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now repealed by 53 Geo. 3. c. 160.: but while it was in existence it was considered as operating to deprive the offender of the benefit therein mentioned, leaving the punishment of the offence as for a misdemeanor at common law.(n) The 9 & 10 W.3. c. 32. enacted that if any person, educated in or having made profession of the Christian religion, should, by writing, printing, teaching, or advised speaking, deny the Christian religion to be true, or the Holy Scriptures to be of Divine authority, he should upon the first offence be rendered incapable to hold any office or place of trust; and for the second be rendered incapable of bringing any action, being guardian, executor, legatee, or purchaser of lands, and should suffer three years' imprisonment without bail. (0) A person offending under this statute was held to be also indictable at common law. (p) This doctrine was considered in a recent case where a motion was made in arrest of judgment, after conviction on an information for a blasphemous libel, on the ground that this statute had put an end to the common law offence : and the Court were clear that it had not, considering that the provi
sions of the statute were cumulative. (9) To reproach Upon the trial of an information against the defendant for utter
ing expressions grossly blasphemous, Hale, C. J., observed, that religion is to
e such kind of wicked blasphemous words were not only an offence speak in subversion of the to God and religion, but a crime against the laws, state, and law.
government, and therefore punishable in the Court of King's Bench. That to say religion is a cheat is to dissolve all those obligations whereby civil society is preserved ; that Christianity is part of the laws of England, and therefore to reproach the Christian religion is to speak in subversion of the law. (r) In a late case where a libel stated that Jesus Christ was an impostor, a murderer in principle, and a fanatic, a juryman asked whether a work denying the divinity of our Saviour was a libel; and Abbott, C.J., answered, that a work speaking of Jesus Christ in the language here used was a libel; and the defendant was found guilty. Upon a motion for a new trial, on the ground that this was a wrong answer, the Court without difficulty held that the answer was
right, and refused the rule.(a) The Christian
In a case where the defendant had been convicted for publishing religion is part several blasphemous libels, in which the miracles of our Saviour of the law of were turned into ridicule and contempt, and His life and converthe land,
sation calumniated, it was moved in arrest of judgment that this was not an offence within the cognizance of the temporal courts at common law : but the Court would not suffer the point to be argued, saying that the Christian religion, as established in this kingdom, is part of the law; and, therefore, that whatever derided Christianity derided the law, and consequently must be an offence
(n) By Lord Kenyon in Rex v. Wil- v. Caton, 1812. This statute also reliams, 1797. Holt on Libel, 66. lated to persons denying, as therein
(0) But the delinquent publicly re- mentioned, respecting the Holy Triuily; nouncing his error in open court, with but such provisions are repealed by 53 in four months after the first convic- Geo. 3. c. 160. tion, is to be discharged for that once (9) Rex v. Carlisle, 3 B. & A. 161. from all disabilities.
(r) Rex v. Taylor, Vent. 293. 3 Keb. (p) Barnard. 162. 2 Str. 834. Fitz. 607. gib. 64. Rex v. Williams, 1797. Rex (a) Rexo. Waddington, 1 B. & C. 26.
mniato ridiculels, in
against the law.(r) It was also moved in arrest of judgment, that as the intent of the book was only to shew 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 But though to the very foundation of it; and that, though there were professions write against in the book that its design was to establish Christianity upon a xeneral is an
Christianity in true bottom by considering these narrations in Scripture as em offence atcomblematical and prophetical, yet that such professions were not to mon law, the
court will not be credited, and that the rule is allegatio contra factum non est
meddle with admittenda. But the Court also said that though to write against differences of Christianity in general is clearly an offence at common law, they opinion upon
controverted laid a stress upon the word general, and did not intend to include one disputes between learned men upon particular controverted points; and, in delivering the judgment of the Court, Raymond, Lord 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.”(s)
The doctrine of the Christian religion constituting part of the The dread of law of the land was recognised in a later case, where the future punish
ment is one of judgment of the Court of King's Bench was pronounced upon the principal a person convicted of having published a very impious and blas- sanctions of phemous libel called Paine's Age of Reason. (t) Ashhurst, J., the law. said, that although the Almighty did not require the aid of human tribunals to vindicate His precepts, it was nevertheless fit to shew 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. (u)
Contumely and contempt are what no establishment can tolerate: Rational and but, on the other hand, it would not be proper to lay any restraint dispassionate upon rational and dispassionate discussions of the rectitude and discussi
allowable. propriety of the established mode of worship. (w) 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 deci“sions, that no author or preacher who fairly and conscientiously
promulgates the opinions with whose truth he is impressed, for
(r) Rex v. Woolston, Barnard. 162. obligations on the conduct of man2 Sir. 834. Fitzgib. 64.
kind. In other respects also it ridi(8) Rex u. Woolston, Fitzgib. 66. culed and vilified the prophets, our
(1) This libel was of the worst kind, Saviour, His disciples, aud the Sacred attacking the truth of the Old and New Scriptures. Testaments; arguing that there was no (u) Rex v. Williams, 1797. Holt on genuine revelation of the will of God Libel, 69, note (e). existing in the world ; aud that reason (W) 4 Bla. Com. 51. was the only true faith which laid any
< the benefit of others, is, for so doing, amenable as a criminal; “ that 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 sub“ject is treated, or from other circumstances, that the act of the “ party was malicious, then, since the law has no means of dis“ tingishing between different degrees of evil tendency, if the “ matter published contain any such tendency, the publisher be“ comes amenable to justice."(x)
At to the extent of this offence and the nature and certainty of the words, it appears to be inmaterial 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 punishmeut.(y) Ofpublications II.' When the Star-Chamber had been abolished, it appears that against moral- the
the Court of King's Bench came to be considered as the custos ity.
morum, having cognizance of all offences against the public morals; (2) 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. (a) Formerly, indeed, it appears to have been holden that publications of this kind were not punishable in the temporal courts :(b) but a different doctrine has since been established. (c) 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. Oral commu- The principle of the cases upon this subject seems to comprenications.
hend 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. (d) Ofpublications III. Libels against the constitution, abstracted from all personal against the constitution.
allusions, do not appear, either in ancient or modern times, to have been often made the subject of legal enquiry. 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. (e)
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 () Starkie on Libel, 496, 497.
(d) Starkie on Libel 504. In Rex r. (y) Starkie on Libel, 493.
Curl, 2 Str. 790. it was stated that (z) Sir Ch. Sedley's case, 1663. Keb. there had been mapy prosecutions 720. 2 Str. 790. Sid. 168.
against the players for obscene plays, (a) Holt on Libel, 73.
but that they had interest enough (6) Rex v. Read, 11 Mod. 142. I to get the proceedings slayed before Hawk. P. C. c. 73. S. 9.
judgment. (c) Rex v. Curl, 2 Str. 788. Rex v. (C) Holt ou Lib. 86. Wilks, 4 Burr. 2527.
contrary to the laws of God. (f) 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. (g) 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 aud pernicious consequences to the subjects of this kingdom. (h) IV. Though a different construction may have prevailed in Of publica- .
tions against more arbitrary times, it is now settled that bare words, not rela- the
the King. tive 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 fine and imprisonment, or other corporal punishment. (i) Though words may expound an overt act, and shew with what intent it was done. (k) 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 corporal punishment. (1)
There are also some legislative provisions upon this subject. Statutes. The 3 Edw. 1. c. 34. enacts that none be so hardy to tell or pub. lish 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. (m) 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. (n)
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 a case of recent occurrence.
The defendant was charged with having published a libel to the Rex v. Lamfollowing tenor and effect : “ What a crowd of blessings rush po
bert and “ upon one's mind, that might be bestowed upon the country in It is not libel“ the event of a total change of system! Of all monarchs indeed lous for a wri
u ter who allows “since the revolution, the successor of George the Third will
1 the sovereign (f) 2 Roll. Abr. 78.
(1) 4 Blac. Com. 123. (8) Rex v. Harrison, 1677. 3 Keb. (m) It is said to have been resolved 841. Vent. 324. And a treatise upon by all the Judges that all writers of hereditary right was holden to be a false news are indictable and punishlibel, though it contained no reflec- able; (4 Read. St. L. Dig. L. L. 23.) tion upon any part of the then govern- and probably at this day the fabricament, Reg. v, Bedford 1711. 2 Str. tion of news likely to produce any 789. Gilb. 297.
public detriment would be considered (h) Rex v. Nutt, 1754. Dig. L. L. as criminal. Starkie on Lib. 546. 126. and see Dr. Shebbeare's case, and (n) 6 Anne, c. 7.; and see other staRex v. Paine, Holt on Lib. 88, 89. and tutes which were passed for the purStarkie on Lib. 508.
pose of guarding the King's character (0) 1 East. P. C. c. 2. s. 55. p. 117. and title, cited in Starkie on Lib. 520, (k) Crohagan's case, Cro. Car. 332. 521.
to be solicit- « have the finest opportunity of becoming nobly popular.” Lord ous for the
Ellenborough, C. J. in addressing the jury, stated, that the first
fulanh welfare of his subjects, and sentence of this passage would easily admit of an innocent interwho has no pretation ; that the fair meaning of the expression “ change of calumniating
system” was a change of political system-not a change in the him, or of frame of the established government—but in the measures of bringing his policy which had been for some time pursued; and that by total personal go
in change of system was certainly not meant subversion or demolition, vernment into change or system was a public odium, the descent of the crown to the successor of his Majesty being to express re- mentioned immediately after. His lordship then proceeded :" If gret that he
“a person who admits the wisdom and virtues of his Majesty, has taken an erroneous
“ laments that in the exercise of these he has taken an unfortunate view of any « and erroneous view of the interests of his dominions, I am not question of foreign or doo
« prepared to say that this tends to degrade his Majesty, or mestic policy. “ to alienate the affections of his subjects. I am not prepared to
“ say that this is libellous. But it must be with perfect decency
(6) The libel was published in a age charged as libellous, although newspaper; and it had been allowed disjointed from it by extraneous mata to the defendant to have read in evi- ter, and printed in a different chadence an extract from the same paper racter. connected with the subject of the pass