37 Mass. 206 | Mass. | 1838
Lead Opinion
delivered the opinion of a majority of the Court. This cause was argued some time since, and partly on account of the intrinsic difficulty attending some of the questions raised in the case, and a difference of opinion among the judges on some of those questions, it has stood over for consideration and advisement, to the present time.
The indictment may be considered both as a charge ot composing, printing and publishing an impious, obscene and blasphemous libel, and also as a direct charge of the crime of blasphemy. It is perhaps immaterial, whether the present indictment be considered as principally charging the one or the other ; because, although these offences are in many respects, technically distinct, and may be differently charged, yet the same act may and often does constitute both ; and the present indictment contains averments applicable to both. The latter consists in blaspheming the holy name of God, by denying, cursing or contumeliously reproaching God, his creation, government or final judging of the world ; and this may be done by language orally uttered, which would not be a
The case was argued both on a motion in arrest of judgment, and on a motion for a new trial, on a report made by the judge who presided at the trial. It is perhaps a subject of regret, that the cause was argued by the defendant himself, without the aid of counsel competent to assist him, since it may leave some reason to apprehend, that the questions really intended to be submitted to the consideration of the Couit, may not have been presented in the manner best adapted to a clear and satisfactory statement and discussion of them. The defendant however had a perfect right thus to conduct his defence ; and it is in no other respect a subject of regret, than that it throws upon the Court some embarrassment, arising from the difficulty of comprehending the precise grounds of defence, which the defendant intended to take at the trial, and which he wishes the Court now to revise.
The indictment charges the defendant in the terms of the statute, by alleging that he did, at the time and place, &.C., wilfully blaspheme the holy name of God, by denying and contumeliously reproaching God, his creation, government and final judging of the world ; and it proceeds to allege the means of doing this to be, by composing, printing and publishing a libel, setting out in terms, various passages from that publication. Among other parts of this libel, the following passage was relied on, connected with evidence of the intent and purpose of the publication, to prove the blasphemy, by denying God, and his creation, government and final judging of the world, viz. “ Universalista believe in a god which I .do not; but believe that their god, with all his moral attributes (aside from nature itself) is nothing more than a mere chimera of their own imagination.” The other parts of the publication, many of which are set out at large in the indictment but which it is not necessary to repeat, were relied upon, to show the sense, in which the language was used, and the intent, design and purpose, with which it was used.
The motion in arrest of judgment, relies mainly upon twc grounds;
2. That the statute itself is contrary to the constitution of the Commonwealth; and therefore that the statute itself is inoperative and void.
That part of the provision of the statute, on which the question arises, is as follows ; “ That if any person shall wilfully blaspheme the holy name of God, by denying, cursing, or contumelious!}' reproaching God, his creation, government, or final judging of the. world,” &c. St. 1782, c. 8. This provision is reenacted in the same terms by the revised statutes. Revised Stat. c. 130, § 15.
In order to pass a proper judgment upon the construction and operation of the statute, it becomes necessary to ascertain with as much clearness as practicable, what is intended to be prohibited by it, under the term “ blasphemy.”
In general, blasphemy may be described, 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 God, 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, when used towards the Supreme Being ; 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. Blackstone, according to bis usual mode of describing each offence in the shortest possible terms in which it may be made intelligible, speaks of it as “ blasphemy against the Almighty, by denying his being ot providence.” 4 Bl. Comm. 59.
These definitions and descriptions from lexicographers and ’aw writers, might be indefinitely multiplied ; but it would throw little light on the subject. So in the eailier statutes of
The Provincial Act of 1697 is thus expressed ; “ If any person shall presume wilfully to blaspheme the holy name ol God, Father, Son, or Holy Ghost, either by denying, cursing or reproaching the true God, bis creation or government of the world,” &c. Anc. Charters, &c., 302.
In all these different descriptions of the offence, one idea is common to them all, which is, that the wilful denial of God, and of his creation and government of the world, with an intent anti purpose to impair and destroy the reverence due to him, is the offence intended to be prohibited.
With these views of what is intended to be prohibited and made penal by the statute, the question again recurs, whether this crime and offence is properly and sufficiently charged in this indictment. After verdict, all the facts legally and properly charged in the indictment, must be taken to be true, and the only question is, whether these facts, when proved, constitute a legal and indictable offence. The offence is charged nearly in the words of the statute. After the usual introductory averments of unlawful intent and disposition, and after alleging the publication of the libel by the defendant, describing it in general terms, and describing him as the editor and publisher, it proceeds to aver, that the defendant did wilfully blaspheme the holy name of God, by denying and contumeliously reproaching God, his creation, government and final-judging of the world, and by reproaching Jesus Christ and the Holy Ghost, and contumeliously reproaching the holy word of God. It then proceeds to cite sundry passages, from the publication thus characterized, as particular instances, and specifications of the general charge thus made, among which are those afterwards alluded to.
Among the specifications in support of the general aver ment, and the one mainly relied on, to sustain the charge of denying God and his creation, government and final judging of the world, are those in relation to the Universalists, alleged to be wilfully uttered, of and concerning God, &c.
2. Universalists believe in Christ, which I do not; but believe that the whole story concerning him is as much a fable and a fiction as that of the god Prometheus, the tragedy of whose death is said to have been acted on the stage in the theatre at Athens, 500 years before the Christian era.
3. Universalists believe in miracles, which I do not; but believe that every pretension to them can either be accounted for on natural principles, or else is to be attributed to mere trick and imposture.
4. Universalists believe in the resurrection of the dead, in immortality and eternal life, which I do not; but believe that all life is mortal, that death is an eternal extinction of life to the individual who possesses it, and that no individual life is, ever was, or ever will be eternal.”
It is a general rule of construction, in actions of slander, indictments for libel, and other analogous cases, where an offence can be committed by the utterance of language, orally or in writing, that the language shall be construed and understood in the sense in which the writer or speaker intended it. If therefore obscure and ambiguous language is used, or language which is figurative or ironical, courts and juries will understand it according to its true meaning and import, and the sense in which it was intended, to be gathered from the context, and from all the facts and circumstances under which it was used. There is no doubt that the language cited, if used in the connexion and with the intent and purpose charged in the indictment,, will amount to the offence contemplated in the statute ; for although the form of the' expression used by the defendant, was a denial of his belief, if under this form a wilful denial of the existence of God, his creation, &c., was intended, the language is sufficient to constitute a denial, within the meaning of the statute. Whether they were used with such unlawful intent and purpose, was a question upon the whole indictment and all the circumstances, and after verdict, if no evidence was erroneously admitted or re
2. But another ground for arresting the judgment, and one apparently most relied on and urged by the defendant, is, that this statute itself is repugnant to the constitution of the Commonwealth, and therefore wholly void.
It seems now to be somewhat late to call in question the constitutionality of a law, which has been enacted more than half a century, which has been repeatedly enforced, and the validity of which, it is believed, until this prosecution, has never been doubted, though there have been many prosecutions and convictions under it. It was itself a revision of the colonial and provincial laws, to the same effect, already cited. It was passed very soon after the adoption of the constitution, and no doubt, many members of the convention which framed the constitution, were members of the legislature which passed this law. In 1820 another convention was called to revise the constitution, the subjects of religious freedom and of universal toleration were long and earnestly discussed, but no suggestion was made, that the statute of 1782, against blasphemy, was in violation of the Declaration of Rights. More
In New Hampshire, the constitution of which State has a similar declaration of rights, the open denial of the being and existence of God, or of the Supreme Being, is prohibited by statute, and declared to be blasphemy.
In Vermont, with a similar declaration of rights, a statute was passed in 1797, by which it was enacted, that if any person shall publicly deny the being and existence of God or the Supreme Being, or shall conturneliously reproach bis providence and government, he shall be deemed a disturber of the peace and tranquillity of the State, and an offender against the good morals and manners of society, and shall be punishable by fine, and be bound to his good behaviour.
The State of Maine also, having adopted the same constitutional provision with that of Massachusetts, in her declaration of rights, in respect to religious freedom, immediately after the adoption of the constitution, reenacted the Massachusetts statute against blasphemy, with unimportant modifications.
In New York the universal toleration of all religious professions and sentiments, is secured in the most ample manner. It is declared in the constitution, art. 7, § 3, that the free exercise and enjoyment of religious worship, without discrimination or preference, shall for ever be allowed in this State to all mankind ; with the only limitation, that the liberty of conscience, thus secured, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of the State. Notwithstanding this constitutional declaration, carrying the doctrine of unlimited toleration as far as the peace and safety of any community will allow, the courts have decided that blasphemy was a crime at common law, and was not abrogated by the constitution. People v. Rugg'es, 8 Johns. R. 225.
But in order to test this argument more closely, that the statute against blasphemy is unconstitutional, it becomes necessary to consider those clauses in the Declaration of Rights which are supposed to he violated bv this law.
The other article supposed to be violated by this law, is the second, and is as follows ;
“ It is the right, as well as the duty, of all men in society, publicly, and at stated seasons, to worship the Supreme Being, the great creator and preserver of the universe. And no subject shall be hurt, molested, or restrained, in his person,
Taking this to be the true meaning, intent and construction of this statute, the Court are of opinion that it is not repugnant to the second article of the Declaration of Rights. That article is to be expounded with reference to every othei clause
3. The other questions arise upon the motion for a new trial, founded on the exceptions to the charge of the Court in matters of law, as stated in the report. The report is very brief and relates only to two points. One of the principal difficulties in the case has arisen, not so much from any differ
The first exception turns upon a question of grammatical construction. The sentence quoted is this ; “ Universahsts believe in a god which I do not.” It was contended by the defendant, that from the use of a small letter in the word god, and from the punctuation, the grammatical construction was, that it was used in a peculiar sense, as the creed, or tenets, or form of belief, of the Universahsts, as we speak of the god of the Mahommedans, or Hindoos, or Chinese, the being under
4. The other exception is attended with more difficulty ; but upon full consideration, a majority of the Court are of opinion, that the difficulty arises rather from the brief and perhaps too unqualified form in which the report is made, than from any misdirection actually given. It is stated thus in the report. “ I also instructed the jury, that the wilful denial of -the existence of any God, except the material universe itself, would be a violation of the statute, and that the statute was a constitutional law.”
From this sentence, taken without its known connexion with the record, with the evidence actually before the Court, and the grounds taken for the prosecution and defence, as a naked, insulated statement, it might appear to have been stated as law, that a wilful, that is, intentional or purposed denial of the existence of any God, other than the material universe, without regard to the motive, design or purpose, would constitute blasphemy, within the statute. But we think, from the known state of the questions before the Court, and the arguments used, that this instruction was given with the qualifications and illustrations, which the state of the case required ; that the term “ wilful,” in this report, does not merely mean “ designed ” or “ intentional,” but has a much more extensive ^nd significant meaning. It was contended on the part of the
Dissenting Opinion
dissenting. It is with great reluctance that I offer my views of this case. I am aware of the importance of the questions involved in it, and of the intrinsic difficulties and peculiar liability to misapprehension, which attend their discussion. But having formed, from the best lights within my reach and the fullest examination in my power, some opinions different from those of my learned brethren, and having come to an opposite result, I do not feel at liberty to withhold them. For however highly I may.respect the judgments of others, I cannot implicitly yield to them ; and however deeply I may distrust my own, I am bound to be governed by its dictates.
I have also some apprehension that all the grounds which might have been relied upon in defence, have not been raised and presented so clearly and fully as they might have been-The defendant availing himself of his constitutional right to manage his own cause, and being not only unused to technical
Two principal questions are presented for our consideration. The first, which arises upon the record, looks to the final termination of the prosecution. The last, which grows out of the report of the instruction to the jury, asks only for another trial.
The defendant relies mainly upon the former, and to this, as the most important, has addressed the most of his arguments. He contends that no judgment can be rendered on the verdict, because the statute upon which the indictment is founded is unconstitutional and void. He argues that it materially trenches upon the freedom of conscience, the freedom of discussion, and the freedom of the press. These rights, essential to the enjoyment of rational liberty, and indispensable requisites in all free governments, are expressly guarantied and anxiously guarded in our constitution. But they are supposed to be peculiarly liable to abuse, and it is an imperious, though perhaps somewhat difficult duty, to preserve them from this infirmity. In the shadowy confines between their enjoyment and their abuse, it may not be easy to draw a clear and definite line of demarkation, by which we may walk without dan ger of transcending it.
The statute, which is very brief, is in these words. “ If ant
This statute, the defendant contends, is in contravention of the last clause of the second article of the Bill of Rights, and so far as relates to printed blasphemies, of the sixteenth article of the same.
In examining the constitutionality of a legislative enactment, we should proceed with caution and diffidence. The power of declaring inoperative and void, a statute regularly passed with the forms and by the authority prescribed by the constitution, is a high and delicate, if not a dangerous power ; and one which every wise court will exercise with a great deference for the decision of a coordinate department of the government. Cases may exist in which it may become the duty of a court, even of a jury, and perhaps other public officers, to regard a statutory enactment as nugatory. But they are possible and extreme cases, which will rarely if ever occur. Although the power exist, yet in my opinion it should never be called into action, except in cases of a clear and palpable infringement of the constitution. A frequent resort to it by different public functionaries, would produce such instability and uncertainty in our laws as would be productive of incalculable mischief. Such variant opinions are entertained of different clauses of the constitution and their application, that a statute which one would enforce, another would disregard, and the people would never know what they might rely upon as the law of the land. The Court, therefore, from its respect for the legislature, the immediate representation of that sovereign power whose will created and can at pleasure change the constitution itself, will ever strive to sustain and not annul its expressed determination. And whenever a statute will admit of a construction consistent with the constitution, it is our duty to adopt it, although not the most natural one,. ul res mctgis valeat quam pereat. If a part of a statute be at variance with the constitu tion, it forms no objection to the validity of the residue.
To determine whether the statute impugns either of these provisions, it will be necessary to examine them with care, to ascertain, as far as may be practicable, their true meaning, and then by comparison to ascertain whether there be any incompatibility between the statutory and the constitutional provisions.
The sixteenth article is in these words ; “ The liberty of the press is essentia] to the security of freedom in a state ; it ought not, therefore, to be restrained in this Commonwealth.” The first member of the sentence expresses the importance of the object, and the last lays down the rule for its protection. In a fundamental law, like this, the terms used, though only implying obligation or duty, are equivalent to a positive command. And I understand this to be an imperative interdiction of any restraint upon the liberty of the press, obligatory upon every branch of the government.
What is the true import and effect of it ?
Under this prohibitory law the defendant claims for every citizen a right to publish, in any form, by printing or pictures, whatever he pleases, without liability to punishment. No matter how obscene, how profane, how blasphemous, how revolting to the sentiments of the community, bow shocking to their notions of decency and decorum a publication may be, no matter what motives may actuate the author, how corrupt, how malicious they may be, it is all protected by the constitution. The judiciary has no power to punish it. The legislature has no power to inhibit it.
The statement of the proposition, carried out to its legiti
The legislature have the general power to define and prescribe the punishment for crimes. They may determine what cicls shall be deemed crimes. And may they not determine what words shall be deemed criminal ? Is liberty of action less important than liberty of speech ? Is personal freedom less sacred than the freedom of the press ? With a single exception, there is no restraint upon the legislature in relation to the punishment of speech. They can punish for acts and for words, but it is argued that they cannot punish for any thing printed. Verbal slander, profanity, obscenity and blasphemy, may be interdicted, but the moment it is put in print it becomes privileged and is above legislative control. Will printed falsehood circulate less extensively, or do less injury to individuals or the public, than oral ? What good reason can be found in the constitution or in sound principle, why a man should not be answerable for the truth of what he publishes, as well as of what he speaks ?
Could the convention or the people have intended to secure to the freedom of the press so great latitude and such extraordinary immunities ? Will not these extravagant claims greatly tend to endanger this right, which is so truly valuable, and which is regarded with so much favor by the constitution ?
If we examine the history of English jurisprudence in reference to this subject, from the settlement of this country till the formation of its government, and see the nature of the restraints which in England were imposed upon the press, and which were familiar to the minds of the framers of our constitution, we can hardly doubt that they had in view principally, previous restraints ; and that their main object was to prohibit a censorship of the press. But I am not willing to limit the operation of the article to this object alone. I can conceive of other ways in which the press may be improperly restrained and other modes of invading its legitimate rights and liberty, which should fall equally within the constitutional prohibition. Fundamental laws ordained for the restraint of the government as well as the people, and intended to endure
If the convention had intended to prohibit all legislative action upon the subject, they easily could, and undoubtedly would, have used language clearly indicating such intention. They thought proper to secure to.the members of the legislature, while .in the exercise of their official duty, not only freedom of speech, but an exemption from liability for the abuse of that freedom. And they accordingly provided, in the twenty-first article, that any thing said in debate “ cannot be the foundation of any accusation or prosecution, action, or complaint in any other court or place whatsoever.” Now if they had intended to secure the same extent of immunity for the liberty of the press, they would have included it in this article or have applied the same or other equally explicit language to it in the other article. The omission is too important to be imputed to accident, and by a well known rule of construction, is decisive of the point. Expressio unius ex-clusio alterius.
The first article, the corner stone of the constitution, contains the following political expressions : “ All men are born free and equal, and have certain natural, essential, and unalien able rights ; among which "may be reckoned the right of enjoying and defending their lives and liberties ; that of acquiring, possessing and protecting property.” The rights of enjoying liberty and life, of acquiring and possessing property, are not less valuable or less deserving of constitutional protection than the liberty of the press'; nor are they guarded by less strong or explicit language ; yet no rational man can sup pose that the legislature is restrained from determining, for what deeds, property, liberty, and even life, shall be forfeited. It cannot for a moment be doubted that the legislature has the general power, in their wisdom and discretion, to determine what acts shall be deemed crimes, and to prescribe for them such punishment as they may judge proper, either by fine, by imprisonment, or by the taking of life.
The position of the defendant is, that the liberty of the press is so guarded and protected by the sixteenth article, that no law which operates in any degree to restrain a person from publishing whatever he pleases, from bad or good motives, can be reconciled with its prohibition. And yet he is constrained to admit, what no rational man can deny, that a person may be' liable, in a civil suit, for any damages which he may cause to another by a libellous publication. Injuries to feelings, to reputation, and to property, as deep and lasting, may be inflicted by a false and malicious libel, as by any violation of the rights of persons or of property. To provide no redress for such injuries, would be subversive of the principal ends of civil government. To authorize a civil suit for an injury inflicted by the press, would necessarily operate as some restraint upon what the defendant calls the liberty, but what seems to me to be the licentiousness of the press. The power which determines in what form and to what extent a publisher shall be responsible, must, from its nature, be the legislative power.
The above concession admits that libellous publications may be individual wrongs. Every crime is a private injury, as well as a public offence.
“ The distinction between public crimes and private inju ries,” says a learned annotator upon Blackstone, “ seems en
I have been led much further in the discussion of this branch of the subject than I intended, or than is necessary. And I will only add, that the constitutions of most of the States in the Union contain similar provisions ; and yet not an instance has been referred to or can be found, in which the construction contended for has been adopted. But on the contrary, as far as they have received judicial expositions they have been in accordance with the above views.
In this State, from the formation of our government to the present day, libels have ever been deemed crimes, and punished as such, by virtue of a constitutional adoption of the common law. If the sixteenth article prohibits the punishment of them, this long and uniform course of judicial decisions has been founded in error and a violation of the constitution. But we rest not only upon judicial, but legislative authority. All branches of the legislature have repeatedly recognised the existence, and of course the constitutionality of the criminal law of libel. Should the Court, against such reasons and such authority, declare it void, they would, in my opinion, deservedly subject themselves to the charge of usurpation and judicial legislation. The law has been enforced for more than half a century ; and whenever the people become dissatisfied with its operation, they have only to will its abrogation or modification and let their voice be heard through the egitimate channel, and it will be done. But until they wisl it, let no branch of the government, and least of all the judi i’iary, undertake to interfere with it.
The defendant relies with more confidence and more plausibility upon the last clause of the second article of the Bill of Rights. It is in these words. “ No subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping God, in the manner and season most agreeable to the dictates of his own conscience ; or for his religious professions or sentiments ; provided he doth not disturb the public peace, or obstruct others in their religious worship.” The first member of the sentence contains a complete proposition, and secures to every citizen of the Commonwealth perfect liberty of worship, not only as to time and mode, but the more essential parts, the principles and doctrines which be may adopt, profess and inculcate. It embraces all who believe in the existence of God, as well Jews, Mahometans and Deists, as Christians of every denomination. But clearly does not include atheists.
The second proposition contained, in this clause may fairly be stated in this connected form. “ No subject shall be hurt, molested or restrained in his person, liberty or estate, for his religious professions or sentiments.” This clearly protects every citizen, not only in adoptting, but in professing, whatever tenets he may think right ; and necessarily includes the right of advocating and disseminating them. No restraint, in this respect, is imposed. But every one, in the adoption of his moral principles and the formation of his religious creed, has an unlimited scope, and is left to the free exercise of his own reason and the unbiased dictates of his own conscience.
It is true that the next article, as it originally stood, did not seem to be perfectly consistent with this. It appeared to recognise, not only the Christian religion, but one form of it,
It has been suggested that this provision does not extend to atheists, because they do not believe in God or religion ; and therefore that their sentiments and professions, whatever they may be, cannot be called religious sentiments and professions. But this in my opinion is too narrow a construction. It is true that the term religious- is very often used in a limited sense, frequently as synonymous with pious, and sometimes as denoting devotion to a particular creed or mode of worship. Christians, Jews and Mahometans, Protestants and Catholics, and even different sects of Protestants, reciprocally accuse each other of want of religion. And individuals of every denomination are commonly called religious or irreligious, according to their characters for piety. If this limited use of the word were to be applied to this important provision, there would be danger that its construction might vary with the varying creeds of its interpreters.
This is a general proposition, which, with other fundamental principles, has been enacted by the sovereign power, into an organic law of the State, for the protection of the rights of the people and the limitation of the powers of the government. Being interwoven in the frame of the government, it was intended to continue in force as long as that should endure. It should therefore receive a liberal construction, unrestrained by the prevailing tenets of any particular time or place. In my judgment, both the spirit and the language of this provision, includes within its protecting power, all sentiments and professions concerning or upon the subject of religion ; and guaranties to every one a perfect right to form and to promulgate such opinions and doctrine upon religious matters and in
Any attempt, by legislation, to control or dictate the belief of individuals, is so impracticable, so perfectly futile, as to show at once, how entirely above all civil authority are the operations of the human mind, especially in the adoption of its religious faith.
The greatest extent to which any government could carry its power would be to compel its subjects to profess certain tenets and to prohibit the profession of others. But this would be as impolitic as it is unjust; it would en.courage imposture and hypocrisy, but would never promote sincere piety or religion.
These catholic doctrines, though better understood and more fully carried out in other times and countries, find much countenance in the ancient principles of the common law. A most learned and eminent English judge, never suspected of carrying the principles of liberty, civil or religious, too far, in the case of Harrison v. Evans, 2 Burn’s Eccles! Law, 218, uses the following strong language. “ Conscience is not controllable by human laws, nor amenable to human tribunals. Persecution, or attempts to force conscience, will never produce conviction, and are only calculated to make hypocrites or martyrs. There never was a single instance, from the Saxon times down to our own, in which a man was ever punished for erroneous opinions concerning rites or modes of worship, but upon some positive law. The common law of England, which is only common reason or usage, knows of no prosecution for mere opinions.” “ Nonconformity is no sin at the common law.” See Harrison v. E ans, 3 Bro. Parl. Cases, 470.
It is to legislative enactments that all the persecutions in the English church are to be traced. Apostasy, heresy, nonconformity, and all of the class of offences against the established church, are the creatures of express legislation and exist only on the statute book. 4 Bl. Com. ch. 4. It has been supposed that heresy was a crime at common law, and the existence of the writ de hceretico comburendo, in the Register, is
To allow and encourage discourses and arguments in proof of the existence of the Deity and in support of the Christiar. religion, and to prohibit arguments on the other side, woulc. appear to imply a want of confidence in the truth, power and efficacy of those great doctrines, which would give advantage to their opponents, and, instead of aiding and supporting them, would lead to skepticism and infidelity. These essential and all important truths are too deeply rooted and have too strong a foundation, to need or admit of the fallacious and dangerous aid of human legislation.
Upon the fullest examination which I have been able to give the two articles under consideration, I can entertain no doubt of their true import and meaning. They perfectly harmonize with each other. And taken together, they guaranty to every citizen the right to form, enjoy and promulgate such opinions, upon any subject, as bis own judgment shall dictate. They inhibit the legislature from making any law which sha'l infringe this right. It is their duty to protect it, to secure the enjoyment of it, and to guard it from, abuse. And for this purpose they may pass laws to punish those .who, under the pretence of exercising it, shall wantonly and wickedly invade the enjoyment of it by others. It cannot be necessary to the fullest enjoyment of this right by any one, that he should
The legal axiom so often applied to property, is equally applicable to these more important personal rights. Sic utere tuo ut alienum non leudas. Let each man so use his own freedom, so enjoy his own faith, and so advocate his own doctrines, as not to interrupt the full enjoyment of the same rights by others. It cannot be necessary or expedient that any man, in the inculcation of his own notions, should abuse or insult others. And. I have no doubt that a law punishing malicious falsehoods or obscene, profane or blasphemous language, used with the malicious intent to injure others, is constitutional.
The criminality in these as in all other cases, must be made to depend upon the motive. There can be no crime in law without a criminal intent. And this gives a broad and plain boundary between the real freedom of conscience, of discussion and of the press, and the abuse of it by wanton and malicious attacks upon the rights and privileges of other individuals, or of the community. If the object be to communicate facts, to discuss subjects with a view to ascertain the truth, or to disseminate opinions honestly entertained, then it is a legitimate exercise of the freedom of speech or of the press. And in such cases great latitude of argument, illustration and language would be allowed. But if the object be to calumniate, or wantonly or maliciously to cause pain or injury to others, by wounding their feelings or corrupting their principles, then it is an abuse of that freedom and the proper subject of criminal legislation. The question of malice is ahvays a question for the jury. And I can perceive no greater danger in leaving this question to the integrity and intelligence of a jury in these cases, than in cases of homicide, and other felonies and high crimes.
I have endeavoured to confine this discussion thus far entirely to the constitutional question. In regard to the expediency of exercising the power, to the wisdom of legislating upon the subject of libel, profanity or blasphemy, it is not my province to judge. Although I may have formed a decided opinion, yet it would be unbecoming my situation to
The power to legislate on this subject is not without its limits. The legislature may not, under the name of blasphemy, punish acts which are protected by the constitution. And a material inquiry in this case is, whether the legislature have in this respect transcended their duty.
The statute enacts, that “ if any person shall wilfully bias pheme the holy name of God, by denying, cursing, or contumeliously reproaching God,” &c. The Attorney General contends that one mode of committing the offence is, by denying the existence of God. And that a denial is of itself blasphemy. The language certainly will admit of this construction. And his argument in favor of it, derived from the omission of the word “ denying” in the next clause, as applicable to Jesus Christ' and the Holy Ghost, is certainly entitled to consideration. Indeed I feel bound to admit that this seems to me to be the most natural and obvious construction.
But if this be the true meaning of the statute, I am by the course of my former reasoning brought to the conclusion, that it is irreconcilable with the constitution. What one man may assert, another may deny. No one may advocate an opinion which another may not controvert. The Provincial statutes made it blasphemy to deny the divinity of Jesus Christ, or the doctrine of the Trinity. And I cannot perceive why the legislature have not the same constitutional power to punish such a denial, that they have a denial of God. We all, I presume, should resist such an exercise of power, not only on the ground of expediency, but of constitutionality.
But I think a further examination of the statute will satisfy us, that this objection may be obviated. If it will admit of two constructions, the one of which is consistent and the other inconsistent with the constitution, there can be no doubt which should be adopted. Although the statute clearly indicates that one mode of blaspheming may be by denying God ; yet I am not willing to believe that it was ntended to denominate the mere denial of itself blasphemy. Atheists might be placed
That this is the proper construction to be put upon the statute, I think will appear very clearly by an examination of the true meaning and import of the term blasphemy, in com mon acceptation as well as in legal language.
The common standard writers on criminal law, give but little precise information on the subject. Those who mention it at all, generally denounce it as a high crime, but give no accurate description of it. Collyer defines it to be “ profaneness against the general principles of religion and morality.” Collyer on Crim. Stat. 28, note. Blackstone, one of the most accurate writers on law, says, “ one of the offences more immediately against God and religion, is that of blasphemy against the Almighty, by denying his being or providence, or by contumelious reproaches of our Saviour Christ.” Hale, Hawkins, Bacon, and others, use similar language. I confess I have not been able to draw from this source a very precise and satisfactory notion of this crime. I have turned to common lexicographers and other writers, with, as I think, a little better success.
Webster defines blasphemy to be “An indignity offered to God by words or writing ; reproachful, contemptuous or irreverent words uttered impiously against Jehovah.” “ To blaspheme, to speak of the Supreme Being in terms of impious irreverence ; to revile or speak reproachfully of God, or the Holy Spirit.” Other standard English dictionaries contain substantially the same definition.
In the Universal Latin Lexicon, of Facciolatus and Forcellmus, by Bailey, Blasphemia is defined, “ reviling words,
The civil lawyers attach substantially the same meaning to the word.
Voet thus describes it, “ In Deum blasphemia, qua Jo Deo pugnantia cum ejus natura et sanctitate, cum contemptu, et velut in contumeliam ejus, proferuntur.” Comm. ad Pand. lib. 48. tit. 4. no. 1. And Clarus says, “ Blasphemia est omne convitium, contumelia vel malediction in Dei nomen prolatum.”
We can derive no aid from the etymology of the word ; nor are we in any danger of being misled by it It cannot be said to be derived from the Greek ; for it is an original Greek word adopted into the Latin and English languages with no alteration, unless a slight change of the termination may be called one.
Doctor Campbell, in his able and excellent work upon the Four Gospels, gives a learned and sensible explanation of the subject. The original word blasphemia, he says, denotes calumny, detraction, reproachful or abusive language. Vol. ii. p. 77. Again he says, (p. 79,) it "comprehends all sorts of verbal abuse, imprecation, reviling and calumny.” By referring to the numerous passages in the New Testament where this word and its conjugates are used, it is very apparent that it was not aimed exclusively against God, but was used with reference to angels, to Moses, and to other men. And in the 9th verse of the Epistle of Jude, it is applied directly to the devil. In the more modern application of the word to the Deity and to religion, it retains much of its original meaning. It carries along with it the former quality of a calumnious, reviling intent. By a review of all the above definitions and descriptions of blasphemy, it will be seen that a wicked disposition of mind and a malicious motive, rather than the avowal of opinions, characterize the crime. It consists in the wicked and malicious purpose of injuring and molesting others, rather than the dissemination of erroneous
The legal authorities too, if fairly examined, will, I think, give some support to the same view. Even where the general doctrine appears to make blasphemy consist in a profession of atheism, it will commonly be found to be qualified by the existence of a wicked intent. The law in this respect is well stated and explained by Hume, an able Scotch writer upon criminal law. 1 Hume on Grim. Law, 559. He says, “ blasphemy, or as some of the foreign doctors, with more fancy than propriety, have termed it, the crime of treason or Isese majesty against God, consists in the denial of his being, attributes or nature, or in the uttering of impious and profane things against God, or the authority of the holy Scriptures. According to the same lawyers, who may here appeal to the acceptation of the term in common language, blasphemy is only committed by the uttering of such things, when it is done in a scoffing and railing manner ; out of a reproachful disposition in the speaker, and; as it were, with passion against the Almighty, rather than with any purpose of propagating the irreverent opinion. The like sentiments uttered dispassionately or conveyed in any calm or advised form, are rather a heresy or an apostasy than a proper blasphemy.” The distinction is here clearly shown between reproachful abuse or malicious scoffing, which may be called blasphemy, and the propagation of erroneous or heretical doctrines.
Lord Commissioner Whitlocke, in the case before cited, says, “ Heresy is crimen judicii, an erroneous opinion.” Blasphemy is “ crimen malilice, a reviling the name and honor of God.” And Chief Justice Kent, in an able opinion in the case of The People v. Ruggles, holds substantially the same doctrine. He says, that “ blasphemy, according to the most precise definitions, consists in maliciously reviling God or religion.” Again, he says, “ the free, equal, and undisturbed enjoyment of religious opinion, whatever it may be, and free and decent discussions on any religious subject, is granted and secured ; "but to revile, with malicious and blasphemous con
From these citations and references, I think, is clearly to be deduced the doctrine, that this crime does not consist in the discussion of any subject, in the propagation of any sentiments, or in the denial of any position, but in the wicked and injurious intent with which it is done. And, in my opinion, this intent must have reference to other men and consist in a malicious purpose to infringe their rights, to destroy their peace of mind, or to disturb the good order of society. I must, in candor, admit that none of these authorities come fully up to what seems to me to be the true definition of legal blasphemy I wish to superadd one ingredient, which, though not clearly excluded, yet does not seem to be distinctly included in either of them. Notwithstanding the remarks contained in several of the above citations, I cannot think that any state of mind or temper in reference to God or religion, goes to make up this legal offence. Anger towards God, indignity to him, to our Saviour, or the Holy Ghost, a disposition to scoff at religion, do not seem to me to be the subjects of human punishment. These sins may be committed when no one is present, and be. known to God alone ; and cannot be reached by a human tribunal. But if made known, they would not be the subject of punishment, because they inflicted no injury upon any human being, and so did not violate the rights of society. It is only the injury to civil society which can give civil government jurisdiction of them.
For a man’s private opinions, for his communion with his creator, for his devotional feelings and exercises, he is answerable to his God alone. When he engages in the discussion of any subject in the honest pursuit of truth, and endeavours to propagate any notions and opinions which be sincerely entertains, he is covered by the tegis of the constitution ; but when he wantonly or maliciously assails the rights and privileges of others, or disturbs the public peace, he is the proper subject of punishment.
Applying these doctrines to the statute under consideration, and construing it with reference to the constitution, I have come to the conclusion, that it was not intended to punish a
This protracted discussion has in some measure prepared us to dispose of the remaining questions, which arise upon the instructions to the jury. These instructions consisted in an explanation of the meaning of the defendant’s language, alleged to be blasphemous, and a legal position laid down in reference to it. The paragraph mainly, if hot exclusively, relied upon on the part of the government, both in the trial before the jury and in the argument before the Court, is in these words; “ Universalists believe in a god which I do not; but believe that their god, with all his moral attributes (aside from nature itself) is nothing more than a chimera of their own imagination,” &c. &c. I agree with my learned brethren, that the charge put the true construction upon this language. A declaration of a disbelief in the being of a God, whatever form of expression may be resorted to for the purpose of making it known, is a denial. The criticism of the defendant on his own language seems to me to be more ingenious and specious than sound. If this clause be ambiguous, yet a reference to other remarks in the same paper and especially to his professed creed, would clearly show that he intended to avow a disbelief in the existence of that intelligent, benevolent, eternal, allwise and almighty Being, whose government com prebends the universe, whose wise providence is over all his works, and who is designated in the statute by the word God.
Having fixed the construction of the paragraph, the presiding justice further “ instructed the jury, that the wilful denial of the existence of any God, would he a violation of the statute.''
Every person has a constitutional right to discuss the subject of a God, and to affirm or deny his existence. I cannot agree that a man may be punished for ivilfully doing what he has a legal right to do. Wilfully sometimes means inlen tionally, by design, with set purpose. In either of these senses it certainly imports no crime. How can it be known that the jury did not so understand it ? It would not be an unnatural construction. If so, their minds have not acted upon and they have not found one of the elements of the crime imputed to the defendant. Inasmuch as the construction of the paragraph was a subject of comment, and as it was relied upon as the principal evidence in support of the indictment, it is somewhat probable that the minds of the jurors were drawn to this view of the case. And I feel constrained to say, that if this paragraph were the only proof of the defendant’s guilt, it would be extremely difficult to support the indictment. I cannot perceive in this language any conclusive evidence of blasphemy.
Emlyn’s preface to the State Trials contains some sensible remarks so pertinent to this part of the case, and so applicable to the. whole subject, that I cannot forbear to insert them. He says, “ in the case of a blasphemous libel it is customary to insert the words falso et malitiose scrip sit, &c., and indeed they are the very gist of the indictment, and absolutely necessary to constitute the offence ; for as no words can be blasphemy (i. e. a reproachful reflection) on God or religion which are true, for truth can be no reflection on the God of truth ; so no opinion, however erroneous, can merit that denomination, unless uttered with a wicked, malicious design
But I do not rest my opinion upon any supposed misapprehension of the jury or any liability in the language of the charge to mislead. I think the instruction upon any admissible interpretation of the language, is incorrect in principle. The position laid down is, that a wilful denial of the existence of a God is blasphemy. This cannot be maintained without giving to the term toilful an unnatural and extraordinary import. It must have superadded to its usual signification, that of a word dissimilar and foreign from it, and made equivalent to wilful and blasphemous.
Wilful, in its worst sense, is' defined by the synonymes, obstinate, stubborn, without yielding to reason, inflexible, perverse. If either of these meanings be adopted, I cannot think that they will give to the denial the qualities necessary to constitute blasphemy. A voluntary denial does not amount to the offence. And it must be remembered, that in making the denial the defendant might be in the exercise of a legal right. And in my opinion, to exercise a right to assert or deny any thing obstinately, stubbornly, unreasonably, inflexibly or even perversely, will not necessarily convert it into a crime. To constitute a crime, there must be an infringement of the rights of others and a malicious purpose. To make wilful imply both a wrong and malice, is to give to it a force and effect beyond what it will bear or what can be maintained, either in ts common acceptation or its legal import.
It has been argued, that the charge adopted very nearly the words of the statute. This may be true, and yet a slight change of. phraseology, an insertion or omission of a single
On the whole, I am of opinion that the instruction to the jury is incorrect, that the defendant has been tried upon a mistaken view of the law, and for this cause is entitled to a new trial. This conviction rests very strongly upon my mind. And but for the respect which I have for the judgment of my learned brethren, I could entertain no doubt of it.
I have endeavoured to confine myself to the questions of law before us ; and to examine them upon their legal merits, uninfluenced by any opinions which I may entertain of the nature or tendency of the doctrines advocated by the defendant. I must not however be understood to express an opinion, that the whole matter contained in the paper referred to in the indictment, if properly laid before the jury, would not have supported their finding, or that there is any sufficient reason for setting aside the verdict, other than tvhat arises from the exception to the charge.
The motion in arrest of judgment, and the exceptions, are overruled, and judgment is to be entered on the verdict.
JVbfe. The defendant was sentenced to sixty days’ imprisonment in the common jail.