The justly celebrated summing-up of Lord Coleridge in the case of R. v. Foote and Others, raises questions which I think fall within this principle. With the sentiment which pervades the summing up I cordially agree, and I admire as much as any one the manner in which it is expressed. My only objection to it is that I fear that its merits may be transferred illogically to the law which it expounds and lays down, and that thus a humane and enlightened judgment may tend to perpetuate a bad law by diverting public attention from its defects. The law I regard as essentially and fundamentally bad. I earnestly wish that the Legislature should improve it, and this being so, I think myself justified in stating the reasons why I am compelled to dissent from the view of it which has been taken by Lord Coleridge.
The law relating to blasphemy and blasphemous libel and other offences against religion has had an extremely curious history, which I tried to relate in a work published about a year ago. [History of the Criminal Law, vol. ii. pp. 470-75. But see the whole chapter on Offences against Religion, pp. 896-497.] It was supposed by most persons to have become obsolete for all practical purposes, as no prosecution for the offence had attracted any public attention, if, indeed, any such prosecution had occurred since 1857, when a man of the name of Pooley was tried for it on the Western Circuit by the late Mr. Justice Coleridge. Several recent prosecutions have, however, shown that this is not the case, but it is supposed that the law has been laid down in such a manner as to secure full liberty of discussion upon religious subjects, even if such discussion goes so far as to deny the truth of the Christian religion, the existence of' God, and the doctrine of a future state of existence. And no doubt the summing-up of Lord Coleridge in the case of R. a. Foote does go to that length. [The Summing-up in the Case of R. v. Foote and Others. Revised, and with a Preface by the Lord Chief Justice of England. Stevens & Sons. 1883.] He says in one place (page 28): “If the decencies of controversy are observed, even the fundamentals of religion may be attacked without a person being guilty of blasphemous libel-;” and other expressions to the same effect occur in other parts of it. In short, if this view of the law is correct, the offence of blasphemous libel must now be taken to consist, not in the nature of the matter published, but in a neglect of “the decencies of controversy.” But is this view correct? Does the judgment in which it is contained provide sufficiently for the freedom of religious discussion? I am sorry to say that I feel obliged to answer each question in the negative; and my object in writing this article is to show that further security for freedom of discussion on these subjects is required, and that the Legislature ought to give it.
In the work already referred to I have entered at full length into the history, from the earliest times, of the law relating to offences against religion. In a highly compressed form, it is as follows.
What the legal powers of the bishops were before the Conquest is an obscure question. They seem to have been very great both in religious and in civil matters; but however this may have been, William the Conqueror strengthened their ecclesiastical jurisdiction, and separated their courts from the ordinary hundred and county courts. For several centuries after the Conquest all offences connected with religion were punished exclusively by spiritual censures, though there are one or two obscure and doubtful instances in which the civil power perhaps interfered to punish, or help to punish, heresy or apostacy, and though excommunication had civil consequences. The courts by which this system was administered had far greater importance, and a much more prominent place in the daily life of those times, and indeed, down to 1640, than is commonly supposed.
They had at one time unfettered power of life and death. Early in the fifteenth century, in consequence of the rise of the Lollards, statutes were passed by Henry IV. and Henry V. by which the bishops were empowered to arrest persons suspected of heresy, to try them, to condemn them, and to hand them over for execution to the sheriff’s, who were thereupon to burn them alive. At the same time, by what I believe to have been a gross usurpation, not unaccompanied by fraud, a theory was devised that there was at common law, independently of any statute, a power to burn heretics by a writ called the writ De Heretico Comburendo. These statutes remained ii] force about one hundred and fifty years. They were repealed in the reign of Henry VIII., and replaced by others, which, though more capricious were less harsh. They were revived during the reign of Mary, and abolished by Elizabeth.
The statutory provisions against heretics having been repealed, powers were conferred upon the Queen to issue what was known as the High Commission, which exercised ecclesiastical jurisdiction in relation to all manner of offences connected with religion and morals, and, amongst others, in cases of heresy, and writings on religious subjects which were considered objectionable or blasphemous.
In 1640 the Court of High Commission was abolished, on account of its tyrannical proceedings; and all the other ecclesiastical courts were by the same Act deprived of their coercive jurisdiction, and remained abolished till after the Restoration.
Under the Commonwealth several laws, of various degrees of severity, were passed punishing atheism, blasphemy, and some other forms of opinion regarded as heretical.
After the Restoration the old ecclesiastical courts were revived; but the ex officio oath, which was the great instrument of their procedure, being abolished, their powers ceased to be of much practical importance. The so-called common law writ De Heretico Comburendo, which had been used on a few occasions after the repeal of the statutes of Henry IV. and Henry V., was abolished in 1677. Thus in the reign of Charles II. all the courts and modes of procedure by which heresy and blasphemy had formerly been punished were disabled or abolished. On the other hand, the general feeling against the expression of atheistical or anti-Christian opinions, and against blasphemy in the narrower sense of the word, were still strong, and had not been much affected by the abolition of the different courts and methods of procedure referred to. Indeed, when Parliament in 1677 abolished the writ De Heretico Comburendo, they were careful to avoid any alteration in the offences to which it applied. The Act (29 Ch. 11., s. 9) concludes with the following proviso: “Nothing in this Act shall extend or be construed t) take away or abridge the jurisdiction of Protestant archbishops or bishops, or any other judges of any ecclesiastical courts, in cases of atheism, blasphemy, heresie, or schism, and other damnable doctrines and opinions.”
In this state of things, the Court of King’s Bench took upon itself some of the functions of the old Courts of Star Chamber and High Commission, and treated as misdemeanours at common law many things which those courts had formerly punished. It openly claimed and acted in the character of custos morum, as in the famous case of Sir Charles Sedley.
[The particulars of Sedley's case are thus quaintly reported by Siderfin:—
“Mich. 15 Ch. II. Le Roy v Sr. Charles Sedley. (Nov. 1664).
Sir Ch. S. fuit indict al common Ley pur several misdemeanours encounter le Peace del Roy et que fueront al grand scandal de Christianity. Et 1e cause fuit que i1 monstra son nude corps in un balcony in Covent Garden a1 grand multitude de people at In fist tiel choses et parlc tiel parolles, &e. (monstrant ascun particulars do son misbehaving) ct cet indictment fuit overtement In a lay in court et fuit dit a luy per lcs justices quc coment la no fuit a col temps nscun Star Chamber uncorc ils voil fair luy do scaver que cest Court est Custos Morum dc touts les subjects 1e Roy. Et est ore haut temps de punnier tiels profane actions fait encounter tout modesty queux sont cy frequent sieome nient soloment Christianity mes auxy morality ad estre derelinquy." He was fined 200 marks, imprisoned a week, and bound over to be of good behaviour for three years.]
This was the origin of the modern law as to blasphemy and blasphemous libel, which has been enforced, as occasion required, from that time to our own by indictments in the common criminal courts. I do not propose on the present occasion to go through the different cases which have been decided upon it. I have done so at considerable length in the work already referred to.
The object of this condensed account of its history is to show the position which it holds in reference to other parts of the law, a matter which in itself throws great light on its nature. The question at present at issue, is this—Does the offence of blasphemy or blasphemous libel consist in a neglect of the “decencies of controversy,” or in the expression of certain opinions which the law forbids to be expressed? Is it a question of manner, or of substance?
The first step towards an answer to it is that beyond all controversy the expression of atheistical or blasphemous opinions, in any shape whatever, was treated as a crime from the beginning of the fifteenth to the early part of the seventeenth century, and that during the whole of that period, and down to the year 1677, the opinion prevailed that it was not only a crime, but a capital crime at common law, punishable by burning alive.
The next step is that the existing law as to blasphemy and blasphemous libel originated in a recognition by the Court of King’s Bench, as being misdemeanours at common law, of some of the offences which used to be punished by the Courts of Star Chamber and High Commission. This strongly suggests to my mind that the Court of King’s Bench punished—in a different degree, no doubt, and according to a different form of procedure—substantially the same offences as had previously been punished by other courts. But notoriously the older courts punished atheism, heresy, and blasphemy, on the double ground that it was a crime to express certain opinions at all, and an aggravation of that crime to express them in offensive language. Why, then, should it be supposed that the Court of King’s Bench looked to the style and not to the substance of the matter published? I cannot myself believe that in point of fact they did so. It seems to me that their decisions throughout, from the time of Lord Hale till the last case decided before that of R. v. Foote, have laid down the same doctrine and have based it on the same principle. The doctrine is that it is a crime either to deny the truth of the fundamental doctrines of the Christian religion, or to hold them up to ridicule or contempt. The principle is stated in the form—a form open to obvious objections—that Christianity is a part of the law of the land. I do not think that justice is done to this principle by those who suppose the courts by which it was stated to mean that it is in all cases criminal to find fault with any part of the law of the land. It would be easy to quote from the most authoritative writers—Hale, for instance, and Blackstone— cases in which the defects of the law as it stood in their time are clearly pointed out and remedies for it proposed. I think that what was meant was that a belief in the great articles of the Christian religion, and in particular a belief in God, God’s providence, and a future state of rewards and punishments, as revealed by Jesus Christ, gave a sanction to the whole system of human law which nothing else could give, and that whatever tended to weaken that sanction tended to the subversion of society, and ought therefore to be punished. The following passage from Blackstone [Com. Second Edition, iv. 43.] expresses this view as clearly as it can be expressed:
“Doubtless, the preservation of Christianity as a national religion is, abstracted from its own intrinsic truth, of the utmost consequence to the civil state, which a single instance will sufficiently demonstrate. The belief in a future state of rewards and punishments, the entertaining just ideas of the moral attributes of the Supreme Being, and a firm persuasion that he superintends and will finally compensate every action in human life (all which are clearly revealed in the doctrines and forcibly inculcated in the precepts of our Saviour Christ), these are the grand foundations of all judicial oaths which call God to witness the truth of those facts which perhaps may be only known to him and the party attesting. All moral evidence, therefore, all confidence in human veracity, must be weakened by irreligion and overthrown by infidelity. Wherefore all affronts to Christianity, or endeavours to depreciate its efficacy, are highly deserving of human punishment.”He goes on to justify on this ground the statute 9 and 10 Wm. III., c. 32 [In the Revised Statutes it is numbered c. 35] to which I shall have further occasion to refer.
A little further on he defines the offence of blasphemy:
"The fourth species of offence, therefore, more immediately against God and religion is that of blasphemy against the Almighty by denying his Being or Providence, or by contumelious reproaches of our Saviour Christ. Whither also may be referred all profane scoffing at the Holy Scripture or exposing it to contempt or ridicule." [This passage is a quotation from 1 Hawkins, P. C. 358. Garwood's edition]
In all this there is not a word of the supposed right to attack either theism or Christianity seriously and in good faith. The theory is as plain and concise as possible: The truth of some of the fundamental doctrines of Christianity is essential to the welfare of society; therefore every one shall be punished who denies, reviles, or ridicules them.
Personally, I do not hold this opinion; but I say that it is the theory of the law of England, as understood and practised from the Restoration to the present day.
Lord Coleridge in his summing-up says that he is not satisfied that the law ever was laid down otherwise than as he stated it; and he takes three cases, divided, as he says, roughly by two intervals each of about one hundred years, of which he says: “I find the law, as I understand it and have laid it down to you, to be laid down practically in the same way in all those cases.” The three cases in question are R. 1). Taylor, [Ventris, 293.] decided by Lord Hale; R. v. Woolston [Strange, 834; Fitzgibbon, 64.] (about1720), decided in Lord Raymond’s time; and R. v. Waddington [Barnwell and Cresswell, 26.] (l822)—-which Lord Coleridge naturally considers of high authority, as it was decided by Lord Tenterden, C.J., and Bayley, Holroyd, and Best, JJ. He says that the case binds him; and he directed the jury according to what he conceived to be its meaning. After the most careful study of the cases referred to, I am unable to agree in Lord Coleridge’s view of them. Each of them appears to me to proceed upon the principles stated by Hawkins and Blackstone, and to be inconsistent with any other view of the law. They seem to be well chosen for the purpose of illustrating the law. There are many others, but I think these are perfectly fair illustrations of what has often been laid down.
The first in order is the ease of R. v. Taylor. The words used were, “That Jesus Christ was a bastard and a whoremaster; that religion was a cheat; that he feared neither God, the devil, or man.” Upon this Lord Hale said: “That such kind of wicked and blasphemous words were not only an offence against God and religion, but a crime against the laws, State, and Government, and therefore punishable in this (the King’s Bench) Court; that to say religion is a cheat, is to dissolve all those obligations whereby civil societies are preserved; and Christianity being parcel of the laws of England, therefore to reproach the Christian religion is to speak in subversion of the law.” Lord Coleridge says that the first part of these observations only, constitutes what Lord Hale held—that “you may find expressions which seem to go further in the reasons which he gives,” but that all that he actually held was “such kind of wicked blasphemous words” are a blasphemous libel. He adds, “If they came before me, I too should hold them without hesitation to be a blasphemous libel.”
The question is whether according to Lord Hale the substance or the form is the important thing; whether the law forbids the expression in any language whatever of certain opinions, or whether it only enjoins an observance of “the decencies of controversy.” Examine Lord Hale’s observations on each of these suppositions. If the view taken is that the substance of the things said makes the crime, the whole is not merely consistent, but plain and simple. The fundamental doctrines of Christianity are the great sanction of civil society. You revile the author of Christianity and denounce religion as a cheat: this is a crime against the State. What can be clearer, more simple, more completely in accordance with what, as we know from other sources, was the opinion of Lord Hale himself, and of all the most eminent men of his time? Next, suppose that Lord Hale held Lord Coleridge’s view, that even the fundamentals of religion may be attacked if the decencies of controversy are observed—how is it possible to reconcile such, an opinion with such a judgment? In the first place, in order to do so the reason on which the decision is based must be set aside and distinguished from the decision itself. If a man has a right to say in respectful language that religion is not true, can it possibly be alleged that “ to say religion is a cheat is to dissolve all those obligations by which civil societies are preserved,” and is therefore a crime? I cannot myself believe that the word “cheat” can make any difference. A serious and perfectly respectful argument to show religion to be false has a much greater tendency to invalidate any sanction which it may give to society than the use of the word “cheat.” Again, if Lord Hale held Lord Coleridge’s view, how is it possible to explain not only his words but his silence? Why did he not tell the jury that Taylor had a right to attack even the fundamental doctrines of Christianity if he did so in good faith and in decent language, and that the question for the jury to determine was whether the language used was decent and was employed in good faith? In fact, his language is inconsistent with such a direction. He held, to take Lord Coleridge’s own view of the case, that “such kind of wicked blasphemous words ” are a blasphemous libel, apparently whether used in good faith and by way of serious argument or not. What is more singular, is that Lord Coleridge says that if they came before him he “should hold them without hesitation to be a blasphemous libel.” I do not understand how he could do so consistently with the doctrine laid down in other parts of the summing-up. He certainly did not do so in Foote’s case, although the words used and the pictures exhibited appear from the indictment1 to have been at least as offensive as the words used by Taylor. I should consider them much more offensive. [Given in R. v. Ramsey and Others. Cabal)é & Ellis, 126. The passage referred to as to the birth of Christ is too disgusting to quote. It is printed at p. 128. The pictures are described at pp. 130, 131.] To say that Christ was “a bastard” is coarse and brutal; but to expand the assertion into ten or twelve lines of the foulest ribaldry, in which it is difficult to say whether indecency or vulgarity is the predominating feature, is surely much worse. I do not know why Lord Coleridge should be prepared to “hold without hesitation” that the use of the one word constituted a blasphemous libel, whilst he thought it necessary to direct the jury that it was for them to say whether the foul tirade to which I have referred was or was not “a permissible attack on the religion of the country.” Every expression used by Taylor may upon the principle laid down by Lord Coleridge have been justifiable. If the miraculous part of the account of the birth of Christ is not believed, and if it is believed that he was not the son of Joseph. Taylor’s expression is merely the blunt statement of a fact. As to the other word used it goes a step, but only one step, beyond some of M. Renan’s delicate phrases.
[“Les femmes en effet aceueillaient Jesus avec empressemcnt. Il avait avec elles ces manieres roservées qui rendent possible une fort deuce union d‘idées entre les deux sexes." “Trois ou quatre Galiléenncs devouées aeeompagnaient toujours le jeune maitre, et se disputaient 1e plaisir dc l‘écouter et le soigner tour a tour." Vie de Jésus, 15th ed., p. 157. I can imagine a Christian feeling more aggrieved and pained by this exquisitely delicate language than by Taylor’s rough word; but that is a matter of taste.] It can hardly be the law that a man should be allowed to say that all religion is false, but that it should be a blasphemous libel to say it is a cheat. And if a man has a right to deny the existence both of God and of the devil, why should he be forbidden to say that he fears neither of them?
The next case referred to by Lord Coleridge is that of R. v. Woolston. He says of it that “Woolston was convicted of blasphemous discourses upon the miracles of our Lord. The court, as reported by Fitzgibbon, lay very great stress on what they call ‘general and indecent attacks,’ and carefully state that they did not intend to include disputes between men on controverted matters. That is the law as laid down by Lord Raymond, a great lawyer no doubt, and a man of high character: though of much which Lord Raymond says, and of many of the expressions in his judgment, I think that time and change have destroyed the authority."
The reports of Woolston’s case are very meagre. I have not seen his book, but a full account of it is given by my brother in his English Thought in the Eighteenth Century. [English Thought in the Eighteenth Century, i. 228-37. Woolston's critics appear to have been nearly as absurd as himself. He was answered, amongst others, by Bishop Smalbroke, who was nicknamed “Split-Devil," for making use of the following argument about the miracle of the swine : “This permission of Jesus to the evil spirit; was amply compensated by casting a whole legion of devils out of one person—that is, by suffering about three of them to enter into each hog, instead of about six thousand of them keeping possession of one man."] According to this account, he was half mad and wholly absurd. “Through six straggling discourses Woolston attempts to make fun of the miracles. There are at intervals queer gleams of distorted sense, and even of literary power, in the midst of his buffoonery . . . He is a mere buffoon, jingling his cap and bells on a sacred theme; and his strange ribaldry is painful even to those for whom the supernatural glory of the Temple has long utterly faded away.” After giving an illustration or two, Mr. Stephen says: “His comments on other miracles are a mere running fire of such strange unseemly fooling.” He, however, professed himself to be a Christian. His view was that, taken literally, the miraculous narratives of the Gospel were absurd and incredible ; but that they were not to be taken literally, but allegorically. “He saw in the marriage at Cana, for example, the mystical union of Christ and his Church. The want of wine means the deficiency of the Holy Spirit; the good wine substituted for the bad means the substitution of spiritual for literal interpretations. Moses is the governor of the feast, and all the fowls of the air are to he invited—meaning all spiritual and heavenly-minded Christians. In defence of these theories he quotes Augustine and other Fathers. The case is shortly reported in Strange, and more fully in Fitzgibbon. The following is the account of it given in Starkie on Libel [Folkard’s Starkie, 595-6.]:—
“The defendant had been convicted of publishing five libels wherein the miracles of Jesus Christ were turned into ridicule, and his life and conversation exposed and vilified. It was moved in arrest of judgment that the offence was not punishable in the temporal courts ; but the court declared they would not suffer it to be debated whether to write against Christianity in general was not an offence of temporal cognizance. It was contended on the part of the defendant that the intent of the book was merely to show that the miracles of Jesus were not to be taken in a literal but in an allegorical sense; and therefore that the book could not be considered as aimed at Christianity in general, but merely as attacking one proof of the divine mission. But the court was of opinion that the attacking Christianity in that way was attempting to destroy the very foundation of it; and though there were professions in the hook to the effect that the design of it was to establish Christianity upon a true foundation, by considering those variations in Scripture as emblematical and prophetical, yet that such professions could not be credited, and that the rule was ‘allegatio contra factum non est admittenda,’ and the court, in declaring that they would not suffer it to be debated whether writing against Christianity in general was a temporal offence, desired that it might be noticed that they laid their stress upon the term general, and did not intend to include disputes between learned men on controverted points; and Lord Raymond, C.J., in delivering the opinion of the court said: ‘I would have it taken notice of that we do not meddle with any differences in opinion, and that we interfere only where the very root of Christianity is struck at ;’ and with him agreed the whole court.”Time and change may or may not have destroyed the authority of many of the expressions in Lord Raymond’s judgment; but they most surely have destroyed the judgment itself if the summing-up in R. v. Foote is correct. The proposition that “It is a temporal offence to write against the truth of Christianity in general,” which is the foundation of the judgment in R. v. Woolston, and the proposition that “If the decencies of controversy are observed, even the fundamentals of religion may be attacked without a person being guilty of blasphemous libel,” which is the direction of Lord Coleridge in R. v. Foote, appear to me to be contradictory. It is to be observed that though Woolston’s language appears to have been highly indecent and objectionable in itself, and apart from the subject-matter, it was treated as being criminal not on acconnt of its style, but on account of its substance, because, in the opinion of the court, it “struck at the root of Christianity "—because it “attempted to destroy the foundations of Christianity:” not at all because “the decencies of controversy” were not observed, although no doubt they were in fact violated. The last of the cases which Lord Coleridge refers to is R. v. Waddington. [Barnewell and Crosswell, 26. I notice a few unimportant deviations from the precise language of the report. The italics throughout are Lord Coleridge's.] His observations on it are as follows [These words are in the Report.]—
“There is then the case which is commonly cited as bringing the law down almost to our own times—the case of R. v. Waddington, tried before Lord Tenterden and reported in Barnewell and Cresswell. The words of the libel were that Jesus Christ was an impostor, a murderer [in principle], and a fanatic. The Lord Chief Justice laid it down that it was a libel, and a juryman asked the Lord Chief Justice whether a work which denied the divinity of our Saviour was a libel. New, mark the answer given by Lord Tenterden, one of the most cautious and justly respected of men. He answered that a work speaking of Jesus Christ in the language referred to was a libel. [Christianity being a part of the law of the land?] That ruling was questioned in the King's Bench, before Lord Tenterden himself and Bayley, Holroyd, and Best, JJ. The three judges first named were as great lawyers as ever adorned our Bench; and though Best, J ., was a much abler judge than it is nowadays the fashion to call him, still no one but would consider him the inferior of the other three. But when the case was moved in the King's Bench, Lord Tenterden said: ‘I told the jury that any publication in which our Saviour was spoken of in the language used in this publication’ was a libel, and I have no doubt whatever that it is so. I have no doubt it is a libel to publish the words that our Saviour was an impostor, a murderer (in principle). and a fanatic.’ Mr. Justice Bayley says : ‘It appears to me that the direction of the Lord Chief Justice was perfectly right. There cannot be any doubt that a work which does not merely deny the godhead of Jesus Christ, but which states him to have been an. impoator and a murderer [in principle [In the Report it is], is at common law a [blasphemous] libel, and that therefore the direction was right in point of law.’ Mr. Justice Best gives a longer judgment, in more rhetorical language but to the same effect, and he concludes, ‘It is not necessary for me to say whether it be libellous to argue from the Scriptures against the divinity of Christ. That is not what the defendant professes to do.‘ [He argues against the divinity of Christ by denying the truth of the Scriptures. A work containing such arguments, published maliciously, which the jury have found in this case, is by] ‘ the common law a libel, and the Legislature has never altered the (this) law, nor can it ever do so while the Christian religion is considered to be the basis of that law.’ New, this is the case which is often cited, I must think by those who have not read it, as an authority that any attack upon Christian doctrine, however respectful and decent in language, is by law a blasphemous libel. It is authority, I think, for nothing of the kind. It binds me here, no doubt, and I shall direct you according to what I conceive is its meaning."
It is probable that this case may have been cited as proving a proposition which it does not prove; and I agree with Lord Coleridge that it cannot be said to lay down in terms the proposition which he states as not being affirmed by it. I think, however, that it implies that proposition, and that it is inconsistent with—-though I cannot say that, like R. v. Woolston, it is contradictory to—the proposition that the fundamental doctrines of religion may be attacked if the decencies of controversy are observed. In the first place, what was the direction the whole court held to be proper? It was that it is a libel to speak of Christ as an impostor, a murderer in principle, and a fanatic. This direction appears to have been quite unqualified, and to have been founded on the principle that Christianity is a part of the law of the land. Not a word was said about the decencies of controversy, or to the effect that the jury must go behind the words and look to the intention and good faith of the author. Lord Tenterden and Mr. Justice Bayley say that it is a libel to publish the words just quoted. Is it credible that any judge of that court would have directed a jury, that it is not necessarily a libel to publish the words “The God whom Christian love and adore is depicted in the Bible with a character more bloodthirsty then a Bengal tiger”? or the words “The very crimes which God once on a time scandalously licensed for the special behoof of his chartered libertines”? Can it be true that it must be a libel to publish the words “Jesus Christ is an impostor, a murderer in principle, and a fanatic,” and yet that it need not necessarily be a libel to publish words (I do not quote them) implying that God “instigated and condoned” every sort of crime, including “lying, killing, and adultery”? Either of these directions may be correct, but it appears to me impossible that both can be so.
It appears to me incredible that Lord Tenterden could have ruled as he did if he had held Lord Coleridge’s view of the law, not only because he says nothing of decency, or good faith, or intention, but because there is really nothing in the language used in Waddington’s case which, apart from the meaning it conveys, can be regarded as indecent. As to the expression “murderer in principle” I do not understand what it can have meant; but in the mind of an excited controversialist it might possibly be suggested by such a text as, “I came not to send peace, but a sword.” “Impostor ” and “fanatic” are words which express, with no special indecency, a view which a man might take in good faith of the character of Jesus Christ. Is it a blasphemous libel to apply the words impostor or fanatic to Mahomet, who is regarded by many millions of Her Majesty’s subjects with a reverence akin to that which not so many more millions of her subjects feel for Jesus Christ ? According to Lord Coleridge’s doctrine, as I understand it, it would be perfectly justifiable to publish in good faith, and as the expression of a real belief, such words as these: “I believe that Jesus Christ assumed the character of God incarnate, though he knew that he was not entitled to it. I also believe that he was a man of very strong religious feeling, and that his temperament in certain cases made him not and think unwisely.” What is this but expanding into equivalent phrases the two words impostor and fanatic? M. Renan distinctly thinks, for reasons which he gives at length, that Jesus Christ was a fanatic and to a certain extent an impostor.
[(1) He says in reference to the Miracles (Vin de Jésus, 16th edition, p. 277): “Nous admettrons done sans hesitation que des actes qui seraient maintenant considérés comme des traits d'illusion ou de folie out tenu une grande place dans la vie de J ésus. Faut-il sacrifier a ce coté ingrat le coté sublime d‘une telle vie? Gardens-nous-en!" And again, at p. 331 : “Jésus n'otait plus libre; i1 appartenait a son role, et en un sens à l'humanité. Quelquefois on out dit que sa raison se troublait. ll avait comma des angoisses et des agitations intérieures. La grande vision du Royaume de Dicu sans cesse flamboyant devant ses yeux lui donnait lo vertige. I1 faut se rappcler que ses proches par moments l‘avaient cru fou, que ses ennemis lo déclaraient possédé. Son tempérament excessivement passionné lu portait a chaque instant hors des homes de la nature humaine." In the earlier editions of the same work, unless I am mistaken, the raising of Lazarus was described as a pious fraud, to put it plainly. In the sixteenth edition this suggestion, which gave offence, is replaced (p. 372-3) by a curious suggestion that perhaps Mary and Martha suggested to Jesus that if a dead man were raised to life the people of Jerusalem might be converted, whereupon “Lazare reviendrait, pouvait-il dire qu'on no le croirait pas. Plus tard i1 s'établit a ce sujet de singulieres méprises. L'hypothese fut changé en un fait." I prefer bluntness, I own, to such hypotheses as this.]
The quotations given below show clearly that the opinions expressed by the words held to be libellous may be held in good faith. They may therefore have been so held by the defendant in R. v. Waddington; and if it was lawful for him (as Lord Coleridge holds) both to hold and to express them, what was there to object to in the words used? Would a delicate, mineing circumlocution have made them any better? Can it be the law that a man should be forbidden to use the word “impostor” and be allowed to charge the facts which that word aptly describes? This seems to me to be like saying that you must not call a man a. thief, but that you may say that he fraudulently and without claim of right and against the owner’s will, took and carried away some one else’s purse with intent to appropriate it permanently to himself.
For these reasons, it appears to me that R. v. Waddington, though it certainly does not in express terms assert, does nevertheless imply, the doctrine on which the earlier cases proceed, and that it is inconsistent with the law as laid down by Lord Coleridge.
I will add one further remark upon it. Every one will agree with Lord Coleridge both as to the eminence and as to the caution of Lord Tenterden; but I think that Lord Coleridge does not correctly apprehend the point in which in the case of R. v. Waddington his predecessor displayed that quality. Lord Coleridge italicises and appears to attach importance to the words “such language,” as if they indicated that the fault lay, not in the matter expressed, but in the words used to express it. In order to understand Lord Tenterden’s ruling we must look at the question to which his words were an answer. A. juryman asked him whether a work which denied the divinity of our Saviour was a libel? Lord Tenterden’s caution appeared in his not giving a direct answer. He did not say that such a work would not be a libel; he said to the juryman that a work speaking of Jesus Christ in “the language used in the publication was a libel.” He said in the Court of King’s Bench, in perpectly unqualified terms: “I have no doubt whatever that it is a libel to publish” [apparently in whatever language] “ that our Saviour was an impostor and a murderer in principle.” The other judgments carefully avoid saying that it is not a libel to deny the divinity of Christ. Mr. Justice Best expressly says: “It is not necessary for me to say whether it be libellous to argue from the Scriptures against the divinity of Christ. That is not what the defendant proposes to do." Lord Tenterden and Mr. Justice Bayley both chose language which left open that question ; and I think that the answer given by Lord Tenterden to thej uryman shows that he was anxious to do so. In our days, no doubt, it may cause surprise that there should be a doubt on such a subject ; but in 1822, when R. v. Waddington was decided, the matter was not so clear. Unitarians, as we should now call them, were excluded from the benefits of the Toleration Act (1 W. and M., Sess. 1, c. 18, s. 17); and they were also subjected to penalties by 9 and 10 Wm. III., c. 32, s. 1. The 17th section of the Toleration Act, and the part of the statute of William III. which applied to Unitarians, were repealed by 53 Geo. III. e. 160 ; but this repeal left the common law as it was, and whether the expression of opinions which had been so long the subject of special statutory penalties was not punishable at common law was a question on which the judges in Waddington's case might naturally not wish to commit themselves. It was not necessary for their decision that they should do so; and they accordingly decided the case on its own merits. In short, the judgment of the whole court seems to me to come to this. Whether it is or not a blasphemous libel to deny the divinity of Christ we are not called upon to decide; but we do decide that it is a libel to call him an impostor.
In support of this view I would refer to the case of the Attorney General Pearson (3 Merivale, 3-53), decided by Lord Eldon in 1817. In that case Lord Eldon expressed a. doubt whether the impugning of the Trinity was not an offence punishable at common law, and expressed an opinion that if it was, the law was not altered—either by the statute of William III., which imposed special penalties on all persons brought up as Christians who denied that amongst other doctrines, or by 53 Geo. III. e. 160, which relieved Unitarians from the operation of the statute of W'illiam. No doubt the Court of Queen’s Bench had this decision in their mind when they decided R. v. Waddington.
Lord Coleridge quotes only one other case, Cowan v. Milbourne (L. R., 2 Exch. 230). This, he says, was an action in which the owner of some rooms justified a breach of his contract to let them on the ground that they were to be used for lectures directed against the character of Christ and his teaching. The defendant’s justification was upheld by the court. Lord Chief Baron Kelly’s judgment, says Lord Coleridge, “goes the full length of the doctrine” [that to attack Christianity is to expose yourself to an indictment for libel] “contended for; and from his reasons, on the grounds already stated, I respectfully dissent. But Lord (then Baron) Bramwell puts his concurrence in the judgment on a different ground. He bases it on the fact that the statute of William III. is still unrepealed.” On this I have only to say that Lord Coleridge admits that Lord Chief Baron Kelly so lately as in 1867 judicially took the view of the law which I, as at present advised, believe to be the true one. Lord Bramwell said nothing against it. He admitted that a lecture the title of which was, “The Character and Teachings of Christ; the former defective, the latter misleading,” must be an offence against 9 and 10 Wm. III. c. 32.
I may here notice one case which is not referred to by Lord Coleridge, and which probably escaped his attention, as it is not often referred to, and is reported only, so far as I know, in the Jurist. [5 Jam:, 529.] It is, however, a case of very great importance; because it was decided so lately as 1841 by the full Court of Queen’s Bench, long after the law as to Roman Catholics, Dissenters, Unitarians, and Jews had been put upon its present footing, with insignificant exceptions. [Several obsolete Acts which had long been practically superseded were repealed in 1847, and some years afterwards means were taken by which Jews were enabled to sit in Parliament.] The judges who decided it were Lord Denman, Mr. Justice Pattison, and Mr. Justice Littledale. The indictment is net given in the report, but I had an abstract of it made from the original at the Crown Office. It is in three counts, each of which sets out a passage of the work prosecuted. It charges that the defendant, being a wicked, &c., person having no regard for the laws and religion of this realm, but impiously, &c., devising and intending to asperse and vilify that part of the Holy Bible which is called the Old Testament, published a libel containing impious matters of and concerning the Old Testament. The first passage begins: “What wretched stuff this Bible [meaning that part of the Holy Bible called the Old Testament] is, to be sure! What a random idiot its author must be! ” and goes on to advise that it should be burnt, “that posterity may never know that we believed in such abominable trash;.” and more to the same purpose, in very violent language. The second count is founded on a passage which says: “The great question between you and me is, Is the Bible the Word of God, or is it not? I assert that it is not the Word of God, and you assert that it is. And I not only assert that it is not the Word of God, but that it is a book containing more blunders, more ignorance, and more nonsense, than any book to be found in the universe.” The third count is founded on a passage in which the author says his object is “to expose this book [meaning the Old Testament] in such a manner that the children of the Stockport Sunday-school will reject it with contempt,” &c. The case was tried before Lord Denman, and he “told the jury that if they thought the libel tended to question or cast disgrace upon the Old Testament it was a libel.”
The report proceeds: “Thomas moved in arrest of judgment, on the ground that it is not blasphemous to libel the Old Testament. All the cases of indictment for blasphemy against the Holy Scriptures are for matters directed against Christianity and religion together.” He quoted, amongst other things, the passage in Starkie referred to by Lord Coleridge.
Upon this the court gave judgment as follows:—
Lord DENMAN, C. J. “There is no ground for granting a rule in this case. Though in most of the cases, I believe not in all, the libel has been against the Old Testament, yet the Old Testament is so connected with the New that it is impossible that such a publication as this could be uttered without reflecting upon Christianity in general; and therefore I think an attack upon the Old Testament of the nature described in the indictment is clearly indictable. It is our duty to abide by the law as laid down by our predecessors, and, taking the cases which have been referred to as assigning the limits within which a publication becomes a blasphemous libel, the publication in question is one. As for the argument that the relaxation of oaths is a reason for departing from the law laid down in the old cases, we could not accede to it without saying that there is no mode by which religion holds society together but the administration of oaths. That is not so; for religion, without reference to oaths, contains the most powerful sanctions for good conduct, and I may observe that those who have desired the dispensation from the taking of oaths to be extended have done so from respect to religion, not from indifference to it.”
LITTLEDALE, J. “The Old Testament, independently of its connection with and of its prospective reference to Christianity, contains the law of Almighty God ; and therefore I have no doubt that this is a libel in law, as it has been found to be in fact by the jury.” [Another here says that Coleridge, J., had left the court, probably to attend chambers. It is not said that he differed from the other judges. If he had, he would probably have given some intimation to that effect.]
PATTISON, J. “The alleged mistranslation of a passage in the Year Book referred to is not material, because there are other abundant authorities; and it is certain that Christianity is part of the law of the land. The argument is reduced to this—that an indictment for libel is to be confined to blasphemy against the New Testament. But such an argument is scarcely worth anything, because it is impossible to say that the Old and New Testament are not so intimately connected that if the one is true the other is true also ; and the evidence of Christianity partly consists of the prophecies of the Old Testament.”
[One of the earliest statements of the principle that Christianity is part of the law of the land is a statement made by Prisot, J ., in a case reported in the Year Book. The question was as to the authority of the ecclesiastical law, and Prisot said, amongst other things: “A tielx leis que ils de Saint Eglise out en ancien Scripturo covient a nous a doner credence, car ces common ley sur quel touts maneres leis sont fondes." This it is said ought to be translated, not “ Holy Scriptures” as it sometimes has been, but “ancient writings;" and strong comments have been made on this supposed mistranslation by many writers. One elaborate statement on the subject which seems to me extremely shallow and ignorant is made by Jefferson in a letter to Major Cart— wright (The Life of Cartwright, vol. ii. p. 272-75) : “ . . . Of course ‘ancien' does not mean holy, but I think ‘Scripture ' must mean the Bible, because if the passage is translated ‘ancient writings’ it is the very contrary of the truth; for certainly no part of the law is contained entirely in ancient writings, and least of all the ecclesiastical law."]
This case appears to me of the first importance. There is not one word to be found in it of the supposed right to attack in respectful language the fundamental doctrines of Christianity. Lord Denman’s direction was that if the libel “tended to question or cast disgrace upon the Old Testament it was a libel.” Nothing is said of the good faith or intention or of the good manners of the defendant; nor does it appear to have been suggested that anything of the kind ought to have been said. The passage from Starkie to which Lord Coleridge attached so much importance was referred to by the counsel, and was not accepted by the court; and though the language used by the defendant was violent and indecorous, the court do not in their judgment refer to that fact, but treat it as a crime to attack Christianity in general, on the ground that their predecessors had done so, and on the ground taken by their predecessors that Christianity is part of the law of the land, in the sense of being one of the great sanctions by which social duties are guarded. In a word, R. v. Hetherington reaffirmed in 1841 the doctrines laid down in R. v. Woolston more than a century before. What, I ask, has happened since 1841 to change the law? There has been, no doubt, an immense change in theological controversy. A whole literature, a whole way of thinking, which at that time was almost entirely unknown, has become commonplace since then. Strauss’s Leben Jesu was published, I think, in 1836; but it had attracted no general attention in England in 1841, if it had been translated. The revolution in modern science which is associated with the name of Darwin was in 1841 unsuspected. The habit of explaining away opinions and beliefs by relating their history had not begun to be formed. But, vitally important as all this is in a speculative point of view, what has it, what can it have, to do with law? Have the judges the power to remodel the law according to the changes of the course of thought? Could we, for example, do away with the offence of blasphemous libel altogether by declaring that so much doubt had been thrown on the fundamental doctrines of religion by recent speculation, that it was no longer proper to punish those who denied them? If not—and this will hardly be maintained—is it right to soften and evade a law because we may think that it ought to be abolished? I cannot think so.
I turn from the cases to the reasons which have led Lord Coleridge to the result which he reached. I should be glad to be convinced, but they do not convince me. He says: “It is no longer true in the sense in which it was true when these dicta were uttered that Christianity is part of the law of the land. In the time when these dicta were uttered, Jews, Roman Catholics, Nonconformists of all kinds, were under heavy disabilities for religion, were regarded as hardly having civil rights. Everything almost, short of the punishment of death, was enacted against them." Now these disabilities are removed. The late Master of the Rolls might have had to go circuit and to try as for a blasphemous libel a Jew who denied that Christ was the Messiah, “a thing which he himself did deny, which Parliament had allowed him to deny, and which it is just as much part of the law that any one may deny, as it is your right and mine if we believe it to assert.” Apart from this, Lord Coleridge argues that if it is illegal to attack Christianity because it is part of the law of the land, that implies that to attack any part of the law would be, if not blasphemous, yet seditious; and this, he truly says, is an absurdity. For these reasons, “to base the prosecution of a bare denial of the truth of Christianity, simpliciter and per se, on the ground that Christianity is part of the law of the land, in the sense in which it was said to be by Lord Hale and Lord Raymond and Lord Tenterden, is, in my judgment, a mistake. It is to forget that law grows, and that though the principles of law remain unchanged, yet (and it is one of the advantages of the common law) their application is to be changed with the changing circumstances of the times."
Several questions arise upon this. In the first place, has Lord Coleridge rightly understood the maxim put forward by Lord Hale, Lord Raymond, Lord Tenterden, Lord Denman, and Lord Chief Baron Kelly? He seems to regard it as the minor of a syllogism of which the major is the absurd proposition that to attack any part of the existing law is criminal. Of course no such proposition could be supported. The law has been the subject of criticism and improvement from the days of Bracton to our own. I do not believe, however, that any one ever understood the maxim in question in this sense. It is, like other legal maxims, merely a striking but inaccurate form of expression, easily remembered, but not claiming the sort of truth or completeness which is essential to the propositions of syllogisms. I believe it to have meant no 'more than this—that Christianity has in fact had an immense influence on the formation of the whole of our law (which is indisputably true); that a belief in its truth affords a moral support and sanction to the law which nothing else is capable of affording (which opinion is still held by many persons, and amongst others by myself); and, lastly, that for these reasons it is expedient to treat its denial as a crime. If I were a legislator I should not agree with this inference, because a large and increasing number of persons believe in good faith that whatever would be the moral and political advantages of Christianity if it were true it is not true; and I do not think it expedient, but the reverse, that such persons should be punished for expressing their opinions. If this view of the meaning of the maxim in question and of its connection with the law is correct, how has its truth been affected by the changes in the law to which Lord Coleridge refers? They are three in number, and consist of the relief from disabilities of Protestant Dissenters, of Roman Catholics, and of Jews.
Upon this I may observe in general that it seems, strange to say, that the assertion that Christianity is part of the law of the land means that the law of the land imposes disabilities on particular classes of Christians. In a case already referred to, Lord Eldon distinguishes between Christianity and the Church of England, and remarks that the Statute of William III., which was meant to protect the one, had nothing to do with the other. The principal Christian doctrines regarded as affording a sanction to temporal laws and institutions are, to use Blackstone’s words, “the being and providence of God;” and the illustration which he gives of its use is the practice of judicial oaths. How could the recognition of this doctrine be affected by the imposition for political purposes of disabilities upon Roman Catholics, and by the imposition for ecclesiastical purposes of disabilities upon Protestant Dissenters? Who, being interested in the removal of those disabilities, would ever have admitted that if they were removed Christianity would cease to be part of the law of the land? Who would not have repudiated the inference that the common law prohibition of the public advocacy of atheism would be impliedly repealed by the passing of the Catholic Emancipation Act? It seems to me paradoxical to assert that the toleration of different forms of Christianity, and even of Judaism, is inconsistent with a rule that the foundation on which all Christianity rests, and of which the most important part is derived from Judaism, are not to be attacked. Who can seriously say, Roman Catholics and Jews being admitted into Parliament, a belief in the providence of God and a future state of rewards and punishments ceases to afford motives to a virtuous life?
This argument is, however, not merely paradoxical. It is, I think, historically incorrect. The application of the maxim that Christianity is part of the law of the land to the punishment of blasphemous libels was a relaxation of the older law. It was practically a substitute for the proceedings of the High Commission, and the other ecclesiastical courts, which were in part abolished and in part disabled by the legislation of 1640 as modified at and after the Restoration. As the ecclesiastical view of heresy was given up it was considered necessary to inflict temporal punishment on those who denied the fundamental doctrines of religion, which were regarded as of temporal importance. The common law maxim did not arise out of the imposition of penal laws upon Dissenters and Catholics. It arose out of the discontinuance of persecution for heresy. The argument was not, “Because Roman Catholics and Dissenters are put under penalties atheists also shall be punished.” It was, “Although heretics are no longer to be burned, and although the ecclesiastical courts are disabled or abolished, yet the profession of atheism shall not go unpunished.”
It is further to be observed that the doctrine that Christianity is part of the law of the land was laid down not only in 1867 by Lord Chief Baron Kelly, from whom Lord Coleridge differs, but in 1823 by Lord Tenterden and his fellows, in a case by which Lord Coleridge admits himself to be bound, and in 184l by the case which I have fully cited, and which was not brought under his notice, but which is equally binding. Now in 1823, though the Roman Catholics were still excluded from Parliament by the test oath, they had ever since the 31 Geo. III. c. 32, passed in 1791, been relieved from all the more serious disabilities which previously affected them; and ever since the Toleration Act the Protestant Dissenters had been practically in much the same position as they hold at present. It is obvious, then, that whatever sense Lord Tenterden attached to the maxim that Christianity is part of the law of the land, he cannot have thought that it would cease to be so if the Roman Catholics were allowed not only to vote for members of Parliament, but also to be elected as members. In 1841 Lord Denman and his colleagues thought as Lord Tenterden thought in 1823, though in the interval the law had been brought substantially into its present state.
The position of the Unitarians is peculiar, and illustrates in a remarkable way the steps by which opinion changes on these matters. First there was no definite law against heresy because there were no heretics, but only a vague tradition that heretics had existed in distant times. When heresy began to exist in England, the bishops were allowed for a hundred and fifty years to define it as they pleased. Parliament by degrees took their place, and for a time in Henry V1II.’s reign fastened on transubstantiation as the characteristically Christian doctrine which must not be denied whatever else was regarded as matter of opinion. After an interval the doctrine of the Trinity was viewed in the same light, and Unitarianism, as we should now call it—it was then known as the doctrine of the Anabaptists—was regarded as criminal, first in the highest and afterwards in a lower degree. Several Unitarians were burnt in Elizabeth’s reign, two in the reign of James I.; one narrowly escaped hanging under the Commonwealth. After 1677 Unitarians were for a short time in the same position as other Nonconformists. But in 1688 they were excluded from the Toleration Act; they were included in the 9 and 10 Wm. III. e. 32, and were not relieved from it till 1813; and even so late as 1822, as I have already shown, a doubt still remained whether to publish Unitarian doctrine was not a blasphemous libel at common law. This doubt is unquestionably set at rest. Various decisions in the Court of Chancery have certainly established the proposition that the profession of Unitarianism is in no sense of the word illegal. The result is that it has by degrees become a permitted form of religion; but this has been by the effect of a definite series of statutes, not by any unseen process of growth in the law.
As for the Jews, so far as I have been able to ascertain, they never were under any statutory or common law disability whatever, except as follows. There was a statute of the time of Henry III., “De Judaismo,” which made regulations for the Jews; but as they were expelled from England by Edward I., it became a mere antiquarian curiosity almost as soon as it was passed. Under Cromwell they returned, and were never in any way disturbed, interfered with, or put under disability, except by 1 Anne, st. 1, c. 30, which empowered the Chancellor to compel them to provide for any of their children who might become Protestants. The oath required of members of Parliament was also drawn in terms which, probably by accident, excluded them from sitting in Parliament. The statutes of Anne and of Henry III. were repealed in 1847 by 9 and 10 Vic. c. 59, which enacted that in respect of their schools, places for religious worship, education, and charitable purposes, and the property held therewith, Jews should be on the same footing and subject to the same laws as Protestant Dissenters; and the oath to which they objected has been remodelled.
No doubt this Act authorises the teaching and preaching of Judaism, and no doubt also Judaism is opposed to that part of Christianity which depends upon the life and teachings of Christ; and the argument is that this shows that it can no longer be affirmed that every writing by which “the root of Christianity is struck at” must be a blasphemous libel. I should doubt whether Judaism “struck at the root of Christianity.” Judaism is itself one of the roots of Christianity. The Christian doctrine of God and God’s providence is the Jewish doctrine of God and God’s providence. The Christianity of which Lord Raymond spoke seems to me to have been rather that part of the Christian religion which has an immediate bearing upon conduct than a theological system. I admit, however, that the toleration of Judaism proves that the rule laid down in the cases referred to is subject to an exception in respect of such a striking at the roots of Christianity as is involved in the profession and teaching of the Jewish religion. I believe, however, that the exception was in force and would have been admitted had attention been directed to it at the time when the cases already referred to were decided. The statute of William III. already noticed is in its present form confined to persons educated as Christians, or having at any time made profession of Christianity, and the words affecting this restriction were inserted in the bill after a conference between the two Houses in which the House of Commons suggested that the Lords could hardly wish the Act to apply to Jews. They obviously therefore thought that the profession of the Jewish religion was not a crime, apart from the statute. The House of Lords agreed with them.
When full allowance has been made for all this, let us consider what may still be said with perfect truth by a person who considers that Christianity is part of the law of the land in the sense already explained. First, he may say that, as an historical fact, Christianity has exercised a great influence on the gradual construction of the law of the land, and never more than in our own days, and that whatever sanction to good conduct in this world is afforded by a belief in God and his providence is as much afforded now as it ever was. Secondly, he may say that a particular form of the Christian religion is established as the National Church by the law of the land, which defines its doctrines and regulates its services. Thirdly, he may say that on many solemn occasions ceremonials are publicly observed which depend more or less obviously and directly upon Christianity. The Coronation is a striking illustration. The administration of judicial oaths on "the holy gospels of God” is another. Fourthly, he may say that by the statute 9 and 10 Wm. III. c. 32, as modified by 53 Geo. III. e. 160, it is enacted that every person who, having been educated in, or having at any time made profession of, the Christian religion within this realm [that is, nearly the whole population of England—the Act does not extend to Scotland or Ireland], by writing, printing, teaching, or advised speaking, denies the Christian religion to be true, or the Holy Scriptures of the Old and New Testament to be of divine authority, shall be liable to certain penalties by the Act provided. Fifthly, he may say that by 529 Ch. II. o. 29, every one in England, whether a Christian or not, who is guilty of “ atheism, blasphemy, heresy, schism, or any other damnable doctrine and opinion,” is liable to ecclesiastical censure, though he can no longer be burned alive; and such censures are enforceable by imprisonment not exceeding six months.
So long as each of these five propositions is true beyond all possibility of contradiction, it seems to me premature to say that the maxim laid down by so many judges down to 1867 has ceased to be true in the sense in which they used it.
But we are told that to take this view is “to forget that law grows.” Certainly it would be a great mistake to forget this ; but it is an equally great mistake to forget that the word “grows ” is only a metaphor. Laws do not and cannot “grow” of themselves, like trees: they grow only in the sense of being gradually constructed. They are to a great extent constructed by judicial decisions; and no doubt the gradual accumulation of such decisions may be compared to the process of growth. A vast mass of law, to take one instance out of a multitude, grew up on the question of the liability of employers to workmen for injuries received by the negligence of fellow-workmen—the root from which it grew being the case of Priestly a. Fowler, the first decision on the subject. This case laid down for the first time a general principle; and subsequent litigation disclosed by degrees a variety of distinctions and limitations which affected its application under particular circumstances. These again were considered to involve hardships to workmen, and were the occasion of the well-known Employers’ Liability Act, passed two or three years ago. This is one instance of the growth of law. The history given in the early part of this article of the growth of this particular branch of the law is another: and thousands might be given.
This growth, however, is a perfectly plain process, free from all mystery whatever; the precise length to which it has gone may be ascertained at any given moment. The statutes grow and can grow only by the process of parliamentary legislation. No lapse of time or change of feeling affects the legal force of any statute. The case law, or common law, grows by the accumulation of decisions in which the judges are bound to decide according to established precedents and principles, whether they personally agree with or differ from them; whereas Lord Coleridge’s language almost seems to imply that if a rule of law be laid down by judges which in process of time ceases to be expedient, later judges may do away with it because it has, in their opinion, ceased to be expedient.
It seems to me that when a definite rule of law has once been laid down by the judges, and has long been acquiesced in by the public, it acquires the force of law, and can be altered only by Parliament even if the state of things which caused it to be laid down has altogether altered. There are many rules, especially in the criminal law, which are now so well settled that no modern judges have ventured to alter them; though they are very technical, and though the circumstances under which they were laid down have long since altered. The constructions put upon the law of treason as defined by 25 Ed. 111., are one instance. The rule of law as to conspiracies in restraint of trade, which gave rise to so much legislation and so many disputes a few years ago, is another.
There, no doubt, is one authority previous to R. v. Foote which may be cited in support of the doctrine laid down in it. This is the case of R. v. Pooley, [See my Digest, Art. 161. No. 108.] in which Lord Coleridge was counsel for the prosecution and his late father was judge. The case is strong, because no judge who ever sat on the Bench was less likely to be unduly favourable to blasphemous libels than Mr. Justice Coleridge—and, indeed, the sentence passed by him upon Pooley was criticised on the ground of over-severity. The direction was given on circuit, and not 'I think, after argument; but I do not at all wish to underrate its importance. The authority on which it was based is a passage in Starkie on Libel, which I believe was quoted by Lord Coleridge in his capacity of counsel for the prosecution. He has now judicially held that that passage contains a correct statement of the law. I give a copy of it in a foot-note.
[“There are no questions of more intense and awful interest than those which concern the relations between the Creator and the beings of his creation ; and though, as a matter of discretion and prudence, it might be better to leave the discussion of such matters to those who, from their education and habits, are most likely to form correct conclusions, yet it cannot be doubted that any man has a right, not merely to judge for himself on such subjects, but also, legally speaking, to publish his opinions for the benefit of others. When learned and acute men enter upon these discussions with such laudable motives, their very controversies, even where one of the antagonists must necessarily be mistaken, so far from producing mischief, must in general tend to the advancement of truth and the establishment of religion on the firmest and most stable foundations. The very absurdity and folly of an ignorant man who professes to teach and enlighten the rest of mankind are usually so gross as to render his errors harmless. But be this as it may, the law interferes not with his blunders so long as they are honest ones—justly considering that society is more than compensated for the partial and limited mischief that may arise from the mistaken endeavour of honest ignorance by the splendid advantages which result to religion and to truth from the exertions of free and unfettered minds. It is the mischievous abuse of this state of intellectual liberty which calls for penal censure. The law visits not the honest errors, but the malice, of mankind. A wilful intention to pervert, insult, and mislead others, by means of licentious 'and contumelious abuse applied to sacred subjects, or by wilful misrepresentations, or artful sophistry, calculated to mislead the ignorant or unwary, is the criterion and test of guilt.
“A malicious and mischievous intention, or what is equivalent to such an intention, in law, as well as morals—a state of apathy and indifference to the interests of society, is the broad boundary between right and wrong."—Folkard‘s Starkie, pp. 569, 600.]
Lord Coleridge in one part of his summing-up speaks of Mr. Starkie with extreme respect. He goes so far as to say, “If ever the task of law-making could be safely left in the hands of any man, it might have been in his.” I do not agree in this opinion. Mr. Starkie’s writings appear to me to be heavy, awkward, and most obscure; and in particular he seems to me to have been unaware of the importance of definite language in relation to legal subjects. He always prefers two words to one, and never distinguishes between them. The phrases “firmest and most stable foundations,” “absurdity and folly of an ignorant man,” “professes to teach and enlighten,” “partial and limited mischief,” “free and unfettech minds,” occur in seven lines. If all the words italicised were struck out the sense would not be varied; and surely the whole passage is only an exceedingly tedious way of saying that men ought not to be punished for mistakes into which they ignorantly fall in theological speculation. This, however, is merely a speculation as to what ought to be the law, and cannot even claim the character of a statement of an actually existing rule. The only part of the passage which even professes to lay down a legal rule or principle is that which defines what he characteristically calls “the criterion and test of guilt.” He states it twice over. First he says “a wilful intention to pervert, insult, and mislead others by means of licentious and contumelious abuse applied to sacred subjects, or by wilful misrepresentations or artful sophistry calculated to mislead the ignorant and unwary, is the criterion and test of guilt.” He adds : “A malicious and mischievous intention, or what is equivalent to such an intention, in law as well as morals, a state of apathy and indifference to the interests of society, is the broad boundary between right and wrong.” How so great a master of style as Lord Coleridge can admire this flabby verbiage I cannot understand. But, style apart, what does the passage mean? The “test and criterion” stated in the first passage differs widely from “ the broad boundary between right and wrong” referred to in the second. A wilful intention to mislead the ignorant (a) by licentious abuse, or (b) by wilful misrepresentation, or (c) by artful sophistry applied to sacred subjects, is a much narrower definition than the one which follows, which seems to include irreligious matter published with (a) any malicious intention, or (b) in a state of apathy to the interests of society, in respect, I suppose, to the matter treated of.
If the first test is applied no one is a criminal unless he is also a hypocrite. There must be a “wilful intention to mislead the ignorant,” and that intention must be carried into effect either by licentious abuse, or by wilful misrepresentation, or by artful sophistry. The writer must say to himself, I know that the Christian religion is true, but I will try by abuse or by sophistry, which I know to be such, to persuade the ignorant that it is not true. To me this “test or criterion of guilt” appears absurd in itself. Nobody ever could be convicted if it was applied fairly. The one question for a jury would be whether the author really meant what he said. I may observe that if this “test or criterion” is the true one, it is not the one which Lord Coleridge adopts. Not a word in it has reference even indirectly to the decencies of controversy. An ignorant man is likely to be coarse, but if his good faith is the only question to be considered, it is difficult to see how the question of style affects the matter.
The “broad boundary between right and wrong” (which I suppose means lawful and unlawful) is as unsatisfactory as the “criterion and test of guilt.” It is said to be “a malicious and mischievous intention,” or “apathy or indifference to the interests of society.” The intention of every writer in common cases is to convince his readers of the views which he advocates, and the question whether this intention is mischievous or not must depend on the view which the law takes of the matter published. It the law regards the subversion of Christianity as mischievous, an intention to subvert it must be a mischievous intention. As to the word “malicious,” it can mean no more in this connection than intentionally and without justification or excuse. A man who wilfully publishes matter regarded by the law as mischievous publishes it maliciously unless he can produce some special excuse for its publication, as, for instance, that he published it as part of a work intended to refute it, or merely by way of history. To say, therefore, that a mischievous intention is the boundary between right and wrong is trifling, unless we are told what intentions are mischievous, and in particular whether the law regards an intention to subvert Christianity as mischievous. As for “apathy and indifference to the interests of society,” I do not understand how that expression can be regarded as practically identical in meaning with “mischievous intention,” unless Mr. Starkie fell (as I believe he did) into the common and shallow confusion between intention and motive. No doubt if by “malicious intention” he meant “bad motives,” he was consistent in putting apathy to public interest in the same category. If this view is correct, Mr. Starkie ought to have said, “You may attack Christianity in good faith and upon creditable motives, but not from bad motives or without a good motive.” If this was his meaning he might have expressed it plainly with perfect case, but it is obvious to me that he was unwilling or afraid to admit that possibility of sincere and creditable disbelief of Christianity. The whole tone of the passage is that the unbeliever is a poor, vulgar, ignorant wretch, whom it may be well to treat with contemptuous lenity as a rule, but whom you can always punish if he makes himself offensive by imputing to him bad motives, a malicious intention, or indifference to the public interests. This is, however, a way of treating the subject which is wholly undignified, and destitute of that manly simplicity which ought to be the characteristic of the law. There is no reason why the law should not be distinct. Lord Coleridge’s view is perfectly simple and straightforward. The same, I think, may be said of my own theory; but Mr. Starkie’s doctrine appears to me to be as indistinct and disingenuous as his style is obscure and his language embarrassed. There is absolutely no authority whatever for the view which he puts forward, and he cites none. When carefully examined it involves the, to me, absurd conclusion that the criminality of an act depends on the motives of the agent as distinguished from his intention. Mr. Starkie’s view is also opposed to every one of the cases referred to, and to many more which might be cited. I should not have referred at such length to Mr. Starkie’s view but for the importance which Lord Coleridge’s commendation gives to it.
In concluding this part of my observations on this case I ought to make two remarks, each of which makes against the conclusion which I have reached. First, it may be said that this language of Mr. Starkie resembles in a way the sort of language which used to be employed in reference to political libels, and which led in part to the Libel Act of 1792, and to the great change in the law which has followed upon it. This is true, but it seems to me much better to admit the defects of the law and remove them by direct means than to smooth them away by fallacies like Mr. Starkie’s and incorrect eloquence like Lord Erskine’s. [As to this, see my History of the Criminal Law.] The second remark is that it is certainly true that no case can be produced in which a man has been convicted of a blasphemous libel merely for a perfectly decent denial of the truth of Christianity. The truth, I think, is that the law is as I have stated it, but that it has been put in force only in cases where special offence has been given by coarseness or ridicule, or in some instances (as in that of the publishers of Paine’s Age of Reason) by the union of vigorous argument with occasional roughness and vulgarity of expression.
The result of this examination of the authorities appears to me to be that to this day Blackstone’s definition of blasphemy must be taken to be true; and if this is the case, it follows that a large part of the most serious and most important literature of the day is illegal ——that, for instance, every bookseller who sells, every one who lends to his friend, a copy of Comte’s Positive Philosophy, or of Renan’s Vie de Jésus, commits a. crime punishable with fine and imprisonment. It may be said that so revolting a consequence cannot be true; but, unfortunately, this is not the case. I suppose no one will, or indeed can, deny that if any person educated as a Christian, or having ever made profession of the Christian religion, denied that the Bible was of divine authority, even by word of month, he would incur the penalties of the 9 & 10 Will. III. e. 32. I will take a particular instance by way of illustration of this. The late Mr. Greg was not only a distinguished author, but an eminent and useful member of the Civil Service. I suppose he was educated as a Christian, and no one could have a stronger sympathy with the moral side of Christianity. In every one of his works the historical truth of the Christian history is denied; and so is the divine authority of the Old and New Testament. If he had been convicted of publishing these opinions, or even of expressing them to a friend in private conversation, his appointment would have become void, and he would have been “adjudged incapable and disabled in law to hold any office or employment whatever:” in a word, he would have lost his income and his profession. Upon a second conviction, he must have been imprisoned for three years, and incapacitated, amongst other things, to sue or accept any legacy. About this there neither is, nor can be, any question whatever. Law may grow as much as it pleases, but the statute is as valid as on the day when it was passed; and how can it be said that whilst that statute is in full force it must be supposed—first, that the common law never was so inhuman as to treat the profession of atheism as a crime, and next, that if it was, it must be taken to have outgrown its cruelty.
No one can dislike the law as I believe it to be more profoundly than I do; no one can be more firmly convinced of its utter unfitness for these times—if, indeed, it was ever fit for any times. But because I so thoroughly dislike it, I prefer stating it in its natural naked deformity to explaining it away in such a manner as to prolong its existence and give it an air of plausibility and humanity.
Let us suppose for a moment that it were established by law that decent and serious attacks on Christianity are permissible, but that the “decencies of controversy” must be observed, what would be the consequence? First, such a law would never work; and Foote's case proves it. Verdicts by juries have formally no binding force; but practically such a verdict as the one given in Foote's case makes a precedent. If the disgusting tirades, half indecency, half slang, and the disgraceful caricatures, which were merely foul brutalities of the grossest kind, were not violations of the decencies of controversy, what could be? In such cases the following argument will always prevail with juries, more or less consciously. If you allow coarse and vulgar people to discuss these subjects freely, they must and will discuss them coarsely You cannot really distinguish between substance and style. You must either forbid or permit all attacks on Christianity. You cannot in practice send a man to gaol for not writing like a scholar and a gentleman when he is neither one nor the other, and when he is writing on a subject which excites him strongly. As for gentlemen and scholars, this dilemma arises. Either the most bitter and effective of all attacks on the Christian religion must go altogether unpunished, or the law must be committed to a hopeless conflict with antagonists who would evade any attempt to convict them. Any one who has the least familiarity, for instance, with the writings of Voltaire, will appreciate the weight of this. Take, for instance, the play called David. It constitutes, perhaps, the bitterest attack on David’s character ever devised by the wit of man, but the effect is produced almost exclusively by the juxtaposition, with hardly any alteration, of a number of texts from different parts of David’s history. It would be a practical impossibility to charge a jury in such a case, so as to embody Lord Coleridge’s view of the law. The judge would have to say, It is lawful to say that David was a murderer, an adulterer, a treacherous tyrant who passed his last moments in giving directions for assassinations; but you must observe the decencies of controversy. You must not arrange your facts in such a way as to mix ridicule with indignation, or to convey too striking a contrast between the solemn character of the documents from which the extracts are made and the nature of the extracts themselves and of the facts which they relate. How could a jury possibly draw lines so refined? Practically the result would be what it always has been. No such cases would ever be tried; and the result is that so long as the law is what it is, it will always afford an example of that unequal justice which is much the same as injustice. It will be a law which may now and then hit the weak, but which the strong will always evade.
But suppose this difficulty is got out of the way, a greater difficulty remains behind. If the protection of religious sentiment from rough insults is the object in view, what religious sentiment is to be protected? So long as the Church of England occupies its present position the question may in a way be evaded, but if all religious communities were put on one footing, all their creeds must be protected from denunciation or ridicule. The Protestant must not ridicule the Roman Catholic. No one must call Mahomet an impostor. Such a burst of denunciation as Wesley’s famous “appeal to all the devils of hell” against the Calvinists would subject him to fine and imprisonment. The same fate would await those who ventured to laugh at Augusta Comte’s strange parody of Popery. If any modern missionary should address the worshippers of Kali as Elijah addressed the prophets of Baal the law would be violated. In short, any energetic, vigorous denunciation of the weak side of any religious system would be criminal. Even if it were possible, would it be wise to do this? Ought the law to impose on all creeds an eternal uti possidetis? If not, have religious or political changes ever been made by calm and moderate language? Was any form of Christianity ever substituted either for paganism or any other form of Christianity without heat, exaggeration, and fierce invective? To give a single instance out of a million, look at the attacks which Augustine makes upon paganism in the De Civitate Dei. In one particular passage he ridicules the functions of one particular Roman god in language which according to modern taste would be called grossly indecent.
The truth is that effective discussion of subjects in which masses of men are really interested is impossible unless appeals to their passions are allowed. To say that you may discuss the truth of religion, but that you may not hold up its doctrines to contempt, ridicule, or indignation, is either to take away with one hand what you concede with another or to confine the discussion to a small and in many ways uninfluential class of persons. How can you expect men to discuss such questions as the doctrine of the atonement or the doctrine of eternal punishments as calmly as they might discuss questions of philology?
There is one reflection which seems to me to prove with conclusive force that the law upon this subject can be explained and justified only on what I regard as its true principle—the principle of persecution. It is that if the law were really impartial, and punished blasphemy only because it offends the feelings of believers, it ought also to punish such preaching as offends the feelings of unbelievers. All the more earnest and enthusiastic forms of religion are extremely offensive to those who do not believe them. Why should not people who are not Christians be protected against the rough, coarse, ignorant ferocity with which they are often told that they and theirs are on the way to hell-fire for ever and ever? Such a doctrine, though necessary to be known if true, is, if false, revolting and mischievous to the last degree. If the law in no degree recognised these doctrines as true, if it were as neutral as the Indian Penal Code is between Hindoos and Mahometans, it would have to apply to the Salvation Army the same rule as it applies to the Freethinker and its contributors. It would say: “Keep your temper. Do not publicly use language which gives great pain to those who do not believe it to be true, which excites their nerves, disturbs the peace of their families, and often sends, not peace on earth, but a sword, and makes men of two minds in a house. Publish your opinions by all means, but do it decently." Notoriously the law does not hold this language. It is equally notorious that no Act of Parliament passed in order to do so could be executed. Preachers of all sorts would delight in defying such an act. They would say that God had commanded them to preach the Gospel, and that no human prohibition should prevent them—that as to decency of language, the Gospel was not meant to please sinners, but to terrify and subdue them, and that the only true test of decency in its highest and truest sense is efficiency and suitability for the object in view. To these arguments nothing could or would be said. The more possibility of urging them effectually prevents the question from being raised.
‘Mutatis mutandis, these very arguments may be used on behalf of the opponents of Christianity. If there is no hell and no God that we know of, and if the Christian religion is false, why is it to be attacked only in polite language—its goodness depends on its truth? Let its falsehood be conceded, and it is impossible to justify the extension to it of any special protection. But the law imposes no restraint on the Christian, however offensive his teaching may be to those who do not accept it. Therefore it is based not on an impartial desire to prevent the use of language which gives pain. Therefore it is based on the principle that Christianity is true, and is to be protected against attacks. And this is persecution.
What is the practical inference from all this? In my own opinion the practical inference is that blasphemy and blasphemous libel should cease to be offences at common law at all, that the statute of William III. should be repealed, and that it should be enacted that no one except beneficed clergymen of the Church of England should be liable to ecclesiastical censures for “atheism, blasphemy, heresy, schism, or any other opinion.” Such an abolition would not only secure complete liberty of opinion on these matters, but it would prevent the recurrence at irregular intervals of scandalous prosecutions, which have never in any one instance benefited any one, least of all the cause which they were intended to serve, and which sometimes afford a channel for the gratification of private malice under the cloak of religion.
If this is thought too great a concession to make, nearly the same result might be attained by enacting that Lord Coleridge’s doctrine should henceforth prevail, and that no one should henceforth be deemed to commit any offence by maintaining in decent language any religious opinion whatever. 1f Parliament wished to ratify Lord Coleridge’s view, the Act might be made declaratory. This would at all events settle the question; whereas the reasons 1 have given are at least enough to show that a different view of the ' law from that taken by him is capable of being held in good faith by at least one judge who has studied the subject with all the care he could give to it.
This should be accompanied by a repeal of the statutes referred to, and particularly the statute of William III., which Lord Coleridge describes as “ferocious;” and it might be well to add that no prosecution for blasphemy or blasphemous libel should be instituted except by the Attorney or Solicitor- General. This would effectually prevent the abuses to which the law as it stands is open.
Fortnightly Review, January-June 1884.