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.
As to the duty of the jury, I have Lord Chief Justice Abbott's opinion, in his charge to the jury in summing up the evidence against Mr. Joseph Russell at the Warwick Summer Assizes, on Friday, August 13, 1819, for a political libel, being Mr. Hone's 'Parody on the litany.' Mr. Russell argued that as Hone had been acquitted for publishing it, he also ought to be. 'No one,' says his lordship, 'is more inclined than myself to speak reverently of the decision of juries. But, gentlemen, you cannot, under the sanction of an oath, take the verdict of those juries either directly or indirectly as your guide in the verdict you are called upon to give in this case. Those juries, no doubt, returned their verdicts honestly and conscientiously according to the evidence that was layed before them. What that evidence was you can know nothing of. You are to try the question by your own consciences and by your own reason. They might have been right in their decision, and you should be careful that you are right in yours.'
After this, you will see it is clear that though a jury had before found a person guilty of the offence I am charged with, it will be no justification of your doing so too. Here Mr. Holyoake, perceiving that he would be heard fairly, and that no attempts to put him down were practised, laid aside a handful of notes, and said:—
I have to thank your lordship, and you, gentlemen of the jury, for the courtesy and attention with which I have been heard. Gentlemen, if I have occupied you long you will find my apology in the circumstance that your verdict against me will occupy me longer. I could wish that justice to me and your convenience had permitted brevity. The length of my defence has originated with the charge against me, and not with myself.
It is said, that when Southey was asked if he were not ashamed of having written Wat Tyler, he answered, no more ashamed than I am of having been young. Meaning, any man may err in youth. So I erred in being religious in my early days. If I am not religious now, deem me not criminal. Religion never did me a service, how then should I love it? But it assailed my youth with gloomy dogmas, now it assails my liberty.
Gentlemen, if during my address to you I have offended by the frankness of my avowals, it has not proceeded from a disregard of your feelings, but from the belief that, as men, you would prefer independence to servility of speech.
Of the nature of the charge against me I add no further word. My only crime has been the discharge of what I considered a duty. For my difference in opinion with you upon the question of Deity, I offer no apology. I have made no contract to think as you do, and I owe you no obligation to do it. If I commanded you to abjure your belief, you would disregard it as impertinence, and if you punish me for not adjuring mine, how will you reconcile it with 'doing as you would wish to be done unto?'