Blasphemy In Irish Law1
| Published date | 01 March 1960 |
| Author | Paul O'Higgins |
| Date | 01 March 1960 |
| DOI | http://doi.org/10.1111/j.1468-2230.1960.tb00581.x |
BLASPHEMY
IN
IRISH
LAW’
PROSECUTIONS
for blasphemy are, to say the least of
it,
rare
and far between in the modern common law world. This gives
particular interest to the recent refusal of an Irish District Justice
to commit a Dublin theatrical producer for trial
on
a charge of
having produced for gain, in May
1957,
performances of Tennessee
Williams’ play
The
Rose
Tattoo
and obscene,
at
the Pike Theatre, D~blin.~ Although,
as
the
District Justice pointed out, a person convicted of any of these
offences could be sentenced to an unlimited period of imprisonment,
little evidence was in fact brought forward by the prosecution
directly to establish the charge of profanity.
Nor
was any defini-
tion
of
the offence offered by counsel. The District Justice stated
that the offences charged were common law offences. The major
part of the preliminary investigation was concerned with an attempt
to establish prima facie evidence of obscenity. This the prosecution
which were indecent and
profane
There is little material
on
this topic.
In
addition to works cited elsewhere the
following have been referred
to
:
W.
T.
Ayres,
A Comparative View
of
the Differences Between the Enylish
and Irish Statute and Common Law
(Dublin and London,
1780), 2
vols. (especi-
ally vol.
2,
Bk.
2,
Chap.
4:
‘’
Offences Against God and Religion
”);
Paul
Blanshard,
The Irish and Catholic Power:
An
American Interpretation
(Boston,
1953,
and London,
1954)
(references are to the London edition);
G.
Gavan
Duffy,
Digest
of
the Criminal and Quasi-Criminal Law, Part 11: District Court
(Dublin
1925),
p.
29;
J.
A. Froude,
The English in Ireland in the Eighteenth
Century,
New Impression, Silver Library Edition
(London,
1906),
3
vols.;
E.
Hayes,
Crimes and Punishments,
Or
A Digest
of
the Criminal Statute Law
of
Ireland
(2nd
ed., Dublin,
1842), 2
vols. (especially vol.
2,
pp.
515-518);
J.
O’Connor,
The Irish Justice
of
the Peace
(Dublin,
1911),
pp.
795
and
878;
W.
A. Breakey,
Handbook
of
the Common and Statute Law
of
Ireland
(Dublin,
18953,
p.
35;
N. Robbins,
An Exact Abridgment
of
the Statutes in Force in
Ireland relating to Ecclesiastical Matters, etc.
(Dublin,
1751)
;
E.
Bullingbroke,
Ecclesiasfical Law, etc.
(2
vols., Dublin,
1770),
vol.
2,
pp.
1400-1404.
H.
B.
Bonner,
Penalties Upon Opinion; Or Some Records
of
the Laws
of
Heresy
and Blasphemy
(3rd ed. by
F.
W.
Read, London,
1934)
;
C.
S.
Kenny,
*‘
The
Evolution of the Law
of
Blasphemy,”
1
Cambridge Law Journal
(1921-23),
pp.
127-142;
G. D. Nokes,
A History
of
the Crime
of
Blasphemy
(London,
1928).
For a criticism of laws against blasphemy, see
J.
B.
Bury,
A History
of
Freedom
of
Thought
(London,
1913),
especially, pp.
243-246.
London,
1955;
New York,
1951.
The charge here was of profanity, but it seems that profanity is equivalent to
and synonymous with blasphemy: See Nokes!
op.
cit.,
pp.
35,
38,
46,
82, 86.
for
evidence to support this conclusion. Profanity
is
treated as indistinguishable
from blasphemy in such Irish works
as
E.
Bullingbroke,
The Duty and
Authority
of
Justices
of
the Peace, etc.
(revised edition, by
J.
Godderd,
Dublin,
1788),
pp.
90-91,
and
J.
Gabbett,
A Treatise on the Criminal Law, etc.
(2
vols., Dublin,
1843-44).
vol.
I,
p.
72.
The whole proceedings were reported in the
Irish
Times
(Dublin)
on
the follow-
ing dates: May
25;
July
5,
9, 12
and
16;
December
12, 16,
17,
18
and
19,
1957;
April
23,
25
and
26;
May
16
and
24;
June
4,
6
and
10,
1958.
See
also
Attorney-General
v.
Simpson
(1959) 93
1r.L.T.R.
33.
On
blasphemy generally, see:
151
152
THE MODERN
LAW
REVIEW
VOL.
2a
failed to do
to
the satisfaction of District Justice O’Flynn who
made a most important review of the law with regard to obscenity
in Ireland, in his speech refusing informations.
It
should be noted that in this case the District Justice seems
to have regarded profanity and obscehity as similar,
if
not identical,
offences. The charges against Simpson consisted originally of three
separate counts of producing an indecent and profane play
on
different occasions. At the request of the prosecution the District
Justice allowed the word
“
obscene
”
to be substituted for the word
“
profane
”
in two of the
count^.^
The case leaves open the question, whether Irish law, to quote
Professor Kenny
’
s
words,
“
.
. .
rendered punishable all
open
expressions of a disbelief
in Christianity,
or
only such as were couched in language
so
irreverent and scurrilous as to be likely to offend ordinary
Christians deeply enough to provoke some
of
them to
a
breach
of the peace.
To
put
it
briefly, could the mere matter
of
an
expression of disbelief constitute
it
an offence of criminal
blasphemy,
or
would the offence arise only when the Matter
was aggravated by the
Manner
?
)’
A perusal of the evidence for the prosecution in this case suggests
that
it
was the belief
of
the prosecution that certain matters were
in themselves, without more, blasphemous
or
profane.
The case thus raises the important problem of what constitutes
a blasphemous offence in Irish law. This
is
especially important
because the Constitution of the Republic of Ireland qualifies the
constitutional guarantee of the right
of
citizens to express freely
their convictions and opinions, by the following proviso
:
‘‘
The publication
or
utterance of blasphemous, seditious,
or
indecent matter is an offence which shall be punishable in
accordance with law.”
‘
In interpreting this Constitution one is entitled to look at the
Constitution as a whole, and
it
should be noted that the Preamble
clearly indicates the Christian inspiration of the whole
:
6
93
1r.L.T.R.
33
at
36.
6
Kenny,
op.
cit.,
p.
128.
T
Constitution
of
Irekand,
Art.
40.
6.
I.
i.
It
may perhaps be pointed out that
wme people believed that this proviso did not go far enough,
e.g.,
Dr. Cornelius
Lucey wrote
of
this proviso:
“
Were the word
‘
anti-religious
’
inserted after
the word blasphemous
’
in the last sentence, this article would be
as
perfect
as
we could expect it to be.
We
would like the addition of this word ‘anti-
religious
’
simply because we are not sure that the publication of anti-God or
atheistic propaganda would be accounted blasphemous in law.
. . .
There is
good reason in this country why the State should tolerate all religions and allow
them all freedom of expression. But there is
no
reason why
it
should tolerate
unbelief or, at any rate, open propaganda
on
behalf
of
unbelief
”:
Irish
Ecclesiastical Record
(Dublin), 5th serizs,
POI.
60
(1937),
pp.
68t699,
at
p. 690. Dr. Lucey’s article wy, entitled
The
Freedom
of
the Press.
The Irish Constitution: Freedom
of
Speech,”
80
Irish Monthly
(1952),
pp.
345351,
where, however,
no
attempt
is
made to
analyse the legal meaning
of
this clause.
See also Dona1 Barrington,
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