those guilty of "excessive drinking, blasphemy, profane swearing and cursing, lewdness, profanation of the Lord's Day, and other dissolute, immoral, or disorderly practices". Prior to this Act, the "exposure for sale" of "obscene books and prints" had been made illegal by the Vagrancy Act 1824 but the publication of obscene material was a common law misdemeanour (the precedent set by R. v. Curl (1729) following the publication of Venus in the Cloister). The effective prosecution of authors and publishers was difficult even in cases where the material was clearly intended as pornography.
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Origins
Prior to this Act, whilst the "exposure for sale" of "obscene books and prints" had been made illegal in law, the publication of obscene material was treated as a common law misdemeanour (From the precedent set by R. v. Curl (1729) following the publication of Venus in the Cloister) and effectively prosecuting authors and publishers was difficult even in cases where the material was clearly intended as pornography.
The origins of the Act itself were in a trial for the sale of pornography presided over by the Lord Chief Justice, Lord Campbell, at the same time as a debate in the House of Lords over a bill aiming to restrict the sale of poisons. Campbell was taken by the analogy between the two situations, famously referring to the London pornography trade as "a sale of poison more deadly than prussic acid, strychnine or arsenic" (Perhaps the earliest known appearance of this ever-popular analogy; compare "I would rather give a healthy boy or a healthy girl a phial of prussic acid than this novel", describing The Well of Loneliness in 1928), and proposed a bill to restrict the sale of pornography; giving statutory powers of destruction would allow for a much more effective degree of prosecution.
The bill was controversial at the time, receiving strong opposition from both Houses of Parliament, and was passed on the assurance by the Lord Chief Justice that it 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." The House of Commons successfully amended it so as not to apply to Scotland, on the grounds that Scottish common law was sufficiently stringent.
Provisions of the Act
The Act provided for the seizure and destruction of any material deemed to be obscene, and held for sale or distribution, following information being laid before a "court of summary jurisdiction" (Magistrates' court. The Act required that following evidence of a common-law offence being committed - for example, on the report of a plain-clothes policeman who had successfully purchased the material - the court could issue a warrant for the premises to be searched and the material seized. The proprietor then would be called upon to attend court and give reason why the material should not be destroyed.
Critically, the Act did not define "obscene", leaving this to the will of the courts.
Later developments
Whilst the Act itself did not change, the scope of the work affected by it did. In 1868 Sir Alexander Cockburn, Campbell's successor as Lord Chief Justice, held in an appeal that the test of obscenity was "...whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall." This was clearly a major change from Campbell's opinion only ten years before - the test now being the effect on someone open to corruption who obtained a copy, not whether the material was intended to corrupt or offend.
Cockburn's declaration remained in force for several decades, and most of the high profile seizures under the Act relied on this interpretation.
In both 1959 and 1964, acts were passed in England and Wales with the same title as the 1857 act. As of 2008 these latter two Obscene Publications Acts are still in force, albeit as amended by more recent legislation.
Excerpt
"An act for more effectually preventing the sale of obscene books, pictures, prints, and other articles," after reciting "that it is expedient to give additional powers for the suppression of the trade in obscene books, prints, drawings, and other obscene articles."
Section 1. It shall be lawful for any metropolitan police magistrate or other stipendiary magistrate, or for any two justices, upon complaint made before them upon oath that the complainant has reason to believe, that any obscene books, &c. are kept in any house, &c., for the purposes of sale or distribution, exhibition for the purposes of gain, lending upon hire, or being otherwise published for purposes of gain, which complainant shall also state upon oath that one or more articles of the like character have been sold, distributed, exhibited, lent, or otherwise published as aforesaid, at or in connection with such place, so as to satisfy such magistrate or justice that the belief of the said complainant is well founded, and upon such justice being also satisfied that any of such articles so kept for any of the purposes aforesaid are of such a character and description that the publication of them would be a misdemeanor, and proper to be prosecuted as such, to give authority by special warrant to any constable or police officer into such house, shop, room or other place, with such assistance as may be necessary, to enter in the daytime, and, if necessary, to use force, by breaking open doors or otherwise, and to search for and seize all such books, papers, writings, prints, pictures, drawings, or other representations as aforesaid found in such house, shop, room, or other place, and to carry all the articles so seized before the magistrate or justices issuing the said warrant, or some other magistrate or justices exercising the same jurisdiction; and such magistrate or justices shall thereupon issue a summons calling upon the occupier of the house or other place, which may have been so entered by virtue of the said warrant, to appear within seven days before such police stipendiary magistrate or any two justices in petty sessions for the district, to show cause why the articles so seized should not be destroyed; and if such occupier or some other person claiming to be the owner of the said articles shall not appear within the time aforesaid, or shall appear, and such magistrate or justices shall be satisfied that such articles, or any of them, are of the character stated in the warrant, and that such, or any of them, have been kept for any of the purposes aforesaid, it shall be lawful for the justices, and they are hereby required, to order the articles so seized, except such of them as they may consider necessary to be preserved as evidence in some further proceeding, to be destroyed at the expiration of the time hereinafter allowed for lodging an appeal, unless notice of appeal as hereinafter mentioned [s. 4] be given, and such articles shall be in the mean time impounded; and if such magistrate or justices shall be satisfied that the articles seized are not of the character stated in the warrant, or have not been kept for any of the purposes aforesaid, he or they shall forthwith direct them to be restored to the occupier of the house or other place in which they were seized."
See also
- Obscene Publications Acts
- Erotic literature
- Hicklin test
- Thomas Allinson
- HL Deb 25 June 1857 vol 146 cc327-38
- British censorship
