facts set forth or the opinions expressed are merely objectionable or obnoxious, that public measures or men in their public capacity are censured, satirized, or ridiculed. The publication must be such as justly to cause or to threaten a breach of the peace, or to interfere with the functions of the government, or in some way to work positive harm to the Commonwealth. Then is shown an injury to society which comes within the cognizance of the law. In the United States, the largest freedom of speech and of the press consistent with the public welfare is allowed and guaranteed. Until that privilege is justly forfeited by its abuse, no one is held amenable to the laws for the punishment of sedition and libel on the public. The same enlightened liberality should govern in determining rights of literary property.

There is no reported case in which has been expressly considered the question of copyright in a publication which is a libel on an individual, but not directly on the public. But, in law, a libellous attack on a citizen is looked upon as an offence against society, and one which, in the absence of legal remedies for redress, would lead to a breach of the peace. On this theory, and on the ground that, to publish a libel is a violation of the law, the courts may refuse protection to a publication in which an individual, though not the public expressly, is grossly libelled.

IMMORAL PRODUCTIONS.

The protection of the law will not be extended to a publication which is obscene, or has a positive immoral tendency. In Stockdale v. Onwhyn, the plaintiff claimed damages for the unauthorized publication of the Memoirs of Harriette and exceptions may be taken to his ney-General, so that if it were libellous report to be argued before the court. it would have been his duty to proseMore astounding it is that in this case cute it. For my own part I cannot the Lord Chancellor, professing total help suspecting that he was well acignorance of the nature of the work,' quainted with its contents, - that notshould, without any impeachment of withstanding his propensity to proseit, have imposed upon himself the cute libels, he had been afraid to bring necessity of reading the whole of it the author before a jury, and that he before granting the injunction. The now thought it a more convenient bill and answer showed it to have been course to unite in his own person the printed and published at least six years functions of prosecutor and of judge." - during the greater part of which he 10 Lives of the Chancellors (5th Enghad himself filled the office of Attor- lish ed.), 254.

Wilson, which professed to be a history of the amours of a courtesan, and contained" in some parts matter highly indecent, and in others matter of a slanderous nature upon persons named in the work." It was held that the publication of such a book was an offence against the law, and therefore the plaintiff could have no property in it. The same doctrine was applied in a recent American case, wherein the court decided that the dramatic spectacle called the Black Crook was not entitled to protection, on the ground that it "only attracts attention as it panders to a prurient curiosity or an obscene imagination by very questionable exhibitions and attitudes of the female person." Where it was contended that cards for playing were not entitled to protection, because they are often used, for unlawful purposes, Mr. Justice Shepley said: "Courts of justice will not lend their aid to protect the authors of immoral

15 Barn. & Cr. 173. "I am certain," said Chief Justice Abbott, “no lawyer can say that the sale of each copy of this work is not an offence against the law. How then can we hold that by the first publication of such a work, a right of action can be given against any person who afterwards publishes it? It is said that there is no decision of a court of law against the plaintiff's claim. But upon the plainest principles of the common law, founded as it is, where there are no authorities, upon common sense and justice, this action cannot be maintained. It would be a disgrace to the common law could a doubt be entertained upon the subject; but I think that no doubt can be entertained, and I want no authority for pronouncing such a judicial opinion."

In Poplett v. Stockdale, Ryan & M. 337, it was held that the printer was not entitled to recover money due from the publisher for printing this book. In a case before ViceChancellor Leach, in 1823, an injunction which had been obtained to restrain the publication of a pirated edition of a part of Don Juan was dissolved; but the defendant was ordered to keep an account. Jac. 474, note.

In Fores v. Johnes, 4 Esp. 97,

it was held that the defendant who had given an order to the plaintiff for "all the caricature prints that had ever been published was not bound to receive those which were immoral or obscene.

2 Martinetti v. Maguire, 1 Deady, 216. "Congress," said Deady, J., "is not empowered by the Constitution to pass laws for the protection or benefit of authors and inventors, except as a means of promoting the progress of 'science and useful arts.' For this reason an invention expressly designed to facilitate the commission of crime, as murder, burglary, forgery or counterfeiting, however novel or ingenious, could not be patented. So with a dramatic composition which is grossly indecent, and calculated to corrupt the morals of the people. The exhibition of such a drama neither promotes the progress of science or useful arts, but the contrary. The Constitution does not authorize the protection of such productions, and it is not to be presumed that Congress intended to go beyond its power in this respect to secure their authors and inventors the exclusive right to the use of them." Ibid. 223. See also Keene v. Kimball, 16 Gray (82 Mass.), 548; Shook v. Daly, 49 How. Pr. 366.

works. But, where there is nothing immoral or improper in the prints themselves, the fact that they may be used by persons to violate the laws against gambling does not of itself deprive them of the protection of the law. To do this, it must appear either that there is something immoral, pernicious, or indecent in the things per se, or that they are incapable of any use except in connection with some illegal or immoral act. It is not contended that the playing cards of the complainant are subject to either of these imputations." 1 Whether the work in controversy is positively indecent, or has an objectionable, immoral tendency, will be in some cases a question on which well-meaning persons may honestly differ. But, when the fact is found that the publication in this respect is obnoxious to society, it is not a proper subject of copyright.

BLASPHEMOUS PUBLICATIONS.

Great Britain. Blasphemous writings cannot be the subject of copyright, because blasphemy is a crime against society, punishable by law. But what is blasphemy, and what liberty an author may exercise in treating religious subjects, without forfeiting the right to protection for his literary property, are questions not decisively or satisfactorily answered by the decisions. The doctrine that no work injurious to religion is entitled to protection was advanced by Lord Eldon, and rests on two equity decisions pronounced by him in 1822. When application was made to restrain the publication of a pirated edition of Byron's Cain, the Chancellor doubted whether the poem was not "intended to vilify and bring into discredit that portion of Scripture history to which it relates," and refused the injunction until it should be shown that an action at law could be maintained.2 On similar grounds, the

1 Richardson v. Miller, 3 L. & Eq. law, the party could not recover any Reporter, 614. damages in respect of a piracy of it. This court has no criminal jurisdiction; it cannot look on any thing as an offence; but in those cases it only administers justice for the protection of the civil rights of those who possess them, in consequence of being able to maintain an action. You have alluded to Milton's immortal work; it did happen in the course of last long vacation,

2 Murray v. Benbow, 6 Petersd. Abr. 558. "Now this publication," said Lord Eldon, "if it is one intended to vilify and bring into discredit that portion of Scripture history to which it relates, is a publication, with reference to which, if the principles on which that case at Warwick (Dr. Priestley's decided, be just principles of

case) was

same judge refused to continue an injunction against the piratical publication of Sir William Lawrence's Lectures on Physiology, Zoology, and the Natural History of Man. These lectures had been delivered by that eminent surgeon at the College of Surgeons, in London, and by him they were afterward published. On a motion to dissolve the ex parte injunction which had been granted against the publication of a pirated edition, the defendant pleaded "that the nature and

general tendency of the work in question were such that it could not be the subject of copyright," and referred to passages in it which were claimed to be "hostile to natural and revealed religion, and impugned the doctrines of the immateriality and immortality of the soul." For the plaintiff, it was claimed that the passages did not bear this construction. In passing judgment, Lord Eldon said: "Looking at the general tenor of the work, and at many particulars of it, recollecting that the immortality of the soul is one of the doctrines of the Scriptures, considering that the law does not give protection to those who contradict the Scriptures, and entertaining a doubt, I think a rational doubt, whether this book does not violate that law, I cannot continue the injunction." 1

If the doctrine propounded by Lord Eldon, more than half a century ago, shall be followed by the English courts of today, protection will be refused to all publications in which are denied the fundamental principles of the Bible: as the existence of the Deity, the Divinity of Christ, the inspiration of the Scriptures, the immortality of the soul, and even less important truths. The question, however, has not since been adjudicated in any reported copyright case. Whether the court, when again called upon to declare the law, will adopt the narrow theories of Lord Eldon, or will proclaim a better and more

1 Lawrence v. Smith, Jac. 471. "I take it for granted," said the Lord Chancellor, "that when the motion for the injunction was made, it was opened as quite of course; nothing probably was said as to the general nature of the work, or of any part of it; for we must look not only at the general tenor, but at the different parts; and the question is to be decided, not merely by seeing what is said of materialism, of the immortality of the soul, and of the Scriptures, but by looking at the different parts and inquiring whether there be any which deny or which appear to deny the truth of Scripture, or which raise a fair question for a court of law to determine whether they do or do not deny it.... But if I feel a rational doubt whether an action would lie, it will not be necessary to go into the

grounds of that doubt; it might perhaps prejudice the trial if I did.”

The doctrine here applied by Lord Eldon was foreshadowed in 1720 by Lord Chancellor Macclesfield, who in granting an injunction to restrain the publication of a piratical English translation of Burnett's Archeologia Philosophica, on the ground that while the original “contained strange notions intended by the author to be concealed from the vulgar in the Latin language, in which language it could not do much hurt," the dissemination of its doctrines in English would be harmful to religion, said that he “looked upon it that this court had a superintendency over all books, and might in a summary way restrain the printing or publishing any that contained reflections on relig ion or morality." wood, 2 Meriv. 441.

Burnett v. Chet