have supplied them with the necessary capital. In America, in France, in every region where iron is made, the same circumstances prevail. Railway construction, an artificial hectic stimulus of some sort, has been applied to production, and as that ceases to act, furnaces, mills, manufactories of all kinds are compelled to cease work. Lower wages cannot at once nor for a very long time adjust the discrepancy thus created, and the banker who lends on plant and buildings at such times as these is but too likely to find his security valueless. For our own country the prospect is one of a great increase in the number of the unemployed, a great depreciation in the value of this class of property, and, ultimately, a large exodus of population unable to obtain a living at home.

Much the same conditions exist in the food-producing and distributing industries. It is a common saying in the City that there is at the present time no trade so bad as the iron trade, except the grain trade, and that the cotton industries are worse than either. In grain the situation is beyond question bad, and from substantially the same causes as those that have beaten down the shipbuilding and iron trades. For some years a race has been going on between the United States, the Australian Colonies, and India in the production of wheat to supply the deficiencies of Europe. At first enormous profits were realised all round, and these profits drew adventurers in larger and larger numbers into the wheat-growing industry, with the result that the production is now considerably beyond the wants of the consumer, consequently prices have been falling until they have reached a point that renders the trade unprofitable to all concerned. The farmers of the United States in America, the Punjab peasant, and the Australian squatter, are all alike possessed of an article which they cannot sell at a profit. We are told that in Chicago it no longer pays to send wheat forward, that it would be better for the Western farmer to use his surplus stock for fuel, as he has had to do once or twice before, rather than sell it. He can only forward it to Europe if the railways consent to carry it for less than enough to pay working charges. All this will right itself in time, no doubt, and in these days of rapid change, of instantaneous intercommunication, it may right itself sooner than pessimists anticipate; but the immediate outlook is none the less unpleasant because that may be so.

We might prolong this survey in many directions, but enough has been said to indicate the causes at work in producing the gloomy feeling now prevalent in all business circles. Strange to say, this feeling has hitherto been accompanied by the most remarkable calm in the money market. In former times when credit has been bad and trade conducted at a loss, the charges for money have risen in proportion to the risks run, but no such thing happens now. "Money" has been " cheap" and continues so to a degree rarely or ever visible

before. And not only is it cheap but it tends to accumulate at the points where we should imagine it would become scarce. In New York, for example, there has recently been a steady increase of funds belonging to the banks, although the current charges for loans have been as low as in London. Here also although gold has of late been exported the demand is so small that the discount rate on the finest class of bills has been under 3 per cent. for months, and in Paris the market is never ruffled by the losses that fall on merchants and investors of all descriptions. We thus have ease in the money markets accompanied by a condition of business that has never before prevailed in any great community without leading to great convulsions in credit. From one point of view this fact is reassuring. It enables us to hope that people have grown wiser and that we may work through the present depression without losing our heads. On the other hand, it is impossible to forget that the "easy money" of European money markets is to a great degree attributable to the judicious manner in which the Government of France has used the printing-press. The note circulation of the Bank of France is a skilful credit-engine which may, which must, overstrained as the Government now proposes it shall be, one day break down, and when it does so we may expect to pay for the quiet markets we have thus far enjoyed.

But little space is left for a word on the stock markets, and it is perhaps just as well. They are as cheerless as mercantile affairs in general. Loss has been piled on the top of loss until many have begun to despair. Business has been bad on the Stock Exchangè for a long time and shows no signs of mending. It cannot do so while trade grows worse in so many directions, and the position at present was pithily summed up by a market jobber with the remark that, in 1882 the Stock Exchange had lived by faith, in 1883 in hope, and that in the current year it might subsist on charity. The general public, however, has lost less by the depreciation which has taken place in foreign bonds and in American railway stock, than at any former period of depression; partly because it has had less money to lose, speculation has been reduced and the markets have been now left to their own devices. For all that, the losses have been great, and we have not yet seen the end of them by any means. As a whole therefore, and look where we will, the future is not cheering. Men continue to be afraid of they hardly know what, the losses of this firm and that in high repute continue to be the talk of the market-places, and failures, however heavy, astonish nobody. The promise of a good harvest in this country might revive hopes, but more than one harvest will come and go, we fear, before the promise of business is as encouragingly bright as it appeared to most men in the spring of 1880.

January 29, 1884.

THE

FORTNIGHTLY REVIEW.

No. CCVII. NEW SERIES.-MARCH 1, 1884.

BLASPHEMY AND BLASPHEMOUS LIBEL.

THERE are strong and obvious objections to criticisms by judges on each other's judgments, but I think that there are some exceptions to the rule. One of these occurs when the interest and importance of the matter adjudicated upon is rather moral and historical than strictly legal, and when the practical object of the criticism is not to take one side or another in a controverted matter, but to suggest the best means of dealing with what may be regarded as an admitted blemish in the existing law. In such cases the expression of a difference of opinion does not involve anything approaching to censure or to want of respect, and is, as it seems to me, as consistent with the deference due to a colleague, who is also primus inter pares, as it is with long and uninterrupted personal friendship.

The justly celebrated summing-up of Lord Coleridge in the case of R. v. Foote and Others, raises questions which I think fall within this principle. With the sentiment which pervades the summing up I cordially agree, and I admire as much as any one the manner in which it is expressed. My only objection to it is that I fear that its merits may be transferred illogically to the law which it expounds and lays down, and that thus a humane and enlightened judgment may tend to perpetuate a bad law by diverting public attention from its defects. The law I regard as essentially and fundamentally bad. I earnestly wish that the Legislature should improve it, and this being so, I think myself justified in stating the reasons why I am compelled to dissent from the view of it which has been taken by Lord Coleridge.

The law relating to blasphemy and blasphemous libel and other offences against religion has had an extremely curious history, which I tried to relate in a work published about a year ago. It was supposed by most persons to have become obsolete for all practical purposes, as no prosecution for the offence had attracted any public attention, if, indeed, any such prosecution had occurred (1) History of the Criminal Law, vol. ii. pp. 470-75. But see the whole chapter on Offences against Religion, pp. 396-497.

since 1857, when a man of the name of Pooley was tried for it on the Western Circuit by the late Mr. Justice Coleridge. Several recent prosecutions have, however, shown that this is not the case, but it is supposed that the law has been laid down in such a manner as to secure full liberty of discussion upon religious subjects, even if such discussion goes so far as to deny the truth of the Christian religion, the existence of God, and the doctrine of a future state of existence. And no doubt the summing-up of Lord Coleridge in the case of R. v. Foote does go to that length. He says in one place (page 28): "If the decencies of controversy are observed, even the fundamentals of religion may be attacked without a person being guilty of blasphemous libel ;" and other expressions to the same effect occur in other parts of it. In short, if this view of the law is correct, the offence of blasphemous libel must now be taken to consist, not in the nature of the matter published, but in a neglect of "the decencies of controversy." But is this view correct? Does the judgment in which it is contained provide sufficiently for the freedom of religious discussion? I am sorry to say that I feel obliged to answer each question in the negative; and my object in writing this article is to show that further security for freedom of discussion on these subjects is required, and that the Legislature ought to give it.

In the work already referred to I have entered at full length into the history, from the earliest times, of the law relating to offences against religion. In a highly compressed form, it is as follows.

What the legal powers of the bishops were before the Conquest is an obscure question. They seem to have been very great both in religious and in civil matters; but however this may have been, William the Conqueror strengthened their ecclesiastical jurisdiction, and separated their courts from the ordinary hundred and county courts. For several centuries after the Conquest all offences connected with religion were punished exclusively by spiritual censures, though there are one or two obscure and doubtful instances in which the civil power perhaps interfered to punish, or help to punish, heresy or apostacy, and though excommunication had civil consequences. The courts by which this system was administered had far greater importance, and a much more prominent place in the daily life of those times, and indeed, down to 1640, than is commonly supposed.

They had at one time unfettered power of life and death. Early in the fifteenth century, in consequence of the rise of the Lollards, statutes were passed by Henry IV. and Henry V. by which the bishops were empowered to arrest persons suspected of heresy, to try them, to condemn them, and to hand them over for execution to the sheriffs, who were thereupon to burn them alive. At the same time, by (1) The Summing-up in the Case of R. v. Foote and Others. Revised, and with a Preface by the Lord Chief Justice of England. Stevens & Sons. 1883.

what I believe to have been a gross usurpation, not unaccompanied by fraud, a theory was devised that there was at common law, independently of any statute, a power to burn heretics by a writ called the writ De Heretico Comburendo. These statutes remained in force about one hundred and fifty years. They were repealed in the reign of Henry VIII., and replaced by others, which, though more capricious were less harsh. They were revived during the

reign of Mary, and abolished by Elizabeth.

The statutory provisions against heretics having been repealed, powers were conferred upon the Queen to issue what was known as the High Commission, which exercised ecclesiastical jurisdiction in relation to all manner of offences connected with religion and morals, and, amongst others, in cases of heresy, and writings on religious subjects which were considered objectionable or blasphemous.

In 1640 the Court of High Commission was abolished, on account of its tyrannical proceedings; and all the other ecclesiastical courts were by the same Act deprived of their coercive jurisdiction, and remained abolished till after the Restoration.

Under the Commonwealth several laws, of various degrees of severity, were passed punishing atheism, blasphemy, and some other forms of opinion regarded as heretical.

After the Restoration the old ecclesiastical courts were revived; but the ex officio oath, which was the great instrument of their procedure, being abolished, their powers ceased to be of much practical importance. The so-called common law writ De Heretico Comburendo, which had been used on a few occasions after the repeal of the statutes of Henry IV. and Henry V., was abolished in 1677. Thus in the reign of Charles II. all the courts and modes of procedure by which heresy and blasphemy had formerly been punished were 'disabled or abolished. On the other hand, the general feeling against the expression of atheistical or anti-Christian opinions, and against blasphemy in the narrower sense of the word, were still strong, and had not been much affected by the abolition of the different courts and methods of procedure referred to. Indeed, when Parliament in 1677 abolished the writ De Heretico Comburendo, they were careful to avoid any alteration in the offences to which it applied. The Act (29 Ch. II., s. 9) concludes with the following proviso: "Nothing in this Act shall extend or be construed to take away or abridge the jurisdiction of Protestant archbishops or bishops, or any other judges of any ecclesiastical courts, in cases of atheism, blasphemy, heresie, or schism, and other damnable doctrines and opinions."

In this state of things, the Court of King's Bench took upon itself some of the functions of the old Courts of Star Chamber and High Commission, and treated as misdemeanours at common law many things which those courts had formerly punished. It openly claimed