Page:The Green Bag (1889–1914), Volume 14.pdf/308

 Christianity and the Common Law. of a moral sense nurtured by its teachings, the protection of this moral sense from out rage by penal sanctions are not in themselves sufficient to justify the maxim of Lord Hale, we may further inquire whether there be any act, in its essential nature an offence against religion, which is nevertheless cognizable by the civil authority and punishable as a crime. We find such an offence in blasphemy, which may be defined as the malicious reviling of God or of religion, contumelious reproach or profane ridicule of the sacred Scriptures.' That this offence is by the common law a crime, has not admitted of a doubt for many generations. The facts before Lord Chief Justice Hale at the time when he framed his much disputed maxim before referred to,J brought up for his determination this specific question, and, in so far as concerns the question then decided, his authority has remained unshaken to the present day. The grounds upon which the learned Chief Justice based his decision were that wicked, blas phemous words were not only an offence to God and to religion, but a crime against the laws and the State, as tending to weaken all moral obligations and thereby to subvert the foundations of civil government. Society has not yet advanced to that stage where government can afford to throw away the protection of religion and stand upon the sole ground of expediency. So long, there fore, as it must depend for its ultimate justification to the popular mind upon a divine sanction, so long must it look back to religion, and in a Christian country to the religion of Christianity, as its starting point. With reason, then, may it be said that what strikes at the root of Christianity or at the truth of religion is not only a menace to the public peace, but a blow aimed at the integ1 Taylor's Case, 1 Vent. 293: s. c. 3 Keb., 607; Rex v. Williams, How. St. Tr., Vol. 26, p. 656; People v. Ruggles, 8 John. (N. Y.), 289. 2 Taylor's Case, supr i.

271

rity of government itself. With reason, therefore, and with perfect justification may a government so constituted punish, in selfdefense, whatever tends to its destruction. A long series of cases in English law have followed and affirmed the principle of this decision. All profane scoffing at the Holy Scriptures, all exposure of them to contempt and ridicule, all attacks upon the broad truths of Christianity, all ridicule of the life and miracles of Christ, all scoffings at his divinity and all utterances calculated to reflect upon his mission and his work are, within the prin ciples of these decisions, blasphemous libels and therefore crimes at the common law.3 The principles of these decisions have been carefully limited not to interfere with differ ences of opinion nor to include within the definition of blasphemy a discussion in good faith upon controverted points. Malice is the essence of the crime, and only when the truths of Christianity itself are threatened will the courts interfere.4 The leading decision in American law upon the subject is by the eminent jurist Kent. Upon a conviction for malicious, wicked and blasphemous utterances calcu lated to reflect upon the divinity of Christ, that judge refused to disturb the verdict, holding that such words uttered with such disposition were at common law a crime. Reviewing the English cases upon the ques tion, he affirms that wicked and malicious words, writings and actions that go to vilify the Christian gospels continue, as at common law, to be an offence against the public peace and safety, as affecting the vital interests of civil society, and tending to the corruption 3 Blackstone's Commentaries, Vol. IV, p. 59; 1 East's Pleas of the Crown, 3; Tremaine's Entries, 225; Rex v. Taylor, I Ventr., 293: 3 Keb., 607; Rex v. Waddington, 1 B. & C, 26; Rex v. Woolston, Raymond 162: 2 Strange, 834; Rex v. Hall, 1 Strange, 4t6; Rex v. Wil liams, How. St. Tr., Vol. 26, p. 656; Rex v. Carlile, 3 B. & Aid., 161; Cowan v. Milbourne, L. R.. 2 Ex. 230. (X. V.), 289.
 * Rex v. Woolston, supra; People v. Ruggles, S John.