It is worth while recording the curious, not to say ignominious, ways
from which justice to new thought has emerged. In the 5 and 6 Victoriae,
cap. 38, 1842, the trial of eighteen offences were removed from
the jurisdiction of Justices of the Peace in Quarter Sessions and
transferred to the Assize Court. Persons accused were often subject to
magisterial intolerance, ignorance and offensiveness.
Among the transferred offences were forgery, bigamy, abductions of
women. "Blasphemy and offences against religion," often of doubtful
and delicate interpretation, were two of the subjects taken out of
magisterial hands and placed under the decision of better-informed and
more responsible judges. "Blasphemy" was the general title under which
atheism, heresy, and other troubles of the questioning intellect were
designated. "Composing, printing or publishing blasphemous libels," were
included in the list of subjects to be dealt with in higher courts. Thus
better chances of justice were secured to thinkers and disseminators
of forbidden ideas. This new charter of thought, which conceded legal
fairness to propagandism, was not the subject of a special statute, but
was interpolated in a list, which read like an auctioneer's catalogue,
eluded Parliamentary prejudice, which might have been fatal, had it been
formally submitted to its notice.
In the same manner the Affirmation Act, which changed the status of the
disbeliever in theology from that of an outlaw to that of a citizen,
crept into the Statute Book through a criminal avenue. A Bill to
admit atheists, agnostics, or other conscientious objectors to the
ecclesiastic oath, to make a responsible affirmation instead, was twice
or thrice thrown out of the windows of Parliament. Sir John Trelawny
used to say Mr. Gathorne Hardy (afterwards Lord Cranbrook) would rise
up, as I have seen him, with a face as furiously red as one of his own
blast furnaces at Lowmoor, and move its rejection. It was passed at
last by the friendly device of G. W. Hastings, M.P., the founder of the
Social Science Association, in a Bill innocently purporting to better
"promote the discovery of truth" by enabling persons charged with
adultery to give evidence on their own behalf.
Then and there a clause was introduced which had no relation to the
extension of the right to give evidence, but upon the exemption of an
entirely different class of persons from the obligation of making oath.
Adulterers appear always to be Christians, since no case is recorded in
which any party in an adultery action professed any scruple at taking
the oath. Yet the Bill set forth that "any person in a civil or criminal
proceeding who shall object to make an oath," shall make a declaration
instead. When the Bill became an Act secular affirmation became
legalised. Thus by a clause treading upon the heels of adultery, the
witness having heretical and unecclesiastical convictions was enabled to
be honest without peril.
In 1842, as I witnessed at the Gloucester Assizes, no barrister would
defend any one accused of dissent from Christianity, but apologised for
him and proclaimed his contrition for his sin of thinking for himself.
Slave thought of the mind, chained to custom, could be defended, but not
Free Thought, which is independent of everything save the truth. By the
Act of 1869* atheists ceased to be outlaws, and were henceforth enabled
to give evidence in their own defence. Wide-awake and vigilant as a
rule, bigotry was asleep that day. Thus by circuitous and furtive paths
the right of free thought has made its way to the front of the State.
* 32 & 33 chap. 68, Evidence Amendment Act