treated with contempt, the solemnity of an oath, on which the due administration of justice depends, will be destroyed, and the law be stripped of one of its principal sanctions, the dread of future punishments."

27.

Abbott C. J. says-(e) "I have no doubt whatever that it (e) 1 B. & Cr is a libel to publish, that our Saviour was an impostor and a murderer."

Bigley J. says (f)" There cannot be any doubt that a work () Ib. that does not merely deny the godhead of Jesus Christ, but which states him to be an impostor and a murderer, in principle was at common-law, and still is, a libel.”

Ald., 166, 167.

Again, J. Best says-(a) That the rule of the common-law (a) 3 B & on this subject is necessary to guard "the system of morals, which regulates the conduct of the people," and which is "built on the Holy Scriptures."

(b) De Man

Manneville, 10 Vesey, 61.

So, Lord Eldon throws some light on the principles which govern English law on this subject, in several cases of guardianship of infants which came before him, and in which, as Chancellor, he was asked to interfere with the legal and natural right of the father to have the custody of his own children, on the ground of mischievous opinions entertained and acted on by the father-opinions not merely speculative, but leading to actual conduct prejudicial to the interests of the child. Thus he Since I have sat here, I removed a neville v. De. says-(b) child from its father upon considerations such as these. The father was a person in constant habits of drunkenness and blasphemy, poisoning the mind of the infant, and I thought it not inconsistent with a due attention to parental authority, so abused, to call in the authority of the king, as parens patriæ.” So, in another case, (c) he said-"Looking to a moral and reli- (c) Wellesley gious education, as the foundation of all that is valuable here, Beaufort, or is to be hoped for hereafter, I cannot put pecuniary considerations in the balance with the imperious duty imposed upon me, to take care that these children shall have a moral and religious education."

From the retrospect we have thus taken of the opinions of English judges on this subject, we may conclude that there are four grounds, and perhaps a fifth, assigned for the repression

v. Duke of

2 Russ., 29.

of profaneness by the penalties of the law. The first of these is perhaps technical and formal, rather than substantial :—

1. Christianity is part of the law of England, and to deride, or wantonly attack Christianity, is, therefore, to deride the law; and this the law cannot and does not permit. In other words, respect to religion (the religion of the state) is necessary to the independence and free action of the law, the arrangements of which are based on that religion or the sanctions of it.

The other grounds are perhaps substantial examples or embodiments of the general proposition, that Christianity is part of the law. Thus,

2. Blasphemy is an offence, because it endangers the foundations of government and society;

3. Because it tends to destroy or undermine the existing standard of morals;

4. Because it annihilates the meaning and sanctity of oaths, which the law holds to be necessary to the administration of justice.

I may observe, in passing, that it may be doubtful whether this argument derived from the nature of oaths, applies to any other than those libels which deny a future state of rewards and punishments, and whether it extends to those libels, which, admitting this, are directed only against the specialities of the Christian religion.

In other words, taking these judicial grounds as a whole, the law declares the libel of religion to be a nuisance to certain well-defined interests of both society and individuals. It is publicly and individually pernicious in a mode, and to an extent, of which the state can and ought to take notice.

The controversy, I admit, consists in these latter words, viz., that it is an offence "of which the state ought to take notice," or with which it can rightfully deal. This controversy we will endeavour to examine in the sequel.

I suggested that there might perhaps be a fifth reason found in our legal records in justification of the punishment of profaneness. I allude to the pious consideration that the honour of God requires such punishment. It may be admitted that this consideration is one of those examples adduced by the legisla

ture in the preamble of the only statute against blasphemy, which, as distinguished from the common law, now remains in our law. The 9 and 10 Will. III., c. 32, "an Act for the more effectual suppressing of blasphemy and profaneness,” recites, that, "many persons had of late years 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 which might prove destructive to the peace and welfare of this kingdom," and then proceeds to annex a punishment to the offence of publishing the libels in question.

It will not escape observation, however, that the public peace is here carefully joined with the other more elevated and sacred influence, as forming part of the mixed inducement which moved the legislature to interfere for the suppression of blasphemy. No one, indeed, need feel ashamed to avow, as matter of individual sentiment, that it is even the chiefest sin of blasphemy that it dishonours God; but, in dealing with the question how far that offence is a fit subject of civil enactment, as against infidels, we may perhaps (hesitatingly I say it) consent to treat this as not one of the actual grounds on which our law on this subject ought to rest.

Before inquiring whether the grounds thus mentioned in our law books, or any others that can be suggested, are sufficient to justify legal penalties on irreligious libels, let us first see clearly what are the actual cases in public or in private life, in which this question of blasphemy presents itself to the notice of the government or the judges. Let us be fully impressed with the fact, that there are real emergencies of constant occurrence in which the law must declare itself, as either having, or not having, a function to repress malicious attacks on religion.

Now, there are three distinct classes of cases of frequent occurrence in actual life, in which the state must either explicitly tolerate blasphemy, or actively prohibit it

1. There is the large class of cases in which the question is one of police. Shall religious decorum in public be protected and enforced by the criminal law? Here the law may consider first, the safety of government and society; and secondly, its

duty to the unprotected-i. e, the poor, the ignorant, and the young.

2. There are the numerous cases of endowed foundations or charities, in which the law must either allow or disallow the promotion of blasphemous objects and purposes, when any such are sought to be accomplished by the founders.

3. There are the cases of infants, whose care or guardianship comes by any means under the jurisdiction of the courts, and whose education in matters of religion the law must elect either to regulate, or abstain from regulating: in other words, a blasphemous father, whose child has property, must either retain the control over that child, with the opportunity of poisoning its mind, and misdirecting its future conduct, or he must be compelled to surrender its education to others, approved by the court.

I am well aware that the two last-mentioned classes of cases do not strictly belong to the subject of libels, which furnishes the nominal title of my paper. But it will be found impossible, I think, to omit those two classes of cases in the consideration of the question-whether our laws against blasphemy interfere unduly with liberty of opinion? We cannot, I submit, decide satisfactorily whether a blasphemous libel ought to be legally punishable, without solving, upon a consistent view of the whole subject, the allied questions-whether property may be devoted by law to the promotion of blasphemous objects; and whether children under age, whose persons and affairs come under judicial protection, may be brought up in active contempt of religion?

Every state must, in the course of its history, have occasion to deal with occurrences of the three different kinds which I have mentioned. It must either ignore them as unfit for its notice, or it must provide for them by express enactment. In our own country none of these cases are ignored. The law contains express provision for each class of cases. It prohibits profaneness as matter of police. It does not allow a charitable foundation, directed to the reproach or reviling of religion. It withdraws a child which has been made a ward in Chancery (or perhaps even when not a ward) from the custody of an

atheist father, whose principles are found actively fruitful of blasphemous conduct.

It is well known to all of us, that there have been celebrated public examples of the law's interference in all these different classes of cases. Thus, with regard to the first class of cases above mentioned, I may observe that Carlile and Williams were indicted, and punished, for the offence of blasphemy in publishing Paine's Age of Reason. Thomas Pooley, more

Wilson, 5

recently, was convicted of uttering and writing opprobrious epithets of our Saviour. Involving nearly the same considerations, was the prosecution in 1858, shortly after the attempt on the life of the Emperor of the French, of the publisher of a pamphlet on tyrannicide. In regard to the third class of cases, you will recollect that the poet Percy Bysshe Shelley was deprived, by Lord Eldon, of the custody and education of his child, on account of his blasphemous opinions-opinions with which his daily conduct, in certain particulars, accorded. So, Mr. Long Wellesley was restrained from interfering with the education of his children on similar grounds, though in his case the interference was less on account of his opinions than his mode of life. And in reference to charities, you will recollect the well-known cases of Lady Hewley's Charity (a), (a) Shore v. and the Attorney-general v. Pearson (b) (relating to a chapel Sett, N. S. at Wolverhampton), in which the doctrine of irreligious foun- (6) 3 Meг., dations being illegal, was fully discussed and recognized, though not actually held applicable in the circumstances of those cases. I may here, however, admit, that between charitable trusts and criminal libels there is this distinction-that many objects are regarded as contrary to public policy, and, therefore, illegal in trusts, which nevertheless could not be imported into, or made the subject of, an indictment. A trust to found a Jewish synagogue, is illegal (c), and so is a trust to circulate a publication (e) Da Costa advocating the doctrine, that the Pope has absolute supremacy Ambl., 223. in ecclesiastical matters over the sovereign of the state (d); but (a) De Thina book fairly arguing in support of the Jewish faith as distin- Bonneval, 5 guished from the Christian, or fairly contending for Papal supremacy, would not be the subject of an indictment. Heresy would be a sufficient objection to a charitable foundation

953.

53.

v. De Pas,

mines v. De

Russell, 283.