* Other forms of profanity, besides that of blasphemy, [* 476] are also made punishable by statutes in the several States.

new trial, the remarks of Best, J., are open to a construction which answers the question in the affirmative: "My Lord Chief Justice reports to us that he told the jury that it was an indictable offence to speak of Jesus Christ in the manner in which he is spoken of in the publication for which this defendant is indicted. It cannot admit of the least doubt that this direction was correct. The 53 Geo. III. c. 160, has made no alteration in the common law relative to libel. If, previous to the passing of that statute, it would have been a libel to deny, in any printed book, the divinity of the second person in the Trinity, the same publication would be a libel now. The 53 Geo. III. c. 160, as its title expresses, is an act to relieve persons who impugn the doctrine of the Trinity from certain penalties. If we look at the body of the act to see from what penalties such parties are relieved, we find that they are the penalties from which the 1 W. & M. Sess. 1, c. 18, exempted all Protestant dissenters, except such as denied the Trinity, and the penalties or disabilities which the 9 & 10 W. III. imposed on those who denied the Trinity. The 1 W. & M. Sess. 1, c. 18, is, as it has been usually called, an act of toleration, or one which allows dissenters to worship God in the mode that is agreeable to their religious opinions, and exempts them from punishment for non-attendance at the Established Church and non-conformity to its rights. The legislature, in passing that act, only thought of easing the conscience of dissenters, and not of allowing them to attempt to weaken the faith of the members of the church. The 9 & 10 W. III. was to give security to the government by rendering men incapable of office, who entertained opinions hos

tile to the established religion. The only penalty imposed by that statute is exclusion from office, and that penalty is incurred by any manifestation of the dangerous opinion, without proof of intention in the person entertaining it, either to induce others to be of that opinion, or in any manner to disturb persons of a different persuasion. This statute rested on the principle of the test laws, and did not interfere with the common law relative to blasphemous libels. It is not necessary for me to say whether it be libellous to argue from the Scriptures against the divinity of Christ; that is not what the defendant professes to do; he argues against the divinity of Christ by denying the truth of the Scriptures. A work containing such arguments, published maliciously (which the jury in this case have found), is by the common law a libel, and the legislature has never altered this law, nor can it ever do so while the Christian religion is considered the basis of that law." It is a little difficult, perhaps, to determine precisely how far this opinion was designed to go in holding that the law forbids the public denial of the truth of the Scriptures. That arguments against it, made in good faith by those who do not accept it, are legitimate and rightful, we think there is no doubt; and the learned judge doubtless meant to admit as much when he required a malicious publication as an ingredient in the offence. However, when we are considering what is the common law of England and of this country as regards offences against God and religion, the existence of a State church in that country and the effect of its recognition upon the law, are circumstances to be kept constantly in view.

In People v. Porter, 2 Park. Cr. R. 14, the defence of drunkenness was

The cases these statutes take notice of are of a character no one can justify, and their punishment involves no question of religious liberty. The right to use profane and indecent language is recognized by no religious creed, and the practice is reprobated by right-thinking men of every nation and every religious belief. The statutes for the punishment of public profanity require no further justification than the natural impulses of every man who believes in a Supreme Being, and recognizes his right to the reverence of his creatures.

The laws against the desecration of the Christian Sabbath, by labor or sports, are not so readily defensible by arguments the force of which will be felt and admitted by all. It is no hardship to any one to compel him to abstain from public blasphemy or other profanity, and none can complain that his rights of conscience are invaded by this enforced respect to a prevailing religjous sentiment. But the Jew who is forced to respect the first day of the week, when his conscience requires of him the observance of the seventh also, may plausibly urge that the law discriminates against his religion, and by forcing him to keep a second Sabbath in each week, unjustly, though by indirection, punishes him for his belief.

The laws which prohibit ordinary employments on Sunday are to be defended, either on the same grounds which justify the punishment of profanity, or as establishing sanitary regulations, based upon the demonstration of experience that one day's rest in

seven is needful to recuperate the exhausted energies of [* 477] body and mind. If * sustained on the first ground, the view must be that such laws only require the proper deference and regard which those not accepting the common belief may justly be required to pay to the public conscience. The Supreme Court of Pennsylvania have preferred to defend such legislation on the second ground rather than the first; but it

made to a prosecution for a blasphemous libel. Walworth, Circuit Judge, presiding at the trial, declared the intoxication of defendant, at the time of uttering the words, to be an aggravation of the offence rather than an

excuse.

1 "It intermeddles not with the natural and indefeasible right of all

men to worship Almighty God according to the dictates of their own consciences; it compels none to at tend, erect, or support any place of worship, or to maintain any ministry against his consent; it pretends not to control or to interfere with the rights of conscience, and it establishes no preference for any religious estab

appears to us that if the benefit to the individual is alone to be considered, the argument against the law which he may make who has already observed the seventh day of the week, is unanswerable. But on the other ground it is clear that these laws are supportable on authority, notwithstanding the inconvenience which they occasion to those whose religious sentiments do not recognize the sacred character of the first day of the week.1

Whatever deference the constitution or the laws may require to be paid in some cases to the conscientious scruples or religious convictions of the majority, the general policy always is, to * avoid with care any compulsion which infringes on [* 478] the religious scruples of any, however little reason may seem to others to underlie them.

lishment or mode of worship. It treats no religious doctrine as paramount in the State; it enforces no unwilling attendance upon the celebration of divine worship. It says not to the Jew or Sabbatarian, 'You shall desecrate the day you esteem as holy, and keep sacred to religion that we deem to be so.' It enters upon no discussion of rival claims of the first and seventh days of the week, nor pretends to bind upon the conscience of any man any conclusion upon a subject which each must decide for himself. It intrudes not into the domestic circle to dictate when, where, or to what god its inmates shall address their orisons; nor does it presume to enter the synagogue of the Israelite, or the church of the seventhday Christian, to command or even persuade their attendance in the temples of those who especially approach the altar on Sunday. It does not in the slightest degree infringe upon the Sabbath of any sect, or curtail their freedom of worship. It detracts not one hour from any period of time they may feel bound to devote to this object, nor does it add a moment beyond what they may choose to employ. Its sole mission is to inculcate a temporary weekly cessation from labor, but it adds not to this re

Even in the important matter

quirement any religious obligation." Specht v. Commonwealth, 8 Penn. St. 312. See also Charleston v. Benjamin, 2 Strob. 508; Bloom v. Richards, 2 Ohio St. 387; McGatrick v. Wason, 3 Ohio St. 566; Hudson v. Geary, 4 R. I. 485.

1 Commonwealth v. Wolf, 3 S. & R. 50; Commonwealth v. Fisher, 17 S. & R. 160; Shover v. State, 5 Eng. 529; Voglesong v. State, 9 Ind. 112; State v. Ambs, 20 Mo. 214; Cincinnati v. Rice, 15 Ohio, 225. In Simonds's Ex'rs v. Gratz, 2 Pen. & Watts, 416, it was held that the conscientious scruples of a Jew to appear and attend a trial of his cause on Saturday were not sufficient cause for a continuance. But quære of this. In Frolickstein v. Mayor of Mobile, 40 Ala. 725, it was held that a statute or municipal ordinance prohibiting the sale of goods by merchants on Sunday, in its application to religious Jews "who believe that it is their religious duty to abstain from work on Saturdays, and to work on all the other six days of the week," was not violative of the article in the State constitution which declares that no person shall, upon any pretence whatsoever, be hurt, molested, or restrained in his religious sentiments or persuasions."

66

of bearing arms for the public defence, those who cannot in conscience take part are excused, and their proportion of this great and sometimes imperative burden is borne by the rest of the community.1

Some of the State constitutions have also done away with the distinction which existed at the common law regarding the admissibility of testimony in some cases. All religions were recognized by the law to the extent of allowing all persons to be sworn and to give evidence who believed in a superintending Providence, who rewards and punishes, and that an oath was binding on their conscience.2 But the want of such belief rendered the person incompetent. Wherever the common law remains unchanged, it must, we suppose, be held no violation of religious liberty to recognize and enforce its distinctions; but the tendency is to do away with them entirely, or to allow one's unbelief to go to his credibility only, if taken into account at all.3

1 There are constitutional provisions to this effect more or less broad in Alabama, Arkansas, Colorado, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Michigan, Missouri, New Hampshire, New York, North Carolina, Oregon, and South Carolina, and statutory provisions in some other States. In Tennessee "no citizen shall be compelled to bear arms, provided he will pay an equivalent to be ascertained by law." Art. 1, § 28.

2 See upon this point the leading case of Ormichund v. Barker, Willes, 538, and 1 Smith's Leading Cases, 535, where will be found a full discussion of this subject. Some of the earlier American cases required of a witness that he should believe in the existence of God, and of a state of rewards and punishments after the present life. See especially Atwood v. Welton, 7 Conn. 66. But this rule did not generally obtain; belief in a Supreme Being who would punish false swearing, whether in this world or in the world to come, being regarded sufficient. Cubbison v. McCreary, 7 W. & S. 262; Blocker v.

Burness, 2 Ala. 354; Jones v. Harris, 1 Strob. 160; Shaw v. Moore, 4 Jones, 25; Hunscum v. Hunscum, 15 Mass. 184; Brock v. Milligan, 10 Ohio, 121; Bennett v. State, 1 Swan, 411; Central R. R. Co. v. Rockafellow, 17 Ill. 541; Arnold v. Arnold, 13 Vt. 362. But one who lacked this belief was not sworn, because there was no mode known to the law by which it was supposed an oath could be made binding upon his conscience. Arnold v. Arnold, 13 Vt. 362.

8 The States of Iowa, Minnesota, Michigan, Oregon, Wisconsin, Arkansas, Florida, Missouri, California, Indiana, Kansas, Nebraska, Nevada, Ohio, and New York have constitutional provisions expressly doing away with incompetency from want of relig ious belief. Perhaps the general provisions in some of the other constitutions declaring complete equality of civil rights, privileges, and capacities are sufficiently broad to accomplish the same purpose. Perry's Case, 3 Grat. 632. In Michigan and Oregon a witness is not to be questioned concerning his religious belief. See People v. Jenness, 5 Mich. 305. In Geor