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Being himself as the author of all good and of all law; but the same reasons of State policy which induce the government to aid institutions of charity and seminaries of instruction, will incline it also to foster religious worship and religious institutions, as conservators of the public morals, and valuable, if not indispensable, assistants in the preservation of the public order.
Nor, while recognizing a superintending Providence, are we always precluded from recognizing also, in the rules prescribed for the conduct of the citizen, the notorious fact that the prevailing religion in the States is Christian. Some acts would be offensive to public sentiment in a Christian community, and would tend to public disorder, which in a Mahometan or Pagan country might be passed by without notice, or even be regarded as meritorious; just as some things would be considered indecent, and worthy of reprobation and punishment as such, in one state of society which in another would be in accord with the prevailing customs, and therefore defended and protected by the laws. The criminal laws of every country are shaped in greater or less degree by the prevailing public sentiment as to what is right, proper, and decorous, or the reverse ; and they punish those acts as crimes which disturb the peace and order, or tend to shock the moral sense or sense of propriety and decency, of the community. The moral sense is largely regulated and controlled by the religious belief; and therefore it is that those things which, estimated by a Christian standard, are profane and blasphemous, are properly punished as crimes against society, since they are offensive in the highest degree to the general public sense, and have a direct tendency to undermine the moral support of the laws, and to corrupt
the community. [* 472] * It is frequently said that Christianity is a part of the
law of the land. In a certain sense and for certain purposes this is true.
The best features of the common law, and especially those which regard the family and social relations ; which compel the parent to support the child, the husband to support the wife; which make the marriage-tie permanent and forbid polygamy, — if not derived from, have at least been improved and strengthened by, the prevailing religion and the teachings of its sacred Book. But the law does not attempt to enforce the precepts of Christianity on the ground of their sacred character or divine origin. Some of those precepts, though we
may admit their continual and universal obligation, we must nevertheless recognize as being incapable of enforcement by human laws. That standard of morality which requires one to love his neighbor as himself we must admit is too elevated to be accepted by human tribunals as the proper test by which to judge the conduct of the citizen ; and one could hardly be held respon
1 sible to the criminal laws if in goodness of heart and spontaneous charity he fell.something short of the Good Samaritan. The precepts of Christianity, moreover, affect the heart, and address themselves to the conscience ; while the laws of the State can regard the outward conduct only: and for these several reasons Christianity is not a part of the law of the land in any sense which entitles the courts to take notice of and base their judgments upon it, except so far as they can find that its precepts and principles have been incorporated in and made a component part of the positive law of the State.
Mr. Justice Story has said in the Girard Will case that, although Christianity is a part of the common law of the State, it is only so in this qualified sense, that its divine origin and truth are admitted, and therefore it is not to be maliciously and openly reviled and blasphemed against, to the annoyance of believers or to the injury of the public. It may be doubted, however, if the punishment of blasphemy is based necessarily upon an admission of the divine origin or truth of the Christian religion, or incapable of being otherwise justified.
Blasphemy has been defined as consisting in speaking evil of the Deity, with an impious purpose to derogate from the divine majesty, and to alienate the minds of others from the love and reverence of God. It is purposely using words concerning the Supreme Being calculated and designed to impair and destroy the reverence, respect, and confidence due to him, as the intelligent Creator, Governor, and Judge of the world. It embraces the idea of detraction as regards the character and attributes of
1 Andrew v. Bible Society, 4 Sandf. Dr. S. T. Spear in his book entitled 182; Ayres v. Methodist Church, 3 Religion and the State.” Sandf. 377; State v. Chandler, 2 Harr. 2 Vidal v. Girard's Ex’rs, 2 How. 555; Bloom v. Richards, 2 Ohio, n. s. 198. Mr. Webster's argument that 387; Board of Education v. Minor, Christianity is a part of the law of 23 Ohio, n. s. 210. The subject is Pennsylvania is given in 6 Webster's largely considered in Hale v. Everett, Works, p. 175. 53 N. H. 1, 204 et seq., and also by
God, as calumny usually carries the same idea when applied to an individual. It is a wilful and malicious attempt to lessen men's reverence of God, by denying his existence or his attributes as an
intelligent Creator, Governor, and Judge of men, and to (* 473] prevent their having confidence in him as such.
* 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.?
In an early case where 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 4 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 and justitication of these prosecutions as to give us a clear understanding of the maxim that Christianity is a part of the law of the land,
Shaw, Ch. J., in Commonwealth was convicted of publishing libels, v. Kneeland, 20 Pick. 213.
ridiculing the miracles of Christ, his 2 People v. Ruggles, 8 Johns. 290; life and conversation. Lord Ch. J. Commonwealth v. Kneeland, 20 Pick. Raymond in that case says: “ I would 213; Updegraph v. Commonwealth, have it taken notice of, that we do 11 S. & R. 394; State v. Chandler, not meddle with the difference of 2 Harr. 553; Rex v. Waddington, 1 opinion, and that we interfere only B. & C. 26; Rex v. Carlile, 3 B. & where the root of Christianity is Ald. 161; Cowan v. Milbourn, Law struck at." R. 2 Exch. 230.
4 People v. Ruggles, 8 Johns. 291; 3 The King v. Taylor, 3 Keb. 607, Commonwealth v. Kneeland, 20 Pick. Vent. 293. See also The King v. 203. See also Zersweiss v. James, Woolaston, 2 Stra. 814, Fitzg. 64, 63 Penn. St. 465, 471; McGinnis v. Raym. 162, in which the defendant Watson, 41 Penn. St. 9, 14.
as understood and applied by the courts in these cases. Taken with the explanation * given, there is nothing in [* 474] the maxim of which the believer in any creed, or the disbeliever of all, 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, and no person is therefore deprived of a right when he is prohibited, under penalties, from uttering it.
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 dogma. Its us divine origin and truth” are not so far admitted in the law as to preclude their being controverted. To forbid discussion on 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
1 State v. Chandler, 2 Harr. 555. ancestors and their judicial tribunals, The case is very full, clear, and in- he who reviled, subverted, or ridiculed structive, and cites all the English Christianity, did an act which struck and American authorities. The con- at the foundation of our civil society, clusion at which it arrives is, that and tended by its necessary conse“ Christianity was never considered quences to disturb that common peace a part of the common law, so far as of the land of which (as Lord Coke that for a violation of its injunctions had reported) the common law was independent of the established laws the preserver. The common law ... of man, and without the sanction of adapted itself to the religion of the any positive act of Parliament made country just so far as was necessary to enforce those injunctions, any man for the peace and safety of civil incould be drawn to answer in a com- stitutions; but it took cognizance of mon-law court. It was a part of the offences against God only, when, by common law, .so far that any person their inevitable effects, they became reviling, subverting, or ridiculing it offences against man and his temporal might be prosecuted at common law,' security." See, also, what is said on as Lord Mansfield has declared; be- this subject by Duer, J., in Andrew cause, in the judgment of our English v. Bible Society, 4 Sandf. 182.
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.” 1 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.? (* 475] The constitutional * provisions for the protection of relig
ious liberty not only include within their protecting power all sentiments and professions concerning or upon the subject 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, attributes, and providence of a Supreme Being as to himself shall seem reasonable and correct. In doing this he acts under an awful responsibility, but it is not to any human tribunal.4
Updegraph v. Commonwealth, 8 Rex v. Woolaston, Stra. 834; 11 S. & R. 394. In Ayres v. Metho- Fitzg. 64; People
v. Ruggles, 8 dist Church, 3 Sandf. 377, Duer, J., Johns. 293, per Kent, Ch. J. in speaking of “pious uses,” says : 4 Per Shaw, Ch. J., in Common“ If the Presbyterian and the Baptist, wealth v. Kneeland, 20 Pick. 234. the Methodist and the Protestant The language of the courts has perEpiscopalian, must each be allowed haps not always been as guarded as to devote the entire income of his it should have been on this subject. real and personal estate, for ever, to In The King v. Waddington, 1 B. & the support of missions, or the C. 26, the defendant was on trial for spreading of the Bible, so must the blasphemous libel, in saying that Roman Catholic his to the endow- Jesus Christ was an impostor, and ment of a monastery, or the founding a murderer in principle. One of the of a perpetual mass for the safety of jurors asked the Lord Chief Justice his soul; the Jew his to the transla- (Abbott) whether
work which tion and publication of the Mishna or denied the divinity of the Saviour the Talmud, and the Mahometan (if was a libel. The Lord Chief Justice in that colluvies gentium to which this replied that “a work speaking of city (New York], like ancient Rome, Jesus Christ in the language used in seems to be doomed, such shall be the publication in question was a among us), the Mahometan his to libel, Christianity being a part of the the assistance or relief of the annual law of the land." This was doubtpilgrims to Mecca."
less true, as the wrong motive was 2 People v. Ruggles, 8 Johns. 293, apparent; but it did not answer the per Kent, Ch. J.
juror's question. On motion for a