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ing infidels from getting into places of trust. In the age of toleration in which that statute passed, neither churchmen nor sectarians wished to protect in their infidelity those who disbelieved the Holy Scriptures. On the contrary, all agreed that as the system of morals which regulated their conduct was built on those scriptures, none were to be trusted with offices who showed they were under no religious responsibility. This act is not confined to those who libel religion, but extends to those who, in their most private intercourse, by advised conversation, admit they disbelieve the scriptures. Both the common law and the statute are necessary; the first to guard the morals of the people; the second for the immediate protection of government (Rex v. Carlile, 3 B. & A., 167.)1 Let us note a few more instances where, on trials for blasphemy, the dicta of judges, and their application of the supposed common law, remain for our instruction and reproof.

R. v. Williams (26 St. Tr. 653) was a trial before Lord Kenyon, on an indictment for publishing Paine's "Age of Reason," in which the Bible is attacked as containing immoral and fabulous matter. The subject of the prosecution was of a gross character, and this exasperated the feelings of animosity which were directed against the defendant. Williams had the misfortune of being represented by a vulgar, reckless, and mischievous attorney, named Martin, whose conduct of the case did his client much harm. Thus, he served a notice on the prosecutors to "produce a certain book, described in the indictment to be the Holy Bible." Of this, as well as other indecencies, Mr. Erskine availed himself; and though his speeches on the occasion were not remarkable for depth, or even accuracy, they were very effective. The authority of the court, he observed, in commenting upon Mr. Kyd's defence, was admitted "to be derived from the Bible, which he has reviled and stigmatized." Such a derivation our constitutional writers, we apprehend, do not contend for; but it suited the orator to attempt to demonstrate, that if the truth of the Bible was denied, the court had no jurisdiction. The prosecution, in

1 Carlile was, for this and another blasphemous libel, sentenced to pay £1500, to be imprisoned for three years, and to find sureties for his life. VOL. VIII. NO. XVI.

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this case had been instigated by some gentlemen who had formed themselves into a committee for the protection of Christianity. It was a kind of society to put down irreligion and immorality, and was called the Proclamation Society. It was presided over by Bishop Porteous; and several eminent men in the Christian world were members of it. And we may be pardoned here, if we refer to the proceedings in this case, as showing how they tend to exasperate men's worst passions, and deaden their better feelings. Facts came to light which would have excited the deepest commiseration of most people, and which further rendered it evident that the poor man Williams was not the proper object of vindictive punishment; and Mr. Erskine was induced to recommend to the Society, to take the "opportunity of manifesting their charity and Christian forbearance, by instructing their counsel to state they were satisfied with the punishment already inflicted on Williams by his commitment to Newgate, and did not desire to ruin his helpless and half-starved family." But the Christian Proclamation Society refused to accede to the voice of either reason or mercy. Erskine however held he was, in a criminal case like this, counsel for the crown, and that a private society could not arrogate to itself to be a custos morum, nor dictate to their counsel, and he refused to move for judgment. The Society, therefore, instructed another counsel, and Erskine cancelled their retainer forthwith.

In the course of this case it will be observed that two inconsistent doctrines will be found; 1st, that any attack upon the received religion of this country is a legal offence; and 2nd, that it is only a malicious and indecent attack which can be the object of prosecution.

In R. v. Waddington (1 B. and C. 28), the defendant had argued "against the divinity of Christ, by denying the truth of Scripture." Abbott C. J. being asked by a juryman, if “denying Christ's divinity was a libel," evaded the question dexterously; and the jury found, under his directions, that a work containing such arguments as Waddington used, was published maliciously, and the verdict was upheld.

In R. v. Gathercole, tried on the northern circuit, anno 1838

(2 Lew. 237), Alderson B. lays it down "that a person may attack Judaism or Mahommedanism, or even any sect of the Christian religion save the established religion of the country; and the only reason why the latter is in a different situation from the others is, because it is the form established by law, and is therefore a part of the constitution of the country. In like manner, and for the same reason, any general attack on Christianity is the subject of criminal prosecution, because Christianity is the established religion of the country." Wherein it seems to us the learned judge fell into a common mistake through using a loose expression, and suggesting it is Christianity which is established by law, when in truth it is only the Church of England.

Holyoake's trial took place at Gloucester during the summer assizes of 1842. It was an extremely ill-advised and foolish proceeding, instituted by a sectarian party in great strength at Cheltenham. The prosecution arose out of an answer which Holyoake had casually made after the delivery of a public lecture on “Emigration and Poor Laws," &c. "The lecturer has been speaking of our duty to man; but he has said nothing as regards our duty to God," quoth one of the audience; to which Holyoake replied, “I am of no religion at all; I do not believe in such a thing as a God. The people of this country are too poor to have any religion;" and so on. Mr. Justice Erskine was the presiding judge on the occasion, and the report of his summing up contains passages which express opinions of a character much professed in those days by respectable persons (who preferred compromise to principle), and which we will here advert to. The judge in his summing up, having remarked that without religion there can be no morality, charged the jury to the following effect-" I am not going to lay down as law that no man has a right to entertain opinions opposed to the religion of the state, nor to express them. Man is only responsible for his opinions to God, because God only can judge of his motives, and we arrogate his duties if we judge of men's sentiments. If men will entertain sentiments opposed to the religion of the state, we require that they shall express them reverently, and philosophers who discuss the subject all agree

that this is right!" He then quotes Mr. Archdeacon Paley, in a passage which we will presently cite. The judge also laid down the doubtful doctrine, that "Sober argument you may answer, but indecent reviling you cannot, and therefore the law steps in and punishes it. . . If you think the prisoner uttered the language imputed to him with levity, for the purpose of treating with contempt the majesty of Almighty God, he is guilty of the offence. If you think he made use of the words in the heat of argument, without any such intent, you will give him the benefit of the doubt."

Now, it is clear that in the above cases there are found two distinct propositions of law with regard to blasphemous libels. The first and most ancient is, that the publication of doctrines subversive of the religion recognised by the government is of itself an offence. By this proposition it appears, that any person who arrays himself in the armour of a controversialist, and takes up a position hostile to what is called "Christianity," though he employ the weapons of argument, and appeal only to human reason, yet the mere advocacy of what is heterodox is a crime. The confession of heresy, and the publication of blasphemy, are only different degrees of the same crime. The main principle upon which this proposition is established is, that to destroy true religious opinions is to dissolve moral restraints; or, as it has been expressed, that impieties "tend to weaken and undermine the very foundation on which all human laws must rest; and to dissolve their moral and religious obligations, without the aid of which mere positive laws and penal restraints would be inefficacious." A particular illustration of this consequence is given, by showing that the removal of the obligations of religion, and the influence which the belief in future rewards and punishments induces, would tend to destroy veracity among men; and courts of justice would be useless, because the sanction of the oath would have vanished. This principle, right or wrong, is perfectly intelligible, and the proposition founded on it quite clear, so soon as the terms "Christianity" or "religion," and its contrary-" infidelity"—are defined.

1 Starkie's Law of Libel, vol. ii. chap. 6.

The second, and more modern, proposition of law is, however, a modification of the first; but it is more difficult to understand and apply. It is, that attacks on religion or Christianity are only offences against law when they are indecorous, flippant, or scoffing. Here the distinction is attempted to be made between argument and ridicule-between controversy, conducted in terms and phrases not offensive to the "Christian's" feelings, and that in which they are lacerated. The Christian's belief must not be "held up to scorn or contempt;" i. e., we presume, that they must not be attacked by scornful and contemptuous language. The mode of attack, and not the attack itself, is here made the offence. To "vilify," "revile," and sneer at sacred things, is constituted the crime; whilst to demonstrate, in an orderly and conclusive manner, that what is cherished as sacred and holy is in reality foolishness and delusion, would be no offence.

The first proposition is supposed to be connected with the dogma, that "Christianity is part of the common law of England." But, assuming this to be the connection, it by no means follows that to deny Christianity is to break the law, any more than that for a man to dispute the meaning and sense of any common law maxim is a crime. The second proposition, it is evident, was fallen back upon because the first could not be maintained in its integrity; and it contains within itself all the elements of uncertainty and doubt. Its application depends upon the accident of the judgment of any particular tribunal as to what doctrinal points are articles of faith, and what is the right way of handling a theological question. To some, the employment of the argumentum ad absurdum would appear an improper application of ridicule-to others, the argumentum ad hominem. Some, again, would exclude strong language altogether, however monstrous one might think the superstition assailed, and presuming and overbearing the manner of him who professed it.

Whatever may be the origin and the connection of the first-mentioned doctrine, in which it is broadly laid down as a rule of law that the man who professes heresies is guilty of a crime recognized by the criminal law, it is only possible to carry it out perfectly under

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