320.32 Lord Denning wrote in 1953 (The Changing Law, pp. 99-122),
"We seek truth and justice. We cannot find it by argument and debate nor by reading and thinking but only by the maintenance of true religion and virtue. Religion concerns the spirit in man whereby he is able to recognise what is Truth and what is Justice, whereas Law is only the application however imperfectly of Truth and Justice in our everyday affairs. If religion perishes in the land, Truth and Justice will also. We have already strayed too far from the faith of our fathers; let us return to it; it is the only thing that can save us."
320.51 In 1612 the last heretic was burned by the Writ De Haeretico Comburendo, the same year that Lord Bacon wrote his essay on atheism where he says,
"The causes of atheism are divisions in religion if they be many; for any one main division adds zeal to both sides but many divisions introduce atheism; Another is scandal of priests, the custom of profane scoffing in holy matters which doth by little and little deface the reverence of religion; lastly learned times, especially with peace and prosperity, for troubles and adversities do more bow men's mind to religion."
320.52 In 1675 in Taylor's case Chief Justice Holt said,
"... for to say religion is a cheat is to dissolve all those obligations whereby the civil societies are preserved"
and
"Christianity is part and parcel of the laws of England and therefore to reproach the Christian religion is to speak in subversion of the law."
320.53 In 1688 the Act of Toleration tolerated protestant dissenters. In 1697 the Blasphemy Act prescribed penalties against Christians.
0.54 In Curl's case (1727) Probyn J said, of Blasphemy,
"It is punishable at common law as an offence against the peace tending to weaken the bonds of civil society."
In Woolston's case (1728)
"We do not meddle with any differences in opinion and we interpose only where the very root of Christianity itself is struck at . . . to say an attempt to subvert the established religion is not punishable by those laws upon which it is established is an absurdity."
320.55 In Costa against LaPaz (1754) court enforcement of the right to propagate the Jewish religion was disallowed because the Act of Toleration is an exemption only from penalty, not a new right at law. In Harrison v Evans (1767) Lord Mansfield proclaimed the common law in these terms:
"There was never a single instance from the Saxon times down to our own, in which a man was ever punished for erroneous opinions concerning rites or modes of worship, but upon some positive law."
"The eternal principles of natural religion are part of the common law, the essential principles of revealed religion are part of the common law so that any person reviling, subverting or ridiculing them may be prosecuted at common law.
320.56 In 1815 the Unitarians received toleration by Act of Parliament. In 1819 in Re Bedford Charity Lord Eldon observed that 'Christianity is part of the law of England and- that there is a difference between worshipping the Supreme Being in Chapel or Church rather than in a Synagogue. In Lawrence v. Smith Lord Eldon said,
"The law does not give protection to those that contradict the scriptures".
320.57 In 1829 the Roman Catholics were given emancipation and in 186S the Jews. In 1881 in Clark v Bradlaugh persons were allowed to affirm instead of swear on the Bible. By 1900 Fillimore J. was able to say in Regina v. Boulter,
"Man is free to think and to speak and to teach what he pleases as to religious matters but not as to morals."
320.58 In Bowman v Secular Society Limited 1917 the deceased left a bequest to the Secular Society whose objects were:
(A) To promote, in such ways as may from time to time be determined, the principle that human conduct should be based upon natural knowledge, and not upon supernatural belief, and that human welfare in this world is the proper end of all thought and action.
(B)To promote the utmost freedom of enquiry and publication of its discoveries.
(C) To promote the secularisation of the State, so that religious tests and observances may be banished from the Legislative, and Executive, and the Judiciary.
(D)To promote the abolition of all support, patronage, or favour by the State of any particular form or forms of religion.
(E)To promote universal secular education, without any religious teachings, in public schools maintained in any way by municipal rates or imperial taxation.
(F) To promote an alteration in the laws concerning religion, so that all forms of opinion may have the same legal rights of propaganda and endowment.
(G) To promote the recognition by the State of marriage as a purely civil contract, leaving its religious sanctions to the judgment and determination of individual citizens.
(H) To promote the recognition of Sunday by the State as a purely civil institution for the benefit of the people, and the repeal of all Sabbatarian law devised and operating in the interest of religious sects, religious observations, or religious ideas.
320.59 The bequest was opposed as being void for having an illegal purpose. The House of Lords found 4 to 1 in favour of the bequest. Lord Finlay, the Lord Chancellor, dissented holding:
"It has been repeatedly laid down by the Courts that Christianity is part of the law of the land, that our civil polity is to a large extent based upon the Christian religion, this is notably so with regard to the law of marriage and the law affecting the family. The statement that Christianity is part of the law of the land has often been given as a reason for punishing criminally contumelious attacks upon Christianity. It is true that expressions have in some cases been used which would seem to imply that any attack upon Christianity, however decently conducted, would be criminal. For the reasons I have already given I do not think that this view can be accepted as having represented the common law of England at any time. But the fact that Christianity is recognised by the law as the basis to a great extent of our civil polity is quite sufficient reason for holding that the law will not help endeavours to undermine it.
"It is foreign to the subject of the present inquiry to consider whether the welfare of the individual and the greatness of the nation would be best promoted by proceeding on the lines of the Secular Society, involving the ignoring of the supernatural as influencing human conduct, and holding out the promotion of happiness in this world as the chief end of man, or upon the lines indicated in the striking passage with which Lord Bacon concludes his Essay on Atheism and the still more striking quotation from Cicero which he there makes. Such considerations bear upon public policy and may have had some influence in moulding the English law upon the subject. But we have to deal not with a rule of public policy which might fluctuate with the opinions of the age, but with a definite rule of law to the effect that any purpose hostile to Christianity is illegal. The opinion of the age may influence the application of this rule but cannot affect the rule itself. It can never be the duty of a Court of law to begin by inquiring what is the spirit of the age and in supposed conformity with it to decide what the law is. Very nice and difficult questions may arise as to whether in any particular case the purpose is hostile to the Christian religion. No such difficulty arises in the present case, as by the memorandum of association the axe is laid to the root of the tree of all religion.
320.60 Lord Dunedin agreed with the majority, Lord Parker proceeded on technical grounds but adding that there was a difference between un-Christian and anti-Christian material and said that as there were many millions of the Queen's subjects who were not of her religion, the Courts should not be precluded from giving effect to the trusts and purposes of those religions.
320.61 Lord Buckmaster observed,
"It would be hard indeed to find a worse service than could be done to the Christian faith than to prevent people from explaining and inviting an answer to the reasoned convictions that led them to question its truth."
320.62 Lord Sumner in a scholarly seeming judgment reviewed the history and pointed out,
"After all to insult a Jew's religion is not less likely to provoke a fight than to insult an Episcopalian's and on the other hand the publication of a dull volume of blasphemies may well provoke nothing worse than throwing it into the fire.
He went on at 461,
". . . Anti Christian writings are all the more insidious and effective for being couched in decorous terms. I think that the fact that their authors are not prosecuted while ribald blasphemers are, really shows that lawyers in general hold such writings to be lawful because decent, not that they are tolerable for their decency though unlawful in themselves. In fact, most men have thought that such writings are better punished with indifference than with imprisonment."
320.63 At 464,
". . . My Lords, with all respect for the great names of the lawyers who have used it, the phrase "Christianity is part of the law of England is really not law; it is rhetoric, as truly so as was Erskine's peroration when prosecuting Williams:
"No man can be expected to be faithful to the authority of man, who revolts against the Government of God." One asks what part of our law may Christianity be, and what part of Christianity may it be that is part of our law? CJ. Best once said in Bird v. Holbrook (2) (a case of injury by setting a spring-gun):
"There is no act which Christianity forbids, that the law will not reach: if it were otherwise, Christianity would not be, as it has always been held to be, part of the law of England;" but this was rhetoric too. Spring-guns, indeed, were got rid of, not by Christianity, but by Act of Parliament. "Thou shalt not steal" is part of our law. "Thou shalt not commit adultery" is part of our law, but another part, "Thou shalt love thy neighbour as thyself." is not part of our law at all. Christianity has tolerated chattel slavery, not so the present law of England. Ours is, and always has been, a Christian State. The English family is built on Christian ideas, and if the national religion is not Christian there is none. English law may well be called a Christian law, but we apply many of its rules and most of its principles, with equal justice and equally good government, in heathen communities, and its sanctions, even in Courts of conscience, are material and not spiritual.
320.64 At 467, ". . . I desire to say nothing that would limit the right of society to protect itself by process of law from the dangers of the moment, whatever that right may be, but only to say that, experience having proved dangers once thought real to be now negligible, and dangers once very possible or imminent to have now passed away, there is nothing in the general rules as to blasphemy and irreligion, as known to the law, which prevents us from varying their application to the particular circumstances of our time in accordance with that experience. If these considerations are right, and the attitude of the law both civil and criminal towards all religions depends fundamentally on the safety of the State and not on the doctrines or metaphysics of those who profess them, it is not necessary to consider whether or why any given body was relieved by the law at one time or frowned on at another, or to analyse creeds and tenets, Christian and other, in which I can profess no competence. Accordingly I am of opinion that acts merely done in furtherance of paragraph 3 (A) and other paragraphs of the respondents' memorandum are not now contrary to the law, and that the appeal should be dismissed."
320.65 Thus all Judges agreed;
(a) blasphemy is not criminal unless accompanied by fighting words;
(b) that fighting words contrary to Christian teaching are immoral and would be refused protection of the law and the courts;
(c) that Englishmen are not punishable for mere thought and so an expression of it ought not to be punishable;
But the majority took the view that past disobedience by the State to Christ's teaching is;
(a) an indication that the Court and the State are not bound by it;
(b) that if public policy is crystallised into statute and positivism the law allows breach of Christian teaching;
(c) secularism is not dangerous;
(d) mere ideas are not dangerous.
"It does not follow that unlimited licence to propagate views and theories at variance with broad principles of Christian morality, will be wholly unproductive of political effects. History lends no countenance to such a conclusion; and the proved efficacy of propaganda supports its teaching. In fact, it is not unlikely that Caesar, now that he has deliberately abandoned the task of securing for God the things that are God's, will find considerably greater difficulty than heretofore in securing for himself the things that are Caesar's. If that result should follow one of two courses must be pursued. Either the state must reassert its authority by means of an increase in the severity of the criminal law, and an abridgement of the liberty to express immoral or seditious opinions; or it must be content to pursue a policy of drift and concession to the forces opposed to it, which can only lead straight back to a set of poIitical conditions which will bear no small resemblance to the modified anarchy of mediaeval political society-without the redeeming grace of the spiritual elements in that society, which sprang from the deeply rooted religious faith of mediaeval men."
320.67 Court Plays With Fire. We must agree with Holdsworth except to point out that Mediaeval Society progressively modified the total anarchy of the political society of the Dark Ages.
1. Having held that Christianity is part of the law is mere rhetoric Lord Sumner said that it was not Christianity which abolished slavery and spring guns but Parliament, a piece of his own rhetoric since the Parliaments which abolished them were Christian.
2. In holding that the sovereign's heathen subjects must be governed by rules appropriate to them, he fell into the same trap set by Solomon's wives.
3. Having recognised that decorous language is a more insidious trap to the State, he allowed the State to fall into the trap.
4. In saying that Christians should be challenged, he served the Law so great a challenge it has been overwhelmed.
Thus the Court itself assisted, with knowledge of the danger, a process designed to destroy the court, a process by which the Law and society have been perverted, since every one of the objects of the Secular Society had been achieved in the Commonwealth a half century after their decision.
320.68 Part of Law of England. If it is not completely accurate to say Christianity is part of the Law of England, it is completely inaccurate to say that it is not part of it. Christianity provides, the rock, not the house; the mould, not the statue; the mutinied, not the structure; the spring, not the river; the touchstone, not the gold; the standard, not the product; the Law of the Law; the Law above the Law; the Law for the Law.
Christ is the cornerstone of religion; religion gives rise to morality; morality gives rise to law; religion, morality and Law protect one another, and make civilization possible.
320.69 Necessary. While the Law need not punish all irreligious, immoral or illegal conduct, it is necessary to punish what makes civilization impossible, and necessary for the Law not to help or protect irreligion, immorality or illegality: it is necessary for the law not to make amorality, opinion or falsehood equal to morality, authority and truth. The majority erred tragically not just in drawing the line of necessity in the wrong place, but,
(l) failing to perceive that while other religions and ideologies may have much truth in them, the empty house of secularism is an invitation to the Devil;
(2) toleration of Christian sects may be possible, but toleration of secularism is impossible.
320.70 Ship of State. Our legal ship has fine sails, good cordage in the rigging, a seaworthy hull and a well drilled crew, capable of weathering all storms, avoiding all reefs and making an accurate landfall with its cargo intact. However, as an experiment, the crew have thrown overboard the compass, so they cannot find the magnetic pole of Christ, the Charter of jurisprudence surveyed by Christian navigators over 2 millennia, the sextant, so they practice astrology not astronomy, and their captain, the Pope, so there is no authority aboard.
320.71 Star Chamber. Maitland in The Constitutional History of England at p. 263, observed of such a court that it is a court of Politicians enforcing a policy, a Court of Star chamber not a Court of Judges administering the Law. Hayek in Law. Liberty and Legislation at p. 4, observed that the Lawyer is now ignorant of the order he serves. For without Fear of God the elite can work the levers of the Law to their own benefit.
320.72 Decadence. From Bowman V the Secular Society onwards all the courts in the Commonwealth have gradually abandoned God: the Canadian decline we shall consider in Chs. 420 and 430.
320.73 Authority Must Obey.
"Nobody has a more sacred obligation to obey the Law than those who make it" (Sophocles) Crime is contagious: if the Government commits it then everyone is invited to commit it.
"When you break the Big Laws you do not get Liberty, you get the Small Laws". (G.K Chesterton)
320.74 Unrealistic Law. So now that the Law is separated from God it is separated from Reality: an unborn child may be killed because he or she cannot prove she is a person; homosexuality is healthy and normal in the eyes of the Court even if it is perverted and diseased, the State mocks the family, upon which the State itself is built.
320.76 Castle in the Air. Without the Divine Metwand we have Law that knows no Law. The Law now inhabits a Castle in the air
Holdsworth, History of Law of England
Kirk, The Roots of American Order
Lloyd, Jurisprudence
Smith & Weistub, The Western Idea of Law
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