CH. XXIV. be punishable by fine up to 100 marks or imprisonment up to a year, or if it is committed by an act the fine may be 1,500 marks, and the imprisonment two years. No definition of the offence is given in this Article. By Article 186 it is provided that "whoever asserts or publishes a fact relating to another which has a tendency to bring him into contempt or to dishonour him in public opinion, is, unless the fact "is notoriously" (erweislich) "true, punishable as for insult," -the punishment is fine and imprisonment up to a year in general, and a higher fine and imprisonment up to two years when the insult is public or is effected by the publication of writings, pictures, or representations. A subsequent Article (192) provides that proof of the truth of a fact alleged or published is not to exclude punishment for an insult under Article 185, if the existence of insult is established either by the form of the affirmation or publication, or by the circumstances under which they occur. I suppose that the result of the two enactinents would be that if A were to say of B, truly, "You committed theft at such a time and place,” he would, under Article 186, be justified by showing the truth of his assertion; but that if A called out "Thief" after B in the street simply for purposes of insult he would be liable to be punished under Article 185. Provision is made by Article 187 for an increased severity of punishment if the matter published is false to the knowledge of the offender. Article 193 protects unfavourable judgments upon scientific, artistic, and professional performances; communications made in the exercise or for the protection of rights, or the protection of legitimate interests; reproofs and censure by superiors to inferiors; official reports or judgments by a public officer; and similar cases, unless the form of the communication or the circumstances under which it is made show the existence of insult (Beleidigung).

It is remarkable that by Article 189 the publication of facts known to be false to the prejudice of the reputation of a deceased person is punishable on the demand of a parent, child, widower, or widow of the deceased.

1

"Mittels einer Thätlichkeit begangen wird." "Thätlichkeit," I suppose, corresponds to the French "voie de fait," which, though not exactly confined to an assault, commonly means an assault.

GERMAN LAW AGAINST SOCIALISM.

395

Besides these provisions a very stringent law was passed CH. XXIV. on the 21st October, 1878, "against the generally dangerous efforts of Social Democracy." This law prohibits (Art. 1) societies "which by social, democratic, socialist, or communistic "efforts aim at the overthrow of the existing order of government or society," or in which the same effects come 2 to light "in a manner which endangers the public peace particularly the harmony of different classes of society."

By Article 11 publications of the same character (the words of the definition just given are repeated) are forbidden, and periodicals of which a single number is forbidden may be suppressed. Various administrative provisions, which I pass over, are contained in the law as to the extent and effect of the prohibitions to be imposed. By subsequent Articles (17-20) the infringement of these prohibitions is punished by various terms of fine and imprisonment.

From this comparison of the laws relating to what may in one word be called sedition in three great nations it seems to follow that the law of France is by far the most severe, and the law of Germany more severe than that of England; but the great and striking peculiarity of the law of England lies in its historical character. It was worked into its present form by a process which lasted for at least 150 years, and of which the history is traceable for a much longer time. That process was hardly aided by the legislature at all, and such assistance as the legislature did give was afforded in such a way as to be wholly unintelligible to a person unacquainted with the history of the common law and the decisions upon it. It is still more worthy of remark that though the law of England, if used in a stringent manner, might be at least as severe as the law of Germany as embodied in the Strafgesetzbuch, it has in practice become almost entirely obsolete, so far as press offences are concerned, for a period of about fifty years.

1

"Gesetz gegen die gemeingefährlichen Bestrebungen der Sözial-democratie."-P. 197.

2 "Zu Tage treten."

396

OFFENCES AGAINST RELIGION.

CH. XXV.

CHAPTER XXV.

OFFENCES AGAINST RELIGION.

OFFENCES against religion can hardly be treated as an actually existing head of our criminal law. Prosecutions for such offences are still theoretically possible in a few cases, but they have in practice become all but entirely obsolete. The history of the subject is, however, of the highest interest, connecting itself, as it does, with several of the most important passages in our general history, besides which it throws light upon several matters to which their due importance has hardly been attracted by those who have written the history of political and social events.

The history of the Ecclesiastical Criminal Law has some points of resemblance, but many more of contrast, to the history of the ordinary criminal law. The ordinary criminal law always has been and still is recognised as an indispensable part of the institutions of the country, and the history both of its proce-dure and of its substantive provisions is a history of the improvement of definitions, and the adjustment of institutions to social changes. The improvements have (as the earlier part of this work clearly shows) been slow and imperfect, but in the aggregate they have been considerable, and if slow their progress has been uniformly in the same direction. The history of the Ecclesiastical Criminal Law, on the other hand, has for several centuries at all events been a history of decay. By a variety of provisions more or less distinctly and openly intended to diminish its importance, it has been rendered practically obsolete and ineffectual. I will try to give the history first of its development and then of its fall.

POSITION OF CLERGY BEFORE THE CONQUEST.

397

Probably the clergy were never more powerful in any CH. XXV. time or country than they were in England before the Norman conquest. 1 Civil and ecclesiastical legislation went hand in hand. Nearly every set of secular laws enacted by any of the early English kings was coupled with an ecclesiastical code, or contained ecclesiastical provisions: the bishop and the earl sat side by side in every county court. Heresy and schism were alike unknown, and the ecclesiastical censures which the clergy had it in their power to inflict furnished a sanction to their discipline which the whole population, from the highest to the lowest, regarded with awe.

At the Norman conquest a great change was introduced into this state of things, as appears from what has been described as the "2 one authentic monument of William's juris"prudence." This was the law by which he separated the spiritual from the temporal courts. This enactment recited that the ecclesiastical law had previously been ill administered, that for the future no bishop or archdeacon "de legibus episcopalibus amplius in hundret placita teneat, nec causam quæ ad regimen animarum pertinet ad judicium secularium “hominum adducant, sed quicunque secundum episcopales 'leges de quâcunque causâ vel culpâ interpellatus fuerit, ad "locum quem ad hoc episcopus elegerit vel nominaverit veniat, ibique de causâ vel culpâ suâ respondeat, et non se"cundum hundret, sed secundum canones et episcopales leges "rectum Deo et episcopo suo faciat. Si vero aliquis per superbiam elatus ad justitiam episcopalem venire contempserit vel noluerit, vocetur semel, secundo et tertio; quod si nec sic ad emendationem venerit excommunicetur et si opus fuerit ad hoc vindicandum, fortitudo et justitia regis "vel vicecomitis adhibeatur." Such was the origin of the Bishops' Courts which still exist, and which have played so prominent a part in some stages of our history.

1 See, e.g., laws of Cnut, Thorpe, i. 358-376, especially IV. De reverentia sacerdotibus præbendâ; VII. De conjugiis prohibitis; XIV. De Dei juribus festis et jejuniis conservandis; XV. De Die Dominico; XVIII. Pia exportatio ad confessionem et poenitentiam; XXI. Ad Deum ex intimo colendum et fidem; XXIII. Ut exitalia fugiant; XXIV. Et inter hæc stuprum. See, too, the laws of Alfred, Thorpe, i. 36-43. Many others might be mentioned. Nearly all the laws, in fact, contain more or less of a religious element.

2 Stubbs, Constitutional History, i. 276. The "Carta Willelmi is given in Thorpe's Ancient Laws, i. 494-496; also in Stubbs's Charters, p. 85.

398

CH. XXV

CHARTER OF WILLIAM I.

This memorable measure must have had two sets of effects. On the one hand, it is impossible to imagine a stronger assertion by the King of his unqualified sovereignty. The title of the document is "Carta Willelmi," and its style is as follows:"W. gracia Dei Rex Anglorum R. Bainardo et G. de Magna "Villa, et P. de Valoines ceterisque meis fidelibus de Essex "et de Hertfordscire et de Middlesex salutem." After reciting former abuses, it adds: "Communi concilio et consilio "archiepiscoporum et episcoporum et abbatum, et omnium "principum regni mei [episcopales leges] emendandas judi"cavi. Propterea mando et regia auctoritate præcipio quod," &c. There is not a word in it which suggests that any other authority was needed for the enactment than his own will, though he recites the advice of the ecclesiastical authorities.

On the other hand, although the King in this unquestionable way asserts his supreme authority over the clergy, he gives to them complete independence in their own sphere. Every one is to answer when the bishop requires him to do so, and if he refuses, the bishop's authority is to be supported by the sheriff. It is, however, most important to observe that no power to fine or imprison or otherwise to inflict temporal loss is conferred upon the bishop; the sheriff is to help him in case of need, but the bishop can inflict only spiritual censures. As necessarily incidental to this, the bishops must have obtained by this Charta full control over the procedure of their own courts, and a separation from the secular influences which the habit of sitting in the ordinary hundred courts would undoubtedly have exercised upon them. In early times the court is the substantive, the law the adjective, and the establishment of a separation between the ecclesiastical and temporal courts, involved, of necessity, the introduction of that. peculiar version of the canon law which still, in a certain sense, and in certain cases, survives in this country. I do not propose to try to relate at length the history of the ecclesiastical courts, or that of the struggles between the clergy and the crown, in which Becket is the most conspicuous figure. I may, however, refer to two or three leading instances in which the legislature recognised the ecclesiastical courts, and so gave the character of coercive law to the canon law as