Cockburn, C.J., Blackburn, Mellor, and Lush, J.J.

“ Then comes the question whether, upon those grounds, the publication was not indictable, and I come to the conclusion that the recorder was wrong, and that it would be indictable. I take the rule of law to be, as stated by Lord Ellenborough in Rex v. Dixon, [29] in the shortest and clearest manner: "It is a universal principle that when a man is charged with doing an act" (that is a wrongful act, without any legal justification) "of which the probable consequence may be highly injurious, the intention is an inference of law resulting from the doing the act." ”

“ An obscene work is here published, and a work the obscenity of which is so clear and decided, that it is impossible to suppose that the man who published it must not have known and seen that the effect upon the minds of many of those into whose hands it would come would be of a mischievous and demoralizing character. ”

“ Now, I take it for granted that the magistrates themselves were perfectly satisfied that this work went far beyond anything which was necessary or legitimate for the purpose of attacking the confessional. I take it that the finding of the recorder is (as I suppose was the finding of the justices below) that though one half of the book consists of casuistical and controversial questions, and so on, and which may be discussed very well without detriment to public morals, yet that the other half consists of quotations which are detrimental to public morals. ”

“ Although many vicious and immoral acts are not indictable, yet, if they tend to the destruction of morality in general, if they do or may affect the mass of society, they become offences of a public nature. ”

“ But it is not to be said, because there are in many standard and established works objectionable passages, that therefore the law is not as alleged on the part of this prosecution, namely, that obscene works are the subject-matter of indictment; and I think the test of obscenity is this, 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 intent and the act must both concur to constitute the crime." In Reg. v. Sleep [8] in which an indictment was laid under 9 & 10 Wm. 3, c. 41, s. 2, for having been in possession of naval stores, and the jury negatived that the prisoner knew that the stores were marked with the broad arrow, Cockburn, C.J., said, "It is a principle of our law that to constitute an offence there must be a guilty mind, and that principle must be imported into the statute, although the Act itself does not in terms make a guilty mind necessary to the commission of the offence." ”

“ I think the old sound and honest maxim, that you shall not do evil that good may come, is applicable in law as well as in morals; and here we have a certain and positive evil produced for the purpose of effecting an uncertain, remote, and very doubtful good. ”

“ It appears to me the only good that is to be accomplished is of the most uncertain character. This work, I am told, is sold at the corners of streets, and in all directions, and of course it falls into the hands of persons of all classes, young and old, and the minds of those hitherto pure are exposed to the danger of contamination and pollution from the impurity it contains. ”

“ Johnson, [13] says, alluding to the attempt to prosecute him in the King's Bench for his "Progress of a Divine," as being an obscene libel: "It was urged in his defence, that obscenity was criminal when it was intended to promote the practice of vice; but that Mr. Savage had only introduced obscene ideas with the view of exposing them to detestation, and of amending the age by showing the deformity of wickedness. ”

“ On this principle it is that the defence of unlicensed printing has always been based. The opposite principle is that of the Church of Rome. Thus in Hallam's Literature of Europe, part ii., c. 8, s. 70, it is said, "Rome struck a fatal blow at literature in the index expurgatorius of prohibited books. ... ”