2) The Invention of Obscene Libel – Early Law 1725-1868
William Caxton set up England’s first printing press in the precincts of Westminster Abbey in Oct 1476, but for about sixty years the authorities were not overly concerned, until the invention’s subversive potential for promoting social and political unrest became steadily more apparent. In 1538 Henry VIII issued the first Licensing Decree to regulate the country’s presses (formally implemented by Elizabeth in 1559), and this system remained in place (in one form or another) until 1695 when – having become unenforceable in practice – it finally collapsed altogether. However during this early period the chief targets of licensing were Heresy and Sedition (fundamentally intertwined after the Reformation) and ‘bawdy books’ – whilst considered a most regrettable error of taste – were not judged any real threat to the social order.
This laissez-faire attitude began to change following the Restoration, when Charles II’s judges deliberately took control of regulating disorderly conduct (now deemed a temporal rather than spiritual offence) away from the increasingly redundant Church courts. The breakthrough case ironically involved one of the king’s closest friends, the roistering poet Sir Charles Sedley. In June 1663 Sedley got drunk in the Cock Tavern in Covent Garden, and (accompanied by two comrades) climbed onto the pub’s balcony to hurl bottles (‘pist in‘) down onto the gathering crowd below, then finally stripped naked and ‘with eloquence preached blasphemy to the people’. Several windows were broken in the ensuing free-for-all, and Sedley’s belated attempts to have himself tried before the more lenient church courts were thus easily overruled. He was heavily fined and a vital precedent had been set, though it would be another 64 years before it was successfully invoked against the printed word.
The first attempt in 1707 failed because the Appeal Court judges refused to acknowledge a parallel. James Read had published Fifteen Plagues of a Maidenhead, a pamphlet containing a set of comical poetic variations on the theme that chastity was just another form of malnutrition. Mr Justice Powell, quashing Read’s lower-court conviction, reasoned that “this is for printing bawdy stuff that reflects on no person, and a libel must be against some particular person or persons, or against the government. It is stuff not fit to be mentioned publicly. If there is no remedy in the spiritual court, it does not follow there must be a remedy here. There is no law to punish it: I wish there were, but we cannot make law. It indeed tends to the corruption of good manners, but that is not sufficient for us to punish. As to the case of Sir Charles Sedley, there was something more in that case than shewing his naked body in the balcony…” Twenty years later however, the King’s Bench abruptly changed its mind.
Edmund Curll (the two-faced figure centre-right) in his printshop, Oct 1732
Edmund Curll (c.1675-1747) was really more of a pamphleteer and satirist in the old Grub Street tradition than a fully-fledged pornographer. He ran a bookshop in Holywell Street (now the Aldwych) which sold all manner of publications scandalous and serious, and his name even at the time had become a byword for literary hucksterism. Both Alexander Pope and Daniel Defoe separately raged against his insolently unrepentant conduct (and regular satirical attacks), but Curll possessed a certain low cunning and would probably have escaped official censure altogether had he been more politically astute. The House of Lords had twice reprimanded him for printing unauthorised works dealing with matters of state, when in 1725 he was arrested for publishing new translations of both Venus in the Cloister and A Treatise on the Use of Flogging in Venereal Affairs. Curll argued that neither work was obscene (citing Venus’s original uncontroversial appearance in 1683), but had made powerful enemies. There was a lengthy adjournment while the judges tried to decide whether Justice Powell’s earlier pronouncement was sound, and – temporarily at liberty – Curll made the mistake of using the time to publish the memoirs of John Ker (whom he had earlier met in prison), a notorious government spy during the reign of Queen Anne. He was promptly re-arrested for sedition, and the Venus trial was resumed with only one outcome in mind.
The trial judges over-ruled Read’s case, and established Sedley as an authority for legislation against conduct “which tends to corrupt the morals of the King’s subjects”. One judge, Justice Fortescue (who plainly had some sympathy with Venus’s anti-Catholicism) demurred: “There should be a breach of the peace, or something tending to it, of which there is nothing in this case”. But during a further adjournment the obstinate Fortescue was replaced by another judge lacking such qualms and in 1727 Curll was convicted on all counts and fined a whopping £43-13s-4d, the Common Law offence of Obscene Libel being created in the process (the judges arguing that the original Latin ‘libellus’ here just meant ‘little book’). Part of the sentence was an hour in the pillory at Charing Cross (which could prove lethal if you were unpopular), but Curll typically had a broadsheet distributed the same morning claiming he had only printed Ker’s memoirs out of loyalty to the (much-loved) old Queen. Far from pelting him with excrement, the cheering mob carried him shoulder-high to the nearest tavern.
Venus in the Cloister’s co-defendant. 1725
For the remainder of the 18th century the new law was quite rarely invoked however, although pornography was certainly flourishing (Fanny Hill, for example, was only belatedly prosecuted a full year after it first appeared) . The real spur was the formation of the Society for the Suppression of Vice in 1802, who pursued private prosecutions with a fanatical zeal – between 1802 and 1857 they instituted 159 separate proceedings (mostly against the denizens of Holywell Street), all but five of which were successful. Some jeered at their hypocritical motivations – Sydney Smith infamously dubbed them the “Society for suppressing the vices of those whose incomes do not exceed £500 per annum” – but they encountered little official opposition, as the publications they were targeting (some of which we have already mentioned) were so self-evidently worthless. Nevertheless they had limited success in the battle against dirty books, due (as the Society itself bitterly complained) to the fact that there was no reward involved for those selfless individuals bringing offences to light. Enforcement of the law required an indictment against the publisher, and – as the latter were naturally on their guard – evidence was difficult to obtain, mostly depending on spies and informers. Under the Common Law, stocks could not be seized, and even if a shopkeeper were successfully prosecuted and imprisoned, his wife would often continue the business until he was at liberty to resume it. Some significant change in the law, the Society argued, was necessary to combat the burgeoning threat, and fortunately an influential legal figure was on hand to provide one.
Who were the original targets of the Society’s diligent efforts? George Cannon (1789-1854) was perhaps the first fully-fledged English pornographer, initially publishing bawdy anti-establishment parodies and satires but by 1830 well into the hard stuff, prosecuted for a French-language edition of De Sade’s Juliette (a handful of representative passages had to be specially translated for the jury, and their reaction to these is not hard to imagine). Thereafter (perhaps influenced by the Marquis) he seems to have specialised in flagellation, with titles like The Birchen Bouquet, Exhibition of Female Flagellants, Venus School-Mistress and The Adventures of Sir Henry Loveall. But lest we judge him too harshly, Cannon’s radical politics meant he also acted as lawyer for the anti-slavery campaigner Robert Wedderburn and may well have drafted some of the latter’s firebrand polemics. Following George’s death his widow carried on the business for another decade or so, until she was killed in a house fire about 1864.
By the time of Cannon’s death the biggest Victorian pornographer of the lot was in his prime. William Dugdale (1800-1868) was born in Stockport, son of devout Quakers. Aged 18 he moved to London to begin working for the publisher William Benbow (himself regularly prosecuted for obscenity) and – still a teenager – was implicated in the Cato Street Conspiracy of 1819 (to blow up the entire government a la Guy Fawkes – betrayed by informers, the plot’s ringleaders were all executed). Apparently unfazed by this brush with the hangman, Dugdale set up on his own in 1822 (in the old maze of courts and alleys around Holywell Street) and – soon joined by his brothers Thomas and John – spent the rest of his life either publishing pornography or serving lengthy prison sentences for it (he died in Clerkenwell gaol in Nov 1868, apparently depressed at having no access to books or pen & paper). His chief creative henchman was the indefatigable author / translator / bibliophile James Campbell Reddie (1807-1878), himself a dedicated collector of erotica.
William Benbow caricatured in Punch, 1848
In 1857 a Bill to restrict the sale of poisons was going through the House of Lords, at the same time that the Lord Chief Justice, Lord Campbell, was presiding over yet another of Dugdale’s trials. Campbell excitably linked the two events in notably unrestrained language, and proposed a new Bill to control Obscene Publications. He was less concerned with punishing Dugdale & co. than simply eradicating their wares, and the eventual Act of Parliament that emerged chiefly established a formal procedure for the destruction of obscene literature – the key term ‘obscene’ initially remaining undefined. Magistrates were empowered to issue search warrants on being shown a suspicious book, and the prosecutor could then raid the relevant premises and seize whatever stock he found, bringing the resulting haul back before the magistrate who could order its wholesale destruction if he thought publication a misdemeanor. This was an obvious catch-22, since very few magistrates were likely to concede their original warrants had been mistakenly issued. However the proceedings were not strictly criminal, as no penalties applied beyond loss of the stock – in order to put a publisher in prison, the prosecutor had to give him the option of trial by jury, and prove the obscenity of his books beyond reasonable doubt.
The Bill encountered strong opposition in Parliament, several Lords suggesting that the existing law was entirely adequate and fearing for the protection of genuine art and literature. In an attempt to mollify his critics, Campbell offered assurances that the measure was aimed “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”. But, as noted, a formal definition of just what Obscenity actually WAS still didn’t exist, and many early trials revolved around such old chestnuts as Aristotle’s Masterpiece (a C17th sex-manual / midwifery guide) and Paul Pry (a scurrilous true-crime periodical). Then, in 1868, an opportunity to finally clarify matters helpfully popped up in the Midlands.
A Wolverhampton metalbroker and ardent Protestant named Henry Scott was charged with distributing copies of an anti-Catholic pamphlet entitled ‘The Confessional Unmasked: Shewing the depravity of the Romish priesthood, the Iniquity of the Confessional, and the questions put to females in Confession’. The local magistrates (one of whom was named Hicklin) ordered the remaining stock be destroyed, but Scott appealed to Quarter Sessions on the grounds that he had not kept the pamphlets for personal gain, and his motives in publishing them were entirely innocent. The Recorder accepted this argument and reversed the decision, ordering the seized pamphlets be returned. But the case was referred up to the Queen’s Bench who decisively overturned the Recorder and reaffirmed Hicklin’s original judgement, commenting that intention was irrelevant if obscenity was proven. Lord Chief Justice Sir Alexander Cockburn also took the opportunity during his summing up to at last formally define the loaded term under discussion: “I think the test of obscenity is this: whether the tendency of the matter charged 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 test (slightly reworded) is still in force today, and we can now examine the sequence of early trials that followed on from it.
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(3) To Deprave and Corrupt – Key Trials (i) 1868-1954