Supreme Judicial Court of Massachusetts

“ There can be no crime in law without a criminal intent. And this gives a broad and plain boundary between the real freedom of conscience, of discussion and of the press, and the abuse of it by wanton and malicious attacks upon the rights and privileges of other individuals, or of the community. If the object be to communicate facts, to discuss subjects with a view to ascertain the truth, or to disseminate opinions honestly entertained, then it is a legitimate exercise of the freedom of speech or of the press. ”

“ Let each man so use his own freedom, so enjoy his own faith, and so advocate his own doctrines, as not to interrupt the full enjoyment of the same rights by others. It cannot be necessary or expedient that any man, in the inculcation of his own notions, should abuse or insult others. And I have no doubt that a law punishing malicious falsehoods or obscene, profane or blasphemous language, used with the malicious intent to injure others, is constitutional. ”

“ Is liberty of action less important than liberty of speech? Is personal freedom less sacred than the freedom of the press? With a single exception, there is no restraint upon the legislature in relation to the punishment of speech. They can punish for acts and for words, but it is argued that they cannot punish for any thing printed. Verbal slander, profanity, obscenity and blasphemy, may be interdicted, but the moment it is put in print it becomes privileged and is above legislative control. ”

“ Although the power exist, yet in my opinion it should never be called into action, except in cases of a clear and palpable infringement of the constitution. A frequent resort to it by different public functionaries, would produce such instability and uncertainty in our laws as would be productive of incalculable mischief. Such variant opinions are entertained of different clauses of the constitution and their application, that a statute which one would enforce, another would disregard, and the people would never know what they might rely upon as the law of the land. ”

“ To authorize a civil suit for an injury inflicted by the press, would necessarily operate as some restraint upon what the defendant calls the liberty, but what seems to me to be the licentiousness of the press. The power which determines in what form and to what extent a publisher shall be responsible, must, from its nature, be the legislative power. The above concession admits that libellous publications may be individual wrongs. Every crime is a private injury, as well as a public offence. ”

“ If either of these meanings be adopted, I cannot think that they will give to the denial the qualities necessary to constitute blasphemy. A voluntary denial does not amount to the offence. And it must be remembered, that in making the denial the defendant might be in the exercise of a legal right. And in my opinion, to exercise a right to assert or deny any thing obstinately, stubbornly, unreasonably, inflexibly or even perversely, will not necessarily convert it into a crime. To constitute a crime, there must be an infringement of the rights of others and a malicious purpose. ”

“ But having formed, from the best lights within my reach and the fullest examination in my power, some opinions different from those of my learned brethren, and having come to an opposite result, I do not feel at liberty to withhold them. For however highly I may respect the judgments of others, I cannot implicitly yield to them; and however deeply I may distrust my own, I am bound to be governed by its dictates. ”

“ If I have had any success in my attempt to discuss this subject, I have shown that a man may make such denial, and yet not be guilty of any indictable offence. The jury might well have understood that their duty did not require them to pass upon the question of malice or corrupt intent.
27 Every person has a constitutional right to discuss the subject of a God, and to affirm or deny his existence. I cannot agree that a man may be punished for wilfully doing what he has a legal right to do. ”

“ For a man has a right to avow and promulgate his belief and to support it in the best manner he is able. To complete this offence, in my judgment, there must be not only a denial of God, but it must be done in a manner and in language justly offensive to others and attended by a corrupt and malicious intent; in other words, it must be blasphemously done.
24 That this is the proper construction to be put upon the statute, I think will appear very clearly by an examination of the true meaning and import of the term blasphemy, in common acceptation as well as in legal language. ”

“ But if the object be to calumniate, or wantonly or maliciously to cause pain or injury to others, by wounding their feelings or corrupting their principles, then it is an abuse of that freedom and the proper subject of criminal legislation. The question of malice is always a question for the jury. ”

“ And yet when the defendant comes to move in arrest of judgment, that what he has done cannot amount to blasphemy, because it was not done with an evil intent, he is told that that is found by the verdict and must be taken to be true. But I do not rest my opinion upon any supposed misapprehension of the jury or any liability in the language of the charge to mislead. I think the instruction upon any admissible interpretation of the language, is incorrect in principle. The position laid down is, that a wilful denial of the existence of a God is blasphemy. ”

“ There is nothing certainly more unreasonable, more inconsistent with the rights of human nature, more contrary to the spirit and precepts of the Christian religion, more iniquitous and unjust, more impolitic, than persecution. It is against natural religion, revealed religion and sound policy. ”

“ In Vermont, with a similar declaration of rights, a statute was passed in 1797, by which it was enacted, that if any person shall publicly deny the being and existence of God or the Supreme Being, or shall contumeliously reproach his providence and government, he shall be deemed a disturber of the peace and tranquillity of the State, and an offender against the good morals and manners of society, and shall be punishable by fine, and be bound to his good behaviour. ”

“ It does not prevent the simple and sincere avowal of a disbelief in the existence and attributes of a supreme, intelligent being, upon suitable and proper occasions. And many such occasions may exist; as where a man is called as a witness, in a court of justice, and questioned upon his belief, he is not only permitted, but bound, by every consideration of moral honesty, to avow his unbelief, if it exist. ”

“ Notwithstanding the remarks contained in several of the above citations, I cannot think that any state of mind or temper in reference to God or religion, goes to make up this legal offence. Anger towards God, indignity to him, to our Saviour, or the Holy Ghost, a disposition to scoff at religion, do not seem to me to be the subjects of human punishment. These sins may be committed when no one is present, and be known to God alone; and cannot be reached by a human tribunal. ”

“ For the very existence of power in any branch of government, or in any agent, public, or private, necessarily implies a discretion in the depositary, and therefore must be liable to abuse. The only inference which can fairly be drawn from this source, is, that powers peculiarly liable to abuse should be granted with caution and guarded in the best practicable manner. ”

“ It is the peculiar province of legislation to determine what injuries shall be left to civil suits for redress, and what from their violence or their dangerous tendency shall be deemed legal offences and repressed by the terror of punishment and the sword of the magistrate. The object of both is to protect the people in the possession and enjoyment of their rights and privileges. ”

“ It prohibits the legislature from interfering in questions of heresy, and all prosecutions on account of religion are intended to be abolished. If the legislature or courts are to define religious sentiments, those which are religious to-day may be irreligious to-morrow, according as one sect or another shall be dominant in the Commonwealth, and the constitution will be subverted. Nor can it be argued that the constitution applies merely to opinions secretly entertained; the enjoyment of concealed opinions cannot be restrained by human institutions, for so long as mind exists it must think ”

“ But the notion that the danger of abuse, should prevent the granting of such powers as are necessary to the proper regulation and restraint of civil society, implies a want of confidence in the intelligence and virtue of the people and their selected agents, and is subversive of the fundamental principles of representative government and rational liberty. ”

“ Blackstone, one of the most accurate writers on law, says, "one of the offences more immediately against God and religion, is that of blasphemy against the Almighty, by denying his being or providence, or by contumelious reproaches of our Saviour Christ." ”

“ Universalists believe in the resurrection of the dead, in immortality and eternal life, which I do not; but believe that all life is mortal, that death is an eternal extinction of life to the individual who possesses it, and that no individual life is, ever was, or ever will be eternal:' To the great scandal and contumelious reproach of God, and his holy name, his creation, government, and final judging of the world, of Jesus Christ, and the Holy Ghost, of the holy word of God, and of the Christian religion, against the peace," &c. ”

“ The common law of England, which is only common reason or usage, knows of no prosecution for mere opinions." "Nonconformity is no sin at the common law." See Harrison v. Evans, 3 Bro. Parl. Cases, 470. It is to legislative enactments that all the persecutions in the English church are to be traced. Apostasy, heresy, nonconformity, and all of the class of offences against the established church, are the creatures of express legislation and exist only on the statute book. ”

“ The indictment alleges a violation of the statute, by denying God, and the jury have found that the language used by the defendant means such a denial, and that it was published from bad motives. This is conclusive of the defendant's having committed the offence charged, unless the instruction of the judge was erroneous. But nothing can be plainer than that the word God was used by the legislature to denote that Supreme, Intelligent Being who is alike revered by Christians, Jews and Mahometans, and not the material universe, which the defendant would substitute. ”

“ The friends of truth must trust to reason for its support, and not to courts of justice. See Professor Stuart's letter to Dr. Channing, on the subject of Religious Liberty, (1830,) p. 14 to 17.
5 The statute in question is repugnant also to the 16th article of the Declaration of Rights, viz. "The liberty of the press is essential to the security of freedom in a State; it ought not therefore to be restrained in this Commonwealth." This guaranties to me the strict right of propagating my sentiments, by way of argument or discussion, on religion or any other subject. ”

“ It cannot for a moment be doubted that the legislature has the general power, in their wisdom and discretion, to determine what acts shall be deemed crimes, and to prescribe for them such punishment as they may judge proper, either by fine, by imprisonment, or by the taking of life.
18 *231 The defendant has fallen into the common error of arguing from the abuse of a power against its existence. ”

“ In criminal cases, by the form in which the issue is made up, the jury pass upon the whole matter of law and fact. It is the duty of the judge to give such instructions to the jury in matters of law, as in his judgment may be best calculated to aid and assist them in forming their verdict. ”

“ But if made known, they would not be the subject of punishment, because they inflicted no injury upon any human being, and so did not violate the rights of society. It is only the injury to civil society which can give civil government jurisdiction of them. ”

“ Every violation of a moral law or natura?? obligation, is an injury for which the offender ought to make retribution to the individuals who immediately suffer from it, and is also a crime for which he ought to be punished to that extent which would deter both him and others from a repetition of the offence. ”

“ The defendant availing himself of his constitutional right to manage his own cause, and being not only unused to technical *226 forms and the mode of conducting trials, but unversed in some of the distinctions and principles of criminal law, and the authorities by which they are supported, has been unable to render us all the aid in raising or discussing the points essential to his defence, which might have been derived from the learning and experience of a professional advocate. ”

“ But this in my opinion is too narrow a construction. It is true that the term religious is very often used in a limited sense, frequently as synonymous with pious, and sometimes as denoting devotion to a particular creed or mode of worship. Christians, Jews and Mahometans, Protestants and Catholics, and even different sects of Protestants, reciprocally accuse each other of want of religion. And individuals of every denomination are commonly called religious or irreligious, according to their characters for piety. ”