1. Introduction
The crime of blasphemy is still another example of the large number of legal doctrines during the first half century of the Republic that served in various areas to silence anti-establishment speech. The criminalization of blasphemy, of course, involves very different societal values and political policies than those underlying criminal libel and allied doctrines or the circulation of anti-slavery materials. Blasphemy does not involve issues in which security of the state is perceived to be at stake, at least not directly at stake. However, as with criminal libel and the anti-abolition statutes, it rests at least in part on similar concerns of anticipating and preventing breaches of the peace.
Further, the blasphemy cases tested the scope of the state constitutional guaranties of freedom of religion and free speech in very much the same way as the criminal libel cases and the anti-abolition statutes tested the perimeters of the state constitutional protections of freedom of speech and press.
The criminalization of blasphemy was a firmly embedded feature of state jurisprudence that persisted until well into the20th century before finally suc- cumbing to modern constitutional decisions vigorously expanding the reach of the federal constitutional guaranty of freedom of religion and free speech.
As such, it has received its fair share of academic discussion as a feature of the
American law.1However, it also deserves attention along with the anti-slavery statutes as companion legal doctrines reflecting American societal suppres- sion of anti-establishment speech. Both help explain the near-universal acceptance of the criminal libel during the earlier decades of this period.
Although not involving political speech, the common-law crime of blas- phemy and the numerous criminal statutes codifying the common law of blasphemy that were accepted throughout the nation in the period under discussion, thus, provide still a further illustration of breadth of the criminal remedies during the period available to punish dissenting speech.
It also provides a striking constitutional parallel to the experience with crim- inal libel. The existence of the freedom of religion and free speech provisions in almost all contemporary state Constitutions and in the First Amendment to the federal Constitution2were of no avail. They provided no more shelter for defendants accused of blasphemy (or for that matter, defendants accused of violation of its related doctrine, the so-called Blue Laws prohibiting certain business activities on Sundays) than did the comparable provisions assuring freedom of speech and press for persons accused of criminal libel.
2. The English Criminal Common Law of Blasphemy
The twin principles that “Christianity is part of the common law” and that blasphemy was criminal were accepted parts of the English common law.
InRex v. Taylorin1676, Lord Chief Justice Hale in a much quoted passage denounced the defendant, saying:
Such kind of wicked blasphemous words were not only an offence to God and religion, but a crime against laws, State, and Government, and
1 See generallyLeonard W. Levy,Blasphemy(1993) (hereinafter Levy,Blasphemy);Blasphemy in Massachusetts: Freedom of Conscience and the Abner Kneeland Case: A Documentary Record (Leonard W. Levy ed.1973) (hereinafter Levy, Blasphemy in Massachusetts); Banner, When Christianity Was Part of the Common Law, 16 Law & Hist. Rev. 27 (1998) (hereinafter Banner);2Works of James Wilson 425(J. Andrews ed.1896);2 Zephaniah Swift,System of the Laws of Connecticut321(J. Byrne1795) (hereinafter Swift); Joseph Story, Christianity a Part of the Common Law, Am. Jurist9(1833) (hereinafter Story, Christianity); Note, Blasphemy,70 Colum. L. Rev.694(1970); Anno, Validity of Blasphemy Statutes or Ordinances,41A.L.R.3d519 (1972).
2 Readers will recall that until1833, it was not clear whether the provisions of the Bill of Rights applied to the states. Then inBarron v. Baltimore, the Supreme Court held that they had no application.32U.S.243(1833). This was the law for100years. Then, the Supreme Court reversed ground, relying on the adoption of the14th Amendment. InGitlow v. Peoplein1925, it held the states bound by the federal provision on freedom of speech and inCantwell v. Connecticutin 1940bound by the federal provision on freedom of religion. Gitlow v. People,268U.S.652(1925);
Cantwell v. Connecticut,310U.S.296(1940).
Criminalization of Blasphemy 321 therefore punishable . . . ; for to say religion is a cheat, is to dis- solve all those obligations whereby the civil societies are preserved, and . . . Christianity is parcel of the laws of England; and therefore to reproach the Christian religion is to speak in subversion of the law.3 Followed in Rex v. Woolston,4 the doctrine became firmly established as English law. In the chapter of offences against God and religion in hisCom- mentaries, Blackstone, thus, summarizes:
blasphemy against the Almighty, by denying his being or providence;
or by contumacious reproaches of our saviour Christ. Whither also may be referred all profane scoffing at the holy scripture or exposing it to contempt and ridicule. These are offenses punishable at common law by fine and imprisonment, or other infamous corporal punishment for christianity is part of the laws of England.5
3. Blasphemy Law in the Colonies and the New Republic
The English common law, including common-law blasphemy, formed part of the legal system of the13Colonies. However, the Colonial law of blasphemy soon outgrew its venerable common-law roots. As early as1700in Virginia and Pennsylvania and1702in Maryland, the Colonies began to enact statutes criminalizing blasphemy. Although the Pennsylvania statute was mild, the Maryland statute provided for savage punishments.6Other colonies followed suit. Blasphemy law – both common-law and statutory – was an established part of the Colonial legal system at the time of the Revolution.7
3 Rex v. Taylor,1Vent.293,86Eng. Rep.189(K.B.1676). For other cases echoing and re-echoing this principle,seeG. Nokes,History of the Crime of Blasphemy(1928).
4 Rex v. Woolston,94Eng. Rep.655(K.B.1729).
5 4William Blackstone,Commentaries on the Laws of England59(1769repr.1992) (hereinafter Blackstone). When the American courts wanted an authoritative reference to the English common law of blasphemy, they invariably turned to Blackstone.See, e.g. Updegraph v. Commonwealth, 11Serg. & Rawle394,1824Pa. LEXIS85, at∗7(1824); Commonwealth v. Kneeland.37Mass.
(20Pick.)206,213,1838Mass. LEXIS35(1838). Newspapers did much the same.SeeProvidence Patriot & Columbian Phoenix, Dec.15,1827(blasphemy in the English common law defined by Blackstone, pointing to the quotation in the text).
6 Penn. Laws of1700,1Sm. L.6enforcedin Updegraph v. Commonwealth,11Serg. & Rawle394, 1824Pa. LEXIS85(1824); Md. Laws1723, collected inThe Laws of the Province of Maryland (J. Cushing, compiler1978).
7 At the same time, Americans appeared to be interested in the English law of blasphemy. Thus, the American press widely reported the conviction of Mr. Carlisle, a London bookseller and Deist, of the crime of blasphemy in publishingPaine’s Age of Reason(of which there were said to be20,000 copies scattered over the country). After indictment, he was confined in King’s Bench Prison for want of sureties for his £1,000bail. This story appeared in the New BedfordMercury, Dec.10, 1819; NewburyportHerald, Dec.7,1819; andColumbian Centinel, Dec.4,1819. A related account
With the Revolution, as readers have learned,11of the states had adopted statutes receiving their Colonial law including the law of blasphemy as well as the law of criminal libel, whether resting on common law or Colonial statute, as the law of the new state. Following the pattern of the Colonial statutes criminalizing blasphemy, codification of the law of blasphemy continued after the Revolution, with statutes enacted in Massachusetts in1782and Rhode Island in1798. Criminalization of blasphemy, increasingly based on statute rather than on the English and Colonial common law,8 was an established part of the law of the land. It comfortably coexisted with the state constitutional guarantees of freedom of religion and free speech.
There was isolated and ineffective dissent. Apparently alone at the time, St. George Tucker’s discussion of blasphemy in his popular edition of Black- stone’sCommentariesnot only recognized that the adoption by Virginia of its1776Bill of Rights containing a provision protecting freedom of religion introduced a serious constitutional question, but speculated whether it had not in fact abolished “blasphemy as a civil offense.”9
The doctrine of blasphemy is closely associated with a companion maxim that “Christianity is part and parcel of the common law.”10As points out, that maxim borrowed from Blackstone was heard so often that a commentator writing in1902could refer to the crime of blasphemy resting on the maxim as a matter “decided over and over again.”11 However, as Justice Story pointed out, the legal significance of the maxim in the19th century was limited, aside
appears in theConnecticut Courantof Nov.30,1819, reprinting a story in New YorkEvening Post headed as London, Oct.15, upholding the result. The defendant was ultimately convicted and sentenced to three years in jail and a fine of £1,500in Nov.1821.SeeH. Bonner,Penalties upon Opinion39–43(1913).See alsoa report on the1820indictment for “seditious and blasphemous libel” of Joseph Swann, one of leaders of the so-called Macclesfield riots; no report is available indicating whether a trial ensued and, if so, the outcome of the trial.
8 The distinction between the common law and statutory foundations of the doctrine is vital.
The common law and the maxim that “Christianity is part of the common law” with which it was associated became irrelevant when the prosecution was based on the statute. Whatever the relation between Christianity and the common law, the statute was now determinative.
9 In his1803edition containing his editorial notes to the Constitution and laws of the United States and Virginia, St. George Tucker annotates the passage quoted in the text. He goes on to assert:
“This, as a civil offence, seems to have been abolished by the provisions contained in the bill of rights, etc., together with the other offenses against religion already noticed in this chapter, referring to a prior note listing the U.S. Constitution and Bill of Rights provisions and the Virginia constitutional and statutory references dealing with freedom of religion.5St. George Tucker, Blackstone’s Commentaries with Notesat59,59n,44n (1803repr.1969) (hereinafter Tucker).
10 Even the Supreme Court paid its respects to the dictum.SeeVidal v. Philadelphia,43U.S.127, 198,2How.127,198(1844) (the maxim recognized as part of the common law of Pennsylvania).
See generallyJames McClellan,Joseph Story and the American Constitution118–159(1971).
11 Banner, note1, at27,citingArthur A. Barber, Christianity and the Common Law,14The Green Bag267(1902).
Criminalization of Blasphemy 323 from its role as the foundation of blasphemy law. Thus, in his opinion in Vidal, Justice Story stated:
We are compelled to admit, that although Christianity be a part of the common law of the state [Pennsylvania], yet it is so in this qualified sense – that its divine origin and truth are admitted – and therefore, it is not to be maliciously and openly reviled and blasphemed against, to the annoyance of believers or the injury of the public.12
Whatever the limitations in the scope of the maxim, it plays little role in our discussion. Although the importance of the maxim as the foundation of the common law of blasphemy is unchallenged, we are concerned with blasphemy, and particularly its development as a statutory doctrine, not with the maxim. As for blasphemy, the leading commentators of the period – Blackstone, James Wilson, Zephaniah Swift, as well as Story – all agreed that blasphemy was a common-law crime.13 Similarly, as we will see, Chancel- lor Kent similarly recognized blasphemy as a common-law crime in New York. His decision to this effect in theRugglescase was followed by courts in Alabama, Arkansas, Delaware, Pennsylvania, North Carolina, South Car- olina, and Tennessee.
However accepted the doctrine, and notwithstanding the celebrated19th- century cases upholding the doctrine involving some of the leading jurists of the period, Levy has sniffed at what he perceives as its fading significance.
Thus, Levy observes that there were only ten prosecutions in the entire 18th century in contrast to the much more vigorous enforcement during the previous century.14 In addition, the declining level of statutory punishment in the event of violation in some jurisdictions provides further support for the view that the societal evaluation of the seriousness of the crime was substantially abating. Thus, the savage penalties provided in the early18th- century Maryland statute described above contrast sharply with the milder penalties in the later statutes.15
12 Vidal v. Philadelphia,43U.S. (2How.)127,198(1844),citingUpdegraph v. Commonwealth,11 Serg. & Rawle394,1824Pa. LEXIS85(1824).
13 2Works of James Wilson425(J. Andrews ed.1896);2Swift, note1, at321; Story, Christianity, note1.
14 SeeLevy,Blasphemy, note1, at264–267. In addition to Levy’s extensive collection of blasphemy decisions, there appears to be at least one additional case. Moses Goddard was reported to have been convicted for blasphemy in Springfield, Vt., in early Oct.1790. Springfield, Vt.,Western Star, Oct.12,1790.
15 A1788newspaper account of the visit to Philadelphia of the “famous, or rather infamous,Jemimah Wilkinson, a person who professes that she is our Lord and Savior Jesus Christ came [sic] into our world a second time” illustrates a possible change of community attitude. However,seevery different attitudes reportedinfrain notes22and25.
Notwithstanding the weight of this view, one must recognize that dur- ing this period the blasphemy law continued to be enforced. It continued as a living reality, far from the suggested image of a legal fossil. In fact, it seems a vigorous a part of the jurisprudence comparable to the experience in the preceding century. Although 18th-century blasphemy prosecutions including two after the Revolution16 may have continued at a slower pace than in the 17th century, blasphemy prosecutions in the first half of the 19th century did continue and in significant numbers.17 Furthermore, the states continued to enact statutes criminalizing the practice.18Prosecutions, some of them attracting considerable note, not only continued but without apparent decline. Thus, building on the work of earlier scholars, the author has identified no fewer than20blasphemy cases in the first half of the19th century,19 or twice as many as the number reported by Levy for the entire
The newspaper commented: “Had Jemimah Wilkinson made her appearance a century or two ago, she would then have been capitually [sic] punished, but to the honor of the present age, . . . the mildness of our laws and the good sense of the people are such that no injury or even insult has been offered to any of them”New Jersey Journal, May28,1788.
16 These include State v. Wilkinson (N.J.1788) (failure to prosecute),New Jersey Journal, May28, 1788; and defendant name unavailable (Dauphin Cty., Pa. 1799) (conviction), cited by Levy, Blasphemy, note1, at407.
17 Banner’s collection of the cases may be found in Banner, note1, at31–32n.
18 Mass. Acts and Resolves, Act of1782ch.8(July3,1782); R.I. Laws1798, sec.33.
19 The20 19th-century cases include four prominent cases reported in the official law reports that dominate the literature: People v. Ruggles,8Johns.290,1811N.Y. LEXIS124(Sup. Ct.1811) (Kent, Ch. J.) (conviction); Updegraph v. Commonwealth,11Serg. & Rawle394(Pa.1824),1824Pa.
LEXIS85(1824) (conviction reversed); Commonwealth v. Kneeland,37Mass. (20Pick.)206,1838 Mass. LEXIS35, (1838) (conviction); State v. Chandler,2Del. (Harr.)553,1837Del. LEXIS63 (1837) (conviction). In each of these, the defendant was convicted in the trial court.
In addition, there are press and other reports of11convictions for blasphemy and five instances of acquittals or jury disagreement of the following defendants: Commonwealth v. Eli Hamil- ton (Mass.1808) (pillory for four hours and costs and imprisonment until sentence performed);
Commonwealth v. Caleb Jephtherson (Mass.1811) (pillory for one and one-half hours); Common- wealth v. Filland,American Advocate and Kennebec Advertiser, Sept.19,1818(Mass.1818); State v. Benjamin R. Allen (Conn.1818) (imprisonment of12months),Massachusetts Spy or Worcester Gazette, Oct.21,1818; Commonwealth v. Murray, (Mayor’s Court, Philadelphia,1818),National Messenger, Nov.17,1818; ProvidenceGazette, Nov.28,1818, FranklinGazette, Nov.21,1818, reported in Updegraph v. Commonwealth,11Serg. & Rawle394,404,1824Pa. LEXIS85(1824);
People v. John W. Hinckley (N.Y.1819) (imprisonment of three months),New-York Columbian, Sept.1,1819; People v. Oliver Story (N.Y.1820) (imprisonment of four months),Berkshire Star, July6,1820; Commonwealth v. defendant name unavailable (Pa.1822),Farmers’ Cabinet, Mar.
16,1822; State v. William Cannon (Conn.1826) (imprisonment of six months and $100fine), American Mercury, Aug.29,1826; Commonwealth v. Sharp (Pa.1829), New BedfordMercury, Feb 2,1829; State v. Granger (Conn.1829) (conviction), BaltimorePatriot, Sept.9,1829.
The acquittals were Ebenezer Darrow (Vt.1804), WindhamHerald, Oct.11,1804(acquittal by reason of insanity); Lydia Profet (N.Y.1820) (“coloured” fortune teller “pretending to discover” the location of stolen goods),New-England Palladium, Feb.4,1820); State v. Bell,6City Hall Records, N.Y. City (N.Y.1821),3American State Trials558,561(J. Lawson ed.1915) and People v. Porter,2
Criminalization of Blasphemy 325 18th century.20 Furthermore, as will be seen, cases were brought and con- victions obtained and upheld against constitutional challenge until as late as 1941.21
Far from disappearing, civic outrage at episodes of blasphemy still ran at fever pitch in many quarters in the nineteenth century. Thus, in an editorial note entitled “Two Great Toms,” the NewportMercuryin1802bitterly assailed Tom Paine and Thomas Jefferson:
There is no man known in the U. States, who has blasphemed so openly and wickedly as Tom Paine. The Christian would shudder at hearing his expressions repeated. [Noting his selection by Jefferson as “his most favored friend,” the editorial continued] Perhaps the President does not know that Blasphemy is a crime which the laws of Maryland punish severely. First offence, “bored through the tongue and fined20£. sterl. – for the second offence, he would be branded in the forehead with the letter B and fined 40£. sterl. – and for the third offence, suffer death.
Such, people of Maryland, is the respect paid by your President to your laws, and your religion!”22
The very language employed in the press reports of some of the blasphemy cases similarly vividly conveys the serious nature of the offence, at least as seen by some observers at the time. Thus, in the newspaper account of the blasphemy conviction of Filland in Massachusetts in 1818, the editor declined to specify what was actually said. Instead, he reported only that the blasphemy for which Filland was convicted was “perhaps the most horrid ever uttered from the lips of a mortal.”23Similarly, a newspaper report of the blasphemy conviction of Samuel Sharpin Pennsylvania in 1829notes that he was convicted for “expressions . . . too abominable to be published.”24In like fashion, an account of a blasphemy case in New London, Conn., in
Park Crim. Rep.14(1823). The jury disagreement occurred in defendant name unavailable (Mass.
1822),Independent Chronicleand BostonPatriot, May,4,1822.
20 Whether this actually indicates an increase in the rate of blasphemy prosecutions is another matter.
Levy’s collection was a remarkable achievement in the light of the greater barriers to research of the earlier periods of the American experience. These barriers suggest that there were not many more18th-century cases still undiscovered. One must also keep in mind that as late as1750, there were only12papers in all the Colonies in comparison to the239papers in1800.SeeE. Latham, Chronological Tables of American Newspapers, 1690–1820(1972).
21 Oney v. Oklahoma City,120F.2d861(10th Cir.1941) (conviction); Lynch v. City of Muskogee,47 F. Supp.589(E.D. Okla.1942) (conviction).See alsoState v. Mockus,120Me.84,113A.39(1921) (conviction).
22 NewportMercury, Dec.21,1802.
23 Report of Commonwealth v. Filland (Mass.1818),American Advocate and Kennebec Advertiser, Sept.19,1818.
24 Report of Commonwealth v. Sharp (Pa.1829), New BedfordMercury, Feb.2,1829.