Regina v. Hicklin, L.R. 2 Q.B. 360 (1868)

In the early nineteenth century, the Society for the Suppression of Vice in Great Britain mobilized to control pornography and to promote morality through vigorous enforcement of existing laws and adoption of new ones. In 1857, Parliament enacted the Obscene Publications Act, commonly referred to as ‘‘Lord Campbell’s Act’’ after John Campbell, the Chief Justice of the Queen’s Bench, who as a member of the House of Lords had introduced the bill. Before the law’s passage, Britain had relied on local courts and the common law offense of ‘‘obscene libel’’ to regulate indecent or immoral material. The new statute brought Parliament into the regulation of pornography and centralized public authority over the control of ‘‘obscene books, pictures, prints, and other articles.’’ In particular, the law empowered local magistrates to confiscate and destroy material deemed to be obscene. Simple possession was sufficient for prosecution under the law in addition to selling or making it available to others, but as Lord Campbell assured Parliament only material ‘‘corrupting the morals of youth and of a nature calculated to shock the common feelings of decency in a well regulated mind’’ would fall under the law’s ambit.

Regina v. Hicklin’s significance rests in the definition or test of what constitutes ‘‘obscene’’ material by the Queen’s Court. The case involved a salacious anti- Catholic pamphlet and the trial had as much to do with quelling political unrest as protecting the morals of British citizens. The tract, ‘‘The Confessional Unmasked: Shewing the Depravity of the Romanish Priesthood, the Iniquity of the Confessional and the Questions Put to Females in Confession,’’ purported to expose what Catholic priests talked about with young women during their confessions. The tract was part of a wider campaign led by a militant Protestant, William Murphy, who stoked the anti- Catholic sentiments of the working and lower-middle classes that erupted in Irish–Protestant riots during 1867–1869. A local magistrate ordered the seizure of the pamphlets; the order was appealed to Benjamin Hicklin, a Recorder’s Court judge, who reversed the decision and suspended the order. Hicklin did not disagree that the tract was licentious; however, he declined to suppress the pamphlet, despite its indecency, because of the tract’s political purposes.

Three Queen’s Bench judges affirmed the magistrate’s decision. Alexander Cockburn, who succeeded Lord Campbell as chief justice of the Queen’s Bench, speaking for the court announced what became known as the Hicklin rule. In Cockburn’s formulation, ‘‘The test of obscenity 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 implications of the decision, because the pamphlet’s ‘‘obscene’’ aspects were subsumed by its larger political purposes, were that material could be declared obscene if isolated parts rather than the publication taken as a whole contained immoral or indecent material. The ruling further meant that the test depended on the impact the material would have on the most susceptible audience, not the average reader. The Hicklin test entered American legal doctrine in the Court of Appeals case, United States v. Bennett (1879), and its place was consolidated by the Supreme Court in Rosen v. United States (1896).

ROY B. FLEMMING

References and Further Reading

  • Kendrick, Walter. The Secret Museum: Pornography in Modern Culture. Berkeley: University of California Press, 1996.
  • Marcus, Steven. The Other Victorians: A Study of Sexuality and Pornography in Mid-Nineteenth Century England. New York: Basic Books, 1966.
  • Rembar, Charles. The End of Obscenity: The Trials of Lady Chatterley, Tropic of Cancer, and Fanny Hill. New York, Random House, 1968.
  • Robertson, Geoffrey. Obscenity: An Account of Censorship Laws and Their Enforcement in England and Wales. London: Weidenfeld and Nicolson, 1979.

Cases and Statutes Cited

  • Regina v. Benjamin Hicklin, Law Reporter 3 Queen’s Bench 360 (1868).
  • Rosen v. United States, 161 U.S. 29 (1896).
  • United States v. Bennett, 24 F.Cas. 1093 (1879).

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