government and society. It was no doubt argued on behalf of Taylor, as it was in the earlier case of Atwood, that the offence was punishable only in the spiritual Court. But "Hale said 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 this Court; for to say Religion is a cheat is to dissolve all those obligations whereby the civil societies are preserved; and Christianity is parcel of the laws of England, and therefore to reproach the Christian religion is to speak in subversion of the law." (1 Ventris, 293.) Or, as the judgment is more briefly given in the report in 3 Keble, at p. 607 :"Hale, C.J. These words, though of ecclesiastical cognizance, yet that Religion is a cheat,' tends to dissolution of all government, and therefore punishable here, and so of contumelious reproaches. of God or the Religion established."

:

When we consider the date at which this judgment was delivered (1676), and remember how mighty a part religious fanaticism had played in the social disturbances of the earlier part of the century, it cannot, I think, be said that the decision in Taylor's Case was wrong either in fact or in law. The concluding sentence, as reported in Ventris, is undoubtedly too wide. It should have been limited (and probably was by the Chief Justice) to "such kind of blasphemous. words" as the prisoner was charged with uttering. The earlier part of the judgment is expressly so limited.

Yet the dictum at the end of the judgment of Hale, C.J., in Ventris' Report, has constantly been misconstrued into a general and abstract. proposition of law, as though the Chief Justice had said, in syllogistic form,

"To disparage any part of the law of England is a crime. "Christianity is a part of the law of England.

"Therefore to disparage Christianity is a crime.”

But Hale, C.J., would himself have been the first to deny the major premiss. "For," as the Commissioners on Criminal Law remarked in their Sixth Report (May 3rd, 1841, p. 83): "It is not. criminal to speak or write either against the common law of England generally, or against particular portions of it, provided it be not done in such a manner as to endanger the public peace by exciting forcible resistance." See also Jefferson's Letter to Major Cartwright, published in Cartwright's Life and Correspondence. It is a fact, no doubt, that Christianity is the religion of the church which is by law established in this land; but it does not follow that to attack Christianity in peaceable and temperate language is or ever was a

crime. What the Court intended to decide in Taylor's Case was simply this" These words are not only a sin; they are also a crime. They are punishable in a temporal Court: for they tend to subvert the established order of things, of which Christianity is a part, and are therefore dangerous to the State. They are in fact seditious." And as though to make the grounds of their decision clear beyond all doubt the Court condemned Taylor, as part of his punishment, to stand in the pillory, both at Westminster Palaceyard and also at Guildford, where he spoke the words, with a paper fixed to his head with these words written on it in large letters :"For Blasphemous Words tending to the Subversion of all Government." (Tremayne, 226; 3 Keble, 621.)

This, then, is the first stage in the development of our law of libel. The State steps in to suppress harangues which endanger the peace and good order of society. The substance or matter of the harangue is comparatively immaterial; the "secular arm" is only concerned with its political consequences.

To one charge, therefore, which has been brought against our law as to blasphemy, it is not amenable, at all events in this its earliest form. It does not "take the Deity under its protection." It does not attempt to "avenge the insult done to God." The offender is punished for his offence against his fellow-men, not for his offence against God. No judge and jury ever tried a man for a sin that was not also a crime. As Erskine, J., said, in sentencing Holyoake in 1842: "The arm of the law is not stretched out to protect the character of the Almighty; we do not assume to be the protectors of our God, but to protect the people from such indecent language." Very similar words were spoken by Mr. Justice Ashurst in passing sentence upon Williams, who was tried in 1797 for publishing Paine's "Age of Reason": "Although the Almighty does not stand in need of the feeble aid of mortals to vindicate His honour and law, it is, nevertheless, fit that Courts of judicature should show their abhorrence and detestation of people capable of sending into the world such infamous and wicked books. Indeed, all offences of this kind are not only offences to God, but crimes against the law of the land, and are punishable as such, inasmuch as they tend to destroy those obligations whereby civil society is bound together. And it is upon this ground that the Christian religion constitutes part of the law of England." (26 Howell's State Trials, p. 714.)

So, in 1838, Alderson, B., told the jury, in Gathercole's Case, 2 Lewin C. C. at p. 254, that "a person may, without being liable to

prosecution for it, attack any sect of the Christian religion, save the established religion of the country; and the only reason why the latter is in a different situation from the others, is because it is the form established by law, and is therefore a part of the constitution of the country. In like manner and for the same reason any general attack upon Christianity is the subject of criminal prosecution, because Christianity is the established religion of the country." And he directed the jury to acquit the prisoner if they thought the libel "was merely an attack upon the Roman Catholic Church" (see ante, p. 429). This ruling, while it clearly states the grounds on which the law against blasphemy was supported, shows with equal clearness how one-sided was its operation.

II.

But with the eighteenth century comes a new development in this branch of the law. In the case of R. v. Woolston, (1729) Fitzg. 64; 1 Barnard. 162, 266; 2 Str. 832, the Court of King's Bench, while professing to follow R. v. Taylor, greatly extended the principle of that decision, making criminal liability depend on the heretical character of the opinions expressed. Woolston was a Fellow of Sidney College, Cambridge, who had published six "Discourses on the Miracles of our Saviour," urging that they were not to be taken literally, but allegorically or mystically. His arguments, which were conveyed in most forcible language, gave great offence to the bishops, and Woolston was prosecuted and found guilty. The indictment against him contained an express allegation that these discourses were published "with an intent to vilify and subvert the Christian religion" (see the report in Fitzgibbon); hence the verdict of the jury amounted to a finding (in my opinion erroneous) that such was Woolston's intent. His counsel, Dr. Worley, moved in arrest of judgment that these discourses did not amount to a libel upon Christianity, since the Scriptures were not denied; that the offence was of ecclesiastical cognizance: that the defendant should have been proceeded against upon the stat. 9 & 10 Will. III. c. 32; and he was prepared to go further and argue that even though the book was a libel upon Christianity, yet the common law had not cognizance of such an offence, when he was stopped by the Court, Raymond, C.J., declaring on the authority of Taylor's Case (1 Ventris, 293; 3 Keble, 607), that "Christianity in general is parcel of the common law of England, and, therefore, to be protected by it. Now whatever strikes at the very root of Christianity

tends manifestly to a dissolution of the civil government. So that to say an attempt to subvert the established religion is not punishable by those laws upon which it is established is an absurdity. I would have it taken notice of that we do not meddle with any differences in opinion, and that we interpose only where the very root of Christianity itself is struck at, as it plainly is by this allegorical scheme, the New Testament, and the whole relation of the life and miracles of Christ being denied; and who can find this allegory?"

Similarly, in 1708, when a man called Read was indicted for publishing an obscene libel, Chief Justice Holt expressed a strong opinion that such a publication was a purely ecclesiastical offence, not punishable in the temporal Courts. (Fortescue, 98; 11 Mod. 142.) But afterwards in Curl's Case (1727: 1 Barnard. 29; 2 Str. 788), the judgment of Hale, C.J., in Taylor's Case was cited, and the Court of King's Bench decided that an obscene libel was "punishable at common law, as an offence against the peace, intending to weaken the bonds of civil society, virtue, or morality;" the Chief Justice giving his judgment somewhat guardedly: "If it reflects on religion, virtue, or morality, if it tends to disturb the civil order of society, I think it is a temporal offence" (2 Str. 790).

The same law was laid down in 1716 by Hawkins, in his "Pleas of the Crown," Book I. c. 5:-" Offences of this nature, because they tend to subvert all religion and morality, which are the foundation of government, are punishable by the temporal judges with fine and imprisonment." So in summing up to the jury in the Irish case of R. v. Father Petcherini, (1855) (7 Cox, C. C. at p. 84), Greene, B., told them that there could be no doubt that the act complained of-burning a Bible in public-was "one of grave and serious nature, and amounts by the law of the land to a criminal offence. It has been truly stated to you that the Christian religion is part and parcel of the law of this land. Any publication or any conduct tending to bring Christianity or the Christian religion into disrespect, or expose it to hatred or contempt, is not only committing an offence against the majesty of God, but is in violation of the common law of the land. Among the ways in which that offence may be committed is by exposing the Word of God, or any part of it, to obloquy or hatred. The highest authorities have laid down the law in that way, both ancient and modern." And the decision in R. v. Woolston was followed again in the nineteenth century in a civil case, Cowan v. Milbourn, (1867) L. R. 2 Ex. 230; 36 L. J. Ex. 124; 15 W. R. 750; 16 L. T. 290, in

which the Court of Exchequer decided that the defendant was justified in refusing to carry out a contract to let certain rooms, because the plaintiff proposed to deliver in them lectures, the titles of two of which were advertised as follows:-"The Character and Teachings of Christ; the former defective, the latter misleading; "The Bible shown to be no more inspired than any other book.” The action was tried in the Passage Court at Liverpool, and the Recorder directed the verdict to be entered for the defendant, but gave the plaintiff leave to move the Court of Exchequer to enter the verdict for him, the damages being contingently assessed at 10l. on each count. The plaintiff accordingly moved ex parte for a rule nisi in pursuance of the above leave. The lectures never were delivered, and the propositions intended to be maintained in them could hardly have been expressed on the placards in less offensive language. Yet Kelly, C.B., held that it was clear from the advertisements that the lecturer was going to attack Christianity in general, and that to do this publicly was clearly blasphemy at common law. Baron Bramwell, on the other hand, relied on the statute 9 & 10 Will. III. c. 32, s. 1, the Recorder having elicited from the plaintiff at the trial, as appears from the report in the Law Times, that he had been educated in the Christian religion. But at the end of his judgment the learned Baron seems to abandon this ground and to admit that possibly the intended lectures were not positively criminal, in the sense of being indictable, while maintaining that they were still unlawful as being contra bonos mores. This, no doubt, is a solid distinction in many cases; but with all respect I venture to doubt if there can be such a distinction in the case of alleged blasphemy. Either the words are criminal or they are innocent. The right of free speech applies the instant the veto of the law is removed: there can be no tertium quid, no debatable ground of language not criminal, yet reprobated by the law.

The learned Baron also remarked during the argument (16 L. T. 291), "I have heard it said by a learned judge that blasphemy is more in the manner and spirit of treating the subject than in the actual matter itself." And Baron Martin's judgment was as follows:-"I am quite of the same opinion. I protest against the notion that this is any punishment of the persons advocating these opinions. It is merely the case of the owner of property exercising his rights over its use." Hence it cannot be said that either of these learned Barons concurred in the law laid down by the Lord Chief Baron. And the case is in other respects unsatisfactory as