Posted by Eugene Volokh:
Interesting 1818 Blasphemy Case:
http://volokh.com/archives/archive_2009_05_31-2009_06_06.shtml#1243881670
I haven't seen it published anywhere, or cited in any articles or
books on blasphemy, so I thought I'd pass it along, since it seems to
be one of the few available early decisions on blasphemy. I should
note that I'm passing this along solely in case people are curious
about it, and in case it helps people in their research -- I'm not
trying to make any statement about what the law ought to be, or even
about the original meaning of the First Amendment or related state
constitutional provisions.
The report is from Law Intelligence, Franklin Gazette, p. 2, Nov. 17,
1818, but it's also reprinted in much the same form in a
contemporaneous newspaper article [1]that's available here:
Mr. Bache,
The following paragraph is extracted from the Democratic Press of
Saturday last --
�At a meeting of the friends of ROBERT C. MURRAY, held at the
Rialto Tavern, No. 130, South Sixth Street, November 13, it was
resolved that this meeting highly disaprove of the prosecution of
Robert C. Murray for the expression of opinions on the subject of
RELIGION, which were the opinions of Franklin and Jefferson, two of
the greatest and best men, that ever lived in any age or country --
and that we now adjourn to meet again at this place, on MONDAY
EVENING NEXT, at 7 o�clock, and that all enemies of Religious
Persecution be invited to attend at that meeting.
JOSEPH AILES, chairman.
�John Syng, secretary.�
There is in our code, an unrepealed Act of Assembly, of the year
1700, which punishes with a fine of ten pounds, for the use of the
poor, or an imprisonment at hard labour for three months,
whomsoever �shall willfully, premeditatedly, and despitefully,
blaspheme, or speak loosely and profanely of Almighty God, Christ
Jesus, the Holy Spirit or Scriptures of Truth.� 1 Smith�s State
Laws, page 6.
Under this act, Robert C. Murray was indicted at the last Mayor�s
Court, for Blasphemy. His counsel entered the plea of �Not Guilty�
on his behalf; and the case was, in the ordinary way, submitted to
a jury of his country.
The evidence for the prosecution was brief, distinct, and forcible.
Two witnesses swore that they had heard the defendant, at various
times and places, utter the following language -- �That Christ was
a bastard -- his mother a w---- and the bible a pack of lies.�
([2]Show the rest of the newspaper account of the case.)
In his defence, Robert C. Murray adduced some evidence of the general
goodness of his character; and his counsel argued upon the court and
the jury, that the law, under which the indictment had been framed was
unconstitutional -- that it was inconsistent with, and of course,
repealed by the constitution -- and cited the following sections to
support their position.
3d Section of Article 9. �That all men have a natural and indefeasible
right to worship Almighty
God according to the dictates of their own consciences: that no man
can of right be compelled to attend, erect or support any place of
worship, or to maintain any ministry against his consent; that no
human authority can, in any case whatever, control or interfere with
the rights of conscience; and that no preference shall ever be given,
by law, to any religious establishments or modes of worship.�
7th section. �The free communication of thoughts and opinions is one
of the invaluable rights of
man: and every citizen may freely speak, write, and print on any
subject, being responsible for the abuse of that liberty.�
1st paragraph of the Schedule. �That all laws of this Commonwealth, in
force at the time of making the said alterations and amendments in the
said constitution, and not inconsistent therewith, &c. shall continue
as if the said alterations and amendments had not been made.�
On the part of the Commonwealth, it was observed that the Mayor�s
Court of the City of Philadelphia would hardly venture to adjudge an
act of Assembly unconstitutional, which had been published under the
sanction of the Legislature, and otherwise recognized, since the
adoption of the constitution. That the law was not inconsistent with
the provisions in that instrument, to which reference had been made.
That a �wilful premeditated, and despiteful blasphemy,� such as was
charged in the Indictment and proved by the evidience, could not be
considered as �the worship of Almighty God according to the dictates
of conscience� nor could it be deemed �a right of conscience� -- nor
such a free communication of thoughts and opinions� as is justly
termed �of the invaluable rights of man.� Neither the language nor the
spirit of the Constitution could be construed to sanction a
licentious, unnecessary, intrusive, and obscene course of profanity,
shocking to every upright mind, and which, abstracted from all
religious belief, could be uttered no where without exciting
sensations of pain, and of extreme repugnance.
The Court, in charging the Jury, merely remarked that as to the law no
doubt could be entertained. They were not going to declare any act of
Assembly unconstitutional; and if the Defendant thought he could
satisfy a higher tribunal that the offence with which he is charged is
not indictable in this State, a writ of error would doubtless be
granted for the purpose. It was certainly the right of every citizen
to entertain what religious opinions he preferred; and, if he felt
inclined, to utter them, in a proper manner, without restraint; -- but
while one man exercises his rights, let him not offend against the
rights of others -- let him not intrude indecently and shockingly upon
the sacred belief, and scruples of those who think differently from
him. The expression of a mere speculative opinion, in argument or in
decent language, is no where censurable. -- but if the Jury think the
defendant uttered the expressions which have been given in evidence,
wantonly and maliciously, without cause and without provocation, they
ought to convict him.
The Jury without retiring from the box, gave in a verdict of �Guilty.�
Motions for a new trial, and in arrest of Judgment, were then made by
the Defendant�s Counsel, which, after argument, were severally
dismissed by the Court, and on the following Monday, the Recorder
pronounced the subjoined.
SENTENCE
You have been convicted of the odious crime of blasphemy, an offence
which, to your shame, and the honor of society, is as seldom heard of,
as the depravity which excites to it, is hopeless and disgusting. Of
the various crimes which, as guardians of the public morals, it is our
duty to punish, there are few which circumstances will not in some
degree extenuate. The illegal possession of another�s property, may be
often traced to the pressure of want, whether resulting from
misfortune or from unsuccessful crime, and the catalogue of offences
from assault to murder, is generally supplied by the operation of real
or imaginary wrongs, which animate the victim to hasty and criminal
revenge. But for the blasphemer there is no apology. The nature of his
transgression forbids the expectation of profitable fame, and of
contemporary relief from penury or despair, and instead of being
justified by motives of retribution for injuries, he lifts his feeble
arm against the author of his being, who pities his infirmities, and
extends to him the hand of reconciliation. The blasphemer�s aim is
mental desolation; he seeks no other recompense than the infliction of
despair, and to the honour of a christian people, is rarely listened
to but with horror and disgust.
It were painful even if it were desirable, to repeat the language in
which you have dared to blaspheme the SAVIOUR OF THE WORLD. It has
been attempted to defend you by an appeal to those invaluable rights
of freedom of speech, and universal toleration, which, in all matters
of religion and conscience, are secured by the constitution. It is
said the constitution of this commonwealth contains an implied repeal
of the statute on which this prosecution is founded. But obvious
indeed, must be the course of implication, to determine the repeal or
unconstitutionality of a statute so salutary and necessary, before
this court would think themselves justified to abolish a restraint
which is to be found in the code of every christian people. For us it
is sufficient that the law in question has not only never been
repealed, but has actually been recognized as still in force, by a
recent publication of the acts of assembly, under the authority of the
legislature. In cases like the present, therefore, it is the duty of
the court to rely upon the positive provission on the law, and to
leave to the supreme tribunal of the state, the resolution of those
doubts which have been raised in this case. To that tribunal let our
decission be submitted,
To us the terms of the constitution do not appear inconsistent with
the provisions of the act of Assembly, Every man possesses an
undoubted right to entertain and express his peculiar opinion on the
subject of religion, so far as he exercises it without an interference
with the religious privileges which the constitution equally secures
to his neighbour. The liberty of speech, in matters of this kind, is
analogous to the liberty of the press, which guarantees to every
citizen �the right to speak, write, and print on any subject, being
responsible for the abuse of that liberty.�
The application of the law, appears to us, to leave you without a
single circumstance to excuse or extenuate your indecency, insolence
and crime. -- So far from having emp0loyed the impious and obscene
language recited in the indictment, in the heat of argument, or when
provoked by opposition, you have obtruded on those, to whom it was
peculiarly offensive, and whose happy confidence in the Christian
faith, it was your object to destroy. Nor have you confined your
malicious activity to the sphere of private conversation. Citizens
have been insulted with your profanity and indecency, in the public
streets; and, to complete your insolence, you have accosted them with
scoffing on their way to public worship. -- It is time you should know
that you cannot with impunity sport with the feelings and happiness of
your fellow citizens; common decorum and good manners, as well as law
and religion, forbid it. You must be taught that respect even to the
prejudices of others, on so important a topic as that of religion, is
due to the humblest individual in society. Can it be otherwise than
criminal, maliciously to destroy the happiness of another, by
depriving him of his confidence in revealed religion, and rendering
him a prey to doubt and despair? The least malicious injury to the
person or property of another is an object of punishment, and it is to
accuse our code of the grossest inconsistency, to suppose it less
regardless of mental rights, the most indispensable to human
happiness.
On a subject of so great importance, and on which you appear hitherto
to have been so ignorant and thoughtless we advise you to seek
information. -- It cannot fail to impress on your mind a conviction of
your errors and your danger, and to induce you to abandon those
shocking sentiments, which, whether seriously entertained, or
thoughtlessly sported, will, without atonement, terminate in
interminable ruin.
Your age and infirmities render you an object of compassion. -- It is
time you had reflected on the wickedness of the past, and contemplated
the awful certainty of the future, for the day is not far distant,
when, without repentance, you will be compelled to acknowledge, under
the tortures of a guilty conscience, the truth and power of revealed
religion.
The offence of which you have been convicted is too disgusting to be
dangerous as an example. -- The Court would nevertheless be justified
in imposing upon you the imprisonment at hard labour, authorized by
the law; but that punishment, although it would afford you an
opportunity for reflection, would deprive you of the means of
information, of which we sincerely and earnestly entreat you to avail
yourself.
The judgment of the Court is that you pay the sum of 10l. for the use
of the poor, being the full amount of the penalty, which the law
authorizes, with the costs of prosecution.
([3]Hide most of the above.)
References
1.
http://www.msa.md.gov/megafile/msa/speccol/sc4800/sc4872/001288/pdf/m1288-0415.pdf
2. file://localhost/var/www/powerblogs/volokh/posts/1243881670.html
3. file://localhost/var/www/powerblogs/volokh/posts/1243881670.html
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