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 £100, and two sureties in £50 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.