Blasphemy and free speech. THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES GIFT OF Theodore Shroeder ASPHEMY AND FREE SPEECH Being Sample Portions of An Argument Which a CONNECTICUT JUDGE REFUSED TO READ ^nnted to Promote the Repeal of Blasphemy Laws. THEODORE SCHROEDER 14 WEST TWELFTH ST. NEW YORK CITY CONSTITUTIONAL FREE SPEECH DEFINED MND DEFENDED Will be the Title of a Book Containing the Complete Argument with a Review of the Judicial Action Thereon, FREE SPEECH LEAGUE 56 EAST 59rn ST., N. Y. CITY, 1918 INTRODUCTION The following pages present parts of an argument which Judge F. M. Peasley refused to read, and yet overruled. Thus the constitutional ques- tions are settled so far as his court is concerned. That decision is now a legitimate subject for public discussion, and is of great public importance. I am aware that the Judge's refusal to read most of my argument carries the humiliating implication of my intellectual bankruptcy. However, I am prideless and shameless enough actually to print the discrediting evidence of my inferiority. Even this has its compensations. I know that in so far as my humiliation is merited, it becomes the means and the measure of my contribution to the judge's exaltation. By a very elaborate and unprecedented study of the historical issues of religious liberty, I foolishly hoped to promote a more refined sense of justice and a clarified view of constitutional liberty and democracy. The Judge saw my futility even before reading my discussion. This, too, has ifs compensations. Therefrom we may learn that judicial dignity can be maintained by politely ignoring the unconscious triflers, like myself; that judicial fair play is best enhanced by refusing to read and answer such arguments as this one; also, that the superiority of the judicial intellect is best vindicated by silently rebuking such dullards as myself, when we pre- sume to assist and to enlighten the court. It was Judge Peasley's right and duty to decide that this method is the more intelligent. NOW I APPEAL TO THE PEOPLE AND TO THE LEGISLA- TURE FOR A HEARING AND FOR THE REPEAL OF THE BLAS- PHEMY STATUTE. THEODORE SCHROEDER. NEW YORK CITY. of (Enmtwttnrt DISTRICT COURT OF WATERBURY. 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, further proceedings in the case were continued for the term, during which time the argument in support of the demurrer 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- necticut 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 against blasphemy is unconstitutional under several pro- visions of both State and National constitutions. 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 dollars, and imprisoned in a jail not more than one year, and may also be bound to his good behavior." A. D. 1642- 1821, Kev. 1888, Sec. 1535. CONNECTICUT CONSTITUTION, DECLARATION OF EIGHTS, 1818. Sec. 1. "That all men when they form a social compact, are equal in rights; and that no man or set of men are entitled to exclusive public emoluments or privileges from 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 Christian sect or mode of worship." Sec. 5. "Every citizen may freely speak, write and pub- lish his sentiments on all subjects, being responsible for the abuse of that liberty." 14 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 powers 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 property, without due 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 constitutional provisions, the line of demarcation between liberty and its unconstitutional 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 accomplish- 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 the fourteenth amenclmeu". 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 violate 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 ex- 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 18 BLASPHEMY. 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 injury. 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, 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 OP 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 Buch laws, and see them as the very evils which om- 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 soul" 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 was 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. A 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 constitution 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 aiso 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." 1 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 1 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 IILASI'IIEMY 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." 2 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. 3 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. 4 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. DlVINE-RlGHT-KULE 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 bishops 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. 5 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. 4 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. & Randle (Pa.), 394-401. But for modern British attitude see: Bowman v. Secular Society, Ltd. Law Reports, Appeal Cases, Part IV Aug. 1, 1917, pp. 406-478. * 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." 7 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. 8 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, claiming to be a spiritual king of Israel having power over the enemies 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. Lodowicks 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'a 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 lie 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 pur- port for that which was undemocratic. A REVIEW OF BLASPHEMY PROSECUTIONS. 359 KULE 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, 9 under the heading of "Offenses against religion," includes this: "All profane scoffing of the holy Scripture, or exposing any part to ridicule and contempt." 10 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. * * * Eeviling 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." 11 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. 10 Hawkin's Pleas of the Crown (seventh edition, 1795), v. 1, chap. 5, p. 12. See also quotations in chap. 12, herein. u 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." 12 This view that it is a crime to deny the Trinity is abundantly justi- fied by cases of which an abstract has been hereinbefore published. 13 Abraham Bishop in a Preface to the publication of an "Oration delivered at Wallingford on the llth 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 trom 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- 11 Holt ; Law of Libel, 1816, second edition, pp. 63-166. "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. 323; 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; (?) Williams, 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,' " 14 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 Mcene 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 14 P. 6, Johnathan Steadfast [pseud.], Hartford, 1804. 3G2 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 schisniatical 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 Romans. 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. Knolles 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 Norwood (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- 304 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. John 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 blasohemous 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. 865 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 aa 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 OF 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. Eoger 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. Roger 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." 15 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 11 Bloody tenet of persecution, p. XV, edition of Lond., 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. 16 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 and un- necessary institution." 17 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 OP BLASPHEMY PROSECUTIONS. 369 the conflict between blasphemy prosecutions and consti- tutional religious and intellectual liberty. The correct- ness of tli is 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 constitutional 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 be- 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 witches he (Lord Hale) made no doubt at all; For first, the scrip- tures had affirmed so much. Secondly, the wisdom of all nations had provided 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" (p. 50). "In 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." 18 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." 19 But to flatly contradict "any part" 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 Bale'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 affirm the belief in Witchcraft: u See 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." 20 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, II." 21 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, II." 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 1 The Witchcraft Delusion in Colonial Connecticut, 1647-1697, by John M. Taylor, p. 17. 'Colonial Records of Connecticut, vol. 1, p. 77. '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 principles 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 this statute must be declared unconsti- tutional. 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. 1 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. KOGER 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 calling 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 been under their suspicion for some time for his too great liberality, and the circumstance of his expulsion has been briefly related. 1 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 gospel" 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 2 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 of 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. 430 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 mal^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 Island 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 OP THE PEACE. When Williams was told that he erred in defending the rights of those who expressed themselves with such "ar- rogance an 6AYLORD BROS. Inc. Syracuse, N. Y. Stockton, Clif. A 001 001 812 5 Univen Soul Lib