網頁圖片
PDF
ePub 版

to Christianity cease.1 And he said torture was contrary to the laws of God; and that the law of weights and measures was grounded on the law of God.2 Hale, C. J., said, on a trial for blasphemous libel, "To say that religion is a cheat is to destroy the frame of society, and the Christian religion being a part of the constitution, to say that it is an imposture, is to speak against the laws of the land." Lord Raymond, at a later date, repeated the doctrine, but taking care to add a proviso, that the law should not extend to the disputes between learned men on controverted points of religion. Lord Hardwicke recognised a like doctrine.5 Lord Mansfield said the essential principles of revealed religion are part of the common law. Lord Kenyon again followed the same view, and said the Christian religion is part of the law of the land." Lord Ellenborough, referring to these remarks, said that they showed, that the Christian religion was the law of the land and must be protected as the law.8 And Blackstone said the same.9 And Lord Eldon said the same when dealing with the right of Dissenters as to a charity.10 The same judge said the court would not protect copyright in book which contradicted the Scriptures. These views led Lord Eldon to refuse to recognise copyright in Byron's Cain," and "Don Juan," also in "Wat Tyler,"12 and to disclose views as to the relations between courts of law and the press not since acquiesced in.

[ocr errors]

11

Though it is thus said on high authority, that Christianity, or the law of God, is part of the law of England, it is obvious, that all that is meant is something very different

humours or human corruptions, wits, or wills." Per Keble (4 St. Tr. 1307) "The law of God is the law of England; so is the law of reason."-Ib. 5 St. Tr. 172. "Whatsoever is not consonant to the law of God in Scripture is not the law of England. The laws of England are purely the laws of God.-Ib. 5 St. Tr. 238. "We have no law practised in this land, but is the law of God.”Ibid.

1 Calvin's Case, 7 Rep. 17. 2 2 Inst. 41. 3 Taylor's Case, 1 Ventr. 293; 3 Keb. 607. 4 R. v Woolston, 2 Str. 832. 5 De Costa v De Vaz, 2 Swanst. 490. 2 Camp. C. JJs. 513; 16 Parl. Hist. 319. ▾ Williams's Case, 26 St. Tr. 704; Woolston's Case, 2 Str. 834. 8 R. Eaton, 31 St. Tr. 950. 9 4 Bl. Com. 59. 10 Bedford Charity, 2 Swanst. 527; Att. Gen. v Pearson, 3 Mer. 399. 11 Laurence v Smith, 1 Jac. 474. Southey Sherwood, 2 Mer. 435; Murray v 7 Campb. Ch. 659.

Benbow, 1 Jac. 474 n;

12

from what the words imply. Christianity is a system of doctrines, mainly deduced from the Holy Scriptures, intended to influence the conduct of man in all ages and conditions, but in a manner altogether different from that which the municipal law adopts. Christianity does not profess to contain any compulsory methods, or to act with the aid of temporal sanctions. It relies on the future, the distant, and the unseen, rather than the present and the visible. It searches the motives and the feelings, while the municipal law deals almost exclusively with outward acts. But the essential differential quality is this, that the municipal law can and does enforce its rules by sanctions more or less cogent, such sanctions beginning and ending with the present life,1 while Christianity has no temporal sanctions, and relies on moral and spiritual restraints alone to promote its aims. The domain of the one is far-reaching and infinite: that of the other is limited and temporary. The one fills the mind with thoughts, feelings, and contemplations which influence the conduct in a more durable and effective manner. The other, dealing only with the present, cares little or nothing for the mental state, provided the sanction takes effect-a sanction which only inflicts pain, or deprives the individual of life, property, or liberty. The things also which the one law cares for are petty in comparison with the vast range of the other. As far as the heaven is above the earth, so far is the divine law above the municipal law, or, to quote Fortescue, "as the moon is to the sun, so are human laws to the divine." The aims and objects of municipal law are ephemeral and weak, and often satisfied with mere forms. Life, property, reputation, a fair trial, free speech, a share in self-government, are objects well worthy of being contended for, and the radical idea of the law, namely, impartiality towards all alike, lends a dignity and elevation to its practice. But there are objects greater than these, which can be promoted without the coarse

"2

1 The ancient laws of Zoroaster seemed to stand out beyond all other laws in boldly pressing its sanctions beyond the present life. The person who broke a contract or told a lie was sentenced to 300 lashes, and the same number of years in hell. And for nonpayment of school fees 900 years in hell were added to 900 lashes. -D'Ang. Zend. Av. 286. 2 Fortesc. De Nat. b. i. c. 3. I

VOL. I.

dissuasives of bodily pain, or compulsory deprivation of property, namely, by reliance only on rewards and gratifications which have no immediate or tangible existence, and feelings which are invisible and incommunicable, yet which irradiate all surrounding conditions and circumstances of life. While the municipal law makes selfishness a science, the divine law, passing from that engrossing pursuit, leads to a higher level, where most of the processes are reversed. the machinery is changed, and a consciousness of dignity and grandeur is acquired which no human law can awaken or command.

Divine law not enforced as municipal law.-When it is said, therefore, that the divine law or Christianity is part of the law of England, this is wandering from the true view. The municipal law does not and cannot, and it would be impious for it to attempt to, enforce most parts of the divine law, and it can only punish in an imperfect manner the violation of a small part of it. Out of the Ten Commandments, which deal with the leading tendencies and proclivities of human nature, not one of them can be enforced by the municipal law, except in the feeble manner of punishing the delinquent after the wickedness has been committed; and even to that slight extent, the sixth and eighth commandments, those aimed against murder and larceny, may be said to be the only commandments which are followed up closely. All the divine commandments

1 The Siamese, the Buddhists, the Talapoys of Laos, the Banyans and Parsees, and Triptolemus had some golden rules resembling the Ten Commandments.

Jewish writers record that certain short precepts of moral duty, known as the precepts of the sons of Noah were really enjoined by God on the parent of mankind, whether preserved by tradition, or by an innate moral faculty, constantly discerned by mankind. These were prohibitions against idolatry, blasphemy, murder, adultery, theft, rebellion, and cutting a limb from a living animal.-3 Hallam, Lit. Hist. 146.

2 WARBURTON says society, i.e. the law, cannot enforce above onethird part of moral duties, and even that third imperfectly. It can punish, but cannot reward.-4 Warburton, Works, 33.

PLUTARCH said goodness moves in a larger sphere than justice: the obligations of law and justice reach only to mankind, but kindness and beneficence should be extended to creatures of every species. Plut. Cato Cens.

ARISTOTLE said that philosophy enabled him to do, without being

have a wide and far-reaching effect on the soul and on the secret thoughts, but the municipal law only singles out a few of the most glaring and conspicuous accompaniments of a depraved heart. It cares nothing for murdering the mind and its finer feelings by lies and refined cruelties of speech and writing, but only for murdering the body, for, as Hale says, "Secret things belong to God." Nothing for stealing many of the appliances and cherished mental possessions of another, but only for stealing a few chattels and visible signs of property. The other divine commandments shrink into the very smallest dimensions in the hands of the municipal law. The injunction to worship one God, the prohibition of the worship of graven images, and of taking the name of God in vain, the injunction to keep the Sabbath-day, to honour one's parents, the prohibition of adultery and perjury and covetousness are feebly reflected in the municipal law. Those who recall to mind the place assigned in the latter law to the punishment of blasphemy and profanity, the enactments against working and amusements on the Lord's Day, the poor law statutes as to neglecting to support indigent parents, the partial remedies given in some cases of adultery and perjury, the total blank as to covetousness, will appreciate at a glance how little the divine law can be said to be incorporated in the municipal law of England. The municipal law has no faculties to comprehend the heights and depths of the divine law. The Sermon on the Mount meets with a feeble response or recognition throughout the whole length and breadth of the statutory and common law. When the exigencies of argument and the necessity of devising some means of reckoning loss or damage requires the law to form an ideal for comparison, the highest legal speculation cannot soar above the standard of a reasonably prudent but mostly selfish man, that is to say, a man not indeed inclined to give vent to ungovernable passion, and not unwilling to hear both sides, but nevertheless a man always acting from some prudential consideration-not apt to

commanded, what others did from fear of the laws.-Diog. Laert. Arist.

The code of King Alfred begins with a translation of the Ten Commandments, which he uses as the keynote for his own edicts as to the lex talionis, &c.—Anc. Laws Eng.

make gifts-careful of his money-in no case given to take more care of others than of himself-jealous of his wife's or child's honour, and entitled to kill an adulterer if detected in the act-one bound to carry out his contract, whether wise or unwise, but in many cases only if it be made in writing-one who pays for an indigent parent or child just enough to sustain life-one not bound to feed the hungry or clothe the naked, except only where the destitute is a child of which he has undertaken the custodyone not bound to observe any forms of civility whateverone entitled to amass as much property as he can, and often to slay any man in the act of robbing him of it—one repudiating all feelings of gratitude1-one not bound to do any generous or friendly act, or to risk his life to save another one entitled to drown his neighbour to save his own life-one entitled to use any species of exaggeration or subterfuge, or meanness, in order to drive a bargainone entitled in all circumstances, and with little discrimination, to kill another in self-defence-one not restrained in the indulgence of the most odious passions, and vices, envy, malevolence, ingratitude, evil-speaking, lust, and insolence. These and such like infirmities, clinging to the normal man, the law is powerless to restrain, and generally exempts from blame. And though for some collateral inquiries a higher standard is sometimes remembered as being possible, yet such standard seems rather to be viewed

as erratic.

Blasphemy as part of municipal law.-These considerations show how far from correct the saying is, that the divine law is part of the law of England. The two laws are essentially diverse; they move in different orbits, and address different sides of the same human nature. The only occasions on which the doctrine prevails is, when cases arise in which a test is required for measuring the

1 The ancient Persians punished criminally the vice of ingratitude, which seemed to consist in not returning favour for favour.-Xen. Mem. b. ii.; Xenoph. Cyrop. And a Roman freedman was punishable summarily for ingratitude to his patron.-Petit. fol. 51, tit. 8; Wood's Instit.

ANACHARSIS, the intelligent foreigner of his day, laughed at Solon for attempting to restrain avarice and injustice by laws, for, like spiders' webs, they would only entangle the poor and weak, and let the rich and powerful escape.-Plut. Solon.

« 上一頁繼續 »