"It is not an auto da fé, displaying vengeance; but a law, punishing with great mildness, a gross offence against public decency and public order, tending directly to disturb the peace of the commonwealth. Chief Justice Swift, in his system of Laws, 2 vol., 825, has some very just reasoning on the subject. He observes : 'To prohibit the open, public, and explicit denial of the popular religion of a country, is a necessary measure to preserve the tranquillity of a government. Of this, no person in a Christian country can complain; for, admitting him to be an infidel, we must acknowledge that no benefit can be derived from the subversion of a religion which enforces the purest morality.' In the Supreme Court of New York it was solemnly determined, that Christianity was part of the law of the land, and that to revile the Holy Scriptures was an indictable offence. The case assumes, says Chief Justice Kent, that we are a Christian people, and the morality of the country is deeply engrafted on Christianity. Nor are we bound by any expression in the constitution, as some have strangely supposed, not to punish at all, or to punish indiscriminately the like attack upon Mahomet or the Grand Lama. The People v. Ruggles, 8 Johnston, 290. This decision was much canvassed in the New York Convention, 1821. Debates, 463. An article was proposed in the new constitution, declaring that the judiciary should not declare any particular religion the law of the land. This was lost by a vote of seventy-four to forty-one. It is a mistake to suppose that this decision was founded on any special provision in the Constitution. It has long been firmly settled, that blasphemy against the Deity generally, or attack on the Christian religion indirectly, for the purpose of exposing its doctrines to ridicule and contempt, is indictable and punishable as a temporal offence. The principles and actual decisions are, that the publication, whether written or oral, must be malicious, and designed for that end and purpose; both the language of indictments, and the guarded expressions of judges show, that it never was a crime at the common law, seriously and conscientiously to discuss theological and religious topics, though in the course of such discussions doubts may have been created and expressed on doctrinal points, and the force of a particular proof of Scripture evidence casually weakened, or the authority of particular important texts disputed; and persons of a different religion, as Jews, though they must necessarily deny the authenticity of other religions, have never been punished as blasphemers or libellers at common law for so doing. All men, of conscientious religious feeling, ought to concede outward respect to every mode of religious worship. Upon the whole, it may not be going too far to infer, from decisions, that no author or printer, who fairly and conscientiously promulgates the opinions with whose truth he is impressed, for the benefit of others, is answerable as a criminal; that a malicious and mischievous intention is, in such a case, the broad boundary between right and wrong, and that it is to be collected from the offensive levity, scurrilous and opprobrious language, and other circumstances, whether the act of the party was malicious; and since the law has no means of distinguishing between different degrees of evil tendency, if the matter published contains any such evil tendency, it is a public wrong. An offence against the public peace may consist either of an actual breach of the peace, or doing that which tends to provoke and excite others to do it.

Within the latter description fall all acts and all attempts to produce disorder, by written, printed, or oral communications, for the purpose of generally weakening those religious and moral restraints, without the aid of which mere legislative provisions would prove ineffectual. No society can tolerate a wilful and despiteful attempt to subvert its religion, no more than it would break down its laws-a general, malicious, and deliberate intent to overthrow Christianity, general Christianity. This is the line of indication, where crime commences, and the offence becomes the subject of penal visitation. The species of offence may be classed under the following heads-I. Denying the Being and Providence of God. 2. Contumelious reproaches of Jesus Christ; profane and malevolent scoffing at the Scriptures, or exposing any part of them to contempt and ridicule. 3. Certain immoralities tending to subvert all religion and morality, which are the foundations of all governments. Without these restraints no free government could long exist. It is liberty run mad, to declaim against the punishment of these offences, or to assert that the punishment is hostile to the spirit and genius of our government. They are far from being true friends to liberty who support this doctrine, and the promulgation of such opinions, and general receipt of them among the people, would be the sure forerunners of anarchy, and finally of despotism. Amidst the concurrent testimony of political and philosophical writers among the Pagans, in the most absolute state of democratic freedom, the sentiments of Plutarch, on this subject, are too remarkable to be omitted. After reciting that the first and greatest care of the legislators of Rome, Athens, Lacedaemon, and Greece in general, was by instituting solemn supplications and forms of oaths, to inspire them with a sense of the favour or displeasure of Heaven, that learned historian declares, that we have met with towns unfortified, illiterate, and without the conveniences of habitations; but a people wholly without religion, no traveller hath yet seen; and a city might as well be erected in the air, as a state be made to unite, where no divine worship is attended. Religion he terms the cement of civil union, and the essential support of legislation. No free government now exists in the world, unless where Christianity is acknowledged, and is the religion of the country. So far from Christianity, as the counsel contends, being part of the machinery necessary to despotism, the reverse is the fact. Christianity is part of the common law of this state. It is not proclaimed by the commanding voice of any human superior, but expressed in the calm and mild accents of customary law. Its foundations are broad, and strong, and deep; they are laid in the authority, the interest, the affections of the people. Waiving all questions of hereafter, it is the purest system of morality, the firmest auxiliary, and only stable support of all human laws. It is impossible to adminster the laws without taking the religion which the defendant in error has scoffed at, that Scripture which he has reviled, as their basis; to lay aside these is at least to weaken the confidence in human veracity, so essential to the purposes of society, and without which no question of property could be decided, and no criminal brought to justice; an oath in the common form, on a discredited book, would be a most idle ceremony. This act was not passed, as the counsel supposed, when religious and civil tyranny were at their height; but on the breaking forth of the sun of religious liberty, by those

who had suffered much for conscience' sake, and fled from ecclesiastical oppression. The counsel is greatly mistaken in attributing to the common law the punishment at the stake, and by the faggot. No man ever suffered at common law for any heresy. The writ de haeretico comburendo, and all the sufferings which he has stated in such lively colours, and which give such a frightful, though not exaggerated picture, were the enactments of positive laws equally barbarous and impolitic. There is no reason for the counsel's exclamation, Are these things to be revived in this country, where Christianity does not form part of the law of the land! It does form, as we have seen, a necessary part of our common law; it inflicts no punishment for a non-belief in its truths; it is a stranger to fire and to faggots, and this abused statute merely inflicts a mild sentence on him who bids defiance to all public order, disregards all decency, by contumelious reproaches, scoffing at and reviling that which is certainly the religion of the country; and when the counsel compared this act against blasphemy to the act against witchcraft, and declared this was equally absurd, I do not impute to him that which I know his heart abhors, a scoffing at religion, but to the triteness of the topics. It is but a barren field, and must contain a repetition of that which has been so often refuted. It is not argument. He has likewise fallen into error with respect to the report of the judges of the Supreme Court on the British statute de religiosis, and of mortmain, parts of which are not incorporated, as being inapplicable to the state of the country; these statutes were made to resist the encroachments of religious bodies, in engrossing great landed estates, and holding them in mortmain, but these are adopted, so far as relates to the avoidance of conveyances to the use of bodies corporate, unless sanctioned by the charter declaring void all conveyances to superstitious uses. The present statute is called the statute de religiosis, from the initiatory words of the act. It clipped the wings of ecclesiastical monopoly, and avoided conveyances to superstitious uses, but had no more relation to the doctrines of Christ than of Mahomet; the counsel has confounded the name de religiosis with the doctrines of Christianity, and drawn a false conclusion; because the statute de religiosis was not applicable to the country, therefore religion itself was not, and because they incorporated only part of the statutes avoiding conveyances to superstitious uses, therefore Christianity was superstition, and is abolished. This argument is founded on misconception, and is a nullity. The plaintiff in error has totally failed to support his grand objection to this indictment, for Christianity is part of the common law. The act against blasphemy is neither obsolete nor virtually repealed, nor is Christianity inconsistent with our free governments or the genius of the people.

66 'As I understand, this writ of error was taken out with a view to decide the question, whether Christianity was part of the law of the land, and whether it was consistent with our civil institutions. I have considered it a duty to be thus explicit. No preference is given by law to any particular religious persuasion. Protection is given to all by our laws. It is only the malicious reviler of Christianity who is punished. By general Christianity is not intended the doctrine of worship of any particular church or sect; the law leaves these disputes to theologians; it is not known as a standard by which to decide po

litical dogmas. The worship of the Jews is under the protection of the law, and all prosecutions against Unitarians have been discontinued in England. The statute of William III. Ch. 3, with its penalties against Anti-Trinitarians, is repealed, and it never was punishable at common law; and no partial mode of belief or unbelief were the objects of coercion by the civil magistrate. Whatever doctrines were heretical, were left to the ecclesiastical judges, who had a most arbitrary latitude allowed to them. Freedom from the demon of persecution, and the scourge of established churches was not on the European, but on our side of the Atlantic. I do not by this allude to any particular church, for the Puritans in turn became persecutors, when they got the upper hand. By an ordinance of 23d of August, 1645, which continued until the restoration, to preach, write or print any thing in derogation, or disapproving of the directory to the established puritanical form of worship, subject the offender, when convicted, to a discretionary fine, not exceeding fifty pounds. Scofill, 98. While our own free constitution secures liberty of conscience and freedom of religious worship to all, it is not necessary to maintain that any man should have the right publicly to vilify the religion of his neighbours and of the country. These two privileges are directly opposed. It is open, public vilification of the religion of the country that is punished, not to force conscience by punishment, but to preserve the peace of the country by an outward respect to the religion of the country, and not as a restraint upon the liberty of conscience; but licentiousness endangering the public peace, when tending to corrupt society, is considered as a breach of the peace, and punishable by indictment. Every immoral act is not indictable, but when it is destructive of morality generally, it is because it weakens the bonds by which society is held together, and government is nothing more than public order. This was the opinion of the court in the case of Commonwealth v. Sharpless, 2 Serg. & Rawle, 101. It is not now, for the first time, determined in this court, that Christianity is part of the common law of Pennsylvania. In the case of the Guardians of the Poor v. Green, 5 Binn., 55, Judge Brackenbridge observed, the church establishment of England has become a part of the common law, but was the common law in this particular, or any part of it, carried with us in our emigration and planting a colony in Pennsylvania? Not a particle of it. On the contrary, the getting quit of the ecclesiastical establishment and tyranny was a great cause of the emigration. All things were reduced to a primitive Christianity, and we went into a new State. And Chief Justice Tilghman observes, that every country has its own common law; ours is composed partly of our own usages. When our ancestors emigrated from England, they took with them such of the English principles as were convenient for the situation in which they were about to be placed. It required time and experience to ascertain how much of the English law would be suitable to this country. The minds of William Penn and his followers would have revolted at the idea of an established church. Liberty to all, preference to none; equal privilege is extended to the mitred Bishop and the unadorned Friend.

"This is the Christianity which is the law of our land, and I do not think it will be an invasion of any man's right of private judgment, or of the most extended privilege of propagating his sentiments with regard to religion, in the

manner which he thinks most conclusive. If from a regard to decency and the good order of society, profane swearing, breach of the Sabbath, and blasphemy, are punishable by civil magistrates, these are not punished as sins of offences against God, but crimes injurious to, and having a malignant influence on society; for it is certain, that by these practices, no one pretends to prove any supposed truths, detect any supposed error, or advance any sentiment whatever."

DOCUMENT X.

Christianity a Part of the Common Law of New York. Decision in the case of the People vs. Ruggles, Aug., 1811.

"New York Supreme Court Reports, by W. Johnson," vol. viii., page 293, Philadelphia. Kent, Ch. J. gives the judgment :

"Why should not the language contained in the indictment be still an offence with us? There is nothing in our manners or institutions which has prevented the application or the necessity of this part of the common law. We stand equally in need, now as formerly, of all that moral discipline, and of those principles of virtue, which help to bind society together. The people of this state, in common with the people of this country, profess the general doctrines of christianity, as the rule of their faith and practice; and to scandalize the author of these doctrines is not only, in a religious point of view, extremely impious, but, even in respect to the obligations due to society, is a gross violation of decency and good order. Nothing could be more offensive to the virtuous part of the community, or more injurious to the tender morals of the young, than to declare such profanity lawful. It would go to confound all distinction between things sacred and profane; for, to use the words of one of the greatest oracles of human wisdom, 'profane scoffing doth by little and little deface the reverence for religion;' and who adds, in another place, 'two principal causes have I ever known of atheism-curious controversies and profane scoffing.' (Lord Bacon's Works, vol. 2, 291, 503.) Things which corrupt moral sentiment, as obscene actions, prints and writings, and even gross instances of seduction, have upon the same principle been held indictable; and shall we form an exception in these particulars to the rest of the civilized world? No government among any of the polished nations of antiquity, and none of the institutions of modern Europe, (a single and monitory case excepted), ever hazarded such a bold experiment upon the solidity of the public morals, as to permit with impunity and under the sanction of their tribunals, the general religion of the community to be openly insulted and defamed. The very idea of jurisprudence with the ancient lawgivers and philosophers embraced the religion of the country. Jurisprudentia est divinarum atque humanarum rerum notitia. (Dig., b. 1, 10, 2; Cic. De Legibus, b. 2, passim.)

"The free, equal, and undisturbed enjoyment of religious opinion, whatever it may be, and free decent discussions on any religious subject, is granted and secured; but to revile, with malicious and blasphemous contempt, the religion professed by almost the whole community, is an abuse of that right. Nor are we bound, by any expressions in the constitution, as some have strangely sup