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Crown,” enumerated under the head offences against God. He here classifies in this division only three offences: (1) heresy, (2) witchcraft, (3) 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, de corpore Christi, de Baptismate, peccatorum confessione, matrimonio, vel aliis sacramentis ecclesiæ, et generaliter qui de aliquo prædictorum, vel de articulis fidei aliter prædicat, docet, vel sentit quam sancta mater ecclesia, dicitur hæreticus."--(Provinciale de Hæreticis.)
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
In the 15th James I. (vide 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
was fairly enough argued that these “ discourses did not amount to a libel upon Christianity, since the scriptures are not denied, but construed and taken in a different meaning from that they are usually understood in; and by the same reason that making such a construction should be punishable by the common law, so it would have been punishable by the common law, before the reformation, to bave taken the doctrine of transubstantiation allegorically. Now, as the common law has continued the same since the reformation that it was before, whatever was punishable by it before continues so likewise since the reformation; so that this not being now a crime by the common law, nor was it before the reformation when it was held literally a part of Christianity, neither is the allegory made by the defendant, by the same reason, a crime punishable by the common law.” To this argument, Raymond C. J. replied, that Christianity in general is “parcel of the common law of England, and therefore to be protected by it; now, whatever strikes at the very root of Christianity tends manifestly to a dissolution of the civil government
I would have it taken notice of that we do not meddle with any difference of opinion, and that we interpose only when the very root of Christianity itself is struck at, as it plainly is by this allegorical scheme
and who can find this allegory ?” Here, we plainly see the judge imposing on himself the duty of determining what are the essential parts of Christianity. We have at least one judge now on the bench of reputed Unitarian creed. His dictum as to these “essentials," and that of Raymond C. J., would undoubtedly differ, Indeed, the present bench of judges could, no more than the present bench of bishops, agree on what was the “root of Christianity.”
Coming down to a much later period, it is instructive to read what another judge proclaimed as being the object and within the scope of the criminal law. Best J, thus comments on the
Act for the more effectual Suppression of Blasphemy and Profaneness” (9 and 10 Wm. III. c. 32 :)—“The legislature, in passing this act, had not the punishment of blasphemy so much in view as the protecting the government of the country, by preveut,
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.)? 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.
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 wbich 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. ». 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 Holydake 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