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CONSTITUTIONAL  FREE  SPEECH 

DEHNED  AND  DEFENDED 

\ 

^i 

IN    AN    UNFINISHED    ARGUMENT   IN   A  1 

1 

CASE  OF   BLASPHEMY  \ 


'?^ 


Theodore  Schroeder 

OF  THE  N.  Y.  BAR 
14  W.  12  ST. 


FREE  SPEECH  LEAGUE 

56  EAST  59TH  STREET 

NEW  YORK  CITY 

1919 


r 

V 


^ 


\ 


PI 


Explanatory  Introduction. 

By  some  the  character  of  the  following  argument  may  be  considered 
uncommon.  The  unusual  content  is  due  to  two  circumstances.  The  first 
of  these  is  the  belief  that  our  courts  are  too  strongly  predisposed  to  follow 
the  letter  of  precedent,  even  though  none  of  these  precedents  came  into 
being  under  modern  conditions.  This  fact  created  a  very  strong  neces- 
sity and  urge  toward  impairing  the  influence  of  such  authorities  as  could 
serve  to  justify  a  desire  to  uphold  blasphemy  statutes.  The  second  spurce 
of  novelty  is  in  the  viewpomts,  which  are  predominantly  historical  and 
psychological.  As  to  these  latter  something  in  further  explanation  will 
be  helpful. 

There  never  has  been  a  case  involving  freedom  of  speech  in  which 
the  historical  interpretation  of  our  constitutional  guarantees  has  received 
serious  consideration.  I  desired  to  make  such  a  presentation,  and  the 
task  became  enormous.  The  historic  issues  of  free  speech  upon  the  sub- 
ject of  religion,  present  the  controversy  which  finally  resulted  in  our  con- 
stitutional guarantees.  These  issues  were  made  in  England  by  means  oi 
long-forgotten  sermons,  only  a  small  part  of  which  are  preserved  in  rare 
and  obscure  books  and  pamphlets.  Even  these  inadequate  records  are 
not  accessible  except  to  a  very  few  American  readers,  and  then  only  by 
great  effort.  Many  important  libraries  were  carefully  searched.  Some 
very  rare  pamphlets  had  to  be  photographed  in  the  Library  of  the  British 
Museum  and  elsewhere  in  order  to  make  their  contents  available  for  this 
discussion:  Under  such  circumstances  it  was  obviously  useless  to  state 
their  substance  and  cite  the  books  wherein  this  could  be  verified.  Such 
considerations  seemed  to  necessitate  the  exact  reproduction  of  large 
masses  of  material,  so  that  every  one  can  easily  check  up  the  interpretation 
that  I  put  upon  it.  This  requirement  also  resulted  in  making  the  quo- 
tations of  considerable  length,  so  that  a  fair  impression  could  be  ob- 
tained of  the  import  of  the  more  salient  passages.  Thus  has  been  pro- 
duced what  is  almost  a  small  cyclopedia  of  source-material  on  this  question. 

The  psychologic  approach  to  social  problems  is  lately  being  impressed 
upon  all  the  social  sciences.  It  belongs  inevitably  to  intellectual  evolu- 
tion that  legal  problems,  like  all  other  social  phenomena,  will  yield  new 
meanings  when  we  view  them  as  expressions  of  human  desires  becoming 
effective  through  thinking  expressed  in  laws,  political  institutions,  etc. 

From  the  viewpoint  of  a  deterministic  and  evolutionary  psychology 
every  human  action,  including  judicial  decisions,  is  conditioned  upon  the 
past  experiences  and  the  present  development  of  individual  desires  and 
of  mental  processes.  So  then,  at  some  level  of  understanding,  "reasons" 
can  be  found  to  justify  any  desire  that  is  dominant.  Reasons  alone  never 
determine  judicial  or  human  action.  On  the  contrary,  judicial  and  human 
predispositions  (desires)  quite  as  certainly  determine  the  choice  of  "rea- 
sons" and  the  relative  weight  to  be  given  them,  as  well  as  the  use  to 
which  they  will  be  put  in  formulating  judicial  action.  That  our  past  is 
ever  at  work  in  the  present  is  an  established  psychologic  truth.  If  its 
operation  is  by  subconscious  processes,  then  even  our  judges  may  be 
tempted  to  deny  its  existence.  For  the  genetic  psychologist  such  denial 
is  to  be  often  expected  and  proves  only  that  those  who  make  it  do  not 
possess  the  psychologic  intelligence  necessary  for  an  adequate  self-under- 
standing. Many  parts  of  the  following  discussion  are  very  consciously 
formulated  with  the  desire  to  impress  this  psychologic  viewpoint  into 
the  service  of  juridicial  evolution. 

Furthermore,  in  some  respects,  this  presentation  is  less  partisan  than 
is  usual  in  legal  arguments.  Many  times  materials  and  authorities  have 
been  presented  which  can  be  used  against  the  main  contention  of  this  book. 


388380 


Nothing  has  been  concealed  or  omitted  merely  because  of  its  adverse  I 
tendency.  All  opposing  theories  and  authorities  have  been  frankly  and! 
exhaustively  criticized.  All  unpopular  implications  have  been  fully  ac- ' 
cepted.  The  effort  has  been  to  enlarge  the  understanding  and  to  be  un-i 
derstood.  These  desires  have  extended  even  to  the  mental  processes  which  j 
are  involved  in  the  judicial  consideration  of  such  problems.  j 

Those  who  look  merely  for  a  conventional  legal  argument  will  be  J 
as  much  disappointed  as  those  who  expect  an  entertaining  agitator's  pas-  i 
sionate  appeal.  The  ensuing  discussion  is  as  far  from  each  of  these  types  \ 
as  possible.  Perhaps  now  I  have  almost  said  that  this  argument  is  in  a' 
class  by  itself,  both  as  to  the  material  woven  into  the  discussion,  and  the  j 
viewpoints  that  dominated  their  choice  and  use.  Perhaps  even  the  mental  • 
processes  employed  will  seem  a  bit  out  of  the  ordinary.  All  this  means  ; 
that  the  following  pages  will  interest  only  those  who  are  dominated  by  \ 
the  same  purpose  that  inspired  and  determined  the  character  of  the  book.  " 
Then  only  those  will  care  to  read  who  are  very  much  in  earnest  in  their  j 
desire  to  understand  the  past  and  present  human  forces  involved  in  out  \ 
human  attitudes  toward  freedom  of  speech.  '• 

Consequently,  this  is  perhaps  more  than  a  lawyer's  argument.  There  i 
is  presented  much  of  the  psychology  and  philosophy  of  the  law,  and  more  | 
or  less  of  discussion  as  to  the  intellectual  methods  involved  in  the  forma-  ■ 
tion  of  legal  opinions.  Perhaps  for  most  minds  this  will  seem  irrelevant  j 
and  remote.  Those  who  are  best  informed  about  the  factors  involved  in  j 
the  intellectual  evolution  of  the  race  will  perhaps  be  most  pleased  to  find  j 
here  a  discussion  of  intellectual  method  and  of  the  psychologic  and  philo-  ' 
sophic  aspects  of  juridical  action.  Here  as  everywhere,  whatever  of  in- j 
terest  the  reader  sees  in  the  following  pages  will  depend  largely  upon  what  ■■ 
kind  of  eyes  and  of  intellect  he  brings  to  the  task  of  reading.  Of  course,  j 
the  material  was  prepared  for  a  wider  audience  than  that  which  is  found  ; 
in  the  court  room.  I  expect  sometime  to  complete  this  argument.  If  the  i 
conditions  require  it,  I  will  add  a  review  of  any  adverse  judicial  action  ; 
thereon  and  publish  the  whole  in  a  new  edition  of  this  book.  The  pressure  i 
of  a  time  limit  for  the  preparation  of  this  discussion  is  my  excuse  for  ] 
many  literary  defects.  Theodore  Schroeder.         \ 


10 


CONTENTS. 


I.  STATEMENT  OF  THE  CASE.  History  of  the  case.  Statute  and 
constitutional  problems  involved.  Brief  general  outline  of 
argument    18-18 

n.     IMPORTANCE  OP  THE  CONTROVERSY.     Precedent  make*  for 

recurrence  of  persecution.  Defendant  unimportant.  Priestley  on 
Importance   of   authority   to   suppress 19-28 

ni.  REASON  AND  PRECEDENT.  Conflict  of  precedent  and  legal 
principles.  The  reason  of  the  law  invoked.  Evolution  of  Justice 
through    better    precedents 24-29 

rV,     CONSTITUTIONAL       CONSTRUCTION       AND       INTELLECTUAL    A 
/IdETHODS.       When    and    why     precedents    are     valuable.      Somev^  ' 
■'established    rules    of    constitutional    construction.      .Rules    do    not 
/decide    cases,    but    human    desires    determine    the   choice    of    rules 
and    use   made    of    them.      Importance    of   scientific    metliod   as  ~tt 
check    upon    predispositions.      Mature    and    immature    intellectual 
methods,    determine   quality   of   decisions.      Danger   from   religious    Z' 
feelings    overcome    through    more    synthetic    view.      Previous    his-v' 
toric    trend    essential    to    understanding    Bills    of    Rights    aa    part 
of    evolution.      Reading    into    and    out   of    constitution.      Detecting 
mere    plausible    pretences 80-45 

V.  RUGGLES  DECISION  CRITICISED.  Justice  Kent's  prejudicial 
error  uncovered.  Historical  development  which  he  ignored,  lead- 
ing from  toleVation  as  a  privilege  up  to  intellectual  liberty  .  • 
as  constitutional  right.  Actual  vs.  constructive  injury.  Zengers' 
seditious  libel.  Constitutional  provisions  overlooked  by  Kent. 
His    emotional    disabilities 46-59 

VL     RUGGLES    CASE    OVERRULED.      Decision   of    Judge    Parker   of 

Kentucky  In  the  Case  of  Peop.   v.  Moore 60-71 

VII.  KNEELAND  DECISION  CRITICISED.  Blackstone  erroneously 
followed.  Historic  facts  and  synthetic  method  ignored  by  Jus- 
tice Shaw.  Facts  misstated.  Colonial  development  toward  re- 
ligious liberty  and  evils  of  persecution  Ignored.  Shaw's  medieval 
conception    of    liberty 72-88 

Vm.;   BLACKSTONE    NO    AUTHORITY    ON    FREE    SPEECH.       Black- 
stone   an    expositor   not   a  philosopher;    also   anti-republican.      His 
undemocratic    tendencies    criticised    by    Bentham,     Austin,     Rice,       .* 
Sears    and    contradicted    by    U.    S.    Sup.    Ct.      Endorsing    tyranny    / 
in    terms    of    perfect    liberty.      His    definition    of    free    speech    re-.-' 
versed     by     constitutions 89-100 

IX.  BLACKSTONE' S  CRITICS.  His  defense  of  censorship  criticized; 
Supported  by  L' Estrange,  Contra;  Salust,  Moral  danger  of  heresy. 
Furneaux  criticizes  Bl.  Also:  Benthan,  Fownes,  an  anonymous 
critic,    Wortman    and    Priestly 101-121 

X.  U.  S.  A.  versus  BLACKSTONE.  A  criticism  of  Blackstone  on  free- 
dom of  the  press,  written  by  Judge  St.  George  Tucker  and  ap- 
pended to  the  1803  American  edition  of  Blackstone's  commen- 
taries  122-150 

XI.     ACADEMIC  DISCUSSION  OF  THE  MEANING  OF  FREE  SPEECH.  \ 

Liberty  and  licensing  the  printer. — Licensing  the  book. — Free 
printing  and  restrained  publication. — From  prior  to  ex  post  facto 
censorship. — Taxes  on  knowledge. — Jury  as  judges  of  law. — Truth 
and    criminality. — Resume    of    definitions 151-164 

XIL  ORIGIN.  MEANING  AND  SCOPE  OF  BLASPHEMY.  Plato  on 
blasphemy.  The  canon-law  on  blasphemy.  Rev.  John  Disney  on 
blasphemy  (1729).  Blackstone  on  offenses  against  religion, 
eighteenth    Century    Magistrate's    instructions 165-177 

XUL  PROSECUTIONS  FOR  CRIMES  AGAINST  RELIGION.  1600-1637. 
Opening  of  17th  century,  Atwood's  case,  1605,  Bartholomew 
Legate,  1612.  Edward  Wlghtman,  1612.  John  Ogelvie,  1615. 
Thomas  Delghton  and  John  Holt,  1616.  Richard  Mocket,  1617. 
Traske's  Case,  1618.  Reginald  Scot,  before  1625.  David  Pare, 
1622.  Richard  Mountagu,  1626.  Alexander  Leighton,  1630. 
William   Prynne^    1633.      John    Hayden,    1634 178-211 

11 


XIV.      PROSECUTIONS    FOR   CRIMES   AGAINST   RELIGION,    1637-1642.  ;■ 
Henry    Burton,    1637.      Thomas  Wilson,    1637.      John    Pocklington, 

1640.      Nathaniel    Barnard,    1640.      Conn.    Statute    on    blasphemy,  '^ 

1642 212-256  . 

XV.     PROSECUTIONS  FOR  CRIMES  AGAINST  RELIGION.      1643-1677.  -j 

Paul    Best,     1643.      Hanserd    Knolles,     1644.       King    James,    1644.  I 

John    Archer    1645.      John    Biddle,     1647-8.       Laurance    Clarkson,  I 

1645-1650,     William  Erbery,  1646.     Rev.  Eblezer  Coppe,  1650.  John  ''. 

Frey,    1650.      Robert    Norwood,    1651.      Racovian    Catechism,    1652.  • 

James    Naylor,     1656.       Benjamin    Keach,     1664.       Taylor's    Case,  1 

1675.      Lodowick   Muggleton,    1653-1676 257-294 

XVI.     PROSECUTIONS  FOR  CRIMES   AGAINST  RELIGION.      1678-1706.  •■■ 

One    of   the    Society   of   Love,    1678.      John    Morgan,    1679.      Henry  ; 

Carr,   1680.     Thomas  Delaune  and  Ralphson,   168,3.     Richard   Bax-  i 

ter.  1684,  Arthur  Bury,  1690.  Charles  Blaunt,  1693.  Thomas  Aiken-  \ 

head,     1695.       Patrick     Kinnymount,     1697.       Rev.     John     Toland,  j 

1697.     Susannah  Fowler,  1698.  Daniel  Defoe,  1703.     James  Drake,  j 

1705.      John   Asgill,    1707 295-322  j 

XVIL     PROSECUTIONS      FOR    CRIMES     AGAINST    RELIGION.        1707-  i 

1818.     Read's  Case,   1707.     John  Clendon,    1709,     John  Humphries,  ., 

1709.      Hall's    Case,    1709.      Mathew    Tindal,    1700.      Joseph    Hall,  ) 

1720.      Dr.    Mead,    1723.      Bernard    Maudeville,    1723-28.      Edward  -j 
Elwell,      1736.      Woolston's    Case,      1729,       Thomas     Ashley,    1746, 

Jacob   Hive,    1756,      James    Dixwell   &   Edward    Cabe,   1763,      Peter  t 

Annett,    1763.      John    Wilkes,    1764,      Chamberlain    of    London    v.  | 

Evans,    1767.      Williams'    Case,    1797.      Daniel    Isaac    Eaton,    1812.  .; 

George    Houston,   1813.      John    Wright,    1817 323-849  ! 


XVIII.  REVIEW  OF  BLASPHEMY  PROSECUTIONS.  Case  Lawyers 
method.  The  jurists  method.  Criteria  of  blasphemy.  Canon 
law    and    common-law.      Review    of    adjudicated    cases.      Divine 

^              right    rule    and    blasphemy.      Assuming    divine    attributes.      Bias-  : 

phemy  to  deny  any  part  of  Christianity,     Crime  to  deny  Trinity.  1 

Various  denials  of  orthodoxy.     Delusions  of  grandeur.      Tolerance  T, 

is    blasphemy.      Advocates    of    toleration    punished.      Constitution  ;i 

overrules    precedent.      Witchcraft    and    common-law.      Bible    and  ] 

witchcraft.       Blasphemy    to    deny    witchcraft 350-873  j 

PSYCHOLOGY,    DEMOCRACY   AND  FREE  SPEECH.     Static   con-  | 

cept   of    law.      Evolutionary    concept   of   law.      Toward   democracy  j 

and     free    speech.       Freedom,      mathematics    and      anti-privilege.  i 

Aristocrats   by   feeling.     Unity   of   slave  and  master.      Immaturity  ^ 

of  aristocracy.    Standard   of  dangerous  tendency.     Test  of  experi-  " 
ence.      Popular  ideas  shall   not   be   privileged.      The   undem^ocratic 

predisposition.      Immature    intellectual    method.      Feeling    of    In-  . 

f erlority.      Delusions    of    grandeur 374-.390 

XX.      OVERT    ACT    AND    ACTUAL    INJURY    versus    EVIL    PSYCHO-  j 

LOGIC   TENDENCY.      The   issue    stated.      Beginning   of   the    con-  1 

troversy.      St.    Hillary,    A.    D.    335.      Theodosian    Code,    A.    D.    438.  ■«.: 

Martin    Luther,    1535.      M.    S.,    1644.      John    Milton,    1644,    Jeremy  | 
Taylor,    1647.      Edward    Bagshaw,    1660.      Declaration    of    Breda, 
1660.      John    Owen,    1667.      John    Locke,    1667.      Thomas    Delaune, 

1683.      Hubert    Languet,    1579,    1689.      Edward   Hitchin,    1710    (and  1 

Joshua    Toulmin,     1765).      John    Hoadley,    1718,      John    Wickliffe,  • 
1729.        Charles    Montesquieu,      1748.       Rev.      John     Jones,      1749. 

Anthony   Ellys,    1763.      "Letters   concerning   libels,"    1764.      Robert  ; 

Morris,   1770,      Rev,   Philip   Furneaux,    1770.      Rev.    Andrew  Kippis,  j 

1772.  "Two    Letters,"    Anonymous,    1773.      Rev.    Joseph    Fownes, 

1773.  Jeremy  Bentham,  1776.     Richard  Price,  1777,     James  Adair, 

1785.        An    anonymous    critic,      1791.       Rev.    Robert    Hall,     1793.  ,^ 

Christopher     Martin      Wieland,      1795.        Tunis     Wortman,      1800.  ; 

Philagatharches,    1810 391-427  ;i 

•^XXI.     ROGER  WILLIAMS,   JAMES  MADISON  AND  THOMAS  JEFFER-  \ 
SON.      Roger  Williams  and  secularism.      Conflict  between    "Truth 

and    Peace,"      Blasphemy    prosecutions    are    breach    of    the  peace.  \ 

Actual    versus    constructive    disturbance.      Madison    and    Virginia  i 

liberty.      Jefferson    and    toleration - 428-439  j 

XXn.     CHRISTIANITY    AND     THE     LAW.       Church    and    state.       Three  ] 

stages    of    evolution.      Reason    v.    Authority.     iJefferson    v.    Hale.  j 

Treaty    with    Tripoli.      Ohio    Supreme    Court. . . ; , 440-450 


12 


S^Utt  of  (HmntttxtvA 

District  Court  of  Waterburi:. 


State    of    Connecticut 
against 
Michael  X.  Mockus 


ARGUMENT   ON   BEHALF   OF   THE   ACCUSED    IN 
SUPPORT  OF  A  DEMURRER  TO  THE  INFORMA- 
TION CHARGING  HIM  WITH  THE 
CRIME  OF  BLASPHEMY. 

History  of  the  Case. 

The  Defendant,  Michael  X.  Mockus,  is  a  Free  Thought 
lecturer  of  Detroit,  Michigan.  He  came  to  Waterbury, 
Conn.,  pursuant  to  an  engagement  to  deliver  a  series  of 
lectures  in  the  Lithuanian  language  to  an  incorporated 
Lithuanian  Free  Thought  Association.  In  his  third  lec- 
ture some  phrases  were  used  which,  dissociated  from  their 
context,  are  alleged  to  be  blasphemous,  under  a  statute 
passed  in  1642.  He  was  arrested,  tried  in  the  City  Court 
of  Waterbury,  and  found  guilty.  A  penalty  of  ten  days 
in  jail  was  inflicted.  An  appeal  was  taken  to  the  District 
Court.  There  a  trial  resulted  in  a  disagreement  of  the 
jury.  A  re-trial  was  set  for  December  6,  1916.  At  that 
time  permission  was  given  to  re-argue  a  demurrer.  At 
the  conclusion  of  a  lengthy  argument,  by  general  consent, 
farther  proceedings  in  the  case  were  continued  for  the 
term,  during  which  time  the  argument  in  support  of  the 
<ienmrrer  was  to  be  extended  in  writing,  and  submitted  to 
the  Court.  The  following  pages  present  the  oral  argu- 
ment, corrected  and  revised. 

13 


I-  \ 

STATEMENT  OF  THE  CASE. 

The  Defendant  is  charged  in  the  language  of  the  Con-  \ 

nectieut  statute  with  having  blasphemed  against  God,  the  ; 

Christian  religion  and  the  Holy  Scriptures.    The  demurrer  \ 

is  general,  and  raises  the  question  of  the  sufficiency  of  \ 

the  complaint  to  state  facts  constituting  a  crime.    Under  \ 

this  head  the  contention  which  is  of  most  general  and  of  .  \ 

the  greatest  importance  is  that  the  Connecticut  statute  j 

against  blasphemy  is  unconstitutional  under  several  pro-  ] 

visions  of  both  State  and  National  constitutions.  i 

Statutes  Involved.  ] 

Sec.   1323,  General  Statutes  of  Connecticut:     "Every  \ 

person  who  shall  blaspheme  against  God,  either  of  the  \ 

persons  of  the  Holy  Trinity,  the  Christian  religion,  or  the  ] 

Holy  Scriptures,  shall  be  fined  not  more  than  one  hundred  i 

dollars,  and  imprisoned  in  a  jail  not  more  than  one  year,  ■ 

and  may  also  be  bound  to  his  good  behavior." — A.  D.  1642-  ' 

1821,  Rev.  1888,  Sec.  1535.  [ 

\ 

Connecticut  Constitution^  Declaration  of  Rights^  1818.  | 

•1 

Sec.  1.     "That  all  men  when  they  form  a  social  compact,  I 

are  equal  in  rights;  and  that  no  man  or  set  of  men  are  ,< 

entitled  to  exclusive  public  emoluments  or  privileges  from  i 

the  community."  ' 

Sec.  3.     "The  exercise  and  enjoyment  of  religious  pro-  \ 

fession  and  worship  without  discrimination,  shall  forever  ■ 

be  free  to  all  persons  in  this  state,  provided  that  the  right  \ 

hereby  declared  and  established,  shall  not  be  so  construed  ; 

as  to  excuse  acts  of  licentiousness,  or  to  justify  practices  ■ 

inconsistent  with  the  peace  and  safety  of  the  state."  « 

Sec.  4.     "No  preference  shall  be  given  by  law  to  any  j 

Christian  sect  or  mode  of  worship."  \ 

Sec.  5.     "Every  citizen  may  freely  speak,  write  and  pub-  i 

lish  his  sentiments  on  all  subjects,  being  responsible  for  j 

the  abuse  of  that  liberty."  ] 

i 

14  i 


STATEMENT  OF  THE  CASE.  15 

Sec.  6.  "No  law  shall  ever  be  passed  to  curtail  or  re- 
strain the  liberty  of  speech  or  of  the  press." 

Sec.  9.  "In  all  criminal  prosecutions  the  accused  shall 
have  the  right  *  *  *  to  demand  the  nature  and  cause  of 
the  accusation;  *  *  *  He  shall  not  *  *  *  be  deprived 
of  life,  liberty  or  property  but  by  due  course  of  law." 

Sec.  12.  "All  courts  shall  be  open,  and  every  person, 
for  an  injury  done  to  him  in  his  person,  property,  or  repu- 
tation, shall  have  remedy  by  due  course  of  law  and  right 
and  justice,  administered  without  sale,  denial  or  delay." 

Sec.  16.  "The  citizens  have  a  right,  in  a  peaceable  man- 
ner, to  assemble  for  their  common  good,  and  to  apply  to 
those  invested  with  the  powders  of  government,  for  redress 
of  grievances  or  other  proper  purposes,  by  petition, 
address  or  remonstrance." 

U.  S.  Constitution. 

Amend.  Art.  1.  "Congress  shall  make  no  law  respecting 
an  establishment  of  religion,  or  prohibiting  the  free  exer- 
cise thereof;  or  abridging  the  freedom  of  speech,  or  of  the 
press;  or  the  right  of  the  people  peaceably  to  assemble, 
and  to  petition  the  government  for  a  redress  of  grievances." 

Article  5.  *  *  *  "Nor  shall  any  person  *  *  *  be 
deprived  of  life,  liberty  or  proi>erty,  without  du^  process 
of  law."     *    *    * 

Article  6.  *  *  *  "In  all  criminal  prosecutions,  the 
accused  shall  enjoy  the  right  *  *  *  to  be  informed  of 
the  nature  and  cause  of  the  accusation." 

Article  14.  ♦  *  *  "No  state  shall  make  or  enforce  any 
law  which  shall  abridge  the  privileges  or  immunities  of 
citizens  of  the  United  States,  nor  shall  any  State  deprive 
any  person  of  life,  liberty  or  property,  without  due  process 
of  law,  nor  deny  to  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws." 

The  constitutional  problems  arrange  themselves  quite 
naturally  into  three  groups: 

The  first  group  arises  from  the  abridgment  of  freedom 


16  BLASPHEMY. 


of  speech  and  religious  liberty,  thus  violating  several  con- 
stitutional provisions. 

The  second  group  arises  from  the  inequalities  created 
by  this  law,  and  makes  it  a  violation  of  "due  process  of 
law/'  and  other  guarantees  of  equal  liberty,  under  both 
State  and  Federal  Constitutions. 

The  third  group  arises  from  the  uncertainty  of  the 
criteria  of  guilt  under  the  blasphemy  statute,  which  makes 
it  a  violation  of  the  right  to  "due  process  of  law''  and  of 
the  right  to  know  the  nature  of  the  accusation  against  the 
accused,  under  both  State  and  Federal  Constitutions. 

General  Suggestions. 

There  can  be  no  religious  liberty,  in  the  sense  of  a  com- 
plete separation  of  church  and  state,  which  does  not  in- 
clude freedom  of  speech  for  religious  subjects.  Likewise, 
there  cannot  be  general  freedom  of  speech  without  includ- 
ing the  whole  of  religious  mental  freedom.  Of  course, 
religious  freedom  includes  more  than  religious  free  speech 
as,  for  example,  exemption  from  taxation  for  religious 
purposes.  Likewise,  free  speech  includes  intellectual  lib- 
erty upon  other  subjects  besides  religion.  However,  so 
far  as  the  blasphemy  statutes  are  concerned,  it  makes  no 
difference  whether,  considered  under  one  or  the  other  of 
these  coYistitutional  provisions,  the  line  of  demarcation 
between  liberty  and  its  unconstitutiohal  abridgment  is  the 
same.  This  aspect  of  the  question  will  be  presented  from 
the  viewpoint  that,  so  far  as  concerns  the  blasphemy 
statute,  three  different  constitutional  phrases  are  but  dif- 
ferent ways  of  expressing  the  same  idea,  and  accomplisU- 
ing  the  same  end. 

It  is,  of  course,  known  that  judicial  decisions  sanction 
the  view  that  the  earlier  amendments  to  the  Federal  Con- 
stitution are  limitations  only  upon  the  powers  of  the  Fed- 
eral Government  and  not  limitations  upon  State  action. 
This  conclusion  undoubtedly  presents  the  whole  truth, 
under  the  conditions  existing  prior  to  the  adoption  of  the 
fourteenth  amendment.  Even  after  that  amendment,  if 
we  consider  the  prior  amendments  as  dissociated  from  it, 


STATEMENT  OF  THE  CASE.  17 

the  same  result  will  be  asserted.  A  different  situation  is 
presented  if  we  undertake  a  synthetic  construction  of  the 
first  and  fourteenth  amendments. 

Then  we  are  compelled  to  ask  ourselves:  what  "lib- 
erties" and  "equal  protection  of  the  laws"  are  the  states 
prohibited  from  invading  by  the  fourteenth  amendment. 
Obviously  one  cannot  determine  what  is  that  equal  re- 
ligious and  intellectual  freedom,  guaranteed  by  the  four- 
teenth amendment  of  the  Federal  Constitution,  without 
at  the  same  time  construing  the  first  amendment.  In 
other  words  the  fourteenth  amendment  protects  against 
State  infringement  all  that  "liberty"  which  was  of  suffi- 
cient importance  to  have  been  previously  protected  against 
congressional  encroachments.  Upon  such  reasoning  it 
will  be  claimed  that  the  Federal  amendments  are  a  limi- 
tation upon  State  powers.  Thus  the  "liberty"  which  by 
the  fourteenth  amendment  is  protected  against  State  ac- 
tion, necessarily  includes  all  those  liberties  theretofore 
inadequately  protected,  and  now  more  fully  protected  even 
against  State  action.  This  is  accomplished  by  at  least  a 
limited  incorporation  of  the  liberties  of  the  first  amend- 
ment within  the  "liberty"  of  tlie  fourteenth  amendmen-. 
It  is  believed  that  this  point  has  never  yet  been  decided 
by  any  court.  In  consequence  of  this  it  is  now  claimed 
that  the  Connecticut  blasphemy  statute  violatp>^  also  the 
first  and  sixth  amendments  as  well  as  the  fourteenth 
amendment  to  the  Federal  Constitution. 

Hereinafter  it  will  be  also  contended  that  the  consti 
tutional  guarantees  for  equality,  for  religious  liberty,  and 
for  freedom  of  speech  were  not  limited  in  their  operation 
to  those  who  possess  any  particular  degree  of  culture,  or 
a  polite  and  approved  vocabulary,  or  an  alluring  oratorical 
and  literary  style,  or  for  the  protection  of  persons  cy- 
pressing  only  "safe  and  sane"  popular  opinions.  On  the 
contrary,  it  will  be  asserted  that  these  constitutional  lib 
erties  were  designed  to  limit  the  powers  of  government 
and  to  protect  human  rights,  not  merely  the  rights  of  those 
possessed  of  a  clever  technique  for  insinuating  heresy  or 
agnosticism  with  a  minimum  of  offence.  Equality,  relig 
ious  liberty,  and  free  speech  being  human  rights,  in  the 


i 
18  ^lASPHBMY.  \ 


most  fundamental  sense  of  a  democracy,  the  defendant 
and  every  one  else,  discussing  religious  subjects,  must  be 
allowed  to  express  themselves  with  impunity  in  such 
vocabulary  as  they  possess,  within  the  limits  of  doing 
actual  and  material  injui'y.  In  this  matter  of  constitu- 
tional law  we  are  dealing  with  the  powers  of  government 
rather  than  with  the  opinions  or  education  of  any  particu- 
lar person. 


\ 


II. 

THE  IMPORTANCE  OF  THIS 
CONTROVERSY. 

May  it  please  your  honor  to  give  me  patient  indulgence, 
while  I  urge  upon  your  attention  those  considerations 
which  I  believe  will  induce  you  to  annul  the  blasphemy 
statutes  under  which  this  prosecution  is  brought. 

I  believe  the  future  historian  will  say  that  this  case  is 
the  most  important  prosecution  that  has  come  before  a 
court  of  this  State  for  a  century.  I  know  that  if  this  case 
is  not  terminated  in  accord  with  the  sentiments  of  the 
more  enlightened  portion  of  the  community,  your  decision 
will  necessarily  place  a  club  in  the  hands  of  the  intolerant 
and  bigoted,  whereby  the  intelligent  ones  can  be  cowed 
and  silenced  in  matters  of  religious  controversy.  There-\ 
fore,  unless  this  cause  is  decided  in  accord  with  the  Con- 
stitution, as  interpreted  in  the  light  of  the  best  under- 
standing of  the  preceding  historical  controversy  that  can 
be  brought  to  bear  upon  it,  your  decision,  instead  of 
terminating  a  controversy,  may  but  kindle  the  flames  of  a 
most  bitter  future  contest. 

Fanaticism  is  not  the  characteristic  monopoly  of  any 
party  or  sect.  It  is  an  accompaniment  of  those  immature 
modes  of  feeling  and  thinking  where  the  primitive  im- 
pulses dominate,  unchecked  by  any  adequate  understand- 
ing of  self  or  the  related  environment.  Such  waves  of 
fanaticism  come  and  go.  They  manifest  themselves  in 
support  of  all  creeds.  Now,  to  help  the  catholic  party; 
then  to  help  one,  and  again  another,  protestant  sect ;  like- 
wise it  has  given  support  to  Mohammedans,  to  Mormons 
and  even  to  avowed  atheists.  The  decision  in  the  present 
case  will  determine  how  the  machinery  of  our  democratic 
constitutions  is  to  be  used  when  the  next  revival  of  fanati- 
cism shall  possess  some  considerable  portion  of  our  com- 
munity. 

19 


20  BLASPHEMY. 


This  precedent  will  determine  measurably  whether  in 
our  Intermountain  States,  Mormons  may  make  it  a  crime 
to  speak  disparagingly  of  the  utterances  of  their  "living 
oracles  of  God";  whether  in  Maryland  they  can  re-enact 
a  law  protecting  the  Virgin  Mary  against  criticism  i>er- 
mitted  against  all  other  women;  and  the  penalizing  of 
Protestantism;  whether  in  Georgia  Catholicism  may  be 
penalized,  etc.,  etc.  If  the  courts  have  any  power  to  pun- 
ish blasphemy,  then  the  legislatures  have  the  power  to 
penalize  as  blasphemy  almost  anything  at  least  within  the 
range  of  the  common  law,  which  they  choose  to  believe  is 
of  a  dangerous  tendency,  and  so  include  it  in  their  defini- 
tions of  blasphemy.  Then  Massachusetts  and  Connecticut 
are  free  to  re-enact  the  barbarous  codes  of  their  colonial 
regime.  If  that  shall  be  so,  then  our  constitutional  guar- 
antee of  equality,  of  freedom  of  speech,  and  for  a  separa- 
tion of  church  and  state,  have  accomplished  nothing 
whatever  toward  the  enlargement  of  intellectual  liberty. 
All  is  left  a  matter  of  legislative  discretion,  just  as  it  was 
from  the  beginning  of  government,  down  to  the  American 
Eevolution. 

Defendant  Unimportant. 

In  the  City  Court  this  defendant  was  found  guilty  and 
sentenced  to  ten  days  in  jail,  and  required  to  give  a  bond 
to  keep  the  peace.  If  this  were  simply  a  matter  of  one 
more  person  inhabiting  our  jails  for  ten  days,  this  argu- 
ment would  never  have  been  made. 

At  the  former  trial  in  the  District  Court  it  was  sug- 
gested to  the  defendant  thai?  he  might  get  off  with  a  sus- 
pended sentence,  if  he  would  plead  guilty.  If  he  had  seen 
in  this  case  nothing  more  important  than  his  personal 
safety,  this  case  would  have  been  terminated. 

The  defendant  Mockus  himself  realizes  that  he  is  of  very 
little  importance  here,  relative  to  a  precedent  which  may 
be  established  in  his  case.  Such  a  precedent  will  probably 
be  followed  in  other  states,  and  so,  for  generations  to 
come,  it  will  ^x  the  limits  of  religious  liberty  for  many 
millions  of  people.  There  can  be  no  constitutional  ques- 
tion of  more  importance  than  this  one.      "A  point  that 


THE   IMPORTANCE   OF    THIS    CONTROVERSY.  21 

is  caiTied  for  the  sake  of  punishing  a  worthless  fellow, 
may  be  cited  hereafter  as  a  precedent  for  the  most  dan- 
gerous prosecution  and  oppression  of  an  excellent 
patriot.'^^  Precedents  which  are  favorable  to  the  official's 
lust  for  power  are  easiest  secured  and  most  readily  f-ol- 
lowed.  Precedents  favorable  to  intellectual  liberty  are 
few  and  far  between  because  we  all  have  too  little  dem.- 
ocracy  and  too  much  of  the  tyrant  in  us. 

In  this  case  there  will  be  presented  a  class  of  argument, 
much  of  which  has  never  before  been  considered  in  a  case 
of  this  character.  The  inevitable  consequence  is  that  the 
decision  in  this  ca*se  will  be  the  beginning  of  a  new  line 
of  precedent  on  the  most  important  of  all  subjects; 
namely,  the  powers  of  government  in  dealing  with  the  sub- 
ject of  religion. 

In  this  great  world  probably  no  one  man,  or  the  opinion 
of  any  one  man,  is  of  very  great  importance ;  but  the  legal 
autliority  and  power  to  suppress  any  man's  opinions  is 
of  the  utmost  importance,  because  it  implies  the  authority 
and  power  to  suppress  all  expression  of  opinion  on  a  given 
subject,  or  all  opinions  of  a  disapproved  character.  Thus, 
to  confirm  judicially  the  power  to  punish  this  man  for 
merely  expr-^ssing  an  opinion  is  to  place  the  destiny  of 
intellectual  progress  in  the  hands  of  legislators,  judges 
and  jurors^  instead  of  allowing  it  to  rest  in  the  unham- 
pered intell(»ctual  activity  of  the  people  at  large,  where  i^ 
rightfully  belongs  in  a  democracy.  This  defendant's  lib- 
erty is  of  importance  primarily  to  him,  but  to  confirm  the 
power  to  impiison  him  for  a  mere  psychologic  offense  im- 
perils the  liberty  of  many  generations  to  come.  In  that 
consists  the  importance  of  this  case. 

For  the  purpose  of  upholding  the  defendant's  constitu- 
tional right  of  free  speech,  it  is  not  at  all  necessary  to 
approve  either  his  opinions  or  his  mode  of  expressing 
them.  Here,  we  are  concerned  with  a  conflfct  between 
human  rights,  and  the  powers  of  government,  not  with 
irreligion  or  oratorical  style.  In  this  argument,  we  may 
and  should  ignore  the  man,  his  message,  his  style  or  the 

*A  letter  concerning  Libels,  etc.     Lond.  1764,  p.  22. 


22  BLASPHEMY. 


psychologic  tendency  of  any  or  all  of  these.  The  import- 
ance of  the  case  does  not  arise  from  any  of  these  things, 
but  from  the  fact  that  the  issue  is  one  of  the  constitutional 
power  of  the  State  authorities  to  meddle  with  a  religious 
subject 

Priestly  on  Importance  of  Authority. 

Upon  this  subject  the  following  observations  by  the 
Kev.  Dr.  Joseph  Priestly  are  worth  quoting.  In  his  "View 
of  the  Principles  and  Conduct  of  the  Protestant  Dis- 
senters," (p.  58),  he  makes  these  sensible  remarks:  "It 
should  be  considered  that  a  power  of  decreeing  rites  and 
ceremonies,  is  a  power  absolutely  indefinite,  and  of  the 
very  same  kind  with  those  claims,  which,  in  things  of  a 
civil  nature,  always  give  the  greatest  alarm.  A  tax  of  a 
penny  is  a  trifle ;  but  a  power  of  imposing  that  tax  is  never 
considered  as  a  trifle,  because  it  may  imply  absolute 
servitude  in  all  who  submit  to  it.  In  like  manner,  the 
enjoining  of  the  posture  of  kneeling  at  the  Lord's  Supper 
is  not  a  thing  worth  disputing  about  in  itself,  but  the 
authority  of  enjoining  it  is;  because  it  is,  in  fact,  a  power 
of  making  the  Christian  religion  as  burdensome  as  the 
Jewish,  and  a  power  that  hath  actually  been  carried  to 
that  length  in  the  church  of  Rome.  Nor  do  we  see  any 
consistence  in  the  church  of  England  rejecting  the  author- 
ity of  Rome  in  these  things,  and  imposing  her  own  upon 
us."  *  *  Again  (p.  66)  :  "Our  ancestors,  the  old  Pur- 
itans, had  the  same  merit  in  opposing  the  imposition  of 
the  surplice,  that  Hampden  had  in  opposing  the  levying 
of  ship-money.  In  neither  case  was  it  the  thing  itself 
they  objected  to,  so  much  as  the  authority  that  enjoined 
it,  and  the  danger  of  precedent.  And  it  appears  to  us, 
that  the  man  who  is  as  tenacious  of  his  religious  as  he  is 
of  his  civil  liberty,  will  oppose  them  both  with  equal  firm- 
ness. 

"All  the  difference  then,  in  the  conduct  of  men  who 
equally  value  their  liberty,  will  be  in  the  time  and  manner 
of  opposing  these  incroachments  upon  it.  The  man  of  a 
strong  and  enlarged  mind  will  always  oppose  these  things 


THE    IMPORTANCE   OF   THIS    CONTROVERSY.  23 

in  the  beginning,  when  only  the  resistance  can  have  any 
effect;  but  the  weak,  the  timid,  and  the  short-sighted,  will 
attempt  nothing  till  the  chains  are  rivetted,  and  resistance 
is  too  late.  In  civil  matters,  the  former  will  make  his 
stand  at  the  levying  of  the  first  penny  by  improper 
authority;  and  in  matters  of  religion,  at  the  first,  though 
the  most  trifling  ceremony,  that  is,  without  reason,  made 
necessary;  whereas  the  latter  will  wait  till  the  load,  in 
both  cases,  is  become  too  heavy  to  be  either  supported  or 
thrown  off."^ 

It  has  been  generally  believed  that  here  in  America  we 
had  permanently  barred  the  door  against  a  recurrance  of 
religious  persecution.  Practically  it  now  comes  to  this: 
shall  we  reopen  that  door,  and  thereby  invite  the  next  on- 
slaught of  fanaticism  to  rekindle  the  fires  of  persecution? 
There  can  be  no  assurance  that  a  frenzied  revival  of 
religion  will  not  again  bring  on  a  persecution  mania  to 
which  in  times  of  excitement,  vote-seeking  legislators  and 
even  courts  will  give  heed.  Four  years  ago  none  of  us 
could  have  believed  possible  the  present  riot  of  blood  that 
is  now  devastating  Europe. 

'  Requoted  from  Fumeaux's  Letters  on  Toleration,  Footnote  to  Letter 
V.  pp.   158-160. 


III. 

REASON  versus  PRECEDENT. 

I  should  be  ignoring  such  intelligence  as  I  have,  if  I 
did  not  take  cognizance  of  the  fact  that,  too  frequently, 
judicial  controversies  are  ill  determined,  because  of  an 
undue  valuation  of  precedents  as  a  whole,  or  because  of 
the  relative  over- valuation  of  some  precedents  and  the 
ignoring  of  others,  which  may  be  supported  by  the  better 
understanding.  We  all  know  very  well  of  the  existence 
of  a  great  multiplicity  of  rules  to  guide  us  toward  the 
solution  of  every  legal  problem,  including  those  of  statu- 
tory and  constitutional  construction.  These  rules  are 
very  useful,  if  our  conscious  desire  to  administer  justice, 
according  to  the  most  enlightened  standards,  is  not  in- 
hibited by  subconscious  impulses  to  justify  a  particular 
predisjwsition  in  a  pending  controversy.  In  this  latter 
event  we  may  be  tempted  "to  have  our  way''  and  justify  it 
by  immature  arguments  not  exhibiting  the  use  of  an 
understanding  so  superior  as  to  compel  conviction  among 
the  more  enlightened. 

Our  "rules  of  construction,"  though  expressed  in  gen- 
eral terms,  present  only  highly  concrete  and  dissociated 
aspects  of  the  problems  of  construction.  If  any  urge  is 
strong  enough,  it  will  impel  a  choice  of  those  rules  which 
satisfy  its  demands,  and  to  ignore  those  which  interfere 
with  the  dominant  impulse.  Thus  come  erroneous  prece- 
dents, and  better  precedents.  So  also  come  the  abuse  and 
misuse  of  precedents,  through  their  selection  according  to 
immature  preconceptions,  often  determined  from  subcon- 
scious sources.  From  such  considerations  I  am  led  to  the 
conviction  that  there  is  need  for  a  revaluation  of  prece- 
dents. 

Questioning  Precedents. 

It  may  be  you  will  think  that  the  defendant  is  inviting 
you  to  over-rule  such  precedents  as  Com.  vs.  Kneeland, 

24 


REASON  VERSUS  PRECEDENT. 


37  Mass.  (20  Pick.)  206,  and  People  vs.  Ruggles,  8  John 
( N.  Y. )  290 ;  5  Am.  Dec.  335,  and  in  this  you  are  perfectly 
correct.  However,  in  doing  this  we  will  appeal  only  to 
perfectly  orthodox  modes  of  reasoning  and  to  other  well- 
established  principles.  It  will  presently  be  made  to  ap- 
pear that  in  those  decisions  the  judges  ignored  the  most 
essential  factor  for  reaching  a  correct  conclusion. 

It  may  be  impossible  to  combine  all  rules  for  construing 
statutes  and  constitutions  into  one  comprehensive  gen- 
eralization, adequate  for  all  cases.  There  is  a  better  way 
of  acquiring  a  synthetic  grasp  of  the  legitimate  aims 
which  these  i*ules  promote.  To  this  end  we  need  to  min- 
imize the  im|K)rtance  of  the  rules  themselves,  and  corre- 
spondingly intensify  our  desire  to  understand  the  facts 
which  the  rules  formulate,  and  the  legitimate  ends  which 
they  may  promote.  In  other  words,  we  will  aid  the  pro- 
gressive enlightenment  of  our  concepts  of  justice  and 
liberty,  just  to  the  extent  to  which  we  cease  quarreling 
about  the  dictionary  meaning  and  the  wording  of  prece- 
dents, and  acquire  an  understanding  of  that  behavior  and 
those  relations  among  humans,  which  express  themselves 
in  ever-changing  social  institutions.  /So  long  as  we  view 
social  institutions  and  constitutions  as  static  things,  we 
will  never  adequately  understand  them.  Correctly  to 
intei^pret  the  process  of  their  change  and  growth  is  the 
best  way  to  promote  an  understanding  of  "the  reason  of 
tlie  law"  and  to  insure  the  highest  efficiency  in  a  har- 
monious adjustment  between  governments  and  the  people  J 

—  7' 

Relative  Unimportance  of  Precedents. 

This,  then,  is  our  conception  of  promoting  the  larger 
X>eace,  always  founded  upon  an  ever  growing  enlargement 
and  perfection  of  human  understanding.  The  promotion 
of  general  intellectual  hospitality,  by  the  judicial  action 
in  this  case,  is  the  important  end  sought.  The  defendant, 
Mockug,  and  his  case  now  before  the  court,  are  but  the 
humble  instrument  of  the  court  in  furthering  that  end. 

"I  remind  you  that  it  has  been  judicially  said  that  it 
would  be  of  ill  consequence,  to  authenticate  a  body  of 


r-fiiia^ 


26  BLASPHEMY. 


laws  that  have  lain  dormant  for  two  hundred  years/ '^ 
The  blasphemy  statutes  of  Connecticut  have  lain 
dormant  perhaps  for  more  than  200  years.  Lest 
;y^ou  have  too  much  reverence  for  some  judicial  precedents, 
I  recall  to  your  memory  that  Blackstone  in  his  Commen- 
taries (v.  p.  71)  informs  us  that  *^the  law  and  the  opinion 
of  the  judge  are  not  always  convertible  terms,  or  one  and 
the  same  thing;  since  it  sometimes  may  happen  that  the 
iudge  may  mistalie  the  law."  I  believe  with  the  late 
Chief  Justice  Eyre,  when  he  said  that  "the  sooner  a  bad 
precedent  was  gotten  rid  of,  the  better."  This  sentiment 
was  later  approved  by  Lord  Chief  Justice  Kenyon.^ 

"Precedent  indeed  may  serve  to  fix  principles,  which 
for  certainty's  sake  are  not  suffered  to  be  shaken,  what- 
ever might  be  the  weight  of  the  principle,  independent  of 
precedent.  But  precedent,  though  it  be  the  evidence  of 
law  is  not  law  in  itself ;  much  less  the  whole  of  the  law."  ^ 

I  therefore  make  bold  to  invite  your  endorsement  of 
the  sentiment  of  another  English  judge,  who  said  this: 
"It  was  said  that  there  is  an  authority  which  binds  this 
court,  and  that  I  am  not  to  exercise  my  reason  and  com- 
mon sense,  because  I  am  so  bound.  I  cannot  bear  to  be 
told  when  an  argument  has  been  addressed  to  me  by  which 
I  am  not  convinced,  that  there  is  a  case  decided  which  I 
am  bound  to  follow."* 

This,  then,  is  going  to  be  an  appeal  to  the  understand- 
ing, rather  than  to  the  blind  following  of  precedents.  To 
improve  the  law,  we  must  sometimes  get  behind  the  letter 
of  judicial  opinions  to  understand  the  reasons  which  may 
or  may  not  justify  them.  Thus  pinning  our  faith  to  the 
reason  of  the  law  rather  than  to  its  verbal  expression,  we 
need  to  emphasize  the  importance  of  the  former.  This 
will  now  be  done  by  re-stating  some  of  those  aphorisms 
which  we  learned  at  the  law-school. 

*  Foster,  J.  in  The  King  vs.  Bishop  of  Ely,  1750,  I  Blackstone  Rep.  59. 
'  See  King  vs.  Stone,  1801,  1  East.  648. 

'Lord  Mansfield,  in  Jones  vs.  Randall,  1774.  Lofft  386. 

*  Kay,  J.  in  re  Holmes,  1890,  Law  Jour.  Rep.  n.  s.,  60  Chan.  Div.  269. 


REASON  VERSUS  PRECEDENT.  27 


Importance  of  Knowing  the  Reason. 

"We  know  anything  [only]  when  we  know  the  parts  of 
it,  and  have  conned  and  seen  them  through  and  through.''^ 

In  a  case  such  as  that  now  before  the  court,  where 
religious  and  moral  sentimentalism  so  easily  and  stealth- 
ily creeps  in,  it  is  too  true  that,  "What  reason  weaves,  by 
passion  is  undone.''^ 

I  therefore  invite  your  honor,  in  the  language  of  Sir 
John  PowelF:  "Let  us  consider  the  reason  of  the  case. 
For  nothing  is  law  that  is  not  reason." 

If  my  memory  serves  me,  it  was  Lord  Coke  who  said 
something  like  this :  "Reason  is  the  life  of  the  law ;  nay, 
the  common  law  itself  is  nothing  else  but  reason.  *  * 
Law  is  the  perfection  of  reason.  *  *  How  long  so  ever 
it  hath  continued,  if  it  be  against  reason  it  is  of  no  force 
in  law.  *  ♦  ♦  He  that  knows  not  the  reason  of  the  law 
knows  not  the  law/' 

"The  law  is  the  perfection  of  reason,  that  it  always  in- 
tends to  conform  thereto  and  that  what  is  not  reason  is 
not  law.  *  *  ♦  Much  more  if  it  be  clearly  contrary  to 
the  divine  law."  ^ 

Another  has  put  it:  "Law  is  nothing  else  than  right 
reason  drawn  from  the  will  of  the  gods,  commanding  what 
is  right  and  prohibiting  the  contrary."^ 

Let  us  prove  the  correctness  of  Lord  Mansfield  when  he 
said  that  "very  happily  the  more  the  law  is  looked  into 
the  more  it  appears  founded  in  equity,  reason,  and  good 
sense."^^ 

I  am  going  to  invite  this  Court  to  a  searching  inquiry 
as  to  the  reasons  which  once  made  courts  and  legislators 
deem  laws  against  blasphemy  vital  to  the  very  existence 
of  the  State,  and  then  I  will  show  you  that  these  conditions 

"  Coke's  Tracts,  226. 

"  Pope,  "Essay  on  Man." 

'See:  Coggs  v.  Bernard,  2  L'd  Raymond  Rep.  p.  911. 

•V.  1  Black.    Com.  70. 

"Footnote  to,  3  Lewis'  Blackstone  1019,  and  evidently  quoted  from 
Cicero. 

"James  v.  Price,  1773,  Loflft's  Rep.  K.  B.  221. 


28  BLASPHEMY. 


have  been  designedly  abrogated  by  the  constitutions  of  the 
United  States  and  of  the  State  of  Connecticut.  By  thus 
understanding  the  reason  of  both  the  statute  law  and 
constitutional  law,  I  believe  the  consequence  will  be  a 
complete  annulment  of  these  blasphemy  laws  here  in- 
volved. 

This  does  not  mean  that  I  am  going  to  ask  you  to  ignore 
any  of  the  fundamental  principles  of  the  law.  Rather  is 
it  my  purpose  to  invite  you  to  enforce  the  more  funda- 
mental and  important  principles  of  our  constitutions,  and 
emphasize  these  at  the  expense  of  some  lesser  theories 
which  I  will  show  you  are  misconceived  principles,  and 
have  been  outgrown. 

Evolution  by  New  Precedent. 

Perfectly  understood,  the  principles  of  the  law  are 
eternal,  but  our  understanding  of  them  and  of  the  condi- 
tions of  their  application  is  subject  to  change  with  the 
changing  circumstances  of  the  times.^^ 

In  that  sense  "law  grows"  with  the  growth  of  our  under- 
standing, and  the  old  formulas  of  our  legal  principles  are 
"only  broken  down  slowly  by  legislation  and  decisions  of 
the  courts." ^2 

It  is  then  nothing  revolutionary  that  I  am  inviting  you 
to  do.  I  simply  ask  the  recognition  and  recording  of  a 
development  that  has  long  been  achieved. 

Presently  I  will  invite  you  to  look  into  the  immediate 
constitutional  problems  more  thoroughly  than  has  been 
done  heretofore.  We  will  seek  a  solution  to  them  by 
understanding  very  thoroughly  the  historic  controversies 
that  embody  the  essence  of  the  reasons  which  led  to  the 
adoption  of  these  constitutional  provisions. 

All  through  the  argument  which  follows  there  will  be 
a  conscious  effort  to  get  behind  the  letter  of  the  law  in 
order  to  understand  its  reasons.  To  do  this  efficiently  it 
will  often  be  advantageous  to  ask  ourselves  why  some 

"  See  Lord  Coleridge,  in  Reg.  vs.  Ramsey,  1883  blasphemy  case,  1  Ca- 
babe  &  Ellis,  Q.  B.  D.  135. 

"  Kay,  J.  in  Whitby  v.  Mitchell  1889,  L.  R.  4  C  Ch.  Div.  500. 


REASON  VERSUS  PRECEDENT.  29 

Courts  sometimes  have  failed  to  see  the  larger  considera- 
tions which  should  have  influenced  them.  This  unavoid- 
ably requires  some  inquiry  into  the  mental  operations 
involved. 

It  is  possible  that  at  first  blush  these  psychologic  and 
evolutionary  concepts  which  have  been  suggested  will  be 
thought  somewhat  foreign  to  the  law.  To  those  to  whom 
it  seems  so,  I  can  now  say  only  that  the  best  correction  of 
their  error  can  be  found  in  a  genetic  and  evolutionary 
study  and  understanding  of  their  own  impulses,  esx)ecially 
the  unconscious  ones.  Even  in  the  absence  of  that  I  hope 
to  make  the  importance  of  this  at  least  partly  evident.  I 
venture  to  persist  in  pressing  this  viewpoint,  because  I  am 
confident  that  it  will  be  the  dominant  basis  of  our  future 
criticism  of  judicial  action. ^^ 

"  See  my  essay,  "The  Psychology  of  Judicial  Opinions,"  soon  to  be 
published. 


IV. 

CONSTITUTIONAL   CONSTRUCTION 
AND  INTELLECTUAL  METHOD. 

It  is  frankly  admitted  that  there  exists  no  judicial 
precedent  directly  supporting  the  contention  that  blas- 
phemy laws  are  unconstitutional.  It  is  also  admitted 
that  there  are  two  precedents  directly  in  point  and  against 
the  main  contention  of  this  argument.  Beyond  these 
there  is  much  of  dictum  that  can  be  easily  used  by  way 
of  analogy  to  support  either  side  of  this  controversy. 
This  situation  makes  it  important  to  have  a  conscious  and 
intelligent  attitude  toward  precedents  as  a  whole,  and  of 
the  legitimate  use  to  be  made  of  them.  Beyond  these 
we  need  an  understanding  of  the  intellectual  methods  by 
which  the  over-valuation  and  misuse  of  precedents  may 
be  prevented. 

Precedents  are  valuable  for  the  discovery  of  what  has 
been  achieved,  but  the  uncritical  following  of  precedent 
can  contribute  little  to  progress  in  refining  our  sense  of 
justice  or  of  the  limits  of  liberty.  To  evolve  beyond  exist- 
ing precedents  it  becomes  necessary  to  give  them  a  sympa- 
thetic understanding  without  reverential  parroting.  In 
its  best  aspect  precedents  are  studied  with  the  object  of 
promoting  a  still  more  clarified  and  comprehensive  view 
of  social  problems  and  in  the  hope  of  finding  their  solution 
upon  a  higher  intellectual  level,  than  that  offered  by 
existing  precedents,  or  that  on  which  the  problem  arisen. 

From  this  viewpoint  it  follows  that  the  chief  value  of 
precedents  does  not  consist  in  the  fact  that  a  formula  has 
been  worked  out,  but  in  such  understanding  as  is  imparted 
concerning  the  reasons  which  make  both  for  and  against 
the  formula  as  a  guide  to  future  conduct.  Through  the 
stimulation  of  a  new  situation,  sometimes  we  may  be  led 
to  take  the  next  step  in  our  intellectual  and  juridical 
evolution.      It  is  believed  that  this  present  controvers^y 

30 


CONSTITUTIONAL  CONSTRUCTION.  31 

affords  such  an  opportunity.  Precedents  will  be  cited, 
but  much  more  time  and  space  will  be  devoted  to  achieving 
a  critical  understanding  of  the  underlying  behavior  of 
social  forces  than  the  meaning  of  judicial  formriliL 

With  this  in  mind  we  will  begin  with  quoting  some 
judicial  decisions  prescribing  some  of  the  rules  of  consti- 
tutonal  construction.  This  will  be  follow^ed  by  some  gen- 
eral discussion  of  the  use  to  be  made  of  them  and  the 
intellectual  methods  involved.  The  following  rules  are 
copied  from  the  Encyclopedia  of  U.  S.  Supreme  Court 
Reports  (1909),  vol.  4,  where  references  can  be  found  to 
the  justifying  decisions.  In  rare  instances  the  footnotes 
will  contain  references  to  similar  statements  from  the 
decisions  of  state  courts. 

Rules  of  Construction. 

When  there  is  no  ambiguity  in  words  used,  taken  sep- 
arately or  in  connection,  as  a  term  or  phrase,  they  require 
no  other  interpretation  than  is  to  be  found  in  the  known 
and  universally  received  standard  by  w^hich  they  are  de- 
fined, nor  can  they  be  taken  in  any  other  sense  or  by  any 
other  reference,  unless  there  appears  from  the  context 
or  other  parts  of  the  same  instrument  an  obvious  inten- 
tion to  use  and  apply  them  differently  from  their  ordinary 
or  legal  acceptation.^ 

This  rule  requiring  adherence  to  the  literal  meaning  of 
the  constitutional  words  should  settle  all  questions  of 
intellectual  freedom.  It  would  have  done  so  long  ago  had 
it  not  been  that  some  judges  have  had  a  strong  emotional 
aversion  to  the  inevitable  results  of  following  the  letter 
of  the  constitutions.      In  consequence    these    have    read 

'Briscoe  v.  Bank,  11  Pet.  257;  9  L.  Ed.  709. 
Gibbons  v.  Ogden,  9  Wheat.  524;  9  L.  Ed.  519. 
Hodge  V.  U.  S.,  203  U.  S.  1-11;  51  L.  Ed.  65. 
Denn  v.  Reid,  10  Pet.  524;  9  L.  Ed.  519. 
Kidd  V.  Pearson,  128  U.  S.  1-20:  32;  L.  Ed.  346. 
Lake  Co.  v.  Rollins,  130  U.  S.  662-670;  32  L.  Ed.  1060. 
R.  I.  V.  Mass.,  12  Pet.  657-721 ;  9  L.  Ed.  1233. 
McPherson  v.  Blacker,  146  U.  S.  1-27;  36  L.  Ed.  869. 
Hill  V.  City  of  Chicago,  60  111.  90. 
Green  v.  Weller,  32  Miss.  652. 
Chesapeake  &  O.  R.  Co.  v.  Miller,  19  W.  Va.  408. 
Lee  Bros.  Furniture  Co.  v.  Cram;  63  Conn.  438. 


32  BLASPHEMY. 


meanings  and  exceptions  into  the  constitutions  hj  annex- 
ing Blackstone  or  themselves  to  it.  Whatever  doubt  exists 
about  the  meaning  of  religious  liberty,  intellectual  equal- 
ity and  freedom,  does  not  arise  out  of  the  constitutions, 
but  out  of  the  judicial  amendments  that  have  been  made 
thereto. 

"The  constitution  is  a  written  instrument.  As  such  its 
meaning  does  not  alter.  That  which  it  meant  when 
adopted  it  means  now.''^ 

"It  is  not  only  the  same  in  words,  but  the  same  in  mean- 
ing, and  delegates  the  same  powers  to  the  government,  and 
reserves  and  secures  the  same  rights  and  privileges  to  the 
citizens ;  and  as  long  as  it  continues  to  exist  in  its  present 
form,  it  speaks  not  only  in  the  same  words,  but  with  the 
same  meaning  and  intent  with  which  it  spoke  when  it 
came  from  the  hands  of  its  framers,  and  was  voted  on  and 
adopted  by  the  people  of  the  United  States.  Any  other 
rule  of  construction  would  abrogate  the  judicial  character 
of  this  court,  and  make  it  a  mere  reflex  of  the  popular 
opinion  or  passion  of  the  day."^ 

"We  cannot  recognize  the  doctrine  that  because  the  con- 
stitution has  been  found  in  the  march  of  time  sufficiently 
comprehensive  to  be  applied  to  conditions,  not  within  the 
minds  of  its  framers,  and  not  arising  in  their  time,  it  may, 
therefore,  be  wrenched  from  the  subjects  expressly  em- 
braced within  it,  and  amended  by  judicial  decision  without 
action  by  the  designated  organs  in  the  mode  by  which  alone 
amendments  can  be  made."* 

In  all  instances  where  construction  becomes  necessary, 
therefore,  we  must  place  ourselves  in  the  position  of  the 
men  who  framed  and  adopted  the  constitution,  and  in- 
quire what  they  must  have  understood  to  be  the  meaning 
and  scope  of  the  language  used.  To  this  end  the  courts 
must  look  to  the  history  of  the  times  and  examine  the  state 


'Scott  V.  Sandford,  19  How.  393-426;  15  L.  Ed.  691. 

McPherson  v.  Blacker,  146  U.  S.  1-36 ;  36  L.  Ed.  869. 

Pollock  V.  Farmers'  Loan,  Etc.,  Co.,  158  U.  S.  601-621;  39  L.  Ed.  1108. 

South  Carolina  v.  U.  S.,  199  U.  S.  437-448;  50  L.  Ed.  261. 
'  South  Carolina  v.  U.  S.,  199  U.  S.  437-449;  50  L.  Ed.  261. 
*  McPherson  v.  Blacker,  146  U.  S.  1-36;  36  L.  Ed.  869. 


CONSTITUTIONAL  CONSTRUCTION.  33 

of  things  exislino  when  it  was  framed  and  adopted,  in 
order  to  correctly  interpret  its  meaning.^ 

"When  called  upon  to  construe  and  apply  a  provision 
of  the  constitution  of  the  United  States,  we  must  look  not 
merely  to  its  language,  but  to  its  historical  origin,  and  to 
those  decisions  of  this  court  in  which  its  meaning  and 
the  scope  of  its  operation  have  received  deliberate  con- 
sideration."^ 

^^The  necessities  which  gave  birth  to  the  constitution, 
the  controversies  which  preceded  its  formation,  and  the 
conflicts  of  opinion  which  were  settled  by  its  adoption, 
may  properly  be  taken  into  view  for  the  purpose  of  tracing 
to  its  source  any  particular  provision  of  the  constitution, 
in  order  thereby  to  be  enabled  to  correctly  interpret  its 
meaning."^ 

"In  construing  any  act  of  legislation  whether  a  statute 
enacted  by  the  legislature,  or  a  constitution  established 
by  the  people  as  the  supreme  law  of  the  land,  regard  is 
to  be  had,  7iot  onlp  to  all  parts  of  the  axit  itself,  OMd  of  any 
former  act  of  the  same  lawmaking  power,  of  which  the 
act  is  an  amendment;  but  also  'to  the  condition,  amd  to  the 
history  of  the  law  as  previously  existing,  and  in  the  light 
of  which  the  new  act  must  be  read  and  interpreted/'^ 

In  construing  a  constitutional  provision  the  courts  in- 
quire as  to  the  provision  superseded  by  the  one  to  be  con- 
strued, the  evils  and  defects  for  which  it  did  not  provide, 
the  remedy  adopted,  and  the  reason  for  it,  and  will  adopt 

•R.  I.  V.  Mass,  12  Pet.  657-723;  9  L.  Ed.  1233. 
Passenger  Cases,  7  How.  283-428.  429;  12  L.  Ed.  702. 
Ex  Parte  Bain,  121  U.  S.  1-12;  30  L.  Ed.  849. 
Pollock  V.  Farmers  L.  &  T.  Co.,  157  U.  S.  429-558;  39  L.  Ed.  759. 
Pollock  V.  Farmers  L.  &  T.  Co.,  158  U.  S.  601-621;  39  L.  Ed.  1108. 
In  re  Debs,  158  U.  S.  564-591;  39  L.  Ed.  1092. 
U.  S.  V.  Wong  Kim  Ark,  169  U.  S.  649-653;  42  L.  Ed.  890. 
Maxwell  v.  Dow,  176  U.  S.  581-602;  44  L.  Ed.  597. 
Knowlton  v.  Moore,  178  U.  S.  41-95;  44  L.  Ed.  969. 
Missouri  V.  III.  180  U.  S.  208-219;  45  L.  Ed.  497. 
South  Car.  v.  U.  S.,  199  U.  S.  437-450;  50  L.  Ed.  261. 

'Missouri  V.  111.,  180  U.  S.  208-219;  45  L.  Ed.  497. 
Reynolds  v.  U.  S.,  98  U.  S.  145-163. 

'Pollock  V.  Farmers  L.  &  T.  Co..  157  U.  S.  429-558;  39  L.  Ed.  759. 
Knowlton  v.  Moore,  178  U.  S.  41-95 ;  44  L.  Ed.  969  (requoting  above). 
"U.  S.  V.  Wong  Kim  Ark,  169  U.  S.  649-653;  42  L.  Ed.  890. 


34  BLASPHEMY. 


that  construction  which  will  suppress  the  mischief  and 
advance  the  remedy.^ 

"Just  so  is  it  with  the  grant  to  the  national  government 
of  power  over  interstate  commerce.  The  constitution  has 
not  changed.  The  power  is  the  same.  But  it  operates 
today  upon  modes  of  interstate  commerce  unknown  to  the 
fathers,  and  it  will  operate  with  equal  force  upon  any  new 
I   modes  of  such  commerce  which  the  future  may  develop. "^^ 

But  while  the  meaning  of  the  language  employed  does 
not  change,  it  applies  from  generation  to  generation  to  all 
things  to  which  it  is,  in  its  nature,  applicable,  embracing 
within  its  operation  all  new  conditions  which  are  within 
the  scope  of  the  powers  in  terms  conferred.  ^^ 

It  is  only  in  cases  of  doubtful  construction  that  resort 
is  to  be  had  to  the  practical  construction  placed  upon  the 
constitution  by  the  legislative  and  executive  departments. 
The  plain  language  or  historic  meaning  of  the  constitution 
cannot  be  altered  by  the  practice  prevailing  in  any  depart- 
,  ment  of  the  government  nor  by  the  interpretation  placed 
i  upon  any  particular  provision  by  legislative  enactment. ^^ 

"It  is  a  maxim,  not  to  be  disregarded,  that  general  ex- 
pressions, in  every  opinion,  are  to  be  taken  in  connection 
with  the  case  in  which  those  expressions  are  used.  If  they 
go  beyond  the  case,  they  may  be  respected,  but  ought  not 
to  control  the  judgment  in  a  subsequent  suit,  when  the 
very  point  is  presented  for  decision.  The  reason  of  this 
maxim  is  obvious.  The  question  actually  before  the  court 
is  investigated  with  care,  and  considered  in  its  full  extent. 
Other  principles  which  may  serve  to  illustrate  it  are  con- 
sidered in  their  relation  to  the  case  decided,  but  their 

'  Town  of  McGregor  v.  Baylies,  19  La.  43. 

Fox  V.  McDonald,  101  Ala.  51-13  South.  R.  416. 

Bandel  v.  Isaac,  13  Md.  202. 

People  V.  State  Treas.,  23  Mich.  499. 

Minn.  &  P.  R.  Co.  v.  Sibley,  2  Minn.  13. 

Wise.  Cent.  R.  Co.  v.  Taylor,  52  Wise.  37-8  N.  W.  833. 
"In  re  Debs  158  U.  S.  564-591;  39  L.  Ed.  1092. 
"In  re  Debs,  158  U.  S.  564-591;  39  L.  Ed.  1092. 

South  Carolina  v.  U.  S.,  199  U.  S.  437-448;  50  L.  Ed.  261. 

De  Lima  v.  Bidwell,  182  U.  S.  1-197;  45  L.  Ed.  1041. 
"Fairbank  v.  U.  S.,  181  U.  S.  283-307;  45  L.  Ed.  862. 

U.  S.  V.  Wong  Kim  Ark,  169  U.  S.  649-699;  42  L.  Ed.  890. 


CONSnTUTIONAL  CONSTRUCTION.  35 

possible  bearing  on  all  other  cases  is  seldom  completely 
investigated."^^ 

In  the  construction  of  all  laws  and  constitutions  we  look 
to  the  old  law,  the  mischief  and  the  remedy,  and  so  ex- 
pound the  law  as  to  suppress  the  mischief  and  advance 
the  remedy.^* 

In  the  absence  of  a  saving  clause  the  adoption  of  a  new 
constitution,  or  the  amendment  of  an  old,  operates  to 
supersede  and  revoke  all  previous  inconsistent  and  irrecon- 
cilable constitutional  and  statutory  provisions  and  rights 
exercisable  thereunder  at  least  so  far  as  their  future  oper- 
ation is  concerned.  ^^ 

"The  safe  way  is  to  read  its  language  in  connection  with 
the  known  condition  of  affairs  out  of  which  the  occasion 
for  its  adoption  may  have  arisen,  and  then  to  construe  it, 
if  there  be  therein  any  doubtful  expressions,  in  a  way,  so 
far  as  is  reasonably  possible,  to  forward  the  known  pur- 
pose or  object  for  which  the  amendment  was  adopted.  This 
rule  could  not,  of  course,  be  so  used  as  to  limit  the  force 
and  effect  of  an  amendment  in  a  manner  which  the  plain 
and  unambiguous  language  used  therein  would  not  justify 
or  permit."^^ 

Rules  versus  Desires. 

*  These  are  some  of  the  rules  of  construction  which  seem 
most  directly  applicable  to  our  present  problem.  Prob- 
ably all  other  rules  of  construction  are  also  more  or  less 
remotely  applicable. 

A  moment's  reflection  will  make  it  plain  that  it  is  not 
rules  of  constitutional  construction  which  will  decide  this 

"Cohen  V.  Virginia,  6  Wheat.  264-399;  L.  Ed.  257. 
"Briscoe  v.  Bank,  11  Pet.  257-328  n.;  9  L.  Ed.  709. 

Jarrolt  v.  Moberly,  103  U.  S.  580-586;  26  L.  Ed.  492. 
"Republica  v.  Chapman,  1  Dall.  53-56;  L.  Ed.  33. 

Neal  V.  Delaware,  103  U.  S.  370-389;  26  L.  Ed.  567. 

Commissioners  v.  Loague,  129  U.  S.  493 ;  32  L.  Ed.  589. 

Shreveport  v.  Cole,  129  U.  S.  36-42;  3Z  L.  Ed.  589. 

Kankauna  Water  Power  Co.  v.  Green  Bay,  142  U.  S.  252-269;  35  L. 

Ed.  1004. 

U.  S.  V.  Villato,  2  Dall.  370-373 ;  1  L.  Ed.  419. 

Ex  parte  Yarbrough,  110  U.  S.  651-665;  28  L.  Ed.  274. 

Norton  v.  Board  of  Com.,  129  U.  S.  479-493 ;  32  L.  Ed.  774. 
^Maxwell  v.  Dow,  176  U.  S.  581-602;  44  L.  Ed.  597. 


36  BLASPHEMY. 


case.  The  result  will  be  determined  by  a  choice  among  the 
rules  that  can  be  made  applicable,  and  the  use  which  will 
be  made  of  them.  We  may  go  still  farther  back  and  say 
that  the  very  choice  of  rules  to  be  applied  and  the  manner 
of  using  them,  will  be  (at  least  in  part)  determined  by  a 
previous  desire  operating  in  the  mind  and  emotions  of  the 
judge.  From  this  psychologic  viewpoint  the  ultimate 
decision  will  be  determined  according  to  the  relative  ma- 
turity of  the  desires  and  intellectual  processes  of  those 
judges,  who  shall  deal  with  this  case.  The  rules  of  con- 
struction merely  become  the  tools  by  which  they  justify 
their  desires  and  incidentally  and  unconsciously  exhibit 
their  relative  stations  in  an  evolutionary  scale  of  emo- 
tional maturity  and  of  intellectual  development.  This  is  a 
general  truth,  applicable  to  all  cases  but  seldom  acknowl- 
edged. 

Let  me  state  this  same  truth  in  another  form.  *It  is 
obvious  that  in  the  consideration  of  problems  of  religious 
liberty  there  are  great  differences  of  opinion,  each  view 
being  advocated  with  more  or  less  intensity  of  feeling. 
Since  the  objective  factors  of  the  problem  are  substan- 
tially the  same  for  all  of  us,  it  seems  to  follow  that  the 
immediate  cause  of  our  differences  must  be  sought  within 
ourselves.  That  is  to  say,  our  differences  are  due  to  dif- 
ferences of  temperament  (predisposition),  and  differences 
in  mental  processes,  and  in  the  materials  which  are  thus 
excluded  from  consideration  or  co-ordinated  by  one  or 
another  of  us.  Because  of  these  considerations,  it  becomes 
important  that  we  should  consider  our  mental  methods  as 
a  conscious  part  of  the  process  of  reaching  a  more  satis- 
factory conclusion  upon  this  perplexing  problem,  which 
has  cost  so  much  blood  and  life. 

The  Soienttfio  Method. 

If  our  mental  processes  were  uniformly  those  of  the 
trained  scientist  dealing  with  the  material  universe,  there 
would  be  quite  as  great  uniformity  of  result  in  the  field  of 
religion  as  in  the  realm  of  mathematics.  While  there  are 
those  who  know  nothing  about  mathematics,  yet  among 
its  devotees  there  is  no  serious  disagreement  about  results. 


CONSTITUTIONAL  CONSTRUCTION.  .  37 

If  we  are  to  promote  growth  toward  a  more  uniform  solu- 
tion of  this  problem  of  religious  liberty,  it  must  be  done 
by  finding  a  solution  on  a  higher  intellectual  level — ^that 
is,  a  closer  adherence  to  the  scientific  method — than  that 
which  is  customary.  Only  thus  can  we  attain  a  more  per- 
fect co-ordination  of  larger  ranges  of  the  related  factors 
of  this  problem.  Only  thus  can  we  hope  for  a  more  satis- 
factory and  more  lasting  solution  of  the  problem  of  intel- 
lectual freedom. 

When  considering  problems  of  liberty  of  conscience  it 
is  easy  to  find  very  many  judicial  opinions  and  dicta, 
which  lend  themselves  to  justifying  the  practical  annul- 
ment of  our  constitutional  guarantees.  There  also  exist 
some  few  which  could  be  used  by  way  of  analogy  to  justify 
the  result  herein  contended  for.  Upon  this  subject,  an 
argument  by  analogy  from  precedent  upon  either  side  can 
do  little  more  than  furnish  a  misleading  justification  for 
whatever  predisposition  one  may  entertain.  This  is  be- 
lieved to  be  so,  because  none  of  these  dicta  appear  to  be 
the  result  of  such  intellectual  processes  as  are  best  calcu- 
lated to  produce  the  more  permanent  solution. 

Checking  Predispositions. 

If  we  are  bringing  to  our  problem  a  desire  and  a 
capacity  to  understand  the  reason  of  things,  by  the  use 
of  mature  intellectual  methods,  then  our  effort  must  be 
to  submit  all  our  predispositions  to  the  check  and  justifi- 
cation of  the  realties  of  our  problem.  These  realities  con- 
sist of  the  impulses  and  ideals  which  the  makers  of  our 
constitutions  sought  to  record  and  perpetuate  in  those 
instruments,  and  the  evils  which  they  sought  to  end.  We 
can  not  acquire  this  understanding  by  merely  seeing  if 
the  words  they  used  can  x>ossibly  be  construed  in  harmony 
with  our  desires.  Neither  will  it  do  to  see  one  part  of 
our  guarantees  of  liberty  dissociated  from  the  rest.  Nor 
should  we  be  content  to  see  our  constitutions  dissociated 
from  the  trend  of  the  previous  human  progress.  The 
better  understanding  can  be  achieved  only  by  an  inquiry 
into  the  minutiae  of  the  historic  issues  in  the  making,  a 
decision  upon  which  issues  was  recorded  in  our  constitu- 


38  BLASPHEMY. 


tions.    This  knowledge  must  then  be  used  as  a  check  upon 
our  predisposition. 

Here  again,  these  historic  issues  and  debates  must  be 
studied,  not  with  the  view  of  reading  our  predispositions 
into  themj  but  rather  with  the  view  to  understanding  the 
ideals  of  principle  behind  the  rhetoric  of  polemics.  We 
must  not  be  content  to  ask  how  many  of  the  controversial- 
ists defended  predispositions  like  our  own,  but  rather 
should  we  ask  what  purpose  was  sought  to  be  accom- 
plished. What  was  the  line  of  cleavage  between  that  pur- 
pose which  prevailed  in  the  constitutional  conventions, 
and  that  older  view  which  was  then  and  there  overcome? 

Mature  and  Immature  Methods. 

If  we  approach  the  discussion  with  the  dominant  desire 
to  understand  our  problem  in  its  larger  evolutionary  rela- 
tions, and  allow  our  predispositions  to  be  checked  and  sub- 
ordinated to  such  an  understanding  as  we  may  read  out 
of  our  constitutions,  then  there  can  hardly  be  much  dif- 
ference of  opinion. ^"^ 

This  is  only  another  way  of  saying  that  if,  in  the  first 
instance,  our  legal  problems  are  decided  by  the  inductive 
and  synthetic  methods,  applied  to  all  the  objective  factors 
of  the  problem,  the  result  will  be  as  acceptable  to  all  per- 
sons capable  of  mature  methods  of  reasoning,  as  is  the 
multiplication  table  to  mathematicians.  If,  however,  we 
are  content  to  read  our  own  prior  impulses  into  the  prob- 
lem, the  inductive  checks  and  synthetic  process  will  bt^ 
ignored,  and  the  proof  of  it  will  be  evident  in  the  resultant 
special  plea,  and  all  that  it  distorts,  perverts  or  ignores. 
Such  a  decision  will  satisfy  all  those,  and  only  those,  who 
are  possessed  by  similar  and  equally  unreasoned  impulses 
which  need  intellectualization ;  it  cannot  enlighten,  much 
less  convince,  those  of  contrary  predisposition,  who  find 
their  contrary  sx)ecial  pleas  evaded,  instead  of  answered 
or  co-ordinated;  neither  can  it  command  the  respect  of 
those  who  are  conscious  of  the  difference  between  mature 
and  immature  intellectual  processes. 

"For  an  elaboration  of  this  thought  see  "Intellectual  Evolution  and 
Pragmatism"  in  The  Monist,  Jan.,  1915. 


CONSTITUTIONAL  CONSTRUCTION.  39 


Dogma  and  Sentiment. 

We  need  constantly  to  remind  ourselves  of  the  differ- 
ence between  mere  dogma  and  conventional  moral  senti- 
mentalism,  on  the  one  hand,  and  mature  intellectual 
method  on  the  other  hand.\  In  the  latter  no  factor  of  the 
probleai  is  ignored,  and  all  are  co-ordinated  and  used  as 
inductive  checks  upon  our  preconceptions.  This  is 
deemed  important  because  my  reading  has  persuaded  me 
that,  in  dealing  with  questions  of  religious  liberty,  these 
intellectual  methods  are  the  most  neglected.  It  is  always 
upon  the  subject  of  religion  that  we  most  need  an  efftcient 
check  upon  our  unconscious  urge  to  act  as  though  we  our- 
selves were  gods,  engaged  in  the  task  of  avenging  a  per- 
sonal insult. 

If  w^e  no  longer  use  the  fagot  or  branding  iron  to  punish 
for  mere  psychologic  offences,  but  punish  them  in  more 
humane  fashion,  this  speaks  well  for  our  sentiments,  but 
in  itself  is  no  recommendation  for  our  intellect.  So  long 
as  we  punish  any  mere  psychologic  offence,  there  must 
prevail  the  old  method  of  dogmatising  in  defense  of 
mere  blind,  automatic,  emotional  reactions.  This  is  mani- 
festly so  because  we  do  not  punish  upon  the  basis  of  an 
inductively  determined  relation  between  the  penalized 
idea  and  any  consequent  actual  and  material  injury. 

Making  Bad  Precedents. 

The  immature  method  applied  to  social  sciences  and 
the  law,  means  little  more  than  the  intellectualization  of 
our  impulses  into  a  formula.  At  its  best  this  method  only 
utilizes  a  special  plea  to  justify  an  emotional  predisposi- 
tion. In  the  process,  old  precedents  are  often  misapplied 
and  distorted,  and  pernicious  new  precedents  are  created. 
It  is  by  such  processes  that  we  arrive  at  most  of  our  fine 
moral  sentimentalizings  which  so  enthral  the  multitude, 
whose  enthusiasm  for  them  often  becomes  so  amazing  to 
the  intelligence  of  future  generations.  Thus  it  comes  that 
we  know  because  we  feel,  and  are  firmly  convinced  hecoMse 
strongly  agitated.  Thus  it  comes  that  we  enshrine  our 
unenlightened  impulses  into  solemn  decree    and    sacred 


40  BLASPHEMY. 


dogma,  and  denounce  all  dissent  as  dangerous  to  morality, 
church  and  state.  If  our  impulses  are  sufficiently  morbid, 
our  "morality"  may  achieve  such  a  compelling  importance 
that,  under  the  pretence  of  the  love  of  God  or  country,  we 
become  willing  to  incarcerate,  maim,  haug,  or,  with  a 
red-hot  iron  bore  a  hole  in  the  tongue  of  the  heretic,  or 
burn  him  to  ashes,  even  though  he  has  done  no  actual  or 
material  injury  to  anyone.  Has  the  time  arrived  when  a 
Court  has  been  founded  with  sufficiently  strong  desire  and 
intelligence,  to  decide  such  a  controversy  according  to  the 
requirements  of  mature  mental  methods? 

BvoLUTiON  Beyond  Keligious  Feelings. 

Religion  is  always  largely  a  matter  of  feelings,  and  the 
emotions  are  predominant  just  in  proportion  as  our  men- 
tal processes  in  relation  to  religion  are  relatively  prim- 
itive. It  follows  that  when  we  are  dealing  with  a  problem 
of  constitutional  law  and  intellectual  liberty  in  relation 
to  religion,  we  always  need  to  exercise  special  precaution. 
It  is  precisely  because  religious  feelings  are  stimulated  that 
we  are  prone  to  regress  to  more  immature  methods  of 
reasoning.  It  is  the  consciousness  of  this  which  induces 
me  to  persist  still  further  in  my  exposition  of  the  mean- 
ing of  mature  mental  processes,  to  be  applied  to  consti- 
tutional construction. 

This  intellectual  evolution  which  I  seek  to  bring  to 
consciousness,  involves  the  use  of  a  progressively  more 
inclusive  understanding  of  the  relation  and  behavior  of 
human  forces  as  expressed  in  human  institutions.  This 
is  a  means  to  the  end  that  this  understanding  may  operate 
as  a  check  upon  immature  intellectual  methods  for  satis- 
fying an  immature  urge,  toward  the  consciousness  of 
power  arbitrarily  to  impose  our  will  upon  others.  All 
blasphemy  laws  are  conceived  as  of  this  character.  I  will 
endeavor  to  make  this  general  statement  as  to  method 
more  concrete  by  exhibiting  its  significance  as  applied  to 
the  problem  of  constitutional  construction. 

The  Synthetic  View. 
If  a  judge's   dominant   desire   is   to    get   behind    the 


CONSTITUTIONAL  CONSTRUCTION.  41 

acquired  meaning  of  the  constitutional  words,  in  order  to 
understand  better  the  human  desires  and  ideas  of  which 
those  words  are  symbols,  and  if  he  seeks  thus  to  acquire  a 
more  precise  and  yet  more  comprehensive  concept  of  intel- 
lectual liberty,  he  will  pursue  a  different  mode  of  thinking 
than  that  of  Blackstone,  or  the  courts  in  the  Ruggles  and 
Kneeland  cases,  to  be  presently  reviewed.  Then  he  will  not 
be  content  to  use  his  astute  intellect,  even  in  the  most  pre- 
cise kind  of  word-jugglery.  If  we  bring  to  such  a  i)rob]em 
the  larger  understanding,  we  cannot  be  content  with  e^en 
a  very  critical  analysis  of  separate  constitutional  phrases, 
treating  each  as  something  wholly  dissociated  from 
every hing  else.  The  facts  of  human  intelligence  and 
growth,  even  as  expressed  in  human  institutions  and  con- 
stitutions, never  exist  in  such  isolation.  If  we  see  them 
thus,  and  treat  them  thus,  it  must  be  that  our  intellectual 
vision  is  unfortunately  limited,  at  least  as  to  this  par- 
ticular problem.  It  will  be  shown  that  where  religion  is 
concerned,  eminent  judges  felt  too  intensely  to  make  it 
easy  for  them  to  see,  or  to  co-ordinate,  all  the  factors  of 
such  a  problem,  with  the  same  impersonal  attitude  and 
the  same  acumen  that  is  usually  brought  to  bear  upon 
other  juridical  problems. 

Previous  Historic  Trend. 

The  true  purposes  of  our  constitutional  guarantees  of 
liberty  can  only  be  determined  by  studying  the  trend  and 
tendencies  of  the  historic  controversies  which  culminated 
in  the  Bill  of  Rights  as  a  whole.  From  this  view^point, 
each  part  of  the  Bill  of  Rights  is  but  a  separate  and  dis- 
tinct means,  to  the  end  of  protecting  a  larger  concept  of 
liberty — a  concept  much  more  inclusive  than  is  indicated 
by  the  mere  words  of  any  of  the  fragmentary  barriers 
erected  for  its  protection.  Probably  we  have  not  yet 
reached  that  stage  of  intellectual  development  where  lib- 
erty and  tyranny  can  be  differentiated  by  a  single  phrase, 
or  defined  with  precision  in  a  single  generalization,  which 
is  broad  enough  to  cover  accurately  every  issue  between 
them.  But  we  can  see  clearly  some  concrete  means  by 
which  our  liberties  have  been  destroyed,  and  we  can  and 


42  BLASPHEMY. 


do  erect  equally  concrete  barriers  against  the  repetition  of 
those  particular  methods  of  the  tyrant.  Probably  that  is 
all  the  Constitutions  really  lecorded,  leaving  the  Courts  to 
interpret  these  acts,  declare  the  principle  and  apply  it  to 
any  concrete  situation  which  might  thereafter  arise,  even 
though  it  had  not  previously  entered  the  imagination  of 
man. 

Discovering  the  Reason  and  Principle. 

If,  then,  we  desire  to  achieve  an  accurate  understanding 
of  the  meaning  of  our  constitutional  rights,  in  relation  to 
a  concrete  problem,  the  mode  of  procedure  is  fairly 
obvious.  First  we  should  acquire  a  clear  view  of  the  rela- 
tion of  the  present  problem  to  those  historic  controversies 
which  eventuated  in  our  constitutional  guarantees  The 
details  of  separate  problems  so  remote  from  one  aaother 
in  point  of  time  will  doubtless  be  very  unlike.  However, 
the  older  controversies  always  involved,  more  or  less  con- 
sciously, some  definite  and  ascertainable  general  principles 
applicable  to  the  present  situation.  Undoubtedly,  at  firSt, 
these  were  imperfectly  conceived,  and,  even  in  the  end, 
perhaps,  crudely  stated;  but  they  were  always  there,  im- 
plicit, and  more  or  less  clearly  expressed.  Our  object 
must  be  to  discover  with  growing  accuracy  those  prin- 
ciples which  the  Constitution  makers  were  striving  to 
protect  against  future  invasion,  and  then  to  ask  ourselves 
whether  any  such  principle  is  in  danger  of  being  violated 
in  the  present  instance. 

Our  constitutional  guarantees,  like  our  concepts  of  lib- 
erty, are  the  product  of  previous  development.  As  we  seek 
gradually  to  correct  the  evil,  it  is  by  first  generalizing 
separate  aspects  of  it.  As  fast  as  our  vision  clarifies,  we 
negative  one  barrier  after  the  other,  and  finally  w^e  may 
achieve  a  fairly  comprehensive  prevention  of  tyranny  and 
a  synthetic  concept  of  freedom.  A  history  of  the  English 
Constitution  perfectly  illustrates  this  point.  Begin- 
jiing  with  the  Charter  of  Henry  the  first,  followed  by 
the  Great  Charter  of  King  John,  we  have  a  series  of  char- 
ter amendments,  each  necessitated  to  inhibit  a  new  aspect 
of  tyranny,  brought  about  by  the  official  attempt  to  evade 


CONSTITUTIONAL  CONSTRUCTION.  43 

the  true  meaning  and  purposes  of  the  former  concessions 
of  liberty.  If  kings  and  judges  had  honestly  and  intelli- 
gently attempted  to  understand  and  to  live  up  to  the  pur- 
poses of  Magna  Charta,  instead  of  exercising  great  inge- 
nuity in  interpreting  its  words  so  as  to  evade  its  object, 
much  suffering  and  bloodshed  would  have  been  spared. 
Let  us  be  warned  not  to  follow  so  immature  a  method  of 
dealing  with  our  own  social  problems. 

Continuous  Evolution. 

Our  Constitutions  are  the  expressions  of  a  slow  intel- 
lectual growth.  Our  Constitution-makers  had  the  benefit 
of  much  of  Englauji^s  experience,  and  were  seeking  as  best 
they  could  to  generalize  that  experience  according  to  their 
understanding  of  it.  Not  being  near  to  omniscience,  the 
vision  was  incomplete.  Notwithstanding  this,  a  study  of 
tliose  past  conflicts  is  quite  indispensible  for  the  clarifica- 
tion of  our  present  understanding.  In  fact,  our  concepts 
of  justice  and  liberty  are  always  in  the  making  and  are 
iilwaj^s  in  conflict  with  the  new  invasion  resorted  to  by 
individuals  and  governments,  sometimes  sanctioned  by 
Courts.  Accordingly,  amendments  or  new  applications  of 
our  guarantees  of  liberty  are  made  necessary. 

If,  then,  we  would  get  the  true  meaning  of  our  Consti- 
tutions, we  must  view  the  provisions  both  historically  and 
synthetically.  We  must  see  each  of  the  guarantees  as  a 
fragmentary  means  of  accomplishing  a  unified  purpose, 
which  in  this  case  is  the  protection  of  an  ever-perfecting 
concept  of  enlarging  intellectual  freedom.  These  con- 
stitutional objectives  must  be  seen  as  the  expression  of  a 
living,  changing,  growing,  human  intelligence,  which  at 
any  moment  can  be  adequately  understood  only  if  seen  in 
true  perspective  and  evolving  relations  to  what  has  gone 
before. 

Reading  Into  and  Out  of  the  Constitution. 

Here  let  me  say  that  this  view  of  constitutional  inter- 
pretation, though  progressive,  is  something  very  different 
from  that  "elastic  constitution''  of  which  certain  re- 
formers spoke  so  loudly  a  few  years  ago.     The  difference 


44  BLASPHEMY. 


is  one  between  reading  new  meanings  out  of  the  Consti- 
tution by  a  more  thorough  studying  of  its  antecedent  his^ 
tory  and  genesis,  and  on  the  other  hand,  reading  a  mean- 
ing into  it,  solely  by  a  study  of  subsequent  extraneous  de- 
velopments. It  is  the  former  that  I  propose,  and  the 
historic,  synthetic,  and  psychologic  method  as  the  means. 
From  this  retrospective  evolution,  if  seen  in  process  of 
change,  conforming  to  a  general  law  of  development,  we 
secure  also  a  concept  of  prospective  evolution.  When  we 
acquire  an  intellectual  grasp  adequate  for  such  a  task, 
our  decisions  will  always  be  abreast  of  the  best  thought 
of  our  time.  If  judges  lack  this  development,  their  de- 
cisions will  retard  the  progressive  clarification  of  concepts 
of  liberty  and  justice.  So  our  Courts,  by  attempting  to 
block  the  natural  forces  that  make  for  social  evolution, 
may  become  the  undesigning  promotors  of  riot  and  revo- 
lution. The  larger  understanding  of  natural  law  in  the 
social  organism  impels  toward  a  ready  and  cheerful  con- 
formity to  its  evolutionary  process. 

Detecting  Mere  Plausible  Pretences. 

Where  desire  is  strong,  sophistry  comes  easy.  Whether 
consciously  or  unconsciously,  if  judges  are  impelled 
to  the  doing  of  that  which  in  the  larger  view  is  to  be 
regarded  as  mischievous,  an  abundance  of  righteous  and 
plausible  pretenses  can  always  be  found,  for  the  justifica- 
tion of  any  desired  means  or  ends.  Yet  herein  lies  some 
public  safety,  that  it  is  just  as  impossible  to  conceal  ignor- 
ance and  prejudice  as  it  is  impossible  to  justify  error, 
without  ignoring  or  misusing  some  essental  factors  of  the 
problem.  Whether  on  or  off  the  judicial  bench,  the  ignor- 
ance and  prejudices  of  men  are  accurately  measurable, 
by  the  quantity  of  material  factors  which  are  overlooked, 
or  misused,  in  the  special  plea  that  is  offered  for  self- 
justification.  If  all  our  energies  are  unified  upon  the  task 
of  looking,  all  the  facts  of  our  problem  square  in  the  face, 
with  the  single  purpose  of  trying  to  understand  the  human 
behavior  and  relations  involved  therein,  then  that  fact 
will  also  be  apparent  upon  the  face  of  the  justification 
supporting  tte  decision.     When  we  develop  the  objective 


CONSTITUTIONAL  CONSTRUCTION.  45 

method  in  judicial  problems,  to  the  same  extent  that  we 
have  done  in  the  material  sciences,  then  there  will  be  no 
more  disagreement  among  judges  than  now  obtains  among 
mathematicians.  Then  also  will  the  public  discontent 
over  courts  be  no  greater  than  it  is  with  the  multiplication 
table.  It  is  hoped  that  the  method  here  outlined,  by  its 
application  to  the  problem  now  before  the  court,  may  do  a 
little  something  toward  this  desirable  end. 

The  excuse  for  this  elaborate  discussion  of  principles 
and  methods  is  not  to  be  found  in  an  assumption  that 
judges  are  ignorant  of  them,  but  in  the  belief  that  in  a 
case  such  as  this  one,  they  are  most  likely  to  be  overlooked 
and  ignored.  By  refreshing  our  memory,  and  holding 
these  matters  firmly  in  consciousness,  we  will  see  all  that 
follows  as  part  of  a  coherent  process. 


RUGGLES  DECISION  CRITICISED. 

Every  attempt  to  uphold  the  constitutionality  of  blas- 
phemy laws  will  necessarily  depend  in  some  measure  upon 
the  New  York  decision  of  1811,  in  the  case  of  People  vs. 
Ruggles.^  In  order  to  secure  a  more  open-minded  attitude, 
it  becomes  necessary  to  question  the  reasoning  and  the 
authority  of  that  decision.  To  that  end  we  will  proceed 
to  a  critical  review  of  it.  This  is  done  in  the  confidence 
that  it  will  api>ear  thaf  the  Buggies  decision  expressed  a 
misconception  of  the  law  at  the  time  of  its  rendition,  and 
that  since  then  it  has  been  over-ruled,  both  as  to  its  essen- 
tial foundations  and  its  conclusions. 

A  careful  and  critical  review  of  the  English  decisions 
in  blasphemy  cases  shows  that  they  were  essentially  based 
on  the  English  conception  of  the  State  and  the  Church  as 
being  but  different  aspects  of  the  same  human  institution. 
Many  times,  in  giving  their  reasons  for  the  blasphemy 
laws,  the  English  courts  have  repeated  Lord  Hale's  state- 
ment that  "The  Christian  religion  is  part  of  the  law  it- 
self." Of  course,  recent  decisions  say  this  Is  no  longer 
true  in  any  such  sense  as  was  then  implied.  Blackstone,^ 
declaring  the  law  as  it  was  understood  at  his  time,  said 
that :  "Law  is  the  perfection  of  reason,  that  it  always  in- 
tends to  conform  thereto,  and  that  what  is  not  reason  is 
not  law;  ♦  ♦  ♦  much  more  if  it  be  clearly  contrary  to 
the  divine  law."  Thus  divine  law  is  as  fundamental  as  are 
our  constitutions  in  relation  to  mere  statutes.  Coke  re- 
ports that  "Words  against  an  archbishop  are  words  against 
the  Government"  and  punishable  as  treason.^ 

Kent  on  Church  and  State. 
In  contradiction  to  much  more  of  this.  Justice  Kent  in 
the  Ruggles  case  declared  of  blasphemy  that  "such  of- 

*8  Johnson  290;  5  Am.  Dec.  335.    'v.  1,  p.  70. 
'  See  Mencle  on  Libel,  p.  288,  A.  D.  1823. 

40 


RUGGLES   DECISION   CRITICISED.  47 

fences  have  always  been  considered  independent  of  any 
religious  establishment  or  the  right  of  the  church."  The 
falsehood  of  this  will  be  demonstrated  in  our  later  study 
pf  the  blasphemy  decisions.  That  he  should  thus  ignore 
what  would  seem  to  be  patent  facts  to  most  lawyers  of 
our  time  suggests  that  this  statement  was  the  result  of  an 
overwhelming  impulse  in  Judge  Kent  to  explain  away  the 
natural  effect  of  the  New  York  Constitutional  provisions 
jagainst  a  union  of  church  and  state  and  for  tolerance. 

If  by  the  above  statement  Justice  Kent  had  meant  only 
to  convey  the  idea  that  the  essential  motive  for  blasphemy 
laws  was  a  protection  for  royalty  and  aristocracy  in  the 
continued  enjoyment  of  privileges  and  prerogatives,  then. 
;the  statement  has  some  truth  in  it,  but  loses  its  importance. 
Even  though  in  this  light  the  protection  of  the  church  was 
;not  an  end  in  itself,  it  became  an  essential  objective  means 
for  the  accomplishment  of  the  royalists'  political  desire. 
An  inseparable  part  of  the  program  was  the  protection  of 
the  "rights"  of  the  Church  as  embodied  in  the  temporal 
privileges  of  the  "spiritual"  aristocracy,  such  as  "benefit 
of  clergy,"  state  support,  etc.,  etc.  In  return,  the  estab- 
lished clergy  always  supported  the  King  and  the  temporal 
aristocrats.  The  consequence  of  so  using  the  church  and 
its  ecclesiastical  machinery  has  been  to  create  the  sub- 
stance of  a  legally  established  church  organization  and  an 
official  theology.  The  mode  of  its  verbal  acknowledgment 
is  unimportant.  In  the  light  of  this.  Justice  Kent's  state- 
ment must  be  regarded  as  untrue,  or  a  mere  verbalism, 
void  of  significance. 

In  the  same  opinion,  Justice  Kent  practically  admits 
the  error  of  the  statement  already  quoted,  when  he  says: 
"The  very  idea  of  jurisprudence  with  the  ancient  law- 
givers and  philosophers  embraced  the  religion  of  the  coun- 
try." There  we  have  it  in  a  nutshell.  There  never  has 
been  a  government  which  had  a  complete  separation  from 
religion.  Even  in  America,  the  present  separation  is  com- 
plete only  in  theory,  not  in  practice.  In  most  countries 
the  word  "church"  symbolizes  one  aspect,  the  word  "state" 
another  aspect,  of  the  same  thing.  The  distinction  is 
rhetorical  only,  and  blasphemy  laws  are  but  one  manifesta- 


48  BLASPHEMY. 


tion  of  a  religion  which,  is  in  fact  more  or  less  completely 
and  legally  established.  It  would  seem  to  follow  that 
where  the  constitution  prohibits  a  union  of  church  and 
state,  that  thereby  it  prohibits  the  punishment  of  blas- 
phemy. 

Toleration  for  Dutch  Church. 

Let  us  now  examine  into  the  growth  of  intellectual  hos- 
pitality during  New  York's  Colonial  period.  It  is  highly 
probable  that  this  will  shed  some  light  on  the  correctness 
of  the  constitutional  interpretation  which  was  undertaken 
by  Justice  Kent,  in  the  Ruggles  case.  It  is  a  little  singular 
that  he  should  have  ignored  the  developments  which  led 
up  to  the  adoption  of  the  constitutional  provisions  separ- 
ating church  and  state,  because  a  consideration  of  con- 
temporary and  antecedent  historical  events  have  always 
been  considered  an  essential  factor  to  statutory  and  con- 
stitutional construction. 

The  first  mention  of  toleration  that  I  have  found  is 
contained  in  the  Articles  of  Capitulation  by  the  Dutch  to 
the  English,  dated  August  27,  1664.  Article  8  declares 
that:  "The  Dutch  here  shall  enjoy  the  liberty  of  con- 
science in  Divine  worship  and  Church  Discipline."*  To 
be  sure,  this  is  a  very  narrow  limit  of  toleration,  both  as 
to  persons  and  subject  matter.  Subsequent  references  in 
the  law^s  lead  me  to  believe  that  "liberty  of  conscience  in 
Divine  Worship  and  Church  Discipline"  were  meant  to 
include  the  use  of  the  taxing  power  for  the  support  of  the 
Dutch  clergy  and  the  perjDetuation  of  such  privileges  as 
had  been  enjoyed  by  them  as  the  official  Dutch  Church. 
The  seed  of  tolerance  being  once  planted,  subsequent  agi- 
tation and  the  blood  of  martyrs  would  compel  its  growth. 

The  second  official  recognition  of  any  toleration  is  to  be 
found  in  "The  Charter  of  Liberties  and  Privileges  Granted 
by  His  Royal  Highness  [Charles  II.]  to  the  Inhabitants 
of  New  York  and  its  Dependencies,'-  passed  October  30, 
1683,  by  the  Governor,  Councill,  and  the  Representatives 
in  General  Assembly.  This  Bill  of  Rights  is  quite  com- 
prehensive, and  was  passed  "thatt  Justice  and  Right  may 

*Laws  of  New  York,  Revision  of  1813,  vol.  2,  p.  1,  of  Appendix. 


RUGGLES    DECISION    CRITICISED.  49 


be  equally  done  to  all  persons."    Among  other  important 
matters,  it  contains  this: 

Toleration  for  All  Christian  Protestants. 

"No  person  or  persons  which  prof  esse  faith  in  God  hy 
Jesus  Christy  shall  at  any  time,  be  any  ways  molested, 
punished,  disquieted,  or  called  in  question  for  any  dif- 
ference in  opinion  or  matter  of  religious  concernment, 
who  do  not  actuxilly  ddsturhe  the  civil  peace  of  the  prov- 
ince, but  that  all  and  every  person  or  persons  may,  from 
time,  and  at  all  times,  freely  have,  and  fully  enjoy,  his  or 
their  judgments,  or  consciences,  in  matters  of  religion 
throughout  all  the  province,  they  behaving  themselves 
peaceably  and  quietly,  and  not  using  the  liberty  to 
licentiousnesse  nor  to  the  civil  injury  or  outward  disturb- 
ance of  others.  Provided  always,  Thatt  this  liberty  or 
anything  conteyned  therein  to  the  contrary  shall  never  be 
construed  or  improved  to  make  void  the  settlement  of  any 
public  minister  on  Lang  Island.     ♦  .  ♦     ♦ 

"And  whereas  all  the  respective  Christian  Churches  now 
in  practice  within  the  Citty  of  New  Yorke  and  the  other 
places  of  this  province  do  appear  to  be  privileged,  and 
have  been  so  established  and  confirmed  by  the  former 
authority  of  this  government,  be  it  hereby  enacted  by  this 
present  General  Assembly,  and  by  the  authority  thereof, 
That  all  the  said  respective  Christian  churches  be  hereby 
confirmed  therein,  and  that  they  and  every  one  of  them 
shall  from  henceforth  for  ever  be  held  and  reputed  as 
priviledged  churches,  and  enjoy  all  their  former  freedoms 
of  their  religion  in  divine  worship  and  church  discipline, 
and  that  all  former  contracts  made  and  agreed  on  for  the 
mmntenances  of  the  several  ministers  of  the  said  churches 
[be  upheld].  ♦  *  ♦  Provided  also  that  all  other  Chris- 
tian churches  that  shall  hereafter  come  and  settle  within 
this  province,  shall  have  the  same  privileges."^ 

If  we  view  this  language  in  the  light  of  the  preceding 
Treaty,  its  purpose  is  plain.  The  Treaty  with  Holland 
had  evidently  continued  undisturbed  the  privileges  of  the 

*  Laws  of  N.  Y.,  Revision  of  1813,  vol.  2,  Appendix,  p.  v-vi. 


50  BLASPHEMY. 


established  Dutch  Church  and  its  clergy  and  lay  members. 
This  Act  of  the  Assembly  was  manifestly  an  effort  to  de- 
stroy the  relative  privilege  of  the  Dutch  religionists  with- 
out violating  the  Articles  of  Capitulation.  This  was  done 
by  the  simple  expedient  of  elevating  all  other  churches  to 
the  same  degree  of  privilege.  That  is  to  say,  the  same 
degree  of  toleration  and  state  recognition  and  support, 
which  by  Treaty  had  been  insured  to  the  Dutch,  were  now 
made  the  heritage  of  all  Christians. 

It  is  important  to  note  here  that  this  is  the  first  official 
concession  of  English  royalty,  to  the  New  York  Colonists, 
by  amending  the  common  law  as  to  blasphemy  so  as  to 
make  the  limit  of  religious  toleration,  as  between  varying 
groups  of  Christians,  to  consist  of  an  aotual  hredch  of  the 
civil  peace,  instead  of  a  speculative  tendency  founded  upon 
a  breach  of  the  spiritual,  or  religious,  peace.  Now  there 
could  not  be  punishment  of  a  Christian  for  a  mere  hereti- 
cal misinterpretation  of  the  Bible.  While  narrowing  the 
scope,  the  language  follows  the  essential  part  of  the  Rhode 
Island  Act  of  Toleration  of  1664.  This  presented  the  first 
exi)eriment  in  toleration.  In  the  phraseology  of  our  time, 
it  is  the  difference  between  an  axitual  breach  of  the  peace, 
and  a  constructive  breach  of  the  peace,  which  latter  is 
alw^ays  based  upon  a  mere  speculation  as  to  a  psychologic 
tendency.  Insofar  as  the  common  law  based  criminality 
for  intellectual  offences  upon  psychologic  tendency  only 
speculatively  ascertained,  this  enactment  was  a  beneficial 
modification  thereof. 

Toleration  as  Right  Not  Privilege. 

The  third  enactment  affecting  religious  freedom  was 
passed  by  the  General  Assembly  of  the  Colony  of  New 
York,  May  13,  1691.  It  is  entitled :  "An  Act  Declaring 
What  Are  the  Rights  and  Privileges  of  Their  Majesties' 
Subjects  Inhabiting  Within  Their  Province  of  New  York." 
On  the  subject  of  religion  we  find  this  declaration : 

"No  person  or  persons  which  profess  faith  in  God  hy 
Jesns  Christ  His  Only  Son  shall  at  any  time  be  any  ways 
molested,  punished,  disturbed,  disquieted,  or  called  in  ques- 
tion for  any  Difference  in  Opinion  on  matters  of  conscience 


RUGGLES    DECISION    CRITICISED.  51 

in  Religious  Concernment^  who  do  not,  under  that  pretence, 
disturb  the  civil  peace  of  the  Province,  And  that  all  and 
every  such  person  and  persons  may  from  time  to  time  and 
at  all  times  hereafter  freely  and  fully  enjoy  his  or  their 
opinion,  Perswasion,  Judgement,  in  matters  of  conscience 
and  religion  thro-out  all  this  Province,  and  freely  meet  at 
convenient  places  within  this  Province,  and  there  worship 
according  to  their  respective  Perswasions  without  being 
hindered  or  molested,  they  behaving  themselves  peaceably, 
quietly,  modestly  and  religiously,  and  not  using  this  lib- 
erty to  licentiousness  nor  to  the  civil  injury  or  outuyardi 
disturbance  of  others.  Always  Provided,  that  nothing 
herein  mentioned  nor  contained  shall  extend  to  give  liberty 
to  any  persons  of  the  Romish  Religion  to  exercise  their 
manner  of  worship  contrary  to  the  laws  and  statutes  of 
Their  Majesties'  Kingdom  of  England."^ 

William  Smith*^  informs  us  that  this  enactment  was 
designed  as  a  declaration  that  the  Colonists  repudiated 
the  idea  that  they  held  their  rights  of  representation  in 
the  Assembly  as  a  liberty  by  permission  of  the  Crown.  By 
their  act  they  meant  to  affirm  that  this  right  and  others 
were  inherent  in  them  as  men.  In  1697,  King  William 
made  his  contrary  claim,  by  repealing  the  Declaration  of 
Rights  of  1691. 

Actual  v.  Constructive  Injury. 

Waiving  the  questions  involved  as  to  any  change  of 
rights  affected  hereby,  we  may  concern  ourselves  again 
with  the  important  fact  that  here  the  Colonists  a  second 
time  registered  their  aversion  to  constructive  or  psycho- 
logic breaches  of  the  peace.  More  clearly  than  in  the  pre- 
vious charter,  they  insisted  upon  liberty,  and  not  mere 
toleration,  up  to  the  point  of  an  actual  resultant  breach 
of  the  peace.  This  officially  expressed  opinion  should  be 
of  importance  as  registering  in  New  York  the  acceptance 
of  a  progressive  change  of  opinion  as  to  tolerance  that  was 
taking  place  among  all  English-speaking  peoples.     This 

'Acts  of  Assembly  Passed  in  the  Province  of  New  York  from  1691- 

1725,  p.  5.     Bradford,  printer,  1726. 
'  History  of  K.  Y,  p.  127,  A.  D.  1814. 


02  BLASPHEMY. 

conception  had  its  first  effective  advocate  in  John  Milton. 
Briefly  expressed,  that  change  was  a  growth  towwrd  a  tol- 
erance of  all  intellectual  differences,  short  of  their  actually 
having  produced  material  injury.  Those  wishing  to  attain 
an  intelligent  opinion  as  to  the  meaning  of  our  constitu- 
tional guarantees  of  freedom  will  not  exclude  from  their 
consideration  or  understanding  those  previous  changes 
and  expressions  of  public  sentiment  which  finally  were 
recorded  in  our  written  constitutional  guarantees  of  lib- 
erty. We  best  understand  their  meaning  by  knowing  the 
trend  of  thought  of  which  they  were  the  culmination  and 
that  against  which  they  were  aimed.  In  this  view  we 
will  see  also  a  growth  from  mere  tolerance  to  a  conceded 
claim  of  irrevocable  right.  Justice  Kent  entirely  ignored 
this  historic  controversy  and  development.    * 

Jews  Still  Excluded. 

Under  the  influence  of  the  conflict  with  the  Crown,  there 
came  another  important  decision  about  tolerance  in  con- 
nection with  an  election  contest  about  1736.  Here  the 
General  Assembly  decided  that  Jews  could  not  vote  for 
Representatives,  nor  be  permitted  as  witnesses  touching 
any  contested  elections.^  Jews  and  Catholics  still  suf- 
fered disadvantages,  which  the  subsequent  Constitution 
removed,  not  to  produce  a  return  to  common  law  condi- 
tions, but  to  liberalize  the  common  law,  by  bringing  all 
up  to  the  level  of  equality  of  tolerance  with  the  formerly 
favored  Protestant  sects,  who  were  punishable  only  for 
an  actual  breach  of  the  peace.  Thus  tolerance  was  to 
evolve  to  religious  liberty. 

Zenger's  Seditious  Libel. 

Concurrent  with  the  growing  dissentions  between  the 
Colonists  and  the  representatives  of  the  Crown,  there  came 
into  being  John  Peter  Zenger's  'New  York  Weekly  Jour- 
nal, Zenger  w^s  soon  arrested  for  seditious  libel.  A 
stormy  contest  ensued,  during  which  Zenger's  two  attor- 
neys were  disbarred,  and  he  found  it  necessary  to  bring 

« Smith's  Hist,  of  N.  Y,  p.  423,  A.  D.  1814. 


RUGGLES    DECISION    CRITICISED.  53 

Andrew  Hamilton  from  Philadelphia  to  conduct  his  de- 
fence. The  judges  clung  to  all  those  old  rules  designed 
t©  bring  about  a  conviction,  but  the  jury  acquitted.  This 
trial,  in  1735,  "was  far-reaching  in  its  consequences,  and 
was  of  such  importance  that  it  is  doubtful  if  any  case  in 
American  had  a  more  thoroughly  interested  and  attentive 
audience.  ♦  *  *  This  event  has  been  called  ^the  Morn- 
ing Star  of  that  Liberty  which  subsequently  revolutionized 
America'."^  From  such  events  and  in  fragmentary  form 
came  the  clarification  of  people's  thinking  about  the  mean- 
ing of  free  speech.  The  Court  had  instructed  the  jury  to 
find  only  on  the  fact  of  publication,  which  had  been  ad- 
mitted, leaving  it  to  the  Court  to  determine  the  character 
of  the  paper.  The  argument  of  Hamilton  was  a  frank 
appeal  to  the  jury  to  disregard  the  instruction  of  the 
Judge  and  find  upon  their  own  knowledge  such  questions 
as  criminal  intent  and  the  truth  of  the  publication,  which 
they  did.^<* 

Soon  after  the  organization  of  the  State  Government 
and  the  divided  court  in  People  v.  Croswell,^^  a  bill  was 
passed  affecting  libels.  The  preamble  read:  "Whereas, 
doubt  exists  whether  on  a  trial  of  an  indictment  or  in- 
formation for  a  libel,  the  jury  have  a  right  to  give  their 
verdict  on  the  whole  matter  in  issue,"  therefore  it  was 
enacted  that  the  jury  had  such  right,  and  the  truth,  good 
motives,  and  justifiable  ends  should  be  a  defense.  It  also 
prohibited  the  prosecution  of  libel  on  information.  All 
this  was  manifestly  the  legislative  confirmation  of  the 
issues  vainly  contended  for  in  the  Zenger  case,  which  were 
designed  to  promote  freedom  of  the  press.  The  Zenger 
case  almost  found  a  reversal  in  the  famous  Croswell  case^^ 
and  the  principle  involved  in  both  was  firmly  fixed,  for 
the  further  enlargement  of  intellectual  liberty,  in  the  New 
York  Constitutional  Convention  of  1821. 

'  XIII  Nat.  Ency.  of  Amer.  Biography,  298-9. 

"  Several  editions  of  this  trial  have  been  published.    It  is  also  reported 
in  17  Howell's  State  Trials,  p.  675-764. 

"3  John.  393. 

»»3  John.    Cases  337;  1805. 


54    *  BLASPHEMY. 


The  English  Test  Oath. 

Between  1743  and  1745  a  bill  was  introduced,  requiring 
persons  in  the  Colony  to  take  the  Test  Oaths,  appointed 
by  Parliament  for  the  security  of  Government  and 
Protestantism.  The  bill  passed  the  Assembly  by  a  vote 
of  14  to  7.  In  the  meantime,  the  war  between  England 
and  France  was  progressing.  Manifestly,  fear  of  Catholic 
France,  pressure  from  England,  and  a  desire  for  the 
greater  liberty  of  Protestantism  were  the  inspiring  motives 
for  this  anti-Catholic  legislation. 

Issues  the  Same  Everywhere. 

A  review  of  this  Colonial  record  exhibits  the  same  con- 
flict of  ideals  as  to  the  limits  of  toleration  as  that  which 
is  found  everywhere.  Those  who  stood  for  tyranny, 
usually  stood  for  the  repression  of  heretical  opinions  about 
human  institutions,  whether  in  their  religious  or  political 
aspects.  These  persons  fell  back  on  the  reasonings  of 
the  English  courts  about  seditious  libels,  whether  con- 
cerned with  religious  or  jmlitical  doctrines.  The  legisla- 
tive and  judicial  tests  for  penalization,  both  in  England 
and  in  most  American  Colonies  where  the  common  law 
prevailed,  were  dependent  upon  a  problematical  and  spec- 
ulative theory  about  a  prospective  psychologic  tendency  of 
the  incriminated  utterance  to  produce  a  constructive  or 
real  breach  of  the  peace,  through  some  hypothetical  future 
hearer  or  reader. 

The  friends  of  freedom  always  complained  of  this,  be- 
cause of  the  certainty  that  tyranny  would  result  from  such 
unreal  and  uncertain  tests  for  determining  the  limits  of 
intellectual  liberty.  Hence,  the  opponents  of  the  official 
theory  of  religious  liberty  always  tend  toward  an  in- 
sistence that  the  limit  thereof  shall  be  an  actually  ascer- 
tained and  resultant  material  injury,  or  real  disturbance. 
This  tendency  is  portrayed  in  all  discussion  for  the  promo- 
tion of  religious  liberty,  and  shows  itself  in  the  utterances 
of  the  Colonists  of  New  York,  just  as  it  did  in  Khode 
Island,  and  among  the  dissentors  of  England.  As  the 
opposition  to  the  English  judicial  conception  grew  in 
clarity  of  understanding,  the  issues  became  more  definite. 


RUGGLES   DECISION    CRITICISED.  55 

These  issues,  as  to  the  growth  of  religious  liberty,  were 
decided  by  the  Constitutions.  The  growth  through  en- 
larging tolerance  to  true  liberty  has  been  a  progressive 
elimination  of  unrealized  psychologic  tendency  as  an 
excuse  for  penalization. 

The  N.  Y.  Constitution  of  1777. 

The  New  York  Constitution  of  1777  begins  with  a  re- 
cital of  grievances,  which,  among  many,  includes  these: 
"He  [the  King]  refused  his  assent  to  laws  the  most  whole- 
some and  necessary  to  the  public  good.  *  ♦  ♦  '  por  de- 
priving us  in  many  cases  of  the  benefits  of  trial  by  jury." 
Here  we  have  substantially  a  reaffirmance  of  that  declara- 
tion of  rights  which  the  King  had  annulled,  and  from  which 
was  quoted  hereinabove  the  provision  for  mutual  toleration 
among  Christian  sects,  up  to  the  point  of  an  actual  dis- 
turbance of  the  peace.  We  also  see  the  influence  of  the 
trial  of  Zenger,  and  Judge  DeLancy's  effort  to  deprive  the 
jury  of  the  right  to  declare  upon  the  whole  Issue. 

The  New  York  Constitution  of  1777,  in  Article  7,  pro- 
vides that  Quakers  shall  be  allowed  to  declare  their  allegi- 
ance to  the  government  by  affirmation  instead  of  by  oath. 
The  common  law  and  colonial  statutes  in  force  April  19, 
1775,  are  continued  in  force;  but  it  is  provided  "that  all 
such  parts  of  the  said  common  law,  and  all  such  of  the  said 
statutes  and  acts  aforesaid,  or  parts  thereof,  as  may  be 
construed  to  establish  or  maintain  any  particular  denomi 
nation  of  Christians  or  their  ministers,  or  concern  the  alleg 
iance  heretofore  yielded  to  [the  English  sovereign,  etc.] 
or  are  repugnant  to  this  Constitution,  be  and  hereby  are 
abrogated  and  rejected."  The  real  question  in  the  Kuggles 
case  was  whether  or  not  the  common  law  crime  of  blas- 
phemy was  repugnant  to  the  Constitution,  interpreted,  of 
course,  in  the  light  of  these  past  controversies  of  which  its 
provisions  for  the  separation  of  church  and  state  were  a 
culmination.  These  provisions,  which  supplement  the 
foregoing  act  of  disestablishment,  will  now  be  discussed. 

Disabilities  of  the  Clergy. 
Section  38  [N.  Y.  Constitution,  1777] :    "Whereas,  we 


56  BLASPHEMY. 


are  required  by  the  benevolent  principles  of  rational  lib- 
erty, not  only  to  expel  civil  tyranny,  but  also  to  guard 
against  that  spiritual  oppression  and  intolerance  where- 
with the  higotry  and  ambition  of  weak  and  wicked  priests 
and  princes  have  scourged  mankind:  This  Convention 
doth  further  and  in  the  name  and  by  the  authority  of  the 
good  people  of  this  State,  ordain,  determine  and  declare, 
that  the  free  exercise  and  enjoyment  of  religious  profes- 
sion and  worship,  without  discrimination  or  preference, 
shall  for  ever  hereafter  be  allowed  within  this  State  to 
all  mankind.  Provided  that  the  liberty  of  conscience 
hereby  granted  shall  not  be  so  construed  as  to  excuse  acts 
of  licentiousness,  or  justify  practices  inconsistent  with  the 
peace  or  safety  of  the  Sj^tate.'' 

Section  39  provides:  "And  whereas  the  ministers  of 
the  Gospel  are  by  their  profession  dedicated  to  the  service 
of  God  and  the  cure  of  souls,  and  ought  not  to  be  diverted 
from  the  great  duties  of  their  function;  therefore,  no 
minister  of  the  gospel,  or  priest  of  any  denomination  what- 
soever, shall  at  any  time  hereafter  under  any  pretence  or 
description  whatever  be  eligible  to  or  capable  of  holding 
any  civil  or  military  office  or  place  within  this  State." 

The  proviso  in  Section  38  against  licentiousness  may 
be  interpreted  in  the  light  of  the  past  colonial  contro- 
versies as  to  the  limit  of  tolerance.  Thus  construed,  in 
connection  with  the  declaration  of  rights  above  quoted, 
there  can  be  no  doubt  but  that  "licentiousness"  meant 
actual,  and  not  merely  a  constructive,  licentiousness.  The 
line  had  been  plainly  drawn  by  the  Colonial  General 
Assembly.  To  make  their  meaning  plain  beyond  reason- 
able chance  of  controversy  they  expressed  it  in  the  alterna- 
tive, thus:  "To  excuse  acts  of  licentiousness  or  justify 
practices  inconsistent  with  the  peace  [actual  peace]  and 
safety  [actual  safety]  of  the  State." 

That  my  interpolations  express  the  true  purpose  and 
spirit  of  those  who  adopted  this  provision  is  plain,  not 
only  from  the  prior  colonial  declarations,  but  also  from 
the  disestablishment  of  the  church,  which  removed  the 
reason  for  blasphemy  as  a  part  of  constructive  treason. 
Especially  is  this  apparent  from  the  preamble,  which  again 


RUGGLES   DECISION   CRITICISED.  57 

draws  the  lines  between  civil  tyranny  and  actual  breach 
on  the  one  hand,  as  against  spiritual  oppression  and  mere 
tolerance  on  the  other,  together  with  their  attendant  ten- 
dency to  fall  back  upon  a  constructive  civil  disturbance. 
If  Justice  Kent  had  looked  his  problem  squarely  in  the 
face  with  a  dominant  desire  to  meet  every  issue  fairly, 
he  would  have  answered  this  question :  How  can  I  "guard 
against  that  spiritual  oppression  and  intolerance"  sought 
to  be  abrogated  by  the  constitution,  and  yet  enforce  blas- 
phemy laws? 

The  Ruggles  Decision  Again. 

It  was  charged  in  the  Ruggles  case  that  the  defendant 
did  "wickedly,  maliciously  and  blasphemously  utter,"  etc. 
The  question  was  whether  or  not  the  common  law  crime 
of  blasphemy  had  been  abrogated  by  the  constitutional 
provisions  above  quoted.  It  is  noteworthy  that  the  New 
York  Constitution  at  that  time  did  not  yet  expressly  guur- 
antee,  in  any  form,  freedom  of  speech  and  press. 

A  careful  reading  of  Justice  Kent's  decision  in  the  Rug- 
gles case  suggests  that,  when  not  engaged  in  the  mere 
dogmatic  assertion  of  his  ultimate  conclusion,  his  acute 
intellect  is  devoted  to  reading  a  meaning  into  the  Consti- 
tution, not  to  an  endeavor  to  read  a  meaning  out  of  it. 
Through  the  entire  length  of  his  opinion,  the  argument  is 
obviously  directed  to  justify  what  he  thought  the  Con- 
stitution ought  to  be,  rather  than  to  discovering'  the 
opinion  upon  that  subject  entertained  by  those  who  framed 
that  Constitution,  and  the  people  who  adopted  it.  In 
other  words,  under  the  influence  of  his  Christian  zeal,  Mr. 
Justice  Kent  neglected  the  distinction  between  construc- 
tion and  interpolation.  We  shall  presently  see  that  his 
Christian  zeal  was  coupled  with  a  strong  aversion  to  that 
conception  of  religious  liberty  in  which  Roger  Williams 
and  Thomas  Jefferson  believed,  and  which  our  constitu- 
tions adopted. 

Licentiousness  of  the  Press. 

Mr.  Justice  Kent  is  equally  careless  in  his  intellectual 
processes,  when  he  holds  that  the  common  law  crime  of 


58  BLASPHEMY. 

blasphemy  may  be  enforced  under  the  saving  clause 
against  "acts  of  licentiousness  or  [to]  justify  practices 
inconsistent  with  the  peace  or  safety  of  the  State.''  His 
conception  of  "licentiousness"  was  that  of  the  English 
courts,  after  the  repeal  of  the  licensing  laws  and  when 
therefore  the  word  had  lost  its  former  certain  meaning  of 
"unlicensed."  Now  English  Courts  began  to  punish  men 
for  constructive  breaches  of  the  peace,  and  justified  them- 
selves by  theories  about  the  problematical  and  speculative 
psychologic  tendencies  of  an  idea  to  influence  some  hypo- 
thetical hearer  or  reader  of  the  future.  By  their  Declara- 
tion of  Eights  in  1691  the  Colonists  of  New  York  had 
already  made  it  plain  that  they  repudiated  Justice  Kent's 
conception  of  constructive  "licentiousness"  and  construc- 
tive breaches  of  "peace  and  safety  of  the  state."  Both  by 
that,  and  by  the  Charter  of  August  27,  1683,  with  royal 
approval,  they  had  enjoyed  freedom  "for  any  difference  in 
opinion  or  matter  of  religious  concernment"  for  all  those 
"who  do  not  actually  disturb  civil  peace  *  *  *  nor 
to  the  civil  injury  or  outward  disturbance  of  others." 

In  view  of  the  strong  constitutional  language  against 
"the  bigotry  and  ambition  of  weak  and  wicked  priests" 
and  the  disabilities  declared  against  all  priests  and  minis- 
ters, it  is  simply  preposterous  to  say  that  by  this  Consti- 
tution it  was  intended  to  perpetuate  the  common  law  as 
to  blasphemy,  which,  insofar  as  penalization  was  justified 
by  speculations  upon  psychologic  "tendency,"  they,  in 
their  charter  and  Declaration  of  Rights,  had  long  ago 
repudiated.  Justice  Kent  evidently  had  difficulty  in  see- 
ing the  bearings  of  those  constitutional  provisions,  w^hich 
reflected  so  strongly  oti  the  clergy,  because  that  class  in- 
cluded his  revered  grandfather. 

Kent's  Emotional  Disability. 

Like  himself,  his  father  and  grandfather  had  been  edu- 
cated at  Yale  University,  in  a  colony  which  was  ruled  by 
a  spiritual  aristocracy,  where  none  could  hold  office  with- 
out church  membership ;  and  a  property  aristocracy,  where 
none  could  vote  without  taxpaying  qualification;  and  a 
church-state  in  which  the  spiritual  aristocrats  were  sup- 


RUGGLES   DECISION   CRITICISED.  59 

ported  by  the  taxing  power  exercised  by  the  political  aris- 
tocrats. Reared  and  educated  under  such  influences,  it 
was  quite  natural  that  he  should  have  an  emotional  aver- 
sion to  those  provisions  of  the  New  York  constitution 
which  cast  odium  upon  the  system  of  his  human  idols,  by 
reference  to  the  "spiritual  oppression  and  intolerance 
wherewith  the  bigotry  and  ambition  of  weak  and  wicked 
priests  and  princes  have  scourged  mankind."  Ruggles, 
the  blasphemer  before  the  court,  was  one  of  the  party  for 
whose  benefit  the  constitution  had  inveighed  against  the 
judge's  clerical  ancestor,  and  declared  all  like  him  to  be 
ineligible  for  public  office.  The  analytic  psychologist 
knows  best  how  to  value  the  potency  of  that  paternal  in- 
fluence upon  the  aristocratic  feelings  of  Justice  Kent,  and 
can  see  in  it  the  genesis  of  those  tory  predispositions 
which  he  carried  through  life.  The  psychologist  under- 
stands perfectly  how  these  feeling  attitudes,  these  emo- 
tional predispositions,  precluded  Justice  Kent  from  see- 
ing the  hated  constitutional  provisions,  as  being  import- 
ant factors  in  the  interpretation  of  that  other  provison, 
which  he  was  impelled  to  explain  away.  Through  Ruggles 
Justice  Kent  retaliated  upon  those  who  had  done  violence 
to  his  spiritual  aristocracy. 

The  influence  of  his  aristocratic  ancestors  was  still  at 
work  upon  Justice  Kent  while  in  the  constitutional  con- 
vention of  1821.  In  addition  to  his  opposition  to  the  free 
speech  amendment  we  find  him  "opposing  without  success 
the  extension  of  the  electoral  franchise  and  other  demo- 
cratic innovations."^^ 

When  all  the  related  facts  are  taken  into  account  which 
Justice  Kent  ignored,  then  intellectual  self-respect  will 
preclude  our  acceptance  of  his  opinion  in  People  v.  Rug- 
gles as  an  authority  upon  the  meaning  of  a  separation  of 
church  and  state  and  its  implied  intellectual  freedom. 

"Appleton's  Cyclop  of  Amer.  Biography,  v.  3,  p.  521.. 


VI. 
RUGGLES  CASE  OVERRULED. 

In  July,  1894,  the  Grand  Jury  of  Lexington,  Ky.,  in- 
dicted O.  C.  Moore  on  a  charge  of  blasphemy,  at  the  insti- 
gation of  Kev.  E.  L.  Southgate,  a  Methodist  clergyman. 
The  Kuggles  case  was  the  chief  reliance  of  the  Prosecutor. 
The  Court  sustained  a  demurrer  to  the  complaint,  and 
overruled  the  decision  of  Justice  Kent  in  the  Ruggles  case. 
The  following  is  the  opinion,  never  oflBlcially  printed,  but 
now  reproduced  from  the  TnithseeJcer  Annual  for  1895: 

Decision  of  Judge  Parker  Overruling  Judge  Kent. 

"The  defendant,  C.  C.  Moore,  is  charged  with  having 
committed  the  offense  of  blasphemy.  It  is  alleged  in  the 
indictment  that  the  defendant,  intending  to  treat  with  of- 
fensive levity  and  ridicule  the  scriptural  account  of  the 
divine  conception  and  birth  and  to  bring  contempt  against 
Almighty  God  and  his  divine  purpose  in  causing  the  birth 
of  Christ,  did  maliciously  and  blasphemously  publish  in  a 
newspaper  known  as  the  *Blue  Grass  Blade'  the  follow- 
ing words : 

"  *When  I  say  that  Jesus  Christ  was  a  man  exactly  like 
I  am,  and  had  a  human  father  and  mother  exactly  like  I 
had,  some  of  the  pious  call  it  blasphemy.  When  they  say 
that  Jesus  Christ  was  born  as  the  result  of  a  sort  of  Breck- 
inridge-Pollard  hyphenation  between  God  and  a  Jew 
woman,  I  call  it  blasphemy,  so  you  see  there  is  a  stand-off.' 

"It  is  further  charged  that,  by  this  language,  the  defen- 
dant meant  that  pious  and  religious  persons  stated  and  be- 
lieved that  the  birth  of  Jesus  Christ  was  the  result  of  an 
unholy  and  illicit  connection  between  Almighty  God  and 
Mary,  the  mother  of  Christ. 

"To  this  indictment  the  defendant  has  filed  a  demurrer, 
and  thereby  made  the  claim  that  no  offense  against  the 

60 


RUGGLES  CASE  OVERRULED.  61 

laws  of  Kentucky  had  been  charged  against  him.  This 
demurrer  having  been  argued  with  singular  earnestness 
and  ability  by  counsel  both  for  the  prosecution  and  the 
defense,  and  the  question  presented  being  a  new  one  in 
this  state,  the  court  has  given  the  case  unusual  considera- 
tion. 

*'We  have  no  statute  against  blasphemy,  and  our  Court 
of  Appeals,  so  far  as  we  know,  has  never  passed  upon  this 
or  any  similar  question.  We  must,  therefore,  in  our  in- 
vestigations have  recourse  to  the  common  law  and  to  the 
judicial  decisions  of  other  states  and  countries. 

"Blackstone,  in  treating  of  offenses  against  God  and  re- 
ligion, speaks  of  this  offense  as  ^blasphemy  against  the 
Almighty  by  denying  his  being  or  providence  or  by  con- 
tumelious reproaches  of  our  Savior  Christ.'  The  punish- 
ment, he  says,  is  by  fine  and  imprisonment  or  other  in- 
famous corporal  punishment.  The  ground  ui>on  which 
blasphemy  is  treated  as  an  offense  is  that  'Christianity  is 
part  of  the  laws  of  England.'  The  leading  case  in  this 
country  in  which  the  crime  of  blasphemy  was  discussed 
was  that  of  the  People  vs.  Kuggles  [8  John.  290;  s.  c.  5 
Am.  Dec.  335],  decided  by  the  Supreme  Court  of  New 
York  in  1810,  Chief  Justice  Kent  delivering  the  opinion. 
In  that  case  it  was  decided  that  the  common  law  against 
blasphemy  was  still  in  force,  and  a  judgment  to  pay  a  fine 
of  $500  and  be  imprisoned  three  months  was  affirmed.  The 
court  in  this  opinion  cited  with  approval  a  number  of 
English  cases,  in  which  the  right  to  punish  blasphemy  had 
been  vigorously  upheld,  and  quoted  the  words  of  Lord 
Bacon,  'profane  scoffing  doth  by  little  and  little  deface 
the  reverence  for  religion'  and  'two  principal  causes  I  have 
and  know  of  Atheism — curious  controversies  and  profane 
scoffing.'  Whilst  this  opinion  did  not  declare  that  Chris- 
tianity w^as  part  of  the  law  of  the- state  of  New  York,  but 
expressly  disclaimed  that  there  was  an  established  religion 
in  that  state;  yet  the  closeness  with  which  it  adhered  to 
the  definition  of  blasphemy  as  laid  down  by  Blackstone, 
and  the  great  reliance  placed  upon  the  English  decisions, 
make  us  hesitate  to  walk  in  the  path  trod  by  Chief  Justice 
Kent  himself.    For  in  England  there  was  an  established 


62  BLASPHEMY. 


church.  The  church  was  part  of  the  state.  Apostasy 
and  heresy  were  punished;  the  first  commission  of  either 
offense  disqualifying  the  offender  for  holding  office,  and 
the  second  being  punished  by  three  years'  imprisonment 
without  bail.  Even  witchcraft  was  claimed  by  Black- 
stone  to  be  an  offense  against  God  and  religion,  and  to 
deny  the  existence  of  such  a  crime,  as  he  said,  was  "at  once 
to  flatly  contradict  the  revealed  word  of  God,"  though  he 
appeared  to  think  it  well  that  the  punishment  of  this  crime 
had  fallen  into  disuse,  as  there  had  been  no  well  authenti- 
cated modern  instance  of  its  commission. 

"In  this  country,  where  the  divorce  between  church  and 
state  is  complete  and  final,  we  should  examine  with  care 
and  accept  with  caution  any  law  framed  and  intended  for 
a  country  where  church  and  state  are  one.  The  difficulties 
in  reconciling  religious  freedom  with  the  right  to  punish 
for  an  offense  against  any  given  religion  are  manifest. 
From  the  opinion  given  in  the  People  vs.  Ruggles,  we  may 
deduce  as  conclusions  of  the  court  that  the  people  gen- 
erally in  this  country  are  Christians;  that  Christianity  is 
engrafted  upon  the  morality  of  the  country;  that  all  re- 
ligions are  tolerated,  but  that  this  toleration,  as  to  false 
religions,  means  immunity  from  test  oaths,  disabilities, 
and  the  burdens  of  church  establishments;  that  to  revile 
the  Christian  religion  is  an  offense,  but  that  to  revile  other 
religions  is  not  an  offense  punishable  by  law. 

"In  the  bill  of  rights  in  the  Kentucky  Constitution  it  is 
declared  that  all  persons  have  ^the  right  to  worship  Al- 
mighty God  according  to  the  dictates  of  their  consciences  ;^ 
that  ^no  preference  shall  be  given  by  law  to  any  religious 
sect,  society,  or  denomination,  nor  to  any  particular  sys- 
tem of  ecclesiastical  polity,'  and  that  *the  civil  rights, 
privileges,  or  capacities  of  no  person  shall  be  taken  away 
or  in  anywise  diminished  or  enlarged  on  account  of  his 
belief  or  disbelief  of  any  religious  tenet,  dogma,  or 
teaching.' 

"It  is  difficult  to  conceive  how  language  could  be  made 
plainer.  If  the  framers  of  the  constitution  intended  to 
place  all  religions  on  an  exact  equality  before  the  law, 
they  appear  to  have  employed  language  well  calculated 


RUGGLES  CASE  OVERRULED.  63 

to  express  their  pui*pose.  They  recognized  the  fact  that 
men  were  religious,  that  they  held  different  religious  views, 
that  some  had  no  religious  faith,  and,  granting  the  fullest 
religious  freedom,  they  declared  that  the  rights  of  none 
should  be  ^diminished  or  enlarged  on  account  of  his  belief 
or  disbelief  of  any  religious  tenet,  dogma  or  teaching.' 

"Under  this  Constitution  no  form  of  religion  can  claim 
to  be  under  the  special  guardianship  of  the  law.  The 
common  law  of  England,  whence  our  law  of  blasphemy  is 
derived,  did  have  a  certain  religion  under  its  guardianship, 
and  this  religion  was  part  of  the  law.  The  greatest  con- 
cession made  to  religious  liberty  was  the  right  of  learned 
persons  to  decently  debate  ujwn  controverted  points.  The 
essence  of  the  law  against  blasphemy  was  that  the  offense, 
like  apostasy  and  heresy,  was  against  religion,  and  it  was 
to  uphold  the  established  church,  and  not  in  any  sense  to 
maintain  good  order,  that  there  was  a  law  against  blas- 
phemy. The  most  superficial  examination  of  the  chapter 
in  Blackstone  treating  of  offenses  against  God  and  re- 
ligion, must  convince  any  mind  that  the  sole  aim  and 
object  of  these  laws  was  to  preserve  the  Christian  faith, 
as  it  was  then  understood  and  accepted  by  the  established 
church.  It  may  seem  to  us  that  the  punishments  for  these 
offenses  were  severe  in  the  time  of  Blackstone,  but  they 
had  then  been  greatly  mitigated,  as  the  stake  and  fagot 
had  ])een  of  but  too  frequent  use  in  propagating  what  was 
deemed  to  be  the  true  religion.  Even  Blackstone  com- 
plains that  the  definition  of  heresy  had  been  too  uncertain, 
and  that  the  subject  had  been  liable  to  be  burnt  for  what 
he  had  not  understood  to  be  heresy  until  it  was  decided 
to  be  so  by  the  ecclesiastical  judge  who  interpreted  the 
canonical  scriptures.  To  deny  any  one  of  the  persons  of 
the  trinity,  or  to  allege  that  there  were  more  gods  than 
one,  was  a  heresy  and  was  punished  in  the  same  manner 
as  apostasy. 

"Blasphemy  is  a  crime  grown  from  the  same  parent 
stem  as  apostasy  and  heresy.  It  is  one  of  a  class  of 
offenses  designed  for  the  same  general  purpose,  the  foster- 
ing and  protecting  of  a  religion  accepted  by  the  state  as 
the  true  religion,  whose  precepts  and  tenets  it  was  thought 


64  BLASPHEMY. 


all  good  subjects  should  observe.  In  the  code  of  laws  of 
a  country  enjoying  absolute  religious  freedom  there  is  no 
place  for  the  common  law  crime  of  blasphemy.  Unsuited 
to  the  spirit  of  the  age,  its  enforcement  would  be  in  con- 
travention of  the  constitution  of  this  state,  and  this  crime 
must  be  considered  a  stranger  to  the  laws  of  Kentucky. 

"Wherefore  it  is  adjudged  that  the  demurrer  be  and 
it  is  hereby  sustained,  the  indictment  is  dismissed,  the  de- 
fendant's bail  bond  is  quashed,  and  the  defendant  is  dis- 
missed hence  without  delay.  To  this  ruling  of  the  Court 
the  Commonwealth  of  Kentucky  excepts,  and  prays  an 
appeal  to  the  Court  of  Appeals,  which  is  granted." 

A  careful  examination  of  the  Kentucky  reports  has 
failed  to  show  that  this  appeal  was  ever  perfected.  Evi- 
dently the  Attorney  General  became  satisfied  with  the 
law  as  laid  down  by  Judge  Parker. 

The  Implication  of  Ruggles  Decision. 

To  say  that  the  common  law  a^  to  blasphemy  was,  by 
the  framers  of  the  New  York  Constitution,  designed  to  be 
continued  in  force,  is  to  assume  without  evidence,  that 
the  colonists,  without  cause,  deliberately  repudiated  those 
two  enactments  of  the  General  Assembly  which  had  de- 
clared that,  as  between  contending  Christians,  the  test  of 
psychologic  tendency  should  no  longer  determine  guilt, 
and  that  only  actual  disturbance  of  the  realm  should  be 
foundation  for  a  criminal  prosecution  against  religionists, 
who  theretofore  had  been  penalized  as  "blasphemers." 
Justice  Kent's  ruling  was  a  retrogression,  in  conflict  with 
the  evidence  that  the  Constitution  was  designed  to  be  pro- 
gressive. That  is  to  say,  the  Constitution,  construed  as  a 
whole,  was  evidently  designed  to  make  applicable  to  all 
as  a  matter  of  right,  what  had  been  previously  a  privilege 
and  a  modification  of  the  common  law,  for  the  benefit  of 
only  those  who  believed  in  God  by  Christ. 

Other  Reasons  for  Overruling  Ruggles  Case. 

Let  us  now  endeavor  to  study  the  Constitutional  pro- 
visions above  quoted,  in  connection  with  a  brief  recapitu- 
lation of  colonial  history  as  to  toleration.     And  let  us 


RUGGLES  CASE  OVERRULED.  65 

proceed  with  tliat  study  with  a  view  to  understanding  the 
impulses  and  ideas  which  inspired  the  choice  of  constitu- 
tional language  rather  than  to  be  content  with  the  mere 
words  themselves. 

We  know  of  the  Established  Church  in  England.  We 
have  seen  the  Treaty  of  Capitulation  confirm  certain 
privileges  for  the  Dutch  Colonial  Church.  We  have  seen 
how  the  same  rights  were  subsequently  extended  so  as  to 
make  them  the  equal  property  of  all  denominations  in  the 
colony.  In  the  light  of  these  prior  events  the  language  of 
the  Constitution  first  above  quoted  becomes  plain,  "^o 
denomination  of  Christians,  or  their  ministers^  are  to  be 
established  or  maintained."  In  other  words,  all  privileges 
heretofore  extended  to  Christians,  as  such,  are  now  with- 
drawn, whether  arising  from  the  common  law  or  colonial 
enactment. 

The  colonial  Declaration  of  Rights  and  the  Royal  Char- 
ter had  provided  toleration  for  all  those  "which  professed 
faith  in  God  by  Jesus  Christ."  A  very  contrary  spirit  is 
breathed  in  the  Constitution  which  declares  its  purpose 
to  protect  the  citizen  "against  that  spiritual  oppression 
and  intolerance  wherewith  the  bigotry  and  ambition  of 
weak  and  wicked  priests  and  princes  hav^  scourged  man- 
kind." To  make  this  changed  sentiment  effective  they 
also  provide  that  "no  minister  of  the  gospel  or  priest  of 
any  denomination  whatsoever  shall  at  any  time  hereafter 
under  any  pretence  or  description  whatever  be  eligible  to 
or  capable  of  holding  any  civil  or  military  office  or  place 
within  this    State." 

To  my  mind  it  seems  impossible  for  a  man  of  unpreju- 
diced intelligence  to  read  these  provisions  in  the  light  of 
the  antecedent  controversy  and  Declaration  of  Rights, 
and  the  preamble  to  the  constitutional  provision  above 
quoted,  and  then  draw  the  conclusion  that  the  framers  of 
the  Constitution  intended  to  leave  in  force  the  common 
law  as  to  blasphemy,  which  restricted  religions  much  more 
than  the  colonial  charters  under  which  they  had  been 
living.  Indeed,  Mr.  Justice  Kent  does  not  claim  to  do 
auy  such  thing.  He  did  not  even  consider  the  colonial 
controversies  which  the  Constitution    was    designed    to 


6Q  BLASPHEMY. 


settle.  He  made  no  comparison  between  conditions  un- 
der the  colonial  charter,  and  those  which  his  interpretation 
of  the  constitution  re-established.  He  did  not  attempt  to 
co-ordinate  Section  39,  or  the  preamble  to  Section  38,  with 
the  Declaration  of  Right  contained  in  Section  38.  If  he 
had  undertaken  to  construe  these  together,  in  the  light  of 
the  antecedent  colonial  conditions,  with  the  desire  to  dis- 
cover the  purpose  of  the  Constitutional  Convention,  he 
could  scarcely  have  said  in  IBIO,  that  the  common  law 
offense  of  blasphemy  was  a  part  of  the  law  of  New  York 
State. 

Inducements  to  Constitutional  Changes  in  1821. 

It  has  been  pointed  out  that,  in  1810,  when  Justice  Kent 
decided  the  Ruggles  case,  the  Constitution  of  New  York 
contained  no  guarantee  of  freedom  of  speech  and  press. 
That  provision  was  first  adopted  in  the  Constitutional 
Convention  of  1821.  It  may  help  us  toward  an  under- 
standing of  the  Ruggles  case  in  its  relation  to  constitu- 
tional intellectual  liberty  to  ascertain  a  little  more  in 
detail  the  attitude  of  Justice  Kent  toward  the  general 
issue. 

The  very  celebrated  case  of  the  People  vs.  CroswelP* 
makes  clear  one  aspect  of  the  free  speech  issue.  It  will  be 
remembered  and  shown  hereafter  that  Milton,  Luther, 
Roger  Williams,  Thomas  Jefferson  and  their  adherents 
demanded  in  the  interests  of  free  speech  that  the  test  of 
the  psychologic  tendency  to  promote  disorder  should  be 
abolished,  and  that  only  actual  disorder  should  be  pun- 
ished. This  of  course  was  in  opposition  to  the  view 
promulgated  by  the  English  courts  generally  and  sum- 
marized by  Blackstone.  It  will  be  interesting  to  under- 
stand Justice  Kent's  attitude  upon  that  issue,  because  we 
can  then  know  best  how  to  value  his  opinion  in  the  Rug- 
gles case,  as  an  authority  on  constitutional  interpreta- 
tion. 

The  issue  in  the  Croswell  case  was  the  right  in  certain 
libels  to  publish  with  impunity  truth,  with  good  motives 
and  for  justifiable  ends,  and,  as  inseparably  associated 

"3  Johnson's  Cases,  337. 


RUGGLES  CASE  OVERRULED.  67 

with  this  the  right  of  the  jury  to  pass  upon  the  intent 
and  psychologic  tendency.  These  rights  were  upheld  by 
Justice  Kent  in  an  opinion  which  took  a  wide  range.  Let 
us  study  his  words  upon  freedom  of  utterance. 

Kent  for  Seditious  Libel  Laws. 

He  first  quotes  Lord  Camden  as  saying :  "A  paper  that 
tended  to  excite  sedition  was  libelous."  And  a  discussion, 
with  that  thesis,  Justice  Kent  called  "a  vigorous  and 
eloquent  defense  of  the  freedom  of  the  press."  I  should 
rather  call  it  a  vigorous  and  eloquent  misapplication  of 
the  words  "freedom  of  the  press"  to  justify  the  English 
system  of  censorship  of  the  press. 

Further  on,  Justice  Kent  comments  on  the  Virginia 
Resolution  on  tolerance,  and  he  uses  this  language: 
"I  am  far  from  intending  that  these  authorities  mean,  by 
the  freedom  of  the  press,  a  press  wholly  beyond  the 
reach  of  the  law,  for  this  would  be  emphatically  Pan- 
dora's box,  the  source  of  every  evil.  And  yet  the  house 
of  delegates,  in  Virginia,  by  their  resolution  of  the  7th 
January,  1800,  and  which  appears  to  have  been  intended 
for  benefit  and  instruction  of  the  Union,  came  forward 
as  the  advocates  of  a  press  totally  unshackled,  and  declare, 
in  so  many  words,  that  *the  baneful  tendency  of  the  sedi- 
tion act  was  but  little  diminished  by  the  privilege  of  giving 
in  evidence  the  truth  of  the  matter  contained  in  political 
writings.'  They  seem  also  to  consider  it  as  the  exercise 
of  a  pernicious  influence,  and  as  striking  at  the  root  of 
free  discussion,  to  punish,  even  for  a  false  and  malicious 
writing,  published  with  intent  to  defame  those  who  ad- 
minister the  government.  If  this  doctrine  was  to  prevail^ 
the  press  would  become  a  pest,  and  destroy  the  public 
morals.  Against  such  a  commentary  upon  the  freedom 
of  the  American  press,  I  beg  leave  to  enter  my  protest. 
The  founders  of  our  governments  were  too  wise  and  too 
just,  ever  to  have  intended,  by  the  freedom  of  the  press, 
a  right  to  circulate  falsehood  as  well  as  truth,  or  that  the 
press  sliould  be  the  lawful  vehicle  of  malicious  defama- 
tion, or  an  engine  for  evil  and  designing  men,  to  cherish, 
for   mischievous   purposes    Sedition,   irreligion   and   im- 


68  BLASPHEMY. 


purity.  Such  an  abuse  of  the  press  would  be  incompati- 
ble with  the  existence  and  good  order  of  civil  society.  The 
true  rule  of  law  is,  that  the  intent  and  tendency  of  the 
publication  is,  in  every  instance,  to  be  the  substantial  in- 
quiry on  the  trial,  and  that  the  truth  is  adrmssihle  in  evi- 
dence^ to  explam  that  intent ^  and  not  in  every  instance  to 
justify  it." 

Jefferson  and  Nevt  York  Against  Kent. 

Here,  then,  we  have  a  clean-cut  issue  between  the  views 
of  Jefferson  and  Kent  on  the  rightful  limits  of  tolera- 
tion. We  have  by  common  consent  disapproved  of  Jus- 
tice Kent's  opinion  about  seditious  libel  and  none  of  the 
calamities  which  he  prophesied  have  come  to  pass.  Before 
that  the  people  of  New  York,  in  the  Convention  of  1788 
had,  according  to  Kent,^^  "declared  unanimously  that  the 
freedom  of  the  press  was  a  right  which  could  not  be 
abridged  or  violated."  This  convention  was  considering 
matters  of  Federal  concern,  and,  while  it  expressed  the 
sentiments  of  the  people  of  New  York,  it  had  no  authority 
to  bind  the  N.  Y.  Court.  Therefore  Justice  Kent  even 
went  so  far  as  to  ignore  it  entirely  in  the  Kuggles  case, 
where  it  would  still  have  shed  some  light  on  the  probable 
meaning  of  the  constitutional  provisions  for  a  separation 
of  church  and  state  which  he  had  under  consideration. 
The  same  might  be  said  of  the  election  of  Jefferson  on  the 
issue  of  his  opposition  to  the  Alien  and  Sedition  Law. 

Since  the  Croswell  decision,  the  United  States  Supreme 
Court^^  upheld  Jefferson,  and  by  that  act  disavowed  Jus- 
tice Kent  as  an  authority  on  the  limits  of  religious  liberty. 
In  the  Reynolds  case  the  Court  approvingly  quotes  Jef- 
ferson's conception,  of  which  Justice  Kent  had  disap- 
proved. 

Furthermore,  the  people  of  New  York  also  overruled  Mr. 
Justice  Kent  in  their  Constitutional  Convention  of  1821. 
Justice  Kent  was  a  distinguished  member  of  that  Conven- 
tion, and  opposed  the  free  speech  clause  when  it  came  up 

for  adoption.     The  vote  was  97  for  such  a  provision ;  Jus- 

___ 

^•^In  U.  S.  V.  Reynolds,  98  U.  S.  163. 


RUGGLES  CASE  OVERRULED.  69 

tice  Kent  and  eight  others  voted  against  it.^^  This  consti- 
tutional guarantee  was  necessary  to  annul  the  restrictive 
effect  of  Justice  Kent's  decisions  in  the  Ruggles  case,  and 
the  inconclusive  result  of  the  decision  in  the  Croswell 
case.  If  Justice  Kent  had  expressed  a  different  view  about 
existing  constitutional  provisions  in  relation  to  religious 
liberty,  there  would  have  been  one  less  need  for  the  free 
speech  clause  adopted  in  the  Constitution  of  1821. 

After  the  Constitution  of  1821. 

The  following  is  the  opinion  of  Judge  William  Jay,  as 
delivered  to  the  Grand  Jury  in  Westchester  County,  New 
York,  after  the  addition  of  the  free  speech  amendment  to 
the  New  York  Constitution.  This  shows  clearly  a  con- 
temporary view  of  the  meaning  of  free  speech  and  of  the 
abuse  of  it  as  held  by  a  friend  of  this  constitutional  pro- 
vision. Justice  Jay  was  one  of  the  conspicuous  orna- 
ments of  the  judicial  bench  of  his  time.  His  brother, 
Peter  Jay,  was  a  member  of  the  Constitutional  Convention 
of  1821  which  adopted  the  free  speech  amendment,  and 
one  of  those  who  voted  for  it  and  against  Justice  Kent. 
Both  were  sons  of  John  Jay.^^  Our  libraries  still  contain 
evidences  of  William  Jay's  efficiency  as  a  libertarian 
pamphleteer. 

It  is  especially  desired  to  point  out  that,  in  effect.  Jus- 
tice Jay  limits  "the  abuse  of  that  right"  (of  freedom  of 
the  press)  to  personal  libels  when  actual  injury  results, 
and  then  only  in  those  cases  where  there  is  not  truth,  good 
motives,  and  justifiable  ends.  I  say  that  it  is  the  effect  of 
the  language  of  the  following  opinion,  because  manifestly 
truth  cannot  be  made  an  issue  of  fact  in  those  impersonal 
discussions  which  deal  with  problematical,  speculative 
and  abstract  theories  about  government.  Still  more  con- 
spicuously is  this  true  when  we  are  dealing  with  the 
metaphysical  issues  of  religion.  In  such  matters  we  do 
not  have  such  objective  standards  of  judgment  as  form 
proper  evidence  in  courts  of  law.  Therefore,  in  such  im- 
personal matters  the  issue  of  truth  must  be  irrelevant. 

"Journal  of  the  Convention,  pp.  275-6. 
"Appleton's  Cyclo.  Amer.  Biog.,  v.  3,  p.  411. 


70  BLASPHEMY. 


Judge  Jay  on  Free  Speech. 

Justice  Jay's  charge  to  the  jury  was  as  follows: 
"The  preamble  of  our  State  Constitution  declares :  'We 
The  People  of  the  State  of  New  York,  do  establish  this 
Constitution.'  The  Constitution  thus  established,  ordains 
that  'every  citizen  may  freely  speak,  write  and  publish  his 
sentiments  on  all  subjects,  being  responsible  for  the  abuse 
of  that  right;  and  no  laic  shall  he  passed  to  restrain  or 
abridge  the  liberty  of  speech  or  of  the  press/  The  Consti- 
tution explains  what  it  means  by  the  citizens  being  re- 
sponsible for  the  abuse  of  this  most  inestimable  right,  by 
providing  that  no  man  shall  be  convicted  by  a  jury  for  a 
libel  in  thus  speaking,  writing  and  publishing  his  senti- 
ments on  any  subject,  provided  the  jury  shall  be  satisfied 
that  the  matter  charged  as  libelous  is  true,  and  was  pub- 
lished with  good  motives,  and  for  justifiable  ends.  It  is 
therefore  evident  that  a  citizen  of  New  York  is  responsible 
for  speaking,  writing  and  publishing  his  sentiments  only 
to  a  jury  of  this  country,  and  to  no  other  men  under 
heaven.  This  guaranty  of  freedom  of  discussion  which  the 
people  of  this  state  have  given  to  every  citizen,  extends 
equally  to  religious  and  political  topics.  And  it  is  im- 
possible to  conceive  any  subject  lohich  we  may  not  con- 
stitutionally discuss.  The  right  is  sacred,  and  no  indi- 
viduals whether  magistrates  or  others  can  interfere,  to 
prevent  its  exercise.  Hence,  infidels  and  Christians,  and 
politicians  of  every  name  and  character,  have  an  equal 
and  undoubted  right  to  publish  their  sentiments,  and  to 
endeavor  to  make  converts  to  them.  Of  the  abuse  of  this 
right,  Grand  Juries  are  in  the  first  instance  the  only  judges, 
and  courts  and  juries  are  the  only  persons  to  whom  the 
people  have  delegated  the  power  of  punishing  it.  Even  the 
legislature  cannot  meddle  with  this  right,  and  any  law  that 
might  be  passed  to  abridge  in  tlie  slightest  degree  the  free- 
dom of  speech  or  of  the  press,  or  to  shield  any  one  subject 
from  discussion,  would  be  utterly  null  and  void:  and  it 
would  be  the  duty  of  every  genuine  republican,  to  resist, 
with  energy  and  decision,  so  palpable  a  violation  of  the 
constitution,  so  audacious  an  outrage  on  the  declared  will 
of  the  people." 


RUGGLES  CASE  OVERRULED.  71 

This  statement  rested  at  first  upon  a  mere  newspaper 
report.  Abner  Kneeland,  in  1835,  used  this  charge  in  his 
own  defence.  So  he  wrote  to  Judge  Jay  and  received  a 
letter  confirming  the  accuracy  of  this  report,  as  expressive 
of  his  sentiments. ^^ 

RuGGLEs  Decision  Obsolete  Error. 

All  the  circumstances  herein  narrated  combine  to  show 
that  the  Ruggles  decision  was  error  at  the  time  of  its 
rendition,  and  therefore  has  been  overruled  in  Kentucky 
and  authoritatively  repudiated  in  New  York,  by  the  con- 
stitutional convention,  and  the  contemporaneous  inter- 
pretation of  the  courts;  and  its  fundamental  hostility  to 
the  conception  of  Thomas  Jefferson  on  this  subject,  has 
been  decisively  repudiated  by  the  Supreme  Court  of  the 
United  States.  In  consequence  of  all  this,  and  of  the  de- 
fective intellectual  processes  which  entered  into  the  rea- 
soning, and  induced  the  judge  to  ignore  the  most  essential 
factors  of  his  problem,  it  is  believed  that  the  decision  in 
People  V.  Ruggles  is  not  deserving  of  any  influence  in  any 
case  involving  a  problem  of  our  constitutional  religious 
liberty. 

Kent  himself  seemed  to  recognize  in  later  years  that  he 
was  not  in  harmony  with  the  prevailing  American  idea  of 
intellectual  liberty.  In  his  Commentaries  he  laments  that 
"the  tendency  of  measures  in  this  country  has  been  to 
relax  too  far  the  vigilance  with  which  the  common  law 
surrounded  and  guarded  character,  while  we  are  animated 
with  a  generous  anxiety  to  maintain  freedom  of  discus- 
sion." Furthermore,  in  the  entire  four  volumes  of  his 
Commentaries  (6th  Edit.)  he  never  once  refers  to  the  de- 
cision in  People  v.  Ruggles. 

"  Kneeland's  Speeches,  Preface  to  Speech  of  Abner  Kneeland,  Deliv- 
ered before  The  Full  Bench  of  Judges  of  The  SUPREME  COURT 
In  His  Own  Defense,  for  the  alleged  crime  of  BLASPHEMY.  Law 
Term,  March  8,  1836.    pp.  vi-vii. 


yiL 

KNEELAND  DECISION  CRITICISED. 

In  upholding  the  old  Colonial  statute  the  Prosecutor  re- 
lies largely  upon  the  case  Com.  v.  Kneeland.^  Hence  the 
present  and  future  importance  of  a  critical  review  of  that 
decision.  Perhaps  we  are  now  far  enough  removed  from 
the  theocratic  regime  of  early  Massachusetts  to  be  able  to 
estimate  that  opinion  at  its  true  worth. 

Case  Inadequately  Argued. 

In  the  opinion  of  the  majority  it  is  said:  "It  is  perhaps 
a  subject  of  regret  that  the  cause  was  argued  by  the  de- 
fendant 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  Court  may  not  have  been  presented  in 
the  manner  adapted  to  a  clear  and  satisfactory  statement 
and  discussion  of  them."^ 

In  the  dissenting  opinion  occurs  this  similar  complaint: 
"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  consti- 
tutional right  to  manage  his  own  cause,  and  being  not  only 
unused  to  technical  forms,  and  the  mode  of  conducting 
trials,  but  unversed  in  some  of  the  principles  and  distinc- 
tions of  criminal  law,  and  the  authorities  by  which  they 
are  supported,  has  been  unable  to  render  us  all  the  aid  in 
raising  and  discussing  the  points  essential  to  his  defence, 
which  might  have  been  derived  from  the  learning  and  ex- 
perience of  a  professonal  advocate/'^ 

'37  Mass.  (20  Pick)  R.  p.  206,  1833-1836. 
»p.  212. 
»p.  225-226. 

72 


KNEELAND   DECISION    CRITICISED.  73 

These  quotations  indicate  a  distrust  which  should  warn 
us  against  a  too  hasty  acceptance  of  the  result.  Inad- 
equate argument  is  a  poor  corrective  for  emotional  predis- 
positions, if  such  existed,  which  is  always  quite  probable 
where  questions  of  religion  were  involved  in  Boston  in 
1833  to  1836.  When  our  analysis  of  the  decision  shall 
have  been  completed,  perhaps  even  Mr.  Justice  Shaw  may 
be  presumed  to  desire  a  reconsideration. 

RuGGLEs  Decision  Followed. 

The  only  judicial  precedent  approximately  in  point 
upon  the  constitutional  questions  involved  was  the  deci- 
sion in  People  v.  Ruggles.^  It  has  already  been  shown  that 
the  Ruggles  decision  ignored  those  factors  that  were  most 
essential  to  a  correct  conclusion.  The  Ruggles  case  is  not 
analagous  to  the  Massachusetts  case,  because  at  that  time 
the  New  York  Constitution  had  not  guaranteed  freedom 
of  the  press ;  and,  furthermore,  its  basic  theories  have  been 
over-ruled  by  subsequent  decisions  and  by  constitutional 
amendment.  In  the  light  of  the  critical  review  of  the  Rug- 
gles case  that  has  been  made,  it  ceases  to  be  of  any  value, 
either  as  an  authority,  or  even  as  an  illuminating  prece- 
dent. Thus  the  Kneeland  case  must  stand  or  fall  upon  the 
merits  of  its  own  reasoning. 

Blackstone  Erroneously  Followed. 

Kneeland's  claim,  that  he  was  protected  by  the  free 
press  clause  of  the  Massachusetts  Constitution,  was  met 
in  several  ways.  The  first  answer  of  the  Court  expresses 
the  sentiment  of  Blackstone,  without  citing  him  as  an  au- 
thority. The  Court  says :  "The  obvious  intent  of  this  pro- 
vision was  to  prevent  the  enactment  of  license  laws,  or 
other  direct  restraints  upon  publication,  leaving  indi- 
viduals at  liberty  to  print,  without  the  previous  permis- 
sion of  any  officer  of  government,  subject  to  responsibility 
for  the  matter  printed."^ 

Upon   critical   examination,   the  similar  sentiment  of 

* 8  John.  (N.  Y.)  R.  225. 

•p.  219.     See:  Blackstone  as  hereinafter  reviewed. 


74  BLASPHEMY. 


Blackstone  will  be  seen  to  have  no  application  to  the  con- 
struction of  American  constitutional  guarantees.  Black- 
stone,  in  the  language  referred  to,  only  recorded  the  fact 
of  English  juridical  history  as  related  to  prosecutions  for 
libels,  and  without  intending  to  declare  a  general  principle 
for  differentiatng  between  an  ideal  liberty  of  the  press  and 
its  opposite.  Indeed,  Blackstone  never  dreamed  of  at- 
tempting such  a  thing,  for  he  heartily  approved  of  the  ex- 
isting restrictive  measures,  as  any  other  good  Tory  of  his 
time  would  do.  He  complained  only  of  the  uncertainty  of 
the  criteria  of  guilt  in  some  crimes  against  religion.  Man- 
ifestly, our  American  constitutions  were  neither  designed 
nor  needed,  if  the  purpose  had  been  to  perpetuate  crimes 
against  religion,  and  their  ex  post  facto  punishment. 

Objects  of  Cue  Constitutions. 

Anyone,  honestly  endeavoring  to  give  to  our  constitu- 
tional guarantees  of  liberty  a  sympathetic  understanding, 
must  see  that  a  dominant  object  of  them  was  to  get  away 
from  the  then  existing  English  system,  and  the  previous 
Colonial  methods,  of  penalizing  mere  psychologic  offenses : 
that  is  to  say,  our  forebears  were  seeking  to  overturn  the 
English  practice,  as  reported  by  Blackstone,  in  favor  of 
that  larger  intellectual  freedom  advocated  by  his  oppo- 
nents. The  Massachusetts  Court  did  not  consider  this 
historical  method  of  interpreting  the  Constitution  and  is 
therefore  undecisive  and  of  little  importance  as  a  prece- 
dent. Furthermore,  the  Kneeland  decision  entirely  ig- 
nores the  opposition  that  had  existed  to  having  a  mere  spec- 
ulation about  psychologic  tendency  used  as  the  criteria  of 
guilt,  instead  of  making  guilt  depend  upon  actually  ascer- 
tained material  injury. 

Kneeland  on  Liberty  of  Press. 

Chief  Justice  Shaw  states  Kneeland's  contention  as  to 
the  meaning  of  freedom  of-  the  press  in  these  words: 
"Every  act,  however  injurious  or  criminal,  which  can  be 
committed  by  the  use  of  language,  may  be  committed  with 
impunity  if  such  language  is  printed.  Not  only,  therefore, 
would  the  [constitutional]   article  in  question  become  a 


KNEELAND    DECISION    CRITICISED. 


75 


f- 


general  license  for  scandal,  calumny  and  falsehood  against 
indivduals,  institutions  and  governments,  in  the  form  of 
publication,  a  form  in  which  it  would  be  the  most  injurous, 
and  most  speedily,  certainly  and  extensively  diffused ;  but 
all  incitation  to  treason,  assassination,  and  all  other 
crimes,  however  atrocious,  if  conveyed  in  printed  lan- 
guage, would  be  dispunishable.  A  mere  statement  of  the 
direct  and  obvious  consequences  of  the  doctrine  contended 
for,  shows  that  it  cannot  be  sound.'^^ 

It  is  fair  to  assume  that  this  little  explosion  of  "right- 
eous indignation"  would  not  have  occurred  if  an  adequate 
and  discriminating  theory  of  liberty  of  the  press  had  been 
presented,  such  as  an  historical  research  would  have  sug- 
gested. The  remarks  of  the  Chief  Justice  convey  an  im- 
pression of  considerable  feeling,  and  a  corresponding  and 
consequent  confusion  of  ideas. 

Another  View  of  Freedom  of  Press. 

If  it  had  been  suggested  to  the  Court  that  freedom  of 
speech  and  the  press  were  primarily  designed  to  protect 
the  public  in  its  right  to  hear  and  read  everything  that 
concerns  it,  and  which  any  one  is  willing  to  offer,  then  a 
line  might  perhaps  have  been  drawn  between  a  personal 
libel  upon  a  purely  private  citizen,  and  a  defamatory 
statement  against  a  candidate  for  public  office,  which  de- 
famation related  only  to  matters  directly  and  immediately 
affecting  his  fitness  as  a  public  servant.'^  Such  a  discrim- 
inating view  would  have  suggested  a  like  difference  be- 
tween the  personal  libel  upon  a  mere  private  citizen,  and 
every  abstract  discussion  of  religious,  ethical  and  govern- 
mental problems,  including  seditious  utterances.  The 
English  Courts  characterized  this  distinction  by  the  words 
"private  libels"  and  "public  libels."  From  this  viewpoint 
the  Judge  might  have  avoided  all  the  imaginary  horrors 
which  seem  to  have  frightened  him,  and  yet  he  might  have 
upheld  Kneeland's  contention,  so  far  as  to  hold  the  blas- 
phemy statute  unconstitutional. 

•p.  219. 

'See:  151  Mass.  R.  54. 


76  BLASPHEMY. 


Again,  if  a  discriminating  argument  had  been  made, 
pointing  out  the  difference  between  an  utterance  which 
had  resulted  in  an  ascertained  actual  and  material  injury, 
thus  affecting  property  rights  or  bodily  personal  injury, 
and  a  speech  wholly  void  of  resultant  material  harm,  then, 
no  matter  upon  what  subject,  or  in  what  vocabulary  or 
literary  style  it  was  expressed,  the  •  Court  could  have 
reached  a  different  conclusion,  without  converting  all  of 
its  imaginary  fears  into  actual  experiences.  Certainly,  it 
would  not  have  put  all  personal  libel,  blasphemous  and 
seditious  utterances  in  the  same  category  of  public  con- 
cern, and  that  wholly  irrespective  of  differences  in  con- 
sequences. 

Ignored  Historic  Factors. 

Furthermore,  if  the  Judges  had  been  enlightened  as  to 
the  controversy  between  the  Puritan  theocrats  of  the  early 
witch-burning  Massachusetts  type,  and  the  Puritan  liber- 
tarians of  the  Ehode  Island  type,  they  might  not  have  been 
so  much  horrified  at  the  thought  of  opening  the  flood-gates 
of  blasphemy,  but  would  have  considered  that  the  public 
had  a  right  to  know,  not  only  what  scholars  were  think- 
ing about  religion,  but  also  what  the  less  enlightened  were 
thinking  and  feeling  about  it.  The  Constitution  guaran- 
teed human  rights  to  all,  not  merely  free  speech  for  the 
learned  and  the  polite. 

Then  again,  if  the  Court's  attention  had  been  called  to 
the  historic  controversy  for  free  speech  as  to  government, 
and  to  the  opinion  upon  that  subject  by  the  Continental 
Congress ;  and  if  the  judges  had  read  some  of  the  speeches 
of  the  Massachusetts  patriots  before  the  American  Kevo- 
lution,  and  Jefferson's  attitude  toward  rebellion  and  sedi- 
tion^; if  these  matters,  and  Jefferson's  opinion  on  tolera- 
tion had  been  given  their  due  weight  as  authoritative  on 
the  meaning  of  free  speech^,  then  it  is  hardly  likely  that 
the  Judges  could  have  been  so  shocked  at  the  thought  of  a 
possible  unpunished  seditious  speech.    Even  a  study  of  the 

'  See :  Methods  of  Constitutional  Construction. 
'  Reynolds  v.  U.  S.,  98  U.  S.  163. 


KNEELAND   DECISION    CRITICISED.  77 


Alien  and  Sedition  Law  and  its  fruits  would  have  given  a 
cooling  ligiit.^^ 

Synthetic  Method  Ignored. 

If,  in  addition  to  this  historical  data,  used  as  a  means 
of  constitutional  interpretation,  the  Court  had  viewed  the 
Constitution  as  a  whole,  and,  by  a  synthetic  view  of  the 
several  related  parts,  had  endeavored  to  make  each  pro- 
vision contribute  something  toward  a  better  understand- 
ing of  the  meaning  behind  the  words  of  every  other  part  of 
the  Bill  of  Rights,  then  again  a  different  result  might 
have  been  attained.  These  are  commonplaces  in  statutory 
and  constitutional  construction,  and  yet  this  method  was 
not  used.  We  may  wonder  why.  Mr.  Justice  Shaw  has  a 
de>servedly  high  reputation  for  possessing  an  acute  intel- 
lect. What  precluded  him  from  using  it  in  the  manner 
indicated?  Is  it  possible  that  he  was  dominated  by  un- 
conscious religious  prejudices?  Let  us  examine  a  little 
further. 

Time  Limit  for  Open-mindedness. 

Mr.  Justice  Shaw  says:  "It  seems  now  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  be- 
lieved, until  this  prosecution,  has  never  been  doubted, 
thongh  there  have  been  many  'prosecutions  and  convictions 
under  it/'^^ 

It  was  not  altogether  in  harmony  with  legal  reasoning 
for  the  Court  even  to  suggest  that  Kneeland  might  be 
"somewhat  too  late''  to  urge  the  claim  of  a  constitutional 
personal  liberty,  merely  because  other  blasphemers  were 
too  ignorant  to  make  the  claim,  or  too  poor  to  have  it 
properly  defended.  He  points  to  no  Massachusetts  statute 
of  limitation  which  prohibits  a  judge  from  bringing  an 
open  mind  to  the  discussion  of  problems  of  personal  lib- 
erty, that  have  never  before  been  adjudicated  in  a  court  of 
last  resort ;  neither  is  there  a  statute  of  limitations  against 

"  See :  Methods  of  Constitutional  Construction, 
"p.  217. 


78  BLASPHEMY. 


the  open-minded  consideration  of  new  reasoning  upon 
questions  already  determined  in  other  cases,  especially  if 
no  property  rights  are  involved  through  long  acquiescence. 
A  judge  who,  in  face  of  such  a  problem,  invokes  the  argu- 
ment of  time  limitation,  arouses  the  suspicion  that  he  is 
only  intellectualizing  an  impatience  which  is  the  product 
of  passion  and  not  of  understanding.  I  have  already 
hinted  a  distinction  between  a  problem  of  purely  personal 
freedom,  and  one  where  a  long  acquiescence  in  a  partic- 
ular construction  of  law,  had  determined  great  property 
rights,  which  would  be  disturbed  by  a  new  interpretation. 
Even  then  there  would  be  no  conclusiveness  resulting  from 
habit. 

The  Kneeland  Decision  Ignored. 

Kneeland  republished  his  "blasphemous"  articles  after 
his  trial.  Others  publicly  posted  the  blasphemous  phrase 
for  which  the  conviction  was  sustained.  Still  others  pub- 
lished similar  "blasphemies'^  in  defiance  of  Justice  Shaw's 
decision. ^2  All  this  occurred  right  in  Boston,  and  no 
prosecution  followed.  If  we  were  to  follow  Justice  Shaw's 
process  of  reasoning,  it  might  be  said  that  in  Massachu- 
setts, for  nearly  a  century  since  the  Kneeland  prosecution, 
blasphemy  has  been  published  in  open  defiance  of  the 
statute  and  Justice  Shaw's  decision  without  judicial  ac- 
tion, which  proved  that  the  community  generally,  and  the 
courts,  all  acquiesced  in  the  belief  that  Justice  Shaw's  de- 
cision was  not  the  law,  and  that  the  blasphemy  statutes 
are  unconstitutional.  It  is  now  therefore  too  late  to  en- 
force the  statute  on  the  claims  that  it  is  valid. 

Eeligious  Liberty  in  Massachusetts. 

If  the  "many  prosecutions  and  convictions"  referred  to 
by  Justice  Shaw  really  existed,  they  may  have  aided  the 
people  to  see  that  they  still  had  too  much  union  of  church 
and  state,  to  insure  a  proper  interpretation  of  guarantees 
for  intellectual  freedom.  The  Massachusetts  Constitution 
of  1780  made  provision  for  the  "support  and  maintenance 

"See:  A  Review  of  Trial,  etc.,  of  Abner  Kneeland.    Also:  An  Intro- 
duction to  the  Defence  of  Abner  Kneeland. 


KNEELAND   DECISION    CRITICISED.  79 

of  public  Protestant  teachers  of  piety,  religion,  and  mo- 
rality." It  also  provided  that  "every  denomination  of 
Christians  demeaning  themselves  peaceably  ♦  ♦  ♦ 
shall  be  equally  under  the  protection  of  the  law,  and  no 
subordination  of  any  one  sect  or  denomination  to  another 
shall  ever  be  established  by  law."^^  It  will  be  observed 
that  this  Constitution  did  not  prohibit  privileges  to  a 
group  of  Protestants  as  against  the  Catholics  or  against 
such  Protestants  as  they  chose  to  designate  as  unchristian. 
Some  experimentation,  and  the  active  agitation  of  the 
Baptists,  Unitarians,  Universalists  and  Quakers,  evi- 
dently convinced  the  people  of  Massachusetts  that  the  sep- 
aration of  church  and  state  needed  to  be  more  complete,  if 
intellectual  freedom  were  to  be  actually  achieved.  The 
sixth  and  eleventh  amendments  of  the  Massachusetts  Con- 
stitution were  obviously  the  product  of  a  desire  to  eliminate 
discriminations,  at  least  against  Quakers,  Catholics  and 
non-Christian  religionists.  Article  11  became  effective  on 
November  11,  1833.  Kneeland's  "crime"  was  committed 
the  next  month.  If  there  really  had  been  any  such  nu- 
merous convictions  as  Justice  Shaw  asserts,  it  may  have 
been  that  Kneeland  felt  that  this  last  more  complete  sep- 
aration of  church  and  state  was  the  people's  way  of  over- 
ruling the  former  (hypothetical)  decisions.  The  prior  ex- 
istent union  of  the  State  and  Protestantism  may  formerly 
have  induced  an  acquiescence  in  blasphemy  prosecutions, 
which  would  naturally  disappear  with  the  coming  of  the 
constitutional  amendments  just  referred  to.  At  best,  it 
was  an  unfortunate  oversight  that  Justice  Shaw  should 
not  have  taken  these  changes  into  account.  At  worst,  it 
looks  like  the  product  of  his  religious  prejudice. 

Shawns  Error  of  Fact. 

Justice  Shaw,  in  the  passage  already  quoted,  says  that 
this  blasphemy  statute  "has  been  repeatedly  enforced," 
and  that  there  "have  been  many  prosecutions  and  convic- 
tions under  it."  My  suspicions  were  aroused  by  the  total 
absence  of  detailed  information.     I  have  just  read:  "Re- 

''  Mass.  Declaration  of  Rights,  Art.  3. 


80  BLASPHEMY. 


port  of  the  Argument  of  the  Attorney  of  the  Common- 
wealth at  the  Trial  of  Abner  Kneeland,"  to  see  upon  what 
facts  Judge  Shaw's  statement  might  be  justified.  On  page 
48  the  Prosecutor  tells  of  one  known  prosecution,  and 
rumors  of  only  one  other  of  which  any  particulars  were 
given,  and  then  only  the  name  of  the  locality.  The  state- 
ment of  the  one  known  case  is  justified  by  a  reference  to 
vol.  VI,  Dane's  Abridgement  and  Digest  of  American  Law, 
p.  667.  This  publication  is  dated  1823.  Turning  to  the 
page  indicated,  we  find  only  this  brief  reference:  "Prose- 
cutions under  these  laws  [creating  crimes  against  re- 
ligion] have  been  very  rare.  One  Avery  was  indicted  in 
the  Supreme  Judicial  Court  for  this  crime  of  blasphemy, 
on  the  last  mentioned  statutes  [in  1795],  and  sentenced  to 
be  set  on  the  gallows  one  hour,  and  to  be  whipped  twenty 
stripes.  No  other  prosecution  on  this  statute  has  been 
found/'  This  covers  from  1782  to  1823,  a  period  of  41 
years. 

In  the  face  of  this  record,  what  shall  we  think  of  Jus- 
tice Shaw's  statement  that  this  statute  "has  been  re- 
peatedly enforced,"  and  that  "there  have  been  many  prose- 
cutions and  convictions  under  it"?  We  may  at  least  sus- 
pect that  upon  the  subject  of  religion  the  learned  justice 
was  moved  by  some  very  intense  feelings  which  obscured 
the  usual  clarity  of  his  vision.  If  this  suspicion  was  war- 
ranted by  the  fact,  then  we  see  in  it  that  which  made  Jus- 
tice Shaw  desire  that  Kneeland  be  estopped  from  requir- 
ing the  Court  to  be  open-minded  about  a  question  of  con- 
stitutional and  personal  liberty,  which  had  never  before 
been  presented.  The  learned  justice  convinces  us  that  he 
is  quite  human,  like  the  rest  of  us,  and  therefore  when 
zeal  speaks,  a  rumor  becomes  a  multitude. 

Colonial  Blasphemy  Laws. 

The  Massachusetts  colonists  at  first  legally  established 
a  strictly  sectarian  theology.  In  harmony  therewith,  the 
first  blasphemy  statute  (1646)  protected  the  reputation  of 
"the  true  God,"  only.  For  attempting  to  impair  that  rep- 
utation, no  matter  how  futile  the  attempt  might  be,  or  for 
any  other  blasphemy,  those  loving  followers  of  a  loving 


KNEELAND   DECISION    CRITICISED.  81 

God  decreed  that  the  recreant  "shall  be  put  to  death,"  and 
the  statute  cited  Levit.  xxiv,  15,  16. 

By  the  year  1697  these  good  people  had  been  so  far  led 
astray,  by  the  satanic  influence  of  such  as  Roger  Williams, 
that  they  were  willing  to  turn  their  backs  on  Leviticus, 
and  spare  the  life,  even  of  a  blasphemer.  So,  from  the 
mercy  of  their  heretical  souls,  came  an  amendment  to  the 
statute,  changing  the  punishment  to  imprisonment  not  ex- 
ceeding six  months,  by  pillory,  whipping,  by  horing 
through  the  tongue  with  a  red  hot  iron,  or  setting  on  the 
gallows,  etc. ;  provided  that  no  more  tha/n  two  of  said  pun- 
ishments should  he  inflicted  for  one  and  the  same  fact. 
Thus  amended  and  humanized,  according  to  the  dictates 
of  Puritanic  love,  the  statute  appears  to  have  remained 
until  1782.1^  Under  the  latter  amendment  Kneeland  was 
prosecuted. 

The  Influence  of  Dissenters. 

The  Colonial  theocracy  was  frankly  sectarian.  Under 
the  contaminating  and  depraving  influence  of  Roger  Wil- 
liams, the  Quakers,  Universalists,  Baptists  and  Uni- 
tarians, the  orthodox  Puritan  mind  became  polluted.  By 
the  time  of  the  adoption  of  the  Constitution  of  1780  it  had 
become  a  "Protestant"  Commonwealth,  thus  broadening 
out  far  enough  to  recognize  at  least  some  rights  of  some  of 
those  who  were  formerly  regarded  as  dangerous  heretics 
deserving  the  death  penalty.  (Was  it  by  hanging,  stoning 
or  burning?) 

The  polluting  influence  of  the  Baptists  and  Unitarians 
grew  rapidly  under  this  recognition  extended  to  them  in 
an  ung-uarded  moment.  Consequently,  the  Constitutional 
Amendments  of  1820  and  1833  entirely  eliminated  the  sub- 
stance of  the  theocratic  recognition  of  Christianity. 
Probably  as  a  sop  to  the  wounds  of  a  few  remaining  faith- 
ful ones,  the  Constitution  retained  a  harmless  old  homily 
about  Christian  duty,  although  everything  was  done  that 
was  possible  to  preclude  the  enforcement  of  those  "duties" 
by  law.    Of  course,  a  "duty"  without  a  corresponding  en- 

"See  Dane's  Abridgement,  vol.  VI,  p.  6^. 


82  BLASPHEMY. 


forceable  right  is  mere  meaningless  and  idle  rhetoric.  As 
a  judicial  problem,  this  issue  seems  to  resolve  itself  into 
a  question  whether  duties  to  God  shall  be  legally  treated 
as  mere  empty  rhetoric,  or  whether  our  constitutional 
guarantees  for  a  separation  of  church  and  state  and  for 
intellectual  freedom  and  equality,  shall  be  treated  as 
meaningless  and  idle  rhetoric.  Judges  will  choose  accord- 
ing to  their  intelligence.  Justice  Shaw  chose  the  latter,  as 
is  plain,  and  it  is  believed  that  in  his  decision  he  quite  un- 
consciously exhibited  the  motive  therefor. 

Influence  of  Eoger  Williams. 
In  1636  Roger  Williams  was  banished  from  Massachu- 
setts by  a  Court  which  had  already  decided  "that  any  one 
was  worthy  of  banishment  who  should  obstinately  assert 
that  the  civil  magistrate  might  not  intermeddle,  even  to 
stop  a  church  from  apostasy  and  heresay."^^  In  spite  of 
laws  against  everything  unorthodox,  the  ideas  of  Roger 
Williams  were  dominant  in  the  Massachusetts  Constitu- 
tion as  amended  in  1833.  Notwithstanding  this  tremen- 
dous overturning  of  public  opinion,  Mr.  Justice  Shaw,  in 
1834-1836,  sees  in  it  nothing  which  suggests  to  his  mind 
that  the  Constitution  guaranteed  freedom  of  utterance  to 
the  ex-clergyman  and  Pantheist,  Kneeland.  In  all  this 
record  of  extraordinary  intellectual  growth,  he  sees  no 
sign  that  the  framers  of  the  Constitution  desired  to  make 
impossible  a  return  to  the  days  of  burning  witches  and 
hanging  heretics,  or  to  the  days  of  boring  a  blasphemer^s 
tongue  with  a  red  hot  iron.  He  does  not  persuade  us  that 
the  Constitution  fails  to  record  a  growth  from  barbarous 
intolerance,  through  moderation,  to  complete  religious  lib- 
erty. He  only  convinces  us  that  his  own  mind  had  escaped 
very  much  of  the  polluting  influence  of  the  religious  liber- 
tarians. He  evidently  could  not  turn  his  back  on  the  les- 
sons of  his  childhood,  derived  from  a  father  and  grand- 
father both  of  whom  were  ministers  in  the  orthodox  x)erse- 
cuting  church  of  colonial  Massachusetts.^^ 

"Bloody  Tenet  of  Persecution,  p.  xv. 

"  See :    Appleton's  Cyclopedia  of  Amer.  Biog.  v.  5,  p.  487 ;  also :    A 

Sermon   Preached  in   Barnstable  at  the   Ordination  of  Mr.   Oakes 

Shaw.  .  .  by  John  Shaw.     Bost.  1761. 


KNEELAND   DECISION    CRITICISED.  83 

Let  US  look  still  closer  into  the  performances  of  the 
Massachusetts  Colonial  legislature.  This  may  help  us  to 
understand  what  possibilities  Justice  Shaw's  opinion  pro- 
tected, and  what  it  was  that  some  i)eople  thought  they  had 
made  impossible  by  constitutional  provisions. 

Evils  That  Were  Remedied  by  Religious  Liberty. 

In  1646  the  Colonial  legislature  of  Massachusetts 
enacted:  "that  if  any  Christian  within  this  jurisdiction 
shall  go  about  to  subvert  and  destroy  the  Christian  faith 
and  religion,  by  preaching  and  maintaining  any  damnable 
heresies,  as  denying  the  immortality  of  the  soul,  or  resur- 
rection of  the  body,  or  any  sin  to  be  repented  of  in  the  re- 
generate, or  any  evil  done  by  the  outward  man,  to  be  ac- 
counted sins ;  or  shall  affirm  that  we  are  not  justified  by 
His  death  and  righteousness,  but  by  the  perfection  of  our 
own  works;  or  shall  deny  the  morality  of  the  fourth  com- 
mandment; or  shall  openly  condemn  and  oppose  the  bap- 
tising of  infants;  or  shall  purposely  depart  the  congrega- 
tion at  the  administration  of  that  ordinance;  or  shall 
deny  the  order  of  the  magistracy,  or  their  lawful  authority 
to  make  war,  or  to  punish  the  outward  breaches  of  the  first 
table;  or  shall  endeavor  to  seduce  others  to  any  of  the 
errors  or  heresies  above  mentioned;  every  such  person, 
continuing  obstinate  therein,  after  due  means  of  convic- 
tion, shall  be  sentenced  to  banishment."  A  second  offence 
was  punished  with  death  or  banishment. 

The  next  year,  1647,  it  was  enacted:  "That  no  Jesuit 
or  spiritual  or  ecclesiastical  person,"  ordained  by  the  Pope 
or  See  of  Rome,  at  any  time  shall  come  into  this  Colony; 
and  that  if  any  one  was  justly  suspected  of  being  a  Jesuit, 
he  should  be  brought  before  the  magistrates,  and  if  he 
could  not  clear  himself  of  suspicion  [could  not  prove  him- 
self innocent?]  he  was  to  be  committed  to  prison,  or  bound 
to  the  next  court  of  assistants,  to  be  tried  and  proceeded 
with  by  banishment  or  otherwise,  as  the  Court  might 
order.  And  if  such  Jesuit  was  banished,  and  returned, 
his  punishment  was  death."^*^ 

"  Dane's  Abridgement,  vol.  VI,  p.  667-668. 


84  BLASPHEMY. 


Records  of  Persecution. 

One  can  never  secure  an  adequate  picture  of  the  evils 
and  barbarity  of  these  laws  merely  from  reading  the 
statutes.  To  this  must  be  added  a  reading  of  such  books 
as,  George  Bishop's  "New  England  Judged,"  published  in 
London  in  1661.  Therein  he  tells  what  happened  to  the 
Quakers  within  the  four  years  after  their  arrival  in  Mass- 
achusetts. This  included  "cruel  whippings  and  scourg- 
ings,  bonds  and  imprisonment,  beatings  and  chainings, 
starvings  and  huntings,  fines  and  confiscations  of  estates, 
burning  in  the  hand  and  cutting  of  ears,  orders  of  sale  for 
bondmen  and  bondwomen,  banishment  upon  pain  of  death, 
and  putting  to  death  of  some."  Yet,  according  to  Black- 
stone  and  Justice  Shaw,  proper  liberty  of  speech  obtained 
here  because  there  was  no  "previous  restraint,"  against 
Quakers  expressing  themselves. 

According  to  the  same  author,  a  man  was  fined  ten 
pounds  for  merely  having  in  his  possession  a  copy  of  John 
Lilburn's  Resurrection,  and  of  W.  Dusberrie's,  Mighty 
Day  of  the  Lord.  Yet  religious  and  intellectual  liberty  ex- 
isted because  the  publishers  of  these  books  were  not  re- 
strained previous  to  publication. 

Peter  Folger,,  father  in  law  to  Benjamin  Franklin^* 
tells  of  a  man  who  was  put  to  death  in  Massachusetts  be- 
fore 1675  for  saying  that  God's  wrath  would  be  spent  upon 
the  Colonists  if  they  did  not  repeal  their  persecuting  laws. 
There  was  no  law  imposing  a  previous  restraint  to  this  ut- 
terance. The  man  was  only  killed  according  to  law  be- 
cause his  dangerous  and  offensive  speech  was  of  pernicious 
tendency,  and  all  this  was  "necessary  for  the  preservation 
of  peace  and  good  order  of  government  and  religion,  the 
only  solid  foundation  of  civil  liberty."  These  cases,  the 
banishment  of  Roger  Williams,  the  burning  by  order  of  the 
House  of  Commons  of  his  plea  for  toleration,  are  perfect 
illustrations  of  what  is  meant  by  constitutional  liberty 
of  speech  and  press,  but  only  according  to  such  Tories  as 
Mansfield,  Kenyon,  Ellenborough,  Blackstone,  and  Justice 
Shaw. 

"See:  Looking-glass  for  the  Times,  p.  5. 


kneeland  decision  ckiticised.  85 

Shawns  View  of  Intellectual  Liberty. 

All  these  Colonial  laws  our  own  learned  Justice  Shaw 
evidently  considered  to  be  in  entire  harmony  with  consti- 
tutional liberty  of  speech  and  of  the  press,  for  he  has  told 
us  in  this  same  Kneeland  opinion  that  "the  obvious  intent 
of  this  provision  was  to  prevent  licensing  laws,  or  other 
direct  restraints  upon  publication."  Not  to  prevent  ex 
post  facto  punishment!  Not  to  make  impossible  a  repe- 
tition of  Colonial  barbarities !  Of  course  not !  The  teach- 
ings of  his  clerical  father,  perhaps  made  the  thought  un- 
bearable. 

In  a  community  which  had  conducted  burning,  hanging, 
branding  and  maiming  as  part  of  the  "current  amenities 
of  theological  parting,"  Justice  Shaw  saw  no  other  motives 
for  constitutional  guarantees  of  intellectual  freedom,  ex- 
cept to  prevent  previous  restraint.  If  burning  a  man  to 
death,  or  boring  his  tongue  with  a  red  hot  iron,  comes  as 
an  ex  post  facto  punishment  of  expressed  heretical  opin- 
ions, then  perfect  intellectual  liberty  is  maintained.  If^ 
however,  the  life  and  the  tongue  are  saved  whole,  by  a  pre- 
vious restraint  upon  offensive  utterance,  then  only  is  con- 
stitutional freedom  of  utterance  destroyed.  The  corollary 
and  natural  effect  of  Justice  Shaw's  criteria  of  free  speech 
is  that  the  Constitution  was  really  meant  to  keep  alive  and 
protect  the  possibility  of  re-enacting  the  above  laws  of 
Colonial  Massachusetts.  Is  such  an  interpretation  to  be 
followed  in  1917? 

;Some  will  refuse  to  follow  Justice  Shaw  in  his  conclu- 
sions, because  he  shows  no  sign  of  understauding,  or  of 
willingness  to  examine,  previous  controversies  and  the  re- 
sultant intellectual  development  which  had  expressed  it- 
self in  the  Constitution  of  1833.  Likewise  to  some  who, 
upon  such  subjects  of  religious  liberty  are  more  enlight- 
ened than  himself,  he  may  perhaps  appear  to  be  merely 
making  a  special  plea  in  justification  of  seventeenth  cen- 
tury preconceptions.  For  all  of  these  reasons  Justice 
Shaw's  opinion  in  the  Kneeland  case  cannot  be  recognized 
as  of  anv  authoritative  value.    Its  chief  usefulness  lies  in 


86  BLASPHEMY. 


its  exhibition  of  a  weak  spot  in  an  otherwise  great  man. 
Thus  it  may  remind  us  of  the  folly  of  hero-worship. 

Sources  of  Shawns  Predispositions. 

For  two  or  more  generations  Mr.  Justice  Shawns  an- 
cestors had  enjoyed  the  special  privileges  of  ecclesiastical 
aristocrats,  in  an  established  state-church.  For  a  time  he 
and  his  aristocratic  relatives  were  efficient  bulwarks 
against  the  rising  tide  of  democracy.  His  cousin  William 
Smith  Shaw  was  prominently  identified  with  the  "Monthly 
Anthology''  wherein  democratic  conceptions  of  free  speech 
received  vigorous,  tory  criticisms,  not  help.^^  Such  mat- 
ter was  but  an  echo  from  tliat  aversion  to  democratic  free 
speech,  which  found  expression  in  the  Alien  and  Sedition 
Law.  This  reminds  me  to  say  that  he  was  the  private  sec- 
retary to  his  uncle  President  John  Adams,  the  father  of 
that  law.2<> 

Justice  Lemuel  Shaw  has  left  another  record  suggest- 
ing his  fear  or  aversion  of  complete  democracy.  His  con- 
ception of  government  appears  to  have  been  something 
which  governed  the  people  from  above,  not  as  something 
arising  out  of  the  people.  This  I  think  is  shown  by  a 
phrase  in  "A  charge  delivered  to  the  Grand  Jury  for  the 
County  of  Essex,  at  the  Supreme  Judicial  Court  held  at 
Ipswich,  May  term  1832."  There  he  said  that  government 
guards  against  "wild  and  licentious  democracy.''  Those 
who  feel  and  believe  in  a  government  from  out  of  the 
people  will  never  fear  any  democracy,  by  limiting  the  in- 
tellectual liberty  of  any  part  of  it.  Those  judges  who  are 
truly  republican  in  feeling  and  thought  will  hesitate  to 
follow  Mr.  Justice  Shaw's  opinion  in  this  Kneeland   case. 


The  Keourrence  of  Tyranny. 

The  battle  for  intellectual  liberty  is  never  finished,  be- 
cause tyrannous  tendencies  will  never  be  entirely  out- 
grown by  all  of  the  human  family.  With  each  suspension 
of  aggressive  libertarian  work  there  necessarily  comes  into 

"  See :    the  review  of  Tunis  Wortman's,  Treatise  on  Liberty  of  the 
Press,  vol.  3,  p.  544,  Oct,  1806,  when  the  book  was  six  years  old. 
*"  Appleton's  Cyclopedia  of  Amer.  Biog.  v.  5,  p.  487. 


KNEELAND   DECISION    CRITICISED.  87 

being  a  regression  toward  tyrannous  modes  of  dealing 
with  social  problems.  The  signing  of  Magna  Charta  rem- 
edied nothing.  Successive  kings  and  courts  ignored  its 
manifest  purpose.  In  consequence  of  this  it  became  neces- 
sary, with  the  aid  of  more  or  less  of  coercion,  to  secure  over 
thirty  reaflflrmations  and  supplements  to  it. 

The  same  thing  has  occurred  in  New  York  and  Massa- 
chusetts concerning  intellectual  liberty.  Guaranteeing 
such  freedom  in  paper  constitutions  did  not  eliminate  the 
tyrannous  tendencies  of  an  efficient  minority  of  spiritual 
aristocrats.  Those  men  who  in  the  early  days  of  our  Re- 
public became  judges,  as  in  New  York  and  Massachusetts, 
were  very  apt  to  approach  these  problems  of  intellectual 
freedom  with  the  characteristic  timidity  of  the  English 
Tories.  Thus  have  come  the  judicial  annulments  of  our 
charters  of  liberty,  through  the  pretense  of  interpretation. 
This  is  illustrated  in  the  Kneeland  and  the  Ruggles  cases. 
In  consequence  of  this,  additional  amendments  to  the  con- 
stitutions became  necessary,  just  as  in  England  repeated 
affirmations  of  the  Great  Charter  became  necessary.  The 
practical  question  is  whether  now  we  have  got  far  enough 
away  from  the  anti-Republican  states  of  mind,  of  men  Uke 
Justice  Kent  and  Justice  Shaw  to  make  possible  a  syn- 
thetic and  historical  interpretation  of  our  guarantees  of 
liberty  and  thus  achieve  an  over-ruling  of  the  precedent 
created  by  these  judges. 

KNEELAND  CASE  BIBLIOGRAPHY. 

Appeal  to  common  sense  in  behalf  of  the  freedom  of  public  discus- 
sion on  the  late  trial  of  Abner  Kneeland,  Boston,  1834. 

An  introduction  to  the  defense  of  Abner  Kneeland,  charged  with  blas- 
phemy before  the  Municipal  Court,  in  Boston,  Mass.,  at  the  January  term 
in  1834,  by  Abner  Kneeland,  the  defendant.  Boston :  Printed  for  the  pub- 
lisher 1834,  43  p. 

Report  of  the  argument  of  the  attorney  of  the  commonwealth  at  the 
trials  of  Abner  Kneeland,  for  blasphemy,  in  the  Municipal  and  Supreme 
Courts,  in  Boston,  January  and  May,  1834.  (Collected  and  published  at 
the  request  of  some  Christians  of  various  denominations.)  Printed  by 
Beals,  Horner  &  Co.,  1834. 

A  review  of  the  prosecution  against  Abner  Kneeland  for  blasphemy. 
By  a  Cosmopolite,  Boston,  1835.    Z2  p. 

Speech  of  Abner  Kneeland  delivered  before  the  full  bench  of  judges 
of  the  Supreme  Court  in  his  own  defense  for  the  alleged  crime  of  blas- 
phemy. Law  term  March  8,  1836.  Boston:  Published  by  J.  Q.  Adams, 
44  p. 


88 


BLASPHEMY. 


A  speech  delivered  before  the  Municipal  Court  of  the  City  of  Boston 
in  defense  of  Abner  Kneeland  on  an  indictment  for  blasphemy.  January 
term,  1834,  by  Andrew  Dunlap.  Boston.  Printed  for  the  publisher  1834. 
132  p. 

Speech  of  Abner  Kneeland  delivered  before  the  Supreme  Court  of 
the  City  of  Boston  in  his  own  defense  on  an  indictment  for  blasphmy. 
November  term,  1834.  Boston:  Printed  and  published  by  J.  Q.  Adams, 
1834.    32  p. 


XJi^^  ^ 


VIII. 

BLACKSTONE   NO   AUTHORITY 
ON  FREE  SPEECH. 

Judges  are  the  evolutionary  successors  of  the  priest  and 
of  those  who  ordered  the  affairs  of  men  for  the  rulers  by 
divine  right.  Yet  judges  are  human,  quite  human.  This 
means  that  sometimes  they  are  overworked,  and,  quite  as 
often  peril aps,  are  just  a  little  bit  indolent.  These  human 
qualities  imply  that  sometimes  they  may  be  content  to  solve 
a  large  problem  by  misusing  a  phrase  which  has  associa- 
ious  giving  the  atmosphere  of  "authority."  The  process 
is  to  dissociate  it  from  its  original  setting,  and  so  misap- 
ply it  to  inappropriate  facts.  This  is  made  easily  possible 
because  the  chosen  sentence  or  paragraph  expresses  to  the 
uncritical  mind  something  which  seems  so  obviously  true 
as  to  preclude  inquiry  as  to  how  small  a  part  of  the  truth 
is  really  expressed,  or  how  doubtful  is  its  legitimate  appli- 
cation to  the  new  conditions. 

I  suspect  that  it  has  been  by  such  process  that  several  of 
our  courts  have  come  to  accept  Blackstone  as  an  authority 
on  the  meaning  of  freedom  of  speech  and  of  the  press,  as 
that  is  guaranteed  in  our  American  Constitutions.  The 
present  purpose  is  to  point  out  the  error  of  such  a  pro- 
cedure in  the  hope  of  correcting  it. 

Blackstone  an  Expositor,  Not  a  Philosopher. 

To  this  end  we  need  to  remind  ourselves  that  Black- 
stone's  legitimate  role  was  that  of  an  expositor  and  juri- 
dicial  historian.  He  did  not  attempt  to  make  any  original 
contribution  to  the  philosophy  of  law,  nor  pretend  to  point 
out  the  road  of  progress.  He  was  never  guilty  of  attempt- 
ing a  reform.  This  was  especially  true  as  to  his  comments 
upon  freedom  of  speech  and  press.  He  reported  all  the 
current  and  some  of  the  past  abridgments  of  intellectual 
freedom,  and  expressed  his  satisfaction  with  things  as  they 

89 


90  BLASPHEMY. 

were.  This  task  and  this  attitude  of  mind  gave  him  no  ca- 
pacity for  speaking  with  authority  on  the  meaning  of  that 
larger  mental  liberty  contended  for  by  those  whose  claims 
were  subsequently  conceded  and  guaranteed  by  the  Ameri- 
can constitutions. 

Even  in  1804  an  English  Lord  Chancellor  protested 
against  the  misuse  of  the  great  commentator:  "I  am  al- 
ways sorry  to  hear  Mr.  Justice  Blackstone's  Commentaries 
cited  as  an  authority.  He  would  have  been  sorry  himself 
to  hear  the  book  so  cited.  He  did  not  consider  it  such.'*^ 
The  proof  of  this  is  to  be  found  in  a  footnote  by  Black- 
stone,  placed  at  the  end  of  his  introduction  to  the  fourth 
edition.  Others  have  also  questioned  Blackstone's  ac- 
curacy as  a  commentator. 

For  the  purpose  of  this  argument,  we  may  agree  that,  as 
a  mere  reporter  of  juridical  events,  Blackstone  possesses  a 
high  order  of  accuracy  and  utility.  It  does  not  follow 
that,  if  he  leaves  the  task  of  a  historian  or  an  expositor,  to 
express  an  opinion  upon  controversial  matters  of  policy, 
his  opinion  upon  the  latter  is  entitled  to  any  weight  be- 
yond that  which  his  assigned  reasons  can  supply.  To  illus- 
trate, we  may  accept  as  true  what  Blackstone  says  about 
the  law  concerning  witchcraft  without  giving  any  of  the 
weight  of  authority  to  his  personal  endorsement  of  the 
witchcraft  delusion. ^  Likewise,  we  may  agree  that  he  ha^ 
accurately  reported  the  abridgements  of  intellectual  free- 
dom which  existed  under  English  law,  without  accepting 
his  personal  endorsement  of  the  current  practice  as  ex- 
pressing the  whole  end  and  aim  of  those  agitators  for  a 
larger  intellectual  liberty  who  succeeded  in  having  their 
views  about  free  speech  written  into  our  constitutions.  We 
may  agree  that  Blackstone  accurately  reported  the  law  as 
it  was,  without  acting  as  though  his  opinions,  which  were 
so  sympathetic  with  and  expressive  of  those  of  the  English 
Tories,  are  any  authority  as  interpretive  of  our  more  dem- 
ocratic constitutions. 

*  Shanon  v.  Shanon,  1  Schoales  &  Lefroy's  Ch.  R.  324-327. 
'  Book  4,  p.  60. 


BLACKSTONE    NO   AUTHORITY  ON   FREE  SPEECH.  91 


Blackstone  Anti-republican. 

In  the  beginnings  of  our  country,  Blackstone  was  almost 
the  only  law  book  read.  It  is  said  that  there  were  more 
sets  of  his  Commentaries  in  America  than  in  England. 
Jefferson  laments  that  "Blackstone  is  to  us  what  the  Al- 
coran is  to  the  Mahometans."^  Again  Jefferson  says: 
"The  exclusion  from  the  courts  of  the  malign  influence  of 
all  authorities  after  the  Georgiuin  sidiis  became  ascendant, 
would  uncanonize  Blackstone."*  And  a  reason  why  this 
might  not  be  regrettable  is  that  "Blackstone  and  Hume 
have  made  Tories  of  all  England,  and  are  making  Tories 
of  those  young  Americans  whose  native  feelings  of  inde- 
pendence do  not  place  them  above  the  wily  sophistries  of 
a  Hume  or  a  Blackstone."^ 

After  quoting  Blackstone's  doctrine  of  the  absolute 
sovereignty  of  the  king,  the  Supreme  Court  of  the  United 
States  makes  this  comment:  "This  last  position  is  only  a 
branch  of  a  much  more  extensive  principle  on  which  a  plan 
of  systematic  despotism  has  been  lately  formed  in  Eng- 
land, and  prosecuted  with  unwearied  assiduity  and  care. 
Of  this  plan  the  author  of  the  Commentaries  was,  if  not 
the  introducer,  at  least  the  great  supporter.  He  has  been 
followed  in  it  by  writers  later  and  less  known ;  and  his  doc- 
trines have,  both  on  the  other  and  this  side  of  the  Atlantic, 
been  implicitly  and  generally  received  by  those  who  ex- 
amine neither  their  principles  nor  their  consequences. 
That  principle  is,  that  all  human  law  must  be  prescribed 
by  a  superior.  This  principle  I  mean  not  now  to  examine. 
Suffice  it  at  present  to  say,  that  another  principle,  very  dif- 
ferent in  its  nature  and  operations,  forms,  in  my  judg- 
ment, the  basis  of  sound  and  genuine  jurisprudence ;  laws 
derived  from  the  pure  source  of  equality  and  justice  must 
be  founded  on  the  consent  of  those  whose  obedience  they 
require.  The  sovereign  when  traced  to  his  source  must  be 
found  in  the  man.''^ 

*Vol.  xii,  Writings  of  Thomas  Jefferson,  p.  392,  Library  Edition. 
*Vol.  xiii,  Writings  of  Thomas  Jefferson,  p.  166,  Library  Edition. 
'Vol.  xiv,  Writings  of  Thomas  Jefferson,  p.   120,  Library  Edition. 
•Chisholm  v.  Georgia,  1  U.  S.  419-458. 


92  BLASPHEMY. 


Even  an  English  Court  as  early  as  1784  has  told  us  that 
"Mr.  Justice  Blaekstone,  we  all  know,  was  an  anti-republi- 
can lawyer."'''  And  yet  some  Americans  are  impelled  to 
forget  that  when  Blaekstone  was  describing  liberty  of  the 
press  under  a  system  of  what  he  conceived  as  an  absolute 
monarchy,  he  was  describing  only  a  limited  intellectual 
liberty  by  permission.  They  forget  also  that  Blackstone's 
opponents  demanded  an  unabridged  intellectual  liberty  as 
a  conceded  and  constitutionally  guaranteed  right.  These 
latter  views,  not  those  of  Blaekstone,  were  written  into 
our  constitutions.  When  our  courts  forget  this  they  use 
Blackstone's  views  as  interpretive  of  our  constitutions  in- 
stead of  absolute  monarchy. 

Text  Writers  vs.  Blackstonb. 

Those  authors  not  on  the  judicial  bench  are  less  re- 
strained in  their  utterances  of  condemnation  than  are  the 
judges.  In  order  that  Blaekstone  may  be  duly  uncanon- 
ized,  it  becomes  necessary  to  quote  also  a  few  professional 
critics  who  are  not  constrained  by  judicial  etiquette.  One 
of  the  most  influential  libertarians  who  took  issue  with 
Blaekstone  was  Jeremy  Bentham.  He  intimates  in  Black- 
stone  the  existence  of  "a  resolution  to  justify  eveiy thing 
at  any  rate,  and  to  disapprove  of  nothing.  *  *  ♦ 
[He]  stands  forth  as  the  professed  champion  of  religious 
intolerance;  or  openly  feets  his  face  against  all  civil  re- 
formation."^ 

Mr.  John  Austin,  one  of  the  founders  of  the  analytic 
school  of  jurists,  in  addition  to  voluminous  concrete  criti- 
cism, makes  this  general  indictment  against  Blaekstone: 
"He  owed  the  popularity  of  his  book  to  a  paltry  but  ef- 
fectual artifice,  and  to  a  poor,  superficial  merit.  He 
truckled  to  the  sinister  interests  and  to  the  mischievous 
prejudices  of  power;  and  he  flattered  the  overweening  con- 
ceit of  their  national  or  peculiar  institutions  which  then 
was  devoutly  entertained  by  the  body  of  the  English 
people,  though  now  it  is  happily  vanishing  before  the  ad- 

'  King  V.  Shipley,  Dean  of  Asaph,  4  Douglas  73-172-3. 
'Fragments  of  Government,  p.  xxvii,  Edit  1823. 


BLACKSTONE  NO  AUTHORITY  ON   FREE  SPEECH.  93 

vancement  of  reason.  And  to  his  paltry  but  effectual 
artifice  he  added  the  allurements  of  a  style  which  is  fitted 
to  tickle  the  ear."® 

Mr.  Rice,  author  of  a  book  on  "The  Law  of  Evidence," 
has  written  a  searching  criticism  under  the  title,  "The 
Blackstone  Craze.''  In  it  he  says:  "Especially  is  it  in 
order  *  *  *  to  refer  to  the  vigorous  protest  of  two 
distinguished  former  occupants  of  the  New  York  Appel- 
late Bench,  who  based  Iheir  aversion  to  Blackstone,  first, 
on  account,  of  its  utter  uselessness  as  a  repository  of  ex- 
isting law ;  and  second,  because  of  its  direct  inculcation  of 
vicious  doctrines  that  have  been  wholly  repudiated^  and 
yet  leave  upon  the  impressionable  mind  of  the  student  the 
contour  of  a  false  theory  that  is  apt  to  infest  and  hamper 
much  of  his  subsequent  research. 

"It  is  a  rank  and  driveling  insult  to  the  common  intelli- 
gence of  our  profession  even  to  refer  to  the  major  portion 
of  Blackstone's  Commentaries  as  affording  even  a  feeble 
exposition  of  the  modem  law.  Whole  chapters  devoted  to 
the  ecclesiastical  and  governmental  policy  of  Great 
Britain  have  not  even  a  nebulous  bearing  upon  any  rule 
whatever  in  vogue  in  this  country;  and  in  fact  they  have 
long  been  superseded  by  elaborate  works  on  the  British 
constitution  that  have  been  out  of  print  for  half  a  century. 
What  species  of  mental  leprosy  will  still  insist  upon  feed- 
ing legal  minds  upon  such  Blackstonian  draff  as  is  found 
in  his  chapters  on  Benefit  of  Clergy  ♦  *  ♦  and  par- 
ticularly the  chapters  on  English  Criminal  Law? 

"Summarizing  the  contention  *  *  *  we  may  be  al- 
lowed to  say  that  a  course  of  study  that  aims  at  the  labori- 
ous exposition  of  principles  of  law  that  have  lost  their 
efficacy  or  application  *  *  *  of  criminal  laws  that 
a/re  a  smear  alike  upon  our  civilization,  our  humanity  am,d 
our  common  sense ,  ts  *  *  *  an  imposition  upon  prac- 
tical methods,  a  prostitution  of  practical  energy.''^** 

"It  has  become  quite  the  fashion  to  depreciate  the  study 

•Albany  Law  Journal,  vol.  viii,  p.  290,  quoting  Austin's  Lectures  on 
Jurisprudence,  3(1  ed.,  vol.  i,  p.  71;  or  vol.  i,  p.  69,  ed.  of  1911. 

"Frank  S.  Rice,  "The  Blackstone  Craze,"  Columbia  Law  Times,  vol. 
vi,  p.  1. 


94  BLASPHEMY. 


of  Blackstone's  Commentaries,  on  the  ground  that  they  are 
'the  charnel-house  of  dead  law.'  ''^^ 

Another  critic,  Mr.  Reuben  E.  Sears,  adds  this :  "It  is 
this  adoration  of  his  for  the  then  dominant  feeling  of 
society  that  makes  him  (in  his  fourth  book)  the  servile 
F.pologizer  of  Charles  i  ♦  ♦  *  that  makes  him  brand 
the  judges  *  *  *  as  'military  hypocrites  and  enthu- 
siasts' ;  that  leads  him  to  say  that  the  penalties  for  speak- 
ing in  derogation  of  the  Established  Church  are  ^not  too 
severe  and  intolerant;  that  prompts  him  to  exhibit  his 
ideas  of  a  merciful  Providence  when  he  tells  us  that  these 
penalties  'proved  a  principal  means,  under  Providence,  of 
preserving  the  purity  as  well  as  decency  of  the  national 
worship/ 

''He  tramples  on  the  right  of  private  judgment.  He  in- 
sults our  understanding.  He  tells  us  that  those  who  act  in 
opposition  to  the  Established  Church  'cannot  be  prompted 
by  any  laudable  motive,'  not  even  'by  a  mistaken  zeal  for 
reformation';  that  their  arguments  are  'the  virulent  de- 
clamations of  peevish  and  opinionated  men,'  and  'calcu- 
lated for  no  other  purpose  than  merely  to  disturb  the  con- 
sciences and  poison  the  minds  of  the  people.' 

"Thus,  in  an  age  when  the  great  principles  of  civil  and 
religious  liberty  were  being  so  strongly  agitated  which  are 
now  so  well  established,  he  stands  forth  the  professional 
champion  of  religious  intolerance,  the  determined  oppo- 
nent of  civil  reformation.  He  records  the  abominable  laws 
against  Dissenters  and  Papists,  by  which  they  are,  in 
effect,  deprived  of  nearly  all  civil  rights,  and  then  adds: 
'Everything  is  as  it  should  be.' 

"Thus,  he  treats  with  scorn  those  glorious,  all-enduring 
principles  for  which  Huss  and  Jerome  went  to  the  stake; 
for  which  honest-hearted  Luther  waged  his  long  warfare 
against  the  Romish  church ;  for  which  Zwingle,  fired  with 
the  spirit  of  Swiss  liberty,  poured  out  his  life-blood  on  the 
heights  of  Cappel ;  the  same  principles  which  were  sancti- 
fied by  the  suffering  zeal  of  Hooper  and  Latimer ;  the  same 
principles  for  which  glorious  Pym  and  valiant  Hampden 


Albany  Law  Journal,  vol.  viii,  p.  290. 


BLACKSTONE   NO  AUTHORITY   ON   FREE  SPEECH.  95 

offered  their  heroic  resistance  to  the  tyrannic  encroach- 
ments of  Charles  I,  and  whose  independent  sentiments 
were  made  to  be  respected  and  triumphant  by  the  invin- 
cible Ironsides,  of  lion-hearted  Cromwell  at  Marston  Moor, 
Naseby  and  Worcester;  the  same  principles  which  lost  to 
James  II  his  throne,  and  placed  thereon  the  courageous 
Prince  of  Orange;  the  same  principles  for  which  our  Rev- 
olutionary sires  fought  so  nobly  and  won  so  gloriously; 
which  in  our  own  country  again,  and  in  our  own  times, 
have  been  so  honorably  vindicated — the  eternal  and  im- 
mutable principles  of  civil  and  religious  liberty."^^ 

"It  is  true  Blackstone  in  the  later  editions  of  his  works 
somewhat  modified  his  expressions  in  regard  to  the  Tolera- 
tion Act  and  the  offenses  against  the  Established  Church. 
Yet  by  a  subtle  use  of  rhetorical  expletives,  he  has  left  the 
meaning  the  same  as  at  first,  or  else  left  no  meaning  at  all. 
This  led  Bentham  to  say  that  our  author  had  been  made  *to 
sophisticate,  even  expunge,  but  all  the  doctors  in  the  w^orld 
would  not  bring  him  to  confession.'  '^ 

My  researches  have  failed  to  uncover  one  single  writer 
who  has  combined  both  the  inclination  and  the  courage  to 
say  that  Blackstone  was  even  in  the  least  degree  qualified 
to  interpret  our  American  democratic  constitutions.  Not 
even  those  judges  who  read  into  our  constitutions  Black- 
stone's  conception  of  liberty  of  the  press  have  considered 
his  fitness  to  be  accepted  for  such  an  authority. 

Blackstone  and  General  Liberty. 
Of  course  Blackstone  had  to  justify  blasphemy  laws  be- 
cause his  assumed  task  was  to  defend  the  absolute  sov- 
ereignty of  the  ruling  caste.  Literary  talent  alone  could 
never  have  given  him-  distinguished  political  preferment. 
But  his  great  literary  ability,  devoted  to  the  unflinching 
defence  of  every  existing  tyranny,  contributed  mightily 
toward  his  development  from  a  pauper  orphan  to  a  cele- 
brated public  functionary,  whose  oflScial  acts  contributed 
absolutely  nothing  to  his  fame.^^ 

"William  Blackstone,  in  Western  Jurist,  vol.  v,  p.  529,  1871. 

''  But  for  an  interesting  and  sympathetic  account  of  Blackstone's  career 
see  Charles  B.  Wheeler,  "Blackstone  the  Lawyer  and  the  Man," 
University  of  Cal.  Publications,  vol.  xii ;  Univ.  Chronicle,  pp.  323-349. 


96  BLX^l- B.i:2^1Y. 


We  can  best  understand  the  value  of  Blackstone's  con- 
ception of  toleration  if  we  see  it  in  relation  to  his  more 
general  philosophy  of  government.  He  says :  "This  law  of 
nature  being  coeval  with  mankind,  and  dictated  by  God 
himself,  is  of  course  superior  in  obligation  to  any  other. 
It  is  binding  over  all  the  globe  and  in  all  countries,  and  at 
all  times ;  no  human  laws  are  of  any  validity  if  contrary  to 
this;  *  *  ♦  Upon  these  two  foundations,  the  law  of 
nature  and  the  law  of  revelation,  depend  all  human 
laws.''!^ 

From  such  a  theory  of  government  he  must  of  course  be- 
lieve in  laws  against  blasphemy,  and,  like  our  own  Puri- 
tans, he  could  no  doubt  quote  the  revealed  will  of  God  in 
support.  However,  some  American  judges,  in  harmony 
with  our  American  conception  of  a  secular  state,  have  said 
that  "reason  and  the  nature  of  things  will  impose  laws 
even  on  the  Deity.''^^  Austin  calls  the  most  probable  in- 
terpretation of  the  foregoing  quotations  from  Blackstone 
"sheer  nonsense.  "^^  Having  such  a  medieval  conception 
of  the  nature  and  origin  of  civil  law,  it  was  inevitable  that 
Blackstone  should  also  have  a  similar  view  of  personal 
liberty. 

To  make  it  plain  just  how  true  all  these  criticisms  are, 
if  we  view  Blackstone  from  a  democratic  and  libertarian 
viewpoint,  it  would  be  necessary  to  present  a  volume  in 
critical  review  of  his  commentaries.  Manifestly,  this  can- 
not be  done  here.  The  authors  quoted  above  have  per- 
formed that  task  in  part,  and  yet  not  thoroughly  from  the 
viewpoints  of  which  I  am  speaking. 

Endorsing  Tyranny  as  Perfect  Liberty. 

Those  who  are  familiar  with  English  history  during  the 
period,  just  preceding  our  American  revolution  will  know 
how  to  gauge  the  import  of  the  following  brief  quotations 
from  the  Commentaries.  Space  limits  forbid  the  repro- 
duction of  more.    Blackstone  exhibits  his  great  devotion  to 

"Vol.  i,  p.  42. 

"  Fletcher  v.  Peck,  6  Cranch  8-143. 

"Austin's  Lectures  on  Jurisprudence,  sec.  174. 


BLACKSTONE   NO   AUTHORITY   ON   FREE  SPEECH.  97 

tyranny  by  his  extravagant  praise  of  it  under  the  name  of 
liberty.  He  says  that  the  *^idea  and  practice  of  political 
and  religious  liberty  flourish  in  their  highest  vigor  in  these 
kingdoms,  where  it  falls  little  short  of  perfection/'^"' 

"All  these  rights  and  liberties  it  is  our  birthright  to  en- 
joy entire ;  unless  where  the  laws  of  our  country  have  laid 
them  under  necessary  restraints — restraints  in  themselves 
so  gentle  and  moderate  as  will  appear  upon  further  inquiry 
that  no  man  of  sense  or  probity  would  wish  to  see  them 
slackened.  For  all  of  us  have  it  in  our  choice  to  do  every- 
thing that  a  good  man  would  desire  to  do;  and  are  re- 
strained from  nothing  but  what  would  be  pernicious  either 
to  ourselves  or  our  fellow  citizens.''^^ 

No  man  is  an  authoritative  interpreter  of  our  demo- 
cratic and  constitutional  rights  who  cannot  give  them  a 
more  sympathetic  understanding  than  is  possible  to  a  man 
capable  of  penning  the  foregoing  paragraphs.  Blackstone 
did  not,  nor  did  he  attempt  it,  because  the  constitutions 
had  not  come  into  existence  when  he  wrote,  and  he  was 
incapable  of  sympathy  with  the  spirit  and  ideals  which 
called  them  into  being. 

Blackstone  on  Free  Speech. 

The  one  paragraph  on  freedom  of  the  press  which  our 
Courts  have  cited,  and  the  sentiment  of  which  has  been  ap- 
propriated by  others  of  them  without  credit  to  Blackstone 
is  the  following,  which  is  quite  in  accord  with  his  general 
defense  and  love  of  tyranny. 

"In  this,  and  in  other  instances  which  we  have  lately 
considered,  where  blasphemous,  immoral,  treasonable, 
schismatical,  seditious  or  scandalous  libels  are  punished 
by  the  Engish  law,  some  with  greater,  others  with  less  de- 
grees of  severity,  the  liberty  of  the  press,  properly  under- 
stood, is  hy  no  means  infringed  or  violated. 

"The  liberty  of  the  press  is  indeed  essential  to  the  nature 
of  a  free  state;  but  this  consists  in  laying  no  previous  re- 
straint upon  publication,  and  not  in  freedom  of  censure 

"Vol.  i,  p.  126. 
"Vol.  i,  p.  140. 


98  BLASPHEMY. 


for  criminal  matter  when  published.  Every  free  man  has 
an  undoubted  right  to  lay  what  sentiments  he  pleases  be- 
fore the  public ;  to  forbid  this  is  to  destroy  the  freedom  of 
the  press;  but  if  he  publishes  what  is  improper,  mis- 
chievous or  illegal,  he  must  take  the  consequences  of  his 
own  temerity.  To  subject  the  press  to  the  restrictive 
power  of  a  licenser,  as  was  formerly  done  both  before  and 
since  the  revolution,  is  to  subject  all  freedom  of  sentiment 
to  the  prejudices  of  one  man  and  make  him  the  arbitrary 
and  infallible  judge  of  all  controverted  points  in  learning, 
religion  and  government.  But  to  punish,  as  the  law  does 
at  present,  any  danger  mis  or  offensive  writings  which, 
when  published,  shall  on  a  fair  and  impartial  trial,  be  ad- 
judged of  a  pernicious  tendency,  is  necessary  for  the  pres- 
ervation of  peace  and  good  order  of  government  and  re- 
ligion, the  only  solid  foundations  of  civil  liberty."^^ 

Constitutions  Overruled  Blagkstonb. 

As  far  as  it  can  be  done  by  a  mere  abstract  statement  of 
the  law,  Blackstone  has  given  us  a  good  portrayal  of  the 
various  modes  of  restraining  free  speech  for  the  protection 
of  the  prerogatives  of  royalty  and  the  privileges  of  aris- 
tocracy. Usually  this  was  the  real  object  of  censorship, 
even  when  the  pretense  was  to  protect  religion,  morality, 
God  and  peace.  When  our  judges  accept  Blackstone  as 
an  authority  on  the  meaning  and  limits  of  constitutional 
free  speech,  they  overlook  one  very  important  fact, 
namely:  the  only  occasion  for  o'ur  constitutional  phrases 
upon  the  subject  was  the  desire  to  make  it  impossible  for 
our  legislators  to  re-enact  those  English  laws  against  free 
speech  which  Blackstone  approved. 

In  other  words  our  constitutions  were  never  intended  to 
endorse  Mansfield,  Kenyon,  Ellenborough,  Blackstone  or 
any  other  Tory-Eoyalist  conception  of  free  speech.  On  the 
contrary,  our  constitutional  guarantees  were  meant  to 
register  the  fact  that  these  English  judicial  conceptions  of 
free  speech  had  been  overruled  by  the  American  people. 

If  Blackstone's  paragraph  above  quoted  is  an  authority 

"  Com.  vol.  iv,  p.  151. 


BLACKSTONE   NO   AUTHORITY   ON   FREE  SPEECH.  99 

vijyon  the  meaning  of  unabridged  liberty,  then  he  is  equally 
an  authority  on  the  meaning  of  our  constitutional  guar- 
antees for  a  separation  of  church  and  state.  Thus,  by  the 
easy  device  of  a  Blackstonian  interpretation  of  our  con- 
stitutional guarantees  of  freedom,  we  may  revive,  not  only 
the  laws  against  Catholics,  impostors.  Nonconformists  and 
heretics,  but  also  those  legally  establishing  a  favored 
church.  Here  also  Blackstone  gave  his  endorsement.  To 
show  this  I  am  going  to  quote  Blackstone  again.  This 
time  I  will  quote  the  first  edition : 

"Everything  is  now  as  it  should  be^^  unless  perhaps  that 
heresy  ought  to  be  more  strictly  defined,  and  no  prosecu^ 
tion  permitted,  even  in  the  ecclesiastical  courts,  till  the 
tenets  in  question  are  by  proper  authority  previously  de- 
clared to  be  heretical.  Under  these  restrictions,  it  seems 
necessary,  for  the  support  of  the  National  Religion,  that 
the  officers  of  the  Church  should  have  power  to  censure 
heretics,  but  not  to  exterminate  or  destroy  them." 

To  punish  seditious  utterances  by  boring  a  hole  through 
the  tongue  with  a  red  hot  iron,  as  was  lawful  in  Maryland, 
or  to  inflict  the  same  punishment  for  denying  the  resurrec- 
tion of  the  body,  as  was  lawful  in  Massachusetts,  does  not 
involve  either  previous  restraint  or  complete  extermina- 
tion. These,  therefore,  are  in  complete  harmony  with  re- 
ligious liberty  and  unabridged  freedom  of  speech, 
"properly  understood,"  as  by  Blackstone  and  by  those 
American  courts  which  accept  him  as  an  authority  on  con- 
stitutional liberty  of  speech  and  press. 

Shall  we  now  believe  that  a  separation  of  church  and 
state  and  religious  equality  mean  only  that  heretics  ought 
no  longer  to  l>e  destroyed  or  burnt?  Is  that  not  just  as 
sensible  as  to  accept  Blackstone  as  an  authority  on  the 
meaning  of  free  speech  or  the  existence  of  witches? 

It  is  hoped  that  the  foregoing  considerations  have  much 
impaired  Blackstone's  toryism  as  an  authority  on  the 
meaning  of  our  religious  liberty  and  free  speech  guaran- 
tees. Later  will  be  exhibited  the  contrary  views  of  Black- 
stone's  critics.     Then  it  will  be  claimed  that  it   was  the 

"'Book  IV,  ch.  iv,  p.  49,  ed.  of  1769. 


100  BLASPHEMY. 


Opinions  of  the  friends  of  intellectual  liberty  and  not 
Blackstone^s  that  were  meant  to  be  expressed  in  our  con- 
stitutional guarantees  of  free  speech.  Likewise  it  will  be 
contended  that  their  opinions  shall  be  used  as  an  authori- 
tative interpretation  of  the  constitutional  language,  and 
that  Blackstone^s  definition  shall  be  disregarded. 


IX. 
BLACKSTONE'S  CRITICS. 

Having  disposed  of  Blackstone  as  an  "authority"  on 
the  meaning  of  our  American  constitutional  religious  and 
intellectual  liberty,  we  may  proceed  to  use  him  as  a  means 
of  clarifying  the  issues  that  were  fought  out  between 
those  who  were  content  with  the  conditions  approved  by 
Blackstone,  and  those  who  sought  intellectual  liberty,  as 
that  was  afterwards  assured  by  our  constitutions.  If  we 
can  get  a  clear  view  of  the  essence  of  the  controversy  be- 
tween them,  we  shall  have  an  exact  understanding  of  that 
which  our  constitutions  were  meant  to  prevent  in  future. 
This  may  or  may  not  give  us  the  whole  of  the  meaning  of 
mental  liberty,  but  it  will  surely  give  us  one  aspect,  or 
one  indispensable  factor  of  our  guaranteed  liberty  of  con- 
science, of  speech  and  of  the  press.  It  may  be  that  ab- 
sence of  previous  restraint  is  another  such  factor,  or  was 
but  one  of  several  different  methods  by  which  the  more 
fundamental  principle  was  denied.  So,  then,  for  the  pur- 
pose of  making  clear  the  pre-revolutionary  historic  issues 
over  intellectual  freedom,  and  for  the  purpose  of  showing 
what  intellectual  freedom  meant  to  those  whose  views 
were  incorporated  into  our  American  constitutions,  we 
will  state  a  little  more  at  length  the  defences  for  censor- 
ship as  that  was  regarded  at  about  Blackstone's  time,  and 
then  contrast  that  with  the  opinions  of  Blackstone's 
critics. 

The  Defense  of  Censorship. 

Then,  as  now,  the  advocates  for  the  suppression  of  un- 
X)opular  opinions  refused  to  see  that,  to  admit  the  exist- 
ence of  the  power  to  suppress  any  opinion,  is,  in  the  long 
run,  more  destructive  to  human  well-being  than  the  ideas 
against  which  they  would  have  the  powers  exercised. 
Then,  as  now,  the  alleged  immediate  public  welfare  was 
the  justification  for  every  form  of  censorship,  and  some 
dangerous  "tendency,"  only  speculatively  ascertained,  and 
usually  discovered  in  a  feverishly  apprehensive  imagina- 

101 


M2i^  '\':    :  :  blasphemy. 


tion,  was  always  the  test  of  guilt.  "The  most  tyrannical 
and  the  most  absolute  governments  speak  a  kind  of  par- 
ental language  to  the  abject  wretches  who  groan  under 
their  crushing  and  humiliating  weight."^ 

To  make  this  clear  it  is  necessary  only  to  quote  a  few 
passages  from  a  publication  dated  A.  D.  1680,  written  in 
defense  of  the  abridgements  of  freedom  of  speech  and 
press.  Sir  Roger  L'Estrange,^  quotes  Calvin  as  saying: 
"There  are  two  sorts  of  seditious  men,  and  against  both, 
these  must  the  sword  be  drawn ;  for  they  oppose  the  King 
and  God  himself."  He  then  exhibits  the  evolution  of  dan- 
gerous tendencies  by  these  words:  "First,  they  find  out 
corruptions  in  the  Government,  as  a  matter  of  grievance, 
which  they  expose  to  the  people.  Secondly,  they  petition 
for  Redress  of  those  Grievances,  still  asking  more  and 
more,  till  something  is  denied  them.  And  then.  Thirdly, 
they  take  the  power  into  their  own  hands  of  Relieving 
themselves,  but  with  oaths  and  protestations  that  they  act 
only  for  the  Common  Good  of  King  and  Kingdom.  From 
the  pretense  of  defending  the  Government,  they  proceed 
to  the  Reforming  of  it;  which  Reformation  proves  in  the 
end  to  be  a  final  dissolution  of  the  order  both  of  Church 
and  State.  *  *  *  Their  consciences  widened  with  their 
interest.  ♦  *  *  First,  they  fell  upon  the  King's  Repu- 
tation ;  they  invaded  his  authority  in  the  next  place ;  after 
that  they  assaulted  his  Person,  seized  his  Revenue;  and 
in  the  conclusion,  most  impiously  took  away  his  Sacred 
Life.  *  *  *  The  Transition  is  so  natural  from  Popular 
Petition  to  Tumult  that  the  one  is  hut  a  Hot  Fit  of  the 
other;  and  little  more  than  a  more  earnest  vyay  of  peti- 
tioning. ♦  *  *  They  Preach  the  People  into  murther, 
sacrilege,  and  Rebellion;  they  pursue  a  most  gracious 
Prince  to  the  scaffold;  they  animate  the  Regicides,  calling 
that  execrable  villany  an  act  of  Public  Justice,  and  enti- 
tling the  Holy  Ghost  to  Treason."^ 

*  Erskine  in  defense  of  Carnan. 

'A  Seasonable  Memorial  in  Some  Historical  Notes  upon  the  Liberties 
of  the  Press  and  Pulpit. 

"  In  addition  to  "A  Seasonable  Memorial,"  see  for  similar  argument 
"A  Discourse  of  Ecclesiastical  Politic,  wherein  the  Mischiefs  and 
Inconveniences  of  Toleration  are  Represented."    London,  1670. 


blackstone^s  critics.  103 

Prefering  Liberty  With  Its  Dangers. 

This  argument,  backed  by  the  historical  fact,  is  unan- 
swerable to  the  point  that  to  permit  freedom  of  criticism 
of  religion  or  of  government  and  its  priests  or  oflScials,  and 
to  allow  the  presentation  of  petitions  for  the  redress  of 
grievances,  is  to  permit  that  which  tends  to  promote  actual 
treason  or  rebellion.  It  follows  that  those  who  were  de- 
manding the  opi>ortunity  to  express  their  sentiments  in 
criticism  of  official  conduct  and  petitions  for  redress,  were 
in  effect  demanding  the  right  verbally  to  promote  treason 
with  impunity,  because  that  was  the  demonstrated  ten- 
dency, more  or  less  remote,  of  all  reformatory  effort.  That 
freedom,  with  its  attendant  dangerous  tendency,  is  ex- 
actly what  unabridged  freedom  of  speech  and  of  the  press 
meant  to  its  advocates,  and  our  constitutional  guarantee 
for  religious  liberty  and  an  unahridged  freedom  of  utter- 
ance was  a  final  decision  in  favor  of  that  view  and  against 
all  mere  psychologic  crimes,  including  even  verbal  "trea- 
son.'' In  other  words,  the  friends  of  free  speech  contended 
with  Salust,  that :  "Liberty  with  danger  is  to  be  preferred 
to  servitude  with  security." 

Heretofore  we  have  seen  the  views  of  those  who  believed 
in  the  absolutism  of  government,  and  all  liberty  as  a  revo- 
cable, limited  liberty  by  permission.  Our  constitutional 
guarantees  of  liberty  of  speech  and  press'  were  manifestly 
desired  to  secure  some  other  conception  of  liberty,  some 
irrevocable  and  "inalienable"  right.  Wbat  were  the  prac- 
tical, essential  and  fundamental  differences  between  these 
two  conceptions  of  freedom? 

Every  censorship  so  far  has  made  its  defense  behind 
question-begging  epithets  of  undefinable  meaning.  In  the 
language  of  Blackstone,  already  quoted,  by  means  of  sub- 
sequent punishment  everything  should  be  suppressed 
which  can  be  characterized  as  "dangerous  and  offensive 
writings,"  adjudged  to  be  so  because  of  a  "pernicious  ten- 
dency." This  also  was  the  excuse  for  laws  creating 
restraint  previous  to  publication.  The  friends  of  free 
speech  always  denied  that  a  mere  "pernicious  tendency" 
was  a  sufficient  excuse  for  suppressing  or  punishing  the 
expression  of  any  unpopular  idea. 


104  BLASPHEMY. 


The  Danger  of  Morality  in  Heretics. 

Of  course  the  determination  of  the  existence  of  such  a 
psychologic  tendency  before  its  fruition  in  actual  or 
material  injury,  or  in  an  overt  act  which  is  capable  of 
inflicting  it  according  to  the  known  law^  ^^  the  physical 
universe,  is  to  make  the  law  a  mere  matter  of  guess-work. 
Just  so  soon  as  we  get  away  from  scientifically  established 
fact  into  the  infinite  sea  of  metaphysical  speculation,  every 
semblance  of  "law''  disappears.  Many  have  reasoned 
about  atheism  and  agnosticism  as  Bishop  Horsley  did 
about  Unitarians.  He  said :  "Unitarianism  being  heresy, 
even  the  moral  good  of  the  Unitarians  is  sin."*  Of  course 
it  must  be  so,  because  their  every  moral  virtue  made  the 
major  sin  of  their  heresy  more  alluring,  and  so  more  ef- 
fective for  evil. 

The  processes  of  balancing  the  psychologic  tendencies  of 
an  opinion  in  the  minds  and  the  emotions  of  an  undefined 
hypothetical  reader  or  hearer  of  the  future  is  a  task  which 
the  most  skilled  psychologist  probably  would  not  have  the 
courage  to  undertake.  Those  who  know  the  least  about 
mental  and  emotional  mechanisms  are  the  most  certain 
about  their  ability  to  decide  such  questions,  and  those 
who  are  the  most  intense  in  their  moralistic  vociferations 
upon  this  subject  are,  of  course,  the  least  capable  of 
making  a  dispassionate  study  of  that  which  they  under- 
stand so  little.  Such  a  task  requires  the  highest  of 
specialized  scientists,  not  moral  sentimentalists.. 

A  review  of  the  opinions  of  the  defenders  of  unabridged 
free  speech  will  show  that,  aside  from  arguments  for  its 
morality  and  expediency,  the  essence  of  their  contention 
was  an  opposition  to  making  excuse  for  suppression,  or  the 
test  of  criminality,  to  depend  upon  an  uncertain  guess 
about  the  problematical ,  speculative,  and  prospective, 
psychologic  influence  of  an  idea  upon  a  mere  undescribed 
hypothetical  hearer  or  reader  of  the  future.  The  demand 
was  that  the  jurisdiction  of  the  magistrate  should  be  with- 
held until  that  assumed  psychologic  tendency  had  ceased 

to  be  a  mere  matter  of  imagination,  by  having  been  ex- 

III' 

*See:  Dunlap's  Defense  of  Abner  Kneeland,  p.  125. 


BLACKSTONi/S    CRITICS.  105 

pressed  in  an  overt   act   of   disorder   doing   actual  and 
material  injury. 

FURNEAUX  ON  LIMITS  OF  TOLERATION. 

Now  we  come  to  an  exposition  of  the  views  of  those  who 
rejected  Blackstone's  defense  of  absolutism  in  the  tyrant, 
— those  who  stood  for  religious  liberty  and  free  speech, 
and  whose  agitation  crystalized  into  our  constitutional 
guarantees  upon  that  subject 

First  and  chief  among  the  critics  of  Blackstone's  con- 
ception of  toleration  was  the  Rev.  Philip  Furneaux  ( 1726- 
1783).  This  learned  dissenting  divine  not  only  induced 
Blackstone  to  modify  his  views  somewhat,  in  the  later 
edition  of  his  Commentaries,  but  was  also  a  principal  fac- 
tor in  securing  a  more  liberal  attitude  of  the  English  gov- 
ernment toward  dissenters.^  His  pamphlets  in  favor  of 
unabridged  free  speech  grew  into  a  book  and  appeared  in 
several  editions. 

Here,  then,  is  the  statement  of  the  Rev.  Philip  Furneaux. 
He  says :  "For  if  the  magistrate  be  possessed  of  a  power 
to  restrain  and  punish  any  principles  relating  to  religion, 
because  of  their  tendency,  and  he  be  the  judge  of  that 
tendency;  as  he  must  be,  if  he  be  vested  with  authority 
to  punish  on  that  account;  religious  liberty  is  entirely 
at  an  end;  or,  which  is  the  same  thing,  is  under  the  con- 
trol, and  at  the  mercy  of  the  magistrate,  according  as  he 
shall  think  the  tenets  in  question  affect  the  foundation  of 
moral  obligation,  or  are  favorable  or  unfavorable  to  re- 
ligion and  morality.  But,  if  the  line  be  drawn  between 
mere  religious  principle  and  the  tendency  of  it,  on  the 
one  hand;  and  those  overt  acts  which  affect  the  publick 
peace  and  order  on  the  other;  and  if  the  latter  alone  be 
assigned  to  the  jurisdiction  of  the  magistrate,  as  being 
guardian  of  the  peace  of  society  in  this  world,  and  the 
former,  as  interfering  only  with  a  future  world,  be  re- 
served to  a  man's  own  conscience,  and  to  God,  the  only 
sovereign  Lord  of  conscience ;  the  boundaries  between  civil 
power  and  liberty,  in  religious  matters,  are  clearly  marked 

•Vol.  XX,  Diet,  of  Nat.  Biog.,  p.  331. 


106  BLASPHEMY. 


and  determined;  and  the  latter  will  not  be  wider  or  nar- 
rower, or  just  nothing  at  all,  according  to  the  magistrate's 
opinion  of  the  good  or  bad  tendency  of  principles. 

"If  it  be  objected,  that  when  the  tendency  of  principles 
is  unfavorable  to  the  peace  and  good  order  of  society,  as  it 
niay  be,  it  is  the  magistrate's  duty  then,  and  for  that  rea- 
son, to  restrain  them  by  penal  laws ;  I  reply,  that  the  ten- 
dency of  principles,  though  it  be  imfavordble,  is  not 
prejudicial  to  society,  till  it  issues  in  some  overt  acts 
against  the  publick  peace  and  order;  and  when  it  does, 
then  the  magistrate's  authority  to  punish  commences; 
that  is,  he  may  punish  the  overt  dcts,  but  not  the  tendency, 
which  is  not  actually  hurtful;  and,  therefore,  his  penal 
laws  should  be  directed  against  overt  acts  only,  which  are 
detrimental  to  the  peace  and  good  order  of  society,  let 
them  spring  from  what  principles  they  will;  and  not 
against  principles  or  the  tendency  of  principles. 

"The  distinction  between  the  tendency  of  principles,  and 
the  overt  acts  arising  from  them,  is,  and  cannot  but  be, 
observed  in  many  cases  of  a  civil  nature;  in  order  to  de- 
termine the  bounds  of  the  magistrate's  power,  or  at  least 
to  limit  the  exercise  of  it,  in  such  cases.  It  would  not  be 
difficult  to  mention  customs  and  manners,  as  well  as  prin- 
ciples, which  have  a  tendency  unfavorable  to  society ;  and 
which,  nevertheless,  cannot  be  restrained  by  penal  laws, 
except  with  the  total  destruction  of  civil  liberty.  And 
here,  the  magistrate  must  be  content  with  pointing  his 
penal  law  against  the  evil  overt  acts  resulting  from  them. 
*  *  *  *  Punishing  a  man  for  the  tendency  of  his  prin- 
ciples, is  punishing  him  before  he  is  guilty,  for  fear  he 
should  he  guilty."^ 

These  sentiments  of  Furneaux,  and  even  the  very  lang- 
uage in  which  they  are  expressed,  are  so  in  conformity 
with  the  Virginia  Religious  Liberty  Statute  as  to  leai 
little  doubt  that  the  latter  was  taken  from  the  former. 
Jefferson  himself  said  there  is  not  an  original  though/ or 
word  in  the  Virginia  Religious  Liberty  Statute."^  lyfcon- 
tinue  to  quote  from  Furneaux : 


'pp.  52-55,  ed.  of  1770. 

'  V.  IX,  Publications  Amer.  Sociol.  Soc,  p.  78. 


/ 


BLACKSTONE^S    CRITICS.  107 

"For,  though  calumny  and  slander,  when  affecting  our 
fallow  men,  are  punishable  by  law;  for  this  plain  reason, 
because  an  injury  is  done,  and  a  damage  sustained,  and  a 
reparation  therefore  due  to  the  injured  party;  yet,  this 
reason  cannot  hold  where  God  and  the  Redeemer  are  con- 
cerned; who  can  sustain  no  injury  from  low  malice  and 
scurrilous  invective;  nor  can  any  reparation  be  made  to 
them  by  temporal  penalties;  for  these  can  work  no  con- 
viction or  repentence  in  the  mind  of  the  offender;  and  if 
he  continue  impenitent  and  incorrigible,  he  will  receive 
his  condign  punishment  in  the  day  of  final  retribution. 
Affronting  Christianity,  therefore,  does  not  come  under 
the  magistrate's  cognizance,  in  this  particular  view,  as  it 
implies  an  offence  against  God  and  Christ."^ 

Let  me  continue  to  quote  from  Fumeaux'  Letters  to 
Blackstone  even  at  some  length,  so  as  to  give  a  more  ac- 
curate view  of  the  attitude  of  those  opposed  to  Blackstone's 
views.  After  this  longer  sample,  we  will  content  ourselves 
with  more  brief  extracts  from  other  writers  of  similar 
views. 

"So  that  the  particular  reason  on  which  you  ground  the 
indecency  of  reviling  the  liturgy,'  namely,  that  it  is  ^set- 
ting up  private  judgment  in  opposition  to  publick,' 
appears  to  me  to  be  very  inadequate  and  unsatisfactory."^ 

"The  next  article  in  the  composition  of  this  crime, 
namely,  reviling  the  common  prayer,  is,  you  say,  "arro- 
gance.' It  is  ^arrogant  to  treat  with  rudeness  and  con- 
tempt what  hath  a  better  chance  to  be  right,  than  the 
singular  notions  of  any  particular  man.'    [Blackstone.] 

"In  using  the  phrase,  ^the  singular  notions  of  a  particu- 
lar man,'  you  [Blackstone]  put  the  case  very  favorably 
^or  drawing  your  own  conclusions.  To  be  sure,  if  a  man 
^opts  sentiments  which  never  entered  into  anybody's 
hfeid  but  his  own,  or  which  no  one  will  embrace  when  pro- 
poj^d,  the  odds  are  against  him.  But  this  is  not  often  the 
case  and  is  not  so,  in  particular,  with  regard  to  the 
debav  between  the  church  and  the  Dissenters,  the  point 

•pP-'-62. 
'p.  79. 


108  BLASPHEMY. 


here  in  question.  However,  he  who  treats  the  notions  of 
others  with  a  rude  contempt,  does,  I  think,  in  most  cases, 
appear  to  affect  a  sort  of  superiority  ( call  it  arrogance,  or 
insolence,  if  you  please),  which  usually  ill  becomes  him 
who  assumes  it,  and  is  never  very  agreeable  to  those  who 
are  the  objects  of  it. 

"But  with  relation  to  the  query.  Who  have  the  fairest 
chance  of  being  in  the  right?  those  who  follow  the  lead 
of  a  publick  establishment?  or  those  who  are,  or  profess 
to  be,  impartial  enquirers  after  truth?  that,  I  think,  is 
not  so  clear,  at  least  on  one  side  of  the  question,  as  you 
seem  to  imagine. 

"Most  establishments,  even  those  which  have  been  set- 
tled by  authority  of  the  civil  power,  have  originated  from 
the  clergy;  at  least,  with  respect  to  their  formularies  of 
doctrine  and  worship;  and  the  magistrate  hath  had  little 
more  to  do  in  the  affair,  than  to  establish  what  hath  been 
already  prepared  to  his  hands.  Let  us,  then,  look  into 
ecclesiastical  history,  and  see  what  the  councils,  synods, 
convocations,  and  other  general,  national,  or  provincial 
assemblies  of  the  clergy,  have,  for  the  most  part,  been, 
from  the  first  famous  and  revered  Council  of  Mce,  down  to 
the  last  session  of  our  own  convocation  in  England.  When 
I  reflect  on  the  policy  and  artifice  used  in  the  management 
of  such  assemblies ;  on  their  obsequiousness  to  the  caprices 
of  princes,  and  ministers  of  state,  or  of  potent  ecclesiastics, 
and  even  of  some  of  their  own  ambitious  and  turbulent 
members;  on  their  prejudices  and  passions,  their  private 
and  party  views,  their  scandalous  animosities  and  con- 
tentions; on  the  small  majorities  by  which  questions  of 
importance,  intended  to  bind  not  only  the  men  of  that  age 
but  their  posterity,  have  been  determined :  on  the  respec^- 
ble  characters  which  have  often  appeared  in  the  min6r 
number:  and  above  all,  on  their  self-contradictions,  /nd 
their  mutual  censures  and  anathemas;  I  say,  when  lycon- 
sider  these  things,  I  own,  they  somewhat  abate  my/ever- 
ence  for  the  determinations  of  such  bodies.    *    * 

"The    third    article    which   you    [Blackstone] /exhibit 


"pp.  79-83. 


BLACKSTONE^S    CRITICS.  109 

against  reviling  the  liturgy,  is,  that  it  involves  in  it  *in- 
gratitude,  by  denying  indulgence  and  liberty  of  conscience 
to  the  members  of  the  national  church.'  There  would  be 
little  room,  surely,  sir,  to  complain  of  violations  of  lib- 
erty of  conscience,  if,  in  contending  for  their  respective 
dogmas,  men  never  went  beyond  contemning  and  ridicul- 
ing one  another;  for,  however  censurable  this  may  be,  it 
certainly  is  not  denying  them  liberty  of  conscience;  that 
always  implies  restraint  or  compulsion,  ideas  very  dif- 
ferent from  contempt  and  ridicule. 

"But  perhaps,  reviling  the  liturgy  may  be  censured,  as 
ungrateful,  on  account  of  the- toleration  indulged  to  Dis- 
senters. It  is  not,  however,  to  the  Church  the  Dissenters 
are  peculiarly  indebted  for  this  blessing.  For  though  her 
governors  promised  them  every  mark  of  Christian  temper 
and  brotherly  affection,  when  her  fears  of  Popery  ran  high 
in  the  reign  of  James  the  Second ;  yet,  as  soon  as  the  storm 
subsided,  these  promises  were,  in  great  measure,  for- 
gotten. It  is  to  that  great  prince,  King  William,  to  whom 
the  British  constitution  and  liberties  owe  their  preserva- 
tion and  security;  and  to  those  renowned  patriots  who 
first  engage,  and  then  supported  him,  in  the  glorious  en- 
terprise; it  is  to  these,  and  such  as  these,  the  Dissenters 
are,  under  God,  alone  obliged  for  their  deliverance  from 
unjust  violence  and  oppression ;  and  for  being  restored,  in 
part,  to  their  natural  rights  by  the  toleration.  I  say,  to 
their  natural  rights;  for  religious  liberty  is  one  of  those 
rights  to  which  men  are  entitled  by  nature;  as  much  so, 
as  to  their  lives  and  properties;  and  it  should  be  remem- 
bered, therefore,  that  the  Dissenters  cannot  be  justly 
reckoned  to  be  any  more  obliged  to  those  who  kindly  do 
not  again  deprive  them  of  it,  than  they  are  to  those  who 
as  kindly  do  not  seize  on  their  estates,  or  take  away  their 
lives;  an  obligation  which,  I  suppose,  hath  never  been 
t3?teemed  a  reason  for  any  peculiar  gratitude. 

"And  now,  sir,  notwithstanding  the  exceptions  which  I 
li^e  taken  to  your  premises,  I  will  leave  you  in  full  pos- 
sesion of  your  conclusion ;  I  will  suppose,  that  the  crime 
of  r^^iling  the  liturgy  is  a  complication  of  Hndencency, 
o^f^og^ce,  and  ingratitude;'  and  I  will  add,  moreover,  that 


110  BLASPHEMY. 

it  may  possibly  imply  (and,  I  think,  it  is  the  principal 
thing  that  can  be  implied  in  it,  though  you  have  not  at  all 
mentioned  it),  great  malignity  and  inveterancy  against 
the  church.  But,  surely,  to  confiscate  a  man's  goods,  and 
imprison  him  for  life,  for  any  degree  of  any  of  these  evil 
dispositions  towards  the  church,  when  discovered  only  by 
fwords  {though  it  he  frequently,  and  they  he  ever  so  open 
and  explicit)  and  not  by  any  injurious  and  dangerous 
overt  acts;  must  be  considered,  one  would  think,  by  per- 
sons of  humanity,  and  doubtless,  therefore,  by  you,  sir, 
upon  further  reflection  to  be  somewhat  too  severe  and  in- 
tolerant. Notwithstanding  all  the  bitterness  with  which 
the  puritans  inveighed  against  the  offices  of  the  church 
(and  which  they  did  no.t  do,  till  by  oppression  they  were 
provoked  almost  to  madness),  the  passing  this  act,  in  my 
opinion,  discovered  a  very  intolerant  spirit  in  those  who, 
at  that  time,  had  the  conduct  of  publick  affairs. 

"But  perhaps  it  may  be  said,  that  this  measure  was 
adopted  only  out  of  prudence,  for  the  security  of  the 
national  establishment.  You  inform  us,  that  ^the  terror 
of  these  laws  (for,  you  say,  they  seldom  or  never  were 
fully  executed)  proved  a  principal  means,  under  Provi- 
dence, of  preserving  the  purity  as  well  as  decency  of  our 
national  worship.'  Which,  give  me  leave  to  say,  sir,  is 
passing  no  great  compliment  upon  the  national  worship. 

"But  however  that  may  be :  what  had  the  church  to  fear 
from  the  revilings  of  the  puritans,  that  she  must  fence  her- 
self around  with  human  terrors?  We  are  to  suppose,  she 
had  all  the  truth  and  argument,  as  well  as  the  encourage- 
ment of  the  civil  magistrate,  on  her  side.  In  this  case, 
having  recourse  to  human  terrors  was  bringing  disgrace  on 
a  good  cause,  and  doing  credit  to  a  bad  one.  For  the  pre- 
sumption, in  most  men's  minds,  is  always  in  favor  of  the 
cause  which  is  oppressed  and  persecuted ;  and  that  this  is^ 
the  case,  is  owing,  partly,  to  a  certain  generosity  in  maj 
kind,  which  inclines  them  to  side  with  the  weakest, 
those  who  are  ill-treated;  and  partly  to  a  persuaj 
which  appears  not  wholly  unreasonable,  that  while  ^gu- 
ment  can  be  maintained,  terror  will  not  be  employed/^ii<i 
for  my  own  part,  I  am  persuaded,  that  the  church,  instead 


BLACKSTONE^S    CRITICS.  Ill 

of  insuring  its  safety  by  these  methods,  greatly  increased 
the  number  of  its  enemies,  and  inflamed  their  animosity 
and  inveteracy.  Had  the  governors  of  the  church  or  state, 
at  that  time,  made  a  few  concessions,  such  as  not  only  the 
puritans,  but  many  wise  and  great  men  in  the  church, 
desired;  or,  in  case  ♦  *  *  they  had  indulged  and  tol- 
erated those  puritans,  who  could  not  in  conscience  con- 
form, it  is  my  opinion,  the  church  would  have  been  in  no 
more  danger  from  the  puritans  of  that  age,  that  it  is  now 
in  from  the  Dissenters  of  this.  Such  severe  laws  occas- 
stoned  the  very  crime  they  w^ere  intended  to  prevent;  for 
they  imbittered  men's  spirits,  and  inflamed  their  passions ; 
and  when  the  mind  is  greatly  irritated,  it  is  hardly  in 
human  nature  to  speak  with  temper  and  moderation, 
either  of  those  by  whom,  or  of  that  for  which,  men  feel 
themselves  ill-treated  and  oppressed. 

"I  would  further  observe  (and  it  is  an  observation  I 
would  submit  to  a  gentleman  of  your  profession,  in  par- 
ticular) that,  on  supposition  this  act  was  levelled  only, 
as  you  seem  to  imagine,  against  the  hitter  reproaches  and 
insults  of  the  puritans,  it  seems  to  have  been  drawn  with 
too  great  latitude  of  expression.    I  believe  you  will  admit, 
and,  I  think,  you  have  somewhere  said  something  like  it, 
that  it  is  the  excellence  of  any  law  to  define  offences  and 
punishments  with  the  utmost  precision^  that  the  subject 
may  know  distinctly  what  is  lawful  and  what  is  forbidden. 
But  is  this  the  case  with  the  act  before  us,  supposing  it  to 
be  designed  merely  against  reviling  and  outraging  the 
offices  of  the  church?    For,  what  is  the  precise  idea  of  one 
who  speaks,  in  open  words,  in  derogation  of  the  common 
prayer?     Surely,  under  an  expression  of  such  latitude 
may  be  included  every  man,  who  openly  declares  his  dis- 
approbation of  any  part  of  it;  that  is,  any  one  who  gives 
his  reasons  for  not  joining  in  the  offices  of  the  church; 
ind  he  may,  by  a  willing  judge  and  jury,  nay,  ought,  ac- 
ctyding  to  the  literal  sense  of  the  words,  to  be  convicted 
upn  this  statute.    Now,  supposing  this  law  was  intended 
onl;^  as  you  seem  to  think,  against  insulting  and  reviling 
the  t^^^urgy;  can  so  good  a  lawyer  as  Dr,  Blackstone  ap- 


112  BLASPHEMY. 


prove  of  a  statute^  which  is  so  worded  as  to  comprehend 
persons  who  are  entirely  innocent  of  the  crime  intended? 

"But  in  truth,  I  cannot  help  thinking,  that  it  was  the 
actual  intention  of  those  who  promoted  this  act,  to  put 
an  effectual  stop,  if  possible,  to  the  puritans'  arguments  as 
well  as  their  revilings;  and  that,  on  this  account,  the  act 
was  so  expressed,  as  to  include  every  man  who  finds  fault 
with  the  common  prayer,  though  only  in  a  way  of  argu- 
ment. For  certainly,  that  is,  *in  open  words  speaking  in 
derogation  of  it.'  The  intent  of  the  act  at  that  time,  I 
am  afraid,  was,  to  prevent  the  questioning  any  part  of  the 
service  of  the  church,  either  in  a  way  of  reasoning  or 
reviling. 

"Before  Dr.  Blackstone,  therefore,  had  declared  his 
approbation  of  this  statute,  and  much  more  of  the  con- 
tinuance of  it  to  the  present  time,  he  should  have  con- 
sidered, what  persons  and  what  cases,  according  to  its 
literal  aiid  just  construction,  and  perhaps  according  to 
its  original  intention,  may  be  affected  by  it;  and  whether 
he  would  chuse  to  vindicate  it  in  its  full  extent.  In  every 
view  it  appears  to  me  very  surprising,  that  you,  sir,  who 
have  expressed  yourself,  on  various  occasions,  with  so 
much  liberality  of  sentiment,  should  think  ^the  con- 
tinuance of  this  act  not  too  severe  and  intolerant.'  "^^ 

This  ends  the  quotations  from  Furneaux.    It  is  believed 
that  enough  has  been  shown  to  make  it  very  plain  that 
this  friend  of  free  speech  repudiated  all  the  arguments  of 
moral  sentimentalism,  which  either  the  past  or  present 
friends  of    blasphemy    laws  put    forth    in    justification. 
Neither  he  nor  any  other  friend  of  complete  mental  free- 
dom ever  dreamed  of  contenting  themselves  with  arguing 
against  previous  restraint,  or  censorship  of  literary  style. 
The  censorsl|^^  laws  which  had  provided  for  previous  re- 
straint had  been  repealed  for  nearly  four  score  years  when/ 
Furneaux  wrote  his  criticism  of  Blackstone's  endorsemeiy 
of  then  existing  intolerance.     The  demand  was  not  f^ 
relief  from  previous  restraint,  but  from  subsequent  p^^- 

"  Furneaux,  Letters  on  Toleration,  Letter  IV,  pp.  89-100.    Di^^ent 
editions  of  these  "Letters"  vary  a  little. 


BLACKSTONE^S    CRITICS.  113 


ishment,  and  from  being  penalized  upon  uncertain  specu- 
lations about  psychologic  tendencies.  The  demand  was 
for  a  resort  only  to  overt  acts  to  produce  actual  and 
material  injury.  It  will  be  observed  that  there  is  also  a 
repudiation  of  the  idea  that  punishment  may  properly  be 
based  upon  the  style  or  temper  of  the  utterance. 

Bentham  on  Free  Speech. 

Furneaux  had  his  mind  focussed  on  religious  toleration, 
but  by  insisting  on  an  overt  act  as  the  only  proper  basis 
of  suppression  or  test  of  crime,  and  in  opposing  a  mere 
guess  about  a  psychologic  tendency  as  criteria  of  guilt, 
he  furnished  a  general  standard  of  judgment,  applicable 
to  all  problems  of  free  speech  that  can  arise  under  our 
constitutions.  Jeremy  Bentham,  another  of  the  dis- 
tinguished critics  of  Blackstone,  approached  the  problem 
of  tolerance  more  from  the  point  of  view  of  a  political  and 
parliamentary  reformer.  The  interesting  and  important 
thing  about  it  is  that  Bentham  reaches  the  same  concluson 
as  Furneaux,  namely,  that  if  intellectual  liberty  is  to  be 
maintained  we  must  abolish  speculations  about  psychologic 
tendencies  as  the  criteria  of  guilt,  and  substitute  therefor 
overt  acts,  actually  constituting  real  disturbance  and  real 
injury.  Jeremy  Bentham,  in  his  criticism  of  Blackstone's 
views  on  free  speech  says: 

"In  regard  to  a  government  that  is  free  and  one  that  is 
despotic,  wherein  is  it  then  that  the  difference  consists? 
*  *  *  *  On  the  liberty  of  the  press;  or  the  security 
with  which  every  man,  be  he  of  the  one  class  or  the  other, 
may  make  known  his  complaints  and  remonstrances  to 
the  whole  community ;  on  the  liberty  of  public  association ; 
on  the  security  with  which  malcontents  may  communicate 
their  sentiments,  concert  their  plans,  amd  practice  every 
mode  of  opposition  short  of  actual  revolt^  before  the  execu- 
tive power  can  be  legally  justified  in  disturbing  them."^^ 

Kev.  Joseph  Fownes. 

The  next  person  whom  I  will  quote  is  the  Rev.  Joseph 
Fownes,  as  to  whom  little  seems  to  be  known.     His  book 

"  Bentham's,  Fragment  on  Government,  p.  153-154,  Edit  1776. 


114  BLASPHEMY. 


"An  Enquiry  Into  the  Principles  of  Toleration/'  was  pub- 
lished in  the  second  edition  in  England  in  1773.  The  first 
edition  was  published  anonymously.  In  the  catalogue  of 
the  library  of  the  British  Museum,  it  appears  that  he  also 
published  several  items  under  the  pseudonym  of  "Phile- 
leutheros."  Notwithstanding  such  literary  prominence 
his  name  does  not  appear  among  collections  of  English 
biographies  which  I  have  examined.  I  suspect  the  ex- 
planation for  this  absence  of  information  is  to  be  found 
in  his  coming  to  America.  Some  time  about  1810  there 
appeared  in  Boston  a  pamphlet  entitled  "A  Blow  at  the 
Root  of  Aristocracy,  or  an  Appeal  to  Matters  of  Fact,  in 
Support  of  Religious  Freedom,"  and  signed  "Phileleu- 
theros."  Insofar  as  this  speculation  identifies  Joseph 
Fownes  with  agitation  for  intellectual  freedom  in  America, 
his  opinions  acquire  an  added  force  as  a  factor  in  con- 
struing our  constitutional  guarantees.  This  first  book 
was  in  part  inspired  by  Blackstone,  and  definitely  took 
issue  with  his  conception  of  intellectual  liberty.  In  the 
second  edition,  1773,^^  he  answers  an  objection  such  as 
doubtless  had  been  made  often,  and  must  have  been  in  the 
minds  of  those  who  framed  the  Constitution  of  Con- 
necticut.    He  says: 

"Religion,  it  will  be  urged,  may  be  made  a  plea  for 
anything;  and,  if  governors  must  never  interpose  to  re- 
strain it,  there  is  no  enormity  but  what  will  pass  un- 
punished." 

Then  he  goes  on  to  explain  away  the  fear  by  calling 
attention  to  the  same  old  line  between  actual  injury  and 
constructive  injury,  though  I  think  he  uses  less  precision 
therein  than  some  others.  The  Supreme  Court  of  the 
United  States  answers  the  same  contention  as  to  Mormon 
polygamists  in  U.  S.  v.  Reynold,  98  U.  S.  163.  That 
Court,  by  following  Jefferson  and  the  Virginia  Act  of 
Toleration,  in  fixing  the  limits  of  intellectual  liberty, 
reaches  the  same  conclusion  as  Fumeaux,  Fownes,  Milton, 
Bentham,  and  the  rest.  The  makers  of  the  Connecticut 
Constitution  were  unwilling  to  leave  it  to  future  construc- 

"  Page  18,  of  "An  Enquiry  Into  the  Principles  of  Toleration." 


BLACKSTONE^S    CRITICS.  115 

tion,  such  as  was  made  in  the  Keynold  case,  and  so  sought 
to  compel  the  same  construction  by  appropriate  words, 
answering  to  the  fears  of  the  people. 

Fownes^^  says:  "The  instances,  in  which  this  incon- 
venience may  be  supposed  to  arise  from  liberty  of  con- 
science, may,  I  presume,  be  generally  reduced  to  one  of 
these  cases.  The  case  of  persons  who  think  themselves 
bound  to  use  force  for  the  propagation  of  what  they  appre- 
hend to  be  truth.  The  case  of  those,  whose  principles  lead 
them  to  judge,  what  are  commonly  thought  vices  hurtful 
to  society,  to  be  innocent,  and  what  may  be  indulged 
without  scruple.  Or,  lastly,  the  case  of  those,  who  are  so 
unhappily  misled  as  to  incorporate  things  hurtful  to 
society  into  their  religion,  and  account  it  their  duty  to 
practice  them."  He  shows  that  the  principles  of  tolera- 
tion and  religious  freedom  neither  lead  to  these  evils  nor 
take  away  the  power  of  the  magistrate  to  restrain  them, 
insofar  as  they  are  real  and  not  imaginary  or  merely 
psychologic. 

To  the  first  he  answers :  "Every  attack  which  he  makes 
upon  their  person,  liberty  or  estate,  for  this  purpose,  is  an 
injury,  which  comes  within  the  limits  of  the  civil  power.^^ 
To  the  second  he  answers  that :  "Fraud,  robbery,  perjury, 
and  other  crimes  of  the  like  nature,  are  directly  repugnant 
to  all  the  essential  and  acquired  rights  of  men."^^  Mani- 
festly, he  is  writing  of  property  rights.  To  the  third  he 
answers  thus:  "If  his  judgment  should  unhappily  lead 
him  to  make  anything  a  part  of  his  religion,  which  is  in- 
jurious to  others,  and  contrary  to  the  fundamental  laws 
of  society ;  he  so  far  still  falls  under  the  animadversion  of 
the  magistrate.  *  *  ♦  He  acts  not  as  the  dictator  to 
his  subjects  in  spirituals,  hut  as  the  guardian  of  their  tem- 
poralities. *  *  *  By  attending  to  this  obvious  dis- 
tinction, the  rights  of  conscience  and  the  real  rights  of 
government  will  both  be  preserved,  and  the  pernicious 
extremes  of  calling  either  in  question  will  be  avoided. 

**In  an  Appendix,  p.  114. 
"p.  115. 
"p.  116. 


116  BLASPHEMY. 

Keligious  liberty  will  be  kept  from  running  into  licentons- 
ness;  civil  authority  be  preserved  from  degenerating  into 
tyranny /'^"^ 

An  Anonymous  Critic. 

Next  I  quote  from  an  interesting  essay  entitled: 
"Areopagitica,  an  essay  on  tbe  Liberty  of  the  Press,  dedi- 
cated to  the  Rt.  Hon.  Charles  James  Fox,  the  friend  of 
Truth  and  Liberty,  London,  1791"  (Not  by  Milton  and 
anonymous).  About  the  criminality  of  publishing  truth 
he  says:  "To  punish  the  effects  of  virtue,  is  to  punish 
virtue  itself.  It  surely  can  never  be  admitted  as  a  reason 
for  such  an  attack  upon  the  moral  obligations  of  society, 
^That  every  libel  has  a  tendency  to  a  breach  of  the  peace, 
by  provoking  the  person  libelled  to  break  it.'  If  such  argu- 
ment is  to  prevent  us  from  the  publication  of  Truth,  there 
is  an  end  of  all  active  morality,  and  there  is  no  distinc- 
tion, in  the  eye  of  the  law,  betwixt  crimes  and  virtues." ^^ 

"What  reason  can  be  given  for  the  punishment  of  moral 
duty?  Is  it  a  satisfactory  answer,  that  the  provocation  to 
others  to  commit  crimes  is  a  reason  why  men  should  not 
be  virtuous?  Laws  which  punish  Truth  cannot  be  made 
for  the  protection  of  good  men,  and  surely  laws  for  the 
protection  of  villiany  are  inconsistant  with  public  happi- 
ness."^^ 

"Thus  in  the  eye  of  the  law  [as  quoted  from  Black- 
stone]  ,  it  is  not  a  previous  restraint  to  be  restrained  from 
publishing  the  Truth,  or  to  be  certain  of  fine,  imprison- 
ment and  pillary,  for  the  publication  of  what  can  be  proved 
to  be  true,  and  intended  for  public  good  or  private  vindi- 
cation, or  any  other  general  or  individual  advantage."^^ 

"To  say  that  the  press  is  free  when  the  punishment  of 
publication  is  certain,  is  to  place  a  trap  for  virtue,  honor, 
and  good  conduct.  The  Author  is  indeed  in  a  much  worse 
condition  than  he  was  in  the  times  before  mentioned,  for 
he  might  then  be  secure  by  procuring  a  license. "^^ 

*'pp.  116-117. 
"p.  12. 
"p.  15. 
""p.  18. 
^p.  19. 


BLACKSTONE^S    CRITICS.  117 

"The  case  of  (a)  trial  for  a  breach  of  the  peace  [com- 
mitted] by  the  publication  of  truth,  is  surely  a  mockery 
of  common  sense  and  common  justice. "^^ 

"We  have  seen  from  the  law  laid  down  by  Blackstone, 
and  the  present  practice  of  the  courts  in  cases  of  libel,  that 
the  boasted  Liberty  of  the  Press,  consists  in  being  able  to 
publish,  with  a  probable  certainty  of  punishment,  and 
without  a  possibility  of  vindication,  in  a  prosecution  by 
indictment.  The  business  of  the  jury  is  very  short  and 
the  proceedings  summary."23 

WORTMAN  ON  BlACKSTONB. 

Unfortunately  no  biographical  data  as  to  Tunis  Wort- 
man  was  found  beyond  two  books  and  two  pamphlets  of 
his  authorship.  From  these  it  appears  that  he  was  a 
strong  advocate  of  the  election  of  Jefferson.  After  his 
election  he  delivered  an  oration  on  the  occasion  of  cele- 
brating his  inauguration.  One  of  Wortman's  books  is 
entitled  "A  Treatise  Concerning  Political  Inquiry  and 
Liberty  of  the  Press,''  New  York,  1800.  Wortman  was  a 
member  of  the  New  York  Bar  and  in  this  volume  wrote 
an  eloquent  and  impassioned  defence  for  unabridged  lib- 
erty of  political  inquiry.  On  the  whole,  it  is  a  defence  of 
Jefferson's  conception  of  intellectual  liberty.  In  the 
course  of  this  treatise,  he  makes  the  following  comment 
on  Blackstone: 

"It  is  essential  to  examine  the  prominent  principles  of 
the  present  doctrine  of  Libels,  in  order  that  we  may  ac- 
curately appreciate  the  ground  upon  which  it  is  usually 
vindicated.  Its  first  proposition  is,  that  in  criminal 
prosecutions  the  tendency  which  all  Libels  have  to  foment 
amdmositieSy  and  to  disturb  the  public  peace ,  is  the  sole 
consideration  of  the  law;  and  that  it  is,  therefore,  perfectly 
immaterial,  with  respect  to  the  essence  of  a  Libel,  whether 
the  matter  of  it  be  true  or  false — since  the  provocation, 
and  not  the  falsity,  is  the  thing  to  be  punished  crim- 
inally.    *     *     * 

="pp.  38-39. 
"p.  40. 


118  BLASPHEMY. 


"Truth  can  never  be  a  Libel.  The  system  which  main- 
tains so  odious  a  proposition,  is  founded  in  the  most 
palpable  injustice.    ♦    ♦      ♦ 

"Criminal  prosecutions  for  Libels  can  never  be  neces- 
sary to  preserve  the  public  tranquility:  the  coercion  of 
Violence  is  abundantly  sufficient  for  that  purpose.    *    ♦    ♦ 

"It  perpetually  implies  a  want  of  confidence  in  the  en- 
ergy of  the  law,  and  conveys  an  impolitic  acknowledgment 
of  the  imbecility  or  the  insincerity  of  Government.  It 
tells  us  that  the  Civil  Magistrate  is  too  impotent  to  sup- 
press the  ebullitions  of  Wrath,  and  must  therefore  act  the 
tyrant  over  Truth.     ♦     ♦     * 

"The  public  peace  must  be  preserved.  Our  laws  are  so 
disgracefully  imbecile  and  imperfect,  that  we  cannot  main- 
tain tranquility  without  the  sacrifice  of  Truth.    ♦    ♦    ♦ 

"Another  prominent  principle  of  the  present  doctrine 
concerning  Libels,  is,  that  ^the  Liberty  of  the  Press  en- 
tirely consists  in  laying  no  previous  restraints  upon  pub- 
lications, and  not  in  freedom  from  Censure  for  Criminal 
matter  when  published.'  This  definition,  of  which  the 
principal  force  consists  in  its  excluding  the  idea  of  a 
prevous  imprimatur ^  is  true  as  far  as  it  extends;  but  it 
is  extremely  imperfect.  Of  what  use  is  the  liberty  of  doing 
that  for  which  I  am  punishable  afterwards?  In  the  same 
sense  it  may  be  said  that  I  have  the  liberty  to  perpetrate 
felony  or  murder,  if  I  think  proper  to  expose  myself  to 
the  penalties  annexed  to  those  crimes.  In  ascertaining 
the  rights  I  possess,  it  is  not  to  be  enquired  what  I  may  do, 
and  be  punished ;  but  what  I  am  entitled  to  perform  with- 
out being  subjected  to  punishment. "^^ 

Priestly  on  Blackstone. 

The  Rev.  Joseph  Priestly  did  not  believe  in  the  total 
immediate  disestablishment  of  all  churches.  On  page  197 
of  "Essay  on  First  Principles  of  Government,"  he  endorses 
the  levying  of  taxes  to  support  all  religions,  everyone 
being  obliged  to  support  some  church.  He  says:  "It 
would  not  indeed  be  perfect  and  unbounded  liberty  in 

"*  Wortman's  Treatise  on  Liberty  of  the  Press,  Chap.  XVI.,  pp.  251-256 


BLACKSTONE^S    CRITICS.  119 

matters  of  religion,  but  it  would  be  pretty  near  it,  and 
might  make  way  for  it"  (p.  202).  Later  on  Dr.  Priestly 
came  to  America,  and  this  together  with  his  conservatism 
makes  his  comments  on  Blackstone  doubly  important. 

Dr.  Priestly  criticised  Blackstone,  in  a  pamphlet:  "Re- 
marks on  Some  Paragraphs  in  the  Fourth  Volume  of  Dr. 
Blackstone's  Commentaries."  Priestly,  however,  attempted 
mainly  to  criticise  Blackstone's  historical  accuracy  in  deal- 
ing with  dissenters,  rather  than  his  generalization  about 
the  meaning  of  free  speech.  He  begins  with  criticising 
the  laws  against  speaking  derogatively  of  the  prayer  books. 
"Why  may  I  not  speak  in  derogation  of  the  book  of  com- 
mon prayer,  or  even  in  contempt  of  it,  if  I  really  think 
it  a  defective  and  contemptible  performance?  Where  is 
the  great  crime  if,  insulted  as  Dissenters  have  always 
been,  with  the  malice,  and  nonsense  of  high  churchmen, 
they  should  now  and  then  speak  or  even  write  in  their 
own  vindication?  ♦  ♦  ♦  How  is  it  possible  to  vindicate 
our  conduct  as  Dissenters,  that  is  our  not  using  the  com- 
mon prayer  book,  without  speaking  in  derogation  of  it? 
(p  8.)  *  *  *  The  paragraph  [from  Blackstone]  I  am 
animadverting  upon,  is  calculated  to  do  as  much  mischief 
as  most  things  I  have  ever  read,  tending  to  inflame  the  ani- 
mosity of  a  party  and  to  increase  our  unhappy  division 
(p.  10)  *  *  *  and  propose  that  instead  of  ^virulent 
declamations  of  peevish  and  opinionated  men'  he  [Black- 
stone] would  write  the  calm  reasonings  of  sober  and  con- 
sciencious  men."  So  Priestly  really  makes  a  plea  for 
equality  of  liberty  for  excited  speech. 

He  does  not  demand  Blackstone's  suppression  for  ex- 
citement against  dissenters,  but  demands  that  Blackstone 
and  the  law  should  give  Dissenters  the  same  freedom  ex- 
ercised against  them. 

"Besides,  there  is  something  in  the  nature  of  religion 
that  makes  it  more  than  out  of  the  proper  sphere,  or 
province  of  the  civil  magistrate,  to  intermeddle  with  it" 
(p.  139). 

"The  sanctions  of  the  church  of  Christ  in  this  world 
are,  like  itself,  and  like  the  weapons  of  the  Christian  war- 
fare, not  carnal  and  temporal,  but  of  a  spiritual  nature; 


120  BLASPHEMY. 


and  do  not  affect  a  man's  person,  life,  liberty  or  estate 
(p.  153).  *  *  *  All  that  the  New  Testament  author- 
izes a  Christian  church  or  its  officers  to  do,  is  to  exclude 
from  their  society  those  persons  whom  they  do  not  deem 
worthy  of  it.  *  *  *  All  that  can  be  done  to  those  who 
are  guilty  of  contempt  against  church  power,  is  to  leave 
them  to  the  judgment  of  God  *  *  *  who  is  a  letter  judge 
of  its  real  danger  than  man  can  be  (p.  155).  *  *  *  Let 
them  not  only  predict,  but  if  their  zeal  prompt  them  to  it 
let  them  impricate  divine  judgment.  Lrct  them  pray  that 
God  luould  speedily  plead  his  own  cause,  taking  it  for 
granted  to  be  their  own.  Were  I  the  obnoxious  person,  I 
should  be  very  easy  upon  the  occasion,  provided  their  own 
cruel  and  merciless  hands  were  not  upon  me"  (p.  156). 
This  then  is  free  speech  and  religious  liberty  as  conceived 
by  Blackstone's  critics.  This  is  the  conception  written 
into  our  constitutions. 

FURNEAUX  AND  PRIESTLY  TO  JEFFERSON. 

What  interests  us  now  is  the  fact  that  Priestly  and 
Furneaux's  criticism  of  Blackstone  were  re-published  in 
Philadelphia  in  1773,^^  and  so  became  a  part  of  the  Ameri- 
can agitation  for  freedom  of  the  press  and  strengthens 
the  arguments  that  their  views  and  not  Blackstone's  were 
meant  to  be  incorporated  in  your  Constitution. 

It  is  hoped  that  this  makes  clear  the  issue  between 
Blackstone  and  his  critics.  Governments  that  abridge  in- 
tellectual liberty  always  make  the  same  justification  as 
Blackstone  did.  That  is,  the  dominant  class  wishes  to 
relieve  itself  of  the  annoyance  and  the  disturbance  inci- 
dent to  having  the  wisdom  or  the  justice  of  its  dominance 
questioned.  That  and  not  a  longing  for  general  justice 
or  truth  is  the  real  motive  for  wishing  to  prohibit  "dan- 
gerous and  offensive  writings."      When  the  danger  has 

''The  palladium  of  conscience,  or  the  foundation  of  religious  liberty 
displayed,  asserted  and  established,  agreeable  to  its  true  and  genuine 
principles,  above  the  reach  of  all^  petty  tyrants  who  attempt  to  lord 
it  over  the  human  mind.  Containing  Furneaux's  letters  to  Black- 
stone, Priestly's  remarks  on  Blackstone,  Blackstone's  reply  to  Priestly 
and  Blackstone's  Case  of  the  Middlesex  Section  *  *  *  Philadelphia, 
P.  Bell,  1773. 


blackstone's  critics.  121 

become  realized  in  overt  acts,  wljich  are  injurious  to  per- 
sons or  property,  tlie  purveyor  of  dangerous  ideas  becomes 
liable  as  an  accessory  before  the  fact,  of  some  other  crime, 
or  more  directly  liable,  as  in  personal  libel.  In  such 
cases  there  is  no  need  to  resort  to  speculation  about 
psychologic  tendency  because  the  actual  and  material 
injury  are  evident  and  can  be  easily  proven  if  they  exist. 
The  foregoing  quotations  make  it  plain  that  the  critics 
of  Blackstone  demanded  that  the  state  have  no  jurisdiction 
until  the  "dangerous  and  pernicious  tendency"  eventuates 
in  an  overt  act,  which  is  actually  dangerous  to  person  or 
property  according  to  the  known  laws  of  the  physical 
1111  i  verse,  and  not  merely  dangerous  according  to  a  meta- 
l^hj  sical  speculation  about  the  unrealized  psychologic  ten- 
dency of  an  idea  or  of  literary  or  oratorical  style,  upon 
some  hypothetical  hearer  or  reader  of  the  future.  From 
the  standpoint  of  Blackstone's  critics  this  was  the  essence 
of  mental  freedom,  as  to  religion. 


X. 

U.  S.  A.  versus  BLACKSTONE. 

In  the  year  1803,  at  Philadelphia,  there  was  published 
an  American  edition  of  Blackstone's  Commentaries.  It 
was  edited  by  St.  George  Tucker.  To  each  volume  is  at- 
tached an  appendix  containing  short  tracts  upon  such  sub- 
jects as  seemed  to  the  editor  to  be  necessary  to  an  under- 
standing of  the  changes  wrought  by  our  Constitutions  and 
the  laws  of  Virginia.  Under  Blackstone's  definition  of 
liberty  of  the  press  is  a  reference  to  an  "Appendix  to  vol- 
ume first  part  second ....  Note  G . . "  That  note  reveals  so 
much  of  the  past  and  contemporaneous  attitude  toward  re- 
ligious and  intellectual  liberty  and  contains  so  much  of 
exact  and  close  reasoning  that  it  will  be  reproduced  in  its 
entirety. 

Prof.  St.  George  Tucker,  who  edited  this  American  edi- 
tion of  Blackstone's  Commentaries,  and  so  wrote  the  ac- 
companying declaration  and  justification  of  the  American 
constitutional  concept  of  intellectual  liberty  was  one  of 
a  family  of  distinguished  statesmen  of  the  revolutionary 
period.  At  the  time  of  writing  the  following  discussion 
he  was  a  professor  of  law  in  the  College  of  William  and 
Mary,  and  Judge  of  the  General  Court  of  Virginia.  In 
1804  he  was  appointed  a  judge  of  the  Virginia  Court  of 
Appeals,  and  in  1813  Judge  of  the  United  States  District 
Court  of  Virginia.    The  italics  are  not  Prof.  Tucker's. 

"This  right  of  personal  opinion,  comprehends  first,  lib- 
erty of  conscience  in  all  matters  relative  to  religion;  and, 
secondly,  liberty  of  speech  and  of  discussion  in  all  specu- 
lative matters,  whether  religious,  philosophical,  or  po- 
litical. 

"1.  Liberty  of  conscience  in  matters  of  religion  consists 
in  the  absolute  and  unrestrained  exercise  of  our  religious 
opinions,  and  duties,  in  that  mode  which  our  own  reason 
and  conviction  dictate,  without  the  control  or  intervention 
of  any  human  power  or  authority  whatsoever.     This  lib- 

122 


U.  S.  A.  VERSUS  BLACKSTONE.  123 

erty  though  made  a  part  of  our  constitution,  and  inter- 
woven in  the  nature  of  man  by  his  Creator,  so  far  as  the 
arts  of  fraud  and  terrors  of  violence  have  been  capable  of 
abridging  it,  hath  been  the  subject  of  coercion  by  human 
laws  in  all  ages  and  in  all  countries  as  far  as  the  annals 
of  mankind  extend.  The  infallibility  of  the  rulers  of  na- 
tions, in  matters  of  religion,  hath  been  a  doctrine  prac- 
tically enforced  from  the  earliest  i>eriods  of  history  to  the 
present  moment  among  jews,  pagans,  mahommetans,  and 
christians,  alike.  The  altars  of  Moloch  and  of  Jehovah 
have  been  equally  stained  with  the  blood  of  victims,  whose 
conscience  did  not  receive  conviction  from  the  polluted 
doctrines  of  blood  thirsty  priests  and  tyrants.  Even  in 
countries  where  the  crucifix,  the  rack,  and  the  flames  have 
ceased  to  be  the  engines  of  proselitism,  civil  incapacities 
have  been  invariably  attached  to  a  dissent  from  the  na- 
tional religion:  the  ceasing  to  persecute  by  more  violent 
means,  has  in  such  nations  obtained  the  name  of  tolera- 
tion.^   In  liberty  of  conscience  says  the  elegant  Dr.  Price, 

^  There  is  something  so  truly  original  in  the  following  observations 
of  the  celebrated  author  of  Common  Sense,  on  the  subject  of  tolera- 
tion, that  I  shall  give  it  at  full  length "Toleration  is  not  the  op- 
posite of  intolerance,  but  is  the  counterfeit  of  it.  Both  are  despot- 
isms. The  one  assumes  to  itself  the  right  of  withholding  liberty  of 
conscience,  and  the  other  of  granting  it.  The  one  is  the  pope  armed 
with  fire  and  faggot,  and  the  other  is  the  pope  selling,  or  granting 
indulgences.  The  former  is  church  and  state;  and  the  latter  is 
church  and  traffic. 

"But  toleration  may  be  viewed  in  a  much  stronger  light.  Man 
worships  not  himself,  but  his  Maker;  and  the  liberty  of  conscience 
which  he  claims,  is  not  for  the  service  of  himself,  but  of  his  God. 
In  this  case,  therefore,  we  must  necessarily  have  the  associated  idea 
of  two  beings;  the  mortal  who  renders  the  worship,  and  the  im- 
mortal   being    who    is    worshipped Toleration,    therefore,     places 

itself,  not  between  man  and  man,  nor  between  church  and  church, 
nor  between  one  denomination  of  religion  and  another,  but  between 
God  and  man ;  between  the  being  who  worships,  and  the  being  who 
is  worshipped;  and  by  the  same  act  of  assumed  authority  by  which 
it  tolerates  man  to  pay  his  worship,  it  presumptuously  and  blasphe- 
mously sets  itself  up  to  tolerate  the  Almighty  to  receive  it. 

"Were  a  bill  brought  into  any  parliament,  entitled,  "An  act  to 
tolerate  or  grant  liberty  to  the  Almighty  to  receive  the  worship  of  a 
Jew  or  a  Turk,"  or  "to  prohibit  the  Almighty  from  receiving  it :" 
all  men  would  startle,  and  call  it  blasphemy.  There  would  be  an 
uproar.  The  presumption  of  toleration  in  religious  matters  would 
then  present  itself  unmasked :  but  the  presumption  is  not  the  less  be- 
cause the  name  of  "man"  only  appears  to  those  laws,  for  the  asso- 
ciated idea  of  the  worshipper  and  worshipped  cannot  be  separated. 
Who,  then,  art  thou,  vain  dust  and  ashes !  by  whatever  name  thou 


124  BLASPHEMY. 


I  include  much  more  than  toleration.  Jesus  Christ  has  es- 
tablished a  perfect  equality  among  his  followers.  His  com- 
mand is,  that  they  shall  assume  no  jurisdiction  over  one 
another,  and  acknowledge  no  master  besides  himself.  It 
is,  therefore,  presumption  in  any  of  them  to  claim  a  right 
to  any  superiority  or  pre-eminence  over  their  bretheren. 
Such  a  claim  is  implied,  whenever  any  of  them  pretend  to 
tolerate  the  rest.  Not  only  all  christians,  but  all  men  of 
all  religions,  ought  to  be  considered  by  a  state  as  equally 
entitled  to  it's  protection,  as  far  as  they  demean  them- 
selves honestly  and  peaceably.  Toleration  can  take  place 
only  where  there  is  a  civil  establishment  of  a  particular 
mode  of  religion ;  that  is,  where  a  predominant  sect  enjoys 
exclusive  advantages,  and  makes  the  encouragement  of  it's 
own  mode  of  faith  and  worship  a  part  of  the  constitution 
of  the  state;  but  at  the  same  time  thinks  fit  to  suffer  the 
exercise  of  other  modes  of  faith  and  worship.    Thanks  be 

art  called,  whether  a  king,  a  bishop,  a  church  or  a  state,  a  parlia- 
ment or  any  thing  else,  that  obtrudest  thine  insignificance  between 
the  soul  of  man  and  it's  Maker?  Mind  thine  own  concerns.  If  he 
believes  not  as  thou  believest,  it  is  a  proof  that  thou  believest  not  as 
he  believeth,  and  there  is  no  earthly  power  can  determine  between 
you. 

"With  respect  to  what  are  called  denominations  of  religion,  if 
every  one  is  left  to  judge  of  it's  own  religion,  there  is  no  such  thing 
as  a  religion  that  is  wrong;  but  if  they  are  to  judge  of  each  other's 
religion,  there  is  no  such  thing  as  a  religion  that  is  right ;  and,  there- 
fore, all  the  world  is  right,  or  all  the  world  is  wrong.  But  with  re- 
spect to  religion  itself,  without  regard  to  names,  and  as  directing 
itself  from  the  universal  family  of  mankind  to  the  divine  object  of  all 
adoration,  it  is  man  bringing  to  his  Maker  the  fruits  of  his  heart ;  and 
though  those  fruits  may  differ  from  each  other  like  the  fruits  of  the 
earth^  the  grateful  tribute  of  every  one  is  accepted. 

**A  bishop  of  Durham  or  a  bishop  of  Winchester,  or  the  archbishop 
who  leads  the  dukes,  will  not  refuse  a  tythe-sheaf  of  wheat,  because 
it  is  not  a  cock  of  hay;  nor  a  cock  of  hay,  because  it  is  not  a  sheaf 
of  wheat ;  nor  a  pig  because  it  is  neither  one  nor  the  other ;  but  these 
same  persons,  under  the  figure  of  an  established  church,  will  not 
permit  their  maker  to  receive  the  varied  tythes  of  man's  devotion. 

"One  of  the  continual  chorusses  of  Mr.  Burke's  book  is  "church 
and  state" :  he  does  not  mean  some  one  particular  church,  or  someone 
particular  state,  but  any  church  and  state;  and  he  uses  the  term  as 
a  general  figure,  to  hold  forth  the  political  doctrine  of  always  uniting 
the  church  with  the  state  in  every  country;  and  he  censures  the  na- 
tional assembly  for  not  having  done  this  in  France.  Let  us  bestow 
a  few  thoughts  on  this  subject. 

"All  religions  are  in  their  nature,  kind  and  benign,  and  united 
with  principles  of  morality.  They  could  not  have  made  proselytes 
at  first,  by  professing  any  thing  that  was  vicious,  cruel,  persecuting, 
or  immoral.     Like  every  thing  else  they  had  their  beginning;  and 


U.  S.  A.  VERSUS  BLACKSTONE.  125 

to  God,  the  new  American  states  are  at  present  strangers 
to  such  establishments.  In  this  respect,  as  well  as  many 
others,  they  have  shewn  in  framing  their  constitutions,  a 
degree  of  wisdom  and  liberality  which  is  above  all  praise. 
"Civil  establishments  of  formularies  of  faith  and  wor- 
ship, are  inconsistent  with  the  rights  of  private  judgment. 

They    engender    strife they    turn    religion    into    a 

trade they  shore  up  error they  produce  hypocrisy 

and  prevarication they  lay  an  undue  bias  on  the  hu- 
man mind  in  its  inquiries,  and  obstruct  the  progress  of 
truth ....  genuine  religion  is  a  concern  that  lies  entirely 
between  God  and  our  own  souls.  It  is  incapable  of  receiv- 
ing any  aid  from  human  laws.  It  is  contaminated  as  soon 
as  worldly  motives  and  sanctions  mix  their  influence  with 
it.  Statesmen  should  countenance  it  only  by  exhibiting, 
in  their  own  example,  a  conscientious  regard  to  it  in  those 

they  proceeded  by  persuasion,  exhortation,  and  example.  How  is  it 
then  that  they  lose  their  native  mildness,  and  become  morose  and 
intolerant? 

"It  proceeds  from  the  connection  which  Mr.  Burke  recommends. 
By  engendering  the  church  with  the  state,  a  sort  of  mule  animal,  ca- 
pable only  of  destroying,  and  not  of  breeding  up,  is  produced,  called 
the  church  established  by  law.  It  is  a  stranger,  even  from  it's  birth, 
to  any  parent  moth'er  on  which  it  is  begotten,  and  whom  in  time  it 
kicks  out  and  destroys. 

"The  inquisition  in  Spain  does  not  proceed  from  the  religion 
originally  professed,  but  from  this  mule  animal,  engendered  between 
the  church  and  state.  The  burnings  in  Smithfield  proceeded  from 
the  same  heterogeneous  production;  and  it  was  the  regeneration  of 
this  strange  animal  in  England  afterwards,  that  renewed  the  rancour 
and  irreligion  among  the  inhabitants;  and  that  drove  the  people 
called  Quakers  and  dissenters  to  America.  Persecution  is  not  an 
original  feature  in  any  religion ;  but  it  is  always  the  strongly  marked 
feature  of  all  law  religions,  or  religions  established  by  law.  Take 
away  the  law-establishment,  and  every  religion  re-assumes  its  origi- 
nal benignity.  In  America,  a  catholic  priest  is  a  good  citizen,  a 
good  character,  and  a  good  neighbour;  an  episcopalian  minister  is 
of  the  same  description :  and  this  proceeds  independently  of  the  men, 
from  there  being  no  law-establishment  in  America. 

*Tf  also  we  view  this  matter  in  a  temporal  sense,  we  shall  see  the 
ill  effects  it  has  had  on  the  prosperity  of  nations.  The  union  of 
church  and  state  has  impoverished  Spain.  The  revoking  the  edict  of 
Nantz  drove  the  silk  manufacture  from  France  into  England;  and 
church  and  state  are  now  driving  the  cotton  manufacture  from 
England  to  America  and  France.  It  was  by  observing  the  ill  effects 
of  it  in  England,  that  America  has  been  warned  against  it;  and  it  is 
by  experiencing  them  in  France,  that  the  national  assembly  have 
abolished  it;  and,  like  America,  have  established  universal  right  of 
conscience,  and  universal  right  of  citizenship. 

Paine's  Rights  of  Man,  part  1,  p.  58,  &c.    Albany,  1794. 


126  BLASPHEMY. 


n 

I      SI 


forms  which  are  most  agreeable  to  their  own  judgments, 
and  by  encouraging  their  fellow  citizens  in  doing  the  same. 
They  cannot,  as  public  men,  give  it  any  other  assistance. 
All,  besides,  that  has  been  called  a  public  leading  in  re- 
ligion, has  done  it  an  essential  injury,  and  produced  some 
of  the  worst  consequences. 

"The  church  establishment  in  England  is  one  of  the 
mildest  sort.  But  even  there  what  a  snare  has  it  been  to 
integrity?  And  what  a  check  to  free  inquiry?  What  dis- 
X>ositions  favourable  to  despotism  has  it  fostered?  What 
a  turn  to  pride  and  narrowness  and  domination  has  it 
given  the  clerical  character?  What  struggles  has  it  pro- 
duced in  its  members  to  accommodate  their  opinions  to 
the  subscriptions  and  tests  which  it  imposes?  What  a  per- 
version of  learning  has  it  occasioned  to  defend  obsolete 
creeds  and  absurdities?  What  a  burthen  is  it  on  the  con- 
sciences of  some  of  its  best  clergy,  who,  in  consequence  of 
being  bound  down  to  a  system  they  do  not  approve,  and 
having  no  support  except  that  which  they  derive  from  con- 
forming to  it,  find  themselves  under  the  hard  necessity  of 
either  prevaricating  or  starving?  No  one  doubts  but  that 
the  English  clergy  in  general  could  with  more  truth  de- 
clare that  they  do  not,  than  that  they  do  give  their  un- 
feigned assent  to  all  and  every  thing  contained  in  the 
thirty -nine  articles,  and  the  book  of  common  prayer :  and, 
yet,  with  a  solemn  declaration  to  this  purpose,  are  they 
obliged  to  enter  upon  an  office  which  above  all  offices  re- 
quires those  who  exercise  it  to  be  examples  of  simplicity 
and  sincerity ....  Who  can  help  execrating  the  cause  of 
such  an  evil? 

"But  what  I  wish  most  to  urge  is  the  tendency  of  reli- 
gious establishments  to  impede  the  improvement  of  the 
world.  They  are  boundaries  prescribed  by  human  folly  to 
human  investigation;  and  enclosure,  which  intercept  the 
light,  and  confine  the  exertions  of  reason.  Let  any  one 
imagine  to  himself  what  effects  similar  establishments 
would  have  in  philosophy,  navigation,  metaphisics,  medi- 
cine, or  mathematics.  Something  like  this,  took  place  in 
logic  and  philosophy,  while  the  ipse  dixit  of  Aristotle,  and 


U.  S.  A.  VERSUS  BLACKSTONE.  127 

the  nonsense  of  the  school,  maintained,  an  authority  like 
that  of  the  creeds  of  churchmen;  and  the  effect  wajs  a 
longer  continuance  of  the  world  in  the  ignorance  and  bar- 
barity of  the  dark  ages.  But  civil  establishments  of  relig- 
ion are  more  pernicious.  So  apt  are  mankind  to  misrepre- 
sent the  character  of  the  Deity,  and  to  connect  his  favour 
with  particular  modes  of  faith,  that  it  must  be  expected 
that  a  religion  so  settled  will  be  what  it  has  hitherto  been 
....  a  gloomy  and  cruel  superstition,  bearing  the  name 
of  religion. 

"It  has  been  long  a  subject  of  dispute,  which  is  worse  in 
it's  effects  on  society,  such  a  religion  or  speculative  athe- 
ism. For  my  own  part,  I  could  almost  give  the  preference 
to  the  latter Atheism  is  so  repugnant  to  every  prin- 
ciple of  common  sense,  that  it  is  not  possible  it  should  ever 
gain  much  ground,  or  become  very  prevalent.  On  the  con- 
trary, there  is  a  particular  proneness  in  the  human  mind 
to  superstition,  and  nothing  is  more  likely  to  become  prev- 
alent ....  Atheism  leaves  us  to  the  full  influence  of  most  of 
our  natural  feelings  and  social  principles;  and  these  are 
so  strong  in  their  operation,  that,  in  general,  they  are  a 
sufficient  guard  to  the  order  of  society.  But  superstition 
counteracts  these  principles,  by  holding  forth  men  to  one 
another  as  objects  of  divine  hatred;  and  by  putting  them 
on  harrassing,  silenceing,  imprisoning  and  burning  one 
another,  in  order  to  do  God  service. . .  .Atheism  is  a  sanc- 
tuary for  vice,  by  taking  away  the  motives  to  virtue  aris- 
ing from  the  will  of  God,  and  the  fear  of  future  judgment. 
But  superstition  is  more  a  sanctuary  for  vice,  by  teach- 
ing men  ways  of  pleasing  God,  without  moral  virtue ;  and 
by  leading  them  even  to  compound  for  wickedness,  by 
ritual  services,  by  bodily  penances  and  mortifications;  by 
adoring  shrines,  going  pilgrimages,  saying  many  prayers, 
receiving  absolution  from  the  priests,  exterminating 
heretics,  &c Atheism  destroys  the  sacredness  and  obli- 
gation of  an  oath.  But  is  there  not  also  a  religion  (so 
called )  which  does  this,  by  teaching,  that  there  is  a  power 
which  can  dispense  with  the  obligation  of  oaths ;  that  pious 
frauds  are  right,  and  that  faith  is  not  to  be  kept  with 
heretics. 


128  BLASPHEMY. 


"It  is  indeed  only  a  rational  and  liberal  religion ;  a  re- 
ligion founded  on  just  notions  of  the  Deity,  as  a  Being 
who  regards  equally  every  sincere  worshipper,  and  by 
whom  all  are  alike  favoured  as  far  as  they  act  up  to  the 
light  they  enjoy :  a  religion  which  consists  in  the  imitation 
of  the  moral  perfections  of  an  Almighty  but  Benevolent 
Governor  of  Nature,  who  directs  for  the  best,  all  events, 
in  confidence  in  the  care  of  his  providence,  in  resignation 
to  his  will,  and  in  the  faithful  discharge  of  every  duty  of 
piety  and  morality  from  a  regard  to  his  authority,  and  the 
apprehension  of  a  future  righteous  retribution.  It  is  only 
this  religion  (the  inspiring  principle  of  every  thing  fair 
and  worthy,  and  joyful,  and  which,  in  truth  is  nothing 
but  the  love  of  God  to  man,  and  virtue  warming  the  heart 
and  directing  the  conduct).  It  is  only  this  kind  of  re- 
ligion that  can  bless  the  world,  or  be  an  advantage  to  so- 
ciety. This  is  the  religion  that  every  enlightened  friend  to 
mankind  will  be  zealous  to  support.  But  it  is  a  religion 
that  the  powers  of  the  world  know  little  of,  and  which  will 
always  be  best  promoted  by  being  left  free  and  open.^ 
The  following  passage  from  the  same  author,  deserves  too 
much  attention  to  be  pretermitted:  ^Let  no  such  monster 
be  known  there,  [in  the  United  States]  as  human  authority 
in  matters  of  religion.  Let  every  honest  and  peaceable  man, 
whatever  is  his  faith,  be  protected  there;  and  find  an  ef- 
fectual defence  against  the  attacks  of  bigotry  and  intoler- 
ance. In  the  United  States  may  religion  flourish!  They 
cannot  be  very  great  and  happy  if  it  does  not.  But  let  it 
be  a  better  religion  than  most  of  those  which  have  been 
hitherto  professed  in  the  world.  Let  it  be  a  religion  which 
enforces  moral  obligations;  not  a  religion  which  relaxes 
and  evades  them ....  A  tolerant  and  catholic  religion ;  not 
a  rage  for  proselytism. . .  .A  religion  of  peace  and  charity; 
not  a  religion  that  persecutes  curses  and  damns.  In  a 
word,  let  it  be  the  genuine  gospel  of  peace,  lifting  above 
the  world,  warming  the  heart  with  the  love  of  God  and  his 
creatures,  and  sustaining  the  fortitude  of  good  men,  by  the 
assured  hope  of  a  future  deliverance  from  death,  and  an 

*  Price's  observations  on  the  American  revolution,  p.  28  to  34. 


U.  S.  A.  VERSUS  BLACKSTONE.  129 

infinite  reward  in  the  everlasting  kingdom  of  our  Lord  and 
Saviour.'  ^ 

"This  inestimable  and  imprescriptible  right  is  guaran- 
teed to  the  citizens  of  the  United  States,  as  such,  by  the 
constitution  of  the  United  States,  which  declares,*  that  no 
religious  test  shall  ever  be  required  as  a  qualification  to 
any  office  or  public  trust  under  the  United  States ;  and  by 
that  amendment  to  the  constitution  of  the  United  States,^ 
which  prohibits  congress  from  making  any  law  respecting 
the  establishment  of  religion,  or  prohibiting  the  free  ex- 
ercise thereof;  and  to  the  citizens  of  Virginia  by  the  bill 
of  rightaf,^  which  declares,  *tihat  religion,  or  the  duty 
which  we  owe  to  our  Creator,  and  the  manner  of  discharg- 
ing it,  can  be  directed  only  by  reason  and  conviction,  not 
by  force  or  violence,  and  therefore  all  men  are  equally  en- 
titled to  the  free  exercise  of  religion,  according  to  the  dic- 
tates of  conscience:  and  that  it  is  the  mutual  duty  of  all 
to  practice  christian  forbearance,  love,  and  charity,  to- 
wards each  other.'  And  further,  by  the  act  for  establish- 
ing religious  freedom,  by  which  it  is  also  declared,  'that  no 
man  shall  be  compelled  to  frequent  or  support  any  re- 
ligious worship,  place,  or  ministry,  whatsoever,  nor  shall 
be  enforced,  restrained,  molested  or  burthened  in  his  body 
or  goods,  nor  shall  otherwise  suffer  on  account  of  his  re- 
ligious opinions  or  belief ;  but  that  all  men  shall  be  free  to 
profess,  and  by  argument  maintain  their  opinions  in  mat- 
ters of  religion,  and  that  the  same  shall  in  no  wise 
diminish,  enlarge,  or  affect  their  civil  capacities.'  '^ 

"2.  Liberty  of  speech  and  of  discussion  in  all  speculative 
matters,  consists  in  the  absolute  and  uncontrollable  right 
of  speaking,  writing,  and  publishing,  our  opinions  con- 
cerning any  subject,  whether  religious,  philosophical,  or 
political ;  and  of  inquiring  into  and,  examining  the  nature 
of  truth^  whether  moral  or  metaphysical ;  the  expediency 

'  Ibid.  p.  39.  . 

*Art.  6. 

» Art.  3. 

'Art.  16.     Revised  code.  Edi.  of  1794,  p.  4. 

'  Art.  16.    Revised  code.  Edi.  of  1794.  c.  20. 


130  BLASPHEMY. 


or  inexpediency  of  all  public  measures,  with  their  tendency 
and  probable  effect;  the  conduct  of  public  men,  and  gen- 
erally every  other  subject,  without  restraint,  except  as  to 
the  injui^  of  any  other  individual,  in  his  person,  property, 
or  good  name.  Thought  and  speech  are  equally  the  im- 
mediate gifts  of  the  Creator,  the  one  being  inteiided  as  the 
vehicle  of  the  other:  they  ought,  therefore,  to  have  been 
wholly  exempt  from  the  coersion  of  human  laws  in  all 
speculative  and  doctrinal  points  whatsoever:  liberty  of 
speech  in  political  matters,  has  been  equally  proscribed  in 
almost  all  the  governments  of  the  world,  as  liberty  of  con- 
science in  those  of  religion.  A  complete  tyranny  over  the 
human  mind  could  never  have  been  exercised  whilst  the 
organ  by  which  our  sentiments  are  conveyed  to  others,  was 
free :  w^hen  the  introduction  of  letters  among  men  afforded 
a  new  mode  of  disclosing,  and  that  of  the  press,  a  more  ex- 
peditious method  of  diffusing  their  sentiments,  writing  and 
printing  also  became  subjects  of  legal  coersion;^  even  the 
expression  of  sentiments  by  pictures  and  hieroglyphics^ 
attracted  the  attention  of  the  Argus-government,  so  far  as 
to  render  such  expressions  punishable  by  law.  The  com- 
mon place  arguments  in  support  of  these  restraints  are, 
that  they  tend  to  preserve  peace  and  good  order  in  govern- 
ment; that  there  are  some  doctrines  both  in  religion  and 
politics,  so  sacred,  and  others  of  so  bad  a  tendency,  that 
no  public  discussion  of  them  ought  to  be  suffered.  To  these 
the  elegant  writer  before  referred  to,  gives  this  answer: 
*were  this  a  right  opinion,  all  the  persecution  that  has  ever 
been  practised,  would  be  justified.  For  if  it  is  a  part  of 
the  duty  of  civil  magistrates,  to  prevent  the  discussion  of 
such  doctrines,  they  must,  in  doing  this,  act  on  their  own 
judgments  of  the  nature  and  tendency  of  doctrines;  and 
consequently,  they  must  have  a  right  to  prevent  the  dis- 
cussion of  all  doctrines  which  they  think  to  be  too  sacred 
for  discussion,  or  too  dangerous  in  their  tendency;  and 
this  right  they  must  exercise  in  the  only  way  in  which  civil 
power  is  capable  of  exercising  it,  by  inflicting  penalties  on 


'  Stat.  13  and  14,  Car.  2. 
M  Blacks.    Com.  p.  150. 


U.  S.  A.  VEKSLIS  BLACKSTONE.  131 


all  who  oppose  sacred  doctrines,  or  who  maintain  perni- 
cious opinions.'  ^^ 

"In  England  during  the  existence  of  the  court  of  star 
chamber,  and  after  it's  abolition,  from  the  time  of  the  long 
parliament  to  the  year  1694,  the  liberty  of  the  press,  and 
the  right  of  vending  books,  was  restrained  to  very  narrow 
limits,  by  various  ordinances  and  acts  of  parliament;  all 
books  printed  were  previously  licensed  by  some  of  the  great 
offices  of  state,  or  the  two  universities,  and  all  foreign 
books  were  exposed  to  a  similar  scrutiny  before  they  were 
vended.  No  shopkeeper  could  buy  a  book  to  sell  again,  or 
sell  any  book,  unless  he  were  a  licensed  bookseller.  By 
these  and  other  restrictions  the  communication  of  knowl- 
edge was  utterly  subjected  to  the  control  of  those  whose 
interest  led  them  rather  to  promote  ignorance  than  the 
knowledge  of  truth.  In  1694,  the  parliament  refused  to 
continue  these  prohibitions  any  longer,  and  thereby,  ac- 
cording to  De  Lolme,^^  established  the  freedom  of  the 
press  in  England.  But  although  this  negative  establish- 
ment may  satisfy  the  subjects  of  England,  the  people  of 
America  have  not  thought  proper  to  suffer  the  freedom  of 
speech,  and  of  the  press  to  rest  upon  such  an  uncertain 
foundation,  as  the  will  and  pleasure  of  the  government. 
Accordingly,  when  it  was  discovered  that  the  constitution 
of  the  United  States  had  not  provided  any  barrier  against 
the  possible  encroachments  of  the  government  thereby  to 
be  established,  great  complaints  were  made  of  the  omis- 
sion, and  most  of  the  states  instructed  their  representa- 
tives to  obtain  an  amendment  in  that  respect ;  and  so  sen- 
sible was  the  first  congress  of  the  general  prevalence  of 
this  sentiment  throughout  America,  that  in  their  first 
session  they  proposed  an  amendment  since  adopted  by  all 
the  states  and  made  a  part  of  the  constitution;  ^that  con- 
gress shall  make  no  law  abridging  the  freedom  of  speech, 
or  of  the  press.'  ^^  And  our  state  bill  of  rights  declares, 
*that  the  freedom  of  the  press  is  one  of  the  great  bulwarks 
of  liberty,  and  cannot  be  restrained^  but  by  desjwtic  gov- 

"  Price's  Observations  on  the  American  Revolution,  p.   19. 

"Page  215. 

"Amendments  to  C.  U.  S.    Art.  3. 


132  BLASPHEMY. 


ernments.'  ^^  And  so  tenacious  of  this  right,  was  the  con- 
vention of  Virginia,  by  which  the  constitution  of  the  United 
States  was  ratified,  that  they  further  declared,  as  an  article 
of  the  bill  of  rights  then  agreed  to,  ^that  the  people  have  a 
right  to  the  freedom  of  speech,  and  of  writing  and  publish- 
ing their  sentiments;  that  the  freedom  of  the  press  is  one 
of  the  greatest  bulwarks  of  liberty,  and  ought  not  to  be 
violated.'  ^*  Nay,  so  reasonably  jealous  were  they  of  the 
possibility  of  this  declaration  being  disregarded,  as  not 
forming  a  part  of  the  constitution,  at  that  time,  that  the 
following  declaration  is  inserted  in,  and  forms  a  part  of, 
the  instrument  of  ratification,  viz.  ^That  the  powers 
granted  under  the  constitution,  being  derived  from  the 
people  of  the  United  States,  may  be  resumed  by  them, 
whensoever  the  same  shall  be  perverted  to  their  injury  or 
oppression ;  and  that,  every  power  not  granted  thereby,  re- 
mains with  them,  and  at  their  will:  that,  therefore  no 
right ;  of  any  denomination,  can  be  cancelled,  abridged,  re- 
strained, or  modified  by  the  congress,  by  the  senate,  or 
house  of  representatives,  acting  in  any  capacity;  by  the 
president,  or  any  department,  or  officer  of  the  United 
States,  except  in  those  instances  where  power  is  given  by 
the  constitution  for  those  purposes:  that  among  other  es- 
sential rights,  the  liberty  of  conscience,  and  of  the  press, 
cannot  be  cancelled,  abridged,  restrained,  or  modified,  by 
any  authority  of  the  United  States.'  ^^ 

"As  this  latter  declaration  forms  a  part  of  the  instrument 
by  which  the  constitution  of  the  United  States  became 
obligatory  upon  the  state,  and  citizens  of  Virginia ;  and  as 
the  act  of  ratification  has  been  accepted  in  that  form;  no 
principle  is  more  clear,  than  that  the  state  of  Virginia  is 
no  otherwise  bound  thereby,  than  according  to  the  very 
tenor  of  the  instrument,  by  which  she  has  bound  herself. 
For  as  no  free  state  can  be  bound  to  another,  or  to  a  num- 
ber of  others,  but  by  it's  own  voluntary  consent  and  act, 
so  not  only  the  evidence  of  that  consent,  but  the  nature  and 

"  State  Bill  of  Rights.    Art.  12. 

"Bill  of  Rights  agreed  to  by  the  convention  of  Virginia,  by  which 

the  C.  U.  S.  was  adopted  Art.  16. 
"C.  U.  S.  as  ratified  by  the  convention  of  Virginia. 


U.  S.  A.  VERSUS  BLACKSTONE.  133 

terms  of  it,  can  be  ascertained  only  by  recurrence  to  the 
very  instrument,  by  which  it  was  first  given.  And  as  the 
foregoing  declaration  not  only  constitutes  a  part  of  that  in- 
strument, but  contains  a  preliminary  protest  against  any 
extension  of  the  enumerated  powers  thereby  granted  to  the 
federal  government,  it  could  scarcely  have  been  imagined, 
that  any  violation  of  a  principle  so  strenuously  asserted, 
and  made,  as  it  were,  the  sole  ground  of  the  pragmatic 
sanction,  would  ever  have  been  attempted  by  the  federal 
government. 

"But  however  reasonable  such  an  expectation  might  have 
been,  a  very  few  years  evinced  a  determination  on  the  part 
of  those  who  then  ruled  the  public  councils  of  the  United 
•States,  to  set  at  nought  all  such  restraints.  An  act  ac- 
cordingly was  passed  by  the  congress,^^  on  the  fourteenth 
of  July,  1798,  whereby  it  was  enacted,  that  *if  any  person 
shall  write,  print,  utter  or  publish  any  false  and  malicious 
writing  against  the  government  of  the  United  States,  or 
either  house  of-  congress,  or  the  president,  with  intent  to 
defame  them,  or  either  of  them,  or  to  bring  them  or  either 
of  them  into  contempt,  or  disrepute;  or  to  excite  against 
them  or  either  of  them,  the  hatred  of  the  good  people  of 
the  United  States,  then  such  x)erson,  being  thereof  con- 
victed before  any  court  of  the  United  States  having  juris- 
diction thereof  shall  be  punished  by  a  fine  not  exceeding 
two  thousand  dollars,  and  by  imprisonment  not  exceeding 
two  years.'  The  act  was  limited  in  it's  duration  to  the 
third  day  of  March,  1801,  the  very  day  on  which  the  period 
for  which  the  then  president  was  elected,  was  to  expire; 
and,  previous  to  which  the  event  of  the  next  presidential 
election  must  be  known. 

"The  consequences  of  this  act,  as  might  have  been  fore- 
seen, were  a  general  astonishment,  and  dissatisfaction, 
among  all  those  who  considered  the  government  of  the 
United  States,  as  a  limited  system  of  government;  in  it's 
nature  altogether  federal,  and  essentially  different  from 
all  others  which  might  lay  claim  to  unlimited  powers;  or 
even  to  national,  instead  of  federal  authority.     The  con- 

^•L.  U.  S.   5  Cong.  c.  91. 


134  BLASPHEMY. 


stitutionality  of  the  act  was  accordingly  very  generally 
denied,  or  questioned,  by  them.  They  alleged,  that  it  is  to 
the  freedom  of  the  press,  and  of  speech,  that  the  American 
nation  is  indebted  for  its  liberty,  it's  happiness,  it's  en- 
lightened state,  nay  more,  for  it's  existence.  That  in  these 
states  the  people  are  the  only  sovereign :  that  the  govern- 
ment established  by  themselves,  is  for  their  benefit;  that 
those  who  administer  the  government,  whether  it  be  that 
of  the  state,  or  of  the  federal  union,  are  the  agents  and 
servants  of  the  people,  not  their  rulers  or  tyrants ....  That 
these  agents  must  be,  and  are,  from  the  nature  and  prin- 
ciples of  our  governments,  responsible  to  the  people,  for 
their  conduct.  That  to  enforce  this  responsibility,  it  is  in- 
dispensibly  necessary  that  the  people  should  inquire  into 
the  conduct  of  their  agents ;  that  in  this  inquiry,  they  must, 
or  ought  to  scrutinize  their  motives,  sift  their  intentions, 
and  pentrate  their  designs;  and  that  it  was  therefore,  an 
unimpeachable  right  in  them  to  censure  as  well  as  to  ap- 
plaud; to  condemn  or  to  acquit;  and  to  reject,  or  to  em- 
ploy them  again,  as  the  most  severe  scrutiny  might  advise. 
That  as  no  man  can  be  forced  into  the  service  of  the  people 
against  his  own  will  and  consent ;  so  if  any  man  employed 
by  them  in  any  office,  should  find  the  tenure  of  it  too  severe, 
because  responsibility  is  inseparably  annexed  to  it,  he 
might  retire :  if  he  can  not  bear  scrutiny,  he  might  resign : 
if  his  motives,  or  designs,  will  not  bear  sifting;  or  if  cen- 
sure be  too  galling  to  his  feelings,  he  might  avoid  it  in  the 
shades  of  domestic  privacy.  That  if  flattery  be  the  only 
music  to  his  ear,  or  the  only  balm  to  his  heart ;  if  he  sick- 
ened when  it  is  withheld,  or  turned  pale  when  denied  him ; 
or  if  power,  like  the  dagger  of  Macbeth,  should  invite  his 
willing  imagination  to  grasp  it,  the  indigation  of  the  people 
ought  immediately  to  mark  him,  and  hurl  him  from  their 
councils,  and  their  confidence  forever.  That  if  this  abso- 
lute freedom  of  inquiry  may  be,  in  any  manner,  abridged, 
or  impaired  by  those  who  administer  the  government,  the 
nature  of  it  will  be  instantly  changed  from  a  federal  union 
of  representative  democracies,  in  which  the  people  of  the 
several  states  are  the  sovereign,  and  the  administrators  of 
the  government  their  agents,  to  a  consolidated  oligarchy. 


U.  S.  A.  VERSUS  BLACKSTONE.  135 

aristocracy,  or  monarchy,  according  to  the  prevailing  ca- 
price of  the  constituted  authorities,  or  of  those  who  may 
usurp  them.  That  where  absolute  freedom  of  discussion 
is  prohibited,  or  restrained,  responsibility  vanishes.  That 
any  attempt  to  prohibit,  or  restain  that  freedom,  may  well 
be  construed  to  proceed  from  conscious  guilt.  That  the 
people  of  America  have  always  manifested  a  most  jealous 
sensibility,  on  the  subject  of  this  inestimable  right,  and 
have  ever  regarded  it  as  a  fundamental  principle  in  their 
government,  and  carefully  engrafted  in  the  constitution. 
That  this  sentiment  was  generated  in  the  American  mind, 
by  an  abhorrence  of  the  maxims  and  principles  of  that  gov- 
ernment whicli  they  had  shaken  off,  and  a  detestation  of 
the  abominable  persecutions,  and  extrajudicial  dogmas, 
of  the  still  odious  court  of  star-chamber;  whose  tyrannical 
proceedings  and  pei'secutions,  among  other  motives  of  the 
like  nature,  prompted  and  impelled  our  ancestors  to  fly 
from  the  pestilential  government  of  their  native  country, 
to  seek  an  asylum  here;  where  they  might  enjoy,  and  their 
posterity  establish,  and  transmit  to  all  future  generations, 
freedom,  unshackled,  unlimited,  undefined.  That  in  our 
time  we  have  vindicated,  fought  for,  and  established  that 
freedom  by  our  arm®,  and  made  it  the  solid,  and  immovable 
basis  and  foundation  both  of  the  state,  and  federal  gov- 
ernment. That  nothing  could  more  clearly  evince  the  in- 
estimable value  that  the  American  people  have  set  upon 
the  liberty  of  the  press,  than  their  uniting  it  in  the  same 
sentence,  and  even  in  the  same  member  of  a  sentence,  with 
the  rights  of  conscience,  and  the  freedom  of  speech.  And 
since  congress  are  equally  prohibited  from  making  any 
law  abridging  the  freedom  of  speech,  or  of  the  press,  they 
boldly  challenged  their  adversaries  to  point  out  the  con- 
stitutional distinction,  between  those  two  modes  of  discus- 
sion, or  inquiry.  If  the  unrestrained  freedom  of  the  press, 
said  they,  be  not  guaranteed,  by  the  constitution,  neither 
is  that  of  speech.  If  on  the  contrary  the  unrestrained  free- 
dom of  speech  is  guaranteed,  so  also,  is  that  of  the  press. 
If  then  the  genius  of  our  federal  constitution  has  vested 
the  people  of  the  United  States,  not  only  with  a  censorial 
power,  but  even  with  the  sovereignty  itself ;  if  magistrates 


136  BLASPHEMY. 


are,  indeed,  their  agents:  if  they  are  responsible  for  their 
acts  of  agency;  if  the  people  may  not  only  censure  whom 
they  disapprove,  but  reject  whom  they  may  find  unworthy ; 
if  approbation  or  censure,  election  or  rejection,  ought  to 
be  the  result  of  inquiry,  scrutiny,  and  mature  delibera- 
tion ;  why,  said  they,  is  the  exercise  of  this  censorial  power, 
this  sovereign  right,  this  necessary  inquiry,  and  scrutiny 
to  be  confined  to  the  freedom  of  speech?  Is  it  because  this 
mode  of  discussion  better  answers  the  purposes  of  the  cen- 
sorial power?  Surely  not.  The  best  speech  can  not  be 
heard,  by  any  great  number  of  persons.  The  best  speech 
may  be  misunderstood,  misrepresented,  and  imperfectly 
remembered  by  those  who  are  present.  To  all  the  rest  of 
mankind,  it  is,  as  if  it  had. never  been.  The  best  speech 
must  also  be  short  for  the  investigation  of  any  subject  of 
an  intricate  nature,  or  even  a  plain  one,  if  it  be  of  more 
than  ordinary  length.  The  best  speech  then  must  be  al- 
together inadequate  to  the  due  exercise  of  the  censorial 
power,  by  the  people.  The  only  adequate  supplementary 
aid  for  these  defects,  is  the  absolute  freedom  of  the  press. 
A  freedom  unlimited  as  the  human  mind;  viewing  all 
things,  penetrating  the  recesses  of  the  human  heart,  un- 
folding the  motives  of  human  actions,  and  estimating  all 
things  by  one  invaluable  standard,  truth ;  applauding  those 
who  deserve  well;  censuring  the  undeserving;  and  con- 
demning the  unworthy,  according  to  the  measure  of  their 
demerits. 

"In  vindication  of  the  act,  the  promoters  and  supporters 
of  it,  said,^*^  that  a  law  to  punish  false,  scandalous,  and 
malicious  writings  against  the  government,  with  intent  to 
stir  up  sedition,  is  a  law  necessary  for  carrying  into  effect 
the  power  vested  by  the  constitution  in  the  government  of 
the  United  States,  and  consequently  such  a  law  as  congre^ 
may  pass.  To  which  it  was  answered,  that  even  were  the 
premises  true,  it  would  not  authorize  congress  to  pass  an 
act  to  punish  writings  calculated  to  bring  congress,  or  the 
president  into  contempt  or  disrepute.     Inasmuch  as  such 

"  See  the  report  of  a  committee  of  congress,  respecting  the  alien  and 
sedition  laws,  Feb.  25,  1799. 


U.  S.  A.  VERSUS  BLACKSTONE.  137 

contempt  or  disrepute  may  be  entertained  for  them,  or 
either  of  them,  without  incurring  the  guilt  of  sedition, 
against  the  government,  and  without  the  most  remote  de- 
sign of  opposing,  or  resisting  any  law,  or  any  act  of  the 
president  done  in  pursuance  of  any  law :  one  or  the  other 
of  which  would  seem  necessary  to  constitute  the  offence, 
which  this  argument  defends  the  right  of  congress  to 
punish,  or  prevent. 

"It  was  further  urged  in  vindication  of  the  act,  that  the 
liberty  of  the  press  consists  not  in  a  licence  for  every  man 
to  publish  what  he  pleases,  without  being  liable  to  punish- 
ment for  any  abuse  of  that  licence ;  but  in  a  permission  to 
publish  without  previous  restraint;  and,  therefore,  that  a 
law  to  restrain  the  licentiousness  of  the  press,  cannot  be 
considered  as  an  abridgment  of  its  liberty.^^ 

"To  which  it  was  answered  that  this  exposition  of  the  lib- 
erty of  the  press,  was  only  to  be  found  in  the  theoretical 
writings  of  the  commentators  on  the  English  government, 
where  the  liberty  of  the  press  rests  upon  no  other  ground, 
than  that  there  is  now  no  law  which  imposes  any  actual 
previous  restraint  upon  th^  press,  as  was  formerly  the 
case :  which  is  very  different  from  the  footing  upon  which 
it  stands  in  the  United  States,  where  it  is  made  a  funda- 
mental article  of  the  constitutions,  both  of  the  federal  and 
state  governments,  that  no  such  restraint  shall  be  imposed 

by  the  authority  of  either That  if  the  sense  of  the  state 

governments  be  wanting  on  the  occasion,  nothing  can  be 
more  explicit  than  the  meaning  and  intention  of  the  state 
of  Virginia,  at  the  moment  of  adopting  the  constitution 
of  the  United  States ;  by  which  it  will  clearly  appear  that 
it  never  was  the  intention  of  that  state  (and  probably  of 
no  other  in  the  union)  to  permit  congress  to  distinguish 
between  the  liberty  and  licentiousness  of  the  press;  or,  in 
any  manner  to  'cancel,  abridge,  restrain,  or  modify'  that 
inestimable  right. 

"Thirdly  it  was  alleged,  that  the  act  could  not  be  uncon- 
stitutional because  it  made  nothing  penal,  which  was  not 

"  See  the  report  of  a  committee  of  congress,  respecting  the  alien  and 
sedition  laws,  February  25,  1799. 


138  BLASPHEMY. 


penal  before,  being  merely  declaratory  of  the  common 
law/^  viz,  of  England. 

"To  this  it  was,  among  other  arguments,  answered.  That 
the  United  States  as  a  federal  government  have  no  com- 
mon law.  That  although  the  common  law  of  England,  is, 
under  different  modifications,  admitted  to  be  the  common 
law  of  the  states  respectively,  yet  the  whole  of  the  common 
law  of  England  has  been  no  where  introduced :  that  there 
is  a  great  and  essential  difference,  in  this  respect,  in  the 
several  states,  not  only  in  the  subjects  to  which  it  is  ap- 
plied, but  in  the  extent  of  its  application.  That  the  com- 
mon law  of  one  state,  therefore,  is  not  the  common  law  of 
another.  That  the  constitution  of  the  United  States  has 
neither  created  it,  nor  conferred  it  upon  the  federal  gov- 
ernment. And,  therefore,  that  government  has  no  power 
or  authority  to  assume  the  right  of  punishing  any  action, 
merely  because  it  is  punishable  in  England,  or  may  be  pun- 
ishable in  any,  or  all  the  states,  by  the  common  law. 

"The  essential  difference  between  the  British  government 
and  the  American  constitutions  was  moreover  insisted  on, 
as  placing  this  subject  in  the  clearest  light.  In  the  former, 
the  danger  of  encroachment  on  the  rights  of  the  people, 
was  understood  to  be  confined  to  the  executive  magistrate. 
The  representatives  of  the  people  in  the  legislature  are  not 
only  exempt  themselves,  from  distrust,  but  are  considered 
as  sufficient  guardians  of  the  rights  of  their  constituents 
against  the  danger  from  the  executive.  Hence  it  is  a  prin- 
ciple, that  the  parliament  is  unlimited  in  it's  power,  or,  in 
their  own  language,  is  omnipotent.  Hence  too,  all  the  ram- 
parts for  protecting  the  rights  of  the  x)cople,  such  as  their 
magna  charta,  their  bill  of  rights,  &c.  are  not  reared 
against  the  parliament,^  but  against  the  royal  prerogative. 
They  are  mere  legislative  precautions  against  executive 
usurpations.  Under  such  a  government  as  that,  an  exemp- 
tion of  the  press  from  previous  restraints,  by  licencers 
from  the  king,  is  all  the  freedom  that  can  be  secured  to  it, 
there:  but,  that  in  the  United  States  the  case  is  altogether 

*•  See  the  report  of  a  committee  of  congress,  respecting  the  alien  and 
sedition  laws,  February  25,  1799. 


U.  S.  A.  VERSUS  BLACKSTONE.  139 

different.  The  people,  not  the  government,  possess  the  ab- 
solute sovereignty.  The  legislature,  no  less  than  the  execu- 
tive, is  under  limitations  of  power.  Encroachments  are 
r^arded  as  possible  from  the  one,  as  well  as  from  the 
other.  Hence  in  the  United  States,  the  great  and  essential 
rights  of  the  people,  are  secured  against  legislative,  as  well 
as  against  executive  ambition.  They  are  secured,  not  by 
laws  paramount  to  prerogative ;  but  by  constitutions  para- 
mount to  laws.  This  security  of  the  freedom  of  the  press 
requires,  that  it  should  be  exempt,  not  only  from  previous 
restraint  by  the  executive,  as  in  Great-Britain;  but  from 
legislative  restraint  also;  and  this  exemption,  to  be  ef- 
fectual, must  be  an  exemption,  not  only  frpm  the  previous 
Inspection  of  licencers,  but  from  the  subsequent  penalty 
of  laws ....  A  further  difference  between  the  two  govern- 
ments was  also  insisted  on.  In  Great-Britain,  it  is  a 
maxim,  that  the  king,  an  hereditary,  not  a  responsible 
magistrate,  can  do  no  wrong;  and  that  the  legislature, 
which  in  two  thirds  of  it's  composition,  is  also  hereditary, 
not  responsible,  can  do  what  it  pleases.  In  the  United 
States,  the  executive  magistrates  are  not  held  to  be  in- 
fallible, nor  the  legislatures  to  be  omnipotent;  and  both 
being  elective,  are  both  responsible.  That  the  latter  may 
well  be  supposed  to  require  a  greater  degree  of  freedom  of 
animadversion  than  might  be  tolerated  by  the  genius  of 
the  former.  That  even  in  England,  notwithstanding  the 
general  doctrine  of  the  common  law,  the  ministry,  who  are 
responsible  to  impeachment,  are  at  all  times  animadverted 
on,  by  the  press,  with  peculiar  freedom.  That  the  practice 
in  America  must  be  entitled  to  much  more  respect:  being 
in  most  instances  founded  upon  the  express  declarations 
contained  in  the  respective  constitutions,  or  bill  of  rights 
of  the  confederated  states. ^^  That  even  in  those  states 
where  no  such  guarantee  could  be  found,  the  press  had  al- 

**See  the  Virginia  bill  of  rights,  Art.  12.  Massachusetts,  Art.  16. 
Pennsylvania,  Art.  12.  Delaware,  Art.  23.  Maryland,  Art.  38. 
North-Carolina,  Art.  15.  South-Carolina,  Art.  43.  Georgia,  Art.  61. 
The  constitution  of  Pennsylvania,  Art.  35,  declares,  "That  the  print- 
ing presses  shall  be  free  to  every  person  who  undertakes  to  examine 
the  proceedings  of  the  legislature  or  any  part  of  the  government. 
And  the  bill  of  rights  of  Vermont,  Art.  15,  is  to  the  same  effect. 


140  BLASPHEMY. 


ways  exerted  a  freedom  in  canvassing  the  merits,  and 
measures  of  public  men  of  every  description,  not  confined 
to  the  limits  of  the  common  law.  That  on  this  footing  the 
press  has  stood  even  in  those  states,  at  least,  from  the 
period  of  the  revolution. 

"The  advocates  and  supporters  of  the  act  alleged, 
fourthly;  That  had  the  constitution  intended  to  prohibit 
congress  from  legislating  at  all,  on  the  subject  of  the  press, 
it  would  have  used  the  same  expressions  as  in  that  part  of 
the  clause,  which  relates  to  religion,  and  religious  tests; 
whereas,  said  they,  there  is  a  manifest  difference;  it  being 
evident  that  the  constitution  intended  to  prohibit  congress 
from  legislating  at  all,  on  the  subject  of  religious  estab- 
lishments, and  the  prohibition  is  made  in  the  most  express 
terms.  Had  the  same  intention  prevailed  respecting  the 
press,  the  same  expression  would  have  been  used,  viz. 
^Congress  shall  make  no  law  respecting  the  press.'  They 
are  not,  however,  prohibited,  added  they,  from  legislating 
at  all,  on  the  subject,  but  merely  from  abridging  the  lib- 
erty of  the  press.  It  is  evident,  therefore,  said  they,  that 
congress  may  legislate  respecting  the  press :  may  pass  laws 
for  it's  regulation,  and  to  punish  those  who  pervert  it  into 
an  engine  of  mischief,  provided  those  laws  do  not  abridge 
it's  liberty.  A  law  to  impose  previous  restraints  upon  the 
press,  and  not  one  to.  inflict  punishment  on  wicked  and  ma- 
licious publications,  would  be  a  law  to  abridge  the  liberty 
of  the  press.^^ 

"To  this  it  was  answered,  that  laws  to  regulate,  must, 
according  to  the  true  interpretation  of  that  word,  impose 
rules,  or  regulations,  not  before  imposed;  that  to  impose 
rules  is  to  restrain ;  that  to  restrain  must  necessarily  im- 
ply an  abridgment  of  some  former  existing  rights,  or 
power:  consequently,  when  the  constitution  prohibits  con- 
gress from  making  any  law  abridging  the  freedom  of 
speech,  or  of  the  press,  it  forbids  them  to  make  any  law 
respecting  either  of  these  subjects.  That  this  conclusion 
was  an  inevitable  consequence  of  the  injunction  contained 

"  See  the  report  of  a  committee  of  congress,  to  whom  were  referred 
several  petitions  for  the  repeal  of  the  alien  and  sedition  laws.  Feb- 
ruary 25,  1799. 


U.  S.  A.  VERSUS  BLACKSTONE.  141 

in  the  amendment,  unless  it  could  be  shown,  that  the  ex- 
isting restTiiints  upon  the  freedom  of  the  press  in  the 
United  States,  were  such  as  to  require  a  remedy,  by  a  law 
regulating  (but  not  abridging)  the  manner  in  which  it 
might  be  exercised  with  greater  freedom  and  security.  A 
supposition,  which  it  was  believed  no  person  would  main- 
tain. That  the  necessary  consequence  of  these  things  is, 
that  the  amendment  was  meant  as  a  positive  denial  to  con- 
gress, of  any  power  whatever,  on  the  subject. 

"As  an  evidence  on  this  subject,  which  must  be  deemed 
absolutely  conclusive,  it  was  observed.  That  the  proposi- 
tion of  amendments  made  by  congress,  is  introduced  in  the 
following  terms :  *The  conventions  of  a  number  of  states, 
having,  at  the  time  of  their  adopting  the  constitution,  ex- 
pressed a  desire,  in  order  to  prevent  misconstruction,  or 
abuse  of  its  powers,  that  further  declaratory  and  restric- 
tive clauses  should  be  added ;  and,  as  extending  the  ground 
of  public  confidence  in  the  government,  will  best  ensure 
the  beneficent  ends  of  it^s  institution :'  which  affords  the 
most  satisfactory  and  authentic  proof,  that  the  several 
amendments  proposed,  were  to  be  considered  as  either 
declaratory,  or  restrictive;  and  whether  the  one  or  the 
other,  as  corresponding  with  the  desire  expressed  by  a 
number  of  states,  and  as  extending  the  ground  of  public 
confidence  in  the  government.  That  under  any  other  con- 
struction of  the  amendment  relating  to  the  press,  than 
that  it  declared  the  press  to  be  wholly  exempt  from  the 

power  of  congress the  amendment  could  neither  be  said 

to  correspond  with  the  desire  expressed  by  a  number  of 
the  states,  nor  be  calculated  to  extend  the  ground  of  public 
confidence  in  the  government.  Nay  more;  that  the  con- 
struction employed  to  justify  the  'Sedition  Act,'  would 
exhibit  a  phoenomenon  without  a  parrallel  in  the  political 
world.  It  would  exhibit  a  number  of  respectable  states, 
as  denying  first  that  any  power  over  the  press  was  dele- 
gated by  the  constitution;  as  proposing  next,  that  an 
amendment  to  it  should  explicitly  declare,  that  no  such 
power  was  delegated;  and  finally  as  concurring  in  an 
amendment  actually  recognizing,  or  delegating  such  a 
power. 


142  BLASPHEMY. 


"But,  the  part  of  the  constitution  which  seems  to  have 
been  most  recurred  to,  and  eveu  relied  on,  in  defence  of  the 
act  of  congress,  is  the  last  clause  of  the  eighth  section  of 
the  first  article,  empowering  congress  ^to  make  all  laws 
which  shall  be  necessary  and  proper  for  carrying  into  exe- 
cution the  foregoing  powers,  and  all  other  powers  vested 
by  the  constitution  in  the  government  of  the  United  States, 
or  in  any  department  or  officer  thereof.'  22 

"To  this  it  was  answered,  that  the  plain  import  of  that 
clause  is,  that  congress  shall  have  all  the  incidental,  or  in- 
strumental powers,  necessary  and  proper  for  carrying  into 
execution  all  the  express  powers ;  whether  they  be  vested  in 
the  government  of  the  United  States,  more  collectively,  or 
in  the  several  departments,  or  officers  thereof.  That  it  is 
not  a  grant  of  new  powers  to  congress,  but  merely  a  decla- 
ration, for  the  removal  of  all  uncertainty,  that  the  means 
of  carrying  into  execution,  those  otherwise  granted,  are 
included  in  the  grant.  Whenever,  therefore,  a  question 
arises  concerning  the  constitutionality  of  a  particular 
power,  the  first  question  is,  whether  the  power  be  expressed 
in  the  constitution.  If  it  be,  the  question  is  decided.  If  it 
be  not  expressed,  the  next  inquiry  must  be,  whether  it  is 
properly  incidental  to  an  express  power,  and  necessary  to 
its  execution.  If  it  be,  it  may  be  exercised  by  congress. 
If  it  be  not,  congress  cannot  exercise  it. . .  .That,  if  the 
sedition  law  be  brought  to  ibhm  kind  of  test,  it  is  not  even 
pretended  by  the  framers  of  that  act,  that  the  power  over 
the  press,  which  is  exercised  thereby,  can  be  found  among 
the  x>owers  expressly  vested  in  congress.  That  if  it  be 
asked,  whether  there  is  any  express  power,  for  executing 
which,  that  act  is  a  necessary  and  a  proper  power:  the 
answer  is,  that  the  express  power  which  has  been  selected, 
as  least  remote  from  that  exercised  by  the  act,  is  the  power 
of  ^suppressing  insurrections;'  which  is  said  to  imply  a 
power  to  prevent  insurrections,  by  punishing  whatever 
may  lead,  or  tend  to  them.    But  it  surely  cannot,  with  the 

^See  the  report  of  a  committee  of  congress,  Feb.  25,  1799;  and  the 
answer  of  the  senate  and  house  of  representatives  of  Massachusetts, 
(Feb.  9th  and  13th,  1799),  to  the  communications  from  the  state  of 
Virginia,  on  the  subject  of  the  alien  and  sedition  laws. 


U.  S.  A.  VERSUS  BLACKSTONE.  143 

least  plausibility,  be  said,  that  a  regulation  of  the  press, 
and  the  punishment  of  libels,  are  exercises  of  a  power  to 
suppress  insurrections.  That  if  it  be  asked,  whether  the 
federal  government  has  no  power  to  prevent,  as  well  as 
punish,  resistance  to  the  laws;  the  proper  answer  is,  that 
they  have  the  power,  which  the  constitution  deemed  most 
proper  in  their  hands  for  the  purpose.  That  congress  has 
power,  before  it  happens,  to  pass  laws  for  punishing  such 
resistance;  and  the  executive  and  judiciary  have  a  power 
to  enforce  those  laws,  whenever  it  does  actually  happen. 
That  it  must  be  recollected  by  many,  and  could  be  shown 
to  the  satisfaction  of  all,  that  this  construction  of  the 
terms  ^necessary  and  proper,'  is  precisely  the  construction 
which  prevailed  during  the  discussions  and  ratifications  of 
the  constitution :  and  that  it  is  a  construction  absolutely 
necessary  to  maintain  their  consistency  with  the  peculiar 
character  of  the  government,  as  possessed  of  particular 
and  defined  powers  only ;  not  of  the  general  and  indefinite 
powers  vested  in  ordinary  governments.  That  if  this  con- 
struction be  rejected,  it  must  be  wholly  immaterial, 
whetlier  unlimited  powers  be  exercised  under  the  name  of 
unlimited  powers,  or  be  exercised  under  the  name  of  un- 
limited means  of  carrying  into  execution  limited  powers. 

"To  those  who  asked,  if  the  federal  government  be  desti- 
tute of  every  authority  for  restraining  the  licentiousness 
of  the  press,  and  for  shielding  itself  against  the  libellous 
attacks  which  may  be  made  on  those  who  administer  it; 
the  reply  given  was,  that  the  constitution  alone  can  answer 
the  question:  that  no  such  power  being  expressly  given; 
and  such  a  power  not  being  both  necessary  and  proper  to 
carry  into  execution  any  express  power;  but,  above  all, 
such  a  power  being  expressly  forbidden  by  a  declaratory 
amendment  to  the  constitution,  the  answer  must  be,  that 
the  federal  government  is  destitute  of  all  such  authority. ^^ 

"In  the  preceding  sketch  of  the  arguments  used  to  demonstrate  the 
unconstitutionality  of  the  act  of  congress,  I  have  extracted  a  few  of 
those  contained  in  the  report  of  the  committee  of  the  house  of  dele- 
gates of  Virginia,  agreed  to  by  the  house,  Jan.  11,  1800,  and  after- 
wards concurred  in  by  the  senate.  This  most  valuable  document  is 
very  long,  and  is  incapable  of  being  abridged,  without  manifest 
injury. 


144  BLASPHEMY. 


"This  very  imperfect  sketch  may  be  sufficient  to  afford 
the  student  some  idea  of  the  magnitude  and  importance  of 
a  question,  which  agitated  every  part  of  the  United  States, 
almost  to  a  degree  of  convulsion :  the  controversy  not  being 
confined  to  the  closets  of  speculative  politicians,  or  to  the 
ordinary  channels  of  discussion  through  the  medium  of  the 
press ;  but  engrossing  the  attention,  and  calling  forth  the 
talents  and  exertions  of  the  legislatures  of  several  of  the 
states  in  the  union,  on  the  one  hand,  and  of  the  federal 
government,  and  all  its  branches,  legislative,  executive, 
and  judiciary,  on  the  other.  For  no  sooner  had  the  act 
passed,  than  prosecutions  were  commenced  against  indi- 
viduals in  several  of  the  states:  they  were  conducted,  in 
some  cases^  with  a  rigour,  which  seemed  to  betray  a  de- 
termination to  convert  into  a  scourge  that,  which  it  had 
been  pretended  was  meant  only  to  serve  as  a  shield. 

"The  state  of  Kentucky  was  the  first  which  took  the  act 
under  consideration,  and  by  a  resolution  passed  with  two 
dissenting  voices  only,  declared  the  act  of  congress  not 
law,  but  altogether  void,  and  of  no  force.  The  state  of 
Virginia,  though  posterior  to  her  younger  sister  in  point 
of  time,  was  not  behind  her  in  energy.  The  general  as- 
sembly at  their  first  session  after  the  passage  of  the  act, 
did  ^explicitly  and  peremptorily  declare,  that  it  views  the 
powers  of  the  federal  government,  as  resulting  from  the 
compact,  to  which  the  states  are  parties ;  as  limited  by  the 
plain  sense  and  intention  of  the  instrument  constituting 
that  compact ;  as  no  further  valid  than  they  are  authorized 
by  the  grants  contained  in  that  compact ;  and  that  in  case 
of  a  deliberate,  palpable,  and  dangerous  exercise  of  other 
powers,  not  granted  by  the  said  compact,  the  states  who 
are  parties  thereto  have  the  right,  and  are  in  duty  bound, 
to  interpose  for  arresting  the  progress  of  the  evil,  and  for 
maintaining  within  their  respective  limits  the  authorities, 
rights,  and  liberties  appertaining  to  them' ....  *That  a 
spirit  hath,  in  sundry  instances,  been  manifested  by  the 
federal  government,  to  enlarge  its  powers,  by  forced  con- 
structions of  the  constitutional  charter  which  defines 
them ;  and  to  expound  certain  general  phrases  (copied  from 
the  very  limited  grant  of  powers  in  the  former  articles  of 


U.  S.  A.  VERSUS  BLACKSTONE.  145 

confederation,  and  therefore  less  liable  to  be  misconstrued) 
so  as  to  destroy  the  meaning  and  effect  of  the  particular 
enumeration,  which  necessarily  explains  and  limits  the 
general  phrases ;  so  as  to  consolidate  the  states,  by  degrees, 
into  one  sovereignty.'  That  the  ^general  assembly  doth, 
particularly  protest  against  the  palpable  and  alarming  in- 
fractions of  the  constitution,  in  the  two  cases  of  the  alien 
and  sedition  acts,  passed  at  the  last  session  of  congress; 
the  first  of  which  exercises  a  power  no  where  delegated  to 
the  federal  government;  and  the  other  exercises,  in  like 
manner,  a  power  not  delegated  by  the  constitution;  but, 
on  the  contrary,  expressly  and  positively  forbidden  by  one 
of  the  amendments  thereto ;  a  power  which,  more  than  any 
other,  ought  to  produce  universal  alarm;  because  it  is 
levelled  against  that  right  of  freely  examining  public  char- 
acters and  measures,  and  of  free  communication  among 
the  x)eople  thereon,  which  has  ever  been  justly  deemed  the 
only  effectual  guardian  of  every  other  right.' 

"  ^That  this  state  having  by  its  convention,  which  ratified 
the  federal  constitution,  expressly  declared,  that  among 
other  essential  rights,  "the  liberty  of  conscience,  and  of 
the  press  cannot  be  cancelled,  abridged,  restrained,  or 
modified,  by  any  authority  of  the  United  States,"  and  from 
its  extreme  anxiety  to  guard  these  rights  from  every  pos- 
sible attack  of  sophistry,  or  ambition,  having,  with  other 
states,  recommended  an  amendment  for  that  purpose, 
which  amendment  was,  in  due  time,  annexed  to  the  con- 
stitution; it  would  mark  a  reproachful  inconsistency  and 
criminal  degeneracy,  if  an  indifference  were  now  shewn, 
to  the  most  palpable  violation  of  the  rights,  thus  declared 
and  secured;  and  to  the  establishment  of  a  precedent, 
which  may  be  fatal  to  the  other.' 

"  ^That  feeling  the  most  sincere  affection  for  their  sister 
states;  the  truest  anxiety  for  establishing  and  pei-petuat- 
ing  the  union ;  and  the  most  scrupulous  fidelity  to  the  con- 
stitution which  is  the  pledge  of  mutual  friendship;  and 
solemnly  appealing  *to  the  like  dispositions  of  the  other 
states,  in  confidence  that  they  will  concur  with  this  com- 
monwealth in  declaring,  (as  it  does  hereby  declare,)  that 
the  acts   aforesaid  are   unconstitutional;   and   that  the 


146  BLASPHEMY. 


necessary  and  proper  measures  will  be  taken  by  each,  for 
co-operating  with  this  state,  in  maintaining  the  authori- 
ties, rights  and  liberties,  reserved  to  the  states  respec- 
tively, or  to  the  people.'  ^^ 

"Answers  were  received  from  the  legislatures  of  seven 
states,  disapproving  of  the  resolutions  of  Virginia  and 
Kentucky,  which  had  also  been  transmitted  with  a  similar 
proposition.  The  general  assembly  of  Massachusetts, 
alone,  condescended  to  reason  with  her  sister  states;  the 
others  scarcely  paid  them  the  common  respect  that  is  held 
to  be  due  from  individuals,  to  each  other.  The  assembly 
of  Virginia  at  their  next  session,  entered  into  a  critical 
review  and  examination  of  their  former  resolutions,  and 
supported  them  by  a  train  of  arguments,  and  of  powerful, 
convincing,  and  unsophistic  reasoning,  to  which,  probably, 
the  equal  cannot  be  produced  in  any  public  document,  in 
any  country.^^  They  concluded  this  examination  and  re- 
view (which  occupied  more  than  eighty  pages)  with  resolv- 
ing, That  having  carefully  and  respectfully  attended  to 
the  proceedings  of  a  number  of  the  states,  in  answer  to 
their  former  resolutions,  and  having  accurately  and  fully 
re-examined  and  re-considered  the  latter,  they  found  it  to 
be  their  indispensable  duty  to  adhere  to  the  same,  as 
founded  in  truth,  as  consonant  with  the  constitution,  and 
as  conducive  to  its  preservation;  and  more  especially  to 
be  their  duty,  to  renew,  as  they  do  hereby  renew  their  pro- 
test against  the  alien  and  sedition  acts,  as  palpable  and 
alarming  infractions  of  the  constitution.' 

"Meantime,  petitions  had  been  presented  to  congress  for 
the  repeal  of  those  obnoxious  acts:  on  the  25th  of  Febru- 
ary, 1799,  congress  agreed  to  the  report  of  a  committee 
advising  them,  that  it  would  be  inexpedient  to  repeal  them. 
A  majority  of  four  members,  only,  prevailed  on  this  oc- 
casion. During  the  session  which  succeeded,  strenuous  ex- 
ertions were  made  for  the  continuance  of  the  act  commonly 
called  the  sedition  act,  (the  other  concerning  aliens,  hav- 
ing expired) :  After  a  severe  struggle,  the  attempt  failed, 

^  See  the  sessions  acts  of  1798,  ad  finem. 

"See  the  report  of  the  committee,  on  this  subject,  agreed  to  in  the 


house  of  delegates,  Jan.  11,  1800. 


U.  S.  A.  VERSUS  BLACKSTONE.  147 

and  the  act  was  permitted  to  expire,  at  the  same  moment 
that  put  a  i)eriod  to  the  political  importance  of  those,  for 
whose  benefit,  alone,  it  seems  to  have  been  intended. 

"We  may  now,  I  trust,  say  with  our  former  envoys  to  the 
republic  of  France :  ^The  genius  of  the  constitution  cannot 
be  overruled  by  those  who  administer  the  government. 
Among  those  principles  deemed  sacred  in  America ;  among 
those  sacred  rights,  considered  as  forming  the  bulwark  of 
their  liberty,  which  the  government  should  contemplate 
with  awful  reverence,  and  approach  only  with  the  most 
cautious  circumspection,  there  is  none  of  which  the  impor- 
tance is  more  deeply  impressed  on  the  public  mind,  than 
the  liberty  of  the  press.'  2« 

"It  may  be  asked,  perhaps:  is  there  no  remedy  in  the 
United  States  for  injuries  done  to  the  good  fame  and  rep- 
utation of  a  man ;  injuries,  which  to  a  man  of  sensibility, 
and  of  conscious  integrity,  are  the  most  grievous  that  can 
be  inflicted;  injuries,  which  when  offered  through  the 
#  medium  of  the  press,  may  be  diffused  throughout  the  globe, 
and  transmitted  to  latest  posterity;  may  render  him 
odious,  and  detestable  in  the  eyes  of  the  world,  his  country, 
his  neighbours,  his  friends,  and  even  his  own  family ;  may 
seclude  him  from  society  as  a  monster  of  depravity,  and 
iniquity;  and  even  may  deprive  him  of  sustenance,  by 
destroying  all  confidence  in  him,  and  discouraging  that 
commerce,  or  intercourse  with  him,  which  may  be  necessary 
to  obtain  the  means? 

"Heaven  forbid,  that  in  a  country  which  boasts  of 
rational  freedom,  and  of  affording  perfect  security  to  the 
citizen  for  the  complete  enjoyment  of  all  his  rights,  the 
most  valuable  of  all  should  be  exposed  without  remedy,  or 
redress,  to  the  vile  arts  of  detraction  and  slander  I  Every 
individual,  certainly,  has  a  right  to  speak  or  publish,  his 
sentiments  on  the  measures  of  government :  to  do  this  with- 
out restraint,  control,  or  fear  of  punishment  for  so  doing, 
is  that  which  constitutes  the  genuine  freedom  of  the  press. 
The  danger  justly  apprehended  by  those  states  which  in- 

"  See  the  letters   from   Messrs.   Marshall,   Binckney,  and   Gerry,   to 
Mons.  Talleyrand,  minister  of  foreign  affairs  in  France,  17^. 


148  BLASPHEMY. 


sisted  that  the  federal  government  should  possess  no 
power,  directly  or  indirectly,  over  the  subject,  was,  that 
those  who  were  entrusted  with  the  administration  might 
be  forward  in  considering  every  thing  as  a  crime  against 
the  government,  which  might  operate  to  their  own  personal 
disadvantage ;  it  was  therefore  made  a  fundamental  article 
of  the  federal  compact,  that  no  such  power  should  be  ex- 
ercised, or  claimed  by  the  federal  government;  leaving  it 
to  the  state  governments  to  exercise  such  jurisdiction  and 
control  over  the  subject,  as  their  several  constitutions  and 
laws  permit.  In  contending  therefore  for  the  absolute 
freedom  of  the  press,  and  its  total  exemption  from  all  re- 
straint, control,  or  jurisdiction  of  the  federal  government, 
the  writer  of  these  sheets  most  explicitly  disavows  the  most 
distant  approbation  of  its  licentiousness.  A  free  press, 
conducted  with  ability,  firmness,  decorum,  and  impar- 
tiality, may  be  regarded  as  the  chaste  nurse  of  genuine 
liberty ;  but  a  press  stained  with  falsehood,  imposture,  de- 
traction, and  personal  slander,  resembles  a  contaminated 
prostitute,  whose  touch  is  pollution,  and  whose  offspring 
bears  the  foul  marks  of  the  parent's  ignominy. 

"Whoever  makes  use  of  the  press  as  the  vehicle  of  his 
sentiments  on  any  subject,  ought  to  do  it  in  such  language 
as  to  show  he  has  a  deference  for  the  sentiments  of  others ; 
that  while  he  asserts  the  right  of  expressing  and  vindicat- 
ing his  own  judgment,  he  acknowledges  the  obligation  to 
submit  to  the  judgment  of  those  whose  authority  he  can- 
not legally,  or  constitutionally  dispute.  In  his  statement 
of  facts  he  is  bound  to  adhere  strictly  to  the  truth ;  for  any 
deviation  from  the  truth  is  both  an  imposition  upon  the 
public,  and  an  injury  to  the  individual  whom  it  may  re- 
spect. In  his  restrlctures  on  the  conduct  of  men,  in  public 
stations,  he  is  bound  to  do  justice  to  their  characters,  and 
not  to  criminate  them  without  substantial  reason.  The 
right  of  character  is  a  sacred  and  invaluable  right,  and  is 
not  forfeited  by  accepting  a  public  employment.  Whoever 
knowingly  departs  from  any  of  these  maxims  is  guilty  of 
a  crime  against  the  community,  as  well  as  against  the  per- 
son injured;  and  though  both  the  letter  and  the  spirit  of 
our  federal  constitution  wisely  prohibit  the  congress  of  the 


U.  S.  A.  VERSUS  BLACKSTONB.  149 

United  States  from  making  any  law,  by  which  the  free- 
dom of  speech,  or  of  the  press  may  be  exposed  to  restraint 
and  persecution  under  the  authority  of  the  federal  gov- 
ernment, yet  for  injuries  done  the  reputation  of  any  per- 
son, as  an  individual,  the  state  courts  are  always  open,  and 
may  afford  ample,  and  competent  redress,  as  the  record 
of  the  courts  of  this  commonwealth  abundantly  testify." 

This  discussion  of  Blackstone's  conception  of  mental 
constitutional  freedom  meets  every  issue  so  frankly  and 
fairly  as,"  in  that  respect,  to  make  it  a  suitable  model  for 
judicial  imitation.  This  edition  of  Blackstone,  being  pub- 
lished in  1803,  must  have  been  well  known  to  Justice  Kent 
in  1810,  when  he  decided  the  Ruggles  case.  Likewise  it 
must  have  been  familiar  to  Justice  Shaw  when  he  decided 
the  Kneeland  case.  That  both  of  them  should  have  ig- 
nored its  existence  and  its  argument,  in  deciding  so  impor- 
tant a  problem  as  the  meaning  of  constitutional  religious 
liberty,  speaks  much  more  eloquently  for  their  prejudices 
than  it  does  for  the  maturity  of  their  intellectual  processes 
or  of  their  conception  of  intellectual  honesty. 

In  Conclusion. 

In  the  foregoing  discussion  Judge  Tucker  has  given  us 
an  exposition  and  justification  of  Jefferson's  and  Vir- 
ginia's conception  of  the  intelligent  interpretation  of  con- 
stitutional intellectual  liberty,  religious  or  otherwise.  In 
Reynolds  vs.  U.  S.,^^  the  Supreme  Court  of  the  United 
States  has  practically  endorsed  it.  Another  authority 
still  higher  has  also  given  it  even  a  more  specific  approval, 
I  refer  to  the  people  of  the  United  States.  Their  interpre- 
tation of  the  constitution  is  higher  than  that  of  the  court 
because  they  created  both  the  court  and  the  constitution. 
In  the  election  of  Thomas  Jefferson  to  the  presidency  the 
dominant  issue  was  his  conception  of  constitutional  in- 
tellectual liberty  as  against  the  Tory  interpretation  of  it, 
which  latter  wOrS  a  defense  of  the  alien  and  sedition  law. 
By  the  election  of  Jefferson  on  that  issue,  the  people  of  the 
United  States  who  had  created  the  constitution,  also  de- 
clared its  meaning.     Jefferson  accordingly  pardoned  all 

"Reynolds  v.  U.  S.,  98  U.  S.  145. 


r 


150y  BLASPHEMY. 


ihe  convicts  under  the  latif^  hecause  it  was  uncon- 
stitutional and  void.  The  subsequent  return  of  all 
-fines,  by  act  of  Congress,  executed  this  popular 
interpretation  of  the  constitution  and  acknowledged 
it  upon  the  highest  plane  of  authority  that  is  pos- 
sible in  a  republic.  This  view  also  placed  the  consti- 
tution in  harmony  with  the  Continental  Congress  which 
had  previously  declared  tha/t  we  need  liberty  of  the  press 
that  ^^oppressive  officials  are  shamed  or  intimidated  into 
more  honorable  and  just  modes  of  conducting  affairs/^^ 
80  the  United  States  of  America  as  a  nation  and  in  the 
most  authoritative  ma/nner  that  is  possible,  has  repudi- 
ated Blackstone's  conception  of  mental  freedom.  Now  in- 
tellectual liberty,  according  to  this  most  authoritative  inr 
terpretation,  means  that  no  man  shall  be  punished  for  the 
expression  of  ideas  as  such,  or  their  tendency  specular 
tvcely  ascertained,  no  matter  what  they  are  or  how  ex- 
pressed, but  he  may  be  punished  for  another  resultant 
overt  act  designed  and  efficient  for  inflicting  an  actual  and 
material  injury,  as  distinguished  from  a  mere  psychologic 
tendency. 

This  interpretation  of  mental  freedom  hy 
Jefferson  and  the  American  people  was  well 
hnown  in  Connecticut  he  fore  the  adoption  of 
its  constitution.  Abraham  Bishop,  and  the 
others  who  led  the  movement  for  the  Connect 
ticut  constitution  were  avowed  supporters 
and  admirers  of  Jefferson  and  his  doctrines* 
Therefore  when  the  Connecticut  constitution 
in  1818,  provided  for  mental  freedom,  in  lan^ 
guage  even  more  plainly  and  hroadly  liber' 
tarian  than  the  Federal  constitution  it  also 
adopted  the  ideas  thereby  expressed  and  the 
people's  previous  interpretation  of  these  con* 
stitutional  guarantees.  

~  Booth  vs.  Ryecroft.  3  Wise  Rep.  183. 

■•Journal  of  the  Continental  Congress,  v.  1,  p.  108,  Edition,  1904. 


XL 

ACADEMIC  DISCUSSION  OF  THE 
MEANING  OF  FREE  SPEECH. 

In  the  preceding  discussion  reference  was  made  to  im- 
mature and  defective  intellectual  processes  as  a  means  of 
promoting  tyranny  under  the  verbal  guise  of  glorifying 
and  defining  liberty  of  speech  and  press.  It  was  shown 
that  pursuant  to  a  conscious  desire  for  restraining  in- 
tellectual liberty,  Blackstone  defined  freedom  of  the  press 
"properly  understood"  to  consist  of  the  absence  of  only 
one  mode  of  abridgment.  Accordingly,  all  other  methods 
of  abridging  the  expression  of  thought  and  feeling  are 
impliedly  consistent  with  complete  "freedom."  Our 
courts  following  this  mode  of  reasoning  have  sometimes 
Intimated  as  much. 

It  is  now  proposed  to  apply  this  defective  intellectual 
method  to  the  other  historic  modes  of  curtailing  the  trans- 
mission of  ideas.  Thus  the  short-comings  of  this  method 
will  be  made  more  evident,  and  we  will  be  led  quite  auto- 
matically to  a  synthetic  negation  of  all  abridgments  and 
to  the  focalization  of  our  attention  upon  the  achievement 
of  an  unabridged  intellectual  liberty  rather  than  upon 
the  mere  abolition  of  any  particular  restraints.  So  it  is 
believed  that  we  will  come  to  a  more  intelligent  interpreta- 
tion of  our  constitutional  purposes  than  any  which  Black- 
stone  can  supply,  and  a  more  enli^^htened  concept  of  re- 
ligious liberty  and  human  equality  of  intellectual  rights, 
than  any  that  has  been  given  us  by  those  courts  which 
read  Blackstone  into  our  constitutions. 

Liberty  and  Licensing  the  Printer. 

"The  press  being  introduced  into  this  country  [Eng- 
land] by  Henry  VII,  an  opinion  prevailed  that  it  was  part 
of  the  prerogative  of  the  King  to  govern  it,  and  that  opin- 
ion was  not  eradicated  for  many  ages.  This  was  perhaps 
not  unnatural,  the  press  being  introduced  by  the  King  and 
the  art  of  printing  being  by  his  munificence  communicated 

151 


152  BLASPHEMY. 


to  his  subjects,  and  he  having  at  first  licensed  certain  per- 
sons only  to  print.''^ 

At  that  age,  when  few  could  read  or  write,  the  impor- 
tance of  the  press  as  a  vehicle  of  thought  was  not  so  gen- 
erally understood,  perhaps  as  was  its  importance  as  a  tool 
of  business.  It  is  conceivable  that  at  this  time  persona 
would  define  liberty  of  the  press  to  consist  in  the  equal 
freedom  to  use  the  press  as  a  means  of  profitable  business. 
Of  course,  those  who  monopolized  the  use  of  the  press  as 
an  instrument  of  commerce,  did  not  preserve  for  us  any 
of  the  arguments  of  persons  who  opposed  their  monopoly. 

Even  in  our  time  there  are  those  who  think  and  write  of 
freedom  of  the  press  wholly  from  the  viewpoint  of  com- 
mercial freedom  for  the  use  of  the  printing  press  as  a  tool 
of  trade.  Here  I  have  in  mind  the  numerous  writings  of 
Wilmer  Atkinson.  He  endorses  all  existing  restrictions 
on  the  press  as  a  vehicle  of  thought,  and  seems  willing  to 
increase  these  restrictions.^  Yet  under  the  plea  of  "lib- 
erty of  the  press"  he  complains  vigorously  against  those 
post  office  regulations  which  interfere  with  his  profit  mak- 
ing in  the  publishing  business.  In  other  words  he  is  ob- 
jecting to  having  publishers  licensed  to  use  the  press  in 
connection  with  mail  privileges,  and  so  far  he  is  perfectly 
right.  As  to  the  tyranny  of  this  he  points  out  that  the 
post  office  department  has  suppressed  more  periodical  pub- 
lications than  it  has  allowed  the  use  of  second  class  mail- 
ing privileges.  Liberty  of  the  press  includes  the  negation 
of  all  that  and  much  more. 

Liberty  and  Licensing  the  Book. 

From  granting  to  a  limited  number  of  the  friends  of 
Royalty  licenses  as  a  printer's  monopoly,  the  reformation 
made  it  seem  desirable  that  the  emphasis  should  be  put 
upon  the  more  direct  control  of  the  ideas  that  were  to  be 
printed.  "In  1585  Whitgift  obtained  an  order  of  the 
Queen  that  there  should  be  no  printing-press  except  in 

*  Scarlett's  argument  in:  Memoir  of  the  right  honorable  Jame»  first 

Lord  Abinger,  p.  297. 
•The  old  battle  renewed  for  the  freedom  of  the  press.    Philadelphia. 

1907   (See  p.  52);  Also:  A' bogy  unveiled,  argument  against  the 

adoption  of    *    *    *    the  Loud  bill,  [n.  d.l 


ACADEMIC  DISCUSSION  OF  FREE  SPEECH.  153 

London  and  the  two  Universities,  and  no  book  should  be 
printed  that  had  not  been  read  by  the  Archbishop  or 
Bishop  of  London,  or  their  chaplain.  (NeaPs  Purit.  269; 
Strype's,  Whitgift,  223.)  And  yet  private  and  traveling 
presses  were  not  unknown  at  that  time,  as  was  obvious 
from  the  trial  of  Knightley,  who  favored  the  Puritan  party 
in  attacking  the  church  of  England.  (2  Camden,  Eliz.  550; 
State  Trials  1271.)  It  was  near  the  eighteenth  century 
before  printing,  which  had  previously  been  confined  to 
London,  became  generally  practiced  in  the  country  towns. 
Ghent's  Life,  20."^ 

Thus  came  the  transition  from  licensing  the  printer,  to 
a  licensing  of  the  book.  The  freedom  of  the  press  as  an 
instrument  of  commerce  could  be  thus  enlarged,  without 
the  least  enlargement  of  intellectual  freedom.  Under  this 
new  dispensation  another  definition  of  freedom  of  the 
press  might  be  attempted. 

Manifestly  from  this  point  of  view  one  might  indulge 
in  extravagant  eulogies  of  freedom  of  the  press  as  did 
Blackstone  and  in  our  day  Wilmer  Atkinson,  and  then 
perhaps  paraphrase  Blackstone  and  define  it  something 
like  this :  ^Xiberty  of  the  press  is  indeed  essential  to  the 
nature  of  a  free  state ;  but  it  consists  in  laying  no  previous 
restraint  upon  its  use  as  a  tool  or  trade,  and  not  in  free- 
dom from  censure  for  the  publication  of  criminal  matter 
when  published.  Every  free  man  has  an  undoubted  right 
to  own  a  printing  machine  if  he  pleases.  To  forbid  this 
is  contrary  to  the  freedom  of  the  press ;  but  if  he  publishes 
what  is  improper,  mischievous  and  illegal  because  disap- 
proved by  the  censor  he  must  take  the  consequence  of  his 
temerity.  To  subject  the  ownership  of  the  press  to  the 
restrictive  power  of  a  licensor  as  was  formerly  done  is  to 
subject  the  freedom  of  the  press  to  the  prejudices  and 
favoritism  of  one  man  and  make  him  the  infallible  arbiter 
as  to  who  shall  be  allowed  to  print  discussions  of  con- 
troverted points  in  learning,  religion  and  government. 
But  to  punish  any  dangerous  and  offensive  writings,  which 
upon  a  previous  fair  and  impartial  hearing  by  the  intelli- 
gent censor  shall  have  been  adjudged  of  a  pernicious  tend- 

•  Patterson,  Liberty  of  the  Press,  p.  44-45. 


154  BLASPHEMY. 


ency,  is  necessary  for  the  preservation  of  peace  and  good 
order  of  government  and  religion,  the  solid  foundation  of 
civil  liberty." 

If  one  wished  to  return  to  the  licensing  of  books,  the 
foregoing  definition  of  freedom  sounds  just  as  plausible  as 
Blackstone's  although  in  nearly  his  own  language  it  ex- 
presses the  very  antithesis  of  his  conception  of  it.  Mani- 
festly liberty  of  the  press  includes  also  something  more 
than  both  of  those  combined. 

Free  Printing  and  Restrained  Publication. 

The  licensing  act,  against  which  John  Milton  wrote,  as 
re-enacted  September  20th,  1649,  provided  among  its  vari- 
ous abridgments  of  publication  that  "no  person  whatever 
should  presume  to  send  hy  the  post,  carriers,  or  otherwise, 
or  endeavor  to  dispense,  any  unlicensed  book,"  etc.,  on 
penalty  of  forfeiture,  fine,  and  imprisonment.  In  addi- 
tion every  printer  was  required  to  give  a  bond  to  "the 
keepers  of  the  Liberties  of  England"  to  insure  against  the 
violation  of  this  licensing  act. 

Of  course  this  is  only  a  very  remote  restraint  upon  the 
liberty  of  the  press,  if  we  are  thinking  of  that  liberty  from 
the  viewpoint  of  mere  commercial  opportunity  in  the  use 
of  presses.  However,  it  is  quite  different  if  we  think  of 
liberty  of  the  press  from  the  standpoint  of  intellectual 
intercourse.  Then  to  restrain  mankind  from  transmitting 
the  printed  page  is  a  total  destruction  of  the  very  essence 
of  freedom  in  the  interchange  of  ideas  in  print.  Obviously 
the  freedom  of  the  press  as  an  educational  factor  is  still 
abridged,  even  though  not  totally  destroyed,  whenever  one 
or  more  of  the  usual  methods  of  conveying  printed  matter 
is  prohibited,  even  though  other  methods  of  communicat- 
ing ideas  still  remain.  In  either  event  intellectual  free- 
dom has  been  limited,  that  is  abridged,  and  our  constitu- 
tional guarantees  violated. 

The  same  is  obviously  true  when,  as  in  the  time  of 
Milton,  the  approved  idea  is  allowed  transmission  and  the 
conveyance  of  the  contrary  disapproved  idea  is  penalized. 
In  such  matters  one  indispensable  essence  of  intellectual 
freedom  consists  in  the  freedom  of  intercourse,  unhamp- 


ACADEMIC  DISCUSSION  OF  FREE  SPEECH.  155 

ered  by  inequalities  created  by  law.  In  other  words,  every 
legalized  inequality  of  intellectual  opportunity,  whether 
in  the  receiving  or  expressing  of  ideas,  may  then  be  viewed 
as  a  violation  of  constitutional  guarantees. 

However,  if  v/e  have  only  a  narrow  and  partial  view  of 
liberty,  or  if  we  have  an  aversion  or  fear  of  mental  freedom 
some  essential  factor  of  it  will  be  ignored  in  our  definition. 
So  do  we  always  unconsciously  unmask  our  tyrannous  de- 
sires. So  always  do  we  abridge  liberty  in  the  name  of  lib- 
erty. Thus  one  might  say:  thought  is  free.  Any  person 
can  entertain  any  thought  which  pleases  so  long  as  he 
keeps  it  within  his  own  head.  But  it  might  be  said,  no 
one  can  have  a  right  to  transmit  by  any  mode  of  common 
carriage  any  idea  suspected  of  an  ill  tendency.  Any  pun- 
ishment inflicted  for  such  conduct  is  wholly  consistent 
with  liberty  of  speech  and  of  the  press,  "properly  under- 
stood." Such  definitions  of  mental  freedom  are  always 
plausible  in  the  eyes  of  all  those  who  fear  democratic  free- 
dom, which  is  the  largest  equal  freedom  for  all  persons  of 
all  shades  of  opinion.  But  from  the  standpoint  of  a  coura- 
geous and  self-confident  democracy  which  will  demand 
the  largest  intellectual  opportunity,  liberty  of  the  press 
must  negative  all  discrimination  based  upon  a  priori  spec- 
ulations about  psychologic  tendencies.  That  is  only  an- 
other way  of  saying  that  to  inhibit  the  transmission  of 
fiome  printed  matter,  by  any  of  the  ordinary  modes  of  con- 
veyance, which  discrimination  is  made  according  to  the 
approval  or  disapproval  of  the  idea  to  be  carried  is  an 
abridgment  of  liberty  of  the  mind  and  of  the  press.  Mil- 
ton did  not  conceive  the  press  to  be  free  with  only  this  one 
restriction  removed.  That  liberty  includes  more  than  the 
absence  of  this  one  mode  of  abridgment.  It  means  the 
negation  of  all  abridgment. 

From  Prior  to  ex  Post  Facto  Censorship. 

Licensing  the  book  was  no  more  satisfactory  than  licens- 
ing the  printer.  In  1694  this  licensing  of  the  book  was 
ended  but  without  enlarging  intellectual  opportunity  one 
particle.  All  that  which  the  censors  had  formerly  disap- 
proved and  made  criminal  to  print  was  now  penalized  after 


156  BLASPHEMY. 


printing,  that  is,  at  the  point  of  distribution,  without  the 
possibility  of  getting  authoritative  advance  information 
upon  the  right  to  publish.  Thus  tyranny  had  again 
changed  the  time  and  mode  of  applying  its  censorial  au- 
thority without  in  the  least  curtailing  censorial  power. 
However,  the  demand  for  intellectual  freedom,  with  lib- 
erty of  the  press  as  one  means  thereto,  had  been  consci- 
ously formulated  and  that  demand  will  never  again  be 
silenced. 

After  the  repeal  of  the  licensing  act  the  enemies  of 
mental  liberty  glorified  the  achieved  reform  and  again 
denounced  all  further  enlargement  of  liberty  as  dangerous 
to  morality,  church,  and  state.  Of  course,  they  framed 
definitions  of  freedom  of  the  press  to  fit  their  tyrannous 
desires  and  to  counteract  the  further  demands  of  the 
friends  of  intellectual  hospitality.  Under  these  condi- 
tions Blackstone  formulated  the  English  practice  and  his 
conception  of  freedom  of  the  press.^  Others  did  likewise. 
"Each  definition  was  in  a  legal  point  of  view  complete  and 
accurate,  but  what  the  public  at  large  understood  by  the 
expression  was  something  altogether  different — ^namely, 
the  right  of  unrestricted  discussion  of  public  affairs."^ 

It  is  now  believed  that  no  person  intelligently  in  earnest 
about  insuring  intellectual  liberty  could  possibly  imagine 
the  securing  of  it,  merely  by  prohibiting  previous  restraint 
in  favor  of  an  ex  post  facto  censorship,  especially  where 
the  latter  censorship  penalized  publications  according  to 
ex  post  facto  standards  of  judgment.  Neither  of  these 
changes  enlarges  intellectual  liberty  and  the  latter  en- 
larges the  dangers  of  authors  and  publishers  by  creating 
unlimited  uncertainties  and  corresponding  potential  and 
imminent  tyrannies. 

Those  who,  like  Blackstone,  conceive  the  absence  of 
previous  restraint  to  be  the  whole  of  intellectual  liberty 
are  mistaking  a  fragmentary  means  for  an  end,  probably 
because  more  or  less  consciously  they  are  opposed  to  that 
end.    Liberty  of  the  press  includes  the  absence  of  previous 

*  Quoted  on  page  97  herein,  and  paraphrased  on  page  153. 
•History  of  the  Criminal  law  of  England,  v.  2,  p.   70-71,   second 
edition. 


ACADEMIC  DISCUSSION  OF  FREE  SPEECH.  157 

restraint,  either  by  licensing  the  press  or  licensing  the 
book,  but  it  also  includes  the  absence  of  ex  post  facto  pun- 
ishment of  all  ideas  as  such,  and  then  includes  still  more. 

Taxes  on  Knowledge. 

The  next  mode  of  abridging  intellectual  freedom  was  the 
taxing  device  which  began  in  England  in  1711.  George 
Jacob  Holyoake  describes  the  situation  thus :  "Yet  every 
newspaper  proprietor  was  formerly  treated  as  a  blas- 
phemer and  a  writer  of  sedition,  and  compelled  to  give 
substantial  securities  against  the  exercise  of  his  infamous 
tendencies;  every  papermaker  was  regarded  as  a  thief,  and 
the  officers  of  the  Excise  dogged  every  step  of  his  business, 
with  hampering,  exacting  and  humiliating  suspicion. 
Every  reader  found  with  an  unstamped  paper  in  his  pos- 
session was  liable  to  a  fine  of  £20."  Holyoake  violated  this 
law  until,  when  the  last  warrant  was  issued  against  him 
the  x>€nalties  amounted  to  |3,000,000.  So  the  fight  was 
won  for  enlarged  freedom  and  thereby  came  cheaper  news- 
papers and  books,  which  the  masses  could  better  afford 
to  buy.  The  story  of  this  interesting  fight  for  more  lib- 
erty of  the  press  needs  to  be  better  known  than  it  is.® 
A  similar  controversy  existed  in  the  American  colonies.'^ 

Here  again,  one  who  is  obsessed  with  the  means  of 
abridging  human  intercourse,  instead  of  concentrating  on 
the  object  of  intellectual  liberty,  might  easily  have  fallen 
into  the  error  of  saying  that  freedom  of  the  press  consists 
in  levying  no  special  taxes  against  the  printing  business  as 
such.  Careless  thinkers  and  those  wishing  to  find  ex- 
cuses for  explaining  away  the  beneficent  provisions  of  our 
constitutions  might  adopt  this  definition  and  thereby  seek 
to  justify  all  other  forms  of  abridging  intellectual  inter- 
course. The  intelligent  friends  of  educational  progress 
and  religious  liberty  will  never  be  tricked  into  approving 

"See:  Collet's,  Taxes  on  Knowledge,  the  story  of  their  origin  and 
repeal,  London,  1899;  also:  Patterson's  Liberty  of  the  press,  p.  57, 
for  brief  references. 

Brougham  and  Vaux,  Taxes  on  knowledge,  London,  1834; 
[Francis  Place]  A  repeal  of  the  stamp  duty  on  newspapers,  edited 
by  J.  R.  Roebuck,  London,  1855 ;  Trial  of  George  J.  Holyoake. 

'Clyde  Augustus  Duniway;  Development  of  freedom  of  press  in 
Massachusetts,  p.  120-121. 


158  BLASPHEMY. 


this  or  any  other  definition  of  freedom  which  deals  only 
with  some  one  or  two  aspects  of  tyranny,  nor  will  these 
act  as  if  this  constituted  the  whole  essence  of  liberty.  In- 
tellectual freedom  indeed  precludes  the  levy  of  special 
taxes  on  intellectual  intercourse,  but  it  precludes  also 
much  more. 

Jury  as  Judges  of  Law. 

In  the  eighteenth  century  and  before  (and  sometimes 
since),  the  judges  were  very  despotic,  especially  in  dealing 
with  those  charged  with  seditious  utterances,  against 
either  church  or  state.  The  courts  uniformly  held  that 
whether  or  not  a  given  publication  was  criminal  was  a 
question  of  law  for  the  judge.  This  was  particularly  op- 
pressive because  then  as  now,  the  criteria  of  guilt  for 
intellectual  crimes  had  little  existence  except  in  the  mind 
of  the  judges,  whose  whim,  caprice,  or  superstition  found 
ex  post  facto  expression  at  the  trial.  Thus  the  only  func- 
tion of  the  jury  was  to  determine  whether  or  not  the  de- 
fendant said  or  published  what  was  charged  against  him. 
Under  such  judges,  not  responsible  to  anyone  except 
royalty,  it  was  thought  that  even  with  the  lawless  uncer- 
tainty of  the  criteria  of  guilt  the  defendants  would  fare 
better  if  it  were  conceded  that  the  jury  had  power  to  de- 
cide the  law  as  well  as  the  facts,  or  at  least  to  render  a 
verdict  on  the  whole  issue.  The  difference  between  these 
two  propositions  is  of  course,  purely  theoretical,  and  verbal. 

This  was  the  motive  which  prompted  the  demand  for 
a  return  to  the  general  criminal  practice  wherein  juries 
return  a  general  verdict  which  unavoidably  gives  them 
power  to  judge  of  both  the  law  and  the  facts. 

In  England  the  matter  was  settled  so  far  as  libel  is  con- 
cerned by  a  declaratory  act  of  Parliament.  In  America 
the  same  issue  was  several  times  brought  before  the  courts. 
The  power  of  juries  received  skillful  defense  by  the  opinion 
of  Justice  Kent  in  People  v.  Croswell.^ 

This  inconclusive  litigation  was  followed  probably  in  all 
states  by  a  declaratory  constitutional  provision,  or  stat- 
utes.   In  Massachusetts  the  constitution  provides  that  in 


'3  Johnson's  Cases,  337-363. 


ACADEMIC  DISCUSSION  OF  FREE  SPEECH.  159 

all  criminal  cases  juries  are  judges  of  both  law  and  fact. 
In  some  constitutions  the  declaration  is  limited  to  libels. 
If  the  opinion  of  Justice  Kent  in  the  Croswell  case  is  to 
be  followed  by  courts,  as  it  seemingly  has  been  by  consti- 
tution makers  and  legislators,  then  it  would  seem  that 
even  in  the  absence  of  constitutional  provision  juries 
should  be  allowed  to  be  judges  of  law  and  fact,  at  least 
in  all  intellectual  crimes,  that  is,  without  distinction  as 
to  whether  the  offending  words  were  spoken,  written  or 
printed. 

The  first  case  of  seditious  utterance  which  Erskine  tried 
after  the  passage  of  the  Fox  Libel  act  resulted  in  a  con- 
viction. Where  then  was  the  enlargement  of  intellectual 
liberty?  In  this  connection  I  am  tempted  to  reproduce  Sir 
James  Fitzjames  Stephens'  interesting  comment,  on  Lord 
Kenyon's  eulogy  of  this  kind  of  "liberty"  of  the  press. 

"The  liberty  of  the  press  is  dear  to  England,"  said  hia 
Lordship.^  "The  licentiousness  of  the  press  is  odious  to  Eng- 
land. The  liberty  of  it  can  never  be  so  well  protected  as  by 
beating  down  the  licentiousness  ♦  ♦  ♦  J  said  that  the  liberty 
of  the  press  was  dear  to  Englishmen,  and  I  will  say  that 
nothing  can  put  that  in  danger  but  the  licentiousness  of 
the  press."  This  is  the  very  commonplace  way  of  talking, 
by  all  those  who  desire  to  conceal  their  aversion  to  the 
democracy  of  unabridged  intellectual  opportunity.  A  lit- 
tle further  on  his  Lordship  defines  liberty  of  the  press 
thus:  "It  is  neither  more  or  less  than  this,  that  a  man 
may  publish  anything  which  twelve  of  his  countrymen 
think  is  not  blamable,  but  that  he  ought  to  be  punished 
if  he  publishes  what  is  blamable."  In  this  connection  it 
might  also  be  useful  to  re-read  the  criticism  of  Blackstone 
as  made  by  Tunis  Wortman,  herein  before  republished. 

Now  comes  Sir  James  with  this  comment  on  Lord  Ken- 
yon's  remarks:  "The  definition  is  admirably  terse  and 
correct  from  a  legal  point  of  view,  but  how  does  it  distin- 
guish liberty  from  license?  If  the  definition  given  is  sub- 
stituted for  liberty  of  the  press,  the  thing  defined,  the  re- 
sult is  strange.  'The  fact  that  a  man  is  permitted  to  pub- 
lish with  impunity  anything,  which  twelve  of  his  country- 

•  R.  V.  Cuthill,  27  State  Trials,  674. 


1^0  BLASPHEMY. 


men  afterwards  regard  as  not  blamable,  is  dear  to  English- 
men, but  that  permission  can  never  be  so  well  protected, 
as  by  punishing  severely  everyone  who  miscalculates  what 
juries  will  like.'  In  other  words, — The  jury  are  ex  post 
facto  censors  of  the  press.  ^If  they  wish  to  make  the 
power  of  publishing  without  any  other  license  really  valu- 
able, they  ought  to  be  severe  censors.  A  severe  censorship 
is  the  best  guardian  of  the  liberty  of  the  press.'  A  very 
odd  conclusion,  practically  not  differing  much  from  this — 
the  press  ought  to  be  put  under  severe  censorship.  This 
may  or  may  not  be  true,  but  it  is  inconsistent  with  the 
doctrine  that  liberty  of  the  press  is  dear  to  Englishmen."^® 
To  authorize  juries  to  put  their  arbitrary  and  lawless 
check  upon  the  arbitrary  and  lawless  tendencies  of  judges 
did  not  of  necessity  enlarge  mental  freedom,  because  jurors 
often  were  dominated  by  the  same  immature  lust  for  power, 
the  same  psychologic  imperative  of  religious  and  govern- 
mental superstitions,  as  the  judges.  However,  on  rare  oc- 
casions, jurors  do  exhibit  more  sympathy  with  human 
rights  than  judges,  and  then  liberty  is  so  far  enlarged  by 
their  spasmodic  whim,  when  the  law  requires  between  the 
judge  and  jury  a  concurrence  of  opinion  as  to  the  law  of 
liberty,  before  a  conviction  can  be  secured.  Notwithstand- 
ing this,  one  must  have  strong  prejudices  against  liberty, 
or  very  immature  intellectual  processes,  if  this  one  oppor- 
tunity for  enlarging  freedom  is  mistaken  for  the  whole 
essence  of  intellectual  liberty.  To  me  this  seems  in  the 
long  run  to  have  proven  the  least  important  of  all  the  prac- 
tical steps  in  that  direction,  and  yet  in  past  centuries  it 
was  thought  highly  important.  If  there  really  existed  a 
conceded  claim  of  right  to  intellectual  liberty  or  if  the 
law  defined  the  crime  with  the  same  precision  as  murder 
is  defined,  then  there  never  could  arise  any  question  as  to 
whether  or  not  the  rules  of  censorship,  or  the  creation 
of  the  criteria  of  guilt,  was  within  the  province  of  the 
judge  or  of  the  jury,  either  to  create  or  declare.  Freedom 
of  speech  meant  much  more  than  this,  because  it  means 
the  absence  of  all  penalization  of  the  expression  of  ideas 
as  such. 

**  History  of  the  Criminal  Law  of  England,  v.  2,  p.  349. 


ACADEMIC  DISCUSSION  OF  FEEB  SPEECH.  161 


Truth  and  Criminality. 

Since  the  eighteenth  century  courts  held  logically,  but 
not  consistently,  to  the  pretense  that  to  prevent  disturb- 
ance of  the  peace  as  such,  was  the  object  of  punishing  libels 
and  slanders.  So  came  the  doctrine  that  the  greater  the 
truth  the  greater  the  libel,  since  a  bad  man  is  more  easily 
provoked  to  assault  than  a  good  one.  The  friends  of  larger 
liberty  attacked  this  doctrine  with  much  vigor  by  asserting 
the  right  to  tell  the  truth  and  prove  the  truth  in  defense 
of  a  charge  of  libel  or  slander.  Of  course  there  were  and 
still  are  varying  degrees  in  which  the  right  to  hear  and  to 
tell  the  truth  is  defended.  Again  our  definition  of  intel- 
lectual liberty  will  be  determined  by  how  much  liberty  and 
democracy  we  really  believe  in,  or  in  what  cases  we  think 
sham  and  pretense  more  sacred  or  useful  than  the  right 
of  others  to  know  every  claim  of  the  truth.  It  was  in- 
evitable from  the  nature  of  the  issue  that  truth  should  be 
held  immaterial  also  in  cases  of  blasphemy.  One  learned 
author  states  the  case  thus:  "With  regard,  however,  to 
writings  affecting  the  Christian  religion,  supposing  it  to 
be  considered  as  the  object  libelled,  it  is  to  be  observed, 
that,  here,  the  test  of  truth  and  foundation  in  reason  of 
the  matter  published,  fails  us  as  a  guide  for  ascertaining, 
in  all  cases,  the  motive  of  the  publishers;  the  Christian 
religion  not  being  demonstrable  by  mere  human  reason, 
either  to  be  true  or  to  be  false.  Faith  in  its  truth  is  neces- 
sary to  its  belief;  and  if  a  man  have  such  faith,  no  power 
of  mere  human  reason  can  prove  that  his  faith  is  mis- 
pleace."  ^^ 

In  the  eighteenth  century,  one  who  was  attempting  to 
enlarge  intellectual  liberty  and  should  confuse  this  one 
means  to  larger  liberty  with  the  end  of  a  complete  liberty, 
might  say  as  did  Justice  Kent :  "Liberty  of  the  press  con- 
sists in  the  right  to  publish  with  impunity,  truth,  with 
good  motives  and  for  justifiable  ends.''  That  doctrine  did 
establish  one  aid  to  freedom,  so  far  as  personal  libels  were 
concerned,  and  it  did  repudiate  the  contention  that  peace 
as  such  was  the  end  sought  in  prosecutions  for  libel.  How- 

"  George,  Treatise  on  Libel,  355. 


162  BLASPHEMY. 

ever,  it  has  no  practical  value  in  dealing  with  academic 
questions  of  ethics  and  government  or  the  metaphysical 
speculations  about  religion  and  its  morality.  What  good 
would  it  have  done  for  Taylor,  or  Ruggles  to  be  conceded 
the  right  to  prove  that  the  Holy  Ghost  never  took  the 
Virgin  Mary  to  the  town  clerk  of  Jerusalem  to  secure  a 
marriage  license?  Or  the  right  of  Legat  to  prove  the  truth 
of  his  claim  that  Jesus  is  not  to  be  prayed  to?  Or  the 
right  of  Mockus  to  prove  by  seeming  contradictions  of 
Holy  Writ,  that  the  source  of  its  inspiration  was  not  pos- 
sessed of  absolute  veracity?  Such  matters  are  not  prov- 
able by  such  evidence  as  is  usually  accepted  by  courtft, 
or  by  those  dealing  with  the  material  universe  according 
to  the  scientific  method.  For  that  reason  alone  all  prob- 
lems of  religion,  no  matter  in  what  vocabulary  these  are 
discussed,  were  constitutionally  declared  beyond  the  juris- 
diction of  the  magistrate.  In  such  matters  the  friends 
of  freedom  denied  that  the  magistrate  had  any  authority 
to  make  inquiry  into  the  truth  or  utility  of  what  was 
taught. 

Conceding  the  right  to  prove  the  truth  of  one's  state- 
ment as  a  special  defense  under  particular  circumstances, 
or  even  as  a  complete  defense  to  all  intellectual  crimes, 
enlarges  freedom  somewhat,  but  woe  be  unto  us  if  that 
is  to  be  treated  as  the  end  and  all  of  liberty  for  human 
intercourse.  Liberty  of  speech  and  of  the  press  must  in- 
clude even  more  than  that,  especially  where  blasphemy  is 
the  charge. 

Resume  on  Definitions. 

We  have  seen  that  liberty  may  be,  and  has  been  defined 
in  various  ways,  according  to  that  particular  means  of 
abridging  intellectual  liberty  which  for  the  moment  ob- 
sessed the  attention  of  the  definer.  Thus  freedom  of  the 
press  may  be  said  to  consist  in  the  greatest  equal  liberty 
to  use  the  press  as  an  instrument  of  commerce,  accompa- 
nied by  any  restriction  upon  its  use  as  a  factor  of  intel- 
lectual freedom.  So  also  we  may  have  thought  of  intel- 
lectual liberty  as  being  merely  the  absence  of  some  par 
ticTilar  mode  of  its  abridgment,  such  as  previous  re 
fitraint;  or  again,  such  as  the  absence  of  special  taxes  or. 


ACADEMIC  DISCUSSION  OF  FREE  SPEECH.  163 

the  communication  of  ideas;  or  as  consisting  of  the  right  ' 
to  tell  the  truth,  with  or  without  good  motives  or  justi- 
fiable ends ;  and  by  still  another  it  is  said  to  rest  in  a  jury 
entitled  to  decide  questions  of  law  as  well  as  of  fact;  or 
intellectual  liberty  may  be  defined  as  it  was  conceived  by 
English  tyrants  after  the  licensing  acts,  as  mere  freedom 
from  previous  censorship;  or  later  as  conceived  by  Jeffer- 
son, and  others  who  framed  our  American  constitutions, 
as  including  all  of  these  factors  and  the  absence  also  of 
ex  post  facto  censorship.  Any  of  these  definitions,  except 
that  of  Jefferson  and  his  followers,  leave  all  but  one  means 
of  abridging  intellectual  intercourse  at  the  option  of  aj 
ruling  power.  However,  free  speech  defined  from  the  view- 
point of  securing  unabridged  intellectual  liberty  cannot 
consist  merely  in  the  negation  of  any  particular  mode 
or  modes  of  abridging  it,  with  a  conceded  claim  of  rightful 
authority  to  accomplish  the  same  end  by  all  other  means 
of  abridgment.  That  is  merely  a  limited  tolerance,  to  be 
withdrawn  at  will.  Constitutional  intellectual  liberty  as 
to  religion  can  only  mean  the  denial  of  legal  authority  to 
resort  to  any  of  these  or  any  other  modes  of  abridging 
mental  freedom,  so  long  as  an  expressed  idea  about  a 
religious  subject  matter  is  the  only  factor  involved.  If  the 
framers  of  our  constitutions  had  intended  less  than  this, 
they  would  have  enumerated  the  particular  abridgments 
which  alone  they  intended  to  prohibit. 

Manifestly  if  we  are  to  enjoy  the  blessings  of  a  constitu- 
tion like  that  of  Connecticut,  which  guarantees  a  separa- 
tion of  church  and  state,  and  guarantees  that  none,  be- 
cause of  their  religious  opinions,  are  to  have  any  discrimi- 
nation or  preference  exercised  for  or  against  them  (so 
precluding  any  special  privileges  or  protection  from  scoff- 
ing or  ridicule) ;  and  guarantees  that  every  citizen  may 
freely  speak,  write  and  publish  his  sentiments  on  all  sub- 
jects; if  no  valid  law  can  ever  be  passed  to  curtail  or  re- 
strain the  liberty  of  speech  or  of  the  press,  then  obviously 
all  modes  of  abridgment  must  be  destroyed — including 
ex  post  facto  censorship  as  well  as  previous  censorship. 

If  then  we  would  acquire  a  synthetic  concept  of  religious 
liberty  perhaps  we  had  better  direct  our  attention  away 


164  BLASPHEMY. 

from  the  old  past  or  new  future  methods  of  abridging  in- 
tellectual liberty  and  focus  our  interest  uiK>n  abolishing 
the  jurisdiction  of  government  to  deal  with  mere  religious 
discussion  and  upon  repudiating  the  excuses  upon  which 
that  jurisdiction  had  formerly  been  claimed.  This  is  ex- 
actly what  our  constitutions  sought  to  do.  This  will  be 
still  more  evident  just  as  soon  as  we  get  away  from  our 
quarrels  about  the  acquired  meaning  of  constitutional 
phrases,  to  understand  the  real  purposes  sought  to  be  ac- 
complished, not  only  the  purposes  of  those  who  recorded 
the  American  verdict  in  our  fundamental  law,  but  also  of 
their  predecessors,  who  fought  the  battles  for  intellectual 
freedom  through  the  preceding  centuries.  Without  the 
latter  that  verdict  for  liberty  would  never  have  been  writ- 
ten. Without  consulting  the  issues  of  that  previous  con- 
troversy our  constitutions  will  rarely  be  properly  under- 
stood. 


XII. 

THE  ORIGIN,  MEANING  AND  SCOPE 
OF  BLASPHEMY. 

We  now  come  to  the  task  of  discussing  the  meaning  of 
blasphemy  and  the  scope  of  blasphemy  laws.  Aside  from 
curiosity,  this  and  the  immediately  succeeding  narrative 
of  prosecutions  have  a  very  important  bearing  upon  the 
constitutional  aspects  of  our  problem.  By  exhibiting  the 
scope,  the  origin  and  the  changing  theories  of  blasphemy 
prosecution  we  will  be  making  clear  what  it  was  that  the 
framers  of  our  constitutions  meant  to  destroy.  Also  it 
will  exhibit  the  uncertainty  of  the  statutory  word  "blas- 
pheme." Thus  we  will  come  to  a  better  understanding  of 
constitutional  religious  and  intellectual  freedom.  So  we 
also  prepare  the  way  for  an  argument  for  the  unconstitu- 
tionality of  blasphemy  laws  upon  the  ground,  of  their  un- 
certainty. A  comparison  of  the  various  ancient  concep- 
tions of  blasphemy  shows  them  all  to  have  had  practical 
application  under  the  common  law  of  England. 
Plato  on  Blasphemy. 

All  our  laws  concerning  blasphemy  are  the  outgrowth 
of  the  canon  law,  and  this  in  turn  was  but  a  new  formula- 
tion of  what  had  preceded  the  advent  of  Christ.  Since 
Erasmus  called  Plato  a  Christian  before  Christianity  ^  we 
may  begin  with  the  latter. 

"Plato  distinguished  Blasphemy  into  three  sorts.  I. 
Denying  the  Being  of  a  God.  II.  Denying  his  Providence, 
or  superintendency  of  Human  Affairs.  And  III.  Pretend- 
ing that  by  Gifts  and  Sacrifices,  he  may  be  bribed  into  a 
Toleration  of  wickedness;  or  in  other  words,  that  God  is 
not  infinitely  holy  and  an  irreconcilable  Enemy  to  Sin."^ 
The  Canon  Law  on  Blasphemy. 

The  most  widely  used  alphabetical  work  of  references 

*  Revelation  the  best  foundation  of  morals,  v.  2,  p.  107. 
'Disney,  John;  A  view  of  ancient  laws  against  immorality  and  pro- 
faneness;    *    *    ♦    Cambridge,  1729,  p.  204. 

165 


166  BLASPHEMY. 


covering  Canon  Law  and  Moral  Theology,  current  in  Ger- 
many in  the  early  16th  Century,  is  the  Summa  Angelica. 
It  is  the  work  of  the  Blessed  Angelo  Carle tti  di  Chuvasso, 
a  Franciscan  friar  who  died  in  1495.  The  first  edition  ap- 
peared in  1476  and  down  to  the  year  1520  it  passed 
through  31  editions.^  The  article  Blasphemia  defines 
blasphemy  as  a  certain  derogation  of  the  excellent  good- 
ness of  anyone  and  especially  of  the  Divine  goodness. 
Whoever  therefore  denies  anything  concerning  God  which 
is  proper  to  God,  or  asserts  anything  concerning  Him 
which  is  not  proper  to  Him  disparages  the  Divine  good- 
ness ;  for  God  is  the  very  essence  of  goodness.*  The  casuist 
then  goes  on  to  distinguish  blasphemy  of  heart  from  oral 
blasphemy,  and  says  that  oral  blasphemy  is  opposed  to  the 
confession  of  faith  (creed),  and  to  divine  love.  He  quotes 
the  theological  works  of  Alexander  Hales  and  of  Thomas 
Aquinas  on  this  point. 

In  paragraph  I,  Angelus  asks  what  kinds  of  blasphemy 
there  are,  and  he  answers  according  to  St.  Ambrose,  there 
are  two.  First,  when  there  is  attributed  to  God  that  which 
is  not  proper  to  God,  and  second,  when  there  is  taken  away 
from  God  that  which  is  proper  to  God.  To  these  two  a 
third  should  he  added,  according  to  St.  Thomas  Aquinas, 
that  when  there  is  attributed  to  the  Creature,  that  which  is 
proper  to  the  Creator  alone.  Angelus,  however,  inclines 
not  to  insist  on  these  fine  distinctions. 

In  paragraph  II,  he  asks  whether  the  sin  of  blasphemy 
may  be  forgiven.  He  says  it  may  not  be  forgiven  when  it 
was  committed  maliciously,  and  refers  to  Matthew  12,  con- 
cerning blasphemy  against  the  Holy  Ghost.  Then  he  dis- 
cusses blasphemy  against  the  Saints. 

In  paragraph  III,  he  asks  whether  the  blasphemous  man 
may  be  absolved  by  his  own  Priest. 

In  paragraph  IV,  he  deals  with  the  case  of  blasphemous 
words  in  public.  Here  he  cites  Panormitanus  and  Hosti- 
ensis  in  their  comments  on  the  passage  of  the  Canon  Law 
which  is  fundamental  for  the  treatment  of  blasphemy. 

'Catholic  Encyclopedia,  v.  1,  p.  484. 

•According  to  Dionisius  the  Areopagite  on  the  Divine  Names. 


THE  ORIGIN  AND  SCOPE  OF  BLASPHEMY.  167 

This  is  c.  2.  ffl.  De  Maledicis  5,  26.^  It  begins:  "We  de- 
cree that  if  anyone  should  have  presumed  to  loosen  his 
tongue  publically  in  blasphemy  against  God  or  any  of  his 
Saints,  and  especially  of  the  Blessed  Virgin,  that  he  should 
thereby  be  punished."  The  gloss  of  the  Canon  Law  on  this 
chapter  refers  under  the  word  blasphemy  to  the  fact  that 
it  is  far  more  serious  to  insult  the  eternal  than  the  tem- 
poral majesty.  By  it,  it  means  that  it  is  far  more  danger- 
ous to  blaspheme  against  God  than  to  commit  the  crimen 
laesse  majestatis.^ 

Disney  on  Blasphemy. 

John  Disney,  the  Vicar  of  St.  Mary's  in  Nottingham,  in 
1729  published  this  definition:  "Blasphemy  in  its  strict 
and  proper  Sense  is  to  deny,  reproach,  or  insult  the  Being 
and  Attributes  of  God,  the  person  or  character  of  Christ, 
the  Operations  of  the  Holy  Spirit,  or  the  truth  and  Author- 
ity of  the  Scriptures;  to  ascribe  to  any  of  these  what  is 
unworthy  of  them,  and  degrading;  or  to  any  Creature,  an 
Excellence  which  only  can  belong  to  God."  ^ 

Although  the  wording  here  is  a  little  more  precise,  the 
obvious  purpose,  I  think,  of  this  statement  is  essentially 
the  same  as  that  of  Plato  and  the  Canon  Law.  In  making 
it  more  concrete  we  are  already  helped  to  see  the  uncer- 
tainty of  the  metaphysical  speculations  which  one  may  not 
deny.  For  example :  What  are  the  operations  of  the  Holy 
Ghost?  Are  Billy  Sunday's  performances  and  the  war 
included?  What  are  the  "attributes  of  God"  or  of  whose 
conception  of  God,  that  one  may  not  deny  or  reproach? 
May  we  deny  either  the  Unitarian,  Universalist,  Trinitar- 
ian, Mormon  or  Mohammedan  conceptions  of  God?  Let  us 
be  reminded  that  there  are  unnumbered  varieties  of  these 
conceptions.  Whose  conception  of  the  "character  of 
Christ"  is  it  that  wie  may  not  deny?  What  degree  of  sen- 
sitiveness will  determine  what  constitutes  a  "reproach"  or 
an  "insult?"     By  whose  standard  of  "honor"  is  alleged 

'Corpus  juris  canonici,  ed.  Friedberg  II.  826  b. 
•For  this  statement  of  the  canon  law  I  am  indebted  to  Prof.  Wood- 
bridge. 

'Disney,  John.    A  view  of  ancient  laws  against  immorality  and  pro- 
faneness,  p.  201. 


168  BLASPHEMY. 


blasphemy  to  be  judged?  Such  queries  can  manifestly  be 
multiplied  indefinitely.  It  is  the  very  vagueness  which 
makes  this  law  so  all  inclusive  that  under  it  anything  and 
everything  can  be  penalized  which  offends  the  most  prim- 
itive and  childish  religious  feelings.  In  this  we  see  the 
reason  and  the  justification  of  the  statement  that  all  par- 
ticular statutes  upon  the  subject  of  religion  were  merely 
declaratory  of  the  common  law.^ 

Blackstone  on  Offenses  Against  Eeligion. 

Blackstone  of  course  wrote  under  the  conditions  when  a 
union  of  church  and  state  prevailed.  By  bearing  this  unity 
in  mind  it  will  be  clear  that  all  which  follows  comes  clearly 
within  the  canon  law  concerning  blasphemy.  One  really 
should  re-read  the  whole  of  his  chapter  on  "Offenses  against 
God  and  Religion''  to  understand  what  was  sought  to  be 
destroyed  by  our  constitutional  provisions  for  a  separation 
of  church  and  state,  and  for  intellectual  equality  and  lib- 
erty. Because  Blackstone's  Commentaries  are  everywhere 
accessible,  we  will  here  content  ourselves  with  just  a  few 
extracts.  He  classifies  offenses  into  several  groups  and 
then  discusses  each  separately.    Then  he  proceeds  thus : 

"First  then,  of  such  crimes  and  misdemeanors,  as  more 
immediately  offend  Almighty  God,  by  openly  transgress- 
ing the  precepts  of  religion  either  natural  or  revealed ;  and 
immediately  by  their  bad  example  and  consequences  the 
law  of  society,  which  constitutes  that  guilt  in  the  action 
which  human  tribunals  are  to  censure." 

Criminal  heretics  are  defined  as  "teachers  of  erroneot^ 
opinions  contrary  to  the  faith  and  blessed  determinations 
of  the  holy  church."  Also  this  is  criminal :  "Any  person 
educated  in  the  Christian  religion,  or  professing  the  same, 
[who]  shall  by  writing,  printing,  teachings,  or  advised 
speaking,  deny  any  one  of  the  persons  of  the  holy  Trinity 
tote  God  or  maintain  that  there  are  more  gods  than  one, 
he  shall  undergo  the  same  penalties  and  incapacities"  as 
apply  to  apostates. 

"Another  species  of  offenses  against  religion  are  those 
which  affect  the  established  church.    And  these  are  either 

■  Blackstone's  Commentaries,  vol.  4,  p.  50. 


THE  ORIGIN  AND  SCOPE  OF  BLASPHEMY.  169 

positive  or  negative:  Positive  as  by  reviling  its  ordi- 
nances; or  negative  by  nonconformity  to  its  worship.  Or 
both  of  these  in  order."  (Lord's  Supper,  Book  of  Common 
Prayer,  Liturgy,  Non-Conformist  who  absent  themselves 
through  mistaken  or  perverse  zeal.) 

"The  fourth  species  of  offenses,  therefore,  more  immedi- 
ately against  God  and  religion,  is  that  of  blasphemy 
against  the  Almighty,  hp  denying  his  being  or  providence; 
or  by  contumelous  reproaches  of  our  Saviour  Christ. 
Whither  also  may  be  referred  all  profane  scoffing  at  the 
holy  scripture,  or  exposing  it  to  contempt  and  ridicule 
♦  *  *  *.  Somewhat  allied  to  this,  though  in  an  inferior 
degree,  is  the  offense  of  profane  and  common  swearing  and 
cursing.  ♦  *  ♦  *" 

Then  he  deals  with  witchcraft  and  sorcery,  and  con- 
tinues : 

"Seventh  species  of  offenders  in  this  class  are  religions 
imi)ostors,  such  as  falsely  pretend  an  extraordinary  com- 
mission from  heaven;  or  terrify  and  abuse  the  people  with 
false  denunciation  of  judgments.  These  as  tending  to  sub- 
vert all  religion,  by  bringing  it  into  ridicule  and  contempt 
are  punishable  by  the  temporal  courts  with  fine  and  im- 
prisonment and  infamous  corporal  punishment."  ® 

In  1626,  the  King  issued  a  proclamation,  declaring: 
"That  neither  in  Doctrine  nor  Discipline  of  the  Church , 
nor  in  the  Government  of  the  State  mil  he  admit  of  the 
least  innovation/^  and,  therefore,  commanding  that 
"neither  by  Writing,  Preaching,  Printing,  Conferences,  or 
otherwise,  they  raise,  publish  or  maintain  any  other  Opin- 
ions concerning  Religion,  than  such  as  are  clearly  war- 
ranted by  the  Doctrine  and  Discipline  of  the  Church  of 
England,  established  by  authority. — ^And  enjoyneth  his 
Reverend  Archbishops  and  Bishops  in  their  several  Dio- 
ceses, speedily  to  reclaim  and  repress  all  such  spirits,  as 
shall  in  the  least  degree  attempt  to  violate  this  Bond  of 
Peace;  and  all  the  Ministers  of  Justice  were  required  to 
execute  his  Majesty's  Pious  and  Royal  pleasure  herein  ex- 
pressed ;  and  if  any  shall  take  the  boldness  to  neglect  this 

•  Blackstone's  Commentaries.     Book  4,  Chapter  4,  especially  pp.  43- 

50-55-61-62. 


170  BLASPHEMY. 


gracious  admonition,  His  Majesty  will  proceed  against 
such  offenders  with  that  severity  as  their  contempt  shall 
deserve,  that  by  their  exemplary  punishment  others  may 
be  warned,  and  that  those  that  be  studious  of  the  peace 
and  prosperity  of  this  church  and  Commonwealth  may 
bless  God  for  his  Majesty's  pious,  religious,  wise  and  graci- 
ous Government.  "^^ 

Under  the  reign  of  Henry  VIII.  "the  bloody  law  of  the 
six  articles  was  made,  which  established  the  six  most  con- 
tested points  of  popery,  transubstantiation,  communion  in 
one  kind,  the  celibacy  of  the  clergy,  monastic  vows,  the 
sacrifice  of  the  mass,  and  auricular  confession;  which 
points  were  ^determined  and  resolved  by  the  most  godly, 
study,  pain,  and  travail  of  his  majesty.'  "^^ 

"False  and  pretended  prophecies,  with  intent  to  disturb 
the  peace,  are  equally  unlawful,  and  more  penal;  as  they 
raise  enthusiastic  jealousies  in  the  people,  and  terrify 
them  with  imaginary  fears.  They  are,  therefore,  punished 
by  our  law,  upon  the  same  principle  that  spreading  of 
public  news  of  any  kind,  without  communicating  it  first  to 
the  magistrate,  was  prohibited  by  the  ancient  Gauls,  such 
false  and  pretended  prophecies  were  punished  capitally 
by  statute  1  Edw.  XI  c.  12,  which  repealed  in  the  reign  of 
Queen  Mary  (A.  D.  )  and  now  by  the  statute  of  5 

Eliz.  c.  151,  The  penalty  for  the  first  offence  is  a  fine  of 
100  £  and  one  year  imprisonment ;  for  the  second,  forfeit- 
ure of  all  goods  and  chattels  and  imprisonment  during 
life."i2 

"The  duty  and  right  of  the  civil  power,  I  repeat,  cap- 
itally to  punish  heretics,  and  blasphemers,  and  idolaters, 
(and  let  it  be  observed,  that  all  these  who  dissented  from 
the  religion  of  the  ruling  party,  were  stigmatized  as  here- 
tics, blasphemers,  or  idolators,  or  all  three  united,)  were 
as  firmly  believed  by  the  great  majority  of  the  reformers, 
as  the  New  Testament  itself.  The  solemn  league  and  cove- 
nant, originally  adopted  in  Scotland,  and  subsequently 

"  Rushworth*s,  Historical  Collection  of  private  passages  of  State, 
weighty  matters  in  law,  Remarkable  proceedings,  etc.  Lond.  1721, 
V.  1,  p.  412. 

"  Blackstone.    Commentaries,  v.  4,  p.  47. 

"  Blackstone's  Commentaries,  v,  4,  p.  149,  1st  edition. 


THE  ORIGIN  AND  SCOPE  OF  BLASPHEMY.  171 

ordered  bj  the  British  Parliament,  during  the  civil  war, 
to  be  taken  by  all  the  subjects  of  England,  under  severe 
penalties,  went  to  the  extirpation  not  merely  of  "popery," 
which  was  universally  anathematized  as  rank  idolatry,  but 
of  'prelacy,'  (i.  e.  episcopacy)  'superstition,  heresy,  schism, 
and  whatsoever  shall  be  found  contrary  to  true  godliness.' 
That  is,  in  a  word,  every  thing  contrary  to  the  Westminster 
Confession  of  Faith.  On  the  23rd  of  November,  1646,  the 
parliament  'debated  upon  the  ordinance  against  blasphem- 
ies and  heresies,  and  the  PUNISHMENT  WAS  VOTED 
TO  BE  DEATH.'  "^^ 

"By  1  Eliz.  c.  2.  Sect.  9,  a  severe  Punishment  is  enacted 
for  any  Person  who  shall  in  any  Interludes,  Plays,  Songs, 
Rhimes,  or  by  other  open  Words  declare  or  speak  anything 
in  derogation,  depraving  or  despising  the  Book  of  Com- 
mon Prayer— -&c."^* 

"By  3  Jac.  1  C.  21.  Whoever  shall  use  the  name  of  the 
Holy  Trinity  profanely  or  jestingly,  in  any  stage,  play, 
interlude  or  show  shall  be  liable  to  a  penalty  of  ten 
pounds." 

"By  Will.  III.  C.  18,  sec.  17  [1689-1703]  Whoever  shall 
deny  in  his  preaching  or  writing  the  doctrine  of  the  blessed 
Trinity  shall  lose  all  benefit  of  the  act  for  granting  tolera- 
tion. Etc.  This  act,  in  addition  to  depriving  the  offender 
of  the  privileges  above  mentioned,  leaves  the  punishment 
of  the  offense,  as  for  a  misdemeanor  at  common  law."^^ 

In  short  the  whole  situation  is  summarized  by  Lord 
Holt,  in  his  Law  of  Libels,  1816,^^  under  the  heading  of 
"Offenses  against  Religion"  when  he  includes:  "All  pro- 
fane scoffing  of  the  Holy  Scripture  or  exposing  any  part 
to  ridicule  and  contempt." 

Hawkin's,  Pleas  of  the  Crown,  seventh  edition  (1795), 
uses  the  same  language  above  quoted  from  Holt.     Thus 

"  Letters  on  religious  persecution,  ♦  *  *  in  reply  to  a  libelous  at- 
tack on  the  Roman  Catholics  *  *  *  by  a  catholic  layman. 
(Mathew  Carey)  Philadelphia,  Jan.  1,  1827;  p.  40,  citing:  White- 
lock's  Memorial,  p.  232. 

"Charge  delivered  to  the  grand  jury  *  *  *  Westminster  *  *  ♦ 
June  1749  by  Henry  Fielding  Esq.    Lond.  1749.  p.  32. 

"Holt;  Law  of  Libel,  1816,  Second  Edition,  pp.  65-66. 

"Second  edition,  p.  65. 


172  BLASPHEMY. 


again  do  we  get  back  to  the  canon  law  as  the  source  and 
definition  of  all  blasphemy. 

Perhaps  we  can  acquire  a  better  view  of  these  blasphemy 
laws  and  of  the  state  of  mind  that  supports  them  by  view- 
ing them  in  actual  operation  through  the  judicial  instruc- 
tions to  Grand  Juries.  The  simple  childlike  reasoning 
must  surely  have  been  outgrown  and  repudiated  by  our 
constitutions.  These  instructions  exhibit  the  plain  reason 
of  the  law,  and  of  the  discredited  relations  of  church  and 
state,  and  something  of  the  theories  on  which  the  result- 
ant institutions  were  founded.  If  we  get  behind  the  words 
of  these  instructions  to  juries,  and  those  of  our  constitu- 
tional guarantees  of  religious  and  intellectual,  equality 
and  liberty  to  understand  the  states  of  mind  which  these 
words  symbolized,  then  there  can  remain  no  doubt  of  their 
incompatibility. 

A  Seventeenth  Century  Magistrate's  Instructions. 

Whitelocke  Bulstrode  (1650-1724)  was  an  important 
personage  of  his  time,  a  controversialist,  a  mystical  and 
philosophical  writer  of  much  note.  He  had  been  prothono- 
tary  of  the  marshal's  court,  and  commissioner  of  excise. 
He  had  been  a  justice  of  the  peace,  and  several  times  chair- 
man of  the  Quarter  Sessions.  His  charges  to  the  grand 
jury  and  other  juries  have  been  printed  and  reprinted  "by 
request"  for  the  enlightenment  of  the  magistrates.  I  use 
the  edition  of  1718. 

"Blasphemy  is  in  its  general  sense,  an  evil  speaking  of 
any  one;  Maledicentia :  But  by  use  and  custom  (the  gov- 
ernor of  the  Sense  of  Words)  it  is  appropriated  to  an  evil- 
speaking  of  God;  and  sometimes  it  is  taken  for  profane 
cursing  and  swearing  (p.  4). 

"God  Himself  pronounced  Judgment  against  the  Blas- 
phemer, and  bid  Moses  bring  forth  him  that  cursed,  that 
he  might  be  stoned  to  Death,  which  was  accordingly  done 
(p.  4). 

"Under  this  head  [blasphemy]  I  think  prophane  cursing 
and  swearing,  by  the  name  of  God,  may  be  well  compre- 
hended, for  the  Divine  Majesty  has  so  adjudg'd  it.  Blas- 
phemer and  Curser,  are  synonymous  terms  in  the  language 
of  Holy  Writ  (pp.  4-5). 


THE  ORIGIN  AND  SCOPE  OF  BLASPHEMY.  173 

"The  Jew  that  was  ston'd  to  Death  by  the  command  of 
God  for  prophane  cursing  was  in  a  great  passion,  was  con- 
tending with  another  person,  and  might  have  had  some 
provocation  to  curse,  which  though  not  excusable,  yet 
might  mitigate  somewhat  the  fault,  in  respect  of  humane 
Frailties  (p.  7). 

"But  many  Christians  in  their  common  and  ordinary 
conversation,  invoke  God  to  damn  them,  when  they  ask 
what  o'  th-  clock  'tis,  or  even  one  how  the  other  does  (p.  7). 

"The  most  senseless  Practice  in  the  World,  and  which 
nothing  but  the  Excess  of  Folly  and  Wickedness  could 
make  mankind  even  be  guilty  of  (p.  7). 

Judgments  on  Profane  Sailormen. 

"The  sin  of  prophane  cursing  and  swearing  is  so  very 
great,  and  become  so  general  amongst  the  common  People, 
the  soldiery  and  Mariners,  Hackney-Coachmen  and  Car- 
men especially,  that  'tis  much  to  be  feared,  if  there  is  not 
some  stop  put  to  it,  it  will  draw  down  Veangeance  from 
Heav'n  upon  us:  No  wonder  that  our  ships  so  often  mis- 
carry when  our  Mariners  curse  and  damn  themselves 
through  the  Sea  to  Hell, 

"When  the  moral  World  is  so  much  out  of  order,  why 
should  we  expect  a  calm  in  the  Material?  The  storm  arose 
for  Jonah's  sake,  and  even  the  Heathen  idolatrous  mariners 
(who  did  not  curse  and  swear  as  ours  do  in  a  storm,  but 
called  upon  their  several  Gods)  by  the  Light  of  Nature 
found  out  the  Cause  by  the  Effect,  and  adjudg'd  Jonah's 
crime  to  be  the  Cause,  before  God's  Providence  had  con- 
firm'd  it. 

'^Why  should  not  the  Elements,  made  to  serve  us,  oppose 
and  resist  our  Designs,  turn  their  Point  and  Edge  against 
us,  when  we  rebel  against  their  Creator  in  so  vile  a  manner, 
as  by  blasphemous  Oaths  and  Curses,  even  affront  the 
Divine  Majesty  to  his  Face. 

"An  habitual  Swearer  is  a  common  Nuisance  to  the  Place 
where  he  lives,  worse  than  a  Dunghill  before  one's  Door. 
He  has  no  right  to  Credit,  in  whatever  he  says  or  Swears : 
This  Sin  comes  not  alone,  for  these  People  let  themselves 
loose  to  Lewdness  and  other  Vices  in  the  highest  Degree. 


174  BLASPHEMY. 


"They  breathe  Contagioii  wherever  they  come,  they  de- 
file Human  Bodies  by  their  corrupt  and  filthy  emanations, 
and  they  taint  humane  Souls  by  their  execrable  Oaths  and 
Curses,  which  is  the  worst  sort  of  Plague. 

"For  the  common  Plague  infects  only  the  Body,  which 
is  only  the  Case  or  Instrument  of  the  Soul;  but  these 
miscreants  taint  even  the  Soul,  the  very  Man  himself ;  they 
teach  by  their  vile  Example  even  Women  and  Children  to 
Curse  and  Swear.  There  are  particular  laws  provided 
against  this  great  and  crying  sin.  ♦  ♦  *  If  you  have  any 
regard  for  your  Country,  for  the  honour  of  God,  or  for 
your  own  Souls,  set  your  Faces  against  this  Sin. 

"You  ought  to  complain  of  these  vile  Wretches  to  the 
Magistrates,  that  they  may  be  brought  to  condign  Punish- 
ment; so  that  where  the  love  of  Virtue  cannot  restrain 
them  the  fear  of  Punishment  may"  (pp.  7-10). 

The  Sabbath  Breaker  Denounced. 

A  long  tirade  against  the  Sabbath-Breaker  has  its  pre- 
sumed motive  explained  by  saying  that  such  persons  "may 
justly  be  said  to  be  guilty  of  Sacriledge,  in  robbing  God 
of  the  public  Honour,  more  particularly  due  to  his  Majesty 
that  day"  (p.  11). 

"That  great  man,  the  Lord  Chief  Justice  Hale,  made  it 
his  Observation,  that  the  more  strictly  he  kept  that  Day, 
the  better  success  he  had  the  Week  following'^  (p.  11). 

"Take  care  of  Keligion,  and  suppress  Vice;  Present  the 
authors  of  Books  writ  against  Religion ;  as  for  Atheism, 
such  as  that  of  Spinoza,  and  other  detestable  Authors,  or 
that  are  contra  bonos  Mores,  or  that  revile  the  Scriptures ; 
Authors  that  deny  their  Creator  and  yet  swear  by  him;  or 
if  they  acknowledge  a  God  they  confine  his  majesty  to 
heaven  and  exclude  a  Providence,  or  that  God  governs  the 
World,  or  presides  over  Humane  affairs.  Whereas  the 
Scriptures  assert,  and  good  sense  asserts,  that  not  a  spar- 
row (one  of  the  lowest  in  value  of  the  animal  creation) 
falls  to  tlie  ground  without  a  permissive  or  directive  Provi- 
dence" (p.  12). 

"Zeal  in  these  matters  will  never  sink  or  deprave  itself 
into  superstition.    A  lukewarmness  herein  is  a  very  great 


THE  ORIGIN  AND  SCOPE  OF  BLASPHEMY.  175 

sin,  a  sort  of  indifferency  for  the  honour  of  God,  for  which 
there  can  be  no  excess  of  zeal. 

"Gentlemen,  you  will  not  act  so  in  your  own  affairs ;  have 
but  the  same  zeal  for  the  Creator  of  the  World,  as  you 
have  for  the  World,  and  you  will  not  act  amiss,  tho  the 
balance  ought  to  turn  on  the  Creator's  side"  (p.  13). 

^^Thus  wise  laws  duly  executed  prevent  much  evil.  As 
for  witchcraft,  sorcery  or  enchantments ,  which  were 
anciently  the  common  topicks  wider  this  head  of  Offences 
against  God,  hy  the  Learned  of  old;  I  shall  not  trouble  you 
with  them,  there  being  no  such  practice  now,  blessed  be  God 
within  this  Kingdom"  (p.  15). 

Higher  Wages  Were  High  Treason. 

Next  he  proceeds  to  offenses  against  the  king,  etc.  "I. 
As  to  his  Majesty  and  Royal  Family.  To  compass,  or  even 
imagine  the  Death  of  the  King,  Queen  or  Prince,  and  de- 
claring the  same  by  some  Overt  Act,  is  High  Treason.  This 
law  comes  the  nighest  to  the  Divine  Law  of  any  of  our 
laws;  for  the  Divine  law  punishes  the  evil  thoughts,  and 
evil  intentions  of  the  heart.  For  from  thence  is  the  spring 
of  all  our  actions.  ♦  ♦  ♦  The  Overt-Act  is  but  the  means 
whereby  the  wickedness  of  the  heart  in  known  and  dis- 
covered by  the  short  capacity  of  man ;  but  the  sin  is  in  the 
thought  or  intention  of  the  heart,  to  contrive  the  death 
of  the  King.  The  King  is  the  life  and  soul  of  the  Kingdom. 
Therefore  the  utmost  care  is  to  be  taken  for  the  preserva- 
tion of  his  Royal  Person"  (pp.  16-17). 

"A  raising  a  force  to  burn,  or  throw  down  a  particular 
inclosure,  is  only  a  riot;  but  if  it  is  to  go  from  town  to 
town,  and  cast  in  all  inclosures ;  or  to  change  religion;  or 

to  ENHANCE  THE  SALARIES  OP  LABOURERS^  thcSC  OTC  respect- 
ively by  construction  of  law,  a  levying  of  War,  becoAise  the 
design  is  general."  (p.  18). 

"They  that  maintain  the  authority  of  the  Bishop  of 
Rome,  by  writing  or  printing  in  the  King^s  Dominions; 
for  the  first  offense  incur  a  Praemunire,  and  for  the  sec- 
ond offense  (a  conviction  being  had  of  the  first)  if  they 
do  it  only  by  words,  its  High  Treason. 

"The  bringing  in  of  bulls  or  putting  them  in  execution, 


176  BLASPHEMY. 


or  reconciling  any  to  the  See  of  Rome,  is  high  treason  by 
13  Eliz."     (p.  22). 

^*And  so  do  they  incur  a  Praemunire  who  conceal  an 
offer  of  absolution  from,  or  conciliation  to,  the  Church  of 
Rome. 

"They  who  bring  into  this  realm  a  thing  called  an  Agnus 
Dei  or  any  crosses ^  Pictures  or  heads ,  from  the  Bishop  of 
Rome,  or  from  any  persons  having  authority  derived  from 
the  See  of  Rome,  and  shall  deliver  them  to  any  subject  of 
this  realm,  incur  a  Prsemunire.'^     (p.  22). 

"In  the  days  of  popish  ignorance,  the  foolish  people  were 
made  to  believe  that  these  things  wore  by  them  would 
fright  away  the  Devil  and  other  Evil  Spirits ;  but  the  true 
use  of  them  was  for  the  crafty  Priests,  to  gull  the  people 
out  of  their  money  for  them.  .  .  .  (p.  23). 

PENALTIES  OP  POPERY. 

"Putting  in  practice  to  persuade  any  person,  or  to  ab- 
solve him  from  his  obedience  to  the  King,  or  to  reconcile  a 
person  to  the  See  of  Rome,  is  high  treason  in  both ;  and  so 
it  is  in  all  aiders  and  procurers.  *^  *  *  It  is  high  treason  to 
maintain  that  the  King  and  Parliament  cannot  bind  the 
descent  of  the  Crown.  And  so  it  is  if  any  person  by  writ- 
ing or  printing,  maintains  that  the  pretender  hath  right 
to  the  Crown ;  and  if  by  words,  the  party  incurs  a  Praemu- 
nire."    (p.  27). 

"The  speaking  of  ill  words  of  his  Majesty  for  they  are 
punishable  at  common  law.  The  King  not  being  within 
the  statute  of  Scandalum  Magnatum.  Libels  that  are 
made  public  against  the  ministry,  or  other  great  men; 
present  the  printers  and  publishers  as  well  as  the  Au- 
thors."    (pp.  30-31). 

In  commenting  on  the  suppression  of  the  theatre  the 
learned  judge  uses  this  moralistic  reasoning  and  has  it  all 
put  in  italics:  ^'Men  should  not  make  themselves  monkeys 
to  get  money;  or  taint  the  morals  of  those  who  see  or  hear 
them:  It's  below  the  digyiity  of  humane  Nature;  revere 
yourself  is  a  good  rule.  What  person  ever  frequented  the 
company  of  the  actors  of  either  sex,  hut  what  wus  ruined 
in  his  morals,  person  and  estate.  One  Play  House  ruins 
more  souls,  than  fifty  churches  are  able  to  save.''    (p.  35). 


THE  ORIGIN   AND  SC50PE  OF  BLASPHEMY.  177 

If  more  such  information  is  desired  it  will  be  found  in 
"A  summary  of  the  penal  laws  relating  to  nonjurors,  pap- 
ists, popish  recusants,  and  nonconformists,  and  the  late 
statutes  concerning  the  succession,  riots,  and  imprison- 
ments of  suspected  persons.  *  *  *  to  which  are  added, 
several  adjudged  cases,  and  notes  upon  the  most  material 
points.    ♦    ♦    ♦    London,  1716." 

The  above  instructions  exhibit  to  perfection  the  kind  of 
intellect  in  which  the  censorship  germ  develops.  The 
aristocratic  devotion  to  privilege  is  exhibited  by  the  laws 
which  penalize  the  claim  that  the  people  have  anything 
to  say  about  the  descent  of  the  crown  and  by  that  law 
which  makes  it  a  levying  of  war  to  attempt  to  enhance 
the  wage  earners  pay.  Likewise  the  monopoly  of  a  special 
priestcraft  and  if  emoluments  are  equally  preserved  by 
excluding  competitive  creeds,  and  by  making  it  an  act 
of  war  to  attempt  to  change  the  official  religion.  The 
sceptre  and  mitre  are  symbols  of  mutual  support  in  privi- 
leged parasiting. 

The  intellectual  development  is  further  revealed  by  the 
suggestion  that  prosperity  can  be  promoted  by  keeping 
the  sabbath,  that  shipwrecks  are  produced  by  sailor's  pro- 
fanity, and  that  it  is  the  province  of  government  to  punish 
blasphemy,  for  the  honor  of  God  and  the  protection  of  the 
human  soul.  This  anti-democratic  attitude,  the  meta- 
physics upon  which  it  was  founded  and  the  privileges 
which  such  laws  maintain  are  all  incompatible  with  the 
culture  of  our  time  as  that  is  expressed  in  our  constitu- 
tions.   Which  will  now  prevail? 


XIIL 

PROSECUTIONS  FOR  CRIMES 
AGAINST  RELIGION. 

1600-1636 

The  Connecticut  statute  against  blasphemy  was  first 
enacted  in  1642,  and  except  as  to  its  death  penalty,  it  has 
been  little  modified  since.  It  now  penalizes  "every  per- 
son who  shall  blaspheme  against  God^  either  of  the  per- 
sons of  the  Holy  Trinity,  the  Christian  religion  or  the 
Holy  Scripture.^^  Each  of  the  italicised  words  symbolize 
a  great  variety  of  contradictory  concepts,  according  to  the 
varying  metaphysical  theories  of  competing  sectarians  as 
well  as  of  many  independent  and  unorganized  mystics. 
Which  of  these  mutually  destructive  meanings  are  we  to 
adopt  as  a  matter  of  law?  The  statute  nowhere  makes 
the  choice.  If  we  confine  ourselves  to  one  body  of  theo- 
logical factors,  and  assume  that  the  court  may  enact  ecp 
post  facto  tests  of  criminality,  then  these  words  may  now 
be  made  to  mean  what  we  may  at  present  think  were  the 
concepts  of  the  dominant  theologians  of  Connecticut  in 
1642.  Let  us  not  forget  that  these  theologians  left  Eng- 
land to  get  away  from  the  conceptions  of  Christianity 
which  had  prevailed  there,  and  which  were  being  there 
imposed  by  the  aid  of  penal  laws.  From  the  viewpoint 
of  the  common  law,  we  must  ignore  speculations  about  the 
vagaries  of  colonial  theologians,  and  read  into  their 
statute  some  of  those  conflicting  conceptions  of  hlasphew/y, 
of  the  Trinity  and  of  the  Christian  religion,  which  were 
hated  in  Connecticut,  but  which  at  different  times  were 
"established"  according  to  the  changing  religious  fashions 
of  the  political  machinery  of  England. 

For  the  moment  we  will  assume  that  this  statute  is  not 
void  for  uncertainty  in  the  criteria  of  guilt,  and  that 
therefore,  in  each  blasphemy  case  each  court  may  be  a  law 
unto  itself,  for  the  enforcement  of  some  personal  theologic 
and  legal  concepts  in  the  promotion  of  a  personal  theory 

178 


PROSECUTIONS    FOR   CRIMES   AGAINST    RELIGION.         179 

of  the  general  welfare,  as  distinguished  from  a  legislative 
standard.  Since  the  statute  does  not  enlighten  us  about 
colonial  theology,  we  may  ignore  the  colonist's  well- 
known  aversion  to  England's  established  interpretation 
of  Christianity,  and  proceed  with  our  researches  in  juridi- 
cal lore.  If  we  are  to  interpret  a  statute  of  1642  by  Eng- 
lish precedents  we  must  begin  their  examination  at  a  time 
much  earlier.  Thus  we  may  arbitrarily  choose  the  year 
1600,  as  the  starting  point  of  our  inquiry. 

Those  who  are  more  curious,  about  the  antecedent  sav- 
agery by  which  priests  satisfied  their  sadistic  lust  for  mur- 
der, may  look  elsewhere.^ 

Opening  the  Seventeenth  Century. 
In  our  day  it  has  become  difficult  to  understand  the 
thought,  and  much  more  difficult  to  understand  the  feel- 
ings entertained  by  the  few  intelligent  libertarians  of  a 
few  centuries  ago.  Unfortunately  the  present  space  limits 
preclude  all  effort  to  portray  the  condition  upon  which 

'  See,  James  Fitzjames  Stephen — History  of  the  criminal  law  of  Eng- 
land, V.  2,  p.  412,  to  end  of  volume,  Edition  of  1883, 
Fox's,  Book  of  martyrs; 
Neal, — Rev.  Daniel,  History  of  Puritans. 

Reese,  Richard — A  Compendious  Martyrology,  containing  an  ac- 
count of  the  sufferings  and  constancy  of  Christians,  in  the  different 
persecutions,  which  have  raged  against  them  under  the  pagan  and 
popish  governments.  By  Richard  Reese.  London,  1812.  3  vols. 
Andrews,  William  Eusebius — An  examination  of  Fox's  calendar^  of 
protestant  saints,  martyrs  *  *  *  contrasted  with  a  biographical 
sketch  of  catholic  missionary  priests  and  others  executed  under 
protestant  penal  laws,  from  1335-1684  abridged  from  Parson's,  Ex- 
amen  and  Challoner's  Memoirs,  with  additional  remarks.  Londoa 
1826. 

Letters  on  religion  persecution,  by  A  Catholic  Layman.     [Mathew 
Carey.]    (4th  ed.  Phila.  1827,  and  authorities  cited. 
Bum's  Ecclesiastical  Law; 
Oldcastle's  Case,  (1413)  v.  1,  State  Trials; 
Master  Thorpe.  (1407)  v.  1,  State  Trials,  p.  17. 
Keyser's,  John — Case,  v.  3,  Coke's  Institutes,  41.    This  man  doubted 
that  excommunication  would  effect  the  wheat  crop.     The  spiritual 
court  proceed  against  him  but  the  court  of  Kings  Bench  released 
him  on  writ  of  habeas  corpus. 

Besse  has  written  two  folio  volumes  of  14  and  15  hundred  pages 
filled  with  details  of  the  suffering  of  the  Quakers.  It  is  estimated 
that  between  12,000  and  15,000  Quakers  were  imprisoned  at  differ- 
ent times  between  1660  and  1684.  In  the  latter  year  there  were 
1,460  Quakers  in  the  jails  of  England. 

Maitland's  Collected  works,  v.  1,  p.  385-406;  "The  deacon  and  the 
Jewess  or  apostacy  at  common  law." 
Burnett's,  History  of  the  reformation. 


180  BLASPHEMY. 


those  feelings  were  founded.  With  the  opening  of  the 
seventeenth  century  the  wK>rst  of  the  savagery  was  passing. 
In  just  a  few  paragraphs,  I  wish  merely  to  give  a  sug- 
gestive hint  of  these  facts. 

"Were  it  possible  to  increase  the  abhorence  and  detesta- 
tion which  every  upright  mind  must  feel  on  a  contempla- 
tion of  the  horrible  scenes  above  depicted,  one  feature 
remains  to  be  considered,  calculated  to  produce  this  effect. 
While  the  punishment  for  harbouring  or  aiding  a  priest, 
was  hanging — the  most  atrocious  murderer,  who  had  sent 
a  dozen  wretches  to  their  final  account,  ^with  all  their  im- 
perfections on  their  heads,'  was  only  hanged  for  his  of- 
fence, however  aggravated  by  circumstances — whereas  the 
punishment  of  a  priest,  whatever  his  piety  or  merits  might 
be,  was— HANGING—CUTTING  DOWN  ALIVE— CUT- 
TING OFF  HIS  PEIVY  MEMBEKS— SCOOPING  OUT 
HIS  BOWELS— BUENING  THEM  BEFOEE  HIS 
PACE— CHOPPING  OFF  HIS  HEAD— CUTTING  THE 
BODY  IN  QUAETEES— WHILE  THE  FLESH  WAS 
STILL  QUIVEEING  UNDEE  THE  BUTCHEE'S 
KNIFE ! ! — the  quarters  were  hung  up  in  different  places 
in  terror  to  others,  to  force  them  to  apostatize  and  re- 
nounce the  religion  of  their  fathers,  and  profess  a  religiou 
which  they  probably  abhorred.  A  wonderful  plan  for 
spreading  the  mild  spirit  of  the  gospel,  and  making  prose- 
lytes !  Could  a  congress  of  devils  from  the  bottomless  pit 
of  hell,  devise  anything  more  atrocious?"  ^ 

"A  madman,  who  called  himself  the  Holy  Ghost,  was  in 
the  same  reign  BUENED  ALIVE."  ^ 

1605  July  2nd.  "Seventeen  Scottish  ministers,  contrary 
to  the  King's  express  command,  held  a  solemn  assembly 
at  Aberdeen  in  Scotland;  who,  being  for  the  same  con- 
vented  before  the  Council  of  Scotland,  utterly  denied  not 
only  their  lordships'  authority  in  that  behalf,  but  also  the 
king's  ♦  ♦  ♦  for  which  riot,  and  for  denying  the  king's 
supremacy  in  causes  ecclesiastical,  six  of  the  chief,  the 

•  [Mathew  Carey]  Letters  on  Religious  Persecution  *  *  *  in  re- 
ply to  a  libelous  attack  on  the  Roman  Catholics  *  *  *  by  a 
Catholic  Layman,  Phila.  Jan.  1,  1827.  (p.  42.) 

•  [Mathew  Carey]  Letters  etc.  p.  43,  citing  Hume's  England,  vol.  3, 
p.  371.  edition  not  given. 


PROSECUTIONS    FOR    CRIMES   AGAINST   RELIGION.         181 

10th  of  January  following,  were  ARRAIGNED  AND 
CONDEMNED  OF  HIGH  TREASON."  * 

Quite  true,  these  were  not  charges  for  blasphemy.  They 
were  only  gentle  Christian  amenities  in  anticipation  and 
for  the  prevention  of  blasphemy  and  for  preventing  even 
the  advocacy  of  tolerance  for  such  dangerous  tendencies. 
If  we  concede  to  the  State  a  jurisdiction  to  punish  blas- 
phemy, then  it  may  indeed  be  dangerous  to  wait  till  the 
blasphemy  has  poisoned  innocent  minds.  Far  better  pro- 
tection against  this  heinous  offence  is  given  if  the  heretic 
predisposed  to  blasphemy  and  tolerance  is  put  out  of  the 
way  before  he  has  a  chance  to  infect  others. 

With  just  these  hints  as  to  that  which  was  passing  we 
will  now  proceed  to  a  study  of  the  relatively  few  cases  of 
which  any  record  remains.  Often  the  record  will  be  in- 
complete. To  the  best  of  our  facilities  we  will  portray 
as  near  as  may  be  the  essence  of  the  offence  and  as  com- 
pletely as  may  be  possible  and  useful  the  official  or  judicial 
action.  To  each  case  discussed  a  bibliography  is  attached. 
Occasionally  this  includes  books  which  were  not  accessible. 
The  cases  will  be  reported  in  their  chronological  order. 

Atwood^s  Case— 1605.^ 

In  Atwood's  case  the  indicted  language  was:  "Yonr 
religion  is  a  new  religion,  within  fifty  years;  preaching  was 
but  prating,  and  hearing  of  service  more  edifying  than 
two  hours  of  preaching."  Held :  "Car  les  parolls  son  se- 
ditious parolls  encontre  le  State  de  nottre  Esglise  &  en- 
contre  le  peace  del  Relme  &  coment  que  ils  sont  spiritual 
parols,  uncore  ils  trahe  un  temporall  consequent,  scillicet 
le  disturbance  del  peace." 

Bartholomew  (Legate  or  Legatt) — 1612.^ 

This  heretic  was  "of  bold  spirit,  confident  carriage,  ex- 
cellently skilled  in  the  scriptures;  and  well  had  it  been 

*  [Mathew  Carey]  Letters  etc.  p.  42-43,  citing  Stowe's  Chronicles.  870. 

•  Atwood's  case,  vol.  2,  Rolle's  Abridgment,  p.  7^ ; 
Croke's  Report,  James  I,  p.  421. 

Digest  Law  concerning  Libels,  [1765]  p.  56. 
Starkie:  Law  of  Slander  and  Libel,  5th  ed.  p.  615. 
•2  Howell's  State  Trials,  p.  727; 
British  Review,  v.  5,  p.  208-210; 
Dictionary  of  National  Biography,  v.  32,  p.  405. 


182  BLASPHEMY. 


for  him  if  he  had  known  them  less  or  understood  them 
better.  His  conversation  very  unblamable,  and  in  the  po- 
sition of  heretical  doctrine  is  never  more  dangerous  than 
when  served  up  in  clean  cups,  and  washed  dishes  ♦  ♦  ♦ 
Before  we  set  down  his  pestilent  opinions ;  may  the  writer 
and  reader  fence  themselves  with  prayer  to  God, 
against  the  infection  thereof;  lest  otherwise,  touching  such 
pitch  (though  but  with  the  bare  mention)  defile  us, 
casually  tempting  a  temptation  in  us,  and  awakening  some 
corruption  which  otherwise  would  sleep  silently  in  our 
souls.  And  if  notwithstanding  this  our  caution,  any  shall 
reap  an  accidental  evil  to  themselves,  by  reading  his  damn- 
able opinions,  my  pen  is  none  more  accessory  to  their 
harm,  than  that  apothecary  is  guilty  of  murder,  if  others, 
out  of  a  liquorish  curiosity,  kill  themselves  with  that 
poison,  which  he  kept  in  his  shop,  for  sovereign  use  to  make 
antidotes  thereof." 

Having  now  prepared  your  soul  according  to  the  above 
injunction  you  may  proceed  to  read  the  thirteen  "divers 
wicked  Errors,  Heresies,  and  Blasphemous  Opinions 
holden,  affirmed,  and  published  by  the  said  Bartholomew 
Legat,  and  chiefly  in  these  thirteen  Blasphemous  Positions 
following,  viz  :— 

"1  That  the  Creeds  called  the  Mcene  Creed  and 
Athanasius's  Creed,  contain  not  a  profession  of  the  true 
Christian  Faith,  or  that  he  will  not  profess  his  Faith  ac- 
cording to  the  same  Creeds. 

"2.  That  Christ  is  not  God,  of  God  begotten,,  not  made, 
but  begotten  and  made. 

"3.  That  there  are  no  persons  in  the  Godhead. 

"4.  That  Christ  was  not  God  from  everlasting,  but  be- 
gan to  be  God  when  he  took  Flesh  of  the  Virgin  Mary. 

"5.  That  the  w^orld  was  not  made  by  Christ. 

"6.  That  the  Apostles  teach  Christ  to  be  Man  only. 

"7.  That  there  is  no  Generation  in  God,  but  of  creatures. 

"8.  That  this  assertion,  God  to  be  made  Man,  is  con- 
trary to  the  rule  of  Faith,  and  monstrous  Blasphemy. 

"9.  That  Christ  was  not  before  the  fullness  of  time  ex- 
ept  by  Promise. 


PROSECUTIONS    FOR   CRIMES   AGAINST   RELIGION.         183 

"10.  That  Christ  was  not  God  otherwise  than  an 
anointed  God. 

"11.  That  Christ  was  not  in  the  form  of  God,  equal  with 
God,  that  is,  in  substance  of  God,  but  in  righteousness  and 
giving  Salvation. 

"12.  That  Christ  by  his  Godhead  wrought  no  miracle. 

"13.  That  Christ  is  not  to  be  pray'd  unto." 

For  these  "dangerous  and  blasphemous"  speculations 
against  the  dogma  of  the  trinity  "as  a  zealot  of  justice  and 
a  defender  of  the  Catholic  Faith",  in  the  name  of  the  King 
Legatt  was  "burned  to  ashes"   at   Smithfield   in    1612. 

Edward  Wightman — 1612.  "^ 

A  month  after  the  burning  of  Legatt  the  same  fate  befell 
Edward  Wightman  at  Litchfield.  The  pious  reporter  tells 
us  the  latter  suffered  for  far  worse  opinions  (if  worse 
might  be)  than  Legatt  maintained.  ♦  ♦  ♦  The  wicked 
heresies  of  the  Eoionites,  Corinthians,  Valentinians, 
Arian,  Macedonians,  of  Simon  Magnus,  of  Manes,  Mani- 
chees,  of  Photinus  and  Anabaptists  and  of  other  heretical, 
execrable,  and  unheard  of  opinions,  by  the  instinct  of 
Satan,  by  him  excogitated  and  holden,  viz.: 

"1.  That  there  is  not  the  trinity  of  persons,  the  Father, 
the  Son,  and  the  Holy  Ghost,  in  the  unity  of  the  Deity. 

"2.  That  Jesus  Christ  is  not  the  true  natural  Son  of 
God,  perfect  God,  and  of  the  same  substance,  eternity  and 
majesty  with  the  Father  in  respect  of  his  Godhead. 

"3.  That  Jesus  Christ  is  only  man  and  a  mere  creature, 
and  not  both  God  and  man  in  one  person. 

"4.  That  Christ,  our  Saviour,  took  not  human  flesh  of 
the  substance  of  the  Virgin  Mary  his  Mother;  and  that, 
that  Promise  ^The  Seed  of  the  Woman  shall  break  the  ser- 
pent's head,'  was  not  fulfilled  in  Christ. 

"5.  That  the  person  of  the  Holy  Ghost  is  not  God  co- 
equal, coetemal,  and  coessential  with  the  Father  and  the 
Son. 

"6.  That  the  three  creeds,  The  Apostles  Creed,  the 
Nicene  Creed,  and  Athanasius^s  Creed,  are  the  heresies  of 
the  Nicolaitanes. 

'  R.  V.  Wightman,  2  Howell's  State  Trials,  734-735. 


184  BLASPHEMY. 


"7.  That  he  the  said  Edward  Wightman  is  that  prophet 
spoken  of  in  the  eighteenth  of  Deuteronomy  in  these  words, 
'I  will  raise  them  up  a  prophet,'  &c.  And  that,  that  place 
of  Isaiah,  ^I  alone,  have  troden  the  winepress;'  and  that 
place,  ^Whose  fan  is  in  his  hand,'  are  proper  and  personal 
to  him,  the  said  Edward  Wightman. 

"8.  And  that  he  the  said  Wightman  is  that  person  of  the 
Holy  Ghost  spoken  of  in  the  Scriptures;  and  the  Com- 
forter spoken  of  in  the  16th  of  St.  John's  Gospel. 

"9.  And  that  those  words  of  our  Saviour  Christ  of  the 
Sin  of  Blasphemy  against  the  Holy  Ghost,  are  meant  of 
his  person. 

"10.  And  that,  that  place,  the  fourth  of  Malachy,  of 
Elias  to  come,  is  likewise  meant  of  his  person. 

"11.  That  the  soul  doth  sleep  in  the  sleep  of  the  first 
death,  as  well  as  the  body,  and  is  mortal  as  touching  the 
sleep  of  the  first  death,  as  the  body  is:  And  that  the  soul 
of  our  Saviour  Jesus  Christ  did  sleep  in  that  sleep  of 
death  as  well  as  his  body. 

12.  That  the  souls  of  the  elect  saints  departed,  are  not 
members  possessed  of  the  triumphant  Church  in  Heaven. 

"13.  That  the  baptizing  of  infants  is  an  abominable  cus- 
tom. 

"14.  That  there  ought  not  to  be  in  the  church  the  use  of 
the  Lord's  Supper  to  be  celebrated  in  the  Elements  of 
Bread  and  Wine ;  and  the  use  of  Baptism  to  be  celebrated 
in  the  Element  of  Water ;  as  they  are  now  practiced  in  the 
Church  of  England :  But  that  the  use  of  Baptism  is  to  be 
administered  in  water,  only  to  converts  of  sufficient  age 
of  understanding,  converted  from  infidelity  to  the  faith. 

"15.  That  God  has  ordained  and  sent  him,  the  said  Ed- 
ward Wightman,  to  perform  his  part  in  the  work  of  the 
Salvation  of  the  world,  to  deliver  it  by  his  teaching,  or 
admonition,  from  the  heresy  of  the  Mcolaitanes ;  as  Christ 
was  ordained  and  sent  to  save  the  world,  and  by  his  death 
to  deliver  it  from  sin,  and  to  reconcile  it  to  God. 

"16.  And  that  Christianity  is  not  wholly  professed  and 
preached  in  the  Church  of  England,  but  only  in  part." 

These  two  last  cases  are  a  perfect  illustration  of  the 
meaning  of  our  constitutional  guarantees  for  unabridged 


PROSECUTIONS    FOR    CRIMES    AGAINST   RELIGION.         185 

free  speech,  according  to  some  judicial  interpretations  of 
it.  There  was  no  previous  restraint,  and  only  such  subse- 
quent punishment  according  to  law,  for  "dangerous  or 
offensive  writings  which  when  published  were  on  a  fair  and 
impartial  trial  adjudged  of  a  pernicious  tendency".  Of 
course,  this  is  always  done  "for  the  preservation  of  peace 
and  good  order  of  government  and  religion,  the  only  solid 
foundation  of  civil  liberty.''  At  least  so  says  Blackstone 
and  some  other  "learned"  judges. 

These  heretical  and  blasphemous  opinions,  or  some 
equally  dangerous  contrary  ones,  might  be  punishable 
under  the  Connecticut  blasphemy  law,  if  we  knew  what 
conception  of  the  Trinity  the  legislature  meant  to  protect 
against  blasphemy.  A  practical  question  is :  Did  our  con- 
stitution in  such  cases  leave  the  concept  of  the  Trinity  to 
be  determined  by  the  whim  or  convictions  of  each  jury? 
Does  constitutional  religious  liberty  mean  only  the  sub- 
stitution of  a  milder  penalty?  or  the  abolition  of  all  penalty 
for  such  or  any  blasphemy? 

John  Ogelvib — 1615.  ^ 

In  Scotland  Feb'y.  1615  John  OgeMe  was  tried  for 
"treason,  declining  the  king's  authority,  alleging  the  su- 
premacy of  the  Pope,  hearing  and  saying  mass,"  &c.  In 
order  to  secure  confessions  he  was  prevented  from  sleep. 
Finally  he  said : 

"I  deny  any  point  raised  against  me  to  be  treason,  for 
if  it  were  treason  it  would  be  treason  in  all  places  and  in 
all  kingdoms ;  but  that  is  known  not  to  be  so,  as  for  your 
acts  of  parliament,  they  are  made  by  a  number  of  partial 
men,  the  best  of  the  land  not  agreeing  with  them,  and  of 
matters  not  subject  to  their  forum  or  judication  for  which 
I  will  not  give  a  rotten  fig." 

On  the  king's  prerogative  he  said:  "I  know  no  other 
authority  he  hath  but  that  which  he  received  from  his 
predecessors,  who  acknowledged  the  Pope  of  Rome  his 
Jurisdiction.  If  the  King  will  be  to  me  as  his  predecessors 
were  to  mine,  I  will  obey  and  acknowledge  him  for  my 
King ;  but  if  he  do  otherwise,  and  play  the  runagate  from 

'Narrative  of  Criminal  Trials  in  Scotland,  vol.  2,  p.  143-147. 


186  BLASPHEMY. 


God,  as  he  and  you  all  do,  I  will  not  acknowledge  him 
more  than  this  old  hat." 

Adopting  Presbyterian  ground  he  said :  "For  declining 
of  the  King's  authority,  I  will  do  it  still  in  matters  of 
religion,  for  with  such  matters  he  hath  nothing  to  do; — 
neither  have  I  done  anything  but  that  which  the  ministers 
did  at  Dundie ;  they  would  not  acknowledge  his  majesty's 
authority  in  spiritual  matters,  more  than  I.  *  *  * 

"That  if  the  King  offended  against  the  Catholic  Church 
the  Pope  might  punish  him  as  well  as  a  shepard,  or  the 
poorest  fellow  in  the  country,  that  in  abrogating  the  Pope's 
authority  the  Estates  of  parliament  had  gone  beyond  their 
limits  and  that  the  King  in  usurping  the  Pope's  right  had 
lost  his  own."    Was  hung 

Thomas  Dighton  and  John  Holt — 1616.® 

In  September,  1616,  the  Court  of  High  Commissioners 
set  at  Ashby  to  examine  certain  witnesses  against  Mr. 
Hildersham  and  his  friends  Dighton  and  Holt.  One  of 
them  had  been  imprisoned  in  the  Gatehouse,  the  other  in 
the  Fleet.  They  were  brought  to  the  court  under  guard 
and  received  the  following  sentence: 

"It  appeared  to  the  court  that  the  said  Dighton  and 
Holt,  being  laymen  had,  in  opposition  to  the  State  Ec- 
clesiasticaly  kept  sundry  conventicles,  or  exercises  of  re- 
ligion in  private  houses,  ♦  *  ♦  ♦  *  and  held  public  disputa- 
tions against  the  orders,  rites  and  ceremonies  of  the 
church,  and  disuated  others  from  conformity  to  the  same. 
*  *  *  Leaving  their  own  parishes  went  to  other  parishes 
to  hear  unconformable  ministers  and  carried  many  of  the 
parish  of  Ashby  after  them,  to  the  great  encouragement  of 
schismatical  and  refractory  persons;  *  *  *  and  having 
made  common  purses,  and  sundry  collections,  for  main- 
taining, abbetting,  and  encouraging  such  schismatical  per- 
sons in  their  obstinacy  and  disobedience  to  his  majesty's 
laws  ecclesiastical,  they  are  therefore  pronounced  schis- 
matics and  schismatical  persons,  and  worthy  to  be  severely 
punished,  and  were  accordingly  fined,  a  thousand  pounds 
a  piece,  pronounced  excommunicate,  ordered  to  be  publicly 

"  Richard  Reese,  Compendious  martyrology,  v.  3,  p.  426. 


PROSECUTIONS    FOR   CRIMES   AGAINST   RELIGION.         187 

denounced,  to  make  their  submission  in  three  severaly 
places,  condemned  in  costs  of  suit,  and  sent  back  to 
prison." 

Richard  Moket  (Mocket  or  Moquet) — 1617.^® 
Richard  Mocket  (1577-1618),  was  a  graduate  of  Ox- 
ford and  a  clergyman  of  some  distinction.  In  1616,  in 
London,  Moket  published  a  volume  in  Latin,  containing 
the  writings  of  others,  and  adding  a  work  of  his  own  en- 
titled, "Doctrina  et  Politia  Ecclesiae  Anglicanae"  which 
was  a  general  view  of  ecclesiastical  jurisdiction  in  the 
English  church.  The  book  gave  offence,  and  by  public 
edict  the  king  condemned  it  to  be  burnt  in  1617.  Heylyn 
was  of  the  opinion  that  the  real  offence  was  the  omission 
of  the  first  clause  in  the  translation  of  the  twentieth 
article  of  the  thirty -nine  articles  which  runs:  "The 
Church  hath  power  to  decree  rites  or  ceremonies  and 
authority  in  controversies  of  faith."  Evidently  because 
the  offence  was  negative,  that  is  an  omission,  no  criminal 
prosecution  followed.  May  we  not  legitimately  infer, 
however,  that  if  the  denial  of  ecclesiastical  jurisdiction 
had  been  expressed,  it  would  have  been  treated  as  being 
also  a  criminal  offence? 

Traske's  Case— 1618.^* 

"In  the  Star  Chamber  likewise  one  John  Traske,  a  Min- 
ister that  held  opinion  that  the  Jewish  Sabbath  ought  t9 
be  observed,  and  not  ours,  and  that  we  ought  to  abstain 
from  all  manner  of  swines'  flesh;  being  examined  upon 
these  things  he  confessed  that  he  had  divulged  these  opin- 
ions, and  had  laboured  to  bring  as  many  to  his  opinions 
as  he  could.  And  had  also  written  a  letter  to  the  King 
wherein  he  did  seem  to  tax  his  Majesty  of  Hypocracie,  and 
.did  expressly  inveigh  against  the  Bishop's  high  Commis- 
sioners, as  bloody  and  cruel  in  their  proceedings  agamst 
him  and  a  Papal  Clergy/' 

"Now  being  called  Ore  tenns,  was  Sentenced  to  Fine 

"Vickers,  Robert  H.     Martyrdoms  of  literature,  p.  373. 

Dictionary  of  national  biography,  vol.  38,  p.  91. 

General  biographical  dictionary,  Lond.  1815,  vol.  22,  p.  207-9. 
"Hobart's  Report,  236. 


188  BLASPHEMY. 


and  Imprisonment,  not  for  holding  these  opinions,  (for 
those  were  examinable  in  the  Ecclesiastical  Courts  and 
not  here)  but  for  making  of  Conventicles  and  Factions  by 
that  means,  which  may  tend  to  sedition  and  commotion, 
and  for  scandalizing  the  King,  the  Bishops  and  the 
Clergy.'^ 

Among  other  things  we  see  here  that  an  argument  for 
toleration  and  denunciation  of  intolerant  bishops,  is 
penalized  because  it  "may  tend"  to  sedition. 

Reginald  (or  Reynold)  Scot  (or  Scott)  bet.  1603-1625.^2 

Reginald  Scott  (1538?-1599)  was  a  man  of  social  posi- 
tion and  financial  comfort,  and  the  scholarly  author  of 
books.  He  also  held  several  creditable  public  offices.  He 
was  a  member  of  the  parliament  of  1588-9  representing 
the  constituency  of  New  Romney.  In  1584  he  first  pub- 
lished his  most  notable  book  about  witchcraft  which  for 
our  purpose  has  an  important  history.  Its  lengthy  title 
page  is  very  illuminating  and  is  now  herewith  given  in 
full,  and  with  the  other  comment  quoted  shows  this  con- 
demned book  to  be  undoubtedly  the  most  enlightened 
book  about  witchcraft  that  had  been  written  up  to  the  time 
of  its  burning  which  occurred  before  1625.  Here,  then, 
follows  the  title  page : 

"Scot's  discovery  of  witchcraft,  proving  the  common 
opinions  of  witches  contracting  with  devils,  spirits,  or 
familiars;  and  their  power  to  kill,  torment,  and  consume 
the  bodies  of  men,  women,  and  children  or  other  creatures 
by  diseases  or  otherwise;  their  flying  in  the  air,  &c.  to  be 
but  imaginary  erronious  conceptions  and  novelties; 
wherein  also  the  lewd  unchristian  practices  of  witchmon- 
gers,  upon  aged,  melancholy  ignorant,  and  superstitious 
people  in  extorting  confessions,  by  inhumane  terrors  and 
tortures  is  notably  detected.  Also  the  knavery  and  con- 
federacy of  conjurors.  The  impious  blasphemy  of  in- 
chanters.  The  imposture  of  soothsayers,  and  infidelity 
of  atheists.  The  delusion  of  pythonists,  figure-casters, 
astrologers,  and  vanity  of  dreamers.  The  fruitlesse  beg- 
gerly  art  of  alchimistry.     The  horrible  art  of  poisoning 


Dictionary  of  national  biography,  v.  51,  p.  64. 


PROSECUTIONS    FOB    CRIMES    AGAINST    RELIGION.         189 

and  all  the  tricks  and  conveyances  of  juggling  and  lieger- 
demain  are  fully  deciphered.  With  many  other  secrets 
opened  that  have  long  lain  hidden ;  though  very  necessary 
to  be  known,  for  the  undeceiving  of  judges,  justices,  and 
juries  and  for  the  preservation  of  poor,  aged,  deformed, 
ignorant  people;  frequently  taken,  arraigned,  condemned 
and  executed  for  witches  when  according  to  a  right  under- 
standing, and  a  good  conscience,  physic,  food,  and  neces- 
saries should  be  administered  to  them.  Whereunto  is 
added  a  treatise  upon  the  nature  and  substance  of  spirits 
and  devils,  &c.  all  written  and  published  in  Anno  1584  by 
Reginald  Scot,  Esquire,"  reprinted  in  London,  1654. 

As  showing  the  erudition  of  the  man  it  is  worthy  of  note 
that  he  enumerates  212  authors  whose  works  in  Latin  he 
has  consulted  and  23  authors  who  wrote  in  English.  Many 
editions,  in  the  English  and  European  languages,  have 
been  published. 

"With  remarkable  boldness  and  an  insight  that  was  far 
in  advance  of  his  age,  he  set  himself  to  prove  that  the  be- 
lief in  witchcraft  and  magic  was  rejected  alike  by  reason 
and  religion,  and  that  spiritualistic  manifestations  were 
wilful  impostures  or  illusions  due  to  mental  disturbance 
in  the  observers.  He  wrote  with  the  philanthropic  aim  of 
staying  the  cruel  persecution  which  habitually  pursued 
poor,  aged,  and  simple  persons,  who  were  popularly  cred- 
ited with  being  witches.  The  maintenance  of  the  super- 
stition he  laid  to  a  large  extent  at  the  door  of  the  Roman 
Catholic  Church  *  *  *  Scot  performed  his  task  so  thor- 
oughly that  this  volume  became  an  exhaustive  encyclo- 
paedia of  contemporary  beliefs  about  witchcraft,  spirits, 
alchemy,  magic,  and  legerdemain." 

Of  course,  the  book  was  vigorously  attacked  by  the  ad- 
herents of  superstition.  Among  these  was  James  VI  of 
Scotland.  In  his  "Daemonologie"  (1597)  he  character- 
ized the  opinions  of  Scot  as  "damnable."  After  his  acces- 
sion to  the  English  throne,  he  ordered  all  copies  of  Scot's 
"Discoverie"  burnt.  Scot  himself  was  already  dead  and 
beyond  reach  of  prosecution. 

James  VI  of  Scotland  became  James  I  of  England  in 
1603  and  died  in  1625.    The  burning  of  Scot's  book  must 


190  BLASPHEMY. 


have  occurred  between  those  dates.  After  his  accession  to 
the  English  throne  he  immediately  manifested  his  prefer- 
ence for  the  High  Church  view.  This  is  as  much  as  I  have 
had  time  to  unearth  as  to  the  date  and  circumstances  of 
the  burning  of  Scot's  book  against  witchcraft.  We  shall 
later  see  that  this  precedent  is  of  interest  and  importance 
in  construing  the  Connecticut  state  against  blasphemy, 
as  applicable  to  those  who  deny  witchcraft. 
David  Pare  (Pareus)— 1622.13 

David  Pare  (Parens;  1548-1622),  was  a  distinguished 
German  protestant  divine  born  in  Selicia.  His  writings 
were  collected  and  published  at  Frankfort  in  1647  making 
four  volumes  folio. 

"In  1622  David  Pare's  [Parens']  Commentary  on  the 
Epistle  to  the  Eomans  was  burned  in  London,  Oxford  and 
Cambridge,  by  order  of  the  privy  council."  It  was  also 
burnt  by  the  common  hangman  on  the  order  of  James  I. 
The  author  was  on  the  continent  and  beyond  the  reach  of 
prosecution. 

Kichard  Mountagu — 1626.1* 

Eichard  Montagu  (or  Mountague;  1577-1641),  was  a 
controversialist  of  note,  and  was  appointed  the  bishop  of 
Chichester,  being  later  transferred  to  Norwich.  But 
these  honors  came  after  much  trouble.  Montagu  was  of 
the  high  church  party  and  under  suspicion  of  too  close  an 
affection  for  Romanism.  This,  of  course,  enabled  him  to 
count  bishop  Loud  and  the  king  among  his  staunch  sup- 
porters. Doubtless  this  approval  prevented  his  being 
prosecuted  and  secured  his  promotion  to  a  bishopric,  as 
will  be  seen  presently. 

"Some  popish  priests  and  Jesuits  were  executing  their 
mission  at  Stamford-Eivers,  in  Essex,  of  which  he  was 

"Vickers,  Robert  H.    Martyrdoms  of  literature,  p.  374. 

Rose,    Hu^h   James.     A   new   general   biographical    dictionary,   vol. 

10,  p.  472-3. 

Algemeine  deutsche  biographic,  vol.  25,  p.  167. 
"  General  biographical  dictionary,  Lond.  1815,  vol.  22,  p.  478-484. 

Dictionary  of  national  biography,  vol.  38,  p.  266-270. 

Vickers,  Robert  H.    Martyrdoms  of^  literature,  p.  373. 

Rushworth,  John.    Historical  collections,  vol.  1,  p.  212. 

Howell's.  State  trials,  vol.  2,  p.  1258-1266. 


PROSECUTIONS   FOR  CRIMES    AGAINST   RELIGION.         191 


then  rector ;  and  to  secure  his  flock  against  their  attempts, 
he  left  some  propositions  at  the  place  of  their  meeting, 
with  an  intimation  that,  if  any  of  those  missionaries  could 
give  a  satisfactory  answer  to  the  queries  he  had  put,  he 
would  immediately  become  their  proselyte.  In  these,  he 
required  of  the  papists  to  prove,  that  the  present  Roman 
church  is  either  the  catholic  church,  or  a  sound  member  of 
the  catholic  church;  that  the  present  church  of  England 
is  not  a  true  member  of  the  catholic  church;  and  that  all 
those  points,  or  any  of  those  points  which  the  church  of 
Rome  maintains  against  the  church  of  England,  were,  or 
was,  the  perpetual  doctrine  of  the  catholic  church,  the 
decided  doctrine  of  the  representative  church  in  any  gen- 
eral council,  or  national  approved  by  a  general  council, 
or  the  dogmatical  resolution  of  any  one  father  for  500 
years  after  Christ.  On  their  proving  all  this  in  the  af- 
firmative, he  promised  to  subscribe  to  their  faith.  Instead, 
however,  of  returning  any  answer,  a  small  pamphlet  was 
left  at  last  for  him,  entitled  *A  new  Gag  for  the  old 
Gospel.'  To  this  he  replied,  in  ^An  Answer  to  the  late 
Gagger  of  the  Protestants,'  1624,  4:to,  which  gave  great 
offence  to  the  Calvinists,  at  that  time  a  very  numerous  and 
powerful  party  in  the  church,  and  thus  drew  upon  him 
enemies  from  a  quarter  he  did  not  expect :  and  their  indig- 
nation against  him  ran  so  high,  that  Ward  and  Yates,  two 
lecturers  at  Ipswich,  collected  out  of  his  book  some  points, 
which  they  conceived  to  savour  of  popery  and  Arminian- 
ism,  in  order  to  have  them  presented  to  the  next  parliament; 
Mountagu,  having  procured  a  copy  of  the  information 
against  him,  applied  to  the  king  for  protection,  who  gave 
him  leave  to  appeal  to  himself,  and  to  print  his  defence. 
Upon  this,  he  wrote  his  book  entitled,  *Appello  Csesarem; 
a  just  Appeal  against  two  unjust  Informers;'  which,  hav- 
ing the  approbation  of  Dr.  White,  dean  of  Carlisle,  whom 
king  James  ordered  to  read,  and  give  his  sense  of  it,  was 
published  in  1625,  4to,  but  addressed  to  Charles  I.  James 
dying  before  the  book  was  printed  off. 

"In  this  work  many  of  the  acknowledged  doctrines  of 
the  church  of  England  are  undoubtedly  maintained  with 
great  force  of  argument,  but  there  are  other  points  in 


192  BLASPHEMY. 


wMcli  he  afforded  just  ground  for  the  suspicions  alleged 
against  him ;  and  that  this  was  the  opinion  of  many  divines 
of  that  period  appeared  from  the  numerous  answers.  *  *  * 
"The  controversy,  however,  was  not  to  be  left  to  divines, 
who  may  be  supposed  judges  of  the  subject.  The  parlia- 
ment which  met  June  18,  1625,  thought  proper  to  take  up 
the  subject,  and  Mr.  Mountagu  was  ordered  to  appear 
before  the  House  of  Commons,  and  being  brought  to  the 
bar  July  17,  the  speaker  told  him,  that  it  was  the  pleasure 
of  the  House,  that  the  censure  of  his  books  should  be 
postponed  for  some  time ;  but  that  in  the  interim  he  should 
be  committed  to  the  custody  of  the  serjeant  at  arms.  He 
was  afterwards  obliged  to  give  the  security  of  2000 Z.  for 
his  appearance.  The  king,  however,  was  displeased  with 
the  parliament's  proceedings  against  our  author;  and 
bishop  Laud  applied  to  the  duke  of  Buckingham  in  his 
favour;  Mr.  Mountagu  also  wrote  a  letter  to  that  duke, 
entreating  him  to  represent  his  case  to  his  majesty;  and 
this  application  was  seconded  some  few  days  after  by  a 
letter  of  the  bishops  of  Oxford,  Rochester,  and  St.  David's, 
to  the  duke.  In  the  next  parliament,  in  1626,  our  au- 
thor's ^Appello  Csesarem'  was  referred  to  the  consideration 
of  the  committee  for  religion,  from  whom  Mr.  Pym  brought 
a  report  on  the  18th  of  April  concerning  several  erroneous 
opinions  contained  in  it.  Upon  this  it  was  resolved  by 
the  House  of  Commons,  1.  ^That  Mr.  Mountagu  had  dis- 
turbed the  peace  of  the  church,  by  publishing  doctrines, 
contrary  to  the  articles  of  the  church  of  England,  and  the 
book  of  homilies.  2.  That  there  are  divers  passages  in 
his  book,  especially  against  those  he  calleth  puritans,  apt 
to  move  sedition  betwixt  the  king  and  his  subjects,  and 
between  subject  and  subject.  3.  That  the  whole  frame  and 
scope  of  his  books  is  to  discourage  the  well-affected  in 
religion  from  the  true  religion  established  in  the  church, 
and  to  incline  them,  and,  as  much  as  in  him  lay,  to  re- 
concile them  to  popery.'  And  accordingly  articles  were 
exhibited  against  him;  but  it  does  not  appear,  that  this 
impeachment  was  laid  before  the  House  of  Lords,  or  in 
what  manner  the  Commons  intended  to  prosecute  their 
charge,  or  how  far  they  proceeded.     ♦     ♦     ♦ 


PROSECUTIONS   FOR  CRIMES    AGAINST   RELIGION.         193 

*'This  prosecution  from  the  parliament  seems  to  have 
recommended  him  more  strongly  to  the  court,  for,  in  1628, 
he  was  advanced  to  the  bishopric  of  Chichester,  on  the 
death  of  one  of  his  opponents.  Dr.  Carleton.  On  August 
22,  1628,  the  day  appointed  for  his  confirmation,  a  singu- 
lar scene  took  place.  On  such  occasions  it  is  usual  to 
give  a  formal  notice,  that  if  any  person  can  object  either 
against  the  party  elected,  or  the  legality  of  the  election, 
they  are  to  come  and  offer  their  exceptions  at  the  day  pre- 
fixed. This  intimation  being  given,  one  Mr.  Humphreys, 
and  William  Jones,  a  stationer  of  Ix)ndon,  excepted  against 
Mountagu  as  a  person*  unqualified  for  the  episcopal  func- 
tion, charging  him  with  popery,  Arminianism,  and  other 
heterodoxies,  for  which  his  books  had  been  censured  in 
the  former  parliament.  Fuller  tells  us,  ^that  exception 
was  taken  at  Jones's  exceptions  (which  the  record  calls 
^praetensos  Articulos)'  as  defective  in  some  legal  formal- 
ities. I  have  been  informed,'  continues  he,  ^it  was  al- 
1  edged  against  him  for  bringing  in  his  objections  viva  voce, 
and  not  by  a  proctor,  that  court  adjudging  all  private 
persons  effectually  dumb,  who  speak  not  by  one  admitted 
to  plead  therein.  Jones  returned,  that  he  could  not  get 
any  proctor,  though  pressing  them  importunately,  and 
profering  them  their  fee  to  present  his  exceptions,  and 
therefore  was  necessitated  ore  tenus  there  to  alledge  them 
against  Mr.  Mountagu.  The  register  mentioneth  no  par- 
ticular defects  in  his  exceptions ;  but  Dr.  Rives,  substitute 
at  that  time  for  the  vicar-general,  declined  to  take  any 
notice  of  them,  and  concludeth  Jones  amongst  the  con- 
tumacious, "quod  nullo  modo  legitime  comparuit,  nee 
aliquid  in  hac  parte  juxta  Juris  exigentiam  diceret,  ex- 
ciperet,  vel  opponeret."  Yet  this  good  Jones  did  bishop 
Mountagu,  that  he  caused  his  addresses  to  the  king  to 
procure  a  pardon,  which  was  granted  unto  him,  in  form 
like  those  given  at  the  coronation,  save  that  some  particu- 
lars were  inserted  therein,  for  the  pardoning  of  all  errors 
heretofore  committed  either  in  speaking,  writing,  or  pub- 
lishing, whereby  he  might  hereafter  be  questioned.'  " 


194  BLASPHEMY. 


Alexander  Leighton — 1630.^^ 

Alexander  Leighton  (1568-1649)  was  a  physician  and 
divine,  descendent  from  an  ancient  and  wealthy  family. 
He  graduated  at  the  University  of  St.  Andrews  as  M.  A. 
and  Leyden  University  as  M.  D.  He  was  interdicted  prac- 
ticing medicine  mainly  because  "being  perverse  as  to  ec- 
clesiastical affairs."  In  1624  he  published  "  'Speculum  Belli 
Sacri  or  the  Looking  Glass  of  the  Holy  War,'  a  book  against 
Romanism  which  involved  him  in  much  trouble.  Some 
years  later  he  prepared  a  petition  to  parliament  against 
episcopacy  to  which  he  secured  many  influential  signa- 
tures. He  took  this  to  the  continent  and  expanded  it  into 
a  book,  'An  Appeal  to  the  Parliament,  or  Sion's  Plea 
against  Prelacie'  which  was  published  in  Holland  in  1628. 
#  ♦  ♦  ♦    rpjjg  ][jQQ^  ^gg  jjQ^  Qjjjy  ^  virulent  attack  on  prelacy, 

but  *an  appeal  to  political  presbyterianism  to  take  the 
sword  in  hand.'  ♦  ♦  ♦  Besides  his  strictures  on  episcopacy, 
his  violent  abuse  of  the  queen  [separate  from  the  above 
book  I  judge] ,  whom  he  styled  the  'daughter  of  hell,  a  can- 
anite,  and  an  idolatress'  made  Leighton  a  marked  man.'^ 
He  was  arrested  Feb.  17, 1630,  on  a  warrant  from  the  High 
Commission  Court.  In  the  June  following  he  was  tried  in 
the  Star  Chamber  Court,  during  his  absence  on  account  of 
illness,  and  sentenced  to  fine,  whipping,  pillory,  slitting 

"Bibliography   on    Alexander   Leighton's    Case.     Speech   of    Sir    R. 
Heath     *     *     *     in  the  case  of  Alexander  Leighton  in  the   Star 
Chamber,  June,  4th,  1630  London,  Camden  Miscellany,  v.  7,  1847. 
A  brief  account  of  Archbishop  Laud's  cruel  treatment  of  Dr.  Leigh- 
ton.   See,  Benson  (G.)  D.D.    A  collection  of  Tracts  etc.  1748. 
An  epitome  or  brief  discovery  from  the  beginning  to  the  end  of  the 
great  troubles  that  Dr.  Leighton  suffered  in  his  body,  estates,  and 
family,  wherein  is  laid  down  the  cause  of  those  sufferings,  namely, 
that  book  called  Sion's  Plea  against  prelacie.   London,  1646. 
Dictionary  of  National  Biography,  vol.  23,  p.  1-2. 
Reese.     Richard,     A  compendious  Martyrology,  containing  an  ac- 
count of  the  sufferings  and  constancy  of  Christians  in  the  different 
persecutions  which  have  raged  against  them  under  pagan  and  popish 
governments.    London,  1815,  vol.  3,  pp.  433-438. 
Rushworth.    John,    Historical  Collections,  vol.  3,  Appendix,  p.  29. 
Appendix  Star  Chamber  Reports. 

An  appeal  to  the  Parliament ;  or  Sion's  plea  against  prelacie,  1628. 
Speculum  Belli  Sacri,  or  looking  glass  of  the  holy  war.    1624. 
Digest  of  the  law  concerning  libels,  (1765),  p.  72. 
Macaulay's  Hist,  of  Eng.,  v.  2,  p.  98. 
Howell's,  State  Trials,  v.  3 :  383  to  387. 


PROSECUTIONS   FOR   CRIMES    AGAINST    RELIGION.         195 

of  nose  and  cutting  off  of  ears,  and  branding  in  the  face> 
and  degraded  from  orders. 

Leighton  once  escaped,  was  rearrested  and  remained  in 
prison  till  1640  when  a  change  in  political  situations  in- 
sured his  release  by  the  Long  Parliament.  It  is  said  that: 
"He  was  a  puritan  of  the  narrowest  type  and  in  contro- 
versy a  man  of  'violent  and  ungovemed  heat.' "  In  1642 
he  was  rewarded  for  his  zeal  by  an  appointment  as  keeper 
of  Lambeth  House,  then  turned  into  a  state  prison. 

This  Leighton  case  well  illustrates  the  rule  that  "it  is 
in  the  power  of  the  prosecution  to  call  the  offence  what 
he  pleases" — ^in  this  case  sedition  or  blasphemy.  Bishop 
Laud,  one  of  the  judges  of  Leighton,  called  it  both  blas- 
phemy and  high  treason.  Attorney  General  Sir  R.  Heath 
called  it  sedition. 

The  case  of  Leighton  excited  much  interest  at  the  time 
and  accordingly  there  has  been  preserved  a  more  complete 
record  than  is  usual.  This  then  affords  an  opportunity  for 
a  better  portrayal  of  the  spirit  which  engendered  prosecu- 
tions for  religious  offences  than  is  commonly  the  case.  Ac- 
cordingly there  will  now  be  reproduced  a  rather  detailed 
account  of  all  that  happened,  so  we  may  make  the  better 
comparison  of  the  spirit  behind  such  prosecutions  with 
the  spirit  that  inspired  our  constitutional  guarantees  for 
intellectual  liberty.  Such  a  comparison  will  enable  us  to 
make  a  better  decision  as  to  whether  our  constitutions 
were  merely  designed  to  change  the  name  of  such  crimes 
and  ameliorate  the  penalty,  or  were  designed  to  destroy 
the  jurisdiction  upon  which  such  prosecutions  rested. 

"On  February  29,  1629,  Dr.  Leighton,  coming  out  of 
Blackfriars  church,  was  seized  by  a  warrant  from  the  high 
commission  court;  and,  by  a  multitude  of  men  armed,  was 
dragged  to  Bishop  Laud's  house.  From  thence,  without 
any  examination,  he  was  carried  to  Newgate,  and  there 
clapt  in  irons,  and  thrust  into  a  loathsome  dog-hole,  full 
of  rats  and  mice:  and  the  roof  being  uncovered  the  rain 
and  snow  beat  in  upon  him,  having  no  bedding,  nor  place 
to  make  a  fire,  except  the  ruins  of  an  old  smoky  chimney ; 
where  he  had  neither  meat  nor  drink  from  the  Tuesday 
night  till  Thursday  noon.    In  this  loathsome  and  miserable 


196  BLASPHEMY. 


place  he  continued  fifteen  weeks,  not  any  of  his  friends,  or 
even  his  wife,  being  permitted  to  come  near  him,  and  was 
denied  a  copy  of  his  commitment.  On  the  fourth  day  after 
his  imprisonment,  the  pursuivants  belonging  to  the  high 
commission  went  to  his  house,  and  laid  violent  hands  upon 
his  distressed  wife,  using  her  with  the  most  shameful  and 
barbarous  inhumanity ;  and  holding  a  pistol  to  the  breast 
of  a  child  five  years  old,  threatening  to  kill  him,  if  he  would 
not  inform  them  where  the  books  were,  by  which  the  child 
was  so  frightened  that  he  never  recovered.  They  broke 
open  presses,  chests,  boxes,  &c.  though  his  wife  was  will- 
ing to  open  all.  They  carried  away  all  the  books,  manu- 
scripts, apparel,  household  stuff,  and  other  things,  leav- 
ing nothing  they  wished  to  possess.  During  his  confine- 
ment in  Newgate,  it  appeared  from  the  opinion  of  four 
physicians,  that  poison  had  been  given  him;  for  his  hair 
and  skin  came  off.  As  he  lay  in  this  deplorable  situation, 
sentence  was  passed  upon  him  in  the  star-chamber,  even 
without  hearing  a  single  word  he  had  to  say,  though  a 
certificate  from  four  physicians  and  an  attorney  was  given 
of  the  dreadful  state  of  his  complaint. 

Charges  Against  Leighton. 

"But  it  will  be  requisite  to  give  a  particular  account  of 
the  charges  brought  against  this  unhappy  man.  June  4, 
1630,  an  information  was  exhibited  again  Dr.  Leighton  in 
the  star-chamber,  by  attorney-general  Heath,  when  he  was 
charged  with  having  published  and  dispersed  a  scandalous 
book  against  the  king,  peers,  and  prelates,  entitled,  ^Sion's 
Plea  against  the  Prelacie;'  in  which,  among  other  things, 
he  sets  forth  these  false  and  seditious  assertions  and  posi- 
tions following: 

"1.  ^That  we  do  not  read  of  greater  persecution,  and 
higher  indignity  done  upon  God's  people  in  any  nation 
professing  the  gospel,  than  in  this  our  island,  especially 
since  the  death  of  Queen  Elizabeth. 

"2.  *He  terms  the  prelates  of  this  realm  men  of  blood, 
and  enemies  to  God  and  the  state ;  and  saith,  that  the  main- 
taining and  establishing  of  bishops  within  this  realm,  is  a 
main  and  master  sin  established  by  law,  and  that  ministers 


PROSECUTIONS    FOR   CRIMES    AGAINST    RELIGION.         197 

should  have  no  voices  in  council  deliberative  and  decisive. 

"3.  *He  avows  the  prelacy  of  our  church  to  be  antichris- 
tian  and  eatanical,  and  terms  the  bishops  ravens  and  mag- 
pies, that  prey  upon  the  state. 

"4.  *He  terms  the  canons  of  our  church,  made  in  1603, 
non'Sensecanons. 

"5.  *He  disallows  and  contemns  the  ceremony  of  kneel- 
ing in  receiving  the  sacrament,  alleging  that  this  spawn 
of  the  beast  was  brought  forth  by  the  prelates  to  promote 
their  own  unlawful  standing. 

"6.  *He  affirms  that  the  prelates  have  corrupted  the  king, 
forestalling  his  judgment  against  God  and  goodness,  and 
most  audaciously  and  wickedly  calleth  his  majesty's  royal 
consort,  our  gracious  queen,  the  daughter  of  Heth, 

"7.  ^He  most  impiously  seems  to  commend  him  who  com- 
mitted the  barbarous  and  bloody  act  of  murdering  the  late 
Duke  of  Buckingham,  and  to  encourage  others  to  second 
him  in  the  like  wicked  and  desperate  attempt,  to  the  de- 
struction of  others. 

"8.  'He  layeth  a  most  seditious  scandal  upon  the  king, 
state,  and  kingdom,  wickedly  affirming,  'That  all  who  pass 
by  us  spoil  us,  and  we  spoil  all  who  rely  upon  us.'  And 
amongst  other  particulars,  instanceth  the  black  pining 
death  of  the  famished  Rochellers,  to  the  number  of  fifteen 
hundred,  in  four  months.  By  which  passages  and  wicked 
assertions,  he  doth  as  much  as  in  him  lay,  scandalize  his 
majesty's  sacred  person ;  his  religious  wise  and  just  govern- 
ment ;  the  person  of  his  royal  consort,  the  queen ;  the  per- 
sons of  the  lords  and  peers  of  the  realm,  especially  the 
reverend  bishops. 

"9.  *That  in  another  place  in  the  said  book,  endeavoring 
not  only  to  slander  his  majesty's  sacred  person  and  govern- 
ment, but  to  detract  from  his  royal  power,  in  making  laws 
and  canons  for  ecclesiastical  government,  he  saith,  'That 
the  church  hath  its  laws  from  the  scripture,  and  that  no 
king  may  make  laws  in  the  house  of  God ;  for  if  they  might, 
then  the  scripture  would  be  imperfect.' 

"10.  'And  he  is  further  charged  in  another  place  in  the 
said  book,  with  these  words  following,  thinking  to  salve 
all  with  an  expression  of  his  sacred  majesty ;  'What  a  pity 


198  BLASPHEMY. 


it  is,  and  indelible  dishonour  it  will  be  to  you,  the  states 
representative,  that  so  ingenuous  and  tractable  a  king 
should  be  so  monstrously  abused,  to  the  undoing  of  him- 
self and  his  subjects.' 

"These  ten  particulars  contain  all  the  charges  brought 
against  Dr.  Leighton,  and  we  may  be  sure  they  were  the 
worst  that  could  be  collected  out  of  his  book,  his  enemies 
being  judges.  ♦  ♦  ♦  Dr.  Leighton,  in  his  answer  to  the 
above  charges,  confessed,  that  when  the  parliament  was 
sitting,  in  the  year  1628,  he  drew  up  the  heads  of  his  book ; 
and  having  the  approbation  of  five  hundred  persons  under 
their  own  hands,  some  of  whom  were  members  of  parlia- 
ment, he  went  into  Holland  to  get  it  printed.  Also,  that 
he  printed  betwixt  five  and  six  hundred  only  for  the  use  of 
the  parliament;  but  they  being  dissolved  before  the  work 
was  finished,  he  returned  home,  not  bringing  any  of  them 
into  the  kingdom,  but  made  it  his  special  care  to  suppress 
them.  He  confessed  his  writing  the  book,  but  with  no  such 
ill  intention  as  suggested  in  the  information.  His  only 
object  was  to  remonstrate  against  certain  grievances  in 
church  and  state,  under  which  the  people  suffered,  that 
the  parliament  might  be  induced  to  take  them  into  consid- 
eration, and  give  such  redress  as  might  be  most  for  the 
honour  of  the  king,  the  advantage  of  the  people,  and  the 
peace  of  the  church, 

Leighton^s  Defence. 

"When  the  cause  was  heard,  the  doctor's  defense  was 
read  at  length,  and  the  various  particulars  contained  in 
his  charges  were  read  out  of  his  book.  In  answer  to  the 
first  charge,  viz.  *That  we  do  not  read  of  greater  persecu- 
tion of  God's  people,  in  any  nation  professing  the  gospel, 
than  in  this  our  island,  especially  since  the  death  of  Queen 
Elizabeth ;'  he  confessed  the  words,  and  said,  'The  thing  is 
too  true,  by  the  prelates  taking  away  the  life  and  liveli- 
hood from  many  ministers  and  private  men,  many  of  whom 
have  been  pined  to  death  in  prison ;  and  many  have  wan- 
dered up  and  down  their  families  being  left  desolate  and 
helpless:  and  besides  this,  the  blood  of  souls  hath  been 
endangered,  by  the  removal  of  the  faithful  shepherds  from 


rR0J5ECUT10Xi>   F(/a   CRIMES    AGAINST    RELIGION. 

their  flocks.'  This  was  a  most  cutting  truth;  at  which 
Laud  was  so  exceedingly  enraged,  that  he  desired  the  court 
to  inflict  the  heaviest  sentence  that  could  be  inflicted  upon 
him.  This  they  did  to  his  lordship's  fullest  satisfaction. 
For  Leighton  was  condemned  to  be  degraded  from  his 
ministry,  to  have  his  ears  cut,  his  nose  slit,  to  be  branded 
in  the  face,  to  stand  in  the  pillory,  to  be  whipped  at  a  post, 
to  pay  ten  thousand  pounds,  (although  they  knew  he  was 
not  worth  so  much)  and  to  suffer  perpetual  imprisonment. 
The  grateful  sentence  being  passed  against  him.  Laud 
pulled  off  his  hat,  and  holding  up  his  hands,  gave  thanks 
TO  God,  who  had  given  him  the  victory  over  his  ene- 
mies. A  certain  knight  having  moveil  one  of  the  lords  rel- 
ative to  the  dreadful  nature  of  the  censure,  intimating  that 
it  opened  a  door  to  the  prelates  to  inflict  the  most  disgrace- 
ful punishments  and  tortures  upon  men  of  quality;  that 
lord  replied,  that  it  was  designed  only  for  the  terror  of 
others,  and  that  he  would  not  have  any  one  to  think  the 
sentence  would  ever  be  executed.  This  worthy  lord,  how- 
ever, was  greatly  mistaken;  for  Laud  and  his  adherents 
caused  the  dreadful  sentence  to  be  executed  with  the  ut- 
most rigour  and  severity." 

The  argument  of  Sir  Robert  Heath  the  Attorney  Gen- 
eral has  been  preserved  to  us,  and  lengthy  quotations  will 
be  made  even  at  the  risk  of  duplication  of  sentiment.  It 
all  helps  us  to  understand  the  spirit  in  which  censorial 
laws  were  conceived  and  by  contrast  helps  us  to  under- 
stand what  our  constitutions  were  meant  to  prevent.  Now 
comes  the  language  of  the  learned  prosecutor. 

Argument  Against  Leighton. 

"The  matter  of  the  book  is  a  bitter  invective  against 
the  reverend  Bishops  of  this  Church  and  Kingdoms  of  Eng- 
land; but  this  not  against  ther  persons  or  any  personall 
fault  of  thers,  but  against  ther  functions,  against  ther 
calling,  against  the  prelacy.  *  *  *  To  sclaunder  the  Kynge 
by  his  ministers,  or  in  his  ministers  is  all  one  as  without 
that  circumlocution  to  sclaunder  the  Kynge  himself,  for 
that's  the  meaning  of  it  in  other  terms.  ♦  •  ♦  I  make  bold 
to  affirme  that  whoever  lives  under  a  monarchye  and 


200  BLASPHEMY. 


would  reject  the  dicipline  of  the  Church  under  the  Bishops, 
would  if  they  durst,  reject  the  government  of  a  kynge  and 
interteyn  a  popular  government.  *  *  * 

"This  brainsick  man  and  his  complices,  whose  religion 
is  never  to  be  contented  with  the  present  times,  hath  in- 
devoured,  with  as  much  malice  as  cann  be  imagined,  to 
defame  and  to  destroy  the  whole  prelacye.  He  hates  them 
himself,  and  desires  that  all  men  else  should  hate  them,  et 
quern  quisque  odit^  periisse  expetit;  and  thes  are  the  de- 
grees he  goes  by. 

"And  this  hatred  I  may  thus  distinguish  of.  It  is  reall, 
it  is  not  personall ;  for  uppon  his  examinations  he  conf ess- 
eth  for  the  honour  of  thes  reverend  Bishops  that  he  know- 
eth  noe  ill  by  any  of  ther  persons ;  but  ther  calling  is  such 
as  is  not  to  be  indured. 

"To  come  to  the  booke  it  selfe.  It  is  directed  to  the 
Court  of  Parliament  in  the  intitleing  therof.  And  the 
last  conclusion  of  it  is  thus : 

High  must  you  soar,  but  glory  gives  thee  wings, 
Noe  lowe  attempt  a  starlike  glorye  brings. 

"And  this  pitch  of  pride  he  himself  beginns  with;  for 
in  the  preface  to  his  books,  in  the  first  page,  he  doth  ar- 
rantly  and  impudently  sclaunder  the  sacred  persons  and 
happy  government  of  his  Majesty  that  nowe  is,  and  of  our 
late  soveraign  of  ever  blessed  memory,  in  thes  false  and 
sclaunderous  words:  'We  doe  not  reed  of  greater  perse- 
cution, higher  indignitie,  and  indemnitie  done  unto  God's 
people  in  any  nation  professinge  the  Gospell  then  in  this 
our  island,  specially  since  the  death  of  Queen  Elizabeth.' 

"And  we  are  bound  to  preserve  the  honour  of  our  King 
and  Princes,  and  of  the  State  we  live  in,  not  only  from 
the  malice  of  the  present  times,  but  of  the  future  ages 
also.  And  in  the  same  preface  to  his  booke,  however  he 
pretends  he  hateth  not  the  persons  of  the  Bishops,  yet  he 
expresses  his  love  to  them  in  this  hatefull  manner;  he 
states  them  men  of  bloud,  enemyes  to  God  and  the  State, 
and  the  prelacye  he  calls  anti-christian  and  satanicall. 

"These  2  things  I  observe  to  your  Lordships  in  the  pref- 
ace, wherby  he  ushers  in  an  ill  opinion  of  the  State  in 


TROSBCUTIONS   FOR   CRIMES    AGAINST   RELIGION.        201 

which  he  liveth,  and  a  perfect  hatred,  as  himself  termes  it^ 
to  the  persons  of  the  Bishops. 

"From  the  preface  I  come  to  the  booke  itself,  wherln, 
to  omitt  a  multitude  of  idle,  wicked,  and  malitious  pas- 
sages, whereof  every  leaf  is  full,  I  have  made  choise  to 
single  out  only  14  severall  places. 

"1.  The  first  is  page  3d.  That  he  might  the  better  worke 
on  the  consciences  of  weake  and  silly  men,  he  layeth  this 
downe  as  a  position,  That  this  is  the  maine  and  master 
Sinn  which  is  established  by  a  lawe  to  maynteyne  and  con- 
tinue Bishops. 

"2.  Next  to  introduce  the  plausible  doctrine  of  parity 
in  the  Church  amongst  his  discontented  disciples,  and  of 
a  parity  by  consequence  a  confusion,  page  7th,  he  lays 
down  another  position,  That  ail  ministers  have  voyce  in 
counsell,  both  deliberative  and  decisive. 

"3.  That  he  may  the  better  prevaile  herein,  he  indeav- 
ours  next  to  bring  the  persons  of  the  Bishops  into  con- 
tempt by  terming  them  ravens  and  pye  magotts,  which 
prey,  upon  the  State.  35.  Thes  sorts  of  men  have  the  humil- 
ity that  Diogenes  had,  he  contemned  Platoes  pride  fastw 
ma  j  ore. 

"4.  In  the  fourth  place  he  discovers  that  infinite  pride 
of  hart  which  lurks  in  men  of  this  stamp,  and  withall  the 
gross  ignorance  that  cannot  distinguish  betwene  a  reverent 
devotion  at  the  receaving  of  the  Communion  and  an  idola- 
trous adoration  of  the  Mass,  expressed  fol.  70,  in  thes 
words:  The  suggestion  of  false  feares  to  the  King,  and 
the  seeking  of  ther  owne  unlawfull  standinge,  brought 
forth  that  revived  spawne  of  the  beast,  kneeling  in  re- 
ceaving of  the  sacrament,  for  the  greater  reverence  thereto, 
wherby  the  Papists  had  contentment.' 

"5.  Then  he  comes  holme  to  the  Kinge  himself,  and,  at 
the  first  stepp,  he  takes  uppon  him  to  crye  downe  the 
King's  powre  in  causes  ecclesiastically  which  besides  the 
inherent  right  therof  in  the  Crown,  is  established  by  Par- 
liament. See  pages  42  and  43.  Thus  he  saith:  That 
statute  1  Eliz.  cap.  1,  giving  powre  to  the  Queen  to  con- 
stitute and  make  a  commission  in  causes  ecclesiastical  is 
found  inconvenient,    because  abusing  that  powre  given  to 


202  BLASPHEMi. 


one  or  more  they  wrong  the  subject,  wheras  by  virtue  of 
the  statute  powre  only  ecclesiastical  is  graunted,  yet  by 
letters  patents  from  the  King,  unsoundly  grounded  on  the 
words  of  the  statute,  they  fine,  imprison,  do.,  which  is  a 
great  grief  and  a  wrong  to  the  subject/ 

^'A  hold  and  an  ignorant  censure  of  the  powre  of  the 
Kinge  and  of  the  lawes  of  the  Jcingdome,  which  he  under- 
standeth  not. 

"6.  But  this  is  not  enough  unless  with  a  proud  scome 
he  did  deride  the  ecclesiasticall  cannons,  which  have  ther 
life  from  the  Kinge,  terming  them,  page  63,  ^nonsence  can- 
nons.' 

"7.  Next  in  plaine  termes  thorough  the  sides  of  the 
Bishops  he  wounds  the  honour  of  the  King  himself,  for, 
Bpeaking  of  the  Bishops,  page  118,  he  saith  this:  *They 
corrupt  the  King,  forstalling  his  judgment  against  the 
good  and  goodness/ 

"8.  In  the  8th  place,  that  he  might  shewe  more  despite 
and  irreverence  to  the  person  of  the  Kinge,  he  speaks  scorn- 
fully of  the  person  of  His  Royall  Consort  the  Queen;  for, 
speaking  of  the  mariage  of  the  King,  page  172,  he  saith 
thus :  'That  God  suffred  him,  to  our  heavie  woe,  to  match 
with  the  daughter  of  Heth,  though  he  mist  an  Egyptian/ 

"9.  But  yet  he  is  not  at  the  hight,  but  he  wickedly  and 
trayterously  indevoureth  to  traduce  the  Kinge  on  his  very 
abilitye  of  governinge.  For,  page  175,  he  hath  thes  words : 
^Consider  then  what  a  pittie  it  is  to  all,  and  an  indelible 
dishonour  it  will  be  to  you,' — speakinge  to  the  Parliament, 
— *the  State  representative,  that  soe  ingenuous  and  tract- 
able a  King  should  be  so  monstrously  abused  by  the  bane 
of  Princes,' — meaning  the  Bishops, — *to  the  undoinge  of 
himself  and  of  his  subjects.' 

"10.  My  Lords,  one  would  thinke  this  wicked  man  could 
not  rayse  his  malice  to  a  higher  pitch,  but  he  doth  it ;  for 
a  little  after,  speaking  of  the  late  Duke — this  sort  of  people 
spare  neather  livinge  nor  dead — ^he  doth  impiously  and 
prophanly  give  countenance  to  the  barbarous  murder  of 
that  noble  Lord,  and  irrelegiously  termeth  it  to  be  God's 
blowe,  and  excites  others  to  the  like;  and  wher  he  ment 
that  second  blowe  should  light,  God  knowes.    His  words 


PROSECUTIONS   FOR   CRIMES    AGAINST    RELIGION.         203 

are  tlies:  *A  fourth  reason  is  from  God's  offring  of  him- 
self to  guide  you  by  the  hand,  as  we  have  shewed,  who  by 
giving  of  the  first  blowe  hath  in  mercye  removed  the  great- 
est nayle  in  all  ther  tent,  and  will  not  you  followe  holme?' 
Page  176. 

"11.  The  next  thing  I  shall  observe  to  your  Lordships  is 
that  which  moves  a  doubt  in  me,  wheather  the  Jesuits  or 
the  Protestants,  frayed  out  of  ther  witts,  be  the  greatest 
enimys  to  a  monarchical  government.  I  raise  my  doubt 
out  of  thes  words  in  his  book,  page  191 :  ^But  the  Church 
hath  her  lawes  from  the  Scriptures,  neather  may  any  King 
make  laives  in  the  howse  of  God^  for  if  they  might  the 
Scripture  should  he  imperfect/  Thes  words  spoken  by  a 
discreet  man  as  D.  Whitacre  was,  out  of  whom  he  citeth 
the  words,  may  have  a  good  sence  applied  to  matters  of 
faith  and  doctrine  in  religion,  for  then  sola  Scriptura  est 
norma  fidei.  But  being  spoken  by  Mr.  Leighton,  who  ap- 
plieth  them  to  Church  discipline,  they  are  full  of  pride  and 
aversenes  from  govemmei^t. 

"12.  In  the  12th  place  I  shall  observe  a  passage  in  his 
booke  which  will  aske  some  payne  to  distinguish  from  a 
traytor.  His  words,  page  208,  are  thes :  *But  put  the  case 
that  the  good,  harmless  King  be  a  captivated  Joash  by 
Athaliah's  Arminianised  and  Jesuited  crewe,  or  a  misledd 
H^nry  the  Sixth  dispossest  of  his  faithfullest  frends  and 
best  counsell  by  the  pride  of  the  French,  or  a  Henry  the 
Third  overawed  by  a  divilish  dominering  favourite,  or  an 
Edward  the  Sixth  overpoysed  and  borne  downe  from  his 
good  purposes  to  God's  glorie  and  the  good  of  the  State 
by  the  halting  and  falshood  of  the  prelats  and  ther  Romish 
confederats,  soe  that  such  a  King,  though  he  hold  the 
scepter,  yet  he  sweyeth  not  the  scepter,  neather  cann  he 
free  himself  and  execute  deseignes,  because  the  sonns  of 
the  mann  of  sin  are  toe  hard  for  him.' 

"Whether  this  be  a  language  fitt  for  a  subject  to  speake 
but  by  way  of  supposition  of  his  soveraign,  I  submitt  to 
your  judgments. 

"13.  But  next,  my  Lords,  for  his  commendation,  I  shall 
say  this,  that  he  is  very  indifferent,  for  he  speares  neather; 
for,  page  202,  he  hath  thes  words: — ^Our  King,  counsel, 


204  BLASPHEMY. 


nobles,  ministers,  and  all  sortes  of  people  are  wofully  cor- 
ruptly by  that  Eomish  dross.'  Now,  my  Lords,  yon  have 
your  shares  in  plain  termes. 

"14.  But,  for  the  14th  and  last  thing  which  I  shall  ob- 
serve out  of  his  book,  I  am  soe  far  from  commending  him 
that  I  cann  not  forgive  him,  for  in  that,  like  an  ingrate 
viper,  he  indevors  to  render  the  King  and  the  kingdome 
and  the  whole  nation  a  scorne  and  a  reproch  to  the  whole 
world;  for,  page  269,  speaking  of  our  assistaunce  to  our 
neighbours  of  the  religion,  he  hath  thes  words : — 'All  that 
pass  by  spoile  us,  and  we  spoile  all  that  relye  uppon  us. 
To  omitt  many  instances  which,  being  too  well  known, 
makes  us  odious  to  the  world,  lett  us  touch  upon  the  last, 
namely,  the  black  pining  death  of  the  famished  Rochellers, 
to  the  number  of  15,000  in  4  moneths,  besids  thos  that  had 
formerly  perished,  proclaimeth  to  the  world  the  vanetye, 
if  not  the  falshood,  of  our  helpe.' 

"Thus  stands  this  defendant  convicted,  not  by  a  decade 
of  arguments  only,  as  he  devided  his  book,  but  by  a  grand 
jurye,  of  severall  crymes,  whereof  every  single  one  wher 
enough  to  condemne.  ♦  ♦  * 

"I  come  nowe  to  his  pretences  for  an  excuse. 

"1.  That  he  did  it  out  of  conscience. 

"A  blind  zeale  and  a  misledd  conscience  are  noe  excuse 
for  a  seditious  pamphlett.  All  the  hereticall  scismatibes, 
nay  all  the  traytors  in  the  world,  may  say  the  like. 

"2.  That  he  intended  to  present  it  to  the  Parliament. 

"This  a  lay  heresye,  and  fitt  to  be  condemned  by  this 
great  Counsell ;  as  if  it  were  lawfull  or  tollerable  to  sclaun- 
der  the  King  or  the  Government  in  Parliament. 

^^The  Parliament  is  a  great  Court ^  a  great  Counsell,  the 
great  Counsell  of  the  Kinge;  hut  they  are  hut  his  Counsell^ 
not  his  governours.  But  this  also  is  an  irregular  and  in- 
sufferable way,  growen  too  frequent  of  late,  to  put  all  in- 
formations, petitions,  breviatts  intended  for  the  Parlia- 
ment, in  print. 

"I  humbly  move  it,  and  offer  it  to  your  judgments,  as  a 
fitt  thinge  to  be  suppressed  for  the  future. 

"If  this  had  been  brought  to  the  Parliament,  I  make  noe 
doubt  but  the  success  therof  would  have  been  the  severe 


PROSECUTIONS    FOR   CRIMES    AGAINST   RELIGION.        205 

punishment  of  the  author:  for  I  find  the  judgment  of  Par- 
liament in  the  like  case,  W.  2,  cap.  33 ;  2  R.  2,  cap.  5 ;  1  and 
2  P.  and  M.'^ 

Now  we  come  to  the  sequel,  the  barbarous  punishment 
and  the  final  vindication  by  resolution  of  parliament. 

"The  sentence,  so  grateful  to  the  remembrance  of  Laud, 
was  inflicted  in  the  following  most  shocking  and  barbarous 
manner :  he  was  carried  to  Westminster,  where  he  had  one 
of  his  ears  cut  off,  then  one  side  of  his  nose  slit;  he  was 
branded  on  the  cheek  with  a  red-hot  iron,  with  the  letters 
S.  S.  for  a  sower  of  sedition;  he  was  put  in  the  pillory,  and 
kept  there  nearly  two  hours  in  frost  and  snow;  he  was 
then  tied  to  a  post,  whipped  with  a  triple  cord  to  that 
cruel  degree,  that  every  lash  brought  away  the  flesh;  and 
he  himself  affirmed,  ten  years  after,  that  he  should  feel  it 
to  his  dying  day.  And  after  this  shocking  barbarity,  he 
was  not  permitted  to  return  to  his  quarters  in  the  Fleet  in 
a  coach  prepared  for  the  purpose;  but  was  compelled,  in 
that  lamentable  condition  and  severe  season,  to  go  by 
water.  On  that  day  sevennight,  his  nose,  ear,  face,  and 
back  not  being  yet  curfed,  he  was  taken  to  the  pillory  in 
Cheapside;  when  the  other  ear  was  cut  off,  the  other  side 
of  his  nose  slit,  and  the  other  cheek  branded ;  he  was  then 
set  in  the  pillory,  and  whipped  a  second  time.  He  was 
then  carried  back  to  the  Fleet,  where  he  was  kept  ten 
weeks  in  dirt  and  mire,  not  being  sheltered  from  the  rain 
and  snow.  He  was  shut  up  in  close  prison,  and  not  suf- 
fered to  breathe  in  the  open  air  for  ten  or  eleven  years, 
until  the  meeting  of  the  long  parliament.  And  when  he 
came  forth  from  his  long  and  miserable  confinement,  he 
could  neither  wulh,  see  nor  hear.  The  sufferings  of  this 
learned  divine  greatly  moved  the  compassion  of  the  people; 
and,  surely,  the  records  of  the  inquisition  can  hardly  fur- 
nish an  example  of  similar  barbarity. 

"The  long  parliament  having  assembled.  Dr.  Leighton 
presented  a  petition,  November  7,  1640,  to  the  house  of 
commons,  complaining  of  the  hard  usage  he  had  met  with ; 
which  the  house  could  not  hear  without  several  interrup- 
tions with  floods  of  tears.  The  petition  being  read,  an 
order  passed  the  house,  "That  Dr.  Leighton  shall  have 


206  BLASPHEMY. 

liberty  by  the  warrant  of  this  house,  to  go  abroad  in  safe 
custody,  to  prosecute  his  petition  here  exhibited ;  and  that 
he  be  removed  out  of  the  common  prison,  where  he  now  is, 
into  some  more  convenient  place,  and  have  the  liberty  of 
the  Fleet."  A  committee  was  at  the  same  time  appointed 
to  take  his  case  into  mature  consideration. 

Lbighton  Vindicated. 

"Through  the  innumerable  complaints  from  all  quarters, 
and  a  multitude  of  other  concerns  which  came  before  the 
house  and  the  committee,  some  time  elapsed  before  the  re- 
sult of  the  examination  of  Dr.  Leighton's  case  came  forth. 
But,  April  21, 1641,  Mr.  Rouse  having  delivered  the  report 
of  the  committee,  the  house  came  to  the  following  resolu- 
tion : 

1.  "The  the  attaching,  imprisoning,  and  detaining  Dr. 
Leighton  in  prison,  by  warrant  of  the  high  commission,  is 
illegal. 

2.  "That  the  breaking  up  of  Dr.  Leighton's  house,  and 
taking  away  his  papers  by  Edward  Wright,  then  sheriff 
of  London,  and  now  lord  mayor,  is  illegal. 

3.  "That  the  said  Edward  Wright  ought  to  give  repara- 
tions to  Dr.  Leighton,  for  his  damages  sustained  by  break- 
ing open  his  house,  and  taking  away  his  papers  and  other 
goods. 

4.  "That  the  Archbishop  of  Canterbury,  then  Bishop  of 
London,  ought  to  give  satisfaction  to  Dr.  Leighton,  for  his 
damages  sustained  by  fifteen  weeks  imprisonment  in  New- 
gate, upon  the  said  bishop's  warrant. 

5.  "That  the  great  fine  of  ten  thousand  pounds  laid  upon 
Dr.  Leighton,  by  sentence  of  the  star-chamber,  is  illegal. 

6.  "That  the  sentence  of  the  corporal  punishment  im- 
posed upon  Dr.  Leighton ;  the  whipping,  branding,  slitting 
the  nose,  cutting  off  his  ears,  setting  in  the  pillory,  and  the 
execution  thereof,  and  the  imprisonment  thereupon,  are  il- 
legal. 

7.  "That  Dr.  Leighton  ought  to  be  freed  from  the  great 
fine  of  ten  thousand  pounds,  and  from  the  sentence  of  per- 
petual imprisonment,  and  to  have  his  bonds  delivered  to 
him,  which  he  entered  into  for  his.  true  imprisonment. 


PROSECUTIONS    FOR    CRIMES    AGAINST    RELIGION.         207 

8.  "That  Dr.  Leigh  ton  ought  to  have  good  satisfaction 
and  reparation  for  his  great  sufferings  and  damages  sus- 
tained by  the  illegal  sentence  in  the  star-chamber." 

This  Leighton  case  illustrates  very  well  several  impor- 
tant contentions.  To  criticize  the  function  and  jurisdic- 
tion of  the  prelates  is  to  criticize  the  King.  In  other  words, 
church  and  State  are  but  different  aspects  of  the  same 
thing.  Blasphemy  against  the  bishops  is  treason  against 
the  government,  and  is  punishable  under  either  or  both 
heads.  What  shall  come  under  these  designations  depends 
upon  the  kind  of  government  that  exists.  What  is  blas- 
phemous treason  against  an  episcopal  regime  may  not  be 
such  under  the  dominance  of  presbyterian  or  catholic  rule 
and  vice  versa,  because  the  meaning  of  God,  of  the  Holy 
Scriptures  and  of  the  province  of  government  changes  as 
the  official  religion  changes.  We  may  add  that  logically 
such  offences  should  disappear  when  all  established  re- 
ligion disappears. 

With  the  change  in  administration,  Leighton  was  lib- 
erated and  honored,  although  much  of  his  offence  con- 
sisted in  a  provocative  literary  style.  Will  it  now  be  said 
that  our  constitutional  guarantees  are  less  inclusive  in  this 
respect  than  the  House  of  Commons  in  1641? 

William  Prynne>— 1633.^^ 
William  Prynne  (1600-1669)  was  a  Puritan  pamphleteer 
and  a  member  of  the  bar.  In  the  light  of  what  happened 
to  him  later  it  is  interesting  to  remember  that  in  the  pref- 
ace to  one  of  his  earlier  pamphlets  "he  appealed  to  parlia- 
ment to  suppress  anything  written  against  Calvinistic  doc- 
trine and  to  force  the  clergy  to  subscribe  the  conclusions 

"  Howell's  State  Trials,  v.  3,  pp.  563-566-574-579-584-585. 
"Histrio — Mastix,  the  players   scourge  &  actors   tragedy."     [Rush- 
worth] 

Rushworth,  John.     Historical  Collections,  v,  2,  p.  380-471,  Edition 
1721;     also:  Appendix,  p.  69  and  117-133. 

A  new  Discovery  of  the  prelates  Tyranny  in  their  late  prosecutions 
of  Mr.  Wm.  Prynne,  Dr.  John  Bastwick  and  Mr.  H.  Burton.     1641. 
Wm.  Laud's  Works,  v.  3,  p.  221 ;  v.  6,  pp.  35-82. 
Dictionary  of  national  biography,  v.  46,  p.  432. 
As  to  Burton  see:  House  of  Commons  Journal,  v.  2:  22,  102,  112, 
124,171; 

Bastwick,  H.  C.  Journal,  v.  2 :  22,  25,  90,  92,  125 ; 
Prynne,  H.  C.  Jour.,  v.  6.  Ill,  112,  115. 


208  BLASPHEMY. 


of  the  synod  of  Dort."  That  those  who  love  persecution 
may  become  the  victims  of  persecution  has  a  double  illu- 
stration in  this  man's  career. 

William  Pryn  as  the  author,  Michael  Spark's  as  printer, 
and  William  Buckner  for  licencing  were  tried  in  the  Star 
Chamber  Court  on  a  book  entitled  "Histrio-Mastix,  or  a 
scourge  for  stage  players,"  a  volume  of  over  1,000  pages. 
It  is  said  that  in  this  book  "he  exposed  the  liberties  of  the 
stage,  and  condemned  the  very  lawfulness  of  acting.  ♦  ♦  ♦ 
Because  the  Court  became  now  more  addicted  to  these 
ludicrous  entertainments,  and  the  Queen  herself  was  so 
fond  of  the  amusement  that  she  had  bore  the  part  of  a 
pastoral  in  her  own  royal  person.  ♦  ♦  ♦*  This  book  of 
Prynn's  was  shewed  her  as  levelled  at  her,  there  being  a 
reference  in  it  %omen  actore  notorious  whores' ;  though  in 
truth  the  book  was  published  six  weeks  before  the  queen's 
acting." 

All  this  of  course,  had  in  it  an  element  of  pretence. 
Prynn  was  a  religio-political  disturber  and  must  be  pun- 
ished and  any  pretence  was  adequate.  The  charge  was 
labelled  sedition,  but  manifestly  was  aimed  at  his  puritan- 
ism.  Mr.  Attorney  General  Noy  pointed  out  many  reflec- 
tions upon  the  established  church  and  clergy  and  hoped 
the  Court  of  High  Commission  would  also  take  notice  of 
the  book  in  its  blasphemous  aspects.  The  comments  of  the 
judges  show  a  dominance  of  religious  motive  for  the  con- 
victions and  the  technical  demarkation  of  the  offenses  of 
blasphemy  and  sedition  are  wholly  ignored.  I  supply  some 
of  their  comment. 

Francis  Lord  Cottington  said :  "That  which  hath  been 
more  remarkable  is,  his  spleen  against  the  Church  and 
Government  of  it.  *  *  ♦  Surely  he  was  assisted  [in  writ- 
ing] immediately  by  the  Devil  himself,  or  rather  he  hath 
assisted  the  Devil.  He  hath  written  a  took  against  due 
reverence  and  honor,  which  all  Christians  owe  to  our 
Saviour,  Jesus,  this  doth  convince  my  judgment  against 
him,  *  ♦  *  He  liketh  nothing,  no  state  or  sex ;  music,  danc- 
ing, &c.,  unlawful  even  in  Kings." 

L.  C.  J.  Richardson  in  passing  sentence  said:  "I  be- 
seech your  lordships  to  give  me  leave  but  in  a  word  to  read 


PROSECUTIONS   FOR   CRIMES   AGAINST   RELIGION.        209 


unto  you  what  he  writes  of  dancing,  &c.  'It  is  the  Devils 
profession;  and  he  that  entereth  into  a  dance,  entereth 
into  a  devilish  profession,  and  so  many  paces  in  a  dance 
so  many  paces  to  hell/  This  is  that  which  he  conceiveth 
of  Dancing,  'The  woman  that  singeth  in  the  dance,  is  the 
prioress  of  the  Devil  and  those  that  answer  are  clerks,  and 
the  beholders  are  the  parishioners,  and  the  music  are  bells, 
and  the  fiddlers  are  the  minstrels  of  the  Devil.'"  Of 
course,  thus  to  describe  a  church  whose  prelates  allowed 
such  things  and  whose  political  coadjutors  attended  at 
such  places,  must  be  treason  against  both  God  and  his 
divinely  appointed  government.  "For  Mr.  Prynn,  I  do 
judge  you  by  your  book  to  be  an  insolent  spirit  and  one 
that  did  think  by  his  book  to  have  got  the  name  of  a  Re- 
former, to  set  up  the  Puritan  or  separatist  faction/' 

The  Earl  of  Dorset  spake  to  this  effect:  "This  brittel 
Conscience  Brother,  [Prynne]  that  perhaps  starts  at  the 
sight  of  the  Corner-Cap,  sweats  at  the  Surplice,  swoons 
at  the  sign  of  the  Cross,  and  will  rather  die  than  put  on 
Woman's  apparel  to  save  his  life,  yet  he  *  *  *  misapplies 
texts  with  false  interpretations,  ♦  ♦  *  and  yet  this  man  is 
a  pillar  of  the  church.  ♦  *  *  You  seemed  by  the  title  of 
your  Book  to  scourge  Stage-Plays,  yet  it  was  to  make 
people  believe  that  there  was  an  apostasy  in  the  Magi- 
strates." 

Now  listen  to  this  fiction  like  unto  our  fictions  about  a 
psychologic  tendency  to  a  disturbance  of  the  peace :  This 
judge  continued:  "It  is  not  Mr.  Attorney  that  calls  for 
judgment  against  you,  but  it  is  all  mankind  that  are  par- 
ties agrieved,  and  they  call  for  judgment.  Mr.  Prynn  I 
do  believe  you  to  be  a  Schism-Maker  in  the  Church,  a  Sedi- 
tion Sower  in  the  Common-Wealth,  a  Wolf  in  sheeps  cloth- 
ing; in  a  word  omnium  malorum  nequissimus,"  and  much 
more  intense  and  vulgar  vituperation.  Prynn  was  fined 
10.000£,  imprisoned  for  life,  his  ears  cut  off,  his  nose  slit, 
his  forehead  branded  and  all  copies  of  his  book  burnt. 

From  the  Jail,  in  1636,  he  caused  to  be  published  an 
anonymous  attack  on  Bishop  Wren  entitled  "News  from 
Ipswich"  for  which  he  was  again  brought  before  the  Star 
Chamber  Court.    On  June  14,  1637,  Prynn  was  again  sen- 


210  BLASPHEMY. 


tenced  to  5.000£  fine  and  imprisonment  for  life,  and  to 
loose  whatever  stump  of  an  ear  he  might  have  left,  and 
to  be  branded  on  the  cheek  SL.  meaning  "seditious  li- 
beler."  (See,  Burton's  Case,  following.) 

The  Long  parliament  declared  Prynn's  conviction  il- 
legal gave  him  liberty,  restored  his  honors  and  voted  him 
pecuniary  reparation.  When  Laud's  turn  came  to  go  to 
the  gallows,  it  was  Prynn  who  managed  the  prosecution. 
Again,  those  who  love  persecution  may  become  the  vic- 
tims of  persecution.  This  was  true  both  of  Prynn 
and  his  persecutor.  All  is  easy  if  guilt  under  an  uncer- 
tain statute  may  be  predicted  upon  the  mere  disapproval  of 
ones  opinions.  That  emotional  disapproval  always  sup- 
lies  the  conviction  of  a  dangerous  psychologic  tendency  as 
the  quality  of  that  which  is  disapproved. 

Which  conception  of  schism-maker  are  we  to  punish 
under  the  Connecticut  blasphemy  law?  That  of  Laud  and 
others  who  condemned  Prynn?  Or  that  of  the  Long  Par- 
liament which  honored  Prynn?  Does  our  constitution 
provide  for  less  liberty  than  the  resolution  of  the  Long 
Parliament  as  to  indulging  one's  "spleen  against  the 
church"  and  one's  "insolent  spirit"? 

John  Hayden— 1634.^^ 

I  reproduce  in  its  entirety  the  only  reference  to  this  case 
that  was  found. 

"John  Hayden  was  minister  in  Devonshire,  and  most 
grievously  persecuted  for  non-conformity.  Having  spoken 
in  his  sermon  against  setting  up  images  in  churcheSj  he 
was  forced  to  quit  the  county,  and  was  afterwards  appre- 
hended in  the  diocese  of  Norwich  by  Bishop  Harsnet,  who, 
taking  from  him  his  horse,  his  money,  and  all  his  papers, 
caused  him  to  be  shut  up  a  close  prisoner  in  the  common 
jail  of  Norwich  for  thirteen  weeks,  where  he  was  in  danger 
of  starving  for  want.  When  the  justices  at  the  quarter 
sessions  would  have  admitted  him  to  bail,  his  lordship  re- 
fused, and  sent  him  under  the  guard  of  a  pursuivant  to 
the  high  commission  in  London.  Having  been  kept  under 
confinement  two  whole  terms,  or  more,  he  was  brought 

"Reese,  Richard.    Compendious  martyrology,  v.  3,  p.  432. 


PROSECUTIONS    FOR    CRIMES    AGAINST   RELIGION.         211 

before  the  high  commission  in  the  consistory  of  St.  PauFs, 
when  he  was  deprived  of  his  ministry,  degraded  from  the 
sacred  function,  required  to  pay  a  fine,  and  sent  back  to 
prison.  Being  at  length  released  from  confinement, 
and  venturing,  in  the  year  1634,  to  preach  occasion- 
ally, without  being  restored,  he  was  again  apprehended 
and  sent  to  the  Gatehouse  by  Archbishop  Laud,  and  from 
thence  to  Bridewell,  where  he  w^as  whipt  and  kept  for  some 
time  to  hard  labour;  then  he  was  confined  in  a  cold  dark 
dungeon  during  the  whole  of  winter  without  fire  or  candle, 
being  chained  to  a  post  in  the  middle  of  the  room,  with 
heavy  irons  on  his  hands  and  feet,  having  no  other  food 
than  bread  and  water,  and  only  a  pad  of  straw  to  lie  upon. 
Before  his  release  could  be  obtained,  he  was  obliged  to  take 
an  oath,  and  give  bond,  that  he  would  preach  no  more,  but 
depart  out  of  the  kingdom  in  a  month,  and  never  more 
return.  All  this  was  done  without  any  exception  against 
his  doctrine  or  his  life." 

The  New  England  Puritans  were  very  much  opposed  to 
images  in  churches.  Did  their  blasphemy  statute  of  1642 
adopt  the  common  law  conception  of  blasphemy  and  so 
penalize  some  of  their  own  number?  If  this  statute  is  valid 
isn^t  it  a  crime  now  to  preach  against  images  in  churches? 
Can  such  a  statute  by  any  possibility  be  constitutional? 


XIV. 

PROSECUTIONS    FOR    CRIMES 
AGAINST  RELIGION. 

1637-1642 

Henry  Burton^  et  al. — 1637.^^ 

The  prosecution^  of  Burton,  Prynn  and  Bastwick  make 
so  conspicuous  a  page  in  the  history  of  religious  persecu- 
tion that  we  will  quote  the  story  quite  in  full,  first  in  the 
language  of  a  sympathetic  historian  and  then  state  the 
cause  of  complaint  quite  in  detail  and  in  the  language  of 
Bishop  Laud's  judgment  against  the  defendants. 

Henry  Burton  was  bom  in  Yorkshire,  and  educated  in 
St.  John's  College,  Cambridge.  He  was  made  clerk  of  the 
closet  to  Prince  Henry,  and  after  his  death  to  Prince 
Charles.  In  1623  he  was  appointed  to  attend  the  young 
prince  to  Spain ;  but  for  reasons  unknown,  he  was  set  aside. 

Mr.  Burton  was  a  person  of  a  most  heroical  spirit,  and 
never  feared  the  appearance  of  an  enemy,  as  appears  from 
the  account  he  gave  of  himself.  Speaking  of  his  various 
citations  before  Laud,  his  courage  was  such,  that  he  says, 
"I  was  not  at  any  time  before  him,  but  methought  I  stood 
over  him,  as  a  school-master  over  his  scholars;  so  great 
was  the  goodness  of  God  towards  me.  Being  convened  be- 
fore the  high  commission  for  my  book,  entitled,  ^Babel  no 
Bethel,'  Harnet,  Archbishop  of  York,  having  run  himself 
out  of  breath  with  railing  against  me  and  my  book;  and 
saying,  that  I  had  dedicated  my  book  to  the  parliament,  to 
incense  them  against  the  higher  powers,  (meaning  the 
king,)  I  answered,  *No,  my  lord,  I  am  none  of  those  who 
divide  the  king  and  parliament,  but  I  pray  God  unite  them 
together !' " 

He  afterwards  describes  the  prelatical  innovations  and 
usurpations,  and  how  he  set  himself  to  oppose  them,  say- 

"  Reese,  Richard.     Compendious  martyrology.    V.  3,  pp.  440-4SL 
Howell's,  State  trials,  V.  3,  pp.  714-742. 

212 


PROSECUTIONS    FOR    CRIMES    AGAINST    RELIGION.         213 

ing,  "I  more  and  more  disliked  the  prelates'  usurpations, 
and  tyrannical  government,  with  their  attempts  to  set  up 
popery.  Therefore  I  purposely  preached  upon  the  second 
chapter  to  the  Colossians,  crying  down  all  will-worship 
and  human  inventions  in  God's  service.  I  began  in  my 
practice,  as  in  my  judgment,  to  fall  off  from  the  ceremonies. 
Only  I  watched  for  an  occasion  to  try  it  out  with  them, 
either  by  dint  of  arguments,  or  force  of  law,  or  by  the 
king  and  his  council,  resolving  to  foil  my  adversaries, 
though  I  had  no  great  hope  of  success;  or,  at  least  discover 
the  mystery  of  iniquity  and  hypocrisy,  which,  like  a  white 
veil,  they  had  cast  over  all  their  foul  practices.  This  dis- 
covery I  took  to  be  of  no  small  importance."  *  ♦  ♦ 

Mr.  Burton  was  a  great  sufferer  in  the  cause  of  non-con- 
formity. In  the  year  1626,  he  was  convened  before  the 
high  commission,  when  he  would  have  received  the  censure 
of  the  ruling  ecclesiastics,  had  not  the  judges  interposed 
and  granted  a  prohibition,  which  they  might  do  according 
•to  law,  by  which  he  was  at  that  time  rescued  from  his 
cruel  oppressor.  Mr.  Burton  having  published  a  book,  en- 
titled, "The  Baiting  of  the  Pope's  Bull ;  or,  an  Unmasking 
of  the  Mystery  of  Iniquity,  folded  up  in  a  most  pernicious 
Breave  or  Bull,  sent  from  the  Pope  lately  into  England,  to 
cause  a  Rent  therein,  for  his  Re-entry,"  1627;  though  the 
book  was  wholly  against  the  pope  and  his  dangerous  bull, 
and  was  licensed  by  Dr.  Goad,  he  was  called  before  the 
council  by  the  instigation  of  Laud,  who  spoke  vehemently 
against  the  book,  calling  it  a  libel.  Afterwards,  he  pub- 
lished another  work  against  popery,  entitled,  "The  Pour- 
ing out  of  the  Seven  Vials,"  1628 ;  for  which  he  was  prose- 
cuted in  the  high  commission  by  this  prelate,  and  the  book 
suppressed.  And  when  he  published  his  book,  entitled, 
"Babel  no  Bethel,"  wholly  against  the  church  of  Rome, 
this  prelate  employed  his  pursuivant  to  apprehend  him; 
committed  him  to  the  Fleet,  refusing  bail  when  offered, 
contrary  to  the  petition  of  right;  suspended  him  from  his 
benefice;  and  suppressed  the  book.  About  the  same  time, 
his  "Trial  of  Private  Devotions,"  1628,  against  Dr.  Cosins; 
and  his  "Plea  to  an  Appeal,  in  refutation  of  divers  Arndn- 


214  BLASPHEMY. 


ian  and  Popish  Errors  broached  by  Mountague  in  his  Ap- 
pello  Ccesarerriy'  were  both  called  in  and  suppressed. 

How  long  Mr.  Burton  remained  under  the  above  suspen- 
sion, and  a  prisoner  in  the  Fleet,  we  have  not  been  able  to 
learn.  He  was  afterwards  released.  This,  however,  was 
to  him  only  the  beginning  of  sorrows.  November  5,  1636, 
he  preached  two  sermons  at  his  own  church  in  Friday- 
street,  from  prov.  xxiv.  21,  22,  "My  son,  fear  thou  the  Lord 
and  the  king,  and  meddle  not  with  them  that  are  given  to 
change,'^  &c.  in  which  he  laid  open  the  late  innovations 
in  doctrine,  worship,  and  ceremonies,  and  warned  his  hear- 
ers against  them.  Dr.  Laud,  now  archbishop  of  Canter- 
bury, hearing  of  this,  caused  articles  to  be  exhibited  against 
him  in  the  high  commission,  and  summoned  him  to  answer 
them,  out  of  term,  before  Dr.  Duck.  On  his  appearance, 
he  was  charged  with  having  "spoken  against  turning  com- 
munion tables  into  altars,  against  bowing  to  them,  against 
setting  up  crucifixes,  against  saying  the  second  service  at 
the  altar,  and  against  putting  down  afternoon  sermons  on 
the  Lord's  day.''  He  was,  moreover,  charged  with  having 
said,  "that  ministers  might  not  safely  preach  upon  the 
doctrines  of  grace  without  being  troubled  for  it :  and  that 
the  ministers  in  Norfolk  and  Suffolk  were  suspended  for 
non-conformity  to  the  rites  and  ceremonies,  imposed  upon 
them  contrary  to  the  laws  of  the  land."  These  charges, 
amounting,  it  is  said,  to  sedition,  he  was  required  to  an- 
swer upon  his  oath,  and  so  to  become  his  own  accuser :  but 
he  refused  the  oath;  and,  instead  of  answering,  appealed 
to  the  king.  Notwithstanding  his  appeal,  within  fifteen 
days  he  was  summoned,  by  the  direction  of  the  archbishop, 
to  appear  before  a  special  high  commission  at  Doctors^ 
Commons;  when,  in  his  absence,  he  was  suspended  from 
his  office  and  benefice,  and  attachments  were  given  out  to 
apprehend  him. 

Under  these  oppressive  proceedings,  Mr.  Burton  kept 
himself  close  shut  up  in  his  own  house;  and,  to  give  an  im- 
partial public  a  fair  opportunity  of  deciding  upon  his  case, 
he  published  his  sermons,  entitled,  "For  God  and  the  King; 
the  Summe  of  two  Sermons  preached  on  the  fifth  of  Novem- 
ber last  in  St.  Matthewes,  Friday-street,  1636 ;"  with  "An 


PROSECUTIONS    FOR   CRIMES   AGAINST   RELIGION.        215 

Apologie  for  an  Appeale,"  addressed  to  the  king,  the  lords 
of  the  council  and  the  learned  judges.^^  The  pursuivants 
of  the  high  commission  not  daring  to  break  open  Mr.  Bur- 
ton's doors,  the  archbishop  and  the  bishop  of  London,  with 
several  others,  drew  up  a  warrant  to  one  Dendy,  a  serjeant 
at  arms,  to  apprehend  him.  By  virtue  of  this  warrant, 
Dendy,  accompanied  by  the  sheriff  of  London,  and  various 
other  armed  officers,  went  the  same  evening  to  Mr.  Bur- 
ton's house  in  Friday-street  and  between  ten  and  eleven 
o'clock  at  night,  violently  broke  open  his  doors,  took  him 
into  custody,  and  seized  his  books  and  papers,  as  many  as 
they  pleased.  The  next  day,  instead  of  being  brought  be- 
fore the  lords,  as  the  warrant  expressed,  he  was,  by  an- 
other warrant  and  without  any  cause  assigned,  committed 
close  prisoner  to  the  Fleet. 

During  Mr.  Burton's  close  confinement,  two  anonymous 
publications  came  forth,  the  one  entitled,  "A  Divine  Trag- 
edy, containing  a  Catalogue  of  God's  late  Judgments  upon 
Sabbath-breakers;"  the  other,  "News  from  Ipswich,"  dis- 
covering the  innovations  and  severities  of  the  prelates, 
especially  Bishop  Wren  of  Norwich.  These  were  supposed 
to  have  been  written  by  Mr.  William  Prynne,  the  lawyer. 
Dr.  John  Bastwick,  a  physician,  having  published  a  book, 
entitled,  Apologeticus  ad  prwsules  Anglicanos,  and  a  pam- 
phlet, called,  "The  New  Litany;"  these  three,  Mr.  Burton, 
Mr.  Prynne,  and  Dr.  Bastwick,  now  confined  in  prison, 
were  prosecuted  in  the  star-chamber,  for  "writing  and  pub- 
lishing seditious,  schismatical,  and  libellous  books  against 
the  hierarchy,  and  to  the  scandal  of  the  government."  This 
was  the  substance  of  the  indictment.  Thei/  had  warmly  re- 
flected upon  the  bishops^  taxed  them  with  inclinations  to 
popery,  and  exclaimed  against  the  severity  and  injustice 
of  the  proceedings  of  the  high  commission.  The  persons 
then  in  power  were  of  too  impatient  and  revengeful  a  tem- 
per to  let  such  reflections  and  invectives  go  unpunished. 

When  the  three  defendants  had  prepared  their  answers 
to  the  indictment,  they  could  not  obtain  counsel  to  sign 
them,  through  fear  of  the  prelates;  upon  which  they  peti- 

"Mrs.  Burton  his  wife,  venturinj?  to  present  copies  of  these  sermons 
to  several  of  the  lords  in  parliament,  was  committed  to  prison. 


216  BLASPHEMY. 


tioned  the  court  to  receive  them  from  themselves,  which 
was  rejected.  However,  Mr.  Prynne  and  Dr.  Bastwick, 
having  no  other  remedy,  left  their  answers  at  the  office, 
signed  by  their  own  hands,  but  were,  nevertheless,  pro- 
ceeded against  pro  confesso.  Mr.  Burton  prevailed  upon 
Mr.  Holt,  a  learned  and  an  aged  bencher  of  Gray's-inn,  to 
sign  his  answer ;  but  the  court,  instead  of  receiving  it,  even 
when  signed,  ordered  the  two  chief  justices  to  expunge 
what  they  deemed  unfit  to  be  brought  into  the  court.  Ac- 
cordingly, they  struck  out  the  whole  answer,  consisting  of 
forty  sheets  of  paper,  except  a  few  lines  at  the  beginning, 
and  a  few  more  at  the  end :  and  because  Mr.  Burton  would 
not  acknowledge  it  thus  purged,  he  was,  in  like  manner, 
proceeded  against  pro  confesso. 

The  three  prisoners  were  brought  to  the  bar  June  14, 
1637,  when  they  offered  to  defend  their  several  answers  at 
the  peril  of  their  lives ;  but  the  court,  finding  them  not  filed 
on  record,  would  not  receive  them.  The  prisoners  at  the 
bar  cried  aloud  for  justice^  and  that  their  answers  might  be 
read;  but,  however  reasonable  their  request,  it  was  per- 
emptorily denied. 

Upon  the  petition  of  Sir  Thomas  Jermin,  governor  of 
Jersey,  being  presented  to  the  king,  in  behalf  of  Mr. 
Prynne,  he  was  allowed  to  attend  divine  service,  and  re- 
ceive the  sacrament  in  the  castle,  and  to  walk  with  his 
keeper  in  the  gardens.  But  as  soon  as  the  archbishop 
heard  of  the  royal  indulgence,  he  fell  into  a  violent  rage, 
and  sent  a  messenger  for  one  Mr.  Hungerford,  who  had 
been  employed  in  procuring  it,  and  convened  him  before 
the  council. 

In  the  above  year,  the  prisoners  were  called  home  by 
order  of  the  parliament.  For,  November  7th,  Mrs.  Burton 
and  Mrs.  Bastwick  having  presented  petitions  to  the  house 
of  commons,  in  behalf  of  their  husbands,  complaining  of 
their  heavy  sentence  in  the  star-chamber,  the  house  im- 
mediately ordered,  "That  their  said  husbands  shall  be 
forthwith  sent  for,  in  safe  custody,  by  a  warrant  of  the 
house,  directed  to  the  governors  of  the  islands  where  they 
are  prisoners,  and  to  the  captains  of  the  castles  there ;  that 
the  cause  of  their  being  detained  may  be  here  certified." 


PROSECUTIONS    FOR   CRIMES   AGAINST   RELIGION.         217 

This  warrant  is  dated  November  7,  1640.  A  petition  was 
also  presented  in  behalf  of  Mr.  Prynne,  wTtien  the  house 
gave  a  similar  order  for  his  return. 

Mr.  Burton  and  Mr.  Prynne  coming  in  the  same  vessel, 
arrived  at  Dartsmouth  on  the  22d  of  November,  where  they 
were  received  and  entertained  with  extraordinary  demon- 
strations of  affection  and  joy.  As  they  approached  the 
metropolis,  the  road  betwixt  Brentford  and  London  was 
so  full  of  coaches,  horsemen,  and  persons  on  foot,  come  to 
meet  them,  and  congratulate  them  on  their  safe  arrival, 
that  it  was  with  difficulty  they  could  ride  one  mile  an  hour. 
As  they  entered  London,  there  was  so  immense  a  con- 
course of  people,  that  they  were  nearly  three  hours  in 
passing  from  Charing-cross  to  their  lodgings  in  the  city. 
The  numerous  crowds  who  escorted  them  into  the  city,  in 
token  of  their  great  joy,  carried  lighted  torches  before 
them,  strewed  the  road  with  herbs  and  flowers,  put  rose- 
mary and  bays  in  their  hats,  and,  as  they  went  along,  with 
loud  acclamations  for  their  deliverance,  shouted,  Welcome 
home,  welcome  home!  God  bless  you,  God  bless  you:  God 
be  thanked  for  your  return. 

On  November  30th,  being  two  days  after  his  arrival  in 
London,  Mr.  Burton  appeared  before  the  house  of  com- 
mons, and,  December  5th,  presented  his  petition  to  the 
house,  entitled,  "The  humble  Petition  of  Henry  Burton, 
late  Exile,  and  close  Prisoner  in  Castle-cornet,  in  the  Isle 
of  Guernsey.''  In  this  petition  he  gives  a  sketch  of  his 
numerous  and  painful  sufferings,  and  concludes  by  recom- 
mending his  case  to  their  impartial  consideration.  On  the 
presentatioli  of  the  petition,  with  many  others  of  a  similar 
kind,  the  house  appointed  a  committee  for  their  examina- 
tion; and  on  the  12th  of  March  following,  Mr.  Rigby  de- 
livered their  report  to  the  house,  when  the  house  passed 
the  following  resolutions : 

1.  "That  the  four  commissioners.  Dr.  Duck,  Dr.  Worral, 
Dr.  Sams,  and  Dr.  Wood,  proceeded  unjustly  and  illegally 
in  suspending  Mr.  Burton  from  his  office  and  benefice,  for 
not  appearing  upon  the  summons  of  the  first  process. 

2.  "That  the  breaking  up  Mr.  Burton's  house,  and 
arresting  his  i)erson  without  any  cause  shewed,  and  before 


218  BLASPHEMY. 


any  suit  depended  against  him  in  the  star-chamber,  and 
his  close  imprisonment  thereupon,  are  against  the  law  and 
the  liberty  of  the  subject. 

3.  "That  John  Wragg  hath  offended  in  searching  and 
seizing  the  books  and  papers  of  Mr.  Burton,  by  colour  of 
a  general  warrant  dormant  from  the  high  commissioners; 
and  that  the  said  warrant  is  against  law  and  the  liberty 
of  the  subject;  and  that  sergeant  Dendy  and  alderman 
Abel  have  offended  in  breaking  open  the  house  of  Mr.  Bur- 
ton, and  ought  respectively  to  make  him  reparation  for  the 
same. 

4.  "That  Mr.  Burton  ought  to  have  reparation  and  rec- 
ompence  for  the  damages  sustained  by  the  aforesaid  pro- 
ceedings of  Dr.  Duck  and  others,  who  suspended  him  from 
his  office  and  benefice. 

5.  "That  the  warrant  from  the  council-board,  dated  at 
Whitehall,  February  2,  1637,  for  committing  Mr.  Burton 
close  prisoner,  and  the  commitment  thereupon,  is  illegal, 
and  contrary  to  the  liberty  of  the  subject. 

6.  "That  the  Archbishop  of  Canterbury,  the  Bishop  of 
London,  the  Earl  of  Arundel  and  Surrey,  the  Earl  of  Pem- 
broke and  Montgomery,  Sir  H.  Vane,  Sir  J.  Coke,  and  Sir 
Francis  Windebank,  do  make  reparations  to  Mr.  Burton, 
for  his  damages  sustained  by  this  imprisonment." 

The  24th  of  the  same  month,  Mr.  Burton's  case  being 
again  brought  before  the  house,  it  was  further  resolved : 

1.  "That  the  sentence  in  the  star-chamber  against  Mr. 
Burton  is  illegal,  and  without  any  just  ground,  and  ought 
to  be  reversed,  and  he  ought  to  be  freed  from  the  fine  of 
£5000,  and  the  imprisonment  imposed  upon  him  by  the  said 
sentence,  and  to  be  restored  to  his  degrees  in  the  university, 
orders  in  the  ministry,  and  to  his  ecclesiastical  benefice  in 
Friday-street,  London. 

2.  "That  the  order  of  the  council-board  for  transferring 
Mr.  Burton  from  the  castle  of  Lancaster  to  the  isle  of 
Guernsey,  and  his  imprisonment  there,  are  against  law  and 
the  liberty  of  the  subject. 

3.  "That  the  said  Mr.  Burton  ought  to  have  reparation 
and  recompence  for  the  damages  sustained  by  the  said  im- 


PROSECUTIONS    FOR    CRIMES    AGAINST    RELIGION.         219 

prisonment,  loss  of  his  ears,  and  other  evils  sustained  by 
the  said  unjust  and  illegal  proceedings." 

On  the  20th  of  April,  the  house  of  commons  voted  Mr. 
Burton  to  receive  six  thousand  pounds  for  his  damages 
sustained;  but  the  confiisions  of  the  times  prevented  the 
payment  of  the  money.  And  by  an  order  of  the  house, 
dated  June  8,  1641,  he  was  restored  to  his  former  ministry 
and  benefice  in  Friday-street.  Mr.  Prynne  and  Dr.  Bast- 
wick  also  presented  their  petitions  to  the  house,  when  their 
cases  were  taken  into  consideration,  and  the  house  passed 
similar  resolutions  in  their  favour. 

Fortunately  Bishop  Laud  has  given  us  a  very  detailed 
statement  of  the  defendants  treasonable  utterance.  I 
quote  this  in  full  but  omit  the  Bishops  answering  argu- 
ment. Upon  critical  view  it  will  be  seen  that  the  whole 
matter  simmers  down  to  a  dispute  as  to  what  is  true  chris- 
tian doctrine  and  duty. 

In  this  case  it  was  held  that  in  Ecclesiastical  Court's 
process  may  issue  in  the  names  of  the  bishops,  and  that 
citations  need  not  be  in  the  name  of  the  King  or  under  his 
seal  of  arms  and  that  "Patent  under  the  Great  Seal  is  not 
necessary  in  any  of  these  cases,"  of  "correction  of  Ecclesi- 
astical offences." 

Burton  and  the  others,  denied  the  apostolic  succession 
and  divine  right  of  the  Bishops,  claiming  they  were  resuri>- 
ing  the  authority  that  rightly  belonged  to  the  King,  and 
were  introducing  innovations  tending  toward  Romanism. 

These  words  following  are  the  accusations  against  the 
defendants  in  the  language  of  Bishop  Laud  of  the  Star 
Chamber  Court. 

"Mr.  Burton  in  his  Answer,  set  forth  the  substance  of  his 
Sermon  which  he  preached  the  5th  of  November  in  his 
parish  church  in  Friday-street,  touching  the  innovations 
brought  into  the  church. 

"Dr.  Bastwick  in  his  Answer  termed  the  Prelates  In- 
vaders of  the  king's  Prerogative,  Contemners  of  the  Scrip- 
tures, advancers  of  Popery,  superstition,  idolatry,  profane- 
ness,  oppression  of  the  king's  subjects,  in  the  impious  per- 
formance whereof  they  shewed  neither  wit  nor  honesty; 
Enemies  of  God  and  the  king  and  servants  of  the  Devil. 


220  BLASPHEMY. 


"Mr.  Prynn's  Answer  was  much,  against  the  Hierarchy, 
but  in  more  moderate  and  cautious  expressions. 

"The  Information,  which  was  read  being  very  large,  and 
having  these  five  Books  thereto  annexed,  Dr.  Bastwick'e 
Latin  'Apology,'  his  Litany,  Mr.  Burton's  book  entitled, 
'An  Apology  for  an  Appeal  to  the  king's  most  excellent 
majesty,  with  two  Sermons  for  God  and  the  King,'  preached 
on  the  5th  of  November  last :  The  News  from  Ipswich,  and 
the  Divine  Tragedy,  recording  God's  fearful  Judgments 
against  Sabbath-Breakers. — The  king's  counsel  being  five, 
took  each  of  them  a  several  Book." 

After  a  brief  statement  of  the  argument  of  attorneys 
the  report  givesi  us,  in  the  language  of  archbishop  Loud 
speaking  for  the  court,  a  concise  summary  of  the  offences, 
of  the  defendant.  Loud's  statement  of  the  position  for 
which  the  defendants  were  prosecuted  will  be  given  in 
full.  The  court's  self  defence  against  the  seditious  or 
blasphemous  utterances  will  usually  be  omitted.  Only 
enough  is  presented  to  suggest  the  fundamental  theory  of 
the  court,  which  will  later  be  contrasted  with  the  con- 
trary concepts  expressed  and  implied  in  our  constitutions. 

"And  I  said  well,  'Quis  tulerit  Gracchos?'  for  it  is  most 
apparent  to  any  man  that  will  not  wink,  that  the  intention 
of  these  men,  and  their  abettors,  was,  and  is,  to  raise  a 
Sedition;  being  as  great  incendiaries  in  the  state  (where 
they  get  power)  as  they  have  ever  been  in  the  Church; 
Novatian  himself  hardly  greater. 

"Our  main  crime  is  (would  they  all  speak  out  as  some 
of  them  do)  that  we  are  Bishops;  (Burton  Apol.  p.  110.) 
were  we  not  so,  some  of  us  might  be  as  passable  as  other 
men.  And  a  great  trouble  it  is  to  them,  that  we  maintain 
that  our  Calling  of  Bishops  is  Jure  Divino,  by  divine  right ; 
of  this  I  have  said  enough,  and  in  this  place,  in  Leighton's 
Case;  nor  will  I  repeat.  .  Only  this  I  will  say,  and  abide 
by  it,  that  the  Calling  of  Bishops  is  Jure  Bivino,  by  divine 
right,  though  not  all  adjuncts  to  their  calling.  And  this 
I  say  in  as  direct  opposition  to  the  Church  of  Eome,  as  to 
the  puritan  humour.  And  I  say  further:  That  from  the 
apostles  times,  in  all  ages,  in  all  places,  the  Church  of 


PROSECUTIONS    FOR   CRIMES    AGAINST   RELIGION.         221 

Christ  was  governed  by  Bisliops;  and  Lay  Elders  never 
lieard  of  till  Calvin's  new-fangled  device  at  Geneva. 

"Now  this  is  made  by  these  men,  as  if  it  were  contra 
regent,  against  the  king,  in  right  or  in  power.  But  that's 
a  mere  ignorant  shift ;  for  our  being  bishops  Jure  Divino, 
by  divine  right,  takes  nothing  from  the  king's  right  or 
power  over  us.  For  though  our  office  be  from  God  and 
Christ  immediately,  yet  may  we  not  exercise  that  power, 
either  of  order  or  jurisdiction,  but  as  God  hath  appointed 
us,  that  is,  not  in  his  majesty's,  or  any  Christian  king's 
kingdoms,  but  by  and  under  the  power  of  the  king  given 
us  so  to  do. — And  were  this  a  good  argument  against  us, 
as  Bishops,  it  most  needs  be  good  against  Priests  and 
Ministers  too;  for  themselves  grant  that  their  calling  is 
Jure  Divino,  by  divine  right ;  and  yet  I  hope  they  will  not 
say,  that  to  be  priests  and  ministers  is  against  the  king  or 
any  his  royal  prerogatives. 

"Next  suppose  our  callings  as  Bishops,  could  not  be 
made  good  Jure  Divino,  by  divine  right ;  yet  Jure  Ecclesi- 
asticOj  by  ecclesiastical  right,  it  cannot  be  denied.  And 
here  in  England  the  Bishops  are  confirmed,  both  in  their 
power  and  means,  by  act  of  parliament.  So  that  here  we 
stand  in  as  good  case,  as  the  present  laws  of  the  realm 
can  make  us.  And  so  we  must  stand,  till  the  laws  shall 
be  repealed  by  the  same  power  that  made  them. 

"Now  then,  suppose  we  had  no  other  string  to  hold  by 
(I  say  suppose  this,  but  I  grant  it  not)  yet  no  man  can 
libel  against  our  Calling  (as  these  men  do)  be  it  in  pulpit, 
print,  or  otherwise,  but  he  libels  against  the  king  and  the 
state,  by  whose  laws  we  are  established.  Therefore,  all 
these  Libels,  so  far  forth  as  they  are  against  our  calling, 
are  against  the  king  and  the  law,  and  can  have  no  other 
purpose  than  to  stir  up  Sedition  among  the  people.  If 
these  men  had  any  other  intention,  or  if  they  had  any 
Christian  or  charitable  desire  to  reform  any  thing  amiss; 
why  did  they  not  modestly  petition  his  majesty  about  it, 
that  in  his  princely  wisdom  he  might  set  all  things  right, 
in  a  just  and  orderly  manner?  *  ♦  ♦ 

"For  the  main  scope  of  these  Libels  is,  to  kindle  a  jeal- 
ousy in  men's  minds,  that  there  are  some  great  plots  in 


222  BLASPHEMY. 


hand,  dangerous  plots  (so  says  Mr.  Burton  expressly  p. 
5.)  to  change  the  Orthodox  Keligion  established  in  Eng- 
land; and  to  bring  in  I  know  not  what,  Eomish  Supersti- 
tion in  the  room  of  it.  As  if  the  external  decent  Worship 
of  God  could  not  be  upheld  in  this  kingdom,  without  bring- 
ing in  of  Popery. 

"Now  by  this  art  of  theirs,  give  me  leave  to  tell  you  that 
the  King  is  most  desperately  abused  and  wounded  in  the 
minds  of  his  people;  and  the  Prelates  shamefully. 

"The  King  most  desperately:  for  there  is  not  a  more 
cunning  trick  in  the  world  to  withdraw  the  people's  hearts 
from  their  Sovereign,  than  to  persuade  them  that  he  is 
changing  true  Religion  and  about  to  bring  in  gross  Super- 
stition upon  them. 

"And  the  Prelates  shamefully :  for  they  are  charged  to 
seduce,  and  lay  the  plot,  and  be  the  instruments.  *  *  * 

"They  say,  there  are  great  Innovations  brought  in  by 
the  Prelates ;  and  such  as  tend  to  the  advancing  of  Popery. 
Now  that  the  vanity  and  falsehood  of  this  may  appear,  I 
shall  humbly  desire  your  lordships  to  give  me  leave  to 
recite  briefly  the  Innovations  charged  upon  us,  be  they  of 
less  or  greater  moment;  and  as  briefly  to  answer  them. 
And  then  you  shall  clearly  see,  whether  any  cause  hath 
been  given  of  these  unsavory  Libels;  and  withal,  whether 
there  be  any  shew  of  cause  to  fear  a  Change  of  Religion. 
And  I  will  take  these  great  pretended  Innovations  in  order 
as  I  meet  with  them. 

"First,  I  begin  with  the  'News  from  Ipswich.' 

"Where  the  first  Innovation  is,  (p.  2),  'That  the  last 
year's  Fast  was  enjoyned  to  be  without  Sermons  in  Lon- 
don, the  suburbs,  and  other  infected  places,  contrary  to 
the  orders  for  other  Fasts  in  former  times:  whereas  Ser- 
mons are  the  only  means  to  humble  men,'  &c.  *  *  * 

"2.  The  second  Innovation  is,  (p.  3.)  'That  Wednesday 
was  appointed  for  the  Fast-day,  and  that  this  was  done 
with  this  intention,  by  the  example  of  tliis  Fast  without 
preaching,  to  suppress  all  the  Wednesday-Lectures  in  Lon- 
don.' *  *  * 

"3.  The  third  Innovation  is,  (p.  3.)  'That  the  Prayer 
for  seasonable  weather  was  purged  out  of  this  last  Fast- 


PROSECUTIONS    FOR   CRIMES    AGAINST   RELIGION.         223 

book,  which  was  (say  they)  one  cause  of  Shipwrecks  and 
tempestuous  weather/  *  *  * 

"4.  The  fourth  Innovation  is,  (p.  3.)  *That  there  is  one 
very  useful  Collect  left  out,  and  clause  omitted  in  an- 
other.' *  *  ♦ 

"5.  The  fifth  Innovation  is,  (p.  3.)  *That  in  the  sixth 
Order  for  the  Fast,  there  is  a  Passage  left  out  co-icerning 
the  Abuse  of  Fasting  in  relation  to  merit.'  *  *  ♦ 

"6.  The  sixth  Innovation  is,  (p.  3.)  'That  the  lady  Eliza- 
beth and  her  princely  children  are  dashed'  (that  is  their 
phrase)  'out  of  the  new  collect,  whereas  they  were  in  the 
Collect  of  the  former  Book.'  *  *  * 

"7.  The  seventh  Innovation  is,  (p.  3.)  'That  these 
Words'  (who  art  the  father  of  thine  elect  and  of  their 
eeed)  'are  changed  in  the  preface  of  that  collect,  which  is 
for  the  prince  and  the  king's  children.'  And  with  a  most 
spiteful  inference,  that  'this  was  done  by  the  prelates  to 
exclude  the  king's  children  out  of  the  number  of  God's 
Elect.'  And  they  call  it  'an  intolerable  impiety,  and  horrid 
treason.'  ♦  ♦  ♦ 

"8.  The  eighth  Innovation  is,  That  in  the  Epistle  the 
Sunday  before  Easter,  we  have  put  out  'In,'  and  made  it, 
'At  the  Name  of  Jesus'  every  knee  shall  bowe:  which  al- 
teration, he  saith,  is  directly  against  the  act  of  parliament. 
(Burton's  Apology,  p.  2.)   ♦  ♦  ♦ 

"9.  The  ninth  Innovation  is,  'That  two  places  aie 
changed  in  the  Prayer  set  forth  for  the  fifth  of  November ; 
and  ordered  to  be  read  (they  say)  by  act  of  parliament. 
The  first  place  is  changed  thus,  from,  root  out  that  Baby- 
lonish and  antichristian  sect  which  say  of  Jerusalem,  &c.' 
Into  this  form  of  words;  'root  out  that  Babylonish  and 
antichristian  sect,  (of  them)  which  say,  &c.'  The  second 
place  went  thus  in  the. old:  'Cut  off  those  workers  of  in- 
iquity, whose  Religion  is  Rebellion.  But  in  the  book 
printed  1636,  'tis  thus  altered:  Cut  off  those  workers  of 
iniquity,  who  turn  Religion  into  Rebellion,  &c/  ♦  ♦  ♦ 

"10.  The  tenth  Innovation  is,  (p.  3.)  'That  the  Prayer 
for  the  Navy  is  left  out  of  the  late  Book  for  the  Fast.'  ♦  *  * 

"11.  The  11th  Innovation  is,  (p.  105.)  'The  reading  of 


224  BLASPHEMY. 


the  second  Service  at  the  Communion-Table,  or  the  Altar.' 

•  •  • 

"12.  One  thing  sticks  much  in  their  stomachs,  and  they 
call  it  an  Innovation  too.  And  that  is,  ^bowing,  or  doing 
reverence  at  onr  first  coming  into  the  church  or  at  our 
nearer  approaches  to  the  holy  table,  or  the  altar,'  (call  it 
whether  you  will)  in  which  they  will  needs  have  it,  that 

we  worship  the  holy  table,  or  God  knows  what.  (P.  105). 

•  •  « 

"13.  The  thirteenth  Innovation  is,  The  placing  of  the 
holy  Table  altar-wise,  at  the  upper  end  of  the  chancel ;  that 
is,  the  setting  of  it  North  and  South,  and  placing  a  rail 
before  it,  to  keep  it  from  profanation,  which  Mr.  Burton 
(P.  4,  5,  105,)  says,  is  done  to  advance  and  usher  in 
Popery." 

The  gist  of  this  offending  is  that  the  defendants  pro- 
mulgated unorthodox  views  as  to  theology,  ecclesiastical 
organization,  and  religious  duties  toward  God.  In  short 
these  defendants  ascribed  desires  to  God,  which  the  estab- 
lished church  authorities  deemed  false.  But  this  is  blas- 
phemy under  the  canon  law  and  common  law.  However 
this  particular  blasphemy  was  of  such  a  character  as  to 
discredit  the  prelates  of  the  established  church.  Therefore 
it  had  a  speculative  tendency  to  discredit  the  government. 
Manifestly  then  it  could  be  called  either  blasphemy  or 
sedition.  This  illustrates  what  is  meant  by  a  previous 
statement  that  church  and  state  under  the  old  system 
were  but  different  aspects  of  the  same  thing,  and  that 
words  against  an  archbishop  are  therefore  words  against 
the  government.  Also,  blasphemous  utterances  are  like- 
wise essentially  seditious  in  their  tendency. 

Thomas  Wilson— 1637?  20 

What  follow^s  is  all  that  was  found  in  relation  to  this 
prosecution. 

"Thomas  Wilson,  A.M.  was  born  at  Catterly,  in  Cumber- 
land, in  the  year  1601,  and  educated  in  Christ's  college, 
Cambridge;  where  he  was  greatly  admired  for  his  inde- 
fatigable industry,  and  great  progress  in  useful  learning. 

^^  Reese,  Richard.    Compendious  martyrology,  v.  3,  pp.  453-457. 


PROSECUTIONS    FOR   CRIMES   AjGAINST   RELIGION.        225 

Upon  his  leaving  the  university,  he  taught  school  for  some 
time  at  Chart  wood  in  Surrey ;  then  entered  into  the  minis- 
try at  Capel,  in  the  same  county.  Here,  by  his  judicious 
preaching  and  holy  example,  he  directed  the  people  in  the 
way  to  eternal  life.  Though  he  received  little  or  nothing 
for  his  pains,  he  was  not  the  less  faithful  and  laborious  in 
promoting  the  welfare  of  souls,  and  was  greatly  beloved 
by  his  people.  His  great  popularity  and  usefulness  soon 
awakened  the  envy  of  profane  sinners,  and  several  neigh- 
bouring ministers;  but  he  went  on  undismayed,  the  Lord 
blessing  his  labours. 

"Notwithstanding  his  labours  and  usefulness,  he  was 
at  length  silenced  for  refusing  to  read  the  Book  of  Sports. 
In  the  month  of  April,  1634,  he  was  inhibited  by  Arch- 
bishop Laud's  vicar-general  from  part  of  his  public  minis- 
terial exercises.  But,  upon  the  publication  of  the  Book 
of  Sports,  he  refused  to  read  it,  when  the  archbishop  sent 
for  him  to  Lambeth;  and,  April  29,  1635,  no  less  than 
fourteen  charges  were  exhibited  against  him,  to  each  of 
which  he  gave  his  answer.  May  28th  following.  The  sub- 
stance of  these  articles,  together  with  Mr.  Wilson's  an- 
swer, was  as  follows: 

"1.  That  canonical  obedience  is  due  by  your  oath,  taken 
at  your  institution. 

'^Ansicer.  It  is  true,  as  I  understand  the  oath,  it  is  ac- 
cording to  the  canons  of  the  church  of  England. 

"2.  That  a  minister  must  have  a  popular  election,  as 
necessary  to  hold  his  place. 

*^Ans.  I  never  held  such  an  opinion,  nor  ever  spoke  it, 
privately  or  publickly. 

"3.  That  there  is  little  comfort  for  a  minister  instituted 
and  inducted,  without  the  approbation  of  the  people. 

^'Ans.    I  know  and  believe  the  contrary. 

"4.  You  have  held  conventicles  in  your  house,  and  in 
other  houses  in  the  town  of  Otham,  within  these  two  years, 
and  used  exercises  of  religion  by  law  prohibited. 

'^Ans.  I  deny  that  I  have  holden  conventicles,  and  used 
exercises  of  religion  by  law  prohibited. 

"5.  Within  these  four  years  you  have  collected  in  pri- 
vate houses,  or  caused  to  be  collected,  forty  or  fifty  per- 


226  BLASPHEMY. 


sons,  and  to  them  repeated  sermons,  expounded  scripture, 
made  tedious  extemporary  prayers,  full  of  tautologies,  and 
delivered  dangerous  doctrine,  to  the  perverting  and  cor- 
rupting of  his  majesty's  subjects. 

^^Ans.  I  protest  against  such  doctrine  and  any  such 
effect.  I  also  deny  that  I  collected,  or  caused  to  be  col- 
lected, any  such  persons. 

"6.  You  refused  to  read  the  King's  Declaration  for 
Sports  on  Sundays,  and  spoke  disdainfully  to  the  appari- 
tor and  officer  of  the  court. 

^^Ans.  I  said  to  the  apparitor,  ^Remember  the  sabbath- 
day  to  keep  it  holy ;'  and  I  said  no  more.  I  refused  to  read 
the  book,  not  out  of  contempt  of  any  authority,  being  com- 
manded by  no  law.  The  king's  majesty  doth  not  in  the 
book  command  or  appoint  the  minister  to  read  it,  nor  it  to 
be  read,  but  published.  And  seeing  there  is  no  penalty 
threatened,  nor  authority  given  to  any  one  to  question 
those  who  refuse  to  read  it,  my  refusal  to  read  it  was  upon 
sufificient  grounds  of  law  and  conscience;  which,  for  the 
satisfaction  of  this  high  court,  and  to  clear  myself  from 
contempt,  I  shall  briefly  express  myself  thus :  His 
majesty's  express  pleasure  is,  that  the  laws  of  the  realm, 
and  the  canons  of  the  church  be  observed  in  all  places  of 
the  kingdom;  and  therefore  at  Otham  in  Kent:  but  this 
book  as  I  conceive,  is  contrary  to  both. — It  is  contrary  to 
the  statute  laws. — It  is  contrary  to  the  ecclesiastical  laws. 
— It  is  contrary  to  the  scriptures. — It  is  contrary  to  the 
councils. — It  is  contrary  to  divines,  ancient  and  mode- 
ern. — It  is  contrary  to  reason. 

"7.  In  1633,  when  the  commission  was  granted  for  re- 
pairing St.  Paul's  you  said,  to  build  sumptuous  temples  is 
to  justify  antichrist. 

^^Ans.    I  deny  this  altogether. 

"8.  In  1634,  you  bade  the  people,  in  scorn  and  derision, 
to  take  heed  of  dealing  with  high  priest's  servants. 

^^Ans,    I  deny  both  the  time  and  the  words. 

"9.  At  Boxley,  June  29, 1632,  you  said,  No  man  can  have 
a  broken  heart,  who  hath  two  steeples ;  meaning  two  bene- 
iices,  alleging  Acts  xx.  20. 

^^Ans.    I  never  spake  such  words.    But  at  the  funeral  of 


FROSECUTIONS    FOR    CRIMES    AGAINST   RELIGION.         2- 1 

a  grave  and  learned  minister,  I  entreated  the  ministers 
present  to  prepare  to  give  an  account  of  their  lives  and 
livings,  shewing  the  vanity  of  those  who  plead  for  plurali- 
ties, saying,  'That  if  a  man's  heart  were  broken,  it  would 
not  be  with  the  weight  of  three  churches;'  and  herein 
I  followed  no  new  opinion,  but  the  general  opinion  of 
learned  divines,  both  ancient  and  modern. 

"10.  You  have  scandalized  the  governors  and  govern- 
ment of  the  church  of  England,  as  persecutors  of  God's 
faithful  ministers  and  people. 

^^Ans.    This  is  not  true,  in  the  whole  or  in  any  part. 

"11.  In  April,  1633,  you  delivered  a  dangerous  doctrine, 
even  that  if  a  subject  suffer  the  penalty  of  the  law  from  the 
civil  magistrate,  he  is  free  from  sin. 

"Aw«.  I  deny  the  time,  and  words,  and  doctrine.  I 
never  taught,  nor  read,  nor  heard  of  this  doctrine,  till  I 
heard  this  article;  and  I  abhor  it,  and  disclaim  it  as 
dangerous. 

"12.  April  22,  1634,  you  lectured  and  expounded,  after 
inhibition  by  the  vicar-general. 

"Aws.  This  is  not  true.  I  did  not  preach,  excepting  on 
Lord's  days  and  holidays;  neither  did  I  expound.  Yet  I 
had  a  license  to  expound  and  was  not  forbidden  expound- 
ing. I  constantly  instruct  by  question  and  answer,  in  the 
catechism,  such  as  come  to  prayers,  for  which  I  had  my 
institution  and  license,  and  from  which  I  never  received 
any  prohibition ;  nor,  so  far  as  I  understand,  is  it  any  sin 
against  God  or  man. 

"13.  You  are  accounted  an  enemy  to  the  church  of  Eng- 
land, and  draw  othors  into  schism  after  you. 

^^Ans.    I  deny  the  whole  of  this,  and  every  part. 

"14.  You  are  to  promise,  by  your  word  and  honour,  to 
speak  the  truth. 

"Aws.  I  believe  what  I  have  confessed,  and  deny  what 
I  have  denied  in  every  part. 

"Mr.  Wilson's  answers,  in  which,  he  declared  his  refusal 
to  read  the  book,  were  no  sooner  given,  than  the  archbishop 
replied,  /  suspend  you  for  ever  from  your  office  and  bene- 
fice till  you  read  it:  and  he  continued  suspended  for  the 
space  of  four  years.     About  the  same  time  he  was  com- 


1^28  BLASPHEMY. 


mitted  to  Maidstone  jail  for  non-conformity,  but  how  long 
he  remained  in  confinement  does  not  appear.  At  the  ex- 
piration of  the  above  period,  he  was  brought  into  the  high 
commission  court  by  means  of  the  archbishop;  and,  to  his 
great  cost  and  trouble,  was  again  prosecuted  for  the  same 
crime. 

"Mr.  Wilson,  remaining  under  suspension,  and  being 
dissatisfied  with  the  ministry  of  his  successor,  removed  to 
Maidstone,  where  he  gave  private  instructions  among  his 
friends.  His  adversaries,  at  the  same  time  traduced  his 
character,  and  slandered  him  as  a  favourer  of  schism. 
Therefore,  to  wipe  off  the  reproach,  he  addressed  a  letter 
to  the  parishioners  of  Otham,  exhorting  them  ^to  fear  God 
and  honour  the  king,  and  walk  in  love  one  towards  an- 
other.' For  the  information  and  satisfaction  of  all,  this 
letter  was  read  to  the  public  congregation  on  the  Lord's 
day.  The  news  of  this  however,  soon  reached  London, 
when  Mr.  Wilson  and  Dr.  Tuck,  who  had  read  the  letter, 
were  cited  to  appear  before  the  high  commission.  Mr. 
Wilson  was  charged  in  the  court,  with  having  sent  a  scan- 
dalous and  offensive  letter  to  Otham,  to  nourish  schism, 
and  to  confirm  the  people  in  the  dislike  of  government; 
upon  which  he  acknowledged  his  writing  a  letter,  but 
denied  its  evil  tendency,  saying,  *I  know  that  it  was  to 
exhort  the  people  to  fear  God  and  the  king,  and  to  meddle 
not  with  those  that  are  given  to  change ;  to  walk  in  faith 
and  love  and  to  call  upon  God :  but  I  utterly  deny  all  occa- 
sion of  derogating  from  the  church  of  England,  or  con- 
firmation of  any  in  a  dislike  of  the  governments,  and  pro- 
test against  all  aspersions  and  imputations  of  schism  or 
scandal:  neither  did  I  direct  any  one  to  read  it^  nor  in- 
tended or  desired  it  should  be  read  in  the  church.'  Not- 
withstanding all  they  could  alledge  in  their  own  defence, 
they  were  enforced  to  continue  their  attendance  no  less 
than  three  years,  to  their  great  cost  and  trouble. 

"In  the  year  1639,  the  Scots  having  entered  England,  and 
a  parliament  being  called.  Laud  took  off  Mr.  Wilson's 
suspension.  But  his  troubles  and  sufferings  were  not 
ended ;  for,  September  30,  1640,  he  was  cited  to  appear  be- 
fore the  archbishop's  visitors  at  Feversham,  together  with 


PROSECUTIONS    FOR    CRIMES   AGAINST   RELIGION.         229 

other  ministers  in  Kent,  to  answer  for  not  reading  the 
prayer  against  the  Scots.  Upon  their  appearance,  Mr. 
Edward  Bright,  being  called  first,  was  asked  whether  he 
had  read  the  prayer;  and  when  he  said  he  had  not,  the  arch- 
deacon instantly  suspended  him  from  office  and  benefice, 
without  admonition,  or  even  giving  him  the  least  time  to 
consider  of  it.  Mr.  Wilson  who  witnessed  this  rash  pro- 
ceeding, was  next  called.  When  he  was  asked  whether  he 
had  read  the  prayer,  he  answered  in  the  negative ;  ^because, 
(said  he)  in  the  rubrick  of  the  Common  Prayer,  it  is  en- 
joined that  no  prayer  shall  be  publickly  read  excepting 
those  which  are  contained  in  the  Book  of  Common  Prayer, 
and  that  prayer  against  the  Scots  is  not.'  This  unexpected 
answer  so  confounded  the  archdeacon  that  he  did  not  know 
what  to  say.  It  cooled  his  fury,  and  caused  him  to  pro- 
ceed more  deliberately  with  Mr.  Wilson  than  he  had  done 
with  Mr.  Bright.  He  gave  him  fourteen  days  to  consider 
of  it,  and  then  deliver  his  answer  at  Canterbury. 

"About  the  same  time  a  warrant  was  issued  from  the 
lords  of  the  council,  among  whom  were  Archbishop  Laud 
and  the  Bishop  of  London,  to  apprehend  Mr.  Wilson.  With 
this  warrant  a  pursuivant  was  sent  to  bring  him  to  Lon- 
don. It  does  not  appear  for  what  crime  this  prosecution 
was  designed ;  yet  no  doubt  it  was  the  sin  of  non-conform- 
ity. The  pursuivant,  having  received  his  warrant,  hast- 
ened without  delay  to  Otham;  where,  though  he  heard 
Mr.  Wilson  preach,  and  was  afterwards  in  the 
same  room  with  him  in  his  own  house,  he  let  him  slip  out 
of  his  hands.  Mr.  Wilson,  suspecting  him  as  soon  as  he 
entered  the  room,  retired  and  hid  himself,  and  so  escaped 
the  snare.  The  pursuivant  was  enraged  at  his  loss,  and 
said  he  had  been  employed  in  this  service  thirty-six  years, 
and  he  had  never  been  served  so  before.  Mr.  Wilson,  hav- 
ing escaped  the  snare,  withdrew  from  the  storm  till  the 
meeting  of  the  long  parliament,  when  he  went  to  London, 
and  presented  his  case  and  petition  to  the  house  of  com- 
mons. The  house  appointed  a  committee  to  take  his  case 
into  consideration;  and,  November  30,  1640,  Mr.  Rouse, 
who  was  one  of  this  committee,  reported  to  the  house, 
*That  Mr.  Wilson  had  been  suspended  four  years  from  his 


230  BLASPHEMY. 


living,  worth  sixty  pounds  a  year,  only  for  not  reading  the 
Book  of  Kecreations  on  the  Lord's  day ;  that  the  archbishop 
himself  had  suspended  him;  and  that  for  three  years  he 
had  attended  upon  th^  high  commission.'  The  house  there- 
fore resolved,  ^That  Mr.  Wilson  had  just  cause  of  com- 
plaint ;  and  that  there  was  just  cause  for  the  house  to  af- 
ford him  relief.'  Upon  the  presentation  of  his  petition, 
Sir  Edward  Deering,  one  of  the  members  for  Kent,  said, 
'Mr.  Wilson,  your  petitioner,  is  as  orthodox  in  doctrine, 
as  laborious  in  preaching,  and  as  unblemished  in  his  life, 
as  any  minister  we  have.  He  is  now  separated  from  his 
flock,  to  both  their  griefs:  for  it  is  not  with  him  as  with 
many  others,  who  are  glad  to  set  a  pursuivant  on  work, 
that  they  may  have  an  excuse  to  be  out  of  the  pulpit;  it 
is  his  delight  to  preach.'  Sir  Edward  further  observes  of 
Mr.  Wilson,  ^He  is  now  a  sufferer,  as  all  good  men  are, 
under  the  general  obloquy  of  a  puritan.  The  pursuivant 
w^atches  his  door,  and  divides  him  and  his  cure  asunder,  to 
both  their  griefs.  About  a  week  since,  (he  adds)  I  went  to 
Lambeth,  to  move  that  great  bishop  (too  great  indeed)  to 
take  this  danger  from  off  this  minister,  and  to  recall  the 
pursuivant.  And  I  did  undertake  for  Mr.  Wilson,  that 
he  should  answer  his  accusers  in  any  of  the  king's  courts 
at  Westminster.  The  bishop  made  me  answer,  ^I  am  sure 
that  he  will  not  be  absent  from  his  cure  a  twelve-month 
together.' 

"Upon  the  above  resolution  of  the  house,  he  was  released 
from  all  his  troubles,  when  he  returned  to  his  charge  and 
wonted  labours  at  Otham.  In  the  year  1643,  he  was  nomi- 
nated one  of  the  assembly  of  divines;  and,  though  at  so 
great  a  distance,  he  constantly  attended.  In  the  assembly 
he  was  much  esteemed.  ♦  ♦  ♦  Having  continued  some  time 
at  Otham,  he  removed  to  Maidstone,  where  he  remained 
to  the  day  of  his  death." 

John  Pocklington — 1640.21 

John  Pocklington  (d.  1642),  graduated  at  Cambridge 
(B.  A.  1598— B.  D.  1610— D.  D.  1621).   He  was  credited 

"Howell's.     State  trials,  vol.  5,  p.  747. 
Sunday  no  sabbath.    A  sermon  preached  before  the  Lord  bishop  of 


TROSECUTIONS    FOR    CRIMES    AGAINST   RELIGION.         231 

at  Cambridge  with  being  a  high  churchman.  Much  later 
he  was  charged  with  being  "a  chief  author  and  ring* 
leader  in  all  those  [ritualistic]  innovations  which  have  of 
late  flowed  into  the  Church  of  England.'^ 

Feb.  12,  1640  he  was  sentenced  by  the  House  of  Lords 
never  to  come  within  the  verge  of  the  court,  to  be  deprived 
of  all  his  preferments,  and  to  have  his  two  books,  "Altare 
Christianum"  and  "Sunday  No  Sabbath"  publicly  burnt 
in  the  city  of  London  and  at  Cambridge  and  Oxford,  by 
the  hand  of  the  common  executioner.  When  Pocklington 
was  deprived  of  his  preferments,  William  Bray,  D.D.,  who 
licensed  his  works  was  enjoined  to  preach  a  recantation 
sermon  in  St.  Margaret's  Church  Westminster. 

The  specification  of  delinquencies  is  fortunately  pre- 
served. If  the  actual  enactment  of  erroneous  ritual  is 
thus  penalized,  of  course,  the  advocacy  of  such  practices 
must  come  within  technical  blasphemy,  as  can  readily  be 
seen  by  comparison  with  the  definition  of  blasphemy  and 
the  adjudicated  cases. 

Here  then  are  the. charges  against  Pocklington: 

1.  "He  hath  within  these  few  years,  in  his  church  at 
Yelton  turned  the  communion  table  alterwise. 

2.  "He  bows  to  or  before  this  altar,  very  low;  as  often 
as  either  he  passeth  by  it,  or  makes  his  approach  therunto. 

3.  "He  shews  more  outward  reverence  to  the  altar,  than 
to  the  name  of  God :  for  one  time  in  the  church  protesting 
before  God,  and  his  holy  altar,  when  he  made  mention  of 
the  altar,  he  turned  himself  towards  it,  and  made  low 
obeysance  before  it,  but  at  the  name  of  God  he  shewed  no 
such  respect. 

4.  "He  hath  placed  a  cross  in  a  cloth  behind  the  altar, 
called  the  altar  cloth. 

5.  "He  useth  much  to  magnify  the  cross;  and  once  in 
his  sermon  speaking  of  Moses  his  prayer  against  Amalek, 

Lincolne  at  his  lordship's  visitation  at  Ampthill  *  *  *  Aug.  17,  1635. 
London  1636  [two  editions]. 

Altare   christianum;   or  the  dead  vicar's  plea.     Wherein  the  vicar 
of  Go  [antham]  being  dead,  yet  speaketh,  and  pleadeth  out  of  an- 
tiquity against  him  that  hath  broken  downe  his  altar',  London  1637. 
Vickers,  Robert  H.     Martyrdoms  of  literature,  p.  377. 
Dictionary  of  national  biography,  vol.  45,  p.  450. 


232  BLASPHEMY. 

he  said,  that  Moses  spread  forth  his  arms  in  the  form  of  a 
cross,  and  that  that  posture  of  his  was  more  available  with 
God  than  his  prayer. 

6.  "He  hath  caused  a  bell  to  be  hung  up  in  his  chancel, 
called  a  sacring-bell,  which  the  clerk  always  rings  at  the 
going  up  to  second  service,  which  he  performs  with  variety 
of  postures,  sometimes  turning  his  face  towards  the  South, 
sometimes  towards  the  East,  and  sometimes  towards  the 
West. 

7.  "He  hath  caused  two  cloaths  to  be  made,  which  he 
calls  corporals,  and  these  he  useth  to  lay  over  the  bread 
in  the  Sacrament;  and  each  of  these  hath  ^\e  crosses  on 
it,  one  at  each  comer,  and  one  in  the  middle. 

8.  "That  he  refused  to  give  the  Sacrament  on  Easter- 
day,  anno  1638,  to  twelve  or  fourteen  of  his  parishioners, 
though  they  had  acquainted  him  before,  that  they  intended 
to  receive  on  that  day,  according  to  their  usual  custom; 
and  though  at  the  time  of  the  administration  of  the  Sacra- 
ment, even  from  the  beginning  thereof  to  the  end,  they 
kneeled  at  the  rails,  for  otherwise  he  would  not  administer 
it  to  them  at  any  time,  yet  he  still  passed  them  by,  and 
sent  them  away  vdthout  it,  to  their  great  reproach  and 
discomfort:  having  no  just  cause  so  to  do. 

9.  "He  hath  also  composed  and  published  two  books  or 
pamphlets,  the  one  intituled  "Sunday  no  Sabbath,"  the 
other  "Altare  Christianum,"  wherein  he  justifies  and  de- 
fends all  those  innovations  in  religion  that  have  been  un- 
happily introduced  into  this  church,  which  also  he  practices 
by  himself;  and  besides,  in  those  books  he  asserts  and 
maintains  divers  wicked.  Popish  and  Antichristian  points, 
to  the  great  danger  and  damage  of  this  church  and  state; 
justifies  sundry  popish  canonized  saints  for  true  saints 
and  Martyrs  of  God,  and  censures  for  our  own  English 
Martyrs  (mentioned  in  Master  Fox's  Calendar,  before  his 
book  of  Acts  and  Monuments,  set  forth  by  the  public  au- 
thority, and  approved  by  the  whole  convocation  anno  1579), 
for  traitors,  murderers,  rebels  and  heretics. 

"May  it  therefore  please  this  honourable  house,  to  take 
the  premises  into  your  just  and  pious  consideration,  and  to 
convent  the  said  Doctor  Pocklington  before  you,  to  an- 


PROSECUTIONS   FOR   CRIMES   AGAINST   RELIGION.        233 

Bwer  the  same,  that  so  he  may  receive  such  condign  and 
exemplary  punishment,  as  may  deter  all  others  from  the 
like  dangerous  attempts  and  innovations :  and  your  Peti- 
tioner 2-  shall  ever  pray,  &c." 

The  first  eight  of  these  Articles  being  evidently  proved 
against  him,  and  also  acknowledged  by  himself;  the  ninth 
was  thus  managed  against  him,  as  follows: 

"A  Discovery  and  Declaration  of  divers  wicked,  Popish, 
and  Antichristian  innovations  and  doctrines,  pub- 
lished and  taught,  and  peremptorily  affirmed  and  de- 
fended by  John  Pocklington,  D.  D.,  to  the  great 
dishonour  of  God,  the  great  reproach  and  scandal  of 
true  religion,  and  to  the  great  hurt  and  danger  of 
the  Church  of  England :  collected  wovd  for  word  out 
of  his  own  books,  viz.  "Altare  Christianum,"  and 
"Sunday  no  Rabbath;"  and  humbly  presented  to  tlie 
knowledge,  consideration,  and  just  sentence  of  the 
right  honourable  the  Lords  of  the  higher  house  of 
parliament. 

1.    Touching  Churches. 

"1.  He  affirms  and  maintains  the  dedication  and  con- 
secration of  them  by  prayers:  and  that,  as  he  saith,  from 
the  doctrines  and  decrees  of  Popes  of  the  first  and  best 
times,  and  confirmed  by  the  doctrine  and  practice  of  the 
holy  Catholic  church.  And  he  censures  the  Centurists 
for  bold  and  impious,  because  they  condemn  and  brand 
such  kind  of  Popish  consecration  of  wood  and  stones,  for 
the  mystery  of  iniquity,  Alt.  Chr.  c.  10,  p.  52. 

"Now  such  consecration  is  contrary  to  the  statute  of 
Ed.  6,  c.  10,  and  1  Eliz.  c.  2,  and  8  Eliz.  c.  1,  which  abol- 
isheth  and  inhibits  all  other  rights  and  ceremonies  and 
forms  of  consecration  (with  all  Popish  ceremonies  and 
pontificals,  wherein  the  manner  of  consecreting  churches, 
chapels,  and  church-yards  is  prescribed)  but  such  as  are 
only  prescribed  in  the  books  of  Common  Prayer  and  ordi- 
nation, wherein  there  is  not  one  word  touching  any  such 

^See  Oldmixon's  Hist,  of  England  under  the  Stuarts,  vol.  1,  p.  165, 
where  it  is  said  that  for  the  rare  doctrine  of  "Sunday  no  Sabbath," 
he   (Harvey)    was  made  the  king's  chaplain. 


231  BLASrilEIMY 


consecration  of  churches,  chapels,  and  altars,  as  this  man 
would  have. 

"2.  He  teaches  and  affirms,  that  the  distinction  of  places 
in  the  church  is  very  ancient,  and  observed  even  from  the 
Apostles  times ;  and  that  several  places  in  the  church  were 
appointed  for  the  Clergy,  and  for  the  Laity,  Alt.  Chr.  c.  8, 
p.  43,  44.  And  these  several  place®  had  several  degrees 
of  holiness.  Auditorium  was  the  place  for  the  laity,  and 
that  was  less  holy ;  but  Presbyterium  was  the  place  for  the 
clergy,  and  this  was  more  holy.  And  in  the  holy  place, 
namely  the  Chancel  or  Presbytery,  there  was  a  throne  or 
chair  placed. 

"3.  But  he  bethinks  himself,  and  saith,  that  this  chair 
was  not  in  all  churches,  but  only  in  the  churches  of  bishops ; 
and  that  such  a  chair  was  in  the  church  of  Jerusalem  and 
Eome ;  and  then  after  affirms  that  the  succession  of  bishops 
in  such  a  chair,  was  one  thing  that  kept  Saint  Augustine 
from  departing  out  of  the  bosom  of  the  Catholick  church ; 
for  he  brings  him  in,  saying  thus,  The  succession  of  priests 
from  Saint  Peter  keeps  me  of  right  in  the  church:  the 
name  of  this  Catholic  see,  that  is,  of  Rome,  keeps  me  in, 
Alt.  Chr.  p.  47. 

"And  again,  Sunday  no  Sabbath,  p.  2,  he  saith,  that  the 
succession  of  bishops  from  the  seat  of  Peter  is  that  which 
keeps  us  in  the  church's  lap. 

"Moreover,  he  saith  touching  this  succesion  in  the  chair, 
that  the  very  note  whereby  heretics  were  known  from  catho- 
lics, was,  that  the  catholics  could  shew  their  churches  and 
the  very  chairs  in  them;  wherein  there  was  not  only  a 
moral  succession  in  purity  of  faith  and  manners,  but  a 
local  succession  of  bishops  continued,  Alt.  Chr.  p.  47. 

"Again,  he  saith,  that  they  that  say  there  were  no  mate- 
rial churches  till  200  years  after  Christ,  are  more  in- 
jurious to  the  church  than  they  are  aware;  for  if  in  all 
this  time  there  were  no  material  churches,  then  there  could 
be  no  material  chair,  then  no  real  inthronization,  then  no 
personal  succession  from  the  apostles,  whereby  the  right 
faith  was  derived  from  God  the  Father  to  his  Son,  and 
from  the  Son  to  his  apostles,  and  from  the  apostles  to 
succeeding  bishops,  Alt.  Chr.  p.  49.      And  a  little  after 


PROSECUTIONS    FOR    CRIMES    AGAINST   RELIGION.         235 

he  saith,  they  that  deprive  us  of  the  benefit  of  this  apos- 
tolical tradition,  pluck  one  staff  out  of  our  hands,  whereby 
we  stay  ourselves  from  falling  from  the  true  catholic 
church,  and  beat  all  heretics  out  of  our  communion. 

"Miserable  were  we,  if  he  that  sitteth  now  archbishop 
of  Canterbury  could  not  derive  his  succession  from  St. 
Augustine,  St  Augustine  from  St.  Greyory,  St.  Gregory 
from  St.  Peter.^^  What  a  comfort  is  this  to  his  Grace, 
and  to  all  those  that  receive  consecration  from  him,  and  to 
all  those  that  they  shall  ordain,  when  they  remember  that 
his  Grace  can  say,  *Ego  sum  hseres  apostolorum,'  &c.  here 
I  and  my  predecessors  have  kept  possession,  here  are  my 
evidences  that  I  have  to  show,  that  I  have  received  the 
right  faith  from  the  true  owner.  All  this  he  saith,  Alt 
Chr.  c.  9,  p.  50. 

"The  uninterrupted  succession  by  imposition  of  hands  of  the 
Clergy  of  the  Church  of  England  from  the  Apostles  (which  is  by 
some  supposed  to  give  particular  efficacy  to  their  ordination,  and, 
indeed,  to  be  essential  to  the  validity  of  Orders)  has  been  much 
litigated.  See  the  Church  Histories  and  "Brett's  Divine  Right  of 
Episcopacy,"  &c.  Lond.  1728.  "Williams's  Succession  of  Protestant 
Bishops  asserted.  &c."  also  his  'Translation  of  Le  Courayer's  De- 
fence of  the  Validity  of  the  English  Ordinations,  and  of  the  Suc- 
cession of  the  Bishops  in  the  Church  of  Eng^land,  2d  ed.  Lond. 
1728,"  and  his  translation  of  "Le  Courayer's  Defence  of  his  former 
Treatise,",  published  in  the  same  year:  together  wifh  the  other 
books  mentioned  in  these  words.  Le  Courayer  for  his  part  in 
this  controversy  was  persecuted  in  France,  and  took  refuse  in  Eng- 
land, where  the  University  of  Oxford  conferred  on  him,  by  Diploma, 
the  degree  of  Doctor  in  Divinity.  In  Ward's  Errata  of  *he  Prot- 
estant Bible,  printed  in  1688,  and  lately  republished  in  Ireland,  it 
is  asserted  that  Bishops,  Priests  and  Deacons,  being  Protestants, 
are  without  consecration,  ordination,  mission,  succession,  and  pas- 
toral jurisdiction ;  and  that  all  those  and  their  flocks  are  guilty  of 
sacrilege.  See  also  "Certain  Accusations  brought  recently  by  Irish 
Papists  against  British  and  Irish  Protestants  of  every  denomina- 
tion, examined  by  Thomas  Kipling,  D.  D.  Dean  of  Peterborough/' 
London,  1809.  In  the  Church  of  Rome,  Orders  are  one  of  the 
Seven  Sacraments.  At  the  time  of  the  Reformation,  their  sacra- 
mental character  was  much  disputed.  In  the  "Institution  of  a 
Christian  Man"  Orders,  Matrimony,  Confirmation  and  Extreme 
Unction  are  recognised  as  Sacraments,  but  declared  to  be  of  in- 
ferior consideration  to  the  other  three,  viz. :  Baptism,  the  Eucharist, 
and  Penance.  It  was  at  length  determined  that  none  but  Baptism 
and  the  Ltfrd's  Supper  are  Sacraments.  See  the  tv/enty-fifth  of 
the  Thirty-nine  Articles  of  Religion.  In  the  Church's  Catechism, 
however,  it  does  not  seem  to  be  absolutely  affirmed  that  these  two 
are  the  only  Sacraments,  but  rather  that  no  others  are  generally 
necessary  to  salvation.  The  sacramental  character  of  Orders  was 
discussed  in  both  houses  of  parliament  during  the  debates  upon 
the  bill  for  removing  doubts  respecting  the  eligibility  of  persons 


236  BLASPHEMY. 


"So  that  he  makes  succession  to  evidence  faith,  and 
not  the  true  faith  to  evidence  succession,  which  is  down- 
right Popish. 

"And  in  his  'Sunday  no  Sabbath,'  p.  48,  he  speaks  to  the 
same  purpose  in  these  words : — In  this  sort  Augustine  con- 
founds the  Donatists  and  Sectaries  of  his  time,  saying, 
'Numerate  Sacerdotes,'  &c.  reckon  up  your  Priests,  who 
succeeded  one  another  after  St.  Peter  in  his  chair ;  if  you 
will  be  esteemed  members  of  the  Church.  Hereby  we 
may  by  God's  mercy  make  good  the  truth  of  our  Church ; 
for  we  are  able  lineally  to  set  down  the  succession  of  our 
Bishops,  from  St.  Peter  to  St.  Gregory,  and  from  him  to 
our  first  Archbishop  St.  Augustin,  and  so  downward  to 
his  Grace  that  now  sits  in  his  Chair,  Primate  of  all 
England  and  Metropolitan. 

"So  that  he  makes  the  succession  of  Bishops  from  St. 
Peter  and  the  See  of  Rome,  to  be  a  sure  and  infallible  sign 
of  the  true  Church,  and  herein  shews  himself  to  be  a 
perfect  Papist. 

"All  this  he  speaks  by  occasion  of  the  Bishop's  chair, 
which  he  saith  is  placed  in  the  Chancel,  which  is  a  degree 
holier  than  the  body  of  the  Church. 

"4.  But  yet  he  affirms  a  holier  place  than  both  these 
and  that  he  calls  'Sacrarium,'  or  'sanctum  sanctorum,'  the 
holy  of  holies,  and  this  he  thus  describes.;  it  is  a  place  at 
the  upper  end  of  the  Chancel,  inclosed  and  railed  in  from 
the  rest  of  the  Chancel,  whereinto  none  may  enter  but  the 
Priests  themselves,  and  none  else,  no  not  the  King,  without 
a  dispensation.  This  he  clears,  as  he  saith,  out  of  the 
history  of  Theodosius  the  Emperor,  who  when  the  time 

in  Holy  Orders  to  sit  in  the  House  of  Commons,  (st  41  G.  3, 
(U.  K.)  c.  63,)  and  upon  a  motion  for  the  issue  of  a  new  writ  for 
tiie  Borough  of  Old  Sarum,  made  in  the  House  of  Commons,  May 
4th,  1801,  see  Cobb.  Pari.  Hist.  See  also  upon  the  sacramental 
nature  of  Orders  and  the  indelible  character  of  the  Priesthood, 
(which  seems  to  be  derived  from  it)  Campbell's  Lectures  upon 
Ecclesiastical  History. 

The  objection  to  the  English   Orders  derived  from  the  story  of 
[  the  Nag's  Head  ordination    (as  it  is  called,  perhaps  consecration 

or  episcopation  would  be  a  more  exact  name)  seems  to  be  extremely 
refined  and  subtle;  since  it  does  not  appear  to  be  questioned  that 
Parker  and  his  brethren  had  been  apostolically  ordained  Deacons 
and  Priests. 


PROSECUTIONS    FOR    CRIMES    AGAINST    RELIGION.         237 

of  offering  gifts  was  come,  rose  up,  and  with  tears  went 
into  the  holy  place,  and  after  his  oblation  stood  within  the 
rails :  but  St.  Ambrose,  saith  he,  put  him  in  mind  of  the 
difference  of  places,  and  told  him  that  that  part  of  the  Sac- 
rarinm  or  Chancel  within  the  rails,  was  only  for  Priests, 
and  no  other  might  enter  in  there,  or  so  much  as  touch 
them.  And  so  he,  fair  and  mannerly,  bad  the  King  go 
forth,  and  stand  with  the  rest  of  the  common  people,  which 
accordingly  he  did.     Alt.  Chr.  p.  81. 

2.    Touching  Altars. 

"1.  He  affirms,  that  we  ought  to  have  in  the  Church  a 
real,  material,  proper  Altar,  Alt.  Chr.  p.  13.  And  again 
he  saith,  we  have  an  earthly  Altar  here  over  earth,  on 
which  tithes,  and  offerings,  and  such  earthly  things 
wtere  at  first  dedicated  and  consecrated,  to  main- 
tain the  earthly  bodies  of  Priests,  whose  bodies  serve  at 
God's  Altar.     Alt.  Chr.  p.  9. 

"2.  For  the  maimer  how  Altars  came  into  the  Christian 
Church,  he  saith  that  no  man  of  judgment  or  learning, 
though  he  looked  over  antiquity,  as  the  devil  looked  over 
Lincoln,  will  say,  and  justify,  that  Altars  crept  into  the 
Church,  but  the  governors  of  Christ's  Church,  and  the 
true  and  only  successors  of  the  Apostles  (sure  he  means 
the  Pope  of  Rome)  brought  them  in  by  the  special  direc- 
tion of  God's  holy  spirit,  Alt.  Chr.  c.  21,  p.  141. 

"To  affirm  that  God's  spirit  directed  the  bringing  in  of 
material  and  proper  altars  into  the  Christian  Church,  is 
to  slander  the  Holy  Ghost,  seeing  the  spirit  of  God  never 
taught  any  man  in  any  age,  any  other  thing  but  that  which 
Christ  taught  in  the  days  of  his  flesh;  as  appears  Joh. 
14,  26.  Now  Christ  never  taught  any  thing  of  earthly  and ; 
material  altars  in  the  Christian  Church;  and  therefore 
that  spirit  that  teacheth  any  such  thing  is  not  the  spirit 
of  Christ,  but  of  Antichrist. 

"3.  For  the  necessity  of  Altars,  he  would  make  that 
appear  in  this  regard,  because  without  them,  he  saith^ 
there  can  be  no  consecration;  the  Eucharist,  saith  he, 
cannot  elsewhere  be  consecrated  but  on  an  Altar,  Alt. 
Chr.  p.  27. 


238  BLASPHEMY. 


"This  he  affirms  stoutly  in  his  Sunday  no  Sabbath,  p. 
48,  and  in  his  Alt.  Chr.  c.  12,  p.  75,  76,  that  where  there 
is  no  Altar  there  can  be  no  consecration.  And  he  saith 
touching  the  Primitive  Church,  that  if  they  had  no  Altar, 
then  they  had  no  Eucharist  to  deliver;  or  if  they  deliv- 
ered it,  they  gave  it  before  it  was  consecrated;  for  they 
had  no  Church  nor  Altar  to  consecrate  the  same  upon,  and 
*Eucharistia  in  Altari  consecratur,'  we  are  sure  out  of  all 
antiquity,  that  the  Eucharist  must  be  consecrated  on  an 
Altar. 

"From  which  desperate  assertion,  it  must  needs  follow, 
that  Christ  did  not  deliver  the  Eucharist  to  the  Apostles, 
nor  they  to  the  faithful,  or  else  that  it  was  not  consecrated, 
as  he  saith,  when  he  delivered  it,  seeing  it  is  most  evident 
by  Scripture  that  Christ  and  his  Apostles  had  no  altars, 
but  tables,  and  did  institute  and  administer  the  Sacrament 
on  a  table  in  an  upper  chamber,  and  not  at  an  altar  in  a 
church.  And  again,  according  to  this  doctrine  the  Church 
of  England  for  this  fourscore  years  hath  had  no  Sacra- 
ments, for  it  hath  had  no  altars,  and  without  altars,  saith 
he,  no  Sacraments. 

"Again,  he  speaks  farther,  St.  Cyprian  tells  you,  saith 
he,  that  the  use  of  altars  is  to  sanctify  the  Eucharist  upon, 
and  that  without  an  altar  it  cannot  be  consecrated,  and 
therefore  Heretics  have  no  Sacraments  among  them,  be- 
cause they  have  no  altars,  Alt  Chr.  c.  24,  p.  17. 

"Here  he  affirms  that  the  altar  doth  sanctify  the  Sacra- 
ment, which  is  no  less  than  hlasphemy :  for  as  by  Christ's 
own  words  it  is  plain,  that  which  sanctifies  the  offering,  is 
greater  than  the  offering  which  is  sanctified;  and  so  he 
makes  a  wooden  or  stony  altar  greater  than  Christ,  which 
is,  as  he  saith,  the  sacrifice  offered. 

"Again,  he  saith,  Heretics  have  no  altars,  whereby  he 
intimates  that  the  Church  of  England  is  heretical,  be- 
cause that  hath  no  altars. 

"4.  For  the  place  of  the  altar,  he  saith,  it  is  Sacrarium 
or  the  Holy  of  Holies,  and  that  the  altar  is  not  to  stand 
in  the  body  of  the  church,  among  the  people;  but,  saith 
he,  let  it  stand  as  the  governors  of  our  church  appoint  it» 
at  the  upper  end  of  the  quire,  or  in  the  highest  or  most 


PROSECUTIONS    FOR    CRIMES    AGAINST   RELIGION.         239 

eminent  place  of  the  chancel,  where  reason  and  piety  ever 
placed  it,  in  the  Eastern  Church,  the  practice  whereof 
Englishmen  and  Britons  ought  to  follow,  to  express  thereby 
their  concord  and  agreement  with  the  Primitive  Church, 
where  St.  Pe'er's  chair  was  set,  exci  pt  some  diptiches  cau 
l>e  produced  for  the  derivation  of  our  faith  and  religion^ 
move  ancient  and  authentical  than  from  St.  Elutheriua 
and  St.  Gregory. 

'^So  that  this  man  derives  our  faith  and  religion  not 
from  Christ  the  Son  of  God,  but  from  two  Popes, 
Elutherius  and  Gregory;  and  this  Christian  faith  and 
religion,  he  makes  to  consist  in  the  placing  the  Com- 
munion-table altar- wise,  at  the  upper  end  of  the  chancel. 

"5.  For  the  matter  of  altars,  he  saith,  these  altars  are 
gome  of  them  of  stone ;  *quia  Christus  est  lapis  angularis,' 
because  Christ  is  a  corner-stone :  and  some  of  them  of  wood, 
the  better  to  express  his  death  on  the  tree.  Sund.  no 
Sab.  p.  43. 

"6.  For  the  ornaments  of  them,  he  saith;  they  are  to 
have  their  carpets,  corporals,  veils  and  rails,  Alt  Chr.  p. 
15. 

"And  touching  corporals,  he  saith  thus.  Pope  Pius 
maketh  mention  of  altars  and  of  a  linen  cloth  or  corporal 
spread  upon  altars :  whereunto  the  practice  of  the  church 
agrees  (sure  he  means  here,  as  in  other  places,  the  church  of 
Rome;  for  it  is  not  the  practice  of  the  church  of  England) 
for  ^Corpus  Domini  non  in  sericis  sed  in  syndone  munda 
consecratur :'  and  to  strengthen  this,  he  adds  the  consti- 
tution of  Pope  Sylvester,  who  ordained  (saith  he)  that 
the  sacrifice  of  the  altar  should  not  be  consecrated  in 
silk  or  dyed  cloth,  but  only  in  linen,  as  his  dead  body  was 
buried  in  clean  linen.  And  thus  he  makes  way  to  Christ's 
corporal  presence  in  the  Sacrament.     Alt.  Chr.  p.  7. 

"7.  For  the  praise  of  alters,  he  saith,  that  they  are  the 
seats  and  chairs  of  state,  where  the  Lord  vouchsafeth  to 
place  himself  among  us ;  for  what  is  the  altar  but  the  seat 
of  the  body  and  blood  of  Christ?  And  these  have  been 
in  all  ages  greatly  honoured  and  regarded  of  the  most  wise, 
most  learned,  and  most  blessed  Saints  of  God,  Alt.  Chr. 
c.  22,  p.  143,  and  159. 


240  blajsphemy:. 


"8.  For  the  reverence  and  worship  of  altars,  he  saith, 
that  when  the  church  was  consecrated,  the  altar  was  the 
chiefest  place,  which  with  most  ceremony  and  devotion  was 
hallowed ;  and  so  tithes  of  the  greatest  sanctity  were 
given  to  the  altar,  Alt.  Chr.  c.  21,  p.  141,  142.  And  that 
the  priests  themselves  durst  not  ascend  thither,  without 
doing  lowly  reverence  three  several  times;  yea,  some,  he 
saith,  did  willingly  fall  down  and  kiss  the  holy  altar.  All 
which  he  propounds  to  our  imitation;  and  when  all  this 
is  done,  he  saith,  altars  are  no  otherwise  used  in  our 
church  than  the  most  holy  fathers  that  ever  lived,  used 
them,  Alt.  Chr.  c.  21,  p.  144. 

"And  again,  c.  22,  p.  152,  he  saith,  if  the  types  of  these 
altars  were  had  in  singular  honour  among  the  Jews,  then 
the  substance  ought  to  be  had  in  much  more  honour  among 
Christians. 

"The  Jews  never  bowed  to  or  before  their  altars, 
though  erected  and  consecrated  by  God's  own  institution ; 
much  less  then  should  we  do  it,  to  or  before  altars  set 
up  and  hallowed  by  men,  contrary  to  Christ's  institution. 

"So  that  he  makes  these  material  altars  of  wood  and 
stone,  superstitiously  set  up  in  the  church,  to  be  the  sub- 
stance which  the  Jewish  altars  did  typify,  to  the  great 
reproach  of  Christ  and  Christian  religion. 

"Again,  ^Sunday  no  Sabbath,'  p.  50,  he  saith,  if  we  do 
only  bend  or  bow^  our  body  to  his  blessed  board  or  holy 
altar  (here  he  clearly  declares,  that  the  worship  he  gives, 
is  to  the  altar  itself,  which  is  plain  idolatry)  but  fall  flat 
on  our  faces  before  his  foot-stool,  so  soon  as  ever  we  ap- 
proach in  sight  thereof;  what  Patriarch,  Apostle,  blessed 
Martyr,  holy  or  learned  Father  would  condemn  us  for  it? 
Or  rather  would  not  be  delighted  to  see  their  Lord  so 
honoured,  &c.  and  concludes  it  thus,  blessed  are  the  serv- 
ants whom  the  Lord  when  he  comes  shall  find  so  doing, 
that  is,  bowing  to  the  altar. 

"9.  iiastly,  he  gives  God  thanks  for  an  altar  set  up  at 
Grantham,  p.  121,  affirms  that  there  is  no  doubt  but 
they  put  salvation  in  great  hazard,  that  undermine  altars, 
p.  150,  and  for  his  own  part,  he  saith,  he  would  be  glad  at 
his  heart  to  be  sacrificed  for  altars,  p.  34,  and  exhorts. 


PROSECUTIONS    FOR    CRIMES    AGAINST   RELIGION.         241 

that  for  as  much  as  God  had  put  into  the  hearts  of  the 
Governors  of  our  Chureh,^*  to  restore  the  Lord's  Table  to 
its  ancient  and  true  place  it  had  in  the  Primitive  Church, 
and  also  to  the  honor  and  reverence  which  of  right  belongs 
nnto  it;  in  regard  of  the  presence  of  our  Saviour,  whose 
chair  of  state  it  is  upon  earth,  and  to  inclose  it  with  rails, 
not  only  to  keep  it  from  all  manner  of  profanation,  but  to 
strike  the  minds  of  all  beholders  with  some  reverence  and 
respect,  to  keep  their  true  distance,  and  to  make  a  differ- 
ence between  place  and  place,  that  therefore  no  sacri- 
legious 2^  and  factious  persons  should  disturb  so  holy  and 
godly  a  purpose,  c.  24,  p.  175. 

"3.    Touching  the  Service  of  the  Church. 

1.  He  teaches  a  first  and  second  service,  and  saith  that 
the  first  service  is  to  be  read  in  Auditorio  or  body  of  the 
church,  and  the  second  service  ought  to  be  read  only  in 
Sacrario,  or  in  the  chancel  at  the  holy  altar,  if  the  practice 
of  holy  Church  be  enquired  after,  Alt.  Chr.  p.  86. 

"Whereas  the  Epistle  and  Gospel  which  is  part  of  his 
second  service,  in  Durand's  time  was  read  in  the  pulpit, 
and  reading  pew,  and  by  Edward  the  Sixth's  Injunction, 
at  the  beginning  of  reformation,  was  to  be  read  in  the 
pulpit. 

"2.  He  saith,  that  this  second  service  consisteth  in  con- 
secrations, oblation  and  orisons,  made  unto  God  the  Father 
only  by  priests,  p.  103. 

"3.  For  the  postures  of  his  second  service,  he  saith  thus; 
when  supplication,  intercession,  consecration  and  giving 
of  thanks  unto  God  the  Father  were  finished  by  the  priest, 
with  his  face  unto  the  East;  and  the  next  office  he  per- 
formed, being  to  bless  the  people,  who  always  kneeled  be- 
low him,  and  were  divided  from  him,  and  did  not  stand 
about  or  above  him  and  the  holy  altar  itself.  Is  it  net  fit 
he  turn  him,  after  reverence  done  to  the  holy  altar,  aud 
with  his  face  unto  the  West,  bless  the  congregation  of 
the  Lord,  and  do  it  upon  this  ground,  ^Aperui  os  in  medio 

'*Th?,t  is,  our  Popish  and  superstitious  prelates. 
"See  how  this  wicked  man  hath  bent  his  bow  against  the  face  of 
the  Parliament. 


242  BLASPHEMY. 


Ecclesiae/  I  have  opened  my  mouth  in  the  midst  of  the 
church,  Alt.  Chr.  c.  17,  p.  118. 

"All  the  prayers  in  the  canon  of  the  mass  itself  are  *pro 
circumstantibus/  for  those  who  stood  round  about  the 
altar,  and  priest  when  he  consecrated. 

"Here  he  expounds  the  Scripture,  not  according  to  the 
mind  of  God,  but  according  to  his  own  carnal  mind. 

"4.  For  the  time  when  second  service  is  to  begin,  he 
fiaith,  that  St.  Ambrose  began  not  the  second  service  as  our 
church  calls  it,  at  the  altar,  before  the  first  service  in  the 
body  of  the  church  was  finished,  which  still  is  the  cus- 
tom in  our  church,  and  none  will  ever  go  about  to  put 
that  sweet  harmony  which  we  keep  with  the  Primitive 
Church  out  of  tune  but  schismatics  and  sectaries.  Sund. 
no  Sab.  p.  29. 

4.    Touching  Confession^  Penance  and  Absolution. 

"1.  He  affirms  and  maintains  Popish  Confession,  for  he 
thus  describes  it,  to  be  an  act  wherein,  we  confess  our 
fault  to  God,  not  as  if  he  were  ignorant  thereof;  but  so 
far  forth  as  by  this  confession,  the  mind  is  set  in  readi- 
ness for  satisfaction ;  our  repentance  springs  out  of  it, 
and  by  our  penance  God  is  appeased,  Alt.  Chr.  p.  54. 

"So  he  makes  God  to  be  appeased  not  by  the  death  of 
Christ  but  by  a  man's  own  penance. 

"2.  He  teaches  Popish  Penance;  for  he  saith  it  is  a 
discipline  used  for  the  humbling  and  casting  down  of  men, 
imposing  on  them  such  a  manner  of  conversation,  as  may 
move  pity  and  commiseration;  it  giveth  law  to  food  and 
raiment,  orders  men  to  lie  in  sackcloth  and  ashes;  to 
humble  ourselves  before  the  priests,  and  to  fall  down  upon 
our  knees  before  God's  altars.  Penance  works  all  this. 
And  after  in  the  same  tenth  chapter,  ^To  this  purpose' 
saith  he  'a  solemn  day  was  set  apart  for  taking  of  public 
penance  for  open  faults,  by  imposition  of  hands  and 
sprinkling  of  ashes,  viz.  Ash- Wednesday :  this'  saith  he 
*is  the  godly  discipline  whereof  our  church  speaks  in  the 
Commination,  of  putting  notorious  sinners  to  open  penance 
in  the  beginning  of  Lent,  and  wish  that  it  might  be  re- 
stored again,  p.  58. 


PROSECUTIONS    FOR    CRIMES    AGAINST   RELIGION.         2A3 

"3.  For  Popish  absolution,  he  saith,  that  as  Ash-Wednes- 
day was  appointed  for  putting  notorious  sinners  to  open, 
penance;  so  Maundy-Thursday  was  set  apart  for  their 
absolution:  and  this  absolution  they  took  on  their  knees, 
by  imposition  of  the  priests  hands.  And  this  he  com- 
mends, though  he  saith,  he  knows  it  is  not  pleasing,  and 
they  that  read  it  will  say,  that  therein  they  have  endured 
long  penance,  p.  58. 

5.    Touching  the  Sacraments. 

"1.  In  Alt.  Chr.  c.  25,  p.  181,  he  speaks  thus — Come  we 
to  the  Sacraments,  and  of  two  which  remain  as  generally 
necessary  to  salvation,  we  shall  not  have  one  at  all  left  us, 
if  they  and  the  rites  and  the  ceremonies  about  them  must 
not  be  maintained  by  the  authority,  practice  and  tradition 
of  holy  church. 

"So  that  he  grounds  the  sacraments  not  on  the  Scrip- 
ture, but  on  the  tradition  of  holy  church,  which  is  plain 
popery, 

"2.  Touching  baptism,  he  saith,  that  baptism  is  not 
rightly  performed,  *nisi  signum  crucis  adhibeatur,'  unless 
the  sign  of  the  cross  be  used. 

"Though  it  be  evident  that  the  Apostles  of  Christ  never 
used  it,  and  therefore  by  his  doctrine  did  never  rightly 
baptise. 

"3.  Touching  the  Supper  of  the  Lord,  he  saith,  that  the 
Protestant  hath  the  abuses  and  novelties  only  which  are 
crept  into  the  Roman  church  in  detestation,  not  the  things 
themselves,  no  not  .the  name  of  the  very  Mass  itself,  Alt. 
Chr.  c.  20,  p.  138. 

"Whereas  the  very  name  of  the  Mass  is  obliterated  and 
expunged  out  of  the  book  of  Common  Prayer,  the  Articles 
of  Religion  and  the  book  of  Homilies,  and  is  in  truth  a 
mere  barbarous  word. 

"Again,  he  saith,  c.  16,  p.  108,  that  the  people  were 
not  so  profane  and  unchristian,  to  press  rudely  into  the 
Lord's  house,  and  not  to  perform  their  humble  and  most 
lowly  reverence  towards  the  holy  and  most  sacred  altar, 
where  Christ  is  most  truly  and  really  present  in  the 
blessed  sacrament. 


244  BLASPHEMY. 


^^And  that  we  may  know  that  by  real  presence  he  means 
corporal  presence,  he  saith,  as  he  tells  us  out  of  Irenseus, 
that  when  Christ  took  the  bread  and  the  wine,  he  gave 
thanks,  and  said,  that  the  bread  was  his  body,  and  con- 
fessed the  wine  to  be  his  blood,  and  taught  a  new  oblation 
of  the  New  Testament  which  the  church  receiving  from  the 
apostles,  doth  offer  unto  God  in  all  the  world,  c.  18  p.  122. 

"Again,  he  saith,  the  priest  offers  a  true  and  full  sacri- 
fice to  God  the  Father,  and  that  when  the  priest  doth  use 
the  bread,  and  pour  wine  into  the  chalice,  and  doth  not  con- 
secrate water  only  without  wine,  he  doth  offer  a  pure  sacri- 
fice, as  Christ  himself  did,  p.  123. 

"This  is  just  the  sacrifice  and  popish  doctrine  of  the 
Mass,  and  indeed  pure  nonsense;  for  Christ  in  the  sacra- 
ment doth  give  himself  to  us,  we  do  not  offer  him  to  God ; 
he  bids  us  take  and  eat  the  bread,  and  take  and  drink  of 
the  cup;  he  doth  not  bid  us  offer  the  bread  and  the  wine. 

"And  yet  further,  he  saith,  this  sacrifice,  the  priest  stand- 
ing at  the  altar,  offers  unto  God  for  all  the  world,  for 
bishops,  for  the  church,  &c.  according  to  our  collect  on 
Good-Friday,  and  prayer  for  the  whole  estate  on  Christ^s 
church  militant  here  on  earth,  p.  124. 

"Whereby  it  appears  that  he  would  fain  screw  our  church 
into  this  popish  doctrine  and  practice. 

"Also  that  he  may  make  good  his  Mass,  he  calls  the 
sacrament  the  sacred  Host,  p.  124,  and  the  sacrifice  of  the 
altar,  p.  127,  and  p.  128,  he  saith.  Thus  you  see  altars, 
oblations  and  sacrifices  were  in  common  use  among  the 
most  holy  saints  of  God  that  ever  lived. 

6.    Touching  Prayer  for  the  Dead. 

"He  saith,  that  because  Geminius  did  appoint  a  clergy- 
man his  executor,  whereby  he  was  withdrawn  from  the 
altar  and  sacrifice,  therefore  it  was  ordered,  that  they 
should  not  sacrifice  for  him,  nor  celebrate  a  sacrifice  for 
his  death. 

"But  on  the  other  side,  he  saith,  that  the  samfe  holy 
martyr  is  careful  to  have  the  names  of  such  confessors, 
who  died  in  prisons  to  be  brought  to  him,  and  the  par- 
ticular days  of  their  departures,  that  sacrifices  and  obla- 


TROSECUTIONS    FOR    CRIMES   AGAINST   RELIGION.         245 

tions  might  be  celebrated  for  them,  c.  18,  p.  123.  And  a 
little  after  in  the  same  chapter,  he  saith,  when  the  sacri- 
fice in  our  Mediator  is  offered,  it  cannot  be  denied  but  the 
souls  of  the  faithful  are  hereby  eased,  p.  126,  plainly 
teaching  a  purgatory. 

7.    Touching  the  Ceoss  and  Pictures. 

"1.  For  the  cross,  he  saith,  that  the  cross  ever  used  to 
stand  on  the  altar,  and  that  Rhensenus  saith,  that  in  those 
times  Christians  had  no  other  images  in  their  churches, 
but  only  the  cross  of  Christ,  which  stood  on  the  altar ;  and 
accordingly  he  hath  placed  a  cross  in  the  midst  of  his 
altar,  in  the  church  of  Yelden. 

"2.  Touching  pictures,  he  saith,  that  pictures  in  a  chapel 
cannot  but  strike  the  beholders  with  thoughts  of  piety  and 
devotion,  at  the  entering  into  so  holy  a  place,  c.  13,  p.  87. 
Whereas  St.  Paul  saith,  Christ  is  not  to  be  known  after 
the  flesh,  according  to  which  these  pictures  only  represent 
him,  if  so  be  that  they  were  true  pictures  of  him. 

8.  Touching  Obedience.  ' 

"He  maintains  popish  and  blind  obedience:  for  he 
would  have  the  decrees,  constitutions  and  canons  of  holy 
church,  absolutely  obeyed  before  scanned  and  disputed 
upon,  cap.  25,  p.  187,  and  p.  190,  he  saith,  that  what  canons 
and  laws  the  lords  archbishops  and  bishops,  and. the  whole 
convocation  house  frame  and  devise,  and  the  king's  majesty 
gives  assent  unto,  under  his  broad  seal,  ought  not  to  be 
banded  up  and  down  by  vicars,  parsons,  and  parishioners, 
and  questioned  at  their  pleasures,  but  saith,  he  believes, 
that  they  ought  to  be  allowed  and  believed,  and  that  be- 
fore they  maintained  rationihus  cogentihus, 

"Therefore  the  last  canons  and  new  oath  and  benevol- 
ence, ought  to  be  obeyed,  and  neither  disputed  nor  de- 
bated, much  less  renounced  and  censured,  if  this  be  good 
doctrine. 

9.  Touching  Preaching. 

"1.  He  teacheth,  that  reading  is  preaching;  for  (saith 
he)  reading  of  lessons,  and  of  Epistle  and  Gospel,  is 
preaching;  and  the  reader  is  a  preacher.      Sunday  no 


246  BLASPHEMY. 


Sabbath,  p.  34.  And  a  little  after,  Reading  then  is  preach- 
ing, nay,  heavenly  preaching,  and  there  is  nothing  more 
profitable  for  the  church  and  more  powerful  to  make  the 
most  perfect  men  of  God,  even  to  make  martyrs,  p.  34. 

"He  saith,  that  when  Paul  preached  at  Troas,  men- 
tioned Acts  XX.  and  continued  his  speech  till  midnight,  he 
did  but  read  a  homily ;  and  he  saith,  it  is  hard  for  him  to 
say,  whether  St.  Paul  made  it  himself  and  pronounced  it, 
or  whether  some  other  made  it,  and  he  only  read  it.  But 
yet  after,  he  absolutely  concludes,  that  St.  Paul's  preach- 
ing there  till  midnight,  was  only  the  reading  the  Apostle's 
decrees,  and  saith  thus:  Wherefore  I  take  it  for  a  clear 
truth,  that  St.  Paul  read  the  decrees,  and  sure  I  am  that 
when  he  read  them,  and  did  no  more  but  read  them,  without 
adding  or  diminishing,  that  he  preached  by  way  of  homily. 
Eeading  of  homilies  then  is  preaching,  and  so  is  adjudged 
by  the  learned  bishops  in  the  Council  of  Rhemes,  (which 
was  a  Popish  Council)  Sunday  no  Sabbath,  p.  32,  33. 

"2.  Touching  lectures,  he  saith,  that  the  plot  of  setting 
up  lectures  in  every  good  town,  was  but  a  dull  device  of 
a  foggy  brain  and  willing  blunderer,  that  light  upon  it  in 
a  mist,  wherein  the  brethren  were  at  first  involved,  Alt. 
Chr.  c.  24,  p.  172. 

"Though  Origen  and  others  in  the  primitive  church  were 
lecturers,  and  lectures  in  divinity  were  commonly  used, 
within  300  years  after  Christ,  both  in  Antioch  and  other 
Christian  churches. 

"3.  Touching  afternoon  sermons,  he  saith,  that  our 
Saviour  came  not  to  break  the  law,  but  to  fulfil  it,  and  he 
being  at  Capernaum  on  a  sabbath  day,  preached  but  once, 
for  he  went  immediately  from  the  synagogue  to  Simon's 
house  to  dinner,  and  went  no  more  to  the  synagogue  to 
preach  in  the  afternoon.  The  law  that  enjoined  afternoon 
sermons  for  the  keeping  the  sabbath,  was  not  then  known 
to  the  Pharisees  themselves,  who  else  were  apt  enough  to 
have  laid  it  in  his  dish  at  supper :  no,  nor  to  these  men's 
progenitors,  for  1565  years  after,  Sunday  no  Sabbath,  p. 
31. 

"Though  bishop  Hooper,  bishop  Latimer,  Adam  Damp- 
lip,  and  sundry  others  of  our  martyrs  preached  twice  every 


PROSECUTIONS    FOR   CRIMES    AGAINST   RELIGION.         247 

Sunday;  and  St.  Chrysostom,  Ambrose,  Augustine,  and 
others  of  the  Fathers  preached  twice  every  day. 

2.    Touching  the  Sabbath. 

"He  most  wickedly  and  vilely  reproaches  the  Sabbath. 
He  saith  the  Sabbath  is  old  leven  to  be  cast  out  of  the 
thurch,  and  that  it  hath  soured  the  affections  of  too 
many  towards  the  church,  and  disturbed  the  peace,  and 
hindered  the  pious  devotion  thereof,  c.  22,  p.  155. 

"Again,  he  saith,  It  was  anabaptized  after  the  mind  of 
some  Jew,  hired  to  be  godfather  thereof,  and  to  call  it 
the  Sabbath.     Sunday  no  Sabbath,  p.  6. 

"Though  the  Lord's  day  be  called  a  Sabbath  by  sundry 
Fathers,  Councils  and  ancient  writers,  both  Protestant  and 
Popish,  by  the  homUies  of  our  church,  acts  of  parliament, 
proclamations  of  the  king,  and  by  the  very  canons  them- 
selvea 

"And  a  little  after  he  saith,  for  this  name  Sabbath  is 
not  a  bare  name,  like  a  spot  in  their  foreheads,  to  know 
Laban's  sheep  from  Jacob's,  but  indeed  it  is  a  mystery  of 
iniquity  intended  against  the  church;  for  allow  them  but 
their  Sabbath,  and  you  must  allow  them  the  service  that 
belongs  to  their  Sabbath,  which  saith  he,  is  nothing  but 
preaching,  Sunday  no  Sabbath,  p.  6,  7. 

"And  again,  p.  20.  Hence  it  is,  saith  he,  that  some  for 
want  of  wit,  some  for  too  much,  adore  the  Sabbath  as  an 
image  dropped  down  from  Jupiter,  and  cry  before  it  as 
they  did  before  the  golden  calf ;  This  is  an  holy  day  to  the 
Lord :  whereas  it  is  indeed  the  great  Diana  of  the  Ephe- 
sians,  as  they  use  it. 

"And  a  little  after,  yet  to  die  they  will  call  it  a  Sabbath ; 
presuming  in  their  zealous  ignorance  or  guileful  zeal,  to  be 
thought  to  speak  the  scripture  phrase,  when  indeed  the 
dregs  of  Ashdod  flow  from  their  mouths ;  for  that  day 
which  they  nickname  the  Sabbath,  is  either  no  day  at 
all,  or  not  the  day  that  they  mean. 

"Whereas  sahhatum  signifies  a  day  of  sacred  rest  con- 
secrated to  God;  whence  all  such  days  are  in  scripture, 
called  sabbaths  as  well  as  the  seventh  day.  Therefore 
the  Lord's  day  may  be  so  termed  without  any  danger  of 


248  BLASPHEMY. 


Judaism,  as  well  as  Easter  is  still  called  Pasca,  and  Whit- 
sunday Pentecost,  though  Jewish  words  and  institutions. 

11.    Touching  Maetyrs  and  Witnesses  of  the  Christian 
Faith  and  Truth. 

"He  reproaches  and  slanders  all  those  blessed  martyrs 
that  have  resisted  and  withstood  the  cursed  heresies  of  tlie 
church  of  Rome,  in  all  ages,  and  particularly  our  own 
English  martyrs,  as  appears  in  a  most  remarkable  passage 
that  he  sets  down  in  his  Altare  Christianum,  c.  16,  p.  114. 
The  words  are  these,  ^This  was  the  holy  and  profitable  use 
of  these  diptiches,  much  unlike  the  list  of  persons  cen- 
sured by  holy  church,  called  with  some  reproach  of  truth 
and  Christian  religion,  ^Catalogus  testium  veritatis/ 

"[This  book  was  set  forth  by  Illyricus,  and  is  thus  in- 
tituled, A  Catalogue  of  tbe  Witnesses  of  the  Truth,  which 
before  our  time,  have  opposed  and  resisted  the  primacy 
of  the  bishops  of  Rome,  and  divers  superstitions,  errors 
and  deceits  of  popery;  as  namely,  John  Hus,  Jerome  of 
Prague,  Luther,  with  divers  others,  which  the  church  of 
Rome  therefore  condemned ;  which  Romanish  church,  this 
great  champion  thereof,  terms  holy  church;  and  these 
faithful  Christians  and  true  martyrs  and  confessors,  he 
saith  were  censured  by  holy  church,  that  is,  the  church 
of  Rome,  for  that  only  censured  them;  and  therefore  he 
saith,  they  are  called  witnesses  of  the  truth,  to  the  reproach 
of  truth  and  Christian  religion.  Where  he  plainly  and 
openly  declares  himself  to  fight  for  the  church  of  Rome, 
against  the  true  church  of  Christ.] 

"And  then  for  our  own  English  martyrs,  he  goes  on  thus : 
And  a^  unlike  a  calender  that  I  have  seen,  wherein  the 
holy  martyrs  and  confessors  of  Jesus  Christ,  who  not  only 
had  place  sometimes  in  these  diptiches,  but  whose  name 
are  written  in  heaven,  are  erased  out,  and  traitors,  mur- 
derers, rebels,  and  heretics  set  in  their  room,  if  the  best 
of  our  chronicles  deserve  credit,  that  if  Penry,  Hacket  or 
Legat,  had  come  in  time,  they  might  have  challenged  as 
orient  and  scarlet  coloured  a  dye  as  some  of  them. 

"[This  he  speaks  of  the  calender  prefixed  to  the  book 
of  martyrs,  where  the  popish  saints  are  omitted,  and  our 


PROSECUTIONS    FOR   CRIMES    AGAINST   RELIGION.         249 

English  martyrs  names  inserted,  whom  he  terms  traitors, 
murderers,  rebels  and  heretics.  And  that  this  he  mean», 
is  most  evident,  because  there  is  no  other  calender  but  it 
alone,  and  one  almanack  taken  out  of  it,  of  this  nature; 
and  because  he  refers  to  our  English  chronicles,  and  to 
our  English  sufferers.] 

12.    Touching  Saint  Paul. 

"He  reproaches  and  slanders  this  blessed  apostle;  for 
he  saith,  that  Saint  Paul  in  setting  things  in  order  among 
the  Corinthians,  crossed  the  order  used  by  Christ,  and  for- 
bad the  Corinthians  to  take  their  supper  before  the  sacra- 
ment, which  is  utterly  false,  as  appears  by  the  apostle's 
own  words,  1,  Cor.  11,  22,  and  34;  Alt.  Chr.  p.  163;  Sunday 
no  Sabbath,  p.  3;  he  saith,  that  Saint  Paul,  contrary  to 
his  own  rules  given  to  the  Corinthians,  did  administer  the 
sacrament,  and  preach,  where  men  did  both  eat  and  drink 
(wherein  again  he  slanders  the  apostle:  for  he  never  gave 
any  such  rule  to  the  Corinthians,  as  it  is  evident  by  the 
text  itself)  and  he  saith  he  continued  preaching  out  of 
order  till  midnight. 

"So  that  he  affirms,  1.  That  Saint  Paul  crossed  Christ's 
order.  2.  That  he  crossed  his  own  orders,  and  3.  That 
he  did  things  out  of  order. 

"These  among  other  corrupt,  false  wicked  and  popish 
points,  are  gathered,  out  of  his  own  books,  and  out  of  his 
own  words,  and  here  presented  to  the  right  honourable 
the  Upper  House  of  Parliament. 

"Seeing  then  it  is  most  evident,  that  this  wretched  man 
hath  come  forth  as  a  fierce  enemy  against  Jesus  Christ, 
and  his  everlasting  truth;  and  as  a  great  and  a  bold 
agent  and  factor  for  the  Devil  and  Antichrist;  may  it 
therefore  please  this  right  honourable  Assembly  of  Parlia- 
ment, that  by  that  strength  which  Almighty  God  hath 
given  into  your  hands,  he  may  be  cast  forth  of  the  church 
of  England,  as  dirt  and  dung,  as  one  of  the  chief  banes 
and  pests  thereof,  who  hath  been  one  busy  cause  of  all 
those  Tricked  doctrines  and  Popish  rites,  and  of  all  those 
horrible  disorders  and  confusions  that  are  among  us,  un- 
der the  heavy  burden  whereof  this  whole  kingdom  groans 


250  BLASPHEMY. 


and  sighs  for  deliverance,  that  all  others  by  his  example 
may  fear,  and  do  no  more  any  such,  thing. 

"When  many  of  the  chief  points  here  .expressed  ( for  the 
time  would  not  suffer  the  producing  of  them  all)  were 
brought  forth  in  judgment  against  the  Doctor,  at  a  Com- 
mittee of  many  lords,  in  the  Painted  Chamber,  Feb.  11,  the 
man  was  not  able  to  make  any  reasonable  Defence ;  for  hig 
parts  and  learning  had  quite  forsaken  him,  if  ever  he  had 
any,  and  he  had  nothing  left  in  him  but  anger  and  passion 
to  manage  his  cause;  which  provoked  all  good  Christians 
to  praise  God,  who  had  given  his  truth  such  a  weak  enemy ; 
and  error  such  a  foolisb  patron.  Whereupon,  the  day 
following,  the  House  sentenced  him,  as  follows  r^^ 

"12  Feb.  1641. — The  Upper  House  of  Parliament  did 
Sentence  and  resolve  upon  the  question: 

"1.  That  Doctor  John  Pocklington  is  by  the  Judgment 
of  the  House  prohibited  ever  to  come  into  the  verge  of 
the  king- s  court.  2.  That  he  is  deprived  of  all  his  ecclesias- 
tical livings,  dignities,  and  preferments.  3.  That  he  is 
disabled  and  held  uncapable  hereafter  to  hold  any  place 
or  dignity  in  the  church  or  commonwealth.  4.  That  his 
two  books,  one  intituled,  "Altare  Christianum,"  the  other, 
"Sunday  no  Sabbath,''  be  publicly  burnt  in  the  city  of 
London,  and  the  two  Universities,  by  the  hand  of  the 
common  Executioner." 

"Ordered  by  the  Lords,  that  all  whom  it  concerns,  shall 
put  in  execution  the  Judgment  of  this  House  against  the 
said  Doctor  Pocklington. 

"Certain  Articles  against  Master  Pocklinton,  found  in 
the  records  of  the  University  of  Cambridge,  and  truly 
transcribed  by  Master  Tabor,  which  shew  that  the 
seed  which  brought  forth  all  this  cursed  fruit,  had 
taken  root  in  him  long  ago. 

"1.  After  words  of  consecration,  the  body  of  Christ  is 

'""Dr.  Bray,  one  of  the  Archbishop's  chaplains,  who  had  licenscl 
Pocklington's  books,  acknowledged  his  offence  at  the  bar  of  the 
House,  confessed  that  he  had  not  examined  the  books  with  that 
caution  that  he  ought,  and  made  a  public  recantation  in  the  church 
of  Westminster.  But  Pocklington  refusing  to  recant  about  thirty 
false  proposititions.  which  the  Bishop  of  Lincoln  [Williams]  had 
collected  out  of  his  books,  was  sentenced  bv  the  Lord  Keeper," 
&c.     Neal's  Hist,  of  the  Puritans,  vol.  2,  p.  314,  ed.  1759. 


TROSECUTIONS    FOR    CRIMES    AGAINST   RELIGION.         251 

SO  essentially,  and  inseparably  present  in  tlie  sacrament, 
as  that  Hoc  est  corpus  meum  must  be  talien  plainly  as  it 
sounds,  fiot  drawing  any  manner  of  trope  or  figure  therein, 
not  thinking  that  the  spirit  in  so  great  a  mystery  should 
play  the  vain  and  idle  rhetorician. 

"2.  Hereof  being  reprehended  by  master  Belcanquall, 
lie  more  peremptorily  defended  it;  affirming,  that  except 
the  bare  word  alone  of  transubstantiation,  he  could  find 
no  fault  at  all  in  Bellarmine's  doctrine  of  the  sacrament. 

"3.  He  was  much  offended  that  this  question  should  be 
propounded  in  our  schools,  ^Secessio  ab  Ecclesla  Romana 
fuit  necessaria.' 

"4.  He  wondered  at  one  of  our  fellows,  who  having  op- 
portunity, would  not  be  present  at  Mass,  it  being  a  thing 
both  requisite  and  lawful,  in  as  much  as  there  was  a  lawful 
ministry,  giving  no  other  thing  than  what  we  have  in  our 
sacrament. 

"5.  He  affirmed  it  to  be  an  evident  sign  how  acceptable 
the  Romish  religion  was  to  God  in  former  ages,  because 
there  were  not  then  in  the  times  of  popery,  so  many  mur- 
ders, adulteries,  robberies,  &c.,  as  since  have  been  in  the 
time  of  protestancy. 

"He  counselled  younger  men  beginning  to  study  divin- 
ity, wholly  to  rely  upon  Cassander's  Consultations,  as  him- 
self there  had  done,  as  the  safest  author  for  resolution 
about  the  true  church. 

"7.  On  a  Gun-powder  Treason  day,  he  was  offended  at 
an  oration  made  by  a  scholar,  wherein  traitor  Faux  was 
with  fitting  terms  detested,  and  his  matchless  impiety 
execrated:  He  said  it  was  a  great  offence  of  our  church 
to  speak  evil  of  any  that  are  dead. 

"8.  By  the  masters  not  regarding  it,  our  College  is  very 
ill  reported  of  abroad,  for  corruption  in  religion,  and 
scandalous  opinions,  which  is  occasioned  by  the  master's 
deputy,  who  oftentimes  useth,  and  that  before  young 
gentlemen,  and  other  young  students,  with  great  earnest- 
ness of  words  and  countenance,  to  argue  for  pontifical 
doctrines,  never  drawing  to  any  contrary  conclusion  where- 
by to  inform  them  otherwise. 


252  BLASPHEMY. 


"9.  He  held  that  Christ's  righteousness  could  not  be 
imputed  to  us. 

"10.  That  our  sins  were  no  way  imputed  to  Christ. 

"11.  That  interpretation  of  Scripture  should  be  made, 
not  by  Scripture,  but  the  exposition  of  holy  men. 

"12.  That  Bellarmine  and  Baronius  in  all  worth,  far 
exceeded  all  protestant  divines,  wishing  that  our  religion 
were  as  well  defended  by  our  men,  as  theirsi  is  by  them. 

"13.  That  Tortura  Torti,  and  Kesponsio  ad  Apologiam 
Bellarmini  were  works  of  small  worth,  solidity  and  gravity. 

"14.  He  professed  also  in  his  sermon,  the  like  belief  of 
the  bread  and  wine  in  the  sacrament,  to  be  verily  turned 
into  the  flesh  of  Christ,  as  he  believed  Moses  rod  to  be 
verily  turned  into  a  serpent,  though  the  sensible  muta- 
tion were  not  there. 

"15.  He  laboured  also  therein  to  answer  the  objection 
which  the  protestant  divines  make  against  the  pontifical 
doctrines  of  the  sacrament. 

"16.  At  a  public  disputation  with  us,  where  he  main- 
tained 'Romanam  Ecclesiam  esse  veram,  visibilem  Christi 
Ecclesiam;'  being  admonished  by  master  Belcanquell 
respondent,  that  doctor  Whittakers,  doctor  Fulke,  doctor 
Abbott,  do€tor  Downham,  master  Calvin,  monsieur  de 
Plessis,  Sadael,  Moulin,  and  many  more  of  our  divines 
held  the  contrary;  he  notwithstanding  with  great  vehem- 
ency  slighted  all  that  so  said,  'impios,  sceleratos,  perni- 
ciosos  atque  in  ipsum  Christum  blasphemos,'  with  other 
words  to  that  effect:  whereof  the  master  when  he  was 
publicly  admonished,  would  take  no  notice. 

"17.  The  college  also  from  whence  he  came  had  some 
jealousies  of  him,  and  publicly  in  a  divinity  act  pro  gradu, 
he  was  so  offensive,  that  for  fear  he  should  lose  his  degree, 
he  afterwards,  whether  by  command  or  counsel  we  know 
not,  made  an  apologetical  retraction  in  a  public  sermon, 
of  those  offences  that  he  had  given  in  that  act  of  his." 
John  Goodman — 1640.^'^ 

John  Goodman  in  1640  merely  for  being  a  Romish  Priest 
was  ordered  killed. 

"Rushworth's  Historical  collections  (Book  4)  Vol.  1,  part  3,  p.  166. 
Howell^  State  trials,  v.  4,  p.  59-64. 


PROSECUTIONS    FOR   CRIMES   AGAINST   RELIGION.        253 


Nathaniel  Barnard — 1640. ^^ 

What  follows  is  all  that  was  found  concerning  this  case. 

"Nathaniel  Bernard,  having  preached  a  sermon  at  Cam- 
bridge which  gave  offence,  was  cited  before  the  high  com- 
mission, when  the  following  passages  were  deemed  ob- 
jectionable. 

"  *It  is  not  the  single  having  of  God's  ordinances  of 
public  worship,  but  having  them  in  their  purity,  that  digni- 
fies a  nation.  God's  ordinances  in  their  purity  are  a  sure 
shield  to  a  nation  from  public  ruin  and  desolation.  For 
the  proof  of  this,  I  challenge  all  records,  both  human  and 
divine,  to  produce  one  instance  wherein  God  punished  any 
part  of  his  church,  wath  any  national  ruin  and  destruction, 
before  they  had  departed  from,  or  corrupted  his  ordi- 
nances. The  gospel,  which  is  the  power  of  God  to  salva- 
tion, is  the  means  by  which  God  manifesteth  his  omni- 
potent power  in  the  conversion  and  salvation  of  all  those 
that  believe.  Is  there  not  a  generation  of  profane  men 
among  us,  who  are  afraid  and  ashamed  to  preach  twice  on 
a  Lord's*  day ;  to  preach  plainly,  powerfully,  and  spiritu- 
ally to  the  souls  and  consciences  of  their  people,  lest  they 
should  be  accounted  puritans?' 

"But  the  principal  exception  was  the  conclusion  of  his 
sermon,  as  follows:  *It  is  impossible,  I  say,  that  any 
should  be  saved  living  and  dying  without  repentance,  in  the 
doctrine  and  idolatrous  worship  of  the  church  of  Rome, 
as  the  late  Tridentine  council  hath  decreed.  My  reason 
is,  that  he  who  thinks  of  going  to  heaven  in  any  other  way 
than  by  faith  in  Christ  only,  shall  never  come  there. 
Furthermore,  if  God's  ordinances  of  public  worship,  in 
their  divine  purity,  be  the  glory  of  a  nation;  then  it  fol- 
lows, that  they  who  go  about  to  deprive  a  nation  of  them, 
either  wholly,  or  of  their  purity,  go  about  to  make  the 
nation  base  and  inglorious,  and  are  the  enemies  and  trai- 
tors of  that  nation.  Let  us  then  pray  these  men  either 
to  conversion,  if  it  be  the  will  of  God,  or  to  destruction. 
And  let  us  use  that  prayer  against  them,  which  David 
used  against  Ahithophel,  with  which  I  will  conclude:  O 

"  Reese,  Richard,    Compendious  Martyrology,  v.  3,  pp.  428-429. 


254  BLASPHEMY. 


Lord,  turn  the  council  of  all  these  Ahithophels  into  folly, 
who  go  about  to  lay  the  honour  of  this  church  and  nation 
in  the  dust,  by  depriving  us  of  the  purity  of  thy  ordi- 
nances of  public  worship,  which  are  the  glory  of  this  our 
nation.' 

"For  these  expressions  in  his  sermon,  Mr.  Bernard  was 
most  cruelly  censured  in  the  high  commission.  He  was 
suspended,  excommunicated,  fined  one  thousand  pounds^ 
condemned  in  costs  of  suit,  and  committed  to  New  Prison ; 
where,  for  six  months,  he  was  most  barbarously  used,  and 
almost  starved  for  want,  of  which  he  complained  in  sundry 
letters  and  petitions  which  he  sent  to  the  bishop ;  but  the 
good  man  could  obtain  no  relief,  unless  he  would  defile  his 
conscience  by  a  public  recantation.  Whether  this  severe 
and  heavy  sentence  was  disproportionate  to  his  crime,  the 
impartial  reader  will  easily  determine. 

"The  degrading  recantation  enjoined  upon  Mr.  Bernard, 
was  as  follows :  'Whereas  in  a  sermon  made  by  me,  in  this 
place,  the  6th  of  May  last,  upon  this  text,  "The  glory  is  de- 
parted from  Israel,  because  the  ark  of  God  was  taken,"  1 
Sam.  iv.  21 ;  I  had  this  passage :  ^The  gospel,  which  is  the 
power  of  God  unto  salvation,  is  the  means  by  which  God 
manifesteth  his  omnipotent  power  in  the  conversion  and 
salvation  of  all  that  believe.'  ^And  I  do  here  publicly 
acknowledge,  that  hereby,  contrary  to  his  majesty's  com- 
mand in  his  declaration  lately  published  with  the  articles 
of  religion,  I  did  go  beyond  the  general  meaning  of  that 
place  of  scripture,  and  of  the  said  articles ;  and  drew  the 
same  to  maintain  the  one  side  of  some  of  those  ill-raised 
differences,  which  his  majesty's  said  declaration  mention- 
eth.  And  this  I  did  rather  out  of  a  desire  to  thrust  some- 
thing into  my  said  sermon  in  aflfirmation  of  one  side  of  the 
said  differences  than  was  any  way  occasioned  by  the  text 
I  preached  from.  For  which  I  here  publicly  profess  my 
hearty  sorrow,  and  do  humbly  crave  pardon  of  Almighty 
God,  of  his  majesty,  and  of  this  congregation.' 

"  'And  whereas  in  the  said  sermon,  I  had  this  passage : 
"If  God's  ordinances  of  public  worship,  in  their  purity, 
be  the  glory  of  a  nation ;  then  it  follows,  that  they  who  go 
about  to  deprive  a  nation  of  them,  either  wholly  or  of  their 


PROSECUTIONS    FOR   CRIMES    AGAINST   RELIGION.         255 

purity,  go  about  to  make  the  nation  base  and  inglorious, 
&e."  *I  do  now,  upon  better  information,  find  that  many 
erroneous  and  dangerous  assertions  and  consequences,  un- 
fit to  be  here  expressed,  may  be  collected  and  inferred  from 
the  said  words.  I  do,  therefore,  hereby  publickly  recant 
all  the  said  words,  as  they  were  used  or  may  be  inferred, 
to  be  very  rashly  and  inconsiderately  uttered,  and  to  be 
very  undutiful  to  his  majesty.  I  do  humbly  refer  and  sub- 
mit myself  to  his  majesty's  clemency  and  gracious  accept- 
ance, for  the  interpretation  of  my  meaning;  and  I  am 
heartily  sorry,  and  do  humbly  ^rave  pardon,  that  words 
and  applications,  so  scandalous  and  dangerous  to  the  pres- 
ent state  of  the  church  of  England,  proceeded  from  me.' 
&c.  &c. 

"Mr.  Bernard  was  required  to  make  this  recantation 
publickly  before  the  congregation  where  he  had  delivered 
the  sermon;  but  he  absolutely  refused.  Though  in  his 
numerous  letters  and  petitions  to  Bishop  Laud,  he  pro- 
fessed his  sincere  sorrow  and  repentance  for  any  oversights 
and  unbecoming  expressions  in  his  sermon,  he  could  obtain 
no  relief.  He  must  either  recant  according  to  the  above 
form,  or  be  ruined."    He  died  in  prison. 

Connecticut  Statute — 1642. 

This  brings  us  to  the  time  of  the  first  law  concerning 
religion,  which  was  enacted  by  the  colonists  in  Connecti- 
cut. The  juridicial  record  prior  to  1642,  which  has  just 
been  reproduced,  has  two  important  bearings  upon  our 
present  problem. 

First:  It  is  in  part  from  this  record  that  we  must  ex- 
tract, if  we  cariy  the  common-law  meaning  of  the  words, 
blasphemy y  God,  God  the  Father,  the  Son,  and  the  Holy 
Ghost,  as  these  were  used  in  the  law  of  that  time,  and 
after.  Also:  the  meaning  of  the  Christian  Religion  and  of 
Holy  Scriptures  as  used  in  the  later  amendments. 

Secondly:  In  part  THIS  PEEVIOUS  RECORD  EX- 
HIBITS TO  US  JUST  WHAT  WAS  TO  BE  PRE- 
VENTED BY  OUR  CONSTITUTIONAL  GUARANTEES 
FOR  FREE  SPEECH  AND  FOR  EQUALITY  AND 
LIBERTY  IN  RELATION  TO  RELIGION. 


256  BLASPHEMY. 


By  the  folio  wing,  statute  of  1642  it  was  sought  to  pro- 
tect the  dignity  and  the  reputation  of  God,  (or  did  they 
think  he  also  had  vanity?)  Doubtless  these  pious  souls 
hoped  that  from  gratitude  the  omnipotent  one  might  be- 
stow upon  them  more  heavenly  rewards  for  thus  preserv- 
ing Him  against  that  change  in  the  worshiping  habits 
of  the  human  animal  which  is  the  product  of  criticism  and 
other  factors  of  normal  intellectual  development. 

"1.  If  any  man  after  legal  conviction,  shall  have  or  wor- 
ship any  other  God  but  the  Lord  God,  hee  shall  bee  put  to 
death.  '^Deut.  13.6-17.2— Exodus  22.20. 

"2.  If  any  man  or  woman  bee  a  Witch,  that  is  bath  or 
consolteth  with  a  familliar  spirritt,  they  shall  bee  put  to 
death.     Exodus  22.18.— Levit.  20.27.— Deut.  18.10,11. 

"3.  If  any  person  shall  blaspheme  the  name  of  God  the 
ffather,  Sonne  or  Holy  Ghost,  with  direct,  express,  pre- 
sumptnons  or  highhanded  blasphemy,  or  shall  curse  in  the 
like  manner,  hee  shall  bee  put  to  death.    Lev.  24.  15,  16." 


XV. 

PROSECUTIONS  FOR  CRIMES 
AGAINST  RELIGION. 

1643—1677. 

It  is  now  proposed  to  continue  the  narative  of  religious 
prosecutions  in  England  from  1642  to  1818,  the  date  of 
the  Connecticut  constitution  guaranteeing  religious  lib- 
erty, equality,  and  freedom  of  speech  and  press.  Again  it 
is  the  purpose  to  the  supply  data  for  a  more  thorough 
study  of  the  meaning  and  motives  of  blasphemy  laws.  It 
is  also  the  purpose  to  exhibit  the  evils  against  which  the 
constitutional  guarantees  were  directed.  This  will  en- 
able us  to  interpret  the  constitution  with  better  under- 
standing. 

Paul  Best— 1643.23 

Paul  Best  (1590-1657)  was  an  educated  gentleman,  a 
soldier  in  Poland  and  a  facile  controversialist.  While 
traveling  on  the  continent  "he  unhappily  disputed  with 
some  anti-trinitarians,  and  more  adhering  to  carnal  rea- 
son than  to  the  mysteries  of  faith,  he  was  drawn  to  the 
dangerous  opinion,  the  denial  of  our  Saviour's  divinity." 
Later  he  studied  unitarian  theology  in  Germany. 

Having  written  out  his  conclusions  on  the  doctrine  of 
the  Trinity  he  submitted  his  manuscript  to  the  Rev.  Roger 

"Rushworth,  John.    A  continuance  of  historical  collections  (book  6) 
part  IV.  V.  1,  p.  635.    July  24,  1647. 

Mysteries    discovered.      Or    a    mercurial    picture   pointing    out   the 
way  from  Babylon  to  the  holy  city,  for  the  food  of  all  such  as 
during  that  night  of  general  errour  and  apostasie  *  *  *  have  been 
so  long  misled  with  Rome's  hobgoblins.    By  me  Paul  Best  prisoner 
in  the  gatehouse,  Westminster.     Printed  in  the  yeare,  1647. 
Dictionary  of  national  biography,  v  .4,  pp.  417-418. 
Journal  of  the  House  of  Commons,  Mch.  2.  1645-6,  July  24,  1647, 
V.  5,  p.  257.    Also:  Sept.  8,  1647,  v.  5,  p.  296. 
Farrer,  James  Anson.     Books  condemned  to  be  burnt,  pp.  107-109. 
To  certain  noble  and  honorable  persons  of  the  House  of  Commons 
assembled  in  Parliament  fthe  petition  of  P.  B.  prisoner  in  the  Gate- 
house in  Westminster)    [Lond.  Aug.  13,  1646]. 

257 


258  BLASPHEMY. 


Ley  (a  supposed  friend),  "for  his  Judgment  and  advice 
only."  This  pious  parson  turned  the  manuscript  over  to 
the  authorities  as  blasphemous.  One  of  Best's  opponents 
represents  the  document  as  having  applied  "the  most  pro- 
fane epithets  to  the  doctrine  of  the  Trinity,'^  calling  it 
"a  mystery  of  iniquity,  a  three-headed  monster ,  a  figment, 
a  tradition  of  Rome/'  etc.  For  this  he  was  committed  to 
Gatehouse,  Feb.  14,  1644.  After  several  examinations,  on 
March  28,  1645,  the  House  of  Commons  voted  that  he  be 
hanged  for  this  offence.  The  dispute  about  the  lawfulness 
of  hanging  for  this  offence  was  not  settled  until  May  2, 
1648.  In  1647  he  published  a  pamphlet  from  jail,  in  his 
own  vindication  so  that  he  might  not  seem  "an  accessory 
to  the  false  accusation  of  those  that  blast  me  [Paul  Best], 
witk  the  most  odious  infamy  of  blasphemy  (to  deny  the 
heavenly  Trinity,  and  Jesus  Christ  to  be  our  blessed 
Saviour),  and  the  truth  of  the  sacred  Canonicall  Scrip- 
tures." 

Best  declared  that  he  could  not  by  his  best  friends  or 
those  appointed  by  parliament  secure  the  presentation  of  a 
petition  in  his  behalf,  although  he  had  written  and  printed 
100  of  them.  He  also  reported  that  some  had  declared  him 
"distracted  and  mad." 

From  this  pamphlet  it  appears  that  his  chief  item  of  dis- 
pute about  the  Trinity  is  verbal.  On  the  dispute  "whether 
the  Sonne  *  *  *  be  in  himself  coequal  to  the  King"  he 
contends,  depends  upon  an  adverb  meaning  "of  like  quality 
and  not  equality."  Now  he  proceeds  with  a  lot  of  meta- 
physical speculation  as  to  whether  "the  great  King"  in 
addition  to  unity  also  has  "his  supremacy  and  majority." 
He  expressed  his  own  conclusions,  omitting  bible  ref- 
erences, thus:  "I  believe  the  Father  to  be  God  himself 
*  *  *  and  that  the  Sonne  is  our  Messiah  *  *  whom  God 
made  Lord  and  Christ,  *  *  ♦  Prince  and  Saviourc  ♦  ♦  ♦ 
And  that  the  holy  spirit  is  the  very  power  of  God  or  the 
Father  God  essentially,  the  Sonne  vicentially  the  holy 
Spirit  potentially  or  the  Father  God  above  all,  ♦  ♦  ♦  the 
Son  of  God  with  us,  *  *  *  the  holy  Spirit  God  within 
us.  *  *  *  But  for  the  Son  to  be  coequal  to  the  Father,  or 
the  holy  Spirit  a  distinct  coequall  person,  I  cannot  finde, 


PROSECUTIONS    FOR   CRIMES   AGAINST   RELIGION.         259 

and  I  believe  that  these  three  are  one  or  agree  and  conspire 
in  the  substance  of  the  same  truth  to  salvation,"  and  more 
such. 

On  March  2,  1645  the  House  of  Commons  ordered  that 
"all  the  lawyers  of  the  House  be  enjoined  to  attend  the 
Committee  of  plundered  Ministers  tomorrow  in  the  After- 
noon concerning  the  ordinance  for  punishing  the  Blas- 
phemies of  Paul  Best."  On  September  8,  1647,  Paul  Best 
is  again  mentioned  in  the  Parliamentary  proceedings,  but 
nothing  is  done.  He  had  been  in  jail  since  February,  1644. 
It  is  said  that  at  the  end  of  1647  he  was  quietly  released, 
no  one  knows  how.  It  is  surmised  that  Cromwell  may  have 
interfered,  perhaps  thinking  he  had  suffered  enough. 

Here  we  have  a  case  where  the  mere  metaphysical  specu- 
lation which  did  not  deny  the  trinity  but  in  the  gentlest 
of  language  defended  an  unorthodox  conception  of  the 
trinity,  was  held  to  be  blasphemy.  This  is  the  common 
law  adjudged  and  applied  soon  after  the  passage  of  the 
colonial  statute  against  blasphemy.  What  attitude  to- 
ward the  trinity  is  now  penalized?  Is  the  catholic  con- 
ception blasphemous,  or  the  presbyterian?  Are  all  uni- 
tarians criminals?  If  not  where  has  the  common  law 
been  amended  by  our  statutes?  Is  this  statute  with  this 
common-law  interpretation  constitutional? 

Rev.  Hansebd  Knolles — 1644.^* 

Hanserd  Knolles  ( 1599-1691 )  was  a  Baptist  divine.  He 
left  England  for  America  about  1637,  to  escape  the  High 
Commission  Court.  The  exact  nature  of  his  offence  is 
not  known.  A  warrant  from  that  court  caused  his  arrest 
in  Boston  but  he  was  soon  discharged.  Cotton  Mather 
enumerates  him  among  "godly  anabaptists."  In  Decem- 
ber, 1641,  he  returned  to  London,  the  revolutionary  spirit 
probably  making  it  safer  for  him.  Did  "blasphemy"  have 
a  different  meaning  in  New  England  than  in  old  England? 

His  sermons  were  twice  the  subject  of  parliamentary  in- 
quiry, but  he  seems  to  have  escaped  without  punishment 

"Commons  Journal,  v.  2.  1642-1644,  p.  585.     Dictionary  of  national 
biography,  v.  31,  pp.  279-280. 


260  BLASPHEMY. 

or  perhaps  without  a  final  decision.     The  record  shows  that 
he  "did  preach  openly"  as  follows : 

"Retaining  the  baptism  of  children  was  one  of  the 
greatest  sins  in  the  land.  ♦  *  *  One  Mr.  Simson  once 
prohibited  by  the  House  [of  Commons]  to  preach,  .  .  . 
said  that  Jesus  Christ  is  in  Hogs  and  Dogs  or  sheep  yea, 
that  the  same  Spirit  that  ruleth  in  the  Children  of  God 
ruleth  in  the  Children  of  Disobedience:  and  diverse  ab- 
ominable Doctrines  .  .  .  Mrs.  Randall,  he  holds.  Though 
a  Woman  (though  wicked)  if  married  to  one  that  is 
godly,  that  she  is  thereby  snactified.  These  things  will 
admit  of  no  longer  suff ranee."  So  Mr.  Marshall  informed 
the  House.  Thereupon  it  was  resolved  that  it  be  referred 
to  a  committee  "to  examine  them  ui>on  the  informations 
and  to  secure  them  by  imprisonment  if  they  shall  see 
cause." 

This  condition  suggests  that  it  was  a  matter  of  doubt  not 
determinable  by  statutory  criteria  of  blasphemy  whether 
such  language  was  criminal  or  not  Manifestly  a  different 
whim  or  desire  could  have  found  this  language  sufficient 
to  sustain  a  conviction  especially  in  view  of  the  fact  that 
this  man's  sermons  had  actually  been  instrumental  in 
creating  "riots  and  tumults."  The  offending  doctrine 
seems  to  be  that  of  a  "purposeful  divine  immanence  in 
the  universe"  which  opinion  is  today  entertained  by  some 
of  the  best  and  wisest  of  men.  Is  it  a  crime  to  express 
such  a  view  under  the  Connecticut  blasphemy  statute? 
Is  a  statute  constitutional  which  leaves  this  in  doubt? 
Could  a  law  be  constitutional  which  penalized  these  opin- 
ions? 

King  James— 1644.25 

"King  James'  famous  'Book  of  Sports,'  published  in 
1618  gave  great  offense  to  the  godly  puritans.  This  work 
was  issued  on  the  advice  of  Morton,  bishop  of  Chester; 
and  was  occasioned  by  the  dull  visit  of  King  James  to 
Lancashire.  The  people  did  not  make  holiday  enough 
on  Sundays  for  the  royal  taste.  The  i)eople  are  therefore 
enjoined  to  practise  dancing,  archery,  leaping,  vaulting, 

"Vickers,  Robert  H.  Martyrdoms  of  literature,  p.  377-8. 


PROSECUTIONS   FOR   CRIMES   AGAINST   RELIGION.         261 

whitsunales,  morris  dances,  and  others.  The  baiting  of 
animals  being  at  all  time®  prohibited  to  the  meaner  sort 
of  people  and  playing  at  bowls  were  also  forbidden.  Some 
time  afterward  recreations  were  forbidden  until  after  eve- 
ning prayer;  and  those  not  godly  enough  to  attend  prayers; 
either  morning  or  evening  were  excommunicated  from  the 
baitings,  and  ^incapable  of  such  his  royal  indulgence  at 
all,'  This  foolish  production  was  ordered  to  be  read  in 
all  churches  throughout  England.  The  lengthened  face, 
and  ^rigid  feature'  of  the  puritans  relaxed  at  the  con- 
signment of  the  'Book  of  Sports'  to  the  flames.  Chief 
Justice  Richardson  had  published  an  order  forbidding  the 
observance  of  village  feasts  and  wakes  on  Sundays.  The 
king  and  clergy  resented  this  interference  with  ecclesias- 
tical authority,  and  the  Book  of  Sports  saw  the  light.  The 
Chief  Justice  w^as  summoned  before  the  Council  and  *re- 
ceived  such  a  rattle,'  that  as  he  declared  'he  had  almost 
been  choked  by  a  pair  of  lawn  sleeves.'  At  length  when 
puritan  influence  became  supreme  in  1644,  both  houses 
adopted  a  resolution  ordering  the  Book  to  be  burned  by  the 
justices  of  the  peace  in  Cheapside,  and  at  the  Exchange. 
May  10  the  Sheriffs  of  London  and  Middlesex  were  gravely 
required  to  see  the  order  carried  into  effect.  All  persons 
possessing  copies  were  ordered  to  surrender  them.  All 
that  could  be  seized  were  destroyed." 

John  Archer — 1645.^^ 

No  biography  of  John  Archer  was  found.  He  appears 
to  have  been  a  preacher  at  Allhallows,  Lombard  Street, 
and  the  author  of  some  books.  After  his  death  some  ad- 
mirers published  a  manuscript  founded  on  the  text  of  John 
14 :  1  to  4,  which  book  was  entitled  as  follows :  "Comfort 
for  believers  about  their  sinnes  and  troubles  in  a  treatise 

"The  personal  reign  of  Christ  upon  Earth.  In  a  treatise  wherein 
is  proved  that  Jesus  Christ  *  *  *  shall  visibly  possess  a  monarchia- 
call  state  and  kingdome  in  this  world.  London,  1642. 
A  short  declaration  of  the  Assembly  *  *  *  by  way  of  detestation 
of  this  abominable  *  *  *  opinion  *  *  *  mentioned  in  a  book  intituled, 
Comfort  for  believers  about  their  sinnes  and  troubles  *  *  *  1645. 
Comfort  for  'believers  about  their  sinnes  and  troubles,  a  sermon, 
[on  John  XIV,  1-4]  London,  1645. 
Farrer,  James  Anson,  Books  condemned  to  be  burnt,  pp.  106-107. 


262  BLASPHEMY. 


shewing  that  true  believers,  how  weake  soever  in  faith, 
should  not  be  opprest,  or  perplext  in  lieart,  by  anything 
whatever  befalls  them;  either  in  sinne  or  affliction.  To- 
gether with  divers  other  comfortable  observations;  gathered 
out  of  that  counsell,  given  by  Christ  to  his  apostles  and 
in  them  to  all  believers.      Lond.  1645." 

Parliament  condemned  the  book  and  directed  a  commit- 
tee of  divines  to  counteract  its  evil  influence.  The  result 
of  their  deliberations  was  published  under  the  title  follow- 
ing: "A  short  declaration  of  the  assembly  of  divines  by 
way  of  detestation  of  this  abominable  and  blasphemous 
opinion,  that  God  is,  and  hath  an  hand  in,  and  is  the 
author  of  the  sinfulnesses  of  his  people;  mentioned  in  a 
book  intituled  ^Comfort  for  believers,  about  their  sins  and 
troubles'  together  with  the  Order  of  both  Houses  of  Par- 
liament for  the  burning  of  the  said  Book  by  the  hand  of 
the  common  hangman.     London,  July  25,  1645." 

This  parliamentary  committee  of  clergymen  express 
themselves  partly  as  follows:  "As  it  hath  pleased  the 
Honorable  Houses  of  Parliament,  out  of  their  pious  care 
for  preserving  Religion  pure,  from  the  leaven  6t  perni- 
cious and  Blasphemous  Doctrine,  to  order  the  burning  of 
this  most  scandalous  Book ;  so  have  they  further  appointed 
us  to  declare  the  abominableness  thereof  unto  the  people. 
And  we  doubt  not  but  that  every  good  Christian,  as  soon  as 
he  shall  hear  the  scope  and  contents  of  it,  will,  together 
with  us,  detest  the  horrid  Blasphemie  therein  asserted,  and 
acknowledge  the  godly  zeal,  wisdom  and  justice  of  Au- 
thority in  commanding  it,  as  an  execrable  thing  to  be  taken 
away."  Thus  begins  the  "short  declaration  of  the  as- 
sembly of  divines." 

Archer  seems  to  have  believed  in  predestination  and 
foreordination,  and  that  apparently  was  the  whole  of  his 
offending.  Our  pious  committee  characterized  it  as  a 
^^rnost  vile  and  Blasphemous  assertion"  which  Archer 
"openly  in  express  Termes,  and  in  a  very  foul  manner 
propounded,  maintained  and  purposely  at  large  prosecuted 
to  wit: 

\       "\    "a.  That  God  is,  and  hath  an  hand  in,  and  is  the  Author 
of  the  sinfulnesse  of  his  people. 


■J-^- 


FROSECUTIONS    FOR    CRIMES    AGAINST   RELIGION.         263 

"b.  That  he  is  the  Author,  not  of  those  actions  alone, 
in  and  with  which  sin  is,  but  of  the  very  Pravity  Ataxy, 
Anomy,  Irregularity  and  sinfulnesse  itself,  which  is  in 
them. 

"c.  That  God  hath  more  hand  in  men's  sinfulnesse  then 
they  themselves. 

"d.  That  the  Creature's  sin  doth  produce  the  greatest 
good,  either  in  God's  glory,  or  in  the  Creature's  happinesse, 
as  the  next  cause  thereof  and  that  all  that  good  is  onely 
brought  about  by  sin. 

"e.  That  it  is  as  Incongruous  and  Inconvenient  to  make 
God  the  Author  of  the  Afflictions  of  the  Creature,  as  of  the 
sins. 

"f.  That  by  sins  Believers  are  as  much  nurtured  and 
fitted  for  Heaven  as  by  anything  else. 

"g.  That  God  fits  Believers  for  service  in  this  world,  by 
leading  them  into  sins. 

"h.  That  no  course  is  so  full,  to  remove  or  prevent  sin- 
full  or  pernicious  troubles  for  sin,  as  this  looking  on 
God  the  Author  of  it  and  the  good  which  he  brings  about 
by  it;  which,  because  it  is  rarely  done  by  Believers,  and 
indeed  hardly  known,  he  therefore  professeth  to  have  him- 
self enlarged  upon  it"  (p.  5-6). 

I  have  compared  these  charges  with  the  original  book  of 
Archer.  Thus  it  appears  that  the  asembly  of  divines  are 
not  at  all  copying  Archers  langiiage  but  state  in  their 
own  language  what  they  hope  to  be  the  logical  import  of 
the  words  used  by  Archer.  The  result  is  hardly  fair  to 
the  author  because  their  blunt  statement  was  meant  to 
be  a  reduction  to  absurdity,  of  that  which  Archer  had 
really  contended  for.  Furthermore  they  do  not  even  at- 
tempt to  answer  his  careful  argument,  which  was  based 
upon  holy  writ.  Let  me  illustrate  the  unfairness  of  the 
committee's  statement  of  Archer's  contentions.  The 
divines  make  him  say  "That  by  sins  Believers  are  as  much 
nurtured  and  fitted  for  Heaven  by  their  various  sinning 
heere:  Not  only  as  Sinnes  make  way  for  Afflictions,  but 
also  as  they  make  way  for  God's  free  Grace,  Christ's 
mercy,  and  the  exercise  of  diverse  Graces,  etc." 

They  resorted  to  the  same  tactics  that  other  judges 


264  BLASPHEMY. 


sometimes  fall  into.  That  is,  a  seeming  novel  conclusion, 
or  one  that  does  violence  to  some  conventional  sentimental- 
ism  is  stated  in  complete  dissociation  from  the  reasons 
which  might  prove  plausible,  if  not  convincing.  Thus 
stated  it  seems  absurd  to  the  unenlightened  and  the  judge 
also  seems  quite  justified  in  his  condemnation,  whereas, 
if  the  justifying  argument  had  been  stated  at  its  best  the 
stupid  crowd  might  have  become  enlightened  and  the 
judge's  conclusion  would  not  have  looked  so  well  in  the 
eyes  of  intelligent  persons. 

The  main  scope  of  Archer's  book  is  alleged  to  be  to 
persuade  men  "Not  to  be  oppressed  or  perplexed  in  heart, 
for  anything  whatsoever  befalls  them  either  in  sin  or  af- 
fliction." For  this  Archer  had  quoted  Jesus,  "Let  not 
your  heart  be  troubled."  In  such  doctrine®  was  "both 
danger  and  scandall  *  *  ♦  exceeding  injurious  to  the 
Gospel  of  Christ,  and  to  the  power  of  godlinesse."  The 
above  characterization  of  this  doctrine,  of  course,  has  some 
color  of  truth,  and  yet  in  effect  is  false.  It  was  called 
blasphemy  and  doubtless  Archer  would  have  been  severely 
punished,  were  he  still  living  when  the  matter  came  to 
the  attention  of  parliament. 

In  that  benighted  age  it  was  thought  better  to  drive 
people  insane  by  artificial  fears  than  to  incur  the  danger 
to  "morality"  which  comes  from  knowing  the  truth.  Now 
a  large  school  of  psychiatrists  restore  mentally  sick  per- 
sons by  relieving  them  of  artificial  fears.  Is  an  American 
court  in  1917  going  to  say  that  we  must  still  drive  people 
insane  to  protect  God  and  moral  sentimentalism?  Will 
it  say  that  a  statute  with  such  an  object  directed  against 
blasphemy  is  constitutional? 

A  single  passage  will  convey  the  drift  of  the  seventy-six 
pages  devoted  to  this  difficult  problem:  "Who  hinted  to 
God,  or  gave  advice  by  counsel  to  Him,  to  let  the  creature 
sin?  Did  any  necessity,  arising  upon  the  creature's  being, 
enforce  it  that  sin  must  be?  Could  not  God  have  hindered 
sin,  if  He  would?  Might  He  not  have  kept  man  from 
sinning,  as  He  did  some  of  the  angels?  Therefore,  it  was 
His  device  and  plot  before  the  creature  was  that  there 
should  be  sin.  *  *  *  It  is  by  sin  that  most  of  God's 


PROSECUTIONS   FOR   CRIMES   AGAINST   RELIGION.        265 

glory  in  the  discovery  of  His  attributes  doth  arise.  ♦  ♦  ♦ 
Therefore  certainly  it  limits  Him  much  to  bring  in  sin  by 
a  contingent  accident,  merely  from  the  creature,  and  to 
deny  God  a  hand  and  will  in  its  being  and  bringing  forth." 

Are  such  sentiments  as  these  blasphemous  because  we 
must  resort  to  the  common  law  for  a  definition  of  this 
crime?  Has  the  legislature  now  power  to  penalize  such 
opinions? 

John  Biddli>~1647-8.27 

The  Rev.  John  Biddle  (1615-1662)  was  a  precocious 
youth  and  became  the  "father  of  Unitarianism."  He  was 
an  Oxford  graduate,  and  later  became  a  teacher.  With 
Presbyterian  ascendency  he  was  deemed  heo'etical  and 
dangerous  and  summoned  before  the  magistrate.  After 
interrogation  a  form  of  confession  under  three  heads  was 
submitted  for  his  signature.  He  signed  it  with  modi- 
fications, in  May  1654.  This  being  unsatisfactory  to  the 
authorities,  he  made  another  to  avoid  imprisonment,  and 
he  pursued  his  studies  and  literary  work.  In  this  "he 
confessed,  that  there  were  three  in  the  divine  essense  com- 

"  Twelve  arguments  drawn  out  of  the  scripture  wherein  the  com- 
monly received  opinion  touching  the  Deity  of  the  Holy  Spirit  is 
clearly  and  fully  refuted.  To  which  is  prefixed  a  letter  tending  to 
the  same  purpose  written  to  a  member  of  the  honorable  House  of 
Commons.  And  to  which  is  enjoyed  an  exposition  of  five  principal 
passages  and  scripture  alleged  by  the  adversaries  to  prove  the 
Deity  of  the  Holy  Spirit;  together  with  an  answer  to  their  grand 
objection  touching  the  supposed  omnipresence  of  the  Holy  Spirit. 
By  John  Biddle,  Master  of  Arts,  printed  in  the  yeare  1647. 
God's  glory  vindicated  and  blasphemy  confuted  being  a  brief  and 
plain  answer  to  that  blasphemous  book  intituled,  Twelve  arguments 
against  the  deity  of  the  Holy  Ghost,  written  by  [Theo.  (John) 
Biddle]  Master  of  Arts,  and  now  burnt  by  special  command  from 
Parliament  on  Wednesday  the  eight  of  this  present  September,  by 
the  common  hangman  *  *  *  London,  1647,  12  p. 
Confession  of  Faith  touching  the  Holy  Trinity  according  to  Scrip- 
ture.   Lond.  1648. 

The  Testimonies  of  Irenaeus,  Justin  Martyr,  Tertullian,  Nbvatianus, 
Theophilus,  Origin  (who  lived  in  the  two  centuries  after  Christ 
was  born,  or  thereabouts),  as  also,  Arnobius,  Lactantius,  &c.,  con- 
cerning that  one  God  and  the  persons  of  the  Trinity,  with  observa- 
tions on  the  same.     Lond.  1650. 

A  two  fold  catechism,  the  one  simply  called  a  scripture  catechism, 
the  other  a  brief  scripture  catechism  for  children,  1654. 
Dictionary  of  national  biography,  v.  5,   pp.   13-16. 
Reese,  Richard.     Compendious  martyrology,  v.  3,  pp.  468-471. 
Two   letters   of   Mr.   John    Biddle   late   prisoner   in    Newgate    but 
now  hurried  away  to  some  remote  island.    One  to  the  Lord  Pro- 
tector, the  other  to  the  Lord  President  Lawrence.    London,  1655. 


266  BLASPHEMY. 


monly  called  persons."  In  1647  "having  made  up  his  mind 
more  fully  upon  this  subject  [he]  drew  up  his  thoughts 
upon  a  paper  entitled  ^Twelve  Arguments'  etc." 

A  treacherous  "friend"  stole  the  manuscript  and  sub- 
mitted it  to  the  parliamentary  commissioners,  and  the 
magistrates  of  Gloucester.  The  blasphemer  was  forthwith 
ordered  to  jail  by  the  magistrates.  Later  he  was  bailed 
and  given  opportunity  to  repent  and  correct  his  errors, 
with  some  assistance  from  Archbishop  Usher.  Failing  in 
this  he  was  cited  before  a  parliamentary  committee. 

IJiddle  frankly  avowed  his  disbelief  in  the  Divinity  of 
the  Holy  Ghost  and  expressed  a  readiness  to  debate  his 
opinions  with  any  theologian  whom  they  might  appoint. 
Now  lUddle  published  "Twelve  questions  or  arguments 
drawn  out  of  Scripture,  wherein  the  commonly  received 
Opinion  touching  the  Deity  of  the  Holy  Spirit  is  clearly 
and  fully  refuted,"  1647.  Prefixed  to  this  was  a  letter 
to  Sir  Henry  Vane,  who  was  a  friendly  member  of  the 
committee.  At  the  end  was  "An  exposition  of  five  prin- 
cipal Passages  of  the  Scriptures  alleged  by  the  Ad- 
versaries to  prove  the  Deity  of  the  Holy  Ghost."  Called 
to  tlie  bar  of  the  House,  he  acknowledged  responsibility  for 
the  book,  was  remanded  to  prison,  and  on  September  6, 
1647,  the  "Twelve  Arguments,"  etc.,  was  ordered  to  be 
burnt  by  the  hangman,  as  being  blasphemous.  Biddle  re- 
mained under  restraint  for  five  years.  In  the  meantime 
the  matter  was  referred  to  the  assembly  of  divines. 

Journal   of   House  of   Commons,   Sept.   8,   1647.     See:   v,   5:   293, 
296;  7:  400,  416.     See  also:  notes  under  Racovian  catechism. 
Neal,  Daniel.     History  of  the  puritans,  v.  4,  p.  122. 
Goodwin,  Commonwealth,  v.  3,  pp.  510-513. 
Register  and  Chronicle,  p.  761. 

The  faith  of  one  God,  who  is  only  the  father,  and  of  one  mediator 
between  God  and  man,  who  is  only  the  man  Christ  Jesus;  and 
of  one  the  gift,  and  sent  of  God,  asserted  and  defended  in  several 
tracts  contained  in  this  volume.  London,  1691. 
Ditchfield,  P.  H.  Books  fatal  to  their  authors,  pp.  55-56. 
Toulmin,  Jushua.  Review  of  the  life  character  and  writings  of 
Rev.  John  Biddle.     London,   1789. 

The  spirit  of  persecution  again  broken  loose,  by  an  attempt  to  put 
in  execution  against  Mr.  J.  Biddle  an  abrogated  ordinance  of  the 
Lords  and  Commons  for  punishing  blasphemies  and  heresies.  To- 
gether with  a  full  narrative  of  the  whole  proceedings  upon  that 
ordinance  against  the  said  Mr.  J.  B.  and  Mr.  W.  Kiffen.  Lond. 
[July  26]  1655. 


PROSECUTIONS    FOR   CRIMES    AGAINST   RELIGION.         267 

The  book  was  republished  the  same  year,  and  some  an- 
swers to  the  argument  also  appeared.  The  Presbyterians 
were  now  in  full  control.  Upon  the  appearance  of  Biddle's 
book  (1648)  they  secured  the  passage  of  an  ordinance 
which  among  other  things  inflicted  the  death  penalty  upon 
those  who  denied  the  doctrine  of  the  Trinity.  "But  the 
act  was  directed  to  so  many  objects,  and  so  various,  and 
meeting  with  considerable  opposition  of  the  army,  and 
because  there  was  a  dissention  in  the  parliament  itself,  it 
lay  unregarded." 

Notwithstanding,  Biddle  immediately  published  his 
'^Confession  of  Faith  touching  the  Holy  Trinity  according 
to  Scripture."  Soon  after  also  appeared  his  "The  Testi- 
monies of  Irenaeus,  Justin  Martyr,  Tertullian,  Novatianus, 
Theophilus,  Origin  (who  lived  in  the  two  centuries  after 
Christ  was  bom,  or  thereabouts) ,  as  also  Amobius,  liactan- 
tius,  etc.,  concerning  that  One  God  and  the  persons  of  the 
Trinity,  with  observations  on  the  same." 

Upon  the  publication  of  the  "Testimonies"  the  assembly 
of  divines  sitting  at  Westminster  made  their  appeal  to 
the  parliament  for  Biddle^s  death.  Parliament  did  not 
confirm  the  divines'  appeal.  He  never  was  brought  to  trial 
and  friends  again  secured  his  release  on  bail.  Biddle  soon 
became  a  preacher.  Tidings  of  this  having  been  con- 
veyed to  the  Lord  President  Bradshaw,  Biddle  was  once 
more  imprisoned.  Thomas  Firmin  appealed  to  Crom- 
well for  the  release  from  Newgate.  Bishop  Kennet  thus 
reports  the  Protector's  answer:  "You  curl-pate  boy,  do 
you  think  I'll  show  any  favour  to  a  man  who  denied  his 
Saviour,  and  disturbs  the  government?" 

On  February  10,  1652  parliament  passed  a  general  act 
of  oblivion  which  restored  Biddle  and  others  to  liberty. 
Again  he  published  in  England  and  Holland  some  Socin- 
ian  books  and  soon  began  to  preach. 

In  1654  he  was  again  arrested,  now  for  publishing  "A 
Two-fold  Catechism,  the  one  simply  called  A  Scripture 
Catechism,  the  other  A  Brief  Scripture  Catechism  for 
Children."  Early  in  1654  the  author  was  arraigned  be- 
fore the  bar  of  parliament,  and  refused  to  answer  incrim- 
inating questions.     Parliament  voted  that  thi»  book  con- 


2G8  BLASPHEMY. 


tained  many  impious  and  blasphemous  opinions  against 
the  Deity  of  the  Holy  Ghost.  After  debate  and  resolu- 
tion he  was  "committed  a  close  prisoner  to  the  Gatehouse 
*  *  *  and  all  the  copies  of  his  books  which  could  be  found 
were  ordered  burnt."  After  six  months,  the  protector 
dissolving  the  parliament,  he  obtained  his  liberty  at  the 
court  of  the  Upper  King's  Bench,  May  28,  1655. 

Within  a  month  he  had  a  debate  with  one  John  Griffen, 
He  was  indicted  and  arrested.  Cromwell  soon  after  in- 
terposed his  authority  and  stopped  the  proceedings.  An 
entanglement  ensued,  as  the  upshot  of  which  Biddle  was 
"banished  to  the  Scilly  Islands,  October  5,  1655,  to  remain 
in  close  custody  in  the  Castle  of  St.  Mary's  during  his 
life." 

On  the  day  previous  there  came  out  "Two  Letters  of 
Mr.  John  Biddle,  late  Prisoner  in  Newgate  but  now 
hurried  away  to  some  remote  Island.  One  to  the  Lord 
Protector,  the  other  to  the  Lord  President  Lawrence,  1655." 
He  expressly  separates  himself  from  Socinus  as  to  the 
personality  of  the  Holy  Ghost.  The  Protector  allowed 
him  100  crowns  per  annum  but  he  remained  in  jail  until 
1658.  Many  influential  friends  interceded  for  his  libera- 
tion, but  in  vain.  At  length  he  was  conveyed  by  a  writ  of 
habeas  corpus  to  the  Upper  Bench  at  Westminster,  and 
no  accuser  appearing,  he  was  ordered  discharged  by  Lord 
Chief  Justice  Glynn. 

Again  he  resumed  preaching  and  teaching,  continuing 
until  the  death  of  Cromwell,  September  following.  Be- 
fore the  parliament  summoned  by  Eichard  Cromwell  met, 
Biddle  was  advised  to  retire  into  the  country  "by  it  is 
believed,  the  Lord  Chief  Justice.  It  was  a  prudent  step." 
A  parliamentary  committee  was  appointed  to  examine  into 
the  state  of  religion,  and  one  of  its  first  acts  was  to  in- 
stitute an  inquiry  into  Biddle's  liberation.  The  matter 
subsided  and  he  returned  to  London. 

In  June,  1662,  he  was  again  arrested  "with  a  few  of 
his  friends  who  were  assembled  for  divine  worship.  All 
were  sent  to  prison  without  bail."  Biddle  was  found 
guilty  of  being  the  author  of  another  blasphemous  book, 
fined  100£s.  and  to  stand  committed  till  paid.     He  died 


TROSECUTIONS    FOR    CRIMES    AGAINST    RELIGION.         269 

in  jail,  having  spent  all  told,  over  seven  years  in  confine- 
ment. » 

His  fatal  book  was  entitled  "The  Faith  of  one  God, 
who  is  only  the  Father,  and  of  one  Mediator  between  God 
and  man,  who  is  only  the  man  Christ  Jesus;  and  of  one 
Holy  Spirit,  the  gift,  and  sent  of  God,  asserted  and  de- 
fended in  several  tracts  contained  in  this  volume"  (Lon- 
don, 1691 ) .     This  work  was  also  publicly  burnt. 

In  all  Biddle's  troubles,  the  gist  of  the  offence  was  a 
mere  difference  of  opinion  about  theology.  In  psychologic 
terms  this  meant  that  for  him  the  words  "Holy  Trinity" 
symbolized  a  different  mental  content  than  was  enter- 
tained by  his  orthodox  neighbor.  Here  as  in  several  other 
cases,  the  mere  unorthodox  product  of  dignified  meta- 
physical speculation,  even  though  founded  upon  the 
Bible,  was  held  to  be  blasphemous. 

Laurance  Clarkson  (or  Claxton) — 1645-1650.28 
Laurance  Clarkson,  later  calling  himself  Claxton, 
(1615-1667)  was  one  of  those  restless  religious  spirits  who 
was  in  turn  a  member  of  nearly  all  the  dissenting  sects. 
He  died  a  Muggletonian.  He  was  baptised  as  an  ana- 
baptist in  Nov.  1644  and  in  January,  1645,  was  cast  into 
prison  at  Bury  St.  Edmunds.  He  was  released  July  15, 
1645.  The  only  clue  as  to  the  cause  of  his  confinement  is 
found  in  the  condition  of  his  release  which  was  by  formal- 
ly renouncing  the  practice  of  "dipping."  From  this  we 
infer  that  it  was  his  opinion  upon  baptism,  or  the  prac- 
tices in  accordance  with  that  opinion  that  were  the  basis 
of  the  prosecution. 

Later  he  published  what  the  House  of  Commons  desig- 
nated as  an  "impious  and  blasphemous"  tract  called,  "The 
single  eye,  all  light  no  darkness,  or  light  and  darkness 
one."  (1650,  4to.  16  pp.)  For  this  he  was  condemned 
by  the  House  of  Commons  to  be  sent  to  prison   for  one 

"^The  single  eye,  all  light  no  darkness,  or  light  and  darkness  one, 
1650.     16pp. 

Dictionary  of  national  biography,  v.  II,  pp.  5-6;  House  of  Com- 
mons Journal,  v.  VI,  pp.  427,  474-475.  Laurance  Clarkson,  27th  Sept., 
1650 

A  Paradisical  dialogue  betwixt  faith  and  reason,  1660,  said  to 
be  autobiographical  of  Claxton,  was  not  located. 


270  BLASPHEMY. 


month  and  from  that  time  to  be  banished  out  of  the  com- 
monwealth and  the  territories  thereof,  and  not  to  return 
upon  pain  of  death.  The  book  itself  was  burned  by  the 
common  hangman  and  all  persons  ordered  to  deliver  all 
copies  thereof  up  to  the  nearest  Justice  of  the  Peace. 

Are  baptist  opinions  now  dangerous  and  blasphemous, 
because  they  were  generally  so  considered  at  common-law? 
The  statute  has  not  altered  the  crime  since  then. 

William  Erbery— 1646.2» 

William  Erbery  (1604-1654)  in  1634  was  pronounced  a 
"schismatical  and  dangerous  preacher"  by  Bishop  Laud, 
and  "after  a  judical  admonition"  from  the  court  of  high 
commission,  he  was  forced  to  resign  his  vicarage.  In  1638 
he  became  an  itinerant  preacher.  He  "declared  himself 
for  general  redemption;  that  no  man  was  punished,  for 
Adam's  sin  should  be  imputed  to  no  man.  He  said  also 
that  within  a  while  God  would  raise  up  apostolical  men, 
who  should  be  extraordinary,  to  preach  the  gospel;  and 
after  that  shall  be  the  fall  of  Kome.  He  spake  against 
gathering  churches,  the  anabaptists'  rebaptising,  and  said 
men  ought  to  wait  for  the  coming  of  the  Spirit,  as  the 
apostles  did.  ^Like  as  in  the  wilderness  they  had  honey 
and  manna,  but  not  circumcision  and  the  passover  till 
they  came  into  Canaan,  so  now  we  may  have  many  sweet 
things,  conference  and  prayer,  but  not  a  ministry  and 
sacraments.  And  then,  after  the  fall  of  Kome,  there  will 
be  new  heavens,  and  a  new  earth ;  then  shall  be  new  Jeru- 
salem ;  and  then  shall  the  church  be  one,  one  street  in  that 
city  and  no  more'."  He  declared  "that  Adam's  sin  could 
not  be  imputed  to  Adam  and  denied  the  divinity  of  Christ." 

In  the  parliamentary  army  Erbery  became  a  chaplain 
and  after  the  surrender  of  Oxford,  1646,  he  continued  to 
preach  these  doctrines,  and  disputed  with  presbyterians. 

"Although  very  popular  with  the  soldiers,  he  was  about 
this  time  on  account  of  his  Socinian  opinions  directed  to 

**  Dictionary  of  national  biography,  vol.  17,  pp.  383-5. 
The  testimony  of  W.  E.  left  upon  record   for  the  saints  of  suc- 
ceeding ages.     Being  a  collection  of  the  writings  of  the  aforesaid 
author  *  *  *  Whereunto  is  added  the  honest  heretic,  being  his  trial 
at  Westminster,  a  piece  never  printed  before.    London,  1658. 


PROSECUTIONS    FOB    CRIMES    AGAINST   RELIGION.         271 

leave  Oxford,  when  he  went  to  London  *  *  and  preached' 
*  *  *until  his  tenets  caused  him  to  be  summoned  before 
the  committee  for  plundered  ministers  at  Westminster  in 
1652,  when  he  made  orthodox  profession  of  faith.  The 
committee  refused  to  accept  this  as  genuine,  and  are  be- 
lieved to  have  committed  him  to  prison."  According  to 
Wood,  "he  vented  his  blasphemies  in  several  places." 

"His  widow,  Dorcas,  became  a  quakeress,  and  in  1656 
was  apprehended  for  paying  divine  honours  at  Bristol  to 
James  Nayler,  w^hen  she  alleged  that  Nayler  was  the  son 
of  God  and  had  raised  her  to  life  after  she  had  been  dead 
two  days.  She  was  liberated  after  a  few  days  confine- 
ment." Here  there  seems  to  have  been  more  intelligence 
used  than  in  the  trial  of  Nayler  himself,  though  of  course 
the  letter  of  the  law  was  violated. 

Are  all  universalists  now  to  be  punished  under  the 
statute  against  blasphemy  because  that  doctrine  was  of- 
ficially declared  "dangerous"  and  "blasphemous"  and  be- 
cause the  colonists  undoubtedly  considered  it  both?  Was 
it  not  to  preclude  the  punishment  of  all  blasphemous 
opinions,  only  speculatively  "dangerous"  that  intellectual 
liberty  was  guaranteed  in  our  constitutions? 

Rev.  Abiezer  Coppe — 1650.^® 

Abiezer  Coppe  (1619-1672)  is  described  as  a  grossly  im- 
moral student  who  left  the  university  without  a  degree  at 
the  opening  of  the  civil  wars.  Also  as  a  fanatic,  first  a 
Presbyterian  and  then  an  anabaptist  who  was  a  "preacher 
and  leading  man"  of  that  sect  Then  he  became  a  ranter 
and  is  said  to  have  preached  stark  naked.  There  is  much 
to  show  him  a  mad  man.  He  now  jointed  a  sect  "of  the 
worst  type  known  among  themselves  as  *My  own  flesh.' " 
Some  associate  him  with  Muggleton,  others  with  Law* 
rence  Claxton  or  Clarkson,  mentioned  hereinbefore. 

In  1649  he  published:  "A  Fiery  Flying  Roll:  a  word 
from  the  Lord  to  all  the  great  ones  of  the  earth  whom  this 
may  concern :  being  the  last  warning  piece  at  all  the  dread- 

"Vickers,  Robert  H.  Martyrdoms  of  literature,  p.  377. 
Dictionary  of  national  biography,  v.   12,  p.   190. 
Farrer,  James  Anson,  Books  condemned  to  be  burnt,  p.  114. 


272  BLASPHEMY. 


full  day  of  Judgment  *  *  *  Witb  another  flying  roll  en- 
suing ( to  all  the  inhabitants  of  the  earth ) "     ( Lond.  1649 ) . 

On  Feb.  1,  1650,  Parliament  issued  an  order  that  this 
book  be  burnt  by  the  hangman  because  containing  "many 
horrid  blasphemies."  This  book  is  said  to  have  been  the 
immediate  occasion  for  an  ordinance  of  Aug.  9th,  1650,  for 
the  "punishment  of  atheistical,  blasphemous,  and  ex- 
ecrable opinions." 

"His  tenets  are  the  ordinary  mistical  views  of  the  rant- 
ers who  are  charged  with  holding  that  there  is  no  God  and 
no  sin.  His  denial  of  sin  in  the  elect  was  a  distorted  an- 
tinomianism."  Some  types  of  the  insane  are  prone  to 
claim  for  themselves  such  divine  qualities  as  place  them 
above  human  moral  codes. 

"Perfectionism"  is  a  doctrine  often  entertained  by  relig- 
ious zealots,  who  consider  themselves  "blessed"  and  "re- 
deemed" and  is  sometimes  accompanied  by  sexual  irregu- 
larities as  among  the  Bible  Communists  of  Oneida,  and 
the  Adamites.  As  an  abstract  doctrine,  entirely  disso- 
ciated from  overt  act,  it  is  a  proclamation  of  holiness  or 
sinlessness.  Should  such  a  doctrine  now  be  declared  blas- 
phemous merely  because  of  a  speculative  tendency  to  dis- 
turb the  peace  and  sexual  morality? 

John  Fry— 1650.3^ 

Our  knowledge  of  this  case  rests  wholly  upon  the  rec- 
ord made  in  Parliament,  and  fortunately  that  gives  us  suf- 

"  Journal  of  the  House  of  Commons,  Feb.  20-22nd,  1650,  v.  6,  pp. 
539-540. 

The  accuser  shamed  or  a  pair  of  bellows  to  blow  off  that  dust  cast 
upon  John  Fry  a  member  of  parliament,  by  Colonel  John  Downs, 
likewise  a  member  of  parliament,  who  by  the  confederacy  and  in- 
stigation of  some,  charged  the  said  J.  F.  of  blasphemy  and  error  to 
the  *  *  *  House  of  Commons.  Whereunto  is  annexed,  a  word  to 
the  priests,  lawyers,  royalists,  self-seekers,  and  rigid  presbyterians. 
Also  a  brief  ventilation  of  that  chaffie  and  absurd  opinion  of  three 
persons  and  substances  in  the  God  head.  By  the  accused  J.  F.  Lon- 
don 1648. 

The  clergy  in  their  colors;  or  a  brief  character  of  them.  Written 
from  a  hearty  desire  of  their  reformation  and  great  zeal  to  my 
countrymen,  that  they  may  no  longer  be  deceived  by  such  as  call 
themselves  the  ministers  of  the  gospel,  but  are  not.  By  John  Fry, 
a  member  of  the  parliament  of  England.  *  *  *  London,  1650,  p.  60. 
Collection  of  Acts  of  Parliament.  1648-1658,  v.  2,  pp.  1293-1297. 
Vickers,   Robert  H.   Martyrdoms  of  literature,  p.   Zll. 


TROSECUTIONS   FOR   CRIMES   AGAINST   RELIGION.        273 

ficient  detail  to  enable  us  to  know  what  religious  discus- 
sions were  prohibited  at  common  law.    Here  is  the  record : 

"Mr.  Millington  reports  from  the  Committee  of  plund- 
ered Ministers,  the  Exceptions  taken  to  the  Book,  in- 
tituled, ^The  Clergy  in  their  Colours,'  and  to  the  Book,  in- 
tituled, 'The  Bellows,'  &c. :  With  the  Opinion  and  Eesolu- 
tions  of  the  said  Committee  thereupon:  ♦  ♦  *  were  this 
Day  read. 

"Exceptions  taken  by  the  Committee  for  plundered  Min- 
isters, against  the  Book,  intituled,  *The  Accuser  shamed,' 
&c.  by  the  accused  John  Fry,  Februarii  13,  1650. 

"1.  THAT  he,  the  said  John  Fry,  hath  published,  in 
Print,  the  Accusation  that  was  made  against  Mm,  vivw 
voce  only,  in  the  House  of  Parliament,  by  a  Member  of 
Parliament;  often  particularly  naming  and  reproaching 
the  said  Member,  in  the  said  Book,  Title  Page,  and  Page 
14,  15,  16,  17. 

"2.  That  ]^e  denies  the  Trinity,  calling  it,  *A  chaffy  and 
absurd  Opinion  of  Three  Persons,  or  Subsistences,  in  the 
Godhead,'  Title  Page,  and  Page  15;  and  especially.  Page 
the  22,  Line  the  14;  viz.  'Persons,  and  Subsistences,  are 
Substances,  or  Accidents.  As  for  the  Word  Person,  I  do 
not  understand  that  it  can  properly  be  attributed  but  to 
Man.  It  is  out  of  Doubt  with  me,  that,  if  you  ask  the 
most  Part  of  Men,  what  they  mean  by  a  Person,  they  will 
either  tell  you  'tis  a  Man,  or  else  they  are  not  able  to  give 
you  any  Answer  at  all:  And,  for  the  Word  Accident,  I 
suppose  none  will  attribute  that  to  God ;  for,  according  to 
my  poor  Skill,  that  Word  imx)orts  no  more,  but  the  Figure 
or  Colour,  &c.  of  a  Thing :  And  certainly  no  Man  ever  saw 
the  likeness  of  God ;  as  the  Scriptures  abundantly  testify : 
And  therefore  neither  of  the  Words,  Persons  or  Subsist- 
ences, can  hold  forth  such  a  Meaning  as  Accidents  in  God. 
Athanasius,  in  his  Creed,  faith,  'There  is  one  Person  of 
the  Father,  another  of  the  Son,  and  another  of  the  Holy 
Ghost:'  Others  say,  That  there  is  Three  distinct  Subsist- 
ences in  God :  Well  these  Three  Persons,  or  Subsistences, 
cannot  be  Accident ;  neither  do  I  think  it  is  the  Meaning  of 
any:  Then  certainly  they  must  be  Substances:  If  so,  then 
they  must  be  created  or  uncreated ;  limited  or  unlimited : 


274  BLASPHEMY. 


If  created,  and  limited ;  then  the  Person  of  the  Father  is  a 
Creature,  the  Person  of  the  Son  a  Creature,  and  the  Per- 
son of  the  Holy  Ghost  a  Creature ;  which  I  think  none  will 
affirm :  If  they  are  not  created,  or  limited,  then  they  must 
be  uncreated  and  unlimited;  for  I  know  no  Medium  be- 
tween created  and  uncreated,  limited  and  unlimited:  If 
they  are  uncreated  and  unlimited,  then  there  are  Three  un- 
created and  unlimited  Substances;  and  so,  consequently, 
Three  Gods.  For  my  Part,  I  find  no  Footing  for  such  Ex- 
pressions in  Scripture;  and  I  think  them  fit  only  to  keep 
ignorant  People  in  carnal  and  gross  Thoughts  of  God: 
And  therefore  I  do  explore  them  out  of  my  Creed.' 

^'Resolvedy  by  the  Committee,  That  the  aforesaid  Second 
Exception  be  reported  to  the  House,  as  containing  Matter 
of  Blasphemy. 

"Exceptions  taken  by  the  said  Committee  against  the 
Book,  intituled,  *The  Clergy  in  their  Colours,'  printed 
under  the  Name  of  John  Fry,  a  Member  of  th^  Parliament 
of  England, 

"THAT  the  said  Committee  do  except  against  the 
Clause  in  the  Book,  Page  39,  Line  17,  as  scandalous;  viz, 
*I  cannot  let  pass  one  Observation:  And  that  is,  The 
strange  Posture  these  Men  put  themselves  into,  when  they 
begin  their  Prayers  before  their  Sermons:  Whether  the 
Fools  and  Knaves  in  Stage  Plays  took  their  Pattern  from 
these  Men,  or  these  from  them,  I  cannot  determine,  dc. 
Wh2it  wry  Mouths,  squint  Eyes,  screwed  Faces,  do  they 
make.'  And  Page  41,  Line  3;  viz.  *Again,  how  like  a 
Company  of  Conjurers  do  they  mumble  out  the  Beginning 
of  their  Prayers,  that  the  People  may  not  hear  them,  and, 
when  artificially  they  have  raised  their  Voices,  what  a 
Puling  do  they  make.' 

"This  Committee  being  of  Opinion,  That  the  aforefaid 
Passages  are  fit  to  be  excepted  against,  in  regard  they  are 
scandalous. 

"That  the  said  Committee  do  further  except  against  the 
Clause,  Page  49,  Line  1 ;  viz.  *I  must  confess,  I  have  heard 
much  of  believing  Things  above  Reason;  and  the  Time 
was,  when  I  swallowed  that  Pill:  But  I  may  say,  as  ^t. 
Paul,  dc.     When  I  was  a  Child,  dc.     Every  Man  that 


FROSECUTIONS    FOR    CRIMES    AGAINST    RELIGION.         275 

kiioweth  any  thing,  knowetli  this:  that  it  is  Reason  that 
distinguisheth  a  Man  from  a  Beast :  If  you  take  away  his 
Keason,  you  deny  his  very  Essence :  Therefore,  if  any  Man 
will  consent  to  give  up  his  Reason,  I  would  as  soon  con- 
verse with  a  Beast  as  with  that  Man:  And  whatsoever 
Pretence  some  may  make  of  Religion;  in  this  Particular, 
certainly  there  is  nothing  else  in  it  but  Ignorance  and 
Policy.' 

"The  said  Committee  do  further  except  against  the 
Clause,  Page  11;  Line  14,  to  the  End  of  the  Thirteenth 
Page;  ^I  have  for  some  Years  past  entered  into  a  serious 
Consideration  of  my  latter  End,  and  of  a  Saint's  Life  in 
this  World:  And,  being  convinced,  that  I  should  not  be 
saved  by  an  implicit  Faith,  I  took  Example  by  the  Bereans, 
to  search  the  Scriptures,  whether  such  Things  as  I  heard 
and  read  of  God,  and  his  Attributes,  Heaven,  Hell,  Angels 
both  good  and  bad,  Man,  Prayer,  Sin,  were  so  or  no :  And, 
upon  a  narrow  Scrutiny,  I  found  such  Contradictions,  Ab- 
surdities, and  Inconsequences,  in  many  considerable 
Things,  that  I  wondered  I  had  been  so  long  blind,  &c. 
After  I  had  a  full  Sight  of  these  Things;  and  that  from 
mine  own  Experience,  I  concluded,  that  Men  greedily 
swallow  down  such  Doctrines;  and  that  some  of  the 
Teachers,  as  well  zealously,  through  ignorance  and  other- 
wise, held  them  forth.' 

"That  it  appears  to  this  committee,  that  the  whole  scope 
of  the  book  doth  tend  to  the  Overthrow  of  the  Preachers 
and  Preaching  of  the  Gospel. 

"That  both  said  Books,  throughout,  are  against  ♦  ♦  ♦ 
Doctrine  and  assertions  of  the  true  Religion." 

The  books  were  ordered  burnt  and  Fry  "disabled  to  sit 
as  a  Member  of  this  House"  of  parliament. 

Here  again  is  the  highest  authority  to  the  effect  that  it  is 
a  violation  of  law  to  deny  the  trinity  or  to  promote  any 
doctrines  that  "are  against  doctrines  and  assertions  of 
true  religion."  It  is  that  meaning  that  must  be  ascribed 
to  t\(?'  blasphemy  definition.  It  is  with  that  meaning  that 
we  must  determine  the  constitutionality  of  the  blasphemy 
statute. 


276  BLASPHEMY. 


Robert  Norwood — 1651.^2 

As  to  this  man  no  biographical  data  was  found  except 
that  contained  in  his  own  pamphlets.  He  seems  to  have 
been  identified  with  political,  military  and  religious  activi- 
ties, during  the  turbulent  period  of  England's  history. 
He  claims  to  have  spent  a  considerable  fortune  to  accom- 
plish reforms  that  he  deemed  important.  A  postscript  to 
a  pamphlet  devoted  to  his  trial  shows  that  he  was  under 
suspicion  of  disloyalty  to  the  government  of  1651  and 
doubtless  this  was  the  real  motive  for  his  prosecution. 

So  far  as  preserved,  the  story  of  his  prosecution  is  as 
follows:  Some  acquaintances  of  Norwood  called  upon 
him  to  repudiate  some  "false"  doctrines  ascribed  to  him. 
Instead  he  offered  publicly  to  defend  whatever  he  be- 
lieved. A  meeting  was  arranged  at  which  he  read  a  care- 
fully prepared  paper.  He  invited  his  pastor,  the  Rev. 
Shidrack  Simpson,  to  discuss  the  merits  of  his  contention 
"in  love,  peace  and  quietness,"  and  sent  him  a  copy  of  the 

"A  brief  discourse  made  by  Capt.  R.  Norwood  in  the  upper-bench 
court  at  Westminster.  With  some  argument  by  him  then  given,  in 
defense  of  himself,  and  prosecution  of  a  writ  of  errour  by  him 
brought  upon  an  indictment  found  and  adjudged  against  him  upon 
an  act  against  blasphemy,  at  the  sessions  in  Old  Bayly,  Jan.  28, 
1651,  London,  1652. 

The  case  and  trial  of  Capt  R.  Norwood  *  truly  *  stated.  Together 
with  some  observations  upon  the  law  and  its  professors.  [London, 
1651] 

The  form  of  an  excommunication  against  Capt.  R.  Norwood,  ex- 
amined and   answered,  by   Capt.   R.   Norwood,   1651. 
Simpson,  S.    A  declaration  or  testimony  given  by  *  *  R.  Norwood 
under  his  own  hand  *  *  April  21  *  *  together  with  several  of  his 
answers  and  desires,  proposed  *  *  after  his  excommunication,  1651. 
Capt.  Norwood's  declaration  proved  an  abnegation  of  Christ.     See 
Graunt  (J)  of  Bucklerbury.    Truth's  defender  and  error's  reprover; 
or  a  briefe  discoverie  of  feined  Presbyterie,  etc.,  1651. 
A  pathway  unto  England's  perfect  settlement,  and  its  centre  and 
foundation  of  rest  and  peace,  London,   1653. 
An  additional  discourse,  relating  unto  a  treatise  *  *  *  by  Capt.  R. 
Norwood,   intituled   "a  pathway  to   England's  perfect   settlement." 
*  *  *  with  something  concerning  the  Jewish  civil  constitutions.    With 
a  brief  answer  to  Mr.  J.  Spittlehouse,  in  the  book  bearing  the  title: 
The  first  addresses  to  his  excellencie,  etc.,  London,  1653. 
Proposal  for  propagation  of  the  gospel,  offered  to  the  parliament. 
[London  1651?  o.  s.] 

Norwood  also  wrote  a  preface  to  a  book  by  T.  Tany,  1651. 
As  to  Shidrack  Simpson  see:  Dictionary  of  national  biography,  v. 
32,  p.  278. 


PROSECUTIONS    FOR   CRIMES    AGAINST    RELIGION.         2i  i 

paper.  Simpson  was  a  man  of  some  importance,  being  a 
member  of  the  Westminster  Assembly  of  Divines. 

A  second  paper  was  sent  by  Norwood  to  Simpson  with 
a  letter  more  challenging  than  before  and  both  papers  were 
published.  Thereupon  Simpson  caused  Norwood  to  be 
excommunicated  for  "blasphemous  heresy"  of  pantheistic 
stamp.  Simpson  also  broke  into  print  with  his  "The  form 
of  an  excommunication  ^against  Captain  R.  Norwood." 
Norwood  replied  in  "Excommunication  Excommunicated." 
The  parson  was  also  a  member  of  a  society  for  preserving 
the  laws  of  the  nation,  and  in  that  capacity  caused  Nor- 
wood to  be  arrested  for  his  blasphemy. 

Two  items  were  alleged,  first,  "that  the  soul  of  man  is 
of  the  essence  of  God,  and  second,  that  there  is  neither 
heaven  nor  hell  but  what  is  here." 

Norwood  tells  us  that  the  charges  in  the  criminal  court 
were  substantially  the  same  as  for  his  excommunication 
from  the  church.  There  is  much  discussion  as  to  this 
blasphemous  matter  which  however  seems  to  be  chiefly 
about  the  meaning  of  words.  Norwood  insists  that  he 
shall  be  tried  upon  the  exact  words  used  by  him.  His 
opponents  characterize  them  according  to  their  own  de- 
testation of  them.     Let  me  illustrate. 

Norwood  identified  himself  with  Francis  Rous,  one  of 
the  most  conspicuous  puritans  of  his  time.  Rous  had 
published  a  book  on  "Mystical  marriage"  which  accord- 
ing to  Norwood  expressed  doctrines  like  unto  his  own. 
Norwood  writes:  "This  gentleman  [Rous]  whom  they 
have  already  wounded  through  my  sides,  may  now  also 
expect  (such  are  the  present  times)  an  indictment  at  the 
Sessions  house  for  same  as  well  as  myself,  he  being  guilty 
of  the  same  truth,  as  saying,  the  soul  came  or  was  breathed 
into  man  from  God,  is  of  a  divine  and  heavenly  essence, 
or  of  the  essence  of  God."  So  Norwood  claims  that  by 
denying  the  truth  of  this  doctrine  his  prosecutors  "deny 
the  immortality  of  the  soul." 

When  this  innocent  doctrine  was  transformed  into  the 
language  of  the  indictment  by  adding  to  it  the  dangerous 
tendencies  and  implications  existing  in  the  feverish  brain 
of  the  Attorney  General  it  read  thus :   "Robert  Norwood 


278  BLASPHEMY. 


being  one  most  monstrous  in  his  opinions,  loose,  wicked 
and  abominable  in  his  practices,  not  only  to  the  notorious 
corrupting  and  disordering,  but  even  to  the  dissolution 
of  all  humane  society,  rejecting  the  use  of  any  Gospel- 
Ordinances,  doth  deny  the  necessity  of  civil  and  moral 
righteousness  amongst  men."  When  Norwood  protested 
his  innocence  of  such  iniquity  he  was  told  from  the  Bench 
"that  was  no  part  of  the  charge  but  was  only  a  preamble." 
Such  things  happen  if  crime  is  predicted  upon  mere  specu- 
lation about  psychologic  tendency  instead  of  overt  act  to 
inflict  actual  and  material  injury. 

More  detail  of  his  trial  is  not  vouchsafed  us  except  in- 
directly. Norwood  tells  us  the  criminal  charges  were  the 
same  as  on  his  excommunication.  This  we  must  believe 
because  Simpson  was  responsible  for  both.  The  latter^s 
published  justification  of  the  excommunication  will  there- 
fore illumine  us  still  further.    He  says : 

"The  crimes  that  he  is  charged  withal  are,  First  of  all, 
Lying  in  a  matter  of  trust.  Secondly,  Apostacy  from  the 
Truth,  to  blasphemous  errors;  as  that  there  is  neither 
Heaven  nor  Hell,  but  all  the  Hell  that  there  is,  is  the  light 
of  God  burning  up  the  darkness  that  is  in  Man ;  and  that 
the  soul  of  man  is  the  Essence  of  God.  These  have  been 
proved  to  him,  and  before  him;  in  Lying  in  matters  of 
trust,  by  two  witnesses;  his  blasphemous  errors  by  many 
more.  The  question  being  put  to  him,  whether  he  spake 
these  things  as  his  judgment,  he  made  answer  and  said, 
he  did  utter  them  as  his  judgment;  and  that  which  he 
must  say  except  he  should  lye  befor  God." 

Much  scripture  is  cited  in  the  excommunication  to  prove 
that  Hell  is  a  place,  and  not  a  psychologic  condition. 
Likewise  he  deals  with  the  controversy  as  to  the  nature 
of  the  soul.  Here  again  Norwood's  accusers  declare  his 
offending  doctrine.  "What  the  witnesses  have  af&rmed, 
his  Paper  now  holds  out,  and  as  he  hath  now  printed  holds 
out ;  that  the  soul  of  man  is  the  Essence  of  God ;  and  there 
be  three  in  men,  the  Soul,  that  is  God,  the  Spirit,  that  is 
the  Devil,  and  the  Body,  that  is  the  Beast;  *  *  *  He  hath 
added  to  all  these  errors,  this  error  more,  that  it  was  one 
of  the  greatest  blasphemies  to  teach  and  exhort  people  to 


PROSECUTIONS    FOR    CRIMES    AGAINST   RELIGION.         279 

pray  when  God  was  angry;  and  that  upon  faith  and  re- 
pentance God  would  be  well  pleased  again;  and  together 
withal,  that  Jesus  Christ  did  not  die  to  pacifie  any  wrath 
and  displeasure  of  God  against  sinfull  man." 

Norwood  disclaimed  these  interpretations  of  his  words 
and  offered  to  confess  belief  in  hell,  heaven,  damnation 
and  salation,  but  this  did  not  satisfy.  Accordingly  he 
received  a  sentence  of  six  months  imprisonment. 

Norwood  makes  interesting  technical  defences  for  his 
position,  but  only  persuades  us  that  the  whole  controversy 
is  merely  a  metaphysical  quibble  about  the  interpretation 
of  scripture.  His  disagreement  with  the  official  inter- 
pretation was  all  there  was  to  his  ^^blasphemous  error." 
To  blaspheme  the  holy  scriptures  therefore  is  sufficiently 
accomplished  by  denying  the  legalized  interpretation  of 
it.  What  is  the  present  statutory  meaning  of  "blaspheme" 
of  "Christian  religion"  and  of  "Holy  Scripture"  under  the 
Connecticut  statute? 

Racovian  Catechism — 1652.^^ 

The  famous  Racovicm  Catechism,  was  first  published  in 
Polish  at  Racow  in  1605,  and  in  Latin  in  1609.  In  it  two 
anti-Trinitarian  divines  reduced  to  a  systematic  form  the 
whole  of  the  Socinian  doctrine.  A  special  interest  attaches 
to  it  from  the  fact  that  Milton,  then  nearly  blind,  was 
called  before  the  House  in  connection  with  the  Catechism, 
as  though  he  had  had  a  share  in  its  translation  or  publica- 
tion. It  was  condemned  to  be  burnt  as  "blasphemous, 
erroneous  and  scandalous"  (April  Ist,  1652) .  In  the  Jour- 
nals of  the  House  copious  extracts  are  given  from  the 
work,  from  which  the  following  may  serve  to  indicate  what 
chiefly  gave  offense: — 

"What  do  you  conceive  exceedingly  profitable  to  be 
known  of  the  Essence  of  God? 

"It  is  to  know  that  in  the  Essence  of  God  there  is  only 

"Journal  of  the  House  of  Commons,  See  Vol.  7:  86,  III,  112,  114, 
144,  1652. 

Racovian  Catechism :  Chatechisis  ecclesiarum  quae  in  regno  Poloniae 
et  magno  Ducatu  Lithuaniae  *  *  *  affirmant  Christi,  neminem  alium 
praeter  Patrem  Domini  nostri  Jesu  esse  *  *  *  1609.     (A  translation 
of  the  Racovian  Cathechism  has  been  ascribed  to  Biddle.) 
Farrer,  James  Anson.    Books  condemned  to  be  burnt,  pp.  110-114. 


280  BLASPHEMY. 


one  person  *  *  *  and  that  by  no  means  can  there  be  more 
persons  in  that  Essence,  and  that  many  persons  in  one 
essence  is  a  pernicious  opinion,  which  doth  easily  pluck 
up  and  destroy  the  belief  of  one  God  ♦  ♦  ♦ 

"But  the  Christians  do  commonly  affirm  the  Son  and 
Spirit  to  be  also  persons  in  the  unity  of  the  same  Godhead. 

"I  know  they  do,  but  it  is  a  very  great  error;  and  the 
arguments  brought  for  it  are  taken  from  Scripture  mis-j 
understood. 

"But  seeing  the  Son  is  called  God  in  the  Scriptures,  how 
can  that  be  answered? 

"The  word  God  in  Scripture  is  chiefly  used  two  ways: 
first,  as  it  signifies  Him  that  rules  in  heaven  and  earth 
*  *  * ;  secondly,  as  it  signifies  one  who  hath  received  some 
high  power  or  authority  from  that  one  God,  or  in  some 
way  made  partaker  of  the  Deity  of  that  one  God.  It  is  in 
this  latter  sense  that  the  Son  in  certain  places  in  Scrip- 
ture is  called  God.  And  the  Son  is  upon  no  higher  account 
called  God  than  that  He  is  sanctified  by  the  Father  and 
sent  into  the  world. 

"But  hath  not  the  Lord  Jesus  Christ  besides  His  human 
a  Divine  nature  also? 

"No,  by  no  means,  for  that  is  not  only  repugnant  to 
sound  reason,  but  to  the  Holy  Scripture  also.'' 

This  is  doubtless  enough  to  convey  an  idea  of  the  Cate- 
chism, which  was  again  translated  in  1818  by  T.  Rees. 
Whether  Biddle  was  the  original  translator  or  not,  he 
must  have  been  actuated  by  good  intentions  in  what  he 
wrote;  for  he  says  of  the  Twofold  Catechism^  that  it  "was 
composed  for  their  sakes  that  would  fain  be  mere  Chris- 
tians, and  not  of  this  or  that  sect,  inasmuch  as  all  the  sects 
of  Christians,  by  what  names  soever  distinguished,  have 
either  more  or  less  departed  from  the  simplicity  and  truth 
of  the  Scripture." 

James  Nayloe — 1656.^* 
This  blasphemer  (1616-1660)  was  a  Quaker  of  Bristol, 
suffering  from  harmless  delusions  of  grandeur.     Before 

"*Hume,  Commentaries  on  the  Laws  of  Scotland,  v.  1,  p.  571. 
5  Howeirs  State  trials,  pp.  801-842. 
Goodwin's,  Commonwealth,  v.  4,  p.  320,  cited. 


PROSECUTIONS    FOR    CRIMES   AGAINST   RELIGION.         281 

the  House  of  Commons  he  was  charged  with  claiming 
equality  with  God  and  allowing  Mmself  to  be  adored  as 
God  or  Christ.  In  his  examination  he  professed  that 
Christ  dwelt  in  him  in  the  flesh  and  that  he  was  "set  up  as 
a  sign  to  summon  this  nation,  and  to  convince  them  of 
Christ's  coming.  The  fulness  of  Christ's  coming  is  not 
yet,  but  he  is  come  now.  *  *  *  As  I  have  dominion  over 
the  enemies  of  Christ,  I  am  King  of  Israel,  spirtually. 
*  *  *  He  that  has  a  greater  measure  of  Christ  than  10,000 
below  him  the  same  is  the  fairest  of  10,000,"  and  so  he  was 
called.  He  confessed  that  some  of  the  women  who  waited 
on  him  had  kneeled  to  him;  but  he  denied  that  in  doing 
so  they,  paid  him  worship  or  adoration  as  a  creature,  and 
professed  his  abhorrence  of  such  a  thing  and  of  all  adolatry. 

Entering  Bristol  on  horseback  followed  by  a  multitude, 
he  explained  that  this  "was  bom  in  upon  him  against  his 
will  and  mind,"  and  could  not  be  resisted.  "It  was  the 
Lord's  will  to  give  it  into  me,  to  suffer  such  things  to  be 
done  in  me;  and  I  durst  not  resist  it,  though  I  was  sure 
to  lay  down  my  life  for  it."  His  general  attitude  toward 
God  and  Christ  was  orthodox. 

After  several  days  spent  in  debate  as  to  whether  or  not 
this  amounted  to  blasphemy,  etc.,  Naylor  was  found  guilty 
of  "horrid  blasphemy,"  sentenced  to  be  repeatedly  set  in 
the  pillory,  and  scourged;  to  be  branded  with  the  letter 
"B"  on  the  forehead,  and  to  have  his  tongue  bored  with  a 
red-hot  iron;  as  also  to  be  confined  afterwards  in  Bride- 
well, at  hard  labour,  without  any  society  and  with  "no 

Memoirs  preceding  the  trial  of  James  Naylor.  Report  from  the 
Committee,  80,  p. 

Memoirs  of  the  life,  ministry,  tryal  and  sufferings  of  that  very 
eminent  person  James  Nailor,  the  quaker's  great  apostle.  Who 
was  try'd  by  the  High  Court  of  parliament  for  blasphemy,  in  the 
year  1656.    London  1719. 

House  of  Commons  Journal,  v.  7,  pp.  468-775. 
Law  Magazine  and  Review,  v.  9,  pp.   163-164. 
C.  Bradlaugh  in  "The  laws  relating  to  blasphemy  and  heresy."  p. 
11-12. 

Bonner,  Hypatia  Bradlaugh,  Penalties  upon  opinion  or  some  records 
of  the  laws  of  heresy  and  blasphemy.  London,  1912. 
Diary  of  Thomas  Burton,  Esq.,  member  of  the  parliaments  of 
Oliver  and  Richard  Cromwell,  from  1656  to  1659 ;  now  first  published 
*  *  *  edited  *  *  *  by  John  Towill  Rutt.  *  *  *  London  1828.  Vol.  1, 
pp.  46,  158,  246. 


282  BLASPHEMY. 


relief  but  what  he  earns  hy  his  daily  labour."  He  escaped 
death  by  a  vote  of  96  to  82. 

Naylor  was  again  scourged,  on  Jan.  17,  1657,  at  Bristol 
sitting  "upon  a  horse  bareridged,  with  his  face  backwards." 
It  is  said  that  at  one  of  his  scourgings  "there  was  no  skin 
left  between  his  shoulders  and  his  hips."  Later  he  was 
confined  in  Bridewell,  without  pen,  ink,  or  paper,  fire  or 
candle.  He  was  kept  there  till  8th  September,  1659,  and 
was  then  discharged  by  the  Long  Parliament,  at  that  time 
revived. 

The  Lord  Commission  Whitelocke  in  giving  judgment, 
attempted  to  discriminate  between  blasphemy  and  heresy. 
He  said:  "I  think  it  not  improper  first  to  consider  the  sig- 
nification of  the  word  ^blaspheme',  and  what  it  compre- 
hends in  the  extensiveness  of  it;  and  I  take  it  to  compre- 
hend the  reviling  or  cursing  the  name  of  God  or  of  his 
neighbor."  He  further  said:  "They  are  offences  of  a 
different  nature:  heresy  is  Crimen  Jndicii,  an  erroneous 
opinion;  blasphemy  is  Crimen  Malitiae,  a  reviling  the 
name  and  honor  of  God." 

Benjamin  Keach — 1664.^^ 

Keach  (1640-1704)  was  minister  of  the  Armenian  Bap- 
tists. He  began  to  preach  in  1659.  He  expressed  his 
theology  in  poetry  as  "The  Glorious  Lover,"  and  published 
over  fifty  items,  some  mystical,  but  mostly  controversial, 
and  expository. 

In  1664  he  was  arrested  for  preaching  at  Winslow,  Buck- 
inghamshire. He  was  not  long  at  liberty  when  indicted 
for  "certain  damnable  positions"  contained  in  his  "Child's 
Instructor,"  or  a  "New  and  Easy  Primmer,"  a  Baptist 
catechism  which  maintained  that  infants  ought  not  to  be 
baptised,  "contrary  to  the  doctrine  and  ceremonies  of  the 
Church  of  England."  The  trial  occurred  Oct.  8,  1664,  be- 
fore Sir  Robert  Hyde,  who  sentenced  him  to  a  fine  of  £20 
and  a  fortnight's  imprisonment,  with  the  pillory,  where 

"Dictionary  of  national  biography,  v.  30,  p.  254. 
Howell's,  State  trials,  vol.  6,  pp.  702-710. 

Stephen,  James  Fitzjames;  History  of  the  criminal  law  of  England, 
V.  1,  p.  375. 
Cobbett's,   State  trials,  v.  3.  pp.  701-710. 


I'ROSECUTIONS    FOR    CRIMES    AGAINST   RELIGION.         283 


his  book  was  burned  before  his  eyes.    He  was  also  required 
to  give  sureties  for  his  good  behavior. 

Fortunately,  the  indictment  has  been  preserved  so  that 
we  may  judge  what  gave  offence.  Here  it  is  as  read  to  the 
defendant  by  the  clerk : 

"Thou  art  here  indicted  by  the  name  of  Benjamin  Keach, 
of  the  parish  of  Winslow,  in  the  county  of  Bucks:  For 
that  thou  being  a  seditious,  heretical,  and  schismatical 
person,  evilly  and  maliciously  disposed,  and  disaffected 
to  his  majesty's  government,  and  the  government  of  the 
Church  of  England,  didst  maliciously  and  wickedly,  on 
the  1st  day  of  May,  in  the  16th  year  of  the  reign  of  our 
sovereign  lord,  the  king,  write,  print,  and  publish,  oi* 
cause  to  be  WTitten,  printed,  and  published,  one  seditious 
and  venomous  book,  entitled,  ^The  Child's  Instructor;  or, 
A  New  and  Easy  Primmer';  wherein  are  contained  by 
way  of  Question  and  Answer,  these  damnable  positions, 
contrary  to  the  book  of  Common  Prayer,  and  the  Liturgy 
of  the  Church  of  England;  That  is  to  say,  in  one  place 
you  have  thus  written;  ^Q.  Who  are  the  right  subjects 
of  baptism?  A,  Believers,  or  Godly  men  and  women  only, 
who  can  make  confession  of  their  faith  and  repentence.' 
And  in  another  place  you  have  maliciously  and  wickedly 
written  these  words:  ^Q.  How  shall  it  then  go  with  the 
Saints?  A.  O,  very  well.  It  is  the  day  they  have  longed 
for :  Then  they  shall  hear  that  sentence.  Come,  ye  blessed 
of  my  Father,  inherit  the  kingdom  prepared  for  you ;  and 
so  shall  they  reign  with  Christ  on  the  earth  a  thousand 
years,  even  on  Mount  Sion,  in  New  Jerusalem;  for  there 
will  Christ's  throne  be,  on  which  they  must  sit  down  with 
him.'  Then  follows  this  Question,  with  the  Answer  thereto, 
in  these  plain  English  words:  'Q.  When  shall  the  wicked 
and  the  fallen  angels,  which  be  the  Devils,  be  judged?  A. 
When  the  thousand  years  shall  be  expired,  then  shall  the 
rest  of  the  devils  be  raised,  and  then  shall  be  the  general 
and  last  judgment,  then  shall  all  the  rest  of  the  dead  and 
devils  be  judged  by  Christ  and  his  glorified  saints;  and 
they  being  arraigned  and  judged,  the  wicked  shall  be  con- 


284  BLASPHEMY. 


demned,  and  cast  by  angels  into  the  lake  of  fire,  tliere  to 
be  burned  for  ever  and  ever.' 

"In  another  place  thou  hast  wickedly  and  maliciously 
written  these  plain  English  words:  ^Q.  Why  may  not 
infants  be  received  into  the  Church  now,  as  they  were 
under  the  law?  A.  Because  the  fleshy  seed  is  cast  out: 
Though  God  under  that  dispensation  did  receive  infants 
in  a  lineal  way  by  generation,  yet  he  that  hath  the  key 
of  David,  that  openeth  and  no  man  shutteth,  that  shutteth 
and  no  man  openeth,  hath  shut  up  that  way  into  the 
Church;  and  hath  opened  the  door  of  regeneration,  re- 
ceiving in  none  but  believers.  Q,  What  then  is  the  state 
of  infants?  A.  Infants  that  die  are  members  of  the  king- 
dom of  Glory,  though  they  be  not  members  of  the  visible 
Church.  Q.  Do  they  then  that  bring  in  infants  in  a  fleshly 
and  lineal  way,  err  from  the  way  of  truth?  A.  Yea,  they 
do ;  for  they  make  not  God's  holy  word  their  rule,  but  do 
presume  to  open  a  door  that  Christ  hath  shut,  and  none 
ought  to  open.'  And  also  in  another  place  thou  has  wick- 
edly and  maliciously  composed  *A  short  Confession  of  the 
Christian  Faith';  wherein  thou  hast  affirmed  this  con- 
cerning the  second  person  in  the  Blessed  Trinity,  in  these 
plain  English  words:  *I  also  believe  that  he  rose  again 
the  third  day  from  the  dead,  and  ascended  into  Heaven 
above,  and  there  now  sitteth  on  the  right  hand  of  God  the 
Father;  and  from  thence  he  shall  come  again  at  the  ap- 
I)ointed  time  of  the  Father  to  reign  personally  upon  the 
earth,  and  to  be  judge  of  the  quick  and  dead.'  And 
in  another  place  thou  hast  wickedly  and  maliciously 
affirmed  these  things  concerning  true  Gospel-Ministers, 
in  plain  English  words  following :  'Christ  hath  not  chosen 
the  wise  and  prudent  man  after  the  flesh,  not  great  doc- 
tors and  rabbies ;  Not  many  mighty  and  noble,  saith  Paul, 
are  called :  but  rather  the  poor  and  despised,  even  trades- 
men, and  such-like,  as  was  Matthew,  Peter,  Andrew,  Paul, 
and  others.  And  Christ's  true  ministers  have  not  their 
learning  and  wisdom  from  men,  or  from  universities,  or 
human  schools  for  human  learning.  Arts  and  sciences 
are  not  essential  to  making  of  a  true  minister,  but  the 
gifts  of  God,  which  cannot  be  bought  with  silver  and 


PROSECUTIONS    FOR   CRIMES   AGAINST   RELIGION.         285 

gold;  and  also  as  they  have  freely  received  the  gift,  so 
they  do  freely  administer;  They  do  not  preach  for  hire, 
for  gain  and  filthy  lucre;  They  are  not  like  the  false 
teachers,  who  look  for  gain  from  their  quarter;  who  eat 
the  fat,  and  clothe  themselves  with  the  wool,  and  kill 
them  that  are  fed;  those  that  put  not  into  their  mouths, 
they  prepare  war  against:  Also  they  are  not  Lords  over 
God's  heritage,  they  rule  them  not  by  force  and  cruelty, 
tneither  have  they  power  to  force  and  compel  men  to 
believe  and  obey  their  doctrines,  but  are  only  to  persuade 
and  intreat;  for  this  is  the  way  of  the  Gospel,  as  Christ 
taught  them/ 

"And  many  other  things  hast  thou  seditiously,  wickedly, 
and  maliciously  written  in  the  said  book,  to  the  great  dis- 
pleasure of  Almighty  God,  the  scandal  of  the  liturgy  of 
the  Church  of  England,  the  disaffection  of  the  king'« 
people  to  his  majesty's  government,  the  danger  of  the 
peace  of  this  kingdom,  the  evil  example  of  others,  and 
contrary  to  the  statute  in  that  case  made  and  provided. 
How  say  you,  Benjamin  Keach;  are  you  Guilty  or  Not 
Guilty?" 

Keach  plead  not  guilty,  was  tried  and  found  guilty 
except  that  in  one  place  the  indictment  used  the  word 
"devils"  for  dead  in  the  phrase  where  book  read  "then 
shall  the  dead  be  raised." 

Here  then  is  a  clear  case  where  difference  of  opinion 
about  baptism  and  of  the  relations  of  the  several  members 
of  the  trinity  was  a  crime  both  seditious  and  heretical. 
The  jury  were  given  a  copy  of  the  Book  of  Common  Prayer 
with  the  appropriate  passages  marked  for  comparison  with 
Reach's  Primmer.  There,  comparisons  were  also  made 
by  the  Judge  in  his  instructions.  How  trifling  the  dif* 
ferences  can  be  seen  by  reading  the  account  in  HowelPa 
State  Trials. 

Taylor's  Case— 1675.3« 

Lord  Hale  presided  in  Taylor's  Case.  The  record  reads 
thus:     "An  information  by  Attorney  Jones  for  saying: 

'•  1  Ventris,  293. 
3  Kebble,  607. 
2  Strange,  789. 


286  BLASPHEMY. 


'Clirist  is  a  whore-master,  and  religion  a  cheat,  and  pro- 
fession a  cloak,  and  all  cheats,  all  are  mine,  and  I  am 
a  king's  son  and  fear  neither  God,  devil  nor  man.  I  am 
Christ's  younger  brother  (proved  by  three  witnesses), 
and  that  Christ  is  a  bastard,  and  damn  all  Gods  of  the 
Quakers,'  etc.,  m  distruction  of  society  and  religion,  and 
contempt,  etc.,  *none  fear  God  but  an  hypocrite,'  proved 
by  one.' 

According  to  one  report,  a  part  of  these  quoted  words 
were  denied,  another  part  explained.  What  was  neither 
denied,  nor  explained  is  thus  reported:  "Eeligion  was  a 
cheat,  and  that  he  neither  feared  God,  the  devil  nor  man." 
The  partial  denial  and  explanation  will  account  for  the 
fact  that  all  the  accused  words  are  not  used  in  both  re- 
ports, and  perhaps  explains  why  Lord  Hale  did  not  repeat 
all  of  them.    He  said: 

"These  words,  though  of  ecclesiastical  cognizance,  yet 
that  religion  is  a  cheat  tends  to  a  dissolution  of  all  gov- 
'emments,  and  therefore  ptinishahle  here,  and  so  of  con- 
tumelious reproaches  of  God,  or  the  religion  established; 
which  the  court  agreed  and  adjudged.  An  indictment  lay 
for  saying  the  Protestant  religion  was  a  fiction ;  for  taking 
away  religion,  all  obligation  to  government  hy  oath,  etc., 
ceaseth,  and  Christian  religion  is  part  of  the  Law  of  itself: 
therefore  injuries  to  God  are  as  punishable  as  to  a  King  or 
any  common  person." 

LODOWICK  MUGGLETON — 1653^-1676.^'^ 
Lodowick  Muggleton  (1609-1698)  was  one  of  that  nu- 
merous band  of  religious  enthusiasts  who  consider  them- 

Digest  of  the  law  concerning  libels,  pp.  57-117.    . 
Folkard's  Starkie  on  libel  and  slander.  5  Ed.  p.  615. 
Law  Magazine  and  Review,  v.  9,  p.  164. 
"Dictionary  of  national  biography,  v.  39,  pp.  364-267. 
A  transcendent  spiritual  treatise  on  several  heavenly  doctrines  from 
the  man  Jesus  the  only  true  god,  sent  unto  all  his  elect  as  a  token 
of  love  unto  them  by  the  hand  of  his  own  prophet  being  his  last 
'  and  witness  and  forerunner  of  the  visible  appearing  of  the  distinct 

personal  God  in  power  and  great  glory  in  the  clouds  of  heaven  with 
!  his  ten  thousands  of  personal  saints  to  separate  between  the  elect 

j  world  and  reprobate  world  to  all  eternity  *  *  *  John  Reeve  and 

Lodowick  Muggleton  the  last  witnesses  and  true  prophets  of  the 
Man  Jesus  the  only  Lord  of  life  and  glory.     [1652] 
Muggleton  revived  or  new  news  of  the  grand  impostor  being  a  nar* 


PROSECUTIONS   FOR   CRIMES   AGAINST   RELIGION.        287 

selves  more  favored  of  God  than  v^e  ordinary  mortals. 
Muggleton's  religious  career  began  about  1651.  His  part- 
ner in  the  enjoyment  of  special  divine  prerogatives  was 
his  cousin,  John  Reeve  (or  Reeves),  both  being  tailors  by 
trade.  Between  them  they  claimed  to  have  been  vested 
with  certain  divine  powers  and  prophetic  gifts.  In  these 
matters  of  course  they  became  competitors  of  those  who 
had  a  legally  established  monopoly  on  divine  truths. 
What  made  them  the  more  obnoxious  is  that  as  "  kid- 

rative  of  his  late  behaviour  since  his  sentence  and  standing  in  the 
pillory.  With  the  substance  of  several  discourses  had  with  him  he 
still  persisting  in  his  blasphemous  tenets,  and  damning  people  as 
formerly  with  allowance.  London,  printed  for  D.  M.  1677. 
A  remonstrance  from  the  eternal  God  and  declaring  several  spiritual 
transactions  unto  parliament  and  commonwealth  of  England:  until 
his  excellency,  the  lord  general  Cromwell  the  council  of  state  and 
the  council  of  war  *  *  *  Printed  in  the  year  1653  and  reprinted 
in  the  year  1719,  pp.   13-14. 

A  volume  of  spiritual  epistles  *  *  *.  This  printed  by  subscription 
in  the  year  1755  *  *  *  was  reprinted  *  *  *  1751—1752—1753  *  *  *. 
News  from  the  sessions-house  in  the  Old  Bayley  being  a  true  ac- 
count of  the  notorious  principles  and  wicked  practices  of  the  grand 
impostor  Lodowick  Muggleton,  who  has  the  impudence  to  style 
himself  one  of  the  two  last  commissionated  witnesses  and  prophets 
of  the  most  high  God  Jesus  Christ.  Collected  out  of  his  own  writ- 
ings, for  which  damnable  heresies  being  bound  over,  he  made  his 
appearance  at  the  sessions  this  14th  of  December,  and  gave  such 
security  in  order  to  his  future  trials  *  *  *.  London,  1676. 
True  narrative  of  the  proceedings  at  the  sessions-house  in  the  Old 
Bayly,  at  a  sessions  there  held  on  Wednesday  the  17th  of  Janu- 
ary 1676/7.  Giving  a  full  account  of  the  true  tryal  and  sentence 
of  Lodowick  Muggleton  for  blasphemous  words  and  books.  London. 
1676/7. 

A  looking  glass  for  George  Fox,  Quaker,  and  other  Quakers,  wherein 
they  may  see  themselves  to  be  right  devils  *  *  *. 
A  letter  presented  unto  alderman  Fowke;  page  264  of  a  book  that 
appears  to  be  without  title  page  but  is  bound  in  with  one  entitled 
A  volume  of  Spiritual  epistles  *  *  *.  This  re-printed  by  subscription 
in  the  year  1755  *  *  *  had  been  (previously  printed  *  *  *  1751, 
1752,  1753  *  *  *  Farrer,  James  Anson.  Books  condemned  to  be 
burnt,  pp.  115-116. 

Hyde,  James.    The  Muggletonians ;  New  Church  Review,  v.  7,  pp. 
215-227. 

Powell,    ,  True  account  of  trial.     1677.   [?] 

Discourse  *  *  *  on  a  charge  of  blasphemy.     1652.     [?] 

Letters  to  colonel  Phaire.     1681. 

Harleian  Miscel,  vols.  1  and  8. 

A  remonstrance   from   the   eternal   God  declaring  several  spiritual 

transactions  unto  parliament  and  commonwealth  of  England  unto 

his  excellency  the  Lord  General  Cromwell  the  council  of  State  and 

the  council  of  war.  *  *  *     Printed  in  the  year  1653  and  reprinted 

in  the  year  1719. 

A  true  interpretation  of  the  eleventh  chapter  of  the  revelation  of 

St.  John. 


288  BLASPHEMy. 


nappers  of  souls"  they  were  successful.     It  is  said  that 
the  sect  founded  by  them  is  still  in  existence. 

William  Reeve,  a  cousin,  converted  Muggleton  to  Puri- 
tanism. In  1650  he  was  attracted  to  John  Robins,  "a 
ranter,"  and  Thomas  Tany,  "a  predecessor  of  the  Anglo- 
Israelites."  Soon  he  began  to  receive  inward  revelations. 
John  Reeve,  another  cousin,  also  became  infected  and 
claimed  communications  "by  voice  of  words"  from  Jesus 
Christ.  The  two  came  forward  as  prophets  of  a  new  dis- 
pensation, with  authority  to  pronounce  upon  the  eternal 
fate  of  humans.  They  held  that  the  devil  was  a  human 
being,  witchcraft  a  delusion;  and  that  narratives  of 
miracles  were  mostly  parables. 

CRIME  TO  DENY  TRINITY. 

In  1652  they  published  their  "commission  book"  entitled 
"Transcendent  Spiritual  Treatise."  In  September,  1653, 
they  were  arrested  for  this  "charging  them  with  blas- 
phemy in  denying  the  trinity."  They  were  tried  before 
Lord  Mayor  John  Fowke  and  committed  to  Old  Bridewell 
for  six  months,  being  released  April,  1654.  It  will  illu- 
minate the  situation  if  we  will  enquire  a  little  more  in 
detail  into  the  blasphemous  doctrines  of  their  treatise. 

In  this  book  Muggleton  speaks  of :  "the  Man  Jesus,  the 
only  true  God."  Himself  and  Reeve  he  designates  as 
"the  Lord's  two  last  witnesses  and  prophets  that  ever  shall 
declare  the  mind  of  God,  the  Man  Jesus." 

A  phrase  used  in  that  book  is:  "the  Lord  Jesus  the 
only  wise  God."  Again:  "the  invisible  Creator  of  all 
life  and  spirits  was  a  God  of  glorious  substance,  a  Spiri- 
tual Body  in  the  form  and  likeness  of  a  man  from  all 
eternity."  Also:  "the  holy  angels  are  spiritual  bodies, 
in  their  persons  formed  like  men,"  and  are  inferior  to 
"elect  men,"  like  Muggleton  and  Reeve.  Further:  "You 
may  understand  that  God,  the  Father,  was  a  spiritual 
Man  from  eternity,  and  that  in  time  His  righteous  spiri- 
tual body  brought  forth  a  righteous  natural  body;  that 
the  Father,  to  show  his  infinite  love  and  humility,  and  to 
bring  forth  a  new  transcendent  glory  to  Himself,  might 


PROSECUTIONS    FOR   CRIMES   AGAINST   RELIGION.        289 

become  a  son,  yea  and  a  servant,  unto  His  creatures,  in 
the  very  condition  of  a  creature  for  a  season." 

Regarding  the  words  "I  and  my  Father  are  one,"  the 
explanation  is:  "His  spirit  living  within  His  body,  that 
was  the  Father;  and  his  visible  body,  that  was  the  Son, 
both  God  and  Man  in  one  person  and  so  but  one  personal 
God,  the  Man  Christ  Jesus." 

"They  teach  that  the  Father  to  whom  the  Lord  prayed 
was  Elijah.  It  was  Elias  that  spake  these  words,  'this 
is  my  beloved  Son  in  whom  I  am  well  pleased.' " 

To  disparage  another  view  of  the  Deity,  they  said :  "A 
God  of  words  only,  without  substanial  form,  a  bodiless 
form,  a  boxiiless  God  which  they  imagine  was  in  heaven 
when  the  Lord  Jesus  was  personally  on  this  Earth," 
whereas  the  "true"  doctrine  is:  "The  immortal,  eternal 
Creator  for  a  season  became  an  absolute  mortal  man  or 
creature,  sin  only  excepted."  An  appendix  by  Reeve  is 
entitled  "A  Cloud  of  Unerring  Witnesses,  plainly  prov- 
ing that  there  neither  is,  nor  ever  was,  any  other  God  but 
Jesus  Christ,  the  Lord."  In  this  Reeve  says:  "It  is  im- 
possible for  any  man,  from  Scripture  record,  or  any  way 
else,  to  prove  the  Creator  to  be  two  or  three  distinct 
essences,  because  of  His  threefold  name  of  Father,  Son 
and  Holy  Ghost,  or  Lord  Jesus  Christ,  as  it  is  to  prove  a 
man's  body  may  live  without  a  soul,  or  that  a  man  is  two 
or  three  distinct  essences,  because  he  is  styled  in  scripture 
records  by  a  three  fold  name  of  body,  soul  and  spirit." 

Thus  it  appears  that  Muggleton's  anti-trinitarianism 
was  little  more  than  a  war  of  words,  quite  void  of  ob- 
jective or  pragmatic  significance. 

In  one  of  his  published  letters  Muggleton  eternally 
curses  a  judge  for  blasphemy  in  denying  his  anthropo- 
morphic God  in  favor  of  one  that  is  more  mystical  and 
spiritual. 

CRIME  TO  ADVOCATE  TOLERATION. 

In  a  letter  to  a  recorder  who  sentenced  them^  these  de- 
fendants denied  his  jurisdiction,  declaring  that  God  had 
chosen  them  and  only  them  "to  be  judges  of  Blasphemy 
against  the  Holy  Spirit  because  no  man  clearly  knew  the 


290  BLASPHEMY. 

Lord  until  we  were  commissioned  by  Voice  of  Words  from 
Heaven  to  declare  what  the  true  God  is ;  yet  notwithstand- 
ing your  Honour,  with  the  Jury,  gave  Sentence  against 
us,  as  Blasphemers  because  we  declared  Jesus  Christ  to 
be  the  only  God,  in  heaven  or  in  earth,  but  the  Man 
Jesus  only  ♦  ♦  *  Whoever  tries  us  by  the  Law  of  the 
Land,  it  is  allowed  as  if  he  tried  his  God  by  the  Civil  Law 
as  the  Jews  did."  In  vain  the  judge  was  commanded  to 
reverse  the  judgment  of  the  jury  or  suffer  eternal  damna- 
tion. 

During  one  of  his  trials  Muggleton  was  questioned  about 
his  God,  and  his  answers  were  declared  hlasphemoiis  by 
the  judge.  Muggleton  had  said :  "We  told  you  that  you 
had  no  Commission  from  our  God  to  be  the  judge  of 
spiritual  things.  *  *  *  That  you  [the  judge]  by  your 
Commission  from  men  are  the  judge  of  temporal  things 
only  in  this  perishing  w^orld,  and  we  [Muggleton  and 
Reeve]  only  are  the  judges  of  Spiritual  Things,  that  are 
eternal  in  the  World  to  come,  by  a  Commission  from  the 
Throne  of  Glory,  from  the  glorious  Mouth  of  our  Lord 
Jesus  Christ." 

In  his  book,  "A  Looking  Glass  for  George  Fox,"  Mug- 
gleton says  that  reason  is  the  devil,  and  that  the  magis- 
trates who  sentence  him  are  reasonable  men.  He  adds: 
"But  this  I  must  tell  you,  that  when  reasonable  men  do 
judge  rightly  between  man  and  man  in  things  temporal, 
this  is  highly  esteemed  by  me,  and  warrantable  in  the 
sight  of  God;  but  for  reasonable  men  to  meddle  with  the 
Conscience  of  Men  that  breaketh  no  temporal  law,  this  is 
altogether  condemned  by  me  and  God  also." 

Although  in  Muggleton's  case  the  motive  and  intellec- 
tual process  by  which  he  arrived  at  his  conclusion  for 
mental  freedom  are  not  of  a  high  order,  yet  his  views  are 
sound  as  to  the  want  of  proper  criminal  jurisdiction  in 
the  courts  over  spiritual  (that  is  mere  psychologic)  con- 
cerns. Later  it  will  appear  that  this  was  in  harmony 
with  the  general  contention  of  dissenters.  Expressed  in 
modem  terms  it  means  that  secular  courts  cannot  sit  in 
judgment  for  crime  over  purely  psychologic  issues. 

These  statements  by  Muggleton  bring  into  bold  relief 


PROSECUTIONS    FOR   CRIMES   AGAINST   RELIGION.         291 

the  conflict  of  the  personal  lust  for  power  which  is  always 
involved  in  the  issue  between  intellectual  freedom  and 
censorship,  when  our  desires  are  functioning  on  the  lower 
evolutionary  levels.  The  demand  for  censorship  is  always 
psychogenetically  based  upon  such  an  immature  lust  for 
power.  In  Muggleton's  case,  it  appears  that  the  demand 
for  tolerance  was  similarly  conditioned.  In  others,  the 
demand  for  tolerance  may  find  its  justification  at  the 
highest  evolutionary  level  of  desire  and  mental  processes. 
When  so  conditioned  it  will  be  based  upon  a  desire  for 
social  service  and  for  progressing  democratization.  Our 
constitutional  guarantees  of  free  speech  and  religious 
liberty  were  designed  to  compel  tolerance  among  the  rela- 
tively undeveloped  in  order  to  promote  the  higher  order 
of  tolerance,  which  is  complete  intellectual  freedom  as  a 
conceded  and  constitutionally  guaranteed  right. 

When  we  come  to  summarize  all  prosecutions  for  blas- 
phemy it  will  be  shown  that  tlie  mere  advocacy  of  tolera- 
tion is  blasphemy  under  the  common  law  conception  of 
that  offence.  These  incidents  in  connection  with  the  trials 
of  Muggleton  exhibit  human  aversion  to  toleration  to  be 
grounded  in  a  competition  for  divine  prerogatives,  and 
'^spiritual"  vanity.  The  orthodox  spiritual  aristocrats 
believed  in  censoring  those  heretics  who  evidently  desired 
to  supercede  them.  The  first  believers  in  tolerance,  such 
as  Muggleton,  opposed  censorship  mainly  because  they 
claimed  in  themselves  more  of  the  divine  authority  than 
they  conceded  to  the  established  clergy.  This  conflict  be- 
tween aristocratic  contestants  for  spiritual  priveleges  has 
been,  in  modem  times,  superceded  by  a  demand  for  free 
speech  as  essential  for  the  further  democratization  of 
the  world.  When  this  larger  viewpoint  is  generally  at- 
tained by  our  judges  then  our  constitutional  interpreta- 
tion will  exhibit  the  larger  interest  and  confidence  in 
democracy  and  its  growth. 

Muggleton  and  Reeve  seem  to  have  suffered  a  second 
arrest  for  blasphemy  in  the  same  year  and  appear  to  have 
been  tried  before  Recorder  Steel,  October  14th  and  15th, 
1653. 

Muggleton  says:    "The  recorder  and  the  jury  did  pro- 


292  '  BLASPHEMY. 


nounce  us  [Muggleton  and  Reeve]  to  be  blasphemers,  for 
our  declaring  the  Man  Jesus  that  died  at  Jerusalem  and 
arose  from  Death  to  Life  by  his  own  Power,  to  be  the  only 
God  and  Everlasting  Father.  For  this  glorious  Truth's 
sake  which  they  call  Blasphemy,  they  have  committed  us 
to  Old  Bridewell,  there  to  remain  six  months  without  bail 
or  main-prize." 

Muggleton's  third  arrest  occurred  at  Chesterfield  in 
1663  at  the  instance  of  John  Coope  on  the  charge  of  deny- 
ing the  Trinity.  He  was  imprisoned  and  released  on  bail. 
The  account  does  not  state  what  became  of  the  case.  In 
1670,  Muggleton's  books  were  seized  in  London,  but  he 
evaded  arrest. 

In  hi®  "Looking  Glass  for  George  Fox,"  Muggleton  in- 
forms us  that  he  was  acquitted  at  Darby  after  justifying 
himself  to  the  Magistrate.  He  tells  us  that  the  thing  he 
was  accused  of  at  Darby  was  his  claim  of  power  to  damn 
and  to  save,  and  the  claim  that  he  was  one  of  the  two 
witnesses  spoken  of  in  Revelation  and  that  the  people's 
believing  the  Scripture  now,  they  being  damned  by  Mug- 
gleton, would  do  them  no  good.  Perhaps  the  magistrate 
had  a  sense  of  humor  not  possessed  by  the  judge  in  the 
next  case. 

Muggleton's  chief  controversies  were  with  the  Quakers 
whose  "bodiless  God"  was  the  antithesis  of  his  own  con- 
ception of  divinity. 

In  1675  as  executor  to  Deborah  Brunt  he  brought  suit 
for  some  property.  This  made  it  necessary  for  him  to  ap- 
pear in  the  spiritual  court  and  he  was  at  once  arrested  on 
the  charge  of  blasphemous  writings.  His  trial  took  place 
at  the  Old  Bayley,  Jan.  17, 1677,  before  Sir  Richard  Rains- 
ford,  chief  justice  of  the  King's  Bench.  He  was  con- 
victed on  the  book  "Neck  of  the  Quakers  Broken,"  it  being 
held  by  the  court  that  it  was  falsely  dated  as  if  published 
before  the  Act  of  Indemnity  of  1674,  though  in  fact  printed 
after.  His  attorney  refused  to  make  any  other  defense, 
for  shame  of  being  associated  with  Muggleton's  doctrines. 
Sentence  was  passed  by  Recorder  George  Jeffreys.  Mug- 
gleton was  amerced  500£,  condemned  to  the  pillory  on  three 
several  days  and  his  books  ordered  to  be  burned  before 


PROSECUTIONS   FOR   CRIMES   AGAINST   RELIGION.        293 

his  face.     He  was  imprisoned  in  Newgate  in  default  of 
the  fine,  and  released  in  July,  1677. 

Two  so-called  accounts  of  this  trial  have  been  published. 
One  author  tells  us  "it  makes  my  hair  stand  on  end  to 
rake  thus  in  the  Naucious  Dunghill  of  his  horrid  Blas- 
phemies. His  whole  volume  is  nothing  but  a  promiscuous 
composition  of  Heresie,  Delusion  and  Blasphemy."  This 
explosion  was  a  climax  following  upon  a  quotation  in 
which  Muggleton  claims  divine  authority  to  curse  humans 
in  the  name  of  God.  His  words  are:  "As  for  my  mouth 
being  full  of  cursing,  that  is  my  commission.  ♦  ♦  ♦ 
Full  of  his  Cursing  I  confess  my  mouth  is,  and  I  do  re- 
joice in  it,  too.  I  know  that  God  is  well  pleased  in  the 
damnation  of  those  I  have  cursed  and  I  am  wondrous 
well  satisfied  in  giving  judgment  upon  them  according  to 
the  Tenelt  of  my  condition.'' 

Here  then  blasphemy  of  the  most  offensive  type  con- 
sists in  a  frank  and  open  avowal  of  a  commission  to  pro- 
nounce divine  wrath  in  competition  with  the  "established'' 
monopolists.  Let  us  read  another  similar  paragraph  re- 
quoted  from  this  same  pamphlet.  These  are  perhaps  the 
most  offensive  samples  and  doubtless  for  that  reason  were 
selected  from  among  those  upon  which  the  criminal  charge 
was  based. 

"Neither  (says  he)  will  God  give  this  power  to  any  after 
me,  neither  can  any  man  come  to  the  assurance  of  the 
favour  of  a  God  now  in  these  days  but  in  believing  that 
God  gave  this  power  to  John  Eeeve  and  myself.  For  there 
is  no  coming  to  know  God  or  see  God,  but  by  the  faith  in 
this  Commission  of  the  spirit,  for  I  having  the  Keys  of 
Heaven  and  Hell,  none  can  get  into  Heaven  unless  the 
witness  of  this  spirit  doth  open  the  Gate.  ♦  ♦  ♦  Neither 
doth  any  man  know  the  Scripture,  neither  can  any  man 
interpret  them  truly,  but  myself.  ♦  ♦  ♦  God  hath  put 
the  two-edged  Sword  in  my  mouth,  that  whosoever  I  pro- 
nounce cursed,  is  cursed  to  Eternity."  All  this  was,  of 
course,  an  outrageous  challenge  to  the  legalized  claims  of 
the  elercry,  just  emerging  from  the  dark  ages.  From  that 
background,  it  was  extremely  blasphemous.     Is  a  statute 


294  BLASPHEMY. 


now  constitutional  which  sought  to  perpetuate  the  punish- 
ment for  such  harmless  pretentions  of  mental  illness? 

The  other  chronicler  of  Muggleton's  troubles  tell  us  of 
the  seizure  and  that  "many  wicked  passages  out  of  them 
being  recited  in  the  indictment,  but  so  horrid  and  blas- 
phemous, that  we  think  fit  to  spare  the  Christian  modesty 
of  each  pious  ear,  by  not  repeating  the  same." 

Muggleton  upon  this  trial  was  found  guilty  and  "sen- 
tenced to  stand  three  days  in  the  Pillory  at  three  most 
eminent  places  of  the  City,  with  Papers  showing  his  Crime; 
and  his  Books  so  seized,  divided  into  three  parts,  to  be 
burnt  over  his  head  upon  the  Pillory:  And  besides,  to 
be  fined  five  hundred  pounds,  and  to  continue  in  Gaol 
until  the  same  be  paid,  and  afterwards  for  his  life,  unless 
he  procured  good  Bail,  such  as  the  court  should  accept  of, 
and  not  of  his  own  Gang,  Faetion  or  Sect,  for  his  being  of 
the  good  Behaviour." 

In  his  "Divine  Looking-glass  or  Heavenly  Touchstone," 
first  printed  in  1656  and  reprinted  in  1760,  Muggleton  inti- 
mates that  Cromwell  has  a  secret  divine  appointment, 
through  Muggleton  himself  one  may  suppose. 

"The  perfidious  usurper,  conscious  to  himself  that  Mug- 
gleton could  not  be  greater  impostor  in  the  church  than 
he  was  in  the  state,  upon  consideration  of  fratres  in  malia 
restored  him  to  his  liberty." 


XVI. 

PROSECUTIONS  FOR  CRIMES 
AGAINST  RELIGION. 

1678—1706. 

One  of  the  Society  of  Love — 1678.^^ 
This  defendant  was  convicted  at  Stepney  and  sent  to 
Newgate,  May  28,  1678.  She  was  a  servant  of  "proper 
body  and  good  countenance."  From  childhood  she  had 
been  religious,  drifting  from  one  sect  to  another.  She 
finally  became  a  member  of  the  "Society  of  Love,"  by 
others  styled  ranters.  "They  soon  instilled  wild  notions 
int#  her  head,  which  she  has  ever  since  retained  impres- 
sions of,  and  upon  all  occasions  would  be  venting  their 
bold  Impious  Expressions  in  her  Discourses  and  Conver- 
sations. ♦  ♦  ♦  Always  a  great  Exclaimer  against  the 
established  Church,  and  a  haunter  of  privat^e  Conventicles. 
*  *  *  The  devil  at  last  screwed  her  up  to  that  height  of 
Impiety*  as  to  pretend  to  a  personal  and  familiar  Com- 
munion with  the  Deity  so  that  she  began  to  take  upon  her- 
self to  pronounce  whom  she  list  Damn'd  and  those  that 
pleased  her  Sav'd.  And  to  justifie  these  pretentions  ('tis 
said)  assumed  to  herself  the  Sacred  Attributes  of  God, 
and  sometimes  gave  out,  That  she  was  the  Virgin  Mary; 
at  other  times  Blasphemously  taking  upon  her  other  ador- 
able Names  and  Tytles.  But  that  which  particularly  and 
immediately  caused  her  present  Commitment  was  this: 
On  Wednesday,  the  29th  of  May,  the  Festival  justly  cele- 
brated with  publique  Divine  Worship,  as  the  Anniversary 
of  our  Sovereign  Lord  the  King's  Happy  Birth  and  mirac- 
ulous Kestoration ;  this  Woman  came  into  the  Church-Yard 
at  Stepney  and  there  beginning  an  Harangue  as  if  she 

•"  News  from  Newgate :  or  the  female  Muggletonian  being  an  account 
of  the  apprehension  and  commitment  of  a  certain  fanatical  woman, 
charged  with  speaking  several  horrid  blasphemous  words.  Taken 
at  Stepney  the  29th  of  May,  1678  *  *  *  London,  printed  for  P.  B. 
1678,  8p. 

A  true  narrative  of  the  proceedings  at  Sessions-house  in  the  Old 
Bailey  on  Oct.  3,  and  4  day  of  July,  1678  *  *  *  London,  printed, 
for  D.  M.  1678,  8p. 

295 


296  BLASPHEMY. 


would  preach  to  them,  soon  got  a  company  of  people  about 
her,  to  whom  she  uttered  several  blasphemous  and  detest- 
able expressions,  not  fit  here  to  be  related,  since  they  must 
needs  be  previous  in  the  repetition  to  any  good  Christianas 
ears;  at  first  they  concluded  her  to  be  distracted,  but  upon 
several  peoples  discoursing  with  her,  finding  Coherence 
in  her  talk,  and  offers  of  pretended  Reasons,  sometimes 
Texts  of  Holy  Scripture  truly  cited  and  readily  abused 
to  maintain  her  sayings,  and  that  no  argument  could 
reclaim  her,  or  Admonitions  persuade  her  to  desist,  they 
seized  her  and  carried  her  before  a  Majestrate,  where  per- 
sisting in  her  impious  Language,  and  pretending  to  Damn 
the  people,  &c.,  she  was  committed  to  Newgate. 

"Next  day  after  she  came  in  there,  a  Minister  went  to 
see  her,  to  whom  she  recounted  several  of  her  horrid 
speeches,  and  told  him.  He  was  certainly  Damned  if  he 
did  not  believe  her;  He  told  her  she  was  Mad,  and  seemed 
to  pitty  her;  Whereupon  she  Replyed:  Pltty  thy  self  and 
thine  own  soul,  I  am  not  Mad,  but  bear  witness  to  the 
truth,  and  thou  shalt  hear  me  affirm  the  same  things  when 
I  come  before  the  Bench;  To  another,  asking  her  if  she 
were  not  acquainted  with  Muggleton,  she  said,  Muggle- 
ton  was  not  worthy  to  unloose  tlie  Latches  of  her  Shoes, 
and  that  he  was  a  Deceiver,  and  she  would  Damn  him. 

"By  this  poor  Creature's  lamentable  delusion,  we  may 
observe  the  danger  of  an  unsettled  Faith  in  matters  of 
Religion,  and  to  what  pernitious  Ends  the  following  of 
New-fangled  Sects  and  Heresies  brings  may  weak  Melan- 
cholly  heads,  which  may  caution  all  to  learn  to  be  wise 
unto  Sobriety;  not  to  perplex  their  brains  with  Notional 
Extravagances,  but  in  an  humble,  though  not  Implicite 
Faith,  to  submit  to  the  Establisht  Church  of  England,  as 
directing  all  her  children  in  the  soundest  Path  of  Doc- 
trine, and  most  sober  form  of  Discipline  in  the  World. 
To  which  whoever  joyns  a  Holy,  Humble,  and  Charitable 
Conversation,  need  not  doubt  of  everlasting  Happiness; 
without  which  pious  life  all  Religion  is  vain :  And  there- 
fore as  we  should  endeavor  to  avoid  Heresies,  so  we  should 
also  forsake  Debaucheries,  and  gross  Impieties." 

This  then  ends  the  story  of  this  unnamed  blasphemer,  a 


PROSECUTIONS    FOR   CRIMES    AGAINST   RELIGION.         297 

poor  demented  woman.  I  have  added  the  homily  of  the 
pious  reporter  because  it  furnishes  a  good  sidelight  on  the 
spirit  of  the  times  and  its  ignorance. 

It  is  reported  that  on  a  subsequent  day  she  confessed 
"her  having  taken  upon  her  to  be  God,"  the  judge  gravely 
advised  her  to  repent  and  committed  her  to  jail  till  she 
should  furnish  a  bond  for  her  good  behavior. 

This  case  illustrates  that  part  of  the  blasphemy  law  as 
stated  by  Disney  thus :  "To  ascribe  *  *  *  to  any  creature 
an  Excellence  which  only  can  belong  to  God."  Naylor's 
case  was  of  the  same  sort.  If  this  blasphemy  law  were 
now  so  enforced,  it  would  cause  a  great  shrinkage  in  the 
population  of  our  asyluma 

John  Morgan— 1679.8» 

"One  John  Morgan  was  Indicted  on  the  Statute,  for 
that  being  born  a  Subject  of  England,  and  having  received 
Orders  from  the  See  of  Rome,  yet  he  came  into  and  re- 
mained in  England.  There  was  very  good  Evidence  that 
proved  he  was  a  Priest,  and  had  said  Mass,  but  as  for- 
merly, so  now  at  Bar  he  freely  confest  that  he  was  a 
Priest.  Some  say  he  was  heretofore  a  little  crazed  in  his 
Understanding,  which  was  probable  enough  by  his  Be- 
havior :  However,  the  Offence  being  evident,  according  to 
Law,  he  was  found  Guilty  of  Felony  and  High-Treason 
and  received  a  Sentence  to  be  Drawn,  Hanged  and  Quar- 
tered.'* 

No,  technically  this  was  not  a  prosecution  for  blas- 
phemy. It  was  a  precaution  against  probable  future  blas- 
phemy. If  our  constitutions  permit  punishment  for  blas- 
phemy, then  it  must  also  permit  the  anticipation  of  that 
offence  in  those  who  give  evidence  of  being  stubbornly  so 
inclined.  Then  we  may  of  course  apply  that  one  ounce  of 
prevention  which  is  superstitiouely  believed  to  be  always 
better  than  a  pound  of  cure. 

•A  true  narrative  of  the  proceedings  at  the  sessions  for  London 
and  Middlesex  Begun  April  30th,  1679  giving  an  account  of  the 
tryal  of  a  popish  priest  condemned  for  high  treason  ♦  *  *.  London, 
1679. 


298  BLASPHEMY. 


Henry  Care— 1680.^« 

In  1680,  in  the  case  of  Henry  Carr,  he  was  convicted 
of  High  Treason  to  destroy  the  King,  the  government, 
"and  the  sincere  religion  of  God  within  this  Kingdom  of 
England  well  and  piously  established,  to  destroy  and  sub- 
vert, and  the  Komish  religion  within  this  Kingdom  of 
England  to  introduce."  The  word  so  offensive  to  church 
and  state  were  only  these :  "There  is  lately  found  out  by 
an  experienced  physician,  an  incomparable  medicament, 
called  'The  Wonder-working  Plaister — ^truly  Catholic  in 
operation,  somewhat  of  kin  to  Jesuits'  Powder,  but  more 
effectual.  The  virtues  of  it  are  strange  and  various.  It 
will  make  justice  deaf  as  well  as  blind,  takes  out  spots  of 
deepest  treasons,  more  cleverly  than  Castile-soap  does 
common  stains.  It  alters  a  man's  constitution  in  two  or 
three  days,  more  than  the  virtuous  transfusion  of  blood 
in  seven  years.  Is  a  great  alexipharmic,  and  helps  poisons, 
and  those  that  use  them.  It  miraculously  exalts  and  puri- 
fies eyesight,  and  makes  people  behold  nothing  but  inno- 
cence in  the  blackest  malfactors.  It  is  a  mighty  cordial 
for  a  declining  cause,  stifles  a  plot  as  certainly  as  the  itch 
is  destroyed  by  butter  and  brimstone.  In  a  word  it  makes 
fools  wise  men,  and  wise  men  fools,  and  both  of  them 
knaves.  The  colour  of  this  precious  balm  is  bright  and 
dazzling,  and  being  applied  privately  to  the  fist  in  decent 
manner,  and  a  competent  dose,  infallibly  performs  all  the 
said  cures  and  many  others  not  fit  here  to  mention." 

In  the  judicial  opinion  I  find  this:  "When,  by  the 
King's  commandment  we  were  to  give  in  our  opinion  what 
was  to  be  done  in  print  of  regulation  of  the  press ;  we  did 
all  subscribe,  that  to  print  or  publish  any  news-books  or 
pamphlets  of  news  whatever ,  is  illegal;  that  it  is  a  mam- 
fest  intent  to  the  breach  of  the  peace,  and  they  may  be  pro- 
ceeded against  for  an  illegal  thing.  Suppose  now  that 
this  thing  is  not  scandalous,  what  then?  //  there  had 
heen  no  reflection  in  this  hook  at  all,  yet  it  is  illicite,  and 
the  author  ought  to  be  convicted  for  it." 


*«  Howell's   State  Trials,  v.  7:   1111-1130. 
Digest  of  the  law  concerning  libels  [1765]  p.  32-72. 


PROSECUTIONS    FOB   CRIMES    AGAINST   RELIGION.         299 

Underlying  all  such  reasoning  is  the  tacit  though  un- 
conscious assumption  of  approximate  or  relative  om- 
niscience in  the  privileged  ruling  caste,  whose  divine  right 
no  one  may  question  with  impunity,  even  by  offering  well 
meant  but  unsolicited  advice.  Before  the  rebellion  we  find 
the  same  unconscious  assumptions  made  in  some  slave 
states  where  all  effort  to  teach  the  negro  how  to  read  or 
write  was  x)€nalized.  Some  people  there  are  even  in  our 
relatively  democratic  time  and  country  who  still  resent 
the  education  of  both  negro  and  white  laborers.  Espe- 
cially is  this  so,  if  that  education  tends  to  induce  the 
laborer  to  question  the  perfect  justice  of  our  wage  system. 
In  all  these  cases  we  find  a  dominant  emotional  attitude, 
which  is  never  consciously  so  formulated  and  yet  amounts 
to  this:  those  who  are  the  beneficiaries  of  things  as  they 
are  have  something  akin  to  a  divine  property  right  in  the 
maintenance  in  statu  quo  of  the  sustaining  public  opinion. 
Thus  the  King's  Judges  argued  that  all  unauthorized  print- 
ing "of  news  whatever  is  illegal,"  even  though  "it  is  not 
scandalous."  Then  to  invent  a  theory  to  justify  the 
King's  desires,  the  judges  created  a  fiction,  and  declared 
it  as  a  theory  in  these  words :  "that  it  is  a  manifest  intent 
to  a  breach  of  the  peace."  So  blindly  are  we  lawyers 
habituated  to  precedent  that  many  follow  this  fiction  even 
to  this  day,  and  instead  of  determining  the  psychologic 
tendency  of  an  accused  idea  by  the  actual  and  visible 
resultant  facts,  we  are  still  content  to  indulge  our  feelings 
with  the  pretence  that  we  have  found  the  intent  and  tend- 
ency manifest  in  the  words.  The  legal  theory  seems  to  have 
made  little  progress.  Censorship  even  in  our  day  is  still 
justified  by  the  bald  assumption  of  an  evil  psychologic 
tendency,  toward  an  imaginary  and  prospective  breach  of 
the  peace.  Although  we  have  become  ashamed  to  apply 
this  constructive  breach  of  the  peace  as  freely  as  formerly, 
the  very  bringing  of  such  a  prosecution  as  that  now  before 
the  court  assumes  that  our  judges  are  still  willing  to  fol- 
low the  mediaeval  fiction  as  a  justification  for  upholding 
the  constitutionality  of  this  blasphemy  law. 


300  BLASPHEMY. 


Thomas  Delaune  and  Mr.  Ralphson — 1683.^^ 

These  defendants  were  arrested  Nov.,  1683,  for  "Plea  for 
the  Nonconformists,''  written  by  Thomas  Delaune. 

He  attempted  to  make  his  case  wholly  from  the  Scrip- 
tures and  all  was  written  in  the  best  conceivable  temper. 
But,  of  course,  in  basing  his  demand  for  tolerance  upon 
Holy  Writ,  he  necessarily  came  in  conflict  with  the  official 
interpretation  thereof.  The  indictment  reads  that  the  de- 
fendant, "not  regarding  his  due  allegiance,  but  contriving 
and  intending  to  disquiet  and  disturb  the  peace  and  com- 
mon tranquility  of  this  kingdom  *  *  *  to  bring  the  said 
Lord  the  King  into  the  greatest  hate  and  contempt  of  his 
subjects,  machinating  and  further  intending  to  move,  stir 
up,  and  procure  sedition  and  rebellion,  and  to  disparage 
and  scandalize  the  book  of  common  prayer,"  etc. 

The  following  were  the  most  offending  words  that  could 
be  found  to  place  in  the  indictment :  "The  Church  of  Rome 
and  England  also  are  great  transgressors  to  presume  to 
vary  from  Christ's  precepts,  in  altering  or  adding  to  the 
form  of  words,  expressed  by  Christ,  in  this  11th  of  Luke, 
for  so  they  have  done :  they  say,  forgive  us  our  trespasses 
as  we  forgive  them  who  trespass  against  us;  when  there 
are  no  such  words  in  Christ's  prayer,  his  words  are,  forgive 
us  our  sins  or  debts,  for  we  also  forgive  every  one  that  is 
indebted  to  us." 

"And  [says  the  indictment  again]  in  another  part  of 
the  said  libel  are  contained  these  false,  fictions,  seditious 
and  scandalous  sentences  following  viz.  'And  may  we  not 
say,  that  in  these  following  particulars,  we  do  not  sym- 
bolize with  idolatrous  Rome  herein?      First,  By  enjoin- 

**A  plea  for  the  non-confromists  showing  the  true  state  of  their 
case :  and  how  far  the  conformists  separation  from  the  church  of 
Rome,  for  their  popish  superstitions  &  introduced  into  the  service 
of  God,  justifies  the  non-conformists  separation  from  them.  *  *  * 
By  Thomas  De  Laune.  See  especially  pages  195-6-200,  Edition  of 
1800. 

A  narrative  of  the  sufferings  of  Thomas  De  Laune  for  writing  and 
printing  and  publishing  a  late  book  called  A  plea  for  the  non- 
conformists; with  some  modest  reflections  thereon,  directed  to  Dr. 
Calamy,  in  obedience  to  whose  call,  that  work,  was  undertaken.  By 
Thomas  De  Laune,  Printed  1712. 
Dictionary  of  National  Biography,  v.  14,  p.  316. 
Farrer,  James  Anson,  Books  condemned  to  be  burnt,  p.  ICO  to  134. 
Eikoon  Ton  Therou  or  the  image  of  the  Beast,  p.  111. 


PROSECUTIONS    FOR   CRIMES   AGAINST    RELIGION.         301 

ing  and  imposing  this  viz.  meaning  the  book  of  common 
prayer  aforesaid,  as  a  set  form ;  as  they  do  with  penalties, 
contrary  to  the  Scripture.  Secondly,  By  an  often  repeti- 
tion of  the  same  form  in  the  same  exercise,  three  or  four 
times  at  least;  insomuch,  that  in  the  cathedral  churches, 
it  is  said,  or  sung,  ten  or  twelve  times  a  day,  contrary  to 
Christ's  express  words,  that,  when  we  pray,  we  do  not 
make  vain  repetitions  as  the  heathen  do,  for  they  think 
they  shall  be  heard  for  their  much  speaking.  Thirdly,  By 
enjoining  the  whole  congregation,  men  and  women,  to  re- 
peat the  same  after  the  priest,  though  no  such  direction 
by  Christ:  nay,  he  forbids  women  to  pray  or  prophesy  in 
the  church.  Fourthly,  In  singing  this  prayer  in  the  cathe- 
drals by  responses  of  the  people,  without  the  least  warrant 
from  Christ  for  such  song-praying'." 

The  Chief  Justice  refused  to  allow  the  context  of  these 
extracts  to  go  the  Jury,  and  upon  mere  admission  of  the 
act  of  publication  the  Jury  was  instructed  that  they  must 
find  the  defendant  guilty ;  the  question  of  its  being  a  libel 
being  one  purely  for  the  court.  The  defendant  was  fined 
100  marks  a  sum  he  could  not  pay,  and  to  be  imprisoned 
till  paid  and  to  good  security  for  his  good  behavior  for 
one  year. 

The  judge  said  that  out  of  respect  for  their  education, 
the  defendants  (being  teachers)  as  scholars,  should  not  be 
pilloried  though  he  believed  they  deserved  it. 

"His  books  (for  he  also  wrote  The  Image  of  the  Beast, 
wherein  he  showed,  in  three  parallel  columns,  the  far 
greater  resemblance  of  the  Catholic  rites  to  those  of  Pagan 
Rome  than  to  those  of  the  New  Testament)  were  con- 
demned to  be  burnt;  and  his  judges,  humane  enough  to 
let  him  off  the  pillory  in  consideration  of  his  education, 
sent  him  back  to  Newgate  notwithstanding  it.  There,  in 
that  noisome  atmosphere  and  in  that  foul  company,  he 
was  obliged  to  shelter  his  wife  and  two  small  children; 
and  there,  after  fifteen  months,  he  died,  having  first  seen 
all  he  loved  on  earth  pine  and  die  before  him.  And  he 
was  only  one  of  eight  thousand  other  Protestant  Dis- 
senters who  died  in  prison  during  the  merry,  miserable 
reign  of  Charles  II. !    Of  a  truth.  Dissent  has  something 


302  BLASPHEMY. 


to  forgive  the  church ;  for  persecution  in  Protestant  Eng- 
land was  very  much  the  same  as  in  Catholic  France,  with, 
if  jmssible,  less  justification. 

"The  main  argument  of  Delaune's  book  was,  that  the 
Church  of  England  agreed  more  in  its  rites  and  doctrines 
with  the  Church  of  Rome,  and  both  Churches  and  Pagan 
or  preChristian  Rome,  than  either  did  with  the  primitive 
Church  or  the  word  of  the  Gospel — a  thesis  that  has  long 
since  become  generally  accepted ;  but  his  main  offence  con- 
sisted in  saying  that  the  Lord's  Prayer  ought  in  one  sen- 
tence to  have  been  translated  precisely  as  it  now  has  been 
in  the  Revised  Version,  and  in  contending  that  the  frequent 
repetition  of  the  prayer  in  church  was  contrary  to  the  ex- 
press command  of  Scripture.  On  these  and  other  points 
Delaune's  book  was  never  answered — for  the  reason,  I  be- 
lieve, that  it  never  could  be.  After  the  Act  of  Toleration 
(1689)  it  was  often  reprinted;  the  eighth  and  last  time  in 
1706,  when  the  High  Church  movement  to  persecute  Dis- 
sent had  assumed  dangerous  strength,  with  an  excellent 
preface  by  Defoe,  and  concluding  with  the  letters  to  Dr. 
Calamy,  written  by  Delaune  from  Newgate.  Defoe  well 
points  out  that  the  great  artifice  of  Delaune's  time  was  to 
make  the  persecution  of  Dissent  appear  necessary,  by  rep- 
resenting it  as  dangerous  to  the  State  as  well  as  the 
Church." 

Richard  Baxter— 1684.^^ 

Many  of  the  older  members  of  every  English  speaking 
community  must  have  come  somewhat  under  the  influence 
of  Baxter's  "Saints  Everlasting  Rest"  and  many  will  no 
doubt  be  surprised  to  find  that  this  super-pious  author's 

"King  V.  Baxter,  3  Modern  Reports,  68-69. 
Life  of  the  Reverend  Mr.  Baxter,  third  part,  pp.  123,  175,  198. 
The  certainty  of  the  world  of  spirits.     Fully  evidenced  by  unques- 
tionable histories  of  apparitions  and  witchcrafts,  operations,  voices, 
etc.,  proving  the  immortality  of  souls,  the  malice  and  miseries  of 
the   devils    and   the   damned   and   the  blessedness   of   the   justified. 
Written  for  the  conviction  of  Sadduces  and  infidels.    London,  1691. 
Howell's,  State  trials,  vol.  11,  p.  493. 
Digest  of  the  law  concerning  libels,  (1765)  pp.  10,  11,  118. 
Life  of  Richard  Baxter,  (American  Tract  Society),  pp.  105-114. 
Elisha's  cry  for  Elisha's  god,  p.  15. 
A  paraphrase  upon  the  new  Testament. 
Vickers,  Robert  H.    Martyrdoms  of  Literature,  p.  381. 


PROSECUTIONS    FOR   CRIMES   AGAINST    RELIGION.         303 

religious  opinions  could  and  did  make  him  a  criminally 
seditious  person.  Baxter  was  a  voluminous  controver- 
sialist. He  was  an  intimate  friend  of  Sir  Mathew  Hale, 
and  wrote  a  book  defending  witchcraft,  in  which  both  evi- 
dently believed. 

Baxter  often  came  into  conflict  with  the  conventicle  law 
against  the  Dissenters.  However,  these  cases  nominally 
did  not  concern  his  religious  opinion.  Those  laws  did  not 
make  the  criteria  of  guilt  depend  upon  the  tendency  of  the 
opinion,  but  such  a  tendency  was  still  the  justification  for 
the  statute  against  the  right  of  assembly.  The  case  with 
which  we  are  concerned  deals  more  directly  with  the  re- 
ligious opinions  of  Baxter  and  their  dangerous  tendency 
toward  sedition.  The  prosecution  was  founded  upon  "A 
Paraphrase  upon  the  New  Testament."  He  wrote  this 
book  partly  to  explain  an  earlier  one,  his  "Treatise  of 
Episcopacy,"  which  had  been  much  misunderstood.  To 
be  impartial  in  his  criticism  of  opponents  he  attached  "two 
pieces  against  Dr.  Sherlock  that  ran  quite  into  the  con- 
trary Extremes,  unchurching  almost  all  Christians  as 
Schisma ticks."  He  adds :  "I  wrote  so  sharply  against  him 
as  must  needs  be  liable  to  blame  with  those  who  know 
not  the  man,  and  his  former  and  later  Virulent  and  igno- 
rant Writings." 

The  information  charged  the  defendant  with  writing 
"A  Paraphrase  upon  the  New  Testament",  intending  there- 
by to  bring  the  protestant  religion  and  likewise  the  Bishops 
of  England  into  contempt.  He  was  found  guilty,  fined 
500£  and  required  to  give  security  for  good  behaviour. 
He  was  unable  to  pay  his  fine  or  thought  it  useless,  because 
new  excuses  for  his  re-arrest  would  be  invented.  So  he 
served  about  two  years  of  his  sentence  when  he  was  re- 
leased as  larger  liberty  was  accorded  to  Dissenters  gen- 
erally. 

Baxter  was  tried  by  the  blood-loving  Jeffries.  Calamy 
has  preserved  for  us  a  good  pen-picture  of  this  trial.  One 
may  well  wonder  if  this  was  Jeffries  at  his  worst.  It  is 
difficult  to  conceive  of  a  more  malignant  spirit  than  he 
exhibited  on  this  occasion.  His  associates  however,  pre- 
vented the  penalty  of  whipping. 


304  BLASPHEMY. 

In  this  case  Baxter's  blasphemies  were  not  against  God 
but  against  the  orthodox  established  conception  of  Chris- 
tianity and  its  Bishops,  so  Jeffries  called  it  sedition. 

Another  author  comments  thus  on  this  case:  "There 
was  just  room  in  Baxter's  case  for  the  defendant  pretend- 
ing that  he  meant  not  Protestant  Bishops,  but  Popish." 
But  that  did  not  save  him.  "It  is  observable  with  what 
Discernment  the  Managers  of  tl\is  prosecution  proceeded. 
In  a  Book  of  Controversy,  as  this  was,  there  was  Scope 
to  punish  the  Author  for  a  Schismatical  Libel,  a  new  Term 
of  Art  which  some  People  have  attempted  to  bring  into 
use;  but  they  very  wisely  thought  the  religious  Dispute 
unfit  for  the  Cognizance  of  Lay  Heads,  and  only  urged 
against  the  Defendant  the  Satyr  upon  the  Bishops,  who 
are,  in  our  State,  great  OflScers,  and  make  up  a  part  of 
our  Constitution." 

Baxter's  "Holy  Commonwealth  or  Political  Aphorisms 
opening  the  true  principles  of  government,"  London,  1659, 
was  also  burned  at  Oxford,  in  1688. 

Words  against  the  Bishoprics  are  words  against  the 
government  as  well  as  against  God.  If  we  are  possessed 
by  sympathetic  emotions  toward  any  church  our  desire  to 
suppress  critics  will  be  proportionately  strong.  Much  de- 
sire and  lively  imagination  will  create  in  such  persons  a 
necessity  for  believing  that  the  offensive  doctrine  tends 
to  a  disturbance  of  the  peace.  Whether  now  you  call  it 
sedition  or  blasphemy  is  utterly  unimportant  except  as  a 
matter  of  eflficiency  in  securing  the  approval  of  others  by 
adjusting  the  intellectualization  of  our  desire  to  the  domi- 
nant prejudices  of  others. 

Does  constitutional  free  speech  now  mean  that  perhaps 
under  some  name  other  than  blasphemy,  the  legislature 
may  still  penalize  the  theologic  offence  of  criticising  the 
offices  of  bishops  or  priests  without  such  criticism  having 
resulted  in  any  actual  or  material  injury  to  person  or 
estate  of  any  particular  ecclesiast? 


prosecutions  for  crimes  against  religion.      305 

Arthur  Bury — 1690.^^ 

Arthur  Bury  (1624-1714)  w'as  a  graduate  of  Exeter  and 
received  degrees  at  Oxford.  In  1648  he  learned  to  know 
what  it  was  to  be  led  from  his  college  by  a  file  of  mus- 
keteers and  forbidden  to  return  to  Oxford  or  his  fellow- 
ship under  pain  of  death,  because  he  had  the  courage  in 
those  day  to  read  the  prayers  of  the  church.  On  the 
recommendation  of  Archbishop  Sheldon,  he  became  rector 
of  Exeter  College,  1866.  He  was  ousted  with  approval  of 
the  House  of  Lords,  Dec.  10,  1694. 

"Oxford  University  has  always  tempered  her  love  for 
learning  with  a  dislike  for  inquiry,  and  set  the  cause  of 
orthodoxy  above  the  cause  of  truth.  This  phase  of  her 
character  was  never  better  illustrated  than  in  the  case  of 
The  Naked  Gospel,  *  *  *  A  high  value  attaches  to  the 
first  edition  of  this  book,  wherein  the  author  essayed  to 
show  what  the  primitive  Gospel  really  was,  what  altera- 
tions had  been  gradually  made  in  it,  and  what  advantages 
and  disadvantages  had  therefrom  ensued.  ♦  ♦  ♦  His  mo- 
tive was  the  promotion  of  that  charity  and  toleration  which 
breathes  in  every  page." 

Like  most  of  the  religious  libertarians  of  his  time  he 
made  the  emphasis  on  the  absence  of  state  jurisdiction 
rather  than  considerations  of  expediency.  He  said:  "No 
King  is  more  independent  in  his  own  dominions  from  any 
foreign  jurisdiction  in  matters  civil,  than  every  Christian 
is  within  his  own  mind  in  matters  of  faith.'' 

It  must  have  been  his  advocacy  of  tolerance  that  gave 
offence.  This  is  inferred  from  the  fact  that  in  the  second 
edition,  evidently  to  minimize  or  eliminate  his  offence  he 
omitted  such  passages  as  this:  "The  Church  of  England, 
as  it  needs  not,  so  it  does  not  forbid  any  of  its  sons  the 
use  of  their  own  eyes;  if  it  did  this  alone  would  be  suffi- 
cient reason  not  only  to  distrust  but  to  condemn  it." 

Bury  sums  up  the  doctrine  of  his  book  "in  two  pre- 
cepts— believe  and  repent."    So  simple  and  tolerant  a  re- 

*' Dictionary  of  National  Biography,  v.  8,  p.  22. 
Farrer,  James  Anson.    Books  condemned  to  be  burnt.     141-143. 
An  historical  evidence  of  the  naked  gospel. 
Vickers,  Robert  H.    Martyrdoms  of  literature,  p.  383. 


306  r.LAt^niEMY. 


iigion,  was  so  offensive  that  its  expression  was  destroyed 
by  fire.  Must  we  still  express  our  aversion  by  now  declar- 
ing such  doctrines  to  be  blasphemous? 

Charles  Blount — 1693.^* 

Charles  Blount  (1654-1693)  had  for  a  father  "Sir  Henry 
Blount,  the  Socrates  of  the  age.''  The  son  was  clever, 
scholarly  in  a  sense,  and  a  "most  unscrupulous  plagiar- 
ist", an  extreme  whig  and  a  deist.  As  a  deist,  however, 
he  was  extremely  conservative,  believing  deism  true  but 
unsafe  without  an  admixture  of  Christianity. 

In  1675  he  published  "Anima  mundi."  He  professes  to 
present  nothing  on  his  own  authority,  but  acts  as  a  re- 
porter. "As  the  lustre  of  an  Oriental  Diamond  is  more 
clearly  perceived,  when  compared  with  counterfeit  Stones ; 
so  Christianity  appears  in  its  greatest  Glory  and  Splendor, 
when  compared  with  the  obscurity  of  Paganism,''  so  he 
began.  "If  any  had  stronger  Arguments  to  Justify  their 
Opinion  than  the  other,  blame  not  me  who  deliver  them 
but  recitative,  and  am  as  it  were  their  Amenuensis,  with- 
out ever  concerning  myself  with  the  intrinsick  value  of 
their  Doctrine,"  so  he  explains  in  the  preface. 

That  is  the  spirit  in  which  the  book  was  conceived, 
though,  of  course,  there  was  a  "dangerous  tendency"  in 
thus   presenting   fairly   the   contentions   and   supporting 

"Blount,   Charles.     A   just   vindication  of   learning  and  the   liberty 
of  the  press.     London  1605,  24p. 

Reasons  humbly  offered  for  the  liberty  of  unlicensed  printing  [to 
which  is  appended:]  A  just  and  true  character  of  Edmund  Bohum 
[the  licenser  of  the  day]. 

Vie  d'Apollonius  *  *  ♦  avec  les  commentaries  donnes  en  Anglois 
par  C.  B.,  etc. 

Gorton,  John.     A  general  biographical  dictionary. 
An  account  of  Mr.  Blount's  late  book  entitled  King  William  and 
Queen  Mary  Conquerors,  ordered  by  the  house  of  commons  to  be 
burnt.     London,  1693. 

Dictionary  of  national  biography,  v.  5,  p.  243. 
Biographical  dictionary,  vol.  5,  pp.  418-422. 
Vickers,  Robert  H.    Martyrdoms  of  literature,  p.  383. 
Leland,  John.     A  view  of  deistical  writers  that  have  appeared  in 
England  in  the  last  and  present  century  *  *  *  London,  1754-56. 
Macaulay,   Thomas    B.     History   of   England,   Chap.   XIX;   vol.   4, 
pp.  282  to  289,  Phila.     1877  edition. 

Anima  mundi ;  or,  an  historical  narration  of  the  opinions  of  the 
ancients  concerning  man's  soul  after  this  life;  according  to  unen- 
lightened nature.     London,  1675.     Also  1679. 


PROSECUTIONS    FOR   CRIMES    AGAINST    RELIGION.         307 

argument®  of  the  ancients  whose  views  conflicted  with 
legalized  orthodoxy.  Doubtless  this  deist  also  hoped  that 
such  enlightenment  would  have  its  natural  effect,  toward 
rationalizing  Christianity.  Compton,  the  bishop  of  Lon- 
don, was  quick  to  scent  the  danger  and  ordered  the  book 
suppressed.     It  was  subsequently  publicly  burnt. 

In  1680  Blount  published  the  most  celebrated  of  his 
works,  a  translation:  "The  Life  of  Apolonius  Tyaneus", 
in  folio,  extracted  from  the  two  first  books  of  Philestratus, 
with  his  own  notes.  "This  too  was  considered  so  danger- 
ous a  work  that  its  suppression  was  at  once  determined 
on.''  Unfortunately  this  book  was  not  accessible,  so  can- 
not now  be  described.  The  offence  probably  consisted  in 
some  hints  against  the  miracles  of  Jesus. 

"It  was  held  to  be  the  most  dangerous  attempt,  that 
had  been  ever  made  against  revealed  religion  in  this  coun- 
try, and  justly  thought  so,  as  bringing  to  the  eye  of  every 
English  reader  a  multitude  of  facts  and  reasonings,  plaus- 
ible in  themselves,  and  of  the  fallacy  of  which  none  but 
men  of  parts  and  learning  can  be  proper  judges." 

This  exhibits  to  perfection  the  undemocratic  attitude  of 
all  those  who  oppose  intellectual  liberty.  Because  the 
common  people  cannot  be  entrusted  to  reach  orthodox  con- 
clusions, therefore  they  must  be  denied  opportunity  for 
that  development  which  depends  on  practice. 

These  conflicts  with  the  censorship  made  Blount  an 
aggressive,  as  he  proved  an  efl&cient  opponent  of  the  sys- 
tem and  of  Bohum  the  censor.  Accordingly,  Blount  wrote 
his  "King  William  and  Queen  Mary  Conquerors,"  but 
anonymously.  In  it  he  cleverly  defended  the  extremely 
conservative  toryism  of  the  censor.  Blount  the  republican 
succeeded  in  personating  a  high  tory;  Blount  the  deist 
effectively  personated  a  high  churchman.  The  licenser 
joyously  authorized  the  publication,  and  so  fell  into  the 
trap  that  had  been  cleverly  baited  for  him. 

Only  four  days  after  its  publication  the  House  of  Com- 
mons took  up  the  matter,  and  not  knowing  the  author, 
proceeded  against  the  licenser.  The  King  was  requested 
to  remove  Bohum,  the  Commons  imprisoned  him,  and  the 
book  was  ordered  burnt.     It  could  not  be  tolerated  that 


308  BLASPHEMY. 


a  licenser  should  authorize  anything  that  savored  of 
popery. 

Next  came  "A  Just  vindication  of  Learning"  and  then 
"Reasons  for  Liberty  of  Unlicensed  Printing."  In  1693 
this  latter  book  was  also  ordered  to  be  burnt  by  the  hang- 
man. This  too  is  now  inaccessible  to  me.  The  facts  sug- 
gest the  religious  fear  of  arguments  for  enlarging  toler- 
ance. 

Blount's  work  was  an  important  factor  toward  killing 
the  licensing  statute. 

Thomas  Aikenhead^s  (or  Aiken^s)  Case — 1695.*^ 
This  is  the  single  instance  to  be  found  of  capital  punish- 
ment for  blasphemy  under  the  Scotch  statutes.  The  in- 
dictment there  was  said  to  be  founded  "on  the  law  of 
God,  the  law  of  this  and  all  other  well  governed  realms, 
and  specially  the  21st  Act,  1st  Pari.  Ch.  2,  and  the  11th 
Act,  5th  Sess.  of  1st  Pari.  Will,  iii;"  and  it  charged  (inter 
alia)  that  the  defendant  (pannel)  had  called  the  Old 
Testament  Ezra's  Fables  (profanely  alluding  to  Aesop's 
Fables).  Christ  an  imposter,  who  had  learned  magic  in 
Egypt,  etc. ;  that  he  rejected  the  mysteries  of  the  Trinity 
and  Incarnation;  maintained  that  God,  the  vrorld,  and 
nature,  were  the  same  thing ;  preferred  Mohomet  to  Jesus ; 
hoped  he  should  see  Christianity  extirpated,  etc.  The 
court  found  "Cursing  and  railing  upon  any  of  the  Per- 
sons of  the  blessed  Trinity  relevant  to  infer  the  pains  of 
death;  and  the  other  crimes  likewise  relevant  to  infer  an 
arbitrary  punishment ;"    The  accused  was  hung. 

Hume  comments  upon  his  case  as  follows:  "It  appears 
to  have  been  tried  with  vigorous  disposition,  not  on  the 
part  of  the  Court  but  of  the  Assize,  who  found  the  pannel 
guilty  of  railing  at  and  cursing  Christ,  without  proof  of 

'"  HowelFs  State  Trials,  v.  13,  pp.  917-938. 
Hume  on  crimes,  v.  2,  c.  19,  p.  570.^ 

Coulson,  H.  J.  W.    The  law  relating  to  blasphemy.  Law  Magazine 
and  Review,  v.  9,  p.  165. 

Gordon,  John.    Thomas  Aikenhead.    A  historical  review  in  relation 
to  Mr.  Macaulay  and  the  witness. 

Macaulay,  Thomas  B.     The  history  of  England,  v.  5,  pp.  226-229, 
Chicago  1890.     Citing  also  Postman,  Jan.  9-19,  1696-7. 
MacLauren's  arguments  and  decisions  in  remarkable  cases,  p.   12, 
A.  D.  1774. 


PROSECUTIONS    FOR   CRIMES   AGAINST    RELIGION.         309 

Ms  having  done  so,  and  only  upon  inference  from  opinions 
occasionally  vented/' 

Macaulay  gives  this  account: 

"A  student  of  eighteen,  named  Thomas  Aikenhead, 
whose  habits  were  studious  and  whose  morals  were  irre- 
proachable, had,  in  the  course  of  his  reading,  met  with 
some  of  the  ordinary  arguments  against  the  Bible.  He 
fancied  that  he  had  lighted  on  a  mine  of  wisdom  which 
had  been  hidden  from  the  rest  of  mankind,  and,  with  the 
conceit  from  which  half -educated  lads  of  quick  part®  are 
seldom  free,  proclaimed,  his  discoveries  to  four  or  five  of 
his  companions.  Trinity  in  unity,  he  said,  was  as  much 
a  contradiction  as  a  square  circle.  Ezra  was  the  author 
of  the  Pentateuch.  The  Apocalypse  was  an  allegorical 
book  about  the  philosopher's  stone.  Moses  had  learned 
magic  in  Egypt.  Christianity  was  a  delusion  which  would 
not  last  till  the  year  1800.  For  this  wild  talk,  of  which, 
in  all  probability,  he  would  himself  have  been  ashamed 
long  before  he  was  five  and  twenty,  he  was  prosecuted  by 
the  Lord  Advocate.  The  Lord  Advocate  was  that  James 
Stewart  who  had  been  so  often  a  Whig  and  so  often  a 
Jacobite  that  it  is  difficult  to  keep  an  account  of  his 
ai)ostasies.  He  was  now  a  Whig  for  the  third,  if  not  for 
the  fourth,  time.  Aikenhead  might  undoubtedly  have 
been,  by  the  law  of  Scotland,  punished  with  imprisonment 
till  he  should  retract  his  errors  and  do  penance  before  the 
congregation  of  his  parish;  and  every  man  of  sense  and 
humanity  would  have  thought  this  sufficient  punishment 
for  the  prate  of  a  forward  boy.  But  Stewart,  as  cruel  as 
he  was  base,  called  for  blood.  There  was  among  the  Scot- 
tish statutes  one  which  made  it  a  capital  crime  to  revile 
or  curse  the  Supreme  Being  or  any  person  of  the  Trinity. 
Nothing  that  Aikenhead  had  said  could,  without  the  most 
violent  straining,  be  brought  within  the  scope  of  this 
statute.  But  the  Lord  Advocate  exerted  all  his  subtlety. 
The  poor  youth  at  the  bar  had  no  counsel.  He  was  con- 
victed and  sentenced  to  be  hanged  and  buried  at  the  foot 
of  the  gallows.  It  was  in  vain  that  he  with  tears  abjured 
his  errors  and  begged  piteously  for  mercy.  Some  of  those 
who  saw  him  to  his  dungeon  believed  that  his  recanta- 


310  BLASPHEMY. 


tion  was  sincere;  and  indeed  it  is  by  no  means  improbable 
that  in  Mm,  as  in  many  other  pretenders  to  philosophy 
who  imagine  that  they  have  completely  emancipated  them- 
selves from  the  religion  of  their  childhood,  the  near  pros- 
pect of  death  may  have  produced  an  entire  change  of 
sentiment.  He  petitioned  the  Privy  Council  that,  if  his 
life  could  not  be  spared,  be  might  be  allowed  a  short  re- 
spite to  make  his  peace  with  the  God  he  had  offended. 
Some  of  the  Councillors  were  for  granting  this  small  in- 
dulgence. Others  thought  that  it  ought  not  to  be  granted 
unless  the  ministers  of  Edinburgh  would  intercede.  The 
two  parties  were  evenly  balanced;  and  the  question  was 
decided  against  the  prisoner  by  the  casting  vote  of  the 
Chancellor.  The  Chancellor  was  a  man  who  has  been 
often  mentioned  in  the  course  of  this  history,  and  never 
mentioned  with  honour.  He  was  that  Sir  Patrick  Hume 
whose  deputations  and  factious  temper  had  brought  ruin 
on  the  expedition  of  Argyle,  and  had  caused  not  a  little 
annoyance  to  the  government  of  William.  In  the  Club 
which  had  braved  the  King  and  domineered  over  the  Par- 
liament there  had  been  no  more  noisy  republican.  But  a 
title  and  a  place  had  produced  a  wonderful  conversion. 
Sir  Patrick  was  now  Lord  Polworth:  he  had  the  custody 
of  the  Great  Seal  of  Scotland:  he  presided  in  the  Privy 
Council ;  and  thus  he  had  it  in  his  power  to  do  the  worst 
action  in  his  bad  life. 

"It  remained  to  be  seen  how  the  clergy  of  Edinburgh 
would  act.  That  divines  should  be  deaf  to  the  entreaties 
of  a  penitent  who  asks,  not  for  pardon,  but  for  a  little 
more  time  to  receive  their  instructions  and  to  pray  to 
Heaven  for  the  mercy  which  cannot  be  extended  to  him 
on  earth,  seems  almost  incredible,  yet  so  it  was.  The 
ministers  demanded  not  only  the  poor  boy's  death,  but 
his  speedy  death,  though  it  should  be  his  eternal  death. 
Even  from  their  pulpits  they  cried  out  for  cutting  him 
off.  It  is  probable  that  their  real  reason  for  refusing  him 
a  respite  of  a  few  days  was  their  apprehension  that  the 
circumstance  of  his  case  might  be  reported  at  Kensing- 
ton, and  that  the  King,  who,  while  reciting  the  Corona- 
tion Oath,  had  declared  from  the  throne  that  he  would 


PROSECUTIONS    FOR   CRIMES   AGAINST    RELIGION.         311 

not  be  persecutor,  might  send  down  positive  orders  that 
the  sentence  should  not  be  executed.  Aikenhead  was 
hanged  between  Edinburgh  and  Lreith.  He  professed 
deep  repentence  and  suffered  with  the  Bible  in  his  hand. 
The  people  of  Edinburgh,  though  assuredly  not  disposed 
to  think  lightly  of  his  offence,  were  moved  to  compassion 
by  his  youth,  by  his  penitence,  and  by  the  cruel  haste 
with  which  he  was  hurried  out  of  the  world.  It  seems 
that  there  was  some  apprehension  of  a  rescue,  for  a  strong 
body  of  fusileers  was  under  arms  to  support  the  civil 
power.  The  preachers,  who  were  the  boy's  murderers, 
crowded  round  him  at  the  gallows,  and  while  he  was  strug- 
gling in  the  last  agony,  insulted  Heaven  with  prayers  more 
blasphemous  than  anything  that  he  had  ever  uttered. 
Wodrow  has  told  no  blacker  story  of  Dundee.'' 

Do  our  constitutional  guarantees  of  free  speech  and 
religious  liberty  leave  open  the  door  of  legislative  power, 
so  that  such  conduct  can  again  be  thus  punished  or  pun- 
ished at  all? 

Patrick  Kinnymount — 1697.*^ 

In  this  case  of  blasphemy  the  court  stated  the  law  in 
part  as  follows :  "That  whoever  shall  deny  God,  or  any  of 
the  persons  of  the  blessed  Trinity,  and  obstinately  continue 
therein,  shall  be  in  like  manner  punished  by  death ;  ♦  *  ♦ 
Whosoever  shall  in  their  wryting  or  discourse  deny,  im- 
pugne,  or  quarrel,  argue  or  reasone,  against  the  Being  of 
God  or  any  of  the  persones  of  the  blessed  Trinity,  or  the 
authority  of  the  Holy  Scriptures,  or  the  providence  of  God, 
in  the  government  of  the  World,  shall  be  punished  with 
the  paines  contained  in  the  said  act." 

The  defendant  denied  having  used  the  words  alleged 
against  him  and  vehemently  expressed  his  horror  of  such 
sentiments.  He  also  plead  drunkenness  and  the  insuffi- 
ciency of  the  indictment.  For  the  present  purpose  the 
statement  of  the  court  as  to  the  law  is  the  only  matter  of 
interest. 

^•Law  Magazine  and  Review,  v.  9,  p.  165. 
Howell's,  State  trials,  vol.  13,  p.  1274. 


312  BLASPHEMY. 


Eev.  John  Toland— leOT.^"^ 

John  Toland  (1670-1722)  is  believed  by  many  to  have 
been  the  illegitimate  son  of  a  priest.  Raised  a  catholic  he 
became  a  deist  of  great  distinction.  Educated  by  dissen- 
tors  he  graduated  from  Edinburgh  and  finished  at  Leyden. 
He  wrote  considerable,  edited  the  works  of  Milton  and  Har- 
rington and  wrote  a  biography  of  each.  He  was  on  terms 
of  intimacy  with  many  of  the  great  men  of  his  time. 

In  1696  Toland  published  his:  "Christianity  not  mys- 
terious." It  is  said  that  Toland  attacked  only  the  super- 
structure, not  the  foundations  of  orthodox  Christianity. 

In  a  letter  on  his  Vindiciiis  Liherius  he  says:  "As  for 
the  Christian  religion  in  general,  that  book  is  so  far  from 
calling  it  in  question  that  it  was  purposely  written  for  its 
service,  to  defend  it  against  the  imputations  of  contradic- 
tion and  obscurity  which  are  frequently  objected  by  the 
opposers." 

One  paragraph  will  exhibit  the  spirit  of  the  offensive 
contention  and  the  author  as  well.  "The  Christians/'  he 
says,  "were  careful  to  remove  all  obstacles  lying  in  the  way 
of  the  Gentiles.  They  thought  the  most  effectual  way  of 
gaining  them  over  to  their  side  was  by  compounding  the 
matter,  which  led  them  to  unwarrantable  compliances,  till 
at  length  they  likewise  set  up  for  mysteries.  Yet  not  hav- 
ing the  least  precedent  for  any  ceremonies  from  the  Gos- 
pel, excepting  Baptism  and  the  Supper,  they  strangely  dis- 
guised and  transformed  these  by  adding  to  them  the  pagan 
mystic  rites.  They  administered  them  with  the  strictest 
secrecy;  and  to  be  inferior  to  their  adversaries  in  no  cir- 
cumstances, they  permitted  none  to  assist  at  them  but 
such  as  were  antecedently  prepared  or  initiated." 

The  book  above  referred  to  "produced  an  outburst  of  con- 
troversy, the  first  [  ?]  act  of  the  warfare  between  deists  and 
the  orthodox  which  occupied  the  next  generation.  Toland 
did  not  openly  profess  disbelief  in  the  orthodox  doctrines, 
tJiciigh  the  tendency  of  his  argument  was  obvious.     The 

'"  Dictionary  of  national  biography,  v.  56,  pp.  438-442. 
Farrer,  James  Anson.    Books  condemned  to  be  burnt,  pp.  149-152. 
Christianity   not   mysterious:    or,   a   treatise   showing   that  there    is 
nothing  in  the  gospel  contrary  to   reason   nor  above  it;   and  that 
no  Christian  doctrine  can  be  properly  called  a  mystery. 


PROSECUTIONS   FOR  CrImES  AGAINST   RELIGION.        313 

book  was  presented  by  the  grand  jury  of  Middlesex.  To- 
land  went  to  Ireland."  At  one  time  feeling  ran  so  high 
that  it  was  dangerous  to  be  seen  speaking  with  him.  He 
found  it  difficult  to  secure  food  and  clothing. 

On  Sept.  9,  1697,  after  some  sharp  discussion  the  Irish 
House  of  Commons  voted  that  the  book  should  be  burnt  by 
the  common  hangman  and  the  author  arrested  and  prose- 
cuted. In  the  discussion  one  member  went  as  far  as  to 
advocate  the  burning  of  Toland  himself.  Toland  disap- 
peared to  escape  arrest.  In  the  third  volume  of  his  ser- 
mons (1698)  he  congratulated  the  parliament  upon  hav- 
ing made  the  kingdom  too  hot  for  him. 

Susannah  Fowler — 1698.^^ 

"On  Saturday  the  7th  of  May,  1698,  Susannah  Fowler  of 
the  Parish  of  Hammersmith  in  the  County  of  Middlesex, 
was  indicted  at  the  Session-House  in  the  Old  Bailey,  for 
uttering  blasphemous  Words  against  Jesus  Christ,  and 
Cursing  and  Damning  the  Lord's  Prayer.''  The  account 
of  the  trial  is  as  follows : 

"The  first  Evidence  depos'd,  that  the  Prisoner's  Hus- 
band came  to  him,  and  told  him  that  his  wife  was  possesst 
with  a  Devil :  Upon  which  he  asked  him  if  she  had  been 
guilty  of  any  heinous  Sin?  and  was  answered,  That  upon 
some  Discontent  she  wished  several  unlawful  wishes,  such 
as  That  the  Devil  might  fetch  her,  cursed  herself  if  she 
would  live  such  a  Life,  &c.  And  upon  her  being  visited 
she  said,  she  saw  an  Apparition  in  the  s-hape  of  a  Man; 
and  afterwards  seemed  to  be  possesst  with  a  Devil,  and 
had  seemingly  dreadful  Fits,  and  made  a  great  noise  at 
prayers;  and  when  she  was  out  of  her  fits,  she  told  the 
spectators  that  she  saw  the  Apparition  sometimes  in  one 
shape  sometimes  in  another;  and  at  one  time  said  it  was 
one  Mr.  Thomas,  and  then  making  a  great  sqeek,  said, 
Now  he  is  gone  out  of  me ;  That  she  used  to  make  a  sqeek 
at  the  end  of  every  Fit,  sometimes  two  Sqeeks,  and  some- 
times three;  and  one  of  the  Ministers  who  visited  her, 

**The  trial  of  Sussanah  Fowler  of  Hammersmith  for  blaspheming 
Jesus  Christ  and  cursing  the  Lord's  prayer,  and  who  also  pre- 
tended to  be  possest  with  the  devil. 


314  BLASPHEMY. 


being  jelous  of  her  being  a  Cheat,  said  that  at  the  end  of 
the  next  Fit  she  would  make  four  8qeeks,  which  she  did. 
It  was  also  observed,  that  as  soon  as  Prayers  begun,  she 
took  her  Fits,  and  pretended  to  be  altogether  senseless; 
at  another  time  he  said,  she  saw  a  short  Man  with  a  long 
Beard,  which  her  Handkerchief  was  a  fool  to  for  length; 
and  it  was  taken  notice  of,  that  she  never  altered  her 
Countenance  in  the  time  of  her  Fits;  which  together  with 
divers  Methods  which  were  us'd  to  make  her  believe  they 
were  at  Prayers  when  they  were  not,  increased  the  belief 
that  she  was  a  Cheat:  And  being  questioned  if  she  dis- 
sembled, she  said,  if  she  did,  it  were  just  with  God  to  strike 
her  dead:  and  upon  its  being  declared  to  her  she  was  a 
Cheat,  she  and  all  her  Family  spoke  not  a  word.  After- 
wards at  another  visiting,  she  seem'd  to  be  in  a  great  Fit, 
lifting  up  her  hands  as  if  she  would  have  done  herself 
some  mischief;  but  upon  speaking  the  words  Tie  lier^  she 
let  them  rest.  It  was  likewise  observed,  that  when  she 
was  in  her  Fits,  she  never  cursed  nor  blasphemed,  as  those 
who  are  possesst  with  the  Devil  do,  until  she  heard  some 
of  the  Ministers  take  notice  of  it;  and  then  she  did. 

"At  another  time  the  Visiters  read  and  prayed  with  her 
from  morning  to  night,  when  she  seemed  to  be  in  agony; 
and  being  forced  on  her  knees  at  Prayer,  she  swore  she 
would  go  with  him  on  Friday,  naming  the  Devil  fre- 
quently ;  and  on  the  Friday  following  she  said.  One  of  the 
Windows  above-stairs  was  open,  and  the  Devil  was  come 
to  fetch  her,  making  a  great  noise  and  lighting  a  great 
many  Candles :  and  search  being  made  for  the  open  Win- 
dow, it  could  not  be  found. 

"On  the  3d  of  January  last,  upon  one  of  the  Visiters 
repeating  the  words  Lords  save  us,  she  said,  Fll  saiye  you; 
and  frequently  upon  repeating  the  Lord's  Prayer  to  her, 
she  said.  Curse  it,  damn  it,  sink  it;  and  upon  repeating 
the  words  I  'believe  in  God  the  Father  Almighty,  she  said, 
thafs  me;  and  at  repeating  the  words,  and  in  Jesus  Christ 
his  only  Son,  she  said  that's  my  Son.  At  another  time 
when  the  words  Lord  save  us  were  again  repeated  to  her, 
she  said,  111  save  yon,  I  came  to  save  you  all,  for  which  I 
shed  my  Blood,     And  at  other  times,  on  repeating  the 


PROSECUTIONS   FOR  CRIMES   AGAINST    RELIGION.         315 

Lord's  Prayer,  she  inverted  the  expressions;  and  instead 
of  the  words,  Lead  us  not  into  temptation;  and  at  the 
words,  Deliver  us  from  evil,  she  said,  bring  evil  into  us. 
And  upon  repeating  the  words,  Glory  to  the  Father  and 
to  the  SoUy  she  said,  that's  me  and  my  Son,  after  the  words 
Blessed  be  the  Name  of  Jesus,  she  would  say,  Curse  him," 
Here  the  broadside  from  which  I  am  copying  at  the  New 
York  Public  Library  is  mutilated  and  I  must  skip  a  little. 

"The  Evidence  also  deposed  that  the  Prisoner  said  she 
had  a  Needle  and  a  Paper  in  writing  given  her  by  the 
Devil ;  and  that  she  had  a  Spell"  given  her  to  put  about  her 
Neck  by  one  Jorden  a  Papist,  some  of  which  profession 
she  said  had  sent  to  her  several  times,  and  told  her  she 
would  never  be  cured  till  the  man  with  the  hair  Coat  and 
bare  Legs  came  from  the  Portugal  Embassadors." 

There  is  more  of  this  which  a  partial  mutilation  again 
prevents  my  copying.  This  demented  woman  was  found 
guilty  of  blasphemy  and  sentenced  to  imprisonment,  fine, 
the  pillory  and  required  to  give  a  bond  for  good  behavior. 

This,  like  the  Bulstrodes  instructions  to  the  jurors  else- 
where herein  quoted,  gives  us  an  intimate  view  of  the  real 
workings  of  the  minds  of  those  who  have  upheld  and  do 
uphold  blasphemy  prosecutions.  Then,  and  now,  the 
judges  of  more  important  courts,  may  invent  more  plaus- 
ible formulas  to  justify  the  same  result,  but  these  will  not 
be  founded  upon  the  facts  of  human  experience.  They 
will  be  more  astute  intellectualizations  of  the  same  fears 
working  in  the  same  manner  though  a  little  further  below 
the  surface  of  consciousness.  The  fundamental  ignorance 
of  the  impulses  that  make  for  punishing  the  blasphemer 
is  just  as  great  as  ever.  Those  who  still  believe  in  blas- 
phemy laws,  at  present  are  a  little  more  careful  to  conceal 
their  ignorance  behind  phrases  more  acceptable  to  the 
intelligence  of  our  time. 

Today  we  may  measure  the  intelligence  of  a  man  by 
the  nature  of  his  desires.  In  the  case  at  bar  it  amounts 
to  this:  At  one  grade  of  intelligence  new  excuses  will  be 
sought  to  justify  persecution  as  of  old,  and  the  constitu- 
tional guarantees  for  equality,  religious  liberty  and  free 
speech  will  be  so  misinterpreted  as  to  permit  punishment 


316  BLASPHEMY. 


for  a  Susannah  Fowler  of  our  day.  At  another  grade  of 
intelligence  a  judge  will  interpret  the  constitutional  guar- 
antees according  to  th^  historic  and  synthetic  method. 
Then  blasphemy  statutes  will  be  annulled  and  Susannah 
Fowler  will  be  more  intelligently  dealt  with. 

Daniel  Defoe — 1703.^^ 

Defoe  (1661-1731)  perhaps  needs  no  introduction.  He 
was  from  dissenting  ancestors,  but,  while  believing  in 
more  liberty  than  generally  obtained,  he  did  not  favor 
complete  religious  liber%^.  His  contention  was  for  a  lib- 
eralizing modification  of  test  laws  rather  than  their  re- 
peal. On  this  account  dissenters  held  him  to  be  a  de- 
serter. To  put  himself  right  as  to  his  attitude  toward  a 
pending  bill  affecting  dissenters,  "he  pretended  to  justify 
the  extirpation  of  all  dissenters." 

"Defoe's  pamphlet  so  exactly  accorded  with  the  senti- 
ments of  the  High  Church  party  against  the  Dissenters 
that  the  extent  of  their  applause  at  first  was  only  equalled 
by  that  of  their  subsequent  fury  when  the  true  author 
and  his  true  object  came  to  be  known.  Parliament  ordered 
the  work  to  be  burnt  by  the  hangman." 

For  expressing  this  interest  in  toleration,  "Defoe  was 
soon  afterwards  sentenced  to  a  ruinous  fine  and  imprison- 
ment, and  to  three  days'  punishment  in  the  pillory,"  and 
to  be  imprisoned  during  the  queen's  pleasure,  and  to  find 
security  for  good  behavior  for  seven  years. 

James  Drake — 1705.^^ 

James  Drake  (1667-1707)  was  a  vigorous  tory  pam- 
phleteer, who  graduated  from  Cambridge  with  "unusual 
honors."  Later  he  studied  medicine  and  became  a  Fellow 
of  the  Eoyal  Society  and  was  elected  a  Fellow  of  the  Col- 

*"  Dictionary  of  national  biography,  v.  14,  p.  283. 

Towers,  Joseph.     Observations  on  the  right  and  duty  of  juries  in 

trials  for  libels,  Dublin,  1785,  p.  95. 

The  shortest  way  with  dissenters.     1702. 

Farrer,  James  Anson.     Books  condemned  to  be  burnt,  pp.  152-156. 
•"Vickers,  Robert  H.    Martyrdoms  of  literature,  p.  385. 

'Farrer,  James  Anson.     Books  condemned  to  be  burnt. 

Dictionary  of  national  biography,  vol.  15,  p.  446. 


PROSECUTIONS   FOR  CRIMES   AGAINST   RELIGION.         317 

lege  of  Physicians.  An  early  pamphlet  dealing  with  the 
succession  received  notice  in  Parliament.  A  second  pam- 
phlet (anonymous),  very  offensive  to  Presbyterians,  was 
ordered  burnt. 

In  the  year  1705  much  public  effervescence  was  created 
by  a  pamphlet  called  "The  Memorial  of  the  Church  of 
England  humbly  offered  to  consideration  of  all  true  lov- 
ers of  our  Church  and  Communion."  The  name  of  the 
author  was  not  published.  A  reward  of  1,000£  was  offered 
for  the  apprehension  of  the  author.  All  that  could  be 
elicited  was  that  two  women,  one  of  them  masked,  brought 
manuscripts  to  David  Edwards,  the  printer,  with  direc- 
tions to  print  350  copies.  These  were  delivered  to  four 
persons  sent  to  receive  them.  Every  copy  of  this  pamphlet 
could  be  got  hold  of  was  destroyed.  It  was  afterward  re- 
printed in  Dublin,  and  audaciously  dedicated  to  the  Lord 
Lieutenant.    That  edition  was  totally  destroyed. 

The  Tory  author  was  indignant  that  the  House  of  Lords 
should  have  rejected  the  Bill  against  Occasional  Con- 
formity, which  would  have  made  it  impossible  for  Dis- 
senters to  hold  any  office  by  conforming  to  the  Test  Act; 
he  complained  of  the  knavish  pains  of  the  Dissenters  to 
divide  Churchmen  into  High  and  Low;  and  he  declared 
that  the  present  prospect  of  the  Church  was  "very  melan- 
choly/' and  that  of  the  government  "not  much  more  com- 
fortable." Long  habit  has  rendered  us  callous  to  the 
melancholy  state  of  the  Church  and  the  discomfort  of 
Governments;  but  in  Queen  Anne's  time  the  croakers' 
favourite  cry  was  a  serious  offence.  The  Queen's  speech, 
therefore,  on  October  27th,  1705,  expressed  strong  resent- 
ment of  this  representiition  of  the  Church  in  danger; 
both  Houses,  by  considerable  majorities,  voted  the  Church 
to  be  "in  a  most  safe  and  flourishing  condition" ;  and  a 
royal  proclamation  censured  both  the  book  and  its  un- 
known author,  a  few  months  after  it  had  been  presented 
by  the  Grand  Jury  of  Middlesex,  and  publicly  burnt  by 
the  hangman,  before  the  court  and  again  before  the  Royal 
Exchange  and  in  the  palace  yard. 

It  is  difficult  at  this  to  find  a  legal  explanation  for 
this  act.     Motives  are  usually  complex.     The  pamphlet 


318  BLASPHEMY. 

doubtless  afforded  some  one  an  excuse  for  expressing  per- 
sonal and  political  animosity.  But  how  are  we  to  find 
a  legalistic  theory  for  justification  when  the  author  was 
such  an  extreme  Tory  and  the  Government  moderate  Tory? 
The  official  religion  was  "low  church."  That  is  to  say, 
it  interpreted  holy  writ  so  as  to  allow  of  more  tolerance 
than  the  author  approved.  He  denounced  the  Dissenters 
for  their  efforts  to  divide  the  Church  intO'  high  church  and 
low  church  parties  and  proclaimed  low  churchmen  dan- 
gerous to  the  true  faith  of  the  high  churchmen  and,  there- 
fore, unworthy  defenders  of  the  faith.  In  other  words, 
here  was  a  general  denial  of  something  officially  believed 
to  be  orthodox.  That,  of  course,  is  blasphemy  in  that  by 
implication  it  denies  something  which  the  othodox*  find 
in  the  Holy  Scriptures.    So  it  had  a  dangerous  tendency. 

John  Asgill — 1707.^^ 
John  Asgill  (1659-1738)  was  a  mystical  writer,  lawyer 
and  also  dabbled  with  problems  of  statecraft.  In  1700 
was  published  his  best  known  work  and  the  one  with 
which  we  are  concerned.  Its  title  page  reads :  "An  argu- 
ment proving  that  according  to  the  covenant  of  eternal 
life  revealed  in  the  Scriptures,  man  may  be  translated 
from  hence  into  that  eternal  life  without  passing  through 
death,  altho  the  human  nature  of  Christ  Himself  could 
not  be  thus  translated  till  he  had  passed  through  death. 
Anno  Dom.  1700.'' 

"Dictionary  of  national  biography,  v.  2,  pp.   160-161. 
An  argument  to   prove  that  death     is  not  obHgatory  on  Christians, 
by  the  celebrated  John  Asgill,  Esq.,  M.  P.  with  introductory  essay, 
memoir,  notes  and  ministerial  testimony  by  the  Rev.  Tresham  D. 
Greeg,  D.D.  Chaplain  of  St.  Nicholas  within,  Dublin. 
Mr.  Asgill's  defense  upon  his  expulsion  from  the  house  of  com- 
mons of  Great  Britain  in  1707.    London  1881,  p.  79.     Heywood. 
An   argument  proving  that   according  to  the   covenant   of   eternal 
life  revealed  in  the  scripture,  man  may  be  translated  hence  into  that 
eternal   life   without   passing   through    death,   although   the   human 
nature  of  Christ  himself  could  not  be  so  translated  till  he  passed 
through  death. 

Journal  of  House  of  Commons  of  Ireland.     1702,  v.  Ill,  pp.  15-16, 
46. 

Journal  of  House  of  Commons  of  England.     1707.     Nov.-Dec,  v. 
15,  pp.  440,  445,  449,  455,  473-4. 
Digest  of  Law  concerning  Libels,  1765,  pp.  40,  44. 
Farrer,   Tames  Anson.     Books  condemned  to  be  burnt,  pp.  144  to 
147. 


PROSECUTIONS   FOR  CRIMES   AGAINST   RELIGION.        319 

About  this  time  he  went  to  Ireland  where  professional 
opportunities  seemed  alluring.  AsgilPs  printer  thought 
him  mad  and  the  reputation  was,  as  he  said,  useful  to  him 
in  Ireland  by  increasing  his  notoriety.  He  was  elected  a 
member  of  the  Irish  House  of  Commons. 

That  body  ordered  the  above  pamphlet  to  be  burnt  by 
the  hangman.  The  resolution  adopted  Sept.  21,  1703, 
reads  in  part  as  follows:  "Resolved,  nemine  contradi- 
centi,  that  the  said  book  contains  in  it  several  heretical 
and  blasphemous  doctrines  and  positions  contrary  to  the 
Christian  religion  and  the  established  doctrine  of  the 
Church  of  Ireland  and  destructive  of  human  society." 

Asgill,  not  being  present,  was  ordered,  at  a  time  fixed, 
to  be  dealt  with  by  the  House.  At  the  appointed  time, 
Oct.  10,  1702,  he  was  heard  in  his  own  behalf,  after  which 
it  was:  "Resolved,  nemine  contradicente,  that  John  As- 
gill, Esq.,  a  Member  of  this  House,  be  expelled  this  House, 
and  be  ever  hereafter  incapable  of  being  chosen,  returned 
or  sitting  a  Member  in  any  succeding  Parliament  in  this 
Kingdom." 

Soon  he  returned  to  England,  was  elected  to  Parlia- 
ment, and  sat  from  Oct.,  1705,  until  Dec.  18,  1707.  At 
that  time  his  troublemaking  book  having  been  again  in- 
vestigated and  a  committee  reporting  such  passages  as 
are  contrary  to  and  reflect  upon  the  Christian  religion, 
Asgill  was  expelled  and  the  book  for  the  third  time  ordered 
burnt.    Following  is  part  of  the  committee's  report : 

"Then  the  committee  took  into  consideration  what  pas- 
sages are  used  in  said  book  contrary  to  and  reflecting  upon 
the  Christian  religion ;  which  they  find  to  be  as  followeth, 
viz: 

^^Page  7th,  *Now  the  assertion  of  Christ  concerning 
Himself  was  that  man  by  Him  may  live  forever.  And 
this  is  that  magnetick  which  hath  drawn  all  the  world 
after  Him.' 

"Page  8th.  'Now  if  these  words  of  his  are  words  only, 
then  was  He  an  impostor  and  His  doctrine  is  false. 

"  'But  if  this  assertion  of  Himself  be  true,  that,  man 
by  Him  may  live  forever,  then  all  our  attempts  beneath 


320  BLASPHEMY. 


this  are  mean  and  cowardly,  as  counting  ourselves  un- 
worthy of  eternal  life.' 

^^Page  24th.  'Such  was  the  death  of  Christ,  w^ithout 
a  precedent,  without  a  name,  without  a  reason,  without  a 
cause:  'They  hated  Me  without  a  cause.'  But  they  were 
all  against  him  because  God  was  against  Him.' 

^'Page  35th.  'Had  Christ  thus  become  man,  and  died, 
and  rose  again,  all  voluntarily  to  try  an  experiment.  He 
had  only  saved  His  own  life,  and  left  all  the  world  to 
shift  for  themselves. 

"  'But  this  w^ould  have  been  Knight-errantry  in  tempt- 
ing God — against  which  He  hath  sufficiently  declared 
Himself.' 

''Page  36th.  'The  Devil  told  Eve,  that,  they  might  eat, 
and  not  die. 

"  'And  these  were  the  first  words  spoken  to  man  by 
God  or  the  Devil ;  upon  the  truth  or  falsehood  whereof  the 
very  Beings  of  them  both  were  to  depend  forever;  for 
which  ever  of  them  could  maintain  the  truth  of  his  word 
against  the  other,  he  must  have  been  God,  and  the  other 
the  Devil. 

"  'And,  therefore,  God  having  turned  the  lie  upon  the 
Devil,  he  is  from  thence  called  a  liar  from  the  beginning, 
and  the  father  of  it,  and  will  never  be  believed  again  for- 
ever. 

"  'God  could  not  have  dispensed  with  his  word  without 
complimenting  the  Devil  with  his  Godhead  in  taking  the 
lie  upon  hmself.  And  this  he  could  not  do — for  God 
cannot  lie  without  undeifying  himself;  and  this  he  can't 
do,  because  all  his  qualities  being  of  his  essence  he  can't 
change  them.' 

''Page  51st.  'And  after  that  it  was  no  matter  to  man 
whether  Christ  had  ever  given  satisfaction  to  God  or  not. 
We  might  have  said  to  God,  Look  thou  to  that.^ 

"Page  78th.  'We  don't  think  ourselves  fit  to  deal  with 
one  another  in  human  affairs  till  our  age  of  one-and- 
twenty.  But  to  deal  with  our  Maker  thus  offended,  to 
counter-plot  the  malice  of  fallen  angels,  and  to  rescue 
ourselves  from   eternal   ruin,  we  are  generally  as  well 


PROSECUTIONS    FOR   CRIMES   AGAINST    RELIGION.         321 

qualified  for  before  we  can  speak  plain  as  all  our  life  time 
after." 

^^Page  82d.  ^But  what  is  it  that  you  do,  or  would  be- 
lieve of  him,  or  in  him?' 

^^  'Whijy  we  believe  him  for  our  Saviour/ 

"  ^Save  you  from  what?'' 

^^  ^Why!  from  our  sins/ 

"  ^Why,  what  hurt  will  sin  do  you?' 

''  'Why,  it  toill  kill  us/ 

"  ^How  do  you  know?' 

'^  'Why,  the  laio  of  God  saith  so:  ^In  the  day  thou  eatest 
thereof  thou  shalt  die!'' 

"  <Why,  but  then  will  not  the  Saviour  save  you  from 
this  law,  and  from  this  death?' 

*^  'No,  no.    He'll  save  us  from  sinf 

"  <Why,  then  it  seems  you've  got  a  pardon  for  horse 
stealing,  with  a  nmi  obstante  to  be  hanged.' 

"  ^Do  but  see  now,  what  a  jest  you  have  made  of  your 
faith.  And  yet  I  defy  the  order  of  priesthood  to  form  a 
better  creed  than  this,  without  admitting  the  truth  of 
my  argument;  or  to  make  sense  of  their  own  faith  with- 
out adding  mine  to  it. 

"  *It  is  much  easier  to  make  a  creed,  than  to  believe  it 
after  it  is  made.' 

''Page  95th,  *But  when  that  is  done,  I  know  no  busi- 
ness I  have  with  the  dead;  and,  therefore,  do  as  ^much 
depend  that  I  shall  not  go  hence  by  returning  to  the  dust 
— which  is  the  sentence  of  that  law  from  which  I  claim  a 
discharge — but  that  I  shall  make  my  exit  by  way  of  trans- 
lation, which  I  claim  as  a  dignity  belonging  to  that  de- 
gree of  the  science  of  eternal  life,  of  which  I  profess  my- 
self a  graduate,  according  to  the  true  meaning  and  intent 
of  the  covenant  of  eternal  life  revealed  in  the  Scriptures.' 

"  *And  if,  after  this,  I  die  like  other  men,  I  declare  my- 
self to  die  of  no  religion.' 

"Page  98th.  ^Therefore,  to  be  even  with  the  world  at 
once,  he  that  wonders  at  my  faith,  I  wonder  at  his  un- 
belief.' 

"  *And,  stare  at  me  as  long  as  you  will,  I  am  sure  that 
neither  my  physiognomy,  sins,  nor  misfortunes,  can  make 


322  BLASPHEMY. 


me  so  unlikely  to  be  translated  as  my  Redeemer  was  to 
be  hanged." 

"Then  John  Asgill,  Esquire,  was  heard  in  his  place  in 
relation  to  the  said  report  concerning  the  said  book. 

"And  the  title  of  the  said  book  was  read. 

"Resolved,  that  in  the  book  intituled,  *An  argument 
proving  that  according  to  the  Covenant  of  Eternal  Life 
revealed  in  the  Scriptures,  man  may  be  translated  from 
hence  into  that  eternal  life  without  passing  through 
death,  although  the  human  nature  of  Christ  Himself 
could  not  be  thus  translated  till  He  had  passed  through 
death,'  are  contained  many  profane  and  hlasphemous  ex- 
pressions highly  reflecting  upon  the  Christian  Religion. 

"Ordered,  that  the  said  book  be  burnt  by  the  hands  of 
the  common  hangman,  in  the  new  Palace  yard,  Westmin- 
ster, upon  Saturday  next,  between  the  hours  of  12  and 
1,  and  that  the  Sheriffs  of  London  and  Middlesex  do 
assist  the  Sergeant-at-arms  attending  this  House  in  see- 
ing the  same  done.'' 

"Resolved,  that  John  Asgill,  Esquire,  having  in  his 
place  owned  himself  to  be  author  of  said  book,  be  expelled 
this  House." 

Our  blasphemer  now  published  "Mr.  Asgill's  defense 
upon  his  expulsion  from  the  House  of  Commons  of  Great 
Britain  in  1707."  In  his  account  of  the  discussion  it  ap- 
pears that  the  doctrines  of  his  book  constituted  "a  crime 
higher  than  high  treason."  While  in  the  Irish  House  the 
vote  was  unanimous,  in  England  it  stood  165  to  109  against 
Asgill. 

In  1875,  Ennis  Bros.,  of  New  York  City,  republished  in 
one  volume  all  of  the  above  documents,  together  with 
some  biographical  data  from  Chamber's  Encyclopaedia 
and  an  endorsement  of  Asgill's  main  position  by  Rev. 
Tresham  Dames  Gregg,  D.D. 

Do  our  constitutions  now  permit  of  the  prosecution  of 
these  publishers  because  those  doctrines  were  declared 
blasphemous  under  the  common  law? 


XVII. 

PROSECUTIONS  FOR  CRIMES 
AGAINST  RELIGION. 

1707-1818. 

Read's  Case— 1707.^2 

In  Queen  against  Read,  there  is  only  this  brief  memo- 
randa: "Par  Curiam.  A  crime  that  shakes  religion^  as 
profaneness  on  the  stage,  &c.,  is  indictable,  but  writing  an 
obscene  book,  as  that  entitled,  *The  Fifteen  Plagues  of  a 
Maidenhead,'  is  not  indictable,  but  punishable  in  the  spiri- 
tual courts."  Lord  Holt  presided  in  this  case  and  ax- 
rested  judgment  after  conviction. 

John  Clendon — 1709.^^ 

In  this  case  the  book  ordered  to  be  burnt  deal  with  the 
subject  of  the  Trinity,  and  bore  the  following  title :  "Trac- 
tatus  Philosophico-Theologicus  de  Persona;  or  a  Treatise 
of  the  Word  Person  ♦  ♦  ♦  London,  1710."  It  was  said 
to  be  "a  libellous  reflection  on  the  trinity."  In  this  case 
no  further  biographical  or  other  information  was  found- 

John  Humphries — 1709.^^ 

John  Humphrey  (1621-1719),  an  ejected  minister,  says 
the  Dictionary  of  National  Biography,  had  "his  pamphlet 
on  the  sacramental  tests  burned  by  the  hangman,  but  on 

•Ml  Modern  Reports,  142. 
Fortescue  98.    This  is  the  fuller  report. 
Howell's,  State  trials,  vol.  17,  157,  note. 
2  Strange,  pp.  789-790.    Read's  case  cited. 

"Queen  v.  Clendon,  cited  2  Strange  780. 
Tractatus  philosophico-theologicus  de  persona. 
Farrer,  James  Anson.    Books  condemned  to  be  burnt,  p.  159. 
Digest  of  law  concerning  libels  (1765). 
Folkard's,  Starkie,  Law  of  Libel  and  slander,  5th  edition,  p.  615. 

•*  Dictionary  of  national  biography,  vol.  28,  pp.  235-6. 
Wilson,  Walter.     Memoirs  of  the  life  and  times  of  Daniel  Defoe^ 
*  *  *  Lond.  1830,  vol.  3,  p.  52. 
Farrer,  James  Anson.     Books  condemned  to  be  burnt,  p.  154. 

323 


824  BLASPFIEMY. 


admitting  the  authorship  at  the  bar  of  the  House  of  Com- 
mons he  was  dismissed  without  further  censure." 

Farrer  states  the  case  thus: 

"Parliament  ordered  to  be  burnt  by  the  hangman  a 
pamphlet  against  the  Test,  which  one  John  Humphrey, 
an  aged  Noncomformist  minister,  had  written  and  circu- 
lated among  the  members  of  Parliament.  There  seems  to 
be  no  record  of  the  pamphlet's  name ;  and  I  only  guess  it 
may  be  a  work  entitled,  A  Draught  for  a  National  Church 
accommodation^  whereby  the  subjects  of  North  and  South 
Britain,  however  different  in  their  judgments  concerning 
Episcopacy  and  Presbytery,  may  yet  he  united  (1709). 
For,  to  suggest  union  or  compromise  or  reconciliation  be- 
tween parties  is  generally  to  court  persecution  from  both." 

To  argue  for  more  tolerance  tends  to  disturb  the  tyran- 
nous peace  of  government  and  is  a  denial  of  Holy  Writ 
which  commands  persecution.  Therefore,  it  may  be  called 
either  sedition  or  blasphemy. 

Hall's  Cas©— 1709.*^^ 

Rex  V.  Hall  was  "an  information  for  a  libel  against  the 
doctrine  of  the  Trinity."  Beyond  this  information  and 
the  statement  that  the  defendant  was  the  author,  the 
legal  report  gives  nothing.  According  to  Holt,  the  book 
involved  was,  "Sober  reply  to  the  Merry  Argument  about 
the  Trinity."  A  conviction  was  secured.  No  biographical 
data  was  found,  but  doubtless  this  is  the  same  man  and 
the  same  book  mentioned  hereafter,  Joseph  Hall,  1720. 

Mathew  Tindal — 1710.^^ 

Mathew  Tindal  (1653?-1733:)  graduated  from  Oxford 
B.  A.,  1676,  B.  C.  L.,  1679,  D.  C.  L.,  1685,  and  elected  to  a 

"1   Strange  Reports,  p.  416. 
Holt  on  libel,  2nd  edition,  p.  67. 
Digest  concerning  the  law  of  libels  [1765]. 
Folkard's  Starkie,  Law  of  libel  &  Slander,  Sth  edition,  p.  616. 

"Dictionary  of  national  biography,  v.  56,  pp.  403-5. 
The  rights  of  the  Christian  Church  asserted  against  the  Romish 
and  other  priests  who  claim  an  independent  power  over  it.     With 
a  preface  concerning  the  Church  of  England,  second  edition,  1706. 
Third  edition,  1707. 

A  second  defence  of  the  rights  of  the  christian  church,  occasioned 
by  two  late  indictments  against  a  bookseller  and  his  servant  for 


PROSECUTIONS   FOR  CRIMES  AGAINST   RELIGION.         325 

laiw  fellowship  at  All  Souls'  in  1678.  In  the  reign  of 
James  II.  Tindal  became  for  some  time  a  Roman  Catholic, 
returning  to  the  Church  of  England  in  1687,  becoming 
later  a  deist.  "Tindal  was  admitted  as  an  advocate  at 
Doctors'  Commons  on  13  Nov.,  1685,  and  after  the  Revo- 
lution Avas  consulted  by  ministers  upon  some  questions  of 
international  law."  He  was  the  author  of  many  pam- 
phlets. 

After  publishing  his  book,  "The  Rights  of  the  Christian 
Church,"  Tindal  "became  one  of  the  most  hated  antago- 
nists of  the  high  church  party."  The  book  was  ordered  by 
the  House  of  Commons  to  be  burnt  March  1710. 

Before  this  (Dec,  1707)  Richard  Sare,  a  bookseller,  and 
his  journeyman,  Mr.  Williams,  together  with  the  author 
of  the  last  named  book  (third  edition)  were  presented  by 
the  grand  jury.  Later  the  case  was  removed  to  the  King's 
bench  by  Certiorari  and  there  a  new  indictment  was  pre- 
ferred against  Mr.  Sare. 

He  wrote  a  "Second  Defence"  and  therein  reproduced 
the  offending  passages  from  the  first.  Fortunately  this 
is  accessible  in  the  material  parts  will  now  be  quoted. 

"And  now  we  will  examine  the  Passages  themselves, 
and  the  first  is,  p.  78.     A  Clergyman,  'tis  sdid,  is  God's 

selling  one  of  said  books.  In  a  letter  from  a  gentleman  in  London 
to  a  clergyman  in  the  country  *  *  *  London,  1708.  . 
A  letter  to  a  friend:  occasioned  by  the  presentment  of  the  grand 
jury  for  the  county  of  Middlesex,  of  the  author,  printer  and  pub- 
lisher of  a  book  entitled  the  rights  of  the  christian  church  asserted. 
London,  1708. 

Blasphemy  as  old  as  the  creation,  or,  the  Newgate  divine  *  *  *  A 
satyr  [in  verse,  against  M.  Tindal]  by  a  gentleman  and  a  christian 
[1730]. 

Hillard,  S.  A  narrative  of  the  prosecution  of  Mr.  Sare  and  his 
servant  for  selling  the  "Rights  of  the  christian  church"  in  answer 
to  what  relates  to  that  prosecution  in  the  second  part  of  the  De- 
fence of  the  said  book,  1709. 

The  religious,  rational  and  moral  conduct  of  Matthew  Tindal,  LL.D., 
late  fellow  of  All  Souls  College  in  Oxford.    In  a  letter  to  a  friend. 
By  a  member  of  the  same  College.    London,  1735,  p.  65. 
Memoirs  of  the  life  and  writings  of  Matthew  Tindall. 
General  biography,  composed  by  John  Aiken  and  William  Johnston. 
London,  1814,  vol.  9,  p.  434. 

The  general  biographical  dictionary.  London,  1816,  vol.  29,  pp. 
391-400. 

Farrer,  J.  Anson.    Books  condemned  to  be  burnt,  i).  159. 
Leland  John.   A  view  of  the  principle  deistical  writer,  fifth  edition. 
London,  1798,  v.  1,  p.  124. 


-    326  BLASPHEMY. 


Emhassadory  therefore,  the  People  neither  Collective  or 
Representative  can  make  one,  because  they  have  no  Power 
to  send  Embassadors  from  Heaven,  But  taking  Embassa- 
dors in  that  sense,  it  will,  Fm  afraid,  prove  there  are  now 
no  Clergymen,  since  they  who  pretend  to  the  sole  Power 
of  making  'em,  can  as  little  send  an  Embassador  from 
God,  who  alone  chuses  his  own  Embassadors.  Christ,  and 
his  Apostles,  as  they  were  commissioned  by  God,  so  they 
brought  their  Credentials  ivith  'em  visible  to  Mankind, 
VIZ.  the  Power  of  working  Miracles:  But  what  Credential, 
or  tvhat  Mission  can  these  Gentlemen  pretend  to?  or  what 
Gospel,  never  before  known  to  the  World,  are  they  to  dis- 
cover? Are  they  not  at  the  best  only  Commentators,  Note- 
makers,  or  Sermon-makers  on  those  Doctrines  which  the 
Embassadors  of  God  once  delivered  to  the  Saints?  which 
many  of  'em  have  rendered  by  their  absurd  Glosses  and 
false  Comments  so  perplext  and  intricate,  that  only  a  new 
Commission  from  Heaven  seems  able  to  set  'em  in  their 
due  Light;  yet  they  do  not  scruple  to  call  their  Pulpit- 
Speeches,  the  Word  of  God,  and  apply  those  Texts  to  them- 
selves, which  belong  only  to  the  Embassadors  of  God. 
«    »    ♦ 

^The  next  Passage  I  shall  take  notice  of  is  in  p.  108. 
Among  Christians,  one  no  more  than  another  can  be  reck- 
oned a  Priest  from  Scripture,  because  the  only  Sacrifices 
of  our  Religion  are  Prayers,  Praises,  and  Thanksgivings; 
which  every  one  of  the  Congregation  offers  for  himself: 
and  there's  no  more  reason  to  affirm  that  the  Minister  offers 
up  the  Peoples'  Prayers,  than  they  his;  unless  it  can  be 
suppos'd  that  God  hears  him  only  who  talks  loudest,  in 
that  he-s  the  Servant  of  the  Congregation,  being  imploy'd 
by  'em  to  speak  with  an  audible  Voice,  that  all  may  join 
together  in  offering  up  the  same  Prayers.  And  the  Clerk 
has  as  good  a  Title  to  the  Priesthood  as  the  Parson;  since 
the  People  join  with  him  in  offering  up  their  Sacrifices  of 
Spiritual  Songs,  Hymns,  and  Thanksgivings.  To  make 
this  pertinent  to  the  present  purpose;  Does  not  every  one 
as  well  as  the  Minister  equally  apply  the  Bread  and  Wine 
to  the  same  Holy  and  Spiritual  Use,  in  commemorating 
the  Benefits  received  by  our  Saviour,  and  in  offering  up 


PROSECUTIONS   FOR   CRIMES   AGAINST   RELIGION.        327 

the  same  Prayers,  and  desiring  the  same  Blessings?  And 
whoever  does  this  with  a  due  Application  of  Mind,  rightly 
consecrates  the  Elements  for  himself,  since  this  is  the  only 
Consecration  they  are  capable  of:  Any  thing  further 
than  this  moA/  rather  he  calVd  Conjuration  than  Conse- 
cration,   *    *    * 

"The  next  Passage  that  I  shall  consider  is  recited  in  the 
first  Indictment  only,  and  is  taken  from  pag.  151.  The 
words  are :  The  Jews  when  they  came  out  of  the  Land  of 
Bondage  were  under  no  settled  Government,  till  God  was 
plea^^d  to  offer  himself  to  he  their  King,  to  which  all  the 
People  expressly  consented;  and  upon  the  Covenants  heing 
ratify'd  after  the  most  solemn  manner  as  could  he,  God 
gave  them  those  Laws,  which  hound  no  Nation  except  those 
that  had  agreed  to  the  Horeb  Contract,'^ 

It  may  be  worth  while  to  quote  a  little  of  the  comment 
made  by  the  author,  in  order  to  make  plainer  the  demo- 
cratic issues  involved.  After  quoting  Grotius,  Erasmus 
and  others  in  his  support,  our  author  continues  thus: 

"As  this  Opinion  allows  the  Magistrate  (the  Scripture 
being  wholly  silent  in  this  Matter)  to  appoint  for  the 
National  Church  after  what  manner  the  Sacrament  shall 
be  receiv'd;  so  likewise  it  permits  private  Churches  to 
agree  amongst  themselves  about  the  way  and  method  of 
taking  the  Sacrament,  as  they  judge  most  proper  for  their 
Circumstances.  And  nothing,  as  I  know,  can  be  said 
against  it,  but  what  is  urg'd  by  the  learned  Mr.  Dodwel 
in  his  Premonition  to  his  Discourse  of  the  Natural  Mor- 
tality of  the  Soul. 

"If  Judges  and  Jurys  can  think  that  the  end  of  insti- 
tuting the  Sacrament  was  to  subject  the  Laity  to  the 
Clergy,  under  the  pain  of  being  deprived  of  the  ordinary 
means  of  Salvation;  then  indeed  the  Publisher  of  the 
Rights  may  be  in  some  danger :  But  if  they  are  not  of  that 
opinion,  they  will  hardly  think  themselves  oblig'd  to  their 
own  Clergy  for  not  showing  (as  I  know  none  of  them  that 
has;  the  least  dislike  to  this  absurd  Hypothesis.  And  the 
Abetters  of  this  Prosecution  seem  to  have  no  other  de- 
sign in  having  this  Passage  of  the  Rights  condemned,  than 
to  obtain  a  Judgment  against  37  H.  8.  cap.  17.  and  the  rest 


328  bla!<php:my. 


of  the  Laws  which  make  the  Prince  the  Fountain  of  all 
Ecclesiastical  as  well  as  Civil  Jurisdiction ;  who  can  upon 
an  Appeal  not  only  revoke  the  spiritual  Censures  of  any 
Bishop  or  Archbishop,  but  likewise  for  just  causes  ex- 
communicate them. 

"The  next  Passage  I  shall  consider  is  Pag,  105,  and  in. 
the  first  Indictment  (it's  left  out  in  the  second)  runs  thus: 
To  which  Christ,  who  instituted  no  new  Rites,  superadded 
the  Remembrance  of  his  Sufferings,  and  directs  his  Dis- 
ciples as  often  as  they  did  this,  that  is,  celebrate  such  Fes- 
tivals, and  close  them  with  the  Postccenium.  Here  the 
Promoter  of  the  Prosecution  begins  and  ends  in  the  mid- 
dle of  a  Sentence;  and  all  the  Conclusion  which  can  be 
drawn  from  it  is.  That  he,  if  he  knew  how,  would  have 
something  to  present;  and  will  make  nonsense  of  what 
he  presents,  rather  than  not  present  at  all.  What  he 
should  have  presented,  as  it  stands  intire  in  the  Rights,  is, 
The  Passover  and  other  Festivals  among  the  Jews  were 
never  celebrated  in  the  Temple  or  Synagogue,  hut  in  their 
private  houses,  where,  as  Grotius  observes,  they  invited 
their  Kindred,  Friends  and  Neighbors,  to  the  number  of 
above  ten,  but  under  twenty;  which  Josephus  calls  a  Fra- 
ternity: and  at  the  close  of  the  Supper,  the  great  Meal 
with  them,  the  Master  of  the  Feast  distributed  among  his 
Guests  small  Pieces  of  the  finest  Bread;  and  having  first 
drank  of  the  Grace-Cup,  delivered  it  to  be  handed  about. 
All  this  was  accompany' d  with  Thanks  to  God  for  having 
created  Bread  and  Wine,  which  was  followed  by  some  Relor 
tion  suitable  to  the  Festival,  and  the  Eucharisty  or  Hymm 
of  Thanksgiving;  to  which  Christ,  who  instituted  no  new 
Rites,  superadded  the  Remembrance  of  his  Sufferings,  and 
directs  his  Disciples  as  often  as  they  did  this,  that  is,  cele- 
brate such  Festivals,  and  close  them  with  the  Postccenium, 
to  commemorate  him  after  this  manner.  Had  the  Informer 
put  this  down  at  length,  and  withal  mention'd  it  as  a 
Quotation  from  Grotius,  he  had  done  fairly ;  but  he  appre- 
hended that  a  Jury  would  not  upon  his  Authority  present 
as  criminal  what  the  ablest  Commentator  on  the  Scripture 
had  said  in  a  Point  relating  to  the  Jewish  Customs:  And 
I  defy  the  Informer  to  produce  any  one  Person  compe- 


PROSECUTIONS   FOR   CRIMES   AGAINST   RELIGION.        329 

tently  skilFd  in  Jewish  Antiquitys  that  contradicts  Gro- 
tins,    ♦    ♦    ♦ 

"The  next  Passage  I  shall  take  notice  of  is  in  P.  80. 
Whafs  more  required  to  give  one  a  Right  to  exercise  the 
Office  of  a  Minister  in  any  particular  Congregation,  tha/rt 
an  Agreement  amongst  them  to  chuse  a  Person  capable 
and  willing  to  take  upon  him  that  FunctioUy  and  consent 
to  hear  him  say  Prayers,  preach,  and  administer  the  Sacra- 
ments f  And  what  is  depriving  or  deposing  him,  except 
agreeing  not  to  hear  him  any  longer,  or  own  him  any  more 
for  their  Minister?  And  this  private  Churches  may  do 
'by  a  Right  natural  to  all  Societys  whatever,  since  it's 
only  a  Liberty  of  their  own  Actions  in  hearing  or  not  hear- 
ing  such  a  Person  pray  or  preach,  and  in  receiving  or  not 
receiving  the  Sacraments  from  him.    ♦    ♦    ♦ 

"But  to  make  the  Eights  to  be  against  the  State  as  well 
as  the  Church  this  Passage  in  p.  233  is  inserted  in  the 
Indictment;  The  Reason  why  the  People  may  on  just 
Grounds  tvithdraw  their  Allegiance  from  the  Civil  Mag- 
istrate, is.  Because  all  the  Powet^  he  has  is  given  him  by 
them,  in  order  to  act  for  their  Good;  and  they  who  de- 
pute him,  must  needs  reserve  to  themselves  a  Power  to 
Judg,  whether  their  Deputy  acts  according  to  the  Trust 
lodged  in  him. 

"The  word  Magistrate,  in  this  Passage,  can't  upon  any 
fair  Construction  be  apply'd  to  the  Person,  to  whom  by 
our  Constitution  Allegiance  is  due;  because  the  Author, 
in  the  beginning  of  his  Book,  declaresr  in  what  sense  he 
uses  that  word  in  the  ensuing  Discourse;  and  says.  By 
Magistrate  I  mean  him  or  them  who  have  the  Supreme  or 
Legislative  Power:  and  consequently  Allegiance  is  not 
due  to  any  such,  but  where  the  Legislative  and  Executive 
Power  is  in  the  same  hands.  But  were  this  out  of  the 
Case,  if  any  thing  is  criminal  in  this  Passage,  it  must  be 
supposing  either  that  the  Magistrate  derives  his  Power 
from  the  People,  or  that  there  are  no  Causes  which  can 
justify  them  in  withdrawing  their  Allegiance;  or  else  tho 
there  are  such  Causes,  yet  they  have  no  Right  to  judg 
when  they  happen. 

"If  Mankind  have  not  a  suflScient  Power  from  God  (as 


330  BLASPHEMY. 


every  thing  they  have  is  from  him)  to  form  themselves 
into  Political  Societys,  and  entrust  some  of  their  Body 
with  the  Administration  of  their  Affairs;  then  (since 
there  is  no  Medium)  God  himself,  without  any  Consent  of 
the  Partys,  must  have  miraculously  formed  all  the  Civil 
Governments  which  have  been  in  the  World ;  and  all  those, 
whether  in  Elective  or  any  other  Governments,  which  have 
had  the  whole  or  any  share  in  the  Legislative  Power,  must 
have  had  it  without  any  human  Intervention,  by  an  im- 
mediate Commission  from  God. 

"But  if  this  be  Infinitely  absurd,  then  it  is  evident,  that 
the  People  are  sufficiently  authorised  by  God  to  chuse  their 
own  Governors,  and  that  all  Political  Power  must  be  de- 
rived from  the  Consent  of  the  Partys  concerned:  who,  as 
'tis  impossible  they  sho'd  desire  their  own  Hurt,  or  not 
act  (especially  in  so  important  a  Matter)  but  for  their 
own  good;  so  it's  impossible  that  they  shou'd  be  willing 
to  pay  Allegiance  to  any  Person,  except  they  thought  it 
for  their  Good,  or  continue  to  give  it  him  any  longer  than 
they  judg'd  so.  And  tho  it  be  said,  that  it  is  never  for 
their  good  to  withdraw  their  Allegiance,  for  fear  of  the 
great  mischief  of  Resistance;  yet  whether  this  be  true  or 
no,  it's  unavoidable  but  they  must  judg  of  it. 

"But  if  this  were  true,  it  would  equally  hold  true  with 
relation  to  every  other  Invader:  since  there  is  no  other 
difference,  than  that  the  Oppression  would  be  more  in- 
tolerable from  one  who  had  all  the  Obligation  in  the  world 
to  defend  the  People  from  all  Oppression.  Nay,  if  the 
Mischief  of  Resistance  were  too  great,  it  would  be  Folly 
and  Madness  in  every  body  to  defend  themselves  against 
all  Highway-men  and  House-breakers. 

"Were  this  allow'd  as  a  Principle,  That  tho  the  People 
had  Rights,  yet  they  had  no  Right  to  defend  those  Rights 
against  a  Person  who  had  no  Right  to  take  them  away ;  all 
distinction  between  Free  and  Arbitrary  Governments 
would  be  lost,  and  Men  would  hold  their  Propertys,  Liber- 
tys  and  Lives,  as  precariously  in  one  place  as  in  another; 
since  their  All  would  depend  alike  on  Will  and  Pleasure." 

We  have  quoted  the  offending  passages  and  a  little  of 
the  auth-or's  anonymous  self-defence  to  make  the  practical 


PROSECUTIONS   FOR  CRIMES   AGAINST   RELIGION.        331 

issues  clear.  It  was  all  a  matter  of  loaves  and  fishes,  under 
a  system  where  church  and  state  presented  only  different 
aspects  of  the  same  thing.  Whoever  sought  to  promote 
change  or  more  democracy  was  dangerous  to  the  peace  of 
the  realm,  that  is  the  beneficiaries  of  legalized  injustice 
and  vested  wrongs.  Under  our  constitutions  there  can 
be  no  place  for  penalizing  psychologic  tendenciea 

Joseph  Hall— 1720.5'' 

On  February  12th,  1720,  the  Lords  condemned  a  work 
which,  it  is  said,  in  a  daring,  impious  manner,  ridiculed 
the  doctrine  of  the  Trinity  and  all  revealed  religion,  and 
was  called,  "A  Sober  Reply  to  Mr.  Higgs'  Merry  Argu- 
ments from  the  Light  of  Nature  for  the  Tritheistic  Doc- 
trine of  the  Trinity,  with  a  Postscript  relating  to  the  Rev. 
Dr.  Waterland."  This  work,  which  was  the  last  to  be 
burnt  as  an  offence  against  religion,  was  the  work  of  one 
Joseph  Hall,  who  was  a  gentleman  and  a  serjeant-at-arms 
to  the  King,  and  in  this  way  won  his  small  title  to  fama 

Db.  Meai>-1723.58 

"In  1723,  a  prominent  physician  named  Dr.  Mead  pur- 
chased from  the  Landgrave  of  Hesse  a  copy  of  the  Chris- 
tianismi  Restitutio  of  Servetus.  This  copy  was  reputed 
to  have  belonged  to  Colodon,  one  of  the  unhappy  man's 
accusers.  Dr.  Mead  took  measures  to  publish  the  work 
in  quarto ;  but  before  the  completion  the  sheets  were  seized 
by  order  of  Dr.  Gibson,  bishop  of  London,  and  burned 
May  27.  One  copy  that  escaped  is  now  in  the  library  of 
the  Medical  Society  of  London.  In  1770  a  reprint  was 
issued,  but  was  all  destroyed  except  a  very  few  copies. 
Dr.  Mead's  volume  found  its  way  into  the  collection  of 
the  Due  de  la  Valliere;  and  at  the  sale  of  this  library  was 
purchased  for  the  Imperial  Library  of  France." 

"Farrer,  James  Anson.      Books  condemned  to  be  burnt,  p.  172. 
"Vickers,  Robert  H.  Maryrdoms  of  Literature,  p.  387-8. 


332  BLASPHEMY. 


Bernhard  Maudeville — 1723-1728.^^ 

Bernhard  Maudeville  (1670-  ?  )  was  interesting,  face- 
tious, paradoxical  and  satirical.  One  of  his  performances, 
"The  Fable  of  the  Bee®,"  was  attacked  by  many  prominent 
literary  men,  and  has  been  published  probably  in  more 
than  a  dozen  editions.  A  few  praised  it.  One  said :  "The 
most  remarkable  philosophical  work  of  its  time."  The 
Grand  Jury  of  Middlesex  presented  the  book  as  a  nuisance 
in  July,  1723,  and  twice  after  that.  However,  I  cannot 
find  that  any  record  6f  the  trial  has  been  preserved.  It 
is  possible  that  the  sacriligious  features  were  not  suffi- 
ciently pronounced  or  partisan  to  make  it  blasphemous, 
and  there  was  no  precedent  to  make  it  punishable  purely 
for  its  "immorality"  as  such. 

However,  one  of  the  presentments  and  some  discussion 
of  it  have  been  preserved  and  parts  thereof  perhaps  are 
worth  reproducing,  as  further  exhibiting  the  workings  of 
the  censorial  minds  of  that  time.  This  same  grand  jury 
of  1728  also  presented  the  case  against  Woolston  here- 
inafter reported. 

"So  restless  have  these  Zealots  for  Infidelity  been  in 
their  diabolical  Attempts  against  Eeligion,  that  they  have, 

"First,  Openly  blasphemed  and  denied  the  Doctrine  of 
the  ever-blessed  Trinity,  endeavoring  by  specious  Pre- 
tences to  revive  the  Ariarv  Heresy,  which  was  never  intro- 
dm&d  into  any  'Nation,  hut  the  Vengeance  of  Heaven  pur- 
sued it, 

"Secondly,  They  affirm  an  absolute  Fate,  and  deny  the 
Providence  and  Government  of  the  Almighty  in  the 
World. 

"Thirdly,  They  have  endeavoured  to  subvert  all  Order 
and  Discipline  of  the  Church,  and  by  vile  and  unjust 
Beflections  on  the  Clergy,  they  strive  to  bring  Contempt 

"AlHhone,  Dictionary  of  authors.     (Maudeville  B.  de)  pp.  1211-12. 
Dictionary  of  national  biography,  v.  36,  pp.  21-22. 
A  cordial  for  bow  spirits,  being  a  collection  of  tracts  *  *  *     By 
Gordon,  p.  257. 

Wickliffe,  John.    Remarks  upon  two  late  presentments  of  the  grand- 
jury  of  the  country  of  Middlesex,  *  *  *   London,  1729. 
The  presentment  of  the  grand-jury  of  the   county  of  Middlesex. 
1723,  p. 


PROSECUTIONS    FOR  CRIMES   AGAINST   RELIGION.        333 

on  all  Religion,  that  by  the  Libertinism  of  their  Opinions, 
they  may  encourage  and  draw  others  into  the  Immorali- 
ties of  their  Practice. 

"Fourthly,  That  a  general  Libertinism  may  the  more 
effectually  be  established,  the  Universities  are  decried, 
and  all  Instructions  of  Youth,  in  the  Principles  of  the 
Christian  Religion  are  exploded  with  the  greatest  Malice 
and  Falsity. 

"Fifthly,  The  more  effectually  to  carry  on  these  Works 
of  Darkness,  studied  Artifices,  and  invented  Colours,  have 
been  made  use  of  to  run  down  Religion  and  Virtue,  as 
prejudicial  to  Society,  and  detrimental  to  the  State;  and 
to  recommend  Luxury,  Avarice,  Pride,  and  all  kind  of 
Vices,  as  being  necessary  to  Public  Welfare,  and  not  tend- 
ing to  the  Destruction  of  the  Constitution:  Nay,  the 
very  Stews  themselves  have  had  strained  Apologies,  and 
forced  Encomiums,  made  in  their  Favour,  and  produced 
in  Print,  with  design,  we  conceive,  to  debaucK  the  Nation. 

"These  Principles  having  a  direct  Tendency  to  the  Sub- 
version of  all  Religion  and  Civil  Government,  our  Duty 
to  the  Almighty,  our  Love  to  our  Country,  and  Regard 
to  our  Oaths,  oblige  us  to  present, 

"The  Publishers  of  a  Book,  entituled.  The  Fable  of 
the  Bees,  or.  Private  Vices,  Publick  Benefits,  second  Edi- 
tion, 1723,  And  also, 

"The  Publishers  of  a  Weekly  Paper,  calPd  the  British 
Journal,  Numb.  26,  35,  36,  and  39."  (pp.  2,  3) 

"The  Doctrine  of  the  ever-blessed  Trinity  has  been  ex- 
ploded, the  Authority  of  the  Holy  Scriptures  deny^d,  and 
a  Freedom  of  thinking  and  acting  whatever  Men  please^ 
(if  done  in  Sincerity,  as  it  is  called,)  is  substituted  instead 
of  the  Principles  of  the  Gospel.  *  *  *  (p.  4) 

"We  forbear  to  wound  the  Ears  of  this  Honourable 
Court,  by  a  particular  mention  of  those  many  blasphemous 
Passages  which  have  been  published  in  Books  of  late, 
(p.  5) 

"We  the  Grand-Jury  do  most  humbly  present  the 
Author,  Printers  and  Publishers  of  a  Book  entituled.  The 
Fable  of  the  Bees,  or,  Private  Vices,  Publick  Benefits,  with 
an  Essay  on  Charity  and  Charity-Schools,  and  a  Search 


334  BLASPHEMY. 


into  the  Nature  of  Society,  the  fifth  Edition;  to  which  is 
added,  a  Vindication  of  the  Book  from  the  Aspersions 
contained  in  a  Presentment  of  the  Grand-Jury  of  Middle- 
sex. London,  printed  for  J.  Tonson,  at  Shakespear's- 
Head,  over-against  Catherine-street,  in  the  Strand,  1728. 

"And  we  beg  Leave  humbly  to  observe,  that  this  in- 
famous and  scandalous  Book,  entituled.  The  Fable  of  the 
Bees,  &c.  was  presented  by  the  Grand-Jury  of  this  County, 
to  this  Honourable  Court,  in  the  Year  1723 ;  yet  notwith- 
standing the  said  Presentment,  and  in  Contempt  thereof, 
an  Edition  of  this  Book  has  been  published ;  together  with 
the  Presentment  of  the  said  Grand- Jury,  with  scandalous 
and  infamous  Reflections  thereon,  in  the  present  Year 
1728. 

"We  present  also  the  Author,  Printers  and  Publishers 
of  five  blasphemous,  impiousi,  and  scandalous  Pamphlets, 
entituled,  A  Discourse  on  the  Miracles  of  our  Saviour,  in 
view  of  the  present  Controversy,  between  Infidels  and 
Apostates,  the  fourth  Edition,  by  Thomas  Woolston,  some- 
time Fellow  of  Sidney-College  in  Cambridge.  London, 
printed  for  the  Author,  sold  by  him  next  door  to  the  Star 
in  Aldermanbury,  and  by  the  Booksellers  of  London  and 
Westminster,  1728. 

"The  second  Discourse,  with  the  like  Title,  the  second 
Edition,  printed  1727. 

"The  third,  the  second  Edition,  printed  1728. 

"The  fourth,  the  second  edition,  printed  1728. 

"The  fifth,  printed  1728. 

"In  the  Title-Page  of  every  of  the  said  five  blasphemous 
"Pamphlets,  it  is  inserted,  that  the  same  are  printed  for 
"Thomas  Woolston  the  Author  thereof."    (pp.  5,  6) 

Edward  Elwall — 1726.^^ 

Edward  Elwall  (1676-1744)  seems  to  have  started  in 
life  as  a  presbyterian,  and  as  such  was  the  victim  of  a 

•'The  triumph  of  truth  being  an  account  of  the  trial  of  Mr.  Elwall 
before   Judge   Denton,   for   publishing   a   book   in   defense   of   the 
unity  of  God;  at  the   Stafford  assizes  in  the  year  1726.    London, 
printed  for  the  IJnitarian  Society,  1816. 
Dictionary  of  national  biograi?hy,  v.  17,  pp.  340-342. 
'  Aspland,  L.  M.  Law  of  blasphemy,  *  *  *  London,  1884,  p.  10. 


PROSECUTIONS    FOR   CRIMES    AGAINST    RELIGION.         335 

high  church  mob.  After  this  he  became  converted  to  the 
Baptists,  still  later  John  Hays  converted  him  to  Uni- 
tarianism,  and  entered  upon  some  controversies  in  defence 
of  his  new  faith,  and  also  adopted  some  of  the  thought 
and  literary  eccentricities  of  the  Quakers,  probably  be- 
cause of  sympathy  with  Penn.  In  this  latter  stage  of 
development  he  became  conspicuous  as  a  sabatarian,  clos- 
ing his  shop  on  Saturday  and  opening  it  on  Sunday.  He 
had  much  reputation  for  fair  dealing  and  made  quite  a 
bit  of  money.  He  discarded  his  wig,  raised  a  long  beard, 
and  wore  a  long  blue  mantle  in  the  form  of  a  Turkish 
habit  out  of  respect  for  the  unitarian  faith  of  the 
Mahometans.  There  were  also  other  pronounced  eccen- 
tricities. 

In  1724  he  published  his  "True  Testimony  for  God, 
and  his  sacred  law,  being  a  plain,  honest  defence  of  the 
first  commandment  of  God  against  all  Trinitarians  under 
Heaven,  ^Thou  shalt  have  no  other  God  before  me',"  which 
led  to  a  local  controversy  and  a  prosecution  for  blas- 
phemy. Elwall  himself  wrote  an  account  of  his  trial, 
which  had  three  editions  in  the  author's  lifetime.  From 
the  second  edition  of  its  publication  the  Unitarians  made 
a  reprint  in  1816.  This  seems  to  be  the  only  account 
accessible  in  America.  For  this  edition,  Priestley  wrote 
a  preface  in  which  he  expresses  the  opinion  that  Elwall 
"had  certainly  acted  contrary  to  the  express  laws  of  this 
country,  according  to  which  this  glorious  man  ought  to 
have  been  sentenced  to  a  severe  punishment,  as  a  convicted 
and  avowed  blasphemer."  Some  mention  of  the  trial  is 
made  by  Elwall  in  a  treatise  entitled  "A  declaration 
ap-ainst  all  kings  and  temporal  powers  under  heaven", 
printed  in  1732.    This  I  have  not  been  able  to  consult. 

Elwall  tells  us  they  quoted  "many  pages"  of  his  book 
in  the  indictment  which  later  was  "near  as  big  as  half  a 
door."  This  defendant  pleaded  his  own  cause  which  con- 
sisted of  a  dignified  justification  of  his  opinion  made 
wholly  from  Bible  texts,  coupled  with  a  denunciation  of 
"that  hell  bom  principle  of  persecution  and  that  it  was 
hatched  in  hell",  again  making  his  justification  from  the 
Bihl- 


336  BLASPHEMY. 


Judge  Denton  presided  at  the  trial.  After  the  close  of 
the  defendant's  argument,  Robert  Humpateh,  a  justice 
of  the  peace,  laid  his  hand  on  the  shoulder  of  Judge  Den- 
ton, and  bore  testimony  to  ElwalFs  honesty  based  upon 
experience  with  him,  as  a  next  door  neighbor  for  three 
years.  Also  another  justice  spoke  to  the  same  effect.  The 
fact  that  Elwall  seemed  to  have  made  honest  effort  by  an 
appeal  to  the  archbishop  of  Canterbury  for  correction  of 
his  views  about  the  trinity  seems  also  to  have  counted  in 
his  favor.  After  this  relation,  he  again  pointed  to  the 
difference  between. "things  that  are  of  a  temporay  nature 
and  concern  civil  society''  and  those  "things  that  are  of 
a  spiritual  nature  and  concern  my  faith,  my  worship  of 
God  and  a  future  state".  In  the  former  he  declared  obedi- 
ence, in  the  latter  he  repudiated  their  claim  of  jurisdic- 
tion. After  a  whispered  conversation  among  the  justices, 
Elw^all  was  asked  to  promise  to  write  no  more  upon  this 
subject  wherein  he  had  given  grave  offence  to  his  neigh- 
bors. Again  he  denied  their  right  to  exact  the  promise  by 
refusing  to  give  it.  Elwall  says:  "I  perceived  the  Judge 
was  not  in  any  wise  displeased  at  my  honest,  plain,  bold 
answer;  but  rather  in  his  heart  seemed  to  be  knit  in  love 
to  me,  and  he  soon  declared  me  acquitted." 

Thus  far  it  does  not  appear  as  though  a  jury  had  been 
empanelled  though  a  subsequent  statement  at  least  sug- 
gests a  doubt.  He  mentions  the  judge's  expression  of 
acquittal  and  the  clerk's  words  discharging  him,  but 
makes  no  mention  of  the  empaneling  or  submission  to  a 
jury  or  its  verdict.  "The  general  precision  of  his  account 
suggests  the  great  improbability  of  his  silence  upon  that 
subject,  had  a  jury  been  empaneled.  I  conclude  from  this 
somewhat  uncertain  narrative  that  the  judges  in  effect 
discharged  the  defendant  upon  the  technical  ground  that 
the  facts  stated  did  not  constitute  blasphemy  and  that 
they  were  moved  to  this  conclusion,  not  by  applying  the 
law  as  they  found  it,  but  rather  upon  the  purely  personal 
consideration  that  the  defendant  was  known  to  them  to 
be  a  sincere  man,  who  was  quite  harmless,  because  his 
blasphemy  was  quite  dissociated  from  those  active  se€t'^> 
whose  religious  rebellion  was  but  a  part  of  their  activities 


PROSECUTIONS   FOR  CRIMES   AGAINST   RELIGION.        337 

toward  promoting  civil  rebellion  and  political  democracy. 
In  other  words  unitarian  blasphemy  was  politically  harm- 
less and  not  criminal,  when  unconnected  with  democratic 
desires. 

WooLSTON^s  Case — 1729.^^ 

Thomas  Woolston  was  a  fellow  of  Sidney  College,  Cam- 
bridge. He  was  indicted  for  this  ^^blasphemous  publica- 
tion :  *A  Discourse  on  the  Miracles  of  our  Savior,  in  view 
of  the  present  controversy  between  Infidels  and  Apos- 
tates' ".  Each  of  the  five  editions  were  presented,  as  ap- 
peared in  our  account  of  Mauderville's  troubles.  Woolston 
was  convicted  on  four  counts. 

The  report  reads  as  follows:  "The  defendant  having 
published  several  discourses  on  the  miracles  of  Christ,  in 
which  he  maintained  that  the  same  are  not  to  be  taken  in 
a  literal  sense,  but  that  the  whole  relation  of  the  life  and 
miracles  of  our  Lord  Christ  in  the  New  Testament  is  but 
an  allegory,  several  informations  were  brought  against 
him,  in  which  it  was  laid  that  the  defendant  published 
those  discourses,  with  an  intent  to  vilify  and  subvert  the 
Christian  religion ;  and  he  being  found  guilty,  Mr.  Wooley 
moved  in  arrest  of  judgment,  that  those  discoursesi  did  not 
amount  to  a  libel  upon  Christianity,  since  the  Scriptures 
are  not  denied  hut  construed  and  taken  in  a  different  mean- 
ing from  that  they  are  usually  understood  in;  and  by  the 
same  reason  that  making  such  a  construction  should  he 
punishahle  hy  the  common  law,  so  it  would  have  been  pun- 
ishable by  the  common  law  before  the  Reformation  to 
have  taken  the  doctrine  of  transubstantiation  allegorically ; 
*  *  *.  Raymond,  Chief  Justice:  Christianity  in  gen- 
eral is  parcel  of  the  common  law  of  England  and  therefore 
to  he  protected  hy  it.  Now  whatever  strikes  at  the  very 
root  of  Christianity  tends  manifestly  to  a  dissolution  of 

"Fitzgibbons  report,  p.  .64. 
2  Strangs,  p.  834,  cited  3  Merivale,  p.  379. 
1  Bernardiston's  report,  p.  162. 
Holt  on  libels,  p.  67,  second  edition. 
Digest  law  concerning  libels   (1765),  p.  58. 
Folkard's  Starkie.     Law  of  slander  &  libel,  5th  edition,  p.  616. 
Leland,  John.     A  view  of  the  principal  deistical  writers,  Tol.  1,  p. 
112,  fifth  edition,  Lond.  1798. 
Aspland,  L.  M.  Law  of  blasphemy,  1884,  p.  7. 


338  BLASPHEMY. 


the  Civil  government ;  and  so  was  the  opinion  of  my  Lord 
Hale  in  Taylor's  case.  So  that  to  say,  an  attempt  to  sub- 
vert the  established  religion  is  not  punishable  by  those 
laws  upon  which  it  is  established  is  an  absurdity;  if  this 
were  an  entirely  new  case,  I  should  not  think  it  a  proper 
question  to  be  made ;  I  would  have  it  taken  notice  of,  that 
we  do  not  meddle  with  any  differences  of  opinion,  and 
that  we  interpose  only  where  the  very  root  of  Christianity 
itself  is  struck  at,  as  it  plainly  is  hij  this  allegorical  scheme, 
the  New  Testament  and  the  whole  relation  of  the  life  and 
miracles  of  Christ,  being  denied;  and  who  can  find  this 
allegory?" 

Another  report  contains  this:  "Though  there  were  pro- 
fessions in  the  book,  that  the  design  of  it  was  to  establish 
Christianity  upon  a  true  bottom,  by  considering  these 
narratives  in  Scripture  as  emblematical  and  prophetical, 
the  court  said  those  professions  could  not  be  credited.  ♦  *  ♦ 

"But  the  second  of  these  points,  the  court  said  they 
would  not  suffer  to  be  argued;  for  the  Christian  religion 
is  established  in  this  Kingdom;  and  therefore  they  would 
not  allow  any  books  to  be  writ,  which  would  tend  to  alter 
that  estahlishnient/^ 

Woolston's  "Discourse  on  the  miracles  of  our  savior" 
was  translated  into  the  French  about  1780  by  the  cele- 
brated Baron  de  Holbach. 

Thomas  Ashley — 1746.^2 

"The  defendant  being  convicted  of  printing  and  pub- 
lishing several  printed  Libels,  intituled,  'Discourses  on 
the  Miracles  of  our  Savior  in  view  of  the  present  Con- 
troversy between  Infidels  and  Apostates,'  was  fined  sixty 
Pounds,  and  to  find  two  sufficient  Sureties  for  his  good 
Behavior  for  the  Space  of  two  Years,  himself  in  500£  and 
the  Sureties  in  250£  apiece." 

**The  King  v.  Thomas  Ashley,  Digest  law  concerning  libels   (1765) 
p.  125.    Trinity  Term,  19  Geo.  2.    K.  B.  MSS. 


PROSECUTIONS    FOR   CRIMES   AGAINST    RELIGION.         339 


Jacob  Ilive— 1756.^3 

Jacob  Hive  (1705-1763)  was  a  type  founder,  printer, 
publisher  of  a  magazine  and  a  voluminous  author,  who 
wrote  largely  upon  religious  subjects.  In  June  1756  he 
was  sentenced  for  writing  and  publishing  such  deistical 
literature  as  is  now  very  common.  His  offending  book 
was  first  published  anonymously  in  1754,  under  the  title 
"Some  Remarks  on  the  excellent  Discourses  lately  pub- 
lished by  a  very  worthy  Prelate  [Thomas  Sherlock]  by  a 
Searcher  after  Religious  Truth".  Then  it  was  rewritten 
and  enlarged. 

"An  information  was  filed  *  ♦  *  against  the  Defendant, 
for  writing,  printing  and  publishing  a  prophane  and  blas- 
phemous Libel,  entituled,  ^Modest  Remarks  on  the  Bishop 
of  London's  several  Discourses  preached  in  the  Temple 
Church,  and  lately  published  in  two  Volumes  Octavo,  in 
a  Letter  to  his  Lordship,  with  a  Postscript ;  containing  Dr. 
Sherlock's  Creed,  faithfully  extracted  from  his  own  Writ- 
ings, by  Philostheos.  (1  Thes.  v.  21)  Prove  all  things 
hold  fast  that  which  is  good;  tending  to  vilify  and  subvert 
the  Christian  Religion,  and  to  blaspheme  our  most  Blessed 
Lord  and  Savior  Jesus  Christ,  and  to  cause  his  Divinity 
to  be  denied;  and  to  represent  him  as  an  Imposter,  and 
to  scandalize,  ridicule,  and  bring  into  Contempt,  his  most 
Holy  Doctrine  Life  and  Miracles,  and  also  to  cause  the 
Truth  of  the  Christian  Religion,  and  the  Matter  contained 
in  the  Holy  Scriptures  to  be  disbelieved  and  totally  re- 
jected, by  representing  the  same  asf  spurious,  fictitious, 
and  chimerical,  and  as  a  gross  Piece  of  Forgery  and 
Priestcraft,  and  thereby  to  weaken,  enervate,  take  away 
and  destroy  their  Force,  Influence,  and  Authority,  and 
also  to  prejudice,  poison,  and  infect  the  Minds  and  relig- 
ious Principles  of  the  People,  by  propagating  and  dispers- 
ing among  them  most  impious  and  wicked  Opinions  con- 
cerning the  Truth  of  all  revealed  Religion  in  general,  to 

^  Dictionary  of  national  biography,  v.  28,  p.  414. 
Folkard's  Starkie,  Law  of  slander  &  libel,  Sth  edition,  p.  617,  mar- 
ginal p.  596. 
King  V.  Hive,  Digest  of  law  concerning  libels   (1765),  p.  83,  84,  126. 


340  BLASPHEMY. 


the  endangering  of  the  public  Peace,  State,  and  Govern- 
ment of  this  Kingdom. 

"The  Defendant  *  *  *  being  convicted  by  his  own  Con- 
fession of  writing,  printing  and  publishing  a  most  horrid, 
blasphemous  ad  wicked  Libel,  concerning  the  Truth  of 
all  revealed  Religion  in  general,  received  the  following 
Sentence  to  the  Court,  that  he  should  be  committed  to 
Newgate,  to  be  there  kept  in  safe  Custody  for  the  Space 
of  one  Month;  and  that  within  the  said  Month  he  should 
be  set  in  and  upon  the  Pillory  at  Charing  Cross,  at  the 
Koyal  Exchange,  and  at  the  End  of  Chancery-Lane,  near 
Temple-Bar,  and  at  the  expiration  of  said  Month  he  should 
be  committed  to  the  House  of  Correction  of  Clerkenwell, 
to  be  kept  there  to  hard  Labour  for  the  Space  of  three 
Years,  and  at  the  expiration  of  the  three  Years,  he  should 
give  Security  for  his  good  Behavior  during  Life,  himself 
in  the  Sum  of  100£  and  two  sufficient  Securities  in  50£ 
each  and  that  he  should  pay  a  Fine  of  6s.  8d.  and  at  the 
End  of  the  said  three  Years  he  should  be  remanded  to 
Newgate,  in  execution  of  the  said  Judgment." 

James  Dixwell  &  Edward  Cabe — 1763.®* 

"The  like  Information  [as  against  Hive]  was  exhibited 
the  same  Term  against  the  Defendants  [James  Dixwell 
and  Edward  Cabe]  for  printing  and  publishing  the  [same] 
above  Libel.''  Manifestly  from  this  brief  account  the 
book  involved  was  the  same  as  that  involved  in  the  case  of 
Jacob  Ilivie  already  reported,  namely:  "Remarks  on  the 
two  volumes  of  excellent  Discourses  lately  published  by 
the  Bishop  of  London,  1755."  [by  Thomas  Sherlock] 

Peter  Annett — 1763.®^ 

Peter  Annett  (1693-1769)  was  a  deistical  writer  of  con- 
siderable importance.     In  1761  he  published  nine  issues 

"  Digest  of  the  law  concerning  libels,  1765,  p.  84. 
^''Starkie,  Law  of  libel,  1876,  p.  596. 

Folkard's   Starkie,  Law  of  slander  and  libel,  5th  edition,    (1891), 

p.  617. 

1  Blackstone,  William,  [p.  395]. 

Digest   of   the   law   concerning  libel   [1765],  pp.  83-84. 

Burn's  Ecclesiastical  law,  v.  2. 

Dictionary  of  national  biography,  v.  2,  p.  9. 


PROSECUTIONS   FOR   CRIMES   AGAINST   RELIGION.         341 

of  The  Free  Enquirer,  attacking  the  Old  Testament  his- 
tory. He  was  tried  for  blasphemy  in  1763.  How  terrible 
these  diestic  opinions  appear  with  the  characterization 
of  the  indictment,  is  again  illustrated  in  this  case  which 
charges  "the  defendant  for  writing,  printing  and  publish- 
ing a  certain  malignant,  prophane,  and  blasphemous  libel 
intituled  *The  Free  Enquirer'  tending  to  blaspheme 
Almighty  God,  and  to  ridicule,  traduce  and  discredit  His 
Holy  Scriptures,  and  particularly  the  Pentateuch ;  to  rep- 
resent and  cause  it  to  be  believed,  that  the  Prophet  Moses 
was  an  Imposter,  and  that  the  Sacred  Truths  and  Miracles 
recorded  and  set  forth  in  the  Pentateuch  aforesaid  were 
Impostures  and  false  Inventions,  and  thereby  to  diffuse 
and  propagate  irreligion  and  diabolical  Opinions  in  the 
Minds  of  his  Majesty's  Subjects,  and  to  shake  the  Founda- 
tions of  the  Christian  Religion,  and  of  the  civil  and  eccle- 
siastical Government  established  in  this  Kingdom." 

The  defendant  pleaded  guilty.  In  consideration  of  pov- 
erty and  age  (70  yrs.)  "and  some  symptoms  of  wildness 
that  appeared  on  his  inspection  in  court"  he  was  let  off 
with  one  month  in  Newgate,  to  stand  twice  in  the  pillory 
with  a  paper  on  his  forehead  inscribed  "Blasphemy"  and 
to  the  house  of  correction  at  hard  labor  for  one  year  and 
fine  of  6s.  6d.  and  to  find  security  in  100£  for  good  be- 
havior during  life. 

After  his  release  he  became  a  school  teacher  and  had 
among  his  pupils  James  Stephen  (1758-1832),  afterwards 
Master  in  Chancery.  As  a  founder  of  a  Shorthand  System 
he  had  a  pupil  in  the  distinguished  Joseph  Priestly. 
Annett's  writings  are  of  some  interest  as  forming  a  con- 
necting link  between  the  deism  of  the  early  part  of  the 
eighteenth  century  and  the  more  aggressive  and  outspoken 
deism  of  Paine  and  the  revolutionary  period. 

John  Wilkes— 1764.«« 

An  information  charged  the  defendant  with  "printing 
and  publishing  a  certain  malignant  obscene  and  impious 
libel  entituled  *An  Essay  on  Woman';  tending  to  vitiate 
and  corrupt  the  Minds  and  Morals  of  his  Majesties  Sub- 

" Digest  of  law  concerning  libels,  [1765],  p.  86. 


342  BLASPHEMY. 


jects;  and  to  introduce  and  difuse  amongst  the  people 
general  Debauchery  and  Depravity  of  Manners .  and  a 
total  Contempt  of  Keligion,  Modesty  and  Virtue,  and  also 
to  blaspheme  Almighty  God  and  to  ridicule  our  Blessed 
Saviour  and  the  Christian  Keligion.'^  In  this  case  the 
issues  are  seemingly  confused. 

It  is  believed  that  several  forgeries  of  the  "Essay  on 
Woman''  have  been  published  as  reprints  of  the  original, 
which  makes  it  uncertain  just  what  was  the  basis  of  thia 
prosecution.  It  seems  probable  from  an  investigation  of 
several  of  these  that  the  basis  of  the  offence  was  a  blas- 
phemous use  of  the  name  of  God  in  the  poetic  glorification 
of  sexual  intercourse  and  sexual  ecstasy. 

Chamberlain  of  London  v.  Evans — 1767.^'^ 

Reference  to  the  following  case  is  inserted  here  because 
it  is  the  first  case  in  which  there  is  any  suggestion  of  a 
relaxation  from  the  old  rule  that  any  denial  of  any  part 
of  the  Christian  religion  is  intolerable.  Of  course,  the 
House  of  Lords  as  a  body  did  not  approve  the  official  opin- 
ion of  Lord  Mansfield.  It  is  important  however,  that  a 
man  of  his  prominence  should  make  the  distinction  be- 
tween natural  religion  and  revealed  religion  as  to  their 
relationship  to  the  faith ;  and  a  distinction  between  essen- 
tials and  non-essentials  of  the  Christian  religion  as  defin- 
ing the  limits  of  toleration.  Inadequate  as  it  now  seems, 
that  speech  by  Lord  Mansfield  was  considered  almost 
epoch  making. 

"In  the  year  1748  the  Corporation  of  London  made  a 
bye-law  imposing  a  fine  of  £400  upon  every  person  who, 
being  nominated  as  Sheriff  by  the  Lord  Mayor,  declined 
standing  the  election  of  the  Common  Hall,  and  £600  upon 
everyone  who,  being  elected,  refused  to  serve  the  office, 
which  fines  were  to  be  appropriated  to  the  cost  of  building 
the  Mansion  House.  The  Corporation  then  proceeded  to 
nominate  and  elect  to  office  Dissenters,  who  were  incapable 


'"Bonner,  Hypatia  Bradlaugh.      Penalties  upon  opinion,  pp.  23-24. 

Parliamentary  history,  v.  26,  p.  325. 

Furneaux,  Philip.     Letters  to  the  honorable  Mr.  Justice  Blackstone, 

concerning  his  exposition  of  the  Act  of  Tolerance,  London,   1771. 
Appendix,  no.  2,  p.  264. 


PROSECUTIONS    FOR   CRIMES   AGAINST    RELIGION.         343 

of  serving  by  an  Act  of  13  Chas.  II.,  which,  provided  that 
no  person  should  be  elected  into  any  Corporation  offices 
who  had  not  taken  the  sacrament  in  the  Church  of  Eng- 
land within  a  year  preceding  the  election.  Several  Dis- 
senters, of  whom  one  was  blind  and  another  bedridden, 
were  elected  as  Sheriffs,  and  paid  fines  to  the  amount  of 
upwards  of  £15,000.  At  length  Evans  and  others  refused 
to  pay,  urging  that  they  could  not  be  obliged  by  law  to  pay 
a  fine  for  not  serving  an  office  to  which  by  law  they  were 
ineligible.  The  City  brought  actions  against  tiiem  in  the 
Sheriffs'  Court — a  court  of  their  own — and  in  1757  judg- 
ment was  given  in  favour  of  the  Corporation.  Evans  then 
took  his  case  before  the  Court  of  Hustings,  another  City 
Court;  and  the  previous  judgment  was  there  affirmed  by 
the  Recorder  in  1759.  Evans  next,  by  writ  of  error,  carried 
his  cause  before  the  Court  of  Judges  delegate,  called  the 
Court  of  St.  Martin's.  The  judges  were  Lord  Chief  Jus- 
tice Willes  (who  died  while  the  case  was  proceeding), 
Lord  Chief  Baron  Parker,  Mr.  Justice  Foster,  Mr.  Justice 
Bathurst,  and  Mr.  Justice  Wilmot.  These,  in  1762,  unani- 
mously reversed  the  judgment  of  the  Sheriffs'  Court  and 
the  Court  of  Hustings.  The  Corporation  then,  by  writ  of 
error,  brought  the  case  before  the  House  of  Lords;  and 
in  1767,  ten  years  after  the  first  judgment  given  in  the 
case,  all  the  judges  who  had  not  sat  as  delegates  gave  their 
opinions  on  the  question  put  to  them,  which,  with  one 
exception,  were  entirely  in  favour  of  Evans  and  against 
the  Corporation.  After  the  judges  had  spoken,  Lord  Mans- 
field, in  his  place  as  a  peer,  made  his  famous  speech  for 
toleration,  which,  however,  did  not  seem  to  include  'Athe- 
ists  and  Infidels/  whom  Lord  Mansfield  dismissed  from 
consideration  as  not  coming  within  the  Toleration  Act." 

It  was  in  this  connection  that  Lord  Mansfield  made  hia 
famous  speech  for  the  toleration  of  all  Christians.  The 
date  of  it  was  Feb.  4th,  1767,  and  the  place  was  the  House 
of  Lords.  In  this  speech  he  gave  the  world  a  new  view 
of  the  relationship  of  religion  and  the  English  Govern- 
ment.   The  following  are  his  words  upon  this  subject: 

"The  eternal  principles  of  Natural  Religion  are  part  of 
the  Common-law:    The  essential  principles  of  Revealed 


344:  BLASPHEMY. 


ReUgion  are  part  of  the  Common-Law ;  so  that  any  person 
reviling,  subverting,  or  ridiculing  them,  may  be  prosecuted 
at  Common-law.  But  it  cannot  be  shown  from  the  prin- 
ciples of  Natural  or  Revealed  Religion,  that,  independent 
of  positive  law,  temporal  punishments  ought  to  be  inflicted 
for  mere  opinions  with  respect  to  particular  modes  of 
worship." 

Williams'  Case— 1797.^8 

The  next  case  in  order  is  that  of :  Rex  v.  Williams.  This 
prosecution  was  founded  on  the  publication  of  Paine's 
"Age  of  Reason,"  and  conviction  was  had  under  the  com- 
mon law.  In  America,  Paine's  defense  of  Deism  was  cir- 
culated freely  from  the  beginning  of  the  last  century. 
Cheap  editions  have  been  circulated  in  England  and 
America,  running,  it  is  said,  into  millions  of  copies.  So 
far  as  I  am  informed  this  book  has  never  been  prosecuted 
in  America,  and  yet  has  been  constantly  on  sale,  as  it  is 
npw.  This  fact  in  itself  indicates  that  in  the  early  days 
after  our  revolution,  even  those  who  opposed  this  book 
must  have  taken  quite  generally  for  granted  that  the  com- 
mon law  and  statutes  as  to  blasphemy  had  been  annulled 
by  our  Constitution.  If  these  Connecticut  statutes  are  in 
force,  according  to  the  intention  and  interpretation  of 
those  who  passed  them,  in  1642,  then  doubtless  Yale  Uni- 
versity is  many,  many  times  'a  criminal  for  circulating 
this  book. 

But  let  us  return  to  Lord  Kenyon's  discussion  in  that 
last  case,  to  discover  tbe  intensity  of  the  official  Trini- 
tarian aversion  to  this  Unitarian  literature;  and  to  redis- 
cover the  reason  of  these  laws.  Lord  Kenyon  in  his  in- 
structions to  the  jury  said:  "The  Christian  religion  is 
part  of  the  law  of  the  land."  After  the  verdict  of  guilty. 
Lord  Kenyon  further  expressed  his  abhorrence  of  this 
deistical  literature  in  the  following  remarks :  "I  have  ob- 
served several  persons,  very  likely  from  curiosity,  taking 
notes  of  what  passed  here.  This  publication  is  so  shock- 
ing that  I  hope  nobody  will  publish  this.  I  mean  that 
a  general  denial  of  it  will  not  make  any  part  of  that  pub- 


•*  Howell's  state  trials,  v.  26,  pp.  654-713. 


PROSECUTIONS    FOR   CRIMES    AGAINST   RELIGION.         345 

lication.  Nobody  who  has  any  regard  to  decency ;  nobody 
who  has  any  regard  to  their  own  interest,  will  endeavor 
to  disseminate  this  publication,  by  publishing  what  has 
passed  today." 

In  this  case  Lord  Erskine  abandoned  his  famous  role 
of  defender  of  free  speech  (for  all  seditious  utterances) 
to  take  up  the  prosecution  of  Williams.  In  calling  for 
sentence  he  said :  "There  is  no  transaction  of  my  humble 
life,  my  Lords,  that  I  look  back  upon  with  such  heartfelt 
satisfaction  as  the  share  I  had  in  being  instrumental  in 
protecting  the  interests  of  religion  and  morals,  which  most 
unquestionably  are  the  foundation,  not  only  of  all  sub- 
ordination to  the  government  of  a  country,  but  to  all  the 
interests  of  civil  society,  in  all  parts  of  the  world." 

Mr.  Justice  Ashburst,  in  pointing  out  the  enormity  of 
William's  offence,  said:  "the  minute  part  of  which  he 
would  forbear  to  particularize  ♦  ♦  ♦  Such  wicked  doc- 
trines ♦  ♦  ♦  were  not  only  an  offence  against  God,  but 
against  all  law  and  government,  from  their  direct  tend- 
ency to  dissolve  all  bonds  and  obligations  of  civil  society. 
It  was  upon  this  ground  that  the  Christian  religion  con- 
stituted part  of  the  law  of  the  land/^ 

In  spite  of  the  million  of  copies  of  Paine's  "Age  of 
Reason",  that  have  been  freely  circulated,  governments 
and  Christian  religion  are  jogging  along  much  in  the  same 
old  way.  Beginning  with  the  Williams  Case  there  were 
many  prosecutions  on  Paine's  books.  Among  the  common 
people  of  England,  Paine's  deism  and  his  democracy  were 
having  a  great  effect  in  promoting  the  cause  of  those  who 
disbelieved  in  the  divine  right  of  bishops  claiming  an  apos- 
tolic succession,  and  the  divine  right  of  kings  built  upon 
a  similar  foundation. 

Daniel  Isaac  Eaton — 1812.^® 
"No  bishop  no  King".    Thus  did  loyal  orthodoxy  accuse 
heretics  of  disloyalty.     To  repudiate  all  claims  to  apos- 

~  Prosecutions  for  political  opinions,  (political  lectures,  etc.)  n.  t.  p. 
[London,  1790  (?)]  29  p. 

The  proceedings  on  the  trial  of  D.  L  Eaton,  upon  an  indictment 
for  selling  a  supposed  libel,  "the  second  part  of  the  Rights  of  Man, 
combining   principle    and    practice    by    Thomas    Paine,    before    the 


3i6  BLASPHEMY. 


tolic  succession  in  church  authorities  was  psychologically- 
identical  with  the  repudiations  of  all  heredity  and  divine 
rights  in  the  political  authorities.  Thus  it  was  that  politi- 
cal and  religious  democracy  were  so  often  combined  in 
the  same  person.    Eaton  illustrates  this  point. 

First  he  appeared  as  the  defender  of  the  rights  of  the 
political  heretic.  Next  we  hear  of  his  being  prosecuted 
for  selling  the  second  part  of  Paine's  "Eights  of  Man" 
after  which  he  was  again  prosecuted  for  a  seditious  libel. 
A  report  of  the  trial  reads  thus:  ^Trial  of  Daniel  Isaac 
Eaton  for  publishing  a  supposed  libel,  comparing  the  King 
of  England  to  a  game  cock,  in  a  pamphlet  entituled,  Poli- 
tics for  the  people;  or  Hog's  wash;  at  Justice  Hall  in  the 
Old  Bailey,  February  twenty  fourth,  1794.  On  this  last 
accusation  the  jury  however  found  him  not  guilty.  The 
democracy  and  deism  of  Paine  were  but  different  aspects 
of  the  same  attitude  of  mind  just  as  the  English  Church 
and  State  only  expressed  different  phases  of  the  same  state 
of  mind. 

Lord  Ellenborough  presided  at  this  blasphemy  trial 
founded  upon  parts  of  Paine's  "Age  of  Reason".  The  sen- 
tence of  that  book  upon  which  most  emphasis  was  placed 
during  the  trial  follows:  "He  that  believes  in  the  story 
of  Christ  is  an  infidel  to  God".  It  appeared  during  the 
trial  that  this  book  was  then  being  published  in  Phila- 
delphia. 

Lord  Ellenborough,  in  summing  up  to  the  jury,  among 
other  things  said:  "Lords  Hale  and  Raymond  have  been 
quoted;  and  at  more  recent  period,  lord  Kenyon,  as  ex- 
pressly stating  that  the  Christian  religion  was  the  law  of 
the  land,  and  must  be  protected  as  the  law.  ♦  ♦  *  The 
whole  object  of  the  work  is  clearly  summed  up  in  the  con- 
cluding sentence  [quoted  above]  *  *  *  which  cannot  leave 
a  doubt  on  your  minds  as  to  the  pernicious  tendency  of 
the  publication. 

"The  defendant  has  told  us,  that  the  work  was  current 

Recorder   of   London,   June,    1793.     D.    I.    Eaton,    [1793]    another 

edition.     London,  1794.  48p. 

31   Howell's  state  trials,  pp.  927-958. 

The  Correspondent,  v.  5,  n.  223.    N.  Y.  1829. 


PROSECUTIONS    FOR   CRIMES   AGAINST   RELIGION.        347 

in  America,  and  had  not  been  visited  by  any  prosecution 
in  that  country.  It  is  for  them  to  administer  the  affairs 
of  religion  as  a  free  state  has  a  right  to  do ;  but  their  con- 
duct is  not  to  influence  us.  And  in  a  free  country,  where 
religion  is  fenced  round  by  the  laws,  and  where  that  re- 
ligion depends  on  the  doctrines  which  are  derived  from 
the  sacred  writings,  to  deny  the  truth  of  the  hook  which  is 
the  foundation  of  our  faith  has  never  been  permitted/^ 

The  defendant  was  found  guilty.  In  an  argument  for 
leniency  it  was  urged  that  the  late  Bishop  of  Carlisle, 
Lord  Ellenborough's  father,  "had  contended  strongly  for 
the  neces^sity  of  tolerating  all  infidelity."  Mr.  Eaton  was 
sentenced  to  eighteen  months  in  jail  and  to  stand  in  the 
pillory  two  hours  at  midday  each  month. 

George  Houston — ISIS."^^ 

In  1799  there  appeared  in  Edinborough  an  anonymous 
book  entitled,  Ecce  Homo  etc.,  variously  ascribed  to  Baron 
de  Holbach  and  to  Joseph  Web  (Webbe?.)  A  second  edi- 
tion was  published  in  1813.  For  this  latter  publication 
George  Houston  was  convicted  as  the  publisher  of  blas- 
phemy, and  sent  for  two  years  to  Newgate  and  fined  200£. 
Later  Houston  went  to  America  and  there  edited  Minerva 
(1822,  et  seq.)  and  The  Correspondent  (1827-1830).  Here 
he  republished  the  blasphemous  book  in  1827. 

Houston  confessed  himself  the  author  of  "Life  of  Jesus 
Christ,"  for  such  was  its  character.  It  is  rather  erudite 
for  its  time  and  very  harmless  indeed.  The  following  is 
his  account  of  the  events. 

"The  first  edition  of  the  following  work  [Ecce  Homo] 
was  printed  at  Edinburgh  in  the  year  1799 ;  but  it  was  not 
till  1813,  when  a  second  edition  appeared  in  London,  that 
it  was  publicly  announced  by  the  author.  Two  years  im- 
prisonment, and  a  fine  of  two  hundred  pounds  sterling, 
was  the  consequence  of  this  fearless  act ;  and  to  justify  so 
wanton  an  outrage  the  pious  instigators  of  it  sheltered 

"Biographical   dictionary  of   freethinkers,  London,   1889,  p.   177. 
Ecce  Homo!  or  a  critical  inquiry  into  the  history  of  Jesus  of  Naze- 
reth:  being  a  rational  analysis  of  the  gospels.    First  American  edi- 
tion revised  and  corrected,  New  York,   1827. 
The  Correspondent,  v.  1,  pp.  109-128,  also  vol.  5,  p.  223. 


348  BLASPHEMY. 


themselves  under  the  fallacious  plea,  that  the  religion 
which  the  writer  attacked,  was  *a  part  of  the  law  of  the 
land,  and  therefore  must  be  protected:'  Thus  tacitly 
acknowledging,  that  they  were  incapable  of  maintaining 
it  without  the  assistance  of  the  civil  power." 

John  Wright— ISIT.*^! 

The  sworn  information  makes  the  blasphemy  of  Wright 
to  consist  in  this:  "belief  in  the  Doctrine  of  the  Holy 
Trinity  was  absurd  and  ridiculous;" — "that  is  was  folly 
to  believe  in  what  was  called  the  atonement  of  the  death 
of  Jesus  Christ,  as  it  was  impious  to  suppose  that  a  good 
being  would  take  an  innocent  victim  to  atone  for  the  sins 
of  the  wicked;" — "that  as  the  idea  of  the  soul  surviving 
the  body  was  an  absurd  and  ridiculous  mental  delusion, 
that  the  idea  of  a  future  state  was  equally  so." 

Afterwards  Wright  published  the  sermon  upon  which 
this  charge  was  based,  deeming  it  his  best  justification  and 
refutation.  It  appears  therefrom  that  instead  of  the  atone- 
ment of  Jesus  he  had  advocated  the  doctrine  of  reconcilia- 
tion through  Jesus;  he  did  affirm  the  Divine  Unity  and 
he  denied  a  Separate  State,  which  he  affirms  is  not  a 
denial  of  a  future  State. 

It  has  recently  been  asserted  that  a  guess  as  to  the 
psychologic  tendency  of  such  metaphysical  quibbles  is  the 
determining  factor  in  deciding  whether  or  not  a  crime 
has  been  committed.  After  the  publication  of  the  whole 
sermon  the  case  seems  to  have  been  dismissed  without 
trial.  Evidently  this  court  did  not  think  to  submit  such 
issues  to  a  jury. 

In  the  "Preliminary  Remarks"  for  his  published  ser- 
mon Wright  insists  of  Christianity  that  "its  denunciation 
are  not  against  the  errors  of  judgment,  but  the  wicked- 
ness of  action."  This  suggests  the  difference  between  a 
constructive  and  actual  breach  of  the  peace  so  often  in- 
sisted upon  by  the  friends  of  tolerance. 

"Note  to  Attorney  General  v.  Pearson,  3  Merivale  Report,  p.  386. 
A  sermon  delivered  at  the  long  room,  Marble  street,  Liverpool,  on 
Tuesday,  April  8,  1817,  by  John  Wright,  for  which  a  prosecution  is 
commenced,  on  a  charge  of  blasphemy,  Liverpool,  1817. 


pro^cunons  for  crimes  against  religion.      349 

In  Conclusion. 

This  is  all  that  was  found  of  prosecutions  for  religious 
offences.  Effort  has  been  made  to  relate  all  the  essential 
factors  that  were  discovered  without  regard  to  their  sup- 
port or  contradiction  of  any  theories  that  will  be  defended 
in  the  case  at  bar.  So  far  we  have  pursued  an  arbitrary 
chronological  arrangement. 

It  remains  now  to  classify,  rearrange  and  co-ordinate 
these  decisions  with  the  object  of  enabling  us  to  see  their 
social  meaning  as  part  of  living  moving  human  institu- 
tions, symbolizing  slowly  changing  human  impulses  and 
corresponding  changes  in  the  human  concept  of  inter- 
human  relations  and  of  religion.  Thus  it  will  Ue  made 
to  appear  more  clearly  than  now,  that  the  fight  for  freedom 
of  speech  and  of  religion  was  but  a  part  of  the  uncon- 
scious growth  toward  political  and  religious  democracy, 
and  that  all  blasphemy  laws  are  in  utter  variance  with  the 
real  social  signficance  as  well  as  the  verbal  meaning  of 
our  constitutions. 

The  preceding  abstracts  stop  with  the  adoption  of  the 
Connecticut  constitution  in  1818.  This  was  an  eventful 
period  even  in  England.  About  this  time  began  Richard 
Carlile's  world-famous  fight  for  liberty  of  the  press  in 
England.  About  one  hundred  and  twenty  of  his  friends 
went  to  jail  with  him.  That  fight  helped  to  bring  about 
a  reversal  of  policy,  lately  registered  by  a  decision  in  the 
House  of  Lords  (1917)  in  the  case  of  Bowman  v.  Secular 
Society.    Of  this  more  will  be  said  later  on. 


XVIII. 

■  A  REVIEW  OF  BLASPHEMY 

PROSECUTIONS. 

Heretofore,  we  have  reproduced  in  chronological  order 
all  that  was  found  concerning  prosecutions  for  religious 
offenses.  How  will  we  now  treat  this  material?  In  legal 
literature  I  have  never  seen  a  discussion  of  intellectual 
method.  Therefore  it  may  help  to  formulate  a  brief 
statement  which  will  make  us  more  conscious  of  our 
methods  and  aims  as  we  proceed.  Let  us  then  first  pro- 
claim these  methods  and  aims  and  after  that  see  what 
general  meaning  we  can  thus  extract  from  the  record. 

A  Case-Lawyer's  Method. 

If  our  dominant  desires  are  functioning  at  the  level  of 
a  mere  case-lawyer  who  is  more  or  less  blind,  we  may  act 
even  from  an  unconscious  compulsion,  just  as  though  we 
consciously  wished  to  perpetuate  former  religious  persecu- 
tion, in  whole  or  in  part.  Such  persons  will  not  seek  nor 
will  they  consider  the  larger  issues  of  intellectual  freedom 
that  were  then  in  process  of  formulation  and  of  being 
fought  out.  Therefore  they  will  not  discover  the  bearing 
of  persecutory  precedents  upon  constitutional  construc- 
tions. From  the  necessity  of  their  limitations  these  per- 
sons will  study  the  precedents  with  a  dominant  impulse  as 
if  to  discover  in  them  meanings  and  justifications  for  the 
further  infliction  of  pains  for  mere  mental  offenses.  Such 
predisposition  tends  to  the  ignoring  of  the  relation  of  these 
cases  to  the  larger  principles  involved,  or  their  potency  as 
an  exhibition  of  the  evil  sought  to  be  remedied  by  our  con- 
stitutional guarantees.  By  more  or  less  crude  analogy,  the 
ancient  tyrannous  precedents  will  then  be  directly  applied 
to  present-day  facts,  without  the  intervention  of  principles 
as  these  might  be  understood  at  higher  evolutionary 
levels.  Thus  the  precedents  and  our  constitutions  can  be 
made  to  satisfy  any  present  judicial  lust  for  power  over 
opinions.  If  we  recognize  any  distinction  between  a  mere 
case-lawyer  and  an  intellectually  mature  jurist,  the  test  for 

350       ' 


A  REVIEW  OF  BLASPHEMY  PROSECUTIONS.  351 

this  discrimination  must  be  chiefly  found  in  their  differen- 
ces as  to  intellectual  processes.  Let  us  then  proceed  with 
a  statement  of  the  more  mature  mental  procedure  in  deal- 
ing with  legal  precedents. 

The  Jurist^s  Method. 

To  make  the  record  of  cases  more  useful  to  the  prob- 
lems of  statutory  and  constitutional  construction,  those 
who  use  more  mature  intellectual  methods  will  extract 
from  those  cases  statements  of  truths,  to  be  perfected  if 
possible  and  then  deductively  applied  to  each  present 
problem.  For  this  purpose  we  need  to  analyze  our  cases, 
first,  in  order  to  abstract  from  each  the  essential  factors 
which  make  it  like  unto  other  cases  as  to  the  possible  gen- 
eral rules  of  law  that  may  be  discovered.  Next  we  may 
reorganize  this  case-material  in  new  classifications  accord- 
ing to  the  similarity  of  the  suppressed  ideas  with  the  hope 
of  uncovering  more  completely  the  pernicious  possibilities, 
and  then  arrange  them  all  under  general  classifications. 
In  making  this  rearrangement  we  will  neglect  the  rela- 
tively immature  mental  processes  which  deal  principally 
with  concrete  and  obscure  analogies  between  that  past  case 
and  this  present  one.  Thus  we  may  arrive  at  the  more 
mature  intellectual  methods  which  impel  us  to  deal  more 
intelligently  and  thoroughly  with  abstract  relations,  and 
with  generalizations  inductively  derived.  Then  we  may 
also  formulate  the  law,  as  to  blasphemy  and  as  to  the 
meaning  of  free  speech,  and  formulate  it  in  the  sense  of 
"law"  as  rules  of  conduct  that  are  general  in  form  and  yet 
so  precise  as  to  furnish  certainty  and  uniformity  in  the 
criteria  of  conduct.  Without  such  certainty  in  the  criteria 
of  right  and  of  crime,  we  inevitably  preclude  the  important 
achievement  of  even  approximate  equality  before  the  law. 

Thus  we  can  assimilate  and  integrate  the  concrete  as- 
pects of  blasphemy,  into  larger  generalizations  which  will 
present  its  true  historic  meaning  in  the  form  of  general 
principles,  or  as  general  criteria  of  blasphemy.  At  the 
same  time  these  principles  carried  to  their  logical  con- 
clusion should  make  even  more  plain  the  inherent  evil 
factor  which  the  dissenters  opposed  and  which  our  con* 
stitutions  sought  to  destroy  forever.     Thus  we  may  come 


352  BLASPHEMY. 


to  understand  more  clearly  the  contrary  principle,  as  a 
rule  of  action  made  obligatory  by  our  constitutions.  When 
thus  we  come  to  see  the  conflict  of  principle  between 
blasphemy  prosecutions  and  constitutional,  religious  and 
intellectual  liberty  we  may  achieve  also  some  general  cri- 
teria for  determining  the  existence  and  meaning  of  the 
latter.  With  this  done,  we  will  have  achieved  a  jurist^s 
conception  of  constitutional  law.  The  exactness  and 
thoroughness  with  which  we  adhere  to  this  more  scientific 
method,  that  is  to  say :  the  emphasis  which  we  place  upon 
it,  will  depend  upon  the  development  and  the  temperament 
of  each  individual. 

It  is  the  choice  and  the  use  we  make  of  precedents  that 
will  reveal  our  unconscious  as  well  as  conscious  motives 
and  our  intellectual  methods,  and  these  in  combination 
will  determine  the  result.  Thus  do  we  automatically 
classify  our  intellectual  status  as  we  must,  and  justify  our- 
selves as  best  we  can.  Those  with  an  adequate  evolu- 
tionary concept  of  desire  and  of  mental  processes  will  see 
in  us  and  understand  that  which  others  fail  to  grasp.  So 
do  we  quite  unconsciously  classify  ourselves,  as  near  to  a 
most  blind  case-lawyer  or  to  a  real  jurist.  In  the  higher 
developmental  stage  of  desire  we  function  above  the  petty 
conflict  /of  unconscious  and  narrowly  conditioned  per- 
sonal tendency.  Then  we  will  seek  a  relatively  impersonal 
and  more  synthetic  view  of  the  historic  and  personal  con- 
flicts and  through  this  we  may  be  impelled  to  consciously 
promote  the  process  of  democratization,  by  means  of  a  like 
promotion  of  its  indispensible  intellectual  hospitality. 

Criteria  of  Blasphemy. 

Let  us  now  see  if  we  can  abstract  from  the  blasphemy 
cases  a  few  general  truths  about  the  motives  which  pro- 
duced blasphemy  laws,  and  the  criteria  of  guilt  under 
them.  Then,  perhaps,  we  can  acquire  a  better  view  of 
such  laws,  and  see  them  as  the  very  evils  which  our 
constitutions  were  designed  to  destroy,  and  so  bring  our- 
selves to  a  better  understanding  of  the  how  and  why  of 
that  design. 

A  careful  reading  of  the  blasphemy  cases  makes  it 
plain   that   at   no   time   before   our   revolution    did    the 


A  REVIEW  OF  BLASPHEMY  PROSECUTIONS.  353 

blasphemous  character  of  an  idea  depend  upon  the  rhetori- 
cal form  or  the  politeness  of  literary  style.  On  its  politi- 
cal side  as  "sedition"  the  objection  to  religious  heresy  was 
that  it  attacked  the  privileges  and  prerogatives  that  were 
claimed  as  a  matter  of  divine  right,  founded  on  Christian 
"orthodoxy.'^  Blasphemy  as  such  was  conditioned  on  the 
meaning  of  one's  utterance,  in  comparison  with  and  as  a 
contradiction  of  orthodox  doctrine..  Neither  did  blas- 
phemy then  depend  upon  the  judge's  or  the  jury's  opinion 
of  the  psychologic  tendency  to  produce  a  disturbance  of 
the  civil  peace.  A  hypothetical  and  imaginary  tendency 
to  ^^endanger  the  eternal  souV  of  others  was  the  justifica- 
tion for  such  legislation,  but  even  this  was  never  made  the 
criteria  of  guilt.  Whether  any  utterance  came  within  the 
scope  of  the  blasphemy  statute  was  a  pure  question  of  law 
determinable  only  by  the  judges.  It  was  decided  by  them 
wholly  with  reference  to  its  contradiction  of  essential 
orthodox  doctrine.  The  judge  w^as  presumed  to  know  what 
was  orthodox  just  as  he  was  presumed  to  know  what  was 
the  law,  for  orthodoxy  was  the  law. 

Under  our  constitutional  guarantees  of  a  separation  of 
church  and  state  and  for  religious  liberty,  the  reason  for 
blasphemy  laws  utterly  fail.  Now  our  courts  cannot  de- 
termine what  is  orthodox  religious  doctrine,  because  its 
existence  in  the  legal  sense  has  been  prohibited.  Neither 
can  it  protect  the  legalized  injustice  or  vested  wrongs  of 
the  privileged  classes,  or  those  claiming  to  be  such.  AJ 
secular  government  can  have  no  concern  with  the  post 
mortem  salvation  of  souls.  For  all  those  who  have  the 
desire  and  the  capacity  to  see  these  truths  the  constitutioti 
will  therefore  be  held  to  have  repealed  the  common  law 
as  to  blasphemy.  Those  whose  desires  and  intellects  func- 
tion on  a  different  evolutionary  level  may  reach  a  contrary 
conclusion.  So  these  latter  will  retard  the  growth  of 
democracy  and  of  liberty,  as  the  German  Kaiser  and  the 
Pope  are  doing.  This  is  all  the  more  evident  when  we 
further  consider  the  nature  and  source  of  blasphemy  laws, 
as  being  but  the  parliamentary  ratification  of  the  canon 
law. 

It  also  appears  from  such  a  careful  reading  of  the  cases 


354  BLASPHEMY. 


based  upon  religious  offenses  that  all  of  them  were  but 
special  instances  of  a  violation  of  the  canon  law  against 
blasphemy.  Again  the  reason  for  this  is  obviously  found 
in  the  fact  that  all  government  was  then  supposed  to  de- 
rive its  just  powers  from  God  and  not  as  in  America  from 
the  consent  of  the  governed.  Thus  the  parliamentary 
adoption  of  the  canon-law  was  but  a  declaratory  confirma- 
tion of  what  the  then  English  theory  of  government  already 
implied.  The  parliamentary  approval  wrought  only  the 
change  of  eliminating  the  papal  authority,  not  the  divine 
authority  in  politics. 

Canon-Law  and  Common-Law. 

"Besides  the  papal  institutions,  there  were  many  decrees 
of  synods  or  ecclesiastical  councils,  especially  in  England, 
which  may  be  ranked  as  parts  of  the  canon  law.  At  the 
dawn  of  the  reformation  (in  the  time  of  Henry  VIII)  an 
act  passed,  for  the  revision  of  the  canon  law,  and  providing 
that  until  that  revision  was  made,  all  canons,  constitu- 
tions, ordinances,  and  synodols  provincial,  then  already 
made,  and  not  repugnant  to  the  law  of  the  land  or  the 
king's  prerogative,  should  still  be  used  and  executed.  No 
such  revision  has  been  made.  Clerical  canons,  made  since 
that  time,  are  no  authority  as  to  the  laity,  unless  confirmed 
by  act  of  parliament."^ 

Just  here  it  may  be  useful  to  restate  the  three  catagories 
of  the  canon-law  definition  of  blasphemy,  and  to  attempt 
some  elucidating  comment  thereon.  Blasphemy  consisted 
in  this :  "First,  when  there  is  attributed  to  God  that  which 
is  not  proper  to  God,  and  second,  when  there  is  taken  away 
from  God  that  which  is  proper  to  God.  To  these  two  a 
third  should  be  added,  according  to  St.  Thomas  Aquinas 
that  when  there  is  attributed  to  the  Creature,  that  which 
is  proper  to  the  Creator  alone'^  (p.  166). 

The  first  two  categories  obviously  are  distinguished 
mainly  according  to  the  form  of  the  blasphemous  state- 
ment. If  one  says  that  God  is  a  purposeful  divine  immi- 
nence in  the  universe,  he  denies  the  ordinary    conception 

*  Sullivan,  William.  Historical  causes  and  effects,  p.  424;  citing, 
Blackstone's  Commentaries,  vol.  1,  p.  74.  [Blackstone,  v.  1,  pp. 
82-83.] 


A  REVIEW  OF  BLASPHEMY  PROSECUTIONS.  355 

of  the  divinity  of  Jesus,  and  therefore  denies  the  trinity. 
At  the  same  time  such  a  statement  attributes  to  God  that 
which  does  not  belong  to  the  orthodox  conception  of  him. 
Likewise,  if  I  ascribe  to  any  man  the  qualities  or  powers 
which  orthodoxy  credits  God  with  monopolizing,  then  I 
am  by  necessary  implication  denying  to  God  some  quality 
of  exclusive  super-humanness  which  orthodoxy  considers 
proper  only  to  God.  We  must  therefore  conclude  that  all 
blasphemy  is  a. mere  denial  expressed  or  implied,  of  any- 
thing which  for  the  moment  is  deemed  essential  to  orthodox 
religion,  or  to  its  political  machinery,  and  that  orthodoxy 
can  have  logical  existence  in  the  legal  sense  only  when 
church  and  state  are  one. 

When  our  constitutions  disestablished  all  religion  it 
was  undoubtedly  designed  to  include  a  repeal  of  the  en- 
actment which  had  made  the  canon-law  a  part  of  the  com- 
mon-law. If  not  this  then  the  constitutional  words  have 
no  meaning.  Only  through  the  union  of  church  and  state 
did  the  canon-law  supply  the  reason  and  the  essense  of  the 
laws  against  blasphemy.  By  destroying  and  prohibiting  the 
union  of  church  and  state  and  by  guaranteeing  freedom  of 
speech,  in  the  clearest  general  terms  that  are  possible,  our 
constitutions  prohibited  blasphemy  prosecutions. 

From  this  point  of  view  it  can  be  said  that  our  problem 
is  to  decide  which  will  now  prevail,  canon-law  or  secular 
constitutions?  Only  by  immature  intellectual  methods 
and  their  inadequate  sophistries  can  the  former  be  upheld 
or  the  two  reconciled. 

Review  of  Adjudicated  Cases. 
A  careful  reading  of  the  cases  reported  as  crimes  against 
religion  makes  it  clear  that  even  though  the  judicial  label 
was  "sedition"  every  case  presented  a  violation  of  the 
canon-law  against  blasphemy.  To  deny  the  divine  right 
of  the  king  was,  of  course,  a  denial  of  an  orthodox  essen- 
tial. If  we  co-ordinate  the  judicial  cases  and  the  canon- 
law  another  fact  becomes  apparent,  namely:  All  three 
classifications  of  the  canon-law  as  to  blasphemy  and  all 
the  adjudicated  cases  of  which  any  record  is  found,  con- 
sist of  the  one  essence,  which  is  a  denial,  directly  or  by  in- 
direct necessary  implication,  of  something  which  at  the 


356  BLASPHEMY. 


moment  was  considered  essential  to  the  fabric  of  orthodox 
theologic  theory.  Again,  the  essence  of  legalized  orthodoxy 
varied  according  to  the  politico-religious  fashion. 

As  we  contemplate  these  facts  we  achieve  a  new  under- 
standing of  the  essential  content  of  the  English  judicial 
mind  when  it  expressed  the  formula  that:  "Christianity 
is  part  of  the  law  itself."^  How  else  could  a  king  or  a 
bishop  rule  by  divine  right?  Furthermore,  the  canon-law 
had  been  expressly  enacted  as  part  of  statutory  law.^  The 
contemplation  of  these  facts  also  give  us  a  new  valuation 
of  the  "intelligence"  of  those  American  judges  who  under 
our  secular  constitutions  have  approvingly  repeated  that 
statement  about  Christianity  being  part  of  the  law  itself.* 
Is  it  not  merely  that  undemocratic  desires  impel  some 
judges  to  an  unintelligent  parroting  of  a  formula  that 
gives  emotional  satisfaction  to  an  immature  lust  for  power? 
We  can  leave  the  answer  to  this  psychologic  problem  for 
the  psychologic  specialist  and  for  another  time. 

DiVINE-RlGHT-RULE  AND  BLASPHEMY. 

Before  the  reformation  the  King  ruled  by  divine  right 
through  the  mediation  of  the  Pope.  After  the  reformation 
Henry  VIII  ruled  by  divine  right  without  any  interme- 
diary. Within  their  jurisdiction,  the  anglican  bishopa 
also  ruled  by  divine  right,  and  exercised  even  penal  juris- 
diction, not  as  the  arm  of  the  king  or  in  the  name  of  the 
king,  but  in  their  own  proper  person  as  successors  of  the 
apostolic  fathers  of  the  church.^  The  logic  of  the  cases  is 
to  the  effect  that  Christianity  was  more  than  a  part  of  the 
law.  Christianity  was  the  supreme  and  more  fundamental 
part  of  the  law.  Blackstone  formulates  it  thus :  "Where 
the  former  determination  is  most  evidently  contrary  to 
reason,  [it  is  not  law]  much  more  if  it  be  contrary  to  divine 

■Taylor's  Case,  1  Ventris  293;  3  Kebble  607;  2  Strange  789.     See 
page  286  herein. 

•  Blackstone's  Commentaries,  v.  1,  pp.  74-82-83. 

*  State  V.  Chandler,  2  Del.  553-556. 

People  V.  Ruggles,  8  John  (N.  Y.),  290-294;  5  Am.  Dec.  335. 
Updegraph  v.  Com.,  11  Serg.  &  Handle  (Pa.),  394-401. 
But  for  modern  British  attitude  see:   Bowman  v.   Secular  Society, 
Ltd.    Law  Reports,  Appeal  Cases,  Part  IV  Aug.  1,  1917,  pp.  406-47a 

"See.  Richard  Burton's  Case,  pp.  219-221  herein. 


A  REVIEW  OF  BLASPHEMY  PROSECUTIONS.  357 

law.'^^  The  orthodox  conception  of  divine  law  was,  there- 
fore, supreme  in  a  theocracy  which  came  down  from  God, 
in  much  the  same  sense  in  which  our  democratic  constitu- 
tions are  held  to  be  supreme  because  they  came  up  from 
out  of  the  people.  Under  these  circumstances,  of  course, 
**words  against  an  archbishop  are  words  against  the  gov- 
ernment."^ Since  the  bishops  also  ruled  by  divine  right 
it  might  equally  have  been  said  that  words  against  an  arch- 
bishop are  words  against  God.  To  deny  anything  orthodox 
in  religion  was  to  deny  the  very  foundation  upon  which 
the  government  claimed  to  rest.  It  was  therefore  optional 
whether  one  labeled  certain  utterances  as  blasphemy,  sedi- 
tion, or  treason.  That  is  the  inescapable  meaning  of  those 
cases  where  prosecution  followed  a  criticism  of  the  doc- 
trines of  the  bishops.®  However,  the  true  human  motive 
was  always  a  mere  matter  of  protecting  the  temporal  ad- 
vantages of  the  privileged,  though  the  pretense  was  to  pro- 
tect God  and  the  spiritual  advantage  for  the  soul. 

Assuming  Divine  Attributes. 

The  same  relation  to  the  advantages  of  the  privileged 
can  be  discovered  also  in  those  cases  where  the  blasphemy 
consisted  in  attributing  to  a  human  "that  which  is  proper 
to  the  Creator  alone." 

In  the  case  of  Abiezer  Coppe  (pp.  271-272)  his  book  was 
burned  as  blasphemous  because  he  assumed  to  himself  the 
divine  prerogative  of  issuing  a  final  divine  warning  to  pre- 
pare for  the  day  of  judgment.  Such  pretensions  obviously 
came  in  conflict  with  the  monopoly  of  the  bishops. 

James  Naylor  (p.  282)  allowed  himself  to  be  adored  as 
God  or  Christ,  claimijig  to  be  a  spiritual  king  of  Israel 
having  power  over  the^nemies  of  Christ,  and  therefore  he 
was  adjudged  a  blasphemer.  Again  we  see  the  supreme 
authority  of  the  orthodox  church  being  questioned.  This 
was  in  effect  setting  up  a  claim  for  a  new  sovereign  of 
sovereigns. 

Lodo wicks  Muggleton  (p.  292)  and  John  Reeve  between 

•  Blackstone*s  Commentaries,  v.  1,  p.  70. 

•  Mence  on  Libel,  p.  288-289.    edition  of  1823 ;  see  also :  Pocklington'i 
Case,  p.  248  herein. 

•Legate,  p.  182;  Montagu,  p.  192;  Leighton,  p.  197-199;  Burton,  p. 
215-222,  Pocklington,  p.  238,  etc. 


358  BLASPHEMY. 

them  assumed  to  exercise  the  divine  power  to  damn  and  to 
bless.  Such  persons  also  were  obviously  threatening  to 
supercede  both  bishops  and  king. 

An  unnamed  member  of  the  Society  of  Love  (p.  295) 
claimed  familiar  communion  with  God,  assumed  the 
"sacred  attributes  of  God,  sometimes  gave  out  that  she  was 
the  Virgin  Mary  and  other  times  blasphemously  taking 
upon  herself  other  adorable  names  and  titles."  She  pre- 
sumed to  pronounce  damnation  and  salvation.  Here  again 
was  the  assertion  of  a  nearness  to  God  beyond  that  which 
the  orthodox  clergy  were  claiming.  For  these  acts  she  was 
held  to  keep  the  peace,  doubtless  being  a  dangerous  or 
audacious  competitor  of  the  existing  aristocracy. 

Sussannah  Fowler  (p.  314),  another  demented  female, 
was  also  convicted  of  blasphemy  for  claiming  to  be  a  God 
and  to  possess  the  power  to  save  and  to  damn.  If  this  were 
tolerated  it  would  necessarily  endanger  the  bishops'  pre- 
eminence and  ultimately  their  "loaves  and  fishes." 

John  Asgill  (pp.  319-322)  published  a  book  held  blas- 
phemous because  of  numerous  erroneous  and  harmless 
theories  by  which  he  sought  to  prove,  by  the  scriptures, 
that  man  may  be  translated  from  hence  into  eternal  life 
without  passing  through  death.  Here  again,  through  the 
medium  of  "misinterpreted"  holy  writ,  a  divine  quality 
was  ascribed  to  mere  humans.  When  death  loses  its  ter- 
rors the  clergy  will  have  lost  the  keys  to  "eternal  life." 
Then  their  job  becomes  worthless  and  their  prerogatives 
will  vanish.  In  the  House  of  Commons  Asgill's  book  was 
declared  "a  crime  higher  than  High  Treason." 

So  then,  on  its  human  side  as  a  matter  of  motive,  blas- 
phemy prosecutions  always  protected  temporal  privileges 
and  prerogatives,  such  as  are  inconsistent  with  some  pres- 
ent conceptions  of  democracy.  On  its  religious  side  blas- 
phemy dealt  with  "spiritual"  pretenses  and  soul-protection. 
All  these  religio-moralistic  pretenses  of  superhuman  origin 
were  mere  masks,  perhaps  unconsciously  but  actually  used, 
for  the  covert  protection  of  privileges  and  prerogatives. 
By  destroying  the  union  of  church  and  state  it  was  sought 
by  our  constitutions  to  destroy  this  religio-political  sup- 
port for  that  which  was  undemocratic. 


a  review  of  blasphemy  prosecutions.  359 

Rule  Illustrated. 

From  the  foregoing  discussion  some  will  doubtless 
achieve  a  new  vision  and  it  is  hoped  a  clarified  vision,  for 
re-examining  the  prerevolutionary  judicial  attitude  to- 
ward blasphemy  as  that  was  then  formulated.  We  may 
profitably  quote  a  few  such  authorities  to  confirm  our  fore- 
going speculations.  Lord  Holt,  in  his  Law  of  Libels,^  under 
the  heading  of  "Offenses  against  religion,"  includes  this: 
"All  profane  scoffing  of  the  holy  Scripture,  or  exposing  any 
part  to  ridicule  and  contempt.'^ ^^  Hawkins  uses  precisely 
the  same  language  just  quoted  from  Holt. 

Having  now  clarified  our  mind  to  the  point  of  seeing  that 
a  denial  of  any  part  of  the  official  interpretation  of  Holy 
Scripture  or  of  the  Christian  religion  was  blasphemy,  let 
us  view  some  specific  doctrines  that  it  was  a  crime  to  deny. 
Thus  will  we  come  to  a  concrete  understanding  of  just  how 
this  blasphemy  statute  must  have  been  interpreted  in  1642 
by  those  who  enacted  it,  and  how  it  must  still  be  interpreted 
if  it  is  to  be  enforced.  The  court  cannot  amend  the  statute 
by  new  interpretations  which  alter  the  criteria  of  guilt.  If 
the  statute  as  interpreted  prior  to  1818  is  unconstitutional, 
then  it  cannot  now  be  made  to  harmonize  with  the  consti- 
tution by  a  judicial  amendment  of  the  statute.  All  English 
and  American  statutes  about  blasphemy  were  but  declara- 
tory of  the  common  law,  and  that  in  turn  was  merely 
declaratory  of  the  canon-law. 

"The  statute  law  has  likewise  marked  out  certain  offenses 
against  Christianity  in  which  it  is  merely  declaratory  of 
the  common  law.  *  *  ♦  Reviling  the  sacrament  of  the 
Lord's  Supper  with  contemptuous  words,  etc.,  for  which  by 
1  Edw.  VI,  c.  1  (which  was  repealed  by  1  Mary,  c.  2,  and 
revived  by  1  Eliz.,  c.  1  [1558-1603] )  the  offender  shall  be 
imprisoned,  fined  and  ransomed."^^ 

Crime  to  Deny  Trinity. 
Lord  Holt  presents  the  following  view  of  the  law  in  re- 
lation to  the  doctrine  of  the  Trinity.    His  word  "profanely" 

•p.  65,  of  second  edition,  1816. 

"Hawkin's  Pleas  of  the  Crown  (seventh  edition,  1795),  v.  1,  chap.  S, 
p.  12.     See  also  quotations  in  chap.  12,  herein. 
"  Holt,  on  Libel,  p.  65,  of  second  edition,  citing :  4  Black  Com.  p.  50. 


360  BLASPHEMY. 


must  be  interpreted  in  the  light  of  what  has  preceded, 
namely:  that  a  mere  denial  of  the  official  concept  of  the 
Trinity  is  criminal  blasphemy  or  profanity. 

"By  3  Jac.  1.  c.  21.  Whoever  shall  use  the  name  of  the 
Holy  Trinity  profanely  or  jestingly,  in  any  stage,  play, 
interlude  or  show  shall  be  liable  to  a  penalty  of  ten 
pounds." 

"By  Will.  III.  c.  18,  sec.  17  (1689-1703).  Whoever  shall 
deny  in  his  preaching  or  writing  the  doctrine  of  the  blessed 
Trinity  shall  lose  all  benefit  of  the  act  of  toleration,  etc. 
This  act,  in  addition  to  depriving  the  offender  of  the 
privileges  above  mentioned,  leaves  the  punishment  of  the 
offense,  as  a  misdemeanor  at  common  law."^^  This  view 
that  it  is  a  crime  to  deny  the  Trinity  is  abundantly  justi- 
fied by  cases  of  which  an  abstract  has  been  hereinbefore 
publish  ed.^^ 

Abraham  Bishop  in  a  Preface  to  the  publication  of  an 
"Oration  delivered  at  Wallingford  on  the  11th  of  March, 
1801,  before  the  Republicans  of  Connecticut  at  their  gen- 
eral Thanksgiving  for  the  election  of  Thomas  Jefferson," 
protests  against  the  blasphemy  law  of  Connecticut, 
coupled  with  a  demand  for  a  constitutional  form  of  govern- 
ment and  religious  liberty.  He  said:  "Certainly  the 
Trinitarian  doctrine  is  established  by  law,  and  the  denial 
of  it  is  placed  in  the  rank  of  felonies.  Though  we  have 
ceased  to  transport  from  town  to  town,  Quakers,  New- 
lights  and  Baptists,  yet  the  dissenters  from  our  prevail- 
ing denomination  are,  even  at  this  moment,  praying  for 
the  repeal  of  those  laws  which  abridge  the  rights  of  con- 
science." 

If  then  this  Connecticut  statute  against  blasphemy  is 
to  be  interpreted  according  to  the  Common  law  of  England 
at  the  time,  or  according  to  the  current  colonial  interpreta- 

"  Holt ;  Law  of  Libel,  1816,  second  edition,  pp.  63-66. 

"Legatt,  1612,  p.  180;  Wightman,  1612,  p.  183;  Best,  1643,  p.  258;  Bid- 
die,  1648,  pp.  265-268-269;  Coppe,  1650,  p.  272;  Fry,  1650,  p.  273; 
Racovian  Catechism,  1652,  p.  279-280;  Muggleton,  1652-1676,  pp. 
288-289-292;  Aikenhead.  1695,  pp.  308;  Kinnymount,  1697,  p.  311; 
Toland,  1697,  p.  312;  Fowler,  1698,  p.  313;  Clendon,  1709,  p.  223; 
Hall,  1709-1720,  pp.  324,  331;  (?)  Manderville,  1728,  p.  332;  (?)  El- 
well,  1726,  p.  335;  (?)  Ashley,  1746,  p.  338;  Hive,  1756,  p.  339.  Dix- 
well  and  Cabe,  1763,  p.  340;  (?)  V^illiams,  1797,  p.  344. 


A  REVIEW  OF  BLASPHEMY  PROSECUTIONS.  361 

tion,  and  has  not  been  repealed  by  the  Constitution,  then 
all  Universalists  and  Unitarians  as  well  as  Agnostics  and 
Infidels  are  still  penalized.  Is  there  a  court  so  bigoted 
as  to  enforce  this  statute  as  the  judicial  rules  for  its  con- 
struction require?  • 

Mr.  Bishop  and  all  those  who  favored  the  formation  of 
a  constitutional  government  in  Connecticut  frankly  and 
earnestly  demanded  the  repeal  of  all  these  laws,  by  means 
of  a  constitution  guaranteeing  religious  liberty  and  free 
speech.  They  finally  prevailed  and  their  purpose  was 
made  effective  and  must  be  considered  authoritative  in  in- 
terpreting the  Connecticut  Bill  of  Rights. 

This  purpose  of  the  constitutionalists  was  perfectly  un- 
derstood by  the  upholders  of  the  "established  order,"  the 
State-church.  Their  understanding  of  the  issue  of  the  con- 
stitutionalists is  made  plain  in  "Count  the  Cost,  an  ad- 
dress to  the  People  of  Connecticut."  There  the  case  of 
the  hated  constitutionalists  is  thus  stated:  "They  are 
obstinately  determined  to  banish  from  the  public  mind  all 
affection  and  veneration  for  the  clergy,  all  respect  for  the 
institutions  of  religion  and  to  reduce  Connecticut  to  the 
condition  which  knows  no  distinction  between  *him  who 
serveth  God  and  him  who  serveth  Him  not.'  "^*  That 
purpose  became  dominant  by  the  adoption  of  the  Con- 
necticut constitution.  This  then  was  the  issue  on  which 
the  constitution  of  Connecticut  was  adopted  and  supplies 
us  with  the  key  for  its  proper  interpretation. 

Various  Denials  of  Orthodoxy. — 1600-1642. 

As  illustrative  of  the  rule  that  any  repudiation  of  any 
doctrine  deemed  essential  to  religious  orthodoxy  is  a  blas- 
phemy we  may  profitably  recall  the  following  cases  already 
abstracted.  Atwood  (1605,  p.  181)  denied  the  antiquity 
of  Christian  doctrine,  and  discredited  preaching  and  divine 
service.  Bartholomew  ( 1612,  p.  182 )  repudiated  the  Nicene 
and  Athanasian  creeds,  and  other  matters  essential  to  the 
orthodox  conception  of  the  Trinity.  Wightman  (1612,  p. 
183)  repudiated  the  Apostles  Creed,  as  well  as  the  Mcene 
and  Athanasian  creeds,  denied  the  Trinity  and  disputed 

**P.  6,  Johnathan  Steadfast  [pseud.],  Hartford,  1804. 


362  BLASPHEMY. 


much  of  orthodox  interpretation  of  the  Bible.  Ogelvie 
(1615,  p.  185)  asserted  the  temporal  supremacy  of  the 
Pope.  This  also  was  a  denial  of  orthodox  interpretation 
of  Holy  Writ  as  to  the  apostolic  succession.  As  to  Dighton 
and  Holt  (1616,  p.  186)  we  know  little  more  than  that  they 
acted  "to  the  great  encouragement  of  schismatical  and  re- 
fractory persons."  Mocket  (1617,  p.  187)  probably  com- 
mitted no  greater  offence  than  to  omit  from  his  book  the 
first  clause  in  the  translation  of  the  twentieth  article  of  the 
thirty-nine  articles  of  faith.  Thus  he  denied  that  the 
Church  had  power  to  decree  rites,  and  authority  to  settle 
theologic  controversies. 

Traske  (1618,  p.  187)  believed  that  Saturday  should  be 
observed  as  the  Sabbath.  Scott  (1603-1625,  p.  188)  ques- 
tioned the  Bible  doctrine  of  witchcraft.  Pare  (1622,  p. 
190 )  disagreed  with  the  established  church  as  to  the  mean- 
ing of  the  Epistle  to  the  Komalis.  Mountague  (1626,  p.  191) 
excited  a  controversy  as  to  whether  the  orthodoxy  of  the 
King  or  of  the  Parliament  should  determine  the  guilt  of 
his  book.  Which  of  conflicting  claims  of  orthodoxy  will 
the  Connecticut  Court  apply  in  determining  what  is  blas- 
phemy? Leighton's  great  offence  consisted  largely  in  de- 
claring the  upholders  of  orthodoxy  and  persecution  to  be 
"men  of  blood  and  enemies  to  God,"  thus  repudiating  the 
established  interpretation  of  Holy  Writ.  Political  changes 
resulted  in  declaring  Leighton's  opinions  innocent  and 
orthodox.  Which  orthodoxy  is  legally  orthodox  under  the 
Connecticut  statutes? 

Pryn  (1633,  p.  208)  was  so  puritanic  as  to  oppose  the 
theatre.  This  false  doctrine  was  officially  repudiated  by 
the  Queen  taking  part  in  her  own  royal  person,  and  she 
could  do  no  wrong.  Of  course,  Pryn's  book  must  have  been 
"against  all  reverence  and  honor,  which  all  Christians  owe 
to  our  Saviour  Jesus"  who  was  reigning  through  the  royal 
family.  The  long  parliament  declares  Pryn's  convictions 
illegal.    A  new  orthodoxy  had  come  into  political  power. 

Hayden    (1634,   p.   210)    was  punished  for  preaching 
"against  setting  up  images  in  churches."    The  Connecticut 
puritans  vehemently  agreed  with  Hayden  upon  this  sub 
ject.    Will  the  court  now  assume  that  the  Colonial  puri- 


A  REVIEW  OF  BLASPHEMY  PROSECUTIONS.  363 

tans  adopted  the  common-law  conception  of  blasphemy, 
and  therefore  penalized  themselves?  Burton  (1637,  p. 
220)  denied  the  divine  right  of  the  bishops,  and  accused 
them  of  introducing  popish  innovations.  Thus  he  disputed 
the  orthodox  interpretation  of  the  Bible.  Pocklington 
( 1640,  p.  231  et  seq. )  was  penalized  for  many  minor  mani- 
festations of  a  leaning  toward  popery.  Nathaniel  Barnard 
(1640,  p.  253)  was  penalized  for  his  opinion  over  a  con- 
troversy as  to  whether  faith  was  more  important  toward 
securing  salvation  than  works.  This  brings  us  to  the 
date  of  the  adoption  of  the  Connecticut  statute  against 
blasphemy. 

Various  Denials  of  Orthodoxy. — 1642 — 1818. 

Paul  Best  (1643,  p.  258)  denied  the  Trinity.  KnoUes 
got  into  trouble  for  some  anabaptist  doctrine;  exact  infor- 
mation is  not  at  hand.  King  James'  Book  of  Sports 
(1644)  was  ordered  burnt  by  the  puritans  because  it  re- 
pudiated the  funerial  characteristics  of  the  puritan  Sab- 
bath. In  the  reign  of  James,  puritans  were  punished  for 
refusing  to  read  the  Book  of  Sports  in  their  churches. 
Which  view  will  be  declared  orthodox  in  Connecticut? 

Archer  (1645,  p.  261)  blasphemed  by  counselling  sin- 
ners to  be  comforted  because  God  was  really  the  author 
of  all  that  is,  and  sin,  after  all,  a  means  of  grace.  Biddle 
( 1647,  p.  266 )  "the  father  of  Unitarianism''  was  punished 
because  he  repudiated  the  orthodox  conception  of  the  Trin- 
ity by  denying  the  divinity  of  the  Holy  Ghost.  Clarkson's 
offense  (1645,  p.  269)  probably  consisted  in  denying  the 
religious  value  of  baptism  by  sprinkling.  Erbery's  offense 
(1646,  p.  270)  consisted  in  believing  God  too  merciful  to 
punish  anyone.  Coppe  (1650,  p.  272)  appears  to  have  suf- 
fered for  believing  in  perfectionism,  a  denial  of  sin  in  the 
elect.  Fry  (1650,  p.  273)  denied  the  Trinity  upon  Scrip- 
ture grounds. 

Robert  Non\^ood  (1651,  pp.  277-8-9)  was  imprisoned  for 
asserting  the  blasphemous  error  that  the  soul  of  man  is 
the  essence  of  God ;  that  there  is  no  heaven  or  hell  except 
what  we  experience  here  [hell  and  heaven  are  states  of 
being,  not  places] ;  and  that  man  has  a  trinity  within  him- 


364  BLASPHEMY. 


self;  the  soul  that  is  God,  the  spirit  that  is  the  devil,  and 
the  body  that  is  the  beast.  Also  that  Jesus  did  not  die 
to  pacify  God^s  wrath. 

The  Racovian  Catechism  (1652,  p.  280)  was  condemned 
for  asserting  that  the  essence  of  God  was  a  unity,  a  single 
personality.  This  denied  the  orthodox  meaning  of  the 
divinity  of  Jesus.  Keach  (1664,  p.  282)  was  convicted  of 
the  terrible  blasphemy  of  repudiating  infant  baptism  and 
that  God  had  not  chosen  the  great  but  rather  the  poor  and 
despised,  and  he  scandalized  the  Liturgy. 

Jqhn  Morgan  (1679,  p.  297)  was  too  orthodox  because 
he  received  "Holy  orders''  from  Rome.  Delaune  and 
Ralphson  (1683,  p.  301)  offended  because  they  did  not  ac- 
cept the  book  of  common  prayer.  Baxter  in  many  ways 
denied  the  divine  right  and  apostolic  succession  of  the  Ang- 
lican bishops  and  their  conception  of  protestanism  and 
therefore  was  "against  the  government."  Blount  (1693, 
p.  307)  only  reported  fairly  the  religious  views  and  argu- 
ments of  Paganism  "plausible  in  themselves,  of  the  fallacy 
of  which  none  but  men  of  parts  and  learning  can  be  proper 
judges."  John  Asgill  (1707,  p.  319)  thought  he  proved  by 
Holy  Writ  that  "death  is  not  obligatory  on  Christians,  but 
that  man  may  be  translated  hence  into  eternal  life  with- 
out passing  through  death."  Terribly  blasnhemous  of 
course ! 

Tindal  (1710,  p.  326)  argued  that  a  clergyman  is  God's 
ambassador,  and  therefore  cannot  be  appointed  by  human 
authority.  Dr.  Mead  (1723,  p.  331)  was  prevented  from 
publishing  a  book  of  Servetus,  who  himself  had  been  burnt 
at  the  instigation  of  Calvin.  Woolston  (1729,  p.  337)  con- 
tended that  the  alleged  miracles  of  Jesus  were  but  alle- 
gorical expressions  of  truth.  Ashley  (1746,  p.  338)  was 
punished  for  the  same  book  of  Woolston.  Annett  (1763, 
p.  341)  discredited  the  Pentateuch.  Is  there  an  intelligent 
judge  who  does  not  do  so  now?  Williams  (1797,  p.  344) 
was  convicted  of  blasphemy  for  publishing  Paine's  "Age  of 
Reason."  Many  others  were  later  punished  for  the  same 
offense.  Paine  was  a  Deist  and  wrote  his  book  to  defend 
God  against  the  calumnies  of  the  orthodox  church  and  of 
the  Bible.     Eaton's  offense  (1812,  p.  346)  was  identical 


A  REVIEW  OF  BLASPHEMY  PROSECUTIONS.  365 

with  Williams^  while  Houston's  crime  (1813,  p.  347)  was 
similar  in  nature. 

In  these  early  days  men  were  seldom  given  much  to  the 
sacrilege  of  disputing  whether  the  whale  swallowed  Jonah. 
Had  they  done  so,  it  would  clearly  have  been  blasphemy. 
So  it  must  now  be  blasphemy  as  a  denial  of  part  of  Holy 
Writ.  That  is  the  inevitable  consequence  if  the  common 
law  definition  is  to  be  enforced.  Furthermore,  the  com- 
mon-law conception  of  blasphemy  as  herein  portrayed  must 
be  enforced  unless  the  court  usurpes  the  legislative  func- 
tion of  altering  the  criteria  of  guilt,  or  else  declares  the 
blasphemy  statute  unconstitutional. 

Delusions  of  Grandeur. 

In  those  days  of  spiritual  joy  unbounded  and  prosecu- 
tions for  blasphemy  unrestrained,  delusions  of  grandeur 
usually  found  religious  expression  and  orthodox  suppres- 
sion. Thus  Nay  lor,  (1656,  p.  280),  Taylor,  (1675,  p.  285), 
Muggleton,  (1653-1676,  pp.  286-294),  One  of  the  Society 
of  Love,  (1678,  p.  295)  and  Susannah  Fowler,  (1698,  p. 
313),  all  came  to  grief  for  their  grandiose  religious  de- 
mentia. These  unfortunates  were  blasphemers,  vile  blas- 
phemers. When  the  religious  egomania  found  expression 
in  political  ambition,  they  were  of  course  punished  as  se- 
ditious persons.  We  have  better  ways  now.  When  de- 
lusions of  grandeur  find  religious  expression  we  now  put 
the  victims  in  an  asylum  unless  they  succeed  in  starting 
a  new  religious  society  among  those  of  nearly  their  own 
sort.  If  the  delusions  of  grandeur  express  themselves  in 
the  conventional  political  manner  we  may  send  its  victim 
to  Congress,  or  maybe  one  occasionally  gets  upon  the  ju- 
dicial bench  to  try  his  fellows  for  expressing  opinions  as 
blasphemers. 

*  It  requires  de- 
lusions of  grandeur  to  make  one  feel  himself  possessed  of 
any  absolute  truth  or  absolute  anything,  and  it  is  only 
upon  our  conscious  or  unconscious  assumption  of  an  ab- 
solute truth  that  we  are  inclined  to  punish  another  for 
expressing  even  an  impolite  disagreement. 

Tolerance  is  Blasphemy. 
In  1642,  when  the  Connecticut  legislation  provided  the 


366  BLASPHEMY. 


death  penalty  for  worshipers  of  the  wrong  God  and  for 
blasphemers,  Bible  texts  were  cited  in  justification.  In 
other  words,  the  blasphemy  statute  was  merely  deemed 
to  be  declaratory  of  the  divine  law.  This  again  points 
to  the  repeal  of  the  blasphemy  statute  by  the  automatic 
operation  of  the  Connecticut  Constitution  when  it  dis* 
established  the  State-church. 

If  expressed  heresy  must  be  punished  as  blasphemy  be- 
cause commanded  by  God  through  the  Bible,  and  if  to  deny 
the  accepted  orthodox  interpretation  of  the  Bible  is  blas- 
phemy, as  the  courts  have  often  decided,  then  it  follows 
that  to  advocate  tolerance  is  a  denial  of  a  part  of  Christian- 
ity— and  is  blasphemy  under  the  common-law.  This  very 
argument  for  tolerance  is  blasphemy  because  it  repudiates 
those  parts  of  the  Bible  which  command  prosecution. 

This  view  also  has  judicial  precedent  to  support  it.  One 
of  the  elements  of  Leighton's  crime  (1630,  p.  196)  was  a 
complaint  against  the  Bishops  as  "Men  of  blood"  because 
they  enforced  the  persecutory  conception  of  "divine  law." 
This  was  in  effect  a  plea  for  tolerance.  Likewise  with 
Wilson.  (1637,  p.  227.)  He  had  "scandalized  the  Gov- 
ernors and  Government  of  the  Church  of  England  as  perse- 
cutors of  God's  faithful  ministers  and  people,"  the  dissen- 
ters. Again,  to  complain  of  the  persecution  of  those  who 
are  only  enforcing  the  intolerance  of  God  was  a  crime. 

Among  the  many  "blasphemies"  of  Muggleton  (1653, 
pp.  289-290)  was  this,  that  he  denied  the  courts  "to  be 
judges  of  blasphemy  against  the  Holy  Spirit."  Again 
he  was  declared  a  blasphemer,  because  he  said  to  the 
court:  "We  told  you  that  you  had  no  Commission  from 
our  God  to  be  judge  of  spiritual  things."  Bury  (1690,  p. 
305)  seems  to  have  been  penalized  for  this  fine  statement 
of  the  meaning  of  tolerance :  "No  King  is  more  indepen- 
dent in  his  own  dominions  from  any  foreign  jurisdiction 
in  matters  civil,  than  every  Christian  is  within  his  own 
mind  in  matters  of  faith."  Obviously  this  was  a  denial 
of  that  essential  of  the  Christian  religion  which  asserted 
the  rule  by  divine  right.    Treason  and  Blasphemy ! 

Daniel  Defoe   (1903,  p.  316)   argued  for  tolerance  by 
an  ironical  justification  of  the  extirpation  of  all  dissenters. 


A  REVIEW  OP  BLASPHEMY  PROSECUTIONS.  367 

For  this  he  was  imprisoned,  and  quite  properly  so  from 
the  viewpoint  that  to  ridicule  or  heap  contempt  upon  any 
part  of  Holy  Writ  is  to  be  guilty  of  blasphemy.  Mathew 
Tindall  (1710,  pp.  329-330)  claimed  that  the  people  had 
the  right  to  defend  their  rights  against  a  person  who  had 
no  authority  to  take  them  away.  This  intelligent  declara- 
tion of  freedom  also  was  made  a  subject  of  criminal  indict- 
ment. 

The  Connecticut  colonists  came  from  Massachusetts 
and  brought  their  theocratic  notions  with  them.  The  Mas- 
sachusetts statute  against  blasphemy  also  cited  Bible 
passages,  to  exhibit  their  subordination  of  the  State  to 
the  Church.  A  Massachusetts  precedent,  therefore,  be- 
comes of  great  importance  in  Connecticut. 

Punished  For  Tolerance. 

Koger  Williams  was  banished  from  the  Massachusetts 
colony  probably  in  1636.  That  is  before  the  departure  of 
the  Connecticut  Colonists.  When  in  1642  the  latter  adopt- 
ed a  statute  against  blasphemers  and  cited  passages  from 
the  Bible  in  justification,  it  should  be  presumed  that  they 
incorporated  into  that  statute  the  previous  interpretation 
of  the  Massachusetts  colony.  It  will  appear  that  this  in- 
terpretation was  in  perfect  harmony  with  the  English 
rule,  that  the  denial  of  any  part  of  the  Bible  was  blas- 
phemous. It  will  now  be  shown  that  to  advocate  tolerance 
when  the  Bible  had  commanded  intolerance,  was  adju- 
dicated a  crime. 

Koger  Williams  was  banished  from  Massachusetts  by 
a  court  which  had  already  decided  "that  anyone  was 
worthy  of  banishment  who  should  obstinately  assert  that 
the  civil  magistrate  might  not  intermeddle  even  to  stop 
a  church  from  apostacy  and  heresy."^^  Later  it  will  be 
shown  more  fully  just  what  was  Roger  Williams'  concep- 
tion of  religious  liberty  and  free  speech.  Then  it  will  be 
claimed  that  his  opinions  are  authoritative  on  the  meaning 
of  these  parts  of  our  Constitution. 

Under  the  protection  of  the  Rhode  Island  Colony,  which 
Williams  founded,  he  entered  into  a  spirited  controversy 

"  Bloody  tenet  of  persecution,  p.  XV,  edition  of  Lend.,  1848. 


368  BLASPHEMY. 


in  defense  of  his  blasphemous  attack  upon  intolerance.  His 
various  pamphlets  upon  this  subject  finally  made  a  book 
which  often  has  been  reprinted.  Williams'  fundamental 
contention  was  that  the  civil  power  has  no  authority  what- 
ever over  the  human  mind  and  conscience.  The  necessary 
corollary  of  this  opinion,  was  that  the  churches  of  Con- 
necticut and  Massachusetts  as  well  as  that  Church  of  Eng- 
land was  anti-Christian  in  enforcing  blasphemy  laws.  Of 
course,  this  implication  was  blasphemous  because  in  con- 
flict with  an  essential  doctrine  of  orthodox  Christianity. 
Prynne  denounced  the  book  as  a  "lycentious  work,"  and 
the  House  of  Commons  ordered  it  burnt  by  the  common 
hangman.^^  Thus  again  do  we  have  precedent  to  the  effect 
that  the  denial  of  that  part  of  the  Bible  which  commands 
persecution  is  a  crime.  Williams  escaped  England  be- 
fore he  could  be  arrested. 

The  underlying  logic  of  this  is  made  plain  by  another 
good  New  England  authority,  Mr.  Simon  Backus.  He 
wrote  a  pamphlet  against  those  who  were  insisting  on 
framing  a  Constitution  that  provided  for  a  separation  of 
Church  and  State.  In  this  he  said:  "To  say,  therefore, 
that  there  is  no  occasion  for  the  civil  magistrate  to  inter- 
fere in  matters  of  religion,  is  either  to  contradict  plain 
and  demonstrative  fact;  [as  he  had  just  before  shown 
from  Holy  Writ]  or  else  to  charge  the  divine  author  of 
that  dispensation  with  adding  the  sanction  of  his  appro- 
bation and  the  seal  of  his  authority  to  a  useless  ^nd  un- 
necessary institution."^'^ 

Constitution  Overrules  Precedent. 

If  the  court  is  not  willing  to  hold  that  the  mere  advocacy 
of  toleration  is  a  crime,  then  this  blasphemy  statute  will 
be  declared  unconstitutional.  It  is  confidently  believed 
that  no  court  will  usurp  the  legislative  function  of 
changing  the  well-established  criteria  of  guilt  in  this 
penal  statute,  in  order  to  make  it  less  offensive  to  the  Con- 
stitution.   No  such  mere  amendment  can  wholly  eliminate 

"Jour,  of  House  of  Commons,  v.  3,  20  Car.  I,  p.  585. 

"A  dissertation  upon  the  Right  and  Obligation  of  the  Civil  Magistrate 

to  take  care  of  the  interests  of  religion  and  provide  for  its  support, 

p.  15. 


A  REVIEW  OF  BLASPHEMY  PROSECUTIONS.  369 

the  conflict  between  blasphemy  prosecutions  and  consti- 
tutional religious  and  intellectual  liberty.  The  correct- 
ness of  this  last  statement  will  be  made  more  obvious  by 
a  thorough  study  of  the  precise  issue  which  had  been  con- 
tended for  and  which  were  decided  by  our  conatitutional 
guarantees. 

Witchcraft  and  Common  Law. 

A  most  important  part  of  the  Christian  religion  and  of 
Holy  Scripture,  according  to  the  dominant  conception  in 
Connecticut  and  England  of  1642  and  after,  was  a  bei- 
lief  in  Witchcraft.  It  would  seem  to  follow,  as  a  logical 
necessity  from  the  juridical  meaning  of  "blasphemy,"  in 
1642,  that  it  included  a  denial  of  those  parts  of  Holy 
Scripture  which  declare  or  assume  the  truth  of  witch- 
craft. This  is  in  harmony  with  both  the  legal  and  ecclesi- 
astical thought  of  the  time,  both  in  England  and  in  Con- 
necticut. 

I  have  just  read  a  book  entitled :  "A  Tryal  of  Witches 
at  the  Assizes  held  at  Bury  St.  Edmonds  for  the  county 
of  Suffolk  on  the  tenth  day  of  March,  1664,  before  Sir 
Mathew  Hale,  K.T.,  then  Lord  Chief  Baron  of  His  Majes- 
ties' Court  of  Exchequer,"  published  in  1682.  Therein  is 
a  record  of  instructions  given  to  jurors,  which  reads  as 
follows:  "That  there  were  such  creatures  as  witehes  he 
(Lord  Hale)  made  no  doubt  at  all;  For  first,  the  scrip- 
tures had  affirmed  so  much.  Secondly,  the  wisdom  of  all 
nations  had  prodded  laws  against  such  persons,  which  is 
an  argument  of  their  confidence  of  such  a  crime.  And 
such  hath  been  the  judgment  of  this  kingdom  as  appears 
by  that  act  of  parliament  which  had  provided  punishments 
proportionable  to  the  quality  of  the  offense.  And  desired 
them  strictly  to  observe  their  evidence;  and  desired  the 
great  God  of  Heaven  to  direct  their  hearts  in  this  weighty 
matter  they  had  in  hand;  for  to  condemn  the  innocent, 
and  to  let  the  guilty  go  free,  were  both  an  abomination  to 
the  Lord"  fp/.^O). 

"Tn  conclusion  the  judges  and  all  the  court  were  fully 
satisfied  with  the  verdict,  and  thereupon  gave  judgment 
against  the  [13]  witches  that  they  should  be  hanged.  .  .  , 


370  BLASPHEMY. 


And  they  were  executed  on  Monday,  the  seventeenth  of 
March  following,  but  they  confessed  nothing."^^ 

A  century  later  the  learned  Sir  William  Blackstone 
said:  "To  deny  the  possibility,  nay,  actual  existence  of 
witchcraft  and  sorcery,  is  at  once  flatly  to  contradict  the 
revealed  will  of  God  in  various  passages  of  both  the  Old 
and  New  Testament,  and  the  thing  itself  is  a  truth  to 
which  every  nation  in  the  world  hath  in  its  turn  born 
testimony,  either  by  example  seemingly  well  tested,  or  by 
prohibitory  laws  which  at  least  suppose  the  possibility 
of  commerce  with  evil  spirits/'^^  But  to  flatly  contradict 
^^ani/  parf  of  the  holy  scriptures  was  blasphemy,  accord- 
ing to  the  common  law  authorities.  Therefore,  to  deny 
witchcraft  is  a  crime  today  under  the  Connecticut  statute 
against  blasphemy,  which  was  passed  in  1642,  and  which 
is  now  sought  to  be  enforced. 

In  New  England  the  following  "authorities"  were  used 
in  support  of  Witchcraft: 

Keeble,  Common  Law,  Chapter  on  Conjuration,  pp.  217- 
220. 

Sir  Matthew  Hale's  Tryals  of  Witches,  1682. 

Glanville's  Collection  of  Sundry  Trials  of  Witches  in 
England  and  Ireland  in  the  years  1658-61-64-81. 

Bernard's  Guide  to  Jurymen. 

Baxter  and  Burton,  Histories  about  Witches. 

Cotton  Mather,  Memorable  Providences  relating  to 
Witchcraft. 

Of  course  these  authorities  in  turn  rested  upon  "Holy 
Writ"  itself. 

The  Bible  and  Witchcraft. 
To  make  it  still  more  plain  that  a  denial  of  witchcraft 
is  the  denial  of  an  important  doctrine  of  the  Bible,  and, 
therefore,  of  Christianity,  as  that  still  is  understood  by 
many  and  as  that  was  generally  understood  during  the 
eighteenth  century  and  before,  we  will  now  quote  a  few 
of  the  many  Bible  passages  which  expressly  or  impliedly 
aflSrm  the  belief  in  Witchcraft: 


"  Sec  also  Annals  of  Witchcraft,  by  Drake,  preface,  p.  81. 
"Blackstone  Commentaries,  p.  59,  edition  of  1850. 


A  REVIEW  OF  BLASPHEMY  PROSECUTIONS.  371 

1.  "Thou  Shalt  not  suffer  a  witch  to  live."  Exodus  xxii, 
18. 

2.  "There  shall  not  be  found  among  you  anyone  that 
maketh  his  son  or  his  daughter  to  pass  through  fire,  or 
that  useth  divination »  or  an  enchanter,  or  a  witch,  or  a 
charmer,  or  a  consulter  with  familiar  spirits,  or  a  wizard, 
or  necromancer."    Deut.  xviii,  10-11. 

3.  "A  man  also,  or  woman,  that  hath  a  familiar  spirit, 
or  that  is  a  wizard,  shall  surely  be  put  to  death :  they  shall 
stone  them  with  stones."    Lev.  xx,  27. 

4.  "He  observed  times,  and  used  enchantments,  and 
used  witchcraft,  and  dealt  with  a  familiar  spirit,  and 
with  wizards:  he  wrought  much  evil  in  the  sight  of  the 
Lord,  to  provoke  him  to  anger."    2  Chronicles  xxxiii,  6. 

5.  "Now  the  works  of  the  flesh  are  manifest,  which  are 
these:  adultery,  fornication,  uncleaness,  lasciviousness, 
idolatry,  witchcraft,  ♦  ♦  *  seditions,  heresies."  Gal.  vi, 
19-20. 

6.  "And  it  came  to  pass,  when  Joram  saw  Jehu,  that 
he  said,  is  it  peace  Jehu?  And  he  answered,  what  peace, 
so  long  as  the  whoredoms  of  your  mother  Jezebel  and  her 
witchcrafts  are  so  many?"    2  Kings  ix,  22. 

7.  "Because  of  the  multitude  of  the  whoredoms  of  the 
well-favored  harlot,  the  mistress  of  witchcrafts,  that  sel- 
leth  nations  through  her  whoredoms,  and  families  through 
her  witchcrafts."    Nahum  iii,  4. 

8.  "And  the  soul  that  turneth  after  such  as  have  famil- 
iar spirits  and  after  wizzards  that  go  a  whoring  after 
them,  I  will  even  set  my  face  against  that  soul  and  will 
cut  him  off  from  among  his  people."    Lev.  xxii,  6. 

9.  "Saul  had  put  away  those  that  had  familiar  spirits 
and  the  wizards  out  of  the  land."    Samuel  xxxviii,  3. 

10.  "For  rebellion  is  as  the  sin  of  witchcraft."  Samuel 
XV,  23. 

11.  "And  I  will  cut  off  witchcraft  out  of  the  land.'' 
Micah  V,  12. 

12.  "Many  of  them  also  which  used  curious  arts  brought 
their  books  together  and  burned  them."    Acts  xix,  19. 

13.  "But  there  was  a  certain  man  called  Simon,  which 


372  BLASPHEMY. 


before-time  in  the  same  city  used  sorcery  and  bewitched 
the  people  of  Samaria. '^  Acts  viii,  9. 

14.  "If  a  man  abide  not  in  me,  he  is  cast  forth  as 
a  branch,  and  is  withered,  and  men  gather  them  and  cast 
them  into  the  fire,  and  they  are  burned."    John  xv,  6. 

"In  the  opinion  of  the  eminent  Italian  Jurist,  Bartolo, 
witches  were  burned  alive  in  early  times  on  this  [last] 
authority."^^ 

Blasphemy  to  Deny  Witchcraft  in  Connecticut. 

The  New  England  indictments  against  witchcraft  read : 
"entertaining  familiarity  with  Satan,  the  enemy  of  man- 
kind, and  by  his  help  doing  works  above  the  course  of 
nature."     (Ibid.) 

In  Connecticut  (1642)  we  find  this  law  against  witchery : 
"If  any  man  or  woman  be  a  witch — that  is,  hath  or  con- 
sulted with  a  familiar  spirit — they  shall  be  put  to  death. 
Exodus  xxii,  18;  Leviticus  xx,  27;  Deuteronomy  xviii,  10, 
ll."2i 

In  the  New  Haven  Colony,  1655,  it  was  provided:  "If 
any  person  be  a  witch,  he  or  she  shall  be  put  to  death, 
according  to  Exodus  xxii,  18 ;  Leviticus  xx,  27 ;  Deuterono- 
my xviii,  10,  ll."22 

Fairly  complete  accounts  of  the  enforcement  of  these 
laws  are  contained  in  "The  Witchcraft  Delusion  in  Colo- 
nial Conn.,  1647-1697,  by  John  M.  Taylor."  There  can  be 
no  doubt  whatever  that  a  belief  in  Witchcraft  was  an 
essential  part  of  the  belief  in  the  "Holy  Scriptures,"  ac- 
cording to  the  official  religion  of  the  Connecticut  Colonies 
till  long  after  1642.  This  is  so,  whether  we  view  the  official 
religion  as  local  and  particular,  or  view  it  as  identical 
with  the  official  religion  established  in  England  . 

We  have  also  seen  that  according  to  the  Common-law 
the  denial  of  "any  part"  of  the  Christian  religion  or  the 
"Holy  Scriptures"  constituted  blasphemy.  It  inevitably 
follows  that  the  Connecticut  statute  against  blasphemy, 
whether  interpreted  according  to  the  obvious  convictions 

**  The  Witchcraft  Delusion  in  Colonial  Connecticut,  1647-1697,  by  John 

M.  Taylor,  p.  17, 
■*  Colonial  Records  of  Connecticut,  vol.  1,  p.  IT. 
"New  Haven  Colonial  Records,  vol.  11,  p.  576,  Code  1655. 


A  REVIEW  OF  BLASPHEMY  PROSECUTIONS.  373 

of  those  who  passed  the  law,  or  according  to  the  principlea 
of  the  Common-law,  it  penalizes  the  denial  of  Witchcraft. 
This  finds  a  precedent,  when  James  I  of  England  ordered 
the  burning  of  Scots'  most  scholarly  "Discovery  of  Witch- 
craft."   (pp.  188-190  herein.) 

It  is  believed  that  there  is  not  a  court  in  this  country 
that  has  the  courage  or  the  disposition  to  enforce  this  blas- 
phemy statute  according  to  the  letter  and  purpose  of  those 
who  passed  it.  Neither  has  the  court  any  constitutional 
authority  to  alter  that  established  interpretation  or  that 
purpose,  because  this  would  be  tantamount  to  the  judicial 
amendment  of  the  statute.  The  very  essence  of  a  legisla- 
tive amendment  consists  in  an  alteration  of  the  criteria 
of  guilt.  Neither  can  the  Common-law  import  of  "blas- 
phemy," nor  the  evident  legislative  intent,  be  reconciled 
either  with  the  fair  import  of  the  words  of  our  constitu- 
tional guarantees,  with  their  historical  interpretation,  or 
with  the  purpose  of  those  who  demanded  and  caused  the 
constitutional  guarantees  to  be  adopted  into  our  organic 
law. 

From  these  considerations  it  would  seem  to  follow  quite 
conclusively  that  thia  statute  must  be  declared  unconsti- 
tutional. 


XIX. 

PSYCHOLOGY  OF  FEAR,  DEMOCRACY 
AND  FREE  SPEECH. 

Mr.  H.  N.  Brailsford  has  recently  reminded  us  once 
again  that,  "the  human  factor  in  politics  is  vastly  more 
important  than  paper  constitutions/'  It  is  very  plain  to 
me  that  our  present  numerous  censorships  cannot  be  jus- 
tified out  of  our  constitutions  but  are  read  into  them. 
Manifestly  here  we  are  not  dealing  with  an  objective  con- 
sideration of  a  legal  problem  but  with  the  psychologic 
status  and  imperatives  of  judges.  Therefore,  it  is  of  im- 
portance that  we  endeavor  to  understand  this  psychic 
aspect  of  the  problem  perhaps  as  a  means  of  ultimately 
aiding  in  the  enlargement  of  our  liberty. 

To  achieve  the  most  intelligent  constitutional  con- 
struction we  must  possess  an  understanding  of  the  be- 
havior of  the  emotional  forces  which  have  supplied  even 
unconscious  impulses  toward  censorship  and  which  may 
supply  the  unconscious  predeterminants  with  which  we 
approach  the  construction  of  the  free  speech  guarantees 
of  our  organic  law.  By  becoming  more  conscious  of  the 
genesis  and  behavior  of  the  impulses  that  make  for  tyranny 
we  tend  to  become  more  efficient  at  checking  our  lust  for 
power  according  to  the  requirements  of  democratic  devel- 
opment. But  we  never  will  understand  the  larger  meaning 
of  democratic  development  unless  we  understand  the  state 
of  mind  which  it  implies  just  as  well  as  we  understand  its 
outward  manifestations.  We  can  be  deceived  by  seeming 
democratic  forms  and  institutions,  unless  we  also  have  a 
thorough  understanding  of  the  various  mental  states 
which  these  may  symbolize. 

In  legal  arguments  there  is  a  uniform  absence  of  the 
psychologic  viewpoint.  The  cause  for  this  is  not  properly 
to  be  ascribed  to  its  unimpoi'tance.*  The  condition  is 
better  explained  by  the  fact  that  the  lawyer's  usual  uni- 
versity education  has  never  yet  afforded  him  an  oppor- 
tunity to  study  genetic  and  evolutionary  psychology.     It 

374 


FBAR^    DEMOCRACY    AND     FREE     SPEECH  375 

is  this  viewpoint  which  is  being  emphasized  in  this  dis- 
cussion.        ^ 

The  Static  Concept  of  Law. 

For  the  want  of  a  conscious  genetic  and  evolutionary 
concept  of  law,  the  lawyer  is  almost  compelled  to  act  and 
think  as  if  the  law  were  a  static  thing,  even  as  to  that  part 
of  the  law  which  finds  its  only  formulation  in  judicial 
opinions.  Hence  we  blindly  follow  the  words  of  Black- 
stone,  Kenyon,  Mansfield  and  the  rest,  when  we  define 
liberty  of  the  press  under  our  constitutions.  Even  when 
we  lawyers  do  think  of  the  law  as  a  growing  thing,  it  will 
usually  be  thought  of  as  a  growth  of  something  outside 
ourselves  just  as  we  think  of  a  tree  growing.  We  seldom 
think  of  the  law  as  a  mere  symbolism  for  a  growth  in 
the  desire  and  the  understanding  of  human  beings. 

From  the  relatively  static  concept  of  law  there  follows 
the  extravagant  over-valuation  and  misuse  of  the  verbal- 
ism of  precedents.  In  consequence  of  this,  legal  argu- 
ments resolve  themselves  largely  into  disputes  about  the 
acquired  meaning  of  words  rather  than  painstaking  effort 
to  understand  the  behavior  of  the  conscious  and  subcon- 
scious forces  which  determine  the  choice  of  the  words  and 
verbal  forms,  and  control  the  changing  concepts  which 
these  legal  formulas  symbolize. 

Evolutionary  Concept  of  Law. 

A  more  enlightened  view  would  induce  lawyers  to  con- 
cern themselves  less  with  the  backward  look  in  search  of 
tyrannous  precedents  to  be  parroted,  and  more  with  a  for- 
ward look  in  an  earnest  effort  to  promote  intellectual  evo- 
lution in  relation  to  law.  From  this  viewpoint  the  formal 
statements  of  the  law  are  reduced  to  mere  symbols  of  a  vital 
human  growth. 

The  more  important  thing  then  is  to  understand  the 
changing  and  growing  concept  symbolized,  rather  than 
to  quarrel  about  the  word  symbols  in  which  it  may  be 
expressed.  Quite  as  often  does  the  "law"  change  by  in- 
jecting new  meanings  into  the  old  word-symbols  as  by 
changing  the  formulas  themselves.  It  is  this  that  gives 
the  use  of  precedent  its  sinister  possibilities,  whenever 


376  BLASPHEMY 


more  emphasis  is  placed  upon  using  the  old  formula  than 
is  placed  upon  understanding  the  varying  mental  contents 
which  it  may  express.  Again,  this  changing  mental  con- 
tent cannot  be  adequately  understood  except  in  relation 
with  a  concept  of  intellectual  evolution.  Only  thus  can 
we  understand  the  reason  of  the  law  in  its  best  sense. 
Thus  far  I  know  of  no  court  that  has  exhibited  any  such 
understanding  of  the  psycho-genetic  and  evolutionary  as- 
pects of  the  free  speech  problem,  as  that  is  presented  under 
our  American  constitutions.  The  time  therefore  should  be 
ripe. 

From  the  psychologic  viewpoint  the  growth  of  the 
law  expresses  an  evolution  in  our  desires,  accompanying 
a  similar  evolution  in  our  understanding  of  the  relations 
and  beha^dor  of  humnns.  The  formal  statement  we  call 
law  is  but  the  outward  symbolization  of  the  feelings  and 
thoughts  of  men.  Often  the  words  remain  the  same,  while 
a  revolution  goes  on  as  to  the  mental  content  which  the 
words  symbolize.  From  this  viewpoint  we  cannot  approach 
a  full  understanding  of  the  law  without  understanding  the 
impulses  and  desires  of  the  men  who  frame  or  declare  the 
law.  These  desires  must  be  understood  in  their  psycho- 
genetic  sense  rather  than  in  their  verbal  expression. 

Toward  Democracy  and  Free  Speech. 

A  retrospect  on  the  evolution  of  society  and  the  state 
Bhows  a  general  growth  towara  the  more  thorough  demo- 
cratization of  human  institutions.  It  behooves  us  there- 
fore to  study  our  problem  also  in  its  relation  to  the  psy- 
chology of  democracy  and  its  opposite. 

When  our  personal  interests  are  seen  or  felt  to  be  in  con- 
flict with  the  interests  of  that  whole  of  which  we  are  but 
a  small  part,  then  we  tend  to  resent  the  "dangerous  ten- 
dency" of  democratizing  protests  or  education.  Under  such 
circumstances  we  tend  to  distrust  the  people  as  a  whole  to 
deal  intelligently  with  us,  who  are,  or  wish  to  be,  the  bene- 
ficiaries of  legalized  graft,  of  pious  privileges,  or  economic 
and  political  advantage.  Therefore,  under  varous  names 
and  pretences  sedition  and  blasphemy  are  punished  to  the 
same  extent,  that  those  who  enjoy  political  power  more 


FEAR^    DEMOCRACY     AND     FREE     SPEECH  377 

than  public  service,  do  also  fear  democracy.  When  the 
dominant  motive  is  service  and  more  democracy,  we  do 
not  fear  ihe  loss  of  political  or  other  power  and  so  we  no 
longer  desire  censorship.  For  the  same  reason  officially 
approved  education  is  usually  united  to  that  which  tends 
to  perpetuate  special  privileges  according  to  the  contem- 
porary fashion.  Therefore,  the  disadvantaged  and  disin- 
herited must  not  be  allowed  to  formulate  their  own  griev- 
ances in  their  own  way,  nor  to  acquire  that  kind  of  educa- 
tion which  will  make  them  more  efficient  at  understanding 
the  shortcomings  of  the  privileged,  or  at  superceding  exist- 
ing institutions  and  superstitions,  by  something  more 
democratic  and  more  intelligently  just. 

Freedom,  Mathema'hcs  and  Anti-Privilege. 

We  penalize  only  those  opinions  for  which  we  cannot 
supply  a  mathematical*  demonstration  and  by  means  of 
which  an  efficient  privileged  minority  secure  relative  pros- 
perity and  ease  at  the  expense  of  others.  So  kings,  priests 
and  other  privileged  classes,  always  impede  the  progress 
of  democratization^  Legally  protected  "spiritual"  pre- 
tenses always  give  support  to  temporal  privileges  and 
prerogatives.  Sceptre  and  mitre,  luxury  and  want,  are 
but  different  symbols  for  anti-republican  institutions  and 
mental  attitudes. 

Mathematics  has  always  been  open  to  ridicule  and  con- 
temptuous aspersion  with  the  consent  of  mathematicians. 
Religion  and  divine  right  mastery  has  never  been  equally 
open  to  attack  with  the  consent  of  kings  or  priests.  Therein 
is  the  essence  of  an  aristocracy.  The  "truths"  of  religion 
and  the  divine  justice  of  our  economic  systems,  are  un- 
demonstrable  and  peculiarly  profitable  for  some  specially 
privileged  ones.  Mathematical  truths  are  open  to  demon- 
stration, and  democratically  serviceable  to  all  alike.  Hence 
the  difference  in  the  human  factor. 

Equality  of  education  and  experience  would  give  us 
much  more  of  the  substance  as  well  as  the  forms  of  de- 
mocracy. Those  whose  interests  are  equally  centered  on 
both  will  never  be  tempted  toward  censorship,  even  with- 
out a  written  constitution  that  prohibits  censorship. 


378  BLASPHEMY 

Those  whose  interest  in  democracy  is  limited  to  its  out- 
ward forms  will  be  tempted  to  explain  away  our  guaran- 
tees of  free  speech  so  that  the  privileged  few  may  not  have 
their  peace  of  mind  disturbed.  Is  it  not  time  that  the 
theologian  and  other  beneficiaries  of  legalized  injustice 
be  disprivileged,  and  their  theology  and  economics  be  as 
much  subject  to  ridicule  and  contempt  as  the  multiplica- 
tion table?    It  is  not  so  now. 

Aristocrats  by  Feeling. 

All  those  who  feel  like  unto  the  beneficiaries  of  privi- 
leges and  prerogatives,  even  though  unconscious  that  their 
feelings  are  of  that  class,  will  automatically  contend  for 
the  protection  and  perpetuation  of  undemocratic  inequali- 
ties, perhaps  without  any  understanding  of  the  genesis  of 
their  thought  upon  the  subject.  Even  the  victims  of 
slavery  are  thus  impelled  to  fight  for  the  enslaving  system. 
All  such  tend  to  react  automatically  against  intellectual 
freedom  when  it  is  used  to  criticise  that  which  gives  them 
a  feeling  of  grandeur.  It  is  these  deluding  feelings  that 
prolong  the  popularity  of  priestcraft^  kingship  and  bu- 
reaucracy and  of  Blackstone's  conception  of  mental  free- 
dom. Whether  conscious  or  unconscious  the  motive  and 
conduct  of  the  adherents  of  privilege  is  as  if  to  protect 
themselves  against  the  disturbance  of  their  peace  of 
mind  in  the  enjoyment  of  imaginary  or  real  parasitic 
privileges,  such  as  are  the  usual  product  of  legalized  in- 
justices and  vested  wrongs.  That  is  probably  the  chief 
disturbance  of  the  i)eace  which  they  justly  fear  from  ideas, 
and  that  fear  is  the  only  true  psycho-genetics  of  censorship, 
even  when  it  is  not  acknowledged  or  not  known  to  be  that. 
It  is  these  aristocratic  impulses,  often  not  understood  or 
only  half  understood,  that  have  brought  into  existence  the 
dogmatic  and  blind  following  of  Blackstone,  as  to  free 
speech.  It  is  these  immature  impulses  and  intellectual 
methods  that  produce  special  pleas  and  question-begging 
epithets,  in  the  effort  to  uphold  the  words  of  our  constitu- 
tional guarantees,  while  ignoring  their  historic  import, 
the  evil  to  be  remedied  and  the  corresponding  significance 
attached  to  the  words  by  the  framers  of  these  guarantees. 


FEAR^    DEMOCRACY    AND     FREE     SPEECFI  379 

Aristocratic   feeling  and   fears  induce  the  reversion   to 
Blackstone  and  intellectual  tyranny. 

I  said  that  this  was  true  of  all  those  who  feel  like  unto 
the  beneficiaries  of  legalized  injustice  and  vested  wrong. 
In  fact  they  may  be  the  victims  of  the  system  which  they 
uphold.  This  is  the  greatest  of  the  slave-virtues.  The  vic- 
tims of  witchcraft  and  of  religious  persecution  often  be- 
lieved in  the  laws  under  which  they  suffered,  though  in 
a  particular  case  they  may  have  thought  them  misapplied 
or  misinterpreted,  or  capable  of  some  advantageous  or 
insignificant  amendment.  So  also  the  feudal,  chattle  and 
wage  slaves  fought  for  slavery.  It  was  always  a  crime  to 
teach  them  the  injustice  of  the  enslaving  system.  Such 
education  "tended"  to  disturb  the  peace.  The  road  of 
progress  is  littered  with  the  shattered  remains  of  childish 
dreams  of  peace.  Intellectual  progress  and  democratic 
liberty  are  deemed  more  important  than  the  dead  calm  of 
ignorance  and  bliss  wherever  the  democratic  spirit  prevails. 
Then  we  will  insist  upon  keeping  open  the  road  to  progress 
in  democracy  even  at  the  risk  of  disturbing  the  peace. 

Unity  of  Slave  and  Master. 

There  is  in  the  feeling  of  humans  an  element  of  unity 
between  the  conscious,  willing,  parasitic  aristocrats  and 
the  satisfied  slave,  who  defends  the  system  that  really 
wrongs  him.  Both  fear  to  assume  the  independent  re- 
sponsibility which  greater  democracy  would  impose.  So 
kings,  priests,  economic  despots  and  slaves  lean  upon  each 
other  and  jointly  array  themselves  in  war  against  the  crit- 
ics of  the  system  upon  which,  through  long  habit,  they  both 
feel  themselves  to  depend.  The  relatively  intelligent  lead- 
ers and  beneficiaries  of  religious,  political  and  economic 
superstitution  and  its  most  benighted  victims,  all  tend  to 
combine  in  their  persecuting  desires.  The  intelligent  ones 
resent  the  endangerment  of  the  "right"  to  be  parasitic  and 
privileged.  The  most  ignorant  resent  the  imputation  that 
their  "sacred  wisdom"  is  the  evidence  of  their  worldly 
ignorance.  Nothing  justifies  the  inference  that  our  con- 
stitutions were  meant  to  afford  these  passions  a  special 
protection  against  criticism  which  is  always  conducive  to 


\ 


380  BLASPHEMY 

I 

their  being  outgrown.    Those  who  do  protect  them  do  not 
act  like  democrats. 

In  undemocratic  conditions  the  beneficiaries  of  things 
as  they  are  always  claim  something  like  a  property  right 
in  the  servile  devotion  of  the  "inferior"  who  is  the  source 
of  revenue  and  the  upholder  of  privilege. 

From  such  a  viewpoint  evei^y  efficient  criticism  of  the 
prevailing  system  of  church,  state  or  prevalent  system  of 
exploitation  was  of  "dangerous  tendency/'  that  is,  it  en- 
dangered the  privileges  of  the  privileged.  In  a  democracy 
no  one  can  be  protected  as  in  a  claim  of  property  in  the 
political,  economic  or  religious  beliefs  of  another.  In  such 
matters  our  constitutions  promise  a  fair  field  and  no 
favors.  Hence  there  can  be  no  such  crime  as  blasphemy, 
verbal  sedition,  or  a  constructive  disorderly  conduct,  com- 
mitted by  words  alone.  Those  who  can  enforce  such  laws 
either  know  not  the  genesis  or  nature  of  their  own  im- 
pulses or  else  they  are  possessed  by  very  crude  notions  of 
democracy.  These  then  are  read  into  our  constitutions 
and  not  read  out  of  them.  It  is  these  childlike  motives 
and  intellectual  methods  that  produce  our  Blackstonian 
constitutional  interpretations. 

Immaturity  of  Aristocracy 
In  the  face  of  actual  (as  distinguished  from  theoretic) 
democratic  equality  in  welfare  both  masters  and  slaves 
are  the  unconscious  victims  of  that  fear  of  responsible  in- 
dependence, which  characterizes  the  emotional  attitude  of 
the  child  toward  its  parent.  What  we  fear,  even  though 
foolishly,  we  also  hate.  Therefore  even  the  victims  of 
tyranny  so  often  hate  the  emancipating  freedom  and  its 
attendant  responsibility,  which  is  of  the  very  essence  of 
a  true  democracy.  Neither  the  privileged  nor  the  willing 
slaves  feel  that  they  can  exist  without  each  other.  Both 
unite  to  oppose  mental  freedom  that  compels  the  reconsid- 
eration and  revaluation  of  their  most  cherished  mutuality 
of  dependence,  and  the  revolution  of  the  theories  and  super- 
stitions by  which  it  is  upheld.  That  is  why  the  aggres- 
sive friends  of  free  speech  are  so  few.  The  framers  of  our 
constitutions  thought  the  time  had  come  to  wean  the  in- 


FEAR^    DEMOCRACY    AND     FREE     SPEECH  381 

fants  from  their  emotional  and  intellectual  dependence  and 
make  them  democratically  free.  Has  the  time  come  for 
our  courts  to  enforce  that  view? 

We  tend  to  hate  those  who  fundamentally  or  passionate- 
ly challenge  habitual  conditions  and  forms,  political, 
economic,  institutional  or  religious,  because  all  such  criti- 
cism tends  to  disturb  our  peaceful  repose  in  a  delusional 
grandeur  as  masters  or  beneficaries  of  things  as  they  are, 
beneficiaries  in  fact,  in  fancy  or  only  in  subconscious  feeling 
association.  So  the  slave  and  the  master  fight  together,  to 
perpetuate  the  system  which  in  different  ways  enslaves 
them  both.  They  are  alike  the  victims  of  childish  modes 
of  feeling,  and  of  dependence.  Our  judges  imitate  this 
mode  of  feeling  and  thinking  if  they  define  intellectual 
freedom  to  consist  in  the  absence  of  only  one  or  two  means 
of  abridgment  and  ignore  the  other  modes,  as  well  as  the 
historic  issues  of  freedom.  They  do  this  because  of  a 
childish  feeling  of  dependence  upon  things  as  they  are, 
a  fear  of  innovation  and  of  being  weaned  to  the  solid  food 
of  more  democratic  institutions.  This  I  conceive  to  be  the 
psychologic  explanation  for  the  fact  that  courts^  lawyers 
and  the  penalizable  critics  of  things  as  they  are,  have  so 
long  quietly  acquiesced  in  Blackstone,  Mansfield,  Kenyon, 
Ellenborough,  and  the  other  defenders  of  intellect  with 
a  limited  liberty  by  permission.  Our  courts  still  seem  to 
desire  to  perpetuate  that  undemocratic  system,  although 
clothing  it  in  a  meaningless  verbiage  of  freedom. 

Standard  of  Dangerous  Tendency 
Every  one  with  enough  ignorant  passion  to  be  offended 
must  of  necessity  deem  everything  to  be  of  evil  tendency 
which  questions  the  omniscience  of  this  passionate  ignor- 
ance. Passion  and  fear  of  unconventional  thoughts  or 
words  are  symptoms  of  immaturity  and  conflict,  that  is, 
of  ignorance,  and  all  these  conduce  to  the  desire  for  censor- 
ship. Our  censorial  longings  therefore  become  the  measure 
of  our  immature  passions,  and  of  our  aristocratic  leanings. 
The  inertia  of  respectable  mediocrity,  in  the  complacency 
of  its  good  natured  and  pretentious  culturine,  renders  a 
solemn  acqiuescence  to  the  demands  of  bigotry  and  mum- 


382  BLASPHEMY 

bles  plausable  excuses  in  the  cumbersome  verbiage  of  pon- 
derous "moral"  decrees.  Of  course  those  who  merely 
acquiesce  in  censorship  also  lack  the  understanding  to  see 
that  it  is  the  conduct  based  upon  passionate  and  orthodox 
ignorance  that  needs  to  he  suppressed^  rather  than  the 
idea  which  opposes  it.  Such  opposition  tends  to  stimulate 
development  though  itself  conceived  on  an  equally  imma- 
ture level.  Which  will  we  now  punish  or  suppress?  The 
actual  disturbance  and  material  injury  inflicted  by  the 
passionately  ignorant  hearer  or  reader,  or  the  speech  which 
only  tends  to  provoke  them?  Where  do  our  constitutions 
indicate  that  free  speech  means  that  the  mere  speech  may 
be  punished  as  a  preventative  of  the  former?  Can  any 
one  find  it  in  the  free  speech  guarantees?  Only  if  he  fears 
to  assume  the  responsibility  of  more  democracy  in  himself. 
But  how  can  we  know  that  it  is  only  the  passion  of  our 
ignorance  that  tempts  to  the  exercise  of  censorial  powers? 
In  the  case  of  judicial  action  I  conceive  the  tests  to  be 
clear  and  convincing.  The  judge's  utterances  will  always 
show  whether  his  judgments  are  merely  theoretic  inven- 
tions based  upon  undemocratic  desire,  or  are  founded 
upon  the  facts  of  experience,  inductively  used  to  check  the 
less  mature  impulses. 

Test  of  Experience 

If  a  man  has  delivered  a  lecture  denouncing  religion, 
the  wage  system,  courts  or  anything  else,  and  there  is  no 
actual  disturbance  of  the  peace  nor  any  material  resultant 
injury  to  any  one,  that  is  an  experimental  fact  as  to  the 
psychologic  tendency  of  his  utterance,  and  is  far  more 
conclusive  than  any  contrary  phantasy  or  speculation  of 
judge,  jury  or  legislature.  If  in  spite  of  this  test  a  judge 
submits  to  the  jury  the  question  of  the  criminality  of  that 
speech,  and  either  for  himself  or  in  his  instruction  to  the 
jury,  justifies  a  verdict  of  guilty  on  the  theory  that  such 
a  speech  has  an  unrealized  tendency  to  disturb  the  peace, 
then  he  is  inventing  a  theory  to  explain  and  justify  a  per- 
sonal emotional  urge.  The  same  is  true  if  such  a  con- 
structive psychologic  "tendency"  is  made  an  excuse  for 
circumventing    our    constitutional    guarantees.      In    the 


FEAR^    DEMOCRACY     AND     FREE     SPEECH  383 

hypothetical  case  the  tendency  and  its  constructive  breach 
of  the  peace  contradict  the  only  concrete  evidence  on  the 
subject  which  is,  that  this  speech  under  the  particular 
circumstances  of  its  delivery  did  not  produx^e  the  feared 
disturbance.  The  evil  tendency  therefore,  exists  more  in 
the  fearful  feelings  and  phantasies  of  the  judge  than  in 
the  observed  facts.  Manifestly  it  is  the  judicial  fear  and 
desire  which  then  controls  the  finding  and  not  the  evidence, 
nor  a  previously  enacted  law. 

Such  is  the  case  in  every  prosecution  for  intellectual 
offense,  no  matter  what  may  be  the  official  or  judicial  pre- 
tence. //  actual  disturbance  or  actual  and  material  injury 
had  resulted  that  could  easily  be  proven  and  would  then 
be  made  the  essence  of  the  offense,  instead  of  having  the 
prosecution  proceed  against  the  words  as  such.  In  the 
former  case  the  "crime"  would  no  longer  be  one  of  the  in- 
tellect only. 

Popular  Ideas  Shall  Not  Be  Privileged 
Men  cannot  be  prevented  from  bringing  to  religion,  poli- 
tics or  economics  all  the  weakness,  folly,  disorderly  fancies, 
disturbed  emotions  and  defective  intellectual  processes 
with  which  they  approach  every  other  problem.  No  valid 
reason  can  be  given  why  any  of  these,  more  than  mathe- 
matics, should  be  shielded  from  the  criticism  of  such  igno- 
rance or  immaturity.  Ou/r  constitutions  make  no  exception. 
If  intelligent  criticism  is  to  be  endured,  surely  the  ill  tem- 
pered criticism  of  the  uncultured  must  be  stlil  less  harmful 
either  to  morality  or  the  state.  To  fear  either  is  to  distrust 
the  people,  is  to  fear  democracy. 

If  we  ourselves  have  attained  an  intellectual  status  above 
that  of  one  who  coarsely  rails  at  our  pet  conviction,  we 
can  with  calm  amusement  listen  to  the  verbal  expression 
of  his  childish  passion  and  fancies.  If  we  have  not  attained 
to  the  superior  intellectual  level,  the  state  should  not  pro- 
tect us  from  the  discomfiture  of  our  unsettled  immaturity. 
The  other  fellow's  ignorance  is  entitled  to  equal  play,  even 
though  it  is  less  popular.  The  state  should  rather  compel 
us  to  listen  in  outward  calm,  that  our  inward  hurt  may 
urge  us  to  greater  efforts  toward  the  more  mature  attitude 


384  BLASPHEMY 


of  feeling  and  toward  greater  understanding.  It  is  by 
our  mistakes  and  pains  that  we  are  tempted  to  learn.  Our 
constitutional  guarantees  of  unabridged  intellectual  op- 
portunity are  not  limited  to  the  passionless- formulas  of 
the  mathematician,  but  are  guaranteed  to  all  humans  as 
such,  regardless  of  their  beliefs,  their  vocabulary,  their 
aesthetic  feeling  or  their  education.  If  we  read  into  our 
constitutions  any  such  distinctions  or  limitatons  then  we 
are  ourselves  but  intellectualizing  some  immature  feeling 
which  compels  us  to  ignore  facts  and  the  historical  issues 
of  theory,  upon  which  a  judgment  was  recorded  in  our 
constitutions/^/  This  judgment  reversed  the  former  practice 
and  its  supporting  theories.  Under  that  constitutional 
mandate  our  morbid  sensitiveness,  about  religion,  politics 
or  economics,  can  receive  no  protection  and  can  furnish 
no  pretext  for  penalizing  those  who  express  contempt  for 
our  pet  doctrine  any  more  than  for  mathematics. 

The  Undemocratic  Predisposition 
Those  judges  who  are  satisfied  to  adopt  Blackstone's 
definition  of  liberty  of  the  press  must  share,  even  though 
unconsciously,  some  of  the  undemocratic  fears  and  desires 
which  made  Blackstone  satisfied  with  the  prevailing 
English  method  of  curtailing  intellectual  intercourse.  The 
makers  of  our  constitutions  were  not  satisfied  therewith. 
All  censorship  create:^  and  protects  inequalities,  that  is, 
privileges.  In  other  words,  all  censorships  are  undemo- 
cratic. 

Those  judges  who  thus  approve  Blackstone's  anti- 
democratic methods  may  not  be  conscious  that  their  im- 
pulses can  be  characterized  as  undemocratic.  They  may 
even  be  so  unconscious  of  them  as  to  be  deceived  into  the 
belief  that  they  are  wholly  moved  by  external  circum- 
stances. The  psychologist  knows  better.  He  knows  that 
the  dynamics  come  from  within,  and  from  the  past,  and 
that  tliese  determine  the  use  that  we  make  of  Blackstone's 
definition.  For  the  psychologist  that  use  is  conclusive 
as  to  the  character  of  our  dominant  impulse.  Already  it 
has  been  pointed  out  that  undemocratic  censorial  desires 
are  the  evidence  and  product  of  relative  immaturity,  that 
is  parasitism.    Yet  some  law^yers  act  as  though  they  desire 


FEAR^    DEMOCRACY    AND     FREE    SPEECH  385 

to  canonize  Blackstone.  Thomas  Jefferson  consciously  de- 
sired to  "uncanonize'^  Blackstone.  That  marks  the 
difference  between  aristocratic  and  democratic  predisjK)- 
sition. 

Immature  Intellectual  Method 

The  immaturity  of  parasitic  desire  is  accompanied  by 
a  like  immaturity  of  intellectual  method.  This  exhibits  it- 
self in  the  narrowness  of  vision,  which  excludes  from 
conscousness  and  from  consideration  most,  or  all  but  one, 
of  the  past  modes  of  abridging  intellectual  liberty.  It 
likewise  ignores  the  justifications  once  offered  for  censor- 
ship, and  fails  to  ask  if  these  can  have  any  validity  under 
our  different  theory  and  form  of  government.  And  lastly 
such  intellectual  methods  always  ignore  the  issue  of  the 
great  confiict  waged  through  the  centuries,  and  which 
finally  culminated  in  our  "bills  of  rights"  effecting  a  re- 
versal of  the  policy  which  Blackstone  described  and  up- 
held. The  judge  who  ignores  all  these  factors,  blindly  to 
follow  Blackstone,  is  very  clearly  evading  the  realities  of 
his  problem  and  thereby  is  exhibiting  not  only  a  leaning 
toward  immature  and  undemocratic  desire  but  also  im- 
mature intellectual  processes.  When  will  we  reach  a  ma- 
ture stage  in  our  juridical  development?  The  manner  of 
meeting  these  issues  of  free  speech  will  supply  the  answer. 

The  beneficiaries  of  legalized  injustice  and  of  vested 
wrongs,  of  "established"  error  or  sanctified  ignorance,  al- 
ways have  feared  too  much  critical  education  of  the  masses. 
Everything  which  puts  the  beneficiaries  of  privilege  to  the 
bother  of  defending  their  "rights,"  that  is  to  say  their 
habitual  way  of  lookng  at  things  and  feeling  about  things, 
disturbs  their  peace  of  mind  and  is  of  "dangerous  ten- 
dency." Thus  are  all  censorships  begotten  and  defended. 
Our  constitutions  give  no  evidence  of  sympathy  with  this 
or  that  method  of  restraining  this  or  that  kind  of  intellec- 
tual intercourse.  Our  constitutions  declared  for  the  whole 
of  mental  freedom  and  for  all  people.  Many  there  are  who 
still  believe  the  priest  and  his  theologies,  or  the  million- 
aire and  his  millions,  more  sacred  and  useful  than  the 
chemist  and  his  formulae.  Our  constitutions  however, 
guaranteed  equality  in  freedom  and  so  no  special  pro- 


386  BLASPHEMY 


tection  can  be  given  to  the  teaching  of  theologians  or  em- 
ployers which  are  not  accorded  to  the  teachings  of  the 
chemist  and  mathematician,  or  the  revolutionary. 

Those  who  framed  our  ^bills  of  rights'-  were  not  om- 
niscient and  therefore  did  not  assume  to  possess  any  abso- 
lute truths.  Where  all  truths  are  relative,  and  all  humans 
equal  before  the  law,  there  no  opinion  whatever  can  be 
either  too  true  or  too  sacred  to  be  laughed  to  scorn.  The 
right  of  free  speech  includes  the  right  to  make  others 
laugh,  even  at  the  gods. 

Whether  we  approach  the  problem  from  the  viewpoint  of 
the  historic  methods  of  abridging  free  speech  and  with 
the  view  of  framing  a  synthetic  definition  of  free  speech,  or 
from  the  psychologic  or  democratic  viewpoint  we  always 
arrive  at  the  very  antithesis  of  Blackstone's  conception  of 
intellectual  freedom. 

The  aversion  or  fear  of  liberty  induces  a  confusion  of 
thought  as  between  unabridged  free  speech  and  the  absence 
of  only  one  or  two  modes  of  achieving  the  curtailment 
of  intellectual  activity.  We  have  seen  that  the  immature 
desires  for  censorship  and  the  accompanying  immature 
methods  by  which  the  desire  is  intellectualized,  when 
psychologically  understood  are  but  part  of  a  general  atti- 
tude toward  life  which  is  comparable  to  the  parasitism 
of  the  infant  This  means  that  censorship  is  produced  at 
the  other  end  of  the  development  from  that  at  which  we 
find  self-reliant  independence,  which  makes  us  willing  to 
take  chances  on  the  whole  of  democratic  intellectual  free- 
dom and  equality,  and  equally  willing  and  able  to  abide 
the  outcome  with  complacency. 

In  short  all  inclination  toward  censorship  is  part  of  the 
psychology  of  fear;  is  a  symptom  of  that  relative  emo- 
tional and  intellectual  immaturity,  which  fears  the  larger 
democracy,  and  justifies  the  fear  by  phantasies  and  meta- 
physical speculation,  instead  of  seeking  to  look  all  the 
realities  of  the  problem  squarely  in  the  face  and  making 
use  of  a  synthetic  view  to  check  our  relatively  infantile 
fear.  When  our  courts  achieve  that  freedom  and  scien- 
tific attitude  and  methods,  full  freedom  of  speech  will  ob- 


FEAE^    DEMOCRACY     AND     FREE     SPEECH  387 

tain  and  a  maximum  of  character  development  will  result 
to  all  from  enforcing  that  concept  of  free  speech. 

Those  whose  desires  have  reached  approximate  maturity 
will  thus  be  enabled  to  co-ordinate  the  largest  possible 
related  facts,  to  the  end  of  checking  their  immature  fears 
and  the  resultant  impulse  for  legalized  violence  for  the 
suppression  of  unpopular  ideas.  Instead  they  will  promote 
an  intellectual  dominance  by  means  of  the  absolute  free 
competition  of  all  minds,  not  only  for  the  perpetuation 
and  promotion  of  inequalities,  but  also  for  competition 
toward  a  maximum  of  service  to  the  process  of  democratiz- 
ing welfare. 

The  Feeling  of  Inferiority. 

It  is  believed  that  a  thorough  analytic  study  of  the 
psychology  of  those  favoring  censorships  would  show  that 
all  censorship  is  essentially  a  manifestation  of  the  psy- 
chology of  fear.  Generally  speaking  it  is  a  fear  to  face 
the  realities  of  their  personal,  political,  social,  economic, 
industrial  or  intellectual  status,  as  seen  by  hostile  critics. 
From  another  approach  censorship  may  be  the  expression 
of  a  desire  to  live  in  a  world  of  phantasy  wherein  we  feel 
or  act  as  though  this  is  the  best  possible  world,  at  least 
for  those  who  are  dominated  by  a  fear  of  innovation. 
From  still  another  viewpoint  this  censorial  attitude  of 
mind  may  be  expressed  as  the  product  of  a  subconscious 
fear,  that  further  democratization  (or  its  friends)  some- 
how challenge  or  threaten  our  subconscious  urge  for  the 
feeling  of  personal  worth,  or  our  desire  for  relative  im- 
portance, or  superiority.  This  vanity  is  often  but  a  feeling^ 
rather  than  an  objectively  derived  or  consciously  enter- 
tained opinion  which  we  can  or  do  justify  by  standards  of 
social  worth  or  service.  With  this;  comes  the  dread  that 
these  upstart  reformers,  whom  we  feel  to  be  so  inferior,  will 
establish  some  new  social  order  which  we  dread  to  cope 
with.  In  proportion  to  the  intensity  (not  the  conscious- 
ness) of  our  fear  of  being  made  aware  of  some  inferiority, 
just  so  strenuously  will  we  demand  a  censorship  to  avoid 
facing  that  issue.  Censorship  is  one  of  the  means  which 
can  be  efficiently  employed  to  exclude  the  arrogant  chal- 
lenge of  things  as  they  are,  or  of  those  persons  who  desire 


388  BLASPHEMY 


something  different.  This  challenge  is  always  an  unwel- 
come reminder  that  the  messenger  of  unpleasant  reality 
impliedly  claims  a  superiority  over  us,  and  we  resent  that. 
When  psychologically  considered,  our  response  of  legal- 
ized violence  toward  the  critic  is  always  the  unconscious 
confession,  not  that  necessarily  we  really  are  inferior, 
but  that  at  least  in  our  subconscious  impulses  there  lurks 
a  dominating  fear  of  becoming  conscious  of  some  inferior- 
ity. If  we  are  not  now  conscious  of  any  factor  of  our 
own  inferiority  perhaps  that  only  means  that  we  have 
crowded  the  unpleasant  facts  out  of  memory. 

Here  I  am  suggesting  psychologic  processes  and  mechan- 
isms which  are  not  yet  generally  understood.  Those  who 
may  wish  to  achieve  a  better  understanding  should  have 
themselves  psycho-analysed.  If  this  is  too  burdensome  the 
reader  may  acquire  some  understanding  of  my  meaning  by 
reading:  A.  Adler,  "The  Neurotic  Constitution.''  If  any 
wish  to  see  how  these  unconscious  fears  dominate  judicial 
action,  even  to  the  choice  of  word's  in  which  decisions  are 
expressed,  such  may  read  "The  Psychologic  Study  of  Judi- 
cial Opinion"  in  the  California  Law  Review^  Jan.  1918. 
This  last  article  is  written  by  myself.  The  intelligent  read- 
ing of  these  two  items  will  furnish  much  toward  illuminat- 
ing my  meaning  in  the  above  paragraphs,  and  in  what 
follows. 

Delusions  of  Grandeur. 

A  feeling  of  inferiority  always  tends  to  induce  com- 
pensatory delusions  of  grandeur.  Because  of  this  fact  of 
psychologic  behavior  all  religious  zeal  necessarily  ap- 
proaches more  or  less  toward  megalomania,  which  is  felt 
desirable  as  an  escape  from  present,  or  unconscious  past 
depressed  states.  Such  persons  tend  to  claim,  with  more  or 
less  vehemence,  super-morality  and  special  sanctity.  From 
this  hysterical  moral  sentimentalism  to  relative  perfect- 
ism  or  the  doctrine  of  personal  sinlessness  is  but  a  small 
step,  and  marks  the  growth  toward  feeling  and  conduct 
like  unto  that  of  an  omnipotent  and  omniscient  person. 
Only  a  little  beyond  is  the  claim  of  special  prophetic  pow- 
ers or  divine  authority.    Every  asylum  has  its  reincarnated 


389 


Jesus,  its  holy-virgin,  its  mouthpiece  of  God,  or  a  living 
God.  Many  of  those  who  came  in  conflict  with  the  blas- 
phemy laws  were  the  victims  of  such  delusions  of  grandeur, 
and  collided  with  similar  but  more  systematized  delusions, 
"established"  by  law.  Just  to  the  degree  of  intensity  that 
we  dread  the  feeling  of  inferiority,  with  the  same  intensity 
will  we  crave  that  satisfaction  which  comes  from  compen- 
sating delusions  of  grandeur.  With  equally  great  force 
will  come  a  corresponding  urge  toward  censorship,  ap- 
proaching irresistibility  if  accompanied  by  the  power  to 
impose  it. 

The  unorthodox  megalomaniacs  are  friends  of  toleration 
till  they  achieve  the  power  to  persecute.  In  the  meantime 
the  orthodox  consider  them  as  blasphemers,  because  the 
heretics  ascribe  to  humans  qualities  which  orthodoxy 
says  belong  only  to  God,  and  to  itself.  This  same  situa- 
tion from  another  point  of  view  means  that  the  heretics 
deny  the  jurisdiction  or  authority  of  the  specially  recog- 
nized or  legalized  priesthood  to  play  the  role  of  relative 
omniscience  in  matters  of  religion.  Therefore,  religious 
zeal  in  unorthodox  channels  or  zeal  for  the  irreligious,  is 
always  blasphemous.  This  is  true  because  heretical  zealots 
must  necessarily  deny  some  essential  of  orthodoxy  and  so 
impairs  its  moral  sentimentalism  and  irritates  ecclesiast, 
and  therefore  tend  to  a  disturbance  of  the  civil  peace.  That 
is  to  say,  it  'tends"  to  the  destruction  of  spiritual  aris- 
tocracy and  priestly  privileges,  and  therefore  is  resented. 
Partial  tolerance,  when  considered  psychologically,  means 
only  an  imperfect  or  mild  tendency  toward  megalomania. 
All  blasphemy  laws  and  all  censorships  manifest  only 
varying  degrees  of  intensity  and  varying  degrees  of  con- 
sciousness in  a  protest  against  democracy.  Every  form 
of  censorship  is  a  denial  of  equality  of  intellectual  oppor- 
tunity, and  of  the  indulgence  of  an  equality  of  zeal,  and 
therefore  every  blasphemy  law  is  a  denial  or  limitation 
upon  democracy.  When  there  is  a  union  of  church  and 
state,  heresy  also  tends  to  impair  the  political  prerogatives 
by  divine  right,  and  is  frankly  suppressed  for  its  de- 
mocracy. 


390  BLASPHEMY 


The  framers  of  our  constitutions  thought  the  time  had 
come  for  the  establishment  of  a  complete  democracy,  as 
to  religion.  The  time  is  now,  the  place  is  here,  and  the 
immediate  opportunity  is  in  this  case  for  the  enforcement 
of  that  democratic  ideal.  By  declaring  this  blasphemy 
law  unconstitutional,  notice  should  be  served  upon  the 
religious  megalomaniacs  that  they  are  expected  to  keep 
the  peace  even  though  that  involves  the  termination  of 
all  their  remaining  legalized  privileges  and  prerogatives, 
and  upholds  the  zealous  propagation  of  all  that  is  un- 
orthodox. The  Trinity  and  the  multiplication  table  must 
equally  submit  to  criticism,  denial,  ridicule,  or  contempt,  if 
we  are  to  uphold  democracy  in  relation  to  religion.  The 
decision  in  a  case  of  this  kind  will  show  just  how  much  of 
constitutional  democracy  some  judges  believe  in. 


CHAPTER  XX. 

OVERT  ACT  AND  ACTUAL  INJURY 

versus 
EVIL  PSYCHOLOGIC  TENDENCY. 

Now  it  is  intended  to  repeat  some  fragment  of  the  lib- 
ertarian contentions  upon  which  a  final  judgment  of 
approval  was  passed  by  our  constitutional  conventions. 
This  will  show  conclusively  that  free  speech  in  relation  with 
religious  liberty  meant  that  no  man  should  be  punished 
simply  because  those  of  contrary  opinion,  or  lovers  of  a 
different  literary  or  oratorical  style,  professed  to  believe 
that  the  disapproved  utterance  contained  an  evil  psycho- 
logic tendency. 

In  some  quarters,  notwithstanding  our  constitutional 
guarantees  for  intellectual  freedom  and  equality,  it  has 
been  thought  that  the  legislature  may  still  penalize  as 
blasphemy  any  irreligious  utterance  which,  for  any  reason 
or  for  no  reason  at  all,  some  court  and  jury  may  profess 
to  believe  possessed  of  a  tendency  toward  a  breach  of  the 
peace.  Such  views  as  to  the  meaning  of  our  constitu- 
tion seem  plausible,  just  so  long  as  we  ignore  the  ante- 
cedent history  of  these  provisions,  and  therefore  read  into 
the  constitutional  language  some  of  our  own  emotional 
attitudes  or  feeling-desires. 

In  or  after  the  seventeenth  century  no  jury  at  common- 
law  was  ever  expressly  empowered  to  create  its  own  ew 
post  facto  criteria  of  crime.  Fixing  standards  of  guilt 
was  theoretically  a  matter  of  parliamentary  legislative 
discretion,  though  the  power  has  been  frequently  usurped 
by  judges.  It  was  never  the  conceded  province  of  a  com- 
mon-law jury  to  indulge  its  own  fancy  or  legislative  dis- 
cretion, for  judging  guilt  by  its  own  whims  about  a  psy- 
chological tendency.  Only  tyrannous  legislators  and  like 
minded  judges  and  theologians,  justified  the  enactment 
of  blasphemy  laws  by  such  speculations  about  the  psycho- 
logic tendency.  But  even  then  no  such  speculation  was 
allowed  to  enter  into  the  deliberations  of  a  jury. 

391 


392  BLASPHEMY 


It  will  now  be  shown  that  in  considering  the  limits  of 
legislative  jurisdiction,  quite  uniformly  the  intelligent 
friends  of  liberty  made  the  distinction,  between  a  mere  psy- 
chologic tendency  on  the  one  hand  and  an  actual  and  ma- 
terial injury  on  the  other.  More  precisely  expressed  in 
modern  phraseology,  the  contention  which  found  approval 
in  our  constitutional  guarantees  may  be  thus  generalized: 
Before  an  expressed  idea  can  he  penalized  there  must  have 
resulted  an  actual  and  material  injury,  or  another  resul- 
tant overt  act  designed  to  produce  and  capable  of  inflict- 
ing  such  injury,  which  possibility  must  he  determined  ac- 
cording to  the  known  laws  of  the  physical  universe. 

Let  us  enter  with  an  open  mind  upon  the  following  re- 
view of  the  historic  contention  for  mental  freedom,  with 
the  fixed  determination  of  deriving  therefrom  the  true  his- 
toric meaning  of  free  speech  as  that  was  conceived  by  its 
friends,  and  by  their  successors  written  into  our  organic 
law. 

The  Beginnings  of  the  Controversy. 

Upon  the  authority  of  Tacitus,  the  learned  Peter  Bayle 
tells  us  that  it  was  the  Emperor  Augustus  who  first 
made  all  defamatory  libels  to  be  high  treason.  He  quotes 
the  historian  as  follows:  ^*  Augustus  had  revived  the 
law  concerning  violated  majesty ;  a  law  which  in  the  days 
of  our  ancestors,  had  indeed  the  same  name,  but  implied 
different  arraignments,  and  crimes;  namely,  those  against 
the  state,  as  when  an  army  was  betrayed  abroad,  when 
seditions  were  raised  at  home;  in  short,  when  the  public 
was  faithlessly  administered,  and  the  majesty  of  the 
Roman  people  was  debased:  these  were  actions,  and  ac- 
tions were  punished,  hut  words  were  free.  Augustus  was 
the  first  who  brought  libels  under  the  penalties  of  this 
wrested  law,  being  provoked  by  the  insolence  of  Cassius 
Serverus,  who  had  in  his  writings  wantonly  defamed  men 
and  ladies  of  illustrious  quality.'  For  which  reason  an- 
other historian  [Suetonius]  observes,  that  it  was  a  novelty 
to  see  a  lady  of  the  family  of  Claudii  accused  before  the 
people,  as  guilty  of  high  treason,  for  having  said  in  the 
hearing  of  a  prodigious  multitude,  that  stopped  her  coach, 
would  to  God  my  brother  would  return  into  the  world  and 


OVERT  ACT  AND  ACTUAL  INJURY         393 

lose  another  fleet,  that  there  might  be  fewer  people  at 
Rome.  The  commentators  observe  here  a  two-fold  novelty; 
one  in  the  sex  of  the  accused,  and  the  other  in  entitling  a 
simple  wish  a  treason.  *  *  ♦  I  find  in  Suetonius  that  this 
Emperor  did  not  punish  satirical  discourses  nor  writings 
that  concerned  him."  ^ 

Two  things  are  noteworthy  in  the  foregoing  statement : 
'^ Actions  were  punished  hut  words  were  free."  It  is  this 
distinction  between  overt  acts  capable  of  direct  actual  and 
material  injury,  and  mere  words,  with  a  speculation  about 
their  psychologic  tendency,  that  marks  the  difference  be- 
tween intellectual  liberty  and  the  state's  jurisdiction  to 
penalize  conduct.  The  other  important  thing  is  that  in 
Rome  a  woman  was  punished  for  wishing  the  return  of 
tyrannous  rule  over  the  people.  For  this  no  one  could  now 
be  punished. 

This  distinction  is  further  emphasized  by  the  statement 
of  Suetonius  that  the  "Emporor  did  not  punish  satirical 
discourses  nor  writings  that  concerned  him."  The  Star 
Chamber  reversed  this  by  penalizing  the  defamation  of  the 
upper  classes  but  not  giving  equal  protection  to  mere 
humans  as  such.  Tiberius  continued  the  innovation  of 
Augustus  but  later  so  extended  the  laws  as  to  punish 
those  who  attacked  his  person.  "Cremutius  Cordus  in 
vain  pleaded  that  he  had  written  nothing  offensive  against 
Tiberius,  or  the  Empress.  ♦  ♦  *  This  was  not  sufficient  to 
clear  him  of  his  pretended  crime  of  having  praised  Brutus 
and  Cassius."  Cordus  insisted  upon  the  contrast  between 
criminal  overt  acts  and  mere  words.  He  said :  ^'I  am  so 
guiltless,  conscript  father ,  that  my  words  only  are  accused/^ 

Under  the  reign  of  Augustus  there  were  no  false  pre- 
tences, of  a  concern  for  the  defamer,  or  a  desire  to  protect 
him  against  assault.  Then  the  claim  was  that  "a  subject 
who  defames  his  neighbor,  usurps  one  of  the  rights  of  the 
sovereign,  and  that  it  belongs  solely  to  the  sovereign  to 
inflict  the  pain  o^f  infamy."^  Here  also  have  we  submitted 
to  a  reversal  of  theory.     Under  the  common  law  all  sorts 

*  Historical  ai>d  critical  dictionary,  second  edition,  vol.  5,  pp.  743-746. 
'Peter  Bayle;  Historical  and  critical  dictionary,  2nd  edition,  v.  5, 
pp.  745. 


394  BLASPHEMY 

of  libels  were  punished  frankly  to  perpetuate  the  existing 
regime,  political  and  religious.  In  other  words  the  British 
punished  libels  as  a  means  of  protecting  the  beneficiaries 
of  vested  wrongs  and  legalized  injustices.  In  America  we 
no  longer  punish  such  conduct  under  the  name  of  lihehy 
or  verbal  sedition.  We  call  it  "disorderly  conduct"  which 
is  disorderly  or  injurious  only  by  construction.  We  justify 
this  under  the  false  pretence  of  protecting  heretics  against 
being  assaulted.  Thus  to  change  the  name  of  an  offense, 
and  to  add  a  false  pretence,  often  passes  for  free  spteeh, 
mental  liberty  and  equality  of  intellectual  opportunity. 
How  much  longer  will  this  continue  to  be  so?  Can  it  sur- 
vive direct  attack  by  the  method  of  historic  interpreta- 
tion of  our  constitutions?     We  will  see. 

This  brief  recital  and  critical  comment  has  been  m&de 
to  enable  us  to  see  our  problem  in  larger  perspective  and 
in  its  wider  scope.  In  doing  so  we  do  not  forger  that  thus 
we  are  going  a  little  beyond  the  narrow  range  of  religious 
liberty,  in  recognition  of  the  fact  that  there  is  a  unity  in 
all  intellectual  freedom. 

Saint  Hilary,  about  A.  D.  335. 

Let  me  emphasize  a  little  further  the  antiquity  of  the 
distinction  which  is  now  being  urged.  We  will  quote  two 
more  early  statements  and  then  pass  on  to  the  seventeenth 
and  eighteenth  centuries.  We  now  begin  with  Saint  Hilary. 

"Much  they  suffered  in  the  days  of  Cons  can  tine,  unto 
whom  the  words  of  Hilary  in  this  case  are  worthy  con- 
sideration: Let  (saith  he)  your  clemency  take  care  and 
order,  that  the  Presidents  of  the  provinces  look  to  Public 
Civil  Affairs,  which  alone  are  committed  to  them,  but  not 
meddle  in  things  of  religion,  and  again :  Let  your  gentle- 
ness suffer  the  people  to  hear  them  teaching  whom  they 
desire,  whom  they  think  well  of,  whom  they  choose."^  As 
we  approach  nearer  to  our  own  time  the  statement  of 
the  distinction  between  "religious"  and  "civil"  affairs,  as 
effecting  the  jurisdiction  of  the  state,  will  grow  in  clarity. 


'A  peace-offering  in  an  apology  and  humble  plea  for  indulgence  and 
liberty  of  conscience  [John  Owen]  London,  1667,  p.  26. 


OVERT    ACT    AND    ACTUAL    INJURY  395 

Theodosian  Code,  A.  D.  438. 

Says  the  learned  Peter  Bayle,  in  1738 :  "But  upon  this 
head  can  anything  be  nobler  than  this  edict  [A.  D.  438] 
of  the  Emperor  Theodosius?  ♦  ♦  ♦  <lf  any  person,  void 
of  modesty  and  shame,  shall  by  wicked  and  slanderous 
detraction,  go  about  to  blast  our  reputation,  and  wantonly 
traduce  and  defame  our  government,  it  is  our  pleasure  that 
he  be  not  subjected  to  punishment  nor  suffer  any  hard- 
ship  or  severity  on  that  account,  because,  if  this  proceeded 
from  levity,  it  ought  to  be  despised,  if  from  madness,  it 
deserves  pity  and  compassion,  if  from  a  design  to  do  an 
injury,  it  ought  to  be  forgiven.  We  therefore  will  that  no 
man  be  punished,  or  prosecuted  for  such  slanderous  speech- 
es, and  that  they  be  referred  to  our  cognizance  that  we  may 
weigh  and  consider  the  saying  of  men  by  their  characters, 
and  may  judge  whether  they  ought  to  be  passed  by  or  in- 
quired into.'  "*  Why  is  not  that  a  perfect  statement  of  the 
import  of  free  speech  in  relation  to  religion? 

In  this  Theodosian  Code  we  see  the  same  distinction  im- 
plied namely,  between  a  mere  expressed  and  inefficient  de- 
sire to  do  harm  and  an  overt  act  capable  of  inflicting  actual 
and  material  injury.  Now  let  this  matter  stand  as  a  back- 
ground against  which  we  will  silhouette  the  more  mod- 
ern controversy  for  intellectual  freedom.  In  order  to  put 
emphasis  upon  the  historic  issues  which  culminated  in  our 
constitutional  guarantees,  let  u®  skip  the  intervening  de- 
velopment of  this  conflict,  down  to  Martin  Luther  and  then 
skip  to  the  seventeenth  century.  From  here  onward  we 
will  confine  that  material  more  closely  to  the  subject  of 
religious  liberty. 

Martin  Luther  (about)  1535. 
The  real  fight  for  religious  liberty  found  its  first  effi- 
cient exponent  through  the  reformation  inaugurated  by 
Martin  Luther  (1484-1546).  It  is  said  that,  "In  the  early 
part  of  his  career  he  was  one  of  the  most  intolerant  cham- 
pions of  the  papal  authority."  Perhaps  he  was  one  who 
could  live  and  grow,  and  so  felt  no  fear  of  inconsistency. 

•  Peter  Bayle:  Historical  and  critical  dictionary,  2nd  edition,  v.  5, 
p.  760. 


396  BLASPHEMY 


As  a  chief  factor  in  the  movement  his  words  are  of  very 
great  importance. 

In  his  book  on  the  civil  magistrate  he  says  this :  "The 
laws  of  the  civil  government  extend  no  further  than  over 
the  body  or  goods,  and  to  that  which  is  external :  for,  over 
the  soul  God  will  not  suffer  any  man  to  rule,  only  he  him- 
self will  rule  there :  therefore,  wheresoever  the  civil  magis- 
trate doth  undertake  to  give  laws  unto  the  soul  and  con- 
sciences of  men,  he  usurpeth  that  government  to  himself, 
which  appertaineth  to  God."* 

M S 1644. 

This  next  quotation  is  from  an  anonymous  author.  Its 
importance  lies  only  in  the  suggestion  that  there  is  a  duel 
psychologic  tendency  to  be  considered.  There  is  a  tend- 
ency to  a  disturbance  of  the  peace  always  resulting  from 
a  suppression  of  utterance  which  is  more  dangerous  than 
the  speech  itself. 

"External  compulsion  in  matters  of  Religion,  is  of  a 
proper  and  direct  tendencies,  to  make  men  twofold  more 
the  children  of  sin  (and  so  of  wrath)  than  they  were  be- 
fore, or  would  be  otherwise."^ 

Modem  psychologists  who  specialize  on  the  behavior  of 
the  emotions  have  confirmed  this  view  of  the  psychologic 
tendency  of  forcible  repression,  almost  to  a  demonstration. 
If  any  desire  is  suppressed  by  force  rather  than  the  desire 
itself  being  developed  to  change,  the  immediate  effect  is  to 
intensify  that  desire.  If  in  this  condition  its  natural  ex- 
pression is  effectively  suppressed,  then  the  result  is  that 
the  repressed  energies,  find  some  compensatory  outlet.  Usu- 
ally this  is  more  indirect  and  more  anti-social  than  a  mere 
speech  could  be.  Thus  come  all  those  hysterical  manifesta- 
tions which  in  their  further  development  produce  so  large 
a  share  of  criminals  and  of  the  insane.      Yet  there  are 

♦Tracts  on  liberty  of  conscience  and  persecution,  1614-1661.  Ed- 
ited by  the  Hanserd  Knollys  Society  with  an  historical  intro- 
duction by  Edward  Bean  Underbill.  London,  1846.  p.  220, 
citing:  Luther's,  Sammtliche  Schriften,  lOr,  Th.  ss.  438,  452. 
Halle,  1742.  For  similar  sentiments  see  also:  pp.  23,  93,  121,  300, 
360,  and  elsewhere  in.  Tracts  on  liberty  of  conscience,  etc. 

•M.  S.  to  A.  S.  with  a  Plea  for  libertie  of  conscience.  Lond.  1644. 
p.  55. 


OVERT    ACT    AND    ACTUAL    INJURY  397 

many  so  ignorant  of  psychology  as  to  believe  that  a  jury  of 
farmers  and  shop-keepers  are  able  to  weigh  up  and  balance 
the  psychologic  tendencies  involved  in  such  matters. 

John  Milton — 1644. 

John  Milton  (1608-1674),  of  immortal  fame,  published 
his  "Areopagitica''  in  1644.  On  the  establishment  of  the 
Protectorate  he  became  Secretary  under  Cromwell,  and 
later  quite  naturally  perhaps  was  imprisoned  by  order  of 
the  Commons.  In  1683  some  extracts  of  his  book  were 
burned  at  Oxford.  Those  judges  who  wish  to  believe  that 
the  fight  for  intellectual  freedom  was  only  a  demand  for 
the  repeal  of  laws  creating  previous  restraint  and  leaving 
punishment  after  publication  for  disapproved  opinions, 
need  to  read  the  whole  of  Milton's  famous  tract.  One 
looks  in  vain  for  such  distinction  as  our  courts  some- 
times assert,  although  Milton  wrote  when  the  previous  re- 
straint was  in  force.  Unfortunately  he  felt  too  intensely 
about  Catholics  to  make  it  possible  to  apply  his  general 
priuciples  to  them.  In  this  respect  his  friend  Roger 
Williams  was  more  consistant.  All  of  Milton  might  well 
be  reproduced  here,  but  space  limits  give  room  for  only  a 
few  paragraphs  (from  the  Grolier  edition,  1890)  showing 
how  unafraid  he  is  of  the  spooks  of  dangerous  psychologic 
tendency. 

"Till  then,  books  were  ever  as  freely  admitted  into  the 
world  as  any  other  birth;  The  issue  of  the  brain  was  no 
more  stifled  than  the  issue  of  the  womb  (p.  38).  *  *  *  *To 
the  pure  all  things  are  pure,'  not  only  meat  and  drinks, 
but  all  kind  of  knowledge,  whether  of  good  or  evil;  the 
hnoicledge  cannot  defile^  nor  consequently  the  hooks,  if 
the  will  and  conscience  be  not  defiled.  For  books  are  as 
meats  and  viands  are;  some  of  good,  some  of  evil  sub- 
stance; and  yet  God  in  that  unapocryphal  vision,  said 
without  exception,  ^Rise,  Peter,  kill  and  eat,'  leaving  the 
choice  to  man's  discretion.  Wholesome  meats  to  a  vitiated 
stomach  differ  little  or  nothing  from  unwholesome;  and 
best  books  to  a  naughty  mind  are  not  unapplicable  to 
occasions  of  evil.  Bad  meats  vAW  scarce  breed  good 
nourishment  in  the  healthiest  concoction;  but  herein  the 


398  BLASPHEMY 

difference  is  of  bad  hooks,  that  they  to  a  discreet  and  judi- 
cious reader  serve  in  many  respects  to  discover,  to  con- 
fute, to  forewarn,  and  to  ILLUSTRATE.*  *  *  ^All-in- 
ions,  yea,  errors,  known,  read  and  collated,  are  of  main 
service  and  assistance  toward  the  speedy  attainment  of 
what  is  truest.  *  ♦  ♦  For  those  actions,  which  enter  into 
a  man  rather  than  issue  out  of  him,  and  therefore  defile 
not,  God  uses  not  to  captivate  under  a  perpetual  child- 
hood of  prescription,  but  trusts  him  with  the  gift  of  reason 
to  be  his  own  chooser^^*  * 

"I  cannot  praise  a  fugitive  and  cloistered  virtue,  un- 
exercised and  unbreathed,  that  never  sallies  out  and  sees 
her  adversary,  but  slinks  out  of  the  race,  where  that  im- 
mortal garland  is  to  be  run  for,  not  without  dust  and  heat. 
Assuredly  we  bring  not  innocence  into  the  world,  we  bring 
impurity  much  rather;  that  which  purifies  us  is  trial,  and 
trial  is  by  what  is  contrary.  That  virtue  therefore  which 
is  hut  a  youngling  in  the  contemplation  of  evil,  and  knows 
not  the  utmost  that  vice  promises  to  her  followers,  and  re- 
jects it,  is  hut  a  hlank  virtue,  not  a  pure;  her  whiteness  is 
hut  an  excremental  whiteness,  ♦  ♦  ♦ 

"Since,  therefore,  the  knowledge  and  survey  of  vice  is 
in  this  world  so  necessary  to  the  constituting  of  human 
virtue,  and  the  scanning  of  error  to  the  confirmation  of 
truth,  how  can  we  more  safely,  and  with  less  danger,  scout 
into  the  regions  of  sin  and  falsity,  than  by  reading  all 
manner  of  tractates,  and  hearing  all  manner  of  reason? 
*  *  *  Truth  and  understanding  are  not  such  wares  as  ta 
be  monopolized  and  traded  in  by  tickets  and  statutes  and 
standards.  ♦  ♦  *  Give  me  the  liberty  to  know,  to  utter, 
and  to  argue  freely  according  to  conscience,  above  all 
[other]  liberties.  ♦  ♦  ♦ 

"Though  ye  take  from  a  covetous  man  all  his  treasure, 
he  has  yet  one  jewel  left;  ye  cannot  bereave  him  of  his 
covetousness.  Banish  all  objects  of  lust,  shut  up  all  youth 
into  the  severest  discipline  that  can  be  exercised  in  any 
hermitage,  ye  cannot  make  them  chaste  that  came  not 
thither  so."* 

•Grolier  edition,  1890,  pp.  38,  49,  50,  51,  52,  53,  56,  57,  58,  107.  163. 


OVERT     ACT     AND     ACTUAL     INJUllY  399 

Not  a  word  here  of  abolishing  previous  restraint  for  sub- 
sequent punishment.  Not  the  slightest  fear  of  evil  psycho- 
logic tendency! 

Jeremy  Taylor — 1647. 

Jeremy  Taylor  (1613-1667)  was  one  of  the  most  dis- 
tinguished men  of  his  stormy  time.  He  was  several  times 
in  jail  for  intellectual  offences,  and  was  "Chaplaine  in 
Ordinarie  to  His  Majestie"  Charles  I.  After  the  Restora- 
tion he  was  promoted  to  the  Episcopate.  "Among  the  ranks 
of  the  deprived  clergymen  there  was  no  more  illustrious 
name."  His  "Discourse  on  Liberty  of  Prophesying"  is 
his  best  known  work.  It  displeased  Charles  I,  and  it  is 
said  that  Taylor  had  as  many  copies  as  possible  bought  up 
and  destroyed.*^ 

For  us  it  is  enough  to  know  that  he  drew  the  same  line 
between  liberty  and  its  opposite  that  we  have  found  in 
others.  "The  mere  doctrines  and  opinions  of  men  are 
things  spiritual,"  says  he,  "and  therefore  not  Cogniscible 
by  a  temporall  Authority;  and  the  Ecclesiastical  Author- 
ity, which  is  to  take  Cognisance  is  it  selfe  so  Spirituall  that 
it  cannot  inflict  any  punishment  corporall.  And  it  is  not 
enough  to  say  that  when  the  Magistrate  restraines  the 
preaching  such  opinions,  if  any  man  preaches  them  he  may 
be  punished  (and  then  it  is  not  for  his  opinion,  but  his 
disobedience  that  he  is  punished)  for  the  temporall  power 
ought  not  to  restraine  Prophesyings,  when  the  public  i>eace 
and  interest  is  not  certainly  concerned."^ 

Edward  Bagshaw — 1660. 
Edward  Bagshaw  the  younger  (1629-1671)  was  the  son 
of  a  distinguished  royalist,  politician  and  author.  He 
was  eratic,  and  well  educated  at  Oxford  and  Cambridge. 
In  1659  he  was  ordained  by  the  eminent  Bishop  Brownrigg. 
While  vicar  of  Ambrosden  he  elected  to  be  one  of  2000 
clergymen  to  be  ejected  in  1662.  Having  criticised  the 
king,  government,  church  and  state  he  was  imprisoned  dur- 
ing^ 1663-1664.  "He  exceeded  most  if  not  all  of  them 
[nonconformists]  in  natural  and  acquired  parts."    Soon  he 

'Dictionary  of  national  biography,  v.  55,  pp.  422-429. 
"Discourses  on  the  liberty  of  prophesying,  p.  255,  ed.  of  1647. 


400  BLASPHEMY 


again  became  "involved  in  'eonventicling'  and  the  inevit- 
able ^sedition/  "  and  once  more  imprisoned.* 

"Nor  is  there  any  Hope,  that  the  world  shonld  be  freed 
from  cruelty,  disguised  under  the  name  of  zeal,  till  it 
please  God  to  inform  all  Magistrates,  how  far  their  Com- 
mission reaches,  that  their  Province  is  only  over  the  Bodjf, 
to  repress  and  correct  those  morall  vices,  to  which  our 
•  outward  man  is  subject."^ 

In  a  later  pamphlet  he  ^ys  this:  "A  Christian  Liberty 
consists  not  in  Freedom  of  Practice,  but  in  freedom  of 
judgment."  This  is  criticised  as  a  foundation  for  con- 
formity in  Non-essentials  and  he  concludes  thus : 

"Liberty  of  Judgment  without  Liberty  of  Practice  suit- 
able to  that  Judgment,  is  not  only  a  vain  and  ludicrous, 
but  a  burdensome  and  vexatious  thing,  and  especially  in 
the  service  of  Ood^  while  we  always  outwardly  do  that, 
which  inwardly  we  do  not  approve,  is  nothing  else  but 
direct  Hypocracie."^® 

The  Declaration  of  Brbda — 1660. 

Even  Royalty  once  gave  temporary  verbal  approval  to 
the  line  we  are  trying  to  draw  between  actual  and  con- 
structive disturbance  of  the  peace : 

'*His  present  majesty  [1683]  in  his  Declaration  from 
Breda,  April  4  [1660],  speaJis  thus:  "*We  do  declare  a 
liberty  to  tender  consciences,  and  that  no  man  shall  be 
disquieted,  or  called  into  question,  for  differences  in  opin- 
ion, which  do  not  disturb  the  peace  of  the  Kingdom.' 
Which  was  also  the  declared  sense  of  most  of  the  nobility 
and  gentry  at  that  time,  to  which  they  subficribed  their 
names."^^ 

From  October,  1660  to  November  1680,  this  Declaration 
of  Breda  was  nine  times  more  or  less  definitely  affirmed 
either  by  King  or  Parliament 

♦Dictionary  of  National  Biography,  v.  2,  p.  402-3. 

•  The  great  question  concerning  things  indifferent  in  religious  worship, 

by  Edward  Bagshaw.    Third  Edit.    Lond.     1660,  p.  16 
■•The  second  part  of  the  great  question  concerning  indifferent  things 

in  religious  worship  by  the  same  author  [Edward  Bagshaw]  Lond. 

1661,  pp.  13-14. 
"Pita  for  nonconformists',  pp.  117-119,  cd.  of  1800. 


OVERT  ACT  AND  ACTUAL  INJURY         401 

While,  of  course,  this  liberty  was  not  yet  extended  to 
all,  it  does  show  that  in  those  to  whom  it  applied,  liberty 
of  utterance  meant  anything  short  of  an  actual  breach  of 
the  peace.  Of  course,  Charles  II  forgot  the  Declaration 
of  Breda  when  expediency  demanded  and  power  made 
repudiation  possible.  So  too,  Courts  sometimes  explain 
away  the  free  speech  guarantees  when  the  constitution  in- 
terferes with  their  lust  for  power. 

John  Owen — 1667. 

"But  all  these  considerations  [for  toleration]  are 
quickly,  in  the  thoughts  of  some,  removed  out  of  the  way, 
by  pretences  that  the  indulgeance  and  liberty  desired, 
will  certainly  produce  all  sorts  of  evils  both  in  Religion 
itself,  and  in  the  Civil  state.  ♦  ♦  *  The  arguments  in  this 
ease  insisted  on,  consist  merely  in  conjectures,  jealousies 
and  suppositions  of  what  may  come  to  pass,  no  one  knows 
when,  or  where ;  it  is  easie  for  any  to  dilate  upon  them  at 
their  pleasure,  nor  is  it  i>ossibIe  for  any  to  give  satisfac- 
tion to  all  that  men  may  conjecture,  or  pretend  to  fear. 
*  *  *  It  is  suflSciently  evident  that  they  are  all  false  or 
mistaken  suppositions,  that  can  give  countenance  to  these 
pretences."  Then  this  author  goes  on  at  length  t'^  give 
his  reasons  for  this  assertion,  by  reference  to  historical 
facts. 

"But  it  is  yet  further  objected,  that  the  indulgeance  de- 
sired hath  an  inconsistency  with  public  peace  and  tran- 
quility, the  other  head  of  the  general  accusation  before 
mentioned.  Many  fears  and  suspicions  are  mustered  up, 
to  contribute  assistance  unto  this  objection  also.  For  we 
are  in  the  field  of  surmise  which  is  endless  and  bound- 


"We  find  it  indeed  still  pretended,  that  the  allowance 
of  meetings  for  the  worship  of  God,  however  ordered  and 
bounded,  will  be  a  means  to  procure  and  further  sedition 
in  the  Commonwealth,  and  to  advantage  men  in  the  pursuit 
of  designs  to  the  disturbance  of  the  Kingdom."^^ 

"A  peace-ofFering  in  an  apology  and  humble  plea  for  indulgeance  and 
liberty  of  conscience  [John  Owen,  D.D.]  London.  1667.  pp.  30, 
Jl,  32. 


402  BLASPHEMY 

Thus  Owen  denies  the  validity  of  all  of  those  fears  or 
deems  them  outweighed  by  resultant  good.  In  other 
words,  intellectual  liberty  is  demanded  in  spite  of  fears 
and  theories  about  the  imaginary  consequent  dangerous 
psychologic  tendencies  thereby  let  loose. 

John  Locke— 1667. 

John  Locke  (1632-1704),  Oxford  lecturer,  physician  and 
philosopher,  needs  no  introduction.  His  "Essay  Upon 
Toleration"  was  a  lengthy  treatise  written  in  1667.  A 
part  of  his  thesis  was  that  religious  liberty  consisted  in 
limiting  the  power  of  the  magistrate  to  functions  clearly 
necessary  for  the  preservation  of  the  peace.  So  far  then 
he  is  an  authority  on  the  meaning  of  intellectual  liberty, 
though  he  found  reasons  for  deviation  from  consistency 
when  his  anti-Catholic  feelings  were  involved.  He  wrote 
while  laws  requiring  licensing  were  still  in  force,  but 
nowhere  even  remotely  suggests  that  the  mere  abolition 
of  previous  restraint  is  the  essence  of  intellectual  liberty.  ^^ 

"It  [religion]  is  not  instituted  in  order  to  the  erecting 
an  external  pomp,  nor  to  the  obtaining  of  ecclesiastical 
domination,  nor  to  the  exercising  of  compulsive  force;  but 
to  the  regulating  of  men's  lives  according  to  the  rules  of 
virtue  and  piety.  *  ♦  ♦ 

"I  esteem  it  above  all  things  necessary  to  distinguish 
exactly  the  business  of  civil  government  from  that  of  reli- 
gion, and  to  settle  the  just  bounds  that  lie  between  the  one 
and  the  other.  *  *  *  Civil  interests  I  call  life,  liberty, 
health,  and  indolency  of  hodj/;  and  the  possession  of  out- 
ward things,  such  as  money,  lands,  houses,  furniture,  and 
the  like.  ♦  *  ♦  All  the  power  of  civil  government  relates 
only  to  men's  civil  interests,  is  confined  to  the  care  of  the 
things  of  this  world,  and  hath  nothing  to  do  with  the  world 
to  come.  ♦  ♦  ♦ 

"A  church  then  I  take  to  be  a  voluntary  society  of  men, 
joining  themselves  together  of  their  own  accord,  in  order 
to  the  public  worshipping  of  God,  in  such  a  manner  as  they 

"Quotations  and  references  given  in  text  are  from  the  edition  of 
1689,  pp.  2,  4,  11,  12,  19,  20,  26,  27,  28,  29,  30,  31,  37,  38,  42,  58,  70,  71, 
73,  74,  75,  77,  86,  87. 


OVERT  ACT  AND  ACTUAL  INJURY         403 

judge  acceptable  to  Him,  and  effectual  to  the  salvation  of 
their  souls.  *  ♦  ♦  No  man  by  nature  is  bound  unto  any 
particular  church  or  sect.  *  *  ♦  The  end  of  a  religious 
society  is  the  public  worship  of  God.  ♦  ♦  *  All  discipline 
ought  therefore  to  tend  to  that  end,  and  all  ecclesiastical 
laws  to  be  thereunto  confined.  Nothing  ought  nor  can  be 
transacted  in  this  society,  relating  to  the  possession  of 
civil  or  worldly  goods.  No  force  is  here  to  he  made  use 
of,  upon  any  occasion  whatsoever;  for  force  belongs  wholly 
to  the  civil  magistrate.  ♦  *  ♦  The  arms  by  which  the 
members  of  this  society  are  to  be  kept  within  their  duty 
are  exhortations,  admonitions,  and  advices.  If  by  these 
means  the  offenders  will  not  be  reclaimed,  [they]  should  be 
cast  out  and  separated  from  the  society.  This  is  the  last 
and  utmost  force  of  ecclesiastical  authority.  *  ♦  ♦  The 
person  so  condemned  ceases  to  be  a  part  of  that  church. 
Care  is  to  be  taken  that  the  sentence  of  excommunication, 
and  the  execution  thereof,  carry  with  it  no  rough  usage, 
of  word,  or  action,  whereby  the  ejected  person  may  any- 
ways be  damnified  in  body  or  estate.  ♦  ♦  ♦ 

^*No  private  person  has  any  right,  in  any  manner,  to 
prejudice  another  person  in  his  civil  enjoyments,  because 
he  is  of  another  church  or  religion.  ♦  ♦  *  if  any  man  err 
from  the  right  way,  it  is  his  own  misfortune,  no  injury  to 
thee.  ♦  *  * 

"When  they  [churches]  are  not  strengthened  with  the 
civil  power,  then  they  can  bear  most  patiently  and  un- 
movedly  the  contagion  of  idolatry,  superstition  and  heresy, 
in  their  neighborhood;  of  which,  in  other  occasions,  the 
interest  of  religion  makes  them  to  be  extremely  appre- 
hensive. ♦  *  ♦ 

"Nobody  ♦  ♦  ♦  neither  single  persons  nor  churches, 
may,  nor  even  commonwealths,  have  any  just  title  to  in- 
vade the  civil  rights  and  wordly  goods  of  each  other,  upon 
pretense  of  religion.  ♦  ♦  ♦  if  Christians  are  to  be  ad- 
monished that  they  abstain  from  all  manner  of  revenge, 
even  after  repeated  provocations  and  multiplied  injuries, 
how  much  more  ought  they  who  suffer  nothing,  who  have 
had  no  harm  done  them,  forbear  violence,  and  abstain 


404  BLASPHEMY 


from  all  maimer  of  ill-usage  toward  those  from  whom 
they  have  received  none?  ♦  ♦  ♦ 

"Whatsoever  may  be  doubtful  in  religion,  yet  this  at 
least  is  certain,  that  no  religion  which  I  believe  not  to  be 
true,  can  be  either  true  or  prol&table  unto  me.  ♦  ♦  ♦  Men 
cannot  be  forced  to  be  saved  whether  they  will  or  no.  And 
therefore,  when  all  is  done,  they  must  be  left  to  their  own 
consciences.  ♦  ♦  ♦ 

"As  the  magistrate  has  no  right  to  impose  by  his  laws 
the  use  of  any  rites  and  ceremonies  in  any  church,  so 
neither  has  he  any  power  to  forbid  the  use  of  such  rites 
and  ceremonies  as  are  already  received,  approved,  and 
practiced  by  any  church.  You  will  say,  by  this  rule, 
if  some  congregations  should  have  a  mind  ^o  sacrifice  in- 
fantSy  or,  as  the  primitive  Christians  were  falsely  accused, 
lustfully  pollute  themselves  in  promiscuous  uncleanness, 
or  practice  any  other  such  heinous  enormities,  is  the  magis- 
trate obliged  to  tolerate  them,  because  they  are  committed 
in  a  religious  assembly?  I  a/nswer,  no.  These  things  are 
not  lawful  in  the  ordinary  course  of  life,  nor  in  any  private 
house;  and  therefore,  neither  are  they  so  in  the  worship 
of  God,  or  in  any  religious  meeting.  But  indeed  if  any 
people  congregated  on  account  of  religion,  should  be  de- 
sirous to  sacrifice  a  calf,  I  deny  that  that  ought  to  be 
prohibited  by  a  law.  ♦  ♦  ♦  For  no  injury  is  thereby  done 
to  any  one,  no  prejudice  to  another  man's  goods.  And 
for  the  same  reason  he  may  kill  his  calf  also  in  a  religious 
meeting.  ♦  ♦  ♦  The  part  of  the  magistrate  is  only  to  take 
care  that  the  commonwealth  receive  no  prejudice,  and  that 
there  be  no  injury  done  to  any  man,  either  in  life  or 
estate.  ♦  ♦  ♦ 

"It  may  be  said,  what  if  a  church  be  idolatrous,  is  that 
also  to  be  tolerated  by  the  magistrate?  In  answer,  I 
ask,  what  power  can  be  given  to  the  magistrate  for  the 
suppression  of  an  idolatrous  church,  which  may  not,  in 
time  and  place,  be  made  use  of  to  the  ruin  of  an  orthodox 
one?  ♦  ♦  ♦  The  civil  power  can  either  change  everything 
in  religion,  according  to  the  prince's  pleasure,  or  it  can 
change  nothing.  If  it  be  once  permitted  to  introduce  any- 
thing into  religion,  by  the  means  of  laws  and  penalties, 


^  OVERT  ACT  AND  ACTUAL  INJURY         405 

there  can  be  no  bounds  put  to  it.  *  *  *  No  man  whatever 
ought  therefore,  to  be  deprived  of  his  terrestrial  enjoy- 
ments upon  account  of  his  religion.  HHot  even  Americans, 
[Indians]  y  subjected  unto  a  Christian^  prince  are  to  he 
punished,  either  in  body  or  goods,  for  not  embracing  oar 
faith  and  worship.  ♦  ♦  ♦ 

"But  idolatry,  may  come,  is  a  sin,  and  therefore  not  to 
be  tolerated.  If  they  said  it  were  therefore  to  be  avoided, 
the  inference  were  good.  But  it  doesi  not  follow  that 
because  it  is  a  sin  it  ought  therefore  to  be  punished  by  the 
magistrate.  The  reason  is  because  [it  is]  not  prejudicial 
to  other  men's  rights  nor  does  it  break  the  public  peace  of 
societies,  ♦  ♦  ♦  Nay,  even  the  sins  of  lying  and  prejury 
are  no  more  punishable  by  laws;  unless  in  certain  casee^ 
in  which  the  real  turpitude  of  the  thing  and  the  offense 
against  God  are  not  considered,  but  only  the  prejury  done 
unto  men's  neighbors,  and  to  the  commonwealth.  ♦  ♦  ♦ 

"The  magistrate  ought  not  to  forbid  the  preaching  or 
proffering  of  any  speculative  opinions  in  any  church  be- 
cause they  have  no  manner  of  relation  to  the  ^vil  rights 
of  the  subjects.  If  a  Roman  Catholic  believe  [in  tran- 
substantiation] ;  if  a  Jew  do  not  believe  the  New  Testa- 
ment. *  *  *  If  a  heathen  doubt  of  both  Testaments,  he 
is  not  therefore  to  be  punished  as  a  pernicious  citizen, 
•  *  *  I  readily  grant  that  these  opinions  are  false  and 
absurd.  But  the  business  of  laws  is  not  to  provide  for  the 
truth  of  opinions,  but  for  the  safety  and  security  of  the 
commonwealth,  and  of  every  particular  man's  goods  and 
person.  And  so  it  ought  to  be.  For  truth  certainly  would 
do  well  enough,  if  she  were  once  left  to  shift  for  herself." 

Almost  every  page  insists  that  the  limit  of  jurisdiction 
for  State  interference  is  to  be  made  at  the  line  of  actual 
and  material  injury. 

Thomas  Delaune — 1683. 

Thomas  Delaune  (d.  1685)  was  a  Baptist  laymen,  de- 
voted to  translations  and  other  literary  work.  In  re- 
sponse to  a  challenge  contained  in  a  book  by  Dr.  Benjamin 
Calamy,  "A  Scrupulous  Conscience,"  Delaune  wrote  his 
"Plea  for  the  Non-conformists."     This  book  resulted  in 


406  BLASPHEMY 

his  conviction  for  seditious  libel.  He  was  imprisoned  and 
his  book  publicly  burned.  This  book  "was  for  many  years 
a  standard  Baptist  apology,  and  was  printed  seven 
times  between  1683  and  1706,  when  DeFoe  wrote  his 
preface  for  it."  An  American  edition  was  published  at 
"Ballston,  Saratoga  County,"  in  1800.  Its  circulation  in 
America  makes  it  a  more  immediate  factor  in  the  inter- 
pretation of  our  constitutional  guarantees  of  intellectual 
freedom. 

Delaune  draws  the  line  where  it  had  been  drawn  by  all 
those  who  wished  to  substitute  mental  liberty  for  mere 
tolerance.  He  says :  "All  I  desire  is  that  scrupulous  con- 
sciences who  trouble  not  the  peace  of  the  nation,  should 
be  dealt  withal,  [at  least]  as  weak  brethren,  according  to 
Rom.  XIV,  1  and  not  ruined  by  penalties  for  not  swallow- 
ing what  is  imposed  under  the  notion  of  decency  and  or- 
der."i4 

Hubert  Languet — 1579(1689). 

Hubert  Languet  (1518-1581)  was  born  in  France,  studied 
civil  law  in  Italy,  and  then  went  to  Melanchthon  at  Wit- 
temberg.  Thus  he  became  a  protestant.  He  spent  sev- 
eral years  in  travel  during  which  king  Gustavus  of  Sweden 
commissioned  him  to  entice  Frenchmen  skilled  in  the 
sciences  to  come  to  Sweden.  In  1559  he  accompanied  the 
prince  of  Orange  into  Italy.  Augustus,  elector  of  Saxony 
invited  him  to  the  court  in  1565,  and  nominated  him  his 
envoy  to  the  court  of  France.  He  held  other  important 
posts.  He  published  a  number  of  Latin  essays.  Among 
these  appears  to  have  been  "Vindicise  contra  tyranus," 
published  in  1579.  An  English  translation  was  issued  in 
1689,  from  which  the  following  is  quoted.  ^^ 

"Those  which  confess  that  they  hold  their  Soul  and  lives 
of  God,  as  they  ought  to  acknowledge,  they  have  then  no 
right  to  impose  any  tribute  upon  Souls.  The  King  takes 
tribute  and  custom  of  the  Body,  and  of  such  things  as  are 
acquired  or  gained  by  the  industry  and  Travel  of  the  Body, 

"Plea  for  non-conformists,  p.  189.    See  also:  Dictionary  of  national 

biography,  v.  4,  p.  315. 
"Rose,    Rev.    Hugh    James.     New   general   biographical    dictionary, 

Lond.  1853,  v.  9,  p.  190. 


OVERT  ACT  AND  ACTUAL  INJURY         407 

God  doth  principally  exact  his  right  from  the  Soul,  which 
also  in  part  executes  her  functions  by  the  Body.  ♦  ♦  ♦ 
The  Princes  exceed  their  bounds  not  contenting  themselves 
with  that  Authority  which  the  Almighty,  and  all  good 
God  hath  given  them,  but  seek  to  usurp  that  sovereignty, 
which  he  hath  reserved  to  himself  over  all  men,  being  not 
content  to  command  the  Bodies,  and  goods  of  their  Sub- 
jects at  their  pleasure,  but  assume  licence  to  themselves  to 
inforce  the  Consciences,  which  appertains  chiefly  to  Jesus 
Christ,  holding  the  earth  not  great  enough  for  their 
ambition,  they  will  climb  and  conquer  Heaven  itself.  ♦  ♦  * 
//  their  assaults  he  verbal,  their  defence  must  he  likewise 
verhal,  if  the  Sword  be  drawn  against  them,  they  may 
also  take  Arms,  and  fight  either  with  tongue  or  hand,  as 
occasion  is."^* 

[Edward?]   Hitchin — 1710  (?),  and  Joshua  Toulmin. 

The  following  data  was  not  examined  at  its  original 
source  for  the  want  of  time.  Joshua  Toulmin  (1740-1815) 
who  is  credited  with  endorsing  the  sentiment  as  a  dis- 
senter, historian  and  biographer,  published  49  separate 
items  not  including  magazine  articles  or  posthumous  vol- 
umes. His  sentiments  may  be  gathered  from  the  fact  that 
Thomas  Paine  was  burnt  in  efl&gy  before  his  house.  In 
1794,  on  the  recommendation  of  Priestly  he  received  a 
degree  of  D.  D.  from  Harvard.  This  was  partly  in  recog- 
nition of  his  services  in  editing  Neal's,  History  of  Puri- 
tans.^'' The  Hitchin  referred  to  hereafter  is  assumed  to 
be  the  author  of  Infant  Baptism,  who  later  became  a 
Unitarian. 

"Mr.  [Edward?]  Hitchins  hath  said:  'I  would  not  have 
a  Socinian  persecuted  for  denying  the  Deity  and  Atone- 
ment of  Christ  any  more  than  I  would  a  Jew  for  blasphem- 
ing my  Messiah,  or  denying  that  the  true  Messiah  is  yet 
to  come;  nor  would  I  dare  to  use  one  Mean  to  prevent 

"Vindiciae  contra  tyrannos:  A  defence  of  liberty  against  tyrants, 
or  of  the  lawful  power  of  the  prince  over  the  people,  and  of  the 
people  over  the  prince.  Being  a  treatise  written  in  Latin  and  French 
by  Junius  Brutus,  and  translated  out  of  both  into  English.  *  *  * 
London,  1689,  pp.  2,  14,  34. 

"Dictionary  of  national  biography  v.  57,  p.  82. 


408  BLASPHEMY 


their  obtaining  Liberty  to  worship  their  own  God  in  their 
own  way/  "  This  declaration  is  quoted  with  approval  in 
his  "Genuine  Protestanism,"^^  and  again  approved  by 
Joshua  Toulmin.^* 

It  will  be  obsei^ved  that  there  is  no  qualification  to  the 
effect  that  denial  of  essentials  will  be  permitted  if  done 
in  proper  literary  style  and  in  ladylike  manner.  Neither 
of  these  eminent  dissenters  nor  any  single  person  who 
favored  the  free  speech  clauses  of  our  American  Consti- 
tutions ever  dreamed  of  demanding  intellectual  liberty 
only  according  to  literary  style  or  education.  They  de- 
manded it  as  a  human  right,  which  implies  that  every  man 
might  express  himself  according  to  his  own  accustomed 
mode  of  speech,  dependent  upon  temperament  and  educa- 
tion. Neither  did  any  one  of  these  libertarians  ever  utter 
the  falsehood  that  liberty  of  the  press  consists  only  in  the 
absence  of  previous  restraints.  That  was  the  definition 
of  English  Tories  such  as  Mansfield,  Kenyon,  Ellenborough 
and  Blackstone. 

Kev.  John  Hoadlby — 1718. 

Archbishop  John  Hoadley  (1678-1746)  a  very  celebrated 
man  of  his  time,  although  an  orthodox  clergyman  yet 
seems  to  have  taken  substantially  the  same  view  of  reli- 
gious freedom  as  the  dissenters.  I  find  this  expressed  in 
"A  Sermon  Preached  before  the  Honorable  House  of  Com- 
mons."    I  quote  from  the  second  edition. 

"There  is  nothing,  I  think,  plainer  in  the  Rules  of  Civil 
Society  than  that  no  Man  is  to  be  abridged  of  his  rights 
in  it,  but  for  those  things  which  immediately  effect  its 
security.  *  *  *  So  that  to  compel  Men  to  this  outward 
conformity  either  by  using  them  as  Schismatics  from  the 
body  of  Christ,  or  as  unfit  and  dangerous  Members  of  the 
Civil  Society,  is  not  just  either,  to  Politics  or 
Chrlstianity."2o 

"Page  45. 

"Two  Letters  on  the  Application  to  Parliament,  by  the  Protestant 

Dissenting  Ministers,  pp.  82-83. 
"A  sermon  preached  before  the  honorable  house  of  commons,  January 

30th,  1717,  second  edition  1718,  pp.  12,  13.    See  also:  Dictionary  of 

national  biography,  v.  27,  p.  21. 


OVERT  ACT  AND  ACTUAL  INJURY         409 

By  the  word  "immediately"  in  the  phrase  "immediately 
effect  its  security"  I  take  it  he  means  to  negative  the  in- 
direct problematic  injury  achieved  through  an  intermediate 
person  who  might  be  induced  to  a  breach  of  the  peace.  Thia 
ie  borne  out  by  his  consenting,  as  a  primate,  to  the  aboli- 
tion of  restrictions  on  Roman  Catholics,  whose  doctrines 
in  his  time  were  deemed  to  be  of  very  dangerous  tendency. 

In  another  place  Bishop  Hoadley  makes  still  more  clear 
his  adherence  to  the  distinction  between  jurisdiction  in 
civil  affairs  and  in  psychological  or  spiritual  affairs.  His 
words  are  these:  "In  civil  affairs  they  [dissenters]  can 
give  up  the  exercise  of  their  rights  by  chusing,  apx>ointing 
or  consenting  to  an  arbitrator,  judge  or  governor,  finally 
to  determine  their  civil  controversies  between  man  and 
man,  but  in  the  case  of  religion,  supposing  them  once 
vested  with  the  right  before  mentioned,  it  is  not  in  their 
power  to  give  it  up  because  resulting  from  the  nature  of 
true  religion,  which  requires  choice  and  will,  in  every 
particular  man^s  own  conduct ;  no  one  can  give  it  up  with- 
out destroying  the  foundation  of  all  that  can  be  called 
religion  in  man.  But  if  every  private  Christian  has  not 
this  right  in  him,  by  what  method  came  the  superiors  to 
have  it?  *  *  *  I  shall  leave  to  others  the  glory  of  putting 
the  ecclesiastical  constitution  of  this  realm  and  the  religion 
delivered  by  Christ  for  synonymous  terms."^^ 

John  Wickliffe — 1729. 
"I  too  have  observed  with  Sorrow  and  Concern  the 
many  books  and  pamphlets  that  have  been  published 
against  our  Holy  Religion,  that  is,  I  am  sorry  that  any 
Men  should  be  so  much  mistaken  as  to  conceive  of  that 
Religion  as  false,  which  to  me  appears  to  be  most  true. 
And  I  must  agree  with  these  Gentlemen,  that  all  Books 
and  Pamphlets  published  against  our  most  Holy  Religion, 
have  a  direct  Tendency  to  propagate  Infidelity :  Methinks 
the  Consequence  is  pretty  natural,  if  they  mean  by  In- 
fidelity, as  I  suppose  they  do,  a  disbelief  of  the  Christian 
Religion.     But  I  can  by  no  means  agree  with  them  when 

"Here  requoted  from  p.  112,  Appendix  of  two  letters  addressed  to 
the  Right  Rev.  prelates. 


410  BLASPHEMY 


they  add,  and  consequently  to  the  Corruption  of  all  Morals : 
And  for  this  plain  reason,  because,  tho'  a  Man  should  dis- 
believe the  Christian  Religion,  it  would  not  follow 
that  he  would  commit  Murder,  or  have  any  desire  to  do 
it.  *  *  * 

"Therefore,  if  by  the  Blasphemy  and  Profaneness  in  this 
Paragraph,  these  Gentlemen  mean  the  Infidelity  before- 
mentioned,  or  Disbelief  of  the  Christian  Religion,  and  the 
Publication  of  such  Disbelief;  and  if  by  Suppression  in 
this  Paragraph,  they  mean  a  Suppression  by  force;  then 
I  do  say,  that  the  Suppression  of  Blasphemy  and  Pro- 
faneness (meaning  by  Suppression  and  Profaneness  as 
aforesaid)  is  so  far  from  being  of  Service  to  his  Majesty, 
and  the  Protestant  Succession,  that  I  think  nothing  can 
be  more  contradictory  to  the  Design  of  it. 

"The  Protestant  Succession  was  established  among  us 
by  the  good  Providence  of  God,  for  the  Protection  of  our 
Religions  and  Civil  Rights  and  Liberties.  Religious  Lib- 
erty, or  Liberty  with  regard  to  Religion,  seems  to  consist 
in  nothing  else  but  thinking  about  Religion  in  xchat  way 
we  judge  proper,  and  the  openly  avowing  and  expressing 
such  Thoughts,  and  worshipping  God,  as  we  judge  proper. 
And  it  is  a  Right  which  every  Man  ought  to  enjoy,  (and 
which  therefore  the  Protestant  Succes^^on  was  design'd 
to  protect)  to  exercise  this  Liberty  in  all  Instances  not 
hurtful  to  anybody  else.  Civil  Liberty  is  a  Liberty  to  do 
what  we  judge  proper :  This  therefore  is  likewise  our  Right, 
with  the  same  Restriction  as  before,  thai  we  don^t  hurt  any 
body  else  by  it.  *  *  * 

"How  absurd  then  is  it,  thus  to  blend  the  Interests  of 
Religion  and  the  State,  i.  e.  the  Interests  of  this  World, 
and  the  next,  which  have  really  nothing  to  do  with  one 
another,  (farther  than  as  I  shall  observe  hereafter)  tne 
one  resting  in  the  Minds  and  Consciences  of  Men,  the 
other  in  the  outward  Peace  and  Af3uence  of  the  Publick. 

"Indeed,  if  Infidels  attack  your  Religion  by  force,  yon 
must  defend  it  by  force.  Presentments,  Dragoons,  or 
anything  that  comes  next  to  hand:  But  so  long  as  they 
keep  themselves  to  Writing,  'tis  quite  inconsistent  with 


OVERT    ACT    AND    ACTUAL    INJURY  411 

the  Spirit  of  the  Gospel  to  use  force,  tho'  in  the  Defence 
of  it.  *  *  • 

"We  chnse  such  a  Religion,  because  we  tMnk  it  will 
carry  us  to  Heaven ;  and  such  a  Form  of  Government,  be- 
cause we  think  that  most  conductive  to  the  Safety  and  Hap- 
piness of  the  Publick:  Which  are  very  different  Consid- 
erations, and  quite  independent  of  each  other.  ♦  ♦  ♦ 

"If  Infidels  endeavour  to  propagate  their  Infidelity  by 
force,  those  Endeavours  must,  to  be  sure,  affect  the  State; 
and  in  such  case,  I  should  thank  a  Grand-Jury  who  would 
take  care,  ne  quid  detrimenti  Respublica  capiat.  But  so 
long  ajs  Infidels  keep  themselves  to  Writing  only,  and 
Argument,  if  the  State  suffers  anything  in  the  Dispute, 
it  must  be  by  the  Folly  and  Wickedness  of  those  who  make 
the  State  a  Party,  by  using  force.  Thep  who  first  use 
force  on  either  side  the  Question,  are  the  Enemies  of  the 
State;  and  as  such  the  State  ought  to  have  a  watchful 
Eye  over  them/'^^     \ 

Charles  Montesquieu — 1748. 
Charles  de  Secondat  Montesquieu  (1689-1775)  is  char- 
acterized by  Bourke  as  "a  genius,  not  bom  in  every 
country  or  in  every  time,  with  a  Herculean  robustness  of 
mind."  Although  in  a  benighted  century  he  was  the 
President  of  the  Parliament  of  Bordeaux  and  a  baron,  he 
did  much  for  progress  toward  democracy.  He  "com- 
manded the  future  from  his  study  more  than  Napoleon  from 
his  throne."  His  book,  "The  Spirit  of  the  Laws"  was  pub- 
lished in  1748,  and,  according  to  the  opinion  of  Mr.  Jus- 
tice Holmes,  "probably  has  done  as  much  to  remodel  the 
world  as  any  product  of  the  eighteenth  century."  The 
references  to  this  book,  all  show,  as  well  as  the  Constitu- 
tion itself,  how  the  thought  provoked  by  the  book  helped 
to  shape  our  institutions.  This  fact  makes  his  views  upon 
the  relations  of  religion  and  the  penal  code  a  matter  of 
direct  bearing  upon  the  historical  interpretation  of  free- 
dom of  speech  and  religious  liberty. 

"Remarks  upon  two  late  presentments  of  the  grand-jury  of  the 
county  of  Middlesex.  *  *  *  by  John  Wickliflfe,  London,  1729.  pp. 
8,  9,  10,  17,  20,  21. 


412  BLASPHEMY 


r 


On  the  subject  of  religion,  he  emphasizes  the  essential 
difference  between  human  and  divine  laws,  and  argues 
reservedly  for  general  toleration  of  all  religion,  and  con- 
cludes : 

"When  the  legislator  had  believed  it  a  duty  to  permit  the 
exercise  of  many  religions,  it  is  necessary  that  he  should 
enforce  also  a  toleration  among  these  religions  themselves. 
*  *  *  Penal  laws  ought  to  he  avoided  in  respect  to  reli- 
gion'' 

In  the  matter  of  verbal  treason,  Montesquieu  seems  very 
exact  in  his  statements  and  comprehensive  in  his  thought. 
In  the  English  law  religious  offences  were  at  times  treated 
as  a  special  form  of  treason,  and  indictable  under  the 
latter  designation.  Only  a  few  lines  will  need  quoting 
from  Montesquieu  on  this  aspect.     He  says : 

"Nothing  renders  the  crime  of  high  treason  more  arbi- 

rary   than  declaring   people   guilty   of  it   for   indiscreet 

speeches.  *  *  *  Words  do  not  constitute  an  overt  act; 

they  remain  only  an  idea.      When  considered  by  them- 

S  selves,  they  have  generally  no  determinate  signification, 

/for  this  depends  on  the  tone  in  which  they  are  uttered. 

\  ♦  ♦  ♦  Since  there  can  be  nothing  so  equivocal  and  am- 

1  biguous  as  all  this,  how  is  it  possible  to  convert  it  into  a 

:■  crime  of  high  treason?     Wherever  this  law  is  established, 

there  is  an  end  not  only  of  liberty,  but  even  of  its  very 

i  shadow.  ♦  ♦  ♦ 

r  "Overt  acts  do  not  happen  every  day;  they  are  exposed 
to  the  naked  eye  of  the  public,  and  a  false  charge  with 
\  regard  to  matters  of  fact  may  be  easily  detected.  Words 
carried  into  action  assume  the  nature  of  that  action.  Thus 
a  man  who  goes  into  a  public  market-place  to  incite  the 
\  subject  to  revolt  incurs  the  guilt  of  high  treason,  deca/use 
the  words  are  joined  to  the  action,  and  partake  of  its 
nature.  It  is  not  the  words  that  are  punished,  hut  an 
action  in  which  words  are  employed.  They  do  not  hecome 
criminal  hut  when  they  are  annexed  to  a  criminal  action; 
everything  is  confounded  if  words  are  construed  into 
capital  crime;  instead  of  considering  them  only  as  a  mark 
[evidence?]  of  that  crime.^^^^ 

"The  spirit  of  the  laws,  v.  1,  p.  232,  233,  Aldine  ed. 


OVERT  ACT  AND  ACTUAL  INJURY         413 

Rev.  John  Jones,  et  al — 1749. 

The  Rev.  John  Jones,  (1693-1752)  appears  to  have  been 
an  exceedingly  modest  editor,  author,  and  clergyman.  His 
writings  were  mostly  published  anonymously  or  after  his 
death.  In  1749  he  published  a  collection  of  short  ex- 
tracts from  the  writings  of  Anglican  divines  advocating 
the  necessity  and  expediency  of  a  trenchant  revision  of 
the  liturgy.      The  following  is  quoted  from  that  book. 

"  *The  Church  of  Christ,  as  a  society  separate  from  the 
State,  hath  (what  all  societies  must  have)  proper  bands 
of  union;  upon  a  breach  of  which,  she  may  declare  any 
person  breaking  them,  as  no  longer  in  her  fellowship. 
Were  the  civil  Magistrate  in  this  case  neuter,  and  did  he 
no  otherwise  interpose,  than  by  fiis  protection  Oif  the 
Church  in  her  regular  exercise  of  this  authority ;  no  griev- 
ance, I  should  think,  could  be  here  complained  of.  And 
the  supposed  Neutrality  of  the  Magistrate,  as  to  civil 
penalties,  would  then  leave  the  persons  excluded  from  this 
society,  easy  and  secure  from  such  penalties.'  Dr.  Mar- 
shall's Letter  to  Dr.  Rogers,  annexed  to  Roger's  Vindicat, 
p.  310-311.  This  declaration  of  Dr.  Marshall's  (wherein 
he  says  he  agrees  with  his  friend  Dr.  Rogers)  carries  in 
it  a  great  and  momentous  truth,  and  that  of  greater  con- 
sequence to  the  real  interest  of  Christianity,  than  the 
bulk  of  mankind  seems  to  be  aware.  To  which  we  shall 
only  add,  for  the  present,  those  just  remarks  of  the  learned 
Mr.  John  Needham,  in  his  Visitation-sermon  before  the 
Clergy  at  Warnford,  1710.  *We  no  where  find  our  blessed 
Savior  to  have  given  any  other  authority  to  his  Church, 
for  punishing  offenders,  or  for  reclaiming  the  erroneous, 
but  what  is  expressed  by  exhortation,  reproof,  or  exclu- 
sion from  the  communion  and  privileges  of  the  faithful. 
Which  is  a  demonstration  to  me,  that  no  other  were  in- 
tended by  Him,  or  are  lawful  to  us.  He  would  have 
religion,  which  is  a  reasonable  service,  served  only  in 
humane  and  reasonable  ways,  such  as  at  once  may  make 
the  world  believe  and  love  his  institutions.  And  if,  in 
some  extraordinary  cases,  the  Apostles,  endowed  with 
extraordinary  powers,  thought  fit  to  inflict  extraordinaiy 
punishments  on  men's  bodies,  I  think  this  no  sufficient 


414  BLASPHEMY      • 

warrant  and  authority  to  us,  till  the  same  powers  and 
emergencies  return  again  into  the  Church.'  Our  Be- 
formers  were  of  the  same  judgment,  as  appears  by  many 
instances  in  history,  and  in  their  writings :  See  Particu- 
larly the  Institution  of  a  Christian  Man,  tit.  The  sacra" 
ment  of  orders,  p.  46a.  See  also,  Bishop  Stillingfleet's 
discourse  concerning  the  power  of  excommunication  in  a 
Christian  Church ;  and  his  Life,  8vo.  1710,  p.  15,  16,  refer- 
ring to  that  discourse."24 

Anthony  Ellys — 1763. 

Anthony  Ellys  (1690-1761)  was  the  Bishop  of  St.  Davids. 
He  was  a  distinguished  member  of  the  orthodox  church, 
and  had  written  a  book  in  defense  of  the  sacramental  tests 
as  a  protection  for  the  established  church.  Yet  he  was 
perhaps  rather  liberal-minded  for  a  Bishop.  After  his 
death,  his  friends,  in  1763,  published  his  manuscript 
"Tracts  on  Liberty  Spiritual  and  Temporal  of  the  Protest- 
ants of  England."  The  defense  of  sacramental  tests  was 
included.  A  new  edition  was  published  in  1767,  from 
which  these  quotations  are  made.  Much  of  the  book  is 
directed  against  Popery,  and  parts  evince  considerable 
erudition  and  astute  reasoning.  In  spite  of  his  aversion 
to  complete  mental  freedom,  he  recognized  the  nature  of 
the  issue  between  himself  and  the  friends  of  unabridged 
intellectual  liberty,  and,  after  stating  how  far,  in  his 
opinion,  penalties  may  be  imposed  for  erroneous  opinion, 
he  states  also  the  opinion  of  his  more  liberal  opponents 
thus: 

"But  here  most  of  the  friends  of  liberty  stop:  They  do 
not  allow  that  the  same  course  may  be  justly  taken  in 
the  case  of  errors  which,  without  being  in  themselves,  or 
by  plain  consequence,  anywui/  hurtful  to  the  civil  state, 
are  only  repugnant  to  sacred  truth  made  known  by  reason 
or  by  divine  revelation.  They  think  that  by  persons  by 
whom  errors  of  this  latter  kind  only  are  held,  no  force 


*•  Free  and  candid  disquisitions  relating  to  the  Church  of  England  and 
the  means  of  advancing  religion  therein  addressed  to  the  govern- 
ing powers  in  church  and  state  and  more  immediately  directed  to 
the  house  of  convocation  [by  Rev.  John  Jones]  London,  1749. 
Footnote,  p.  177.  See  also:  Dictionary  of  national  biography,  vol. 
30,  p.  127. 


OVERT  ACT  AND  ACTUAL  INJURY         415 

or  civil  punishment  can,  merely  on  that  account,  be  justly 
employed,  either  in  the  way  of  punishment,  or  even  of  re- 
straint of  them  from  public  worship,  with  an  intention  to 
make  them  embrace  the  truth  in  religion. 

"Not  but  these  friends  of  liberty  admit,  in  the  first 
place,  that  divers  errors  of  such  a  nature  may  be  very 
blameable  in  the  sight  of  God,  when  they  have  proceeded 
from  a  great  corruption  in  the  understanding,  and  that 
corruption  derived  from  their  ill-affections  and  passions 
not  resisted  and  governed  as  they  ought  to  have  been.  If 
any  particular  writer  in  our  country  has  too  crudely  and 
generally  asserted  the  innocency  of  error,  this  never  hath 
been  the  doctrine  of  Protestants  in  general." 

Here  then  is  a  frank  confession  of  the  nature  of  the 
issue  being  urged  by  the  friends  of  unabridged  intellectual 
liberty,  as  their  contention  is  seen  by  one  who  opposed 
their  claims.  There  can  then  be  little  excuse  for  our  courts 
failing  to  understand  what  the  friends  of  liberty  meant 
by  that  which  they  had  written  into  our  constitutions.^^ 

"Letters  CoNCiatNiNG  Libels^^ — 1764. 

As  further  exhibiting  the  contentions  of  friends  of  lib- 
erty of  the  press,  to  be  an  insistence  upon  the  distinction 
between  an  actual  and  a  constructive  breach  of  the  peace, 
there  wdll  now  be  quoted  an  anonymous  phamphlet  en- 
titled :  "A  Letter  Concerning  Libels,  Warrants,  etc."  The 
quotations  are  from  the  second  edition,  London,  1764. 

"Members  [of  Parliament]  are  clearly  entitled  to  Priv- 
ilege in  all  misdemeanours,  for  which  sureties  of  the  peace 
cannot  be  demanded.  But  sureties  of  the  peace  cannot 
be  demanded  but  in  actual  breaches  of  the  peace.  The 
writings  of  anything  quietly  in  one's  study,  and  publishing 
it  by  the  press,  can  certainly  be  no  actual  breach  of  the 
peace.  Therefore  a  member  who  is  only  charged  with 
this,  cannot  thereby  forfeit  his  Privilege. 

"I  thought  that  no  common  man  would  allow  any  writ- 
ing or  publishing,  especially  where  extremely  clandestine, 

"Tracts  on  liberty  spiritual  and  temporal  of  the  protestants  of  Eng- 
land.   1767,  pp.  55-56. 


416  BLASPHEMY 


to  be  any  breach  of  the  peace  at  all;  and  that  none  but 
lawyers,  on  account  of  the  evil  tendency  sometimes  of 
such  writings,  had  first  got  them,  hy  construction,  to  be 
deemed  so.  I  had  no  idea  that  it  was  possible  for  any 
lawyer,  however  subtle  and  metaphysical,  to  proceed  so 
far  as  to  decide  mere  authorship,  and  publication  by  the 
press,  to  be  an  actual  breach  of  the  peace,  as  this  last, 
seems  to  express,  ex  vi  termini,  some  positive  bodily  in- 
jury, or  some  immediate  dread  thereof  at  least;  and  that, 
whatever  a  challenge,  in  writing,  to  any  particular  might 
be,  a  general  libel  upon  public  measures  could  never  be  con- 
strued to  be  so.  And  I  knew  it  was  not  required  of  any 
one  in  matters  of  law,  to  come  up  to  the  faith  of  an  ortho- 
dox divine,  who,  in  incredible  points,  is  ready  to  say 
Credo  quia  impossibile  est.  (I  believe  it  because  it  is 
impossible).  ♦  ♦  ♦ 

"No  case  is  so  common  as  that  of  women  exhibiting 
articles  of  peace  against  their  husbands;  now  I  do  not  be- 
lieve that  if  any  wife  was  to  allege  as  a  foundation  for 
such  articles,  her  husband's  having  wrote  a  libel  against 
her ;  let  the  libel  be  ever  so  false,  scandalous  and  malicious ; 
that  Lord  Mansfield  would  make  the  husband  find  surities 
for  the  peace,  or  for  his  future  good  behaviour  on  that  ac- 
count." 

In  this  present  case  Mockus  was  sentenced  by  the  police 
court  to  furnish  such  a  bond  upon  the  most  absurd  theory 
that  his  alleged  blasphemy  made  such  a  bond  necessary. 
After  considerable  argument  making  clear  the  same  dis- 
tinction between  actual  and  constructive  injury,  by  refer- 
ence to  the  remedy,  as  in  personal  libel  where  an  action  will 
lie  for  trespass  on  the  case,  a  remedy  applicable  only  for 
a  wrong  without  force,  whereas  for  an  actual  breach  of  the 
peace  the  remedy  is  by  action  for  trespass,  vi  et  a/rmis,  our 
author  continues  thus : 

"I  never  heard  till  very  lately  that  Attorney  Generals, 
upon  the  caption  of  a  man  supposed  a  libeller,  could  insist 
upon  his  giving  securities  for  his  good  behaviour.  It  is  a 
doctrine  injurious  to  the  freedom  of  every  subject,  deroga- 
tory from  the  ola  constitution,  and  a  violent  attack,  if 


OVERT  ACT  AND  ACTUAL  INJURY         417 

not  an  absolute  breach  of  the  liberty  of  the  press.     It  is 
not  law  and  I  will  not  submit. to  it."^^ 

Egbert  Morris — 1770. 
Robert  Morris,  Barrister  at  Law,  and  Secretary  to  the 
supporters  of  the  Bill  of  Rights,  in  London,  1770,  pub- 
lished "A  Letter  to  Sir  Richard  Aston  Knt'.  one  of  the 
judges  of  his  Majesties  Court  of  King's  Bench,  and  later 
Chief  Justice  of  the  Common  Pleas  in  Ireland.''  This  was 
the  outgrowth  of  the  prosecution  for  seditious  libel,  of 
Woodfall  for  publishing  the  "Letters  of  Junius."  Morris 
also  makes  the  objection  to  determining  the  guilt  in  sedi- 
tious libel  according  to  psychologic  tendency.  He  says: 
"It  is  impossible  for  ley  gens  *  *  *  to  know  what  is  safe 
to  publish  and  it  is  equally  impossible  for  a  lawyer  to  give 
advice.  He  cannot  from  any  musty  reading  of  books 
know  the  effect,  which  a  publication  may  produce  in  the 
minds  of  men;  and  therefore  cannot  divine  whether  it  be 
a  libel.  I  should  doubt,  whether  a  panegyric  upon  Mr. 
Justice  Aston  might  not  be  deemed  so.  The  lawyers  can- 
not define  a  libel  without  reference  to  other  terms,  which 
are  uncertain'  till  determined  by  a  Jury.''^"^ 

Rev.  Pecilip  Furneaux — 1770. 
Observing  the  chronological  order  would  induce  us  to 
insert  quotations  from  Dr.  Furneaux's  most  valuable 
treatise  at  this  point.  So  much  has  already  been  quoted 
from  him  (pp.  105  to  112  herein),  that  more  space  will 
not  be  given.  A  re-reading  is  recommended.  On  page 
106  attention  was  called  to  the  similarity  of  views  and 
language  existing  between  Fourneaux,  and  Jefferson's, 
Virginia,  Resolution  on  Toleration.  Since  that  page  went 
to  the  printer  it  was  discovered  that  among  the  several 
editions  of  Furneaux's,  Letters  on  Toleration,  one  was 
published  in  Philadelphia  in  1773.  This  makes  his  views 
of  increasing  importance  in  the  interpretation  of  our  con- 

*A  letter  concerning  libels,  warrants,  etc.,  second  edition,  Lond. 
1764,  pp.  17-18-19. 

"A  letter  to  Sir  Richard  Aston  Knt.  One  of  the  judges  of  his  majes- 
ties court  of  King's  Bench,  and  later  Chief  Justice  of  the  Common 
Pleas  in  Ireland,  p.  55. 


418  BLASPHEMY 


stitutional  guarantees,  because  his  book  is  now  more  gene- 
tically related  to  that  public  sentiment  upon  which  those 
guarantees  came  into  being. 

Kev.  Andrew  Kippis — 1772. 

Andrew  Kippis  (1725-1795)  was  a  non-conformist  min- 
ister and  a  noted  biographer,  and  held  numerous  positions 
of  trust  and  honor  in  the  Presbyterian  Chprch  and  outside 
of  it.  His  principal  literary  work  is  the  "Biographia 
Britannica."  Besides  this,  he  wrote  a  number  of  books 
and  magazine  articles.*  In  1772  he  first  published  "A 
Vindication  of  the  Protestant  Dissenting  Ministers.''  A 
second  edition  was  published  in  1773,  from  which  the  fol- 
lowing quotations  are  selected  as  representative  of  num- 
erous similar  sentiments.  In  replying  to  the  suggestion 
"Preaching  is  an  overt  act  of  some  importance  to  the  state," 
he  says,  among  much  other  matter: 

"Upon  whatever  religious  principles  any  man  may  pre- 
tend to  act,  or  whatever  pleas  of  conscience  may  be  urged 
by  him,  if  he  hurts  his  neighbor  in  person  or  property, 
if  he  disturbs  his  fellow  creatures  in  the  exercise  of  their 
rights  and  privileges,  lie  ought  to  be  restrained  and 
punished.  This  is  the  precise  point  at  which  it  becomes 
the  duty  of  the  State  to  interfere,  and  if  the  State  should 
interfere  sooner,  and  extend  its  jurisdiction  to  opinions, 
under  the  pretext  of  their  eveil  tendency,  it  will  be  im- 
possible to  know  where  to  stop.  Speculations  and  fancies 
about  the  tendencies  of  opinions  may  be  carried  on  to  the 
entire  destruction  of  liberty,  and  the  vindication  of  every 
species  of  tyranny  and  persecution.  An  over-zealous 
Armenian  will  be  ready  to  contend  that  several  doctrines 
are  contained  even  in  the  Thirty  Nine  Articles  of  the 
Church  of  England,  which  are  calculated  to  have  a  bad 
effect  on  the  morals  and  happiness  of  mankind.  An  over- 
zealous  Calvinist  will  as  warmly  plead,  that  the  power 
ascribed  to  man  by  some  divines,  and  other  tenets  held  by 
them,  are  extremely  prejudicial  to  the  interests  of  holiness. 
*  *  *  Accusations  of  a  similar  nature  might  be  produced 
against  a  variety  of  religious  sentiments,  till,  at  length, 

♦See:  Dictionary  of  national  biography,  v.  31,  pp.  195-197. 


OVERT    ACT     AND    ACTUAL     INJURY  419 

not  liberty  only,  but  piety  and  charity,  would  be  lost  in 
the  contest."^^ 

Kippis  refers  to  Fumeaux  and  Fownes  for  further  jus- 
tification of  this  position. 

"Two  Letters/^  Anonymous — 1773. 

I  have  before  me  an  anonymous  pamphlet  issued  in  the 
interests  of  English  Dissenters.  It  is  entitled  "Two  Letters 
addressed  to  the  Eight  Rev.  Prelates."  Here  the  demand 
for  intellectual  freedom  is  thus  stated :  "If  the  profession 
of  Christianity  give  no  protection  to  the  civil  power,  let 
it  be  dispensed  with,  and  let  toleration  be  granted  without 
any  reserve  or  limitation  whatever,  according  to  the  rights 
of  mankind.  *  *  *  I  hope  if  they  solicit  parliament  any 
more,  it  will  be  for  an  absolute  and  unconditional  repeal 
of  religious  penalties.  ♦  ♦  ♦  Our  thoughts  and  principles 
are  supremely  independent  of  any  civil  power.  When  we 
injure  our  fellow  citizens  we  fall  under  its  cognizance; 
till  then  we  ought  to  range  free  and  unconfined  wherever 
truth  leads,  otherwise  every  persecution  in  the  world  may 
be  defended.  ♦  *  ♦  /  avn  never  safe  hut  whilst  his  au- 
thority is  confined  to  actual  offences  against  the  peace  of 
society.  This  distinction  is  plain,  obvious,  and  sufficient, 
and  will  forever  keep  religion  and  government  from  being 
confounded  together,  or  invading  each  other.  God  forbid 
I  should  contend  for  a  toleration  that  would  exclude  one 
honest  man  on  the  face  of  the  earth,  whatever  he  believes, 
and  I  will  venture  to  say,  however  this  latitude  may  startle 
some  ignorant  or  bigoted  minds,  the  more  it  is  considered, 
the  more  it  will  be  approved  till  the  reasonableness  of  it 
is  as  universally  admitted  as  the  clearest  axiom  in 
iiature."^® 

Rev.  Joseph  Fownes — 1773. 

This  author  (1750-1789)  was  one  of  the  more  distin- 
guished of  dissenting  ministers.  He  has  been  quoted  al- 
ready (pp.  113-116).     What  is  there  said  needs  to  be  re- 

"A  vindication  of  the  protestant  dissenting  ministers,  1773,  pp.  99- 

100. 
"Two  letters  addressed  to  the  Right  Rev.  prelates  who  a  second 

time  rejected  the  dissenters'  bill,  London,  1773,  pp.  24-26. 


420  BLASPHEMY 


read  here  for  its  clear  cut  statement  of  the  difference 
between  a  speculatively  ascertained  psychologic  tendency 
and  an  overt  act  of  physical  aggression. 

Here  I  take  occasion  to  correct  a  surmise  hereinbefore 
made,  that  Fownes  had  come  to  America.  The  correc- 
tion is  based  upon  a  biographical  introduction  to  the 
third  edition  of  Fownes'  "Inquiry,"  which  was  formerly 
overlooked.^^ 

Jeremy  Bentham — 1776. 

This  distinguished  author  also  drew  the  line  between 
free  speech  and  the  rightful  jurisdiction  of  government 
at  the  point  of  actual  physical  resistance  to  government  and 
so  repudiated  the  idea  that  a  mere  speculative  and  imagina- 
tive psychologic  tendency  could  properly  be  punished. 
His  words  have  already  been  quoted  on  page  113,  and  will 
not  be  repeated. 

EiCHARD  Price — 1777. 
Eichard  Price  (1723-1791)  was  a  non-conformist  minis- 
ter and  writer  on  moral,  political  and  economic  questions. 
One  of  his  books  that  probably  attracted  more  attention 
than  others  was  "Observations  of  Civil  Liberty  and  the 
Justice  and  Policy  of  the  War  with  America,"  1776.  In 
recognition  of  his  services  in  the  cause  of  liberty.  Dr. 
Price  was  presented  with  Freedom  of  the  City  of  London, 
and  it  is  said  that  the  encouragement  derived  from  this 
book  had  no  inconsiderable  share  in  determining  the 
Americans  to  declare  their  independence.  *  *  *  He  was 
the  intimate  of  Franklin.  *  *  *  In  the  winter  of  1776  he 
was  actually  invited  by  Congress  to  transfer  himself  to 
America.  *  *  *  In  1783  he  was  honored  by  being  created 
L.L.D.  by  Yale  College  at  the  same  time  with  George 
Washington.  *  *  *  In  1791  Price  became  an  original 
member  of  the  Unitarian  Society.^^ 

"An  enquiry  into  the  principles  of  toleration;  the  degree  in  which 
they  are  admitted  by  our  laws;  and  the  reasonableness  of  the  late 
application  made  by  the  dissenters  to  parliament  for  an  enlarge- 
ment of  their  religious  liberties.  By  Joseph  Fownes.  The  third 
edition.  To  which  is  prefixed  an  introductory  preface,  containing 
some  account  of  the  author.  By  Andrew  Kippis,  D.D.,  F.R.S.  &  S.A. 
Shrewsbury,  1790. 

"Dictionary  of  national  biography,  v.  46,  pp.  334-337. 


OVERT  ACT  AND  ACTUAL  INJURY         421 

Dr.  Price  wrote :  "Religious  liberty  likewise  is  a  power 
of  acting  as  we  like  in  religion,  or  of  professing  and  prac- 
tising that  mode  of  religious  worsMp  which  we  think  most 
acceptable  to  the  Deity.  ♦  ♦  ♦  AH  have  the  same  unalien- 
able right  to  this  liberty;  and  consequently,  no  'one  has 
a  right  to  such  a  use  of  it  as  shall  take  it  from  others. 
Within  this  limit,  or  as  far  as  he  does  not  encroach  on 
the  equal  liberty  of  others,  every  one  has  a  right  to  do  as 
he  pleases  in  religion.  That  the  right  to  religious  liberty 
goes  as  far  as  this  every  one  must  allow,  who  is  not  a 
friend  of  persecution;  and  that  it  cannot  go  further  is 
self-evident,  for  if  it  did  there  would  be  contradiction  in 
the  nature  of  things;  and  it  would  be  true,  that  everyone 
had  a  right  to  enjoy  what  every  one  had  a  right  to  de- 
stroy. If,  therefore,  the  religious  faith  of  any  person 
leads  him  to  hurt  another,  because  he  professes  a  different 
faith ;  or  if  it  carries  him  in  any  instance  to  intolerance, 
[in  action,  not  idea],  liberty  itself  requires  he  should  be 

restrained,  and  that,  in  such  instances,  he  should  lose  his 

liberty."32 

James  Adair — 1785. 

James  Adair,  sargeant  at  law,  recorder  of  London,  whig 
member  of  parliament,  and  king's  sargeant,  was  one  of 
the  distinguished  liberalizing  forces  of  England.  With 
Erskine  and  others  he  appeared  in  some  of  the  great  his- 
toric trials  of  his  time.  He  also  left  a  number  of  con- 
troversial pamphlets. 

In  "Discussions  of  the  Law  of  Libels"  in  the  form  of  dia- 
logue Lond.  1785  (anonymous,  but  ascribed  to  James 
Adair)  I  find  this:  "The  character  of  the  offense  as  you 
describe  it,^^  has  rather  an  anomalous  appearance;  your 
definition  does  not  necessarily  require  it  to  have  been 
attended  with  actual  injury  to  the  public:  the  injurious 
public  consequences  of  it  are  not  positive,  but  merely  pre- 
sumptive. It  is,  in  this  respect,  I  think,  distinguishable 
from  offences  in  general  which  consist  rather  in  the  injury 
itself  than  in  the  bare  tendency  of  it.      Other  offences 

"Additional  observations  on  the  nature  and  valu-;   of  civil  liberty 
and  the  war  with  America.    Lond.  1777,  pp.  11-12. 
I        "Hawkin's  Pleas  of  the  Crown,  b  i,  c.  7Z,  sec.  i.  3. 


422  BLASPHEMY 


require  realities  to  tlieir  composition,  this  is  wholly  com- 
posed of  presumptions  and  probabilities.  ♦  ♦  ♦ 

"The  public  tranquility,  as  it  is  the  only  security  of 

/an  arbitrary  government,  is  the  object  to  which  it  sacrifices 

(^  eyery  other.     The  apprehension  of  a  disturhcmce  of  the 

public  peace  from  the  resentment  of  the  individual  is,  I 

think  J  rather  imputable  to  the  suspicious  vigilance  and 

^   timidity  of  a  bad  (povernment  than  to  the  firmness  of  a 

\  good  one" 

If  "tendency  to  a  breach  of  the  peace"  is  the  test  of 

criminal  jurisdiction,  then  our  author  argues  that  "all 

/  those  affronts,  which  in  the  sense  of  modern  honor,  are 

/    considered  as  signals  for  an  appeal  to  the  'trial  by  battle' 

i    become  criminally  cognisable." 

^  "For  even  where  intended  violence  to  any  one  is  mani- 
fested by  direct  and  positive  menaces,  the  law  does  not 
punish  such  intention,  but  merely  takes  security  that  it 
shall  not  be  committed,  not  from  the  party  against  whom, 
but  from  whom  it  is  apprehended.  In  this  case  the  party 
is  punished  who  is  presumed  to  have  excited  a  resentment 
of  which  himself  is  to  be  the  object"  (p.  47).  Our  author 
suggests  that  he  might  reach  a  different  conclusion  if  a 
libel  was  designed  to  produce  an  assault  upon  some  one 
other  than  the  libellant  himself. 

"This  character  of  this  offence  [Libel]  as  you  describe  it 
(Hawkins'  Pleas  of  the  Crown,  b.  1  c,  73  sec.  i,  3),  has 
rather  an  anomalous  appearance ;  your  definition  does  not 
necessarily  require  it  to  have  been  attended  with  actual 
injury  to  the  public ;  the  injurious  public  consequences  of 
it  are  not  positive,  but  merely  presumptive.  It  is,  in  this 
respect  I  think  distinguishable  from  offences  in  general 
which  consist  rather  in  an  injury  itself,  than  in  the  bare 
tendency  to  it.  Other  offences  require  realities  to  their 
composition,  this  is  wholly  composed  of  presumption  and 
probabilities.  ♦  ♦  ♦ 

"The  public  tranquility  as  it  is  the  only  security  of  an 
arbitrary  government,  is  the  object  to  which  it  sacrifices 
every  other.  *  *  ♦  I  think  I  perfectly  understand  the 
spirit  of  Lord  Coke's  eulogium  on  the  Court  of  Star  Cham- 
ber, 'this  court,  the  right  institution  and  antient  orders 


OVERT  ACT  AND  ACTUAL  INJURY         423 

thereof  being  observed,  doth  keep  all  England  in  qniet.' 
(4  Inst.  c.  5.)  ♦  *  *  In  the  darkest  pages  of  our  history, 
I  collect  the  purposes  of  this  institution  from  the  purposes 
to  which  it  has  actually  been  employed."^* 

An  Anonymous  Critic— 1791. 
This  critic  of  Blackstone's  conception  of  free  speech  has 
already  been  quoted  (see  p.  116  herein).  He  also  re- 
pudiated the  test  of  psychologic  tendency  as  the  basis  for 
criminal  jurisdiction.  At  this  time,  attention  is  again 
called  to  the  statement  already  quoted,  to  make  the  present 
record  more  complete. 

Eev.  Robert  Hall — 1793. 

Rev.  Robert  Hall  (1764-1831)  was  an  English  Baptist 
minister  of  great  reputation.^^  Among  other  matters  he 
published  "Christianity  Consistent  with  the  love  of  Free- 
dom" 1791;  "Apology  for  Freedom  of  the  Press,"  1793, 
which  was  separately  republished.  There  has  been  also 
published  his  collected  works  in  six  volumes. 

He  expresses  the  limits  of  liberty  in  these  words :  "The 
most  capital  advantage  an  enlightened  people  can  enjoy 
is  the  liberty  of  discussing  every  subject  which  can  fall 
within  the  compass  of  the  human  mind;  while  this  re- 
mains, freedom  will  flourish ;  but  should  it  be  lost  or  im- 
paired, its  principles  will  neither  be  well  understood  or 
long  retained.  To  render  the  magistrate  a  judge  of  truth, 
and  engage  his  authority  in  the  suppression  of  opinions, 
shews  an  inattention  to  the  nature  and  design  of  political 
society.  ♦  *  ♦ 

"To  comprehend  the  reasons  on  which  the  right  of  public 
discussion  is  founded,  it  is  requisite  to  remark  the  dif- 
ference between  sentiment  and  conduct.  ♦  ♦  ♦ 

"Nor  is  there  any  way  of  separating  the  precious  from 
the  vile  but  tolerating  the  whole.  ♦  ♦  ♦ 

"The  doctrine  of  tendencies  is  extremely  subtle  and  com- 
plicated. ♦  ♦  ♦ 

••Discussions  of  the  law  of  libel  by  [James  Adair].  Lond.  1785, 
p.  27,  33,  35,  44,  47.  See  also :  Dictionary  of  national  biography,  vol. 
1,  p.  69. 

"Dictionary  of  national  biography,  v.  24,  pp.  85-87. 


424  BLASPHEMY 


^^This  dread  of  certain  opinions,  on  account  of  their 
tendencyy  has  heen  the  copious  spring  of  all  those  reli- 
gious wars  and  persecutions^  which  are  the  disgrace  OMd 
calamity  of  modern  times,  ♦  ♦  ♦ 

"The  law  hath  amply  provided  against  overt  acts  of 
sedition  and  disorder,  and  to  suppress  mere  opinions  by 
any  other  method  than  reasoning  and  argument  is  the 
height  of  tyranny.  Freedom  of  thought  being  intimately 
connected  with  the  happiness  and  dignity  of  man  in  every 
stage  of  his  being,  is  of  so  much  more  importance  than 
the  preservation  of  any  constitution,  that  to  infringe  the 
'former  under  pretence  of  supporting  the  latter,  is  to 
sacrifice  the  means  to  the  end.  ♦  ♦  ♦ 

"When  public  discontents  are  allowed  to  vent  themselves 
in  reasoning  and  discourse,  they  subside  into  a  calm;  but 
their  confinement  in  the  bosom  is  apt  to  give  them  a  fierce 
and  deadily  tincture.  The  reason  of  this  is  obvious.  As 
men  are  seldom  disposed  to  complain  till  they  at  least 
imagine  themselves  injured,  so  there  is  no  injury  which 
they  will  remember  so  long,  or  resent  so  deeply,  as  that 
of  being  threatened  into  silence.  This  seems  like  adding 
triumph  to  oppression,  and  insult  to  injury.  The  appar- 
ent tranquility  which  may  ensue,  is  delusive  and  ominous; 
it  is  that  awful  stillness  which  nature  feels,  while  she  is 
awaiting  the  discharge  of  the  gathered  tempest.  ♦  ♦  ♦ 

"If  the  Government  wishes  to  become  more  vigorous,  let 
it  first  become  more  pure,  lest  an  addition  to  its  strength 
should  only  increase  its  capacity  for  mischief.  ♦  ♦  ♦ 

"The  free  use  of  our  faculties  in  distinguishing  truth 
from  falsehood,  the  exertion  of  corporeal  powers  without 
injury  to  others,  the  choice  of  a  religion  and  worship,  are 
branches  of  natural  freedom  which  no  government  can 
justly  alter  or  diminish,  because  their  restraint  cannot 
conduce  to  that  security  which  is  its  proper  object."*' 

Christopher  Martin  Wieland — 1795. 
Christopher  Martin  Wieland  (1733-1813)  was  a  volum- 
inous writer  sometimes  called  the  Voltaire  of  Germany. 

"An  apology  for  the  freedom  of  the  press,  and  for  general  liberty. 
London,  1793,  pp.  2,  3,  4,  13,  18,  21,  53,  54. 


OVERT  ACT  AND  ACTUAL  INJURY         425 


He  was  also  professor  of  philosophy  and  polite  literature. 
Here  is  part  of  a  discussion  of  his,  which  appeared  in 
England  and  which  deals  with  the  imaginary  excesses  in 
the  use  of  intellectual  freedom.  These  statements  by 
Mr.  Wieland  have  an  obvious  application  to  the  penalizing 
of  a  mere  offensive  literary  style.  It  should  be  said  how- 
ever, that  Mr.  Wieland  was  not  insistent  upon  complete 
intellectual  liberty. 

"I  know  not  what  cause  many  nice  people  may  have  for 
being  so  quarrelsome  with  the  liberty  of  the  press:  but 
of  this  I  am  well  assured,  that  Augustus  or  Titus  would 
have  taken  it  very  ill  of  any  one  who  should  have  sug- 
gested to  either  of  them  only  the  thought  of  wanting  to  sup- 
press the  freedom  of  speaking  and  writing  (printing  was 
not  in  being  in  their  times)  on  account  of  the  too  bold  use  a 
Laberius,  for  example,  had  made  of  it.  What  opinion  should 
we  have  entertained  of  the  wisdom  of  a  Solon,  if  he  had 
caused  daily  to  be  weighed  out  to  his  Athenians,  by  ounces 
and  scruples,  how  much  it  were  proper  for  them  to  eat, 
because  sad  experience  teaches,  that  one  or  other  at  times 
eats  more  than  is  fit?  And  do  you  think,  that  even  Solon 
himself,  supposing  he  had  providently  ventured  so  far, 
would  have  bought  himself  off  hy  the  distmction  between 
freedom  of  eating  and  freedom  of  gormandizing ^  with  the 
grandfathers  of  Socrates  and  Aristophanes?  I  hope  then 
that  I  have  perfectly  set  your  mind  at  rest  by  this  little 
effusion  of  my  thoughts.  He  that  has  abused  the  free- 
dom of  eating  into  gluttony,  must  be  contented  to  swallow 
a  digestive  powder  or  an  emetic.  He  that  has  abused  the 
freedom  of  the  press  into  licentiousness,  merits,  for  the 
first  offence — a  reprehension  for  his  future  caution:  but 
the  freedom  of  the  press  remains,  notwithstanding,  like 
the  freedom  of  eating,  as  unlimited  as  before — or — so 
much  the  worse."^'' 

Tunis  Wortman — 1800. 
This  American  author  and  staunch  friend  of  Jefferson 
also  repudiated  the  "tendency"  test  of  criminality.      He 

"Varieties  of  literature,  from  foreign  literary  journals  and  original 
manuscripts  now  first  published,  volume  the  second.  London,  1795. 
pp.  255-6. 


426  BLASPHEMY 


has  been  quoted  among  Blackstone's  critics  (page  121 
herein).  Re-reading  is  recommended.  This  book  vas 
circulated  as  propaganda  material  for  years  before  the 
adoption  of  the  Connecticut  Bill  of  Rights. 

Philagatharches — 1810. 

This  author  is  another  of  the  few  who  have  successfully- 
concealed  their  identity.  His  book  of  1810,  was  issued 
in  the  second  edition,  in  1811.  Coming  eight  years  before 
the  adoption  of  the  Connecticut  constition  it  was  thought 
material  here. 

"One  gross  abuse  of  liberty,  in  freely  publishing  our  sen- 
timents to  the  world,  is,  the  profanation  of  the  Divine 
character,  by  denying  some  of  the  perfections  of  the  God- 
head; by  attributing  to  him  other  properties,  which  his 
revealed  will  denies  that  he  possesses;  and,  by  the  sacri- 
legious application  of  his  ^Holy  and  Reverend'  name,  to 
vicious,  or  even  ordinary  subjects. 

"In  close  connection  with  this  description  of  the  abuse 
of  liberty  is  the  inculcation  of  infidel  principles,  which 
teach  us  to  renounce  the  doctrines  and  precepts  of  scrip- 
ture ;  to  reject,  as  spurious,  that  revelation  which  God  has 
given  of  his  will ;  and  to  trust  the  light  of  human  reason  to 
guide  us  to  eternal  happiness.  But,  while  these  are  crimes 
of  enormous  magnitude  in  the  estimation  of  God,  for  which 
he  will  bring  these  impious  transgressors  into  judgment, 
they  are  not  proper  subjects  of  the  magistrate's  coersion; 
they  do  not  disturb  the  peace  of  the  state;  and,  therefore, 
the  publication  of  them  cannot  fall  within  his  jurisdiction, 
as  conservator  of  the  publick  peace."  * 

The  American  development  of  this  same  concept  of  free 
speech,  through  Roger  Williams,  James  Madison  and 
Thomas  Jefferson,  will  be  told  later.  So  far  we  have 
traced  much  of  the  demand  and  meaning  of  religious  lib- 
erty with  special  emphasis  on  England.  The  reading  of 
this  record  makes  it  plain  almost  to  a  demonstration,  that 
for  some,  centuries  before  the  adoption  of  our  constitu- 

*  Hints  on  toleration :  in  five  essays :  *  *  *  suggested  from  the  con- 
sideration of  The  R't.  Hon.  Lord  Viscount  Sidmouth,  and  the 
Dissenters,  by  Philagatharches.  London,  1811,  pp.  274-275.  First 
edition  published  at  Broxbourn,  1810. 


OVERT  ACT  AND  ACTUAL  INJURY         427 

tional  guarantees,  the  friends  of  intellectual  limitation 
always  justified  their  censorship  by  the  claim  that  blas- 
phemous opinions  had  a  tendency  to  disturb  the  peace. 
The  friends  of  mental  freedom  asserted  that  such  sjyecula- 
tions  about  a  psychologic  tendency  were  not  sufficient  to 
give  the  state  jurisdiction  to  punish  the  expression  of  dis- 
approved ideas.  Their  contention  was  that  the  expression 
of  human  thought  as  such  must  be  absolutely  free  up  to 
the  point  where  actual  and  material  injury  results.  It 
was  this  latter  view  which  was  approved  and  written  into 
CUP  constitutions  for  the  very  purpose  of  destroying  the 
former  practice  and  repudiating  the  theory  by  which  it 
was  sought  to  be  justified. 

If  some  American  courts  seem  to  have  acted  as  if  this 
was  not  the  case,  one  can  only  excuse  them  by  under- 
standing that  the  judges  were  merely  expressing  their 
personal  desires  or  bigotry  and  were  not  considering  nor 
passing  upon  the  historical  facts  or  issues  involved.  These 
have  never  been  even  considered  or  mentioned  in  such  a 
case  as  this.  Thus  the  judges  also  make  it  plain  to  us 
that  they  had  not  reached  that  stage  of  maturity  in  their 
intellectual  processes  where  men  are  tempted  to  submit 
their  whims,  caprices,  and  prejudices  to  the  check  and 
justification  of  the  widest  scope  of  the  objective  realities 
of  their  problem.  An  effort  is  here  being  made  to  present 
much  of  the  available  material  for  such  objective  check  and 
justification.  It  remains  for  each  person  to  whom  it  may 
come  to  reveal  their  own  intellectual  status  by  making 
such  use  of  this  material  as  their  respective  desires  prompt 
and  their  mental  capacities  permit. 

When  enough  persons  come  to  feel  in  accord  with  the 
thought  of  the  foregoing  leaders  in  the  movement  for  in- 
tellectual freedom,  paper  guarantees  become  possible. 
When  our  courts  think  in  accord  with  this  pre-revolution- 
ary  growth  toward  mental  liberty,  paper  constitutions  will 
be  made  efficient,  not  mere  meaningless  "scraps  of  paper.'' 
What  will  the  verdict  be? 


CHAPTER  XXI. 

ROGER  WILLIAMS,  JAMES  MADISON, 
AND  THOMAS  JEFFERSON. 

This  contest  for  intellectual  freedom  and  its  meaning, 
which  has  been  set  forth  with  much  precision  as  it  worked 
out  in  England,  will  now  be  traced  to  American  soil. 
Here  we  may  again  remind  ourselves  that  the  correct 
interpretation  of  our  constitutional  guarantees  of  free- 
dom is  nowhere  more  appropriately  sought  than  in  the 
historic  issues  which  were  decided,  the  former  policies  that 
were  overruled,  and  in  the  evil  sought  to  be  remedied,  by 
our  constitutions.^  It  is  also  important  to  remember  that 
none  of  the  pre-revolutionary  historical  data  either  from 
England,  or  from  Roger  Williams  in  America,  has  ever 
been  considered  by  any  American  court,  as  an  aid  to  as- 
certaining the  meaning  of  intellectual  liberty  in  relation  to 
religion. 

Roger  Williams  and  Secularism. 

In  England  the  slowly  changing  attitude  toward  toler- 
ance may  be  said  to  date  from  Milton^s  immortal  "Areo- 
pagitica,'^  published  in  1644.  The  Star  Chamber  court  was 
abolished  in  1641.  During  its  existence  a  youth  named 
Roger  Williams  took  shorthand  notes  of  the  speeches  and 
proceedings.  Thus,  doubtless,  he  learned  something  of 
what  does  not  constitute  liberty.  He  probably  studied 
law  with  Sir  Edward  Coke,  but  abandoned  that  callir^g 
for  the  ministry.  He  left  for  America  December,  1630, 
and  settled  in  Massachusetts. 

The  founders  of  the  Connecticut  colonies  came  from 
Massachusetts  and  brought  with  them  all  the  theocratic 
notions  of  the  dominant  Puritan  faction.  Roger  Williams 
had  l»ecn  under  their  suspicion  for  some  time  for  his  too 
great  liberality,  and  the  circumstance  of  his  expulsion 
has  been  briefly  related. 

'Reynolds  v.  U.  S.,  98  U.  S.  145-162. 
Gibbons  v.  Ogden,  9  Wheaton  1 ;  6  Law.  Ed.  1. 
Scott  V.  Sanford,  19  Howard  393;  15  Law.  Ed.  691. 
Boyd  V.  U.  S.,  116  U.  S.  616-622-625. 
So.  Carolina  v,  U.  S.,  199  U.  S.  437, 

428 


WILLIAMS^     MADISON^     JEFFERSON  429 

The  colony  of  Rhode  Island  which  Williams  founded 
was  built  upon  an  entirely  different  theory  of  government 
from  any  that  had  previously  obtained  in  America  or 
Europe.  Here  we  find  the  first  declaration  of  a  democracy, 
and  the  beginnings  of  a  secular  state  devoted  to  toleration 
in  a  new  sense.  We  must  understand  Roger  Williams' 
conception  of  tolerance  if  we  would  understand  the  mean- 
ing of  constitutional  freedom  of  speech  and  press,  es- 
pecially on  the  subject  of  religion. 

The  colony  at  Providence  undertook  to  define  and  defend 
human  liberty  in  matters  of  religion,  instead  of  that  "lib- 
erty of  the  gosper^  by  which  others  sought  to  dominate 
in  temporal  affairs.  Roger  Williams  and  his  followers 
were  for  the  protection  of  complete  intellectual  freedom, 
and  in  1637  went  so  far  as  to  disfranchise  a  man  for  re- 
fusing liberty  of  conscience  to  his  wife^  in  not  permitting 
her  to  go  to  meeting  as  often  as  she  desired. 

During  the  following  years  there  raged  a  considerable 
American  controversy  over  the  subject  of  free  speech  in 
matters  of  religion.  In  this  controversy  Williams  pub- 
lished a  number  of  tracts  in  criticism  of  the  intolerance 
of  his  Massachusetts  and  Connecticut  neighbors  and  in 
defense  of  his  own  position  against  the  attacks  9f  the 
Puritan  divines.  The  collection  of  Williams'  tracts  has 
been  republished  under  the  title  of  "The  Bloody  Tenet  of 
Persecution."  I  quote  from  the  London  edition  of  1848. 
Here  we  find  the  beginning  of  the  free  speech  controversy 
in  Rhode  Island,  in  Connecticut  and  in  the  United  States. 
For  over  a  century  this  controversy  raged  between  theo- 
cracy and  democracy,  and  between  free  speech  and  blas- 
phemy laws.  By  the  time  the  American  constitutions  were 
formed,  these  ideas  of  Roger  Williams  had  secured  the 
ascendency  over  the  idea  of  the  majority  among  the  earlier 
Massachusetts  and  Connecticut  colonists.  Under  the  lead- 
ership of  Jefferson  and  the  Virginia  Act  of  Toleration, 
our  American  constitutions  recorded  the  people's  verdict 
in  favor  of  the  contentions  of  Roger  Williams  for  a  separa- 
tion of  church  and  state,  and  in  favor  of  free  speech  for 

•Bloody  Tenet  of  Persecution,  p.  28;  also:  Records  of  the  Colony; 
of  Rhode  Island,  p.  16. 


4:30  BLASPHEMY 


all  controversies  over  religion.  To  understand  the  sig- 
nificance of  that  new  constitutional  policy  of  freedom  of 
discussion,  we  must  compare  the  idea  of  the  earlier  colon- 
ists with  those  later  and  contrary  ideas  which  found  ex- 
pression in  the  constitutions  of  Connecticut  and  of  the 
United  States. 

Truth  vs.  Peace. 

In  his  discourses  Williams  personified  the  two  sets  of 
ideas  under  the  form  of  a  dialogue  between  Peace  and 
Truth..  These  words  really  symbolized  the  conflict  quite 
perfectly.  The  friends  of  censorship  and  repression  al- 
ways ma^e  their  justification  to  depend  upon  the  impor- 
tance of  immediate  and  transient  peace-requirements.  In 
the  interests  of  this  immediate  peace  they  are  willing  to 
suppress  irritating  claims  of  truth,  and  to  ignore  the  more 
remote  and  less  apparent  advantages  of  intellectual 
freedom. 

The  friends  of  free  speech  always  place  the  emphasis 
upon  the  relatively  greater  importance  to  be  attached  to 
claims  of  truth.  In  consequence  of  this  different  valua- 
tion, the  friends  of  truth  say  that  for  its  sake  we  must  take 
some  chances  on  disturbing  the  immediate  peace,  but  we 
believe  that  in  the  long  run  peace  will  be  more  lasting, 
because  more  intelligently  conditioned,  where  all  claims  of 
truth  are  given  full  freedom  to  be  heard. 

The  early  Connecticut  settlers  had  the  absolute  and  only 
divine  truth,  and  wanted  only  "the  liberty  of  the  gospel." 
Therefore,  in  a  conflict  between  mere  heretical  claims  of 
truth  and  their  own  absolute  truth  and  peace  of  mind, 
they  always  decided  in  favor  of  the  latter.  The  Rhode 
Jsland  colonies  were  perhaps  equally  certain  that  they 
possessed  the  absolute  truth,  but  disagreed  with  their  neigh- 
bors as  to  methods  of  propagating  truth.  They  placed 
emphasis  on  free  speech  for  all,  as  the  very  best  means 
of  establishing  truth  more  perfectly  in  the  minds  of  men. 
The  Connecticut  and  Massachusetts  colonists  placed  their 
confidence  in  the  efficacy  of  forceful  suppression  of  "error." 
A  more  modern  conception  is  that  all  claims  of  truth  should 
be  tolerated  because  none  of  us  can  have  the  absolute  truth ; 
because  all  "truth"  is  but  a  partial  and  incomplete  aspect 


WILLIAMS^    MADISON^     JEFFERSON  431 

of  the  absolute  truth  and  is  a  relative  and  a  purely  per- 
sonal concept. 

In  order  to  make  clear  the  conflict  between  the  ideas 
of  tolerance  entertained  by  Roger  Williams,  and  embodied 
in  the  Federal  and  the  Connecticut  constitutions,  and  those 
views  entertained  by  earlier  colonists  as  embodied  in  the 
blasphemy  statute  of  1642,  it  becomes  necessary  to  give 
a  more  thorough  portrayal  of  Williams'  contention,  even 
at  the  risk  of  becoming  tiresome. 

The  Prosecution  is  Breach  of  the  Peace. 

When  Williams  was  told  that  he  erred  in  defending  the 
rights  of  those  who  expressed  themselves  with  such  "ar- 
rogance and,  impetuousness  as  of  itself  tended  to  the  dis- 
turbance of  the  peace,''  he  drew  the  line  between  spiritual 
peace  and  civil  peace.  He  pointed  out  how  a  company  of 
men  might  "hold  disputations,  and  in  matters  concerning 
their  society  may  dissect,  divide,  break  into  schism  and 
factions,  sue  and  implead  each  other  at  the  law,  wholly 
break  up  and  dissolve  into  pieces  and  nothing,  and  yet  the 
peace  of  the  city  not  be  in  the  least  measure  impaired  or 
disturbed."  Citing  other  illustrations,  he  concludes :  "And 
notwithstanding  those  spiritual  oppositions  in  point  of 
worship  and  religion,  yet  hear  we  not  of  the  least  noise, 
nor  heed  we,  if  men  keep  but  the  bond  of  civility,  of  any 
civil  breach,  or  breach  of  civil  peace  among  them,  and  to 
persecute  God's  people  then  for  religion,  that  only  vms  a 
breach  of  civilty  itself.'' 

He  classifies  his  opponents  with  satanic  accusers  in  these 
words:  "Which  charge  [that  dissenters  are  arrogant  and 
impetuous],  together  with  that  of  obstinacy,  pertinacity, 
pride,  troublers  of  the  City,  etc.,  Satan  commonly  loads  the 
meekest  of  the  saints  and  witnesses  of  Jesus  with"  (p.  49). 
This  he  justifies  by  reference  to  the  Bible.  Thus  he  makes 
plain  that  he  does  not  intend  to  heed  the  cry  of  fear  of 
disturbing  the  peace,  which  is  too  easy  a  pretense  in  the 
hands  of  persecutors. 

I  will  now  quote  some  of  this  dialogue  between  Peace 
and  Truth  which  will  show  that  Boger  Williams  believed 
in  tolerance  even  for  irritatins:  disputation.  Instead  of 
encouraging  the  intolerant  spirit  by  suppressing  the  irri- 


432  BLASPHEMY 

tating  speech,  his  theory  encouraged  tolerance  by  punish- 
ing those  whose  intolerance  induced  them  to  disturb  the 
civil  peace  by  using  force  to  suppress  irritating  utterances. 
"Truth"  continues  thus :  "God's  people,  in  delivering  the 
mind  and  will  of  God  concerning  the  kingdoms  and  civil 
states  where  they  have  lived,  have  seemed  in  all  show  of 
common  sense  and  rational  policy,  if  men  look  not  higher 
with  the  eye  of  faith,  to  endanger  and  overthrow  the  very 
civil  state,  as  appeareth  by  all  Jeremiah's  preaching  and 
counsel  to  King  Zedekiah,  his  princes  and  people,  insomuch 
that  the  charge  of  the  princes  against  Jeremiah  was  that 
he  discouraged  the  army  from  fighting  against  the  Baby- 
lonians, and  weakened  the  land  from  its  own  defense;  and 
this  charge,  in  the  eye  of  reason,  seemed  not  to  be  un- 
reasonable or  unrighteous,  and  yet  in  Jeremiah  no  arro- 
gance, nor  impetuousness." 

Actual  vs.  Constructive  Disturbance. 

"Lastly  [says  Truth]  God's  people,  by  their  preaching, 
disputing,  etc.,  have  been,  though  not  the  cause,  yet  acci- 
dentally the  occasion  of  great  contentions  and  divisions, 
yea,  tumults  and  uproars  in  towns  and  cities  where  they 
have  lived  and  come;  and  yet  neither  their  doctrine  nor 
themselves  arrogant  nor  impetuous,  however  so  charged: 
for  thus  the  Lord  Jesus  discovereth  nien's  false  and  secure 
suppositions,  Luke,  xii,  51 ;  ^Suppose  ye  that  I  am  come  to 
give  peace  on  earth?  I  tell  you^  nay;  hut  rather  division; 
for  from  henceforth  shall  there  he  five  in  one  house  divided, 
three  against  two^  and  two  against  three,  the  father  shall 
he  dhnded  against  the  son  and  the  son  against  the  father, 
etc.  And  thus  upon  the  occasion  of  the  apostles'  preaching 
the  kingdom  and  worship,  of  God  in  Christ,  were  most  com- 
monly uproars  and  tumults  wherever  they  came.  For  in- 
stance, those  strange  and  monstrous  uproars  at  Iconium, 
at  Ephesus,  at  Jerusalem,  Acts  xiv,  4;  Acts  xix,  29,  40; 
Acts  xxi,  30,  31."  *  *  * 

"I  acknowledge  that  such  may  be  the  way  and  manner 
of  holding  forth,  either  with  railing  or  reviling,  daring 
or  challenging  speeches,  or  with  force  of  arms,  swords, 
guns,  prisons,  etc.,.  that  it  may  not  only  tend  to  break,  but 
may  actually  break 'the  civil  peace  or  peace  of  the  city. 


433 


"Yet  these  instances  propounded  are  cases  of  great  op- 
position and  spiritual  hostility  and  occasions  of  breach  of 
civil  peace;  and  yet  as  the  borders,  or  matter,  were  of 
gold,  so  the  specks,  or  manner  (Cantic.  i.  [II])  were  of 
silver :  both  matter  and  manner  pure,  holy,  peaceable,  and 
inoffensive. 

"Moreover,  I  answer,  that  it  is  possible  and  common 
for  persons  of  soft  and  gentle  nature  and  spirits  to  hold 
out  falsehood  with  more  seeming  meekness  and  peaceable- 
ness,  than  the  Lord  Jesus  or  his  servant  did  or  do  hold 
forth  the  true  and  everlasting  gospel.  So  that  the  answerer 
would  be  requested  to  explain  what  he  means  by  this  ar- 
rogant and  impetuous  holding  forth  of  any  doctrine,  which 
very  manner  of  holding  forth  tends  to  break  civil  peace, 
and  comes  under  the  cognizance  and  correction  of  the  civil 
magistrate,  lest  he  build  the  sepulchre  of  the  prophets, 
and  say,  //  we  had  been  in  the  Pharisee's  days,  the  Koman 
emperor's  days,  or  the  bloody  Marian  days,  we  would  not 
have  been  partakers  with  them  in  the  blood  of  the  prophets, 
Matt,  xxiii,  30,  who  were  charged  with  arrogance  and  im- 
petuousness/^  *  *  * 

^^ Truth  [continuing],  I  answer:  When  a  kingdom  or 
state,  town  or  family,  lies  and  lives  in  the  guilt  of  a  false 
god,  false  Christ,  false  worship,  no  wonder  if  sore  eyes 
be  troubled  at  the  appearance  of  the  light,  be  it  never  so 
sweet.  No  wonder  if  a  body  full  of  corrupt  humors  be 
troubled  at  strong,  though  wholesome,  physic — if  persons 
sleepy  and  loving  to  sleep  be  troubled  at  the  noise  of  shrill, 
though  silver,  alarums.  No  wonder  if  Adonijah  and  all 
his  company  be  amazed  and  troubled  at  the  sound  of  the 
right  heir.  King  Solomon,  1  Kings  i  [41,  49] — if  the  hus- 
bandmen were  troubled  when  the  Lord  of  the  vineyard 
sent  servant  after  servant,  and  at  last  his  only  son,  and 
they  beat,  and  wounded,  and  killed  even  the  son  himself,  be^ 
cause  they  meant  themselves  to  seize  upon  the  inheritance, 
unto  which  they  had  no  right.  Matt,  xxi,  38.  Hence  all 
those  tumults  about  the  apostle  in  the  Acts,  etc.  Whereas, 
good  eyes  are  not  so  troubled  at  light ;  vigilant  and  watch- 
ful persons,  loyal  and  faithful,  are  not  so  troubled  at  the 
true,  no,  nor  at  a  false  religion  of  Jew  or  Gentile. 


434  BLASPHEMY 

"Secondly.  Breach  of  civil  peace  may  arise  when  false 
and  idolatrous  practices  are  held  forth,  and  yet  no  breach 
of  civil  peace  from  the  doctrine  or  practice,  or  the  manner 
of  holding  forth,  hut  from  that  wrong  and  preposterous 
way  of  suppressing^  preventing,  and  extinguishing  such 
doctrine  or  practices  by  weapons  of  wrath  and  blood,  whips, 
stocks,  imprisonments,  banishment,  death,  etc.;  by  which 
men  commonly  are  persuaded  to  convert  heretics,  and  to 
cast  out  unclean  spirits,  which  only  the  finger  of  God  can 
do,  that  is,  the  mighty  power  of  the  Spirit  in  the  word."' 

It  is  believed  that  this  makes  it  plain  that  Eoger  Wil- 
liams repudiated  the  idea  that  punishment  should  be  in- 
flicted upon  a  speaker  for  a  speculative  opinion  about  the 
ill  tendency  of  his  utterance,  and  that  the  only  ill  tendency 
which  should  come  within  the  cognizance  of  the  criminal 
courts  was  the  actually  demonstrated  tendency  of  intoler- 
ance in  the  listener,  but  only  if  he  should  allow  it  to  ex- 
press itself  in  actual  overt  acts  of  disorder  against  the 
civil  peace.  Williams'  view  was  thus  in  harmony  with 
those  of  the  English  Dissenters  already  quoted.  This  view 
finally  prevailed  in  our  constitutions  and  becomes  authori- 
tative as  to  the  meaning  free  speech  upon  religious  subjects. 

Madison  and  Virginia  Liberty. 

Virginia  is  another  state  in  which  we  may  see  the  con- 
troversy for  religious  liberty  developing  in  such  a  manner 
as  to  shed  light  upon  the  meaning  that  should  be  given  to 
our  constitutional  guarantees.  The  leaders  of  the  move- 
ment in  Virginia  were  James  Madison  and  Thomas  Jeffer- 
son. The  opponents  were  mainly  those  of  the  EpiscopaliaB 
faith,  that  being  originally  the  established  church  of 
Virginia. 

Madison  as  a  boy  had  been  shocked  by  the  sight  of  per- 
Becution,  and  so  became  a  libertarian  in  spite  of  his  wholly 
orthodox  environment  and  education.  In  the  Virginia 
Convention  of  1776  he  was  among  its  youngest  members. 
George  Mason  drew  the  declaration  of  rights  which  in- 
cluded the  following  on  the  subject  of  toleration : 

"That  religion  or  the  duty  which  we  owe  to  our  Creator, 
and  the  manner  of  discharging  it,  can  be  directed  only  by 

'The  Bloody  Tenet  of  Persecution,  pp.  48-53. 


I 

WILLIAMS^     MADISON^     JEFFERSON  435 

reason  and  conviction,  not  by  force  or  violence;  and  there- 
fore, that  all  men  should  enjoy  the  fullest  toleration  in  the 
exercise  of  religion,  according  to  the  dictates  of  conscience, 
unpunished  and  unrestrained  by  the  magistrate,  unless 
under  the  color  of  religion  any  man  disturb  the  peace,  the 
happines  or  safety  of  society,  and  that  it  is  the  mutual 
duty  of  all  to  practice  Christian  forbearance,  love,  and 
charity  toward  each  other." 

To  those  who  do  not  ma^e  intelligent  discriminations 
between  mere  tolerance  and  a  guaranteed  liberty;  or  be- 
tween actual  and  constructive  breaches  of  the  peace;  or 
the  uncertainties  of  disturbing  "happiness"  and  the  cer- 
tainties in  the  criteria  of  guilt  essential  to  "law,"  might 
readily  have  been  content  to  accept  the  foregoing  declara- 
tion and  smooth  sounding  phrases  as  quite  adequate.  Not 
so  with  Madison. 

Let  me  tell  the  story  in  the  words  of  Gaillard  Hunt,  the 
editor  of  "The  Writings  of  Madison."  He  says:  "Almost 
alone  in  this  assemblage  of  wise  men  Madison  saw  the 
fundamental  error  contained  in  these  words.  According  to 
his  belief  there  could  properly  be  no  recognition  of  reli- 
gious rights  of  tolerance;  no  man  could  properly  be  grant- 
ed permission  to  worship  God  according  to  the  dictates  of 
his  conscience,  for  this  was  every  man's  right.  Moreover, 
the  clause  might  easily  be  so  twisted  as  to  oppress  religious 
Beets,  under  the  excuse  that  they  disturbed  *the  peace, 
the  happiness,  or  safety  of  society.'  Therefore,  he  offered 
as  an  amendment  this  substitute: 

"That  religion,  or  the  duty  we  owe  our  Creator,  and  the 
manner  of  discharging  it,  being  under  the  direction  of  rea- 
son and  conviction  only,  not  of  violence  or  compulsion,  all 
men  are  equally  entitled  to  the  full  and  free  exercise  of  it, 
according  to  the  dictates  of  conscience;  and  therefore  that 
no  man  or  class  of  men  ought  on  account  of  religion  to  be 
invested  with  peculiar  emoluments  or  privileges,  nor  sub- 
jected to  any  penalties  or  disabilities,  unless  under  color 
of  religion  the  preservation  of  equal  liberty  and  the  exist- 
ence of  the  State  be  manifestly  endangered." 

If  this  clause  had  been  adopted  the  struggle  for  religious 
liberty  in  Virginia  would  have  been  ended.    Mason,  how- 


436  BLASPHEMY 

ever,  adopted  part  of  the  amendment,  so  as  to  eliminate 
the  word  tolerance,  but  did  not  adopt  that  part  which  in- 
sisted upon  equality,  such  as  an  established  church  always 
destroys,  especially  in  the  matter  of  financial  support,  even 
though  bare  toleration  be  granted  to  others.  As  the  clause 
came  forth  and  was  adopted  it  read  as  follows : 

"That  religion,  or  the  duty  we  owe  to  our  Creator,  and 
the  manner  of  discharging  it,  can  be  directed  only  by  rea- 
son and  conviction,  not  by  force  or  violence,  and  therefore 
all  men  are  equally  entitled  to  the  free  exercise  of  religion, 
according  to  the  dictates  of  conscience ;  and  that  it  is  the 
mutual  duty  of  all  to  practice  Christian  forbearance,  love, 
and  charity  toward  each  other." 

Madison's  amendment  was  too  far  :)  variation  from  the 
former  practices  of  the  colony,  to  be  then  adopted.  The 
last  declaration  did  not  prohibit  state  support  qf  the  clergy, 
nor  did  it  provide  any  means  of  compelling  forbearance. 
However,  the  seed  had  been  sown  and  bore  fruit  later. 
Eight  years  had  elapsed  when  Madison  found  himself  a 
member  of  the  House  of  Delegates  in  1784.  Following  the 
Revolution,  a  great  decline  as  to  religious  observances 
came  into  existence.  This  furnished  a  seeming  "moral" 
justification  for  the  desire  of  the  clergy  to  be  supported 
by  the  state.  Patrick  Henry  introduced  a  bill  for  levying 
a  tax  to  support  teachers  of  Christian  religion.  The  in- 
fluential members  mostly  supported  the  bill.  All  that  Madi- 
son and  his  friends  could  do  was  to  secure  a  postponement 
so  as  to  get  time  to  make  public  opinion.^ 

At  the  request  of  others  Madison  drew  up  a  "Memorial 
and  Remonstrance  to  the  Honorable  General  Assembly  of 
the  Commonwealth  of  Virginia"  against  the  bill.  The  re- 
monstrance found  so  many  signatures  that  in  the  session 
of  1785,  the  bill  introduced  by  Patrick  Henry  was  over- 
whelmingly defeated.  It  is  well  for  our  purpose  that  we 
reproduce  a  part  of  this  remonstrance  which  deals  with 
equality  before  the  law  as  bearing  upon  the  construction 
of  our  constitutional  guarantees.  In  this  Memorial  the 
remonstrants  object :  "Because  the  bill  violates  that  equal- 

•So  far  I  have  followed  Hunt.     See:    James  Madison  and  Religious 
Liberty.     Ann.  Rep.  of  Amer.  Hist.  Ass.  v.  1,  pp.  165  to  171,  1901. 


WILLIAMS^    MADISON,    JEFFERSON  437 

ity  which  ought  to  be  the  basis  of  every  law;  and  which 
is  more  indispensable,  in  proportion  as  the  validity  or  ex- 
pediency of  any  law  is  more  liable  to  be  impeached.  *If 
all  men  are,  by  nature,  equally  free  and  independent'  all 
men  are  to  be  considered  as  entering  into  society  on  equal 
conditions,  as  relinquishing  no  more,  and  therefore  retain- 
ing no  less,  one  than  another,  of  their  natural  rights ;  above 
all  are  they  to  be  considered  as  retaining  an  ^equal  title  to 
the  free  exercise  of  religion  according  to  the  dictates  of 
conscience.'  Whilst  we  assert  for  ourselves  a  freedom  to 
embrace,  to  profess,  and  to  observe  the  religion  which  we 
believe  to  be  of  divine  origin,  we  cannot  deny  an  equal 
freedom  to  those  whose  minds  have  not  yet  yielded  to  the 
evidence  which  has  convinced  us.  If  this  freedom  be 
abused,  it  is  an  offense  against  God,  not  against  man.  To 
God,  therefore,  and  not  to  man,  must  an  account  of  it  be 
rendered."^ 

Jefferson  and  Toleration. 

This  agitation  against  a  state  supported  clergy  prepared 
the  way  for  that  true  religious  liberty  which  Madison  had 
sought  in  vain  to  have  incorporated  in  the  Bill  of  Rights 
in  1776.  Taking  advantage  of  this  changed  and  liberalized 
sentiment,  Madison  completed  his  victory  by  introducing 
the  famous  bill  for  religious  liberty  which  was  prepared  by 
Jefferson.  Of  course  there  were,  and  are  now,  throughout 
the  United  States  many  who  disapprove  of  religious  liberty. 
However,  it  is  written  into  our  constitutions  and  should 
be  maintained  by  our  courts  until  the  constitutions  are 
amended.  Since  the  opinions  of  men  like  Rogers  Williams, 
James  Madison  and  Thomas  Jefferson  were  written  into 
our  constitutional  guarantees,  their  opinions  become 
authoritative  on  matters  of  interpretation,  even  though  in- 
dividual judges  may  disagree  as  to  the  expediency  of  this 
policy.  On  this  account  it  becomes  worth  while  to  repro- 
duce their  opinions  in  such  an  argument  as  this.  Accord- 
ingly, the  present  essential  part  of  the  Virginia  Resolution 
follows : 

"To  suffer  the  civil  magistrate  to  intrude  his  power  in 

*  Memorial  and  Remonstrance,  p.  7. 


438  BLASPHEMY 

the  field  of  Opinion,  or  to  restrain  the  profession  or  propa- 
gation of  principles  on  supposition  of  their  ill  tendency, 
is  a  dangerous  fallacy,  which  at^once  destroys  all  liberty, 
because  he,  being  of  course  judge  of  that  tendency,  will 
make  his  opinions  the  rule  of  judgment,  and  approve  or 
condemn  the  sentiments  of  others  only  as  they  shall  square 
with  or  differ  from  his  own.  It  is  time  enough  for  the 
rightful  purpose  of  Civil  Government  for  its  officers  to 
interfere  when  principles  hreak  out  into  overt  acts  against 
peace  and  good  order. "^ 

It  is  important  to  acquire  a  clear  view  of  the  difference 
in  the  concept  of  mere  religious  toleration,  as  expressed 
in  the  first  declaration  of  George  Mason,  and  the  concept 
of  Jefferson,  as  expressed  in  the  final  resolution.  The  for- 
mer manifestly  expressed  only  revocable  tolerance,  limited 
by  the  whim  or  caprice  of  any  Court  which  might  declare 
the  "peace,  the  happiness,  or  safety  of  society"  to  be  in 
danger.  By  using  the  disjunctive  "or"  and  especially  by 
including  the  word  "happiness,"  it  was  evidently  designed 
that  mere  unpleasant  and  undefined  psychologic  tendencies 
should  be  a  sufficient  justification  for  abridging  intellectual 
freedom.  Jefferson  demanded  that  only  overt  acts  of  dis- 
order resulting  from  speech  should  be  punishable. 

Thomas  Jefferson  in  his  "Notes  on  the  State  of  Virginia" 
devotes  a  chapter  to  the  subject  of  religion.  He  reviews 
the  past  laws  for  persecution  and  indicates  the  changes 
that  have  been  wrought.  As  further  indicating  his  in- 
sistence upon  actual  and  material  injury  as  criteria  of 
the  jurisdiction  of  the  magistrate,  he  says :  "The  legitimate 
powers  of  government  extend  to  such  acts  only  as  are 
injurious  to  others.  But  it  does  me  no  injury  for  my 
neighbor  to  say  there  are  twenty  gods  or  no  God.  It  neither 
picks  my  pocket  nor  breaks  m/y  leg/''^ 

Jefferson's  concept,  as  expressed  in  ►the  Virginia  Act  of 
Toleration,  and  amplified  in  the  quoted  portion  of  his 
Notes  on  Virginia,  expresses  a  very  different  concept  from 
that  of  Blackstone  and  the  prior  English  courts.  Jefferson's 
is  the  concept  of  an  unabridgable  mental  liberty.     Here 

"Watson  on  The  Constitution,  v.  2,  p.  1379. 
'P.  231 — second  edition.  , 


WILLIAMS^    MADISON^    JEFFERSON  439 

no  one  may  be  punished  for  the  expression  of  any  idea 
whatever,  merely  as  a  disapproved  idea,  nor  on  the  basis 
of  any  theoretic  evil  psychologic  tendency  imagined  to  arise 
therefrom.  Here  we  have  a  positive  and  specific  denial  of 
the  right  to  punish  any  opinion  whatever,  on  the  mere  basis 
of  a  supposed  ill  tendency.  No  discretion  is  allowed  to 
interfere  according  to  whether  the  opinion  is  disapproved 
theology,  or  concerns  the  politeness  of  style  in  which  a 
theologic  opinion  is  expressed.  The  magistrate  cannot 
interfere  until  opinions  "break  out  into  overt  acts  against 
peace  and  good  order."  This,  of  course,  is  the  essence  of 
making  actual  and  mateial  injury  the  basis  of  criminality. 
This  declaration  of  the  meaning  of  religious  liberty  was 
adopted  in  Virginia  in  1785,  and  was  the  forerunner,  and 
so  measurably  interpretive,  of  the  subsequent  constitu- 
tional provisions  for  a  separation  of  church  and  state,  for 
religious  liberty  and  for  unabridged  freedom  of  speech 
and  press.    ( See :  Reynolds  v.  U.  S.,  98  U.  S.  162. ) 


CHAPTER  XXII. 
CHRISTIANITY  AND  THE  LAW. 

Thus  far  we  have  seen  that  the  real  motive  for  blasphemy 
laws  was  the  protection  of  the  privileges  and  prerogatives 
of  the  privileged  class.  The  moralistic  justification  for 
such  persecution  was  that  to  question  the  established  reli- 
gion was  a  denial  of  the  claimed  source  of  authority  in  the 
prevailing  theocracy,  and  so  tended  to  disturb  the  peace- 
able enjoyment  of  privileges  and  prerogatives  of  those  who 
governed,  and  also  tended  to  destroy  the  government  it- 
self. The  better  to  sustain  their  undemocratic  advantage, 
it  was  suported  by  a  claim  of  divine  right,  first  through 
tho  mediation  of  the  Pope,  and  later  directly  and  without 
any  intermediary.  Thus  blasphemy  became  necessarily 
viewed  as  a  sort  of  lesser  treason,  and  official  Christianity 
was  the  supreme  part  of  the  law.  Canon  law  was  deemed 
the  foundation  stone  of  the  common  law. 

It  has  been  shown  that  the  divine  right  dogma,  for  the 
protection  of  privileges  and  prerogatives  are  wholly  in- 
consistent with  our  more  democratic  conceptions.  It  is 
our  theory  that  laws  and  governments  come  up  from  out 
of  the  people,  and  not  down  from  above  the  populace.  This 
is  wholly  inconsistent  with  blasphemy  prosecutions.  How- 
ever,  against  this  contention  there  are  some  American  de- 
cisions which  follow  the  early  British  precedents  in  hold- 
ing that  Christianity  is  a  parcel  of  the  law  of  the  land.^ 
It  now  remains  to  destroy  the  value  of  such  American  pre- 
cedents by  the  more  thorough  examination  of  the  reasoning, 
the  facts  and  a  modern  British  precedent  which  supports 
the  contrary  view.  The  questions  then  are,  first :  from  the 
more  enlightened  and  democratic  viewpoint  can  it  be  ad- 
mitted that  Christianity  was  ever  properly  a  part  of  our 
law?  Second :  if  so,  then  we  still  ask  if  that  concept  was 
not  prohibited  by  the  general  intellectual  development  as 
expressed  by  our  constitutional  guarantees  of  religions  lib- 
erty, equality  and  free  speech? 

*  Mahoney  v.  Cook,  26  Pa.  St.  347. 
Sparhawk  v.  Union  Pass.  R.  Co.,  54  Pa.  St.  406. 
Charleston  v.  Benjamin,  2  Strobh.  L.  So.  Car.  521,  49  Amer.  Dec.  608. 

440 


christianity   and   the  law  441 

Church  and  State. 

It  appears^  that  centuries  ago  the  ecclesiastical  courts 
probably  attended  to  the  greater  part  of  the  offences  that 
were  penalized  in  that  relatively  simple  social  order  under 
their  jurisdiction.  The  reason  for  this  is  plain  from  the 
theologic  viewpoint.  The  Rev.  J.  Dodd^  expresses  the  old 
conception  thus :  "All  law  in  the  abstract,  emanated  from, 
and  is  based  upon,  the  originating  will  of  God.  *By  me 
Kings  reign,'  saith  Wisdom^  *and  Princes  decree  justice.' 
And  St.  Paul,  too,  puts  forward  the  principle  very  prom- 
inently to  the  law-giving  people  to  w^hom  he  addressed  his 
epistle.  ^There  is  no  power  but  of  God.'  'The  powers  that 
be,'  i.e.  whether  of  legislation  or  administration  'are  or- 
dained of  God.' " 

For  centuries  the  effort  was  to  apply  this  literally.  So 
came  the  legal  maxim  that  "The  best  rule  is  that  which 
advances  religion."  Thus  also  do  Noy,  Blackstone  and 
others  tell  us  that  statutes  contravening  the  divine  law 
are  void.^ 

Three  Stages  of  Evolution. 

Roughly  speaking  the  controversy  over  the  relation  of 
the  Church  and  State  may  be  divided  into  three  stages.^ 
In  the  first  stage  there  is  almost  a  universal  acqui^ence  ~) 
in  the  supremacy  of  the  ecclesiastical  and  theologic  author-/^ 
ity.     Here  the  theory  is  that  the  State  is  but  the  secular  > 
arm  of  the  Church  for  establishing  the  government  and 
will  of  God  upon  earth,  and  all  authority  comes  from  on   ] 
high,  from  above  the  people.    The  King  is  practically  the  { 
creature  of  the  Pope  or  priests  and  a  "God  upon  the  earth."  j 
Canon  law  is  authoritative  in  the  determination  of  com-*^ 
mon-law.     The  chief  function  of  the  King  is  to  aid  and 
serve  the  clergy,  or  as  they  would  say  to  serve  the  religion 
of  the  only  true  God. 

In  the  second  stage  of  this  development  the  union  of 
Church  and  State  is  theoretically  just  as  thorough  and 
complete  as  before,  but  the  emphasis  is  reversed.     Now 

*  From  Stephen's  Hist.  Crim.  Law  of  England,  v.  2,  p.  400  to  end. 
"Hist,  of  Canon  Law,  p.  6. 

*  Prov.  VHI,  15. 

*  Broom's  Legal  Maxims.  Eighth  Edit.  p.  13  and  authorities  cited. 


442  BLASPHEMY 

the  secular  authority  is  of  recognized  dominance,  and  the 
Church  becomes  a  mere  tool  of  the  secular  power.  Instead 
of  the  throne  being  subordinated  to  the  priesthood,  we  now 
find  the  priesthood  subject  to  the  government,  though  still 
recognized  as  part  of  it.  Here  the  authority  and  the  in- 
fluence of  the  spiritual  aristocrats  has  become  more  or  less 
subordinated  to  the  power  of  the  temporal  aristocrats,  or 
at  worst  it  is  equal  and  co-ordinate.  The  transition  is  one 
away  from  the  power  of  God,  and  the  authority  of  his 
"mouthpieces''  toward  the  supremacy  of  those  possessing 
the  greater  economic  power  and  the  authority  of  the  secular 
phases  of  their  political  institutions.  Now  the  more  im- 
portant function  of  the  clergy  is  to  give  support  to  privi- 
leges and  prerogatives  of  secular  aristocrats. 

The  third  stage  finds  all  authority  of  God  and  of  the 
special  power  of  the  ecclesiasts  in  the  affairs  of  government 
as  such,  to  be  theoretically  repudiated  as  also  is  the  special 
authority  and  political  right  of  a  secular  aristocracy.  Now 
the  process  of  change  has  gone  to  its  logical  conclusion. 
Those  who  are  unprepared  for  this  complete  transforma- 
tion verbally  console  themselves  that  they  are  still  only 
the  new  intermediaries  between  God  and  those  who  exer- 
cise political  authority.  Such  affirm  that  the  ^oice  of  the 
people  is  the  voice  of  God,  because  for  them  it  is  so  diffi- 
cult to  give  up  our  human  weaknesses  for  aristocratic  dis- 
tinctions founded  upon  the  claim  of  super-human  affilia- 
tions. Such  persons  still  prove  their  own  aristocracy  by 
insisting  that  their  religion  is  even  now  part  of  the  law. 
With  those  who  are  completely  emancipated  from  the 
medieval  mode  of  thinking,  political  authority  and  power 
from  above  the  people  has  been  supplanted  by  a  political 
power  and  authority  arising  wholly  and  purely  from  out 
of  the  people,  merely  as  human  beings,  not  as  agents  of 
Omnipotence.  This  is  the  road  from  theocracy  through 
secular  aristocracy  to  a  political  democracy.  This  evolu- 
tion will  now  be  traced  in  our  juridical  history,  that  it  may 
receive  proper  recognition  in  the  interpretation  of  our 
constitutional  guarantees  of  intellectual  and  religious 
liberty. 


christianity   and   the   law  443 

Reason  vs.  Authority. 

We  have  already  exhibited  the  opposition  of  the  ^'dissent- 
ers"- to  the  concept  that  the  more  orthodox  Christianity 
is  a  part  of  the  law.  Parallel  with  this  was  a  gradual  in- 
crease in  the  judicial  curtailment  of  this  doctrine.  As 
early  as  1649,  Chief  Justice  Kebble  expressed  such  a  limi- 
tation in  these  words :  "You  say  w^ell :  The  law  of  God  is 
the  law  of  England,  and  you  have  heard  no  law  else,  but 
what  is  consonant  to  the  law  of  reason  which  is  the  best 
law  of  Gody  and  here  is  none  else  urged  against  you."® 
Thus  to  insist  upon  determining  the  law  of  God  by  reliance 
upon  reason  instead  of  relying  upon  ecclesiastical  author- 
ity, is  a  contradiction  of  the  predominant  judicial  attitude 
voiced  by  Blackstone,  and  it  is  the  entering  wedge  of  the 
process  of  secularization  and  of  democratization. 

Among  the  writers  of  legal  treatises  there  were  at  least 
two  conspicuous  critics  of  the  theory  that  Christianity  is 
part  of  the  law.  The  first  of  these  was  Major  John  Cart- 
right,  a  staunch  friend  of  the  American  Revolution  and 
of  freedom  of  speech.*^  It  was  his  book  which  inspired 
Jefferson's  letter  upon  the  same  subject,  which  is  herein- 
after quoted.  In  the  same  year  (1823)  appeared  Richard 
Mence's  vigorous  criticism  of  this  doctrine.^ 

The  next  definite  limitation  that  I  find  imposed  upon 
the  concept  of  Christianity  as  part  of  British  law,  is  made 
in  Sixth  Report  of  the  Commissioners  on  Criminal  Law. 
They  say: 

To  remove  all  possibility  of  further  doubt  the  Commis- 
sioners on  Criminal  Law  have  thus  clearly  explained  their 
sense  of  this  celebrated  passage.  "The  meaning  of  the  ex- 
pression used  by  Lord  Hale  that  ^Christianity  was  parcel 
of  the  laws  of  England,'  though  often  cited  in  subsequent 
cases,  has,  we  think,  been  much  misunderstood.  It  ap- 
pears to  us  that  the  expression  can  only  mean,  either  that 
as  a  great  part  of  the  securities  of  our  legal  system  consist 
of  judicial  and  official  oaths,  sworn  upon  the  Gospels,  Chris- 

•Lilburne's  Case,  4  HowelVs  State  Trials,  1307. 
'The    English    constitution    produced    and    illustrated,    Lond.    1823, 
pp.  388-398. 
•  Mence,  The  Law  of  Libel,  p.  321 ;  Edition  of  1824. 


444  BLASPHEMY 


tianity  is  closely  interwoven  with  our  municipal  law;  or 
that  the  laws  of  England,  like  all  municipal  laws  of  a 
Christian  country,  must  upon  principles  of  general  juris- 
prudence, be  subservient  to  the  positive  rules  of 
Christianity."^ 

The  next  instance  of  a  new  modification  was  made  by 
Lord  Coleridge  first  in  the  case  of  R.  v.  Pooley,  1857.  This 
was  reaffirmed  by  him  in  the  celebrated  prosecution  for 
blasphemy,  against  Charles  Bradlaugh  in  1882.  There 
it  is  said: 

"I  am  aware  that  a  more  severe  and  strict  view  of  the 
law  has  been  put  forth  by  persons  entitled  to  respect.  That 
any  attacks  upon  the  fundamental  principles  of  the  Chris- 
tian religion,  and  any  discussion  hostile  to  the  inspiration 
or  perfect  purity  of  the  Hebrew  Scripture  is,  however,  re- 
spectfully conducted,  against  the  law  of  the  land,  and  is 
a  subject  matter  for  prosecution.  As  at  present  advised, 
I  do  not  assent  to  that  view  of  the  law.  It  is  founded,  as 
it  seems  to  me,  upon  misunderstood  expressions  in  the  judg- 
ment of  great  judges  of  former  times,  who  have  said,  no 
doubt,  that  inasmuch  as  Christianity  is  in  a  sense  part  of 
the  law  of  the  land,  and  as  Christianity  adopts  and  assumes 
the  truth  in  some  sense  or  other ^  of  •  inspiration,  and  in 
some  sense  or  other  assumes  the  purity  of  the  Hebrew 
Scriptures,  anything  which  assails  the  truth  of  Christian- 
ity, or  asperses  the  purity  of  the  Hebrew  Scriptures,  how- 
ever respectful,  is  a  breach  of  the  law.  I  fail  to  see  the 
consequences  from  the  premises  because  you  may  attack 
anything  that  is  part  of  the  law  of  the  land,  in  respectful 
terms,  without  committing  a  crime  or  a  misdemeanor, 
otherwise  no  alteration  in  any  part  of  the  law  could  ever 
be  advocated  by  anybody.  Monarchy  is  part  of  the  law 
of  the  land ;  Primogeniture  is  part  of  the  law  of  the  land, 
and  deliberate  and  respectful  discussion  upon  the  first 
principles  of  government,  upon  the  principles  of  the  law 
of  inheritance,  upon  the  principles  which  should  govern 
the  union  of  the  sexes,  on  that  principle  so  far  as  I  can  see, 
would  be  an  indictable  libel.     The  consequences  seem  to 

"Moxon*s  Case,  2  Townsend's  Modern  Reports  390;  A.  D.  1840. 


CHRISTIANITY     AND     THE     LAW  445 

me  so  extreme  and  untenable  as  to  show  that  the  premises 
must  he  wrong}^ 

In  1863  there  came  on  another  branch  of  this  case  against 
the  co-defendants  Ramsey  and  Foote.  There  was  discussed 
the  rule  that  anything  is  a  blasphemous  libel  simply  and 
without  more  because  they  question  the  truth  of  Christian- 
ity. The  court  said :  "I  repeat,  these  dicta  cannot  be  taken 
to  be  true  in  the  sense  in  which  it  was  true  when  these  dicta 
were  uttered,  that  Christianity  is  part  of  the  law  of  the 
land.  In  the  times  when  these  dicta  were  uttered,  Jews 
Roman  Catholics,  Non-conformists  of  all  sorts  were  under 
heavy  disabilities  for  religion  and  were  regarded  as  mere- 
ly having  civil  rights."^^  It  might  also  have  been  men- 
tioned tha  *:  while  the  Church  was  still  legally  established, 
England  had  become  in  a  large  measure  democratized.  The 
King  and  the  courts  now  held  their  authority  from  the 
people,  and  not  from  God  either  directly  or  through  the 
priesthood. 

Next  in  order  comes  a  case  in  the  House  of  Lords  in 
1917.  Here  the  doctrine  that  Christianity  is  a  part  of  the 
law  of  the  land,  or  ever  was  properly  so,  is  repudiated.^^ 
This  will  be  referred  to  again  after  we  have  reviewed  the 
parallel  evolution  in  America. 

Jeffebson  vs.  Hale 

It  has  now  been  shown  that  Lord  Hale's  statement  that 
Christianity  is  parcel  of  the  laws  of  England  has  been 
much  discredited  in  recent  English  decisions.  It  remains 
to  trace  this  same  growth  in  America.  Thus  it  is  hoped 
to  destroy  the  last  vestige  of  reason  which  can  be  assigned 
in  support  of  blasphemy  laws. 

Jefferson  and  some  others  went  farther  than  the  English 
courts  in  attacking  Hale's  doctrine.  We  will  exhibit  these 
attacks,    made  upon  the   original  sources    antecedent  to 

"R.  V.  Bradlaugh,  15  Cox  Crim.  C  217-225.      See  also:    Whorton, 

Criminal  Law,  v.  3,  pp.  2116-2118. 
"R.  V.  Ramsey  &  Foote,  1  Cababe  and  Ellis  Reports   (Nisi  Prius), 

p.  126. 
"Bowman  v.  Secular  Society,  Limited;  Law  Reports,  Appeal  Cases, 

Part  IV,  pp.  406-478. 


446  blasphemt 


Hale^s  decision.  I  will  precede  Jefferson's  criticism  by 
that  of  an  anonymous  writer. 

He  says:  "I  have  examined  the  Year  Book  cited.  The 
passage  is  to  be  found  in  the  case  of  Humphrey  Bohun 
against  John  Broughton,  Bishop  of  Lincoln,  and  others — 
a  suit  for  disturbance  in  refusing  to  induct  Thomas  Young, 
presented  by  Bohun  to  the  living  of  Holborne,  in  the  coun- 
ty of  Middlesex.  The  bishop  pleads  that  on  the  same  day 
another  claimant,  to  wit,  John  Brown,  had  presented  his 
clerk,  Kichard  Ewenson ;  that  the  law  of  the  Holy  Church 
in  such  case  is  that  until  the  contest  be  decided  by  judg- 
ment on  inquisition  in  a  suit  de  jure  patronatus  (on  the 
right  of  presentation),  the  ordinary  is  not  bound  to  admit, 
and  that  it  is  the  duty  of  the  two  contending  patrons  to 
institute  such  a  suit,  and  not  the  duty  of  the  ordinary. 
This  not  having  been  done  within  six  months,  it  becomes 
the  duty  of  the  ordinary  to  present  that  there  may  be  no 
vacancy.  The  sentence  quoted  is  Prisot's  opinion,  in  page 
40b  of  the  Year  Book.  The  translation  of  the  passage  is 
as  follows :  ^To  such  law  as  the  Holy  Church  hath  under 
ancient  record  (that  is  preserved  in  old  books;  the  French 
of  holy  scripture,  is  not  ancient  scripture,  but  sainte 
ecriture),  it  hecometh  us  to  give  credence;  for  this  is  com* 
mon  law  (that  is,  this  constitutes  the  common  law  of  the 
church)  upon  which  common  law  all  other  laws  are  found' 
ed;  and  so,  sir,  we  are  hound  to  acknowledge  the  law  of 
the  holy  church;  and  in  like  manner  they  are  hound  to 
acknowledge  our  law.  And,  sir,  if  it  appear  to  us  that  the 
hishop  has  acted  as  an  ordinary  would  have  acted  in  like 
case,  we  ought  to  acknowledge  it  as  good,  otherwise 
nof'^^ 

"I  was  glad  to  find  in  your  book  [so  wrote  Jefferson  to 
Major  John  Cartwright]  a  formal  contradiction,  at  length, 
of  the  judiciary  usurpation  of  legislative  powers;  for  such 
the  judges  have  usurped  in  their  repeated  decisions  that 
Christianity  is  a  part  of  the  common  law.  The  proof  of 
the  contrary,  which  you  have  adduced,  is  incontrovertible; 
to  wit,  that  the  common  law  existed  while  the  Anglo-Saxons 
were  yet  Pagans,  at  a  time  when  they  had  never  yet  heard 


Cooper's  Law  of  Libel,  pp.  175-176. 


CHRISTIANITY    AND    THE    LAW  44' 


the  name  of  Christ  pronounced,  or  knew  that  such  a  char- 
acter iiad  existed.    But  it  may  amuse  you  to  show  when 
and  by  what  means  they  stole  this  law  upon  us.    In  a  case 
of  quare  impedit,  in  the  Year  Book,  34  Henry  VI,  folio 
38  (1458),  a  question  was  made  how  far  the  ecclesiastical 
law  was  to  be  respected  in  a  common  law  court?    And 
Prisot,  chief  justice,  (c.  5)  gives  his  opinion  in  these  words: 
"A  tiel  leis  qti'ils  de  seint  eglise  ont  en  ancien  scripture, 
covient  d  nous  a  donner  credence;  car  ceo  common  lei/  sur 
quels  touts  manners  leis  sont  fondes,    Et  auxy,  sir,  nous 
sumus  ohUges  «fe  conustre  lour  ley  de  saint  eglise,  et  seni- 
hlahlement  ils  mnt  obliges  de  consustre  nostre  Ley.    Et, 
sir,  si  pott  upperer  or  a  nous  que  Vevesque  ad  fait  come  un 
ordinary  fera  <eii  tiel  caSy  adong  nous  demons  ceo  adjuger 
ton,  ou  miterment  nemy/  &c.    See  s.  c,  Fitzhugh's  Abridge- 
ment qu.  imp,  89;  Brooke's  Abridgement,    qu.    imp.    12. 
Finch,  in  his  first  book,  c.  3.  is  the  first,  afterwards,  who 
quotes  this  case,  and  misstates  it  thus :  *To  such  laws  of  the 
the  church  as  have  warrant  in  holy  scripture,  our  law  giv^ 
eth  credence  f  and  cites  Prisot,  mistranslating  ^ancien  scrip- 
ture' into  'holy  scripture';   whereas  Prisot  palpably  says,/ 
*to  suck  laws  as  those  of  holy  church  have  in  ancient  writ^ 
ing,  it  is  proper  for  us  to  give  credence;'   to  wit,  to  theilr' 
ancient  written  laws.    This  was  in  1613,  a  century  and  a 
half  after  the  dictum  of  Prisot.  Wingate,  in  1658,  erects 
this  false  translation  into  a  maxim  of  the  common  law, 
copying  the  words  of  Finch,  but  citing  Prisot.    Wingate, 
max.  3,  and  Bhepard,  tit  'religion,'  in  1675,    copies   the 
game  mistranslation,  quoting  the  Year  Book,  Finch  and 
Wingate.    Hale  expresses  it  in  these  words :  'Christianity 
is  parcel  of  the  laws  of  England,'  1  Ventris  293 ;    3  Kebble 
607 ;  but  quotes  no  authority.    By  these  echoings  and  re- 
echoings,  from  one  to  another,  it  had  become  so  established 
in  1728,  that  in  the  case  of  the  King  v.  Woolston,  2  Strange, 
834,  the  court  would  not  suffer  it  to  be  debated  whether 
to  write  against  Christianity  was  punishable  in  the  tem- 
poral courts  at  common  law.  Wood,  therefore,  409,  ven- 
tures still  to  vary  the  phrase,  and  say  'that  all  blasphemy 
and  profaneness  are  offenses  by  the  common    law,'    and 
cites  2  Strange;  then  Blackstone,  in  1763,  IV.  59,  repeats 


448  BLASPHEMY 


the  words  of  Hale,  that  'Christianity  is  part  of  the  com- 
mon law  of  England/  citing  Ventris  and  Strange;  and 
finally  Lord  Mansfield,  with  a  little  qualification,  in 
Evans'  case,  in  1767,  says  that  'the  essential  principles 
of  revealed  religion  are  parts  of  the  common  law,'  thus 
engnlphing  Bible,  testament  and  all  into  the  common  law, 
without  citing  any  authority.  And  thus  we  find  this  chain 
of  authorities  hanging,  link  by  link,  one  upon  another,  and 
all  ultimately  upon  one  and  the  same  hook,  and  that  a 
mistranslation  of  the  words  'ancien  scripture,'  used  by 
Prisot.  Finch  quotes  Prisot ;  Wingate  does  the  same ;  Shep- 
pard  quotes  Prisot,  Finch,  and  Wingate;  Hale  cites  no- 
body. The  court,  in  Woolston's  case,  cites  Hale.  Wood 
cites  Woolston's  case;  Blackstone  quotes  Woolston's  case 
and  Hale;  and  Lord  Mansfield,  like  Hale,  ventures  it  on 
his  own  authority.  Here  I  might  defy  the  best  read  lawyer 
to  produce  another  scrip  of  authority  for  this  judiciary 
forgery;  and  I  might  go  on  further  to  show  how  some  of 
the  Anglo-Saxon  priests  interpolated  into  the  text  of  Al- 
fred's laws,  the  20th,  21st,  22d,  and  23d  chapters  of  Exodus, 
and  the  15th  of  the  Acts  of  the  Apostles,  from  the  23d  to 
the  29th  verses.  But  this  would  lead  my  pen  and  your 
patience  too  far.  What  a  conspiracy  this,  between  church 
and  state!!  Sing  tantararara,  rogues  all;  rogues  all; 
sing  tantararara,  rogues  all!"^* 

More  potent  as  a  binding  authority  than  all  of  these  is 
the  oflScial  declaration  of  the  United  States  under  the 
treaty-making  power. 

This  is  shown  by  a  ''Treaty  of  Peace  and  Friendship, 
between  the  United  States  of  America  and  the  Bey  and 
subjects  of  Tripoli  of  Barbary,"  communicated  to  the  Sen- 
ate May  26,  1797.^^ 

"Article  2  [of  this  Treaty] :  As  the  government  of  the 
United  States  of  America  is  not  in  any  sense  founded  on 
the  Christia/n  Religion^  as  it  has  in  itself  no  character  of  en- 
mity against  the  laws,  religions,  or  tranquillity  of  Mussul- 

"See  Appendix  to  Cooper's  Law  Libel,  p.  82;  Jefferson's  Works,  v.  4, 
pp.  397-398 ;  Remsberg's  Six  Historic  Americans,  p.  83.  In  sending 
a  copy  of  the  Cartwright  letter  to  Cooper,  some  revisions  were  made. 

"American  State  Papers,  Class  I,  Foreign  Relations,  vol.  2,  p.  18; 
United  States  Statutes  at  Large,  vol.  8,  Foreign  Treaties,  p.  154. 


CHRISTIANITY     AND     THE    LAW  440 

mans;  and  as  the  said  states  never  entered  into  any  war, 
or  act  of  hostility  against  any  Mahometan  nation,  it  is  de- 
clared by  the  parties,  that  no  pretext,  arising  from  reli- 
gious opinions,  shall  ever  produce  an  interruption  of  the 
harmony  existing  between  the  two  countries."  Dr.  Philip 
Schaff  of  Union  Theological  Seminary,  N.  Y.,  says  that 
he  learned  "from  Dr.  Francis  Wharton  that  the  treaty  was 
framed  by  an  ex-Congregational  clergyman"^*  and  not  by 
irreligious  men. 

Article  6  of  the  U.  S.  Constitution  provides:  "All 
treaties  made,  or  which  shall  be  made,  under  the  authority 
of  the  United  States,  shall  be  the  supreme  law  of  the  land ; 
and  the  judges  of  every  state  shall  be  bound  thereby,  any- 
thing in  the  constitution  or  laws  of  any  state  to  the  con- 
trary notwithstanding." 

President  Jefferson  refused  to  issue  a  thanksgiving 
proclamation  because  he  regarded  "the  government  of  the 
United  States  as  interdicted  by  the  Constitution  from  inter- 
meddling with  religious  institutions,  their  doctrines,  dis- 
cipline or  exercises." 

In  Ohio  the  Supreme  Court  had  before  it  a  question  as 
to  the  validity  of  a  deed  executed  and  delivered  on  Sunday. 
The  court  accepted  as  good  English  law  the  rule  that  the 
Christian  religion  is  part  of  the  common  law.  After  quot- 
ing the  constitutional  guarantee  for  religious  liberty,  the 
court  said:  "It  follows  that  neither  Christianity  or  any 
other  system  of  religion  is  a  part  of  the  law  of  this  state. 
We  sometimes  hear  it  said  that  all  religions  are  tolerated 
in  Ohio;  but  the  expression  is  not  strictly  accurate;  much 
less  accurate  is  it  to  say  that  one  religion  is  a  part  of  our 
law  and  that  all  others  are  only  tolerated.  It  is  not  by 
mere  toleration  that  every  individual  is  protected  in  his 
belief  or  disbelief.  He  reposes  not  upon  the  leniency  of 
government  or  liberality  of  any  class  or  sect  of  men,  but 
upon  his  natural  indefeasible  rightsi  of  conscience."  ^^ 

"Those  who  make  this  assertion  [that  Christianity  is 
part  of  the  law]  can  hardly  be  serious,  and  intend  the  real 
import  of  their  language.  If  Christianity  is  a  law  of  the 

"Church  and  State  in  the  United  States,      p.  41,  note  2. 
"  Bloom  V.  Richards,  2  Ohio  St.  390. 


450  BLASPHEMY 

State  like  every  other  law,  it  must  have  a  sanction.  Ade- 
quate penalties  must  be  provided  to  enforce  obedience  to 
all  its  requirements  and  precepts.  No  one  seriously  con- 
tends for  any  such  doctrine  in  this  country,  or,  I  might  al- 
most say,  in  this  age  of  the  world.  The  only  foundation — 
rather,  the  only  excuse — for  the  proposition  that  Christian- 
ity is  part  of  the  law  of  this  country  is  the  fact  that  it  is 
a  Christian  country,  and  that  its  constitutions  and  laws 
are  made  by  a  Christian  people."^^ 

It  is  interesting  to  note  that  a  recent  decision  of  the 
House  of  Lords  goes  very  far  in  this  same  direction,  but 
under  very  great  difficulty.  In  the  face  of  the  admission 
that  a  mere  denial  of  any  part  of  Christianity  has  been 
very  often  declared  to  be  blasphemy,  it  is  now  held  that 
this  was  not  a  correct  conception  of  the  law  "at  any  time." 
Likewise  the  oft  repeated  formula  that  Christianity  is  part 
of  the  law  has  been  deprived  of  about  all  practical  meaning. 
Those  interested  in  this  latest  English  development  will 
wish  to  read  a  keen  review  of  the  situation  by  Dean  R.  W. 
Lee,  entitled  "The  Law  of  Blasphemy."^^  After  reading 
that  very  penetrating  analysis  one  should  read  the  decision 
of  the  House  of  Lords,  which  provoked  it.^^  Our  American 
courts  can  easily  avoid  a  similar  embarrassment.  To  this 
end  we  need  only  to  rely  upon  the  common  sense  meaning 
and  the  historical  interpretation  of  our  constitutional  guar- 
antees of  religious  and  intellectual  liberty  Thus  we  must 
come  more  directly  and  more  conclusively  to  the  result  that 
Christianity  can  bear  no  legal  relationship  to  our  laws  and 
that  therefore  no  prosecution  can  be  here  maintained  to 
punish  blasphemy  in  any  of  its  aspects. 

"Board  of  Education  v.  Minor  23  Ohio  St.  211;  13  Amer.  Rep.  233. 

State  V.  Bott,  31  La.  Ann.  663;  33  Amer.  Rep.  224. 
"  Michigan  Lcrw  Review,  v.  16,  pp.  149-157,  Jan.  1918. 
"•Bowman  v.  Secular  Society.  Ltd.,  Law  Reports,  Appeal  Cases,  Part 

IV,  pp.  406-478.    1917. 


STATE  OF  ILLINOIS. 

COUNTY  COURT  FOR  LAKE  COUNTY. 


People  of  Illinois 

vs. 

Michael  X.  Mockus. 


( The  defendant  was  arrested  on  a  charge  of  blasphemy^ 
alleged  to  have  been  committed  early  in  1917,  at  Waukegan, 
111.  The  information  charged  that  in  a  public  lecture  the 
defendant  had  defamed  Jesus,  his  Mother  and  the  Bible. 
The  defendant,  by  his  attorney,  made  a  motion  to  quash 
the  information  upon  the  ground  that  various  American 
constitutional  guarantees  had  annulled  the  common-law 
crime  of  blasphemy.  Judge  Perry  L.  Persons  sustained 
the  motion  in  a  written  opinion  filed  March  3,  1917.  The 
following  is  Judge  Persons  opinion  from  Waukegan  Daily 
(;a;^e«e,  March  3,  1917.) 

(Not  satisfied  with  this  termination  of  the  case  the 
prosecuting  attorney  secured  an  indictment  on  the  same 
facts.  The  same  motion  was  made  before  Judge  Edwards 
presiding  in  the  Circuit  Court  for  Lake  County.  Judge 
Claire  C.  Edwards  again  sustained  the  motion.  He  filed 
no  written  opinion.  In  both  cases  the  argument  covered  a 
much  wider  scope  than  that  presented  in  Judge  Persons^ 
opinion.— THEODORE  SCHROEDER.) 


"This  motion,  while  admitting  for  the  purpose  of  the 
argument  the  allegations  stated  in  the  information,  ques- 
tions the  sufficiency  in  law  of  the  information  in  this  case 
as  now  amended,  by  which  the  Defendant  Mockus,  is 
charged  with  the  offense  of  blasphemy,  so  called.     It  is 

451 


452  BLxVSPHEMY 


conceded  that  no  legislative  inhibition  against  blasphemy 
exists  in  this  state;  that  this  information  is  based  on  the 
common-law  of  England  in  force  in  so  far  as  not  abrogated 
by  constitutional  limitation  or  statute;  that  in  this  state 
no  governmental  or  state  religion  exists  as  such;  that  the 
separation  of  church  and  state  is  absolute;  and  that  this 
case  both  in  the  charge  made  and  as  to  the  facts  alleged,  is 
without  a  precedent  in  our  Appellate  Courts  and  Supreme 
Court. 

^^The  court  has  carefully  considered  the  exhaustive 
argument  of  the  defense  and  the  able  reply  of  the  assistant 
state's  attorney,  and  the  very  nature  of  the  offense  charged- 
involves  the  consideration  by  a  court  of  the  question  of 
religion  in  its  relation,  if  any,  to  the  commonwealth,  and 
I  have  been  aided  in  arriving  at  my  conclusion  as  to  the 
merits  of  this  motion  by  certain  expressions  of  our  Su- 
preme Court  in  its  opinion,  in  the  case  of  the  People  vs. 
Board  of  Education,  245  Illinois;  the  court  says  on  page 
340,  concerning  the  religious  freedom  enjoyed  by  all 
citizens  of  the  commonwealth:  ^The  free  enjoyment  of 
religious  worship  includes  freedom  not  to  worship.'  And 
again  on  page  341,  reference  is  made  to  an  act  at  one  time 
pending  in  the  Virginia  legislature.  In  the  very  nature 
of  things  religion  or  the  duty  we  owe  the  Creator  is  not 
within  the  cognizance  of  civil  magistrate  ^To  intrude  his 
powers  into  the  field  of  opinion  and  to  restrain  the  pro- 
fession or  propagation  of  principles  on  the  supposition  of 
their  ill  tendency  is  a  dangerous  fallacy  which  at  once 
destroys  all  religious  liberty.'  And  again:  ^it  is  time 
enough  for  the  rightful  purpose  of  civil  government  for  its 
officers  to  interfere  when  principals  break  out  into  overt 
acts  against  peace  and  good  order.' 

"  ^In  these  two  sentences,'  says  the  Supreme  Court  of 
the  United  States,  'is  found  the  true  distinction  between 
what  properly  belongs  to  the  church  and  what  to  the  state/ 
Again  on  page  349,  the  same  opinion  of  our  Supreme  Court 
continues:  ^It  is  true  that  this  is  a  Christian  state;  the"^ 
great  majority  of  its  people  adhere  to  the  Christian  religion  ^ 
*     *     *     But  the  law  knows  no  distinction  between  the^y 


MICHAEL  X.  MOCKUS  453 


Pagan,  the  Protestant  and  the  Catholic.  All  are  citizens. 
Their  civil  rights  are  precisely  equal.  The  law  cannot  see 
the  religious  differences  because  the  constitution  has  defin- 
itely and  completely  excluded  religion  from  the  law's  con- 
templation in  considering  men's  rights.  In  considering 
men's  rights  there  can  be  no  distinction  based  on  religion. 
*  *  *  All  sects,  religious  or  even  anti-religious,  stand  on 
an  equal  footing;'  again  on  page  346  the  court  says:  ^the 
importance  of  men's  religious  opinion  and  differences  is 
for  their  own  and  not  for  a  court's  determination;  with 
such  differences  whether  important  or  unimportant  the 
courts  or  governments  have  no  right  to  interfere.  It  is  not 
a  question  to  be  determined  by  a  court  *  *  *  what 
religion  or  what  sect  is  right.  That  is  not  a  judicial 
question.  All  stand  equal  before  the  law,  the  Protestant, 
Catholic,  Mormon,  Mohammedan,  the  Jew,  the  Free 
Thinker,  the  Atheist.  Whatever  may  be  the  view  of  the 
majority  of  the  people  the  court  has  no  right  and  the 
majority  has  no  right  to  force  that  view  upon  the  minority, 
however  small.'  If  our  Supreme  Court  is  correct,  would 
not  the  Jew,  lawfully,  honestly  and  freely  expressing  his 
opinion  that  Christ  was  an  Imposter,  in  the  language  of 
this  opinion  subject  him  to  the  same  charge  of  blasphemy 
now  against  this  defendant?  The  exact  offense  with  which 
the  defendant  is  charged  in  this  case  is  that  he  spoke  cer 
tain  blasphemous  words,  which  I  do  not  care  to  repeat, 
maligning  Jesus  Christ,  and  notwithstanding  his  conduct 
in  so  doing,  reprehensible  as  it  may  seem  to  many  of  us  in 
the  use  of  the  scurrilous  language  attributed  to  him,  under 
the  law,  in  our  judgment,  the  defendant  cannot  be  held  for 
trial  on  the  charge  of  blasphemy  standing  alone,  unaccom- 
panied by  acts  of  violence  or  other  breach  of  the  peace. 
From  my  earliest  recollection,  my  environment  has  been 
such  that  I  cannot  refrain  from  saying  that  I  regret  that 
this  is  true,  but  the  common  law  offense  of  blasphemy 
under  the  law  in  this  state  is  not  an  offense  subject  to 
punishment  or  prosecution,  and  the  judgment  of  the  court 
is  that  the  motion  to  quash  is  sustained,  the  defendant  dis- 
charged, and  the  sureties  on  his  bond  released." 


MOCKUS  ONCE  MORE. 

From :  The  Truth  Meeker,  Oct.  12,  1918. 

There  seems  no  immediate  danger  that  the  Mockus  case 
will  become  ancient  history,  and  yet  it  is  dragging  along 
over  so  much  time  that  it  becomes  almost  necessary  to 
recapitulate  past  events  to  make  the  new  ones  intelligible. 

Mockus  was  convicted  of  blasphemy  in  the  police  court 
of  Waterbury,  Conn.,  in  the  summer  of  1916.  An  appeal 
was  taken  to  the  District  Court.  At  the  first  trial  the  jury 
disagreed.  At  that  time  it  was  offered  that  if  the  defend- 
an  would  enter  a  plea  of  guilty  he  might  go  at  liberty  on 
a  suspended  sentence.  He  declined  this  offer  wishing  to 
try  out  the  question  of  his  right  to  continue  his  Free- 
thought  lectures  unmolested.  At  the  next  trial  Theodore 
Schroeder  appeared  as  associate  counsel,  for  the  defence 
and  as  representing  the  Free  Speech  League  and  the  Free- 
thinkers of  America.  Constitutional  questions  were  pre- 
sented during  the  whole  day's  session  of  court.  Then  the 
ease  was  continued  that  the  lengthy  argument  might  be 
submitted  in  writing.  Numerous  continuances  followed. 
In  the  meantime  Mr.  Schroeder  has  been  writing  a  450- 
page  book  on  the  constitutional  rights  of  Freethinkers  to 
speak  their  minds. 

In  the  course  of  time,  the  Hon.  F.  M.  Peasley  succeeded 
Judge  Eeeves,  who  had  heard  the  constitutional  argu- 
ment. Judge  Peasley  overruled  the  demurrer  by  which 
the  constitutional  questions  were  raised.  He  overruled 
Mr.  Schroeder's  argument,  frankly  admitting  that  he  had 
not  read  it,  and  explicitly  stating  that  he  would  not  read 
it,  although  he  considered  the  case  of  great  importance, 
and  in  spite  of  the  fact  that  he  was  sure  the  argument 
would  be  interesting.  To  many  this  will  seem  a  rather 
extraordinary  position  for  a  judge  to  assume. 

During  the  excitement  created  by  Mr.  Schroeder's  long 
constitutional  argument,  made  back  in  1916,  the  defend- 
ant seems  to  have  been  quite  forgotten,  and  so  he  was 
allowed  to  leave  without  being  required  to  give  a  new 

454 


MOCKUS  ONCE  MORE  455 

bail-bond  for  his  subsequent  appearance  in  court.  Not- 
withstanding this,  he  was  anxious  to  have  a  test  case  made 
and  was  so  far  willing  to  take  chances  on  the  results.  For 
about  two  years,  while  going  about  his  lecture  work,  he 
has  at  regular  intervals  reported  his  whereabouts  to  his 
attorneys,  so  that  he  could  be  notified  if  wanted  for  the 
trial.  In  this  manner  he  was  last  heard  from  in  the  early 
part  of  this  summer  (1918). 

His  case  was  to  be  called  for  trial  Sept.  24,  but  the 
defendant  did  not  appear.  His  attorneys  reported  that 
letters  sent  to  his  last  known  address  had  been  returned 
undelivered.  Whether  he  is  sick,  dead  or  over  in  France  is 
not  known.  The  prosecutor  agreed  to  an  extension  of  time 
for  Mockus  to  report. 

What  will  happen  next?  M!r.  Mockus  may  in  due  time 
report  to  his  attorneys  and  have  a  new  date  fixed  for  his 
surrender  and  trial.  If  not  then  a  requisition  may  be  is- 
sued and  the  defendant  if  found  in  another  state  may  be 
arrested  and  with  the  approval  of  the  governor  may  be  re- 
turned to  Connecticut.  Here  an  interesting  fight  may 
occur.  First  to  induce  the  governor  not  to  give  the  defend- 
ant up  to  the  Connecticut  authorities.  This  might  be 
based  upon  constitutional  grounds  and  the  seeming  dif- 
ficulty of  getting  a  fair  trial  before  Judge  Peasley. 

Again:  The  argument  before  Judge  Peasley  raised 
several  questions  of  law  under  the  constitution  of  the 
United  States.  This  may  furnish  ground  for  going  into 
the  Federal  Court  and  making  a  test  case  there  on  these 
Federal  questions.  In  this  event  an  appeal  will  lie  to  the 
U.  S.  Supreme  Court.  After  that,  if  all  fails,  Mockus  can 
be  brought  back  to  Connecticut  for  trial,  leaving  only  the 
state  constitution  and  statutes  to  be  interpreted.  Evi- 
dently if  Mockus  is  alive  and  allows  his  attorneys  to  go 
through  all  these  devious  pathways,  then  the  gaiety  of  the 
nation  will  be  occasionally  refreshed  for  some  years  to 
come.  If  Mockus  is  alive  it  is  hoped  he  will  inform  his 
attorneys,  if  any  effort  is  made  to  compel  his  return  to 
Connecticut. 

In  the  meantime  Mr.  Schroeder  is  going  steadily  on 
with  his  preparation.    Four  hundred  and  fifty  pages  of  the 


456  BLASPHEMY 


argument  is  in  type  and  a  contract  for  printing  this  first 
volume  has  just  been  signed.  The  second  volume  will  deal 
more  especially  with  questions  arising  under  the  Federal 
constitution.  The  numerous  installments  of  the  argument 
in  The  Truth  Seeker  and  other  journals,  and  conversa- 
tions had  with  Mr.  Schroeder,  gives  reason  to  believe  that 
this  discussion  of  blasphemy  laws  Avill  be  without  precedent 
both  as  to  its  length  and  its  extraordinary  character  and 
contents. 


14  DAY  USE 

RETURN  TO  DESK  FROM  WHICH  BORROWED 

LOAN  DEPT. 

This  book  is  due  on  the  last  date  stamped  below,  or 

on  the  date  to  which  renewed. 

Renewed  books  are  subject  to  immediate  recall. 


REC'D  LD 


REC'D  LD 


NOV  2 


§4 


9lan'630 


RSC-D  LO 


SEP  15 '64 -11  AM 


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