« PreviousContinue »
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.
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
circumstances which do not exist in this country. These should be, to render the rule effective, an ecclesiastical government able to determine what is heresy, and what is that which, taking religion as the basis of morals, tends, by impugning orthodoxy, to imperil the weal of society. Given an infallible church with inquisitorial power, and establish the doctrine that all sips and errors are proper subjects of the criminal law, then blasphemy, which is really an injurious imputation on the known creeds of a church, more or less offensive, can be consistently suppressed. But for any private person to aver, that in England" Christianity” or
Christianity” or “religion" can be the object of blasphemy, or claim the protection of the state, is simply an inaccurate, vague, and mischievous mode of expression, which cannot be too strongly condemned.
Such should we expect to find, perhaps, at the respectable tea-tables of worthy village spinsters, where the views of the rector's lady or the curate's wife are the standard of truth, and the prevailing literature consists of the “Record,” “Evangelical Rambler," "the Scarlet Lady unveiled,” “the Socinian no Christian,” and the "Sin of Schism. In such circles each happy person would exclaim—“Every one knows what Christianity is ! The true religion is that with which the Rev. Apollos Washy waters his congregation twice-aweek!” Now, if this fact were universally admitted, and the state would condescend to analyze his water, and tabulate its component parts, then, doubtless, we should be able to test the truth, and punish satisfactorily the beretic and blasphemer. But, alas! society and government have not arrived at this point of perfection.
But, indeed, it is difficult to refer with any success to any authorities in our law-books which we can accept. The judges who have expounded or made the common law on this subject, were not wont to take very philosophical views of the limits within which the laws should be beneficially applied. The reader who refers to the black letter for his philosophical rationale of law will be disappointed. What be will find is the expression of the best current opinions of the day on the subject, and he may
trace there fluctuations in the politics, and the changes in the prevailing
parties and sects. Some may have thought that, though we should fail to find the exact law in our works of jurisprudence, this was of little consequence now, for either the spirit of persecution was laid, or at least its practice extinguished; that it was now conceded, that most of the trials and decisions of the last, and beginning of the present century, were founded on laws which might be deemed obsolete ; that, by common consent, the liberty of expression, as well as of thought, was one of the advantages which modern society had purchased, after much conflict with the ignorance, bigotry, and timidity of the powers which were in high places. “ At least," it has been said, “ though the limits within which criminal law should be applied may not be understood among the uneducated, nor be appreciated by the habitually narrow-minded sectarians, you will find among jurists of cultivated minds, and those who have mastered the elements of political and moral philosophy, a perfect concurrence upon this subject.” But this is not so. This subject of blasphemy, in its legal aspect, has been opened again of late by the discussion of Pooley's case, on which we lately entered at length. With Mr. Buckle we differed as to the personal accusations on Sir John Coleridge ; with the general principles which in his able essay he laid down, we cordially concur. However erroneous Mr. Buckle may have been, and in our opinion was, yet he has produced at least one good effect. He has drawn attention to the principles upon which the law regarding prosecution for speculative opinion, and their publication, are resting. We confess that we did not believe, as we now do, that in the present day there was in England the necessity for agitating the question so warmly and vigorously; but we were altogether mistaken.
The Juridical Society lately announced that one of its members would read a paper on the law of Blasphemy, and an abstract of the lecture delivered is now before us." We here find, so far as the tone of this paper is a criterion, and the recorded transactions of the society are a reflection of the state of opinion even among edu
1 The Solicitor's Journal, Nov. 26, 1859, pp. 4, 5. We are assured that this abstract is acknowledged by the reader of the paper.
cated men, that it is by no means a work of supererogation to assert and insist on the true principles on which this branch of our law should rest.
Mr. W. D. Lewis, Q. C., is the author of the paper before us. The Lord Chancellor took the chair on the occasion of its being read, and a full meeting of the members (several of them eminent and able lawyers) duly attended. “After referring to the delicacy of the inquiry, the reader apologized for introducing it to the society, on the ground that the law in reference to it had been assailed by able men in violent terms, as incompatible with that freedom of opinion which ought to be present in a free country. Having given examples of the kind of speaking which the law hield to be blasphemous, he remarked that such blasphemy was indictable under both the common and the statute law, the malice of the person uttering it being assumed as an essential ingredient of the offence. Formerly nonconformity and heresy were indictable by statute, but that law had been repealed; and that being the case, he was ready to maintain that there was not any thing prejudicial to free opinion, in the state exercising the power, to protect the Christian religion from ribald and scurrilous attacks." He then observed that the law had “the purely practical aim of protecting what, rightly or wrongly in regard to religion, it deems the essential interests of society at large, as of individuals specially in need of and entitled to claim its protection.
“Rightly or wrongly, I say, for the question has been started whether this interference is right or justifiable ; whether society or the law has any function to examine what is irreligious, or to make irreligion a crime. It is said to be each man's right et sentire quæ velit et quæ sentiat dicere, and that the law oversteps its rightful limits when it annexes a punishment to profane speech. A claim is put forward which I will state in the precise words of one who has made himself most conspicuous in denouncing this portion of our laws. Mr. Buckle, the well-known author of what at first appeared to be a promising treatise on civiliza
1 We are at a loss to understand this description of Mr. Buckle’s book. It “appeared at first to be a promising treatise ! 5 was it a “promising” treatise