Mr Lord Chief Justice.
"Your conduct on the Bench, upon the recent trial, 'The Queen v. Hetherington,' for a religious libel, a nominal and an impossible offence, the fiction of fraudulent bigotry, has much increased the high esteem in which you have been always held by the public. Your Lordship's opinions on this impolitic, irreligious, and thoroughly infamous species of prosecution have oft-times been expressed with the integrity and high moral courage that have ever distinguished your public life. I never shall forget the manliness with which I heard you avow from the Whig Treasury Benches, in the House of Commons, in your place as Attorney General, your detestation of indictments for religious opinions; and the House hailed you when you fairly acknowledged your deep regret that, as Common Serjeant, you had been obliged, in obedience to your oath and to the law, to impose even the smallest punishment possible upon three men convicted by an ignorant Jury of a libel on the Scriptures; and you were still more cheerfully received when you expressed your joy at the liberation of the prisoners whom you had so unwillingly punished. There was one part of your speech that did not certainly satisfy me. I respect your sense of obligation to an oath; but when you punished men whom you conscientiously believed to be undeserving of infliction, and this 'in obedience to the law,' your Lordship might have reflected, that it was not Parliamentary, but Judge-made law--'Common-law,' as it is called; and you might have acted upon the principle that if a corrupt and ignorant Judge made a law to suit the prejudices of a brutal age, a pure and well-informed Judge might reverse that law in favour of an age more humane and more enlightened. I recollect with great satisfaction that when, in the case of Lord Langford, the Counsel, Mr. Thesiger, asked a witness (Mr. Nathan, a Jew) 'what religion he was of?' your Lordship expressed your strong displeasure; and, under your Lordship's sanction, the witness refused to answer the interrogatory, and treated both the query and the querist with the utmost contempt; and the whole Court and audience seemed strongly to approve of the result. In the recent trial your Lordship's conduct was a contrast to that of your immediate predecessors on the Bench, Lords Tenterden and Ellenborough, the last representatives of a most disgraceful school of political, prejudiced, corrupt Court Judges. You did all in your power to induce the Jury to acquit the accused. I am now credibly informed that the Attorney-General had the same object at heart; and having, intentionally, gone in a most slovenly and unimpressive manner, through his technical duty, he was abashed and mortified when he heard the verdict of guilty. Familiar as he must be with the extreme ignorance, stupidity, and corruption of Juries, on such occasions, he was still surprised at such a verdict. I am willing to give him credit for these common reports in his favour; but should the Government be so infatuated as to bring the defendant up for judgment, the country expects of you, my Lord Denman, that the sentence will be nominal, and that it will be accompanied by your reprobation of all such trials.
"If it be true that hope is the last passion that leaves a man, equally true is it that the spirit, the accursed spirit of religious persecution, is the last passion that man deserts, or is willing to abandon. I sincerely believe that if the alternative were put to a hundred dying men, at their last, moment of consciousness, at their last gasp of breath, whether they preferred their own future salvation or beatitude, or the persecution of man upon earth for conscientious differences of opinion on religious subjects, full ninety-nine out of the hundred would choose the latter, on the ground of its being the turnpike-road to the former, and from the inherent delight in the spirit of religious intolerance. Fanaticism is the primeval curse of our nature. From its first victim Abel, to the present hour, it has raged through the human race. Moral sins and physical or corporeal diseases in the course of ages wear themselves out, or can be cured by instruction or medical treatment; but the most foul, leprous, and crime-engendering of all maladies that flesh is heir to, fanaticism--call it if you please, bigotry or superstition--admits of no cure, and of little mitigation. If this hellhound were now let loose from the restraints of law, we should in one year have every gaol and dungeon full of prisoners, and in another, the fires and faggots of the olden times would be raging more fiercely than of yore, and more furiously in this country than in any other. Whatever Catholics might have been in the middle ages, there has been more of religious persecution in Great Britain and Ireland, in the last century, than in all the Catholic countries of Europe within the same period. On the Continent the spirit is on the wane; in England it is on the increase.
"My Lord Denman, in the very abstraction of our individual nature, and of the nature of society, a court of justice cannot take cognizance of opinions. Its functions are confined exclusively to facts. Can any two classes of things be more distinct and opposite? The one is fixed, the other perpetually varying. Law, cultivated reason and common sense have rescued subjects of opinion from judicial interference, except with respect to politics and religion, the two which of all others most need the exemption. The interference of courts of justice with religious opinions had immensely decreased, and it is now reviving; but it is in your Lordship's power to annihilate it by passings nominal sentence on the defendant. The effects or results of a fact are ascertainable; those of an opinion are but speculative and uncertain. There is not in existence, there never has existed, and probably never can exist, a religious opinion that has not been deemed blasphemous, and of a destructive tendency to morals and social peace, by its opponents, who, if they had been strong enough, have relied upon the arguments of torture and death, or punishments as severe as society would permit.
"My Lord, legism, or jurisprudence, are sufficiently understood to render it indisputable that punishments cannot be vindicatory or retrospective, and less than either, vindictive. All religious prosecutions seek only for revenge. The object of a legal punishment relates solely to the prevention of the offence. If a sentence against Mr. Hetherington cannot effect this object, it cannot be justified. Will a sentence alter his opinions? will it alter conscientiously that of any class or single member of society? and, above all, will it stop or check the dissemination of his doctrines? The two first points are nugatory; the last is defeated in its pretended object. All history and experience prove that persecution, let its form or degree be what it may, increases that which it is meant to destroy. Whether the tyrant be called Pope or Inquisition, Attorney-General or Court of Queen's Bench, the principle and the result are the same.
"Every religion, church, and sect, that exists or is defunct, in Europe and in Asia, from the earliest record, has had at its origin, and through its infancy, to encounter obloquy and persecution. The Jewish religion received animation and vigour from the contempt and cruelties of surrounding polytheists, and the Jews sought in one God a protection from the horrors which had been inflicted on them by the worshippers of many; and well did this atrocious people revenue themselves 011 their former persecutors, and this by assuming their own claim to the right of punishing men for differing in opinions. The progress of Christianity was accelerated by the Jews, in their attempts to crush it by inflicting an ignominious and most cruel death on an innocent individual, under that absurd fiction of blasphemy, in the foul name of which your Lordship is now called upon to punish, against your will, another innocent individual. If blasphemy has any meaning, its definition must be--'a resistance to a predominant priestcraft.' Every religion, at its commencement, is but a confluent mass of blasphemies to the previously-established religions; and persecution is the reverse of annihilation, Where would Protestantism have been but for its persecution by the Catholics, and vice versa? From the dawn of Protestantism in England, under Wycliffe, and the burning of the first Protestants by the priests, in the reign of the Hero of Agincourt (what a hero!) down to the death of Mary, English Protestants were tortured, burnt, hanged, and punished, and yet the religion spread. Throughout Germany the same effects proceeded from the same cause. Our English persecutions of the Catholics in Ireland have been long, incessant, and too dreadfully cruel to reflect upon, and yet Catholicism has increased under them. We have not one respectable sect in England that has not arisen in despite of persecution, and increased by means of it, and these, with hundreds or thousands of other instances (for history abounds with them), prove that persecution or punishment does not, and cannot, effect the object in view; and that, consequently, punishment cannot be justified by its only legitimate principle of justification--utility. It is madness to punish for an offence which must be increased by the very nature of the punishment. Formerly, in punishments for blasphemy, men, women, and children were burnt and put to every variety of torture, for the good of their souls--now, we substitute for the word soul, the phrase--'the security of society,' or other jargon equally nonsensical. The Court of Inquisition was, and is, wherever it exists, more honourable than the Protestant Court of Queen's Bench, for the Inquisitors tortured and destroyed for the sake of the soul, but our Courts punish only for the profit of the priest. The old plea, the impudent and barbarous plea, of 'Benefit of Clergy,' is annulled by law, and yet an indictment for blasphemy is nothing more or less than a process for the 'Benefit of Clergy.' Thus, my Lord, have I humbly attempted to prove that your punishment of this individual will be in strong and violent opposition to the principles, opinion, and feelings which you have avowed on the Ministerial Benches of the House of Commons; and if the Whig Administration is so infatuatedly base as to call the defendant up for punishment your Lordship will be in the unenviable position of passing a sentence, as Lord Chief Justice of England, against the nature, principles, and objects of which you have expressed little less than abhorrence in the character of Her Majesty's Attorney-General in the House of Commons. At that period, my Lord, you were the freely and most honourably chosen representative of one of the largest and most enlightened constituencies of Great Britain--the town of Nottingham--and your constituents expressed no dissatisfaction at your speech. Is there not a sympathy between Nottingham and other large, and populous, aud enlightened towns and cities, and between them all and the general population of the empire? I have likewise, my Lord, shown, to the best of my very humble abilities, as a legist, that any punishment inflicted on this individual, violates the only principle on which all punishments can be justified--the prevention of the offence--if it be one.
"What, in other respects, will be the effects of this brutal prosecution? Burn Mr. Hetherington alive,--slowly roast him, torture him by every device, hang him, quarter him, and stick his head on Temple-bar, and his quarters on the gates of four of our principal cathedral towns, as in all such cases used to be the practice of our most pious Christian ancestors in 'the good old times'--or let your Lordship pass the most lenient sentence on him, and what will be the result? Will any thing be proved, disproved, strengthened, or invalidated, by either mode of punishment? If divines or laymen argue upon the Scriptures in toto or in parts, en masse or in detail, could any of the disputants establish his point by arguing that Mr. Hetherington or Mr. Snookes, for the names are indifferent, was or was not in gaol, or that the sentence was six days' or six months' incarceration--how would the case stand syllogistically? A asserts that the Bible ought to be burnt--A is not prosecuted--ergo, the Bible ought to be burnt. B asserts that the Bible ought to be burnt--B is prosecuted--B is acquitted by the Jury--ergo, the Bible ought to be burnt. C asserts that the Bible ought to be burnt--C is prosecuted--C is found guilty--ergo, the Bible ought not to be burnt. Again, D, E, F, and G, are prosecuted for saying that the Bible ought to be burnt. They are all found guilty under different Judges, and their sentences vary from three, six, twelve, and eighteen months' imprisonment. Here the public mind is in utter confusion between the cases of A, B, and C, and between the ratios of punishment inflicted on D, E, F, and G, I have gone to the extent of the musical gamut. Ratios might be calculated by arithmeticians aud algebraists. Thus--'As burning the Bible is to the acquittal of B,--so is not burning the Bible to the sentence on D, E, F, or G." Really, my Lord, as a man of the most cultivated intellect, you must see the monstrous absurdity, the atrocious cruelty, of subjecting opinions on Scriptures to 'Trial by Jury.' If opinions on a book are to be brought before a Jury, so might its author. I speak in no disrespect of Scriptures, but I speak in utter disgust and abhorrence of bringing them before Juries. What, in fact, does a verdict of 'Guilty' or 'Not Guilty' amount to, in case of an opinion on the Scriptures? The ignorant Jury men unwittingly set themselves above the Scriptures, and tyrannise over the Deity himself. The impiety lies all in the Jury, and not in the accused. The trial my Lord, proceeds entirely on the conceded point that the Scriptures are the word of God; a word is an empty, unintelligible, worthless sound, except by the interpretation put upon it; and if the Jury will be the interpreters, they are the authors of the word, and usurp the powers of the Deity. God may say 'this is my word and commandment,' and a Jury replies, 'the substance utility, intelligibility of a word depend entirely upon the meaning attached to it, and we Jurymen will put and make all other men put what construction we please, upon it, under pains and penalties, so that the word is not yours, but ours.' A Defendant may argue, 'my construction is a matter between my conscience and my God.' The verdict replies, 'God has nothing to do with it; your construction is entirely a case between your conscience and us Jurymen, stock-brokers, bill-brokers, pawnbrokers, gambling-house-keepers, and, peradventure, keepers of houses of a still worse description.' My Lord Denman, the manly character of your mind will make you fearlessly grapple with this important subject, and will induce your Lordship to feel that I have as fearlessly and as honestly stated the merits of the case. Pause, my Lord, before you ruin, and almost torture a man, for whose defence you have expressed respect from the Judgment-seat, and this by a sentence for the nature and principles of which you have publicly and officially declared an abhorrence.
"Our laws, Lord Denman, lay down a principle that every man is presumed to be acquainted with the business, profession, or study to which he belongs, or to which he has devoted himself. The converse--a most rational converse, is that he is unacquainted with what he does not belong to, or has not studied; or, in plain terms, that he is unacquainted with that of which he knows nothing. Sir Isaac Newton would have been a most ignorant Juryman upon a case resting upon the details of business in the butter trade of Cork; and a Mr. Jones, in that trade, would be an equally ignorant Juryman on a case involving the complex observations and abstract calculations of Sir Isaac's Observatory. Shakspeare, as a Juryman, would have been puzzled to determine a disputed point of commerce; and a tradesman would be as equally perplexed in deciding a point upon the machinery of Arkwright, or the steam-engine of Watts. In the present case, a man named Haslam, (but the name is immaterial, for I apply myself to abstractions and not to individuals,) has devoted himself to the study of a subject. He is evidently a man of strong mind, of great knowledge, and of the most honest intentions. On many points I differ with him, but individual or public difference is not the case at issue. His very able work is submitted, not to the public mind, but to 'Trial by Jury;' and its merits or demerits are determined upon by merchants, brokers, tradesmen.
"Our laws, Lord Denman, lay down a principle that every man is presumed to be acquainted with the business, profession, or study to which he belongs, or to which he has devoted himself. The converse-a most rational converse, is that he is unacquainted with what he does not belong to, or has not studied; or, in plain terms, that he is unacquainted with that of which he knows nothing. Sir Isaac Newton would have been a most ignorant Juryman upon a ease resting upon the details of business in the butter trade of Cork; and a Mr. Jones, in that trade, would be an equally ignorant Juryman on a case involving the complex observations and abstract calculations of Sir Isaac's Observatory. Shakspeare, as a Juryman, would have been puzzled to determine a disputed point of commerce; and a tradesman would be as equally perplexed in deciding a point upon the machinery of Arkwright, or the steam-engine of Watts. In the present case, a man named Haslam, (but the name is immaterial, for I apply myself to abstractions and not to individuals,) has devoted himself to the study of a subject. He is evidently a man of strong mind, of great knowledge, and of the most honest intentions. On many points I differ with him, but individual or public difference is not the case at issue. His very able work is submitted, not to the public mind, but to 'Trial by Jury;' and its merits or demerits are determined upon by merchants, brokers, tradesmen and jobbing peculating Jurymen called 'Tales.' as totally ignorant of Mr! Haslam's studies and works, as he most probably is of their different lines of traffic. Is this a test of the merits of the case? Is this any barometer of the truth of the Gospel, of public feeling, or of the intelligence of our population?
"My Lord Denman, the Attorney-General, tried, in the usual slang of his profession, or rather of his office, to attach moral imperfection and social dangers to speculative points of theology-to points of creed. We have now on our Bench, including Ireland and Scotland, Catholic Judges, Judges belonging to the Church of England, to the creeds of the Baptists, Anabaptists, Unitarians, and to the no-creeds of the Deists, and yet what barrister, attorney, or client, ever complained of a Judge on account of his creed or his construction of the Scriptures? In Ireland we have Catholic Judges, in Scotland Presbyterian, and in England Judges of the Clutch, and of every dissenting sect, and yet, when in 'Term time,' a new Trial is moved for, on account of a misdirection of a Judge, who ever heard of the misdirection lying attached to the Judge's creed? The Solicitor-General of Ireland is a Catholic, the Attorney-General of England is a Presbyterian (if he has any religion at all), and the Solicitor-General of England is of the Church (the refuge of all sceptics), and what does this amount to with respect to the discharge of their duties? Lord Chancellors Shaftesbury and Thurlow, and very many others, were avowed Deists, and yet in moving the House of Lords to set, their judgment aside, their creeds or opinions were never put upon the briefs.
"Let me suppose, my Lord, that our most pious Monarch, George the Third, had indicted David Hume, the most perfect, of unofficial characters; or Adam Smith, a great benefactor of his species; or Edward Gibbon, the most illustrious of historians, for their Atheism or Deism; and let me state the fact, that the pious Monarch bestowed upon them all very good, and, in one instance, very confidential employments, what difference does this make? in either case the men, their public functions, and their doctrines, would have been equally at issue with public opinion at the present day. The merchant, in reading Adam Smith; the philosopher, in studying the superior works of Hume; and the scholar, in tracing Gibbon's magnificent outline and correct details of Roman history, never condescend to inquire whether the authors were patronised by a pious or an impious monarch, or whether they were indicted by a Presbyterian, Episcopalian, or Atheistical Attorney-General--the slave of an order from the Secretary of State's office. This species of scrutiny expired years ago, and why should it be revived?
"My Lord Chief Justice Denman, the eyes of the country, and of foreign countries, are upon you. The issue of your sentence is the same, except to the individual; for, liberate him, you respond but to the voice of all enlightened men throughout Europe; incarcerate him, and by passing an inhuman sentence upon an innocent man, you enforce a judgment that you have promulgated in Parliament to be abhorrent in principles and feelings, and this will produce a powerful redaction.
"PUBLICOLA."
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*** END OF THIS PROJECT GUTENBERG EBOOK THE TRIAL OF HENRY HETHERINGTON ***