I am far from being fanatically attached to the common phrases about liberty. I think that the popular theories upon the subject are much too widely stated by their most popular advocates. I do not join in the indignation which is sometimes shown against those who try to deter people from the expression of opinions adverse to Christianity, by denouncing such opinions as dangerous and immoral, and by imposing social penalties on their advocates. I do not see how a sincere believer in Christianity can act otherwise; and I think a sincere disbeliever should either have the discretion to be silent, or the courage to take the inevitable consequence of the expression of opinions at variance with the existing state of things. Moreover, I do not deny that there may be cases in which the maintenance of a particular opinion may be so mischievous to society, or may be so closely connected with breaches of social order, as to call for its suppression by law. Circumstances may be imagined, and have perhaps existed, in which it would be as foolish to allow people to teach that all property is robbery, or to permit them to maintain the Pope's right to depose kings, as to allow people to smoke a pipe in a powder magazine. In short, I have no general doctrine to lay down about persecution, except the obvious one that, for well known reasons, there is a strong presumption against it, which, whenever it is practised, or proposed to be practised, must be overcome by strong special reasons.
Looking at the present question from this point of view, I propose to consider the existing law of England as to the expression of disbelief in natural and revealed religion, and to submit a proposal for its amendment.
The laws which affect this matter in England are reducible to the three following heads:–1. The King's ecclesiastical law as to heresy; 2. The common law as to blasphemy and blasphemous libels; 3. Certain statutes bearing on the same subject, the most important of which is 9 & 10 Will. III. c. 35.
In order to understand these different branches of the law, and their relation to each other, fully, it is necessary to go back to the origin of that legislation against heresy which has played so great a part in the world, and to point out shortly the principal epochs in its history in other countries, as well as in our own. The first legislation against heretics was that of Constantine, who, after the Council of Nice, prohibited the assemblies of the Montanists, and probably the Manichees, and some other heretical sects, and confiscated their property. Many other laws of the same kind were enacted by his successors. They were peculiarlysevere upon the Manichees, who, in more ages of the world than one, would appear to have had a singular power of exciting bitter animosity. The following extracts from Justinian's code are curious in themselves, and set them in a clear light:—
“Manichaeos seu Manichaeas seu Donatistas meritissimä severitate persequimur. Huicitaque hominum generi nihil ex moribus, nihil ex legibus commune sit cum caeteris. Ac primum quidem volumus esse publicum crimen quia quod in religionem divinam committitur in omnium fertur injuriam, quos bonorum etiam omnium publicatione consequimur. Ipsos quoque volumus amoveri ab omni liberalitate et successione quolibet titulo veniente. Praeterea non donandi, non emendi, non vendendi, non postremo contrahendi eniguam convicto relinquimus facultatem. In mortem quoque inquisitio majetatis extendatur. Nam iis in criminibus licet memoriam accusare defuncti non immerito et hic debet subire tale judicium. Ergo et supremaillius scripturo irritabit sive testamento, sive codicilio, sive epistola, sive quolibet alio genere reliquerit voluntatem qui Manichaeus fuisse convincitur.”—(Cod. Lib. 1. Tit. v. iv. v., A.D. 407.)An edict of 428 went still further :—
“Ariani” (and twenty-eight other sects named) et qui ad imam usque scelerum nequitiam pervenerint Manichaei nusquam in Romanorum locum conveniendi morandique habeant facultatem. Manichæus autem de civitatibus pellendus et ultimo supplicio tradendus quonian his nihil relinquendum loci est in quo ipsis etiam elementis fiat injuria.”At the fall of the Empire religious controversy shared the fate of other forms of intellectual activity. A long period succeeded the irruptions of the barbarians, in which the crime itself could hardly be said to exist, and in which, therefore, there was no occasion to punish it.
When the speculations of the Arabian philosophers began to influence European theology, heresy revived, and the first great result produced by its revival was the extermination of the Albigenses, the establishment of the Inquisition for the detection and suppression of heresy, and the Imperial legislation of Frederic II. for the same object. [Milman, Hist. Lat. Christ. ii. 238.] Though an Englishman was the commander of the Albigensian crusade, England remained free both from religious war and from the legal machinery contrived for its suppression, In our early history there are a very few faint indications of some sort of proceedings against heretics. Bracton, for instance, mentions a deacon who “apostatavit pro quádam Judaea,” and was burnt in consequence by the sentence of a council at Oxford. Britton has some expressions bearing on the same subject. Mention is made in Hallam's Middle Ages, and elsewhere, of severities inflicted on small bodies of flagellants and other persons, who probably adopted some of the wild heresies common in the 13th century; but these cases are very vague and throw little light on the law.
The case of the apostate who was burnt stands alone, and the other cases indicate rather an irregular exercise of authority, and the effects of popular indignation, than any settled system of persecution. No such system, indeed, existed in this country till the latter end of the 14th century, unless, indeed, the ordinary proceedings of the Ecclesiastical Courts are to be regarded in that light.
The part which these Courts played in the history of the country has been but little understood. In order to appreciate it we must recollect that, till the days of the Lollards, unanimity in religious belief in England was complete. The Jews were the only recognized dissenters, and they were expelled from England in the reign of Edward I. and towards the end of the 13th century. Their return, as is well known, was authorised by Cromwell more than 350 years afterwards. The clergy, moreover, were in possession of almost all the knowledge, an enormous proportion of the property, and the largest share of the political power in the country. Thus the fact that the Spiritual Courts, or Courts Christian as they were called, could not, or rather did not, fine, imprison, or put people to death, in no degree diminished their influence. Spiritual censures in those days required little support from the secular arm. An excommunicated person was like a Hindoo put out of caste. His life became a burden to him, and his punishment was one from which he was glad to escape by submitting to any penance which the clergy chose to inflict. When the most powerful King in Europe, and one of the most vigorous monarchs who ever held rule in England, submitted to be publicly flogged in Canterbury Cathedral, in order to avoid ecclesiastical censures, it is plain enough that the clergy stood in no need of the prison and the gallows to enforce their decrees. Moreover, the clergy, regular and secular, were, as a rule, the only persons who could even read, and over them the power of the Ecclesiastical Courts was complete. From the earliest period, however, the Ecclesiastical Courts were assisted in one important respect by the temporal courts. If an excommunicated person was contumacious, the bishop sent an instrument called a significavit, or notification, to the Chancery, which was the King's officina justitia. Thereupon a writ was issued, called the writ de excommunicato capiendo, upon which the person excommunicated was arrested and imprisoned, till he was reconciled to the Church by penance and absolution. This, however, must in many cases have been unnecessary.
Heresy, apostasy, atheism, blasphemy—every form of dissent from orthodoxy—were always ecclesiastical crimes; and, when it is said that persecution in England began towards the end of the 14th century, all that is meant is that it was not till then that the clergy began to require the support of the civil power, not only in enforcing submission to censures, but in the infliction of superadded temporal punishments. In the course of this article I shall have occasion to return several times to the history of these Courts, and to point out some curious and little-known features in their position.
The first great instance of the calling in of the secular arm in England was in the year 1381. Wycliffe was then dead, but the Lollards had spread their opinions all over England, and the effect was to weaken the moral influence of the clergy to such an extent as to cause them to call for the intervention of the royal power. Accordingly, an Act was passed, 5 Richard II., c. 5 (A.D. 1381). The preamble recites that divers evil persons go from county to county, and town to town, without licence, preaching daily, “not only in churches and churchyards, but also in parkers, fairs, and other open places,” sermons containing heresies. These preachers will not obey the summons of the ordinaries, “nor care for their monitions, nor censures of the Holy Church, but expressly despise them.” It is in consequence ordained that the sheriffs and other ministers of the King, upon a certificate from the bishops, are to arrest all such preachers, “and hold them in arrest and strong prison till they will justify them according to the law and reason of holy Church.” This statute was only a moderate extension of the common law proceeding de excommunicato capiendo. It appears not to have been effective, for in the year 1400 a second statute was passed (2 Hen. IV., c. 15) of a very different character. This statute recites that—
“False and perverse people of a certain new sect, of the faith of the sacraments of the Church, and the authority of the same damnably thinking. - - ... perversely and maliciously preach and teach . . . . divers new doctrines and wicked, heretical, and erroneous opinions . . . . . and the ways of the Church, with the censures of the Church, do utterly contemn and despise.”It then enacted that no one shall preach without license, or “anything preach, hold, teach, or instruct, openly or privily, or make or write any book contrary to the Catholic faith or determination of the Holy Church.” The Diocesan might try any person suspected according to the Canon Law (what this implied will be seen immediately), and if he refuse to abjure, or relapse, and was “sententially convict so that according to the Canons he ought to be left to the secular court,” he was to be delivered to the sheriff or mayor, who were to attend the Court if required, and who “the same persons after such sentence promulgate shall receive and there before the people in an high place do to be burnt, that such punishment may strike fear in the minds of other.” This was the famous statute de heretico comburendo. It was afterwards strengthened to some extent by an Act, 2 Hen. W. c. 7 (A.D. 1414), the most important provision in which was that justices of the peace might inquire into heresies and commit heretics. Under these provisions various Lollards were burnt in the course of the 15th century, particularly William Sawtre in 1400, William Thorpe in 1409, and Sir John Oldcastle (Lord Cobham) in 1413. [See their cases in 1 State Trials, 163—268. Oldcastle, like Friar Forest, was both hanged and burnt as a traitor and heretic.]
Perhaps the most remarkable point in this famous statute is that it contains no definition whatever of heresy. The matter is left entirely at large, and the ecclesiastical judges could define it as they pleased. They were to a certain slight extent checked in the abuse of this power by the Civil Courts, but the lengths to which they were prepared to go, and the necessity for some check upon them, is shown by two remarkable cases reported by Lord Coke. [Coke's 3rd Institute, p. 42.] John Keyser was excommunicated by the Archbishop of Canterbury for a suit connected with the administration of the goods of a person deceased—a purely temporal matter, though no doubt within the jurisdiction of the Archbishop's Court. Keyser remained excommuicated for eight months, and—
“openly affirmed that the said sentence was not to be feared, neither did he fear it; and albeit the Archbishop or his commissary have excommunicated me, yet before God I am not excommunicated; and he said that he spake nothing but the truth, and so it appeared, for that he the last harvest standing so excommunicate had as great plenty of wheat and other grain as any of his neighbours, saying to them in scorn that a man excommunicated should not have such plenty of wheat.”For this he was committed to Maidstone Gaol, because, said the Archbishop, “in respect of publishing the said words: Dictum Johannem non immerito habemus de harrest suspectum.” The Court of King's Bench released him on Habeas Corpus, considering “upon mature deliberation and upon conference with divines,” that for such words Keyser was not to be suspected of heresy. Afterwards William Warner was imprisoned by the Bishop of London because he “held opinion and published quod non temebatur solvere aliquas decimas curatori sire ecclesia parochali ubi inhabitabat.” Warner sued the Bishop for false imprisonment, and recovered judgment against him—I hope with exemplary damages, but that does not appear.
The law stood thus till the Reformation, when the legislation of Henry VIII. put the whole subject of the punishment of heresy upon a new basis. It seems to me that from want of attention to the legal view of the subject the effect of his legislation has often been misunderstood. His first Act on the subject— 25 Hen. VIII., c. 14 (A.D. 1533), which repealed 2 Hen. IV. c. 15, and confirmed 5 Richard II., c. 5, and 2 Hen. W., c. 7.-did not abolish the practice of burning for heresy; but, instead of leaving the initiative to the ecclesiastical judge, it provided that lay persons should be empanelled to present heretics to the ordinary on oath. Upon such presentments, which were to be founded upon the oaths of two witnesses, the ordinary might proceed to conviction and burning. But the Act recited that—
“It is not reasonable that any ordinary, by any suspicion conceived of his own fantasie, without due accusation or presentment, should put any subject of this realm in the infamy and slander of heresy to the peril of life, loss of name and goods.”The Act did not define heresy positively, but declared negatively (with great verbosity) that—
“No manner speaking, doing communication, or holding against the said Bishop of Rome, or his pretended power or authority, &c., &c., or against any laws called spiritual laws made by authority of the See of Rome by the policy of men, &c., &c., shall be deemed, reputed, accepted, or taken to be heresy.”The effect of this statute was that hardly anything could be affirmed about heresy, except that it was not heresy to deny the doctrines of the Roman Catholics.
This explains, in some measure, the famous Act of the six articles, 31 Hen. VIII. c. 14 (A.D. 1538). This Act lays down six opinions upon transubstantiation, and other subjects. Those who erred about transubstantiation were to be burnt as heretics, and those who erred on the other subjects to be hanged as felons. I may observe in passing that when this statute was passed Henry VIII. stood between the clergy on the one side, who, by the law as he found it, could define heresy at pleasure, and burn everyone who fell within their definition, and the body of the people, who were divided between furious supporters and at least as furious opponents of the clergy. A policy of absolute indifference, like that which we follow in India between Mahommedans and Hindoos, was impossible on every ground, but especially because there was no power to enforce it. If the heresy was to be a crime it had to be defined, and if it was to be defined and punished by law it was far better that the King should make the law, and inflict the punishment, than that it should be left to the clergy or to popular fanaticism to discharge that office. Henry VIII.'s definition of heresy was absurd enough, and everyone was interested in pointing out its absurdity; but any other definition would have been equally absurd, and it was difficult to do altogether without one. Some alterations in procedure were made by this Act, which it is not necessary to specify.
The whole of the ecclesiastical legislation of Richard II., Henry IV., Henry V., and Henry VIII., was repealed by 1 Edward VI., c. 12. Mary revived the Acts of Richard II., Henry IV., and Henry W.; and it was under their powers that the great persecution inseparably associated with her name took place. The only remark which they call for here is that Mary tried to carry into force and give full effect to the ancient ecclesiastical laws of the country, reinforced by the statutes made against the Lollards, as it was necessary that they should be if they were not to fall into desuetude. The horror which the attempt produced, the exaggerated odium which has ever since attached to “bloody Mary,” the fierceness of the flame, never to be put out, which her faggots lighted in England, are no doubt exaggerated and misdirected, in so far as they have for their object a pious, narrow-minded woman who meant well; but they are neither exaggerated nor misplaced, in so far as they have for their object the claims of the clergy to be the stewards and dispensers of divine, immutable truth. If they were what they said they were, they were right to persecute. When regarded on their principles it became quite clear that they were not what they said they were.
Elizabeth's first Act on coming to the throne was to reverse absolutely the whole policy of her sister. By the memorable Act “to Restore to the Crown the Ancient Jurisdiction over the Estate Ecclesiastical and Spiritual,” 1 Eliz. c. 1. (A.D. 1558), the three Acts of Richard II., Henry IV., and Henry V., were repealed (s.15), and the Queen was invested with power to institute what was afterwards known as the High Commission Court, “to visit, reform, redress, order, correct, and amend all such heresies, schisms, abuses, offences, contempts, and enormities whatsoever, which by any manner of spiritual or ecclesiastical power, authority, or jurisdiction,” could be dealt with in any way. Almost the only limitation put upon the Commissioners was that they were not to
“determine or adjudge any matter or cause to be heresy, but only such, as have heretofore been determined, ordered, or adjudged to be heresy by the authority of the Canonical Scriptures, or by the first four General" Councils, or any of them, or by any other General Council, wherein the same was declared heresy by the express and plain words of the said Canonical Scriptures.”The effect of this Act was to establish a court, arbitrary and, high-handed no doubt, but infinitely less formidable than the bishops and archbishops' Courts in the 15th century, and restricted, by the negative definition of heresy quoted above, within much narrower limits as to the opinions which they might condemn. Moreover, it must have been understood in Elizabeth's time that the repeal of the statutes against the Lollards had put an end to the punishment of death for heresy. No one in this reign suffered merely for his opinions. With all her weaknesses and faults, the Queen had very little bigotry in her nature, and persecuted no doctrines except those which either attacked her person or her power, or disturbed, or were supposed to be likely to disturb, the public peace. If her reign could not be described as tolerant, her intolerance was at least worldly and practical. It aimed at the temporal prosperity of the nation, not at securing their orthodoxy.
James I., with many fine qualities, for which he has received no credit, had a taste for theology, and a delight in playing the part of a local Pope of an improved and modernized pattern. He piqued himself on his orthodoxy, and in particular took occasion to play a leading part in condemning and burning an Arian, or, as we should now call him, a Unitarian, whose opinions gave great scandal at the time. This was a man named Legatt, whose “damnable tenets,” twelve in number, caused him to be tried by the Bishop of London in his Consistory Court. [“Bartholomew Legatt, native county Essex, person comely, complexion black. age about forty years, of a bold spirit, confident carriage, fluent tongue, excellently skilled in the Scriptures. His conversation, for aught I can learn to the contrary, was very unblamable.”—(Fuller, printed in 2 S. T. 727.)] He was duly convicted, and declared “an obdurate, contumacious, and incorrigible heretic.” This conviction the Bishop certified into the Chancery, and thereupon King James, who had done his best to convict Legatt by arguments of his own, and had failed, issued a writ de heretico comburendo, although the statute of 2 Henry IV. had been repealed fifty-four years before. Some of the judges (Lord Coke dissenting, [See 12 Coke, Rep. 93 & 56.] as I think most persons would now admit, on conclusive grounds) advised the King that the writ could issue at common law, and apart from the statute. Legatt accordingly, “refusing all mercy, was burnt to ashes.” The same course was taken about the same time with one Wightman, at Lichfield. It would be difficult to find any executions in the whole history of England more illegal, and in every way more shameful than these. The Marian persecutions were legal, and were in the nature of a serious act of war. Elizabeth's severities were inflicted for serious political reasons. Legatt and Wightman were burnt illegally, without the shadow of a political reason for it, solely in order to gratify theological bitterness and royal vanity. They were the last victims of the writ de heretico comburendo. The writ itself, and all proceedings upon and connected with it, was finally abolished by the 29th Charles II., c. 9 (A.D. 1678), from which time capital punishment for heresy, whether by statute or common law, has been unknown in England. [Not in Scotland. See Aikenhead's case (A.D. 1696), 13 St. Tri. 917, &c. The case is also referred to in Lord Macaulay's History of England. The statutes under which Aikenhead suffered (he was hanged) were repealed by the statute referred to below. 55 Geo. III. c. 160 (A.D. 1813).] The Act which abolished this writ contained the following remarkable clause:—
“Nothing in this act shall extend or be construed to take away or abridge the jurisdiction of Protestant archbishops or bishops, or any other judges of any Ecclesiastical Courts, in cases of atheism, blasphemy, heresy, or schism, and other damnable doctrines and opinions, but that they may proceed to punish the crime according to His Majesty's ecclesiastical laws by excommunication, deprivation, degradation, and other ecclesiastical censures not extending to death, in such sort and no other as they might have done before the making of this Act.”The unwritten ecclesiastical law as to heresy remains to this day in the state in which it was left by this statute. In order to appreciate its practical importance, it is necessary to go back to a state of things which is now forgotten, but which exercised a much more powerful influence on English history than many events which are much better remembered. I refer to the ordinary jurisdiction of the Ecclesiastical Court as it stood before the year 1640.
Students of law reports frequently come across statements that this or that is a matter of “ecclesiastical concern,” or a matter “merely spiritual.” Such, for instance, till the year 1855, would have been the proper mode of describing all defamation by words only which did not impute crime, &c., to the person defamed. The same is the case in the present day with all sexual immorality (with one or two exceptions) such as fornication and incest. Such expressions are in the present day practically equivalent to saying that the acts in question, however immoral, are not in the legal sense criminal. They are, however, vestiges of a state of things which can still be described, and which in its time was of the utmost importance.
From the very commencement of English history, down to the year 1640, England was covered with Ecclesiastical Courts, as indeed it still is. No one in these days is made aware of their existence, as since the establishment of the Probate Courts they have hardly anything to do of the least importance. Anciently, they were like modern Police Courts, presided over by college tutors. If we imagine all England to be one vast college, with tutors and deputy-tutors in the shape of the judges of Ecclesiastical Courts, dotted all over it at convenient intervals, charged with the duty of “convening” every one, no matter what might be his religious opinions or position in life, who used improper language, got drunk, was guilty of immorality in any of its forms, or showed the slightest disrespect in act or word to any ecclesiastical institution, or who did not go to church, or take the communion at proper intervals, we shall have a very complete idea of the old Ecclesiastical Courts. We must, however, understand their procedure in order to appreciate their full character. They proceeded in three ways—by accusation, denunciation, or inquisition ex officio. “Accusation” was where a specified accuser “promoted the office of the judge”—i.e., instituted proceedings in his own name. “Denunciation” was where the judge proceeded on information given him by a person who did not (as the accuser did) make himself responsible for what he said. This mode of accusation, since the canons of 1603, can now be practised only by ministers' churchwardens under the name of Presentment, and has therefore become obsolete. “Inquisition ex officio’’ was where the judge, on his own knowledge or suspicion, convened or cited the party before him. On doing so, he had the right to administer to him an oath, called the ea officio oath, “to make true answer to such questions as should be demanded of him.” The accused was then questioned as to his guilt. If he refused to answer, he was in contempt. If he swore falsely, he committed perjury. If he admitted any guilt whatever, penance was enjoined, and in case of obedience he was absolved. If he was contumacious he was excommunicated, and if the excommunication was signified by the bishop to the Chancery, a writ de excommunicato capiendo might issue, on which he would be imprisoned till he submitted.
Thus, with milder punishments and smaller powers, the Ecclesiastical Courts were an Inquisition. The system lasted in full vigour down to the year 1640, with an interruption, as it would seem, of about nine years (1546 to 1554), in the time of Edward VI. I believe it to have been one of the main causes of the passionate hatred with which the bishops and the clergy were regarded by the people at large in Charles the First's time. The Courts of High Commission and Star Chamber were, in fact, only specimens on the largest scale of what went on in every part of England. Laud's famous determination that “the discipline of the Church should be seen and felt, as well as talked of.” was indeed no more than a determination to execute strictly, and on high and low alike, a law which must have been odious beyond conception. It is difficult now to realize, by an act of the imagination, a state of things in which the archdeacon or his official had a right to send for any one in his jurisdiction, and to examine him upon oath as to his chastity, his sobriety, or his religious opinions; but we have conclusive evidence that this was the daily business of the Ecclesiastical Courts. The preceding account is condensed from an extremely curious book, which attracted far less attention than it deserved, by the late Archdeacon Hale. [A Series of Precedents and Proceedings in Criminal Cases extending from the Year 1475 to 1640, Extracted from Act-books of Ecclesiastical Courts in the Diocese of London, Illustrative of the Discipline of the Church of England. To which is prefixed an Introductory Essay by William Hale, M.A., Archdeacon of London. Rivington, 1847.]
The introductory essay describes the Courts. The precedents are, in fact, a journal of their proceedings. Both the one and the other contains abundance of matter curious and interesting to the last degree. I will make a few extracts, which show the character of the system. Archdeacon Hale's collections range over 165 years. I will take an illustration or two from different parts of this period. A very large proportion of the offences consisted of acts of immorality. Thus:—“Johannes Godwin adulteravit cum eaclem Rosa Williamson et erat deprehensus cum eådem per aliam mulierem et habet uxorem satis venustam.” Rosa Williamson was the cause of six convictions, four of the parties being priests. [A.D. 1489]
A certain Cecilia, “moram trahens apud le Pewterpote,” was accused of improper conduct with one Beucham. She brought compurgators who swore that she was innocent. Beucham said he was married to her. She on the other hand declared, that two years before
“In mente suá erat determinata eum habere in virum suum, eteå intentione eum diligebat et non aliter, nec pro aliqua alià causā; sed dicit quod jam non ita bene eum diligit pro eo quod prodigaliter se habet in suis expensis, et in illicitis ludis expendit pecunias suas—viz.: at the dise et the cardis.”
Nicholas Calff and Ralph Hustin conspired to call priests by very indecent names:–“Etiam sic dicendo.—‘I wold ther never a prest in England.’” They were acquitted. Johannes Bowkyn, “Cobbelyr fovet opiniones hereticas tenendo candelam in manu suâ et dicendo—“As this candill doyth vaad, and gooeth out, lykwyse my soolle shall goo, and assend to hevyn,” which seems a very odd opinion. One Elenor Dulok, among other things, expressed a wish “utinizavit (I suppose from utinam) se fuissein inferno quamdiu Deus erit in coelo ut potuisset uneis infernalibus vindicare se de quédam Johanne Gybbes mortuo.” James Aunseter was admonished, under pain of excommunication, not to let his servants be rude to his wife (to whom he was unfaithful). Michael Mumford said to his parish clergyman, “Leve thy preaching, for it is nott worth a -----.” [P. 83. A.D. 1509. The blank is in the original, so that it will never be known what the defendant thought of the sermons.] Cases of bigamy are of frequent occurrence, and there are others (mostly involving immorality) which would now be prosecuted in the ordinary courts. Profane oaths, drunkenness, and Sabbath-breaking were continually prosecuted. One of the strangest cases of all is against a curate, who committed the double offence of absenting himself from a procession to go and see people hung, [P. 136. A.D. 1554. Tempore processionis presens fuit in publico spectaculo apud Tybourne dum quidam transgressorcs . . . mortem subierunt.”] and observing that “yt grieveth him to hear confessions, specially when any person uttereth—any particular matter—sounding to fylthyness.” The cases do not appear to have diminished in frequency as long as the system lasted. Between November, 1639, and November, 1640, there were 30 sittings in the Court of the Archdeacon of London, the number of causes being more than 2,500. They were of much the same character as in earlier times. Thus, on the 18th January, 1630, John Strutt, Joseph Bridge, Joanne Goodman, and Amy Thorpe got drunk at William Chaundlin's ale-house. Strutt went to sleep in the fields, and did not get to evening church at all. Joanne Goodman went to church, but “lay down at the end of the chancell, and there lay asleep till the latter end of the sermon.” Robert Lincoln countenanced his brother Charles in incontinence, and dissuaded him from marrying a woman whom the clergyman thought he ought to marry; moreover, he “scandalously abused the parson” in language which need not be reproduced, but which was not unnatural, considering what sort of a sister-in-law the clergyman wanted to inflict upon him. Practical joking was a crime in these Courts. Two women were prosecuted for going into a man's room “with intent to sew him up in a sheet.” One of the latest presentments of all shows how unspeakably unpopular such proceedings must have been. “John King was prosecuted November 7, 1639, for refusing to let the churchwardens into his house (an inn) on Sunday, when they came to search for company in time of Divine Service.”
Discipline of this sort is possible, and, as the experience of Scotland and other countries has shown, it is not necessarily unpopular when the power is in the hands of a body of elders and ministers who really represent the convictions of the people. In England, however, it is a wonder that people submitted to its exercise as long and as patiently as they did, when it was exercised by a body of men whose leaders ostentatiously claimed the very same sort of powers as those which had been denied to the Roman Catholic clergy, and the claim of which had led to their downfall, and that upon a title which rested on less plausible grounds.
The illustrations which I have given, will perhaps throw new light on the utterances of one of the last victims of the Star Chamber, who—
“Began to thunder it out against the bishops, and told them that they required three oaths of the King's subjects—namely, the oath of churchwardenship, and the oath of canonical obedience, and the oath of office, which are all against the law of the land, and by which they deceive and perjure thousands of the King's subjects in a year.”—(3 S. T., 1325.)The development given to the system by the Courts of High Commission and Star Chamber in Charles the First's time, was fatal to it, to him, and to his principal Ministers, as the most familiar passages in our history show. The exact legal results of the legislation of that time are less clearly understood than their general effect. These results were as follows:—The Act of 1640 (16 Charles I., c. 11), which abolished the Court of High Commission, and the oath ex officio also provided (s. 4), in very broad words, that no Ecclesiastical Court should inflict any “pain, penalty, fine, amercement, imprisonment, or other corporal punishment” on anybody, for anything whatever. This swept away the whole coercive authority of the Ecclesiastical Courts over laymen, and left to them only whatever influence their spiritual censures might give them, and I think it is to be wished that the matter had been left on that footing. It was, however, not so left. On the Restoration, an Act was passed (13 Charles II., c. 12, A.D. 1661), which restored their “ordinary power and authority” to the Ecclesiastical Courts, and enabled them to use all “censures and coercions” which they might have used before 1640. The High Commission Court, and the ex officio oath, only were not to be revived. I have already pointed out the care with which this jurisdiction was reserved to the Ecclesiastical Courts when the writ de heretico comburendo was abolished by statute.
Summing up the whole of this long story, the result is that the Ecclesiastical Courts have to this day power to proceed criminally against any person whatever, clerical or lay, Protestant, Catholic, infidel, Jew, or anyone else—
“In cases of atheism, blasphemy, heresy, or schism, and other damnable doctrines and opinions, and they may proceed to punish the crime according to His Majesty's ecclesiastical laws, by excommunication, deprivation, degradation, and other ecclesiastical censures not extending to death.”Mere nonconformity, (going to chapel instead of church) is no doubt protected by the Toleration Act (1 Will. and Mary, c. 18), and the subsequent statutes, which extend its benefits to persons who were at first excluded from them; but the Toleration Act does not do away with the crime of heresy. Its object is much narrower. The preamble is in these words:–
“Forasmuch as some ease to scrupulous consciences in the exercise of religion may be an effectual means to unite their Majesty's Protestant subjects in interest and affection.”And it then goes on to enact that everyone, with certain exceptions (removed by subsequent legislation), who will take certain oaths, is to be freed from the penalties of certain statutes enumerated in the second section. I cannot find a word or an expression in it which tends to narrow or in any way affect the unwritten ecclesiastical law about heresy, or which would prevent the Courts from taking cognizance of the “damnable doctrines and opinions” specified in the 29 Charles II., s. 2. [A faint doubt on this subject is suggested by Sir Robert Phillimore, Eccles. Law, 108, 4] The inference appears to be that the publication of any opinions which could be described as heretical, atheistical, or blasphemous, might be prosecuted in an Ecclesiastical Court and punished by excommunication. To take an instance, which can offend no one, as the author is dead : I think that Mr. Mill might have been prosecuted and excommunicated for his three Essays on Religion. It is natural to ask what would be the consequence of excommunication? Why should anyone fear it who is not a Christian The answer is, because the Court can order the party to pay costs, and can enjoin upon him the performance of penance; or, as an alternative, imprisonment not exceeding six months, until the penance is performed, and costs paid, and their judgment can be executed by a writ de ex communicato capiendo. This can be done under 53 George III., c. 127, ss. 2 & 3. The object of this Act was to modernize the procedure of the Ecclesiastical Courts. It abolished excommunication as a mode of enforcing civil process, and substituted a writ de contumace capiendo for the old writ de excommunicato capiendo; but it carefully preserved the power of the Court to excommunicate in definitive sentences, and whilst it abolished all the other civil disabilities which formerly attached to excommunication (e. g., a person excommunicated could not sue) [Comyn's Digest, Excommengement.] it substituted the power of inflicting six months' imprisonment as a mode of compelling compliance with the order of the Court to do penance. There are, no doubt, cases—as for instance prosecutions against clergymen—where this might be proper, and these cases were more likely to occur in 1813 than at present. The Ecclesiastical Courts then, and long afterwards, took cognizance of defamation, and now and then of gross immorality, such as incest. Their jurisdiction as to defamation was taken away by 18 & 19 Vict., c. 41 (A.D. 1855). [In the year 1849 or 1850, when I was at Cambridge, a man was ordered to do penance in a white sheet, in Fen Ditton Church, for some scandal which he had uttered about (I think) the clergyman. He blacked his face, got drunk, and went into church with a crowd of other drunken people, who pelted the clergyman back to his house with hassocks and Prayer-books amongst other things.”] The power might be meant to apply to such cases; but be this as it may, the incidental effect of this statute appears to me to be that Mr. Mill might have been called upon to retract publicly the opinions contained in his book, under pain of six months' imprisonment. The living authors who might be proceeded against in the same way, are numerous and well-known, but it would be invidious to name them.
A person accused of such an offence before an Ecclesiastical Court would be entitled to one defence, which it would not be be very satisfactory to urge. It is a principle of law that the jurisdiction of the Ecclesiastical Courts does not extend to anything which is a temporal offence, and they might be restrained by prohibition from entertaining any charge which amounted to a charge of a temporal offence. Now, there can be no doubt that a large proportion of the offences of which the Ecclesiastical Court could take cognizance, as heresy, blasphemy, or atheism, would constitute crimes at common law. If, therefore, a person cited before an Ecclesiastical Court could convince one of the Courts at Westminster that he was accused of an offence for which he could be tried by a jury at the Old Bailey, the Ecclesiastical Court would be prohibited from proceeding in the case. However effective practically this right to pass from the frying-pan into the fire is, it is not a natural nor quite a satisfactory way of being protected against persecution.
I will now proceed to consider the provisions of the common and statute law as to the expression of religious opinions. The first statute now in force which bears upon the subject, and which treats the expression of a religious opinion as a temporal crime, is (I am disposed to think) older than the common law on the subject. It is the 1st Edward VI., c. 1, (A.D. 1547), and is entitled “An Act against such as shall unreverently speak against the Sacrament of the Body and Blood of Christ, commonly called the Sacrament of the Altar, and for the receiving thereof in both kinds.” The last part of it, as to the receiving of the Sacrament in both kinds, is practically superseded by the Prayer-book and the 30th Article of Religion, which forms part of the Act of Uniformity. The first part, after setting forth at great length the King's anxiety for religious concord, “the great and highe mysteryes” of the Sacrament, and much else, enacts that whoever “shall deprave, despise, or contemn the said most blessed Sacrament in contempt thereof, by any contemptuous words, or by any words of depraving, despising, or reviling,” or “shall advisedly in any other wise contemn, despise, or revile the said most blessed Sacrament contrary to the effect and declaration aforesaid” (i.e., the theological statements in the preamble) “shall suffer imprisonment of his or their bodies, and make fine and ransom at the King's will and pleasure.”
The offence may be tried at the Quarter Sessions, and the justices are in such cases to issue a writ to the bishop of the Diocese, requiring him to attend personally, or by his chancellor, Or some other deputy, to advise him on the trial of the offender. Offenders are to be prosecuted within three months.
It is a curious proof of the extreme scrupulousness of the Statute Law Revision Commissioners, that they did not venture to include this amongst the obsolete statutes, which it is their duty to repeal. It is duly printed as a statute, still in force in the revised edition of the Statutes. After much experience of Courts of Quarter Session, I think the justices would be as much surprised at having to try such a case, as the bishop at being cited to come and advise them.
The next point to be noticed is the common law upon the subject of blasphemy and blasphemous libel. The common opinion as to the common law is that it is a system of immemorial antiquity, and no doubt certain parts of it are as old as English history. Of course, however, the great bulk of it as we now know it, consists of judicial decisions. These rest for the most part on principles which were always accepted, but have been gradually extended as they had to be applied to new states of fact; but there are some cases in which the judges have taken upon themselves distinctly and unequivocally legislative power—in which they have made law under pretence of declaring it. I know of no instance in which this has been done so boldly as in the case of the law as to blasphemy and blasphemous libel.
As I have already shown, blasphemy was regarded down to the year 1640 as a matter of ecclesiastical concern. There are numerous instances of prosecutions for it in Archdeacon Hale's precedents, and the Act of Charles II., abolishing the writ de heretico comburendo, puts the power of the Ecclesiastical Courts in this matter beyond a doubt. In days when Arians were liable to be burnt, a person who denied the authority of the Scriptures, the truth of the gospel history, or the being of God, would have been treated as a heretic of the very worst kind, and dealt with accordingly. [The Reformatio Legum Ecclesiasticarum, was published in 1571. It was written in the reign of Edward VI., and was intended as an ecclesiastical code to supersede the hopeless mass of canons, &c., which are still called the King's Ecelesiastical Laws. It met the fate of most attempts at codification in this country, but it is interesting as showing what was then understood to be the law. Its second head relates to heresy, the origin of which is ascribed to Satan. The first place amongst heretics is thus alloted: “In quo genere teterrimi illi sunt qui sacras Scripturas ad infirmorum tantum hominum debilitatem ablegant et detrudunt.” Claiming for themselves “peculiaren quendam spiritum a quo sibi omnia suppeditari."] Some of the German sects had made considerable advances towards such opinions, but they did not become common in England till near the end of the 17th century. The first instance of a prosecution for blasphemy as a temporal offence with which I am acquainted, is the case of James Naylor, the Quaker, who acted rather the part of a madman than a blasphemer, in Bristol, in 1656. It is remarkable that he was tried and punished, not by any ordinary tribunal, though the Courts of the Protector were distinguished for their ability, and were not likely to be indulgent to blasphemy, but by a committee of the House of Commons, by whose orders he was cruelly whipped, burnt in the tongue, and imprisoned for three years, when he recanted, and admitted in effect that he had been mad. The case goes to show that blasphemy was not regarded at that time as an offence known to the ordinary courts of justice. [The proceedings against Naylor are reported in 5 S. T., 801. R. v. Atwool (A.D. 1616), Cro. Jac. 421, is referred to by Starkie as an earlier case; but the report is miserably poor, it is ambiguous, and the marginal note seems to contradict the text. Moreover, it does not state the conclusion at which the Court arrived, and the words charged seem rather seditious than blasphemous.]
Another occasion on which the question would appear to have been mooted, had reference to the first great English writer, so far as I know, who incurred the suspicion of atheism—Hobbes. It is stated in Somers's Tracts that—
“In 1666 the House of Commons entertained a Bill to punish atheism and profaneness, the penalties of which were distinctly understood to be levelled against Hobbes, whose book of the Leviathan and de cive had excited great and just reprehension.”—(Vol. vii., 373.)In reference to this, Hobbes published a pamphlet (printed in Somers's Tracts, and in the 4th volume of Sir W. Molesworth's edition of his English works) called “An Historical Narrative Concerning Heresy and the Punishment Thereof.” which is in every respect admirably written. Whether on account of his arguments, or upon other grounds, the Bill was laid aside.
The creation by the temporal courts of the crime of blasphemy was of somewhat later date, and was part of a policy which the Court of King's Bench deliberately followed in the reign of Charles II. Its nature is indicated in the case of Sir Charles Sedley in 1663. When drunk, Sedley conducted himself in a most disgusting manner in Covent Garden. For one thing, “he stripped himself naked, and with eloquence preached blasphemy to the people.” The judges upon this told him—
“Yet notwithstanding there was not then any Star Chamber, yet they would have him know that the Court of King's Bench was the custos morum of all the king's subjects, and that it was then high time to punish such profane actions committed against all modesty, which were as frequent as if not only Christianity but morality also had been neglected.”—(17 S. T., 155, and see 1 Keble, 620.)It is impossible not to approve of the action of the Court in this case, but in order to justify its conduct, it laid down a principle capable of the most formidable extension. Nor did the judges fail to extend it as opportunity occurred. Some years afterwards [In 1676. See 3 Keble, 607.] a man named Taylor was convicted upon an information for applying vile language to Jesus Christ and for saying (inter alia) that religion was a cheat.
Lord Hale said that such words were not only an offence against God but a crime against the law; that Christianity is parcel of the laws of England, and therefore to reproach the Christian religion is to speak in subversion of the law. This doctrine, which has acquired great celebrity, has been repeated and acted upon in many later cases. The expression has hardly any specific meaning, and may at pleasure be either so much contracted as to mean little or nothing, or so much expanded as to give the ordinary courts of common law a censorship over all publications on religious subjects. It must also be observed that even if Christianity (however we understand the word) is part of the law of the land, it does not follow that the denial of its truth should be forcibly prevented, for the law of the land may, and notoriously does, require alteration in many particulars, and is in many instances founded on errors of different kinds. To point out those particulars and the proper way of reforming them is not a crime, but a laudable action.
It is difficult to give an accurate notion of the manner in which Lord Hale's principle has been applied, without going through the different cases which have been decided upon the subject. [A full abstract of those which had been decided up to 1838 is to be seen in 2 Starkie on Slander, p. 129-154. The decisions since that time have been very few.] Such a review would be out of place here, and could hardly fail to be wearisome. Moreover, I doubt whether any branch of the slaw is in such a fluid condition. The earlier cases are miserably reported. For instance, the report of “R. v. Taylor,” in Keble, in which Lord Hale is said to have decided that Christianity was “parcel of the law,” consists of a few lines, which read like, and obviously are, a hasty note of a judgment of some length. The later cases are all, with one or two exceptions, cases tried by single judges, whose views of the law have to be gathered from their directions to the jury. So far as I am aware, there are only two cases in which the matter has been discussed in banco, and the principles laid down on those occasions were exceedingly narrow, and were strictly confined to the special circumstances of the cases under consideration.
The fair result of the different cases may, I think, be expressed somewhat as follows:—
1. The application of abusive language to God, Jesus Christ, the Bible, Christianity in general, and perhaps to some other persons and things which are the objects of reverence amongst Christians, is a crime.
2. Language which would be criminal under (1), does not cease to be criminal merely because it is mixed up with and forms part of a serious argument against the truth of Christianity, or any Christian doctrine.
3. The question whether the simple denial of the truth of the doctrines of natural or revealed religion without the use of abusive or indecent language is or is not criminal at common law may possibly admit of some doubt. There is abundance of authority in favour of the affirmative, but it might perhaps be argued with fairness that much of the language used by the various judges who have tried cases of this character, was not necessary to the decision of the matters before them, and that the principles stated above, and numbered (1) and (2), are really wide enough to cover most, though not all of the convictions which have taken place from time to time for offences of this nature. It is not at all unlikely that in consideration of the strong feeling of the day in favour of practically unlimited freedom of discussion, judges might feel justified in leaving to the jury the question whether the object of the publication was serious and bond-side discussion, or mere verging upon, and not unlikely to produce, a breach of the peace. I think that the general current of legal authority is as much opposed to this course as the general current of public opinion would be in its favour, but the case is eminently one of those in which the judges practically legislate ex post facto, by declaring the law upon the particular cases in which its application is required. It must, however, be observed that in whatever degree the common law recedes the unwritten ecclesiastical law would advance. To deny the truth of the Christian history, or the fundamental propositions of natural religion in language perfectly unobjectionable, and in the most complete good faith, is, beyond all question, heresy, whether it is or is not blasphemy or blasphemous libel at common law. If it is a crime at common law, the Ecclesiastical Court would be restrained from inquiring into it. If it is not, I do not see what is to prevent anyone who publishes such opinions, whatever his religion, his race, or his education may be, from being cited before an Ecclesiastical Court, and there enjoined to do penance and retract, or suffer six months' imprisonment.
This view of the existing law must be completed by reference to a statute which contains very much the most precise and definite provisions on the subject to be found in the whole range of the law. This is the Act 9 & 10 William III., c. 35, which is as follows:—
“Whereas, many persons have of late openly avowed and published many blasphemous and impious opinions contrary to the doctrines and principles of the Christian religion greatly tending to the dishonour of Almighty God, and may (sic) prove destructive to the peace and welfare of the kingdom. Wherefore, for the more effectual suppressing of the said detestable crimes, be it enacted, that if any person or persons having been educated in, or at any time having made profession of the Christian religion within this realm, shall by writing, printing, teaching, or advised speaking deny any one of the persons of the Holy Trinity to be God, or shall assert or maintain there are more Gods than one, or shall deny the Christian religion to be true; or the Holy Scriptures of the Old and New Testament to be of divine authority,” he shall, upon conviction, for the first offence “be adjudged incapable, and disabled in law . . . . to have or enjoy any office or offices, employment or employments, ecclesiastical, civil, or military, or any part in them, or any profit or advantage appertaining to them, or any of them.”
And he is also to forfeit any office which he holds at the time of his conviction. In case of a second conviction the person convicted—
“shall from thenceforth be disabled to sue, prosecute, plead, or use any action or information in any court of law or equity, or to be guardian of any child, or executor or administrator of any person, or capable of any legacy or deed of gift, or to bear any office, civil or military, or benefice ecclesiastical, for ever within this realm; and shall also suffer imprisonment for the space of three years, without bail or mainprize from the time of such conviction.”By the 55 George III. c. 160 (A.D. 1813) this Act “so far as relates to persons denying as therein-mentioned respecting the Holy Trinity,” was repealed, and the expression of Unitarian opinions ceased to be a crime. The rest of the statute, however, is at this day in full force, and might at any moment be applied to any one who denies the Divine authority of the Bible, or the truth of the Christian religion, in private conversation. Persons convicted under this provision would do well to keep silence upon such subjects for the future, unless they see their way to a change of their opinions, for the Court has no power, on a second conviction, to mitigate the judgment to be pronounced against them. Civil disabilities of the most ruinous kind and three years imprisonment must be their lot. Minimum punishments in nearly every case are now exploded in the ordinary course of English criminal justice. For every common offence—except only treason, murder, and certain crimes which I need not specify—the Court may, if so minded, award a single day's imprisonment, or less. In most cases, two years' imprisonment is the maximum which can be given, but for the most temperate admission made in private conversation—say by a father to a son—of disbelief in the Divine authority of Scripture, nothing less than three years' imprisonment, and civil infamy can upon a second conviction be awarded by law.
I am not aware that this Act has ever been put in force, but it has been treated by the judges as imposing cumulative penalties upon what was already an offence at common law, and it may perhaps be taken as a statutory indication of the meaning of the dictum, that Christianity is part of the law of the land. Lord Wynford made some remarks on it in 1822, which are worth quoting as an explanation of its objects. Its object, he said, is—
“to give security to the Government by rendering men incapable of office who entertained opinions hostile to the established religion. The only penalty imposed by that statute is exclusion from office” (this is altogether incorrect), “and that penalty is incurred by any manifestations of dangerous opinions, without proof of the intention in the person entertaining it, either to induce others to be of that opinion, or in any manner to disturb persons of a different persuasion.”In other words, the object of the statute is the punishment of the expression of opinions supposed to be dangerous to society— however private, however temperate, may be the mode of expression, and however legitimate may be the occasion which calls for it. If a pious public servant, sorely tried by the controversies of the day, were to confide to the parish clergyman the fact that he had ceased to believe in the Divine authority of the Scriptures, and were to ask for arguments by which his former belief might be restored, he must, on a first offence, be dismissed and rendered incapable of public employment, and if he repeated his crime, he must, on conviction, be imprisoned for three years, and subjected to the incapacities specified. Mr. James Mill no doubt communicated his views on the subject of religion to his son. Whether this was an offence for which he might have been ruined by expulsion from the India House would depend on the question whether a post under the East India Company could properly be called a civil employment. Mr. John S. Mill might say what he pleased (subject to the law as to heresy, blasphemy, blasphemous libel, and despising the Sacrament), because he was not educated as a Christian, and never professed the Christian religion. Names of very distinguished living public servants, who might at any moment be utterly ruined (to the great injury of the public service) by the application of this Act, must occur to everyone. For obvious reasons I do not mention them here.
This completes the review which I undertook of the existing state of the law upon this subject. Its mere statement supersedes the necessity for any elaborate discussion of its merits and demerits. It is surely so plain as to need no proof that the law, as I have stated it, is in hopeless and direct opposition to the general current of principle and opinion in the present day. Nor is it difficult to see why this is so. The practical administration of the law generally reflects, not unfaithfully, the temper of the times; but the theory of the law alters at a much slower rate. The law of England was originally framed upon the theory that a certain set of theological doctrines were absolutely true, and that it was a crime to deny any of them. The extreme rarity of the crime, and the circumstance that it could hardly be committed by any one but a clergyman, caused it for some time to be treated with mildness. When the doctrines of the Church were seriously attacked, and when heresy came to be common amongst the laity, heresy was treated as a crime worthy of death, and serious (and for a time not altogether unsuccessful) attempts were made to put it down by main force. When the King and the Pope quarrelled, heresy did not cease to be criminal, though the definition of it was narrowed, and though it was less frequently, and in most cases less severely punished. The intense unpopularity of the High Commission Court and of its smaller, but perhaps more irritating local representatives, led, as I have shown, to the abolition of the inquisitorial procedure, which was characteristic of it, but the theory of persecution remained untouched, though the practice of it was crippled. The Toleration Act, and the subsequent statutes which enlarged it, are all exceptions to the general rule of law, which is persecution; and the invention by the judges of the offences of blasphemy at common law, and blasphemous libel, and the enactment by the legislature of the statute of William III., were meant to supply, and to a certain extent have supplied and do supply, the place of the ecclesiastical procedure, which was swept away in 1640, and revived in the crippled condition in which it still exists in 1661.
Ought this state of things to continue? I am most earnestly of opinion that it ought not, and I rest that opinion not upon any abstract theory about liberty of conscience, but on several broad, patent, notorious facts. First, it is plain and notorious that the truth of Christianity, the Divine authority of Scripture, the existence of God, and the very possibility of a future life, are, as a matter of fact, denied by a large and increasing number of persons in good faith, upon intelligible grounds, and as any other opinions might be denied or affirmed. That there are in England many conscientious and respectable atheists and infidels of different kinds is as simple and notorious a fact as that there are in England many conscientious and respectables Roman Catholics, Quakers, and Jews. Moreover, the laws which I have stated have proved utterly incompetent to prevent the spread of these opinions; they are systematically defied with impunity, and if any man who holds, has held, or could hope to hold the office of Attorney General were to attempt to put them in force, the Ministry to which he belonged would either have to turn him out of his place or be themselves turned out of power. A penal law which cannot be enforced, and which the guardians of the law dare not enforce, is like a loaded fire-arm too old and rusty to be fired, lying about in a lumber-room. It may do no harm for years, but any accident may cause it to go off, and if it does, it will in all probability hardly do anything but mischief. Look at the different laws one by one which I have cited, and say which of them could ever be useful under any conceivable circumstances? Who could ever wish to see a man tried at the Quarter Sessions for “despising the Sacrament?” Would the Church of England survive the scandal of the prosecution of a layman for heresy, and his being sentenced to six months' imprisonment for refusing to do penance? The cruel and capricious statute of William III.-capricious because it omits to punish atheism, cruel for reasons already stated—never has been and never could be put in force without exciting universal disgust. It exists only because it is forgotten. Prosecutions for blasphemy and blasphemous libel are the only other form under which those who reject Christianity can be punished. Have such prosecutions ever caused—can they ever cause—any results which the most ardent friend of Christianity can approve off This may deserve a little consideration.
The prosecutions which have occurred may be divided into two principal classes—namely, prosecutions of persons guilty of blasphemy in the common sense of the word—that is, of levelling coarse abuse against things and persons regarded as sacred, and prosecutions of persons who have argued seriously and in good faith against Christianity. Whether the publication of a perfectly decent and respectful attack upon Christianity is or is not criminal—I am disposed to think that it is, though the point is not so perfectly plain as to prevent the judges from holding the contrary if they liked—I think no case of such a prosecution has occurred, at all events, for about 150 years.
Of prosecutions for blasphemy proper it is not necessary to say much. Such conduct is obviously wrong upon any theory as to the truth of religion. It cannot be otherwise than a breach of good manners and an act of disrespect to established institutions. I think, however, that it ought not to be prosecuted, unless indeed it is committed under circumstances likely to produce a breach of the peace, in which case I would deal with it on that ground only. By punishing mere coarseness of expression, a mischievous, irrational sensitiveness is encouraged. A man of sense ought not to be pained, and I think most English gentlemen would not, in fact, be pained by being coarsely abused. They would feel simple contempt for the person who called them names; and rational men, I think, would feel in the same way about blasphemy. That at all events is the state of mind which the law should encourage in this case as it does in others. Mere vulgar abuse of individuals is not actionable. Why should vulgar abuse of religion be punishable, unless of course it has a direct and obvious tendency to produce a breach of the peace?
Again, unequal justice is injustice, and it is surely inexpedient, and would appear to common apprehension to be unjust, to allow polished ridicule to go unpunished when coarse railing is treated as a crime. Ridicule, however, is too subtle and refined a matter for legal punishment if it were otherwise desirable to prevent it. I would invite any one who thinks that coarse abuse of religion should be punished, to read over again Gibbon's historical account of the doctrine of the Trinity, not far from the beginning of the twenty-first chapter of the Decline and Fall, ending with the expression—“Within these limits the almost invisible and tremulous ball of orthodoxy was allowed securely to vibrate.” This celebrated passage was no doubt intended to produce, and has in fact produced, an amount of scepticism upon the subject to which it relates incomparably greater than that of any amount of coarseness and brutality. Yet to make it the subject of criminal prosecution would be perfectly monstrous, unless indeed a thoroughgoing persecution is directed against scepticism. To send a poor miserable labourer to gaol for writing offensive remarks about Christianity on a five-barred gate with a piece of chalk, whilst Gibbon is read by every educated man in the country, and edited by Milman and Guizot, is like punishing the throwing of stones and rewarding systematic poisoning.
The great objection, however, to treating mere blasphemy as a crime, is to be found in considering the second of the two classes of prosecutions mentioned above. Practically, prosecutions for the employment of coarse and disrespectful expressions are used in order to suppress serious arguments. People are prosecuted not because their publications are blasphemous, but because they are anti-Christian, and because, to a devout believer in Christianity, every pointed denial of its doctrine, every exposure of the weak side of any common opinion, appears blasphemous. In politics, it has long been recognized that if discussion is to be real it must be altogether unbridled and unrestrained, except by the silent checks of good taste and judgment. If a man thinks his antagonist foolish, absurd, and mischievous, he must be allowed to say so in the plainest terms. He will not be able to do justice to his views unless he can say what he likes. Wherever this license is extended to all alike, the same result inevitably follows—which is, that people learn that coarseness, hard words, and the calling of names are faults and weaknesses; that they put those who are guilty of them in the wrong, and expose them to mortifying and humiliating retorts. Language was far ruder and coarser than it now is, both in political and religious discussion, when the law both of political and blasphemous libel was a formidable reality instead of being a mere relic of the past. The coarseness and brutality of Paine greatly diminished his influence. If he had been as polished a writer as Bishop Watson, his antagonist, he would have produced far more effect than he did, though the effect which he certainly did produce was very considerable, and was not much diminished by the prosecutions directed against his publishers.
To these considerations, it must be added that the present law is so utterly opposed to the present state of feeling that in the course of the last forty years it has hardly ever been put in force, though during the last fifteen years Christianity, and even the belief in God and a future state, have been combated with an energy, pertinacity, and plainness of speech altogether unexampled. When such books as Strauss' Confession, and Supernatural Religion (I confine my illustrations to deceased or anonymous authors) are read in all directions, and when periodicals—to which persons of the highest eminence avowedly contribute—publish continually articles denying the Divine authority of the Scriptures, and the truth of the Christian religion, the laws which forbid such discussions may be said to have broken down, and ought to be repealed—to recur to my former illustration—on the principle on which it is prudent to unload a blunderbuss too rusty to be fired.
If we look back upon what such prosecutions actually effected, I think the argument against them is as strong as if we look at the manner in which the law is now defined. That they did not check the open growth of scepticism, or preserve the institutions which they were intended to defend, is obvious from the result. They had one effect, however. They threw the open advocacy of anti-Christian opinions, and the publication of open attacks upon Christianity, into the hands of men who had nothing to lose in character and position—authors like Paine, and booksellers like Eaton or Carlile. They helped to complete the alliance between religious and political disaffection, and they forced serious and quiet unbelievers to take up a line of covert hostility to Christianity which was injurious to their own honesty and directness of purpose on the one hand, and doubly injurious to Christianity itself in the long run. It is impossible to imagine anything more paltry and wretched than the advantages which Christianity obtained by the law against blasphemous libels. Bella geri placuit nullos habitura triumphos. I will recall a few of these miserable victories. In 1796, and again a few years later, the publishers of Paine's Age of Reason were prosecuted. The first of these was a man named Williams [See his case, 26 S.T.] against whom Lord Erskine delivered a tawdry piece of declamation which was much admired at the time. Williams's counsel, one Stewart Kyd, defended his client by justifying what Paine had said, in a speech which, though as injudicious as possible from the advocate's point of view, is in many parts forcible. Lord Kenyon summed up with touching horror, and is reported to have told the jury that the truth of Christianity [P.704] was originally established by discussion, and that persons acquainted with literature “have seen what Julian, Justin Martyr, and other apologists have written, and have been of opinion that the argument was in favour of these very publications,” (i.e., the books of the Bible). Williams was of course convicted and sentenced to a year's imprisonment and hard labour, and bound over to be of good behaviour for life in his own recognizance of £1,000. Paine's Age of Reason has been republished again and again ever since, and may at this day be procured by any one who wishes to read it. [I may observe that all the principal points of it are extracted and reprinted in the report of the trial, where I first read them when a boy many years ago, as I have no doubt is the case with many other persons.]
This is one side of the story. Here is another side of it. In the notes to the report of the case, is published a wonderfully egotistical letter from Erskine to Mr. Howell, the editor of the State Trials, about the law and practice of retainers. In the midst of a number of paltry anecdotes about himself and his exploits, it contains this touching passage, which shows what sort of people used to be hit by prosecution for blasphemous libels—
“Having convicted Williams, as will appear by your report of his trial. and before he had notice to attend the Court to receive judgment, I happened to pass one day through the old Turnstile from Holborn into Lincoln's Inn Fields, when, in the narrowest part of it, I felt something pulling me by the coat, when, on turning round, I saw a woman at my feet, bathed in tears, and emaciated with disease and sorrow, who contrived almost to drag me into a miserable hovel in the passage, where I found she was attending upon two or three unhappy children with the confluent small-pox, and in the same apartment, not above ten or twelve feet square, the wretched man I had convicted was sewing up little religious tracts, which had been his principal employment in his trade. I was fully convinced that his poverty, and not his will, had led to the publication of this infamous book, as, without any kind of stipulation for mercy on my part, he voluntarily and eagerly engaged to find out all the copies in circulation, and to bring them to me to be destroyed.”To the credit of his humanity and sagacity, Erskine represented these facts to the Society for the Suppression of Vice, by whom the prosecution of Williams had been instituted, and suggested to the eminent persons who composed it (Mr. Wilberforce, I am grieved to say, was one of the committee who considered the application) that it would be at once kind, wise, and highly popular to allow him to recommend the wretched man to mercy, on the ground of his ignorance, misery, and absence of any intention to offend. The committee unanimously refused to interfere, and Williams received the sentence I have mentioned, saying, “I trust it may not be too great an indulgence that I may have a bed;” and received from Lord Kenyon the answer, “I cannot order that.”
The last instance, so far as I know, of a prosecution of this sort, occurred in the summer of 1857, when a labourer was convicted before Mr. Justice Coleridge, at Bodmin, for scrawling profane remarks with chalk on gates and walls. He received a sentence of eighteen months' imprisonment, which was afterwards reduced to either two or three by the Home Secretary. The vehement, and in many respects unjust and scandalous charges brought in connection with this case by Mr. Buckle against both Sir John Coleridge and the present Lord Coleridge, who was counsel for the Crown, are well known. Whatever might be thought of Mr. Buckle's articles, I doubt whether anyone could fail to regret that the prosecution ever took place at all. Considering the state of English literature, both in 1857 and since, there never was such an instance of straining at gnats and swallowing camels.
If successful prosecutions for these offences are wretched successes, unsuccessful ones are real defeats. Hone's acquittal upon three successive informations, tried before Justice Abbott and Lord Ellenborough, covered those who were concerned in the prosecution with disgrace, and exhibited to the world the spectacle of the Lord Chief Justice of England baffled, humiliated, and trampled in the dust in his own Court by an obscure keeper of a bookstall, who happened also to be a man of singular spirit, courage, and reading. The truth is, that in such prosecutions the judge is, and always must be, at a disadvantage. If he allows the defendant to say what he likes (which in practice he is always forced to do, under an awkward affectation of treating him with contempt), the trial produces a repetition of the offence, and ends either in a triumph for the defendant or in his martyrdom. If, on the other hand, he interferes, he plays the part of a persecutor and an oppressor. The defendant threatens (as Hone did) to sit down and make no defence at all, and the result always is that the judge has to give way. The law, in short, can never in practice produce any desirable result. It can effect nothing but scandal—the scandal of ruining and crushing some poor, helpless, defenceless creature who is not worth notice, or the scandal of producing a conflict between the law and a man of spirit and courage, in which the law must of necessity get the worst of the encounter.
I have only one further remark to make on this part of the subject. Let anyone read the autobiography of Mr. John Mill, compare it with his works, and ask himself whether every one of them does not show the clearest traces of a deep-seated hostility to religion, carefully instilled into the son by the father, and of a settled determination on the part of the son to sap the very foundations of religion, by means of a mode of attack which no law short of the Spanish Inquisition could possibly reach. Let him further ask, whether this state of mind was not produced in John Mill—a man who had a strong natural leaning to some parts of the Christian system—by the restraint as to the expression of his real opinions, which lay so heavily both on his father and on himself. Probably hardly any work of our day has done so much to shake the foundations of theology as Mill's Logic, and if read in the light of its author's Autobiography, it is impossible not to believe that this result was intended. I well remember, many years ago, hearing of an Oxford student who said that he had read every word of it carefully, and that it contained not one word which was inconsistent with atheism. The remark was perfectly true. Read, again, the Essay on Liberty. The principles of the book, which has had astonishing popularity, appear to me, for reasons which I have elsewhere stated at large, [See a book called Liberty, Equality, and Fraternity.] to be fatal to all government whatever. Look at the Autobiography, and I think it is clear that the book is like an invective against shoes written by a man whose shoes pinch. If the author had felt quite safe, legally and socially, in speaking his mind against Christianity, or the parts of it which he did not like, he would not have found it necessary to write what is, in terms, an attack on all government whatever. If anyone had said to him, “Why don't you speak out like a man? Why don't you expose the superstitions and falsehoods, as you consider them, under which we are all groaning, boldly and decisively, and with all the powers of your mind? Why will you write about logic, and metaphysics, and liberty, when you really care about politics and religion?” he would have replied, “I will not do what you suggest for two reasons. First, I will not put it in the power of any bigot, who thinks he would do God service by so doing, to deprive me of my place at the India Office and to send me to gaol; and in the next place, you will find in the long run that the zig-zag mode of approach is good in controversy as well as in sieges. The sap and the mine must in time take us into the heart of the place. If we try to storm the town now, we shall simply be knocked on the head.” Is Christianity a gainer by this? Is it not obvious that the real alternative is between complete freedom and that thoroughgoing and effective persecution, which no one in these days would think of?
For these reasons it appears to me that the whole of the law which can possibly be applied to the punishment of the expression of religious opinions should be abolished. It might be effected by the following short Act, which I respectfully offer to any member of Parliament who cares to take the matter up:
“Whereas certain laws now in force and intended for the promotion of religion are no longer suitable for that purpose, and it is expedient to repeal them,
Be it enacted as follows:–
“1. After the passing of this Act no criminal proceedings shall be instituted in any Court whatever, against any person whatever, for atheism, blasphemy at common law, blasphemous libel, heresy, or schism, except only criminal proceedings instituted in Ecclesiastical Courts against clergymen of the Church of England.
“2. An Act passed in the 1st year of his late Majesty King Edward VI., c. 1, intituled “An Act against such as shall unreverently speak against the Sacrament of the body and blood of Christ, commonly called the Sacrament of the Altar, and for the receiving thereof in both kinds,’ and an Act passed in the 9th and 10th year of his late Majesty King William III., c. 35, intituled “An Act for the more effectual suppressing of blasphemy and profaneness,’ are hereby repealed. “3. Provided that nothing herein contained shall be deemed to affect the provisions of an Act passed in the 19th year of his late Majesty King George II., c. 21, intituled “An Act more effectually to prevent profane cursing and swearing, or any other provision of any other Act of Parliament not hereby expressly repealed.”
Contemporary Review, February 1875.
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