Monday, March 19, 2012

Bowman v. Secular Society (1917)

Bowman v. Secular Society, [1917] A.C. 406. (UK House of Lords)

Bowman is one of the most important law and religion cases in the history of England. The case conclusively established two key points: (1) Blasphemous libel consists only in scurrilous or profane attacks on Christianity, not in temperate or reasoned criticism (thus resolving the debate between Coleridge and Stephen in the former's favor); and (2) A denial of the truth of Christianity does not render a person or organization unable to claim the benefit and protection of the civil law (thus overruling Cowan v. Milbourn (1867) L.R. 2 Ex. 230 and the famous statement in that case that "a thing may be unlawful, in the sense that the law will not aid it, and yet that the law will not immediately punish it.")). The five separate opinions are lengthy but contain a valuable exposition and analysis of the history of blasphemy in English law.

The facts of the case are straightforward. In 1908, a man named Charles Bowman died. His will bequeathed a portion of his estate to the Secular Society Limited, an association incorporated under the Companies Acts with the stated object 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 super-natural belief, and that human welfare in this world is the proper end of all thought and action." Bowman's next of kin disputed the validity of the gift to the Society, arguing that the objects of the Society were unlawful insofar as they constituted a blasphemous libel and therefore the gift was contrary to public policy and invalid.

The case was heard before five members of the House of Lords.

Lord Finlay began by examining in detail the purposes of the Secular Society as contained in the group's memorandum of association. He concluded that as a whole "[t]his amounts to a negation of all religion, including, of course, the Christian religion, as governing human conduct." (p. 420) He stated that the core issue in the case was "[i]s a legacy in favour of a society which exists for such a purpose enforceable by English law?" (p. 420). In the course of his analysis, he dispensed with the argument that the Society's goals constituted blasphemy: "I think we must hold that the law of England on this point is the same as that of Scotland, and that the crime of blasphemy is not constituted by a temperate attack on religion in which the decencies of controversy are maintained." (p. 423) Finlay then turned to a discussion of Cowan v. Milbourn and Briggs v. Hartley. He concluded that "[t]he authority of these two decisions has never, so far as I am aware, been questioned in any later case" (p. 426) and that "[i]t has been repeatedly laid down by the Courts that Christianity is part of the law of the land" and that this "is quite sufficient reason for holding that the law will not help endeavours to undermine it." (p. 428) Thus, Finlay concluded that there was "a definite rule of law to the effect that any purpose hostile to Christianity is illegal" and that therefore the Society could not benefit from the gift. (p. 432)

Lord Dunedin agreed with every other Lord hearing the case that the crime of blasphemy requires profane or irreverent attacks. On the more contested issue relating to whether the Society could receive the money if its stated goal was to criticize Christianity, he argued that the Society should be treated just as if it were an individual about to receive a bequest who could in theory use the money for both legal and illegal goals: "If the legacy were due to an individual, the executor would not be heard to discuss the probable uses to which the legatee would put the money. I do not think he can do so in the case of the society. For after all . . . there is no reason why the society should not employ the money in paying its office rent." (p. 435-36). Thus, Dunedin concluded the Society should receive the money.

Lord Parker of Waddington stated that the common law "takes no notice whatever of the donor's motive in making the gift or of the purposes for which he intends the property to be applied by the donee" and that "[a] gift at common law is never executory in the sense that it requires the intervention of the Court to enforce it." (p. 436) He then conducted a long and thorough analysis of whether the Society should be considered a trustee and thus held to stricter standards before concluding that it should not. On the issue of blasphemy, Lord Parker agreed with the others that "to constitute blasphemy at common law there must be an element of vilification, ridicule, or irreverence as would be likely to exasperate the feelings of others and so lead to a breach of the peace." (p. 446) He went on to hold that although the Society's goals were "no doubt, anti-Christian", that there was nothing unlawful or contrary to public policy in those goals. (p. 451)

Lord Sumner argued that "the law must presume that what is legal will be done, if anything legal can be done under [the Society's] memorandum [of association]." (p. 453) Sumner conducted a long analysis of the history of blasphemy in English common law and concluded "there is no instance recorded of a conviction for a blasphemous libel, from which the fact, or at any rate, the supposition of the fact, of contumely and ribaldry has been absent" (p. 460). After analyzing these and other authorities, he stated that "the phrase 'Christiantiy is part of the law of England' is really not law; it is rhetoric" (p. 463) and that therefore the Society was a lawful recipient of the gift.

Last, Lord Buckmaster also rejected the idea that the Society's goals were necessarily blasphemous because they involved a denial of the Christian religion. "To do so would involve the conclusion that all adverse critical examination of the doctrines of Christianity--even though it was conducted with the utmost reverence--was a blasphemous publication . . . It would, indeed, be hard to find a worse service that 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." (p. 470) The Society's goals were thus not illegal or unlawful.

The effect of the separate opinions was that all five of the Lords agreed that blasphemy required an element of irreverence or profanity, and four of the five Lords held that Cowan should be overruled.

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