Blasphemous Libel [New Zealand Politics]
With the current case of Stephen Fry and Ireland, attention here has turned to the fact that New Zealand also still has a blasphemy law on the books (unenforced since 1922). So our politicians, some of whom were not actually aware of the law’s existence, are considering abolishing it:
This is an issue close to my heart. Not because I actually think blasphemy laws serve any purpose, but because I did a research essay on the subject at University – it may be an obscure law, but it’s an interesting law.
For old time’s sake, here’s my research essay, in full:
Christ on a Crutch: Blasphemous Libel in England and New Zealand
On 22nd February, 1922, the Supreme Court1 in Wellington played host to a history-making spectacle, when, for the first and last time in this country, the Crown prosecuted a case of blasphemous libel: R. v. Glover.2 It was as much funeral as birth. Far from a well-spring of significant decisions, it became the fossilised memory of a dying crime. In the 120 years of New Zealand’s criminal code, the unsuccessful action in Glover stands alone.
What is blasphemous libel? In short, it is defamation of the sacred: the malicious attack on (Christian) faith and doctrine. More systematically, it is the ecclesiastical twin of sedition: another ancient shield for authority against the slings and arrows of the irreverent. Both sedition and blasphemous libel have deep roots in English common law, and while neither is valued in an age that prefers secular government and emphasises individual rights, the transplantation of blasphemy to colonial soil reveals much about New Zealanders as a people. Far from simply aping English procedure, it will be argued New Zealand authorities took the more enlightened developments in English law, and built on them in unique ways.
Yet whereas English blasphemy law met its proverbial maker in 2008,3 New Zealand’s is still preserved like an insect in amber. s123 of the Crimes Act 1961 has outlived both sedition and death penalty: obscure and dormant for ninety years, there is little pressure for repeal. Is there any chance of revival? Almost certainly not, but the enactment’s status, both as dead letter and as still-current legislation, does not exist in a social vacuum.
In considering this unique legal relic, this essay shall chart the evolution of blasphemous libel in English law, before returning to New Zealand for comparison and contrast. Only then can we appreciate the values beneath the surface, for blasphemous libel is entirely values.
II. England and Blasphemous Libel
English blasphemy was, in theory, a double-headed monster: whereas New Zealand’s provisions are entirely statutory4, in England the offence carried the weight of both Parliament5 and the Courts. These twin branches struck both cumulatively and independently: common law prosecution did not prevent prosecution under statute,6 and when an 1813 statute7 repealed provisions of 1697 legislation, the Courts held repeal did not alter common law.8 In practice, however, prosecutions were solely creatures of the common law; few statutory prosecutions took place,9 as the four day window for laying charges would likely have proved impractical.10
Lord Edmund-Davies’ dissent in R. v. Lemon11 traces the four forms of libel (sedition, blasphemy, obscenity, and defamation) back to ecclesiastical courts and the Star Chamber, which, in his Lordship’s view, was suspicious of written words in general, and challenges to authority in particular.12 Certainly, full governmental force was employed: Atwood’s Case (1617)13 held that blasphemy cases were for central authority, not local justices of the peace. The common law courts, specifically the Court of the King’s Bench, then inherited the role after 1641.
This merger of secular and religious reached full flower in England with R. v. Taylor (1676),14 when Hale CJ justified blasphemous libel prosecutions in borderline theocratic terms:
Christianity is parcel of the laws of England, and therefore to reproach the Christian religion is to speak in subversion of the law.15
This is alien to our eyes: even individuals who see a symbiotic relationship between law and faith rarely consider reproach of one as subversion of the other. The reason is values dissonance. In New Zealand (and post-Enlightenment England) religion is largely a private matter and criminal law a public, whereas in Taylor, Church and State are irrevocably intertwined. Hale’s emphasis on Christian religion16 is similarly problematic: New Zealand today regards itself as not merely secular, but also multicultural. Yet, if s123 is not an echo of these forgotten ideas, what is it?
An answer may be found in the two centuries after Taylor. Blasphemous libel evolved, underlying justifications shifted, and the circumstances under which a person faced conviction were narrowed. By the early nineteenth century, it was no longer a truism that Church must be protected, lest State crumble.
If the first incarnation of blasphemous libel punished constitutional-level subversion of authority, an example of the second incarnation is R. v. Carlile (1819),17 where Best J writes:
Any writing which has a tendency to vilify the Christian religion or the books of the Old and New Testament is a blasphemous libel, and the question for the jury, when publication is proved, is, whether the alleged libel was a temperate discussion of the truth of the Christian religion or an attempt to vilify and degrade it, to excite prejudice, and not to convince.18
Permitting religious debate, albeit in temperate language only, is significant. Very Enlightenment-flavoured, though the change also suggests the state no longer regarded atheists, Jews, Catholics, and non-Conformists as existential threats.
Not that blasphemous libel yet approached anything resembling modern sensibilities. Carlile still resulted in conviction. R. v. Gathercole (1838)19 reasserted the role of blasphemous libel in serving state interests, holding that the law did not protect non-Anglicans, only the Established Church.20 Gathercole curiously resurfaced in the 1990s, when R. v. Chief Metropolitan Stipendary Magistrate, ex parte Choudhury21 considered an allegedly anti-Islamic book. Since one could not blaspheme against Islam in English law, no action could be taken.
An expansion of Carlile came with R. v. Hetherington (1841).22 Per Lord Denman CJ:
The question in prosecutions for blasphemy is not altogether a matter of opinion, but in a great degree of tone and style and spirit. A difference in opinion may subsist, not only as between different sets of Christians, but also with regard to the great doctrines of Christianity itself, and discussion upon that subject if they be conducted in a sober and temperate and decent style may be tolerated… but if the tone and spirit is that of offence and ridicule, which leaves the judgement really not free to act…23
Denman not only confirms the non-criminality of debate, but converts blasphemy from theological treason to disrespect for the marketplace of ideas. Blasphemous libel, in his view, perverts religious argument, so the authorities have moved from Taylor to more subtle regulation of language. Nevertheless, blasphemous libel still fulfilled its old role: contemporaneous with Hetherington, was R. v. Moxon (1841),24 where a publisher was successfully prosecuted for publishing Shelley’s utopian Queen Mab.
The last gasp of English blasphemous libel features two Lord Coleridge cases: R. Bradlaugh (1883)25 and R. v. Ramsay and Foote (1883).26 These are the final word in the common law in this area. Lemon, which revived the crime in 1979 after 57 years, is five House of Lords judges debating Coleridge’s words.27
Bradlaugh and Ramsay and Foote share a similar thread: denial of Christianity does not constitute blasphemous libel. Rather, it is
wilful intention to pervert, insult, and mislead others by means of licentious and contumacious abuse supplied to sacred subjects, or by wilful misrepresentation or artful sophistries calculated to mislead the ignorant and unwary.28
Coleridge moves blasphemous libel from a theological question to a social question. Rather than denial or disrespect of the Christian God, the focus is on real people, and whether the alleged libel was calculated to offend and shock. Like Denman, Coleridge also sees a role for the law in protecting those who might be influenced by dangerous tracts; whether this is paternalistic or patronising depends on one’s own values (and social class).
Four more cases followed between 1883 and 1922; the last, R. v. Gott,29 further emphasises social context and breaches of the peace. Afterwards, there is only Lemon, where Lord Scarman passionately defends blasphemous libel law as safeguarding social harmony.30 Scarman’s plea fell on deaf ears. In 1967, statutory blasphemy was abolished, followed in 2008 by its abolition in common law. Even shifting the crime from theological to social was insufficient in a secular and individualistic age.
III. New Zealand Blasphemy: Statute Law
By the time British sovereignty was established in New Zealand, English blasphemy law had long since abandoned Hale CJ’s theocratic underpinnings. The establishment of New Zealand’s Supreme Court coincided with Hetherington; blasphemy was now a matter of public order, and paternalistic regulation of language, rather than propping up state authority.
In 1893, New Zealand adopted its first Criminal Code. Common law offences were abolished, but blasphemous libel was incorporated under s133:
(1) Every one is liable to imprisonment for a term not exceeding one year who publishes any blasphemous libel.
(2) Whether any particular published matter is or is not a blasphemous libel is a question of fact.
(3) It is not an offence against this section to express in good faith and in decent language, or to attempt to establish by arguments used in good faith and conveyed in decent language, any opinion whatever on any religious subject.
(4) No-one shall be indicted under this section unless with the sanction in writing of the Attorney General for the time being first had and obtained.
With non-substantive changes, the section survived into the Crimes Act 1908, s150, and then to the Crimes Act 1961, s123. This, then, is the entire legal basis for blasphemous libel in New Zealand, yet nowhere is the crime actually defined: one is reliant on Glover (discussed below) and English authorities. Lacking common law blasphemous libel, New Zealand must import it to define it.
But Gathercole holds that one can only blaspheme the state religion. New Zealand, a colony full of Scottish and Irish as well as English settlers, had never imported an Established Church. How, then, does one blaspheme without a state religion?31
There are two possibilities. The first is that 1893 codification compressed existing law into statute; blasphemous libel existed in common law, so was incorporated despite New Zealand lacking the necessary institutional apparatus. However, it is inconceivable this could have subsequently passed unnoticed, so the provision should have been quietly removed well before Glover. The other, more likely, scenario is that New Zealand never intended Gathercole underpinnings, and so substituted broader community values, pre-empting Lord Sumner’s ‘strange dictum’ criticism by twenty years. This more ecumenical reading is strengthened by the third paragraph’s “any opinion whatever on any religious subject:” there is no specific faith nominated for protection.
Thus New Zealand omits the denominational baggage of previous centuries. What of Lord Coleridge’s ‘social’ view? A wider reading of the 1893 statute provides clues: blasphemous libel is listed alongside (now-repealed) provisions outlawing assaults on ministers of religion, and disturbing public worship. Neither are denomination-specific, and both focus on ensuring worship without harassment. This meshes perfectly with Coleridge: respectful criticism is fine, so long as it does not disrupt the deeply-held values of others.32 New Zealand blasphemy law seems more Scarman than Hale: blasphemy exists to protect the community, not the Christian religion in and of itself. One considering s123 of the 1961 Act in isolation may miss this nuance.
Other statutory innovations can be detected too: the second paragraph’s inference that criminal blasphemy must be written (confirmed in Glover), so verbal communication and (presumably) artwork33 are exempt. Similarly, arguing in good faith is exempt from prosecution, an extension of the defence dating back to Carlile. But most interesting is paragraph four: prosecution requires the explicit approval of the Attorney General. Since 1893, New Zealand has imposed a statutory roadblock unknown in England, shifting focus from routine law-enforcement towards the highest rung of the Executive, and ensuring prosecution for blasphemous libel could only ever be a calculated political decision. Paragraph four boils down the issue to a contest of values: is the wider polity (via the Attorney General) prepared to trump an individual’s freedom of expression in the name of (presumably) social cohesion?
Since at least 1990, the answer has been negative. The New Zealand Bill of Rights Act 1990 embodies the social zeitgeist, and explicitly guarantees freedom of expression in s14. With courts using the provision to reinterpret existing legislation,34 it is near inconceivable that any s123 prosecution could succeed, even with Attorney General approval.35 Meanwhile, blasphemy cannot re-enter law via s15 (freedom of religion): Mendelssohn v. Attorney-General36 establishes that the state’s duties are merely passive.
IV. New Zealand Blasphemy: Case Law
Unlike Lemon, Glover was a tame affair. On October 21st, 1920, The Maoriland Worker printed two poems by Siegfried Sassoon. The second, ‘Stand-to: Good Friday Morning,’ concludes with the three lines:
O Jesus, send me a wound today
And I’ll believe in Your bread and wine
And get my bloody old sins washed white!37
Attorney-General Sir Francis Bell considered this blasphemous libel under s150 of the 1908 Act, and prosecuted the editor, John Glover.38
Hosking J’s approach is interesting. He laments the lack of legal guidance, having explicitly avoided English case law:
If we went to the common law of England for instruction upon the subject, we should find in the common law of England that the topics which are referred to in this poem are most decidedly within the law as to blasphemy. But, as I say, we are not governed by that…39
This is either an assertion of judicial independence, or a judge avoiding unwanted precedent.40
He then establishes the New Zealand standard for blasphemous libel, by creating a three-fold test. Firstly, it “must be against a religious and sacred subject, that within the community is well-known as treated with respect and reverence.”41 It must be written (unlike England), as permanence is important.42 Finally, the language in its everyday sense must be beyond the bounds of decency, being “contemptuous and reviling in its character.”43 Cherry-picking English law, Hosking J invokes Coleridge’s view of decency.44
He further lists non-defences: Glover’s status as editor, not writer;45 the prior publishing of the poem;46 and alleged realism (merely because the words were used in the trenches, does not render them fit for publication).47 Hosking J explicitly addresses freedom of thought, arguing blasphemous libel is a matter of manner, not substance, and that the entire case hinges on whether the last line is beyond social bounds.48 The jury decided it wasn’t, and acquitted.49
What to make of this solitary outing of New Zealand blasphemy law? Hosking builds on Coleridge by treating this as a crime against the community: if the poem’s words are blasphemous, it is because their indecency offends others. It is not a crime against God, but against men, and Christianity only enjoys its status through its widespread nature. Were it not for Hosking J’s specification of “religious subject”, one might imagine rugby-haters blaspheming the Ranfurly Shield. But is secularly-derived blasphemy an oxymoron? If blasphemy is essentially a means to ensure social harmony, there are other, less loaded, ways to achieve the same result: breaches of the peace through disorderly conduct charges, offensiveness through the offended learning to live and let live. The obsolescence of s123 may be as much society dispensing with hollow lip-service as promoting unbridled individualism.
This essay has now considered blasphemous libel in England and New Zealand: the former abolished, the latter comatose. Full-blooded blasphemy law, the flavour in Taylor, died when social elites ceased to find non-Anglicans threatening, through the crime lingered on in England as a means of protecting individuals from offence and patronising the excitable lower orders. New Zealand only experienced blasphemy in its tolerant dotage: something law-makers were clearly aware of, as they not only built on the secular shift of nineteenth century case law, but also took a far more ecumenical view than English courts ever did. Via the Attorney-General provision, New Zealand further ensures any prosecution must be a political consideration, with Government facing consequences at the ballot box if it strays from the values of voters. The Kiwi way, perhaps, and those who see fossilised theocracy in s123 are criticising a tiger toothless even in 1893. Our law-makers long ago moved on, finding new ways of promoting social cohesion and order that better, and more sincerely, reflect the zeitgeist of our age.
Case Law: England
Atwood’s Case (1617) 79 ER 359.
Bowman v. Secular Society Ltd  AC 406.
R. Bradlaugh (1883) 15 Cox CC 217.
R. v. Carlile (1819) 106 ER 621.
R. v. Chief Metropolitan Stipendary Magistrate, ex parte Choudhury  1 All ER 306.
R. v. Gathercole (1838) 168 ER 1140.
R. v. Gott  16 Cr App Rep 87
R. v. Hetherington (1841) 5 JP 496.
R. v. Lemon  1 All ER 898.
R. v. Moxon (1841) 4 State Tr NS 693.
R. v. Ramsay and Foote (1883) 15 Cox 231.
R. v. Taylor (1676) 1 Vent 293.
R. v. Waddington (1822) 107 ER 11.
Case Law: New Zealand
Hopkinson v. Police  3 NZLR 704.
Mendelssohn v. Attorney-General  2 NZLR 268.
R. v. Glover  GLR 185
Blasphemy Act 1697. http://www.british-history.ac.uk/report.aspx?compid=46921
Criminal Justice and Immigration Act 2008.
Criminal Law Act 1967.
Doctrine of the Trinity Act 1813.
Statute: New Zealand
Criminal Code Act 1893.
Crimes Act 1908.
Crimes Act 1961.
New Zealand Bill of Rights Act 1990.
The Law Commission [England]. ‘Offences Against Religion and Public Worship,’ working paper no. 79., 1981.
Maoriland Worker, 1st March, 1922: http://paperspast.natlib.govt.nz/cgi-bin/paperspast?a=d&d=MW19220301.2.2&l=mi&e=——-10–1—-0–
New Zealand Herald, 4th March, 2006: http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10371024
Sassoon, S., ‘Stand-to: Good Friday Morning,’ http://www.bartleby.com/135/21.html
1The High Court since 1980.
2  GLR 185
3Criminal Justice and Immigration Act 2008, s79(1). The abolition is effective in England and Wales, not Scotland.
4New Zealand abolished common law offences: Criminal Code Act 1893, s6, Crimes Act 1908, s5, and Crimes Act 1961, s9.
5The Blasphemy Act 1697, repealed by the Criminal Law Act 1967, s13(2).
6R. v. Carlile (1819) 106 ER 621. Best J argues common law protects morals, and statute protects government.
7The Doctrine of the Trinity Act 1813, removing penalties for Unitarians.
8R. v. Waddington (1822) 107 ER 11.
9 The Law Commission [England], ‘Offences Against Religion and Public Worship,’ working paper no. 79., 1981.
11  1 All ER 898
12Lemon, per Lord Edmund-Davies.
13 79 ER 359
14 1 Vent 293
16Hale means the Anglican Church. Other denominations were less welcome; it would be a further century and a half before Roman Catholics were permitted to sit in the British House of Commons.
17 106 ER 621
18 Ibid. Emphasis mine.
19 168 ER 1140
20Bowman v. Secular Society Ltd  AC 406, per Lord Sumner, calls Gathercole as a strange dictum. By 1917, constitutional protection of authority (the older justification for blasphemy laws) and keeping the peace (the newer) had separated: Sumner points out offending a Jew is likely to start a fight as offending an Anglican.
21  1 All ER 306
22 5 JP 496.
24 4 State Tr NS 693
25 15 Cox CC 217
26 15 Cox 231
27The decision hinged on whether blasphemous libel required intent to blaspheme, or merely intent to publish. The House of Lords decided 3-2 in favour of the latter.
29  16 Cr App Rep 87
30Lemon also held that a breach of the peace was not necessary for blasphemous libel.
31The same arguably applies to Wales after disestablishment in 1920. But no Welsh blasphemy cases were tried until abolition in 2008.
32None of the penalties were overly harsh. Assault on a minister of religion carried the same maximum penalty as aggravated assault.
33Had Te Papa’s ‘Virgin in a Condom’ exhibit been prosecuted in 1998, this might have been debated.
34See Hopkinson v. Police  3 NZLR 704.
35Hence Solicitor-General John McGrath not prosecuting Te Papa for “Virgin in a Condom”: http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10371024
36  2 NZLR 268.
39 Glover, per Hosking J, at 185. Emphasis mine.
40Hosking’s tone is that of a man who wants a nuisance to go away. He opens by noting that blasphemous libel is not a severe crime.
41 Glover, per Hosking J, at 185.
42 Ibid., at 186.
43 Ibid., at 185.
44 Ibid. at 186.
46 Ibid., at 187.
49Attaching a rider that future publication of such language be discouraged.