as such.1 Contumelious reproaches and profane ridicule of Christ or of the Holy Scriptures have the same evil effect in sapping the foundations of society and of public order, and are classed under the same head.2

In an early case when a prosecution for blasphemy came before Lord Hale, he is reported to have said: "Such kind of wicked, blasphemous words are not only an offence to God and religion, but a crime against the laws, state, and government, and therefore punishable in the Court of King's Bench. For to say religion is a cheat, is to subvert all those obligations whereby civil society is preserved; that Christianity is a part of the laws of England, and to reproach the Christian religion is to speak in subversion of the law."3 Eminent judges in this country have adopted this language, and applied it to prosecutions for blasphemy, where the charge consisted in malicious ridicule of the Author and Founder of the Christian religion. The early cases in New York and Massachusetts are particularly marked by clearness and precision on this point, and Mr. Justice Clayton of Delaware has also adopted and followed the ruling of Lord Chief Justice Hale, with such explanations of the true basis of these prosecutions as to give us a clear understanding of the maxim that Christianity is a part of the law of the land, as applied in these cases.5 Taken with the expla

4

1 Shaw, Ch. J., in Commonwealth v. Kneeland, 20 Pick. 213.

* People v. Ruggles, 8 Johns. 290; Commonwealth v. Kneeland, 20 Pick. 213; Updegraph v. Commonwealth, 11 S. & R. 394; State v. Chandler, 2 Harr. 553; Rex v. Waddington, 1 B. C. 26; Rex v. Carlile, 3 B. & Ald. 161.

3 King v. Taylor, 3 Keb. 607; Vent. 293.

People v. Ruggles, 8 Johns. 291; Commonwealth v. Kneeland, 20 Pick. 203. State v. Chandler, 2 Harr. 555. The case is very full, clear, and instructive, and cites all the English and American authorities. The conclusion at which it arrives is, that "Christianity was never considered a part of the common law, so far as that for a violation of its injunctions, independent of the established laws of man, and without the sanction of any positive act of Parliament made to enforce those injunctions, any man could be drawn to answer in a common-law court. It was a part of the common law, 'so far that any person reviling, subverting, or ridiculing it might be prosecuted at common law,' as Lord Mansfield has declared; because, in the judgment of our English ancestors and their judicial tribunals, he who reviled, subverted, or ridiculed Christianity did an act which struck at the foundation of their civil society, and tended by its necessary consequences to disturb that common peace of the land of which (as Lord Coke had reported) the common law was the preserver. The common law . . . . adapted itself to the religion of the country just so far as was necessary for the peace and safety of civil institutions; but it took cognizance of offences against God only when, by

nation given, there is nothing in the maxim of which the believer in any creed can justly complain. The language which the Christian regards as blasphemous, no man in sound mind can feel under a sense of duty to make use of under any circumstances. No person is therefore deprived of a right when he is prohibited, under penalties, from uttering it.

ma.

But it does not follow, because blasphemy is punishable as a crime, that therefore one is not at liberty to dispute and argue against the truth of the Christian religion, or of any accepted dogIts" divine origin and truth" are not so far admitted in the law as to preclude their being controverted. To forbid discussion upon this subject, except by the various sects of believers, would be to abridge the liberty of speech and of the press in a point which, with many, would be regarded as most important of all. Blasphemy implies something more than a denial of any of the truths of religion, even of the highest and most vital. A bad motive must exist; there must be a wilful and malicious attempt to lessen men's reverence for the Deity, or for the accepted religion. But outside of such wilful and malicious attempt, there is a broad field for candid investigation and discussion, which is as much open to the Jew and the Mahometan as to the professors of the Christian faith. "No author or printer who fairly and conscientiously promulgates the opinions with whose truths he is impressed, for the benefit of others, is answerable as a criminal. A malicious and mischievous intention is, in such a case, the broad boundary between right and wrong; it is to be collected from the offensive. levity, scurrilous and opprobrious language, and other circumstances, whether the act of the party was malicious." Legal blasphemy implies that the words were uttered in a wanton manner," with a wicked and malicious disposition, and not in a serious discussion upon any controverted point in religion." The courts have always been careful, in administering the law, to say that they did not intend to include in blasphemy, disputes between learned men upon particular controverted points. The consti

their inevitable effects, they became offences against man and his temporal security."

1

Updegraph v. Commonwealth, 11 S. & R. 394.

2 People v. Ruggles, 8 Johns. 293, per Kent, Ch. J.

3 Rex v. Woolston, Strange, 834, Fitzg. 64 ; People v. Ruggles, 8 Johns. 293, per Kent, Ch. J.

tutional provisions for the protection of religious liberty not only include within their protecting power all sentiments and professions concerning or upon the subjects of religion, but they guarantee to every one a perfect right to form and to promulgate such opinions and doctrines upon religious matters, and in relation to the existence, power, and providence of a Supreme Being, as to himself shall seem just. In doing this, he acts under an awful responsibility, but it is not to any human tribunal.1

1 Per Shaw, Ch. J., in Commonwealth v. Kneeland, 20 Pick. 234. The language of the courts has perhaps not always been as guarded as it should have been on this subject. In The King v. Waddington, 1 B. & C. 26, the defendant was on trial for blasphemous libel in saying that Jesus Christ was an impostor, and a murderer in principle. One of the jurors asked the Lord Chief Justice (Abbott) whether a work which denied the divinity of our Saviour was a libel. The Lord Chief Justice replied that "a work speaking of Jesus Christ in the language used in the publication in question was a libel, Christianity being a part of the law of the land." This was doubtless true, as the wrong motive was apparent; but it did not answer the juror's question. On motion for a 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 that 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 G. 3, ch. 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 G. 3, ch. 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, ch. 18, exempted all Protestant dissenters, except such as denied the Trinity, and the penalties or disabilities which the 9 & 10 W. 3, imposed on those who denied the Trinity. The 1 W. & M. Sess. 1, ch. 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 nonconformity to its rites. 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. 3 was to give security to the government, by rendering men incapable of office who entertained opinions hostile to the established religion. The only penalty imposed by that statute is exclusion from office, and that penalty is incurred by any manifestations 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

Other forms of profanity, besides that of blasphemy, are also made punishable by statute in the several States. These cases are of a character which no one can justify, and which involve 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 belief. The statutes for the punishment of public profanity require no further defence than the natural impulses of every man who believes in a Supreme Being, and recognizes his right to our

reverence.

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 by all. It is no hardship to any one to compel him to abstain from profanity or blasphemy, and none can complain that his rights of conscience are invaded by this enforced respect to a prevailing religious sentiment. But the Jew, who is forced to observe 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 blasphemy, or as a sanitary regulation based upon the demonstration of experience that one day's rest in seven is needful to recuperate the exhausted energies of body and mind. If 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 ScripA 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.

tures.

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

sustained on the first ground, it must be held that, to the Jew or the Seventh-day Baptist, such a law is not to be regarded as a violation of religious liberty, but rather as an enforced deference which one differing from the common belief pays to the public conscience. The Supreme Court of Pennsylvania have preferred to defend such legislation upon the second ground, rather than the first; but it 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.2 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 care

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 attend, 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 establishment 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 seventh-day 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 requirement any religious obligation." Specht v. Commonwealth, 8 Penn. St. 312.

2 Commonwealth v. Wolf, 3 S. & R. 50; Commonwealth v. Lisher, 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 was not sufficient cause for a continuance. But quære of this.