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To reproach the Christian religion is to speak in sub

version of the

law.

The Christian

of the law of the land.

now repealed by 53 Geo. 3.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 provisions of the statute were cumulative. (q)

Upon the trial of an information against the defendant for uttering expressions grossly blasphemous, Hale, C. J., observed, that such kind of wicked blasphemous words were not only an offence to God and religion, but a crime against the laws, state, and 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)

In a case where the defendant had been convicted for publishing religion is part several blasphemous libels, in which the miracles of our Saviour were turned into ridicule and contempt, and His life and conversation 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. Williams, 1797. Holt on Libel, 66.

(0) But the delinquent publicly renouncing his error in open court, within four months after the first conviction, is to be discharged for that once from all disabilities.

(p) Barnard. 162. 2 Str. 834. Fitzgib. 64. Rex v. Williams, 1797. Rex

v. Caton, 1812. This statute also re-
lated to persons denying, as therein
mentioned, respecting the Holy Trinity;
but such provisions are repealed by 53
Geo. 3. c. 160.

(q) Rex v. Carlisle, 3 B. & A. 161.
(r) Rex v. Taylor, Vent. 293. 3 Keb.

607.

(a) Rex v. Waddington, 1 B. & C. 26.

CHAP. XXIV.]

the Christian Religion.

But though to Christianity in write against general is an offence atcommon law, the meddle with differences of opinion upon

court will not

controverted

points.

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 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 a 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, 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 punishjudgment of the Court of King's Bench was pronounced upon a person convicted of having published a very impious and blasphemous libel called Paine's Age of Reason. (t) Ashhurst, J., 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)

ment is one of

the principal sanctions of

the law.

allowable.

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 discussions are 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

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(r) Rex v. Woolston, Barnard. 162.
2 Sir. 834. Fitzgib. 64.

(s) Rex v. Woolston, Fitzgib. 66.
(1) This libel was of the worst kind,
attacking the truth of the Old and New
Testaments; arguing that there was no
genuine revelation of the will of God
existing in the world; aud that reason
was the only true faith which laid any

obligations on the conduct of man-
kind. In other respects also it ridi-
culed and vilified the prophets, our
Saviour, His disciples, and the Sacred
Scriptures.

(u) Rex v. Williams, 1797. Holt on
Libel, 69, note (e).
(w) 4 Bla. Com. 51.

Ofpublications against morality.

Oral communications.

Ofpublications against the constitution.

"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 subject is treated, or from other circumstances, that the act of the party was malicious, then, since the law has no means of distingishing between different degrees of evil tendency, if the matter published contain any such tendency, the publisher becomes amenable to justice."(x)

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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)

II. 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; (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.

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; the case of the performance of an obscene play. (d)

III. 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 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

(x) Starkie on Libel, 496, 497.
(y) Starkie on Libel, 493.

(z) Sir Ch. Sedley's case, 1663. Keb.
2 Str. 790. Sid. 168.
(a) Holt on Libel, 73.

720.

(b) Rex v. Read, 11 Mod. 142. 1 Hawk. P. C. c. 73. s. 9.

(c) Rex v. Curl, 2 Str. 788. Rex v. Wilks, 4 Burr. 2527.

(d) Starkie on Libel 504. In Rex v. Curl, 2 Str. 790. it was stated that there had been many prosecutions against the players for obscene plays, but that they had interest enough to get the proceedings stayed before judgment.

(e) Holt on Lib. 86.

contrary to the laws of God. (ƒ) 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)

tions against the King.

IV. Though a different construction may have prevailed in Of publicamore 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 fine and imprisonment, or other corporal punishment. (i) Though words may expound an overt act, and shew with what intent it was done. () 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. (7) 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 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. (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.

bert and

The defendant was charged with having published a libel to the Rex v. Lamfollowing tenor and effect: "What a crowd of blessings rush Perry. 66 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

(f) 2 Roll. Abr. 78.

(g) Rex v. Harrison, 1677. 3 Keb. 841. Vent. 324. And a treatise upon hereditary right was holden to be a libel, though it contained no reflection upon any part of the then government, Reg. v. Bedford 1711. 2 Str. 789. Gilb. 297.

(h) Rex v. Nutt, 1754. Dig. L. L. 126. and see Dr. Shebbeare's case, and Rex v. Paine, Holt on Lib. 88, 89. and Starkie on Lib. 508.

(i) 1 East. P. C. c. 2. s. 55. p. 117. (k) Crohagan's case, Cro. Car. 332.

(1) 4 Blac. Com. 123.

(m) 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 Lib. 346.

(n) 6 Anne, c. 7.; and see other statutes which were passed for the purpose of guarding the King's character and title, cited in Starkie on Lib. 520, 521.

It is not libellous for a writer who allows

the sovereign

to be solicitous for the

welfare of his subjects, and who has no

intention of calumniating him, or of bringing his personal government into public odium, to express re

gret that he has taken an

erroneous

view of any question of foreign or domestic policy.

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"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 of these he has taken an unfortunate "and erroneous view of the interests of his dominions, I am not prepared to say that this tends to degrade his Majesty, or "to alienate the affections of his subjects. I am not prepared to 66 say that this is libellous. But it must be with perfect decency "and respect, and without any imputation of bad motives. Go 66 one step further, and say or insinuate that his Majesty acts "from any partial or corrupt view, or with an intention to favour or oppress any individual or class of men, and it would become "most libellous." Upon the second sentence, after stating that it was more equivocal, and telling the jury that they must determine what was the fair import of the words employed, not in the more lenient or severe sense, but in the sense fairly belonging to them, and which they were intended to convey, Lord Ellenborough proceeded, "Now do these words mean, that his Majesty "is actuated by improper motives, or that his suceessor may "render himself nobly popular by taking a more lively interest in "the welfare of his subjects? Such sentiments, as it would be "most mischievous, so it would be most criminal to propagate. "But if the passage only means that his Majesty, during his "reign, or any length of time, may have taken an imperfect view "of the interests of the country, either respecting our foreign re"lations, or the system of our internal policy; if it imputes "nothing but honest error, without moral blame, I am not pre66 pared to say that it is a libel." And again towards the conclusion of his address his lordship said, "The question of intention "is for your consideration. You will not distort the words, but give them their application and meaning as they impress your "minds. What appears to me most material is the substantive paragraph itself; (0) and if you consider it as meant to repre"sent that the reign of his Majesty is the only thing interposed "between the subjects of this country and the possession of great "blessings which are likely to be enjoyed in the reign of his successor, and thus to render his Majesty's administration of his 66 government odious, it is a calumnious paragraph, and to be "dealt with as a libel. If on the contrary you do not see that it means distinctly, according to your reasoning, to impute any purposed mal-administration to his Majesty, or those acting

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(0) The libel was published in a newspaper; and it had been allowed to the defendant to have read in evidence an extract from the same paper connected with the subject of the pass

age charged as libellous, although disjointed from it by extraneous matter, and printed in a different character.

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