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PART IV.

In the case last referred to the question of the blasphemous nature of the lectures intended to be delivered arose only inci- CHAPTER II dentally, in dealing with a civil contract; and it is a matter of some doubt whether a criminal prosecution could, with the tolerant views now prevailing, be successfully maintained for the bona fide publication of opinions sincerely and conscientiously entertained, and temperately expressed, though hostile to the doctrines of Christianity. The actual decisions on the subject do not warrant a more confident statement; and the language of the statute 9 & 10 Will. 3, c. 32, which is still in force, hardly warrants even this, as that statute, making no distinction of motive, manner, or occasion, in or on which any person brought up a Christian denies, "by writing, printing, teaching, or advised speaking," the divine authority of the Bible or the truth of Christianity, punishes all such modes of utterance.

The Act 60 Geo. 3 & 1 Geo. 4, c. 9, contained various provisions for securing (by recognisance or bond with sureties) the payment of fines inflicted for the publication of blasphemous and other libels in newspapers; but this Act is now repealed by 32 & 33 Vict. c. 24.

In 1841 Mr. Moxon was indicted for publishing the poems of Shelley, (a) a work described in the indictment as a "scandalous, impious, profane, and malicious libel of and concerning the Christian religion, and of and concerning the Holy Scriptures, and of and concerning Almighty God, in which were contained certain passages charged as blasphemous," the indictment setting out some passages from the poem of Queen Mab and a passage in prose from the notes. Serjeant (afterwards Mr. Justice) Talfourd, himself a poet, addressed the jury, for the defence, in a noble speech, in which he asked whether it could be blasphemy in Mr. Moxon to present to the world, or rather to the calm, the laborious, the patient searchers after wisdom and

(a) 2 Mod. State Trials, 356. The prosecutor in this case was Hetherington, who had, a short time before, been found guilty of publishing certain libels on the Old Testament (see Reg. v. Hetherington, ante, p. 301), and his object in instituting the prosecution against Mr. Moxon is not very clear. His counsel concluded his opening speech by expressing the satisfaction he should feel if the result of the trial were to establish that no publication on religion should be a subject for prosecutions in future (2 Mod. State Trials, 365); but Mr. Moxon's counsel treated the prosecution as one prompted solely by an indiscriminate desire, on the part of the prosecutor, of retaliating on some other person the punishment which he had himself suffered. And Blackburn, J., says of it, "I believe, as everybody knows, that it was a prosecution instituted merely for the purpose of vexation and annoyance: (Reg. v. Hicklin, L. Rep. 3 Q. B. 374; S. C. 37 L. J. 89, M. C.; 18 L. T. N. S. 395, nom. Reg. v. The Recorder of Wolverhampton.)

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PART IV.

beauty, who alone would peruse the volume, the awful CHAPTER IL mistakes, the mighty struggles, the strange depressions, and the imperfect victories of such a spirit as Shelley's, because the picture has some passages of frightful gloom? "In the wise and just dispensations of Providence," said the accomplished advocate, in a passage which I may be excused for citing, "great powers are often found associated with weakness or with sorrow; but when these are not blended with the intellectual greatness they countervail, but merely affect the personal fortunes of their possessors, as when a sanguine temperament leads into vicious excesses, there is no more propriety in unveiling the truth, because it is truth, than in exhibiting the details of some physical disease. But when the greatness of the poet's intellect contains within itself the elements of tumult and disorder, when the appreciation of the genius in all its divine relations and all its human lapses depends on a view of the entire picture, must it be withheld? It is not sinful Elysium, full of lascivious blandishments, but a heaving chaos of mighty elements, that the publisher of the early productions of Shelley unveils. In such a case, the more awful the alienation, the more pregnant with good will be the lesson. Shall this life, fevered with beauty, restless with inspiration, be hidden? or, wanting its first blind but gigantic efforts, be falsely because partially revealed? If to trace back the stream of genius from its greatest and most unearthly breadth to its remotest fountain, is one of the most interesting and instructive objects of philosophic research, shall we, when. we have followed that of Shelley through its majestic windings, beneath the solemn gloom of 'The Cenci,' through the glory-tinged expanses of The Revolt of Islam,' amidst the dream-like haziness of 'Prometheus,' be forbidden to ascend with painful steps its narrowing course to its farthest spring, because black rocks may encircle the spot whence it rushes into day, and demon shapes, frightful but powerless for harm, may gleam and frown on us beside it?" He urged also that the poem of "Queen Mab" was presented with the distinct statement that Shelley himself in mature life departed from its offensive dogmas; that it was accompanied by his own letter in which he expresses his wish for its suppression; that therefore it was not given as containing his deliberate assertions, but only as a feature in the development of his intellectual character. He asked also whether it was not "antidote enough to the poison of a pretended atheism that the poet, who is supposed to-day to deny Deity, finds Deity in all things?"

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Lord Denman, C.J., told the jury that he and they "were bound to take the law as it had been handed down to them. The only question for their consideration was, whether in their opinion the work, which had been made the subject of prosecution, deserved the imputations that were cast upon it by the indictment, and whether the publisher had sent it forth deliberately into the world, knowing its character to be such. The purpose of the passage cited from Queen Mab' was, he thought, to cast reproach and insult upon what in Christian minds were the peculiar objects of veneration; it was not, however, sufficient that mere passages of such an offensive character should exist in a work in order to render the publication of it an act of criminalty; it must appear that no condemnation of such passages appeared in the context. It had been said that the extraordinary poem in question was the production of a mere youth. Were the lines indicted calculated to shock the feelings of any Christian reader? Were their points of offence explained, or was their virus neutralized by any remarks in the margin, by any note of explanation or apology? If not, they were libels on God, and indictable." The jury returned a verdict of guilty; but the prosecutor abandoned all further proceedings on payment of his costs. (a)

A person accused of wickedly and feloniously publishing, vending, and exposing for sale certain blasphemous books containing a denial of the truth and authority of the Holy Scriptures and the Christian religion, and devised, contrived, and intended to asperse, vilify, ridicule, and bring them into contempt, was not allowed in his speech to the jury to quote passages from the Bible for the purpose of justifying his opinion of it.(b) "No animadversions," said the Lord Justice Clerk, "can have the slightest effect in making the court swerve from its duty. We tell you what the law is, that the publication of works tending to vilify the Christian religion is an offence in law; and it is no answer to say that, in your opinion, the passages contained in those works are true, and that the Bible deserves the character ascribed to it. If you can show that the Lord Advocate has mistaken the meaning of these passages,

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(a) 2 Mod. State Trials, 362. Blackburn, J., alluding to this case in Reg. v. Hicklin (L. Rep. 3 Q. B. 374), says, "I hope I may not be understood to agree with what the jury found, that the publication of Queen Mab' was sufficient to make it an indictable offence." For Lord Lyndhurst's view of the prosecution see Parl. Debates in the House of Lords for 13th July, 1857.

(b) Paterson's case (1 Brown 627). See also Robinson's case (il. 643).

PART IV.

CHAPTER II.

PART IV.

CHAPTER II.

How punishable,

Scotland.

that they do not deny the truth of the Bible, that they do not vilify it, that is a point of which the jury will judge." In charging the jury, his Lordship thus stated the law: "The Holy Scriptures and Christian religion are part of the statute law of the land; and whatever vilifies them is therefore an infringement of the law. There can be no controversy in a court of justice as to the merits or demerits of a law. Our duty is to interpret and explain the law as established, while it is yours to apply it. Now the law of Scotland, apart from all questions of Church Establishment, or Church government, has declared that the Holy Scriptures are of supreme authority. It gives every man the right of regulating his faith or not by the standard of the Holy Scriptures, and gives full scope to private judgment, regarding the doctrines contained therein; but it expressly provides that all blasphemies shall be suppressed', and that they who publish opinions 'contrary to the known principles of Christianity,' may be lawfully called to account, and proceeded against by the civil magistrate. This law does not impose upon individuals any obligation as to their belief. It leaves free and independent the right of private belief, but it carefully protects that which was established as part of the law from being brought into contempt."(a)

Blasphemous publications are punishable either by indictment at common law (b) or by criminal information. Persons convicted were formerly compelled to stand in the pillory, (c) besides suffering other punishments. The Act of 56 Geo. 3, c. 138, which abolished the punishment of the pillory in most cases, provides (sect. 2) that the court may in all cases where it was formerly used, pass such sentence of fine or imprisonment, or of both, in lieu of the sentence of pillory, as to it shall seem most proper.

The punishment by banishment was abolished by 11 Geo. 4 & 1 Will. 4, c. 73, s. 1.

The Scotch law is not different from the English law on the subject of blasphemous libels. (d) An Act of 6 Geo. 4, c. 47, after reciting the expediency of making the crime punishable in the same manner as if committed in England, enacted

(a) The prisoner in this case was sentenced to fifteen months' imprisonment, the court telling him that if, after the completion of his punishment, he should again attempt to follow the same trade, either in Scotland or in any other part of Great Britain, there was no extent of punishment by "imprisonment and fine" which it would not be the duty of the court in such a case to award.

(b) Reg. v. Hetherington (5 Jur. 529).

(c) Rex v. Taylor (Vent. 293; 3 Keb. 607), Rex v. Waddington (1 B. & C. 26, Rex v. Carlile (3 B. & Ald. 161).

(d) See the direction given to the jury in Patterson's case, supra.

that any person convicted of blasphemy shall be liable to be punished only() by fine or imprisonment, or both, at the discretion of the court; and (b) that if any person after being so convicted shall offend a second time and be convicted, he may be adjudged, at the discretion of the court, either to suffer the punishment of fine or imprisonment, or both, or to be banished from the United Kingdom, and all other parts of the Sovereign's dominions, for such term of years as the court in which such conviction shall take place shall order; and (e) in case the person so adjudged to be banished shall not depart from the United Kingdom within thirty days after the pronouncing of such sentence, for the purpose of going into banishment, he may be conveyed to such parts out of the dominions of the Sovereign, as the Sovereign, by advice of the Privy Council, may direct. If the person sentenced to be banished, after the end of forty days from the time the sentence has been pronounced, is at large within any part of the United Kingdom, or any other part of the Sovereign's dominions, without some lawful cause, before the expiration of the term for which the offender has been adjudged to be banished, every such offender being so at large and being thereof convicted, shall be transported to such place as the Sovereign shall appoint for any term not exceeding fourteen years. (d) This statute still remains in force with the exception of the provisions as to punishment by banishment, which are repealed by 7 Will. 4 & 1 Vict. c. 5.

PART IV. CHAPTER IL

CHAPTER III.

OBSCENE LIBELS.

courts.

THE jurisdiction of our common law courts in cases of Jurisdiction of publications of an immoral nature, though now unquestioned, was for some time not free from doubt. After the abolition of the Star Chamber, it seems that the Court of King's Bench came to be regarded as the custos morum of the

(a) Before the repeal of the Acts of 1661, c. 21, and 1695, c. 11, by the 53 Geo. 3, c. 160, s. 3, blasphemy was punishable, for the first offence, by public atonement in sackcloth to the parish where the scandal was committed; for the second offence, by payment of a fine of a year's rent of his real estate, and a twentieth part of his personal effects, and by imprisonment till the offender should again make satisfaction to the parish; for the third offence, with death. (c) Sect. 3.

(b) Sect. 2.

(d) Sect. 4.

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