142 



NOTES AND QUERIES. 



t2«>« S. No CO., Feb. 21. '67. 



l)ut for me 'tis sufficient to say I don't find any case 

 wherein they were ever prohibited in such a Cause : In 

 tlie reign of King Charles the Second there was a filthy run 

 of obscene writings, for which we meet with no prosecu- 

 tions in the temporal courts ; and since these were things 

 not fit to go unpunished, it is to be supposed that my 

 Lords the Bishops aninindverted upon them in their 

 Courts. In the case of the Queen v. Read, 6 Ann. in 

 B. R. there was an information for a libel in Writing an 

 obscene book called Tlie Fifteen Pleagues of a Maiden- 

 head, and after conviction it was moved in arrest of Judg- 

 ment, that this was not punishable in the Temporal 

 Courts; and the opinion of Chief Justice Holt was so 

 strong with the objection that the prosecutor never 

 thought fit to stir it again," 



Tlie Attorney General then insisted " that it was 

 an offence at Common Law, as it tended to corrupt 

 the morals of the King's Subjects, and was against 

 the peace of the King. Peace includes good order 

 and government, and that peace may be broken 

 in many instances without an actual force. 1. If 

 it be an act against the constitution or civil go- 

 vernment : 2. If it be against religion : and, 3. 

 If against morality. Under the first head fall all 

 the cases of seditious words or writings. Secondly, 

 It is a libel if it reflects upon religion, that great 

 basis of civil government and Society ; and it may 

 be both a spiritual and temporal offence ; and he 

 then referred to the case of one Hall then in Cus- 

 tody on a conviction for a libel, entitled A Sober 

 Reply to the Merry Argument about the Trinity. 

 3. As to morality. Destroying that is destroy- 

 ing the peace of the government, for govern- 

 ment is no more than Public order, which is 

 morality. My Lord Chief Justice Hale used to 

 say, Christianity ia part of the Law, and why not 

 morality too ? I do not insist that every immoral 

 act is indictable, such as telling a lie or tlie like, 

 but it is destructive of morality in general ; if it 

 does or may affect all the King's subjects, it then 

 is an offence of a public nature. And upon this 

 distinction it is that particular acts of fornication 

 are not punishable in the temporal Courts, and 

 bawdy houses are." 



After much more argument in this strain, the 

 Lord Chief Justice said, "I think this is a case 

 of very great consequence, though if it was not 

 for the case of the Queen v. Read, I should make 

 no great difficulty of it. Certainly the spiritual 

 Court has nothing to do with it if in writing : and 

 if it reflects on religion, virtue, or morality, if it 

 tends to disturb the civil order of Society, I think 

 it is a temporal offence. I do not think libcllus 

 is always to be taken as a technical word. Would 

 not trover lie de quondam libcllo intitidaf the New 

 Testament, and does not the Spiritual Court pro- 

 ceed upon a libel ?" 



Judge Fortescue owned this to be a great 

 offence, but knew of no Law by which the Court 

 could punish it. Common Law is common usage, 

 and where there is no law there can be no transgres- 

 sion. At Common Law, drunkenness, cursing, and 



swearing were not punishable : and yet he did not 

 find the Spiritual Court took notice of them. This 

 is but a general solicitation of chastity, and not 

 indictable. 



Judge Reynolds lamented if this is not pun- 

 ishable. He agrees there may be many instances 

 where acts of immorality are of Spiritual cogni- 

 zance only : but then those are particular acts 

 where the prosecution is pro salute animce of the 

 offender, and not where they are of a general 

 immoral tendency : which he took to be a reason- 

 able distinction. 



Judge Probyn inclined to think the offence 

 punishable at Common Law as an offence against 

 the Peace, in tending to weaken the bonds of civil 

 society, virtue, and morality. But it being a case 

 of great consequence, it was ordered to stand 

 over for a further argument. 



The Report concludes as follows : — 



" And this term Page J. being come into the King's 

 Bench in the room of Justice Fortescue, it was to have 

 been spoke to by Mr. Solicitor General and mj-self. But 

 Curl not having attended me in time, I acquainted the 

 Court I was not prepared : and my want of being ready 

 proceeding from his own neglect, they refused to indulge 

 him to the next term. And in two or three days they 

 gave it as their unanimous opinion, that this was a tem- 

 poral offence. They said it was plain the force used in 

 Sedley's case was a small ingredient in the Judgment of 

 the Court, who fined him 2000Z. And if the force was all 

 thej' went upon, there was no occasion to talk of the 

 Court being censor morum of the King's Subjects. Thej' 

 said if Read's case was to be adjudged, they should rule it 

 otherwise ; and therefore in this case they gave Judgment 

 for the King. And the defendant was afterwards set in 

 the pillory, as he well deserved." 



Who, after this, could doubt that Curll was 

 " set in the pillory as he well deserved," for pub- 

 lishing the books in question ? — or doubting, would 

 not have his doubts set at rest by the following 

 note, which is appended to the Report of the Pro- 

 ceedings against him, as given in The State 

 Trials : — 



" This Edmund Curll stood in the pillory at Charing 

 Cross, but was not pelted or used ill ; for being an artful, 

 cunning (though wicked), fellow, he had contrived to 

 have printed papers dispersed all about Charing Cross, 

 telling the people he stood there for vindicating the 

 memory of Queen Anne ; which had such an effect on the 

 mob, that it would have been dangerous even to have 

 spoken against him ; and when he was taken down out 

 of the pillory, the mob carried him off, as it were in 

 triumph, to a neighbouring tavern." — State Trials, xvii. 

 p. 160. 



After so positive a statement, fiirst by Strange 

 in his Reports, and afterwards by the editor of 

 the State Trials, that Curll was punished by being 

 placed in the pillory for the offence charged in 

 the indictment to which we have referred, who 

 could doubt that the fact was as stated ? 



Yet whoever should' be sceptical enough so to 

 doubt would find, upon inquiry, that he was jus- 

 tified in so doing. Curll was not put in the pil- 



