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.