arrest of judgment, that as the intent of the book was only to show that the miracles of Jesus Christ were not to be taken in their literal sense, it could not be considered as attacking Christianity in general, but only as striking against one received proof of His being the Messiah; to which the Court said, that the attacking Christianity in the way in which it was attacked in this publication was destroying the very foundation of it; and that, though there were professions in the book that its design was to establish Christianity upon a true bottom by considering these narrations in Scripture as emblematical and prophetical, yet that such professions were not to be credited, and that the rule is allegatio contra factum non est admittenda. But the Court also said, that though to write against Christianity in general is clearly an offence at common law, they laid stress upon the word general, and did not intend to include disputes between learned men upon particular controverted points; and, in delivering the judgment of the Court, Raymond, C. J., said, 'I would have it taken notice of that we do not meddle with any differences of opinion, and that we interpose only where the very root of Christianity itself is struck at.'(d) The doctrine of the Christian religion constituting part of the law of the land was recognized in a later case, where the judgment of the Court of King's Bench was pronounced upon a person convicted of having published a blasphemous libel, called Paine's Age of Reason. (e) Ashhurst, J., said, that, although the Almighty did not require the aid of human tribunals to vindicate His precepts, it was, nevertheless, fit to show our abhorrence of such wicked doctrines as were not only an offence against God, but against all law and government, from their direct tendency to dissolve all the bonds and obligations of civil society; and that it was upon this ground that the Christian religion constituted part of the law of the land. That if the name of our Redeemer was suffered to be traduced, and His holy religion treated with contempt, the solemnity of an oath, on which the due administration of justice depended, would be destroyed, and the law be stripped of one of its principal sanctions, the dread of future punishments. (ƒ) Contumely and contempt are what no establishment can tolerate: but, on the other hand, it would not be proper to lay any restraint upon rational and dispassionate discussions of the rectitude and propriety of the established mode of worship. (g) A sensible writer upon the subject of libel says, as to this point that it may not be going too far to infer, from the principles and decisions, that no author or preacher who fairly and conscientiously promulgates the opinions with whose truth he is impressed, for the benefit of others, is, for so doing, amenable as a criminal; but a malicious and mischievous intention is in such case the broad boundary between right and wrong; and that if it can be collected, from the offensive levity with which so serious a subject is treated, or from other circumstances, that the act of the party was malicious, then, since the law has no means of distinguish (d) R. v. Woolston, Fitzgib. 66. no (e) This libel was of the worst kind, attacking the truth of the Old and New Testaments; arguing that there was genuine revelation of the will of God existing in the world; and that reason was the only true faith which laid any obligations on the conduct of mankind. In other respects also it ridiculed and vilified the prophets, our Saviour, His disciples, and the Sacred Scriptures. (f) R. v. Williams, 1797. Holt on Libel, 69, note (e). 2 Starkie on Libel, 141. (g) 4 Blac. Com. 51. ing between different degrees of evil tendency, if the matter published contain any such tendency, the publisher becomes amenable to justice.' (h) It is a question for the jury whether or not the words amount to a blasphemous libel. The wilful intention to insult and mislead others by means of licentious and contumelious abuse offered. to sacred subjects or by wilful misrepresentations or wilful sophistry calculated to mislead the ignorant and 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. (i) To asperse the truth of Christianity cannot per se be sufficient to sustain a criminal prosecution for blasphemy. To maintain that merely because the truth of Christianity is denied without more, therefore the person denying it may be indicted for blasphemous libel is, I venture to think, absolutely untrue. It is a view of the law which cannot be historically justified. Parliament, the supreme authority as to old law, has passed Acts which render the dicta of the judges in former times no longer applicable. And it is no disparagement to their authority to say that observations which were made under one state of the law are no longer applicable under a different state of things. As I observed before, I put it as a reductio ad absurdum that if it was enough to say that "Christianity was part of the law of the land," then there could be no discussion on any part of the law of the land, and it would be impossible, for example, to discuss in a grave argumentative way the question of a monarchical form of government, as Harrington discussed it in his "Oceana," without being liable to be indicted for a seditious libel. I was not aware that what I then put as a reductio ad absurdum had been judicially held, and that a man had actually been convicted of a seditious libel (R. v. Sedford, Gilbert's Rep. 297) for discussing such a question, his work containing, as the report states, no reflection upon the existing government. No judge or jury in our day would convict a man of seditious libel in such a case, it would be regarded as monstrous. I have no doubt therefore that the mere denial of the truth of Christianity is not enough to constitute the offence of blasphemy. . . . Whatever the older cases may have been, the fact remains that Parliament has altered the law as to religion. It is no longer the law that none but believers in Christianity can hold office in the State. The state of things is no longer the same as when the older judgments were pronounced, — judgments, however, which have been strained, I think, beyond what they will justly warrant. . . . The defendants have admitted that these publications were intended to be attacks on Christianity and on the Hebrew Scriptures, and have cited a number of passages from approved writers which they say are to the same effect. That may be so... and I lay it down as law that if the decencies of controversy are observed, even the fundamentals of religion may be attacked without the writer being guilty of blasphemy. But no one can fail to see the difference between the works of the writers who have been quoted and the language used in the publications now before us, and I am obliged to say that it is different not only in degree but in kind and nature. There (h) Starkie on Libel, 1st edit. 496, 497. See 2nd edit., vol. 2, 146-7. (i) Per Lord Coleridge, C. J., R. v. Bradlaugh, 15 Cox, C. C. 217. is a grave and earnest tone, a reverent, perhaps I might even say a religious, spirit about the very attacks on Christianity itself which we find in the authors referred to which shows that what they aimed at was not insult to the opinions of the majority of mankind nor to Christianity itself, but real, quiet, earnest pursuit of truth. And if the truth at which they have arrived is not that which you and I have been taught and at which perhaps we might now arrive, it is not because their conclusions differ from ours that they are to be deemed fit subjects for criminal prosecution.' (j) Where a defendant was charged with publishing a libel upon a religious order, consisting of females, professing the Roman Catholic faith, called the Scorton Nunnery, Alderson, B., observed, a person may, without being liable to prosecution for it, attack Judaism or Mahomedanism, or even any sect of the Christian religion, save the established religion of the country; and the only reason why the latter is in a different situation from the other is, because it is the form established by law, and is therefore a part of the constitution of the country. For the same reason any general attack on Christianity is the subject of a criminal prosecution, because Christianity is the established religion of the country. Any person has a right to entertain his opinions, to express them, to discuss the subject of the Roman Catholic religion, and its institutions; but he has no right in so doing to attack the characters of individuals. (k) As to the extent of this offence and the nature and certainty of the words, it appears to be immaterial whether the publication is oral or written; though the committing mischievous matter to print or writing, and thereby affording it a wider circulation, would undoubtedly be considered as an aggravation, and affect the measure of punishment. (1) SEC. IV. Publications against Morality. When the Star Chamber had been abolished, it appears that the Court of King's Bench came to be considered as the custos morum, having cognizance of all offences against the public morals; (m) under which head may be comprehended representations whether by writing, picture, sign, or substitute, tending to vitiate and corrupt the minds and morals of the people. (n) Formerly, indeed, it appears to have been holden that publications of this kind were not punishable in the temporal Courts; (0) but a different doctrine has since been established. (p) And in late times indictments for obscene writings and prints have frequently been preferred, without any objection having been made to the jurisdiction of the temporal Courts. () Per Lord Coleridge, C. J., in charging the jury, R. v. Ramsay, 15 Cox, C. C. 231. (k) Gathercole's case, 2 Lewin, 237. (7) 2 Starkie on Libel, 144, 2nd edit. (m) Sir Ch. Sedley's case, 1663. Keb. 720. 2 Str. 790. Sid. 168. (n) Holt on Libel, 73. (0) R. v. Read, 11 Mod. 142. 1 Hawk. P. C. c. 73, s. 9. (p) R. v. Curl, 2 Str. 788. R. v. Wilks, 4 Burr. 2527. The principle of the cases upon this subject seems to comprehend oral communications, when made before a large assembly, and when there is a clear tendency to produce immorality, as in the case of the performance of an obscene play. (q) SEC. V. Libels against the Constitution. Libels against the constitution, abstracted from all personal allusions, do not appear, either in ancient or modern times, to have been often made the subject of legal inquiry. In general, publications upon the constitution, avoiding all discussions of personal rights and privileges, are speculative in their nature, and not calculated to generate popular heat. But if they should be of a different description, tending to degrade and vilify the constitution, to promote insurrection, and circulate discontent through its members, they would, without doubt, be considered as seditious and criminal. (r) An intention to excite i will between different classes of her Majesty's subjects may be a seditious intention under all the circumstances of the case which are for the jury. Sedition embraces everything whether by word, deed, or writing which is calculated to disturb the tranquillity of the state and lead ignorant persons to endeavour to subvert its laws. (s) Thus it appears to have been adjudged, that though no indictment lay for saying that the laws of the realm were not the laws of God, because true it is that they are not the laws of God; yet that it would be otherwise to say that the laws of the realm are contrary to the laws of God. (t) And a defendant was convicted on an information charging him with having published, concerning the government of England and the traitors who adjudged King Charles the First to death, that the government of the kingdom consists of three estates, and that if a rebellion should happen in the kingdom, unless that rebellion was against the three estates, it was no rebellion. (u) In another case a person was convicted for publishing a libel, in which it was suggested that the revolution was an unjust and unconstitutional proceeding, and the limitation established by the Act of Settlement was represented as illegal, and that the revolution and settlement of the crown as by law established had been attended with fatal and pernicious consequences to the subjects of the kingdom. (v) SEC. VI. Libels against the King. Though a different construction may have prevailed in more arbitrary times, it is now settled that bare words, not relative to any act or design, however wicked, indecent, or reprehensible they may be, are not in themselves overt acts of high treason; but only a misprision, punishable at common law by a fine and imprisonment, nor other corporal punishment; (w) though words may expound an overt act, and show with what intent it was done. (x) And, generally speaking, any words, acts, or writing tending to vilify or disgrace the King, or to lessen him in the esteem of his subjects, or any denial of his right to the crown, even in common and unadvised discourse, amount at common law to a misprision punishable by fine and imprisonment. (y) There are also some legislative provisions upon this subject. The 3 Edw. 1, c. 34, enacts, that none be so hardy to tell or publish any false news or tales, whereby discord or occasion of discord or slander may grow between the King and his people, and the great men of the realm. (2) And with a view to the security of the succession of the House of Hanover, according to the Act of Settlement, a law was passed declaring it to be treason to write or print against it. (a) The nature of the offence of libel against the monarch personally has been ably explained and illustrated, according to the more mild and liberal doctrines of the present time, in the following case: The defendant was charged with having published a libel to the following effect: 'What a crowd of blessings rush upon one's mind, that might be bestowed upon the country in the event of a total change of system! Of all monarchs, indeed, since the Revolution, the successor of George the Third will have the finest opportunity of becoming nobly popular.' Lord Ellenborough, C. J., in addressing the jury, stated, that the first sentence of this passage would easily admit of an innocent interpretation; that the fair meaning of the expression 'change of system' was a change of political system, not a change in the frame of the established government, but in the measures of policy which had been for some time pursued; and that by total change of system was certainly not meant subversion or demolition, the descent of the crown to the successor of his Majesty being mentioned immediately after. His Lordship then proceeded: 'If a person who admits the wisdom and virtues of his Majesty, laments that in the exercise (w) 1 East, P. C. c. 2, s. 55, p. 117. (z) It is said to have been resolved by all the judges that all writers of false news are indictable and punishable (4 Read. St. L. Dig. L. L. 23); and probably at this day the fabrication of news likely to produce any public detriment would be considered as criminal. Starkie on Libel, 546, 1st edit. (a) 6 Anne, c. 7; and see other statutes which were passed for the purpose of guarding the King's character and title, cited in 2 Starkie on Libel, 171, 2nd edit. AMERICAN NOTE. It seems doubtful whether this would be held to be an offence in America. Bishop i. s. 477. |