be found substantially true. To illustrate the matter from other subjects-suppose that heresy were a crime, who would ever think of empannelling a jury of clergymen to try an accused person? They would infallibly determine, not according to what was in fact the doctrine of the Church of England, but according to their own view of what was theologically true. Suppose that some point of law had excited warm and prolonged controversy, who would refer the question of its legality to a jury of lawyers? No people in the world knew more of the laws of England than Lord Mansfield and Mr. Fearne, yet there were no two men who were so little entitled to act as impartial judges on the question, Whether or not by the Law of England, the devise in the case of Perrin v. Blake gave the devisee a fee-simple or merely an estate for life? A well-known instance of this may be found in the late case of Reg. v. Millis, in which the House of Lords, in their judicial capacity, were equally divided upon the question, Whether or not at Common Law marriage could be contracted by verba de præsenti without the presence and benediction of a priest in orders? This was in one sense as much a question of fact as any question whatever; but it is impossible to read the judgments of the law lords without seeing how deeply their opinions were influenced by considerations, which may very properly be regarded in the exercise of that quasi-legislative power which is exercised by the judges when they lay down the law, but which would be entirely misplaced in the deliberations of a jury. If the question of fact-considered barely as a question of fact, were left to a jury of intelligent mendid the Common Law of England, ay or no, make it a condition of the validity of a marriage that it should be celebrated by a priest? I think they would have said, our minds are in great doubt; and if the question of guilty or not guilty had depended on that question, I think they both ought to have given, and would have given, the prisoner the benefit of that doubt, just as they would very probably take the same course if it appeared extremely doubtful whether or not a man had committed a murder. In conclusion, I may allude to the extreme difficulty of settling how the experts (whatever might be their functions) should be named. If the court had to name them, the fundamental principle of English criminal justice, that the court is neuter, and that the crown and the prisoner must each manage their own case, would be given up. If the parties named them they would never agree, and thus their dicta would become after all mere matter of evidence for the jury. For all these reasons I am strongly of opinion that the most ancient and most popular institution in the country should be let alone. I should be sorry to be supposed to be blind to the imperfections of our present system. They appear to me to admit of a very easy remedy. If special juries could be had in criminal as well as in civil cases, and if the sheriffs had the command of some small amount of funds to enable them to subpoena witnesses and engage attorneys and counsel for prisoners when poverty prevents them from taking those steps, I think our system of trial by jury would be the most perfect that could be as it is now the best that has been-devised for the trial of the most delicate and complicated cases which could be made the subject of criminal proceedings. 250 XV.-ON LIBERTY OF OPINION, IN RELATION TO [Read 21st November, 1859.] I PROPOSE to consider whether our laws against blasphemy By the law of England, it is an indictable offence to utter or declare publicly such matters or sentiments as the follow(a) The King ing :-To say, e.g. as in one case (a), that "Jesus Christ was an ton, 1 B. & impostor and a murderer," or that he was a "fanatic;" to say, as in another (b), that "Jesus Christ was a bastard and religion . Wadding C., 26. (b) Taylor's case, 1 Ventris, 293. (c) The King Fitzgib., 64. v. Hall, Str., a cheat;" to declare, as in a third (c), "the whole relation of Woolston, the life and miracles of Christ, in the New Testament, is but (d) The King an allegory." To deride the Trinity, as in another instance (d), 416. has been held to be and is a punishable libel. Again to say that the Scriptures are fables, or that one prefers Mahomet to Jesus, and hopes to see Christianity extirpated, is a criminal (e) Alken- offence, as was held in another case (e). And so, lastly, the pubMer., 382, N. lication of Paine's " Age of Reason," the contents of which (#) The King are too well and too painfully known, was held (ƒ) to be a blasB. & Ald., phemous libel, and was punished accordingly. head's case, 3 v. Carlile, 3 161, 167. The King v. Williams, 26 In all these cases, I believe I am right in saying, malice is Howell State an assumed legal ingredient, and this malice consists in the intent to vilify and subvert the Christian religion. Trials, 6:4. The legal denomination of this offence is blasphemy. This blasphemy has always been and still is punishable by the com (g) Per Lord Mer., 407, mon law of the realm (g). It is in certain cases also still pun- Eldon, 3 ishable under the express provisions of a statute of the reign. of Will. III, which, however, except as furnishing perhaps a statutory indication of what religious doctrines the law does not allow to be reviled, is seldom or never called into operation. Besides this offence of blasphemy, there were formerly certain others known as heresy and nonconformity, not punishable (as it seems) by the common law, but under particular acts of parliament, which acts, in later times, were considered repugnant to the principles of true religious liberty, and were accordingly repealed. There are not now any such offences as heresy and nonconformity punishable by the ordinary temporal or civil courts. We shall presently have occasion to advert more particularly to the precise nature of the difference (legal as well as social) between blasphemy and heresy, as without this we cannot form a judgment upon the character of the existing law on the subject of blasphemy. But it is of the utmost importance to the general question of liberty of opinion, and the attitude of our laws in reference to it, to bear in mind, that persons are not now indictable for heresy. In recent discussions upon this subject, the publication of heretical opinions, and the publication of blasphemous libels, have been confounded. It has been said, that there are laws in existence which profess to punish opinion as suchfair and honest opinion. It has been said, that these laws are daily violated with impunity by both high and low; and it has been exultingly proclaimed that no one dare now put in force these laws except, it may be, in some remote part of the country, into which the ordinary sentiment and sense of the people but feebly penetrate. If this were a true representation of the actual state of the law on this subject, we should be under a twofold obligation of protesting against it:—first, because the existence of a law merely to be violated, is of itself an incalculable public evil; and next, because even according to the most temperate and reasonable view of religious liberty, the law, in its very nature, would be unjustifiable and wrong, as attempting to suppress the mere decent expression of opinion. (a) Ventris, vol. 1, 293. (b) Fitzgib., 65, 66. (c) 2 Sw., N. 490 (d) 1 Russell on Crimes, p. State Trials, vol. 26, p. 714. Let us in the first instance endeavour to ascertain from the declarations of our great judges, before whom, in past times, the offence of profaneness has been brought, what are the grounds assigned in the English law for holding blasphemy punishable by the temporal power; or, in other words, what are the grounds for restricting the liberty of individuals, in so far as any attempted ridicule or contumely of religion is concerned. C. J. Hale says—(a) “Such kind of wicked blasphemous words are not only an offence to God and religion, but a crime against the laws, estate, 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 that Christianity is parcel of the laws of England; and therefore, to reproach the Christian religion, is to speak in subversion of the law." C. J. Raymond says-(b) "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." Lord Hardwicke says (c), in reference to a bequest for the propagation of the Jewish religion-"The intent of this bequestment must be taken to be in contradiction to the Christian religion, which is a part of the law of the land which is laid down by Lord Hale and Lord Raymond; and it undoubtedly is so, for the constitution and policy of this nation is founded thereon." Ashurst J. says (d), that "Although the Almighty does not 232. Howell require the aid of human tribunals to vindicate his precepts, it is nevertheless fit to show our abhorrence of such wicked doctrines as are not only an offence against God, but against all law and government, from their direct tendency to dissolve all the obligations whereby civil society is bound together; and that it is upon this ground that the Christian religion constitutes part of the law of the land. So, if the name of our Redeemer be suffered to be traduced, and his holy religion |