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the case of The People vs. Ruggles (8 Johnson's Reports, p. 290), said :
“ The authorities show that blasphemy against God and contumelious reproaches and profane ridicule of Christ or the Holy Scriptures (which are equally treated as blasphemy) are punishable at common law, whether by words or writings. The consequences may be less extensively pernicious in the one case than in the other ; but in both instances the reviling is still an offense because it tends to corrupt the morals of the people and to destroy good order. Such offenses
are treated as affecting the essential interests of civil society.
The free, equal, and undisturbed enjoyment of religious opinion, whatever that may be, and free and decent discussions on any religious subject are granted and secured ; but to revile with malicious and blasphemous contempt the religion professed by almost the whole community is an abuse of that right.
Wicked and malicious words, writings, and actions, which go to vilify those Gospels, continue, as at common law, to be an offense against the public peace and safety."
The Massachusetts case of the Commonwealth vs. Kneeland (20 Pickering, p. 206) was not a case at common law, but under a statute which provided that “if any person shall wilfully blaspheme the holy name of God by denying, cursing, or contumeliously reproaching God, his creation, government, or final judging of the world ; or by cursing or reproaching Jesus Christ or the Holy Ghost; or by cursing or contumeliously reproaching the Holy Word of God," he shall be punished in the manner prescribed. The question before the Supreme Court was whether the language charged in the indictment—and which the jury in the court below found Kneeland to have published—was blasphemy within the meaning of the above statute, and, if so, then whether the statute itself was consistent with the constitution of Massachusetts. This question in both of its branches was answered affirmatively by Chief Justice Shaw, who delivered the opinion of the majority of the Court. The statute, he said, was not "intended to prevent or restrain the formation of any opinions or the profession of any religious sentiments whatever ; but to restrain and punish acts which have a tendency to disturb the public peace.”
Judge Morton in a dissenting opinion, said: " It [the statute] was not intended to punish a denial of the existence of God; but only such a denial when made in a manner calculated to give just offense to others and with a bad intent.” He also said : “ When he [the citizen] engages in the discussion of any subject in the honest pursuit of truth, or endeavors to propagate any opinions which he sincerely entertains, he is covered by the ægis of the constitution ; but when he wantonly and maliciously assails the rights and privileges of others or disturbs the public peace he is the proper subject of punishment.” He held that the instruction to the jury in this case was incorrect, and, hence, that the defendant was entitled to a new trial.
Justice Clayton, of the Supreme Court of Delaware, in the case of The State vs. Chandler (2 Harrington's Reports, p. 553), gives an elaborate opinion as to the question how far and in what sense Christianity is to be deemed a part of the law of the land. We quote as follows from this deliverance :
“ The common law was, as Lord Coke expressed it,
the preserver of the common peace of the land ; and, therefore, we find it punished outrages on, or breaches of the peace of society, and also acts whose tendency was to disturb that peace. .
But, even in England, Christianity was never considered part of the common law, so far as that for a violation of its injunctions, independent of the established laws of man, and without the sanction of any positive act of Parliament made to enforce these injunctions, any man could be drawn to answer in a common law court. [the common law] adapted itself to the religion of the country just so far as was necessary for the peace and safety of civil institutions ; but it took cognizance of offenses against God only where, by their inevitable effects, they became offenses against man and his temporal security.
If in Delaware the people should adopt the Jewish or Mohammedan religion, as they have an unquestion
able right to do, if they prefer it, this Court is bound to take notice of it as their religion and respect it accordingly.
It [the common law] sustained indictments for wantonly and maliciously blaspheming God or the Founder of the Christian religion, because such blasphemy tended to subvert the peace and good order, which it was bound to protect. But it sustained no indictment for a mere sin against God as a common law offense where these objects of its care were not affected.
The common law only punished it [blasphemy] when it tended to create a riot or break the peace in some other way, or subvert the very foundation on which civil society rested. It will be seen that, in our judgment, by the constitution and laws of Delaware the Christian religion is a part of those laws so far that blasphemy against it is punishable while the people prefer it as their religion, and no longer."
The doctrine of Justice Clayton is that, Christianity being the religion which the great mass of the people of Delaware prefer, the courts of that State are bound to treat as an offense against civil society an act of blasphemy against that religion which outrages the sense of decency and is calculated to provoke a breach of the public peace and order. The same doctrine would equally apply, as he distinctly says, if Judaism or Mohammedanism were the religion professed by the people. It is only when acts which are offenses against God
have the character of offenses against the peace and good order of society that they are punishable at common law, and even then they are not punishable as religious offenses, but solely as crimes against society.
The Supreme Court of Ohio, in the case of Bloom vs. Richards (2 Ohio State Reports, p. 387), said :
"Neither Christianity nor any other system of religion is a part of the law of this State. We sometimes hear it stated 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 all others only tolerated.
We have no union of Church and State, nor has our government ever been vested with authority to enforce any religious observance simply because it is religious.
Thus the statute upon which the defendant relies, prohibiting labor on the Sabbath, could not stand for a moment as a law of this State if its sole foundation was the Christian duty of keeping that day holy and its sole motive to enforce the observance of that duty.. We are, then, to regard the statute under consideration as a mere municipal or police regulation, whose validity is neither strengthened nor weakened by the fact that the day of rest which it enjoins is the Sabbath day.”
Two years afterward, the same Court, in the case of McGatrick vs. Wason (4 Ohio State Reports, p. 571), spoke as follows: