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 But the former part has been repealed in favour of Unitarians, by the 53rd Geo.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merciless statutes which were enacted in times of the grossest ignorance and superstition; but those statutes have been repealed (9 Geo.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.'