MR. FITZJAMES STEPHEN ON LAWS OF PERSECUTION.
MR. FITZJAMES STEPHEN has written a paper of very curious interest in the new number of the Contem- porary Review on the persecuting laws which still remain valid in England, though they have long been practically obso- lete. Mr. Stephen lingers over them with a sort of tender regret which is rather touching, before he prepares to give them the coup de grcice. "I do not join in the indignation which is sometimes shown against those who try to deter people from the expression of opinions adverse to Christianity, by denouncing such opinions as dangerous and immoral, and by imposing social penalties on their advocates. I do not see how a sincere believer in Christianity can act otherwise ; and I think a sincere disbeliever should either have the discretion to be silent, or the courage to take the inevitable consequence of the expression of opinions at variance with the existing state of things." In short, Mr. Stephen is performing an act which evidently is, in him, slightly heroic, when he points out how obsolete all these persecuting laws are, and how desirable it is to wipe out nominal laws which can never be put into execution without doing mischief, from the Statute Book. He prepares to take his leave of persecution with some- thing of the tender melancholy of the mourner who wrote the lines,—
"Forgive. blest shade, the tributary tear That mourns thy exit from a world like this."
We have outlived such laws, perhaps because we are not alto- gether worthy of them, because they need a manlier race of believers to apply them with advantage. Anyhow, it is better to part with them. Possibly Mr. Stephen hopes that in "another and a better world," if we only try to deserve it, we may meet with some of them again, without the risk of seeing them administered by any such meddling old gentlemen as those whose administration of the ecclesiastical persecuting laws he attacks so sharply, and apparently so justly. But for the pre- sent and here, though it is a somewhat hard fate for almost the only survivor of the race which once defended so eagerly the principle of persecution, Mr. Stephen feels bound to show up the extreme inconsistency of these relics of persecution with all our actual habits of thought and life, and the great mischief of keeping, as he says' rusty but yet ready-loaded old blunder- busses among the ordinary furniture of our legal lumber- rooms. And he certainly brings before us a curious picture of provisions long forgotten, but which might at any time be revived to the great dismay of some of our literary and scientific and to the disgust of almost all of our public men.
The first elass of laws still applicable to the purpose of persecu- tion which Mr. Stephen explains is that of our Ecclesiastical laws. Though by statute—the statute called the Toleration Act— Dissenters are not, as dissenters, liable to be punished for their divergence from the Church of England, yet, to cite the exact words, "in cases of Atheism, blasphemy, heresy, or schism, and other damnable doctrines and opinions," any one whatever may be called before our Ecclesiastical Courts, excom- municated, and ordered both to pay costs and to perform some penance, which, if they refuse it, may be replaced by as many as six months' imprisonment, till the penance is performed and the costs paid. This is a very formidable kind of punishment, especially as it would be one that might be constantly repeated. There are none of the bolder negative writers who might not be struck at under these ecclesiastical laws, if any body were foolish enough to put them in force. There are periodicals—very powerful, and in their peculiar way high-minded ones, too—whose most characteristic contributors would all be in prison for half a year at once, if this law were enforced. We feel very little doubt that at least one Duke might be enjoined to do penance, or be imprisoned in lieu of penance, under its provisions. And doubtless there might be ecclesiastical dignitaries, both of the highest ma of the lower order, embraced under the same condemnation. The ecclesiastical law, then, even taken alone, is of a kind which, were it enforced, would rekindle the bitterness of a strife long unknown in England, and which would produce pro- bably even more dismay in the ranks of that Church on behalf of whose doctrines these obsolete penalties must be enforced, than in the ranks of the persecuted themselves. Indeed it is
quite certain that the only result of such a revival of an obsolete law would be the sudden awakening of an amount of sympathy with negative and destructive views, of which otherwise there would be no trace.
But it is not only through the Ecclesiastical law that the caprices of persecuting zeal, if such there were amongst us, could be gratified. Mr. Fitzja.mes Stephen proves that in many cases the Statute law and the Common law are applic- able for the purposes of religious persecution. For instance, the first statute of Edward VI., cap. 1, provides that "whoever shall deprave, despise, or contemn the most blessed Sacrament in contempt thereof, by any contemptuous words or by any words of depraving, despising, or reviling, or shall advisedly in any other wise contemn, despise, or revile the said most blessed Sacrament, contrary to the effect and declaration aforesaid, shall suffer imprisonment of his or their bodies, and make fine and ransom at the King's will and pleasure." Quarter- Sessions may try the offence, and in such cases the Justices are to summon the Bishop of the diocese, or his Chancellor, to advise them on the trial of the offenders—a summons which, as Mr. Stephen justly says, would take a modern Bishop very much by surprise. This statute makes de- liberate depreciation of the Sacraments an offence, punish- able by imprisonment and fine at the discretion of the Crown. Again, blasphemy is punishable at Common law, and Mr. Stephen, by a review of the cases, makes out (1) that "the application of abusive language to God, Jesus Christ, the Bible, Christianity in general," and perhaps to certain other objects of reverence, is a crime ; (2) that language which would be criminal under the preceding head does not cease to be so because it is interwoven in a serious argument against any Christian doctrine ; (3) that it is to some extent doubtful whether sober and decent language expressing disbelief in the doctrines of natural and revealed religion is punishable at Common law, but Mr. Stephen thinks that the great weight of legal authority would be in favour of its being so punish- able, though there is so much opening for an opposite view as to enable Judges unwilling to punish, to leave to the jury whether the expressions objected to were really used argumentatively, or were calculated to cause a breach of the peace. Finally, Mr. Stephen cites one more statute, under which persons brought up as Christians may be punished for maintaining Polytheism, or for denying the truth of Christianity, or denying Scripture to be of divine authority. Such an offender shall for the first offence be "adjudged incapable and disabled in law to have or enjoy any office or offices, employment or employments, ecclesiastical, civil, or military, or any part in them, or any profit or advantage ap- pertaining to them or any of them "; and he is also to forfeit any office which he holds at the time of his conviction. And in case of a second conviction, the person convicted shall "thenceforth be disabled to sue, prosecute, plead, or use any action or 'infor- mation 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 have any office, civil or military, or benefice ecclesiastical, for ever within this realm ; and shall also suffer imprisonment for the space of three years, without bail or mainprise, from the time of such conviction." This statute really amounts to the deprivation of all scep- tical servants of the Crown of their offices, and to depriv- ing them, for the second offence, of their ordinary rights as citizens. And as Mr. Stephen points out, the publication of the sceptical view is equally punishable if it be made simply in private conversation between a father and a son. The applica- tion of such a law at the present moment to any individual case would raise a cry of indignation throughout the Empire, and do more to cause a prepossession in favour of the disbelief thus suddenly punished by 'a bolt out of the blue,' than any amount of subtle argument whatever.
Mr. Stephen discusses very ably the question whether, even admitting that it is mischievous and vain to keep any traces of a law for the punishment of the argumentative advocates of the anti-Christian or atheistic view of the Universe,—for the punishment, for instance, of authors who, like Mr. J. S. Mill, in his three posthumous essays on religious belief, attack in the sober tone of genuine reasoning the popular view of Gotland Christian- ity,—it may yet be wise to keep a law for the punishment of those coarse and violent attacks on religious faith, which are not so much arguments addressed to the reason, as sneers and insults aimed at the feelings of Christians. And he replies, as we think, with unanswerable force, that it would be unequal, and there- fore unjust, to punish, in half-educated and awkward writers, the offences which, as soon as men's faculties are polished by culture and refilied by taste, it becomes simply impossible to bring within the scope of the law at all. He contrasts Gibbon's thinly-veiled, but still keen and effective sarcasms on the subtleties of the Christian theology, in the twenty-first chapter of his "Decline and Fall," with the vulgar weapons aimed at Christianity by unpractised hands, and remarks that it is at once imbecile and unjust to punish the latter, and to let the irony of the former go free. Yet any serious attempt to bring such sneers as Gibbon's at the fine shades which distinguish orthodoxy from heterodoxy,—for instance, at that "important diphthong" which marked the difference between the Nicene and the Arian theology,—within the grasp of the penal law, would obviously be ineffectual. We confess that this argument against drawing any legal distinction between what is commonly known as blasphemy and reasoned unbelief, seems to us quite sound. An educated intelligence will always know how to make an attack upon faith twice as deadly by making it under decent forms, and giving it the air of ironic reserve instead of the air of pugnacious attack. Yet there is no real difference between the spirit of the two assaults, or if there be, it is not in favour of the more delicate and dangerous one. No doubt there are insults to social decency so coarse that they ought to be restrained, even though aggressions on it equally dangerous, and perhaps even more secretly licentious, are left to the voluntary punish- ment inflicted by the ostracism of society. But, in relation to religion at least, it is probably quite enough to punish outrages on religious feeling only when, and so far as, they tend to bring about a breach of the peace. If you aim at anything further by law, you are certain, says Mr. Stephen, in the present condition of society at least, to do more harm by closing men's mouths, and inducing them to sap and undermine what they dare not openly assault, than you do good by prohibiting this open assault. As he very justly points out, Mr. J. S. Mill, who seems to have had much sympathy with the Christian religion at least on one of its sides, spent all his earlier life in an attack on the philosophical principles most favourable to it, and only disclosed to the world after his death, how fervent had been the impulse of adoration with which, nevertheless, Christ had inspired him.
In short, the case is very plain in relation to laws of persecution. It has become so unadvisable, so impossible to apply them, that they have in fact got clean forgotten. Can there be a better proof that they could not and should not be put in force? And if so, it is clear that we ought to abolish that liberty to persecute, which, by the unlucky caprice of some half-sane individual, might one day, to the disgust of everybody, be sud- denly claimed and put in force. Mr. Stephen's short Bill ought certainly to become law. That one of the last of the apologists for religious persecution in the abstract, should have been induced by the force of circumstances to draw the Bill for its final abolition in the concrete, is perhaps the most conclusive reason which it would be possible to give for rapidly passing it into law..
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