Vict. c. 41, s. 7), any person who shall at any burial under the Act, "under colour of any religious service or otherwise, in any churchyard or graveyard, wilfully endeavour to bring into contempt or obloquy the Christian religion, or the belief or worship of any church or denomination of Christians, or the members or any minister of any such church or denomination, or any other person, shall be guilty of a misdemeanor."

Such, then, is the existing law as to blasphemy. It is not, I think, so harsh and illiberal as some have imagined. If Lord Coleridge and the judges in Shore v. Wilson are right, it does not place any barrier in the way of the freest inquiry or of the largest intellectual or spiritual progress. It permits the frankest avowal and the warmest advocacy of all opinions, however heretical, which the writer or speaker sincerely entertains. It only interferes where our religious feelings are insulted and outraged by wanton and unnecessary profanity.

I venture however to add some observations on the question, much discussed of late, whether the existing law should be amended, and, if so, in what direction and to what extent.

In the first place, every one will agree that the present difference of opinion among our judges as to what precisely is the law on the point should at once be set at rest. Probably most will also agree that all the statutes just recited (except the Burial Acts Amendment Act) should be repealed forthwith. These objects will be attained when the excellent Bill brought in by Mr. Courtney Kenny becomes law. The text will be found in Appendix C., post, p. 705. It will be observed that the concluding proviso is moulded on Article 298 of the Indian Penal Code, which runs as follows:

Whoever, with the deliberate intention of wounding the religious feelings of any person, utters any word, or makes any sound in the hearing of that person, or makes any gesture in the sight of that person, or places any object in the sight of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both."

But there is another Bill, which, though sadly neglected, is still, I suppose, in some form or other before Parliament. I refer to the Criminal Code Bill, the 141st section of which is as follows:

"Every one shall be guilty of an indictable offence, and shall be liable upon conviction thereof to one year's imprisonment, who publishes any blasphemous libel.

It shall be a question of fact whether any particular published matter is or is not a blasphemous libel: Provided that no one shall be liable to be convicted upon any indictment for a blasphemous libel only for expressing in good faith and in decent language, or attempting to establish by arguments used in good faith and conveyed in decent language, any opinion whatever upon any religious subject.”

The framers of the Code apparently intend to abolish the crime of oral blasphemy, as the section is confined to published libels, thus exempting all spoken lectures and addresses, however offensive, from the scope of the criminal law. I doubt if there is any sufficient reason for this change. The subsequent proviso should of course be extended to protect all words used in serious discussion, and intended to make known and to recommend opinions which the speaker conscientiously entertains. But if a lecturer deliberately chooses to shock his audience by using profane language when it is not necessary for purposes of serious discussion, or for the advocacy of opinions which he conscientiously entertains, then I do not see that he deserves protection. However, the proposed alteration is but a slight one, as only one man, so far as I am aware, had been convicted of oral blasphemy since 1676, and that was George Jacob Holyoake in 1842.

It has been also objected to this clause in the Criminal Code Bill, that it gives no definition of a "blasphemous libel." It will be observed, however, that an express proviso has been added to set at rest for ever the doubt felt by Mr. Justice Stephen, and I think that this proviso, explaining what is not blasphemy, is to some extent a definition. As to the word "libel," it is practically impossible to define it, and it is undesirable therefore to make the attempt. A jury generally has no difficulty in deciding whether a given publication is or is not a libel; but the malice of mankind takes such various forms. that any definition, however carefully worded (unless it were confined to vague but safe generalities), would be apt to exclude some cases which deserved punishment, while it included others which should have passed uncondemned.

This brings us to a further objection. The Criminal Code Bill will, it is said, "virtually leave the whole question to the jury," whereas it is better that "such outrages and insults to religious feelings as really merit punishment should be dealt with summarily by a magistrate, that procedure being preferable to the preliminaries and prolonged publicity of a jury trial, which at best serves to advertise rather than suppress what is truly obnoxious." But this objection will not, I think, commend itself to those best acquainted with our county and borough magistrates. It is contrary to all the

traditions of our law. Over and over again it has been laid down that "libel or no libel is pre-eminently a question for a jury." "The jury," says Mr. Justice (now Lord) Fitzgerald, in R. v. Sullivan, 11 Cox, C. C. 50, "are the true guardians of the liberty of the press." No doubt it may sometimes be a work of nicety to draw the line between liberty and licence, to distinguish the honest advocacy of heterodox opinions from malicious and wanton profanity. But, as the Lord Chief Justice remarks, the difference is one, not of degree, but of kind. In every action for defamation where "privilege" is pleaded, or a question of "bonâ fide comment " arises, the jury has a precisely similar duty to perform, and, as a rule, performs that duty admirably. There can be no doubt but that questions such as these are best left to the common sense of an ordinary British jury. Proceedings before justices, moreover, attain in the present day as much publicity as trials by jury; I should be sorry if it were otherwise.

But there are some who are satisfied neither with the proposals contained in the English Criminal Code Bill, nor with the provisions of Mr. Courtney Kenny's Bill for the abolition of prosecutions against laymen for the expression of opinion on matters of religion. They make a third suggestion, and that is to abolish the law relating to blasphemy altogether. They maintain that prosecutions for blasphemy do more harm than good; that they create a false sympathy with the offenders, and bring Christianity itself into hatred and contempt; that it is impossible to protect the religious feelings of all classes from insult and outrage: and that the true Christian would punish those who thus offended with contempt and scorn; but not by criminal proceedings, which only serve to advertise and bring into prominence the books condemned.

I feel there is much force in this argument. But at the same time I mistrust all propositions to abolish anything entirely. It is so easy. It saves all the trouble of sifting out what is good from what is bad. There is generally something worth preserving in all our English institutions, though it may be thickly overlaid with an accumulation of antiquated abuses. Is there nothing good, then, in our law as to blasphemy? Is it a good or an evil thing that men should be restrained from exhibiting in the public streets and in shop windows blasphemous pictures of the life of Christ, and other offensive caricatures such as appeared in the illustrated Christmas number of the Freethinker for 1882? Why is it more unchristian to prosecute those who engraved and published these pictures, than to prosecute a man for perjury or for an assault? Such a caricature is no argu

ment; it is simply a gratuitous insult to the religious feelings of the immense majority of us. It did no one any good. It certainly did harm to thousands of young people, who gazed at it when exhibited in shop-windows in the public streets, whilst it must have pained and wounded tens of thousands more. Yet if the whole of our law against blasphemy were abolished, there would be nothing to prevent or prohibit such an exhibition.

Our religious emotions surely demand from the law as much protection as our moral sense. It appears to me that there must and ought to be some law in force which will restrain the unnecessary exhibition of gross and offensive caricatures of holy things, and will prohibit outrages upon our best and highest feelings. What good can such publications do? Do they in any way advance the cause of truth? Is any one the wiser, or the better, or the happier, for having seen or read them? I trust I yield to no one in my desire for the freest and fullest religious liberty. I would abolish every obstacle to the honest search after truth. Let light be thrown on every question; let all matters, however sacred, be canvassed in the unfettered freedom of genuine and earnest discussion; let every man hold and teach whatever religious opinions he may conscientiously adopt. But the amplest measure of religious liberty is wholly compatible with, nay, it conduces to promote, a spirit of profound reverence for sacred things. Whatever tends to weaken or diminish this spirit is an injury to the community. And I hold, therefore, that it is the duty of our legislators, while, on the one hand, they protect and encourage all serious and reverent controversy on religious matters, yet, on the other hand, to make adequate provision for the prevention of blasphemous libels which give wanton and unnecessary offence to the highest and noblest instincts of our nature.

CHAPTER XVII.

OBSCENE WORDS.

Ir is a misdemeanour punishable by indictment and by information to publish obscene and immoral books and pictures: for such an act is destructive of the public morality and welfare, though it may not reflect on any particular person, and as such it is punishable at common law (R. v. Curl, 2 Strange, 788; 1 Barnard. 29, ante, p. 454).

The test of obscenity is this:-"Whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall." (Per Cockburn, C. J., in R. v. Hicklin, L. R. 3 Q. B. 371; 37 L. J. M. C. 89; 16 W. R. 801; 18 L. T. 395; 11 Cox, C. C. 19.)

Similarly it is a crime to speak vicious and immoral words, provided they be uttered before a large assembly, so as to affect the mass of society: for else there is no detriment to the general public.

Obscene words and libels are apparently within the jurisdiction of Courts of Quarter Sessions; not being excepted by the 5 & 6 Vict. c. 38.

The punishment may be either fine or imprisonment for a term of any length, and either with or without hard labour. (14 & 15 Vict. c. 100, s. 29.)

Illustrations.

Wilkes was fined £500 and imprisoned for a year for printing and publishing "An Essay on Woman."

R. v. John Wilkes, 4 Burr. 2527; 2 Wils. 151; Dig. L. L. 69.