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Article in Justice of the Peace
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169 JP (6 Aug 2005) 609
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Doc. No. 2005.045 |
Page 609
'A New Reason For Blasphemy Reform – Part
II'
FRANCIS BENNION
The Court of High Commission 1559-1640
Blasphemy became a serious element in church politics only with the breaking up of Christendom
at the Reformation. It then replaced heresy as the principal charge against forms of
Christian belief that were seen as undermining both faith and society. It became a term
of abuse employed to describe error in doctrinal controversy. During the Tudor period,
as in the mediaeval period, Church and State were regarded as a single society which
had many common objects. The two components of this society were bound to give one another
assistance in carrying out these joint purposes. The Church must help the State to maintain
its authority, and the State must help the Church to punish non conformists and infidels.
The Church was the church of the State, and membership of it was therefore a condition
precedent for full rights in the State; the king was the supreme governor of the Church;
and the law of the Church was the king’s ecclesiastical law.
A series of Acts of Henry VIII, starting in 1529, removed the papal jurisdiction over
England. When Catholic Mary came to the throne these were repealed by an Act of 1554.
However in 1558 the Act of Supremacy, the first Act of the reign of Elizabeth, finally
removed the papal jurisdiction. Section 8 (which is still in force) said that “all
powers for the visitation of the ecclesiastical state and persons, and for reformation,
order and correction of the same, and of all manner of errors, heresies, schisms, abuses,
offences, contempts and enormities, shall for ever by authority of this present parliament
be united and annexed to the imperial crown of this realm”.
Under powers conferred by the Act of Supremacy the Court of High Commission was set up
in 1559 to exercise the royal jurisdiction in church matters over both laity and clergy.
It consisted of 44 commissioners, some clerical and some lay. Any three, provided they
included a bishop, could impose punishments including spiritual censures, fines or imprisonment.
The procedure was based on canon law, so the common law doctrine against self incrimination
did not apply. However the church law as applied by the court began to diverge from the
general body of canon law. The emphasis of the law came to be put on blasphemy rather
than heresy, and this was to remain to the present day.
The Court of High Commission dealt with Puritans and Independents. At the Revolution
against Charles I the court was found to wield too great a discretionary and dispensing
power in favour of the Crown. Like the prerogative Court of Star Chamber, it was abolished
in 1640. The Blasphemy Act 1650
of the Rump Parliament, which designated blasphemy a capital crime, having in view Anabaptists,
Socinians, Familists, Ranters and other “enthusiasts”,
ceased to have effect on or before the restoration of the monarchy in 1660. Certain ancient
statutory offences of heresy and the like, contained in the Sacrament Act 1547, the Act
of Supremacy 1558 and the Act of Uniformity 1662, were repealed in modern times.
The common law period
With the demise of the Court of High Commission a vacuum was left, since the punishments
that could be imposed by the old church courts had lost their effectiveness. It was filled
by the common law, as enforced by the Court of King’s Bench. Occasionally Parliament
acted as a court, as in the trial of the Quaker James Nayler in 1656 for allowing himself
to be honoured as Jesus Christ. He was sentenced by the House of Commons to be put in
the pillory, whipped from Westminster to the Exchange, again placed in the pillory, to
have his tongue bored, his forehead branded with “B” for Blasphemer, then
taken to Bristol, there again whipped, and then sent to Bridewell until Parliament should
release him.
Twenty years later one Taylor was convicted of blasphemy at common law. The report is
brief
“An information exhibited against him in the Crown Office, for uttering of divers
blasphemous expressions, horrible to hear, (viz.) that Jesus Christ was a bastard, a
whoremaster,
religion was a cheat; and that he neither feared God, the devil, or man. Being upon his
trial, he acknowledged the speaking of the words, except the word bastard; and for the
rest, he pretended to mean them in another sense than they ordinarily bear, (viz.) whoremaster,
i.e. that Christ was master of the whore of Babylon, and such kind of evasions for the
rest. But all the words being proved by several witnesses, he was found guilty. And 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 that Christianity is parcel of the laws
of England; and therefore to reproach the Christian religion is to speak in subversion
of the law. Wherefore they gave judgment upon him, (viz.) to stand in the pillory in
three several places, and to pay one thousand marks fine, and to find sureties for his
good behaviour during life”
Page 610
Legislative interventions
The preamble to the Blasphemy Act 1697 recited that “many persons have of late
years openly avowed and published many blasphemous and impious opinions, contrary to
the doctrines and principles of the Christian religion, greatly tending to the dishonour
of Almighty God, and may prove destructive to the peace and welfare of this kingdom”.
For the benefit of Jews, it applied only to persons educated in, or at any time professing,
the Christian religion.
The 1697 Act made it an offence (1) to deny any one of the persons in the Trinity to
be God, or (2) to assert that there are more gods than one, or (3) to deny the Christian
religion to be true, or (4) to deny the Bible to be of divine authority. For a first
conviction the offender was deprived of the right to hold any office or employment. For
a second conviction he was liable to be deprived of civil rights and imprisoned for 3
years. There were few if any convictions under the Act, which was repealed by the Criminal
Law Act 1967.
Fox’s Libel Act 1792 was passed through the instrumentality of Charles James Fox.
It provides that it is a question of fact for the jury, and not as hitherto a question
of law for the judge, to decide whether a publication really is a blasphemous or other
libel. This enactment, passed in what was known as the Age of Reason, enabled juries
to soften the force of the law in favour of atheists and dissenters. The jurist Thomas
Starkie stated the new view of the law
“
There can be no doubt as to the general right of inquiry and discussion even upon the
most sacred subjects, provided the licence be exercised in the spirit of temperance,
moderation, and fairness, without any intention to injure or affront . . . It cannot
be doubted that any man has a right, not merely to judge for himself on [the questions
of the relations between the Creator and the beings of his creation], but also legally
speaking to publish his opinions for the benefit of others.”
The justification for this distinction between an appeal to reason and an appeal to the
emotions was stated by Lord Denman CJ in R v Hetherington when
he described the latter type of publication as one where “the tone and spirit is
that of offence and insult and ridicule, which leaves the judgment really not free to
act and therefore
cannot truly
be called an appeal to the judgment, but an appeal to the wild and improper feelings
of the human mind, more particularly to the younger part of the community”. This
overlooks the fact that if a person truly considers that for the public good a religious
doctrine should be opposed he ought to be able to use effective means such as satire,
sarcasm and ridicule.
The Libel Act 1843 (which is still in force) assists publishers of blasphemous and other
libels such as newspaper editors or proprietors by exempting them if they prove that
they were unaware of the nature of the item and had not been careless. They were further
aided by the Law of Libel Amendment Act 1888 (also still in force), which requires the
leave of a judge before prosecution for newspaper libel.
State security
A large number of common law prosecutions for blasphemy occurred in the late 18th and
early 19th centuries. In 1838 Alderson B told a jury:
‘. . . a person may, without being liable to prosecution for it, attack Judaism,
or Mohammedanism, or even 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 in the form established by law, and is . . . therefore part of the constitution
of the country.’
Preservation of the King’s peace has always been a prime concern of the common
law courts. In the 1917 case of Bowman v The Secular Society Lord Parker of
Waddington said that “to constitute blasphemy at common law there must be such
an element of vilification, ridicule, or irreverence as would be likely to exasperate
the feelings
of others and so lead to a breach of the peace”. In the same case Lord Sumner
said “the
gist of the offence of blasphemy is a supposed tendency to shake the fabric of society
generally”. He added that the question whether a given opinion is a danger to society “is
a question of the times and is a question of fact”. Thirty years later we find
Lord Denning saying of this postulated danger in his 1949 Hamlyn lecture that there is
no such danger to society now and the offence of blasphemy is a dead letter.
The last successful prosecution for blasphemy before the Gay News case in 1977
(described in Part I of this article) was R v Gott in 1922, where the defendant,
who had three previous convictions for blasphemy, was sentenced to nine months with hard
labour for selling
blasphemous pamphlets. A paper called The Liberator contained “two pamphlets,
entitled respectively ‘Rib Ticklers, or Questions for Parsons’ and ‘God
and Gott’. One man in the crowd said: ‘You ought to be ashamed of yourself”:
one woman said ‘Disgusting, disgusting!’ Nothing further occurred”.
The Lord Chief Justice, upholding the conviction, said “It does not require a person
of strong religious feelings to be outraged by a description of Jesus Christ entering
Jerusalem ‘like a circus clown on the back of two donkeys’ . . . Such a person
might be provoked to a breach of the peace”.
In a 1981 Working Paper the Law Commission said the state’s primary interest at
this period was its own security. They went on:
“Consequently the State intervened by using the criminal law to punish those whose
attacks on Christianity or the Deity were regarded as a menace to the foundations of
the established
religion and thus to society in general. It is therefore not surprising that the number
of prosecutions increased during the disturbed period following the French Revolution
for fear that the denial of Christian truths in such a work as Paine’s Age
of Reason might give rise to civil disobedience.”
Page 611
In 1985 the Law Commission published a report recommending that the common law offences
of blasphemy and blasphemous libel be abolished and not replaced. The
impact was marred by the fact that of the five commissioners a minority of two (including
the Chairman
of the Law Commission Ralph Gibson J) dissented, so not surprisingly the report has not
been acted on. The minority wished to replace the present law by a new offence. This “would
penalise anyone who published grossly abusive or insulting material relating to a religion
with the purpose of outraging religious feelings”. This
suggestion was modelled on a provision in the Indian Penal Code which prohibits the deliberate
outraging of the
religious feelings of any person.
Part III of this article, to be published in next week’s issue, surveys connected
matters, particularly the Government’s Racial And Religious Hatred Bill, and gives
an account of the two alternative ways in which blasphemy law abolition might at last
be accomplished.
<<<<<< Part I........................Part III >>>>>>
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16
Cha. I c. 11.
By
the Statute Law (Repeals) Act 1969 and the Church of England (Worship and Doctrine) Measure
1974.
Sir
Matthew Hale LCJ.
(1676)
86 ER 189..
Practical
Treatise on the Law of Slander, Libel, and Incidentally of Malicious Prosecutions (2nd
edn,
1830), pp. 145-6.
(1841)
4 Sr. Tr. N.S. 563.
R
v Gathercole (1838) 2 Lew. C.C. 237.
[1917]
AC 406.
[1922]
16 Cr. App. Rep. 87.
Law
Commission W.P. No. 79, Offences against Religion and Public Worship.
LAW
COM No. 145, Offences against Religion and Public Worship.
LAW
COM No. 145, para. 5.2
A
footnote to para. 5.3 of the report says that the Code “has existed for over a
century and does
not contain any definition of ‘religious’”.
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