2

of such an offence.1 Still in grave cases, such as perjury or riot, it would probably be held a crime to agree to stifle a prosecution for reward. And such an agreement clearly would be invalid. But in some less serious cases such an agreement is not unlawful; indeed it is often sanctioned by the Court; and the sanction of the Court cannot make legal that which is criminal. After a prosecution to verdict any arrangement may be made between the prosecutor and the accused with the consent of the Court, and the Court will modify its sentence accordingly. In the case of an assault it is not illegal for a man to promise not to prosecute, if amends be made him; but no such compromise will oust the jurisdiction of a criminal Court, unless the Court has sanctioned it. And generally, wherever the injured party has both a civil and a criminal remedy, and might therefore have sued and recovered damages instead of prosecuting the misdemeanant, such a compromise is not illegal and will be enforced, though it was made without the sanction of the Court. But whenever public order or decency or any public right is concerned, any such agreement is invalid and will not bind the Crown, even if it was sanctioned by the Court; and the same or any other prosecutor can continue the prosecution.*

3

1 See the judgment of Palles, C. B., in Dillon v. O'Brien (1887), 20 L. R. Ir. 316; 16 Cox, 245.

2 Collins v. Blantern (1767), 1 Smith's L. C., 12th ed., 412.

8 Fisher v. Apollinaris Co. (1875), L. R. 10 Ch. 297.

4 R. v. Wood (1832), 3 B. & Ad. 657; Keir v. Leeman (1844), 6 Q. B. 308; (1846), 9 Q. B. 371; Windhill Local Board of Health v. Vint (1890), 45 Ch. D 351.

CHAPTER VII.

OFFENCES AGAINST RELIGION.

Heresy and Nonconformity.

CHRISTIANITY is the religion by law established in this realm. Nevertheless heresy is no crime. Heresy is the deliberate selection and adoption of a particular set of views or opinions on matters of religion, which the majority consider erroneous. For any one to persist in the tenet of his choice after its error and its injurious tendency have been pointed out to him-though at common law no crime-was regarded as a sin, and the obstinate heretic who refused to recant was bidden to do penance for the good of his soul. The secular Courts took no cognizance of any man's religious opinions; and indeed before the days of Wiclif heretics were scarce. Towards the end of the fourteenth century, however, heresy came to be regarded as a crime punishable with death; and Acts were passed in the reigns of Henry IV. and Henry V., which condemned all heretics to be burnt alive and gave the clergy the power of defining heresy just as they pleased. Terrible use was made of these Acts, especially in the reign of Queen Mary. But by the 1 Eliz. c. 1, s. 6, all statutes relating to heresy were repealed. "At this day," says Sir Edward Coke,1 "no person can be indicted or impeached for heresy before any temporal judge, or other that hath temporal jurisdiction." By the 29 Car. II. c. 9, s. 1, the writ de hæretico comburendo was abolished. It is not known that any layman has been prosecuted for heresy since 1640. Again, the Church of England is the Church by law established in England. Yet nonconformity is no crime.

1 12 Rep. 57.

No

Court, civil or ecclesiastical, can any longer proceed against a layman for mere nonconformity. By the 4th section of the Toleration Act, no dissenter shall be prosecuted in any Ecclesiastical Court for or by reason of his nonconformity to the Church of England. "The canon law forms no part of the law of England, unless it has been brought into use and acted upon in this country: the burden of proving which rests on those who affirm the adoption of any portion of it in England."" The Ecclesiastical Courts of the Church of England no longer possess any criminal jurisdiction over laymen. "As against laymen, whatever may be the nature of the charge, undoubtedly the Court has no jurisdiction to entertain a criminal suit."3 "Speaking generally, and setting aside for the moment all questions as to the clergy, it cannot, I think, be doubted that a recurrence to the punishment of the laity for the good of their souls by Ecclesiastical Courts would not be in harmony with modern ideas, or the position which ecclesiastical authority now occupies in the country. Nor do I think that the enforcement of such powers, where they still exist, if they do exist, is likely to benefit the community.'

Even over clergymen of the Established Church the power of the Ecclesiastical Courts on questions of heresy is very limited. The judgment of Her Majesty's Privy Council (including the Archbishop of Canterbury) decided that it is not an ecclesiastical offence, even for the clergy, to dispute the dates and authorship of the several books of the Old and New Testaments, to deny that the whole of the Holy Scriptures was written under the inspiration of the Holy Spirit, to reject parts of Scripture upon their own opinion that the narrative is inherently incredible, to disregard precepts in Holy Writ because they think them evidently wrong, so long as they do not contradict any doctrine laid down in the Articles or Formu Jaries of the Church of England. 5

1 Will. & Mary, c. 18. Although by s. 17 it was provided that the benefits of the Act should not extend to Unitarians, this exception was repealed in 1813 by the statute 53 Geo. III. c. 160.

2 Per Lord Denman, C. J., in R. v. The Archbishop of Canterbury (1848), 11 Q. B. at p. 649; and see Middleton v. Croft (1734, 1736), Lee's Cases temp. Hardwicke, 57, 326; Year Book, 34 Hen. VI. fo. 38 (1459); Priscot, c. 5; Fitzh. Abr. quare imp. 89; Bro. Abr. quare imp. 12. 3 Per Sir H. Jenner Fust in Burder v.

see Woods v. Woods (1810), 2 Curteis, 516.

(1844), 3 Curteis, at p. 827; and

Moore P. C.

Per Lord Penzance in Phillimore v. Machon (1876), 1 P. D. at p. 487. 5 Williams v. Bishop of Salisbury, Wilson v. Fendall (1864), (N. S.) 375; Brodrick & Fremantle, 247; Gorham v. Bishop of Exeter (1850), ib. 64.

Blasphemy.

It is a misdemeanour to speak, or to write and publish, any profane words vilifying or ridiculing God, Jesus Christ, the Holy Ghost, the Old or New Testament, or Christianity in general, with intent to shock and insult believers, or to pervert or mislead the ignorant and unwary. This intent is an essential element in the crime, and is generally inferred from the intemperate and scurrilous language of the accused.1 The disputes of learned men, and publications discussing with decency questions as to Christianity and the Scriptures, are not punishable as blasphemy. If the decencies of controversy are observed, even the fundamentals of religion may be attacked. A man is free to teach what he likes as to religious matters, even if it is unbelief, but in considering whether he has exceeded the permitted limits, the place where he speaks, and the people to whom he speaks, have to be taken into account. If he is arguing for an honest belief in a doctrine or a non-doctrine to which he is attached, he is not guilty of publishing blasphemous words. But if, not for the sake of argument, he makes a scurrilous attack on doctrines, which the majority of persons hold to be true, in a public place where passers-by may have their ears offended and where young people may come, he renders himself liable to the law of blasphemy.3

The offence is not triable at Quarter Sessions.

Heresy and blasphemy, then, are entirely distinct and different things, both in their essence and in their legal aspect. Originally, both were ecclesiastical offences not cognizable in the secular Courts. Then statutes were passed under which both became crimes punishable in the ordinary law Courts. Now heresy is once more a purely ecclesiastical offence, punishable only in the clergy; while blasphemy is the technical name for a particular offence against the State. It is a crime against the peace and good order of society, an outrage on men's religious feelings, tending to a breach of the peace.

Per Lord Coleridge, L. C. J., in R. v. Ramsay and Foote (1883), 48 L. T. at p. 739; 15 Cox, 231. See R. v. Bradlaugh (1883), 15 Cox, 217; Odgers' Libel and Slander (5th ed.), Chap. XVII., Blasphemous Words.

R. v. Ramsay and Foote (1883), 15 Cox, 231; Bowman v. Secular Society, Ltd., [1917] A. C. 406.

3 R. v. Boulter (1908), 72 J. P. 188; and see the Burial Laws Amendment Act, 1880 (43 & 44 Vict. c. 41), s. 7.

The Ecclesiastical Courts cannot take cognizance of any blasphemous publication, which is punishable in the secular Courts. For "where the common or statute law giveth remedy in foro seculari (whether the matter be temporal or spiritual), the conusance of that cause belongeth to the King's temporal Courts only." Hence it is only over blasphemous libels not punishable by the common law or under any statute that the Ecclesiastical Courts can have any jurisdiction at all.o

Sacrilege and Brawling.

The law protects all places of worship, Christian, Jewish or whatever they may be, from felonious entry by dishonest persons. It also forbids all unseemly interruption and disturbance during the hours of Divine service in any church, chapel or other place of worship, belonging to any religious denomination.

It is sacrilege to break and enter, whether by day or by night, any place of Divine worship and commit any felony therein; or, being in any such place of worship, to commit a felony therein, and then break out. The offence in either case is a felony punishable with penal servitude for life, and cannot be tried at Quarter Sessions. It is also a felony, punishable with penal servitude for seven years, to break and enter at any time of the day or night any place of worship with intent to commit a felony therein. It is sufficient if the vestry be broken into, for the vestry is part of the place of Divine worship."

5

Disturbing public worship is a statutory misdemeanour. Under this head would be included the disturbing or molesting of the preacher or of any of the congregation, and the interruption of any Divine service legally performed. "Brawling" consists of "riotous, violent or indecent behaviour" in any church or chapel, or in the grounds of such a building, and may be punished summarily by fine (not exceeding £5) or imprisonment (not exceeding two months).

1 Coke upon Littleton, 96 b, and see Phillimore v. Machon (1876), 1 P. D. 481.

2 R. v. Curl (1727), 2 Str. 788; 1 Barnard. 29.

8 Larceny Act, 1916 (6 & 7 Geo. V. c. 50), s. 24.

4 5 & 6 Vict. c. 38, s. 1.

5 Larceny Act, 1916, s. 27 (2).

6 R. v. Evans (1842), Car. & M. 298,

7 52 Geo. III. c. 155, s. 12; extended by 9 & 10 Vict. c. 59, s. 4.

23 & 24 Vict. c. 32, s. 2.