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Starkie with extreme respect. He goes so far as to say, "If ever the task of law-making could be safely left in the hands of any man, it might have been in his." I do not agree in this opinion. Mr. Starkie's writings appear to me to be heavy, awkward, and most obscure; and in particular he seems to me to have been unaware of the importance of definite language in relation to legal subjects. He always prefers two words to one, and never distinguishes between them. The phrases "firmest and most stable foundations," "absurdity and folly of an ignorant man," "professes to teach and enlighten," "partial and limited mischief," "free and unfettered minds," occur in seven lines. If all the words italicised were struck out the sense would not be varied; and surely the whole passage is only an exceedingly tedious way of saying that men ought not to be punished for mistakes into which they ignorantly fall in theological speculation. This, however, is merely a speculation as to what ought to be the law, and cannot even claim the character of a statement of an actually existing rule. The only part of the passage which even professes to lay down a legal rule or principle is that which defines what he characteristically calls "the criterion and test of guilt." He states it twice over. First he says "a wilful intention to pervert, insult, and mislead others by means of licentious and contumelious abuse applied to sacred subjects, or by wilful misrepresentations or artful sophistry calculated to mislead the ignorant and unwary, is the criterion and test of guilt." He adds: "A malicious and mischievous intention, or what is equivalent to such an intention, in law as well as morals, a state of apathy and indifference to the interests of society, is the broad boundary between right and wrong." How so great a master of style as Lord Coleridge can admire this flabby verbiage I cannot understand. But, style apart, what does the passage mean? The "test and criterion" stated in the first passage differs widely from "the broad boundary between right and wrong" referred to in the second. A wilful intention to mislead the ignorant (a) by licentious abuse, or (b) by wilful misrepresentation, or (c) by artful sophistry applied to sacred subjects, is a much narrower definition than the one which follows, which seems to include irreligious matter published with (a) any malicious intention, or (b) in a state of apathy to the interests of society, in respect, I suppose, to the matter treated of.
If the first test is applied no one is a criminal unless he is also a hypocrite. There must be a "wilful intention to mislead the ignorant," and that intention must be carried into effect either by licentious abuse, or by wilful misrepresentation, or by artful sophistry. The writer must say to himself, I know that the Christian religion is true, but I will try by abuse or by sophistry, which I know to be such, to persuade the ignorant that it is not true. To me this "test or criterion of guilt" appears absurd in itself. Nobody ever could
be convicted if it was applied fairly. The one question for a jury would be whether the author really meant what he said. I may observe that if this "test or criterion" is the true one, it is not the one which Lord Coleridge adopts. Not a word in it has reference even indirectly to the decencies of controversy. An ignorant man is likely to be coarse, but if his good faith is the only question to be considered, it is difficult to see how the question of style affects the
The "broad boundary between right and wrong" (which I suppose means lawful and unlawful) is as unsatisfactory as the "criterion and test of guilt." It is said to be "a malicious and mischievous intention," or "apathy or indifference to the interests of society." The intention of every writer in common cases is to convince his readers of the views which he advocates, and the question whether this intention is mischievous or not must depend on the view which the law takes of the matter published. If the law regards the subversion of Christianity as mischievous, an intention to subvert it must be a mischievous intention. As to the word "malicious," it can mean no more in this connection than intentionally and without justification or excuse. A man who wilfully publishes matter regarded by the law as mischievous publishes it maliciously unless he can produce some special excuse for its publication, as, for instance, that he published it as part of a work intended to refute it, or merely by way of history. To say, therefore, that a mischievous intention is the boundary between right and wrong is trifling, unless we are told what intentions are mischievous, and in particular whether the law regards an intention to subvert Christianity as mischievous. As for "apathy and indifference to the interests of society," I do not understand how that expression can be regarded as practically identical in meaning with "mischievous intention," unless Mr. Starkie fell (as I believe he did) into the common and shallow confusion between intention and motive. No doubt if by "malicious intention" he meant "bad motives," he was consistent in putting apathy to public interest in the same category. If this view is correct, Mr. Starkie ought to have said, "You may attack Christianity in good faith and upon creditable motives, but not from bad motives or without a good motive." If this was his meaning he might have expressed it plainly with perfect case, but it is obvious to me that he was unwilling or afraid to admit that possibility of sincere and creditable disbelief of Christianity. The whole tone of the passage is that the unbeliever is a poor, vulgar, ignorant wretch, whom it may be well to treat with contemptuous lenity as a rule, but whom you can always punish if he makes himself offensive by imputing to him bad motives, a malicious intention, or indifference to the public interests. This is, however, a way of treating the subject which is wholly undignified, and destitute of that
manly simplicity which ought to be the characteristic of the law. There is no reason why the law should not be distinct. Lord Coleridge's view is perfectly simple and straightforward. The same, I think, may be said of my own theory; but Mr. Starkie's doctrine appears to me to be as indistinct and disingenuous as his style is obscure and his language embarrassed. There is absolutely no authority whatever for the view which he puts forward, and he cites none. When carefully examined it involves the, to me, absurd conclusion that the criminality of an act depends on the motives of the agent as distinguished from his intention. Mr. Starkie's view is also opposed to every one of the cases referred to, and to many more which might be cited. I should not have referred at such length to Mr. Starkie's view but for the importance which Lord Coleridge's commendation gives to it.
In concluding this part of my observations on this case I ought to make two remarks, each of which makes against the conclusion which I have reached. First, it may be said that this language of Mr. Starkie resembles in a way the sort of language which used to be employed in reference to political libels, and which led in part to the Libel Act of 1792, and to the great change in the law which has followed upon it. This is true, but it seems to me much better to admit the defects of the law and remove them by direct means than to smooth them away by fallacies like Mr. Starkie's and incorrect eloquence like Lord Erskine's.1 The second remark is that it is certainly true that no case can be produced in which a man has been convicted of a blasphemous libel merely for a perfectly decent denial of the truth of Christianity. The truth, I think, is that the law is as I have stated it, but that it has been put in force only in cases where special offence has been given by coarseness or ridicule, or in some instances (as in that of the publishers of Paine's Age of Reason) by the union of vigorous argument with occasional roughness and vulgarity of expression.
The result of this examination of the authorities appears to me to be that to this day Blackstone's definition of blasphemy must be taken to be true; and if this is the case, it follows that a large part of the most serious and most important literature of the day is illegal -that, for instance, every bookseller who sells, every one who lends to his friend, a copy of Comte's Positive Philosophy, or of Renan's Vie de Jésus, commits a crime punishable with fine and imprisonment. It may be said that so revolting a consequence cannot be true; but, unfortunately, this is not the case. I suppose no one will, or indeed can, deny that if any person educated as a Christian, or having ever made profession of the Christian religion, denied that the Bible was of divine authority, even by word of mouth, he would incur the penalties of the 9 & 10 Will. III. c. 32. I will take
(1) As to this, see my History of the Criminal Law.
a particular instance by way of illustration of this. The late Mr. Greg was not only a distinguished author, but an eminent and useful member of the Civil Service. I suppose he was educated as a Christian, and no one could have a stronger sympathy with the moral side of Christianity. In every one of his works the historical truth of the Christian history is denied; and so is the divine authority of the Old and New Testament. If he had been convicted of publishing these opinions, or even of expressing them to a friend in private conversation, his appointment would have become void, and he would have been "adjudged incapable and disabled in law to hold any office or employment whatever:" in a word, he would have lost his income and his profession. Upon a second conviction, he must have been imprisoned for three years, and incapacitated, amongst other things, to sue or accept any legacy. About this there neither is, nor can be, any question whatever. Law may grow as much as it pleases, but the statute is as valid as on the day when it was passed; and how can it be said that whilst that statute is in full force it must be supposed-first, that the common law never was so inhuman as to treat the profession of atheism as a crime, and next, that if it was, it must be taken to have outgrown its cruelty.
No one can dislike the law as I believe it to be more profoundly than I do; no one can be more firmly convinced of its utter unfitness for these times-if, indeed, it was ever fit for any times. But because I so thoroughly dislike it, I prefer stating it in its natural naked deformity to explaining it away in such a manner as to prolong its existence and give it an air of plausibility and humanity.
Let us suppose for a moment that it were established by law that decent and serious attacks on Christianity are permissible, but that the "decencies of controversy " must be observed, what would be the consequence? First, such a law would never work; and Foote's case proves it. Verdicts by juries have formally no binding force; but practically such a verdict as the one given in Foote's case makes a precedent. If the disgusting tirades, half indecency, half slang, and the disgraceful caricatures, which were merely foul brutalities of the grossest kind, were not violations of the decencies of controversy, what could be? In such cases the following argument will always prevail with juries, more or less consciously. If you allow coarse and vulgar people to discuss these subjects freely, they must and will discuss them coarsely You cannot really distinguish between substance and style. You must either forbid or permit all attacks on Christianity. You cannot in practice send a man to gaol for not writing like a scholar and a gentleman when he is neither one nor the other, and when he is writing on a subject which excites him strongly. As for gentlemen and scholars, this dilemma arises. Either the most bitter and effective of all attacks on the Christian religion must go altogether unpunished, or the law
must be committed to a hopeless conflict with antagonists who would evade any attempt to convict them. Any one who has the least familiarity, for instance, with the writings of Voltaire, will appreciate the weight of this. Take, for instance, the play called David. It constitutes, perhaps, the bitterest attack on David's character ever devised by the wit of man, but the effect is produced almost exclusively by the juxtaposition, with hardly any alteration, of a number of texts from different parts of David's history. It would be a practical impossibility to charge a jury in such a case, so as to embody Lord Coleridge's view of the law. The judge would have to say, It is lawful to say that David was a murderer, an adulterer, a treacherous tyrant who passed his last moments in giving directions for assassinations; but you must observe the decencies of controversy. You must not arrange your facts in such a way as to mix ridicule with indignation, or to convey too striking a contrast between the solemn character of the documents from which the extracts are made and the nature of the extracts themselves and of the facts which they relate. How could a jury possibly draw lines so refined? Practically the result would be what it always has been. No such cases would ever be tried; and the result is that so long as the law is what it is, it will always afford an example of that unequal justice which is much the same as injustice. It will be a law which may now and then hit the weak, but which the strong will always evade.
But suppose this difficulty is got out of the way, a greater difficulty remains behind. If the protection of religious sentiment from rough insults is the object in view, what religious sentiment is to be protected? So long as the Church of England occupies its present position the question may in a way be evaded, but if all religious communities were put on one footing, all their creeds must be protected from denunciation or ridicule. The Protestant must not ridicule the Roman Catholic. No one must call Mahomet an impostor. Such a burst of denunciation as Wesley's famous "appeal to all the devils of hell" against the Calvinists would subject him to fine and imprisonThe same fate would await those who ventured to laugh at Auguste Comte's strange parody of Popery. If any modern missionary should address the worshippers of Kali as Elijah addressed the prophets of Baal the law would be violated. In short, any energetic, vigorous denunciation of the weak side of any religious system would be criminal. Even if it were possible, would it be wise to do. this? Ought the law to impose on all creeds an eternal uti possidetis? If not, have religious or political changes ever been made by calm and moderate language? Was any form of Christianity ever substituted either for paganism or any other form of Christianity without heat, exaggeration, and fierce invective? To give a single instance out of a million, look at the attacks which Augustine makes upon