Saturday, August 13, 2011

Blasphemy in "A History of the Criminal Law of England"

James Fitzjames Stephen, A History of the Criminal Law of England (London: MacMillan & Co., 1883) (Vol. II) at 470-476.

Stephen's discussion of blasphemous libel in his three-volume history of English criminal law occupies only a handful of pages, but it remains of interest due to his taking a position counter to the mainstream evolution of blasphemy law. After a very brief summary of some notable blasphemous libel cases such as Sedley, Taylor, Woolston, Hetherington, and more, Stephen turns his focus to discussing Coleridge's famous holding in the Pooley case that the criminal law should concern itself only with the style (tone/language) in which blasphemous statements are made, and not with their substance (in terms of orthodoxy). Under Coleridge's style/substance or manner/matter distinction, a temperate and carefully-phrased denial of Christ's divinity or in the validity of the Trinity would not have been cognizable by the criminal law. Although after Coleridge this view quickly became the leading doctrine of blasphemous libel in English law, Stephen takes a dissenting view: "[T]he weight of authority appears to me to be opposed to it. The cases cited all proceed upon the plain principle that the public importance of the Christian religion is so great that no one is to be allowed to deny its truth. The history of the offence confirms this view." (p. 475) Stephen goes on to argue that "To say that the crime lies in the manner and not in the matter appears to me to be an attempt to evade and explain away a law which has no doubt ceased to be in harmony with the temper of the times. . . . The[r]e are certainly strong reasons why the law should be altered. . . . [B]ut they are no reasons at all for saying that the law is not that which a long and uniform course of decisions has declared it to be." (p. 475-76) Although Coleridge's view has become settled doctrine now for well over a century, Stephen's 1883 book amasses several cases to support his view.

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