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.

"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 responsible 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 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 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.' 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 and justification 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 understood and applied by the courts in these cases. Taken with the explanation given, there is nothing in 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 '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 Mohammedan 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 be tween 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 constitutional provisions for the protection of religious 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 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 In doing this he acts under an awful responsibility, but it is not to any human tribunal.

correct.

"Other forms of profanity besides that of blasphemy are also made punishable by statutes in the several States. 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 forced respect to a prevailing religious 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 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 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.

"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 the religious scruples of any, however little reason may seem to others to underlie them. Even in the important matter 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.

"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. 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."

DOCUMENT VIII.

George Bancroft on the Constitutional Guarantee of Religious Liberty.

From his "History of the Formation of the Constitution of the United States of America," New York, 1882, vol. ii., p. 326.

66

'Vindicating the right of individuality even in religion, and in religion above all, the new nation dared to set the example of accepting in its relations to God the principle first divinely ordained in Judea. It left the management of temporal things to the temporal power; but the American Constitution, in harmony with the people of the several States, withheld from the federal government the power to invade the home of reason, the citadel of conscience, the sanctuary of the soul; and not from indifference, but that the infinite spirit of eternal truth might move in its freedom and purity and power." To this we add, by permission, a private letter in answer to a question of the author:

"NEWPORT, R. I., August 30, 1887.

"MY DEAR DR. SCHAFF :-I have yours of the 12th. By the Constitution no power is held by Congress except such as shall have been granted to it. Congress therefore from the beginning was as much without the power to make a law respecting the establishment of religion as it is now after the amendment has been passed. The power had not been granted, and therefore did not exist, for Congress has no powers except such as are granted; but a feeling had got abroad that there should have been a Bill of Rights, and

therefore to satisfy the craving, a series of articles were framed in the nature of a Bill of Rights, not because such a declaration was needed, but because the people wished to see certain principles distinctly put forward as a part of the Constitution. The first amendment, so far as it relates to an establishment of religion, was proposed without passion, accepted in the several States without passion, and so found its place as the opening words of the amendments in the quietest manner possible. This, I think, is a full answer to your question.

"I take this occasion to express to you my great regard and hopes for your health and prosperity.

"Yours most truly,

"Rev. Dr. Philip Schaff,

GEO. BANCROFT.

"Lake Mohonk Mountain House,

"Monona Lake, Ulster Co., N. Y."

DOCUMENT IX.

Christianity a Part of the Common Law of PennsylvaniaDecision of the Supreme Court of Pennsylvania in the Case of Updegraph v. the Commonwealth, February,1822. From the "Pennsylvania Supreme Court Reports," Serg. & R., vol. xi., p. 398, Philadelphia, 1845.

"The opinion of the court was delivered by DUNCAN, J. This was an indictment for blasphemy, founded on an act of assembly, passed in 1700, which enacts that whosoever shall wilfully, premeditatedly, and despitefully blaspheme and speak loosely and profanely of Almighty God, Christ Jesus, the Holy Spirit, or the Scriptures of Truth, and is legally convicted thereof, shall forfeit and pay the sum of ten pounds.

"It charges the defendant with contriving and intending to scandalize and bring into disrepute, and vilify the Christian religion and the Scriptures of Truth, and that he, in the presence and hearing of several persons, unlawfully, wickedly, and premeditatedly, despitefully, and blasphemously, did say, among other things, in substance as follows: 'That the Holy Scriptures were a mere fable; that they were a contradiction, and that, although they contained a number of good things, yet they contained a great many lies,' and the indictment concludes, to the great dishonor of Almighty God, to the great scandal of the profession of the Christian religion, to the evil example of all others in like case offending, and against the form of the act of assembly in such case made and provided.

"The jury have found that the defendant did speak words of that substance in the temper and with the intent stated. This verdict excludes every thing like innocence of intention; it finds a malicious intention in the speaker to vilify the Christian religion and the Scriptures, and this court cannot look beyond the record, nor take any notice of the allegation, that the words were uttered by the defendant, a member of a debating association, which convened weekly for discussion and mutual information, and that the expressions were used in the course of argument on a religious question. That there is an association in