REX v THE HEAD MASTER OF ETON
Sep 29, 2014Posted by on
LORD CAMPBELL’S ACT
AT Windsor to-day, before a full Bench of magistrates, a serious charge was made against the Head Master of Eton, a clergyman, who appeared to feel his position acutely. Police-Constable Boot gave evidence in support of the charge, which was preferred under the – Obscene Publications Act, 1857, commonly known as Lord Campbell’s Act.
Constable Boot: On the fifth of this month, acting under instructions, I proceeded with a special warrant to the premises known as Eton College and made a thorough search of the same. I found and seized there a number of books which in my opinion were of an obscene character. Defendant admitted that the said books were kept on the premises to be ‘sold, distributed, lent, or otherwise published’ within the meaning of the Act, to the students under his charge, who are from thirteen to nineteen years of age, your worship.
The Attorney-General: Have you carefully perused the said books?
Constable Boot: I have.
Sir Ethelred Rutt (for the defence) : Your worship, I have here a hundred and forty-nine professors and schoolmasters who are prepared to go into that box and swear that the volumes in question have not the character suggested.
The Chairman: What is the use of that? The defendant himself is a schoolmaster. In a charge of burglary the evidence of a hundred and forty-nine burglars would not persuade the Court that the prisoner was incapable of house-breaking.
Sir Ethelred: But, your worship–
The Chairman: We cannot admit this evidence. The question of obscenity is for the Court to decide.
Sir Ethelred: But, your worship, you have admitted the evidence of the constable.
The Chairman: That is different.
Sir Ethelred: How?
The Chairman: Do not be impertinent, Sir Ethelred. The constable is not a schoolmaster.
Sir Ethelred: Your worship, it is a principle of English law that an accused person is assumed to be innocent until he is proved to be guilty. In this case it appears that the defendant is assumed to be guilty, since he is summoned to show cause why the books in question should not be destroyed; yet he is not permitted to prove himself innocent, for the evidence of ignorant persons is admitted against him and the evidence of educated persons is not admitted in his defence. I protest.
The Bench: Sir Ethelred, you may protest.
Counsel then addressed the Bench.
The magistrates withdrew and did not return for several hours.
On their return The Chairman said: This is a very painful case. During our absence we have perused, with growing interest and disgust, a number of passages in the books complained of, and in particular a book called The Classical Dictionary, which is written in English. Many of the books are written in a foreign language with which we are not acquainted; some of these are accompanied by English translations, and some are not; but from the character of the former we are entitled to form certain conclusions as to the character of those volumes which no one has yet been bold enough to put into English.
The Classical Dictionary is a book of six hundred and forty pages and contains a very large number of legends or stories concerning so-called classical or mythological figures. I am glad to say that no one on this Bench has had a classical education, and we were therefore able to approach these volumes with an open mind. The magistrates on my right and left include a baker, a brewer, a farmer, and a distinguished banker, and, though none of us are professors or schoolmasters, Sir Ethelred, you will admit, I think, that we are as well able as other men to say what is fit and proper to be read by young persons.
Sir Ethelred: Certainly, your worship.
The Chairman: Now we are informed that the definition of obscenity laid down by Lord Cockburn in the case of R. v. Hicklin was as follows: ‘I think the test . . . is 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.’ The last words are important. Not only the nature of the work but the circumstances of its publication, including its price, must be taken into account. A treatise on the passion of love, philanthropically intended and decently expressed, might be most unsuitable to be read by young persons, and if it were hawked in the streets for twopence might properly be condemned under the Act, but not if it were sold at a high price by reputable booksellers, in which case it would be most unlikely to fall into the hands of young persons¹. But in the present case the publications complained of have been deliberately purchased and kept for the consumption of young persons, and young persons drawn exclusively from the aristocracy and the governing classes, whose duty it will be in future years to set an example to their less fortunate countrymen, to mould their minds and dictate their actions. Any conduct therefore which tends to corrupt and deprave those young persons must be held especially culpable.
We find unanimously that these volumes have such a tendency. The legends in The Classical Dictionary have a pagan origin and are largely concerned with pagan gods; and their amorous adventures and barbaric standards of behaviour form strange subjects of study for the pupils of a Royal College situated under the walls of a Royal Castle whose august occupant is head of the Established Church. We have read with particular repugnance the record of the alleged god, Zeus, whose habit it was to assume the shape of swans, bulls, and other animals, and, thus disguised, to force his unwelcome attentions upon defenceless females of good character. The case of the woman Leda, if it were published in the newspapers to-day, would arouse . the indignation of every right-thinking Englishman; and we have no doubt that our leaders of thought would mobilize the conscience of the nation to prevent the repetition of such offences. But in these books we learn that, although the unfortunate woman became the mother of two eggs, the celestial profligate was permitted to proceed without public protest to the odious case of the woman Europa, in which the abductor took the shape of a bull. No moral reproof is founded on these stories, no improving lesson is drawn from them; on the contrary, they are related with a callous indifference which, coupled with the fact that the delinquent is of a divine or pseudo-divine character, must tend to suggest to the susceptible imagination of the young that such behaviour is defensible or even desirable. The boys of Eton must not be encouraged to dress themselves as swans or wild beasts for the purpose of idle and illicit flirtation; but that can be the only effect of these deplorable anecdotes. Indeed, we learn without surprise that the Captain of the Boats was recently expelled for entering the Matron’s bedroom disguised as a brown owl.
I could mention many other passages, only less disgraceful in that they relate the moral lapses of mortal men and not of gods-the case, for example, of the man Oedipus, who killed his own father and married his own mother. Then there is the revolting story of the woman Medea, who committed or was accessory to a number of atrocious murders. This woman, by false representations, induced the daughters of Pelias to cut their father in pieces and boil him; she sent to a female rival a poisoned garment which burned-the unfortunate woman to death; she murdered her own brother and herself cut him into fragments; she killed and (according to one account) devoured her own children; but, so far from paying the due penalty of her crimes, she was then conveniently conveyed to safety in a chariot drawn by winged dragons. Strange food, this, for the tender minds of our growing aristocracy. It must not be forgotten that the mind Can be ‘corrupted and depraved’ in more than one direction; tales of parricide, fratricide, and infanticide are ‘obscene’ in the truest sense of the word; and all through these legends there runs a strain of violence and cruelty and bloodthirsty vengeance which is as harmful to the reader as the strain of irregular passion. It is idle for us to urge upon the newspapers and the makers of films the duty of reticence in their treatment of crimes and offences if our places of education are permitted to discuss them without restraint; and it may well be-that the prevalent appetite of the poor for tales of murder and wrongdoing has its real origin in the schools and colleges of the rich.
We have been asked by counsel to take into account the innocent motives of the defendant, the artistic merits of the works in question and the long tradition which has admitted them as proper reading for the young. It was decided in the year 1868 that innocence of motive is no defence to a charge under the Act; and neither art nor custom can, in this Court at least, excuse an offence against morals. We find that these books are corrupting and we order them to be destroyed. Fortunately we have only been called upon to consider a fraction of the so-called ‘classics’; but after what we have seen we shall recommend to the proper authorities that a thorough survey be made of the whole body of classical literature in order that our schools and colleges may be made safe for aristocracy. The defendant is severely censured and will pay the costs of the prosecution².
¹See Chief Constable of Burbleton v. Woolworlh (1929), in which defendants published a sixpenny edition of the Plays of Shakespeare. The magistrates ordered it to be destroyed.
²In a later case, Rex v. Squire., the defendant, a street bookmaker, attributed his downfall to a volume of Catullus which he had picked up in the streets of Windsor.
The Obscene Publications Act was, very properly, designed to punish and prevent the distribution of intentionally and obviously corrupting matter-such literature and pictures as are thrust upon the traveller’s attention in many Continental cities and most foreign ports. Without claiming any special licence for pornography masquerading as ‘literature’, it may be said that books which have not the same obvious intention and sole justification ought not to be judged and condemned (as in practice they now are) by the same standards and procedure as ‘feelthy pictures’ or ‘smutty French books’.
‘Intention’ should be the test (at least in inflicting punishment): and it should not be more difficult for the Courts to establish the presence or absence of a guilty ‘intent’ than it is for any other crimes. In a recent prosecution under the Act a book had been published a book had been published without protest or comment for four years: it was found in a public library by a sensitive inhabitant of Lancashire and reported to the police. Savage fines, amounting to £400 were inflicted. Certain passages in the book were ‘frank’ and might easily shock the squeamish, though no one, man or boy, was likely to be corrupted by it – which is the point that matters. Nor had the book, it was clear, a pornographic or corrupting intention. Yet, as the law and practice are today, it is accidental whether the author becomes a best-seller or a criminal: and many years after a publication applauded by decent literary critics he may be condemned as a beast on the evidence of a constable, provoked by a muck hound. EDITOR
Punch, 8 January 1930
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