The History Of The Last Trial By Jury For Atheism In England Part 7

These prosecutions are entirely in opposition to the sentiments promulgated by yourselves, as appears from a book given me in gaol called the 'Manual of Devotion.' I amused myself by contracting the profession contained in it with the practice of my opponents. It is published by the 'Society for Promoting Christian Knowledge.' In the 'Discourse concerning Prayer,' it is laid down that the 'second qualification for prayer is charity or love. There is nothing so contrary to the nature of G.o.d, nothing so wide of the true spirit of a Christian, as bitterness and wrath, malice and envy; and therefore it is vain to think that even our prayers can be acceptable to G.o.d, till we have put on, as the elect of G.o.d, bowels of mercy, kindness, humbleness of mind, meekness, long-suffering, forbearing one another, and forgiving one another, as St. Paul commands.' Gentlemen, where are these sentiments evinced in this prosecution?

The 'third qualification--Is faith. If any of you lack wisdom, says St.

James, let him ask of G.o.d, but let him ask in faith.' My prosecutors have asked Mr. Bubb, have had faith in policemen, and confidence only in the 'common law.'

The 'fourth qualification is--That in all things of a temporal concern, we must exercise an entire submission to the will of G.o.d. A good Christian will be sure to leave the issue in G.o.d's hands.' In my case not the will of G.o.d, but the will of bigots was done, and the 'issue'

left in the turnkey's hands.

The 'fifth qualification--Is that the person praying hath a good intention; that he asks for a good end. We must not pray as the revengeful man when he prays for authority, that he may have the more power to effect his evil designs.' What can be more wholly condemnatory of these proceedings than these instructions of the 'Manual of Devotion?'

When the 'Life of Christ,' by Dr. Strauss, appeared in Berlin, contrary to usages in such matters, the Prussian government consulted the clergy to ascertain from them whether it would not be prudent to prohibit this extraordinary production. The celebrated Bishop Neander was commissioned by the ecclesiastical body of Berlin, to peruse the book and to return an answer. Neander did so, and declared in reply, that the work submitted to his examination threatened, it was true, the demolition of all creeds; nevertheless, he requested that full liberty should not be denied to his adversary, in order that full and free discussion might be the only judges between truth and error. And when asked whether it should be prosecuted, said, 'No, I will answer it.'

Mr. Justice Erskine. That work was temperately written.

Mr. Holyoake. Neander did reply to it, and Strauss had the manliness to acknowledge that it had corrected many of his errors. Would that have been done had he been prosecuted? Dr. Strauss's work on the scriptures got him a professor's chair in Germany. In this country it would have made him amenable to the common law, and to one, two, or three years'

imprisonment.

Gentlemen, in the pertinacity of my open reply to Maitland, you may find something objectionable, but I happen to be an admirer of that sentiment expressed by the honest 'Vicar of Wakefield'--'In all human inst.i.tutions a smaller evil is allowed to procure a greater good; as in politics, a province may be given away, to secure a kingdom; in medicine, a limb may be lopt off, to preserve the body. But in religion, the law is written and inflexible, _never_ to do evil.' Then, gentlemen, I ought to be tolerated in the truthfulness of my answer. Milton, in his Prose Works,*

in reference to an incident in his travels, says:--

* Milton's Prose Works, pp. 933-4, 8vo edit. Edited by Fletcher.

'While I was on my way back to Rome, some merchants informed me that the English Jesuits had formed a plot against me, if I returned to Rome, because I had spoken too freely of religion; for it was a rule which I laid down to myself in those places, never to be the first to begin any conversation on religion--but, if any questions were put to me concerning my faith, to declare it without any reserve or fear.'

This is the rule which I myself have followed in this case.

Since his lords.h.i.+p--with more liberality than is customary, and with more philosophy than I expected on matters of religion (on which I hear his lords.h.i.+p thinks very devoutly)--has said, that any religion may be discussed in temperate language, it is not necessary for me to prove, as I should have done, that it would be useless liberty for me to entertain opinions without permission to publish them. The only question is whether, in the expression of these opinions, I used a proper kind of language. I think I have proved that I was far from having any of those 'malicious' feelings the indictment presupposes. Many figures of speech have been used in this court from which my feelings revolted as much as those of any person could from what I said. No allowance is made for this, and too much importance is attached to what is a.s.sumed to be ridicule. A short time ago it was argued, that if the political squibs which are seen in shop windows were permitted to be published, they would bring government into contempt, and you would soon have no government. Their publication has been permitted. Have we no government now? I feel the utility of a government, and no force of ridicule could shake my belief in the importance of good government. So it is with religion. Nothing that is uttered, however contemptuous, can bring it into contempt, if it really is useful and beneficial. We might defy all the wits and caricaturists in the world to bring the problems of Euclid into contempt. No man can bring into contempt that which is essential and true.

The counsel who opened the case did not state whether the indictment was at statute or common law.

Mr. Justice Erskine. Common law.

Mr. Holyoake. Then, gentleman of the jury, I shall draw your attention to that, and I hope I shall be able to explain the law bearing on my case.

Mr. Justice Erskine. The jury must take the law from me. I am responsible for that.

Mr. Holyoake. I know, my lord; but still I may refer to it. A friend of mine consulted the works bearing upon the law of this case.* I have here the results of his labours, and, if I am wrong, your lords.h.i.+p will, in summing up, correct me.

* I was indebted to Mr. J. Homffrey Parry, barrister, for the revision of the argument I employed.

Gentleman of the jury, the common law is a judge-made law. A judge laid down, some years ago, that to say anything against the Christian religion was an indictable offence. Another judge followed him and said the same; and at last it came not to be doubted. If I show there is no law properly made in parliament a.s.sembled, you ought to acquit me.

The offence with which I am charged is an offence at common law. There is no statute which punishes a man simply for denying the existence of G.o.d. There is a statute (9 and 10 Wm. III., c. 32) directed against those who denied the Trinity and who renounced Christianity. But the former part has been repealed in favour of Unitarians, by the 53rd Geo.

III., e. 160; and the words I am charged with having spoken cannot be brought within the latter. There is a statute against profane cursing and swearing (19 Geo. II., c. 21), but it takes no cognisance of this offence. Human beings have also been put to death for witchcraft (33 Hen. VIII., c. 8; and 1 James I., c. 12), under the merciless statutes which were enacted in times of the grossest ignorance and superst.i.tion; but those statutes have been repealed (9 Geo. II., c. 5). This offence, therefore, is an offence against the common law, if it is an offence at all. It is to be found in the recorded decisions of the judges, if it is to be found anywhere; and the punishment for it is in their discretion.

Had it been an offence under a statute, it would have been impossible for me to have denied the authority of the statute; but, as it is an offence at common law, it is quite competent for me to show that the authorities which have been supposed to const.i.tute the offence do not warrant such a construction. Should your lords.h.i.+p even declare that you had no doubt upon the subject, it would still be competent for me to bring before you the decisions of former judges, to argue upon those decisions, and to show, if I could, that there was some mistake or error running throughout the whole of them. Your lords.h.i.+p, I am sure, will admit that judges are fallible, and that a blind, unreasoning submission to them no man should give. As some excuse for presuming to doubt the decision of some of your lords.h.i.+p's predecessors, I shall quote the following pa.s.sage from the preface to Mr. Watkin's treatise on Conveyancing, allowed to be a master-piece of legal sagacity and method.

'I believe,' writes that gentleman, 'it will be found, on examination, that an implicit submission to the a.s.sertions of our predecessors, whatever station those predecessors may have held, has been one of the most certain sources of error, Perhaps there is nothing which has so much shackled the human intellect, nothing which has so greatly promoted whatever is tyrannic, preposterous, and absurd, nothing perhaps which has so much degraded the species in the scale of being as the implicit submission to individual dicta.' And he then goes on in vigorous terms to reprobate the practice of allowing 'authority to shoulder out common sense, or adhering to precedent in defiance of principle.' Upon the principle contained in this pa.s.sage I shall act, in claiming the attention of your lords.h.i.+p, and you, gentlemen of the jury, whilst I examine the authorities for the doctrine which brings the offence with which I am charged within the jurisdiction of the temporal courts. Your lords.h.i.+p will, perhaps, refer to these books.

Mr. Justice Erskine, No need of that. If it is not an offence at common law, this indictment is worth nothing. You can take it before the fifteen judges on a writ of error. I sit here, not to correct the law, but merely to administer it.*

* I have been told by a legal friend of great experience, that at this point I might have taken the judge at his word, and have carried the case before the judges for decision; but I was unacquainted with the forms of law in such cases, and I moreover distrusted the judge.

Mr. Holyoake resumed. In the fourth volume of 'Blackstone's Commentaries,' p. 59, in speaking of offences against G.o.d and religion, that writer says, 'The fourth species of offences, therefore, more immediately against G.o.d and religion, is that of blasphemy against the Almighty, by denying his being or providence, or by contumelious reproaches of our saviour, Christ. Whither also may be referred all profane scoffing at the holy scripture, or exposing it to contempt and ridicule. These are offences punishable at common law by fine and imprisonment, or other infamous corporal punishment; _for Christianity is part of the laws of England_.' Blackstone quotes, in support of the first species, a volume of 'Ventris' Reports,' p. 298; and the second from the second volume of 'Strange's Reports,' p. 834. Mr. Christian, the commentator upon Blackstone, adds, in a note, a pa.s.sage from the 'Year Book' (34 Henry VI.), folio 43.

The earliest case is that from the year book, in the 34th year of Henry VI. (1458). Mr. Christian quotes from it this pa.s.sage--'Scripture est common ley, sur quel toutes manieres de leis sont fondes' (i.e., Scripture is common law, upon which all descriptions of laws are founded). Were this quotation correct, and did the word scripture here mean 'holy scripture,' or what is generally understood by the Bible, then I admit this pa.s.sage would be a good foundation to build up Mr.

Judge Blackstone's law. But it is no such thing. The case in the year book is a case of _quare impedit_, and, in the course of the argument the question arose whether, in a matter of induction to a benefice by the ordinary (i.e., the bishop) the common law would take notice of, or be bound by, the law or practices of the church. Where-. upon, Chief Justice Prisot says--'To such laws, which they of the holy church have in "ancient writing," it becomes us to give credence, for such is common law, upon which all descriptions of laws are founded. And therefore, sir, we are obliged to recognise their law of the holy church--likewise they are obliged to recognise our law. And, sir, if it appears to us now that the bishop has done as an ordinary should do in such a case, then we ought to judge it good--if otherwise, bad.'

In this pa.s.sage, then, there is not one word about scripture in the sense of 'holy scripture.' Judge Prisot says, 'To such laws as the church has in ancien scripture (t. e.9 ancient writing) we ought to give credence.' And what does he mean by 'laws which the church has in ancient writing?' not any laws that are to be found in the Bible, but the canon or ecclesiastical laws by which the temporal concerns of the church are guided. And the reason he uses the phrase 'ancien scripture,'

or ancient writing, is that the laws were not then printed; the only record of them was in writing. Printing had not been introduced into England, and was only just discovered on the continent, the laws therefore of the spiritual and temporal courts were only to be seen in writing. And as though there should be no doubt as to his meaning, he goes on to say, 'And as we are obliged to recognise their laws (that is the ecclesiastical laws, or laws of the spiritual courts), so they are obliged to recognise our laws (that is, the laws of the temporal courts).' It must therefore be evident that this quotation of Mr.

Christian is a perversion or mistake, a judicial forgery or a judicial blunder, and in either case its authority is of no value. It must be dismissed altogether from our minds in considering what the law is upon this point--that is, whether Christianity is or is not a part and parcel of the law of England. Unfortunately, however, we shall find that this case is actually made the substratum of the law. In proving, therefore, that it cannot warrant such a law, surely I prove that at common law, at least to speak against Christianity, is not an offence.

The next case is that in Ventris' Report, vol. 1, p. 293. It is called Taylor's case, and Chief Justice Hale certainly declares explicitly in this case, 'that Christianity is parcel of the laws of England.' But he cites no authority whatever.

In the case a.n.a.lysed from the year book, it is expressly said, that the common law is to be found in 'ancient writings,' and the unsupported dictum of a judge in the middle of the seventeenth century cannot be construed as a part of the ancient writings of the common law. Either the law already existed or it did not. If it did, the question is--where is it? If it did not, Chief Justice Hale could not then make it for the first time; and this case in Ventris' cannot be said to lay down the law. The case in the second volume of Strange is the King v. Woolston.

The defendant had been convicted of writing four blasphemous discourses against the divinity and character of Christ; and upon attempting to move in arrest of judgment, the court declared they would not suffer it to be debated whether to write against Christianity in general was an offence punishable in the temporal courts of common law. And they cited Taylor's case, which has been shown to be an insufficient authority, or rather no authority at all, and the King v. Hale, in the same volume of Strange, p. 416, but which was an indictment under the statute (9 & 10 Wm. HI.) for speaking against the Trinity, and therefore cannot in any way support the common law doctrine.

The first person who called attention to the utter want of authority in the common law for the dictum 'that Christianity was part of the common law,' was Jefferson, the second president of America--himself a profound lawyer, and to his references I am indebted for the foregoing authorities, which, however, have been carefully verified. Mr.

Jefferson, in a letter to Major Cart-wright, to be found in vol. ii., p.

272, of his 'Memoirs,' exposes the mode in which this law was created.

Alluding to the case of Prisot, he says, 'Finch in his first book, c. 3, is the first who afterwards quotes this case. He misstates it thus: "To such laws of the church as have warrant in holy scripture, our law giveth credence," and cites Prisot, mistranslating "ancien scripture"

into holy scripture. This was in 1613, a century and a half after the dictum of Prisot. Wingate, in 1658, erects this false translation into a maxim of the common law, copying the words of Finch, but citing Prisot.

Shephard, t.i.tle "Religion," in 1675, copies the same mistranslation, quoting the year book, finch, and Wingate. Hale expresses it in these words, "Christianity is parcel of the laws of England," but quotes no authority. Wood, 409, ventures still to vary the phrase, and says, "that all blasphemy and prophaneness are offences by the common law," and Blackstone repeats the words of Hale.' In the case of the the King v.

Carlile, decided since Mr. Jefferson wrote this letter, there was no argument as to the common law. The question was as to whether the statute (9 & 10 Wm. III.) had superseded the common law. But the common law itself was not called in question, which I submit it should be, and by a wise example superseded.

But let us see what Christianity is according to common law? We may remark--

1. Its inconsistency.--It calls blasphemy the greatest crime man can commit. Yet in the case of Hetherington v. Moxon, it permits the _respectable_ blasphemer to go free. Blasphemy in guinea volumes it allows, but exhibits the holiest horror at it when in penny pamphlets.

2. Its barbarity, as in Peter Annet's case.--In Michaelmas term, M. 3.

G. 3. Peter Annet was convicted on an information for writing 'a most blasphemous libel,' in weekly papers called the _Free Inquirer_, to which he pleaded guilty; in consideration of which, and of his poverty, of his having confessed his errors in an affidavit, and of his being 74 years old, and some symptoms of wildness that appeared on his inspection in court, the court declared they had mitigated his punishment to the following: To be imprisoned in Newgate for one month; to stand twice in the pillory with a paper on his forehead, inscribed Blasphemy; to be sent to the House of Correction to hard labour for a year; to pay a fine of 6s. 8d., and to find security himself in 100, and two sureties in 50 each for his good behaviour during life.*

3. Its capriciousness.--The common law before the time of Henry VIII.

was one thing, but afterwards it was another. The language which was blasphemy at the first period, was not so in the other. Those expressions which insulted G.o.d before Henry the Eighth was born, did not insult him afterwards. Henry the Eighth's opinion made the difference.

Lord Commissioner White-locke (5 Howell's State Trials, p. 826), in Debate whether James Nayler the quaker should suffer death, remarked, 'I remember a case in our book H. 7, where the bishop committed one to prison for a heretic, and the heresy was denying that tythes were due to the parson. This at that time was a very great heresy.'

4. Its disregard of equal justice.--A British subject would be punished for firing into a Turkish vessel; but he is not punishable for attacking the captain and sailors with Bibles and tracts, which, if they read and believe, will make them apostates from the faith of Mahomet, and blasphemers of the Koran. While on terms of amity with the Sublime Porte, the laws of England restrain us from despoiling them of their property, but not from despoiling them of their religion.**

* Blackstone's Reports, p. 305.

** Vide Freethinker's Information for the People.

5. It debases religion as best set forth.--'Religion (says Miss Martineau) is, in its widest sense, "the tendency of human nature to the infinite;" and its principle is manifested in the pursuit of perfection in any direction whatever. It is in this widest sense that some speculative atheists have been religious men; religious in their efforts after self-perfection; though unable to personify their conception of the infinite. In a somewhat narrower sense, religion is the relation which the highest human sentiments bear towards an infinitely perfect being. There can be no further narrowing than this. Any account of religion which restricts it within the boundaries of any system, which connects it with any mode of belief, which implicates it with hope of reward, or fear of punishment, is low and injurious, and debases religion into superst.i.tion.' How much more is religion degraded that is made the subject of reward and punishment here?

Thus speaks the common law upon these points, and thus, as part of the common law, speaks Christianity. Will you, by a verdict of guilty this day, send forth to the world this card of credentials of the religion of Jesus?

The intention of a libel const.i.tutes its criminality. It is for you, gentlemen, to say whether I knowingly, wickedly, and maliciously offended the law? Malice is necessary to a libel--conscientious words are allowable, '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 dispa.s.sionate discussions of the rect.i.tude and propriety of the established mode of wors.h.i.+p.' 4 Bla. Com. 51; 1 Pmp. 219. And Mr. Starkie, on the subject, says 'that it may not be going too far 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, 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 circ.u.mstances, that the act of the party was malicious, then, since the law has no means of distinguis.h.i.+ng between different degrees of evil tendency, if the matter published contain any such tendency, the publisher becomes amenable to justice.'*

* Starkie on Libel, pp. 496-7.

As to the duty of the jury, I have Lord Chief Justice Abbott's opinion, in his charge to the jury in summing up the evidence against Mr. Joseph Russell at the Warwick Summer a.s.sizes, on Friday, August 13, 1819, for a political libel, being Mr. Hone's 'Parody on the litany.' Mr. Russell argued that as Hone had been acquitted for publis.h.i.+ng it, he also ought to be. 'No one,' says his lords.h.i.+p, 'is more inclined than myself to speak reverently of the decision of juries. But, gentlemen, you cannot, under the sanction of an oath, take the verdict of those juries either directly or indirectly as your guide in the verdict you are called upon to give in this case. Those juries, no doubt, returned their verdicts honestly and conscientiously according to the evidence that was layed before them. What that evidence was you can know nothing of. You are to try the question by your own consciences and by your own reason. They might have been right in their decision, and you should be careful that you are right in yours.'