11 January 2015

The unlearned lessons of Thomas Aikenhead

A stooshie is brewing across the Irish sea, given added impetus by this week's gruesome events in Paris, and the debate about offending religious sensibilities which it has provoked. In 2009, the terminally ghastly Fianna Fail government introduced the Defamation Act. Section 36 of the legislation enacted a new statutory offence of "publishing or uttering blasphemous matter", which criminalises producing material "that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion." 

The offence is a crime of intention. You can't commit it recklessly or negligently. To be convicted, the prosecution must demonstrate that the accused "intends, by the publication or utterance of the matter concerned, to cause such outrage." If you find yourself in the dock, you have a defence if you can prove that "reasonable person would find genuine literary, artistic, political, scientific, or academic value" in what you said, or wrote, or pictured -- but if not, you're liable to anything up to a 25,000 euro fine. In the heightened atmosphere after the Charlie Hebdo atrocity, the campaign for these offences to be rolled back in Ireland has gained urgency.

This has prompted some subtly-self regarding commentary from this side of the water. "That's priest-ridden Ireland for you, " the gloat. "Shocking. We wouldn't countenance that sort of thing here." Think again, comrades. Back in 2012, I recalled the case of Thomas Aikenhead - the twenty year old Edinburgh student strung up by the Scottish authorities in the 1600s. At the instance of the Lord Advocate of the day, the boy was indicted in the High Court of Justiciary, for having suggested that Moses was a crooked magician, and characterising the New Testament as "the History of the Impostor Christ" who "picked up a few ignorant blockish fisher fellows, whom he knew by his skill and phisognomie, had strong imaginations, and that by the help of exalted imagninatione he play’d his pranks." 

For these little blasphemies, the Scottish authorities throttled Aikenhead, on the 8th of January 1697. That is history. But the law which pushed the noose about his neck, and hoist him to his death, remains very much in force.  Centuries may have passed, but the crime of blasphemy has never actually been repealed in Scotland. In principle, at least, it remains an offence at common law "to publish or expose for sale blasphemous works which are intended to asperse, vilify, ridicule and bring into contempt the Holy Scriptures or the Christian religion."

The last prosecution was undertaken against Thomas Paterson - for scurrilous publishing - in 1843. A committed atheist spoiling for a fight, Paterson was editor of The Oracle of Reason - an atheistical magazine. He opened a radical bookshop in Edinburgh, which he reportedly characterised as his "blasphemy depot", crammed full of anti-clerical and anti-Christian readings. The authorities took note. The illiberal common law sparked back into life.

Representing himself during his High Court of Justiciary trial, with all of the rhetorical firecrackers which inevitably accompany a man doomed to be convicted under what he perceives as an unjust law, Paterson sought to demonstrate "the scenes of animosity, malice, carnage, bloodshed and torture, which the followers of Christ have practiced on each other, for the honour of Jesus, and the salvation of the Christian religion, from its commencement to the present."

The presiding judge reportedly interrupted him before he was able to quote choice verses from scripture to vindicate this assessment of Christianity's impact and legacy. His fate was softer than Aikenhead's. Paterson got 15 months in the slammer. British justice: the eternal lamp that shows where freedom lives.

You may be reassured that the crime of blasphemy has been gathering stoor on a Crown Office shelf, unused, all this time. The Human Rights Act - which, remember, will get the chop if a new Tory government is elected in 2015 - may offer some protection, should our prosecutors recover the inclination to prosecute anyone for slagging off the Christian scriptures and beliefs.

But given Police Scotland's disturbing interest in "monitoring" social media, and the increasing penetration of the touchy language of criminalising "offence" into prosecution rhetoric and Scottish political discourse, I for one am not reassured. It isn't just the Irish who must consider putting their house in order. 

It would represent a step forward - a small step forward - for the paper tigers of free expression in Scottish politics, to live up to their new found zeal and to honour liberty in their deeds, as well as their words. It sticks in the craw to hear elegant epigrams from Voltaire earnestly quoted by politicians and commentators who have consistently resisted the logic they now piously advocate. 

To hear hymns to the fundamental character of free expression from folk who've consistently mounted stolid defences of punishing  "offensive behaviour," who feel tempted to whine to the cops when they see a tasteless tweet, and who think the courts are the best place to sort out the rude, the thoughtless, the gormless, bigoted, and unempathetic - is difficult to thole. "I may disagree with everything you say, but will defend to the death the right of the procurator fiscal to pull you up before the sheriff for saying it." Bravo, Monsieur Arouet.

These are just empty words, just so much pious humbug, if these principles don't guide the actions and the choices of our politicians. Liberty often finds feeble friends on the pine benches of Holyrood.  Centuries on, you'd hope, finally, we might have learned the lessons of Thomas Aikenhead.


  1. The problem of course with today's world of "offensive speech", racist, sexist, religious or otherwise, is that a right to free speech would render all the legislation about offense null and void leaving only the law of defamation as a recourse.

    Free speech means free speech for everyone not just the nice.

    Once a law starts to regulate your opinions, however nasty, then free speech is gone.

  2. http://www.bbc.co.uk/news/uk-northern-ireland-30385535

    Don't think Northern Ireland is any better.

  3. Excellent piece. As you say, given the fascination of Cops Caledonia with the pond-life ecosystems of social media, we should all be worried that the legislation is still on the books.

    The related issue of witchcraft and the law is relevant. As Robin Briggs points out in Witches and Neighbours, the Church of Scotland complained loudly when Westminster took away Scotland's right to burn witches in 1735, with the passing of the Witchcraft Act.

    An interference in hallowed Scots law of course, but without it poor befuddled Janet Horne - burned in Dornoch in 1727 - would perhaps not have been the last unfortunate executed in these islands.

    The reason we know so much about the Aikenhead is because Locke grasped the implications and collected many texts relating to the trial. -


    ' Locke’s collection was concerned not just with the trial but the broader issue of the licensing of the press and censorship ' (Justin Champion)

    1. Our proud historical tradition..."

      "Burn the witch!"

      At least we got around to abolishing sedition in 2010. That's something.

  4. Just wondering, are you going to register your blog with the Electoral commission?

    1. Nope. I doubt I will be funnelling a lot of cash through this site anyway ;-)

  5. Back to Charlie, see Dieudonne has been arrested for a facebook post!

  6. LPW, the atheist chappy picked a bad year in which to be atheising. 1843 was the year of the Great Disruption, and feeling about religion was running at its highest since the Reformation. That's not to excuse his imprisonment, but to maybe give it a bit of context.