PART IV

ACTS INJURIOUS TO THE PUBLIC IN GENERAL.

CHAP. XVI.-UNDEFINED MISDE- CHAP. XVIII.-OFFENCES AGAINST

ACTS INVOLVING PUBLIC MISCHIEF.

1ACTS deemed to be injurious to the public have in some instances been held to be misdemeanors, because it appeared to the Court before which they were tried that there was an analogy between such acts and other acts which had been

1 See 3 Hist. Cr. Law, 351-60, and 2 Hist. Cr. Law, 197-9; see the whole of chapter i. of Sir W. Erle's work on Trade Unions, pp. 1-54, particularly pp. 48-53; also his account of R. v. Rowlands and R. v. Duffield, Ibid. 81-7. Wright on the Laws of Conspiracy should be studied, and contrasted with this. As to offences relating to the administration of justice, see 5th Rep. C. L. C. passim, but particularly p. 29, &c., p. 50, &c., and R. v. Opie, 1670, 1 Saund. 301; R. v. Ring, 1800, 8 T. R. 585, and other cases there cited. As to public officers, R. v. Bembridge, 1783, 22 St. Tr. 1. After quoting the judgment of Willes, J. (the colleague of Lord Mansfield), in Millar v. Taylor, 4 Burr. at p. 2312, to the effect that "justice, moral fitness, and public convenience, when applied to a new subject, make common law without a precedent," Pollock, C.B., said, "I entirely agree with the spirit of this passage so far as it regards the repressing what is a public evil and preventing what would become a general mischief; but I think there is a wide difference between protecting the community against a new source of danger and creating a new right. I think the Common Law is quite competent to pronounce anything to be illegal which is manifestly against the public

held to be misdemeanors, although such first mentioned acts were not forbidden by any express law, and although no precedent exactly applied to them.

This has been done especially in the case of agreements between more persons than one to carry out purposes which the judges regarded as injurious to the public, in which case such acts have been held to amount to the offence of conspiracy,

or when they have been done by a public officer in relation to his official duty,

or when they tended in any way to pervert the administration of justice, or to disturb the public peace,

or when the proceeding has been by parliamentary impeachment.

good; but I think the Common Law cannot create new rights," &c., Jefferys v. Boosey, 1854, 4 H. L. C. at p. 936. As to cheats affecting the public, see 2 East, P. C. 818-822, and see R. v. Vreones 1891, 1 Q. B. 360; where an attempt to mislead a judicial tribunal which might be called into existence, by the manufacture of false evidence, was held to be a misdemeanor.

CHAPTER XVII

1 OFFENCES AGAINST RELIGION

ARTICLE 179.

BLASPHEMY DEFINED-ALTERNATIVE DEFINITIONS.

2 EVERY publication is said to be blasphemous which con

tains

Matter relating to God, Jesus Christ, the Bible, or the Book of Common Prayer, intended to wound the feelings of mankind, or to excite contempt and hatred against the church by law established, or to promote immorality.

Publications intended in good faith to propagate opinions on religious subjects, which the person who publishes them regards as

(a.) A denial of the truth of Christianity in general, or of the existence of God, whether the terms of such publication are decent or otherwise.

(b.) Any contemptuous reviling or ludicrous matter relating to God, Jesus Christ, or the Bible, or the formularies of the Church of England as by law established, whatever may be the occasion of the publication thereof,

1 See 2 Hist. Cr. Law, ch. xxiv. 298-396, and Draft Code, Part XII. 2 There is authority for each of these views, as may be seen from a collection of all the cases on the subject in Folkard's Edition of Starkie on Libel, 613-625. Most of the cases are old, and I do not think that, in fact, any one has been convicted of blasphemy in modern times for a mere decent expression of disbelief in Christianty. Mr. Starkie many years ago wrote, "A wilful intention to pervert, insult, and mislead others by means of licentious and contumelious abuse applied to sacred subjects, or by wilful misrepresentations or artful sophistry calculated to mislead the ignorant and unwary, is the criterion and test of guilt." This is the language of a man who means, but is reluctant to say plainly, "You may deny Christianity to be true, but you must do it in a decent way, and with regard to the feelings of others." Lord Coleridge allows me to say that the left-hand side of the page correctly states the law laid down in the last trial which took place for blasphemy, R. v. Pooley, tried

true, are not blasphemous (within the meaning of this definition) merely because their publication is likely to wound the feelings of those who believe such opinions to be false, or because their general adoption might tend by lawful means to alterations in the constitution of the church by law established.

and whether the matter published is, or is not, intended in good faith as an argument against any doctrine opinion, unless the publication is made under circumstances constituting a lawful

excuse.

or

Everyone who publishes any blasphemous document is guilty of the misdemeanor of publishing a blasphemous libel. Every one who speaks blasphemous words is guilty of the misdemeanor of blasphemy.

ARTICLE 180.

HERESIES.

1 Every person who is guilty of atheism, blasphemy, heresy, schism, or any other damnable doctrine or opinion (not punishable at common law), may, upon conviction. thereof before competent ecclesiastical Court, be directed

at the Bodmin Summer Assizes, in 1857, before Coleridge, J. Lord Coleridge was counsel in that case. For the reasons given in the chapter on offences against religion in my History of the Criminal Law, Vol. II. p. 474, I am now unable to agree with the milder view of the law. See Draft Code, s. 141. In R. v. Ramsey and ors, 1883; 1 Cab. & Ell. 126, a case of blasphemous libel tried before Lord Coleridge, he directed the jury according to the doctrine stated in the left-hand column. His summing-up was published by Stevens and Sons in 1883. I wrote an article on the subject maintaining my own view in the Fortnightly Review for March, 1884, and Mr. Aspland afterwards published an able pamphlet on the other side of the question. It did not convince me. It has been often suggested, and would, I think, be highly desirable, that the question should be settled by Parliament.

1 29 Car. 2, c. 9; 53 Geo. 3, c. 127, ss. 1, 2, 3; and see Phillimore, Eccl. Law, 1075-7. The excommunication and term of imprisonment is signified to the Queen in Chancery, whereupon a writ issues "de excommunicato capiendo."

2 Phillimore v. Machon, 1876, 1 P. D. 481; Co. Litt. 96 b.

to recant the same and to do penance therefor, and to be excommunicated and imprisoned for such term, not exceeding six months, as the Court pronouncing the sentence of excommunication may direct.

ARTICLE 181.

DENYING TRUTH OF CHRISTIANITY, &C.

1 1 Every one commits a misdemeanor and upon conviction thereof is liable to the punishments hereinafter mentioned, who having been educated in, or at any time having made profession of, the Christian religion within this realm, by writing, printing, teaching, or advised speaking, denies the Christian religion to be true, or the holy scriptures of the Old and New Testament to be of Divine authority.

For the first offence the offender must be adjudged incapable and disabled in law, to all intents and purposes whatsoever, to have or enjoy any office or employment, ecclesiastical, civil or military, or any part in them, or any profit or advantage appertaining to them, and if at the time of his conviction the person convicted enjoys or possesses any office, place, or employment, such office, place, or employment becomes 2 void.

Upon a second conviction for all or any of the said crimes the offender is from thenceforth disabled to sue, prosecute, plead, or use any action or information in any Court of law or equity, or to be guardian of any child, or executor or administrator of any person, or capable of any legacy or deed of gift, or to bear any office, civil or military, or benefice ecclesiastical, for ever within this realm, and must also suffer imprisonment for the space of three years from the time of such conviction.

Provided that any person convicted of any of the aforesaid crimes for the first time shall be discharged from all penal

19 Will. 3, c. 35, as altered in favour of persons denying the doctrine of the Holy Trinity by 53 Geo. 3, c. 160, which was afterwards repealed, but its effect remains, see 36 & 37 Vict. c. 91.

2 "Shall be and is hereby declared void."