Commonwealth v. Kneeland , 37 Mass. 206 ( 1838 )

Shaw C. J.

delivered the opinion of a majority of the Court. This cause was argued some time since, and partly on account of the intrinsic difficulty attending some of the questions raised in the case, and a difference of opinion among the judges on some of those questions, it has stood over for consideration and advisement, to the present time.

The indictment may be considered both as a charge ot composing, printing and publishing an impious, obscene and blasphemous libel, and also as a direct charge of the crime of blasphemy. It is perhaps immaterial, whether the present indictment be considered as principally charging the one or the other ; because, although these offences are in many respects, technically distinct, and may be differently charged, yet the same act may and often does constitute both ; and the present indictment contains averments applicable to both. The latter consists in blaspheming the holy name of God, by denying, cursing or contumeliously reproaching God, his creation, government or final judging of the world ; and this may be done by language orally uttered, which would not be a libel ; but it is not the less blasphemy, if the same thing be done by language written, printed and published, although when done in this form it also constitutes the offence of libel.

The case was argued both on a motion in arrest of judgment, and on a motion for a new trial, on a report made by the judge who presided at the trial. It is perhaps a subject of regret, that the cause was argued by the defendant himself, without the aid of counsel competent to assist him, since it may leave some reason to apprehend, that the questions really intended to be submitted to the consideration of the Couit, may not have been presented in the manner best adapted to a clear and satisfactory statement and discussion of them. The defendant however had a perfect right thus to conduct his defence ; and it is in no other respect a subject of regret, than that it throws upon the Court some embarrassment, arising from the difficulty of comprehending the precise grounds of defence, which the defendant intended to take at the trial, and which he wishes the Court now to revise.

The indictment charges the defendant in the terms of the statute, by alleging that he did, at the time and place, &.C., wilfully blaspheme the holy name of God, by denying and contumeliously reproaching God, his creation, government and final judging of the world ; and it proceeds to allege the means of doing this to be, by composing, printing and publishing a libel, setting out in terms, various passages from that publication. Among other parts of this libel, the following passage was relied on, connected with evidence of the intent and purpose of the publication, to prove the blasphemy, by denying God, and his creation, government and final judging of the world, viz. “ Universalista believe in a god which I .do not; but believe that their god, with all his moral attributes (aside from nature itself) is nothing more than a mere chimera of their own imagination.” The other parts of the publication, many of which are set out at large in the indictment but which it is not necessary to repeat, were relied upon, to show the sense, in which the language was used, and the intent, design and purpose, with which it was used.

The motion in arrest of judgment, relies mainly upon twc grounds;

1. That the language of the defendant, as set forth in the indictment, is not such as to constitute blasphemy, within the true meaning and construction of the statute ; but if held otherwise, then,

2. That the statute itself is contrary to the constitution of the Commonwealth; and therefore that the statute itself is inoperative and void.

That part of the provision of the statute, on which the question arises, is as follows ; “ That if any person shall wilfully blaspheme the holy name of God, by denying, cursing, or contumelious!}' reproaching God, his creation, government, or final judging of the. world,” &c. St. 1782, c. 8. This provision is reenacted in the same terms by the revised statutes. Revised Stat. c. 130, § 15.

In order to pass a proper judgment upon the construction and operation of the statute, it becomes necessary to ascertain with as much clearness as practicable, what is intended to be prohibited by it, under the term “ blasphemy.”

In general, blasphemy may be described, as consisting in speaking evil of the Deity with an impious purpose to derogate from the divine majesty, and to alienate the minds of others from the love and reverence of God. It is purposely using words concerning God, calculated and designed to impair and destroy the reverence, respect, and confidence due to him, as the intelligent creator, governor and judge of the world. It embraces the idea of detraction, when used towards the Supreme Being ; as “ calumny ” usually carries the same idea, when applied to an individual. It is a wilful and malicious attempt to lessen men’s reverence of God, by denying his existence, or his attributes as an intelligent creator, governor and judge of men, and to prevent their having confidence in.him, as such. Blackstone, according to bis usual mode of describing each offence in the shortest possible terms in which it may be made intelligible, speaks of it as “ blasphemy against the Almighty, by denying his being ot providence.” 4 Bl. Comm. 59.

These definitions and descriptions from lexicographers and ’aw writers, might be indefinitely multiplied ; but it would throw little light on the subject. So in the eailier statutes of the Colonial and Provincial governments, though they multiply epithets, and m some respects change the phraseology, they do not essentially alter the idea. That of the Colony, in 1646, was in this form ; “If any person shall wittingly and willingly presume to blaspheme the holy name of God, Father, Son, or Holy Ghost, with direct, express, presumptuous, or high handed blasphemy, either by wilful or obstinate denying the true God, or his creation, or government of the world,” &c. Anc. Charters, &c., 58.

The Provincial Act of 1697 is thus expressed ; “ If any person shall presume wilfully to blaspheme the holy name ol God, Father, Son, or Holy Ghost, either by denying, cursing or reproaching the true God, bis creation or government of the world,” &c. Anc. Charters, &c., 302.

In all these different descriptions of the offence, one idea is common to them all, which is, that the wilful denial of God, and of his creation and government of the world, with an intent anti purpose to impair and destroy the reverence due to him, is the offence intended to be prohibited.

With these views of what is intended to be prohibited and made penal by the statute, the question again recurs, whether this crime and offence is properly and sufficiently charged in this indictment. After verdict, all the facts legally and properly charged in the indictment, must be taken to be true, and the only question is, whether these facts, when proved, constitute a legal and indictable offence. The offence is charged nearly in the words of the statute. After the usual introductory averments of unlawful intent and disposition, and after alleging the publication of the libel by the defendant, describing it in general terms, and describing him as the editor and publisher, it proceeds to aver, that the defendant did wilfully blaspheme the holy name of God, by denying and contumeliously reproaching God, his creation, government and final-judging of the world, and by reproaching Jesus Christ and the Holy Ghost, and contumeliously reproaching the holy word of God. It then proceeds to cite sundry passages, from the publication thus characterized, as particular instances, and specifications of the general charge thus made, among which are those afterwards alluded to.

We believe it is a well settler! rule in considering indictments, chat where an offence may be committed in any one of several different modes, and the offence, m any particular instance, is alleged to have been committed in two or more modes specified, it is sufficient to prove the offence committed in any one of them, provided that it be such as to constitute the substantive offence. So where the offence is charged in general terms, and specifications are given, if any one of the specifications will support the substantive charge of crime, it is sufficient. The statute manifestly contemplates various modes, in which the offence may be committed, as by denying, or 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. St. 1782, c. 8. These are obviously alternatives, and either one of the acts constitutes the offence contemplated. Now, although the indictment charges the offence to be committed in several of the modes contemplated, yet if it is done in either of the modes, by the act imputed to the party indicted, it is a sufficient charge of the offence, and if proved, would be a sufficient ground of conviction, although the instances cited and specified, would not constitute a sufficient charge of the offence in all the modes included in the general averment. The statute strongly marks two modes, by which one may wilfully blaspheme, to wit, by denying God, his creation, government or final judging of the world, or, by cursing or contumeliously reproaching God. If the general averment alleges blasphemy in both these ways, and if the language cited by way of specification, and imputed to the defendant, does amount to a denial of God, his creation, 8tc., but does not amount to a contumelious reproach, or on the contrary, if it amounts to the latter, but not to the former, it is sufficient, because it contains the substantive charge of wilfully blaspheming.

Among the specifications in support of the general aver ment, and the one mainly relied on, to sustain the charge of denying God and his creation, government and final judging of the world, are those in relation to the Universalists, alleged to be wilfully uttered, of and concerning God, &c.

1. “ Universalists believe in a god which I do not; but believe that their god, with all his moral attributes (aside from nature itself) is nothing more than a mere chimera of their own imagination.

2. Universalists believe in Christ, which I do not; but believe that the whole story concerning him is as much a fable and a fiction as that of the god Prometheus, the tragedy of whose death is said to have been acted on the stage in the theatre at Athens, 500 years before the Christian era.

3. Universalists believe in miracles, which I do not; but believe that every pretension to them can either be accounted for on natural principles, or else is to be attributed to mere trick and imposture.

4. 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.”

It is a general rule of construction, in actions of slander, indictments for libel, and other analogous cases, where an offence can be committed by the utterance of language, orally or in writing, that the language shall be construed and understood in the sense in which the writer or speaker intended it. If therefore obscure and ambiguous language is used, or language which is figurative or ironical, courts and juries will understand it according to its true meaning and import, and the sense in which it was intended, to be gathered from the context, and from all the facts and circumstances under which it was used. There is no doubt that the language cited, if used in the connexion and with the intent and purpose charged in the indictment,, will amount to the offence contemplated in the statute ; for although the form of the' expression used by the defendant, was a denial of his belief, if under this form a wilful denial of the existence of God, his creation, &c., was intended, the language is sufficient to constitute a denial, within the meaning of the statute. Whether they were used with such unlawful intent and purpose, was a question upon the whole indictment and all the circumstances, and after verdict, if no evidence was erroneously admitted or rejected, and no incorrect directions in matter of law were given, it is to be taken as proved, that the language was used in the sense, and under the circumstances, and with the intent and purpose, laid in the indictment, so as to bring the act within the statute. However the law may have stood prior to 1782, the act then passed obviously intended to make a marked distinction between those acts which go to the denial of any God. and those affecting the Christian religion ; in regard to the former, it is made unlawful and punishable, wilfully to blaspheme the holy name of God, by denying God, his creation, government, and final judging of the world ; whereas in regard to the other, it can only be by cursing or reproaching Jesus Christ, &c., and not by any denial. The true meaning of the statute therefore, in this respect, seeriis clear and plain. But the word “ deny ” need not be used in the commission of the offence ; any words equivalent in meaning, used with the same purpose and design, must be deemed to have the same legal effect. The law does not look to the language alone, but to the ideas of which" that language is the intelligible expression.

2. But another ground for arresting the judgment, and one apparently most relied on and urged by the defendant, is, that this statute itself is repugnant to the constitution of the Commonwealth, and therefore wholly void.

It seems now to be somewhat late to call in question the constitutionality of a law, which has been enacted more than half a century, which has been repeatedly enforced, and the validity of which, it is believed, until this prosecution, has never been doubted, though there have been many prosecutions and convictions under it. It was itself a revision of the colonial and provincial laws, to the same effect, already cited. It was passed very soon after the adoption of the constitution, and no doubt, many members of the convention which framed the constitution, were members of the legislature which passed this law. In 1820 another convention was called to revise the constitution, the subjects of religious freedom and of universal toleration were long and earnestly discussed, but no suggestion was made, that the statute of 1782, against blasphemy, was in violation of the Declaration of Rights. More recently, upon a general and careful revision of our whole body of statute law, the law in question was reenacted, with some unimportant modifications, not affecting the present question. Revised Stat. c. 130, § 15.

In New Hampshire, the constitution of which State has a similar declaration of rights, the open denial of the being and existence of God, or of the Supreme Being, is prohibited by statute, and declared to be blasphemy.

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 conturneliously reproach bis 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.

The State of Maine also, having adopted the same constitutional provision with that of Massachusetts, in her declaration of rights, in respect to religious freedom, immediately after the adoption of the constitution, reenacted the Massachusetts statute against blasphemy, with unimportant modifications.

In New York the universal toleration of all religious professions and sentiments, is secured in the most ample manner. It is declared in the constitution, art. 7, § 3, that the free exercise and enjoyment of religious worship, without discrimination or preference, shall for ever be allowed in this State to all mankind ; with the only limitation, that the liberty of conscience, thus secured, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of the State. Notwithstanding this constitutional declaration, carrying the doctrine of unlimited toleration as far as the peace and safety of any community will allow, the courts have decided that blasphemy was a crime at common law, and was not abrogated by the constitution. People v. Rugg'es, 8 Johns. R. 225.

But in order to test this argument more closely, that the statute against blasphemy is unconstitutional, it becomes necessary to consider those clauses in the Declaration of Rights which are supposed to he violated bv this law.

It is contended that it is opposed to the 16th article, which provides that “ 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.” The obvious intent of this provision was to prevent the enactment of license laws, or other direct restraints upon publication, leaving individuals at liberty to print, without the previous permission of any officer of government, subject to responsibility for the matter printed. According to the argument attempted to be drawn from this article, every act, however injurious or criminal, which can be committed by the use of language, may be committed with impunity, if such language is printed. Not only therefore would the article in question become a general license for scandal, calumny and falsehood against individuals, institutions and governments, in the form of publication, a form in which it would be the most injurious, and most speedily, certainly and extensively diffused ; but all incitation to treason, assassination, and all other crimes however atrocious, if conveyed in printed language, would be dispunishable. A mere statement of the direct and obvious consequences of the doctrine contended for, shows that it cannot be sound. The manifest object of the Declaration of Rights was, to give the most explicit and abiding sanction to some of the general principles, supposed to be essential to the maintenance of free government, for the general guidance and regulation, as well of the legislature as of the people. The intention of the article in question was, to insure the general right of publication, at the same time leaving every citizen responsible for any offence capable of being committed by the use of language, as well when printed, as when oral, or in manuscript. Any other construction of the article would be absurd and impracticable, and inconsistent with the peace and safety of the State, and with the existence of free government.

The other article supposed to be violated by this law, is the second, and is as follows ;

“ It is the right, as well as the duty, of all men in society, publicly, and at stated seasons, to worship the Supreme Being, the great creator and preserver of the universe. And no subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping God in the manner and season most agreeable to the dictates of his own conscience ; 01 for his religious profession or sentiments ; provided he doth not disturb the public peace, or obstruct others in their religious worship.” In order to ascertain whether the statute against blasphemy is contrary to the- letter or to the spirit of this constitutional article, it is necessary to ascertain what the statute in fact prohibits, and then see whether the act thus prohibited, is one which the article allows. For this purpose it is necessary again to recur to what has been already stated to be the legal effect of the statute. It makes it penal wilfully to blaspheme the holy name of God, &c. The word “ toilfully,’ in the ordinary sense in which it is used in statutes, means not merely “ voluntarily,” but with a bad purpose, and in this statute must be construed to imply an intended design to calumniate and disparage the Supreme Being, and to destroy the veneration due to him. It does not prohibit the fullest inquiry, and the freest discussion, for all honest and fair purposes, one of which is, the discovery of truth. It admits the freest inquiry, when the real purpose is the discovery of truth, to whatever result such inquiries may lead. 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.' He may do it inadvertently in the heat of debate, or he may avow it confidentially to a friend, in the hope of gaining new light on the subject, even perhaps whilst he regrets his unbelief; or he may announce his doubts publicly, with the honest purpose of eliciting a more general and thorough inquity, by public discussion, the true and honest purpose being the discovery and diffusion of truth. None of these constitute the wilful blasphemy prohibited by this statute.

Taking this to be the true meaning, intent and construction of this statute, the Court are of opinion that it is not repugnant to the second article of the Declaration of Rights. That article is to be expounded with reference to every othei clause and prov’sion of the constitution, and to its whole spirit and character as a system of government, to be gathered from all its constituent parts, and from the existing laws, the known prevailing principles, and other circumstances of the times in which it was made and adopted. Its object was to secure the utmost possible latitude of toleration for every species of religious sentimeñt, and for the avowal or profession of every species of religious opinion. But taking it in connexion with other parts of the constitution, and especially with the third article, which is too familiar to need citation, it is impossible to believe that the authors of this article intended to prohibit the legislature from reenacting a law, which had been in force from the first settlement of the country, a law thought essential to preserve the sanction of oaths, prescribed and required in every clause almost of the constitution, and which had hitherto been deemed essential to the peace and safety of society. The question is not, whether the makers of the constitution were right in this belief, or whether, if the constitution were now to be made, it would be wise to enlarge or restrict the powers of the legislature in this behalf; but if from the article as it stands, taken in connexion with the whole con stitution, it cannot be clearly inferred that it was their intention to repeal the laws against blasphemy, and prohibit the legislature from reenacting them, then it cannot be maintained that this act of the legislature is unconstitutional and void. But understanding the statute against blasphemy as we do, and as we have already explained it, that it is 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, it is not repugnant to, but entirely consistent with, this second article of the Declaration of Rights. Such being the opinion of the Court, the motion to arrest the judgment cannot be sustained, on either ground.

3. The other questions arise upon the motion for a new trial, founded on the exceptions to the charge of the Court in matters of law, as stated in the report. The report is very brief and relates only to two points. One of the principal difficulties in the case has arisen, not so much from any difference of opinion as to the nature of the crime of blasphemy, or constitutionality of the statute prohibiting and punishing that offence, as from the form of this report, and the few and brief terms in which the exceptions are stated. Some of the Court were apprehensive, considering the form of this report, that the cause was left to the jury upon grounds too narrow and restricted, instead of being fully left to them upon the whole merits, embracing all questions of law and fact, including of course the fact of publication and the motive, intent and purpose with which it was made. This apprehension was somewhat strengthened by an admission made by the attorney general, at the argument, that on the trial, he relied mainly on that part of the publication mentioned in the report, viz., “ Universalists believe in a god which I do not; but believe that their god, with all his moral attributes (aside from nature itself) is nothing more than a chimera of their own imagination,” as constituting the gist of the offence, referring however to all the other parts of the publication, for proof of the quo animo, and to show the sense in which the words were used ; from which there was reason to apprehend that, especially as the defendant did not avail himself of the aid of counsel to state his defence and his exceptions, that the jury might have understood the judge to charge, that a mere avowal of disbelief in the being of God, would bring one within the operation of the statute, without regard to the occasion, intent or purpose of mind with which it was done. If such had been the charge, it would have been impossible, we think, to sustain it, in point of law, and the verdict ought to be set aside. But upon the strictest examination of this report, a majority of the Court are of opinion, that the report is not to be so understood. The report is not and does not profess to be, a statement of the whole course, or of any considerable part, of the proceedings at the trial. The true way of considering the questions reserved by it is this. 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 he is not bound to give instructions, upon any particular questions, unless his attention is called to them, and they are particularly requested, in which case, if pertinent, instructions will be given, and if the judge thinks proper, he will reserve the question of their correctness. But the presumption is, after verdict, that all necessary and proper instructions, in matter of law, for the aid and information of the ;ury, were given, and it must of necessity be presumed that such instructions were legally correct, where no exceptions have been taken and no points reserved. We are not therefore at liberty to presume, that the jury were instructed, or left to understand, that a mere avowal of disbelief in the being of God, &c., would constitute the crime prohibited by the statute ; but they must have understood, that to constitute the crime of blasphemy, the language of the defendant, explained and understood by the context, must have amounted to a wilful denial of God, his creation, government and final judging of the world, with the unlawful intent and purpose necessary to constitute such denial blasphemy, and that upon the whole evidence, the jury found the use of such language, with such unlawful intent; and the report furnishes no ground to believe that such finding was against the evidence. Such are the legal and necessary presumptions from the record, and unless contradicted or controlled by the report, they must stand. All then that appears or can be legally inferred from the report is, that out of a general charge upon the law and the evidence, embracing the general merits of the prosecution, two or three points were selected, to which exceptions were taken, and a very short report was made of so much of the charge as to make them intelligible. If these exceptions cannot be sustained, the general presumption in favor of the verdict must prevail

The first exception turns upon a question of grammatical construction. The sentence quoted is this ; “ Universahsts believe in a god which I do not.” It was contended by the defendant, that from the use of a small letter in the word god, and from the punctuation, the grammatical construction was, that it was used in a peculiar sense, as the creed, or tenets, or form of belief, of the Universahsts, as we speak of the god of the Mahommedans, or Hindoos, or Chinese, the being understood, conceived and apprehended by the Mahommedaus or Pagans respectively, and that the same form of words was nounfrequently used among different sects of Christians. The opinion expressed by the Court was, that in its obvious grammatical construction, it was equivalent to a denial of his belief in the existence of any God, that is, any God other than the material universe ; but it was at the same time stated to the. jury, that they were not bound to understand that the meaning was to be wholly learned from such grammatical construction, if from the whole publication they were of opinion, that such was not the meaning of the writer. The Court are of opinion, that this construction was correct. It is perhaps extremely immaterial, because the jury were authorized and directed to ascertain the meaning from the whole publication, under which direction a minute and critical grammatical construction would probably be regarded as of minor importance.

4. The other exception is attended with more difficulty ; but upon full consideration, a majority of the Court are of opinion, that the difficulty arises rather from the brief and perhaps too unqualified form in which the report is made, than from any misdirection actually given. It is stated thus in the report. “ I also instructed the jury, that the wilful denial of -the existence of any God, except the material universe itself, would be a violation of the statute, and that the statute was a constitutional law.”

From this sentence, taken without its known connexion with the record, with the evidence actually before the Court, and the grounds taken for the prosecution and defence, as a naked, insulated statement, it might appear to have been stated as law, that a wilful, that is, intentional or purposed denial of the existence of any God, other than the material universe, without regard to the motive, design or purpose, would constitute blasphemy, within the statute. But we think, from the known state of the questions before the Court, and the arguments used, that this instruction was given with the qualifications and illustrations, which the state of the case required ; that the term “ wilful,” in this report, does not merely mean “ designed ” or “ intentional,” but has a much more extensive ^nd significant meaning. It was contended on the part of the defendant, that to constitute wilful blasphemy within the statute, there must be some cursing or contumelious reproach of God. But it was contended on the part of the prosecution, that the statute is in the alternative, and that it indicates several modes in which wilful blasphemy may be committed. That one is, by denying God, his creation, government and final judging of the world ; another, by cursing or contumeliously reproaching God, &c. ; and another by cursing or reproaching Jesus Christ, &c. It was in regard to this controverted point, which lay at the foundation of the prosecution, that the judge was called on to give an opinion. And we think, from a fair construction of the report, that he instructed the jury that a wilful denial of God, his creation, &c., that is, a denial with the injurious, unlawful intent, to impair and destroy the veneration due to him, as an intelligent creator, governor and final judge of the world, implied in the word toilful, did constitute the oJFence intended to be prohibited and punished by the stat nte, although no words of malediction, reproach or contumely towards God, Jesus Christ, or the Scriptures, were coupled with it. Understood in this sense, the Court are of opinion that the instruction was correct, and that the exception cannot be maintained.