Chapter II: The Trial (2)

During one of those commercial panics, which a few years ago passed over this country like a pestilence, my parents were suddenly reduced from a state of comparative affluence to one of privation. At one of these seasons my little sister became ill. While she was so the Rev. Mr. Moseley, M.A., Rector of St, Martin's, Birmingham, sent an order to us for his Easter due of fourpence. On previous occasions this demand had been cheerfully and promptly paid; but now, small as the sum was, it was sufficient materially to diminish the few comforts our house of illness unfortunately afforded; and it was therefore discussed whether the demand of the clergyman should be paid, or whether it should be expended in the purchase of some little comforts for my sick sister. Humanity decided; and we all agreed that it should be devoted to this latter purpose. It was; but, I think, the very next week, a summons came for the Easter due, and two shillings and sixpence were added, because of the non-payment of "the _fourpence_". The payment of this could now no longer be evaded, for in a few days a warrant of _distraint_ would have rudely torn the bed from under her, as had been the case with a near neighbour. Dreading this, and trembling at the apprehension, we gathered together all the money we had, and which was being saved to purchase a little wine to moisten the parched lips of my dying sister, for at this time her end seemed approaching. My mother, with a heavy heart, left home to go to the Public Office. The aisles there were cold and cheerless like the outside this court, and there, all broken in health and spirits, worn out with watching, and distracted by that anxiety for her child a parent, under such circumstances, only could feel, she was kept from five to six hours waiting to pay the two shillings and ten-pence. When she returned all was over--my sister was dead. Gentlemen, will you wonder if, after this, I doubted a little the utility of church establishments?* and if, after the circumstances I have related, I did not think so highly of church 'as by law established' as before, can you be surprised? Can you punish me for it? [At this point many ladies wept, and the Court manifested considerable attention.]

* I have since learned that Mr. W. J. Fox read this passage
in a Sunday morning lecture on the events of the month,
delivered at South-place in the September following my
trial; and I take this opportunity of acknowledging that Mr.
Fox was the only occupant of a pulpit from whom I received a
friendly line during my entire imprisonment.

I have been told to look around the world for evidences of the truth of the Christian religion; to look upon the world and draw different conclusions. It is well for those who enjoy the smiles of fortune to say so. For them all shines brightly--for them all is fair. But I can see cause of complaint, and I am not alone in the feeling. Mr. Capel Lofft had said, 'the sours of life less offend my taste than its sweets delight it.' On this Kirke White wrote:--

Go to the raging sea, and say
'Be still!' Bid the wild lawless winds obey thy will;
Preach to the storm, and reason with despair--
But tell not misery's son _that life is fair_.

Thou, who in plenty's lavish lap hast roll'd, And every year with new delight hast told--Thou, who, recumbent on the lacquer'd barge, Hast dropt down joy's gay stream of pleasant marge, Thou may'st extol life's calm, untroubled sea--The storms of misery ne'er burst on thee. Go to the mat where squalid want reclines; Go to the shade obscure where merit pines; Abide with him whom Penury's charms control, And bind the rising yearnings of his soul--Survey his sleepless couch, and, standing there, Tell the poor pallid wretch _that life is fair_!

Lo! o'er his manly form, decay'd and wan, The shades of death with gradual steps steal on; And the pale mother, pining to decay, Weeps, for her boy, her wretched life away.

Go, child of fortune! to his early grave, Where o'er his head obscure the rank weeda wave; Behold the heart-wrung parent lay her head On the cold turf, and ask to share his bed. Go, child of fortune, take thy lesson there, And tell us then that life is _wondrous fair_.

As I grew up I attended missionary meetings, and my few pence were given to that cause. When told of heathen kings who knew not God, and caged their miserable victims, I shuddered at their barbarity and prayed for their conversion. O waste of money and prayers that should have been employed on Christian men. O infantile fatuity! Do I not reap the whirlwind for my pains? I learned the accents of piety from my mother's lips. She was and still is a religious woman. Whatever may be the dissent I entertain, I have never spoken of her opinions in the language of contempt. I have always left her (as she to her honour has left me), to enjoy her own opinions. In early youth I was religious. I question whether there is any here who have spent more time than I did as a Sunday school teacher. I have given hours, which I ought to have employed in improving myself, in improving others. It is not without giving to Christianity time and attention--without knowing what it was--that I have given it up. Some lines I contributed to a religious publication at that time, will show the tone of thought which inquiry has subsequently changed:--

THE REIGN OF TIME.

The proudest earthly buildings show,
Time can all things devour;
E'en youth and beauty's ardent glow,
And manhood's intellectual brow,
Betray the spoiler's power:
How soon we sink beneath his sway--
He glances, and our heads turn gray.
Though, over all this earthly ball,
Time's standard is unfurled,
And ruins loud to ruins call
Throughout this time-worn world--
Yet from this wreck of earthly things,
See how the soul exulting springs.
And after the archangel's wand
Has wav'd o'er earth and sea,
And Time has stopped at his command,
The soul will nourish and expand
Through all eternity.
Religion--lovely, fair, and free--
Holds forth this immortality.
By all the glories of the sky,
To mortals yet unknown--
And by the worm that ne'er shall die,
The fires that always burn--
By all that's awful or sublime,
Ye sons of men improve your time.*

* 'Baptist Tract Magazine.' Vol. ii., p. 341.

It was stated by one of the magistrates that my being of no religion was no crime. I may conclude from what I heard this morning that I am not to be punished for not being religious. It was argued in, the _Cheltenham Chronicle_ that my expressing my opinions was no crime, and I was at some loss to know what my crime was. The charge stated I was guilty of _blasphemy_. In the depositions made against me, it is stated that I was brought before the Cheltenham magistrates on a charge of felony. I believe now what I have to answer is the accusation of uttering certain words offensive to the _Cheltenham Chronicle_.

This paper stated that 'three persons were ready to give evidence on the matter.' And yet the witness says he knew nothing of it till the policeman came for him. He says they were 'chaffing' about my remarks in the office--that is, joking upon them. It does not say much for his seriousness--reporting these 'horrid sentiments' at night, and the next morning '_chaffing_' about them. If it was an aggravation of my crime to have chosen an innocent subject, what would the learned counsel have said if I had chosen a guilty one? It has been sworn by the witnesses that I said I did not believe there was such a _thing_ as a God, and an attempt has been made to make you believe that I used the term 'thing' contemptuously, but the witness admits that I did not use it in a contemptuous sense. The same word occurs in some lines by Thomas Moore:--

Man, in the sunshine of the world's new spring,
Shall walk transparent like some holy thing.

I must have used the word 'thing' in some such sense as it is used in these lines.

It is laid down by the Common Law, that a person denying the existence of a God is a blasphemer. It has not been shown that I did this. I merely stated my disbelief--and disbelief is not included by the law. There is a great difference between denial and disbelief. If I had said distinctly 'there is no God,' it would have been stating that I was quite sure of it. I could not have said that, because I am not sure of it. I saw reasons for disbelief, but did not assert denial. Disbelief is all I profess. Those dogmatise who affirm, rather than those who deny a proposition. Mr. Southwell put this point in its proper light:--

'If God had never been affirmed, he could not have been denied. It is a rule of logic, and a very sensible rule, that the _onus probandi,_ that is the burthen or weight of proving, rests on those who affirm a proposition. Priests have affirmed the existence of a God, but who will maintain that they have complied with the rule of logic?'*

We can only, I think, arrive at a conviction of the existence of a God by the following modes:--

1. By the medium of _innate ideas_, which we are said by some divines to possess, and which intuitively lead us to entertain the idea of a God.

2. By the _senses_, the sole media by which all _knowledge_ is acquired.

3. By _conjecture_.--This is employed by those who suppose there must be a God from their inability otherwise to account for the existence of the universe, and are not willing to allow it to be inexplicable.

4. By _analogy_.--Comparison is the basis of this argument. Analogy is the foundation of natural theology.

5. By _revelation_.--In this country the Bible is said to contain the revelation of a God.

Of these it may be remarked:--

1. _Innate ideas_.--With regard to these, very conclusive reasons have been advanced by eminent philosophers for disbelieving that we have any. And human experience confirms this conclusion. Some nations, as the people of the Arru Islands, have no idea of a God. So this source of knowledge concerning one is, to say the least, dubious.

2. _Senses_.--'No man hath seen God at any time,' is a sufficient reply to this--for the same may be affirmed of every other sense, which is here affirmed of sight.

3. _Conjecture_.--This defies us. We only prove our own inability and multiply difficulties. For when we suppose a God, we cannot suppose how he came, nor how he created something out of nothing, which is held by the learned to be plainly _impossible_.**

* Oracle of Reason, No. 31, p. 251.

** Since this time Mr. Francis William Newman has put this
argument unanswerably in these words; 'A God uncaused and
existing from eternity, is to the full as incomprehensible
as a world uncaused and existing from eternity'--'The Soul,'
p. 36. Second edition.

4. _Analogy_ will not inform us. A small pivot or wheel cannot _infallibly_ indicate to us the mechanism to which it belongs, nor anything conclusive as to whether the whole had only one or more makers. So of the universe, no part can shadow forth the whole of that, nor inform us conclusively whether it had a creator or creators. And here it is to be observed the difficulty is greater than with machines--for a pivot or wheel is a finite part of a finite whole, and _both comprehensible_; but with the universe, all we can take cognisance of is but a very finite part of an _infinite_ whole, and that whole to all men acknowledged _incomprehensible_. Moreover, _creation_ can have no analogy--no one ever saw or can conceive of anything being created. So that this mode of learning the existence of a God fails. The Rev. Hugh M'Neile, M.A., minister of St. Jade's Church, Liverpool, in a lecture delivered to above four hundred of the Irish clergy, at the Rotunda in Dublin, said in reference to this part of the question, 'I am convinced, I say, that, from external creation, no right conclusion can be drawn concerning the _moral_ character of God. Creation is too deeply and disastrously blotted in consequence of man's sin, to admit of any satisfactory result from an _adequate_ contemplation of nature. The authors of a multitude of books on this subject, have given an inadequate and partial induction of particulars. Already aware (though perhaps scarcely recognising how or whence) that "God is love," they have looked on nature for proofs of this conclusion, and taken what suited their purpose. But they have not taken nature _as a whole_, and collected a conclusion fairly from impartial premises. They expatiate on the blessings and enjoyments of life, in the countless tribes of earth, air, and sea. But if life be a blessing, death is a curse. Nature presents the universal triumph of death. Is this the doing of a God of love? or are there two Gods--a kind one, giving life; and an unkind one taking it away; and the wicked one invariably the victor? In external creation, exclusively and adequately contemplated, there is no escape from Manichaeism. It is vain to say that the death of the inferior creatures is a blessing to man; for why, in the creation of a God of love, should any such necessity exist? And how would this account for the death of man himself?' So far the argument of analogy.

5. _Revelation_.--We have _none_. If others ever had, we can only determine it by human reason, and for this purpose Leslie has furnished his well-known rules. Therefore, as revelation means something superadded to reason, we cannot be said to possess it, for reason has to determine what is, and what is not revelation, and therefore is superior to it. Also, it is contended by divines that, but for the Bible we should know nothing of a God, which shows the unsatisfactory nature of the four methods of learning his existence we have gone through. And Lord Brougham contends that but for natural theology, or the analogy argument, which has been shown to be no argument at all, the Bible would have no other basis than mere tradition.

So you see, gentlemen, the philosophical difficulties besetting the path of a young inquirer into sacred things. These difficulties are to me insuperable, and hence I find myself incapable of employing language you are more fortunate in being able to adapt to your conscience.*

* The object of this passage was to show the jury the
intellectual difficulties belonging to this subject, and the
passage formed but an episode among the moral issues I
raised. A friend of mine asking an eminent divine at one of
Dr. Elliotson's seances, and who afterwards entered
parliament, what he thought of my defence. 'Oh it turned
upon that eternal conundrum the existence of God,' was the
answer. But I hope the reader will see something more in my
defence than the frivolity that employs itself on riddles.

But it has been stated I said I would put the Deity on half-pay. After first stating that I did not believe there was a Deity, is it likely I should say I would put him on half-pay? Would you put a servant on half-pay whom you never hired or had? All my expressions went to prove that I referred to the expenses of religion. I could not suppose that there is a being capable of governing the world, and consider him good and kind, and yet have any intention of bringing him into contempt. I had no personal reference to the Deity. I made use of that figure of speech because I thought they would understand it better, and they did understand it. I was saying we had many heavy burdens to pay to capitalists and others, and that I thought it hung like a millstone round us. Sir R. Peel said, when he introduced the income-tax, that the poor man could bear no more. I said there were twenty-four millions taken from us for the support of religion, and that they would do well to reduce that one-half. Suppose, gentlemen, that I did refer to the Deity, was my notion a dishonourable one? What man of you who had enough and to spare, and seeing the people around him in poverty, would not willingly relinquish part of his income to give them a bare subsistence? Who will deny that in England there are honest, industrious, hard-working men, honourable women, and beautiful children, who have not the means of obtaining food? Did I do him a disgrace if I thought he, who is called our Father, the Most High, would have dispensed with one-half of the lip-service he receives in order to give his creatures necessaries!

[It being nearly four o'clock the Jury asked leave to retire, to which Mr. Holyoake consenting, they left the Court for a short time. Some ladies who represented themselves as wives of clergymen, came round the dock offering Mr. Holyoake confections and refreshment, and expressing their regret at the treatment he had received, and the position in which he was placed.]

Mr. Holyoake, on resuming, said--According to a calculation that has never been disputed, the

'Pay to their Clergy.

Catholics, numbering... 124,672,000... L6,106,000
Protestants " ... 54,046,000... 11,906,000
Greek Church " ... 41,000,000... 760,000

Total of Christians 219,718,000 L18,762,000

'Of which England, for twenty-one millions of people, pays more than one-half.'* Thus the English pay five times more according to their numbers--I proposed a reduction of only one-half.

* 'Cheap Salvation.' By Henry Hetheringten.

Mr. W. J. Fox has told us--'If the government of the country disposed of the mismanaged funds of the clergy, they would have sufficient for their annual needful expenditure.'

Mr. Justice Erskine. If you can convince the jury that you only meaning was that the incomes of the clergy ought to be reduced, and that you did not intend to insult God, I should tell the jury you ought not to be convicted. You need not go into a laboured defence of that.

Mr. Holyoake. It was stated by one of the witnesses at Cheltenham that I said Christians are worshippers of Mammon. I thought it necessary for me to refer to it.

Mr. Justice Erskine. There is no evidence of that.

Mr. Holyoake. Then turn to the question _What is blasphemy?_ In the case of Mr. Southwell, one of the witnesses for the prosecution stated his opinion that the crime was '_bringing a scandal on the religion of the magistrates_.' Perhaps this is as correct a definition as can be given. It has been said to be 'an injury to God,' Men who could not string six sentences together grammatically, have told me they would defend God--men whom I should be ashamed to have defending me. But blasphemy is impossible in the sense of annoyance to God. Jonathan Edwards says--'The following things may be laid down as maxims of plain truth and indisputable evidence:--

'1. That God is a perfectly happy being, in the most absolute and highest sense possible.

'2. It will follow from hence, that God is free from everything that is _contrary to happiness_: and so that in strict propriety of speech there is no such thing as any pain, grief or trouble in God.

'3. Where any intelligent being is really crossed and disappointed, and things are contrary to what he truly desires, he is less pleased, or has the less pleasure, his pleasure and happiness are diminished, and he suffers what is disagreeable to him, or is the subject of something that is of a nature contrary to joy and happiness, even pain and grief.

'From this last maxim it follows, that if no distinction is to be admitted between God's hatred of sin, and his will with respect to the event and existence of sin, as the all-wise determiner of all events, under the view of all consequences through the whole com pass and series of things; I say, then, it certainly follows, that the coming to pass of every individual act of sin is truly, all things considered, contrary to his will, and that his will is really crossed in it, and that in proportion as he hates it. And as God's hatred of sin is infinite, by reason of the infinite contrariety of his holy nature to sin; so his will is infinitely crossed in every act of sin that happens. Which is as much as to say:--he endures that which is infinitely disagreeable to him, by means of every act of sin he sees committed--and so he must be infinitely crossed and suffer infinite pain every day, in millions of millions of instances, which would be to make him infinitely the most miserable of all beings.'*

But _blasphemy_ is an antiquated accusation. In a work** by Col. Feyronnet Thompson, it is remarked--'what a turmoil, what a splutter, was in this land, when men first announced that they would not eat fish, they would not bow down, they would not confess but when they liked, and this because the secret had got wind that these things were either not in the priests' own rule, or were against it! What threats of hell flames, what splashing about of fire and brimstone, what registration of judgments on men choked with a beef-steak on Friday! Look at one of those simple men in the present day, who shock themselves with the barouches, the cigars, the newspapers, and the elephants of a London Sunday, and occasionally digress to Paris, for the keener excitation of seeing Punch upon the Boulevards, and wondering where heaven reserves its thunder. And put the parallel case; that a good Austrian or Navarrese Catholic came here, and grieved his heart with our weekly doings on a Friday, to say nothing of our more wholesale offences for forty days together in Lent. "Such frying; such barbecuing; in no place did I see anybody having the smallest notion of a red herring! All are involved in one flood of sin and gravy! How fathomless the patience of heaven, that such an island is not swallowed up of the deep!" We have looked into the rule he professes to go by; and we declare it is not there, but the contrary. We know we must appear in the next world with all our mutton on our heads. But we have done our best to look at the rule with the light that God has given us; and in spite of Austria or Navarre, we will take the risk of His not being angry with us, for seeing no prohibition of mutton there.' Thus we see that _mutton-eating_ was at one period blasphemous.

* Quoted from 'A Commentary on the Public Discussion on the
subjects of Necessity and Responsibility,' &c By Jonathan
Jonathan, late of the United States.

** 'The Question of Sabbath Observance, tried by the
Church's own rule,' &c. By Col. Peyronnet Thompson, F.R.S,
of Queen's College, Cambridge.

Mr. Sergeant Talfourd told the jury, in the case of Hetherington v. Moxon, that if the government were consistent in carrying out prosecutions for blasphemy--Shakspere, Milton, Byron, Shelley, Southey--might be prohibited. This perhaps would be an agreeable result to a reverend gentleman well known in this court and county, who says all science should be destroyed; but I trust you entertain no such feelings, and that if I can show that my sentiments cannot be productive of harm, you will feel called upon to acquit me. I claim no inherent right of expressing my opinions, I only contend for liberty of expression because required for the public good. A doctrine was laid down by Lord John Russell upon the occasion of the presentation of the National Petition, which I will quote as a view of the subject of human rights well expressed.

'I am aware,' he said, 'that it is a doctrine frequently urged, and I perceive dwelt upon in this petition, that every male of a certain age has a right, absolute and inalienable, to elect a representative to take his place among the members in the Commons' House of Parliament. Now, sir, I never could understand that indefeasible right. It appears to me that that question, like every other in the practical application of politics, is to be settled by the institutions and the laws of the country of which the person is a native. I see no more right that a person twenty-one years of age has to elect a member of parliament than he has to be a juryman. I conceive that you may just as well say that every adult male has a right to sit upon a jury to decide the most complicated and difficult questions of property, or that every man has a right to exercise the judicial functions, as the people did in some of the republics of antiquity. These things, as it appears to me, are not matters of right; but if it be for the good of the people at large, if it be conducive to the right government of the state, if it tend to the maintenance of the freedom and welfare of the people, that a certain number, defined and limited by a reference to a fixed standard of property, should have the right of electing members of parliament, and if it be disadvantageous to the community at large that the right of suffrage should be universal, then I say that on such a subject the consideration of the public good should prevail, that legislation must act upon it as on every other, and that no inalienable right can be quoted against that which the good of the whole demands.'

If Lord Russell did not, I do see a difference between the claim of an elector and the right of a juryman. The elector is chiefly concerned with his own interests, the juryman with other people's--one is simple, the other complex. But with the measure of right laid down by his lordship in the sentiments I have quoted, I perfectly accord, and if it could be shown that freedom of expression produced public harm, then I would give it up. But I believe such a right would produce good, and therefore I claim it at your hands upon the ground of public good.

In what I urge, it is not faith but reason, as far as I understand it, that I take for my guide--a rule of argument I trust you will accept. 'Reason contents me,' was inscribed as the motto on the seal of the letter from Sir James Graham, acknowledging the receipt of the Cheltenham memorial. If reason 'contents' the Secretary of State, and 'fountain of justice,' surely it ought to 'content' the channels through which such justice is diffused over society. Reason would always be preferred by us were we not differently instructed. 'Bewildered,' says Diderot, 'in an immense forest during the night, and having only one small torch for my guide, a stranger approaches and thus addresses me: "_Friend, blow out thy light if thou wouldst make sure of the right path_" The "forest" was the world--the "light" was my reason---the "stranger" was a priest.'

After several quotations showing the dubious and often pernicious influence of sacred authority, Mr. Holyoake observed---Religious sanctions are regarded only by the ignorant, whom they confirm in folly. The good find their sanction in the satisfaction ef a virtuous act performed. In an address of the Rev. F. Close, delivered a short time since at the Church of England Tradesmen and Working Men's Association of Cheltenham, he said, 'that the more a man is advanced in human knowledge, the more is he opposed to religion, and the more deadly enemy he is to the truth of God.' If this Christian minister is to be believed, then may you burn your books--forsake all mental refinement--and be equal in piety and ignorance. If Christianity is opposed to human improvement, then should all systems of ignorance be patronised by Christians. Sentiments like these would lead us to give up Boyle, Locke, and Newton, and regard them, with the Rev. Mr. Close, with detestation.

Mr. Justice Erskine. Let me see the discourse of Mr. Close from which you are quoting.

The book was handed to his lordship.

Mr. Holyoake. If the correctness of that report be doubted, I may state that the sentiments of Mr. Close were replied to by Mr. G. Berkeley.

Permit me now to draw your attention strongly to what has been said by men in authority of the impolicy of these prosecutions--that even if you were justified in inflicting punishment on me, it would not be wise to do so, Lord Brougham, three or four years ago, said, 'I may underrate the power of truth opposed to error, and I may overrate the good sense of my fellow country men in rejecting it, but one thing I do not overrate--the power of persecution to spread that which persecution only can spread.' When I walk through any of those ancient places, as I did yesterday through your beautiful cathedral, I feel the majesty they ever present, and think of the manner in which our Catholic ancestors acted on the minds of men. There were sublimity and pageantry and pomp to create awe. We have none now of that beauty of architecture in our meagre churches and more meagre chapels. They had a service more imposing than we ever had. Recollecting all these things, I have wondered how anything could be found sufficiently powerful to shake them off. I have wondered how Luther, with his rude vulgarity, could have effected so much. I can only account for it in this way--that when the Catholics dragged his followers to gaol, it was found that human feelings were stronger than human creeds.

These prosecutions are entirely in opposition to the sentiments promulgated by yourselves, as appears from a book given me in gaol called the 'Manual of Devotion.' I amused myself by contracting the profession contained in it with the practice of my opponents. It is published by the 'Society for Promoting Christian Knowledge.' In the 'Discourse concerning Prayer,' it is laid down that the 'second qualification for prayer is charity or love. There is nothing so contrary to the nature of God, nothing so wide of the true spirit of a Christian, as bitterness and wrath, malice and envy; and therefore it is vain to think that even our prayers can be acceptable to God, till we have put on, as the elect of God, bowels of mercy, kindness, humbleness of mind, meekness, long-suffering, forbearing one another, and forgiving one another, as St. Paul commands.' Gentlemen, where are these sentiments evinced in this prosecution?

The 'third qualification--Is faith. If any of you lack wisdom, says St. James, let him ask of God, but let him ask in faith.' My prosecutors have asked Mr. Bubb, have had faith in policemen, and confidence only in the 'common law.'

The 'fourth qualification is--That in all things of a temporal concern, we must exercise an entire submission to the will of God. A good Christian will be sure to leave the issue in God's hands.' In my case not the will of God, but the will of bigots was done, and the 'issue' left in the turnkey's hands.

The 'fifth qualification--Is that the person praying hath a good intention; that he asks for a good end. We must not pray as the revengeful man when he prays for authority, that he may have the more power to effect his evil designs.' What can be more wholly condemnatory of these proceedings than these instructions of the 'Manual of Devotion?'

When the 'Life of Christ,' by Dr. Strauss, appeared in Berlin, contrary to usages in such matters, the Prussian government consulted the clergy to ascertain from them whether it would not be prudent to prohibit this extraordinary production. The celebrated Bishop Neander was commissioned by the ecclesiastical body of Berlin, to peruse the book and to return an answer. Neander did so, and declared in reply, that the work submitted to his examination threatened, it was true, the demolition of all creeds; nevertheless, he requested that full liberty should not be denied to his adversary, in order that full and free discussion might be the only judges between truth and error. And when asked whether it should be prosecuted, said, 'No, I will answer it.'

Mr. Justice Erskine. That work was temperately written.

Mr. Holyoake. Neander did reply to it, and Strauss had the manliness to acknowledge that it had corrected many of his errors. Would that have been done had he been prosecuted? Dr. Strauss's work on the scriptures got him a professor's chair in Germany. In this country it would have made him amenable to the common law, and to one, two, or three years' imprisonment.

Gentlemen, in the pertinacity of my open reply to Maitland, you may find something objectionable, but I happen to be an admirer of that sentiment expressed by the honest 'Vicar of Wakefield'--'In all human institutions a smaller evil is allowed to procure a greater good; as in politics, a province may be given away, to secure a kingdom; in medicine, a limb may be lopt off, to preserve the body. But in religion, the law is written and inflexible, _never_ to do evil.' Then, gentlemen, I ought to be tolerated in the truthfulness of my answer. Milton, in his Prose Works,* in reference to an incident in his travels, says:--

* Milton's Prose Works, pp. 933-4, 8vo edit. Edited by
Fletcher.

'While I was on my way back to Rome, some merchants informed me that the English Jesuits had formed a plot against me, if I returned to Rome, because I had spoken too freely of religion; for it was a rule which I laid down to myself in those places, never to be the first to begin any conversation on religion--but, if any questions were put to me concerning my faith, to declare it without any reserve or fear.'

This is the rule which I myself have followed in this case.

Since his lordship--with more liberality than is customary, and with more philosophy than I expected on matters of religion (on which I hear his lordship thinks very devoutly)--has said, that any religion may be discussed in temperate language, it is not necessary for me to prove, as I should have done, that it would be useless liberty for me to entertain opinions without permission to publish them. The only question is whether, in the expression of these opinions, I used a proper kind of language. I think I have proved that I was far from having any of those 'malicious' feelings the indictment presupposes. Many figures of speech have been used in this court from which my feelings revolted as much as those of any person could from what I said. No allowance is made for this, and too much importance is attached to what is assumed to be ridicule. A short time ago it was argued, that if the political squibs which are seen in shop windows were permitted to be published, they would bring government into contempt, and you would soon have no government. Their publication has been permitted. Have we no government now? I feel the utility of a government, and no force of ridicule could shake my belief in the importance of good government. So it is with religion. Nothing that is uttered, however contemptuous, can bring it into contempt, if it really is useful and beneficial. We might defy all the wits and caricaturists in the world to bring the problems of Euclid into contempt. No man can bring into contempt that which is essential and true.

The counsel who opened the case did not state whether the indictment was at statute or common law.

Mr. Justice Erskine. Common law.

Mr. Holyoake. Then, gentleman of the jury, I shall draw your attention to that, and I hope I shall be able to explain the law bearing on my case.

Mr. Justice Erskine. The jury must take the law from me. I am responsible for that.

Mr. Holyoake. I know, my lord; but still I may refer to it. A friend of mine consulted the works bearing upon the law of this case.* I have here the results of his labours, and, if I am wrong, your lordship will, in summing up, correct me.

* I was indebted to Mr. J. Homffrey Parry, barrister, for
the revision of the argument I employed.

Gentleman of the jury, the common law is a judge-made law. A judge laid down, some years ago, that to say anything against the Christian religion was an indictable offence. Another judge followed him and said the same; and at last it came not to be doubted. If I show there is no law properly made in parliament assembled, you ought to acquit me.

The offence with which I am charged is an offence at common law. There is no statute which punishes a man simply for denying the existence of God. There is a statute (9 and 10 Wm. III., c. 32) directed against those who denied the Trinity and who renounced Christianity. But the former part has been repealed in favour of Unitarians, by the 53rd Geo. III., e. 160; and the words I am charged with having spoken cannot be brought within the latter. There is a statute against profane cursing and swearing (19 Geo. II., c. 21), but it takes no cognisance of this offence. Human beings have also been put to death for witchcraft (33 Hen. VIII., c. 8; and 1 James I., c. 12), under the merciless statutes which were enacted in times of the grossest ignorance and superstition; but those statutes have been repealed (9 Geo. II., c. 5). This offence, therefore, is an offence against the common law, if it is an offence at all. It is to be found in the recorded decisions of the judges, if it is to be found anywhere; and the punishment for it is in their discretion. Had it been an offence under a statute, it would have been impossible for me to have denied the authority of the statute; but, as it is an offence at common law, it is quite competent for me to show that the authorities which have been supposed to constitute the offence do not warrant such a construction. Should your lordship even declare that you had no doubt upon the subject, it would still be competent for me to bring before you the decisions of former judges, to argue upon those decisions, and to show, if I could, that there was some mistake or error running throughout the whole of them. Your lordship, I am sure, will admit that judges are fallible, and that a blind, unreasoning submission to them no man should give. As some excuse for presuming to doubt the decision of some of your lordship's predecessors, I shall quote the following passage from the preface to Mr. Watkin's treatise on Conveyancing, allowed to be a master-piece of legal sagacity and method. 'I believe,' writes that gentleman, 'it will be found, on examination, that an implicit submission to the assertions of our predecessors, whatever station those predecessors may have held, has been one of the most certain sources of error, Perhaps there is nothing which has so much shackled the human intellect, nothing which has so greatly promoted whatever is tyrannic, preposterous, and absurd, nothing perhaps which has so much degraded the species in the scale of being as the implicit submission to individual dicta.' And he then goes on in vigorous terms to reprobate the practice of allowing 'authority to shoulder out common sense, or adhering to precedent in defiance of principle.' Upon the principle contained in this passage I shall act, in claiming the attention of your lordship, and you, gentlemen of the jury, whilst I examine the authorities for the doctrine which brings the offence with which I am charged within the jurisdiction of the temporal courts. Your lordship will, perhaps, refer to these books.

Mr. Justice Erskine, No need of that. If it is not an offence at common law, this indictment is worth nothing. You can take it before the fifteen judges on a writ of error. I sit here, not to correct the law, but merely to administer it.*

* I have been told by a legal friend of great experience,
that at this point I might have taken the judge at his word,
and have carried the case before the judges for decision;
but I was unacquainted with the forms of law in such cases,
and I moreover distrusted the judge.

Mr. Holyoake resumed. In the fourth volume of 'Blackstone's Commentaries,' p. 59, in speaking of offences against God and religion, that writer says, 'The fourth species of offences, therefore, more immediately against God and religion, is that of blasphemy against the Almighty, by denying his being or providence, or by contumelious reproaches of our saviour, Christ. Whither also may be referred all profane scoffing at the holy scripture, or exposing it to contempt and ridicule. These are offences punishable at common law by fine and imprisonment, or other infamous corporal punishment; _for Christianity is part of the laws of England_.' Blackstone quotes, in support of the first species, a volume of 'Ventris' Reports,' p. 298; and the second from the second volume of 'Strange's Reports,' p. 834. Mr. Christian, the commentator upon Blackstone, adds, in a note, a passage from the 'Year Book' (34 Henry VI.), folio 43.

The earliest case is that from the year book, in the 34th year of Henry VI. (1458). Mr. Christian quotes from it this passage--'Scripture est common ley, sur quel toutes manieres de leis sont fondes' (i.e., Scripture is common law, upon which all descriptions of laws are founded). Were this quotation correct, and did the word scripture here mean 'holy scripture,' or what is generally understood by the Bible, then I admit this passage would be a good foundation to build up Mr. Judge Blackstone's law. But it is no such thing. The case in the year book is a case of _quare impedit_, and, in the course of the argument the question arose whether, in a matter of induction to a benefice by the ordinary (i.e., the bishop) the common law would take notice of, or be bound by, the law or practices of the church. Where-. upon, Chief Justice Prisot says--'To such laws, which they of the holy church have in "ancient writing," it becomes us to give credence, for such is common law, upon which all descriptions of laws are founded. And therefore, sir, we are obliged to recognise their law of the holy church--likewise they are obliged to recognise our law. And, sir, if it appears to us now that the bishop has done as an ordinary should do in such a case, then we ought to judge it good--if otherwise, bad.'

In this passage, then, there is not one word about scripture in the sense of 'holy scripture.' Judge Prisot says, 'To such laws as the church has in ancien scripture (t. e.9 ancient writing) we ought to give credence.' And what does he mean by 'laws which the church has in ancient writing?' not any laws that are to be found in the Bible, but the canon or ecclesiastical laws by which the temporal concerns of the church are guided. And the reason he uses the phrase 'ancien scripture,' or ancient writing, is that the laws were not then printed; the only record of them was in writing. Printing had not been introduced into England, and was only just discovered on the continent, the laws therefore of the spiritual and temporal courts were only to be seen in writing. And as though there should be no doubt as to his meaning, he goes on to say, 'And as we are obliged to recognise their laws (that is the ecclesiastical laws, or laws of the spiritual courts), so they are obliged to recognise our laws (that is, the laws of the temporal courts).' It must therefore be evident that this quotation of Mr. Christian is a perversion or mistake, a judicial forgery or a judicial blunder, and in either case its authority is of no value. It must be dismissed altogether from our minds in considering what the law is upon this point--that is, whether Christianity is or is not a part and parcel of the law of England. Unfortunately, however, we shall find that this case is actually made the substratum of the law. In proving, therefore, that it cannot warrant such a law, surely I prove that at common law, at least to speak against Christianity, is not an offence.

The next case is that in Ventris' Report, vol. 1, p. 293. It is called Taylor's case, and Chief Justice Hale certainly declares explicitly in this case, 'that Christianity is parcel of the laws of England.' But he cites no authority whatever.

In the case analysed from the year book, it is expressly said, that the common law is to be found in 'ancient writings,' and the unsupported dictum of a judge in the middle of the seventeenth century cannot be construed as a part of the ancient writings of the common law. Either the law already existed or it did not. If it did, the question is--where is it? If it did not, Chief Justice Hale could not then make it for the first time; and this case in Ventris' cannot be said to lay down the law. The case in the second volume of Strange is the King v. Woolston. The defendant had been convicted of writing four blasphemous discourses against the divinity and character of Christ; and upon attempting to move in arrest of judgment, the court declared they would not suffer it to be debated whether to write against Christianity in general was an offence punishable in the temporal courts of common law. And they cited Taylor's case, which has been shown to be an insufficient authority, or rather no authority at all, and the King v. Hale, in the same volume of Strange, p. 416, but which was an indictment under the statute (9 & 10 Wm. HI.) for speaking against the Trinity, and therefore cannot in any way support the common law doctrine.

The first person who called attention to the utter want of authority in the common law for the dictum 'that Christianity was part of the common law,' was Jefferson, the second president of America--himself a profound lawyer, and to his references I am indebted for the foregoing authorities, which, however, have been carefully verified. Mr. Jefferson, in a letter to Major Cart-wright, to be found in vol. ii., p. 272, of his 'Memoirs,' exposes the mode in which this law was created. Alluding to the case of Prisot, he says, 'Finch in his first book, c. 3, is the first who afterwards quotes this case. He misstates it thus: "To such laws of the church as have warrant in holy scripture, our law giveth credence," and cites Prisot, mistranslating "ancien scripture" into holy scripture. This was in 1613, a century and a half after the dictum of Prisot. Wingate, in 1658, erects this false translation into a maxim of the common law, copying the words of Finch, but citing Prisot. Shephard, title "Religion," in 1675, copies the same mistranslation, quoting the year book, finch, and Wingate. Hale expresses it in these words, "Christianity is parcel of the laws of England," but quotes no authority. Wood, 409, ventures still to vary the phrase, and says, "that all blasphemy and prophaneness are offences by the common law," and Blackstone repeats the words of Hale.' In the case of the the King v. Carlile, decided since Mr. Jefferson wrote this letter, there was no argument as to the common law. The question was as to whether the statute (9 & 10 Wm. III.) had superseded the common law. But the common law itself was not called in question, which I submit it should be, and by a wise example superseded.

But let us see what Christianity is according to common law? We may remark--

1. Its inconsistency.--It calls blasphemy the greatest crime man can commit. Yet in the case of Hetherington v. Moxon, it permits the _respectable_ blasphemer to go free. Blasphemy in guinea volumes it allows, but exhibits the holiest horror at it when in penny pamphlets.

2. Its barbarity, as in Peter Annet's case.--In Michaelmas term, M. 3. G. 3. Peter Annet was convicted on an information for writing 'a most blasphemous libel,' in weekly papers called the _Free Inquirer_, to which he pleaded guilty; in consideration of which, and of his poverty, of his having confessed his errors in an affidavit, and of his being 74 years old, and some symptoms of wildness that appeared on his inspection in court, the court declared they had mitigated his punishment to the following: To be imprisoned in Newgate for one month; to stand twice in the pillory with a paper on his forehead, inscribed Blasphemy; to be sent to the House of Correction to hard labour for a year; to pay a fine of 6s. 8d., and to find security himself in L100, and two sureties in L50 each for his good behaviour during life.*

3. Its capriciousness.--The common law before the time of Henry VIII. was one thing, but afterwards it was another. The language which was blasphemy at the first period, was not so in the other. Those expressions which insulted God before Henry the Eighth was born, did not insult him afterwards. Henry the Eighth's opinion made the difference. Lord Commissioner White-locke (5 Howell's State Trials, p. 826), in Debate whether James Nayler the quaker should suffer death, remarked, 'I remember a case in our book H. 7, where the bishop committed one to prison for a heretic, and the heresy was denying that tythes were due to the parson. This at that time was a very great heresy.'

4. Its disregard of equal justice.--A British subject would be punished for firing into a Turkish vessel; but he is not punishable for attacking the captain and sailors with Bibles and tracts, which, if they read and believe, will make them apostates from the faith of Mahomet, and blasphemers of the Koran. While on terms of amity with the Sublime Porte, the laws of England restrain us from despoiling them of their property, but not from despoiling them of their religion.**

* Blackstone's Reports, p. 305.

** Vide Freethinker's Information for the People.

5. It debases religion as best set forth.--'Religion (says Miss Martineau) is, in its widest sense, "the tendency of human nature to the infinite;" and its principle is manifested in the pursuit of perfection in any direction whatever. It is in this widest sense that some speculative atheists have been religious men; religious in their efforts after self-perfection; though unable to personify their conception of the infinite. In a somewhat narrower sense, religion is the relation which the highest human sentiments bear towards an infinitely perfect being. There can be no further narrowing than this. Any account of religion which restricts it within the boundaries of any system, which connects it with any mode of belief, which implicates it with hope of reward, or fear of punishment, is low and injurious, and debases religion into superstition.' How much more is religion degraded that is made the subject of reward and punishment here?

Thus speaks the common law upon these points, and thus, as part of the common law, speaks Christianity. Will you, by a verdict of guilty this day, send forth to the world this card of credentials of the religion of Jesus?

The intention of a libel constitutes its criminality. It is for you, gentlemen, to say whether I knowingly, wickedly, and maliciously offended the law? Malice is necessary to a libel--conscientious words are allowable, 'Contumely and contempt are what no establishment can tolerate: but on the other hand it would not be proper to lay any restraint upon rational and dispassionate discussions of the rectitude and propriety of the established mode of worship.' 4 Bla. Com. 51; 1 Pmp. 219. And Mr. Starkie, on the subject, says 'that it may not be going too far from the principles and decisions, that no author or preacher who fairly and conscientiously promulgates the opinions with whose truth he is impressed for the benefit of others, is for so doing amenable as a criminal, that a malicious and mischievous intention is in such case the broad boundary between right and wrong; and that if it can be collected from the offensive levity with which so serious a subject is treated, or from other circumstances, that the act of the party was malicious, then, since the law has no means of distinguishing between different degrees of evil tendency, if the matter published contain any such tendency, the publisher becomes amenable to justice.'*

* Starkie on Libel, pp. 496-7.