disprove the same: Provided always, that the truth of the matters charged in the alleged libel complained of by such indictment or information shall in no case be inquired into without such plea of justification: Provided also, that in addition to such plea, it shall be competent to the defendant to plead a plea of not guilty: Provided also, that nothing in this Act contained shall take away or prejudice any defence under the plea of not guilty which it is now competent to the defendant to make under such plea to any action or indictment, or information for defamatory words or libel." Hence there is still a most important distinction between civil and criminal cases on this point. The mere truth is an answer to a civil action, however maliciously and unnecessarily the words were published. But in a criminal case, the defendant has to prove, not only that his assertions are true, but also that it was for the public benefit that they should be published. Moreover, the statute does not apply in cases of blasphemous, obscene, or seditious words. (R. v. Duffy, 9 Ir. L. R. 329; 2 Cox, C. C. 45; Ex parte O'Brien, 12 L. R. Ir. 29; 15 Cox, C. C. 180; R. v. M'Hugh, (1901) 2 Ir. R. 569.) It does not apply, by its express terms, unless there be a special plea of justification. In short, the truth of the matter complained of can only become a defence under the statute, and then only when the statutory conditions are complied with." Wherever Lord Campbell's Act does not apply, the law remains still as it was settled prior to that Act. Hence a magistrate at the preliminary investigation of a charge. of libel, whether under s. 5 of the 6 & 7 Vict. c. 96, or at common law, has no power to receive and perpetuate any evidence of the truth of the matters charged (R. v. Townsend, 4 F. & F. 1089; 10 Cox, C. C. 356; R. v. Sir Robert Carden, 5 Q. B. D. 1; 49 L. J. M. C. 1; 28 W. R. 133; 41 L. T. 504; 14 Cox, C. C. 359); unless the libel appeared in a newspaper, as to which see s. 4 of the Newspaper Libel Act, 1881, post, p. 784. 66 CHAPTER XVII. BLASPHEMOUS WORDS. It is a misdemeanour, punishable by indictment and by criminal information, to speak, or 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 is the crime of blasphemy, and on conviction thereof the blasphemer may be sentenced to fine or imprisonment to any extent, in the discretion of the Court. Formerly he was frequently also sentenced to the pillory or to banishment.* He may also be required to give security for his good behaviour for any reasonable time after he comes out of prison; and can be detained in prison till such sureties be found. [Thomas Emlyn, in 1703, and Richard Carlile, in 1820, were condemned to find sureties for their good behaviour throughout the remainder of their lives.] Also under the 60 Geo. III. & 1 Geo. IV. c. 8, s. 1, the Court may, after conviction, make an order for the seizure of copies of the blasphemous libel in the possession of the *In Scotland up till the year 1813 blasphemy was in certain circumstances a capital offence. The only person executed for blasphemy appears to have been Thomas Aikenhead, a young student just twenty years of age, and the son of a surgeon in Edinburgh; he seems to have been very harshly, if not illegally, treated; no counsel appeared for him his crime consisted in loose talk about Ezra and Mahomet and in crude anticipations of Materialism. He was hanged on January 8th, 1697, buried beneath the gallows, and all his moveables forfeited to the Crown. (See Macaulay's History of England, vol. IV., pp. 781-4; Maclaurin's Crim. Cases, 12; 3 Mer. 382, n.) Two other persons were prosecuted-Kinninmouth and Borthwick-but neither was convicted; in the first case the prosecution dropped, while Borthwick fled the country. (Hume on Crimes, II. 518.) prisoner, or in the possession of any person to his use. The defendant cannot plead a justification: nor can he be permitted at the trial to argue that his blasphemous words are true. (Per Abbott, L.C.J., in Cooke v. Hughes, R. & M. 115.) The intent to shock and insult believers, or to pervert or mislead the ignorant and unwary, is an essential element in the crime. Actus non facit reum, nisi mens sit rea. The existence of such an intent is a question of fact for the jury, and the onus of proving it lies on the prosecution. The best evidence of such an intention is usually to be found in the work itself. If it is full of scurrilous and opprobrious language, if sacred subjects are treated with offensive levity, if indiscriminate abuse is employed instead of argument, then a malicious design to wound the religious feelings of others may be readily inferred. If, however, the author abstains from ribaldry and licentious reproach, a similar design may still perhaps be inferred if it be found. that he has deliberately had resort to sophistical arguments, that he has wilfully misrepresented facts within his knowledge, or has indulged in sneers and sarcasms. against all that is good and noble; for this would tend to show that he did not write from conscientious conviction, but desired to pervert and mislead the ignorant; or at all events that he was criminally indifferent to the distinctions between right and wrong. But where the work is free from all offensive levity, abuse and sophistry, and is in fact the honest and temperate expression of religious opinions conscientiously held and avowed, the author is entitled to be acquitted; for his work is not a blasphemous libel. "It is, indeed, still blasphemy," says Mr. Justice Erskine in Shore v. Wilson, 9 Clark & Fin., at pp. 524-5, "punishable at common law, scoffingly or irreverently to ridicule or impugn the doctrines of the Christian faith; yet any man may, without subjecting himself to any penal consequences, soberly and reverently examine and question the truth of those doctrines which have been assumed as essential to it." Mr. Justice Coleridge said, in the same case, 9 Clark & Fin., at p. 539, "I apprehend that there is nothing unlawful at common law in reverently denying doctrines parcel of Christianity, however fundamental. It would be difficult to draw a line in such matters according to perfect orthodoxy, or to define how far one might depart from it in believing or teaching without offending the law. The only safe and, as it seems to me, practical rule, is that which I have pointed at, and which depends on the sobriety, and reverence, and seriousness with which the teaching or believing, however erroneous, are maintained.” And mere vehemence or even virulence of argument must not be taken as evidence of this intent to injure. Sarcasm and ridicule are fair weapons even in heterodox hands, so long as they do not degenerate into profane scoffing or irreverent levity. "If the decencies of controversy are observed, even the fundamentals of religion may be attacked without a person being guilty of blasphemous libel." (Per Lord Coleridge, C.J., in R. v. Ramsey and Foote, 48 L. T. 739; 15 Cox, C. C. 231; 1 C. & E. 146.) It is not blasphemy, then, to seriously and reverently propound any opinions, however heretical, which are conscientiously entertained by the accused. Honest error is no crime in this country, so long as its advocacy is rational and dispassionate, and does not degenerate into fanatical abuse, or into scurrilous attacks upon individuals. Heresy and blasphemy are entirely distinct and different things. "The law visits not the honest errors, but the malice of mankind." ("Starkie on Libel," 2nd edition, p. 147.) "Every man may fearlessly advance any new doctrines, provided he does so with proper respect to the religion and government of the country." (Per Best, J., in R. v. Burdett, (1820) 4 B. & Ald. 132.) Or, to quote the words of Lord Mansfield in the great case of Evans v. The Chamberlain of London (1767): "The common law of England, which is only common reason or usage, knows of no prosecution for mere opinions." (16 Parl. History, (1813) p. 325; 2 Burn, Eccl. Law, 218.) Illustrations. Taylor was convicted of uttering disgusting and scurrilous language about Jesus Christ in the market-place at Guildford (see post, p. 459). R. v. Taylor, (1676) 1 Ventris, 293; 3 Keble, 607; Tremayne's It is blasphemy to write and publish that Jesus Christ is an impostor, the Christian religion a mere fable, and those who believe in it infidels to God. R. v. Eaton, (1812) 31 Howell's St. Tr. 927. It is blasphemy to write and publish that Jesus Christ was an impostor, a murderer in principle, and a fanatic. The jury found as a fact that the intention of the prisoner was malicious; and the Court on motion refused to arrest the judgment. R. v. Waddington, (1822) 1 B. & C. 26; 1 St. Tr. (N. S.) 1339. A publication which denies the divinity of Jesus Christ is not a blasphemous libel, if written in a reverent and temperate tone, and expressing the conscientious convictions of the author. Shore and others v. Wilson and others, (1842) 9 Clark & F. 355. Edward Elwall was indicted before Mr. Justice Denton for a book alleged to be blasphemous, entitled "A True Testimony for God and for His Sacred Law; being a plain, honest defence of the First Commandment of God against all Trinitarians under Heaven, Thou shalt have no other gods but me." He was acquitted, though he admitted publication. R. v. Elwall, Gloucester Summer Assizes, 1726. To write and publish that the Christian miracles were not to be taken in a literal but in an allegorical sense was held blasphemous in 1729; but there the Court clearly considered that to attack the miracles was to attack Christianity in general, and could not be included amongst "disputes between learned men upon particular controverted points." "I would have it taken notice of," says Lord Raymond, C.J., "that we do not meddle with any differences of opinion, and that we interpose only where the very root of Christianity is struck at." R. v. Woolston, (1729) 2 Str. 834; Fitz. 66; 1 Barnard. 162. To deliver a lecture publicly maintaining that the character of Christ is defective, and his teaching misleading, and that the Bible is no more inspired that any other book, was held blasphemy by the Court of Exchequer in a civil case without any regard to the style of the lecture, or the religious convictions of the lecturer. Cowan v. Milbourn, (1867) L. R. 2 Ex. 230; 36 L. J. Ex. 124; 15 It was held blasphemy to publish or sell Paine's "Age of Reason." 'Age R. v. Richard Curlile, (1819) 3 B. & Ald. 161; 1 Chit. 451. Richard Carlile on his trial read over to the jury the whole of Paine's " of Reason," for selling which he was indicted. After his conviction, his wife published a full, true, and accurate account of his trial, entitled 66 The Mock O.L.S. G G |