« PreviousContinue »
ART. III.—THE LAVV RELATING TO BLASPHEMY.
“ HE HOLY SCRIPTURES form part of the common
. law of England,” and “ Christianity is parcel of the common law.” Both these doctrines may be found repeated by various authorities in English jurisprudence. How they found their way into text-books and reports we will presently inquire ; though, sooth to say, for any merit which they may possess on the score of being sound, useful, or applicable, they might be passed over in common with much more which is obsolete, fanciful, or mischievous, which retained in old law-books is repudiated in the new.
Blackstone enumerates among “ public wrongs,” (Book iv., chap. 7,) that of “blasphemy against God and religion, by denying his being or providence; or by contumelious reproaches of our Saviour Christ; whither, also, may be referred all profane scofiing at the holy Scripture, or exposing it to contempt and ridicule. These are offences punishable at common law by fine and imprisonment, or other infamous corporal punishment; for Christianity is part of the laws of England.” To this passage the commentator hath appended references to 1 Vent, 293, and 2 Strange, 834 ; and the editor, Mr. Christian, further supports the position taken up in the text by the following note :—“ ChiefJustice Prisot declared, in the Court of Common Pleas, ‘ Scripture est common Zey sur quel touts manicres dc leis sont fondes.’ —See the Year Book, 34 H. VI. 40.”
On examining this reference of Mr. Christian, we find that it is certainly misquoted by him, and probably misinterpreted. The contention in the case cited arose out of a writ quare impedit. The institution of the patron’s presentee to the living of Holborn was disputed, the bishop maintaining that he was to be subject to the law of the church, and not to the common law ; and what Prisot, during the learned argument, is reported really to have remarked, is—
That the “ancien Scripture” here has reference to the Bible, is by no means evident. The phrase rather points to the record of the ecclesiastical law which existed in ancient writings; and it obviously includes the old canon law-—a fact which would render this quotation any thing but palatable to those who rest their faith upon it. The whole text, however, is corrupt and obscure, and utterly inadequate to support the doctrine propounded. Nevertheless, the misquotation, or rather garbling, and the probable misinterpretations of this passage, are really the sole foundation, by way of authority, for the oft-repeated maxim, that the “ Scripture is common law,” which we are astonished to find also preserved in Mr. Serjeant Stephen’s commentaries.
The reference to Ventris is the report of T-aylor’s case 293). The defendant here had used very gross language, saying “Christ was a bastard &c., and that religion was a cheat.” Hale, C. J ., presided, and ruled, that “to say religion were a cheat, is to dissolve all those obligations whereby the civil societies were preserved, and to reproach Christianity was therefore to subvert the law.” In Keble’s reports the same case is reported, and it is there alleged that the defendant blasphemously alleged “that the Protestant religion was a fiction.” And the judge is said to have affirmed two propositions, lst, “ the Christian religion (not the Bible) is part of the law itself 3” and 2nd (a much more tenable position), that “the religion established must be protected.” Whereiipon Taylor, according to the approved mode in those days of bringing sinners from the error of their ways, and deterring others from the abominations of infidelity, was sentenced to stand thrice in the pillory, to pay a thousand marks, and find securities for his good behaviour for the rest of his life. We may indeed gather from Q. v. Curl (1 Str., 789), that Hale, C. J., general said in argument, “ My Lord‘ C. J. Hale used to say, ‘ Christianity is part of the law,’ why not morality too?” 1
had held on other occasions like language; for the Attorney
The remaining authority, cited in support of Blackst0ne’s remark, is Woolston’s case, reported in 2 Strange, and dating in the second
year of George II. Woolston moved in arrest of judgment, that
to write against Christianity in general was not an offence punishable at common law; but the judges would not suffer this to be debated, saying it had already been settled (by Ventris’s case 2). They however, in the cause of toleration, which then “infested some men’s minds,” desired it might be noted that they did not intend to include “disputes between learned men upon particular controverted points,” but addressed their judgment to attacks on Christianity in general. We may observe in passing, that legal tribunals therefore, if this be law, have imposed upon them the onerous duty of deciding as to who are “learned” men, what are the particular points which may be discussed, and what may be considered a “general” attack on religion. We could point to more than one recent work, bearing the names of university professors and famous divines, which, if made the subject of indictment, would afford excellent scope for the exercise of the judicial faculties, in determining as to the learning of the men, and the tendency of their books. Such, however, is the degeneracy of these times, that we fear the inajesty of the law will not be invoked either against High-church writers who have excited irreverent laughter by attempting a revival of mediaeval ideas and practices; or against the Broad-church party for rank infidelity ; or against the Low-church for treating what is alike sacred and profound with equal temerity and ignorance.
Be it remembered we have not to deal with the question whether proceedings against persons of the above description are probable, but whether they are possible under the law as it now is interpreted; and, if so, whether that law ought not to be
1 In this case, the court overruled Readis case (Fest. 98),’ Read was indicted for publishing an obscene work, “Fifteen plagflflfi Of, ' &0- Powellfl distinction between Reed's case and Sed1ey’s is too “broad” to be repeated here.
That prosecutions for blasphemy are at this day possible, recent experience has shewn ; and the tenor of the discussions which have recently been raised in various places, has demonstrated to us that the principles on which the decision of the law is founded, and their practical applicability, are much misunderstood.
There is abroad a lack of distinct definition, and a large supply of the odium theologicum, which may at any day, notwithstanding the boasted “ spirit of the age,” induce fresh prosecutions for opinion in England, and the establishment of a censorship, galling and noxious, as in other countries and in other times. So little real security does the law itself give, and so ardent are some people for the repression of hostile and “dangerous” doctrines, that it may be fairly avowed that we must rather look to the mutual hostility and jealousy between rival sects, than to their common toleration and disinterested love towards one another, when we seek for the explanation of the immunity enjoyed by heretics and those who declare themselves the antagonists of popular religions. The divisions between the Roman Catholics and the Church of England, between the Church of England and orthodox Dissenters, between the latter and the Unitarian and Quaker, afford a practical protection to each in turn, and incidentally to the rationalist, sceptic, and deist. But the trial of Mr. Holyoake and others who have preceded him, and the contumely and insult poured forth occasionally upon persons who have appeared in court, and professed coarse forms of infidelity and atheism (whatever this term may mean), shew that, for the unfortunate persons who profess to believe atheism, there is no safeguard against the machinery of the penal law being enforced against them.
We have seen what Blackstone and his authorities provide for the jurist’s aid and guidance in dealing with blasphemy; and, before we consider the present aspect of the question, it will be well to notice what are the principles enunciated by the older authorities, and what were the practical application of their principles.
We do not find A“ blasphemy,” in Hawkins’s “Pleas of the Crown,” enumerated under the head offences against God. He here classifies in this division only three offences: (1) heresy, (2) witchcraft, (8) and unnatural offences, (Bk. I. pt. 2.) His definition of heresy, however, bears closely upon what we are considering, for from a Protestant’s point of view, it is “a false opinion, repugnant to some point of doctrine clearly revealed in scripture, and either absolutely essential to the Christian faith, or at least of most high importance.” Far better, we would suggest, than this vague attempt at definition, is that of Lyndwood—“Is qui male sentit vel docet de fide, dc corpore Christi, de Baptismate, peccatorum confessione, matrimonio, vel aliis sacramentis ecclesiae, et generaliter qui de aliquo praedictorum, vel de articulis fidei aliter praedicat, docet, vel sentit quam sancta mater ecclesia, dicitur hcereticus.”—-(Prom'nct'ale de H an-eticis.)
Just as Hawkins’s definition of heresy is defective, so we shall find, in applying the law, the offence of blasphemy is very vaguely described. Let us, for example, refer to the report of Atwood's case. In the 15th James I. (aide Cro. Jac. 421,) one Atwood declared his opinion to be, that “preaching was but prating, and hearing of service more edifying than two hours‘ preaching,” and he was thereof convicted; and doubtless, if the rankness of the blasphemy is to be calculated with reference to the annoyance inflicted on the persons whose opinions are contemned, and whose sentiments are opposed, then poor Atwood was in his time a very wicked man ; though in more modern days we would fain think the offence contained in his remark would not be considered so unpardonable by a very large proportion of intelligent congregations.
Again, the case of Rex v. Woolston (Fitz. 64), is an example of the great vagueness and elasticity in the definition of blasphemy. Here the defendant Woolston had published several discourses on the miracles of Christ, in which he maintained that the same are not to be taken in a literal sense, but that the whole relation of the life and miracles of Christ in the New Testament is but an allegory. He was therefore indicted for his publication, “ with an intent to vilify and subvert the Christian religion.” It