though 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 [* 473] having confidence in him as such.2 *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.3

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

Vidal v. Girard's Ex'rs, 2 How. 198. Mr. Webster's argument that Christianity is a part of the law of Pennsylvania, is given in 6 Webster's Works, p. 175.

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

3 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; Cowan v. Milbourn, Law R. 2 Exch. 230.

2

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 [* 474] 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

The King v. Taylor, 3 Keb. 607, Vent. 293. See also The King v. Woolaston, 2 Stra. 844, Fitzg. 64, Raym. 162, in which the defendant was convicted of publishing libels, ridiculing the miracles of Christ, his life and conversation. Lord Ch. J. Raymond in that case says: "I would have it taken notice of, that we do not meddle with the difference of opinion, and that we interfere only where the root of Christianity is struck at.”

2

* People v. Ruggles, 8 Johns. 291; Commonwealth v. Kneeland, 20 Pick. 203.

3 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 18, 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 our 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 their inevitable effects, they became offences against man and his temporal security." See, also, what is said on this subject by Duer, J., in Andrew v. Bible Society, 4 Sandf. 182.

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 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, scurillous 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." 2 The courts have always been careful, in administering the law, to say that they did not intend to include in blasphemy disputes between

Updegraph v. Commonwealth, 11 S. & R. 394. In Ayres v. Methodist Church, 3 Sandf. 377, Duer, J., in speaking of "pious uses," says: "If the Presbyterian and the Baptist, the Methodist and the Protestant Episcopalian must each be allowed to devote the entire income of his real and personal estate, forever, to the support of missions, or the spreading of the Bible, so must the Roman Catholic his to the endowment of a monastery, or the founding of a perpetual mass for the safety of his soul; the Jew his to the translation and publication of the Mishna or the Talmud, and the Mahometan (if in that colluvies gentium to which this city [New York], like ancient Rome, seems to be doomed, such shall be among us), the Mahometan his to the assistance or relief of the annual pilgrims to Mecca."

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

learned men upon particular controverted points.1 The constitutional * provisions for the protection of religious [* 475] 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.2

Rex v. Woolaston, Stra. 834, Fitzg. 64; People v. Ruggles, 8 Johns. 293, per Kent, Ch. J.

2 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 the 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 pårt 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 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 hostile to the established religion. The only penalty imposed by that statute is exclusion from

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*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 enforced respect to a prevailing religious sentiment. But the Jew who is forced to respect the first day of the week,

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 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.